A Treatise on the Powers and Duties of the Justices of the Peace in the State

CHAPTER XXXV.

OF Tsnsrnss TO THE Pnasorr.

ASSAULT AND BA'l'1‘EB!. §606. Defense of possession. Notice of justiflcatlon. £602 Definition‘ §607. §603. General issue, action tor. F‘“'sE 1MPms°*“MENT §60-1. Evidence in. §608. Definition. 5605. Exemplary damages. 5609. Defense under general issue.

ASSAULT AND BATTERY.

§602. Definiti0n.—An assault is an attempt with force or violence to do corporeal injury to another, accompanied with such circumstances as denote at the time an intention, coupled with the present ability, of using actual violence. There need not be even a direct attempt at violence; but an indirect prepa

ration towards it, under the circumstances mentioned, such as

drawing a sword or bayonet, or even laying one’s hand upon his sword, would be sufficient.1 Riding after a person, and

obliging him to run away into a garden to avoid being beaten,

was holden to be an assault? Where a school-master took very

indecent liberties with a female scholar of thirteen, who did

not resist, but it was against her will, it was holden to be an

assault and battery? Making a female patient strip naked

under pretence that the defendant, a medical man, cannot if otherwise judge of her illness, he takes off her clothes, is an assault.‘ The intention of the party must co-operate with the act. to constitute an assault.“ If A lays his hand upon his I sword, and says to another, “If it were not assize time would

not take such language from you;” this is not an assault, be 1 1-3 Bla. Com., 120: Hayes v. Peo- 4-8. v. Roslnski, R. & M. C. C..

pie, 1 Hill, 351; Drew v. Comstock. 19. 57 Mich., 176; 23 N. W., 721. 5-It need not be a specific intent

2--Martin v. Shoppe, 3 C. 8: P. 373; against the person Injured. It is sut

Stephens v. Myers, 4 C. 8: P., 349. flcient it the intent was to unlawfully 8: 3—R. v. Nichols, 1 R. R. C. C.. injure another: Talmadge v. Smith, 130, 101 Mich., 870; 59 N. W., 658. 601 v § 602 iissauur AND BATTERY. CH. XXXV.

cause it is obvious he did not at the time intend to do him any corporeal ‘hurt!’ Mere words do not constitute an assaultf‘ A battery is any injury whatever, no matter how small, that is actually done to the person of another, in an angry, revenge ful, rude, or insolent manner, as by spitting in his face, or in any way touching him in anger, or violently jostling him out of the way, and the like.“ The least touching of another’s person wilfully or in anger is a battery.” If the act constitut ing the battery were done without due caution, or in a negli gent manner, it is a trespass, although the party had no design by it to do an injury to any person.1° "But when the act is inev itable, and the conduct of the defendant is without fault, it does not constitute a legal battery." If two persons are fighting, and one of them unintentionally strikes a third, he is answerable in trespass; and the absence of intention will avail only in mitigation of da.mages.1‘*’ If a man a ride an unruly horse, for the purpose of breaking it, in place much frequented by people, and the horse run away with the

rider, and run over a man and hurt him, trespass will lie. But

if under ordinary circumstances, a horse take fright, run away it with his rider, and run against a man, would not be a battery in the rider." The party first attacked cannot maintain this action against the other party, if he uses so much violence to

6-1 Saund.‘Pi. & Ev., 141; see, to the deed intended: People v. Lilley, 8: 5 Blake v. Barnard, 9 C. P., 626; 43 Mich., 521; N. W., 982; Nelson Regina v. St. George, Ibid., 483. v. Crawford, 122 Mich., 466; 81 N. 7—1 Russ. on Crimes, 750; Queen W., 335. V. Nun, 10 Mod. R., 187. An assault An intentional shooting a person is an inchoate violence to the person with a pistol loaded with ball is an of another,-with the present means of assault: People v. Mortimer. 48 Mich.. carrying the intent into effect. Threats 37: 11 N. W.. 776. Forcible resist are not sufilcient; there must be vio ance to an officer includes an assault:

