State v. Newland
The opinion of the court was delivered by
On the 27th day of September, 1881, an information was filed in the district court of Brown county,, charging the defendant and one Grant Harrington with an assault with intent to kill. Upon the trial Grant Harrington was acquitted, defendant found guilty of assault and bat
Another matter is this: Miles testified that when he took hold of Newland’s horse, Newland struck him, with the whip, a blow which skinned his nose. Newland when on the stand testified that he struck Miles with his whip, hitting him on the hand which was holding his horse. His counsel subse
We pass therefore to the consideration of the errors alleged with reference to the instructions. The defendant asked 22: separate instructions, all of which were refused by the court, and in lieu thereof the court of its own motion prepared and gave 17 separate instructions. Counsel call special attention to nine of the instructions which were refused. We shall not notice these in detail, but simply say in reference to many of them that, so far as they touched upon the questions of a. reasonable doubt, the presumption of innocence, the right of self-defense, and the credibility of witnesses, they seem to have been covered by the instructions given by the court; and as has been frequently held, the court is not bound to repeat instructions or to adopt the precise language prepared by
Turning to the 17th instruction given by the court, and it reads: “If defendant began the affray, and struck Miles the first blow, then he should be convicted of assault and battery; or, if he did not commence the affray, but willingly participated in a fist fight with Miles, without any endeavor to avoid him, then he is guilty of assault and battery; but if he'acted throughout only in a self-defense which was necessary, or ap
It is no defense to Newland that Miles was a willing participant in the fight, and it would be no defense to Miles if he were being prosecuted for assault and battery that Newland was also willing for the fight. Take a strong illustration: Supposing these two parties had met and blows had passed between them, and then, stopping blows, they had agreed to fight a duel with pistols, and measuring off the distance between them, each had taken a pistol and fired at the other; now whoever might have been the aggressor in the commencement of the quarrel, the willing participation of each in the duel, and the firing by each of his pistol with intent to kill, would make each guilty of an assault with intent to kill. So here, whichever may have been the aggressor when both were on horseback, the moment they jumped off and willingly engaged in a fist fight, each became guilty of an assault and battery. The instruction was right, and was appropriate to the case.
In conclusion, and upon a review of all the testimony, we think the cardinal mistake of counsel for appellant lies in their effort to show that, considering all the circumstances of the case, Miles was the most of a- wrong-doer. We think it probable that both parties were in the wrong, that each was
As the case now stands, all we have to inquire is, as to the' propriety of the proceedings against Newland. We have examined the testimony and the instructions-with care. We-see no error which seems to us sufficient to justify a reversal of the judgment; and we think upon the testimony the defendant was properly convicted of assault and battery, and therefore the judgment must be affirmed.