cretion of the court, be either transportation beyond the seas for seven years (b), or imprisonment for not exceeding (c) two years. Where imprisonment is awarded for such offence, the convict may also be sentenced to be kept to hard labour (d) in the common gaol or house of correction of the county, and to solitary confinement (e); but the latter punishment is now limited to periods not exceeding one (lunar) month at a time, and three (lunar) months in a year (ƒ). If a male (g), he may also be ordered to be whipped once, twice, or thrice, privately or publicly (h). The punishment on conviction of felony after a like previous conviction is increased (c). Punishment of Felonies for which no Punishment is Specially Enacted.]-Persons convicted of " any felony, for which no punishment is specially provided by any act," are punishable (i) by transportation for seven years or imprisonment for any term not exceeding two years, and in the case of a male offender, with one, two, or three public or private whippings, if the court thinks fit, in addition to the imprisonment. Hard labour may also be added to the imprisonment in the common gaol or house of correction (k). Solitary confinement may also form (b) 7 & 8 G. IV. c. 29, s. 4. The act which regulates the manner of transportation is 5 G. IV. c. 84, see 6 & 7 Vict. c. 26, s. 14. If an act direct an offender to be transported generally, without specifying the place, it shall be understood to mean the place to which convicts are at the time legally transported, which is now Botany Bay, 1 Hawk. 7th ed. 407; but the entry of the judgment of transportation must not be that it was ordered, but that it was considered by the court. However, the court below will be suffered to amend the entry, R. v. Kenworthy, 1 B. & Cr. 711. The principal of these punishments, transportation, was unknown to the common law; and was introduced about the end of Elizabeth's reign for the purpose of colonizing newly discovered or acquired settlements, by a commutation for capital punishment, operating as a statutory pardon. The original enactment was 39 El. c. 4, s. 4, (see Barrington, 352, cited 4 Bla. C. 401,) and conferred power on the quarter sessions alone to transport beyond sea, or to adjudge offenders "perpetually to the gallies of this realm." By the habeas corpus act, 31 C. II. c. 2, s. 14, power was reserved to transport beyond seas such persons as, being convicted of felony, shall pray to be so transported. Transportation was subsequently extended to cases where the benefit of clergy was prayed, and to petty larceny, by 4 G. I. c. 11. In the first instance, offenders were always transported to some of the plantations in America; subsequently, however, their destination has been placed at the appointment of the crown, by the advice of its council; and, by other statutes, provision has been made for confining persons sentenced to transportation at the Milbank prison, instead of sending them beyond the seas, 6 & 7 Vict. c. 26, s. 12; 56 G. III. c. 63; 59 G. III. c. 136. (c) See ante, p. 250. (d) First introduced by 5 Ann. c. 6, s. 2. See 7 Ad. & E. 505, and applied to larcenies. (e) 7 & 8 G. IV. c. 29, s. 4. See id. c. 28. s. 9. (f) 1 Vict. c. 90, s. 5. (9) Whipping women had been before abolished by 1 G. IV. c. 57, s. 2. (h) 7 & 8 G. IV. c. 29, s. 3. (i) 7 & 8 G. IV. c. 28, s. 8. (k) 7 & 8 G. IV. c. 29, s. 9. part of this sentence, but not for longer than one (lunar) month at a time, or than three (lunar) months in the course of a year (1). Punishment of Malicious Injuries to Property.]—Malicious injuries to property, for which imprisonment may be awarded on conviction under 7 & 8 G. IV. c. 30, may also be punished at the discretion of the court by imprisonment simply, or imprisonment and being kept to hard labour in the common gaol or house of correction, and also by solitary confinement, during such portions of the imprisonment, with or without hard labour (m), as has been just stated. Punishment of higher Offences, or Offences subjected to Imprisonment by Stats. 7 W. IV. & 1 Vict. cc. 85-91.]-Offences of a higher nature, if tried at sessions, must be punished in the mode provided by the special enactments applicable to them, and within the limits of the discretion there allowed (n). All the offences subjected to imprisonment by the new criminal acts, 7 W. IV. & 1 Vict. cc. 85 to 91 inclusive, are also punishable or not by hard labour, at discretion of the court. Punishment in Cases of Misdemeanour.]-The punishments in ordinary cases of misdemeanour, where they are not specially apportioned by any act of parliament, are fine or imprisonment, or both, in the discretion of the court; with a further requisition of security (if the court shall deem fit) for the good behaviour of the party convicted, during a reasonable period. Punishment of Misdemeanours by Hard Labour.]-In cases of misdemeanour, the court were formerly not authorized to sentence parties to be kept to hard labour in addition to imprisonment, and their confinement in idleness often became a cause of their increased depravity. This evil has been remedied by stats. 