defined.

$304. An assault is any willful and unlawful at- Assault tempt or offer, with force or violence, to do a corporal hurt to another.

See Hays v. People, 1 Hill, 351; 2 Bish. Cr. L., § 32; 3 Blackst. Comm., 120.

Intent to strike. An assault has also been said to be an intentional attempt, by violence, to do an injury to the person of another. It must be intentional. If there is no present purpose to do an injury, there is no assault. There must also be an attempt. A purpose not accompanied by an effort to carry it into immediate execution falls short of an assault. Thus no words can amount to an assault. But rushing towards another with menacing gestures and with a purpose to strike is an assault, though the accused is prevented from striking before he comes near enough to do so. State v. Davis, 1 Ired. (N. C.), 121.

But mere threatening gestures unaccompanied by such a purpose, although sufficient to cause a man of ordinary firmness to believe he was about to be struck, do not constitute an assault. Thus, when the defendant shook his whip at the prosecutor, saying, at the same time: "if you were not an old man I would knock you down." Held, no assault, unless the jury should be satisfied that there was a present purpose to strike. State v. Crow, 1 Ired. (N. C.), 375. To the same effect is Commonwealth v. Eyre, 1 Serg. & R., 347.

So where an ambassador exhibited a painting in the window of his house which gave offense to the crowd without, and defendant, among the crowd, fired a pistol at the painting at the very time when the ambassador and his servants were in the window to remove it, but did not intend to hurt any of them, and in fact did not. Held, that there being no intent to injure the person there could be no conviction for an assault. U. S. v. Hand, 2 Wash. C. C., 435.

But threatening another with a weapon, as a means of coercing him to yield to a demand, intending to strike if he refuses, but not to strike if he complies, is an assault, although the other party negotiates and no blow is finally given. It makes no difference that the purpose to commit violence is not absolute but only conditional. State v. Morgan, 3 Ired. (N. C.), 186.

And, in general, it is an assault to present a pistol which purports to be loaded at another person, so near as would endanger life if it were fired, although the pistol is not, in fact, loaded. State v. Smith, 2 Humph., 457. Rex v. Parfait, Lach., 23; East. P. C., 416; Rex v. Thomas, Lach., 272; East. P. C., 417; also, Morgan v. State, 33 Ala., 413, where it is held that the presenting a pistol loaded and cocked, although with the finger on the trig

Battery defined.

Use of force

or violence declared not unlawful in certain cases.

ger, and in an angry manner, does not of itself raise a presumption of an intent to murder, but is a common assault.

Consent. In general, if the party suffering the violence has consented to it, there is no assault. Thus, although a child of tender years cannot legally consent to a rape upon her, yet she may consent to an attempt to commit it; and such an attempt, if committed with her consent, is not an assault. Rey v. Cockburn, 3 Cox Cr. Cas., 543; Rey v. Read, 2 Carr. & K., 957; 3 Cox Cr. Cas., 266; 1 Den. C. C., 377; Rex v. Wehegan, 7 Cox Cr. Cas., 145. But there must be actual consent. Mere omission to resist is not enough. Reg. v. McGavaran, 6 Cox Cr. Cas., 64.

And where a medical man to whom a girl of fourteen years of age was sent for professional advice had criminal connection with her, she making no resistance, from a bona fide belief that the defendant was treating her medically, as he represented he was doing. Held, he was properly convicted of an assault, and might have been of rape. Reg. v. Case, 4 Cox Cr. Cas., 220; 1 Den. C. C., 580.

S 305. A battery is any willful and unlawful use of force or violence upon the person of another.

$306. To use or attempt or offer to use force or violence upon or towards the person of another is not unlawful in the following cases:

1. When necessarily committed by a public officer in the performance of any legal duty; or by any other person assisting him or acting by his direction

2. When necessarily committed by any person in arresting one who has committed any felony, and delivering him to a public officer competent to receive him in custody;

3. When committed either by the party about to be injured or by any other person in his aid or defense, in preventing or attempting to prevent an offense against his person, or any trespass or other unlawful interference with real or personal property in his lawful possession; provided the force or violence used is not more than sufficient to prevent such offense;

4. When committed by a parent or the authorized agent of any parent, or by any guardian, master, or

teacher, in the exercise of a lawful authority to restrain or correct his child, ward, apprentice or scholar; provided restraint or correction has been rendered necessary by the misconduct of such child, ward, apprentice or scholar, or by his refusal to obey the lawful command of such parent, or authorized agent or guardian, master or teacher, and the force or violence used is reasonable in manner and moderate in degree;

5. When committed by a carrier of passengers, or the authorized agents or servants of such carrier, or by any person assisting them, at their request, in expelling from any carriage, railroad car, vessel or other vehicle, any passenger who refuses to obey a lawful and reasonable regulation prescribed for the conduct of passengers; if such vehicle has first been stopped and the force or violence used is not more than is sufficient to expel the offending passenger, with a reasonable regard to his personal safety;

6. When committed by any person in preventing an idiot, lunatic, insane person or other person of unsound mind, including persons temporarily or partially deprived of reason, from committing an act dangerous to himself or to another, or in enforcing such restraint as is necessary for the protection of his person or for his restoration to health; during such period only as shall be necessary to obtain legal authority for the restraint or custody of his person.

