this is an arrest; for he is in custody of the officer. 1 Salk. 79. 2 Haw. c. 19. § 1. Cas. Temp. Hardw. 301. missal. It hath been holden that if a constable, after he hath arrested Retaking after the party by force of a warrant, suffer him to go at large upon his arrest, after promise to come again and find sureties, he cannot afterwards voluntary disarrest him by force of the same warrant: However, if the party return, and put himself again under the custody of the constable, it seems it may be probably argued that the constable may lawfully detain him, and bring him before the justice in pursuance of such warrant; but in this the law doth not seem to be clearly settled. 2 Haw. c. 13. § 9. But if the party arrested do escape, the officer upon fresh suit After escape. may take him again and again, so often as he escapeth, although he were out of view, or that he shall fly into another town or county. Dalt. c. 169. V. What is to be done after the Arrest. When a private person hath arrested a felon, or one suspected By a private of felony, he may detain him in custody, till he can reasonably person, dismiss himself of him; but with as much speed as conveniently he can, he may do any of these three things: (1) He may carry him to the common gaol; but that is now rarely done. 1 Hale, 589. 2 Hale, 77. (2) He may deliver him to the constable, who may either carry him to gaol, or to a justice of the peace. 1 Hale, 589. Id. (3) He may carry him immediately to a justice of the peace. If the constable or his watch hath arrested affrayers, or persons By a watchman. drinking in an alehouse disorderly at an unseasonable time of night, he may put the persons in the stocks, or in a prison, if there be one in the vill, till the heat of their passion or intemperance is over, though he deliver them afterwards, or till he can bring them before a justice. 2 Hale, 95. If the arrest be by virtue of a warrant, when the officer hath By an officer made the arrest, he is forthwith to bring the party, according to by warrant. the direction of the warrant. If it be to bring the party before the justice who granted the warrant specially, then the officer is bound to bring him before the same justice; but if the warrant be to bring him before any justice of the county, then it is in the election of the officer to bring him before what justice he thinks fit, and not in the election of the prisoner. Foster's Case, 5 Rep. 59. b. 1 Hale, 582. 2 Hale, 112. But if the time be unseasonable, as in or near the night, whereby he cannot attend the justice, or if there be danger of a present rescue, or if the party be sick, he may secure him in the stocks, or in a house, till the next day, or such time as it may be reasonable to bring him. 2 Hale, 120. And when he hath brought him to the justice, yet he is in law still in his custody till the justice discharge, or bail, or commit him. Id. But it is said, the constable is not obliged to return the warrant Returning the itself, but may keep it for his own justification, in case he should warrant. be questioned for what he had done, but only to return what he has done upon it. 2 Ld. Raym. 1196. 1 East's P. C. 319. 24 G. 2. c. 44. Constable in demnified, on giving copy of warrant. 23 H. 6. c. 9. Fee for arrest. And this seems to be implied in the statute of the 24 G. 2. c. 44. § 6. which enacts, That no action shall be brought against any constable or other officer, or person acting by his order, and in his aid, for any thing done in obedience to any warrant of a justice of the peace, under his hand and seal, until demand hath been made, or left at the usual place of his abode, by the party intending to bring such action, or by his attorney, in writing, signed by the party demanding the same, of the perusal and copy of such warrant, and the same hath been refused or neglected for six days after such demand; and if, after compliance therewith, any such action shall be brought, without making the justice or justices who signed or sealed the warrant defendant or defendants, on producing and proving such warrant at the trial, the jury shall give their verdict for the defendant.-And it is certain that the constable cannot grant a perusal or copy of the warrant, unless he hath it in his custody. By an ancient statute, 23 Hen. 6. c. 9., no sheriff shall take for any arrest but 20d. and the bailiff which maketh the arrest 4d. on pain of 401.; half to the king, and half to him that will sue in sessions (or the courts above), and treble damages to the party injured and see Dew v. Parsons, E. 1819, 2 B. & A. 562. Upon which statute perhaps may be founded the custom in many places, of giving 4d. to the constable with the warrant, for his trouble in executing the same; which indeed at that time might be a reasonable satisfaction; for 4d. then was worth more than ten times the value of 4d. now. Which decrease in the value of money, in this and many other cases, depending upon ancient statutes, may seem to require some consideration. Arson. See Burning. What is an assault. IV. How punished. [43 Eliz. c. 6.—22 & 23 C. 2. c.9.—58 G. 3. C. 30.— 7 & 8 G. 4. c. 29.-11 & 12 W. 3. c. 7.