CHAPTER XIV. ASSAULTS. Section 230. Definition-Gist of the offense. 231. An apparent intention sufficient. 232. An apparent ability sufficient. 233. Mere words or gestures in sufficient. 234. Mere preparation insufficient. 237. The aggravated assaults. 239. Adaptation of act done and lish purpose. 240. Proof that death of victim would have been murder essential, but not sufficient. 241. Assault with intent to commit manslaughter. 242. Assault with intent to kill. 243. Assault with intent to rob. § 230. Section 244. Assault with intent to commit rape. 245. Transferability of the crim- 246. Assault with intent to do 250. Taking indecent liberties with women. 251. Mere familiarity not a crime. 252. Consent obtained by fraud. 253. Taking indecent liberties with children-Illinois statute.. 254. The force can be applied indirectly. 255. Administering poison or other deleterious drugs. 256. Striking a substance attached 257. Setting a dog on a person. Definition-Gist of the offense.-A criminal assault is an unlawful attempt to commit a physical injury upon another, or unlawfully putting another in fear of personal violence. In other words, it is an unlawful inchoate violence to the person of another with the present ability, either real or reasonably apparent, of carrying it into effect. "2 Among other definitions by standard authorities are the following: "Assault is an attempt or offer with force and violence to do a corporal hurt to another;" it is an "attempt or offer to beat another without touching him;' "an assault is an apparent attempt, by violence, to do corporal hurt to another;" "an assault is an unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of immediate physical injury to a human being."4 The essence or gist of assault is the intention to do harm.5 8 § 231. An apparent intention sufficient.-Under the early English rule an actual intention to carry out the threatened harm was essential." In this country some courts have followed this rule, while others have repudiated it. The true view is that a reasonably apparent intention is sufficient. Thus, when a person points an unloaded gun at another, or threatens him with a club or other weapon, and thereby puts him in fear and causes him to retreat, or act on the defensive, he commits an assault irrespective of his actual intent. There is no assault if the intention 1 Hawk. P. C. (6th ed.), ch. 62, 1. See also 1 East P. C. 406; 1 Russ. on Crimes (7th ed.) 879. 23 Bl. Comm. 120; 4 Bl. Comm. 216. 31 Whart. Crim. L. (11th ed.), 797. 42 Bish. New Crim. L. (8th ed.) § 23. 5 Richels V. State, 1 Sneed (Tenn.) 606. 61 Russ. on Crimes (7th Eng. ed.) 880. 7 Chapman v. State, 78 Ala. 463, 56 Am. Rep. 42; State v. Sears, 86 Mo. 169; White v. State, 29 Tex. App. 530, 16 S. W. 340; State v. Godfrey, 17 Ore. 300, 20 Pac. 625, 11 Am. St. 830. 8 Commonwealth v. White, 110 Mass. 407, Beale's Cases 450; State v. Rawles, 65 N. Car. 334; State v. Triplett, 52 Kans. 678, 35 Pac: 815. 9 Commonwealth v. White, 110 Mass. 407, Beale's Cases 450; Price v. United States, 156 Fed. 950, 15 L. R. A. (N. S.) 1272, 13 Ann. Cas. 483, Derby's Cases, 321; People v. Hopper (Colo.). 169 Pac. 152; State v. Cancelmo, 86 Ore 379, 168 Pac. 721. 1 is to aid the person who is claimed to have been assaulted. 10 To constitute an indictable assault, however, the overt act must be accompanied with an intent, either express or implied, to do harm to another. But when the injury threatened would be the natural consequence of the overt act, the unlawful intent will be presumed. In the aggravated assaults, however, in which the gist of the offense is the specific intent, the presumption is not conclusive. 12 11 § 232. An apparent ability sufficient. It has been held, both in England and in this country, that an actual ability to carry out the threatened violence is an essential element of assault. 13 This view, however, has been repudiated by some courts, both in England and in this country.14 The true view is that a reasonably apparent present ability is sufficient. The reason is that such a condition, accompanied by the threatened violence, tends directly to cause a breach of the public peace. It is well settled that any act, not excusable or justifiable, which tends directly to cause a breach of the public peace, is indictable.15 In some states, 10 State v. Hemphill, 162 N. Car. 632, 78 S. E. 167, 45 L. R. À. (N. S.) 455n. 11 Conn v. People, 116 Ill. 458, 6 N. E. 463; People v. Jassino, 100 Mich. 536, 59 N. W. 230; Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1n; Smith v. Commonwealth, 100 Pa. St. 324; Studstill v. State, 7 Ga. 2; Reg. v. Jones, 9 Car. & P. 258, 38. E. C. L. 159. 