Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

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panied with a present purpose to do great bodily harm ; and the only
declaration, by which its character is attempted to be changed, is,
that the assailant was not determined to execute his savage purpose
unconditionally and without a moment's delay. He had commenced
the attack and raised the deadly weapon and was in the attitude to
strike, but suspended the blow, to afford the object of his vengeance
an opportunity to buy his safety, by compliance with the defendant's
terms. To hold that such an act, under such circumstances, was not
an offer of violence — not an attempt to commit violence, would be,
we think, to outrage principle and manifest an utter want of that
solicitude for the preservation of peace, which characterizes our law,
and which should animate its administrators. To every- purpose —


both in fact and in law — the attack on the prosecutor was begun —
and in the pause, which intervened before its consummation, most
happily for both parties an arrangement was made, which prevented
the probably fatal result. But this pause — though intentional, and
announced when the attack began — does not prevent that attack
from being an offer or attempt to strike. If a ruffian were to
level his rifle at a traveller, and announce to him that he might have
fifteen minutes to make his peace with God — and the unfortunate
man should save his life by prayers, by remonstrance, by money, or
by any other means before the expiration of that time, could it be
pretended that there had been no attempt nor offer to hurt him, be-
cause the intent was not to kill instantaneously, and therefore did
not accompany the act? Will it be doubted, if a bully should pre-
sent his pistol at a citizen and order him, under pain of death, not
to walk on the same side of the street with him, whether there was
an offer of violence, because the purpose to kill was not absolute but
conditional merely? Wherever the act is done in part execution
of a purpose of violence — whether that purpose be absolute or pro-
visional — makes no difference as respects the question, whether the
act be an assault. In both cases the assailant equally violates the
public peace. In both he breaks down the barrier which the law has
erected for the security of the citizen. In the former he sets up
none in its place. In the latter, he substitutes for it the protection of
his grace and favor.

Ordered accordingly.^

Supreme Court of North Carolina, 1868. 6Z N. Car. 15.

Assault, tried before Mitchell, J., at Spring Term i868, of the
Superior Court of Wilkes.

The following is the special verdict found upon the trial : On
a certain Sabbath, at a Church, where people had assembled for

^Accord: United States v. Myer, 1 Cranch. C. C. (U. S.) 310 (1806),
where the defendant, with upraised fist, said, "If you say that again I will
knock you down"; United States v. Richardson, 5 Cranch. (U. S.) 348
(1837), threat of violence if the prosecutor spoke; Bishop v. Ranney, 59 Vt.
316 (1887), the question was whether the plaintiff had been guilty of assault
upon the defendant, which justified the latter leaving his employment; it was
held that while an assault without battery would not in every case justify the
defendant leaving the employment, the master's conduct in standing over his
servant with fist upraised and threatening to strike him if he repeated an ac-
cusation, which the employer regarded as tantamount to calling him a liar was
an assault, though circumstances showed great provocation; French v. Ware,
65 Vt. 338 (1892), the words used were, "Get out of my way or I will shoot
you"; State v. Cherry, 11 Iredell 475 (N. Car. 1850), the defendant, with a
loaded shotgun in his hands, said to the prosecutor, "If you don't turn the
negro loose I will shoot you"; Herron v State, 12 I\Iont. 230 (1892), the de-
fendant, holding his rifle with one hand on the trigger, said to the prosecutor,
"turn around quick, or I will blow your head off," the defendant turned his
horses, this was held to be an assault; State v. Dooley, 121 Mo. 591 (1894),
similar facts; State v. Keefc, 19 Ark. 190 (1857), the defendant pointed a pis-


religious exercises, the defendant, with several others, was sitting
outside of the building, about six or seven steps from it, and the
prosecutor was approaching the Church, when the defendant, ad-
dressing him, said : "We have no use for you in this company ;
you shall not come here ; go back." The prosecutor declined to do
so. The defendant then rose to his feet and said to the prosecutor,
I have a pistol, and placed his hand on a pistol that was belted
around him. The prosecutor then commenced retiring, but tardily.
The defendant followed him a few steps, being not more than
ten steps from him, and urged him to go off or he would shoot him,
and while he was walking, drew the pistol from its scabbard, but did
not cock it, or present it towards the prosecutor.

Upon these facts, his Honor was of opinion that the defendant
was not guilty, and the Solicitor prayed an appeal.

