« EdellinenJatka »
case, Cro. Car. 482; nor was it material whether the woman was at last married or defiled with or without her consent, if she were under force at the time of the taking, for such construction was equally within the words and meaning of the statute, (3 Hen. 7,) which was to protect the weaker sex from both force and fraud. Upon an indictment under the 9 Geo. 4, c. 31, however, it is not necessary to prove either a marriage or defiling, but only an intent to marry or defile, which, like the averment of " motives of lucre," will in general appear, from the whole circumstances of the case.
Venue.] Under the statute of 3 Hen. 7, it was held, that where a woman was taken away forcibly in one county, and afterwards went voluntarily into another county, and was there married or defiled with her own consent, the offender was not indictable in either county, on the ground that the offence was not complete in either. Gordon's case, 1 Russ. 572. This point cannot, however, arise upon the statute 9 Geo. 4, c. 31, the offence under that statute being complete, by the taking or detaining, with intent, &c. And, moreover, by 7 Geo. 4, c. 64, s. 12, an offence begun in one county, and completed in another, may be tried in either county.
Abduction of girls under sixteen.] The offence of taking away a maid or woman child unmarried, under the age of sixteen, from the custody of her father, &c. was formerly provided for by statute 4 and 5 P. and M. c. 8, s. 2 and 3, (now repealed) and was likewise, as it seems, an offence at common law. Hawk. P. C. b. 1, c. 41, s. 8. And by statute 9 Geo. 4, c. 31, s. 20, it is enacted, that if any person shall unlawfully take, or cause to be taken any unmarried girl, being under the age of six teen years, out of the possession, and against the will of her father and mother, or of any other person having the lawful care or charge of her, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable to suffer such punishment by fine or imprisonment, or by both, as the court shall award.
Upon an indictment for this offence, the prosecutor must prove-1, the taking of the girl (and that she is under sixteen) out of the possession of her father, &c.; 2, that it was against the will of the father, &c. It will be observed, that neither motives of lucre, nor an intent to marry or defile, are made constituent parts of this offence, as in the preceding section of the act.
*Proof of the taking of the girl out of the possession of the [ *240 ] father, &c.] It has been held that an illegitimate child is within the protection of the statute 4 and 5 P. and M. Cornforth's case, 2 St. 1162. Hawk. P. C. b. 1, c. 41, s. 14. And the same would be held under the new statute. The taking away may be effected either by force or fraud, or by obtaining the consent of the girl herself to leave her father, &c. Thus it is said by Herbert, C. J., that the statute (of P. and M.) was made to prevent children from being seduced from their parents or guardians by flattering or enticing words, promises or gifts, and married in a secret way to their disparagement. Hicks v. Gore, 3 Mod. 84. So it is no excuse that the defendant being quently invited to the house, made common blandishments of a lover, to
related to the girl's father, and freuse of no other seduction than the induce the girl secretly to elope and
marry him, if it appear that it was against the consent of the father. Twisleton's case, 1 Lev. 257; 1 Sid. 387; 2 Keb. 432; Hawk. P. C. b. 1, c. 41, s. 10; 1 Russell, 579.
Proof of the want of consent of the father, &c.] The prosecutor must prove the want of consent of the father or mother, or other person having the lawful care or charge of the girl. Upon the death of the father, the mother retains her lawful authority over the child, notwithstanding a second marriage, and the consent of the second husband is immaterial. Ratcliffe's case, 3 Rep. 39. Whether where a girl under sixteen is placed by the father and mother under the temporary care of another, by whose collusion, and with whose consent she is taken away and married, it will be an offence within the statute, does not appear to be well decided. The following case arose upon the statute of Philip and Mary. A widow fearing that her daughter, a rich heiress, might be seduced into an imprudent marriage, placed her under the care of a female friend, (Lady Gore) who sent for her son from abroad, and married him openly in the church, and during canonical hours, to the heiress, before she had attained the age of sixteen, and without the consent of her mother, who was her guardian. It was held by Herbert, C. J., that in order to bring the offence within the statute, it must appear that some artifice was used; that the elopement was secret, and the marriage to the disparagement of the family. Hicks v. Gore, 3 Mod. 84; Hawk. P. C. b. 1, c. 41, s. 11. In this case it is to be noted, says Mr. East, that the mother had placed the child under the care of Lady Gore, by whose procurance the marriage was effected; but nothing is stated in the report to show that the chief justice laid any stress on that circumstance. And in truth, it deserves good consideration before it is decided, that an offender acting in collusion with one who has the temporary custody of another's child for a special purpose, and knowing that the parent or proper guardian did not consent, is yet not within the statute; for then every schoolmistress might dispose of the children committed to her care, though such delegation of a child for a particular purpose be no delegation of the power of disposing of her in marriage; but [ *241 ] *the governance of the child in that respect, may still be said to remain in the parent. 1 East, P. C. 457. There must be a continuous want of consent on the part of the parent, for if the consent be once given, it cannot, it is said, be revoked. Calthorpe v. Axtell, 3 Mod. 169. Hawk. P. C. b. 1, c. 41, s. 13.
