TO DO OR TO DO AND SAY? by Edwin Jude Doe


Reading law of torts makes one wonder the extent of liability created in events which have already happened, those that are happening and that which might happen. Who knew an unwanted kiss may amount to battery? Even to touch a person without his consent or some other lawful reason is actionable. Most of us would have been liable in primary school for the former.

Battery and assault: one a subset of the other. Assault is described as an incomplete battery because the elements are substantially the same as that of battery, except that, in assault, there is only an apprehension of imminent physical contact. Salmond further sates that, “It was also quite clear that a person could be guilty of an assault without being guilty of a battery.  On the other hand, in popular speech “assault” includes a battery”. Also, he thought that the legal and the popular terminology should coincide.


The Elements of Assault

As stated above, assault is incomplete battery and hence, in assault, there is no physical contact. However, the law stresses on some key elements of assault. As captured by Street, an assault could be an act with an intention or threat from the defendant to commit battery. Also, the act of the defendant must carry an ability to execute this intention.

Lest we forget, there must be an apprehension or fear of contact from the plaintiff in an action for assault.

This article tries to stretch the law on the scope of intent and its negation particularly in the case of Stephens v. Myers and Tuberville v. Savage.

In Stephens v. Myers, the plaintiff, acting as chairman at a parish meeting, sat at the head of a table, at which table, the defendant also sat, there being about six or seven persons between him and the plaintiff. The defendant, in the course of some angry discussion, said, he would pull the chairman out of the chair and then immediately advanced with his fist clenched toward the chairman. He was stopped by the churchwarden, who sat next but one to the chairman, at a time when he was not near enough for any blow he might have meditated to have reached the chairman.

In this case, Tindal CJ’s said, ‘whether the defendant was advancing at the time, in a threatening attitude, to strike the chairman, so that his blow would almost immediately have reached the chairman, if he had not been stopped then, though he was not near enough at the time to have struck him, yet if he was advancing with that intent, I think it amounts to an assault in law. If he was so advancing, that, within a second or two of time, he would have reached the plaintiff, it seems to me it is an assault in law The jury found for the plaintiff. In appraising this decision, one would come to the conclusion that, the Tindal CJ was interested in the intent of the defendant. Was his intent continuous irrespective of the fact that he was stopped? Would he have carried on with his intention? I believe so.

Then again, in the case of Tuberville v. Savage, the evidence to prove a provocation was, that the plaintiff put his hand upon his sword and said, ” If it were not assize-time, I would not take such language from you.” Did this amount to an assault? The Court agreed that it was not; for the declaration of the plaintiff was that, he would not assault him, the Judges being in town. The court describes an assault as the intention as well as the act. Furthermore, if one strike another upon the hand, or arm, or breast in discourse, it is no assault, there being no intention to assault; but if one, intending to assault, strike at another and miss him, this is an assault : so if he holds up his hand against another in a threatening manner and says nothing, it is an assault. In summary, words accompanied by an act amounts to a negation of an assault.

The Difference between the two cases.

On a superficial level, one may conclude that the sole difference would be the presence of intent in one and the absence in the other. No objections there. However, taking a closer look at both cases, in the Stephens v. Myer case, though the court concluded that there was intent, interference to his contemplated act did not matter because the defendant did not consciously stop the action by himself. On the other hand, the interference (being the assize in town) made the defendant consciously stop an action he would have done by uttering the words “ If it were not assize-time, I would not take such language from you”. The conclusion drawn here is that, the defendant consciously withdrew from his act. I believe that would be enough to get the intent or otherwise of the defendant.

Salmond believed that, words accompanying an act may render harmless what might otherwise be an assault. The question which then comes to mind is whether a secondary act, without words can amount to negating an assault?

Let’s take a hypothetical situation. In a room where A and B are arguing, with each party at the other end of the room. A gets angry and starts moving from his end of the room with palm stretched out to slap B and then halfway, B’s mother who is known to be strong enters the room. A then puts his arm down showing his discontinuance although B is in fear. Does this amount to assault? Or A’s action of putting his arm down on seeing B’s mother amounts to negation of the assault? How do we decipher the intention of A?

On one hand, one may side with the decision in Stephens v. Myers and conclude that, he being stopped by the presence of B’s mother was immaterial since he would have gone ahead with his action to slap B.  Then again, one may say that, the defendant, on seeing B’s mother, made a conscious effort to withdraw his action, therefore, negating the assault. Although words were not uttered as was in the Tuberville v. Savage case, the secondary action of consciously putting his hand down on seeing B’s mother (being the interference to act) could arguably be considered as negating his primary act. A could have thought to himself, “if not for your mother, I would have slapped you”.

From this hypothetical situation, one would raise two questions.  Does intent to commit an assault centre around my conscious effort to act? And does this consciousness if I do not want to act, focus on only words accompanied with actions to negate an assault?

An incomplete answer would be, “Not even the devil knows the thought of man”, moving to the arena of constructive intent of actions. Even so, objectively speaking, one can reasonably say had B’s mother not appeared, (which stopped A), A would have carried out his intention, or the act of putting his hand down on seeing B’s mother even though not uttering any words, relinquished the act of assault.

What is the true extent of negating an assault? Words accompanied with actions only? Or Secondary actions too may suffice in certain circumstances?