In trespass for assault and battery, evidence of threats to do the plaintiff bodily harm made by the defendant before the alleged assault, or so immediately after it as to constitute a part of the transaction, is competent.
The record of the conviction of either party, under a plea of not guilty, upon an indictment for the assault, is not competent evidence.
CARPENTER, J.
Evidence of the defendant's threats to do the plaintiff bodily harm made before the alleged assault was competent. Morrow v. Moses, 28 N.H. 95. Evidence of similar threats made so immediately after the assault as to constitute a part of the res gestae was likewise competent. In the absence of any statement to the contrary, it must be presumed that such was the character of the subsequent threats in question. If they were so remote in time as not to form a part of the principal transaction, it was the defendant's duty to make the fact appear in his bill of exceptions. Whether, in case it had so appeared, the evidence was competent upon the question of damages, or upon any other question, need not be considered. Bixby v. Dunlap, 56 N.H. 456 Newman v. Goddard, 3 Hun 70; Handy v. Johnson, 5 Md. 450; 2 Gr. Ev., s. 94.
The record of the plaintiff's conviction does not show that he pleaded guilty (Burgess v. Burgess, 47 N.H. 395, Green v. Bedell, 48 N.H. 546), and was properly rejected. Chamberlain v. Carlisle, 26 N.H. 540; Hayward v. Bath, 38 N.H. 179, 183, 185; Bradley v. Bradley, 11 Me. 367; 2 Stark Ev. 196, 197; 1 Gr. Ev., s. 537.
There was no error in the instructions to the jury (Ahearn v. Mann, 60 N.H. 472), or in the denial of the motion to set aside the verdict. Tyler v. Stevens, 4 N.H. 116; Folsom v. Brawn, 25 N.H. 115, 123; Belknap v. Wendell, 36 N.H. 250.
Exceptions overruled.
BLODGETT, J., did not sit: the others concurred.