son at whom it is presented does not know that it is not loaded.92 Whether an apparent intent is sufficient in prosecutions for assault with intent to kill or murder or to do great bodily harm is considered in another section.98

§ 401. Unintentional injury in doing unlawful act. One who, while engaged in the commission of an unlawful act, unintentionally injures another, is guilty of an assault and battery, if such injury is the natural or probable consequence of the act. Under such cir cumstances the necessary criminal intent is presumed from the act.94 Thus, if one strikes or shoots at one person and unintentionally injures another, he is guilty of an assault and battery upon the person injured.95 And the same is true if he assaults a person under the

300, 20 Pac. 625, 11 Am. St. Rep. 830. 92 Alabama. Chapman v. State, 78 Ala. 463, 56 Am. Rep. 42.

Idaho. State v. Yturaspe, 22 Idaho 360, 125 Pac. 802.

Missouri. State v. Sears, 86 Mo.

169.

Nevada. State v. Napper, 6 Nev.

113.

Oregon. State v. Godfrey, 17 Ore. 300, 20 Pac. 625, 11 Am. St. Rep. 830. Some courts hold that there is no assault under such circumstances because there is no present ability to commit a battery. See § 404, infra. 93 See § 423, infra.

94 Alabama. McGee v. State, 4 Ala. App. 54, 58 So. 1008.

Georgia. Beddingfield v. State, 13 Ga. App. 623, 79 S. E. 581.

Minnesota. State v. Lehman, 131 Minn. 427, 155 N. W. 399, Ann. Cas. 1917 D 615.

North Carolina. State v. Hemphill, 162 N. C. 632, 78 S. E. 167, 45 L. R. A. (N. S.) 455.

Tennessee. Cowley v. State, 10 Lea (78 Tenn.) 282.

One who intentionally strikes another a blow which puts out his eye may be convicted under a provision making it assault in the second degree to wilfully and wrongfully wound

or inflict grievous bodily harm upon another, though he did not intend to put out his eye. State v. Damuth, 135 Minn. 76, 160 N. W. 196.

An unlawful intent may be presumed from intentionally pointing a loaded pistol at another. People v. Wells, 145 Cal. 138, 78 Pac. 470.

Where one knowingly fires a revolver at an automobile loaded with people and hits one of the occupants. State v. Cancelmo, 86 Ore. 379, 168 Pac. 721.

See also the cases cited in the following notes, and see generally § 400,

supra.

As to the liability for a homicide committed under such circumstances. See § 623, infra.

95 Delaware. State v. Hill, 2 Boyce (25 Del.) 537, 82 Atl. 221.

Illinois. Vandermark v. People, 47 III. 122.

Kentucky. Caperton v. Com., 189 Ky. 652, 225 S. W. 481.

Maine. State v. Gilman, 69 Me. 163, 31 Am. Rep. 257.

Mississippi. McGehee v. State, 62 Miss. 772, 52 Am. Rep. 209.

Ohio. Callahan v. State, 21 Ohio St. 306.

Tennessee. Cowley v. State, 10 Lea (78 Tenn.) 282.

mistaken belief that he is some one else.96 And a person who shoots through the door of a dwelling house, intending to assault a particular individual as the supposed occupant, commits an assault upon the actual occupant.97 It is not even necessary that there shall be an intent to injure any particular person.98 So if one throws a firecracker,99 or shoots into a crowd and injures one of them, it is an assault and battery. And the same is true where one shoots at an automobile and hits one of the occupants.2

According to some of the courts, the wrongful act must be malum in se, and not merely malum prohibitum and where this rule obtains, one who drives over another unintentionally is not guilty of a criminal assault and battery, apart from any question of negligence, merely because he is driving at a speed prohibited by a city ordinance or a state law, where such violation is not the cause of the injury,

West Virginia. State v. Meadows, 18 W. Va. 658.

And see § 402, infra.

96 Alabama. Carter v. State, 87 Ala. 113, 6 So. 356.

California. People v. Wells, 145 Cal. 138, 78 Pac. 470.

Georgia. Beddingfield v. State, 13 Ga. App. 623, 79 S. E. 581.

Mississippi. McGehee v. State, 62 Miss. 772, 52 Am. Rep. 209.

Ohio. Callahan v. State, 21 Ohio St. 306.

Texas. Olds v. State, 54 Tex. Cr. 411, 113 S. W. 272.

As to whether he may be convicted of an assault with intent to kill or murder the person hit under such circumstances, see § 425, infra.

97 Cowley v. State, 10 Lea (78 Tenn.) 282.

98 State v. Schutte, 87 N. J. L. 15, 93 Atl. 112, aff'd 88 N. J. L. 396, 96 Atl. 659. And the cases cited in the following notes.

