
    Jewett v. Banning.
    
      Evidence.—Motive.—Non-denial of Charge.
    
    In an action for an assault and battery, not committed in the presence of witnesses, ill-feeling on the part of the defendant towards the plaintiff, may be shown, as a link in the chain of circumstantial evidence.
    So also, that the defendant did not deny the assault, when charged with it, though he had denied it on a former occasion, in the presence of other witnesses; the weight to be given to such evidence is for the jury.
    Jewett *. Banning, 23 Barb. 13, affirmed.
    Appeal from the judgment of the Supreme Court, at general term, in the seventh district, reversing an order for a new trial, and giving judgment upon the verdict. [Reported below, 28 Barb. 18.)
    The action was for an assault and battery, alleged to have been committed by the defendant upon the plaintiff, in November 1852. There was no direct and positive evidence that the injury was committed by the defendant; no person having been present at the time of the occurrence. On the trial, the plaintiff gave evidence tending to show ill-will on the part of the defendant towards her, at a time immediately preceding the alleged assault. She also showed, that shortly after receiving the injury, she charged the defendant, in the presence of witnesses, with having injured her arm; to which he made no reply. The defendant, however, produced witnesses, who testified that, about an hour previously, they heard the plaintiff make substantially the same charge, which the defendant then denied.
    *The learned judge, after explaining to the jury the nature and principles of such evidence, submitted to their consideration, the weight to be given to the defendant’s silence, on the second occasion on which the charge was made. The defendant excepted to this part of the charge, as also to the submission of the question of the defendant’s ill-feeling towards the plaintiff.
    There was a verdict - for the plaintiff, which was set aside at the special term, and an order made for a new trial; on appeal, however, to the general term, the order was reversed, and judgment rendered for the plaintiff on the verdict. (See 23 Barb. 13). The .defendant took an appeal to this court.
    
      Selden, for the appellant.
    
      Hophins, for the respondent.
   * Davies, J.

The first question presented for "our consideration upon this appeal, is, as to the correct ness of the charge of the judge at the circuit, in stating to the jury, that if they were satisfied from the testimony, that there existed any. ill-feeling on the part of the defendant towards the plaintiff, that was a circumstance to be taken into the account. The fact of an assault and battery upon the plaintff, on the day named, by some one, would seem to have been established by proof satisfactory to the jury; the fact of such an assault, even from the imperfect statement of the testimony contained in the bill of exceptions, cannot well be doubted. It is sufficient, however, to say, that such fact has been found by the jury, and we see no occasion to question the finding in this respect. The main question litigated before the jury, was, whether the defendant committed the assault. To satisfy them that he did, a chain of circumstances was adduced, from which it was contended, on the part of the plaintiff, that they would be justified in finding that the defendant did commit the assault. A link in this chain was the fact of ill-feeling on the part of the defendant towards the plaintiff.

This evidence was not adduced, as the learned counsel for the appellant, in his argument, supposed, to show the intention of the defendant in committing the assault; neither was it offered to establish the fact that an assault had been committed. It was manifestly offered with the intent to establish, in connection with other circumstances, the fact that the assault was committed by the defendant; it was a part of the testimony to point him out as the guilty party, and to satisfy the mind of the jury, beyond all reasonable doubt, of his guilt, by exhibiting a motive on his part.

The judge at the circuit very truly said to the jury, that the plaintiff’s case, that is, as to the guilt or innocence of the defendant,.was entirely supported by circumstantial evidence; and he very properly added, that such evidence is always competent, and is often as satisfactory as direct or positive testimony. Some jurists have said, that it is even more reliable, and less liable to lead to error. Without entering that field of fruitful ^discussion, it is only necessary here to remark, that it is a competent source of testimony, and if the circumstances adduced lead the mind of the jury to the inevitable conclusion arrived at, no fault can be found with it.

In the case under consideration, many circumstances were produced, tending to show, as contended for by the plaintiff, that the assault was committed by the defendant. As bearing on this point of the case, it must be assumed, from the charge of the judge, that ill-feeling on the part of the defendant towards the plaintiff had been shown. Were the jury at liberty to take this circumstance into account, in determining the fact whether or not the defendant committed the assault? In criminal cases, expressions of ill-will by the prisoner towards the deceased or person injured, are always admitted as having a most material bearing upon the inquiry as to the guilt or innocence of the party accused. (Burrill on Cir. Ev. 335, 336, &c., and cases there cited.) It is there stated, that by this evidence we obtain an insight into the heart and mind of the party; his motives, which before could only be conjectured, or at best inferred by a process of reasoning, stand now directly revealed; his heart is, as it were, laid open to view, showing enmity or desire of revenge to be the source and spring of his whole conduct. In the case of The People v. Rickert (8 Cow. 226), on an issue of forcible entry and detainer, the defendant having entered peaceably, said to the relator, “ It will not be well for you, if you ever come upon the premises again, by day or by nightit was held, that this was relevant, and might be left to the jury, from which to find a forcible detainer. In the present case, if the life of the plaintiff had been taken on the occasion, and the defendant was on trial for the homicide, the evidence would clearly be a circumstance to be taken into account in fixing guilt upon him. We are unable to see any reason why the jury might not properly take it into consideration, in determining whether or not the assault upon the plaintiff was committed by the defendant; and we think there is no error in the charge of the judge at the circuit, in thus submitting it to them.

