Sivut kuvina

turn, in the first instance. Green v. Goddard, Salk. 641 ; Tullay v. Read, 1 C. and P. 6(a); B. N. P. 19. But by this must be understood a force proportioned to the violence of the trespasser, and only for the purpose of subduing his violence. See 1 Russell, 609, (n.)

is A civil trespass,” says Holroyd J., “will not justify the firing a pistol at the trespasser, in sudden resentment or anger. If a person takes forcible possession of another's close, so as to be guilty of a breach of the peace, it is more ihan a trespass ; so, if a man with force invades and enters into the dwelling of another. But a man is not authorized to fire a pistol on every invasion or intrusion into his house. He ought, if he has a reasonable opportunity, to endeavor to remove the trespasser without having recourse to the last extremity.” Meade's case, i Lewin, C. C. 185, stated post. It seems that in all cases of resistance to trespassers, the party resisting will be guilty in law of an assault and battery, if he resists with such violence that it would, if death had ensued, have been manslaughter. Vide post, titles Manslaughter and Murder.

What does not amount to an assault-execution of process by officers, &c.] A peace officer, or sheriff's officer may justify laying hands upon a party to arrest him. 2 Roll. Ab. 546. But a *sheriff's ( 263 ) officer, in order to justify this, must have a writ.or warrant. Harrison o. Hodgson, 10 B. and C. 445 (b). A peace officer, like others, must only use the degree of force necessary for the occasion, and will be answerable for the excess ; as where a constable had apprehended a boy fighting, and a by-stander said, “you ought not to handcuff the boy," upon which the constable gave him a blow with a stick, and took him to the watchhouse : in an action by the party struck, against the constable, it appeared that the plaintiff had placed himself before the defendant for the purpose of preventing him from taking the boy to the watchhouse. Burrough, J., said, “there can be no doubt that the constables were right in stopping the fight, and would be justified in apprehending any one who aided or abetted those who fought, but it did not appear that the defendant did either. If they thought that as the defendant was apprehending the boy, the plaintiff placed himself before the defendant to hinder him from doing so, that would justify the defendant in detaining the plaintiff at the watchhouse, but not in beating him; but if the plaintiff only said, you have no right to handcuff the boy,' the defendant was clearly a wrongdoer as to the whole.” Levy v. Edwards, 1 C. and P. 40 (c). So, where one of the marshals of the city of London, whose duty it was on the days of public meetings in the Guildhall, to see that a passage was kept for members of the corporation, directed a person in front of the crowd to stand back, and on being told by him that he could not, for those behind him, struck him iinmediately on the face, saying, that he would make him, it was ruled that in so doing, he exceeded his authority; that he should have confined himself to the use of pressure, and that he should have waited a short time, to afford an opportunity for removing the party in a more peaceable way. Imason r. Cope, 5 C. and P. 193 (d).

A coroner; Garnett v. Ferrand, 6 B. and C. 611 (6); and a magistrate upon a preliminary inquiry ; Cox v. Coleridge, 1 B. and C. 37 (f); may

(d) Id. xxiv. 274.

(@) Eng. Com. L. Rep. xi. 297. (b) Id. xxi. 109. (c) Id. xi. 306.

(e) Id. xiii. 237. (f) Id. viii. 20.

justify a forcible exclusion of a party from the room, even although he be the attorney of the person accused. Where, however, the inquiry is of a final and judicial nature, all persons have a right to be present. Daubney v. Cooper, 10 B. and C. 237 (a).

Summary conviction bar to an indictment for assault.) A summary conviction under the stat. 9 Geo. 4, c. 31, s. 27, is a bar to an indictment for the same assault. By sec. 28, it is enacted, “ that if any person against whom any such complaint shall have been preferred for any common assault or battery, shall have obtained such certificate as aforesaid, (a certificate that the justices deem the offence not to be proved, or to have been justified, or so trifling as not to merit any punishment, and accordingly dismiss the complaint) or having been convicted, shall have paid the whole amount adjudged to be paid, or have suffered the punishment awarded for. non-payment; in every such case, he shall be released from all further or other proceedings, civil or criminal for the same cause.” [*264] By sec. 29, it is provided, “ that in case the justices shall find *the assault or battery complained of to have been accompanied by any attempt to commit felony, or shall be of opinion that the same is from any other circumstance a fit subject for a prosecution by indictment, they shall abstain from any adjudication thereon, and shall deal with the case in all respects in the same manner as they would have done before the passing of the act : provided also, that nothing therein contained shall authorise any justice of the peace to hear and determine any case of assault or battery in which any question shall arise, as to the title to any lands, tenements, or hereditaments, or any interest therein, or accruing therefrom, or as to any bankruptcy, insolvency, or any execution, under the process of any court of justice.