Offence at common law.] A child en ventre sa mere, cannot be the subject of murder, vide post, “ Murder." At common law an attempt to
destroy such a child appears to have been held to be a misdemeanor. Chitt. Cr. Law, 798; 1 Russ. 553, 2d ed. The offence was provided for by the 9 Geo. 4, c. 31, s. 13, which has been repealed, and the 7 Wm. 4, and 1 Vict. c. 85, s. 6, substituted.
Statute law.] By the 7 Wm. 4 and 1 Vict. c. 85, s. 6, "whosoever with intent to procure the miscarriage of any woman, shall unlawfully administer to her, or cause to be taken by her, any poison, or other noxious thing, or shall unlawfully use any instrument, or other means whatsoever, with the like intent, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be transported beyond the seas for the term of his or her natural life, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years."
By sec. 8, "where any person shall be convicted of any offence punishable under this act, for which imprisonment may be awarded, it shall be lawful for the court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labor, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment with hard labor, not exceeding one month at any one time, and not exceeding three months in any one year as to the court in its discretion shall seem meet."
Upon an indictment under the above act, the prosecutor must prove, 1, The intent to procure miscarriage; 2, The administering or caus-  ing to be taken; 4, Some poison or other noxious thing, or the use of some instrument, or other means, with like intent.
Proof of the intent.] The intent will probably appear from the other circumstances of the case. That the child. was likely to be born a bastard, and to be chargeable to the reputed father, the prisoner, would be evidence to that effect. Proof of the clandestine manner in which the drugs were procured or administered would tend the same way.
Proof of the administering.] The prosecutor must then prove the administering, or the causing to be taken of the poison or other noxious thing.
Where the prisoner gave the prosecutrix a cake containing poison, which she merely put into her mouth, and spit out again without swallowing any portion of it; the judges held, that a mere delivery did not constitute an administering within the 43 Geo. 3, c. 58, and that there was no administering unless the poison was taken into the stomach. Cadman's case, Carr. Sup. 237. And see Harley's case, 4 C. and P. 370 (a), where the report of this case in 1 Moo. C. C. 114 is stated to be inaccurate. But to constitute an administering, there need not be an actual delivery by the hand of the prisoner. Harley's case, supra.
Proof of the nature of the thing administered.] The nature of the poison or other noxious thing must be proved. Upon an indictment on the 43 Geo. 3, c. 58, s. 5, for administering savin to a woman not quick with child, with intent, &c., the charge was that the prisoner administered" six ounces of the decoction of a certain shrub called savin, then and there,
(a) Eng. Com. L. Rep. xix. 423.
