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an assault, where it is not presented, and there is no attempt to use it. And it has also been held that it is not an assault to merely pick up a stone without making any offer or attempt to throw it.82 But, on the other hand, it has been held to be an assault to draw a pistol in a threatening manner,38 or when accompanied by threats to use it on the person threatened,34 or even to reach for or to attempt to draw 36 a pistol, or to draw or exhibit a knife.87 And it has been held to be an assault to take a gun from a rack under circumstances indicating an intention to use it immediately,38 or to approach a person with a rock and stick drawn in a striking attitude, when accompanied by threatening language.89

32 Picking up a stone at a distance of twenty yards from a person, without making any offer or attempt to throw it, is not an assault. Brown v. State, 95 Ga. 481, 20 S. E. 495.

Nor is picking up a stone at a distance of twelve feet from the prosecutor, though accompanied by the use of insulting language. State v. Milsaps, 82 N. C. 549.

33 State v. Sullivan, 43 S. C. 205, 21 S. E. 4; State v. Smith, 2 Humph. (21 Tenn.) 457.

34 Johnson v. State, 132 Ark. 128, 200 S. W. 982; People v. McMakin, 8 Cal. 547; State v. Church, 63 N. C. 15; State v. McFadden, 42 Wash. 1, 84 Pac. 401.

Where five persons, one of whom has a manure fork, another a hoe and another a gun, advance upon and threaten another, there is an assault though the gun and other weapons are not taken from the shoulders of

the persons carrying them. State v. Rawles, 65 N. C. 334.

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was stopped by the act of the prosecutor in drawing a pistol, it was held that he was guilty of an assault. Brister v. State, 40 Tex. Cr. 505, 51 S. W. 393.

36 Taking hold of a cocked pistol in one's pocket and attempting to draw it, is an assault. Clark v. State,

Okla. Cr., 106 Pac. 803.

37 State v. Daniel, 136 N. C. 571, 48 S. E. 544, 103 Am. St. Rep. 970.

Where two persons advance upon another with knives, making threats, and the latter leaves to avoid the danger, there is an assault though the knives are not open. State v. Shipman, 81 N. C. 513.

Where the prosecutor was attempting to eject the defendant from his premises, and the defendant put his hand in his pocket and partly drew out a knife, as a result of which the prosecutor desisted from his efforts, it was held that there was an assault. State v. Marsteller, 84 N. C. 726. 38 Higginbotham v. State, 23 Tex. 574.

39 Under the Texas statute providing that any threatening gesture showing in itself or by words accompanying it, an immediate intention, coupled with ability to commit a battery. Haverbekken v. State, 86 Tex. Cr. 260, 216 S. W. 397.

41

Pointing, aiming or presenting a firearm at another,40 or drawing a fire arm or other dangerous or deadly weapon on another are specifically punished as separate offenses in some of the states.

§ 395. Definition and nature of battery. Any unlawful injury or violence actually done to the person of another is a battery.42 Battery is sometimes defined by statute as any wilful and unlawful use of force or violence upon the person of another,48 or as the use of any unlawful force upon the person of another with intent to injure him, or as the unlawful beating of another.45

44

Battery is the carrying out of the intent involved in an assault by the actual infliction of the injury.46 And when an assault culminates

40 See § 415, infra.

41 See § 416, infra.

421 Hawk. P. C. c. 15, § 2; State v. Wyatt, 4 Boyce, (27 Del.) 473, 89 Atl. 217.

Any violence committed on the person of another with intent to injure him. Cox v. State, 99 Ark. 90, 136 S. W. 989.

"The unlawful and unjustifiable use of force and violence upon the person of another." Com. v. McKie, 1 Gray (Mass.) 61, 61 Am. Dec. 410.

Intentionally and wrongfully inflicting personal injury upon another against his will by violence. Brown v. State, 118 Ala. 111, 23 So. 81.

A battery is committed whenever there is a wrongful violence inflicted upon the person of another without his consent. Murdock v. State, 65 Ala. 520.

