need not stay till the plaintiff has actually struck him.(h) If one man strikes another a blow, that other has a right to defend himself, and to strike a blow in his defence, but he has no right to revenge himself; and if when all danger is past he strikes a blow not necessary for his defence, he commits an assault and battery.(i) It is not, however, every trifling assault that will justify a grievous and immediate mayhem, such as cutting off a leg or hand, or biting off a joint of a man's finger, unless it happened accidentally, without any cruel or malignant intention, or after the blood was heated in the scuffle, but it must appear that the assault was in some degree proportionable to the mayhem.(k) If a party raise up a hand against another, within a distance capable of the latter being struck, the other may strike in his own defence, to prevent him, but he must not use a greater degree of force than is necessary.(7) For if the violence used be more than was necessary to repel the assault, the party may be convicted of an assault.(m) It has been holden that a defendant may justify even a mayhem, if done by him as an officer in the army, for disobeying orders; and that he may give in evidence the sentence of a council at war, upon a petition against him by the plaintiff; and that if, by the sentence, the petition is dismissed, it will be conclusive evidence in favor of the defendant.(n) In cases where officers have authority to arrest, their laying hands upon persons in order to do so is no battery in law. So if a justice make a warrant to J. S. to arrest J. D., and J. N. comes in aid of J. S., and gently puts his hands on the (h) Bull. N. P. 18. (i) Reg. v. Driscoll, C. & M. 214, Coleridge, J. Lord Coke (Co. Litt. 162 a) cites from Bracton, vim vi repellere licet, modo fiat moderamine inculpatæ tutelæ, non ad sumendam vindictam, sed ad propulsandam injuriam. (k) 1 East P. C. c. 7, s. 9, p. 402. (2) Per Parke, B., Anonymous, 2 Lew. 48. (m) Reg v. Mabel, 9 C. & P. 474 (38 E. C. L. R.), Parke, B.; Rex v. Whalley, 7 C. & P. 245 (34 E. C. L. R.), Williams, J. See post, p. 1029. (n) Lane v. Degberg, 11 Wm. 3, per Treby, C. J.; Bull. N. P. 19. 1 A person who seeks a fight or provokes another to strike him cannot justify a blow on the ground of self-defence: State v. Bryson, 1 Wms. (Law) 86. It is not a man's belief simply that he will be struck that will justify him in striking first, but his belief founded on reasonable grounds of apprehension: Ibid. It is not sufficient to constitute an assault, that a man of ordinary firmness should believe that he was about to be stricken; but if it can be collected from the circumstances, that notwithstanding appearances to the contrary, there was not a present purpose to do an injury, there is no assault: State v. Crow, 1 Ired. 376. When the defendant, at the time he raised his whip and shook it at the prosecutor, though within striking distance, made use of the words "Were you not an old man, I would knock you down," this does not import a present purpose to strike, and does not in law amount to an assault: State v. Crow, 1 Ired. 376. When A., being within striking distance, raises a weapon for the purpose of striking B., and at the same time declares that if B. will perform a certain act he will not strike him, and B. does perform the required act, in consequence of which no blow is given, this is an assault in A.: State v. Morgan, 3 Ired. 186. 2 Proof that the prisoner struck the first blow will not justify an enormous battery: State v. Quin, 3 Brev. 515. Where a woman asked a man, as he was riding along on horseback, why he had been talking about her, and threw a stone and then a stick at him, and he got off and took up a stick and hit her on the head, he was held to be guilty of an assault and battery. One committing an assault is only justifiable when it is committed in self-defence: State v. Gibson, 10 Ired. 214. Though a man may put another out of his house, who persists in remaining, yet he may not inflict a violent battery. A person having business to transact with another, has a right to enter his house; and if he remains after being ordered to depart, he may be put out of the house, the owner making use of no more violence than is necessary for the accomplishment of that object, and showing that this was his object. But if the beating be cruel and excessive, not calculated either from its extent or manner to produce the pretended object of getting the party out, but on the contrary rather to prevent him from going, such conduct cannot be justified upon any principle of law. While the law permits men to defend their persons, or preserve the immunities of their dwellings, it is careful to restrain the indulgence of an ungovernable and revengeful spirit: State v. Lazarus, 1 South Carolina 34. See Gallagher v. State, 3 Minn. 270; Comm. v. Ford, 5 Gray 475; Colton v. State, 4 Texas 260. shoulders of J. D., and says, "this is the man," this is no battery.