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clause of the

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 offenee described The intent to in this statute of 4 Geo. 4. c. 54. s. 5., and should be properly al- rob is a mate leged in the indictment. In a case upon the repealed act 7 Ġ. 2. rial part of the c.

21. where the indictment stated the assault to have been made should be prowith a certain offensive weapon called a wooden stick, with intent perly alleged

in the indict. 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 and

violently to steal, take, and carry away;" upon which indictinent 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 (x) So, in a case of a commitment for an offence against the same repealed act, one of the objections upon which it was moved that the prisoner might be bailed, was, that the commitment did not charge the defendant with a felonious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)

In prosecutions for the second offence described in the 4 G. 4. Upon the 2d c. 54. s. 5., where the prisoner is charged with demanding money, 4 G. 4. where a &c. by menaces, &c. with intent to steal, it should seem that an demand must actual or express demand by words is not necessary. In proceed- be proved, it ing upon indictments framed upon the second clause of the re- seems that an

actual or expealed 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

not necessary. 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 experi

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 The indictdemanded : and if the indictment be for threatening to accuse, &c. ment on 4 G. it must allege who was the person threatened. One account of an from whom the indictment stated, that the prisoners, with force and arms, &c. money, &c. at, &c. maliciously and feloniously, by menaces, did demand the was demanded. monies of one John Axx, with intent the said monies of the said ment on this

press demand

P. 421.

(1) Sharwin's case, Oakham, 1785. (y) Rex v. Remnant, 5 T. R. 169. cor. Gould, J, 1 East. P. C. c. 8. s. 13. 2 Leach 583. I Hawk. P. C. C. 55.

S. 8. (3) Monteth's case. 0. B. 1795. 2 (a) 1 East. P. C. c. 8. s 11. p. 417. Leach, 702. 1 East, P. C. c. 8. s. 12. (0) Rex v. Jackson and Randall, 1 p. 420, 421.

Leach 269,

statute for

ened.

John Axx, then and there feloniously to steal, &c. Another thrcatening to

count stated, that the prisoners, with force and arms, &c. at, &c. accuse, &c., must state who maliciously and feloniously did threaten to accuse the said John was threat

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.23.5.11. 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.(z) 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

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. 1885. Ry. & Mvod. C. C. (2) 4 Blac. Com. 246.

Assault with

the person.

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Though it is nearly a century since the statute was made, the Construction books furnish only one case upon the construction of this section of the statute. of it; and a reason for referring that case, in the year 1790, to the consideration of the Judges, is stated to have been, that it was the first that had occurred upon the act of parliament. (a)

In that case the prisoner was indicted for an assault of the kind Williams's mentioned in the statute upon a Miss Anne Porter. The evi- case.

The primary dence, in substance, was, that the prisoner had frequently, before intention must the time of the assault, accosted the prosecutrix, and her sister be a tearing, Miss Sarah Porter, when he happened to meet them, insulting spoiling, cutthem, and using the most indecent language; that on the day of the clothes, the assault the Miss Porters were walking up St. James's street, and not a when he came immediately behind Miss Sarah Porter, muttered wounding of gross language, and, upon her making an exclamation of alarm, gave her a violent blow on the back part of her head; that the Miss Porters then ran as fast as possible towards the door of their own house, which was at a short distance, and while Miss Sarah Porter was ringing the bell, the prisoner, who had followed them, stooped down, and struck Miss Anne Porter with great violence upon the hip; and that the blow was given with some sharp instrument, which tore and cut quite through her clothes, and gave her a very severe wound. Buller, J., told the jury that in order to constitute an offence within the statute, it was necessary, first, that the assault should be made in a public street or highway;(b) secondly, that it should be made wilfully and maliciously;

