Le Grand, C. J.,
delivered (he opinion of this court.
This is an action of trespass for an assault and battery. The plaintiff, to sustain his case, proved by a competent witness, that sometime in December 1850, the appellants came to his dwelling house; that witness being in a neighboring shop, heard a tremendous to-do in the dwelling and angiy talk; that Handy, when witness entered the house, was standing over the bed in which the plaintiff, Johnson, was lying sick, and shaking his fist right into the face of the plaintiff and saying to him, if he did not make a compromise for the timber that one Harvey had cut, he would sue him before Saturday night; that after some conversation with witness Handy took a seat, from which he immediately jumped up and went to the bedside again, shook his fist in plaintiff’s face and repeated the same language he had used before. That when they left the house witness followed and asked the defendant, Handy, if he was not ashamed to treat the old man in that way, to which he replied no, d — d if he wasyand, having a stick in his hand, [463]*463told witness if he would go into the road he would wale him well. The witness further proved that Mr. Handy’s voice and manner was very loud and angry all the time after witness went in, and that when Handy went the last time to the plaintiff the latter fainted.
These are the principal facts in the case, and are sufficient to present with distinctness the questions arising under the pleadings and prayers.
The first count in the declaration charges a joint assault and battery against the appellants, and the second a joint trespass in breaking and entering the plaintiff’s dwelling.
We hold that the declarations or acts accompanying or immediately following the commission of the act complained of, are competent and proper evidence to explain such act. The rule applicable to the res gestee does not require the circumstance proposed to be given in evidence should have occurred at the precise time when the principal fact happened; if it arose either at the time or so soon thereafter as to constitute a part of the transaction, then it serves to give color and definiteness to it. In this view we hold the court rightfully admitted the testimony of the witness, Johnson, as to the declarations of Handy immediately after he had left the house of the plaintiff.
The 1st, 6th, 7th, 8th and 18th prayers relate to the assault charged on Tull and his participation with Hand}', and ask the jury to find for him on the issue formed on the first count. These prayers refer to the jury the following questions: the 1st, what is “co-operation” between parties charged as co-trespassers? the 6th, what is “aiding, encouraging and countenancing?” the 7th, what is “participation?” the Sth, what is “aiding and abetting?” and the ISih, what is “co-operation?” We think the court properly rejected these prayers, because, if for no other reason, they were calculated to mislead the jury by directing their attention exclusively to his conduct while in the house of the plaintiff, and withdrawing their minds entirely from the proof of what had previously taken place tending to show his knowledge of the intention with which Handy went to the house. That intention is disclosed in the conversation between the witness, Dize, and Handy, when the latter said [464]*464he was going lo the plaintiff’s room, and disclosed in very improper language how he designed to treat him. Tull was present at this conversation, and at the request of Handy consented to accompany him.
Prayers Nos. 10 and 16 relate to Tull, and require the jury to decide the legal question of what is an assault, and therefore erroneous.
The 3rd, 20ih, 22nd, 5th, 11th, 17th and 25th prayers relate to the second count, and are based upon the assumption that there is evidence of a license on which the defendants had a right to insist that they should have been granted. We cannot think so. We see no proof whatever of a license in fact; and conceding, (for we do not-Mecide the question,) that under the pleas of license in their present form evidence of a liceape' in law might be given, there is none which can authorize this court to reverse the decision below refusing these instructions. If it. were admitted that A man may, in a peaceable and quiet manner, lawfully visit the house of another fo'rfhe purpose of arranging a matter of business, still it certainly cannot be said that the law will license a party to enter a mail’s house for such a purpose under the circumstances disclosed in the testiinony. It appears that a few days before the visit alluded to, in a conversation relative to the timber alleged to have been cut by the agent or hands of the plaintiff upon the premises belonging to the mother of the defendant, Handy said he was going to the plaintiff’s room, and spoke of him in the most abusive language and threatened to maltreat him. He asked Tull, the other defendant, to go with him, which he consented to do. When these parties made their intended visitjto the plaintiff, his son not knowing they were there, but hearing a “tremendous to-do” in the house and angry talking, went in, and found Handy standing over the bed in which his father, the plaintiff, was lying, and shaking his fist in the face of the plaintiff, and saying to him, if he did not make a compromise for the timber Harvey had cut he would sue him before Saturday night. Handy then turned to the witness and said: "I’ve come to the old man to make a compromise for (he timber Harvey has cut. Witness said, why do you come to the old man? why [465]*465did you not go to Harvey? and Handy said d — n Harvey, he had nothing to do with Harvey. The plaintiff then said, I’ve cut nothing on you; I’ve never seen the place since 1 bought it. Handy then sat down, but in a minute or two jumped up and went to the bedside again and shook his fist in the plaintiff’s face and repeated the same language he used before.” The witness says, ‘‘Handy kept going on very rough, and turned to Mr. Tull and said, now Mr. Tull we ’ll go.” They went cut; and just at the door Handy used abusive language to the witness in reply to a question, whether he, Handy, was ¡not ashamed to treat the old man in such a manner? The witness says that all the time he was in the house, Handy’s voice and manner were very loud and angry. Upon such proof we do not think the court committed any error in refusing to grant the prayers in relation to license.
