23 Barb. 13 | N.Y. Sup. Ct. | 1856
As we are satisfied with the views of the learned justice who held the special term, on all the points excepting the one upon which the new trial was granted, it will be unnecessary to consider any except the latter.
Upon the trial it appeared that in November, 1852, the plaintiff’s arm was considerably injured, which she claimed was done by the defendant violently seizing and wrenching it. There was no direct and positive evidence that the injury was occasioned by the defendant. Josiah Trip, a witness for the plaintiff, testified, among other things, that shortly after the plaintiff’s arm was injured he heard her charge the defendant with having injured her arm. This charge was in the pres
The judge, among other things, instructed the jury that if the plaintiff charged the defendant with committing the assault, and he at the same time denied it, then it furnished no evidence against him; but if he remained silent when so charged, the jury might regard it as an admission that he was guilty, or give it such weight as they might think it entitled to. That the jury were to determine. That there was some doubt from the evidence, perhaps, whether the charge, after it had been once made and denied, was repeated on the occasion, and if it was repeated, whether the defendant then remained silent. The judge here explained the nature and principles of such evidence. He stated to the jury, on this part of the case, that they would not probably conclude that the defendant, after he had once emphatically denied the accusation on that occasion, was called upon to deny it again, if the accusation was repeated; but would leave it to the jury to give such weight to his silence when the charge was repeated, if it was repeated, as they thought it entitled to, under the rules which had been stated, as to the effect of remaining silent. It was upon an exception to this part of the charge that the new trial was granted. Upon a fair view of the charge in this respect, we are unable to perceive that any rule of law has been violated. The evidence was all confessedly admissible ; first, by the witnesses Trip and Jewett, that the defendant, when charged with having committed the assault, remained silent; and then, by the wit
The jury would have been justified by the evidence in finding that there was an interval of an hour between the conversation
While it is undoubtedly true, as the jury in this case were instructed, that the charge made by the plaintiff against the defendant furnished no evidence of the guilt of the latter, provided it was promptly denied at the time, it does not follow, nor, as I think, can it be maintained, that such denial is an absolute shield to the defendant for all subsequent occasions when the charge should be repeated. In such case, the effect of the defendant’s conduct when the charge is repeated, is a proper subject for the consideration of the jury, as a circumstance of more or less weight, depending, among other things, upon the length of the interval between the accusation when he denied the charge, and a subsequent one, when he remained silent under it.
Upon the whole, we think the order of the spc-ial term granting a new trial should be reversed, and that the plaintiff should have judgment upon the verdict.
Ordered accordingly.
T. R. Strong, Welles and Smith, Justices.]