State v. . Yancey

74 N.C. 244

• Court: Supreme Court of North Carolina
• Decided: January 5, 1876
• Status: Published

Opinion

Reade J.

When the defendant drew his knife and threatened the prosecutor and started towards him, being already within five or six feet of him, this was undoubtedly an assault, and the defendant is guilty, unless the conduct of the. prosecutor made the assault justifiable.

The prosecutor, at that time was committing a trespass upon the property of the defendant in his presence, by holding on to the defendant’s saddle and claiming it as his own, and calling to another for help with the purpose of taking it by force, as the defendant had reasonable ground to believe. This conduct of the prosecutor was' not such'- as to justify an actual battery with the knife in the first instance ; but the defendant had the right to do what was necessary to make the prosecutor let go his saddle, beginning with moderate force, and increasing in the ratio of the resistance,” without measuring it in golden scales. We are not left to any speculation as to whetlier he used too much or too little force; for the result shows that he used just enough to accomplish' his purpose. If he had used more he would have injured the prosecutor. If he had used less, and allowed the prosecutor’s help to come np he would have lost his property, or engaged in an unequal eontest, with probably serious consequences.

A threat to une a deadly weapon, with the power to do it, may often be justifiable, when a battery with the same would, not be. And this is one of those cases.

There is error. This will be certified.

Per Curiam. Judgment reversed.