What does not amount to an assault-defence of possession.] A man may justify an assault and battery in defence of his lands or goods, or of the goods of another delivered to him to be kept. Hawk. P. C. b. 1, c. 60, s. 23; Alderson v. Waistell, 1 C. & K. 358. In these cases, unless the trespass is accompanied with violence, the owner of the land will not be justified in assaulting the trespasser in the first instance; but should request him to depart or to desist, and if he refuses, should gently lay hands on him for the purpose of removing him, and if he resist with force, then force may be used in return by the owner, sufficient to effect his expulsion. (1) Weaver v. Bush, 8 T. R. 78; 2 Roll. Ab. 548; 1 East, P. C. 406; B. N. P. 19. But it is otherwise, if the trespasser enter the close with violence, in which case the owner may, without a previous request to depart, use violence in return in the first instance. Green v. Goddard, Salk. 641; Tullay v. Reed, 1 C. & P. 6; B. N. P. 19. But by this must be understood a force proportioned to the violence of the trespasser, and only for the purpose of subduing his violence. See 1 Russ. by Grea. 758,(n) “A civil trespass," says Holroyd, J., "will not justify the firing a pistol at the trespasser, in sudden resentment or anger. If a person takes forcible possession of another's close, so as to be guilty of a breach of the peace, it is more than a trespass; so, if a man with force invades and enters into the dwelling of another. But a man is not authorized to fire a pistol on every invasion or intrusion into his house. He ought, if he has a reasonable opportunity, to endeavour to remove the trespasser without having recourse to the last extremity." Meade's case, 1 Lewin, C. C. 185, stated post. It seems that in all cases of resistance to trespassers, the party resisting will be guilty in law of an assault and battery, if he resists with such violence that it would, if death had ensued, have been manslaughter. Vide post, titles, Manslaughter and Murder. What does not amount to an assault-execution of process by officers, &c.] A peace officer, or sheriff's officer may justify laying hands upon a party to arrest him. 2 Roll. Ab. 546. But it is only under particular circumstances that a sheriff's officer, in serving another with process, can lay hands upon him. Harrison v. Hodgson, 10 B. & C. 445. A peace officer, like others, must only use the degree of force necessary for the occasion, and will be answerable for the excess; as where a constable had apprehended a boy fighting, and a by-stander said, "you ought not to handcuff the boy," upon which the constable gave him a blow with a stick, and took him to the watchhouse; in an action by the party struck, against the constable, it appeared that the plaintiff had placed himself [*293] before the defendant for the purpose of preventing him from *taking the boy to the watchhouse. Burrough, J., said, "there can be no doubt that the constables were right in stopping the fight, and would be justified in apprehending any one who aided or abetted those who fought, but it did not appear that the defendant did either. If they thought that as the defendant was apprehending the boy, the plaintiff placed himself before the defendant to hinder him from doing so, that would justify the defendant in detaining the plaintiff at the watch (1) The force used must not exceed the necessity of the case. Baldwin v. Haydon et al, 6 Conn. 453. State v. Lazarus, 1 Rep. Const. Ct. 34. Wartrous v. Steel, 4 Verm. 629. Shain v. Markham, 4 J. J. Marsh. 578. It is a good defence, to an indictment for an assault and battery, that the defendant struck the prosecutor to prevent his taking away the defendant's goods and chattels the prosecutor professing to seize them as a constable, by virtue of an execution, but not having been lawfully appointed a constable. The State v. Briggs, 3 Iredell, 357. house, but not in beating him; but if the plaintiff only said, 'you have no right to handcuff the boy,' the defendant was clearly a wrong-doer as to the whole." Levy v. Edwards, 1 C. & P. 40. So, where one of the marshals of the city of London, whose duty it was on the days of public meeting in the Guildhall, to see that a passage was kept for members of the corporation, directed a person in front of the crowd to stand back, and on being told by him that he could not, for those behind him, struck him immediately on the face, saying, that he would make him, it was ruled that in so doing, he exceeded his authority; that he should have confined himself to the use of pressure, and that he should have waited a short time, to afford an opportunity for removing the party in a more peaceable way. Imason v. Cope, 5 C. & P. 193.