State v. Lewis

55 A. 3, 20 Del. 332, 4 Penne. 332, 1903 Del. LEXIS 29

• Court: New York Court of General Session of the Peace
• Decided: May 18, 1903
• Status: Published

Opinion

Lore, C. J.,

charging the jury:

Gentlemen of the jury:—Howard Lewis, the defendant in this case, is charged with an assault and battery.

An assault is an attempt to do violence to the person of another with the means at hand of carrying that intention into execution. The battery is the actual infliction of the injury, however slight that may be.

If you should find from the evidence in this case that the horse which was attached to the wagon was wilfully or intentionally driven into, or forced in contact with, the person of Mrs. Lucy Hallet on the occasion which is charged in this indictment, by some person, we say to you that that would constitute an assault and battery in law.

If at the time the horse’s head came in contact with the person of Mrs. Lucy Hallett the horse and wagon were under the control and management of Howard Lewis, the defendant, then he would be the person who would be liable. He would be equally so, gentlemen, although he did not have hold of the lines or the immediate guidance of the horse and wagon, if he was there present aiding, procuring, commanding, counseling or assisting the person who had hold of the lines and who was managing the horse and wagon.

We have been asked to charge you with respect to the right of way of a foot passenger and a loaded team upon a public highway. It is conceded that the road between Middletown and Odessa is a public highway. That highway is open, gentlemen, in all its length and breadth to the reasonable common and equal use of people on foot and on horseback or in vehicles.

The law upon this question has been very clearly laid down in the case of McLain vs. Sharp, 2 Harr., 483: “Where one undertakes to pass another, he who passes undertakes to go by at his own peril, if the other carriage leaves him road enough; and even when a horse in a gig has balked or stopped on the highway, the driver of a carriage behind, wishing to pass, is bound to stop if there be not road enough left for both carriages. For although every man has a right to pass on the public road, yet he must take reasonable care to exercise that right so as not to injure another.”

Having stated to you what constitutes the offense of assault and battery, and also the law as it relates to the highway, it is now for you, from the evidence before you, to inquire whether the defendant is guilty of assault and battery or not guilty. If, after a careful consideration of the evidence, there is a reasonable doubt in your minds as to the guilt of the defendant, that doubt should innure to the benefit of the accused.

Verdict, not guilty.