3 G. IV. c. 114; 9 G. IV. c. 31, s. 25; and, as it seems, by 7 W. IV. & 1 Vict. c. 85, s. 8, 11. By 3 G. IV. c. 114, the court may sentence to imprisonment with hard labour for not exceeding the term for which they might previously imprison, either in addition to or in lieu of any other punishment which might then be inflicted, in the following cases : [Assault with intent to commit felony. s. 1, and replaced, id. s. 25.] Attempt to commit felony. (1) 7 W. IV. & 1 Viet. c. 90, s. 5; which see post. Repealed 9 G. IV. c. 31, (m) 7 & 8 G. IV. c. 30, s. 27. Riot. [Receiving stolen goods knowing them to have been stolen. Repealed 7 & 8 G. IV. c. 27, s. 1 (o).] [Assault on a peace officer, or officer of customs and excise, or any revenue officer, acting in discharge of his duty, or any person acting in their aid. And Assault committed in pursuance of any conspiracy to raise the rate of wages. Repealed 9 G. IV. c. 31, s. 1, and replaced, id, s. 25.] Knowingly uttering counterfeit money. [Obtaining money, &c. by false pretences with intent to cheat. Repealed 7 & 8 G. IV. c. 27, s. 1.] Keeping a common gaming-house, a common bawdy-house, or a common disorderly house. Perjury and subornation of perjury. [Having entered ground with intent there illegally to take or kill game or rabbits, or to aid, &c.; and having been found there at night armed with any offensive weapon, viz. the offence described in 57 G. III. c. 90, which act is now repealed, 9 Geo. IV. c. 69, s. 1.] By 9 G. IV. c. 31, s. 25, the court may sentence the offender to be imprisoned with or without hard labour, for any term not exceeding two years, and also to fine such offender, and require him to find sureties for keeping the peace, in the following cases of assault, some of which, it will be seen, are, and others are not, included in the former statute: Assault with intent to commit felony. 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. Assault upon any person with intent to resist or prevent the lawful apprehension or detainer of the party so assaulting, or of any other person for an offence for which he or they may be liable by law to be apprehended or detained. Assault committed in pursuance of any conspiracy to raise the rate of wages. In common assaults, conspiracies, and all other cases of misdemeanour not provided for by statute, the court has still no power to do more than fine, imprison, and require sureties; but, as it is now enacted (p), "That where on the trial of any person for any of the (0) See 3 Q. B. R. 406, R. v. Silver- (p) 7 W. IV. & 1 Vict. c. 85, s. 11. offences therein-before mentioned, or for any felony whatever, where the "crime charged" (q) shall include an assault against the person, it shall be lawful for the jury to acquit of the felony (r), and to find a verdict of guilty of assault against the person indicted, if the evidence shall warrant such finding, and when such verdict shall be found, the court shall have power to imprison the person so found guilty of an assault for any term not exceeding three years. It was stated in the fourth edition, that persons so convicted appeared liable to be also punishable with hard labour and solitary confinement under sect. 8 of that act (s), an opinion now confirmed by the decision of the fifteen judges (t); but a conviction on sect. 9 of the act seems not to empower a court to impose hard labour (u). The more reasonable construction of the act would confine the power to convict of the assault to cases, where the nature of the felony charged in itself necessarily includes an assault on the person (x), or where the felony as charged in the indictment, in fact does include such These words mean the charge as stated in the indictment, Reg. v. Ellis, 7 C. & P. 654. Indictment on 7 W. IV. and 1 Vict. c. 87, s. 3, for highway robbery, in assaulting B. B., putting him in fear, and taking from his person and against his will, a watch, &c. and with personal violence. Verdict, "We find the prisoner guilty of an assault, but without any intention to commit any felony." Alderson, B., vouched the fifteen judges, and sentenced the prisoner to imprisonment with hard labour, adding, that in all cases of felony where an assault was stated as part of the charge, the jury is at liberty to acquit of the felony, and find the party guilty of a common assault; but qu. this latter part of the decision. Though no boy under fourteen years old can be convicted of a rape, however clear the evidence of its commission by him, he may be legally convicted of an assault under this act, Reg. v. Brimilow, 2 Mood. C. C. R. 122; S. C. 9 C. & P. 366. We have seen that a husband and wife who are jointly indicted for a capital felony in causing a bodily injury dangerous to life by striking, &c. (as provided against by 7 W. IV. and 1 Vict. c. 85, s. 2), may be convicted of an assault and sentenced to imprisonment with hard labour. See Reg. v. Cruse et ux. 2 Mood. C. C. R. 53; and see Reg. v