Assault with intent to Murder, or do grievous Bodily Harm. The various intentions and motives with which assaults may be made upon the persons of others, or the circumstances by which they may be aggravated, may be distributed-1. With intent to murder or do bodily harm. 2. With intent to rob. 3. With intent to destroy garments. 4. Assaulting master woolcomber for not complying with illegal bye-laws. 5. Assaults on account of money won at gaming. 6. Assaulting persons wrecked. 7. Mariner assaulting his commander to hinder him fighting his ship. 8. Beating clerk in orders. 9. False imprisonment; 10. Kidnapping and leaving seamen abroad. The ancient common law of England provided with such anxiety for the personal safety of the subject, that every act done against another, which might in its consequences prove fatal to his existence, was construed to be felonious. Of this there are several instances in the Year-Books of Edward the Second and Edward the Third. (a) In the reign of Edward the Fourth the (a) 8 State maxim that voluntas reputabitur pro fucto began to grow obso- Trials, 292. lete; (b) and this offence was considered as a high misdemeanor (b) 5 Reeves's only, punishable at discretion. (c) But the daring outrages of Book, 9 Edw. 4. certain persons, soon after the accession of the present royal fa- pl. 28. mily, confederated in disguised habits, under the appellations of (c) P. Serj. Chethe Blacks, made it necessary that the old law of England should, shire, 8 St. Tr. in some instances, be revived. + Sect. 2. And accordingly it is enacted by 9 Geo. 1. c. 22. sect. 1. "That if any person or persons shall wilfully and ma"liciously shoot at any person in any dwelling house or other place; or shall forcibly rescue any person in lawful custody "for the said offence; or shall, by gift or promise of money, or "other reward, procure any other to join with him or them in "such unlawful act, such offenders shall be adjudged guilty of felony, and suffer death without the benefit of clergy. 66 Sect. 3. By sect. 14. Every offence done or committed ❝contrary to this act, shall and may be enquired of, examined, "tried, and determined in any county within that part of Great "Britain called England, in such manner and form as if the fact "had been therein committed." Upon this act the following constructions have been made : Sect. 4. FIRST, That this clause of the act is entire and independant, and has no relation whatever to that part of the act relating to the offenders being armed and disguised. Sect. 5. SECONDLY, That a private prosecutor has an option to prefer his indictment for the above offence in any county of England which shall appear to be most favourable to the ends of justice. H. 413. Year 292. By all the judges in Arnold's case, 10 Geo. 1. 8 St. Tr. 313. Richard Morris's case, 2 Bl. Rep. 733. 4 Term Rep. 490. Cro. Law, 282. Durore, Cases + Sect. 6. THIRDLY, It is said, that if the shooting be in a Rex v. Count dwelling house, it is not necessary to state the name of the person whose house it is; but it is clear, that if the prosecutor do state the name, it must be stated truly; and therefore if there be a variance in the christian name only, it is fatal. + Sect. Gastineau's case, 323. + Sect. 7. FOURTHLY, It is also clearly agreed, that to make Cases Cro. Law, an offender guilty of maliciously shooting within the penalties of this act, it must appear in evidence to be a shooting under such circumstances, that if death had ensued, the homicide would, in construction of law, have amounted to the crime of murder; for otherwise the absurdity might follow, that the offender might be O. B. Oct. Ses. convicted of a capital crime, although the party is living, and of a single felony, viz. manslaughter, though the party were killed. Rex v. Dunn, 1788. Rex v. Davis, Rex v. Elliott, sions, 1787. Sect. 8. FIFTHLY, It seems also to be certain that as this is a new crime, and the statute has made it consist in being committed not only wilfully but maliciously, it is necessary in the indictment to charge that the offender" wilfully and maliciously shot, &c." + Sect. 9. SIXTHLY, It is also said, that before a person can O. B. July Ses- be convicted upon this statute, the jury must be satisfied that the instrument was loaded with gunpowder, and with a bullet, slug, or other deadly substance; but that it is not necessary to give evidence of these facts specifically, for that if they appear from the general circumstances of the case it is sufficient. Empson's case, Sessions, 1781. See also Gansell's case, 1773. The Coal-heav ers' case, Cases Crown Law, 61. The case of Gib son, Mutton, and Sect. 10. SEVENTHLY, It seems also to be necessary to prove that the gun, or other instrument, was pointed not merely toward but directly at the prosecutor. Sect. 11. EIGHTHLY, It is determined, that this statute extends not only to the person or persons who actually shoot at another, but also to every person who is present aiding and assisting to commit the offence; for as the statute creates a new felony, it of course possesses all the qualities incidental to a felony at common law. Sect. 12. It seems therefore that an indictment charging several persons jointly as principals in the first degree is good, and that if it appear that