Sivut kuvina

throat, and was then interrupted by the prosecutor, and that the ewe died two days after. The jury found that the prisoner intended to steal the carcass, and convicted him. The judges held the conviction right. Sutton's case, 8 C. and P. 291 (a).

Maiming, &c. of Cattle.] At common law, the maiming of cattle was not an indictable offence. The prisoner was charged, for that he, on, &c., with force and arms, one gelding, of the value, &c., then and there unlawfully did main, to the damage of the prosecutor; but, upon a reference to the judges after conviction, they all held that the indictment contained no indictable offence; for, if the case were not within the Black Act, the fact in itself was only a trespass; for the words vi et armis did not imply force sufficient to support the indictment. Ranger's case, 2 East, P. C. 1074.

This class of offences was provided against by the Black Act, 9 Geo. I, c. 22; but that statute was repealed, and in substance re-enacted, by the, 4 Geo. 4, c. 54; which was also repealed by the 7 and 8 Geo. 4, c. 27.

By the 7 and 8 Geo. 4, c. 30, s. 16, "if any person shall unlawfully and maliciously kill, maim, or wound any cattle, every such offender 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 life, or [ *337 ] for any term not less than seven years, or to be imprisoned for any term not exceeding four years, and if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall think fit) in addition to such imprisonment.'

By the 7 Wm. 4 and 1 Vict. c. 90, s. 2, so much of the above act as relates to the punishment of persons convicted of the offences therein specified is repealed, and it is enacted, that "every person convicted after the commencement of this act of any of such offences respectively, shall be liable to be transported beyond the seas for any term not exceeding fifteen years, and not less than ten years, or to be imprisoned for any term not exceeding three years."

For s. 3, of the above act, authorising the court in awarding imprisonment, to add hard labor and solitary confinement, see ante, p. 333.

The evidence upon a prosecution under this statute will be-1, that the animal killed or maimed comes within the description of cattle specified in the statute; and 2, the act of killing or maiming by the prisoner.

Proof of the animal being within the statute.] Upon the repealed statute of 9 Geo. 1, c. 22, which only contained the general word "cattle," it was held, that an indictment for killing a "mare" was good. Paty's case, 1 Leach, 72; 2 W. Bl. 721; 2 East, P. C. 1074. And so an indictment for wounding "a gelding." Mott's case, 1 Leach, 73, (n.) Pigs were held to be within the 9 Geo. 1, c. 22. Chapple's case, Russ. and Ry. 77. So also asses. Whitney's case, I Moody, C. C. 3 (b).

It is not sufficient in the indictment to charge the prisoner with maiming, &c. " cattle" generally, without specifying the description, and such description must be proved; and where the sex is stated, the animal must be proved to be of that sex. Chalkley's case, Russ. and Ry. 258 (c).

(a) Eng. Com. L. Rep. xxxiv. 394. (6) 2 Eng. C. C. 3. (e) 1 Id. 258.

Proof of the injury.] Upon an indictment for maliciously wounding, it need not appear either that the animal was killed, or that the wound inflicted a permanent injury. Upon an indictment for this offence, it was proved that the prisoner had maliciously driven a nail into a horse's foot. The horse was thereby rendered useless to the owner, and continued so to the time of trial; but the prosecutor stated that it was likely to be perfectly sound again in a short time. The prisoner being convicted, the judges, on a case reserved, held the conviction right, being of opinion that the word "wounding" did not imply a permanent injury. Haywood's case, Russ. and Ry. 16 (a); 2 East, P. C. 1076. But by maiming, it is to be understood a permanent injury. Id. 2 East, P. C. 1077.

[ocr errors]

Where the prisoner was indicted on the 4 Geo. 4, c. 54, for wounding a sheep, and it appeared that he had set a dog at the animal, and that the dog, by biting it, inflicted several severe wounds, Park, J., is stated to have said, This is not an offence at common law, and is only made so [*338] by a statute, and I am of opinion *that injuring a sheep, by setting a dog to worry it, is not a maiming or wounding within the meaning of that statute." Hughes's case, 2 C. and P. 420 (b). As to the construction of the word "wound" see Wood's case, 1 Moody, C. C. 278 (c); Wetton's case, Id. 294 (d). Where the prisoner poured a quantity of nitrous acid into the ear of a mare, some of which, getting into the eye, produced immediate blindness, being convicted of maliciously maiming the mare, the conviction was held by the judges to be right. Owen's case, 1 Moody, C. C. 205 (e).

The administering poison to cattle, however malicious the act may be, is not a felony within the statute, unless the animal die; but the party may be indicted as for a misdemeanor. Where a man was thus indicted, for administering sulphuric acid to eight horses, with intent feloniously to kill them, and it appeared that he had mixed sulphuric acid with the corn, and having done so gave each horse his feed; Park, J., held that this evidence supported the allegation in the indictment, of a joint administering to all the horses. Mogg's case, 4 C. and P. 364 (ƒ).

