Where the offence is charged to have been committed with intent to obstruct, &c., a lawful apprehension, it must be shown that the offender had some notification of the purpose for which he was apprehended before he inflicted the wound. Upon an indictment on the 43 Geo. 3, c. 58, it appeared that, in the morning of the day mentioned in the indictment, the prisoner stole some wheat from an out*996] house belonging to one Spilsbury; and the *wheat being soon after found concealed in an adjoining field, Spilsbury, Webb, and others, watched near the spot, expecting that the thief would come to carry it away, and that they should thus be able to discover and apprehend him. In the course of the day the prisoner and another man walked into the field, and lifted up the bag containing the wheat. They were immediately pursued; and Webb seized the prisoner, without desiring him to surrender, or stating for what reason he was apprehended. A scuffle ensued, during which, before Webb had spoken, the prisoner drew a knife, and cut him across the throat. Lawrence, J., held that, as Webb did not communicate to the prisoner the purpose for which he seized him, the case did not come within the statute for if death had ensued, it would only have been manslaughter. But he said, that if a proper notification had been made before the cutting, the case would have assumed a different complexion.(m)

But where, in a case somewhat similar, the goods had been concealed by the thief in an outhouse, 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 many attempts to cut his throat, the prisoner was convicted and executed.(n)

So where upon a count of an indictment which charged the prisoner with maliciously wounding the prosecutor with intent to resist his apprehension for an offence for which he was liable to be apprehended, viz., for wilfully and maliciously committing damage upon certain plants and roots growing in a certain garden, it appeared that the prosecutor, a constable of the Metropolitan Police Force, while on duty, found the prisoner in the night-time in an enclosed garden, stooping down. close to the ground, on which the prisoner ran away, and the prosecutor ran after him, and caught him getting over a hedge, and he was then in the garden; he caught him by the collar of the jacket, on which the prisoner drew a knife, and cut the prosecutor on the forehead between the eyes, and in a scuffle which ensued in several other places. The prisoner when found was cutting or plucking some pickatees and carnations. The jury found that the prisoner had wilfully and maliciously plucked and cut flowers from plants or roots in the garden, with intent to steal the flowers, and that he was found by the prosecutor, who belonged to the police force, committing that offence, but that the prosecutor did not inform the prisoner by word of mouth that he did belong to the police force; and that the

prisoner had the knife in his hand at the time *with which he had been

*997] cutting the flowers; and found him guilty on the above count. Littledale, J., reserved the question whether, considering the finding of the jury, the offence committed by the prisoner fell within the 42d or 43d sections of the 7 & 8 Geo. 4, c. 29, or the 22d, 23d, or 24th sections of the 7 & 8 Geo. 4, c. 30. Supposing the offence fell within either of these statutes, there did not appear to the learned Judge much doubt as to the authority of the prosecutor to apprehend him under the 63d section of the one Act, or the 28th of the other, as the case might be, so as to prove this count; and upon consideration the Judges held the conviction right upon this count.(0)

(m) Rex v. Ricketts, 3 Camp. 68. The prisoner was afterwards found guilty of larceny in stealing the wheat. It seems to me that this decision may well be doubted, as the facts must have told the prisoner for what he was apprehended See the cases on this subject, ante, p. 835. C. S. G.

(n) Rex v. Robinson, cor. Wood, B., Lancaster; 2 Stark. Ev. 693, note (k).

(0) Rex v. Fraser, R. & M. C. C. R. 419. It should be observed that the count was

Upon an indictment for shooting with intent to do grievous bodily harm, it appeared that the prisoner, being a constable, was employed to guard a copse from which wood had been stolen, and for this purpose he carried a loaded gun. From this copse he saw the prosecutor come out, carrying wood which he was stealing, and called to him to stop. The prosecutor ran away, and the prisoner, having no other means of bringing him to justice, fired and wounded him in the leg. It was alleged that the prosecutor was actually committing a felony, he having been before repeatedly convicted of stealing wood; but these convictions were unknown to the prisoner, and there was no reason for supposing that he knew the difference between the rules of law relating to felony and those relating to less offences. Erle, J., told the jury, that "shooting with intent to do grievous bodily harm amounted to the felony charged, unless from other facts there was a justification; and that neither the belief of the prisoner that it was his duty to fire, if he could not otherwise apprehend the prosecutor; nor the alleged felony, it being unknown to him, constituted such justification." The jury convicted; and, upon a case reserved, the Judges were unanimously of opinion that the prisoner was not justified in firing at the prosecutor, because the fact that the prosecutor was committing a felony was not known to the prisoner at the time, and therefore the conviction was right.(p)

