Battery

Any unlawful beating, or other wrongful physical violence or constraint, inflicted on a huiiiau being without his consent.

2 Bish. Cr. L. § 71; Clark, Cr. L. 199; Long v. Rogers, 17 Ala. 540; Pike v. Hanson.

9 N. II. -JUL • An unlawful touching the person of another by the aggressor himself, or any other substance put in motion by him; Kirland v. State, 43 Ind. 153, 13 Am. Rep. 386. The slightest touching of another in anger is a battery; Goodrum v. State, 60 Ga. 511. It must be either wilfully committed, or proceed from want of due care; Stra. 596; Plowd. 19; Bullock v. Babcock, 3 Wend. (N. Y.) 391.

— Hence an injury, be it ever so small, done to the person of another in an angry, spiteful, rude, or insolent manner; Com. v. Wing, 9 Pick. (Mass.) 1, 19 Am. Dec. 347; as by spitting in his face; 6 Mod. 172;

— or on his body; 1 Swint. 597;

— or any way touching him in anger; 1 Russell, Cr. 751; Johnson v. State, 17 Tex. 515;

— or throwing water on him; 3 N. & P. 564;

— or violently jostling him; see 4 H. & N. 4S1;

— or where one riding a bicycle recklessly runs against a person standing with his back partially towards him, when by the exercise of slight care it could be avoided; Mercer v. Corbin, 117 Ind. 450, 20 N. E. 132, 3 L. R. A. 221, 10 Am. St. Rep. 76; is a battery in the eye of the law; 1 Hawk. PI.

Cr. 263.

And anything attached to the person partakes of its inviolability: if, therefore, A strikes a cane in the hands of B, it is a battery; Respublica v. De Longchamps, 1 Dall. (U. S.) 114, 1 L. Ed. 59; State v. Davis, 1 Hill (S. C.) 46; Rich v. Hogeboom, 4 Denio (N. Y.) 453; United States v. Ortega, 4 Wash. C. C. 534, Fed. Cas. No. 15,971. Whether striking a horse is striking the driver, see Kirland v. State, 43 Ind. 146, 13 Am. Rep. 3S6. A battery may be justified on various accounts. As a salutary mode of correction. A parent may correct his child (though if done to excess, it is battery); Com. v. Coffey, 121 Mass. 66; Neal v. State, 54 Ga. 2S1; Smith v. Slocum, 62 111. 354; a guardian his ward; Stanfield v. State, 43 Tex. 167; a master his apprentice; 24 Edw. IV.; Com. v. Randall, 4 Gray (Mass.) 36; State v. Pendergrass, 19 N. C. 365, 31 Am. Dec. 416; a teacher his N. C. 322: Starr v. Liftchild, 40 Bar'. Y.) 511; Marlsbary v. State, 10 Ind. App. 21, 37 N. E. 558; and a superior officer, one under his command; Keilw. 136; Buller, N. P. 19; Pee, Adm. 161; Flemming v. Ball, 1 Bay (S. C.) 3; Brown v. Howard, 14.1 (N. Y.) ll!); Sampson v. Smith, 15 I 365. And see Cowp. 173; Uanneu v. I 15 Mass. 347; 3 C. & K. 142; but a mi ordinarily, not his servant; Com. v. Baird, 1 Aslnn. (Pa.) 267; Davis v. State. 6 App. 133; and the mate of a it has il right to enforce his order ing one of the crew; The General Rucker,:.

152.

See Assault: Beat; i tion. Doubtless these cases, or some of them, would hardly now be followed. As a incut- of preserving the peace, in the exercise of an oltice, under process of court, and in aid of an authority at law. See Arrest. As a necessary means of defence of the person against the plaintiffs assaults in the following instances: in defence of himself, his wife, 3 Salk. 46, his child, and his servant.

0\v.

1-50 (but see 1 Salk. 407); but he is not justified in using force against a man to prevent his wife leaving him at the persuasion of such other; State v. Weathers, 98 N. C. 6S5, 4 S. E. 512. So, likewise, a p may defend any member of his family against an assault as he could himself, the wife may justify a battery in defending her husband, the child its parent, and the servant his master; 3 Salk. 46; Com. v. Malone, 114 Mass. 295; Smith v. Slocum, 62 111. 354; Patten v. People, IS Mich. 314, 100 Am. Dec. 173; State v. Greer, 22 W. Ya. S00; Staten v. State, 30 Miss. 619; Webb, Poll. Torts. 255. In these situations, the party need not wait until a blow has been given; for then he might come too late, and be disabled from warding off a second stroke or from protecting the person assailed. Care, however, must be taken that the battery do not exceed the bounds of necessary defence and protection; for it is only permitted as a means to avert an impending evil which might otherwise overwhelm the party and not as a punishment or retaliation for the injurious attempt; Stra. 593; 1 Const. S. C. 34; Watrous v. Steel. 4 Yt. 629.

24 Am. Dee. Shain v. Markham. 4 J..7. Marsh. (Ky.) 57S, 20 Am. Dec. 232; Poll. Torts 255.

The degree of force necessary to repel an assault will naturally depend upon, and he proportioned to, the violence of the assailant; hut with this limitation any degree is jus ble; 1 Rd. Raym. 177; Young v. State, 11 Humphr. (Tenn.) 200; Shorter v. People.

2 N. Y. 193, 51 Am. Dec. 286; Stewart v. State, 1 Ohio St. 66; Holmes v. State. 23 Ala. 17; Carroll v. State. 23 Ala. 28, 58 Am. Dec. 2S2; Rapp v. Com..

14 B. Monr. (Ky.) 614; Camp- Evidence justifying an assault and battery is not admissible under a general denial; Hathaway v. Hatcbard, 1G0 Mass. 29G, 35 N. B. 857. A battery may likewise be justified in tbe necessary defence of one's property; State v. Miller, 12 Vt 437; Filkins v. People, G9 N. Y. 101, 25 Am. Rep. 143. If tbe plaintiff is in tbe act of entering peaceably upon tbe defendant's land, or, baving entered, is discovered, not committing violence, a request to depart is necessary in the first instance; 2 Salk. 641; Abt v. Burgbeim, 80 111. 92; see Low v. Elwell, 121 Mass. 309, 23 Am. Rep. 272; Townsend v. Briggs, 99 Cal. 4S1, 34 Pac. 116; and if the plaintiff refuses, the defendant may tbeu, and not till then, gently lay bands upon tbe plaintiff to remove him from the close, and for this purpose may use, if necessary, any degree of force short of striking the plaintiff, as by thrusting him off-; Skinn. 28.

See Everton v. Esgate, 24 Neb. 235, 38 N. W. 794.

If the plaintiff resists, the defendant may oppose force to force; Com. v. Clark, 2 Mete. (Mass.) 23; 1 C. & P. 6. But if the plaintiff is in the act of forcibly entering upon the land, or, having entered, is discovered subverting the soil, cutting down a tree, or the like, 2 Salk. 641, a previous request is unnecessary, and the defendant may immediately lay hands upon the plaintiff; 8 Term 78. A man may justify a battery in defence of his personal property without a previous request, if another forcibly attempt to take away such property; 2 Salk. 641. One from whom property has been wrongfully taken may regain the momentarily interrupted possession by the use of reasonable force, especially after demanding possession; Com. v. Donahue, 148 Mass. 529, 20 N. E. 171, 2 L. R. A. 623, 12 Am. St. Rep. 591.