at, &c. was delivered of a dead child, the same being the same child with which she was so pregnant aforesaid, and was then and there brought into peril and danger of her life; and other wrongs to her the said F. he the said A. B. then and there unlawfully, violently, and injuriously did, against the peace, &c. [Add a count for a common assault.]

Indictment for challenging a Person, at the same time holding

a drawn Sword.

That A. B. late of, &c. unlawfully, wickedly, and maliciously devising and intending to disturb, molest, and disquiet C. D. gentleman, the said C. D. being a person of good name, fame, credit, character, and reputation, and a man of a quiet and peaceful temper and disposition, and to instigate, excite, move, and provoke the said C. D. to fight a duel with him the said A. B. and to cause and procure the said C. D. to break the peace of our said Lady the Queen, on, &c. with force and arms, at, &c. then and there having and holding a drawn sword in his right hand, unlawfully, openly, wickedly, and maliciously, without any just cause or provocation whatever, did challenge, and as much as in him lay, endeavour to move, incite, instigate, and provoke the said C. D. to fight a duel with him the said A. B., by reason whereof he the said C. D. was then and there put under great fear and danger of losing his life, and other wrongs to him the said C. D. he the said A. B. then and there unlawfully, wickedly, and maliciously did, against the peace, &c. [Add a count for a common assault.]

Indictment for assaulting a Person, and taking a loaded Gun from him, levelling it at him, and using threats, &c.

That A. B. late of, &c. on, &c. with force and arms, at, &c. in and upon one C. D. in the peace of God and our said Lady the Queen then and there being, unlawfully, violently, wickedly, and maliciously did make an assault, and him the said C. D. then and there did beat, wound, and ill-treat, so that his life was greatly despaired of. And that he the said A. B. with great force and violence then and there unlawfully seized and laid hold of a certain gun, which he the said C. D. in his right hand then and there had and held, and the said gun from him the said C. D. did then and there unlawfully, and in a forcible manner, take away; and the said gun being then and there charged with gunpowder and leaden shot, the said A. B. with force and arms to, at, and against the said C. D. did point, direct, and level, and did wickedly and maliciously threaten to shoot off and discharge; and other wrongs to him the said C. D. he the said A. B. then and there violently, wickedly, and maliciously did, against the peace, &c. [Add a count for a common assault.]

Indictment for an Assault and encouraging a Dog to bite.

That T. R. late of, &c. on, &c. with force and arms, at, &c. did make an assault on one A. B. and did then and there unlawfully incite and encourage a certain dog called a mastiff, belonging to the said T. R. to bite him the said A. B. by means whereof the same dog did then and there grievously bite the said A. B. in and

upon the right leg of him the said A. B. and the said leg of him the said A. B. was thereby then and there grievously hurt, wounded, and lacerated, against the peace, &c. [Add a count for a common assault.]

Indictment for an Assault by driving a Stage Coach against
Prosecutor's Chaise.

That O. M., late of, &c. on, &c. with force and arms at, &c. in the Queen's highway, there unlawfully did assault D. M. the wife of W. M. and A. M. their daughter, then and there being in a certain carriage called a one-horse-chaise, then and there drawn by one horse, lawfully and peaceably passing and travelling in the highway aforesaid, and that the said O. M. then and there driving four horses then and there drawing a certain stage-coach in the highway aforesaid, then and there unlawfully, wilfully, furiously, and maliciously did drive the said four horses and coach towards and against the said carriage, called a one-horse-chaise, so passing in the highway aforesaid, and that the said O. M. by such driving of the said four horses and coach as aforesaid, then and there unlawfully, wilfully, furiously, and maliciously did overturn, break, damage and spoil the said carriage, called a one-horse-chaise, and thereby forced and threw the said D. M. the wife of the said W. M. and A. M. from and out of the said last-mentioned carriage, into and upon the highway aforesaid, by means whereof the said D. M. the wife of the said W. M. and A. M. were then and there severally and respectively grievously hurt, bruised, and wounded, and were put in great danger of losing their lives, against the peace, &c.

