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battery, act, plaintiff, plea, held, force and justification

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ASSAULT. An unlawful offer or attempt with force or violence to do a corporeal hurt to another.

Force unlawfully directed or applied to the person of another under such circum stances as to cause a well-founded appre hension of immediate peril. Bish. Cr. Law 548.

Aggravated assault is one committed with the intention of committing some additional crime. Simple assault is one committed with no intention to do any other injury.

Assault is generally coupledith battery, and for the excellent practical reason that they generally go together ; but the •result i ather the initiation or offer to commit the act of which the battery is the consummation. An assault is included in every battery ; 1 Hawk. Pl. Cr. c. 62, § 1.

Where a person is only assaulted, still the form of the declaration is the same as where there has been a battery, "that the defendant assaulted, and heat, bruised, and wounded the plaintiff ;" 1 Saund. 6th ed. 14 a. The word "ill-treated" is frequently in serted: and if the assaulting and ill-treating are justified in the plea, although the beating, bruising, and wounding are not, yet it is held that the plea amounts to a justification of the battery; 7 Taunt. 689 ; 1 J. B. Moore 420. So where the plaintiff de clared, in trespass, for assaulting him, seizing and laying hold of him, and imprisoning him, and the defendant pleaded a justification under a writ of capias, it was held, that the plea admitted a bat tery; 3 M. & W. 28. But where in trespass for as saulting the plaintiff, and throwing water upon him, and also wetting and damaging his clothes, the de fendant pleaded a justification as to assaulting the plaintiff and wetting and damaging his clothes, it was held, that, though the declaration alleged a battery, yet the matter justified by the plea did not amount to a battery; 8 Ad. & E. 602.

Any act causing a well-founded apprehen sion of immediate peril from a force already partially or fully put in motion is an assault ; 4 C. & P. 349 ; 9 id. 483, 626; Com. v. White, 110 Mass. 407; State v. Davis, 23 N. C. 125, 35 Am. Dec. 735; State v. Crow, 23 N. C.

375 ; Com. v. Eyre, 1 S. & R. (Pa.) 347 ; State v. Sims, 3 Strobh. (S. C.) 137; State v. Blackwell, 9 Ala. 79 ; United States v. Hand, 2 Wash. C. C. 435, Fed. Cas. No. 15,297; un

less justifiable. But if justifiable, then it is not necessarily either a battery or an as sault. Whether the act, therefore, in any particular case is an assault and battery, or a gentle imposition of hands, or application of force, depends upon the question whether there was justifiable cause. If, therefore, the evidence fails to show the act to have been unjustifiable, or leaves that question in doubt, the criminal act is not proved; Com. v. McKie, 1 Gray (Mass.) 63, 64, 61 Am. Dec. 410. Any threatening gesture, showing in itself, or by words accompanying it, an im mediate intention coupled with ability to commit a battery, is an assault ; Flournoy v. State, 25 Tex. App. 244, 7 S. W. 865 ; Lane v. State, 85 Ala. 11, 4 South. 730 ; 13 C. B 860; People v. Lilley, 43 Mich. 527, 5 N. W. 982 ; but an approach with gesticulations and menaces was held not an assault ; Berkeley v. Com., 88 Va. 1017, 14 S. E. 916; words are not legal provocation to justify an as sault and battery ; State v. Workman, 39 S. C. 151, 17 S. E. 694 ; Willey v. Carpenter, 64 Vt. 212; 23 Atl. 630, 15 L. R. A. 853. It is an assault where one strikes at another with a stick without hitting him; 1 Hawk. P1. Cr. 110. Shooting into a crowd is an assault up on each member of the crowd; Scott v. State, 49 Ark. 156, 4 S. W. 750 ; an officer is guilty of an assault in shooting at a flee ing prisoner, who had been arrested for mis demeanor, whether he intended to hit the prisoner or not ; State v. Sigman, 106 N. C. 728, 11 S. E. 520.

Generally speaking "consent to an assault is no justification," and "an injury, even in sport, would be an assault if it went beyond what was admissible in sports of the sort, and was intentional"; McNeil v. Mullin, 70 Kan. 634, 79 Pac. 168, quoting Cooley, Torts 163 ; Willey v. Carpenter, 64 Vt. 212, 23 Atl. 630, 15 L. R. A. 853, and note ; Poll. Torts 157; Grotton v. Glidden, 84 Me. 589, 24 Atl. 1008, 30 Am. St. Rep. 413. But there are ex ceptions, as where the essence of the offense is its being against the consent, as in rape (q. v.). And consent to vaccination may be implied from conduct so that no assault is committed; O'Brien v. S. S. Co., 154 Mass. 272, 28 N. E. 266, 13 L. R. A. 329.

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