the prisoner with cutting M. E., with intent to do her some grievous bodily harm; it appeared that the prisoner cut the private parts of a girl, ten years of age, Graham, B., told the jury, that they were to consider whether this was not a grievous bodily injury to the child, though eventually not dangerous. As to the intent, though it probably was the prisoner's intention to commit a rape, yet, *if [ *788 ] to effect the rape, he did that which the law makes a distinct crime, viz., intentionally did the child a grievous bodily harm, he was not the less guilty of that crime, because his principal object was another. He added, that the intention of the prisoner might be inferred from that act. The jury found the prisoner guilty, and on a case reserved, the judges held the conviction right. Cox's case, Russ. & Ry. 362; and see Gillow's case, 1 Moody, C. C. 85," ante, p. 785. Proof of intent-to prevent lawful apprehension or detainer.] The statute only makes it an offence when the injury is done to prevent a lawful apprehension or detainer; and therefore, the prosecutor must show that the arrest, or intended arrest was legal. Duffin's case, Russ. & Ry. 365. The prisoner having previously cut a person on the cheek, and several others, who were not present when the transaction took place, went to apprehend him without any warrant, and on their attempting to take him into custody, he stabbed one of them. Le Blanc, J., was of opinion that the prosecution could not be sustained. He said that, to constitute an offence within this branch of the statute, there must be a resistance to a person having lawful authority to apprehend the prisoner, in order to which the party must either be present when the offence was committed, or must be armed with a warrant. (Vide ante, p. 745.) This branch of the statute was intended to protect officers and others armed with authority, in the apprehension of persons guilty of robberies or other felonies. Dyson's case, 1 Stark. N. P. 246. In order to render a party guilty of the offence of wounding, &c., with intent to prevent his lawful apprehension, it must appear that he had notice of the authority of the officer; for, if he had no such notice, and death had ensued, it would only be manslaughter. Ante, p. 754. Some wheat having been stolen was concealed in a bag in a hedge. The prisoner and another man came into the field and took up the bag. They were pursued by the prosecutor, who seized the prisoner without desiring him to surrender, or stating for what reason he was apprehended. A scuffle ensued, during which, before the prosecutor had spoken, the prisoner drew a knife and cut him across the throat. On an indictment for cutting, with intent to prevent apprehension, Lawrence, J., said, as the prosecutor did not communicate to the prisoner the purpose for which he seized him, the case does not come within the statute. If death had ensued, it would only have been manslaughter. Had a proper notification been made before the cutting, the case would have assumed a different complexion. The prisoner must be acquitted on this indictment. Rickett's case, 3 Campb. 68; and see ante, p. 754. But where, in a case somewhat similar to the preceding, the goods had been concealed by the thief in an out-house, and the owner, together with a special constable under the watch and ward act, waited at night to apprehend the thief when he came to take away the goods, and the prisoner and another came at night, and removed the goods from the place where they were deposited, and upon an attempt to apprehend them the prisoner fled, and was pursued by the owner of the goods, who cried out after him several times in a loud voice "Stop thief!" and on being overtaken the prisoner drew a knife, with which he cut the hands of the prosecutor, and made several attempts to cut his throat, the prisoner was 1 Eng. C. C. 362. b Eng. Com. Law Reps. ii. 376. * 2 id. 85. a 1 id. 365. [*789] convicted and executed. *Robinson's case, cor. Wood, B., 2 Stark. Ev. 501,(n.) 2d ed.; and see ante, p. 754, as to notification of an officer's character, &c. Where a police constable, on being sent for at a late hour of the night to clear a beer-house, did so, and told one of the persons on leaving the house to go away, who refused and used threatening language, and cut the constable with a knife;. Williams, J., held that the constable was justified in laying hands on the party to remove him. The prisoner, who was indicted for cutting with intent, &c., was found guilty. Hem's case, 7 C. & P. 312.° The prisoner was indicted for cutting, &c., with intent to murder, and also with intent to do grievous bodily harm. It appeared that a constable having a warrant to arrest the prisoner, gave it to his son, who, in attempting to take the prisoner into custody was stabbed by him with a knife which he happened to have in his hand at the time, the constable then being in sight, but a quarter of a mile off; Parke, B., held that the arrest was illegal, and that the prisoner must be acquitted. Patience's case, 7 C. & P. 775.d The prisoner asked permission at the house of the prosecutor to take some ashes, which he was allowed to do, but as he was coming out the prosecutor's apprentice saw a copper tea-kettle among the ashes in the prisoner's basket, and told the prosecutor. The latter laid hold of the prisoner to secure him on the charge of stealing the tea-kettle, and in the scuffle both fell, when the prisoner cut the prosecutor with a knife. Alderson, B., held