Handy v. Johnson

Le Grand, C. J., delivered (he opinion of this court. This is an action of trespass for an assault and battery. The plaintiff, to sustain his case, proved by a competent witness, that sometime in December 1850, the appellants came to his dwelling house; that witness being in a neighboring shop, heard a tremendous to-do in the dwelling and angiy talk; that Handy, when witness entered the house, was standing over the bed in which the plaintiff, Johnson, was lying sick, and shaking his fist right into the face of the plaintiff and saying to him, if he did not make a compromise for the timber that one Harvey had cut, he would sue him before Saturday night; that after some conversation with witness Handy took a seat, from which he immediately jumped up and went to the bedside again, shook his fist in plaintiff’s face and repeated the same language he had used before. That when they left the house witness followed and asked the defendant, Handy, if he was not ashamed to treat the old man in that way, to which he replied no, d — d if he wasyand, having a stick in his hand, ⁴⁶³ told witness if he would go into the road he would wale him well.

The witness further proved that Mr. Handy’s voice and manner was very loud and angry all the time after witness went in, and that when Handy went the last time to the plaintiff the latter fainted. These are the principal facts in the case, and are sufficient to present with distinctness the questions arising under the pleadings and prayers. The first count in the declaration charges a joint assault and battery against the appellants, and the second a joint trespass in breaking and entering the plaintiff’s dwelling. We hold that the declarations or acts accompanying or immediately following the commission of the act complained of, are competent and proper evidence to explain such act.

The rule applicable to the res gestee does not require the circumstance proposed to be given in evidence should have occurred at the precise time when the principal fact happened; if it arose either at the time or so soon thereafter as to constitute a part of the transaction, then it serves to give color and definiteness to it. In this view we hold the court rightfully admitted the testimony of the witness, Johnson, as to the declarations of Handy immediately after he had left the house of the plaintiff. The 1st, 6th, 7th, 8th and 18th prayers relate to the assault charged on Tull and his participation with Hand}', and ask the jury to find for him on the issue formed on the first count. These prayers refer to the jury the following questions: the 1st, what is “co-operation” between parties charged as co-trespassers? the 6th, what is “aiding, encouraging and countenancing?” the 7th, what is “participation?” the Sth, what is “aiding and abetting?” and the ISih, what is “co-operation?” We think the court properly rejected these prayers, because, if for no other reason, they were calculated to mislead the jury by directing their attention exclusively to his conduct while in the house of the plaintiff, and withdrawing their minds entirely from the proof of what had previously taken place tending to show his knowledge of the intention with which Handy went to the house.

That intention is disclosed in the conversation between the witness, Dize, and Handy, when the latter said ⁴⁶⁴ he was going lo the plaintiff’s room, and disclosed in very improper language how he designed to treat him. Tull was present at this conversation, and at the request of Handy consented to accompany him. Prayers Nos. 10 and 16 relate to Tull, and require the jury to decide the legal question of what is an assault, and therefore erroneous. The 3rd, 20ih, 22nd, 5th, 11th, 17th and 25th prayers relate to the second count, and are based upon the assumption that there is evidence of a license on which the defendants had a right to insist that they should have been granted.

We cannot think so. We see no proof whatever of a license in fact; and conceding, (for we do not-Mecide the question,) that under the pleas of license in their present form evidence of a liceape' in law might be given, there is none which can authorize this court to reverse the decision below refusing these instructions. If it. were admitted that A man may, in a peaceable and quiet manner, lawfully visit the house of another fo'rfhe purpose of arranging a matter of business, still it certainly cannot be said that the law will license a party to enter a mail’s house for such a purpose under the circumstances disclosed in the testiinony. It appears that a few days before the visit alluded to, in a conversation relative to the timber alleged to have been cut by the agent or hands of the plaintiff upon the premises belonging to the mother of the defendant, Handy said he was going to the plaintiff’s room, and spoke of him in the most abusive language and threatened to maltreat him.

He asked Tull, the other defendant, to go with him, which he consented to do. When these parties made their intended visitjto the plaintiff, his son not