CHAP. II. I. ABSOLUTE, &c. afterwards die without any fault of the mother, yet if she attempt by the above mentioned means to conceal the birth, 1. PERS. SEC. Such suspicious concealment of itself constitutes a crime. (b) In a case of that nature, and where there is no ground for imputing the death of the child to the mother, the indictment should merely be for misdemeanor, and not, as too frequently the practice, with a view to the allowance of costs for murder, (c) and in another case it was laid down that on all inquests held on the bodies of dead children, it was the bounden duty of the coroner to tell the jury, in all cases where there was not the most clear and decisive proof that the child was born alive, that they ought never to think of returning a verdict of wilful murder against the mother. (d) 6. Threats to kill. 6. Threats against life, without any actual attempt, and whether written or verbal, are also peculiarly punishable. (e) And Challenges and challenges to fight duels, and provocations with intent to infights. duce another party to send a challenge, may be prosecuted as misdemeanors by indictment, or by motion to the Court of King's Bench for a criminal information, where the case is fit for the interference of that higher tribunal. (ƒ) And all parties concerned in or countenancing a prize fight, which may end in homicide, are liable to imprisonment and indictment, and it is the duty of magistrates and all others to prevent their taking place. (g) (b) 9 Geo. 4, c. 31, s. 14. The mother's preparing clothes, &c. affords presumption against concealment, 4 Car. & P. 366. (c) Per Bolland, B. on Northern Circuit, A.D. 1832. (d) Anne Bayley's case, at Stafford, 1828, before Vaughan, B., Carr. Crim. L. 243. (e) 4 Geo. 4, c. 54, s. 3, enacts, that if any person shall knowingly and willingly send or deliver any letter or writing with or without any name or signature subscribed thereto, or with a fictitious name or signature, threatening to kill or murder any of his Majesty's subjects, or to burn or destroy his or their houses, outhouses, barns, stacks of corn, grain, hay, or straw, or shall procure, counsel, aid, or abet the commission of the said offences, or any of them, or shall forcibly rescue any person being lawfully in custody of any officer or other person for any of the said offences, 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 only, or to be imprisoned and kept to hard labour in the common gaol or house of correction for any term not exceeding seven years. See 4 Car. & P. 562. (f) 1 Burr. R. 316; 3 East, 581; 6 East, 464, 471; 2 Bar. & Ald. 462. (g) Rex v. Perkins and others, 4 Car. & P. 557. It was there held that all persons who are present at a prize fight, and who have gone thither with the purpose of seeing the persons strike each other, are principals in the breach of the peace, and indictable for an assault as well as the actual combatants, and that it is not at all material which of the combatants struck the first blow and see Rer v. Bellingham, 1 M. & R. M. C. 127, where Bayley, J. said, "My advice to magistrates and constables is, in cases where they have information of a fight, to secure the combatants before hand, and take them to a magistrate, who ought to compel them to enter into securities to keep the peace till the next assizes or sessions, and if they will not, to commit them to prison. In this way the mischief would be prevented, and the fights be put a stop to. The circumstance of an injury having been committed in an amicable or agreed fight may destroy any civil remedy, Com. Dig. Pleader, 3 M. 28; but would constitute no answer to a criminal proceeding for breach of the peace. CHAP. II. I. ABSOLUTE, &c. I. PERS. SEC. 1. An assault, what. Secondly and thirdly. Injuries to the limbs or body are principally assaults, batteries, bruises and contusions, wounding, or mayhems. 1st. An assault is an attempt or offer, accompanied by a degree of violence, to commit some bodily harm, by any Secondly and thirdly. LIMBS means, within a distance, and calculated to produce the end, if and BODY. Incarried into execution, and to alarm the other party, and put him juries to, remedies and punishin well grounded apprehension of immediately ensuing actual in- ments. jury. (h) Thus, levelling a gun at another within a distance from which, supposing it to have been loaded, the contents might wound, is an assault; (¿) or riding after a person and obliging him to run away into a garden to avoid being beaten, is an assault; (k) and if a master or medical attendant take indecent liberties with a scholar or patient, without her consent, or by misrepresentation, although she do not resist, he may be punished as for an assault; (7) and it is an assault in parish officers to cut off the hair of a pauper in the poor house against her will. (m) But abusive words alone however violent, cannot constitute an assault, and, indeed, they may sometimes so explain the aggressor's intent as to prevent an act primâ facie an