Reade, J. A mere threat unaccompanied by an offer or attempt
to strike, is not an assault.

So an offer to strike, qualified by some declaration which shows
that there is no purpose to execute violence, is not an assault, unless
the offer is with a deadly weapon, and then words are not allowed to
qualify the act. So an offer of violence is an assault, even if it be
accompanied with a declaration that violence will be forborne upon
a condition which the actor had no right to impose : as if one offering
to strike says, I will strike you if you do not pull off your hat. This
will be an assault, because he has no right to require the hat to be
pulled off.^

So, in the case before us, if the defendant had not drawn a
deadly weapon, but had simply raised his fist in striking distance,
and said, if you do not leave I will strike you that would have been
an assault, because he had no right to require him to leave. But
the case is stronger than that. The prosecutor was where he had a

tol at the prosecutor and forced him to pay a bill for board, justly due by the
latter. But see Blake v. Barnard, 9 C. & P. 626 (1840). the captain of a vessel
presented a pistol to the head of the prosecutor, a member of the crew, con-
iincd to his berth for misconduct, and told him if he were not quiet he would
blow his brains out ; Lord Abinger charged that ''if the defendant, at the time
he presented the pistol, added words that it was not his intention to shoot the
plaintiff, it would be no assault." "The qualifying declaration must be un-
equivocal, so as to leave the person attacked no good reason to suppose that
violence will not be executed," State v. Hampton, 63 X. Car. 13 (1868), a
statement by a man. who clenched his fist but did not draw it back to strike,
and said that "I have a good mind to strike you" held not to deprive his
actions of their character of an assault.

^ Compare the language used in United States v. Richardson, 5 Cranch.
(U. S.) 348, and State v. Razvles,6S N. Car. 334, note to State v. Morgan, 3
Iredell 186 (N. Car. 1842). In both cases, however, the defendants' actions
threatened immediate violence, which could only be avoided by compliance with
his unlawful demand. In Bishop v. Ranncy, 59 \'t. 316; Kecfe v. State. 19 .Ark.
190, notes to State v. Morgan, and in State v. Morgan, the defendants' de-
mand was that the plaintiff or prosecutor should refrain from something
which he had no right to do, repeat an accusation tantamount to calling him
a liar, or that he should do something which he legally or morally ought to
do but which the, defendant had no right to compel bv force; in Hairston v.
State. 54 Miss. 689 (1877), the defendant admittedly had the right to forbid
the prosecutor from touching his horses and he had the right to protect his

2 — Bohlen's Cases. Vol. T.


right to be, and was in no wrong ; the defendant drew his pistol from
his scabbard, advanced towards the prosecutor who was retiring,
threatened to shoot him if he did not leave, was in ten steps of him,
and drove him from the place. This was certainly an "offer" of
violence, and constituted an assault.

The fact that the pistol was not cocked and pointed makes no
difference. This would have been but the work of a moment, and
was not needed to put the prosecutor in fear, and to interfere with
his personal liberty: State v. Hampton, ante, 13; State v. Myerfield,
Phil. 108 ; State v. Mooney, Ibid. 434.-

Let it be certified to the Court below, that there is error ; to the
end that judgment may pass upon the special verdict as upon a ver-
dict of guilty.

Superior Court of Judicature of New Hampshire, 1853. 27 A^. H. 223.

Trespass, for an assault.

Upon the general issue it appeared that the plaintiff and de-
fendant, being engaged in an angry altercation, the defendant
stepped into his office, which was at hand, and brought out a gun,
which he aimed at the plaintiff in an excited and threatening manner,
the plaintiff being three or four rods distant. The evidence tended

property by appropriate force or threat of great force, but his act was held
to be an assault since it was an apparent attempt to use excessive force with
a dangerous weapon, i. e., a pistol ; but see Pearson, C. J., in State v. Mverfield,
61 Phillips 108 (N. Car. 1867), p. 110, and State v. Jeffereys, 117 N. Car. 743
(1895), in which the defendant, who had not pursued the prosecutrix so
closely as to give her reasonable ground to fear an attack, and in fact never
approached nearer than fifteen feet of her, but who stood between her and
her home and by his threatening attitude forced her to go in the opposite
direction, was held guilty of a simple assault.

