1 Hale, 379. Dyer, 332. 1 Hale, 378. 380. Dalis. 16. Dalt. c. 91. offences, is clearly punishable within the meaning of this act, in the same manner as it was before; for the plain intent of the statutes is only to restrain the judges from proceeding against other crimes, as petit-treasons, but no way to alter the law as to these; and therefore it seems agreed, that persons accused of petit-treason shall be construed to be either not guilty at all, or principal or accessary according to the known rules of law in other cases. Sect. 6. And from hence it follows, that if the fact appear to have been done upon a sudden falling out, or in the party's necessary self-defence, &c. it cannot be petit-treason; for inasmuch as all Crom. 19, 20. petit-treason implies murder, and is the highest degree thereof, wherever the circumstances do not make the offence murder, they cannot make it petit-treason; and vice versa, generally wherever the circumstances are such as will make the killing of a stranger by a stranger murder, they make the killing of a husband or master, &c. petit-treason. Dyer, 254. B. Cor. 119. 40 Ass. 25. 139. Crom. 19. Moor, 91. Dalis. 16. Sect. 7. Yet it hath been adjudged, that if a wife or servant 3 Inst. 20, 21. procure a stranger to kill the husband or master, in the absence of such wife or servant, neither the procurer nor actor are guilty of petit-treason, but of murder only; because it is an allowed maxim, that the offence of an accessary can never be of a higher Dyer, 128. 332. kind than that of the principal; but it seems clear, that if the wife or servant be either actually present when the crime is done, or present only in judgment of law, as being in the same house, but not in the same room, (in which case the hopes of their immediate assistance encourages and emboldens the murderer to commit the fact, which otherwise perhaps he would not have dared to do, and makes them guilty in the same degree, as if they had actually stood by with their swords drawn, ready to second the villainy) such wife, or servant, being principals as much as the stranger, are guilty of petit-treason, and the stranger of murder. 1 Hale, 382. Dyer, 332. Crom. 41. Dalis. 16. 1 Hale, 378. 382. 4 Comin. 204. Sect. 8. But it is said, that if a wife procure a servant to kill the husband, both are guilty of petit-treason; and even if a stranger procure a wife, or servant, to kill the husband or master, it seems that he may be indicted as accessary to petit-treason. Sect. 9. A wife divorced causâ adulterii vel sævitiæ is still within this law, because the bond of matrimony is not thereby dissolved, and she may again lawfully cohabit with her husband. But a divorce causâ consanguinitatis vel præcontractús entirely dissolves the nuptial tie, and annihilates the very character of wife. Therefore, a wife de facto only, and not de jure, cannot commit this crime, for she has no lawful lord to whom she owes subjection and obedience. Neither can a husband be guilty of this crime by killing his wife de jure, for there is no reciprocity of obedience and subjection. Sect. 10. A clergyman living and beneficed in one diocese who kills the bishop or metropolitan of that diocese, or of the diocese where he may be beneficed by dispensation, or the bishop who ordained him, may be guilty of this offence; for a canonical obedience results both from institution and ordination. + Sect. + Sect. 11. Principals in this offence were first debarred the benefit of clergy by 12 Hen. 7. c. 7. and accessaries both before and after, by 4 and 5 Philip and Mary, c. 4. (1) (1) The law considers petty-treason and murder as one offence, differing only in circumstance and degree; Fost. 527. Cases in Cro. Law, 2d Edit. 363. and the principles that govern in the case of murder, are equally applicable to petty-treason, 4 Com. 204. And autrefois acquit, or attaint in murder, is a good bar in petit-treason, and e converso, 2 Hale, 246. 232. 3 Inst. 213. It is included in a pardon under the name of murder, 1 Hale, 378. And the offender may be indicted either for petty-treason, murder, or manslaughter, and tried and found guilty on such indictment, of either of those crimes respectively, according as the case may appear upon the evidence, 1 Hale, 378. Foster, 326. Henrietta Radbourn's Case, Cases in Cro. Law, 363. But if the prosecutor be apprized of the real case, he ought to adapt the bill to the truth of the fact, Fost. 104. 