Wilson’s Red Book, 31
Court of Quarter Sessions of Delaware.
November, 1794.
Evidence that defendants and two others by leave of the captain of a militia company on a muster day rode as light horse, and charged the company twice by riding through them. The first time no harm was done; the second time William Russel’s horse and another’s (but not Harris’s) struck and very much injured one of the company. All the witnesses agree it was not done with design, but was an accident.
Wilson urged for Russel that in this case if there was no battery there was no assault; and there was no battery, for it was done without design and not in the commission of an unlawful act, for it was by leave of the captain. Bayard urged for Harris that he had done nothing from which evil had flown, that his being
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present with those who had done an accidental harm did not make him guilty.
PER CURIAM.
Gentlemen of the jury, it is impossible almost for men on untutored horses to ride through a company of men standing elbow and elbow, two deep, without doing injury.[1] It is no excuse for one to say he did no mischief, for, if harm was done, all are guilty.
Notwithstanding the charge, the jury acquitted Harris but found Russel guilty, whom the Court fined fifteen dollars.