(0) There may be cases in which a person may justify laying hands upon another in order to serve him with civil process (p) But in all such cases the force used must be only so great as is necessary for the purpose of effecting the object in view, and if there be an excess of violence the officer will be guilty of an assault. If, therefore, a constable is preventing a breach of the peace, and any person stands in the way with intent to prevent him from so doing, *the constable is justified in taking such person into custody, but *1028] not in striking him.(q) So where one of the Marshals of the city of Lon don, whose duty it was on the day of a public meeting in Guildhall, to see that a passage was kept for the transit of the carriages of the members of the corporation and others, directed a person in the front of the crowd to stand back, and on being told by him that he could not for those behind him, struck him immediately on the face, saying, that he would make him, it was held that a more moderate degree of pressure ought to have been exercised, and some little time given to remove the party in a more peaceable way, and that consequently the Marshal had been guilty of too violent an exertion of his authority.(r) An officer is entitled to the possession of the warrant under which he acts, and if he deliver it to the party against whom it is issued, and he refuse to re-deliver it, the officer may use so much force as is necessary to get possession of it again. An officer having a warrant to search for an illegal still in the defendant's house, the defendant asked to see the warrant, and it was given him, and he then refused to return it, upon which the officer endeavored by force to retake it, and a scuffle ensued, it was held that the officer was justified in using so much violence as was necessary to retake the warrant, and no more.(s)1 Where a magistrate is making a preliminary inquiry for the purpose of ascer taining whether there is sufficient ground to commit a party for trial, no person has a right to be present, and consequently the magistrate may justify laying hands upon a person, who refuses to leave the room where the inquiry is being made, in order to turn him out.(t) So where a coroner is holding an inquest, which is a preliminary investigation only, he may justify turning any person out of the ros where the inquest is held. (u) But where the proceedings before magistrates are of a judicial nature, as in the case of summary convictions, all persons have a right to be present, and, therefore, a magistrate cannot justify laying hands upon a person to turn him out of the room. (v) Formerly on the hearing of an information, the magistrates had the discretionary power to regulate the proceedings of their own Courts, and might decide who should appear as advocates, and whether, when the parties were before them, they would hear any one but them; if, therefore, an attorney insisted upon acting as an attorney in such a case, where it was not the practice of the magistrates to permit any person to appear as an advocate, they might justify laying hands upon him to turn him out of the room (w) But the (0) Wilson v. Dodd, 2 Roll. Ab 546. (p) Harrison v. Hodgson, 10 B. & C. 445 (21 E. C. L. R.). See 2 Roll. Abr. 546. (9) Levy v. Edwards, 1 C. & P. 40 (12 E. Č. L. R.), Burrough, J. (r) Imason v. Cope, 5 C. & P. 193 (24 E. C. L. R.), Tindal, C. J. (s) Rex v. Milton, M. & M. 107, Lord Tenterden, C. J.; s. c., 3 C. & P. 31 (14 E. C. L. R.). (t) Cox v. Coleridge, 1 B. & C. 37 (8 E. C. L. R.). 1 Even although an officer attempting to execute process, be unauthorized and therefore a trespasser, yet he is not bound to submit to unreasonable and unnecessary violence and may defend himself against the same without being guilty of an assault: People v. Galick, Hill & Denio 229. Though an officer, in seizing property, may be a trespasser, if acting in good faith, he must be regarded as in the execution of his office so far as to be entitled to protection against the violence of the owner of the property: Faris v. State, 3 Ohio (N. S.) 159. And see also State v. Richardson, 38 N. H. 208; State v. Webster, 39 Ibid. 96; Comm. v. Presby, 14 Gray 65; Galvin v. State, 6 Cald. 283. The officer refusing to read his warrant does not justify resistance: Comm. v. Cooley, 6 Gray 350; Kernan . State, 11 Ind. 471. case would be otherwise since the 11 & 12 Vict. c. 43, s. 12, which gives the parties in such cases the right to the assistance of counsel or attorney.