Souther v. State ( 1885 )

White, Presiding Judge.

Ferris, the party who was assaulted, testified in substance that defendant’s carriage was in front of the hotel when he came up with his omnibus; that there was enough room for him to back his ’bus up to the front of the hotel without backing against defendant’s carriage; that when defendant, in effect, told him not to back against his carriage he did not stop. The other evidence showed that the carriage could easily have been crushed by the ’bus’s being forced back against it, and that the wheels of the ’bus were against the carriage when .defendant struck Ferris with the rock.

The charge of the court was excepted to and special instructions were requested for defendant, and were refused. The court did not charge the law with reference to the right of a party to defend his property against an act of violence offered to it. Violence does not amount to an assault when committed in defense of one’s property against the unlawful violence of another offered towards said property (Penal Code, art. 490, subdivision 6); and where force is used to prevent such violence it is for the jury to say whether it was necessary to effect the purpose (Penal Code, art. 491), or whether it was in excess of or disproportioned to the aggravation and impending danger to the property. If the intention of the defendant ivas only to protect and defend his property against threatened and impending violence, then, although unjustifiable means might have been resorted to, it was still a question for the jury to decide as to whether under all the circumstances the violence used was with intent to injure the party or for the purpose of protecting his property.

If the violence used was not with intent alone to injure Ferris, but to prevent injury or destruction of his own property, then the violence would not amount to an assault in contemplation of law. (Filkins v. The People, 69 N. Y., 101.)

An assault and battery is the use of any unlawful violence upon the person of another with intent to injure him. (Penal Code, art. 484.) If the intent was to injure him in order to prevent him from injuring or destroying defendant’s property, then defendant would not be guilty of an assault upon him, provided he only used such force as was necessary to effect such purpose.

The charge of the court did not present the law applicable to the facts, and in substance defendant’s requested instruction, which was refused, was the law, though perhaps objectionable in phraseology. At all events, it called the attention of the court to the radical defects in the charge as given, and sufficiently so to require that it should be corrected; which was not done. As stated above, the charge as given was excepted to, and, because it was erroneous in that it did not submit the law applicable to the case, the judgment is reversed and the cause remanded for another trial.

Peversed and remanded.

[Opinion delivered June 3, 1885.]