BATTERY. Any unlawful beating, or other wrongful physical violence or con straint, inflicted on a human being without his consent. 2 Bishop, Crim. Law, 62; 17 Ala. 540 ; 9 N. H. 491.
2. It must be either wilfully committed, or proceed from want of due care. • Strange; 596 ; Hob. 134; Plowd. 19 ; 3 Wend. N. Y. 391. Hence an injury, be it never so small, done to the person of another in an angry, spite ful, rude, or insolent manner, 9 Pick. Mass, 1, as by spitting in his face, 6 Mod. 172, or on his body, 1 Swint. 597, or any way touching him in anger, 1 Russell, Crimes, 751, or vio lently jostling him, see 4 Hurlst. and N. Exch.. 481, are batteries in the eye of the law. 1 IIawkins, Pl. Cr. 263. See 1 Selwyn, Nisi P. 33. And any thing attached to the person partakes of its inviolability: if, therefore, A strikes a cane in the hands of B, it is a bat tery. 1 Dall. Penn. 114; 1 Penn. 380 ; 1 Hill, So. C. 46 ; 4 Den. N. Y. 453 ; 4 Wash. C. C. 534; 1 Baldw. C. C. 600.
3. A battery may be justified on various accounts.
As a salutary mode of correction: A pa rent may correct his child, a master his ap prentice, a schoolmaster his scholar, 24 Edw. IV.; 4 Gray, Mass. 36 ; 2 Dev. & B'. No. C. 365 ; and a superior officer, one under his command. Keilw. 136 ; Buller, Nisi P. 19; Bee, Adm. 161 ; 1 Bay, So. C. 3 ; 14 Johns. N. Y. 119 ; 15 Mass. 365. And see Cowp. 173; 15 Mass. 347 ; 3 Carr. & K. 142.
As a means of preserving the peace, in the exercise of an office, under process cf court, and in aid of an authority at law. See Aar REST.
4. As a necessary means of defence of the person against the plaintiff's assaults in the following instances: in defence of himself, his wife, 3 Salk. 46, his child, and his servant. Ow. 150. But see 1 Salk. 407. So, likewise, the wife may justify a battery in defending her husband, Ld. Raym. 62; the child its parent, 3 Salk. 46 ; and the servant his ter. In these situations, the party need not wait until a blow bas been given ; for then he might come too late, and be from warding off a second stroke or from , ing the person assailed. Care, however, must
be taken that the Lattery do not exceed the bounds of defence and protection ; for it is only permitted as .a means to avert an impending evil which might otherwise overwhelm the party, and not as a punishment or retaliation for the injurious attempt. Strange, 593 ; 1 Cons. So. C. 34 ; 4 Vt. 60; 4 J. J. Marsh. Ky. 578 ; 2 Bishop, Crim. Law, 561. The degree of force necessary to repel an assault will naturally depend upon, and be proportioned to,• the violence of the assailant ; but with this limitation any degree is justifiable. 1 Ld. Rayne. 177 ; 2 Salk. 642 ; 11 Humphr. Tenn. 200 ; 4 Barb. N. Y. 460; 2 N. Y. 193 ; 1 Ohio St. 66 ; 23 Ala. N. s. 17, 28 ; 14 B. Monr. Ky. 614 ; 18 id. 49 ; 16 Ill. 17 ; 5 Ga. 85.
5. A battery may likewise be justified in the necessary defence of one's property. If i the plaintiff is in the act of entering peace ably upon the defendant's land, or, having entered, is discovered, not committing vio lence, a request to depart is necessary in the first instance, 2 Salk. 641; and if' the plain tiff refuses, the defendant may then, and not till then, gently lay hands upon the plaintiff to remove him frm the close, and for this purpose may use, if necessary, any degree of force shdrt of striking the plain tiff, as by thrusting him off. Skinn. 28. If the plaintiff resists, the defendant may op pose force to force. 8 Term, 78 ; 2 Mete. Mass. 23. But if the plaintiff is in the act of forcibly catering upon the land, or, having entered, is discovered subverting the soil, cutting down a tree, or the like, 2 Salk. 641. a previous re quest is unnecessary, and the defendant may immediately lay hands upon the plaintiff. 8 j Term, 78. A man may justify a battery in defence of his personal property without a previous request, if another forcibly attempt to take away such property. 2 Salk. 641. As to the rights of railroad-superintendents over the station-houses of the company in this re spect, see 7 Mete. Mass. 596; 12 id. 482 ; 4 Cush. Mass. 608 ; 6 Cox, Cr. Cas. 461.