
    R. F. Allen & Saml. Allen v. T. J. Spidwell.
    Trial — Assault and Battery — Concluding Argument by Attorney — Burden of Proof.
    An answer to an action for assault admitted the same, but justified it upon the ground) that it was done in defense of his son, who had been assaulted by plaintiff. Held, that as the defendant had the burden of proof, he was entitled to the concluding argument to the jury.
    APPEAL EROM MCCRACKEN CIRCUIT COURT.
    May 13, 1871.
   Opinion oe the Court by

Judge Peters:

No objections were made, and no exceptions were taken to the instructions given to the jury, and while we might regard the verdict against appellant as high, we would not feel authorized on that account, to reverse the judgment of the court below and award a new trial.

The only question to be considered, then, is whether the court below erred in refusing to permit the attorney of appellant, B. E. Allen, to conclude the argument to the jury.

Samuel Allen put in no defense to the action, and as to him the jury had nothing to do but to inquire of damages.

B. E. Allen in his answer admitted the assault and battery alleged against him, but justified upon the ground that he did it in tbe defense of his son, who was assaulted by appellee, and was in danger of death, or great bodily barm.

L. D. Husbands, for appellants.

Bigger & Moss, for appellee.

By sub-section 6 of section 347, O. 0., it is declared that tbe party having the burden of proof, shall have tbe conclusion of the argument to tbe jury.

IJpon tbe pleadings tbe plaintiff below was entitled to a judgment without tbe introduction of any evidence, and might introduce it to show tbe extent of tbe injury received by him to increase the damages, but tbe burden of proof was evidently on the appellant and that entitled him to tbe conclusion of tbe argument before tbe jury.

And for tbe error of tbe court below in refusing him upon bis motion to conclude tbe argument to the jury tbe judgment must be reversed, and tbe cause remanded for a new trial and for further proceedings consistent herewith.  