if one strikes at one person and unintentionally injures another, he is guilty of assault and battery upon the person injured.33 It is not even necessary that there shall be an intent to injure any particular person. If one throws a firecracker or shoots into a crowd, and injures any one of the crowd, it is an assault and battery.34

The act must be malum in se, and not merely malum prohibitum. Therefore, one who drives over another unintentionally is not guilty of a criminal assault and battery, apart from any question of negligence, merely because he is driving at a speed prohibited by a city ordinance.35

206. Ability to Commit a Battery.

Whether, to constitute a criminal assault, there must be an actual present ability to inflict a battery, or whether an apparent ability is sufficient, is a question upon which the courts have differed. The cases cannot possibly be reconciled. In England some of the judges have held that a present actual ability to inflict a battery is necessary to render an assault criminal, though an apparent ability may give rise to an action for damages.36 And this doctrine has been recognized by some of the courts in this country.37

33 McGehee v. State, 62 Miss. 772, 52 Am. Rep. 209; Callahan v. State, 21 Ohio St. 306.

34 Scott v. Shepherd, 2 W. Bl. 892, 3 Wils. 403 (the famous squib case, where a squib was thrown in the market place, and being thrown off by various persons, finally struck a person in the eye); Conway v. Reed, 66 Mo. 346, 27 Am. Rep. 354; Dunaway v. People, 110 Ill. 333, 51 Am. Rep. 686; Vandermark v. People, 47 Ill. 122; State v. Meadows, 18 W. Va. 658; Callahan v. State, 21 Ohio St. 306.

35 Com. v. Adams, 114 Mass. 323, 19 Am. Rep. 362, Beale's Cas. 204, Mikell's Cas. 160.

36 Blake v. Barnard, 9 Car. & P. 626; Reg. v. James, 1 Car. & K. 530. 37 Chapman v. State, 78 Ala. 463, 56 Am. Rep. 42; Lawson v. State, 30 Ala. 14; State v. Sears, 86 Mo. 169; State v. Godfrey, 17 Or. 300, 20 Pac. 625, 11 Am. St. Rep. 830; State v. Napper, 6 Nev. 113. Compare

Thus, it has been held that aiming an unloaded gun at another, who believes it to be loaded, within the distance the gun would carry if loaded, and in such a manner as to terrify the other, is not a criminal assault.38

This doctrine, however, has been repudiated by some of the English judges, and by most of the courts and commentators in this country, and it may be regarded as settled in most jurisdictions that a present apparent ability to inflict a battery is sufficient to render an assault criminal, and that actual ability is not necessary.39

According to this view it is an assault to present a gun or pistol at another within shooting distance, though it may not be loaded, or may be loaded with powder only.40

In Texas it was formerly held that an actual present ability

Balkum v. State, 40 Ala. 671; Mullen v. State, 45 Ala. 43, 6 Am. Rep. 691.

38 Chapman v. State, 78 Ala. 463, 56 Am. Rep. 42; Klein v. State, 9 Ind. App. 365, 36 N. E. 763, 53 Am. St. Rep. 354; and other cases above cited.

39 Reg. v. St. George, 9 Car. & P. 483; Com. v. White, 110 Mass. 407, Beale's Cas. 450; Kunkle v. State, 32 Ind. 220; Crumbley v. State, 61 Ga. 582; State v. Martin, 85 N. C. 508, 39 Am. Rep. 711; State v. Shepard, 10 Iowa, 126; Keefe v. State, 19 Ark. 190; State v. Smith, 2 Humph. (Tenn.) 457; State v. Sears, 86 Mo. 169; People v. Lee Kong, 95 Cal. 666, 30 Pac. 800, 29 Am. St. Rep. 165, Beale's Cas. 142; ante, §§ 127, 128.

For a person to shoot at a place in the roof of a house where he supposes a policeman is concealed and watching him is an assault with intent to kill, though the policeman may be at another place on the roof. People v. Lee Kong, supra.

