Beach v. Hancock, 27 N.H. 223

Gilchrist, C. J. Several cases have been cited by the counsel of the defendant, to show that the ruling of the court was incorrect. Among them is the case of Regina v. Baker, 1 Carr. & Kirw. 254. In that ease, the prisoner was indicted under the statute of 7 Will. IV and 1 Vic. ch. 85, for attempting to discharge a loaded pistol. Rolfe, B., told the jury that they must consider whether the pistol was in such a state of loading that, under ordinary circumstances, it would have gone off, and that the statute under which the prisoner was indicted .would then apply.

He says, also, a if presenting a pistol at a person, and pulling the trigger of it, be an assault at all, certainly in the case where the pistol is loaded, it must be taken to be an attempt to discharge the pistol with intent to do some bodily injury.” From the manner in which this statement is made, the opinion of the court must be inferred to be, that presenting an unloaded pistol is an assault. There is nothing in the case favorable to the defendant. The statute referred to relates to loaded arms. The case of Regina v. James, 1 Carr. & Kirw. 529, was an indictment for attempting to discharge a loaded rifle.

It was shown that the priming was so damp that it would not go off. Tindal, C. J., said: “ I am of opinion that this was not a loaded arm within the statute of 1 Vic. eh. 85, and that the prisoner can neither be convicted of the felony nor of the assault. It is only an assault to point a loaded pistol at any one, and this rifle is proved not to be so loaded as to be able to be discharged.” The reason why the prisoner could not be convicted of the assault, is given in the case of Regina v. St.

George, 9 C. & P. 483, where it was held that on an indictment for a felony, which includes an assault, the prisoner ought not to be convicted of an assault, which is quite distinct from the felony charged, and on such an indictment the prisoner ought only to be convicted of an assault, which is involved in the felony itself.

In this case, Parke, B., said “ if a person presents a pistol which has the appearance of being loaded, and puts the party into fear and alarm, that is what it is the object of the law to prevent.” So if a person present a pistol, purporting to be a loaded pistol, at another, and so near as to have been dangerous to life if the pistol had gone off; semble that this is an assault, even though the pistol were, in fact, not loaded. Ibid. In the case of Blake v.

Barnard, 9 C. & P. 626, which was trespass for an assault and false imprisonment, the declaration alleged that /the pistol was loaded with gunpowder, ball and shot, and it was held that it was incumbent on the plaintiff to make that out. Lord Abinger then says, “ If the pistol was not loaded, it would be no assault,” and the prisoner would be entitled to an acquittal, which was undoubtedly correct, under that declaration, for the variance. Regina v. Oxford, 9 C. & P. 525.

One of the most important objects to be attained by the enactment of laws and the institutions of civilized society is, each of us shall feel secure against unlawful assaults. Without such security society loses most of its value. Peace and order and domestic happiness, inexpressibly more precious than mere forms of government, cannot be enjoyed without the sense of perfect security. We have a right to live in society without being' put in fear of personal harm. But it must be a reasonable fear of which we complain.

And it surely is not unreasonable for a person to entertain a fear of personal injury, when a pistol is pointed at him in a threatening manner, when, for aught he knows, it may be loaded, and may occasion his immediate death. The business of the world could not be carried on with comfort, if such things could be done with impunity. We think the defendant guilty of an assault, and we perceive no reason for taking any exception to the remarks of the court.

Finding trivial damages for breaches of the peace, damages incommensurate with the injury sustained, would certainly lead the ill-disposed to consider an assault as a thing that might be committed with impunity. But, at all events, it was proper for the jury to consider whether such a result would or would not be produced. Flanders v. Colby, post. Judgment on the verdict.