
    People v. Moore.
    
      (Supreme Court, General Term, Third Department.
    
    October, 1888.)
    1. Assault and Battery—Criminal Prosecution—What Amounts- to an Assault.
    To seize the reins in front of the hands of the driver of a vehicle, and to direct another to take the horses by the heads and turn them, the latter doing so, is an assault, though there is no intention to wound.
    2. Same—Intent to Wound—Evidence.
    An intention to wound not being alleged by the prosecution, disproof of it is inadmissible.
    3. Same—Evidence—Remarks of Assailant.
    The person assaulted may be asked what he understood by the assailant’s remark in the course of the assault, that “the easiest way is the best, ” and may testify that he thought they meant to handle him roughly.
    4. Same—What Pacts are Relevant.
    In a prosecution for an assault, in attempting to exclude a tradesman from a village built on privkte grounds, defendant having given evidence that in connection with the land-owner’s request that such tradesman should be excluded, statements were made showing that it was reasonable that another person named should take his place, the admission of evidence that the latter was a town assessor is not so irrelevant as to require a reversal.
    5. Same—Sufficiency of Warrant—Review—Objections not Raised Below.
    The objection that the affidavit on which a warrant was issued does not state facts sufficient to constitute the offense charged, is not re viewable where the record does not show that the objection was made before the magistrate.
    6. Highways—Dedication—Road to Village.
    One who builds a village upon his land, reserving the title to the thoroughfares over which the public officers exercise no authority, cannot prevent tradesmen from entering it for the purpose of delivering their wares, in order to compel the inhabitants to deal with those nominated by him.
    7. Criminal Law—Conduct of Trial—Right of Magistrate to Enter Jury-Room.
    Though.it is technical error for the magistrate to enter the jury-room during the deliberations of the jury, yet it is not ground of reversal where the jury asked for the form of the verdict in case of an agreement, and he answered “Guilty or not guilty,” and withdrew, and nothing else occurred, Code Grim. Proc. N". Y. § 764, requiring judgment to be given without regard to technical errors not prejudicial to defendant’s substantial rights.
    Appeal from court of sessions, Columbia county.
    John H. Moore was convicted in the court of special sessions of assault in the third degree. The judgment was affirmed in the court of sessions, and he appeals.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      Matthews & Smith, (F. E. Smith, of counsel,)for appellant. A. B. Gardenier, (J. F. Longley, of counsel,) for the People.
   Landon, 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 employ of the Burden Ore & 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, 60 or 70 tenement houses, occupied by its servants and their families, a public store, schoolhouse, and chapel. A post-office is established there. An open road or street wholly upon the company’s lands 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, retains title to the lands, 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 Ahiers, on the 14tli day of March, 1887, intercepted Snyder upon the road leading from the public highway to the village. Snyder 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 Ahiers to take the horses by the heads and turn them around, which Ahiers 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 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 alegalsense, 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 hostilei 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.

"VVe 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 & 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. ISTo doubt it can depopulate its village, and restore its lands to the solitude of its exclusive private dominion. But so 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 of 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 technical error. Code Grim. Proc. § 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 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, and a 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 affiz’med.

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