Keep v. Quallman

Lyon, J. It was not unlawful for the defendant to address the plaintiff as he did when thej^ met on the highway, and if the plaintiff by his former threats of personal violence (if he made any), and by putting his hand in his pocket as testified to by the defendant (if he did so), gave the defendant reason to believe that lie was about to draw a revolver or other weapon upon him, it was an assault, and the defendant had the right to act upon appearances and at once repel or prevent the supposed contemplated attack. See 1 "Whart. Grim. Law, §§ 603-606. Ye think the testimony sufficient to send to the jury the question whether the acts of the plaintiff were sufficient to give the.defendant reason to believe that he was in imminent danger of being attacked by the plaintiff when he knocked the latter down. That is to say, we think the testimony tends to prove a state of facts from which the jury might properly find the defendant was legally justified in striking the blows to prevent the plaintiff from attacking him. Hence the instruction that the defendant was absolutely liable in the action ■was erroneous. The instruction should have been that if the defendant had no reasonable grounds to fear an immediate attack by the plaintiff, or, having such grounds, if he used more force than was necessary to prevent such attack, the plaintiff could recover; otherwise not.' "Ye are also inclined to think that on the authority of State v. Nett, 50 Wis. 524, proof of the quarrelsome and violent disposition of the plaintiff should have been received, [454] as elements in the correct solution of the questions above suggested. By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.