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The wound

must be such

death ensued, would it have been more than manslaughter? And was not this limit clearly understood throughout the act? His lordship directed an acquittal, under all the circumstances of the

case.

In a case where the prosecutor suffered grievous bodily injury from the prisoners, by being beaten with an iron bar and hammer, as to break the it was held not to be a wound within the meaning of 9 G. 4., on account of the continuity of the skin not being broken. R. v. Wood and another, 1 M. 278.

skin.

Such wound inflicted by a

hammer will be

within the stat.

Wound from a

is within the

But where the prosecutor was severely wounded by a hammer, which was thrown at him, and divided the skin, and caused an effusion of blood, it was held to be within the statute, and that the prisoner was properly convicted. R. v. Withers, 1 M. 294.

A wound from a kick with a shoe will be within the act, Tr. T. kick with a shoe 1831, MS. Bayley B. A wound from a shoe in the hand would be within the act, and a blow from a shoe on the foot would be likely to inflict a more deadly wound than a blow from a shoe in the hand. Per Ld. Tenterden, ib.

stat.

Means or in

On an indictment for wounding with intent to kill, &c., the instrument of the strument or means by which the wound was inflicted need not be stated, and though stated, do not confine the prosecutor to prove a wound by such means.

wound need

not be stated.

Averment of a wound by striking and

On an indictment which charges the wound to have been inflicted by striking with a stick and kicking with the feet, proof that the wound was caused either by a blow from a stick or from a kicking; proof kick will be sufficient, though it be uncertain by which of the two it was. Ibid.

of either suffi

cient.

Person wound

ed had been both struck

and kicked.

Averment

of means of wounding surplusage.

Biting off a finger not a wounding

within the stat.

Intent must be laid.

Indictment on 9 G. 4. charged that the prisoners, with a certain stick and with their feet, did strike, kick, and wound W. L., with intent, &c. It appeared in evidence that the prisoners struck him with a hedge-stake, or half a rail, and kicked him, and that the wound was occasioned either by a blow from a stick or by a kick from a heavy shoe, but the witnesses could not say which. On case, the judges (Patteson J. alone absent) held, that the means by which the wound was inflicted need not have been stated; that it was surplusage to state them; that the evidence did not confine the crown to the means stated, but might be rejected as surplusage; and that, whether the wound was from a blow with a stick or a kick from a shoe, the indictment was equally supported. Conviction right. Tr. T. 1831, R. v. Briggs, MS. Bayley B. S. C.

1 M. 318.

N.B. The wounds were such that prosecutor was covered with blood, his mouth was cut, and the membrane of his skull laid bare. The prisoner having been convicted at the Old Bailey in April, 1834, on an indictment for feloniously and maliciously assaulting G. A., and feloniously and maliciously wounding him, by biting off the end of the second finger of the left hand, with intent (1st count) to maim; (2d) to disfigure; (3d) to do some grievous bodily harm. A doubt having arisen whether this was a wounding within the meaning of the statute, on case reserved it was the opinion of seven judges against six that the conviction was wrong. 1834, R. v. John Stevens, MS.

E. T.

It is necessary that the indictment should allege the intent with which the defendant inflicted the personal injury with which he is charged. 1 Russ. 598.

But though the intent laid is that of doing grievous bodily Main intent to harm, and it appears that the prisoner's main intent was to prevent his lawful apprehension, yet he may be convicted, if, in order to effect such latter intent, he also intended to do grievous bodily

harm. 1 Russ. 599.

Where a poacher fired at one of three keepers, who were advancing to seize him, and the jury thought his motive was to prevent his being apprehended, but that, in order to effect that purpose, he had also the intention of doing some grievous bodily harm, it was held, that he was properly convicted on an indictment, laying the intent to be that of doing grievous bodily harm. R. v. Gillow, 1 R. & M. 85.

Where the intent charged is that of obstructing a lawful apprehension, it must appear that resistance was made to a person having lawful authority to apprehend the prisoner. R. v. Dyson, cit. 1 Russ. 600.

