United States v. Salisbury

27 F. Cas. 930, 2 N.Y. Leg. Obs. 53

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: July 1, 1843
• Status: Published

Opinion

THE COURT

théreupon charged the jury that distressed American seamen, who are sent home, are bound by law to render what assistance they can in the ship’s service, while on their passage, and this, although their passage is paid by the United States. That in the present case, the order of the mate appeared to have been a proper one, and the mate had the right to call on the prisoner to do duty on shipboard, unless the captain had ordered to the contrary. That in case the prisoner refused to do duty, the officer had the right to remove or send him aft in a mild manner. That the pushing in this case did not appear to have gone beyond the line of duty on the part of the mate. The court said that they would not undertake to lay down any definite rule how near the parties must be to each other, to enable one of them to commit an assault upon the other, within the meaning of the act of congress; and with a dangerous weapon, no battery need be proved to have been committed; the assault alone was sufficient; that if the parties stood 20 feet apart, the prisoner could not have been guilty of an assault in this case, but had he held a loaded pistol or gun, and pointed it at the mate in a threatening attitude and manner, he would have been guilty of an assault within the act, even had the parties stood at a great distance, so long as the distance was such that execution or harm might arise to the mate from the discharge of the fire-arms. He said that, in the present case, the mate had sworn that the prisoner was three or four feet from him; that is, he had shoved the man forward three or four feet when he took him by the collar. The prisoner had committed no battery upon the mate, but if the prisoner was so near the mate as to have been able to have inflicted a blow upon the mate with his knife, had he so intended by extending his arm the length of it, he was clearly guilty in law of the assault, and ought to be convicted; but should the jury be of the opinion, that the prisoner stood at such a distance from the mate when he drew his knife and flourished it, that he could not have possibly reached him, the prisoner was not guilty in law of the offence charged in the indictment.

The jury thereupon retired, and returned a verdict of not guilty.