these are clearly within the legal definition of an assault and battery, and, among gentlemen, too often induce duelling and terminate in murder. As, therefore, anything attached to the person partakes of its inviolability, De Longchamp's striking Monsieur Marbois's cane is a sufficient justification of that gentleman's subsequent conduct."

The case referred to in Pennington, supra, was a civil action for a trespass committed by the defendant on the property of the plaintiff, by striking with a large club the plaintiff's horse, which was before a carriage in which the plaintiff was riding. The court say: "To attack and strike with a club, with violence, the horse before a carriage in which a person is riding, strikes me as an assault on the person; and if so, the justice had no jurisdiction of the action. But if this is to be considered as a trespass on property, unconnected with an assault on the person, I think it was incumbent on the plaintiff below to state an injury done to the horse, whereby the plaintiff suffered damage; that he was, in consequence of the blow, bruised or wounded, and unable to perform service; or that the plaintiff had been put to expense in curing of him, or the like."

The above case, being an action of trespass for an injury to the horse of the plaintiff, and not a prosecution for an assault, or an assault and battery upon the person of the plaintiff, we think that but little importance should be attached, or weight given, to the loose remark of the judge, that the striking of a horse attached to a carriage was an assault upon the person riding in the carriage.

The

The case of The State v. Davis, supra, was a prosecution for an assault upon an officer, in releasing from his custody a negro. facts will sufficiently appear from the quotation which we make from the opinion of the court. The court say:

"The general rule is that any attempt to do violence to the person of another, in a rude, angry, or resentful manner, is an assault; and raising a stick or fist within striking distance, pointing a gun within the distance it will carry, spitting in one's face, and the like, are the instances usually put by way of illustration. No actual violence is done to the person in any one of these instances; and I take it as very clear that that is not necessary to an assault. It has, therefore, been held that beating a house in which one is, striking violently a stick which he holds in his hand, or the horse on which he rides, is an assault, the thing in these instances partaking of the personal inviolability. Respublica v. De Longchamps, 1 Dall. 114; Wambough v. Shank, Penning. 229, cited in 2d part Esp. Dig. 173.

"What was the case here? Laying the right of property in the negro out of the question, the prosecutor was in possession, and, legally speaking, the defendants had no right to retake him with force. As far as words could go, their conduct was rude and violent in the extreme. They broke the chain with which the negro was confined to the bedpost, in which the prosecutor slept, and cut he rope by which he was confined to his person, and are clearly within the rule. The rope was as much identified with his person

as the hat or coat which he wore, or the stick which he held in his hand. The conviction was therefore right."

We are inclined to the opinion that the chain and rope so connected together the prosecutor and negro as to make identification as complete as the hat or coat on the person, or the stick in the hand. The ruling in the above case was based upon the close and intimate connection which existed between the prosecutor and the negro; but no such identity or connection between the prosecutor and his horses in the case in judgment is shown.

The case of The United States v. Ortega, supra, was a prosecution instituted by the United States for the purpose of vindicating the law of nations and of the United States, offended, as was alleged, in the person of a foreign minister, by an assault committed on him by the defendant. The proof was, that the defendant seized hold of the breast of the coat of Mr. Salmon, the prosecuting witness, and retained his hold, while he enumerated his cause of grievance; and until a third person came up and compelled him to release his hold.

The court said: "It was argued by the counsel for the defendant that, to constitute an assault, it must be accompanied by some act of violence. The mere taking hold of the coat, or laying the hand gently upon the person of another, it is said, does not amount to this offence; and that nothing more is proved in this case, even by Mr. Salmon. It is very true that these acts may be done very innocently, without offending the law. If done in friendship, for a benevolent purpose, and the like, the act would certainly not amount to an assault. But these acts, if done in anger, or a rude and insolent manner, or with a view to hostility, amount not only to an assault, but to a battery. Even striking at a person, though no blow be inflicted, or raising the arm to strike, or holding up one's fist at him, if done in anger, or in a menacing manner, are considered by the law as assaults."

