Lexington gazette. [volume] (Lexington, Va.) 1871-1962, 1901-02-13
bAEtfn MONTGOMERY Is FREE.
UPON THIRD REVERSAL By The SuPREME
CouRr The CASE Is DROPPED.

The Supreme Court OF Appeals Of
Virginia Thursday for the third time
reversed the ruling Of the Circuit and
County Courts Of Rockbridge county
in TIE case Of Daniel Montgomery
against the Commonwealth. The opin-
ion, delivered by Judge Phlegar, will,
no doubt, be accepted as leading one
on the question of v hat is The proper
exercise OF elf defense in cases Of
assault and battery.
Montgomery was convicted in the
County Court for maliciously cuttin
William E. Davidson with intent to Kill +,
and was sentenced to four years in the
penitentiary. The Court OF Appeals at
it's June term, 1900, set aside the ver-
dict and awarded new trial. The
prisoner was again convicted. and new
trial was awarded by this court ct IFS
September term, 1900. He has been
convicted third time and sentenced
to four years service in the penitentiary.
The two reversals were because Of
errors contained in the instructions to
the jury. The cage was before the
court for the third time on the correct
ness Of one of the instructions asked
for by tie accused, which was refused
by the lower court.
The difficulty occurred on the prom
Uses OF John Randolph, who was
tenant of Davidson, and that Davidson
was cut with the corn cutter with
which he assaulted Montgomery.
The instruction the prisoner asl g
for and which was refused was az fol-
lows: "The court further instructs
the jury that if they believe from the
evidence that Davidson got down off
his horse and started toward Mont.
gomery, demanding the gun and saying
that he would see about whether
prisoner would leave, thi, of itself was
such threat and demonstration on tie
part Of Davidson as to warrant Il e
prisoner in placing himself in a
position to defend himself and
ward of the threatened assault
and if he jumped back with gun in
hand, pointed and cooked at Davidson,
and said: off you fool with me, 1 will
shoot you, d--n you;" or said, "Don'
come here, for if you do, I will shoot
you, d--n YOU" and the prisoner
added in quick succession the further
words: II will shoot you" these are not
such threats on the part Of the prisoner
as warranted Davidson in picking up
q corn cutter and proceeding to attack
the prisoner, and if you believe he did
80, then you must regard Davidson as
the attacking party, aud fad the prs
oner not guilty" This instruction is
held by the higher court to have been
proper and should have been granted.
The conclusion Of the court is that
Davidson had no right to order Mont.
gomery away, as he was not on Davi /
sons premises. II Montgomery had
been on Davidson's premises, then the
latter would have had the right to order
him away, and in the event of refusal,
he could have expelled him, provide |
he did not commit breach Of the peace
at the outset Of the fracas. The seizure
of the corn cutter and the assault
Herewith entitled Montgomery to de-
fend himself.
The opinion OF the court is that the
motion for a new trial should have
been granted by the lower courts, as
in neither of the records before the
court was there evidence sufficient to
warrant conviction.
The court also held that If new
trial is had, the evidence of William Il.
Davidson given at the first trial, and
who has since died, should be eI-
cluded.
The case was remanded to the County
Court Of Rockbridge for new trial, il
the court and prosecuting attorney
consider that case can be made out.
Judge William P. Houston, upon
consultation with Commonwealth
ATTORNEY Robert Catlstt, who informed
the Judge that he had no new evidence
TO introduce in a new trial on Friday
released Montgomery from custody.
The trials in both county aid circuit
O )urts were an expense OF over $500