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D. R. Reese v. F. H. Clark.
SohbNCK, J.
The plaintiff objected to the issues submitted, more particularly to the first. We think these issues clearly arise upon the pleadings in this case. Without objection the court omitted a statement or review of the evidence, but did in a clear and correct manner state the contentions of the parties and “declare and explain” the law arising on the- evidence. The trial judge charged the jury as to the law of trespass and properly placed the burden of proof upon the defendant on the first issue and the jury answered in the affirmative, thereby finding that the plaintiff was a trespasser. The court upon the second issue explained the law of assault, correctly charging as to the right of the defendant of self-defense as against trespassers; and carefully explained to the jury that if the defendant by throwing the acid used more force than appeared to him reasonably necessary, or for any other purpose than protecting himself, even if the plaintiff was a trespasser, the defendant would be guilty of an assault. The jury answered this issue in the negative.
The plaintiff in this case is in practically the same position as the prosecutor occupied in S. v. Goode, 130 N. C., 651, where the Court, on page 655, said: “Whether the force used by the defendant was excessive is matter for a jury. Indeed, if this evidence is to be believed, the prosecutor was a law-breaker, and is himself in jeopardy of the judgment for his violence and his defiant disregard of the rights of the defendant.”
We think the plaintiff’s prayer for special instructions are untenable. The exceptions to the charge are largely to the statement of the defendant’s contentions and were not taken at the trial, and therefore cannot be considered here. Mfg. Co. v. Building Co., 177 N. C., 103. And aside from this we see no error in the exceptions.
The jury having answered the first and second issues in favor of the defendant, any discussion of the subsequent issues and charge relative thereto becomes unnecessary. The verdict and judgment will be upheld.
No error.