No. 11 | New York Court of General Session of the Peace | Sep 21, 1904
Under the decisions of this Court the Justice is not permitted to testify to such statements.
Pennewill, J., charging the jury:
Gentlemen of the jury:—In this case Margaret Dyer is charged with having committed, in the month of June last, in this county, an assault and battery upon Christopher Greer.
It is conceded on both sides that Forester Avenue opposite-Greer’s home where the assault is alleged to have been committed,, is a public highway. And we say to you that a public highway is open in all its length and breadth to the reasonable, common: and equal use of the public on foot or in vehicles.
Where one traveling in a vehicle undertakes to pass another in-the public highway he must take reasonable care to exercise that: right so as not to injure another. But if a traveler be resisted or attacked by another while traveling along the highway, such traveler has a right to use such force as may be reasonably necessary to defend his person or property from such attack.
If you believe from the testimony that the defendant departed from the public highway upon the occasion in question, and drove upon the private property of Greer, and in passing struck the prosecuting witness as alleged, and that said act was not in necessary defense of her person or property, she would be guilty of the offense charged.
Where there is a conflict of testimony it is your duty to reconcile that conflict if you can. If you cannot reconcile it, you must give credit to such testimony as you believe under all the circumstances is most entitled to credit.
Having stated to you what constitutes the offense of an assault and battery, and also the law as it relates to the highway, so far as this case is concerned, it is now for you from the evidence before you to determine whether the defendant is guilty of the assault and battery, or not guilty. If after a careful consideration of the evidence there is a reasonable doubt in your minds as to the guilt of the defendant, that doubt should inure to the benefit of the accused.
Verdict, not guilty.