distance, which fails of its intended effect, either by preventive interference, or by misadventure." " "An attempt to strike in striking distance, or shoot in shooting distance." 8 Battery has been defined as follows: "A battery, or, as it is sometimes called, an assault and battery, is an unlawful touching of the person of another by the aggressor himself, or by any other substance put in motion by him."" "An unlawful touching of the person of any individual, in a rude or angry manner, without justification." 10 "An unlawful touching, in either a rude, an insolent or an angry manner.' SECTION 16. ASSAULT. The essential elements in an assault are the threat, some exercise of force, the present ability to commit the battery, and the reasonable belief on the part of the party against whom the threat is made that it will be, or is likely to be carried out. In every assault there must be a threat, but this threat may be, and in the great majority of cases is, by actions rather than by words. The necessary threat is in general included in the exercise of force, which is also a necessary element in an assault. This force must be physical," mere words are never sufficient by themselves to constitute an assault.13 Thus, insulting language," refusal to leave land upon which the party is trespassing,15 or improper proposals Lane vs. State, 85 Ala., 11, 14, 4 So., 730. 8 Gray vs. State, 63 Ala., 66, 73. 3 Cyc, 1021. 10 State V8. Harden, 2 Speer, 13 1 Hawkins, P. C., 6281; State vs. 14 State vs. Milsaps, 82 N. C., 549. 275. to a woman," 16 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 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; 19 attempting to drive over a person; 20 improper actions towards a female; " 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, or advancing towards him in a threatening manner," are likewise assaults. 21 23 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. 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 unloaded 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., 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. 20 People vs. Lee, 1 Wheel Crim., 364. 21 State vs. West, 39 Minn., 321, 40 N. W., 249. This would include having sexual intercourse with a woman who consents thereto under mistake, such as that the party is her husband (Reg. vs. Williams, 8 C. A. P., 286), or that he is giving her proper medical treatment. Reg. vs. Case, 4 Cox, CC. 220. 22 People vs. Stanton, 106 Cal., 139, 39 Pac., 525. It of some kind. Standing still in front of a person to obstruct his way does not amount to an assault.25 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.28 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 25 Stearns vs. Sampson, 59 Me., 568. 26 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. 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; 35 or putting any objectionable matter in the food or drink of another person; 36 or putting disease germs on a towel; 37 or touching a woman for 30 3 Cyc, note p. 1025; State vs. Malcolm, 8 Iowa, 413; Berkely vs. Conn., 88 Va., 1017, 14 S. E., 916. 31 People vs. Pope, 66 Cal., 366, 5 Pac., 621. 32 Street's Foundations of Legal Liability, Vol. I, p. 4. 83 See Section 19. People vs. Moore, 50 Hun., 356. 35 Respublica vs. De Longchamps, 1 Dall (Pa.), 111. 36 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. improper purposes; 38 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." 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.12 An indecent assault." 43 An assault with a deadly weapon." 45 An assault committed in a court of justice; 15 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. 38 "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 culminates in homicide." Goodrum 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 47 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. Ellerson vs. State, 16 Tex. App., 6; 49 Am. Rep., 824. Hall vs. State, 16 Tex. App., 6; 49 Am. Rep., 824. 43 People vs. Hicks, 98 Mich., 86; 56 N. W., 1102. 44 People vs. Vanard, Cal., 562; State vs. Godfrey, 17 Ore., 300; 20 Pac., 625. 45 State vs. Hunter, 44 Tex., 94. . |