lence actually offered within such a People v. Haley. 48 Mich., 495: 12

distance as that harm might ensue N. W.. 671 : People v. Warner, 53 Mich., if the party was not prevented. An 78: 18 N. W., 568. 2 act done with intent to commit an 8—1 Hawk, C.. $3 5" : Queen v. 6 is suflicient, if the purpose Cotesworth, Mod. F“ assault not ' 172: Ford v. 4 is abandoned or the party is prevented Skinner. C. & P.. 239; Purseli v. 8 from carrying out his purpose, while Horn, Ad. & E., 604. great to make an at a distance too 9-3 Blackstone's Com., 120. actual assault. An attempt to com 10-1 Archbold N. P., 378. mit violence although accompanied by

acts preparatory thereto. is not suf 11—Wakeman v. Robinson. 1 Blng.. ilcient to constitute an assault. There 213; Bullock v. Babcock. 3 Wend., 391. 5 must also be present ability to carry 12—.lames v. Campbell, C. & P., out the intent. and the act done must 372. be criminal and sufliciently proximate 13—Glbbon v. Pepper, 2 Saik.. 837. 602 CH. XXXV. ASSAULT AND BATTERY. § 603

the other, exceeding the bounds of self-defence, that he would not be justified under a plea of son assault demesne, were he the defendant.“ . Not only the person who actually committed the assault, but also all who ordered or incited him to commit the act, or procured it to be committed, and all present aiding or abetting

the commission of it, are liable.‘-" i

§603. General issue-the evidence under it.-Under this plea, the plaintiff must prove the assault and battery stated in

his declaration; the manner in which it was committed, the defendant’s conduct and expression, the degree of‘ violence used, and the extent of the injury. The day or place mentioned

in the declaration is immaterial; the plaintiff may give evidence

of an assault and battery. at any time or place." If there is but one count in the declaration, the plaintifi, after proving one assault will not be permitted to waive that and prove

another." So, when the action is against several for a joint trespass, after proving a trespass by some, the plaintiff will

not be allowed to prove another by all; or, after proving a trespass against some of them only." The injuries stated in the declaration are to be proved, and no other injury not set

forth in the declaration can be proved, if it might have been set forth. Under the words “other wrongs to the said plain tiff then and there did,” damages and matters which naturally 2 14—Elliott v. Brown, Wend.. 497. liable on the ground that he was a

15—Brltton v. Cole, 1 Salk, 408-0. looker-on and did not use active meas Any person who is present at the com ures to prevent the unlawful acts: mission of a trespass, encouraging or Miller v. Sweitzer. 22 Mich., 394-5. exciting the same by words, gestures, If one is sued for an assault in which looks, or signs. or who in any way several participate, it is compctent to or by any means countcnances or ap prove what the others, though not par proves the same, ls in law deemed to ties to the suit. did, that the jury be an alder and abetter, and liable as may judge whether the defendant was principal: and proof that a person acting concert with them, and as is present at the commission of a tres to whetierif he should be held for the pass, without disapproving or oppos whole damage: Miller v. Sweitzer, 22 ing it, is evidence from which, in con Mich., 391, & nection with other circumstances, it 16—1 Saund. Pi. Ev., 5 Am. ed.. is competent for the jury to infer that 152. That is within the statute of he assented thereto, lent to it his limitations.

countenance and approval, and was 17—Sante v. Pricket, 1 Camp., 471, thereby aiding and abetting the same. 473. a But if he is only spectator, innocent 1-‘1—Tait v. Harris, 6 C. & P., 73; 1 of any unlawful intent, and does not Tait v. llnrris. .\i. 6: R.. 282; Wynne 3 act to countenance or approve those v. Anderson, C. & P., 596. who are actors, he is not to be held 603 Q

§604 ASSAULT AND narmav. CH. XXXV.

