35 Ga. App. 45 | Ga. Ct. App. | 1926
(After stating the foregoing facts.) 1. As to the testimony in regard to the character of the parties the court instructed the jury as follows: “The court permitted evidence as to the character of Mr. Swinney, the plaintiff in this case, as to violence, turbulence, and peacefulness, to go before you. The court now excludes all that testimony relating to the character of Mr. Swinney for violence, and instructs you not to consider any of the testimony in arriving at your verdict. The testimony as to the character of the defendant Ivy Wright is allowed to remain for your consideration, and at the proper time in the charge the court will instruct you as to the effect of that testimony.” The plaintiff, in his motion for a new trial, objected to this instruction, because
2. The next assignment of error is to this excerpt from the charge: “If you believe from the evidence in. this case that the plaintiff, Mr. Swinney, was the aggressor, and that the defendant used such force as was necessary to repel an attack upon him by Mr. Swinney, then the plaintiff would not have a right to recover in the ease.” There was no error in this charge, for this was one of the pleaded issues in the case, and it was supported by portions of the evidence. ■
3. One exception is taken to the admission of evidence relative to the defendant’s character for peacefulness. Another is made to the following excerpt from the charge of the court: “In determining the first issue, whether the plaintiff is entitled to recover or not,—that is, whether the defendant was justified in doing whatever he did do,—you can consider all the testimony, including any testimony that has gone before you relative to the alleged good character of the defendant, . . take that into consideration, together with all the facts and circumstances as detailed from the witness stand, in determining whether the defendant was justified or not in whatever you find that he did on this occasion.” The exception to this excerpt was that it “tended to leave, and actually did, as movant insists, leave the impression with the jury that if they should find from the evidence that defendant had a gobd
Judgment reversed.