Evidence of two distinct acts of mali admitted as c. [BOOK III. be, so as to prove this count; and upon consideration the judges held the conviction right upon this count. (f) In a case where a point was made, whether the shooting with which the prisoner was charged was by accident or design, it was held, that proof might be given that the prisoner at another time cious shooting shot intentionally at the same person. Pearce, the prosecutor, who was a gamekeeper, proved that he met the prisoner sporting upon his manor, and remonstrated with him for so doing; and proposed that the prisoner should go with him to the steward, saying, that if the steward would pardon him he should have no objection. The prisoner assented to go with him, and they walked together until they came near to the gamekeeper's horse, which was about sixty yards off, when Pearce went on before him towards the horse; and when he was at a short distance from the prisoner, the prisoner fired at his back, but said nothing. Pearce attempted to turn round, and saw the prisoner running, and attempted to run after him; but his back seemed to be broken, and he could not follow. He then turned back to the horse; and, after getting upon it, was making his way home to a place about two miles off, and had got about half a mile on the road, at a place where there was a hedge on each side, when he saw the prisoner again in the lowest part of one of the hedges; and the moment he looked round at him the prisoner again fired his gun, the discharge from which beat out one of Pearce's eyes and several of his teeth, but did not cause him to fall from his horse. Between the first and second firing was about a quarter of an hour. In the course of the trial it was suggested, that the prosecutor ought not to give evidence of two distinct felonies; but the learned judge thought it unavoidable in this case, as it seemed to him to be one continued transaction, in the prosecution of the general malicious intent of the prisoner. Upon another ground also the learned judge thought such evidence proper. The counsel for the prisoner, by his cross-examination of Pearce, had endeavoured to shew, that the gun might have gone off the first time by accident; and, although the learned judge was satisfied that this was not the case, he thought that the second firing was evidence to shew, that the first, which had preceded it only a quarter of an hour, was wilful; and to remove the doubt, if any existed, in the minds of the jury. The prisoner having been convicted, the matter was submitted to the consideration of the judges, who were of opinion, that the evidence was properly received, and the prisoner rightly convicted. (g) Dyson's case. In a case of an attempt to poison evidence of former and also of subsequent attempts of a similar nature are admissible. (h) It was also necessary, in proceeding upon the same clause of the 43 Police Act, but upon that no opinion was given. C. S. G. (f) Rex v. Fraser, R. & M. C. C. R. 419. It should be observed, that the count was framed on the 7 & 8 Geo. 4, c. 30, s. 21, for maliciously committing damage upon the plants, but the jury found that the prisoner cut the flowers with intent to steal them, which is an offence within the 7 & 8 Geo. 4, c. 29, s. 42. It may be doubted, therefore, whether the evidence supported the count. Another question arose on another count as to the construction of the 10 Geo. 4, c. 44, s. 7, the Metropolitan (g) Rex v. Voke, Mich. T. 1823, Russ. & Ry. 531. (h) 2 Stark. Ev. 692. No authority is cited for this position, but see Rex v Mogg, 4 C. & P. 364, where on an indictment for administering_poison to horses with intent to kill them, Park, J. A. J., held other acts of administering admissible to prove the intent. C. S. G. done with the charged to be intent to obstruct, &c., a lawful apprehension, it is necessary to Geo. 3, c. 58, to shew that the person apprehending acted under proper Where the authority. For, in a case where it appeared that the prisoner having wounding is previously cut a person on the cheek, several others, who were not present when the transaction took place, went to his house to apprehend him, without any warrant, and that upon their attempting to take him into custody, he inflicted the wound upon which the indictment was founded; Le Blanc, J., was of opinion, that the prosecution could not be sustained. He said, that to constitute an offence shew that the within this branch of the statute, there must be a resistance to a per- hending acted son having a lawful authority to apprehend the prisoner, in order to