guilty of a common assault, and acquit him of the circumstances of aggravation.(w) This offence was punishable as a misdemeanor; and the punishment usually inflicted was fine, imprisonment, and the finding of sureties to keep the peace.(x) But now, by the 24 & 25 Vict. c. 100, s. 47, "Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable, at the discretion of the Court, to be kept in penal servitude for the term of three years, or to be imprisoned for any term not exceeding two years, with or without *1032] hard labor; and whosoever shall be convicted upon an indictment *for a common assault shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding one year, with or without hard labor.”( y) and Sec. 74. "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 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."(z) Sec. 75. "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 payment of such sum shall thereupon cease." Sec. 77. "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."(a) (w) Reg. v. Oliver, Bell C. C. 287; Reg. v. Yeadon, 1 L. & C. 81, ante, p. 1014. See post, Evidence, Vol. 2, p 5, that it is sufficient to prove so much of the charge as constitutes an offence punishable by law. (x) 4 Blac. Com. 217; 1 East P. C. c. 8, s. 1, p. 406, and c. 9, s. 1, p. 428. (y) The first part of this clause is taken from the 14 & 15 Vict. c. 100, s. 29. As to hard labor, see ante, p. 900. As to fine and sureties, see ante, p. 900. (z) This and the following clause are new in England; they are taken from the 10 Geo. 4, c. 34, ss. 33, 34 (I). It had long been the practice in England in such cases for the Courts after a conviction for an assault, to allow compromises to be made between the parties, which in some cases were legal: Beeley v. Wingfield, 11 East 46; Keir v. Leeman, 6 Q. B. 308 (51 E. C. L. R.) ; 9 Q. B. 371 (58 E. C. L. R.), ante, p. 195. Such compromises were usually made by the defendant paying a sum of money to the prosecutor to indemnify him for his expenses; but where there was an obstinate defendant, it frequently happened that no compromise could be effected, and the Court was sometimes placed in an invidious position. These clauses place it in the power of the Court to do full justice, without regard to the wishes or consent of either party. In every case the Court will have to exercise its discretion as to granting costs either under this section or under sec. 77; and, just as it has been the common practice where the Court has thought of imposing a fine, the Court will make such inquiries as may enable it to judge whether the defendant be able to pay the costs; nor is there ever any practical difficulty in ascertaining that fact. (a) This clause is old as far as relates to the costs of misdemeanors against the 14 & 15 Vict. c. 19; 14 & 15 Vict. c. 11; 12 & 13 Vict. c. 76. It is new as to any misdemeanor created by this Act. The words of the clause originally were "any indictable misdemeanor against this Act;" but the Committee of the House of Commons altered them to "any misdemeanor indictable under the provisions of this Act," in order to exclude common assaults where no actual bodily harm had been inflicted; and this seems to be the only case in which costs cannot be given under this Act; for wherever it is necessary to insert in any indictment the particular words of any clause in this Act in order to warrant the punishment given by that clause, the misdemeanor is plainly "indictable under the provisions of this Act:" thus, under sec. 47, in order to warrant the punishment for an assault occasioning actual bodily harm the indictment must allege such bodily harm, and therefore in that case the Court may allow the costs. *The 14 & 15 Vict. c. 55, s. 3, recites the 9 Geo. 4, c. 31, s. 27, by which, where any person shall assault or beat [*1033 any other two justices person, of the peace, upon the complaint of the party aggrieved, might hear and determine the offence; and sec. 29, by which, in case the justices find the assault or battery complained of to have been accompanied by any attempt to commit felony, or shall be of opinion that the same is from any other circumstance a fit subject for prosecution by indictment, they shall deal with the case as they would have done before the 9 Geo. 4, c. 31, and enacts that "in every case of assault so brought before such justices for summary decision, in which the justices shall be of opinion. that