SPRUANCE, J.
Jeremiah Harrigan was convicted of wife-beating.
Argued before SPRUANCE and GRUBB, JJ.
Robert H. Richards, Dep. Atty. Gen., for the State.
Daniel O. Hastings, for defendant.
SPRUANCE, J. (charging jury): Jeremiah Harrigan stands indicted under a statute passed by the Legislature of this state on February 22, 1901, the material part of which is: "That if any person being the husband of any woman, shall assault and strike or beat his wife he shall be deemed guilty of a misdemeanor." 22 Del. Laws, p. 493, c. 204. The charge in this indictment is "that Jeremiah Harrigan, being then and there the husband of a certain woman, to wit, Elizabeth Harrigan, did then and there assault and beat her, the said Elizabeth Harrigan, she, the said Elizabeth Harrigan, being then and there the wife of the said Jeremiah Harrigan."You will notice that this offense is not an ordinary case of assault and battery. It is a statutory offense, and to convict, you must be satisfied from the evidence that this man is the husband of the woman who is alleged to be his wife, and that he did assault and beat her.
The counsel for the defendant has asked us to say to you that, if you are satisfied from the evidence that Jeremiah Harrigan struck his wife but a single blow, that you cannot convict him under this indictment. We cannot so instruct you. You have heard the evidence, and you may find him guilty if you find from the evidence that he struck her only a single unlawful blow. Of course, you are to consider the character of the blow and whether it comes up to the measure of beating. As you have often been told, an assault is an unlawful attempt to do violence to the person of another, and a battery is the actual accomplishment of such attempt. No mere words, however opprobrious or vexatious they may be, will justify even an assault, much less a battery. Where one is assaulted it is his first duty to get out of the way. If he cannot reasonably do so, he may use just so much force as is necessary to stay the act of violence against him, or to protect his life or his person from injury. If he uses more force than is necessary for the purpose, he is himself guilty of an unlawful assault. If you find that Jeremiah Harrigan did assault and beat his wife, it is your duty to find a verdict of guilty. If, on the contrary, upon all the evidence, you are not so satisfied, you are bound to find a verdict of not guilty.
Verdict: Guilty.