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tected a boy in picking his pocket, had seized him, and was carrying him along the street, and the prisoner, who was lurking thereabouts, came up to them, and af er walking for some little time, sometimes before and sometimes after them, at last struck the gentleman a severe blow across the face with a knife, saying, “ Damn you, Sir, let the boy go;" the two Judges who inclined most to a strict construction of the words “ lying in wait,” &c. yet were of opinion that the circumstance of the prisoner passing before the gentleman, and waiting till he came up, and then giving him the wound, was a lying in wait within the statute. (y)

But if the mischief be done in a sudden attack, without any premeditated design against the person, there will not be a lying in wait within the statute. Thus, where the prisoner was stealing turnips in a field, and, being found by the servant of the owner of the field in the very act of taking them, struck the servant immediately, with a sharp instrument, and slit his nose; it was holden that this was not an offence within the statute: all the Judges holding that there was not sufficient evidence of a lying in wait; and some of them considering that the having the instrument, and using it, was with intent to escape, and not to murder or maim.() And the lying in wait must be with the view, and for the purpose, described in the statute. Thus, where the commander of a press-gang maimed a man, whom he casually inet, and who resisted being pressed, and against whom it appeared that he had an old grudge; though the jury found that the wounding was of malice aforethought, yet the Judges, upon a reference to them, were of opinion that there was no lying in wait, so as to bring the offence within the intent and purview of the statute.(a)

The maiming or disfiguring must also be of such a nature as As to the the statute describes. Thus, where a husband, who had lived a

kind of maimlong while separate from his wife, visited her again, and, having guring.

ing or disfipersuaded her to let him sleep with her, took an opportunity, during the night, and while she was asleep, to make a wound across her throat, about three inches in length, with a razor, which he had procured, and concealed for the purpose; it was ruled that the offence was not complete, there not being such a maim as the act requires.(b) But it has been decided that a large transverse wound across the nose, so wide and deep as to render the bone visible, is a slitting of the nose, within the statute, although the nostril be not thereby perforated.(c) And in another case, where there was a deep cut across the nose, which separated the flesh, and went quite through into the nostril, an objection

(y) Rex v. Carrol and King, 1 East. (6) Rex v. Lee, Old Bailey 1763, P.C. c. 7. s. 3. p. 394, 395. and id. cor. Parker, C. B. 1 Hawk. P.C. c. s 5. p. 397. citing MS. Gould, J. 55. s. 10. The same case is reported

(2) Rex v. Tickner, reserved for the in I Leach 51. But the grounds on opinion of the twelve Judges, from which the court ruled that the offence the Old Bailey Sess. 1778. I Hawk. was not within the statute are not P. C. c. 55. S. 12. | Leach 187. I there stated. East. P.C. c. 17. s. 6. p. 398.

(c) Rex v. Carrol and King, 1 Leach (a) Rex v. Mackey and Arrigoni, 55. 1 East. P. C. c. 7. s. 3. p. 394, Kingston Spr. Ass. 1778. | East. P. C. 395. c. 7. s. 6. p. 399.

maim or dis

ment.

that the nose could not be said to be slit because the edge of it

was not cut through, was overruled.(d) As to the in- The words in the statute are “ with intention in so doing to tention to

“ maim or disfigure :” but these words have been considered as figure.

merely auxiliary to the preceding words, “on purpose and of “ malice aforethought,” confining the crime to an intended violence.(e) So that it has been ruled, that if a man attack another, of malice aforethought, in order to murder him with a bill, or any other such like instrument, which cannot but endanger the maiming him, and in such attack happen not to kill, but only to main him, he

may

be indicted on this statute: and that it shall, in such case, be left to the jury, upon the evidence, whether there was a design to murder by maiming, and, consequently, a malicious intent to maim as well as to kill; in which case the offence is

within the statute, though the primary intention was murder.(f) Of aiders and This statute of 22 & 23 Car. 2. expressly extends to counselabettors.

lors, aiders, and abettors, knowing of and privy to the offence: it includes, therefore, all accessories before. But in a case where it appeared that one of the prisoners, though present at the fact, and guilty of a trespass and assault, was nevertheless altogether ignorant of any intention to maim or disfigure, the court directed that he should be acquitted in the first instance, before the guilt

or innocence of the perpetrator was ascertained. (g) Of the indicta An indictment upon this statute must pursue the words of it,

and allege the offence to have been committed“ on purpose, of “ malice aforethought, and by lying in wait ;” and state that the act was done with the intent mentioned in the statute.

