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Do You Know the Difference Between Assault and Battery?



Mar 14, 2018

Have you been charged with Assault? If so, you're in the right place.

North Carolina Attorney Bill Powers has been representing clients charged with assault and battery since 1992. In this episode, Attorney Powers answers the questions that matter to you when you when you've been charged with assault.


Modified Transcript of “Do You Know the Difference Between Assault and Battery?” for the Hearing Impaired

Announcer: You're listening to "Law Talk with Bill Powers", your resource for answers to your most pressing legal questions. Attorney Bill Powers sits down with some of today's leading legal minds to discuss everything from legal issues and legislation to practice tips and policy. Now here's your host, an NBTA board-certified criminal law specialist, former President of the North Carolina Advocates for Justice and renowned trial lawyer, Bill Powers.

Robert Ingalls: Welcome to another episode of "Law Talk with Attorney Bill Powers". I am Robert Ingalls, and I will be your guest host for this episode. How are you doing today, Mr. Powers?

Bill Powers: I'm well. Hello.

Robert Ingalls: All right. It is nice to be here with you again today, and today we are talking about assault and battery. Those terms I've heard thrown around, and they almost come off synonymous.

Bill Powers: They are.

Robert Ingalls: Okay. That was my first question. Is there a difference?

Bill Powers: There are technical legal differences between an assault and a battery, both in the civil context and the criminal context. From the average person perspective, we tend to use the terms interchangeably when you assault and/or batter somebody.

Robert Ingalls: Now, are there different levels of assault and battery?

Bill Powers: Mm-hmm (affirmative).

Robert Ingalls: So it's more than one? It can be different charges?

Bill Powers: There are not only different levels, there are different types, classifications of assaults, and that's true with many criminal type of cases in North Carolina. The big picture item is, is it a felony or is it a misdemeanor in state court? But there are also different types of assaults and different punishments, based on the type of the assault in South or North Carolina. For example, in North Carolina we may have a simple assault, we may have assault with deadly weapon, we may have an assault on a female, we may have a felony assault, and then we have what lawyers sometimes refer to as the alphabet assaults, which is "ADWIKSI" versus "ADWISI", and that's an acronym for assault with a deadly weapon inflicting serious injury, versus assault with deadly weapon, intent to kill, inflicting serious bodily injury. And so that's where you get the ADWIKSI and ADWISIs. As you go up in the level of severity of the injury, oftentimes the level of punishment goes up as well.

Robert Ingalls: Sure. When you say simple assault, what would constitute that?

Bill Powers: Well, in district courts, most of the assaults we see, and there is such a thing as a public affray, which is a fight, which is not ... It sort of is assault when you think about it. If people are fighting, they're hitting one another, but sometimes we see people, my generation used to say someone got in a tussle. But basically, it's an unlawful touching of the person of another with all kinds of little subcategorizations what a touching means. But most of the assaults we see in court, at least I see in court, relate to pretty kind of mundane circumstances. At a bar, someone's getting lippy, talking smack, some pushing ... assault can be a push. I've seen assaults with different types of weapons. We have assault with deadly weapon. Weapon doesn't have to be a gun or a knife. It could be a stick. It could be a rock.

Robert Ingalls: I'm assuming when you bring a weapon in, it probably makes it a more serious offense.

Bill Powers: Yeah, I mean, understandably so. And a lot of this, by the way, comes from this idea of a codification ... and I'm not referring to a fish ... of the common law in North Carolina. And by the way, North Carolina still has common law type of offenses, and sometimes there's an interplay between common law and statutory.

Robert Ingalls: For the lay listener, what is the difference between common law and statutory?

Bill Powers: Right. Great question. Well, we were one of the first 13 colonies, North Carolina, we had King George was our king, and the law that came over, I guess, with the Pilgrims was the law that was known by everyone. It was common. That's where the term comes from. And they were offenses, sometimes against the Crown or your co-citizens. And so there was this common law that everyone knew you couldn't do X, Y, and Z.

As we've developed over years, we've actually ... The French like doing this, Napoleon liked it more. I don't want to get too much into this, but they liked the codification of law, making codes and writing things down. So we tend to see in North Carolina, we're talking about assault and battery, "On this and this date, Bill Powers did knowingly and intentionally willfully assault and/or batter by," then there's some level of description, "punching someone in the nose, in violation of North Carolina General Statute Chapter ..." Whatever that may be.

So that may be the charged offense, but the way we address it in court and allege the elements of it, what we call prima facie elements, first facts of a case, are that you did unlawfully, intentionally, willfully assault and/or batter this person while in Mecklenburg County in North Carolina ... you know, make sure we have a territorial jurisdiction. So yeah, those are the basic elements every lawyer, that's kind of one of the first things you learn when you start practicing law or going to law school, actually, is what are the elements of the assault and what are the ... If I'm in a restaurant and I turn around, and I accidentally spill a glass of wine on you, is that an assault? Versus if I take a glass of wine and splash it in your face, is that an assault? Or if I take the glass and smash over your head, is that an assault?

Robert Ingalls: With a deadly weapon, perhaps, at that point.

Bill Powers: Sure, and maybe, if you cut someone's jugular, then you get assault with deadly weapon ...

Robert Ingalls: Inflicting serious injury.

Part 2 >>

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