SECT. II. Of Child Stealing. 54 G. 3. c. 101. The statute 54 Geo. 3. c. 101. reciting that the practice of carrysubjects per- ing away young children, by forcible or fraudulent means, from sons taking their parents, or other persons having the care and charge or cusaway, &c. any child under 10 tody of them, commonly called child stealing, had of late much years old, or prevailed and increased, enacts, “ that if any person or persons receiving and harbouring as shall maliciously, either by force or fraud, lead, take or carry such child, to away, or decoy or entice away, any child under the age of ten the punish years, with intent to deprive its parent or parents, or any other ment of persons convicted person having the lawful care or charge of such child, of the of grand lar- “ possession of such child, by concealing and detaining such child ceny. “ from such parent or parents, or other person or persons having “ the lawful care or charge of it; or with intent to steal any article persons convicted of grand larceny." The second section of the statute provides, “ that nothing in S. 2. The act is not to ex- this act shall extend, or be construed to extend, to any person 66 who shall have claimed to be the father of an illegitimate child, fathers of illegitimate child or to have any right or title in law to the possession of such “ child, on account of his getting possession of such child, or “ taking such child out of the possession of the mother thereof, « or other person or persons having the lawful charge thereof." S. 3. Act not It is also provided by the third section, that the act shall not extend to Scotland. Scotland, of en ас an m be tend to the a ре 81 a1 is tH 0 to extend to CHAPTER THE TENTH. OF ATTEMPTS TO MURDER; OF MAYHEM, OR MAIMING ; AND OF DOING OR ATTEMPTING SOME GREAT BODILY HARM. ATTEMPTS to commit murder appear to have been considered as Offences at felonies in the earlier ages of our law: but that doctrine did not common law. long prevail; and such attempts became, and still remain, at common law, punishable only as high misdemeanors.(a) Where an indictment is preferred for an assault with intent to murder, it seems that the intent as laid must be fully established, in order to support the indictment: thus, where a defendant was so charged in the first count of the indictment, Lord Kenyon, C. J., being of opinion, upon the facts given in evidence, that if death had ensued it would only have been manslaughter, directed the jury to acquit the defendant upon that count.(b) Mayhem, or the maiming of persons, was probably at one time an offence at common law, of the degree of felony; as the judgment was membrum pro membro. (c) But this judgment afterwards went out of use; partly because the law of retaliation is at best an inadequate rule of punishment; and partly because, upon a repetition of the offence, the punishment could not be repeated. (d) The offence, therefore, appears to have been considered, in later times, as in the nature of an aggravated trespass; and the only judgment which now remains for it at common law is fine and imprisonment.(e) It is, however, a misdemeanor of the highest kind, and spoken of by Lord Coke as the greatest offence under felony.(f) (a) Staund. 17. East. P. C. c. 8. (6) Rex v. Mitton, Adjourned Sits. 5. p. 411. Rex v. Bacon, 1 Lev. tings at Westminster, Oct. 1788. 1 146. 1 Sid. 230. where the defendant, East. P. C. c. 8. s. 5. p. 411. having been convicted for lying in (c) 3 Inst. 118. i Hawk. P. C. c. 55. wait to kill Sir Harbottle Grimstone, S. 3. 4 Blac. Com. 206, the Master of the Rolis, was sen- (d) 4 Blac. Com. 206. tenced by fine and imprisonment, the (e) Id. ibid. i Hawk. P. C. c. 55. s. 3. finding surety for his good behaviour 1 East. P.C. c. 7. s. 1. p. 393. But it for life, and acknowledging his of- is observed, that perhaps inayhem by fence at the bar of the Court of Chan- castration might have continued an cery. And see two precedents of in- offence of higher degree, as all our dictments at common law, for misde- old writers held it to be felong. 4 meanors in attempting to murder by Blac. Com. 206. poison, 3 Chit. Crim. L. 796. (f) Co. Lit. 127 a. A person A bodily hurt whereby a man is rendered less able, in fighting, to defend himself or to annoy his adversary, is properly a maim at common law. (8) Therefore the cutting off, or disabling, or weakening a man's hand or finger, or striking out his eye or foretooth, or depriving him of those parts, the loss of which, in all animals, abates their courage, are held to be maims : but the cutting off his ear, or nose, or the like, are not held to be maims at common law; because they do not weaken a man, but only disfigure him.(h) In order to found an indictment of mayhem the act must be done maliciously, though it matters not how sudden the occasion.