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A bodily hurt whereby a man is rendered less able, in fighting, to defend himself or to annoy his adversary, is properly a maim at common law. (8). Therefore the cutting off, or disabling, or weakening a man's hand or finger, or striking out his eye or foretooth, or depriving him of those parts, the loss of which, in all animals, abates their courage, are held to be maims : but the cutting off his ear, or nose, or the like, are not held to be maims at common law; because they do not weaken a man, but only disfigure him.(h) In order to found an indictment of mayhem the act must be done maliciously, though it matters not how sudden
the occasion.(i) A person
It is laid down that, by the common law, if a person maim
a soldier, he may be indicted ; and, on conviction, fined and
country when occasion shall require.(?)
in mayhem, at common law; though there appears to have been
be accessories after the fact in mayhem.(o)
great bodily harm, have been made highly penal by the enact-
of time in which they were passed.
people, and after purposely cut their tongues, or put out their eyes, made eyes, enacts,
that in such case the offenders that so cut tongues, felony.
(8) Staund. P. C. 3. Co. Lit. 126. “ dicted, fined, and ransomed." 3 Inst. 62, 118. i Hawk. P. C. c. 55. (1) Co. Lit. 127 a.
Bract. lib. I.
Rot. 36. Northt.
principals, i Hale 613. Hawkins, on
(k) 1 Hawk. P. C. c. 55. §. 4. and may be accessories before the fact in
rogue, to make himself impotent, take.
putting himself to any labour, caused ? Hawk. P. C. c. 29. s. 5. 1 East.
pay a fine of
“ or put out the eyes of any the King's liege people, and that
duly proved and found that such deed was done of malice pre
pensed, they shall incur the pain of felony.” The words as of “ malice prepensed,” are explained to mean voluntarily and of set purpose, however sudden the occasion.(p) This statute was intended to put a stop to a cruel practice of cutting the tongues, or putting out the eyes of persons beaten, wounded, or robbed, in order to prevent them from giving evidence against the offenders ; and it appears to have had the desired effect.(9)
Next in order of time is the statute 37 Hen. 8. c. 6. the fourth 37 Hen. 8.c.6. section of which, amongst other provisions, enacts, that “if any Persons cut
person or persons maliciously, willingly, or unlawfully cut or are to forfeit
cause to be cut off the ear or ears of any of the King's sub- treble da“jects, otherwise than by authority of the law, chance medley, mages; and “ sudden affray or adventure,” every such offender shall not only 103. forfeit
the party grieved treble damages, to be recovered by action of trespass, but shall also forfeit to the King for every such offence 101. in the name of a fine.
A more severe and effectual statute, 22 and 23 Car. 2. c. 1. 22 & 23 Car. 2. was afterwards passed, upon the subject of malicious maiming. C.1: (Coventry It is usually called the Coventry act; having been occasioned by cious maiming a violent attack upon Sir John Coventry in the street, and slit- made felony ting his nose, in revenge, (as was supposed) for some obnoxious without bene
fit of clergy. words uttered by him in parliament.(r) The seventh section enacts, that if
any person or persons, on purpose and of malice “ forethought, and by lying in wait, shall unlawfully cut out or “ disable the tongue, put out an eye, slit the nose, cut off a nose
or lip, or cut off or disable any limb or member of any subject “ of his majesty, with intention, in so doing, to maim or dis“ figure, in any the manners before mentioned, such his majesty's
subject; that then and in every such case, the person or per“sons so offending, their counsellors, aiders, and abettors, (know“ing of and privy to the offence as aforesaid) shall be and are “ hereby declared to be felons, and shall suffer death, as in cases “of felony, without benefit of clergy.” But by the subsequent section, no attainder of such felony is to extend to corrupt the blood, or forfeit the dower of the wife, or the lands, goods, or chattels of the offender.
Several points have been holden upon the construction of this Construction statute, which may be considered, as they relate, 1. to the “pur- of the statute
22 & 23 Car. 2. pose and malice forethought;" 2. to the lying in wait; 3. to c. 1. the kind of maiming or disfiguring; and, 4. to the intention to maim or disfigure. It is not thought necessary to state them much in detail, as offences against this act appear to be included
(p) 3 Inst. 62. And as to the mean- “ be done, before those which punish ing of the word malice, see ante, 422, “them after they be done. And there
“ fore, in the making of this law, (9) 3 Inst. 62. where the learned “ there was salutaris severitas et beata writer states, that this law did so ter- “ securitas." rify offenders, that there appeared to (r) 4 Blac. Com. 207. And see for have been hardly any prosecutions for the history of this transaction, Burnet the offence: and he observes, “ Of all Hist., Vol. I. p. 269. fol. and 7 Hume's ** statutes those are to be preferred, Hist. 468, 469. “ which prevent offences, before they
in the more general provisions of a recent statute, 43 G. 3. c. 56.
