The plaintiffs were owners of a field in which the defendants were walking with loaded guns at half-cock in their hands. The plaintiffs desired them to withdraw and give their names, and on their refusal advanced towards them, apparently as if to apprehend them. The defendants half raised their guns, which they pointed towards them, and threatened to shoot them. The plaintiffs (one of whom was a constable) then gave them in charge to a policeman for shooting with intent, and he, with their assistance, seized and handcuffed them.
E. James submitted that there was no assault; as the guns were only at half-cock, there was no “present ability” to execute the threat. Read v. Coker.
Sed per Willes, J. Pointing a loaded gun at a person is in law an assault. It is immaterial that it is at half-cock; cocking it is an instantaneous act, and there is a “present ability” of doing the act threatened, for it can be done in an instant.[[8]]
E. James. The assault was in self-defence; the defendants were only trespassers, and there was an attempt to apprehend them, and excess is not even assigned. Broughton v. Jackson, 18 Q. B. 378.
Willes, J. It was not necessary that it should be. To shoot a man is not a lawful way of repelling an assault. No doubt the charge of shooting with intent was idle, and the assault was only a misdemeanor. The handcuffing was utterly unlawful.
Verdict for the plaintiff. Damages, one farthing.
BEACH v. HANCOCK
Superior Court of Judicature, New Hampshire, December Term, 1853.
Reported in 27 New Hampshire Reports, 223.
Trespass, for an assault.
Upon the general issue it appeared that, the plaintiff and defendant being engaged in an angry altercation, the defendant stepped into his office, which was at hand, and brought out a gun, which he aimed at the plaintiff in an excited and threatening manner, the plaintiff being three or four rods distant. The evidence tended to show that the defendant snapped the gun twice at the plaintiff, and that the plaintiff did not know whether the gun was loaded or not, and that, in fact, the gun was not loaded.
The court ruled that the pointing of a gun, in an angry and threatening manner, at a person three or four rods distant, who was ignorant whether the gun was loaded or not, was an assault, though it should appear that the gun was not loaded, and that it made no difference whether the gun was snapped or not.