Under some definitions the touching must be in a rude, insolent or angry manner. See § 396, infra.

43 People v. Munn, 65 Cal. 211, 3 Pac. 650; People v. Helbing, 61 Cal. 620; State v. Crawford, 32 Idaho 165, 179 Pac. 511; State v. Magill, 19 N. D. 131, 122 N. W. 330, 22 L. R. A. (N. S.) 666; State v. Cruikshank, 13 N. D. 337, 100 N. W. 697; State v. Climie, 12 N. D. 33, 94 N. W. 574;

Harris v. State, 15 Okla. Cr. 369, 177 Pac. 122; Parks v. State, 14 Okla. Cr. 413, 171 Pac. 1129.

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44 Perkins Bros. Co. v. Anderson, Tex. Civ. App. 155 S. W. 556; McCraw v. State, 73 Tex. Cr. 45, 163 S. W. 967; Ely v. State, 68 Tex. Cr. 562, 152. S. W. 631; Gage v. State, 68 Tex. Cr. 303, 151 S. W. 565.

45 State v. Cody, 94 Iowa 169, 62 N. W. 702.

"The unlawful striking or beating of the person of another." Jones v. State, 100 Ark. 195, 139 S. W. 1126.

"Unlawful beating," as used in the statute, means the same as battery at common law. Laying hands on another in anger is a beating. Hunt v. People, 53 Ill. App. 111.

"To beat, in a legal sense, is not merely to whip, wound, or hurt, but includes any unlawful imposition of the hand or arm." Goodrum v. State, 60 Ga. 509; Lowry v. State, 8 Ga. App. 379, 69 S. E. 34.

46 State v. Brittingham, 2 Boyce (25 Del.) 330, 80 Atl. 242; State v. Lewis, 4 Pennew. (Del.) 332, 55 Atl. 3; Luther v. State, 177 Ind. 619, 98 N. E. 640.

"A battery is committed whenever the violence menaced in an assault is actually done, though in

in a battery, the offense is assault and battery.47 Every battery includes an assault, so that on a indictment for assault and battery one may be convicted of an assault only.48 But an assault does not necessarily include a battery, and there cannot be a conviction for assault and battery under an indictment which merely charges an assault.49

§ 396. Acts amounting to a battery or assault and battery-In general. To strike another with the fist, or with a stick or stone, to

ever so small a degree, upon the person.'' Sweeden v. State, 19 Ark.

205.

47 Harris v. State, 15 Okla. Cr. 369, 177 Pac. 122.

481 Hawk. P. C., c. 15, § 2. See also the following decisions: United States. Anderson v. Crawford, 265 Fed. 504.

Alabama. Jacobi v. State, 133 Ala. 1, 32 So. 158.

Arkansas. Jones v. State, 100 Ark. 195, 139 S. W. 1126; Sweeden V. State, 19 Ark. 205.

California. People v. McDaniels, 137 Cal. 192, 69 Pac. 1006, 59 L. R. A. 578, 92 Am. St. Rep. 81; People v. Helbing, 61 Cal. 620.

Delaware. State v. Handy (Del.), 66 Atl. 336; State v. Mills, 3 Pennew. (Del.) 508, 52 Atl. 266.

Indiana. Kirland v. State, 43 Ind. 146, 13 Am. Rep. 386.

Iowa. State v. Cody, 94 Iowa 169, 62 N. W. 702.

Kentucky. Furnish v. Com., 14 Bush. (77 Ky.) 180.

Minnesota. Greenman v. Smith, 20 Minn. (Gil. 370) 418.

Mississippi. Montgomery v. State, 85 Miss. 330, 37 So. 835.

North Dakota. State v. Climie, 12 N. D. 33, 94 N. W. 574.

Oklahoma. Harris v. State, 15 Okla. Cr. 369, 177 Pac. 122; Parks v. State, 14 Okla. Cr. 413, 171 Pac. 1129. Pennsylvania. Com. v. Bergdoll, 55 Pa. Super. Ct. 186.

