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for setting fire to "one stack of barley, of the value of 100l., of R. P. Williams," it was objected that the word "barley" was not mentioned in the statute, and that there was no sufficient averment of the property being in R. P. Williams; but Patteson, J., thought that charging the offence as setting fire to a stack of barley was sufficient, and also that the averment of the property was sufficient. His lordship stated, that if be thought there was any weight in the objection as to the use of the word "barley," he would reserve the point for the opinion of the judges; but the prisoner was afterwards executed. Swatkin's case, 4 C. and P. 548 (a). So an indictment charging the prisoner with setting fire" to a certain stack of beans" is good, for the judges are bound to consider beans as a species of pulse. Woodward's case, 1 Moody, C. C. 323 (b).
The prisoner was indicted under the same statute for setting fire to a stack of wood. It appeared that between the house of the prosecutor and the next house there was an archway, over which a sort of loft was made, by means of a temporary floor, and that in this place there was an armful of straw and a score of faggots piled on one another. The prisoner set fire to the straw, which was burnt, as well as some of the faggots. Park, J., was clearly of opinion that this was not a stack of wood within the meaning of the act of parliament. Aris's case, 6 C. and P. 348 (c).
Upon an indictment for setting fire to a stack, a mistake as to the name of the place where the offence was committed is immaterial, the charge being transitory. Woodward's case, 1 Moody, C. C. 323 (d).
Setting fire to ships with intent to murder.] By the 7 Wm. 4 and 1 Vict. c. 89, s. 4, "whosoever shall unlawfully and maliciously set fire to, cast away, or in anywise destroy any ship or vessel, either with intent to murder any person, or whereby the life of any person shall be endangered, shall be guilty of felony, and being convicted thereof shall suffer death."
This sentence may be recorded, ante, p. 224.
[*256] *Under this section the prosecutor must prove, 1st. The setting fire, or other act of the prisoner by which the ship was cast away or destroyed. 2d. The intent to murder, from circumstances from which it may be inferred, or otherwise that the life of some person was endangered by the act done.
Setting fire to ships with intent to destroy the same.] By the 7 Wm. 4 and 1 Vict. c. 89, s. 6, (re-enacting with some verbal alterations the 7 & 8 Geo. 4, c. 30, s. 9, but modifying the punishment) "whosoever shall unlawfully and maliciously set fire to, or in anywise destroy any ship or vessel, whether the same be complete or in an unfinished state, or shall unlawfully and maliciously set fire to, cast away, or in anywise destroy any ship or vessel, with intent thereby to prejudice any owner or part owner of such ship or vessel, or of any goods on board the same, or any person that hath underwritten, or shall underwrite any policy of insurance upon such ship or vessel, or on the freight thereof, or
(a) Eng. Com. L. Rep. xix. 520. (b) 2 Eng. C. C. 323. (c) Eng. Com. L. Rep. xxv. 433. (d) 2 Eng. C. C. 323.
upon any goods on board the same, 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 the natural life of such of fender, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years."
As to the power to award hard labor and solitary confinement, see ante, p. 247.
The evidence upon an indictment under the 7 Wm. 4 and 1 Vict. c. 89, s. 6, for setting fire to a ship, will be in all material respects the same as that before detailed, upon an indictment for setting fire to a house, ante, p. 245.
Where a pleasure boat eighteen feet long was set fire to, Patteson, J., inclined to think it was a vessel within the meaning of the 7 & 8 Geo. 4, c. 30, s. 9, but the prisoner being acquitted on the merits, no decided opinion was given. Bowyer's case, 4 C. and P. 559 (a). Upon an indictment for setting fire to a barge, Alderson, J., said, that if the prisoner was convicted he would take the opinion of the judges as to whether a barge was within the statute. The prisoner was acquitted. Smith's case, 4 C. and P. 569 (b).
If the intent be laid to prejudice the underwriters, the policy must be produced (ante, p. 253,) and it must be proved that the ship sailed on her voyage.
It has been held that the part-owner of a ship may be convicted of setting fire to it with intent to injure the other part-owners, although he has insured the whole ship and promised that the other part-owners shall have the benefit of the insurance. Philip's case, 1 Moody, C. C. 263 (c). See ante, p. 53.
