Aggravated Assaults].-Assaults in some cases are aggravated, from the places in which they are committed, as in church or churchyard, and Courts of Justice. Assaults aggravated by the mere degree of violence do not differ from common assaults, unless they amount to some felonious act, as stabbing, wounding, or maiming. (See Dickenson, Q. Sessions, 261).

S. 9 Geo. IV., c. 31, s. 27. (v) [Two Justices].—(1) Common Assault. -Any person unlawfully assaulting or beating any other person.

[MEM. The party aggrieved must make the complaint, (s. 27), though the oath may be by a credible witness, (s. 33); and the Justices have no jurisdiction to convict in a penalty against the will of the complainant, where he prays that the defendant may be bound over to keep the peace. (R. v. Deny, 20 L. J. M. C., 189). This would not, however, seem to apply to assaults upon women and children (under 18 Vic., No. 9, Offence 2), as the proceedings in those cases may be taken "either upon the complaint of the party aggrieved or otherwise." (Ib., s. 1).]

P. Fine not exc., together with the costs of conviction, £5; (w) in default, (either immediately, or within such time as Justices shall appoint), impr. not exc. 2 cal. m., unless sooner paid. (S. 27). (x) and (y)

(v) By s. 29 of 9 G. IV., c. 31, it is provided "That nothing herein contained shall authorize any Justice of the Peace to hear and determine any case of assault and battery in which any question shall arise as to the title to any lands, tenements, or hereditaments, or any interest therein or accruing therefrom, or as to any bankruptcy or insolvency, or any execution under the process of any Court of Justice;" but there must be some colour of title, the bare assertion of right being insufficient to oust the jurisdiction. (See Reg. v. Dodson, 9 Ad. & E., 704). And if the party used unnecessary violence in asserting it, the question of title should entirely be left out of the Justices' consideration, and the party convicted of the assault; and they have a right to judge whether the question of title really arises in the case they are investigating. If the Justices shall find the assault or battery complained of to have been accompanied by any attempt to commit felony, or that the same is, from any other circumstance, a fit subject for prosecution by indictment, they shall abstain from any adjudication thereupon, and shall deal with the case in all respects in the same manner as they would have done before the passing of this Act. (S. 29). Semble, the Justices are the proper judges as to whether the assault was accompanied with an attempt to commit felony. (Anon., 1 B. & Ad., 384).

(w) By 19 Vic., No. 24, s. 22 (Police Act), in all cases of summary conviction for assault, it shall be in the discretion of the Justices before whom any such conviction shall take place, either to inflict the several fines in the several Acts specifying the offence mentioned, or to imprison the person so convicted for any term not exceeding the maximum terms respectively mentioned in the said Acts. (x) Certificate of Dismissal where Assault justified or trifling].-If the offence be not proved, or be justified, or be so trifling as not to merit any punishment, and the Justices dismiss the complaint, a certificate of dismissal is forthwith to be delivered to the defendant, (s. 27), which certificate, or payment of the penalty, will bar all other proceedings. (S. 28). It must be applied for immediately, or before the Justices have separated, (R. v. Robinson, 12 Ad. & E., 672; but see Hancock v. Soames, infra), and set forth ground of dismissal. (Skuse v. Davis, 10 Ad. & E., 635). (See Forms, Part II., post). Where a party, on being summoned for an assault, appeared and pleaded not guilty," and the prosecutor then withdrew his complaint, and the defendant was accordingly discharged, it was held that this was a hearing and dismissal which entitled the defendant to a certificate that the charge had been dismissed as not proved. (Tunnicliffe v. Tedd, 17 L. J. M. C.,

The fines under this Act are to be given to the Benevolent Asylum in the district, and, if there be not any such, to the Benevolent Asylum in Sydney. See 7 & 8 G. IV., c. 31, s. 27; 11 Vic., No. 29, and 2 Vic, No. 23; and 66 see Fines," post.