99 Scott v. Shepherd, 2 W. Bl. 892, 3 Wils. 403.

1 Illinois. Dunaway v. People, 110 Ill. 333, 51 Am. Rep. 686.

Indian Territory. Jennings V. United States, 2 Ind. Terr. 670, 53 S. W. 456.

Indiana. Walker v. State, 8 Ind.

290.

Maine. State v. Gilman, 69 Me. 163, 31 Am. Rep. 257.

Missouri. State v. Groves, 194 Mo. 452, 92 S. W. 631.

Ohio. Callahan v. State, 21 Ohio St. 306.

Oklahoma. Tyner v. United States, 2 Okla. Cr. 689, 103 Pac. 1057; Phillips v. United States, 2 Okla. Cr. 628, 103 Pac. 861.

As to whether he may be convicted of an assault with intent to kill or murder the person hit under such circumstances, see § 425, infra.

2 State v. Cancelmo, 86 Ore. 379, 168 Pac. 721.

3 People v. Hopper, 69 Colo. 124, 169 Pac. 152; Luther v. State, 177 Ind. 619, 98 N. E. 640; Com. v. Adams, 114 Mass. 323, 19 Am. Rep. 362; Com. v. Gayton, 69 Pa. Super. Ct. 513. And see § 402, infra.

It is not a controlling factor on the question of liability, but is only a circumstance to be considered in deciding whether the defendant was operating the automobile at a rate of speed which, under existing conditions, was obviously dangerous to persons using the highway. State v.

although even under this rule he is responsible if his unlawful act leads directly and naturally to the injury. Other courts refuse to recognize this distinction, however, and hold that it is sufficient if the act is prohibited by statute, regardless of whether it is malum prohibitum or malum in se.5

§ 402. Negligence. A person may be guilty of criminal assault and battery if he intentionally does an act which, by reason of its wanton and grossly negligent character, exposes another to personal injury, and does in fact cause such injury. So throwing a stone in sport and striking another is an assault and battery. And one who shoots another in consequence of handling or discharging a gun or pistol in a grossly negligent or wanton or reckless manner may be convicted of an assault, or even of an assault with a dangerous

Schutte, 88 N. J. L. 396, 96 Atl. 659, aff'g 87 N. J. L. 15, 93 Atl. 112.

4 Bleiweiss v. State, 188 Ind. 184, 119 N. E. 375; Luther v. State, 177 Ind. 619, 98 N. E. 640/

5 See the cases cited in the following notes, and see § 668, infra.

So it has been held that a person may be convicted of assault and battery where he unintentionally runs into and injures another while intentionally driving an automobile at a rate of speed prohibited and made a misdemeanor by statute, Fishwick v. State, 21 Ohio Dec. 127, aff'd 14 Ohio C. C. (N. S.) 368; or where he intentionally discharges a firearm in violation of a statutory prohibition, and a person is struck by the bullet. State v. Lehman, 131 Minn. 427, 155 N. W. 399, Ann. Cas. 1917 D 615. And see Smith v. Com., 100 Pa. 324. 6 Alabama. McGee v. State, 4 Ala. App. 54, 58 So. 1008.

Colorado. People v. Hopper, 69 Colo. 124, 169 Pac. 152.

Delaware. State V. Paxson, 6 Boyce's (29 Del.) 249, 99 Atl. 46.

Indiana. Bleiweiss v. State, 188 Ind. 184, 119 N. E. 375, 122 N. E.

Recklessly shooting at another with intent to frighten him. People v. Lathrop, Cal. App. 192 Pac. 722. Discharging a pistol in a street car. Smith v. Com., 100 Pa. St. 324.

One who recklessly fires a revolver in a public street in which a large number of persons have congregated may be convicted of felonious wounding. State v. Groves, 194 Mo. 452, 92 S. W. 631.

A person who recklessly, wantonly or in gross carelessness shoots a pistol may be convicted of unlawfully wounding a person whom he hits. Balee v. Com., 153 Ky. 558, 156 S. W. 147.

weapon, or of assault with intent to kill,10 although he did not intend to hit him. A person is also guilty of an assault and battery where he strikes another person with an automobile, while operating it with a reckless disregard for the safety of others.11 And it has been held that a person may even be convicted of an assault with intent to murder under such circumstances, 12 and, by express provision of the statute in at least one state, he is guilty of an aggravated assault." But some courts hold that a person who strikes another with an automobile cannot be convicted of an assault with intent to commit a bodily injury, although he is driving recklessly, where there is no evidence of a specific intent on his part to injure the person injured or any other person,14 or where he did not see the person struck before or when he struck him, or know that he struck him.15 And it has also been held that driving at a dangerous rate of speed is a wilful rather than a negligent act, and that one who strikes and injures another while so driving is guilty of assault and battery on the ground that he has done a wilful act under circumstances rendering the infliction of such an injury likely, rather than on the ground

9 Murkison v. State, 11 Ala. App. 105, 65 So. 684; Com. v. Hawkins, 157 Mass. 551, 32 N. E. 862. See also SS 415-418, infra.

