#### STATE v. GOODE.

(Filed April 8, 1902.)

ASSAULT AND BATTERY — Excessive Force — Questions for Jury— Evidence.

Whether a person, indicted for an assault and battery, used excessive force is a question for tbe jury.

INDICTMENT against Lucinda Goode, beard by Judge W. 8. O’B. Robinson, at September Term, 1901, of tbe Superior Court of Waee County. Erom a verdict of guilty and judgment tbereon, tbe defendant appealed.

Tbe prosecuting witness, a white man, went to tbe bouse of defendant, ■ an old colored woman, to collect some money on furniture wbicb bad been sold to ber husband on tbe installment plan. She invited him into ber house and to take a seat; be told bis errand. She said she could not pay, and bis testimony is that be went to examine the bedstead, when tbe defendant batted him on tbe back of bis bead with a baseball bat. On cross-examination, be said be bad removed a covering or two from the bed when he was bit with tbe bat, but that be bad done this only to see if tbe bed was in good condition.

Tbe defendant testified in ber own behalf that tbe prosecutor, accompanied by a negro man, drove up to tbe sidewalk in front of ber house, backed tbe wagon up to the ditch, and both of them got out and came in tbe porch; both were strangers to ber. She invited tbe prosecutor in and gave him a seat in her rocking-chair, bis companion taking a seat on tbe porch. Tbe prosecutor said be bad come for tbe bedstead or tbe money for it. She replied that she did not have tbe money then, and asked him to wait until ber husband came. Tbe prosecutor jumped up out of tbe.chair.swearing, said be bad to have bis money then or. be would take tbe bedstead out of there or. die and go to bell trying. He then walked around tbe table where she was ironing and went to *652the bead of the bed and took a table-cloth that was lying on the bed and threw it on the floor. She told him to go out of her house and to wait till her husband came, and not to take-any more things off that bed. He again swore, and said he was going to' take that bedstead out or die and go toi hell trying, and he then took up an underskirt that was lying on the bed and threw it down on the floor and began to throw back the covering. She again told him to go out of her house and let her things alone, and he kept on throwing back the covering and started to throw back the mattress, and as he started to do this she picked up a small baseball bat that her boy played with, and walked up' to the bed and said, “Let my things alone”; and as she did this, he turned sideways at her and drew back his. fist and said, “You must be a damned fool,” and she hit him with the bat.

Being asked the question why she hit the prosecutor with the bat, she said, “Because he would not let my things alone and go on out of my house.” She was corroborated by several other witnesses. His Honor, upon the above evidence, charged the jury that the defendant was, upon her own testimony, guilty of using excessive force upon the prosecuting witness, and instructed the jury to find the defendant guilty. Verdict accordingly. • Defendant excepted to the charge. The Court sentenced the defendant to thirty days in the workhouse.

Robert D. Gilmer, Attorney-General, and J. G. L. Harris, for the State.

W. L. Watson, for the defendant.

Clark, J.

Whether there was excessive force used or not was a question for the jury, not for the Court. The defendant’s testimony was fuller than that of the prosecutor, But was not contradicted by him, and taking.it to.be true,, as his Honor assumed, and as must be done on the virtual demur*653rer to ber evidence, these are tbe facts: Two strangers, one of them a white man, came to the defendant’s home; she invited the latter in politely, and gives him her rocking-chair; without showing any credentials, he demands pay for her bedstead; upon her saying she had no' money and asking him to wait till her husband came, tbe prosecutor jumps up violently, and swearing he would take the bedstead or go to. hell trying, he throws her table-cloth and underskirt on the floor. She tells him to let her things alone. As she was ironing,, presumably those things were freshly washed and nicely starched and ironed, and he must have known that to throw them on the floor would rouse her ire. Then he laid his profane hands on the paraphernalia of her bed and began to throw back the bed clothes and to. lift the mattress, all of which would speedily have gone, of course, upon the floor. The defendant would not have been a woman if she had stood that. She seized her little boy’s baseball bat and told him to let her things alone and leave the house, when he squared off at her, drawing back his fist, and called her “a damned fool,” whereupon very naturally she batted the back of his head. It was probably a “left-fielder,” for the prosecutor soon after-left that field. The counsel for the prosecutor tells us he left because he did not wish to provoke a difficulty. It is doubtful if he could do more to provoke a woman, which is sometimes worse, and it would seem that he left rather than to-collect another installment on the batting.

The woman was in her own house. If her evidence is true,, and it must be so taken on this appeal, she treated the prosecutor politely, and he returned her politeness by swearing, throwing her things on the floor, throwing back the bed clothes and mattress, and avowing his intention to carry off' her bedstead, at the direst hazard to his soul, and drawing-back his fist at her, and cursing her when again told to desist. It can not be said, asi a matter of law, with two men againsi her, and in her own house, she used excessive force in pro--*654tecting ber person, ber borne and ber property. In view of bis violent conduct and language, and refusal to bebave or to leave, could sbe bave secured ber rights in ber own borne or bis departure by tbe use of less force? Could sbe with safety to ber person bave laid bands on bim more gently? If, on another trial, tbe evidence being tbe same, it shall be held that this was excessive force, a jury must so declare it. This Court can not.

Sir Edward Coke (3 Inst., 162) says: “A man’s bouse is bis castle, et dornas sua, cuique tuiissimum refugium/’ which last is a literal quotation by bim from tbe famous Corpus Juris Civilis of Justinian, and is to be found in tbe Pandects, lib. II, tit. IY, De in Jus Vocando. And another great lawyer and statesman, whose name is borne with honor by two of our counties, William Pitt, Earl of Chatham, used this ever memorable expression: “Tbe poorest man may in bis cottage bid defiance to- all tbe forces of tbe Crown. It may be frail; its roof may shake; the wind may blow through it; tbe storms may enter; tbe rain may enter — but tbe King of England can not enter. All bis forces dare not pass tbe threshold of the ruined tenement.” Tbe old colored woman knew naught of legal lore, but sbe bad an instinctive sense of ber rights, and, by means of tbe wooden wand touched to tbe back of witness’ bead, she communicated electrically to bis brain the same conception more effectually than if sbe bad read to bim the above citations.

This home was an bumble one; tbe bedstead on which defendant slept may not bave been fully paid for, but tbe prosecutor bad no' right to enter that home and misbehave, or refuse to leave when ordered out, still less to carry off any property therefrom, unlessi be bad been an officer with a legal precept so to do, and tbe occupant of that home bad tbe right to use sufficient force to make him leave and to abandon bis attempt to carry off tbe bedstead, and to stop bis handling of tbe other *655property — in short, to make him “leave her things alone,” as the defendant repeatedly told him -to do.

Whether the force used by the defendant was excessive is matter for a jury. Indeed, if this evidence is to be believed, the prosecutor was a law-breaker, and is himself in jeopardy of the judgment for his violence and his defiant disregard of the rights of the defendant. Suppose this defendant had been white, and the prosecutor a negro man. The law is impartial, and extends the same protection to all alike.

Error.