is otherwise if, as a matter of law, the commission of the act as intended and attempted would not constitute a crime. Assaults with intent to murder, to rape, or to rob are attempts to commit such crimes, and therefore what has been said on this point under the head of attempts applies to such assaults.74

211. Lawful Force-Justification.

To constitute an assault and battery, the force threatened or applied must be unlawful. Public authority is a complete justification, provided it is not exceeded. Thus, an officer or a private individual is not guilty of an assault and battery in making a lawful arrest in a lawful manner, or in detaining a person who is lawfully in his custody, or in suppressing a riot or affray or preventing a felony.75 He is guilty, however, if an arrest is made, or a person detained, without lawful authority, or if excessive force is employed.76

74 Ante, §§ 127-129.

75 Post, §§ 268-271; Com. v. Presby, 14 Gray (Mass.) 65; People v. Adler, 3 Park Cr. R. (N. Y.) 249; Patterson v. State, 91 Ala. 58; Spicer v. People, 11 Ill. App. 294; State v. Pugh, 101 N. C. 737. 9 Am. St. Rep. 44; State v. Belk, 76 N. C. 10; Mitchell v. State, 12 Ark. 50, 54 Am. Dec. 253.

76 Com. v. Ruggles, 6 Allen (Mass.) 588; State

The same is true of domestic authority. A parent, teacher, or master is not guilty of assault and battery in moderately correcting his child, pupil, or apprentice; but it is otherwise if the correction is immoderate.78 Except in the case of master and apprentice, a

v. Parker, 75 N. C. 249, 22 Am. Rep. 669; State v. Belk, 76 N. C. 10; State v. Pugh, 101 N. C. 737,

9 Am. St. Rep. 44.

77 Rex v. Keller, 2 Show. 289; Fletcher v. People, 52 Ill. 395; Johnson v. State, 2 Humph. (Tenn.) 283, 36 Am. Dec. 322; State v. Pendergrass, 2 Dev. & B. (N. C.) 365, 31 Am. Dec. 416; State v. Jones, 95 N. C. 588, 59 Am. Rep. 282; Boyd v. State, 88 Ala. 169, 16 Am. St. Rep. 31; Danenhoffer v. State, 69 Ind. 295, 35 Am. Rep. 216; Vanvactor v. State, 113 Ind. 276, 3 Am. St. Rep. 645; Com. v. Baird, 1 Ashm. (Pa.) 267; State v. Mizner, 45 Iowa, 248, 24 Am. Rep. 769; Snowden v. State, 12 Tex. App. 105, 41 Am. Rep. 667; Hutton v. State, 23 Tex. App. 386, 59 Am. Rep. 776; Dean v. State, 89 Ala. 46; Cooper v. State, 8 Baxt. (Tenn.) 324, 35 Am. Rep. 704.

A master cannot delegate authority to correct his apprentice. People v. Philips, 1 Wheeler, C. C. (N. Y.) 155.

And see, particu

78 See the cases above cited. larly, Reg. v. Griffin, 11 Cox, C. C. 402; Neal v. State, 54 Ga. 281; State v. Pendergrass, 2 Dev. & B. (N. C.) 365, 31 Am. Dec. 416; Morrow v. Wood, 35 Wis. 59, 17 Am. Rep. 471; Dowlen v. State, 14 Tex: App. 61.

master has no right to chastise his servant.79 A husband might formerly correct his wife without being guilty of assault and battery,80 but, as a rule, this is no longer the case.81 He may still, no doubt, use necessary force to restrain her from committing crimes or torts for which he might be liable, or from adulterous intercourse, etc.82

For the purpose of discipline, the superintendent of a poorhouse or reformatory may, if necessary, inflict corporal punishment or otherwise employ force, upon a pauper or prisoner, unless prevented by statute.83 And

79 Cooper v. State, 8 Baxt. (Tenn.) 324, 35 Am. Rep. 704; Davis v. State, 6 Tex. App. 133.

80 1 Bl. Comm. 444; State v. Black, 1 Winst. (N. C.) 266. See, also, State v. Rhodes, Phil. (N. C.) 453, 98 Am. Dec. 78.

81 Com. v. McAfee, 108 Mass. 458, 11 Am. Rep. 383; Owen v. State, 7 Tex. App. 329; Gorman v. State, 42 Tex. 221; State v. Buckley, 2 Har. (Del.) 552; Fulgham v. State, 46 Ala. 143; State v. Oliver, 70 N. C. 60.

82 See Bradley v. State, Walk. (Miss.) 156.

83 See State v. Neff, 58 Ind. 516; State v. Hull, 34 Conn. 132.

Generally, a jailor has no right to inflict corporal punishment upon a prisoner, though he has the right to use all necessary force to detain him in custody. See Prewitt v. State, 51 Ala. 33.

in like manner, at common law, corporal punishment may, under some circumstances, be inflicted upon soldiers or seamen by army or naval officers,84 or by the captain of a vessel.85 In this country, flogging in the army and navy and on merchant vessels is expressly prohibited by act of congress.

212. Self-Defense.

When a man is assaulted, but not in such a way as to endanger his life or threaten great. bodily harm, he has a right to defend himself, and, in doing so, to use any necessary force short of taking his assailant's life or inflicting great bodily harm; and, unless the force employed is clearly excessive, he is not guilty of assault and battery.86 As will be shown.

84 See Wilkes v. Dinsman, 7 How. (U. S.) 89. 85 U. S. v. Ruggles, 5 Mason, 192, Fed. Cas. No. 16,205; U. S. v. Wickham, Wash. C. C. 316, Fed. Cas. No. 16,689.

Evers v.

86 State v. Sherman, 16 R. I. 631; People, 3 Hun (N. Y.) 716, 63 N. Y. 625; Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1; Agee v. State, 64 Ind. 340; Leonard v. State, 27 Tex. App. 186; State v. McNamara, 100 Mo. 100. See, also, State v. Blodgett, 50 Vt. 142; State v. Burwell, 63 N. C. 661.

For a man to spit in another's face does not justify the use by the other of a dangerous wea

in a subsequent section, if he is assaulted in such a way as to put him in danger of death. or great bodily harm, he may take his assailant's life, if necessary in order to save himself.87 The danger need not be real. A reasonably apparent danger is sufficient.89 There must, however, be at least a reasonable apprehension of danger.89 The force employed in repelling an assault must not be clearly out of all proportion to the assault. One who repels a simple assault by force that is clearly excessive, and out of all proportion to the assault, is himself guilty of assault and battery.90 As was explained in a previous

pon.

Com. v. McKie, 1 Gray (Mass.) 61, 61 Am. Dec. 410.

87 Post, § 275 et seq.

88 Post, § 279; 61 Am. Dec. 49;

Campbell v. People, 16 Ill. 17, Evers v. People, 3 Hun (N. Y.) 716, 63 N. Y. 625; State v. Nash, 88 N. C. 618; Christian v. State, 96 Ala. 89; People v. Lennon, 71 Mich. 298, 15 Am. St. Rep. 259; People v. Anderson, 44 Cal. 65.

89 Post, § 279; Lawlor v. People, 74 Ill. 228; State v. Nash, 88 N. C. 618.

90 Floyd v. State, 36 Ga. 91, 91 Am. Dec. 760; State v. Quin, 3 Brev. (S. C.) 515; Com. v. 'Ford, 5 Gray (Mass.) 475; Gallagher v. State, 3 Minn. 270; People v. Douglass, 87 Cal. 281.