soltino

Not to be a Kiljoy but the fact is:

That is assault in all jurisdictions with varying punishments.

tino

Charley B

I believe you're thinking of battery. Assault would be threatening to do it.

Ron_H

Charley is correct. It is battery. Assault is the intent, coupled with present ability, to do great bodily harm to another person.

Charley B

To constitute assault, their must also be an apprehension that a harmful contact is imminent, on the part of the victum. Intent and ability aren't sufficient to create a crime or a tort.

Ron_H

I agree that the danger must be imminent, which is "present ability". I have not understood that the intended victim must believe it will happen, only that it could likely happen. If he is across the street from the perpetrator, he has no fear that it might happen because there is no present ability. If a fist is raised in someone's immediate presence, it is present ability and that creates fear and that is assault. Threatening to toss a lighted cigarette into an auto which is likely to cause harm to the occupants is assault; if the occupants didn't perceive the person's intentions or ability to carry out the action, but is was perceived by a police officer, is it not still assault, and then is the officer not justified in intervening to prevent the act?

mcholdfast

Sounds like an open and shut case of self defense to me. If it were me, I would be able to plead insanity after seeing a lit cigarette on the hood of my car.

Ron_H

Emotionally, I can empathize with your opinion. However the cigarette was not placed on Allen's person, but was placed on his car. He in turn placed it back on the other party's person, not her car. His car may have suffered property damage, but no damage was actually suffered by Allen (save emotional distress) to justify an assault on her person. Don't get me wrong. I would be pissed, as he was. But he wasn't physically injured at all.

Charley B

You can intend to kill someone and have the ability, but unless you discuss it with another person (conspiracy), no crime has been committed.

At the moment your victum becomes aware of your bad intention you have committed assault, and the moment your action touches their body (cigarette lands in lap) you have committed battery.

Ron_H

I don't think we actually disagree. Absent criminal intent, no crime has been committed. That is stated somewher in the California Penal Code, if I remember it correctly. You must intend to commit a criminal act and that presupposes you know your act is one that is criminal and prohibited. The fact that you abort a threatening act that could, if carried out bring bodily injury to another person does not extinquish the assault. Pointing a gun at a person and then discontinuing that act may still constitute assault. I do not think conspiracy to commit a crime is a prerequisite condition, however. Allen did not discuss his intentions with anyone else. Geoffrey Daumer did not discuss his intentions with anyone else. He simply carried out his intentions, which were in themselves criminal.

Now not realizing they are criminal is another matter entirely.

Charley B

Yup, we're pretty much there. I just used conspiracy to illustrate that no crime is committed simply by intent and ability.

It's pretty simple really, if you let me know you're gonna kick my ***, you've committed assault. When you do it, it's battery. If you're parallized from the neck down when you threaten me, it's not assault. If you kick my *** anyway, it's a friggen miracle. Thank you Jesus.

Ron_H

OK, here is the law:

CALIFORNIA CODES
PENAL CODE
SECTION 240-248



240. An assault is an unlawful attempt, coupled with a present
ability, to commit a violent injury on the person of another.


In this case, my definition was not entirely correct. I said "intent" and that shows you how long it has been since I read this. Intent is not synonymous with attempt. I correct myself. I also said "great bodily injury" when it should have been "violent" injury. I did not get this from reading the law, but from a Dept. of Justice training instructor. I thus correct myself again, and beg your pardon.

I think the law as stated is perfectly clear.

Charley B

The reason it is worded that way is to allow for the fact that when the attempt becomes successful it has turned into battery; hence, Assault and Battery.

Ron_H

I agree.

Stylemobile

'Tis true that the cigarette was not placed on my person, it was placed on my car.
Consequently I did not place the cigarette on her person, I placed it on her dress.

-Allen

Stylemobile

Generally I believe that the right for anyone to swing their fists around ends where another person's nose begins. This was a case where i weighed the possible outcome of my actions before engaging the return launch of the projectile and decided that the possible consequences where worth the risk. I also felt that any danger factor to the other party was slight. I have no regrets in this instance. When i finally get to an assisted living facility, I may think of the moment i did this, smile broadly and share my story. There are two kinds of people in retirement facilities- those that have rooms in the middle of the hallway and those that are best suited for the end of the hall. This was a middle of the hall moment in my book.
I just hope that when I tell the story in the social room that some woman leaning on her walker doesn't open her mouth and say "So YOU"RE the bastard that did that to me!"

By the way, I am amused at how the discussion has evolved on this subject. Since I have your attention, I will share another road "incident" with all of you..... (I will put it in a separate reply as this one is getting too long.) Read on..................................