§ 56. The evidence of ownership must correspond with the allegation in the indictment, or it will be fatal. If the indictment charges the burning of an out-house, it is proved by evidence of the burning of such a building, though for some purposes it were part of the dwelling-house.2 If the offence be laid to have been done in the night time, this allegation needs not be proved, if the indictment is at common law; for it is not material, unless made so by statute. Actual participa tion in the crime may be shown by the guilty possession of goods, proved to have been in the house at the time of the act done, even though such possession may amount to another felony.4 1 Rex v. Rickman, 2 East, P. C. 1034; Rex v. Pedley, Id. 1026; The People v. Stater, 5 Hill, N. Y. Rep. 401; Commonwealth v. Wade, 17 Pick. 395; Supra, § 10; Ante, Vol. 1, § 65. 2 Rex v. North, 2 East, P. C. 1021, 1022. 3 Rex v. Minton, 2 East, P. C. 1021. 4 Rex v. Rickman, 2 East, P. C. 1034; Supra, § 31, 32, 33. ASSAULT. § 58. THE indictment for a common assault charges that the offender, at such a time and place, "with force and arms, in and upon one C. D., in the peace of this (State or Commonwealth,) then and there being, an assault did make, and him the said C. D. then and there did beat, wound, and illtreat, and other wrongs to the said C. D. then and there did, against the peace," &c. If there are circumstances of aggravation, not amounting to a distinct offence, they are alleged before the alia enormia. § 59. An assault is defined, by writers on criminal law, to be an intentional attempt, by force, to do an injury to the person of another.1 This allegation, therefore, is proved by evidence of striking at another, with or without a weapon, and whether the aim be missed or not; or of drawing a sword upon him; or of throwing any missile at him; or of presenting a gun or pistol at him; the person assaulted being within probable reach of the weapon or missile.2 So, if one rushes upon another or pursues him with intent to strike, and in a threatening attitude, but is stopped immediately before he was within reach of the person aimed at, it is an assault.3 Whether it be an assault, to present a gun or pistol, not loaded, but doing it in a manner to terrify the person aimed 1 Whart. Am. Crim. L. p. 460; 1 Russ. on Crim. 750. And see ante, Vol. 2, § 82. 2 1 Russ. on Crim. 750; 1 Hawk. P. C. ch. 62, § 1; U. States v. Hand, 2 Wash. C. C. Rep. 435. 3 Stephen v. Myers, 4 C. & P. 349. So, if the distance be such as to put a man of ordinary firmness under the apprehension of a blow. The State v. Davis, 1 Ired. 125. See further, ante, Vol. 2, § 82, 84. at, is a point upon which learned judges have differed in opinion. So, an assault is proved, by evidence of indecent liberties taken with a female, if it be without her consent; and such consent a child under ten years of age is incapable of giving; but above that age she may be capable.3 So, if possession of a married woman's person is indecently and fraudulently obtained in the night, by one falsely assuming to be her husband, it is an assault; and her submission, under such mistake, is no evidence of consent. It is the same, if a medical man indecently remove the garments from the person of a female patient, under the false and fraudulent pretence that he cannot otherwise judge of the cause of her illness.5 So, if a school-master take indecent liberties with the person of a female scholar, without her consent, though she do not resist, it is an assault. So, to cut off the hair of a pauper in an almshouse, against her consent, though under a rule of the house, is an assault; the rule being illegal; and if it be done with intent to degrade her, and not for the sake of personal cleanliness, it is an aggravation of the offence. Evidence that the party knowingly put into another's food a 1 In Regina v. St. George, 9 C. & P. 483, Parke, B. held it to be an assault. So it was held in The State v. Smith, 2 Humph. 457. And see 3 Sm. & Marsh. 553; The State v. Benedict, 11 Verm. 236. But see, contra, Blake v. Barnard, 9 C. & P. 626. See also, Regina v. Baker, 1 C. & K. 254; Regina v. James, Id. 530, which, however, were cases upon the statute of 1 Vict. c. 85, § 3. 