thirdly, that it should be made with an intent to tear, spoil, cut, &c. the garments or clothes of some person ; and, fourthly, that the garments or clothes of such person should be actually torn, spoiled, cut, &c. And upon the third point he stated, that if the intent of the prisoner was to cut both the clothes and the person, and in carrying such intention into execution the clothes alone were cut, it would clearly be within the meaning of the act; or if the intention was to injure the person only, and not to cut the clothes, yet if, in carrying such intention into execution, the assault was made with such an instrument, or under such circumstances as plainly shewed, that the execution of the intention to injure the person must unavoidably tear, spoil, cut, &c. the clothes, they might consider whether a person who intends the end does not also intend the means by which that end is to be attained. The jury found the prisoner guilty : but the question of intention, and another point which arose upon the form of the indictinent, were submitted to the Judges for their consideration; and a majority of them were of opinion that the case was not within the statute. They thought that, in order to bring a case within the statute, the primary intention must be the tearing, spoiling, cutting, &c. of the clothes; whereas in the present case the primary intention of the prisoner appeared to have been the wounding of the person of the prosecutrix.(c)

(a) Williams's case, 1 Leach 533. the metropolis, p. 317. and in 1 Hawk.

(b) This is also considered as the P. C. c. 54. s. 2. construction necessarily resulting from (c) Baller, J. appears to bave rethe words of the act in Fielding's tained the opinion which he gave to Treat, on the penal laws relating to the jury at the consultation of the

ment must

same time that the assault

account of

The indict- It should be observed, however, that the other point, upon the

form of the indictment, is said to have been that on which the allege that the clothes were, judgment, in this case, ultimately turned. The indictment stated, torn, spoiled, that the prisoner, on the 18th day of January, in the year, &c. cut, &c. aththe made the assault, with intent to tear, spoil, cut, &c. and that on

the said 18th day of January, he did tear, spoil, cut, &c. And was made with all the Judges agreed that it was bad, because it did not allege intent to cut them.

that the clothes were cut at the same time that the assault was made with intent to cut them; that, for any thing that appeared to the contrary on the face of the indictment, the assault might have been made on one part of the day and the tearing the clothes on another part of the day: and that it should have alleged, after stating the assault at the time and place mentioned, that the prisoner then and there tore, spoiled, cut, &c. the clothes of the pro

secutrix.(d) 26 G. 2. c. 19. The statute 26 Geo. 2. c. 19. relating to attempts to kill and 3.11. Assault- destroy persons endeavouring to escape from a vessel in distress, ing persons on

or wrecked, has been already mentioned. (e) A subsequent section their discharge of the statute makes the assaulting persons on account of their of their duty discharging their duty in the salvage or preservation of any vessel in the salvage in distress, or of any vessel or goods which may be wrecked, distress, or of stranded, &c. an offence to be punished by transportation for vessels, goods, seven years. It enacts, “that if any sheriff, or his deputy, jus&c. wrecked: “ tice of the peace, mayor, or other magistrate, coroner, lord of a

c

“ manor, commissioner of the land tax, chief constable, or petty “ constable, or other peace officer, or any custom-house or excise “ officer, or other person lawfully authorized, shall be assaulted, “ beaten, and wounded, for or on account of the exercise of his “ or their duty, in or concerning the salvage or preservation of

any ship or vessel in distress, or of any ship or vessel, goods or “effects, stranded, wrecked, or cast on shore, or lying under

water, in any of his Majesty's dominions; then any person or

persons so assaulting, beating and wounding, shall, upon trial “ and conviction, by indictment at the assizes, or general gaol " delivery, or at the general or quarter sessions for the county, “ riding, or division, where such offence shall be committed, be

transported for seven years to some of his Majesty's colonies in “ America; and shall be subject to such subsequent punishment, “ in case of return before that time, as other persons under sen“ tence of transportation are by the law subjected unto." () Judges, and to have thought the case the prisoner was remanded to Newwithin the statute, upon the autho- gate, and eight indictments were prerity of Rex v. Coke and Woodburn, ferred against him for this outrage, (ante, 590) He thought the case within and others of a similar pature, upon the statute, because he considered the seven other ladies, as for misdemeaintent of the prisoner to have been to nors at common law. Evidence was wound the party by cutting through given upon three of them; and being her clothes, and therefore that he convicted, he was sentenced to two must have intended to cut her clothes; years' imprisonment on each, and at and that the jury, whose sole province the end of the six years, to find sureit was to find the intent, had expressly ties for his good behaviour for seven so found it. 1. East. P. C. C. 8. s. 18. years.

