
    E. B. Omohundro, Respondent, v. Luke M. Emerson, Appellant.
    St. Louis Court of Appeals,
    May 2, 1899.
    Assault and Battery: practice, trial. In the case at bar the defendant could not, under a plea denying the assault, which is the effect of the general denial, move the court to instruct the jury on the theory of confession and avoidance; and, held, further, that the only way that alleged misconduct of a trial judge can get before an appellate court for review, is by setting out the facts constituting the misconduct in the bill of exceptions.
    
      Appeal from the Audrain Circuit Court. — Hon. Elliott M. Hughes, Judge.
    Affirmed.
    J. O. Dempsey, J. D. Hostetter and E. M. Major for respondent.
    Appellant’s complaint as to instructions given for the plaintiff and refused for the defendant, can not be noticed or considered by this court. The record affirmatively shows that it does not contain instruction number 1 given for the plaintiff, and none of the instructions asked for by defendant, are in the record. In this state of the record, all the presumptions are in favor of the propriety of the action of the trial court, as in the absence of these instructions, it can not be determined whether error was committed or not. This proposition is supported by an unbroken line of decisions. State v. Hendy, 49 S. ~W. Rep. 988; Evans-Snyder-Buell Co. v. Turner, 143 Mo. 938; Birney v. Sharpe, 78 Mo. 73; G-reenabaum v. Millsaps, 77 Mo. 474. But even if this court should consider the suggestions made by appellant’s counsel in critio.ism of the instructions given for the plaintiff and those refused for defendant, we claim that the action of the trial court was proper, relative to these instructions. The learned counsel for appellant makes an unfounded criticism on our instruction .number 2, and claims that it is erroneous in leaving the matter of damages to the belief of the jurors, and suggests that this belief should arise out of the evidence. The criticised instruction does not read as the learned counsel for appellant claims it does. The matter of damages was left to the jury as resting upon what they might “believe from the evidence.” So that according to the suggestion of appellant’s counsel, the criticised instructions conforms precisely to his view of the law. In the absence of the defendant’s refused instructions from the record, we can only gather what the substance of those instructions were, from what counsel says in his brief they contain. The answer was a general denial, which of course denied the assault, and under the decisions it was improper to give any instruction on behalf of defendant, which presented a theory of self-defense or which, admitting the assault, attempts a justification of it. Such defenses, if they are to be relied upon, must be set up and specially pleaded in the answer. Dailey v. Houston, 58 Mo. 361 loe. cit. 369; O’Leary v. Rowan, 31 Mo. 117; Sloan v. Speaker, 63 Mo. App. 321; Thomas v. Werremeyer, 34 Mo. App. 665 loe. cit. 671.
    S. H. King for appellant.
    In the case of Green v. Telfair, 11 How. Pr. (N. T.) 260, the court says: “A judge may also keep the jury together as long as in his judgment there is any reasonable prospect of their being able to agree; but beyond this I do not think he is at liberty to go. * * * A judge has no right to threaten or intimidate a jury in order to affect their deliberations.” A new trial should be granted where the verdict was rendered shortly after the judge told tbe jury (which had been out all night) that they could have breakfast at their own expense, they having had no supper. Physioc v. Shea, 75 Ga. 466; see, also, 86 Tenn. 537. In McPeak v. Eailway, 128 Mo. 644, citing and approving 66 Mo. 148, court says: “Our statute only contemplates that the media of the transmission of thought between court and jury shall be by written instructions given in open court,” citing E. S., sec. 1188; see cases cited in this case. “Court should not indicate that the jury would be justified in bringing in a verdict for the sake of expediency.” 128 Mo. 644. “While not intended in that sense, evidently any juror might reasonably construe the above language to mean that he inight yield his individual convictions of right, and agree with his fellows for the sake of agreeing, whether his judgment was convinced and his conscience satisfied or not. This was the most natural purpose,” etc. Ib. “Indeed the remarks of the court in this instance are even of a more objectionable character, because evidently aimed at, and addressed to one man, and that one had evidently stood out against the eleven who could get together in about a minute. In an hour and a half from the time of the address, a verdict was reached. On this state of facts there can be but one opinion as to the effect of the address.” Ib., 647.
   BLAND, P. J.

