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body. Shylock complained that the merchant had "spit upon his Jewish gaberdine," and the Venetian court practically held that his own proposal of revenge was an assault. In Draper v. Baker, 61 Wis. 450, a verdict of $1,200 against a man for spitting in a woman's face in a courthouse was deemed not excessive. In People v. McMurray, Wheel. Cr. Cas. 62, Mrs.

Parker, "a respectable woman, living in the Bowery," having sold the defendant Jane some paint, and, going to her house to dun her for payment, found her painting, and some of the very paint from her brush was dropped out of a second-story window on Mrs. Parker while retreating, "which effectually destroyed her silk dress." This was really too much—to have her gown ruined by the paint which had not been paid for,· and the court held this an assault if proved. The counsel do not appear to have made the point that Mrs. P. was contributorily negligent in going collecting in a silk gown. But the jury found the defendant not guilty, and so the respectable Mrs. Parker not only lost her gown but also her paint, except that which she brought away on her gown.

The law goes even further and holds that there may be an assault even where there is no touching or threat of touching, provided the acts in question indicate the purpose to assault, as where one enticed a child into a secluded place, and was there detected near her indecently exposed. Hays v. People, I Hill, 351.

If the act is intrinsically and grossly careless or dangerous, the force need not be directly nor even intentionally communicated. As in the famous ancient case of Scott v. Shepherd, 2 Bl. 892, where the firework was tossed from hand to hand by several trying to avoid it, and the original thrower was held responsible for its final explosion; and so where one pushed a drunken man against another and hurt the latter, Short v. Lovejoy, Bull. N. P. 16; and so where one whipped his horse until it ran

away and against a man, Gibbons v. Pepper, 4 Mod. 405.

If the act is so grossly negligent or reckless as to indicate a disregard of human life or safety, the actor may even be punished criminally. As in the case of a careless railway conductor, or a careless keeper of a dangerous wild beast, or one who "did not know it was loaded." Reg. v. Spencer, 10 Cox C. C. 525; Com. v. Hartwell, 128 Mass. 415; 35 Am. Rep. 351; State v. Hardie, 47 Iowa, 647; 29 Am. Rep. 496.

But ordinarily the act must be intentional. It does not arise from mere ordinary negligence. So if a man should break his wife's ribs while lovingly embracing her, it would not be a criminal assault. Queen v. Clarence, 22 Q. B. Div. 23; and so if he injures another while driving fast. Com. v. Adams, 114 Mass. 323; 19 Am. Rep. 362. The wife and the foot passenger must keep out of the way.

In all such cases, however, there may be a recovery of damages in a civil action, although the criminal intent is lacking. As for example, when a careless bicyclist rides down a foot passenger, Mercer v. Corbin, 117 Ind. 450; 10 Am. St. Rep. 76; or where one is injured by the glancing of a bullet carelessly fired at a mark, Welch v. Durand, 36 Conn. 182; 4 Am. Rep. 55; or is killed by a discharge of musketry in practice by a regiment at the command of the colonel, one gun being carelessly left loaded, Castle v. Duryea, 32 Barb. 480; or where an infant shoots another while playing with a gun, Conway v. Reed, 66 Mo. 346; 27 Am. Rep. 354; or negligently shoots another while hunting, Haskins v. Watkins, 77 Hun. 360; or while "firing a salute" to induce a restaurant keeper to open unto him, Daingerfield v. Thompson, 33 Gratt. 136; 36 Am. Rep. 783. In none of these instances of mere carelessness without malicious intent is there any criminal liability, but the careless party must respond in money. Nor can he invoke the principle

that he is not answerable for inevitable accident or the act of God, if his act was unlawful or the injury intentional or committed with an original design rendering the injury possible. See notes, I Eng. Rul. Cas. 208, 209.