Setting fire to ships of war, &c.] By stat. 12 Geo. 3, c. 24, s. 8, if any person shall, either within the realm, or in any of the colonies, wilfully or maliciously set on fire or burn, or otherwise destroy, or cause to be fired or destroyed, or aid or assist in firing or destroying any of his Majesty's ships or vessels of war, whether afloat or building in any [*257] of the King's dock-yards, or building or repairing by contract in any private yard, or any of the King's arsenals, magazines, dock-yards, ropeyards, victualling-offices, or any of the buildings erected therein, or belonging thereto, or any timber or materials placed there for building, repairing, or fitting out of any ships or vessels, or any of the King's military, naval, or victualling stores, or other ammunition of war, or any place where the same or other ammunition of war is, are, or shall be kept, placed or deposited, every such offender shall be guilty of a capital felony.
By sec. 2, persons committing such offences out of the country may be indicted and tried in any county within the realm.
Negligent burning.] By statutes 6 Anne, c. 31, and 14 Geo. 3, c. 78, s. 84, if any menial or other servant, through negligence or carelessness, shall fire, or cause to be fired, any dwelling-house or otherwise, and be convicted thereof, by oath of one witness before two justices, he shall forfeit 100l. to the churchwardens, to be distributed amongst the sufferers
(a) Eng. Com. L. Rep. xix. 527. (b) Id. 531. (c) 2 Eng. C. C. 263.
by such fire; and if he should not pay the same immediately on demand of the churchwardens, he shall be committed by the justices to some workhouse or common gaol, or house of correction, for eighteen months, there to be kept to hard labor.
What amounts to an assault.] An assault is any attempt or offer with force or violence to do a corporal hurt to another, whether from malice or [*258] wantonness, as by striking at him or even holding *up the fist at him in a threatening or insulting manner, or with such other circumstances as denote at the time an intention, coupled with a present ability, of actual violence against his person, as by pointing a weapon at him when he is within the reach of it (1).
Striking at another with a cane, stick, or fist, although the party striking misses his aim; 2 Roll. Abr. 545, 1. 45; drawing a sword or bayonet, or throwing a bottle or glass with intent to wound or strike; presenting a gun at a man who is within the distance to which the gun will carry ; pointing a pitchfork at him when within reach of it; or any other act, indicating an intention to use violence against the person of another is an assault. 1 Hawk. c. 62, s. 1.
Although to constitute an assault there must be a present ability to inflict an injury, yet if a man is advancing in a threatening attitude to strike another, so that the blow would almost immediately reach him, if he were not stopped, and he is stopped, this is an assault. Stephens v. Myers, 4
C. and P. 349 (a).
So there may be an assault by exposing a child of tender years, or a person under the control and dominion of the party, to the inclemency of the weather. Ridley's case, 2 Campb. 650; 1 Russell, 605. But a mere omission to do an act cannot be construed into an assault. a man kept an idiot brother who was bed-ridden, in a dark house, without sufficient warmth or clothing, Burrough, J.,
Thus where room in his ruled that
(1) 1 Wheeler's C. C. 365. U. States v. Ortega, 4 Wash. C. C. Rep. 534. State v. Davis & al. 1 Hill, 46. State v. Beck & al. Id. 363. It is an assault to attempt to run against the wagon of another on the highway. People v. Lee, 1 Wheeler's C. C. 364. It is not an assault to point a cane at one in the street, in derision and for the purpose of insult, but without an intention to strike. Goodwin's case, 6 Rogers's Rec. 9.
(a) Eng. Com. L. Rep. xix. 414.
these facts would not support an indictment for assault and false imprisonment; for although there had been negligence, yet mere omission, without a duty, would not create an indictable offence. Smith's case, 2 C. and P. 449 (a).
If a master take indecent liberties with a female scholar, without her consent, though she do not resist, he will be guilty of a common assault. Nichol's case, Russ. and Ry. 130. And where a person professing medicine, desired a young girl who came to him as a patient, to strip naked, and himself took off her clothes and rubbed her with something from a bottle, and he was indicted as for a common assault: the judge left it to the jury to say whether the prisoner really believed that the stripping her could assist him in curing her; the jury having found that he had no such belief, and that it was wholly unnecessary, he was convicted: and on a case reserved, the judges held that the conviction for a common assault was right. Rosinski's case, 1 Moody, C. C. 19 (b).
If a man goes to bed to a married woman, and has connection with her, she consenting under the belief that it is her husband, this is an assault, and the fact that there was no resistance on her part makes no difference, as the fraud is sufficient to make it an assault. Williams's case, 8 C. and
P. 286 (c). See also Saunders's case, Ib. 265.
But an attempt to commit the misdemeanor of having carnal knowledge of a girl between ten and twelve years old, is not an assault, as the consent of the girl puts an end to the charge of assault. Meredith's case, 8 C. and P. 589 (d). Bank's case, post, 265.
