Page images



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 entered by the 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 neral 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 attempted 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.(t) 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. I East. P. C. c. 8. s. 3. “ Richardson, Chief Justice of C. B.

“ 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 sequ.

“ threw a brickbat at the said Judge, (u) Rex v. Lord Tbanet and others, “ which 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 notes “ and his right hand cut off and fixed thereto, are various instances of the “ to the gibbet, upon wbich he was judgment having been executed to “ himself immediately banged in the the full extent. One of them is re

presence of the court."

P. 408.


his office,

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. (*)

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 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 (2)

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 enacts, “ that if any person or persons shall unlawfully attempt a privy coun“ 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 “ 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

shire, citizen, or burgess, come to the parliament, or to the 6 council of the King, by his commandment, and there being and members of “ attending at the parliament or council,” that then proclamation parliament: 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 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


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

saults upon

lords and

and 5 Hen. 4. c. 6. as to as

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

(3) 1 Hawk. P. C. c. 21. s. 6. 4 Blac. Com. 125. Ante, 271.

(y) 3 Inst. 141. 1 Hawk, P. C. C. 21. S. 10.

(z) 4 Blac. Com. 126. 1 Hawk. P.C. c. 21. S. 10.

(a) I East. P. C. C. 8. 5. 3. p. 410. i Hawk. P. C. c. 21. 8. 3.

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

inenaces or

[ocr errors]

ambassador of peace. And it may be visited with severe penalties; for, as the statute 9 Edw. 2. c. 3. enacts that, if any person lay violent hands upon a clerk, the amends for the peace broken shall be before the King, that is, by indictment in the King's courts; and, as the assailant may also be sued before the bishop, that excommunication or bodily penance may be imposed; it appears that a person assaulting a clergyman is subject to three kinds of prosecution, all of which may be pursued for one and the same offence, namely, an indictment for the breach of the King's peace, a civil action for the special damage, and a

suit in the ecclesiastical court.(c) Assault with

Amongst the principal of those assaults, the aggravated nature intent to com- of which may be said to arise from the great criminality of the and demand object intended to be effected, is an assault upon a person with a ing money by felonious intent to commit a robbery : and nearly allied to this is

a demand of property effected by menaces or force, and with the *force, with in tent to steal. intent of stealing such property. These offences are made felo4 G. 4. c. 54. nies by the late statute, 4 G. 4. c. 54. s. 5. which repeals the

statute 7 G. 2. c. 21. which was an act for the more effectual punishment of assaults with intent to commit robbery, and then enacts, “ that if any person shall maliciously assault any other

person with intent to rob such other person, or shall by me“naces or by force maliciously demand money, security for mo“ney, goods or chattels, wares or merchandize, of any other person,

with intent to steal the same, or shall procure, counsel, aid or abet the commission of the said offences, or of any

of them; every person so offending, being thereof lawfully convicted, “ shall be adjudged guilty of felony, and shall be liable, at the “ discretion of the court, to be transported beyond the seas for “ life, or for such term, not less than seven years, as the court “ shall adjudge, or to be imprisoned and kept to hard labour in " the common gaol or house of correction, for any term not ex“ceeding seven years.” This section also makes it a felony to threaten to accuse a person with certain crimes, with intent to extort money, &c. from such person; an offence which will be more properly mentioned in a subsequent part of this Work.(a)

The offences described in the 4 G. 4. c. 54. and applicable to the present subject, appear to be, 1. A malicious assault upon any person with intent to rob such person; and, 2. A malicious demand by menaces or force of money, &c. of any


person with intent to steal the same. As to the word The word “ maliciously” would probably be deemed to be an maliciously.” essential part of the description of either of these offences. By

the repealed statute, 7 Geo. 2. c. 21., any person who should with an offensive weapon “ unlawfully and maliciously.” assault, with

(c) 4 Blac. Com. 217. where it is ritual censures for a round compensaid that the suit in the ecclesiastical sation in money; perhaps because court is, first, pro correctione et sa- poverty is generally esteemed by molule anime, by enjoining penance; and ralists the best medicine pro salute then again for such sum of money as animæ. shall be agreed upon for taking off the (a) Post. Book V. ch. iii. Of Threats penance enjoined ; it being usual in and Threatening Letters. those courts to exchange their spi

intent to rob, &c. was guilty of felony; and it seems to have been
admitted, that the proper way of describing such assault, was to
lay it to have been done unlawfully and maliciously, as well as
feloniously. (k)
The words of the statute are “shall maliciously assault any

