$236. False imprisonment defined.

§ 237. False imprisonment, how punished.

7,8. What constitutes false imprisonment— As to generally.

9. Same Person assisting officer. 10. Same-Volunteer in arresting another.

1. Arrest upon suspicion, or upon information of others, that a misdemeanor has been committed is wholly unauthorized, and the arrest in such a case, being without process, makes the person who accomplishes the same guilty of false imprisonment, which is either a high-grade misdemeanor or a felony, depending upon the use or nonuse of violence in effecting the arrest, under the provisions of the above section.In re Dillon, Cal. App., 186 Pac. 170. 2. Every confinement of person is an imprisonment, whether it be in common prison, or in private house, or in the stocks, or even by detaining one in the public streets.-Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250, 251.

prove imprisonment; but, this being done, law presumes it unlawful, and burden is cast upon defendant of justifying it by proving that it was lawful.-People V. Wheeler, 73 Cal. 252, 14 Pac. 796; People v. McGrew, 77 Cal. 570, 20 Pac. 92, cited 79 Cal. 32. See Rich v. McInerny, 103 Ala. 345, 49 Am. St. Rep. 32, 15 So. 668.

6.

V.

Proof-Burden of, that violation of personal liberty is lawful rests upon defendant, it being only necessary for prosecution to show imprisonment.-People McGrew, 77 Cal. 570, 20 Pac. 92; Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250, 251; Mitchell v. State, 12 Ark. 50, 54 Am. Dec. 253, 254; Kirbie v. State, 5 Tex. App. 60, 63. 7. What constitutes false imprisonmentAs to generally.-Where defendant and associates took prosecuting witness from his cabin on unoccupied public ground, seized him, tied him, and carried him away, defendant having no right to such premises, he is guilty of false imprisonment.-People v. Wheeler, 73 Cal. 252, 256, 14 Pac. 796. Where accused went aboard schooner, and by threats and force removed two sailors from vessel, and conveyed them to island, where they were detained for several days, such persons were guilty of false imprisonment.-Ex parte Keil, 85 Cal. 309, 312, 24 Pac. 742.

8.

9. Same-Person assisting officer in arrest and imprisonment under void warrant is guilty of false imprisonment.-Mitchell v. State, 12 Ark. 50, 54 Am. Dec. 253, 258.

10. Same-Volunteer in arresting another is held to knowledge of his right to interfere, and if protection is to be afforded by warrant in hands of another, and he interfered, he did so at his peril.-Kirbie v. State, 5 Tex. App. 60, 63.

1.

As to what constitutes an assault, see People v. McMakin, 8 Cal. 547, 548; People v. Yslas, 27 Cal. 630. Ind. Cutter v. State, 59 Ind. 300. Miss. Smith v. State, 39 Miss. 524. N. C. State v. Davis, 1 Ired. L. 125, 35 Am. Dec. 735; State v. Millaps, 82 N. C. 549. Tex. Warren v. State, 33 Tex. 517; Johnston v. State, 43 Tex. 576.

As to what constitutes assault, see notes, 35 Am. Dec. 737; 11 Am. St. Rep. 835.

2. In order to be guilty of an assault, there must be an unlawful attempt, coupled with present ability, to accomplish the act intended. To warrant a conviction for an assault, the defendant must have had the intent to strike, the ability to do so, and must have made the attempt to strike.People v. Lee Kong, 95 Cal. 666, 29 Am. St. Rep. 165, 17 L. R. A. 626, 30 Pac. 800. See People v. Dodel, 77 Cal. 293, 19 Pac. 484; People v. Gardner, 98 Cal. 127, 129, 32 Pac. 880.

3. "Battery" not included in "assault” although it includes assault. When the assault culminates in a battery, the offense is then an assault and battery, and the prosecution should be commenced for that grade of offense.-People v. Helbing, 61 Cal. 620; Harris v. State, 15 Okla, 369, 177 Pac. 122. See Parks v. State, 14 Okla. 413, 171 Pac. 429.

