Rudolph v. Landwerlen

• Decision Date: 29 June 1883
• Docket Number: 9479
• Citation: 92 Ind. 34
• Parties: Rudolph v. Landwerlen
• Court: Indiana Supreme Court

92 Ind. 34

Rudolph v. Landwerlen

No. 9479

Supreme Court of Indiana

June 29, 1883

Rehearing: December 13, 1883

Petition for a Rehearing Overruled, Reported at: 92 Ind. 34 at 41.

From the Shelby Circuit Court.

The judgment is reversed, at the appellee's costs, and the cause is remanded for a new trial.

B. F Love, H. C. Morrison, T. B. Adams and L. T. Michener, for appellant.

O. J Glessner, E. K. Adams and L. J. Hackney, for appellee.

OPINION

Black, C.

This was an action brought by the appellee against the appellant to recover damages for an assault and battery. There was an answer in two paragraphs, the first a general denial, the second justification. The appellee replied by a denial. The cause was tried by a jury, and a verdict was returned for the appellee, his damages being assessed at two hundred dollars. A motion for a new trial made by the appellant was overruled, and under an assignment of this ruling as error all the questions to be decided arise.

It is contended, on behalf of appellant, that the court erred in giving what he designates as the fourth and sixth instructions to the jury. It was stated as a cause in the motion for a new trial, that the court erred in giving to the jury, of its own motion, instructions numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and in the giving of each of them. The charge to the jury is brought into the record by bill of exceptions. The charge occupies over seven pages of the record. The instructions were not numbered. Appellant, in making the marginal notes required by rule of this court, has marked with pencil numbers from 1 to 14 opposite paragraphs into which the charge is broken, some of which contain distinct propositions, while others are somewhat fragmentary. Appellant by request might have caused the instructions to be numbered by the court. Section 324, code of 1852; section 533, R. S. 1881. We can not recognize the numbers which he has placed upon the transcript; and, ignoring them, it could not be our province to number the instructions. To direct our attention to instructions by numbers, they must be numbered as contemplated by the statute. No question, therefore, is before us upon the instructions to the jury.

Another cause stated in the motion for a new trial was excessive damages. There was evidence that the defendant struck the plaintiff upon his head with a heavy cane and knocked him down; that the plaintiff, from the effects of the blow, became unconscious for a time; that the blow caused his face to become discolored; that he was unable to work for two weeks; that he suffered great pain, and could not sleep for a month; that soon after he was struck he had a discharge from one of his ears, and one of his eyes became so affected that everything he looked at appeared to be double; that at the time of the trial, in January, 1881, the injury having been inflicted in June, 1879, he sometimes suffered pain, and he was still troubled with double vision, which he had remedied by the use of spectacles.

We can not say that the amount awarded by the jury was more than enough to compensate the plaintiff.

Over the objection of the defendant, the plaintiff was permitted to introduce in evidence the record of a criminal prosecution of the defendant for the same assault and battery, and his conviction thereunder, upon his plea of guilty, before a justice of the peace.

It is contended that this was error, because the appellee was not a party to the action the record of which was so admitted in evidence; and appellant's counsel have cited authorities relating to the effect of judgments by way of estoppel. Unquestionably, this record could not operate as an estoppel, but no such effect was claimed for it. The court instructed the jury that "this record should not be regarded in this case as conclusive upon the defendant, but only as an admission on his part of a material fact in issue in the case," and further instructed as to the character of the evidence as an admission.

A plea of guilty must be presumed to have been made by the defendant in person, solemnly and without coercion, with opportunity to take advice of counsel. In a subsequent civil action involving the same subject-matter, his plea is admissible against him, though it is not conclusive, but is subject, like other confessions, to be explained or controverted. The action of the trial court is sustained by the authorities in this country and in England. Corwin v. Walton, 18 Mo. 71; Clark v. Irvin, 9 Ohio 131; Green v. Bedell, 48 N.H. 546; Bradley v. Bradley, 11 Me. 367; Regina v. Moreau, 11 Q. B. 1028, 1033; 1 Greenl. Ev., sections 216, 257, 537; 2 Greenl. Ev., section 90; Whart. Ev., sections 783, 838, 1110; Taylor Ev., section 1506.

Appellant has sought to bring to our attention certain alleged misconduct of the jury, in arriving at the amount of their verdict by compromise. This cause for a new trial, being included in the second specification of the causes designated by statute, must be sustained by affidavit showing its truth. Sections 352, 355, code of 1852; sections 559, 562, R. S. 1881. But the affidavit by which it was sought to support this cause is not made part of the record by bill of exceptions. We, therefore, can not examine it.

One more reason only for a new trial, of those presented by the argument of counsel, remains to be examined, and this relates to certain objectionable remarks of the attorney for the plaintiff in his closing argument to the jury. Appellant sought to sustain this cause, also, by affidavits which are not preserved for the record by bill of exceptions. This cause, however, is one included either in the first cause or in the eighth cause of those specified in the statute (section 352, code of 1852; section 559, R. S. 1881), and the facts upon which it is based must be shown by bill of exceptions. The argument of counsel to the jury, like the introduction of evidence, proceeds under the supervision of the court, and where counsel abuse their necessarily broad privileges in argument, the facts having transpired in the presence of the court, as a part of the trial, they are within the knowledge of the court without affidavit, and should be stated, as they are known by the judge, in a bill of exceptions signed by him.

The facts in this case are detailed by bill of exceptions, and this statement of them will be examined, and to this version of the matter we would look, though the affidavits were also preserved by bill. The bill shows that on the trial of the cause, when a person named, attorney for the plaintiff, was making the closing argument to the jury, he, as a part of his argument, used the following language, in substance: "It is in evidence that this defendant is a Catholic priest, and all of his witnesses are members of his church; and it is a strange coincidence that they track the evidence of the defendant with that minuteness and precision in the use of words and language, that can not be accounted for, except, as shown by the evidence, they heard the defendant from the pulpit detail his version of the case, and they can come here and swear to his version of the case, and the defendant can...