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ambassador of peace. And it may be visited with severe penalties; for, as the statute 9 Edw. 2. c. 3. enacts that, if any person lay violent hands upon a clerk, the amends for the peace broken shall be before the King, that is, by indictment in the King's courts; and, as the assailant may also be sued before the bishop, that excommunication or bodily penance may be imposed; it appears that a person assaulting a clergyman is subject to three kinds of prosecution, all of which may be pursued for one and the same offence, namely, an indictment for the breach of the King's peace, a civil action for the special damage, and a
suit in the ecclesiastical court.(c) Assault with Amongst the principal of those assaults, the aggravated nature intent to com- of which may be said to arise from the great criminality of the and demand object intended to be effected, is an assault upon a person with a ing money by felonious intent to commit a robbery: and nearly allied to this is
a demand of property effected by menaces or force, and with the force, with in tent to steal. intent of stealing such property. These offences are made felo4 G. 4. c. 54. nies by the late statute, 4 G. 4. c. 54. s. 5. which repeals the
statute 7 G. 2. c. 21. which was an act for the more effectual punishment of assaults with intent to commit robbery, and then enacts, “ that if any person shall maliciously assault any other
person with intent to rob such other person, or shall by me“naces or by force maliciously demand money, security for mo
ney, goods or chattels, wares or merchandize, of any other per
son, with intent to steal the same, or shall procure, counsel, aid “ or abet the commission of the said offences, or of any of them ;
every person so offending, being thereof lawfully convicted, “shall be adjudged guilty of felony, and shall be liable, at the “ discretion of the court, to be transported beyond the seas for
life, or for such term, not less than seven years, as the court « shall adjudge, or to be imprisoned and kept to hard labour in “ the common gaol or house of correction, for any term not ex“ ceeding seven years." This section also makes it a felony to threaten to accuse a person with certain crimes, with intent to extort money, &c. from such person; an offence which will be more properly mentioned in a subsequent part of this work.(a)
The offences described in the 4 G. 4. c. 54. and applicable to the present subject, appear to be, 1. A malicious assault upon any person with intent to rob such person; and, 2. A malicious
demand by menaces or force of money, &c. of any other person
I with intent to steal the same. As to the word The word “ maliciously.” would probably be deemed to be an “ maliciously." essential part of the description of either of these offences. By
the repealed statute, 7 Geo. 2. c. 21., any person who should with an offensive weapon “ unlawfully and maliciously” assault, with
(c) Blac. Com. 217. where it is ritual censures for a round compensaid that the suit in the ecclesiastical sation in money; perhaps because court is, first, pro correctione et sa. poverty is generally esteemed by molute anima, by enjoining penance; and ralists the best medicine pro salute then again for such sum of money as anime. shall be agreed upon for taking off the (a) Post. Book V. ch. iii. Of Threats pevance enjoined ; it being usual in and Threatening Letters. ihose courts to exchange their spi
intent to rob, &c. was guilty of felony; and it seems to have been
other The assault person with intent to rob such other person.” Upon the repealed must be made act 7 G. 2. c. 21. the words of which were not quite so clear upon son intended this point, it was decided, that the assault therein described must to be robbed. be made upon the person intended to be robbed. The prisoner was indicted for assaulting one John Lowe with an offensive weapon, with intent to rob him. Mr. Lowe's evidence was, that between ten and eleven o'clock at night, he was travelling along the road in a post-chaise, when the chaise suddenly stopped, and he saw a man with his arnì extended towards the post-boy, and heard him swear many bitter oaths with great violence, but did not hear him make any demand of money; and the post-boy swore, that the prisoner followed the chaise for some time, and at last presented a pistol at him, and bid him stop, using at the same time many violent oaths; that he immediately stopped the chaise, and the prisoner turned towards it, but perceived that he was pursued, and immediately rode away without saying or doing any thing to Mr. Lowe, who was in the chaise. The court held, that this evidence did not support the indictment, which charged an intent to rob Mr. Lowe, the gentleman in the chaise. Another indictment was then preferred against the prisoner, laying the assault with intent to rob the post-boy : but the same evidence being again given on the second trial, the court held that it would not maintain the indictment; that it was clear that the prisoner did not mean to rob the post-boy, for when he presented the pistol to him, and bid him stop, he made no demand upon him, but went towards the person in the chaise. (?)