arise from an assault, or cannot with decency be stated, may be proved." In a joint action against several, the damages cannot be sev ered so as to give more damages against one than the other; but a verdict may be given against all the defendants to the amount which the jury think the most guilty ought to pay?“ If separate suits are brought against the persons who com mitted the act, the plaintiif may recover separately against each, but he can have but one satisfaction; he has his election which judgment to collect, and the other wrong-doers will be obliged to pay the costs of the suit against them respectively.“ The plaintiif is not bound to prove the whole of the facts as stated in his declaration; proof of part will entitle him to a. recovery; thus the defendant may be found guilty of an assault only, though an assault and battery be stated.“

§ 604. Evidence in mitigation.-The defendant may give in evidence in mitigation of damages what was said at the time, to

19-1 Saund. Pi. 8: Ev., 153, 154. fendant, was greatly hindered and A permanent bodily infirmity caused prevented from doing and performing or aggravated by an assault and bat his work and bulness and looking tery, is properly provable, under a after and attending to his necessary declaration averring sickness and pain aflalrs and avocatlons for a long space to have been caused by the assault, of time," etc., it was sought to show and needs no other or fuller averment: that plaintiff was a farmer owning Johnson v. McKee, 27 Mich., 471. In a grass farm: that when assaulted he such a case the injured person's state was about half through cutting his ments concerning present feelings and hay: that he was bothered about help, sufferings are admissible in evidence, and, that the cutting was delayed be but his relations of past sufferings cause of his injury and that the crop would not be: Ibid., Johnson v. Mc of hay was damaged in consequence: Kee, 27 Mich., 471; see, Hyatt v. Ad held, that the allegations in the dec ams, 16 Mich., 200. In actions of laration were not sufllciently specific trespass, malice and attendant circum to cover this kind of damage. That stances may be proved in aggravation where the damages are such as do not of damages; and the rule is the same follow the injury as a necessary con where the facts in aggravation might sequence, they should be specifically have been made the ground of a sep alleged in the declaration: that this arate action: Druse v. \Vheeler, 22 is a rule of fairness, that the de Mich.. 439. Proof of a subsequent de fendant may know what case it is sire to settle is not relevant" upon intended to make against him, and be the question of original liability for prepared to meet it, if it is false or an assault, and does not disprove falsely colored: Ileiser v. Loomls, 47 malice at the time of its commission: Mich., 18-19: 10 N. W., 60. Johnson v. McKee, 27 Mich., 471. 20-Brown v. Allen, 4 Esp., 158: Special Dam-agcs.—-Where in an as Hill v. Goodchlld, 5 Burr., 2790. sault and battery case, the declara 21—Livingston v. Bishop, 1 Johns., tion averred, "that the plaintiff, be 290; Boardman v. Acer, 13 Mich., 77. cause of the wounds. bruises and 22—Buiier’s Nisi Prins, 94; lliott injuries inflicted on him by the de v. Van Buren, 33 Mich., 49. 604 Cu. XXXV. ASSAULT AND BATTERY. § 605

show the intention or object of the parties; for everything which passes is part of the transaction on which the plaintifl:"s action is founded.“ But the acts or declarations of the plain tiff, at a different time, or any antecedent facts which are not fairly to be considered as part of one and the same trans action, though they may have been ever so irritating and pro voking, are not admissible. The provocation must be so re cent and immediate as to induce a presumption that the vio lence done was committed under the immediate influence of the feelings and passions excited by it.“

§605. Exemplary da.mages.—The fact that the defendant had been indicted and fined, and the fine paid, would not pre vent the plaintiff from recovering exemplary damages; and it seems that such evidence is not admissible in mitigation, if the plaintiff object. In such a case the court say: “The recovery of such damages (exemplary) ought not to be made dependent on what has been done by way of criminal prosecution, any more than what may be done. Nor are we prepared to concede that either a fine, an imprisonment, or both, should be received in evidence to mitigate damages. True, if excluded, a double punishment may sometimes ensue; but the Preventive lies with the criminal rather than the civil courts. The former have ample power, if they but choose to exert it, of preventing any great injury from excess of punishment.”2°