But as the words of the statute are in the disjunctive, an averment either that the act was done with intent to maim, or with intent to dis

figure, according to the subject matter, seems to be sufficient. (h) 9 Anne, c. 16. The next statute in the order of time is the 9 Anne, c. 16, Attempting to which was passed for the more especial protection of privy counkill, assaulting, &c. &

sellors in the execution of their office; and was made on the occaprivy counsel- sion of Mr. Secretary Harley being stabbed by Anthony de Guislor, felony

card, who was at the time under examination before the privy without clergy.

council. It enacts, “ that if any person or persons shall unlaw

fully attempt to kill, or shall unlawfully assault, and strike, or “ wound any person being one of the most honourable privy coun“cil, when in the execution of his office of a privy counsellor, “in council, or in any committee of council, that then the person

or persons so offending, being thereof convicted in due form of “ law,” shall be felons, and suffer death without benefit of clergy.

The statute 9 G. 1. c. 22. relates to the offence of wilfully and Maliciously shooting at

(d) Rex v. Coke and Woodburn, 6 the Judges on another case (Carrol's, St. Tr. 212, et sequ.

ante, note (c)) Willes, J. and Eyre, B. . (e) 1 East. P. C. c. 7. s. 6. p. 399, expressed some dissatisfaction with 400.

this case; and thought at least that (f) Rex v. Coke and Woodburn, the construction ought not to be carante, note (d), 1 Hawk. P. C. c. 55. ried further. S. 8. 4 Bac, Ab. Maihem (B). 4 Blac. (g) Rex v. Mackey and Arrigoni, I Com. 206. note (k). 1 East. P.C. East. P. C. c. 7. s. 6. p. 399. and s. 7. c. 7. s. 6. p. 400. in which last book p. 401. it is said, that on the conference of (h) 1 East. P. C. c. 7. s. 8. p. 402.°

9 G. 1. c. 22.

maliciously shooting at any person in any dwelling-house, or other any person, feplace; an offence of which the probable consequence may be dony without

clergy either the killing or maiming such person. It enacts, that if aný person or persons “ shall wilfully and maliciously shoot at any person in

any dwelling-house, or other place:” or shall by gift, or promise of money, or other reward, procure any subject to join him or them, in any such unlawful act; every person so offending, and being convicted, shall be adjudged guilty of felony, and suffer death without benefit of clergy.

This statute contains enactments concerning many other of- Construction fences besides that which has been above set forth, and is com- of this statute. monly called the Black Act; a part of it relating to offences committed by persons in disguise, or having their faces blacked: but it is settled that it is not necessary for the completion of the offence now under consideration that the offender should have his face blacked, or be in any other manner disguised. (i)

It has been determined that this statute extends not only to the It extends to person or persons who actually shoot at another, but also to every and assisting. person who is present, aiding and assisting, to commit the offence: for as the statute creates a new felony, the consequences incidental to a felony at common law follow of course: and the rule attaches, that every person present, aiding and assisting, is a principal in the second degree.(k) An objection, therefore, which was taken in a prosecution upon this statute that three persons could not be guilty of the same act of shooting, and that, as the indictment charged the act to have been done by three, one only could not be convicted, (?) does not appear to be well founded : for, as has been observed upon this case, if it is settled that under a charge for doing an act a person may be convicted as a principal in the second degree, there is no inconsistency in alleging an act to be done by several which could, in its immediate operation, be only committed by one; and the legal construction of the averment is only that they have done such acts as subject them to be punished as principals in the offence. (m) And in a subsequent case, where the indictment charged that the prisoner, and divers others unknown, shot at the prosecutor; and, in a second count, that a person unknown shot at the prosecutor, and that the prisoner was present, aiding, &c.; and upon the evidence, it appeared, that the shot was probably not fired by the prisoner; Ashurst, J. told the jury, that if they were of opinion that the prisoner and the other persons were in a confederacy together to make an attack upon the house of the prosecutor's master, and came armed with an intention to oppose all resistance, and that, in the prosecution of

