78 Ala. 463 | Ala. | 1885
The defendant was indicted for an assault and battery upon the person of one McLeod, and was convicted of a mere assault.
It may be that, if the indictment had been for rosbbery, the facts in evidence would have sustained the allegation of an assault, which, in cases of that nature, is often merely constructive ; for every attempt at robbery, or to commit rape, or to do other like personal injury, involves within it the idea of an assault, either actual or constructive.
The present conviction, however, can be sustained only on the theory, that it was an assault for the defendant,to present or aim an unloaded gun at the person charged to be assaulted, in such a menacing manner as to terrify him, and within such distance as to have been dangerous had the weapon been loaded and discharged. On this question, the adjudged cases, both in this country, and in England, are not agreed, and a like difference of opinion prevails among the most learned commentators on the law. We have had occasion to examine these authorities, with some care, on more occasions than the present; and we 1 are of the opinion that the better view is, that presenting an unloaded gun at one who supposes it to be loaded, although within the distance the guu would carry if loaded, is not, without more, such an assault as can be punished criminally, although it may sustain a civil suit for damages. The conflict; of authorities on the subject is greatly attributable to a failure to observe the distinction between these two classes of cases.' A civil action would rest upon the invasion of a person’s “ right . to live in society without being put in fear of personal harm ;” and can often be sustained by proof of a negligent act resulting in unintentional injury. — Peterson v. Haffner, 26 Amer. Rep. 81; Cooley on Torts, 161. An indictment for the same act • could be sustained only upon satisfactory proof of criminal in
It is true that some of the modern text-writers define an assault as an apparent attempt by violence to do corporal hurt to another, thus ignoring entirely all question of any criminal intent on the part of the perpetrator. — 1 Wharf. Cr. Ev. § 603; 2 Bish. Cr. Law, § 32. The true test can not be the _ mere tendency of an act to produce a breach of the peace; for opprobrious language has this tendency, and no words, however violent or abusive, can, at common law, constitute an assault. It is unquestionably true, that an apparent attempt to do corporal injury to another may often justify the latter in promptly resorting to measures of self-defense. But this is not because such apparent attempt is itself a breach of the peace, for it may be an act- entirely innocent. It is rather because the person who supposes himself to be assaulted, has a right to act upon appearances, where they create reasonable grounds from which to apprehend imminent peril. There can he no difference, in reason, between presenting an unloaded gun at an antagonist in an affray, and presenting a walking-cane, as if to shoot, provided he honestly believes, and from the circumstances has reasonable ground to believe, that the cane was a loaded gun. Each act' is a mere menace, the one equally with the other ; and mere menaces, whether by words or acts, without intent or ability to injure, are not punishable crimes, although they may often constitute sufficient ground for a civil action for damages. The test, moreover, in criin-i inal cases, can not be the mere fact of unlawfully putting one: in fear, or creating alarm in the mind; for one may obviously be assaulted, although in complete ignorance of the fact, and, therefore, entirely free from alarm. — People v. Lilley, 43 Mich. 525 ; s. c., 1 Crim. Law Mag. 605. And one may be put in ' fear under pretense of begging, as in Taplin’s case, occurring
The opposite view is sustained by the following authors and adjudged cases: 7 Bish. Cr. Law (7th Ed.), § 32; 1 Whart. Cr. Law (9th Ed.), 603, 182; Reg. v. St. George, 9 C. & P. 483 ; Com. v. White, 110 Mass. 407; State v. Shepard,, 10 Iowa, 126; State v. Smith, 2 Hump. 457. See, also, 3 Greenl. Ev. (14th Ed.) § 59, note b; 1 Arch. Cr. Pr. & Pl. (Pomeroy’s Ed.) 907, 282-283; State v. Benedict, 11 Vt. 238; State v. Neely, 74 N. C. 425 ; s. c., 21 Amer. Rep. 496.
The rulings of the court were opposed to these views; and the judgment must therefore be reversed, and the cause remanded.