S. 18 Vic., No. 9, s. 1. [Two Justices].—(2) Aggravated Assault upon a Female, &c.-Any person assaulting any female whatever, or any male child whose age shall not, in the opinion of the Justices, exceed 14 years, if the assault is of such an aggravated nature that it cannot in their opinion be sufficiently punished under the provisions of the statute 9 G. IV., c. 31. See supra, p. 24.

[MEM.-A conviction under this Act will "be a bar to all future proceedings, civil or criminal, for or in respect of the same assault." (18 Vic., No. 9, s. 1).]

P. Impr., with or without h. 1., for not exc. 6 cal. m., or fine not exc. (with costs) £20, and, in default of payment, impr., with or without h. 1., for not exc. 6 cal. m., unless sooner paid: And, if the Justices think fit, to be bound to keep the peace and be of good behaviour for not exc. 6 cal. m. from the expiration of sentence, without surety. (z)

As to assaults on constables, see, post, "Police," (19 Vic., No. 24, s. 18; 2 Vic., No. 2, s. 8).

F. 1 Vic., c. 85, s. 4. (A) Bail disc.-(1) Shooting at any person,

67; 5 C. B., 533). This may be done, it is conceived, when the complainant does not appear. By a very recent case, (Hancock v. Soames, 28 L. J. M. C., 196), it is decided that the granting a certificate under 27 s. of 9 G. IV., c. 31, is a ministerial, and not a judicial act. If the Magistrate finds either of the alternatives stated in s. 27, he is bound to dismiss the complaint, and having dismissed the complaint, he is bound to grant a certificate without any application for it having been made; and (semble) he may grant it at any time after the complaint has been dismissed, even although in the absence of the plaintiff; (and see Costar v. Hetherington, Ib., p. 198).

(Y) Penalty, several, on each Offender.—Sureties].-The penalty in cases of assault can be imposed on each offender, (Morgan v. Brown, 4 A. & E., 515), where more than one; but the Justices cannot order them to enter into any recognizance, either with or without sureties, to keep the peace for any given period, in addition to the penalty, for that would be a superadded punishment for the assault, which they cannot impose, their power being exhausted by the infliction of the fine. (J. Stone's Practice, 304).

(z) Recognizance].-A doubt has been entertained whether the Justices can do more, under this section, than call upon the offender to enter into his own recognizances to keep the peace, and this doubt apparently arises from the fact, that in some statutes it is expressly said that, under certain circumstances, a person may be required to find sureties, (see, e. g., 17 Vic., No. 31, ss. 22, 23); but it is apprehended that the binding mentioned in the statute must mean an effectual binding. Now, the only way in which a person can be bound in his own recognizance is, by entering into a (supposed) bond to pay a certain sum of money, the condition of such bond being the performance of a certain act, (e. g., keeping the peace and being of good behaviour for six months). If the condition is not kept, the bond is forfeited, and the penalty may be enforced by distress on the goods and chattels of the obligor. In the case, however, of a person who has avowedly no goods or chattels, (as, e. g., a pauper or a married woman), such a binding by personal recognizances would be wholly ineffectual and absurd. For the proceedings on recognizance, see "Recognizance," post, and s. 2 of 18 Vic., No. 9.

(A) By s. 5 of 16 Vic., No. 17, if, upon the trial of an indictment for these offences, the jury are not satisfied that the defendant is guilty of the felony charged,

-attempting to discharge loaded arms, or stabbing, cutting, or wounding any person,-with intent to maim, disfigure, disable, or do some grievous bodily harm,—or to prevent the lawful apprehension or detainer of any person.

P. Tr. life-15 yrs.; or impr. not exc. 3 yrs., h. 1. and s. c.; or (if male) h. 1. on roads 15-7 yrs.; (if female), impr. 7-3 yrs., h. or 1. I.

and s. c.

M. 16 Vic., No. 17, s. 4. Bail disc.-(2) Unlawfully and maliciously inflicting upon any other person, either with or without any weapon or instrument, any grievous bodily harm, or unlawfully and maliciously cutting, stabbing, or wounding any other person.

P. Impr., with or without h. 1., not exc. 3 yrs.

F. 1 Vic., c. 85, s. 5. Bail disc.-(3) Sending, &c., explosive substances, &c., or throwing corrosive fluid, &c., upon any person,-with intent to burn, maim, &c. (See 9 & 10 Vic., c. 25).

