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mitted by striking a vehicle in which a person is riding with another vehicle, as a result of which such person is injured; or by exposing an infant or other helpless person to the inclemency of the weather; 70 or by inducing another to take poison or any other harmful substance in ignorance of its nature; 71 or by offering violence, and thereby causing another to jump from a window.72 And it may be committed through the medium of a third person, as where a druggist sells a drug which he knows is to be administered by the purchaser to a third person by way of a trick or joke, and not as a medicine.73

§ 399. Intent-In general. A criminal intent is an essential element of the offense of assault or assault and battery.74 If an injury

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Although force and violence are included in all definitions of assault or assault and battery, yet, where there is physical injury to another person, it is sufficient that the cause is set in motion by the defendant, or that the person is subjected to its operation by means of any act or control which the defendant exerts." Com. v. Stratton, 114 Mass. 303, 19 Am. Rep. 350.

See People v. Moore, 50 Hun (N. Y.) 356, 3 N. Y. Supp. 159, where an assault was committed by stopping and turning a sleigh driven by the prosecutor.

In State v. Davis, 1 Hill (S. C.) 46, it was held that to take a negro out of prosecutor's possession and presence with violence, breaking the chain and cutting the rope by which he was secured, was an assault.

And see the other cases cited in the following notes.

69 People v. Hopper, 69 Colo. 124, 169 Pac. 152; Tift v. State, 17 Ga. App. 663, 88 S. E. 41; Luther v. State, 177 Ind. 619, 98 N. E. 640; Bleiweiss v. State, 188 Ind. 184, 119 N. E. 375 And see § 402, infra.

70 Reg. v. March, 1 Car. & K. 496. In this case, the defendants told the mother of an infant that they were

going to take it to an institution to be cared for, but, instead of doing so, they put it in a bag and hung it on the fence at the side of the road, and left it there. It was held that this was an assault on the child.

In Reg. v. Renshaw, 2 Cox C. C. 285, it was held that an indictment for assault can be sustained only "when the person exposed suffers a hurt or injury of some kind or other from the exposure."

In Pallis v. State, 123 Ala. 12, 26 So. 339, 82 Am. St. Rep. 106, a conviction of assault with intent to kill was sustained where defendant abandoned her new born babe in a sand pit without clothing or other covering except straw and leaves. See also Ter. v. Manton, 8 Mont. 95, 19 Pac. 387. 71 See § 397, supra.

72 Reg. v. Halliday, 61 L. T. (N. S.) 701.

73 State v. Monroe, 121 N. C. 677, 28 S. E. 547, 43 L. R. A. 861, 61 Am. St. Rep. 686.

74 Alabama McGee V. State, 4 Ala. App. 54, 58 So. 1008. California. People v. Dodel, 77 Cal. 293, 19 Pac. 484.

Illinois. Paxton v. Boyer, 67 Ill. 132, 16 Am. Rep. 615.

Indiana. Bleiweiss v. State, 188

is inflicted upon another by accident in the doing of a lawful act without culpable negligence, an indictment for assault and battery will not lie.75 Some courts hold that an intent to frighten is suffi

Ind. 184, 119 N. E. 375, 122 N. E. 577; Luther v. State, 177 Ind. 619, 98 N. E. 640; Vanvactor v. State, 113 Ind. 276, 15 N. E. 341, 3 Am. St. Rep. 645.

Iowa. State v. Matheson, 130 Iowa 440, 103 N. W. 137, 114 Am. St. Rep. 427, 8 Ann. Cas. 430.

Maine. State v. Carver, 89 Me. 74, 35 Atl. 1030.

Massachusetts. Com. v. Mann, 116 Mass. 58; Com. v. Ruggles, 6 Allen, 588; Com. v. Randall, 4 Gray 36.

Minnesota. State v. Damuth, 135 Minn. 76, 160 N. W. 196.

