
    Francis M. Smith v. The State.
    1. Assault : devoted. — An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness. See Roscoe’s Grim. Ev. 257.
    2. Same ; case in judgment. — Threatening words and violent and menacing gestures, if unaccompanied by a present intention to do á corporal injury, do not amount to an assault. Handt, J., dissented.
    3. Same. — If a party make an advance upon another, armed with a dangerous weapon, likely to produce great bodily injury, and in a hostile attitude, to all appearances indicating an intention to do the other party great bodily harm, it is an assault, though the party making these demonstrations did not intend to do the other any bodily injury. Per Handy, J., dissenting;
    Error to the Circuit Court of Yalobusha county. Hon. William Cothran, judge.
    
      
      F. M. Aldridge, for plaintiff in error.
    The instructions refused for the defendant are based upon the idea that there must have been an intent to commit a battery. The point upon which the question hinges is intent or purpose of the party charged with the assault. The court below entertained a different view of the case, and refused to give the third instruction, asked for the defendant, " That no threat of words or act can constitute an assault, if the jury believe there was no intention to strike.”
    The law sustains every instruction asked by the defendant, and is directly opposed to those asked and given for the State. It is conceded the law, as compiled by Wharton in his American Criminal Law, is as strongly stated for the State as can be done. But no authority is cited by him in conflict with the instructions asked for the defendant, and none sustaining the instructions given for the State. Judge Gaston says: “ It must amount to an attempt; for a purpose to commit violence, however fully indicated, if not accompanied by an effort to carry it into immediate execution, falls short of an actual assault.” State v. Davis, 1 Iredell, 128 ; Am. Crim. Law, (Wharton,) 461. This language is correct, and stronger than the instructions asked by the defendant. See the authorities collected by Wharton, Am. Crim. Law, 461.
    No authority different from these can be found, except it is in Bishop’s abstract speculations.
    This question, independent of correct legal principles, involves a question of importance in many offences of a higher grade. An assault justifies a battery, and questions of this character often arise in cases of homicide.
    The defendant only gave vent to a temporary excitement, such as an ignorant, spirited man would be likely to do, but, upon being counselled, yielded to every legal demand. For the time, until warned, he resisted in threats the levy, and then yielded. Can the temporary ebullition of passion by an ignorant, spirited man, accompanied with words, without the intent to strike, constitute an assault ?
    
      
      T. J. Wharton, attorney-general, for the State.
    In support of the action of the court I cite Whart. Crim. Law, (1st. ed.,) 311-313 ; State v.. Morgan, 3 Iredell, 188, 189. In this last case Judge Gaston said: “ The inquiry was, whether there was a present purpose of doing harm; if not, the acts did not amount to an assault.” Again,-noticing cases cited by counsel, he said: "but these, and all the cases in our recollection where the doctrine has been held, were cases in which there was a declared intention not to do harm at the time. The present case is one of very different character. The act was not only apparently a most dangerous assault, but accompanied with a present purpose to do great bodily harm; and the only declaration by which its character is attempted to be changed is, that the assailant was not determined to execute his savage purpose unconditionally, and without a moment’s delay. He had commenced the attack, and raised the deadly weapon, and was in the attitude to strike, but suspended the blow to afford the object of his vengeance an opportunity to buy his safety by compliance with the defendant’s terms.” " To every purpose, both in law and in fact, the attack was begun, and in the pause before its consummation an arrangement was made which prevented a probably fatal result.” He concludes the examination by saying: “ Wherever the act is done in part execution of a purpose of violence, whether absolute or provisional, makes no difference as respects the question, whether the act be an assault. In both he equally violates the public peace.”
    Bishop says: “An assault is committed whenever a well-founded apprehension of immediate peril from a force already or fully put in motion is created.” 1 Bishop Grim. Law, sec. 409 ; see also 1 Iredell, 125, 375 ; 11 Id. 475; 9 Ala. E. 79.
    It is apparent that nothing but the coolness of the witness prevented the assault. His threats were not that he would, at a' future time, do witness some harm. They were positive, and were to be executed, even to the cutting of witness’s throat, if he did what it was his duty as an officer to do — execute legal process. The threats had the effect, for a time, to make the officer desist from his duty. The offence was then completed; that accused afterwards relented did not atone to the law for the violence threatened, and that to an officer innocently discharging his duty.
   Smith, C. J.,

delivered the opinion of the court:

This was a conviction for an assault, in the Circuit Court, Yalobusha county.

