| Mass. | Oct 24, 1874
The instructions in this case were erroneous in this, that they disposed, as questions of law, of those matters which properly presented questions of fact for the jury. The defendant undertook to excuse his firing his pistol and thus wounding Callaghan, who had assaulted him by throwing one or more missiles, upon the ground that he was in fear of his life, and fired in order to frighten Callaghan and deter him from further violence. He offered his own evidence to show this, and, while he did not contend that his danger was so great that he was justified in firing at Callaghan, he did contend that it justified him in firing for the purpose of frightening Callaghan, even if such firing was necessarily attended with some danger in the confusion of the brawl; and further that, being thus justified, he was not responsible if Callaghan was accidentally hit, he not having fired recklessly. The ruling of the learned judge while it admits “ that it may be true that a person may be so placed that it would be reasonably necessary for him to fire a pistol to frighten his assailant,” adds that even if so this is immaterial and has no application to the case, and further that the real question is whether the pistol ball hit the party. It treats the act of the defendant in firing as a wrong
The learned judge adds in his instructions that if a person fires a pistol to frighten another, he fires at his peril, even if he does not intend to hit, and that if he does hit, he is guilty of assault and battery. This is certainly correct if the firing be without cause that would justify his exposing the person, to frighten whom he thus fires, to danger from the use of a deadly weapon, but otherwise if such person is one making an assault so formidable in its character that in defence of himself the party assaulted may properly thus expose the assailant. Exceptions sustained.