New York. People v. Terrell, 11 N. Y. Supp. 364; People v. Sullivan, 4 N. Y. Cr. 193; People v. Hale, 1 N. Y. Cr. 533.

North Carolina. State v. Hemphill, 162 N. C. 632, 78 S. E. 167, 45 L. R. A. (N. S.) 455; State v. Davis, 23 N. C. 126, 35 Am. Dec. 735.

Oregon State v. Cancelmo, 86 Ore. 379, 168 Pac. 721.

Tennessee. Cowley v. State, 10 Lea, (78 Tenn.) 282; Richels v. State, 1 Sneed, (33 Tenn.) 606.

Texas. Nobles v. State, 83 Tex. Cr. 46, 200 S. W. 1090; Robey v. State, 73 Tex. Cr. 9, 163 S. W. 713; Greer v. State, Tex. Cr. -, 106 S. W. 359; Crawford v. State, 21 Tex. App. 454, 1 S. W. 447.

Vermont. State v. Roby, 83 Vt. 121, 74 Atl. 638.

England. Rex. v. Gill, 1 Strange

190.

There is no assault if there was no intention to hurt or injure, and it was so understood by the other party, and there was in fact no injury. State v. Hemphill, 162 N. C. 632, 78 S. E. 167, 45 L. R. A. (N. S.) 455.

One who kisses a woman is not

guilty of an assault where he did not intend to injure her, but thought that his actions would be agreeable to her. Weaver v. State, 66 Tex. Cr. 366, 146 S. W. 927.

A man is not guilty of assault in placing his arm around a woman, where he has no intention of injuring her or her feelings, and has probable grounds to believe and does believe, that the act will not be objec tionable to her. Kerr v. State, 83 Tex. Cr. 474, 204 S. W. 107.

The mere fact that the person claimed to have been assaulted was put in fear because of an erroneous impression as to the defendant's intention will not make him guilty, where he had no unlawful intent. State v. Price, 111 N. C. 703, 16 S. E. 414; Barnes v. State, Tex. Cr. - 72 S. W. 168.

To render a person who sells a drug guilty of assault on a third person, to whom it is administered by the purchaser by way of a joke, he must have known or had reason to believe that the drug was intended to be administered to some person by way of a trick or joke, and not for medicinal purposes. State v. Monroe, 121 N. C. 677, 28 S. E. 547, 43 L. R. A. 861, 61 Am. St. Rep. 686.

75 England. Rex. v. Gill, 1 Strange 190.

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cient, while others take the position that there must be an actual present intent to injure.76

The intent may be inferred from circumstances which legitimately permit such inference.77 For example, it may be inferred or presumed where an injury is caused by violence to the person of another,78 or is the result of an unreasonable or excessive use of force,79 or of the intentional doing of any unlawful act, of which it is the natural or probable consequence. And if the assault is intentionally committed, the person committing it may be liable for unintended consequences.80

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§ 400. - Actual and apparent intent. Some of the courts hold that it is sufficient to constitute an assault if the acts of the defendant create a reasonable apprehension of immediate physical injury on the part of the person against whom they are directed, and are done with that intent, although in fact there is no intent to injure

Massachusetts. Com. v. Ruggles, 6 Allen 588; Brown v. Kendall, 6 Cush. 292; Com. v. McKie, 1 Gray 61, 61 Am. Dec. 410.

Michigan. Talmage v. Smith, 101 Mich. 370, 59 N. W. 656.

Texas. Carrel v. State, 77 Tex. Cr. 344, 178 S. W. 331; Atkinson v. State, 62 Tex. Cr. 419, 138 S. W. 125; Groszehmigem v. State, 57 Tex. Cr. 241, 121 S. W. 1113; Jackson v. State, Tex. Cr. 103 S. W. 927. Vermont. Vencent v. Stinehour, 7 Vt. 62, 29 Am. Dec. 145.

As where one accidentally injures a trespasser while shooting to scare trespassers away, and without intent to injure anyone. Trimble v. State, 57 Tex. Cr. 439, 125 S. W. 40.