Where the prisoner was detected in the night attempting to commit a felony, it was held, he might lawfully be detained without a warrant, till he could be carried before a magistrate. R. v. Hunt, 1 R. & M. 93. 1 Russ. 601.

So, if the injury is inflicted with the intent to do grievous bodily harm, it is immaterial whether grievous bodily harm be or be not done. S. C. ibid.

It was also held, that to constitute this offence, general malice is sufficient, and that it is not necessary to shew particular malice against the individual. S. C. ibid.

Killing an officer who attempts to arrest a man will be murder, though the officer has no warrant, and though the man has done nothing for which he is liable to be arrested, if the officer has a charge against him for felony, and he knows the individual to be an officer, though the officer do not notify to him that he has such a charge. E. T. 1832, Bayley B. MS.

Prisoners attempted to push J. S. into a ditch: shortly afterwards, J. S. saw A., a watchman, and told him they had attempted to rob him. J. S. and A. followed them, and J. S. said to A. "That's them:" prisoners were near enough to have heard. They had not, in fact, attempted to rob J. S. A. addressed the prisoners, "You must come back and go along with me:" he did not say why, or say he had any charge: he was at the time beyond the limits in which he was watchman. One prisoner, W., drew a sharp instrument, and said, "Keep off." A. repeated, "It's of no use; you must go back." The prisoner W. made a spring at A., and caught one of the skirts of his coat: A. pulled out his staff, and turned at the prisoners, and they came at him. struck at W. with his staff, and hit him: W. immediately stabbed A., and the other prisoner struck at him with another knife. On indictment inde for stabbing, with intent to do grievous bodily harm, it appeared that the prisoners knew A. was a watchman;

He

prevent being apprehended, but by means

of doing bodily

harm, such latter intent may be laid.

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and upon conviction and case, the question was, whether, as pri- Case within the soners had done nothing to warrant their arrest, A. could legally statute. attempt to arrest them without saying they had a charge of robbery against them; and nine judges, against Bayley, Park, Littledale, and Bosanquet, held he might, and that had death ensued it would have been murder. E. T. 1832, R. v. Woolmer, MS. Bayley B. S. C. 1 M. 334.

Charge for maliciously cutting to pre

vent lawful apprehension.

Question of warrant con

tinuing in force.

Indictment pursuing the words of the statute sufficient.

Malicious cut

ting to prevent lawful apprehension.

Prisoner using unlawful games at a fair, appre

hended some hours after

wards without warrant: Held

not fresh pursuit.

It is not an offence within

43 G. 3. c. 58.

ously cutting, with intent to resist lawful apprehension, if

the cutting took

Prisoner was indicted for maliciously cutting and wounding, with intent to resist his being lawfully apprehended for a certain offence, for which "he was then and there liable to be apprehended, by, &c., viz. for that on, &c. he violently assaulted and beat one A.B." It appeared that prisoner, being apprehended on a warrant for an assault, and carried before two magistrates, refused to find bail, and while his commitment was making out, made his escape: upon which the prosecutor (being the person who had taken the prisoner into custody) was ordered verbally by the magistrates, through their clerk, to go after the prisoner, which he did; and on attempt ing to retake him, the prisoner cut him with a knife in the hand and arm. It was objected, that the warrant for the assault was functus officio, and that the second apprehension was for the escape. It was also objected that the count was bad, as it did not follow that the prisoner was liable to be apprehended for assaulting and beating A. B. The judges held unanimously that the prosecutor had power to arrest upon the original warrant ; and, secondly, that the count was good, the words of the stat. being sufficiently pursued (a), and that all after the viz. might be considered surplusage. Conviction right. M. T. 1833, R. v. Robt. Williams, cor. Gaselee J., Denb. Sum. Ass. 1833. MS.

