Page images
PDF
EPUB

ing of the words "other person having the lawful charge," &c. vide ante,

46

The forcible and unlawful taking away of females," &c. page 71.

7. ABANDONING CHILDREN.

If the father or mother of any child under the age of six years, or any other person to whom it shall have been confided, shall expose such child in any highway, street, field, house, or outhouse, with intent wholly to abandon it, he or she may be imprisoned in a state prison, not exceeding seven years, or in a county jail not more than one year.(n)

The intent wholly to abandon the child, is what constitutes this crime. This intent must, therefore, be proved, either by direct evidence, or by circumstances; in the same manner as a criminal intent is to be proved in other cases.

8. ASSAULTS WITH DEADLY WEAPONS.

Every person who shall be convicted of shooting at another, or of attempting to discharge any kind of fire arms, or any air gun at another, or of any assault and battery upon another by means of any deadly weapon, or by such other means or force as was likely to produce death; with the intent to kill, maim, ravish or rob, such other person, or in the attempt to commit any burglary, larceny, or other felony, or in resisting the execution of any legal process; may be punished by imprisonment in a state prison for a term not more than ten years.(0)

Assaults with deadly weapons, or with the intent to commit any felony, are of a much more aggravated character than common assaults, and the legislature has attached to them additional penalties. A comprehensive view will be taken of the subject, in this place; and the reader will also find some remarks respecting assaults of this kind in other parts of this work, in connexion with the several offences, with the intent to commit either of which the assault is charged to have been made.

Assaults and batteries of an inferior grade to those mentioned in the above section of the statute, will be reserved for consideration in another place.(p)

An assault is defined to be an attempt or offer, with force and violence, to do a corporal hurt to another; as by stricking at him with or without a weapon; or presenting a gun at him, at a distance to which the gun will carry; or pointing a pitchfork at him, standing within the reach of

(n) 2 R. S. 665, § 35. (0) Id. ib. § 36.

ors.

(p) See post, Book II. "Misdemean

it; or by holding up the fist at him, or by any other similar act done in an angry, threatening manner. (q) A person charged with an assault and battery may be found guilty of the former and acquited of the lat ter. Every battery includes an assault; but no words whatever can amount to an assault. (r)

A battery is more than an attempt to do a corporal hurt to another; but any injury whatever, be it ever so small, being actually done to the person of a man, in an angry or revengeful, or rude or insolent manner, such as spitting in his face, or in any way touching him in anger, or violently jostling him out of the way, is a battery. (s) For the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred and no other having a right to meddle with it in any the slightest manner. (t) If a man strike at another with a cane or fist, or throw a bottle at him, or the like, if he miss him it is an assault; if he hit him it is a battery.(u)

Under the section of the statute above referred to, we are to consider 1. The shooting, or attempting to shoot at another; 2. Assaults and batterics with any deadly weapons, or by such other means or force as was likely to produce death; 3. The intent to kill, maim, ravish, or rob; 4. The attempt to commit any burglary, larceny, or other felony; 5. Resisting the execution of any legal process.

1st. The shooting or attempting to shoot at another.] In an indictment under this clause of the section, it is necessary to allege the shooting, and that the gun was loaded in such a manner as to produce the effect intended; and these allegations must be proved. (v) It is true the statute does not in express terms make it necessary, that the gun, &c. should be loaded with bullets, &c.; but that it should contain something besides gunpowder is a necessary implication. It would be absurd to class the discharging of a gun loaded with powder only as among the "means likely to produce death;" or to attach to such an act an "intent to kill or maim." The English statute on this subject (w) uses the words "loaded arms." It has been decided under this statute that it is not necessary to allege or prove that the gun contained any ball or shot; but that if it was loaded with powder and wadding only, or if the prisoner fired it so near the person of the prosecutor, and in such a direction, that

(q) Hawk. b. 1, c. 62, s. 1.

(7) Idem.

(s) 1 Russ. on Cr. 604. (t) 4 Black. Com. 120.

(u) Arch. Cr. Pl. 346.
(v) Idem, 349.

(w) 9 Geo. 4, ch. 31, s. 12.

it would probably kill him, &c., the case was within the statute.(x) In this case, however, the jury found that the gun was loaded with some other destructive material. It has been decided under the same statute, that a prisoner could not be convicted of an attempt to shoot, by drawing the trigger of a gun which was not primed, at the time. (y) So if the touch-hole is plugged. (z) These cases were decided upon the principle that guns so circumstanced ought not to be considered loaded guns, within the meaning of the act. If it be alleged that the gun was loaded with powder and a bullet, it must be proved to have been loaded with powder and a bullet. (a) Where the prisoner, by snapping a percussion cap, discharged a gun barrel detached from the stock, this was held " shooting at" with "loaded arms" within the statute 9 Geo. 4, c. 31.(b) But to constitue the offence of attempting to discharge loaded fire arms, they must be so loaded, as to be capable of doing the mischief intended. So that if part of the loading has fallen out, though without the prisoner's knowledge, and that which remains is inadequate to effect the mischief, the case is not within the act. (c)

"a

2d. Assaults and batteries with any deadly weapons, or by such other means or force as was likely to produce death.] This part of the section is so clear that it needs no commentary or illustration. The only questions which can arise under it are, whether an "assault and battery” was committed; whether the weapons used were "deadly;" and whether the "meaus or force" was of a nature likely to "produce death." We pass

on to

3d. The intent to kill, maim, ravish or rob.] The intention is not, in general, capable of positive proof. It can only be implied from overt acts; and every man is supposed to intend the necessary consequence of his own acts. Therefore, if it cannot be inferred from the facts and circumstances which, together with it, constitute the offence, other acts of the defendant, from which it can be implied to the satisfaction of the jury, must be proved at the trial. (d) The intent must be proved as laid. Hence the necessity of several counts in the indictment, charging the offence to have been committed with different intents. (e) Thus, where the prisoner was charged with cutting, &c. with intent to murder, maim, and disable, and the jury found that the intent was to commit a robbery, and that the prisoner cut and maimed the watchman, with intent to

(z) Kitchen's Case, Russ. & Ry. 95. (y) Carr's case, id. 377.