the same is a fit subject for prosecution by indictment, and shall thereupon bind the complainant and witnesses in recognizances to prosecute and give evidence. at the assizes or sessions of the peace, every such Court is hereby authorized and empowered at its discretion to order payment of the costs and expenses of the prosecutor and witnesses so appearing before such Court under such recognizances, together with compensation for their trouble and loss of time, in the same manner as Courts are authorized and empowered to order the same in cases of felony." In order to obtain costs under this section, it must be proved that the case was taken before two justices for summary adjudication; but a summons calling on the defendant to appear before justices of the peace to answer a complaint for an assault against the form of the statute, and to be further dealt with according to law, is sufficient to that purpose. (b) By the 24 & 25 Vict. c. 100, s. 42, "Where any person shall unlawfully assault or beat any other person, two justices of the peace, upon complaint by or on behalf of the party aggrieved, may hear and determine such offence, and the offender shall, upon conviction thereof before them, at the discretion of the justices, either be committed to the common gaol or house of correction, there to be imprisoned with or without hard labor for any term not exceeding two months, or else shall forfeit and pay such fine as shall appear to them to be meet, not exceeding, together with costs (if ordered), the sum of five pounds; and if such fine as shall be so awarded, together with the costs (if ordered), shall not be paid, either immediately after the conviction or within such period as the said justices shall at the time of the conviction appoint, they may commit the offender to the common gaol or house of correction, there to be imprisoned, with or without hard labor, for any term not exceeding two months, unless such fine and costs be sooner paid." (c) *Sec. 43. "When any person shall be charged before two justices of the [*1034 peace with an assault or battery upon any male child whose age shall not in the opinion of such justices exceed fourteen years, or upon any female, either upon the complaint of the party aggrieved or otherwise, the said justices, 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 as to common assaults and batteries, may proceed to hear and determine the same in a summary (b) Reg. v. M‘Gavaron, 3 C. & K. 320, Williams, J. It may, perhaps, be doubted whether the 14 & 15 Vict. c. 55, s. 3, be not impliedly repealed by the repeal of the 9 Geo. 4, c. 31; but, if that be the case, it seems very immaterial; for it is hardly conceivable that a case can occur which would have fallen within that provision, and in which the costs may not be granted under the 24 & 25 Vict. c. 100, s. 73, or s. 75. (c) This clause is framed from the 9 Geo. 4, c. 31, s. 27. Under that section the complaint could only be made by the party aggrieved: Reg. v. Deny, 2 L. M. & P. 230. This clause, in order to enable parents and others to complain on the part of an injured child, permits the complaint to be made by any one on its behalf, and so it might under the 14 & 15 Vict. c. 92, s. 2 (I.), which is assimilated in this clause with the 9 Geo. 4, c. 31, s. 27. But where a complaint has been made the justices may proceed, though the parties have made a compromise: Reg. v. Wiltshire, 8 Law T. 242. But see the 25 & 26 Vict. c. 50, s. 9, which was passed for the very purpose of enabling justices in Ireland to proceed, even where the party assaulted declined to complain. By the 9 Geo. 4, c. 31, s. 27, the justices had only power to fine in the first instance; by the 14 & 15 Vict. c. 92, s. 2, they might either fine or commit for two months; and under this clause they may either fine or commit. This clause also gives the justices power to commit to hard labor either in the first instance, or on default of payment of a fine. All summary proceedings under this clause should be taken under the 11 & 12 Vict. c. 43, where the offence is committed in England, except in London and the Metropolitan Police district, and in Ireland under the 14 & 15 Vict. c. 93; see sec. 76 of the Act. 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 labor, for any period not exceeding six months, or to pay a fine not exceeding (together with costs) the sum of twenty pounds, 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 behavior for any period not exceeding six months from the expiration of such sentence."