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until he can

the prisoner, in order to which the party must either be present when the offence is committed, or he must be armed with a warrant; and that this branch of the statute was intended to protect officers, and others armed with authority, in the apprehension of persons guilty of robberies or other felonies. (k)

In a case, where the intent charged in three of the counts was, Where the inan intent to prevent a lawful apprehension; and, in the fourth, an tent is to do intent to do the prosecutor some grievous bodily harm; and, from dily harm, it the nature of the facts, the case turned upon the last count only, a is immaterial point was made on behalf of the prisoner, that no grievous bodily whether grievharm was done, as the cut was upon the wrist, and did not appear harm be done. to have been dangerous, as it got well in about a week : and the

General malice prisoner's counsel relied upon a doubt expressed by Bayley, J.,(P) is sufficient. whether the injury done was a grievous bodily harm contemplated by the act, the wound not being in a vital part. Another objec- tected in the tion was also taken upon the facts; from which it appeared, that night in an the prisoner having been apprehended by one Headley, in an attempt to attempt to break into his stable in the night, and taken into

lony, may be Headley's house, threatened Headley with vengeance, and endea- detained withvoured to carry his threats into effect with a knife which had been out a warrant laid before hin, in order that he might take some refreshment; be carried and, in so doing, cut the prosecutor Cambridge, one of Fleadley's before a maservants, who, with Headley, was trying to take away the knife; gistrate. the act happening in that struggle, and perhaps not designedly as against Cambridge. Upon these facts it was objected, that there was no evidence of malice against the prosecutor Cambridge, but against Headley only; and that upon this statute general malice was not sufficient, as in the case of murder, and that malice against the particular individual was necessary. (9) A further objection was made, that the prisoner was not lawfully in custody, there being no warrant; and an attempt to commit felony being only a misdemeanor. The jury who found the prisoner guilty stated, that the thrust was made with intent to do grievous bodily harm to any body upon whom it might alight, though the particular cut was not calculated to do so. Upon the case being submitted to the consideration of the Judges, they were of opinion that, if there was an intent to do grievous bodily harm, it was immaterial whether grievous bodily harm was done ; that general malice was sufficient under this statute, without any particular malice against the person cut; and that, as the prisoner was detected in the night attempting to commit a felony, he might be lawfully detained without a warrant until he could be carried before a magistrate. (r)

A reported case upon this act states the following circumstances. Akenhead's The prosecutor and some other men had got hold of a woman, As to the who, as they conceived, had been using another person ill, and words“ grievsaid, that she deserved to be ducked in a trough which was near :

ous bodily but it did not appear that they intended to duck her. The prisoner, the sort of

harm," and (k) Rex v. Dyson, cor. Le Blanc, J. () Curtis v. the Hundred of Godley, York Spr. Ass. 1816, 1 Starkie N. P. R. 3 B. & C. 248. was cited, a case upon

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the Black act. (p) Rex v. Akenhead, Holt, N.P.C. (r) Rex v. Hunt, East. T. 1825, Ry. 470. Post, p. 602.

& Mood. C. C. 93.


injury con- who was at some distance at the time, on being informed that templated by they were using the woman ill, exclaimed, “I have got a good


“ knife,” rushed immediately to the place where she was, entered among the crowd, and instantly struck the prosecutor on the shoulder with a knife. The prosecutor turned round upon him; a struggle ensued between them; and in that struggle the prosecutor received other wounds. After they had fought for some time, the prisoner dropped the knife, and ran away. The wound upon the prosecutor's shoulder was about seven inches long and two deep; and the lap of one of his ears was cut. These was likewise a slight wound on the gland of his neck, and a cut on his left arm. Upon this evidence the counsel for the prisoner objected, that the first count of the indictment, which stated an intent to murder, &c. and the second count, which stated an intent to maim, disfigure, and disable, could not be supported; and that the only question was upon the third count, which stated an intent to do some grievous bodily harm. And upon this question he submitted, that the wounds were not of that kind from which grievous bodily harm could ensue; that the transaction was a scuffle in which a knife was used accidentally, without any settled design to

maim, disfigure, or disable,” or to do “other grievous bodily “ harm” to the prosecutor ; and also that the wounds were not inflicted in a part of the body which could produce such a consequence. Bayley, J. entertained some doubts on the case; which appear to have proceeded, principally, on the grounds that the wounds were not in a vital part; that it was questionable whether the injury done was a grievous bodily harm contemplated by the act; and whether, if death had ensued, the crime would have been more than manslaughter. And, taking all the circumstances of the case into consideration, he directed the jury to acquit the pri

soner.(d) Principals If several are out for the purpose of committing a felony, and aiding, &c.

