
    Cotton v. The State.
    
      Son assault demesne is no excuse if the retaliation be excessive, and bear no proportion to the necessity or provocation received; and it is matter of evidence whether the retaliation be excessive and out of all proportion lo the necessity or provocation.
    Where the defendant, in support of a motion for a new trial, filed his own affidavit and that of another that two of liis witnesses who had been regularly subpoenaed were present in. court when the trial commenced, but wrongfully absented themselves, so that they were not to bo found when called to testify, whereby, etc.: Held, That the defendant’s affidavit should have stated that he could not have proved tho same facts by others present, and that tho affidavits of tho witnesses, showing the facts to which they would tostifv, ought to have been produced; or if their affidavits could not have been procured, that fact should have been made to appear.
    When a party has announced himself ready for trial, it is in general too late to move for a continuance. But where lie is surprised by the unauthorized withdrawal of his witnesses , after the trial has commenced, tho better practico seems to bo then to apply for a continuance or postponement of the trial; and should the court unadvisedly reluso the application, such refusal might be made tho ground of a motion for a new trial.
    
      It seems that the question whether an assault bo an aggravated assault or not depends on the testimony, and is a matter for the jury to find, the indictmeut being the same in both casos. (Note f>2.)
    An indictment will be sufficient in respect of the description of the person injured if it he certain to a common intent; if it be sufficiently explicit to inform the prisoner who are his accusers.
    If tho name of tho person injured he correctly stated where it occurs the first time in the indictment, subsequent statements of it, in which there is an apparent variation, may bo rejected as surplusage. (Note 03.)
    Appeal from 'Walker. The appellant was indicted at the Spring Term of the District Court, 1819, for an assault and battery. The name of the person, upon whom the injury was alleged to have been committed occurred throe times in the indictment. In the first place his name was stated as “ Francis nubble,” in the second as “ the said. Francis Tibbies,” and in the third as the said Francis Ilubbles.”
    At the trial it was proved by Francis Hnbble, the witness on behalf of the State, and the person upon whom the assault and battery were alleged to have been committed, that tlie defendant, who was a youth of but sixteen years of age, was making sport of an intoxicated old man in the bake-house of Hubble; that Hubble, thinking, as lie said," that the defendant was using’ the old man too roughly, told him'tliat if he did not desist lie would put him out of the house; tliat the defendant thereupon cursed Hubble, and told him tliat if he did not mind he would serve him in (he same way; that Hubble then advanced hastily lo the defendant; that they seized each other in an excited, angry manner, the defendant being against the wall; that tlie defendant then seized a glass bottle and struck Hubble on the head, breaking the bottle aud causing a copious effusion of blood ; the defendant then ran out of the house into the street, Hubble pursuing’ him. A witness introduced by tlie defendant testified that he, the defendant, struck Hubble with.the bottle as soon as the latter came within two feet of him, and before Hubble touched him.
    The jury found the defendant guilty, and assessed his punishment at a ñne of $25, ami imprisonment for three months.
    The defendant moved for a new trial, and in support of his application filed his affidavit setting forth, in substance, that he had caused two witnesses to be subpoenaed, naming them; that they were about the court-house until the cause was called for trial, and had by their conduct induced him to believe that they would be present in court when tlie trial should come on; that after the trial had been commenced they withdrew themselves, by which ho was deprived of their testimony; that he could have proved by the witnesses that said Ilnbble or Ilubbs made the first assault upon him, and that he acted in self-defense; and that lie can obtain their testimony at another trial. This affidavit was also sworn to by one T. F. Cotton.' The court overruled the motion for a new trial. Tlie defendant then made a motion in arrest of judgment, which was also overruled, and he appealed.
    
      Sneed & Oldham, for appellant.
    That the judgment in this case should be reversed we have not a doubt. In tlie first place tlie evidence shows that the first assault was committed by Hubble. He advanced upon Cotton in a hostile’ manner. It was not necessary tliat Cotton should have waited until he was first struck before being justified in striking in self-defense. (1 Russell on Crimes, CIO.) Although the tight" took place in Hubble’s house, that fact did not justify Hubble’s'conduct. He should have first ordered Cotton to leave the house. If the latter had persisted in remaining, he might then have been put out. But this he did not do. (The State v. Jacob Lazaras, 1 S. Car. 11., 34; 1 Bussell on Crimes, 609, aud case cited in note &.) Hubble therefore commenced the fight, and was alone responsible for the consequences which resulted.
    The facts contained in the affidavit of the appellant, showing that the witnesses who were summoned to testify in his behalf withdrew themselves from the court during the progress of the trial, certainly present a strong case for a new trial, and in New York has been decided to be a good cause for one. (Tilden v. Gardiner, 25 Wend. R.. G33.) Tlie Act of 1S4S (page 229, sec. 57) provides “that if any person shall assault another or in any way break the peace, upon complaint aud conviction thereof before any justice or mayor of any city or town, he shall be fined not exceeding one hundred dollars or imprisoned not exceeding thirty days,” &c. Under this statute it is clear that tlie punishment on conviction must be either fine or imprisonment, aud not both, and if imprisonment, for a time not exceeding thirty'days.' This offense, if offense it was. was committed under this section of tlie act.; for it cannot, it is conceived by us, lie made an aggravated assaidt under the 5Sth section.
    By inspection of the indictment it will be perceived by the court there is no such deseript ion of tlie. person upon whom tlie assault and battery were committed as would enable the party to plead tlie conviction in bar of another indict incut. Tlie name of filio person is stated in three places in tlie indictment, aud is different in each.
   "Wheeler, J.

