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State v. Smith.

"certain stone" are given as examples of the description of the instruments by which death was caused. See Wharton's Precedents at pages 51 and 71. In State v. Owen, 1 Mur., 452, an indictment describing the instrument of death as "a stick of no value" was not noticed as an objection either by the counsel or the court. The case is of greater authority, because the counsel for the prisoner, who was a very able criminal lawyer, rested his motion for an arrest of the judgment upon a point of great doubt, and one which has been since settled against him by statute. Both the counsel and the court would have been relieved from their difficulty had the description of the stick been deemed insufficient.

The motion in arrest, as well as that for a new trial, must be overruled, and, as we discover no error in the record, it must be so certified as the law directs.

PER CURIAM.

'There is no error.

Johnston v. Crawford.

THOMAS JOHNSTON v. WILLIAM H. CRAWFORD and JAMES CRAWFORD.

In an action of Trespass, for a violent assault and battery, evidence that two weeks before, one of the defendants, who were brothers, had been beaten by the plaintiff, is not competent; nor is it competent to show that several hours before, on the same day, the plaintiff had threatened to beat one of the defendants, and that such threat had been communicated to the defendant.

In estimating damages in such actions, the jury can take no notice of a sum of money paid into court for the use of the plaintiff at a former term upon leave granted, the plaintiff having refused to receive it.

A record of a conviction, and of the fine and costs incurred under an indictment for an assault and battery, is admissible in mitigation of punitory damages in a civil action for the offense.

(Barry v. Ingles, 2 Hay., 102, S. C. Tay., 121; Goodbread v. Ledbetter, 1 Dev. & Bat., 12, and Governor v. Sutton, 4 Dev. & Bat., 484, cited and approved.)

TRESPASS, for an assault and battery, tried before Gilliam, J., at Spring Term, 1867, of the Superior Court of Rowan.

Upon an afternoon in June, 1862, the plaintiff, while pass. ing over a bridge, in the town of Salisbury, upon which the defendants, who are brothers, were standing, was assaulted by them with stones and a club, and badly bruised and injured about the head and shoulders. He did not speak to or look towards the defendants as he passed, and the stones were thrown after he had advanced a few steps beyond them. He was struck upon the head by two stones, and while staggering from the effects, the defendant William advanced and gave him several blows with a club, by which he was felled to the earth, senseless. The plaintiff was not aware of the intended assault upon him until he was struck with one of the stones. He was for several weeks under medical treatment for his injuries.

The defendants offered to prove, in mitigation of damages, that about two weeks before the plaintiff was thus assaulted and beaten, he had committed an assault and battery on the

Johnston v. Crawford.

defendant William; and also that, on the forenoon of the same day, the plaintiff told one Bradshaw that he intended to thrash the defendant William before he the defendant went to Virginia with his Company, and that this threat was communicated to the defendant William. This evidence was ruled out, and defendants excepted.

The defendants then offered in evidence, for the mitigation of damages, a record of the Superior Court of Rowan, at Spring Term, 1864, showing a conviction of the defendants on an indictment for this assault and battery, and of the fine and costs imposed and paid, and also an entry on the docket made at the same term, showing permission granted to the defendants to pay into court, for the use of the plaintiff, $1,000 in Confederate Treasury Notes, and the costs of the suit up to that time. This the plaintiff had declined to receive.

The court charged the jury, that, in estimating exemplary damages, (if they saw proper to give any) they ought to take into consideration the fines and costs paid by the defendants in the indictment, but that the Confederate money paid into court, which the plaintiff had always declined to receive, they were not to consider, in estimating damages, whether actual or exemplary.

Verdict for plaintiff; rule for new trial; rule discharged, and appeal by defendants.

J. H. Wilson for the appellant.

Boyden & Bailey, contra.

1. Evidence of what passed two weeks before was incompetent. 2 Greenl. Ev., s. 268, Sedg. Dam., 555; State v. Gibson, 10 Ire., 214.

2. Evidence of the threat in the forenoon was incompetent. 2 Greenl. Ev., s. 93.

3. The fine and costs in the indictment are to be consid

Johnston v. Crawford.

ered only as regards the punitory portion of the damages. Smithwick v. Ward, 7 Jon., 64.

4. The payment of Confederate money into court was coram non judice. The order allowing it is of the first impression. Tender of amends is not allowable in such an action. Compare Rev. Code, c. 31, s. 79, with Stat. of Jas. I., on which it is modelled. 3 Chit. Genl. Pr., 684.

See also Bacon Ab., title, "Tender, and bringing money into court, 8, in an action of trespass."

BATTLE, J. The testimony offered by the defendants to prove in mitigation of damages that about two weeks previous to the battery complained of, the plaintiff had assaulted and beaten the defendant William H. Crawford, was properly rejected. It is well settled that though a provocation, which is calculated to excite the passions, may be given in evidence for such a purpose, yet it must be a provocation so recent and immediate as to induce the presumption that the violence done was committed under the influence of the feelings and passions excited by it. Lee v. Woolsey, 19 John., 319; Sedgewick on Damages, 555; or, as was said in the case of Barry v. Ingles, 2 Hay., 102, S. C. Tay., 121, "Such things ought not to be considered as alleviating the offense of falling upon the plaintiff at a subsequent late period, after there was time for the passions to cool and the defendant's action to be guided by reflection." The true principle thus appears to be that an excessive assault and battery may be mitigated when it proceeds from the passion of anger justly excited by an immediate provocation, but not when it is prompted by malice or revenge. The same principle has been applied in an action of slander, to prevent the defendant from proving in mitigation of damages that, previous to the speaking of the words, the plaintiff was in the habit of vilifying and abusing the defendant. Goodbread v. Ledbetter, 1 Dev. & Bat., 12. And we think it ap

Johnston v. Crawford.

plies also to the testimony which was offered by the defendants in the present case to prove that on the forenoon of the day on which the battery was committed the plaintiff said that he intended "to thrash" the defendant William. That threat, though communicated to the defendant during the forenoon of the same day, could not have moved a man to commit so deliberate and cruel an assault and battery, unless actuated by a feeling of deadly revenge. Had the passion of anger only been excited, the interval of five or six hours between the threat and the violence, afforded ample time for the passions to subside and reason to resume her sway.

The defendants had the benefit of the Judge's charge in favor of allowing them, in mitigation of the claim for punitory damages, the amount of the fine and costs which they had paid upon the indictment; but there was not the slightest foundation for allowing the sum which they paid into court in the civil suit. The rule in relation to the payment of money into court does not apply to an action of tort, unless given by statute. See the authorities referred to by the plaintiff's counsel, 3 Chit. Gen. Prac., 68, and 9 Bacon Ab., "Tender and bringing money into court, 8, in action of Trespass," p. 558. In this State it was said, in Governor v. Sutton, 4 Dev. & Bat., 484, that the general rule is, that money may be paid into court when the action is brought for a sum certain, or capable of being ascertained by computation, but not in an action for general damages. For this is cited Kallett v. East India Company, 2 Burr, 1120; Salt v. Salt, 8 T. R., 47; Birks v. Trippet, 1 Wms'. Saund., 33, nn. We have no statute to authorize it in an action of trespass vi et armis for an assault and battery; and it was, therefore, properly rejected in the Superior Court.

There is no error in the record, and the judgment must be affirmed.

PER CURIAM.

Judgment affirmed.

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