Or where a person justifiably attempts to strike another in self defense, and accidentally hits a third person. Caperton v. Com., 189 Ky. 652, 225 S. W. 481.

Or where the horse that a person is driving runs away, or becomes unmanageable, or the lines break, and by reason of that fact he runs into another. Perkins v. State, 62 Tex. Cr. 508, 138 S. W. 133.

Pointing a loaded gun at another by accident is not a crime. State v. Kuum, 55 Mont. 436, 178 Pac. 288. 76 See § 400, infra.

77 Bleiweiss v. State, 188 Ind. 184, 119 N. E. 375, 122 N. E. 577; Luther v. State, 177 Ind. 619, 98 N. E. 640; Com. v. Randall, 4 Gray (Mass.) 36; State v. Roby, 83 Vt. 121, 74 Atl. 638. See also § 90, supra.

78 Robey v. State, 73 Tex. Cr. 9, 163 S. W. 713; Ward v. State, 68 Tex. Cr. 154, 151 S. W. 1073.

This presumption is not conclusive, and the accused may show facts and circumstances which indicate that he did not intend to injure the party. McKay v. State, 44 Tex. 43; Perkins v. State, 62 Tex. Cr. 508, 138 S. W. 133; Greer v. State, Tex. Cr. -, 106 S. W. 359.

79 Com. v. Randall, 4 Gray (Mass.) 36.

It may be inferred from unreasonableness of method adopted or excess of force employed in the chastisement of a pupil by teacher. Vanvactor v. State, 113 Ind. 276, 15 N. E. 341, 3 Am. St. Rep. 645. 80 See § 401, infra.

him.81 Under this rule it is held that there is an assault when an unloaded gun is presented at another by a person who knows that it is unloaded, 82 or when a horse is ridden so close to another as to endanger his person, although there is no intent to ride over or strike him,83 where the circumstances are such as to create a reasonable apprehension of immediate bodily injury on the part of such other person. But of course there is no assault under such circumstances where the person threatened knows the condition of the gun or the intent of the accused not to injure him,84 or for any other reason is not put in fear.85 And menacing acts can never amount to an assault, if it appears from accompanying words or conduct that there is no present intent to injure.86 It is very generally held that it is an

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81 United States. Price v. United States, 156 Fed. 950, 15 L. R. A. (N. S.) 1272, 13 Ann. Cas. 483.

Kansas. State v. Archer, 8 Kan.
App. 737, 54 Pac. 927.

Massachusetts. Com. v. White, 110
Mass. 407.
Mississippi.
Miss. 102.

Lanier v. State, 57

Montana. State v. Kuum, 55 Mont. 436, 178 Pac. 288; State v. Papp, 51 Mont. 405, 153 Pac. 279; State v. Barry, 45 Mont. 598, 124 Pac. 775, 41 L. R. A. (N. S.) 181.

South Carolina. State v. Sims, 3 Strob. 137.

Tennessee. Richels v. State, 1 Sneed. (33 Tenn.) 606.

82 United States. Price v. United States, 156 Fed. 950, 15 L. R. A. (N. S.) 1272, 13 Ann. Cas. 483.

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Where one shoots at another for fun, at a distance of about twenty steps, with a gun loaded only with powder. Crumbley v. State, 61 Ga. 582.

See also § 423, infra.

83 State v. Sims, 3 Strob. (S. C.) 137.

84 Lanier v. State, 57 Miss. 102.

85 As where the person alleged to have been assaulted did not see the defendant until the latter had been covered with a gun and thus rendered harmless. State v. Barry, 45 Mont. 598, 124 Pac. 775, 41 L. R. A. (N. S.) 181.

86 Richels v. State, 1 Sneed. (33 Tenn.) 606.

For this reason it was held that a man who laid his hand on his sword and said to another, "If it were not assize time, I would not take such language from you," did not thereby commit an assault, as his words showed that there was no present intention to injure. Tuberville v. Savage, 1 Mod. 3.

