Assault, any wilful and unlawful attempt or offer, with force or violence, to do a corporal hurt to another. In New York it has been added to a definition of substantially the same import, that the assault may consist of any act tending to such corporal injury, accompanied with such circumstances as denote at the time an intention coupled with the present ability of using actual violence against the person. But this illustration is not quite correct, for to cover the cases of pointing firearms, though they are not loaded, at persons, the ability to do the injury need not be actual, but it is sufficient if it be only apparent. Nor need there be an actual intention to do the violent act; for if the assaulter causes it to be believed that he has such an intent, though he has not in fact, the assault may be committed. There must be some exhibition or threatening appearance of force, and this must ordinarily be of physical force. A threat alone is not an assault; yet such threat, spoken under circumstances which of themselves, so to speak, import restraint or force, may constitute the offence. One who, having an open knife in nis hand, and being within striking distance of another, demanded with threatening words the surrender of a certain paper, was held guilty of an assault.
Force may be exhibited by the raising of the hand or a weapon as if to strike, or to hurl something; or by the pointing of a gun or pistol within the range of the arm, as if to shoot with it, and even though it is not loaded, if it is reasonably supposed to be loaded by the person assaulted; or by wilfully riding a horse so near a foot passenger, or driving or attempting to drive a carriage against the carriage of another, or even by driving it toward the other, so as in any of these cases to excite reasonable fear of injury; or by pursuing another with a dangerous weapon, and coming so near him that he may reasonably apprehend danger. But an assault may be committed, even though the violent show of force is not actually within reaching distance, provided it be so near as to excite a fear of immediate harm in a person of fair firmness. Thus, where one was approaching another with clenched fist, as if to hit him, but was stopped by bystanders just before he got near enough to do so, he was held guilty of an assault. The force, and thus the assault, may exist to the eye of the law, even though it is not apparent on the face of the facts, and where from the submission or consent of the victim it seems that it could not have existed.
This is illustrated by those cases in which schoolmasters or physicians have, by virtue of the authority or the trust reposed in them in these relations, induced young girls to submit to indecent maltreatment. In such cases the consent is regarded by the law as neither intelligent nor voluntary. Further, the force must be unlawful. Therefore it is not an assault when a father or a schoolmaster, for good reasons, chastises a child within proper limits. - Certain assaults are described as aggravated assaults. Such are assaults upon magistrates in courts of justice, or against other officers of the law\ But it seems that to constitute such an offence, the person assaulted must be known to be such an official, or there must be grounds upon which it can fairly be presumed that he was known to be so. - Assault is a misdemeanor; that is to say, it is of an inferior degree of criminality, and is ordinarily punishable by fine or imprisonment, or by both. - Assault must be distinguished from battery. The words are commonly used together, for the reason that the two offences are usually committed together; but they are in fact distinct and separate. Battery is the actual infliction of the threatened violence.
But the law will not permit even the threat of it, and therefore makes that a substantial offence, namely, an assault. (See Battery).