* The defendant was indicted for assaulting a policeman in the execution of his duty. It appeared that the policeman having been called into a public-house to put an end to a disturbance which the defendant was making, found him at high words with the landlord. The defendant attempted to go into a room in which a guest was sitting, whereupon the policeman collared him, without being desired to do so, and prevented his going into the room. The defendant then struck the policeman, and several blows passed on both sides. Parke, B., held that if the jury were satisfied that there was no likelihood of the defendant's committing a breach of the peace on the guest in the room, it was no part of the policeman's duty to prevent the defendant from entering it; but assuming that to be so, if the defendant used more violence than was necessary to repel the assault committed on him by the policeman, they ought to find him guilty of a common assault. Mabel's case, 9 C. & P. 474.a A coroner; Garnett v. Ferrand, 6 B. & C. 611; and a magistrate upon a preliminary inquiry; Cox v. Coleridge, 1 B. & C. 16; may justify a forcible exclusion of a party from the room, even although he be the attorney of the person accused. Where, however, the inquiry is of a final and judicial nature, all persons have a right to be present. Daubney v. Cooper, 10 B. & C. 237.a Summary conviction bar to an indictment for an assault.] The 9 Geo. 4, c. 31, 8. 27, enacts, "that where any person shall unlawfully assault or beat any other person, it shall be lawful for two justices of the peace, upon complaint of the party aggrieved, to hear and determine such offence, and the offender, upon conviction thereof before them, shall forfeit and pay such fine as shall appear to them to be meet, not exceeding, together with costs (if ordered) the sum of five pounds, which fine shall be paid to some one of the overseers of the poor, or to some other officer of the parish, township, or place, in which the offence shall have been committed, to be by such overseer or officer paid over to the general *use of the rate [ *294 ] of the county, riding, or division, in which such parish, township, or place shall be situate, whether the same shall or shall not contribute to such general rate; and the evidence of any inhabitant of the county, riding, or division, shall be admitted in proof of the offence, notwithstanding such application of the fine incurred thereby; and if such fine as shall be awarded by the said justices, together with the costs (if ordered) shall not be paid, either immediately after the conviction, or within such period as the said justices shall, at the time of conviction, appoint, it shall be lawful for them to commit the offender to the common gaol or house of correction, there to be imprisoned for any term not exceeding two months, unless such fine and costs be sooner paid; but if the justices, upon the hearing of any such case of assault or battery, shall deem the offence not to be proved, or shall Eng. Com. Law Reps. xi. 306. * Id. xxiv. 274. * Id. xxxviii. 189. d Id. xxi. 64. find the assault or battery to have been justified, or so trifling as not to merit any punishment, and shall accordingly dismiss the complaint, they shall forthwith (on the interpretation of this word see Robinson's case, 10 Law. Jour. M. C. 9,) make out a certificate under their hands, stating the fact of such dismissal, and shall deliver such certificate to the party against whom the complaint was preferred." By s. 28, "if any person against whom any such complaint shall have been preferred for any common assault or battery, shall have obtained such certificate as aforesaid, or having been convicted, shall have paid the whole amount adjudged to be paid, or have suffered the punishment awarded for non-payment; in every such case, he shall be released from all further or other proceedings, civil or criminal for the same cause." By s. 29, it is provided, "that in case the justices shall find the assault or battery complained of to have been accompanied by any attempt to commit felony, or shall be of opinion that the same is from any other circumstance