-9 G. 4. c. 31. I. Assault, what. AN assault, assultus, from the French assayler, is an attempt or offer, with force and violence, to do a corporal hurt to another; whether from malice or wantonness; as by striking at him with or without a weapon, though the party striking misses his aim so, drawing a sword, throwing a bottle or glass, with intent to wound or strike, presenting a gun at a person within the distance to which the gun will carry, or pointing a pitchfork at a person standing within reach; holding up one's fist at him, in a threatening or insulting manner; or with such other circumstances as denote at the time an intention (coupled with a present ability) of using actual violence against his person, will amount to an assault. ] Haw. c. 62. § 1, 2. Bull. N. P. 15. 1 Selw. N. P. 27. 1 East's P. C. 496. 1 Russ. 862. 3 Blac. Com. 120. So there may be an assault by encouraging a dog to bite Assault by inanother person; by riding over a person with a horse; or by termediate wilfully and violently driving a cart, &c. against the carriage of means. another person, and thereby causing bodily injury to the person travelling in it. 1 Russ. 605. So, where a person pushed a drunken man against another, and thereby hurt him; but aliter, if he only intended to do a right act, as to assist the drunken man. 1 Russ. ib. So, it was held that exposing a servant to the inclemency of the weather was an act in the nature of an assault. 2 Campb. 650. cit. 1 Russ. ib. Per Lawrence J., Pushing a drunken man. Exposing a servant in incle ment weather. Battery in From hence it clearly follows that one charged with an assault and battery may be found guilty of the assault, and yet acquitted cludes assault. of the battery: but every battery includes an assault: therefore on an indictment of assault and battery, in which the assault is ill laid, if the defendant be found guilty of the battery, it is sufficient. 1 Haw. c. 62. § 1. If a master takes indecent liberties with a female scholar, with- Liberties taken out her consent, though she does not resist, he is liable to be with females. punished as for an assault. R. M. T. 1807. A master took very indecent liberties with a female scholar of 13, by putting her hand into his breeches, pulling up her petticoats, and putting his private parts to hers: she did not resist, but it was against her will. The jury found him guilty of an assault with intent to commit a rape, and also of a common assault: on case, the judges thought the finding as to the latter clearly right. R. v. Nichol, Sum. Ass. 1807. cor. Graham B. C. C. R. 130. M. T. 1807. Rex v. Dawson, 3 Stark. C. N. P. 62. York Sum. Ass. 1821. Indictment for assaulting a female child with intent to abuse and carnally to know her: the jury found that the prisoner assaulted the child with intent to abuse her, but negatived the intention charged carnally to know her. Holroyd J. held that the averment of intention was divisible, and sentenced the prisoner to 12 months' imprisoment: and see R. v. Evans, 3. Stark. C. N.P. 35. So, where a female came to consult a quack doctor, and he made her strip naked and pulled off all her clothes, which was done against her will; the jury finding that he did not really think it would assist him towards effecting her cure, it was held to constitute an assault, and that a conviction on a count for a common assault was good. R. v. Rosinski, R. & M. 19. Stripping a female by a quack doctor. Unlawful imprisonment, An unlawful imprisonment is also an assault, 1 Russ. 606.; and it will be an unlawful imprisonment whenever there is a detention of the person without authority; and also, though the warrant or process is regular, yet if the arrest be made at an unlawful time, as on a Sunday, or in a place privileged from arrests. 1 Russ. ib. But where two persons were fighting, and A. came up and took hold of one of them by the collar in order to separate the combatants, it was held to be no assault. 1 Russ. 607. So, to lay one's hand gently on another, against whom an officer has a warrant, person to be Separation of combatants. Pointing out a arrested. Horse running away. Caused by a third person. Words cannot amount to an assault, Battery, what, Touching. Spitting on. When justifiable. and to tell him "this is the man he wants," is said to be no battery. See authority cited, 1 Russ. 607. So, it is no battery, if a horse by a sudden fright runs away with his rider, and runs against a man. 1 Russ. ib. But aliter, if the running away of the horse were occasioned by a third person whipping him, for such third person would be a trespasser. 1 Russ. ib. n. (w.) It seems agreed at this day, that no words whatsoever can amount to an assault, though perhaps they may in some cases serve to explain a doubtful action; as, if A. lays his hand upon his sword, and says, "If it were not assize time, I would not take such language from you." These words would prevent the action from being construed to be an assault, because they shew he had no intent to do him any corporal hurt at that time, and a man's intention must operate with his act in constituting an assault. 1 Haw.c.62. § 1. Bull. N. P. 15. 