Commonwealth v. Clark , 43 Mass. 23 ( 1840 )

Shaw, C. J.

It was contended in behalf of the defendant, that the complainant, Briggs, had no right by law to commit a battery on the defendant, in order to remove him from his premises. But the difficulty of maintaining this position in point of law is this; that every touching of another’s person, wilfully or in anger, without his consent, is technically a battery, unless justifiable. But if justifiable, then it is not necessarily either a battery or an assault. 5 Dane Ab. 584. Whether the act, therefore, in any particular case, is an assault and battery or a gentle imposition of hands, or application of force, depends upon the. question whether there was a justifiable cause. It would, there fore, be absurd to say it cannot be justifiable because it is a battery. But the true questions, we think, are, 1st. whether the party justifying had a good reason for using force; and if so, 2d. whether such force was appropriate in kind, and suitable in degree, to accomplish the purpose.

It is well settled that a person may, after requesting another to remove from his premises, and his refusal to do so, use force for the purpose of removing him. Com. Dig. Pleader, 3 M. 16. 17. Weaver v. Bush, 8 T. R. 78. As the kind and degree of force, proper to remove a trespasser, must depend upon the conduct of the trespasser in each particular case, the question whether it was suitable and moderate in any particular case, is a question of fact to be left to the jury. In the present case, there was some contrariety in the statement of the several witnesses, who testified to the transaction. The court were requested to instruct the jury that if the act of Briggs was, in their opinion, a battery, it was not a proper kind of force to be used to remove the defendant from his premises, and so would be the first assault, and justify the defendant. But the court could not properly give this instruction; because, whether it was a battery or not, depended on the question whether it was suitable in kind and degree to accomplish his justifiable object. If it be said that a “battery,” in this prayer for an instruction, was not used in its technical sense, but intended striking, or the violent infliction of blows, then the instruction was, in effect, given as prayed for, by the instruction that Briggs could justify no application of force which was not suitable, in kind and degree, to the occasion.

We are of opinion that the instructions were correct and were expressed with accuracy and caution, and with the necessary qualifications, and were conformable to the rules of law.

Exceptions overruled, and judgment on the verdict.