¶1Reheard, Wytheville, June 14, 1923.
¶2delivered the opinion of the coxxrt.
¶31. Upon inspection of the original record, brought before us on the rehearing, the “muddle on the subject of instructions,” referred to in the original opinion, has been entirely cleared up. The instruction contained in certificate No. 2 of the printed record, which was all that was before us on the subject on the original hearing, was in fact the same instruction as instruction No. 1, contained in certificate No. 3, referred to in the original opinion. That it did not so appear in the printed record was due to an error of the clerk in copying the record which accompanied the petition of the *704accused for the writ of error, which copy was printed, making the printed record. Hence, it now appears that the ground on which the case was reversed upon the original hearing on the appeal does not exist, and, as the matter is still in the breast of the court, the court is forced to reach a different conclusion upon this point.
¶42. It is objected on behalf of the accused that this court is without jurisdiction to rehear a criminal ■case on petition of the Commonwealth, upon any ground whatsoever; and the position is taken that for this court to rehear the ease on motion of the Commonwealth is in effect to grant a writ of error or appeal to the Commonwealth in a ease, not a revenue case, but one involving the liberty of a person, which would be in violation of the provisions of section 88 of the State Constitution on the subject. We think that there is no merit in the objection or position taken in support of it. The writ of error was awarded upon the petition' of the accused, and the appeal was prosecuted by him. All that the petition of the Commonwealth for a rehearing asks is that the original record be brought before the appellate court in order that the error of the clerk in copying it might be made to appear, so as to enable this court to hear and determine the case upon the true record. This constituted nothing more than a suggestion to the court that the aforesaid error existed in the record before it; and the suggestion having been made before the original order of this court became final, the court had jurisdiction, upon such suggestion, to grant the rehearing for the purpose aforesaid. All courts, whether nisi prius or appellate, having properly obtained jurisdiction of any case, criminal as well as civil, have unquestionable jurisdiction so long as its orders or decrees on any subject have not become final, to rehear the case for any' proper purpose—and *705certainly to correct a manifest clerical error is a proper purpose to induce the court to exercise such jurisdiction.
¶53. The ease, therefore, is before us on rehearing upon the true record (the printed record being corrected in the particular aforesaid touching the instructions), and upon the three assignments of error contained in the petition of the accused for the writ of error.
¶64. The questions raised by the third assignment of error concern certain questions asked and answered over the objection of the accused. These questions are dealt with in the original opinion, and for the reasons stated in the original opinion we adhere to the holding therein, that the exceptions to the rulings of the trial court on the admissibility of such testimony were not so saved and presented in the record before us as to enable us to consider the third assignment of error.
¶75. The first and second assignments of error were not passed on upon the original hearing. There is but a single question raised thereby and that is this:
¶86. Was instruction No. 1 erroneous, in that it told the jury, in substance, that if they believed from the evidence that the accused, “before the officer was out of shooting distance,” shot “in such manner and under such circumstances as would naturally lead the officer to believe that the pistol was being shot at him and with intent to terrify the officer, they should find him guilty of simple assault, notwithstanding the accused had no intention to strike him.”
¶9The question must be answered in the negative.
¶10That the officer was in fact put in fear or apprehension that he would be struck by the shots appears from his positive testimony to that effect. There is no conflict in the evidence as to this personal sensation on the part of the officer having been that of such fear or appre*706hension, or as to the circumstances plainly showing that the shooting by the accused was done with the intent to create such fear or apprehension, if not with the actual intent to strike the officer. The accused did not testify in the case, and there was no evidence controverting such plain showing of intent to frighten by the eireumstances in evidence.
¶11Whether the fear or apprehension of the officer was well founded or not is the subject of some conflict in the evidence, but that question was properly submitted to the jury, and there was ample evidence to sustain the finding that it was well founded.