23—1 Saund. Pi. & Ev., 156. But one who commits an act‘ of un Abusive and provoking language ut lawful force and thereby brings on a tered some days previous to an al conflict in which he assaults another, leged assault and battery, will not ex cannot Justify the assault by showing cuse or justify it. Such language that the person assailed was reputed addressed to the defendant or mem to be violent, and that he acted in bers of his family might sometimes self-defense: People v. Miller, 49 excuse an immediate assault and bat Mlch., 23; 12 N. W., 895. tery provoked thereby. or might au 24—Lee v. Woolsey, 19 Johns., 319; thorize the jury to deal leniently with see, Beardsley v. Maynard, 4 Wend., the defendant. But provoking words 338: Maynard v. Beardsley, 7 Ibkl, cannot be allowed as a justification 560. But in an action by husband for blows given after the blood has and wife for an assault upon the wife, had time and opportunity to cool: no act or words of the husband, un Heiser v. Loomis, 47 Mlch., 17; 10 less the wife was privy to and par N. W., 60. Insulting words will not ticlpated in them, can be proven in Justify an assault or battery: Goucher mitigation of damages: Everts v. v. Jamieson, 124 Mlch., 21; 82 N. W., Everts and wife, 3 Mlch., 580. 663. As to uncontrollable anger and 25—Cook v. Ellis, 6 liiil, 466. As excitement: See, People v. Mortimer, to exemplary damages, see, Allison v. 48 Mlch., 37: 11 N. W., 776; Welch Chandler, 11 Mlch., 542. Exemplary v. Ware, 32 Mlch., 77. damages are such added or increased 605 - § 606 .\ss.\L.'l.T AND BATTERY. CH. XXXV.

§ 606. Notice of defense of possession.—Upon this notice the defendant must prove, 1.—That at the time of the trespass he was in possession of the house mentioned in the plea, as by carrying on business, or living in the house.’-'6 2.——That the plaintiff was in the house at the time of the alleged assault. It seems to be immaterial whether he was making a noise or disturbance, as is usually stated in a notice, or not; for no man without authority by law can lawfully remain in the house or close of another after the occupier has required him to leave it; for although the plaintiff is in the house or close, by license of the defendant, by a request to leave it the license is deter mined, and the plaintiffs continuance there is illegal.” If, however, it were an inn, in which the public have a right to go and remain at proper hours, it would be different; for then it must be shown that the plaintiff was making a great noise and disturbance, or otherwise misbehaving himself, to justify the inn-keeper in turning him out.“ 3.—That before the as sault was committed, the defendant, or some person for him, requested the plaintiff to leave the house, and that the plaintiff refused to do so. If a person enter a house with force and violence, the person whose house is entered may turn him out (using no more force than is necessary) without previously requesting him to depart; but if the person enter quietly, such a request is necessary before he can be turned out."

damages as are allowed by reason oi.’ 888; Jastrzembski v. Marxhausen, 120 the aggravated character ot the injury Mich., 677; 79 N. W., 935. See, ante, consequent upon the peculiar circum § 472. stances of the case. Whether called 26-C00k’S Case, Cro. Car., 537: “exemplary," “punltory," “vindic Dean v. llogg, 10 Bing., 345; 1 Saund. tive," "compensatory“ or “added" Pl. & Ev., 158. damages the important question ls, 27—Jelly v. Bradley, 1 C. & M.. what is the character of the wrong 270; see, Scribner v. Beach, 4 Denio, suifered or of the injury sustained, and 448 if it can be compensated for in money 28—Archbold’s Nisl Prius, 384. what is the amount which will so com 29-Tullary v. Reed. 1 C. & P.. 62 pensate: Ross v. Leggett, 61 Mich., T\'envcr v. Bush, 8 Term. R., 78; 445; 28 N. W., 695. Further upon Scribner v. Beach. 4 Denio, 443.‘ But question of exemplary damages, more this no force must be uaedlthan is see. Elliott v. Van Buren, 33 Mich., reasonably necessary for the purpose: 49; Welch v. Ware, 32 Mich., 77; See, Com. v. Clark, 2 l\ietc., 23; Com. Scripps v. Reilly. 38 Mich., 10; Wat monwealth v. Goodwin, 3 Cush., 154. son v. Watson, 53 Mich., 168; 18 N. See, Phillips v. Jamieson. 51 Mich.. W., 605: Stilson v. Gibbs, 53 Mich., 153: 16 N. W., 318. An intruder with 280: 18 N. W., 815; Wilson v. Bowen, or without title cannot by getting a 64 Mich., 133; 31 N. W., 81; Bau foothold in a single room of a house mler v, Antiau, 65 Mich., 31; 31 N. W., in the peuceabie occupancy 01‘ another, 606 Cu. XXXV. F£\LSE IMPRISONMENT. § 607

