MORGAN v. BARNHILL et al., 118 F. 24

SHELBY, Circuit Judge, after stating the case as above, delivered’ the opinion of the court. 1. In criminal cases good character may be proved by the defendant as tending to sustain the plea of not guilty, but in civil cases such-evidence is, as a general rule, held irrelevant. This is a civil suit between private parties. We- find no reason for departing from the general rule which makes evidence of the character of the parties inadmissible. i Whart. Ev. § 47, and cases there cited. The rule would,, of course, be different 'in a civil case where the character of a party was at issue. Id. § 48.

The circuit court ruled correctly in excluding the evidence offered as to the character of the defendant. Givens v. Bradley, 3 Bibb, 192, 6 Am. Dec. 646. 2. It is assigned as error that the trial court instructed the jury to find a verdict against the defendant for exemplary damages. The-contention is that exemplary damages are never a matter of right, but are always in the discretion of the jury. Many cases are cited as tending to sustain this view, but we need not comment on them, the question here being controlled by the constitution and statutes of; Texas.

Section 26 of

article 16 of the constitution of 1876 is as follows : “Every person, 'corporation, or company tbat may commit a homicide through any willful act or omission or gross neglect, shall he responsible in exemplary damages to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to the homicide.” Articles 3017 to 3019 of the Revised Statutes of Texas are as follows : “An action for actual damages on account of injuries causing the death of any person, may be brought in the following cases: * * *

(2) When the death of any person is caused by the wrongful act or negligence, neglectfulness or default of another. “Art. 3018. The wrongful act, negligence, carelessness, neglectfulness or default mentioned in the preceding article, must be of such character as would, if death had not ensued, have entitled the party injured to maintain an action for such injury. “Art. 3019.

When the death is caused by the wilful act or omission, or gross negligence of the defendant, exemplary as well as actual damages may be recovered.” The express statutory law which authorizes this action provides that for a willful homicide the wrongdoer shall be responsible for “exemplary damages” as well as for “actual damages.” If it be conceded that the plaintiff in error is right in his contention as to {he general rule in the absence of an express statute, we think the court below, in view of these statutes, properly declared the law.

The evidence of the defendant himself showed that the killing was willful and wholly unjustifiable, and he is therefore liable for both actual and exemplary damages. 3. Several assignments of error relate to the question of self-defense. It is claimed that the trial court should have submitted the question whether or not Morgan acted in self-defense to the jury. Morgan was a wicness for himself on the trial, and gave an account of the circumstances under which he killed Barnhill. It is to be presumed that he stated the case as favorably to himself as the facts justified.

In the statement of the case we have embodied Morgan’s evidence. It shows that he brought on the difficulty. He used the first offensive language. He struck the first blow. He then pursued Barnhill and killed him while he was defenseless and trying to escape. In such a case the doctrine of self-defense has no application. There is other evidence in the case showing that Barnhill was begging for his life when Morgan shot him. But, looking alone at Morgan’s statement, the facts recited by him show that he was the aggressor, and that his act was willful and unlawful.

In view of his statement, the case should be affirmed, even if there was evidence of some other witness which, standing alone, might present the question of self-defense. It would be trifling with the administration of the law to allow him a new trial in which to present the question of self-defense to the jury, when in effect he has stated under oath that he did not act in self-defense, and that he is guilty of the charge preferred against him. Motes v. U. S., 178 U. S. 476, 20 Sup. Ct. 993, 44 L,. Ed. 1150. The judgment of the circuit court is affirmed.