*If parish officers cut off the hair of a pauper in the work- [ *259 ] house, with force and against his consent, it is an assault. Forde v. Skinner, 4 C. and P. 237 (e).
If a person puts a deleterious drug (as cantharides,) into coffee, in order that another may take it; if it be taken, he is guilty of an assault upon the party by whom it is taken. Button's case, 8 C. and P. 660 (ƒ). An unlawful imprisonment is also an assault. 1 Hawk. c. 62, s. 1.
It has been frequently said that every imprisonment includes a battery. B. N. P. 22; 1 Selw. N. P. Imprisonment, I. But this doctrine has been denied. Emmett v. Lyne, 1 N. R. 255.
When the injury is actually inflicted it amounts to a battery, which includes an assault, and this, however small it may be, as by spitting in a man's face or in any way touching him in anger without lawful provocation. 4 East, P. C. 406; B. N. P. 15; Hawk. P. C. b. 1, c. 62, s. 12; 1 Russell, 604.
In cases of assault, as in all other offences, if several act in concert, encouraging one another and co-operating, they are all equally guilty, though only one commit the actual assault. Per Bayley, J., Anon. 1 Lewin, C. C. 17 (1).
What does not amount to an assault.] Although it was formerly doubted, it is now clear that no words, whatever nature they may be of, will constitute an assault. Hawk. P. C. b. 1, c. 62, s. 1; 1 Bac. Ab. Assault and Battery (A); 1 Russell, 604. But words may qualify what would (1) Bell v. Miller, 5 Ohio, 251.
(a) Eng. Com. L. Rep. xii. 215.
(b) 2 Eng. C. C. 19. (c) Eng. Com. L. Rep. xxxiv. 392. (e) Id. xix. 364. (f) Id. xxxiv. 573.
otherwise be an assault, by showing that the party intends no present corporal injury, as where a person meeting another laid his hand upon his sword saying, "If it were not assize time I would not take such language from you;" for it shows that he had not a design to do the party any corporal hurt. Turberville v. Savage, 1 Mod. 3; 2 Keb. 545 (1).
What does not amount to an assault-accident.] Where an injury is purely accidental and the party wholly without fault, it will not amount to a battery. Weaver v. Ward, Hob. 134; 2 Roll. Ab. 548. Thus where the defendant was indicted for throwing down skins in a yard, being a public place, by which a man's eye was beaten out, it appearing that the wind blew the skin out of the way, and that the injury was caused by this circumstance, the defendant was acquitted. Gill's case, I Str. 190. But if in the course of an unlawful act a blow is struck, as where two persons are engaged in fighting, and one of them accidentally and unintentionally strikes a third person, this is not such an accident as will prevent the blow fro:n being a battery. James v. Campbell, 5 C. and P. 372 (c.)
There is a distinction in cases of accident, with regard to the liability of the party, in civil and in criminal proceedings. Thus, it is said by Hawkins, that it seems that a man, shall not forfeit a recognizance of the peace by a hurt done to another merely through negligence or mischance,  as where one soldier hurts another by *discharging a gun in exercise without sufficient caution; for notwithstanding such person must in a civil action give the other satisfaction for the damage occasioned by his want of care, yet he seems not to have offended against the purport of such a recognizance, unless he be guilty of some wilful breach of the
Hawk. P. C. b. 1, c. 60, s. 27. It is said that it may be deemed a general rule in criminal cases, that the same facts which make killing homicide by misadventure (vide post) will be a good defence upon an indictment for a battery. Archb. Cr. Law, 418, 7th ed.
What shall not amount to an assault-amicable contest.] An injury received in playing at any lawful sport, as cudgels, by consent, will not amount to a battery in law, for the intent of the parties is not unlawful but rather commendable, and tending mutually to promote activity and courage; yet it seems it would be otherwise, if the fighting were with naked swords, because no consent can make so dangerous a diversion lawful. Hawk. P. C. b. 1, c. 60, s. 26. Com. Dig. Pleader, (3 M. 18.) Bul. N. P. 15. In an action for assault and battery, where it was insisted as a defence that the plaintiff and defendant fought by consent, Parker, C. B., said, that fighting being unlawful, the consent of the plaintiff would be no bar to the action; and he cited a case where Reynolds, C. B., in an action to recover five guineas on a boxing-match, held the consideration illegal. Boulter v. Clarke, B. N. P. 16. These decisions appear only to apply to unlawful games, amongst which boxing and boxing-matches are to be considered. See post, as to what shall be deemed lawful sports, title, Murder.
(1) Commonwealth v. Eyre, 1 S. & R. 347.
(a) Eng. Com. L. Rep. xxiv. 367.