any such gunpowder, or other explosive, dangerous, or noxious substance or thing, or any such machine, engine, instrument, or thing, is suspected to be made, kept, or carried for the purpose of being used in committing any of the felonies in this Act mentioned, upon reasonable cause assigned upon oath by any person, may issue a warrant under his hand and seal for searching in the day-time any house, mill, magazine, storehouse, warehouse, shop, cellar, yard, wharf, or other place, or any carriage, waggon, cart, ship, boat, or vessel, in which the same is suspected to be made, kept, or carried for such purpose as hereinbefore mentioned; and every person acting in the execution of any such warrant shall have, for seizing, removing to proper places, and detaining all such gunpowder, explosive, dangerous, or noxious substances, inachines, engines, instruments, or things, found upon such search, which he shall have good cause to suspect to be intended to be used in committing any such offence, and the barrels, packages, cases, and other receptacles in which the same shall be, the same powers and protections which are given to persons searching for unlawful quantities of gunpowder under the warrant of a justice by the Act passed in the Session holden in the 23 & 24 Vict. c. 139.'

See 38 Vict. c. 17, entitled an Act to amend the law with respect to manufacturing, keeping, selling, carrying, and importing gunpowder, nitro-glycerine, and other explosive substances.

By the 46 Vict. c. 3, s. 2, Any person who unlawfully and maliciously causes by any explosive substance an explosion of a nature likely to endanger life, or to cause serious injury to property, shall, whether any injury to person or property has been actually caused or not, be guilty of felony, and on conviction shall be liable to penal servitude for life, or for any less term (not less than three years) or to imprisonment with or without hard labour for a term not exceeding two years.'

6

By sec. 3,Any person who within or (being a subject of Her Majesty) without Her Majesty's dominions unlawfully and maliciously (a) Does any act with intent to cause by an explosive substance, or conspires to cause by an explosive substance, an explosion in the United Kingdom of a nature likely to endanger life or to cause serious injury to property, or,

(b) Makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life or cause serious injury to property in the United Kingdom, or to enable any other person by means thereof to endanger life or cause serious injury to property in the United Kingdom, shall, whether any explosion does or does not take place, and whether any injury to person or property has been actually caused or not, be guilty of felony, and on conviction shall be liable to penal servitude for a term not exceeding twenty years, or to imprisonment with or without hard labour for a term not exceeding two years, and the explosive substance shall be forfeited.'

By sec. 4, (1) Any person who makes or knowingly has in his possession or under his control any explosive substance under such circumstances as to give rise to a reasonable suspicion that he is not making it, or does not have it in his possession or under his control for a lawful object, shall, unless he can shew that he made it, or had it in his possession, or under his control for a lawful object, be guilty

of felony, and on conviction shall be liable to penal servitude for a term not exceeding fourteen years, or to imprisonment for a term not exceeding two years with or without hard labour, and the explosive substance shall be forfeited. (r)

(2) In any proceeding against any person for a crime under this section, such person and his wife or husband, as the case may be, may, if such person thinks fit, be called, sworn, examined, and crossexamined as an ordinary witness in the case.'

By sec. 5,Any person who within or (being a subject of Her Majesty) without Her Majesty's dominions by the supply of or solicitation for money, the providing of premises, the supply of materials, or in any manner whatsoever procures, counsels, aids, abets, or is accessory to the commission of any crime under this Act, shall be guilty of felony, and shall be liable to be tried and punished for that crime as if he had been guilty as a principal.'

Sec. 6 gives power to the Attorney-General, where he has reason to believe that a crime has been committed under the Act, to authorise any justice of the peace to hold an inquiry. The evidence taken at such inquiry is, however, not to be used against the witness giving such evidence except in case of perjury. Absconding witnesses may be arrested.

By sec. 7, (1) 'If any person is charged before a justice with any crime under this Act, no further proceeding shall be taken against such person without the consent of the Attorney-General, except such as the justice may think necessary by remand or otherwise to secure the safe custody of such person.

(2) In framing an indictment the same criminal act may be charged in different counts as constituting different crimes under this Act, and upon the trial of any such indictment the prosecutor shall not be put to his election as to the count on which he must proceed.

