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were

severe cuts with the sharp part of a crow bar. The indictment
was for cutting, with intent to murder, maim, and disable; and
there was no count charging the prisoner with the intent of pre-
venting his own lawful apprehension : and the jury found, that he
cut with intent to disable till he could effect his own escape. Upon
a case reserved, ten Judges (Graham, B. and Garrow, B. being
absent) held the conviction wrong; for, by the finding of the jury,
the prisoner intended to produce only a temporary disability, till
he could escape, not a permanent disability. (b)

But although the intent laid be that of doing grievous bodily
harm, and upon the evidence it appears that the prisoner's main
and principal intent was, to prevent his lawful apprehension, yet

may be convicted, if in order to effect the latter intent he also intended to do grievous bodily harm. The prisoner was engaged in poaching, and had fired his gun at one of three keepers, who, being on the watch for poachers, suddenly sprung up, and rushing forwards to seize him. The jury were of opinion, that the prisoner's motive was to prevent his lawful apprehension ; but that, in order to effect that purpose, he had also the intention of doing the keeper some grievous bodily harm. Upon objection taken, the learned Judge was of opinion, that if both intents existed, the question, which was the principal and which was the subordinate intention, was immaterial; and, upon the point being submitted to the consideration of the Judges, it was holden, that if both the intents existed, it was immaterial which was the principal and which the subordinate one; and that the conviction was therefore proper. (c)

Where the offence is charged to have been committed with Ricketts's intent to obstruct, &c. a lawful apprehension, it must be shewn case.. that the offender had some notification of the purpose for which he wounding is was apprehended before he inflicted the wound. Upon an indict- charged to be ment on this statute, it appeared that, in the morning of the day done with

intent to obmentioned in the indictment, the prisoner stole some wheat from an outhouse belonging to one Spilsbury; and that, the wheat being lawful appre. soon after found concealed in an adjoining field, Spilsbury, Webb, hensionit and others, watched near the spot, expecting that the thief would that the of come to carry it away, and that they should thus be able to dis- fender had cover and apprehend him. In the course of the day the prisoner some notifi:

cation of the and another man walked into the field, and lifted up the bag containing the wheat. They were immediately pursued; and Webb which he was seized the prisoner, without desiring him to surrender, or stating apprehended. for what reason he was apprehended. A scuffle ensued, during which, before Webb had spoken, the prisoner drew a knife, and cut him across the throat. Upon these facts Lawrence, J. held that, as Webb did not communicate to the prisoner the purpose for which he seized him, the case did not come within the statute; for if death had ensued, it would only have been manslaughter. But he said, that if a proper notification had been made before the cutting, the case would have assumed a different complexion. The prisoner was accordingly acquitted. (i)

(6) Rex v. Boyce, Trin. T. 1824, (c) Rex v. Gillow, East. T. 1825. MS. Bayley, J., and Ry. & Mood. Cr. Ry. & Mood. C. C. 85.

(1) Rex v. Ricketts, Worcester Sum.

purpose for

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Cas. 29.

and to shew

Evidence of In a case where a point was made, whether the shooting with two distinct acts of mali

which the prisoner was charged was by accident or design, it was cious shooting held, that proof might be given that the prisoner at another time admitted as shot intentionally at the same person. Pearce, the prosecutor, part of the transaction,

who was a gamekeeper, proved that he met the prisoner sporting

upon his manor, and remonstrated with him for so doing; and prothat the act

posed that the prisoner should go with him to the steward; saying, of shooting charged was

that if the steward would pardon him he should have no objection. not accidental. The prisoner assented to go with him, and they walked together

until they came near to the gamekeeper's horse, which was about sixty yards off, when Pearce went on before him towards the horse; and when he was at a short distance from the prisoner, the prisoner fired at his back, but said nothing. Pearce attempted to turn round, and saw the prisoner running, and attempted to run after him; but his back seemed to be broken, and he could not follow. He then turned back to the horse ; and, after getting upon it, was making his way home to a place about two miles off, and had got about half a mile on the road, at a place where there was a hedge on each side, when he saw the prisoner again in the lowest part of one of the hedges; and the moment he looked round at him the prisoner again fired his gun, the discharge from which beat out one of Pearce's eyes and several of his teeth, but did not cause him to fall from his horse. Between the first and second firing was about a quarter of an hour. In the course of the trial it was suggested, that the prosecutor ought not to give evidence of two distinct felonies : but the learned Judge thought it unavoidable in this case, as it seemed to him to be one continued transaction, in the prosecution of the general malicious intent of the prisoner. Upon another ground also the learned Judge thought such evidence proper. The counsel for the prisoner, by his cross-examination of Pearce, had endeavoured to shew, that the gun might have gone off the first time by accident; and, although the learned Judge was satisfied that this was not the case, he thought that the second firing was evidence to shew, that the first, which had preceded it only a quarter of an hour, was wilful; and to remove the doubt, if any existed, in the minds of the jury. The prisoner having been convicted, the matter was submitted to the consideration of the Judges, who were, of opinion, that the evidence was properly

