#### THE STATE vs. JOHN DAVIS.

An offer to strike by one person rushing upon another will be an assault, although the assailant be not near enough to reach his adversary, if the distance be such as to induce a man of ordinary firmness, under the accompanying circumstances, to believe that he will instantly receive a blow, unless he strikes in self-defence.

The acts and circumstances necessary to constitute an assault .inlaw discussed and stated by his Honor Judge Gaston. Jj?j

The defendant was indicted at Yancy, on the last Fall Circuit, before his Honor Judge Pearson, for an assault and battery upon one William Roberts.

In support of the prosecution, a witness was called, who testified that he, Roberts.and the defendant were crossing Coney mountain, on their return from a muster; that witness and the defendant were walking together, leading their horses down the mountain, and that Roberts was ten or fifteen steps ahead, on foot, with a rifle in his hand; that a quarrel commenced between the defendant and Roberts, when, upon Roberts using some insulting language to him, *126the defendant said to witness “ hold my horse — I’ll whip the rascaV’ and instantly dropped his bridle, and advanced towards Roberts, with his hands extended, as if to catch hold o£ but before he did so Roberts stepped on one side, struck him with his rifle, and knocked him down. The witness stated further, that the words “I’ll whip the rascal,” were spoken loud enough for Roberts to hear them; but he was unable to state how near the defendant was to Roberts when the latter struck him — he thought defendant was in about four feet; but would not say he was in striking distance of Roberts, or could have reached him with his arm. The defendant’s counsel insisted, and moved the Court so to charge the jury, that “if defendant was not in striking di tance, when he made the blow, he was not guilty of an ¡¿ault.” His Honor instructed the jury that an “assault (was an offer or attempt to strike, under such circumstances as would induce a man of ordinary firmness to believe that [he was instantly to receive a blow, and would justify his striking to prevent it. That if this were not so, the peace might be broken, and neither party be guilty — the one, because he struck in self defence; and the other, because his act did not amount to an assault. That, being in striking distance was a good general rule, but did not include all cases of assaults; that an offer to strike, at such a distance that any body could see the blow would not take effect, was not an assault; but if the distance were such as would induce a man of ordinary firmness, connecting it with the other circumstances, to believe that he would instantly receive a blow, unless he struck in. self/teflnce, the offer to strike would amount to an assault;'although it should be proved that the assailant was not near enough to reach. That in this case, if the jury believed the witness, and were satisfied that the defendant had rushed upon Roberts and got so near that, under the circumstances, a man of ordinary firmness, would have believed that he was instantly to receive a blow, they would find the defendant guilty of the assault, although they were not satisfied that he had got quite near enough to reach him.” The defendant was found guilty and appealed.

Attorney General for the State.

*127Gaston, Judge.

Upon the whole, we are of opinion, that there is no error in the Judge’s charge.

An Assault is an intentional attempt,, by violence, to do an injury to the person of another. It must be intentional — ■ for, if it can be collected, notwithstanding appearances to the contrary, that there is not a present purpose to do an injury, there is no assault. Thus, where-a man laid his hand on his sword and said “if it were not assize time, I would not take such language from you,” the Court agreed that it was not an assault; for the declaration was that he would not assault him, the Judges being in town, and the intention as well as the act makes an assault. Tuberville vs. Savage,

1 Mod. Rep. 3. And it must also amount to an attempt— i for a purpose to commit violence, however fully indicated, if not acompanied by an effort to carry it into immediate execution, falls short of an actual assault. Therefore it is, that notwithstanding many ancienfopinions to the contrary, it is now settled, that no words can, of themselves, amount to an assault. 1 Hawk. C. 62 S. 1. page 110. And therefore, also it is said not to be an assault, if a man strike at another at such a distance that he cannot reach him, or put him in fear. 2 Comyn’s Bat. C. The distance is here explanatory of the apparent attempt to strike and shews that in truth, it is not an attempt — but only a menace — to do hurt to his person. It is difficult in practice, to draw the precise line which separates violence menaced from violence begun to be executed — for until the execution of it is begun, there can be no assault. We think, however, that where an unequivocal purpose of violence is accompanied by any act, which, if not stopped — or diverted — will be followed by personal injury — the execution of the purpose is then begun — •_ the battery is attempted. Thus, riding after a person so as to compel him to run into a garden for shelter to avoid being beaten, has been adjudged to be an assault. Morton vs. Shoppe, 3 Car. & Payne, 373 (14 Eng. Com. Law Rep. 355) So, in a late case, before a very eminent English Jndge, it was held, that where the defendant was advancing in a threatening attitude, with intent to strike the plaintiff, so that his blow would, in a second or two, have reached the *128plaintiff, if be had not been stopped, although when stop-Pe(^ was not; near eQ0U&^ to strike) an assault was committed. Stephen vs. Myers, 4 Car. & Payne, 349 (19 Eng. Com. Law, Rep. 414.) In the case under consideration, the "intent of the defendant to seize the prosecutor’s person was not in question. The instruction prayed for, and the instruction given necessdn^CJpresupposes it. The instruction prayed for is, “that if defeMant was not in striking^distance, when he made the blots, hpXvas not guilty of an assault,” and the instructiotu-giren is, that an offer “ to strike, at such a distance that arrymne-GOijId see the blots would not take effect, was not an assault” — but that “ the offer to strike would be an assault, although the assailant was not neat enough to reach, if the distance were such as to induce a man of ordinary firmness, under the accompanying circumstances, to believe that he would instantly receive a blow, unless he struck in self defence.” “ Rushing,” with that intent, upon the prosecutor, and approaching, in execution of that intent, so near as to rend^jt necessary for the prosecutor’s safety to'strike him down, amounts in law to- an assault the defendant.

Per Curiam. • Judgment to be affirmed.