Page:The Green Bag (1889–1914), Volume 10.pdf/413

 380

ing or disturbing, as in the case of a char ivari, is sufficient to constitute the offence, as where " the captain of the dog-tailed dra goons," with his familiars, went about mak ing night hideous. State v. Brazil, Rice, 258. In State v. Brown, 69 Ind. 95; 35 Am. Rep. 210, the defendants serenaded a newlywedded pair with bells, trumpets, tin pans, and cannon, producing, as the Court said, "a concert much more entertaining to the performers than it is to the audience," and evincing such "zeal and earnestness" as to be held a riot. Continuing in recent times, there is a group of significant American cases under this head. In Parker v. Enslow, 102 Ill. 272; 40 Am. Rep. 588, the defendant kept a box of smoking tobacco on his counter for the gratuitous use of the public. The plain tiff was in the habit of filling his pipe there from, as was known to the defendant. The defendant, by way of joke, put gunpowder with the tobacco, and the plaintiff, filling his pipe therefrom, was injured by the explosion, which he claimed " sounded in damages," and the defendant executed to him the note in suit therefor. Held, a valid note. In Daingerfield v. Thompson, 33 Gratt. 136, 36 Am. Rep. 783, three persons at mid night demanded admittance to a restaurant which was closed for the night, but had a light burning within. Admittance being re fused, one of them went to a side door, en tered, and told the keeper that one of the others wanted to come in. The others, being at the front door, one of them, being drunk, said to the other, "Shall I give him a salute?" The other replied, "Yes, give the damned black Republican a salute," and stepped back. The man with the pistol fired, and severely wounded the keeper, who was opening the door. There was an ordi nance prohibiting the discharge of firearms in the street. The adviser tried to get off on the plea that he expected the other to fire into the air, and " did not expect that he was damned fool enough to shoot into the

house." But as he overrated his compan ion's intelligence, the Court held him as well as the shooter responsible. For a long time there seems to have been an impolitic and misguided tenderness among the judges, or at least in the juries, for those careless persons who " didn't know it was loaded," and were uniformly over come by remorse on learning of their fatal mistake. An ass of this description, trying to frighten a woman with a revolver, and unintentionally killing her, was held guilty of manslaughter, in State v. Hardie, 47 Iowa, 647; 29 Am. Rep. 496. The Court judiciously observed: "Human life is not to be sported with by the use of firearms, even though the person using them may have good reason to believe that the weapon used is not loaded, and that being loaded, it will do no injury. When persons engage in such reckless sport they should be held liable for the consequences of their acts." The same was held in State v. Vines, 93 N. C. 493; 53 Am. Rep. 466, even though the victim told him to " shoot and be damned." The defendant fired and killed the other, but whether he has fulfilled the remainder of his victim's aspiration does not yet appear. The contrary was held in Robertson v. State, 2 Lea, 239; 31 Am. Rep. 602, the victim as well as the prisoner supposing the weapon to be unloaded, and both being engaged in a frolic. The Court, however, seem to rec ognize the soundness of the doctrine of the State v. Hardie. InWartman v. Swindell, 54 N. J. L. 589; 18 L. R. A. 44, the syllabus is as follows : — "If in an action of tort, the defendant re lies upon the defense that the act he did was by way of a joke.'it is a question for the jury to decide whether the parties had been per petrating practical jokes upon each other in such a way that the defendant had a right to believe that the plaintiff would accept his act as a joke, "The maxim de minimis non curat lex does not apply to the positive and wrongful