If there be such a demonstration of violence, coupled with an ap parent ability to inflict the injury, so as to cause the person at whom it is directed reasonably to fear the injury unless he retreat to secure his safety, and under such circumstances he is compelled to retreat to avoid an impending danger, the assault is complete, though the assailant may never have been within actual striking distance of the person assailed. Thomas v. State, 99 Ga. 38, 26 S. E. 748.

40 State v. Archer, 8 Kan. App. 737, 54 Pac. 927, and cases cited in the two notes preceding.

to inflict the injury was necessary, but this is no longer the

case. 42

The cases requiring actual ability seem to proceed upon the theory that an act does not become criminal merely because it puts another in fear, or because it tends to cause a breach of the peace;43 but it is well settled at common law that any unjustifiable and inexcusable act is indictable if it tends directly to cause a breach of the public peace. 43a It is on this principle that acts of malicious mischief and libels on private individuals are punished as misdemeanors at common law.11

In some states the statutes defining and punishing assaults set the question at rest by expressly requiring actual ability to inflict a battery, and an apparent ability is not enough.45

In all jurisdictions there must at least be an apparent present ability to inflict the injury. To raise a stick or present a pistol at another at such a distance that it clearly could not injure would not be an assault.46

207. Aggravated Assaults-In General.

An assault with intent to kill, to do great bodily harm, to rape, to rob, etc., is called an aggravated assault, as distinguished from a common assault, because the assault is aggravated by the concurrence of the felonious intent with which it is made. At common law aggravated assaults were punished more severely than common assault, but they were not recog nized as distinct technical offenses. All assaults were merely

41 Robinson v. State, 31 Tex. 170; McKay v. State, 44 Tex. 43. 42 Kief v. State, 10 Tex. App. 286; Atterberry v. State, 33 Tex. Cr. R. 88, 25 S. W. 125.

43 Chapman v. State, 78 Ala. 463, 56 Am. Rep. 42.

43a Post, § 417.

44 Ante, § 25; post, §§ 428-429.

45 Pratt v. State, 49 Ark. 179, 4 S. W. 785.

46 See Reg. v. St. George, 9 Car. & P. 483; Tarver v. State, 43 Ala. 354; Howard v. State, 67 Ind. 401; Jarnigan v. State, 6 Tex. App. 465; People v. McMakin, 8 Cal. 547; ante, §§ 127, 128.

misdemeanors. In most jurisdictions statutes have been enacted specifically punishing aggravated assaults, and in many jurisdictions they are made felonies.47

208. Specific Intent.

To constitute an assault with intent to murder, to kill, to rob, to rape, to do great bodily harm, etc., the specific intent is essential. A person is not guilty of assault with intent to kill, for instance, unless he actually intends to kill.48 The fact that the killing would be murder is not enough, for there may be murder without any intent to kill.49 To constitute an assault with intent to murder the specific intent is necessary.5 The circumstances must be such that, if death should result, the homicide would be murder,51 and, in addition to this, there must be the specific intent to murder.52

50

47 See Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1, Mikell's Cas. 345; Norton v. State, 14 Tex. 387; Bowden v. State, 2 Tex. App. 56.

48 State v. Reed, 40 Vt. 603; Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1, Mikell's Cas. 345; Chrisman v. State, 54 Ark. 283, 15 S. W. 889, 26 Am. St. Rep. 44; Hamilton v. People, 113 Ill. 34, 55 Am. Rep. 396; Rex v. Duffin, Russ. & R. 365, Mikell's Cas. 167, and cases cited in the notes following.

It is not necessary to show that the killing would be murder. It is sufficient if it would be voluntary manslaughter. State v. Reed, supra; Hall v. State, 9 Fla. 203, 76 Am. Dec. 617; Ex parte Brown, 40 Fed. 81. 49 Post, § 242 et seq.

