whip and shouted at old man Grayson, saying: "If you were not an old man, I would knock you down," this was held not to constitute an assault. "The law," said Daniel, J., "makes allowance to some extent, for the angry passions and infirmities of man.

It seems to us that the words used by the defendant contemporaneously with the act of raising his whip, were to be taken into consideration, as tending to qualify that act and show that he had no intention to strike." State v. Crow, 1 Ired. (L.) 375.

But the qualifying words must be unequivocal. Mr. Samuel Hampton's case illustrates the extent of the rule very well. As John Lindsay was going down stairs with the crowd which was leaving the court-house at recess, Samuel who was in front of him and very near, turned round and with his hand clenched remarked to John: "I have a great mind to hit you." It was held that this was an assault. "This," said the court, "was an offer of violence and constituted an assault, unless there was something accompanying the act which qualified it and indicated that there was no purpose of violence. The only accompaniment of the act was the declaration, 'I have a good mind to strike you.' If the declaration had been, I intend to strike you,' that would not have qualified the act favorably for the defendant. Nor if he had said, ' I have a mind to strike you.' It is suggested, however, that the expression 'I have a great mind to strike,' is used to express indecision; as if one should say, 'I had a great mind to do so and so, but I did not,' in. dicating that he was only debating in his own mind as to whether he would or would not. If that were the common acceptance of the expression, it would not avail the defendant, because when violence is apparently offered, the qualifying declaration must not be equivocal, but unequivocal, so as to leave the person attached no good reason to suppose the violence will be executed." State v. Hampton, 63 N. C. 13.

ASSAULT- UNLAWFUL CONDITION.

STATE v. MORGAN.

[3 Ired. (L.) 186; 38 Am. Dec. 714.]

A constable went to Morgan's house and levied on a gun which was there, but, at his wife's request, agreed not to take it away till Morgan came home. When Morgan arrived he was very much put out, and demanded of the constable that he should give the gun up. The constable showed his authority and refused. Then Morgan seized an ax and holding it over the constable's head, said: "Give up the gun or I'll split you down." In this state of the case the constable weakened and agreed to a compromise, and Morgan got back his gun.

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It was held that in raising the ax Morgan had been guilty of an assault, and that the words he used at the time did not alter the case. "To every purpose," said the court, both in fact and in law, the attack on the prosecutor was begun and in the pause which intervened before its consummation, most happily for both parties, an arrangement was made which prevented the probably fatal result. But this pause— though intentional and announced when the attack

began - does not prevent that attack from being an offer or attempt to strike. If a ruffian were to level his rifle at a traveler, and announce to him that he might have fifteen minutes to make his peace with his God, and the unfortunate man should save his life by prayers, by remonstrance, by money, or by any other means, before the expiration of that time, could it be pretended that there had been no attempt nor offer to hurt him, because the intent was not to kill him instantaneously, and therefore did not accompany the act? Will it be doubted if a bully should present his pistol at a citizen and order him, under pain of death, not to walk on the same side of the street with him, whether there was an offer of violence, because the purpose to kill was not absolute, but conditional merely? Whenever the act is done in part execution of a purpose of violence whether that purpose be absolute or provisional makes no difference as respects the question, whether the act be an assault. In both cases the assailant equally violates the public peace. In both he breaks down the barrier which the law has erected for the security of the citizen. In the former he sets up none in its place. In the latter he substitutes for it the protection of his grace and favor."

This case shows that an offer of violence is an assault, even if it be accompanied with a declaration that violence will be forborne upon a condition which the actor has no right to impose. For example, if a man says to another, at the same time making a motion to strike, "I will strike you if you do not pull off your hat," this is an assault, because he had no right to require the hat to be pulled off. State v. Church, 63 N. C. 15. In this case, which was church all round, the defendant, Church, was sitting outside a church before morning service, when a worshiper came up the steps. Church rose and drawing a pistol, remarked to him: "We have no

use for you in this company, you shall not come here; go back." The worshiper concluded that he could do without divine service that morning under the circumstances, and retired. Mr. Church was held rightly convicted of an assault.

ASSAULT WITH INTENT TO MURDER.

TATUM v. STATE.

[59 Ga. 638.]

Let the judge tell the story of this crime in his own words:

"Two brothers set out from Haralson County, Georgia, to find a better country. They had with them two satchels, a pistol, a mule, and a watch. They intended to go to Cherokee County. As they journeyed in that direction, a stranger who traveled on foot and carried a stick, a pistol, and a satchel, overtook them and prevailed upon them to change their destination. He was going to Tennessee, and wanted them to go with him. Satisfied with the inducements which he mentioned, they consented, and for four days the party went on amicably together. The mule served first one and then another, the stranger taking his turn on the saddle with the rest. On the night of the fourth day they lodged in an uninhabited house. Their bed was an old door-shutter placed in front of the fire. Sometime before day the next morning the brothers arose