this to be a wounding within the recent statute, provided the jury were satisfied that the prisoner had stolen the kettle, as the prosecutor then had a right to apprehend him. Price's case, 8 C. & P. 282. Proof of the intent-principals aiding and abetting.] Where several persons are engaged in the commission of a felony, and one of them commits an offence within the statute, a question arises how far the others are to be considered as sharing in his guilt. Where three persons, engaged in committing a felony, were surprised by the watchman, and two of them made their escape, and the third afterwards, in attempting to make his escape in a different direction, cut the watchman; upon an indictment, charging both him and one of the other prisoners (Richardson,) with an offence under the 43 Geo. 3, Graham, B., directed the jury, that if the prisoners came with the same illegal purpose, and both determined to resist, the act of one would fix guilt upon both, and that it might have been part of the plan to take different ways. The prisoners were found guilty; but on a case reserved, the judges were of opinion that there was no evidence against Richardson. White's case, Russ. & Ry. 99. Two private watchmen, seeing the prisoner and another person with their carts loaded with apples, went to them, intending, as soon as they could get assistance, to secure them; one walking at the side of each of the me men. The other man wounded the watchman near him. The prisoner being indicted for this offence, under the 9 Geo. 4, it was held that the jury must be satisfied that he and the other man had not only gone out with a common purpose of stealing apples, but also of resisting with violence any attempt to apprehend them. Collison's case, 4 C. & P. 565.8 [*790] It is not necessary, in order to convict the prisoner, that he should *appear to be the person who actually fired the shot. In an indictment, on the 43 d Id. 730. • Id. xxxiv. 390. '1 Eng. C. C. 99. Eng. C. L. Reps. xix. 529. Eng. C. L. Reps. xxxii. 522. Geo. 3, the three first counts stated, in the usual form, that J. S. did shoot at A. B., and went on to state that M. and N. were present aiding and abetting. The three last counts stated that an unknown person did shoot at A. B., &c., and that J. S. and M. N. were present aiding and abetting the said unknown person in the felony aforesaid, to do and commit, and were then and there knowing of and privy to the commission of the said felony, against the statute, &c.; but they omitted to charge them with being feloniously present, &c. There was no evidence to show that J. S. was the person who fired. It was objected that the prisoners could not be convicted on the first set of counts, because the jury had negatived the firing by J. S.; nor on the second set, because the word "feloniously" was omitted. Graham, B., said that the objection was founded upon a supposed difference in the act of shooting, &c., and the being present, &c., at it; whereas the act of parliament had made no degrees, no difference of offence, and that the plain meaning and necessary construction of the act was, that if the parties were present, knowing, &c., they and every one of them shot, and that the charge of feloniously shooting applied to every one of them. The prisoners being convicted, all the judges thought that the conviction was right. Towle's case, Russ. & Ry. 314. See Bowen's case, ante, p. 785. When A. was charged under the 7 Wm. 4 and 1 Vict. c. 85, s. 2, with inflicting an injury dangerous to life, with intent to murder, and B. was charged with aiding and abetting him; Patteson, J., held that it was essential, in order to make out the charge as to B., that B. should have been aware of A.'s intention to commit murder. Cruse's case, 8 C. & P. 541.i Impeding persons endeavouring to escape from wrecks.] The present seems to be the most appropriate head under which to place the following provision. By the 7 Wm. 4 and 1 Vict. c. 89, s. 7 (E. & I.), "whosoever shall by force prevent or impede any person endeavouring to save his life from any ship or vessel which shall be in distress, or wrecked, stranded, or cast on shore, whether he shall be on board or shall have quitted the same, 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 the natural life of such offender, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years." For the other clauses of the above act, see ante, p. 676, &c. By the Irish statute, the 10 Geo. 4, c. 34, s. 8, "all persons conspiring, confederating, and agreeing to murder any person shall be guilty of felony, and being convicted thereof shall suffer death as felons." By s. 9, "every person who shall solicit, encourage, persuade, or endeavour to persuade, or who shall propose to any person to murder any other person, shall be guilty of felony, and being convicted thereof shall suffer death as a felon." These clauses are peculiar to the law of Ireland. 1 Gabbett's Crim. Law of I., p. 259. 1 Eng. C. C. 814. i Eng. Com. Law Reps. xxxiv. 522. Proof of the public nature of the nuisance Proof of the degree of annoyance which constitutes a public nuisance Proof with regard to length of time Proof of particular nuisances Particular trades Corrupting the waters of public rivers Railways and steam-engines Acts tending to produce public disorders, and acts of public indecency Disorderly inns Gaming-houses 791 792 792 793 794 794 794 794 795 795 795 796 797 797 797 797 798 798 799 A public or common nuisance is such an inconvenient or troublesome offence as annoys the whole community in general, and not merely some particular person; and therefore this is indictable only, and not actionable. 