a fit subject for a prosecution by indictment, they shall abstain from any adjudication thereon, and shall deal with the case in all respects in the same manner as they would have done before the passing of the act: provided also, that nothing therein contained shall authorize any justice of the peace to hear and determine any case of assault or battery in which any question shall arise, as to the title to any lands, tenements, or hereditaments, or any interest therein or accruing therefrom, or as to any bankruptcy, insolvency, or any execution, under the process of any court of justice." It seems where the assault is with intent to commit a felony, it is optional with the justices whether they will convict the offender of a common assault, or direct him to be indicted. Where the charge was of such an assault, and the magis trates proceeded to convict, on an application for a certiorari to quash the conviction, Lord Tenterden said that the conviction was for a common assault, and that the act gave the justices a discretionary power to judge whether the charge amounted in substance to more than a common assault. Parke, J., observed, that at all events a certiorari could hardly be granted, for if the magistrates had no jurisdiction, the conviction was a nullity. Virgil's case, 1 Lewin, C. C. 16 (n.) And see Anon. 1 B. & Ad. 382. Conviction of an assault upon an indictment for felony.] By the recent act *295] amending the law relating to offences against the person, *7 Wm. 4, and i Vict. c. 85, s. 11, it is enacted, "that on the trial of any person for any of the offences herein before mentioned, or for any felony whatever, where the crime charged shall include an assault against the person, it shall be lawful for the jury to acquit of the felony, and to find a verdict of guilty of assault against the person indicted, if the evidence shall warrant such finding; and when such verdict shall be found, the court shall have power to imprison the person so found guilty of an assault for any term not exceeding three years." This section appplies to offences committed before it came into operation. Hogan's case, 8 C. &. P. 167. The jury can only convict where the crime charged includes an assault against the person. They cannot therefore convict of an assault upon an indictment for an unnatural crime committed on an animal. Eaton's case, 8 C. & P. 417.8 Where a man, indicted for a rape, had had connexion with a married woman, to which she consented, under the belief that he was her husband; he was acquit ted of the capital offence, and found guilty of an assault under this action. Wil • Eng. Com. Law Reps. xx. 405. Id. xxxiv. 338. * Id. 457. liams's case, 8 C. & P. 286. See also Saunders's case, Ib. 265, and Stanton's case, 1 C. & K. 415.j But the offence of carnally knowing and abusing a female child under ten years of age, is not a felony which includes an assault within the above statute, even although it be stated in the indictment that the prisoner made an assault on the child; and the prisoner must either be found guilty of the whole charge or acquitted. Per Patteson, J., Banks's case, 8 C. & P. 574. So an attempt to commit the misdemeanor of having carnal knowledge of a girl between ten and twelve years of age is not an assault within the act. Meredith's case, Ib. 589.1 See Martin's case, 2 Moo. C. C. 123; 9 C. & P. 213;m 1 Russ. by Grea. 781 (n.) Stevens's case, 1 Cox, C. C. 225; Hughes's case, 1 Cox, C. C. 247, stated post, title, Rape. Where a prisoner was indicted under the 7 Wm. 4 and 1 Vict. c. 85, s. 3, for a highway robbery, accompanied with violence, and the jury returned a verdict finding the prisoner guilty of an assault, but "without any intention to commit any felony;" it was held by Park, J., and Alderson, B., that such special finding did not take the case out of the operation of the 7 Wm. 4 and 1 Vict. c. 85, s. 11. Ellis's case, 8 C. & P. 654." All persons convicted of assaults under the 1 Vict. c. 85, s. 11, upon indictments for felonies, may be sentenced to hard labour under s. 8 of the same statute. On an indictment for a rape in the common form, the prisoner was found guilty of an assault. This being an offence at common law, and not punishable under the 1 Vict. c. 85, Mr. B. Parke and Mr. B. Bolland thought that they had no power to sentence to hard labour, and the sentence was accordingly only to imprisonment for three years; but it appearing that