(x) It should be observed, with respect to an assault by a man on a party endeavoring to dispossess him of his land, that where the injury is a mere breach of a close, in contemplation of law, the *defendant cannot justify a battery without [*1029 a request to depart; but it is otherwise where any actual violence is committed, as it is lawful in such case to oppose force to force: therefore, if a person break down the gate, or come into a close vi et armis, the owner need not request him to be gone, but may lay hands on him immediately; for it is but returning violence with violence.(y) If a person enters another's house with force and violence, the owner of the house may justify turning him out (using no more force than is necessary), without a previous request to depart: but if the person enters quietly, the other party cannot justify turning him out without a previous request.(z) For "there is a manifest distinction between endeavoring to turn a man out of a house or close, into which he has previously entered quietly, and resisting a forcible (x) See the remarks on this Act in Lewis v. Levy, E. B. & E. 537 (96 E. C. L. R.). (y) Green v. Goddard, 2 Salk. 641. In a case of this kind, however, it should seem that the violence must be considerable, and continuing, in order to justify the application of force by the owner, without some previous request to depart; at least, if the force applied be more than would be justified under a molliter manus imposuit; for in a case of assault and battery, where the defendant pleaded son assault demesne, and the plaintiff replied that he was possessed of a certain close, and that the defendant broke the gate and chased his horses in the close, and that he, for the defending his possession, molliter insultum fecit upon the defendant, the replication was adjudged to be bad; and that it should have been molliter manus imposuit, as the plaintiff could not justify an assault in defence of his possession: Leward v. Baseley, 1 Lord Raym. 62. (z) Tullay v. Reed, 1 C. & P. 6 (12 E C. L. R.), Park, J. A. J. Lew. 184, ante, p. 891; Wild's case, 2 Lew. 214, ante, p. 892. And see Meade's case, 1 1 Corey v. People, 45 Barb. 262; People v. Pool, 27 Cal. 572; Baldwin v. Hayden et al., 6 Conn. 453. It is held in one case that all necessary force may be used short of an actual striking: Watrous v. Steel, 4 Verm. 629. And in another case, that though an assault and battery may be justified in defence of possession, yet a wounding cannot; though it may be if the intruder commit an assault upon the possessor or his family, when the latter undertakes to remove him: Shain v. Markham, 4 J. J. Marsh. 578. Though a man may put another out of his house, who persists in remaining, yet he may not inflict a violent battery: State v. Lazarus, 1 Mill's Const. 12. On the trial of a defendant for an assault and battery, where there was contradictory evidence as to the degree of force used towards the defendant by the complainant, on the defendant's refusal to remove from the complainant's premises, after being requested to do so, the judge refused the prayer of the defendant to instruct the jury that if the complainant committed a battery on the defendant, it was not a proper kind of force to remove the defendant, and that the complainant thereby committed the first assault. But the judge instructed the jury that the complainant had a right, after requesting the defendant to remove and his refusal, to use proper and reasonable force to remove him, and that the jury must determine, from the testimony, how much and what kind of force the complainant used towards the defendant; and that if, in their opinion, he used more force than was necessary, or if the force was not appropriate and adapted to effect the purpose of removing the defendant, then they should consider the complainant as having committed the first assault; but if the jury considered the force thus used, as necessary and proper, and also appropriate and adapted to effect the purpose of removing the defendant, then the complainant would be justified and would not have committed the first assault: held, that the judge rightly refused the instructions requested, and that the instructions which he gave were conformable to the rules of law: Com. v. Clark, 2 Met. 23. On the trial of an indictment for an assault and battery, alleged to have been committed by firing a pistol bullet at the prosecutor, evidence having been introduced, on the part of the government, tending to prove the commission of the offence as charged, the defendant introduced evidence tending to prove that at the time of the supposed assault the prosecutor was at the front door of the defendant's house committing an offensive nuisance; that the defendant ordered him to go away, which he refused to do; that the defendant thereupon beat the prosecutor with the handle of a broom until the same was broken, when the defendant thrust at him with one of the pieces; and the defendant then went back into his house and returned with a pistol, but did not discharge the same: the jury having been instructed that the facts proved were no justification of the assault and battery," it was held that the instruction was erroneous; and that the facts should have been submitted to the jury with instructions as to what would and what would not amount to a justification: Comm. v. Goodwin, 3 Cush. 154. attempt to enter; in the first case a request is necessary; in the latter not."