And the jurors, &c. that the said O. M. afterwards, that is to say, on, &c. with force and arms, in, &c. aforesaid, in the highway there, unlawfully, wilfully, and in the care and guidance of him the said O. M. in the highway aforesaid, towards and against a certain one-horse-chaise, then and there drawn by one horse in the highway aforesaid, wherein the said D. M. the wife of the said W. M. and A. M. were then and there severally and respectively passing and travelling in the highway aforesaid, and that the said O. M. by such driving of the said four horses, so drawing the said coach as last aforesaid, then and there unlawfully, wilfully, and maliciously, did overturn, break, damage, and spoil the said carriage, called a one-horse-chaise, and forced and threw the said D. M. the wife of W. M. and A. M. from and out of the said last-mentioned one-horse-chaise, into and upon the highway aforesaid, by means whereof the said D. M. the wife of the said W. M. and A. M. were severally and respectively grievously hurt, bruised, and wounded, and were put in great danger of losing their lives; and the said O. M. then and there unlawfully, wilfully, and maliciously did other wrongs to the said D. M. the wife of the said W. M. and A. M. against the peace, &c. [Third count for a common assault.]

Indictment for an Assault on a Chaise Driver, and overturning a Chaise with a Cart.

That one J. R. late of, &c. on, &c. with force and arms, at, &c. on the Queen's highway, there, in and upon one R. O. in a certain chaise drawn by two horses, then and there being, did make an assault, and that the said J. R. then and there driving one horse, drawing a cart, did then and there, in the highway aforesaid, unlawfully, maliciously and violently drive and force the said horse, so as aforesaid drawing the

said cart, to and against the said chaise, and by such driving and forcing did then and there, in the highway aforesaid, unlawfully and maliciously thrust, force, and impel the said cart against the said chaise, and he the said J. R. with one of the wheels of the said cart, did then and there, in the highway aforesaid, unlawfully and maliciously overturn the said chaise, in which the said R. O. then and there was as aforesaid, by means of which overturning of the chaise aforesaid, he the said R. O. then and there was grievously hurt, bruised, and wounded; and other wrongs, &c. [Second count for a common assault.]

Indictment for cruelly beating and ill-treating an Apprentice, and keeping her from Necessary Food.

That A. B. late of, &c. on, &c. with force and arms, at, &c. in and upon one E. D. a female child, of the age of ten years (j), or thereabouts, being the servant and apprentice of the said A. B. and in the peace of God and our said Lady the Queen then and there being, did make an assault, and with certain rods, whips, sticks, and cords, her the said E. D. did then and there violently, cruelly, and immoderately beat, scourge, and strike, and did then and there pull and strip, and force and compel the said E. D. to pull and strip from off the body of her the said E. D. certain clothes and wearing apparel, wherewith the said E. D. was then and there clothed and covered, so that the said E. D. was then and there nearly naked and uncovered, and her, the said E. D., as well whilst she was so covered and clothed with the said clothes and wearing apparel, as whilst she was so nearly naked and uncovered, did force and compel to work and labour violently, immoderately, and beyond her strength, in the business of the said A. B. as a silk weaver, for the space of twelve hours then next following; and her the said E. D. so working and labouring as aforesaid, did then and there shut up, confine, and keep in a certain room there for all the time aforesaid, without giving or affording to her the said

(j) In the last edition of this work it was stated in this place, that as a summary remedy by complaint to one justice, or to the sessions, or before two justices, was provided, viz. by 5 El. c. 4; 20 G.II. c. 19; 33 G. III. c. 55, in cases of ill usage of apprentices and servants by their masters, it was necessary, in order to support the above indictment, that it should appear on the face of it that the injured party was of such tender years, or so completely under the controul of the person indicted, as in a certain degree to preclude relief by the other species of protection afforded by the law, and 3 Chitt. Cr. L. 831 (stating R. v. Ridley, 2 Campb. 653), was cited. But it has been shown from that case in pages 291, 293 of this edition, that where the conduct of the master amounts to more than mere non-feasance, viz. to actual assault, as laid in the above precedent, or to any act in nature of an

assault, as compelled exposure to inclement weather, an indictment will lie at common law, though the age of the injured person be advanced beyond mere childhood to that of fifteen years. Per Lawrence, J. 2 Campb. 653.

