Updegrove v. Zimmerman

• Decision Date: 01 January 1852
• Citation: 13 Pa. 619
• Parties: Updegrove versus Zimmerman.
• Court: Pennsylvania Supreme Court

13 Pa. 619

Updegrove versus Zimmerman.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Dauphin county.

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The case was argued by Fisher, for plaintiff in error; and by McAllister and Hamilton Alricks, for defendant in error.

The opinion of the Court was delivered by COULTER, J.

This case is voluminous in the number of points and the argument; but it is made so by the ingenuity and ability of the counsel for the plaintiff in error, and not by the intrinsic merits or law of the case. It does not require an extended notice from the court.

It is true, that circumstances which do not amount to a justification, or, which is the same thing, which do not lead to the door of proof, and from which a jury could not infer or presume guilt of the offence, may be given in evidence on the plea of not guilty, in mitigation of damages; on the ground that they weaken the proof of malice. But when such circumstances lead directly towards the proof of guilt, they cannot be given in evidence on that plea. If they could, the plaintiff might be stabbed in the dark, and wounded without warning. Because no man is expected to come with evidence at his fingers' ends to justify his whole life, unless he is put upon his guard by the nature of the plea. Not guilty puts plaintiff on proof of speaking the words, and assumes the ground that defendant did not commit the offence with which he is charged. But the plea of justification, if put into form, admits the speaking of the words charged in the narr. as therein alleged, and avers that the defendant was justified in speaking them because they were true. And in that category the plaintiff is put upon a defence of his life as to the acts charged. But the court cannot judge of the effect of evidence, but only of its tendency. When, therefore, it tends directly to prove guilt, the court cannot say that a jury would not believe it. The evidence offered here did directly conduce to the proof of guilt, and was properly rejected on the plea of not guilty. The defendant then pleaded a justification, and gave his evidence; and the complaint of the plaintiff in error is that the court instructed the jury that it did not amount to a justification, although they had before said that it tended to prove a justification.

But there is nothing wrong in all this. It only proves that evidence does not always hit the mark which counsel set up for it. The evidence was not so strong when it was delivered, as ...