(a) So, if one come forcibly and take away another's goods, the owner may oppose him at once, for there is no time to make a request.() And the owner of goods (or his servant, acting by his command) which are wrongfully in the possession of another, may, after requesting him to deliver them up, justify an assault in order to repossess himself of them.(c) It seems also that a person who has a right of way or other easement may justify using so much force as may be necessary to enable him to exercise that right, or to prevent another from interrupting it.(d) But, in general, unless there be violence in the trespass, a party should not, either in defence of his person, or his real or personal property, begin by striking the trespasser, but should request him to depart or desist; and, if that is refused, should gently lay his hands upon him in the first instance, and not proceed with greater force than is made necessary by resistance.(e) Thus, where a churchwarden justified taking off the hat of a person who wore it in church, at the time of divine service, the plea stated, that he first requested the plaintiff to be uncovered, and that the plaintiff refused.(ƒ) And in all cases where the force used is justified, as not amounting to an assault, under the particular circumstance of the case, it must appear that it was not greater than was reasonably necessary to accomplish the lawful purpose intended to be effected.(g) Therefore, though an offer to strike the defendant, first made by the prosecutor, is a *sufficient assault by him to *1030] justify the defendant in striking, without waiting till the prosecutor had actually struck him first; yet even a prior assault will not justify a battery, if such battery be extreme; and it will be matter of evidence, whether the retaliation by the defendant were excessive, and out of all proportion to the necessity or provocation received. (h) The party injured may proceed against the defendant by action and indictment for the same assault; and the Court in which the action is brought will not compel him to make his election to pursue either the one or the other; for the fine to the King, upon the criminal prosecution, and the damages to the party in the civil action, are perfectly distinct in their natures,(i) but the Court of Queen's Bench have refused to sentence a party convicted of an assault, while an action was pending for the same assault.(k)1 It appears to have been formerly holden that a person could not be prosecuted upon one indictment for assaulting two persons, each assault being a distinct offence.(?) But the case has been subsequently treated as one which was not well considered; and the Court said, "Cannot the King call a man to account for a breach of the peace, because he broke two heads instead of one?"’(m) a (a) Polkinghorn v. Wright, 8 Q. B. 197 (55 E. C. L. R.). (b) Green v. Goddard, 2 Salk. 641. (c) Blades v. Higgs, 10 C. B. (N. S.) 713 (10) E. C. L. R.). (d) See the judgment of Patteson, J., in Bird v. Jones, 7 Q. B. 742 (53 E. C. L. R.); 2 Roll. Abr. Trespass, p. 547 (E.), pl. 1 & 2, which rests on 3 Hen. 4, 9, and 11 Hen. 6, 23. (e) Weaver v. Bush, 8 T. R. 78; 1 Selw. N. P. tit. "Assault and Battery," 39, 40. (f) Hawe v. Planner, 1 Saund. 13. (g) 1 East P. C. c. 8, s. 1, p. 406. (h) Bull. N. P. 18; 1 East P. C. c. 8, s. 1, p. 406. See ante, p. 1027. (i) Jones v. Clay, 1 Bos. & Pul. 191; 1 Selw. N. P. tit. "Assault and Battery," 27, note (2); 1 Hawk. P. C. c. 62, s. 4; Bac. Abr. tit. "Assault and Battery" (D). (k) Rex v. Mahon, 4 A. & E. 575 (31 E. C. L. R.), and see Ex parte note, and Reg. v. Gwilt, 11 A. & E. 587 (39 E. C. L. R.). (1) Rex v. Clendon, 2 Lord Raym. 1572; 2 Str. 870. (m) Per Cur. in Rex v. Benfield and Saunders, 2 Burr. 984. Gent, Ibid. 1 The prosecutor will not be compelled to elect, where a prosecution and a civil action have both been instituted for the same assault; nor will the court order the attorneygeneral to enter a nolle prosequi: State v. Frost, 1 Brev. 385; State v. Blyth, 1 Bay. 166. 