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traverse, and all other court fees, he endeavoured to be tried verse. And if, under the commission of gaol delivery : but his trial under this before he

came in to commission was opposed by the officers of the court, on the plead he had ground that by omitting to enter his traverse he had not per- given notice formed the condition of his recognizance. The learned Judge that he would

at the same entertaining some doubts whether, as the defendant was in custody, he could refuse to try him, directed him to be tried, as in traverse, he the case of any common gaol traverse: but, in order to settle the might have

done so. practice in future, he afterwards submitted the matter to the Judges for their consideration. They were unanimously of opinion, that the defendant ought not to have been tried, as he had not performed the condition of the recognizance. But they all thought that he might have come in and moved to withdraw his plea of “ Not Guilty,” and have pleaded “Guilty," without entering his traverse, either on an agreement with the prosecutor, or on giving him proper notice of his intention so to do. And they likewise agreed, that if before he had come in to plead he had given the prosecutor ten days' notice that he would at the same time try his traverse, he might have done so.(1)

As every battery includes an assault, (u) it follows, that on an Verdict of indictment of assault and battery, in which the assault is ill laid, guilty of the if the defendant be found guilty of the battery, it is sufficient. (w) battery

This offence is punishable as a misdemeanor: and the punish- Punishment. ment usually inflicted is fine, imprisonment, and the finding of sureties to keep the peace.(x) But as the offence, though undoubtedly in some degree concerning the public, principally and more immediately affects an individual, the defendant is frequently permitted by the court to speak with the prosecutor, after conviction and before any judgment is pronounced ; and if the prosecutor declares himself satisfied, a trivial punishment, generally a fine of a shilling, is inflicted.(y)

SECT. II.

Of Aggravated Assaults.

ATTEMPTS to murder, or do some great bodily harm, (a) and assaults with intent to ravish,(b) or to commit an unnatural crime, (c) have been already noticed. Also assaults occurring in the obstruction of officers executing process(d) in effecting a rescue, (e) in the obstruction of revenue officers, (f) and in the hindering the

(1) Rex v. Fry, cor. Nares, J. South (y) Ante, 136. ampton Ass. and considered of by the (a) Ante, Chap. x. Judges, Hil. T. 1776, i Leach 111. id) Ante, 563, 564. (u) Ante, 605,

(c) Ante, 568. (w) I Hawk. P. C. c. 62, s. 1.

(d) Ante, 360, et sequ. (3) 4 Blac. Com. 217. 1 East. P.C. (e) Ante, 271, 362, 383, et sequ. c. 8. s. 1. p. 406. aud c. 9. $. I. p. 428. (f) Ante, 117, el sequ.

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exportation or circulation of corn, (g) have been mentioned in the course of the Work. The aggravated assaults which remain to be noticed in this place, are principally such as have been made the subject of particular legislative provision; and the peculiar aggravation appears to arise, either from the place in which, or the person upon whom, the assault is committed, or else from the

great criminality of the purpose or object intended to be effected. 5 & 6 Edw. 6. The statute 5 and 6 Edw. 6. c. 4. relates to disturbances in c. 4. s. 2. churches and church-yards; and the second and third sections of Smiting, or

+ the statute make particular provision for the punishment of ashands in a saults committed in those places. The second section enacts,

.. " that if any person or persons shall smite, or lay violent hands

“ upon any other, either in any church or church-yard,” every

person so offending shall be deemed excommunicate. The third S. 3. Striking section enacts, “ that if any person shall maliciously strike any with a weapon “ person with any weapon in any church or church-yard, or shall church-yard,

or “ draw any weapon in any church or church-yard to the intent to or drawing “strike another with the same weapon,' every person so offendone with in- ing shall be adjudged to have one of his ears cut off; and, if he tent to strike.

have no ears, to be marked in the cheek with a hot iron having the letter F therein, to denote him as a fray maker; and that he shall also be and stand excommunicated. .

