Justice v. Phillips

Opinion by

Judge Holt:

In this action by the appellant, Frances Justice, against the appellee, John Phillips, Sr., for an alleged assault upon her, the lower court, after the appellant had closed her testimony, sustained the appellee’s motion for a nonsuit. The evidence shows that the appellant, who is a woman of delicate health, was at her sister’s waiting upon her, and living there as one of the family. The two, together with another woman, were sitting in the house one morning, the husband of the sister being not then in the house, but at work near by, when suddenly, and without her knowing that he was near, the appellee sprang in the door with a cocked pistol in his hand, which, while he was cursing, he waived about, it being at times pointed at the appellant, and asked the sister if she knew where John Phillips, called “Butterhead”, was; and upon her informing him he left. Up to that time there had been no unkind feelings or ill will between the appellant and the appellee, and we infer that for this reason, and upon the idea that the conduct of the appellee toward the appellant did not in law constitute an assault, the motion for a nonsuit was granted. We can not concur. An assault is an unlawful offer of corporal injury to another by force, or it is force unlawfully directed toward the person of another under such circumstances as create a well founded fear of immediate peril.

Bishop says: “An assault is an unlawful physical force, partly or fully put in motion, creating a reasonable apprehension of immediate physical injury to a human being, as raising a cane to strike him, pointing in a threatening manner a loaded gun at him, and the like.” 2 Bishop’s Crim. Law, § 23. In the case of Tarver v. State, 43 Ala. 354, it was said: “An assault is an attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.”

R. T. Burns, for appellant. Jas. M. York, for appellee.

In this instance, with a seeming reckless disregard for the safety of human life and a criminal wantonness, the appellee in an angry manner flourishes a cocked pistol about, pointing it at times in the direction of the appellant. This in law constituted an assault upon her, even if the appellee had no special ill will against her, or was not angry at her in particular, subject of course to be aggregated or lessened in its character by all the circumstances attending it.

Judgment reversed and cause remanded for further proceedings consistent with this opinion.