66 Mo. 381 | Mo. | 1877
— Plaintiff, appellant, sued the defendant for damages for an assault and battery. The verdict was for defendant, and from the judgment thereon plaintiff’ appeals. The plaintiff, as a witness, in his testimony, threw all the blame of the conflict upon defendant, but the weight of evidence was to the effect that plaintiff first assaulted defendant with a cane, choked him, and had him down on the floor in a saloon, when his finger was severely bitten by defendant. The only attempted corroboration of plaintiff’s version of the difficulty, and it amounted to no corroboration, was the testimony of St. Clair, who said that he heard defendant say that in a fight with plaintiff he had bitten his finger, and was d — d sorry he did not bite it off, and that on another occasion he heard defendant say, speaking of plaintiff having gone to get the finger amputated, “ he wished to God that he would have to have his hand cut off.” The testimony of defendant, in which he was corroborated by two or three witnesses, who saw the fight, was that plaintiff, with a cane, assaulted defendant, choked him, pushed him down and fell upon him, and that while plaintiff was attempting to gouge him ■ in the face, his finger was bitten. The court, no objections being made to it, admitted evidence to prove that defendant was a qurrelsome, fighting character.
Defendant offered to prove that plaintiff bore the same character, and on objection, the court refused to admit the evidence, remarking that he admitted the evidence of defendant s character because no objection was made to it, and that he would have excluded it if defendant had objected.
The instructions to the jury were as favorable to plaintiff as the law would have warranted. They were told defendant assaulted and bit plain-fcjfPg fingerj they should find for plaintiff, and give him exemplary damages, and that the amount within the amount claimed in the petition was for them to determine from all the circumstances in evidence; and further, that if they found that defendant bit plaintiff’s finger, and that it was unnecessary for him to do so in order to defend himself against the attack of plaintiff they should find for plaintiff, and assess such damages as would compensate plaintiff for expenses incurred in curing himself, for loss of time and smart money, &e.
For the defendant, the court instructed: that if plaintiff- first assaulted defendant, and the injury inflicted upon plaintiff was inflicted by defendant in defending himself against such assault, and in the necessary defense of his person, the verdict should be for defendant, unless he used greater force than was necessary in his self-defense.
The other instructions for defendant, except the third, were substantially the same as the ' first, and the third is objected to by the plaintiff, because he'says, “it is a comment upon the evidence and an argument to the jury; it selects defendant’s theory of the case to the exclusion of plaintiff’s, and on that theory instructs the jury.” It first defines, and properly, an assault, and then instructs the jury that if they believed that plaintiff raised his cane, in a threatening manner, within striking distance of defend
The instruction is faulty, and it was wholly unnecessary to give it because the ease had been fully and fairly presented to the jury in the other instructions; and such an instruction, in most of the cases which come here, would justify a reversal of the judgment, but here it could not have prejudiced the plaintiff. The evidence clearly proved him the aggressor. The instructions in his behalf were all that he could have asked, and those for the defendant required him to show, as a justification, not only that plaintiff’ was the aggressor, but that he did not use more violence than was necessary to defend himself against the plaintiff’s assault. If the evidence left any doubt that plaintiff first assailed the defendant, the judgment should be reversed for the error in giving the third instruction, but it is so manifestly a case in which plaintiff commenced the fight, and, contrary to his expectation, getting the worst of it, seeks to recover damages for the injuries he received, that a reversal of the judgment would do him no good, for on the evidence and instructions omitting the third, the jury, we are satisfied, would not and should not have hesitated to find the same verdict.
It is not every error for which a judgment will be re- • versed, and when it is palpable that the error did not materially affect the rights of the appellant, this court is not at lihei’ty to reverse the judgment. "Wag. Stat., Sec. 33, page 1067.
Amtrmed.