The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1861-03-22

Francis NJ. smith
d. | oOes.


vs.. 9068.
The State.
This was 4 conviction for an assault in
the Circuit Court Of Yallobu.ha.
The defendant pleaded not guilty. and
on the trial Il was proved by the only
witness examined that he went to d ftu
dsnts' house TO levy an execution and
when he arrived there, that he found lie.
PENDANT NJ the grindstone grinding hi-
knife. When the witness made known
h.. purpose Of his visit the defend ~
.wors. hs should not levy the execution.
md threatened. if he did 10 cut his throat
Witness leaned up against the fence in 4
careless manner. Defendant walked up
10 witnes IN an angry manner. 10 talk
ing 70 witness defendant kept his knit
open speaking in an angry aud excited
manner. aud Furnishing his knife which
sometimes passed within six inches OF
witnesses Throat. Witness stool moiiun
less and stIAmed def-ndnnt, and told him
that he was a better man than with -.
aud that defendant put ~ his knife. but
-pon took il out again. Witness for the
time was prevented FROM IN liking tn.
s.vy. but drfeI.dani's anger subsidized after
while and he made the levy aud d. f.-nd
ant rode of with him to a nrighbor's
h"u~e. Witness did nothing to pr,1vrnt
drfrndant from striking him ii he desired
To d0SO. Witness did nothing hut talk To
defendant. Defendant and witness were
the only persons present. Defendant did
not touch witness who did not retreat but
stood still
fhe errors assigned arise upon the in
structions granted with reference to the
foregoing evidence in behalf Of tho prose.
| cution, and upon those which were re-
qusted BY the defendant. and refused by
| the Court.
FIR the prosecution the Court charged
fr-t. that ''if the jury believe from the
-vid nee that the defendant in an angry
manner Or " deadly weapon and az
| trosch-d Wilson, and while in reach OF
| him threatened to do him damage IL he
| dill not d.Aist FROM DUNG lawful act I;
/ md that w llson did drsist for the time
| ia cons -asRncs. 0f such threat, the de en-
| dant bs-44x ARMED with and exhibiting
such wetDou. then the defend INT il
| gully of an assault And second, thar
tn constitute an assault. il is not necessary
| h.' snv damage be done, or that any blow
be struck.
Add refused in behalf OF the defendant
/ 60 instruc. the jury fast, that IF It wa
| not the intpntiin of the defendant &"
| ssrike. then no assault " IS committed. -
| S..con.l. lit il was in the power OF the
| defendant a. strike and he did not strike
nor make any attempt 10 strike. these are
| circumstance to be- considered by the Jury
| Ia determine whether there was any inteu
| tinn to STRIKE" aud third, "no threat Of
words or act c "a constitute an a-s&ult II
| tue Jury believe there WAS no intention 10
| strike"
These latter instructions are the con
| verse of these given at the instance OF the
| Prosecuting attorney, aud IN effect pres
ent the question whether present pur-
pose or inis-ntinu to do harm to another
Is necessary TO the constitution OF an
assault
An assault is said to be any attempt or
| offer with force or violence TO do cor
/ porsl hurt to another, whether from malice
or wanionuess, Roscoe, Ev. 25T. The
OfFcr or attempt must be iHtpntional-i"r
| if notgith standing appearances to the
contrary, it can be collected that there is
| not u present purpose to do an injury. il
Is not su assault. Wharton. Am Cr /
| 1874 f4th EIl-And il j. said that Il mere
J purpose To- commit violence, however
4 plainly disclosed If not accompanied by
an effurt TO carry il into immediate exc
| cutiOn faIls short OF an actual assault
| Hence no q lgds Of themselves can amouni
to assault Davis W. The State |. lred II
! Us. Wharton Am. CIR. l. 1914. A. no
wor,ls OF Themselves or declared purpose
To- du an injury 20 the P'r-0n of another
unaccompAul. d with an effort TO car y
| such purIaHe into immediate efftcI
amounts tn an actual assault. it /, nni
always ea~y in practice, to draw dividing
| line between violence threatened and
violencs. begun 20 be executed. But We.
| think it may safely be laid down, ''that
where AN unequivocal purpose OF violence
j. accompanied by any act. which if not
stopped or diverted. will be followed Ly
I#r-Ounl injury, the execution of the pur
| IoSt- j. then b.-gun the battery Is attempted
\ Tested by lhrse rules il sermS very
| clear that the rulings OF the Court VERY
erroneous The acts or GESTURES of the de
PENDANT were not an evident attempt 10
o,mniit violence upon the person of VIII
son I'apppars certain that he did not 20
regard Ihrin,ls he leaned carelessly against
the fence. offered no resistance aud did
not retreat. when it was completely in the
Ir,wer of the defendant 10 have executed
| hi. purpose il he intended 10 ksSail linn
| Under the circumstances IN proof before
the jury it was indispensable that they
shall ASCERTAIN what was the intention vt
the accused.
II the proof was clear or the jury had
been saiisfied that the accused at the time
aedisats.l =nIaon the person Of
Wilson, they would have been JUSTIFIED IN
finding that his acts amounted TO an
assault. But the instructions excluded
Ir.sm their consideration all Of the facts
and circumstances, in proof before them,
aud whleh eege relied upon 10 show that
the accused did not intend to commit an
injury upon the person Of Wilson, and
hence that lac Was rot guilty ne charged.
Judgment reversed cause remanded for
new tlial.
SNITH.
In the shove case Mr.. Justice II indy
delivered the following dissenting opinion.
FRANCIS II Smith.