Misdemeanor; imprisonment, 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. As to costs in cases of assault upon a peace officer, see ante, p. 187. As to assaulting officers engaged in the preventing of smuggling, see stat. 8 & 9 Vict. c. 87, s. 66, post, tit." Smuggling." Evidence. To maintain this indictment, the prosecutor must prove 1. That at the time of the assault, he was a peace or revenue officer, as stated in the indictment, and was engaged in his duty as such. Or if the indictment be for an assault of one acting in aid of such officer, then he must prove that the person whom he was assisting upon the occasion, was an officer, or acting as such, and in the exercise of his duty, and that he, the prosecutor was acting in his aid. It is not necessary to produce or prove the officer's appointment. See ante, p. 125. 2. That the defendant assaulted him, whilst thus in the execution of his duty. If the prosecutor fail to prove that he was acting at the time in the execution of his duty, the defendant may be convicted on the second count, as for a common assault. to wit. 24. Assaulting Gamekeepers. Indictment. The jurors for our Lady the Queen, upon their oath present, that at the time of the committing of the assault hereinafter mentioned, to wit, on the day of in the year of our Lord, in the night time, to wit, at eleven of the clock in the night of the said day, A. B. was found by one E. F., upon certain [inclosed] land of [or in the occupation of] one C. D., situate at then and by night as aforesaid, unlawfully taking and destroying game [or armed with a gun, 66 gun, net, engine or other instrument,” for the purpose of then and by night as aforesaid, unlawfully taking and destroying game], the said E. F. being then the gamekeeper ["gamekeeper or servant"] of the said C. D., and having then lawful authority to seize and apprehend the said A. B.; [*And that the said A. B., then escaped from the said land into a certain other close there situate, and the said E. F. thereupon pursued him into the said last mentioned close, for the purpose of so seizing and apprehending him*]; and that the said E. F. being then about to seize and apprehend the said A. B., for the offence aforesaid, having then lawful authority so to do as aforesaid, he the said A. B., with the gun aforesaid ["gun, cross-bow, fire-arms, bludgeon, stick, club, or any other offensive weapon whatsover"], which he the said A. B., in both his hands then had and held, did then assault and beat, and offer violence towards the said E. F. ["assault or offer violence"]: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [This count may be joined with one on the 9th section of stat. 9 G. 4, c. 69, against three or more for night poaching. R. v. Finacane et al., 5 Car. & P. 551. The words in the above form between the asterisks **, must be omitted, when not necessary. Misdemeanor; transportation for seven years;—or imprisonment and hard labour for not more than two years. 9 G. 4, c. 69, s. 2. Evidence. To maintain this indictment, the prosecutor must prove 1. That the defendant was found, in the night time, upon certain land, open or inclosed, of or in the occupation of C. D., situate as described in the indictment, and that he was then taking or destroying game or rabbits, or was armed with a gun, &c., for the purpose of taking or destroying them, as stated. The reader will find the 1st and 9th sections of stat. 9 G. 4, c. 69, ante, p. 245, which very fully define the offence of night poaching, and the second section, which shows in what cases the owner or occupier of the close, or his gamekeeper or servant and his assistants, may seize and apprehend the poachers. The evidence must be such as to bring the case clearly within these sections. 2. That the prisoner escaped from that land into another place, and that he was pursued and overtaken by the prosecutor,-if such be the fact and it be stated in the indictment. 3. That the prosecutor on the night in question, was the gamekeeper or servant of the owner or occupier of the land, in which the prisoner was found, or one of his assistants. 4. The assault as stated; and that the prosecutor, or some of the persons acting with him, were at the time about to seize and apprehend the prisoner or some of his companions who were found poaching, as above mentioned. 290 Assault to prevent Arrest.—Assaulting Servants. 25. Assault to prevent Apprehension. Indictment. The jurors for our Lady the Queen, upon their oath present, that A. B., on the to wit. day of in the year of our Lord " in and upon one C. D. did make an assault, and him the said C. D. did then beat and ill-treat, with intent in so doing then and thereby to resist and prevent ["resist or prevent"] the lawful apprehension ["apprehension or detainer"] of him the said A. B., and of one E. F., for a certain offence for which they the said A. B. and E. F. respectively were then liable to be apprehended ["apprehended or detained"] by the said C. D., that is to say, for [here state the offence generally]: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [Add a count for a common assault, as ante, p. 282.] Misdemeanor; imprisonment, 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. See also stat. 14 & 15 Vict. c. 19, s. 12, as to assaults upon persons authorized to apprehend offenders under that Act. Evidence. To maintain this indictment, the prosecutor must prove― 1. That he was about to apprehend the prisoner, or that he had him in custody and was detaining him, as stated in the indictment; and he must show for what offence and under what circumstances he was apprehending or detaining him, in order that it may appear that he was legally justified in doing so. In what cases an offender may be apprehended without warrant, see ante, p. 21; in what cases with warrant, ante, p. 30. 