Sec. IV. Of ill-treating Apprentices and Servants, and abandoning Children. By the 24 & 25 Vict. c. 100, s. 26, "Whosoever, being legally liable, either as a master or mistress, to provide for any apprentice or servant necessary food, clothing, or lodging, shall wilfully and without lawful excuse refuse or neglect to provide the same, or shall unlawfully and maliciously do or cause to be done any bodily harm to any such apprentice or servant, so that the life of such apprentice or servant shall be endangered, or the health of such apprentice or servant shall have been or shall be likely to be permanently injured, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for the term of three years-or to be imprisoned for any term not exceeding two years, with or without hard labor."(u)

Sec. 73. "Where any complaint shall be made of any offence against section twenty-six of this Act, or of any bodily injury inflicted upon any person under the age of sixteen years, for which the party committing it is liable to be indicted, and the circumstances of which offence amount, in point of law, to a felony, or an attempt to commit a felony, or an assault with intent to commit a felony, and two justices of the peace before whom such complaint is heard shall certify under their hands that it is necessary for the purposes of public justice that the prosecution should be conducted by the guardians of the union or *place, or, where [*1016 there are no guardians, by the overseers of the poor of the place, in which the offence shall be charged to have been committed, such guardians or overseers, as the case may be, upon personal service of such certificate or a duplicate thereof upon the clerk of such guardians or any one of such overseers, shall conduct the prosecution, and shall pay the costs reasonably and properly incurred by them therein (so far as the same shall not be allowed to them under any order of any court) out of the common fund of the union, or out of the funds in the hands of the guardians or overseers, as the case may be; and where there is a board of guardians, the clerk or some other officer of the union or place, and, where there is no board of guardians, one of the overseers of the poor may, if such justices think it necessary for the purposes of public justice, be bound over to prosecute." (v)

Sec. 27. "Whosoever shall unlawfully abandon or expose any child, being under the age of two years, whereby the life of such child, shall be endangered, or the health of such child shall have been or shall be likely to be permanently injured, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for the term of three years, or to be imprisoned for any term not exceeding two years, with or without hard labor."(w)

Sec. V.-Of Offences committed with Gunpowder, &c.

By the 24 & 25 Vict. c. 100, c. 28, "Whosoever shall unlawfully and maliciously, by the explosion of gunpowder or other explosive substance, burn, maim, disfigure, disable, or do any grievous bodily harm to any person, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for life or for any term not less than three years-or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and if a male under the age of sixteen years, with or without whipping."(x)

(u) This clause is taken from the 14 & 15 Vict. c. 11, s. 1. The words in italics are substituted for the word assault." As to hard labor, &c., see ante, p. 900. As to counsellors and aiders, see sec. 67, ante, p. 881. As to fine and sureties, see ante, p. 900. As to offences at sea, see ante, p. 762. The Act extends to Ireland, but not to Scotland.

(v) This clause is taken from the 14 & 15 Vict. c. 11, ss. €, 7. The word "poor" is omitted in the words "any bodily injury inflicted upon any poor person."

(w) This clause is new. It is intended to provide for cases where children are abandoned or exposed under such circumstances that their lives or health may be, or be likely to be, endangered. See Reg. v. Hogan, 2 Den. C. C. R 277, ante, p. 90; Reg. v. Cooper, 1 Den. C. C. 459; 2 C. & K. 876 (61 E. C. L. R.), ante, p. 90; Reg. v. Philpot, 1 Dears. C. C. 179, ante, p. 81; Reg. v. Gray, 1 Dears. & B. 303, ante, p. 1008, which show the necessity for this enactment. As to counsellors, aiders, hard labor, &c., see note (u), supra.

