ruptures the cuticle only, and not the whole skin, is not a wound.56 Nor is throwing vitriol into a person's face a wounding.57 It is not necessary that the wounds be of a dangerous character or such as are likely to produce death.58 And some of the statutes cover any bodily injury, and hence do not require a technical wounding.59

To disfigure means to mar the figure and to render less perfect or beautiful in appearance.60

Under some of the statutes the wound must be inflicted by means of some instrument, and when such is the case the offense cannot be committed by biting off the end of a finger or other part of the body,61 or by throwing vitriol.62 In the absence of any provision in the statute on the subject, it is immaterial with what kind of an instrument the wound is inflicted.68 It need not be a deadly or dangerous weapon.64

$ 427. Malice and intent. Under some statutes the act must have been done maliciously as well as unlawfully,65 while other statutes in terms apply whether the offense is committed maliciously, or unlawfully but not maliciously, but provide for a greater punishment in the former case than in the latter.66 Some of the statutes require an intent to maim, disfigure, disable or kill,67 while under others.

56 Com. V. Gallagher, 6 Metc. (Mass.) 565.

57 Rex v. Murrow, 1 Moody C. C. 456.

58 State v. Webb, 266 Mo. 672, 182 S. W. 975; State v. Janke, 238 Mo. 378, 141 S. W. 1136.

59 State v. Gibson, 67 W. Va. 548, 68 S. E. 295, 28 L. R. A. (N. S.) 965. 60 State v Nieuhaus, 217 Mo. 332, 117 S. W. 73.

61 Erle's Case, 2 Lewin C. C. 133; Jennings' Case, 2 Lewin C. C. 130; Rex v. Stevens, 1 Moody C. C. 409.

62 Rex v. Murrow, 1 Moody C. C. 456. And see Henshall's Case, 2 Lewin C. C. 135.

63 State v. Nieuhaus, 217 Mo. 332, 117 S. W. 73.

The offense may be committed with a stone, State v. Leonard, 22 Mo. 449; or with the fists, State v. Webb, 266 Mo. 672, 182 S. W. 975; or by

throwing a hammer, Rex v. Withers,

1 Moody C. C. 294, 4 Car. & P. 446; or by striking with a bludgeon, Rex v. Payne, 4 Car. & P. 558; or by a blow with a stick or a kick with a shoe. Rex v. Brigg, 1 Moody C. C. 318.

64 State v Janke, 238 Mo. 378, 141 S. W. 1136; State v. Webb, 266 Mo. 672, 182 S. W. 975; State v. Nieuhaus, 217 Mo. 332, 117 S. W. 73.

65 Rose v. Com., 181 Ky. 337, 205 S. W. 326; Reg. v. Ward, 12 Cox C. C. 123.

66 State v. Gibson, 67 W. Va. 548, 68 S. E. 295, 28 L. R. A. (N. S.) 965; State v. Harr, 38 W. Va. 58, 17 S. E. 794.

67 State v. Gibson, 67 W. Va. 548, 68 S. E. 295, 28 L. R. A. (N. S.) 965; State v. Davis, 58 W. Va. 94, 51 S. E. 230.

a specific intent to wound or inflict grievous bodily harm is not essential.68 Neither malice 69 nor an intent to kill 70 is necessary under a statute punishing wounding or the infliction of great bodily harm in cases and under circumstances which would constitute murder or manslaughter if death had ensued.

III. DEFENSES

§ 428. Public authority. To constitute an assault and battery, the force threatened or applied must be unlawful. Public authority is a complete justification, provided it is not exceeded. Thus, an officer or a private individual is not guilty of an assault and battery in making a lawful arrest in a lawful manner, or in detaining a person who is lawfully in his custody,71 or in stopping a fight or suppressing an affray,72 or preventing a breach of the peace.73 He is guilty, however, if he arrests or detains a person without lawful authority,"

more force than is reasonably necessary.75 Some courts hold that an officer or private person has no right to do severe bodily harm in order to arrest a misdemeanant or to prevent his escape after he has been arrested,76 unless it is apparently reasonably necessary for him to do so in order to save himself from death or great bodily harm,77 and this is very generally held to be true where the person sought to be arrested is merely fleeing, and is not resisting arrest.78 In some states, however, an officer may use a deadly weapon if the misdemeanant forcibly resists him, or attempts to escape from custody after his arrest, provided it is reasonably necessary for him to do so.79

24 N. C. (2 Ired. L.) 201.

Tennessee. Galvin V. State, 6 Coldw. (46 Tenn.) 283.