In a case where a point was made, whether the shooting with which the prisoner was charged was by accident or design, it was held, that proof might be given that the prisoner at another time shot intentionally at the same person. Pearce, the prosecutor, who was a gamekeeper, proved that he met the prisoner sporting upon his manor, and remonstrated with him for so doing; and proposed that the prisoner should go with him to the steward, saying, that if the steward would pardon him he should have no *objection. The prisoner assented to go with him, and [*998 they walked together until they came near to the gamekeeper's horse, which was about sixty yards off, when Pearce went on before him towards the horse; and when he was at a short distance from the prisoner, the prisoner fired at his back, but said nothing. Pearce attempted to turn round, and saw the prisoner running, and attempted to run after him; but his back seemed to be broken, and he could not follow. He then turned back to the horse; and, after getting upon it, was making his way home to a place about two miles off, and had got about half a mile on the road, at a place where there was a hedge on each side, when he saw the prisoner again in the lowest part of one of the hedges; and the moment he looked round at him the prisoner again fired his gun, the discharge from which beat out one of Pearce's eyes and several of his teeth, but did not cause him to fall from his horse. Between the first and second firing was about a quarter of an hour. In the course of the trial it was suggested, that the prosecutor ought not to give evidence of two distinct felonies; but the learned Judge thought it unavoidable in this case, as it seemed to him to be one continued transaction, in the prosecution of the general malicious intent of the prisoner. Upon another ground also the learned Judge thought such evidence proper. The counsel for the prisoner, by his crossexamination of Pearce, had endeavored to show, that the gun might have gone off the first time by accident; and, although the learned Judge was satisfied that this was not the case, he thought that the second firing was evidence to show, that the first, which had preceded it only a quarter of an hour, was wilful; and to remove the doubt, if any existed, in the minds of the jury. The prisoner having been convicted, the matter was submitted to the consideration cf the Judges, who were of

framed on the 7 & 8 Geo. 4. c. 30, s. 21, for maliciously committing damage upon the plants, but the jury found that the prisoner cut the flowers with intent to steal them, which is an offence within the 7 & 8 Geo. 4, c. 29, s. 42. It may be doubted, therefore, whether the evidence supported the count. Another question arose on another count as to the construction of the 10 Geo. 4, c. 44, s. 7 (the Metropolitan Police Act), but upon that no opinion was given. C. S. G.

(p) Reg. v. Dadson, 2 Den. C. C 35. It is not stated, but must be assumed that the prosecutor had cut down the wood he was carrying away, and that he had previously been summarily convicted before justices for a like offence. According to the statement in the case, all the prisoner saw was that the prosecutor was carrying wood away; in fact, was committing a felony; but it must be assumed the evidence showed that the prisoner knew the wood had just been cut down.

opinion, that the evidence was properly received, and the prisoner rightly convicted.(q)

In a case of an attempt to poison, evidence of former and also of subsequent attempts of a similar nature are admissible.(r)

It was also necessary, in proceeding upon the same clause of the 43 Geo. 3, c. 58, to show that the person apprehending acted under proper authority. For, where it appeared that the prisoner having previously cut a person on the cheek, several others, who were not present when the transaction took place, went to his house to apprehend him, without any warrant, and, upon their attempting to take him into custody, he inflicted the wound upon which the indictment was founded; Le Blanc, J., was of opinion, that the prosecution could not be sustained. He said, that to constituted an offence within this branch of the statute, there must be a resistance to a person having a lawful authority to apprehend the prisoner. in order to which the party must either be present when the offence was committed, or he must be armed with a warrant; and that 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.(s)

*999] Where the intent charged in three of the counts was, an intent to prevent a lawful apprehension; and, in the fourth, an intent to do the prosecutor some grievous bodily harm; and, from the nature of the facts, the case turned upon the last count only, a point was made on behalf of the prisoner, that no grievous bodily harm was done, as the cut was upon the wrist, and did not appear to have been dangerous, as it got well in about a week; and the prisoner's counsel relied upon a doubt expressed by Bayley, J.,(t) whether the injury done was a grievous bodily harm contemplated by the Act, the wound not being in a vital part. Another objection was also taken upon the facts; from which it appeared, that the prisoner having been apprehended by one Headley, in an attempt to break into his stable in the night, and taken into Headley's house, threatened Headley with vengeance, and endeavored to carry his threats into effect with a knife which had been laid before him, in order that he might take some refreshment; and, in so doing, cut the prosecutor Cambridge, one of Headley's servants, who, with Headley, was trying to take away the knife; the act happened in that struggle, and perhaps not designedly, as against Cambridge. Upon these facts, it was objected that there was no evidence of malice against the prosecutor, but against Headley only; and that upon the 43 Geo. 3, c. 58, general malice was not sufficient, as in the case of murder, and that malice against the particular individual was necessary.(u) A further objection was made, that the prisoner was not lawfully in custody, there being no warrant; and an attempt to commit felony being only a misdemeanor. The jury, who found the prisoner guilty, stated that the thrust was made with intent to do grievous bodily harm to anybody upon whom it might alight, though the particular cut was not calculated to do so. Upon a case reserved, the Judges were of opinion that, if there was an intent to do grievous bodily harm, it was immaterial whether grievous bodily harm was done; that general malice was sufficient under the 43 Geo. 3, c. 58, without any particular malice against the person cut; and that, as the prisoner was detected in the night attempting to commit a felony, he might be lawfully detained without a warrant, until he could be carried before a magistrate.(v)

In a case upon the 43 Geo. 3, c. 58, the prosecutor and some other men had got

(9) Rex v. Voke, R. & R. 531.

