Summary
holding to establish self-defense, a defendant must prove he was without fault in bringing on the difficulty, he reasonably believed the force was necessary because he was in imminent danger of suffering serious bodily harm or death, and he used every reasonable means to avoid the danger
Summary of this case from Allgire v. BlantonOpinion
12725
August 27, 1929.
Before BONHAM, J., Allendale, April, 1928. Affirmed.
Action by Vencil Shramek against J.J. Walker. Judgment for plaintiff, and defendant appeals.
The Judge's charge and exceptions were as follows:
JUDGE'S CHARGE"Mr. Foreman and gentlemen of the jury, the issues which you as jurors, and judges of the facts of this case are to determine are made by the pleadings in the case and the evidence. It is proper that I say to you, as I must say to every jury, that you are the sole judges of the facts of this case. The Court is not allowed, indeed it is prohibited, from discussing the facts with the jury, so jealous is the law of your prerogative as judges of the facts of the case that it is made reversible error, if the presiding Judge even intimates to the jury any opinion he may have of the force and effect of the evidence, that is absolutely and solely your province. It is the duty of the judge to give the law to the jury, and the duty of the jury to take the law as he gives it. I may not trespass upon your domain of the facts, and you may not invade my province of the law. Fortunately for the litigants in any case, if the presiding Judge commits error in declaring the law to the jury, and the remedy lies in an appeal to the Supreme Court which sit solely for the purpose of correcting errors of law.
"Now, in the case which you are now considering, the plaintiff sets forth the grounds which he contends entitle him to recover of the defendant. He alleges in his complaint that he and the defendant are citizens of your county. That on the 12th day of October, 1927, the plaintiff was in a store kept by the defendant, that the defendant without provocation assaulted him with an axe handle. I believe it is alleged in the complaint, yes, that he struck him on the left side of the head with an axe handle fracturing his skull, and so seriously injuring him that he suffered some pain, and continues to suffer great pain, that he was put to great expense, and unable to discharge the work which he was employed to do, and thereby lost, and his earning capacity is permanently impaired as he is informed and believes, that the assault upon him was wanton, willful and malicious, and he asks of the jury damages in the sum of fifty thousand for actual and punitive damages.
"Now, they answer, and by way of defense to that complaint the defendant alleges, and I am stating this matter — these allegations leaving off the legal phraseology, that this man was in his store, that the defendant ordered him to leave, that he did not leave, and that he undertook as he had the lawful right to do, he alleges, to eject him from the store, and when he approached him for that purpose, the defendant turned upon him, and threatened him as he believes with an assault, and that he struck him in self-defense, so that is his defense here, that the plaintiff in this action was a trespasser upon his premises, and that he struck him in self-defense.
"Now, those are the issues which you are to try. An assault is the offer to do violence to the person of another, in a rude and angry manner. The person offering the assault within striking distance of the other. A battery is the actual infliction of personal injury upon the body of another in a rude and angry manner.
"Now, it is alleged in the complaint, that the assault was done willfully, wantonly and maliciously. It is necessary, therefore, that I explain to you what the law means by malice. Ordinarily when you are conversing with one another, and you speak of one person entertaining malice toward another, you mean that he has a feeling of hostility toward him, perhaps a revenge toward him, or maybe he hates him, that is not the definition of malice in law. The legal definition of malice approved in this Statute is the willful and intentional doing of a wrong act without just cause or excuse.
"Now the law says, if a man strikes another and inflicts a battery upon another, and can show a lawful excuse for it, he is not liable.
"Now, it is also a principle of law that words are never a sufficient or lawful excuse for a battery, it does not matter how insulting or opprobrious the language may be, the law does not recognize that words are sufficient provocation to justify an assault.
"It is a principle of the parties in order that the plaintiff may recover in a case, he must prove by the evidence the material allegations of his complaint by the preponderance or the greater weight of the evidence. On the criminal side of the Court, the State is required to prove the allegations of its indictment beyond a reasonable doubt; that rule does not prevail in the Civil Court where we are now. The rule is, that he who asserts a thing must prove it by the preponderance or the greater weight of the evidence, which means, gentlemen, reduced to its last analysis, that part of the evidence which carries to your minds the conviction of its truth. It does not mean the number of witnesses sworn on the one side or the other of the action, you may believe one witness as against fifty witnesses, if that one witness convinces you that his testimony is true, I say, in its last analysis the preponderance or greater weight of the evidence, is that part of the evidence which carries to your minds the conviction of its truth. Now, by that measure of proof, the plaintiff must sustain the material allegations of his complaint to entitle him to recover.