P. Tr. life-15 yrs.; or impr. not exc. 3 yrs., h. 1. and s. c.; or (if male) h. 1. on roads 15-7 yrs.; (if female), impr. 7—3 yrs., h. or 1. Ì.,

and s. c.

F. 1 Vic., c. 89, s. 7. Bail disc.-(4) Impeding persons endeavouring to escape from wrecks.

P. The same.

F. 1 Vic., c. 87, s. 6. Bail disc.-(5) Assaulting any person with intent to rob. (If the offender is armed, or with one or more persons, &c., see offence under s. 3, post, "Larceny").

P. Impr. not exc. 3 yrs., h. 1. and s. c.

M. 11 Vic., No. 30, s. 4.

Bail disc.-(6) Unlawfully and indecently assaulting any female child under the age of 12 yrs., whether with the child's consent or not.

P. H. 1. on roads not exc. 3 yrs.

F. Ib., s. 5. Bail disc.-Second offence (B) is felony.

P. Tr. not exc. 10 yrs., or h. 1. on roads 10-5 yrs., first 3 yrs. in irons, at discretion. (11 Vic., No. 34).

they may find him guilty of the misdemeanor of unlawfully cutting, stabbing, or wounding, and he would be punished with impr., with or without h. 1., not exc. 3 years.

(B) By s. 6 of said Act, a certificate containing the substance and effect only (omitting the formal part) of the indictment or information, and of the conviction for such indecent assault, purporting to be signed by the clerk or other officer having the custody of the records of the Court where the offender was so convicted, shall, on proof of the identity of the person of the offender, be sufficient evidence of the conviction, without proof of the signature, or of the official character of the person appearing to have signed the same. Jury are not to inquire concerning such previous conviction until after they have inquired concerning such felony, and shall have found such person guilty of the same; and whenever, in such indictment or information, such previous conviction shall be stated, the reading of such statement to the jury, as part of the indictment or information, shall be deferred until after such finding as aforesaid: Provided that if, upon the trial for such felony as aforesaid, such person shall offer evidence of his good character, the prosecutor, in answer thereto, may give evidence of such previous conviction before such verdict of guilty shall have been returned; and the jury shall then inquire concerning such previous conviction at the same time that they inquire concerning such felony. (S. 6).

M. At Com. Law. Bail disc-(7) Common assault and battery. P. Fine and impr., with h. 1., if actual bodily harm occasioned, (16 Vic., No. 18, s. 28), or both. (See Arch. Cr. Pr., 523).

N.B.-The Court will not pass judgment for an assault during the pendency of an action for the same assault. (R. v. Mahon, 4 A. & E., 575). M. 9 Geo. IV., c. 31, s. 24. Bail comp.-(8) Assaulting and striking or wounding any Magistrate, officer, or other person, in preserving a

wreck.

P. Tr. 7 yrs., or impr., with or without h. 1., for such term as Court shall award; or (if male) 5-3 yrs., with h. 1. on roads; (if female), impr. 3-1 yr., with h. or 1. 1. and s. c.

M. Ib., s. 25.

Bail disc.-(9) Assault with intent to commit a felony [or a rape, or unnatural offence, or an indecent assault, (16 Vic., No. 18, s. 28).]

P. Impr., with or without h. 1., not exc. 2 yrs.; also, fine and sureties to keep the peace.

M. 11 Vic., No. 30, s. 1. Bail disc.—(10) Assault with intent to commit a rape, or with intent unlawfully and carnally to know and abuse any girl under the age of 10 years.

P. Tr. 15-7 yrs.; or h. 1. on roads 10—5 yrs, of which the first three may be in irons, at discretion.

M. 9 Geo. IV., c. 31, s. 25. Bail disc.-(11) Assault on peace officer or revenue officer on duty, or any person acting in his aid.

P. Impr. with h. 1. not exc. 2 yrs.; also, fine and sureties to keep the peace.

M. Ib. Bail disc.-(12) Assault on any person, with intent to resist or prevent the lawful apprehension or detainer of the person assaulting, &c. P. The same.

