## Facts

- Thomas Donahue bought clothing from Mitchelman for $21.55 and later met him at Donahue’s home for payment.
- Donahue disputed the amount owed, produced the clothes, and put $20 on a table, telling Mitchelman he could take either the money or the clothes.
- Mitchelman took the $20 and immediately asserted Donahue still owed $1.55.
- Donahue demanded the money back; Mitchelman refused.
- The Commonwealth’s evidence was that Donahue then assaulted Mitchelman, choking him until Mitchelman handed over a pocketbook containing $29.
- At trial, the judge stated he would instruct that Donahue could be found guilty of assault even if his only motive was to recover money he honestly believed was his own.
- After saving exceptions to that announced instruction, Donahue presented no evidence; the jury was instructed as announced and convicted him of assault (though indicted for robbery).

## Issues

1. Whether, and under what limits, a person may use non-deadly force to recapture money wrongfully taken from his possession as part of the same encounter.
2. Whether the trial court erred by instructing that an assault is criminal even if committed solely to recover money the defendant honestly believed belonged to him.

## Decision

- The Supreme Judicial Court sustained Donahue’s exceptions and set aside the assault conviction.
- The court held the instruction was legally overbroad because it foreclosed a possible justification based on recaption of property.
- The jury could have found Mitchelman wrongfully took the specific $20 because it was offered only on the condition that it be accepted as full payment, and that condition was immediately repudiated.
- If the taking and retaking were part of one continuous transaction, the jury should have been allowed to consider whether Donahue used only reasonable, non-deadly force to reclaim what was wrongfully taken.

## Legal Principles

- A conditional tender of money may remain wrongfully in the recipient’s hands when the recipient immediately repudiates the condition, permitting the factfinder to treat the specific money as wrongfully taken.
- A person may use reasonable, non-deadly force to promptly retake personal property wrongfully taken in his presence when the events form a single, continuous transaction.
- The privilege of recaption is limited: force must be proportionate and may not be deadly or likely to cause serious bodily harm.
- A jury instruction that categorically makes recaption-based force unjustifiable, regardless of wrongful taking and reasonableness of force, misstates the law by removing a material defense from the jury.

## Conclusion

The court reversed because the jury was instructed that Donahue’s assault could not be justified even if aimed solely at recovering his own money; Massachusetts law permits reasonable, non-deadly force to promptly recapture property wrongfully taken in the same encounter, and the jury should have been allowed to assess that defense and the reasonableness of the force used.


Commonwealth v. Donahue, 148 Mass. 529, 20 N.E. 171 (Mass. 1889)