Jamison v. Moseley

Citations

• 69 Miss. 478

Syllabus

<p>1. Assault and Battery. Evidence. Order of admission. Practice</p> <p>While the defendant in an action for assault and battery, who claims justification has the burden of proof as to this, the plaintiff, after proof merely of admission as to the fact of the assault and his damages, cannot, by withholding all evidence as to the circumstances of the injury, force the defendant first to disclose the circumstances. He cannot thus gain an advantage by holding his evidence in reserve to rebut the defense rather than establish his own case.</p> <p>2. Same. Instruction. ' Self-defense.</p> <p>In an action for assault by shooting, there was a verbal altercation between the parties, and plaintiff’s evidence tended to show that defendant made a movement as if to draw a weapon, whereupon, he attempted to draw, and the defendant drew first, and shot him. Defendant’s evidence tended to show that he had merely changed the position of his hand, not intending to draw a weapon, but, seeing plaintiff draw a pistol, he drew and fired simultaneously with, or just after, the plaintiff. Held, error to instruct that if the jury believed the “defendant used language to the plaintiff that was irritating, and thereupon the plaintiff retorted in like language, and then the defendant demanded to know to whom plaintiff-referred, making a movement at the time as if to draw a pistol, apparently aggressive, and then plaintiff made an effort to defend-himself, and thereupon was shot by the defendant, they will find for the plaintiff,” etc. This, while justifying- the plaintiff in acting on appearances, denied defendant the right to do so.</p> <p>3. Same. Self-defense. Anticipating attach.</p> <p>If, in such case, the parties used irritating language towards each other, and the defendant made a movement, apparently aggressive, as if to draw a pistol, though, in fact, not intending to do so or to assault the plaintiff, and plaintiff, misinterpreting this act, thought it necessary to defend himself,