Collins v. Todd

• Decision Date: 31 January 1853
• Parties: COLLINS, Appellant, v. TODD, Respondent.
• Court: Missouri Supreme Court

17 Mo. 537

COLLINS, Appellant,

v.TODD, Respondent.

Supreme Court of Missouri.

January Term, 1853.

1. In an action of assault and battery, evidence of abusive language used by the plaintiff towards the defendant's niece and sister-in-law, a day or two before the assault, was held inadmissible in mitigation.

2. A defendant cannot, after proving the plaintiff's statements immediately after the difficulty as to its origin, prove his own statements in reply.

Appeal from Howard Circuit Court.

Leonard, for appellant. 1. The facts received in evidence in mitigation of the offense were an aggravation instead of a mitigation of it. What is done in the heat of blood, the law attributes to the infirmity of human nature, and extenuates. What is done after time for reflection, proceeds from the wickedness of the heart--is revenge, and aggravates the damages. Lee v. Woolsey, 19 J. R. 319. Avery v. Ray, 1 Mass. Rep. 12. Matthews v. Terry, 10 Conn. Rep. 459. Rochester v. Anderson, 1 Bibb, 428. Fullerton v. Warrick, 3 Blackf. 219. Cushman v. Waddill, 1 Baldwin, 58. Anderson v. Johnson, 3 Harr. & John. 162. 2. It was competent for the defendant to give in evidence the plaintiff's account of the commencement of the affray; but his own account of the matter was not evidence for him.

Clark, for respondent. The evidence offered by the defendant in mitigation was properly received, as forming a part of the transaction--to show the motive of the defendant, and to guide the jury in assessing damages. This principle has been sustained by some of the most respectable courts in the Union, and is most conformable to reason. 3 McCord, 66. 2 McMillan, 147. 1 Bald. C. C. R. 58.

RYLAND, Judge, delivered the opinion of the court.

This was a civil action by Collins v. Todd, for an assault and battery upon him while at work in his field. The defendant, in his answer, admitted an assault and battery, but insisted that it was in his own defence; stating that on the day the affray occurred, he was in bad health, and accidentally seeing the plaintiff in his field, went there to learn of him why he had used abusive language towards his sister-in-law and niece, when the plaintiff assaulted him, and thereupon he defended himself.

Upon a trial by a jury, the defendant offered evidence to the effect, that his niece, Rebecca Todd, the daughter of a deceased brother, was at the plaintiff's house, who lived near neighbor to them, a short time before the affray, and in a dispute between plaintiff and herself, about plaintiff's treatment of her mother's horses, plaintiff said, “you damned little bitch, you'll go and tell your uncle;” and in the further progress of the dispute, called her mother a ““damned liar;” that on Sunday, witness communicated this to the defendant, her uncle, and that the affray occurred on the succeeding Monday or Tuesday. This evidence was objected to by the plaintiff and allowed by the court.

The defendant also gave in evidence, upon the cross examination of Mr. Percival, one of the plaintiff's witnesses, that, coming up to the parties immediately after the affray, he asked them whether they had been making a trial of their strength; to which plaintiff said, “he didn't give me a chance, but came up with his stick and struck me;” defendant said, “I didn't,” and plaintiff replied, “you did.”

The plaintiff asked the court to direct the jury, “that the plaintiff's statement, as to the commencement of the affray, made to witness, Percival, and given in evidence by the defendant, was legal evidence of the fact stated, and that the defendant's denial thereof was not evidence for him; and that the language used by the plaintiff to the witness, Rebecca Todd, was no extenuation of the defendant's offence, and ought not to be taken into consideration, in assessing the damages for the assault and battery.” These instructions the court refused, and, at the instance of the defendant, instructed the jury, that “if the plaintiff abused defendant's sister-in-law and niece, which was communicated to the defendant, who afterwards, the first time he met the plaintiff, assaulted and beat him, this was matter in mitigation of damages.” The jury found a verdict for the plaintiff, and assessed the damages at one cent, which the court refusing to set aside on the plaintiff's motion, the plaintiff appealed to this court.

The questions arising from the above statement of the facts, depend upon the rules of evidence. Did the court below admit improper evidence in mitigation of damages? And was it competent for the defendant to ask a witness what the...