(r) 2 Stark. Ev. 692. No authority is cited for this position; but see Rex v. Mogg, 4 C. & P. 364 (19 E. C. L. R.) where, on an indictment for administering poison to horses with intent to kill them, Park, J. A. J., held other acts of administering admissible to prove the intent, and Reg. v. Geering and other cases, post, tit. Evidence. C. S. G..

(8) Rex v. Dyson, cor. Le Blanc, J., York Spr. Ass. 1816; 1 Starkie N. P. R. 246 (2 C. L. R.). See the cases as to the authority to apprehend, collected in the chapter on "Resisting Officers and others," ante, p. 798, et seq.

(1) Rex v. Akenhead, Holt N. P. C. 470, post, p. 1000.

(u) Curtis v. The Hundred of Godly, 3 B. & C. 248 (10 E. C. L. R.), was cited, a case upon the Black Act.

(v) Rex v. Hunt, R. & M. C. C. 93; Rex v. Griffith, 1 C. & P. 298 (12 E. C. L. R.), 8. P., as to bodily harm, Park, J. A. J. See Rex v. Howarth, ante, p. 816.

hold of a woman, who, as they conceived, had been using another person ill, and said that she deserved to be ducked in a trough, which was near; but it did not appear that they intended to duck her. The prisoner, who was at some distance at the time, on being informed that they were using the woman ill, exclaimed, "I have got a good knife," rushed immediately to the place where she was, entered among the crowd, and *instantly struck the prosecutor on the shoulder with [*1000 the knife. The prosecutor turned round upon him; a struggle ensued between them; and in that struggle the prosecutor received other wounds. After they had fought for some time, the prisoner dropped the knife and ran away. The wound upon the prosecutor's shoulder was about seven inches long, and two deep; and the lap of one of his ears was cut. There was likewise a slight wound on the gland of his neck, and a cut on his left arm. The counsel for the prisoner objected, that the first count of the indictment, which stated an attempt to murder, &c., and the second count, which stated an attempt to maim, disfigure, and disable, could not be supported; and that the only question was upon the third count, which stated an intent to do some grievous bodily harm. And upon this question, he submitted, that the wounds were not of that kind from which grievous bodily harm could ensue; that the transaction was a scuffle, in which a knife was used accidentally, without any settled design to "maim, disfigure, or disable," or to do "other grievous bodily harm to the prosecutor; and also that the wounds were not inflicted in a part of the body which could produce such a consequence. Bayley, J., entertained some doubts on the case; which appear to have proceeded principally on the grounds that the wounds were not in a vital part; that it was questionable whether the injury done was a grievous bodily harm contemplated by the Act; and whether, if death had ensued, the crime would have been more than manslaughter. And, taking all the circumstances of the case into consideration, he directed the jury to acquit the prisoner. (w)

It was once held on an indictment under the 9 Geo. 4, c. 31, which charged the prisoner with shooting at A. with intent to murder A., that the prisoner could not be convicted if the jury found that he shot at A. intending to shoot at B., and that he did not intend to do A. any harm. An indictment charged the prisoner, in one set of counts, with shooting at Hill, with intent to murder Hill; and in another set with shooting at Lee, with intent to murder Lee; and it appeared that the prisoner having ill will against Lee, went to his house, and called to him to come out and be killed; and Hill, who was in the parlor with Lee, went into the hall, and the prisoner instantly fired a pistol at him, but without doing him any injury; it was objected that the prisoner must have shot at a person with intent to kill that person, and that here there was no intent to injure Hill. On the part of the crown, Rex v. Hunt(x) was cited. Littledale, J.: "If it had not been for the case of Rex v. Hunt, I should have felt little difficulty. The question I shall leave to the jury is, whether the prisoner intended to injure Mr. Hill. But I shall tell them, that a man must be taken to intend the consequences of his acts." His lordship said, in summing up, "If this had been a case of murder, and the prisoner intending to murder one person, had, by mistake, murdered another, he would be equally liable to be found guilty. The question, however, may be different on the construction of this Act of Parliament. There is no doubt that the prisoner shot at Mr. Hill, and that, if death had ensued, the offence would have *amounted to murder; and then it will be for you to say, whether the [*1001 prisoner intended to do Mr. Hill some grievous bodily harm. It certainly appears that he did not so intend in point of fact. However, the law infers that a party intends to do that which is the immediate and necessary effect of the act which he commits." The Foreman of the jury: "We find him guilty of shooting at Mr. Hill, with intent to do Lee some grievous bodily harm." Littledale, J.: "There is no count for that. Do you find him guilty of shooting at Lee?" The Foreman: "No; he fired at Hill, intending to fire at Lee." Littledale, J.: "Do you find that he intended to do harm to Hill?" The Foreman: "We find that he