M. Ib. Bail disc.-(13) Assault in pursuance of any conspiracy to raise the rate of wages.

P. The same.

M. 16 Vic., No. 17, s. 11. Bail disc.-(14) Any person liable to be apprehended under 16 Vic., No. 17, assaulting or offering any violence to any person by law authorized to apprehend and detain him, or to any person acting in his aid or assistance.

P. Impr., with or without h. 1., not exc. 3 yrs. (c)

ATTEMPTS TO COMMIT CRIMES. (d)

An attempt to commit a felony is a misdemeanor, and every attempt (not every intention) to commit a misdemeanor is a misdemeanor, (R. v.

(c) Apprehension of offenders under 16 Vic,, No. 17]. By s. 9, any person whatever may apprehend any person found committing any offence against the Act, and convey him, or deliver him to some constable in order to his being conveyed, before a Justice. And see s. 10, supra, p. 19.

(D) By 16 Vic., No. 18, s. 9, If, on the trial of a person charged with any felony or misdemeanor, it shall appear to the jury, upon the evidence, that the defendant did not complete the offence charged, he is not to be acquitted, but the jury may find him guilty of the attempt, and he is liable to be punished as if convicted upon an information for attempting to commit the particular felony or misdemeanor charged in the said indictment.

Higgins, 2 East., 8); and an attempt to commit a statutable misdemeanor is as much a misdemeanor as an attempt to commit a common law misdemeanor. (Schofield's case, Russ. & R., C. C. 107).

At Common Law it is a misdemeanor to incite another to the commission of any indictable offence, though the solicitation does not succeed. (R. v. Higgins, 2 East., 5).

By 3 Geo. IV., c. 114, the Court may sentence a person having attempted to commit a felony to "imprisonment with hard labour, for any term not exceeding the term for which such Court may now imprison for such offences, either in addition to or in lieu of any other punishment which may be inflicted on any such offenders by any law in force before this Act."

M. at Com. Law. Bail disc.—(1) Attempt to commit felony. (1 B. J., 314).

P. Fine or impr., or both.

M. at Com. Law. Bail comp.-(2) Attempt to have earnal knowledge of a girl under 12. (1 B. J., 314).

P. The same, and h. 1. (16 Vic., No. 18, s. 28).

M. 11 Vic., No. 30, s. 3. Bail disc.-(3) Unlawfully and carnally knowing and abusing any girl above the age of 10 years, and under the age of 12 years.

P. Tr. 10-5 yrs., or 10—5 yrs. h. 1. on roads, and, if Court think fit, in irons for first 3 yrs.

N B.-The jury may acquit of the offence, and convict of the attempt, and Court may sentence offender to h. l., with or without impr., (sic!) for not exc. 3 yrs. (S. 3).

M. at Com. Law. Bail comp.-(4) Attempt to commit misdemeanor, whether statutable or at Common Law. (R. v. Rodrick, 7 C. & R., 795). P. Fine or impr., or both.

ATTEMPTS TO MURDER, &c.

F. 1 Vic., c. 85, s. 2. Bail disc.-(1) Administering poison or other destructive thing, or stabbing, cutting, or wounding, or causing bodily injury, with intent to commit murder.

P. Death.

F. Id., s. 3. Bail disc.-(2) Attempting to administer poison, &c., or shooting at, &c., or attempting to drown, suffocate, or strangle, with intent to murder.

P. Tr. life-15 yrs. ; or impr. not exc. 3 yrs., h. 1. and s. c.; or (if male) 15-7 yrs. h. 1. on roads, of which the Court may direct the first 3 yrs. in irons; (if female), 7—3 yrs. impr., with h. or 1. 1. and s. c.

F. 9 & 10 Vic., c. 25, (adopted by 14 Vic, No. 16), ss. 2, 3. 4, 6. Bail disc.-(3) By the explosion of gunpowder or other explosive substances, destroying any building with intent to murder, &c., or disabling, or doing grievous bodily harm.

P. The same, and w. if a male under 18. (S. 9).