some one person then present did maliciously shoot at another, evidence that some or all the persons indicted were only guilty as principals in the second degree, is suf ficient to convict one, or some, or all of the defendants on such joint charge. " By stat. 43 Geo. 3. c. 58. it is enacted "That if any person or persons, from and after the 1st day of July, 1803, shall, either in England or Ireland, wilfully, maliciously, and unlawfully shoot at any of his Majesty's subjects; or shall wilfully, maliciously, and "unlawfully present, point, or level any 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 un"lawfully stab or cut any of his Majesty's subjects with intent, in "so doing or by means thereof, to murder or rob, 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 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 for any of "fence 66 66 " fences for which he, she, or they, may respectively be liable by "law to be apprehended, imprisoned or detained; or shall wil“fully, maliciously, and unlawfully administer to, or cause to be "administered to, or taken, by any of his Majesty's subjects, 66 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 mis"carriage of any woman, then being quick with child, that then "and in every such case the person or persons so offending, their "counsellors, aiders, and abettors, knowing of and privy to such "offence, shall be, and are hereby declared to be felons, and shall "suffer death as in cases of felony, without benefit of clergy; provided always, that in case it shall appear on the trial of any person or persons indicted for the wilfully, maliciously and unlawfully shooting at any of his Majesty's subjects, or for wilfully, maliciously and unlawfully presenting, pointing or le"velling any kind of loaded fire-arms at any of his Majesty's sub"jects, and attempting by drawing a trigger, or in any other manner to discharge the same, at or against his or their person " or persons, or for the wilfully, maliciously and unlawfully stab"bing or cutting any of his Majesty's subjects, with such intent "as aforesaid, that such act of stabbing or cutting (3) were com"mitted under such circumstances, as that, if death had ensued "therefrom, the same would not in law have amounted to the "crime of murder; then and in every such case the person or persons so indicted shall be deemed and taken to be not guilty " of the felonies whereof they shall be so indicted, and be thereof acquitted." 66 66 Assault with intent to Rob. The old maxim of the criminal law, that voluntas reputabitur pro facto (a) continued to prevail in the reign of Henry the Fourth; and it was then agreed, that if a man was indicted that il gisoit deprædando, it was felony (b): but in the ninth year of Edward the Fourth (c), a different doctrine began to be held; and men were no longer punished for crimes which they only meditated, but had not actually committed (d); and since that time the bare intention to commit a felony has been considered as a misdemeanor only, and punishable by fine, imprisonment, &c. (e). (a) 25 Edw. 3. (c) Year-book, But by stat. 43 Geo. 3. c. 58. it is enacted, "If any person 68. "shall shoot at, or present, point, or level any loaded fire-arms, " and attempt to discharge the same at or against any person, or stab, or cut any person with intent to rob, the same is de"clared felony, without benefit of clergy." And by stat. 4 Geo. 4. c. 54. s. it is enacted, "If any person shall maliciously assault any other person with intent "to rob such other person, or shall by menaces, or by force, mali"ciously demand money, security for money, goods, or chattels, wares, or merchandize, of any other person, with intent to rob "such other person; or shall maliciously threaten to accuse any 66 66 other of the act. See note 2, (title Maiming,) for decisions under this act. The case of Peter Perfait, who accorded 66 "other person of any crime punishable by law, with death, trans"portation, pillory, or of any infamous crime, with a view or intent "to extort, gain money, security for money, goods, or chattels, wares or merchandize from the person so threatened; or shall "procure, counsel, aid or abet the commission of the said offences, "or of any of them, every person so offending, being thereof lawfully convicted, shall be adjudged guilty of felony, and shall be "liable, at the discretion of the court, to be transported beyond "the seas for life, or for such term not less than seven years, as "the court shall adjudge, or to be imprisoned and kept to hard "labour in the common gaol or house of correction for any term "not exceeding seven years.' Before the passing of this statute it was a felony by stat. 7 Geo. 2. c. 22. to assault another with any offensive weapon with intent to rob. But the latter statute has not only extended the law by making it a felony to assault generally with such intent, but has also extended the law by embracing the cases of those who made it a practice to extort money by working upon the fears of others in threatening to accuse them of disgraceful offences, and to the aiders and abettors of such offences. It is conceived, upon the authority of R. v. Remnant, 5 T. R. 169. that it would be necessary, in an indictment on this statute, to charge the offender with a felonious