From the judgment of the trial court, and the denial of his motion for a new trial, he has appealed, and has assigned as errors: (1) The court erred in not permitting the defendant to prove that deceased bore the reputation in the community in which he lived of being a violent and dangerous man. (2) The court erred in not permitting the defendant to prove uncommunicated threats made by deceased. (3) The court erred in not charging fully the law of justifiable homicide. (4) The court erred in not charging on every theory of the case presented by the evidence. (5) The court erred in overruling defendant's motion for a new trial.

The evidence in this case shows that some time before 7 o'clock a. m. on the 27th day of December, 1906, the deceased, Jose Maria Herrera, came to the house of Cirprina Cortez, in the town of Morenci, and called the defendant, Tomas Jaime, to come out and bring his gun with him, that he had one too. Then the defendant got his gun and went out to where the deceased was waiting, and they both went off together directly through the town of Morenci toward the place where defendant was employed, and over the road that he traveled each day to and from his work. Deceased and defendant each had a pistol, and a miner's candle stick, and each carried his lunch can in his hand. One witness testified that the two men were going along together when he saw the deceased make a grab for the defendant; that he had a miner's candle stick in his hand, and made a motion like he was going to hit the defendant, and defendant jerked out his pistol and shot him. After the shot was fired a number of parties attracted by the noise looked in the direction from whence it came, and saw the defendant fire two more shots at deceased. The defendant testified that the deceased had threatened to kill him, and, while armed, had offered a party $5 if he would bring defendant out of the house on a certain occasion. The defendant admitted the killing, but claimed that he did it in self-defense.

The first assignment, that "the court erred in not permitting the defendant to prove that deceased bore the reputation of being a violent and dangerous man," is urged upon the ground that, "where any evidence tends to show that the defendant acted in self-defense, the reputation of the deceased can be put in issue, for the reason that, where the circumstances of the killing were such as to leave any doubt whether the defendant had been actuated by the principle of self-preservation rather than that of malice, it would be proper to admit any testimony calculated to illustrate to the jury the real motive by which he had been actuated." State v. Ellis, 30 Wash. 369, 70 Pac. 963; 1 Wigmore on Evidence, 63, 246. The record, however, fails to show the exclusion of the evidence, but, on the contrary, shows that the defendant testified at length on this subject, and stated that he did not know either the reputation in the

community or the character of the deceased as to being a quarrelsome or dangerous man, and, after defendant's counsel had exhausted the subject, the court followed with searching leading questions that would not have been permitted counsel, with the same result. Certainly the defendant had the benefit of the full limit permitted by the most liberal construction of the law in this particular. The only adverse ruling of the court on this subject was the refusal to admit testimony of a witness as to the general reputation of deceased after the defendant had so testified, upon objection urged that, as defendant did not know such general reputation, the testimony was immaterial. There being no conflict in the evidence as to the circumstances of the killing, the testimony of the witnesses for the defense that the deceased was the first aggressor being uncontradicted, as was likewise that of the witnesses for the prosecution that after the first altercation the deceased had declined further combat before the fatal shot was fired, the ruling was correct.

The second assignment, that "the court erred in not permitting the defendant to prove uncommunicated threats made by the deceased," is not supported by the record. The only citation given in counsel's brief are two instances wherein testimony was admitted, and a careful examination of the entire testimony as presented in the reporter's transcript discloses no ruling of the court excluding any testimony of this character that was offered.

The third and fourth assignments of error are too general to be entitled to notice under rule 7 of this court (71 Pac. viii), but in consideration of the gravity of this case we have examined the charge of the court, and not only find that it correctly states the law of the case, and sufficiently and fully charges the law of justifiable homicide, but that the counsel for the defendant did not request any further or fuller instructions on that feature of the case at the time of the trial.