1 Mod. 3. II. Battery, what. Battery (from the Saxon batte, a club, or beaten, to beat, from whence cometh also the word battle) seemeth to be, when any injury whatsoever, be it never so small, is actually done to the person of a man in an angry, or revengeful, or rude, or insolent manner, as by spitting in his face, or any way touching him in anger, or violently jostling him out of the way, and the like. 1 Haw. c. 62. § 2. : The least touching of another's person wilfully, or in anger, is a battery for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slighest manner. 3 Blac. Com. 120. The indictment was for a battery upon Dr. R. The evidence was that the defendant spit in his face. Holt C. J. It is a battery. 6 Mod. 170. Reg. v. Catesworth. III. In what Cases they may be justified. If an officer, having a lawful warrant against one who will not suffer himself to be arrested, but resists and endeavours to rescue himself, beat or wound him in the attempt to take him, he may justify it. So, if a parent in a reasonable and proper manner chastise his child, or a master his servant, being actually in his service at the time, or a schoolmaster his scholar (a), or a gaoler his prisoner, or even a husband his wife; or if a man force a sword from one who offers to kill another; or if a man gently lay his hands on another, and thereby stay him from inciting a dog against a third person; or if I beat one (without wounding him, or throwing at him a dangerous weapon) who wrongfully endeavours with violence to dispossess me of my land or goods, or of the goods of another delivered to me to be kept for him, and will not desist upon my laying my hands gently on him and disturbing him; or if a man beat, wound, or maim one who makes an assault upon his person, or that of his wife, parent, child, or master; or if a man fight with, or beat one who attempts to kill any stranger; or (a) Pult. 6. s. 16. if a man even threaten to kill one who puts him in fear of death, in such a place where he cannot safely fly from him; or if one imprison those whom he sees fighting, till the heat is over; in all these cases it seems the party may justify the assault and battery. 1 Haw. c. 60. § 23. 1 Bac. Abr. tit. Assau. & Batt. 244. 1 Ld. Raym. 231. Bull. N. P. 18. 3 Blac. Com. 121. In Keit's case, 3 Salk. 47., it was adjudged per Holt C. J. that a Master may master may justify beating his apprentice, servant, scholar, &c. if correct his apthe beating is in nature of correction only, and with a proper instru- prentice, schoment (a); otherwise, immoderate correction is a good reply to a justification of the action. lar, &c. A wife may justify an assault in defence of her husband; so Servant may also a servant in defence of his master, but not a master in defence justify in deof his servant, because he may have an action per quod servitium fence of his amisit. Leeward v. Basilee, I Ld. Raym. 62. 1 Salk. 407. Bull. N. P. 18. master. Lord Mansfield, however, held that a master would be justified Master in dein interposing where his servant was assaulted, as well as a servant fence of servant. for his master, saying that it rested on the relation between master and servant. Tickell v. Read, Lofft. 215. cit. 1 Russ. 608. It has been holden that a military officer may, as such, justify Military officer. a battery, and even a mayhem, for disobedience of orders. Bull. N. P. 19. cit. 1 Russ. 609. It is said that a servant may not justify beating another in defence of his master's son, though he were commanded to do so by the master, because he is not a servant to the son; and that for the like reason a tenant may not beat another in defence of his landlord. 1 Haw. c. 16. § 24. 1 Salk. 407. Servant cannot justify in defence of mas ter's son, Semb. If A. enters into the ground of B. unlawfully, B. must request In defence of him to depart before he can lay hands on him to turn him out; for possession. every impositio manuum is an assault and battery, which cannot be justified upon the account of breaking the close in law without Mere trespass. a request. But if the entry be forcible, as by breaking down a gate, or the like, a request to depart is unnecessary; for acts of Act of violence. violence on the part of the trespasser may be instantly opposed by such acts of violence on the part of the owner as may be necessary for the immediate defence of his possession. 2 Salk. 641. 1 Sel. N. P. 33. Green v. Goddard. If there be an attempt made to disseise a man of his land, or dispossess him of his goods, or to disturb him of his highway, or to turn an ancient watercouse from his mill, he may lawfully use force to resist it. Pult. 42. § 33. Likewise, if a person comes into my house, and will not go out, I may justify laying hold of him, and turning him out. But in general, unless there be violence in the trespass, a party should not, either in defence of his person, or his real or personal property, begin by striking the trespasser, but should request him to depart or desist, and if that is refused, should gently lay his hands upon him in the first instance, and not proceed with greater force than is made necessary by resistance. Weaver v. Bush, 8 T. R. 78. 1 Russ. 609. Thus, where a churchwarden justifies taking off the hat of a person who wore it in church at the time of divine service, the plea stated, that he first requested the plaintiff (a) e. g. A rod. Pull. 6. b. 16. Generally there ought to be a previous request to a trespasser to desist. |