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points out the particular evidence necessary to be given in addition to the common proof of assault.
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 wages 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 v. 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 of 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. James'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. 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 (b), 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 person, 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. (b) 2 Ibid. 85
before the same shall be finished, or prevent, or *endeavor to prevent, any journeyman, manufacturer, workman, or other person, not being hired or employed, from hiring himself to, or accepting work or employment from, any person or persons; or if any person or persons shall use or employ violence to the person or property of another, or threats or intimidation, or shall molest or in any way obstruct another, for the purpose of forcing or inducing such person to belong to any club or association, or to contribute to any common fund, or to pay any fine or penalty on account of not belonging to any club or association, or not having contributed, or refused to contribute to any common fund, or to pay any fine or penalty; or on account of not having complied, or refused to comply, with any rules, orders, or regulations, made to obtain an advance or reduce the rate of wages, or to lessen or alter the hours of working, or decrease or alter the quantity of work, or regulate the mode of carrying on any manufacture, trade, or business, or the management thereof; or if any person shall, by violence to the person or property of another, or by threats or intimidation, or by molesting, or in any way obstructing another, force, or endeavor to force, any manufacturer or person carrying on trade or business, to make any alteration in his mode of carrying on or conducting such manufacture, trade, or business, or to limit the number of his apprentices, or the number or description of his journeymen, workmen or servants; every one so offending, or aiding, abetting, or assisting therein, shall be imprisoned only, or imprisoned and kept to hard labor, for any period not exceeding three calendar months."
By the 5 Geo. 3, c. 30, the concealing or embezzling of his effects, to [*269] the value of 20l. by a bankrupt, was made a capital *felony; but the punishment was changed to transportation for life by the 1 Geo. 4, c. 115, s. 1. By the 6 Geo. 4, c. 16, the sum is reduced to 10l.
By the 112th section of that statute it is enacted, "that if any person against whom any commission has been issued, or shall hereafter be issued, whereupon such person hath been, or shall be declared bankrupt, shall
not, before three of the clock upon the forty-second day, after notice thereof in writing, to be left at the usual place of abode of such person, or personal notice, in case such person be then in prison, and notice given in the London Gazette of the issuing of the commission and of the meetings of the commissioners, surrender himself to them, and sign or subscribe such surrender, and submit to be examined before them from time to time upon oath, or being a Quaker, upon solemn affirmation; or if any such bankrupt, upon such examination, shall not discover all his real or personal estate, and how and to whom, upon what consideration, and when, he disposed of, assigned, or transferred any of such estate, and all books, papers, and writings relating thereunto, (except such part as shall have been really and bona fide before sold or disposed of in the way of his trade, or laid out in the ordinary expense of his family); or if any such bankrupt shall not, upon such examination, deliver up to the commissioners all such part of such estate, and all books, papers, and writings relating thereunto, as be in his possession, custody, or power, (except the necessary wearing apparel of himself, his wife and children), or if any such bankrupt shall remove, conceal, or embezzle any part of such estate, to the value of 101. or upwards, or any books of account, papers, or writings relating thereto, with intent to defraud his creditors, every such bankrupt shall be deemed guilty of felony, and be liable to be transported for life, or for such term, not less than seven years, as the court before which he shall be convicted shall adjudge; or shall be liable to be imprisoned only, or imprisoned and kept to hard labor, in any common gaol, penitentiary house, or house of correction, for any term not exceeding seven years."
There are four different offences created by this statute:-1, the not surrendering and submitting to be examined; 2, the not discovering all his real and personal estate; 3, the not delivering up to the commissioners all such part of such estate, and all books, &c. as be in his possession, &c.; 4, the removing, concealing, or embezzling part of such estate, to the value of 10l. and upwards.
All these acts must be "with intent to defraud his creditors."
The indictment under the above act must still show that the party has become bankrupt, and consequently must state the trading, petitioning creditor's debt, and an act of bankruptcy; Jone's case, 4 B. and Ad. 345 (a); and must conclude against the form of the statute, otherwise it will be bad. Ratcliffe's case, 2 Lew. C. C. 57.