4 Bl. Com. 167. Proof of the public nature of the nuisance.] The existence of the matter as a public nuisance depends upon the number of persons annoyed, and is a fact to be judged of by a jury. White's case, 1 Burr. 337. Thus where a tinman was indicted for the noise made by him in carrying on his trade, and it appeared that it only affected the inhabitants of three sets of chambers in Clifford's Inn, and that the noise might be partly excluded by shutting the windows; Lord Ellenborough ruled that the indictment could not be maintained, as the annoyance, if any thing, was a private nuisance. Lloyd's case, 4 Esp. 200. But a nuisance near the highway, whereby the air thereabouts is corrupted, is a public nuisance. Pappineau's case, 2 Str. 686. Making great noises in the night, as with a speaking-trumpet, has been held to be an indictable offence, if done to the disturbance of the neighbourhood. Smith's [*792] case, 1 Str. 704. So keeping dogs *which make noises in the night, is said to be indictable. 2 Chitty's Cr. Law, 647. So the keeping of hogs in a town is not only a nuisance by statute (2 W. & M. sess. 2, c. 8, s. 20) but also at common law. Wigg's case, 2 Ld. Raym. 1163. It is now settled that the circumstance, that the thing complained of furnishes upon the whole, a greater convenience to the public than it takes away, is no answer to an indictment for a nuisance; see ante, p. 568.(1) Proof of the degree of annoyance which will constitute a public nuisance.] It is a matter of some difficulty to define the degree of annoyance which is necessary (1) Resp. v. Caldwell, 1 Dall. 150. Hart et al v. The Mayor, &c. of Albany, 9 Wend. 571. 582. to constitute a public nuisance. Upon an indictment for a nuisance, in making great quantities of offensive liquors near the king's highway, it appeared in evidence that the smell was not only intolerably offensive, but also noxious and hurtful, giving many persons headaches. It was held, that it was not necessary that the smell should be unwholesome, but that it was enough if it rendered the enjoyment of life and property uncomfortable. White's case, 1 Burr. 333. So it is said that the carrying on of an offensive trade is indictable, where it is destructive of the health of the neighbourhood, or renders the house untenantable and uncomfortable.(2) Davey's case, 5 Esp. 217. So it was ruled, by Abbott, C. J., in the case of an indictment for carrying on the trade of a varnish maker, that it was not necessary that a public nuisance should be injurious to health; that if there were smells offensive to the senses, it was enough, as the neighbourhood had a right to pure and fresh air. Neil's case, 2 C. & P. 485.a(3) Proof-with regard to situation.] A question of considerable difficulty frequently presents itself, as to the legality of carrying on an offensive trade in the neighbourhood of similar establishments, and as to the length of time legalizing such a nuisance. Where the defendant set up the business of a melter of tallow in a neighbourhood where other manufactories were established, which emitted disagreeable and noxious smells, it was ruled that he was not liable to be indicted for a nuisance, unless the annoyance was much increased by the new manufactory. B. Nevill's case, Peake, 91. And it has also been ruled, that a person cannot be indicted for continuing a noxious trade which has been carried on in the same place for nearly fifty years. S. Neville's case, Peake, 93. But upon this case it has been observed, that it seems hardly reconcilable to the doctrine, that no length of time can legalize a public nuisance, although it may supply an answer to an action by a private individual. 1 Russ. by Grea. 320; vide post. It should seem, continues the same writer, that, in judging whether a thing is a public nuisance or not, the public good it does may, in some cases, where the public health is not concerned, be taken into consideration, to see if it outweighs the public annoyance. With regard to offensive works, though they may have been originally established under circumstances which would primâ facie protect them against a prosecution for a nuisance, it seems that a wilful neglect to [*793] adopt established improvements which would make them less offensive, may be indictable. 1 Russ. by Grea. 320. In a late case, of an indictment for carrying on the business of a horse-boiler, it appeared that the trade had been carried on for many years before the defendants came to the premises; but its extent was much greater under them. For the defendants, it was shown that the neighbourhood was full of horse-boilers and other noxious trades, and evidence was given of the trade being carried on in an improved manner. Lord Tenterden observing, that there was no doubt that this trade was in its nature a nuisance, said, that, considering the manner in which the neighbourhood had always been occupied, it would not be a nuisance, unless it occasioned more inconvenience as it was carried on by the defendants than it had done before. He left it, therefore, to the jury to say whether there was any increase of the nuisance; if, in consequence of the alleged improvements in the mode of conducting the business, there was no increase of annoyance, though the (2) Prout's case, 4 Rogers's Rec. 87. Eng. Com. Law Reps. xii. 226. |