mean time he should keep him safely in his custody. 2 Hale, 120. And the same, where the arrest is by a private person, under a warrant. But if the arrest be by a private person, without warrant, he may deliver the party to a constable, or he may take him to the common gaol, or before a justice of the peace. 1 Hale, 589. And the party arrested should not be treated with any unnecessary harshness, beyond what is actually necessary for his safe custody; and therefore it has been holden, that a constable has no right to handcuff a person whom he has apprehended on a suspicion of felony, unless he have attempted to escape, or it be necessary to prevent him from escaping. Wright v. Court, supra. ARSON. See "Burning." ASSAULT. 1. Common assault and battery, p. 133. 2. Summary conviction for a common assault, p. 135. 3. Assaults in particular cases, p. 139. upon justices, &c. in cases of wreck, p. 139. upon peace or revenue-officers, p. 139. to prevent apprehension, p. 141. to prevent seamen or keelmen, &c. from working, p. 141. to prevent the free sale or conveyance of grain, p. 142. in pursuance of conspiracy to raise wages, p. 142. 4. Other assaults, p. 142. assault with intent to commit a felony, p. 142. 5. Conviction for an assault, upon a prosecution for a felony, p. 144. 1.-Common Assault and Battery. What.] An assault is an attempt to do a personal injury to another. An attempt to rob another, an attempt to commit a rape, an attempt to have carnal knowledge of a girl under ten years of age, and the like, are called assaults. But in its usual and restricted sense, a common assault means an attempt or offer, with force and violence, to do a corporal hurt to another as by striking at him, with or without a weapon; or presenting a gun at him, at a distance to which the gun will carry, provided it be so loaded that it can be discharged; R. v. James, 1 Car. & K. 530; or pointing a pitchfork at him, whilst standing within the reach of it; or holding up one's fist at him; or by any other rash act, done in an angry or threatening manner. 1 Hawk. c. 62, s. 1. So, riding towards a man with intent to do him a corporal injury, so that he was obliged to run away to avoid it, was holden by Lord Tenterden, C. J. to be an assault. Martin v. Shoppee, 3 Car. & P. 373. So, where it was proved that A. advanced in a threatening attitude with an intention to strike B. so that his blow would almost immediately have reached B. if he had not been stopped; Tindal, C. J. held that this was an assault in point of law, although it appeared that at the particular moment when A. was stopped, he was not near enough for his blow to take effect. Stephens v. Myers, 4 Car. & P. 349. A battery is an injury, however small, actually done to the person of another, in an angry, revengeful, rude, or insolent manner, as by spitting in his face, or in any way touching him in anger, violently jostling him out of the way, or the like. 1 Hawk. c. 62, s. 2. But it is no battery, to lay one's hand gently on another, against whom an officer has a warrant, and to tell the officer this is the man he seeks; 1 Hawk. c. 62, s. 2; or to lay one's hand on a man, if it be necessary to do so, in order to serve him with process. Harrison v. Hodgson, 10 B. & C. 445. Or, if a horse, being suddenly frightened, run away with a man, without his fault, and run against and injure another man, this is no assault in the rider, for which even a civil action could be maintained. Gibbon v. Pepper, 1 L. Raym. 38, 2 Salk. 637. So, if an officer, having a warrant against a man, who will not suffer himself to be arrested, beat or wound him in an attempt to take him; or, if a parent in a reasonable manner chastise his child, or a master his servant, or a schoolmaster his scholar, or a gaoler his prisoner; or, if one confine a friend who is insane, and bind or beat him, in such a manner as is proper in his circumstances; or, if a man force a sword from one, who threatens to kill another therewith; or, if a man gently lay his hand upon another, and thereby stay him from inciting a dog against a third person; or, if I beat one (without wounding him, or throwing at him a dangerous weapon,) who wrongfully endeavours with violence to dispossess me of my lands or goods, or the goods of another delivered to me for safe custody, and will not desist upon my laying my hand gently on him and disturbing him; or, if a man beat or (as some say) wound or maim one, who makes an assault upon him, or upon his wife, parent, child or master, especially if it appear that he did all he could to avoid fighting before he gave the wound; or, if a man fight with or beat one who attempts to kill a stranger: these and the like are not deemed breaches of the peace, 1 Hawk. c. 60, s. 3, and the defendant in such cases may justify the battery, by giving the special circumstances in evidence under the plea of not guilty. Id. c. 62, s. 3. But if two parties go out for the purpose of fighting with their fists, and they strike one another, they are each of them guilty of an assault, and it is quite immaterial which of them struck the first blow. Per Coleridge, J. in R. v. Lewis, 1 Car. & K. 419. So, where it appeared that the defendant, although he at first struck in his defence, afterwards continued to strike the prosecutor from revenge, after the necessity for it had ceased, he was holden guilty of an assault and battery. R. v. Driscoll, 1 Car. & M. 214. Where an excise-officer gave a man a search warrant to look at, who refused to deliver it back to him, and a scuffle ensued on an indictment for an assault, Lord Tenterden left it to the jury to say, whether the officer had used more force than was necessary to recover possession of the warrant. R. v. Milton, Moody & M. 107. If a man conduct himself in a disorderly manner in a public house, and upon the landlord's requesting him to depart, he refuse to do so, the landlord is justified in laying hands upon him to put him out, Howell v. Jackson, 6 Car. & P. 723. Moriarty v. Brooks, Id. 684. The punishment for a common assault and battery, when the party is prosecuted by indictment, is, fine or imprisonment, or both; and the defendant may be ordered to find sureties for keeping