Wells v. Englehart

Mr. Justice Freeman delivered the opinion of the court. Appellant contends that the verdict was clearly against the weight of the evidence. It appears from appellee’s own testimony that he was the aggressor. He sought appellant in the place where the latter was employed. He began the altercation by telling appellant he thought he was “ a damned liar. ” Although denying that he struck the first blow he says that he intended to and did “ get in first. ” According to the other witnesses he apparently struck all the blows, and says that he “ was stopped too soon ” to enable him to inflict all the injury he would apparently have liked. The evidence conclusively preponderates in favor of appellant, tending to show that appellee provoked the quarrel, that he was the aggressor and that he intended to and endeavored to injure appellant. Even if his statement be accepted that he “ hit plaintiff after plaintiff caught hold of him,” no other conclusion is possible, from this record, than that he used more force than was necessary for his alleged self defense. The evidence on both sides indicates that appellee was animated by a vindictive spirit of revenge, which he had cherished for a considerable time, and appellant’s evidence, uncontradicted apparently in this respect, tends to show that he carried a memorandum to keep him in mind of his purpose. There is no evidence tending even remotely to show that there would have been any difficulty had not appellee provoked it. “ The law will not permit him to provoke or bring on a difficulty with the plaintiff and then avail himself of the plea of self defense.” Hulse v. Tollman, 49 Ill. App. 490-495, and cases there cited. The burden of proof was on appellee to maintain his plea of son assault demesne. Gizler v. Witzel, 82 Ill. 322-326. It is not important which party made the first assault, if it is apparent, as the preponderating evidence tends to show, that appellee used more force than was reasonably necessary, even if acting in defense of his own person. Abt v. Burgheim, 80 Ill. 92-95; Trogden v. Henn, 85 Ill. 237. If a man under such circumstances strikes “ a blow not necessary to his defense, or after all danger is past, or by way of revenge, he is guilty of an assault and battery.” Ogden v. Claycomb, 52 Ill. 366 ; Gizler v. Witzel, supra. A charge of swindling is “ no justification for the beating and wounding.” Sorgenfrei v. Schroeder, 75 Ill. 397-399. The first instruction given at the request of appellee was in substance that the burden of proof was on the plaintiff and that the latter must make out his case by a preponderance of the evidence. This was erroneous in a case of this kind, where the burden of proof was on the defendant under his plea of son assault demesne, to which replication was filed. In effect that plea admits the assault but avers that it was committed in self defense, the defendant using no more force than was necessary for that purpose. The fact that a plea of not guilty was also filed does not change the situation in this respect. On the issue raised by the special plea the burden was still upon the defendant. Hulse v. Tollman, 49 Ill. App. 490-497. It was error to place it entirely upon the plaintiff. What is said in Boren v. Bartleson, 39 Ill. 43-45, is, we think, applicable in this case, and vve need not extend its consideration. The judgment of the Circuit Court will be reversed and the cause remanded. Reversed and remanded.