Indictment. were, on which the defendant struck at and maimed him, it was left to the jury to determine whether he had deliberate intention to wound, and they found him guilty, 1 Leach, 259. So where the prisoner was in concert with pickpockets, to cut or stab those who should oppose them, and, in prosecution of this intention, he ran to a person who had apprehended one of his associates, and maimed him with a knife, this was holden to be a lying in wait within the statute, Leach, 57, n. (a) 1 East, P. C. 397, 8. Where, however, the injury arises out of a sudden attack, though the prisoner is engaged in an unlawful purpose, the offence will not be capital. This was held where the defendant was stealing turnips, and on being accosted by a servant of the owner, struck him with an instrument of iron and wood, which he had with him, 1 Leach, 187. And where the commander of a press-gang wounded a person in the attempt to impress him, who resisted, not being liable to be taken, though antecedent malice was proved, it was held that a sufficient lying in wait had not been shown. 1 East, P. C. 399. These cases show the different construction put on the common and statute law, for, in any of these cases, had death ensued, malice would have been implied, and the parties convicted of murder. See ante 727. III. There must be an intent to disfigure. But if the design was to murder by maiming, and the party, though wounded, recovers, this deeper guilt will be no excuse, for the primary intent to maim will not be merged in the ultimate design to kill, 6 Harg. St. Tr. 211. And the question of intent is matter of fact for the consideration of the jury, and not a point of law for the decision of the judge, id. ibid. It is not necessary that the intention to maim should be directed against any particular individual; for if it be general against any person who may resist an unlawful purpose, the offender will be liable, though the party injured be a stranger, 1 Leach, 55. 1 East, P. C. 396.—But most of the nice constructions which have been put on the statute of Charles are now become unimportant, for the 48 Geo. III. c. 58. enacts," that any person stabbing or cutting another with intent to murder, rob, maim, disfigure, or disable him, or to do him some other bodily harm, or to oppose his own apprehension, or the lawful taking of an accomplice, shall be guilty of felony without benefit of clergy." See post 788. &c. where this act is recited at large. Indictment.-Every indictment for maiming, though at common law, must charge the offence to have been done feloniously, because though the defendant was formerly punished with loss of member, Hawk. b. 2. c. 23. s. 18. The term maheimavit was always essential formerly, as the word maim is at present, id. s. 17. The wound should be set forth with the same degree of precision as in cases of murder, id. s. 79. and a similar conclusion must be drawn, that so the defendant did feloniously maim, &c. though this will not supply the omission of either of these words in the previous description of the violence, 1 East, P. C. 402. In case of indictment on the statute of Charles, its language must be accurately followed; so that the expressions on purpose, of malice aforethought, and by lying in wait, as well as the allegation that the act was done with intent to maim and disfigure, are material, id. ibid. As to the proceedings by appeal, the defence, and the mode of trial when that course is taken, See Hawk. b. 2. c. 23. s. 15 to 27. and 1 East, P. C. 402, S. but the subject is not of sufficient practical importance at the present day, to require further discussion here. INDICTMENT FOR SLITTING NOSE ON COVEN TRY ACT. That J. W. late of, &c. labourer, and A. C. late of, &c. esquire, Indictment ou on, &c. contriving and intending one E. C. then and yet being a 22 and 23 Car. Coventry Act, subject of our said lord the king, to maim and disfigure (b) at, 2. c. 1. For felony, by &c. with force and arms, in and upon the said E. C. in the peace slitting a nose, of God and our said lord the king, then and there being, on pur-aider and abetand against the pose, (c) and on, (or "of their ") malice forethought, (d) and by tor. (a) lying in wait unlawfully and feloniously (e) did make an assault, and the said J. W. with a certain iron bill of the value of one penny, which he the said J. W. in his right hand then and there had and held (f) the nose of the said E. C. on purpose, and of his malice forethought, and by lying in wait, then and there unlawfully and feloniously did slit, with intention, the said E. C. in so doing, in manner aforesaid, to maim and disfigure, (g) and that the (a) From Cro. C. C. 264. See the indictment on which Carroll and King were convicted, Cro. C. A. 219, and the proceedings, 1 Leach, 55. See also an abstract of the indictment against Mills, 1 Leach, 259, and the Latin indictment against Coke and Woodbourne. 6 Harg. St. Tr. Append. 60. and see in indictments under 4 Hen. 5. c. 5. for beating out eyes, and cutting out the tongue, West. 103, 4. (b) This is necessary, 1 East, (cd) These words are material, (f) The same precision necessa- (g) Vide supra. aforesaid A. C. at the time the aforesaid felony by the said J. W. in mammer and form aforesaid, was done and committed, to wit, on the said, &c. at, &c. with force and arms, on purpose, and, of his malice forethought, and by lying in wait unlawfully, and feloniously was present, (knowing of and privy to the said felony) (h) aiding and abetting the said J. W. in the felony aforesaid, in manner and form aforesaid done and committed. And so the jurors, &c. do say () that the said J. W. and A. C. on the said, &c. at, &c. aforesaid, with force and arms, on purpose, and of their malice forethought, and by lying in wait, the felony aforesaid, in form aforesaid, unlawfully and feloniously did do and commit, and each of them did do and commit, against the peace, &c. and against the form, &c. On 43 Geo. III. c. 58. s. 1. for