assault from amounting to such an injury; as where a man, during assize time, in a threatening posture, half drew his sword from its scabbard, and said, "if it were not assize time I would run you through the body:" this was held to be no assault, the words explaining that the party did not intend to inflict any immediate injury. (n) bruises, and 2. A battery is any unlawful touching the person of another 2. Batteries, by the aggressor himself, or by any other substance put or con- contusions, tinued in motion by him, as by throwing about a squib in a public what. market-place, which put out the party's eye; (o) and the striking a horse upon which a person is riding, and by which he was in consequence thrown, is considered a battery upon him. (p) But it has been supposed that taking a hat off the head of another is not a battery; (q) and a battery must be either wilfully committed, or proceed from want of due care, for otherwise it is damnum absque injuria, and the party aggrieved is without remedy; as if a horse run away without any fault of the rider, and go over another person, no action lies, because the injury is considered as proceeding from the horse, and not from the rider. (r) But it would be other (h) 3 Bla. C. 120; Com. Dig. Battery, C.; Bac. Ab. Assault and Battery, A.; Burn's J. Assault; 3 Car. & P. 349. (i) Id. ibid. Com. Dig. Battery, C. (k) Alerton v. Shoppee, 3 Car. & P. 373. (1) Rex v. Nichol, R. & R. C. C. 130; Rer v. Rosinski, R. & M. C. C. 19; Rex v. Dawson, 3 Stark. R. 62; and Rex v. Evans, Id. 35. (m) Forde v. Skinner, 4 Car. & P. 238. (n) 1 Mod. 3; Bul. N. P. 15; Vin. Ab. (0) 3 Bla. C. 120; 1 Saund. 29, b. n. 1, (r) Hob. 134; Plowd. 19; 1 Stra. 596; CHAP. II. I. ABSOLUTE, &c. I. PERS. SEC. 3. Wounding and mayhem, what. 4. Special assaults. Prevention of such injuries. Compensations and punish ments. wise if he were riding furiously, or otherwise in fault. (s) Bruises and contusions are where the skin is not broken.(t) 3. A wounding consists in giving another a cut, or even a scratch, opening the flesh. (t) A mayhem is defined to be the deprivation of a member proper for defence in fight, and which are not only an arm, leg, finger, eye, and a foretooth, but also some others; but not, as it has been said, a jaw tooth, or the ear, or a nose, because they have been supposed to be of no use in fighting. (u) One remarkable circumstance peculiar to an action for a mayhem is, that the court may, on view of the wound, increase the damages awarded by the jury. (v) 4. Some assaults of a more special nature, as upon persons standing in particular situations, as clergymen, magistrates, officers, &c., are particularly provided against. (x) All these may be prevented by the party attacked, or his servant or relation, even by forcible self-defence, but without using a dangerous weapon, unless life be in peril: (y) but a stranger or third person, not being a relative, must not proceed ex parte, but merely interfere, (molliter manus,) to preserve the peace, and separate the parties, and not defend the person about to be beat. (2) So, after threat of such an injury, sureties of the peace may be obtained by application to a justice of the peace. (a) Compensation, strictly so termed, for batteries, wounds, and mayhems, can only be obtained by action in the superior courts, for the county court has no jurisdiction over trespasses vi et armis. (b) But conviction in a fine of 5%., to be paid towards the county rate, may be obtained upon summary information before justices, (c) and in each case the wrong-doer may be indicted at common law for the breach of the peace. In the instance of the special assaults before alluded to, there are express punishments afforded by particular statutes. (d) Assaults, with intent to commit certain felonies, as murder, or to maim, or to commit an unnatural crime, or to rob, are specially punishable. (e) So, furious driving, (ƒ) and the setting spring guns or other dangerous engines, excepting at night in a dwelling-house, are (s) Id. ibid. ; 8 Moore, 63; 1 Bing. 213, S. C. (t) Ante, 34, note (g). (u) 3 Bla. C. 121. But note, in exami- (v) 1 Wils. 5; S Salk. 115. (y) 2 Rol. Ab. 546. (*) 2 Stra. 954. (a) Post, c.viii. ; Burn's J.Surety, Peace. (b) Vin. Ab. County Court, 101. (c) 9 Geo. 4, c. 31, s. 27, 28, 29, 33, 34, 35. (d) 9 Geo. 4, c. 31, s. 23, 24, 25, 26, 29. Assaults on Park-keepers, 7 & 8 Geo. 4, c. 29, s. 29; on Custom House Officers, 6 Geo. 4, c. 108, s. 56, 57,59. (e) 9 Geo. 4, c. 31, s. 11, 12, 15, 18, 25. Attempt to rob, 7 & 8 Geo. 4, c. 29, s. 6. (ƒ) 1 Geo. 4, c. 4. CHAP. II. I, ABSOLUTE, &c. respectively indictable as a misdemeanor, on account of the danger, although no actual injury ensue; (g) and it is a general rule that whenever any act is declared to be a misdemeanor by I. PERS. SEC. the public criminal law, either by the common law or by statute, any particular individual having sustained special and particular damage may have his private remedy by action to recover compensation for