Maule, J., Cresswell, J., and Talfourd, J., concurring.
Rule discharged as to the first count.[[6]]
UNITED STATES v. RICHARDSON
In the United States Circuit Court, District of Columbia, November Term, 1837.
Reported in 5 Cranch, Circuit Court Reports, 348.
Indictment for an assault upon one Susan Shelton.
The evidence was that the defendant came into the house where Mrs. Shelton was sitting at a window. He was armed with a musket and a club; and raising the club over her head, in an attitude for striking, and within striking distance, said to her that if she said a word (or if she opened her mouth) he would strike her; and this without any provocation on her part.
Mr. Bradley and Mr. Hoban, for the defendant, contended that this was not, in law, an assault; that there can be no assault without a present intent to strike; and his saying, “if she opened her mouth,” showed that he had not such a present intent; and they cited the old case, “if it were not the assizes, I would stab you.”
But the Court (Thurston, J., absent) said that he had no right to restrain her from speaking; and his language showed an intent to strike upon her violation of a condition which he had no right to impose. Suppose a stranger comes to my house armed, and raises his club over my head, within striking distance, and threatens to beat me unless I will go out of and abandon my house; surely that would be an assault. So, if a highwayman puts a pistol to my breast, and threatens to shoot me unless I give him my money; this would be evidence of an assault, and would be charged as such in the indictment.
Verdict, guilty; fined ten dollars.[[7]]
OSBORN v. VEITCH
At Nisi Prius, coram Willes, J., Kent Summer Assizes, 1858.
Reported in 1 Foster & Finlason, 317.
Trespass and assault. Pleas: Not guilty, and son assault demesne. Issue.