§ 607. Notice of justifica.tion.—Under a notice that the plain tiff first assaulted the defendant, the defendant will be required to show that the plaintiff committed the first assault, and that it was such as to require the dcfendant’s self-defense and the consequent assault on the plaintifl. Every assault will not justify every battery; but it is matter of evidence wheter the assault was proportionatc- to the battery. It is necessary to prove an assault commensurate with the trespass sought to be justifiedfi" If a parent in a reasonable and proper manner chastise his child, or a master his servant, or a school-master his scholar; or if a man gently lay his hands on another, and thereby stay him from inciting a dog against a third person; or if I beat one who wrongfully endeavors with violence to dispossess me of my lands or goods, or of the goods of another delivered to me to be kept for him, and will not desist upon my laying my hands gently on him; or, if a man beats one who makes an assault upon the person of his wife, parent or child; in all these cases the party may justify,“ if the battery was not greater than was necessary; and in all these cases, notice of the defense must be given. So as to justification by authority of law, without or under legal process."

FALSE IMPRISONMENT.

§608. Definiti0n.—Every confinement of the person is an imprisonment, whether it be in a common prison or in a private house, or even by forcibly detaining one in the streets.” False imprisonment consists in such imprisonment without author ity.-“ This jurisdiction of the justice is seldom invoked. and then obstructing the occupants‘ 30-1 Saund. Pl. & Ev., 5 Am. ed., entry into the main structure, claim 156; Buiier‘s N. P., 18; Reece v. Tay that he has such a constructive pos lor, 4 N. & M., 470. The degree of session of the whole as will authorize force permisible in sell-defense must him to assault the occupant when re depend on circumstances: People v. moving the ebstructions: Soule v. Doe, 1 Mich., 451. Hough, 45 Mich.,418; 8 N. W., 50, 159. 31—Leeward v. Basilie, 1 Ld. Raym. See, People v. Adams, 52 Mich., 105; 62; Atkinson v. Crouch, 1 Salk., 407: 17 N. W., 715. A person will he jus 3 Salk., 47; Pond v. People, 8 Mich., tifled in using just suflicient force to 150. 176. protect his property and possession, 32-1 Chit. Pl., 10 Am. ed., 501. but no more: (‘arter v. Sutherland, 33—Archboid's N. P., 571. 52 Mich., 597: 18 N. W.. 375. See, 34—And such detention will be un Ayres v. Birtch, 35 Mich., 501. lawful unless there be sufllcient au 607 § 608 muss IMPRISONMENT. C11. X I\'.\' V.