"Now then, the defendant by his answer sets up two defenses. The first is, that the plaintiff was a trespasser upon his premises, and that he had the lawful right to eject him, and that he did not use more force than was reasonably necessary than for the purpose. The second defense is that he struck this man in self-defense.
"Now, those are affirmative defenses, and the defendant is required to sustain his affirmative defenses by the same measure of proof which applies to the plaintiff, that is to say, by the preponderance or the greater weight of it, which I have just explained to you.
"Now, then, as to the defense of trespasser, the principle of law is that a man has a right to eject a trespasser upon his premises. It is alleged in the complaint, and I believe conceded that the defendant in this action kept a store. It is a rule of law that if one keep a place where the public is specifically or impliedly invited to be, a place of enjoyment, a restaurant, a hotel, a store, any place where the public by reason of the very nature of the business, is either invited or impliedly invited, one is not a trespasser, if he goes there upon a lawful mission. If, however, one goes to a place of that character on a lawful mission, and he so conducts himself as to become offensive to the proprietor of that establishment, the proprietor has the right to eject. Now how must he eject him? He must proceed, first, by ordering him to leave the premises; if he declines to go, and does not go, he must first use gentle means, and lay his hands upon him gently, if he resents and refuses to go, the proprietor of the establishment may use whatever force is necessary to eject the trespasser; but he must not use more force than is necessary, reasonably necessary than for that purpose. So, then, you inquire here: Was the plaintiff a trespasser? If he conducted himself as to make it necessary, or desirous from the point of view of the proprietor of the establishment to eject him therefrom? If he did, did the defendant proceed legally and lawfully to eject him? Did he use more force than was necessary? Those are questions of fact you are to determine in the consideration of that defense.
"Now the defendant sets up as a second defense, that he struck in defense of his person. That the plaintiff after he had been ordered to leave the premises, and had started to leave turned, and his conduct was such as to lead the defendant to believe that the plaintiff was about to assault him and do him serious bodily harm, or perhaps take his life, and that he, therefore, struck in defense of his person, or in defense of his life. As I said, that is an affirmative defense which the defendant must sustain by the preponderance of the evidence. The law recognizes that one has a right to protect himself from an assault, and has a right to protect his person, and has a right to protect his life. It is a lawful defense, but the law places certain limitations upon him who sets up the plea of self-defense. The law says you must sustain your plea in certain particulars by the preponderance of the evidence. To begin with, he who sets up the plea of self-defense must show to you that he was without fault in bringing on the difficulty. The plea of self-defense is known as the plea of necessity. He who pleads it practically says, yes, I did strike him, but I did it because it was necessary to protect myself from serious bodily harm or death. That is the first element which must be established by one who sets up a plea of self-defense, that he was without fault in bringing on the difficulty. The law does not permit one to provoke his adversary to assault him, and under the over of the assault to strike or kill him, because that would be a violation of the fundamental principle — violation of the principles of the law, and that there would have been no necessity, unless he himself had provoked it, therefore, the law says, he who pleads self-defense must show that he was without fault in bringing on the difficult. In the second place, he must show that at the time he struck the blow he honestly believed that he was in imminent danger, in imminent danger of suffering serious bodily harm or death at the hands of his adversary. He must show that he honestly believed, and then, he must go further than that. The law does not permit you to be the sole judge of the necessity of the danger. He must show to you by that same measure of proof, the preponderance of the evidence that a man of ordinary coolness, and courage and firmness situated as he was would have come to the conclusion that he was in danger of sufficient serious bodily harm, or death at the hands of his adversary. Gentlemen, the standard fixed by the law is not that of a man of the very highest degree of courage, nor is it that of a weakling one lacking in courage. The standard is that of a man of ordinary coolness, and firmness and courage. Would such a man in the circumstances surrounding the defendant at the time have come to the conclusion that he was in danger of suffering serious bodily harm at the hands of his adversary? and you are to determine from this. It is a fourth element of the plea of self-defense. That before one strikes he must use every reasonable means to avoid striking or avoiding the difficulty, if he can do so, ordinarily he must retreat; but there are two limitations to that. He is not required to retreat, if by retreating he increases his danger. Where one is, who is on his own premises and assaulted by another is not required to retreat, being on his own premises he has the right to stand his ground and resent the assault.