the damage he has actually sustained ; (h) although, in cases of felony, we have seen that the civil remedy is in general suspended until after the trial of the supposed offender. (i) 5. Mere menaces and threats of bodily harm, or to burn a house, which may occasion great personal injury, may also be prevented by the like means, as in the case of actual assault. (k) And compensation may be recovered by action, if the menace occasion any actual damage, as the deterring servants from performing their master's work; (7) and some menaces are indictable at common law. (m) A threat of murder or of burning a house, are highly penal by express enactments. (n) 5. Other menaces, and threats of bodily harm. 6. A rape may be prevented even by killing the assailant. (0) 6. Rapes and It is an offence punishable with death, (p) and it is no longer attempts. essential to prove all the particulars formerly necessary to be established, it having been enacted that proof of penetration without more shall suffice; (9) and though it has been decided that if that be proved, yet actual proof of the negative of the other circumstance, which was formerly considered the more complete part of the offence, will entitle the offender to an acquittal; (r) it has been suggested that that doctrine is questionable.(s) At all events, however, if penetration cannot be proved, then the indictment should be for a misdemeanor, being the assault with intent to commit the capital offence. It has been held by the majority of the judges that the offence of rape is not committed if a party have carnal knowledge of a married woman without her consent, but under her supposition that the offender was her husband, because there was an absence of violence, terror, and alarm, which constitute part of the capital offence. (t) (g) 7 & 8Geo. 4, c. 18, s. 1; 4 Bing. 643. (k) Ante, 38, (1)2 Lutw. 1428; Co. Lit. 161. (0) 1 Hale, 485; 2 Bos. & Pul. 260. (q) 9 Geo. 4, c. 31, s. 16, 18; 4 Car. & P. 249; Burn's J. Rape. What penetration sufficient, see Russen's case, 1 East, P.C. 438; 1 Russell, 803. In that case it was beld that the least degree of penetration is sufficient, though not attended with the de- Rex v. Jackson, R. & R. C. C. 487. CHAP. II. I. ABSOLUTE, &c. I. PERS. SEC. ledge of female 7. Carnal know children. 8. Indecent exposures of per son. 9. Abduction of fant children. 7. If any person shall unlawfully and carnally know and abuse a girl under the age of ten years, he is punishable capitally as a felon; but if the girl be above the age of ten and under twelve years, the offence is only a misdemeanor, subjecting the offender to imprisonment, with or without hard labour, for such term as the court shall award; and in both these cases proof of penetration, however small, is sufficient to establish the offence. (s) If there be no evidence of the latter, then the offender may be indicted for the assault with intent to abuse and carnally know, and should the jury find that the prisoner only assaulted the child with intent to abuse her, and negative the intention charged carnally to know her, prisoner may be convicted and sentenced to twelve months imprisonment, the averment of intention being divisible. (t) If a master or medical attendant take indecent liberties with his scholar or patient, he may be convicted as for an assault, though not with intent to commit a rape or carnally know. (u) We may here observe that the specified ages in these cases are completed at the first instant of the day before, and not upon, the anniversary of the day of the birth. (v) 8. The wilful exposure of the naked person in a public situation, even for bathing, and with or without any criminal intent towards females, is punishable as a misdemeanor; (w) and where a medical man with a similar intent persuaded a female patient to strip, under pretence that the examination was essential to enable him to prescribe, he was convicted upon an indictment charging the special assault. (z) 9. Other punishable injuries to the person, are the forcible females and in- abduction of any female possessed of certain property, for the sake of her fortune, with intent to marry or defile her, and which is felony, punishable with transportation or imprisonment not exceeding four years. (y) So the unlawful taking away any unmarried girl under the age of sixteen out of the possession of her father or mother, or other person having the lawful care of her, is a misdemeanor, punishable with fine or imprisonment, or both, as the court shall award; (2) and the maliciously by force or fraud leading or taking away, or decoying or enticing away, or detaining any child, male or female, (s) 9 Geo. 4, c. 31, s. 17, 18; Rex v. Russen, 1 East, P. C. 438; 1 Russ. 803; ante, 39, tit. Rape. (1) Rex v. Dawson, 3 Rush. R. 62; and Rex v. Evans, id. 35. (u) Rex v. Nicholl, R. & R. C. C. 130; Rex v. Rosinski, R. & M. C. C. 19. (v) Post, c. ix. (w) 2 Campb. 89; and see Vagrant Act, 5 Geo. 4, c. 83, s. 4. (x) Rex v. Rosinski, R. & M. C. C. 19. |