Page images
PDF
EPUB

sonment, with or without hard labour, for not more than two years; and the court may also fine the offender, and require him to find sureties for keeping the peace. 9 G. 4, c. 31, s. 25. It has been already remarked (ante, p. 133), that an assault is an attempt to do a personal injury; and where that injury, if effected, would be a felony (as in the case of rape, the violation of girls under the age of ten years, unnatural offences, and the like), for all attempts to commit it, where the felony is not completed, the offender may be indicted and punished under the above section. Also, upon the trial of an indictment for any felony, which includes an assault against the person, the jury, if they acquit the party of the felony, may find him guilty of the assault, if the evidence will warrant such a finding. 1 Vict. c. 85, s. 11. Vide post, p. 144.

Commitment :-On - at did unlawfully assault one A. B. with intent [her the said A. B., then and there violently and against her will feloniously to ravish and carnally to know, or as the case may be, describing the felony, as in a commitment for it;] against the form of the statute in such case made and provided. And you the said keeper, &c.

Indecent assaults.] Taking indecent liberties with the person of another, female or male, against her or his will, or where it is merely submitted to from fear, or from submission to the authority,which the offender may have over the party,is deemed in law an assault, and punishable as such. Where upon an indictment against a schoolmaster, for an assault with intent to commit a rape upon one of his female scholars, with a second count for a common assault, it appeared from the evidence, that he did not actually attempt to commit a rape, nor perhaps intend it, but he had taken most indecent liberties with the person of the girl, and without her consent, although she did not actually offer resistance: the judges were of opinion that the evidence was fully sufficient to support the count for a common assault, although not for the assault with intent to commit a rape. R. v. John Nichol, R. & Ry. 130. See also R. v. Butler, 6 Car. & P. 368. So, where a girl went to a quack doctor, to be cured of some complaint, and he, pretending that he could not otherwise judge of her illness, than by seeing her naked, pulled off her clothes; being indicted for this specially, and also upon a count for a common assault, the jury being of opinion that the defendant did not really think that his seeing the girl naked would assist him in judging of her illness, found him guilty; and the court held the conviction on the count for a common assault good. R. v. Rosinski, M. S. & Ry. & M. 19, See post, vol. 2, tit. "Rape."

The commitment in such a case, may be as for a common assault.

5. Conviction for an Assault, upon a Prosecution for a Felony.

By stat. 1 Vict. c. 85, s. 11, on the trial of a person for any of the offences herein before mentioned, [administering poison, or stabbing, cutting, or wounding, &c., with intent to murder, s. 2; attempting to administer poison, or shooting or attempting to shoot at any person, or attempting to drown, suffocate or strangle any person, with intent to murder, s. 3 ;shooting or attempting to shoot at any person, or stabbing, cutting or wounding him, with intent to maim, disfigure or disable him, or to do him grievous bodily harm, or with intent to resist lawful apprehension or detainer of any person, s. 4 ;— sending any explosive substance, or throwing upon any person any corrosive fluid, with intent to burn, maim, disfigure or disable any person, s. 5 ;-administering poison, &c. or using any instrument, to procure abortion, s. 6;] or for any felony whatsoever, where the crime charged shall include an assault against the person :-it shall be lawful for the jury to acquit of the felony, and to find a verdict of guilty of the assault, if the evidence shall warrant such finding; the court may thereupon order him to be imprisoned for not more than three years, s. 11, with hard labour, s. 8. This may be done upon an indictment for manslaughter; R. v. Lewis, 1 Car. & K. 419; but not upon an indictment for burglary with intent to commit a rape. R. v. Watkins, Car. & M. 264.

ASSIZES.

"See Justices."

ATTAINDER.

"See Trial."

ATTEMPTS TO MURDER, &c.

Attempt to murder by poison.] "Whosoever shall administer to, or cause to be taken by, any person, any poison or

other destructive thing," with intent to commit murder, shall be guilty of felony, and suffer death. 1 Vict. c. 85, s. 2. To bring a case within this section, it must appear that the poison was actually taken into the stomach. See R. v. Cadman, Ry. & M. 114, and per Park, J., in R. v. Harley, 4 Car. & P. 369; it is not sufficient that it should be merely offered or tendered to the party, or left for him in order that he might take it. See R. v. Lewis, 6 Car. & P. 161. R. v. Harley, supra. If the evidence leave this doubtful, the offender may be committed for an attempt to poison, as shall presently be mentioned.

And "whosoever shall attempt to administer to any person any poison or other destructive thing," with intent to commit murder, shall, although no bodily injury be effected, be guilty of felony, and shall be transported for life, or for not less than 15 years, or be imprisoned, with or without hard labour, for not more than three years. 1 Vict. c. 85, s. 3. Where A. gave poison to B., with directions to administer it to C.; and B. instead of doing so, handed it over to C., telling him at the same time the instructions A. had given him: it was holden that this was not an attempt to administer the poison by A. R. v. Williams & Rees, 1 Car. & K. 589.

at

Commitment:-On did feloniously administer to one A. B. one ounce weight of a certain poison called white arsenic [or did feloniously attempt to administer to, &c. as above, and stating the particulars of the attempt] with intent thereby then and there feloniously, wilfully, and of his malice aforethought, the said A. B. to poison, kill and murder; against the form of the statute in such case made and provided. And you the said keeper, &c.

