The Cass County Republican. [volume] (Dowagiac, Mich.) 18??-1880, 1880-06-30

tuO 1OLu VI Ouiys
Below Is summary from the
Lansing Republican, of the finding
by the Supreme Court in the Lilly
case. 1t will be observed that he
can be found guilty of no crime but
assault, and it is not decided, and
probably the people care but. little
when that will be tried.
The People vs. Thomas j Lilley Exceptions
from Cass-Reversed.- Otto Kirshner for the
people; +. j. Atwell and ). ]. Van Ripper fol
defendant. '~-
Opinion by MARsros, CT.
Respondent was tried upon an in
formation which charged him with
having made an assault upon one
Horace Mckenzie with an intent Ia
kill end murder him. Under ins:ruc
tions the defendant was found guilty
of an assault: with intent to commit
manslaughter. The case comes here
on exceptions before judgment.
A difficulty had arisen between
the person claimed to have been as
saulted and the father Of respondent
as to the proper division OF certain
wheat, then being thrashed, and
which led to blows. The respond
ent was struck on the head by Nc
Kenzie, and retreated or walked to.
ward the straw-stack, some 10 or IL
feet distant. There is some coufict
iu the evidence as to what thereupon
took place, but as respondent was
entitled as matter Of right to have
the case submitted to the jury under
Instructions applicable to the evi.
denee, favorable, as we'll as unfavcr-
able to him, we must for the present
purpose consider the charge as given
and refused in view of the evidence
most favorable 10 the accused.
After respondent reached the
strawstack be turned around, took
knife out of his pocket, made some
threat and advanced towards Me-
Kenzie. After he had advanced one
or two steps he wasI caught by a by
stauder, and there is some question
as to whether the knife was open at
the time or not, and witnesses testi-
fed that he was then from 10 to 15
feet from Mckenzie. Respondent
then-put his knife in his pocket.
This practically ended the matter.
The court, as requested by the
prosecuting attorney, instructed the
jury: "An assault is an attempt or
offer with violence to do a corporal
hurt to another; an offer to inflict
bodily injury by one who is rushing
upon another is an assault. Although
the assallant be not near enough to
reach his adversary, if the distance
be such as to induce q man of ordi-
nary frmness to believe that he is
in immediate danger of receiving
such threatened injury, and any in
tent to commit violence accompan-
led by acts which, if not interrupted,
will be followed by bodily injury, is
sufficient to constitute an assault,
the assailant may not be
within striking distance. And in
this case of Lilly, being within 10, Is,
or 20 feet from Mckenzie, drew his
knife from his pocket and commence
ed to open the same, and started to-
wards Mckenzie in violent mahpsr,
threatening that he would do him
bodily injury, and afterwards advan-
cling towards him a few steps, and
while rushing towards Mckenzie he
was stopped by Dillman, Lilly would
be guilty of an assault"
The court declined to charge that
ian assault in law is an effort to
strike or cut within striking distance,
and if the person started to strike or
cut Mckenzie, and before he got
within striking or cutting distance
stopped and voluntarily abandoned
his purpose, or if before coming with
in striking or cutting distance was
stopped by others, and then aban-
doned his purpose, it would not con-
stitute an assault in law" That ain
order to constitute crime of assault
with intent to murder, the attempt
to strike or cut .nust be within strik-
ing or cutting distance, and if the
prisoner started to strike or cut Me-
Kenzie, and before he got within
striking distance stopped and volun-
tarily abandoned his purpose, or be-
fore coming within striking or cut
ting distance was stopped by others
and then voluntarily abandoned bis
purpose, it would not at law consti.
tute an assault with intent to MUIR
der. as charged in the first and sec-
oud counts in the information"
The instructions as given would
seem to lay down the general propo.
sition that an intent to commit, ac-
oompanied by acts which if not in
terrupted will be followed by bodily
injury, is sufficient to constitute an
assault, although the assailaut may
not be at any time within striking
distance. Now there may be an in
tent to commit violence, and this ac-
compauied by acts preparatory there
to, which if followed up would clear
ly constitute an assault; yet owing
to the distance and surrounding cir
cumstances no possible assault could
have been committed.
The act done must have been suffi-
ciently proximate to be the thing in
tended. 1t may be so remote, al
though a distinct and essential act
coupled with the intent, as to fall
far short of constituting an assault.
Clearly, where the intent is formed
and some act done in performance