Assault with intent to com mit a robbery, and demand ing money by menaces or force, with in. tent to steal. 4 G. 4. c. 54. As to the word 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) Amongst the principal of those assaults, the aggravated nature of which may be said to arise from the great criminality of the object intended to be effected, is an assault upon a person with a felonious intent to commit a robbery: and nearly allied to this is a demand of property effected by menaces or force, and with the intent of stealing such property. These offences are made felonies 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 money, goods or chattels, wares or merchandize, of any other per66 son, with intent to steal the same, or shall procure, counsel, aid 66 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 other person with intent to steal the same. 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 said that the suit in the ecclesiastical court is, first, pro correctione et salute animæ, by enjoining penance; and then again for such sum of money as shall be agreed upon for taking off the penance enjoined; it being usual in those courts to exchange their spi ritual censures for a round compen sation in money; perhaps because poverty is generally esteemed by moralists the best medicine pro salute animæ. (a) Post. Book V. ch. iii. Of Threats and Threatening Letters. 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 upon the peract 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, that it was at one time considered to be necessary in support of the offence in the repealed act 7 Geo. 2. of an assault with an offensive weapon with intent to rob, to shew such intention to rob by proving an actual demand of money, &c. to have been made by 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. s. 12. p. 420.; and see Davis's case, ante, 593. 1 (1) Thomas's case, O. B. 1784. Leach 330. 1 East. P. C. c. 8. s. 11. p. 418. where it is observed, that perhaps this may he agrecable to the strict construction of the statute, But no actual demand of money, &c. is the charge of assault with necessaryupon intent to rob. 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. (q) 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. 1 Leach 19. 1 East. P. C. c. 8. s. 11. p. 416, 417. 1 Hawk. P. C. c. 55. s. 3. (n) 1 East. P. C. c. 8. s. 11. p. 417. (0) Id. ibid. (p) 1 East. P. C. c. 8. s. 11. p. 418. (4) Thomas's case, ante, 617. (r) Rex v. Trusty and Howard, O. B. 1783. 1 East. P. C. c. 8. s. 11. p. 418, 419. prisoner, on the ground of its being necessary to prove an actual demand of money, or other property. (t) The intent to rob is a material part of the first offence described in this statute of 4 Geo. 4. c. 54. s. 5., and should be properly alleged in the indictment. In a case upon the repealed act 7 G. 2. c. 21. where the indictment stated the assault to have been made with a certain offensive weapon called a wooden stick, with intent the goods, monies, &c. of the prosecutor, "from his person and against his will feloniously to steal, take, and carry away," it was holden to be bad, as it did not contain a statement of force and violence. The prisoner was accordingly discharged from this indictment; and a new one was preferred against him, laying the assault as before, but stating the intent to be, the monies of the prosecutor, "from his person and against his will, feloniously aud violently to steal, take, and carry away;" upon which indictment he was convicted. (x) So, in a case of a commitment for an offence against the same repealed act, one of the objections upon which it was moved that the prisoner might be bailed, was, that the commitment did not charge the defendant with a felonious intent to rob, but merely with an intent feloniously to steal, take, and carry away. (y) 66 The intent to rob is a mate rial part of the offence, and should be properly alleged in the indict ment. Upon the 2d G. 4. where a demand must be proved, it clause of the seems, that an actual or ex press demand not necessary. In prosecutions for the second offence described in the 4 G. 4. c. 54. s. 5., where the prisoner is charged with demanding money, &c. by menaces, &c. with intent to steal, it should seem that an actual or express demand by words is not necessary. In proceeding upon indictments framed upon the second clause of the repealed act 7 G. 2. c. 21. for assaulting, and by menaces, or in and by any forcible or violent manner demanding money, &c. with a by words is felonious intent to rob, it was the better opinion, that an express demand of money by words was not necessary; and that the fact of stopping another on the highway, by presenting a pistol at his breast, was, if