2 Regina v. Banks, 8 C. & P. 574; Regina v. Day, 9 C. & P. 722. There is a difference between consent and submission; every consent involves submission; but it by no means follows that a mere submission involves consent. It would be too much to say that an adult, submitting quietly to an outrage of this description, was not consenting; on the other hand, the mere submission of a child, when in the power of a strong man, and most probably acted upon by fear, can by no means be taken to be such a consent as will justify the prisoner in point of law. Ibid. per Coleridge, J. 3 Regina v. Meredith, 8 C. & P. 589; Regina v. Martin, 9 C. & P. 213. 4 Regina v. Saunders, 8 C. & P. 265; Regina v. Williams, Id. 286; Rex v. Jackson, R. & Ry. 487. 5 Rex v. Rosinski, 1 Mood. C. C. 12; 1 Russ. on Crim. 606. * Rex v. Nichol, Rus. & Ry. C. C. 130; Regina v. Day, 9 C. & P. 722. 7 Forde v. Skinner, 4 C. & P. 239. deleterious drug, to cause him to take it, and it be taken, is sufficient to support the charge of an assault.1 § 60. A battery is committed whenever the violence menaced in an assault, is actually done, though in ever so small a degree, upon the person. Every battery, therefore, includes an assault, though an assault does not necessarily imply a battery. But in treating of this offence, no further notice needs be taken of this distinction, as its effect, ordinarily, is only upon the degree of punishment to be inflicted. § 61. It is to be observed, that although an unintentional injury, done with force to the person of another, may support a civil action of trespass for damages; 2 yet to constitute the criminal offence of an assault, the intention to do injury is essential to be proved. If, therefore, though the attitude be threatening, it is so explained by the simultaneous language as to negative any present intention to do harm, as for example, that he would strike, if it were not assize-time," or, "if he were not an old man," or the like, it is not an assault. Though it is difficult in practice to draw the precise line which separates violence menaced from violence actually commenced, yet the rule seems to be this, that where the purpose of violence is accompanied by an act which, if not prevented, would cause personal injury, the violence is begun, and of course the offence is committed.5 And it seems not to be necessary that the violence should be menaced absolutely; it may be conditionally threatened; for if one raise a weapon against another, within striking distance, threatening to strike unless the other performs a certain act, which he there 1 Regina v. Button, 8 C. & P. 660. 2 See ante, Vol. 2, § 94. 3 Anon.; 1 Mod. 3; Turbeville v. Savage, 2 Keb. 545. 4 Commonwealth v. Eyre, 1 S. & R. 347; The State v. Crow, 1 Ired. 375. And see Ante, Vol. 2, § 83. 5 The State v. Davis, 1 Ired. 128. upon performs, and so the violence purposed is not actually inflicted; it is nevertheless an assault.1 § 62. The intention to do harm is negatived by evidence that the injury was the result of mere accident; as, if one soldier hurts another by the discharge of his musket in military exercise; or, if one's horse, being rendered ungovernable by sudden fright, runs against a man; 3 or, if a thing which one is handling in the course of his employment be carried by the force of the wind against another man, to his hurt. But in these cases, as we have heretofore shown in civil actions, it must appear that the act in which the defendant was engaged was lawful, and the necessity or accident inevitable and without his fault. If the act were done by consent, in a lawful athletic sport or game, not dangerous in its tendency, it is not an assault; but if it were done in an unlawful sport, as a boxing match, or prize-fight, it is otherwise.6 § 63. The criminality of this charge may also be disproved by evidence showing that the act was lawful; as, if a parent in a reasonable manner corrects his child; or, a master his apprentice; or, a schoolmaster his scholar; or if one, having the care of an imbecile or insane person, confines him by force; or, if any one restrains a madman; in these, and the like cases, it is not a criminal assault. So, if a shipmaster corrects a seaman for negligence or misconduct in any matter relating to his duty as one of the ship's crew, or tending directly to 1 The State v. Morgan, 3 Ired. 186. 2 Weaver v. Ward, Hob. 134. 3 Gibbons v. Pepper, 4 Mod. 405. 4 Rex v. Gill, 1 Stra. 190. 5 Dickenson v. Watson, T. Jones, 205; 1 Russ. on Crim. 754. See ante, Vol. 2, 85, 94, and cases there cited. 6 See ante, Vol. 2, § 85, and cases there cited; 1 Russ. on Crim. 753. 7 Hawk. P. C. b. 1, ch. 30, sec. 23. And see ante, Vol. 2, § 97; 1 Russ. on Crim. 755. |