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ger to him of such design being accomplished. If a person has not been actually struck, he must have reasonable ground for believing that violence is to be offered to him, before he will be justified in resorting to force. In a case where defendant had committed an assault upon a person who was making no hostile demonstration towards him, evidence that such person had, prior to the assault by defendant, made hostile threats against him to others, and that such threats had been communicated to him, was excluded as constituting no defense. In an other case it was held that when a person assailed with threats and offensive language put his hand in his pocket, this did not authorize the inference by the assailant that he was about to draw a weapon, so that acts of violence committed against him were justified in self-defense.54

The rule is well stated in the leading case of Hicks vs. State 55 in the following words: "The theory of self-defense is that a party assailed has the right to repel force by force and he need not believe that his safety requires him to kill his adversary in order to give him the right to make use of force for that purpose. When his life is in danger, or he is in danger of great bodily harm, or when, from the acts of the assailant, he believes and has reasonable ground to believe, that he is in danger of losing his life or receiving great bodily harm from his adversary, the right to defend himself from such danger or apprehended danger may be exercised by him, and he may use it to any extent which is reasonably necessary. He need not believe that he can only defend himself by taking the life of

3 Cyc, 1047; Long vs. People, 102 Ill., 331; Commonwealth Vs. Mann, 116 Mass., 58; State vs. Dennison, 108 Mo., 541, 18 8. W., 926.

63 Martin vs. State, 5 Ind., Apd., 453, 32 N. E., 594.

Mitchell vs. State, 41 Ga., 527. 65 51 Ind. 407

his assailant. If the death of his assailant results from the reasonable defense of himself, he is excusable, whether he intended that consequence or not, or whether he believed such result was necessary or not."

In People vs. Guidice,50 an instruction as to the right of self-defense, that if the prosecuting witness made the first hostile demonstration in such a manner as would have justified a reasonable man, in defendant's situation, in believing that prosecutor intended to inflict upon him great bodily harm, and if acting upon these appearances and believing it necessary for his own protection, and to prevent great bodily injury to himself, defendant struck the prosecuting witness with a deadly weapon, he was justified in doing so, was held correct.

It is the duty of a person threatened with violence to use all other reasonable methods of avoiding it before he resorts to violence on his part. Before a person. is justified in taking life in his own defense it is his duty to retreat as long as retreat is practical. The old law writers used to express this by saying that it was his duty "to retreat to the wall or the ditch," i. e., until some obstruction cut off further retreat.57 But where a person is assaulted in his own dwelling it has long been an established rule of law that he is not obliged to retreat from it, but may resist force with force.58 This right

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therein. One's dwelling was
regarded as his place of refuge.
Its sanctity in this regard was
fully recognized by the law.
A man in his own house was
treated as 'at the wall,' and
could not by another's assault
be put under any duty to flee
therefrom." Lee vs. State,
92 Ala., 15, 9 So. Rep., 407.
68 Lee vs. State, 92 Ala., 15, 9 So.
Rep., 407; Palmer, vs. State,
9 Wyo., 59, Pac., 793; Wilson
vs. State, 30 Fla., 234, 11 So.
Rep., 556; DeForest vs. State,
21 Ind., 23.

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extends to a person who is assaulted on his own grounds, outside of his house 50 or in his place of business; or in the room which he rents and occupies.1 The modern tendency of the law is to extend this right to any one who is assaulted in a place where he has a right to be."2




This right of self-defense may be exercised in behalf of the members of one's immediate family, as a child, parent, husband or wife. The right also extends to the case of master and servant. The right does not exist where the party aided was the aggressor.07

A person may also use force for the protection of his property. 68 The force used in such cases, must not be excessive; and in general the right in such cases is much more restricted than in the case of defense of one's person. A person who has requested a trespasser to leave his premises, or premises over which he has the right to control, may, upon the refusal of the trespasser to leave such premises, use all force reasonably necessary to eject him.70 If the owner of the premises uses unnecessary force " in ejecting the


Beard vs. United States, 158 U. S., 550; Haynes vs. State, 17 Ga., 463; State vs. Cushing, 14 Wash., 527, 45 Pac., 145. Roberts vs. State, 68 Ala., 156. Harvis vs. State, 96 Ala., 24,

11 So. Rep., 255.
"When a person, being without
fault and in a place where he
has a right to be, is violently
assaulted, he may, without
retreating repel force by force,
and if, in the reasonable exer-
cise of his right of self-defense,
his assailant is killed, he is
justifiable." Runyan vs. State,
57 Ind., 80.

