Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-07-03
COURT DECISIONS.
DIGESTED BY W. B. MARTIN
EXCLUSIVELY FOR
vIRciNIAM- PILOT.
Notes of Cases Recently Decided
Which Are Of Interest to
Our People.
MONTGOMERY ". COMMON
WEALTH,

MONTGOMERY v. COMMON
WEALTH.
Supreme Court of Appeals of Virginia.
June 4. 1900.
FOR A MERE TRESPASS ON LAND
THE OWNER HAS NOT THE
RIGHT TO ASSAULT TIE TRES
PASSBR. UNDER AN INDICT-
MENT FOR MALICIOUS CUTTING.
&C.. AN ACCUSED MAY BE CON
VICTED OF UNLAWFULLY CUT
TING. &C.. OR OF ASSAULT AND
BATTERY.
The prisoner went upon the lands of
Davidson for the purpose of selling u
gun TO Reed Tyler, one of the hands
on the place. While In conversation
with Tyler and John Randolph, a ten
ant on the premises, Davidson, who
was riding by, was called up by Ran
dolph. who said to him: Here is IL
man who says he is going to hunt any
now" Davidson then told the prisoner
that he could not hunt. that the land
was posted to white and black. The
prisoner replied that he was not hunt
Ing, but that he had seen no notices
or posting. and IL he had seen any
thing would have shot at IL. Davidson
then asked the prisoner what BUSINESS
ne mad, and was told that he had come
10 sell his gun, and that Reed Tyler
had bought 1t. Davidson said, IF you
nave transacted your business you
must leave and motioned his hand
TO him to go. The prisoner replied
mat lie would go when he got ready
davidson then dismounted and started
toward the prisoner saying: II will
see about that" The prisoner, with
his gun in hand. stepped back some
ten or fifteen feet, saying: IF YOU
hurt me I'll shoot you. damn YOU"
Davidson picked up u corn cutter re-
Gently ground and sharp, ran to tile
prisoner. and they clinched. In the
scufiie the gun was DISCHARGED in the
air and Davidson received, 1t does not
clearly appear how. a. cut and some
nbrasions on the head. They fell to the
ground, Davidson on top. After some
scuihe the prisoner cried, take him
son was not laid up by his wounds,
and was all right" as stated by his
physician, at the time of the trial.
which was within six weeks from the
date OF the ARRAY.
The court says :
The theory of the prosecution Is that
the prisoner having refused to leave
immediately upon being ordered to DO
so. thereby became n trespasser, AMI
as SUCH, Davidson had n right TO use
any force necessary to remove him
even to the extent of assaulting him
with a deadly weapon
Inc prisoner contends that If he was
a trespasser at ALL the trespass was of
the most trivial character, as he was
neither doing or threatening to do any
harm to Davidson or his property. and
that his act did not justify the assault
made upon him with n deadly weapon.
and that he had right to defend him
self from such assault.
The instruction as given contains
the general rule, which is sound as an
abstract, that every man has the right
10 defend his person or property. but 1t
ignores the well-settled and Important
modification of the rule that in defense
or person or property one cannot, OK
cept In extreme cases, endanger hn-
man life or do great bodily harm. The
law is clearly stated by n learned
judge in State V. Morgan, as follows:
When IL is said that man may
rlghtfully use as much force MS is
necessary for the protection Of his
person and property, 1t should be
recollected that this rule is subject 10
this most important modification, that
he shall not. except in extreme cases.
endanser human life or do great bodily
harm. 1t Is net every right of per-
son. and still less of property, that
can lawfully be asserted. or every
wrong that may rightfully be redress-
ed by extreme remedies. There is n
recklessness-a wanton disregard of
humanity and social duty, in taking or
endeaVoring TO take the life of n fe,-
low being, in order to save ones SELF
from comparatively slight wrong,
which Is essentially wicked and the
aw abhors. You may not kill. be-
tause you cannot otherwise effect Your
object. although the object sought to
be effected is right. You can only kill
to save life or limb. or prevent n great
crime, or to accomplish a necessary
public duty.
1t Is clear that the instruction given
by the court was erroneous. Concedinp
that the prisoner was a trespasser, and
that he ought to have promptly left
the premises when ordered to do SO.
still this did not justify the assault
made upon him.
There was no error in refusing de-
PENDANTS instruction No. .. Although
the evidence might not prove a mali
cious cutting and wounding with in
tent to maim dsfigure, disable and
kill. the defendant was not necessarily
entitled to acquittal. for If the evil
dence proved an unlawful cutting and
wounding with such intent, or merely
an assault and battery, he might have
been convicted of either of these lat
ter offenses. although the indictment
charged malicious cutting and
wounding with intent. &c.
1t was error to refuse defendants in
structiors Nos. 3 and 4. For a mere
trespass upon land. the owner has no
right to assault the trespasser with a
deadly weapon. the result Of which
may be to kill him or do him bodily
harm. Reversed.
COWARD V. BLACK.