State v. Morgan

• Decision Date: 31 December 1842
• Citation: 38 Am.Dec. 714,3 Ired. 186,25 N.C. 186
• Parties: THE STATE v. SOLOMON MORGAN.
• Court: North Carolina Supreme Court

3 Ired. 186

25 N.C. 186

38 Am.Dec. 714

THE STATE

v.SOLOMON MORGAN.

Supreme Court of North Carolina.

December Term, 1842.

When A., being within striking distance, raises a weapon for the purpose of striking B. and at the same time declares that if B. will perform a certain act he will not strike him, and B. does perform the required act, in consequence of which no blow is given, this is an assault in A.

It seems that an officer does not, in any case, become a trespasser by seizing under an execution privileged articles, such as arms for muster. Certainly he does not become so, unless he seizes with a knowledge that they are privileged goods.

If one man deliberately kills another to prevent a mere tresspass on his property, whether that trespass could or could not be otherwise prevented, it is murder; and consequently an assault, with intent to kill, cannot be justified on the ground that it was necessary to prevent a trespass on property.

A man shall not, even in defence of his person or property, except in extreme cases, endanger human life or great bodily harm.

In criminal as in civil cases, if there be an assault, it cannot be justified other than by shewing specially all the circumstances, which render the act rightful; and the sufficiency of the alleged justification is a matter of law.

The case of State v Crow, 1 Ired. Rep. 375, cited and approved.

Appeal from the Superior Court of Law of Henderson County, at Fall Term, 1842, his Honor Judge PEARSON presiding.

This was an indictment against the defendant for an assault and battery on Elias Cantrell, to which he pleaded “not guilty.” The jury impannelled to try the issue returned the following special verdict: Elias Cantrell, on the day set out in the indictment, being a constable, and having a fieri facias against the goods of the defendant Morgan, went to the House of Morgan, in the county of Henderson, and, in the presence of Morgan's wife, she forbidding him to do so, took into his hands a gun, the property of Morgan. She then proposed that Cantrell should not take the gun off until Morgan was sent for. Cantrell assented, and held the gun in his hands, in the presence of the wife, in the yard, having stepped out of the house into the yard with the gun in his hands, until Morgan came, which was about ten minutes. Morgan came up with an axe in his hand, and required Cantrell to give up the gun. Cantrell refused; whereupon Morgan stepped up within reach of him, held the axe up in a position to strike, and said “give up the gun or I'll split you down.” Cantrell did not at the time give up the gun, but proposed some arrangement, upon which Morgan let the axe down. The matter was arranged, and then Cantrell gave up the gun. Morgan was, at the time, liable to muster, and the gun was his arms for muster. The jury further find, that Morgan, at the time he went up to Cantrell and raised the axe within reach of him, intended to strike, unless Cantrell gave up the gun; but did not intend to strike, if Cantrell gave up the gun--that Morgan used no more force than was necessary to compel Cantrell to give up the gun. Whether, upon these facts, the defendant, in law, committed an assault, and, if so, whether the assault was justified as being in the defence of his property, the jury are ignorant and pray the opinion of the court. If the court, upon these facts, is of opinion that the defendant is guilty, then the jury so find; and if the court is of opinion that the defendant is not guilty, then the jury so find.

The court was of opinion, that raising the axe, with an intention to strike unless the gun was given up, did amount to an assault; for if a man draws a weapon, intending to strike if the other does not pull off his hat, or surrender his money, or do some act which he has no right to require, the offer and intention amount to an assault, although it be his intention only to strike, provided his unlawful terms are not complied with. But the court was of opinion, that, as the officer had no right to take the gun under the execution, although he did take it in his hands, yet the wife being present, when the defendant came up, the possession of the gun was not so lost by him and acquired by the officer, as to take from him the right to justify an assault in defence of his property; for a man may not only prevent another from laying hands on his property, but he may prevent him from taking it off, although it happens to get into the hands of the trespasser before he is stopped--the possession for this purpose not being lost, while the property remains in the presence of his agent or himself. The court, therefore, pronounced judgment in favor of the defendant, from which the Solicitor for the State appealed to the Supreme Court.

Attorney General for the State .

No counsel for the defendant.

GASTON, J.

Two questions are presented for our consideration on this special verdict, and for the purpose of perspecuity it is necessary that they should be examined separately. The first is, whether the defendant committed an assault; and the second, if he did, whether that assault was justified as having been committed in the rightful defence of his property.

Upon the first question, this court entertains the same opinion, which was expressed in the Superior Court. There are several ancient cases in which it was held, that an assault might be committed by threats of future violence; but it has long been settled, that words alone cannot constitute an assault. They may endanger the public peace, but do not break it. There is no assault, unless there be some act, amounting to an attempt or offer to commit personal violence. The instances usually given of such attempts or offers to do wrong to the person of another, are “by the striking at him with or without a weapon, or presenting a gun at him within a distance which the gun will carry, or pointing a pitch-fork at him standing within the reach of it, or by holding up one's fist at him in an angry threatening manner.” 1 Hawk. c. 15. The law regards these acts as breaches of the peace, because they directly invade that personal security, which the law guaranties to every citizen.--They do not excite an apprehension that his person may be attacked on a future occasion, and thus authorize a resort to cautionary remedies against it; but they are the beginnings of an attack, excite terror of immediate personal harm or disgrace, and justify a resort to actual violence to repel the impending injury and insult. But even acts, which prima facie and unexplained are undoubtedly assaults, like other acts which are not unequivocal in their character, may be shewn to be in truth different from what they purport to be; that they are not attempts or offers to do harm, but merely angry gestures without any accompanying purpose of mischief. The attending circumstances may plainly shew this, and, among other circumstances, the declarations of the party at the time, inasmuch as such declarations are ordinarily indicative of the party's purpose, are very proper to be considered and weighed. The ordinary illustration of the doctrine, that a seeming assault may be explained away by the declarations of the supposed assailant, is the very familiar case, where a man laid his hand on his sword and said to the person, with whom he was quarrelling, “if it were not assise time, I would not take such language from you.” There is also an illustration of it in the case of the State v Crow, 1 Ired. Rep. 375, where the defendant, when he raised the whip, used the words, “if you were not an old man, I would knock you down.” In both it was held to be a fair subject of enquiry, whether, at the time these acts were done, there was a present purpose of doing harm, and that, if there was not, the acts did not amount to an assault. But these, and all the cases within our recollection where this...