maliciously cutting the prosecutor. (k) INDICTMENT FOR MALICIOUSLY CUTTING, ON 43 GEO. III. C. 38. That C. H. late of, &c. on, &c. with force and arms, at, &c. in upon one C. R. a subject of our said lord the king, then and and (h) The words of the statute. (k) See other precedents, Cro. subject or subjects, or with intent to do some other grievous bodily harm to such his majesty's subject or subjects, or with intent to obstruct, resist, or prevent the lawful apprehension and detainer of the person or persons so stabbing or cutting, or the lawful apprehension and detainer of any of his, her, or their accomplices, forany offences for which he, she, or they may respectively be liable by law to be apprehended, imprisoned, or detained, 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 such his majesty's subject or subjects thereby to murder, or thereby to cause and procure the miscarriage of any woman then being quick with child (†) or shall wilfully, maliciously, and unlawfully + See provisions post in cases where the woman was not quick with child. there being, feloniously, wilfully, maliciously, and unlawfully did make an assault, and with a certain sharp instrument, then and there feloniously, wilfully, maliciously, and unlawfully did strike and cut the said C. R. in and upon the right arm of her the said C. R. with intent in so doing wilfully, and of his malice aforethought, to kill and murder her the said C. R. to the great damage of the said C. R. against the form, &c. and against the peace, &c. [Second Count same as the first, only instead of stating the intent Second count. to murder, aver it to be "to disable her the said C. R." and conclude as before. Third count similar to the first, only stating the Third count. intent to be" to do some grievous bodily harm to the said C. R."] III. c. 58. s. 1. That J. M. late of, &c. H. M. late of, &c. T. M. late of, &c. For malicious. ly shooting at on, &c. with force and arms, at, &c. with a certain pistol loaded and cutting, with gunpowder and divers, to wit, six leaden slugs, feloniously, under 43 Geo. wilfully, maliciously and unlawfully, did shoot at one J. M., then (i) and there being a subject of our said lord the king, and in the peace of God and our said lord the king then and there being, and with divers sharp and offensive weapons, to wit, with a certain sword, and with a certain hedging hook, him the said J. M. then and there being such subject as aforesaid, they the said J. M. H. M. and T. M. then and there feloniously, wilfully, maliciously and unlawfully, did cut with intent in so doing, that is to say, in so shooting at and cutting the said J. M., and by means thereof, feloniously, wilfully and of their malice aforethought to murder him the said J. M., then and there being such subject as aforesaid, against the form, &c. and against the murder at common law, the de- set fire to any house, barn, gra- Crim. Law. ante 154, 157. (i) See a form in 2 Starkie, P Second count, peace, &c. And the jurors, &c. that the said J. M., &c. on, &c. with force and arms, at, &c. with a certain pistol loaded with gunpowder, and divers, to wit, six leaden slugs, feloniously, wilfully, maliciously and unlawfully, did shoot at the said J. M., then and there being such subject as aforesaid, &c. [as in the first count.] with intent in so doing, that is to say, in so shooting at and cutting the said J. M., and by means thereof to maim and disable him the said J. M., then and there being such subject as aforesaid, against Third count. the form of the statute, &c. and against the peace, &c. The like with intent in so doing, to wit, in so shooting at and cutting the said J. M., and by means thereof to do some grievous bodily harm to him the said J. M., then and there being such subject as aforesaid, Fourth count. against the form, &c. And the jurors, &c. that the said J. M. H. M. and T. M. on the said eighteenth day of April, in the fiftysecond year aforesaid, with force and arms, at, &c. with a certain pistol loaded with gunpowder, and divers, to wit, six leaden slugs, feloniously, wilfully, maliciously and unlawfully, did shoot at the said J. M., then and there being such subject as aforesaid, and in the peace, &c. then and there being, with intent in so doing, and by means thereof then and there feloniously, wilfully and of their malice aforethought to murder him the said J. M., then and there being such subject as aforesaid, against the form of the statute, &c. and against the peace, &c. The like with intent in so doing, and by means thereof, to maim and disable him the said J. M. then and there being such subject as aforesaid, against the form, &c. The like with intent in so doing and by means thereof to do some grievous bodily harm to him the said J. M., then and there being Seventh count, such subject as aforesaid, against the form, &c. And the jurors, &c. that the said J. M., H. M. and T. M., on, &c. with force and arms, at, &c. with divers sharp and offensive weapons, to wit, with a certain sword, and a certain hedging-book, feloniously, wilfully, maliciously and unlawfully, did cut the said J. M., then and there being, such subject as aforesaid, and in the peace, &c. then and there being with intent in so doing, and by means thereof then and there feloniously, wilfully and of their malice aforethought, to murder him the said J. M., then and there being such subject as Eighth count. aforesaid, against the form, &c. The like with intent in so doing, and by means thereof, to maim and disable him the said J. M., then and there being such subject as aforesaid, against the form, &c. Ninth count. The like, with intent in so doing, and by means thereof, to do some grievous bodily harm to him the said J. M., then and there being Teth count. such subject as aforesaid, against the form, &c. And the jurors, &c. that the said J. M., &c. afterwards, to wit, on, &c. with force and arms, at, &c. with a certain pistol loaded with gunpowder, and Fifth count. Sixth count. |