326. For though the offences are to most purposes considered as substantially the same, yet there is at common law some difference with regard to the judgment, and a very material one with regard to the trial. Fost. 327. The punishment is, in a man, to be drawn and hanged; and in a woman, it was, at common law, to be drawn and burned; 1 Hale, 382. 3 Inst. 311. But by 30 Geo. 3. c. 48. the punishment of burning is abolished: see book 2. ch. 48. s. 6. And, on the trial, the prisoner is intitled to a peremptory challenge of thirty-five, Fost. 327. Two witnesses also are required both on the indictment and at the trial, 1 Edw. c. 12. Fost. 337. And the 5 and 6 Ed. 6. c. 11. by general words extending to all treasons, requireth that the witnesses, if living, shall be examined in person upon the trial in open court. Depositions therefore taken before the coroner, or informations taken by a justice of peace, are not evidence whereon to ground a conviction of petittreason, if the party be living, though unable to travel, or kept out of the way by the prisoner, or his procurement. Fost. 337. See Radbourn's Case, Cases in Cro. Law, 363. CHAP. XV. OF MAIMING, Common, Felonious, and aggravated Assaults. IN treating of the offences of Mayhem, I shall consider, 2. How they are punished by the common law. 3. How by statute. As to the first particular, viz. What shall be esteemed maims. Sect. 1. It seems, that such a hurt of any part of a man's body S. P. C. 3. whereby he is rendered less able, in fighting, either to defend Co. Lit. 126. himself or to annoy his adversary, is properly a maim. 3 Inst. 62. 118. 3 Bl. Com. 12. and see Mr. Reeves's Hist. English Law, 2 vol. page 34, 35. Sect. 2. And therefore, the cutting off or disabling or weaken- 25 Edw, 3. ing a man's hand or finger, or striking out his eye or fore-tooth, pl. 94. or castrating him, are said to be maims; but the cutting off his 142.458. ear or nose, &c. are not esteemed maims, because they do not 4 Bl. Comm. weaken, but only disfigure him. As to the second particular, viz. How such offences are punished by the common law. 206. Sect. 3. It is to be observed, that all maim is felony. It is Bract. 144. said, that anciently castration was punished with death, and other Fleta, bk. 1. maims with the loss of member for member. But afterwards, no maim was punished in any case with the loss of life or member, 3 Inst. 62. 118. but only with fine and imprisonment. c. 40. Stra. 1100. Sect. Co. Lit. 127. Woodburn and 6 St. Tr. 212. Sect. 4. By the common law also, if a person maim himself, in order to have a more specious pretence for asking charity, or to prevent his being impressed as a sailor, or inlisted as a soldier, he may be indicted, and, on conviction, fined and imprisoned. As to the third particular, viz. How far maim is punishable by statute. " 66 any + Sect. 5. By 22 and 23 Car. 2. c. 1. it is enacted, "That if any person shall, on purpose and of malice forethought, and by “lying in wait, unlawfully cut out or disable the tongue, put out an eye, slit the nose, cut off a nose or lip, or cut off or disable limb or member of any subject of his majesty, with inten"tion in so doing to maim or disfigure, in any the manners before" mentioned, such his majesty's subjects, that then and in every "such case, the person or persons so offending, their counsellors, aiders, and abettors, knowing of, and privy to the offence as aforesaid, shall be and are by the said statute declared to be "felons, and shall suffer death as in cases of felony without be"nefit of clergy." 66 Sect. 7. But by 22 and 23 Car. 2. c. 1. s. 2. it is provided, "That no attainder of such felony shall extend to corrupt the "blood, or forfeit the dower of the wife, or the lands, goods, or "chattels of the offender." (1) + Sect. 8. If a man attack another of malice forethought, in order to murder him with a bill, or any other such like instrument, which cannot but endanger the maiming him, and in such attack happen not to kill, but only to maim him, he may be indicted on this statute, together with all those who were his abettors, &c. and it shall be left to the jury on the evidence, whether there was a design to murder by maiming, and consequently a malicious intent to maim as well as to kill, in which case the offence is within the statute, though