Lizana v. Lang

Mayes, J., delivered the opinion of the court. The trial court erred in giving the first and third instructions asked by defendant. By the first instruction the jury are told that “if they believe from the evidence that Lizana waited for Lang to come out of the town hall for the purpose of provoking a difficulty, and that when Lang came out Lizana accosted him and began a quarrel, and that Lizana, during the course of the quarrel, challenged Lang for a fight, and that Lizana was then armed with a deadly weapon, and that Lang thereupon immediately armed himself and accepted the challenge, and the blow was struck by Lang in an altercation that thereupon then and there ensued, they shall find for the defendant.” Section 1428, Code 1892 provides that “in all trials for assault and battery, or for an assault, the defendant may give in evidence, in excuse or justification, any insulting words used by the person on whom the assault, or assault and battery was committed, at the time of the commission thereof, towards the defendant,” etc.; but neither in this statute, nor in any other authority which we have been able to find, has it ever been held that the acceptance of a challenge to fight, and voluntarily engaging in a fight by one party with another, because of a challenge so to do, can be set up as a defense in a civil suit for damages for- an assault and battery. The fighting under a challenge is unlawful, and affords no justification to either party, and any assault and battery so committed is both a criminal offense and a civil liability. The facts in this case show that plaintiff and defendant engaged in a wordy battle on the street, indulging in many epithets towards each other; that the defendant left the plaintiff where the altercation had occurred, and went about one hundred and twenty-five feet, to where his home was, and got two pistols, [474] placing one in his pocket, and keeping the other in his hand. While the defendant had gone after his pistols, plaintiff was placed under arrest by an officer. Defendant returned to where plaintiff was, having a pistol in his pocket and one in his hand, invited plaintiff to come on, and, when he started, struck him with the pistol. The testimony shows that defendant was so eager to get at plaintiff that he jerked loose from a party who tried to stop him, while he was returning from his house with the pistols, and, when one of the pistols was taken away, he drew another. In a suit for damages for an assault and battery, the defendant must show that he is without fault; but this cannot be done by showing that he engaged in the fight because his adversary challenged him to do so. It takes proof of facts other than this to show justification. 3 Cyc., p. 1070, note 62. The third instruction for defendant tells the jury, “if they believe from the evidence that plaintiff voluntarily entered into and provoked a quarrel with defendant, and that plaintiff then- and there used language inviting a fight, for the purpose of and calculated to the bringing on of a fight, then the plaintiff is entitled to nothing, and the jury should so find.”- This instruction, on the facts in' this ease, is erroneous. It might have been good as an announcement of the law, if the battery had been committed at the time the testimony shows the provocation occurred; but defendant did not then commit the assault and battery complained of. On the contrary, the testimony shows that after the provocation defendant, went one hundred and twenty-five feet to his home, and into his desk, procured weapons, and returned to where plaintiff was and then committed the assault and battery. He had ample time for deliberation and reflection before returning to resume the quarrel. We do not want to be understood as saying that the above instruction is good in every case where one is sued for an assault and battery, but that this instruction might have been good in this case if the facts had supported it. Even in a case where the plaintiff provokes a difficulty, if the battery is excessive or unreasonable, the [475] fact that the difficulty was provoked by the plaintiff can afford no justification to the defendant. Reversed and remanded.