Seymour v. Bailey

Jackson,C.J.

1. In an action of trespass for an assault and batter}', upon a proper plea of justification being filed, the defendant would be entitled to open and conclude the case; but where the declaration alleged that the defendant, with an axe helve and with his fist, gave and struck petitioner a great many'violent blows on and about divers parts • of his body and particularly his head, and that, he shook, pulled and knocked the plaintiff down upon the ground, and there struck him a great many other strokes and blows, by which he was greatly hurt, etc.; it was not a sufficient plea of justification to allego that the plaintiff made an assault upon the de fendant, and would have bea'ten and ill-treated him if he had not immediately defended himself against the plaintiff, and therefore he did a little beat, ill-treat and wound the plaintiff necessarily and unavoidably, and the plaintiff, by his assault, brought it upon himself; nor was it sufficient, by amendment, to admit that the defendant struck the plaintiff one blow with an axe-helve, which he was authorized to do by reason of an attack made on him by the plaintiff, who had a stick, anti -was accompanied by others, and who had struck him once and was end’es-voring to strike him again. Such pleas admitted only a part of the facts afííigeá in the declaretion, and left the burden of proving the rest upon the jffa-.intiff under the plea of the general issue. 1 Chitty Pl., 500-501; 3 Id., 1067; 2 Gr. Ev., 95; 69 Ga, 251; 72 Id., 217; Phelps vs. Thurman, Feb. Term, 1885; Code, §3051.

S. P. Thurmond, by J. H. Lumpkin; E. T. Brown ; D. W. Meadow, for plaintiff in error. Barrow & Thomas; John J. Strickland, for defendant.

2. Where a plea of justification was held to be insufficient, and counsel for defendant proposed to amend it in any way the court would indicate, to make it a good plea, whereupon the judge said that he did riot see how a plea of justification could be made under the facts, and that none could be filed, this was not a ruling on which a reversal could be had. It is not the duty of the court to instruct counsel as to what a plea should contain.

3. In a civil case the plaintiff is not bound to prove his case beyond a reasonable doubt.

Judgment affirmed.