Wilken v. Exterkamp
Court of Appeals of Kentucky
Case 23 — PETITION ORDINARY APPEAL PROM KENTON CIRCUIT COURT. 1. Evidence as to son assault demense is not admissible, unless such assault be set up by the defendant. Newman’s Pleading and Practice, 531; 2 Chitty's Pleading (Am. Ed.), 501; Rogers v. Wajts, 44 Me., 245. 2. If the party first assaulted uses excessive force beyond, what is necessary for self-defense he is liable for the excess.
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Case 23 — PETITION ORDINARY APPEAL PROM KENTON CIRCUIT COURT. 1. Evidence as to son assault demense is not admissible, unless such assault be set up by the defendant. Newman’s Pleading and Practice, 531; 2 Chitty's Pleading (Am. Ed.), 501; Rogers v. Wajts, 44 Me., 245. 2. If the party first assaulted uses excessive force beyond, what is necessary for self-defense he is liable for the excess. Dole v. Herskin, 35 N. H., 503; Filbrick v. Foster, 4 Ind., 442; Gaither v. Blowers, 11 Md., 536; Dean v. Taylor, 11 Exch., 68; 6 Wait’s Actions and Defenses, 644 and 647. 3. Under the provisions of sec.…
1Opinion of the Court
JUDGE PAYNTER
delivered the opinion of the court.
The appellant, Herman Wilken, sought to recover damages of the appellee, Henry Exterkamp, for an assault and battery. The appellee’s plea was not guilty. Evidence was offered by the defendant tending to show that the plaintiff had first assaulted appellee. Appellee did not plead son assault desmesne, therefore, he was not entitled to prove that the appellant had first assaulted him. As there was not a plea of justification, the court erred in authorizing the jury to find for thie defendant, if the assault was made in self-defense. The burden was…
2Cited by6 opinions
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- Hardin v. HodgesCourt of Appeals of Texas · 1903
- Louis P. Hyman & Co. v. H. H. Snyder Co.Court of Appeals of Kentucky · 1914
- Pollard v. VandivirCourt of Appeals of Kentucky (pre-1976) · 1930
- Schachleiter v. WatsonCourt of Appeals of Kentucky (pre-1976) · 1929
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