intent to rob, and not merely to "steal, take, and carry away," as that description would not reach the definition of robbery, but merely of simple larceny. As to what shall constitute a demand, it has been ruled on the former statute, 7 Geo. 2. the words of which were the same + Sect. 3. FIRST, That to complete the crime, not only the assault, as by holding a pistol towards a coachman on his box and telling him to stop, but a demand of the money or other property must also actually be made. But in this case it was said by Mr. Justice Chapple, who tried the prisoner, that the demand need not be made in express terms, for that a dumb man may make a demand, as if he stop a person on the highway, and put his hat into the coach with a pistol in his hand. Cases Cro. Law, 19. Vide Haward's Case, O. B. 1783. No. 538. Thomas's Case, 1784. Cases Sect. 4. SECONDLY, That both the assault and the demand O. B. July Sess. must be made upon the person intended to be robbed; for the words of the act are, 66 That if any person shall assault, &c. and "demand the money, &c. of any other person, with intent to rob, "or commit robbery upon, such person." Cro. Law, 271. Assaulting any person in the streets, &c. to tear their clothes, &c. felony. Assault with intent to destroy Garments. By 6 Geo. 1. c. 23. s. 11. it is enacted, "That if any person or persons shall, at any time or times, wilfully and maliciously "assault any person or persons in the public streets or highways, "with an intent to tear, spoil, cut, burn, or deface, and shall tear, spoil, cut, burn, or deface the garments or clothes of such person or persons, that then all and every person and persons so "offending, being thereof lawfully convicted, shall be, and be ad"judged to be, guilty of felony; and every such felon and felons "shall be subject and liable to the like pains and penalties as in 66 " case case of felony; and the courts by and before whom he, she, or "they shall be tried, shall have full power and authority of trans“porting such felons for the space of seven years, upon the like "terms and conditions as are given, directed, or enacted by the 66 stat. of 4 Geo. 1. c. 11." on the Penal + Sect. 2. It is said, that as this statute inflicts the punishment Sir John's Fielonly when the offence is committed" in the public streets or high- ding's Treatise "ways," without adding, " or elsewhere," an assault and defacing Laws relating of a garment in the play-house or other place, not a street or to the Metropohighway, is not within the act. lis, page 317. The case of Rhenwick Sect. 3. It seems also to be clear, that the assault must be made with a wilful and malicious intention "to tear, spoil, cut, “burn, or deface" the garments or clothes of the person assault- Cro. Law, 430. ed; and therefore, if the wilful and malicious intention be rather to injure the person than to deface the garments, although in carrying such intention into execution, the garments are cut with such an instrument, and in such a way, as plainly to shew that the intention to injure the person could not be accomplished without cutting or defacing the garment, yet this is not an offence within the statute; for the destruction of the garments must be the primary intention of the offender, and not the consequence of his intention to injure the person. + Sect. 4. It is also decided, that the assault on the person and Case of R. the tearing, spoiling, cutting, burning, or defacing the garment, C. L. 340. Williams, Cases must be at one and the same time, and must be so charged in the indictment; and therefore if an indictment state, "that A. B. "on the 18th of January made an assault on C. D. &c. with in"tent to tear, &c. the garments of the said C. D. and that the "said A. B. on the said 18th of January did tear, &c. the gar"ments of the said C. D." without saying, "that he then and "there, &c. did tear the garments of the said C. D. &c.” the indictment is bad; for, for any thing that appears to the contrary in the indictment, the assault might have been made on one part of the day, and the tearing of the clothes on another part of the day. (4) Assaulting Master Woolcomber, for not complying with illegal By statute 12 Geo. 1. c. 34. s. 6. it is enacted, "If any person or persons shall, after 24th of June, 1726, assault or abuse ' any master woolcomber, or master weaver, or other person "concerned in any of the woollen manufactures of this kingdom, "whereby any such master or other person shall receive any bodily "hurt, for not complying with, or not conforming or not submit"ting to any such (viz. illegal bye-laws made by journeymen in their "clubs or assemblies, sect.1.) illegal by-law, ordinances, rules, or or"ders aforesaid; or if any person or persons shall write or cause to (4) This case was ultimately decided upon the latter objection to the indictment; but the majority of the judges thought that the conviction was wrong on the first ground, namely that the primary intention must be to destroy the garments: this is directly at variance with the principle upon which "be the case of Coke and Woodburn was decided, (sec ante, note 2, under Mayhem,) where it was held that a man must be taken to intend all the subordinate means to effect his primary intent. E. P. C. vol. 1. p. 424.400. |