Edwards v. Leavitt

The opinion of the court was delivered by Peck, J. In view of the nature of the action and the various issues involved in the trial of the case before the jury, and the very general scope of the evidence in the case without objection, we cannot say that it was error to admit the evidence of the commencement and pendency of the suits in favor of this defendant against this plaintiff, growing out of the controversy as to the possession of the premises. This evidence appears to be of much the same character and tendency as other evidence in the case introduced without objection. In relation to the charge of the court on the subject of the right of self defence, after having charged the jury agreeably to the defendant’s requests on that subject, telling them, according to such requests, what circumstances they were to take into consideration in determining the amount of force defendant had a right to use, and adding that, if plaintiff committed the first assault upon the defendant, the defendant was not bound to wait till the blow reached and disabled him, before he defended himself, and disabled the plaintiff, it was not error to tell the jury that they might consider the nearness of help, in addition to the circumstances named, in determining the extent and amount of force the defendant would have a right to use before he would be guilty of using an excess of forte. The amount and extent of force which the defendant would have a right to use, would depend in some measure on the perilous condition he had reason to suppose he was in from apprehended violence from the plaintiff, and what force he had reason to suppose necessary to protect himself. The fact of the presence or proximity of the defendant’s two hired men, known to both parties, was proper for the jury to consider as bearing on the question. The defendant, so situated, would naturally be less apprehensive of grievous bodily injury, than if in some secluded place, beyond the reach of assistance. It is insisted that exemplary damages cannot be recovered in, [135] a civil action ; and if in any civil action, not in this case, for the reason that at the time of trial, there was a criminal prosecution pending against the defendant for the same assault, and that he ought not to be punished twice for the same transaction. It has long been settled in this state, and correctly settled upon sound reasons, that in actions of this character the jury may give exemplary damages. It is not an innovation of the common law, it is .the common law. It is no answer to the application of the principle in this case, that a criminal prosecution is pending for the same assault. It is said the defendant should not be punished twice. But he has not been punished once yet, and may never be, beyond actual damages, if exemplary damages cannot be recovered in this action, as the criminal case may never be tried. But even if it had been tried, a conviction, sentence, and Judgment, in the state prosecution, would be no bar to a recovery of exemplary damages in this action. These are all the questions raised, or points made, by the counsel who opened the argument in behalf of the excepting party, either in his brief or in argument. Some new points were started by the counsel who closed the argument on the same side, but we have not considered them, as it is the practice of the court to require counsel to make the points in the opening, on which they rely, so that the opposing counsel can have an opportunity to reply. Judgment of the county court affirmed.