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destroy such a child appears to have been held to be a misdemeanor. 3 Chitt. Cr. Law, 798; 1 Russ. 553, 2d ed. The offence was provided for by the 9 Geo. 4, c. 31, s. 13, which has been repealed, and the 7 Wm. 4, and i Vict. c. 85, s. 6, substituted.
Statute law.] By the 7 Wm. 4 and 1 Vict. c. 85, s. 6, “whosoever with intent to procure the miscarriage of any woman, shall unlawfully administer to her, or cause to be taken by her, any poison, or other noxious thing, or shall unlawfully use any instrument, or other means whatsoever, with the like intent, 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 his or her natural life, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years."
By sec. 8, “where any person shall be convicted of any offence punishable under this act, for which imprisonment may be awarded, it shall be lawful for the court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labor, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment with hard labor, not exceeding one month at any one time, and not exceeding three months in any one year as to the court in its discretion shall seem meet.”
Upon an indictment under the above act, the prosecutor must prove, 1, The intent to procure miscarriage ; 2, The administering *or caus- [ 242 ] ing to be taken ; 4, Some poison or other noxious thing, or the use of some instrument, or other means, with like intent.
Proof of the intent.] The intent will probably appear from the other circumstances of the case. That the child. was likely to be born a bastard, and to be chargeable to the reputed father, the prisoner, would be evidence to that effect. Proof of the clandestine manner in which the drugs were procured or administered would tend the same way.
Proof of the administering.) The prosecutor must then prove the administering, or the causing to be taken of the poison or other noxious thing.
Where the prisoner gave the prosecutrix a cake containing poison, which she merely put into her mouth, and spit out again without swallowing any portion of it; the judges held, that a mere delivery did not constitute an administering within the 43 Geo. 3, c. 58, and that there was no administering unless the poison was taken into the stomach. Cadman's case, Carr. Sup. 237. And see Harley's case, 4 C. and P. 370 (a), where the report of this case in 1 Moo. C..C. 114 is stated to be inaccurate. But to constitute an administering, there need not be an actual delivery by the hand of the prisoner. Harley's case, supra.
Proof of the nature of the thing administered.] The nature of the poison or other noxious thing must be proved. Upon an indictment on the 43 Geo. 3, c. 58, s. 5, for administering savin to a woman not quick with child, with intent, &c., the charge was that the prisoner administered “ six ounces of the decoction of a certain shrub called savin, then and there,
(a) Eng. Com. L. Rep. xix. 423.
being a noxious and destructive thing." It appeared that the prisoner had prepared the medicine by pouring boiling water on the leaves of the shrub, and the medical men examined stated that such preparation is called an infusion and not a decoction. It was objected that the inedicine was misdescribed, but Lawrence, J., overruled the objection. He said infusion and decoction are ejusdem generis, and the variance is immaterial. The question is, whether the prisoner administered any matter or thing to the woman with intent to procure abortion. Phillips's case, 3 Campb. 78. The authority of this decision appears to have been followed by Vaughan, B., in a recent case. The prisoner was indicted under the 9 Geo. 4, c. 31, s. 13, for administering saffron to the prosecutrix, with intent to procure abortion. The counsel for the prisoner cross-examining as to the innocuous nature of the article administered, Vaughan, B., said, “ does that signify? It is with the intention that the jury have to do; and if the prisoner administered a bit of bread merely with the intent to procure abortion, it is sufficient to constitute the offence contemplated by the act of parliament.” Coe's cake, 6 C. and P. 403 (a). It should be observed, that the words of the statute were the same as are used in the 7 Wm. 4 and 1 Vict. c. 85, s. 6, “any poison or other noxious thing,” [ *243 ) or any instrument or other means whatsoever.” The above case does not appear to be included within the former words of the statute, and it is very questionable whether the words “other means whatsoever,” from the situation in which they are found in the statute, are not to be confined to means ejusdem generis with instruments, and not with drugs.
If the attempt to procure abortion has been by means of instruments, the fact must be laid and proved accordingly.
The former statutes on this subject, the 43 Geo. 3, c. 58, and 9. Geo. 4, c. 31, s. 14, distinguished between the case where the woman was quick and was not quick with child, and under both acts the woman must have been pregnant at the time. See Scudder's case, 3 C. and P. 605 (6); 1 Mgo. C. C. 216 (c). The terms of the recent act are
" with intent to procure the miscarriage of any woman," omitting the words “ being then quick with child,” &c.; and it should therefore seem to be now immaterial whether the woman is or is not pregnant, if the prisoner, believing her to be so, adıninisters the drug with the intent of producing abortion.
