Saunders v. Gilbert

WalkeR, J., after stating the case: The testimony as to what was said in the road and in front of the plaintiff’s home was clearly competent. The res gestae includes what was said as well as what was done. The acts and the outcries of this unlawful assembly — for that is, in plain speech and in law, what it was — is held to be competent as pars rei gestae, and also as tending to show their purpose or quo- animo. Nothing is better settled than this rule of evidence. S. v. Rawls, 65 N. C., 334; S. v. Worthington, 64 N. C., 594. We find it stated in 4 Elliott on Evidence, sec. 3128, that “What is said — 471 — and done by persons during tbe time they are engaged in a riot (or unlawful assembly) constitutes the res gestae, a;id it is, of course, competent, as a rule, to prove all that is said and done” — the acts and words of the mob or any members of it, as in Rex v. Gordon, 21 State Trials, 485 (563), wherein evidence of the cries- of the mob “No Popery,” as it was proceed- ’ ing towards Parliament House, were held competent and admissible as a part of the res gestee. What Dr. McMullan said to the feme plaintiff, Mrs. Saunders, when he was administering morphine hypodermically, is not of sufficient importance to warrant the granting of a new trial, if it was incompetent as evidence. The evidence as to her highly excited and nervous condition was overwhelmingly established by the evidence, and there was none to the contrary. We are permitted to use our common sense sometimes in deciding legal "questions, and every one must know that the good doctor was administering something medicinally for the alleviation of her sufferings and to quiet her excited nerves. Whether it was morphine, or any other opiate, narcotic, anodyne, or sedative, can make no essential difference. It was evidently given, whether internally or by hypodermic, to calm and soothe her disturbed feelings. We do not mean to imply that it was not competent as a statement accompanying an act and explanatory of it, but waiving, for the present, the question of its admissibility under the strict rule of evidence, it was harmless, if incompetent. Having passed the skirmish line, we will now address ourselves to the remaining point in the case, the validity of the judge’s charge upon the subject of forcible trespass and the right of self-defense. The charge was clear and sufficiently full, in the absence of requests for more specific instructions. If the defendant thought himself entitled to an instruction that “A person exercising the right of self-defense may safely act upon appearances, or the facts and circum,stances as they appeared to him at the-time, if he entertained an honest belief in their existence,” he should have asked the judge to make his charge more definite in that respect; and having failed to do so, — 472 — be cannot, after tbe verdict, complain. Simmons v. Davenport, 140 N. C., 407. He appeared, by bis silence, to be content with tbe instructions, and we will not bear bint speak now. Tbe judge laid down a correct rule, tbat tbe defendant must bave bad a reasonable apprehension tbat bis own life or limb was in jeopardy, and tbe jury are to judge of tbe reasonableness of bis fear, notwithstanding tbe other principle asserted. S. v. Nash, 88 N. C., 618. Would a man of ordinary firmness and similarly situated bave reasonably acted upon tbe assumption tbat be was about to receive serious bodily barm, and defended himself, giving him tbe benefit of bis view of the circumstances at tbe time? In Nash’s case, Judge Ashe said: “Tbe Court did not give tbe prisoner, in' Scott’s case (4 Ired., 409), tbe benefit of tbe principle, for tbe reason tbat no such instruction bad been asked in tbe court below, tbe judge concluding tbat tbe prisoner would bave requested tbe instruction if be bad acted upon such belief.” This is a sufficient answer to defendant’s exception for failure to give tbe instruction, tbe omission of which in tbe charge is now assigned ■ as error. A defendant must not sleep upon bis rights, but be vigilant; otherwise, tbe court may be betrayed into assuming tbat be bad none, because be did not assert them. But on other grounds, should tbe failure to insert tbe instruction in tbe •charge, even if it is correct in itself, be reversible error? We think not. Tbe defendant’s liability for a trespass or an assault depended, not upon bis right of self-defense. He was tbe aggressor and, with bis associates, bad pursued tbe plaintiff, W. 0. Saunders, even into bis own yard — it may, with ■strict regard for tbe facts, be said bad forced him there by bis fear of superior numbers, until be took refuge in bis own bouse and escaped from threatened violence to bis person. Tbe offense of forcible trespass or assault was complete at tbat very moment, and what occurred afterwards — when, in tbe apprehension tbat be was about to be attacked on bis own premises, Saunders fired bis pistol “to scare them off,” and defendant returned tbe fire — has nothing to do with tbe unlawfulness of tbe defendant’s acts, and