the peace. at, unlawfully did assault and beat one C. D. And you the said keeper, &c. 2. Summary Conviction for a Common Assault. In what cases.] By stat. 9 G. 4, c. 31, s. 27, reciting that it is expedient that a summary power of punishing persons for common assaults and batteries should be provided under the limitations thereinafter mentioned, it is enacted that "where any person shall unlawfully assault or beat any other person, it shall be lawful for two justices of the peace, upon complaint of the party aggrieved, to hear and determine such offence; and the offender, upon conviction thereof before them, shall forfeit and pay such fine as shall appear to them to be meet, not exceeding, together with costs (if ordered), the sum of 51." Provided "that nothing herein contained shall authorize any justices of the peace to hear and determine any case of as sault or battery, in which any question shall arise as to the title to any lands, tenements or hereditaments, or any interest therein or accruing therefrom, or as to any bankruptcy or insolvency, or any execution under the process of any court of justice." Id. s. 29. Provided also, "that in case the justices shall find the assault or battery complained of to have been accompanied by any attempt to commit felony, or shall be of opinion that the same is, from any other circumstance, a fit subject for a prosecution by indictment, they shall abstain from any adjudication thereupon, and shall deal with the case in all respects in the same manner as they would have done before the passing of this act." Id. s. 29. And by stat. 5 & 6 W. 4, c. 19, s. 38, reciting the above provisions, and that it was expedient that they should be extended to similar offences committed on board merchant ships, it was enacted that in case of any assault or battery, which shall be committed "on board any merchant ship belonging to any subject of the United Kingdom, in any place at sea or out of His Majesty's dominions, it shall be lawful for any two justices of the peace in any part of His Majesty's dominions, upon complaint of the party aggrieved, to hear and determine any such complaint, and to proceed and make such adjudication thereon, as by the said act any two justices are empowered to do, subject however to such provisions and limitations as are contained in the said act with respect to the cases of assault and battery therein mentioned; and the fine or forfeiture to be imposed in any such case, shall be payable to the merchant seamen's hospital or institution at or nearest to the port or place where such adjudication shall be made." Where the act done appeared from the depositions to have been committed with an unnatural intent, but not to have been attended with violence; and an application was therefore made for a certiorari to remove the conviction, for the purpose of having it quashed, on the ground that the offence was not within the above stat. 9 G. 4, c. 31: the court said that they could not interfere, as no want or excess of jurisdiction appeared upon the face of the conviction; and the evidence, of which the magistrates were in their discretion to judge, did not show clearly an intention to commit felony. Anon. 1 B. & Ad. 382. Proceedings.] The charge must be made on oath; it may be made to one justice of the peace, and he may thereupon issue his summons for the party's attendance before two justices. 9 G. 4, c. 31, s. 33. If the party attend, the justices may then proceed to hear and determine the complaint. If he do not attend, then, "upon proof of the due service of the summons upon such person, the justices may either proceed to hear and determine the case ex parte, or may issue their warrant for apprehending such person and bringing him before them; or, the justice before whom the charge shall be made, may, if he shall so think fit, issue such warrant in the first instance, without any previous summons." Id. The prosecution must be commenced [that is, the charge must be made] within three calendar months after the commission of the offence. Id. s. 34. If the justices, upon the hearing of the case, "shall deem the offence not to be proved, or shall find the assault or battery to have been justified, or so trifling as not to merit any punishment, and shall accordingly dismiss the complaint, they shall forthwith make out a certificate under their hands, stating the fact of such dismissal, and shall deliver such certificate to the party against whom the complaint was preferred." Id. s. 27. And such certificate, or (if the party be convicted) his paying the penalty or undergoing the punishment, shall be a bar to all other proceedings, civil or criminal, for the same offence. Id. s. 28. See Harding v. King, 6 Car. & P. 427. The following may be the form of the certificate:: at day of at Whereas A. B., of, in the county of Berks, labourer, heretofore, on the - in the year of our Lord —, came before J. P. one of Her Majesty's justices of the peace for the said county of Berks, and complained to and informed the said J. P., that C. D. of, in the county aforesaid, labourer, on did unlawfully assault and beat him the said A. B.; and whereas the said C. D. being duly summoned to answer the said charge, appeared before us, two of Her Majesty's justices of the peace for the county aforesaid, and the said A. B. also then and there attended before us for the purpose of proving the offence charged upon the said C. D. in and by the said complaint: We the said justices do hereby certify, that having heard what the said A. B. had to allege in that behalf, and the evidence adduced by him in proof of the said offence, and having also heard what the said C. D. then and there alleged in his defence, and it manifestly appearing to us ["that the said C. D. was not guilty of the assault and battery charged upon him in and by the said complaint," or "that the said C. D. was lawfully justified in the committing of the assault and battery charged upon him, in and by the said complaint," or "that the assault and battery proved, was so trifling, as not to merit any punishment."] We thereupon then and there dismissed the said complaint. Given under our hands, the in the year of our Lord day of E. F. |