Brent v. Brent

Lacey, P. J. We think there was fatal error on the part of the court in giving the 3d of appellee’s instructions. It was erroneous in telling the jury that they must he satisfied by a preponderance of the evidence. This was a civil action, and the jury were only required to find from a preponderance of the evidence that the plea of self-defense was made out. An instruction similar to this was condemned in Ruff v. Jarrett, 94 Ill. 475. In commenting on the instruction, the court say: “It imposed a higher degree of proof than is imposed by law. The jury were only required to believe from a preponderance of the evidence, and not to be satisfied by the proofs, as the instruction requires. Satisfactory evidence almost excludes doubt, whilst a belief from a preponderance of the evidence does not, but leaves the balance in the minds on one side of the proposition.” For this, error alone, the judgment must be reversed. It is claimed that the error was cured by other instructions given by the court, both on the part of appellant and appellee, but we think that, under the close state of the evidence, the error' would not be cured thereby. The instructions should be consistent and harmonious, and the law correctly given. Some complaint is made that the court erred in giving the instructions for appellee, that authorized the jury to aggregate the proof in all the acts of trespass charged, under one count, or what was'the same, to recover a greater amount under the counts for killing the horses than was claimed in those counts, when the defendant might not have been found guilty on the other count for personal injury. We do not deem it necessary to spend time to examine this question, as the judgment will be reversed, and the declaration can be amended so as to cure any such error hereafter, if appellee so desires. We see no serious error in the giving of the appellee’s first instruction in regard to the question of malice. The fourth instruction should have been so modified as to allow recovery under the circumstances stated, that appellee had provoked the quarrel by first striking appellant with a club, if, after striking, he had in good faith declined any further combat. Kinney v. The People, Chicago Legal News, 169, Feb. 2, 1884. We see no serious fault with the other of appellee’s instructions complained of. The court, as we think, did not err in refusing the first and second appellant’s refused instructions, or the third. For the reasons above stated, the judgment is reversed and the cause remanded. Reversed and remanded.