at the discretion of the court, to be transported beyond the seas for the term of his or her natural life, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years." By s. 4, "whosoever unlawfully and maliciously shall shoot at any person, or shall, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall stab, cut, or wound any person, with intent, in any of the cases aforesaid, to maim, disfigure, or disable such person, or to do some other grievous bodily harm to such person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony; and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of his or her natural life, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years." By s. 5, "whosoever shall unlawfully and maliciously send or deliver to, or cause to be taken or received by any person any explosive substance, or any other dangerous or noxious thing, or shall cast or throw upon, or otherwise apply to, any person any corrosive fluid or other destructive matter, with intent, in any of the cases aforesaid, to burn, maim, disfigure, or disable any person, or to do some other grievous bodily harm to any person, and whereby, in any of the cases aforesaid, any person shall be burnt, maimed, disfigured, or disabled, or receive some other grievous bodily harm, shall be guilty of felony; and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of his or her natural life, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years." By s. 7, principals in the second degree, and accessaries before the fact, are punishable with death or otherwise in the same manner as the principal felons and accessaries after the fact, with imprisonment not exceeding two years; see ante, p. 219. For s. 8, authorizing the court in cases of imprisonment to award hard labour and solitary confinement; see ante, p. 266. By s. 11, parties indicted for any of the offences mentioned in the act, or for any felony whatever, where the crime charged shall include an assault, (see post, p. 779,) may be found guilty of an assault. Four classes of cases are comprehended within the recent statute. 1. Administering poison; stabbing, cutting, or wounding; or otherwise causing bodily injury dangerous to life; with intent, in any of *such cases, to commit murder. [*7781 2. Attempting to administer poison; shooting at or attempting to discharge loaded arms; or attempting to drown, suffocate, or strangle; with intent, in any of such cases, to commit murder, although no bodily injury shall be effected. 3. Shooting at or attempting to discharge loaded arms; or stabbing, cutting, or wounding; with intent, in any of such cases, to maim, disfigure, or disable, or do some grievous bodily harm, or to prevent the lawful apprehension or detainer of any person. 4. Sending explosive substances; or throwing any corrosive fluid or other destructive matter; with intent, in any of such cases, to burn, maim, disfigure, or disable any person, or to do some other grievous bodily harm, and whereby any person shall be burnt, &c., or receive some other grievous bodily harm. Where the prisoner was indicted, under ss. 2 and 4, of the above statute, for stabbing and cutting with intent to murder, and for stabbing and cutting with intent to maim, &c.; Lord Denman, C. J., and Park, J., held that the offences might be included in the same indictment, although the judgment differed, being capital on the first count, and not on the others; and that the prosecutor could not be compelled to elect, on which charge he would proceed. Strange's case, 8 C. & P. 172.f An indictment under the 7 Wm. 4 and 1 Vict. c. 85, s. 5, need not specify the bodily injuries dangerous to life; it is enough to specify the means. Reg. v. Cruse, et ux. 2 Moo. C. C. 53, post, p. 784. Where a party having a deadly weapon lawfully in his possession in his own defence, but without having previously retreated as far as possible, cuts a person who is assaulting him, he is guilty of felony under the fourth section of this statute, if he intended grievous bodily harm. R. v. Adger, 2 Moo. & R. 479. Proof of attempts to poison.] By the 9 Geo. 4, c. 31, s. 11, administering and attempting to administer poison were placed on the same footing; but by the recent act the offences are distinguished and subjected to a different punishment. Under Lord Ellenborough's act, 43 Geo. 3, c. 48, s. 1, (which did not contain the words attempt to administer,) it was held that to constitute the offence of administering poison, some of the poison must be taken into the