by a distinct section, to be enforced by "action or information," without mentioning "indictment" (o), a prosecutor has his option of proceeding for the penalty in the mode provided by the statute, or of indicting for disobedience to the prohibition; on the same principle that if a statute only permits, enjoins, or prohibits an act, without annexing any specific penalty or punishment, an indictment at common law would be the proper mode of proceeding to punish the offence of disobedience or infringement (p). When a statute only inflicts an additional penalty or punishment for an offence previously indictable, and does not prohibit the former manner of proceeding at common law, the new penalty or punishment is cumulative, and the prosecutor may proceed either according to the common law, or on the statute (q). On this principle it is clear that the father of a bastard child might, before 4 & 5 W. IV. c. 76, s. 69, either be indicted for disobeying the order of justices for its maintenance, or be punished at the option of the parish aggrieved, under 49 G. III. c. 68, according to the summary process which it provided (r). So constables and parish officers may either be punished at common law by indictment for neglect of duty and disobedience of the orders of justices, or summarily under 33 G. III. c. 55 (s).

On the other hand, 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 (t).

Cases in which it is doubtful whether Indictments lie.]-As to the indictable quality of acts to which no statute applies, the following may serve as examples; it has been made a question, whether a man, in the prosecution of a legal calling, as, distributing hand-bills of an innocent description on a causeway, by means of which, however, passengers were to a certain degree obstructed and impeded, commits an indictable offence (u)? The like of a stage-coachman, or driver of

(0) See as to this, 2 Hale's P. C. 171. (p) This may be collected from the judgments in R. v. James Harris, 4 T. R. 202, where disobedience to an order which the king in council was empowered by statute to make was held indictable at common law. See Reg. v. Crossley, 10 Ad. & E. 132; S. C. 2 P. & D. 319; Collins v. Carnegie, 1 Ad. & E. 703.

(q) R. v. Robinson, 2 Burr. 799; relied on per Cur. 4 T. R. 205, and 3 B. & Ald. 163.

In

(r) R. v. Carlile, 3 B. & Ald. 161; R. v. Hollis, 2 Stark. Cr. P. 536. dicting where there is another remedy, is said by Lord Mansfield to carry an appearance of oppression, R. v. Boyall, 2 Burr. 834.

R. v. Boyall, 2 Burr. R. 832. (t) R. v. Douse, 1 Ld. Raym. 672; R. v. Storr, 3 Burr. R. 1699.

(u) R. v. Sermon, 1 Burr. R. 516; R. v. Russell, 6 East, R. 427.

a waggon, who, though plying in the way of his lawful calling, for passengers or loading, thereby to some degree obstructs a public highway? But it has been recently holden, that any unauthorized obstruction of a highway, to the annoyance of the subject (v), 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; 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 passengers, it is indictable (w). But if works carried on in a harbour render it in some extreme cases less secure, consequences so slight, uncertain, and rare, are not the subjects of indictment (x).

Frauds committed in the way of trade have also frequently given occasion to doubts respecting the extent of the remedy by indictment. It seems to have been decided that the delivering short measure of any commodity sold, e. g., the selling as two chaldrons of coals, a less quantity, is not an indictable offence, being a mere imposition on an individual whose own carelessness neglected measuring the article; but using false weights, measures, tokens, or marks (y), is an indictable offence, because that is a general plan, or conspiracy, calculated to defraud numbers (z). 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 said to be indictable by statute in the case of goldsmiths), 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 (a). So 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 another kind, or inferior quality, commits an act to be remedied by private action, not by a criminal indictment (b). And on 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., that the article not being laid in the indictment to be

(e) R. v. Cross, 3 Campb. 227; R. v. Vantandillo, 4 M. & S. 73.

(w) R. v. Vantandillo, 4 M. & S. 73; R. v. Pedley, 1 Ad. & El. 822; 3 Nev. & M. 627.

(x) R. v. Tindall and others, 6 Ad. & E. 143; 1 Nev. & P. 719.

(y) Or if such methods are taken to cheat and deceive, as people cannot by ordinary prudence be guarded against,

the offence is indictable, per Wilmot, J., 2 Burr. 1129.

(z) R. v. Wheatley, 2 Burr. 1125; 1 Bla. R. 273; 1 Leach, 489, S. C.; R. v. Osborne, 3 Burr. R. 1697; R. v. Dunnage, 2 Burr. 1121.

(a) R. v. Bower, East, P. C. 820; Cowp. R. 323.

(b) R. v. Dunnage, 2 Burr. R. 1131; R. v. Channel, Stra. 793; East, P. C. 818.

U

delivered for the food of man, the act was not indictable. He also observed, that had it been laid that the mill in question was a soke mill, to which the inhabitants of the vicinage were bound to resort, and that the miller, abusing the confidence of his situation, had made it a colour for practising a fraud, this might have presented a different aspect; but that as it there appeared to be merely an individual fraud, it was not an indictable offence (c).

Deceits also in commercial dealings when no artifice is used but such as ordinary caution might provide against, present many doubtful cases. Thus, the mere offer of a cheque on a banker as a good one, when in fact the person offering it had no money in the banker's hands, and knew that he had none, was long holden to be no fraud indictable at common law, though afterwards held otherwise under the statute 30 G. II. c. 24 (now replaced by 7 & 8 G. IV. c. 29, s. 53) (d). A mere false assertion, without some artful contrivance, does not constitute such a fraud (e). 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 commit a fraud indictable at common law (ƒ). But when any message, or note, pretending to be written by any person, or other artful contrivance is employed, the deception amounts to more than a mere wicked falsehood; and becomes of the class of those artful contrivances, against which ordinary caution cannot be expected to provide. And where two or more persons have confederated together to impose on a tradesman, though only by an affirmance of a fact which was not true, they are clearly liable to indictment for a conspiracy, although they may not be indictable for the fraud at common law (g).