12 People v. Sweeney, 55 Mich. 586, 22 N. W. 50. 13 People v. Lilley, 43 Mich. 521, 5 N. W. 982; Tarver v. State, 43 Ala. 354; State v. Sears, 86 Mo. 169; State v. Godfrey, 17 Ore. 300, 20 Pac. 625, 11 Am. St. 830; State v. Napper, 6 Nev. 113; Chapman v. State, 78 Ala. 463, 56 Am. Rep. 42; Blake v. Barnard, 9 Car. & P. 626; Reg. v. James, 1 Car. & K. 530. 14 Commonwealth v. White, 110 Mass. 407, Beale's Cases 450; State v. Martin, 85 N. Car. 508, 39 Am. Rep. 711n; State v. Paxson (Del.), 99 Atl. 46; Crumbley v. State, 61 Ga. 582; People v. Lee Kong, 95 Cal. 666, 30 Pac. 800, 17 L. R. A. 626, 29 Am. St. 165, Beale's Cases 142, Reg. v. St. George, 9 Car. & P. 483. 15 Commonwealth v. Taylor, 5 Binn. (Pa.) 277; Commonwealth v. White, 110 Mass. 407, Beale's Cases 450 however, including Illinois, an actual present ability is required by statute. § 233. Mere words or gestures insufficient.-According to the ancient common law even words might constitute an assault. This view, however, long since passed away.18 Nor can mere words, howsoever abusive, constitute a sufficient provocation to excuse an assault and battery.17 It has been held that any threatening gesture, manifesting in itself, or by words accompanying it, an immediate intention coupled with ability to commit a battery, constitutes an assault. 18 There must be, however, violence actually offered, and within such distance that harm may follow it if the would-be assailant be not hindered." When an act is done with intent to commit an assault, but the intent is voluntarily abandoned, or the would-be assailant is prevented from carrying it into effect, while the distance between the parties is too great to commit a battery, no assault is committed.20 On the other hand, it has been held that where a person approaches another with gesticulations and menaces, but not with the intention of doing him harm, it is not an assault.21 A mere insulting gesture does not constitute an assault. Thus where a man makes a kissing sign at a woman by puckering up his lips and smacking them, without manifesting any intent to lay hands on her or kiss her without her consent, he is not guilty of assault.22 161 Hawk. P. C., ch. 62, § 1. 17 Goldsmith v. Joy, 61 Vt. 488, 17 Atl. 1010, 4 L. R. A. 500, 15 Am. St. 923; Willey v. Carpenter, 64 Vt. 212, 23 Atl. 630. 18 People v. Lilley, 43 Mich. 521, 5 N. W. 982. 19 People v. Lilley, 43 Mich. 521, 5 N. W. 982; Moreland v. State, 125 Ark. 24, 188 S. W. 1, L. R. A. 1917A, 140n. 20 People v. Lilley, 43 Mich. 521, 5 N. W. 982; Lane v. State, 85 Ala. 11, 4 So. 730; 1 Russ. on Crimes (7th Eng. ed.) 882. 21 Berkeley V. Commonwealth, 88 Va. 1017, 14 S. E. 916. 22 Fuller v. State, 44 Tex. Cr. 463, 72 S. W. 184, 100 Am. St. 871. See also Flournoy v. State, 25 Tex. App. 244, 7 S. W. 865; Lee v. State, 34 Tex. Cr. 519, 31 S. W. 667. § 234. Mere preparation insufficient.-Mere preparation to commit a battery does not constitute an assault. Thus, picking up a stone twenty yards from the would-be victim, without offering or attempting to throw it, does not constitute an assault.23 Nor does drawing a weapon without presenting it constitute an assault.24 If, however, it be presented an assault will be committed.25 Where several persons, with a gun, pitch-fork and other weapons, follow a person, who is where he has a right to be, and by using threatening and insulting language put him in fear and thereby cause him to go home sooner than he intended to go, and by a different route, they are guilty of assault 28 § 235. Menacing Menacing acts acts accompanied by conditional threats.-To constitute an act an assault it must be accompanied by a reasonably apparent intention to injure. It follows, therefore, that menacing acts accompanied by words manifesting a contrary intent do not constitute an assault. Where a man angrily raises his cane within striking distance of another, shakes it at him and remarks that, "If you were not an old man I would knock you down," he is not guilty of assault.27 And where a man angrily raises his hand within striking distance of another and says, "If it were not for your gray hairs I would tear your heart out," no assault is committed.28 Again, where a man lays his hand on his sword and says to another, "If it were not assize time, I would not take such language from you," he does not commit an assault.29 23 Brown v. State, 95 Ga. 481, 20 S. E. 495. 24 Lawson v. State, 30 Ala. 14. See also People v. McMakin, 8 Cal. 547. 25 State v. Dooley, 121 Mo. 591, 26 S. W. 558; Hairston v. State, 54 Miss. 689, 28 Am. Rep. 392. 26 State v. Rawles, 65 N. Car. 334. 27 State v. Crow, 23 N. Car. 375. 28 Commonwealth V. Eyre, 1 Serg. & R. (Pa.) 347. 3. 29 Tuberville v. Savage, 1 Mod. |