stomach. Cadman's case, ante, p. 266. See Where a servant put poison into a coffee pot, and when her mistress came down to breakfast, told her that she had put the coffee pot there for her, and the mistress drank of the poisoned coffee. Upon an indictment for "administering and causing to be administered" the poison, Park, J., ruled, that it was not necessary in order to constitute an "administering," that there should be a delivery by the hand, and that this was "a causing to be taken," within the 9 Geo. 4. Harley's case, 4 C. & P. 369. So where the prisoner knowingly gave poison to A. to administer as a medicine to B., and it was accidentally given to B. by a child, the judges held this to be an administering by the prisoner. R. v. Michael, 2 Moo. C. C. 120; 9 C. & P. 356. Where A. sent poison, intending it for B., with intent to kill B., and it came into the possession of C., who took it but did not die, Gurney, B., held this to be an administering within the same statute. R. v. Lewis, 6 C. & P. 161.i [*779] But where the indictment was for causing poison to be taken by *A. B. with intent to murder A. B., and the evidence was, that the poison, though taken by A. B., was intended for another person, and the prisoner was convicted; Parke, B., afterwards said that he had spoken to Alderson, B., and that they both much doubted whether the verdict could be supported, the intent not being proved as laid. Parke, B., after referring to the foregoing case, and questioning the propriety of the decision, ordered a fresh indictment to be preferred, alleging the intent in the words of the 1 Vict. c. 85, s. 2, to have been "to commit murder," generally, under which the prisoner was tried and convicted. R. v. Mary Ann Ryan, 2 Moo. & R. 213. The delivery of poison to an agent, with directions to him to cause it to be administered to another under such circumstances that if administered the agent would be the sole principal felon, is not an "attempt to administer poison," within the 1 Vict. c. 85, s. 3. R. v. Williams, 1 C. & K. 589; 1 Den. C. C. 39. As to the proof of the poison, or other destructive thing administered, see ante, p. 267. The indictment must allege the thing administered to be poisonous or destructive; and, therefore, an indictment for administering sponge cut into small pieces, and mixed with milk, with intent to poison, not alleging the sponge to be poisonous or destructive, was held by Alderson, J., to be bad. Powell's case, 4 C. & P. 571.* Eng. Com. Law Reps. xxxiv. 341. Id. xix. 423. h Id. xxxviii. 152. * Id. xix. 533. Id. xlvii. 589. In an indictment for murder the prisoner was charged with administering "a certain deadly poison." It was held that the word "deadly" might be regarded as surplusage, and that it would be sufficient to show that the substance administered was capable of destroying life, without showing it to be what is usually called deadly. R. v. Haydon, 1 Cox, C. C. 184. Administering poison, with intent to murder, is not a crime which includes an assault within the 11th section. R. v. Dilworth, 2 Moo. & R. 531; R. v. Draper, 1 C. & K. 176.1 Proof of attempts to drown, &c.] A similar enactment to that contained in the 9 Geo. 4, c. 31, occurs in the 10 Geo. 4, c. 38, relating to Scotland, and upon this it has been observed, that the clause regarding attempts to suffocate, strangle, or drown, requires only the application of personal violence, with the intent to murder, &c., and does not also require a serious injury to the person. It will be sufficient, therefore, if the accused have laid hold of another, and attempted to throw him into a draw-well, or deep river, or has striven to strangle or suffocate him, although no lasting injury has resulted from the attempt. Allison's Prin. Crim. Law of Scot. 171. By the recent act the offence is the same, although no bodily injury has been inflicted, see ante, p. 777. The prisoner was indicted under the 9 Geo. 4, c. 31, s. 11, for an attempt to drown two boys. There was a disputed right of ferry over the river Ouse. Two little boys having succeeded in punting a boat from the opposite shore, were attempting to land. The prisoner attacked the boat with his boat-hook, in order to prevent them, and by means of the holes which he made in it, caused the boat to fill with water, and then pushed it away from the shore, whereby the boys were in peril of being drowned. It appeared, however, that the prisoner, if he had wished it, might have easily got into the boat, and thrown the boys into the