various presumptions for the purpose of facilitating the evidence in proceedings. instituted under it.

By s. 130, in case of any information or proceedings had under this or any other act relating to the customs, the averment that the commissioners of her majesty's custom or excise have directed or elected such information or proceedings to be instituted, or that any vessel is foreign, or belonging wholly or in part to her majesty's subjects, or that any person detained or found on board any vessel or boat liable to seizure is or is not a subject of her majesty, or that any person is an officer of the customs, and where the offence is committed in any port in the united kingdom, the naming of such port in any information or proceedings, shall be sufficient, without proof as to such fact or facts, unless the defendant in such case shall prove to the contrary."

By s. 131, "all persons employed for the prevention of smuggling under the direction of the commissioners of her majesty's customs, or of any officer or officers in the service of the customs, shall be deemed and taken to be duly employed for the prevention of smuggling; and the averment, in any information or suit, that such party was so duly employed, shall be sufficient proof thereof, unless the defendant in such information or suit shall prove to the contrary."

And by s. 132, "if upon any trial a question shall arise whether any person is an officer of the army, navy, or marines, being duly employed for the prevention of smuggling, and on full pay, or an officer of customs or excise, evidence of his having acted as such shall be deemed sufficient, and such person shall not be required to produce his commission or deputation, unless sufficient proof shall be given to the contrary; and every such officer, and any person acting in his aid or assistance, shall be deemed a competent witness upon the trial of any suit or information on account of any seizure or penalty as aforesaid, notwithstanding such officer or other person may be entitled to the whole or any part of such seizure or penalty, or to any reward upon the conviction of the party charged in such suit or information."

And see s. 133, as to what shall be deemed sufficient evidence of an order of the treasury or of the commissioners of customs or excise.

*Limitation of prosecutions.] By the 8 and 9 Vict. s. 87, s. 134, "all [ *924 ] suits, indictments, or informations exhibited for any offence against this or any other act relating to the customs in any of her majesty's courts of record at Westminster, or in Dublin, or in Edinburgh, or in the royal courts of Guernsey, Jersey, Alderney, Sark, or Man, shall and may be had, brought, sued, or exhibited within three years next after the date of the offence committed, and shall and may be exhibited before any one or more justices of the peace within six months next after the date of the offence committed.”

All indictments under this act (except cases before justices) are to be preferred by order of the commissioners. S. 126.

Venue.] By the 8 and 9 Vict. c. 87, s. 95, "in case any offence shall be committed upon the high seas against this or any other act relating to the customs, or any penalty or forfeiture shall be incurred upon the high seas for any breach of such act, such offence shall, for the purpose of prosecution, be deemed and taken to have been committed, and such penalties and forfeitures to have been incurred, at the place on land in the united kingdom, or the Isle of Man, into which the person committing such offence, or incurring such penalty or forfeiture, shall be taken, brought, or carried, or in which such person shall be found; and in case

such place or land is situated within any city, borough, liberty, division, franchise, or town corporate, as well any justice of the peace for such city, borough, liberty, division, franchise, or town corporate, as any justice of the peace of the county within such city, borough, liberty, division, franchise, or town corporate, is situated, shall have jurisdiction to hear and determine all cases of offences against such act so committed upon the high seas, any charter or act of parliament to the contrary notwithstanding: provided always, that where any offence shall be committed in any place upon the water, not being within any county of the united kingdom, or where any doubt exists as to the same being within any county, such offence shall, for the purpose of this act, be deemed and taken to be an offence committed upon the high seas."

By s. 136, "any indictment or information for any offence against this act, or any act relating to the customs, shall and may be inquired of, examined, tried, and determined in any county of England, where the offence is committed in England, and in any county in Scotland, where the offence is committed in Scotland, and in any county in Ireland, where the offence is committed in Ireland, in such manner and form as if the offence had been committed in the said county where the said indictment or information shall be tried."

By the s. 9 Geo. 4, c. 31, s. 15, (the 10 Geo. 4, c. 34, I.) "every person convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall suffer death as a felon."(1)

This sentence may be recorded, ante, p. 245.

The clause (sec. 18) respecting the difficulty of proof with regard to the completion of the offence of rape, already stated, ante, p. 861, is applicable also to this crime; and the cases there cited, on the interpretation of that clause, are authorities here.

