Collins v. Waters

• Decision Date: 30 September 1870
• Citation: 54 Ill. 485,1870 WL 6364
• Parties: JOSHUA COLLINS et al.v.JAMES WATERS.
• Court: Illinois Supreme Court

54 Ill. 485

1870 WL 6364 (Ill.)

JOSHUA COLLINS et al.

v.JAMES WATERS.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

The opinion sufficiently states the case.

Mr. E. C. FELLOWS and Mr. W. T. HOPKINS, for the appellants.

Messrs. S. W. & T. B. HARRIS, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action for an assault and battery. The defendants pleaded the general issue, and that the injuries were committed by them in necessary self defense.

On the trial the court, against the objection of the defendants, permitted the physician who attended upon the plaintiff after he was injured, to give in evidence to the jury, the statement to him of the plaintiff, how, and with what, an injury which the plaintiff had received on the side of the head, on the left temple, had been produced, to-wit: by being kicked with a boot.

The physician had properly testified to the statements of the plaintiff, as to the part of his person which was hurt, his sufferings and symptoms, etc. but to give in evidence the plaintiff's declaration as to how, and with what instrument the injury was produced, so as to affect the defendants with having inflicted it in that particular way, was improper. The evidence was contradictory as to the plaintiff having been kicked, particularly after he was down upon the ground, and raised the question, whether the injury was not received by the plaintiff's fall on the frozen and icy ground; which gave a material bearing to the improperly admitted testimony.

The court gave the following instructions to the jury, on the part of the plaintiff, which are complained of by the appellants:

“2. Under these issues the jury will inquire: 1. Does the evidence show that either Jeremiah or Joshua Collins, or both of them, assaulted and beat Waters in a rude and angry manner; and if, from the evidence, the jury believe that the defendants, or either of them, did, with force and violence, assault and beat the plaintiff, as by him charged in the declaration, then it will be their duty to find the defendants, or either of them, guilty, as the proof may warrant.

4. In order to find Jeremiah and Joshua Collins jointly guilty of the assault on Waters, on Monday, the twenty-ninth of January, 1866, it is not necessary that Joshua Collins should have actually struck Waters, or kicked him; but if the jury believe, from the evidence, that Jeremiah then and there struck and kicked Waters, with force and violence, and that Joshua then and there stood by, aiding, advising or countenancing, or encouraging Jeremiah so to strike and kick Waters, he thereby became a principal in the transaction, and was equally guilty with Jeremiah, under the law.

7. The jury are further instructed, that if they believe, from the evidence, that either Jeremiah Collins or Joshua Collins, or both of them together, made an assault, on the twenty-ninth of January, 1866,...