89 Me. 74 | Me. | 1896
Indictment for assault and battery. Tbe defendant was convicted below. .He excepts to two several extracts from tbe judge’s charge, viz:
I. “Well, no matter how slight this may be, if it amounts to a wanton motion, an angry motion, coupled with the ability at the time, and under the circumstances to do harm, it is an assault, and if carried into effect, it is a battery, assault and battery; but it is indifferent which one it is, because they are both punishable, and are practically the same thing.”
This instruction is erroneous inasmuch as it omits the element of intent. The motion may be wanton, made in an angry manner, coupled with an ability to do harm, and yet no harm be intended, and if harm should result may be from pure accident.
II. “But a man should never resort, to violence in self-defense until necessary. It is a man’s duty, as a good citizen, to preserve the peace; and when he finds he is in danger of being attacked in any way, it is his duty as a good citizen to try every other means, first by retiring, withdrawing from the scene, or by remonstrance, or by calling in assistance ; but still, whenever the emergency is so quick, and the danger is so present that there is no time left for anything of that kind, that you can’t withdraw in season, and if you think you are liable to be hit in the back if you do withdraw, or are liable to be hit before an officer' comes up, and a remonstrance will do no good, then in self-defense of your person and in self-respect,-you are authorized to strike the first blow in order to prevent an assault on you.”
That a man when assaulted be required to cowardly flee from
Exceptions sustained.