2 There may be a count for an assault on two persons: Kenney v. State, 5 R. I. 385; State r. M Clintock, 8 Clarke 203. An indiscriminate assault upon several is an assault on each: State v. Merritt, Phill. (Law) 134. Two persons may commit an assault and battery each on the other at the same time, but each would be guilty of a several offence: State v. Lonon, 19 Ark. 577. If a man shoot at two persons, intending to kill one, but entirely regardless which, he may be convicted in one indictment charging a joint assault on both Comm. v. M'Laughlin, 12 Cush. 615. Where a count charged that the defendant made an assault upon one Henry Bennett," and "him the said William Bennett did beat," and other wrongs to the said William Bennett did," the Court of Queen's Bench held that the count was good.(n) As an assault is merely a misdemeanor, it is competent to the prosecutor to insert several counts in the same indictment for different assaults; and it has long been the constant practice to receive evidence of several assaults upon the same indictment;(0) for in offences inferior to felony the practice of quashing the indictment, or calling upon the prosecutor to elect on which charge he will proceed, does not exist.(p) Where an indictment consisted of two counts, one for riot, the other for an assault, and the grand jury only found it a true bill as to the count for an assault, and indorsed ignoramus on the count for a riot, a motion was made on the part of the prosecutor to quash it, on the ground that the grand jury should have found the whole to have been a true bill, or have rejected the indictment altogether; but the Court held, that as there were two distinct counts, the finding a true bill as to one count only, and rejecting the other, left the indictment, as to the count which the jury had affirmed, just as if there had originally been only that one count.(g) Whatever is a legal justification or excuse for an assault or imprisonment, such as son assault demesne, the arrest of a felon, *&c., may, upon an indictment, be given in evidence under the general issue.(r) [*1031 On an indictment against two defendants for committing an assault, the prosecutor proved an assault committed by one, with which the other had nothing to do, and it was urged that the latter was entitled to be acquitted, as an assault answering the description of that in the indictment had been proved, and, as there was only one count, more than one assault could not be proved; and it was held that the latter must be acquitted. It was then objected for the other defendant, that as the count was for a joint assault, this defendant could not be convicted of an assault by him alone, and that he only came prepared to answer that joint assault; and it was held that this defendant must be acquitted. If the indictment had charged that the defendants assaulted the prosecutor, the result might have been different; but here one specific assault is mentioned, and if they cannot be convicted of that, they must be acquitted.(s) And where on an indictment containing one count for an assault against two persons, an assault by one was proved, in which the other was not at all implicated, it was held that one assault to which the indictment was applicable having been proved, evidence of other assaults could not be gone into.(t) As every battery includes an assault, (u) it follows, that on an indictment of assault and battery, in which the assault is ill laid, if the defendant be found guilty of the battery it is sufficient. (v) Wherever a count for a misdemeanor contains a charge of assault accompanied with circumstances of greater or less aggravation, the jury may find the defendant (n) Reg. v. Crespin, 11 Q. B. 913 (63 E. C. L. R.). (0) 1 Chitt. C. L. 254; Reg. v. Davies, 5 Cox C. C. 328, ante, p. 928. (p) Ibid. (q) Rex v. Fieldhouse, Cowp. 325. (r) 1 Hawk. P. C. c. 62, s. 3; Bac. Abr. tit. "Assault and Battery :" 1 East P. C. c. 8, s. 1, p. 406, and c. 9, s. 1, p. 428. (8) Reg. v. Traughton, 1 Cox C. C. 197, Bullock. Comr., after consulting the Recorder. The latter ruling is clearly wrong; for it never yet was doubted that on a joint charge against two for any offence not requiring the participation of several, as conspiracy, &c, either might be convicted, though there was no evidence against the other; and the first point was decided on the ground that the assault proved did apply to the charge in the indictment. So that the two rulings are inconsistent with each other. (t) Reg. v. Gordon, 1 Cox C. C. 259, Bullock, Comr., after consulting the Recorder. This ruling is directly contrary to the second ruling in the last case. The point is not a question of law: it is merely a question for the discretion of the Court, and as any number of assaults may be tried under one indictment containing a count for each, there seems no good reason for confining the evidence on one count to the first assault that may happen to be proved: Stante v. Prickett, 1 Camp. 437, was cited in support of the objection. (u) Ante, p. 1021. (v) 1 Hawk. P. C. c. 62, s. 1. |