This section is from the book "Popular Law Library Vol4 Torts, Damages, Domestic Relations", by Albert H. Putney. Also available from Amazon: Popular Law-Dictionary.
The essential elements in an assault are the threat, some exercise of force, the present ability to commit the battery, and the reasonable belief on the part of the party against whom the threat is made that it will be, or is likely to be carried out.
In every assault there must be a threat, but this threat may be, and in the great majority of cases is, by actions rather than by words. The necessary threat is in general included in the exercise of force, which is also a necessary element in an assault.
This force must be physical,12 mere words are never sufficient by themselves to constitute an assault.13 Thus, insulting language,14 refusal to leave land upon which the party is trespassing,15 or improper proposals to a woman,16 do not amount to assaults. Again, mere preparation to do a violent injury to another, with no attempt to actually commit such act, is not an assault. Thus, picking up a stone, with no attempt or threat to throw it, is not an assault.17
7 Lane vs. State, 85 Ala., 11, 14, 4 So., 730.
8 Gray vs. State, 63 Ala., 66, 73. 9 3 Cyc, 1021.
10 State vs. Harden, 2 Speer, 152 note. " State vs. Philley, 67 Ind., 307. 12 Pockett vs. Pool. 11 Manitoba, 275.
13 1 Hawkins, P. C, 6281; State vs.
Davis, 23 N. C, 125, 35 Am. Dec., 735; Williams vs. State, 39 Miss., 521.
14 State vs. Milsaps, 82 N. C, 549. 15 Pockett vs. Pool, 11 Manitoba, 275.
The kind of physical force employed, however, is immaterial; and a very slight exercise of such force may be sufficient to constitute the assault. Raising a stick over a person's head and threatening to strike if he does not keep quiet;18 throwing a stone at a person; pointing a loaded fire arm at a person;19 attempting to drive over a person;20 improper actions towards a female;21 throwing vitrol at a person;22 or even turning to a person with a clenched fist and saying, "I have a great mind to strike you," all constitute assaults. Chasing a person,23 or advancing towards him in a threatening manner,24 are likewise assaults.
There can, however, be no assault, without motion of some kind. Standing still in front of a person to obstruct his way does not amount to an assault.25 It is also necessary that the force should have been directed against the person bringing the action for the assault.
16 State vs. White, 52 Mo. App., 285
17 Brown vs. State, 95 Ga., 481, 20
S. E., 495.
18 United States vs. Richardson, 5
Cranch (CO), 348. 19 People vs. Morehouse, 6 N. Y. Suppl., 763; State vs. Sullivan, 43 S. C, 205, 21 S. E., 4. There is a great conflict among the decisions upon the question as to whether pointing an unloaded gun at a person will likewise constitute an assault. For a decision holding that it will, see Commonwealth vs. White, 110 Mass., 407. For a decision to the contrary, see Chapman vs. State, 78 Ala., 463. The best test in such cases would probably be whether the person at whom the gun was pointed had reason to believe that it was loaded. See, State vs. Shepard, 10 Iowa, 126. Beach vs. Hancock, 27 N. H.,
223. The knowledge or lack of knowledge of the fact that the gun is unloaded, by the person pointing the gun can never be satisfactory test of liability.
20 People vs Lee, 1 Wheel Crim., 364.
21 State vs. West, 39 Minn., 321, 40 N. W., 249. This would include having sexual intercourse with a woman who consents thereto under mistake, such as that the party is her husband (Reg. vs. Williams, 8 C. A. P., 286), or that he is giving her proper medical treatment. Reg. vs. Case, 4 Cox, CO 220.
22 People vs. Stanton, 106 Cal.,
139, 39 Pac, 525. 23 Morton vs. Shapee, 3 C & P., 373.
24 Stephen vs. Myers, 4 C & P., 349,
193 C L., 414.
In an assault it is unnecessary that the force exerted shall reach the person at whom it was directed. This right of action for an assault, unaccompanied by a batten', has been recognized since as early as the middle of the fourteenth century, when damages were awarded in a case where a hatchet was thrown by a nocturnal disturber at a woman who put her head out of a window.26
It is often said that in order for there to be an assault, there must be an intention to commit a battery. This is not strictly correct; it is sufficient if his acts would indicate such intention to a person of ordinary courage. It is certain that if there is an intention to frighten a person, although with no intention of really injuring him, this is sufficient to constitute an assault. Thus, where a person standing about fifty feet from another fired his revolver in the direction of such other person, without any intention of shooting such person, but for the purpose of frightening or alarming him, intending thereby to create the impression that he would injure him by shooting, he was held guilty of an assault.27
There must also be a present ability, either real or apparent, on the part of the party making the threat to caarry out such threat.28 In People vs. Dodel,29 the decision of the lower court was reversed on account of the refusal of the Court to give the following instructions: "To constitute an assault the defendant must have the intent to strike, the ability to do so, and must have made the attempt to strike." An attempt to commit violence, accompanied by acts which if not interrupted will be followed by personal injury, is sufficient to constitute an assault, although the assailant may not be at any time within striking distance.30 It is even possible to commit an assault without being present, as where an explosive machine is sent through the mail.31
Stearns vs. Sampson. 59 Me., 568. 26- Y. B. 22 Ass.. 99. pl., 60.
27 State vs. Triplett, 52 Kan., 678,
35 Pac., 815. 28 Hays va. State, 77 Ind., 450;
State vs. Godfrey, 17 Ore., 300; Spears vs. State, 2 Tex. App., 244 29 77 Cal.,293; 19 Pac., 484.