#### STATE vs. ABRAHAM CROW.

It is not sufficient, to constitute an assault, that a man of ordinary firmness should believe he was about to be stricken; but if it can be collected from the circumstances, that, notwithstanding appearances to the contrary, there was not a present purpose to do an injury, there is no assault. Th e jury must judge of these circumstances.

When the defendant, at the time he raised his whip, and shook it at plaintiff, though within striking distance, made use of the words, “ were you not an old man, I would knock you down,” this does not import a present purpose to strike, and does not in law amount to an assault.

The case of the State Davis, I Iredell’s Rep. 127 cited and approved.

The defendant was indicted and tried at the Spring Terxn 1841, of Rutherford Superior Court, before his honor Judge Battle, for an assault on one William Grayson. The case appeared to be this. One witness testified that he heard the *376parties have some words, and he then saw the defendant raise a whip, which he had in his hand, and shake it at Grayson, swearing that he had a great mind to kill him; and that, at the time when the defendant raised his whip, he was within striking distance of Grayson, but did not strike him, although not prevented from doing so by the interference of any other person. One or two other witnesses testified that they did not see the defendant raise the whip, but heard him say to Grayson, “ were you. not an old man I would knock you down.” The defendant’s counsel contended that no assault was proved, because the words which accompanied his acts, qualified them and shewed that he had no intention of striking, and consequently there was no such offer or attempt to as constituted an assault. The Court charged the Jury that, notwithstanding the words used by the defendant when he raised his whip and shook it at Grayson, yet if his conduct was such as wou.ld-ind.ugg_a-marL.pf. oxdih.aryfirmness to supp.os_eJre-.was about to be stricken and to strike bis assailant in self defen.ee, the-laitfitwoulcLbe guilty. Otherwise, there might be a fight and the peace broken, and yet neither party be guilty. And further, that otherwise, one man might follow another all over the Court yard, shaking á stick over his head, and yet not be guilty, provided he took care to declare, while he was doing so, that “ he had a great mind to knock him down.” «

The Jury found the defendant guilty, and a new trial being refused, judgment was pronounced against him, from which judgment he appealed to the Supreme Court.

The Attorney General for the State,

cited Archbold’s Grim. Plead. 347. Hawkins, c. 52, s. 1.

No counsel appeared for the defendant.

Daniel, J.

The Judge charged the Jury “ that if the conduct of the defendant was such as would induce a man of ordinary firmness to suppose he was about to be stricken, and to strike in self defence, the defendant would by such conduct be guilty of an assault.” We admit that such conduct w ould be s'trong evidence to prove, what every person who relies on the plea of son assault demesne must prove to support *377his plea, to-wit, that his adversary first attempted or to strike him ; but it is not conclusive evidence of that fact: for if it can be collected, notwithstanding appearances to the contrary, that there was not a present purpose to do an injury, there is no assault. State v. Davis, 1 Iredell’s Rep. 127.

//The law makes allowance, to some extent, for the angry pas-f [sions and infirmities of man. It seems to us, that the words used by the defendant, cotemporaneously with the act of raising his whip, were to be taken into consideration, as tending to qualify that act, and shew that he had no intention to strike. rjffie defendant did not strike, although he had an opportunity to do so, and was not prevented by any other person. The Judge should, as it seems to us, have told the Jury, that if, at the time he raised his whip and made use of the words, “were you not an old man J would knock you down,” the defendant had not a present purpose to strike, in law it was not an assault. We again repeat what was said in Davis’ case. “It is difficult to dráw the precise line which separates violence menaced from violence begun to be executed, for until the execution of it be begun, there can be no assault.” The evils, which the Judge supposed might follow, if the law was different from what he stated it to be, can always be obviated by the offending party’s being bound to his good behaviour. There must be a new trial.

Prr Curiam, New trial awarded.