Conspiring or persuading to murder in Ireland. Persons wil fully shooting, Throwing sulphuric acid, &c.. punishable with death. one month at a time, and not exceeding three months in any one year. (g) It has been held, that if there be a verdict of not guilty of felony on all the counts of an indictment for wounding with intent to maim, &c., but a verdict of guilty of an assault on the last count, that the prisoner may be sentenced under this statute, although the last count be bad. (h) This chapter may be concluded with the mention of the 10 Geo. 4, c. 34, relating to Ireland, by which the conspiring to murder any person, and the proposing, soliciting, encouraging, persuading, or endeavouring to encourage or persuade to murder, are made capital felonies. (i) The 10 Geo. 4, c. 38, an act for the more effectual punishment of attempts to murder in Scotland, after repealing the 6 Geo. 4, c. 126, enacts, by sec. 2, that " If any person shall, within Scotland, wilfully, maliciously, and unlawfully shoot at any of his Majesty's subjects, or shall wilfully, maliciously, and unlawfully present, point, or level any kind of loaded fire-arms at any of his Majesty's subjects, and attempt, by drawing a trigger or in any other manner, to discharge the same at or against his or their person or persons; or shall wilfully, maliciously, and unlawfully stab or cut any of his Majesty's subjects, with intent, in so doing, or by means thereof, to murder or to maim, disfigure or disable such his Majesty's subject or subjects, or with intent to do some other grievous bodily harm to such his Majesty's subject or subjects; or shall wilfully, maliciously, and unlawfully administer to or cause to be administered to or taken by any of his Majesty's subjects any deadly poison, or other noxious and destructive substance or thing, with intent thereby, or by means thereof, to murder or disable such his Majesty's subject or subjects, or with intent to do some other grievous bodily harm to such his Majesty's subject or subjects; or shall wilfully, maliciously, and unlawfully attempt to suffocate, or to strangle, or to drown any of his Majesty's subject or subjects, with the intent thereby, or by means thereof, to murder or disable such his Majesty's subject or subjects, or with intent to do some other grievous bodily harm to such his Majesty's subject or subjects; such person so offending, and being lawfully found guilty, actor or art and part of any one or more of the several offences hereinbefore enumerated, shall be held guilty of a capital crime, and shall receive sentence of death accordingly. By sec. 3, "If any person in Scotland shall, from and after the passing of this act, wilfully, maliciously, and unlawfully throw at, or otherwise apply to any of his Majesty's subject or subjects any sulphuric acid, or other corrosive substance, calculated by external application to burn or injure the human frame, with intent in so doing, or by means thereof, to murder or maim, or disfigure or disable such his Majesty's subject or subjects, or with intent to do some other grievous bodily harm to such of his Majesty's subject or subjects, and where, in consequence of such acid or other substance (g) See the sections, ante, p. 722 and the sections and cases upon them, post, tit. Aggravated Assaults." (h) Reg. v. Nicholls, 9 C. & P. 267, Gurney, B. See this case, post, tit. Ag (i) See the sections in note (y), ante, p. 722. being so wilfully, maliciously, and unlawfully thrown or applied with intent as aforesaid, any of his Majesty's subjects shall be maimed, disfigured, or disabled, or receive other grievous bodily harm, such person, being thereof lawfully found guilty, actor, or art and part, shall be held guilty of a capital crime, and shall receive sentence of death accordingly." By sec. 4, "If it shall appear, upon the trial of any person accused of any of the several offences hereinbefore enumerated, that under the circumstances of the case, if death had ensued, the act or acts done would not have amounted to the crime of murder, such person shall not be held guilty of a capital crime, or be subject to the punishment aforesaid." Proviso if the acts done would not have amounted to murder. CHAPTER THE TENTH. OF COMMON AND AGGRAVATED ASSAULTS. Definition of an assault. No words will amount to an assault. SECT. L Of Common Assaults. AN assault is an attempt or offer, with force and violence, to do a corporal hurt to another; as by striking at another with a stick or other weapon, or without a weapon, though the party striking misses his aim. So drawing a sword or bayonet, or even holding up a fist in a menacing manner, throwing a bottle or glass with intent to wound or strike, presenting a gun at a person who is within the distance to which the gun will carry, pointing a pitchfork at a person who is within reach, or any other similar act, accompanied with such circumstances as denote at the time an intention, coupled with a present ability, of using actual violence against the person of another, will amount to an assault. (a) But it appears to be now quite settled, though many ancient opinions were to the contrary, that no words whatsoever, be they ever so provoking, can amount to an assault. (b) And the words used at the time may so explain the intention of the party as to qualify his act, and prevent it from being deemed an assault: as where A. laid his hand upon his sword, and said, "If it were not the assize time, I would not take such language from you," it was holden not to be an assault, on the ground that he did not design to do the other party any corporal hurt at that time, and that a man's intention must operate with his act in constituting an assault. (c) It has been laid down by a very learned judge, notwithstanding a contrary opinion in an earlier case, (d) that if a person present a pistol, purporting to be a loaded pistol, so near as to produce danger (a) 1 Hawk. P. C. c. 62, s. 1. Bac. Abr. tit. "Assault and Battery” (A).3 Blac. Com. 120. Burn Just. tit. " Assault and Battery," 1. 1 East, P. C. c. 8, s. 1, p. 406. Bull. N. P. 15. Selw. N. P. tit. "Assault and Battery," 1. (b) 1 Hawk. P. C. c. 62, 1. 1. Bac. Abr. tit. " Assault and Battery” (A). (c) Turberville v. Savage, 1 Mod. 3. S. C. 2 Keb. 545. (d) Anonymous, cor. Erskine, J., mentioned by Ludlow, Serjt., in Reg. v. St. George, 9 C. & P. 492. 