"Now then, gentlemen, there are certain requests of the plaintiff which I have practically covered.
"Mr. Boulware: Those are the defendant's requests, and you have covered ours.
"The Court: You heard counsel read the requests to me at the beginning of his argument, and heard my statement that they were in behalf of the plaintiff. I beg your pardon.
"Mr. Boulware: In behalf of the defendant.
"The Court: Yes, sir.
"Now, gentlemen, those in my judgment are the principles of law which pertain to this case, and I shall not descant further upon them. My purpose and my duty is to endeavor to aid you by giving you the principles of the law which pertain to the case so you may apply them to the evidence as you find the facts to be. I have found that if I indulge in too much talk on these questions of law that I am apt to confuse rather than to help the jury. I shall, therefore, say nothing further to you on the law of the case. You are to take this evidence calmly, dispassionately and analyze it, reduce it to its logical conclusion, from it finding the truth, and find as your conscience dictates applying the law and rendering your verdict accordingly. The word verdict in its liberal interpretation, the true word, the truth, that's what you are seeking and having found it, you gentlemen declare it by your verdict.
"Mr. Foreman, you will write your verdict on the back of this paper which is styled summons for relief and complaint, you will write it on the back of this paper. If you find for the plaintiff — by the way, pardon me, I was about to neglect the elements of damage that I must explain to you.
"Now, the plaintiff is seeking to recover damages for the alleged assault. Damages are of two sorts. Actual or compensatory and punitive damages. Actual or compensatory damages are those which compensate one for the injury it is alleged that he sustained. In arriving at a verdict on that line, if you conclude that the plaintiff is entitled to recover, you are to take into consideration any pain or suffering he may undergo, and any expense to which he has been put by way of medical attention, and hospital fees, and the like, and any losses he may have sustained from the loss of employment in coming from his employment, and any diminishment of the earning capacity of the man hurt. Those are the elements in the meaning of compensation.
"Now, punitive damages are, as you will readily understand from the wrong itself, those which punish, punish one for his unlawful act, and are not only intended to punish the wrongdoer, but intended to deter him and others from doing the like thing. It is your province if you determine that the plaintiff is entitled to recover to determine what amount of money which could compensate him in the element of compensation which I have detailed to you. If, then, you decided that the defendant in this action acted willfully, wantonly and maliciously, the plaintiff would be entitled to recover punitive damages, such damages as in your opinion would punish the defendant for his unlawful act, and would deter him and others in like circumstances from committing the like act.
"Now, Mr. Foreman, if you determine that the plaintiff is entitled to recover, your verdict will be, we find for the plaintiff so many dollars, and writing the amount out in words and not in figures, actual damages. If you conclude that he also is entitled to recover punitive damages, and you will add, so many dollars, writing the amount out in words and not in figures, punitive damages. You can't give punitive damages, unless you find actual damages. You may give actual damages without giving punitive damages as you view the evidence in the case. You will understand, Mr. Foreman, if there are both sorts actual and punitive damages, you state the amounts separately. If in your opinion the plaintiff is not entitled to recover anything in this action, then your verdict will be, we find for the defendant. Whatever your verdict is, Mr. Foreman, write it out as I have suggested, and Mr. Foreman sign your name, and write underneath it the word foreman.
"The Court: Anything further for the plaintiff?
"Mr. Patterson: Nothing further for the plaintiff.
"Mr. Boulware: Nothing further.
"The Court: You are entitled, gentlemen, to any of the papers which have been put in evidence, and of the exhibits as we call them. If you desire any of them let the Court know and I will have them sent to you."
EXCEPTIONS"1. His Honor erred in charging:
"`Now, the plaintiff is seeking to recover damages for the alleged assault. Damages are of two sorts. Actual or compensatory and punitive damages. Actual or compensatory damages are those which compensate one for the injury, it is alleged that he sustained. In arriving at a verdict on that line, if you conclude that the plaintiff is entitled to recover, you are to take into consideration any pain or suffering he may undergo, and any expense to which he has been put by way of medical attention, and hospital fees, and the like and any loss he may have sustained from the loss of employment in coming from his employment, and any diminishment of the earning capacity of the man hurt. Those are the elements in the meaning of compensation.'