() It is laid down that, by the common law, if a person maim maiming bim- himself in order to have a more specious pretence for asking chaself may be punished. rity, or to prevent his being impressed as a sailor, or enlisted as a soldier, he may be indicted ; and, on conviction, fined and imprisoned.(k) For as the life and members of every subject are under the safeguard and protection of the King ; so they are said to be in manu regis, to the end that they may serve the King and country when occasion shall require.(l) No accessories It should seem that there can be no accessories before the fact in mayhem. in mayhem, at common law; though there appears to have been some difference of opinion, or rather misapprehension, upon the subject.(m) For, supposing the offence to be in the nature of an aggravated trespass only, the rule will apply, that in crimes under the degree of felony there can be no accessories, but that all persons concerned therein, if guilty at all, are principals.(n) It does not appear to have been any where supposed, that there can be accessories after the fact in mayhem.(o) Offences by Attempts to murder, maiming, and the doing or attempting statutes. great bodily harm, have been made highly penal by the enactments of several statutes, which may be mentioned in the order of time in which they were passed. 5 Hon. 4. c. 5. The statute 5 Hen. 4. c. 5. reciting that offenders did daily Cutting beat, wound, imprison, and maim divers of the King's liege tongues, or people, and after purposely cut their tongues, or put out their putting out eyes, enacts, “that in such case the offenders that so cut tongues, felocy. (g) Staund. P. C. 3. Co. Lit. 126. “ dicted, fined, and ransomed." 3 Inst. 62, 118. 1 Hawk. P. C. c. 55. (1) Co. Lit. 127 a. Bract. lib. I. s. 1. 4 Blac. Com. 205. • 1 East. P. C. fol. 6. Pasch. 19 Ed. 1. cor. Reg. c. 7. s. 1. p. 393. Rot. 36. Northt. (h) I Hawk. P. C. c. 55. s. 2. 4 (m) Lord Hale states, that there are Blac. Com. 205, 206. | East. P. C. no accessories before in mayhem, but c. 7. s. 1. p. 393. 4 Bac. Ab. Maihem that they are in the same degree as (A.) principals, 1 Hale 613. Hawkins, on (©) i East. P. C. c. 7. s. 1. p. 393. the contrary, says, that it seems there (h) 1 Hawk. P. C. c. 55. S. 4. and may be accessories before the fact in Co. Lit. 127 a. where Lord Coke says, mayhem. 2 Hawk. P. C. c. 29. s. 5. “In my circuit, ànno 1 Jacobi regis, In i East. P. C. c. 7. s. 7. p. 401, there “ in the county of Leicester, one is a learned argument, to shew that Wright, a young, strong, and lustie the latter opinion proceeded on a mis- (n) Ante, 31. pulting himself to any labour, caused ? Hawk. P. C. c. 29. s. 5. 1 East. “ his companion to strike off his left P. C. c. 7. s. 7. p. 401, “ hand; and both of them were in eyes, made or put out the eyes of any the King's liege people, and that duly proved and found that such deed was done of malice pre“pensed, they shall incur the pain of felony.” The words “ of “ malice prepensed,” are explained to mean voluntarily and of set purpose, however sudden the occasion.(p) This statute was intended to put a stop to a cruel practice of cutting the tongues, or putting out the eyes of persons beaten, wounded, or robbed, in order to prevent them from giving evidence against the offenders; and it appears to have had the desired effect.(9) Next in order of time is the statute 37 Hen. 8. c. 6. the fourth 37 Hen. 8.c.6. section of which, amongst other provisions, enacts, that “if any ting off ears person or persons maliciously, willingly, or unlawfully cut or are to forfeit cause to be cut off the ear or ears of any of the King's sub- treble da“jects, otherwise than by authority of the law, chance medley, mages, and pay a fine of “sudden affray or adventure,” every such offender shall not only 10%. forfeit to the party grieved treble damages, to be recovered by action of trespass, but shall also forfeit to the King for every such offence 101. in the name of a fine. . A more severe and effectual statute, 22 and 23 Car. 2. c. 1. 22 & 23 Car. 2. was afterwards passed, upon the subject of malicious maiming. C.1; (Coventry It is usually called the Coventry act; having been occasioned by cious maiming a violent attack upon Sir John Coventry in the street, and slit- made felony ting his nose, in revenge, (as was supposed) for some obnoxious without bene fit of clergy. words uttered by him in parliament.(r) The seventh section enacts, “ that if any person or persons, on purpose and of malice “ forethought, and by lying in wait, shall unlawfully cut out or “ disable the tongue, put out an eye, slit the nose, cut off a nose or lip, or cut off or disable any limb or member of any subject “ of his majesty, with intention, in so doing, to maim or dis “ figure, in any the manners before mentioned, such his majesty's .