Action of trespass by Frederick A. Marker, Jr., against Charles Hanratty for assault and battery, alleged to have been perpetrated June 21,1915. Verdict for plaintiff. The plaintiff contended that the defendant did, on June 21, 1915, at Kenton Hundred, strike, beat and bruise him without justification or legal excuse.
¶2[1] An assault is an unlawful attempt to do violence to the person of another, with the means at hand of carrying the attempt into execution, and a battery is the unlawful commission or execution of such violence.
¶3[2, 3] Whenever a person is assaulted by another, he has the right to defend himself, and may use sufficient force to repel the assault in order to protect himself from bodily harm, and when necessary to protect himself from bodily harm at the hands of an assailant, the person assaulted may use necessary force in repelling the assault even before the assailant actually commits a battery upon him. But the resistance must be no more than is necessary to accomplish this. If it be greater than is required for such purpose it becomes in law excessive and without excuse or justification, making the party a wrongdoer from the beginning. Nor can a person when assaulted follow up his assailant and attack him when in the act of retiring or retreating from the scene of the affray; such a course would not be in self-defense or justifiable, on any ground.
