Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-10-27
COURT DECISIONS.
DIGESTED BY W. B. MARTIN
EXCLUSIVELY FOR
viRcsNiAN- PILOT.
Notes of Cases Recently Decided
Which Are Of Interest to
Our People.
MONTGOMERY V. COMMON
WEALTH.


supreme Court of Appeals OF Virginia
September 20, 1900.
AN INSTRUCTION THAT THE 1,vI-
DENCE is NOT SUFFICIENT TO
CONVICT SHOULD NOT BE
GIVEN; NOR ONE sINGLINcf OUT
PART OF THE EVIDENCE AND
IGNORING OTHER EVIDENCED
THE OWNER OF LAND HAS NO
RIGHT TO ASSAULT WITH A
DEADLY WEAPON ONE WHO
TRESPASSES ON HIS LAND.
SUCH PERSON MAY PRESUME
HIS LIFE Is IN DANGER AND
HAS THE RIGHT OF SELF DE
FENCE.
The prisoner went upon the lands of
DdNluSon Tor the purpose OF selling n
gun to Reed Tyler. one of The hands on
me place. While in conversation with
Tyler and John Randolph, IL tenant on
the premises, Davidson who was rid
ing by, was called up by Randolph
who said to him: Here is a man who
says he is going to hunt anyhow"
Davidson then told the prisoner that
he could not hunt: that the land was
posted to white and black. and asked:
What are you here for?'' To which
the prisoner replied: Reed Tyler has
bought my gun for $780,, which state
ment was confirmed by Tyler, who was
present. Prisoner also said that ''hc
was not hunting, but that he had seen
no notice ANA il he had seen anything
would have shot mt it," or that he
was not particularly hunting, but if he
had seen anything he would have shot
II. as he had seen no notices" David
son then told the prisoner that it lie
had transacted his business 10 leave
Prisoner replied: n will so when get
ready, or when feel like it," David
son then said: II will see about that. ="
ne was then UP near the porch ana the
prisoner was sitting on the porch with
the declaration that he would see
about that" Davidson got off his horse
on the side away from the prisoner
passed under his horses neck and
reached out for the gun, saying give
me that gun and leave here" Where
upon the prisoner jumped up ana
sprung back ten or twelve feet from
Davidson. ana said "If YOU fool with
me Tor bother me, or come here ac-
cording to various witnessesD | will
shoot you. damn YOU" Davidson
turned around. grabbed a corn cutter
eighteen inches long and sharp. having
been ground or filed few hours be
fore. Prisoner, stll backing, repeated
ms statement, saying: Il will shoot
you. damn you" and held his gun
cooked, towards Davidson. but down by
ms side. Davidson said. II don't care
Tor your gum and sprang Mt uriS-
oncr and knocked the gun up with his
left hand and both barrels went off In
the air. and the barrels of the gun
about this time We're broken from the
stock. Then they clinched and fell
some thirty or thirty-GVc steps from
where they started. Davidson on ton
lri. I'll,
prisoner had cried take him off" ana
Randolph had exclaimed, My God arc
YOU going 10 sec him kill the man ."
Davidson was taken off and the pris-
oncr left, Davidson throwing the stock
OF the gun ut him. In the fight David
son received il does not clearly aD-
pear how. cut and some abrasions ON
the head and face. The whole affair
from the time Davidson got off his
horse until they clinched occupied but
"a moment of time. very quick, quicker
than it takes to tell it,"
The court says
Concedlng that the prisoner was n
tresnasser, and that he ought to have
left the promises when ordered TO do
so. still, this did not justify the assault
made upon HIM Davidson, armed with
recently Sharpened corn cutter, ad4
NHncing upon the prisoner ana saving
that he would see about his leaving
WAS wei calculated to excite in tho
prisoner apprehension of great bodily
harm. Under such circumstances tho
prisoner had the right TO defend him
self within the limits Of the law. and
the jury should have been so instrucf-
ed 1t was further said that a simple
trespass upon land does not give the
owner the right to assault The tres-
passcr with n deadly weapon. the re-
suit of which may he to kill him or do
him great bodily harm.
The instructions erroneouslv proceed
upon the idea that the evidence tended
to prove that the prisoner assaulted
Davidson before the cutting or wound
ing. leaving out of view the evidence
going to show that the prisoner re-
treated until sprung upon by Davidson
with deadly weapon and then did the
cutting or wounding i'll the fight that
Immediately ensucd.
1t was said by RELY j.. in New York
&c. II. Co. Y. Thomas. 90 VA. COS.
Calling the special attention OF the
jury to n part only of the evidence and
the particular fact or facts it may tend
to prove, and ignoring the residue of
the evidence and the facts it may tend
to prove, gives undue prominence to
such rccited evidence. and disposcs the
jury to regard it ana the fact ii tends
to prove as the particular evidence
and the facts to be relied on in deter
mining the issue before them, and inns
mislead them" Reversed.
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