Term Paper on "Idaho Common Law and Statutes on Assault and Battery"

Term Paper 5 pages (1697 words) Sources: 6

[EXCERPT] . . . .

Assault and Battery

The crime of assault and battery has been defined over several centuries of case law, so that common law definitions have become quite descriptive and detailed. However, as social needs have adapted and changed, these definitions have, by necessity, also been altered to result in very different concepts of assault and battery. This paper will analyze the history of common law assault and battery elements, and will compare those with the statutes developed for one state, that of Idaho. Additionally, this paper will discuss possible reasons for the changes, and will examine future alterations in terms of modern society.

First, it is important to discuss the meaning of "common law." This term refers to a system of laws that have been developed over centuries from the original laws and customs of English rule. This development often occurs as cases come before a court, and rulings are made without specific legal precedence. These decisions then set their own precedence, which becomes common law. Common law is not the written law, but rather, the use of past cases to decide current ones (American Heritage Dictionary, 2003).

According to the opinions in State v. McAfee (107 N.C. 812, 2 S.E.2d 435, 1890), the common law definition of assault is "a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present." In Kirland v. State (43 Ind. 146, 154, 1873), the judges further defined the term as "intentional attempt by violence to do an injury to the person of another." It is important to note these show an important component of common law assault and battery, that of an intent to commit violence.

Kirland v. State (43 Ind. 146, 154, 1873) also helped to define the common law definition of the term battery. According to the opinions of that case, battery is the "unlawful touching of the person of another by the aggressor himself or by any substance put in motion by him." Additionally, common law often held that battery was the willful and unlawful use of force or violence on one person by another (State v. Magill, 19 N.D. 131; N.W. 330, 2266, 1892). According to case law, the slightest unlawful touching of another individual can be considered battery, since the law "cannot draw the line between different degrees of violence" (McKinney & Rich, 1914). By such statements, it can be assumed that common law sees battery as an element of assault. However, case law notes that battery is not an element of common law assault, and that assault does not require physical contact (People v Carlson, 160 Mich. 426, 429; 125 NW 3612, 1910). Therefore, it becomes clear that common law assault and battery requires intent to commit harm as well as knowledge of committing a harmful act.

However, it is easy to see there is a problem with the base definition of assault and battery, in that the original definitions did not differentiate between types of crime. As a result, and as the needs of modern society and the court system changed, the rules of common law assault and battery were revised to include simple assault, assault and battery, aggravated assault, and felony assault (.McClain, 1897). Simple assault was defined as the attempt to commit battery (Tarver v. State, 43 Ala 854, 1893), whereas battery was defined as a completed assault (State v. Magill, 1892). Aggravated assaults were simply classified under common law as having "a higher degree of violence intended" than simple assault, whereas felony assault was commonly understood to mean an assault in the commission of another felony act (McClain, 1897).

We can see from the above information that common law clearly distinguished between assault and battery, and further identified separate classes of the crime of assault. According to case law, this was done to assist in sentencing. In creating levels of assault from a lower crime to assault and battery to aggravated assault to felony assault, common law made it possible to sentence individuals in different ways for different degrees of the same base criminal act (McClain, 1897).

The current statute in Idaho for assault and battery is much more defined than common law. First, IC 18-901 defines assault as:

an unlawful attempt, coupled with apparent ability, to commit a violent injury on the person of another, or an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent (IC 18-901).

Here we can see the first divergence from common law. Remember that common law assault contained only an element of intentional attempt. Here, Idaho statute adds two elements, those of apparent ability and fear. Over the years, common law struggled to differentiate between assault and simple threat (Jacobs & Potters, 2001). This statute addresses the issue by adding the ability element. In other words, threats without ability to commit injury and those that do not cause true fear or concern for safety are not considered assaults (Jacob and Potters, 2001).

However, in terms of the definition of battery, Idaho statute holds almost exactly to original common law. IC 18-903, defines battery as:

willful and unlawful use of force or violence upon the person of another; or actual, intentional and unlawful touching or striking of another person against the will of the other; or unlawfully and intentionally causing bodily harm to an individual (IC 18-903).

Common law defined battery with elements of unlawful touching, use of force, or violence against another person. Each element is represented in this statute, and nothing has been substantially altered. This shows clearly that common law definitions for the term were deemed satisfactory to use in criminal law.

This is not the case, however, in terms of the definitions for the levels of assault and battery. Idaho statute IC 18-905 defines aggravated assault much differently than common law, and in a much more exact manner. The statute states that aggravated assault is an assault committed with a deadly weapon without intent to kill, by any means likely to produce great bodily injury, or with any chemical. Further, the statute states "Deadly weapon or instrument as used in this chapter is defined to include any firearm, though unloaded or so defective that it can not be fired" (IC 18-905). This statute is very clear in both the state's definition of aggravated assault, as well as the methods by which aggravated assault can be applied. In creating such an exact definition, the statute removes any question of what is applicable as aggravated assault. Whereas common law differentiated only on the basis of an ambiguous "violence" element, the state statute defines what that violence entails, that of a weapon without intent to kill, great bodily harm, or chemical weapons (IC 18-905). This level of detail shows a clear adaptation for use by modern society.

The definition of aggravated battery also differentiates from common law, which has no such definition. Idaho statute IC 18-907 defines the crime as someone who, in the course of committing battery, commits great bodily harm, disability, or disfigurement, uses a deadly weapon, uses a chemical, or attacks a pregnant female and causes harm to the fetus. The statute continues to state those performing consensual abortions, giving appropriate medical treatment to a pregnant female, or a woman who injures her own embryo or fetus, is not to be subject to aggravated battery (IC 18-907). It is clear through the very detailed description of instances regarding pregnant females that such a population was a primary focal point of this statute.

Finally, felony assault is defined by Idaho statute IC 18-909 as an assault with intent to commit "murder, rape, the infamous… READ MORE

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