It is objected to (he conviction — 1st. That the original assault was not committed by the defendant. 2d. That the misconduct of the defendant’s witnesses entitled him to a new trial. 3d. That the punishment should have been fine or imprisonment; and that botli fine and imprisonment cannot be inflicted for this offense. 4th. That there is no sufficient description of the person upon whom the injury was committed.
In respect to the first objection, it is to be observed that in order to make a previous assault upon the defendant by (lie witness a justification for that committed by the defendant upon him, it must appear that the striking by the defendant was in his own defense, and was in proportion to the attach made. Son assaidt demesne is no excuse if the retaliation by the defendant be excessive and bcar.no proportion to tlie necessity or provocation received; and it will bo matter of evidence whether the retaliation by the defendant was excessive a.nd out of all proportion to the necessity or provocation. (2 Stark. Ev., 40; 1 East., C L., 400; 1 Russell on Cr., 610.) It was for the jury, therefore, to determine from the evidence whether the resistance of the defendant to the assault of the witness (if It was an assault, under the circumstances, for him to put the defendant out of tlie house) was excessive and disproportionate to the necessity. I-Iaving done so by their verdict, we see nothing in tlie evidence to induce us to disturb it. While the law (it lias been said) permits men to defend their persons, it is careful to restrain the indulgence of an ungovernable and revengeful spirit. And the jury may have believed, and justly, that the violence of tlie defendant was not employed for his own defense merely, but for the gratification of a wicked, malevolent, and revengeful spirit. If ¿he evidence justified this belief — and we are not prepared to say that it did not — the previous assault of the witness, as we have seen, afforded no justification or excuse to the defendant.
The alleged misconduct of defendant’s witnesses is shown only by an affidavit made by himself and another on the day after the trial. It does not state that the defendant could not prove the same facts by others present. (8 Mis. R., 606.) But if it did, it ought to have been accompanied by tlie affidavit of the witnesses, showing the facts to which they would testify; or if their affidavits could not he procured, that fact should have been made to appear. (Madden v. Shappard, 3 Tex., R.; Edrington v. Kiger, ante, 89.) The affidavit does not disclose sufficient matter to have justified the court in awarding a new trial. When the absence of the witnesses was discovered, the better course would have been immediately to have moved the court for a continuance or postponement of the trial to enable tin; party to obtain the attendance of his witnesses. If they were regularly snbpoomted, he might have taken an attachment against them and thus compelled their attendance. The court, in its discretion", if the justice of the ease seemed to require it, would doubtless have granted tlie application. When a party lias announced himself ready for trial, it is in general too late to move for a continuance. (1 Browne R., 240; 8 Johns. R., 437; 1 Penn. R., 280; 2 Id., 713.) But where he is surprised by the unauthorized withdrawal of his witnesses after the trial lias commenced, tlie better practice seems to he then to apply for a continuance or postponement of tlie trial; and should tlie court unadvisedly refuse the application, such refusal "might he made the ground of an application for a new'trial. (2 Bailey R. 576; 1 Id., 25; Id., 545 ; 4 Day R., 471; 3 Wend. R., 377.)
The objection to the assessment by .tlie jury of tlie punishment is not, it is conceived, well founded. It was for the jmy to determine from the evidence the character of the assault. They found it of an aggravated character, and proceeded to assess the punishment under the 58th section of the act of 1848, (p. 229,)which provides that if the offense be of an aggravated nature, upon con-victiou the offender may be punished by fine not exceeding $200 and imprisonment not exceeding six months.
Note 52.—Gardenheir v. The State, 6 T., 348; Givens v. The State, 6 T., 344; Reynolds v. The State, 11 T., 120; Norton v. The State, 14 T., 387; Johnson v. The State, 17 T., 515; The State v. Lutterloh, 22 T., 210. Note 53.—Grain v. Griffis, 14 T., 358; Musquez v. The State, 41 T., 226.As to tlie remaining objection to the conviction, tlie description of the person injured, certainty to a common intent in this respect is, it is said, all that the law requires; and if the description he sufficiently explicit to inform the prisoner who are. his accusers, the indictment may be supported. (1 Chit. Cr. L., 211.) Ii a party be known by one name as well as another, he may.be described by either, (Id.. 240;) as where an indictment for stealing laid the property stolen as belonging to Steven Harris, and it appeared that the name of the owner was Harrison, but he was sometimes called Harris, it was held to be no variance, (1b., n. a; 1 Overt. R., 434.) If the party here was known by two names, ho was well described by either. But if his name was Francis Hubble., as from the statements of facts it appears to be, it was correctly stated in the first instance, and the subsequent statement of it, in which the apparent variation occurs, was unnecessary, aud may be rejected as surplusage. In the subsequent statements it was sufficient to have used the Christian name only, or to have referred to the name by the use of a pronoun. (1 Chit. Cr. L., 216, 217; 4 Pick. R., 252.) We are of opinion that there is no error in the judgment, and that it be affirmed.
Judgment affirmed.