State v. White

• Decision Date: 17 February 1894
• Parties: STATE v. WHITE et al.
• Court: Rhode Island Supreme Court

28 A. 968

18 R.I. 473

STATE

v. WHITE et al.

Supreme Court of Rhode Island.

Feb. 17, 1894.

Prosecution against Isaac White and Emerson Ash. Defendants were convicted, and petition for a new trial. Petition denied.

Willard B. Tanner, Asst. Atty. Gen., for the State.

Arnold Green, for defendants.

TILLINGHAST, J. This is an indictment against the defendants, charging an assault on one Samuel E. Almy with intent to kill and murder. At the trial of the case in the court of common pleas the defendants were found guilty of an assault with a dangerous weapon, and they now petition for a new trial on the ground that the verdict is against the evidence, and that the presiding justice erred in his rulings of law and in his instructions to the Jury.

The facts in the case, as shown by the stenographer's report thereof, are substandally these: The defendant Isaac White had a seaweed privilege on Fogland beach, in the town of Tiverton, which he had habitually exercised, and which was known to said Almy. On the day of the happening of the alleged assault, White sent his hired man, Ash. one of the defendants, together with a boy named Sweet, with a team, to get seaweed from said beach. There was, and for upwards of a century had been, a public highway leading to the beach, as was subsequently decided by this court in Almy v. Church, index LL. 170, 26 Atl. 58; but at the point where the affray occurred it was, and from time immemorial had been, obstructed by a gate wrongfully maintained by said Almy and his predecessors in title to the farm then owned by him, and the case referred to was then pending in this court to determine as to the right of the town council of Tiverton to open and define said highway from the gate westward to the beach. On the arrival of said Ash and Sweet at the gate on their way to the beach, the complainant, who, having seen them approaching, had left his work in the field, and gone to said gate for the purpose of preventing them from going through the same, forbade them from opening the gate; telling Ash that if he went through the gate he (Almy) would go through his blood; Almy at the same time stepping back, and procuring two sticks from the corner of the wall, and giving one of them to Hussey, his hired man, and telling him to use it if necessary. After some talk between Ash and Almy as to the right of the former to go through said gate, and after being forbidden as aforesaid, Ash said to the boy Sweet: "We can't get anything here now. We might as well go and tell the old man [as he called him, referring to White], and if he wants to go through to come down;" whereupon the young man started on his errand, and Ash turned his team around, and drove away to a neighbor's house near by. After an hour or so had elapsed, Ash, who in the mean time had armed himself with a pistol, returned to the gate with his team, White then being with him; whereupon Ash said, "Will you open that gate now?" and Almy replied, "No, I will prevent your entering for any purpose whatever." Ash said, "We have got the tools to do it with, and we are going through;" whereupon the defendants, after some delay and parleying, during which violent, profane, and threatening language was used by the defendants towards Almy, and after a request by White to Almy to open the gate, which was again refused, Almy saying to White that if he did open it he would have to go over his (Almy's) dead body, Almy and Hussey having the sticks in their hands, turned their ox team around, and backed it violently against the gate several times, for the purpose of breaking it down, and thereby obtaining access to the beach. While the defendants were thus engaged, Almy, together with said Hussey, persistently and violently strove to prevent the team from going through, by holding the gate, by punching and belaboring the oxen with the stick, and also by inserting the stick in the wheels of the cart. The defendants, however, finally succeeded in breaking through the gate. Whether or not any direct personal violence was used by either party before the gate was actually forced open is not entirely clear from the evidence, but either during the breaking thereof, or immediately afterwards, there was a violent personal encounter between Almy and the defendants, growing out of the transaction, during which the defendants used a hoe, pitchfork, and pistol, breaking the arm of Almy and otherwise injuring him to the extent of disabling him from offering further resistance to their attempts to go through the gate with their team; whereupon they proceeded to the beach for the purpose aforesaid. The defendants testify that White was knocked down and rendered insensible by Almy during the affray, and also that Ash was beaten by him with a stick or club. Briefly summarized, then, the evidence submitted shows that the defendants were lawfully on a public highway, going to the beach, to collect White's property, the seaweed which was there; that said Almy had illegally obstructed the highway by maintaining the gate across the same, which was a public nuisance, and which specially damnified the defendant White; that Almy refused to allow the gate to be opened, and aggressively defended the same by holding it to prevent it from being opened, and attacking the vehicle and the oxen of the defendants, while the latter were striving to force their way through; and that during or immediately after the removal of said obstruction in the manner aforesaid a personal encounter ensued between the defendants and Almy, in which the latter received the injuries complained of, and also in which, according to defendants' testimony, White was knocked down and rendered insensible by Almy, and Ash was also beaten by him with a stick.

The first question which arises in view of this state of facts is whether the presiding justice erred in his refusal to instruct the jury as requested by the defendants' counsel: (1) "That if the jury finds that the defendants and their cart were on this highway intending to take the most direct track to the beach and salt water for their seaweed, and that Almy interrupted them, Almy, and not they, was the aggressor;" (2) "that if the jury find that these parties were attacked while upon a public highway of the state, Almy, and not they, was the aggressor." The answer to this question depends upon the correctness of the defendants' contention as to their legal right to remove said obstruction by force, while the complainant was present and actively defending the same if they had this right, then Almy, and not they, was the aggressor, and said request to charge should have been granted; otherwise not. We think it is well settled, notwithstanding...