Others hold the contrary. The latter hold that the specific intent to commit rape, preparations to carry out this intent and present ability to accomplish it, are sufficient.55 It also has been held that impotency is not a defense to a charge of assault with intent to commit rape.56

§ 245. Transferability of the criminal intent.-It has been held that the specific criminal intent involved in an aggravated assault is not transferable. Thus, it has been held that where one aiming at A misses him and wounds B he can not be convicted of assault with intent to kill B.57 This view, however, is not correct upon principle, nor is it in accord with the weight of authority.58 Where a person deliberately shoots at A, and in the direction of B, and the ball misses A and strikes B, inflicting a wound, these facts will show sufficiently the intention of the person shooting to kill and murder B, although he has no actual malice or ill feeling toward B, and he may be convicted of an assault upon B with intent to murder him.59 And where one, without provocation, discharges a gun directly at a group of persons, it is immaterial what person he intended to kill; or if, under such circumstances, he shoot a person other than the one intended, the act, from its recklessness and want of provocation, will be referred to no other cause than malice. Such recklessness implies malice.60

55 State v. Shroyer, 104 Mo. 441, 16 S. W. 286, 24 Am. St. 344; People v. Carlsen, 160 Mich. 426, 125 N. W. 361, 136 Am. St. 447.

56 Hunt v. State, 114 Ark. 498, 169 S. W. 773, L. R. A. 1915B, 131.

57 Lacefield v. State, 34 Ark. 275, 36 Am. Rep. 8; Rex v. Holt, 7 Car. & P. 518; Reg. v. Stopford, 11 Cox Cr. C. 643; State v. Mulhall, 199 Mo, 202, 97 S. W. 583, 7 L. R. A. (N. S.) 630n, 8 Ann. Cas. 781.

58 State v. Gilman, 69 Maine 163, 31 Am. Rep. 257; Callahan V. State, 21 Ohio St. 306; State v. Jump, 90 Mo. 171, 2 S. W. 279; Walker v. State, 8 Ind. 290.

59 Dunaway v. People, 110 Ill. 333, 51 Am. Rep. 686; Vandermark v. People, 47 Ill. 122; State v. Thomas, 127 La. 576, 53 So. 868, 37 L. R. A. (N. S.) 172n, Ann. Cas. 1912A, 1059n.

60 Dunaway v. People, 110 Ill. 333, 51 Am. Rep. 686.

The same principle is applicable where the offender is mistaken as to the identity of his victim. Thus, where A attacks B, believing him to be C, and tries to kill him, he will be guilty of assault with intent to kill.61

It is to be observed, however, that the courts refuse to recognize a transferability of specific criminal intent from a person to a thing, or vice versa. Thus, where one, who has been fighting, throws a stone at his adversary and it passes over the latter's head and shatters a large plate-glass window, the offender is not guilty of malicious mischief."2 And where one shoots at another on horseback with intent to murder him, and misses the man but kills the horse, he is not guilty of maliciously killing the horse.63

62

It is also to be observed that a specific intent to commit one offense will not take the place of a specific intent to commit a different offense. Thus, where a burglar is convicted of assaulting a watchman with intent to commit murder, maim and disable him, and the proof shows that the burglar's intent was only to disable the watchman temporarily until the former could escape, the conviction will be set aside.64

§ 246. Assault with intent to do grievous bodily harm.— In some states statutes have been passed specifically punishing assault with intent to do grievous bodily harm. To constitute this offense the specific intent to do grievous bodily harm is essential. It has been held, however, that general malice is sufficient, that particular malice against the person wounded is not essential, and also that it is immaterial whether grievous bodily harm is committed or not.65

61 McGehee v. State, 62 Miss. 772, 52 Am. Rep. 209, Knowlton's Cases 50.

62 Reg. v. Pembliton, 12 Cox Cr. C. 607, Beale's Cases 210, L. R. 2 C. C. 119, Rood's Dig. Crim. L. 108:

63 Rex v. Kelly, 1 Craw. & D.

186, Beale's Cases 182, Rood's Dig. Crim. L. 105.

64 Rex v. Boyce, 1 Moody 29, Beale's Cases 182, Rood's Dig. Crim. L. 105.

65 State v. Richardson, 179 Ia. 770, 162 N. W. 28, L. R. A. 1917D, 944; Rex. v. Hunt, 1 Moody ́93.

§ 247. Assault with a deadly weapon.-In most states statutes have been passed creating this class of aggravated assault. The offense is made to depend, in part at least, upon the character of the weapon used. The statutes, however, are not uniform. Some require one specific criminal intent, others require a different one, while still others require none at all. Thus, the New York Penal Code requires that the act be done with a deadly or dangerous weapon, "with an intent to kill a human being, or to commit a felony upon the person or the property of the one assaulted." The California Penal Code requires that it be "likely to produce great bodily injury.' statutes the gist of the offense consists in the specific intent involved as well as in the dangerous nature of the weapon used.67a In Texas, if the assault be made with a deadly weapon it is ipso facto an aggravated assault irrespective of any specific criminal intent, and it is unnecessary to allege or prove the intent with which the assault was made.68

Under these

Upon an indictment for assault with a deadly weapon it has been held that, where it appears that the accused held a pistol in one hand and took hold of the prosecuting witness by the throat with the other hand, but did not present the pistol, or attempt to shoot, or even threaten to do so, the offense committed is false imprisonment but not assault with a deadly weapon.69

From the mere fact of the use of a deadly weapon, irrespective of the circumstances under which it was used, there is no necessary presumption of malicious intent.70

66 New York: Parker's Crim. Code (1910) § 240; Pen. Code, $217.

67 California: Deering Pen. Code (1915), § 245; People v. Magri, 32 Cal. App. 536, 163 Pac. 503; Feople v. Grandi, 33 Cal. App. 637, 165 Pac. 1027.

