Assault and Battery Merged

Assault and Battery Merged

The words assault and battery arrive in this course already loaded with common-law meaning, and the Code's use of the first word makes sense only against that background. At common law, battery was the application of force to another person's body, and the force could be slight. Spitting on someone and kissing someone without consent were both treated as batteries, because any degree of force against the body sufficed.¹ Assault, by contrast, took two forms: an attempt to commit a battery that failed, or a show of force that raised in the victim a reasonable apprehension of an imminent battery.² A battery therefore required a touching, while an assault could be complete without one, since a failed attempt or a frightening gesture was enough.

The civil case of Fisher v. Carrousel Motor Hotel, Inc., decided by the Supreme Court of Texas, shows how little the touching had to be. A club manager snatched a dinner plate out of a guest's hand and announced, because of the guest's race, that he could not be served there; the guest was never touched and did not claim to fear injury.³ The court still held the snatching a battery. It reasoned that the wrong in battery is the offense to the dignity of a person's body, which physical harm does not measure, and that an object grasped in the hand is so closely connected with the body that it counts as part of the person.⁴ Garratt v. Dailey, a Washington decision arising from a five-year-old's moving of a lawn chair just before an adult sat down, states the tort definition compactly: a battery is the intentional infliction of a harmful bodily contact, under a rule that also reaches offensive contact that is unconsented to and not otherwise privileged.⁵ Both are civil suits for damages, and together they set the baseline for reading the Code. The common-law wrong was an unpermitted contact, whether harmful or merely offensive, with no requirement of injury.

Everyday speech had already blurred the two labels before any code came along. Dictionaries record that people use assault loosely to mean a battery and popularly to mean any attack, and they note that some jurisdictions use assault as a generic term for either offense, so that a defendant who intentionally injures someone may be convicted of assault rather than battery.⁶ The shorthand phrase assault and battery is likewise treated loosely as a criminal battery.⁷ A student who hears assault and pictures a punch is therefore using a meaning that ordinary language and many statutes already share, and the Code builds on that meaning for the injury-based form.

Paragraph (a) of § 211.1(1) takes the generic usage and makes it the rule. It reaches a person who "attempts to cause or purposely, knowingly or recklessly causes bodily injury to another."⁸ The clause names the completed form (causing bodily injury) and the incomplete form (attempting to cause it) in one sentence, so what the common law split into battery and attempted battery becomes a single offense called assault. The reason for the merger lies in how little a landed blow tells us about the actor. Whether a blow connects often depends on luck, such as a victim who ducks or an actor with poor aim, while the actor's blameworthiness and dangerousness are identical either way. An offense defined by what the actor tried or was willing to do to the victim's body lets punishment track how culpable the actor was, and the technical line between a completed and an uncompleted touching adds nothing to that measure. Because ordinary usage already called injury-causing attacks assault, a single name also removes a vocabulary trap instead of creating a new concept.

The bar-fight punches in the introduction already ran the Code's side of the comparison: the blow that split a lip is assault because injury was caused, and the blow that missed is assault because injury was attempted.⁹ The contrast with the common law appears when a touching is offensive but harmless.

The outcome follows from the two definitions: contact with something as closely connected to the body as clothing is enough for battery, while the Code's paragraph asks for bodily injury, a term the next section defines.¹⁰

The merger also leaves one common-law meaning outside paragraph (a). The paragraph describes what the defendant attempts or causes to the victim's body and says nothing about what the victim fears or perceives.¹¹ The threat-type assault, in which the defendant's show of force frightens the victim, has its Code counterpart in paragraph (c), which reaches one who attempts by physical menace to put another in fear of imminent serious bodily injury.¹² A later section takes up paragraph (c). For sorting fact patterns now, students lose points when they read assault as the common-law threat offense: a victim's fear points toward paragraph (c), and caused or attempted harm to the body points toward paragraph (a).