"In that, by the use of the words `may undergo' instead of `has undergone' or `in undergoing' the charge permitted the jury to enter into the field of conjecture as to possible suffering and injury and to assess actual damages for such suffering as the plaintiff `may undergo' in the future from the alleged injury; whereas, the defendant is liable only for such suffering as it is reasonably certain will, of necessity, result in the future from the injury.
"2. That his Honor erred in charging:
"`If, however, one go to a place of that character on a lawful mission, and he so conducts himself as to become offensive to the proprietor of that establishment, the proprietor has the right to eject. Now how must he eject him? He must proceed, first, by ordering him to leave the premises, if he declines to go, and does not go, he must first, use gentle means, and lay his hands upon him gently, if he resents and refuses to go, the proprietor of the establishment may use whatever force is necessary to eject the trespasser; but he must not use more force than is necessary, reasonably necessary than for that purpose.'
"In that,
"(a) The law does not require that the proprietor `must first use gentle means, and lay his hands upon him (the trespasser) gently.'
"(b) His Honor thereby charged on the facts in telling the jury that the proprietor `must first use gentle means, and lay his hands upon him (the trespasser) gently,' when the jury should have been allowed to find from the evidence in the case, under the remainder of the charge, whether or not the defendant had used more force than was reasonably necessary."
Mr. Thos. M. Boulware, for appellant, cites: As to charge on damages: 75 S.C. 102; 110 S.C. 449; 62 S.C. 336; 81 S.C. 317; 53 S.C. 488. Treatment of trespasser: 1 Mill. Const., 34; 2 R.C.L., 559; 11 S.E., 478.
Messrs. Jas. M. Patterson and Louis Harley, for respondent, cite: As to damages: 62 S.C. 336; 93 S.C. 426; 78 S.C. 81; 93 S.C. 299; 113 S.C. 387; 138 S.C. 252. As to eviction of trespasser: Wharton (1st Crim. Law), 625; 11 N.C. 485.
August 27, 1929. The opinion of the Court was delivered by
This is an action for damages on account of an assault and battery by the defendant upon the plaintiff which resulted in serious bodily injury to him. The jury rendered a verdict in favor of the plaintiff for $2,500 actual and $1,000 punitive damages. From the judgment entered upon that verdict the defendant has appealed.
The defendant Walker was the proprietor of a store at which the plaintiff Shramek was accustomed to trade. Upon his entering the store upon a certain day, he and the defendant got into a controversy about a past-due account which Shramek owed, as Walker claimed. It developed into an angry one, and Walker, on account of certain remarks made by Shramek, which he considered insulting and which were manifestly so intended, ordered him out of the store. (There is a conflict in the testimony whether the command to leave was made in the first or second stage of the controversy, which will be explained; but for the purposes of this appeal it will be assumed, as Walker testified, that it was made in the first stage). Walker made no effort at this time to enforce obedience to his order, by gentle or other means; on the contrary, he left the scene and went back into his office, at the rear of the store, Shramek remaining where he was, at the front. In a few minutes (Walker testified a minute and a half), he returned to the front of the store where Shramek was, with an axe handle in his hand, and repeated his order that Shramek leave the store. He still made no effort to enforce obedience to his order. He testified: "I walked out there and stood right in front of him, and like that was the counter, and I stood there, and I said `Vance, I told you to get out of here and I do not want anything more to do with you' and he stood for a second and finally he did start to go out, and about that time Stuckey and Lee was coming in at the front door, and they were coming in, and he made about two steps, he turned around with his right hand in his pocket, and a cracker-box there in between the two counters, and the counters were very close, and just as he got by the cracker-box he made a quick turn, and after I ordered him out of the store twice, and did not like to do anything, and I had no other belief (than) that he wanted to do me some bodily harm, and I hit him with the axe handle."
The blow knocked Shramek to the floor insensible, with a fractured skull, laying him up for several weeks. Later he instituted the present suit for damages.