other judges had acted differently, the opinion of the judges was asked on this question, and they were unanimously of opinion that hard labour might be added. Anon. 2 Moo. C. C. 40; 1 Russ. by Grea. 778, (m.); Williams's case, and Ellis's case, supra. On an indictment for felony against husband and wife, both may be convicted of an assault under the 7 Wm. 4 and 1 Vict. c. 85, s. 11. Reg. v. Cruse, et ux. 2 Moo. C. C. 53. It has been held by Gurney, B., that if a prisonor be indicted for a felony which includes an assault, he may be convicted of an assault, *if the indictment [*296 ] contain one good count, although the jury may not find their verdict on that count. Nicholl's case, 9 C. & P. 267. But see Reg. v. Cruse, 8 C. & P. 541, and 1 Russ. by Grea. 780 (z.) On an indictment against several for feloniously cutting, one may be found guilty of an assault only, and others of the felony in the same assault. Reg. v. Archer and others, 2 Moo. C. C. 283. Upon an indictment for felony, the jury cannot convict of an assault, which is a completely separate and distinct assault. Reg. v. Guttridge, 9 C. & P. 471.9 It must be an assault involved in and connected with the felony charged. Reg. v. St. George, 9 C. & P. 483; Reg. v. Crumpton, Carr. & M. 597; Reg. v. Phelps, 2 Moo. C. C. 240; 1 Russ. by Grea. 780. The prisoner was indicted for burglariously breaking and entering the house of J. D., with intent to ravish A. D., and the indictment further charged "that the said P. W., then and there in the said dwelling-house, with force and arms feloniously did wound, beat, and strike the said A. D., then being in the said dwelling-house." On a case reserved, the judges held that the prisoner could not be Eng. Com. Law Reps. 392. i Id. 383. 'Id. 539. Id. xxxviii. 85. j Id. xlvii. 415. n Id. xxxiv. 570. * Id. xxxiv. 531. • Id. xxxviii. 114. Id. xli. 325. convicted of an assault on A. D. under the 1 Vict. c. 85, s. 11, for the assault was not included in the crime charged, of burglary, with intent to commit a rape. The assault of beating and wounding was only additional. Reg. v. Watkins, 2 Moo. C. C. 217; S. C. Carr. & M. 264. On an indictment for feloniously cutting and wounding, with intent to disable and do grievous bodily harm, the felony is not supported by proof that the prosecutor, in the act of warding off a blow, pushed his hand against that of the prisoner, and so received a wound on his finger, the prisoner having cut and slit the smockfrock of the prosecutor in a manner which indicated an intention to injure that garment and not the person of the prosecutor. These facts are, however, sufficient to support a conviction for a common assault. Reg. v. Day, 1 Cox, C. C. 207. Under this head are comprised certain assaults, to which, being of an aggravated character, the legislature has attached additional punishment. Various other enactments of the same nature will be found stated in a subsequent part of this work in connexion with the offence, with intent to commit which, the assault is charged to have been made. In prosecuting for the offence of an aggravated assault, the statute points out the particular evidence necessary to be given in addition to the common proof of assault. Assault with intent to commit felony, &c.] By the 9 Geo. 4, c. 31, (E.), s. 25, it is enacted, "that where any person shall be charged with and convicted of any of the following offences as misdemeanors, that is to say, of any assault with intent to commit felony, of any assault upon any peace officer, or revenue officer, in the due execution of his duty, or upon any person acting in aid of such officer; of any assault upon any person, with intent to resist or prevent the lawful apprehension or detainer of the party so assaulting, or of any other person, for any offence for which he or they may be liable by law to be apprehended or detained; or of any assault committed in pursuance of any conspiracy to raise the rate of wages: in any such case, the court may sentence the offender to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding two years, and may also (if it shall so think fit) fine the offender, and require him to find sureties for keeping the peace." (1) Assaults on officers endeavouring to save shipwrecked property, &c.] By the (1) An assault with intent to kill is no felony at common law, though anciently it was so considered. Commonwealth v. Barlow, 4 Mass. 439. t Eng. Com. Law Reps. 148. |