67a State v. Lichter (Dei.), 102 Atl. 529.

68 Texas: Vernon's Crim. Stat. (1916) arts. 1024a-1024b; Pinson v. State, 23 Tex. 579, Hunt v. State, 6 Tex. App. 663.

69 Tarpley v. People, 42 Ill. 340; People v. Stoyan, 280 Ill. 300, 117 N. E. 464.

70 Friederich v. People, 147 Ill. 310, 35 N. E. 472,

§ 248. What is a deadly weapon?—A deadly weapon is any instrument by which death may be produced, or would be likely to cause death, when used in the manner in which it may appear it was used in the particular case."1 It is to be observed, however, that a weapon is not necessarily a deadly weapon merely because it is capable of causing death.72

In some cases courts take judicial notice that certain instruments are deadly weapons. Thus, courts have held that a loaded gun,78 brass knuckles,74 a hoe,75 a sledge hammer,76 an ax," a club,78 a rolling pin,79 etc., are deadly weap

ons.

On the other hand, when the weapon is one not likely to cause death, either from its inherent nature or from the manner in which it is used, the question whether it is a deadly weapon or not is one for the jury to decide. Thus, where the assault is made with a stick,80 a stone,81 a glass tumbler,82 a chain,83 a horseshoe,84 a pocket-knife85 or a pistol used as a club,86 the question is one of fact for the jury. Pointing an unloaded pistol at another is not an assault with a deadly weapon.8

71 Burgess V. Commonwealth, 176 Ky. 326, 195 S. W. 445; People v. Rodrigo, 69 Cal. 601, 11 Pac. 481. 72 Pittman v. State, 25 Fla. 648, 6 So. 437.

73 Hamilton v. People, 113 Ill. 34, 55 Am. Rep. 396.

74 Wilks v. State, 3 Tex. App. 34. 75 Hamilton v. People, 113 Ill. 34, 55 Am. Rep. 396.

76 Philpot v. Commonwealth, 86 Ky. 595, 6 S. W. 455, 9 Ky. L. 737. 77 State v. Shields, 110 N. Car. 497, 14 S. E. 779.

78 State v. Phillips, 104 N. Car. 786, 10 S. E. 463; Silgar v. People, 107 I11. 563.

§ 249. Assault and battery.-Assault and battery is a separate and distinct offense from assault.88 Every battery, however, includes an assault; and therefore, upon an indictment for assault and battery the accused may be convicted of assault only.89

A battery is any unlawful touching of the person of another, either by the offender himself, or by something put in motion by him. When done in an angry, rude, insolent or revengeful manner, any touching, however slight, will constitute a battery. The law does not discriminate between different degrees of force, and therefore the slightest force is sufficient.90 Thus, spitting on another, in an angry, rude or insolent manner, constitutes an assault and battery. To touch another in anger, though in the slightest degree, or under pretense of passing, is an assault and battery.92 Even to snatch a paper from another is technically an assault and battery.93 Shoving another with one's open hand, upsetting a chair or carriage in which a person is sitting, throwing oil of vitriol on the person of another,96 or placing one's hand on another's head and pushing his hat back for the purpose of seeing his face, in order to identify him, are all batteries.

94

95

97

88 Moore v. People, 26 Ill. App. 137; Hunt v. People, 53 Ill. App. 111.

89 1 Hawk. P. C., ch. 62, Beale's Cases 420.

90 3 Bl. Comm. 120; Hunt v. People, 53 Ill. App. 111; State v. Philley, 67 Ind. 304; Engelhardt v. State, 88 Ala. 100, 7 So. 154; Norton v. State, 14 Tex. 387; Kirland v. State, 43 Ind. 146, 13 Am. Rep. 386.

91 Reg. v. Cotesworth, 6 Mod. 172; Commonwealth V. Malone, 114 Mass. 295. See also State v. Baker, 65 N. Car. 332; Commonwealth v. McKie, 1 Gray (Mass.) 61, 61 Am. Dec. 410.

92 Cole v. Turner, 6 Mod. 149; United States v. Ortega, Fed. Cas. No. 15971, 4 Wash. (C. C.) 531.

93 Dyk v. De Young, 35 Ill. App. 138 (affirmed 133 Ill. 82, 24 N. E. 520).

94 State v. Baker, 65 N. Car. 332. 95 Clark v. Downing, 55 Vt. 259, 45 Am. Rep. 612.

96 People v. Stanton, 106 Cal. 139, 39 Pac. 525; People v. Bracco, 69 Hun (N. Y.) 206, 23 N. Y. S. 505, 10 N. Y. Cr. 438, 53 N. Y. St. 227.

97 Siegel v. Long, 169 Ala. 79, 53 So. 753, 33 L. R. A. (N. S.) 1070.