received, and the prisoner rightly convicted. (e) Dyson's It is also necessary, in proceeding upon the same clause of the

statute, to shew that the person apprehending acted under proper wounding is

authority. For, in a case where it appeared that the prisoner charged to be having previously cut a person on the cheek, several others, who

were not present when the transaction took place, went to his intent to oli struct, &c. a house to apprehend him, without any warrant, and that upon their Jawful appre- attempting to take him into custody, he inflicted the wound upon hension, it is which the indictment was founded ; Le Blanc, J. was of opinion, necessary to shew that the that the prosecution could not be sustained. He said, that to conperson appre- stitute an offence within this branch of the statute, there must be hending acted

a resistance to a person having a lawful authority to apprehend under proper authority. Ass. 1811, cor. Lawrence, J. 3 Campb. (e) Rex v. Voke, Mich. T. 1823,

68. The prisoner was afterwards found Russ. & Ry.531.
guilty of larceny in stealing the wheat.

case. Where the

done with the

commit a fe

until he can

the prisoner, in order to which the party must either be present
when the offence is committed, or he must be armed with a war-
rant; and that this branch of the statute was intended to protect
officers

, and others armed with authority, in the apprehension of
persons guilty of robberies or other felonies. (k)

In a case, where the intent charged in three of the counts was, Where the inan intent to prevent a lawful apprehension; and, in the fourth, an tent is to do intent to do the prosecutor some grievous bodily harm; and, from dily harm, it the nature of the facts, the case turned upon the last count only, a is immaterial point was made on behalf of the prisoner, that no grievous bodily whether grievharm was done, as the cut was upon the wrist, and did not appear harm be done. to have been dangerous, as it got well in about a week : and the

General malice prisoner's counsel relied upon a doubt expressed by Bayley, J.,(p) is sufficient. whether the injury done was a grievous bodily harm contemplated by the act, the wound not being in a vital part. Another objec- fected in the tion was also taken upon the facts; from which it appeared, that night in an the prisoner having been apprehended by one Headley, in an attempt to attempt to break into his stable in the night, and taken into

lony, may be Headley's house, threatened Headley with vengeance, and endea- detained withvoured to carry his threats into effect with a knife which had been out a warrant laid before hin, in order that he might take some refreshment; be carried and, in so doing, cut the prosecutor Cambridge, one of Fleadley's before a maservants, who, with Headley, was trying to take away the knife ; gistrate. the act happening in that struggle, and perhaps not designedly as against Cambridge. Upon these facts it was objected, that there was no evidence of malice against the prosecutor Cambridge, but against Headley only; and that upon this statute general malice was not sufficient, as in the case of murder, and that malice against the particular individual was necessary. (9) A further objection was made, that the prisoner was not lawfully in custody, there being no warrant; and an attempt to commit felony being only a misdemeanor. The jury who found the prisoner guilty stated, that the thrust was made with intent to do grievous bodily harm to any body upon whom it might alight, though the particular cut was not calculated to do so. Upon the case being submitted to the consideration of the Judges, they were of opinion that, if there was an intent to do grievous bodily harm, it was immaterial whether grievous bodily harm was done ; that general malice was sufficient under this statute, without any particular malice against the person cut; and that, as the prisoner was detected in the night attempting to commit a felony, he might be lawfully detained without a warrant until he could be carried before a magistrate. (r)

A reported case upon this act states the following circumstances. Akenhead's The prosecutor and some other men had got hold of a woman, As to the who, as they conceived, had been using another person ill, and words“ grievsaid, that she deserved to be ducked in a trough which was near :

“ ous bodily but it did not appear that they intended to duck her. The prisoner, the sort of

case.

harm," (k) Rex v. Dyson, cor. Le Blanc, J. (9) Curtis v. the Hundred of Godley, York Spr. Ass. 1816, 1 Starkie N. P. R. 3 B. & C. 248. was cited, a case upon 246.

the Black act. (P) Rex v. Akenhead, Holt, N. P. C. (r) Rex v. Hunt, East. T. 1825, Ry. 470. Post, p. 602.

& Mood. C. C. 93.