under proper which the party must either be present when the offence is committed, authority. or he must be armed with a warrant; and that this branch of the statute was intended to protect officers, and others armed with authority, in the apprehension of persons guilty of robberies or other felonies. (i) person appre Where the intent is to do grievous bodily immaterial whether griev harm be done. harm, it is ous bodily General malice is sufficient. night in an at tained without before a ma In a case, where the intent charged in three of the counts was, an intent to prevent a lawful apprehension: and, in the fourth, an intent to do the prosecutor some grievous bodily harm; and, from the nature of the facts, the case turned upon the last count only, a point was made on behalf of the prisoner, that no grievous bodily harm was done, as the cut was upon the wrist, and did not appear to have been dangerous, as it got well in about a week; and the prisoner's counsel relied upon a doubt expressed by Bayley, J., (j) whether the injury done was a grievous bodily harm contemplated by the act, the wound not being in a vital part. Another objec- A person detion was also taken upon the facts; from which it appeared, that tected in the the prisoner having been apprehended by one Headley, in an tempt to comattempt to break into his stable in the night, and taken into mit a felony. Headley's house, threatened Headley with vengeance, and endea- may voured to carry his threats into effect with a knife which had been a warrant laid before him, in order that he might take some refreshment: until he can and, in so doing, cut the prosecutor Cambridge, one of Headley's be carried servants, who, with Headley, was trying to take away the knife; gistrate. the act happening in that struggle, and perhaps not designedly, as against Cambridge. Upon these facts, it was objected that there was no evidence of malice against the prosecutor Cambridge, but against Headley only; and that upon the 43 Geo. 3, c. 58, general malice was not sufficient, as in the case of murder, and that malice against the particular individual was necessary. (k) A further objection was made, that the prisoner was not lawfully in custody, there being no warrant; and an attempt to commit felony being only a misdemeanor. The jury, who found the prisoner guilty, stated that the thrust was made with intent to do grievous bodily harm to any body upon whom it might alight, though the particular cut was not calculated to do so. Upon the case being submitted to the consideration of the judges, they were of opinion that, if there was an intent to do grievous bodily harm, it was immaterial whether grievous bodily harm was done; that general malice was sufficient under the 43 Geo. 3, c. 58, without any particular ma (i) Rex v. Dyson, cor. Le Blanc, J. York Spr. Ass. 1816, 1 Starkie N. P. R. 246. See the cases as to the authority to apprehend, collected in the chapter on Resisting Officers and others, ante, p. 592, et seq. (j) Rex v. Akenhead, Holt, N. P. C., 470. Post, p. 740. (k) Curtis v. The Hundred of Godley, 3 B. & C. 248, was cited, a case upon the Black Act. Akenhead's case. As to the words grievous bodily harm," and the sort of injury contemplated by the 43 Geo. 3, c. 58. If an indict with intent to lice against the person cut; and that, as the prisoner was detected in the night attempting to commit a felony, he might be lawfully detained without a warrant, until he could be carried before a magistrate. (1) A reported case upon the 43 Geo. 3, c. 58, states the following circumstances. The prosecutor and some other men had got hold of a woman, who, as they conceived, had been using another person ill, and said, that she deserved to be ducked in a trough which was near: but it did not appear that they intended to duck her. The prisoner who was at some distance at the time, on being informed that they were using the woman ill, exclaimed, "I have got a good knife," rushed immediately to the place where she was, entered among the crowd, and instantly struck the prosecutor on the shoulder with a knife. The prosecutor turned round upon him; a struggle ensued between them; and in that struggle the prosecutor received other wounds. After they had fought for some time, the prisoner dropped the knife and ran away. The wound upon the prosecutor's shoulder was about seven inches long, and two deep; and the lap of one of his ears was cut. There was likewise a slight wound on the gland of his neck, and a cut on his left arm. Upon this evidence the counsel for the prisoner objected, that the first