66 clergy. maliciously shooting at any person in any dwelling-house, or other any person, feplace; an offence of which the probable consequence may be lony without either the killing or maiming such person. It enacts, that if any 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. of this statute. This statute contains enactments concerning many other of Construction fences besides that which has been above set forth, and is commonly 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. (¿) It has been determined that this statute extends not only to the person or persons who actually shoot at another, but also to every person who is present, aiding and assisting, to commit the of fence 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, (7) 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 (i) Arnold's case, 8 St. Tri. 313. 1 Hawk. P. C. c. 55. Of Shooting, &c. s. 4. 1 East. P. C. c. 8. s. 6. p. 412. (k)_Coalheavers' case, O. B. 1768. Cas. Cr. L. 61. 1 Leach 64. 1 Hawk, P. C. c. 55. Of Shooting, &c. s. 11. 1 East. P. C. c. 8. s. 6. p. 413.; and see ante, 21., et sequ. 28. (1) Rex v. Gibson, Mutton and Wiggs, 1785. 1 Leach 359. 1 East. P. C. c. 8. s. 7. p. 413. This objection was not formally determined, the pri- (m) 5 Evans' Col. Stat. Cl. 6. p. It extends to and assisting. persons aiding and assisting. cious. 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 ensued 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 statute. (0) And the in strument must be loaded with a bullet, &c. and be levelled at the party. It has been said, that upon an indictment on this statute, it is necessary to shew that the instrument was loaded with gunpowder, and also with a bullet, slug, or other deadly substance; but that it is sufficient if such facts appear from the general circumstances 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 apprehended the wounds must have been given by a ball, from the sensation 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 evidence 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. (q) 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 immediately 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. 1786. 1 East. P. C. c. 8. s. 7. p. 414. The jury found the prisoner guilty; and upon reference to the Judges, they were all of opinion that the direction was right, and the conviction proper. And they said, that the Coalheavers' case, (ante, 28. and 591. note (k) was good law. (0) Gastineaux's case, 1 Leach 417. 1 Hawk. P. C. c. 55. Of Shooting, &c. s. 7. 4 Blac. Com. 207. note (2) I East. P. C. c. 8. s. 6. p. 412. (p) 1 Hawk. P. C. c. 55. Of Shooting, &c. s. 9. citing Rex v. Elliott, Old Bailey, 1787. (q) Weston's case, 1 Leach 247. (r) Empson's case, 1 Leach 224. 1 Hawk, P. C. c. 55. Of Shooting, &c. s. 10. party's own 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. 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 in it may be "tried and determined in any county in England, in "such manner and form as if the fact had been therein com"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 of the offences made felony by the act shall work corruption of blood, loss of dower, or forfeiture of lands or chattels. The statute 26 Geo. 2. c. 19. was passed for the purpose of repressing the enormities occasionally practised upon persons shipwrecked. The first section enacts, "that if any person or persons "shall beat or wound, with intent to kill or destroy, or shall "otherwise wilfully obstruct the escape of any person endeavour (8) Harris's case, I East. P. C. c. 8. s. 8. p. 415,; and Addend. xviii. (1) Davis's case, 1 Leach 493. 1 East. P. C. c. 8. s. 8. p. 414, 415. The point was reserved for the consideration of the Judges, and was very much debated. Some of the Judges thought that the word wilful was implied in the word malicious: but a great majority were clearly of opinion, that as the Legislature bad, by the special penning of the act, used both the words, “wilfully and maliciously," they must be understood as a description of the offence; and they thought that they were bound by former precedents in analogous cases. And see the cases collected in note (a) to this case, 1 Leach 494, as to the rule that though an indictment need not recite a general penal statute, it must bring the fact within the express prohibition of it. (u) Durour's case, I Leach 351. East. P. C. c. 8. s. 8. p. 415. The court VOL. I. said, that perhaps the averment was 66 son in any dwelling house, or other 2 Q The trial may be in any county in England. Attainder not to work corruption of blood, &c. 26 Geo. 2. c. 19. makes the beating or wounding persons shipwrecked with The shooting cious, that purpose, the prisoner or any of his associ must be mali- " wilfully and maliciously shoot, &c.;" i. e. any ship Ach shall be in aded, or cast on ns) or the wreck at out any false light or vessel into danger; shall be deemed guilty ted thereof, shall suffer Jenefit of clergy." (y) ch is commonly called Lord divers cruel and barbarous outantonly committed, in divers parts -pon the persons of his Majesty's subcent to murder, or to rob, or to maim, disor to do other grievous bodily harm to such that if any person or persons shall, either in reland, wilfully, maliciously, and unlawfully, shoot Majesty's subjects, or shall wilfully, maliciously, unlawfully, present, point, or