The defendant pleaded not guilty; and, on the trial, it was proved by the only witness examined in the cause that he went to defendant’s house to levy an execution, and when he arrived there that he found defendant at the grindstone grinding his knife. When the witness made known the purpose of his visit, the defendant swore he should not levy the execution, and threatened, if he did, to cut his throat. Witness leaned up against the fence in a careless manner, and defendant walked up to witness in an angry manner. In talking to witness defendant kept his knife open, speaking in an angry and excited manner, and flourishing his knife, which sometimes passed within six inches of witness’s throat. Witness stood motionless, and shamed defendant and told him that he was a better man than witness, and that defendant put up his knife, but soon took it out again. Witness for the time was prevented from making the levy; but defendant’s anger subsided after a while, and he made the levy, and defendant rode off with him to a neighbor’s house. Witness did nothing to prevent defendant from striking him if he desired to do so. Witness did nothing but talk to defendant. Defendant and witness were the only persons present. Defendant did not touch witness, who did not retreat, but stood still.

The errors assigned arise upon the instructions granted, with reference to the foregoing evidence, in behalf of the prosecution, and upon those which were requested by the defendant and refused .by the court.

For the prosecution, the court charged, first, that “If the jury believe from the evidence that the defendant, in an angry manner, dijew a deadly weapon and approached Wilson, and, while in reach of him, threatened to do him damage if he did not desist from doing a lawful act, and that Wilson did desist, for the time, in consequence of such threat, the defendant being armed with and exhibiting such weapon, then the defendant is guilty of an assault;”- and, second, “That to constitute an assault it is not necessary that any damage be done, or that any blow be struck.”

And refused in behalf of the defendant to instruct the jury, first, that “ If it was not the intention of the defendant to strike, then no assault was committed;” second, “ If it was in the power of the defendant to strike, and he did not strike, nor make any attempt to strike, these are circumstances to be considered by the jury to determine whether there was any intention to strike;” and, third, “No threat of words or act can constitute an assault, if the jury believe there was no intention to strike.”

These latter instructions are the converse of those given at the instance of the prosecuting attorney; and, in effect, present the question whether a present purpose or intention to do harm to another is necessary to the constitution of an assault.

An assault is said to be “ any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness.” Roscoe Ev. 257. The offer or attempt must be intentional; for if, notwithstanding appearances to the contrary, it can be collected that there is not a present purpose to do an injury, it is not an assault. Wharton Am. Crim. Law, 1244, 4th ed. And it is said that a mere purpose to commit violence, however plainly declared, if not accompanied by an effort to carry it into immediate execution, falls short of an actual assault. Hence no words, of themselves, can amount to an assault. Davis v. The State, 1 Wendell, 125; Wharton Am. Crim. Law, 1244. As no words of themselves, or a declared purpose to do an injury to the person of another, unaccompanied with an effort to carry such purpose into immediate effect, amounts to an actual assault, it is not always easy, in practice,, to draw a dividing line between violence threatened and violence begun to be executed. But we think it may safely be laid down “ that when an unequivocal purpose of violence is accompanied by any act, which, if not stopped or diverted, will be followed by personal injury, the execution of the purpose is then begun — the battery is attempted.”

Tested by. these rules it seems very clear that the rulings of the court were erroneous. The acts or gestures of the defendant were not an evident attempt to commit violence upon the person of Wilson. It appears certain that he did not so regard them, as he leaned carelessly against the fence, offered no resistance and did not retreat, when it was completely in the power of the defendant to have executed his purpose if he intended-to assail him. Under the circumstances in proof before the j ury, it was indispensable that they should ascertain what was the intention of the accused. If the proof was clear, or the jury had been satisfied, that the accused, at the time, meditated violence upon the person of Wilson, they would have been justified in finding that his acts amounted to an assault. But the instructions excluded from their consideration all of the facts and circumstances, in proof before them, and which were relied upon to show that the accused did not intend to commit an injury upon the person of Wilson; and hence that he was not guilty as charged.

Judgment reversed, and cause remanded for a new trial.

Handy, J.,

dissented, as follows:

I do not concur in the doctrine stated in the opinion of the court.

I am of opinion that if a party make an advance upon another. armed with a dangerous weapon likely to produce great bodily injury, and in a hostile attitude, to all appearance indicating an intention to do the other party great bodily barm, that it is in law an assault, though- the party did not intend to do the party any bodily injury.  