provisions for preventing indiscriminate selling or hiring of pistols or other firearms, especially to persons under eighteen years of age, and to persons intoxicated or not of sound mind.1 1 See ss. 4 and 5; and Bryson v. Gamage, Ltd., [1907] 2 K. B. 630; Matthews v. Gray, [1909] 2 K. B. 89. CHAPTER VI. ASSAULTS. APART from such serious crimes as homicide, robbery and rape, the only offences against the person known to the common law were assault and battery, which, as a rule, were but lightly punished. punished. Both these offences remain common law misdemeanours triable on indictment either at Assizes or Quarter Sessions, and punishable with imprisonment with or without hard labour for one year. The defendant may also be ordered to pay the costs of the prosecution.1 Any attempt unlawfully to use force against the person of another is an assault, provided the circumstances are such that the attempt if persisted in would be successful; any show or offer of violence under such circumstances is also an assault, even though the assailant does not in fact intend to persist in his attempt and do the actual violence which it is in his power to do. There is no assault unless it actually is in the assailant's power to inflict some bodily hurt. The fact that the person assaulted reasonably but erroneously believes that the defendant can and will do him bodily hurt is not sufficient.2 Thus it is an assault to strike either with or without a weapon at a man who is near enough to be struck, though the man avoids the blow; to hold up one's fist in a threatening manner at a man who is within striking distance; to fire a loaded gun at a man within its range, though the shot misses him; to point a loaded gun at a man within its range, though it be not fired ; to set a dog at large at a man urging the dog to bite him; to make any attempt to imprison or detain any person against his will. 1 24 & 25 Vict. c. 100, s. 74. 2 The opposite was held by Parke, B., in R. v. St. George (1840), 9 C. & P. 493; but this case is overruled by R. v. James (1844), 1 C. & K. 530. But it is not an assault (1) to point at another a pistol which is unloaded or which is only loaded in such a manner that it cannot be discharged; for in neither case can any physical hurt be inflicted. It is immaterial that the person aimed at is unaware of the circumstances which render the weapon harmless. (2) to shake one's fist at a person who is so far off that he could not possibly be reached by a blow. But if A. be advancing with clenched fists with intent to strike B., and he approaches so near B. that he would almost immediately be within arm's length of him, and then A. is stopped, A. is guilty of an assault, although he was never quite near enough to B. to strike him.2 No mere words can ever be an assault. 3 A battery is the application of the least degree of force in an angry, rude or insolent manner to the person, or even to the dress, of another. "The least touching of another in anger is a battery." Thus every battery includes an assault; it is in short an assault which has succeeded. But no act which is done innocently or undesignedly in the ordinary intercourse of life is a battery. Spitting in a man's face is a battery; spitting at him is only an assault. Setting a dog at a man, which bites him, is a battery. Kissing a girl against her will is a battery. But patting a friend on the shoulder, or touching him to attract his attention, is no battery; nor is it battery for one person in a crowd to jostle another as they enter a public hall or a theatre; provided in each case that no more force is used than is unavoidable or reasonably necessary. Defences to Assaults and Batteries. Practically any circumstances which would render a homicide justifiable or excusable will be a defence to an indictment for assault or battery. For example, it will be a defence if the accused can prove that the act complained of falls under one of the following heads : (a) Misadventure. If the act complained of be the result of a pure accident, no crime is committed. Thus it is no battery to strike or wound another by a pure accident," nor is it if a horse runs away with his rider and knocks down a 1 R. v. James (1844), 1 C. & K. 530. 2 Stevens v. Myers (1830), 4 C. & P. 349. 3 R. v. Day (1845), 1 Cox, 207. Per Holt, C. J., in Coles v. Turner (1705), 6 Mod. at p. 149. 5 Weaver v. Ward (1617), Hob. 134. person crossing the road.1 In every case the onus is on the prisoner to prove that his act was unintentional and not the result of any culpable negligence on his part. (b) Lawful sport. It is also a defence to an assault or battery that the injury happened during the course of some lawful sport or game. For example, if during a boxing match with padded gloves, or a football or cricket match, a man be injured, he cannot prosecute or sue the person whose act caused the injury. It would be different if the game were an unlawful one, e.g., a prize-fight, or if, though the game was a lawful one, the assailant intended to inflict unnecessary injury or was otherwise acting in flagrant disobedience to the laws of the game. (c) Official duty.-Again, it is a defence to any criminal charge that it was the defendant's duty to do the act complained of. For example, it is often the duty of every officer of justice, and of all persons whom he summons to his assistance, to do acts in the administration of the law which, if done by other persons, would be indictable as batteries or assaults. So a railway guard may use reasonable force to prevent any one entering a train in motion, and a sentry may stop any unauthorised person from entering a royal palace or a barracks. 3 (d) Reasonable correction.-A parent has a right to inflict reasonable chastisement on his child; so has a schoolmaster on his scholar. But the child or scholar must be old enough to appreciate correction. And the chastisement must be moderate and administered with a reasonable instrument. In Cleary v. Booth the question raised was whether the headmaster of a board school is justified in inflicting corporal punishment on a pupil who has misconducted himself outside the school, on his way to school, and out of school hours. The Court (Lawrence, J. and Collins, J.) held the schoolmaster had such authority, and remitted the case for the magistrates to find whether the punishment administered was excessive. 1 Gibbons v. Pepper (1696), 4 Mod. 405. 2 See post, pp. 480, 481, and Rose v. Kempthorne (1910), 22 Cox, 356. 3 This right is expressly recognised by the Prevention of Cruelty to Children Act, 1904 (4 Edw. VII. c. 15), s. 28, and by the Children Act, 1908 (8 Edw. VII. c. 67), s. 37. 4 R. v. Griffin (1869), 11 Cox, 402. 5 [1893] 1 Q. B. 465. Self-defence. It is also a defence if the assault complained of was committed by the accused in defence of himself, his wife, child or any one under his protection. This right has been already discussed.1 But the acts adopted to repel an attack must in every case be reasonable and commensurate with the force employed by the assailant, and must not be continued after he has abandoned his attack. Some assaults may also be justified on the ground that they were committed in defence of a man's property; but this right is much more restricted than the right of selfdefence. Thus, if a trespasser (A.) enters B.'s house and refuses to leave it, B. has a right to remove him by force, but not to strike him, even if he cannot otherwise turn him out of the house. If, however, while B. is seeking to eject A. from his premises, A. assaults B., then B. may use any degree of force necessary to defend himself and to remove A. from the house.2 3 (f) Lastly, consent is a defence to every common law assault, but not as a rule to a battery; for a battery is a breach of the peace. But non-resistance which is obtained by fraud is no consent. There is an appreciable difference between consent and submission or non-resistance, induced by trickery or threats, or resulting from weakness of intellect," or from ignorance of the nature of the act proposed to be done. Though every consent involves a submission, it by no means follows that a mere submission involves consent. There can be no consent unless the person assailed is sane and sober and capable of exercising, and does exercise, a positive will in the matter. "In many cases, as where an act is done to a person who is asleep or who has been drugged, there is no consent, though there is no active dissent."" 6 A prize-fight is a twofold battery, and the fact that each party consented to receive the blows of the other is no defence for either. All persons R. v. Rosinski (1821), 1 Moo. C. C. 19. R. v. Flattery (1877), 2 Q. B. D. 410. R. v. Barratt (1873), L. R. 2 C. C. R. 81; but see R. v. Fletcher (1866), L. R. 1 C. C. R. 39, and R. v. Dee (1884), 15 Cox, 579. R. v. Lock (1872), L. R. 2 C. C. R. 10. Per Quain, J., ib. at p. 14. |