66 to life if the pistol had gone off, it is an assault in point of law, although in fact the pistol be unloaded. The learned judge said, My idea is, that it is an assault to present a pistol at all, whether loaded or not. If you threw the powder out of the pan, or took the percussion cap off, and said to the party this is an empty pistol, then that would be no assault, for there the party must see that it was not possible that he should be injured; but if a person presents a pistol which has the appearance of being loaded, and puts the party into fear and alarm, that is what it is the object of the law to prevent." (e) However, where in an action for an assault and presenting a loaded pistol at the plaintiff, it appeared that the defendant cocked a pistol, and presented it at the plaintiff's head, and said, if he was not quiet he would blow his brains out; but there was no evidence that the pistol was loaded; Lord Abinger, C. B., held, that if the pistol was not loaded it would be no assault. (ƒ) It is not every threat, where there is no actual personal violence, that constitutes an assault; there must, in all cases, be the means of carrying the threat into effect. If, therefore, a party be advancing in a threatening attitude, e. g., with his fist clenched, to strike another, so that his blow would almost immediately have reached such person, and be then stopped, it is an assault in law, if his intent were to strike such person, though he was not near enough at the time to have struck him. (g) The plaintiff was walking on a footpath by a road side, and the defendant, who was on horseback, rode after him at a quick pace; the plaintiff then ran away into his own garden, and the defendant rode up to the gate, and shook his whip at the plaintiff, who was about three yards off; it was held, that if the defendant rode after the plaintiff, so as to compel him to run into his garden for shelter to avoid being beaten, it was an assault. (h) A battery is more than an attempt to do a corporal hurt to Of a battery. another: but any injury whatsoever, be it ever so small, being actually done to the person of a man, in an angry or revengeful, or rude or insolent manner, such as spitting in his face, or in any way touching him in anger, or violently jostling him out of the way, is a battery in the eye of the law. (i) For the law cannot draw the line between different degrees of violence, and, therefore, totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it in any the slightest manner. (j) It should be observed that every battery includes an assault. (k) The injury need not be effected directly by the hand of the party. Thus there may be an assault by encouraging a dog to bite; by riding over a person with a horse; or by wilfully and violently driving a cart, &c. against the carriage of another person, and (e) Reg. v. St. George, 9 C. & P. 483, Parke, B.; for the facts of this case sec ante, p. 728. (f) Blake v. Barnard, 9 C. & P. 626. (g) Stephens v. Myers, 4 C. & P. 349, Tindal, C. J. (h) Mortin v. Shoppce, 3 C. & P. 373, Lord Tenterden, C. J. (i) Bac. Ab. tit. "Assault and Battery" (k) Termes de la ley, "Battery," 1 The injury need not be direct from the hand of the party assault Ing. Assault by exposing another to the inclemency of the weather. Assault by indecent liber ties with females. thereby causing bodily injury to the persons travelling in it. (7) And it seems that it is not necessary that the assault should be immediate; as where a defendant threw a lighted squib into a market-place, which, being tossed from hand to hand by different persons, at last hit the plaintiff in the face, and put out his eye, it was adjudged that this was actionable as an assault and battery. (m) And the same has been holden where a person pushed a drunken man against another, and thereby hurt him: (n) but if such person intended doing a right act, as to assist the drunken man, or to prevent him from going along the street without help, and in so doing a hurt ensued, he would not be answerable. (0) Where a defendant put some cantharides into some coffee, in order that a female might take it, and she did take it, and was made ill by it, it was held to be an assault. (p) There may be an assault also by exposing a person to the inclemency of the weather. Thus, in a case where an indictment against a mistress for not providing sufficient food and sustenance for a female servant, whereby the servant became sick and emaciated, was ruled to be bad, because it did not allege that the servant was of tender years, and under the dominion and control of her mistress; it was suggested that the indictment also charged that the defendant exposed the servant to the inclemency of the weather; and it was holden that such exposure was an act in the nature of an assault, for which the defendant might be liable, whatever was the age of the servant. (q) But if one has an idiot brother, who is bedridden in his house, and he keeps him in a dark room, without sufficient warmth or clothing, this is not an assault or imprisonment, as it is an omission without a duty, which will not create an indictable offence. (7) Where parish officers, by force and against her consent, cut off the hair of a young woman who was an inmate of a workhouse, it was held an assault. (s) If a master take indecent liberties with a female scholar without her consent, he is liable to be punished for an assault; though she did not resist. A master took very indecent liberties with a female scholar of the age of thirteen, by putting her hand into his breeches, pulling up her petticoats, and putting his private parts to hers: she did not resist, but it was against her will. The jury found him guilty of an assault with intent to commit a rape, and also of a common assault; and the Judges thought the finding as to the latter clearly right. (t) And making a female patient strip naked, (1) See the precedents for assaults of this kind, Cro. Circ. Comp. 82. 3 Chit. Crim. L. 823, 824, 825. 2 Starkie, 388, 389. (m) Scott v. Shepherd, 2 Blac. Rep. (n) Short v. Lovejoy, cor. Lee, C. J., (p) Reg. v. Button, 8 C. & P. 660, party taking the coffee. C. S. G. (9) Rex v. Ridley, cor. Lawrence, J., Salop Lent Ass. 1811. 2 Campb. 650, 653. The counsel for the prosecution admitted that they could not prove this charge in the indictment to any extent; and the defendant was accordingly acquitted. That negligence and harsh usage may be a means of committing murder, see ante, 489. (r) Rex v. Smith, 2 C. & P. 449, Burrough, J. (s) Forde v. Skinner, 4 C. & P. 239, Bayley, J. (t) Rex v. Nichol, Mich. T. 1807. MS. Bayley, J., and Russ. & Ry 130. |