The fifth error assigned is the order denying the motion for a new trial, based upon the ground that the verdict was contrary to the law and the evidence, and in support of this the counsel for the appellant urges in his brief the insufficiency of the evidence to sustain the verdict and judgment. Four witnesses whose attention had been attracted by hearing the first shot testified that deceased was attempting to run from defendant, who was following him, and that, after the second shot that was fired by defendant while eight or ten steps in the rear, the deceased staggered and fell, and that when defendant, following the deceased, came up to his body, he fired the last shot into the body as it lay upon the ground. The surgeon who examined the wounds immediately after the occurrence, and again after the death of deceased, testified that two wounds made by one bullet were found in one arm, one bullet

entered the hip, and that one bullet entered the back near the spine, and came out in front just below the ribs, and was the cause of death. This furnishes ample evidence to support the verdict and judgment under the rule to which we have invariably adhered, that this court will not disturb a verdict or finding based upon conflicting testimony where the record discloses any substantial evidence in support thereof.

The judgment of the lower court is affirmed.

KENT, C. J., and SLOAN and CAMPBELL, JJ., concur.

(11 Ariz. 401)

HARDIKER v. RICE.

(Supreme Court of Arizona. March 27, 1908.) APPEAL-ASSIGNMENTS OF ERROR-SUFFICIEN

CY.

Assignments of error that the court erred in the admission and rejection of evidence offered by plaintiff, duly excepted to, and in the reception of evidence over his objection, duly excepted to; that certain findings are inconsistent with, and not based upon, the evidence; that the findings do not cover certain questions submitted to the court about which evidence and proof was offered; that under the findings the conclusions of law should have been in plaintiff's favor, whereas they were made and entered in defendant's favor; that the evidence is insufficient to sustain certain findings of fact as made; that the evidence does not sustain the judgment rendered; and that upon the whole record and findings and evidence the judgment should have been for plaintiff, whereas it was for defendant-are too indefinite.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2997-3001.]

Appeal from District Court, Cochise County; before Justice F. M. Doan.

Action by George Hardiker against Ben Rice. From a judgment for defendant, plaintiff appeals. Affirmed.

D. L. Cunningham and George B. Watson, for appellant. E. E. Ellinwood and A. C. Lockwood, for appellee.

PER CURIAM. The appellant has made the following assignment of errors: First, in the admission and rejection of evidence by him offered, duly excepted to, and in the reception of evidence over his objection, duly excepted to; second, because certain of the findings of fact are inconsistent with, and not based upon any, evidence offered in the trial of said action; third, because the findings of fact do not cover certain questions submitted to the trial court about which evldence and proof was offered; fourth, because under the findings of fact as made the conclusions of law should have been in favor of the contestant and against the contestee, whereas they were made and entered in favor of the contestee, and against the contestant; fifth, because the evidence is insufficient to sustain certain findings of fact as made; sixth, because the evidence, taken altogether,

does not sustain the judgment rendered; seventh, because upon the whole record and findings of fact made and evidence the judgment of the court should have been in favor of appellant and against appellee, whereas it was by the trial court rendered thereon in favor of appellee and against appellant.

The appellee makes objection that the errors assigned are all general and indefinite. The objection is well founded. The assignments of error are not sufficiently specific to enable us to review them, and are of the same character as those which we have in repeatVed decisions of this court refused to consider. The rules relating to assignments and specifications of error have been so long in force, and we have so often decided that a failure to make proper assignments amounts to a waiver of all errors which are not fundamental, that it would seem there should be no longer occasion for disregard of these plain requirements. Rules Supreme Court, 8 Ariz. iv; Marks v. Newmark, 3 Ariz. 224, 28 Pac. 960; Christy v. Arnold, 4 Ariz. 263, 36 Pac. 918; Ward v. Sherman, 7 Ariz. 277, 64 Pac. 434; Charouleau v. Shields (Ariz.) 76 Pac. 821; Daniel v. Gallagher (Ariz.) 89 Pac. 412; Prescott Nat. Bank v. Head (Ariz.) 90 Pac. 328; Liberty Mining & Smelting Co. v. Geddes (Ariz.) 90 Pac. 332.

