personal injury of any kind, by force, such as an attempt to rob, an attempt to commit a rape, an attempt to have connexion with a girl under ten years of age, or the like,-these are also called assaults.

A common assault, to maintain this indictment, may be, by striking at the prosecutor, with or without a weapon;-or presenting a gun at him, at a distance to which the gun will carry, provided it be so loaded that it can be discharged; R. v. James, 1 Car. & K. 530; or pointing a pitchfork at him, whilst standing within the reach of it; or holding up one's fist at him; or by any other rash act, done in an angry or threatening manner. 1 Hawk. c. 62, s. 1. So, riding towards a man, with intent to do him a corporal injury, so that he was obliged to run away to avoid it, was holden by Lord Tenterden, C. J., to be an assault. Martin v. Shoppee, 3 Car & P.373. So, where it was proved that A. advanced in a threatening attitude, with an intention to strike B., so that his blow would immediately have reached B., if he had not been stopped: Tindal, C. J., held that this was an assault in point of law, although it appeared that at the particular moment when A. was stopped, he was not near enough for his blow to take effect. Stephens v. Myers, 4 Car. & P. 349.

A battery is an injury, however trifling, actually done to the person of another, in an angry, revengeful, rude or insolent manner, as by spitting in his face, or in any way touching him in anger, violently jostling him out of the way, or the like. 1 Hawk. c. 62, s. 2.

But it is no battery to lay one's hand gently on another, against whom an officer has a warrant, and to tell the officer this is the man he seeks; 1 Hawk. c. 62, s. 2; or to lay one's hand on a man, if it be necessary to do so, in order to serve him with process. Harrison v. Hodgson, 10 B. & C. 445. Or if a horse, being suddenly frightened, run away with a man, without his fault, and run against and injure another man, this is no assault in the rider, for which even a civil action could be maintained against him. Gibbon v. Pepper, 1 Ld. Raym. 38, 2 Salk. 637.

So, if an officer, having a warrant against a man, who will not suffer himself to be arrested, beat or wound him in an attempt to take him; or if a parent in a reasonable manner chastise his child, or a master his servant, or a schoolmaster his scholar, or a gaoler his prisoner; or if one confine a friend who is insane, and bind or beat him, in such a manner as is proper in his circumstances; or if a man force a sword from one, who threatens to kill another therewith; or if a man gently lay his hand upon another, and thereby stay him from inciting a dog against a third person; or if I beat one (without wounding him or throwing at him a dangerous weapon,) who wrongfully endeavours to dispossess me of my lands or

goods, or the goods of another delivered to me for safe custody, and will not desist upon my laying my hand gently on him and disturbing him; or if a man beat, or (as some say) wound or maim one, who makes an assault upon him, or upon his wife, parent, child or master, especially if it appear that he did all he could to avoid fighting before he gave the wound; or if a man fight with or beat one, who attempts to kill a stranger: -these and the like are not deemed breaches of the peace, 1 Hawk. c. 62, s. 3, and the defendant in such cases may justify the battery, by giving the special circumstances in evidence, under the plea of not guilty. Id. c. 62, s. 3. But if two men go out to fight with their fists, and they strike one another, they are each of them guilty of an assault, and it is immaterial which of them struck the first blow. Per Coleridge, J., in R. v. Lewis, 1 Car. & K. 419. So, where it appeared that the defendant, although he at first struck in his defence, afterwards continued to strike the prosecutor from revenge, after the necessity for it had ceased, he was holden guilty of an assault and battery. R. v. Driscoll, 1 Car. & M. 214. Where an excise officer gave a man a search warrant to look at, who refused to deliver it back to him, and a scuffle ensued on an indictment against the officer for an assault, Ld. Tenterden, C. J., left it to the jury to say, whether the officer had used more force than was necessary to recover possession of the warrant. R. v. Milton, Mo. & M. 107. If a man conduct himself in a disorderly manner in a public house, and upon the landlord's requesting him to depart, he refuse to do so, the landlord is justified in laying hands upon him to put him out. Howell v. Jackson, 6 Car. § P. 723. Moriarty v. Brooks, Id. 684.

20. Assault and doing bodily Harm.

Indictment.

The jurors for our Lady the Queen, upon their

day of

to wit. Soath present, that A. B., on the in the year of our Lord " in and upon one C. D. did make an assault, and him the said C. D. then did beat, [if it be a very aggravated assault, you may state it more specially], and thereby then occasioned unto the said C. D. great actual bodily harm; and other wrongs to the said C. D. then did: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity.

Misdemeanor at common law; fine or imprisonment, or both. And in all cases of assaults" occasioning actual bodily harm," the court, if they order imprisonment, may

order the offender to be kept to hard labour during the whole or any part of the time. 14 & 15 Vict. c. 100, s. 29.

Evidence.

To maintain this indictment, the prosecutor must prove

1. An assault, as in the last case, ante, p. 282.

2. The great bodily harm occasioned by it to the prosecutor. If he fail in proving this, still the defendant may be found guilty of a common assault.

