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intention, coupled with a present ability (u) to do such injury, whether that injury be actually done or not. Thus, lifting up a stick or fist in a threatening attitude, so near to the party threatened that a blow might take effect, although the fist or the stick is not brought in actual contact with his person; presenting a loaded fire-arm at a person within the distance to which it will carry, though without firing it (x), or even unloaded, if having the appearance to him of being loaded, and so near that if it was loaded and went off it might produce injury (y), striking at, or throwing any substance at another with intent to strike, though the attempt fail, are assaults in law; but mere words, whatever violence they may threaten, never amount to an assault (z). These assaults do not include a battery, which consists in some actual and unwarranted force applied to the person; but every battery, however small, includes an assault; e. g., spitting in a man's face, cutting off his hair in derision (a), forcibly stripping him of his clothes (b), or even touching him, if done with the purpose to insult him (c). And the assault and battery will be equally committed, whether by actually employing the hand, or by any other means, as giving cantharides (d), or placing an infant in a bag, hanging the bag on palings, and leaving it there (e). Setting a dog on another, or driving a cart wilfully against the carriage of another, by which bodily injury is done to those within it. So if a drunken man be wilfully pushed against the complainant (f); but never where the act is merely the result of accident, or an injury is done in an amicable contest (if lawful), as in wrestling (g).

(u) Selwyn's N. P. 10th ed. 25. See Stephens v. Myers, 4 C. & P. 349. Tindal, C. J., and Hawk. B. 2, Ch. 62, s. 1.

(a) The fact of firing a gun into a room of A.'s house with intent to shoot A., the prisoner supposing him to be in the room, will not support a charge of shooting at A. if he is shown not to be in the room, or within reach of the shot, Reg. v. Lovel, 2 M. & Rob. 39. (Gurney, B.)

(y) Dict. Parke, B., Reg. v. St. George, 9 C. & P. 493, quære see note (u); and Tindal, C. J., in Reg. v. James, C. & Kir. 530.

(z) Hawk. B. 2, c. 62, s. 1.

(a) Forde v. Skinner, 4 C. & P. 239, see C. & Kir. 160. How punished before the Conquest, see 3 Inst. 109.

(b) See Sunbolf v. Alford, 3 M. & W.

248.

(c) Quare, any imposition of hands on another against his will is an assault;

King and ux. v. Jebbert, Skinner, 387, cited 1 Saund. 14.

(d) Indictment that on, &c. at, &c. prisoner unlawfully assaulted M. A. W. and then and there unlawfully, knowingly, wickedly, and maliciously did administer to and cause to be administered to and taken by the said M. A. W. a large quantity, that is to say, two scruples of cantharides, the same then and there being a deleterious and destructive drug, with intent thereby to injure the health of said M. A. W., and the said M. A. W. in consequence became sick, sore, diseased and disordered in her body, insomuch that her life was despaired of, to great damage. Count for common assault. Held an assault by Arabin, Serjeant, and Law, Recorder. Reg. v. Edward Button, 8 C. & P. 660. (e) Reg. v. March, C. & Kir. 496. (f) Short v. Lovejoy, Bull. N. P. 16. (g) Com. Dig. Pleader (3 M. 18). See Bull. N. P. 16; Bac. Abr. tit. Assault

An assault may also be committed by exposing a servant of tender years to the inclemency of the weather (h), by taking indecent liberties with a female pupil of thirteen years of age, without her consent, though she may not offer actual resistance (i); and even by a medical practitioner who wantonly strips a female under false pretence that he cannot otherwise judge of her illness, even though she, under such impression, acquiesces (k). Being present at a prize fight in order to see it, is indictable as an assault (7).

Cases where even Battery is no Offence.]-There are many cases, however, in which a battery is no offence. Thus, whenever a man is first assaulted, he may lawfully strike with a violence not exceeding that which appears necessary for the defence of his person; though he cannot justify a battery manifestly excessive by setting up the first assault from his adversary (m). So he may remove a trespasser from his land, after requesting him to depart; and even without such request, where the party is proceeding to acts of destruction and violence, or is forcibly removing goods (n). The use of necessary force in executing legal process on the person, and for frustrating an attempt to escape, may also, at all times, be justified; but the force must be necessary and not wanton (o). And there are relationships which justify a battery in defence of another; thus, a husband may justify a battery in defence of a wife; a wife in defence of her husband; a parent in defence of his child; a child in defence of his parent; a master in defence of his servant; and a servant in defence of his master (p). But it has been said, that a servant cannot justify beating another in defence of his master's son, though he were commanded to do so by his master, because he is not a servant to the son; and that a tenant may not beat another in defence of his landlord (q).