No fundamental error appearing upon the face of the record, the judgment of the district court is affirmed.

(11 Ariz. 283)

IAEGER v. METCALF. (Supreme Court of Arizona. March 27, 1908.) 1. DAMAGES-ASSESSMENT BY JURY.

The general rule as to the award of damages for personal injuries is that where, from the nature of the damages, these are not susceptible of definite proof, they must be left to the sound judgment and discretion of the jury, but where the damages are susceptible of definite proof, the jury is restricted to such proof in ascertaining the amount thereof.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, § 533.]

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Damages, § 533.]

3. ASSAULT AND BATTERY-CIVIL LAW-DAMAGES-INSTRUCTIONS.

In an action for assault and battery, an instruction that the jury in estimating damages may consider bodily and mental pain, loss of time, diminished capacity for labor, etc., if the evidence shows these circumstances to exist, and that "it is not necessary that the amount of damages resulting from the personal injury should be proven by witnesses, but is to be determined by you from your own general knowledge and experience," is erroneous, in that the quoted phrase, while properly applicable to bodily and mental pain, was inapplicable to the other elements of damage mentioned.

4. APPEAL REVIEW - PREJUDICIAL ERRORINSTRUCTIONS.

Where an instruction is erroneous in directing that the jury may award damages for injuries susceptible of definite proof as well as for injuries not susceptible of such proof, in accordance with their general knowledge and experience, it cannot be said to be harmless, where it cannot be discovered from the verdict whether the jury did or did not allow anything for the injuries susceptible of definite proof, and the instruction contained the only statement of law as to compensatory damages given.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4219-4230.]

Facts which will justify an award of exemplary damages must be pleaded in the complaint either expressly or by necessary implication, and averments of actual damages, without charging that the injury was wanton, malicious, gross, or outrageous, is an insufficient pleading to sustain an award of exemplary damages. [Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, §§ 420, 421.]

7. ASSAULT AND BATTERY-EXEMPLARY DAMAGES-SUFFICIENCY OF COMPLAINT.

A complaint charging the defendant with having made an attack on plaintiff without just cause or provocation, and while the latter was occupied with his ordinary duties, and with having struck him in the eye with false knuckles, thereby inflicting a serious injury, sufficiently charges a wanton and malicious assault, and entitles the jury to award exemplary damages, since it is a rule that one is presumed to intend the natural and probable consequences of his act.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 4, Assault and Battery, §§ 25-35.]

8. SAME SELF-DEFENSE-PLEADING.

In an action for assault and battery, the defense of self-defense to be available must be pleaded specially, and cannot be shown under the general issue.

[Ed. Note. For cases in point. see Cent. Dig. vol. 4, Assault and Battery, §§ 27, 28.]

Appeal from District Court, Pima County; before Justice Campbell.

Action by Isaac Metcalf against L. J. F. Iaeger, for personal injuries sustained by an assault and battery. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

Frank H. Hereford, for appellant. Worsley & Drachman, for appellee.

SLOAN, J. The complaint in this action charges that the plaintiff, Metcalf, during the year 1906, worked for defendant, Iaeger, as cook in the latter's hotel in the city of Tucson, and further, quoting the language of the complaint, "that on or about July 10, 1906, while the plaintiff was engaged in the performance of his duties as cook under said contract, and without cause or provocation, the defendant made an attack upon the plaintiff, striking the plaintiff in the eye with false

knuckles, knocking him down, and otherwise beating and bruising this plaintiff, causing the loss of one of the plaintiff's eyes, and causing him to suffer great physical pain and anguish, and further causing him the loss of two months' time, and causing him to incur liabilities for medical attendance in the sum of $200, in the effort to save the said eye." The complaint alleges that as a result of the assault plaintiff suffered general damages in the sum of $15,000, and prays judgment for that amount. The answer of the defendant consists of a general demurrer and a general denial. The cause was tried to a jury, which returned a verdict awarding plaintiff, Metcalf, the sum of $1,537.50. The court entered judgment in favor of Metcalf and against Iaeger in accordance with the verdict. Thereupon Iaeger moved for a new trial, which was denied. From the order overruling the motion and from the judgment, Iaeger has appealed.

