Odger's English Common Law

Chapter YI.
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. 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.
i 21 & 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 B. v. James (1844), 1 C. & K. 630.
;