21. Assault with Intent to commit a Felony.

Indictment.

The jurors for our Lady the Queen upon their

to wit. Soath present, that A. B., on the

day of

in the year of our Lord in and upon one C. D. did make an assault, and her the said C. D. did then beat and illtreat, with intent [here state the felony intended, as for instance: with intent "her the said C. D. then violently and against her will, feloniously to ravish and carnally know; "] and other wrongs to the said C. D. then did against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [You may add a count for a common assault, as ante, p. 282.

Misdemeanor; imprisonment with or without hard labour, for not more than two years; and the court may also fine the offender, and require him to find sureties for keeping the peace. 9 G. 4, c. 31, s. 25.

Evidence.

To maintain this indictment, the prosecutor must give the same evidence as if he had indicted the defendant for the felony, some act however not being done, which was necessary to complete the felony. And the felony so described and proved, must be an offence against the person of the prosecutor. Where a girl was delivered of a child, and A. and B., pretending to her that the child was to be taken to a public institution to be nursed, put the child into a bag, hung the bag with the child in it on some park palings at the side of a foot path, and there left it: A. and B. being indicted for an assault with intent to murder, and with a count for a common assault. Tindal, C. J., told the jury that it hardly could be inferred that A. or

B. intended murder, for if they did, a very little difference in packing up the bag would have effected it; the jury therefore found them guilty of the common assault. R. v. March et al., 1 Car. & K. 496.

If the evidence, however, should prove the felony actually completed, still the jury may find the prisoner guilty of the attempt only, as laid in the indictment,-unless the judge, in his discretion, discharge the jury from giving a verdict on this indictment, and order the defendant to be indicted for the felony. 14 & 15 Vict. c. 100, s. 12. If, on the other hand, you prove the assault, but fail in proving the intent, the jury may convict the defendant on the second count, for a common assault.

22. Assaulting a Justice of the Peace, &c., on Account of his preserving Wreck.

to wit.

Indictment.

The jurors for our Lady the Queen, upon their oath present, that at the time of the committing of the offence hereinafter mentioned, to wit, on the - day of

in the year of our Lord, one C. D., then being one of Her Majesty's justices of the peace in and for the county of ["magistrate, officer, or other person lawfully authorized,”] was then engaged in the lawful exercise of his duty as such justice in and concerning the preservation of a certain ship and vessel then wrecked, stranded, and cast on shore [“ any vessel in distress," or (6 any vessel, goods or effects, wrecked, stranded, or cast on shore, or lying under water"], being then thereunto lawfully authorized; and that A. B., then, well knowing the premises, in and upon the said C. D., so being in the lawful exercise of his said duty as aforesaid, did unlawfully make an assault, and him, the said C. D. did then strike and beat ["strike or wound"] on account of the exercise of his the said Č. D.'s said duty as such justice as aforesaid in and concerning the preservation of the said ship and vessel so wrecked, stranded, and cast ashore as aforesaid: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity.

Misdemeanor; transportation for seven years;—or imprisonment, with or without hard labour, for such term as the court shall award. 9 G. 4, c. 31, s. 24.

Evidence.

Justices, constables, &c., and persons called by them to their aid, in case of a shipwreck within their jurisdiction, have

certain duties assigned to them by stat. 12 Ann, st. 2, c. 18, s. 1; and assaulting and striking or wounding them on account of their being so engaged, is punishable with transportation or imprisonment, by stat. 9 G. 4, c. 31, s. 24, as above mentioned. To maintain this indictment, the prosecutor must prove

1. That on the day in question he was a justice of the peace of the county, &c.; it is not necessary to produce the commission, it is sufficient to prove that he then acted and usually acts as such.

2. That there was then a vessel in distress,-or a vessel, goods or effects, wrecked, stranded, or cast on shore, or lying under water-as stated in the indictment; and that he was engaged in his duty as magistrate, in endeavouring to preserve them.

3. That the defendant struck him, as stated in the indictment.

4. And that the defendant did so, on account of the prosecutor's so exercising his duty in endeavouring to preserve the ship or goods. This of course can only be proved from the defendant's words or acts, or from other circumstances from which the jury may fairly infer it.

23. Assaulting Peace Officers or Revenue Officers.

Indictment.

The jurors for our Lady the Queen, upon their oath present, that A. B., on the

day of

to wit. in the year of our Lord in and upon one C. D., (the said C. D. being then a peace officer, to wit, a constable, and in the due execution of his duty as such constable then being," or "the said C. D. being then a revenue officer, to wit, an excise officer, and in the due execution of his duty as such excise officer then being," or "the said C. D. then acting in aid of one E. F., a peace or revenue officer, to wit, a the due execution of his duty as such make an assault, and him the said C. D., so being in the execution of his said duty, then did beat and illtreat; and other wrongs to the said C. D. then did: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [Add a count for a common assault, as ante, p. 282.

in then being) did