Indictment for using Instruments to procure Miscarriage. Commencement as in last precedent]-feloniously and unlawfully did use a certain instrument ("any instrument or other means whatsoever") called a -, by then [state the mode of using the instrument], with intent, etc. [as in the last precedent]. Felony: 24 & 25 Vict. c. 100, s. 85. See the last precedent. This offence is not triable at quarter sessions. 5 & 6 Vict. c. 38, s. 1 (ante, p. 126). Evidence. The evidence will be the same as in the last case, with this exception, that instead of proving the administration of the poison, etc., it must be proved that the defendant used the instrument mentioned, in the manner described in the indictment. Where the instrument alleged to have been used was a quill, which might possibly have been used for an innocent purpose, evidence was allowed to be given in order to prove the intent, that the prisoner had at other times caused miscarriages by similar means. R. v. Dale, 16 Cox, 703, Charles, J. As to the principle upon which this kind of evidence is admissible, see ante, p. 308. As to inciting a person to attempt to commit an offence against this section, see R. v. Brown, 63 J. P. 790, post, Book II. Part III. s. 3. Indictment for procuring Poison for the purpose of its being used to cause Miscarriage. (24 & 25 Vict. c. 100, s. 59, ante, p. 827.) Commencement as ante, p. 827]-unlawfully did procure ("supply or procure") two ounces of a certain noxious thing called savin, he the said J. S. then knowing that the same was then intended to be unlawfully used and employed with intent to procure the miscarriage of one A. N.; against the form [as ante, p. 465]. Misdemeanor: penal servitude for not less than three years and not exceeding five years, or imprisonment, with or without hard labour, not exceeding two years-24 & 25 Vict. c. 100, s. 59; 54 & 55 Vict. c. 69, s. 1, sub-ss. 1, 2 (ante, p. 235). As to fining the offender and requiring him to enter into recognizances and find sureties for keeping the peace, and being of good behaviour, 24 & 25 Vict. c. 100, s. 71 (ante, p. 778). Evidence. In order to constitute the offence of supplying a noxious thing knowing that the same was intended to be used with intent to procure a miscarriage, the substance supplied must be of a noxious character (in the quantity in which it was supplied). R. v. Cramp, and R. v. Hennah (ante, p. 828); and it is not sufficient that, being harmless in itself, it might, if taken under a belief that it would procure miscarriage, produce that result by its mere action on the imagination. R. v. Isaacs (ante, p. 828). If, however, the drug administered produces miscarriage, although there be no other evidence of its nature, this is sufficient evidence of its being a noxious thing. R. v. Hollis, 12 Cox, 463 (C. C. R.). If the drug supplied by the defendant be noxious, and be supplied with intent to procure miscarriage, the offence is complete, although the woman herself may not have intended to use the drug, and although no other person than the defendant may have intended that it should be used for the purpose of causing a miscarriage: R. v. Hillman, L. & C. 343; 33 L. J. (M. C.) 60; 9 Cox, 386: and although the woman was not, and never had been, pregnant. R. v. Titley, 14 Cox, 502, Stephen, J. (a). SECT. 4. ASSAULT, BATTERY, WOUNDING, ETC. Statutes. 24 & 25 Vict. c. 100 (Offences against the Person Act, 1861), s. 43Aggravated assaults.]-When any person shall be charged before two justices of the peace with an assault and battery upon a male child whose age shall not, in the opinion of such justices, exceed fourteen years, or on any female, either upon the complaint of the party aggrieved or otherwise, if the assault or battery is of such an aggravated nature that it cannot, in their opinion, be sufficiently punished under the provisions hereinbefore contained (s. 42) as to common assaults and batteries, may proceed to hear and determine the same in a summary way; and if the same be proved, may convict the person accused; and every such offender shall be liable to be imprisoned in the common gaol or house of correction, with or without hard labour, for any period not exceeding six months, or to pay a fine not exceeding (together with costs) the sum of 207., and in default of payment to be imprisoned in the common gaol or house of correction for any period not exceeding six months, unless such fine and costs be sooner paid, and if the justices shall so think fit in any of the said cases, shall be bound to keep the peace and be of good behaviour for any period not exceeding six months from the expiration of such sentence. [See Godsen v. Dartford Justices, 62 J. P. 104. A person charged under this section cannot elect to be tried on indictment (42 & 43 Vict. c. 49, s. 17, ante, p. 6), but may be sent for trial under s. 46, infra. As to the procedure and evidence under this section, where the person assaulted is under sixteen, see 4 Edw. 7, c. 15, ss. 12-18, post, pp. 882-887.] Sect. 44-Certificate of dismissal of charge of assault made to a court of summary jurisdiction.]