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panying circumstances, to believe that he will instantly receive a blow, unless he strike in self-defence. j And one reason for this is, that an attack apparently likely to hurt is as provocative of a breach of the peace as one actually capable of hurting.

§ 1244. So drawing a gun or pistol on another with threat to use it, is an assault, although the weapon is not pointed. k Whether, when the weapon is not loaded, there is an assault, has been doubted. But, as will be soon more fully seen, when the attitude is threatening, and the effect is to terrify, the offence is complete. 1

Where, however, there is wanting apparent and real ability to hurt in any way, there is, generally, no assault. m Thus the mere pointing of an unloaded gun is said not to be an assault, without action indicating intention to attack. And it has been ruled that a gun or pistol, to constitute an assault, must be aimed at the party assaulted within the distance at which it may do execution. n

The true rule is, that there must be some adaptation of the means to the end, and it is enough if this adaptation be apparent, so as to impress or alarm a person of ordinary reason. O Thus where the prosecutor was at a place where he had a right to be, and four other persons having in their possession a manure fork, a hoe, and a gun, by following him, and by threatening, and insulting language, put him in fear, and induced him to go home sooner than, or by a different way, from what he would otherwise have gone ; it was held that these persons were guilty of an assault upon him, though they did not get nearer to him than seventy-five yards, and did not level the gun at him. p

į State v. Davis, 1 Iredell, 125 ; Blake v. Barnard, 9 C. & P. 626; State v. Hampton, 63 N. C. 13; Peo- R. v. James, 1 C. & K. 530; Robinson ple v. Yslas, 27 Cal. 630. Post, $ v. State, 31 Texas, 170. 2694-6.

n Tarver v. State, 43 Ala. 354; k People v. McMakin, 8 Cal. 547; Smith v. State, 32 Texas, 593. State v. Epperson, 6 Jones, Mo. 255; o Kunkle v. State, 32 Indiana, 220 ; State v. Church, 63 N. C. 15.

Mullen v. State, 45 Alab. 43; Tarver 1 Post, $ 1247, 2694 ; see R. v. St. v. State, 43 Alab. 352. And see JohnGeorge, 9 C. & P. 483; State v. Smith, son v. State, 26 Ga. 611; Allen e. 2 Humph. 457 ; State v. Shepherd, 10 State, 28 Ga. 395; Com. v. McDonald, Iowa, 130; State r. Myerfield, Phill. 5 Cush. 365. And fully, post, $ 2694-6. (N. C.) L. 108. State v. Mullen, 45 p State v. Rawles, 65 N. C. 334; Alab. 43.

post, $ 2694m See post, $ 1280, 2694-6.

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Conditional threats. — The appellant drew his pistol, cocked it, pointed it towards the breast of F., and said, “ If you do not pay me my money, I will have your life,” the parties being close together. It was held, that this was an assault. r

So when A. being within striking distance, raises a weapon for the purpose of striking B., and at the same time declares that if B. will perform a certain act he will not strike him, and B. does perform the required act, in consequence of which no blow is given, this is an assault in A. 8

Recklessly shooting into a crowd is an assault. t

An assault on several indiscriminately is an assault on each individual. u

$ 1245. Modes of violence. — Striking at another with a cane, stick, or fist, although the party striking misses his aim ; v drawing a sword or bayonet, or throwing a bottle or glass with intent to wound or strike ; presenting a gun at a man, and beginning to move towards him ; w assuming a threatening attitude and hurrying towards him ; or any other act indicating an intention to use violence against the person of another, completes the

offence. x

Evidence of false imprisonment and of riotous acts will sustain an indictment for assault and battery. y

$ 1246. Poison and injurious drugs. — It has been always regarded as permissible to charge the administering of poison as an assault; and the same reasoning applies to the malicious application of injurious drugs. 2

In England, however, it has been ruled that to put cantharides into liquor, with intent to excite and inflame, and to give it thus to another, is not an assault; a but this cannot be accepted as a proposition universally correct. There are cases of poisoning which clearly involve assaults, - e. g. throwing vitriol at another, injecting poison by force. Here there can be no question. The difficulty arises when we take into view those cases of poisoning in which the person poisoned voluntarily accepts the poison, supposing it to be something else. Can there be an assault upon a consenting party, if such person be capable of consent? Does fraud, or mistake as to the nature of the act consented to, nullify such assent? There is authority, in cases of rape, b to hold that it does. But can this principle be extended so far as to include all cases in which a person receives voluntarily from another, under a false pretence, something which injures the person by whom it is received ? If so, we will have very much to extend the definition of assault, and include in it, in fact, masses of cases formerly considered to be frauds. Upon the whole, the English practice, of holding that assaults, as a rule, cannot be maintained when there is assent by a person capable of assenting, is the safest. 81 In the present instance, there is no objection to this, as poisoning, or attempted poisoning, independently of the numerous statutes passed to meet the case, is an offence at common law. § 1247. Threats with preparations. — So, generally, threats of

R. 348.

Keefe v. State, 19 Ark. 190. x 1 Hawk. c. 62, s. 1. Stephens v. : State v. Morgan, 3 Iredell, 186; Myers, 4 C. & P. 349. U. S. v. Richardson, 5 Cranch C. C. y Long v. Rogers, 17 Alab. 540;

State v. Dineen, 10 Minn. 409. t State v. Myers, 19 Iowa, 517. z See People v. Blake, 1 Wheeler

u State v. Merritt, Phill. (N. C.) L. C. C. 490. Whart. Prec. in loco. 134.

a R. v. Walkden, 1 Cox C. C. 282; o Ro. Abr. 545, 1. 45.

