Newcome v. Russell
Decision Date | 24 March 1909 |
Parties | Newcome v. Russell |
Court | Kentucky Court of Appeals |
Appeal from Marion Circuit Court.
Judgment for plaintiff, defendant appeals — Affirmed.
H. W. RIVES for appellant.
W. W. SPALDING for appellee.
S. S. RUSSELL of counsel.
In an action for assault and battery, the appellee recovered a judgment against appellant for $400. The facts are, briefly, these: The parties, who were neighbors, were not on good terms. The ill feeling between them was aggravated by an arrangement made by appellee with a party to pasture some cattle for him. In taking the cattle to pasture, it was necessary that they should be driven through the lands of appellant, who objected to the cattle passing through his premises, and, to prevent them, had fastened his gate on the morning of the day the difficulty out of which the action arose occurred. Appellant's version of the affair is that appellee was attempting to take down or make a gap in appellant's fence for the purpose of letting the cattle through, and, when he objected to the tearing down of the fence, appellee persisted, whereupon he shot him in the leg, which is the assault and battery complained of. Appellee's story is that he was not tearing down the fence to let the cattle through, but, being a cripple, he was obliged to take a few rails off the fence to get over it, and was in the act of getting over the fence and escaping from appellant, who had been threatening and cursing him, when he was shot.
The principal error complained of is in respect to the instructions given and refused. The court instructed the jury: The appellant, defendant below, offered the following instruction, which was refused: "The defendant had the right to protect his property, including his fence, from any interference on the part of plaintiff; and if you shall believe from the evidence that plaintiff was taking down defendant's fence, and that defendant in shooting and wounding plaintiff used only such force as was reasonably necessary to prevent plaintiff from so taking down his fence, you should find for the defendant."
It may be well to notice at the outset that appellant did not, in the instruction offered, attempt to justify the shooting upon the ground that it was necessary in his self-defense, but rested his right solely upon the proposition that he had the right, if it was necessary to prevent appellee from taking down his fence, to shoot him. The force that may be used to prevent a trespass depends upon the circumstances surrounding it. The general rule is that when a trespass, like the one in question, is attempted, the owner of the premises has a right to use such means — saving the taking of human life and the infliction of bodily harm — as in the exercise of a reasonable judgment are necessary to protect his premises or property from forcible invasion. He is not obliged to retreat, but may stand his ground, and defend his property by whatever force short of the taking of human life, or inflicting a serious wound, as is necessary to make the defense effectual. Bishop on Criminal Law, Secs. 861-875; Wharton on Criminal Law, Sec. 501; Roberson's Kentucky Criminal Law, Sec. 544. In a well written note to Hannabalson v. Sessions, 93 Am. St. Rep. 250, the editor, supported by numerous authorities, lays it down that: ...
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... ... Newcome v. Russell, 133 Ky. 29, 117 S.W. 305, 22 L.R.A.,N.S., 724; Com. v. Emmons, 157 Pa.Super. 495, 43 A.2d 568; People v. Doud, 223 Mich. 120, 193 N.W ... ...
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