Gizler v. Witzel
| Decision Date | 30 June 1876 |
| Citation | 1876 WL 10206,82 Ill. 322 |
| Parties | PETER GIZLERv.GEORGE WITZEL. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Madison county; the Hon. WILLIAM H. SNYDER, Judge, presiding.
Messrs. METCALF & BRADSHAW, for the appellant.
Messrs. DALE & BURNETT, for the appellee.
This was an action of trespass for an assault and battery.
The defendant pleaded not guilty, and son assault demesne.
The first plea was, however, withdrawn, and to the second the plaintiff replied de injuria.
Upon a trial of this cause before a jury, the plaintiff recovered a verdict of $100. The court refused a new trial, and rendered judgment on the verdict.
The defendant, who brought this appeal, claims that the verdict is contrary to the evidence, and the court gave improper instructions for the plaintiff, and upon these grounds a reversal of the judgment is asked.
We can not hold that the jury misapprehended the evidence in this case, or that the verdict is not warranted by the testimony.
Appellee testified that appellant committed the first assault, and in this he is corroborated by two disinterested witnesses, who saw the difficulty. This is denied by appellant, who says he was struck first, and he is corroborated by one witness, but the preponderance of the evidence is clearly with appellee.
The appellant ordered appellee out of his vineyard. Appellee crossed the fence and went into the street, where, shortly afterwards, appellant followed him, with a knife in his hand. Appellee obtained a club, and it is but a fair inference, from the evidence, that the attack was made by appellant, and he struck appellee in the arm with the knife, when he, in turn, was struck with the club held by appellee.
The use of a knife by appellant was inexcusable. He was not attacked, but rather followed appellee into the street, and sought the encounter, with a knife in his hand.
We see nothing in the evidence that would justify the conclusion that appellant, when he made the assault, was acting in self-defense, or that the use of a knife was necessary to protect him from bodily harm.
Had appellant remained on his own premises and not followed appellee into the street, it is not at all probable that any difficulty would have occurred.
At all events there was a conflict in the evidence, and it was for the jury to settle it, and, under the uniform decisions of this court, the verdict must be regarded as final.
The court, at the request of appellee, gave to the jury seven instructions, all of which, except the first, are claimed to be erroneous.
The main objection taken to the second instruction is, that it excludes from the consideration of the jury previous provocation, or acts of misconduct of appellee that occurred a day or two prior to the difficulty.
The evidence does show that, three days before the assault, the parties had a quarrel, and appellee struck appellant a light blow in the mouth. That could not, however, be regarded as any justification of the assault. In Ogden v. Claycomb, 52 Ill. 366, which was an action to recover for an assault and battery, and a question similar to the one here presented arose, it is said: “If the defendant strikes a blow not necessary to his defense, or after all danger is passed, or by way of revenge, he is guilty of an assault and battery.”
The third instruction tells the jury, among other things, that the plaintiff, in order to recover, should have been guilty of no provocation. This is error. It is wholly immaterial what language he may have used, so far as the right to maintain an action is concerned, and even if he went beyond words, and committed a technical assault, the acts of the defendant must still be limited to a reasonable self-defense. The case cited seems to settle the point raised on the instruction. We perceive no substantial objection to the third instruction.
The fourth is as follows:
“The court instructs...
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