(3) For all purposes of and incidental to arrest, trial, and punishment, a crime for which a person is liable to be punished under this Act, when committed out of the United Kingdom, shall be deemed to have been committed in the place in which such person is apprehended or is in custody.

(4) This Act shall not exempt any person from any indictment or proceeding for a crime or offence which is punishable at common law or by any Act of Parliament other than this Act; but no person shall be punished twice for the same criminal act.'

Sec. 8 deals with the search for and seizure of explosive substances, and by sec. 9, The expression "explosive substance" shall be deemed to include any materials for making any explosive substance, also any apparatus, machine, implement, or materials used or intended to be used or adapted for causing or aiding in causing any explosion in or with any explosive substance, also any part of any such apparatus, machine, or implement.'

Any part of a vessel which, when filled with an explosive substance, is adapted for causing an explosion, is an explosive substance. (8)

(r) If several persons are connected in a common design to have an explosive substance made for an unlawful purpose, each of the confederacy is responsible in respect

of such articles as are in the possession of
others for the carrying out of their common
design. R. v. Charles, 17 Cox, C. C. 499.
(s) R. v. Charles, 17 Cox, C. C. 499.

CHAPTER THE TENTH.

OF COMMON AND AGGRAVATED ASSAULTS.

SEC I.

Of Common Assaults.1

AN assault is an attempt or offer, with force and violence, to do a corporal hurt to another; as by striking at another with a stick or other weapon, or without a weapon, though the party striking misses his aim. So drawing a sword or bayonet, or even holding up a fist in a menacing manner, throwing a bottle or glass with intent to wound or strike, presenting a gun at a person who is within the distance to which the gun will carry, pointing a pitchfork at a person who is within reach, or any other similar act, accompanied with such circumstances as denote at the time an intention, coupled with a present ability, of using actual violence against the person of another, will amount to an assault. (a)

But it appears to be now quite settled, though many ancient opinions were to the contrary, that no words whatsoever, be they ever so provoking, can amount to an assault. (b) And the words used at the time may so explain the intention of the party as to qualify his act, and prevent it from being deemed an assault; as where A. laid his hand upon his sword, and said, If it were not the assize-time, I would not take such language from you,' it was holden not to be an assault, on the ground that he did not design to do the other party any corporal hurt at that time, and that a man's intention must operate with his act in constituting an assault. (c)

It has been laid down, notwithstanding a contrary opinion in an earlier case, (d) that if a person present a pistol, purporting to be a

loaded pistol, so near as to produce danger to life if the pistol had gone off, it is an assault in point of law, although in fact the pistol be unloaded. The learned judge said, 'My idea is, that it is an assault to present a pistol at all, whether loaded or not. If you threw the powder out of the pan, or took the percussion cap off, and said to the party this is an empty pistol, then that would be no assault, for there the party must see that it was not possible that he should be injured; but if a person presents a pistol which has the appearance of being loaded, and puts the party into fear and alarm, that is what it is the object of the law to prevent.' (e)

However, where in an action for an assault and presenting a loaded pistol at the plaintiff, it appeared that the defendant cocked a pistol, and presented it at the plaintiff's head, and said if he was not quiet he would blow his brains out; but there was no evidence that the pistol was loaded; Lord Abinger, C. B., held, that if the pistol was not loaded it would be no assault. (f) And Tindal, C. J., has ruled in the same way. (g)

Pointing a loaded gun at half cock at a person is an assault; for there is a present ability of doing the act threatened, as the gun can be cocked in an instant. (h)

It is not every threat, where there is no actual personal violence, that constitutes an assault; there must, in all cases, be the means of carrying the threat into effect. If, therefore, a party be advancing in a threatening attitude, e. g., with his fist clenched, to strike another, so that his blow would almost immediately have reached such person, and be then stopped, it is an assault in law, if his intent were to strike such person, though he was not near enough at the time to have struck him. (¿)

Where the plaintiff was in the defendant's workshop and refused to leave it, and the defendant and his workmen surrounded him, and tucking up their sleeves and aprons, threatened to break his neck, if he did not go out, and fearing that the men would strike him if he did not do so, the plaintiff went out; it was held that this was an

(e) R. v. St. George, 9 C. & P. 483. Parke, B.

