Of course if the servant or agent were mistaken as to facts, the existence of which would render his act lawful, he would be guilty of no crime, notwithstanding the guilt of the master.138a And if, in a liquor selling case, it appears that the defendant was in fact the agent of the buyer and not of the seller, no liability attaches.138b

196. Partners.

Partners are agents for each other in the conduct of the partnership business, and what has been said, therefore, in the preceding sections, applies where it is sought to hold one partner criminally responsible for the act of his copartner.139

138a Ante, § 68 et seq., 168.

138b Clark & Skyles, Agency, 1321; Maples v. State, 130 Ala. 121, 30 So. 428; Anderson v. State, 32 Fla. 242, 13 So. 435; Black v. State, 112 Ga. 29, 37 S. E. 108; Skidmore v. Com., 22 Ky. L. R. 409, 57 S. W. 468; State v. Taylor, 89 N. C. 577; Treue v. State (Tex. Cr. App.) 44 S. W. 829. Purchase for minor, Bryant v. State, 82 Ala. 51, 2 So. 670. But see Foster v. State, 45 Ark. 361.

139 See Robinson v. State, 38 Ark. 641; Waller v. State, 38 Ark. 656; Whitton v. State, 37 Miss. 379.

CHAPTER VI.

OFFENSES AGAINST THE PERSONS OF INDIVIDUALS.

I. ASSAULTS AND ASSAULT AND BATTERY, §§ 197-220.

VI.

HOMICIDE, §§ 233-288.

A. The Homicide, §§ 233-238.

B. Murder at Common Law, §§ 239-249.

D. Statutory Degrees of Murder, §§ 251-254.

E. Manslaughter, §§ 255-265.

C. Suicide, § 250.

F. Justifiable and Excusable Homicide, §§ 266-288. VII. ABORTION, §§ 289-292.

VIII. RAPE, §§ 293-302.

I. ASSAULTS AND ASSAULT AND BATTERY.

197. In General.-All assaults and assault and battery are misdemeanors at common law. In some jurisdictions aggravated assaults are made felonies.

1. An assault is an attempt or offer, with unlawful force or violence, to do a corporal hurt to another.

2. A battery is the actual doing of any unlawful corporal hurt, however slight, to another.

3. Aggravated assaults, as distinguished from common or simple assault, are assaults accompanied by aggravating circumstances, as assaults with intent to kill, to do great bodily harm, to rape, to rob, etc., and assault with a deadly weapon.

To constitute an assault there must be an attempt or offer, with force and violence, to inflict unlawful corporal injury. And therefore

1. There must be an act, and not mere menace, which, if not interrupted or diverted, will apparently result in injury.

2. There must be an actual or apparent intention to inflict

injury.

3. The intent must be to inflict a corporal injury.

4. In some jurisdictions there must be a present ability to inflict the injury, while in others an apparent ability is sufficient.

5. Consent of the person against or upon whom the violence is attempted or done is a defense, if the consent is real, and if the injury is one to which he may consent, but not otherwise.

6. The violence or force attempted or done must be unlawful. And therefore it is not an assault nor an assault and battery if the force is justifiable, as where it is applied in pursuance of lawful public or domestic authority, as where an officer makes a lawful arrest or lawfully detains or controls a person in his custody, or a parent or teacher moderately corrects his child or pupil, or where it is applied in necessary and reasonable defense of one's person or property.

198. The Act Constituting an Assault.

"An assault," says Hawkins, "is an attempt or offer, with force and violence, to do a corporal hurt to another; as, by striking at him with or without a weapon, or presenting a gun at him at such a distance, to which the gun will carry, or pointing a pitchfork at him standing within reach of it, or by holding up one's fist at him, or by any other such-like act done in an angry, threatening manner."

11 Hawk. P. C. c. 15, § 1, Beale's Cas. 420, Mikell's Cas. 505; State v. Davis, 1 Ired. (N. C.) 125, 35 Am. Dec. 735. And see Tarver v. State, 43 Ala. 354; People v. Lilley, 43 Mich. 521, 5 N. W. 982; Hays v. People, 1 Hill (N. Y.) 351.

