Sellers v. Zimmerman

18 Md. 255, 1862 Md. LEXIS 10

Opinion

Cochran, J.,

delivered the opinion of this court.

The refusal of the court below to permit the appellant to offer evidence after the case was closed and argued before the jury, affords no reason for a reversal of this judgment, as that refusal was fully justified by the rule of the court, presented in the bill of exceptions. We think, however, that the prayer, asking an instruction on the pleadings and evidence, ought not to have been granted. As it was designed to obtain a common and like advantage for the appellees, they will not, in view of its purpose, be considered as standing on different defences in the pleadings, nor as wrong-doers in different degrees, upon the evidence. The instruction was asked upon the assumption in the prayer, that there was no evidence that the assault alleged was committed on the day laid in the declaration, and, upon that assumption, they must be considered as having committed themselves, on like issues, and evidence to the law involved in the prayer.

(Decided February 26th, 1862.)

“ In looking to the proceedings, we find that the appellees have taken like defences upon .their pleas of not guilty, upon which issues were joined, and we think that the prayer, as it refers to the pleadings, should be considered as involving these issues only, especially as no formal issue was joined on the appellants replication, de injuria, to the plea of son assault demesne, pleaded by Henry Zimmerman. It is well settled, that in an issue joined on a plea of not guilty in an action like this, proof of the commission of a trespass on the day laid in the declaration, is not material, and that evidence of its commission on any day before suit brought, is sufficient. As the granting of the prayer was erroneous for this reason, we must reverse the judgment.

Judgment reversed, and

procedendo awarded.