Murray v. Boyne

Citation42 Mo. 472
PartiesOWEN MURRAY, Defendant in Error, v. EDWIN BOYNE, Plaintiff in Error.
Decision Date31 March 1868
CourtUnited States State Supreme Court of Missouri

Error to Second District Court.

This case originated in the Jefferson Circuit Court. Upon the trial, the following instructions asked by defendant were refused by the court:

1. The court instructs the jury that if they believe from the evidence that plaintiff, by any misconduct on his part, willfully brought on the fuss and went into the fight voluntarily, then he must take the consequence of his own misconduct.

2. If the jury believe from the evidence that plaintiff desired a fight, and resorted to abusive language toward Boyne in order to get him to assault plaintiff, then plaintiff should be held the aggressor.

3. That raising the fist in a threatening manner within striking distance is an assault; and if the jury believe from the evidence that plaintiff did so assault the defendant, then defendant had a right to repel force by force to prevent a reasonably apprehended danger; and that if defendant used no more force than was necessary to get rid of his antagonist, then they should find for defendant.

J. L. Thomas, for plaintiff in error.

Abner Green, for defendant in error.

FAGG, Judge, delivered the opinion of the court.

This was a simple action for damages resulting from assault and battery. The statement of the cause of action is made up of the facts out of which the whole amount of damages sustained by the plaintiff is alleged to have arisen. We find nothing objectionable in the petition either as to form or substance. The only remaining question is as to the declarations of law given and refused by the court.

The facts in the case are few and simple, and the instructions given by the court sufficiently apprised the jury of the proper issue presented by the pleadings, as well as what might be taken into consideration in estimating the damages. As to the first two instructions asked by the defendant and refused by the court, they were clearly improper upon the facts proved, and did not contain correct propositions of law. Mere words, no matter how abusive they may be, cannot justify an assault. The only statement in the whole case that could be relied upon as sufficient to sustain the third instruction was made by the defendant himself. It is that when he (defendant) struck plaintiff, the latter was raising his hand to strike him. This statement was wholly unsupported by the other witnesses in the cause, including those who...

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10 cases
  • State v. Young
    • United States
    • Missouri Supreme Court
    • May 19, 1891
    ... ... Sixth. No error was committed in giving the fourteenth ... instruction on the part of the state. State v ... Griffin, 87 Mo. 608; Murray v. Boyne, 42 Mo ... 472; State v. Branstetter, 65 Mo. 153; State v ... Elliott, 98 Mo. 150. Seventh. The sixteenth and ... seventeenth ... ...
  • State v. Elliott
    • United States
    • Missouri Supreme Court
    • December 20, 1886
    ...1 Whar. Crim. Law [8 Ed.] sec. 619; 2 Bish. Crim. Law [6 Ed.] sec. 25; State v. Starr, 38 Mo. 270, and authorities cited; Murray v. Boyne, 42 Mo. 472; State Brown, 64 Mo. 373; State v. Griffin, 89 Mo. 49; Cushman v. Ryan, 1 Story, 91; Winfield v. State, 3 Green (Iowa) 339; Donnelly v. Harri......
  • Cathey v. St. Louis & San Francisco Railroad Company
    • United States
    • Missouri Court of Appeals
    • July 7, 1910
    ... ... Molley v. Railroad, 10 Daly 453; Smith v ... Railroad, 39 L. J. C. P. 349; Priest v ... Railroad, 40 How. Pr. 456; Murray v. Boyne, 42 ... Mo. 472; State v. Griffen, 87 Mo. 608; State v ... Gamble, 199 Mo. 427. (6) Where an act is wrongful, ... malicious and without ... ...
  • Mitchell v. United Railways Company
    • United States
    • Missouri Court of Appeals
    • May 14, 1907
    ...mitigation of compensatory damages. Joyce v. Jamison, 73 Mo. 28; Berryman v. Cox, 73 Mo.App. 67; Yeager v. Berry, 82 Mo.App. 534; Murray v. Boyne, 46 Mo. 472; State Griffin, 87 Mo. 613; 1 Kinkead on Torts, sec. 208, p. 460; Fiero on Torts, p. 435; Cooley on Torts, page 192, star p. 167. (4)......
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