Benjamin v. McLellan

Crosby, J. There was evidence that, immediately preceding the alleged assault and while the defendant was in front of the plaintiff’s house, the plaintiff’s wife was on the piazza and was talking "very loud” to the defendant; that at that time the plaintiff was approaching his house in an automobile and was about one hundred feet away; that the voice of his wife could be heard that distance away. The defendant admitted the assault but contended and offered evidence to show that he acted in self-defence. In direct examination he was asked: “At the time you were walking down the sidewalk in front of the Benjamin house in the direction of your own home, and as you testified, Mrs. Benjamin was walking along the piazza, when the machine was within one hundred feet of the Benjamin piazza, what did Mrs. Benjamin say — 145 — to you?” The question was objected to by the plaintiff and the presiding judge said: “You may ask the witness what was said by her within the hearing of Mr. Benjamin, assuming that he was within hearing when he was one hundred feet away. The witness says it could be heard.” The defendant was then asked: “What was said by Mrs. Benjamin to you when her husband was within one hundred feet?” And he answered: “She said that I was a pauper, did not own a dollar of my property and that we had a half-starved daughter.” This evidence was admitted subject to the plaintiff’s exception. The judge at the time of the admission of this testimony stated to the jury in substance that the testimony was of no significance unless they found that the statement of Mrs. Benjamin was made in the hearing of her husband, and that it was of no importance unless he heard it. If the plaintiff heard his wife make the statement to the defendant, as testified to by the latter, it was admissible: as the plaintiff and his wife had testified to the conversation which took place with the defendant, the defendant was entitled to show the whole of that conversation including what was said immediately preceding the assault. It was also admissible upon the question whether the defendant was making,, a disturbance, as Mrs. Benjamin testified, or whether, as he testified, he was walking along the street and that she addressed him in a loud tone, using the language above referred to. It was admissible as part of the res gestae. Walker v. Flynn, 130 Mass. 151. And if heard by the plaintiff, it was also admissible on another ground: in an action for an assault and battery, evidence may always be introduced to show provocation happening at the time of the assault, in mitigation of damages. Child v. Homer, 13 Pick. 503, 507. Mowry v. Smith, 9 Allen, 67. Tyson v. Booth, 100 Mass. 258. The plaintiff contends that evidence of provocation can be shown by acts or words of the plaintiff only, and that the remark of his wife to the defendant in his hearing could not be admitted for that purpose. That contention is not tenable; such a remark would be quite as likely to excite the feelings and indignation of the defendant as the same words spoken to him by the plaintiff. Walker v. Flynn, supra. The plaintiff also excepted to “so much of the charge as dealt with the question as to whether or not the rights of the parties — 146 — were affected by the fact, if it was a fact, that the alleged assault occurred on the plaintiff’s premises.” The judge in his charge did not undertake to state precisely the evidence or all of it; he expressly told the jury that he was attempting to state the substance of the testimony on both sides. This exception cannot be sustained; the rights of the parties were not affected by the question whether the alleged assault occurred on the plaintiff’s premises or on the street; the defendant admitted the assault, and the only issue was whether he was justified in striking the plaintiff to protect himself from bodily harm. The instructions given were full and correct, and presented fairly to the jury the issue to be decided. Exceptions overruled.