-Ante, p. 175. (a) The ratio decidendi of both these cases has been severely criticized in a colonial case upon an enactment in exactly the same terms as 24 & 25 Vict. c. 100, s. 59. R. v. Hyland [1898] 24 Victoria L. R. 101. There the police set a trap to catch a supposed abortionist, and wrote him a letter stating that a woman was pregnant and asking for something to cure her. In the mistaken belief that the woman existed, the prisoner sent pills containing a small quantity of a certain drug, and at the trial the question arose, and was reserved, whether the prisoner could be convicted, as the drug had not been supplied for an existing woman. The court of six judges was equally divided in opinion, three accepting R. v. Hillman as decisive and as correctly defining the word "knowing so as to include "believing," the other three holding that the word "knowing" could not be so extended, and that the words "intended to be used" applied to the person supplied, and not to the supplier. In R. v. Sculley [1903] 23 N. Z. L. R. 380, the court followed R. v. Hillman, but were of opinion that on a charge of "procuring" there must be evidence that the instrument, etc., was obtained for the forbidden purpose, and not merely that it was possessed and used for such purpose. Sect. 45-Certificate of conviction, effect, etc.]-Ante, p. 175. Sect. 46.]-Provided that in case the justices shall find the assault or battery complained of (under ss. 42, 43) to have been accompanied by any attempt to commit felony, or shall be of opinion that the same is, from any other circumstances, a fit subject for a prosecution by indictment, they shall abstain from any adjudication thereon, and shall deal with the case in all respects as if they had no authority finally to hear and determine the same: Provided also that nothing herein contained shall authorize any justices to hear and determine any case of assault and battery in which any questions shall arise as to the title to any lands, tenements, or hereditaments or any interest therein or accruing therefrom, or as to any bankruptcy or insolvency or any execution under the process of any court of justice. [See Anon., 1 B. & Ad. 382: R. v. French, 20 Cox, 200. The justices can commit for trial even where the person assaulted does not prosecute. R. v. Gaunt, 18 Cox, 210; 60 J. P. 90 (C. C. R.).] Sect. 47-Aggravated and common assaults.]—Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable. . . to be kept in penal servitude.. And whosoever shall be convicted upon an indictment for a common assault shall be liable to be imprisoned for any term not exceeding one year, with or without hard labour. [The first part of this section re-enacts 14 & 15 Vict. c. 100, s. 29. The italicized part was new in 1861. For indictment, see post, p. 832. Cf. s. 20, post, p. 839.] 58 & 59 Vict. c. 39 (Summary Jurisdiction (Married Women) Act, 1895), s. 4-Power to make a separation order in favour of a married woman on conviction of her husband of assaulting her.]—Any married woman whose husband shall have been convicted summarily of an aggravated assault upon her within the meaning of s. 43 of the Offences against the Person Act, 1861 (ante, p. 830), or whose husband shall have been convicted upon indictment of an assault upon her, and sentenced to pay a fine of more than 51., or to a term of imprisonment exceeding two months, or whose husband shall have deserted her, or whose husband shall have been guilty of persistent cruelty to her, or wilful neglect to provide reasonable maintenance for her or her infant children whom he is legally liable to maintain, and shall by such cruelty or neglect have caused her to leave and live separately and apart from him, may apply to any court of summary jurisdiction acting within the city, borough, petty sessional, or other division or district in which any such conviction has taken place, or in which the cause of complaint shall have wholly or partially arisen, for an order or orders under this Act: Provided that where a married woman is entitled to apply for an order or orders under this section on the ground of the conviction of her husband upon indictment she may apply to the court before whom her husband has been convicted, and that court shall, for the purpose of this section, become a court of summary jurisdiction, and shall have the power without a jury to hear an application, and make the order or orders applied for. [Where a husband was convicted at assizes upon an indictment for throwing corrosive fluid on his wife with intent to burn, and was sentenced to imprisonment with hard labour for eighteen months, an order was made by Darling, J., on the application of the wife (under this and the following sections), that she be no longer bound to cohabit with her husband. R. v. Knowles, 65 J. P. 27.] Sect. 5-Provisions which may be included in a separation order.]—The court of summary jurisdiction to which any application under this Act is made may make an order or orders containing all or any of the provisions following, viz. : (a) A provision that the applicant be no longer bound to cohabit with her husband (which provision while in force shall have the effect in all respects of a decree of judicial separation on the ground of cruelty): (b) A provision that the legal custody of any children of the marriage between the applicant and her husband while under the age of sixteen years be committed to the applicant: (c) A provision that the husband shall pay to the applicant personally, or for her use, to any officer of the court, or third person on her behalf, such weekly sum not exceeding two pounds as the court shall, having regard to the means of both the husband and wife, consider reasonable: (d) A provision for payment by the applicant or the husband, or both of them, of the costs of the court and such reasonable costs of either of the parties as the court may think fit. [See note to s. 4, supra.] 24 & 25 Vict. c. 100, s. 74-Payment of prosecutor's costs by defendant.]