It is objected to (he conviction — 1st. That the original assault was not committed by the defendant. 2d. That the misconduct of the defendant’s witnesses entitled him to a new trial. 3d. That the punishment should have been fine or imprisonment; and that botli fine and imprisonment cannot be inflicted for this offense. 4th. That there is no sufficient description of the person upon whom the injury was committed.

In respect to the first objection, it is to be observed that in order to make a previous assault upon the defendant by (lie witness a justification for that committed by the defendant upon him, it must appear that the striking by the defendant was in his own defense, and was in proportion to the attach made. Son assaidt demesne is no excuse if the retaliation by the defendant be excessive and bcar.no proportion to tlie necessity or provocation received; and it will bo matter of evidence whether the retaliation by the defendant was excessive a.nd out of all proportion to the necessity or provocation. (2 Stark. Ev., 40; 1 East., C L., 400; 1 Russell on Cr., 610.) It was for the jury, therefore, to determine from the evidence whether the resistance of the defendant to the assault of the witness (if It was an assault, under the circumstances, for him to put the defendant out of tlie house) was excessive and disproportionate to the necessity. I-Iaving done so by their verdict, we see nothing in tlie evidence to induce us to disturb it. While the law (it lias been said) permits men to defend their persons, it is careful to restrain the indulgence of an ungovernable and revengeful spirit. And the jury may have believed, and justly, that the violence of tlie defendant was not employed for his own defense merely, but for the gratification of a wicked, malevolent, and revengeful spirit. If ¿he evidence justified this belief — and we are not prepared to say that it did not — the previous assault of the witness, as we have seen, afforded no justification or excuse to the defendant.

The alleged misconduct of defendant’s witnesses is shown only by an affidavit made by himself and another on the day after the trial. It does not state that the defendant could not prove the same facts by others present. (8 Mis. R., 606.) But if it did, it ought to have been accompanied by tlie affidavit of the witnesses, showing the facts to which they would testify; or if their affidavits could not he procured, that fact should have been made to appear. (Madden v. Shappard, 3 Tex., R.; Edrington v. Kiger, ante, 89.) The affidavit does not disclose sufficient matter to have justified the court in awarding a new trial. When the absence of the witnesses was discovered, the better course would have been immediately to have moved the court for a continuance or postponement of the trial to enable tin; party to obtain the attendance of his witnesses. If they were regularly snbpoomted, he might have taken an attachment against them and thus compelled their attendance. The court, in its discretion", if the justice of the ease seemed to require it, would doubtless have granted tlie application. When a party lias announced himself ready for trial, it is in general too late to move for a continuance. (1 Browne R., 240; 8 Johns. R., 437; 1 Penn. R., 280; 2 Id., 713.) But where he is surprised by the unauthorized withdrawal of his witnesses after the trial lias commenced, tlie better practice seems to he then to apply for a continuance or postponement of tlie trial; and should tlie court unadvisedly refuse the application, such refusal "might he made the ground of an application for a new'trial. (2 Bailey R. 576; 1 Id., 25; Id., 545 ; 4 Day R., 471; 3 Wend. R., 377.)

The objection to the assessment by .tlie jury of tlie punishment is not, it is conceived, well founded. It was for the jmy to determine from the evidence the character of the assault. They found it of an aggravated character, and proceeded to assess the punishment under the 58th section of the act of 1848, (p. 229,)which provides that if the offense be of an aggravated nature, upon con-victiou the offender may be punished by fine not exceeding $200 and imprisonment not exceeding six months.

Note 52.—Gardenheir v. The State, 6 T., 348; Givens v. The State, 6 T., 344; Reynolds v. The State, 11 T., 120; Norton v. The State, 14 T., 387; Johnson v. The State, 17 T., 515; The State v. Lutterloh, 22 T., 210.

Note 53.—Grain v. Griffis, 14 T., 358; Musquez v. The State, 41 T., 226.

As to tlie remaining objection to the conviction, tlie description of the person injured, certainty to a common intent in this respect is, it is said, all that the law requires; and if the description he sufficiently explicit to inform the prisoner who are. his accusers, the indictment may be supported. (1 Chit. Cr. L., 211.) Ii a party be known by one name as well as another, he may.be described by either, (Id.. 240;) as where an indictment for stealing laid the property stolen as belonging to Steven Harris, and it appeared that the name of the owner was Harrison, but he was sometimes called Harris, it was held to be no variance, (1b., n. a; 1 Overt. R., 434.) If the party here was known by two names, ho was well described by either. But if his name was Francis Hubble., as from the statements of facts it appears to be, it was correctly stated in the first instance, and the subsequent statement of it, in which the apparent variation occurs, was unnecessary, aud may be rejected as surplusage. In the subsequent statements it was sufficient to have used the Christian name only, or to have referred to the name by the use of a pronoun. (1 Chit. Cr. L., 216, 217; 4 Pick. R., 252.) We are of opinion that there is no error in the judgment, and that it be affirmed.

Judgment affirmed.  