195. Responsibility of Agent or Servant. It is well settled that, if an agent or servant commits a crime in the course of his employment, he is criminally responsible therefor. The fact that the act was done by authority, direction or command of his principal or master is no defense whatever, for no man can authorize another to do what he cannot lawfully do himself.134 Thus, a person who obtains money or property from another by false pretenses, with intent to defraud, cannot escape responsibility on the ground that he was acting as the mere agent or servant of another.135 same is true where an agent or servant sells intoxicating liquors in violation of law,136 or keeps a bawdy house or gaming house, operates a gaming device, or permits gaming,1 or obstructs a highway.138 The 137 134 Ante, § 83; Com. v. Hadley, 11 Metc. (Mass.) 66, Beale's Cas. 372; Atkins v. State, 95 Tenn. 474; Sanders v. State, 31 Tex. Cr. R. 525; Smith v. District of Columbia, 12 App. D. C. 33; Douglass v. State, 18 Ind. App. 289. 135 State v. Chingren, 105 Iowa, 169. 136 Com. v. Hadley, 11 Metc. (Mass.) 66, Beale's Cas. 372. 137 Stevens v. People, 67 Ill. 587; Atkins v. State, 95 Tenn. 474. 196. Partners. Partners are agents for each other in the conduct of the partnership business, and what has been said, therefore, in the preceding sections, applies where it is sought to hold one partner criminally responsible for the act of his copartner.139 138 Sanders v. State, 31 Tex. Cr. R. 525; Smith v. District of Columbia, 12 App. D. C. 33. 139 See Robinson v. State, 38 Ark. 641; Whitton v. State, 37 Miss. 379. CHAPTER VI. OFFENSES AGAINST THE PERSONS OF INDIVIDUALS. I. ASSAULTS AND ASSAULT AND BATTERY, 197-220. II. MAYHEM. 221-223. III. FALSE IMPRISONMENT, 224-227. IV. KIDNAPPING, 228-229. V. ABDUCTION, 230-232. VI. HOMICIDE, 233-288. A. THE HOMICIDE, 233-238. B. MURDER AT COMMON LAW, ? 239-249. D. STATUTORY DEGREES OF MURDER, ?? F. JUSTIFIABLE AND EXCUSABLE HOMICIDE, ?? 266-288. VII. ABORTION, 289-292. VIII. RAPE, 293-302. 1. ASSAULTS AND ASSAULT AND BATTERY. 197. In General.-All assaults and assault and battery are misdemeanors at common law. In some jurisdictions aggravated assaults are made felonies. 1. An assault is an attempt or offer, with unlawful force or violence, to do a corporal hurt to another. 2. A battery is the actual doing of any unlawful corporal hurt, however slight, to another. 3. Aggravated assaults, as distinguished from common or simple assault, are assaults accompanied by aggravating circumstances, as assaults with intent to kill, to do great bodily harm, to rape, to rob, etc., and assault with a deadly weapon. To constitute an assault there must be an attempt or offer, with force and violence, to inflict unlawful corporal injury. And therefore 1. There must be an act, and not mere menace, which, if not interrupted or diverted, will apparently result in injury. 2. There must be an actual or apparent intention to inflict injury. 3. The intent must be to inflict a corporal in jury. 4. In some jurisdictions there must be a pres ent ability to inflict the injury, while in others an apparent ability is sufficient. 5. Consent of the person against or upon whom the violence is attempted or done is a defense, if the consent is real, and if the injury is one to which he may consent, but not otherwise. 6. The violence or force attempted or done must be unlawful. And therefore it is not an assault nor an assault and battery if the force is justifiable, as where it is applied in pursuance of lawful public or domestic authority, as where an officer makes a lawful arrest or lawfully detains or controls a person in his custody, or a parent or teacher moderately corrects his child or pupil, or where it is applied in 1 necessary and reasonable defense of one's person or property. 198. The Act Constituting an Assault. "An assault," says Hawkins, "is an attempt or offer, with force and violence, to do a corporal hurt to another; as, by striking at him with or without a weapon, or presenting a gun at him at such a distance to which the gun will carry, or pointing a pitchfork at him standing within reach of it, or by holding up one's fist at him, or by any other such-like act done in an angry, threatening manner.' In other words, an assault is an attempt to commit a battery. As we have seen, to constitute an attempt, there must be something more than mere intention or preparation. There must be some overt act done in pursuance of the intent.2 It is well settled, therefore, that no mere threatening or abusive language can of itself amount to an assault. "Notwithstanding many ancient opinions to the contrary, it seems agreed at this day that no words whatsoever can amount to an as 11 Hawk. P. C. c. 15, § 1, Beale's Cas. 420; State v. Davis, 1 Ired. (N. C.) 125, 35 Am. Dec. 735. And see Tarver v. State, 43 Ala. 354; People v. Lilley, 43 Mich. 521; Hays v. People, 1 Hill (N. Y.) 351. 2 Ante, §§ 122, 123. |