Some points upon the construction of this statute have been mentioned in a former part of the Work; where it was stated that cathedral churches and church-yards are within it; that it will be no excuse for a person who strikes another in a church, &c. to shew that the other assaulted him; and that churchwardens, and perhaps private persons, who whip boys for playing in the church, or pull off the hats of those who obstinately refuse to take them off themselves, or gently lay their hands upon those who disturb the performance of any part of divine service, and turn them out

of the church, are not within the meaning of the statute.(h) Indictment With respect to the indictment upon this statute, it may be upon 5 and 6 here mentioned, that where it was charged that the defendant Edw. 6. c. 4.

drew his dagger in a church, without stating that he drew it with intent to stab, the indictment was holden void as to the statute; and, upon its being contended that it was good for the assault at common law, the court held, that it was altogether bad, as the conclusion was contra formam statuti.(0) It is clear that the indictment should allege, either that the party struck with the

weapon, or that he drew the weapon with intent to strike.(k) 33 Hen. 8. c. Contempts against the King's palaces have always been looked

cious upon as high misprisions; and, by the ancient law before the constriking in the King's palaces, quest, fighting in the King's palaces, or before the King's Judges, (5) Ante, 126, et sequ.

slatuti. But, according to more re· (h) Anle, 279. And see ante, 278, cent decisions, it seems that such a 279, the statute ciled more at length. conclusion would now be considered

(i) Rex v. Perchall, 2 Leon. 188. as mere surplusage, 1 Slark. 917. Rex v. Penhallo, Cro. Eliz. 231. And Rex v. Mathews, 2 Leach 585. 1 in Rex v. Cholmley, Cro. Car. 464, Hawk. P. C. c. 30. s. 9. 465, all the Judges, except Jones, J. (k) Rex v. Cholmley, Cro. Car. 464, held that the indictment could not be 465. 2 Hale 171. East, P, C. c. 8. good for a battery at common law, s. 4. p. 411. because it concluded contra formam

12. Malicious

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was punished with death.(l) The statute 33 Hen. 8. c. 12. by which enacts, that all malicious strikings by which blood is shed, against b the King's peace, within any of the King's palaces or houses, or any other house at such time as the royal person shall happen to be there demurrant and abiding, shall be inquired of by the Lord Steward; and that the offender shall be punished by perpetual imprisonment, and fine, at the King's pleasure, and also with the loss of his right hand. The execution of the latter part of the sentence, with solemn and due circumstance, is prescribed by the particular and minute provisions of the statute.(m) It is clear that, unless the person striking in the King's palace draw blood, he will not be liable to the punishment under this statute.(n) But it seems questionable, from the construction of the whole act and the general tenor of the books, whether striking in a palace, wherein the King is not at the time actually resident, be within the statute.(o) .

Striking in the King's superior courts of justice in Westmin- Drawing a ster-hall, or in any other place, while the courts are sitting, whe- weapon, or ther the court of chancery, exchequer, king's bench, or common ki

n striking in the

King's courts pleas, or before Justices of assize or oyer and terminer, is made of justice. still more penal than even in the King's palace; perhaps for the reason that, those courts being anciently held in the King's palace and before the King himself, striking there included the former contempt against the King's palace, and something more, namely, the disturbance of public justice.(P) So that, though striking in the King's palace is not punished with the loss of the offender's hand, unless some blood be drawn, nor even then with loss of lands or goods, the drawing of a weapon only upon a Judge or Justice in such courts, though the party strike not, is a great misprision, punishable by the loss of the right hand, perpetual imprisonment, and forfeiture of the party's lands during life, and of his goods and chattels.(9) And a party is liable to a similar punishment, if, in the same courts, and within their view, he

(1) 4 Blac. Com. 124.

brought in to undergo his sentence, (m) 33 Hen. 8. c. 12. s. 8. to s. 18. “ desired that the King of his benign

(n) 3 lost. 140. ] Hawk. P. Cc. “ grace would pardon him of his right 21. s. 3.

