Hays v. People , 1 Hill & Den. 351 ( 1841 )

By the Court, Cowett, J.

There is no doubt of the prisoner’s intent; and the only question is, whether he had proceeded in it so far as to warrant the court in submitting to the jury whether he was guilty of an assault. The charge was, that if they believed the prisoner enticed Maria to the loft for the purpose of ravishing her, she being under ten years of age, the offence of an assault with intent to commit a rape was established.

The assent of such an infant being void as to the principal crime, it is equally so in respect to the incipient advances of the offender. That the infant consented to, or even aided in the prisoner’s attempt, cannot, therefore, as in the case of an adult, be alleged in his favor, any more than if he had consummated his purpose. The case submitted to the jury, was that of a man having another in his power, and within reach, threatening and exerting the means to accomplish meditated violence upon her person. This is clearly an assault within all the authorities. An assault is defined by these, to be an attempt with force or violence to do a corporal injury to another; and may consist of any act tending to such corporal injury, accompanied with such circumstances as denote at the time an intention, coupled with the present ability, of using actual violence against the person. There need not be even a direct attempt at violence; but any indirect preparation towards it, under the circumstances mentioned, such as drawing a sword or bayonet, or even laying one’s hand upon his sword, would be sufficient. (1 Selw. N. P. 27, Am. ed. of 1839. Bull. N. P. 15. 3 Chit. Cr. Law, 821, note (H.) Am. ed. of 1836.)

The court below were clearly right, and the judgment should be affirmed. ■

Judgment affirmed.