(f) Blake v. Barnard, 9 C. & P. 626. It seems that a very reasonable distinction might be made in cases of this kind. If a person presents a gun at another, knowing it not to be loaded, there can be no intent to injure in any event, and therefore he ought not to be criminally responsible; but if the person, at whom such an unloaded gun was presented, did anything in selfdefence, his justification, whether in a civil or criminal proceeding, ought to be just the same as if the gun were loaded; for the act of the party presenting the gun led to the

AMERICAN NOTE.

1 Mr. Bishop agrees with the doctrine in R. v. St. George, rather than with that of Blake v. Barnard and R. v. James, and it appears to the present editors that he gives very good reasons for his opinion. Bishop,

VOL. III. - 20

ii. s. 32. In several of the States, however, an assault has been defined by statute to be an unlawful attempt, coupled with a present ability."

66

assault; for there was a threat of violence exhibiting an intention to assault, and a present ability to carry the threat into execution. (j) The plaintiff was walking on a footpath by a road side, and the defendant, who was on horseback, rode after him at a quick pace; the plaintiff then ran away into his own garden, and the defendant rode up to the gate, and shook his whip at the plaintiff, who was about three yards off; it was held, that if the defendant rode after the plaintiff, so as to compel him to run into his garden for shelter to avoid being beaten, it was an assault. (k)

A battery is more than an attempt to do a corporal hurt to another; but any injury whatsoever, be it ever so small, being actually done to the person of a man, in an angry or revengeful, or rude or insolent manner, such as spitting in his face, or in any way touching him in anger, or violently jostling him out of the way, is a battery in the eye of the law. () For the law cannot draw the line between different degrees of violence, and, therefore, totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it in any the slightest manner. (m) It should be observed that every battery includes an assault. (n)

To cut a man's clothes whilst on his person is an assault, although there is no intention to inflict any bodily injury, and in the ordinary case of a blow on the back there is clearly an assault, though the blow is received by the coat on the person. (0)

Where a policeman was stationed at a door to prevent a person from entering, it was held that, if he was entirely passive, like a door or a wall put to prevent that person from entering the room, and simply obstructing the entrance of that person, no assault was committed. (p)

The injury need not be effected directly by the hand of the party.1 Thus there may be an assault by encouraging a dog to bite; by riding over a person with a horse; or by wilfully and violently driving a cart, &c., against the carriage of another person, and thereby causing bodily injury to the persons travelling in it. (9) And it seems that it is not necessary that the assault should be immediate; as where a defendant threw a lighted squib into a market place, which, being tossed from hand to hand by different persons, at last hit the plaintiff in the face, and put out his eye, it was adjudged that this was actionable as an assault and battery. (r) And the same has been holden where a person pushed a drunken man against another, and thereby hurt him; (8) but if such person intended doing a right act,

(j) Read v. Coker, 13 C. B. 850.

(k) Mortin v. Shoppee, 3 C. & P. 373, Lord Tenterden, C. J.

(1) Bac. Ab. tit. Assault and Battery' (B). 1 Hawk. P. C. c. 62, s. 2.

(m) 4 Blac. Com. 120.

(n) Termes de la ley, Battery,' 1 Hawk. P. C. c. 62, s. 1. Bac. Ab. tit. Assault and Battery' (A).

(0) R. v. Day, 1 Cox, C. C. 207, Parke, B.

(p) Innes v. Wylie, 1 C. & K. 257, Lord Denman, C. J.

(7) See the precedents for assaults of this kind, Cro. Circ. Comp. 82. 3 Chit. Crim. L. 823, 824, 825. 2 Starkie, 388, 389.

(r) Scott v. Shepherd, 2 Blac. Rep. 892, by three judges; Blackstone, J., contra; 3 Wils. 403, S. C.

(s) Short v. Lovejoy, cor. Lee, C. J. 1752. Bull. Ni. Pri. 16.

AMERICAN NOTE.

1 As to assault by administering a drug, R. 350. It is not an assault in England. see C. v. Stratton, 114 Mass. 303; 19 Am. R. v. Hanson, 2 C. & K. 912.