State v. . Rawles

Settle, J. The prosecutor while in the public road engaged in putting up his fence meets with Braxton Eawles, one of the defendants, with whom there is some conversation in relation to knocking down the fence. They separate, and in a few moments David Eawles with his three other sons are seen coming down the road towards the prosecutor, when they meet Braxton, he returns with them, David, the father, using threatening and insulting language. When they get within seventy-five or one hundred yards of the prosecutor, David Eawles calls to him and says, “ come back here and let me whip you,” and he tells the other defendants to set the dogs on him. No dogs are seen. One of David Eawles’ sons has a manure fork, another a hoe, and a third a gun, but neither the fork, hoe or gun are taken from the shoulder of the bearer. j The prosecutor swears that he was put in fear and made to hasten home by the language and conduct of the defendants. His Honor instructed the jury that “if parties use such insulting and threatening language to another as is calculated to intimidate him and is thereby put in fear and caused to deviate from the course he was pursuing they are guilty ■of an assault; and if they were satisfied that the defendants *337 assembled themselves together with a common design, they were all equally guilty.” Without the conversation which took place between the prosecutor and Braxton Eawles when they first met, which would doubtless have thrown much light upon the whole transaction, the defendants are left in the position of advancing upon the prosecutor under such circumstances as were well calculated to put a man of ordinary firmness in fear. They were five in number, a father and four sons, the language of the father was insulting and threatening, and they had in their possession at least one weapon with which they could have inflicted a mortal wound at the distance to which they approached the prosecutor. An assault is defined to be an offer or attempt to strike the person of another. Here was certainly an offer to strike, not made in one moment and abandoned the next, but pressed upon the prosecutor over a distance of two hundred and fifty yards, and the assault was only prevented from becoming a battery by the agility of the prosecutor. The prosecutor was where he had a right to be, and just been engaged in repairing his fences, which some one had knocked down, and no one had the right by numbers, manner, language, weapons or otherwise to drive him home by a different path or at a different pace than that which he chose to take. What was the prosecutor to do; was he to stand still and submit to a battery ? Can the defendants stand in a more favorable light before a Court of justice merely because their violence was not fully consummated, in consequence of the flight of the prosecutor ? Some stress seems to be laid upon the fact that the gun and other weapons were not taken from the shoulders of those carrying them. As is said in State v. Church, 63 N. C. 16, that makes no difference, for “ that would have been but the work of a mo *338 ment, and was not needed to put the prosecutor in fear and to interfere with his personal liberty.” As has often been said, the rules of law in respect to assaults are plain, but their application is sometimes difficult. Each case must depend upon its own peculiar circumstances. It was contended at bar that as David Rawles alone used insulting and threatening language, there was no evidence tending to criminate his sons. The fact that three of them came with their father and that their brother Braxton joined them when they met and returned towards the prosecutor, was evidence which made it proper for his Honor to submit the whole matter to the jury. In this respect we see no objection to the charge of his Honor, or to the finding of the jury. But we are constrained to grant the defendants a new trial upon the ground that his Honor excluded the conversation which occurred between Braxton Rawles and the prosecutor just preceding the assault. The State introduced the fact that the prosecutor and Braxton Rawles met at the broken fence. Eor. some purpose the prosecution choose to commence the campaign at that point, and to introduce that fact. The general rule that one charged with a crime shall not be allowed to offer what was said in reply in evidence, (because that would be manufacturing testimony for himself) does not apply here, for the crime with which the defendant is now charged had not then been committed, and the conversation, as far as we can see from the record, was about another matter, to-wit: the broken fence, and was therefore .competent as showing the quo animo, and giving character to that meeting. It was as much a part of the res gesta as the fact itself that they met' at the broken fence. The res gesta includes what was said as well as .what was done. State v. Worthington, 64 N. C. 594. It does not clearly appear to us how either the fact of their meeting or their conversation was *339 ■material; but the State having introduced part, must take the whole of the res gestes. There must be a venire ele novo. Let this be certified, &c. Pee Curiam. Venire ele novo.