does not excuse what they did. He bad already — 473 — committed a forcible trespass and assault, as we will see, and Saunders’ conduct, defensible, in law, as it is (S. v. Nash, supra), did not excuse bim or condone tbe offense be bad already committed. Who will say tbat Saunders did not bave reasonable ground to apprehend that they were about to attack bim, and even bis wife, whom be bad tbe right to defend, in bis own bouse? It would seem unnecessary to discuss the character of tbe defendant’s acts in order to show tbat they were unlawful and violative of tbe plaintiff’s rights of person and property. They were, at least, sufficient to constitute a civil trespass. “If three persons commit a trespass upon property, in tbe presence of tbe person in possession, their number makes it indictable, although actual force is not used.” S. v. Fisher, 12 N. C., 504. In tbat ease tbe learned and just judge who presided over this Court at tbe time (Chief Justice Taylor) said: “Tbe inquiry therefore is, whether tbe facts proved, according to the case sent 'up, amount to an indictable trespass. In Regina v. Soley it is said by Lord Holt tbat ‘As to what act will make a riot or trespass, such act as will make a trespass will also make a riot’; by which be must be understood to mean, if committed by three or more persons. 11 Mod., 116. Tbe converse of tbe proposition must be true, tbat a trespass committed by' three or more persons will make a riot. In every trespass, as well as riot, there must be some circumstances, either of an actual force or violence, or at least of an apparent tendency thereto, as are apt to strike a terror into tbe people; but it is not necessary tbat personal violence should bave been committed. Clifford v. Brandon, 2 Campbell, 369. Any resistance on tbe part of tbe prosecutrix must bave led to an actual breach of tbe peace; but tbe resistance of two women to tbe four persons who came to take tbe corn must bave been unavailing.” So in S. v. Rawls, 65 N. C., 334, it was held tbat when even four persons, with a gun and hoe, pursue another who is at a place where be has a right to be, and by threatening and insulting language put bim in fear or by what is -calculated to do so, and thereby induce bim .to go home sooner than be would bave — 474 — gone, or in a different way or course, and compel him by their numbers to do what he would not otherwise have done, they were guilty of a forcible trespass, although they did not approach nearer to him than seventy-five yards, and did not attempt to use their weapons. It is further said: “When a number of persons meet together, and there is evidence tending to show a common design to commit an assault upon another, they may all be properly found guilty, though only one of them used threatening and insulting language to him.” And again, said Judge Settle: “The prosecutor was where he had a right to be, and had just been engaged'in repairing his fences, which some one had knocked down, and no one had the right by numbers, manner, language, weapons, or otherwise to drive him home by a different path or at a different pace than that which he chose to take. What was the prosecutor to do? Was he to stand still and submit to a battery? Can the defendants stand in a more favorable light before a court of justice merely because their violence was not fully consummated in consequence of the flight of the prosecutor? Some stress seems to be laid upon the fact that the gun and other weapons were not taken from the shoulders of those carrying them. As is said in S. v. Church, 63 N. C., 16, that makes no difference, for 'that would have been but the work of a moment, and was not needed to put the prosecutor in fear and to interfere' with his personal liberty.’ ” But the subject was fully discussed in S. v. Davenport, post, 596, and the authorities cited, and it covers the questions now raised by the defendant. There can be no question that defendant is civilly liable for the trespass and assault. It can make no difference that this large multitude of people did not actually enter upon the premises of the plaintiffs oi-go within their curtilage. We have held that the gathering of a large number of persons on the public road in front of a man’s house, or the use of violent, abusive, or insulting language in a public or private road, or in the street of a city, in the presence and hearing of the owner of adjoining property, constitutes a forcible trespass. S. v. Lloyd, 85 N. C., — 475 — 573; S. v. Hinson, 83 N. C., 640. In S. v. Widenhouse, 71 N. C., 279, it is said tbat “The only privilege which the public have in a public road is that of passing over it, and those who abuse that privilege become trespassers ab initio " citing S. v. Buckner, 61 N. C., 558, where Judge Beade says: “All misbehavior is aggravated by being in a public place. The only privilege which the public have in a public road is that of passing over it. If they misbehave in it, they create a nuisance. The road is for travel and for no other purpose.” Judge Ashe said, in S. v. Davis, 