Alexander ex rel. Alexander v. Blodgett, 44 Vt. 476

Alexander ex rel. Alexander v. Blodgett

44 Vt. 476 | Vt. | 1872

The opinion of the court was delivered by

Wheeler, J.

The plaintiff had a right to absolute security against any attempt to violate her person. Any invasion of that right was unlawful, and if proceeded with so far as to interfere with her person was actionable. The county court seems to have stated the law applicable to assaults generally, and to the cases used for illustrations, correctly. If the rule stated had been properly applied to the evidence in this case there would have been no error. The rule laid down would mate any attempt to do grievous bodily harm, so as to pj4t the person justly .in fear of it, an assault. There cannot well be a more grievous personal injury to a virtuous woman or girl than that which the testimony of the plaintiff tended to show that the defendant attempted to her. No attack upon such a woman or girl could well be made that would put her more in fear. In one part of the charge the court appears to have said that if the defendant merely exposed his person and went towards the plaintiff, supposing it was in accordance with her wishes, and laid hands on her, supposing it was not against her wishes and desire, that would not amount to any assault there. If the defendant' exposed his person and'went toward the plaintiff in her. sight at all, it was unlawful. If he did so when he was near enough, *480or proceeded in that manner till he got near enough, to her to indicate a purpose to violate her person, and to justly put her in fear that ho would do so, he was guilty of an assault upon her. What he supposed, about her wishes or desire would make it none the less an assaultl^nless she directly gave him the right to suppose so. Tie had no right to make any attempt in that ■ direction without her express and direct consent, and that, too, first had and obtained. If he proceeded at all without such free and full consent, it was at his own risk. Counsel for defendant claim that the next clause to the one which has been stated qualifies that one, and makes it unobjectionable. In this next clause the court appears to have said that if he did take hold of her against her wishes, it did amount to an assault and battery, and if he detained her the case is clearly made out. The first part of this clause is strictly Correct as far as it went, but it did not go so far as the plaintiff was entitled to have the court go. It would require an actual touching of her person, and there might bo an assault by an exposure of person, and such movements as to show an intention to have intercourse with her, and to make her fear that he would, without any actual contact with her person. The imposi- \ tion of the fear and the influence it would have upon her move- / ments and feelings would constitute an actionable injury to her. j But if this part of that clause had been sound and correct by itself, it was contrary to the other clause stated, and the two clauses would be different statements of the same proposition of law, one wrong and the other right. In such a case the jury would be left to take which statement they chose, and might take the wrong one, and be led into^error. The correct statement would not cure the error in the incorrect one.

In the charge as to what occurred on the second occasion, the court seems to have carried to the jury the idea that if he exposed his person, and went towards her, and she did not flee from him, it would or might be taken that she consented. She would not be bound to ^e. It might not be, or she might consider it not to be most prudent to do so. She might stay without consenting, and if she did so it should not be taken against her. The cir- ' cumstances, and among others, those of flight or failure to flee *481with the others, would only be evidence to be considered upon such proper questions that would affect the rights of the parties as these circumstances would bear upon. That the court submitted the cause to the jury upon grounds intermediate between the statements of either of the witnesses to the transactions taken alone, is not considered erroneous. The jury might credit some of the statements of either and not the whole. The facts might be found to be between the statements of them, and it was proper to state the law to the jury upon such facts. The error was in not stating the law correctly.

No error in law in the charge upon the subject of damages that requires comment is seen.

Judgment reversed and cause remanded.