It is not necessary to prove that the offence was committed against the will of the party upon whom the assault is made, and if that party be consenting, both are guilty of the offence.

If it be committed on a boy under fourteen years of age, it is felony in the agent only. 1 Hale, 670; 3 Inst. 59.

In one case a majority of the judges were of opinion that the commission of the crime with a woman was indictable. Wiseman's case, Fortescue, 91; and see Jellyman's case, 8 C. & P. 604,a where Patteson, J., held that a married woman who consents to her husband committing an unnatural offence with her, is an accomplice in the felony, and as such that her evidence requires confirmation, though consent or non-consent is not material to the offence.

The act in a child's mouth does not constitute the offence. Jacob's case, Russ. & Ry. 331.b

Proof that the prisoner was addicted to such practices is not admissible, ante,

p. 81.

If the proof be insufficient to make out the offence of sodomy, the party may be

(1) Davis v. The State, 3 Har. & Johns. 154.

a

Eng. Com. Law Reps. xxxv. 547.

1 Eng. C. C. 331.

indicted for an assault with intent to commit that crime, and may be sentenced under the 9 Geo. 4, c. 31, s. 25, to two years' imprisonment. See ante, p. 297.

The setting of spring guns and man traps is made a misdemeanor by the 7 and 8 Geo. 4, c. 18 (E. & I.); by the 1st section of which it is enacted and declared, "that if any person shall set or place, or cause to be set or placed, any spring gun, man trap, or other engine calculated to destroy human life, or inflict grievous bodily harm, with the intent that the same, or whereby the same may destroy or inflict grievous bodily harm upon a trespasser, or other person coming in contact therewith, the person so setting or placing, or causing to be so set or placed, such gun, trap, or engine as aforesaid, shall be guilty of a misdemeanor."

By s. 3, it is enacted and declared, "that if any person shall knowingly and wilfully permit any such spring gun, man trap, or other engine as aforesaid, which may have been set, fixed, or left in any place, then being in or afterwards coming into his or her possession or occupation, by some other person or persons, to continue so set or fixed, the person so permitting the same to continue shall be deemed to have set and fixed such gun, trap, or engine, with such intent as aforesaid."

But by s. 4, it is provided and enacted, "that nothing in this act shall be deemed or construed to make it a misdemeanor within the meaning of this act, to set or cause to be set, or to be continued set, from sunset to sunrise, any spring gun, man trap, or other engine which shall be set, or caused or continued to be set in a dwelling-house for the protection thereof."

And by s. 2, it is also provided and enacted, "that nothing herein contained shall extend to make it illegal to set any gin or trap, such as may have been or may be usually set with the intent of destroying vermin."

Upon a prosecution on this statute, the prosecutor must prove, 1st, the setting, or causing to be set, the engine in question; and, 2, the intent to destroy or inflict grievous bodily harm. It is not, however, necessary to show an actual intent, the words of the statute being, "or whereby the same may destroy or inflict," &c., therefore, if the party sets the engine in such a place as that in reasonable probability it may inflict the injury, the offence seems complete.

If the indictment is for continuing the engine, evidence must be given that the defendant knew of its being set, and knowingly continued it.

The setting of a dog spear is not prohibited by this statute, unless perhaps it be set with intent to do grievous bodily harm to human beings. Jordin v. Crump, 8 M. & W. 782.

Statute 7 Wm. 4 and 1 Vict. c. 87, s. 7.] By the 7 Wm. 4 and 1 Vict. c. 87, (E. & I.) (by which are repealed so much of the 7 & 8 Geo. 4, c. 29, E. and 9 Geo. 4, c. 55, I.) as relates to robbery, assault with intent to commit robbery, and demanding property with menaces or by force,) it is enacted by s. 7, "that whosoever shall with menaces or by force, demand any property (which words by sect. 12, is to denote every thing included under the words "chattel, money, or valuable security" in the 7 & 8 Geo. 4, c. 29,) of any person with intent to steal the same shall be guilty of felony, and being convicted thereof, shall be liable to be imprisoned for any term not exceeding three years."