A case is reported, which would rather lead to the conclusion, But no actual that it was at one time considered to be necessary in support of demand of the offence in the repealed act 7 Geo. 2. of an assault with an of. money, &c. is fensive weapon with intent to rob, to shew such intention to rob the charge of by proving an actual demand of money, &c. to have been made by assault with
intent to rob. the prisoner. The indictment was for assaulting the prosecutor with a pistol, with intent to rob him; and, by the evidence it appeared that the prosecutor, a coachman, was driving his coach along the road, and that the prisoner presented a pistol at him while he sat on his box, and called out to him to stop; but did not expressly make any demand of money. And upon this it is said, that the court held that the case was not within the meaning of that act; that a demand of money or other property must be made to constitute the offence; and that though a demand may be made by action as well as speech, as by a deaf and dumb man stopping
(k) Pegge's case, 1 East. P. C. c. 8. strict construction of the statute, $. 12. p. 420. ; and see Davis's case, which has the word of reference such. ante, 593.
And in 1 Hawk. P. C. c. 55. S. 4. (1) Thomas's case, O. B. 1784. I Thomas's case is cited, and the exLeach 330. 1 East. P. C. c. 8. s. II. pression such person relied upon in p. 418. where it is observed, that per support of the same construction. haps this may be agreeable to the
a carriage, and putting his hat into it with one hand, and holding at the same time a pistol offensively with the other, yet the action must be plain, and unequivocally import a demand; and that in the case then under consideration, no motion or offer to demand the prosecutor's property was made.(m) But this case was doubted; (n) and it was observed upon it, that the words of the act 7 G. 2. c. 21. were in the disjunctive ; and that upon proof of the prisoner having assaulted the prosecutor with a felonious intent to rob him (which was a question for the jury) the case was brought expressly within the words, as well as the spirit, of that act.(o) It has been suggested also, upon this case, that as the prosecutor was a coachman, and the indictment charged an intent to rob him, it might have appeared to the court that he was not the party intended to be robbed ; (P) and we have seen that it was considered to be necessary that the assault should be made upon the person intended to be robbed. (9) Other cases, however, appear to put the construction of the repealed act 7 G. 2. in this matter beyond doubt, and shew that an actual demand of money, &c. was not necessary upon the clause of that act relating to the assault with intent to rob. Two men were indicted for a felonious assault upon the prosecutor, with a certain offensive weapon called a pistol, with a felonious intent to rob him. The evidence was, that the prisoners rushed out of a hedge upon the prosecutor, who was the driver of a returning chaise, as he was passing along the road; and one of them, presenting a pistol to him, bid him stop, which he did, but called out for assistance; upon which one of the prisoners threatened to blow his brains out if he called out any more: but he continued to call, and presently obtained assistance, and took the men, who had made no demand of money. Upon this evidence the prisoners were convicted and transported.(r) In a subsequent case, the indictment against the prisoner charged him with having, with an offensive weapon, feloniously made an assault upon the prosecutor, with a felonious intent to rob him. The evidence was that, while the prosecutor and another person were riding together in the highway, the prosecutor received a violent blow from a great stone, which was thrown by the prisoner from the hedge; that the prisoner then ran across a field, and was followed by the prosecutor, who asked him how he could be such a villain as to throw the stone; on which the prisoner threatened the prosecutor, ran to him, and struck him violently with a staff, till at length the prisoner was overcome and secured. The prisoner's face was blacked, and he denied his name: but, on being questioned afterwards as to his motive, he said he was very poor, and wanted half a guinea to pay his brewer. He did not ask for money or goods. This case was submitted to the Judges, upon a question relating to the form of the indictment, and they held the conviction proper; but no objection was taken on behalf of the
(m) Parfait's case, O. B. 1740. 1 Leach 19. 1 East. P. C. c. 8. s. 11. p. 416, 417. 1 Hawk. P. C. c. 55. s. 3.
(n) i East. P. C. c. 8. s. 11. p. 417. (0) Id. ibid.
(p) 1 East. P. C. c. 8. s. 11. p. 418. (9) Thomas's case, ante, 617. (r) Rex v. Trusty and Howard, O. B. 1783. 1 East. P. C. c. 8. s. II. p. 418, 419.
