Superior Court of Delaware, 1862

State v. Russell

Superior Court of Delaware · Decided November 5, 1862 · <italic>The Court, Gilpin C. J., charged the jury.</italic>

1 Houston 122

Counsel

McColley, Deputy Attorney General, after the testimony had closed, waived the felonious charge against Russell. T. F. Bayard, for the defendant, contended that he should be entirely acquitted, because it clearly appeared from the evidence that the attempt to arrest either of them was wholly without cause and wrongful from the beginning on the part of the officers, and made them trespassers ab initio throughout the whole transaction. The defendant was guilty of no affray, no breach of the peace, or of anything having a tendency to a breach of the peace, or of any unlawful act whatever, when he was first rudely and violently set upon and forcibly arrested by these officers, who had themselves been guilty of the first affray and breach of the peace, in their unwarrantable attempt to arrest the defendant under the circumstances.

Opinion of the Court

At this term of the Court Joseph Russell was indicted and tried for an assault and battery committed on David Wingate, a constable and police officer of the City of Wilmington, with intent to murder him. The prisoner with one Fleming and two or three other persons in a state of intoxication met on the side walk of one of the streets of the city between eleven and twelve o'clock at night, and after loud and noisy, but not angry talking, started up the side walk marching in military order and *Page 123 marking time, the prisoner as file leader calling the time and repeating at regular intervals the word "left" in a voice sufficiently loud to be heard a square off, and as they proceeded by a door-step on which Wingate and Reagan, another police officer of the city were seated, the latter admonished them to keep order, or they might find themselves in the city hall prison, to which Russell replied that it would take a d_____d strong man to do that, when Wingate arose and remarking to Reagan that he considered that a defiance, proceeded up to Russell and was about to arrest him, when Fleming who was next to him, interposed to prevent it, and a combat ensued between them in which Wingate was stabbed in the side with a knife by Fleming. In the mean while Reagan had joined Wingate and was contending with Russell who broke away from him and rushed to the relief of Fleming and struck several times at Wingate, but without hitting him. They were both, however, soon overpowered and arrested, and were each indicted at this term for an assault and battery on Wingate with intent to murder. The prosecuting witness Wingate, was at the time one of the constables and police officers of the City of Wilmington, a populous community which finds it necessary to maintain a night watch or police to preserve the peace, order and quiet of the city, and it is in proof that he was on his beat and in the regular discharge of his official duty, at a late hour of the night, between eleven and twelve o'clock, when this noise and disturbance occurred under his immediate view and observation. And on such an occasion such an officer has not only the right, but it is his duty to arrest at his own instance, and without warrant, especially charged as he is with the public peace, good order and quiet of the city, any one disturbing it whenever the circumstances require it.

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