Gallagher v. State of Minnesota

• Decision Date: 01 January 1859
• Citation: 3 Minn. 185
• Parties: CHAS. B. GALLAGHER vs. STATE OF MINNESOTA.
• Court: Minnesota Supreme Court

3 Minn. 185

(3 Minn. R. p. 270.)

CHAS. B. GALLAGHER vs. STATE OF MINNESOTA.

Supreme Court of Minnesota.

Error to district court, Ramsey County.

John B. Sanborn, for plaintiff in error.

H. J. Horn, for the State.

ATWATER, J.

The defendant below, Charles B. Gallagher, was convicted, in the district court of Ramsey County, of an assault and battery upon one Bailey, and sentenced by the court to pay a fine of fifty dollars and costs. There was some evidence, on the trial, tending to show that Bailey committed the first assault, by raising his cane, as if to strike the defendant. One witness, Thompson, testified, among other things, that "Bailey gave Gallagher the lie, and high words ensued between them. At this time the parties were standing some three or four steps apart. Bailey had a large cane in his hand at this time, which he held about the middle, and with his cane raised he stepped forward towards Gallagher, as if about to strike him with the cane. As Bailey came up to Gallagher, Gallagher struck him with his hand or fist, and Bailey sort of rallied backward a little. I caught him and held him." This is all the evidence on the part of the defense to that point, that appears in the case.

The counsel for the defendant asked the court to charge the jury as follows, to-wit: "That if the jury believe, from the evidence, that Mr. Bailey, previous to and at the time the blow was struck by Gallagher, had his cane raised for the purpose of striking Mr. Gallagher, and that Mr. Gallagher reasonably supposed that he was about to be struck by said Bailey, with said cane, he had a right to strike Bailey as he did, before receiving any blow from said Bailey." The court refused the instruction, and the defendant excepted. We see no error in the refusal of the court to instruct in the language requested by the counsel for the defense. In substance, the charge requested was, that if the jury believed that Bailey committed an assault upon the defendant, and was about to commit a battery, that then the striking was justifiable. This may, or may or may not, be true — it is not necessarily so. The difficulty is that it makes the court the judge of the degree of force used by the defendant to prevent the battery, whereas, that is a matter of fact for the jury. Had the instruction requested been so worded as to have submitted this fact to the jury, it would have been error to have refused it. Every assault will not justify a battery; and whether the degree of...