Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-07-23
SUPREME COURT.
FULL TEXT OF DECISIONS FILED.
Lueien Warner, appellant us. Henry Kenning,
respondent.
OPINION.


In this case the plaintiff claimed and was
found by the court below to be owner and en-
titled to the possession of a certain steam en-
CINE, by virtue Of his ownershipsof a certain
lot of land with building thereon used
place for the manufacture of doors, sash, ETC.,
to which building the engine was attached, for
ming part Of its machinery.
1t was found as a fact that at the time when
the plaintiff purchased the lot and building
the defendant held chattel mortgage upon
the engine, which mortgage was made by the
owner of the engine before it was in any man
ner attached to the building or the premises
upon which the same was situate.
From the plaintiff 8 own testimony it appears
that at the time when he purchased he knew Oh
the existence of the defendants chattel mort
gage and that he bought expecting to pay the
same. In exactly what manner the engine
attached or annexed to the building does not
appear, but lit the fact be importantly the rea-
sonable inference from what does appear is tina,
The annexation or attachment was OF such a
character that the engine could be and was re-
moved without any considerable injury to it
self or to the building in which it was placed
If he state of facts thus appearing and which
che evideuce tends to show satisfactorily
established the real state of facts in the case.
are of opinion that as between the plaintiff
property and subject to the chattel mortgage.
In the case in which the annexation of q
chattel to real property is of such a nature that
it can be detached without being materially
injured, and without material injury to the
| things real 10 which it is annexed, the question
whether the chattel becomes an irremovable
| fixture may depend altogether upon agreement
Or tue special relation between the parties in
interest, even if, in the absence of such agree
ment or relation, the chattel would become
part of the real estate. If the agreement OF
| special relation is such as to evince an under.
| standing and intention between the parties that
| it should remain personal property, notwith-
standing the annexation the chattel will (at
| least between them) retain that character. Ford
VS.. Cobb 20 N. Y, 344; Hamlin VS.. Parsons IL
Minn., l08. Upon these considerations, we can
not say that the court below erred in granting
a new trial. We are not to be understood, how.
ever, as expressing any opinion as to the credl-
| bility or weight of the evidence in the case or
as to what the result ought to be upon new
trial, and perhaps fuller and clearer presenta.
| ton of the fact to the trial court.
| The order allowing new trial is affirmed.
BERRY, j.
! The State Of Minnesota, respondent, as. Franz
Heidi,aa, ST., Fy'o1sk Heidina dr.. Otto Heidi.
ma and John Kropeit appellants.
OPINION.
There was certainly sufficient evidence tt
justify the jury in finding that the party witt
whom the defendant was acting committed al
assault upon Barker, and that one of them
Adolph Heidina, was using in the assault 1
dangerous weapon. with intent to do grea
bodily harm to Barker. There is also evidence
enough to justify the jury in finding that eacl
of the persons participating in the assault, In
Guiding this defendant, knew that Adolpl
was armed with and was using dangerou
weapon, with intent to do great bodily har N
and that in assisting the assault they partlcl
pated in and had the same intent ds he witt
held the weapon. The court was Therefore
right in refusing to direct verdict of no
guilty.
Defendant requested an instruction, that i
the jury believed that the motive o
intention of the defendant was t
protect or defend his son, or either o
them, in the fight, then they would find yer
dict of not guilty. The court refused to SO in
struct, but in its general charge did instruct a
to the right of parent to protect his child
and the imita ions of the right. Precisel
what this instruction was does not appear ex
cept that the court instructed that it would dc
pend on what the sons were doing; that Their
was no right to protect in committing crime
| This is undoubtedly correct. a parent ma
protect child from assault the part
assaulted may protect himself but he may nc
prutectsa child in committing an assault. Th
l
arming must precede the assault, and that
convict defendant as an accessory he must hav
, aided the principals in the previous armin
with the knife, and in making the assault o
Barker. This was clearly wrong. For afte
the principal is armed with dangerous weapon
one who comes to ! is assistance knowing thu
he is armed and participating in tn
= intent to do great bodily harm with til
. weapon, and who assists him in his assau
with it, is as guilty IS though he had assiste
! in the previous arming.
The defendant also requested an instructio
that if the jury believed from the ev demo
that the defendant was SO drunk during tt
r fight that he did not know what he doin.
then they should find for defendant, even if
I aided and assisted in the previous arming Wit
0 the knife and making the assault.
i As to this request, it is sufficient to say tn;
: while there is evidence that defendant W.
drunk there is none to show the condition
: his mind, nor that he was too drunk to reaso,
: or know right from wrong.
: There was, therefore, no evidence to requi
' the charge.
/, Order and judgment affirmed.
y M GIFIII.S. G. ].