For the punishment of accessaries under this act, see ante, p. 219, and for the clause empowering the court to award hard labour and solitary confinement, see ante, p. 892.

Upon an indictment under this statute, the prosecutor must prove-1, the demand; 2, the menaces or force; 3, the intent to steal.

Proof of the demand.] There must be evidence that the prisoner demanded some chattel, money, or valuable security; but it does not appear to be necessary that the demand should be made in words, if the conduct of the prisoner amount to a demand in fact. Where the prisoners seized the prosecutor, and one of them said, "Not a word, or I will blow your brains out," and the other repeated the words, and appeared to be searching for some offensive weapon in his pocket, when, upon the prosecutor seizing him, the other prisoner ran away without any thing more being said; on an objection that this was no demand, (within the repealed statute 7 Geo. 2, c. 21, which enacts, that if any person shall, by menaces or by any forcible or violent manner, demand any money, &c., with intent, &c.,) the court said that an actual demand was not necessary, and that this was a fact for the jury, under all [*928] the circumstances of the case. The case was afterwards *disposed of on the form of the indictment. Jackson's case, 1 Leach, 267; 1 East, P. C. 419; see 5 T. R. 169.

In another case upon the same statute, but upon an indictment for an assault with an intent to rob, Willes, C. J., made the following observations on the subject of a demand. The circumstances were, that the prisoner did not make any demand, or offer to demand the prosecutor's money; but only held a pistol in his hand towards the prosecutor, who was a coachman, on his box; and per Willes, C. J., a man who is dumb may make a demand of money, as if he stop a person on the highway, and put his hand or hat into the carriage, or the like; but in this case the prisoner only held a pistol to the coachman, and said to him nothing but "stop." That was no such demand of money as the act requires. Parfait's case, 1 East, P.

C. 416. Upon this Mr. East, justly remarks, that the fact of stopping another on the highway, by presenting a pistol at his breast, is, if unexplained by other circumstances, sufficient evidence of a demand to go to a jury. The unfortunate sufferer understands the language but too well; and why must courts of justice be supposed ignorant of that which common experience teaches to all men? 1 East, P. C. 417; 1 Russ. by Grea. 767.

Where an indictment stated that the prisoner "feloniously, by menaces did. demand the moneys of the said J. K.," it was held insufficient, because it did not state from whom he had demanded them. Dunkley's case, 1 Moo. C. C. 90.*

Proof of the threat or force.] The prosecutor must show that the demand was made with menaces, or by force. With regard to the menaces they must be of the same nature, as, if the money had been delivered in consequence of them, would have constituted the offence of robbery. Vide supra. In the same manner the force used must be such as would have been sufficient to render the taking a robbery.

Proof of the intent.] The intent, as in other cases, will be proved from the circumstances under which the demand was made. The decision upon the animus furandi in robbery, (vide ante, p. 895,) may be referred to as governing the evidence in this case also.

Proof with regard to the thing demanded.] In order to bring the offence within the statute, the thing demanded must be such as the party menaced has the power of delivering up, or is supposed by the offender to have the power of delivering up. Where several persons were indicted for demanding with menaces the money of W. Gee, with intent to steal it, and it appeared that they had by duress extorted from him a cheque, (which he wrote on a paper furnished by the prisoners,) upon a banker, for a large sum of money, the offence was held not to be within the statute. Edwards's case, O. B. 6 C. & P. 515. The prisoners were afterwards charged with demanding by menaces a valuable security for money, but the court held this offence likewise not within the statute on the ground that the cheque never was in the peaceable possession of Mr. Gee. Edwards's case, Id. 521.

*Where the prisoner in one count of the indictment was charged under [ *929 ] the 7 Wm. 4 and 1 Vict. c. 87, s. 7, with demanding the moneys of the prosecutor with intent to steal the same, and it appeared that he had actually obtained money from the prosecutor; Law, recorder, said, he should hold that if menaces were used to obtain money, that count was sustained, although the money was not actually obtained. The prisoner was found guilty upon the above count, but was subsequently sentenced upon another count in the same indictment. Norton's case, 8 C. & P. 671; see ante, p. 910.

a 2 Eng. C. C. 90.

b Eng. Com. Law Reps. xxv. 518.

c Id. xxxiv. 577.