neglect of duty and disobedience of the orders of justices, or they may be punished summarily by 33 Geo. 3. c. 55. (k) But a person cannot be indicted for selling ale without a license, because it was no offence at common law, and because an exclusive and specific punishment for so doing is directed by statute.() 11. Conspiracies-which will be the subject of particular enquiry in § 8. Among the cases on which doubts have been entertained, Doubtful cases. and which have been doubtful only because they were those of offences not circumstantially described by any statute, but as it were, inferentially deduced from general positions of common law, have been the following, among a great variety of others. It has been made a doubt, whether a man, in the prosecution of a legal calling, as, ex. gr. distributing hand-bills, (bills of an innocent description,) on a causeway, but by means of which passengers were to a certain degree obstructed and impeded, committed an indictable offence. (m) So, whether a stage-coachman, or driver of a waggon, plying in the way of his lawful calling, for passengers or loading, but thereby to some degree obstructing a public highway? But it has been recently holden, that any unauthorized obstruction of a highway, to the annoyance of the subject; as well as any unnecessary exposure on a highway of any object that has a direct tendency to injure health, life, liberty, or property, is an indictable offence; (n) and further, that in no case is it necessary to prove actual injury from any such nuisance, for that of whatever kind it be, if in its nature and circumstances it be sufficient to produce injury to the subject generally, it is indictable. (0) Frauds committed in the way of trade have also frequently given occasion to doubts respecting their liability to the remedy by indictment. It seems to have been decided that the selling short measure, of any commodity, is not an indictable offence, being a mere imposition on an (k) The King v. Boyell, 1 Burr. R. 832. The King v. Douse, 1 Ld. Raym. 672; the King v. Storr, 3 Burr. R. 1699. (m) The King v. Sermon, 1 Burr. R. 516; the King v. Russel, 6 East, R. 427. (n) The King v. Cross, 3 Campb. 227; the King v. Vantandillo, 4 M. and S. 73. (0) The King v. Wheatley, 2 Leach, 818; the King v. Osborne, 3 Burr. R. 1697. individual; (p) but selling generally by short measure, is an indictable offence, because that is calculated to defraud numbers. (q) It has also been decided, that the exposing to sale, and selling, wrought gold under the sterling alloy, as and for gold of the true standard weight, (though indictable against goldsmiths under the statute,) is not an indictable offence at common law in the case of a common person, the sale not being by any false weight or measure. (r) It was said that a miller keeping a common mill, and either changing corn brought to be ground, or substituting the flour of corn of other kind, or inferior quality, was an offence to be remedied by private action, and not by a criminal indictment. (s) And in a recent case of an indictment against a miller for receiving good barley to grind at his mill, and delivering a mixture of oat and barley meal, which was musty and unwholesome, it was said by Lord Ellenborough, C. J. in giving judgment, that not being laid in the indictment to be for the food of man, (which could not make it injurious to the public, and something more than a mere imposition on the individual,) it was not an indictable offence. He also observed, that had the mill in question been laid to be a soke mill, at which the inhabitants of the vicinage were bound to resort, and that the miller, abusing the confidence of his situation, had committed this offence, then indeed it might perhaps have been an indictable offence; but that here it appeared to be merely an individual fraud in the common way, and therefore not an indictable offence. (t) Frauds of these kinds, in the way of trade also, where no artifice is used but what ordinary caution might provide against, present many doubtful cases: thus, the mere offer of a cheque on a banker, and pretending it to be a good one, when in fact the person offering it had no money in the banker's hands, was long holden to be no fraud indictable at common law, but has lately been decided otherwise under the statute. (u). A mere false assertion, without some artful recommendation, does not constitute such a fraud. (v) The King v. Dunnage, 2 Burr. R. 1131. 11 Leach, 818; Black. R. 273. The King v. Bowen, East. P. C. 820; Cowp. R. 323. The King v. Dunnage, 2 Burr. R. 1131; the King v. Channel, Str. 793; East. P. C. 818. (t) The King v. Haynes, 4 M. and S. 214. A person pretending also to be the servant of a lady, who was the customer of a tradesman, and going to that tradesman, pretending that she was sent by her said mistress, and obtaining goods, but using no other artful contrivance to obtain credit, has been holden not to be a fraud indictable at common law. (w) But where any particular message, or pretended written note, or other artful contrivance, is made use of by a servant of any description, and known to the person designed to be defrauded as the servant of the party on whose behalf the application is pretended to be made, the deception amounts to more than a mere wicked falsehood, and becomes an artful contrivance, against which ordinary caution cannot be expected to provide, and is almost every day the subject of indictment at the sessions of the metropolis and other large towns. But where two or more persons have confederated together to impose on a tradesman, though even by a mere affirmance of a fact which was not true, although they may not be indictable for the fraud at common law, they would be for a conspiracy. (x) Those acts clandestinely done, which may eventually bring burthens upon