upon an alarm run different ways, and one of them maim a pursuer to avoid being taken, the others are not to be considered principals in such act. The two prisoners, White and Richardson, were breaking into a house in the lower division of Lamb's Conduit Street; but, upon alarm and pursuit, Richardson ran into Ormond Street, and White towards the Foundling. Randal seized White just by the house they were breaking into, and White cut him with an iron crow. Graham, B. told the jury, that if the prisoners came with the same illegal purpose, and both determined to resist, the act of one would fix guilt on both; and that it might be part of the plan to take different ways to divide the force against them. The jury found both the prisoners guilty : but the Judges thought that the conviction as to Richardson was wrong.(a)

But where a party is present, aiding, &c. it is not necessary that his should be the hand by which the mischief is inflicted. The first three counts of an indictment alleged, in the usual form, that J. T. did shoot at A. B., and went on to state that M. and N. were present aiding and abetting; the second and third counts

(d) Rex v. Akenhead, Northumber- Hil. T. 1806, MS. Bayley, J., and Russ. land, 1816, I Holt's N. P. R. 469. & Ry. 99. Ante, 22.

(a) Rex v. White and Richardson,

varying from the first only in the allegations of the intent: the three last counts (varying in like manner as to the intent) stated, that an unknown person shot at A. B., and that the said J. T. and M., and N., were present aiding and abetting the said unknown person, the felony aforesaid, in manner and form aforesaid, to do and commit, and were then and there knowing of and privy to the committing of the said felony, against the statute, &c., but did not charge them with being feloniously present, &c. The jury found J. T. guilty; but stated, in answer to a question put to them, that they did not find that J. T. was the man who fired at A. B. Upon which an objection was taken in arrest of judgment, that the three last counts were defective, on account of the omission of the word feloniously; and that no judgment could be entered on the three first counts, as the jury had negatived that J.T. was the man who fired. The learned Judge overruled the objection, which he considered as founded upon a supposed difference in the act of shooting, &c., and being present, &c., at the act; whereas the statute had made no such distinction. And he held the plain meaning and necessary construction of the statute to be, that if parties are present, &c., knowing, &c., the charge of feloniously shooting applies to every one of them. He reserved the point however for the consideration of the Judges; who were all of opinion that the conviction was right. (b)

It has been suggested, that where an ineffectual exchange of Shooting in a shots takes place in a deliberate duel, both the parties may be duel. guilty of the offence of maliciously shooting within this statute; and the seconds be also guilty as principals in the second degree : but this is mentioned as not having been any where expressly decided. (1)

This Chapter may be concluded with the mention of the Irish Conspiring or statutes, 36 Geo. 3. c. 27. and 38 Geo. 3. c. 57.; by the former persuading to of which the conspiring to murder any person, and by the latter Ireland. of which, the proposing, soliciting, encouraging, persuading, or endeavouring to encourage or persuade to murder, are made capital felonies. (m)

(b) Rex v. Towle and others, Mich. T. 1816, Russ. & Ry. 314. S. C. 2 Marsh 466. And see ante, 22, 28.

(1) 3 Chit. Crim. L. 848. note (w).

(m) 5 Evans's Col. Stat. Part V. CI. iv. No. 19. in the note.

