Reichers v. Dammeier

• Decision Date: 26 January 1910
• Docket Number: No. 6,676.,6,676.
• Citation: 45 Ind.App. 208,90 N.E. 644
• Parties: REICHERS v. DAMMEIER.
• Court: Indiana Appellate Court

45 Ind.App. 208

90 N.E. 644

REICHERS

v.DAMMEIER.

No. 6,676.

Appellate Court of Indiana, Division No. 2.

Jan. 26, 1910.

Appeal from Circuit Court, Porter County; W. C. McMahan, Judge.

Action by Ernest H. Dammeier against Fred D. Reichers. Judgment for plaintiff, and defendant appeals. Affirmed.

Plaintiff's sixth instruction was as follows: “The danger which will justify a defendant in resorting to self-defense need not be real, but only such as would lead a reasonably prudent man to believe in its reality. A defendant is permitted to use reasonable judgment in estimating the nature and imminence of the danger and the choice of the means of avoiding it, and the amount of force to be used in repelling it. The excitement and confusion of the surrounding circumstances, if any, may be considered, and the defendant is not to be held to the same deliberate judgment in estimating the danger or the choice of means of repelling it as is possible to persons unaffected by excitement or danger in subsequently contemplating the situation.”

J. K. Stinson, E. D. Crumpacker, and Frank Meeker, for appellant. N. L. Agnew, Milo M. Bruce, and Otto J. Bruce, for appellee.

RABB, P. J.

This action was brought by the appellee against the appellant to recover damages for an alleged assault and battery committed by the appellant on the appellee. The case was put at issue, and two jury trials had; the first resulting in a disagreement of the jury, and the last in a verdict favorable to the appellee. Appellant's motion for a new trial was overruled, and judgment rendered upon the verdict.

The errors relied upon for a reversal are the action of the court below in permitting appellee to read in evidence the testimony of a witness, given at the former trial of the cause, and taken down by the official stenographer, the witness being absent at the trial, and a nonresident of the state, and the giving by the court of instructions numbered 6, 9, and 12 to the jury.

The question as to the admissibility in evidence of the testimony given upon a former trial by an absent witness, who is a nonresident of the state, is an open question in this state, never having been authoritatively presented to or decided by the Supreme or Appellate Courts of this state. Wabash Railway Co. v. Miller, 158 Ind. 174, 61 N. E. 1005;Wabash Railway Co. v. Miller, 27 Ind. App. 186, 60 N. E. 1127;Schearer v. Harber, 36 Ind. 536.

It is appellant's contention that at common law it was not competent to give in evidence the testimony of a witness taken at a former trial, unless the witness was dead, insane, or beyond seas, and that the term “beyond seas” means outside of the national realm, and does not apply to a witness whose residence is known, and is in some other state of the Union. It is argued that the statute makes ample provision for taking the depositions of nonresident witnesses, and that therefore the rule invoked to admit this testimony is not applicable, and some authorities are cited to support this contention. There is a conflict in the decisions of the courts of last resort, as...