unexplained by other circumstances, sufficient evidence of a demand of money to be left to the jury. It was observed, that the unfortunate sufferer understood the language but too well; and the question was put, "Why must courts of justice be supposed ignorant of that which common experi66 ence makes notorious to all men?" (a) And in one case upon that act, the court appear to have considered, that an actual demand was not necessary; and that whether there was a demand or not was a fact for the consideration of the jury under all the circumstances. (b) : But the indictment must aver from whom the money, &c. was demanded and if the indictment be for threatening to accuse, &c. it must allege who was the person threatened. One account of an indictment stated, that the prisoners, with force and arms, &c. at, &c. maliciously and feloniously, by menaces, did demand the monies of one John Axx, with intent the said monies of the said (1) Sharwin's case, Oakham, 1785. Gould, J. 1 East. P. C. c. 8. s. 13. cor. P. 421. (x) Monteth's case. O. B. 1795. 2 Leach, 702. 1 East. P. C. c. 8. s. 12. p. 420, 421. (y) Rex v. Remnant, 5 T. R. 169. (a) 1 East. P. C. c. 8. s 11. p. 417. The indictment on 4 G. from whom the money, &c. was demanded. 4. must aver And an indictment on this statute for threatening to accuse, &c., must state who was threat ened. Assault with garments. 6 John Axx, then and there feloniously to steal, &c. Another count stated, that the prisoners, with force and arms, &c. at, &c. maliciously and feloniously did threaten to accuse the said John Axx of the crime of buggery, being a crime punishable by law with death, with a felonious intent to extort money from the said John Axx, and the said money, then and there, feloniously to steal, &c. The prisoners being convicted, it was objected in arrest of judgment, that the first of these counts did not state that any demand of money was made upon John Axx; that although the monies of John Axx were alleged to have been demanded, it was not stated from what person they were demanded; that it was not inconsistent with this count to suppose that the menace was offered to the wife, the child, or the servant of the said John Axx, or that the demand was made on his wife, child, or servant; and it was urged, that a demand of the monies of the said John Axx, made upon any other person than John Axx, and accompanied with a threat to any other person, would not be an offence within this statute and even if such a demand upon any other person were within the act, still it was said that there ought to be a distinct and precise averment as to the person on whom the demand was made, that the party accused may know with certainty, the charge on which he is to be tried. To the last count it was objected, that it did not state that the prisoners threatened the said John Axx to accuse him of the crime; and it was submitted, for reasons similar to those mentioned in the objection to the other count, that the omission of such a material averment was fatal. Judgment was respited upon these objections: and the case was submitted to the consideration of the Judges, who held both the objections valid; and the judgment was accordingly arrested (c) Another species of aggravated assaults is, where an assault is intent to spoil made with intent to spoil the garments or clothes of the person G.1.c.23.8.11. assaulted. The statute 6 Geo. 1. c. 23. s. 11. provided for the punishment of this offence; and the enactment is said to have been occasioned by the insolence of certain weavers and others, who, upon the introduction of some Indian fashions, prejudicial to their own manufactures, made it their practice to deface them, either by open outrage, by privily cutting, or by casting aqua fortis in the streets upon such as wore them. (2) The statute enacts," that if any person or persons shall wilfully and maliciously "assault any person or persons in the public streets or highways, "with an intent to tear, spoil, cut, burn, or deface, and shall tear, "spoil, cut, burn, or deface the garments or clothes of such per 66 son or persons, that then all and every person and persons so "offending, being thereof lawfully convicted, shall be, and be "adjudged to be guilty of felony: and every such felon and felons "shall be subject and liable to the like pains and penalties, as in case of felony; and the courts by and before whom he, she, "or they shall be tried, shall have full power and authority of "transporting such felons for the space of seven years, upon the "like terms and conditions as are given, directed, or enacted, by "this or the act (4 G. 1. c. 11.) therein recited." (c) Rex v. Dunkley and others, 90. East. T. 1825. Ry. & Mood. C. C. (*) 4 Blac. Com. 246. |