Charge for maliciously cutting, with intent to resist lawful ap prehension. Prisoner, with several others in his company, was playing at thimble-rig in a fair, between two and four P.M., and a constable, who had orders to take up persons so employed, endeavoured to apprehend him, and took one of them, but the prisoner and the others rescued him. The constable saw nothing more of the prisoner till nine at night, when he found him at a public-house, and trying to apprehend him, the prisoner cut him, &c. By Vagrant Act, 5 G. 4. c. 83. § 4., prisoner was a rogue and vaga bond, and § 6. authorises any person whatever to apprehend any person who shall be found offending, &c. The question reserved was, whether the constable had power to apprehend without warrant, and whether it was fresh pursuit: the judges held unanimously that it was not fresh pursuit, and a pardon was recommended. M. T. 1833, R. v. W. Gardener, cor. Bosanquet J., Glamorgan Sum. Ass. 1833. MS. R. v. Howarth, 1 R. & M. 207. Hanway v. Bolton, 2 Mann. 15.

R. v. Ricketts, Worcester Sum. Ass. 1811, cor. Lawrence J., 3 Campb. 68. Indictment on stat. 43 G. 3. c. 58., for maliciously against malici- cutting one Webb, with intent to obstruct, resist, and prevent the lawful apprehension and detainer of the prisoner. The prisoner stole some wheat, which was soon after found concealed in a field. Webb watched near the place, and on the prisoner's coming and taking up the bag containing the wheat, pursued and seized him, without desiring him to surrender, or stating for what reason he was apprehended. A scuffle ensued, during which, before Webb had spoken, the prisoner drew a knife, and cut him across the throat. Lawrence J. As Webb did not communicate to the prisoner the purpose for which he seized him, this case does not come within the statute. If death had ensued, it would only have been manslaughter. Had a proper notification been made before the cutting, the case would have assumed a different com

place in an attempt to apprehend the prisoner previous to notification to him of the purpose for

which he was laid hold of.

(a) See s. 21. of 7 G. 4. c. 64.

plexion. The prisoner must be acquitted upon this indictment. (a)

Where a constable took prisoner into custody on a person's complaining to him verbally that prisoner had misused him, and charged J. S. to assist in taking him before a justice, and afterwards, in proceeding along towards the justice's, the prisoner tried to escape, and J. S. pursued, and in attempting to take hold of him was cut by him in the face with a knife, prisoner was indicted, on 43 G. 3., for maliciously cutting with intent to prevent lawful apprehension. On ca. res., the judges were of opinion, that as the original arrest was unlawful, the recaption would have been so too; wherefore it would not have been murder if death had ensued; and consequently, that on this indictment prisoner was entitled to an acquittal. E. T. 1826, R. v. Curvan, 1 R. & M. 132.

Prisoner being discovered in a shop which he had broken into, the watchman endeavoured to apprehend him, on which prisoner struck him some severe blows with a crow-bar, which cut and maimed him; the jury convicted him, and found that he wounded the watchman with intent to disable him till he could escape. On ca. res., the judges held the conviction wrong, as it appeared the prisoner intended only to produce a temporary disability, not a permanent one. The indictment was on 43 G. 3., laying the intent to murder, maim, and disable. Tr. T. 1824, Ř. v. Boyce, 1 R. & M. 29.

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poachers.

Prosecutor, a gamekeeper, was out with his brother, an assistant, Provocation to look after poachers, and they heard some guns fired in a neigh- given by gamebouring wood. Shortly afterwards, they saw the four prisoners keepers to walking in a road, one of whom had a gun, and prosecutor spoke to them for being out killing game, but used no threats, and prosecutor's brother took hold of the gun which was in the hands of one of the men, but no violence ensued between them. The place where they were was not within the manor of prosecutor's master. Shortly afterwards, the prosecutor was violently beaten, and his leg cut; and the prisoners being indicted on 9 G. 4. c.31., a case was reserved, after conviction, and the judges were of opinion that the circumstances were not such as would have made it manslaughter if death had ensued, and consequently that the conviction was right. E. T. 1833, R. v. Warner and others, 1 M. 380.