It is very obvious that the above cases do not support the position assumed by the counsel for appellee, but are in entire accord with the elementary writers from whom we have quoted.

The most accurate and complete definition of a battery that we have met with is that given by Saunders, and which has been adopted by most subsequent writers, and that is: "A battery is an unlawful touching the person of another by the aggressor himself, or any other substance put in motion by him." By this definition, it is an essential prerequisite that the person must either be touched by the aggressor himself, or by the substance put in motion by him. There must be a touching of the person. One's wearing apparel is so intimately connected with the person as in law to be regarded, in case of a battery, as a part of the person. So is a cane when in the hand of the person assaulted.

But in the case under consideration, the court ignores all these things, and instructs the jury to convict on proof alone of the striking of the horses of the prosecuting witness. It is not even necessary, according to this charge, that the prosecuting witness should have been in the wagon or holding the lines, or connected with or attached to the horses in any way. That Bien was driving his team

and gathering his corn does not necessarily so connect him with the horses that the touching of the horses would be an assault and battery on him. He may have been, as is frequently done, driving his horses from one pile of corn to another, by words of command, without being in the wagon or having hold of the lines.

The law was correctly stated by the court in the first charge given to the jury. It was as follows: "Before you will be justified in finding the defendant guilty, the evidence must satisfy you beyond a reasonable doubt that the defendant, at, &c.

in a rude,

or an insolent, or an angry manner, touched Charles Bien."

In placing a construction upon the instruction complained of, it is our duty to look at all the instructions given on the same subject; and if the instructions taken together present the law correctly, and are not calculated to mislead the jury, we should affirm the judg

ment.

On the other hand, if the two charges are inconsistent with each other; if they were calculated to confuse and mislead the jury; or if they must have left the jury in doubt or uncertainty as to what was the law as applicable to the facts of the case, then the judgment should be reversed. Somers v. Pumphrey, 24 Ind. 231. The above rules have been applied by this court in civil cases. The rule laid down in criminal causes is as follows: "An erroneous instruction to the jury in a criminal case cannot be corrected by another instruction, which states the law accurately, unless the erroneous instruction be thereby plainly withdrawn from the jury." Bradley v. The State, 31 Ind. 492.

Construing these charges together, how do they stand? The jury are first told that, to justify a finding of guilty, they must be satisfied beyond a reasonable doubt that the defendant touched Charles Bien; and then, in the second charge, the court continues, that the defendant might lawfully employ reasonable force, &c., in defence of his possession or property, but that under circumstances hypothetically put by the court, Charles Bien had the right to be on the defendant's premises gathering corn, "and if under such circumstances, &c., while Bien was driving his team in the field in the act of gathering the corn, the defendant struck and beat his horses in a rude and angry manner, with a stick, the defendant is guilty of an assault and battery."

Plainly, then, the charge is, that the evidence must show the touching of Charles Bien by the defendant, but that if Bien is driving his team, &c., and the defendant strikes his horses (that is Bien's horses) with a stick, in a rude and angry manner, then such touching of the horse is, in law, a touching of Bien, and the defendant is guilty of an assault and battery. Logically the charge states the law thus: Generally, to sustain a charge of assault and battery on A., it is essential to prove a touching of A. by the defendant; but under certain circumstances, such as if A. is driving his team, &c., and the defendant touches the horses of A., then, in that case, such touching of the horses is a touching of A., and if such touching of the horses is unlawfully done, and was made, &c., then the defendant may be found guilty of an assault and battery on A.

There was evidence tending to prove that the defendant struck Charles Bien. He and his two sons, Edward and Frank, so swear. The defendant swears he did not.

The following is briefly the evidence tending to prove the assault and battery upon the horses:

Charles Bien testified: "He hit my horses on the head with a big club about three feet long. He struck my horses two or

I was loading corn out of

the piles; was loading up corn when he struck the horses."