¶12The instruction under consideration, therefore, presents the question on which there is a sharp and irreconcilable conflict in the authorities on the subject; diametrically opposed positions being taken by the authorities, namely: (a) That it is sufficient to constitute an assault that the party assailed is put in well founded fear or apprehension of bodily harm, although. the assailant has in fact no intention to strike the party assailed and the latter is not in fact put in actual peril; and (b), that (where there is no battery) the putting of the party assailed in actual peril is essential to constitute an assault upon him. And since in a criminal prosecution for assault the existence of a criminal intent on the part of the accused is essential to his guilt, as corollary to the opposing views of such respective lines of decision, such lines of decision respectively hold: (c) That to render one guilty of the offense of an assault, it is sufficient that the act done is with the intent to put the party assailed in fear or apprehension' of bodily harm, and that by the act he is in fact put in well founded fear or apprehension of such harm; and, (d) that to render one thus guilty, it is essential that the act done must be with the intent to do bodily harm to *707the party assailed, and the latter (where there is no battery) must be put in actual peril of bodily harm.
¶13In the brief for the accused the authorities containing the aforesaid holdings (b) and (d) are relied on, and of such authorities the following are cited in such brief, namely: Chapman v. State, 78 Ala. 463, 56 Am. Rep. 42; Wharton’s Cr. Law, sec. 797; Degenhardt v. Heller, 93 Wis. 662, 68 N. W. 411, 57 Am. St. Rep. 945; Edwards v. State, 4 Ga. App. 167, 60 S. E. 1033, under a statute; People v. McMakin, 8 Cal. 547; and State v. Godfrey, 17 Or. 300, 20 Pac. 625, 11 Am. St. Rep. 830. The other decisions cited in such brief, including Lynch’s Case, 131 Va. 762, 109 S. E. 427, are not in point; except that State v. Davis, 23 N. C. 125, 35 Am. Dec. 735, cited for the accused, is contrary in its holding to the positions urged in behalf of the accused. Lynch’s Casedid not involve the subject under consideration, there being in that case an actual corporeal touching of the party assailed.
¶14We cannot, however, give our adherence to the view of the law taken by the authorities just mentioned. We think that, both in reason and in accordance with the great weight of modern authority, the positions (a) and (e), aforesaid, embody the correct doctrine on the subject.
¶15In 5 C. J. (5), 3, p. 618, this is said: “Whether there must exist an intention on the defendant’s part to do bodily harm to the plaintiff is left in much doubt by the conflicting opinions of judges and text-writers. The better rule is that th¿ defendant’s intention” (to do actual, bodily harm) “does not enter into the case, for if reasonable fear of bodily harm has been caused by the conduct of" the defendant, this is an assault, even though he disclaims any intention to do wrong. ’ ’ Citing a number of authorities. (Italics supplied.)
¶16*708Of the positions urged in behalf of the accused, which it disapproves, this authority, in the same paragraph, says this: “On the other hand it is laid down broadly in many cases, principally on the authority of a statement in Greenleaf on Evidence, that an intention to do harm is the essence of an assault, and. that where, from the language, acts, or conduct of the alleged, assailant, it is evident that there is no intention to do harm, there is no assault.”
¶17This authority thereupon adds the following: “But even granting the necessity of some intent to injure, it has been held that the intended injury may be to the mind and feelings as well as to the body.” Citing a number of decisions. And further adds: “Apparent present ability” (to do physical violence) “ … has been held to be sufficient; defendant need not be in striking distance or within arm’s reach” of the party assailed. Citing a number of eases.
¶18Mr. Bishop, however, as we think, best expresses the correct doctrine as to what constitutes an assault, where there is no battery, but the overt act done puts the party assailed in well founded fear of bodily harm, in 2 Bish. New Cr. Law (8th ed.), sec. 32, where this is said:
“Actual peril—Apprehended.—There is no need for the assailed party to be put in actual peril, if only a well founded apprehension is created. For this suffering is the same in the one case as in the other., and the breach of the public peace is the same.” Citing, a number of cases. (Italics supplied.)
¶19The ease will therefore be affirmed.
¶20Affirmed.