count of the indictment, which stated an attempt to murder, &c., and the second count, which stated an attempt to maim, disfigure, and disable, could not be supported; and that the only question was upon the third count, which stated an intent to do some grievous bodily harm. And upon this question, he submitted, that the wounds were not of that kind from which grievous bodily harm could ensue; that the transaction was a scuffle, in which a knife was used accidentally, without any settled design to "maim, disfigure, or disable," or to do "other grievous bodily harm" to the prosecutor: and also that the wounds were not inflicted in a part of the body which could produce such a consequence. Bayley, J., entertained some doubts on the case which appear to have proceeded principally, on the grounds, that the wounds were not in a vital part; that it was questionable whether the injury done was a grievous bodily harm contemplated by the act and whether, if death had ensued, the crime would have been more than manslaughter. And taking all the circumstances of the case into consideration, he directed the jury to acquit the prisoner. (m) Where an indictment under the 9 Geo. 4, c. 31, charged the prisoner ment charge a with shooting at A. with intent to murder A., the prisoner could not shooting at A., be convicted if the jury found that he shot at A. intending to shoot murder A., and at B., and that he did not intend to do A. any harm. An indictthe jury find ment charged the prisoner, in one set of counts, with shooting at that he shot at Hill, with intent to murder Hill; and in another set with shooting at Lee, with intent to murder Lee; and it appeared that the prisoner having ill will against Lee, went to his house, and called to him to come out and be killed; and Hill, who was in the parlour with Lee, went into the hall, and the prisoner instantly fired a pistol at him, but without doing him any injury; it was objected that the prisoner must have shot at a person with intent to kill that person, and that here there was no intent to injure Hill. On the part A., intending to shoot at B., the prisoner must be acquitted. (1) Rex v. Hunt, East. T. 1825. Ry. & Mood. C. C. 93. Rex v. Griffith, 1 C. & P. 298. S. P. as to bodily harm. Park, J. A. J. See Rex v. Howarth, ante, p. 608. (m) Rex v. Akenhead, Northumberland, 1816, 1 Holt's N. P. R. 469. of the crown, Rex v. Hunt (m) was cited. Littledale, J., "If it had not been for the case of Rex v. Hunt, I should have felt little difficulty. The question I shall leave to the jury is, whether the prisoner intended to injure Mr. Hill. But I shall tell them, that a man must be taken to intend the consequences of his acts." His lordship said, in summing up, "If this had been a case of murder, and the prisoner intending to murder one person, had, by mistake, murdered another, he would be equally liable to be found guilty. The question, however, may be different on the construction of this act of Parliament. There is no doubt that the prisoner shot at Mr. Hill, and that, if death had ensued, the offence would have amounted to murder; and then it will be for you to say, whether the prisoner intended to do Mr. Hill some grievous bodily harm. It certainly appears that he did not so intend in point of fact. However the law infers that a party intends to do that which is the immediate and necessary effect of the act which he commits." The foreman of the Jury: "We find him guilty of shooting at Mr. Hill, with intent to do Lee some grievous bodily harm." Littledale, J., "There is no count for that. Do you find him guilty of shooting at Lee?" The foreman: "No: he fired at Hill intending to fire at Lee." Littledale, J., "Do you find that he intended to do harm to Hill?" The foreman; "We find that he did not intend to do any harm to Hill." Littledale, J., " A verdict of not guilty must be recorded." (n) and But in the following case a different opinion was given. Upon Shooting at oue an indictment on the same statute, in the first count for shooting at person Lockyer, and in the second for shooting at Hole, it appeared that hitting another. Hole, who was a gamekeeper, and Lockyer came up to some poachers, when the prisoner levelled his gun at Hole, who was in advance, but missed him and hit Lockyer. The counsel for the prosecution had elected to proceed on the count charging the shooting at Lockyer. The counsel for the prisoner contended, that the prisoner could not be convicted in point of law of shooting at Lockyer with intent to injure him, inasmuch as the person aimed at, according to the evidence, was