3 Minn. 270 | Minn. | 1859
By the Court
The'Defendant below, Charles B. Gallagher, was convicted in the District Court of Bamsey county of an assault and battery upon one Bailey, and sentenced by the Court to pay a fine of fifty dollars and costs. There was some evidence on the trial, tending to show that Bailey committed the first assault, by raising his cane as if to strike the Defendant. One witness, Thompson, testified among other things, that “ Bailey gave Gallagher the lie, and high words
The Counsel for the Defendant asked the Court to charge the jury as follows, to wit: “ that if the jury believe from the evidence, that Mr. Bailey previous to, and at the time the blow was struck by Gallagher, had his cane raised for the purpose of striking Mr. Gallagher, and that Mr. Gallagher reasonably supposed that he was about to be struck by said Bailey with said cane, he had a right to strike Bailey as he did, before receiving any blow from said Bailey.” The Court refused the instruction and the Defendant excepted.
We see no error in the refusal of the Court to instruct in the language requested by the Counsel for the Defence. In substance, the charge requested was, that if the jury believed that Bailey committed an assault upon the Defendant, and was abortt to commit a battery, that then the striking was justifiable. This may, or may not be true — it is not necessarily so. The difficulty is, that it makes the Court the judge of the degree of force used by the Defendant to prevent the battery, whereas, that is a matter of fact for the jury. 'Had the instruction Requested been so worded as to have submitted this fact to the jury, it would have been error to have refused it. Every assault will not justify a battery; and whether the degree of force used by the Defendant was justified by the occasion, is a question to be determined on the evidence. (Phil, on Ed., Yol. 5, p. 204.
The Court also charged the jury, “that when any party is approached by another with a cane raised in a hostile manner the party thus approached is not justified in striking unnecessarily, but is bound to retreat reasonably before striking any blow.”