
    The State vs. R. S. Izard, Stephanus Ford, and Daniel Tucker.
    Assault— Verdict — New Trial.
    
    On indictment for-assault and battery, tlie verdict was, “We find the defendants guilty of an assault but not with the intention of injuring the parties, and not of the battery.” Because there was doubt of what the jury meant, new trial granted.
    BEFORE JOSEPH BLYTH ALLSTON, ESQ., DISTRICT JUDGE, GEORGETOWN, JANUARY TERM, 1867.
    The report of the presiding Judge is as follows:
    " This case was the first on the docket at the Quarterly Sessions of the District Court, and had been ordered docketed as to E. S.Tzard and Stephanus Ford, reliable information having convinced the District Judge that Daniel Tucker was in no way connected with the affair. Counsel for the defence, as amicus curiae, suggested, however, when the case was called, that it might be better, when the facts were not within the personal knowledge of the District Judge, to docket as to all. This appeared to me also the safer rule, and I ordered the' limiting words erased, leaving the indorsement on the indictment simply ' Docket.’
    "Anthony King, the prosecutor, proved that he with two other negro men, Isaac Wineglass and Jack Cain, started from Nightingale Hall plantation for Georgetown, in a paddling-boat, with some rice. That when they came to Mr. Ford’s place they went ashore for Jack Cain to try and get another boat, theirs being rather small. Soon after Mr. Ford and Mr. Izard, whom he recognized in Court, came to the landing and ordered them off. Witness said he was waiting for Jack Cain. Defendants ordered theijj off peremptorily. They obeyed. When about ten yards distant, defendants ordered them back, which they refused to do. Defendants got a rowboat and pursued them. When deponent got near Mrs. Pringle’s, fearing to risk the river to Georgetown, they turned to go back to Nightingale Hall. Defendant Izard ordered them to stop, and on his refusing pointed a pistol at him, saying, 'If you won’t stop, I’ll make you stop.’ Izard did this twice afterwards, witness still refusing to stop, saying he would not stop till he dropped dead in his tracks. About half-way between Mrs. Pringle’s and “Mr. Eord’s, going back home, defendants overtook them and caught their boat. Mr. Izard laid hold of the paddle and took it out of witness’s hand, and struck witness with it. Witness then caught the paddle, and in the tussel their boat filled with water, and they had to get into defendants’ boat to save themselves. Dr. Tucker (recognizing Dr. Joseph E. Tucker as the person who was in the boat, but evidently mistaking him for his brother, Daniel Tucker) called several times on Izard to desist. Thinks if he had not been there, they would have been killed. When Mr. Izard pointed the pistol he was near enough to have killed witness.
    “Isaac Wineglass testified that he was with Anthony King on this occasion, and corroborated his testimony in every material particular. Dr. Joseph E. Tucker, called by the defendants, stated that when he came to the landing the negroes had been already ordered off, and were about ten yards distant. Witness suggested stopping them, and Mr. Eord ordered them back; and the negroes refused to come back. Witness then suggested going after them. Did it for the purpose of saving the men and the rice, the boat being overloaded — more especially the rice: the people could swim. Mr. Izard never got the paddle out of Anthony’s hand in the tussel for it, and did not strike him with it. Mr. Izard had no pistol; no pistol was raised. When the negroes were •brought ashore, they were allowed to empty the water out of the boat, put their rice in it, and go where they pleased.
    “The District Judge, in his charge to the jury, instructed them that they might find either generally guilty or simply of an assault, or generally not guilty, or guilty as to some and not as to others. That one might, without actually injuring another, commit an assault by putting him in fear, as if one rides at another, or drives his boat against another’s. As to question of intention, if one saw another drowning and jumped in the river to save his life, he certainly would not be guilty of assault and battery. The jury might be aided, as to the intention of the parties in this case, by the_ fact that, after bringing the negroes ashore, they started them off again in the same boat, and with rice rendered heavier by having been wet. If defendants -were guilty, their education and social position, far from palliating, would aggravate their offence. The jury returned a verdict in the following words 'We find the defendants guilty of an assault, but not with the intention of injuring the parties, and not of the battery.’
    “ In the course of the day the Clerk informed me that the, jury desired to amend their verdict in regard to Daniel Tucker, whom, by an oversight, they had included in the general verdict. Meanwhile the panel had been changed by the challenge of one of the jurors. Accordingly the next morning, replacing the challenged juror, constituting the same panel which had tried the cause, I gave them permission to amend their verdict so far as it related to Daniel Tucker, which they did by adding the words, 'with the exception of Daniel Tucker, • not guilty.’ On Saturday, defendants, being called to receive sentence, a motion was made in arrest of judgment, on the grounds: 1st. That the verdict of the jury was not in response to the issue presented in the indictment. 2d. That the finding of the jury, if it means any thing, is a verdict of not guilty.
    
