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) ting, &c. of the person. In that case the prisoner was indicted for an assault of the kind Williams's The evi- case. The primary mentioned in the statute upon a Miss Anne Porter. 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 assault the Miss Porters were walking up St. James's street, when he came immediately behind Miss Sarah Porter, muttered 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 indictment, 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. (c) Buller, J. appears to have re- The indictment must cut, &c. at the same time that the assault intent to cut It should be observed, however, that the other point, upon the allege that the form of the indictment, is said to have been that on which 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. 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 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 prosecutrix.(d) them. 26 G. 2. c. 19. s. 11. Assault ing persons on account of their discharge of vessels in distress, or of vessels, goods, &c. wrecked, stranded, &c. The statute 26 Geo. 2. c. 19. relating to attempts to kill and destroy persons endeavouring to escape from a vessel in distress, or wrecked, has been already mentioned. (e) A subsequent section 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, stranded, &c. an offence to be punished by transportation for seven years. It enacts, "that if any sheriff, or his deputy, jus"tice of the peace, mayor, or other magistrate, coroner, lord of a "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 66 any ship or vessel in distress, or of any ship or vessel, goods or "effects, stranded, wrecked, or cast on shore, or lying under 65 water, in any of his Majesty's dominions; then any person or 2 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.”(ƒ) Judges, and to have thought the case (d) Williams's case, 1 Leach 529. laying hands c. 7. Persons tent to obstruct and pre them with in 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 "from fighting in defence of his ship and goods, committed to his trust," he shall be adjudged to be a pirate, felon, and robber; him from and being convicted, shall suffer death and loss of lands, goods, &c. fighting are to as pirates, felons, and robbers upon the seas, ought to suffer.(g) The 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. ing seamen, or preventing them from pursuing their lawful occupations. The 5.2. Obstructsecond section enacts, that if any seaman, keelman, caster, ship- assaulting carpenter, or other person, shall unlawfully, and with force, prevent, hinder, or obstruct any seaman, keelman, caster, or shipcarpenter, from working at, employing himself in, or exercising vent them from his lawful trades, business or occupation respectively, or shall wil- pursuing their fully and maliciously assault, beat or wound, or use or commit lawful occupa any 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 of oyer 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 calendar months. tions. of the same kind made felony. The third section enacts, that if any seaman, keelman, &c. or s. 3. a subseother shall be convicted of any of the offences aforesaid, quent offence person, in pursuance of this act, and shall afterwards offend again in like manner, every such seaman, keelman, &c. and other person so 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 labourer, shall wilfully or maliciously make an assault or affray upon his master or mistress, or upon any other having charge or oversight of such servant or labourer, or over the work wherein he is hired to work, and shall thereof be convicted before any two justices, or other head officer as aforesaid, by confession or oath was at first only temporary; but it was made perpetual by the 41 Geo. 3. (g) See this statute more at large, ante, 104, 105. (h) 33 Geo. 3. c. 67. s. 8. This act c. 19. s. 4. s. 21. servant, 5 Eliz. c. 4. workman, &c. assaulting tress, &c. master, mis 12 G. 1. c. 34. 9 Anne, c. 14. s. 8. Assaults on account of money won at play. of two witnesses, he shall be imprisoned for a year or less, by the discretion of two justices, out of a town corporate, and, in a town corporate, of the mayor or other head officer, with two others of the discreetest persons of the same corporation; and if the offence shall require further punishment, then to receive such other open punishment, so as it extend not to life or limb, as the justices in sessions, or the mayor or other head officer, and six or four at least of the discreetest persons of the corporation, shall think convenient for the quality of the offence. 