McQuiggan v. Ladd

64 A. 503, 79 Vt. 90, 1906 Vt. LEXIS 107

• Court: Supreme Court of Vermont
• Decided: July 11, 1906
• Status: Published

Opinion

Miles, J.

This is an action for an assault and battery, against John Eadd, Daniel Eadd and Eugene Spicer. John Eadd and Eugene Spicer pleaded the general issue. Daniel Eadd pleaded the general issue and also son assault demesne, to which last plea the plaintiff replied de injuria.

The case was tried by jury and comes to this Court on exceptions to the admission of certain evidence, and to the charge of the court upon the matter of self-defence.

It was claimed on the part of the defendants and their evidence tended to show that what was done on the occasion complained of, was done in self-defence, and that no more force was used by Daniel Eadd, the only defendant who used any actual force upon the plaintiff, than he reasonably believed was necessary under all the circumstances.

.The defendants further claimed and their evidence tended to prove that the plaintiff was under the influence of intoxicating liquor at the time of the alleged assault and battery, which Daniel then detected; that Daniel knew at that time, by reputation and observation, that when the plaintiff was under the influence of intoxicating liquor he was a quarrelsome and dangerous man.

The evidence of the plaintiff, by his wife, Mrs. McQuiggan, tended to show that plaintiff was 'not under the influence of intoxicating liquor at the time of the alleged assault and battery upon him and never used the same, and that she never went to> one Archie McCormick’s house to have Mr. McCormick come to their house to take care of the plaintiff, because he was under the' influence of intoxicating liquor, and was ugly, as the defendants claimed she did.

Under the pleadings and the claims of the parties, the defendants were permitted to show by McCormick, Patrick Brown and Mrs. Walter Dadd, subject to plaintiff’s exception, that they had seen the plaintiff, on particular occasions previous to the assault and battery, under the influence of intoxicating liquor, and as to his personal appearance, disposition and actions, as to being cross and ugly, on such occasions.

This evidence was admitted upon the defendant’s offer to show that these facts were brought to the knowledge of the defendant, Daniel Ladd, before the date of the alleged assault and battery; and such facts were brought to his knowledge, except two instances of drunkenness and manifestation of ugly disposition.on those occasions, one testified to- by Mrs. Ladd and the other by Archie McCormick.

The plaintiff further claimed and his evidence tended to prove that the defendant, Daniel Ladd, committed an unprovoked assault and battery upon the plaintiff and thereby seriously injured him.

The defendants further claimed and their evidence tended to prove, that the plaintiff committed the first assault upon Daniel, and that what Daniel did to the plaintiff on that occasion was done in the necessary defence of himself.

The pleadings in this case cast upon the defendants the burden of making it affirmatively appear, that Daniel used no more force upon the plaintiff than reasonably appeared to him, under all the circumstances, to be necessary for his own personal safety. Harrison v. Harrison, 43 Vt. 417-424, and cases therein cited. As bearing upon the reasonableness of the force used by Daniel in repelling the claimed assault of the plaintiff, the defendants claimed and gave evidence tending to prove that Daniel knew by observation and reputation at the time of the assault, that the plaintiff, when under the influence of intoxicating liquor, was a quarrelsome and dangerous man, and that on the occasion in question the plaintiff was under the influence of intoxicating liquor which was then detected by Daniel, and that, in consequence thereof, and having in mind what he knew and had heard of the plaintiff’s character under such circumstances, he was afraid of him. It therefore became important for the defendant to show that the plaintiff was under the influence of intoxicating liquor at the time of the alleged assault, and that when under the influence of intoxicating liquor he was a quarrelsome and dangerous man, or was reputed to be such, and that the defendant, Daniel Dadd, had knowledge of "such facts or report at the time of the alleged assault, and believed them to be true.

The plaintiff’s first exception is to the admission of the testimony of Mrs. Dadd, Brown and McCormick, wherein they testify that they had seen the plaintiff on different occasions under the influence of intoxicating liquor, at times previous to the assault in question, and that on those occasions he was cross and ugly, as stated above.

