BATTERY - Harmful or offensive
contact with the preson or another or with something
closely appurtenant thereto, caused by an act intended
to result in such contact or the in the apprehension
thereof directed at the other or at a third person.
It is proposed to consider, 1. What is a battery;
2. When a battery, may be justified.
A battery is the unlawful touching the person of
another by the aggressor himself, or any other substance
put in motion by him. It must be either wilfully committed,
or proceed from want of due care. Hence an injury,
be it never so small, done to the person of another,
in an angry, spiteful, rude or insolent manner, as
by spitting in his face, or any way touching him in
anger, or violently jostling him, are batteries in
the eye of the law. And any thing attached to the
person partakes of its inviolability if, therefore,
A strikes a cane in the hands of B, it is a battery.
A battery may be justified; 1. on the ground of the
parental relation; 2. in the exercise of an office;
3. under process of a court of justice or other legal
tribunal; 4. in aid of an authority in law; and lastly,
as a necessary means of defence.
First, As a salutary mode of correction. For example:
a parent may correct his child, a master his apprentice,
a schoolmaster his scholar, and a superior officer,
one under his command.
As a means to preserve the peace; and therefore if
the plaintiff assaults or is fighting with another,
the defendant may lay hands upon him, and restrain
him until his anger is cooled; but he cannot strike
him in order to protect 'the party assailed, as he
way in self-defence.
Watchmen may arrest, and detain in prison for examination,
persons walking in the streets by might, whom there
is reasonable ground to suspect of felony, although
there is no proof of a felony having been committed.
Any person has a right to arrest another to prevent
a felony.
Any one may arrest another upon suspicion of felony,
provided a felony has actually been committed and
there is reasonable ground for suspecting the person
arrested to be the criminal, and that the party making
the arrest, himself entertained the suspicion.
Any private individual may arrest a felon.
It is lawful for every man to lay hands on another
to preserve public decorum; as to turn him out of
church, and to prevent him from disturbing the congregation
or a funeral ceremony. But a request to desist should
be first made, unless the urgent necessity of the
case dispenses with it.
Secondly, A battery may be justified in the exercise
of an office. 1. A constable may freshly arrest one
who, in, his view, has committed a breach of the peace,
and carry him before a magistrate. But if an offence
has been committed out of the constable's sight, he
cannot arrest, unless it amounts to a felony or a
felony is likely to ensue.
A justice of the peace may generally do all acts
which a constable has authority to perform hence he
may freshly arrest one who, in his view has broken
the peace; or he may order a constable at the moment
to take him up.
Thirdly. A battery may be justified under the process
of a court of justice, or of a magistrate having competent
jurisdiction.
Fourthly, A battery may be justified in aid of an
authority in law. Every person is empowered to restrain
breaches of the peace, by virtue of the authority
vested in him by the law.
Lastly, A battery may be justified as a necessary
means of defence. 1. Against the plaintiffs assaults
in the following instances: In defence of himself,
his wife, his child, and his servant. So, likewise,
the wife may justify a battery in defending her hushand,
the child its parent, and the servant his master.
In these situations, the party need not wait until
a blow has been given, for then he might come too
late, and be disabled from warding off a second stroke,
or from protecting the person assailed. Care, however,
must be taken, that the battery do not exceed the
bounds of necessary defence and protection; for it
is only permitted as a means to avert an impending
evil, which might otherwise overwhelm the party, and
not as a punishment or retaliation for the injurious
attempt. The degree of force necessary to repel an
assault will naturally depend upon, and be proportioned
to, the violence of the assailant; but with this limitation
any degree is justifiable.
A battery may likewise be justified in the necessary
defence of one's property; if the plaintiff is in
the act of entering peaceably upon the defendant's
land, or having entered, is discovered, not committing
violence, a request to depart is necessary in the
first instance, and if the plaintiff refuses, the
defendant may then, and not till then, gently lay
hands upon the plaintiff to remove him from the close
and for this purpose may use, if necessary, any degree
of force short of striking the plaintiff, as by thrusting
him off. If the plaintiff resists, the defendant may
oppose force to force. But if the plaintiff is in
the act of forcibly entering upon the land, or having
entered, is discovered subverting the soil, cutting
down a tree or the like, a previous request is unnecessary,
and the defendant may immediately lay hands upon the
plaintiff. A man may justify a battery in defence
of his personal property, without a previous request,
if another forcibly attempt to take away such property.
