Ater v. Ellis ( 1921 )

On Motion for Rehearing.

[9] The facts set out by us are supported by the evidence in the record and, as we conceive the matter* support the findings of the jury. There is doubtless evidence which would have authorized the jury in finding that Ellis was not in immediate or imminent danger of serious bodily injury to himself; or that there was no reasonable ground to fear' the commission of any of the named offenses on his premises at nighttime, but the jury saw proper to accept the appellee’s testimony as reflecting the appearance to him at the time and reasonable apprehension therefrom. We regarded the facts showing that appellant was on the premises at nighttime, and his movements thereon at the time, as sufficient to raise the question of reasonable apprehension.

The assignments presented by appellant challenge the evidence as á matter of law in not being sufficient to' support the jury’s findings. We do not believe we were authorized in so finding. There is some complaint by appellant as to our action in considering his brief. We may say at this time that the appellee strenuously insisted on the original hearing that we should not consider the brief as presented in this court, and we feel that we have given the appellant the benefit of a liberal ruling in the consideration of the questions discussed by us and that he should have no just ground for complaint at our action in that particular. Appellant seems to have entertained the view that we disapprove of his suit on the ground stated in his petition. We suggest that he is. under a misapprehension of our views with reference to the case, and we certainly recognize his right to appeal to the courts to ascertain whether he had an action or not, whatever may have been the occasion which brought about the unfortunate shooting.

We are of the opinion that the case was properly tried in the court below and that the judgment should be affirmed.

The motion will be overruled.