Page:The Green Bag (1889–1914), Volume 09.pdf/484

 Inviolability of the Human Body.

445

holt т. Wright, 45 Ohio St. 577; 4 Am. St. Rep. 535. In this country, as to prize-fighters, it has been adjudged both ways. Chamber v. State, 14 Ohio St. 437; Com. v. Colberg, 119 Mass. 350; State v. Burnside, 56 Vt. 445; 48 Am. Rep. 801. As might be sup posed, the New England courts are stricter than that of Ohio on this point. The Massa chusetts court draw a just distinction be tween " manly sports calculated to give bodily strength, skill and activity, and 'to fit people for defense, public as well as per sonal, in time of need,'" and encounters that "serve no useful purpose, and tend to breaches of the peace." This was before the days of the favorite Boston hero, John L. Sullivan. A friendly set-to with soft gloves in private is not objectionable, but if the parties should fight till one was killed it might be manslaughter. Reg. v. Young, IO Cox Cr. C. 371. The Divine law forbade mutual combats (Exodus, xxi, 18, 19), and this was followed in civil actions in Adams т. Waggoner, 33 Ind. 531; 5 Am. Rep. 230; Bell т. Hansley, 3 Jones Law, 131; Dole г. Erskine, 35 N. H. 503. It has even been held "that one may not maim himself, because that unfits him for fighting for his lord, the King; and conse quently another may not maim him at his re quest"; both are guilty. Rex». Wright, i East PI. Cr. 396; People v. Clough, 17 Wend. 351 37The law entertains so high a regard for whips another, at his request, he commits the physical safety of some of the most no offense. State r. Beck, i Hill (S. C.), worthless members of society that it will not 363; 26 Am. Dec. 190. The complainant permit them voluntarily to hurt one another. being found by the defendant in possession At least so it is held in England, in case of of property stolen from him, earnestly en an angry tussle. Reg. т. Lewis, i C. & R. treated him to whip him rather than send 419. And so in King v. State, 4 Tex. Ct. him to jail, and he complied reluctantly and App. 54; 30 Am. Rep. 160; Shay v. molliter. The judge observes : " A surgeon Thompson, 59 Wis. 540; 48 Am. Rep. 588, who, for his patient's health, cuts off a limb, where two old men " fought with great spirit is not guilty of mayhem; or if one plucks a and brutality," and the defendant "gouged drowning man. out of a river by the hair of both eyes of the plaintiff," all about a dis his head, this is no assault. If according to puted wire fence; State v. Newland, 27 Kan. the prescription of the physician in the 764; Grotten r. Slidden, 84 Me. 589; Bar- Arabian Nights, a physician should beat his
 * 31 Am. Dec. 303. But if one merely

137. In an extreme case it was held that where a negro ran after a white woman, through the woods, shouting " Stop! " this was an assault with intent to commit rape, although the defendant relinquished the pursuit. State v. Neely, 74 N. €.75; 21 Am. Rep. 496. The court put this on the notorious instinct and common practice of the blacks, with a reference to the gallina ceous and the canine race, and scouted the suggestion that he might have intended mere robbery. Two judges dissented, and the decision was fairly overruled by general laughter, and the court frankly took it back in State v. Massey, 86 N. C. 658; 41 Am. Rep. 478. There is a good deal of learning and nice discrimination in the books respecting a contingent threat of assault. For example, if the prisoner said, "If it were not for" something or another which effectually dem onstrates that he could not possibly or certainly would not commit the threatened act, it is not an assault. Thus all the recent oral violence of our distinguished fellowcitizens, Messrs. Corbett and Fitzsimmons, at safe distance, constitutes no assault. As we do not intend this article to be learned or exhaustive, we refer the reader to sundry citations concerning contingent threats which were made in a serious vein in a note, 39 Am. Rep. 712, and in Browne's Criminal Law, p.