CHAPTER V. TORTS TO THE PERSON.-ASSAULT AND BATTERY. 1. Different classes of torts; to the person. 3. Assault and battery. 4. Definition of assault. 6. A question of law. 7. Instances of assault. 9. Definition and examples of battery. 10. Defences; self defence; son assault demesne; defence of property; service of legal process, &c. 14. Excess of force not justifiable. 8. Assault and battery; proof of as- De injuria sua propria. sault alone. 16. Pleading; evidence; damages, &c. 1. HAVING now completed our introductory view of torts in general, we proceed to consider them more in detail, as divided into specific wrongs or injuries, committed against the various rights which the law recognizes and protects. 2. The plainest and simplest legal rights are those of the person. A man owns his body and limbs more unquestionably and unqualifiedly than his stock in trade or his farm. While the latter may be the subjects of mere qualified ownership, and involved in complicated and conflicting claims of title; the former belong absolutely to the individual, and to him alone. Hence torts to the person claim our first notice. 3. An injury to the person is termed in law a trespass, or more commonly an assault, or assault and battery. 4. An assault, insultus, is defined to be "an unlawful setting upon one's person;"1 or a threat of violence exhibiting an intention to assault, and a present ability to carry the same into execution.2 (a) 1 Finch's Law, 202. See Hays v. C. B. 850; 2 Greenl. Ev. § 82; 1 Steph. The People, 1 Hill, 351. 2 Per Jervis, C. J., Read v. Coker, 13 N. P. 208. (a) The Cornelian law de injuriis prohibited pulsation as well as verberg 5. Mere threats of violence are not sufficient to constitute an assault.1 It is said by an English Judge,2 "I own I have considerable doubt whether any mere threat, not in the slightest degree executed, that is, a person saying to another, 'if you do not move, I shall use such and such force,' is an assault. My impression is, that it is not. I do not know at what distance it is necessary for the party to be. No doubt, if you direct a weapon, or if you raise your fist within those limits which give you the means of striking, that may be an assault; but if you simply say, at such a distance as that at which you cannot commit an assault, I will commit an assault,' I think that is not an assault." 6. The question what constitutes an assault is a question of law, to be determined by the Court. Hence prayers, requiring the jury to decide what is an assault, are erroneous.3 (a) 1 Stephens v. Myers, 4 C. & P. 349. 2 Pollock, C. B., Cobbett v. Grey, 4 Exch. 744. 8 Handy v. Johnson, 5 Md. 450. tion; the latter being characterized as accompanied with pain. 3 Bl. Comm. 120; Ff. 47, 10, 5. The word percussit implies an assault. Young v. Slaughterford, 11 Mod. 229. It is not essential to constitute an assault, that there should be a direct attempt at violence. Hays v. The People, 1 Hill, 351. (a) And the same rule applies to an alleged justification of an assault. This also is a question of law. But the alleged facts upon which it is based must be left to the jury, and not decided by the Court. Thus, upon an indictment for an assault and battery, by firing a pistol bullet at the prosecutor, evidence having been introduced on the part of the government, tending to prove the offence as charged; the defendant introduced evidence tending to prove that the prosecutor was at the front door of the defendant's house, committing an offensive nuisance; that the defendant ordered him to go away, which he refused to do; that the defendant thereupon beat the prosecutor with the handle of a broom, until the same was broken, when the defendant thrust at him with one of the pieces; and that the defendant then went back into his house, and returned with a pistol, but did not discharge it. The jury having been instructed " that the facts proved were no justification of the assault and battery," held, the instruction was erroneous; and the facts should have been submitted to the jury, with instructions as to what would and what would not amount to a justification. Commonwealth Goodwin, 3 Cush. 154. So it is held, that the Judge may properly express an opinion as to the evidence tending to prove the alleged assault. Thus the Judge charged the jury, that, if the defendant threatened to whip the plaintiff out of the county, and the plaintiff was afterwards whipped, it would, in the absence of exculpatory evidence, be a strong presumption against him; but if he had only expressed the opinion, that he ought to be whipped out of the county, it would not be so strong a circumstance. Held, there was no error in this charge.1 7. Many familiar illustrations are found in the books, of what constitutes an assault. Thus presenting a gun in an angry and excited manner at another has been held an assault, whether loaded or not, if the plaintiff was ignorant upon that point. So it is an assault, if one ride after another, and oblige him to run to a place of safety, in order to avoid injury. Or throw at him a missile capable of doing hurt, with intent to wound, even if it do not hit. Or advance, in a threatening manner, to strike the plaintiff, so that the blow would in a few seconds have reached him, if the defendant had not been stopped.5 Or take indecent liberties, though not resisted, with a female pupil or patient. (a) So a violent attack upon the horse harnessed to a carriage in which the plaintiff was riding, and striking him with a club, is an assault upon the plaintiff. So upsetting a carriage or chair, in which one is sitting. So the defendant ordered the plaintiff Grigsby v. Moffat, 2 Humph. 