acts done would not have amounted to murder. Construction 43 Geo. 3. 66 under the circumstances of the case, if death had ensued, the acts "done would not have amounted to the crime of murder, such person shall not be held guilty of a capital crime, or be subject "to the punishment aforesaid; and provided further, that nothing "contained in this or any other statute, enacting a capital punishment, shall be held to affect the power of the prosecutor to "restrict the pains of law." This statute, 43 Geo. 3. c. 58., is more extensive in its applicaof the statute, tion than the 22 and 23 Car. 2. c. 1. (the Coventry act) which has been before mentioned, (a) as it does not make any lying in wait necessary to the completion of the offence: (b) nor need the inten tion of the offender be confined to a purpose of maiming or disfiguring the party; (c) as the words of the statute expressly include an intent to "disable, or do grievous bodily harm." It was decided by all the Judges, except Wood, B., who differed, that this statute did not extend to offences committed upon the seas, out of the body of any county in England or Ireland; the words of the statute extending only to the offences therein mentioned, if the same were committed either in England or Ireland.(f) But the act 1 Geo. 4. c. 90. s. 2. enacts, "that all and every the Shooting. "crimes and offences mentioned in the 43 Geo. 3. c. 58. which "shall be committed upon the high seas, out of the body of any county of this realm, shall be, and they are hereby declared to be, "offences of the same nature respectively, and to be liable to the 66 same punishments respectively as if they had been committed "upon the land, in England or Ireland; and shall be inquired "of, heard, tried, and determined, and adjudged in the same manner as treasons, felonies, murders, and confederacies are directed to "be by the 28 Hen. 8. c. 15." the Shooting is within this statute of 43 Geo. 3., though the instrument be loaded with powder and paper only, if it be fired so near the person, and in such a direction, as to be likely to kill, &c. In a case where the prisoner was indicted for shooting at the prosecutor with a loaded pistol, and Le Blanc, J. had told the jury, that if it was loaded with powder and paper only, but fired so near, and in such a direction, that it would probably kill or do other grievous bodily harm, and with intent that it should do so, case was within the act; and the jury had convicted, saying, they were satisfied that the pistol was loaded with some other destructive material besides powder and paper, there was a petition to the crown, on the ground that the pistol was loaded with powder and paper only and the opinion of the Judges being asked, whether if that were so the direction was right, they held that it was. (d) But to constitute the offence of attempting to discharge loaded fire arms, they must be so loaded as to be capable of doing the mischief intended. So that if part of the loading has fallen out, though without the prisoner's knowledge, and that which remains is inadequate to effect the mischief, the case is not within the act. And it seems, that a case is not within the act if there is not such (a) Ante, 587, et seq. (b) Ante, 588. (c) Ante, 590. (f) Rex v. Amarro, Mich. T. 1814, Russ. and Ry. 286. (d) Rex v. Kitchen, Mich. T. 1805. MS. Bayley, J., and Russ. and Ry. 95. a loading at the time as is likely to produce a discharge, though it is possible it may produce it. The prisoner was indicted for attempting to discharge a loaded blunderbuss at J. S. The evidence was, that it had been loaded and primed a fortnight before, and that the prisoner levelled it at J. S., and drew the trigger; that the flint struck fire in the pan, but that nothing caught fire there. The blunderbuss was afterwards discharged without any fresh priming: but powder might in the interim have been shaken through the touch-hole from the barrel into the pan. The prisoner was convicted: but the jury found that the blunderbuss was not primed at the time. Upon a case reserved, a great majority of the Judges considered this equivalent to a finding that the blunderbuss was not so loaded as to be capable of doing mischief by hav ing the trigger drawn; and if not, that it was not loaded within the meaning of the act; and a pardon was recommended. () In a case prior to this decision it appeared, that the prisoner had a loaded gun; but that, in his struggle with the prosecutor, it was probable all the powder had fallen out: he afterwards levelled it at the prosecutor, and drew the trigger. Abbott, J. told the jury, that if they thought the powder was all out before the prisoner drew the trigger, the gun could not be considered as loaded at the time; and on that ground, though with reluctance, the prisoner was acquitted. (n) 66 or cut." The words "stab or cut" in the statute relate only to such As to the wounds as are made by an instrument capable of stabbing or cut- words "stab ting; stabbing being properly a wounding with a pointed instrument, and cutting being a wounding with an instrument having a sharp edge. And if the indictment be for cutting, evidence of a stab will not support the charge; for, as the statute uses the words in the alternative, "stab or cut," so as to distinguish between them, the distinction must be attended to in the indictment. (i) And though a striking over the face with the sharp or claw part of a hammer has been holden to be a sufficient cutting within the act; yet it would have been otherwise, if the striking had been with the blunt end. (e) A blow with a square iron bar, which inflicted a contused or lacerated wound, has been holden not to be a