member of a grand jury.5 Under some statutes of this character the opprobrious words or abusive language must have been used in the presence of the accused at the time of the assault; and not previously, while under others they need not have been used in his presence, and it is sufficient if they were used at or near the time of the assault. The aggressor in the use of such words or language is not entitled to the benefit of the statute although his opponent uses insulting language to him in return. Whether the use of insulting or abusive language makes the user the aggressor so as to deprive him of the right of self-defense against an assault thereby provoked, is considered in another section.8 § 441. Adultery with or insult to wife or relative. In the absence of a statutory provision to the contrary, it is no justification for an assault by shooting that the accused catches the person assaulted in the act of committing adultery with his wife. But where the statute makes the killing of a person who seduces the defendant's wife justifiable homicide,10 shooting such a person is also justifiable where death does not ensue.11 And where by statute insulting words or conduct by the deceased towards a female relative of the accused is sufficient to reduce a homicide from murder to manslaughter, 12 such words or language will prevent a conviction for assault with intent to' kill if death does not ensue, 13 since to constitute an assault with intent 5 They afford no justification for an assault subsequently upon such juror by a relative of the person whose conduct was under investigation in the grand jury room. Nobles v. State, 12 Ga. App. 355, 77 S. E. 184. 6 Haygood v. State, 137 Ga. 168, 73 S. E. 81; Berry v. State, 105 Ga. 683, 31 S. E. 592; Nobles v. State, 12 Ga. App. 355, 77 S. E. 184; Cole v. State, 2 Ga. App. 734, 59 S. E. 24. An assault is not justified by an insulting note sent by the assaulted party to the daughter of the accused in his absence and on the day before the assault was committed. Brooke v. State, 155 Ala. 78, 40 So. 491; Spear v. State, 3 Ala. App. 52, 57 So. 510; Jackson v. State, 4 Ga. App. 852, 62 S. E. 539. to murder, it must appear that the accused would have been guilty of murder if death had resulted.14 A person has no right to use physical force to prevent illicit sexual intercourse between his sister and a man, where she is of mature years, unless in his presence and after he has protested, and even then he can only use such force as is reasonably necessary to prevent the act.15 § 442. Effect of consent-In general. Generally an act does not constitute an assault, or an assault and battery, if the person on or against whom it is committed freely consents to the act, provided he or she is capable of consenting, and the act is one to which consent may be given, and the consent is not obtained by fraud.16 Thus, it has been held that a person who whips another with a switch, at his request or with his consent, is not guilty of an assault and battery.17 The same is true of injuries received in friendly boxing matches, football, and other lawful games and sports.18 An attempt to procure an abortion by the use of instruments or drugs is not an assault upon the woman, if she consents. 19 And where a woman over the age of consent, who is mentally competent and is not under duress or fear, consents to sexual intercourse, there is no assault either in the attempt to have or in the consummation of such intercourse.20 Ohio. Champer v. State, 14 Ohio St. 437; Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355. South Carolina. State v. Beck, 1 Hill 363, 26 Am. Dec. 190. South Dakota. State v. Archer, 22 S. D. 137, 115 N. W. 1075. Wyoming. Ross v. State, 16 Wyo. 285, 93 Pac. 299, 94 Pac. 217. England. Reg. v. Clarence, 22 Q. B. Div. 23, 16 Cox C. C. 511; Reg. v. Coney, 8 Q. B. Div. 534, 15 Cox C. C. 46; Reg. v. Wollaston, 12 Cox C. C. 180. 17 State v. Beck, 1 Hill (S. C.) 363, 26 Am. Dec. 190. 