The law is well settled, as thus expressed in our own case of State v. Lazarus, 1 Mill, Const., 34: "The prosecutor having business to transact with him, had a right to enter his house, and if he remained after having been ordered to depart, might have been put out of the house, the defendant using no more violence than was necessary to accomplish this object, and showing to the satisfaction of the Court and jury, that this was his object." And in 2 R.C.L., 559: "It is a well-settled principle that the occupant of any house store, or other building, has the legal right to control it, and to admit whom he pleases to enter and remain there, and that he also has the right to expel from the room or building any one who abuses the privilege which has been thus given him. Therefore, while the entry by one person on the premises of another may be lawful, by reason of express or implied invitation to enter, his failure to depart, on the request of the owner, will make him a trespasser and justify the owner in using reasonable force to eject him. The most common cases involving the right of an owner to eject one from his premises who entered lawfully, are those where a person enters a hotel or business place or the conveyance of a common carrier and while therein forfeits his right to remain by his misconduct or failure to comply with the reasonable rules and regulations. On the forfeiture of his right he becomes a common trespasser and may be forcibly ejected on failure to depart after a request to do so." See also 5 C.J., 745.
An exceedingly clear statement of the rule is found in Watrous v. Steel, 4 Vt., 629, 24 Am. Dec. 648: "It is a well-settled principle that the occupant of any house, store, or other building, has a legal right to control it, and to admit whom he pleases to enter and remain there, and that he has also a right to expel any one from the room or building who abuses the privilege which has been thus given him; and if the occupant finds it necessary, in the exercise of his lawful rights, to lay hands on him to expel him he can legally justify the assault."
Under the circumstances stated, the wrongful status of the intruder or unwelcome guest, as a trespasser, will have been established; and equally so the right of the lawful occupant of the premises to use such force as may be reasonably necessary to eject the one who is in the wrong.
The mode in which this unquestioned right should be exercised has been called in question by the defendant's exception to the following charge in his Honor, Judge Bonham: "If, however, one go to a place of that character on a lawful mission, and he so conducts himself as to become offensive to the proprietor of that establishment, the proprietor has the right to eject. Now how must he eject him? He must proceed, first, by ordering him to leave the premises, if he declines to go, and does not go, he must first, use gentle means, and lay his hands upon him gently, if he resents and refuses to go, the proprietor of the establishment may use whatever force is necessary to eject the trespasser; but he must not use more than is necessary, reasonably necessary than for that purpose."
The appellant insists that this charge was erroneous in declaring that, regardless of the circumstances attending the altercation, it was the duty of the defendant, after ordering the plaintiff to leave the store, to "first use gentle means, and lay his hands upon him gently if he refuses to go."
As there was no evidence tending to show that the defendant complied with this condition, he insists that the imposition of it was prejudicial error.
It is conceivable that under certain circumstances it would be entirely proper, and perhaps necessary, that after the intruder (which expression would include both one entering without permission, express or implied, and one who had entered with such permission and had forfeited his right to remain) had been told to leave, the occupant should follow the order with the gentle laying of hands upon him to induce obedience, it is manifest that a hostile attitude on the part of the intruder would not only render the laying on of hands unnecessary, but would almost certainly precipitate a personal encounter. It would be best to declare the right of the occupant to be, after the intruder had forfeited his right to remain, to order him to leave, and upon refusal to use such force as might be reasonably necessary to eject him, leaving the question of the necessity and propriety of laying on hands out of the declaration, as a matter for the consideration of the jury in determining the reasonableness of the means of ejection.
It was erroneous therefore to impose the condition of gently laying his hands upon the plaintiff to all conceivable circumstances.
The error, however, was harmless in the present case, for the reason that the defendant offered no evidence tending to show that he struck the plaintiff in the exercise of his unquestioned right to eject him from the store, or that it was a reasonable exercise of that right.
The altercation, verbal and physical, consisted of two separate and distinct stages: The controversy in angry fashion at the front of the store, and the later attack by the defendant with the axe handle.
The defendant does not claim at either stage to have been making an effort to eject the plaintiff. All that he did in the first stage was to order him to leave; and all that he did in the second stage was to do the same thing with a show of unusual force. His defense was self-defense; that the plaintiff, who had started to leave, turned sharply around and made a gesture from which he apprehended a personal attack, to prevent which he struck. So far from attempting to eject the plaintiff, he adopted the most effective method of making it impossible for him to leave.
As is pertinently remarked by the Court in the Lazarus case: "The prosecutor having business to transact with him, had a right to enter his house, and if he remained after hav-been ordered to depart, might have been put out of the house, the defendant using no more violence than was necessary to accomplish this object, and showing to the satisfaction of the court and jury, that this was his object. But here the beating was cruel and excessive, not calculated, either from its extent or manner, to produce the pretended object of the defendant, but on the contrary, rather calculated to prevent him from going."
