Yeska v. Swendrzynski

Dodge, J. Obvious error was committed in charging the jury that the assault conceded to have been made by one of the defendants, and of which there was some evidence as to the others, might be justified and a verdict for the defendants found in case the plaintiff committed the first assault and the defendants acted in self-defense. Respondents’ counsel substantially concede that such justification and defense was not admissible under mere general denial, and such is the law as settled by the authorities. Levi v. Brooks, 121 Mass. 501; Cooper v. McKenna, 124 Mass. 284; Barr v. Post, 56 Neb. 698, 77 N. W. 123; Atkinson v. Marran, 68 Wis. 405, 407, [477] 32 N. W. 756; 3 Cyc. 1084; 2 Ency. PL & Pr. 862. "We cannot doubt that the verdict in favor of all of the defendants may well bave been due to tbis error. Hence no course is open to us but to reverse tbe judgment and order a new trial. Certain other assignments of error are urged wbicb present questions at least possible of recurrence upon another trial, and while our conclusion upon them may not affect the result of this appeal they should be briefly considered. The first of these is the admission of the testimony of witnesses as to conduct of the plaintiff and defendants at and shortly prior to the assault, objected to as an attempt to prove justification not admissible under the answer. While, as already stated, proof of justification was not admissible, yet there is no rule upon which any of the acts and conduct of the parties in the transactions described by the plaintiff’s witnesses could be excluded. Their whole conduct must be open to description and proof by the eye-witnesses, and the mere admission of such evidence therefore could not in itself constitute error. Further, most of the protested evidence as to the conduct of the parties might well have been relevant to the question of the damages recoverable and much of it to the plaintiff’s contention that a conspiracy existed among the defendants to commit the assault. Plaintiff had proved that the three defendants had been prosecuted for this same assault and had all pleaded guilty. Error is assigned upon allowing the defendants to give explanation as to their reasons for such plea, consisting in pressure of farm work and expense of repeated journeys to the place of trial. In this we can discover no error. The conviction, together with the plea of guilty on which rendered, was admissible against them on the theory of an admission on their part of the guilt of assault, and, like all other admissions, should be given weight according to the circumstances. It is always competent to explain admissions in pais and the circumstances under which they are made in order to throw [478] light upon the force which should, he given to them. 2 Wig-more, Ev. §§ 1044, 1058. Apparently appellant was refused opportunity to prove the rest of a conversation of which defendants had proved part. This he should of course have been allowed to do so far as relevant. Smith v. Milwaukee E. R. & L. Co. 121 Wis. 253, 106 N. W. 829; Earley v. Winn, 129 Wis. 291, 306, 109 N. W. 633. By the Court. — Judgment reversed, and cause remanded for a new trial.