Seymour v. Bailey , 76 Ga. 338 ( 1886 )

Jackson, Chief Justice.

1. The only error assigned worthy of consideration is,, that the court erred in not giving the plaintiff in error the right to open and conclude, it being .alleged that he had filed pleas of justification to the action of trespass for assault and battery. ' He had the right to open and conclude if he did file a proper plea of justification, and the question on which his right turns; is, are the pleas filed legal pleas of justification ? To make them such, they must admit the battery as alleged, or, to use the téchnical words, “ in manner and form” as averred in the declaration. The allegation in the declaration is, that with an ax-helve and with his first he gave and struck petitioner a great many violent blows on and about divers parts of his body, and particularly his head, and then and there shook, pulled and knocked him down upon the ground, and there struck him a great many other strokes -and blows, by which he was greatly hurt, bruised and wounded,' and was thereby laid up for twelve weeks, unable to attend to his ordinary business, etc. ,- . %

The plea of not guilty was filed to this declaration, and then follows the following, in substance, as a plea of justification : that the,plain tiff, made an assault upon him and would have beaten and- illtreated him, if he had not immediatly defended himself against said plaintiff, and therefore did a little beat, illtreat and wound the plaintiff necessarily and unavoidably, and plaintiff by his assault brought it on himself. This plea does not admit the allegations of plaintiff, but only a little bit of the beating, and justifies that. So it is not a- good plea of justification. 1 Chitty, 500-1; 3 Ib., 1067; 2 Greenleaf, 95; Ocean Steamship Co. vs. Williams, 69 Ga., 251; Barnes vs. Augusta Factory, 72 Id., 217; Phelps vs. Thurman, 74 Ga., 837, Code, §3051.

The plea was then amended, to the effect that he struck one blow with the ax-handle, but was authorized to do so from plaintiff’s attack, who attacked him with a stick in his store, accompanied with a grown son and á negro man," and after boisterous and threatening conduct, struck nim with the stick and was trying to strike him again, when he himself struck to prevent plaintiff from striking him, and was lawfully authorized to do so, and for further plea says he is not guilty.

We do not think that this amendment mends the matr ter. It only admits the one blow with the ax-helve, and admits in part, and excuses that part still.

The plaintiff was thus forced 'still to prove his case. He held the affirmative of every fact alleged, except the fraction admitted, and would have got nothing'in lieu of his right to open and conclude, had, it been given to the defendant.

2. Then defendant, this plea being adjudged insufficient, proposed to fix the plea any way the court said. Whereupon the judge said he did not see how a plea of justification could lie to these facts, and said none could be filed, and error is assigned on this.

It is not the duty of the court to instruct counsel how to plead, and no assignment of error will lie to the ground on which the judge refuses to do so.-

3. In a civil case the plaintiff is not bound to prove his case beyond a reasonable doubt, and there was no error in refusing the request to charge to that effect.

Judgment affirmed.