Miller v. Balthasser

• Decision Date: 30 September 1875
• Citation: 78 Ill. 302,1875 WL 8477
• Parties: ROBERT M. MILLERv.AMANDA BALTHASSER.
• Court: Illinois Supreme Court

78 Ill. 302

1875 WL 8477 (Ill.)

ROBERT M. MILLER

v.AMANDA BALTHASSER.

Supreme Court of Illinois.

September Term, 1875.

APPEAL from the Circuit Court of Bureau county; the Hon. EDWIN S. LELAND, Judge, presiding. Messrs. ECKLES & KYLE, for the appellant.

Mr. JOHN SCOTT, Mr. J. J. HERRON, and Mr. MILO KENDALL, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of trespass, brought by appellee against appellant, to recover damages for an alleged assault upon her by appellant.

A trial of the cause was had before a jury, which resulted in a judgment in favor of appellee of $1000, to reverse which appellant brings the record here by appeal.

Two grounds are relied upon by the counsel of appellant to secure a reversal of the judgment: first, that the court erred in giving appellee's first, fifth and seventh instructions; second, that the verdict is contrary to the evidence, and that it was error to overrule the motion of appellant for a new trial.

The questions raised will be considered in the order presented.

The first of appellee's instructions was as follows:

“If the jury believe, from the evidence, that the defendant is guilty of the trespasses, or either of them, as charged in the plaintiff's declaration, then the jury will find for the plaintiff, and assess her damages at a sum not exceeding $5000.”

An issue of fact was presented by the pleadings, and it was not improper for the court to give an instruction involving the issue made by the pleadings. Low v. Getty, 18 Ill. 493.

If the trespass charged in the declaration was not well pleaded, it was the duty of the defendant to have demurred. The issue was, however, properly formed. The instruction was predicated upon that issue, and the evidence offered to sustain it, and, so far as we can perceive, it could not mislead the jury or prejudice the rights of the defendant. The fifth instruction was in the following language:

“If the jury believe, from the evidence, that the defendant assaulted the plaintiff, as testified to by her, by laying his hands on her, accompanied with the threat that he would kill her, or words, in substance, that if she did not consent to sexual intercourse with defendant, this in itself will warrant the jury in finding the defendant guilty, although the jury may further believe, from the evidence, that she ultimately freely assented to such intercourse. If, however, the jury believe that such ultimate assent was not freely given, but was yielded by the plaintiff only as a consequence of the preceding violence or force, then such sexual intercourse should be regarded by the jury as a part of the assault, and a ground for exemplary damages--that is, such as will compensate the plaintiff for any wrong to her, and to punish the defendant, and to furnish an example to deter others from like practices.”

The objection urged to this instruction is, that it ignores all the evidence in the case except that of the plaintiff, and by the last clause of the instruction the belief of the jury was not confined to the evidence before them.

Upon an examination of the evidence introduced upon the trial, it appears that the plaintiff was the only witness who testified to the assault made upon her by the defendant. The defendant, in his evidence, expressly denied the assault. It was, therefore, for the jury to determine which of the two witnesses told the truth.

The verdict necessarily depended upon the degree of credit given by the jury to one or the other of these witnesses.

If the jury believed the testimony of the plaintiff, the verdict would necessarily be for her. If, on the other hand,...