BATTERY. Any unlawful beating, or oth er wrongful physical violence or constraint, inflicted on a human being without his con sent. 2. Bish. Cr. L. § 71; Clark, Cr. L. 199 ; Long v. Rogers, 17 Ala. 540; Pike v. Han son, 9 N. H. 491.
An unlawful touching the person of other by the aggressor himself, or any other substance put in motion by him; Kirland v. State, 43 Ind. 153, 13 Am. Rep. 386. The slightest touching of another in anger is a battery ; Goodrum v. State, 60 Ga. 511.
It must be either wilfully committed, or proceed from want of due care; Stra. 596; Plowd. 19; Bullock v. Babcock, 3 Wend. (N. Y.) 391. Hence an injury, be it ever so small, done to the person of another in an angry, spiteful, rude, or insolent manner ; Com. v. Wing, 9 Pick. (Mass.) 1, 19 Am. Dec. 347; 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, Cr. 7511 Johnson v. State, 17 Tex. 515 ; or throwing water on him; 3 N. & P. 564 ; or violently jostling him; see 4 H. & N. 481; or where one riding a bicycle recklessly runs against a person standing with his back partially to wards him, when by the exercise of slight care it could be avoided; Mercer v. Corbin, 117 Ind. 450, 20 N. E. 132, 3 L. R. A. 221, 10 Am. St. Rep. 76; is a battery in the eye of the law ; 1 Hawk. Pi. Cr. 263. 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 battery ; Respub lice v. De Longchamps, 1 Dell. (U. S.) 114, 1 L. Ed. 59 ; State v. Davis, 1 Hill (S. C.) 46 ; Rich v. Hogeboom, 4 Denio (N. Y.) 453 ; Unit ed States v. Ortega, 4 Wash. C. C. 534, Fed. Cas. No. 15,971. Whether striking a horse is striking the driver, see Kirland v. State, 43 Ind. 146, 13 Am. Rep. 386.
A battery may be justified on various ac counts.
As a salutary mode of correction. A par ent may correct his child (though if done to excess, it is battery) ; Corn. v. Coffey, 121 Mass. 66 ; Neal v. State, 54 Ga. 281; Smith v. Slocum, 62 Ill. 354 ; a guardian his ward ; Stanfield v. State, 43 Tex. 167 ; a master his apprentice ; 24 Edw. IV. ; Corn. v. Randall, 4 Gray (Mass.) 36 ; State v. Pendergrass, 19 N. C. 365, 31 Am. Dec. 416 ; a teacher his scholar, within reason ; State v. Mizner, 45 Ia. 248, 24 Am. Rep. 769; State v. Alford, 68 N. C. 322; Starr v. Liftchild, 40 Barb. (N. Y.) 541; Marlsbary v. State, 10 Ind. App. 21, 37 N. E. 558 ; and a superior officer, one un der his command ; Keilw. 136; Buller, N. P: 19; Bee, Adm. 161; Flemming v. Ball, 1 Bay (S. C.) 3 ; Brown v. Howard, 14 Johns. (N. Y.) 119 ; Sampson v. Smith, 15 Mass. 365. And see Cowp. 173 ; Hannen v. Edes, 15 Mass. 347 ; 3 C. & K. 142; but a. master, ordinarily, not his servant ; Corn. v. Baird, 1 Ashm. (Pa.) 267; Davis v. State, 6 Tex. App. 133 ; and the mate of a steamboat has no legal right•to enforce his orders by beat ing one of the crew ; The General Rucker, 35 Fed. 152. See ASSAULT; BEAT; TION. Doubtless these cases, or some of them, would hardly now be followed.
As a means of preserving the peace, in the exercise of an office, under process of court, and in aid of an authority at law. See AR REST.
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 serv ant, Ow. 150 (but see 1 Salk. 407) ; but he is not justified in using force against a man to prevent his leaving him at the per suasion of such other ; State v. Weathers, 98
N. C. 685, 4 S. E. 512. So, likewise, a person may defend any member of his family against an assault as he could himself, the wife may justify a battery in defending her husband, the child its parent, and the serv ant his master ; 3 Salk. 46 ; Com. v. Malone, 114 Mass. 295 ; Smith v. Slocum, 62 Ill. 354; Patten v. People, 18 Mich. 314, 100 Am. Dec. 173 ; State v. Greer, 22 W. Va. 800 ; Staten v. State, 30 Miss. 619 ; Webb, Poll. Torts, 255. In these situations, the party need not wait until a blow has been given ; for then he might come too late, and be disabled from warding off a second stroke or from protect ing the person assailed. Care, however, must be taken that the battery do not exceed the bounds of necessary defence and protec tion ;. for it is only permitted as a means to avert an impending evil which might other wise overwhelm the party and not as a pun ishment or retaliation for the injurious at tempt ; Stra. 593 ; 1 Const. S. C. 34 ; Wat rous v. Steel, 4 Vt. 629, 24 Am. Dec. 628 ; Shain v. Markham, 4 J. J. Marsh. 578, 20 Am. Dec. 232 ; Poll. Torts 255. The de gree of force necessary to repel an 'assault will naturally depend upon, and be propor tioned to, the violence of the assailant ; but with this limitation any degree is justifia ble ; 1 Ld. Raym. 177 ; Young v. State, 11 Humphr. (Tenn.) 200 ; Shorter v.. People, 2 N. Y. 193, 51 Am. Dec. 286 ; Stewart v. State, 1 Ohio St 66 ; Holmes v. State, 23 Ala. 17 ; Carroll v. State, 23 Ala. 28, 58 Am. Dec. 282 ; Rapp v. Com., 14 B. Monr. (Ky.) 614 ; Camp bell v. People, 16 Ill. 17, 61 Am. Dec. 49 ; Monroe v. State, 5 Ga. 85.
Evidence justifying an assault and battery is not admissible under a general denial ; Hathaway v. Hatchard, 160 Mass. 296, 35 N. E. 857.
A battery may likewise be justified in the necessary defence of one's property ; State v. Miller, 12 Vt. 437; Filkins v. People, 69 N. Y. 101, 25 Am. Rep. 143. If the plaintiff is in the act of entering peaceably upon the de fendant's land, or, entered, is discov ered, not committing violence, a request to depart is necessary in the first instance ; 2 Salk. 641; Abt v. Burgheim, 80 Ill. 92 ; see Low v. Elwell, 121 Mass. 309, 23 Am. Rep. 272 ; Townsend v. Briggs, 99 Cal. 481, 34 Pac. 116 ; and if the plaintiff refuses, the defendant may then, and not till then, gently lay hands upon the plaintiff to remove him from the close, and for this purpose may use, if necessary, any degree of force short striking the plaintiff, as by thrusting him off ; Skinn. 28. See Everton v. Esgate, 24 Neb. 235, 38 N. W. 794. If the plaintiff re sists, the defendant may oppose force to force ; Com. v. Clark, 2 Mete. (Mass.) 23; 1 C. & P. 6. But if the plaintiff is in the act of forcibly entering upon the land, or, having entered, is discovered subverting the soil, cutting down a tree, or the like, 2 Salk. 641, a previous request is unnecessary, and the defendant may immediately lay hands upon the plaintiff ; 8 Term 78. A man may justify a battery in defence of his personal property without a previous request, if another forci bly attempt to take away such property ; 2 Salk. 641. One from whom property has been wrongfully taken may regain the mo mentarily interrupted possession by the use of reasonable force, especially after demand ing possession ; Corn. v. Donahue, 148 Mass. 529, 20 N. E. 171, 2 L. R. A. 623, 12 Am. St. Rep. 591.