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ASSAULT (See titles ARREST, LARCENY, OFFENCES AGAINST THE PERSON, RAPE, SODOMY.)

COMMON ASSAULT by indictment. (M.)

COM. LAW.

(As to a summary conviction, see post.)

Aggravated assault. 14 & 15 Vic., c. 19, s. 4.

Fine, or imprisonment, or both, and if actual bodily harm oceasioned, with or without hard labour. 14 & 15 Vic., c. 100, s. 290.

The Court will not pass judgment for an assault during the pendency of an action for the same assault. R. v. Mahon, 4 Ad. & Ell. 575.

Imprisonment, with or withou hard labour, not exceeding THREE years.

What an assault.]-Mere words never amount to an assault (1). Striking at another with fist or stick, etc., although the party misses his aim, is an assault (2); and so is the drawing a sword, presenting a gun, pointing a pitchfork, or any act indicating an intention, coupled with an ability to exercise violence (3); and this though the accused were stopped in his purpose (4). A battery is to beat or wound. If one strike or throw anything at another, if he miss him it is an assault; if he hit him it is a battery; thus every battery includes an assault (5). A " wounding" is where the violence is so great as to draw blood (6). The legal acceptation of "to beat" includes every touching of another's person or clothes, however trifling, in an angry or insolent manner (7); as thrusting or pushing him in anger (8); holding him by the arm; spitting in his face (9); jostling him out of the way (10); pushing another man against him (11); throwing a squib at him (12); striking a horse upon which he is riding, whereby he is thrown (13). An unlawful imprisonment is also an assault (14); so also is the exposing a child of tender years, or under the control and dominion of the party, to the inclemency of the weather (15); but merely omitting to do an act, without a duty, will not create an indictable offence (16). Where parish officers cut off the hair of a pauper in the poorhouse by force and against her

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EVIDENCE.

Prove the circumstances attending the assault and battery, however trifling-proof of either will support the indictment-circumstances of aggravation under the alia enormia, if not amounting to a distinct trespass. 2 Phil. Ev. 7 ed. 189; Rosc. Cr. Ev. 2 ed. 257-259; Arch. 12 ed. 423, et seq. Prec. of Indict. Arch. 423 Matt. C. L. 421.

OBSERVATIONS.

As to what will amount to an assault, see note infra - as to what may be shown for the defence, see p. 31, n. et seq. A summary conviction before magistrates (a) is a bar to an indictment for the same assault (b). On an indictment against two for an assault, where one pleads guilty and pays a fine, he may be called as a witness on behalf of the other defendant (c). If there be cross indictments for assault to be tried as traverses at the assizes, and the same transaction be the subject of both indictments, the judge will direct the jury to be sworn in both traverses, and the council for the prosecution of that which is entered first, will open his case and call his witnesses; the counsel on the other side will then do the like, and there will be no reply on either side (d).

Same as supra.

(a) See post, p. 34.

(b) 9 Geo. IV. c. 31, s. 27, post, p. 29.

(c) R. v. Fletcher, 1 Str. 633; Ph. Ev. 8 ed. 69.

(d) Per Gurney, B., Reg. v. Wank lyn, and R. v. Vaughan, 8 C. & P. 290..

will, it was held an assault (17); so also where a medical man, under the pretence that he could not otherwise judge of her illness, himself stripped off the clothes of a female patient, and rubbed her whilst naked with something from a bottle (18); and where a medical man had connection with a girl under fourteen years of age, under the pretence that he was treating medicinally, she not resisting, from a bona fide belief that such was the case, he was held guilty of an assault (19). If a person puts a deleterious drug (as cantharides) into coffee, it is an assault upon the party taking it (20). If a master take indecent liberties with a female scholar without her consent, though she do not resist, it is an assault (21); but in an attempt to commit the misdemeanour of having carnal knowledge of a girl between ten and twelve years old, the consent of the girl puts an end to the charge of assault (22). If a man goes to bed to a married woman, and she permits him to have connexion with her under the belief that it is her husband; the fraud upon the woman makes it an assault (23).

What does not amount to an assault-accident.]-An injury purely accidental, and the party wholly without fault, will not amount to a battery (24); unless it be in the course of an unlawful act, as where two are fighting, and one of them hits a third person unintentionally; this is not such an accident as will prevent the blow from being a battery (25). If a horse run away with his rider, and run against a man, it is no battery (26); so if a soldier in his ranks discharge his

(17) Forde v. Skinner, 4 C. & P.

