Byers v. Horner

Alvey, J., delivered the opinion of the Court. This is an action of trespass for an assault and battery. The defendant pleaded three pleas : 1st. That he did not commit the wrong' alleged ; and 2nd and 3rd.

That the assault and battery complained of were committed in defence of his daughters. As to the second and third pleas, all questions raised thereon may be laid out of the case, as the Court below, in granting the third and fourth prayers of the plaintiff, instructed the jury that there was no sufficient evidence before them to maintain either of said pleas, and as the present appeal is taken hy the plaintiff, the question as to the propriety of granting those prayers is not presented here. Hence the fifth and sixth prayers of the plaintiff, in relation to the evidence that should not be considered under the second and third pleas, became immaterial, and were, therefore, properly rejected. All other questions, so far as the pleadings may be involved, must be considered as raised under the plea of not guilty of the wrong alleged.

The plaintiff gave evidence of the trespass complained of, and the circumstances under which it was committed hy the defendantand then proposed to ask the witness (his wife) “if the defendant had not, in the years 1873, and 1874, committed several assaults upon the plaintiff, or threatened plaintiff with assaults.” This question being objected to by the defendant, the plaintiff’s counsel stated that the object of the proof was to show hostile feelings on the part of the defendant to the plaintiff at the time of the trespass, which occurred on the 30th of June, 1875. The Court sustained the defendant’s .objection, and that ruling is the subject of the plaintiff-’s first exception. ³¹ We think the ruling of the Court was correct. The animus of the defendant at the time of the trespass was certainly material; but the proof sought to be elicited was too remote to be reliable as evidence of the condition of defendant’s mind at the time of the trespass committed. Any acts or declarations, indicative of the existence of malice or ill-will on the part of the defendant towards the plaintiff at the time of the wrong done, and which may have prompted the act complained of, may be given in evidence to characterize the injury, and to aggravate the damages.

But such proof of malice or ill-will must so nearly approximate the trespass as fairly to show the condition of the party’s mind, and his real intention, at the time of the act done. Shafer vs. Smith, 7 H. & J., 67 ; 2 Greenl. Ev., sac. 89. Here a year or two intervened between the acts or declarations proposed to be given in evidence and the trespass complained of, and, consequently, such acts and declarations, unless followed up by more recent and closely approximating evidence of malice, would furnish evidence too uncertain and inconclusive to be allowed to go to the jury for the purpose of enhancing the damages.

We also approve of the ruling of the Court below as stated in the plaintiff’s second exception. The proof proffered by the defendant was clearly admissible, under general issue ; and it did not require that the defendant should avow in advance, upon demand of the plaintiff, the special purposes for which the proof was offered. The rule is well settled, that the defendant, in mitigation of damages, may give in evidence, under the general issue, a provocation by the plaintiff, provided it was so recent and immediate as to induce a presumption that the violence was committed under the immediate influence of the passion thus wrongfully excited by the plaintiff. 2 Greenl. Ev., sec. 93 ; Gaither vs. Blowers, 11 Md., 536 .

And for the same purpose, that is to say, to mitigate the damages, the defendant may, under the general issue, rely on any ³² part, of the res gestee, though, if pleaded, it would have amounted to a justification; and this “ notwithstanding the general rule, that, whatever is to be shown in justification must be specially pleaded; for every thing which passed at the time is part of the transaction on which the plaintiff’s action is founded, and therefore he could not be surprised by the evidence.” 2 Greenl. Ev., sec. 93; Bull., M. P., 17. Where proof is offered generally, the party offering it is not required to declare the purposes specially for which it is offered; and it would be error to reject it if admissible for any purpose under the pleadings ; but if it be offered for a special purpose only, and it be inadmissible for that purpose, it will be rejected, even though admissible for another purpose. But where evidence is offered for several purposes, as it was in this case, and it is admissible for any one of them, a general objection will not be sustained ;— such an offer being regarded as a general offer, and therefore good.

In such case, if it be apprehended that the jury may be mislead by