Howland v. Day , 56 Vt. 318 ( 1883 )

The opinion of the court was delivered by

Boss, J.

I. When the defendant declined the offer of the County Court to call a jury de novo in the case they waived any right to exception by reason of the evidence of the affray at South Boyalton having been received by the court under the misapprehension that that was the affray for which the plaintiff was seeking to recover damages and also any right to exception to receiving evidence of the affray on the highway as the substantive ground of recovery. The acceptance of such offer, would have afforded the defendants a trial in regard to the latter affray alone, unconnected with, and unaffected by what had already, been done in the case. The defendants contend that the rejection of such offer ought not to affect their right 'to the exceptions already taken in the proceedings thus far had in the case, because that the jurors who would have been called, on the new panel, very likely might have already heard, the objectionable testimony in regard to the affray at South Boyalton. This contention begs the question, at issue. The commencement of 'the trial de novo, and empanelling of a new jury, implied the rejection from such panel of all jurors who had heard the objectionable testimony. The only remaining question on this branch of the case, is, did the court confine the consideration of the jury to such of the testimony already received as had a legetimate bearing upon the last affray between the parties, and give it only its legitimate effect? The affray at South Royalton was only a few hours before the one for which recovery was had. The court confined the consideration of the jury to the threats of the parties made at South Royalton. In all actions where the intention and purpose, with which an act is committed, form material elements of the right of recovery, whether of exemplary damages, or otherwise, threats of the parties engaged in the act, when made within reasonable proximity of the time to the commission of the act, may be shown as tending to establish the state of mind, or animus, w'ith which the act was done and when the threat is to perform the act complained of, it may also be used as tending to show that the person threatening Avas the person who committed the threatened act. Bartram v. Stone, 31 Conn. 159; Devine v. Rand, 38 Vt. 621. The charge of the court did not permit the jury to use the evidence of what took place at South Royal-ton, except for these purposes. There was no error in this portion of the charge.

II. The defendant Day contends that the court erred in its charge in regard to his right to use force in self-defence. The court first told the jury that a person assaulted had the right to defend himself, and to make the defence effective; but also told them that he must not use force in self-defence “ if he can otherwise protect himself.” “ If he has other means of avoiding the assault that are available, and that appear to him at the time as sufficient, and are in fact available, then he cannot use force for that purpose.” Also in substance, that if he IcneAv and had reason to believe that the plaintiff would not leave his wagon, and that by keeping aAAray from it he could aAroid plaintiff’s assault it was his duty to keep away, if he could do so without unnecessary trouble. The court left him to judge of the necessity of the use of force to defend himself under the circumstances. The law abhors the use of force either for attack or defence, and never permits its use unnecessarily. The charge of the court was a just and proper application of this universal principle of law to the facts and circumstances of the case.

III. The defendants insist that the court erred in the charge in regard to epithets. The epithets were in the case without objection. In the argument the counsel had without objection given their views in regard to the meaning of the epithets used. It is stated that the parties understood what the epithets meant. The court told the jury to let the remarks of counsel on this subject pass unheeded as wholly immaterial, except as showing that the parties understood what each meant by the epithets used by the other when they met. Manifestly in this there was nothing of which the defendants could complain. On the trial it had been conceded that the parties knew what the respective opprobrious remarks meant; and the court had refused to allow an explanation of them for that reason. This was all the force it allowed to be given the remarks of counsel on this subject.

The remarks having been allowed without exception, and it not appearing but that the counsel on both sides indulged in such remarks; it would not have been error if the court had remained silent on the subject, neither was there error in telling the jury that such remarks were immaterial except so far as based upon the admitted fact that parties knew what each other meant by the epithets used.

IY. The defendant Day complains of the charge in reference to the use to be made of Dean’s admissions out of court. The court told the jury: “ Where a party makes a statement out of court, that is evidence against Aim with reference to the truth of the statement that he makes ;” and that it could also be used to determine the weight to be given to his testimony when that varied or contradicted his statement out of court. The charge ip this respect was a proper and correct statement of the law. State v. Fuller et al., 39 Vt. 74.

As the statement of Dean out of court had some relation to an act of Day, it might have been well for the court to have told the jury that it could not be weighed against Day, nor does it appear but the court did so instruct the jury. It was not bound to do so without request, when the 'charge confined the use of such statements to the party making them. No error is apparent in the exceptions on this subject.

The judgment is affirmed.