(x) This clause is taken from the 9 & 10 Vict. c. 25, s. 3. As to principals in the second

Sec. 29. "Whosoever shall unlawfully and maliciously cause any gun*1017] powder or other explosive substance to explode, *or send or deliver to or cause to be taken or received by any person any explosive substance or any other dangerous or noxious thing, or put or lay at any place, or cast or throw at or upon or otherwise apply to any person, any corrosive fluid or any destructive or explosive substance, with intent in any of the cases aforesaid to burn, maim, disfigure, or disable any person, or to do some grievous bodily harm to any person, shall. whether any bodily injury be effected or not, be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for life or for any term not less than three years-or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and if a male under the age of sixteen years, with or without whipping."(y) Sec. 30. "Whosoever shall unlawfully and maliciously place or throw in, into, upon, against, or near any building, ship, or vessel any gunpowder or other explosive substance, with intent to do any bodily injury to any person, shall, whether or not any explosion take place, and whether or not any bodily injury be effected, be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding fourteen years and not less than three years-or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and if a male under the age of sixteen years, with or without whipping."(z)

Sec. 64. "Whosoever shall knowingly have in his possession, or make or manufacture any gunpowder, explosive substance, or any dangerous or noxious thing, or any machine, engine, instrument, or thing, with intent by means thereof to commit, or for the purpose of enabling any other person to commit, any of the felonies in this Act mentioned, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary-confinement, and, if a male under the age of sixteen years, with or without whipping."(a) Sec. 65. "Any justice of the peace of any county or place in which any such gunpowder, or other explosive, dangerous, or noxious substance or thing, or any such machine, engine, instrument, or thing, is suspected to be made, kept, or carried for the purpose of being used in committing any of the felonies in this Act mentioned, upon reasonable cause assigned upon cath by any person, may issue a warrant under his hand and seal for searching in the day-time any house, mill, magazine, *1018] storehouse, warehouse, *shop, cellar, yard, wharf, or other plaee, or any carriage, wagon, cart, ship, boat, or vessel, in which the same is suspected to be made, kept, or carried for such purpose as hereinbefore mentioned; and every person acting in the execution of any such warrant shall have, for seizing, removing to proper places, and detaining all such gunpowder, explosive, dangerous, or noxious substances, machines, engines, instruments, or things, found upon such search, which he shall have good cause to suspect to be intended to be used in committing any such offence, and the barrels, packages, cases, and other receptacles in which the same shall be, the same powers and protections which are given to persons searching for unlawful quantities of gunpowder under the warrant of a justice by the Act passed in the Session holden in the 23 & 24 Vict. c. 139."

degree and accessories, see sec. 67, ante, p. 881. As to hard labor, &c., see ante, p. 900. As to whipping, see ante, p. 900. As to sureties, see ante, p. 900. As to offences at sea, see ante, p. 762. The Act extends to Ireland, but not to Scotland.

(y) This clause is taken from the 9 & 10 Vict. c. 25, s. 4, and 7 Will. 4, and 1 Vict. c. 85, s. 5. Under those Acts, if any person had placed an infernal machine in any place where he believed another would tread on it, and thereby cause it to explode, he would not have been guilty of an offence. The words "put or lay at any place" were introduced to meet all such cases. As to the words "whether any bodily injury," &c., see the note to sec. 14, ante, p. 973. As to principals in the second degree, accessories, hard labor, &c., see the last note.

(2) This clause is taken from the 9 & 10 Vict. c. 25, s. 6. As to hard labor, &c., see note (x), ante, p. 1016.

(a) This clause is taken from the 9 & 10 Vict. c. 25, s. 8, and extended to all the felonies against this Act. As to hard labor, &c., see note (x), ante, p. 1016.

As it may in some cases be expedient to add a count on the following clause to an indictment on one of the preceding clauses, it is here inserted.

By the 24 & 25 Vict. c. 97, s. 9, "Whosoever shall unlawfully and maliciously, by the explosion of gunpowder or other explosive substance, destroy, throw down, or damage the whole or any part of any dwelling-house, any person being therein, or of any building whereby the life of any person shall be endangered, shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the Court, to be kept in penal servitude for life, or for any term not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and if a male under the age of sixteen years, with or without whipping."()

*CHAPTER THE TENTH.