another, and Lockyer was only struck accidentally. Gurney, B., in summing up, told the jury it was perfectly immaterial for whom the shot was intended. If a man laid poison for one person, and another took it and died, it would be murder; so a blow aimed at one person and killing another, would make the party equally answerable. (0) Under the 9 Geo. 4, c. 31, s. 11, it was held, that if a party sent poison with intent to kill one person, and another person took that poison, it was just the same as if the poison had been intended for the person who took it. Upon an indictment on the 9 Geo. 4, c. 31, s. 11, for administering poison to E. Davis, it appeared that a parcel of sugar and tea, with poison in it, directed "to be left at Mrs. Daws, Fownhope," was left on a shop counter, and afterwards delivered to a Mrs. Davis, who used some of the sugar, and was made very ill by it. Gurney, B. "The question is, whether the (m) Supra, note (1). (n) Rex v. Holt, 7 C. & P. 518. Littledale. J., considered the second set of counts quite out of the question. His Lordship said, in the course of the case, "Suppose this had been laid at common law as an assault, with intent to murder A., would (0) Rex v. Jarvis, 2 M. & Rob. 40. is Where poison sent to one person and other. taken by an prisoner laid this poison on the shop counter, intending to kill some one. If it was intended for Mrs. Daws, and finds its way to Mrs. Davis, and she takes it, the crime is as much within this act of Parliament as if it had been intended for Mrs. Davis. If a person sends poison with intent to kill one person, and another person takes that poison, it is just the same as if it had been intended for such other person." (p) But the correctness of this ruling has been doubted, and it has been considered, that where an indictment under the 1 Vict. c. 85, states an administering of poison to a person, with intent to murder such person, it must be proved that the prisoner did intend to murder such person; but that it is sufficient, under that act, to state that the prisoner administered poison" with intent to commit murder" generally. An indictment on the 1 Vict. c. 85, charged the prisoner with causing poison to be taken by G. Power, with intent to murder the said G. Power; but it appeared that the prisoner's intention was to murder Catherine Power, and that G. Power had accidentally swallowed the poison, and the prisoner was found guilty. Parke, B., afterwards said he had spoken to Alderson, B., on the subject, and that they both much doubted whether the verdict could be supported, the averment of the intention not being proved as laid. He was aware that there was a case (q) where, under the old law, (9 Geo. 4, c. 31, s. 11,) a conviction had taken place, though there was a similar defect in the evidence, but he doubted the propriety of that decision; and, to provide for any such case, the language of the new statute, under which the prisoner was tried (1 Vict. c. 85, s. 2,) had been altered; for under that section it was sufficient to allege that the prisoner did the act "with intent to commit murder," generally. The prosecutor had here unnecessarily described the intention more particularly than he need have done, but having so described it, it appeared to the learned Baron, that the prosecutor was bound to prove the intention as laid. His lordship therefore desired a fresh indictment to be prepared, alleging the intent to have been "to commit murder" generally, under which the prisoner was tried and convicted, and sentenced to be transported for life. (r) (p) Rex v. Lewis, 6 C. & P. 161. (r) Reg. v. Ryan, 2 M. & Rob. 213. It of shooting at one person under the supposition that he is another, although there be a mistake, the prisoner must intend to murder that individual at whom he shoots; it is true he may be mistaken in fact as to the person, and that it may be owing to such mistake that he shoots at such person, but still he shoots with intent to kill that person. So in the case of cutting; a man may cut another under a mistake that he is another person, but still he must intend to murder the man whose throat he cuts. In Rex v. Mister, Salop Spr. Ass. 1841, cor. Gurney, B., the only count charging an intent to murder was the first, and that alleged the intent to be to murder Mackreth; and although on the evidence it was perfectly clear that Mister mistook Mackreth for Ludlow, whom he had followed for several days before, yet he was convicted and executed, and I believe the point never noticed at all. The case of poisoning one person by mistake for another |