— Where any person shall be convicted on any indictment of any assault, whether with or without battery and wounding, or either of them, such person may, if the court think fit, in addition to any sentence which the court may deem proper for the offence, be adjudged to pay to the prosecutor his actual and necessary costs and expenses of the prosecution, and such moderate allowance for the loss of time as the court shall by affidavit or other inquiry and examination ascertain to be reasonable; and unless the sum so awarded shall be sooner paid, the offender shall be imprisoned for any term the court shall award, not exceeding three months, in addition to the term of imprisonment (if any) to which the offender may be sentenced for the offence. [See ante, p. 260. This section and s. 75 were framed on 10 G. 4, c. 34, ss. 33, 34 (Tr.), but express the established English practice. See Beeley v. Wingfield, 11 East, 46; 10 R. R. 431: Keir v. Leeman, 6 Q. B. 308; 9 Q. B. 371.] Sect. 75-Such costs may be levied by distress.]-The court may by warrant under hand and seal, order such sum as shall be so awarded to be levied by distress and sale of the goods and chattels of the offender, and paid to the prosecutor, and that the surplus, if any, arising from such sale, shall be paid to the owner; and in case such sum shall be so levied, the imprisonment awarded until such payment of such sum shall thereupon cease. [See note to s. 74.] Sect. 77-Costs of prosecutions.]-The court before which any misdemeanor indictable under the provisions of this Act shall be prosecuted or tried, may allow the costs of the prosecution in the same manner as in cases of felony; and every order for the payment of such costs shall be made out and the sum of money mentioned therein paid and repaid, upon the same terms and in the same manner in all respects as in cases of felony. [This was new law in 1861. As to costs generally, see ante, p. 246.] Indictment for an Assault occasioning actual Bodily Harm. (24 & 25 Vict. c. 100, s. 47, ante, p. 831.) Central Criminal Court, to wit:-The jurors for our lord the King upon their oath present, that J. S., on the first day of June, in the year of our Lord at the parish of, or in the county_of and within the jurisdiction of the said court, in and upon one J. N., unlawfully did make an assault, and him the said J. N. did then beat, wound, and ill-treat [*thereby then occasioning to the said J. N. actual bodily harm*], [and other wrongs to the said J. N. then did] to the great damage of the said J. N.; against the form [as ante, p. 465]. The words "and other wrongs to the said J. N. then did" appear to be surplusage. Att. Gen. for N. S. W. v. Macpherson, L. R. 3 P. C. 268; 39 L. J. (P. C.) 59; 11 Cox, 604. The defendant may be convicted of a common assault on this indictment. R. v. Oliver, Bell. 287; 30 L. J. (M. C.) 12; 8 Cox, 384: R. v. Yeadon, L. & C. 81; 31 L. J. (M. C.) 70; 9 Cox, 91. A conviction on a count charging that the defendant assaulted the prosecutor, and thereby unlawfully and maliciously inflicted upon him grievous bodily harm, was held to be warranted by a finding of the jury in the following terms (there being evidence of grievous bodily harm): "Guilty of an aggravated assault, without premeditation; it was done under the influence of passion." R. v. Sparrow, Bell, 298; 30 L. J. (M. C.) 43; 8 Cox, 393. Misdemeanor: penal servitude for not less than three and not exceeding five years, or imprisonment with or without hard labour, not exceeding two years.-24 & 25 Vict. c. 100, s. 47; 54 & 55 Vict. c. 69, s. 1, sub-ss. 1, 2 (ante, p. 235). As to fining the offender and requiring him to enter into recognizances and find sureties for keeping the peace and being of good behaviour, Id. s. 71 (ante, p. 778). As to adjudging payment by the defendant of the costs of the prosecution in case of conviction, see 24 & 25 Vict. c. 100, ss. 74, 75 (ante, p. 832). The court will not pass judgment for an assault during the pendency of an action for the same assault. R. v. Mahon, 4 A. & E. 575. The court may, with the assent of the prosecutor, if the circumstances appear to be such as to warrant that course, allow the defendant to plead guilty to a charge of assault, and inflict upon him a mere nominal fine, on the understanding that he shall make a compensation to the prosecutor. R. v. Roxburgh, 12 Cox, 8, Cockburn, C.J. But see post, tit. "Compounding Offences." Indictment for Common Assault (Common law). 66 If the indictment be for a common assault only, omit the words between the ** and conclude against the peace," etc., instead of "against the form," etc. Misdemeanor: imprisonment, with or without hard labour, not exceeding one year; 24 & 25 Vict. c. 100, s. 47; or by fine, etc., or order to pay costs, ut supra. The indictment may be preferred by any person: and the right to prosecute is not restricted to the person aggrieved, even where the indictment is preferred after summary proceedings, in consequence of the decision of the justices, under 24 & 25 Vict. c. 100, s. 46, supra. See R. v. Gaunt, 18 Cox, 210; 60 J. P. 90 (C. C. R.). Evidence for the Prosecution. Did make an assault.]—An assault is an attempt to commit a forcible crime against the person of another: such as an attempt to commit a battery, murder, robbery, rape, etc. The present is an indictment for an attempt to commit a battery, and also for a battery actually committed; and if the prosecutor prove either, the defendant must be convicted. Striking at another with a cane, stick or fist, although the party striking 53 A.C.P. |