Subd. 2. Supported by People v. Adler, 3 Park. Cr., 249; People v. Wolven, 7 N. Y. Leg. Obs., 89; People v. McArdle, 1 Wheel. Cr., 101.

Subd. 3. Corresponds with the provisions relative to resistance to prevent offenses, reported in Rep. Code Cr. Pro., §§ 60-62; except that the provision has been enlarged to embrace resistance to trespasses upon real property.

Subd. 4. It was held in Hernandez v. Carnobeli (4 Duer, 642; S. C., 10 How. Pr., 433), that the authorized agent of a father was not liable to a civil action for assault and battery for force necessarily used in conveying a son from this country back to his father in Cuba. But, in People v. Philips (1 Wheel. Cr., 155), it was held that the right

Punish

ment of

assault or assault and battery.

Assaults with dan

gerous weapons, &c.

of a master to chastise his apprentice is strictly personal, the master cannot direct or permit another person to chastise the apprentice for any offense whatever. In the light of these cases the Commissioners have drafted the section in the text in such a form as to recognize the right of a parent, whether father or mother, to delegate the power to restrain, and also the power to chastise, if indeed it is considered that any distinction exists between the two, while the similar power of a guardian or teacher is placed upon the same ground with that of the master of an apprentice. Upon this subject the general rule is that when a teacher, inflicting punishment upon his pupil, goes beyond the limit of moderate castigation, and either in mode or degree is guilty of unreasonable or disproportionate violence, he is liable to a prosecution for assault and battery. And it is not necessary to show actual passion or vindictive feeling. The criminal intent is inferred from the nature of the act. Commonwealth v. Randall, 4 Gray, 36.

Subd. 5. See People v. Jillson, 3 Park. Cr., 234; Hibbard v. New York & Erie R. R. Co., 15 N. Y., 455. In Sanford v. Eighth Avenue R. R. Co. (23 N. Y., 243), it was said that the right to expel a passenger from a railroad car cannot be exercised without first stopping the car. Though the language used in the opinion seems more directly applicable to cars propelled by steam, yet as the car, in the particular case before the court, was a city railroad car, drawn by horses, the Commissioners have regarded the condition that the vehicle or carriago must be stopped before the offending passenger can be ejected as applicable in all cases.

As to whether, after the refusal of a passenger to produce his ticket or pay his fare, on alighting from a railway carriage, he can be compelled to proceed by train to the principal station on the line, to be there dealt with by the authorities of the company, see Reg. v. Mann, 6 Cox Cr. Cas., 461; S. C., 23 L. T., 12.

$ 307. Assault or assault and battery is punishable by imprisonment in a county jail not exceeding one year, or by fine not exceeding one thousand dollars, or both.

This is an increase in severity of punishment as compared with that inflicted under the existing laws. The frequency and aggravation of instances of violence to the person which have been observed during the past few years require that a more stringent punishment be affixed to the offense.

S 308. Every person who, with intent to do bodily harm, and without just cause or excuse commits any

assault upon the person of another with any sharp or dangerous weapon, or who without such cause shoots or attempts to shoot at another with any kind of fire-arms, or air-gun, or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in a state prison not exceeding five years, or by imprisonment in a county jail not exceeding one year.

See Laws of 1854, ch. 74, § 1.

CHAPTER X.

LIBEL.

SECTION 309. Libel defined.

310. Libel a misdemeanor.

311. Malice presumed.

312. Truth may be given in evidence.

313. Publication defined.

314. Liability of editors and others.

315. Publishing a true report of public official proceedings

privileged.

316. Extent of the privilege.

317. Other privileged communications.

318. Threatening to publish a libel.

fined.

S309. Any malicious publication, by writing, print- Libel de ing, picture, effigy, sign or otherwise, which exposes any person, or the memory of any person deceased, to hatred, contempt, ridicule or obloquy, or which causes any person to be shunned or avoided, or which has a tendency to injure any person or corporation or association of persons, in their occupation or business, is a libel.

This definition the commissioners think is broad enough to embrace all the particulars of a definition of libel at common law. 4 Bl. Com., 150; Fost & F, 149; 2 Id., 524; Indian Penal Code, § 499, et seq; 2 Kent's Com., 16; Whart Cr. L., 2d ed., 735.

demeanor.

S 310. Every person who willfully, and with a Libel a mis malicious intent to injure another, publishes any libel, is guilty of a misdemeanor.