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sufficient proof thereof, unless the defendant in such information or suit shall prove to the contrary.”
And by s. 118, " is 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 exbibited 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 bigh 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 deterinine all cases of offences against such act so committed upon the high seas, any charter or act of parliament to the contrary motwithstanding: provided always, that where any offence shall be comınitted in any place upon the waicr 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 indictinent 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.
If it be committed on a boy under fourteen years of age, it is felony in the agent only. 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 (6).
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' imprisonment. See ante, p. 265.
The setting of spring guns and man traps is made a misdemeanor by the stat. 7 & Geo. 4, c. 18, by the 1st section of which it is enacted
(1) Davis o. The State, 3 Har. & Johns. 154. (a) Eng. Com. L. Rep. xxxiv. 547. (6) 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 sprivg 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, Ist, 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 enacted, s. 7, “that whosoever shall with menaces or by force, demand any property (which word by s. 12, is to denote every thing included under the words “chattel, money or valuable security” in the 7 & 8 Geo. 4, c. 29,) of any person with intent to steal the same shall be guilty of felony, and being convicted thereof shall be liable to be imprisoned for any term not exceeding three years."
For the punishment of accessaries under this act, see ante, p. 207, and for the clause empowering the court to award hard labor and solitary confinement, see ante, p. 827.
Upon an indictment under this statute, the prosecutor must prove-1, the demand ; 2, the inenaces or force ; 3, the intent to steal.
Proof of the demand.] There must be evidence that the prisoner demanded some chattel, money, or valuable security; but it does not appear to be necessary that the demand should be made in words, if the conduct of the prisoner amount to a demand in fact. Where the prisoners seized the prosecutor, and one of them said, “Not a word, or I will blow your brains out,” and the other repeated the words, and appeared to be search- . ing for some offensive weapon in his pocket, when, upon the prosecutor seizing him, the other prisoner ran away without anything more being said; on an objection that this was no demand, within the repealed statute 7 Geo. 2, c. 21, which enacts, that if any person shall, by menaces or by any forcible manner, demand any money, &c. with intent, &c.) the court said, that an actual demand was not necessary, and that this was a fact for the jury, under all the circumstances of the case. The case was afterwards disposed of on the form of the indictment. Jackson's case, 1 Leach, 267; 1 East, P. C. 419; see 5 T. R. 169.
*In another case upon the same statute, but upon an indictment [ *861 ] for an assault with intent to rob, Willes, C. J., made the following observations on the subject of a demand. The circumstances were that the prisoner did not make any demand, or offer to demand the prosecutor's money ; but only held a pistol in his hand towards the prosecutor, who was a coachman, on his box; and per Willes, C. J., a man who is dumb may make a demand of money, as if he stop a person on the highway, and put his hat or hand into the carriage, or the like ; but in this case the prisoner only held a pistol to the coachman, and said to him nothingbut “stop.” That was no such demand of money as the act requires. Parfait's case, 1 East, P. C. 416. Upon this Mr. East justly remarks, that the fact of stopping another on the highway, by presenting a pistol at his breast, is, if unexplained by other circumstances, sufficient evidence of a demand to go to a jury. The unfortunate sufferer understands the language but too well; and why must courts of justice be supposed ignorant of that wbich common experience teaches to all men ? 1 East, P. C. 417; 1 Russell, 619.
Where an indictment stated that the prisoner“ feloniously, by menaces did demand the monies of the said J. K." it was held insufficient, because it did not state from whom he had demanded them. Dunkley's case, 1 Moo. C. C. 90 (a).
Proof of the threat or force. The prosecutor must show that the
(a) 2 Eng. C. C. 90.
demand was made with menaces, or by force. With regard to the menaces, they must be of the same nature, as, if the money had been delivered in consequence of them, would have constituted the offence of robbery. Vide supra. In the same manner the force used must be such as would have been sufficient to render the taking a robbery.
Proof of the intent.] The intent, as in similar cases, will be proved from the circumstances under which the demand was made. The decisions upon the animus furandi in robbery, (vide anle, p. 829) may be referred to as governing the evidence in this case also.
Proof with regard to the thing demanded.] In order to bring the offence within the statute, the thing demanded must be such as the party menaced has the power of delivering up, or is supposed by the offender to have the power of delivering up. Where several persons were indicted for demanding with menaces the money of W. Gee, with intent to steal it, and it appeared that they had by duress extorted from him a check, (which he wrote on a paper furnished by the prisoners,) upon a banker, for a large sum of money, the offence was held not to be within the statute. Edwards's case, O. B. 6 C. and P. 515 (a). The prisoners were afterwards charged with demanding by menaces a valuable security for money, but the court held this offence likewise not within the statute, on the ground that the check never was in the peaceable possession of Mr. Gee. Edwards's case, Id. 521. [ *862] *Where the prisoner in one count of the indictment was charged under the 7 Wm. 4 and 1 Vict. c. 87, s. 7, with demanding the monies of the prosecutor with intent to steal the same, and it appeared that he had actually obtained money from the prosecutor; Law, Recorder, said he should hold that if the menaces were used to obtain money, that count was sustained, although the money was actually obtained. The prisoner was found guilty upon the above count, but was subsequently sentenced upon another count in the same indictment. Norton's case, 8 C. and P. 671 (6); see ante, p. 846.
THREATENING LETTERS-DEMANDING MONEY.
Statute 7 and 8 Geo. 4, c. 29.
862 Proof of the nature of the letter or writing 864 Proof of the sending or delivering of the
• 664 letter or writing · 863 | Proof the thing demanded
Statute 7 & 8 Geo. 4, c. 29.) The offence of demanding money by a threatening letter was provided against by the statute9 Geo. 1, c. 22, s.
(a) Eng. Com. L. Rep. xxv. 518. (6) Id. xxxiv. 577.