| Mass. | Mar 15, 1849
This was an indictment for an assault and battery upon one Cornelius Mahoney, with a bullet discharged from a revolving pistol. The government offered evidence to show that Mahoney was in the passage way, along the side of the defendant’s house, in the evening, and that while there, the defendant came from his house and ordered him away. He refused to go, and the defendant took a stick and beat him with it, saying, “ I will make you go away.” The stick broke, and the defendant then went into his house, and came out with a pistol, which he aimed and discharged at Mahoney, who thereupon declared that he was shot. Mahoney was taken to a watch-house, and examined by a physician, who found some swelling in the groin, and a piece of skin of the size of a five cent piece apparently torn off; but could find no ball, nor find with a probe the trace of any.
The defendant put in evidence tending to show that Ma-honey exposed his person to the defendant, at his front door, and committed a nuisance upon his premises; and the defendant contended, that he was attracted to the door by a stone or stick thrown against it, and that, opening the door, he found Mahoney committing the nuisance complained of, and ordered him three times to go away ; that Mahoney did not move, and the defendant thereupon seized a broom and struck him, and broke the broom, and then took a part of the handle and thrust it at him, standing on his own premises; and that returning into the house, he took a pistol in his hand, but did not discharge the same.
The judge of the municipal court instructed the jury, that the facts proved were no justification of the assault and battery. This was manifestly erroneous, as, by this instruction, the court took into its own control, and decided both the facts and the law, and withdrew the whole case from the consideration of the jury ; whereas the facts should have been submitted to the decision of the jury, with instructions from
The jury should have been instructed, that if they found that the defendant did discharge the pistol, which was denied by the defendant, loaded with a bullet, at Mahoney, such an act, so commonly dangerous to life, would not be justified by the acts of Mahoney complained of; that if they should find that he did not discharge the pistol, but only used the broomstick, then whether the defendant had not good reason for using force, or whether such force was appropriate in kind and suitable in degree, to accomplish the purpose.
There were other exceptions taken by the defendant to the rulings of the court below, which the court has not particularly considered, and upon which they do not think it necessary to express any opinion, though no valid objection is perceived to those rulings.
The exceptions are sustained, the verdict set aside, and the case remanded to the municipal court for further proceedings.