80 N. C., 351: “He (the defendant) seemed to have rested his defense upon the ground that he was in the public road and had the right to do there as he pleased. In this he was mistaken. The public have only an easement in a highway — that is, the right of passing and repassing along it. The soil remains in the owner, and where one stops in the road and conducts himself as' the defendant is charged to have done, he becomes a trespasser, and the owner has the right to abate the nuisance which he is creating. The principle of molliter manus does not apply to a case like this, where the trespasser, armed with a pistol, is acting in such belligerent defiance. See S. v. Buckner, 61 N. C., 558. The defendant used language which was calculated and intended to bring on a fight, and a fight ensued. He is guilty. S. v. Perry, 50 N. C., 9; S. v. Robbins, 78 N. C., 431.” In our case it was a pistol duel which ensued from the defendant’s aggressive conduct, and the multitude with him supplied the place of the required force or violence, as it certainly tended to intimidate the plaintiffs and to put them in fear. S. v. Laney, 87 N. C., 535. It is, therefore, because the acts were committed in a public place and were just as much calculated to produce a breach of the peace as if actual entry had been made upon the premises, which could be done in a moment, that we cannot escape the conviction that this invasion of the defendant and his conspirators was conducted in such numbers and with such a display of force as to overawe and intimidate the plaintiffs, and it surely tended to a breach of the peace. He is contending that it did actually lead to that result, as he is charging the plaintiff ~W. 0. Saunders with — 476 — assaulting biro, and putting him on tbe defensive, so that be returned bis fire, and we bave an alleged duel; yet nobody is guilty — and surely not tbe aggressors! Tbe eases collected in Walser’s Index-Digest of tbe Criminal Law, at pages 162-166, will be found, wben examined, to fully sustain our view of tbe facts of tbis case, wben considered in tbeir legal aspect. “A person wbo merely stops on tbe sidewalk in front of a man’s bouse and remains there, using abusive and insulting language towards bim, commits a (civil) trespass.” 28 Am. and Eng. Enc., 553, citing Adams v. Rivers, 11 Barb. (N. Y.), 3901. It is argued, and witb some plausibility, that tbe court erred in allowing tbe jury to award punitive damages, in addition to those which are actual and compensatory. It would be exceedingly strange if a civil injury, which is also a crime, does not entitle tbe injured party to vindictive damages, and yet it is said that tbe reason why tbe law should be so is tbe very fact -that tbe defendant will be punished in tbe criminal indictment, if convicted. But be may not be either indicted or adequately punished. Whatever may be tbe law elsewhere, tbis Court has held, according to tbe rule, which we think is general, that wben tbe defendant has been indicted and punished for tbe crime, tbe pecuniary punishment can be considered by tbe jury in reduction of punitive damages. Johnston v. Crawford, 61 N. C., 342. Is not tbis tbe fair and equitable rule? Should tbe wrongdoer escape bis full and proper measure of punishment in tbe civil suit until be is ready to show that be has made proper amends to tbe public in tbe criminal prosecution? Even then tbe payment of tbe fine may be considered only in reduction of tbe damages, as we bave shown, and does not bar tbe claim to vindictive damages. In Sowers v. Sowers, 87 N. C., 303, Chief Justice Smith says: “Even after conviction and punishment by fine under an indictment for an assault, it would not defeat tbe right of tbe injured party to recover exemplary damages, or, as it is sometimes called, ‘smart money,’ and could only be made available in reduction of damages,” citing Smithwich v. Ward, 52 N. C., 64, and approving tbe law thus stated by Judge Manly: “Tbis — 477 — element, in tbe estimate of damages, is allowed, to punisb tbe defendants for violating tbe laws, and by making them smart, to deter others as well as themselves from similar violations. Tbe principle upon which society acts in punishing criminally is precisely the same. The public never is actuated by revenge, but solely by a motive of self-protection, and punishes to prevent a repetition of the offense by the culprit, or its perpetration by others.” It is not, and should not be, his liability to be criminally indicted and punished for the same offense that entitles him to any reduction, but his actual prosecution and punishment for the same. Sedgwick, one of our most accurate writers upon this subject, has given this rule to guide us: “Thus far we have been speaking of the great class of eases where no question of fraud, malice, gross negligence, or oppression intervenes. Where either of these elements mingle in the controversy, the law, instead of adhering to the system, or even the language of compensation, adopts a wholly different rule. It permits the jury to give what it terms punitory, vindictive, or exemplary damages; in other words, blends together the interests of society and of the aggrieved individual, and gives damages not only to recompense the sufferer, but to punish the offender.” 