State v. Paxson

99 A. 46, 29 Del. 249, 6 Boyce 249, 1916 Del. LEXIS 33

• Court: New York Court of General Session of the Peace
• Decided: November 21, 1916
• Docket: No. 23
• Status: Published

Opinion

Boyce, J.,

charging the jury, in part:

[1] An assault is an attempt, or offer, by violence, to do hurt or injury to another, with a present ability to carry the intention into effect.

[2] The intent with which an assault is made need not be a specific purpose to do a particular injury, wantonness or mere recklessness being sufficient. To constitute an assault there must be a present ability to carry the unlawful intent into effect, such, at least, as to reasonably put the person against which it is directed in fear of injury, unless he retreat.

[3] It is not essential that the person charged with making the assault should be within striking distance of the person assaulted. Irideed to constitute an assault there need be no actual contact of the person, if the physical force or violence put in motion is such as to create a reasonable apprehension of physical injury.

[4] The jury having considered the case for sometime in their room, sent the following query to the court:

“The jury wish to know if a man is guilty of assault when he shoots at a trespasser at night after calling to him and receives no satisfactory answer?”

Being directed so to do, the jury returned to the court room, when the court instructed them that a mere entry or trespass upon the lands or private way of another, however wrongful it may be, will not justify or excuse resort to the use of a deadly weapon, or, indeed, the use of any more force than is reasonably necessary to drive the intruder off. The means which one may employ in defense of his house, or against the felonious taking or destruction of his property need not be considered.

Verdict, guilty of assault.