intent and for such purpose shall be upon the defendant against whom such charge is made or such indictment is found." By sec. 55, "it shall be lawful for any person whatsoever to Any person prevent any signal being made as aforesaid, and to enter and go into may prevent and upon any lands for that purpose, without being liable or subject signals. to any indictment, suit, or action for the same." sisting officers, or rescuing or destroying goods to prevent seizure, to forfeit 1007. By sec. 56, "If any person whatsoever shall obstruct any officer Persons reor officers of the army, navy, or marines, being duly employed for the prevention of smuggling, and on full pay, or any officer or officers of customs or excise, or any person acting in his or their aid or assistance, or duly employed for the prevention of smuggling, in the execution of his or their duty, or in the due seizing of any goods liable to forfeiture by this or any other act relating to the customs, or shall rescue or cause to be rescued any goods which have been seized, or shall attempt or endeavour to do so, or shall, before or at or after any seizure, stave, break, or otherwise destroy any goods, to prevent the seizure thereof, or the securing the same, then and in such case the party or parties offending shall forfeit for every such offence the sum of one hundred pounds.' By sec. 58, "if any persons to the number of three or more, armed with fire-arms or other offensive weapons, shall within the united kingdom, or within the limits of any port, harbour, or creek thereof, be assembled, in order to be aiding and assisting in the illegal landing, running, or carrying away of any prohibited goods, or any goods liable to any duties which have not been paid or secured, or in rescuing or taking away any such goods as aforesaid, after seizure, from the officer of the customs or other officer authorized to seize the same, or from any person or persons employed by them or assisting them, or from the place where the same shall have been lodged by them, or in rescuing any person who shall have been apprehended for any of the offences made felony by this or any act relating to the customs, or in the preventing the apprehension of any person who shall have been guilty of such offence, or in case any persons to the number of three or more, so armed as aforesaid, shall, within the united kingdom, or within the limits of any port, harbour, or creek thereof, be so aiding or assisting, every person so offending, and every person aiding, abetting, or assisting therein, shall, being thereof convicted, be adjudged guilty of felony, and suffer death as a felon." (j) Three or more armed persons assist in the illegal landing of any goods, ing of goods seized to be deemed guilty of felony. assembled to or in the rescu By sec. 59, "if any person shall maliciously shoot at any vessel or Persons shootboat belonging to his Majesty's navy, or in the service of the reve- ing at any boat nue, within one hundred leagues of any part of the coast of the belonging to the navy, or in united kingdom, or shall maliciously shoot at, maim, or dangerously the service of wound any officer of the army, navy, or marines, being duly em- the revenue, ployed for the prevention of smuggling, and on full pay, or any guilty of officer of customs or excise, or any person acting in his aid or assist- felony. ance, or duly employed for the prevention of smuggling, in the due execution of his office or duty, every person so offending, and every person aiding, abetting, or assisting therein, shall, being law (i) Repealed as to the punishment, by 1 Vic. c. 91, ss. 1 & 2, ante, p. 92, by which it is transportation for life, or for any term not less than fifteen years, or imprisonment, with or without hard labour, in the common gaol or house of correction for any term not exceeding three years, and &c., deemed Any person in company with four others having prohibited goods or with one other armed or disguised, guilty of felony. Persons as saulting officers by force or violence may be transported. Offences on the high seas been com mitted at the place into fully convicted, be adjudged guilty of felony, and suffer death as a felon." (k) By sec. 60, "if any person being in company with more than four other persons be found with any goods liable to forfeiture under this or any other act relating to the revenue of customs or excise, or in with one other company within five miles of the sea coast person, or of any navigable river leading therefrom, with such goods, and carrying offensive arms or weapons, or disguised in any way, every such person shall be adjudged guilty of felony, and shall, on conviction of such offence be transported as a felon for the space of seven years." (1) By sec. 61, "if any person shall by force or violence assault, resist, oppose, molest, hinder, or obstruct any officer of the army, navy, or marines, being duly employed for the prevention of smuggling, and on full pay, or any officer of customs or excise, or other person acting in his or their aid or assistance, or duly employed for the prevention of smuggling, in the due execution of his or their office or duty, such person, being thereof convicted, shall be transported for seven years, or sentenced to be imprisoned in any house of correction or common gaol, and kept to hard labour, for any term not exceeding three years, at the discretion of the Court before whom the offender shall be tried and convicted