The law formerly made so much allowance for the ignorance of physicians that it would not punish for murder the quack Thompson, who was the founder of the "Thompsonian" school of vegetable remedies, sweating and purging, and who purged one patient of his life. (This precious imposter had two remedies which he called "tom-cats" and "well-my-gristle.") Com. v. Thompson, 6 Mass. 134. And this reprehensible doctrine is followed in State v. Schulz, 55 Iowa, 698; 39 Am. Rep. 187. But the Massachusetts court has gone back on the old doctrine, Com. v. Pierce, 138 Mass. 165; 52 Am. Rep. 264; and Arkansas is of the same mind, State v. Hardister, 38 Ark. 605, 43 Am. Rep. 5. So the prudent traveler will seek Boston or Hot Springs, rather than Des Moines. It seems to have been the ancient notion, however, that if a sick man intrusted his body for treatment to one whom he knew for a quack, or not to profess skill in the particular disease, it was at his own risk, for the trustee should not be held to a kind or degree of skill that he did not possess. Sir William Jones says (Bailments, 100): "A man who had a disorder in his eyes called on a farrier for a remedy, and he applied to them a remedy commonly used for his patients; the man lost his sight and brought an action for damages, but the judge said no action lies, for if the complainant himself had not been an ass he never would have employed a farrier."

So sacred does the law regard the human body that it strongly resents any violence to anything connected with it, although temporarily, and not even forming a customary appendage to it. As for example, driving against a carriage in which, or striking a horse on which, another is riding, or striking

a cane held by another. In Res publica v. De Longchamps, 1 Dallas, 114, the chevalier defendant, having a grievance against the French consul-general, Francis Barbe Marbois, addressed abusive words to him in French at the consulate, and subsequently struck his cane which he was carrying, in the public street, which cane the latter thereupon applied to the person of the chevalier "with great severity." It was held that as the chevalier committed the first assault, he was worthy of punishment in spite of his being a dragoon of Noailles, and for his "atrocious violation of the law of nations" he was sentenced to pay one hundred French crowns to the commonwealth, to be imprisoned for two years, and to give security to keep the peace in a thousand pounds, and to pay the costs. Probably if the chevalier had foreseen what a price a blow on that cane was to cost him he would have applied it to the body of the Monsieur Marbois.

A still more remarkable case is State v. Davis, 1 Hill (S. C.), 46. Robertson, a deputy sheriff, took possession of a negro slave by virtue of a chattel mortgage, and, having occasion to stop over night at an inn to prevent the evaporation of the property, he chained it to the bedpost, and tied it with a rope to his own body in the bed. The defendants broke the chain, cut the rope, and carried off the negro, without any force to the body of Robertson, and this was held an assault and battery. "The rope was as much identified with his person, as the hat or coat which he wore, or the stick which he held in his hand." The court made no allusion to injury to feelings on account of Robertson's strong attachment to the negro.

So in Dubuc De Marentille v. Oliver, Pennington, 275, it was deemed an assault to strike a horse which another was driving; and so in Clark v. Downing, 55 Vt. 259; but it was held to the contrary in Kirland v. State, 43 Ind. 146. The court

approved the Davis case, on account of "The close and intimate connection which existed between the prosecutor and the negro; but no such identity or connection between the prosecutor and his horses in the case in judgment is shown." That is to say that violence to the person may be communicated through a rope tied to that person, but not through reins held in the hands of that person! And yet in an ancient case, it was adjudged that excessive beating at the door of a house in which the prosecutor was sitting was an assault! Rex v. Hood, Say, 167. In this case the knocking at the gate was more awful than that in "Macbeth," for it caused the miscarriage of the prosecutor's wife. Another case, involving the like unfortunate consequences, is Com. v. Taylor, 5 Binney, 277, in which the prisoner, being inside the house, made a great and frightful noise, against the peace of the commonwealth and of Mrs. Strain. Judge Brackenridge, a wise judge and a merry, treated the subject with entertaining humor and learning. The court did not precisely christen the offense, but called it a misdemeanor. It was held of old that upsetting a chair or carriage in which one was sitting, or a ladder on which one was standing was an assault. Hopper v. Reeve, 7 Taunt. 698; Collins v. Renison, Say, 138.

It even seems that an insult to a counterfeit presentment of the human body may constitute a criminal offense. Thus in the famous case of Mezzara, 1 City Hall Recorder, 113, this doctrine was invoked in protection of a portrait. The defendant was a portrait painter, who, having painted a portrait of Mr. Palmer, counselor and attorney-at-law, master in chancery and notary public, which was not satisfactory to the sitter and which he declined to accept, added a pair of ass's ears to it; it was seized by the sheriff on an execution in favor of Palmer, and exposed for sale, and the defendant himself drew attention to the picture by advertisement of the sale in a newspaper.

