
    The People of the State of New York, Resp’ts, v. John H. Moore, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed October, 1888.)
    
    1. Criminal law—Assault—What constitutes.
    One receives bodily harm in a legal sense when another touches his person against his will with physical force intentionally hostile and aggressive, or projects such force against his person.
    3 Same—Turning one’s horses against his will is an assault.
    It was an assault for a person who, with a companion, met a third seated on a sleigh driving his team, stopped him, seized the lines in front of the driver, and told his companion to take the horses by the head and turn them round, which was immediately done, remarking, "the easiest way is the best way.”
    3. Village laid out on private property—Rights op public.
    Where a company owning a large tract of land, laid out a village connecting the streets thereof with a public thoroughfare, and built houses thereon which were rented, and established schools, stores and a postofflce therein, by so doing it subjects its private property to the law which regulates public rights although it continues to own the streets of the village, and has never asked the county authorities to care for them. The company can depopulate its village, and restore its land to its exclusive private dominion, but so long as it has the bene.-.t of public association and communication, it must accept the burdens necessarily and properly incident to them. By reserving a legal title to the thoroughfares of the village, it does not reserve autocratic power of all residing along them.
    4. Same—Owner op property cannot prevent tradesmen selling GOODS IN STREETS OP.
    A company which has laid out a village with streets on its own land, and connected the same with the public thoroughfares, cannot prevent a person not living on its property from peddling merchandise in the streets of said village, or delivering wares ord red by the dwellers in said village.
    Appeal from the judgment of the court of sessions of Columbia county, affirming the judgment of conviction of the defendant of assault in the third degree, rendered by the court of special sessions upon the verdict of a jury, and also of sentence upon such conviction.
    This is an appeal by the defendant, from a judgment rendered by the court of sessions of Columbia county, and entered in the clerk’s office of said county, on the 14th day of November, 1887, affirming a judgment of conviction for the crime of assault in the third degree, rendered against the defendant at a court of special sessions, April 2, 1887, upon a trial before Jacob A. Hallenbeck, Esq., a justice of the peace of said county, and a jury. At the time of the alleged assault, the defendant was in the employ of The Burden Ore and Iron Company, a corporation engaged in mining iron ore and preparing it for market, upon its property in the town of Livingston, Columbia county. Some three or four years before the assault, this company erected near its mines in said town, a large number of tenement-houses, which were built in rows upon opposite sides of streets, to the number of some sixty or seventy. The place was known as the Village of Burden. Besides the tenements, there were in the village, the company’s offices, shops, etc., a public store, a post-office by the name of Burden. at which people in the vicinity received their mails, a district school, with teachers furnished by the trustees of the town, and a church or place of public worship. The village was not fenced in, in any way, and there were no gates upon nor across any of the streets. The complainant Snyder had been for some time before the assault, engaged in the business of selling milk to the inhabitants of the village. For reason^ of their own, the Burden Company desired to have another man sell milk there, and forbade Snyder to sell any more in the village. He continued his visits, however, and a few days after being forbidden, on coming as usual upon one of the streets of Burden on his way to a customer's house, where he had been requested to deliver some apples as well as milk that day, he was set upon by the defendant and another of the company’s servants, acting under orders of the superintendent at the mines, and the assault of which the defendant was convicted was committed.
    
      Matthews & Smith, Frank E. Smith, of counsel, for app’lt; A. B. Gardenier, J. F. Longley, of counsel, for resp’ts.
   Lardon, J.

The material facts are not in dispute. The main questions are whether the conceded facts show that the defendant committed an assault upon the complainant, and if so, whether the assault was justifiable.

The defendant was in the ehiploy of the Burden Ore and Iron Company. This company owns a large tract of land in Livingston, Columbia county, and has in the development of its business created upon its lands, the’so called village of Burden.

This consists of the company’s offices, shops, sixty or seventy tenement-houses occupied by its servants and their families, a public store, school house and chapel. A post office is established there. An open road or street wholly upon the company’s hands leads from the public highway to the village. The. tenement-houses of the village are in rows upon both sides of the village streets. All these streets and roads are open and to every appearance are public highways. The company, however, retained title to the land and the public authorities have not claimed or assumed any authority over them.

The complainant Snyder was a peddler of milk and vegetables and had customers for his supplies in this village. The company desired him to discontinue his traffic in the village, and to give it to another person. It notified him that the village and its streets were its private property, and that he must not sell milk there any more. He refused to discontinue. The company directed the defendant to keep him out of the village, but to use no more force than was necessary for the purpose and to be careful not to do him personal injury. The defendant in pursuance of this direction, assisted by one Ahlers, on the 14th day of March, 1887, intercepted Snyder upon the road leading from the public highway to the village. Synder was alone, was seated in his sleigh driving his team of horses on his way to deliver milk to his customers and especially some apples which had been ordered by one of them. The defendant told Snyder he was trespassing and that he had orders to stop him. Snyder attempted to drive on. The defendant then seized the lines in front of Snyder’s hands, told Ahlers to take the horses by the heads and turn them around, which Ahlers immediately did, the defendant at the same time remarking that, “ the easiest way is the best way.” When the team and sleigh with Snyder in it had been turned around, defendant barred the passage towards the village with an iron pipe. Snyder thereupon drove away.