"" Accord: Osborn v. Veitch, 1 F. & F. 317 (1858), defendants half-
raised their guns which were at half cock; State v. Hampton, 63 N. Car. 13
(1868), fist clinched but not drawn back to strike; Read v. Coker, 13 C. B.
850 (1853), defendant's shopmen, by his orders, congregated around the plain-
tiff, tucking up their sleeves and aprons and threatening to break the plain-
tiff's neck if he did not leave the shop— the trial judge, Talfourd, J., left
it to the jury to say "whether there was an intention to assault the plaintiff
and whether the plaintiff was apprehensive of personal violence if he did not
retire," (but see People v. Lilley, 43 Mich. 521 (1880), State v. Rawles, 65
N. Car. 334 (1871), the defendants' guns were carried on their shoulders;
so in Herron v. State, 12 Mont. 230 (1892), the defendant was holding his
rifle with one hand on the trigger and the other on the barrel. On the other
hand, it was held that the mere act of picking up a "rock," though coupled
with threatening and abusive language, without any motion made to throw
them, did not constitute an assault, Penny v. State, 114 Ga. 77 (1901). While
in Hairston v. State, 54 Miss. 689 (1877), the plaintiff was seeking to prevent
the defendant from removing his horses; his right to protect his property
by appropriate force was conceded, but liis pointing a pistol at the plaintiff
and threatening to shoot if he did not let go of his horses was held to be
an assault, because the force which he threatened to use was excessive, he
having no right to use dangerous weapons even for the protection of his


to show that the defendant snapped the gun twice at the plaintiff,
and that the plaintiff did not know whether the gun was loaded or
not, and that, in fact, the gun was not loaded.

The court ruled that the pointing of a gun, in an angry and
threatening manner, at a person three or four rods distant, who was
ignorant whether the gun was loaded or not, was an assault, though
it should appear that the gun was not loaded, and that it made no
difference whether the gun was snapped or not.

The court, among other things, instructed the jury that, in
assessing the damages, it was their right and duty to consider the
effect which the finding of light or trivial damages in actions for
breaches of peace would have to encourage a disregard of the
laws and disturbances of the public peace.

The defendant excepted to these rulings and instructions.

The jury, having found a verdict for the plaintiff, the defendant
moved for a new trial by reason of said exceptions.

Gilchrist, C. J. Several cases have been cited by the counsel
of the defendant, to show that the ruling of the court was incorrect.
Among them is the case of Regina v. Baker, i Carr. & Kirw. 254. In
that case, the prisoner was indicted under the statute of 7 Will. IV
and I Vic. chap. 85, for attempting to discharge a loaded pistol.
RoLFE, B., told the jury that they must consider whether the pistol
was in such a state of loading that, under ordinary circumstances,
it would have gone off, and that the statute under which the prisoner
was indicted would then apply. He says, also, "if presenting a pis-
tol at a person, and pulling the trigger of it, be an assault at all, cer-
tainly in the case where the pistol is loaded, it must be taken to be an
attempt to discharge the pistol with intent to do some bodily injury."

From the manner in which this statement is made, the opinion
of the court must be inferred to be, that presenting an unloaded
pistol is an assault. There is nothing in the case favorable to the
defendant. The statute referred to relates to loaded arms.

The case of Regina v. James, i Carr. & Kirw. 529, was an
indictment for attempting to discharge a loaded rifle. It was shown
that the priming was so damp that it would not go off. Tindal,
C. J., said : *T am of opinion that this was not a loaded arm within
the statute of i Vic. chap. 85, and that the prisoner can neither be
convicted of the felony nor of the assault. It is only an assault to
point a loaded pistol at any one, and this rifle is proved not to be
so loaded as to be able to be discharged."

The reason why the prisoner could not be convicted of the as-
sault, is given in the case of Regina v. vS"^ George, 9 C. & P. 483,
where it was held that on an indictment for a felony, which includes
an assault, the prisoner ought not to be convicted of an assault,
which is quite distinct from the felony charged, and on such an
indictment the prisoner ought only to be convicted of an assault,
which is involved in the felony itself.

In this case, Parke, B., said "if a person presents a pistol which



has the appearance of being loaded, and puts the party into fear
and alarm, that is what it is the object of the law to prevent."'

So if a person presents a pistol purporting to be a loaded
pistol at another, and so near as to have been dangerous to life
if the pistol had gone off ; semble that this is an assault, even though
the pistol were, in fact, not loaded. Ibid.

