90 Vt. 236 | Vt. | 1916
The action is trespass for assault and battery, and the case was tried on a plea of self-defence,' — issue thereon being under the rule, treated as joined. The parties were stone cutters employed in a shed in Barre. It was the custom of the workmen to eat their dinners in a room adjacent to the main shed, at a table so situated that one end of it was against a wall, and one side was only far enough from another wall to make room for a long bench on which the men sat. The evidence was sharply conflicting, but there was testimony tending to show the following facts. The trouble here involved took place at the noon hour while the men were eating at this table. Some controversy arose between these parties and a bet was proposed, but not carried out. During the dispute which had become
Subject to the plaintiff’s exception, the defendant was allowed to give evidence of the plaintiff’s previous reputation as a fighting man, together with proof that this reputation was then known to him, the defendant. This line of evidence was allowed to range over a rather extended period, but remoteness is usually a question for the trial court to decide, Smith v. C. V. Ry. Co., 80 Vt. 208, 67 Atl. 535, and we see no reason for treat
George Ladue was a witness for the plaintiff. In cross-examination he was asked if prior to this occasion he had heard the plaintiff abuse the defendant. The plaintiff objected on the ground that what may have occurred before the time in question was immaterial. Under exception, the witness was allowed to answer, and said that he had heard the plaintiff abuse the defendant, but that he did not think he meant it. Counsel for the defendant asked to have the last clause of this answer stricken out, but to this the plaintiff objected. Thereupon, defendant’s counsel asked to have the whole answer stricken out, and to this, also, the plaintiff objected; and the answer was allowed to stand as given. The defendant now insists that the plaintiff’s attitude toward his requests amounted to a waiver of his exception. But we take no time with this question, for as we have just seen, the evidence was material and properly received as characterizing the attack upon the defendant and as indicating to him what his own action should be.
It appeared that the defendant was prosecuted for a breach of the peace on account of what took place on the occasion in question, and that he pleaded guilty to the charge. Subject to the plaintiff’s exception, he was allowed to explain that he entered this plea to save money, acting under the advice of the chief of police, who told him that a plea of guilty would be the
The plaintiff offered to show that the defendant was a quarrelsome man, and excepted to the exclusion of evidence to this effect. The ruling was correct. In these cases the defendant’s character or reputation in this respect is not in issue, and evidence thereof is not admissible, even in his own favor. Wright v. McKee, 37 Vt. 161; Coruth v. Jones, 77 Vt. 441, 60 Atl. 814.
There was a conflict in the evidence as to the relative weight of these parties, the defendant claiming that the plaintiff was a much heavier man than he. In argument counsel for the plaintiff, in speaking of his client and on this branch of the case, said: "And now we will offer that you take him over to the scales and have him weighed,- — now, today; and we challenge them to a proposition of weight by the scale.” To this the plaintiff asked for and was granted an exception. It is impossible to justify this or excuse the error in allowing it to stand. The evidence was closed; the plaintiff was not in a position to accept the challenge, had he so desired, — at least not without the consent of the court, and it is not likely that the court would halt the trial to allow this to be done. To make this challenge
The court charged the jury that in deciding whether the defendant reasonably apprehended danger from the plaintiff they might take into account, the size'of the two men, and the comparative ability of one to use force upon the other. To this instruction the plaintiff excepted, claiming that the court should also call attention to the fact that the defendant had the advantage of being up on the table, some three feet higher than the plaintiff. The court declined to charge further on this subject and the plaintiff excepted. It was not error to omit to modify the instruction. The reference to the ability of one, as compared with the other, to resort to force was doubtless intended to call attention to the very fact referred to by the plaintiff, and was well calculated to do so. Further reference thereto was unnecessary.
At the close of the charge, the plaintiff requested the court to instruct the jury that if they found the defendant had wilfully and knowingly testified falsely as to any material fact, they had a right to take it against him. This request was refused and the plaintiff excepted. The request was out of time and so it was not error to ignore it. Moreover, no charge of this character, though seasonably requested, was called for unless the evidence was such as to make it proper. The transcript is referred to on this exception, but it is not furnished, so error does not appear.
The other exceptions saved are not briefed.
Beversed and remanded.