A battery may also be justified when done in the way of domestic

and Battery, B.; 1 East, P. C. 268; but all struggles in anger, whether by wrestling, pushing, &c. are unlawful, so that death occasioned thereby, is manslaughter at least, Rey. v. Canniff, 9 C. & P. 359.

(h) R. v. Ridley, 2 Campb. 650, 653. See post, s. 10, of this chapter.

(i) R. v. Nicholl, R. & Ry. 130. (k) R. v. Rosinski, 1 Moo. C. C. 19; but not by "attempting to assault a girl by inducing and soliciting her to place herself in an indecent attitude," the defendant doing the like, R. v. Butler,

6 C. & P. 368.

(1) R. v. Perkins, 4 C. & P. 537, see R. v. Billingham, 2 C. & P. 234.

(m) Bul. N. P. 18. See Fish v. Scott, Peake, C. N. P. 135. Quære if an assault committed by A. after being first assaulted by B. is not an indictable offence by A. see Hinton v. Heather, pending in exchequer.

(n) Green v. Goddard, 2 Salk. 641.
(0) 2 Roll. Abr. 546 (A).
(p) Hawk. B. 1, c. 60, s. 23.
(g) Hawk. B. 1, c. 60, s. 24.

correction by a party having authority to employ it; as if a father correct his infant son; a schoolmaster his scholar; or a master his apprentice; provided the punishment be moderate, and the instrument of correction proper (r). And it has been holden, that an officer of the army may justify even a wounding, if done for disobedience of orders; and that a sentence of a council of war in his favour, on the petition of the soldier wounded, will conclusively entitle him to an acquittal (s). Semble, an imprisonment will not necessarily amount to battery?(t).

Legal Remedies for Assaults on one or more.]-It was formerly thought that a man could not be indicted for assaulting two persons in one charge (u); but Lord Mansfield disagreed from that case; the contrary is now understood to be the rule (x). Where the prosecutor complains of several assaults, he may include them in one indictment, inserting counts applicable to each; and may give evidence of all at the trial.

A party assaulted not only has his option, either to proceed civilly or to indict, but he may take both courses (y); although such a proceeding would probably influence both the damages and the sentence; or he may seek the summary remedy given by 9 G. IV. c. 31, s. 27: by which," where any person shall unlawfully assault or beat any other person, it is lawful for two justices of the peace, upon complaint of the party aggrieved, to hear and determine such offence; and the offender upon conviction thereof before them, shall forfeit and pay such fine as shall appear to them to be meet, not exceeding, together with costs (if ordered), 57.; which fine shall be paid to some one of the overseers of the poor, or to some other officer of the parish, township, or place in which the offence shall have been committed, to be by such overseer or officer paid over to the use of the general rate of the county, riding, or division, in which such parish, &c. shall be situated, whether the same shall or shall not contribute to such general rate; and the evidence of any inhabitant of the county, &c. shall be admitted in proof of the offence, notwithstanding such application of the fine incurred thereby; and if such fine as shall be awarded by the said justices, together with the costs (if ordered), shall not be paid either immediately

Hawk. B. 1, c. 60, s. 24. Lane v. Hegberg, Bul. N. P. 19. (t) See Wilson v. Lainson, 3 New C. 307; Briggs v. Bowgin, 1 New R. 355. (u) Stra. 890; 2 Ld. Raym. 1572; R. v. Clendon.

(x) R. v. Benfield et al. 2 Burr. 984,

see 3 T. R. 105, Buller, J.

(y) Jones v. Clay, 1 B. & P. 191, but cannot apply for criminal information without giving up right of action, R. v. Sparrow, 2 T. R. 198; 1 Ch. Cr. L. 855, 1st edit.

after the conviction, or within such period as the said justices shall at the time of the conviction appoint, it shall be lawful for them to commit the offender to the common gaol or house of correction, there to be imprisoned for any term not exceeding two calendar months, unless such fine or costs be sooner paid; but if the justices, upon the hearing of any such case of assault or battery, shall deem the offence not to be proved (2), or shall find the assault and battery to have been justified, or so trifling as not to merit any punishment, and shall accordingly dismiss the complaint, they shall forthwith (a) make out a certificate under their hands, stating the fact of such dismissal, and shall deliver such certificate to the party against whom the complaint was preferred" (b).