(w) Rex v. Akenhead, 1 Holt's N. P. R. 469 (3 E. C. L. R ).
(x) Supra, note (v).

did not intend to do any harm to Hill." Littledale, J.: "A verdict of not guilty must be recorded." (y)

But this case can no longer be considered as an authority. Upon an indictment on the same statute, in the first count for shooting at Lockyer, and in the second for shooting at Hole, it appeared that Hole, who was a gamekeeper, and Lockyer came up to some poachers, when the prisoner levelled his gun at Hole, who was in advance, but missed him and hit Lockyer. The counsel for the prosecution had elected to proceed on the count charging the shooting at Lockyer. The counsel for the prisoner contended, that the prisoner could not be convicted in point of law of shooting at Lockyer with intent to injure him, inasmuch as the person aimed at, according to the evidence, was another, and Lockyer was only struck accidentally. Gurney, B., in summing up, told the jury it was perfectly immaterial for whom the shot was intended. If a man laid poison for one person, and another took it and died, it would be murder; so a blow aimed at one person and killing another, would make the party equally answerable.(z)

On an indictment for wounding with intent to do grievous bodily harm, it appeared that the prisoner had recently had a quarrel with another man in a publichouse, and had waited outside for the purpose of attacking him when he should come out the prosecutor, with whom the prisoner had had no dispute, was the first to leave the house, and being mistaken by the prisoner for his former antagonist, he gave him the wound in question. It was contended that the intent was not proved, and Rex v. Holt(a) was cited. Alderson, B.: "If Rex v. Holt lays down the position you contend for, I shall certainly overrule it. I do not think it is either law or good sense. I shall direct the jury, that if they think the prisoner did to the prosecutor what he intended to do to another man, they must find him guilty."(b)

Upon an indictment for wounding W. Taylor with intent to murder him, it appeared that the prisoner intended to murder one Maloney; and, supposing Taylor to be Maloney, shot at and wounded Taylor; and the jury found that the prisoner intended to murder Maloney, not knowing that the party he shot at was Taylor, but supposing him to be Maloney, and that he intended to *murder the indi*1002] vidual he shot at, supposing him to be Maloney, and convicted the prisoner; and, upon a case reserved, it was held that the conviction was right, for, though he did not intend to kill the particular person, he meant to murder the man at whom he shot.(c) Where on an indictment for wounding with intent to do grievous bodily harm to the prosecutor, it appeared that the prisoner with a knife struck at Withy, and the prosecutor interfered and caught the blow on his arm; Crowder, J., held that this would not sustain the charge; but the prisoner might be convicted of unlawfully wounding (d)

Under the 9 Geo. 4, c. 31, s. 11, it was held, that if a party sent poison with intent to kill one person, and another person took that poison, it was just the same as if the poison had been intended for the person who took it. Upon an indictment on the 9 Geo. 4, c. 31, s. 11, for administering poison to E. Davis, it appeared that a parcel of sugar and tea, with poison in it, directed "to be left at Mrs. Daws, Fownhope," was left on a shop counter, and afterwards delivered to a Mrs. Davis, who used some of the sugar, and was made very ill by it. Gurney, B.: "The question is, whether the prisoner laid this poison on the shop counter, intending to kill some one. If it was intended for Mrs. Daws, and finds its way to Mrs. Davis,

(y) Rex v. Holt, 7 C. & P. 518 (32 E. C. L. R.). Littledale, J., considered the second set of counts quite out of the question. His Lordship said, in the course of the case, "Suppose this had been laid at common law as an assault, with intent to murder A., would that charge be proved by showing that the prisoner intended to murder B.? Perhaps that is almost idem per idem."

(2) Rex v. Jarvis, 2 M. & Rob. 40.
(b) Reg. v. Lynch, 1 Cox C. C. 361.

(a) Supra.

(c) Reg. v. Smith, Dears. C. C. 559. This decision fully accords with my note infra (g).

(d) Reg. v. Hewlett, 1 F. & F. 91. In this case there was no intent to injure the person wounded; it is therefore quite different from the cases where, though there is a mistake as to the person, the injury is intended for the person on whom it falls.