Odger's English Common Law

But it is not an assault
—
ASSAULT AND BATTERY. 317
(1) to point at another a pistol which is unloaded or which is only loaded
for in neither case can any
in such a manner that it cannot be discharged ;
physical hurt be inflicted. 1
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.
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, 3 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 ;
Setting a dog at a man, which bites him, is a battery.
spitting at him is only an assault.
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 homi-
cide 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, 5 nor is
it if a horse runs away with his rider and knocks down a
i jB. t. James (1844), 1 0. 4 K. 630.
2 Stevens v. Myers (1830), 4 0. & P. 349.
3 B. 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.
;