10 McGee v. State, 4 Ala. App. 54, 58 So. 1008; Dunaway v. People, 110 Ill. 333, 51 Am. Rep. 686; Tyner v. United States, 2 Okla. Cr. 689, 103 Pac. 1057. And see §§ 408-411, infra.

11 Tift v. State, 17 Ga. App. 663, 88 S. E. 41; Bleiweiss v. State, 188 Ind. 184, 119 N. E. 375, 122 N. E. 577; Luther v. State, 177 Ind. 619, 98 N. E. 640; Com. v. Gayton, 69 Pa. Super. Ct. 513; Com. v. Bergdoll, 55 Pa. Super. Ct. 186. And see §§ 396-398,

supra.

Prior to the taking effect of the statute a driver who injured another by colliding with a vehicle in which he was riding could not be convicted 12 A reckless disregard of human of assault where the collision was life may be the equivalent of aaccidental and unintentional, although specific intent to kill. Dennard v. it was brought about by the defendState, 14 Ga. App. 485, 81 S. E. 378. ant's negligence. Coffey v. State, 82 And see § 621, infra. Tex. Cr. 481, 200 S. W. 384.

18 In Texas, the statute provides that a driver of a motor vehicle who wilfully or with gross negligence collides with or causes injury to any

14 People v. Hopper, 69 Colo. 124, 169 Pac. 152.

15 State v. Richardson, 179 Iowa 770, 162 N. W. 28, L. R. A. 1917 D 944.

that the injury complained of was caused by the driver's act of negligence.18

The fact that the act was done in violation of a city ordinance is proper evidence for the consideration of the jury on the question of negligence.17

§ 403. Conditional offer of violence. An act done towards the infliction of injury is not the less an assault because it is accompanied by a conditional threat. It is an assault to raise a stick within striking distance of another, or point a gun within shooting distance, and threaten to strike or shoot unless the other complies with a certain demand, or forbears to do something which he has a right to do, even though the demand is complied with. 18 Nor will the fact that a threat is accompanied by an unlawful condition or demand, which the accused had no right to make, negative the existence of the necessary specific intent in prosecutions for assault with intent

16 State v. Schutte, 87 N. J. L. 15, 93 Atl. 112, aff'd 88 N. J. L. 396, 96 Atl. 659.

17 Shooting in violation of an ordinance. Com. v. Hawkins, 157 Mass. 551, 32 N. E. 862.

Driving an automobile at a speed in excess of that permitted by ordinance. People v. Hopper, 69 Colo. 124, 169 Pac. 152.

18 United States. United States v. Myers, 1 Cranch C. C. 310, Fed. Cas. No. 15,845.

Illinois. People v. Connors, 253 Ill. 266, 97 N. E. 643, 39 L. R. A. (N. S.) 143, Ann. Cas. 1913 A 196.

Iowa. State v. Lewis, 173 Iowa 643, 154 N. W. 432, Ann. Cas. 1918 A 403.

Mississippi. Hairston v. State, 54
Miss. 689, 28 Am. Rep. 392.
Missouri.
591, 26 S. W. 558.

State v. Dooley, 121 Mo.

North Carolina. State v. Reavis, 113 N. C. 677, 18 S. E. 388; State v. Horne, 92 N. C. 805, 53 Am. Rep. 442; State v. Morgan, 3 Ired. 186, 38 Am. Dec. 714.

"A conditional threat of injury accompanied with an act calculated to

put the person assaulted in fear and with present ability to inflict the threatened injury is sufficient to constitute an assault.'' State V. Mitchell, 139 Iowa 455, 116 N. W. 808. For example, it is an assault to draw a gun and threaten to shoot another if he does not leave, People v. McMakin, 8 Cal. 547; State v. Taylor, 20 Kan. 643; State v. Church, 63 N. C. 15; or if he does not stop. People v. Morehouse, 6 N. Y. Supp. 763.

And indictments for assault were sustained where a man doubled up his fist at another, and said, "If you say so again, I will knock you down;" United States v. Myers, 1 Cranch C. C. 310, Fed. Cas. No. 15,845; where one presented a cocked pistol at another, saying, "If you do not pay me my money I'll have your life,' Keefe v. State, 19 Ark. 190; and where a man who was unlawfully driving away the prosecutor's cow, faced the prosecutor with a cocked gun in his hand, and said that if any one laid his hands on the cow he would blow his brains out. State v. Horne, 92 N. C. 805, 53 Am. Rep. 442.