Peck v. Goss ( 1871 )

Nicholson, C. J.,

delivered tbe opinion of tbe court.

Plaintiff brought trespass against defendants for taking and carrying away a gray horse worth $700. Tbe defendants put in pleas separately — each one pleading “not guilty.”

The proof of plaintiff is full and conclusive as to all of the defendants except James T. Goss. As to him the evidence is insufficient to have authorized a verdict.

The only evidence made by the defendants, who obtained a verdict, tends to show that they may have been acting under the orders of a military commander. This evidence was objected to as irrelevant under the issue; but the objection was overruled and the evidence admitted. If this evidence had been brought out in the testimony of the plaintiff it might have been relied on by the defendant under the plea of not guilty: Smith v. Brazelton, 1 Heis., 52. But no such evidence having been made by the plaintiff, the defendant could not rely upon such a defense, except under a special plea of justification. Having put in no such pleas, the evidence was improperly admitted. As this evidence was material, its admission was an error for which the judgment must be reversed, and a new trial awarded as to all the defendants except James T. Goss.