#### Christian H. Stucker v. Edward T. Thompson.

Gen. No. 13,731.

Assault and battery—what sufficiently justifies. An assault is justified where made in self-defense, it appearing that the plaintiff in the action charging assault and battery was himself the first aggressor, and the sufficiency of the defense of self-defense is not affected by the fact that the defendant testified that he was at all times confident of his ability to defend himself against the assault of the plaintiff.

Assault and battery. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1907.

Reversed and remanded.

Opinion filed March 6, 1908.

Charles S. Williston, for plaintiff in error.

Charles E. Zollars, for defendant in error.

Mr. Justice Smith

delivered the opinion of the court.

Defendant in error, plaintiff helow, had judgment in an action for damages for an alleged assault upon him by plaintiff in error, for two hundred dollars.

*146The testimony in the record shows that Thompson was a janitor and had been employed at an apartment building over which Stucker was superintendent. After working a few weeks Thompson left his position on January 11, 1901, without giving any notice of his intention to leave, and without making any provision for the heating of the building in which many families were then living. The fires went out and the building was cold, and the first information Stuclcer had of the situation of affairs came to him through the complaints of the tenants.

About two weeks after he left his work Thompson went to Stacker’s office to collect for the time he- had worked, and after being invited into an inner office room by Stucker, they had a short conversation about Thompson’s leaving his work. Thompson states that Stacker knocked him down several times and kicked him.

Stacker testified that he asked Thompson: “How could you Avalk off and leave these people Avithout any heat, Avithout saying a word or notifying me, no heat, no Avater ?” and that Thompson replied: “Why, you--, what do you mean by sending a man up there to take my place ?” Stacker testified that he took hold of the door handle and aslced Thompson to leave; Avhereupon Thompson attempted to strike him, and he struck Thompson; that Thompson got up and attempted to strike him again; that each time Thompson hit him, Stacker struck Thompson in the face, and that Thompson repeated the same vile name several times; that he tried to be polite, but Thompson made seAreral attempts to strike him.

In the course of his oral charge to the jury, the trial judge said:

“Now under the law, the plaintiff is entitled to recover in this case because there is-no defense here shoAvn, and the defendant himself said he Avas in no fear of immediate danger. When a man is struck by another, the party struck is alloAved to defend himself under the laAV if he is in danger of receiving serious injury, to prevent any personal bodily *147injury upon himself. In this case I think the defendant testified lie had no such fear.”

The court, in its charge virtually took the case from the jury as to all issues except the amount of damages to be assessed against Stacker. The charge assumes that Stacker committed the trespass. The jury were told that the plaintiff Thompson was entitled to recover upon the evidence. This was manifest error; for if the jury believed the testimony of Stacker, Thompson was the aggressor from the beginning, striking the first blow, and repeatedly returned to the attack after he had been repulsed by Stacker, who had a right in law to defend himself against an attack by Thompson. As said in Bittinger v. Druck, 33 Ill. App., 301, in reversing the judgment: “Whether the plaintiff or the defendant was the first aggressor was a question presented to the jury by evidence of a very conflicting character, and the question should have been submitted to the jury by the instructions of the court. * * * The point of contention was whether defendant in closing with the plaintiff was acting in self-defense against a prior assault of the plaintiff. The evidence may have convinced the jury that Druck 'was the first offender, but the charges of the court directed them in substance, that they need pay no attention to that circumstance.”

The whole theory of self-defense wras excluded from the consideration of the jury by the charge of the court. “The question of how much force a person may use in self-defense, and what he may do, is a question of fact for the jury, and not one of law for the court.” Hulse v. Tollman, 49 Ill. App., 490.

Another serious error in the instruction is that the court selected one statement of Stacker as the basis for charging the jury that the plaintiff was entitled to recover, and did not correctly remember and did not state the testimony accurately. Stacker stated that he had no fear of bodily injury from Thompson and was not afraid of him. This might be, and from the context of his testimony probably was; because Stacker felt and believed he could successfully *148defend himself against Thompson’s attacks. It did not necessarily mean that “he was in no fear of immediate danger,” as stated by the court. What the witness intended to state and what was the fact, was a question for the jury, and should have been left to the jury.

For the errors in the charge to the jury the judgment is reversed and the cause is remanded.

Reversed and remanded.