The History of Assault and Battery

The History of Assault and Battery

Looking back over the history of Assault and Battery, the records show quite a few strange events.

For instance a trial that took place in Habersham County, Georgia back in 1920. During the Assault and Battery trial, a tall and somewhat muscular woman was called as the state’s witness.

She testified that the Defendant threw his left arm around the victim’s neck and with his right fist, hit him several times in the face. The defense attorney, trying his hardest to get the witness to contradict herself, walked up to the witness stand and asked the woman to show the court exactly how the Defendant assaulted and battered the other party. She quickly threw her left arm around his neck and punched him in the face with her right fist, to his great surprise and to the astonishment of the assembled court. I suppose that the criminal defense attorney should have chosen his words more carefully.

Then there is the story of the Plaintiff and Defendant, who went out to shoot grey squirrels in violation of a Sunday Law (White v. Levarn, Vt. 1918). The Defendant shot at the grey cap of the plaintiff, mistaking it for a squirrel, and injured the Plaintiff. However, because the act was in violation of a Sunday Law, the case suddenly had to consider a number of points other than the Assault and Battery. First, the court made the distinction between “accident,” an action not intended by the Defendant and could not reasonably have been foreseen and avoided, and “mistake,” an intentional act but with the mistaken belief that it was justified. The court then held that one is not liable for “accidents,” but is responsible for “mistakes,” and if the Assault and Battery was more “mistake” than “accident,” then the Defendant was liable, but if it was more “accident” than “mistake,” then liability is doubtful. So far so good! But this is when it starts to get complicated because both Defendant and Plaintiff were in violation of a law that forbade the shooting of squirrels (of any colour) on a Sunday. So, the question now was whether or not the Plaintiff was entitled to damages, given he was in breach of a law. In the end, the court decided that even though the Plaintiff was in violation of the Sunday Law, it should not prevent his recovering damages for Assault & Battery, notwithstanding the fact that his violation directly contributed to his own injury. “To hold otherwise would be to impose an additional penalty for a violation of the statute not contemplated by the legislature, and would in effect make one who violated a Sunday law forfeit all right to protection from the wantonness of others.”

So I guess, the moral of this story is, if you are going out to shoot grey squirrels make sure: (1) you are not in violation of a law and (2) don’t wear a grey cap! That way, if you have to sue for Assault and Battery, it will be a far more straightforward case – and reduce the cost of your legal representation.

More History on Assault and Battery

Back in 1919, several men attempted to escape when the police raided a house, in which they were gambling. In the ensuing melee, one of them assaulted and battered a police officer. There was some evidence that the Assault and Battery was premeditated as a way to avoid arrest. The question the court had to decide was whether only the individual who committed the Assault and Battery was liable or given the alleged premeditated nature of the crime, the whole group was guilty. Authority upon this precise point was, at that time, scant. It was universally held that the mere presence of another party at the time and place of an assault cannot make him/her a party to it. On the other hand, if that person encourages the assault, even if they do not participate in it, he/she is indeed as guilty as the person who commits it. The prosecution argued that the facts of the case showed the existence of a conspiracy, whereby the Defendant was present, aiding and abetting his brother, who committed the assault. The court decided that an agreement to commit an Assault & Battery was an indictable offense, and all those present were found guilty.

Moral of this story? (1) Don’t get involved in a conspiracy to commit an Assault and Battery, and (2) if you do, call a good lawyer.

A Fishy Tale

Around the same time that the police were raiding the gambling house, a customer purchased some fish from a shop and a short time later called the shop and told the owner that she was dissatisfied with her purchase. She was told to return the fish, whereupon she would be refunded her money but would no longer be welcome back. When she returned the fish, the manager of the shop refunded the money and told her to go away and stay away, at which point she refused to leave the shop. The manager took hold of her by the arm and forcibly ejected her from the shop. The customer then brought an action for Assault and Battery against the manager. The court decided that she had no right to stay on the premises after she had been forbidden to do so. Further, it ruled the business owner has the right to decide who can and cannot enter his place of business and moreover, he is entitled to eject anyone he wants to and to select who he chooses to do business with. It upheld the right of the owner to forcibly eject the customer, given she refused to leave the shop because she had been told that permission to enter the shop was conditional on her returning the fish, receiving her money and leaving. Hence, she lost her case for damages for Assault & Battery.

Moral of this fishy tale? When asked to leave a place of business, go without causing trouble. Or, if not, have a good lawyer on stand-by.


“Dear Elliot, Just a short note filled with heartfelt thanks for your help and support in my defense during my court appearance. I can’t begin to express how grateful I am knowing this foolish incident and its aftermath is finally over. Thank again, so very much.”
“Thank you for representing me in court. Everything worked out for the better. I have been attending all my AA meetings, consulting at Catholic Charities and meeting with my probation officer. I haven’t had a drink since the day I went to court and everything is great at home.”
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“Dear Mr Savitz, Thank you so much for all your hard work, as well as your persistence on my case. I really appreciate your sensitivity in dealing with me on this matter. I feel good about the outcome of my case and am grateful to you for resolving it quickly.”
“We were absolutely astonished and very grateful for how Elliot handled our son’s case and would highly recommend him to anyone who is in need of legal council!”
“I’m sitting here thinking about what a remarkable victory you pulled off. I just had to let you know that it was an outstanding victory. Well done.”
“Dear Elliot, People are not immune to the ‘fortune’ in their life. The bright side is that someone is out there to save them. You are the person saving my fate. You represent ‘integrity and justice.’ You are the best lawyer on earth.”




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