The term "justifiable assault," which is often used, is an unfortunate and inaccurate one, as the word assault carries with it the element of unlawfulness. There are, however, certain instances where the application of physical force to another, or even the infliction of severe bodily injury, will not amount to an assault or battery.

First among the defenses which may be made is that the person inflicting the injury acted in self-defense.50 If a person is himself assaulted he may repel force with force.51 To support a plea of self-defense, however, there must be some actual attempt or offer to do bodily harm, or defendant must have had reasonable ground to apprehend a design on the prosecutor's part to commit a felony on him or do some great bodily harm, and that there was imminent danger to him of such design being accomplished.52 If a person has not been actually struck, he must have reasonable ground for believing that violence is to be offered to him, before he will be justified in resorting to force. In a case where defendant had committed an assault upon a person who was making no hostile demonstration towards him, evidence that such person had, prior to the assault by defendant, made hostile threats against him to others, and that such threats had been communicated to him, was excluded as constituting no defense.53 In an other case it was held that when a person assailed with threats and offensive language put his hand in his pocket, this did not authorize the inference by the assailant that he was about to draw a weapon, so that acts of violence committed against him were justified in self-defense.54

48 Commonwealth vs. Branham,

8 Bush, 387.

49 Hadley vs. State, 58 Ga., 309. 50 "Notwithstanding the defense of self and of one' s own has lone been recognized as a good justification for a battery, it appears that originally it was not so. Certainly in case of homicide the ancient doctrine was that self-defense was not a good plea. The man who was so unfortunate as to have to slay another to save himself was required to surrender and was remitted to jail, where he might hope to receive royal clemency. 3 note book, pl. 1216 (A. D., 1236), Y. B., 21 Edw., 11, 17, pl. 22; Fleta, Lib. I. C, 23, par. 14, 15. In Y. B.,21 and 22, Edw. I 12 (Rolls Ed.), p. 586, and Y.B., 12

Edw. II, 381, it was held that self-defense was not a good justification for a battery. Later year-book authorities very cautiously and guardedly admit the defense. Thus, in Y. B., 33 Hen. VI, 18 pl., 10, Privot, C. J., in recognizing the right of self-defense lays great emphasis on the duty to retreat. See also Y. B., 2 Hen. IV, 8 pl., 40, and Y. B.. 21 Henry VIII, 39, pl. 50, where with qualifications, the doctrine of self-defense is admitted." Street's Foundations of Legal Liability, Vol. I, note to p. 7. 51 State vs. Goering, 106 Iowa, 636; State vs. Carner, 89 Me., 74, 35 Atl., 1030; State vs. Hutchings, 24 S. C, 142.

The rule is well stated in the leading case of Hicks vs. State 55 in the following words: 'The theory of self-defense is that a party assailed has the right to repel force by force and he need not believe that his safety requires him to kill his adversary in order to give him the right to make use of force for that purpose. When his life is in danger, or he is in danger of great bodily harm, or when, from the acts of the assailant, he believes and has reasonable ground to believe, that he is in danger of losing his life or receiving great bodily harm from his adversary, the right to defend himself from such danger or apprehended danger may be exercised by him, and he may use it to any extent which is reasonably necessary. He need not believe that he can only defend himself by taking the life of his assailant. If the death of his assailant results from the reasonable defense of himself, he is excusable, whether he intended that consequence or not, or whether he believed such result was necessary or not."

52 3 Cyc, 1047; Long vs. People, 102 111., 331; Commonwealth vs. Mann, 116 Mass., 58; State vs. Dennison, 108 Mo., 541, 18 S. W., 926.

53 Martin vs. State, 5 Ind., Apo., 453, 32 N. E., 594. 54 Mitchell vs. State, 41 Ga., 527. " 51 Ind. 407

In People vs. Guidice,56 an instruction as to the right of self-defense, that if the prosecuting witness made the first hostile demonstration in such a manner as would have justified a reasonable man, in defendant's situation, in believing that prosecutor intended to inflict upon him great bodily harm, and if acting upon these appearances and believing it necessary for his own protection, and to prevent great bodily injury to himself, defendant struck the prosecuting witness with a deadly weapon, he was justified in doing so, was held correct.

It is the duty of a person threatened with violence to use all other reasonable methods of avoiding it before he resorts to violence on his part. Before a person is justified in taking fife in his own defense it is his duty to retreat as long as retreat is practical. The old law writers used to express this by saying that it was his duty "to retreat to the wall or the ditch," i. e., until some obstruction cut off further retreat.57 But where a person is assaulted in his own dwelling it has long been an established rule of law that he is not obliged to retreat from it, but may resist force with force.58 This right extends to a person who is assaulted on his own grounds, outside of his house 59 or in his place of business; 60 or in the room which he rents and occupies.61 The modern tendency of the law is to extend this right to any one who is assaulted in a place where he has a right to be.62

56 73 Col., 226, 15 Pac, 44.