239.

(18) Rosinski's case, 1 Mood. C. C.19. (19) R. v. Case, 1 Den. C. C. 580; S. C. 1 Temp. & M. 318.

(20) Button's case, 8 C. & P. 660.
(21) Nichol's case, R. & R. 130.
(22) Bank's case, 8 C. & P. 574;

Meredith's case, Id. 589. R. v. Read, 1 Den. C. C. 377.

(23) Williams's case, 8 C. & P. 286; see also Saunder's case, Id. 265.

(24) Weaver v. Ward, Hob. 134; 2 Roll. Abr. 548.

(25) James v. Campbell, 5 C. & P. 372.

(26) Gibbons v. Pepper, 2 Salk. 637.

OFFENCE.

ASSAULT-continued.

Assault and FALSE IMPRISON

MENT. (M.)
COM. LAW.

PUNISHMENT.

Fine or imprisonment, or both.

gun, and a man unexpectedly pass before him at the time, and be hurt by it (27). It is said, that it may be deemed a general rule in criminal cases, that the same facts which would make a killing homicide by misadventure, will be a good defence upon an indictment for a battery (28). In civil cases the accident must have been inevitable in order to operate as an excuse (29). Lawful chastisement -self-defence-amicable contest.If a parent in a reasonable manner chastise his child; or a master his servant, being actually his servant at the time; or a master his scholar; or a gaoler his prisoner; or a husband his wife; or if one confine his friend who is mad, and bind and beat him; in such circumstances it is no assault (30); but in all cases of chastisement it must, in order to be justifiable, appear to have been reasonable (31). A mayhem may even be justified by an officer of the army, if done for disobedience of orders (32). That the alleged battery was in self-defence, will be a justification even of a wounding or mayhem (33); and if A. lift up his staff or stick and offer to strike B., the latter need not wait until he is struck, in order to justify his striking A. (34). But in all cases it depends on the circumstances, and is therefore matter of evidence, whether the battery, or as it may be, was in proportion to the original assault (35). A husband may justify a battery in defence of his wife (36); a parent of his child (37); a master of his servant (38); and the converse as to each of these

(27) Moor. 864; Hob. 134; and see R. v. Gill, 1 Str. 490.

(28) Arch. 8 ed. 440.

(29) 2 Ro. Abr. 548 (G); Hob. 134; Moor. 864; and see Str. 596.

(30) 1 Hawk. c. 20, s. 3; Com. Dig. Pleader 3 M. 13.

(31) 1 East, P. C. 406.

(32) Lane v. Degberg, Bull, N. P. 19. (33) 1 Sid. 246; 1 Ro. Rep. 19; 2 Salk. 642; 3 Salk. 46.

(34) B. N. P. 18; see Anon. 2 Lew. C. C. 48.

(35) B. N. P. 18; see Weaver v. Bush, 8 T. R. 78; 1 Russ. 609.

(36) So a wife of her husband, B. N. P. 48; 1 Ld. Raym. 62.

(37) So a child of his parent, B. N. P. 18; 1 Hawk. c. 60. s. 23.

(38) So a servant of his master, 1 Hawk c. 60, ss. 23, 24; and see Tickell v. Read, Lofft. 215; but contra has been said; see 1 Ld. Raym. 62;

Salk. 407; B. N. P. 18. A servant cannot justify an assault in defence of

EVIDENCE.

Prove the imprisonment: it is for the defendant to justify his act if proof of the imprisonment fails, prove the assault and battery, as ante, p. 31. Arch. 12 ed. 553.

As to what a defendant may show, to prove the imprisonment lawful, see Arch. 454-5-6 & 7.

OBSERVATIONS.

An unlawful imprisonment is an assault (a). Every confinement of the person is an imprisonment, whether it be in a common prison or a private house, or in the stocks, or by forcibly detaining in the public streets (b). Though a party goes willingly at the desire of a constable, on being shown a magistrate's warrant, this is an imprisonment (c); otherwise, if the warrant is used only as a summons, and the party goes voluntarily (d). Where a man who had an idiot brother bed-ridden in his house, kept him in a dark room, without sufficient warmth or clothing; this was held not to be an imprisonment (e).