“ subject; that then and in every such case, the person or per “sons so offending, their counsellors, aiders, and abettors, (know“ ing of and privy to the offence as aforesaid) shall be and are “ hereby declared to be felons, and shall suffer death, as in cases 6 of felony, without benefit of clergy.” But by the subsequent section, no attainder of such felony is to extend to corrupt the blood, or forfeit the dower of the wife, or the lands, goods, or chattels of the offender. Several points have been holden upon the construction of this Construction statute, which may be considered, as they relate, 1. to the pur- of the statute 22 & 23 Car. 2. “ pose and malice forethought;" 2. to the lying in wait; 3. to the kind of maiming or disfiguring; and, 4. to the intention to maim or disfigure. It is not thought necessary to state them much in detail, as offences against this act appear to be included (p) 3 Inst. 62. And as to the mean- “ be done, before those which punish ing of the word malice, see anle, 422, “them after they be done. And thereet sequ. “ fore, in the making of this law, (q) 3 Inst. 62. where the learned “ there was salutaris severitas et beata writer states, that this law did so ter- “ securitas," rify offenders, that there appeared to (r) 4 Blac. Com, 207. And see for have been hardly any prosecutions for the history of this transaction, Burnet the offence: and he observes, “ Of all Hist., Vol. I. p. 269. fol. and 7 Hume's “ statutes those are to be preferred, Hist. 468, 469. “ which prevent offences, before they c. I. in the more general provisions of a recent statute, 43 G. 3. c. 56. which will be presently mentioned. As to the pur With respect to the“ purpose and malice forethought,” it may pose and ma be observed, that it must be substantiated by proving a deliberate lice forethought. and premeditated design to do a personal injury to another, of the sort described in the statute.(s) It does not, however, seem necessary, that the malicious intention should be directed against any particular individual: for if it be conceived against all persons who may happen to fall within the scope of the perpetrator's design, the particular mischief done to any one will be connected with the general malignant intent, so as for the statute to attach upon the offenders.(t) And it seems clear that, if a man striking another, with such an evil intent as would make him guilty of mayhem if the person struck at should be maimed, happen to miss that person and strike a third person, and maim him, he will be equally guilty.(u) As to the ly- In order to satisfy the words “ lying in wait,” it seems that ing in wait. there must be some deliberate watching for an opportunity to effect the evil purpose. But it is not necessary that the party should place himself in any particular concealment, and then rush out of his lurking place to do the mischief. If, after having formed the intention, he takes a convenient opportunity of doing the premeditated deed, and does it with deliberation, it is a lying in wait; though he do not take any particular length of time, or use any extraordinary degree of preparation.(w) Thus, where the prisoner with many other persons, supposed to be a gang of thieves, beset the prosecutor as he was passing along the street with his master's cart loaded with sugar, and after he had received several severe wounds from some of them, and there had been repeated exclamations by several of them of “Damn you, where knives ?” the prisoner made a stroke at him with a large knife, and gave him a dreadful wound on the face, but it appeared that the cart was not robbed, and the prosecutor said, that he could suppose no other cause for this cruel treatment, than that it was intended by way of revenge against him, for having detected and beat off some thieves who had made an attempt to rob the cart, near the same place, on the preceding evening, the case was left to the jury upon the question of lying in wait. And the learned Judge desired them to consider whether the fact were deliberately and intentionally done by lying in wait for that purpose, on the account suggested, or from any other malicious and deliberate motive; or whether it were a sudden violent impulse of rage, not in the previous contemplation of the parties ; in which latter case, it was not within the statute : but he laid stress on the expression uttered by some of the gang—“ Where are your “ knives ?” as explanatory of a previous design to do such a mischief.(x) In another case, where a gentleman, having de 66 are your (s) 1 East. P. C. c. 7. s. 3. p. 394. (u) 2 Hawk. P. C. c. 23. s. 16. and citing 1 MS. Sum. 122. And see as to see ante, 453, et sequ. malice aforethought, ante, 422, (w) By Eyre, B. in Rex v. Mills, I (1) i East. P. Č. c. 7. s. 4. p. 396. Leach 259. Rex v. Carrol and King, post. 589. (x) Rex v. Mills, I East. P. C. c. 7. et seq. s. 5. 1 Lcach 259. |
