[9]. The argument for the plaintiff is omitted.
[10]. In Chapman v. State, 78 Ala. 463; State v. Yturaspe, 22 Idaho, 360; State v. Sears, 86 Mo. 169; State v. Godfrey, 17 Or. 300; McKay v. State, 44 Tex. 43, it was decided that a defendant who aimed an unloaded pistol at another, although perhaps liable for a civil assault, was not guilty of a criminal assault. See also 2 Green, Cr. Cas. 271 n.; Territory v. Gomez, 14 Ariz. 139; People v. Sylva, 143 Cal. 62. Such conduct was held to be a criminal assault in State v. Shepard, 10 Ia. 126; Commonwealth v. White, 110 Mass. 407; State v. Barry, 45 Mont. 598; Clark v. State, (Okl. Cr.) 106 Pac. 803; State v. Smith, 2 Humph. 457; Richels v. State, 1 Sneed, 606 (semble); Morison’s Case, 1 Brown, Just. R. (Scotch) 394. In Commonwealth v. White, supra, Wells, J., said: “It is not the secret intent of the assaulting party, nor the undisclosed fact of his ability or inability to commit a battery, that is material, but what his conduct and the attending circumstances denote at the time to the party assaulted.” Cf. Howell v. Winters, 58 Wash. 436.
[11]. Only so much of the case is printed as relates to this count.
[12]. State v. Daniel, 136 N. C. 571; Degenhardt v. Heller, 93 Wis. 662 Accord. Wood v. Young, 20 Ky. L. Rep. 1931 Contra. It is not an assault to make the kissing sign to another. Fuller v. State, 44 Tex. Cr. 463.
Mere words, looks, or gestures, however violent or insulting, do not amount to an assault. State v. Borrelli, 24 Del. 349; Reimenschneider v. Neusis, 175 Ill. App. 172; Harvey v. Harvey, 124 La. 595; Bouillon v. La Clede Gas Light Co., 148 Mo. App. 462; State v. Daniel, 136 N. C. 571; Lewis v. Fountain, 168 N. C. 277. A fortiori violent language over the telephone is no assault. Kramer v. Ricksmeier, 159 Ia. 48.
No action lies for the shame and insult to a woman from inviting her to illicit intercourse. Davis v. Richardson, 76 Ark. 348; Reed v. Maley, 115 Ky. 816; State v. White, 52 Mo. App. 285. Aliter where accompanied by acts that put her in fear. Johnson v. Hohn, 168 Ia. 147; Jeppsen v. Jensen, 47 Utah, 536; Newell v. Whitcher, 53 Vt. 589. And a common carrier is liable, as a public service company, for insults to a passenger by its employees. Knoxville Co. v. Lane, 103 Tenn. 376.
“Injury is committed not only when a man is struck with the fist or beaten with a stick or lashed, but also when abusive language is publicly addressed to any one, or when ... some one ... has followed about a married woman or a young boy or girl, or when some person’s modesty may be said to have been assailed.” Institutes of Justinian, iv, 4, 1.
“Likewise it is an injury of this kind when one person, without actually striking another, keeps raising his hand menacingly and creates in the other the fear that he will be struck.... Likewise if he mocks another with indecent or indecorous gestures; or if by means of gesticulations he indicates things of such a kind that if they were expressed in spoken words or in writing they would convey an injury.” Voet, Commentary on the Pandects, xlvii, 10, § 7.
“Ignominious treatment is an injury only when it is an infringement of one of the absolute rights of personality: a right that is recognized by the law of the State as included amongst the natural rights of every freeman. Such an infringement of another’s right may be regarded as offensive to good morals (contra bonos mores); hence the definition of injuria as ‘an insult offered to any person against good morals’ (contumelia contra bonos mores alicui illata).” De Villiers, Roman and Roman-Dutch Law of Injuries, 22.
[13]. Meader v. Stone, 7 Met. (Mass.) 147 Accord.