Same witness, on cross-examination, testifies: "When he struck the horses, he struck them on the head, and they stopped, &c. Don't know who held the lines. Maybe my little boy held one and me the other. . . . . He struck the horse next to me. team was made to stand when defendant struck the horses. was not in the wagon when he struck them."

The
I

Edward Bien testified: "Kirland hit the horses on the head, and they stopped. We were just going to drive out. My father was then standing on the ground near the wagon. Defendant put his hands on the horses to unhitch them from the wagon; tried to unhitch the traces. Just before that he struck the horses, when father was standing on the other side of the wagon."

Frank Bien testified: "At the time the horses were struck, father was in the wagon."

The defendant testifies that he "did n't touch the horses, except that he attempted to unhitch them from the wagon."

It is apparent that there was evidence in the case to which the second instruction was applicable. The verdict being general, we are unable to determine whether he was convicted for touching the person of Bien or for striking his horses. It may be that the jury found the defendant guilty of striking the horses of Bien, for the defendant admitted that he attempted to unhitch the horses from the wagon, and consequently must have touched them, while he positively denies that he touched the person of the prosecuting witness. Besides, there was evidence tending to impeach the character of Bien. The jury may therefore have doubted, reasonably, the guilt of the defendant in the striking of Bien, and found him guilty only of having "in a rude and angry manner struck the horses of Bien with a stick," while "he was driving his team in the act of gathering corn."

The second instruction was inapplicable to the evidence, and was calculated to mislead the jury, and being erroneous, the judgment

should be reversed.

The judgment is reversed; and the cause is remanded for a new trial, in accordance with this opinion.

WHITEHURST v. THE STATE.

(43 Indiana, 473. Supreme Court, November, 1873.)

Conviction after Repeal of Law.

The Act of February 27, 1873 (Acts 1873, p. 151), to regulate the sale of intoxicating liquors, contains no provision saving prosecutions pending at the time of its passage, and as it repealed all laws in conflict with any of its provisions, a judgment rendered in such an action for a violation of the previous law is without foundation, even if rendered on a plea of guilty.

FROM the Allen Criminal Circuit Court.

L. Newberger & J. A. Holman, for appellant.

J. C. Denny (Attorney General), for the state.

OSBORN, J. On the 8th day of February, 1873, the grand jury returned into open court an indictment against the appellant for retailing intoxicating liquor without license. On the 27th of the same month, an act to regulate the sale of intoxicating liquors, &c., was approved. Acts 1873, Acts 1873, p. 151. On the 12th day of March following, the defendant appeared in open court and pleaded guilty, and a fine of ten dollars was assessed against him, and a judgment rendered thereon in the usual form. On the 14th day of the same month, and at the same term of the court, the appellant moved the court to set aside the judgment. His motion was overruled, and he excepted.

The errors assigned are:

1st. In overruling the motion to set aside the judgment. 2d. In rendering judgment against him.

The Act of February 27, 1873, repealed all laws in conflict with any of its provisions. Sec. 20, p. 157, Acts 1873. The act in force when the offence was committed, and under which the indictment was found, had therefore been repealed before the conviction of the appellant.

In Taylor v. The State, 7 Blackf. 93, it is said: "No principle is better settled than that a conviction cannot take place after the repeal of a violated law, unless the repealing act contain a provision for that purpose." Sprigs v. The State, 2 Ind. 75; The State v. Loyd, 2 Ind. 659.

The Act of 1873 contains no provision saving prosecutions then pending. The result is that the judgment was rendered without any law for it to rest upon. In such a case and under such circumstances, it can make no difference that the judgment was rendered on a plea of guilty.

The judgment of the said Allen Criminal Circuit Court is reversed. The cause is remanded, with instructions to said court to set aside said judgment and permit the appellant to withdraw his plea of guilty, and discharge him from further prosecution or custody on said indictment.