State v. Roe

103 A. 16, 30 Del. 95, 7 Boyce 95, 1918 Del. LEXIS 19

Opinion

Pennbwill, C. J.,

charged the jury in part:

It may be of some assistance to you if the court shall tell 3rou what evidence you should consider and what you should not consider. We will therefore say that }rou should not pay the slightest attention to anything that Martin said to Roe, or that Roe said to Martin before Roe struck Richards.

The question you are to determine is not whether either Martin or Roe used improper and offensive language, the one to the other, but whether Roe was justified in striking Richards. That is all. No words that Martin may have spoken to Roe could have justified an assault on Martin, and much less could the}'’ have justified an assault on Richards.

It is not shown that Richards said anything at all to Roe, but it is claimed that Richards struck Roe on the arm before Roe struck him. You have heard the testimony on that point.

[1-5] The state contends that the evidence shows that Richards did not touch Roe, and if j'ou believe that, then there was manifestly no excuse or justification for the assault committed by Roe on Richards and your verdict should be guilty. And even if you believe from the evidence that Richards struck Roe first, Roe would nevertheless be guilty unless you are satisfied that he struck Richards in self defense. This leads us to speak of the law of self-defense. And we instruct you that no one has the right to strike or assault another unless he is at the time in danger of suffering bodily harm at the hands of the other. Mere words or threats, however offensive, will never justify even a slight assault, neither will a slight assault justif}'- a person in using more force or violence than is necessaiy to protect the person from bodily harm. And, moreover, if one is assaulted and can safely withdraw and thereby avoid danger, it is his duty to do so. He has no right in self-defense to strike back unless there is no other way of avoiding danger to his person.

The defendant admits that he struck Richards. He also admits that Martin did not strike or attempt to strike him, and 3^et he, the defendant, endeavored to shake him, and that Richards then struck him on the arm. If you believe this then we sas^ that Roe had no right to strike back unless that was the only way he could avoid injury to his person. If he was in such a position that he could avoid such danger by withdrawing or stepping back, it was his duty to do so, rather than retaliate for a slight blow on the arm, if you believe there was such a blow.

Verdict, guilty with recommendation to mercy.