1 Sedgwick on Damages, p. 53; 13 Oye., 106. We had occasion to consider this question in Jackson v. Telephone Co., 139 N. C., 347, and in that case, after a review of the precedents, we arrived at this conclusion: “The doctrine is well settled that the jury, in addition to compensatory damages, may award exemplary, punitive, or vindictive damages, sometimes called ‘smart money,’ if the defendant has acted wantonly or with criminal indifference to civil obligations (R. R. v. Prentiss, 147 U. S., 106), or (the defendant) has been guilty of an intentional and willful violation of the plaintiff’s rights. R. R. v. Arms, 91 U. S., 489; Hansley v. R. R., 117 N. C., 565.” Barry v. Edmunds, 116 U. S., 550, sustains the doctrine in the following words: “It is settled in this Court that in an action for trespass, accompanied with malice, the plaintiff may recover exemplary damages in excess of the amount of his injuries, if the ad damnum is properly laid.” See, also, Will — 478 — iams v. R. R., 144 N. C., 498. Even under' tbe rule as stated in Remington v. Kirby, 120 N. C., 320, the plaintiff was entitled to punitive damages. It is the willful disregard of the rights of another, treating him with contempt or insult, or willfully or wantonly trespassing upon his lawful rights, that requires rebuke and makes the necessity for vindicatory justice; sets an example to wrongdoers and appeases an offended society, whose members should be permitted to live in peace and without molestation, and not be subjected to disturbance in their Sunday devotions or in their quiet and peaceful homes, by an unlawful invasion by those who, strangely enough, imagine that they can resent alleged grievances by themselves becoming the violators of the law. This is an aggravated case, and the verdict was none too large. A citizen returning from church on a Sabbath evening is accosted on the street by the defendant and his associates and offensive epithets applied to him, and he is pressed upon so hard that he is compelled to seek protection and safety in the recesses of his home; and still the defendant contends that these acts are but a simple violation of the plaintiff’s rights, without any features of aggravation, when it appears that he fired into the house and narrowly missed killing or severely injuring • plaintiff’s wife — a defenseless woman, whom he should have seen, as she was standing under the light. This case is the equal of any in our law books for its flagrancy, whatever the provocation may have been, and calls, if any state of facts can call, for the award of punitive damages. Chief Baron Pollock (of the Exchequer Chamber) said that vindictive damages were generally awarded in actions of trespass, if accompanied with' circumstances of insult or humiliation, or if the wrong is willfully committed in reckless or contemptuous disregard of the .plaintiff’s rights. In such a' case, he thought — and his associates, Barons Brwmwell, Wilde and Channel, agreed with him — the jury should be free to assess damages beyond those which are awarded in the ordinary case, where the wrong is unattended by any such circumstances, and he added that the courts have always recognized the distinction between damages given with a liberal and a sparing hand. — 479 — Embleu v. Myers, 6 Harlst and Norman, 54; Day v. Woodworth, 13 How. (U. S.), 363, 371; McNamara v. King, 7 Ill., 432. If a wrong is willful, compensatory damages are not adequate, but tbe' defendant must pay an additional sum for tbe sake of society and to discourage a repetition of bis offense against its laws. In a case where tbe circumstances of tbe assault were mucb less aggravated than those appearing in tbe record, Chief Justice Gibbs said: “I wish to know, in a case where a man disregards every principle which áctuates tbe conduct of good citizens, what is to restrain him except large damages? To be sure, one can hardly conceive worse conduct than this. What would be said to a person in a low station of life who should behave himself in this manner? I do not know upon what principle we can grant a rule (for a new trial) in this case, unless we were to lay it down that the jury are not justified in giving more than the absolute pecuniary damages that the plaintiff may sustain.” The subject of punitive damages has been considered at this term in a learned opinion by Justice Holce, delivered in Blow v. Joyner, ante, 140, a case much like this in some of its features. But the defendant’s counsel contended that there were no actual damages, and, at most, the plaintiffs could recover only nominal damages; and this being so, it follows that no exemplary damages can be awarded. ¥e do not assent to the premises or the conclusion. In answer to a similar contention, we find the following in 1 Sedgwick on Damages (8 Ed.), see. 361: “If the plaintiff has suffered