State v. Burton

• Decision Date: 01 October 1895
• Court: Court of General Sessions of Delaware
• Parties: STATE OF DELAWARE v. ISAAC BURTON

43 A. 254

16 Del. 446

STATE OF DELAWARE v. ISAAC BURTON

Court of General Sessions of Delaware, Sussex County

October 1, 1895

This was an indictment, under the statute, for pointing a pistol at Lorenzo B. Hearne. At the trial, the defendant having testified in his own behalf, under the statute, was asked by Nicholson, Attorney-General, in cross-examination, the following question: "Have you ever been convicted for pointing a pistol at a man?"

The question was objected to by White, for the defendant, on the ground that it was immaterial.

Nicholson Attorney-General, contended that it was admissible. It is settled that a witness might be cross-examined as to specific facts tending to disgrace him, for the purpose of impairing his credibility, though said facts be purely irrelevant and collateral to the main issue. Stephen's Digest of the Law of Evidence, 225. This general rule applies to parties when they become witnesses, People vs. Casey, 72 N.Y 393; and in a trial for an assault, the question whether he had not committed an assault upon the person at another time was allowed to be asked of the defendant, People vs Irving, 95 N.Y. 541.

MARVEL J. The general rule cited by the Attorney-General is the law but it does not apply in this case. A conviction under this statute would not necessarily disgrace or degrade the defendant or have any tendency to impair his credibility. The offense under the statute might or might not be an assault, as the statute provides that the intentional pointing in jest or otherwise shall constitute the offense. The case of conviction of an assault is therefore not parallel. We rule the question out.

Verdict not guilty.

OPINION

MARVEL, J., (charging the jury).

Isaac Burton stands charged in this indictment with pointing a pistol at Lorenzo B. Hearne, under the provision of the statute, which is as follows: "It shall be unlawful for any person, in jest or otherwise, intentionally to point a gun, pistol or other firearm at or towards any other person at any time or place."

The question you are to decide is, whether Mr. Burton at the time charged intentionally pointed a pistol at the prosecuting witness, Lorenzo T. Hearne.

It is attempted to justify upon the ground of resisting force that was used against him. We would say to you, gentlemen, that he had the right to protect his person by whatever force was necessary but he could only use so much force as was...