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Geo. 2, c. 35, Fletcher's case, 1 Leach, 23; and, under the 6 Geo. 4, c. 138, bats, which are poles used by smugglers to carry tubs, were held not to be offensive weapons. Noake's case, 5 C. and P. 326 (a). If in a sudden affray, a man snatch up a hatchet, this does not come within the statute. Rose's case, 1 Leach, 342, (n.)
Proof of shooting at a boat belonging to the navy, &c.] By s. 59, of the 3 and 4 Wm. 4, "if any person shall maliciously shoot at any [ *855 ] *vessel or boat belonging to his Majesty's navy, or in the service of the revenue, within one hundred leagues of any part of the coast of the United Kingdom, or shall maliciously shoot at, maim, or dangerously wound 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 any person acting in his aid or assistance, or duly employed for the prevention of smuggling, in the due execution of his office or duty, (see s. 117 and 118, post, p. 856,) every person so offending, and every person aiding, abetting, or assisting therein, shall, being lawfully convicted, be adjudged guilty of felony, [and suffer death as a felon."] See now as to the punishment, ante, p. 854. ·
Upon an indictment under the first part of this section, the prosecutor must prove-1, the shooting; 2, the malice; 3, that the vessel shot at was belonging to the navy, or in the service of the revenue; 4, that the vessel was within 100 leagues of the coast.
Upon the statute 52 Geo. 3, c. 143, it was held that if a custom-house vessel chased a smuggler, and fired into her without hoisting such a pendant and ensign, as the statute 56 Geo. 3, st. 2, c. 104, s. 8, required, the returning the fire by the smuggler was not malicious within the act. Reynold's case, Russ. and Ry. 465 (b).
Proof of being in company with others having prohibited goods.] By the 3 and 4 Wm. 4, c. 53, s. 60, "if any person being in company with more than four other persons be found with any goods liable to forfeiture, under this or any other act relating to the revenue of customs or excise, or in company with one other person, within five miles of the sea coast, or of any navigable river leading therefrom, with such goods, and carrying offensive arms or weapons, or disguised in any way, every such person shall be judged guilty of felony, and shall, on conviction of such offence, be transported as a felon for the space of seven years."
For s. 61, relative to assaults on officers employed to prevent smuggling, see ante, p. 266.
Service of indictment in certain cases, and entering plea for prisoner.] By the 3 and 4 Wm. 4, c. 53, s. 108, "the judges of the King's Bench are empowered to issue warrants for apprehending offenders prosecuted by indictment or information, and such offenders neglecting to give bail, may be committed to gaol, and where any person, either by virtue of such warrant of commitment, or by virtue of any writ of capias ad respondendum issued out of the said court, is now detained or shall hereafter be committed to and detained in any gaol for want of bail, it shall be lawful for the prosecutor of such indictment or information to cause a
(a) Eng. Com. L. Rep. xxiv. 342. (b) 1 Eng. C. C. 465.
copy thereof to be delivered to such person, or to the gaoler, keeper, or turnkey of the gaol wherein such person is or shall be so detained, with a notice thereon indorsed that unless such person shall, within eight days from the time of such delivery of a copy of the indictment or information as aforesaid, cause an appearance and also a plea or demurrer to be entered in the said court to such indictment or information, an appearance and *the plea of not guilty will be entered thereto in the name of [ *856 ] such person; and in case he or she shall thereupon, for the space of eight days after the delivery of a copy of such indictment or information as aforesaid, neglect to cause an appearance and also a plea or demurrer to be entered in the said court to such indictment or information, it shall be lawful for the prosecutor of such indictment or information, upon affidavit being made and filed in the court of the delivery of a copy of such indictment or information, with such notice indorsed thereon as aforesaid, to such person, or to such gaoler, keeper, turnkey, as the case may be, which affidavit may be made before any judge or commissioner of the said court authorized to take affidavits in the said court, to cause an appearance and the plea of not guilty to be entered in the said court to such indictment or information, for such person; and such proceedings shall be had thereupon as if the defendant in such indictment or information appeared and pleaded not guilty, according to the usual course of the said court; and that if upon trial of such indictment or information any defendant so committed and detained as aforesaid shall be acquitted of all the offences therein charged upon him or her, it shall be lawful for the judge before whom such trial shall be had, although he may not be one of the judges of the said court of King's Bench, to order that such defendant shall be forthwith discharged out of custody as to his or her commitment as aforesaid, and such defendant shall be thereupon discharged accordingly."