In other words, an assault is an attempt to commit a battery. As we have seen, to constitute an attempt, there must be something more than mere intention or preparation. There must be some overt act done in pursuance of the intent.2

It is well settled, therefore, that no mere threatening or abusive language can of itself amount to an assault. "Notwithstanding many ancient opinions to the contrary, it seems agreed at this day that no words whatsoever can amount to an assault." Neither will an insulting gesture of itself constitute an assault.3a

In practice it is very difficult to draw the line between violence merely menaced and an assault, and the decisions cannot all be reconciled. It was said by the North Carolina court that where an unequivocal purpose of violence is accompanied by any act which, if not stopped or diverted, will be followed by personal injury, the execution of the purpose is then begun, the battery is attempted, and there is an assault. And it is safe to say that any act which will come within this statement is an assault. Mere preparation is not enough, as the drawing of a

2 Ante, §§ 122, 123.

31 Hawk. P. C. c. 15, § 1, Beale's Cas. 420, Mikell's Cas. 505; People v. Yslas, 27 Cal. 630; Chapman v. State, 78 Ala. 463, 56 Am. Rep. 42; State v. Mooney, Phil. (N. C.) 434; State v. Neely, 74 N. C. 425, 21 Am. Rep. 496; People v. Lilley, 43 Mich. 521, 5 N. W. 982; Berkeley v. Com., 88 Va. 1017, 14 S. E. 916; Smith v. State, 39 Miss. 521.

This rule does not prevent the indictment as a principal of one who, by words only, incites another to commit an assault and battery. State v. Lymburn, 1 Brev. (S. C.) 397, 2 Am. Dec. 669.

3a Making "kissing sign" at a woman. Fuller v. State, 44 Tex. Cr. R. 463, 72 S. W. 184, 100 Am. St. Rep. 871.

4 State v. Davis, 1 Ired. (N. C.) 125, 35 Am. Dec. 735; State v. Reavis, 113 N. C. 677, 18 S. E. 388.

5 State v. Sims, 3 Strob. (S. C.) 137, Mikell's Cas. 509; State v. Vannoy, 65 N. C. 532; State v. Dooley, 121 Mo. 591, 26 S. W. 558.

It is an assault to fire a gun over the heads of a congregation of people. Malone v. State, 77 Miss. 812, 26 So. 968.

C. & M. Crimes-18.

weapon, without presenting it or making any offer or attempt to use it. It is otherwise if the weapon is presented. It is not necessary, in order to constitute an assault, that the assailant shall get near enough to inflict a battery. Thus, intentionally riding after a person in such a way as to compel him to retreat and seek shelter so as to avoid injury is an assault. And it is an assault for a person to advance upon another in a menacing manner, with intent to strike him, though, before he is near enough to strike, he may be knocked down or stopped by the other or by a third person, or though the other may go away to escape.9

199. Battery.

Any unlawful injury whatsoever, however slight, actually done to the person of another, directly or indirectly, in an angry, revengeful, rude, or insolent manner, is a battery.10 Every battery includes an assault, so that on an indictment for assault and battery one may be convicted of an assault only.11

6 Lawson v. State, 30 Ala. 14. But see People v. McMakin, 8 Cal. 547. 7 State v. Dooley, 121 Mo. 591, 26 S. W. 558; Hariston v. State, 54 Miss. 689, 28 Am. Rep. 392.

Picking up a stone at a distance of twenty yards from a person, without making any offer or attempt to throw it, is not an assault. Brown v. State, 95 Ga. 481, 20 S. E. 495.

8 Mortin v. Shoppee, 3 Car. & P. 373.

9 Stephens v. Myers, 4 Car. & P. 349; People v. Yslas, 27 Cal. 630; State v. Davis, Ired. (N. C.) 125, 35 Am. Dec. 735; State v. Rawles, 65 N. C. 334; State v. Vannoy, 65 N. C. 532; State v. Shipman, 81 N. C. 513; State v. Martin, 85 N. C. 508, 39 Am. Rep. 711; Thomas v. State, 99 Ga. 38, 26 S. E. 748.

In State v. Rawles, supra, where a person was at a place where he had a right to be, and four other persons, with a pitchfork, gun, etc., by following him, and using threatening and insulting language, put him in fear, and induced him to go home sooner than he would otherwise have gone, and in a different way, it was held that they were guilty of an assault.

10 1 Hawk. P. C. c. 15, § 2, Beale's Cas. 420, Mikell's Cas. 505.