Montgomery v. Commonwealth

• Decision Date: 14 June 1900
• Citation: 98 Va. 840,36 S.E. 371
• Parties: MONTGOMERY. v. COMMONWEALTH.
• Court: Virginia Supreme Court

98 Va. 840

36 S.E. 371

MONTGOMERY.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 14, 1900.

ASSAULT—TRESPASS—ATTACK BY OWNER—INDICTMENT— INCLUDED OFFENSE.

1. Where defendant committed a technical trespass on prosecutor's land, such fact did not authorize prosecutor to assault defendant with a deadly weapon to compel him to leave, andtence defendant was entitled to defend such assault without himself being guilty of assault.

2. Where the evidence, in a prosecution for malicious assault with intent to maim, disfigure, disable, or kill, failed to prove a malicious cutting or wounding with intent to maim as charged in the indictment, the defendant was not entitled to acquittal by reason of such fact, since under Code, § 4040, he might have been convicted of a simple assault.

Error to circuit court, Rockbridge county. One Montgomery was convicted of a felonious assault, and brings error. Reversed.

Hugh A. White, for plaintiff in error.

The Attorney General, for the Commonwealth.

HARRISON, J. The prisoner was indicted in the county court of Rockbridge county for felonious assault with intent to maim, disfigure, disable, and kill William E. Davidson. He was found guilty, and sentenced, in accordance with the verdict, to confinement in the penitentiary for a term of four years.

Upon petition for a writ of error and supersedeas, the circuit court of Rockbridge having refused to grant a new trial, the case is now before this court for review.

The salient facts established by the commonwealth are as follows: The prisoner went upon the lands of Davidson for the purpose of selling a gun to Reed Tyler, one of the hands on the place. While in conversation with Tyler and John Randolph, a tenant on the premises, Davidson, who was riding by, was called up by Randolph, who said to him: "Here is a man who says he is going to hunt anyhow." Davidson then told the prisoner that he could not hunt; that the land was posted to white and black. The prisoner replied that he was not hunting, but that he had seen no notices of posting, and if he had seen anything would have shot at it. Davidson then asked the prisoner what business he had, and was told that he had come to sell his gun, and that Reed Tyler had bought it. Davidson said, "If you have transacted your business, you must leave, " and motioned his hand to him to go. The prisoner replied that he would go when he got ready. Davidson then dismounted, and started towards the prisoner, saying, "I will see about that." The prisoner, with his gun in hand, stepped back some 10 or 15 feet, saying, "If you hurt me, I'll shoot you, damn you." Davidson picked up a corn cutter recently ground and sharp, ran to the prisoner, and they clinched. In the scuffle the gun was discharged in the air, and Davidson received, it does not clearly appear how, a cut and some abrasions on the head. They fell to the ground, Davidson on top. After some scuffle, the prisoner cried, "Take him off, " and they were separated. Davidson was not laid up by his wounds, and was "all right, " as stated by his physician, at the time of the trial, which was within six weeks from the date of the affray.

The first error assigned is the action of the court in refusing certain instructions asked for by the prisoner, and giving of its own motion in lieu thereof the following:

"The court instructs the jury that W. E. Davidson had the right to require the accused to leave his premises, and that, if the accused refused to leave when so requested, the said Davidson had the right to use such force as was necessary to eject him from his premises."

The theory of the prosecution is that the prisoner, having refused to leave immediately upon being ordered to do so, thereby...