cutting within the act. (f) And where a similar wound was given on the head, by a blow with the metal scabbard of the sword of a member of a corps of yeomanry cavalry (the sword being in the scabbard at the time), it was ruled not to be a cutting within this statute. (a) And it was ruled, that a blow with the handle of a windlass was not a cutting within the act, though it made an incision. (g) But if a cutting is inflicted, the case is within the statute, though the instrument be not intended for cutting, nor ordinarily used to cut, but generally used to force open drawers, (1) Rex v. Carr, Hil. T. 1819, MS. Bayley, J., and Russ. & Ry. 377, (n) Anon. 1817, MS Bayley, J. (i) Rex v. M'Dermot, East. T. 1818, MS. Bayley, J. and Russ. & Ry. 356. (e) Atkinson's case, York Spr. Ass. East. T. 1806, 4 Blac. Com. 208. (ed. 1809,) note (1). MS. Bayley, J. and Of the intent. doors, &c.; and though the intention was not to cut but to inflict some other mischief. The prisoner was indicted for cutting and stabbing. It appeared that he was seized for a robbery; and, in order to escape, struck the prosecutor on the head with an iron crow, which cut out a part of his skull. The instrument was sharp at one end so as probably to cut. A case was reserved, because this was an instrument to force open doors, drawers, &c. and not to cut; and because the prisoner meant to break or lacerate the head, not to cut it: but the conviction was held right. (r) 66 Cutting a child's private parts, so as to enlarge them for the time, may be considered as doing her grievous bodily harm; and, as done with that intent, though the hymen is not injured, the incision is not deep, and the wound eventually is not dangerous. The prisoner cut a female child, ten years old, in her private parts, probably to enlarge them to admit his entrance, but he was interrupted and fled: the wound was small, but bled a good deal; and when a surgeon saw it four days afterwards, he found it near an inch in length, not deep nor dangerous, because below the hymen; but, if it had entered the hymen, it would have been dangerous. Graham, B. left it to the jury to say, whether this was not a grievous bodily injury; and if so, then, though there might have been an ulterior intention to commit a rape, yet if there was an intent to do grievous bodily harm, the case was within the act: and that the intention might be inferred from the cutting. The jury found the prisoner guilty; and the Judges held the conviction right. (s) The cutting must be expressly laid with the intent stated in the act; as it has heen holden that an indictment for cutting with intent to do some grievous bodily harm, without saying, "in so doing, or by means thereof," was not sufficient. (h) Thus if the intent be to prevent the prisoner's lawful apprehension, and be so found by the jury, an indictment stating a different intent will not be supported. A sexton and others surprised two body stealers, and attempted to take them: one of them cut the sexton's assistant with a sabre; and was indicted on this statute for cutting, with the intent to murder, disable, or do some other grievous bodily harm. The jury found, that he cut with the intent to resist and prevent their apprehension, and for no other purpose. Upon a case reserved the Judges held, that the case would not have been within the act unless the apprehension would have been lawful; and that if the cutting was to resist or prevent a lawful apprehension, it should have been so stated, this being one of the intents mentioned in the act; and that, as the jury had negatived the intent stated, the conviction could not be supportod. (a) If the intent laid be to disable, it will be understood as of a permanent disability, and not merely one which may be temporary, as a disability until an offender likely to be apprehended may escape. The prisoner had broken into a shop in the night; and, in order to prevent a watchman apprehending him there, gave the watchman two (r) Rex v. Hayward, Mich. T. 1805, MS. Bayley, J., and Russ. & Ry. 78. (s) Rex v. Cox, East. T. 1818, MS. Bayley, J., and Russ. & Ry. 362. (h) Anon. cor. Dallas, C. J. and Bur ton, J. at Chester, 5 Evans's Col. Stat. Part V. Cl. iv. p. 334. note (3). (a) Rex v. Duffin and Marshall, East. T. 1818, MS. Bayley, J., and Rușs. & Ry. 365. severe cuts with the sharp part of a crow bar. The indictment was for cutting, with intent to murder, maim, and disable; and there was no count charging the prisoner with the intent of preventing his own lawful apprehension: and the jury found, that he cut with intent to disable till he could effect his own escape. Upon a case reserved, ten Judges (Graham, B. and Garrow, B. being absent) held the conviction wrong; for, by the finding of the jury, the prisoner intended to produce only a temporary disability, till he could escape, not a permanent disability. (b) But although the intent laid be that of doing grievous bodily harm, and upon the evidence it appears that the prisoner's main and principal intent was, to prevent his lawful apprehension, yet he may be convicted, if in order to effect the latter intent he also intended to do grievous bodily harm. The prisoner was engaged in poaching, and had fired his gun at one of three keepers, who, being on the watch for poachers, suddenly sprung up, and were rushing forwards to seize him. The jury were of opinion, that the prisoner's motive was to prevent his lawful apprehension; but that, in order to effect that purpose, he had also the intention of doing the keeper some grievous bodily harm. Upon objection taken, the learned Judge was of opinion, that if both intents existed, the question, which was the principal