Certain rules of evidence.] The 3 and 4 Wm. 4, c. 53, creates various presumptions for the purpose of facilitating the evidence in proceedings instituted under it.
By s. 116, "in case of any information or proceedings had under this or any other act relating to the customs, the averment that the commissioners of his Majesty's customs or excise have directed or elected such information or proceedings to be instituted, or that any vessel is foreign, or belonging wholly or in part to his Majesty's subjects, or that any person detained or found on board any vessel or boat liable to seizure is or is not a subject of his Majesty, or that any person detained is or is not a seafaring man, or fit and able to serve his Majesty in his naval service, or that any person is an officer of the customs, and where the offence is committed in any port in the United Kingdom, the naming of such port in any information or proceedings, shall be sufficient, without proof as to such fact or facts, unless the defendant in such case shall prove to the contrary."
By s. 117, "all persons employed for the prevention of smuggling under the direction of the commissioners of his Majesty's customs, or of any officer or officers in the service of the customs, shall be deemed and taken to be duly employed for the prevention of smuggling; and the averment, in any information or suit, that such party was so duly employed, shall be
sufficient proof thereof, unless the defendant in such information or suit shall prove to the contrary."
And by s. 118, "if upon any trial a question shall arise whether any [*857] *person is an officer of the army, navy, or marines, being duly employed for the prevention of smuggling, and on full pay, or an officer of customs or excise, evidence of his having acted as such shall be deemed sufficient, and such person shall not be required to produce his commission or deputation, unless sufficient proof shall be given to the contrary; and every such officer, and any person acting in his aid or assistance, shall be deemed a competent witness upon the trial of any suit or information on account of any seizure or penalty as aforesaid, notwithstanding such officer or other person may be entitled to the whole or any part of such seizure or penalty, or to any reward upon the conviction of the party charged in such suit or information."
Limitation of prosecutions.] By the 3 & 4 Wm. 4, c. 53, s. 120, "all suits, indictments, or informations exhibited for any offence against this or any other act relating to the customs in any of his majesty's courts of record at Westminster, or in Dublin, or in Edinburgh, or in the royal courts of Guernsey, Jersey, Alderney, Sark, or Man, shall and may be had, brought, sued, or exhibited within three years next after the date of the offence committed, and shall and may be exhibited before any one or more justices of the peace within six months next after the date of the offence committed."
All indictments under this act (except cases before justices,) are to be preferred by order of the commissioners.
Venue.] By the 3 and 4 Wm. 4, c. 53, s. 77, "in case any offence shall be committed upon the high seas against this or any other act relating to the customs, or any penalty or forfeiture shall be incurred upon the high seas for any breach of such act, such offence shall for the purpose of prosecution, be deemed and taken to have been committed, and such penalties and forfeitures to have been incurred, at the place on land in the United Kingdom or the Isle of Man into which the person committing such offence or incurring such penalty or forfeiture, shall be taken, brought, or carried, or in which such person shall be found; and in case such place on land is situated within any city, borough, liberty, division, franchise, or town corporate, as well any justice of the peace for such city, borough, liberty, division, franchise, or town corporate as any justice of the peace of the county within such city, borough, liberty, division, franchise, or town corporate, is situated, shall have jurisdiction to hear and determine all cases of offences against such act so committed upon the high seas, any charter or act of parliament to the contrary notwithstanding: provided always, that where any offence shall be committed in any place upon the water not being within any county of the United Kingdom, or where any doubt exists as to the same being within any county, such offence shall, for the purposes of this act, be deemed and taken to be an offence committed upon the high seas."