66 66 any The 12 Geo. I. c. 34. s. 6. enacts, "that if any person or persons shall assault or abuse any master woolcomber or master weaver, or other concerned in person of the woollen manu"factories of this kingdom, whereby any such master or other 66 person shall receive any bodily hurt, for not complying with, or "not conforming, or not submitting, to any such illegal by-laws, "ordinances, rules or orders, aforesaid," (namely, "by-laws, ordi66 nances, rules or orders, in unlawful clubs and societies, made or "entered into by or between any persons brought up in, or pro"fessing, using, or exercising the art and mystery of a wool"comber or weaver, or journeyman woolcomber, or journeyman "weaver, in any parish or place within this kingdom, for regulating the said trade or mystery, or for regulating or setting the "prices of goods, or for advancing their wages, or for lessening "their usual hours of work ;"(i)) every person so offending, being "thereof lawfully convicted upon any indictment to be found "within twelve calendar months next after any such offence "committed shall be adjudged guilty of felony, and shall be transported for seven years." This provision is extended by the eighth section of the statute to "combers of jersey and wool, "to framework knitters and weavers, or makers of stockings, and "to all persons whatsoever employed or concerned in any of the "said manufactories." And it is also extended by the 22 G. 2. c: 27. s. 12. to "journeymen dyers, journeymen hotpressers, and "all other persons whatsoever employed in or about any of the "woollen manufactories of this kingdom, and also to journeymen, "servants, workmen, and labourers, and all other persons what66 soever employed in the making of felts or hats, or in or about any of the manufactures of silk, mohair, fur, hemp, flax, linen, "cotton, fustians, iron or leather, or in or about any manufactures "made up of wool, fur, hemp, flax, cotton, mohair or silk, or of any of the said materials mixed one with another." 66 The statute 9 Anne, c. 14., which was passed for the better preventing of excessive and deceitful gaming, makes provision for preventing quarrels on account of gaming. The eighth section enacts, "that in case any person or persons whatsoever shall "assault and beat, or shall challenge or provoke to fight any other person or persons whatsoever, upon account of any money won by gaming, playing, or betting at any of the games aforesaid, "(namely, cards, dice, tables, tennis, bowls, or other game or games whatsoever;) () such person or persons assaulting and (i) The by-laws, &c. are thus described in the first section of the statute. () As to games considered as being within this statute, see ante, 407, 408. "beating, or challenging, &c. upon the account aforesaid, shall, "being thereof convicted upon an indictment or information, for"feit to her majesty, her heirs, and successors, all his goods, chattels, and personal estate whatsoever, and shall also suffer imprisonment in the common gaol of the county, where such "conviction shall be had during the term of two years." Rex v. Randall that the as Rex v. Darley. In this case a In a case upon this section of the statute, it appeared that Construction the prosecutor and the defendants were gaming together, and of the statute. that the defendants proposed breaking up and going away; that and others. the prosecutor having lost his money, objected to it, and wanted In this case it them to play on, complaining that they had won his money, and was supposed would not give him an opportunity of recovering it, upon which sault should the defendants committed the assault. And it is said that Bul- arise during ler, J. upon this evidence, directed the jury to acquit the defend- the time of ants; giving it as his opinion, that the game being over before the playing. assault began, the assault could not be said to have arisen out of the game, but to have arisen from what the prosecutor had said to the defendants; and that it was necessary, in order to bring a case within the statute, that the assault should arise out of the play, and during the time of playing.(k) But this opinion is not supported by the judgment of the court of King's Bench in a subsequent case, where the same point came under consideration. In the latter case, the indictment against the defendant contained three counts, two of which were framed upon the statute, and the third was for a common assault. After a general verdict of guilty, it was objected that the evidence did not warrant a verdict upon the counts framed upon the statute; because it appeared that the assault was not committed at the time of the play, but on the day afterwards; and then not on account of the money won at play, but on account of the abusive language which passed between the parties. The opinion of Buller, J. in the former case was cited; and it was urged, in corroboration of that opinion, that the great object of the statute was to repress such violence upon the spot, and at the very time of the gambling, when it might reasonably be imagined that ruined men, in the first paroxysm of despair, would be tempted to vent their passion in this manner. But Lord Ellenborough, C. J. said, that the court would refer to the learned Judge before whom the indictment was tried, to know in what manner the case was left to the jury; whether the assault were in fact made on account of the money won at play the day before, or on account of the ill language which had arisen afterwards upon the demand of payment being made. And he said that he could not go the length of the opinion in the case cited, and consider the words of the act as confined to an assault committed during the time of play; as it more frequently happened that disputes of that sort did not arise till after the play was over. The learned Judge before whom the indictment was tried, Mr. Justice Heath, being afterwards referred to, returned for answer, that he had directed the jury to acquit the defendant on the two first counts if they were not clearly satisfied that the defendant had assaulted the prosecutor on account of the money (k) Rex v. Randall and others, Bristol Sum. Ass. 1787. 1 East. P. C. c. 8. s. 17. p. 423. within the sta it mitted till long after the play is over. |