In the case of Blake v. Barnard, 9 C. & P. 626, which was
trespass for an assauh and false imprisonment, the declaration al-
leged that the pistol was loaded with gun-powder, ball and shot,
and it was held that it was incumbent on the plaintiff to make that
out. Lord Abinger then says, "If the pistol was not loaded, it
would be no assault," and the prisoner would be entitled to an ac-
quittal, which was undoubtedly correct, under the declaration, for
the variance. Regina v. Oxford, 9 C. & P. 525.

One of the most important objects to be attained by the enact-
ment of laws and the institutions of civilized society is, that each of
us shall feel secure against unlawful assaults. Without such_ security
society loses most of its value. Peace and order and domestic happi-
ness, inexpressibly more precious than mere forms of government,
can not be enjoyed without the sense of perfect security. We have
a right to' live in society without being put in fear of personal harm.^
But it must be a reasonable fear of which we complain. And it
surely is not unreasonable for a person to entertain a fear of per-
sonal injury, when a pistol is pointed at him in a threatening rnanner,
when, for aught he knows, it may be loaded, and may occasion his
immediate death. The business of the world could not be carried on
with comfort, if such things could be done with impunity.

We think the defendant guilty of an assault, and we perceive
no reason for taking any exception to the remarks of the court.
Finding trivial damages for breaches of the peace, damages incom-
mensurate with the injury sustained, would certainly lead the ill-
disposed to consider an assault as a thing that might be committed
with impunity. But, at all events, it was proper for the jury to
consider whether such a result would or would not be produced.
Flanders v. Colby, post. Judgment on the verdict.^

^ The statement of Baron Parke in the case of Regina v. St. George was
as follows : "My idea is that it is an assault to present a pistol at all, whether
loaded or not. If you threw the powder out of the pan or took the percus-
sion cap off, and said to the party this is an empty pistol, then that would be
no assault, for the party must see that it was not possible he should be in-
jured ; but if a person presents a pistol which has the appearance of being
loaded, and puts the party into fear and alarm, that is what it is the object
of the law to prevent." ^, , ^r- • .

- Compare the statement of Belknap, in Y. B. 40 Edw. Ill, 24 pi. 35, cited
in the note to /. de S.v. W de S. , . ,

'■" Accord: Kline v. Kline, 158 Ind. 602 (1901). So in Morgan v. O Daniel,
21 Ky. L. 1044 (1899), it was held that it was error to charge the jury that
they must find for the defendant if they believed that the defendant did not
intend to strike the plaintiff. In Plonty v. Murphy, 82 Min. 268 (1901). a
verdict for the plaintiff was sustained since "the jury were justified (by the
evidence) in finding that the defendant's behavior was intentionally oppres-
sive, reasonably calculated to create apprehension of present violence ^and a
fear that he might go further, and commit a battery upon the plaintiff's per-

NELSON V. CRAWFORD. 2l'""^^ uv.- \SU


Supreme Court of Michigan, 1899. 122 Mich. 466.

Plaintiff and her husband reside on a farm about 40 rods from
the residence of defendant. One evening defendant dressed in
woman's clothes, navy-blue bicycle skirt, light waist, sailor hat with
flowers on it, and a thin, black face veil, took a parasol, and went
to her house. He had been a frequent visitor there, and was ac-
customed to play with her children. Although for many years he
had been adjudged insane or incompetent, his malady was of a
harmless character, and it had never been considered necessary to
restrain him. There is no testimony to show that he acted from
malicious motives, or with any intent to do injury to plaintiff or
any one. He said to others, shortly afterward, "I did it to have a
little fun ; to see if they had any nerve." As he approached the
back of the house, plaintiff stepped to the back door, and saw de-
fendant standing three or four rods away. She spoke to him, but
he made no reply, — only "mumbled." She testified that she was
frightened, and ran into the house, and into her bedroom, where
her husband was in bed; that she called to her husband to get up,

son, and that he displayed force sufficient, under the circumstances, to cause
the plaintiff to reasonably expect and fear an injury." On the other hand
an assault is so defined in Geiler v. Hendle, 50 Atl. 632 (Del. 1895), as to re-
quire "present ability" to do the injury attempted.