(e) Ante, 594. (d) Williams's case, I Leach 529. (f) 26 Geo. 2. e. 19. s. Il. By s. 18. 1 East. P.C. c. 8. s. 18. p. 424, 425. the act is not to extend to Scotland. 2

p. 424.

1

on the com

him

tions.

of oyer

The 11 & 12 W.3. c.7. s. 9. enacts that, “ if any person shall 11 & 12 W.3. “ lay violent hands on his commander, whereby to hinder him c. 7. Persons

laying hands “ from fighting in defence of his ship and goods, committed to his “ trust,” he shall be adjudged to be a pirate, felon, and robber; mander of a and being convicted, shall suffer death and loss of lands, goods, &c. ship to binder as pirates, felons, and robbers upon the seas, ought to suffer.(g)

fighting are to ''he 33 Geo. 3. c. 67. provides for the punishment of persons suffer death. obstructing seamen, keelmen, casters, and shipcarpenters, and 33 G. 3. c. 67. preventing them from pursuing their lawful occupations. The .. 2. Obstructsecond section enacts, that if any seaman, keelman, caster, ship- assaulting carpenter, or other person, shall unlawfully, and with force, pre- them with invent, hinder, or obstruct any seaman, keelman, caster, or ship- struct and precarpenter, from working at, employing himself in, or exercising vent themfrom his lawful trades, business or occupation respectively, or shall wil- pursuing their fully and maliciously assault, beat or wound, or use or commit lawful occupaany bodily violence or hurt to or upon any seaman, keelman, &c. with the intent to deter, prevent, hinder, or obstruct, such seaman, keelman, &c. from working at, employing himself in, or exercising his lawful trade, business, or occupation, respectively, every seaman, keelman, &c. and other person, being lawfully convicted of any such offences, upon any indictment, in any court

and terminer, or general or quarter sessions for the county, shire, riding, division or district, wherein the offence was committed, shall be committed either to the common gaol for the same county, &c. there to continue, or to the house of correction for the same county, &c. there to continue, and to be kept to hard labour, for any term not exceeding twelve nor less than six calen. dar months.

The third section enacts, that if any seaman, keelman, &c. or s. 3. a subseother person, shall be convicted of any of the offences aforesaid, quent offence in pursuance of this act, and shall afterwards offend again in like of the same manner, every such seaman, keelman, &c. and other person so felony. offending again in like manner, and being lawfully convicted thereof, upon any indictment, in any court of oyer and terminer, or general or quarter sessions for the county, &c. wherein the offence was committed, shall, for such second and every subsequent offence, be adjudged guilty of felony, and shall be transported to some of his majesty's dominions beyond the seas, for any space of time or term of years, not exceeding fourteen years, nor less than seven years.

The act contains a provision that no person shall be prosecuted Limitation of by virtue of it for any of those offences, unless the prosecution prosecutions. be commenced within twelve calendar months, after the offence committed.(h)

The 5 Eliz. c. 4. s. 21. enacts, that if any servant, workman, or 5 Eliz, c. 4. labourer, shall wilfully or maliciously make an assault or affray workman, &c. upon his master or mistress, or upon any other having charge or assaulting oversight of such servant or labourer, or over the work wherein master, he is hired to work, and shall thereof be convicted before any two

tress, &c. justices, or other head officer as aforesaid, by confession or oath

(g) See this statute more at large, was at first only temporary ; but it ante, 104, 105.

was made perpetual by the 41 Geo. 3. (h) 33 Geo. 3. c. 67. s. 8. This act c. 19. s. 4.

mis

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