Wilkinson v. Allen , 136 Va. 607 ( 1923 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The questions presented by the assignments of error will be disposed of in their order as stated below.

[1] 1. Did the action of the court, in allowing the defendant to be interrogated on cross-examination concerning specific personal difficulties of his, with parties other than the plaintiff, and in admitting in evidence the portions of the testimony of the defendant relating thereto, constitute harmful error?

In view of the testimony of the defendant himself, stating the threat made by him to the plaintiff after he reached the office of and immediately preceding his encounter with the plaintiff, namely, “George, I demand of you an apology, I demand a public apology, or I am .going to beat you,” and stating also that he “slapped him two or three times * * * slapped him with my (his) hand * *”—and that there is no assignment of error on the ground that the verdict of the jury was excessive—the question must be answered in the negative.

[2-5] The case was tried upon the assumption that there was some evidence before the jury tending to support the theory that the defendant was entitled to rely upon his claim that he acted in self-defense, as appears from instruction “I,” given at the request of the defendant./ But one who, without legal excuse, brings on a combat) cannot rely upon the claim of self-defense, in any case of a personal encounter, in justification of a blow struck by him during the encounter. Sims’ Case, 134 Va. 736, 115 S. E. 382, and authorities there cited, 115 S. E. 832. According to the defendant’s own testimony he brought on the combat, and was without legal excuse therefor, as he had no legal right to make the threat which he states he made, which brought on the combat. And, granting that the testimony of the defendant was true, in which he stated that he had formed no intention of assaulting the plaintiff prior to going to his office, he formed this intention, according to his own testimony, after reaching the plaintiff’s office, and expressed it to the plaintiff immediately preceding the combat, and the jury, were plainly warranted by the evidence in finding that this threat, which the defendant had no legal right whatever to make, brought on the combat. Instruction “I” was •therefore erroneous because without evidence to support it. However, being asked for by the defendant and being more favorable to him than he was entitled to ask, he cannot complain of it.

Further: Considering the ease as tried under the law as stated in this instruction, it appears from the defendant’s own testimony that in slapping the plaintiff he exceeded his right of self-defense. By his own statement he accomplished the purpose of self-defense by simply pushing the plaintiff from the door back inside the room. And the jury were amply warranted by other testimony in the record, showing the comparative sizes and physical prowess of the parties (which we need not refer to more in detail), that there was no necessity or apparent necessity whatever for the slapping of the plaintiff by the defendant in sélf-defense. Hence, if we consider that the court erred in allowing the interrogatories and in admitting the portions of testimony as to other difficulties had by the defendant with persons other than with the plaintiff, no other verdict in accordance with the evidence could have been returned by the jury than one for the plaintiff for some amount of damages, if but nominal damages; and, since there is no assignment of error challenging the verdict as excessive in amount, we must hold that the action of the court in question did not, in any aspect of it, constitute harmful error.

2. Did the court err in giving the instructions which were given at the request of the plaintiff, and in refusing instructions Nos. 1, 2, 3, 4 and 5 asked for by the defendant?

The question must be answered in the negative.

The assignments of error complain only of instructions B and C given at the instance of the plaintiff.

[6, 7] The grounds of error assigned, as to instruction's, are 1st, that it postulates, as a matter of law, that the defendant did commit an assault upon the plaintiff, and 2nd, that it disregards the defendant’s theory that his action in self-defense constituted justification; and, as to instruction C, that it did not confine the jury to basing their holdings thereunder upon the evidence, but postulated its directions to the jury as matters of law, authorizing them to find thereunder, regardless of the evidence. It is manifest, from a reading of the instructions copied above, that there is no 'merit in any of these assignments of error.