“ hand, and take the left : for (quoth (0) 1 Hawk. P. C. c. 21. s. 2. where “ he) if my right hand be spared, I it is said, that the instance given in “ may hereafter do such good ser3 Inst. 140. of a person's hand being “ vice to his grace as shall please him cut off for striking in the Tower, is “to appoint. Of this submission and not warranted by the record. The "request the justices forthwith inpunisbment of cutting off the hand is “ formed the King, wbo, of his goodundoubtedly one of great cruelty; “ ness, considering the gentle heart and it is therefore a satisfaction to be “ of the said Edinond, and the good able to speak of it as of rare occur. ' “ report of lords and ladies, granted rence in the history of the administra- “bim pardon, that he should lose tion of our criminal laws, even in the “ neither hand, land, nor goods, but more barbarous ages. It is said, that “ should go free at liberty.” Rex v.. not more than ten cases of the kind Sir Edmond Knevet, 11 St. Tri.(Harg. occur in our books. In the year 1541 Ed ) 16. (33 Hen. 8.) the sentence of Sir Ed. (p) 3 Inst. 140. 4 Blac. Com. 125. mond Knevet to undergo this punish- () Staundf. 38. 3. Inst. 140, 141. ment, gave occasion to a display of 1 Hawk. P. C. c. 21. S. 3. 4 Blac. loyal devotion, which cannot but be Com. 125. 1 East. P. C. c. 8. S. 3. read with interest. Sir Edmond being p. 408.

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strike a juror or any other person, either with a weapon, or with hand, shoulder, elbow, or foot : but he is not liable to such punishment if he make an assault only, and do not strike.(r) And one who is guilty of this offence cannot excuse himself by shew

ing that the person so struck by him gave the first assault.(s) Lord Thanet's In a case of modern occurrence, the three first counts of the

information set forth a special commission for the trial of Arthur Noli prosequi

O'Connor and others for high treason; and that, pending the sesattorney-ge- sions, after the acquittal of O'Connor, and before any order or peral as to the direction had been made by the court for his discharge, the dejudgment of amputation, fendants, in open court, &c. made a great riot, and riotously at

tempted to rescue him out of the custody of the sheriff, to whose custody he had been assigned by the Justices and commissioners; and, the better to effect such rescue and escape, did, at the said sessions, in open court, and in the presence of the said Justices and commissioners, riotously, &c. make an assault on one J. R., and did then and there beat, bruise, wound," and ill treat the said J. R., and thereby impede and obstruct the said Justices, &c. There were two other counts in the information; the one for riotously interrupting and obstructing the Justices in the holding of the session, and the other for a common riot.() Two of the defendants having been found guilty generally, considerable doubt was intimated by Lord Kenyon, whether the court were not bound to pass the judgment of amputation, &c. for the offence, as laid in the three first counts; and the matter stood over for consideration. But before the defendants were again brought up to receive judgment, the attorney-general said, that he had received the royal command and warrant under the sign manual, whereby he was authorised to enter a noli prosequi, as to those parts of the information on which any doubt had arisen, or might arise, whether the judgment thereon were discretionary in the court, and pray judgment only on such charges as left the judgment in their discretion : and, accordingly, a noli prosequi was entered on the three first counts; and on the others the court gave judgment

against the defendants, of fine, imprisonment, and sureties.(u) Rescuing a A person who rescues a prisoner from any of the courts which prisoner from have been mentioned, without striking a blow, is punished with such courts without

perpetual imprisonment, and forfeiture of goods, and of the prostriking.

fits of lands during life ; for this offence is in its nature similar to the other : but as it differs in this, that no blow is actually given,

(r) Staundf, 38. 3 Inst. 140, 141. markable for the speedy justice which 1 Hawk. P. C. c. 21. s. 3. 4 Blac. appears to have been administered. Com. 125. East. P. C. c. 8. $. 3. " Richardson, Chief Justice of C. B. p. 408.