which will be presently mentioned. As to the pur- With respect to the purpose and malice forethought,” it may pose and ma- be observed, that it must be substantiated by proving a deliberate thought.
and premeditated design to do a personal injury to another, of the sort described in the statute.(s) It does not, however, seem necessary, that the malicious intention should be directed against any particular individual: for if it be conceived against all persons who may happen to fall within the scope of the perpetrator's design, the particular mischief done to any one will be connected with the general malignant intent, so as for the statute to attach upon the offenders.(t) And it seems clear that, if a man striking another, with such an evil intent as would make him guilty of mayhem if the person struck at should be maimed, happen to miss that person and strike a third person, and maim him, he will be
equally guilty.(u) As to the ly- In order to satisfy the words “ lying in wait,” it seems that ing in wait.
there must be some deliberate watching for an opportunity to effect the evil purpose. But it is not necessary that the party should place himself in any particular concealment, and then rush out of his lurking place to do the mischief. If, after having formed the intention, he takes a convenient opportunity of doing the premeditated deed, and does it with deliberation, it is a lying in wait; though he do not take any particular length of time, or use any extraordinary degree of preparation.(w) Thus, where the prisoner with many other persons, supposed to be a gang of thieves, beset the prosecutor as he was passing along the street with his master's cart loaded with sugar, and after he had received several severe wounds from some of them, and there had been repeated exclamations by several of them of “Damn you, where
are your knives?" the prisoner made a stroke at him with a large knife, and gave him a dreadful wound on the face, but it appeared that the cart was not robbed, and the prosecutor said, that he could suppose no other cause for this cruel treatment, than that
was intended by way of revenge against him, for having detected and beat off some thieves who had made an attempt to rob the cart, near the same place, on the preceding evening, the case was left to the jury upon the question of lying in wait. And the learned Judge desired them to consider whether the fact were deliberately and intentionally done by lying in wait for that purpose, on the account suggested, or from any other malicious and deliberate motive; or whether it were a sudden violent impulse of rage, not in the previous contemplation of the parties ; in which latter case, it was not within the statute: but he laid stress on the expression uttered by some of the gang--" Where are your “ knives ?” as explanatory of a previous design to do such a mischief.(x) In another case, where a gentleman, having de
(8) 1 East. P. C. c. 7. s. 3. p. 394. (u) 2 Hawk. P. C. c. 23. s. 16. and citing 1 MS. Sum. 122. And see as to see ante, 453, et sequ. malice aforethought, ante, 422, et seq. (W) By Eyre, B. in Rex v. Mills, i
(1) 1 East. P. C. c. 7. s. 4. p. 396. Leach 259. Rex v. Carrol and King, post. 589. (or) Rex v. Mills, 1 East. P. C. c. 7.
I Leach 259.
tected a boy in picking his pocket, had seized him, and was carrying him along the street, and the prisoner, who was lurking thereabouts, came up to them, and after walking for some little time, sometimes before and sometimes after them, at last struck the gentleman a severe blow across the face with a knife, saying, “ Damn you, Sir, let the boy go;" the two Judges who inclined most to a strict construction of the words “ lying in wait,” &c. yet were of opinion that the circumstance of the prisoner passing before the gentleman, and waiting till he came up, and then giving him the wound, was a lying in wait within the statute. (y)
But if the mischief be done in a sudden attack, without any premeditated design against the person, there will not be a lying in wait within the statute. Thus, where the prisoner was stealing turnips in a field, and, being found by the servant of the owner of the field in the very act of taking them, etruck the servant immediately, with a sharp instrument, and slit his nose; it was holden that this was not an offence within the statute : all the Judges holding that there was not sufficient evidence of a lying in wait; and some of them considering that the having the instrument, and using it, was with intent to escape, and not to murder or maim.(z) And the lying in wait must be with the view, and for the purpose, described in the statute. Thus, where the commander of a press-gang maimed a man, whom he casually met, and who resisted being pressed, and against whom it appeared that he had an old grudge; though the jury found that the wounding was of malice aforethought, yet the Judges, upon a reference to them, were of opinion that there was no lying in wait, so as to bring the offence within the intent and purview of the statute.(a)
The maiming or disfiguring must also be of such a nature as As to the the statute describes. Thus, where a husband, who had lived
kind of maim,
ing or disfilong while separate from his wife, visited her again, and, having guring. persuaded her to let him sleep with her, took an opportunity, during the night, and while she was asleep, to make a wound across her throat, about three inches in length, with a razor, which he had procured, and concealed for the purpose; it was ruled that the offence was not complete, there not being such a maim as the act requires.(b) But it has been decided that a large transverse wound across the nose, so wide and deep as to render the bone visible, is a slitting of the nose, within the statute, although the nostril be not thereby perforated.(c) And in another case, where there was a deep cut across the nose, which separated the flesh, and went quite through into the nostril, an objection
(y) Rex v. Carrol and King, 1 East. (0) Rex v. Lee, Old Bailey 1763, P. C. c. 7. s. 3. p. 394, 395. and id. cor. Parker, C.B. I Hawk. P. C. c. s 5. p. 397. citing MS. Gould, J. 55. s. 10. The same case is reported
(z) Rex v. Tickner, reserved for the in 1 Leach 51. But the grouods on opinion of the twelve Judges, from which the court ruled that the offence the Old Bailey Sess. 1778. I Hawk. was not within the statute are not P. C. c. 55. 3. 12. | Leach 187. I there stated. East. P.C. c. 17. s. 6. p. 398.