If the prosecutor fail in proving the intent, the prisoner may be convicted of an assault under the 11th sec. of the 7 Wm. 4 and 1 Vict. c. 85, see post, 264, whether the act done be the administering of some deleterious drug, (see Button's case, 8 C. and P. 660) (d), or the using of * some instrument, provided the woman was not a consenting party, or some fraud was practised upon her to induce her to give her consent.
An affray is the fighting of two or more persons in some public place,
(a) Eng. Com. L. Rep. xxv. 453. (1) Id. xiv. 478. (c) 2 Eng. C.C. 216. (d) Eng. Com. L.
Rep. xxxiv. 573.
to the terror of the king's subjects ; for if the fighting be in private, it is not an affray, but an assault. 4 Bl. Com. 145. See Timothy v. Simpson, 1 C. M. and R. 757. It differs from a riot, in not being premeditated. Thus if a number of persons meet together at a fair, or market, or upon any other lawful or innocent occasion, and happen on a sudden quarrel to engage in fighting, they are not guilty of a riot, but of an affray only (of which none are guilty but those who actually engage in it); because the design of their meeting was innocent and lawful, and the breach of the peace happened without any previous intention. Hawk. P. C. b. 1, c. 65, s. 3. Two persons may be guilty of an affray, but it requires three or more to constitute a riot. Vide post. Mere quarrelsome words will not make an affray. 4 Bl. Com. 146. 1 Russell, 271.
To support a prosecution for an affray, the prosecutor must prove-1, the affray, or fighting, &c.; 2, that it was in a public place ; 3, that it was to the terror of the king's, subjects; 4, that two or more persons were engaged in it(1).
[ *244 )
Offence at common law
244 Proof of the burning
244 Proof that the house burnt is the house of another
244 Proof of malice and wilfulness
246 Offence by statute
247 Setting fire to a dwelling-house, some person being therein
247 Setting fire to houses, &c.
247 Proof of the setting fire, &c. . 248
Proof of the property set fire to 249
254 Setting fire to stacks, &c.
254 Setting fire to ships with intent to murder
235 to ships with intent to destroy the same
256 to ships of war, &c. . 256 Negligent burning
At common law.] The offence of arson, which is a felony at common law, is defined by Lord Coke to be the malicious and voluntary burning the house of another, by night or by day. 3 Inst. 66. 1 Hale, P. C. 566.
Upon an indictment for this offence, the prosecutor must prove-1, the burning ; 2, of the house of another; 3, that the offence was committed voluntarily and maliciously.
Proof of the burning.) To constitute arson at common law, it must be proved that there was an actual burning of the house, or of some part of it, though it is not necessary that any part should be wholly consumed, or that the fire should have any continuance, but be put out, or go out of itself. 2 East, P. C. 1020. i Hale, P. C. 569 (2).
(1) One may be acquitted and the other convicted. It may be an affray though the parties fight without consent being proved. Cash v. State; 2 Tenn. 198. Duncan o. Comm. 6 Dana, 2005. Simpson o. State, 5 Yerger, 356.
One who aids, assists and abets an affray, is guilty as principal. Carlin o. State, 4 Ibid. 143. (2) Comm. o. Van Schaack, 16 Mass. 105. People 0. Butler, 16 Johns. 203. See Ball's
The setting fire to the house of another, maliciously to burn it, is not a felony, if either by accident or timely prevention, the fire does not take place. i Hale, P. C. 568.
Where a house has been robbed and burnt, proof that part of the stolen property was found in the possession of the prisoner is evidence to show that he committed the arson. Rickman's case, 2 East, P. C. 1035, ante, p. 74.
Proof that the house, &c. burnt, is the house of another.] It must be the house of another. The burning of a man's own house is no felony [ 245) at common law. i Hale, P. C. 568. 2 East, P. C. 1027. *But if a man set fire to his own house, maliciously intending thereby to burn the adjoining house, belonging to another, if the latter house is burned, it is felony; if not, it is a great misdemeanor. 1 Hale, P. C. 568. 2 East, P. C. 1027.
The offence may be committed, not only with regard to a dwellinghouse, but also with regard to all outhouses which are parcel of it, though not contiguous, or under the same roof, as in the case of burglary at common law.
1 Hale, P. C. 567. And at common law, to burn a barn or outhouse, though not parcel of a dwelling-house, was felony, if it had hay or corn in it. Id. The various descriptions of buildings and farming stock are, however, now expressly protected by statute, vide infra ; and it will not therefore be necessary to examine how far they come within the protection of the common law.