The assignments of error relate to instructions given, and to certain instructions requested by appellant and refused by the trial court.

Counsel for appellant complains of the following instruction: "The court instructs the jury that, if you find for the plaintiff under the instructions heretofore given you, you will allow such damages as seem to you to be right and proper under all of the facts and circumstances in evidence. In estimating the damages you have a right to consider bodily and mental pain, if any, loss of time, if any, caused by the assault, if any, and his diminished capacity for labor, if any, resulting directly from defendant's wrongful acts, if the evidence shows these circumstances to exist. You may also take into consideration the surgical bills, if any, which the plaintiff has incurred. It is not necessary that the amount of damages resulting from personal injuries should be proven by witnesses, but it is to be determined by you from your own general knowledge and experience. The damages spo ken of are known as 'actual damages."" In its application to bodily and mental pain the instruction was unquestionably sound. As said by the Supreme Court of the United States in the case of the City of Panama, 101 U. S. 464, 25 L. Ed. 1061: "When the suit is brought by the party for personal injuries, there cannot be any fixed measure of compensation for the pain and anguish of body and mind, nor for the permanent injury to health and constitution; but the result must be left to turn mainly upon the good sense and good judgment of the tribunal assigned by law to ascertain what is a just compensation for the injuries inflicted." The general rule as to the award of damages for personal injuries by the jury may be stated in this way: Where, from the nature of the damages, these are not susceptible of definite proof, they must be left to the sound judgment and discretion of the jury; but where the damages from their

nature are susceptible of definite proof, the jury is restricted to such proof in ascertaining the amount thereof. Thus it has been held that, where the damages claimed are based upon loss of time in plaintiff's employment, he must establish by competent evidence the value of such time or facts from which such value may be estimated with reasonable accuracy. Staal v. Grand St., etc., Railroad Co., 107 N. Y. 625, 13 N. E. 624; Winter v. Central Iowa R. Co., 74 Iowa, 448, 38 N. W. 154. Such elements of damages as physician's, surgeon's, and nurse's bills and hospital expenditures occasioned by the injury, being susceptible of proof, must be estimated and allowed only when these may be ascertained by the jury with reasonable accuracy from the evidence. Bowsher v. Chicago, etc., Railroad Co., 113 Iowa, 16, 84 N. W. 958; Brown v. White, 202 Pa. 297, 51 Atl. 962, 58 L. R. A. 321. In a broad sense it is never true that a jury may estimate damages without regard to the evidence. Even where the jury is permitted to exercise judgment and discretion as to the amount, such judgment and discretion must be based upon facts and circumstances proven in the case. The jury were properly directed in the instruction as to the several elements of damage which they might consider, but it is nowhere specifically pointed out that they were to be guided by the proof as to the amount they might award for such damages as loss of time and surgeon's bills to that shown by the evidence the plaintiff to have suffered. We think, therefore, the plain import of the instruction is that it lay in their sound discretion to award damages in any sum within the amount sued for which they might determine from their general knowledge and experience was suffered by the plaintiff, and that this discretion might be exercised in ascertaining the amount which should be awarded plaintiff as to any element of damage specified in the instruction.