*In reference to the seegnd exception, I do not perceive that any rule of law has been violated. The judge very properly told the jury that if, when the charge was made, the defendant, at the same time, denied it, it furnished no evidence against him. But there was evidence in the case tending to show that, after the charge had been made by the plaintiff, and denied by the defendant, and, as we think may fairly be inferred from the testimony, in another conversation, in the presence of different auditors, and after the lapse of three-fourths of an hour, the charge was repeated by the plaintiff, with some variations. The judge stated to the jury, in reference to this, that they would not conclude that if the defendant had once emphatically denied the charge, he was called upon to repeat ' the denial, on the accusation being renewed; but it was left to them to give such weight to his silence, when it ivas repeated, if repeated, as it was entitled to, under the rules he had already laid down. These rules had been most favorable to the defendant, and excluded the idea that he Avas bound, on the same occasion of the repetition of the charge, to re-affirm his denial. The charge of the judge must be understsod as meaning, Avith the qualifications and restrictions which he had already stated, that the jury Avere at liberty, if they found the accusation Avas repeated, in another conversation, and Avith different persons present, to give such Aveightto the defendant’s silence, if silent he was, as, under the rules laid doAvn,it might be entitled to.

The evidence would seem to have Avarranted the jury in assuming that there Avas an interval of nearly an hour betAAmen the conversation in Avhich the charge was made and denied, and that in which it Avas made and the defendant Avas silent. It is undeniable, that at least íavo persons were present at the last conversation, Avho Avere not present at the first. If the jury could have so found, there is no just cause of complaint by the defendant as to this part of the charge. If there is any ambiguity as to the preceise meaning of the judge, it Avas in the poAver of the defendant to have had it corrected at the trial. But it seems to us, that the charge, in AÚeAV of the facts developed at the trial, and the previous instructions to the jury, is -unobjectionable. While the judge most explicitly and truly told the jury, that the making of the charge, and its denial by the defendant, furnished no evidence against the defendant, he very properly forbore to tell them,that if the charge Avas repeated on another occasion, in. the presence of different auditors, and the defendant remained silent, his previous denial Avas a shield to him, and no unfavorable inference was to he drawn from his silence on the repetition. We do not see why the defendant’s conduct, on such repetition of the charge, was riot to be considered by the jury, under the roles and instructions given to them by the court. It was a circumstance of more or less weight, in determining the fact as to the assault having been committed by the defendant, and as such, we think, was properly submitted for the consideration of the jury, The judgment should be affirmed.

Weight, J.

The action was sought to be maintained by indirect or circumstantial proof. Whether the evidence was sufficient to carry the case to the jury was not made a question; and the jury found against the defendant. Tlio legal questions open for discussion in this court arise on the charge of the judge.

The judge, among other things, charged, that if the jury were satisfied from the testimony, that there existed any ill-feeling on the part of the defendant towards the plaintiff, that was a circumstance to be taken into the account, in determining whether the defendant was guilty of the assault charged. To this then there was a general exception, raising merely the question whether ill-feeling-on the part of the defendant towards the plaintiff was a fact admissible, in connection with other facts, to prove, or from which the jury might infer, that ho committed the assault. It did not raise the question whether there was any or enough testimony on the point of ill-feeling to go to the jury. It is now urged, that if the fact were in its nature admissible, there ivas no evidence whatever of ill-feeling-, or anything from which the jury could he authorized to infer it, and hence, in this respect, it was error in the court submit the question. This objection, however, comes too late; the sufficiency of the proof of ill-feeling between the parties was not made a question on the trial; and we are not to assume that the Case, as made up, contains all the testimony on that subject. As a legal proposition, therefore, is it competent for a jury, in an action of assault and battery, sought to be maintained by circumstantial proof, to base their finding of the main issue, in any degree, upon the fact that ill-will existed on the part of the party charged towards the party alleged to have been assaulted? It is conceded, that the fact of ill-will might be competent upon any question as to the' intention with which an act was done. I am inclined also to the conclusion, that where the act is one of personal violence, ill-feeling or animosity existing on the part of the person charged towards the one assaulted is not, in all cases, an immaterial circumstance, and to be excluded from the consideration of the jury. Wuen an assault is proved to have been committed by some one, and the person charged is shown to have had the opportunity to commit it, it can scarcely be regarded as an immaterial circumstance for the consideration of the jury, with the view of connecting him with the act, that he v.us maliciously disposed towards the person assaulted.