the primary intention was to murder. (2) (1) This act, which is commonly called the Coventry Act was occasioned by an assault on Sir John Coventry in the street and sliting his nose, by some persons who lay in wait for him, this, it is said, was done, in revenge from some obnoxious words uttered by him in parliament, in which he reflected on the profligate conduct of Chas. II. in respect to his intercourse with actresses. In order to bring an offender within this act, the fact must be done by lying in wait; but the st. of 43 Geo. 3. c. 58. gives a much more extensive remedy, and supersedes in a great measure the necessity of the statute of Cha. 2. and of 9 Geo. 1. On this subject vide next sect. Assault with Intent to murder. (2) This case has however been since questioned, in the case of Rhynwick Williams, indicted for assaulting Miss Porter, with an intent to cut her garments, against the statute of 6 Geo. 1. It appeared that the prisoner's object was the brutal one of wounding her person, though in doing so he necessarily cut her clothes. Upon the authority of the ruling in the case of Coke and Woodburn, that the party intended all the minor things necessary to accomplish his purpose, though not his ultimate + Sect. and principal intent, Buller, J. directed the jury to find him guilty of the charge in the indictment, namely, of an assault with intent to cut and destroy the garments; but the judges held this to be wrong: and Eyre, C. B. questioned the propriety of the decision in the case of the King against Coke and Woodburn. E. P. C. v. 1. p. 424. " Several cases have been decided as above under the Coventry act, as to what should be considered a lying in wait," but they are now immaterial since the passing the statute of 43 Geo. 3. as the lying in wait is no ingredient in the assaulting under the Jatter act. But it is necessary to consider what shall be said to be a cutting under this last act. This is a question of fact upon the evidence whether the wounding be a cutting or not, and it is immaterial with what instrument it be done, whether with an instrument made for cutting or not, so that in fact the wound be a "cut;" this was decided in the case of one Harwood, who was convicted at the Old Bailey, Jan. sess. 1805. He had been de tected in attempting to commit a felony, and in order to escape apprehension he struck the prosecutor with an iron crow bar on the head. The surgeon L. 53. Sect. 9. It has been decided upon the Coventry Act that a Barney Carrol's large transverse cut across the nose, so wide and deep as to render Case, Cases C. the bone visible, is a slitting of the nose within the statute 22 and 23 Car. 2. c. 1. although the nostril is not thereby perforated. Evidence being given by surgeons that what was then called a cut was formerly in old surgical writers called a slit, the term used in the statute. Sess. 1763. + Sect. 10. But it has been ruled, that where a husband, who Lee's Case, had lived a long while separate from his wife, visited her and per- O. B. July suaded her to let him sleep with her, and took an opportunity, coram PARKER, during the night and while she was asleep, to make a wound Chief Baron, across his wife's throat, about three inches in length, with a razor which he had procured and concealed for the purpose, the of Tickner's Case, fence was not complete; for though it was a sufficient lying in Cases C. L. wait, yet it was not such a maim as the act requires, as both are necessary before an offender can be convicted. 170. + Sect. 11. So also it has been said, that to follow an accom- Case of John plice in picking pockets, with intent to maim any person who Mills, O. B. shall detect him, is a lying in wait within this statute; for a per- 1783, coram April Sess. son who intends to maim another, and by deliberately watching EYRE, Chief an opportunity, carries that intention into execution, may be said Baron. to lie in wait on purpose. Cases C. L. 172, notis. reserved for the + Sect. 12. But it seems, that the lying in wait must be for the Tickner's Case, purpose of committing the maim; for where a person was steal- O. B. Feb. Sess. ing the turnips of another from his field, and, on the owner going 1778, on a case up to him, struck him immediately on the nose, with a sharp in- opinion of the strument fixed into a stick of wood, which slit his nose, it was twelve judges. determined, that although this was a slitting of the nose, yet neither the malice nor the lying in wait were sufficiently clear, to bring the offence within the statute. Of Assaults and Batteries. As to ASSAULTS AND BATTERIES, I shall consider the following particulars : 1. What shall be said to be an assault. 