Certificate of Dismissal of Complaint, or Payment on Conviction, a Bar to further Proceedings.]-By s. 28, it is enacted, "That if any person, against whom any such complaint shall have been preferred for any common assault or battery, shall have obtained such certificate as aforesaid, or, having been convicted, shall have paid the whole amount adjudged to be paid under such conviction, or shall have suffered the imprisonment awarded for the non-payment thereof, in every such case he shall be released from all further or other proceedings, civil or criminal, for the same cause" (c).

Cases to which Summary Jurisdiction does not extend.]—But by s. 29 it is provided, "That in case the justices shall find the assault or battery complained of to have been accompanied by any attempt to commit felony, or shall be of opinion that the same is from any other circumstance a fit subject for a prosecution by indictment, they shall abstain from any adjudication thereupon, and shall deal with the case in all respects in the same manner as they would have done before the passing of this act; provided also that nothing herein contained shall authorise any justices of the peace to hear and determine any case of assault or battery in which any question shall arise as to the title to any lands, tenements, or hereditaments, or any interest therein, or

(z) Different from "not guilty," and see 12 Ad. & E. 675, Coleridge, J.

(a) Viz. at the time. The word must receive a reasonable construction. Two months after dismissing the complaint is not " forthwith," Reg. v. Robinson, 12 Ad. & E. 672, S. C.

(b) It should also state the grounds of the dismissal, in order that the party benefited might obtain protection in the

event of any after proceedings, Skuse v. Davis, 10 Ad. & E. 635; 7 D. P. C. 774; 2 P. & D. 550, S. C. See Anon. 1 B. & Adol. 382, next page.

(c) But it must be specially pleaded to any action for the assault, Harding v. King, 6 C. & P. 427, Gurney, B. Requisites of such a plea and of a replication to it, Reg. v. Robinson.

accruing therefrom, or as to any bankruptcy or insolvency, or any execution under the process of any court of justice" (d).

Indictment for a Common Assault.

That A. B. late of, &c. on, &c. with force and arms, at, &c. in and upon one C. D. in the peace of God and our said Lady the Queen, then and there being, did make an assault; and him the said C. D. then and there did beat (e), wound, and ill-treat, and other wrongs to the said C. D. then and there did, against the peace, &c.

Punishment.]-The punishment on conviction upon an indictment for a common assault and battery, is fine or imprisonment, or both; the former alone is the more usual. On such an indictment, the court have no power to order the defendant to be kept to hard labour, or subjected to personal correction.

2. Assaults aggravated by the Nature and Degree of Violence used.]-Assaults aggravated by the mere degree of violence do not differ in kind from common assaults, unless they amount to some felonious act, as stabbing, maiming, or wounding; nor can the court pass on the offender, in respect of such aggravation short of felony, the punishment of hard labour (except the assault is found on an indictment for felony, as now permitted by 7 W. IV. and 1 Vict. c. 85, s. 11, and s. 8. See post, Chap. VII. s. 15). In general, therefore, it is sufficient to indict in the common form already given, upon which the court may inquire into all the circumstances attendant on the offence, and take them into consideration in apportioning the punishment. But where the offence consists of great violence, includes an imprisonment, is accompanied by a challenge, or is part of a series of misconduct, it is usual to insert a count in the indictment, stating the aggravations. An instance will suffice in this place.

Indictment for an Assault and encouraging a Dog to bite.

That T. R. late of, &c. on, &c. with force and arms, at, &c. did make an assault on one A. B. and did then and there unlawfully incite and encourage a certain dog called a mastiff, belonging to the said T. R. to bite him the said A. B. by means

(d) On an application for a certiorari, to remove a conviction under this act, it appeared from the deposition that the defendant had laid hands on the complainant in an indecent manner; and it was contended, that if any assault was committed, the felonious intent excluded the jurisdiction of the justices; but the

king's bench refused to interfere, as the felonious intent did not necessarily appear, and of its existence the magistrates were the proper judges; Anonymous, 1 B. & Adol. 382.

(e) It is always usual to allege a battery; as the defendant may be convicted of an assault, if that only is proved.

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