OF COMMON AND AGGRAVATED ASSAULTS.

Sec. I-Of Common Assaults.

[*1019

AN assault is an attempt or offer, with force and violence, to do a corporal hurt to another; as by striking at another with a stick or other weapon, or without a weapon, though the party striking misses his aim. So drawing a sword or bayonet, or even holding up a fist in a menacing manner, throwing a bottle or glass with intent to wound or strike, presenting a gun at a person who is within the distance to which the gun will carry, pointing a pitchfork at a person who is within reach, or any other similar act, accompanied with such circumstances as denote at the time an intention, coupled with a present ability, of using actual violence against the person of another, will amount to an assault.(a)1

(b) As to principals in the second degree and accessories, see ante, p. 5. As to hard labor, solitary confinement, whipping, and sureties, see ante, pp. 4, 5. The Act extends to Ireland, but not to Scotland. As to attempts to destroy buildings with gunpowder, see sec. 10, Vol. II.

(a) 1 Hawk. P. C. c. 62, s. 1; Bac. Abr. tit. "Assault and Battery" (A.); 3 Blac. Com. 120; Burn. Just. tit. "Assault and Battery" 1; 1 East P. C. c. 8, s. 1, p. 406; Bull. N. P. 15; Selw. N. P. tit. "Assault and Battery" 1.

1 An assault is an attempt with force or violence" to do a corporal injury to another; and may consist of any act tending to such injury, accompanied with circumstances denoting an intent, coupled with a present ability, to use violence against the person. It is not essential to constitute an assault that there should be a direct attempt at violence: Hays v. People, 1 Hill 321. There must be force or threats, or demonstration of force towards the party, to constitute an assault. Thus where A., having the right to immediate possession of a house, entered the same, and forcibly took away the windows of the room in which B. was sick in bed, without evidence that A. knew that B. was in the house, does not constitute an assault: Meader v. Stone et al., 7 Metcalf 147. No doubt an assault may be committed on one in a house, who is not seen or known to be there; as if one were wantonly to fire a loaded gun, and the ball should pass through a house where persons were, it might be an assault on all of them: Ibid. 151. When the evidence disclosed that the defendant presented a gun within shooting distance of and against the prosecutor, who was then armed with a knife and about to attack the defendant, this was no assault if there was no attempt to use the gun, or intention to use it, unless first assailed with the knife: State v. Blackwell, 9 Ala. 79. To ride a horse so near to one as to endanger his person, and create a belief in his mind that it is the intention of the rider to ride over him, constitutes an assault: State v. Sims, 3 Strobh. 137. Where one presents a pistol at another and threatens to shoot, and finally lowers the pistol and it is not loaded, the man is guilty of an assault, and he is bound to show that the pistol is not loaded; but whether that fact would excuse him or not, without also proving that the other person knew it was not loaded, quære: State v. Cherry, 11 Ired. 475.

On the trial of an indictment for an assault and battery, when there was a question which party was the aggressor, it was held, that the fact that the defendant went to the place where the other party was, and called him out for the purpose of having a difficulty

But it appears to be now quite settled, though many ancient opinions were to the contrary, that no words whatsoever, be they ever so provoking, can amount to an assault.(b) And the words used at the time may so explain the intention of the party as to qualify his act, and prevent it from being deemed an assault; as where A. laid his hand upon his sword, and said, "If it were not the assize-time, I would not take such language from you," it was holden not to be an assault, on the ground that he did not design to do the other party any corporal hurt at that time, and that a man's intention must operate with his act in constituting an assault. (c)

66

It had been laid down by a very learned Judge, notwithstanding a contrary opinion in an earlier case.(d) that if a person present a pistol, purporting to be a loaded pistol, so near as to produce danger to life if the pistol had gone off, it is an assault in point of law, althou. h in fact the pistol be unloaded. The learned Judge said, My idea is, that it is an assault to present a pistol at all, whether loaded or not. If you threw the powder out of the pan, or took the percussion cap off, and said to the party this is an empty pistol, then that would be no assault, for there the party must see that it was not possible that he should be injured; but if *a person presents a pistol which has the appearance of being loaded, and puts the party into fear and alarm, that is what it is the object of the law to prevent."(e)

