It is not an assault for a beadle to turn out of church a man who is disturbing the service, if without unnecessary violence ; [1893] 1 Q. B. 142; or for the master of a house to expel one who comes into his house and disturbs the peace of the family ; 3 C. & K. 25.
If a teacher take indecent liberties with a female scholar, without her consent, though she does not resist, it is an assault ; 6 Cox, Cr. Cas. 64; 9 C. & P. 722; Ridout v. State, 6 Tex. App. 249. So, if a medical practition er unnecessarily strips a female patient nak ed, under the pretence that he cannot other wise judge of her illness, it is an assault, if he assisted to take off her clothes ; 1 Moody 19; 1 Lew. 11. Where a medical man had connection with a girl fourteen years of age, under the pretence that he was thereby treat ing her professionally, she making no resist ance solely from the belief that such was the case, it was held that he was properly convicted of an assault ; 1 Den. Cr. Cas. 580 ; 4 Cox, Cr. Cas. 220 ; Tempi. & M. 218. But an attempt to commit the misdemeanor of having carnal knowledge of a girl between ten and twelve years old, is not an assault, by reason of the consent of the girl ; 8 C. & P. 574, 589 ; 7 Cox, Cr. Cas. 145. And see 1 Den. Cr. Cas. 377 ; 2 C. & K. 957 ; 3 Cox, Cr. Cas. 266. But it has been held that one may be convicted of an assault upon the per son of a girl under ten years of age with in tent to commit a rape, whether she consented or resisted ; People v. Gordon, 70 CaI. 467, 11 Pac. 762. One is not guilty of an assault if he takes hold of a woman's hand and puts his arm around her shoulder, unless he does so without her consent or with an intent to injure her ; Crawford v. State, 21 Tex. App. 454, 1 S. W. 446. One is guilty of assault and battery who delivers to another a thing to be eaten, knowing that it contains a foreign substance and concealing tire fact, if the oth er, in ignorance, eats it and is injured ; Com. v. Stratton, 114 Mass. 303, 19 Am. Rep. 350; but see 2 C. & K. 912 ; 1 Cox, Cr. Cas. 281; People v. Quin, 50 Barb. (N. Y.) 128. An unlawful imprisonment is also an assault ; 1 Hawk. Pl. Cr. e. 62, § 1. A negligent at tack may be an assault ; Whart. Cr. L. § 603. See Steph. Dig. Cr. L. §' 243.
A teacher has a right to punish a pupil for misbehavior ; , but this punishment must be reasonable and proportioned to the grav ity of the pupil's misconduct; and must be inflicted in the honest performance of the teacher's duty, not with the mere intent of gratifying his or malice. If it is un reasonable and excessive, is inflicted with an improper weapon, or is disproportioned to the offence for which it is inflicted, it is an assault; Vanvactor v. State, 113 Ind. 276, 15 N. E. 341, 3 Am. St. Rep. 645; State v. Stafford, 113 N. C. 635, 18 S. E. 256 ; Spear c. State (Tex.) 25 S. W. 125. The punishment must be for some specific offence which the pupil has committed, and which he knows he is punished for ; State v. Mizner, 50 Ia. 145, 32 Am. Rep. 128. If a person over the age of 21 voluntarily attends school, he thereby waives any privilege which his age confers, and may be punished for misbehavior as any other pupils ; State v. Mizner, 45 Ia. 248,
24 Am. Rep. 769. A teacher has no right, however, to punish a child for neglecting or refusing to study certain branches from which the parents of the child have request ed that it might be excused, or which they have forbidden it to pursue, if those facts are known to the teacher. The proper rem edy in such a case is to exclude the pupil from the school ; State v. Mizner, 50 Ia. 145, 32 Am. Rep. 128; Morrow v. Wood, 35 Wis. 59, 17 Am. Rep. 471.
The teacher has in his favor the presump tion that he has only done his duty, in addi tion to the general presumption of inns. cence; Vanvaetor v. State, 113 Ind. 276, 15 N. E. 341, 3 Am. St. Rep. 645 ; State v. Miz ner, 50 Ia. 145, 32 Am. Rep. 128 ; and in de termining the reasonableness of the punish ment, the judgment of the teacher as to what was required by the situation should have weight ; Vanvactor v. State, 113 Ind. 276, 15 N. E. 341, 3 Am. St. Rep. 645. When a prop er instrument has been used, the character of the chastisement, as regards its cruelty or excess, must be determined by considering the nature of the offence for which it was inflicted, the age, physical and mental con dition, as well as the personal attributes of the pupil, and the deportment of the teach er ; Vanvaetor v. State, 113 Ind. 276, 15 N. E. 341, 3 Am. St. Rep. 645 ; Dowlen v. State, 14 Tex. App. 61; and since the legitimate ob ject of chastisement is to inflict punishment by the pain which it causes, as well as the degradation it implies, it does not follow that chastisement was cruel or excessive because pain was caused or abrasions of the skin re sulted from the use of a switch by the teach er ; Vanvaetor v. State, 113 Ind. 276, 15 N. E. 341, 3 Am. St. Rep. 645.
A teacher will, be liable for prosecution, if i he inflict such. unishment as produces or threatens lastin mischief, or if he inflict punishment, not in the honest performance of duty, but under the pretext of duty to gratify malice ; State v. Pendergrass, 19 N. C. 365, 31 Am. Dec. 416; State v. Long, 117 N. C. 791, 23 S. E. 431. But a charge to the jury that "malice means bad temper, high temper, quick temper ; and if the injury was inflicted from malice, as above defined, then they should convict the defendant," is erro neous; for malice may exist without temper, and may not exist although the act be done while under the influence of temper, bad, high or quick. General malice, or malice against all mankind, "is wickedness, a dis position to do wrong, a black and diabolical heart, -regardless of social duty, and fatally bent on mischief." Particular malice is will, grudge, a desire to be revenged on a particular person." This distinction should be explained to the jury, and the term "mal ice" should be accurately defined; State V. Long, 117 N. C. 791, 23 S. E. 431. See TERY; MENTAL SUFFERING; CORRECTION; SCHOOL ; WHIPPING.