McFarland vs. The State.

treatise on Criminal Law, says: "If one procures himself to be prosecuted for an offense which he has committed, thinking to get off with a slight punishment and to bar any future prosecution carried on in good faith, if the proceeding is really managed by himself, either directly or through the agency of another, he is, while thus holding his fate in his own hands, in no jeopardy. The plaintiff state is no party in fact, but only such in name. The judge is imposed upon, indeed, yet in point of law adjudicates nothing. The judgment is therefore a nullity, and is no bar to a real prosecution." Vol. 1, § 1010. It is probable, however, that if in such collusive and fraudulent prosecution the full penalty of the law for the offense has been imposed and paid or suffered by the accused, it would be a bar to a second prosecution for the same offense.

On this subject the learned circuit judge instructed the jury as follows: "If the defendant in this case procured the complaint in the case, which has been pleaded in bar, to be made by a person acting in collusion with him, or with the attorney of the defendant with the defendant's sanction, and with the expectation upon the part of the defendant of deriving some benefit from it by getting off better than by another prosecution, or thinking to avoid a prosecution which he thinks may be more serious to him, or with a design to avoid another prosecution the result of which he thinks might be more serious to him, then it is no bar." We think this instruction is a correct statement of the law. The testimony amply supports the verdict of the jury in that behalf. Thus far we find no error in the record. 2. The last sentence of the verdict "We therefore find the defendant guilty" is a mere conclusion of law from the finding that the prosecution and conviction before Justice Allen was collusive and fraudulent. It is not in any correct sense a verdict of guilty on the merits, and has no significance in the determination of the case. It was but a

McFarland vs. The State.

repetition of the ruling by the court on the trial, to the effect that a conviction of the offense charged must necessarily result from a verdict overruling the plea of autrefois convict. This brings us to inquire whether the plaintiff in error was properly convicted of the offense charged, without a trial of the issue of his guilt or innocence, when his plea of not guilty stood upon the record.

In England the rule adopted by the circuit court seems to prevail in prosecutions for misdemeanors, and it has been followed to a limited extent in this country; but the great weight of American authority is against it. We do not think the English rule rests upon any sound principle. Why a man should be held to have conclusively admitted himself guilty of an offense for which he is being prosecuted, merely because he avers that he has theretofore been prosecuted for the same offense and acquitted or convicted thereof and fails to prove it, we cannot comprehend. The verdict against him on such special plea is simply that he was not theretofore so acquitted or convicted of the offense charged. By what rule of logic or legal presumption can it be said that, because he asserts an acquittal or conviction therefor, which the jury negatives, he conclusively admits his guilt of the offense charged, or must be conclusively presumed guilty thereof? The plea of guilty before Justice Allen may perhaps be proved, when the case is tried on the merits, as an admission of the accused, to go to the jury for what it is worth like any other admission of a party against his interest; but to allow the state to repudiate the proceeding before Justice Allen, and treat it as a nullity, and still hold that the guilt of the accused is conclusively established by such proceeding, would be most illogical and unjust.

Take another view of the question. The rules governing the two pleas of autrefois acquit and autrefois convict are the same. State v. Parish, 43 Wis. 395. Now, suppose one criminally charged pleads that he has theretofore been tried

Atkinson vs. Harran.

for the same offense and acquitted. The state takes issue on the plea, and the jury find that he has not been so tried and acquitted. The utter injustice, as well as absurdity, of convicting the accused on these proceedings, without further inquiry of the crime charged, is obvious. Such proceedings fail to establish a single element of guilt. Yet the English rule demands and upholds such convictions. We adopt the opposite rule, and hold, with most of the courts of this country, that the court erred in pronouncing judgment of conviction without a trial of the issue made by the plea of not guilty. On this subject, see Whart. Crim. Pl. §§ 420, 421, 486, and the numerous cases there cited.

By the Court. The judgment of the circuit court must be reversed; but inasmuch as the issue on the special plea has been regularly determined, the cause will be remanded for a trial of the issue made by the plea of not guilty, unless different pleadings be interposed by leave of that court which will render a trial unnecessary.