Texas. Harper v. State, 84 Tex. Cr. 345, 207 S. W. 96.

A private person seeking to arrest for a felony must inform the felon of his purpose, or he may be treated as a trespasser. State v. Bryant, 65 N. C. 327.

75 Alabama. Patterson v. State, 91 Ala. 58, 8 So. 756.

Delaware. State v. Wyatt, 4 Boyce 473, 89 Atl. 217; State v. Mills, 6 Pennew. 497, 69 Atl. 841.

Indiana. Plummer v. State, 135 Ind. 308, 34 N. E. 968.

Missouri. State v. Fuller, 96 Mo. 165, 9 S. W. 583.

Montana. State v. Prlja, 57 Mont. 461, 189 Pac. 64.

North Carolina. State v. Sigman, 106 N. C. 728, 11 S. E. 520; State v. Pugh, 101 N. C. 737, 7 S. E. 757, 9 Am. St. Rep. 44; State. v. McNinch, 90 N. C. 695; State v. Belk, 76 N. C. 10; State v. Parker, 75 N. C. 249, 22 Am. Rep. 669.

Oklahoma. Roberson V. United States, 4 Okla. Cr. 336, 111 Pac. 984. Texas. Harper v. State, 84 Tex. Cr. 345, 207 S. W. 96.

He is criminally responsible if excessive force is used maliciously, or to such a degree as amounts to a wanton abuse of authority. State v.

Dunning, 177 N. C. 559, 98 S. E. 530.

76 Smith v. State, 59 Ark. 132, 26 S. W. 712, 43 Am. St. Rep. 20; Thomas v. Kinkead, 55 Ark. 502, 18 S. W. 854, 15 L. R. A. 558, 29 Am. St. Rep. 68; State v. Nott, 168 Iowa 617, 149 N. W. 79; Stoner v. State, 72 Tex. Cr. 482, 162 S. W. 836; Meldrum v. State, 23 Wyo. 12, 146 Pac. 596.

He may be convicted of an assault with a dangerous weapon if he shoots such a person in order to effect his arrest or to prevent his escape. Murkison v. State, 11 Ala. App. 105, 65 So. 684.

77 Stoner v. State, 72 Tex. Cr. 482, 162 S. W. 836. And see the other cases cited in the preceding note.

78 State v. Dunning, 177 N. C. 559, 98 S. E. 530; State v. Sigman, 106 N. C. 728, 11 S. E. 520; Roberson v. United States, 4 Okla. Cr. 336, 111 Pac. 984.

In California this is true where the arrest is made by a private citizen. People v. Lathrop, Cal. App.

192 Pac. 722.

An officer who shoots at a person on a mere suspicion of felony is guilty of an aggravated assault, if he has no reasonable ground to believe that the person shot at is guilty, and in fact he is not guilty.80 And according to some courts where an officer shoots a person on a mere suspicion of a felony, nothing but the actual guilt of the suspected person will excuse him.81 The criminal liability of an officer or private person for a homicide committed in effecting an arrest or preventing the escape of a person arrested will be considered in subsequent sections.82

An officer has no right to use force to levy an execution on property which does not belong to the execution defendant, and is guilty of assault in case he uses such force against the owner of the property, 88

§ 429. Corporal punishment. A parent is not guilty of assault and battery in moderately correcting his child,84 and the same is true of one who stands in loco parentis.85 So a teacher 86 may moder

80 An officer who shoots at an automobile in an attempt to arrest an innocent occupant on a suspicion of felony is guilty of assault with a dangerous weapon, where he has no reasonable ground to believe that such occupant has committed such felony. Wiley v. State, 19 Ariz. 346, 170 Pac. 869 L. R. A. 1918 D 373.

81 Com. v. Megary, 8 Phila. (Pa.) 616.

82 See §§ 635, 679, infra.

83 Smith v. State, 105 Ala. 136, 17 So. 107.

As to the right of the owner to prevent such a levy by force, see § 720, infra.

84 Alabama. Dean V. State, 89 Ala. 46, 8 So. 38.

Indiana. Hinkle v. State, 127 Ind. 490, 26 N. E. 777; Hornbeck v. State, 16 Ind. App. 484, 45 N. E. 620.