(1) Arnold's case, 8 St. Tri. 313. 1 was not formally determined, the priHawk. P. C. c. 55. Of Shooting, &c. S. soner having been convicted of an4. 1 East. P. C. c. 8. S. 6. p. 412. other capital offence at the same

(k) Coalheavers' case, 0. B. 1768. time: but the opinion of the Judges Cas. Cr. L. 61. I Leach 64. i Hawk. was probably against the objection : P. C. c. 55. Of Shooting, &c. $. 11. and Buller, J. in Rex v. Young, 3 1 East. P. C. c. 8. s. 6. p. 413.; and T. R. 105. speaks of the case as having see ante, 21., et sequ. 28.

been so decided. (1) Rex v. Gibson, Mutton and (m) 5 Evans' Col. Stat. Cl. 6. p. Wiggs, 1785. 1 Leach 359. 1 East. 399, note (12) and see ante, 28. P. C. c. 8. s. 7. p. 413. This objection

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that purpose, the prisoner or any of his associates, shot at the

prosecutor, they should find the prisoner guilty. (n) The shooting

The words of the statute are, if any person or persons shall must be mali- .“ wilfully and maliciously shoot, &c. ;” thereby making malice an

essential ingredient in the offence. No act of shooting, therefore,
will amount, under this statute, to a capital offence, unless it be
accompanied with such circumstances as, in construction of law,
would have amounted to the crime of murder, if death had en-
sued: and it follows, that neither an accidental shooting, nor a
shooting in a transport of passion, excited by such a degree of
provocation as would have reduced the homicide, if it had ensued,
to the offence of manslaughter, are within the meaning of the sta-

tute. (0)
And the in- It has been said, that upon an indictment on this statuté, it is
strument must necessary to shew that the instrument was loaded with gunpowder,
be loaded with and also with a bullet, slug, or other deadly substance; but that
and be levelled it is sufficient if such facts appear from the general circumstances
at the party. of the case. (p) In a case where it did not appear whether the

wounds which the prosecutor had received in his neck and chin
were given by the wadding, or by a ball from a pistol, except that
the prisoner. who was endeavouring to effect an escape at the time,
exclaimed with an oath, “ Let me pass, or I will blow your brains
out,” and immediately fired, and the prosecutor said, that he appre-
hended the wounds must have been given by a ball, from the sen-
sation he felt at the time, and because it took him in one place,
and another witness said, that the report was very strong, for so
small a pistol; it was contended that there was not sufficient evi-
dence that the pistol was loaded with a leaden bullet. But the court
thought that there was sufficient evidence of that fact to go to the
jury: and the jury found the prisoner guilty. (9) It is necessary
also that the shooting should be with an instrument levelled at
the party. So that where the prosecutor, who was landlord of
the premises occupied by the prisoner, had come in the night to
bring provisions for a man whom he had put into possession of the
prisoner's goods under a distress for rent, and had got over the
pales of the garden for that purpose, but, upon being met by the
prisoner and severely beaten, was making his retreat, in the dark,
over another part of the pales, more than five yards' distance from
the place at which he entered, when the prisoner levelled a gun at
the place where the prosecutor got into the garden, and inimedi-
ately fired it off; the gun being thus fired in a different direction
from that in which the prosecutor was going, the court held that
it was not a shooting at the prosecutor within the meaning of the
statute. (r)

(n) Wells's case, Kent Spring Ass. 1 Hawk. P. C. c. 55. Of Shooting, &c.
1786. 1 East. P. C. c. 8. s. 7. p. 414. 4 Blac. Com. 207. note (2) 1
The jury found the prisoner guilty; East. P. C. c. 8. s. 6. p. 412.
and upon reference to the Judges, (p) i Hawk. P. C. c. 55. Of Shoot-
they were all of opinion that the di- ing, &c. s. 9. citing Rexo. Elliott, Old-
rection was right, and the conviction Bailey, 1787.
proper. And they said, that the Coal- (9) Weston's case, 1 Leach 247.
heavers' case, (ante, 28. and 591. note () Empson's case, I Leach 224. I
(k) was good law.

