Beasley now showed cause. The question is, whether the intention of the plaintiff is material to be considered in order to determine whether there was an assault and battery. In Rawlings v. Till, 3 M. & W. 28, Parke, B., referring to Wiffin v. Kincard, 2 B. & P. N. R. 471, where it was held that a touch given by a constable’s staff does not constitute a battery, pointed out, as the ground of that decision, that there the touch was merely to engage the plaintiff’s attention. [Martin, B. Suppose two persons were walking near each other, and one turned round, and in so doing struck the other: surely that would not be a battery. Pollock, C. B. There may be a distinction for civil and criminal purposes. Channell, B. It was necessary to prove an indictable assault and battery in order to sustain the plea.] The maxim, Actus non facit reum nisi mens sit rea applies. He referred also to Pursell v. Horn, 8 A. & E. 602; Archbold’s Criminal Law, p. 524 (12th ed.); Scott v. Shepherd, 2 W. Bl. 892.
Petersdorff, Serjt., and Francis, in support of the rule. The learned judge’s direction was defective in introducing the word “hostile.” In order to constitute an assault, it is enough if the act be done against the will of the party. There are several cases where it has been held that an assault has been committed where there was no intention to do the act complained of in a hostile way, as in the case of a prizefight. Rex v. Perkins, 4 Car. & P. 537. So a surgeon assisting a female patient to remove a portion of her dress. Rex v. Rosinski 1 Moody C. C. 19. Here the plaintiff interfered with the defendant in the execution of his duty. In Hawkins’ Pleas of the Crown, vol. i. p. 263, it is said, “Any injury whatever, be it never so small, being actually done to the person of a man in an angry, or revengeful, or rude, or insolent manner, as by spitting in his face, or any way touching him in anger, or violently jostling him out of the way, are batteries in the eye of the law.” [Bramwell, B. I think that the jostling spoken of must mean a voluntary jostling.]
Pollock, C. B. I am of opinion that the rule must be discharged. The jury found that what the plaintiff did was done with the intent to attract the attention of the defendant, not with violence to justify giving the plaintiff into custody for an assault. The defendant treated it as a criminal act, and gave the plaintiff into custody. We are called on to set aside a verdict for the plaintiff, on the ground that he touched the defendant.[[17]] There is no foundation for the application.
Martin, B. I am of the same opinion. The assault and battery which the defendant was bound to establish means such an assault as would justify the putting in force the criminal law for the purpose of bringing the plaintiff to justice. It is necessary to show some act which justified the interference of the police officer. Touching a person so as merely to call his attention, whether the subject of a civil action or not, is not the ground of criminal proceeding. It is clear that it is no battery within the definition given by Hawkins.
Channell, B. I am of the same opinion. Looking at the plea, it is obvious that it was not proved.
Bramwell, B., concurred.
Rule discharged.
DE MARENTILLE v. OLIVER
Supreme Court, New Jersey, February Term, 1808.
Reported in 1 Pennington, 379.
This was action of trespass, brought by the defendant in this court, against the plaintiff in certiorari. The state of demand charged the defendant below, that he unlawfully, forcibly, and with great violence, with a large stick, struck the horse of the plaintiff, on the public highway, which said horse was then before a carriage, in which the plaintiff was riding, on the said public highway, to the damage of the plaintiff fifty dollars. This cause was tried by a jury, and verdict and judgment for the plaintiff, $15 damages. It was assigned for error that the suit was brought before the justice to recover damages for an assault and battery, when, by law, such an action cannot be supported before a justice of the peace.
Pennington, J.[[18]] To attack and strike with a club, with violence, the horse before a carriage, in which a person is riding, strikes me as an assault on the person;[[19]] and if so, the justice had no jurisdiction of the action.