The petition alleged the injury and the damage resulting therefrom with as much certainty as the nature of the case would probably permit, and the court did not err in overruling the demurrer thereto.

If the defendant committed a battery upon the plaintiff, the fact that the plaintiff may have subsequently instituted a malicious prosecution against him would not furnish to the defendant any defense to an action instituted by the plaintiff to recover damages done to him by the battery, nor could any damage to the defendant resulting from such malicious prosecution be pleaded in reconvention in this action. Hart v. Davis, 21 Tex., 411; Waterman on Set-off, 123.

Under the general denial all mitigating facts are admissible in evidence. The two matters have no such connection as authorized *396the setting up of the one as a defense to the other. This action is-based upon the battery by defendant upon the plaintiff; the matter sought to be set up in defense is based upon an alleged malicious-prosecution subsequently instituted by the plaintiff against the defendant. Art. 650, R. S., has no reference to such separate and distinct causes of action. The fact that, upon a criminal accusation against the defendant for the battery which is the basis of plaintiff’s claim for damages in this cause, the defendant was acquitted, furnishes no defense to the present action, nor could such matter go in bar or mitigation of damages, actual or exemplary.

If there had been a conviction upon the criminal charge, and the fine paid or the punishment suffered, that might be shown in mitigation of exemplary damages; but no'such thing is pleaded. Flanagan v. Womack & Perry, 54 Tex., 46; Field on Damages, 122. There being direct proof before the court as to the battery, it is not perceived that the court erred in. refusing to admit evidence of. the character of the plaintiff, and especially so as it appears from the evidence that the plaintiff was unknown to the defendant, and he could not, therefore, have been influenced in his conduct by anything other than what occurred at the time of the battery, and what he had previously learned in reference to the treatment of his son.

It is urged that the court erred in. instructing the jury “ that, if the striking was done wantonly and without justification, the jurjr might find, in addition to the actual damages sustained, such sum as may be deemed adequate as exemplary or punitory damages;” and this upon the ground that the charge was misleading in that it gave the jury to understand that the terms “ wantonly ” and “ without justification ” were synonymous. Such could not have been the effect of the charge; but, on the contrary, its effect was that the act must have been not only wanton, but also without justification.

At the request of the defendant, the court clearly instructed the jury as to the facts which they must find to authorize a verdict for the plaintiff, and it was not error to refuse to emphasize the charge thus given, by instructing the jury that, unless such facts were proved, they could not find for the plaintiff more than nominal damages.

It is true that, in a case in which a plaintiff claims damages actual and exemplary, the jury should he instructed to separate the one from the other in their verdict: but a failure of the court so to charge is not cause for reversing a judgment, if the charge be otherwise correct and no request is made to the court for a charge upon that matter.

*397Parties who are of the opinion that a charge is not so full as it might be ought to ask such additional instructions as they think proper. This is due to the court and to themselves.

There was no error in refusing to grant a new trial on account of the newly discovered testimony, for had it been proved that the plaintiff “ kicked ” the defendant’s son out of the ice-house, it would not have been to him a justification for the battery upon the plaintiff; and in so far as the motive of the defendant in making the battery might be inquired into, all of the uncontradicted evidence shows that he acted upon the honest belief that his child had been “kicked ” ■and otherwise mistreated by the plaintiff.

The provocation, real or supposed, was very great, and no doubt the jury took all of the attendant facts and circumstances into consideration in determining the right of the plaintiff to compensation, and as to the amount thereof; and looking to the testimony in regard to the character of the injury, we are unable to say that the jury gave the plaintiff a larger sum than the evidence justified for ■the actual damage received.

The case was one, from the standpoint of the defendant, of great provocation to him, but it was one in which a jury would most probably give full force to all the mitigating circumstances; and while, if the jury had given a less sum, or had found for the defendant, their verdict could not have been disturbed, yet we cannot say that the judgment is excessive. Finding no error in the judgment which requires its reversal, it must be and is affirmed.

Affirmed.

[Opinion delivered May 4, 1883.]