Hawk. P. C. c. 55. Of Shooting, &c. (0) Gastineaux's case, 1 Leach 417.

s. 7.

s. 10.

An objection was taken, upon an indictment on this statute, The shooting that the prisoner having fired at the party within his own house, may be in the was not within the meaning of the statute : but it was overruled.(s) house.

party's own The words of the statute “ wilfully and maliciously” have been of the indictconsidered as so far descriptive of the offence, that an indictment, ment. where the act was laid to be done “ unlawfully, maliciously, and feloniously,” the word wilfully being omitted, was held to be insufficient.(t) It seems that if the indictment be for shooting " in a dwelling house," and state the name of the owner of the house, it will be necessary to prove the name as stated : as in a case where the prisoner was indicted for shooting in the dwelling house of James Brewer and John Sanby, and it appeared upon the evidence that the names were in fact John Brewer and James Sanby, the variance was ruled to be fatal.(u)

By the fourteenth section of the statute the offences described The trial may in it may be “ tried and determined in any county in England, in be in any “ such manner and form as if the fact had been therein com

in

England. “mitted;" and it has been holden, that it is not necessary for the King to grant a special commission for such trial ; but that a private prosecutor may prefer his indictment in such county in England as may appear to him to be most conducive to the ends of justice. (w) He cannot, however, exercise this right for the purposes of injustice and oppression, as the statute expressly gives it for the better and more impartial trial of the indictment. (x)

The fourteenth section also provides, that no attainder for any Attainder not of the offences made felony by the act shall work corruption of to work corblood, loss of dower, or forfeiture of lands or chattels.

blood, &c. The statute 26 Geo. 2. c. 19. was passed for the purpose

26 Geo. 2. c. pressing the enormities occasionally practised upon persons ship- 19. makes the wrecked. The first section enacts, that if any person or persons beating or “ shall beat or wound, with intent to kill or destroy, or shall

persons ship“ otherwise wilfully obstruct the escape of any person endeavour- wrecked with

of re

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(8) Harris's case, 1 East. P. C. c. 8. said, that perhaps the averment was S. 8. p. 415,; and Addend. xviii.

not necessary to the validity of the in(1) Davis's case, 1 Leacb 493. 1 East. dictment, as the statute says, P.Č. c. 8. s. 8. p. 414, 415. The point “shall maliciously shoot at any perwas reserved for the consideration of son in any dwelling house, or other the Judges, and was very much de- "place;" but that as the averment was bated. Some of the Judges thought made, it must be proved as stated. that the word wilful was implied in the However, in two subsequent cases of word malicious: but a great majority indictments for robbing in the dwelling were clearly of opinion, that as the houses of particular persons who were Legislature bad, by the special pen- named, the convictions were held to ning of the act, used both the words, be proper ; though in one of them it ** wilfully and maliciously,” they must did not appear who was the owner of be anderstood as a description of the the house, and in the other the Christoffence; and they thought that they ian name of the owner of the house were bound by former precedents in could not be proved. Pye's case, Waranalogous cases. And see the cases wick, 1790. cor. Thomson, B. 1 East. collected in note (a) to this case, I P. C. c. 16. s. 168. p. 785.; and JohnLeach 494, as lo the rule that though stone's case, 1793, cor. Ashhurst, J. an indictment need pot recite a gene- 1 East. P. C. c. 16. s. 168. p. 786. ral penal statute, it must bring the (w) Mortis's case, I Leach 73. 2 fact within the express prohibition of it. Blac. R. 733. 1 East. P. C. c. 8. S. 9.

(u) Durour's case, i Leach 351. 1 East. P. C. c. 8. $. 8. p. 415. The court. (x) Id. ibid. VOL. I,

2 Q

p. 415.

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