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to a woman,1 do not amount to assaults. Again, mere preparation to do a violent injury to another, with no attempt to actually commit such act, is not an assault. Thus, picking up a stone, with no attempt or threat to throw it, is not an assault."7

19

The kind of physical force employed, however, is immaterial; and a very slight exercise of such force may be sufficient to constitute the assault. Raising a stick over a person's head and threatening to strike if he does not keep quiet; 18 throwing a stone at a person; pointing a loaded fire arm at a person; attempting to drive over a person; 20 improper actions towards a female; 21 throwing vitrol at a person; 22 or even turning to a person with a clenched fist and saying, "I have a great mind to strike you," all constitute assaults. Chasing a person,23 or advancing towards him in a threatening manner," are likewise assaults.

There can, however, be no assault, without motion

16 State vs. White, 52 Mo. App., 285. 17 Brown vs. State, 95 Ga., 481, 20 S. E., 495.

18 United States vs. Richardson, 5
Cranch (CC.), 348.

223. The knowledge or lack
of knowledge of the fact that
the gun is unloaded, by the
person pointing the gun can
never be satisfactory test of
liability.

10 People vs. Morehouse, 6 N. Y.
Suppl., 763; State vs. Sullivan,
43 S. C., 205, 21 S. E., 4. There
is a great conflict among the
decisions upon the question as
to whether pointing an un-
loaded gun at a person will
likewise constitute an assault.
For a decision holding that it
will, see Commonwealth vs.
White, 110 Mass., 407. For
a decision to the contrary, see
Chapman vs. State, 78 Ala.,
463. The best test in such cases
would probably be whether the
person at whom the gun was
pointed had reason to believe
that it was loaded. See, State
vs. Shepard, 10 Iowa, 126.
Beach vs. Hancock, 27 N. H.,

20 People vs. Lee, 1 Wheel Crim.,
364.

21 State vs. West, 39 Minn., 321, 40
N. W., 249. This would in-
clude having sexual intercourse
with a woman who consents
thereto under mistake, such
as that the party is her hus-
band (Reg. vs. Williams, 8
C. A. P., 286), or that he is
giving her proper medical
treatment. Reg. vs. Case, 4
Cox, CC. 220.

2 People vs. Stanton, 106 Cal.,
139, 39 Pac., 525.

23 Morton vs. Shapee, 3 C. & P., 373.
"Stephen vs. Myers, 4 C. & P., 349,
193 C. L., 414.

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of some kind. Standing still in front of a person to obstruct his way does not amount to an assault.25 It is also necessary that the force should have been directed against the person bringing the action for the assault.

In an assault it is unnecessary that the force exerted shall reach the person at whom it was directed. This right of action for an assault, unaccompanied by a battery, has been recognized since as early as the middle of the fourteenth century, when damages were awarded in a case where a hatchet was thrown by a nocturnal disturber at a woman who put her head out of a window.20

It is often said that in order for there to be an assault, there must be an intention to commit a battery. This is not strictly correct; it is sufficient if his acts would indicate such intention to a person of ordinary courage. It is certain that if there is an intention to frighten a person, although with no intention of really injuring him, this is sufficient to constitute an assault. Thus, where a person standing about fifty feet from another fired his revolver in the direction of such other person, without any intention of shooting such person, but for the purpose of frightening or alarming him, intending thereby to create the impression that he would injure him by shooting, he was held guilty of an assault.27

There must also be a present ability, either real or apparent, on the part of the party making the threat to carry out such threat.28 In People vs. Dodel,29 the

24 Stearns vs. Sampson, 59 Me., 568. *Y. B. 22 Ass., 99, pl., 60.

State vs. Triplett, 52 Kan., 678, 35 Pac., 815.

Hays vs. State, 77 Ind., 450;

State vs. Godfrey, 17 Ore., 300; Spears vs. State, 2 Tex. App., 244.

99 77 Cal., 293; 19 Pac., 484.

decision of the lower court was reversed on account of the refusal of the Court to give the following instructions: "To constitute an assault the defendant must have the intent to strike, the ability to do so, and must have made the attempt to strike." An attempt to commit violence, accompanied by acts which if not interrupted will be followed by personal injury, is sufficient to constitute an assault, although the assailant may not be at any time within striking distance.30 It is even possible to commit an assault without being present, as where an explosive machine is sent through the mail.31

SECTION 17. BATTERY.

A battery is a consummated assault. Where a person is injured by force, wrongful intent on the part of the person responsible for such force is not essential to liability.32 Where no injury results the question of intent may become important.33

As in the case of assault, a battery may be committed in an almost infinite number of ways. The more common forms such as striking, kicking, hitting with a weapon or missile, etc., at once occur to everyone. In addition, striking a horse which another person was riding; 34 or striking a cane which he carried in his hand; or putting any objectionable matter in the food or drink of another person; 36 or putting disease germs on a towel; " or touching a woman for

35

so 3 Cyc, note p. 1025; State vs.
Malcolm, 8 Iowa, 413; Berkely
vs. Conn., 88 Va., 1017, 14
S. E., 916.
People vs. Pope, 66 Cal., 366,
5 Pac., 621.