The plaintiff urges that this was error, because it was an attempt to prove character by specific instances, and he cites numerous authorities outside of this State in support of his contention, and two cases from this State, some of which support his contention and many of which do not. Among those cases which do not support his claim, are the two cases cited from our own State, and these cases illustrate the error into which the profession are liable to fall if distinctions are not carefully observed.

The word “character” has an objective as well as a subjective meaning which are quite distinct. As applied to man, objective character is his actual character; subjective character is such character as he possesses in the minds of others, and is the aggregate or abstract of other persons’ opinions of him. Powers v. Leach, 26 Vt. 270-278.

In cases of impeachment, where the question of character most frequently arises, the subjective character is the only one involved, for the law is settled, that to create impeachment one must have been so untruthful as to create a reputation in the community where he resides; and hence only general reputation is admissible to establish it; but, in a case like the one at bar, where the actions of a third person are to be affected by a knowledge of another’s character, not only may the subjective character be involved, but the objective may be as well; for the action of one, influenced by the character of another, is affected to the same extent by a belief in the truth of general report as it is by a knowledge of the fact, because in either case he believes he knows the fact, and it is that belief which is important. This principle is not new. It was sanctioned in Harrison v. Harrison, 43 Vt. 417-424, a case cited by the plaintiff. .The defendant there offered to prove that the plaintiff was reputed to be, and was in fact, a quarrelsome man with a violent and uncontrollable temper, known to the defendant at the time, which was excluded by the court, presumably upon an objection similar to the one raised in this case, and the Court reversed the decision and say: “So if the assailant is known to the assailed to be a practiced pugilist and a man of violence, the kind and degree of resistance must be measured, or at least modified, by the apparent danger with which the party is threatened.”

Again in State v. Lull, 48 Vt. 581, another case cited by the plaintiff, the respondent offered to show the violent character of one Kefoé, on an occasion before the alleged assault and battery, knowledge of which was brought to the defendant previous to the act complained of, but the court below excluded it on the ground that it was an attempt to prove character by showing specific instances. This Court reversed that decision and held that the evidence was admissible. Judge Pierpoint, in the opinion for the Court, speaks of its coming within the rule that it was proof of character and not particular acts of violence, and the plaintiff in -this suit construes that opinion to be a holding in accordance with his contention; but a careful examination of the case shows that the Court intended nothing of the kind. It could not have been proof of general reputation, for the offer was not to that extent, but was clearly an offer to prove character as observed by the witness himself and not character gathered from the aggregate or abstract reports of others. The Court simply meant, that it was proof of objective character and not of specific instances which went to make up general reputation, or subjective character. It certainly would not accord with the reason of any man to say, that it was admissible to show by a witness the characterization of a transaction, and not admissible to show to the jury the transaction characterized, that they might judge for themselves whether the act warranted the conclusions of the witness, or to say that a person could witness a transaction, and by characterizing it and stating that characterization to a third party, make that statement evidence, but could not testify to the fact himself.

The admissibility of evidence tending to show objective character or disposition is also sanctioned in State v. Meader, 47 Vt. 78-81, wherein the rule laid down in Harrison v. Harrison, supra, is approved. The defendant in that case offered to show, that the person claimed to have been assaulted was a quarrelsome, fractious man; which was excluded, because the offer was not accompanied by the further offer to show that the defendant had knowledge of that fact, at the time of the alleged assault; and this Court sustained the ruling of the court- below; but the opinion clearly indicates that' had the offer contained a statement of knowledge on the part of the defendant, thé evidence would have been admissible.

To the same effect is the holding in Knight v. Smyth, 57 Vt. 529. In that case, which was an action for an assault and battery, the Court held that it was admissible for the defendant to prove that the plaintiff was a domineering, turbulent and quarrelsome woman, and cite approvingly Harrison v. Harrison, supra; State v. Meader, supra, and State v. Lull, supra.

