Opinion
(June Term, 1841.)
1. It is not sufficient to constitute an assault, that a man of ordinary firmness should believe he was about to be stricken; but if it can be collected from the circumstances that, notwithstanding appearances to the contrary, there was not a present purpose to do an injury, there is no assault. The jury must judge of these circumstances.
2. When the defendant, at the time he raised his whip and shook it at plaintiff, though within striking distance, made use of the words, "Were you not an old man, I would knock you down," this does not import a present purpose to strike, and does not in law amount to an assault.
THE defendant was indicted and tried at Spring Term, 1841, of RUTHERFORD, before Battle, J., for an assault on one William Grayson. The case appeared to be this: One witness testified that he heard the parties have some words, and he then saw the defendant raise a whip, which he had in his hand, and shake it at Grayson, swearing (376) that he had a great mind to kill him; and that at the time when the defendant raised his whip he was within striking distance of Grayson, but did not strike him, although not prevented from doing so by the interference of any other person. One or two other witnesses testified that they did not see the defendant raise the whip, but heard him say to Grayson, "Were you not an old man, I would knock you down." The defendant's counsel contended that no assault was proved, because the words which accompanied his acts qualified them and showed that he had no intention of striking, and consequently there was no such offer or attempt to strike as constituted an assault. The court charged the jury that, notwithstanding the words used by the defendant when he raised his whip and shook it at Grayson, yet if his conduct was such as would induce a man of ordinary firmness to suppose he was about to be stricken, and to strike his assailant in self-defense, the latter would be guilty. Otherwise, there might be a fight and the peace broken, and yet neither party be guilty. And further, that otherwise, one man might follow another all over the courtyard, shaking a stick over his head, and yet not be guilty, provided he took care to declare, while he was doing so, that "he had a great mind to knock him down."
The jury found the defendant guilty, and a new trial being refused, judgment was pronounced against him, from which judgment he appealed to the Supreme Court.
The Attorney-General for the State.
No counsel for defendant.
The judge charged the jury "that if the conduct of the defendant was such as would induce a man of ordinary firmness to suppose he was about to be stricken, and to strike in self-defense, the defendant would by such conduct be guilty of an assault." We admit that such conduct would be strong evidence to prove, what every person who relies on the plea of son assault demesne must prove to support (377) his plea, to wit, that his adversary first attempted or offered to strike him; but it is not conclusive evidence of that fact, for if it can be collected, notwithstanding appearances to the contrary, that there was not a present purpose to do an injury, there is no assault. S. v. Davis, ante, 127. The law makes allowance, to some extent, for the angry passions and infirmities of man. It seems to us that the words used by the defendant contemporaneously with the act of raising his whip were to be taken into consideration as tending to qualify that act, and show that he had no intention to strike. The defendant did not strike, although he had an opportunity to do so, and was not prevented by any other person. The judge should, as it seems to us, have told the jury that if, at the time he raised his whip and made use of the words, "Were you not an old man, I would knock you down," the defendant had not a present purpose to strike, in law it was not an assault. We again repeat what is said in Davis's case: "It is difficult to draw the precise line which separates violence menaced from violence begun to be executed, for until the execution of it be begun there can be no assault." The evils which the judge supposed might follow if the law was different from what he stated it to be can always be obviated by the offending party's being bound to his good behavior. There must be a
PER CURIAM. New trial.
Cited: S. v. Morgan, 25 N.C. 189; S. v. Myerfield, 61 N.C. 109, 110; S. v. Freeman, 127 N.C. 548; S. v. Garland, 138 N.C. 681.
(378)