water, instead of which, he confined his *attack to the boat itself, as if to prevent [*780] their landing, but apparently regardless of the consequence which might ensue from the means employed. Coltman, J., stopped the case, being of opinion that an assault in fact, upon the boys, ought to have been proved; seeing that the prisoner had the opportunity of attacking them personally, which he did not do, and the means by which he attacked the boat, indicating an intention rather to prevent their landing, than to do them any injury. Sinclair's case, 2 Lew. C. C. 49. Proof of shooting, &c., with intent to murder, &c.] Under Lord Ellenborough's act, the words of which were substantially the same as those of the 9 Geo. 4, c. 31, and of the recent statute, it was ruled, that firing at a person with a gun loaded with paper and powder only, might be within the statute. In a case of this kind, Le Blanc, J., directed the jury, that though the pistol was loaded with gunpowder and paper only, if the prisoner fired it so near to the person of the prosecutrix, and in such a direction that it would probably kill her, or do her some grievous bodily harm, and with intent that it should do so, the case was within the statute; but he desired them, in case they found the prisoner guilty, to say whether they were satisfied that the pistol was loaded with any destructive material besides gunpowder and paper or not. The jury found the prisoner guilty, and said they were satisfied that the pistol was loaded with some other destructive material. The prisoner being convicted, the judges, on a case reserved, held the conviction right. Kitchen's 1 Eng. Com. Law Reps. xlvii. 176. case, Russ. & Ry. 95. Upon an indictment under the same statute, for priming and levelling a blunderbuss, loaded with gunpowder and leaden shot, and attempting, by drawing the trigger, to discharge the same, with intent to murder, the jury found that the blunderbuss was not primed when the prisoner drew the trigger, but found the prisoner guilty. On a case reserved, a majority of the judges considered the verdict of the jury as equivalent to finding by them, that the blunderbuss was not so loaded as to be capable of doing mischief by having the trigger drawn, and if such were the case, they were of opinion in point of law, that it was not loaded within the meaning of the statute. Carr's case, Russ. & Ry. 377." So upon an indictment under the 9 Geo. 4, c. 31, for attempting to discharge a loaded pistol, by drawing the trigger, with intent, &c., the defence was, that the touch-hole was plugged: Patteson, J., said to the jury: "If you think that the pistol had its touch-hole plugged, so that it could not by possibility do mischief, the prisoner ought to be acquitted, because I do not think that a pistol so circumstanced ought to be considered as loaded arms within the meaning of the act." Harris's case, 5 C. & P. 159.o A rifle, which is loaded, but which, for want of priming, will not go off, is not a loaded arm within the third section; and the pointing a rifle thus circumstanced at a person and pulling the trigger of it, whereby the cock and hammer were thrown, and the pan opened, will not warrant a conviction, either of felony under the third, or of assault under the 11th section. R. v. James, 1 C. & K. 530.P Where the indictment alleges that the pistol was loaded with powder and a leaden bullet, it must appear that it was loaded with a bullet, or the prisoner will be acquitted. Hughes's case, 5 C. & P. 123;a and see Whitley's case, 1 Lewin, C. C. 123. [*781] *Where the indictment charges that the prisoner feloniously assaulted J. H., and by feloniously "drawing the trigger of a certain pistol, loaded with gunpowder and a leaden bullet, then and there feloniously and maliciously did attempt to discharge the said pistol at the said J. H." with intent to murder him, it is good, without stating that "the said pistol" was so loaded as aforesaid. R. v. Baker, 1 C. & K. 254.