Texas. Johnson v. State, 17 Tex. 515; Norton v. State, 14 Tex. 387. Virginia. Hardy v. Com., 17 Gratt

592.

49 United States. Anderson V. Crawford, 265 Fed. 504.

Arkansas. Johnson v. State, 132 Ark. 128, 200 S. W. 982; Jones v. State, 100 Ark. 195, 139 S. W. 1126; Bryant v. State, 41 Ark. 359; Sweeden v. State, 19 Ark. 205.

California. People v. McDaniels, 137 Cal. 192, 69 Pac. 1006, 59 L. R. A. 578, 92 Am. St. Rep. 81; People v. Helbing, 61 Cal. 620.

Colorado. People v. Hopper, 69 Colo. 124, 169 Pac. 152.

Illinois. People v. Johnson, 147 Ill. App. 86; Moore v. People, 26 Ill. App. 137; Young v. People, 6 Ill. App. 434. Kentucky. Furnish v. Com., 14 Bush. (77 Ky.) 180.

Michigan. Turner V. Muskegon Circuit Judge, 88 Mich. 359, 50 N. W. 310.

Mississippi. Montgomery v. State, 85 Miss. 330, 37 So. 835.

Nebraska. Alyea v. State, 62 Neb. 143, 86 N. W. 1066.

North Dakota. State v. Marcks, 3 N. D. 532, 58 N. W. 25.

Oklahoma. Harris v. State, 15 Okla. Cr. 369, 177 Pac. 122; Parks v. State, 14 Okla. Cr. 413, 171 Pac. 1129.

Texas. Shuffield v. State, 62 Tex Cr. 556, 138 S. W. 402.

cut him with a knife, or to shoot him, are clear cases of battery.50 But it is not necessary that the injury shall be so serious as this. Generally the least wilful and unlawful touching of another person is sufficient,51 although under some definitions the touching must be in a rude, insolent, or angry manner.52 It is not necessary that the person assaulted be actually injured or hurt,58 and, according to the weight of authority, he need not even know that he has been assaulted.54 But some force must be actually applied to the person of another, or to some article so closely connected with his person as to be a part of it.55 And merely shooting at another without hitting him is not a battery or an assault and battery,56 though it may amount to an assault.57

§ 397. Particular acts. An assault and battery may be committed by taking indecent liberties with a girl or woman without her consent,58 or even by intentionally laying hands on her,59 or by admin

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Texas. Johnson v. State, 17 Tex. 515; Ward v. State, 68 Tex. Cr. 154, 151 S. W. 1073; Donaldson v. State, 10 Tex. App. 307.

Wisconsin. State v. Lewis, 113 Wis. 391, 89 N. W. 143.

At common law any unlawful touching another against his will with intent to injure constitutes a battery. Ross v. State, 16 Wyo. 285, 93 Pac. 299, 94 Pac. 217.

Laying hands on another in anger is a battery, Hunt v. People, 53 Ill. App. 111; and so is seizing a policeman's arm in anger, Brantley v.

State, 10 Ga. App. 24, 72 S. E. 520;
or seizing another and coercing and
restraining him from doing what he
has a right to do. Wilson v. State, -
Tex. Cr.
74 S. W. 315.

52 Hyde v. Cain, 159 Ala. 364, 47 So. 1014; Jacobi v. State, 133 Ala. 1, 32 So. 158; Alston v. State, 109 Ala. '51, 20 So. 81; McGee v. State, 4 Ala. App. 54, 58 So. 1008; State v. Mills, 3 Pennew. (Del.) 508, 52 Atl. 266; House v. State, 186 Ind. 593, 117 N. E. 647; Howard v. State, 67 Ind. 401; Chacon v. Territory, 7 N. M. 241, 34 Pac. 448; Ross v. State, 16 Wyo. 285, 93 Pac. 299, 94 Pac. 217.

53 United States v. Reeves, 38 Fed. 404; Brown v. State, 118 Ala. 111, 23 So. 81; Lowry v. State, 8 Ga. App. 379, 69 S. E. 34; Wilson v. State, Tex. Cr. 74 S. W. 315. 54 See § 393, supra.

