Opinion
Fall Sessions, 1839.
CAPIAS trespass vi et armis and for an assault and battery. Narr. Pleas, not guilty, and son assault demesne.
This was an action for an aggravated assault and battery.
Ruth and Houston, for plaintiff.
Bates and Clayton, for defendant.
The defendant followed the plaintiff into the road with a declared intention of beating him; but it was doubtful on the proof which struck the first blow. One of the witnesses proved that he heard plaintiff admit, that he had to strike the defendant first. The Court charged the jury, that there being no conclusive proof of the commencement of the battle, they were to form an opinion from all the facts proved, as to which of the parties was the assailant. That if Clark made the first assault, which they defined to be "an attempt or offer, with force and violence, to do a corporal hurt to another; such conduct as might denote an intention coupled with a present ability, of using actual violence," Hazel had the right to strike, and was not bound to wait for a blow from another; and that he might even strike with a stick, if the fierceness of the assault made such a return necessary. That if the first assault was by Hazel, and the subsequent battery by Clark was disproportioned and unreasonable, the defendant would not be justified by such previous assault, but would be liable in this action for damages.
If the first blow was given by the defendant, or the first assault made by him, or the subsequent battery went beyond reasonable self defence, he was liable in damages, the amount of which was in the discretion of the jury.
Verdict for plaintiff.