State v. Lockwood

17 Del. 76 | New York Court of General Session of the Peace | 1897

Lore, C. J.,

charging the jury:

Gentlemen of the jury:—George Lockwood, the prisoner at bar, is indicted for assault with intent to commit murder. The State in this case only asks, however, that the prisoner shall be found guilty of an assault. You are therefore relieved from any deliberations as to any intent to commit murder, if an assault was committed.

An assault is an attempt with violence to do an injury to another with the means at hand of carrying that purpose into execution.

The facts of this case are before you; you are the exclusive judges of the evidence, and are to say whether or not an assault was committed in this case. If in your judgment, from the evidence, no assault was committed upon the prosecuting - witness Cannon by George Lockwood, your verdict should be not guilty.

Even if you believe an assault was committed, upon the evidence, we have been asked to charge you as to the law in certain phases of such assault.

If the prosecuting witness, Asbury Cannon, was a mere guest at the house of Lockwood liable to be dismissed at pleasure then whenever the head of the family, which is the husband, ordered him to go out of that house and he failed to do so (it being the dwelling house of the husband and the wife and children), the head of the family, the husband, had a right to use so much force as was necessary to eject him.

If that was the condition and George Lockwood only used so much force as was necessary to eject Cannon, then we say to you that he would not be guilty of an assault in contemplation of law.

Again, we have been asked to charge you that this being the house of the wife, although Cannon might be there as a guest, yet the husband could not eject him. We are not prepared to go to that extent. This house was the dwelling in which the husband and the wife lived together with their children as one family; and while the laws of this State confer upon the wife the right to control and dispose of her own property, in many respects as if she were a femme sole, yet that fact does not affect the rights or powers of the husband as the head of the family. He is still the head of the family, and so far as the family relation is concerned the law has hot inverted the order and made the wife such head; the husband represents the head of the family still, with all the rights appertaining thereto, not otherwise modified by law.

Commonwealth vs. Wood, 97 Mass., 229.

So that if you believe that they were dwelling in this house as man and wife, and this prosecuting witness was a mere guest, and failed to go out of the house at the bidding of the husband, the latter had a right to use all the force necessary to eject him ; but no more. He had no right to use undue force. If a man is attacked in his own house or the house'of another, he has a right to use so much force as is necessary for his own protection,

You have all the facts in the case before you ; it is for you to say whether this defendant is guilty of assault or not guilty.

Verdict, not guilty.