clause of the
prisoner, on the ground of its being necessary to prove an actual demand of money, or other property. (t)
The intent to rob is a material part of the first offence described The intent to in this statute of 4 Geo. 4. c. 54. s. 5., and should be properly al- rob is a mateleged in the indictment. In a case upon the repealed act 7 G. 2. offence, and c. 21. where the indictment stated the assault to have been made should be prowith a certain offensive weapon called a wooden stick, with intent perly alleged the goods, monies, &c. of the prosecutor, “ from his person and in the indictagainst his will feloniously to steal, take, and carry away,” it was holden to be bad, as it did not contain a statement of force and violence. The prisoner was accordingly discharged from this indictment; and a new one was preferred against him, laying the assault as before, but stating the intent to be, the monies of the prosecutor, “ from his person and against his will, feloniously and
violently to steal, take, and carry away;" upon which indictment he was convicted. (x) So, in a case of a commitment for an offence against the same repealed act, one of the objections upon which it was moved that the prisoner might be bailed, was, that the commitment did not charge the defendant with a felonious intent to rob, but merely with an intent feloniously to steal, take, and carry away. (y)
In prosecutions for the second offence described in the 4 G. 4. Upon the 2a c. 54. s. 5., where the prisoner is charged with demanding money, 4G. 4. where a &c. by, menaces, &c. with intent to steal, it should seem that an demand must actual or express demand by words is not necessary. In proceed- be proved, it ing upon indictments framed upon the second clause of the re- seems, that an pealed act 7 G. 2. c. 21. for assaulting, and by menaces, or in and
demand by any forcible or violent manner demanding money, &c. with a by words is felonious intent to rob, it was the better opinion, that an express
not necessary. demand of money by words was not necessary; and that the fact of stopping another on the highway, by presenting a pistol at his breast, was, if unexplained by other circumstances, sufficient evidence of a demand of money to be left to the jury. It was observed, that the unfortunate sufferer understood the language but too well; and the question was put, “Why must courts
of justice be supposed ignorant of that which common experi
ence makes notorious to all men ?”(a) And in one case upon that act, the court appear to have considered, that an actual demand was not necessary; and that whether there was a demand or not was a fact for the consideration of the jury under all the circumstances. (b)
But the indictment must aver from whom the nioney, &c. was The indictdemanded : and if the indictment be for threatening to accuse, &c. ment on 4G. it must allege who was the person threatened. One account of an from whom the indictment stated, that the prisoners, with force and arms, &c. 'money, &c. at, &c. maliciously and feloniously, by menaces, did demand the was demanded.
And an indictmonies of one John Axx, with intent the said monies of the said
actual or ex
ment on this
(1) Sharwin's case, Oakham, 1785. (y) Rex v. Remnant, 5 T. R. 169. cor. Gould, J, 1 East. P. C. c. 8. s. 13. 2 Leach 583. I Hawk. P. C. c. 55.
John Axx, then and there feloniously to steal, &c. Another threatening to
count stated, that the prisoners, with force and arms, &c. at, &c. accuse, &c., must state who maliciously and feloniously did threaten to accuse the said John
Axx of the crime of buggery, being a crime punishable by law with death, with a felonious intent to extort money from the said John Axx, and the said money, then and there, feloniously to steal, &c. The prisoners being convicted, it was objected in arrest of judgment, that the first of these counts did not state that any demand of money was made upon John Axx; that although the monies of John Axx were alleged to have been demanded, it was not stated from what person they were demanded; that it was not inconsistent with this count to suppose that the menace was offered to the wife, the child, or the servant of the said John Axx, or that the demand was made on his wife, child, or servant; and it was urged, that a demand of the monies of the said John Axx, made upon any other person than John Axx, and accompanied with a threat to any other person, would not be an offence within this statute: and even if such a demand upon any other person were within the act, still it was said that there ought to be a distinct and precise averment as to the person on whom the demand was made, that the party accused may know with certainty, the charge on which he is to be tried. To the last count it was objected, that it did not state that the prisoners threatened the said John Axx to accuse him of the crime; and it was submitted, for reasons similar to those mentioned in the objection to the other count, that the omission of such a material averment was fatal.
Judgment was respited upon these objections: and the case was submitted to the consideration of the Judges, who held both the
objections valid; and the judgment was accordingly arrested (c) Assault with
Another species of aggravated assaults is, where an assault is intent to spoil made with intent to spoil the garments or clothes of the person G. 1.c.23.8.11. assaulted. The statute 6 Geo. 1. c. 23. s. 11. provided for the
punishment of this offence; and the enactment is said to have been occasioned by the insolence of certain weavers and others, who, upon the introduction of some Indian fashions, prejudicial to their own manufactures, made it their practice to deface them, either by open outrage, by privily cutting, or by casting aqua fortis in the streets upon such as wore them. (2) The statute enacts, “ that if any person or persons shall wilfully and maliciously “ assault any person or persons in the public streets or highways, “ with an intent to tear, spoil, cut, burn, or deface, and shall tear, “spoil, cut, burn, or deface the garments or clothes of such per
son or persons, that then all and every person and persons so “offending, being thereof lawfully convicted, shall be, and be
adjudged to be guilty of felony: and every such felon and felons 6 shall be subject and liable to the like pains and penalties, as in
case of felony; and the courts by and before whom he, she, “ or they shall be tried, shall have full power and authority of “ transporting such felons for the space of seven years, upon the “ like terms and conditions as are given, directed, or enacted, by “ this or the act (4 G. 1. c. 11.) therein recited.”
(c) Rex v. Dunkley and others, 90.