and which was the subordinate intention, was immaterial; and, upon the point being submitted to the consideration of the Judges, it was holden, that if both the intents existed, it was immaterial which was the principal and which the subordinate one; and that the conviction was therefore proper. (c) Where the wounding is charged to be done with intent to obstruct, &c. a lawful appre hension, it that the of must appear fender had some notifi Where the offence is charged to have been committed with Ricketts's intent to obstruct, &c. a lawful apprehension, it must be shewn case. that the offender had some notification of the purpose for which he was apprehended before he inflicted the wound. Upon an indictment on this statute, it appeared that, in the morning of the day mentioned in the indictment, the prisoner stole some wheat from an outhouse belonging to one Spilsbury; and that, the wheat being soon after found concealed in an adjoining field, Spilsbury, Webb, and others, watched near the spot, expecting that the thief would come to carry it away, and that they should thus be able to discover and apprehend him. In the course of the day the prisoner cation of the and another man walked into the field, and lifted up the bag conpurpose for taining the wheat. They were immediately pursued; and Webb which he was seized the prisoner, without desiring him to surrender, or stating apprehended. for what reason he was apprehended. A scuffle ensued, during which, before Webb had spoken, the prisoner drew a knife, and cut him across the throat. Upon these facts Lawrence, J. held that, as Webb did not communicate to the prisoner the purpose for which he seized him, the case did not come within the statute; for if death had ensued, it would only have been manslaughter. But he said, that if a proper notification had been made before the cutting, the case would have assumed a different complexion. The prisoner was accordingly acquitted. (i) (b) Rex v. Boyce, Trin. T. 1824, MS. Bayley, J., and Ry. & Mood. Cr. Cas. 29. (c) Rex v. Gillow, East. T. 1825. Ry. & Mood. C. C. 85. (1) Rex v. Ricketts, Worcester Sum. Evidence of two distinct acts of mali admitted as and to shew In a case where a point was made, whether the shooting with which the prisoner was charged was by accident or design, it was cious shooting held, that proof might be given that the prisoner at another time shot intentionally at the same person. Pearce, the prosecutor, who was a gamekeeper, proved that he met the prisoner sporting upon his manor, and remonstrated with him for so doing; and proposed that the prisoner should go with him to the steward; saying, that if the steward would pardon him he should have no objection. The prisoner assented to go with him, and they walked together until they came near to the gamekeeper's horse, which was about sixty yards off, when Pearce went on before him towards the horse; and when he was at a short distance from the prisoner, the prisoner fired at his back, but said nothing. Pearce attempted to turn round, and saw the prisoner running, and attempted to run after him; but his back seemed to be broken, and he could not follow. He then turned back to the horse; and, after getting upon it, was making his way home to a place about two miles off, and had got about half a mile on the road, at a place where there was a hedge on each side, when he saw the prisoner again in the lowest part of one of the hedges; and the moment he looked round at him the prisoner again fired his gun, the discharge from which beat out one of Pearce's eyes and several of his teeth, but did not cause him to fall from his horse. Between the first and second firing was about a quarter of an hour. In the course of the trial it was suggested, that the prosecutor ought not to give evidence of two distinct felonies but the learned Judge thought it unavoidable in this case, as it seemed to him to be one continued transaction, in the prosecution of the general malicious intent of the prisoner. Upon another ground also the learned Judge thought such evidence proper. The counsel for the prisoner, by his cross-examination of Pearce, had endeavoured to shew, that the gun might have gone off the first time by accident; and, although the learned Judge was satisfied that this was not the case, he thought that the second firing was evidence to shew, that the first, which had preceded it only a quarter of an hour, was wilful; and to remove the doubt, if any existed, in the minds of the jury. The prisoner having been convicted, the matter was submitted to the consideration of the Judges, who were of opinion, that the evidence was properly received, and the prisoner rightly convicted. (e) Dyson's case.Where the wounding is done with the intent to obstruct, &c. a : It is also necessary, in proceeding upon the same clause of the statute, to shew that the person apprehending acted under proper authority. For, in a case where it appeared that the prisoner charged to be having previously cut a person on the cheek, several others, who were not present when the transaction took place, went to his house to apprehend him, without any warrant, and that upon their attempting to take him into custody, he inflicted the wound upon which the indictment was founded; Le Blanc, J. was of opinion, that the prosecution could not be sustained. He said, that to constitute an offence within this branch of the statute, there must be a resistance to a person having a lawful authority to apprehend lawful apprehension, it is necessary to shew that the person apprehending acted under proper authority. Ass. 1811, cor. Lawrence, J. 3 Campb. (e) Rex v. Voke, Mich. T. 1823, Russ. & Ry. 531. |