[8-10] The grounds of error assigned as to the refusal of instructions Nos. 1, 2, 3, 4 and 5, requested by the defendant, are 1st, that they correctly embody the defendant’s theory of justifiable self-defense, and 2nd, that since seven instructions were given for the plaintiff “all of' which dealt with recovery and measures of damages, and only one of which refers even incidentally to the chief and only ground of defense,” the refusal of the court’to give instructions Nos. 1, 2, 3, 4 and 6 “was to give the jury a distorted, one-sided and erroneous notion of the issues before them.” That “They were overwhelmed with the court’s directions about damages and ever again damages.” That “They heard only once or twice any reference to any possible justification for the physical impact which they heard the defendant admit he inflicted. The atmosphere in which they found themselves was that the defendant had been illegally shown to be a belligerent person, that the court thought the law had little to say in justification, but that the law is extraordinarily concerned about damages.” With respect to the first ground mentioned, we need only say that instruction “I,” given at the request of the defendant, as aforesaid, covered that point. With respect to the second ground stated, we will say that the instructions given are open to the objection that they needlessly repeated the reference to damages, but, in view of the fact that, as aforesaid, under the evidence, no other verdict than one for some amount of damages could have been properly found, and that there is no assignment of error challenging the amount of the verdict, we cannot even inquire whether that was harmful error; and with respect to failure of the court to repeatedly instruct the jury to the effect that the defendant was justified in striking the plaintiff on the ground of self-defense, of these instructions only No. 5 correctly limited their application to such action of the defendant as was necessary in order to repel the danger to himself as reasonably appeared to him at the time; and the defendant, under the circumstances disclosed by his own testimony, was, as aforesaid, not entitled to any instruction of justification under the claim of self-defense; and the situation, under such circumstances, was not merely that the law “had little to say in justification,” but, in truth, nothing to say at all in justification of the conduct of the defendant. But aside from that, instruction “I,” given as aforesaid at the instance of the defendant, gave the defendant, as aforesaid, the benefit of his claim of self-defense, correctly limiting the application of the law on that subject in the particular of the necessity which must have existed for the resort to action in self-defense.

[11] 3. Did the court err in refusing to set aside the verdict of the jury as contrary to the evidence?

From what has been said above as to the evidence, it is plain that there was ample evidence to support the verdict of the jury, so that the question must be answered in the negative.

Finally:

[12] 4. Should the case be dismissed on the motion of the plaintiff, for the reason that the defendant did not pay the costs of printing the record within ninety days from the notice given by the clerk?

This question also must be answered in the negative.

The process on the writ of error granted in the case was issued, as appears from the evidence before us, on January 20, 1922. The ease was then docketed and the clerk, on January 28, 1922, notified the plaintiff of the amount of the costs of printing the record in the ease. The statute governing the subject in force at that time was section 3486 of the Code of 1919, which, so far as material, was as follows:

“* * As soon as the case is docketed after the *. * * writ of error or supersedeas is allowed, the clerk of said court shall notify the appellant. * * of the amount of such costs” (the costs of printing the record), “and if the same are not paid within six months from the date of such notice the case shall be dismissed * * .” (Italics supplied.)

As also appears from the evidence before us, said costs were paid by the plaintiff on July 12, 1922, which was within the time required by said statute.

The position of the defendant is that the case should be dismissed under the said section of the Code as amended by act of Assembly approved February 17, 1922 (Acts 1922, p. 44), which went into effect ninety days after the adjournment of the legislature, which was before the costs of printing were paid, but after the case had been decided, following the granting of the writ of error, and after the clerk had notified the plaintiff as required by the statute as it stood at the time such proceedings were had. The statute as amended by the act approved February 17, 1922, contains the same phraseology as that above quoted from it, as it stood at the time of the proceedings last mentioned, except that the amended statute changed the period within which the costs of printing were required to he paid from six months to ninety days from the date of the notice from the clerk. We are of opinion that the language of the statute is such that the amended statute is prospective, and not retrospective, in its operation; that it applies only to cases in which the appeal, writ of error or supersedeas was not granted, (i. e. cases in which the petition and record had not reached the hands of the clerk of the court after the appeal, writ of error or supersedeas was allowed), and which was not docketed, and the notice by the clerk had not been given, until after it went into effect; and that it had no application to the case in judgment.

Hence the motion to dismiss must be denied.

The case must therefore be affirmed.

Affirmed.