State v. Wood

1 S.C.L. 351

Opinion

By the Court,

unanimously. The general rule of law is, “ that wherever the assault or battery proceeds from the “ plaintiff or prosecutor’s own fault, as where he gives the “ first blow, &c. there it is sufficient justification to the de-ei fendant.” But there must be, however, in all cases, some proportion between the battery given and the first assault. For Lord Holt lays it down as a rule, that the meaning of the plea son assault is, that the defendant struck in his own defence. Esp. 389. So that the degree of resistance ought to be in proportion to the nature of the injury offered ; that is, that it be sufficient to ward off such injury, and no more. For the moment a man disarms or puts it out of the power of the aggressor from doing him further injury, he ought to desist from using further violence ; and if he does commit any further outrage, he, in his turn, then becomes the aggressor. In Salk. 642. a question was, what assault was sufficient to maintain such a plea ? Lord Holt said, that Wyndham, J. would not allow such a plea, if it was an unequal return. His lordship then says, that for every as« sault he did not think it reasonable that a man should be hanged xvith a cudgel. That a small blow will not justify an enormous beating, &c. That the meaning of the plea was, that the defendant struck in his own defence. And of the same opinion were all the judges on this occasion, and verdict was against the defendant accordingly.