63 Commonwealth vs. Malone, 114
Mass., 395.
"Waddell vs. State, 1 Tex. App.,

720. Vol. IV-4.

65 State vs. Bullock, 91 N. C., 614. 06 Orton vs. State, 4 Greene., 140. 67 State vs. Johnson, 75 N. C., 174. 68 Whartons vs. People, 8 Ill. App.,

232; Commonwealth vs. Beals, 133 Mass., 396; Atkinson vs. State, 58 Nebr., 356, 78 N. W., 621.

69 Carter vs. Sutherland, 52 Mich., 597, 18 N. W., 375.

70 Green vs. Bartram, 4 C. & P., 308, 19 E. C. L., 400; Hammand vs. Hightower, 82 Ga., 290; Commonwealth vs. Clark, 2 Metcalf, 23, Long vs. People, 102 Ill., 331; American and English Annotated Cases, Vol I, note p. 888.

"1 Abt. vs. Burgheim, 80 Ill., 92.

trespasser, or attacks him after he has left the premises," he is guilty of a battery.

Either a private individual or an officer may use proper force in making an arrest, or in preventing the escape of a criminal." In general, whoever is delegated to execute any public duty has the right to use whatever force may be necessary for the carrying out of such work.

Railway officials have the authority to use what force may be necessary for preserving order on trains and in railway stations, and for enforcing the rules of the Company, but excessive force cannot be used. Thus a passenger may properly be ejected from a train for refusal to pay his fare;" but the forcible expulsion from a railway train of a passenger, although wrongfully on the train, before the train is brought substantially to a standstill, is an assault, for which the conductor so ejecting him is both civilly and criminally liable.75

The forcible restraint of a madman is not a battery; but such person must be dangerous before another is justified in restraining." A person is not guilty of a battery who tries to help a drunken man."

Parents have the right to inflict moderate punishments upon their children without being liable for a battery." This right extends to those in loco paren


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tis," and in a more limited degree to school teachers.80 This right does not belong to ministers or priests.81 It has been held that the superintendent of a poorhouse has the right to inflict moderate personal punishment upon the immates of the house,82 but the tendency of modern law is towards the restriction of such right. Masters of ships, while at sea, also have the right to inflict moderate correction upon their sailors, in order to preserve the discipline of the ship.""

Finally, ordinary contact with another in a crowd, or a mere touching in earnest discourse, or to attract attention for a lawful purpose,85 or contact in any lawful game, or similar kinds of contact with the body of another, do not constitute batteries.


Circumstances may arise where each of two persons may have an action for assault and battery against the other. This may happen where two persons are engaged in an unlawful act, as a prize fight; or where a person who is wrongfully assaulted repels the attack with an unnecessary degree of force, and thus becomes a trespasser himself as to such excess.80

70 Snowden vs. State, 12 Tex. App., 105, 41 Am. Rep., 667; Gorman vs. State, 42 Tex., 221.

80 "A schoolmaster has, in general, no right to punish a pupil for misconduct committed after the dismissal of school for the day, and the return of the pupil to his home, yet he may, on the pupil's return to school, punish him for any misbehaviour though committed out of school which has a direct and immediate tendency to injure the school or subvert the master's authority." Lauder vs. Slaver, 76 Am. Dec., 156. Misspelling a word and refusing to try

again, will not justify a severe punishment by a teacher. Gardner vs. State, 4 Ind., 632. 1 Donnelley vs. Territory (Ariz., 1898), 52 Pac., 368.

8 State vs. Neff, 58 Ind., 516.
83 United States vs. Wickham, 1

Wash. (U. S.), 316, 28 Fed.
Cas. No. 16, 689.

Turbervell vs. Savage, 2 Keb.,

85 Coward vs. Baddeley, 4 H. & N., 478.

80 "In such an altercation both parties are in the wrong and both, it has been held, can maintain an action against the other, the party originally as

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