It seems where the assault is with intent to coinmit a felony, it is optional with the justices whether they will convict the offender of a common assault, or direct him to be indicted. Where the charge was of such an assault, and the magistrates proceeded to convict, on an application for a certiorari to quash the conviction, Lord Tenterden said that the conviction was for a common assault, and that the act gave the justices a discretionary power to judge whether the charge amounted in substance to more than a common assault. Parke, J., observed, that at all events a certiorari could hardly be granted, for if the magistrates had no jurisdiction, the conviction was a nullity. Virgil's case, i Lewin, C. C. 16, (n.) And sec Anon. 1 B. and Ad. 382 (b).

Conviction of an assault upon an indictment for felony.] By the recent act ainending the law relating to offences against the person, 7 Wm. 4 and 1 Vict. c. 85, s. 11, it is enacted, " that on the trial of any person for any of the offences hereinbesore mentioned, or for any felony whatever, where the crime charged shall include an assault against the person, it shall be lawful for the jury to acquit of the felony, and to find a verdict of guilty of assault against the person indicted, if the evidence shall warrant such finding; and when such verdict shall be found, the court shall have power to imprison the person so found guilty of an assault for any term not exceeding three years."

(a) Eng.Com. L. Rep. xxi. 64. (b) Id. xx. 405.

This section applies to offences committed before it came into operation. Hagau's case, 8 C. and P. 167 (a). A person indicted for bestiality, cannot be found guilty of an assault under the above clause; but if acquitted of the capital charge, he may be detained in custody, and indicted for a misdemeanor in attempting to commit a felony. Eaton's case, 8 C. and P. 417 (b..

Where a man, indicted for a ràpe, had had connection with a married woman, to which she consented, under the belief that he was her husband, he was acquitted of the capital offence, and found guilty of an assault under this section. Williams's case, 8 C. and P. 286 (c). See also Saunders's case, Ib. 265 (d).

But the offence of carnally knowing and abusing a female child under ten years of age, is not a felony which includes an assault within the above statute, even although it be stated in the indictment *that the [ *265 ] prisoner made an assault on the child ; and the prisoner must either be found guilty of the whole charge, or acquitted. Per Patteson, J., Banks's case, 8 C. and P. 574 (e). So an attempt to commit the misdemeanor of having carnal knowledge of a girl between ten and twelve years of age, is not an assault within the act. Meredith's case, Ib. 589 (f).

Where a prisoner was indicted under the 7 Win. 4 and i Vict. c. 85, s. 3, for a highway robbery, accompanied with violence, and the jury returned a verdict finding the prisoner guilty of an assault, but " without any intention to commit any felony.It was held by Park, J., and Alderson, B., that such special finding did not take the case out of the operation of the 7 Wm. 4 and 1 Vict. c. 85, s. 11. Ellis's case, 8 C. and P. 654 (g).

Where a party is convicted of an assault under the above enactment, and sentenced to imprisonment, hard labor may form a part of the son. tence. Williams's case, and Ellis's case, supra.


Assaults with intent to commit felony, &c.

265 On officers endeavoring to save shipwrecked property


On officers employed to prevent smuggling

266 With intent to spoil clothes • 266 By workmen

· 267

Under this head are comprised certain assaults, to which, being of an aggravated character, the legislature has attached additional punishments. Various other enactments of the same nature will be found stated in a subsequent part of this work in connection with the offence, with intent to commit which, the assault is charged to have been made.

In prosecuting for the offence of an aggravated assault, the statute points out the particular evidence necessary to be given in addition to the common proof of assault.

(d) Id. 383. (e) Id.

(@) Eng. Com. L. Rep. xxxiv. 338. (6) Id. 459. (c) Id. 392

xxxiv. 531. (f) Id. 539. (g) Id. 570.

Assaults with intent to commit felony, &c.] By statute 9 Geo. 4, c. 31, s. 25, it is enacted, “ that where any person shall be charged with and convicted of any of the following offences as misdemeanors, that is to say, [ *266 ] of any assault with intent to commit felony, of any *assault upon any peace officer, or revenue officer, in the due execution of his duty, or upon any person acting in aid of such officer; of any assault upon any person, with intent to resist or prevent the lawful apprehension or detainer of the party so assaulting, or of any other person, for any offence for which he or they may be liable by law to be apprehended or detained ; or of any assault committed in pursuance of any conspiracy to raisethe rate of wayes : in any such case, the court may sentence the offender to be imprisoned with or without hard labor in the common gaol or house of correction, for any term not exceeding two years, and may also (if it shall so think fit) fine the offender, and require him to find sureties for keeping the peace (1).”