(c) Rex v. Carrol and King, 1 Leach (a) Rex v. Mackey and Arrigoni, 55. 1 East. P. C. c. 7. s. 3. p. 394, Kingston Spr. Ass. 1778. I East. P.C. 395. c. 7. s. 6. p. 399.
that the nose could not be said to be slit because the edge of it
was not cut through, was overruled.(d) As to the in- The words in the statute are “ with intention in so doing to tention to
“ maim or disfigure:" but these words have been considered as maim or disfigure. merely auxiliary to the preceding words, “ on purpose and of
“ malice aforethought,” confining the crime to an intended violence.(e) So that it has been ruled, that if a man attack another, of malice aforethought, in order to murder him with a bill, or any other such like instrument, which cannot but endanger the maiming him, and in such attack happen not to kill, but only to meim him, he may be indicted on this statute: and that it shall, in such case, be left to the jury, upon the evidence, whether there was a design to murder by maiming, and, consequently, a malicious intent to maim as well as to kill; in which case the offence is
within the statute, though the primary intention was murder. (f) Of aiders and This statute of 22 & 23 Car. 2. expressly extends to counselabettors.
lors, aiders, and abettors, knowing of and privy to the offence : it includes, therefore, all accessories before. But in a case where it appeared that one of the prisoners, though present at the fact, and guilty of a trespass and assault, was nevertheless altogether ignorant of any intention to maim or disfigure, the court directed that he should be acquitted in the first instance, before the guilt
or innocence of the perpetrator was ascertained. (8) Of the indicts An indictment upon this statute must pursue the words of it, ment,
and allege the offence to have been committed“ on purpose, of “ malice aforethought, and by lying in wait;” and state that the act was done with the intent mentioned in the statute. But as the words of the statute are in the disjunctive, an averment either that the act was done with intent to maim, or with intent to dis
figure, according to the subject matter, seems to be sufficient. (h) 9 Anne, c. 16. The next statute in the order of time is the 9 Anne, c. 16, Attempting to which was passed for the more especial protection of privy counkill, assaulting, &c. a
sellors in the execution of their office; and was made on the occaprivy counsel- sion of Mr. Secretary Harley being stabbed by Anthony de Guislor, felony card, who was at the time under examination before the privy without clergy.
council. It enacts, “ that if any person or persons shall unlaw“ fully attempt to kill, or shall unlawfully assault, and strike, or “ wound any person being one of the most honourable privy coun“cil, when in the execution of his office of a privy counsellor, “ in council, or in any committee of council, that then the person “ or persons so offending, being thereof convicted in due form of
“ law,” shall be felons, and suffer death without benefit of clergy. 9 G. 1. c. 22. The statute 9 G. 1. c. 22. relates to the offence of wilfully and Maliciously shooting at
(d) Rex v. Coke and Woodburn, 6 the Judges on another case (Carrol's, St. Tr. 212, et sequ.
ante, note (c)) Willes, J. and Eyre, B. (e) i East. P. C. c. 7. s. 6. p. 399, expressed some dissatisfaction with 400.
this case; and thought at least that (f) Rex v. Coke and Woodburn, the construction ought not to be carante, note (d), 1 Hawk. P. C. c. 55. ried further. s. 8. 4 Bac, Ab. Maihem (B). 4 Blac. (g) Rex v. Mackey and Arrigooi, I Com. 206. note (k). 1 East. P.C. East. P. C. c. 7. s. 6. p. 399. and s. 7, c. 7. s. 6. p. 400. in which last book p. 401. it is said, that on the conference of (h) 1 East. P. C. C.-7. s. 8. p. 402...