An assault is defined: “An attempt or offer to beat another, without touching him; as if one lifts up his cane or his fist in a threatening manner at another; or strikes at him, but misses him.” 3 Black. Comm., 120; 3 Steph. Comm., 469; S. v. Williams, 186 N. C., 627.
Battery: “Any unlawful beating, or other wrongful physical violence or constraint, inflicted on a human being without his consent.” 2 Bish. Crim. Law, sec. 71. The actual offer to use force to the injury of another person is assault; the use of it is battery; hence the two terms are commonly combined in the term “assault and battery.”
C. S., 404: “An action is commenced as to each defendant when the summons is issued against him.”
C. S., 407: “Disabilities — A person entitled to commence an action, except for a penalty or forfeiture, or against a sheriff or other officer for an escape, who is at the time the cause of action accrued, either (1) within the age of twenty-one years; or (2) insane, etc. May bring his action within the times herein limited, after the disability is removed,” etc.
C. S., 443: “Within one year an action — (3) For libel, assault, battery, or false imprisonment.”
This action was brought for assault and battery a year after the occurrence. Defendant pleaded (1) justification — self-defense (2) one^year statute of limitations. Plaintiff replied and set up.insanity to repel the one-year statute of limitations. Perhaps no more simple action than that for assault and battery can be brought in the courts and tried than the present one. As to the charge on the question of insanity, taking the contentions on this aspect, with the charge, we think it sufficient, and if more particularity was desired by defendant, a prayer for instruction should have been requested.
*296The record is long, as the contest was one primarily of fact, and the battle was waged and fought out before the jury mainly upon the questions of fact. On the record the jury could have decided either way, but decided all the facts in the plaintiff’s favor. This is for them and not us. After hearing the arguments, and examining the records and briefs, we find on the whole record no prejudicial or reversible error.
In re Ross, 182 N. C., at p. 478, citing numerous authorities, we find the well settled rule in this jurisdiction, as follows: “It is now the settled rule of appellate courts that verdicts and judgments will not be set aside for harmless error, or for mere error and no more. To accomplish this result, it must be made to appear not only that the ruling complained of was erroneous, but that it was material and prejudicial, amounting to a denial of some substantial right. Our system of appeals, providing for a review of the trial court on the questions of law, is founded upon sound public policy and appellate courts will not encourage litigation by reversing judgments for slight error, or for stated objections, which could not have prejudiced the rights of appellant in any material way. . . . Again, error will not be presumed; it must be affirmatively established. The appellant is required to show error, and he must make it apjiear plainly, as the presumption is against him.” In re Will of Efird, 195 N. C., p. 91-2.
“Even so the tongue is a little member, and boasteth great things. Behold, how great a matter a little fire kindleth.” James 3: 5.
In the judgment of the court below, in law we find
No error.