(d) Sec. 44. "If the justices upon the hearing of any such case of assault or battery upon the merits, where the complaint was preferred by or on the behalf of the party aggrieved, under either of the last two preceding sections, shall deem the offence not to be proved, or shall find the assault or battery to have been justified, or so trifling as not to merit any punishment, and shall accordingly dismiss the complaint, they shall forthwith(e) make out a certificate(f) under their hands stating the fact of such dismissal, and shall deliver such certificate to the party against whom the complaint was preferred."(g) *1035] *Sec. 45. "If any person, against whom any such complaint as in either of the last three preceding sections mentioned shall have been preferred by or on the behalf of the party aggrieved, shall have obtained such certificate, or, having been convicted, shall have paid the whole amount adjudged to be paid, or shall have suffered the imprisonment or imprisonment with hard labor awarded, in every such case he shall be released from all further or other proceedings, civil or criminal, for the same cause."(h) (d) This clause is taken from the 16 & 17 Vict. c. 30, s. 1, and extended to Ireland. (e) In Reg. v. Robinson, 12 A. & E. 672 (40 E. C. L. R.), it was held that the certificate must be given before the justices separated; but this was doubted in Thompson v. Gibson, 8 M. & W. 281. And it is now held that the act of granting the certificate is not judicial or discretionary, but ministerial only, and therefore "forthwith" does not mean forthwith upon the dismissal of the complaint, but forthwith upon the demand of it by the person entitled to it: Costar v. Hetherington, 1 E. & E. 802 (102 E. C. L. R.); Hancock v. Somes, 1 E. & E. 795. (f) The certificate must state on which of the three grounds the complaint was dismissed: Skuse v. Davis, 10 A. & E. 635 (37 E. C. L. R.); and must be specially pleaded in an action: Harding v. King, 6 C. & P. 427 (25 E. C. L. R.). (9) This clause is limited to the case where a complaint is made by or on behalf of the party aggrieved. The 9 Geo. 4, c. 31, s. 27, only applied to a case where the complaint was made by the party aggrieved, and unless this clause had been limited as it is, any person who had committed an aggravated assault might have got some friend to make a complaint and get the case heard by the justices, on insufficient evidence, and might, by virtue of ss. 44 and 45, have deprived the party aggrieved of any remedy by action or indictment. Under the 9 Geo. 4, c. 31, s. 27, where a party aggrieved made a complaint, and obtained a summons and served it on the defendant, but, before the day for hearing, gave notice, both to the defendant not to attend, and to the magistrate's clerk that he should not attend, but the defendant attended, and claimed to have the information dismissed, and a certificate of dismissal granted, notwithstanding the prosecutor's absence, it was held that the justices were warranted in granting such certificate, and that it was a bar to an action for the assault: Tunnicliffe v. Tedd, 5 C. B 553 (57 E. C. L. R ); Vaughton v. Bradshaw, 9 C. B. (N. S.) 103 (99 E. C. L. R.). Under the present clause these cases are no authority; for in order to obtain a certificate under it the case must be heard upon the merits;" that is, the decision of the justices must be after having heard the evidence. The 14 & 15 Vict. c. 93, s. 21 (I.), required the justices to state in the certificate that the dismissal was on the merits, or that the assault was of a trifling or justifiable nature. (h) This clause is taken from the 9 Geo. 4, c. 31, s. 28; and see the 14 & 15 Vict. c. 93, s. 21. See the note to the last section. Several decisions occurred under the former clause, whilst the 1 Vict. c. 85, s. 11, which authorized a conviction of an assault on an indictment for felony, was in force, as to the cases in which a plea of auterfois acquit and convict might be sustained, and these will be found, together with remarks upon them, in Greaves' Crim. Acts, p. 71, 2d edition; but as that clause was repealed by the 14 & 15 Vict. c. 100, s. 10, there cannot now be a conviction of an assault upon any indictment for felony, and it seems clear that auterfois acquit or convict by the common law