Jamison v. Moseley

69 Miss. 478 | Miss. | 1891

Cooper, J.,

delivered the opinion of the court.

This is an action by appellee to recover damages from appellant for an assault and battery by shooting. The plaintiff proved by a witness (Mrs. Smith) that defendant, on the day of the shooting, stated to her that he had shot the plaintiff. He then proved by his physician the character of the wound received, the length of time plaintiff was confined to his bed, and the probable future result of the wound. Other witnesses were then introduced to prove the extent of damages inflicted, and the plaintiff then rested. The defendant then introduced certain eye-witnesses of the difficulty, whose testimony tended to show that the plaintiff was the aggressor in the difficulty, and that the defendant justifiably shot him. The plaintiff then introduced other witnesses, whose testimony tended to prove that the defendant provoked the difficulty, and that the plaintiff, having reasonable ground to apprehend an attack, prepared to defend himself, and was thereupon fired upon and wounded by the defendant. While the evidence introduced by the respective parties was generally favorable to the party by whom offered, some parts of the defendant’s evidence was, in some respects, favorable to the plaintiff, and some parts of that for the plaintiff tended to support the defendant’s defense of justification. It is sufficient to say that the evidence upon the developed case was conflicting, and that a verdict for either party, upon proper instructions, would be sustained.

The court gave many instructions, both for the plaintiff and the defendant. Among those given for. the plaintiff', the fourth, tenth and thirteenth are assigned for error. They are as follows:

“4. The court instructs the jury, for the plaiutiff, that, as the defendant has admitted that he shot Moseley, the burden of proof is on the defendant, and unless the defendant has proven by a preponderance of evidence, so as to satisfy the jury, a full legal justification for the shooting of Moseley, the jury will find for the plaintiff.”

“10. The court charges the jury that if they believe from the evidence that, while the plaintiff was in the discharge of his duties as an attorney, the defendant used language to the plaintiff' that was irritating, and thereupon the plaintiff retorted in like language, and then the defendant demanded to know to whom plaintiff referred, making a movement at the time as if to draw a pistol, apparently aggressive, and then plaintiff made an effort to defend himself, and thereupon was shot and wounded by the defendant, they will find for the plaintiff, and will give him such damages,” etc.

“13. The court instructs the jury, for the plaintiff, that if they believe from the evidence that the plaintiff' has shown that he was shot and wounded by the defendant, as alleged in plaintiff’s declaration, and that the plaintiff’s evidence showing such assault and battery failed to show any excuse, justification or mitigation of such assault and battery, and that plaintiff further showed in evidence that he suffered actual damages in loss of time and money expended, amounting to §259, and other actual damages, consisting of mental and physical suffering, then the jury will find for the plaintiff the amount of such actual damages, so shown in evidence, including what they may deem adequate compensation for mental and physical suffering, unless they believe from the evidence that the defendant is proven, by a preponderance of the evidence, to their satisfaction, to have been justified in so shooting and wounding plaintiff; and if said evidence, so introduced after’ plaintiff’ had established his right to recover, leaves the matter in doubt as to whether the defendant was justified or not, then the jury must, under their oaths, find for plaintiff',” etc.

It is proper to state, before considering these instructions, that by our statute (Code 1880, § 1549) the defendant, in an action for assault and battery, under the plea of “ not guilty,” may give in evidence mitigating circumstance to reduce the damages, notwithstanding he may also have pleaded a justification. The rule announced by the fourth and thirteenth instructions for the plaintiff, which is, in effect, that a defendant in an action for assault and battery, who seeks to justify the battery, has the burden of proof upon that issue, is correct; but, as stated in these instructions, and under the peculiar development of the case by the plaintiff, it should not have been given to the jury, or, if given, the jury should have been advised of the circumstances of its application. A plaintiff may not invoke the principle as an aid to him in making out his case, and more especially may he not, by withholding his evidence which should be put in in chief, and developing it as rebutting the defendant’s case, gain án advantage by indirection to which he would not, be entitled if he had proceeded in the ordinary method of disclosing his ease.

There were many witnesses of the difficulty, several of whom were in attendance at the trial in the plaintiff’s behalf. Instead of disclosing the circumstances of the rencounter by the testimony of hiá witnesses, the plaintiff resorted to proof of an admission made by the defendant to one who was not present, that he had shot the plaintiff, and, having then proved his damages, rested his case, thus forcing the defendant to first disclose the circumstances of the shooting, and holding his own evidence in reserve, to be used to rebut the defense, rather than to establish his own case. The manifest purpose of this course of procedure was to wrench the rule of law, that one who relies upon an affirmative defense must establish it, to the prejudice of the defendant, and to gain an undue advantage by refusing to fully develop his own case. In the administration of justice, there are many arbitrary and abstract rules and principles which experience has shown to be essential. But the eud and purpose of all of them is, that justice, in the concrete case, shall be reached, and it is not permissible to evade or misapply them. The burden of proof on the whole case was upon the plaintiff, and if, in making out the whole case, the plaintiff’s evidence showed, or tended to show, that the shboting by the defendant was lawful under the ch’cumsfauces, the defendant was entitled to the benefit of such evidence. The presumption of law is, that a battery is malicious or unlawful; but, when the facts are fully disclosed, there is no longer room for presumption, and if, on all the facts, the jury is unable to say that the battery was unlawful, the plaintiff must fail of recovery.

The tenth instruction is erroneous, for the reason that it permits a recovery by the plaintiff if he misinterpreted the purpose of the defendant in “making a movement at the time as if to draw a pistol, apparently aggressive,” and thereupon made an effort to defend himself (by drawing his own pistol), and was then shot by the defendant.

The defendant contended, and introduced evidence to show, that the movement to which this instruction refers was the innocent one of taking his hand from the top of his cane, and placing it upon his lap (he then being seated) without any intention to draw a weapon or to assault the plaintiff', who immediately began to draw his pistol, whereupon, he, the defendant, drew his own, and fired simultaneously with,, or a little after the plaintiff1.

Under the instruction as given, the plaintiff was justified in acting upon appearances, while the defendant was denied the right to act upon the facts as he contends they existed. If the parties used irritating language towards each other, and the defendant made “a movement at the time.as if to draw a pistol, apparently aggressive,” but in fact was not intending either to draw a weapon or to assault the plaintiff, and the plaintiff', misinterpreting the defendant’s act, thought it necessary to defend himself by shooting the defendant, we are not aware of any principle of law under which the defendant was precluded from anticipating the imminent and impending attack, so long as, in so doing, he acted only in necessary self-defense. Under the tenth instruction, this right was distinctly denied him.

Reversed and remanded.