as aforesaid." By sec. 77," in case any offence shall be committed upon the high seas against this or any other act relating to the customs, or any leemed to have 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 brought, or in 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 on 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 which 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 purposes of this act, be deemed and taken to be an offence committed upon the high seas." which the offender is which he is found. (k) See note (j), and see Rex v. Reynolds, post, p. 118. (1) The 3 & 4 Wm. 4, c. 53, contains no provision as to accessories, there may, however, be accessories to any felony mentioned in it (ante, p. 34), and they are punishable by the 7 & 8 Geo. 4, c. 28, s. 8 (ante, p. 38), and sec. 9, and 1 Vict. c. 90, 5. 5 (ante, p. 65), with transportation for seven years, or imprisonment for not exceeding two years, with or without hard labour, in the common gaol or house of correction, and the offender may also be ordered to be kept in solitary confinement for any portion of such imprisonment, or of such imprisonment with hard labour, not exceeding one month at a time, or three months in the space of one year, and if a male, may be once, twice, or thrice publicly or privately whipped, in addition to such imprisonment. 66 before justices) by order of the commissioners, By sec. 112, no indictment shall be preferred or suit commenced Indictments for the recovery of any penalty or forfeiture under this or any other (except in cases act relating to the customs or excise (except in the cases of persons to be preferred detained and carried before one or more justices in pursuance of this act) unless such suit shall be commenced in the name of his Ma- and suits to be jesty's attorney general, or in the name of the lord advocate of in the name of Scotland, or unless such indictment shall be preferred under the attorney genedirection of the commissioners of his Majesty's customs or excise, or unless such suit shall be commenced in the name of some officer of customs or excise, under the direction of the said commissioners respectively." By sec. 114, "if any goods shall be seized for nonpayment of duties, or any other cause of forfeiture, and any dispute shall arise whether the customs, excise, or inland duties have been paid for the same, or the same have been lawfully imported, or concerning the place from whence such goods were brought, then and in such case the proof thereof shall be on the owner or claimer of such goods, and not on the officer who shall seize and stop the same." ral. Proof of pay ment of duties, or of lawful im portation of goods, to be on the owner. certain matters By sec. 116," in case of any information or proceedings had Averment of under this or any other act relating to the customs, the averment to be sufficient, that the commissioners of his Majesty's customs or excise have unless the condirected or elected such information or proceedings to be instituted, trary is proved. or that any vessel is foreign, or belonging wholly or in part to his 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 his Majesty, or that any person detained is or is not a seafaring man, or fit and able to serve his Majesty in his naval service, 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." vention of By sec. 117, "all persons employed for the prevention of smug- Persons emgling under the direction of the commissioners of his Majesty's cus- ployed for pretoms, or of any officer or officers in the service of the customs, shall smuggling to be deemed and taken to be duly employed for the prevention of be deemed smuggling; and the averment, in any information or suit, that such duly employed. party was so duly employed shall be sufficient proof thereof, unless the defendant in such information or suit shall prove to the contrary.” By sec. 118, "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." By sec. 120, "all suits, indictments, or informations exhibited for any offence against this or any other act relating to the customs Vivâ voce evidence may be given that a party is an officer, and petent witness, although entitled to the share of the seizure, or penalty or re he is a com whole or a ward on conviction. Within what dictments, or time suits, in informations are to be exhibited. Indictments or any county in in any of his 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." 66 By sec. 122, any indictment or information for any offence against this or any other 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 in Scotland where the offence is committed in Scotland, county respecand 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." As to malicious shooting at a vessel, &c., or officer, &c. Upon a clause in the 52 Geo. 3, c. 143, s. 11, (now repealed) which was nearly similar to s. 59 of the present act, it was determined that where a custom-house vessel had chased a smuggler and fired into her without hoisting the pendant and ensign then required by 56 Geo. 3, c. 104, s. 8, the returning such fire was not malicious. The indictment was for shooting at a vessel in the service of the customs on the high seas, within one hundred leagues of the coast of Great Britain; and also for maliciously shooting at an officer of the customs, &c. It appeared that the vessel chased a smuggler within the limits; the smuggler did not bring to upon being chased and a