* In the same case it was held that if the jury thought that the pistol was not so primed and loaded that it could go off, they should acquit the prisoner, and ought not to find him guilty of an assault under the 11th section of the statute 7 Wm. 4, and 1 Vict. c. 85. Where the prisoner, by snapping a percussion-cap, discharged a gun-barrel, detached from the stock; Patteson, J., held this to be a "shooting at" with "loaded arms," within the 9 Geo. 4, c. 31, and after consulting several of the judges, refused to reserve the point. Coates's case, 6 C. & P. 394.o Where the prisoner fired into a room in which he supposed the prosecutor to be, but in point of fact he was in another part of his house where he could not by possibility be reached by the shot; Gurney, B., held that the indictment could not be supported. Lovell's case, 2 Moo. & R. 30. An indictment for maliciously shooting at A. B. is supported, if he be struck by the shot, though the gun be aimed at a different person. R. v. Jarvis, 2 Moo. & R. 40. Some act must be done to prove an attempt to discharge fire-arms. Merely presenting them is not sufficient. R. v. Lewis, 9 C. & P. 523. If a person intending to shoot another, put his finger on the trigger of a loaded fire-arm, but m 1 Eng. C. C. 95. 9 Id. xxiv. 241. n Id. 377. 0 Eng. Com. Law Reps. xxiv. 254. P Id. xlvii. 530. r Id. xlvii. 254. t Id. xxxviii. 207. • Id. xxv. 455. is prevented from pulling the trigger, this is not an attempt to discharge loaded arms within the statute. R. v. St. George, 9 C. & P. 483." Proof of stabbing or cutting.] Lord Ellenborough's act, 43 Geo. 3, c. 58, did not contain, like the later statutes, the word wound in the corresponding enactment. The words are all intended to express a different mode of inflicting the injury. Thus where the prisoner was indicted under 43 Geo. 3, for striking and cutting with a bayonet, and the surgeon stated that the wound was a punctured triangular one, the prisoner being convicted, the judges, on a case reserved, were of opinion, that as the statute used the words in the alternative "stab" or "cut" so as to distinguish between them, the distinction must be attended to in the indictment, and they held the conviction wrong. M'Dermot's case, Russ. & Ry. 356. A striking over the face with the sharp or claw end of a hammer, producing a wound or cut, was held to be a cutting within the same statute. Atkinson's case, Ibid. 104. It is not necessary, in order to render the injury a cutting, that it should be effected with an instrument adapted for the purpose of cutting, and, therefore, when it was inflicted with an iron adapted for the purpose of forcing open doors, drawers, chests, &c., the prisoner being convicted of cutting, the judges held the conviction to be correct. R. v. Hayward, Russ. & Ry. 78.* But a blow from a square iron bar, which inflicted a contused or lacerated wound, was held not to be a cutting within the act. Adam's case, cor. Lawrence, O. B. 1 Russ. by Grea. 728. So where a similar wound was given on the head by a blow with the metal scabbard of a sword, by a yeomanry man (the sword being in the scabbard at the *time.) Whitfield's case, cor. Bayley, J., 1 Russ. by [*782] Grea. 728. So a blow with a handle of a windlass, though it made an incision. Anon. cor. Dallas, 5 Ev. Col. Stat. part v. p. 334, (n.); 1 Russ. by Grea. 728. The authority of these latter cases may perhaps be doubted, since the decision of Atkinson's case, (supra), in which the nature of the injury and not of the instrument, appears to have been considered the proper test of decision. See 2 Stark. Ev. 500 (n.), 2d ed. Proof of wounding.] Where the prisoner is indicted for wounding, it must appear that the skin was broken, a mere contusion is not sufficient. Where the prisoner had struck the prosecutor with a bludgeon, and the skin was broken, and blood flowed; Patteson, J., said, that, it was not material what the instrument used was, and held the case to be within the statute. Payne's case, 4 C. & P. 558. In a case which occurred before Littledale, J., on the Oxford circuit, he directed a prisoner to be acquitted, it not appearing that the skin was broken or incised. Anon. cited 1 Moo. C. C. 280. See Moriarty v. Brooks, 6 C. & P. 684. But in a case which came soon afterwards before Park, J., where there was no proof of an incised wound, the learned judge told the jury that he was clearly of opinion that it need not be an incised wound, for that he believed the act of parliament (9 Geo. 4,) had introduced the word wound for the purpose of destroying the distinction, which, as the words in the old statute were only stab or cut, it was always necessary to make between the contused and incised wounds, and that it was not necessary, either that the skin should be broken or incised, or that a cutting instrument should be used, for that otherwise the thing intended to be remedied by the new act would remain as before. The prisoner being found guilty, the case was reserved for the decision of the judges, amongst whom there was con |