Michigan. People v. Green, 155 Mich. 524, 119 N. W. 1087, 21 L. R. A. (N. S.) 216.

North Carolina. State v. Jones, 95 N. C. 588, 59 Am. Rep. 282.

Pennsylvania. Com. V. Seed, 5 Clark 78.

Tennessee. Johnson v. State, 2 Humph. 283, 36 Am. Dec. 322.

85 State v. Gillett, 56 Iowa 459, 9 N. W. 362; State v. Koonse, 123 Mo. App. 655, 101 S. W. 139; State v. Alford, 68 N. C. 322; Stanfield v. State, 43 Tex. 167; Snowden v. State, 12 Tex. App. 105, 41 Am. Rep. 667.

Compare Davis v. State, 6 Tex. App.

133.

A stepfather stands in loco parentis as to stepchildren while they are treated as members of his family and supported and maintained by him, and he has the same right of chastisement as a parent. Gorman v. State, 42 Tex. 221.

But a guardian who has emancipated his ward in so far as his care, custody and control of her is concerned has no right to chastise her. Eitel v. State, 78 Tex. Cr. 552, 182 S. W. 318.

86 Alabama. Boyd v. State, 88 Ala. 169, 7 So. 268, 16 Am. St. Rep. 31.

ately chastise his pupil, and a master his apprentice.87 But, except in the case of master and apprentice, a master has no right to chastise his servant.88

A husband might formerly correct his wife without being guilty of assault and battery,89 but, as a rule, this is no longer the case,90 although he may still, no doubt, use necessary force to restrain her from committing crimes or torts for which he might be liable, or from adulterous intercourse, etc.91

For the purpose of discipline, the superintendent of a poorhouse or reformatory may, if necessary, inflict corporal punishment, or otherwise employ force, upon a pauper or prisoner, unless prevented by statute.92 And where the statute permits the infliction of corporal punishment upon convicts when reasonably necessary to enforce

Texas. Dill v. State, 87 Tex. Cr. 49, 219 S. W. 481; Harris v. State, 83 Tex. Cr. 468, 203 S. W. 1089; Ely v. State, 68 Tex. Cr. 562, 152 S. W. 631; Stephens v. State, 44 Tex. Cr. 67, 68 S. W. 281; Hutton v. State, 23 Tex. App. 386, 5 S. W. 122, 59 Am. Rep. 776.

This is true of a pupil who voluntarily attends school after becoming of age. State v. Mizner, 45 Iowa 248,

24 Am. Rep. 769.

87 State v. Dickerson, 98 N. C. 708, 3 S. E. 687; Com. v. Baird, 1 Ashm. (Pa.) 267; Rex v. Keller, 2 Shower K. B. 289.

A master cannot delegate authority to correct his apprentice. People v. Philips, 1 Wheeler C. C. (N. Y.) 155. 88 Com. v. Baird, 1 Ashm. (Pa.) 267; Cooper v. State, 8 Baxt. (Tenn.) 324, 35 Am. Rep. 704; Davis v. State, 6 Tex. App. 133.

89 1 Bl. Com. 444; State v. Black, 1 Winst. (N. C.) 266; Bradley against His Wife, 1 Keble 637. See also State v. Rhodes, Phil. (N. C.) 453, 98 Am. Dec. 78.

90 Alabama. Fulgham v. State, 46 Ala. 143.

Colorado. Bailey v. People, 54 Colo. 337, 130 Pac. 832, 45 L. R. A. (N. S.) 145, Ann. Cas. 1914 C 1142.

Delaware. State v. Buckley, 2 Har.

552.

Massachusetts. Com. v. McAfee, 108 Mass. 458, 11 Am. Rep. 383. New York. People v. Winters, 2 Park. Cr. 10.

North Carolina. State v. Oliver, 70 N. C. 60.

Texas. Gorman v. State, 42 Tex. 221; Owen v. State, 7 Tex. App. 329. 91 See Bradley V. State, Walk. (Miss.) 156; People v. Winters, 2 Park. Cr. (N. Y.) 10.

"It is a sickly sensibility which holds that a man may not lay hands on his wife, even rudely, if necessary, to prevent the commission of some unlawful or criminal purpose. "" Armstrong, J., in Richards v. Richards, 1 Grant's Cas. (Pa.) 389.

92 See State v. Hull, 34 Conn. 132; State v. Neff, 58 Ind. 516.