The same rule was applied in Com. v. Eyre, 1 Serg. & R. (Pa.) 347, where the defendant raised his hand within striking distance of the prosecutor, and said, "If it were not for your gray hairs, I would tear your heart out"; and State v. Crow, 1 Ired. (N.

assault to fire a gun in the direction of a person merely for the purpose of frightening him, and without intending to hit him,87 or to point a loaded gun at a person within shooting distance, although there is no intent to shoot.88 And statutes in some states expressly make it an assault to point a pistol at another whether the pointing is done in fun or otherwise, 89 or to use any dangerous weapon or the semblance thereof, in an angry or threatening manner, with intent to alarm another, and under circumstances calculated to effect that object.90

Other courts hold that a mere intent to frighten another or merely putting him in fear is not enough, but that there must be an actual present intent to do personal harm.91 Under this rule it is not an assault to present an unloaded gun at another, within shooting distance, and in such a manner as to terrify him, although the per

C.) 376, where the defendant raised his cane within striking distance, shook it at the prosecutor, and said, "If you were not an old man, I would knock you down."

87 Georgia. Collier v. State, 39 Ga. 31, 99 Am. Dec. 449; Edwards v. State, 4 Ga. App. 849, 62 S. E. 565; S. C. 4 Ga. App. 167, 60 S. E. 1033.

Kansas. State v. Triplett, 52 Kan. 678, 35 Pac. 815.

Massachusetts. Com. v. Mann, 116 Mass. 58.

Minnesota. State v. Lehman, 131 Minn. 427, 155 N. W. 399, Ann. Cas. 1917 D. 615.

Mississippi. Malone v. State, 77 Miss. 812, 26 So. 968 (firing over the heads of a congregation); Lanier v. State, 57 Miss. 102.

Missouri. State v. Hamilton, 170 Mo. 377, 70 S. W. 876 (shooting into a crowd).

Pennsylvania. Smith v. Com., 100 Pa. 324 (shooting in a street car).

Rhode Island, State v. Baker, 20 R. I. 275, 38 Atl. 653, 78 Am. St. Rep. 863.

88 State v. Llewellyn, 93 Mo. App. 469, 67 S. W. 677; State v. Kuum, 55 Mont. 436, 178 Pac. 288; State v.

Papp, 51 Mont. 405, 153 Pac. 279.
And see § 394, supra.

89 See the statutes of the various states and the following cases:

State v. Atkinson, 141 N. C. 734, 53 S. E. 228; State v. Scott, 142 N. C. 582, 55 S. E. 69, 9 L. R. A. (N. S.) 1148.

90 Teague v. State, 84 Tex. Cr. 169, 206 S. W. 193; Borders v. State, 81 Tex. Cr. 43, 193 S. W. 148; Myers v. State, 72 Tex. Cr. 630, 163 S. W. 432; Trimble v. State, 57 Tex. Cr. 439, 125 S. W. 40; Barnes v. State (Tex. Cr.), 72 S. W. 168; Pearce v. State, 37 Tex. Cr. 643, 40 S. W. 806; Atterberry v. State, 33 Tex. Cr. 88, 25 S. W. 125; White v. State, 29 Tex. App. 530, 16 S. W. 340; Kief v. State, 10 Tex. App. 286.

91 Alabama. Chapman v. State, 78 Ala. 463, 56 Am. Rep. 42; Tarver v. State, 43 Ala. 354; State v. Blackwell, 9 Ala. 79. And see McGee v. State, 4 Ala. App. 54, 58 So. 1008.

Missouri. State v. Sears, 86 Mo. 169. Compare State v. Hamilton, 170 Mo. 377, 70 S. W. 876; State v. Llewellyn, 93 Mo. App. 469, 67 S. W.

677.

Oregon. State v. Godfrey, 17 Ore.

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