(z) Harris' case, 5 Car. & P. 159. (a) Idem, 126.

(b) Cate's case, 6 Car. & P. 394.
(c) 1 Russ. on Cr. 596.
(d) Arch. Cr. Pl. 104.
(e) Idem, 353.

disable him till he could effect his own escape, it was held that the prisoner ought not to be convicted.(ƒ)

The intent to kill.] An assault, with intent to kill, unless it be with some deadly weapon, or by some other means or force likely to produce death, is not a felony.(g) Where the prisoner is charged with doing some act, with intent to murder, and from the circumstances it appears that if death ensued it would have been manslaughter only, he must be acquitted, on the ground that the intent must be proved as laid. (h) The word "kill," in our statute, must have the same meaning as the word “murder" would have had. The words "intent to kill" certainly exclude the idea of manslaughter; which is a killing "without a design to effect death."(i)

"In estimating the prisoner's real intentions," says Mr. Starkie, "it is obviously of importance to consider the nature of the instrument used, and the part of the body on which the wound was inflicted, according to the plain and fundamental rule, that a man's motives and intentions are to be inferred from the means which he uses and the acts which he does. If with a deadly weapon he deliberately inflicts a wound upon a vital part, where such a wound would be likely to prove fatal, a strong inference results that his mind and intention were to destroy."(k) It may be stated, however, as a general rule, that a man is answerable for his acts; and therefore, if intending to stab A. he stab B., he may be indicted for stabbing B., with intent, &c. and the facts will sustain the indictment. But if it be doubtful whether the act was done by accident or design, other circumstances may be given in evidence to prove the intent. (1) Where the question is, whether the shooting at another was by accident or design, evidence that the prisoner at an another time maliciously shot at the prosecutor is admissible.(m) Where the prisoner is charged with making an assault, with intent to murder, he may, in case the intent is not proved, be convicted of the common assault. (n)

Intent to maim.] The statutory definition of maiming, or mayhem, has heretofore been given.(o) Though the primary intent of the of fender be of a higher or more atrocious nature, viz. to murder, and in that attempt he does not kill, but only maims the party, it is an offence within the statute; for it is a known rule of law, that if a man intend to

(f) 1 Moody's C. C. 29. 1 Russ. on Cr. 585.

(g) 4 Mass. Rep. 439. 4 Black. Com.

207, n. (k).

(h) 1 East's P. C. 411.

(i) 2 R. S. 661, § 6.

(k) 2 Stark. Ev. 500, 2d ed.

(2) Arch. Cr. Pl. 354.

(m) Voke's case, Russ. & Ry. 531. (n) 2 Stark. Ev. 500.

(0) Ante, 73.

commit one kind of felony, and, in the prosecution of that, commit another, the law will connect his felonious intention with the felony actually committed, though different in species from that he originally intended.(p) In the case of Coke and Woodburn, (q) where the defendants had the effrontery to set up, as a defence, that the assault was committed by them with intent not to maim or disfigure, but to murder-the court held, that if a man attack another with intent to murder him, with an instrument which cannot but endanger the maiming of him, and in such attack happen not to kill, but only to disfigure or maim him, it is within the statute which made it a felony to commit any of the offences therein mentioned, with intent to maim or disfigure. The defendants were accordingly convicted and executed.(r)

The fourth subdivision of the section of the statute defining mayhem contains the words, "cut off or disable any limb or member." (s) The word disable has been decided to signify the infliction of a permanent injury. Therefore, where the indictment charged an intent to disable, and it appeared that the prisoner only intended to disable the party till he could effect his own escape, it was held not within that part of the statute.(t)

Intent to ravish.] Assaults with intent to ravish have been already treated upon under the head of "Rape;" to which title the reader is referred. (u)

Intent to rob.] To support an indictment for an assault with deadly weapons, &c. with intent to rob, the prosecutor must prove the assault; that it was made with some deadly weapon, by shooting at, or by some other means or force likely to produce death; and the intent to rob. In proof of the assault it is not necessary to show that the prisoner committed actual violence upon the prosecutor; for an assault is an attempt to commit a forcible crime upon another; and therefore if the prisoner, intending to rob the prosecutor, did any thing in his presence, with reference to him, in furtherance of that intent, it will be sufficient. The evidence upon this sort of indictment at common law, usually proves a robbery, with the exception of the taking and carrying away of property. (v) The assault must be made upon the person intended to be robbed.(w) But no actual demand of money or property is necessary upon the charge of assaulting with deadly weapons, &c. with intent to rob. (x) The intent

(p) 1 East's P. C. 400.

(g) 6 St. Tr. 212.

(r) 4 Black. Com. 207, n. (k). See

also Russ. & Ry. 362.

(8) 2 R. S. 664, § 27.

(u) Ante, p. 65, 70.

(v) Arch. Cr. Pl. 229, 230.

(w) Roscoe's Cr. Ev. 754. 3 Chit. Cr. L. 807, n. 1 Russ. on Cr. 616.

(x) 1 Russ. on Cr. 617. Arch. Cr. Pl.

(t) Boyce's case, 1 Moody's C. C. 29. 230.

« PreviousContinue »