His Honor, Judge Bonham, gave a full and clear charge as to the defense of self-defense which the jury resolved against the defendant. There necessarily remained the fact, even if the defendant was attempting to exercise his right to eject the plaintiff, that an inexcusable and dreadful blow was inflicted upon the plaintiff, entirely out of proportion to what could be considered a reasonable exercise of that right; rather "the indulgence of ungovernable or revengeful spirits"; a conclusion which could not possibly have been affected by the alleged error in the charge; for if the Judge had charged the jury that the defendant was under no obligation first to lay his hands gently upon the plaintiff, it would have been impossible for the defendant to have escaped from the disproportionate and fearful assault.
In note to Hannabalson v. Sessions, 93 Am. St. Rep. 257, it is said: "A mere trespass upon the land of another, even after the trespasser has been warned to depart and has refused, does not justify the landowner in using a dangerous or deadly weapon to resist the trespass, and if the landowner shoots or otherwise injures the trespasser with a deadly or dangerous weapon, not in necessary self-defense, he is liable for the damages caused thereby" — citing James v. Hayes, 63 Kan., 133, 65 P., 241; Everton v. Esgate, 24 Neb. 235, 38 N.W., 794; Montgomery v. Com., 98 Va., 840; 36 S.E., 371; Id., 98 Va., 852, 37 S.E., 1. See also, Golden v. State, 1 S.C. 292; Harris v. Marco, 16 S.C. 575; Davis v. Whitridge, 2 Strob., 232; Barnes v. Martin, 15 Wis. 240, 82 Am. Dec., 670; note 25 A.L.R., 553.
Exception is taken to the Judge's charge, in speaking of compensatory damages: "In arriving at a verdict on that line, if you conclude that the plaintiff is entitled to recover, you are to take into consideration any pain or suffering he may undergo, and any expense to which he has been put by way of medical attention, and hospital fees, and the like, and any loss he may have sustained from the loss of employment in coming from his employment, and any diminishment of the earning capacity of the man hurt. Those are the elements in the meaning of compensation."
The contention is that: "The charge permitted the jury to enter into the field of conjecture as to possible suffering and injury and to assess actual damages for such suffering as the plaintiff `may undergo' in the future from the alleged injury; whereas, the defendant is liable only for such suffering as it is reasonably certain will, of necessity, result in the future from the injury."
We think that the word "may," objected to, was used in the sense of futurity, synonymous with "will," and not involving the objectionable element of chance or speculation contained in the words "liable" and "might," condemned in Green v. Catawba Co., 75 S.C. 102, 55 S.E., 125, 9 Ann. Cas., 1050, and Lockhart Co. v. Askew, 110 S.C. 449, 96 S.E., 685. In view of the immediate context, "actual or compensatory damages are those which compensate one for the injury that he sustained," we cannot think that the jury was led to the realm of conjecture. We rather think that it was one of the microscopic errors close to the border line of inadvertent statements to which attention should have been called.
The judgment of this Court is that the judgment of the Circuit Court be affirmed.
MESSRS. JUSTICES BLEASE and STABLER concur.
MR. CHIEF JUSTICE WATTS did not participate.
I concur in result.
I am in accord with the views expressed in the opinion of Mr. Justice Cothran in overruling the exception imputing error to the presiding Judge in his charge on the measure of damages, and also agree with the view stated as to it not being the duty of the proprietor to gently lay his hands upon the trespasser as a necessary step to exercise the right of the use of force in ejecting the trespasser; but I do not agree with the position that there was no evidence that the defendant was, at the time he struck the plaintiff, attempting to exercise his right to eject the plaintiff. I think there was some testimony to be considered by the jury on this issue. Take, for instance, the following testimony of the witness Ussery, who testified on behalf of the defendant:
"A.P. Ussery, sworn says: I was clerking for Mr. Walker. He went back to the office and in about 3 minutes Mr. Shramek went back and I heard them saying something about a bill. Mr. Shramek came out first and leaned up just above the ice box and later Walker came out.
