Blige v. State.

life, or the infliction of bodily injury, and not such instruments as might be utilized for such purpose. Mr. Bishop, in his "Statutory Crimes," says: "The term 'deadly weapon' occurs in the common law of homicide and in various statutes. It is a weapon likely to produce death or great bodily injury. In a case of doubt, the manner in which it was used may be taken into the account in determining whether or not it was deadly. And when the facts are all established, the question whether a particular weapon was deadly or not is one of law for the court; yet practically, as in most instances, the establishment of the fact awaits the rendition of the verdict, the jury must pass upon this question under instructions from the court." The court did not err in refusing to charge as requested by the defendant's counsel. A weapon may be deadly although not especially "designated for offensive and defensive purposes, or the destruction of life, or the infliction of injury.' In the case of State v. Dineen, 10 Minn. 407, where the defendant was indicted for an assault with intent to do great bodily harm, being armed with a dangerous weapon, the court say: "A dangerous weapon is one likely to produce death or great bodily harm. A stone may or may not be a dangerous weapon, depending upon its size and other circumstances. A large heavy stone in the hands of a man intending to do great bodily harm is likely to produce that result," and cites 1 Russ. Cr. 473 (5th Am. ed.) The court might have said with equal truth that such a weapon was a deadly weapon when used as is charged in this indictment, with a premeditated design to effect death. This indictment charges that the assault was made with an "iron weight, being then and there a deadly weapon." There is none of the evidence embodied in the record, and it is impossible for us to tell the length, breadth or diameter of such iron weight. The jury however having such evidence before them under the instructions of the court (none of which are here only as excepted to), have found that such iron weight was a deadly weapon.

"When

In the case of Shadle v. State, 34 Tex. 572, the court say: a gun or pistol is used simply as an instrument to strike with, it is not necessarily a deadly weapon, but would be such or not according to its size and the manner of using it; and these facts should be determined by a jury." In Skidmore v. State, 43 Tex. 93, the same court uses the following language: "Whether a pistol is a deadly weapon, when used to strike with as a club or stick, must

Blige v. State.

depend upon its size or weight in connection with the manner of its use and the part of the person that is stricken with it. A deadly weapon is defined to be one likely to produce death or great bodily injury. A pistol used to strike with is nothing more than a piece of iron of the same size, weight and shape. There may be five or six-shooting pistols so small that they would not, when so used, be likely to produce death or serious bodily injury." See also Chambers v. State, 42 Tex. 254.

wit: wooden clubs."

In the case of Kruget v. State, 1 Neb. 365, cited by defendant's counsel, the court in the opinion says: The indictment fails to charge that the weapons with which the defendants made the assault were deadly weapons, or that the names given to them import that they were such. They were described as being "weapons, toThey say that to warrant a conviction under the section of criminal code of that State under which the indictment was found, it is necessary that the assault be made with a deadly weapon, or with "some other instrument or thing fitted to occasion death, in the use to which it is put. If it be a weapon, the ordinary name of which, ex vi termini, imports its deadly character, e. g., a sword, gun or pistol, it would be sufficient to describe it by such name; but in other cases the instrument or thing used should be described and charged to be deadly."

In State v. Napper, 6 Nev. 113, the indictment was for an assault with a deadly weapon, with intent to commit murder. The court say: "To constitute, then, the crime of which defendant was convicted, he must have made an unlawful attempt with a weapon deadly, either in its nature, or capable of being used in a deadly manner, intending to inflict a bodily injury and with the present ability so to do."

In the case of Hunt v. State, 6 Tex. Ct. App. 663, the court say: "As to whether or not the weapon is, in fact, a deadly weapon, is matter of proof, and depends in some cases upon the mode and manner of its use."

In Kouns v. State, 3 Tex. Ct. App. 13, it is said: "A chair is not necessarily a deadly weapon; whether it is such must depend upon its size or weight, in connection with the manner of its use and the part of the person that is stricken with it."

It will be seen from the cited cases that a gun or pistol made for both offensive and defensive purposes, is not, under certain circumstances, and without due proof, considered by the courts as

Wittich v. First National Bank of Pensacola.

a deadly weapon; while a stone, axe or chair may be considered dangerous or deadly weapons, depending entirely upon the proof of the mode and manner of their use. We believe the true rule is that laid down in the case of United States v. Small, 2 Curt. C. C. 241, inserting the words "deadly weapon," when the words "dangerous weapon is used." It is there said: "In many cases it is practicable for the court to declare that a particular weapon was or was not a dangerous weapon within the meaning of the law. And when it is practicable it is a matter of law, and the court must take the responsibility of so declaring. But when the question is whether an assault with a dangerous weapon has been proved, and the weapon might be dangerous to life or not, according to the manner in which it was used, or according to the part of the body attempted to be struck, I think a more general direction must be given to the jury; and it must be left for them to decide whether the assault, if committed, was with a dangerous weapon." Such is the rule adopted in the case of State v. Riggs, 10 Nev. 284.

The judgment must be reversed for the reasons above assigned, and a new trial awarded.