Ingram, 1 Salk. 284. And one good count will give operation to the enactment, Reg. v. Nicholls, 9 C. & P. 267. (r) See R. v. Banks; R. v. Folkes, infra. (8) 7 W. IV. and 1 Vict. c. 85, s. 8, which enacts that where any person shall be convicted of any offence punishable under this act for which imprisonment may be awarded, it shall be lawful for the court to sentence the offender to be imprisoned and kept to hard labour in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment, or of such imprisonment with hard labour, not exceeding one month at any one time, and not exceeding three months in any one year, as to the court in its discretion shall seem meet. (t) Reg. v. Saunders, 8 C. & P. 265; anon. 2 Mood. C. C. 40; and see Reg. v. Williams, 8 C. & P. 287. (u) Per Rolfe, B. (x) Reporter's note, 2 M. & Rob. 534, citing R. v. Watkins, 2 Moo. C. C. R. 217, where in burglary laid with intent to ravish A. D., the judges held that the prisoner could not be convicted of assault on A. D. under this act, though beating, &c. A. D. in the dwelling-house was charged. assault (y), or where the assault conduced to the manslaughter or other injury charged (z). On an indictment for the misdemeanour of assaulting a girl aged between ten and eleven, with intent to commit a rape; her consent was held to put an end, not only to that charge, but also to that of common assault contained in another count (a). Whipping Male Persons guilty of Misdemeanours.]—There are, (y) E. g. comm. semb. in case of an indictment charging prisoner to have administered poison by force, Reporter's note, 2 M. & Rob. 534. In Reg. v. Boden, C. & Kir. 395, Parke, B., says one construction of the act is, that the statute warrants a conviction for assault in every case where the felony charged includes an assault; and another is, that it authorizes a conviction of that assault which is offered in evidence on the part of the prosecution in support of the felony charged. (2) In Reg. v. Phelps and others, 2 Moo. C. C. 240, several were indicted for murder. One had assaulted deceased in a previous scuffle which was not at all connected with the cause of death. The judges held he could not be convicted of assault under this act. So in manslaughter a jury should not convict a prisoner of an assault unless it conduced to the death of the deceased, even though the death itself was not manslaughter, Patteson, J., in R. v. Crumpton, C. & Mar. 597. If a man gets into the bed of a married woman and penetrates her person, she consenting in the belief of his being her husband, this act being fraudulent, will not amount to rape, but on an indictment for that offence, since the above enactment, he may be found guilty of "an assault," so as to be liable to imprisonment with hard labour under sect. 8, Reg. v. Saunders, 8 C. & P. 265, per fifteen judges. See R. v. Jackson, R. & Ry. 487. In Reg. v. Williams, id. 287, the connexion was completed without discovery. In R. v. Saunders, as in R. v. Jackson, the man, being detected, was interrupted. Had he persisted with force, it would have been rape, Reg. v. Stanton, C. & Kir. 416. The law is the same where a man takes advantage of being employed in a medical capacity about a female's person to abuse it by surprise, though for a moment only, and is indicted for rape, Reg. v. Stanton, C. & Kir. 415, 416. But where the offence charged is the having administered poison, with intent to murder, the prisoner must be convicted or acquitted of the whole charge, as well of the assault as the felony, Reg. v. Dilworth, 2 M. & Rob. 531, Coltman, J. doubting R. v. Button, 8 C. & P. 660. And the "crime charged" does not include the felony, Reg. v. Draper, C. & Kir. 176, Parke, B., and Tindal, C. J. The felony of assaulting and carnally knowing and abusing a girl under ten years old, though incurring transportation for life, whether she consent or not, has been held, if she consents, to be not such a "felony" as will include an assault within the above enactment: so that the prisoner must either be convicted of the felony or acquitted altogether, Reg. v. Banks, 8 C. & P. 575, Patteson, J., and see Reg. v. Meredith, infra, S. P. in misdemeanour; but this case has been disregarded in Reg. v. Folkes, 2 M. & Rob. 460, per Rolfe, B. On an indictment for assaulting with intent to rob, if that intent is negatived by the jury, the prisoner may be convicted of assault under the above enactment, Reg. v. Boden, C. & Kir. 395. Of two or more prisoners tried for capital felony in wounding, some may be convicted of the felony and others of the assault only, Reg. v. Archer and four others, C. & Kir. 174. (a) Reg. v. Meredith, 8 C. & P. 589, Lord Abinger said, that it was necessary to show such an assault as could not be justified, if license had been pleaded in an action; and held, that the mere permitted laying hands on such a girl, though a step towards the commission of what might be a misdemeanour, still, if done by her consent, was not such an illegal act, or attempt to commit a misdemeanour, as could be indicted. |