I:i criminal cases, the existence of ill-feeling or unlawful passion on the part of the accused, has been regarded as a proper circumstance to be taken into consideration, as bearing on the question of the connection of the accused with the commission of the wrong. It may be admitted, that the fact of the existence of ill-feeling, of itself, proves nothing; but that is not the inquiry; the point is, whether it isa fact,in connection with others,that the "jury may rightly consider in inferring the alleged fact. Ordinarily, I think, where the charge is of personal violence, depending for its establishment on circumstantial evidence, the ill-will of the party charged may properly be made one of the circumstances; but from its peculiar relation to and connection with the other circumstances proved in the case under consideration, I cannot doubt its propriety. The plaintiff was injured, whilst the defendant was “alone with her; the circumstances proved would have warranted the inference that the defendant seized and wrenched her arm. But he was her brother, and it was neither impossible, nor very improbable, that the injury was accidental or unintentional. Indeed, such an hypothesis would .sooner be indulged, than that a brother, without any ill-will towards her, had intentionally inflicted violence on her person. But add to the circumstances, the fact that there existed ill-feeling on the part of the defendant towards the plaintiff, and the case assumes a different aspect. Whereas, before the jury'may have been bewildered by the absence of motive to do an intentional wrong, now it is made to appear. The ill-will did not tend to prove the act of seizure of the arm, but it aided to determine its character and legal effect.

Evidence had been given of an interview at the plaintiff’s house, some two months after the alleged battery, between the plaintiff and the defendant, in which she charged upon him the commission of the injury. The evidence left some doubt, whether the charge, being made and denied, was repeated on the same, or another occasion, and in the presence of different parties. Two witnesses on the part of the plaintiff testified to the charge being made, to which the defendant gave no denial; two other witnesses on the part of the defendant testified to the making of the charge, and that it was followed by an instant and explicit denial by the defendant. In speaking of the occurrence at the plaintiff’s house, the judge instructed the jury, that if the plaintiff charged the defendant, on that occasion, with committing the assault, and he, at the same time, denied it, then it furnished no evidence against him; but if he remained silent, when so charged, the jury might regard it as an admission that he was guilty, or give it such weight as they thought it entitled to; that .there were some doubts from the evidence, whether the charge, after it had been once made and denied, was repeated on that occasion; and if it was repeated, whether the defendant then remained silent.. To these instructions no exception was taken. The judge' then explained the nature and principles of such evidence, and stated to the jury, on this *Part of the case, that they w:ould not probably conclude that the defendant, after he had once emphatically denied the accusation, was called upon to deny it again, if repeated; but the court would leave it to the jury to give such weight to his silence, when the charge was repeated, if it was repeated, as they thought it entitled to, under the rules which had been stated as. to. the effect of remaining silent. To this part of the charge the defendant excepted. The exception can only raise the question, whether in view of the evidence in the case, it was error, to leave it to the jury to give such weight to the defendant’s silence, if they found the charge to have been repeated, _ after once being emphatically denied, as they thought it entitled to, under the rules which had been stated as to the effect of remaining silent. This was not error, unless the judge was called upon to charge, as a legal proposition, under the proof in the case, that the defendant’s silence, on a repetition of the charge, after having once denied it, furnished no evidence against him. Undoubtedly, if a party, in a given interview and conversation, is repeatedly charged with the commission of an act, and he denies it unequivocally once, he is not called upon to repeat the denial, in order to avoid the inference of an admission of its truth against him; but if the charge be made at distinct times, and under different circumstahces, and in the presence of different persons, though he may have denied it at one time, his silence under accusation at another time, and under other circumstances, is a proper circumstance to be weighed by the jury. At least, the court is not called upon to instruct the jury, as matter of law, that they are to infer nothing- against him from his silence.

In this case, the evidence would have justified the jury in finding that the charge was made and denied in the presence of Warner and Spencer, about the commencemont of the appraisal, and some three-quarters of an hour before Tripp- and Jewett came in, and that the conversation had ceased, before the latter arrived; and that after the arrival of Tripp and Jewett, the charge was repeated, in their presence. As a matter of fact, therefore, there ■were two distinct conversations, in the presence of different persons and *under different circumstances, though on the same day, in which the charge was ■' made. I am very clear, that had the judge instructed the jury, as matter of law, that they were to give no weight to the silence of the defendant, when the charge was .made in the presence of Tripp and Jewett, because it had . been fully and distinctly denied in a prior conversation, and substantially a different interview, that it would have been error. The judgment of the supreme court should , be affirmed.

Judgment affirmed. 
      
      
         On the trial of an indictment for a capital offence, evidence of motive for the commission of the crime is always admissible. Carroll v. Commonwealth, 84 Penn. St. 107. Campbell v. Commonwealth, Ibid. 187 Hester v. Commonwealth, 85 Ibid. 189.
     
      
       The silence of one party, when the other asserts a fact, is evidence of an admission, to go to the jury; its value and weight is for them. McClenkan v. McMillan, 6 Penn. St. 366.
     