cannot be pleaded in any case, unless the prisoner might be convicted on the former indictment, either of the whole or at least part of the criminal charge contained in it. In Reg. v. Elrington, 5 Law T. R. 284, the first count was for assaulting and doing grievous bodily Sec. 46. "Provided, that in case the justices shall find(i) the assault or battery complained of to have been accompanied by any attempt to commit felony, or shall be of opinion that the same is, from any other circumstance, a fit subject for a prosecution by indictment, they shall abstain from any adjudication thereupon, and shall deal with the case in all respects in the same manner 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 or battery in which any question shall arise as to the title(k) 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."() *Sec. II.-Of Aggravated Assaults. [*1036 ATTEMPTS to murder, or to do some great bodily harm, (m) and assaults with intent to ravish,(n) or to commit an unnatural crime, (o) have been already noticed. Also assaults occurring in the obstruction of officers executing process, (p) in effecting a rescue, (q) in the obstruction of revenue officers, (r) and in the hindering the exportation or circulation of corn, (s) have been mentioned in the course of the Work. The aggravated assaults which remain to be noticed in this place, are prinpally such as have been made a subject of particular legislative provision; and the peculiar aggravation appears to arise, either from the place in which, or the person upon whom, the assault is committed, or else from the great criminality of the purpose or object intended to be effected.1 The 5 & 6 Edw. 6, c. 4, relates to disturbances in churches and churchyards; and the second section enacts, "that if any person or persons shall smite, or lay violent hands upon any other, either in any church or churchyard," every person so offending shall be deemed excommunicate.(t) Some points upon the construction of this statute have been mentioned in a harm to the prosecutor; the second for assaulting and doing actual bodily harm to him, and the last for a common assault; and the Court of Queen's Bench held that pleas of a dismissal of a complaint for the same assault under the 9 Geo. 4, c. 31, s. 27, were a bar to the indictment, on the ground that the two first counts only charged the same assault with certain aggravations and the last only charged the same assault. This was an indictment for misdemeanor, and the decision clearly right. (i) Where the defendant had been convicted of a common assault, though it was alleged that the evidence showed a felonious assault, and a certiorari was moved for on the ground that the justices had no jurisdiction, the Court of Queen's Bench held that the justices had found that the assault was not accompanied by any attempt to commit felony," which they had jurisdiction to determine, Lord Tenterden relying especially on the words "in case the justices shall find the assault or battery to have been accompanied by any attempt to commit felony," in the 9 Geo. 4, c. 31, s. 29; Anonymous, 1 B. & Ad. 382 (20 E. C. L. R.); s. c. as Rex v. Virgil, 1 Lewin 16. See In re Thompson, 6 H. & N. 193, where the information was for unlawfully assaulting and abusing a woman: Ex parte Thompson, 3 Law T. 294, and Wilkinson v. Dutton, 3 B. & S. 821; 8 Law T. 276, where it was held that the justices might convict of an assault, though the charge amounted to a rape. (k) See Latham v. Spalding, 2 L. M. & P. 378. (7) This clause is taken from the 9 Geo. 4, c. 31, s. 29; and see the 14 & 15 Vict. c. 92, s. 2 (I). (8) Ante, p. 183, et seq. (n) Ante, p 927. (p) Ante, p. 569, et seq. (t) The 9 Geo. 4, c. 31, repealed so much of this Act as related "to the punishment of persons convicted of striking with any weapon, or drawing any weapon with intent to strike as therein mentioned." So that sec. 2 seems not to be repealed. C. S. G. 1 As to aggravated assaults and those accompanied with an intent to kill, see Norton v. State, 14 Texas 387; Weaver v. State, 24 Texas 387; State v. Hartigan, 32 Verm. 607; State v. Swails, 8 Ind. 524; State v. Neal, 37 Maine 468; State v. Waters, Ibid. 54; King v. State, 21 Geo. 220; Ogletree v. State, 28 Ala. 693; State v. M-Clure, 25 Mo. 338; Walker v. State, 8 Ind. 290; Hopkinson v. People, 18 Ill. 264; State v. Bevan, 5 Harring. 