We are not unmindful of the fact that cases can be found outside of this State ..somewhat in conflict with the views above expressed.; but the admissibility of such evidence is so well settled in our own jurisdiction and upon such well grounded reasons, that we do not feel inclined to depart from former holdings of this Court; and we think that the tendency of the courts is to extend the rule governing the reception of specific instances in the proof of character, upon the idea expressed by Mr. Wigmore in Vol. I, 198, of his excellent work on evidence, wherein he says: “There is no substantial reason against it.”

From the foregoing conclusions, it follows, that it was admissible for the defendants to show what was observed as to the character of the plaintiff, as to being cross and ugly when under the influence of intoxicating liquor at a time previous to the alleged assault; and, in order to show that, it was necessary to show that he was under the influence of intoxicating liquor on those occasions; and, as the case tends to show that the defendant, Daniel, knew of those traits of character at the time of the alleged assault and battery, it was not necessary that every occasion observed, which went to make up and establish the existence of those traits of character, should be brought to the knowledge of the defendant in all their details. It was enough that he knew that such traits of character existed, communicated to him by the witnesses who testified respecting them or coming to him from other sources. The evidence objected to was for the jury to say whether such objective character existed as the defendant’s evidence tended to show.

The plaintiff’s first exception, therefore, was not well taken.

What has been said as to the first exception is equally true of the second. This testimony directly contradicted the plaintiff’s evidence, that he never drank intoxicating liquor, and, though the occasion to which the witness testified was several years previous to the date of the alleged assault, it tended to prove the plaintiff’s character in this respect at that time, from which the presumption arises that such character continued until the contrary is shown, or until the date of the alleged assault. The objection that it is too remote is not well taken, and the same was properly received.

What has been said as to the first exception may also be said as to the third exception. That evidence had a tendency to contradict the plaintiff’s claim, that he did not drink intoxicating liquor, and was not under its influence at the time of the assault and battery. There was no error in admitting this evidence.

The fourth exception of the plaintiff to the reception of the testimony of Mears, that A. B. Hutchins, a witness produced by the plaintiff, told him that he would do everything in his power to ruin Walter Ladd, father of defendants, John and Daniel Ladd, and of other testimony of Mears showing that witness, Hutchins, was hostile to Walter Ladd, presents a more serious question for consideration. This evidence was offered arid received to show a feeling toward the father of the defendants, John and Daniel, and if it was admissible at all, it was because it tended to lessen the force of Hutchins’ testimony as against the defendants. If it was admissible, then why are not the feelings of any witness as to the mother, the grandfathers and grandmothers, brothers and sisters, children and grandchildren, and so on ad infinitum, as evidence against the other party, broadening the issues out in this respect indefinitely? We have been cited to no authorities either for or against the admission of such evidence, and have been unable to find any. The absence of authority upon this point, while not decisive, has some bearing in determining a question, if it existed, that ought to have come before the court as frequently as thp question of feeling of the witness toward one of the parties.'

Upon reason and sound policy,-we are induced to hold, that the evidence is harmful. The ordinary jury would be liable to treat it the same as if the feeling existed between the witness and the party, and it was reversible error to receive it.

The fifth exception to the testimony of Frank Ladd, that the witness Flanders told him that Mrs. McQuiggan knew nothing and saw nothing of the affray in question, she having testified that she did see it, and the witness, Flanders, having testified to those matters different from what he told the witness, Ladd, was not well taken. For anything that appears in the exceptions, the evidence was properly received as impeaching the testimony of witness, Flanders.

The sixth exception was to the ruling of the court admitting John and Daniel Dadd to testify that, prior to the time of the assault and battery, they had been cautioned by their parents as to their conduct toward the plaintiff. This exception standing alone with no explanation of the grounds of the objection, can furnish no foundation upon which to base error. It may have been, that the evidence was offered in connection with other evidence, that, because of the dangerous character of the plaintiff, which the parents were then discussing, this caution was given, a presumption which may well be made in the absence of anything appearing to the contrary, to uphold the regularity of the action of the court below. If such caution was given in connection with such evidence, it would be admissible upon the question of the amount of force which .the defendant, Daniel, reasonably apprehended was necessary for his self-defence. In any view which may be taken of this evidence, it is not apparent to the Court how it could be harmful to the plaintiff.

