to rob is a material part of the offence, and should be properly alleged in the indictment. It must, of course, be proved from circumstances. It is a question for the jury to determine, and which they will, in general, have to presume from the circumstances attending the assault, the time and place in which it was committed, and the general conduct of the prisoner at the time. Menaces, threats, violence, and in short whatever conduct which, if it had been followed by a taking of property, would have constituted robbery, will in this case be evidence of an attempt to rob.(y) If the assault with intent to rob is not made with deadly weapons, &c. the punishment is imprisonment in a state prison not more than five years, or in a county jail not over one year, or a fine not exceeding $500.(z)

4th. The attempt to commit any burglary, larceny or other felony.] A felony, as we have seen, (a) is any offence for which the offender may be punished by death or by imprisonment in a state prison. To determine, therefore, whether the offence with an attempt to commit which the prisoner is charged be a felony, it will only be necessary to refer to the revised statutes to see whether it is subject to the punishment attached to felonies. Every attempt to commit a felony against the person of an individual involves an assault. On an indictment under this clause of the statute it is necessary to prove an attempt to commit the felony; that an assault with deadly weapons, &c. was made in such attempt; and that the attempt was made under such circumstances, that had it succeeded the prisoner might have been convicted of the felony. If the prosecutor fails in proving the intent, but proves the assault, the defendant may be convicted of the common assault. (b) The crimes of burglary and larceny will be defined hereafter.

5th. Resisting the execution of any legal process.] The statute only makes it an offence to assault another with deadly weapons when the injury is done in resisting the execution of any legal process; and therefore the prosecutor must show that the process was legal. (c) And in order to render a party guilty of assaulting with deadly weapons, &c. in resisting the execution of legal process, it must appear that he had notice of the authority of the officer. (d)

First, as to the legality of the process. The statute applies as well to civil as to criminal process. By the term legal process is to be

(y) Arch. C.. Pl. 230. Roscoe's Ev.

754.

1 East's P. C. 418.

(z) 2 R. S. 666, § 39.

(a) Ante, p. 18.

Archb. Cr. Pl. 357.

(c) Russ. & Ry. 365. 1 Stark. N. P. Ca. 246.

(d) Roscoe's Cr. Ev. 656, 625. 1 Russ. on Cr. 518.

understood only that the writ or warrant must not be deficient in the frame of it, and must issue in the ordinary course of justice from a court or magistrate having jurisdiction of the case. (e) Therefore though there may have been error or irregularity in the proceeding previous to the issuing of the process, it will be an offence within the statute if the officer be assaulted in the execution of it; for the officer to whom it is directed must, at his peril, pay obedience to it.(f) And for this reason, if a writ of any kind issue directed to the sheriff, and he or any of his officers be assaulted in the execution of it, it is sufficient, upon an indictment for this assault, to produce the writ, without showing the judgment or decree.(g) But it seems that the writ must be produced.(h) So though the warrant of a justice of the peace be not in strictness lawful, as if it do not express the cause with sufficient particularity; yet if the matter be within his jurisdiction, the assaulting of the officer executing the warrant will be within the statute; for it is not in the power of the officer to dispute the validity of the warrant, if it be under the hand of the justice. (¿) It may be observed also that in all kinds of process, both civil and criminal, the falsity of the charge contained in such process will afford no excuse for assaulting the officer; for every man is bound to submit himself to the regular course of justice ;(k) and therefore in the case of an escape warrant, the person executing it was held to be under the special protection of the law, though the warrant had been obtained by gross imposition on the magistrate, and by false information as to the matters suggested in it. (1) But if the process be defective in the frame of it, as if there be a mistake in the name or addition of the person on whom it is to be executed; or if the name of the officer or the party be inserted without authority, and after the issuing of the process; and the officer is assaulted in endeavoring to execute it, these circumstances will be a good defence on an indictment for the assault. (m) So if the process was issued with a blank in it and the blank was afterwards filled up. (n) Or issued with an insufficient description of the defendant, as for instance, if it were to take the son of J. S. L., or was attempted to be executed against C. instead of B. (0) And so if the officer was attempting to execute the

(e) 1 Russ. on Cr. 511.

(f) Idem. Fost. 311. 1 Hale, 457. (g) 1 Russ. 511.- Fost. 311, 12. (h) Rex v. Mead, 2 Stark. C. 205. (i) Hale, 459, 460. It is said, however, that this must be understood of a warrant containing all the essential requisites of one. I East's P. C. c. 5. § 78, p. 310.

(k) 1 East's P. C. 310.

(1) Fost. 135, 312.

(m) 1 Hale, 457. 1 Hawk. P. C. c. 31, s. 64. Fost. 312. 1 East's P. C. 310. Cro. Car. 371.

(n) Stockley's case, 1 East's P. C. 310. Honsin v. Barrow, 6 T. R. 122. 8 Id. 454. Moody's C. C. 281.