Judgment reversed.

NOTE BY THE REPORTER. A chisel is a deadly weapon. Commonwealth v. Branahan, 8 Bush, 387; and a pocket knife may be. Sylvester v. State, 71 Ala. 17. A black jack fence pole is not necessarily. Wilson v. State, 15 Tex.

Ct. App. 150. The court said: "It might have so large, heavy and unwieldly as to be harmless in the hands of a man, or it might have been so small or so rotten as not to be at all dangerous." So of a stick, People v. Comstock, 49 Mich. 330.

WITTICH V. FIRST NATIONAL BANK OF PENSACOLA.

(20 Fla. 843.)

Negotiable instrument — action for protesting check.

The plaintiff drew his check on a bank, where he had ample funds, in favor of the defendant bank. It was presented at eleven o'clock for payment, but was not paid, the drawee informing the payee that it was good and would be paid at the close of banking hours, the customary time for exchange of checks between the banks. The defendant thereupon had it protested. Held, that no action would lie therefor, in the absence of allegation of special damage.

A

Wittich v. First National Bank of Pensacola.

CTION of tort. The opinion states the case. The defendant had judgment below

Wm. A. Blount, for plaintiff in error.

John A. Henderson, for defendant in error.

RANDALL, C. J. The declaration in this case in one count alleges that the bank received for collection a draft on the plaintiff Wittich, residing at Pensacola, who gave the bank his check on the Merchants' Bank of Pensacola, where he had ample funds. On the same day before noon defendant presented the check at the Merchants' Bank for payment. The Merchants' Bank told defendant that the check was good and would be paid at half-past one o'clock, the usual hour for exchanging checks between banks, which was according to the established custom of the banks at Pensacola. Defendant, without further demand on the Merchants' Bank, caused the check to be immediately "protested by a public notary, whereby the credit of the plaintiff and his reputation for solvency sustained great injury, to his damage $25,000."

In another count it was alleged generally that defendant received from plaintiff, residing and doing business at Pensacola, his check on the Merchants' Bank of Pensacola, which had ample funds of plaintiff to pay the check, and upon defendant presenting the same to the Merchants' Bank it was not paid, whereupon defendant caused the check to be protested by a public notary, whereby the credit and reputation of plaintiff were greatly injured.

Defendant demurred on the ground that the declaration did not show a cause of action. The demurrer was sustained and judgment rendered for defendant.

The only question is, whether under the circumstances defendant is liable in this suit for causing plaintiff's check to be protested for non-payment.

It has been held that a refusal by a banker to honor his customer's check, if he has sufficient funds in his hands to pay it, is actionable. Marzetti v. Williams, 1 Barn. & Adol. 415; Rolin v. Steward, 14 C. B., 595; 78 Eng. Com. Law; Add. Torts, 11.

But this is not the ground of the present action. The general rule in this country is, that the holder, in order to charge the drawer in case of a dishonor, is bound to present the check for pay

Wittich v. First National Bank of Pensacola.

ment within a reasonable time and to give notice of the dishonor to the drawer within a like reasonable time; otherwise the delay is at his own peril. This is where the drawer has funds in the bank when his check is drawn. Story Prom. Notes, § 493, 6th ed., and notes. But though in such cases notice of demand and refusal to pay is necessary for absolute protection, it is not necessary to protest a check, as it would be in the case of a foreign bill. Morrison v. Bailey, 5 Ohio St. 13; 64 Am. Dec. 632; Pollard v. Bowen, 57 Ind. 234; Griffin v. Kemp, 46 Ind. 172; Jones v. Heiliger, 36 Wis. 149.

A failure to give notice however will not discharge the drawer from liability unless he has suffered by the omission, and then only to the extent of the damage sustained. Story Prom. Notes, § 492.

It was therefore proper on the part of the defendant, the check not being paid on presentation, for his own protection to give notice to the drawer of non-payment. Defendant received the check on account of a claim in its hands for collection, and for that reason exercised proper caution. Though it may have been the custom among the banks of Pensacola to "exchange checks" at the close of the day's business, and plaintiff may have had funds in bank at the time of presentment to meet his check, the defendant could not know that the money would be there at a later period. Although the bank upon which the check was drawn had funds of plaintiff and ought to have paid the check on presentation, and may be liable for not paying it, the defendant does not appear to be responsible for the non-payment. He was clearly pursuing his right in giving notice to the plaintiff and could be held for any injury to plaintiff's credit and reputation growing out of the matter by giving the notice of non-payment.

While a "protest" is unnecessary in case of the non-payment of inland bills and checks of this description, that is, the employment of a notary to give the notice and make a written certificate of the facts of presentation, non-payment and notice under his notarial seal, yet as the holder had a perfect right for his own protection to give the notice, we think he had an equal right to employ another to give the notice for him, and we discover no good reason why, for his own purposes, he may not employ the notary to certify to the fact. In the case of paper not requiring protest the notary's charges are of course not to be paid by the drawer.

"In a very frequent and important use relating to bills of exVor.. LI-80