(c) R. v. Haynes, 4 M. & S. 214.

(d) R. v. Jackson, 3 Campb. 370, post, Sect. 5 of this Chapter, and other cases. Indictment for "falsely pretending that a certain promissory note was a valuable security for 21., by means of which false pretence, he fraudulently obtaired from A. B. 187. 158. ; whereas it was not a valuable security." Held bad for not showing but that the note was the prisoner's own promissory note, or that he knew it to be worthless. It might have sufficed had it been stated to be the "promissory note of another." Patteson, J., Wickham v. Regina (in

error), 2 P. & D. 333.

The indictment on 7 & 8 G. IV. c. 29, s. 53, may allege the false pretence to be" that the cheque was a good and genuine order for the payment of, and of the value of, the sum specified," R. v. R. C. C. Smythe Parker, 2 Mod. C. C. 1.

(e) R. v. Lara, 1 Leach, 746. As to naked lie, Foster v. Charles, 6 Bing. 396; 4 Mos. & P. 61; R. v. Harvey & Chapman, 2 B. & Cr. 257.

(f) R. v. Bryan, 2 East, P. C. 819. (g) R. v. Mackartney, Salk. 286; 2 East, P. C. 828, S. C.

The indictable character of acts clandestinely done, which may eventually bring burthens upon parishes, has been the subject of much doubt and controversy, ex. gr., privately bringing into a parish, and secreting, a single woman with child, which child is afterwards born a bastard there, and so (before 4 & 5 W. IV. c. 76, s. 71) chargeable to the parish, that not being the place of the mother's settlement (h). 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 the health of a servant or apprentice by the mere non-feasance of a master or mistress, could be made the subject of an indictment. It should seem on the whole, however, that though ill usage of certain apprentices is subjected to the summary jurisdiction of two magistrates out of session by 20 G. II. c. 19, and 33 G. III. c. 55, and to another species of jurisdiction in sessions, by 5 Eliz. c.4-yet that, if such servant or apprentice be of tender years, and entirely under the control of such master or mistress, and the master or mistress is guilty of non-feasance towards it, e. g., in withholding proper nourishment or warmth, such misbehaviour will be a proper subject for indictment at common law (i), and that if the misbehaviour of the master or mistress amounts to more than such mere non-feasance, viz., to active cruelty of any kind by assault, &c. or to any act in the nature of an assault, for instance, forced exposure to inclemency of weather, such an indictment will lie, though the age of the sufferer may be far past childhood (j). In fact, such indictments are commonly entertained, especially with respect to parish apprentices, on the prosecution of parish officers.

Jurisdiction of the Sessions over Misdemeanours.]—The court of quarter sessions has jurisdiction to try and determine all offences whatsoever inferior to felony, except forgery, when indictable as a misdemeanour, and perjury when indicted 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 cases of perjury within stat. 5 El. c. 9, might be instituted at sessions (k). But perjury is, in fact, never prosecuted at

(h) R. v. Chandler, 2 Ld. Raym. 1368. (i) See R. v. Ridley, 2 Campb. 650. Per Lawrence, J., and see form of indictment in that case, s. 10, of this chapter. See as to cumulative remedy, R. v. Carlile, ante.

(j) R. v. Ridley. The girl there illtreated was fifteen years old.

(k) Qu. if 5 Eliz. c. 9, in force. See 23 G. II. c. 11, S. 1. See ante, P.

140.

sessions (except in Middlesex, under the commission of oyer and terminer, peculiar to that county), and the law relating to it as well as forgery, is omitted, as foreign to the design of this work (7).

1. Common Assaults.

SECTION II.
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, under circumstances denoting a present intention, coupled with a present ability (m) to do such injury, 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 loaded gun at a person within the distance to which it will carry, though without firing it (n), striking at, or 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 (0). 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; e. g., spitting in a man's face, forcibly stripping him of his clothes, or even touching him, if done with the purpose to insult him. And the assault and battery will be equally committed, whether by actually employing the hand, or by any other means, as giving cantharides (p), or if a dog be set on another, or if a

(1) See ante, p. 140, 158.

(m) Selwyn's N. P. 6th ed. 26. See Stephens v. Myers, 4 C. & P. 349. Tindal, C. J.

(n) The fact of firing a gun into a room of A.'s house with intent to shoot A., the prisoner supposing him to be in the room, will not support a charge of shooting at A. if he is shown not to be in the room, or within reach of the shot, Reg. v. Lovel, 2 M. & Rob. 39. (Gurney, B.)

(0) Hawk. B. 2, c. 62, s. 1.

(P) Indictment that on, &c. at, &c.

prisoner unlawfully assaulted M. A. W. and then and there unlawfully, knowingly, wickedly, and maliciously did administer to and cause to be administered to and taken by the said M. A. W. a large quantity, that is to say, two scruples of cantharides, the same then and there being a deleterious and destructive drug, with intent thereby to injure the health of said M.A. W., and the said M. A. W. in consequence became sick, sore, diseased and disordered in her body, insomuch that her life was despaired of, to great damage. Count