Woods v. State

Powers, J., delivered the opinion of the Court. The Crime of Assault and The Crime of Battery The common law crime of assault was described by Blackstone 1 as “an attempt or offer 2 to beat another, without touching him * * *.” The same author wrote that the crime of battery “* * * is the unlawful beating of another.” ⁶³⁰ In his work on Crimes and Criminal Procedure, (Second Edition) Hochheimer, in § 254, defines assault: “Any attempt unlawfully to apply the least actual force to the person of another constitutes an assault. The attempt is made whenever there is any action or conduct reasonably tending to create the apprehension 3 in another, that the person engaged therein is about to apply such force to him. It is sufficient that there is an apparent intention to inflict a battery and an apparent ability to carry out such intention.” Battery is defined by Hochheimer in § 255: “The least actual force unlawfully applied to the person of another constitutes a battery.

Force is applied, when there is any touching of the person or anything attached to the person by the aggressor or by any person or thing set in motion by him.” Clark & Marshall, Law of Crimes (Seventh Edition) separately defines the two crimes, saying, in § 10.15: “A simple assault under common law is typified by an attempt or offer, with unlawful force or violence, to do a corporal hurt to another.” and in § 10.19: “Any unlawful injury whatsoever, however slight, actually done to the person of another, ⁶³¹ directly or indirectly, in an angry, revengeful, rude, or insolent manner is a battery. Every battery includes an assault, so that on an indictment for assault and battery one may be convicted of an assault only.” To the same general effect are the definitions of the two crimes, given separately in each text, in 6 Am. Jur. 2d, Assault and Battery, §§ 3 and 5, 6 C.J.S. Assault and Battery, § 57 a and b, Perkins on Criminal Law (Second Edition), pp. 107 and 114, and Wharton’s Criminal Law and Procedure, §§ 329 and 337. In 6 C.J.S. Assault and Battery, § 57, it is said, “There is a clear and well defined legal distinction between an assault and an assault and battery.

They are separate and distinct offenses under the law.” We must take the term “assault and battery” as used here, as well as in many other texts, judicial decisions and statutes, as meaning, more precisely, “battery, with its included assdult”. The appellate courts of Maryland have had relatively little occasion to concern themselves with the definitions of assault and of battery, or with the close relation but clear distinction between the two crimes. In Handy v. Johnson, 5 Md. 450 (1854) the Court of Appeals said at page 465: “Where an assault is charged the authorities show that the jury are to decide whether there was any intention to do any violence or injury; but the authorities also establish, that if in a threatening and rude or angry manner a man points a sword, or fork, at another, or shakes his fist in the face of the other, within striking distance, attended with a present ability to strike, although no stroke is given, such act is an assault, notwithstanding the failure to strike.” In Lamb v. State, 67 Md. 524 , 10 A. 208 (1887), the Court of Appeals said in an illustrative dictum, at page 534: “A battery is defined to be the unlawful beating ⁶³² of another; and an assault is an attempt to beat another without touching him.” The Court of Appeals has more recently dealt with assault or battery or both in Yantz v. Warden, 210 Md. 343 , 123 A. 2d 601 , in Kellum v. State, 223 Md. 80 , 162 A. 2d 473 , in an opinion by Chief Judge Brune, containing a review of text and case authorities on the subject, in Hobbs v. Warden, 223 Md. 651 , 163 A. 2d 331 , and in Veney v. State, 251 Md. 159 , at pp. 176 and 177, 246 A. 2d 608 . This Court has discussed or referred to the elements of one or both of the crimes in a number of cases, including Weddle v. State, 4 Md. App. 85 , 241 A. 2d 414 ; Leatherberry v. State, 4 Md. App. 300, 242 A. 2d 599 ; Williams v. State, 4 Md. App. 643, 244 A. 2d 619 ; Price v. State, 5 Md. App. 127 , 245 A. 2d 600 ; Lyles v. State, 10 Md. App. 265 , 269 A. 2d 178 ; and Ott v. State, 11 Md. App. 259 , 273 A. 2d 630 .

We see no need to attempt to synthesize from these authorities any comprehensive definition of assault or of battery. The meaning of both is clear enough. Our purpose has been to show that assault is one crime and battery is another. There is no single crime properly called assault and battery.

When the term is used, either it refers to two crimes, or it refers to the crime of battery, and when it does the word assault is superfluous. In a number of cases we halve discussed the principles governing merger of, a lesser included, offense into a completed greater offense. With particular reference to merger of assault or battery into robbery, of which either or both are component elements, see the concurring opinion of Judge Orth in Massey v. State, 7 Md. App. 615 , 256 A. 2d 614 , at pages 618 and 619, and the opinion written for this Court by Judge Orth in Gray v. State, 10 Md. App. 478 , 271 A. 2d 390 , at pages 480-481. We have agreed with the statement in Clark & Marshall, Law of Crimes, supra, that on an indictment for assault and battery one may be convicted of an assault only. ⁶³³ Just as the assault or the battery which precede a larceny and combine with it to make the consummated crime a robbery, lose their identity as separate crimes when the greater crime of robbery is committed, so an assault which precedes a battery loses its identity as a separate crime when the greater crime of battery is committed.

Thus it is clear that battery stands in the law as a separate common law offense, made up of an attempt combined with the success of that attempt. One who unlawfully causes force to be applied, directly or indirectly, to the person of another, may be indicted, tried, convicted and sentenced for the crime of battery. The Present Case Henry Lee Woods, Jr. was convicted by a jury in Montgomery County of assault upon one individual, assault and battery of another, and of shoplifting. After sentences were imposed by Judge Irving A. Levine, he appealed.

In the early afternoon of January 9, 1971, Joseph Robert Gauthier was performing his duties as a major appliance salesman in the J. C. Penney Store in Silver Spring. He noticed appellant and a companion standing at a rack where stereo tapes were displayed. He observed what he felt were suspicious movements, and saw that the rack of cassettes was about half empty. He approached “to see what actually was going on”, and as he did so, appellant and his companion headed towards the front door.

Mr. Gauthier called to Harold F. Evans, acting manager of the department, to head them off. Appellant’s companion was carrying a shopping bag, which he dropped before the pair reached the door. Mr. Evans attempted to block the exit of the two men, and appellant produced an object that resembled a fountain pen and squirted a fluid into the face of Mr. Evans, rendering him temporarily unable to see. An alarm was set up outside, and as the men fled, Officer Warren C. Crane, of the Montgomery County Police, took up the ⁶³⁴ chase.

The men entered a car on a nearby parking lot, as Officer Crane approached the left front of the car. Appellant, driving, ignored the officer’s command to stop, and started the car forward. Officer Crane jumped to his right. He testified, “If I had stayed in the position I would have been run over.” He grabbed the door handle of the car and held on for a few feet, but could not maintain his hold.

Appellant was caught by another police car after a chase into the District of Columbia. The shopping bag contained some clothing, and sixty-one stereo tape cassettes, identified by Mr. Gauthier as the property of the Penney store. He said their value was $5.99 each. The police took custody of the shopping bag and contents, inventoried and listed the cassettes and the price marked on each, photographed them, and later returned them to the store.

An indictment thereafter returned by the grand jury charged appellant in seven counts, entitled in the indictment as follows: First Count — Assault with Intent to Murder Second Count — Assault and Battery Third Count — Assault Fourth Count — Shoplifting of Goods Over the Value of One Hundred Dollars Fifth Count — Shoplifting of Goods' Under the Value of One Hundred Dollars Sixth Count — Assault and Battery Seventh Count — Assault. The first three counts involved offenses against Warren C. Crane, the police officer, and the last two charged offenses against