It was contended for the defendant that he had not published the libel, that the publication was by Palmer himself through the sheriff as his agent, and that the painter merely intended to turn the portrait into a picture of Midas. There was a conviction, and defendant was fined $100. The reporter indulged in classical allusion to Midas, and in some tolerably amusing comment, but posterity will never cease to regret that he did not give instead the speech of William Sampson for the prisoner.

It is undoubtedly the law that one is not without remedy against another who assumes to exhibit or sell his portrait without his consent, as in the case of a photographer, or one who puts a lady's portrait on his merchandise, as for example, on cigarettes, to commend it to the purchasing public. The court will interpose its injunction to prevent such an outrage. Pollard v. Photographic Co., L. R., 40 Ch. Div. 345; Moore v. Rugg, 44 Minn. 28; Corliss v. E. W. Walker Co., 64 Fed. Rep. 280. But this right is strictly personal, and a father has no such proprietorship of his child's body as will enable him to restrain the publication of its picture. Murray v. Gast Lithog. Co., 8 Misc. 36.

But it seems that a stage representation or caricature of a person is not so unfavorably regarded as to warrant an injunction against it, however it might be held of an action of libel. So at least it has been thought in England. It would indeed be a pity to have Dixey restrained from imitating Irving as Hamlet," although it seems that the court would interfere to prevent the exhibition of a wax figure of a man who had been tried and acquitted of murder. Monson v. Tussaud [1894], Q. B. 671.

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It is familiar law that a mere threat of assault, in circumstances evincing the intention and ability to commit it, will constitute an assault. Thus to drive a horse intentionally so near a person as to endanger his person is an assault. State v. Sims, 3 Strob.

137. In an extreme case it was held that where a negro ran after a white woman, through the woods, shouting "Stop!" this was an assault with intent to commit rape, although the defendant relinquished the pursuit. State v. Neely, 74 N. C. 75; 21 Am. Rep. 496. The court put this on the notorious instinct and common practice of the blacks, with a reference to the gallinaceous and the canine race, and scouted the suggestion that he might have intended mere robbery. Two judges dissented, and the decision was fairly overruled by general laughter, and the court frankly took it back in State v. Massey, 86 N. C. 658; 41 Am. Rep. 478.

There is a good deal of learning and nice discrimination in the books respecting a contingent threat of assault. For example, if the prisoner said, "If it were not for" something or another which effectually demonstrates that he could not possibly or certainly would not commit the threatened act, it is not an assault. Thus all the recent oral violence of our distinguished fellowcitizens, Messrs. Corbett and Fitzsimmons, at safe distance, constitutes no assault. As we do not intend this article to be learned or exhaustive, we refer the reader to sundry citations concerning contingent threats which were made in a serious vein in a note, 39 Am. Rep. 712, and in Browne's Criminal Law, p. 37.

The law entertains so high a regard for the physical safety of some of the most worthless members of society that it will not permit them voluntarily to hurt one another. At least so it is held in England, in case of an angry tussle. Reg. v. Lewis, 1 C. & R. 419. And so in King v. State, 4 Tex. Ct. App. 54; 30 Am. Rep. 160; Shay v. Thompson, 59 Wis. 540; 48 Am. Rep. 588, where two old men " fought with great spirit and brutality," and the defendant "gouged both eyes of the plaintiff," all about a disputed wire fence; State v. Newland, 27 Kan. 764; Grotten v. Slidden, 84 Me. 589; Bar

holt v. Wright, 45 Ohio St. 577; 4 Am. St. Rep. 535. In this country, as to prize-fighters, it has been adjudged both ways. Chamber v. State, 14 Ohio St. 437; Com. v. Colberg, 119 Mass. 350; State v. Burnside, 56 Vt. 445; 48 Am. Rep. 801. As might be supposed, the New England courts are stricter than that of Ohio on this point. The Massachusetts court draw a just distinction between "manly sports calculated to give bodily strength, skill and activity, and 'to fit people for defense, public as well as personal, in time of need,"" and encounters that serve no useful purpose, and tend to breaches of the peace." This was before the days of the favorite Boston hero, John L. Sullivan. A friendly set-to with soft gloves in private is not objectionable, but if the parties should fight till one was killed it might be manslaughter. Reg. v. Young, 10 Cox Cr. C. 371. The Divine law forbade mutual combats (Exodus, xxi, 18, 19), and this was followed in civil actions in Adams v. Waggoner, 33 Ind. 531; 5 Am. Rep. 230; Bell v. Hansley, 3 Jones Law, 131; Dole v. Erskine, 35 N. H. 503.

