Most of the states (all except Louisiana, to my knowledge) have adopted a “common law” technique to their criminal justice system. Without boring you with too many details, this basically means that many of our basic criminal laws are not formal laws (i.e., published statutes) at all. State legislators did not debate what the meaning of the criminal offenses should be, then vote for the suggested definitions, and then send the bills to the state governors for their signatures. They are merely legal definitions passed down from long ago rulings by English courts from when our country was a collection of British colonies.

As an example, in Virginia, you will discover no statutes that state what legally defines larceny, robbery, arson, or even murder, for that matter. We get these definitions from the English courts of yesteryear. As citizens, we are expected to know these laws and their definitions. There is a typical saying in criminal defense law, “ignorance of the law is no defense.” This is true for those laws that have been enacted by our state governments along with those that are based in common law. Most folks, however, can provide good examples of the common law crimes; but few, if any, can give the legal definitions unless they’ve been to law school.

So, what is an assault? And how is it different, or is it distinct, than a battery? Technically speaking, there is a difference. In reality, many states have equivocated the terms by statute to necessarily mean the same thing. A battery is defined as the intentional harmful or offensive touching of another. An assault may be defined as either an attempted battery, or the intentional placing of another in fear of injury.

By example, one commits a battery by picking up a baseball bat and intentionally striking another (provided, of course, the victim isn't a willing party). However, if that same person is swinging at a baseball and he inadvertently strikes someone else, that is not a battery simply because there was no intent to strike the other person. One commits an assault by one of two ways. They may intentionally swing the bat at another and miss, which would be an attempted battery; or they might simply hold the bat in a threatening manner towards the other individual placing that person in fear of being injured.

Another legal principle that is often used against those charged with assault and battery is that of “transferred intent”. Simply stated if one intends to strike one person and inadvertently strikes another, that person’s intent can be transferred to the person struck. In that situation, one can be charged with assault on the one (attempted battery) and battery on the other.

You cannot be charged with an assault and battery for the same act on the same individual. The moment the assault (attempted battery) becomes a battery, the assaultive act is merged with the battery offense.

Although both assault and battery are misdemeanor criminal offenses and usually labeled “simple”, you should speak to a criminal attorney for assault and battery if you have been charged with either offense. They will be able to chat with you any potential defenses to the charge, such as your objective during the act.

Author's Bio: 

James Garrett is a criminal defense lawyer in Virginia Beach at the Garrett Law Group, PLC. For more information about him or to contact him with questions about your case, please call (757) 422-4646.

Virginia Beach Criminal Lawyers