Keller v. Taylor

7 Del. 20

• Court: Superior Court of Delaware
• Decided: July 5, 1858
• Status: Published

Opinion

The Court-,

rejected the evidence, and remarked that it was not the record of a suit between the same parties, and was, therefore, not admissible. The record offered was of a criminal prosecution by the State against the defendant for the public wrong and breach of the peace involved, as a public offence; but this was a civil action by the plaintiff against the defendant, to recover damages for the personal injury sustained by him. In a criminal prosecution for assault and battery, it was not unusual for the Court on conviction, when about to fix and impose the fine for the public offence, to inquire if any civil action had been brought for the personal injury by the party assaulted, with a view to moderate the fine, if such was the case. But this was a consideration merely addressed to the disrcetion of the Court, for the purpose stated. But the fact of its being allowed to mitigate the fine in the criminal prosecution, was of itself a good reason why the latter should not be allowed to mitigate the damages in the civil action for the personal injury.