parishes, have been subjects of much doubt and controversy, as to their being indictable at common law, or not: ex. gr. privately bringing into a parish, and secreting, a single woman with child, which child is afterwards born a bastard, and chargeable to the parish, such parish not being the place of the mother's settlement. (y) These kinds of acts, however, when accomplished by concert of two or more persons, are indictable as conspiracies. It has been matter of doubt how far the neglect of a servant or apprentice, by a master or mistress, could be the subject of an indictment. It should seem on the whole, however, that though ill usage of apprentices is subjected to the summary jurisdiction of magistrates out of session by a modern statute, (2) and of another species of jurisdiction of sessions, by an anterior statute, (a) yet that, if such servant or apprentice be of tender years, and entirely under the controul of such master or mistress, and the conduct of such master or mistress amount to more than mere misbehaviour, viz. to cruelty of any kind, that such misbehaviour is a proper subject of indictment at (w) The King v. Bryan, 2 East. P. C. 819. (x) The King v. Macarlay, Salk. 286; 2 East. P. C. 828. (a) 5 Eliz. c. 4. Jurisdiction of the sessions over misdemeanors. Common assaults, what. common law; (b) and, in fact, such indictments are commonly entertained, especially with respect to parish apprentices, on the prosecution of parish officers. The Court of Quarter Sessions has jurisdiction to try and determine all misdemeanors whatsoever inferior to felony, except forgery when indictable as a misdemeanor, and perjury at common law. It is not easy to discover the principle on which these exceptions rest; but they are established by precedents and authorities which cannot be shaken. Proceedings, in case of perjury, under the statute of Elizabeth, may be instituted at sessions; but this course is now entirely disused in practice. The consideration, therefore, of these offences, which, in fact, are never prosecuted at sessions, has been omitted in the present edition, as foreign to the design of this work. § 2. ASSAULTS. 1. Common Assaults. 2. Assaults aggravated by the nature and degree of violence used. 3. Assaults aggravated by the intention to commit a higher crime. 4. Assaults aggravated by the employment or office of the party assaulted. 1. Of Common Assaults.-An assault is an attempt or offer to do an injury to the person of another, whether that injury be actually done or not. Thus, lifting up a stick or fist, in a threatening attitude, so near to the party threatened that a blow might take effect, although the fist or the stick are not brought in actual contact with his person; presenting a gun at a person within the distance to which the gun will carry, though no shot is fired; throwing any substance at another with intent to strike, though the attempt fail; are assaults in law; but mere words, whatever violence they may threaten, never amount to an assault. (c) These assaults do not include a battery, which consists in some actual and unwarranted force applied to the person; but every battery, however small, includes an assault, as spitting in a man's face, or even touching him, if done with the purpose to insult him. (d) And the assault and battery will be equally committed, (b) The King v. Ridley, 2 Campb. 650. (d) Hawk. b. 2. c. 62. `s. 2. whether the hand is actually employed or any other means; as if a dog be set on another; if a cart be wilfully driven against the carriage of another, by which bodily injury is done to those within it; or if a drunken man be wilfully pushed against the complainant ; (e) but never where the act is merely the result of accident, or an injury is done in an amicable contest, as in wrestling. (f) An assault may also be committed by exposing a servant of tender years to the inclemency of the weather; (g) by taking indecent liberties with a female pupil, of thirteen years of age, though she may not offer actual resistance; (h) and even by a medical practitioner wantonly stripping a female, under a false pretence that he cannot otherwise judge of her illness, though she, under such impression, acquiesce in the proposal. (i) no offence. There are many cases, however, in which a battery is no When a battery offence. Thus, whenever a man is first assaulted, he may lawfully strike, not exceeding the violence which appears to be necessary for the defence of his person; though he cannot, by the first assault, justify a battery manifestly excessive. (j) So he may remove a trespasser from his land, after requesting him to depart, and even without such request, where the party is proceeding to acts of destruction and violence, or is forcibly removing goods. (k) The use of necessary force in executing legal process on the person, and for frustrating an attempt to escape, may also, at all times, be justified; but the force must be necessary, and not wanton. (1) And there are relationships which justify a battery in defence of another; thus, a husband may justify a battery in defence of a wife; a wife in defence of her husband; a parent in defence of his child; a child in defence of his parent; a master in defence of his servant; and a servant in defence of his master.(m) But it has been said, that a servant cannot justify beating another in defence of his master's son, though he were commanded to do so by his master, because he is not a servant to the son; and that a tenant may not beat another in defence of his landlord. (n) Short v. Lovejoy, Bul. N. P. 16. Com. Dig. Pleader, 3 M. 18. The King v. Ridley, 2 Campb. 650. 653. (h) The King v. Nicholl, Russ. and Ry. 130. (i) The King v. Rosinski, Ry. and Mo. Cr. Cas. 19. Bul. N. P. 18. (1)2 Roll. Abr. 546. (A) 2) Hawk. b. 1. c. 60. s. 24. (k) Green v. Goddard, 2 Salk. 641. |