Where the prisoner was indicted under 43 G. 3. c. 58. (now Administering repealed), which made it capital "to administer to, or cause to be poison: a mere administered to, or to be taken by any one, any deadly poison," &c. delivery does and it appeared that he gave A., a woman by whom he had had a child, a poisoned cake, and urged her to eat it, and she put a

(a) Mr. Campbell adds, in a note, But if a constable, acting within his district where he is generally known, produces his staff of office, the law will presume that the party to be apprehended had due notice of his intent, without a verbal notification. Gordon's case, 1 East's P. C. 315. And it is sufficient for a constable to say he arrests in the king's name. 1 Hale, 583. Where it appears that the party knows the officer and his business, the law requires no express notice to be given. Thus, where Pew drew his sword on a bailiff who came to arrest him, and said, "Stand off, I know you well enough: come at your peril," and upon the bailiff's immediately taking hold of him, without using words of arrest, or shewing any warrant, Pew killed him, this was holden to be murder. Pew's case, Cro. Car. 183.

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not constitute.

Aider and abet

need not state that he was

feloniously pre

piece of it in her mouth, but did not swallow it: after conviction, on ca. res., the judges were of opinion that the delivery to the woman did not constitute an administering within the statute, and a pardon was recommended. R. v. Cadman, 1 R. & M. 114.

In a prosecution under 43 G. 3. prisoner was convicted on a ter; indictment count charging that an unknown person feloniously, &c. shot at prosecutor, and that prisoner and two others were then and there present, aiding and abetting. An objection was taken that the indictment was defective, on account of its omitting to state that the prisoner was feloniously, &c. present, &c., and the point was reserved for the consideration of the judges: the judges were all of opinion that the conviction was right. M. T. 1816, R. v. Towle, C. C. R. 314. 1 Russ. 603.

sent, &c.

9 G. 4. c. 31. Arresting a clergyman during divine

service.

Punishment for

cers, &c. for their endeavours to

By 9 G. 4. c. 31. § 23. "If any person shall arrest any clergyman upon civil process, while he shall be performing divine service, or shall, with the knowledge of such person, be going to perform the same, or returning from the performance thereof, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall suffer such punishment, by fine or imprisonment, or by both, as the court shall award."

§ 24. "If any person shall assault and strike or wound any assaults on offi- magistrate, officer, or other person whatsoever lawfully autho rised, on account of the exercise of his duty, in or concerning the preservation of any vessel in distress, or of any vessel, goods, or effects wrecked, stranded, or cast on shore, or lying under water, every such offender, being convicted thereof, shall be liable to be transported beyond the seas for the term of seven years, or to be imprisoned, with or without hard labour, in the common gaol or house of correction, for such term as the court shall award."

save shipwrecked property.

Assaults with

intent to commit felony; assaults on peace officers; or to prevent the arrest of

be

$25. "Where any person shall be charged with, and convicted of, any of the following offences as misdemeanors; that is to say, of any assault with intent to commit felony; of any assault upon any peace officer or revenue officer in the due execution of his duty, or upon any person acting in aid of such officer; of any assault upon any person, with intent to resist or prevent the offenders; or in lawful apprehension or detainer of the party so assaulting, or of any other person, for any offence for which he or they may liable by law to be apprehended or detained; or of any assault punishable with committed in pursuance of any conspiracy to raise the rate of wages; in any such case the court may sentence the offender to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding two years, and may also (if it shall so think fit) fine the offender, and require him to find sureties for keeping the peace."

pursuance of a conspiracy to

raise wages;

hard labour.

Assault on any seaman, &c. to prevent him

from working; assault with intent to ob

struct the buying or selling of grain, or its free passage,

punishable be fore two magis

§ 26. "If any person shall unlawfully and with force hinder any seaman, keelman, or caster from working at or exercising his lawful trade, business, or occupation, or shall beat, wound, or use any other violence to him, with intent to deter or hinder him from working at or exercising the same; or if any person shall beat, wound, or use any other violence to any person, with intent to deter or hinder him from selling or buying any wheat or other grain, flour, meal, or malt, in any market or other place, or shall beat, wound, or use any other violence to any person having the care or charge of any wheat or other grain, flour, meal, or malt,

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