With regard to what constitutes a man's own house, it has been held that a tenant for years of a house cannot at common law be guilty of a felony by burning it. Holmes's case, Cro. Car. 376; 1 Hale, P. C. 568 ; 2 East, P. C. 1023. So a copyholder, although he has surrendered the house by way of mortgage. Spalding's case, i East, P. C. 1025; 1 Leach, 218. So a person who is in possession, under an agreement for a lease for three years. The Judges in this case said, that the principle upon which Holmes's case (supra) was decided was right, and it was the protection of the person in the actual and immediate possession of the house. Breeme's case, 1 Leach, 220; 2 East, P. C. 1026. See also Pedley's case, 1 Leach, 242.
Upon the same principle, a landlord may be guilty of felony at common law, by burning the house of his tenant. Foster, 215 ; 4 B1. Com. 221. So a woman entitled to dower out of a house in mortgage, the house having been let by her, and the tenant in possession, no dower having been assigned, was held to be guilty of felony in burning the house. Harris's case, Foster, 113; 2 East, P. C. 1023. So a pauper put into a house rented from year to year by the overseers, and suffered to live there without paying rent, has no interest, but is merely a servant, and is guilty of felony if he sets fire to the house. The overseers have possession of the house by means of his occupation. Gowan's case, 1 Leach, 246, (n.) 2 East, P. C. 1027; Rickman's case, 2 East, P. C. 1034.
It requires great nicety, observes Mr. East, (P. C. 1034,) to distinguish the person who may be said to occupy suo jure, and against whom the offence must be laid to have been committed. In Glandfield's case, 2
case, 2 Rogers' Rec. 85. To attempt to fire a house is a misdemeanor at common law. Orr's case, 5 Id. 181.
East, P. C. 1034, it appeared that the outhouses burned were the property of Blanch Silk, widow, but were only made use of by John Silk, her son, who lived with her after his father's death in the dwelling-house adjoining the outhouses, and took upon him the sole management of the farm with which these outhouses were used, to the loss and profit of which he stood alone, though without any particular agreement between him and his mother. He paid all the servants and purchased all the stock, but the legal property, both in the dwelling-house and in the farm, was in *the [*246 ] mother, and she alone repaired the dwelling-house and the out-houses. Heath, J., held, that as to the stable, pound, and hog-sties, which the son alone used, the indictment must lay them in his occupation; that with regard to the brewhouse, (the mother and son both occasionally paying for ingredients, and the beer being used in the family, the mother contributing to the expense,) the same should be laid to be in their joint occupation. The prisoner was indicted accordingly, convicted, and executed.
The house was described in the indictment, 1, as that of Fearne; 2, as that of Davies ; 3, as that of the prisoner. It appeared that Fearne occupied part of the house, and let out the rest in lodgings. The room set fire to was let to the prisoner. Two months after the fire he was discharged as an insolvent debtor, and had before executed an assignment, including the house, to Davies. Davies never took possession. Upon a case reserved on the point, whether the possession of the house was rightly described, the Judges held it was so, for the whole house was properly in the possession of Fearne, the possession by his tenants being his possession, and if not, the prisoner's own room might be described as his house. Bull's case, M. 1824; Bayley's MSS. 1 Moo. C. C. 30 (a).
Proof of malice and wilfulness.] It must be proved that the act of burning was both wilful and malicious, otherwise it is only a trespass and not felony. i Hale, P. C. 569. Therefore if A. shoot unlawfully at the poultry or cattle of B., whereby he sets the house of another on fire, it is not felony; for though the act he was doing was unlawful, he had no intention to burn the house. Id. In this case, observes Mr. East, it should seem to be understood, that he did not intend to steal the poultry, but merely to commit a trespass; for otherwise, the first attempt being felonious, the party must abide all the consequences. 2 East, P. C. 1019. If A. has a malicious intent to burn the house of B., and in setting fire to it, burns the house of B. and C., or the house of B. escapes by accident, and that of C. Only is burnt, though A. did not intend to burn the house of C., yet in law this is a malicious and wilful burning of the house of C., and A. may be indicted accordingly. i Hale, P. C. 569; 2 East, P. C. 1019. So if A. command B. to burn the house of J. S., and he do so, and the fire burns also another house, the person so commanding is accessary to the burning of the latter house. Plowd. 475; 2 East, P. C. 1019. So where the primary intention of the offender is only to burn his own house (which is no felony), yet if in fact other houses are thereby burned, being adjoining, and in such a situation as that the fire must in all probability reach them, the intent being unlawful, and the consequence immediately and necessarily flowing from the original act done, it is felony. 2 East, P. C. 1031. In a case of this kind, where the prisoner was in
fa) 2 Eng. C. C. 30.