SECTION 2. AGGRAVATED ASSAULT.

§ 82. Fear, ability, and intention. It is not essential to an assault that the person assaulted should have been actually put in fear, if the intention of the defendant was to threaten him; nor is it necessary that the defendant should have actually intended to execute his threat. It is not necessary that the threat made shall be within striking distance. It is enough that the person assaulted was compelled to flee to avoid injury. Ability to inflict injury is not necessary to an assault, provided there was apparent present ability.

§ 82a. In general. In the original common law there were no distinct degrees of assault. The offense might be more or less aggravated, and, in exercising his discretion as to the punishment, the judge would take into consideration the enormity of the offense; but there was only one crime, assault, for which the offender might be fined and imprisoned. But in the course of seven centuries a multitude of statutes were enacted providing special penalties for certain assaults; and many of these statutes would be part of the common law in this country, having been enacted before the settlement of this country. Among these statutes may be mentioned 25 Edw. III, de preditionibus, by which the ancient statute making it a capital offense to draw a sword in the king's court was modified so as to require the amputation of the hand of the culprit for an assault made in the presence of the courts of king's bench, common pleas, chancery, or assize, while in session; 33 Hen. VIII, c. 12, providing the penalty of perpetual imprisonment for assault with draw

ing of blood in the king's presence; and in addition to these, many statutes, English and American, have been enacted providing special penalties for assaults made with intent to commit some greater crime, such as murder, rape, or maim. In some of these statutes the offense is made complete as soon as the attempt is made; under others, as in the case of drawing blood in the presence of the king, it is necessary to show an actual battery. The statutory intent is also essential. If the offense is assault with intent to murder, the charge is not sustained by proof of assault with intent to commit manslaughter. If the offense is assault with intent to kill, it is not enough to show that an instrument was used which might have resulted in death, unless, from its use and other circumstances, the jury are satisfied that the accused intended that death should result. It would seem that any evidence that would sustain an indictment under a statute making an assault with intent to kill a special crime, would sustain a charge of attempt to murder or to commit manslaughter, as the case might be, at common law.

SECTION 3. BATTERY.

§ 83. Defined. Any unlawful touching of the person of another by the aggressor himself, or any other substance put in motion by him is a battery. By this definition it is an essential prerequisite that the person either be touched by the aggressor himself or by the substance put in motion by him. There must be touching of the person; but one's wearing apparel is so intimately connected with the person as in law to be regarded a part of

it, and so is his cane or anything connected with his person. To strike the horse on which the person is riding would be a battery of a person. It has even been assumed that to strike the horse a person is riding after would be a battery because the horse, carriage, and person are so intimately connected.

SECTION 4. FALSE IMPRISONMENT.

§ 84. Defined. False imprisonment is any unlawful restraint of one's liberty, whether in a place set apart for imprisonment generally or used only for the particular occasion, whether between walls or not, effected either by physical force actually applied, or by words and an array of force. What is a legal justification of the imprisonment, may be given in evidence under a plea of not guilty, upon an indictment for such assault, for a false imprisonment is merely an aggravated assault. The offense is a misdemeanor punishable usually by fine, imprisonment, or both.

SECTION 5. KIDNAPPING.

§ 85. Defined. The most aggravated species of false imprisonment is the stealing and carrying away or secreting of any person, which is an offense at the common law punished by fine and imprisonment. But by statute of 43 Eliz., c. 13, the offense was made a felony punishable by death.

SECTION 6. MAIM, OR MAYHEM.

86. Defined. A maim at common law is such a bodily hurt as renders a man less able in fighting to defend him

self or annoy his adversaries; but if the injury be such as disfigures him only, without diminishing his physical ability, it does not fall within the crime of maim. Upon this distinction, the cutting off, disabling, or weakening a man's hand or finger, or striking out an eye or tooth, or castrating him, is maim. But the cutting off his ear or nose is not such at common law. By the ancient law of England he that maimed another was sentenced to lose the member like that of which he had deprived the other; but as this was a barbarous legal retaliation, suitable only to a crude state of society, and further because the punishment could not be repeated on a repetition of the offense, it did not long endure. The crime and punishment were modified by a multitude of statutes in England; and in most cases the punishment was finally reduced to fine and imprisonment. In this country it has been much debated whether the crime is a felony in the absence of a statute declaring it so.

SECTION 7. RAPE.

§ 87. Defined. Rape consists in a man's having unlawful carnal knowledge of a woman without her consent. Another woman or a person physically incompetent to commit the offense himself in the first degree may be a principal in the second degree. The woman's husband may be a principal in the second degree to the rape of his wife by another man; but could not be guilty of the crime himself, because of the legal consent given by the woman at marriage.

§ 88. Without consent. A man may be guilty of rape

of a woman who does not make any opposition to him. It is not essential that it shall be against her will; it is enough that it is without her consent. Therefore, it was held that the man was guilty of rape who found a woman insensibly drunk by the roadside and violated her person without her knowledge, while she was in that drunken and stupefied condition (1). For the same reason it has been argued that one who obtains intercourse with a woman by impersonating her husband is guilty of rape, though she consented to the act. The majority of the decisions seem to be against this doctrine, though it would seem to be sustained by logic, the woman having consented to a lawful act and the defendant having committed the crime of adultery, which was not the act consented to. If the woman was conscious and recognized the defendant but made no opposition the presumption would be, she having ability to consent, that she did consent to his act. If she did not resist to the extent of her ability it would also be presumed that she consented, but the resistance of which a woman would be capable under circumstances of fright would be the question, not what she could do when not prostrated nor scared. Statutes provide in the several states that sexual intercourse with women under certain ages shall be considered rape, though with the consent of the girl, for the reason that she has not sufficient discretion to realize the nature of the act. The age thus fixed has varied all the way from 12 to 18 years.

§ 89. When crime is complete. There was a considerable debate a little over a hundred years ago in the courts

(1) Commonwealth v. Burke, 105 Mass. 376.