| Ark. | Jul 10, 1916
(after stating the facts).
An “assault and battery is the unlawful striking or beating the person of another.” Kirby’s, Digest, § 1584.
Mr. Bishop says: “The kind of physical force necessary to constitute an assault is immaterial.” See 2 Bishop’s New Crim. Law, section 28. Among the examples, he gives to illustrate the text is, “The taking of indecent liberties with a woman; even laying hold of and kissing her against her will.” Citing, Reg. v. Dungey, 4 Fost. & F. 99, 103. The author says (vol. 1, sec. 548): “Assault and battery are two offenses against the person and personal security, in the facts of most cases existing together, and practically regarded as one.” “A battery,” says he, “is any unlawful beating, or other wrongful physical violence or constraint, inflicted on a human being without his consent.”
In Mailand v. Mailand, 83 Minn. 453" date_filed="1901-06-14" court="Minn." case_name="Mailand v. Mailand">83 Minn. 453-455, it is said: “An intent to do violence is an essential ingredient of the offense, but the degree of violence is, of course, immaterial. The least or slightest wrongful and unlawful touching of the person of another is an assault.” See, also, Clark’s Criminal Law, p. 228.
The presumption is that Mrs. Turner was a chaste woman, and there is no evidence to the contrary. The testimony of the appellant to the effect that he believed his approaches would be acceptable to her because he had kissed her and she had kissed him six years ago, did not constitute an excuse or justification for. his laying his hands upon her with the view of kissing her as he had done on the previous occasion. The undisputed proof shows that on the former occasion when he kissed .her, she was a single woman. Since that time she had married, and at the time of the alleged offense, had her baby' with her. The circumstances were entirely different.
Although the appellant had been the prosecutrix’s family physician, as he says, all her life, that fact and the fact that he had kissed her before when she was a maiden did not justify him in laying his hands upon her before he knew whether or not she would consent to these advances. The presumption must be indulged that a virtuous woman would not have consented to be kissed under such circumstances. It was unlawful for appellant to Mss Mrs. Turner without her consent, and he had no right to presume from his past conduct and his professional relations with her that’she would consent. The undisputed testimony shows that she did not consent. It is the sacred right of every woman to protect her virtue. Hence, she can, if she will, hold her person aloof from the contaminating touch of any man of lecherous inclination. No man, whether his purpose be lascivious or otherwise, has any right to lay his hands upon a chaste woman, indulging the presumption that she will consent to an act wMeh it would be unlawful for him to commit without her consent, and in the absence of proof to warrant the inference that Mrs. Turner did consent to the act of appellant in laying Ms hands upon her for the purpose of kissing her, it must be held that the conduct of appellant in doing so was an assault and battery within the meaning of the above authorities.
The appellant relies upon Clerget v. State, 83 Ark. 227" date_filed="1907-06-17" court="Ark." case_name="Clerget v. State">83 Ark. 227, as supporting his contention that the evidence was not sufficient to convict him. In that ease the utmost that the evidence tended to prove was that Clerget told his companion Malone while they were making the. rounds to warn road hands to work, that “somewhere on our rounds there are some girls we can go to and have a good time.” When they reached a certain residence, Clerget went in and gave the sign to Malone that they had reached the place mentioned. Clerget went in and Malone followed him. Clerget was asking a young lady if any one was there subject to road duty, and she replied that her brother was. Clerget commenced writing a warning notice to him, and then Malone touched the young lady upon the chin, whichsheindignantlyresented. Weheld upon these facts that Clerget was not guilty of an assault and battery. Clerget did not lay his hands upon the young lady, and the evidence was not sufficient to show a conspiracy between Clerget and Malone to do an unlawful act, and hence Clerget was not guilty. In that case Malone, of course was guilty of an assault and battery, because he took undue liberty with the person of the young woman without her consent, just as appellant did with Mrs. Turner. The court therefore, upon the undisputed evi-. denee, might have so declared as a matter of law.
The judgment is right, and it is therefore unnecessary for us to consider the errors assigned in the rulings of the court in giving and refusing prayers for instructions, and in the admission of testimony.
But the offense of a breach of the peace by using abusive language is not embraced in the act of assault and battery. They áre not of the-same generic class and one can not be included in the other, although they may arise out of the same occurrence or transaction. This statute (section 5633) was not intended to prevent the State from carving out and prosecuting for separate and distinct offenses growing out of the same occurrence or transaction. The statute was only designed to prevent more than one prosecution for one and the same act constituting the same offense.. The use of insulting words is one offense and assault and battery is an entirely separate and distinct offense, although- the abusive and insulting words may have been used at the time of and in connection with the assault and battery. . The use of the insulting words and the assault and battery were different acts. They were not “embraced in the act committed” within the sense of the statute.
. There are no reversible errors in the record, and the judgment is therefore affirmed.