harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof shall be liable,' as in sec. 11. (rr) Sec. 19. Any gun, pistol, or other arms which shall be loaded in the barrel with gunpowder or any other explosive substance, and ball, shot, slug, or other destructive material, shall be deemed to be loaded arms within the meaning of this Act, although the attempt to discharge the same may fail from want of proper priming or from any other cause.' (8) 6 Sec. 20. Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanor, and being convicted thereof shall be liable [at the discretion of the Court] (ss) to be kept in penal servitude [for the term of three years-or to be imprisoned for any term not exceeding two years, with or without hard labour].' (t) Sec. 23. Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony, and being (rr) This clause is taken from the 7 Will. 4 and 1 Vict. c. 85, s. 4. The words in italics at the beginning of this section were introduced to make it correspond with sec. 11, ante, p. 279. As to the word 'wound' see the note to that section. The word 'any' is substituted in two places for 'such,' in order to provide for cases where the prisoner wounds, &c., A., when he intends to wound B., and the like. (s) This clause is new, and is introduced to meet every case where a prisoner attempts to discharge a gun, &c., loaded in the barrel, but which misses fire for want of priming, or of a copper cap, or from any like cause. See (ss) The words in brackets are repealed, but the punishment remains the same. ante, p. 204, note (g). (t) This clause is taken from the 14 & 15 Viet. c. 19, s. 4; and see the 10 Geo. 4, c. 34, s. 29 (I). The word 'wound' has been so placed in this clause that the words either with or without any weapon or instrument,' may apply to it. Under the 20th section of the 24 & 25 Vict. c. 100, it is a misdemeanor to unlawfully and maliciously wound any person. By 14 & 15 Vict. c. 19, s. 5, upon the trial of any indictment for felony, where the indictment shall allege that the prisoner wounded any person, if the jury are satisfied that the defendant is guilty of wounding, but are not satisfied that the defendant is guilty of the felony charged, the jury may acquit him of the felony and find him guilty of unlawful wounding, and he may thereupon be punished as if he had been convicted of the misdemeanor of unlawful wounding. The prisoner was indicted for unlawfully and maliciously wounding, with intent to do grievous bodily harm. The prosecutor was using a punt in a creek of a river for the purpose of shooting wild fowl, lying with his face downwards in the punt, and paddling it with his arms over the sides. When slewing the punt round to return home, he suddenly heard the report of a gun, and found himself shot and wounded seriously. The prisoner had fired the shot in the direction of the punt with the intention of frightening the prosecutor from again coming into the creek for the purpose of fowling, and not with the intention of doing him grievous bodily harm. The prisoner at the time and afterwards asserted that if the prosecutor had not slewed the punt round at the moment of his shooting, the shot would not have struck him. The jury found the prisoner guilty of unlawful wounding, under 14 & 15 Vict. c. 19, s. 5. Held, that the 5th section of the 14 & 15 Vict. c. 19, must be construed as if the word malicious were applied to wounding; and that there was evidence on the above facts of a malicious wounding by the prisoner, and the conviction was right. R. v. Ward, 41 L. J. M. C. 69. L. R. 1 C. C. R. 356. The prisoner, with the intention of causing terror in the minds of persons leaving a theatre, put out the gaslights on the staircase, and also, with the intention of obstructing the exit, placed an iron bar across the doorway. A panic ensued, and the audience rushed down the staircase against the iron bar. Several of them were injured. The prisoner was indicted under 24 & 25 Vict. c. 100, s. 20, and it was held that he could be rightly convicted of unlawfully and maliciously inflicting grievous bodily harm upon two of the audience named in the indictment. R. v. Martin, 8 Q. B. D. 54. convicted thereof shall be liable [at the discretion of the Court] (tt) to be kept in penal servitude for any term not exceeding ten years [and not less than three years or to be imprisoned for any term not exceeding two years, with or without hard labour].' (u) Sec. 24. Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve, or annoy such person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable,' as in sec. 20. (v) Sec. 25. If upon the trial of any person for any felony in the last but one preceding section mentioned, the jury shall not be satisfied that such person is guilty thereof, but shall be satisfied that he is guilty of any misdemeanor in the last preceding section mentioned, then and in every such case the jury may acquit the accused of such felony, and find him guilty of such misdemeanor, and thereupon he shall be liable to be punished in the same manner as if convicted upon an indictment for such misdemeanor.' Mr. Starkie, in his excellent work on evidence, (w) makes the following observations: Upon an indictment for shooting or cutting another, with intent to murder or maim him, or to do him some grievous bodily harm, whether the act was done by the prisoner, with the particular intention wherewith it is charged to have been done, is, as in other cases of specific malice and intention, a question for the jury. Their inference upon this important point, as in other cases of malicious intention, must be founded upon a consideration of the situation of the parties, the conduct and declarations of the prisoner, and, above