State v. Herrick

By the Gov/rt

Although there was testimony in this case tending to prove the contrary, there was direct *136and. positive testimony showing that the appellant in addition to other violence, struck Coffin, the prosecuting witness, in the eye. Admitting the right of the appellant to use such force as was necessary to enable him to recover the ticket claimed to have been wrongfully taken from his possession, if the direct testimony referred to was true, it can .hardly be contended that the blow struck was justifiable under the rule. Scribner vs. Beach, 4 Denio, 451; 2 Metcalf, 26. It was for the jury to determine, among other things, what the fact was as to the striking, and the evidence was such as to warrant a verdict, either for or against the appellant. Under such circumstances, as has been repeatedly held by this Court, we do not deem it proper to disturb a verdict. See De Rochbrune vs. Sootheimer, ante, 78; People vs. Goodrich, 3 Parker Cr. R., 518.

This is a criminal prosecution for assault and battery. The prosecuting witness testified to facts constituting the offence charged, both upon his examination in chief and cross-examination, and also to a remark made by the appellant to one Birge, which would seem to be immaterial. He was then asked on cross-examination, “What further took place ?” This was objected to as immaterial, the objection was sustained and exception taken. There was no offer, or proposal to show, by the answer to this question, any facts bearing upon the assault and battery; nor was the inquiry sufficiently specific in itself to show that the answer could throw any light upon the transaction which was the subject of the prosecution. We think the exception was not well taken. The exception to the ruling of the Court excluding the interrogatory, “How did Herrick get the ticket from Coffin ?” does not appear to be particularly insisted upon by the appellant’s counsel. We do not see how the inquiry was material. We cannot forbear to remark that it appears to us, that the fine imposed in this *137instance, was quite as heavy as was warranted by the circumstances, as detailed in the paper book. One ground of the motion for a new trial in the Court below, was the excessiveness of the fine. This is not specifically urged here, and if it was, we think, we should not be authorized to interfere with the exercise of the discretion entrusted to the District Court. It is probable there may have been good reasons for the severity of the sentence which the record fails to disclose.