The substance of the petition is, that on March 12, 1897, defendant entered plaintiff’s office at Bowling Green, Missouri (he being a justice of the peace and insiu’.ance agent), and without warning to plaintiff, willfully, unlawfully, maliciously and wantonly assaulted him with a glass insulator and struck him about the head repeatedly, inflicting dangerous wounds and bruises about his head and face and on his arm and shoulder, from which he suffered great bodily pain and mental anguish. $2,500 actual, and $2,500 punitive damages were’prayed for. The answer was a general denial. The cause was taken to Audrain county by change of venue, where on a trial plaintiff recovered judgment for $100 actual damages, and $650 punitive damages. Defendant appealed.

The evidence offered by plaintiff tended to prove tbe allegations of bis petition. It appears from tbe evidence that defendant bad a case pending before plaintiff as justice of tbe peace, and being dissatisfied with bis rulings, be entered tbe office of tbe justice on March 12, 1897, picked up a glass insulator from plaintiff’s desk, and without warning him, struck plaintiff several severe blows about bis bead and face and on bis arm and shoulder, and that plaintiff by reason of bis wounds and injuries so inflicted by defendant was confined at bis borne for about two weeks, under tbe care of a physician. It was shown in tbe evidence that tbe defendant was a wealthy man. lie testified that be did not strike plaintiff with tbe insulator, but that tbe wounds were made by bis ring worn on a finger of tbe left band. Testimony of tbe bad character of defendant for truth and veracity was introduced by tbe plaintiff. In tbe progress of tbe trial defendant offered to prove that plaintiff bad procured an indictment to be preferred against defendant for tbe assault and afterwards bad it dismissed without trial. This testimony was excluded by tbe c<urt and tbe ruling is assigned as error. A record of tbe defendant’s trial and acquittal on tbe indictment would not have been admissible in bis favor. Gray v. McDonald, 104 Mo. loc. cit. 307; Corwin v. Walton, 18 Mo. 72, and we are unable to see under what rule of tbe law of evidence tbe fact that an indictment bad been preferred against defendant and dismissed would be admissible. Such evidence was not relevant to any issue in tbe case; it did not prove nor tend to prove any admission by plaintiff against bis interest; it did not prove nor tend to prove that defendant bad or bad not committed tbe assault; it proved nothing except tbe naked facts, that an indictment bad been filed and subsequently dismissed.

Tbe giving and refusing of instructions is also assigned as error. Instruction number 1, given for plaintiff, and criticised by appellant, is not in tbe record, nor are any of tbe instructions given for defendant in tbe record. Tbe clerk notes in the bill of exceptions that number 1 given for plaintiff, and all of tbe instructions given for defendant were not found. No steps were taken to supply these lost instructions. In such circumstances all tbe presumptions are in favor of tbe propriety of tbe instructions given, not contained in tbe record. State v. Handy, 49 S. W.Rep.988; Evans-Snyder-Buell Co. v. Turner, 143 Mo. 638; Birney v. Sharpe, 78 Mo. 73; Greenbaum v. Millsaps, 77 Mo. 474. Number 3, of tbe series asked by defendant and refused, was on tbe theory that defendant struck plaintiff in self-defense. Tbe answer was a general denial. Tbe defendant could not, under a plea denying tbe assault, which is tbe effect of tbe general denial, move tbe court to instruct tbe jury on tbe . theory of confession and avoidance. Dailey v. Houston, 58 Mo. loc. cit. 369; Sloan v. Speaker, 63 Mo. App. 321; Thomas v. Werremeyer, 34 Mo. App. loc. cit. 671.

Tbe appellant further assigns as error that tbe judge, after tbe jury bad retired to consider their verdict and bad deliberated for a considerable time, called them back into tbe court room and delivered á lecture to them which coerced them to find tbe verdict. Tbe attention of tbe trial court was called to this alleged misconduct in tbe motion for a new trial, and tbe affidavits of two reputable gentlemen were filed in support of tbe .motion, but these affidavits do not prove tbe fact set out in tbe motion. Tbe only way that alleged misconduct of a trial judge can get before an appellate court for review, is bysetting out tbe facts constituting tbe misconduct in tbe bill of.exceptions. State v. Levy, 126 Mo. loc. cit. 563; and cases cited; State v. Duncan, 116 Mo. loc. cit. 309; Nothing of tbe kind is found in tbe bill of exceptions before us and we rule this assignment of error against tbe appellant. Discovering no reversible error in tbe record, tbe judgment is affirmed.

All concur.  