People v. Jennings

Headnote

The jury are the proper judges, from stances11 “and facts before them whether an assault and battery had ted or not. ' •

Assault and Battery.

Richard Jennings was charged with committing a violent assault and battery upon William Manning, a mujattQ marij on igth ¿|ay 0f September, 1822.

jt appeared by the testimony of the prosecutor, that he was an Oysterman, and had moved his stand, during the fever> to the-----wharf. He had placed his stand upon the foot of the walk, where he was engaged . . _ „ opening oysters, when Jennings came up, and after accost-him in a peremptory manner to remove his oyster shells, took a large undressed hogshead stave, and struck him over the breast and shoulders, and knocked him to the ground, and went away, and -left him senseless.

He was attended to by the by-standers, who carried him into a house near by, and called in Dr. Baker, who upon examination, found that his collar bone was badly fractured, and that it was still uncertain, at the time of trial whether he could ever recover the use of his arm.

Bogardus and--counsel for Jennings, called a great number of witnesses, and proved that he was a peaceable and quiet man; that he was employed to see proper regulations observed about the wharf, &c. : and that the prosecutor was the aggressor, by placing his stand where he did. They proved by Captain Tompkins, who it appeared was present, .that the prosecutor behaved in a saucy impertinent manner; swearing and threatening to injure Jennings: that he came up to him with both his fists doubled, in an attitude of attack : that Jennings retreated, and endeavored to avoid him, u'ntil he had nearly •approached the extremity of the wharf, when he struck Manning over the breast and head, and not over the arm : that he fell down, and received the injury in falling, and snot by the blow.

The counsel for the defendant offered to leave the case to the jury, under the charge of the Court, Maxwell, District Attorney, consented, and the Court charged the jury, that if, in their opinion, 'more force was used than the occasion required, more than was necessary to himself from the expected attack of the prosecutor, he was guilty of the assault and battery : or if, in their opinion, the weapon used was not a proper one for the occasion, and under the circumstances of the case, they ought to find him guilty.

Bogardus rose, and requested the Court to charge the jury that if the weapon^ was not a lawful one, yet if Mr. Jennings had it in his hands by accident, or for some lawful purpose, as be alleged he had, he might lawfully use. it to protect himself, and cited the case of the reaper, who was at work at his harvest, when a neighbor came to him from an adjoining field, and a quarrel ensued and he struck him with the scythe he had in his hand, and killed him : it was held not to be murder.