"Q. Tell us what took place between them? A. Mr. Vance (Shramek) said, pay you a penny, or a dollar, or God damn else, and then Mr. Walker ordered him (Shramek) out of the store, and he did not go, and he (Walker) returned to the office, and come back, and I seen he had an axe-handle.
"Q. Which hand did he have it in? A. Right hand.
"Q. What happened then? A. And he ordered him (Shramek) out again, and he (Shramek) did not move, and finally he (Shramek) took about three steps and wheeled around.
"Q. Who took three steps? A. Mr. `Vance' (Shramek).
"Q. Which way was he going? A. Starting toward the door.
"Q. And started toward the door, and took three steps, and what did he do? A. Turned around.
"Q. Where did he have his hand when he turned around? A. He had his right hand in his front pocket.
"Q. You say, he had his right hand in his front pocket? A. Yes, sir.
"Q. And turned around, and who was he facing when he turned around? A. Mr. Walker, and just as he turned around Mr. Walker hit him.
"Q. With what? A. The axe-handle."
Also take the testimony of the defendant, Walker, on this point:
"A. After that he (Shramek) walked on out of the office, and went and leaned up by the side of the ice box, and leaned up with his feet out this way. I walked on out and asked him the question, and I said, `Vance,' how long have you been owing this thing, and he said God damn whole year, and I said, well are you going to pay it. And he said, I will not pay one cent, one dollar, or a God damn thing, or else, and grinned in my face. I told him I wanted him to get out of here, and I meant for him to stay out, I do not want anybody that will get my groceries, and insult me, and my clerks in the store about it. I turned around and I walked back to the office. I stayed in there, I suppose a minute and a half, or possibly two minutes, and he was still there, and I saw a piece of axe-handle, and they called it a big hickory stick, and we used it there to hold up the window, and it was not salable, and could not sell the axe-handle, and split right where the handle goes in the axe, and split off just like a shovel. I walked out there, and stood right in front of him, and like that was the counter, and I stood right there, and I said, `Vance,' I told you to get out of here, and I do not want anything more to do with you, and he stood for a second and finally he did start to go out, and about that time Sturkey and Lee was coming in at the front door, and they were coming in, and he made about two steps, he turned around with his right hand in this pocket (witness indicating) and a cracker box there in between the two counters, and the counters were very close, and just as he got just by the cracker box he made a quick turn, and after I ordered him out of the store twice, and did not like to do anything and I had no belief that he wanted to do me some bodily harm, and I hit him with the axe-handle.
"Q. I notice you motioned with your right hand. You left handed? A. No, sir.
"Q. You hit him with the axe-handle with your right hand. Where did you hit him? A. On the left side right about there.
"Q. He was not walking out of the store like he said, with his back to you when you hit him? A. When he started to walk out and he turned around.
"Q. And you hit him after he had turned around facing you? A. Yes, sir."
Whether this testimony was true or not is not within the province of this Court to say, but in my opinion it was certainly some testimony to be considered by the jury on the question now under consideration, and made an issue for the jury as to whether or not the defendant was at the time he struck the plaintiff attempting to exercise his right to eject the plaintiff. Neither do I agree with the position that the defendant's pleas of self-defense are a negation of any purpose on his part to put the plaintiff out of his store. As I view the testimony quoted above, if the same is to be believed, which is a question for the jury, it cannot be said that there was an absence of any effort on the part of the defendant to exercise his right to eject the plaintiff. In my opinion the two pleas are not inconsistent, and the interposing of one is not a negation of the other. The exercising of the right to eject a trespasser may and often does bring on a personal difficulty, but this is no reason why a proprietor under such circumstances should be denied the right to plead the law of self-defense, if he meets the requirements, and neither should he be denied the right with which he as proprietor under the law is clothed because he sets up the plead of self-defense when he strikes the trespasser at the time the trespasser is attempting to inflict serious bodily injury on him (the proprietor). Such is the position the defendant was placed in, if the above-quoted testimony is a correct statement of what transpired. Whether that statement is true is a jury question and not a question for this Court.
In my opinion the charge that the proprietor "must first use gentle means and lay his hands upon him (the trespasser) gently" was error, and this Court cannot say that the charge did not influence the verdict. This error was not corrected elsewhere in the charge. I therefore dissent from the majority opinion and think that the judgment of this Court should be that the judgment of the Circuit Court be reversed and the case remanded to that Court for a new trial.
Let the exceptions and the Judge's charge be reported.