We are aware that the precise instruction complained of has been approved by the Court of Civil Appeals of the state of Texas in Knittel v. Schmidt, 40 S. W. 508. The holding in this case, however, does not comport with other decisions by the same court. Railroad Co. v. Greenlee, 62 Tex. 351; Railway Co. v. Simcock, 81 Tex. 504, 17 S. W. 47; Houston E. & W. T. Ry. Co. v. Richards, 20 Tex. Civ. App. 203, 49 S. W. 687. It was held in Railroad Company v. Curry, 64 Tex. 87, that it was error to instruct the jury in estimating the damages to consider the time lost by the plaintiff by reason of his injuries, in the absence of any evidence, except such as was vague and indefinite, showing such loss of time and the value thereof. We think that the instruction complained of contained error in stating that it was unnecessary that the amount of damages resulting from personal injuries should be proven by witnesses without qualifying this general rule by limiting it in its application to bodily and mental pain,

which the plaintiff may have suffered, and that it is an incomplete statement of the law in failing to distinguish between those elements of damage which must be left to the sound judgment and discretion of the jury, and those, such as loss of time and surgeon's bills, which must be definitely proven and found with reasonable certainty from the evidence in the case. We cannot say that the instruction was harmless, as suggested by counsel for appellee. There is no evidence in the record as to any loss of time further than that the severity of the injury might be reasonably supposed to have occasioned such loss, and no evidence of the value of such time. We have no means of knowing, from the verdict, whether the jury did or did not allow anything for loss of time, nor whether they were guided by the evidence in ascertaining and allowing, as part of the recovery, the amount under the claim made for surgical expenses, as testified to as having been incurred. As the instruction complained of contained the only statement of the law with regard to the measure of compensatory damages which might be allowed, we think the instruction contained reversible error.

In an instruction properly worded and, considered apart from the pleadings, not subject to criticism, the court told the jury that, if they found "that if the injury inflicted by the defendant was wanton, malicious, and committed in reckless and willful disregard of the rights of plaintiff," exemplary damages might be allowed in case the compensatory damages returned might not be sufficient in the judgment of the jury "to punish the defendant and serve as a warning to others." This instruction is complained of upon the ground that the complaint did not set forth the facts which would authorize an award of exemplary damages. It was held in Day v. Woodworth, 13 How. (U. S.) 363, 14 L. Ed. 181, that at common law what are called exemplary, punitive, or vindictive damages, where the injury has been wanton, malicious, gross, or outrageous, may be awarded by the jury. See, also, Philadelphia, Wilmington & Baltimore Railroad Co. v. Quigley, 21 How. (U. S.) 202, 16 L. Ed. 73; Barry v. Edmunds, 116 U. S. 550, 6 Sup. Ct. 501, 29 L. Ed. 729. The facts which will justify an award of exemplary damages must, however, be pleaded in the complaint, either expressly or by necessary implication. Averments of actual damage, without charging that the injury was wanton, malicious, gross, or outrageous, is an insufficient pleading to sustain an award of exemplary damages. Houston & T. C. Railroad Co. v. Baker, 57 Tex. 424; Samuels v. Richmond & D. R. Co., 35 S. C. 493, 14 S. E. 943, 28 Am. St. Rep. 883; Sullivan v. O. R. & N. Co., 12 Or. 392, 7 Pac. 508, 53 Am. Rep. 364. The rule thus announced that exemplary damages will not be awarded unless sustained by proper averments in the complaint is not universal, but

