Krall v. Lull , 49 Wis. 403 ( 1880 )

OetoN, J.

The assault and battery in this case consisted of the use of a loaded pistol, which caused the injury complained of; and there was no evidence or pretense that there was any assault aside from the discharge of the pistol. The instructions given to the jury, and those refused, must be considered solely in their application to the case proved.

The instructions given and refused, and the objections to those given, and the reasons urged in support of those refused, when brought together and concentrated, and considered only in their application to the case proved, have but one point. The complaint charges the act to have been done intentionally, and that, of course, must have appeared from the evidence to entitle the plaintiff to recover.

The instructions ashed, when thus brought to the jooint, were as follows: “ In this case the plaintiff cannot recover unless the jury find that the shooting was willful and intentional.'1'1 They were refused,, except as given in the general charge. The only question in» the case upon which error is assigned is, Was this instruction substantially given in the general charge? The jury were instructed as follows: “ If the defendant did not assault the plaintiff, but, having his pistol in his hand for a lawful purpose, and by the negligent or careless handling of the pifetol, or by accident, the pistol was discharged and the plaintiff received an injury, he cannot recover damages for that injury in this action.” And, again: “If the plaintiff assaulted the defendant, the defendant having a pistol in his hands, and the discharge of the pistol was caused by the pushing and jostling and assault of the plaintiff, and it was discharged without design on the part of the defendant, caused by the act of the plaintiff, then the defendant would not be liable for damages for injury consequent upon the discharge of the pistol.” "

This is really all of the charge of the court, except that relating to the law of self-defense, which is pertinent to the case. Keeping in view the fact that the assault and the shooting were one act, the jury are here charged that this act must have been done by design and not by accident. The instructions given, and the instructions ashed and refused, might have been much plainer and much shorter, and probably would have been plainer if shorter; yet, substantially, the instructions given and those refused touch and mingle into one at this single material point, however widely they may diverge wpon extraneous matters; and in this respect, and on this one point, they are both closely applicable- to the real point of defense. The defendant testified “ that he did not intend to fire (the pistol) — did not fire it purposely. The jar sent it off.”

By the Court. — The judgment of the circuit court is affirmed, with costs.