“ at the assizes at Salisbury, in the (8) 1 Hawk. P. C. c. 21. S. 4. “ summer of 1631, was assaulted by

(1) See the precedent of this in “ a prisoner condemned there for feformation, 2 Chit. Crim. L. 208, et “lony, who after his condemnation segu,

“ threw a brickbat at the said Judge, (u) Rex v. Lord Thanet and others, “ wbich narrowly missed; and for this B. R. Trin. 39 G. 3. 1 East. P.C. c. "an indictment was immediately 8. S. 3. p. 408, 409, 410. In Rex v. “ drawn by Noy against the prisoner, Davis, Dy. 188 a. 188 b. and the potes " and his right hand cut off and fixed thereto, are various instances of the “ to the gibbet, upon wbicb he was judgment having been executed to “ himself immediately banged in the the full extent. One of them is re- “ presence of the court."

the amputation of the hand is excused.(w) And, for the like reason, an affray or riot near the said courts, but out of their actual view, is punishable by fine and imprisonment during pleasure, but not with the loss of the hand.(a)

Though an assault in any of the King's inferior courts of jus- Inferior tice would not subject the offender to lose his hand ;(y) yet, upon courts. an indictment for such an assault, the circumstances under which it was committed would, doubtless, be considered as matter of great aggravation. And any affray, or contemptuous behaviour in those courts, is punishable with a fine, by the Judges there sitting.(z)

It is said that, in order to warrant the higher judgment, the Indictment. offence must be charged to have been committed in the presence of the King, or of the Justices.(a) And it seems, also, that in order to warrant such judgment, the indictment ought expressly to charge a stroke; though it does not appear whether any technical word be necessary to be used for that purpose.(b)

The statute 9 Anne, c. 16. makes the assaulting and striking a 9 Anne, c. 16. privy counsellor, in the execution of his office, highly penal. It Assaulting and

striking, &c. enacts, “ that if any person or persons shall unlawfully attempt a pri “ to kill, or shall unlawfully assault and strike or wound any per- sellor, in the « son, being one of the most honourable privy council of her execution of

his office, “ Majesty, her heirs, or successors, when in the execution of his “ office of a privy counsellor, in council, or in any committee of “ council,” the person or persons so offending, being convicted, shall be felons, and shall suffer death, as in cases of felony, without benefit of clergy.

The statute 11 Hen. 6. c. 11. enacts, “ that if any assault or 11 Hen. 6. c. “ affray be made to any lord spiritual or temporal, knight of the 11. As to as

saults upon “ shire, citizen, or burgess, come to the parliament, or to the

lords and “ council of the King, by his commandment, and there being and members of “ attending at the parliament or council,” that then proclamation parliament :

and 5 Hen. 4. shall be made for three several days in the most open place of the town, where the assault or affray shall be made, that the offender saults upon yield himself before the King in his bench within a quarter of a the servants year, if it be in the time of the term, otherwise at the next day o

e next day of parliament. in term after the quarter; and if he do not, that he be attainted of the deed, pay double damages to the party aggrieved, and make fine and ransom at the King's will : and that if he come, and be found guilty, that he shall pay to the party grieved his double damages, and make fine and ransom at the King's will. A prior statute, 5 Hen. 4. c. 6., had made a provision nearly similar for the punishment of persons who should assault the servants of members of parliament.

The beating a clerk in orders, or clergyman, is also an assault Assaulting a of an aggravated nature, on account of the respect and reverence clergyman.

9 Edw. 2. c.3. due to the sacred character of such person, as the minister and

bers

(w) i Hawk. P. C. c. 21. s. 5. 4 Blac. Com. 125.

(a) 1 Hawk. P. C. c. 21. s. 6. 4. Blac. Com. 125. Ante, 271.

195. Ante. 271. (y) 3 Inst. 141. I Hawk, P. C. c. 21. 8. 10.

(2) 4 Blac. Com. 126. 1 Hawk. P. C. c. 21. s. 10.

(a) i East. P. C. c. 8. $. 3. p. 410. i Hawk. P.C. c. 21. 8. 3.

(6) 1 East. P. C. c. 8, s. 3. referring to i Sid. 211.

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