Commonwealth v. Randall , 70 Mass. 36 ( 1855 )

Bigelow, J.

The mistake in the complaint was clearly a clerical one; and, after striking out the defective portion of the allegation, it charges in apt and sufficient words an assault and battery on Lucy Ann Keaeh. Courts of justice are disposed to treat as surplusage all erroneous and improper averments in complaints and indictments, when the residue of the allegations sets out the offence charged in technical language and with substantial certainty and precision. The authorities are numerous and decisive on this point. Archb. Crim. Pl. (5th ed.) 41, 107. The King v. Morris, 1 Leach, (3d ed.) 127. Commonwealth v. Hunt, 4 Pick. 252. Commonwealth v. Pray, 13 Pick. 359. Commonwealth v. Simpson, 9 Met. 138. [State v. Bailey, 11 Foster, 521.]

The instructions given tended to justify the defendant in punishing his pupils with greater severity than is consistent with a just and humane exercise of the authority conferred on him by law. To say the least, they were sufficiently favorable to the defendant. If, in inflicting punishment upon his pupil, he went beyond the limit of moderate castigation, and, either in the mode or degree of correction, was guilty of any unreasonable and disproportionate violence or force, he was clearly liable for such excess in a criminal prosecution. 1 Hawk. c. 60, § 23. 1 Russell on Crimes, (7th Amer. ed.) 755. Bac. Ab. Assault & Battery, C. It is undoubtedly true that, in order to support an indictment for an assault and battery, it is necessary to show that it was committed ex intentione, and that if the criminal intent is wanting, the offence is not made out. But this intent is always inferred from the unlawful act. The unreasonable and excessive use of force on the person of another being proved, the wrongful intent is a necessary and legitimate conclusion in all cases where the act was designedly committed. It then becomes an assault and battery, because purposely inflicted without justification or excuse. Whether, under all the facts, the punishment of the pupil is excessive, must be left to the jury.

Exceptions overruled.