Fitzgerald v. Fitzgerald

51 Vt. 420

• Court: Supreme Court of Vermont
• Decided: January 15, 1879
• Status: Published

Opinion

The opinion of the court was delivered by

Barrett, J.

It is agreed that defendant has the burden of maintaining his plea of son assault. The defendant admitted seizing hold of plaintiff, and holding him awhile, and that after-wards, when they had become separated, and plaintiff was throwing mortar at him, he threw a piece of board at him, hitting him on the leg.

Those acts, thus admitted, were an assault and battery. Every battery includes an assault, is a maxim — though every assault does not include a battery. The court was literally and technically correct in saying in the charge that defendant admits that he assaulted the plaintiff. The rest of the extract from the charge is not criticised, as it could not well be. The court committed no error in the matter excepted to. It may be proper to add that, to the ordinary mind, the technical distinction between a simple assault, and an assault by a battery, is not very obvious or well understood, and when in common or professional parlance it is said that one person has assaulted another, the idea conveyed is, that the one person has inflicted some actual violence upon the person of another — not having merely made a fear-inspiring demonstration of violence, without in fact inflicting it. However this may be in the general, in this particular case the use of the word assault, if understood in its restricted technical sense by the jury, would indicate a less injurious and damaging act on the part of the defendant, than if the term battery or beating had been used.

Judgment affirmed. ■