(0) Id. ib.

process out of the district in which alone it could be legally executed,(p) or upon a Sunday. (q)

Secondly, as to notice of the authority of the officer. The party whose liberty or property is interfered with, must have due notice of the officer's business, or an assault upon such officer will not come within this statute. As where a bailiff rushes into a gentleman's bed chamber early in the morning, without giving the slightest intimation of his business, and the gentleman, not knowing him, in the impulse of the moment, assaults the bailiff, it is not a case within the statute.(r) But where the officer shows his process, (s) or where it appears that he is known by the defendant to be an officer; as for instance, when the prisoner said "stand off; I know you well enough; come at your peril ;"(t) an assault upon the officer will be within the statute. If a constable command the peace, or show his staff of office, this, it seems, is a sufficient intimation of his authority.(u) And in such a case it is not necessary to prove his appointment as constable. Proof that he was accustomed to act as such, is sufficient. (v) If the officer be within his proper district, and known, or but generally acknowledged to bear the office he assumes, the law will presume that the party assaulting had notice of his intent; especially if it be in the day time. (w) In the night, some further notification is necessary; and commanding the peace, or using words of the like import, notifying his business, will be sufficient.(x) But private persons, when executing process under a special deputation, or otherwise, must expressly intimate their authority and intention. (y) Where the outer door of a dwelling house may be broken open, in order to execute process, (as, for instance, in the case of a capias upon an indictment; a warrant to search for stolen goods; a warrant of a magistrate for levying a penalty; a magistrate's warrant to arrest for any crime; or where a person lawfully arrested escapes into a house; where one known to have committed treason or felony, or to have dangerously wounded another, escapes into a house; where there is an affray in a house, and the constable wants to suppress it, or to take the offenders; and in the case of forcible entry or detainer; but not in the execution of writs in civil cases, excepting writs of seizin, or of possession,) in all these cases before the outer door is broken open, there must be a demand of admittance, or something

(p) Arch. 332. 1 Russ. on Cr. 510.

(q) Arch. Cr. Pl. 333.

(r) See 1 Hale, 470.

(s) lbid, 461.

(t) Cro. Car. 183.

(u) 1 Hale, 461. Fost. 311.

(v) 1 East's P. C. 315.

(w) 1 Russ. on Cr. 515, 516. 1 East, 315.

(x) 1 Hale, 461. Fost. 311.

(y) See Fost. 310, 311.

equivalent thereto, and a refusal; otherwise an assault upon the officer with deadly weapons, &c. will not be within the act.(z)

9. ADMINISTERING POISON.

Every person who shall be convicted of having administered, or having caused and procured to be administered, any poison to any other human being, with intent to kill such being, and which shall have been actually taken by such being, whereof death shall not ensue, shall be punished by imprisonment in a state prison for a term not less than ten years.(a)

This being an offence which exhibits more deliberate malignity than any involuntary manslaughter, a discretion is given to the court to punish it by imprisonment for life or a shorter period.(b) Under the English statute, which is similar to the above, it has been decided that to constitute the offence of administering poison, some of the poison must be taken by or applied to the person to whom it is administered, and that merely giving it, if no part was taken or applied, was not sufficient. (c) It has also been decided, in England, that to constitute an administering, it is not necessary that the poison should be delivered by the hand of the prisoner. Therefore, where a servant put poison into a coffee pot, and when her mistress came down to breakfast, told her that she had put the coffee pot there for her, and the mistress drank of the poisoned coffee; this was held "causing the poison to be taken," within the statute.(d) Where A. sent poison intending it for B., with intent to kill B., and it came into the possession of C., who took it, but did not die, this was held to be a case within the statute.(e) Under our statute it is clearly neces sary that the poison should be taken by the person to whom it is administered; though it has been doubted in England whether this is necessary under their statute. (f) It is necessary to prove also on an indictment under our statute, that the drug or substance administered was a poison ; and that it was administered with the intent to kill. It is not necessary to prove the administering of the particular kind of poison mentioned in the indictment. If it be proved that poison of a similar kind was administered, it will support the indictment.(g)

(z) Arch. Cr. Pl. 333.

(a) 2 R. S. 665, § 37.

(6) Rev. Notes, pt. 4, p. 22.

(c) Cadman's case, 1 Moody's C. C. 114.

(d) Harley's case, 4 Car. & Payne, 369.

(e) 6 Car. & Payne, 161.

(f) 1 Moody's C. C. 114.

(g) Arch. Cr. Pl. 341, 316. 1 Russ. on Cr. 554.

With regard to the intent to kill, this must be expressly alleged in the indictment, and must be proved. In most cases, however, it can, of course, only be made out by circumstances. Evidence of administering poison at different times, may be given, to show the intent. (h) It will be observed this section of the statute only applies to cases where death shall not ensue from the administering of the poison. If the person taking the poison dies, of course it is murder.

10. POISONING FOOD, SPRINGS, &c.

Every person who shall mingle any poison with any food, drink, or medicine, with intent to kill or injure any human being; or who shall wilfully poison any spring, well, or reservoir of water, may be punished by imprisonment in a state prison not more than ten years, or in a county jail not more than one year, or by a fine not over $500.(i)

This is a new provision in the revised statutes. At common law this offence was a mere misdemeanor. Under this section it is not necessary, to constitute the offence, that the food, drink, or medicine poisoned should have been taken or drank by the person for whom it was intended; and in this respect, the offence mentioned in this section differs from that embraced in the preceding section. Another difference is, that the intent, in the one case, must be to kill, and in the other to kill or injure. The offences mentioned in the 37th and 38th sections of the statute, are both attempts to kill by means of poison. The 37th section provides for the case of an attempt which is partially successful, inasmuch as the poison is actually taken; while to bring a case within the 38th section, nothing more is necessary than the mingling of the poison.

11. ASSAULTS WITH INTENT TO COMMIT FELONIES.

By the revised statutes it is provided that every person who shall be convicted of an assault, with an intent to commit any robbery, burglary, rape, manslaughter, or any other felony, the punishment for which assault is not therein before prescribed, may be punished by imprisonment in a state prison not more than five years, or in a county jail not exceeding one year, or by a fine not over $500.(k)

(h) 4 Car. & Payne, 364. (i) 2 R. S. 666, § 38.

(k) Ib. id. 666, § 39.