Where a prisoner set fire to a cowhouse, and a cow in it was burnt to death, Taunton, J., ruled that this was a killing of the cow within the 7 & 8 Geo. 4, c. 30, s. 16. Haughton's case, 5 C. and P. 559 (g).

Proof of malice and intent.] Under the repealed statute of 9 Geo. 1, c. 22, it was necessary to show that the act was done out of malice to the owner; but the 7 & 8 Geo. 4, c. 30, s. 25, (see post, title Malicious Injuries,) renders it an offence, whether the act be done from malice conceived against the owner or otherwise. Although it is thus rendered unnecessary to give evidence of malice against any particular person, yet an evil intent in the prisoner must appear. Thus in Mogg's case, supra, Park, J., left it to the jury to say whether the prisoner had administered the sulphuric acid (there being some evidence of a practice of that kind by grooms) with the intent imputed in the indictment, or whether he had done it under the impression that it would improve the appearance of his horses; and that in the latter case they ought to acquit him. In the same case the learned judge allowed evidence to be given of other acts of administering, to show the intent.

(a) 1 Eng. C. C. 16. (b) Eng. Com. L. Rep. xii. 200. (c) 2 Eng. C. C. 278. (d) Id. 294. (e) Id. 205. (f) Eng. Com. L. Rep. xix. 420. (g) Id. xxiv. 454.

[blocks in formation]

What amounts to.] It is a very high offence to challenge another, either by word or letter, to fight a duel, or to be the *messenger [ *339 ] of such a challenge, or even barely to provoke another to send such a challenge, or to fight, as by dispersing letters to that purpose, containing reflections, and insinuating a desire to fight. Hawk. P. C. b. 1, c. 63, s. 3. Thus, a letter containing these words, "You have behaved to me like a blackguard. I shall expect to hear from you on this subject, and will punctually attend to any appointment you may think proper to make," was held indictable (1). Phillips' case, 6 East, 464; Rice's case, 3 East, 581.

No provocation, however great, is a justification on the part of the defendant; Rice's case, 3 East, 581; although it may weigh with the court in awarding the punishment.

On an indictment for challenging, or provoking to challenge, the prosecutor must prove-1st, the letter or words conveying the challenge; and 2d, where it does not appear from the writing or words themselves, he must prove the intent of the party to challenge, or to provoke to a challenge.

Proof of the intent.] In general the intent of the party will appear from the writing or words themselves; but where that is not the case, as where the words are ambiguous, the prosecutor must show the circumstances under which they were uttered, for the purpose of proving the unlawful intent of the speaker (2). Thus, words of provocation, as "liar," or "knave," though a mediate provocation to a breach of the peace, do not tend to it immediately, like a challenge to fight, or a threatening to beat another. King's case, 4 Inst. 181. Yet these, or any other words, would be indictable if proved to have been spoken with an intent to urge the party to send a challenge. 1 Russell, 276 (3).

Venue.] Where a letter challenging to fight is put into the post-office in one county, and delivered to the party in another, the venue may be laid in the former county. If the letter is never delivered, the defendant's offence is the same. Williams's case, 2 Campb. 506.

(1) A challenge to fight a duel out of the state is indictable, for its tendency is to produce a breach of the peace. State v. Farrier, 1 Hawks, 487. State v. Taylor, 1 Const. Rep. 107. The declarations of the second are admissible against the principal. State v. Dupont, 2 M'Cord, 334.

(2) It is a question for the jury whether the party intended a challenge or not. Gibbon's case, 1 Southard, 40, Commonwealth v. Levy, 3 Wheeler's C. C. 245. Wood's case, 3 Rogers's Rec. 133. Parole testimony is admissible in explanation of the note. Comm. v. Hart, J. J. Marsh. 120. Expressing a readiness to accept a challenge does not amount to one. Comm. v. Tibbs, 1 Dana, 524.

(3) Words insinuating a desire to fight with deadly weapons, as they tend to provoke such combat, may amount to a misdemeanor at common law. Comm. v. Tibbs, 1 Dana, 524.


Proof of the nature of the cheating or fraud-affecting the public

What cheats are not indictable



Under this head, the evidence required to support an indictment for a [340] cheat or fraud at common law will be considered. The proofs *regarding prosecutions for false pretences, are treated of in a subsequent part of this work.

In order to support an indictment at common law for cheating, the prosecutor must prove-1st, that the cheat was of a public nature; 2d, the mode in which the cheating was effected; thus if it was by a false token, the nature of such false token must be stated in the indictment, and proved in evidence; 3d, that the object of the defendant in defrauding the prosecutor was successful.

The punishment of this offence is, as in cases of other misdemeanors at common law, fine and imprisonment.

