The Daniel Penny case could get interesting.

Not according to the law that I quoted DIRECTLY from the statute. Attempt and threat are two different words with two different meanings.

 

I said battery is touching. Is that right or wrong?

I said the attempt to hurt someone is assault. Is that right or wrong? Firing a gun at you and missing is an example of an attempt and therefore assault.

 

Touching is battery, no argument. Firing a gun at you is an attempted battery as I understand it.

THREATENING to harm you (believable and iminent) is assault. I don’t have to actually ATTEMPT to harm you.

 

No, Swampbabe is correct. Battery is the touching, assault is putting one in fear of the touching. Attempted battery is not the same thing as an assault. If I knock you out, walk over to your prone body, shoot at you and miss, I have NOT committed an aggravated assault. You were not in fear of being shot...you were unconscious. I did, however, attempt to aggravated batter or murder you.

Firing a gun at someone could be an aggravated assault, an attempted aggravated battery, or an attempted murder depending the facts.

If I fire a gun at you and you are NOT aware I did that, I did not commit an aggravated assault, but I did commit an attempted aggravated battery/attempted murder.

 

Attempted battery is assault.

The other stuff you mentioned is correct.

My first post was to merely say touching is battery whereas an attempt or credible threat is assault.

I was taught that in 2 police academies that I attended as a student and my involvement in numerous other academies as an instructor but in another area. (Crimes against property)

 

I give up. I NEVER said that touching wasn’t battery. In your initial response you confused attempt with threat. I’m glad you came back to CLARIFY your response.

It was explained more clearly by a former prosecutor.

 

You're incorrect as to Florida law, I explained to you why and gave you examples. Check the jury instructions. Assault isn't a category one or two lesser included offense for battery. The only listed lesser is "attempt."

Assuming your academy instructors actually said that, they were wrong. If you taught students that, don't worry...the assistant state attorneys likely caught their charging errors and corrected them before court.

 

An attempt can be a threat

 

I didn’t teach it but witnessed it being taught as it was to me.

The instructors, some being attorneys said battery is touching. Assault if no one gets touched. If the assault involved touching it becomes a battery. All they were doing is teaching the difference using touch as the factor.

So you’re saying assault isn’t a category or charge? I thought it was and that there are different degrees like in murder 1 and 2, then manslaughter.

looking back at my initial post number 58, where am I incorrect?

Understanding the Difference Between Assault and Battery in Florida.

 

There are standard jury instructions that are read to juries throughout the state. In addition to the actual instructions for each crime, each one has a chart at the end listing the category one and two lesser included offenses. GENERALLY, category one lessers are always given to juries, category 2 may or may not be given depending on the charging document and the facts elicited at trial. Assault is not an option given to juries in a battery trial, which it would be if an assault is an attempted battery. The elements are different.

Perhaps the way it is explained here will be clearer that my attempts.

"While assault and battery are often treated as a single act, the two can be mutually exclusive. In other words, one can assault a person without committing a battery. Likewise, a person can commit a battery without assaulting that person. For example, if Bob stabs you from behind without you witnessing the attack, then Bob is committing a battery without an assault."

Many assaults are attempted batteries, but many are not. If I try to punch you and miss and you are aware of me doing it, I have committed an assault (putting you in fear of an unconsented to touching) and an attempted battery....I tried to touch you against your will, but failed. In those factual scenarios you are correct. I could be charged with either crime or both, but likely could only be sentenced on one or the other.

Change the facts. If I sneak up behind you, take a swing at you and miss, that is an attempted battery...again I tried to touch you against your will and failed, but I never assaulted you assuming you were unaware of my actions...I never put you in fear or apprehension of the touching. The proper crime to charge there would be attempted battery. An assault charge would never survive a motion to dismiss as you had no apprehension of the touching, an essential element.

If I sneak up behind you and punch you without you seeing it coming, I have battered you, but I have not assaulted you. Again, no fear or apprehension.

To repeat from above, "Many assaults are attempted batteries, but many are not." You are not incorrect when you state MANY attempted batteries are assaults, you are incorrect when you say assaults are attempted batteries or vice versa, because many times that's not the case.

The above is based on Florida law, the states are all over the place. NY, for example, doesn't have the crime of battery. All of their assaults and batteries are characterized as assaults.

I hope this makes better sense. This has gotten off topic and I'd like to see this thread get back on track.

 

Thanks for providing your knowledge. This is good education.

 

Lol... what's a jazz player like you doing with a gun?

 

Age and size differential should be defense too.

 

Fwiw I agree with this post.

My initial post is about the basic difference, except I threw out a couple words rather than stating like the link does.

I know there are scenarios like rape, murder, kidnapping, etc. where touching is labeled other than battery.

You have to go caveman to understand my first post where I merely say (in my own few words) what the link says. At least that’s what I meant.

Thanks for the explanations.

 

Thought I'd join the gun nuts & find out what the fuss is all about.

 

Okay, that's good. I thought it was for the non-clapping audiences.

 

You're going to find this to be an odd coincidence, but in Florida what everyone else considers to be rape is "sexual battery." We don't have a crime called "rape. " Our sexual battery statute also includes more types of contact in its definition than many might consider to be rape.
Go to subsection (1)(j) for the actual definition.
Statutes & Constitution :View Statutes : Online SunshineStatutes & Constitution :View Statutes : Online Sunshine

 

will be interesting to see the outcome