body. Shylock complained that the mer chant had " spit upon his Jewish gaber dine," and the Venetian court practically held that his own proposal of revenge was an assault. In Draper v. Baker, 61 Wis. 450, a verdict of $1,200 against a man for spitting in a woman's face in a courthouse was deemed not excessive. In People z>. McMurray, i Wheel. Cr. Cas. 62, Mrs. Parker, " a respectable woman, living in the Bowery," having sold the defendant Jane some paint, and, going to her house to dun her for payment, found her painting, and some of the very paint from her brush was dropped out of a second-story window on Mrs. Parker while retreating, "which effec tually destroyed her silk dress." This was really too much — to have her gown ruined by the paint which had not been paid for, — and the court held this an assault if proved. The counsel do not appear to have made the point that Mrs. P. was contributorily negligent in going collecting in a silk gown. But the jury found the defendant not guilty, and so the respectable Mrs. Parker not only lost her gown but also her paint, except that which she brought away on her gown. The law goes even further and holds that there may be an assault even where there is no touching or threat of touching, provided the acts in question indicate the purpose to assault, as where one enticed a child into a secluded place, and was there detected near her indecently exposed. Hays v. People, I Hill, 351. If the act is intrinsically and grossly care less or dangerous, the force need not be directly nor even intentionally communi cated. As in the famous ancient case of Scott z'. Shepherd, 2 Bl. 892, where the fire work was tossed from hand to hand by several trying to avoid it, and the original thrower was held responsible for its final explosion; and so where one pushed a drunken man against another and hurt the latter, Short v. Lovejoy, Bull. N. P. 16; and so where one whipped his horse until it ran
away and against a man, Gibbons v. Pepper, 4 Mod. 405. If the act is so grossly negligent or reck less as to indicate a disregard of human life or safety, the actor may even be punished criminally. As in the case of a careless railway conductor, or a careless keeper of a dangerous wild beast, or one who " did not know it was loaded." Reg. v. Spencer, ю Cox C. C. 525; Com. гг. Hartwell, 128 Mass. 415; 35 Am. Rep. 351; State v. Hardie, 47 Iowa, 647; 29 Am. Rep. 496. But ordinarily the act must be intentional. It does not arise from mere ordinary negli gence. So if a man should break his wife's ribs while lovingly embracing her, it would not be a criminal assault. Queen r. Clarence, 22 Q. B. Div. 23; and so if he injures another while driving fast. Com. i1. Adams, 114 Mass. 323; 19 Am. Rep. 362. The wife and the foot passenger must keep out of the way. In all such cases, however, there may be a recovery of damages in a civil action, although the criminal intent is lacking. As for example, when a careless bicyclist rides down a foot passenger, Mercer v. Corbin, 117 Ind. 450; i o Am. St. Rep. 76; or where one is injured by the glancing of a bullet carelessly fired at a mark, Welch v. Durand, 36 Conn. 182; 4 Am. Rep. 55; or is killed by a discharge of musketry in practice by a regiment at the command of the colonel, one gun being carelessly left loaded, Castle v. Duryea, 32 Barb. 480; or where an infant shoots another while playing with a gun, Conway i>. Reed, 66 Mo. 346; 27 Am. Rep. 354; or negligently shoots another while hunting, Haskins v. Watkins, 77 Hun. 360; or while " firing a salute" to induce a restaurant keeper to open unto him, Daingerfield z'. Thompson, 33 Gratt. 136; 36 Am. Rep. 783. In none of these instances of mere carelessness without malicious intent is there any criminal liability, but the careless party must respond in money. Nor can he invoke the principle