50 Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1, Mikell's Cas. 345; Ogletree v. State, 28 Ala. 693; State v. White, 41 Iowa, 316, 20 Am. Rep. 602; Slatterly v. People, 58 N. Y. 354; Hamilton v. People, 113 Ill. 34, 55 Am. Rep. 396; Hayes v. State, 14 Tex. App. 330; Roberts v. People, 19 Mich. 401.

51 Meredith v. State, 60 Ala. 441; Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1, Mikell's Cas. 345; McCormack v. State, 102 Ala. 156, 15 So. 438; State v. Connor, 59 Iowa, 357, 13 N. W. 327, 44 Am. Rep. 686; Slatterly v. People, 58 N. Y. 354; Rumsey v. People, 19 N. Y. 41; Lacefield v. State, 34 Ark. 275, 36 Am. Rep. 8; People v. Scott, 6 Mich. 287; People v. Prague, 72 Mich. 178, 40 N. W. 243; Hopkinson v. People, 18 Ill. 264; Beckwith v. People, 26 Ill. 500; Hamilton v. People, 113 Ill. 34, 55

An assault is not assault with intent to murder if the actual killing would be manslaughter only.53 To support an indictment for maliciously shooting at another with intent to kill him, the proof must show the intent to kill the person shot at.53a A specific intent to rape is essential to an assault with intent to rape. To constitute rape the intercourse must, as a rule, be by force and against the will of the woman,54 and therefore a man is not guilty of assault with intent to rape unless he intends to have connection by force and against her will.55

In some states the statute specifically punishes assault with intent to maim, or disable, or do great or grievous bodily harm, etc. Here, also, the specific intent is essential. In an Eng

Am. Rep. 396; Elliott v. State, 46 Ga. 159; Hayes v. State, 14 Tex. App. 330; Wilson v. State, 4 Tex. App. 637; State v. Nichols, 8 Conn. 496. Sending infernal machine held an assault with intent to murder. State v. Hoot, 120 Iowa, 238, 94 N. W. 564, 98 Am. St. Rep. 352.

52 Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1, Mikell's Cas. 345; People v. Mize, 80 Cal. 41, 22 Pac. 80.

One who points a pistol within shooting distance at another, who is attempting to stop his team, and threatens to shoot if he does not desist, is guilty of an assault, but not of assault with intent to murder. Hairston v. State, 54 Miss. 689, 28 Am. Rep. 392.

53 Beckwith v. People, 26 Ill. 500; State v. Connor, 59 Iowa, 357, 13 N. W. 327, 44 Am. Rep. 686; People v. Prague, 72 Mich. 178, 40 N. W. 243; Wilson v. State, 4 Tex. App. 637; and other cases cited in note 51, supra.

53a Where defendant mistook the person shot at for another, whom he intended to kill, the offense is not made out. Rex v. Holt, 7 Car. & P. 518, Mikell's Cas. 169. Cf. Reg. v. Ryan, 2 Moody & R. 213 (laying poison taken up by person not intended); and Reg. v. Stopford, 11 Cox, C. C. 643. See ante, p. 94, n. 64a.

54 Post, § 293.

55 Rex v. Lloyd, 7 Car. & P. 318; Com. v. Fields, 4 Leigh (Va.) 648; Com. v. Merrill, 14 Gray (Mass.) 415, 77 Am. Dec. 336; State v. Kendall, 73 Iowa, 255, 34 N. W. 843, 5 Am. St. Rep. 679; Jones v. State, 90 Ala. 628, 8 So. 383, 24 Am. St. Rep. 850; Taylor v. State, 22 Tex. App. 529, 3 S. W. 753, 58 Am. Rep. 656; Shields v. State, 32 Tex. Cr. R. 498, 23 S. W. 893; State v. Massey, 86 N. C. 658, 41 Am. Rep. 478; People v. Manchego, 80 Cal. 306, 22 Pac. 223.