R. v. Hanson, 2 C. & K. 912; over u Richels v. State, 1 Sneed, 606. ruling R. v. Button, 8 C. & P. 660.

, great bodily harm, accompanied by acts showing a formed intention of putting them into execution, if intended to put the person threatened in fear of their execution, and if they have that effect and are calculated to produce that effect upon a person of ordinary firmness, constitute a breach of the public peace, which is punishable by indictment. c So, also, detaining another by threats, in a particular place, may be an assault, d though it is not so when a mere passive resistance is offered without any threats or other indications from which the intention of violence may be presumed. e

§ 1248. Coercive wrongful influence applied to children or dependents. — One decoying a female under ten years of age, and detected standing before her in a state of indecent exposure, is properly convicted of an assault with an attempt to commit a rape, though there is no evidence of his actually touching her.f

b See ante, $ 751 f, h, 1142 ; post, Humph. 43; Bloomer v. State, 3 Sneed, 1697. 01 See ante, $ 751 b.

e Inness v. Wylie, 1 C. & K. 257; c State v. Benedict, 11 Verm. 236. People v. Lee, 1 Wheeler C. C. 364. Post, $ 2702 d.

f Hays v. People, i Hill, 351. See d Long v. Rogers, supra; Bird v. ante, $ 1155. Jones, 7 Q. B. 742; Smith v. State, 7


And even non-resistance is no defence to an indictment for an assault with intent to take indecent liberties, when the defendant is a schoolmaster, and the person assailed a female pupil. g

So where a medical practitioner had sexual connection with a female patient of the age of fourteen years, who had for some time been receiving medical treatment from him, it was held that he was guilty of an assault, the jury having found that she was ignorant of the nature of the defendant's act, and made no resistance, solely from a bona fide belief that the defendant was (as he represented) treating her medically, with a view to her cure; and the intimation of the judges was, that he might have been indicted for rape. h

As has been seen, a person in authority, who takes indecent liberties with another, without consent, though without resistance, is indictable for an assault i; as where a medical man unnecessarily stripped, with his own hands, a female naked, under the pretence of examining her ;j where a parish officer, against the will of a pauper, cut off her hair;k and where the captain of a vessel compelled a seaman, in an exhausted state, to go aloft, to which the latter, in terror, assents.1 But where there is consent, by a person capable of consenting, there is ordinarily no

assault. m

$ 1249. Exposure of children. — Where a parent exposes a young child to the inclemency of the weather, and no injury results, it seems this is not an assault;n and to constitute a neglect by the parent to supply food, &c., a misdemeanor at common law, there must be a positive injury to the health. o

But where C. was delivered of a child, at the house at which A. and B. resided, they telling her that the child was to be taken to an institution to be nursed, and A. and B. took the child, and put it into a bag, and hung it on some park palings at the side of a footpath, and there left it; it was held, that this was an assault on the child. p

9 R. t. Nichol, R. & R. 130; R. v. See R. v. Miles, 6 Jur. 243. Post, $ McGavaran, 6 Cox C. C. 64.

1260. h R. v. Case, 1 Eng. L. & Eq. R. I U. S. v. Freeman, 4 Mason C. C. 544; 1 Den. C. C. 580; 4 Cox C. C. 505; ante, $ 1410. 220. See ante, 1155. And also, m See post, $ 1262, and particularly People v. Bransby, 32 N. Y. 525. ante, $ 751 c, f, for qualifications.

i R. v. Nichol, R. & R. 130; R. v. n R. v. Renshaw, 20 Eng. Law & McGavaran, 6 Cox C. C. 64; 1 Ben- Eq. 593 ; 2 Cox C. C. 285. See Wh. nett & H. Lead. Cas. 515.

Prec. 916. Ante, $ 1014; post, § į R. v. Rosinski, 1 Mood. C. C. 12. 2508-11. See ante, $ 1155.

o R. v. Philpott, Dears. C. C. 179 ; k Forde v. Skinner, 4 C. & P. 239. 6 Cox C. C. 140; 20 Eng. Law &

Eq. 591. Post, $ 2508–11.

§ 1250. Secret assaults. — No matter how private or secret the assault may be, it does not thereby cease to be an indictable offence if there be injury done, or even if the party assailed be reasonably put in fear. q $ 1251. Principals, fc.- One who incites others to commit

an assault is guilty, and may be punished as a principal, if the offence be actually committed, although he did not otherwise participate in it, as whatsoever will make a man an accessary before the fact, in felony, will make him a principal in treason, petit larceny, and misdemeanors. r

If two parties go out to strike one another, and do so, it is an assault in both, and it is quite immaterial which strikes the first blow. 8 And consequently, when a number of persons meet together, and there is evidence tending to show a common design to commit an assault upon another, they may all be properly found guilty, though only one of them used threatening and insulting language to him. t

What is battery. - To spit at another, u to push or thrust him, v to push another against him, w to throw a squib at him, z and the like, constitute a battery.

Successive batteries. Evidence admitted for a different purpose, went to show a second battery committed within a short interval on the same day. It was held, that the state, having elected to try the defendant for the first battery, could not, without abandoning the first, convict him of the second, for which he has not been tried.

y R. v. March, 1 C. & K. 496 s R. v. Lewis, 1 Car. & Kir. 419. Tindal. Post, $ 2508–11.

t State v. Rawles, 65 N. C. 334. Com. v. Simmons, 6 J. J. Mar- u 6 Mod. 142. shall, 615.

v Ibid. r State v. Lymburn, 1 Brevard, 397; w Bul. N. P. 16. Com. v. Hurley, 99 Mass. 433; State 2 2 W. Bl. 892. v. M'Clintock, 8 Iowa, 203. All thus y Tompkins v. State, 17 Geo. 356. concerned may be charged jointly with Ante, § 565–7. the assault. Ibid. See ante, $ 132–3.



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