Commonwealth v. Collberg
| Decision Date | 04 January 1876 |
| Citation | 119 Mass. 350 |
| Parties | Commonwealth v. Benjamin F. Collberg. Same v. Charles E. Phenix |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued November 27, 1875
Middlesex. Two indictments: one for an assault and battery by Benjamin F. Collberg upon Charles E. Phenix; and the other for an assault and battery by Phenix upon Collberg. Both indictments were founded upon and supported by the same evidence.
At the trial of the two indictments in the Superior Court, before Lord, J., there was evidence for the Commonwealth tending to show that about six o'clock on the evening of Sunday August 22, 1875, Collberg and Phenix met near the station of the Boston and Maine Railroad in Malden, and had a slight altercation, as a result of which Collberg bantered Phenix to fight him; that Phenix declined on the ground that he did not want to fight with his best clothes on, but said that if Collberg would wait until he could go home and change his clothes, they would go to some place outside of the town and settle it; that thereupon Phenix did go home and change his clothes, and he and Collberg met at a retired place, remote from habitations and thoroughfares, and fought with each other in the presence of some fifty or seventy-five persons who had gathered there, and that the fight continued until Collberg said that he had enough, when it ceased and the parties went home; that the next day Collberg and Phenix were a good deal bruised, and looked as if they had been fighting.
The defendants testified that they had been acquainted with each other for a period of five or six years, during which time they had always been on the most friendly terms, and were so at the time of the act complained of, and subsequently; that during the period of their acquaintance they had engaged at various times in wrestling matches with each other, all of which had been carried on in a friendly spirit and without engendering any ill feeling between them; that on the day mentioned in the indictment they met towards evening near the station of the Boston and Maine Railroad in Malden, where they had some talk about a recent wrestling match that had taken place in New York, and, growing out of this, as to previous contests of this character which had taken place between them; that, after some talk about their matches, they agreed to go then to some place where they should not disturb any one, and have another trial of their agility and strength in this direction; that they shortly afterwards went to such a place and engaged in a "run and catch" wrestle with each other, without any anger or malice, or any intention to do each other bodily harm; that any injuries which they inflicted upon each other were inflicted accidentally and by mutual consent while voluntarily continuing in such contest.
There was no evidence of any uproar or outcries when the contest took place, or that any one was disturbed thereby, except that the parties were fighting in presence of a crowd of from fifty to one hundred persons who had collected together. After the evidence was all in, the defendants asked the judge to instruct the jury as follows:
"If the jury are satisfied that whatever acts and things the defendants did to each other they did by mutual consent, and that the struggle between them was an amicable contest voluntarily continued on both sides without anger or malice and simply for the purpose of testing their relative agility and strength, then there is no assault and battery, and the defendants must be acquitted."
The judge declined to give this instruction, but instructed the jury upon this branch of the case in substance as follows "That if the defendants were simply engaged in a wrestling match, that being a lawful sport, they could not be convicted of an assault and battery; but if by mutual agreement between themselves, previously made, they went to a retired spot for the...
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