we think comports with what is said by the Supreme Court of the United States in the case of Barry v. Edmunds, supra. The propriety, therefore, of the instruction as to exemplary or punitive damages, depends upon whether the complaint makes out a case by express terms or necessary implication which would warrant such damages. If it shows the assault to have been wanton and malicious, or aggravated by deliberate violence, we think it is sufficient in that regard. Scott v. Donald, 165 U. S. 58, 17 Sup. Ct. 265, 41 L. Ed. 632. Bearing this rule in mind, the question is presented, does a complaint which charges the defendant with having made an attack upon the plaintiff without cause or provocation, and while the latter is occupied with his ordinary duties, and with having struck him in the eye with false knuckles thereby inflicting a serious injury, sufficiently charge a wanton and malicious assault, and one characterized by deliberate violence? This question we think should be answered in the affirmative. To charge one with attacking another and striking him implies that the act was willful, and negatives the idea that it was the result of carelessness, or of accident, voidable or otherwise. When the charge be further made that a blow or blows were administered by means of an instrument or weapon calculated to inflict a great bodily injury, the intent to so injure is accentuated in the complaint. One is presumed to intend the natural and probable consequences of his act, and, if the act be shown to be intentional, in criminal law this presumption is a conclusive one. Therefore the language of the complaint, taken as a whole, implies that the defendant committed a willful assault upon plaintiff without cause or provocation, and therefore without justification or excuse, and, because of the nature of the instrument used, with a deliberate design and purpose to inflict a serious bodily injury, and that he did actually inflict such injury. All the elements of wantonness, malice, and deliberate violence are therefore present, if not by express averment, yet by proper implication from the facts alleged. The complaint, therefore, is sufficient to sustain the award of exemplary damages, and the giving of this instruction was without

error.

It is further assigned as error by the appellant that the court erred in refusing to charge the jury on the subject of self-defense as a justification of the assault, and to give an instruction covering that subject requested by counsel for appellant on the trial. The authorities are uniform that, in a case of this character, to entitle a defendant to an instruction on the subject of self-defense as a justification for an assault, such justification must be pleaded as a special defense; the rule being that a general denial is insufficient to admit evidence or to warrant the issue of self-defense being raised in any way as a justification for the assault. Hathaway

v. Hatchard, 160 Mass. 296, 35 N. E. 857; Blake v. Damon, 103 Mass. 199; Thomas v. Werremeyer, 34 Mo. App. 665; Boles v. Pinkerton, 7 Dana (Ky.) 453.

For the error in the instruction first considered the judgment is reversed, and the cause remanded for a new trial.

KENT, C. J., and DOAN and NAVE, JJ.,

concur.

(12 Ariz. 16)

PEREZ et al. v. TERRITORY. (Supreme Court of Arizona. March 27, 1908.) CRIMINAL LAW-TRIAL-MISCONDUCT OF ATTORNEY.

Defendants not having elected to testify in their own behalf, and not having placed their character in issue in a prosecution for assault to rape, the assistant district attorney in his opening argument called attention to the faces and countenances of the defendants, stating: "Crime is stamped on their faces and countenances. Their faces and countenances indicate that they are just the kind of people that commit crime. Their hard criminal faces and countenances are conclusive evidence of their guilt, and the only evidence of their guilt you need to convict them. Now I want you to look at that face [pointing to defendant P.] and see if it is not the kind of face that would commit a crime like this." Defendant objected, and the court replied: "I will leave the matter for you to reply to in your argument. The district attorney is within his rights." The court denied an instruction directing the jury not to consider such statements, and the district attorney further stated: "I want you, gentlemen of the jury, to be the judges of whether their faces and countenances are not criminal as I have stated. I will leave it to your judgment." Held, that such statements, in effect affirmed by the trial judge, were prejudicial error.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1674.]

Appeal from District Court, Graham County; before Justice Frederick S. Nave.

Marcos Perez and another were convicted of assault with intent to rape, and they appeal. Reversed and remanded.

W. C. McFarland and J. M. McCullom, for appellants. E. S. Clark, Atty. Gen., and George H. Crosby, Asst. Dist. Atty., for the Territory.

DOAN, J. Marcos Perez and Eusabio Arbeso were indicted on the 29th day of October, 1907, for assault with intent to commit the crime of rape upon one Jesus Delgado. Upon a plea of "not guilty" they were tried jointly to a jury in the district court of Graham county, and on a verdict of guilty they were sentenced to imprisonment in the territorial prison. From the judgment of conviction and the order denying the motion for a new trial, the defendants appeal.

It is claimed by the appellants that the court erred in overruling defendants' objections to abusive language of the assistant district attorney in his opening address to the jury, and that the court further erred in denying defendants' motion to direct the jury