Actions of this sort are usually brought in courts with more extended jurisdiction as to damages. thorlty for it, arising either from some Livingston v. Burroughs, 33 Mich., process of the courts of justice or 511; Colter V. Lower, 35 lnd., 285; 9 from some warrant of a legal ofllcer Am. Rep. 735; Rich. v. Mclnerny, 103 having power to commit under his hand Ala., 345; 15 $0.. 663; 49 Am. SL, 32. and seal, and expressing the cause of If an imprisonment is under legal commitment; or arising from some process, an action for false imprison other special cause sanctioned from ment cannot be sustained. An action the necessity of the thing, either by for malicious prosecution may be sus common law or by statute: Croweil tained if the prosecution was without v. Gleason, 10 Me., 325. Words are probable cause and malicious: Rich not usually sufiicient to constitute an v. Mcinerny, supra. An action for imprisonment: Fuller v. Bowker, 11 false imprisonment on an illegal arrest Mich., 212, 213. An actual manual in a civil action may be maintained arrest of the person is not necessary before the proceedings are terminated to constitute false imprisonment. A by a judgment: Josselyn v. Mc.-illis demonstration of physical violence, tcr. 22 Mich., 300. But a voluntary which to all appearance can only be going with an oflicer to a magistrate, avoided by submission, operates as ef without any declaration by the omcer fectually, if submitted to, as if the that he arrested him, would not be arrest had been forcibly accomplished: suflicient to constitute an imprison Brushaber v. Stegeman. 22 Mich., 260. ment; nor would the voluntary giving An arrest and an imprisonment exist of hail, where there had been in fact where a party submits to an arrest no arrest: nor the remaining in the without requiring the oflicer to resort county where the party had given to actual violence. The mildness of a void bond for the Jail limits: Fuller thedmprisonment only bears on the v. Bowker, 11 Mich., 204. In all cases amount of the damages: Josselyn v. of false imprisonment, the jury are en McAllister, 25 Mich., 45.! Though titled and required to give such gen manual seizure is not essential to an eral damages as they deem appropriate arrest yet there must be some sort of under the circumstances for the arrest personal coercion: Hill v. Taylor, 50 and detention, as well as any special Mich., 549: 15 N. W., 899. This ac damages which are fully proved, and tion will not lie, where the warrant is they are never confined to give sufliciently regular on its face to pro either nominal or special damages if tect the oilicer against one who made there has been a real personal injury, the complaint upon which the warrant and every deprivation of’ liberty is so issued. his attorney or the" oflicer him regarded: Page v. Mitchell, 13 Mich., self, though the magistrate may not 68: see, Teft v. Windsor, 17 Mich., have had the facts suiilclent to au 486. Where a party is arrested upon thorize its issue if he had jurisdiction a complaint and warrant which docs to issue the process if the showing not set forth any oifense known to the were suflicient: \\'heaton v. Beecher, law, the person making the complaint 49 Mich., 348; 13 N. W., 769; Hill v. is liable for false imprisonment, not Taylor, 50 Mich.. 549; 15 N. W., 899. withstanding he may have believed The action will not lie against one that there was just cause for making called by the sheriff to assist to make the complaint: and evidence that he an arrest, unless after being so com acted in good faith, supposing there manded he act wantonly; and this, was just cause for the prosecution, is though the sheriif is acting without no defense except to shield him from suflicient authority: Firestone v. exemplary damages. Exemplary dam Rico, 71 Mich., 377; 88 N. W.. 885. ages may be allowed when the defen So, where the complaint and warrant dant is guilty of fraud. malice, gross charge no offense, the qucstion of negligence or oppression: Livingston probable cause is wholly immaterial v. Burroughs. 33 Mich., 511. In an except upon the measure of damages: action for a false imprisonment, the 608 CH. XXXV. moss IMPRISONMENT. § 609

§609. Defense under the general issue.—The general issue is a sufiicient pica only when the defendant did not imprison the plaintifif; of any other defense notice must be specially given. recovery will not be limited to nomi gard to the proceedings, are receivable nal damages, because there is no aile as admissions against him to show gation or proof of special damages: malice; and all of his conversation with Josseiyn v. McAiiister, 22 Mlch., 300. and threats to the party arrested, in And in a case where exemplary dam advance of the arrest. should be re ages are allowable, they can only be ceived against him for the same pur measured by the sound discretion of pose: Josselyn v. McAllister, 25 Mlch., the jury. An averment in a declara 45; see. also, 22 Mlch., 300. When tion that an imprisonment of the plain a person is sued for false imprisonment tiff had been effected by means of for causing the arrest of another, he threats and violence, is a sufiicient has the right to show in mitigation of averment of malice to permit proof of damages the statements and informa it, and to justify a recovery or an ag tion upon which iie acted, and the gravation of damages on that ground: sources of that information, so that Bushaber v. Stegeman, 22 i\Iich., 266. the jury may judge of the good faith Where a person is sued for n malicious and care with which he acted: Liv arrest and false imprisonment, his ingston v. Burroughs, 83 Mlch., 511. statements made after the arrest, con 614. cerning his motives and doings in re

39 609