18 Fost. C. L. 260; Com. v. Collberg, 119 Mass. 350, 20 Am. Rep. 328; State v. Burnham, 56 Vt. 445, 48 Am. Rep. 801; Reg. v. Bradshaw, 14 Cox C. C. 83. 19 State v. Cooper, 22 N. J. L. 52, 51 Am. Dec. 248. 20 State v. Eslick, Mo. App. -, 216 S. W. 974; Ross v. State, 16 Wyo. 285, 93 Pac. 299, 94 Pac. 217. An information alleging that the defendant feloniously assaulted a married woman with intent to have unlawful voluntary sexual intercourse with her does not charge an assault with intent to commit a felony, since if the offense had been consummated, both parties would have been guilty of adultery, which requires the consent of both parties and hence does not involve an assault. Nor is the indecent fondling of such a woman an assault if done with her consent.21 And consent is also a defense to a prosecution for assault with intent to commit the crime against nature.22 But if a man assaults a woman with intention of having intercourse with her by force and against her will, notwithstanding her utmost resistance, he may be convicted of an assault with intent to commit rape, though she subsequently consents to the intercourse, or though her subsequent resistance is not so continued and persistent as to warrant a conviction, or rape. In such case subsequent yielding and consent cannot relate back and cover preceding acts.23 Consent is no defense, however, where the matter is one that concerns the peace and dignity of the state,24 as where two persons fight by agreement.25 § 443. Consent induced by fraud. Whether consent to an act of force will prevent it from being an assault and battery, when the consent is induced by fraud, is not clear, and the decisions are con State v. Archer, 22 S. D. 137, 115 Consent is a question for the jury See also § 412, supra. 21 Saye v. State, 54 Tex. Cr. 430, 114 S. W. 804; Crawford v. State, 21 Tex. App. 454, 1 S. W. 446; Atkins v. State, 11 Tex. App. 8. 22 People v. Dong Pok Yip, 164 Cal. 143, 127 Pac. 1031. Indecently assaulting boys. Reg. v. Lock, L. R., 2 C. C. 10. 23 State v. Atherton, 50 Iowa 189, 32 Am. Rep. 134; State v. Cross, 12 Iowa 66, 79 Am. Dec. 519; People v. Marrs, 125 Mich. 376, 84 N. W. 284; State v. Bagan, 41 Minn. 285, 43 N. W. 5; State v. Hartigan, 32 Vt. 607. And see Gadsden v. State, 77 Fla. 627, 82 So. 50. Compare State v. Eslick, Mo. 24 State v. Roby, 83 Vt. 121, 74 Atl. 638. See Willey v. Carpenter, 64 Vt. 212, 23 Atl. 630, 15 L. R. A. 853; Reg. v. Coney, 8 Q. B. Div. 534, 15 Cox C. C. 46. 25 Indiana. Adams v. Waggoner, 33 Ind. 531, 5 Am. Rep. 230. Kansas. State v. Newland, 27 Kan. 764. Massachusetts. Com. v. Collberg, 119 Mass. 350, 20 Am. Rep. 328. North Carolina. State v. Bryson, 60 N. C. 476. Texas. King v. State, 4 Tex. App. 54, 30 Am. Rep. 160. Vermont. Willey v. Carpenter, 64 Vt. 212, 23 Atl. 630. England. Reg. v. Lewis, 1 Car. & K. 419; Reg. v. Coney, 8 Q. B. Div. 534, 15 Cox C. C. 46. Contra, Champer v. State, 14 Ohio St. 437. And see the dictum in State v. Beck, 1 Hill (S. C.) 363, 26 Am. Dec. 190. 67. flicting. It is no doubt safe to say that if a person consents to an act, understanding its nature, the consent will prevent the act from being an assault and battery, notwithstanding it is induced by fraud.26 But where a person is induced to consent to an act of a particular nature, and the act done is of a different nature, the consent is no defense.2 27 So there is an assault where a woman is induced to consent to sexual intercourse with a physician by his representations that he is treating her professionally, she being in ignorance of the nature of the act,28 or where a physician induces a woman to permit him to take off her clothes by falsely representing that he cannot otherwise judge of her illness,29 or where a person by fraud induces another to take a poisonous or otherwise deleterious drug, in ignorance of its nature, and injury results.30 In jurisdictions where a man who has intercourse with a woman with her consent by fraudulently personating her husband is not guilty of rape,31 a man who attempts to do so is not guilty of an assault with intent to