      “ It appeared to me that the finding of the jury, ‘ guilty of an assault,’ was sufficiently clear to allow of judgment, and thatthe succeeding words should, by the obvious construction of the English language, be referred to the intent to commit a battery, and the actual commission thereof. Accordingly, the motion was refused.”
    The defendants appealed, and now moved this Court in arrest of judgment, on the grounds:
    1. Because the verdict of the jury — "We find the defendants guilty of an assault, but not with the intention of injuring the parties, and not of the battery ” — is not in response to the issue presented in the indictment.
    2. Because the finding of the jury, if it means any thing, is a verdict of not guilty.
    And failing in that, then for a new trial, on the grounds:
    1. Because the presiding Judge charged the jury that "an assault consists in putting another in fear” — “ if ,<one boat drives against another boat, it is an assault.”
    2. Because the action of the defendants was moved by feelings of humanity; and the presiding Judge failed to explain to the jury that the intent with which an act is done is of the essence of the offence charged.
    
      Wilson and Dozier, for appellants.
   The opinion of the Court was delivered by

Wardlaw, J.

The commonly-received definition of an assault is “ an attempt or offer, with force and violence, to do a corporal hurt to another,” when there was ability to complete the attempt or. offer by a battery. The force and violence is but a translation of vi et armis, meaning some direct and immediate action distinguished from that which is indirect or remote; and the corporal hurt may be of the slightest kind, even such as would harm the outward body only through the inner feelings. The intent is of the essence of an assault as of other crimes, but where the act is such as to excite in the mind of the person assailed a just apprehension that a battery is intended, the defendant charged with an assault must show that his intent was not such as his act seemed to indicate. Whether, in a case where there could have been no intent to commit a battery, as where there was the presentation of a pistol unloaded, and known to the defendant, but not to the prosecutor, to be so, the proof of the harmlessness of the weapon should shield, from a charge of assault, one who had, by a demonstration which he knew would excite just apprehension, compelled submission to his will or sported with the feelings of a victim, we are not now called on to decide.

Here the jury have found the defendants “ guilty of an assault, but not with the intention of injuring the parties, and not of the battery.” What the jury meant by “injuring the parties ” may well be doubted. They say there was no battery; and overpowering in a scuffle, had for good purpose, they may have supposed would have been no injury — that is, no damage, if we regard the technical distinction between injury and damage.

The law was no doubt well expounded by the District Judge, for from his report it is manifest that he had in his mind the case of The State vs. Sims, (3 Strobhart, 137,) where the Judge on circuit said to the jury, “that if the defendant rode his horse so near to the prosecutor as to endanger his person, and create a belief in his mind that it was his intention to strike, and within striking distance, it would be an assault ;” — “that if his action and conduct were such as to create the belief in the mind of the prosecutor that he intended to ride upon or to strike him, he would be guilty of an assault.” The jury likening a boat to a horse, as the Judge had done, found the defendant guilty of an assault. If they understood the law, they need not have added any thing to a verdict so finding: if they did not understand, they should have asked further instructions. Such a verdict as they rendered is not to be encouraged, and the Judge should'have regarded the offer of such a one as an application for further instructions, and should have given such instructions that there would have been no doubt of the law, or of the meaning of the jury.

The counsel for the defendants insists that the verdict is equivalent to a verdict of not -guilty. The Court does not so perceive it; but there is doubt of what the jury meant, and therefore a new trial is ordered.

Dunkin, C. J., and Inglis, A. J., concurred.

Motion for new trial granted.  