Assaults on officers endeavoring to save shipwrecked property, &c. By statute 9 Geo. 4, c. 31, s. 24, it is enacted, “ that if any person shall assault and strike, or wound any magistrate, officer, or other person whatsoever, lawfully authorised, on account of the exercise of his duty in or concerning the preservation of any vessel in distress, or of any vessel, goods, or effects wrecked, stranded, or cast on shore, or lying under water; every such offender, being convicted thereof, shall be liable to be transported beyond the seas for the term of seven years, or to be imprisoned, with or without hard labor, in the common gaol or house of correction, for such term as the court shall award.”

Assaults on officers employed to prevent smuggling. By stat. 3 & 4 Wm. 4, c. 53, s. 61, it is enacted, “ that if any person shall by force or violence assault, resist, oppose, molest, hinder, or obstruct, any officer of the army, navy, or marines, being duly employed for the prevention of smuggling, and on full pay, or any officer of customs or excise, or other person acting in his or their aid or assistance, or duly employed for the prevention of smuggling, in the due execution of his or their office or duty, such person being thereof convicted, shall be transported for seven years, or sentenced to be imprisoned in any house of correction or common gaol, and kept to hard labor, for any term not exceeding three years, at the discretion of the court before whom the offender shall be tried and convicted as aforesaid.”

Assault with intent to spoil clothes. By the 6 Geo. 1, c. 23, s. 11, 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 person or persons, then all and every person and persons so offending, and being thereof lawfully convicted, shall be, and

(1) An assault with intent to kill is no felony at common law, though anciently it was so considered. Commonwealth r. Barlow, 4 Mass. 439.


be adjudged to be, guilty of felony ; and every such felon and felons shall be subject and liable to the like pains and penalties as in case of felony.

This statute is now repealed, but it is mentioned here for the purpose introducing the following case, in which much discussion *took ( *267 ] place with regard to the proof of intention, a question of great importance in questions of this nature.

The prisoner had frequently accosted Miss A. Porter and her sister, Miss Sarah Porter, using very indecent language. Meeting them in St. Jaines's Street, he came behind Miss Sarah Porter, muttered some gross language, and upon her making an exclamation of alarm, struck her a blow on the head. The Miss Porters then ran towards the door of their own house, and while Miss S. Porter was ringing the bell, the prisoner, who had followed them, stooped down, and struck Miss A. Porter with great violence on the hip. The blow was given with some sharp instrument, which tore and cut quite through her clothes, and gave a very severe wound. Buller, J., told the jury, that in order to constitute an offence within the statute, it was necessary, first, that the assault should be made in the public street or highway ; 2dly, that it should be made wilfully and maliciously ; 3dly, that it should be made with an intent to tear, spoil, cut, &c. the garments, or clothes of some person ; and 4thly, that the garments or clothes of such person should be actually torn, spoiled, cut, &c. Upon the third point he stated, that if the intent of the prisoner was to cut both the clothes and the person, and in carrying such intent into execution, the clothes alone were cut, it would clearly be within the meaning of the act; or if the intention were to injure the person only, and not to cut the clothes, yet, if in carrying such intention into execution, the assault was made with such an instrument, or under such circumstances, as plainly showed that the execution of the intention to injure the person must unavoidably tear, spoil, cut, &c.,, the clothes, they might consider whether a person who intends the end, does not also intend the means by which it is to be attained.—The jury found the prisoner guilty, but upon a case reserved, a majority of the judges were of opinion that the conviction was wrong. They thought, that in order to bring a case within the statute, the primary intention ought to be the tearing, spoiling, cutting, &c. of the clothes; whereas in this case, the primary intention of the prisoner appeared to have been the wounding of the person of the prosecutrix. William's case, 1 Leach, 533. 1 East, P. C. 424. It may be doubted whether the opinion of Buller, J., in this case was not better founded than that of the judges. It appears to be supported by Cox's case, Russ. and Ry. 362 (a), and Gillow's case, 1 Moody, C. C. 85 (6), stated post. The decision of the judges, indeed, in William's case, proceeded principally upon another point.

Assault by workmen.] By stat. 6 Geo. 4, c. 129, s. 3, “ if any person shall, by violence to the person or property, or by threats or intimidation, or by molesting or in any way obstructing another, force, or endeavor to force, any journeyman, manufacturer, workman, or other per. son, hired or employed in any manufacture, trade, or business, to depart from his hiring, employment, or work, or to return his work

(a) 1 Eng. C. C. 362 (0) 2 Ibid. 85

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