section, mere threatening or abusive language does not amount to an assault,91 91 and it will not justify or excuse an assault and battery in return.92 One who is assaulted by another, without fault on his part, is not bound to retreat before resorting to measures of self-defense short of taking life or inflicting great bodily harm.93 Nor is he obliged to wait un

til he is struck. He may prevent a battery by striking first. One who is himself the aggressor, or who intentionally provokes an assault, as by the use of abusive language, cannot escape criminal responsibility for blows given him in the course of the difficulty on the ground that they were in self-defense.95

91 Ante, § 198.

92 State v. Martin, 30 Wis. 216, 11 Am. Rep. 567; Keiser v. State, 71 Ala. 481, 46 Am. Rep. 342; Nash v. State, 2 Tex. App. 362; Crosby v. People, 137 Ill. 325; Steffy v. People, 130 Ill. 98; State v. Rider, 90 Mo. 54.

It is otherwise in some states. See Brown v. State, 74 Ala. 42; Mitchell v. State, 41 Ga. 527.

93 State v. Sherman, 16 R. I. 631, Beale's Cas. 341; Gallagher v. State, 3 Minn. 270.

94 State v. McDonald, 67 Mo. 13; Gallagher v. State, 3 Minn. 270.

95 Brown v. State, 74 Ala. 42; State v. Shields, 110 N. C. 497; People v. Miller, 49 Mich. 23; State

213. Resisting Unlawful Arrest.

An unlawful arrest is an assault and battery, and may be resisted by any necessary force short of taking life or inflicting great bodily harm. If such force only as is apparently necessary is employed, the person resisting is not guilty of assault and battery.96 It is otherwise if the force used is clearly excessive.97

214. Defense of Property.

While a person cannot take another's life or inflict great bodily harm in defense of his property, except when it is necessary to prevent a felony attempted by violence or surprise,98 he may use any force short of this that may reasonably seem to be necessary in defense of his property, real or personal.99 If

v. Maguire, 69 Mo. 197; State v. Bryson, 2 Winst. (N. C.) 86; post, § 281.

96 Alford v. State, 8 Tex. App. 545; People v. Denby, 108 Cal. 54; State v. Belk, 76 N. C. 10; State v. Hooker, 17 Vt. 658; post, § 277.

97 Galvin v. State, 6 Cold. (Tenn.) 283. And see Com. v. Cooley, 6 Gray (Mass.) 350.

98 Post, § 286.

99 People v. Dann, 53 Mich. 490, 51 Am. Rep. 151; Com. v. Donahue, 148 Mass. 529, 12 Am. St. Rep. 591, Beale's Cas. 353; Roach v. People, 77 Ill. 25; People v. Flanagan, 60 Cal. 2, 44 Am. Rep.

unnecessary force is used, it is an assault and battery, 100 By the weight of authority, if a person is in peaceable possession of another's property, though his possession may be wrongful, the owner cannot resort to violence in order to regain possession, but he must resort to the machinery of the law. A man, however, may use necessary force to regain momentarily interrupted possession of his property, as where another wrongfully takes it in his presence, and refuses to give it back.101

A person may lawfully eject another from his premises, after requesting him to leave, if he has no right to remain, and he may use such force in doing so as may be reasonably necessary without being guilty of an assault

52; Filkins v. People, 69 N. Y. 101, 25 Am. Rep. 143.

100 Wild's Case, 2 Lewin, C. C. 214, Beale's Cas. 347; Com. v. Goodwin, 3 Cush. (Mass.) 154; State v. Kennedy, 20 Iowa, 569; Com. v. Donahue, 148 Mass. 529, 12 Am. St. Rep. 591, Beale's Cas. 353.

101 Com. v. Donahue, 148 Mass. 529, 12 Am. St. Rep. 591, Beale's Cas. 353. And see Rex. v. Milton, Mood. & M. 107; Com. v. Lynn, 123 Mass. 218; Com. v. Kennard, 8 Pick. (Mass.) 133; State v. Elliot, 11 N. H. 540; Anderson v. State, 6 Baxt. (Tenn.) 608.

and battery.102 But he is guilty if he uses unnecessary force.103

used, 104

Employes of railroad companies and other carriers are not guilty of assault and battery in ejecting trespassers, or persons violating reasonable regulations, from the cars or stations, if no unnecessary force is The same is true of innkeepers,105 and of a sexton ejecting a person from church.106 If a person has entered by force, or resorts to force after entering, no request to leave is necessary before ejecting him, but it is otherwise if the entry was peaceable.1 107

102 Com. v. Clark, 2 Metc. (Mass.) 23; Long v. People, 102 Ill. 331; People v. Foss, 80 Mich. 559, 20 Am. St. Rep. 532.

103 Thus, it is an assault and battery to kick a person in ejecting him from a house. Wild's Case, 2 Lewin, C. C. 214, Beale's Cas. 347. See, also, Long v. People, 102 Ill. 331; Com. v. Dougherty, 107 Mass. 250.

104 Com. v. Power, 7 Metc. (Mass.) 596, 41 Am. Dec. 465; State v. Overton, 24 N. J. Law, 435, 61 Am. Dec. 671; People v. Jillson, 3 Park. Cr. R. (N. Y.) 234; State v. Goold, 53 Me. 279.

105 State v.

573.

Steele, 106 N. C. 766, 19 Am. St. Rep.

106 Com. v. Dougherty, 107 Mass. 247.

107 State v. Burke, 82 N. C. 551; State v. Woodward, 50 N. H. 527.

An assault with intent to kill is not justifiable in defense of property merely. The law in this respect must be the same as in homicide.108

215. Defense of Others.

It is well settled that a parent has the right to use necessary force in defense of his child, and vice versa.109 The same is true of husband and wife,110 brothers and sisters,111 and master and servant.112 The circumstances, however, must be such that the person defended would have a right to use the force in his own defense. For example, he must not be the aggressor." 113 The right

108 State v. Gilman, 69 Me. 163, 31 Am. Rep. 257. See post, § 286.

109 Campbell v. Com., 88 Ky. 402, 21 Am. St. Rep. 348; Patten v. People, 18 Mich. 314, 100 Am. Dec. 173; Crowder v. State, 8 Lea (Tenn.) 669; Com v. Malone, 114 Mass. 295; post, § 288.

A father may defend his daughter against an assault by her husband. Campbell v. Com., supra. 110 Biggs v. State, 29 Ga. 723, 76 Am. Dec. 630. 111 State v. Melton, 102 Mo. 683.

112 Pond v. People, 8 Mich. 150; Orton v. State, 4 G. Greene (Iowa) 140.

113 State v. Melton, 102 Mo. 683; Crowder v. State, 8 Lea (Tenn.) 669.