being a noxious and destructive thing." It appeared that the prisoner had prepared the medicine by pouring boiling water on the leaves of the shrub, and the medical men examined stated that such preparation is called an infusion and not a decoction. It was objected that the medicine was misdescribed, but Lawrence, J., overruled the objection. He said infusion and decoction are ejusdem generis, and the variance is immaterial. The question is, whether the prisoner administered any matter or thing to the woman with intent to procure abortion. Phillips's case, 3 Campb. 78. The authority of this decision appears to have been followed by Vaughan, B., in a recent case. The prisoner was indicted under the 9 Geo. 4, c. 31, s. 13, for administering saffron to the prosecutrix, with intent to procure abortion. The counsel for the prisoner cross-examining as to the innocuous nature of the article administered, Vaughan, B., said, "does that signify? It is with the intention that the jury have to do; and if the prisoner administered a bit of bread merely with the intent to procure abortion, it is sufficient to constitute the offence contemplated by the act of parliament." Coe's case, 6 C. and P. 403 (a). It should be observed, that the words of the statute were the same as are used in the 7 Wm. 4 and 1 Vict. c. 85, s. 6, "any poison or other noxious thing," [ *243 ] or any instrument or other means whatsoever." The above case does not appear to be included within the former words of the statute, and it is very questionable whether the words "other means whatsoever," from the situation in which they are found in the statute, are not to be confined to means ejusdem generis with instruments, and not with drugs.
If the attempt to procure abortion has been by means of instruments, the fact must be laid and proved accordingly.
The former statutes on this subject, the 43 Gco. 3, c. 58, and 9. Geo. 4, c. 31, s. 14, distinguished between the case where the woman was quick and was not quick with child, and under both acts the woman must have been pregnant at the time. See Scudder's case, 3 C. and P. 605 (b); 1 Moo. C. C. 216 (c). The terms of the recent act are "with intent to procure the miscarriage of any woman," omitting the words "being then quick with child," &c.; and it should therefore seem to be now immaterial whether the woman is or is not pregnant, if the prisoner, believing her to be so, administers the drug with the intent of producing abortion.
If the prosecutor fail in proving the intent, the prisoner may be convicted of an assault under the 11th sec. of the 7 Wm. 4 and 1 Vict. c. 85, see post, 264, whether the act done be the administering of some deleterious drug, (see Button's case, 8 C. and P. 660) (d), or the using of * some instrument, provided the woman was not a consenting party, or some fraud was practised upon her to induce her to give her consent.
An affray is the fighting of two or more persons in some public place,
(a) Eng. Com. L. Rep. xxv. 453. (b) Id. xiv. 478. (c) 2 Eng. C. C. 216. (d) Eng. Com. L. Rep. xxxiv. 573.
to the terror of the king's subjects; for if the fighting be in private, it is not an affray, but an assault. 4 Bl. Com. 145. See Timothy v. Simpson, 1 C. M. and R. 757. It differs from a riot, in not being premeditated. Thus if a number of persons meet together at a fair, or market, or upon any other lawful or innocent occasion, and happen on a sudden quarrel to engage in fighting, they are not guilty of a riot, but of an affray only (of which none are guilty but those who actually engage in it); because the design of their meeting was innocent and lawful, and the breach of the peace happened without any previous intention. Hawk. P. C. b. 1, c. 65, s. 3. Two persons may be guilty of an affray, but it requires three or more to constitute a riot. Vide post. Mere quarrelsome words will not make an affray. 4 Bl. Com. 146. 1 Russell, 271.
To support a prosecution for an affray, the prosecutor must prove—1, the affray, or fighting, &c.; 2, that it was in a public place; 3, that it was to the terror of the king's, subjects; 4, that two or more persons were engaged in it (1).
At common law.] The offence of arson, which is a felony at common law, is defined by Lord Coke to be the malicious and voluntary burning the house of another, by night or by day. 3 Inst. 66. 1 Hale, P. C. 566.
Upon an indictment for this offence, the prosecutor must prove-1, the burning; 2, of the house of another; 3, that the offence was committed voluntarily and maliciously.
Proof of the burning.] To constitute arson at common law, it must be proved that there was an actual burning of the house, or of some part of it, though it is not necessary that any part should be wholly consumed, or that the fire should have any continuance, but be put out, or go out of itself. 2 East, P. C. 1020. 1 Hale, P. C. 569 (2).
(1) One may be acquitted and the other convicted. It may be fight without consent being proved. Cash v. State, 2 Tenn. 198. 295. Simpson v. State, 5 Yerger, 356.
an affray though the parties Duncan v. Comm. 6 Dana,
Carlin v. State, 4 Ibid. 143.
One who aids, assists and abets an affray, is guilty as principal. (2) Comm. v. Van Schaack, 16 Mass. 105. People v. Butler, 16 Johns. 203. See Ball's