To support a prosecution against a bankrupt under this statute, for concealment of his effects, the prosecutor must prove-1, the trading; 2, the petitioning creditor's debt; 3, the act of bankruptcy; 4, the commission, or fiat; 5, the oath of the *commissioners; 6, the ad- [ *270 ] judication; 7, the notice to the bankrupt; 8, the notice in the Gazette; 9, the bankrupt's examination; 10, the not disclosing and discovering; 11, the value of the property concealed; and lastly, the intent of the bankrupt to defraud his creditors.
Proof of the trading.] The prosecutor must give strict evidence of all the requisites of bankruptcy. While the commission subsists, its validity may be assumed for certain civil purposes; but where a criminal
(v) Eng. Com. L. Rep. xxiv. 71.
case occurs, unless the party was a bankrupt, all falls to the ground. Per Lord Ellenborough, R. v. Punshon, 3 Campb. 97. The trading must, therefore, be proved in the same manner as in a civil action, by the assignees, where strict evidence of their title is required. See Rosc. Dig. Ev. N. P. 551, 5th ed.
The prisoner may prove that the trading, in respect of which he has been declared a bankrupt, was a trading by him under age; which will be an answer to the indictment, as no commission can be sustained upon such a trading. Belton v. Hodges, 9 Bingh. 365 (a).
Proof of the petitioning creditor's debt.] The petitioning creditor's debt must be proved in the same manner as where strict evidence of it is given in a civil action. It will be sufficient, however, to prove an admission of the debt by the prisoner himself. But where in an indictment under the former statute, 5 Geo. 2, c. 30, s. 1, for concealment, the debt was alleged to be due to A. B. and C., surviving executors of the last will and testament of D.; after proof that A. B. and C. were the executors, and were directed by the will to carry on the business, it was proposed to give in evidence an admission by the prisoner, that he was indebted "to the executors," Le Blanc rejected the evidence, it not appearing that C. had assented to the carrying on of the business as trustee under the will. He said that the prisoner might mean that he was indebted to two of the executors only, and that it was going too far to infer that he meant all the three. Barnes's case, 1 Stark. 243 (b).
Whether a creditor of the bankrupt is a competent witness to prove the petitioning creditor's debt, is a question which does not appear to be well settled. Vide infra. Where for this purpose the petitioning creditor was called, Park, J., suggested a doubt as to his competency; but having conferred with Patteson, J., he said he would receive the evidence, subject to further consideration. The debt was, however, proved by other witnesses. Walter's case, 5 C. and P. 140 (c).
Patteson, J., and Alderson, B., are reported to have held that the balance sheet of a bankrupt, given on oath under his commission, is not admissible to prove the petitioning creditor's debt upon an indictment against such bankrupt for contealing his effects. Britton's case, 1 Moo. and R. 297. But this case seems to have been overruled, see ante, p. 46.
Proof of the act of bankruptcy.] The act of bankruptcy also [ *271] must be strictly proved, in the same manner as in an action by the assignees.
It was held, in one case, that on a prosecution under the 5 Geo. 2, a creditor who had not proved his debt might be called to establish the act of bankruptcy. Bullock's case, 2 Leach, 996, 1 Taunt. 71. But in several civil cases, it has been ruled that a creditor, whether he has proved or not, is not competent to support the commission by proving the act of bankruptcy. Adams v. Malkin, 3 Campb. 543; Crooke v. Edwards, 2 Stark. 302 (d), 1 Deac. Dig. C. L. 124, Deac. Bankrupt L. c. 19, s. 7. The bankrupt's wife is an incompetent witness for the prosecution. Hawk. P. C. b. 1, c. 59, s. 4; 1 Deac. B. L. 726, and see ante, p. 139.
(a) Eng. Com. L. Rep. xxiii. 309. (b) Id. ii. 374. (c) Id. xxiv. 246. (d) Id. iii. 355.