*1020]

However, where in an action for an assault and presenting a loaded pistol at the plaintiff, it appeared that the defendant cocked a pistol, and presented it at the plaintiff's head, and said, if he wa. not quiet he would blow his brains out; but there was no evidence that the pistol was loaded, Lord Abinger, C. B., held that if the pistol was not loaded it would be no assault.(f) And Tindal, C. J., has ruled in the same way.(g)

(b) 1 Hawk. P. C. c. 62, s. 1; Bac. Abr. tit. "Assault and Battery" (A).

(c) Turberville v. Savage, 1 Mod. 3; s. c., 2 Keb. 545.

(d) Anonymous, cor. Erskine, J., mentioned by Ludlow, Serjt., in Reg. v. St. George, 9 C. & P. 492 (38 E. C. L. R.).

(e) Reg. v. St. George, 9 Ć. & P. 483 (38 E. C. L. R.), Parke, B.; for the facts of this case, see ante, p. 982.

(f) Blake v. Barnard, 9 C. & P. 626 (38 E. C. L. R.). It seems that a very reasonable distinction might be made in cases of this kind. If a person presents a gun at another, knowing it not to be loaded, there can be no intent to injure in any event, and therefore he ought not to be criminally responsible; but if the person, at whom such an unloaded gun was presented, did anything in self-defence, his justification, whether in a civil or criminal proceeding, ought to be just the same as if the gun were loaded; for the act of the party presenting the gun led to the natural consequences that the party at whom it was presented should defend himself, and the party presenting the gun ought not to be permitted to show the facts to be otherwise than he had himself held them out to be.

(g) Reg. v. James, 1 C. & K. 530 (47 E. C. L. R.), and see Reg. v. Baker, 1 C. & K. 254 (47 E. C. L. R.), where Rolfe, B., seems also to have held the same opinion.

with him, did not of itself render him guilty of the assault and battery, unless he carried his intention into effect: Yoes v. State, 4 Engl. 42. If a person present a pistol at another, purporting to be loaded, so near as to have been dangerous to life, if the pistol being loaded had gone off, this is an assault in law, though the pistol were not in fact loaded: State v. Smith, 3 Humph. 457. An offer to strike by one person rushing upon another, will be an assault, though the assailant be not near enough to reach his adversary, if the distance be such as to induce a man of ordinary firmness, under the accompanying circumstances, to believe that he will instantly receive a blow unless he strikes in selfdefence: State v. Davis, 1 Ired. 125. Threats and menacing gestures, if unaccompanied by a present intention to do a corporal injury, do not amount to an assault: Smith e. State, 39 Miss. 521. A mere threat is not an assault: State v. Mooney, Phill. (Law) 434; Balkam v. State, 40 Ala. 671. But stopping and preventing a person by means of threats from passing along the public highway, is an illegal imprisonment and an assault: Bloomer v. State, 3 Sneed 66. It is indispensable that violence be either offered, menaced, or designed People v. Bransby, 32 N. Y. 525. Malice is not an ingredient: United States v. Lunt, Sprague 311. The intent to injure is the gist of the offence: Rickets v. State, 1 Sneed 606. See also Warren v. State, 33 Texas 517; State v. Malcolm, 8 Clarke 413; Comm. v. Hurley, 99 Mass. 433; Tarver v. State, 43 Ala. 354; State v. Rawles, 65 N. C. 334; State v Vannoy, Ibid. 532; State v. Hampton, 63 N. C. 13; State v. Church, Ibid.