all, on the nature and extent of the violence and injurious means he has employed to effect his object. In estimating the prisoner's real intention, it is obviously of importance to consider the quantity and quality of the poison which he administered, the nature of the instrument used, and the part of the body on which the wound was inflicted, according to the plain and fundamental rule, that a man's motives and intentions are to be inferred from the means which he uses and the acts which he does. If, with a deadly weapon, he deliberately inflicts a wound upon a vital part, where such a wound would be likely to prove fatal, a strong inference results, that his mind and intention were to destroy. It is not, however, essential to the drawing of such an inference, that the wound should have been inflicted on a part where it was likely to prove (tt) The words in brackets are repealed, but the punishment remains the same. See ante, p. 204, note (g). (u) This clause is taken from the 23 & 24 Vict. c. 8, s. 1. (v) This clause is taken from the 23 & 24 Vict. c. 8, s. 2. Upon an indictment on the 23 & 24 Vict. c. 8, s. 2, for administering cantharides to a female, with intent to injure, aggrieve, and annoy her, it appeared that the prisoner, unknown to the prosecutrix, put cantharides into a cup of tea which she drank, and was very ill in consequence, and the jury found that the prisoner administered the cantharides with intent to excite the sexual passion and desire of the prosecutrix, in order that he might obtain connection with her, and on a case reserved, after a verdict of guilty, on the question whether the intent above stated was an intent to injure, aggrieve, or annoy within the statute, the conviction was affirmed. R. v. Wilkins, 1 L. & C. 89. But where cantharides was administered in such a small quantity as to be incapable of doing any mischief, although administered with the intent to cause inconvenience and annoyance, Cockburn, C. J., after consulting Hawkins, J., held that this was no 'administering of a noxious thing' within the section. R. v. Hennah, 13 Cox, C. C. 547. (w) 2 Vol 691 et seq. mortal; such a circumstance is merely a simple and natural indication of intention, and a prisoner may be found guilty of a cutting with an intention within the statute, although the wound was inflicted on a part where it could not have proved mortal, provided the criminal intention can be clearly inferred from other circumstances.' (x) The cutting must be expressly laid with the intent stated in the Act as it has been holden that an indictment for cutting with intent. to do some grievous bodily harm, without saying, 'in so doing,' or, by means thereof,' was not sufficient. (y) 6 Principals aiding, etc.1 If several are out for the purpose of committing a felony, and upon an alarm run different ways, and one of them maim a pursuer to avoid being taken, the others are not to be considered principals in such act. (2) But where a party is present, aiding, &c., it is not necessary that his should be the hand by which the mischief is inflicted. (a) It was suggested, that where an ineffectual exchange of shots took place in a deliberate duel, both the parties might have been guilty of the offence of maliciously shooting within the 43 Geo. 3, c. 58. (b) By the 14 & 15 Vict. c. 19, s. 5, 'If upon the trial of any indictment for any felony, except murder or manslaughter, where the indictment shall allege that the defendant did cut, stab, or wound any person, the jury shall be satisfied that the defendant is guilty of the cutting, stabbing, or wounding, but are not satisfied that the defendant is guilty of the felony charged in such indictment, then and in every such case the jury may acquit the defendant of such felony, and find him guilty of unlawfully (e) cutting, stabbing, or wounding, and thereupon the defendant shall be liable to be punished in the same manner as if he had been convicted upon an indictment for the misdemeanor of cutting, stabbing, or wounding.' And upon an indictment for any offence mentioned in this chapter, the jury, under the 14 & 15 Vict. c. 100, s. 9, may convict of an attempt to commit such offence, and thereupon the prisoner may be punished as if he had been convicted on an indictment for such attempt. Some decisions on repealed statutes will be found in the Appendix at the end of this volume. (x) R. v. Case, York. Sum. Ass. 1820. 2 Stark. Ev. 692, note (h), cor. Park, J., who said that it had been so held by the judges. It is obvious that a case may fall both within the letter and the spirit of the statute, although from accident or from ignorance the prisoner has not succeeded in reaching a vital part. Note by Mr. Starkie. (y) Anon. cor. Dallas, C. J., and Burton, J., at Chester, 5 Evans' Col. Stat. Pt. v. Cl. iv. p. 334, note (3). (2) R. v. White, MSS. Bayley, J., and R. & R. 99. (a) R. v. Towle, R. & R. 314. S. C. 2 Marsh. 