See note to this case in 32 N. W. Rep. 226.- REP.

ATKINSON, Respondent, vs. HARRAN, Appellant.

March 1- March 22, 1887.

Assault and battery: Pleading: Justification: Special damages.

1. Justification for an assault and battery should be specially pleaded. 2. In an action for an assault and battery, although special damages

are not alleged, yet, if evidence thereof was admitted without ob-
jection it may be considered by the jury, and the complaint may
be considered as amended accordingly.

APPEAL from the Circuit Court for Kewaunee County.
The case is stated in the opinion.

For the appellant there was a brief by Hudd & Wigman,

Atkinson vs. Harran.

and oral argument by Mr. Wigman. They contended, inter alia, that the defendant was entitled to have the defense of his personal property considered by the jury. 2 Addison on Torts, 693; 1 Hilliard on Torts, 204-6; Cooley on Torts, 167; 3 Bl. Comm. 120; Ayres v. Birtch, 35 Mich. 501; Abt v. Burgheim, 80 Ill. 92; Green v. Goddard, 2 Salk. 641; Gates v. Lounsbury, 20 Johns. 427. The rightful owner of personal property cannot retake it from a wrong-doer by force, and the latter may justify a battery in defense of his possession. Barnes v. Martin, 15 Wis. 240; Huppert v. Morrison, 27 id. 365; Andre v. Johnson, 6 Blackf. 375.

For the respondent there was a brief by John C. & A. C. Neville, and oral argument by Mr. A. C. Neville.

TAYLOR, J. This is an action to recover damages for an assault and battery alleged to have been committed by the appellant upon the respondent. The pleadings were the complaint and an answer simply denying the allegations of the complaint. The action was commenced in a justice's court. A judgment was rendered in favor of the plaintiff in such court; and upon an appeal by the defendant to the circuit court, upon a new trial in that court, a judgment was again rendered against the defendant in favor of the plaintiff, and from that judgment an appeal was taken by the defendant to this court.

The only errors assigned by the appellant are: "(1) That the court erred in charging the jury that no justification was shown, or was attempted to be shown, by the defendant, and that the only question for their determination was the amount of damage the plaintiff had sustained. (2) That the court erred in charging the jury that the plaintiff was entitled to recover for injuries to his clothing as an element of damages."

As to the first error assigned, the evidence conclusively shows that the defendant assaulted the plaintiff, knocked

Atkinson vs. Harran.

him down, and inflicted considerable injury upon the person of the plaintiff. The defendant himself admits that he struck the plaintiff before he was assaulted by him in any way. But he claims he assaulted and struck plaintiff in order to prevent him from taking from his possession two steers which defendant then owned and had in his actual possession, and for that reason he was justified in assaulting the plaintiff. We think the appellant's evidence wholly fails to show that at the time he struck the respondent it was necessary to do so in order to protect himself in the possession of said steers; and in the second place, by his answer he had not set up any justification for his assault upon the plaintff, and was not, therefore, entitled to have such justification presented to the jury as a defense to the action of the plaintiff.

The appellant insists, however, that if, under his answer, he would not have the right to give evidence to justify his assault upon the plaintiff, still the evidence which he now claims was a justification, or which at least tended to prove a justification, was given on the trial and received without objection; and that he was entitled, therefore, to the same benefit of it as though he had set up a justification in his answer. Admitting the correctness of this claim made on the part of the learned counsel for the appellant, we are of the opinion that the learned circuit judge was right in holding that the evidence on the part of the defendant did not show any justification for the assault. Nor was it of such a character as to make it incumbent upon the court to submit the question of justification to the jury. Taking all the evidence in the case, it shows a violent and wholly unjustifiable assault upon the plaintiff by the defendant, without any pretense of necessity on his part to make it in defense of his property.

As to the second alleged error, it is true that in his complaint the plaintiff does not set out, as an item of damage,