This was an action of trespass m et armis by the appellant against the appellee. In the trial court appellee interposed three pleas: general issue, son assault demesne and a special plea alleging that appellant first assaulted appellee by blows upon the head with a club which so affected his mind that he was unconscious and irresponsible for his immediate subsequent acts, in inflicting upon the appellant the alleged injuries complained of. Upon these pleas issue was joined and three trials with a jury have been had thereon in the Circuit Court of Ogle County. The first trial resulted in a verdict for appellee and on motion a new trial was granted; upon a second trial appellant obtained a verdict and a new trial was granted; upon the third trial a verdict was returned for appellee, upon which judgment was rendered for costs, to reverse which, this appeal is prosecuted. We have been led to state the result of the several trials of this case in the Circuit- Court to manifest the necessity of the care required in the instructions to the jury by the trial court. The evidence in the case is quite conflicting.
The alleged errors in the trial court complained of by the appellant here are:
First: That the court erred in giving to the jury the first,
second and third of .appellee’s instructions.
Second : In refusing appellant’s ninth instruction as offered,
and in modifying the same - and giving it to the jury so modified.
Third: In allowing a portion of the deposition of one
Eakle to be read in evidence as to statements made by appellee concerning his mental condition, etc.
First. The first instruction offered by the appellee and read to the jury appears to he good as a proposition of law; but there does not appear to be any evidence on which to base it, and therefore it ought not to have been given. ’
The second of appellee’s instructions violates the rule of law laid down in Donnelly v. Harris et al., 41 Ill. 128, and Scott v. Fleming, 16 Ill. App. 540, and was, therefore, erroneous.
We perceive no objection to appellee’s third instruction given and we think it good.
Second. We think the trial court erred in riot giving to the jury appellant’s refused instruction numbered nine and also committed a further error in modifying the same and giving' it to the jury as modified.
Appellee could not call for and put in evidence his own . statements concerning the affray with appellant, or his own statements as to his mental condition at the time of such affray made at a time subsequent to the occurrence. This would be allowing him to manufacture evidence in his own behalf, which the law does not permit. It would be but mere self-serving statements at most, both in character and effect, which are not admissible as evidence, and therefore the modification of the instruction was erroneous. The instruction as offered by appellant stated the correct rule of law upon the point to which it referred, and should have been given to the jury as asked, and the trial court erred in not so doing.
It is quite unlike the statement of a testator offered to show his mental condition at the time of making a will, eto., and is not governed by the same principle as that stated in Cockeram v. Cockeram et al., 17 Ill. App. 601, and kindred eases therein cited.
. Third. The evidence contained in the deposition of Eakle as to appellee’s statements concerning his mental condition, etc., which was admitted for appellee, does not appear to have been especially objected to, and the other portion thereof was proper evidence. The answer to the twelfth direct interrogatory of the deposition referred to was only objected to in its entirety, as a whole, and a portion of the answer being proper evidence, the general objection can not be made availing.
For the reasons assigned we think there is manifest error in this record, and therefore the judgment of the Circuit Court will be reversed and the cause remanded for further proceedings not inconsistent with the views herein above expressed.
Reversed and remanded.