57 1 Halle, P. C, 479-483. This rule is thus referred to in a decision, "As one who has been forced to the wall, or to the ditch, can withdraw no farther, the law says he may there stand at bay, and resist assault, even to the taking of life. Upon like principles a man's dwelling was regarded as the limit of retreat for him. In the turbulence of early times men made their habitations holds of defense, and were often compelled to protect themselves therein. One's dwelling was regarded as his place of refuge. Its sanctity in this regard was fully recognized by the law. A man in his own house was treated as 'at the wall,' and could not by another's assault be put under any duty to flee therefrom." Lee vs. State, 92 Ala., 15, 9 So. Rep., 407. 58 Lee vs. State, 92 Ala., 15, 9 So. Rep., 407; Palmer, vs. State, 9 Wyo., 59, Pac, 793; Wilson vs. State, 30 Fla., 234, 11 So. Rep., 556; DeForest vs. State, 21 Ind., 23.

This right of self-defense may be exercised in behalf of the members of one's immediate family, as a child,63 parent,64 husband or wife.65 The right also extends to the case of master and servant.66 The right does not exist where the party aided was the aggressor.67

A person may also use force for the protection of his property.68 The force used in such cases, must not be excessive;69 and in general the right in such cases is much more restricted than in the case of defense of one's person. A person who has requested a trespasser to leave his premises, or premises over which he has the right to control, may, upon the refusal of the trespasser to leave such premises, use all force reasonably necessary to eject him.70 If the owner of the premises uses unnecessary force71 in ejecting the trespasser, or attacks him after he has left the premises,72 he is guilty of a battery.

59 Beard vs. United States, 158 U. S., 550; Haynes vs. State, 17 Ga., 463; State vs. Cusbing, 14 Wash., 527, 45 Pac., 145.

60 Roberts vs. State, 68 Ala., 156.

61 Harris vs. State, 96 Ala., 24, 11 So. Rep., 255.

• "When a person, being without fault and in a place where he has a right to be, is violently assaulted, he may, without retreating repel force by force, and if, in the reasonable exercise of his right of self-defense, his assailant is killed, he is justifiable." Runyan vs. State, 57 Ind., 80.

63 Commonwealth vs. Malone, 114

Mass., 395. 64 Waddell vs. State, 1 Tex. App., 720.

65 State vs. Bullock, 91 N. C, 614.

66 Orton vs. State, 4 Greene., 140.

67 State vs. Johnson, 75 N. C, 174.

68 Whartons vs. People, 8 llI. App., 232; Commonwealth vs. Beats, 133 Mass., 396; Atkinson vs. State, 58 Nebr., 356, 78 N. W., 621.

69 Carter vs. Sutherland, 52 Mich., 597, 18 N. W., 375.

70 Green vs. Bartram, 4 C. & P., 308, 19 E. C. L., 400; Hammand vs. Hightower, 82 Ga., 290; Commonwealth vs. Clark, 2 Met-calf, 23, Long vs. People, 102 111., 331; American and English Annotated Cases, Vol I, note p. 888.

71 Abt. vs. Burgheim, 80 lll., 92.

Either a private individual or an officer may use proper force in making an arrest, or in preventing the escape of a criminal.73 In general, whoever is delegated to execute any public duty has the right to use whatever force may be necessary for the carrying out of such work.

Railway officials have the authority to use what force may be necessary for preserving order on trains and in railway stations, and for enforcing the rules of the Company, but excessive force cannot be used. Thus a passenger may properly be ejected from a train for refusal to pay his fare;74 but the forcible expulsion from a railway train of a passenger, although wrongfully on the train, before the train is brought substantially to a standstill, is an assault, for which the conductor so ejecting him is both civilly and criminally liable.75

The forcible restraint of a madman is not a battery; but such person must be dangerous before another is justified in restraining.76 A person is not guilty of a battery who tries to help a drunken man.77

Parents have the right to inflict moderate punishments upon their children without being liable for a battery.78 This right extends to those in loco parentis,79 and in a more limited degree to school teachers.80 This right does not belong to ministers or priests.81 It has been held that the superintendent of a poor-house has the right to inflict moderate personal punishment upon the immates of the house,82 but the tendency of modern law is towards the restriction of such right. Masters of ships, while at sea, also have the right to inflict moderate correction upon their sailors, in order to preserve the discipline of the ship.83

72 Brebach vs. Johnson, 62 111. App., 131.

73 See subject of Criminal Law, in Volume X, for discussion of question when a private individual may make an arrest.

74 State vs. Goold, 53 Me 279; State vs. Thompson, 20 N. H., 260: People vs. Jillson, 3 Park Crim., 234. In this last case it was held that a conductor is not guilty of assault and battery for ejecting a passenger who had refused to pay his fare, though, when the train had nearly stopped, the passenger offered to pay it. 75 State vs. Kenney, 34 Minn., 311,

25 N. W., 705. 76 Look vs. Dean, 108 Mass., 116;

Colby vs. Jackson, 12 N. H., 526.

77 Short vs. Lovejoy, (1752) cited in Bull N. P., 16.

78 Turner vs. State, 35 Tex. Crim., 369, 33 S. W., 972 and see subject of Domestic Relations Volume IV, Subject 10.

Finally, ordinary contact with another in a crowd, or a mere touching in earnest discourse,84 or to attract attention for a lawful purpose,85 or contact in any lawful game, or similar kinds of contact with the body of another, do not constitute batteries.