4. Construed-Assault at common law and assault under statute are substantially the same.-People v. Yslas, 27 Cal. 631, 633; People v. Lee Kong, 95 Cal. 666, 668, 29 Am. St. Rep. 165, 17 L. R. A. 626, 30 Pac. 800; People v. Wells, 145 Cal. 138, 140, 78 Pac. 470.

5. Same-Assault does not include battery. People v. Helbing, 61 Cal. 620, 622.

6. Same-Assault is misdemeanor, it being punishable by fine, or by imprisonment in county jail.-People v. Helbing, 61 Cal. 620, 622.

7. Same "Violent injury," mentioned in above section, is not synonymous with "bodily harm," but includes any wrongful act committed by means of physical force against the person of another, even although only the feelings of such person are injured by the act. The term "violence," as used here, is synonymous with "physical force," and in relation to assaults the two terms are used interchangeably.-People v. Bradbury, 151 Cal. 675, 91 Pac. 497. See

State v. Wells, 31 Conn. 212; State v. Daly, 16 Ore. 240, 241, 18 Pac. 357.

8. Appeal-Supreme court has no jurisdiction of appeal from conviction for simple assault under indictment for assault with deadly weapon, conviction amounting only to misdemeanor.-People v. Apgar, 35 Cal. 389, 390.

9. Burden of proof-As to generally.— Burden of proof is on prosecution to establish offense by prima facie case.-People v. Rodrigo, 69 Cal. 601, 604, 8 Am. Cr. Rep. 53, 11 Pac. 481.

10. Same As to evidence of ancient assaults being inadmissible, see Herman V. State, 75 Miss. 340, 22 So. 873.

11. Same As to evidence of contemporaneous assaults being admissible, see McCray v. State, 38 Tex. Cr. Rep. 609, 44 S. W. 170.

12. Same-As to evidence of other crimes to prove defendant's connection with assault, see note, 62 L. R. A. 193, 278.

13. Distinction -Between assault committed with deadly weapon, and simple assault and battery; the former amounts to felony, whereas the other is merely misdemeanor.-People v. Munn, 65 Cal. 211, 212, 6 Am. Cr. Rep. 431, 3 Pac. 651.

14. Elements-Ability, present.-To constitute an assault, there must be present ability to inflict injury.-People V. Lee Kong, 95 Cal. 666, 668, 29 Am. St. Rep. 165, 17 L. R. A. 626, 30 Pac. 800; People v. Dodel, 77 Cal. 293, 294, 19 Pac. 484; People v. Leong Yune Gun, 77 Cal. 636, 20 Pac. 27. See, also, People v. Yslas, 27 Cal. 630, 634.

15. Where prosecuting witness was shot in head with a pistol, whoever did shooting will be considered to have had present ability to do the act.-People v. Leong Yune Gun, 77 Cal. 636, 20 Pac. 27.

16.

Same-Attempt - As to generally.— Unlawful attempt on part of accused is necessary constitutent of crime of assault. -People v. Devine, 59 Cal. 630; People v. Dodel, 77 Cal. 293, 294, 19 Pac. 484; People v. Lee Kong, 95 Cal. 666, 668, 29 Am. St. Rep. 165, 17 L. R. A. 626, 30 Pac. 800. See. also, People v. Yslas, 27 Cal. 630, 634.

17. Same-Same-Must be apparent, but not necessarily apparent, to person against whom assault is made, it being no defense that attempt is made on unconscious person. -People v. Pape, 66 Cal. 366, 367, 5 Pac. 621.

as

18. Same Consent. Assault implies force by assailant, resistance by one saulted, and that one is not, in legal contemplation, injured by consensual act.People v. Vann, 129 Cal. 118, 119, 61 Pac. 776, following People v. Gordon, 70 Cal. 467, 11 Pac. 762.

As to assault where parties consented, see note, 20 Am. Rep. 330.

19. Same-Intention to commit act is necessary, to constitute offense.-People v.

McMakin, 8 Cal. 547, 548; People v. Dodel, 77 Cal. 293, 294, 19 Pac. 484. See, also, People v. Yslas, 27 Cal. 630, 634.