Prec. of Indict. Arch. 553.

(a) 1 Hawk, c. 62, s. 1.

(b) 2 Inst. 389; Cro. Car 210; Com. Dig. Imprisonment (G).

(c) Chinn v. Morris, 2 C. & P. 361;

Pocock v. Moore. 1 R. & M. N. P. 321.

(d) 2 N. R. 211; 1 R. & M. N. P. 26; 6 B. & C. 528.

(e) Smith's case, 2 C. & P. 449.

relations (39). But a tenant cannot justify an assault in defence of his landlord (40). Any of these defences however may be answered by showing that the first assault was justifiable (41). An injury received in playing at any lawful sport (42) by consent, is not a battery (43). Fighting being unlawful, it is no defence to an action for assault and battery that plaintiff and defendant fought by consent (44). As to injuries to third persons in playing games, see ante, p. 31, n. Interference to prevent breach of peace-execution of process by officers -defence of possession.]—As in order to suppress a riot, or to prevent a felony, or breach of the peace, any one may lawfully interfere between the parties, an assault in so doing may be justified: as if one force a sword from another who offers to kill a third therewith, or gently lay his hands upon another, thereby staying him from inciting a dog against a third person (45); or to prevent another rescuing goods taken in execution (46). It has been shown how particular relations between parties justifies interference (47). A battery may be justified as being done in the arrest of the prosecutor, by virtue of a certain writ of process (48) but an officer can only justify laying his hand upon a man (49), unless he resist, or an attempt be made to rescue him (50); and even then no greater degree of force may be used than is necessary to secure the party, or the officer will be answerable for the excess. So also as to peace-officers (51), and persons acting in their aid, arresting on suspicion of felony without a warrant ; and as to private persons arresting for felonies committed in their

his master's son, 1 Hawk. c. 60, s. 24; 1 Russ. 609.

(39) 2 Ro. Abr. 546 (D).

(40) Leward v. Baseley, 1 Ld. Raym. 62.

(41) Com. Dig. Pleader, 3 M. 15; 1 Salk. 407; Carth. 280.

(42) As to what are lawful sports, see Rosc. Cr. Ev. 2 ed. 682, et seq.

(43) Com. Dig. Pleader, 3 M. 18; B. N. P. 15; 1 Hawk. c. 60, s. 6. (4) Beulter v. Clarke, B. N. P. 16. (45) 1 Hawk. c. 60, s. 23; 1 Russ.

608; Com. Dig. Pleader, 3 M. 16; see 1 C. M. & R. 757.

(46) 3 Lev. 113; see 2 Ro. Abr. 546, 1. 40.

(47) Ante, p. 32, n.

(48) 2 Ro. Abr. 546 (A). But such officer must have a writ or warrant ; Harrison v. Hodgson, 10 B. & C. 445. (49) Id.

(50) 1 Ld. Raym. 229; 2 Str. 1049; see Levy v. Edwards, 1 C. & P. 40.

(51) See Levy v. Edwards, 1 C. & P. 40; Imason v. Cope, 5 C. & P. 193.

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presence (52). A coroner (53), and a magistrate upon a preliminary inquiry (54), may justify a forcible exclusion of a party from the justice-room, even though he be the attorney of the accused party. If, however, the inquiry be final, and of a judicial nature, all persons have a right to be present (55). A battery in defence of a man's possession; as, if a man remove the prosecutor out of his house or close (56); or prevent him from entering it (57); or restrain him from taking or destroying his goods (58); or the goods of another delivered to him to be kept (59); or from taking or rescuing cattle in his custody upon a distress (60); in all these cases, or the like, is a justification of an assault. In order to this,

(52) See Arch. 8 ed. 425.

(53) Garnett v. Ferrand, 6 B. & C. 611.

(54) Cox v. Coleridge, 1 B. & C. 37. (55) Daubney v. Cooper, 10 B. & C. 237; see 6 & 7 Wm. IV. c. 114, s. 2. (56) Lutw. 1455; Hard. 358.

(57) 2 Ro. Abr. 548, 1. 25; Mabel's case 9 C. & P. 474.

(58) 2 Ro. Abr. 549, 1. 7.

(59) 1 Hawk. c. 60, s. 3.

(60) 2 Ro. Abr. 549, 1. 16; 2 Bro. Ent. 253.

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