508; People v. Davis, 4 Parker C. R. 61; O'Leary v. People, Ibid. 187; Morgan v. State, 33 Ala. 413; State v. Malcolm, 8 Clark 413. former part of this Work; where it was stated, that cathedral churches and churchyards are within it; that it will be no excuse for a person who strikes another in a church, &c., to show that the other assaulted him; and that the churchwardens and perhaps private persons, who whip boys for playing in the church, or pull off the hats of those who obstinately refuse to take them off themselves, or gently lay their hands upon those who disturb the performance of any part of divine service, and turn them out of the church, are not within the meaning of the statute.(u) Contempts against the King's palaces have always been looked upon as high misprisions; and, by the ancient law before the Conquest, fighting in the King's palaces, or before the King's judges, was punished with death. (v) The 33 Hen. 8, c. 12, provided severe punishment for all malicious strikings by which blood was shed within any of the King's palaces or houses, or any other house, at such time as the royal person happened to be there abiding; but these provisions were repealed by the 9 Geo. 4, c. 31, s. 1. *1037] *Striking in the King's superior courts of justice in Westminster Hall, or in any other place, while the Courts are sitting, whether the Court of Chancery, Exchequer, King's Bench, or Common Pleas, or before Justices of assize, or Oyer and Terminer, is made still more penal than even in the King's palace; perhaps for the reason that, those Courts being anciently held in the King's palace, and before the King himself, striking there included the former contempt against the King's palace and something more, namely, the disturbance of public justice.(w) So that, though striking in the King's palace was not punished with the loss of the offender's hand, unless some blood were drawn, nor even then with the loss of lands and goods, the drawing of a weapon only upon a judge or justice in such Courts, though the party strike not, is a great misprision, punishable by the loss of the right hand, perpetual imprisonment, and forfeiture of the party's lands during life, and of his goods and chattels.(x) And a party is liable to a similar punishment, if, in the same Courts, and within their view, he strike a juror or any other person, either with a weapon, or with hand, shoulder, elbow, or foot; but he is not liable to such punishment if he make an assault only, and do not strike.(y) And one who is guilty of this offence cannot excuse himself by showing that the person so struck by him gave the first offence.(z) In a modern case, the three first counts of the information set forth a special commission for the trial of Arthur O'Connor and others for high treason; and that, pending the sessions, after the acquittal of O'Connor, and before any order or direction had been made by the Court for his discharge, the defendants, in open court, &c., made a great riot, and riotously attempted to rescue him out of the custody of the sheriff, to whose custody he had been assigned by the justices and commissioners; and, the better to effect such rescue and escape, did, at the said sessions, in open court, and in the presence of the said justices and commissioners, riotously, &c., make an assault on one J. R., and beat, bruise, wound, and ill-treat the said J. R., and thereby impede and obstruct the said justices, &c. There were two other counts in the information; the one for riotously interrupting and obstructing the justices in the holding of the session, and the other for a common riot. (a) Two of the defendants having been found guilty generally, considerable doubt was intimated by Lord Kenyon, whether the Court were not bound to pass the judgment of amputation, &c., for the offence, as laid in the three first counts; and the matter stood over for consideration. But before the defendants were again brought up to receive judgment, the Attorney-General said, that he had received the royal command and warrant under the sign manual, whereby he was authorized to enter a noli prosequi, as to those parts of the information on which any doubt had arisen, (u) Ante, p. 415. (w) 3 Inst. 140; 4 Blac. Com. 125. (v) 4 Blac. Com. 124. (x) Staundf. 38; 3 Inst. 140, 141; 1 Hawk. P. C. c. 21, s. 3; 4 Blac. Com. 125; 1 East P. C. c. 8, s. 3, p. 408. (y) Ibid. (z) 1 Hawk. P. C. c. 12, s. 4. (a) See the precedent of this information, 2 Crit. Crim. L. 208, et seq. |