Attempt to murder by stabbing, shooting, &c.] Whosoever shall "stab, cut, or wound any person, or shall by any means whatsoever cause to any person any bodily injury dangerous to life," with intent to murder, shall be guilty of felony, and suffer death. 1 Vict. c. 85, s. 2. A contused wound, caused by a piece of metal or the like, not used for cutting, is not a cutting within the Act; R. v. Adams, 1 Russ. 597; but it is a wounding, within the meaning of it: and where such an instrument, though not commonly used for the purpose, was capable of cutting, and actually did give the prosecutor an incised wound, it was holden to be a cut within the meaning of the Act. R. v. Hayward, R. & Ry. 78. R. v. Peter Atkinson, Id. 104. But a wound within the meaning of the act may be inflicted with a hammer or bludgeon or other blunt instrument, if it break the skin and draw blood. R. v. Withers, Ry. & M. 294. R. v. Payne et al., 4 Car. & P. 558. R. v. Wood & M'Mahon, Ry. & M. 278. So, knocking a man down, and

[blocks in formation]

kicking him in the face with great violence, breaking the skin and drawing blood, has been holden to be a wounding. R. v. Shadbolt, 5 Car. & P. 504. The violence with which the act is committed is to be considered more with reference to the intent with which it is done. But it is immaterial in what part of the body the wound is given, if it otherwise appear to have been given with the intent mentioned in the statute. See R. v. Griffith, 1 Car. & P. 298.

As to the general offence here mentioned, namely, "any bodily injury dangerous to life," it was holden that striking and kicking a child, knocking its head against a beam in the ceiling, and then throwing it down upon a brick floor, so as to cause a concussion of the brain, amounted to this offence, if proved to be done with intent to murder; but Patteson, J. held that there must be proof of a positive intent to murder; merely proving that the act was done under circumstances, that if death had ensued, it would have been murder, would not be sufficient, if murder were not in fact intended. R. v. Cruse et ux., 8 Car. & P. 541.

[ocr errors]

at

Commitment:-On did feloniously stab and wound one A. B., in and upon the right side of the belly and other parts of the belly [or cause unto one A. B. a certain bodily injury dangerous to life, to wit -, by then and there feloniously here state the act done,] with intent thereby then and there feloniously, wilfully, and of his malice aforethought, the said A. B. to kill and murder; against the form of the statute in such case made and provided. And you the said keeper, &c.

And whosoever 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," with intent to murder, shall, although no bodily injury shall be effected, be guilty of felony, and be transported for life, or not less than 15 years, or be imprisoned with or without hard labour for not more

R. v.

than three years. 1 Vict. c. 85, s. 3. Where the prisoner had but the barrel of a percussion gun, detached from the stock and lock, but by striking the percussion cap, which was on the nipple of the barrel, he fired it at, and shot B.: this was holden to be a shooting within the meaning of the Act. Coates, 6 Car. & P. 394. This clause of the statute, however, relates more particularly to shooting without wounding; shooting and wounding being within the second section, ante, p. 145. As to the attempt to shoot, it has been holden that the gun or pistol, at the time the trigger is drawn, &c. must be in a state to effect the injury intended; and therefore where the pistol, though loaded, was not primed, R. v. Wm. Carr, R. & Ry. 377. R. v. James, Car. & K. 530, or where, although

loaded and primed, yet the touch-hole was plugged up, so that it could not be fired, R. v. Harris, 5 Car. & P. 159, it was holden not to be a case within the Act.

at - with a

Commitment for shooting :-On certain gun, loaded with powder and divers leaden shots, feloniously did shoot at and against one A. B., with intent thereby then and there feloniously, wilfully, and of his malice aforethought, the said A. B. to kill and murder; against the form of the statute in such case made and provided. And you the said keeper, &c.

at

Commitment for attempting to shoot :-On certain loaded arms, to wit, a pistol, then and there loaded with powder and one leaden bullet, at and against one A. B., feloniously did present, point, and level, and then and there, by drawing the trigger of the said pistol [or as the case may be,] feloniously did attempt to discharge the same at and against the said A. B., with intent, &c. as in the last form.

Attempt to murder, by attempting to drown, suffocate, &c.] Whosoever shall "attempt to drown, suffocate or strangle any person," with intent to murder, shall, although no bodily injury shall be effected, be guilty of felony, and be transported for life, or for not less than 15 years, or be imprisoned with or without hard labour for not more than three years. 1 Vict. c. 85, s. 3.

at

Commitment :-On feloniously did attempt to drown [or suffocate or strangle] one A. B., by then and there [&c. stating how,] with intent thereby then and there feloniously, wilfully, and of his malice aforethought, the said A. B. to kill and murder; against the form of the statute in such case made and provided. And you the said keeper, &c.

Attempt to do bodily injury, &c. by shooting, stabbing, &c.] "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 to maim, disfigure, or disable such person, or to do him some other grievous bodily harm,-or with intent to resist or prevent the lawful apprehension or detainer of any person-shall be guilty of felony, and be transported for life, or for not less than 15 years, or be imprisoned, with or without hard labour, for not more than three years. 1 Vict. c. 85, s. 4. Where a pistol, loaded with powder and the wadding only, was fired at a woman, and so close to her and in such a direction, that it was capable of doing her grievous bodily harm, the court held it to be within the statute. R. v. Wm. Kitchen, R. & Ry. 95.

« EelmineJätka »