ASSAULT. STATE v. DAVIS. [1 Ired. (L.) 125; 35 Am. Dec. 735.] Three men had a quarrel one fine afternoon. Davis was one of them and Roberts was another; as to the third, history is silent. The quarrel seemed over when Davis, who was leading his horse by the bridle, said to a bystander, "Hold my horse and I'll whip the rascal," and advanced with his arms extended to where Roberts stood. Davis, however, got the worst of it, for before he could grasp Roberts, the latter, with a rifle he held in his hands, knocked him down. Nevertheless Davis was held to have committed an assault. "An assault," said the judge, " is an intentional attempt by violence to do an injury to the person of another. And it must also amount to an attempt, for a purpose to commit violence, however fully indicated, if not accompanied by an effort to carry it into immediate execution, falls short of an actual assault. Therefore, it is that notwithstanding many ancient opinions to the contrary, it is now settled that no words can, of themselves, amount to an assault. And, therefore, also, it is said not to be an assault, if a man strike at another at such a distance that he cannot reach him or put him in fear. The distance. is here explanatory of the apparent attempt to strike, and shows that in truth that it is not an attempt but only a menace - to do hurt to his person. It is difficult in practice to draw the precise line which separates violence menaced from violence begun to be executed, for until the execution of it is begun, there can be no assault. We think, however, that where an unequivocal purpose of violence is accompanied by any act, which if not stopped or diverted, will be followed by personal injury, the execution of the purpose is then begun, the battery is attempted. Thus riding after a person so as to compel him to run into a garden for shelter to avoid being beaten, has been adjudged to be an assault.' So in a late case before a very eminent English judge, it was held that where the defendant was advancing in a threatening attitude with intent to strike the plaintiff, if he had not been stopped, although when stopped he was not near enough to strike, an assault was committed. In the case under consideration, the intent of the defendant to seize the prosecutor's person was not in question." An assault is an offer or attempt by force or gesture to commit violence on the person of another. A battery is a touching or laying hold of another person or his clothes, in an angry, rude or hostile manner. Thus if a man strikes at another with his cane or his fist, or throws a bottle at him, if he miss it is an assault; if he hit, it is a battery. Harris C. L. 151. There may be an assault without personal injury, as any attempt at violence is an assault, though the party fail to commit the voilence intended. An attack apparently likely to hurt is as much an assault as if it had actually caused harm, as shooting at another or striking at him with a cane, stick, or fist, though the shot or blow miss; or raising a stick near enough with intent to strike, though 1 Morton v. Shopple, 3 C. & P. 371. the party assailed retreats. That the attack was frustrated or intercepted makes no difference, as where one advances in a threatening manner, but is stopped before he reaches his object. Desty C. L. 130. It is not necessary that the assailant should be at any time within striking distance. If he is advancing with intent to strike his adversary, and comes sufficiently near to induce a man of ordinary firmness to believe, in view of all the circumstances, that he will receive a blow unless he resist or retreat, the assault is complete. People v. Yslas, 27 Cal. 634. So, for a man to ride his horse so near another as to endanger his person and create a belief in his mind that he intends to ride over him, is an assault. State v. Sims, 3 Strobh. 137. It has been held in some cases, and has been strongly maintained by a very eminent authority on criminal law (2 Green Cr. L. Rep. 275, note to Com. v. White), that to render an act an indictable assault, the assailant must have the ability to commit a battery in the manner of his menace. Therefore, it is said, to point an unloaded gun or pistol at a person within shooting distance, is not an assault. This is expressly laid down in Texas in several cases. See McKay v. State, 44 Tex. 43. On the other hand, in Massachusetts, a contrary view is taken. Sullivan and Harrington in that State, with pick and shovel, were mending the highway along which the defendant drove in a wagon. "Drive in the middle of the road, can't ye?" shouted Sullivan, to which order the defendant politely replied with an oath. "What do you mean?" said Sullivan. "I mean this," answered the defendant, taking a double barreled shot-gun out of his wagon and pointing it at the road menders. "I have got something here that will pick the eyes out of you." The road menders wilted and the defendant went on his way without further discussion. The defendant was afterwards indicted for assault, and pleaded that the gun was not loaded at the time. But the judges said this made no difference, for that if the road menders were put in fear by the gun being pointed at them, and they had reasonable cause for their fear, this was enough whether the gun was loaded or unloaded-and he was found guilty. Com. v. White, 110 Mass. 407. These very opposite decisions go to indicate that in Texas, to point a fire arm at a man is considered a kind of a joke, while in Massachusetts it is a very serious thing. I confess that I like the Massachusetts rule the best. If it is an assault, as all agree it is, to flourish a cane in a man's face, or to shake your fist at him, I think it ought to be so, also, to shove an unloaded pistol under your nose. How are you to know he is not going to pound you over the head with it? Even if he is too far away for this and only within shooting range, yet if I think the pistol is loaded is there not that "putting in fear," which goes to constitute an assault? I am for the Massachusetts rule, for the still better reason also that unloaded guns so often go off. ASSAULT AND BATTERY. STATE v. BAKER. [65 N. C. 332.] Baker and Barber were talking politics in a country store when Baker said to Barber: "I once thought we were friends; but I understand you have said things about me, and you have got to take it back." Barber replied that he was not that kind of a man, and took nothing back. Then Baker put his open hand on Barber's breast and pushed him a few steps, when he fell over a flour barrel. Being convicted of assault and battery, Baker appealed, and his counsel argued as follows: "It was at a country store where politeness is not a commodity." 66 Suppose this to be so," replied the Supreme Court, "and make full allowance for country manners, still there may be rudeness at a country store; and if this was not, then rudeness can not be." "The hand was open," persisted the counsel. "So it would have been if he had slapped his face," said the court. |