signal-gun fired; whereupon the custom-house vessel fired at the smuggler, and the smuggler returned the fire, and they had a regular engagement, in which one of the custom-house officers was severely wounded. In order to prove the right of firing at the smuggler, the 56 Geo. 3, c. 104, s. 8, was referred to, which, in the case of ships employed to prevent smuggling by the Treasury, Admiralty, Customs, or Excise, gave the power, if the vessel had a pendant and ensign hoisted of such description as his Majesty by any order in council, or by royal proclamation under the great seal, should direct; but there had been no proclamation, nor was any order in council proved; though, after the trial, an order in council was discovered which required certain particulars in the pendant and ensign which this ship's pendant and ensign had not. Upon a case reserved, eleven judges (Best, J., being absent) were clear that as the custom-house vessel had not complied with what was required to make her shooting legal, the smuggler's firing was not in law malicious. (1) Upon a clause in the 19 Geo. 2, c. 34, (now repealed) similar to the 58th section, which relates to offences committed by persons, to the number of three or more, armed with fire-arms, or other offensive weapons, and assembled in order to be aiding and assisting in the illegal landing of goods, &c., it was decided that in order to bring offenders within its penalties, it was necessary that they should be armed with weapons which might properly be called offensive. (m) fensive weapon. It seems, that a person catching up a hatchet accidentally, during What shall be deemed an of (m) Hutchinson's case, 1784, 1 Leach, (1) Rex v. Reynolds Mich. T. 1821. MS. Bayley, J. Russ. & Ry. 465. 342. the hurry and heat of an affray, was not armed with an offensive weapon within the meaning of that act; (u) and in one case it was held, that large sticks about three feet long, with large knobs at the end, with several prongs, the natural growth of the stick, arising out of them, were not offensive weapons; and that, from the preamble of the statute, the weapons must be such as the law calls dangerous. (o) But in a subsequent case, the Court said, that although it was difficult to say what should or should not be called an offensive weapon, it would be going a great deal too far to say that nothing but guns, pistols, daggers, and instruments of war, should be so considered; and that bludgeons properly so called, clubs, and anything that was not in common use for any other purpose but a weapon, were clearly offensive weapons within the meaning of the Legislature. (p) In a case upon a former statute, 9 Geo. 2, c. 35, s. 10, where the same words," armed with fire-arms, or other offensive arms or weapons," occurred, it was held that a person armed only with a common whip was not an offender within the meaning of the act; though he aided and assisted other persons who were armed with fire-arms and weapons which were clearly offensive. (q) But with respect to the latter part of this judgment, a different doctrine appears to have been held by Lord Mansfield upon the 19 Geo. 2, c. 34, who is reported to have said, that where a person was assembled, together with others who were armed, and was active, it was not necessary that such individual should be armed. (r) of Where a number of persons were assembled for the purpose landing smuggled goods, and they were, as is usual on such occasions, divided into two different parties, one called the company, who had bats in their hands for the purpose of carrying the tubs of spirits, (which bats were hop-poles about seven feet in length,) and the other called the protecting party, who were armed with muskets; and the prisoner was one of the company, and carried a bat, but he did not strike any one with it, but some of the men with bats struck some of the preventive men; as the bats might be used for offensive purposes, it was left to the jury to say whether the bats were offensive weapons or not. (s) Upon the 7 Geo. 2, c. 21, (now repealed,) by which any person who should, with an offensive weapon or instrument, unlawfully and maliciously assault with intent to rob was made guilty of felony, it was decided that the words "offensive weapon or instrument," would apply to a stick, though not of extraordinary size, and though it might in general have been used as a walking stick. An indictment was for assaulting with an offensive weapon, viz., a stick, with intent to rob; and it appeared that the stick was like a common walking stick, about a yard long, and not very thick, but that the prisoner, when he came up to the prosecutor, struck him violently (n) Rose's case, Old Bailey, May, 1784, before Willes, J., and Perryn, B. 1 Leach, 342, note (a). (0) Ince's case, Old Bailey, Feb. 1785. By Gould, J. Perryn, B., and Mr. Recorder. 1 Leach, 342, note (a). (p) Cosan's case, Old Bailey, May 1785. In this case it was contended, upon the authority of Ince's case, that very large club sticks, such as people ride with, to defend themselves, are not offensive wea pons; and on its being left to the jury, the prisoner was acquitted. 1 Leach, 342, 343, note (a). (q) Fletcher's case, 1 Leach, 23. (r) Franklin's case, 1 Leach, 255. S. C. Cald. 244. And this appears to be the correct doctrine, see Rex v. Smith, Mich. T. 1818. Russ. & Ry. 368, post. Book II. Chap. xxxix. (s) Rex v. Noakes, 5 C. & P. 326, Littledale, J., Alderson, J., Bolland, B. |