State v. Brittingham

80 A. 242, 25 Del. 330, 2 Boyce 330, 1911 Del. LEXIS 42

• Court: New York Court of General Session of the Peace
• Decided: February 8, 1911
• Docket: No. 3
• Status: Published

Opinion

Conrad, J.

charging the jury:

Gentlemen of the jury: — You have been impaneled to try the case of State u. William T. Brittingham, who is charged with an assault and battery upon the person of one George Wilson, on the twenty-first day of May, 1910. We regret very much that a case of this kind should take up the time of the court and the jury. It has developed that this whole matter grew out of a dispute between neighbors over a small piece of land, or a boundary line. It ought never to have come in this court, but is a matter that I thin! you, gentlemen of the jury, will agree with me, should have been settled by reasonable people in a reasonable and proper way. The matter of the dispute is not for your determination, but the question that you are to determine is as to the guilt or innocence of one William T. Brittingham, who is charged with assault and battery.

[2] An assault is an unlawful attempt with violence to do injury to the person of another, and a battery is the actual accomplishment of such attempt.

[3] Where one is assaulted, or thinks he is about to be assaulted, it is his first duty to get out of the way or retreat, if he can; if he cannot reasonably do that, he may use just so much force as is necessary to stay the act of violence- against him or to protect his life or his person from injury. If he use more force than is necessary for that purpose, then he becomes the aggressor and is himself guilty of an unlawful assault.

[4] In this case it is admitted by the state that the accused, Brittingham, believed that he was on his own land.

When one is a trespasser on another’s land, the person owning the land is justified in ejecting the trespasser, but he must do it in a proper and reasonable way, and is only justified in using what force is reasonably necessary in order to remove the person from his land.

[5] There is in this case some conflict of testimony, and the law as laid down in this state is that where there is a conflict in the testimony it is the duty of the jury to reconcile such conflict if they can — and the conflict may arise either with respect to acts from which the fact of the assault may be proved, or with respect to acts from which the intent of the assault may be inferred. If you cannot reconcile the testimony, you should then accept such of it as you consider, under all the circumstances, is most worthy of credit and belief, having regard to the ignorance or intelligence of the witnesses, their interest or bias, and the opportunity which they bad of observing and knowing the things respecting which they testified. In order to convict the prisoner, it is incumbent upon the state to prove, beyond a reasonable doubt every material ■ ingredient of the crime charged. In every criminal case the accused is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt.

The matter of self-defense claimed in this case is really involved in the first point I made in regard to whether or not the defendant was in danger of personal injury, and that is a matter for your determination. The facts are entirely for your determination; the court is merely laying down to you the law governing the case. The facts you must reconcile and from those facts make up your verdict, and we want that verdict to be the conscientious conclusion of your judgment, after a full and fair determination of the facts as they have been shown from the witness stand. Verdict, not guilty.