
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1804.
    The State v. Lymburn.
    One who incites others to commit an assault and battery is guilty, and may bo punished, as a principal, if the offence be actually committed, although he did not otherwise participate in it. Whatsoever will make a man an accessary before the fact, in felony, will make him a principal in treason, petit larceny, and misdemeanors.
    Motion for a new trial. This was an indictment for an assault and battery, against the defendant, and two others, tried before Brevard, J. in Charleston. It appeared in evidence, that the defendant was master of a vessel, u hich was lying in the harbour of Charleston, not far from another vessel, on board of which the prosecutor was. That words of provocation and abuse arose between the proseeuior and the defendant, and between the men in the vessel of the defendant and the prosecutor; in consequence of which, some of the defendant’s men boarded the vessel of the prosecutor, in order to chastise him. The prosecutor made resistance, and defended himself; whereupon the defendant, who was on board his own vessel, called out to his men to •' beat the rascal, and throw him overboard.” The assailants did beat the prosecutor very much, and left him, almost dead. The jury found the defendants guilty.
    It was contended at the trial, for this defendant, that he had done no act of violence which could make him liable to punishment on this indictment; and that words alone will not make au assault. The same ground was now taken on this motion lor a new trial ; and it was urged, that the judge who presided at the trial had mis. directed the.jury, in laying down in his charge to them, that “in the highest offence, viz. treason, and in the lowest offences, viz. petit larceny, and misdemeanors, there can be no accessaries, but all are principals ; and therefore, as the defendant cannot be punished as an accessary. for standing near, and commanding, en. couraging, and abetting, the trespass committed on the prosecutor, it must follow, as a necessary conclusion, on principles of law and reason, that he must be punishable as a principal: and although the maxim of law is, that words alone will not constitute a battery, yet it does not follow, that words accompanied with actions which .are induced by such words, or promoted by them, will not.” The defendant’s counsel relied on 1 Hawk. P. C. 133.
    
      The Attorney General cited 6 Bac. Abr. 589, new ed. and argued, that here there was an actual battery, not by words, but by blows, allt* l^lat lhe defendant was aiding and abetting. That although he did not strike himself, he encouraged others who did, and there. fore was a principal wrong doer. That in murder all present aiding and abetting are principals ; the fatal blow given by one be. ing considered in law as the blow of all present aiding and abetting. SeePlowd. 98.
    Cheves, for the defendant,
   By the court.

An assault cannot be committed by words alone. But in this case, an atrocious battery was committed ; and it is not the question, whether an assault was committed, but whether the defendant, as particeps criminis, has been legally convict, éd as a principal: and we think he has. The law was not improperly laid down in the district court, on general principles; and is supported by authorities expressly in point. “ It seems to have been always agreed,” says Hawkins, see P. C. book 2, c. 29, § 2, “that whatsoever will make a man an accessary before in felony, will make him a principal in high treason, and trespass, as battery, (cites Keilw. 55) riot, rout, forcible entry, and even in forgery, and petit larceny. And therefore, wherever a man commands another to commit a trespass, who afterwards commits it. in pursuance of such command, he seems, by necessary consequence, to be as guilty of it, as if he had done it himself.” The act causing the injury to the plaintiff) need not proceed from the immediate assault, to make a party liable : but any wanton act, by which another suffers an assault, or battery, will make a man liable to an action, or indictment. See 1 Esp. Dig. 313. 3 Wils. 403. 2 Bl. R. 892.

Motion overruled.

Present, Watibs, Trezevant, and Brevard, Justices.  