no actual loss, he cannot maintain an action merely to recover exemplary damages. A plaintiff has no right, the courts say, to maintain an action merely to inflict punishment; exemplary damages are in no case a right of the plaintiff, and cannot, therefore, become a cause of action. If, however, a right of action exists, though the loss is nominal, exemplary damages may be recovered in a proper case; for the plaintiff had a right to maintain his action apart from the privilege of recovering exemplary damages. So in case of a malicious trespass on 'land, though the actual damage is nominal, exemplary damages may be recov — 480 — ered.” Wilson v. Vaughan, 23 Fed. Rep., 229; Hefley v. Baker, 19 Kansas, 9. The same rule was applied by Chief Justice Wilmot in Tullidge v. Wade, 3 Wils., 18. It is erroneous, though, to assume that there was no actual damage done by the defendant which gave the plaintiff a right to substantial compensation. He deliberately shot into the house, frightened and alarmed the plaintiffs, who were rightfully and peacefully its occupants. These and some other acts are properly subjects-of fair compensation, and not merely of nominal damages. In Rogers v. Spence, 13 M. and W., 571, Chief Justice Denman said: “The actions of trespass on real and personal property were an extension of that protection which the law throws-around the person, and substantial damages may be recovered in respect of such rights,' though no loss or diminution in value of property may have occurred.” It is held to be the law that an individual whose rights of person or property are thus violated is generally entitled to recover damages for pecuniary loss, physical pain if any, inconvenience, injury to feelings, and mental suffering, pain, vexation, anxiety, the sense of wrong, shame or humiliation in the sufferer’s breast, resulting from an act dictated by a spirit of willful injustice, or by a deliberate intention to vex, degrade, or insult, the latter being sometimes called solatium — solace or recompense for the wounded feelings, as distinguished from special or pecuniary damages. 1 Sedgwick (8 Ed.), sec. 37 et seq. Inconvenience, annoyance, or discomfort may also be considered. This, of course, is physical, and must not be purely imaginative, and must be produced through the medium of the senses, not flow from mere delicacy of taste or "refined fancy or abnormal sensibility. It must be in a tangible form and assessable at a money value. 1 Sedgwick, sec. 42, and eases cited; Williams v. R. R., supra; 4 Sutherland on Damages, secs. 1010a and 1241. “The motive with which a wrong is done in some cases affects the rule by which compensation is measured or losses estimated. Where there is fraud or other intentional wrong, compensatory damages are given with a more liberal hand by juries and their verdicts in such cases are less closely scanned by courts than — 481 — in eases where that element is absent. . . . But there is a more liberal allowance of damages where the tort is an aggressive one, and the entire damages or some part of them are not capable of measurement by some standard of value or definite rule.” We again remind those who are disposed to take the law into their own hands and punish their enemies or a supposed wrongdoer, that there is a sufficient legal remedy for every alleged grievance, and if they will not resort to the courts where it can be enforced, but prefer to act in defiance of constituted authority, the fault and the consequences will all be theirs, and they have no reason to complain if that same offended law, whose peaceful methods they have ignored, rebukes their defiance with heavy damages. It is suggested in the evidence that W. 0. Saunders had committed some gross impropriety by criticising a minister of the gospel in his newspaper. The specific offense is not pointed out, nor are we in any way informed as to the nature of his criticism. But this is all immaterial. Perhaps he may have greatly exceeded the limits of fair and proper comment, and that which he did should be reprobated. We cannot say how this is, nor need we, as the matter is not before us. There is one thing very certain, though: the defendant, and the multitude he was leading, had no right to resent what he had said by approaching him and his home in a hostile manner, with threats and menaces, and with a deadly weapon, to execute revenge upon him, however grievous his offense against them or against society, and not even if it was a criminal libel he had published. Government could not, upon any other principle, exist or continue as it was designed to be, when organized for the peace, safety, welfare, and happiness of the people. Tf the plaintiff, W. O. Saunders, has committed any wrong, if he has willfully criticised, a minister or committed any other offense against public decency or social order, we have not the slightest word to utter in extenuation of the outrage; but he should be punished by the law and not by the mob. We find no error in this record, and' it must be so certified. No error.