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It has even been held "that one may not maim himself, because that unfits him for fighting for his lord, the King; and consequently another may not maim him at his request"; both are guilty. Rex v. Wright, 1 East Pl. Cr. 396; People v. Clough, 17 Wend. 351; 31 Am. Dec. 303. But if one merely whips another, at his request, he commits no offense. State v. Beck, 1 Hill (S. C.), 363; 26 Am. Dec. 190. The complainant being found by the defendant in possession of property stolen from him, earnestly entreated him to whip him rather than send him to jail, and he complied reluctantly and molliter. The judge observes: "A surgeon who, for his patient's health, cuts off a limb, is not guilty of mayhem; or if one plucks a drowning man. out of a river by the hair of his head, this is no assault. If according to the prescription of the physician in the Arabian Nights, a physician should beat his

patient with a mallet for the bona fide purpose of restoring his health, though this might be malpractice, it would be no assault." This doctrine is applied, in the absence of statutes of abortion, to the case of a woman consenting to an abortion upon her person. Com. v. Parker, 9 Metc. 263; 43 Am. Dec. | 396; State v. Cooper, 2 Zab. 52; 51 Am. Dec. 248. But if one kills another at his request, it is murder. Blackburn v. State, 23 Ohio St. 146. A curious action was brought recently in Germany against a surgeon for the recovery of the plaintiff's leg which he had amputated and assumed to carry away. I should think that title would not pass without consent and delivery.

It would be superfluous to dwell on legislation against duelling and challenges to duels, or to remark on the amelioration of the ancient law by which trial by combat was permitted. And so of the inhibition. and detestation of suicide at common law, so different from the respectability of the act in classic times and countries.

But where the assault cannot be effectuated without the active, innocent assistance and co-operation of the assaulted person, courts differ. As for example, where one delivers to another a deleterious drug which the latter incorporates into his own frame. In Com. v. Stratton, 114 Mass. 303; 19 Am. Rep. 350, the prisoner having given a young woman figs containing "love powders," to wit: cantharides, of which she ate, this was held an assault and battery; and so in People v. Blake, 1 Wheel. Cr. Cas. 490, it was held where a "young black woman put cow-itch into Mrs. Blyth's bathing water (although no stress was laid on the prisoner's youth or color); and this was followed in Carr v. State, 135 Ind. 1; 41 Am. St. | Rep. 408; 20 L. R. A. 863; but in Gamet v. State, 1 Tex. Ct. App. 605; 28 Am. Rep. 425, it was held to the contrary in respect to putting strychnine in coffee, and to the latter effect are English cases. Reg. v. Hassam, 2 C. & K. 912. If there had been

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a law court in Eden, it is impossible to imagine what it would have held of Eve's administering the apple to her spouse.

The law sometimes deems that a person has been assaulted even where he was ignorant of it. As where a woman is deceived by her physician as to the surgical necessity or propriety of his interference with her body. Reg. v. Case, I Den. C. C. 580. And so if the complainant was asleep or otherwise insensible at the time, or had not sense enough to know that the act was unlawful. Com. v. Stratton, supra. And so

if a wife consents to intercourse with a stranger, supposing him to be her husband. Rex v. Williams, 8 C. & P. 286. And so where a boy of eight ignorantly acquiesces in indecent liberties. Reg. v. Lock, L. R. 2 C. C. 10. The doctrine that a woman may not complain of familiarities or violence to which she consented is too familiar to justify the citation of authorities. It has generally been held that where a wife yields to a stranger supposing him to be her husband, it is not rape. Bloodworth v. State, 6 Baxt. 614; 32 Am. Rep. 546. But in Ireland they hold rule more humane and consistent with morality. Queen v. Dee. 15 Cox C. C. 579.

But though the law does not allow one to assault himself, nor consent to an assault on himself by another, yet it will countenance him in assaulting another to protect himself. As in the famous case of Laidlaw v. Sage, 73 Hun. 125, where the defendant, fearing a crank who had come into his office demanding money with a threat of blowing him up with a dynamite bomb which he had in his bag in case of refusal, slyly pulled the plaintiff between the crank and himself, under pretense of shaking hands with him, and the plaintiff was in consequence badly shattered by the explosion. Mr. Sage is the notorious "put and call" broker of New York, but the court held that as Laidlaw had not called for this action, Sage could not lawfully put him in the position of a human shield. At

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