Defendant urges that this was no assault, for the reason that there was no intention to hurt Snyder and that he did not lay his hands upon him.

It is plain, however, that the force which he had applied to the horses and sleigh just as effectually touched the person of Snyder as if he had taken him by his ears or shoulders and turned him right about face. The horses and sleigh were the instruments with which he directed and augmented his personal and physical force against and upon the body of Snyder.

Snyder did receive. bodily harm. One receives bodily harm in a legal sense when another touches his person against his will with physical force intentionally hostile and aggressive, or projects such force against his person. Here for the moment Snyder was deprived by the defendant of his own control of his own person, and he was controlled, intimidated and coerced by the hostile, aggressive, physical force of the defendant. The offer to prove that bodily harm was not intended was made in the face of the defendant’s testimony that he intended to do just what he did do.

The obvious purpose was to prove that there was no intention to wound or bruise the defendant, or cause him physical pain. So long- as this was not claimed or proved on the part of the prosecution, disproof of it was properly rejected, for the reason that such disproof would have raised or suggested a false and immaterial issue, tending possibly to the miscarriage of justice.

We assume that if Snyder was a trespasser, the assault was justifiable, for no more force was used than was reasonably necessary to eject him from the premises. But he was not a trespasser. The streets leading to and about this village were made and opened by the Burden Iron and Ore Company for such public use as was incident to the wants, convenience and happiness of the people residing there. To the extent of this public use, the company subjected its private property to the law which regulates public rights. Munn v. Illinois, 94 U. S., 113.

No doubt it can depopulate its village and restore its lands to the solitude of its exclusive private dominion.- But as long as it enjoys the benefits of public association and communication it must accept the burdens necessarily and properly incident to them. By reserving the legal title to the thoroughfares of its village, it does not reserve autocratic powers over the people residing along them. To prevent the members of its community from buying supplies from Snyder, or of any tradesman not nominated by the company, would be to introduce a badge of vassalage inconsistent with our free institutions. If these families may buy of Snyder, then he may deliver his wares to them, and use for the purpose the appropriate thoroughfares. The assault was, therefore, not justifiable.

After the jury had retired to consider of their verdict, they sent word to the magistrate to come to their room. He entered their room alone. • They then asked him the question, what should be the form of their verdict in case they had agreed upon it. He answered “guilty or not guilty,” and then withdrew.

It affirmatively appears that nothing else occurred. This was a testimonial error. Code Criminal Procedure, section 427.

Section 764 requires us to give judgment “without regard to technical errors or defects which have not prejudiced the substantial rights of the defendant.”

In the People v. Cassiano (30 Hun, 388), the court could see that an error somewhat similar was prejudicial to the defendant. If we could not see that the error in this case was harmless we probably would reverse the judgment. But as we do see that it was harmless we disregard it.

It is now urged that the affidavit upon which the warrant was issued did. not state facts sufficient to constitute the offense of assault in the third degree. It does not appear from the return that this objection was taken before the magistrate. If it in fact was taken anda review of the-decision of the court below upon the objection was desired,, an amendment of the return should have been procured.. As it now is, no ruling of the court upon the objection is-before us.

The defendant objected to the question put to Snyder, what he understood by defendant’s remark that “the easiest way is the best.” He answered that he thought they meant to handle him roughly.

We think the question and answer not improper. The words were intended to take effect. Defendant was responsible for their effect, if their actual effect was within their reasonable meaning under the circumstances. It was proper for the jury to know what effect the spoken acts of the defendant had upon the complainant in connection with his application of physical force. They could see that they might intimidate; and not to permit them to know that they did intimidate, would be to withhold from them part of the whole truth.

The people were permitted to prove that the person who the company desired should supersede Snyder in the milk traffic of the village was an assessor of the town of Livingston. The defendant had given evidence showing that in connection with the company’s request of Snyder that he should discontinue selling milk in the village, statements had been made to him tending to show that it was proper and reasonable that Mr. Schults should take his place. Since the defendant thus placed certain reasons for the company’s action before the jury, the additional fact that Mr. Schults was an assessor was not so obviously remote as to enable us to say that it was wholly irrelevant to the consideration of the reasons which the defendant had been permitted to adduce.

The judgment of the court- of sessions should be affirmed.

Learned, P. J., and Ingalls, J., concur.  