#### STATE v. FRED HEMPHILL.

(Filed 13 May, 1913.)

1.Assault and Battery — Intent.

To constitute the offense of assault and battery by taking hold of another, there must 'be an intention to hurt or injure, and where the act complained of is done with a kind intent, and • so understood, unaccompanied by any injury, it is not indictable.

2.Sanie — Conflicting Evidence — Instructions

Where it appears from the prisoner s evidence that in order to save the prosecutrix from being led astray by designing men, he took hold of her for the purpose of carrying her to her .relative, she freed herself from- his hold, and he did nothing further except to inform her relative of the circumstances, and there is also evidence tending to establish assault and battery, it is error for the court to charge the jury that upon the defendant’s own evidence he was guilty of the assault.

3.Assault and Battery — Intent Presumed-fQuestions for Jury.

The intent with which the act of laying hold of another is done may be inferred by the jury from the act itself, under the surrounding circumstances, upon a trial for assault and battery; and when the act-itself is unlawful, the intent is immaterial, or will be presumed.

Appeal by defendant from Lyon, J".,jat March Term, 1913, of BuRKE.

The defendant was indicted for an ássault on Oleo Moore.

In view of the judge’s charge to the jury, it is necessary to state only the defendant’s testimony, which was as follows: "At the time of the alleged assault, I sajw the prosecutrix, Oleo Moore, down in the woods near a spring with two white men. I *633took bold of ber to carry ber to ber grandmother. Sbe jerked loose from me, and I went and told ber grandmother where sbe was and what sbe was doing. Her grandmother cried. I never did strike ber with anything. I only took bold of ber to carry ber to ber grandmother, and when sbe broke loose, I did nothing more than to go and tell ber grandmother.”'

The court charged the jury that, if they believed the defendant’s own testimony, they should find the defendant guilty, to which the defendant excepted, and from the judgment, upon the verdict of guilty, be appealed. The sentence was twelve months on the roads.

Attorney-General Bichett and Assistant Attorney-General Calvert for the State.

R. L. Huffman and Avery & Ervin for defendant.

WalKee, J.

It may be that the defendant should have been convicted ripon the testimony of the State, but this was not submitted to the jury. The instruction of the court confined the jury to a consideration of the defendant’s evidence. We do not think that this evidence was susceptible of only one construction or was so conclusively against the defendant as to warrant a direction to return a verdict of guilty, if the jury believed it. The jury might well have found from the circumstances .surrounding the parties at the time, if left untrammeled by this peremptory instruction, that the prosecutrix was about to be led astray, and defendant intervened, at the request of ber grandmother, her natural guardian and protector, for the innocent and laudable purpose of leading ber away from the danger which threatened her, and that he placed his hand upon her, not with .the intent of committing an assault upon her, and not in anger, but in kindness, for the purpose of protecting her. It may be true that every touching of the person of another, however slight or trifling the force may be, if done in an angry, rude, or hostile manner, will constitute an 'iissault and battery; but . not so if there was no intention to hurt or injure, and it was so understood by the other party, and there was in fact no injury. Whether it was done in anger or against the consent *634of the prosecutrix, was a question for the jury. There must be an intent to injure (3 Cyc., 1024; S. v. Reavis, 113 N. C., 679), though this intent may be inferred by the jury from the act, and when the act itself is unlawful^ the intent is immaterial or will be presumed. 1 McLain’s Or. Law, secs. 239 and 240, where the subject is fully discussed. Clark’s Or. Law (2 Ed.), p. 224, secs. 81-83 et seq. and notes. Judge Gaston said in S. v. Davis, 23 N. C., 126, that “an assault is an- intentional attempt, by violence, to do an injury 1o the person of another. It must be intentional, for if it can bo collected, notwithstanding- appearances to the contrary, tha' purpose' to do an injury, there is no there is not a present assault.” And again: “The intention as well as the act mdkes an assault.” If we -are restricted to the defendant’s testimony, it would appear, or at least there is reason for saying, that he did not intend to injure the prosecutrix, or to do any violence to her person, or to restrain her of her liberty against her will. The jury may reasonably conclude that his object was one of- persuasion rather than coercion. He saw lier plight — perhaps had been informed of it by her grandmother — ajnd wished to relieve her of its evil consequences. If so, it fvas an act of kindness and mercy to her, rather than one of hostility. If he laid his hand upon her gently for the purpose 6f inducing her to return to her home and quit the company or; association of designing men, and did not seize her with angér or rudeness, it surely would not be an assault in law. This might have been fairly deduced from his testimony. "When she refused to go with him, he did not persist even in his effort to persuade her, nor did he offer her any violence or utter any threat. He simply desisted, returned to the house, told her grandmother what had occurred, and she cried, presumably because she knew that the safety of her child was imperiled. This made no more than a case for the jury upon the question; whether there had been an assault.

New trial.