Commonwealth v. Ribert

144 Pa. 413

Opinion

Opinion,

Me. Justice Mitchell :

The bill of exceptions is extremely imperfect, no notes of the testimony apparently having been taken except those by the judge, which were merely for his own use, and much abbreviated and incomplete.* The first, fourth, and sixth assignments of error must therefore be disregarded, as the record affords us no way of determining whether or not they are well founded.

The second and third assignments are to the refusal to allow the prisoner to show that by special contract with his employers he was entitled to the exclusive possession of the room where the assault took place, and particularly that the prosecutor, Osborne, was not to enter it. Such an arrangement was unusual, perhaps improbable, but the appellant had a right to give it in evidence, and ask the.jury to believe it; and, if they did so, it would put the occurrence in a different light, perhaps even to the extent of justifying the prisoner in attempting to eject Osborne forcibly. The question for the jury then would be, not whether this was a wanton and unprovoked attack, but whether more, violence was used than the occasion justified. The evidence, therefore, was material to the appellant’s case, and should have been admitted.

Judgment reversed, and venire de novo awarded.