Commonwealth v. Ruggles
88 Mass. 588
Mass.
1863
Check Treatment
Bigelow, C. J.

The rulings were right upon both the points raised at the trial.

1. The officers of an agricultural society have no authority to define and fix bounds, within which no one can be permitted to enter except in conformity with the regulations prescribed by them, for the purpose of exhibiting horses or establishing a racecourse or trotting ground. The power conferred on them is a statutory one, and it must be exercised within the exact limits prescribed by law. By Gen. Sts. c. 66, § 11, this authority to set apart a particular place from which persons may be rightfully excluded can be used only for the purpose of securing a sufficient extent of land “ for the erection of their cattle-pens and yards, and for convenient passage ways to and about the *590same, and also for their ploughing matches and trials of working oxen.” This clearly does not embrace the power to designate a place for a purpose such as the defendants were attempting to carry out, when the assault was committed on the prosecutor. Nor was this the only excess of authority of which they were guilty. They had no right to include a highway within the bounds set apart by them for their exhibition, so as to obstruct the public travel thereon. This is expressly prohibited by Gen. Sts. c. 66, § 13. The facts proved at the trial show that they did undertake to exclude persons from a portion of the road, and to appropriate it to their exclusive use. It is not a sufficient answer to say that there was sufficient room for public travel on the highway outside of the limits included within their lines. They had no authority to exclude public travel from any portion of the way.

2. The prosecutor was not liable to arrest by the defendants. It is true that the officers of the society had the same authority to act in the preservation of the public peace as constables. Gen. Sts. c. 66, § 14. But a constable cannot lawfully arrest an offender against the peace without a warrant, unless he is actually engaged in an affray or unlawful disturbance in the presence of the officer who makes the arrest. To authorize such arrest, the misdemeanor must be committed in view of the officer. 1 Hale P. C. 587. 1 East P. C. 303. 1 Chit. Grim. Law, 20. Under the instructions of the court, the jury have found that the prosecutor was guilty of no misdemeanor which rendered him liable to arrest. These instructions are not open to exception. They included a correct statement of the distinction between acts which would be unlawful and constitute a breach of the peace, and those which were innocent and occasioned no illegal disturbance. A person is not guilty of a criminal assault and battery who, without malice or unlawful design, and with no intent to cause injury, either by accident or in self-defence or through inadvertence, inflicts a blow upon the person, or does any other act which tends to produce corporal hurt to another. The definition of an assault is, an attempt or offer with force and violence to do injury to a person either from malice or *591wantonness; and a battery is where an injury is actually inflicted under such circumstances. 1 East P. C. 406. When there is an absence of all malice and of any intent to inflict injury, a party cannot be said to be guilty of an assault or breach of the peace, so as to be liable to immediate arrest without a warrant.

Exceptions overruled