Murphy v. Dart

42 How. Pr. 31

• Court: New York Supreme Court
• Decided: June 15, 1871
• Status: Published

Opinion

Mullin, P. J.

The evidence on the part of the defendant justifies the finding that the injuries inflicted on the plaintiff were inflicted in self defense after the plaintiff had struck him two or three times. It was for'the referee to determine whether there was an excess of force on the part of the defendant, and he having fomid that there was not, we must assume there was none.

I have some doubt whether the evidence of the defendant as to previous difficulties between him and the plaintiff, was admissible. Evidence was given of threats on the part of the plaintiff that he would beat the defendant whenever the latter would furnish him an excuse.

This, in connection with the proof of previous difficulties between the parties, would aid the referee in arriving at a conclusion as to who was probably the aggressor on the occasion of the affray. In this view, and for this purpose, I think the evidence was admissible.

The witness Johnson had the right to explain why he was arrested, for the crime which he admitted was imputed to him, and if this explanation involved conversations with third persons, he-was entitled to have such conversations received" in evidence.

The judgment of the referee is right, and must be affirmed. ■ • •