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55 Anderson v. Crawford, 265 Fed.

504.

56 Anderson v. Crawford, 265 Fed. 504.

57 See § 393, supra.

58 Goodrum v. State, 60 Ga. 509; Ridout v. State, 6 Tex. App. 249. 59 Stark v. Com., 169 Ky. 539, 184

istering poison or any other deleterious drug,60 or by throwing vitriol or other similar substance upon another,61 or by cutting a person's clothes,62 or spitting in his face,63 or pushing and shoving him,64 or forcibly taking property from his possession,65 or by striking him. with an automobile,66 or a horse and wagon.67

§ 398. - Indirect injuries. The force or injury need not be ap plied or inflicted directly.68 So an assault and battery may be com

S. W. 875; State v. Roby, 83 Vt. 121, 74 Atl. 638.

For a man to take hold of a woman in such a way as to cause in her a sense of shame, or a disagreeable emotion of the mind. Poldrack v. State, 86 Tex. Cr. 272, 216 S. W. 170.

It is an assault and battery for a man to touch the hand of a woman after soliciting her to have sexual intercourse, Yarbrough v. State, 17 Ga. App. 828, 88 S. E. 710; or to take hold of a woman's arm and attempt to kiss her. Moreland v. State, 125 Ark. 24, 188 S. W. 1, L. R. A. 1917 A 140; or to put his arm around the neck of another man's wife against her will, without some innocent reason or excuse. Goodrum v. State, 60 Ga. 509.

60 Johnson v. State, 92 Ga. 36, 17 S. E. 974; Carr v. State, 135 Ind. 1, 34 N. E. 533; Com. v. Stratton, 114 Mass. 303, 19 Am. Rep. 350; Reg. v. Button, 8 Car. & P. 660.

Contra, Reg. v. Hanson, 2 Car. & K. 912; Reg. v. Dilworth, 2 Moody & R. 531; Garnet v. State, 1 Tex. App. 605, 28 Am. Rep. 425.

The drug need not be a poisonous or deadly dose, but it is sufficient if it is an unusual dose, likely to produce serious injury. So it is an assault and battery to administer croton oil to another by way of a trick or joke, where it has an injurious effect. State v. Monroe, 121 N. C. 677, 28 S. E. 547, 43 L. R. A. 861, 61 Am. St. Rep. 686.

61 People v. Stanton, 106 Cal. 139, 39 Pac. 525; State v. District Court, 35 Mont. 321, 89 Pac. 63; People v. Bracco, 69 Hun 206, 23 N. Y. Supp. 505. And see §§ 419, 426, infra.

Pouring a mixture of pepper and turpentine upon the person of another. Murdock v. State, 65 Ala. 520.

62 Reg. v. Day, 1 Cox C. C. 207. And see § 422, infra.

63 Reg. v. Cotesworth, 6 Mod. 172, 87 Eng. Reprint 928.

64 Lowry v. State, 8 Ga. App. 379, 69 S. E. 34; State v. Baker, 65 N. C. 332.

65 Forcibly taking property from the possession of another by means which overcome resistance, however slight. State v. Gorham, 55 N. H. 152.

Taking articles from a person's hand or arm by force and in manifest anger. People v. Beifeld, 171 Ill. App.

614.

Violently wrenching a gun from the hands of another, where the latter's flesh is torn and caused to bleed. Brown v. State, 118 Ala. 111, 23 So. 81. 66 People v. Hopper, 69 Colo. 124, 169 Pac. 152; Tift v. State, 17 Ga. App. 663, 88 S. E. 41; Bleiweiss v. State, 188 Ind. 184, 119 N. E. 375, 122 N. E. 577; Schneider v. State, 181 Ind. 218, 104 N. E. 69. And see § 402, infra.

67 State v. Lewis, 4 Pennew. (Del.) 332, 55 Atl. 3. And see § 402, infra. 68 Kirland v. Am. Rep. 386.

State, 43 Ind. 146, 13

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