Opinion
05-18-1903
STATE v. LEWIS.
Herbert H. Ward, Atty. Gen., for the State. J. Frank Ball, for defendant.
Prosecution against Howard Lewis for assault and battery. Acquitted.
The prisoner was indicted for assault and battery. At the trial proof was offered tending to show that on March 14, 1903, while the prosecuting witness, Mrs. Lucy Hallett, with her husband and her sister, were walking along a public road between Middletown and Odessa, a team containing the defendant, a colored man, and five colored women, and being either driven by or under the control of the defendant (the testimony being conflicting upon the point as to who was driving at the time of the accident), came up behind the prosecuting witness, and that the horse's head struck her upon the shoulder. The testimony further showed that the three persons had been, a short time before the collision, walking along a sidepath, but, owing to the wet condition of the same, had stepped out into the road, and were walking along the extreme right-hand side thereof, when the collision occurred; that the road was wide enough at that point for three teams to go abreast; that the horse was in a walk at the time of striking the prosecuting witness; and that the prisoner made no attempt to drive around the persons who were walking, but asked them to get out of the way so that he could pass. This the husband of the prosecuting witness refused to do, and when his wife stepped aside, told her to come back behind him, which she did.and Immediately the collision occurred. The Attorney General asked the court to charge the jury, first, that, as all the persons had an equal right to the use of the road, and that as the pedestrians were on the right-hand side of the road—the proper side—going in the same direction as the team, it was the duty of the persons coming behind them in the vehicle to avoid colliding with the persons walking in front; second, that if the jury believe that Howard Lewis had hold of the lines, or that he had charge of the team and should have had control, he would be responsible for colliding with the prosecuting witness on the ground that be was present, aiding and abetting. Counsel for defendant asked the court to charge the jury: First. That where a loaded wagon and foot passengers are passing along a public highway, and there is a footpath, it is the duty of the foot passenger to keep to the footpath, rather than the wagon road, and if he goes out of the footpath, on account of the wet condition (as the testimony shows in the present case), into the wagon road, it is the duty of the foot passenger to give the right of way to the loaded wagon, rather than the loaded wagon to drive out of the way to accommodate the foot passenger. If any one has to yield in such case it is the foot passenger, because it is more easy for him to get out of the road than for the loaded wagon. Second. That the jury, in order to convict the defendant, Howard Lewis, must believe beyond a reasonable doubt that he had charge or control of the horse when the collision happened.
Argued before LORE, C. J., and GRUBB and PENNEWILL, XT.
Herbert H. Ward, Atty. Gen., for the State.
J. Frank Ball, for defendant.
LORE, C, J. (charging Jury). Howard Lewis, the defendant in this case, is charged with an assault and battery. An assault is an attempt to do violence to the person of another with the means at hand of carrying that intention into execution. The battery is the actual infliction of the injury, however slight that may be. If you should find from the evidence in this case that the horse which was attached to the wagon was willfully or intentionally driven into or forced in contact with the person of Mrs. Lucy Hallett on the occasion which is charged in this indictment by some person, we say to you that that would constitute an assault and battery in law. If, at the time the horse's head came in contact with the person of Mrs. Lucy Hallett, the horse and wagon were under the control and management of Howard Lewis, the defendant, then he would be the person who would be liable. He would be equally so, gentlemen, although he did not have hold of the lines, or the immediate guidance of the horse and wagon, if he was there present aiding, procuring, commanding, counseling, or assisting the person who bad hold of the lines and who was managing the horse and wagon. We have been asked to charge you with respect to the right of way of a foot passenger and a loaded team upon a public highway. It is conceded that the road between Middletown and Odessa is a public highway. That highway is open, gentlemen, in. all its length and breadth to the reasonable, common, and equal use of people on foot and on horseback or in vehicles. The law upon this question has been very clearly laid down in the case of McLane v. Sharpe, 2 Har. 483: "Where one undertakes to pass another, he who passes undertakes to go by at his own peril, if the other carriage leaves him road enough; and even when a horse in a gig has balked or stopped on the highway, the driver of a carriage behind, wishing to pass, is bound to stop if there be not road enough left for both carriages; for, although every man has a right to pass on the public road, yet he must take reasonable care to exercise that right so as not to injure another." Having stated to you what constitutes the offense of assault and battery, and also the law as it relates to the highway, it is now for you, from the evidence before you to inquire whether the defendant is guilty of assault and battery or not guilty. If, after a careful consideration of the evidence, there is a reasonable doubt in your minds as to the guilt of the defendant, that doubt should inure to the benefit of the accused.
Verdict, Not guilty.