Reese v. Barbee

Mississippi Supreme Court

Reese v. Barbee

61 Miss. 181

DecidedOctober 15, 1883

StatusPublished

This text of 61 Miss. 181 (Reese v. Barbee) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Reese v. Barbee, 61 Miss. 181 (Mich. 1883).

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Opinion

Chalmers, J.,

delivered the opinion of the court.

This case was heretofore before us and will be found with the facts briefly stated in 60 Miss. 906. The case has here been tried the second time in the court below, and has resulted in a verdict of nine hundred and seventy-six dollars for the plaintiff, from which the defendant appeals. The only assignment of error presented is to the action of the court below in instructing the jury that drunkenness of the defendant at the time of the commission of the assault was no defense against the action for. damages, but was “ an element aggravating said assault.” The addition of the words, “an [184]*184element aggravating said assault/’ it is insisted, was erroneous, since as the defendant would have been fully liable for his acts if sober, he could not be more so if drunk. The language of the instruction is to be found in many text-books, but their use in criminal cases is censured, and we think properly so, in McIntyre v. People, 38 Ill. 514, and other cases. Larceny is'larceny, and manslaughter is manslaughter, whether committed by a sober or drunken man, and the one offense cannot be raised to robbery nor the other to murder by the fact of the intoxication of the guilty person. We have found no case adjudicating the point in a civil case except as to actions of slander, as to which the authorities differ (see Townshend on Slander and Libel, § 249), but we think the instruction was certainly correct under the facts of this case. Here a pregnant woman was advanced upon by a drunken man, pointing a drawn pistol at her and threatening to shoot.' The terror into which she was thereby thrown was undoubtedly increased, and the disastrous consequences which thereupon ensued perhaps renderd more inevitable, by reason of the intoxicated condition of her assailant, since that condition of itself was well calculated to increase her terror. It was fitting, therefore, that the jury should be told that the intoxication was an aggravation of the tort.

Judgment affirmed.

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Chalmers, J.,

delivered the opinion of the court.

This case was heretofore before us and will be found with the facts briefly stated in 60 Miss. 906. The case has here been tried the second time in the court below, and has resulted in a verdict of nine hundred and seventy-six dollars for the plaintiff, from which the defendant appeals. The only assignment of error presented is to the action of the court below in instructing the jury that drunkenness of the defendant at the time of the commission of the assault was no defense against the action for. damages, but was “ an element aggravating said assault.” The addition of the words, “an [184]*184element aggravating said assault/’ it is insisted, was erroneous, since as the defendant would have been fully liable for his acts if sober, he could not be more so if drunk. The language of the instruction is to be found in many text-books, but their use in criminal cases is censured, and we think properly so, in McIntyre v. People, 38 Ill. 514, and other cases. Larceny is'larceny, and manslaughter is manslaughter, whether committed by a sober or drunken man, and the one offense cannot be raised to robbery nor the other to murder by the fact of the intoxication of the guilty person. We have found no case adjudicating the point in a civil case except as to actions of slander, as to which the authorities differ (see Townshend on Slander and Libel, § 249), but we think the instruction was certainly correct under the facts of this case. Here a pregnant woman was advanced upon by a drunken man, pointing a drawn pistol at her and threatening to shoot.' The terror into which she was thereby thrown was undoubtedly increased, and the disastrous consequences which thereupon ensued perhaps renderd more inevitable, by reason of the intoxicated condition of her assailant, since that condition of itself was well calculated to increase her terror. It was fitting, therefore, that the jury should be told that the intoxication was an aggravation of the tort.

Judgment affirmed.

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61 Miss. 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reese-v-barbee-miss-1883.

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