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.