As to necessity of intent in assault, see notes, 26 Am. Rep. 83; 14 L. R. A. 226.

20. Must be to commit a present and not a future injury upon different occasion.People v. McMakin, 8 Cal. 547, 548.

21. Intent that injury shall follow immediately on act which is attempted is not necessary where accused has present ability to do the act.-People v. Pape, 66 Cal. 366, 367, 5 Pac. 621.

22. Same-Same-Evidence of intention. -Drawing of a weapon is generally evidence of intention to use it, and where accused declares his intention to use it, though he does not point it directly at other, jury is warranted in finding that such was his intention.-People V. McMakin, 8 Cal. 547, 548.

23. Same-Same-Presumption of intention.-Pointing loaded pistol at person, near his face, raises the presumption that unlawful act is done with unlawful intent.People v. Wells, 145 Cal. 138, 140, 78 Pac. 470.

24. Justification-Or excusable assault.If assault is justifiable or excusable, no crime has been committed.-People v. Rodrigo, 69 Cal. 601, 604, 11 Pac. 481; Commonwealth v. McKie, 67 Mass. (1 Gray) 61, 61 Am. Dec. 410, 411.

As to assault in recapture of property, see notes, 82 Am. Dec. 674; 14 L. R. A. 317. As to defense of property as justification for assault, see note, 2 L. R. A. 623.

As to intoxication as excuse for assault, see, ante, § 22 and note; also, 36 L. R. A. 465-484, particularly p. 477.

As to justification for assault, see notes, 61 Am. Dec. 414; 15 L. R. A. 853, 854.

reasonable ground to apprehend design to commit felony or to do some great bodily injury, and where circumstances are sufficient to excite the fears of a reasonable man.-People v. Dollor, 89 Cal. 513, 26 Pac.

1086.

27. One can not assault another in selfdefense. Any act done in self-defense can not be assault, and hence failure to instruct in regard to self-defense is not error.-People v. Lynch, 101 Cal. 229, 230, 35 Pac. 860.

As to self-defense as justifying assault, see notes, 20 Am. Rep. 647; 6 L. R. A. 424. 28. Same-Previous threat, alone, and unaccompanied by any immediate demonstration of force at time of encounter, will not justify or excuse an assault.-People v. Iams, 57 Cal. 115, 127.

29. So when party assailed had made no attempt or demonstration of a hostile or at least equivocal character.-People v. Wright, 45 Cal. 260, 261.

30. Mistake as to person-Will not prevent.-Pointing pistol at person within very short distance of him and then lowering it constitutes assault.-People v. Wells, 145 Cal. 138, 140, 78 Pac. 470.

31. Solicitation merely-Does not constitute an assault.-People v. Wilson, 119 Cal. 384, 386, 51 Pac. 639.

As to solicitation to crime punishable as assault, see, 25 L. R. A. 434.

32. Threats-To constitute assault, there must be something more than mere menace; there must be violence begun to be executed. But where there is clear intent to commit violence, accompanied by acts which, if not interrupted, will be followed by personal injury, violence is commenced, and assault is complete. Thus defendant is guilty of assault if he advanced on the prosecutrix in such manner as to threaten immediate violence, notwithstanding the fact that she succeeded in making her escape without injury.-People v. Yslas, 27 Cal. 630, 633.

As to threats constituting assault, see note, 39 Am. Rep. 712.

33. Same-Drawing pistol, with threat to use it unless person addressed should leave land on which he was, constitutes an assault, though pistol is not pointed at such person.-People v. McMakin, 8 Cal. 547.

PUNISHMENT FOR ASSAULT.

1. Both fine and imprisonment.

2. 3. Sentence of fine to be worked out by im

prisonment.

4, 5. Sentence to both fine and imprisonment.

As to cruel and unusual punishment for assault and battery, see note, 35 L. R. A. 561-579, and particularly p. 569; L. R. A. 1915C, 558.

1. Punishment-Both fine and imprisonment can not be imposed, under this section