Beckwith v. Mollohan

Maxwell, J. This was an action brought by Charles Mollohan, the defendant here, in the circuit court of "Wood county, against Jonathan B. Beckwith to recover damages for a personal wrong. The writ is in trespass on the case and was returnable to August rules, 1865. On the return day of the process, the same having been returned executed, the said Mollohan filed in the clerk’s office of said court his declaration against the said Beckwith, and took a common order which was confirmed at the next rules. At the September term of the court following, the ease was on the docket when the defendant below appeared and demurred to the declaration and to each count thereof, in which demurrer the plaintiff joined. The court on full argument and consideration overruled the demurrer to the declaration and to each count thereof. It is claimed by the plaintiff in error that the court erred in overruling the demurrer to the declaration; that the declaration ivas imperfect and uncertain; that it contained counts applicable under our statute either to trespass or trespass on the case; that the writ was in ease but the declaration fails to show whether it was in case or trespass. Uo variance in the writ from the declaration can be taken advantage of in any other way than by plea in abatement. Code of Virginia, 1860, page 711, section 18. It is no cause of demurrer since the statute, Code of Virginia, 1860, chapter 148, page 635, section 7, that the declaration contained counts applicable either to trespass or trespass on the case. Parsons vs. Harper, 16 Gratt., 64; Hood vs. Maxwell, 1 West Virginia Reports, 219. It was admitted in argument here that the first count is good in substance, but insisted upon that the second count is imperfect and uncertain. It is claimed that the second count does not contain and charge within ■ itself a good cause of action without the references therein contained to the first count, by which it is claimed it cannot be aided. It has always been the practice for a subsequent count to refer to a preceding one for time, place, &c., which is done in the second count in this case. There are two other references in the second count to the first, contained in the phrase “ as afore [482] said” twice used. If the phrase “ as aforesaid” in both instances where it is used, be treated as surplusage and disregarded, then the count would he in substance good and would be substantially the same as the form in 2nd Ohitty’s Pleading, page 857. But if the second count is not good without the aid of the references to the first by the phrase “as aforesaid” twice used it is proper to refer to the first and make the second count good in that way, the first count being a good one. 20 Johnson’s Reports, 344; 6 Wendall, 409. I think the demurrer was properly overruled. The record contains four bills of exceptions to rulings of the court on the trial; bios. 1, 2 and 4 taken at the instance of the defendant below, and ETo. 3 taken at the instance of the plaintiff below. The questions raised in bills ETo. 2 and ETo. 3 have reference to the belligerent rights of the defendant set up in his defense, and are not insisted on here because they have been decided by this court in other cases. The first bill of exceptions is as follows: “Be it remembered, that upon the trial of this cause the plaintiff gave evidence that in July, 1861, he had been arrested in the county of Kanawha by armed men claiming to act under orders of officers connected with the rebel army, then in the valley of the Kanawha river, under the command of the rebel General II. A. Wise; that after he had been so arrested by said armed men he was placed in the jail of Kanawha county and there kept for some days; that about the 23rd day of July, 1861, he, with other prisoners arrested and confined by said rebel officers and men, was removed from said jail by a squad of armed men under the command of an officer who was called a sergeant, and was placed upon a steamboat and carried up the Kanawha river to a place called Piatt’s Landing; that the defendant*acted as one of the armed guard who attended them on the said boat; that when about to be landed at said place for the purpose of being removed further by land, the said sergeant in command of the prisoners tied their arms together with ropes preparatory to marching them by land. After the witness examined on this subject had made the statement, he was proceeding to [483] state what the said officer who tied the prisoners, stated at the time of doing so his reasons for doing so. The attorney for the plaintiff objected to his stating what the officer said at the time of tying the prisoners, and the counsel for the defendant insisted that the witness should be permitted to state what said officer so stated at the time as his reasons for binding them. And the matter having been referred to the court, the court refused to permit the witness to state what was said by said officer at the time. And to the opinion of the court refusing to permit the witness so to state, the defendant by his attorney excepts and prays that his exception be signed, sealed and made a part of the record, which is done accordingly.” It is insisted here that the court erred in refusing to allow the witness to state the reasons assigned for doing so by the officer who tied the defendant Mollohan, under the circumstances disclosed in this bill of exceptions. It is claimed that any declaration made at the time of the tying of the defendant in relation to the tying by any person engaged in it, is a part of the res gestee and should be allowed to go in evidence to the jury along with the fact of tying. It is insisted here by the defendant in error, who was the plaintiff below, that it was not proper for the defendant below to insist on the witness making the statement at the time and in the manner it was done, but that it should have been done on cross-examination. If the objection had been put on this ground in the court below, there might, though I doubt it, have been something in it, but it is too late now to do so for the first time, I think the only question raised in the bill of exceptions, is, was the defendant entitled to the benefit of the declarations of the officer made at the time he tied the prisoner. It is distinctly charged in the declaration that “the defendant did by force and great violence tie the plaintiff’s hands behind him with a tarred rope.” The proof on the trial as shown by this bill of exceptions was that an officer in command of a squad of men, of which squad the defendant was one, tied the prisoner’s arms. The act of the officer in tying the plaintiff is given in evidence [484] against the defendant. Was not the defendant entitled to the benefit of any declarations the officer made at the time of tying the plaintiff in relation to the tying, to go in evidence to the jury as part of the res gestes, for what they might he worth. It is a well settled rule that declarations as parts of res gestae, made at the time of the transaction, are regarded as verbal acts indicating a present purpose and intention, and are, therefore, admitted in proof like any other material fact to be weighed by the jury for what they are worth. 1 Greenleaf’s Ev., section 108; 5 T. R., 512; 2 Bing. R., 99; 3 Kelly’s R., 513; 14 S. & R., 275. I think it clear that the defendant was entitled to have the evidence of the declarations of the officer, under the circumstances, go to the jury to be considered for what they Avere Arorth. The fourth bill of exceptions is to the opinion of the court in refusing a new trial asked for by the defendant, but in the view taken of the case it is not necessary to decide the questions raised by this bill, as I am of opinion the judgment, will have to be reversed, for the reasons already given, with costs to the plaintiff' in error, and the cause remanded for a new trial. The President concurred. Judgment reveRsed.