Stetlar v. Nellis , 42 How. Pr. 163 ( 1871 )

Jackson, J.

This motion is based upon two grounds: 1st. That a man duly summoned as a juror was discharged, by the sheriff at the private suggestion of the defendant; and, 2d. That evidence was improperly received, of provocation given by the plaintiff a long time prior to the assault which was the subject of the action.

The first ground is not sustained by the evidence. The sheriff testifies that Conklin, the person referred to, was not summoned as a juror, and that no request or suggestion was made by the defendant, or his attorney, that he should be discharged or that he should not be summoned; and the defendant and his attorney both make affidavit that they made no such request or suggestion. This evidence overcomes that presented by the plaintiff in support of the allegation.

. The facts in regard to the other ground of the motion are these: The defendant testified, upon the inquisition, that at the time of the assault, and before he struck the plaintiff, the plaintiff charged him with stealing, and used other insulting and abusive language. This was denied by the plaintiff, and thus the evidence in relation to such alleged provocation was conflicting, and it became a question for the jury to determine whether or not such provocation was given by the plaintiff.

While it is well settled by the case of Lee v. Woolsey, (19 John. 319,) and several other cases, that evidence of acts done, or words spoken by the plaintiff long before the cause of action arose, is inadmissible for the purpose of showing provocation, and mitigating the damages; yet where such acts or words are a portion of a series of provocations frequently repeated, and continued down to the time of the assault, they may be proven. (Richardson v. Northrup, 56 Barb. 109.) As was said by Justice Foster, in this case: “Each successive repetition of the provocation must necessarily become more annoying and exciting, and although there may be no motive, or spirit of revenge, on the part of the defendant; the excitement at each repetition of the provocation becomes more intense and unbearable, and, in my judgment, presents a much stronger ease of mitigation than when the actionable words were uttered (the action was slander) upon the first provocation which he receives.”

[Fulton Special Term, November 27, 1871.

The defendant had a right to assume, for all the purposes of the trial, that the jury would find in his favor upon the question whether the alleged provocation was given at the time of the assault, and, upon such assumption, he also had the right, by the authority of the case just cited, to show that such provocation was one of a continued series, commencing a long time before. The evidence objected to was of the speaking and uttering by the plaintiff, at various times before the assault, of the same slanderous and insulting words, in reference to the defendant, and within his hearing, which were alleged to have been spoken at the time the assault was committed.

Such evidence was properly received.

Motion denied, with costs.

Jackson, Justice.]