466. And see vol. i. p. 162. (b) 3 Chit. Crim. L. 848, note (w). It seems that the shooting or attempting to shoot in all cases of duels is now punishable under 24 & 25 Vict. c. 100, s. 18, ante, p. 281. See R. v. Douglas, C. & M. 193. (c) See R. v. Ward, ante, p. 282. The section only applies where the indictment alleges a felonious cutting, stabbing, or wounding, and therefore where the indictment charged a felonious shooting with intent, it was held that the section did not apply. R. v. Miller, 14 Cox, C. C. 356. AMERICAN NOTE. 1 It seems to have been held in some American cases, see Bishop, i. s. 365, that where two persons join in an assault and one commits mayhem, the other is not guilty of mayhem unless he also intended to commit it; but the learned author disapproves of this statement of the law. SEC. III. Of attempting to Choke, and using Drugs in order to commit Offences. By the 24 & 25 Vict. c. 100, s. 21, 'Whosoever shall, by any means whatsoever, attempt to choke, suffocate, or strangle any other person, or shall, by any means calculated to choke, suffocate, or strangle, attempt to render any other person insensible, unconscious, or incapable of resistance, with intent in any of such cases thereby to enable himself or any other person to commit, or with intent in any of such cases thereby to assist any other person in committing any indictable offence, shall be guilty of felony, and being convicted thereof shall be liable [at the discretion of the Court] (e) to be kept in penal servitude for life, [or for any term not less than three years -or to be imprisoned for any term not exceeding two years, with or without hard labour].' The 26 & 27 Vict. c. 44 recites the 24 & 25 Vict. c. 96, s. 43, and the preceding clause, and enacts, that Where any person is convicted of a crime under either of the said sections, the Court before whom he is convicted may, in addition to the punishment awarded by the said sections or any part thereof, direct that the offender, if a male, be once, twice, or thrice privately whipped, subject to the following provisions : 1. That in the case of an offender whose age does not exceed sixteen years, the number of strokes at each such whipping do not exceed twenty-five, and the instrument used shall be a birch rod : 2. That in the case of any other male offender the number of strokes do not exceed fifty at each such whipping: 3. That in each case the Court in its sentence shall specify the number of strokes to be inflicted and the instrument to be used: Provided that in no case shall such whipping take place after the expiration of six months from the passing of the sentence; provided also, that every such whipping to be inflicted on any person sentenced to penal servitude shall be inflicted on him before he shall be removed to a convict prison with a view of his undergoing his sentence of penal servitude.' 6 By the 24 & 25 Vict. c. 100, s. 22, Whosoever shall unlawfully apply or administer to or cause to be taken by, or attempt to apply or administer to or attempt to cause to be administered to or taken by any person, any chloroform, laudanum, or other stupefying or overpowering drug, matter, or thing, with intent in any of such cases thereby to enable himself or any other person to commit, or with intent in any of such cases thereby to assist any other person in committing, any indictable offence, shall be guilty of felony, and being convicted thereof shall be liable [at the discretion of the Court] (e) to be kept in penal servitude for life [or for any other term not less than three years or to be imprisoned for any term not exceeding two years, with or without hard labour].' (ƒ) See (e) The words in brackets are repealed, but the punishment remains the same. ante, p. 204, note (g). (f) This clause is taken from the 14 & 15 Vict. c. 19, s. 3. The words in italics in the beginning of this clause were introduced for SEC. IV. Of Ill-treating Apprentices and Servants, and of Cruelty to Children, Lunatics, and others. 6 By the 24 & 25 Vict. c. 100, s. 26, Whosoever, being legally liable, either as a master or mistress, to provide for any apprentice or servant necessary food, clothing, or lodging, shall wilfully and without lawful excuse refuse or neglect to provide the same, or shall unlawfully and maliciously do or cause to be done any bodily harm to any such apprentice or servant, so that the life of such apprentice or servant shall be endangered, or the health of such apprentice or servant shall have been or shall be likely to be permanently injured, shall be guilty of a misdemeanor, and being convicted thereof shall be liable [at the discretion of the Court] to be kept in penal servitude [for the term of three years or to be imprisoned for any term not exceeding two years, with or without hard labour].' (g) As to guardians and overseers being required to prosecute in certain cases under this Act, see sec. 73, noticed Vol. I. p. 93. Sec. 27. Whosoever shall unlawfully abandon or expose (h) any child, being under the age of two years, whereby the life of such child shall be endangered, or the health of such child shall have been or shall be likely to be permanently injured, shall be guilty of a misdemeanor, and being convicted thereof shall be liable,' as in sec. 26. (i) The prisoners were convicted on an indictment which charged that they did abandon and expose a child, under the age of two years, whereby the life of the child was endangered. The indictment was framed on the 24 & 25 Vict. c. 100, s. 27. One of the prisoners was the mother of the child, which was illegitimate, and both the prisoners put the child in a hamper at S., wrapped up in a shawl, and packed with shavings and cotton-wool, and the mother took the hamper to the booking-office of the railway station at M., and left it, having paid the carriage of it to G. The hamper was addressed to the lodgings of the father of the child at G. She told the clerk at the office to be very careful of it, and to send it by the next train, which was due in ten minutes from that time. Upon the address were the words written, With care; to be delivered immediately.' The hamper was carried by the passenger train, and was delivered at its address in a little less than an hour from leaving M. On its being opened the child was found alive. The child was taken by the relieving officer the same evening to the union workhouse, where it lived for three weeks afterwards, when it died from causes not attributa 6 R. v. doned or exposed under such circumstances |