other The assault person with intent to rob such other person.” 'Upon the repealed must be made act 7 G. 2. c. 21. the words of which were not quite so clear upon son intended this point, it was decided, that the assault therein described must to be robbed. be made upon the person intended to be robbed. The prisoner was indicted for assaulting one John Lowe with an offensive weapon, with intent to rob him. Mr. Lowe's evidence was, that between ten and eleven o'clock at night, he was travelling along the road in a post-chaise, when the chaise suddenly stopped, and he saw a man with his arm extended towards the post-boy, and heard him swear many bitter oaths with great violence, but did not hear him make any demand of money; and the post-boy swore, that the prisoner followed the chaise for some time, and at last presented a pistol at him, and bid him stop, using at the same time many violent oaths; that he immediately stopped the chaise, and the prisoner turned towards it, but perceived that he was pursued, and immediately rode away without saying or doing any thing to Mr. Lowe, who was in the chaise. The court held, that this evidence did not support the indictment, which charged an intent to rob Mr. Lowe, the gentleman in the chaise. Another indictment was then preferred against the prisoner, laying the assault with intent to rob the post-boy : but the same evidence being again given on the second trial, the court held that it would not maintain the indictment; that it was clear that the prisoner did not mean to rob the post-boy, for when he presented the pistol to him, and bid him stop, he made no demand upon him, but went towards the person in the chaise. (1)

A case is reported, which would rather lead to the conclusion, But no actual that it was at one time considered to be necessary in support of demand of the offence in the repealed act 7 Geo. 2. of an assault with an of. money, & fensive weapon with intent to rob, to shew such intention to rob the charge of by proving an actual demand of money, &c. to have been made by assault with

intent to rob. the prisoner. The indictment was for assaulting the prosecutor with a pistol, with intent to rob him ; and, by the evidence it appeared that the prosecutor, a coachman, was driving his coach along the road, and that the prisoner presented a pistol at him while he sat on his box, and called out to him to stop; but did not expressly make any demand of money. And upon this it is said, that the court held that the case was not within the meaning of that act; that a demand of money or other property must be made to constitute the offence; and that though a demand may be made by action as well as speech, as by a deaf and dumb man stopping

(k) Pegge's case, 1 East. P. C. c. 8. strict construction of the statute, s. 12. p. 420. ; and see Davis's case, which has the word of reference such. ante, 593.

And in 1 Hawk. P. C. c. 55. S. 4. (1) Thomas's case, 0. B. 1784. | Thomas's case is cited, and the exLeach 330. | East. P. C. c. 8. s. II. pression such person relied upon in p. 418. where it is observed, that per support of the same construction. haps this may he agrecable to the

a carriage, and putting his hat into it with one hand, and holding at the same time a pistol offensively with the other, yet the action must be plain, and unequivocally import a demand; and that in the case then under consideration, no motion or offer to demand the prosecutor's property was made.(m) But this case was doubted; (n) and it was observed upon it, that the words of the act 7 G. 2. c. 21. were in the disjunctive ; and that upon proof of the prisoner having assaulted the prosecutor with a felonious intent to rob him (which was a question for the jury) the case was brought expressly within the words, as well as the spirit, of that act. (o) It has been suggested also, upon this case, that as the prosecutor was a coachman, and the indictment charged an intent to rob him, it might have appeared to the court that he was not the party intended to be robbed ; (p) and we have seen that it was considered to be necessary that the assault should be made upon the person intended to be robbed. (9) Other cases, however, appear to put the construction of the repealed act 7 G. 2. in this matter beyond doubt, and shew that an actual demand of money, &c. was not necessary upon the clause of that act relating to the assault with intent to rob. Two men were indicted for a felonious assault upon the prosecutor, with a certain offensive weapon called a pistol, with a felonious intent to rob him. The evidence was, that the prisoners rushed out of a hedge upon the prosecutor, who was the driver of a returning chaise, as he was passing along the road; and one of them, presenting a pistol to him, bid him stop, which he did, but called out for assistance ; upon which one of the prisoners threatened to blow his brains out if he called out any more : but he continued to call, and presently obtained assistance, and took the men, who had made no demand of money. Upon this evidence the prisoners were convicted and transported.(r) * In a subsequent case, the indictment against the prisoner charged him with having, with an offensive weapon, feloniously made an assault upon the prosecutor, with a felonious intent to rob him. The evidence was that, while the prosecutor and another person were riding together in the highway, the prosecutor received a violent blow from a great stone, which was thrown by the prisoner from the hedge; that the prisoner then ran across a field, and was followed by the prosecutor, who asked him how he could be such a villain as to throw the stone ; on which the prisoner threatened the prosecutor, ran to him, and struck him violently with a staff, till at length the prisoner was overcome and secured. The prisoner's face was blacked, and he denied his name: but, on being questioned afterwards as to his motive, he said he was very poor, and wanted half a guinea to pay his brewer. He did not ask for money or goods. This case was submitted to the Judges, upon a question relating to the form of the indictment, and they held the conviction proper; but no objection was taken on behalf of the

(m) Parfait's case, O. B. 1740. I Leach 19. 1 East. P. C. c. 8. s. 11. p. 416, 417. i Hawk. P. C. c. 55. S. 3.

(n) i East. P. C. c. 8. s. 11. p. 417. (0) Id. ibid.

(p) i East. P. C. c. 8. s. 11. p. 418. (9) Thomas's case, ante, 617.

(r) Rex v. Trusty and Howard, O. B. 1783. 1 East. P. C. c. 8. s. II, p. 418, 419.

« EelmineJätka »