Proof of the nature of the cheating or fraud-affecting the public.] Frauds affecting the crown, and the public at large, are indictable, though they may arise in the course of particular transactions with private individuals (1). 2 Russell, 285. The selling unwholesome provisions, 4 Bl. Com. 162, or the giving any person unwholesome victuals, not fit for man to eat, lucri causa, 2 East, P. C. 822, is an indictable offence. Where the defendant was indicted for deceitfully providing certain French prisoners with unwholesome bread, to the injury of their health, it was objected in arrest of judgment, that the indictment could not be sustained, for that it did not appear that what was done was in breach of any contract with th public, or of any civil or moral duty; but the judges, on a reference to them, held the conviction right. Treeve's case, 2 East, P. C. 821. The defendant was indicted for supplying the Royal Military Asylum at Chelsea, with loaves not fit for the food of man, which he well knew, &c. It appeared that many of the loaves were strongly impregnated with alum, (prohibited to be used by 37 G. 3, c. 98, s. 21,) and pieces as large as horse-beans were found; the defence was, that it was merely used to assist the operation of the yeast, and had been carefully employed. But Lord Ellenborough said, "Whoever introduces a substance into bread, which may be injurious to the health of those who consume it, is indictable, if the substance be found in the bread in that injurious form, although if equally spread over the mass, it would have done no harm." Dixon's case, 4 Campb. 12, 3 M. and S. 11.

There is also another head of public cheats indictable at common law, which are directed against the public justice of the kingdom; such as the doing judicial acts without authority, in the name of another. 2 East, P.

(1) Resp. v. Teischer, 1 Dall. 338. Comm. v. Eckert, 2 Browne, 251. Resp. v. Powell, 1

Dall. 47.

C. 821. There is the precedent of an indictment against a married woman for pretending to be a widow, and as such, executing a bail-bond to the sheriff. This probably was considered a fraud upon a public officer in the course of justice. Ibid. Trem. P. C. 101; Cr. Cir. Com. 78. So it was said by Lord Ellenborough, that he had not the least doubt that a person making use of a false imprisonment for the purpose of perverting the course of justice, was guilty of an offence punishable by indietment. Omealy v. Newell, 8 East, 364. So it was held, that a person who, being committed under an attachment for a contempt in a *civil cause, counterfeited a pretended discharge as from his [*341 ] creditor to the sheriff and gaoler, under which he obtained his discharge from gaol, was guilty of a cheat and misdemeanor at common law, although the attachment not being for non-payment of money, the discharge was a nullity. Fawcett's case, 2 East, P. C. 862. Doubts were entertained by some of the judges whether this was not a forgery at common law. Vide post, title Forgery.

Fraudulent malversations or cheats in public officers, are also the subject of an indictment at common law (1), as against overseers of the poor for refusing to account; Commings' case, 5 Mod. 179; 1 Bott, 332; 1 Russell, 288; or for rendering false accounts. Martin's case, 2 Campb. 269; 3 Chitty, C. L. 701; 2 Russell, 288. Upon an application to the Court of King's Bench, against the minister and churchwardens of a parish, for misapplying monies collected by a brief, and returning a smaller sum only as collected, the Court, refusing the information, referred the prosecutors to the ordinary remedy by indictment. R. v. Ministers, &c. of St Botolph, 1 W. Bl. 443. Vide post, title, Offices.

Again, where two persons were indicted for enabling persons to pas their accounts with the pay-office, in such a way as to defraud the government, and it was objected that it was only a private matter of account, and not indictable, the Court decided otherwise, as it related to the public revenue. Bembridge's case, cited 1 East, 136.

Another class of frauds affecting the public, is cheating by false weights and measures, which carry with them the semblance of public authenticity. Thus, the counterfeiting the general seal or mark of a trade upon cloth of a certain description and quality is indictable. Worrel's case, Trem. P. C. 106; 2 East, P. C. 820. So where the defendant has measured corn in a bushel, and put something in the bushel to fill it up, or has measured it in a bushel short of the stated measure. Per Cur. Pinkney's case, 2 East, P. C. 820.

What cheats are not indictable.] It is not, however, every species of fraud and dishonesty in transactions between individuals which is the subject matter of a criminal charge at common law; but in order to constitute it such, it must be an act affecting the public, such as is public in its nature, calculated to defraud numbers, and to deceive the people in general. 2 East, P. C. 816.

Where an imposition upon an individual is effected by a false affirmative or bare lie, in a matter not affecting the public, an indictment is not sustainable (2). Thus where an indictment charged the defendants with

(1) Resp. v. Powell, 1 Dall. 47. Commonwealth v. Wade, Whart. Dig. 166. (2) Commonwealth v. Warren, 6 Mass. 72. But when a man induces another by false representations, and false reading, to sign his name to a note for a different amount than that

« EdellinenJatka »