Nelson v. Foster

• Decision Date: 31 October 1877
• Citation: 66 Mo. 381
• Parties: NELSON, Appellant, v. FOSTER.
• Court: Missouri Supreme Court

66 Mo. 381

NELSON, Appellant,

v.FOSTER.

Supreme Court of Missouri.

October Term, 1877.

Appeal from St. Francois Circuit Court.--HON. LOUIS F. DINNING, Judge.

Abner Green for appellant.

The court below committed error in directing the jury orally, that they could disregard the evidence which had been admitted without objection, in relation to defendant's character; also in giving the third instruction for defendant.

Clardy & Thomas for respondent.

HENRY, J.

Plaintiff, appellant, sued the defendant for damages for an assault and battery. The verdict was for defendant, and from the judgment thereon plaintiff appeals. The plaintiff, as a witness, in his testimony, threw all the blame of the conflict upon defendant, but the weight of evidence was to the effect that plaintiff first assaulted defendant with a cane, choked him, and had him down on the floor in a saloon, when his finger was severely bitten by defendant. The only attempted corroboration of plaintiff's version of the difficulty, and it amounted to no corroboration, was the testimony of St. Clair, who said that he heard defendant say that in a fight with plaintiff he had bitten his finger, and was d--d sorry he did not bite it off, and that on another occasion he heard defendant say, speaking of plaintiff having gone to get the finger amputated, “he wished to God that he would have to have his hand cut off.” The testimony of defendant, in which he was corroborated by two or three witnesses, who saw the fight, was that plaintiff, with a cane, assaulted defendant, choked him, pushed him down and fell upon him, and that while plaintiff was attempting to gouge him in the face, his finger was bitten. The court, no objections being made to it, admitted evidence to prove that defendant was a qurrelsome, fighting character.

REMARKS OF JUDGE IN PRESENCE OF JURY.

Defendant offered to prove that plaintiff bore the same character, and on objection, the court refused to admit the evidence, remarking that he admitted the evidence of defendant's character because no objection was made to it, and that he would have excluded it if defendant had objected.

This remark of the court is assigned as error. It does not appear in the bill of exceptions, but no doubt the defendant's counsel, when he offered evidence of plaintiff's character, called the court's attention to the admission of evidence of defendant's character, and the remarks of the court were in answer to that suggestion. Whether so or not, the evidence of defendant's character was inadmissible, and the court might have directed the jury to disregard it. Greenl. Ev., Vol. 1, 79.

2. INSTRUCTIONS, harmless error in.

The instructions to the jury were as favorable to plaintiff as the law would have warranted. They were told that if defendant assaulted and bit plaintiff's finger, they should find for plaintiff, and give him exemplary damages, and that the amount within the amount claimed in the petition was for them to determine from all the circumstances in evidence; and further, that if they found that defendant bit plaintiff's finger, and that it was unnecessary for him to do so in order to defend himself against the attack of plaintiff, they should find for plaintiff, and assess such...