By s. 122, "any indictment or information for any offence against this [*858] *act, or any act relating to the customs, shall be inquired of, examined, tried and determined in any county of England, where the of
fence is committed in England, and in any county in Scotland, where the offence is committed in Scotland, and in any county in Ireland, where the offence is committed in Ireland, in such manner and form as if the offence had been committed in the said county where the said indictment or information shall be tried."
By the s. 9 Geo. 4, c. 30, s. 15, "every person convicted of the abominable crime of buggery, committed either with mankind, or with any animal, shall suffer death as a felon (1)."
This sentence may be recorded, ante, p. 224.
The clause (sec. 18,) respecting the difficulty of proof with regard to the completion of the offence of rape, already stated, ante, p. 799, is applicable also to this crime, and the cases there cited, on the interpretation of that clause, are authorities here.
It is not necessary to prove that the offence was committed against the will of the party upon whom the assault is made, and if that party be consenting, both are guilty of the offence.
years of age, it is felony
If it be committed on a boy under fourteen in the agent only. 1 Hale, 670; 3 Inst. 59. In one case a majority of the judges were of opinion, that the commission of the crime with a woman was indictable. Wiseman's case, Fortescue, 91. And see Jellyman's case, 8 C. and P. 604 (a), where Patteson, J., held, that a married woman who consents to her husband committing an unnatural offence with her, is an accomplice in the felony, and, as such that her evidence requires confirmation, though consent or nonconsent is not material to the offence.
The act in a child's mouth does not constitute the offence. Jacob's case, Russ. and Ry. 331 (b).
Proof that the prisoner was addicted to such practices is not admissible, ante, p. 73.
If the proof be insufficient to make out the offence of sodomy, the party may be indicted for an assault with intent to commit that crime, and may be sentenced under the 9 Geo. 4, c. 31, s. 25, to two years' imprisSee ante, p. 265.
The setting of spring guns and man traps is made a misdemeanor by the stat. 7 & 8 Geo. 4, c. 18, by the 1st section of which it is enacted
(1) Davis v. The State, 3 Har. & Johns. 154.
(a) Eng. Com. L. Rep. xxxiv. 547. (b) 1 Eng. C. C. 331.
and declared, "that if any person shall set or place, or cause to be set or placed, any spring gun, man trap, or other engine calculated to destroy human life, or inflict grievous bodily harm, with the intent that the same, or whereby the same may destroy or inflict grievous bodily harm upon a trespasser, or other person coming in contact therewith, the person so setting or placing, or causing to be so set or placed, such gun, trap, or engine as aforesaid, shall be guilty of a misdemeanor."
By s. 3, it is enacted and declared, "that if any person shall knowingly and wilfully permit any such spring gun, man trap, or other engine as aforesaid, which may have been set, fixed, or left in any place then being in or afterwards coming into his or her possession or occupation, by some other person or persons, to continue so set or fixed, the person so permitting the same to continue shall be deemed to have set and fixed such gun, trap, or engine, with such intent as aforesaid."
But by s. 4, it is provided and enacted, "that nothing in this act shall be deemed or construed to make it a misdemeanor within the meaning of this act, to set or cause to be set, or to be continued set, from sunset to sunrise, any spring gun, man trap, or other engine which shall be set, or caused or continued to be set in a dwelling-house for the protection thereof."
And by s. 2, it also provided and enacted, "that nothing herein contained shall extend to make it illegal to set any gin or trap, such as may have been or may be usually set with the intent of destroying vermin.”
Upon a prosecution in this statute, the prosecutor must prove, 1st, the setting or causing to be set the engine in question; and 2, the intent to destroy or inflict grievous bodily harm. It is not, however, necessary to show an actual intent, the words of the statute being, "or whereby the same may destroy or inflict," &c., therefore if the party set the engine in such a place as that in reasonable probability it may inflict the injury, the offence seems complete.
If the indictment is for continuing the engine, evidence must be given that the defendant knew of its being set, and knowingly continued in it.
Statute 7 Wm. 4 and 1 Vict. c. 87, s. 7.] By the 7 Wm. 4 and 1 Vict. c. 87, (by which the 7 & 8 Geo. 4, c. 29, s. 6, is repealed,) it is en