39 Street's Foundations of Legal
Liability, Vol. I, p. 4.

83 See Section 19.

34 People vs. Moore, 50 Hun., 356.
* Respublica vs. De Longchamps,
1 Dall (Pa.), 111.

38 State vs. Monroe, 121 N. C., 677,
28 S. E., 547; Commonwealth
vs. Stratton, 114 Mass., 303,
19 Am. Rep., 350.
"People vs. Blake, 1 Wheel (Crim.),

490.

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38

improper purposes; or even the slightest touching of another in anger or disrespect are all batteries.39 Intent is not a necessary element in a battery. For example, where two persons were fighting and one of them accidentally gave a bystander a black eye, he was held guilty of a battery.10

SECTION 18.

AGGRAVATED ASSAULTS OR BATTERIES.

An aggravated assault or battery is either one which occurs in the commission of some other, and more serious, offense, or one done under circumstances or in a manner which adds to the enormity of the act. The following are examples of what have been held to be aggravated assaults or batteries:

An assault by an adult on a child;"1 or an assault on a decrepit person.

42

An indecent assault.13

An assault with a deadly weapon."

45

An assault committed in a court of justice; 5 or in the house of a private family.

46

An assault committed in such a way as to inflict disgrace, as by horsewhipping the party injured."

"To touch a virtuous wife in the
way of illicit love is a far greater
outrage than to touch her in
anger, and equally a breach
of the peace. It is violence
proceeding from lust, instead
of violence proceeding from
rage. It issues from the
passion, which, unrestrained,
culminates in rape, instead of
from the passion which cul-
minates in homicide." Good-
rum vs. State, 60 Ga., 509, 511.
"The hostile hitting or touching,
though it falls short of an
actual burt, it is treated as a
battery because it tends to
provoke a quarrel and is in
fact itself a breach of the peace.
Here, 'the insult is more to be

considered than the actual damage." McKean C. J., in Respublica vs. DeLongchamps, 1 Dall (Pa.), 114. Street's Foundations of Legal Liability, Vol. I, p. 6.

40 James vs. Campbell, 5 C. & P.,
372; 24 E. C. L., 367.

41 Ellerson vs. State, 16 Tex. App.,
6; 49 Am. Rep., 824.
"Hall vs. State, 16 Tex. App., 6;
49 Am. Rep., 824.
People vs. Hicks, 98 Mich.,

86;

56 N. W., 1102.

People vs. Vanard, 6 Cal., 562;
State vs. Godfrey, 17 Ore., 300;
20 Pac., 625.

"State vs. Hunter, 44 Tex., 94.
48 State vs. Cass, 41 Tex., 552.
47 Coolidge vs. State, 24 S. W., 1094.

An assault by cutting or shooting."
Any assault which results in serious injury.
SECTION 19. ACTS WHICH DO NOT CONSTITUTE AS-
SAULTS OR BATTERIES.

The term "justifiable assault," which is often used, is an unfortunate and inaccurate one, as the word assault carries with it the element of unlawfulness. There are, however, certain instances where the application of physical force to another, or even the infliction of severe bodily injury, will not amount to an assault or battery.

First among the defenses which may be made is that the person inflicting the injury acted in selfdefense.50 If a person is himself assaulted he may repel force with force.51 To support a plea of selfdefense, however, there must be some actual attempt or offer to do bodily harm, or defendant must have had reasonable ground to apprehend a design on the prosecutor's part to commit a felony on him or do some great bodily harm, and that there was imminent dan

VS. Branham,

48 Commonwealth 8 Bush, 387.

60

49 Hadley vs. State, 58 Ga., 309. "Notwithstanding the defense of self and of one's own has long been recognized as a good justification for a battery, it appears that originally it was not so. Certainly in case of homicide the ancient doctrine was that self-defense was not a good plea. The man who was so unfortunate as to have to slay another to save himself was required to surrender and was remitted to jail, where he might hope to receive royal clemency. 3 note book, pl. 1216 (Å. D., 1236), Y. B., 21 Edw., 11, 17, pl. 22; Fleta, Lib. I. C., 23, par. 14, 15. In Y. B.,21 and 22, Edw. I 12 (Rolls Ed.), p. 586, and Y.B., 12

Edw. II, 381, it was held that
self-defense was not a good
justification for a battery.
Later year-book authorities
very cautiously and guardedly
admit the defense. Thus, in
Y. B., 33 Hen. VI, 18 pl., 10,
Privot, C. J., in recognizing the
right of self-defense lays great
emphasis on the duty to re-
treat. See also Y. B., 2 Hen.
IV., 8 pl., 40, and Y. B., 21
Henry VIII, 39, pl. 50,
where
with qualifications, the doc-
trine of self-defense is admit-
ted." Street's Foundations
of Legal Liability, Vol. I, note
to p. 7.

51 State vs. Goering, 106 Iowa, 636;
State vs. Carner, 89 Me., 74,
35 Atl., 1030; State VS.
Hutchings, 24 S. C., 142.

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