rape.32 There has been a difference of opinion as to whether a man who has intercourse with a woman with her consent, and communicates a venereal disease, is guilty of an assault because of her ignorance of the fact that he is diseased.33 § 444. - Submission through fear. As we have seen, consent is to be distinguished from mere assent or submission.34 In all cases of indecent assault, the age and mentality of the victim is important and should be considered in determining the presence or absence of consent. And mere submission by a child of tender years or arrested 26 Reg. v. Clarence, 22 Q. B. Div. 23, 16 Cox C. C. 511. 27 Reg. v. Case, 4 Cox C. C. 220. And see Richie v. State, 58 Ind. 355, where the sexual act was performed in so brutal a manner as to amount to an assault and battery, though the woman consented. 28 Reg. v. Case, 4 Cox C. C. 220. And see § 891, infra. 29 Bartell v. State, 106 Wis. 342, 82 N. W. 142; Rex. v. Rosinski, 1 Moody C. C. 19. 30 Com. v. Stratton, 114 Mass. 303, 19 Am. Rep. 350; State v. Monroe, 121 N. C. 677, 28 S. E. 547. 31 See § 891, infra. 32 State v. Brooks, 76 N. C. 1; Wyatt v. State, 2 Swan (Tenn.) 394. 33 That it was an assault was held in Reg. v. Bennett, 4 Fost. & F. 1105, and in Reg. v. Sinclair, 13 Cox C. C. 28. But in a later case the contrary was held, in the case of husband and wife, by nine judges out of thirteen. Reg. v. Clarence, 22 Q. B. Div. 23, 16 Cox C. C. 511. 34 See § 443, supra. mental development to an attempted outrage of its person will not, in and of itself, be construed to be such consent as will, in point of law, justify or excuse the assault.35 So it is an assault to attempt to have sexual intercourse,86 or to commit the crime against nature,37 or to take indecent liberties,38 with a child, where the victim submits through fear, or because she or he is overawed by the assailant, even though consent would be a defense. § 445. Persons incapable of consenting. Consent of an idiot,39 or of a child too young to give a valid consent, 40 is no defense to a charge of assault. And to attempt to have sexual intercourse with a woman who is asleep, or who is insensible through drunkenness or drugs, is an assault.41 even In England it has been held that an attempt to have connection with a girl of tender years with her consent is not an assault, though she may be too young to understand the nature of the act, and though her consent would be no defense on an indictment for rape.42 And there are some decisions to the same effect in this country.43 But the great weight of authority is to the effect where the woman is below the age of consent, consent is no defense 35 People v. Dong Pok Yip, 164 Cal. 143, 127 Pac. 1031. 36 Gadsden v. State, 77 Fla. 627, 82 So. 50; Cliver v. State, 45 N. J. L. 46; Reg. v. Day, 9 Car. & P. 722; Reg. v. Woodhurst, 12 Cox C. C. 443. 37 People v. Dong Pok Yip, 164 Cal. 143, 127 Pac. 1031. 38 Hill v. State, 37 Tex. Cr. 279, 38 S. W. 987, 39 S. W. 666, 66 Am. St. Rep. 803. In Rex v. Nichol, Russ. & R. 130, a schoolmaster who took indecent liberties with a female scholar, without her consent, though she did not resist, was held guilty of an assault. A person may be convicted for indecently assaulting boys, where they merely submit to the acts in ignorance of their nature. Reg. v. Lock, L. R. 2 C. C. 10. 39 State v. Marks, 178 N. C. 730, 101 S. E. 24. that con of his 40 It has been held that a child of nine years is not competent to sent to a forcible transfer of him to a stranger from the custody father, and that such consent defense to a prosecution for assault and battery upon him in making the transfer. Com. v. Nickerson, 5 Allen (Mass.) 518. is no 41 Reg. v. Camplin, 1 Cox C. C. 220, 1 Den. C. C. 89. See § 889, infra. 42 Reg. v. Read, 2 Car. & K. 957, 1 Den. C. C. 377 (where the child was under nine); Reg. v. Day, 9 Car. & P. 722; Reg. v. Martin, 9 Car. & 43 State v. Pickett, 11 Nev. P. 213; C. 443; C. 114, 255, 21 Am. Rep. 754; Smith v. State, 12 Ohio in this St. 466, 80 Am. Dec. 355. See, Ohio |