" and

injury contemplated by the statute.

who was at some distance at the time, on being informed that
they were using the woman ill, exclaimed, “I have got a good
“ knife,” rushed immediately to the place where she was, entered
among the crowd, and instantly struck the prosecutor on the
shoulder with a knife. The prosecutor turned round upon him; a
struggle ensued between them; and in that struggle the prosecuto
received other wounds. After they had fought for some time, the
prisoner dropped the knife, and ran away. The wound upon the
prosecutor's shoulder was about seven inches long and two deep;
and the lap of one of his ears was cut. There was likewise a
slight wound on the gland of his neck, and a cut on his left arm.
Upon this evidence the counsel for the prisoner objected, that the
first count of the indictment, which stated an intent to murder,
&c. and the second count, which stated an intent to maim, dis-
figure, and disable, could not be supported; and that the only
question was upon the third count, which stated an intent to do
some grievous bodily harm. And upon this question he sub-
mitted, that the wounds were not of that kind from which grievous
bodily harm could ensue; that the transaction was a scuffle in
which a knife was used accidentally, without any settled design to
“ maim, disfigure, or disable,” or to do “other grievous bodily
“ harm” to the prosecutor ; and also that the wounds were not
inflicted in a part of the body which could produce such a conse-
quence. Bayley, J. entertained some doubts on the case; which
appear to have proceeded, principally, on the grounds that the
wounds were not in a vital part; that it was questionable whether
the injury done was a grievous bodily harm contemplated by the
act; and whether, if death had ensued, the crime would have been
more than manslaughter. And, taking all the circumstances of
the case into consideration, he directed the jury to acquit the pri-
soner.(d)

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. The two prisoners, White and Richardson, were breaking into a house in the lower division of Lamb's Conduit Street; but, upon alarm and pursuit, Richardson ran into Ormond Street, and White towards the Foundling. Randal seized White just by the house they were breaking into, and White cut him with an iron crow. Graham, B. told the jury, that if the prisoners came with the same illegal purpose, and both determined to resist, the act of one would fix guilt on both; and that it might be part of the plan to take different ways to divide the force against them. The jury found both the prisoners guilty : but the Judges thought that the conviction as to Richardson was wrong.(a)

But where a party is present, aiding, &c. it is not necessary that his should be the hand by which the mischief is inflicted. The first three counts of an indictment alleged, in the usual form, that J. T. did shoot at A. B., and went on to slate that M. and N. were present aiding and abetting; the second and third counts

(d) Rex v. Akenhead, Northumber- Hil. T. 1806, MS. Bayley, J., and Russ. land, 1816, I Holt's N. P. R. 469. & Ry. 99. Ante, 22.

(a) Rex v. White and Richardson,

Principals aiding, &c.

varying from the first only in the allegations of the intent: the three last counts (varying in like manner as to the intent) stated, that an unknown person shot at A. B., and that the said J. T. and M., and N., were present aiding and abetting the said unknown person, the felony aforesaid, in manner and form aforesaid, to do and commit, and were then and there knowing of and privy to the committing of the said felony, against the statute, &c., but did not charge them with being feloniously present, &c. The jury found J. T. guilty; but stated, in answer to a question put to them, that they did not find that J. T. was the man who fired at A. B. Upon which an objection was taken in arrest of judgment, that the three last counts were defective, on account of the omission of the word feloniously; and that no judgment could be entered on the three first counts, as the jury had negatived that J.T. was the man who fired. The learned Judge overruled the objection, which he considered as founded upon a supposed difference in the act of shooting, &c., and being present, &c., at the act; whereas the statute had made no such distinction. And he held the plain meaning and necessary construction of the statute to be, that if parties are present, &c., knowing, &c., the charge of feloniously shooting applies to every one of them. He reserved the point however for the consideration of the Judges; who were all of opinion that the conviction was right. (b)

It has been suggested, that where an ineffectual exchange of Shooting in a shots takes place in a deliberate duel, both the parties may be duel. guilty of the offence of maliciously shooting within this statute; and the seconds be also guilty as principals in the second degree: but this is mentioned as not having been any where expressly decided. (1)

This Chapter may be concluded with the mention of the Irish Conspiring or statutes, 36 Geo. 3. c. 27. and 38 Geo. 3. c. 57.; by the former persuading to of which the conspiring to murder any person, and by the latter Ireland. of which, the proposing, soliciting, encouraging, persuading, or endeavouring to encourage or persuade to murder, are made capital felonies. (m)

(6) Rex v. Towle and others, Mich. T. 1816, Russ. & Ry. 314. S. C. % Marsh 466. And see ante, 22, 28.

(1) 3 Chit. Crim. L. 848. note (w).

(m) 5 Evans's Col. Stat. Part V. Cl. iv. No. 19. in the note.

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