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CHAPTER III.

TRESPASS.

SECTION 13. CLASSIFICATION OF TRESPASSES.

The actions of "trespass" and "trespass on the case" have been compared in the previous chapter. It now remains to consider the various classes of wrongs which are redressed under each remedy. The wrongs for which trespass is the proper remedy will be taken up in the three succeeding chapters. Trespass may be divided into three general classes; trespass against the person, trespass against real property, and trespass against personal property.

Trespass against the person includes the actions for assault and battery, false imprisonment, and perhaps seduction,' and is considered in Chapter IV.

Trespass against real property, the basis of the old action of trespass quare clausum fregit, is taken up in Chapter V.

Chapter VI covers trespass against personal property in its two general forms of trespass which interferes with the possession of the property by its owner, and that which destroys or damages the property, without any assertion of the right of possession on the part of the wrong-doer.

There is some uncertainty as to whether the proper form of action for seduction should

be trespass or trespass on the

case.

CHAPTER IV.

TRESPASS AGAINST THE PERSON.

SECTION 14. IN GENERAL.

No wrong is more early recognized in the primitive state of the law than the wrongful application of force to the person. A large portion of every early code is occupied with provisions for the punishment of, or atonement for, such wrongs. The early connection between this species of torts and criminal law has been so often referred to in the previous chapters of this volume and under the subject of Legal History, as to render further discussion at this time unnecessary.

The various forms of trespass against the person will now be considered. The two most important species of this kind of trespass are assault and battery, and false imprisonment.

SECTION 15.

ASSAULT AND BATTERY.

Although the terms "assault" and "battery" are found, almost invariably, used in conjunction with each other, the two terms, nevertheless, designate two distinct torts. Every battery, however, must include an assault.2

An assault is any attempt or threat to use unlawful violence upon the person of another, coupled with a present ability to carry such threat into execution, and in the absence of circumstances which show that the party making the threats does not intend to carry them out.

A battery is an assault carried into execution.

Hunt vs. People, 55 Ill. App., 111. 'State vs. Cody, 94 Iowa, 169; 62

N. W., 702; Johnson vs. State, 17 Texas, 515.

Blackstone's definitions of assault and battery are as follows: "Assault: which is an attempt or offer to beat another, without touching him; as if one lifts up his cane, or his fist, in a threatening manner at another; or strikes at him, but misses him; this is an assault insultus which Finch describes to be 'an unlawful setting upon one's person.' This also is an 'inchoate violence,' amounting considerably higher than bare threats; and therefore, though no actual suffering is proved, yet the party injured may have redress by action of trespass vi et armis; wherein he shall recover damages as a compensation for the injury. * * * Battery: which is the unlawful beating of another. The least touching of another's person wilfully, or in anger, is a battery; 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 even the slightest manner.'

""

Some other definitions of assault are as follows: "An intentional attempt by force to do an injury to the person of another."5

"An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect."

"An intentional attempt to strike within striking

3 Greenleaf on Evidence, Sec. 59,
quoted in Sweden vs. State,
19 Ark., 205, 213 and in several
other decisions.

• 3 Cyc., 1020.

$ 3 Blackstone's Commentaries, p. 120.

It will be noticed that Blackstone's definition of assault is more restricted than the modern definitions.

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distance, which fails of its intended effect, either by preventive interference, or by misadventure."

"An attempt to strike in striking distance, or shoot in shooting distance." 8

Battery has been defined as follows: "A battery, or, as it is sometimes called, an assault and battery, is an unlawful touching of the person of another by the aggressor himself, or by any other substance put in motion by him."

"An unlawful touching of the person of any individual, in a rude or angry manner, without justification." 10

"An unlawful touching, in either a rude, an insolent or an angry manner.'

99 11

SECTION 16.

ASSAULT.

The essential elements in an assault are the threat, some exercise of force, the present ability to commit the battery, and the reasonable belief on the part of the party against whom the threat is made that it will be, or is likely to be carried out.

In every assault there must be a threat, but this threat may be, and in the great majority of cases is, by actions rather than by words. The necessary threat is in general included in the exercise of force, which is also a necessary element in an assault.

This force must be physical," mere words are never sufficient by themselves to constitute an assault." Thus, insulting language," refusal to leave land upon which the party is trespassing,15 or improper proposals

Lane vs. State, 85 Ala., 11, 14, 4 So., 730.

Gray vs. State, 63 Ala., 66, 73. 3 Cyc, 1021. 10 State

vs. 152 note.

Harden, 2 Speer,

1 State vs. Philley, 67 Ind., 307. Pockett vs. Pool, 11 Manitoba,

13 1 Hawkins, P. C., 6281; State vs.
Davis, 23 N. C., 125, 35 Am.
Dec., 735; Williams vs. State,
39 Miss., 521.

State vs. Milsaps, 82 N. C., 549.
15 Pockett vs. Pool, 11 Manitoba,

275.

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