We have very carefully examined all the authorities referred to by the counsel in argument, and also many others. It would be an useless task to examine them here in detail, and we therefore content ourselves with stating what we understand to be the meaning of all of them on the subject of an assault.
Where an assault is charged the authorities show that the jury are to decide whether there'was an intention to do any vio -I lence or injury; but the authorities also establish, that if in af threatening and rude or angry manner a man points a sword, or fork, at another, or shakes his fist in the face of the other j' within striking distance, attended with a present ability to strike,| although no stroke is given, such_act is an assault, notwith-i standing the failure to strike. And the jury cannot inféra! want of intention to do violence or injury, merely from the failure to strike, in the absence of any declarations or circumstances indicating an absence of such intention, other than the fact^, that no blow was given, If,_ however, there are any declara- ¡
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Le Grand, C. J.,
delivered (he opinion of this court.
This is an action of trespass for an assault and battery. The plaintiff, to sustain his case, proved by a competent witness, that sometime in December 1850, the appellants came to his dwelling house; that witness being in a neighboring shop, heard a tremendous to-do in the dwelling and angiy talk; that Handy, when witness entered the house, was standing over the bed in which the plaintiff, Johnson, was lying sick, and shaking his fist right into the face of the plaintiff and saying to him, if he did not make a compromise for the timber that one Harvey had cut, he would sue him before Saturday night; that after some conversation with witness Handy took a seat, from which he immediately jumped up and went to the bedside again, shook his fist in plaintiff’s face and repeated the same language he had used before. That when they left the house witness followed and asked the defendant, Handy, if he was not ashamed to treat the old man in that way, to which he replied no, d — d if he wasyand, having a stick in his hand, [463]*463told witness if he would go into the road he would wale him well. The witness further proved that Mr. Handy’s voice and manner was very loud and angry all the time after witness went in, and that when Handy went the last time to the plaintiff the latter fainted.
These are the principal facts in the case, and are sufficient to present with distinctness the questions arising under the pleadings and prayers.
The first count in the declaration charges a joint assault and battery against the appellants, and the second a joint trespass in breaking and entering the plaintiff’s dwelling.
We hold that the declarations or acts accompanying or immediately following the commission of the act complained of, are competent and proper evidence to explain such act. The rule applicable to the res gestee does not require the circumstance proposed to be given in evidence should have occurred at the precise time when the principal fact happened; if it arose either at the time or so soon thereafter as to constitute a part of the transaction, then it serves to give color and definiteness to it. In this view we hold the court rightfully admitted the testimony of the witness, Johnson, as to the declarations of Handy immediately after he had left the house of the plaintiff.
The 1st, 6th, 7th, 8th and 18th prayers relate to the assault charged on Tull and his participation with Hand}', and ask the jury to find for him on the issue formed on the first count. These prayers refer to the jury the following questions: the 1st, what is “co-operation” between parties charged as co-trespassers? the 6th, what is “aiding, encouraging and countenancing?” the 7th, what is “participation?” the Sth, what is “aiding and abetting?” and the ISih, what is “co-operation?” We think the court properly rejected these prayers, because, if for no other reason, they were calculated to mislead the jury by directing their attention exclusively to his conduct while in the house of the plaintiff, and withdrawing their minds entirely from the proof of what had previously taken place tending to show his knowledge of the intention with which Handy went to the house. That intention is disclosed in the conversation between the witness, Dize, and Handy, when the latter said [464]*464he was going lo the plaintiff’s room, and disclosed in very improper language how he designed to treat him. Tull was present at this conversation, and at the request of Handy consented to accompany him.
Prayers Nos. 10 and 16 relate to Tull, and require the jury to decide the legal question of what is an assault, and therefore erroneous.
