State v. Malcolm

Wright, O. j.

The case of Stephens v. Myers, 19 Eng. Com. Law, 414, clearly sustains the instructions in this case. Says Tindal, 0. L: “ It is not every threat, when there is *415 no actual violence, that constitutes an assault; in all cases, be the means of carrying the threat into effiü? The question I shall leave to you, will be, whether the defendant was advancing, at the time, in a threatening attitude, to strike, so that his blow would almost immediately have reached the plaintiff, if he had not been stopped ; then, though he was not near enough, at the time, to have struck him, yet, if he was advancing with that intent, I think it amounts to an assault in law. If he was so advancing, that, within a second or two of time, he would have reached the plaintiff, it seems to me it was an assault in law.” To the same effect, are the following authorities : Morton v. Shoppes, 3 C. & P., (14 Eng. C. L., 355), where it is said, by Tenterden, C. J.: “ If the defendant rode after the jflaiutiff, so as to compel him to run into his garden for shelter, to avoid being beaten, that is, in law, an assault.” In State v. Davis, 1 Iredell, 125, it is held, that “ an offer to strike, by one person rushing upon another, will be an assault, although the assailant be not near enough to reach his adver. sary, if the distance be such as to induce a man of ordinary firmness, under the accompanying circumstances, to believe that he will instantly receive a blow, unless he strikes in self-defense. “ Where,” says Gaston, J., in the same case, “an unequivocal purpose of violence is accompanied by an act, which, if not stopped, or diverted, will be followed by personal injury, the execution of the purpose is then begun —the battery is attempted.” And see Eoscoe’s Cr. Ev., 2S7; Wharton’s Or. L., 544-5; 2 Greenl. Ev., secs. S2-3 ; 3 lb., 59.

It is suggested that to constitute an assault, with the felonious intent, as charged in this case, there must be an actual, as contra-distinguished from what counsel call a constructive assault. We understand, however, that tbe intent with which tbe injury is inflicted, or attempted, is what constitutes the offense. This is the gist of the offense, and must be proved. If this is sufficiently showm, that which would be an assault, unaccompanied with the felonious intent,-will be such when thus accompanied.

*416 "We are referred to the case of Bradley v. The State, 10 S. & M., 618 , as being very similar to the one at bar. The only testimony in that case, was, “ that of one witness, which showed that defendant wras seen, with a knife in his hand, in pursuit of the slave alleged to have been assaulted, -when he was stopped by the witness, and that he there made threats against the life of the slave.” It did not appear, however, that there was any ability to do present harm — a question of fact, which, in this case, was left to the jury, and with their finding, in tills respect, we see no good reason for interfering.

Judgment affirmed.