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Definition of

An assault is an attempt or offer, with force and violence, to do a an assault.

corporal hurt to another; as by striking at another with a stick or other weapon, or without a weapon, though the party striking misses his aim. So drawing a sword or bayonet, or even holding up a fist in a menacing manner, throwing a bottle or glass with intent to wound or strike, presenting a gun at a person who is within the distance to which the gun will carry, pointing a pitchfork at a person who is within reach, or any other similar act, accompanied with such circumstances as denote at the time an intention, coupled with a present ability, of using actual violence

against the person of another, will amount to an assault. (a) No words will But it appears to be now quite settled, though many ancient amount to an opinions were to the contrary, that no words whatsoever, be they assault.

ever so provoking, can amount to an assault. (b) And the words used at the time may so explain the intention of the party as to qualify his act, and prevent it from being deemed an assault : as where A. laid his hand upon his sword, and said, “ If it were not “ the assize time, I would not take such language from you,” it was holden not to be an assault, on the ground that he did not design to do the other party any corporal hurt at that time, and that a man's intention must operate with his act in constituting

an assault.(c) Of a battery. A battery is more than an attempt to do a corporai hurt to

another : but any injury whatsoever, be it ever so small, being actually done to the person of a man, in an angry or revengeful,

(a) I Hawk. P. C. c. 62. s. 1. I Bac. sault and Battery, I. Ab. Assault and Battery (A). 3 Blac. (6) i Hawk. P. C. c. 62. s. 1. 1 Bac. Com. 120. 1 Buro. Just. Assault and Ab. Assault and Battery (A). Battery, I. 1 East. P. C. c. 8. s. I. p. (c) Turberville v. Savage, 1 Mod. 3. 406. Bull. N. P. 15. Selw. N. P. As- S. C. 2 Keb. 545.

or rude, or insolent manner, such as spitting in his face, or in any way touching him in anger, or violently jostling him out of the way, is a battery in the eye of the law.(d) For the law cannot draw the line between different degrees of violence, and, therefore, totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it in any the slightest manner.(e) It should be observed that every battery includes an assault.)

The injury need not be effected directly by the hand of the The injury party. Thus there may be an assault by encouraging a dog to need not be bite; by riding over a person with a horse; or by wilfully and the hand of violently driving a cart, &c. against the carriage of another person, the party as

saulting. and thereby causing bodily injury to the persons travelling in it.(g) And it seems that it is not necessary that the assault should be immediate; as where a defendant threw a lighted squib into a market place, which, being tossed from hand to hand by different persons, at last hit the plaintiff in the face, and put out his eye,

it was adjudged that this was actionable as an assault and battery.(h) And the same has been holden where a person pushed a drunken man against another, and thereby hurt him :(i) but if such person intended doing a right act, as to assist the drunken man, or to prevent him from going along the street without help, and in so doing a hurt ensued, he would not be answerable.(k)

There may be an assault also by exposing a person to the in- Assault by exclemency of the weather. Thus, in a case where an indictment posing anoagainst a mistress for not providing sufficient food and sustenance inclemency for a female servant, whereby the servant became sick and ema- of the weaciated, was ruled to be bad, because it did not allege that the ther. servant was of tender years, and under the dominion and control of her mistress; it was suggested that the indictment also charged that the defendant exposed the servant to the inclemency of the weather; and it was holden that such exposure was an act in the nature of an assault, for which the defendant might be liable, whatever was the age of the servant.(?)

If a master take indecent liberties with a female scholar without Assault by inher consent, he is liable to be punished for an assault; though ties with feshe did not resist. A master took very indecent liberties with a males. female scholar of the age of thirteen, by putting her hand into his breeches, pulling up her petticoats, and putting his private parts to hers; she did not resist, but it was against her will. The jury found him guilty of an assault with intent to commit a rape,

ther to the

(d) I Bac. Ab. A83. & Bat. (B.) 1 (i) Short v. Lovejoy, cor. Lee, C. J. Hawk. P.C. c. 62. s. 2.

1752. Bul. Ni. Pri. 16. (e) 4 Blac. Com. 120.

(1) Id. ibid. if) Termes de la ley, Battery, I (1) Rex v. Ridley, cor. Lawrence, Hawk. P. C. c. 62. s. 1. i Bac. Ab. J. Salop Lent Ass. 1811. 2 Campb. Ass. & Batt. (A).

650, 653. The counsel for the pro(g) See the precedents for assaults secution admitted that they could not of this kind in Cro. Circ. Comp. 65. prove this charge in the indictment to 3. Chit. Crim. L. 823, 824, 825. 2 any extent; and the defendant was Starkie, 388, 389.

accordingly acquitted. That negli(h) Scott v. Shepherd, 2 Blac. Rep. gence and harsh usage may be a means 892, by three judges ; Blackstone, J. of committing murder, see ante, 426. contra, 3 Wils. 403. S. C.

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