There is a conflict of authority as to whether an actual intention to do
the plaintiff physical harm is essential i n a criminal prosecutionTor assault.
In People v. Lilley, 43 Mich. 521 (1880)'; it is said that the test, that the per- '
son assaulted was put in fear can not be relied upon, and that "an assault is
an inchoate violence to the person of another with the present means to
carry the intent into effect," (but see Johnson v. Mack. 141 Mich. 99 (1905)),
though the point actually involved was whether the defendant, who had taken
some steps preparatory to attacking the prosecutor, had abandoned his pur-
pose before his acts amounted to an attempt to inflict violence as distinguished
from mere preparation. In State v. Chapman, 78 Ala. 463 (1885), it was held
that, since "to constitute an assault, there must be the commencement of an
act which, if not prevented, would produce a battery," it was no assault to
point a gun at another which the defendant knew to be unloaded, with the js/i> fje/wx.*
intention of producing fright, accord: People v. Sylva. 143 Cal. 62 (1904); e -

McKay v. State, 44 Tex. 43 (1875), a decision which led to a change in the
criminal code of that state making such conduct a simple assault, Pearce v.
Statt, 37 Tex. Crim. 643 (1897); in State v. Brozvn, 5 Pennew. 339 (Del.
1905), an assault is defined to be "an attempt with force and violence to do
injury to another, with the present ability to carry it into effect," on the other
hand it is held that neither intention nor ability to commit a battery is neces-
sary, Commonwealth v. White, 110 Mass. 407 (1872), "it is not the secret in-
tent of the assaulting party nor the undisclosed fact of his ability or inability
lo commit a battery, that is material; but what his conduct and the attending
circumstances denote at the time to the party assaulted. State v. Shepard, 10
Iowa 126 (1859) ; State v. Archer, 8 Kans. App. 727 (1898) ; State v. Llewel-
lyn, 93 Mo. App. 469 (1902) ; State v. Smith, 2 Humph. (Tenn. 1842) 457. all
cases where the defendant pointed a gim or pistol at another, which was either
alleged or proved to be unloaded or was not alleged or proved to be loaded;
and see State v. Daniel. 136 N. Car. 571 (1904), p. 575. semble. It is said in
People v. Lilley. 43 Mich. 521, that "an assault (criminal) may be made upon
a person even though he had no knowledge of the fact at the time."


telling him that "there is something here, — I don't know what it is ;"
that the defendant followed her into the house, and to the bedroom
door ; that her husband took up a stick of wood, raised it, and told
defendant to get out of the house ; that defendant then gave his
name ; that she was made ill by fright ; and that on October 22d, 42
days after the fright, she had a miscarriage, which she attributes to
the fright. The only demonstration he made was by tapping the end
of his parasol on the ground or floor. This suit is brought to recover
damages resulting from the fright. The court directed a verdict
for the defendant, on the ground {inter alia) that there was no as-
sault or attempt to do her any bodily or physical injury.

Grant, C. J. (After stating the facts.) We think the court
properly held that no violence was offered or threatened, and there-
fore there was no assault.

We think the clear weight of authority supports the instruction
given by the court below. In this case there is no evidence that de-
fendant intended any wrong or contemplated, or can be held to have
contemplated, the consequences alleged to have followed his acts. It
was not dark. The time was between "daylight and dark." Plaintiff
saw him when he was four rods from the house. Defendant was
approaching plaintiff's house along the customary way. Under these
circumstances and the authorities above cited, we think the instruc-
tion of the court was correct.

Judgment affirmed.

The other Justices concurred.^




Nisi Prius, 1704. 6 Modern Rep., 149.

Holt, C. J., upon the evidence in trespass for assault and bat-
tery, declared, —

'In Degenliardt v. Heller, 93 Wis. 662 (1896), it was held that to dis-
charge a revolver, not aimed or pointed at the plaintifif, though intending to
frigliten him, is not an assault; but see Johnson v. Mack, 141 Mich. 99 (1905),
in which, however, the plaintiff was shot by a revolver fired merely to frighten

That there i'; nn rip-ht to immunity from fear Qf^ven___Dersonal injury
caused bytTTe^ne glig ent acts of the de fpn^^^^- (^ by his wrongful act, other
frian one hostilelydifected against theplaintiff's person or intended to cause
him fear of hostile violence, see cases collected in the notes to Bucknam v.
Great Northern R. Co., post, and Mitchell v. Rochester Street Railway, post,
and Victorian R. Commissioners v. Coultas, L. R. 13 A. C. 222 (1888).

If no direct violence is threatened to the person of the plaintiff, acts in-