level any kind of loaded fire It has been sai of the car were the e 66 #gris, at any of his Majesty's subjects, and attempt by drawing a trigger, "against aciously, to or in other manner, to discharge the same at or his or their person or persons, or shall wilfully, maliand unlawfully stab or cut any of his Majesty's subjects, intent in so doing, or by means thereof, to murder, or rob, maim, disfigure, or disable, such his Majesty's subject or a subjects, Or with intent to do some other grievous bodily harm "to such his Majesty's subject or subjects, Ör with intent to obstruct, resist, or prevent the lawful apprehension and detainer of "the person or persons so stabbing or cutting, or the lawful "apprehension and detainer of any of his, her, or their accom"plices, for any offences for which he, she, or they may respect"ively be liable by law to be apprehended, imprisoned, or detained, "or shall wilfully, maliciously, and unlawfully administer to, or cause to be administered to, or taken by, any of his Majesty's "subjects, any deadly poison, or other noxious and destructive "substance or thing, with intent such his Majesty's subject or 66 subjects thereby to murder, the person or persons so offending, "their counsellors, aiders, and abettors, knowing of and privy to "such offence, shall be, and are hereby declared to be felons, and "shall suffer death, as in cases of felony, without benefit of clergy: “PROVIDED ALWAYS, that in case it shall appear on the trial of any person or persons indicted for the wilfully, maliciously, and unlawfully shooting at any of his Majesty's subjects, or for wilfully, maliciously, and unlawfully presenting, pointing, or levelitling, any kind of loaded fire-arms, at any of his Majesty's sub"jects, and attempting by drawing a trigger, or in any other "manner, to discharge the same at or against his or their person or persons, or for the wilfully, maliciously, and unlawfully stabbing or cutting any of his Majesty's subjects, with such intent "as aforesaid; that such acts of stabbing or cutting,(s) were com· cutting were so committed that if death had ensued, would not have been murder, the party charged is to be acquitted. 66 66 (y) By s. 18. the act is not to extend to Scotland. (z) Either the words "of stabbing 66 or cutting" should have been omit 'c. 22 & 26 Gas 2 c 19 under such circumstances as that, if death had ensued ན་ ་ བ ་ Shooting, cutting, or stabe intent to do bing, with or adminis tering poison. bodily harm, 2. 4. c. 126. recites the title of the 43 Geo. 3. Offences in cy of making similar provisions in Scotland, Scotland. me of the said crimes; and then enacts, 1825, "if any person shall, within Scotously, and unlawfully shoot at any of his us, or shall wilfully, maliciously, and unlawfully 6, or level any kind of loaded fire arms, at any of his any grievous s subjects, and attempt, by drawing a trigger, or in any manner, to discharge the same, at or against his or their erson or persons, or shall wilfully, maliciously, and unlawfully stab or cut any of his Majesty's subjects, with intent in so doing, "or by means thereof, to murder or to maim, disfigure or disable, "such his Majesty's subject or subjects, or with intent to do some "other grievous bodily harm to such his Majesty's subject or "subjects; or shall wilfully, maliciously, and unlawfully admi"nister to, or cause to be administered to, or taken, by any of his "Majesty's subjects, any deadly poison, or other noxious and de"structive substance or thing, with intent thereby to murder or "disable such his Majesty's subject or subjects, or with intent to "do some other grievous bodily harm to such his Majesty's sub"ject or subjects, such person, being lawfully convicted of any of "the aforesaid acts, shall be held guilty of a capital crime, and "receive sentence of death accordingly.' 66 Death. Throwing sul phuric acid, tent to do any grievous bodily harm in Scotland. &c. with in The second section enacts, that "if any person in Scotland “shall, from and after the said first day of July, wilfully, maliciously, and unlawfully throw at, or otherwise apply to, any of "his Majesty's subject or subjects, any sulphuric acid, or other "corrosive substance, calculated by external application to burn or "injure the human frame, with intent in so doing, or by means "thereof, to murder or maim, or disfigure or disable, such his "Majesty's subject or subjects, or with intent to do some other "grievous bodily harm to such of his Majesty's subject or subjects, " and where, in consequence of such acid or other substance being so wilfully, maliciously, and unlawfully thrown or applied, with "intent as aforesaid, any of his Majesty's subjects shall be maimed, "disfigured, or disabled, or receive other grievous bodily harm, "such person being thereof lawfully convicted, shall be held to be "guilty of a capital crime, and shall receive sentence of death ac- Death. cordingly: provided always, that if it shall appear upon the Proviso if "trial of any person accused of any of the aforesaid offences, that death had en 66 ted, or words to the following effect should have been inserted in their stead:-"Of shooting at, presenting, "pointing, or levelling and attempting "to discharge such fire-arms as afore"said, or such acts of stabbing or "cutting." From a MS. note in the late Mr. J. Grose's copy of the MS. sued, and the |