Pointing a loaded gun at half cock at a person is an assault; for there is a present ability of doing the act threatened, as the gun can be cocked in an instant. (h)1

It is not every threat, where there is no actual personal violence, that constitutes an assault; there must in all cases, be the means of carrying the threat into effect. If, therefore, a party be advancing in a threatening attitude, e. g., with his fist clenched, to strike another, so that his blow would almost immediately have reached such person, and be then stopped, it is an assault in law, if his intent were to strike such person, though he was not near enough at the time to have struck him.(i)

Where the plaintiff was in the defendant's workshop and refused to leave it, and the defendant and his workmen surrounded him, and tucking up their sleeves and aprons, threatened to break his neck, if he did not go out, and fearing that the men would strike him if he did not do so, the plaintiff went out; it was held that this was an assault; for there was a threat of violence exhibiting an intention to assault, and a present ability to carry the threat into execution.(k)

The plaintiff was walking on a footpath by a road side, and the defendant, who was on horseback, rode after him at a quick pace; the plaintiff then ran away into his own garden, and the defendant rode up to the gate, and shook his whip at the plaintiff, who was about three yards off; it was held, that if the defendant rode after the plaintiff, so as to compel him to run into his garden for shelter to avoid being beaten, it was an assault (71)

A battery is more than an attempt to do a corporal hurt to another; but any injury whatsoever, be it ever so small, being actually done to the person of a man, in an angry or revengeful, or rude or insolent manner, such as spitting in his face, or in any way touching him in anger, or violently jostling him out of the way, [*1021 is a battery in the eye of the law. (m) For the law cannot draw the line between different degrees of violence, and, therefore, totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it in any the slightest manner (n) It should be observed that every battery includes an assault.(0)3

To cut a man's clothes whilst on his person is an assault, although there is no intention to inflict any bodily injury, and in the ordinary case of a blow on the back there is clearly an assault, though the blow is received by the coat on the person.(p)

Where a policeman was stationed at a door to prevent a person from entering, it was held that, if he was entirely passive, like a door or a wall put to prevent that

(h) Osborn v. Veitch, 1 F. & F. 317, Willes, J.

(1) Stephens v. Myers, 4 C. & P. 349 (19 E. C. L. R.), Tindal, C. J.

(k) Read v. Coker, 13 C. B. 850 (76 E. C. L. R.).

(7) Mortin v. Shoppee, 3 C. & P. 373 (14 E. C. L. R.), Lord Tenterden, C. J.

(m) Bac. Abr. tit. Assault and Battery" (B.); 1 Hawk. P. C. c. 62, s. 2.

(n) 4 Blac. Com. 120.

(0) Termes de la ley, "Battery," 1 Hawk. P. C. c. 62, s. 1; Bac. Abr. tit. "Assault and Battery" (A.).

(p) Rex v. Day, 1 Cox C. C. 207, Parke, B., ante, p. 986.

To constitute an assault there must be the commencement of an act which, if not prevented, would produce a battery; and therefore the drawing of a pistol, without presenting or cocking it is not an assault: Lawson v. State, 30 Ala. 14. Presenting a gun in an angry and excited manner at another is an assault, whether the gun was in fact loaded or not, if the person at whom it is presented is ignorant whether it is loaded: Beach v. Hancock, 7 Foster 223. The pointing of a gun at a person who does not know but that it is loaded or has no reason to believe that it is not is an assault: State v. Sheppard, 10 Iowa 126. For other cases of assaults with gun or pistol see Keefe v. State, 19 Ark. 190; State v. Epperson, 27 Mo. 255; Higginbotham v. State, 23 Texas 574; Comm. v. M·Laughlin, 5 Allen 507; State v. Blackweil, 9 Ala. 79; State v. Smith, 3 Humph. 457.

2 An intent with acts which if not interrupted will be followed by personal injury, is sufficient, although the assailant may not be at any time within striking distance: People v. Yslas, 27 Cal. 630; State v. Davis, 1 Ind. 125. To ride a horse so near to one as to endanger his person, and create a belief in his mind that it is the intention of the rider to ride over him, constitutes an assault: State v. Sims, 3 Strobh. 137.

State v. Baker, 65 N. C. 332; Johnson v. State, 17 Texas 515.