Galvan v. Torres

• Decision Date: 10 January 1956
• Docket Number: Gen. No. 10860
• Citation: 131 N.E.2d 367,8 Ill.App.2d 227
• Parties: James K. GALVAN, Appellee and Cross-Appellant, v. Louis TORRES, Appellant and Cross-Appellee.
• Court: United States Appellate Court of Illinois

Page 367

131 N.E.2d 367

8 Ill.App.2d 227

James K. GALVAN, Appellee and Cross-Appellant, v. Louis TORRES, Appellant and Cross-Appellee.

Gen. No. 10860.

Appellate Court of Illinois, Second District.

Jan. 10, 1956.

Taylor E. Wilhelm, Mendota, George H. Wiley, Ottawa, for appellant.

Zwanzig, Thompson & Lanuti, Ottawa, for appellee.

DOVE, Presiding Justice.

The complaint in this case alleged that the plaintiff, James K. Galvan, lived at 313 East Marquette Street and that the defendant, Louis Torres, lived at 315 East Marquette Street in Ottawa, Illinois, and that they both lived at said places on and prior to June 20, 1953; that at about 1:30 o'clock on the morning of that day, the defendant maliciously and wantonly assaulted the plaintiff while he, the plaintiff, was in his own yard, by slashing him with a knife inflicting serious wounds upon many and diverse parts of his body, and that as a result thereof the plaintiff suffered great pain, expended large sums for doctor and medical bills, was prevented from attending to his ordinary occupation and business, and was permanently injured. The answer of the defendant admitted that the parties lived in Ottawa as alleged but denied all the other averments of the complaint. Upon a jury trial of the issues thus made, a verdict was returned finding the defendant guilty and assessing the damages of the plaintiff at $10,000. After denying defendant's motions for a new trial and for judgment notwithstanding the verdict, the trial court entered judgment on the verdict. Thereafter plaintiff filed a motion to modify the judgment to include therein a finding that malice was the gist of the action. The court denied this motion. The defendant has appealed from the judgment entered against him, and the plaintiff has filed a cross appeal from the order of the court denying his motion for a finding that malice was the gist of the action.

Counsel for appellant insists (1) that the court erred in refusing to withdraw a juror and declare a mistrial because of prejudicial statements made in the presence of the jury by counsel for the plaintiff; (2) that the trial court improperly admonished counsel for defendant in the presence of the jury during the trial; (3) that the court erred in admitting certain evidence offered by the plaintiff and in refusing to admit certain evidence offered by the defendant. It is also insisted that the verdict is excessive and the result of prejudice against the defendant which was created by the erroneous rulings of the court and the deliberate misconduct of counsel for the plaintiff.

The evidence discloses that the plaintiff, his wife, Beatrice, and daughters, Aurora and Angela, lived at 313 East Marquette Street in Ottawa. The lot upon which their home was located was eighty-eight feet wide and one hundred thirty feet deep. The home of the defendant was immediately east and adjoining the Galvan lot and their residences were about forty feet apart and separated by a hedge fence. According to the testimony of the plaintiff, he, the plaintiff, arrived at his home about 5 o'clock on Friday afternoon, June 19, 1953, from his work as a bricklayer's helper. After he had had his evening meal, he left home about 7 o'clock, paid a coal bill to a Mr. Burke, and then he and Burke went to a tavern where they remained an hour and a half, during which time the plaintiff drank two bottles of beer. Mr. Burke went home, and the plaintiff proceeded to another tavern and remained there until after midnight. At the second tavern he had four or five bottles of beer. He then proceeded to another tavern, where he remained for fifteen minutes, and had a glass of beer there. He then proceeded homeward, entering his lot at the rear, and singing as he went along. Sitting upon the steps of the back porch of his home were his wife and daughter, Angela, and when the plaintiff arrived there he stopped singing. He refused his wife's suggestion to go into the house and go to bed but sat down on the porch step, took his shoes, socks, and hat off, cursed the mosquitoes, laid down on the ground under a pear tree three or four feet from the southeast corner of the steps of the rear porch and immediately went to sleep and knew nothing until the following Sunday morning when he awakened at the Ryburn-King Hospital in Ottawa.

According to the testimony of plaintiff's wife and daughter, Angela, they remained on the porch steps after the plaintiff had laid down under the pear tree. About fifteen minutes after he had gone to sleep, the daughter observed the defendant coming very slowly through the hedge from his property onto the Galvan premises. He had a knife in his hand and, without a word, proceeded to cut the prostrate body of the plaintiff. The other daughter of the plaintiff, Aurora, was in the house asleep but was awakened by her sister and ran to the yard and saw the defendant 'slashing' at her father with a knife. She called to the defendant to stop and ran for help. Police officers arrived shortly thereafter, and they testified that they found the plaintiff lying on the ground about six feet from the porch of his home all covered with blood and with his hat and a pair of shoes and socks lying next to his body. The blood was all in one place and in the form of a pool near the pear tree. An ambulance was called, and the plaintiff was removed to the Ryburn-King Hospital.

The defendant's testimony was to the effect that he was born in Mexico and unable to read or understand the English language. He testified that when the plainiff returned home about 1:30 o'clock on the morning of June 20, 1953, he was awakened by Galvan shouting in the window of the defendant's home that he was going to kill the defendant and his family; that he looked out the window of his bedroom and saw Galvan; that the defendant then put on his shoes and trousers and went outside to meet Galvan, and a fight between him and the plaintiff ensued. He stated that Galvan sang indecent words to him and started to kick him in the stomach and legs; that he, the defendant, then took his knife from his pocket and struck the plaintiff on the shoulder; that Galvan then went into his (Galvan's) yard and the fight was continued and Galvan fell under the pear tree and the defendant returned to his own home. Defendant denied that he ever cut Galvan after he fell, insisted that Galvan was not asleep at anytime and testified that he did not see Mrs. Galvan or either of the daughters there that evening.

When counsel for the plaintiff was stating his case to the jury, he outlined the facts that he expected to prove on behalf of the plaintiff. These included the fact that the defendant had been indicted for making an assault with an intent to inflict a bodily injury upon the plaintiff and that the defendant had pleaded guilty to this indictment. Counsel for defendant objected to these statements, but his objection was overruled. Upon the trial the court overruled defendant's objection to the introduction of this indictment and defendant's written plea of guilty thereto. Counsel now insist this was error. There is no merit in this contention. A plea of guilty to a criminal indictment for assault and battery is admissible in evidence in a civil case based upon the same assault and battery as it is an admission against interest. Young v. Copple, 52 Ill.App. 547; Cammarano v. Gimino, 234 Ill.App. 556. The defendant did not seek to explain his plea of guilty, nor was he asked by his counsel ...