487. 2 Beach v. Hancock, 7 Fost. 223; State v. Smith, 2 Humph. 457. Contra, Blake v. Barnard, 9 C. & P. 626. 8 Morton v. Shoppee, 3 C. & P. 373. 4 Ibid. Stephen v. Myers, 4 C. & P. 349. 5 Rex v. Nichol, Russ. & Ry. 130; Rex v. Rosinski, Ry. & M. 19. 7 De Marentille v. Oliver, 1 Penning. 380. 8 Hopper v. Keene, 7 Taunt. 698. (a) Where one decoyed a female under ten years of age into a building, for the purpose of ravishing her, and was there detected while standing within a few feet of her in a state of indecent exposure; held, though there was no evidence of his having touched her, he was properly convicted of an assault with intent to commit a rape. Hays v. The People, 1 Hill, 351. The consent of a female of that age, or even her aiding the prisoner's attempt, is no defence. Ibid. to leave his shop, and, on his refusal, sent for some men, who mustered round the plaintiff, tucked up their sleeves and aprons, and threatened to break his neck if he did not go out, and would have put him out, if he had not gone out. Held, an assault upon the plaintiff. But to stand in another's way, and passively obstruct his progress, as any inanimate object would, though by design, is not an assault.2 Nor, in general, any mere omission; as where a man kept an idiot, bedridden brother in a dark room in his house, without sufficient warmth or clothing. Nor to separate persons fighting. So a declaration, which alleges that the defendant broke and entered a house, and committed an assault on the plaintiff therein, is not proved, as to the assault, by evidence, that the defendant, having a right to immediate possession of the house, entered and forcibly took away the windows of the room, in which the plaintiff was sick in bed, without evidence that the defendant knew that the plaintiff was in the house. So an intent to do harm is essential; and this is a question for the jury, depending on the circumstances of the case. Thus it is no assault, if words are used at the time, showing a purpose not to commit present violence; as where one said, laying his hand on his sword, that if it were not assize-time he would not take such language; or, "Were you not an old man I would knock you down."7 So, where the defendant, the master of a ship, took a pistol, cocked it, and presented it at the head of the plaintiff, saying, if he was not quiet, he would blow out his brains; and, in an action for assault, the declaration alleged, that the defendant assaulted the plaintiff, and presented a pistol at him loaded with gunpowder, ball, and shot, and threatened therewith to shoot him and blow out his brains; held, on the plea of not guilty, that the action was not sustained, if the defendant used words showing an intention not to shoot the plaintiff, nor without proof that 6 1 Read v. Coker, 24 Eng. L. & Eq. 213; 13 Com. B. 850. 2 Innes v. Wylie, 1 Car. & K. 257. 3 Smith's case, 2 C. & P. 449. Griffin v. Parsons, 1 Selw. 25, 26. 5 Meader v. Stone, 7 Met. 147. 6 Bull. N. P. 15. 7 State v. Crow, 1 Ired. L. 376. r the pistol was loaded, as alleged. And it has been held, that, although the jury cannot infer a want of intention to do violence or injury merely from the failure to strike, in the absence of any declaration or other circumstances indicating it; yet, if there are any such declarations or circumstances, the jury are bound to take them into consideration in deciding upon the intention.2 8. An assault and battery is said to be a fighting against the will of the party assailed. And the plaintiff may recover upon a declaration for assault and battery, though the assault only be proved.* 9. A battery is defined, as the actual infliction of violence on the person. Or an unlawful, that is, an angry, rude, insolent, or revengful touching of the person, either by the defendant or any substance put in motion by him. As by spitting upon a person; pushing another against him;8 throwing a squib or any missile or water upon him.9 So striking a horse which a man is riding, whereby he is thrown; 10 or taking hold of his clothes in an angry or insolent manner; 11 or striking the skirt of his coat or a cane in his hand; 12 is a battery battery because anything attached to the person partakes its inviolability.) So it is a direct trespass, to injure the person of another by driving a carriage against the carriage wherein such person is sitting, although the lastmentioned carriage be not the property nor in the possession of the person injured.18 Or to cut off the hair of a pauper in the workhouse, with force, and against his consent.14 Or to put a deleterious drug into coffee, in order that another may take it, if it is actually taken.16 And, in general, it is said, "The least touching of another in anger is a battery. If 1 Blake v. Barnard, 9 C. & P. 626. 4 Bro. Abr. Trespass, pl. 40. 62 Hawk. B. 1, c. 62, § 2. 7 Regina v. Colesworth, 6 Mod. 172. 9 Scott v. Shepherd, 2 W. Bl. 892; Pursell v. Horn. 8 Ad. & El. 605. 10 Dodwell v. Burford, 1 Mod. 24. 11 U. S. v. Ortega, 4 Wash. 534. 12 Respublica v. De Longchamps, 1 Dall. 111. 18 Hopper v. Reeve, 7 Taunt. 698. 14 Forde v. Skinner, 4 C. & P. 239. 15 Button's case, 8 C. & P. 660. し |