What has already been said respecting' the first exception applies with equal force to the seventh exception. ‘That exception is not well taken.

The plaintiff’s offers of evidence, to which his eighth, ninth and tenth exceptions relate, were properly excluded. The evidence offered to which the eighth exception relates, was immaterial and the evidence offered which was excluded subject to the plaintiff’s ninth and tenth exceptions, was determined by the court trying the case, to be too remote, and that decision will not be disturbed by this Court. State v. Doherty, 72 Vt. 381; State v. Bean, 77 Vt. 384.

The plaintiff’s eleventh exception is to the exclusion of an offer to show 'the pecuniary condition of the plaintiff at the time and after the assault. The offer did not inform the court what was expected to be shown. It simply stated the subject-matter concerning which he offered to give evidence. Whether he expected to show himself rich or poor, the offer does not state. The offer was too general, and there was no error in excluding it.

The twelfth exception to the court’s overruling the plaintiff’s motion for a verdict against 'Daniel Ladd, made at the close of the defendant’s evidence, is not well taken. It was not taken at the close of all the evidence, and all the evidence in the case is not referred to in the bill of exceptions so as to bring that question of fact before this Court, from' which it can say whether there was any evidence supporting the defendant’s claim that the plaintiff made the first assault and that the defendant used no more force in his defence than was reasonably necessary; besides the exceptions do show that there was evidence tending to prove that defendant’s claims are true.

Exception thirteen is to the failure of the court to charge that the specific instances of intoxication testified to must have been known to defendant, Daniel, at the time of the affray. This exception is not well taken, and the reasons, are stated in what the Court say to exception one.

The plaintiff’s fourteenth exception is to the refusal of the court to charge as requested and to the charge as made upon that point. Without deciding whether there was or was not error in the court’s omission to charge in the language of the request, we hold that there was error in the charge as made. The error consisted in the charge respecting the amount of force that defendant, Daniel, was justified in using to protect himself. After the charge had been made and counsel had appeared at the bench and taken exceptions, the court addressed the jury as follows: — “Counsel have called my attention to a statement that I made in referring to the amount of force that Daniel was justified in using to protect himself. I thought I made it clear to you, that it is the amount of force which he honestly believed to be necessary under the circumstances, but, if I did not make that fact clear to you, I now instruct you, that that is the measure of force he was justified in using. His honest belief — his honest belief controls.”

*- No authorities have been brought to the attention of the Court wherein it has been held that the amount of force which one might use in self-defence depended upon honest belief and we think none can be found. The true rule, as we believe, is that the amount of force which one may justifiably use in - self-defence, is such as reasonably appears to him to be necessary under all the circumstances in the case, and whether he is justified in the particular occasion, depends upon whether the jury find that it reasonably appeared to him that it was necessary to use the force which he did use. To rest his justification upon the honest belief which he entertained at the time, without reference to anything else, would deprive the jury of all considerations, except the simple inquiry of whether the defendant acted honestly, and if they found he did so act, the justification wo'uld thereby be made out, notwithstanding that the defendant acted in the most absurd and cruel manner. The defendant in such a case would be the sole judge of the amount of force and violence which he might inflict upon one who had first assaulted him, notwithstanding that that assault may have been of the most trivial character.

The rule which we have adopted in this case has the sanction of all or nearly all the cases, not perhaps in the same language, but in substance the same. Foss v. Smith, 76 Vt. 113; Beard v. United States, 158 U. S. 550 ; May v. The State, 6 Tex. App. 191; Edwards v. Leavitt, 46 Vt. 126; Anderson v. United States, 170 U. S. 481; Addington v. United States, 165 U. S. 185.

As the result of our decision sends the case back to the county court for another trial, we have considered all the exceptions raised on the former trial, notwithstanding that the case could have been disposed of upon the fourteenth alone.

Judgment reversed and came remcmded.