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Assault at Common Law

Published online by Cambridge University Press:  16 January 2009

J. W. Cecil Turner
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Extract

The student who seeks to discover the essential elements of the crime of Assault at Common Law as distinct from Battery does not receive much help from the standard text-books. Most of them in substance follow the description of assault given by Hawkins: ‘An assault is an attempt or offer, with force and violence, to do a corporal hurt to another.’

Type
Research Article
Information
The Cambridge Law Journal , Volume 7 , Issue 1 , March 1939 , pp. 56 - 67
Copyright
Copyright © Cambridge Law Journal and Contributors 1939

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References

1 Hawk. P. C. c. 62.

2 Archbold, Criminal Pleading, Evidence and Practice, 30th ed. p. 945.

3 Russell on Crime, 9th ed. p. 573.

4 7th ed. p. 248.

5 Laws of England, 2nd ed. ix, 470.

6 Outlines of Criminal Law, 15th ed. p. 175.

7 24 & 25 Vict. c. 100, s. 47.

8 Kenny, op. cit. 177.

9 For a fuller exposition of the meaning of the maxim, see C. L. J. 1936, vol. vi, pp. 31 et seq.

10 This reference is incorrect : the case intended on p. 3 of 1 Mod. is number 13, Tuberville v. Savage. The learned editor has given the name of the previous case, number 12.

11 9 C. & P. 483.

12 At p. 490.

13 At p. 491.

14 At p. 493.

15 Repealed by 24 & 25 Vict. c. 95, s. 1.

16 (1851) 15 J. P. 581.

17 In spite of his direction the jury returned a verdict of not guilty; perhaps out of sympathy with what the judge described as ‘this unfortunate case’.

18 This seems to follow from the cases of R. v. Renshaw (1847) 2 Cox 285, and R. v. March (1844) 1 C. & K. 496.

19 R. v. St. George, at p. 490 : ‘Unless it is done secretly’.

20 A person who attempts a thing must necessarily intend to do it; see C. L. J. 1934, vol. v, p. 235.

21 2 Inst. 55; see also Com. Dig. 5th ed. 480.

22 M. Ch. 9 H. 3. 29.

23 Op. cit. p. 590.

24 1 P. C. ch. 60. 7.

25 (1825) Ry. & Mood. 321.

26 The attention of the Court does not seem to have been drawn to the case of Arrowsmith v. he Mesurier (1806) 2 Bos. & Pul. (N. E.) 211.

27 (1905) 69 J. P. 107.

28 (1884) 13 Q. B. D. 225.

28 At p. 108.

30 See American Law Institute's Bestatement, Torts, Sec. 30.

31 See C. L. J. (1933) V, pp. 62–65, and C. L. J. (1936) VI, pp. 38, 39.

32 E.g. in Tubenille v. Savage, 1 Mod. 3, and Williams v. Jones (1736) 2 Stra. 1049; see also Coward v. Baddeley (1859) 28 L. J. Ex. 260.

33 Op. cit. p. 177.

34 (1830) 4 C. & P. 349.

35 Loc. cit.

36 1 C. & K. 530.

37 Op. cit. p. 945.

38 Op. cit. p. 574.

39 (1840) 9 C & P. 626. See note 53 below.

40 Vol. 15, p. 817, Nos. 8919 and 8923.

41 Op. cit. p. 573.

42 C. L. J. (1934) vol. v, 2, pp. 242 et seq.

43 See R. v. Bird (1851), 2 Den. 94, at p. 133, per Martin, B.

44 See R. v. Woodhall (1872) 12 Cox 240, in which it was held that on an indictment for felony under 24 & 25 Vict. c. 96, s. 42, prisoner could not be convicted of common assault.

45 Under s. 8.

46 9 C. & P. 471.

47 At p. 474.

48 At p. 489.

49 At p. 491.

50 (1846) 1 Den. 185.

51 2 C. & K. 194.

52 (1851) 2 Den. 94.

53 Certain other cases, occasionally referred to as contrary to R. v. St. George, all prove to be irrelevant to the present point : e.g. Blake V. Barnard (1840) 9 C. & P. 626, a civil action which turned entirely on a point of pleading. The plaintiff in his declaration had expressly alleged an assault with a loaded pistol and had thus saddled himself with the necessity of proving that the pistol was in fact loaded, which he was unable to do; the cases of R. v. Brown (1883) 10 Q. B. D. 381, R. v. Duckworth [1892] 2 Q. B. 83, and R. v. Linneker [1906] 2 K. B. 99, are all cases concerned not with assault, but with attempt, and the argument turned on the meaning of the words ‘in any other manner’, which occur in the relevant sections of the statutes under consideration.