2. What shall be said to be a battery. 3. In what cases assault and battery may be justified. 4. In what manner they are to be punished. As to THE FIRST POINT, viz. What shall be said to be an assault. surgeon in his evidence stated that a part of the bone of the skull was cut out like a piece of quill. The chief baron, who tried the prisoner, thought, as the implement was rather calculated for bruising than cutting, it was doubtful whether it came within the meaning of the act; but the judges held the conviction right. So in a case tried before Mr. J. Chambre at York Lent Ass. 1806, the incisions were made with Sect. a claw of a hammer, but the surgeon stated they were incisions. The judges held the conviction right. But in a case of John Adams, who was tried at the Old Bailey, Jan. sess. 1808-a blow on the head given with an iron bar, and which had given a contused and not an incised wound, the judges held the case not within the act. Pulton, 4. 6 Mod. 173, 174. 1 Vent. 256. 1 Mod. 3. 1 Keb. 921. 41 Ed. 3. 40. 42 Ed. 3. 7. Sect. 1. It seems that an assault is an attempt, or offer, with force and violence, to do a corporal hurt to another; as by strik 2 R. Abr. 545. ing at him with or without a weapon; or presenting a gun at him at such a distance to which the gun will carry; or pointing a pitch-fork at him, standing within the reach of it; or by holding up one's fist at him; or by any other such-like act done in an angry threatening manner; and from hence it clearly follows, that one charged with assault and battery, may be found guilty of the former, and yet acquitted of the latter. But every battery includes an assault; therefore on an indictment of assault and battery, in which the assault is ill laid, if the defendant be found guilty of the battery, it is sufficient. Notwithstanding the many ancient opinions to the contrary, it seems agreed at this day, that no words whatsoever can amount to an assault. 45 Ed. 3. 24,25. 2 R. Abr. 545. 22 Ass. 60. 10 Mod. 187. 2 Keb. 545. Law of Evid. 235. 22 Ass. 11. 6 Mod. 149. 1 Mod. 3. 2 R. Abr. 546. 6 Mod. 172. 230. 263. 4 Comm. 145. 216. 11 Mod. 43. 52. 2 Salk. 642. L. Ray. 177. 1 Sid. 246. Holt, 699. 8 Mod. 283. As to the SECOND POINT, viz. What shall be said to be a battery. Sect. 2. It seems that any injury whatsoever, be it never so small, being actually done to the person of a man in an angry, revengeful, rude, or insolent manner, as by spitting in his face, or any way touching him in anger, or violently jostling him out of the way, are batteries in the eye of the law. But it is said to be no battery to lay one's hand gently on another whom an officer has a warrant to arrest, and to tell the officer that this is the man he wants. As to THE THIRD POINT, viz. In what cases an assault and battery may be justified. Sect. 3. This is so fully set forth in the chapter of Surety of the Peace, that there seems to be no need of any consideration thereof in this place; and therefore I shall only add, that where a man in his own defence beats another who first assaults him, &c. he may take an advantage thereof upon an indictment, as well as upon an action; but with this difference, that in the first case he may give it in evidence upon the plea of not guilty, and in the latter he must plead it specially. As to THE FOURTH POINT, viz. How unlawful assaults and batteries are punished. Sect. 4. There is no doubt but that the wrongdoer is subject 1 Bac. Abr. 56. both to an action at the suit of the party, wherein he shall render damages, &c. and also to an indictment at the suit of the king, wherein he shall be fined according to the heinousness of the offence. It had been ruled that a man could not be indicted in one indictment for assaulting two persons, but that there ought to have been a separate indictment for the assault upon each, (R. v. Clenden, Lord Raymond, 1572, 2 Str. 870); but this doctrine was overruled in the case of R. v. Benfield and Saunders, 2 Burr. 984, and Buller J. said, "the point is, where it is one act, " and then the offence is the same.' " Assault |