Stone v. Heggie

Price, J., delivered tbe opinion of tbe court. This is a suit for damages in the circuit court of Carroll county by I. E. Heggie against I. B. and Dan Stone jointly, and grew out of assault and battery. In the fight I. B. Stone used a walking stick and Dan Stone used his fist. There were two separate assaults within an hour of ea.ch other, and two counts in the declaration; one upon each assault. Before the trial of the case in the court below, plaintiff dismissed his suit against Dan Stone, and elected to proceed against I. B. Stone alone. There is no pretense of any conspiracy on the part of the Stones to attack Heggie. There were others engaged in the fight. The court gave for plaintiff below the following instruction: “No. 3. The court instructs the jury, for the plaintiff, that if they believe that after the difficulty in the courthouse that Dan Stone and I. B. Stone and John Heggie and A. L. Heggie had another difficulty in front of Hawkins & McConnico’s store, and just as this difficulty was over, plaintiff, I. E. Heggie, as he walked out of Henry Nelson’s store asked, ‘What is the matter out here ?’ and that he walked south toward Hawkins & McOonnico’s store, and that there he was assaulted by I. B. Stone with a stick, and struck over the head with it, and also assaulted by Dan Stone, and knocked into the alley between Hawkins & McOonnico’s and Nelson’s, then they should find for the plaintiff on the second count in the declaration, and assess his damage at such an amount as they see proper, not to exceed in amount $3,000.” This instruction saddled upon I. B. Stone liability for the assault of Dan Stone upon the appellee. To relieve defendant Stone from this burden, the court gave defendant the following instruction: “No. 1. The court instructs the jury that in this case I. B. [415] Stone cannot be held responsible in damages for tbe acts and conduct of Dan Stone in evidence.” These instructions are in open conflict and misleading. Tbe court also gave for plaintiff tbe following instructions: “No. 6. Tbe court instructs tbe jury that it is their province to determine whether tbe stick introduced in evidence as tbe one used by I. B. Stone in assaulting I. R. Heggie is a deadly weapon, or one capable of producing great bodily barm.” “No. 7. Tbe court instructs tbe jury that insulting words will not excuse or justify an assault with a deadly weapon, une capable of producing great bodily barm.” Tbe defense relied upon to justify tbe assault was insulting words. Where a party relies upon insulting words to justify an assault with a weapon not a deadly weapon per se, tbe question as to whether tbe weapon used was a deadly weapon or not depends upon tbe character of tbe weapon and tbe manner in which such weapon was used. Tbe sixth instruction is erroneous in disregarding tbe manner in which tbe stick was used. It is not tbe law that a party insulted may not use a stick, when it is not used in tbe manner of a deadly weapon. Tbe seventh and eighth instructions given tbe plaintiff below are subject to tbe same criticism, and this error is not cured by tbe sixth instruction for tbe appellee, which instructs tbe jury that it is their province to determine whether tbe stick introduced in evidence is a deadly weapon, capable of producing great bodily harm. In Pittman v. State, 25 Fla., 648, 6 South., 487, cited by counsel for tbe appellant, tbe court said: “That any weapon is a deadly weapon which is likely to produce death, but a weapon capable of producing death is not necessarily a weapon likely to produce death.” In Skidmore v. State, 43 Tex., 93, tbe court beld that, where a weapon was not per se' a deadly weapon, tbe mode and manner in which it was used will determine its character as such. We approve this doctrine. People v. Rodrego, 69 Cal., 601, 11 Pac., 481. Reversed and remanded.