The 3rd, 20ih, 22nd, 5th, 11th, 17th and 25th prayers relate to the second count, and are based upon the assumption that there is evidence of a license on which the defendants had a right to insist that they should have been granted. We cannot think so. We see no proof whatever of a license in fact; and conceding, (for we do not-Mecide the question,) that under the pleas of license in their present form evidence of a liceape' in law might be given, there is none which can authorize this court to reverse the decision below refusing these instructions. If it. were admitted that A man may, in a peaceable and quiet manner, lawfully visit the house of another fo'rfhe purpose of arranging a matter of business, still it certainly cannot be said that the law will license a party to enter a mail’s house for such a purpose under the circumstances disclosed in the testiinony. It appears that a few days before the visit alluded to, in a conversation relative to the timber alleged to have been cut by the agent or hands of the plaintiff upon the premises belonging to the mother of the defendant, Handy said he was going to the plaintiff’s room, and spoke of him in the most abusive language and threatened to maltreat him. He asked Tull, the other defendant, to go with him, which he consented to do. When these parties made their intended visitjto the plaintiff, his son not knowing they were there, but hearing a “tremendous to-do” in the house and angry talking, went in, and found Handy standing over the bed in which his father, the plaintiff, was lying, and shaking his fist in the face of the plaintiff, and saying to him, if he did not make a compromise for the timber Harvey had cut he would sue him before Saturday night. Handy then turned to the witness and said: "I’ve come to the old man to make a compromise for (he timber Harvey has cut. Witness said, why do you come to the old man? why [465]*465did you not go to Harvey? and Handy said d — n Harvey, he had nothing to do with Harvey. The plaintiff then said, I’ve cut nothing on you; I’ve never seen the place since 1 bought it. Handy then sat down, but in a minute or two jumped up and went to the bedside again and shook his fist in the plaintiff’s face and repeated the same language he used before.” The witness says, ‘‘Handy kept going on very rough, and turned to Mr. Tull and said, now Mr. Tull we ’ll go.” They went cut; and just at the door Handy used abusive language to the witness in reply to a question, whether he, Handy, was ¡not ashamed to treat the old man in such a manner? The witness says that all the time he was in the house, Handy’s voice and manner were very loud and angry. Upon such proof we do not think the court committed any error in refusing to grant the prayers in relation to license.
We have very carefully examined all the authorities referred to by the counsel in argument, and also many others. It would be an useless task to examine them here in detail, and we therefore content ourselves with stating what we understand to be the meaning of all of them on the subject of an assault.
Where an assault is charged the authorities show that the jury are to decide whether there'was an intention to do any vio -I lence or injury; but the authorities also establish, that if in af threatening and rude or angry manner a man points a sword, or fork, at another, or shakes his fist in the face of the other j' within striking distance, attended with a present ability to strike,| although no stroke is given, such_act is an assault, notwith-i standing the failure to strike. And the jury cannot inféra! want of intention to do violence or injury, merely from the failure to strike, in the absence of any declarations or circumstances indicating an absence of such intention, other than the fact^, that no blow was given, If,_ however, there are any declara- ¡ dons or circumstances tending to indicate a want of such inten- ¡ tion, then the jury are bound to take the declarations or circum- J stances into consideration, in deciding upon (he intention.
If the fact that no blow ha% been given, when not prevented by any physical impediment or inability to inflict one, can ,per ve, justify the jury in finding there was no intention to do in[466]*466jury, or to commit violence, and consequently no assault was committed, it would be impossible to establish an assault, by proving the pointing of a sword or fork at a man, or the shaking of a fist in his face, within striking distance, with a present ability to strike, no matter how violent, threatening or rude, the manner of the assailant, unless an actual battery should follow.
In the charge of murder malice is an essential ingredient to constitute the offence, and to decide whether there is or not malice, is quite as much the province of the jury, as to decide the question of intention, when an assault is the offence charged; and yet in a trial for murder, when facts are proved, the law implies malice, and the jury are not authorised to disregard that implication until it is rebutted, or removed by proof of circumstances sufficient for that purpose.
When the testimony given in this case is considered, in connection with the principles thus stated, we think the court were right in refusing the prayers numbered 2, 12, 13 and 14. Nos. 1, 12 and 14, are also subject to the objection that they submit a question of law to the jury, that is, What is an assault? and No. 13 is founded upon the testimony of Mr. Bell, which does not authorise it. That witness, on cross-examination, expressly negatived the hypothesis of the prayer. That instruction assumes the statement of Johnson to be true, in regard to the conduct of Handy, when shaking his fist in the plaintiff’s face; and if that statement be correct, no rational mind could possibly arrive at the conclusion, from Bell’s testimony, that the shaking of the fist by Handy was but the natural and habitual brandishing of his fist and arm.
Although there is a contradiction in the action of the court in regard to the instructions marked B and G, in granting them, and then declaring there was no evidence to support the fact which by them the jury was authorised to find, still, the defendants have no right to complain, if, in point of fact, there was no evidence to sustain the theory of the prayers: and such we are of opinion was the case. On the whole we are of the opinion the judgment ought to be affirmed.
Judgment affirmed.