2. The assault as stated; and that it was for the purpose of resisting or preventing such apprehension or detention. If you fail in proving this, still the defendant may be convicted on the second count, for the common assault. 26. Assaulting Apprentices or Servants. Indictment. The jurors for our Lady the Queen, upon their to wit. oath present, that A. B., on the day of in the year of our Lord in and upon one C. D., his ap prentice ["apprentice or servant "] unlawfully and maliciously did make an assault, and him the said C. D. did then beat and ill-treat, whereby the life of the said C. D. was then endangered: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [Add if necessary another count, stating the assault und battery as above, whereby the health of the said C. D. then was [or is likely to be] permanently injured." 66 Misdemeanor; imprisonment with or without hard labour, for not more than three years. 14 Vict. c. 11, s. 1. Costs of prosecution as allowed in certain misdemeanors by stat. 7 G. 4, c. 64. Id. s. 2. See ante, p. 187. Guardians of the union, or guardians or overseers of the parish, may be bound over to prosecute. Id. s. 6. Evidence. To maintain this indictment, the prosecutor must prove 1. The apprenticeship or service. In the case of an apprentice, it may be advisable to give the defendant notice to produce the original indenture, if the prosecutor have not a counterpart, or if there be no admission of the apprenticeship on the part of the defendant. See R. v. Crompton, Car. & M. 597. 2. The assault, and its effect, as stated in the indictment; and a medical witness may be necessary, to prove that the life of the prosecutor was endangered by it, or his health permanently injured or likely to be injured by it, as stated. 3. That the assault was unlawful and malicious. This may be proved, by proving that it was committed without cause; or that the correction exceeded greatly the bounds of due moderation, either in the measure of it, or in the instrument with which it was inflicted; see ante, p. 218; and in general it may be fairly presumed from the nature of the assault and its results, for the defendant will be presumed to have intended that which he actually effected. 27. Not Providing Apprentices or Servants with necessary to wit. Food, &c. Indictment. The jurors for our Lady the Queen, upon their oath present, that A. B., on the day of —, being the master of one C. D., in the year of our Lord his apprentice ["apprentice or servant"], and then legally liable to provide for the said C. D., as his apprentice as aforesaid, necessary food and clothing ["food, clothing, or lodging"] did then wilfully and without lawful excuse refuse and neglect ["refuse or neglect"] to provide the same for him the said C. D.; *whereby the life of the said C. D. was endangered [or whereby the health of the said C. D. then was, or is likely to be-permanently injured*: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [It is very doubtful, from the manner in which the stat. 14 Vict. c. 11, 8. 1, is drawn, whether the words here between the asterisks ** are necessary. The section defines two offences—“Where the master or mistress of any person shall be legally liable to provide for such person, as an apprentice or as a servant, necessary food, clothing, or lodging, and shall wilfully and without lawful excuse refuse or neglect to provide the same, or where the master or mistress of any such person shall unlawfully and maliciously assault such person, whereby the life of such person shall be endangered or the health of such person shall have been or shall be likely to be permanently injured, such master or mistress shall be guilty of a misdemeanor," &c. And the doubt is, whether the latter clause, “whereby the life," &c., overrides the statement of both offences, and applies as well to the not providing of food, &c., as to the assault. According to the ordinary construction of Acts of parliament, this latter clause would not apply to both, but to the assault only. Yet in all such cases at common law, before this statute, it was actually necessary to state the injury the apprentice or servant sustained by the deprivation of necessary food, &c., otherwise it would be no offence. We must wait, however, for some decision upon the subject; in the meantime I have included the words in this indictment, for if they really do not form any part of the definition of the offence, they may be rejected as surplusage, and need not be proved. See ante, pp. 86. 119. Misdemeanor; imprisonment, with or without hard labour, for not more than three years. 14 Vict. c. 11, s. 1. Costs of prosecution, as allowed in certain misdemeanors by stat. 7 G. 4, c. 64. Id. s. 2. See ante, p. 187. Guardians of the union, or guardians or overseers of the parish, may be bound over to prosecute. Id. s. 6. Evidence. To maintain this indictment, the prosecutor must prove1. The apprenticeship or service, as in the last case; from which will be inferred the legal liability of the defendant to |