Stetlar v. Nellis. injury or the disease is attended with injury to other parts, or other diseases have developed themselves, for which there is no established mode of treatment. But when the case is one as to which a system of treatment has been followed for a long time, there should be no departure from it, unless the surgeon who does it is prepared to take the risk of establishing, by his success, the propriety and safety of his experiment. The rule protects the community against reckless experiments, while it admits the adoption of new remedies and modes of treatment only when their benefits have been demonstrated, or when, from the necessity of the case, the surgeon or physician must be left to the exercise of his own skill and experience. The judgment is right and must be affirmed. [FOURTH DEPARTMENT, GENERAL TERM, at Syracuse, May 1, 1871. Mullin, P. J., and Johnson and Talcott, Justices.] STETLAR vs. NELLIS. While it is well settled that in an action for assault and battery, evidence of acts done or words spoken by the plaintiff long before the cause of action arose, is inadmissible for the purpose of showing provocation and mitigating the damages, yet when such acts or words are a portion of a series of provocations frequently repeated, and continued down to the time of the assault, they may be proved. Accordingly held that evidence of the speaking and uttering, by the plaintiff, at various times before the assault complained of, of the same slanderous and insulting words in reference to the defendant, and within his hearing, which were alleged to have been spoken at the time the assault was committed, was admissible. OTION by the plaintiff to set aside an inquisition in an M OT an action for assault and battery, in which the plaintiff obtained a verdict for six cents damages. Stetlar v. Nellis. J. Genter, for the plaintiff. P. G. Webster, for the defendant. JACKSON, J. This motion is based upon two grounds: 1st. That a man duly summoned as a juror was discharged by the sheriff at the private suggestion of the defendant; and, 2d. That evidence was improperly received, of provocation given by the plaintiff a long time prior to the assault which was the subject of the action. The first ground is not sustained by the evidence. The sheriff testifies that Conklin, the person referred to, was not summoned as a juror, and that no request or suggestion was made by the defendant, or his attorney, that he should be discharged or that he should not be summoned; and the defendant and his attorney both make affidavit that they made no such request or suggestion. This evidence overcomes that presented by the plaintiff in support of the allegation. The facts in regard to the other ground of the motion are these: The defendant testified, upon the inquisition, that at the time of the assault, and before he struck the plaintiff, the plaintiff charged him with stealing, and used other insulting and abusive language. This was denied by the plaintiff, and thus the evidence in relation to such alleged provocation was conflicting, and it became a question for the jury to determine whether or not such provocation was given by the plaintiff. While it is well settled by the case of Lee v. Woolsey, (19 John. 319,) and several other cases, that evidence of acts done, or words spoken by the plaintiff long before the cause of action arose, is inadmissible for the purpose of showing provocation, and mitigating the damages; yet where such acts or words are a portion of a series of provocations frequently repeated, and continued down to the time of the assault, they may be proven. (Richardson v. 5525 6L 99 Stetlar v. Nellis. Northrup, 56 Barb. 109.) As was said by Justice FOSTER, in this case: "Each successive repetition of the provocation must necessarily become more annoying and exciting, and although there may be no motive, or spirit of revenge, on the part of the defendant, the excitement at each repetition of the provocation becomes more intense and unbearable, and, in my judgment, presents a much stronger case of mitigation than when the actionable words were uttered (the action was slander) upon the first provoca tion which he receives." The defendant had a right to assume, for all the purposes of the trial, that the jury would find in his favor upon the question whether the alleged provocation was given at the time of the assault, and, upon such assumption, he also had the right, by the authority of the case just cited, to show that such provocation was one of a continued series, commencing a long time before. The evidence objected to was of the speaking and uttering by the plaintiff, at various times before the assault, of the same slanderous and insulting words, in reference to the defendant, and within his hearing, which were alleged to have been spoken at the time the assault was committed. Such evidence was properly received. Motion denied, with costs. [FULTON SPECIAL TERM, November 27, 1871. Jackson, Justice.] THE PEOPLE vs. JOHN REAGLE. The office of a writ of certiorari, in a criminal case, issued under the provisions of the Revised Statutes, after trial and before judgment, is only to bring up the indictment, the proceedings on the trial, and any bill of exceptions that may have been taken; and it presents for review only the questions arising on the indictment and bill of exceptions. In criminal cases, exceptions can be taken only on the trial, and to the rulings of the court as to the admission or rejection of evidence, or upon other questions presented on a trial before a jury, and not in any case to the judgment or order of the court upon a demurrer. The remedy for an erroneous decision upon a demurrer is, in civil cases, by appeal; and in criminal cases, by writ of error. The presiding justice at the oyer and terminer has no authority to discharge a jury, in the absence of his associates, whose presence is necessary to constitute a court of oyer and terminer. The only thing which the presiding judge is authorized to do, in the absence of his associates, touching the business of the oyer and terminer, scems to be to take recognizances and bail. Per TALCOTT, J. Where the jury, in a criminal case, after the cause was tried and submitted The effect of modern decisions is, that irregularities whereby a lawful verdict Where the jury, after the cause was committed to them, and before they had By the common law, husband and wife cannot be witnesses for each other. The provisions of the Code of Procedure do not apply to proceedings under the criminal law. And the act of 1869, (ch. 678,) allowing persons charged with crime to be witnesses in their own behalf, relates only to the party charged with crime. Hence, upon the trial of an indictment, the prisoner's wife is an incompetent witness for him. 60 527 13h 267 17h 49% 22h 284 The People v. Reagle. ERTIORARI to the Erie oyer and terminer. The pris CERTI oner was tried and convicted in that court in June 1871, upon an indictment charging him with the offense of arson in the first degree. When the district attorney moved the trial of the indictment, upon the issue previously joined, on the defendant's plea of not guilty, the prisoner interposed a special plea in bar of further trial upon the said indictment, in which he insisted that no further proceedings ought to be had or taken against him on said indictment, because he alleged that on the 19th of December, 1870, at the city of Buffalo, at a court of oyer and terminer duly and legally constituted, the defendant was put upon his trial on the said indictment, and a jury was in due form of law drawn, empanneled and sworn to try the said issue. And the defendant averred that the aforesaid indictment was the same and no other, and the felony therein charged was the identical felony, which the district attorney moved to prosecute; and that the said John Reagle was the same and no other. That the jury was drawn, empanueled, charged and sworn to try the issue in said indictment, which charged the same identical felony, and was in truth and fact the same identical indictment which the district attorney, in the name of the people, now prosecuted against the said John Reagle, and no other or different indictment. And the defendant alleged that testimony on the part of the people, and on the part of the prisoner, was in due form of law given on said trial, and the court in due form delivered its charge to the jury, and the jury thereupon, in the custody of a sworn officer, retired to deliberate upon their verdict. That thereafter, and after the jury had been deliberating several hours, the said presiding justice being upon the bench, caused the jury to be brought before him, and in the absence of the justices of the sessions, the clerk of the court, and of the prisoner and his counsel, who had no knowledge thereof, the said |