Indeed, it may be questioned whether in any such case the original remedy by indictment is not cumulative, not being expressly taken away by that provided before the justices. See Reg. v. Gould, Salk. 381, and cases there cited; also R. v. Carlile, ante. the provisions of 5 20 G. II. c. 19, s. 3; 55, do not embrace servants not being apprentices; and the two latter acts do not (even since 4 G. IV. c. 29, s. 1,) extend to apprentices with whom more than 257. is paid.

Particularly as El. c. 4, s. 35; and 33 G. III. c.

It would, therefore, seem that the age of the party is immaterial to be stated in the above indictment.

E. D. or permitting her to have or procure sufficient meat, drink and food for her nourishment and support during that time, and other wrongs, &c. against the peace, &c. [Add a count for a common assault.]

If the circumstances justify belief that there was an intent to murder, e. g. if by premeditated, though passive negligence, a master allows a child of tender years, being unable to provide food for, or take care of itself, to perish for want of food, which as its parent or master he was bound to provide, or if by active rigour and harsh usage, even to an adult, as by confining him without food, &c. he bring about the same result (k), a count may be introduced alleging that intent, as in the precedents under the next head, in order that the prisoner, if convicted on such count, may be liable to the punishment of hard labour under 9 G. IV. c. 31, s. 25, and that the costs of the prosecution may be allowed under 7 G. IV. c. 64, s. 23.

See form of indictment for not providing servants of tender years, &c. with sufficient food, &c. post, Sect. 10 of this chapter.

Particular Assaults, how punishable under 9 G. IV. c. 31, s. 25.

3. Assaults aggravated by Intent to commit a higher Crime, as Felony.]-Assaults, with intent to commit felony, are punishable with hard labour, in addition to imprisonment and fine. In such cases, however, the intent must be expressly charged in the indictment, as evidence of the intent, where it constitutes a substantive offence, is not admissible under a general charge of assault (1). For this, among other purposes, it is enacted, by 9 G. IV. c. 31, s. 25, That where any person shall be charged with and convicted of any of the following offences as misdemeanours, that is to say, 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 (m);— Assault upon any person, with intent to resist or prevent the lawful apprehension or detainer of the party so assaulting, or of any other

(*) See R. v. Squires, 1 Russ. C. & M. 16, 426; R. v. Self, 1 Leach, C. C. 137, and the dicta of Lord Denman and Patteson, J., in Urmston v. Newcomen, 4 Ad. & E. 905; 4 Nev. & M. 454, S. C.

(1) Dict. per Lord Mansfield, 21 How. St. Tri. 1219.

(m) When a constable was called on by a collector of land tax to accompany him into the house of a person from whom he was demanding payment of an

arrear, and had reasonable ground from previous threats, &c. to expect violence, the constable was held justified in stay. ing while the collector remained to be paid, as long as there was reason to expect violence; and the owner of the house who used force to remove them was held indictable for assaulting a peace officer in the execution of his duty, R. v. Clark and Austen, 3 Ad. & El. 287; 4 Nev. & M. 671.

person for any offence for which he or they may be liable, by law, to be apprehended or detained, or of any

Assault 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 securities for keeping the peace, and the prosecutor is allowed his costs (n).

In indictments for assaults, with intent to commit felony, the question of intent is peculiarly for the consideration of the jury, who may negative the intent, and yet find the prisoner guilty of a common assault, for which he may receive judgment of fine or of imprisonment, but without hard labour. If it appears at the trial that the offence of felony, e. g., rape, was completed, by penetrating into the person to some extent though without breaking the hymen (o), the misdemeanour will be merged, and the prisoner must be acquitted, but may be detained, in order that an indictment for the felony may be preferred against him at the same session, or if that is impracticable, from the discharge of the grand jury, he should be again taken before a magistrate; who, on hearing the evidence, will re-commit the prisoner, and bind the parties over to prosecute at the next sessions or assizes (p).

The trespass incident to a felony merges in it in order to spur injured parties to bring the offender to trial for the sake of public justice, and the civil remedy by action remains after conviction or acquittal (q).

Indictment for an Assault with intent to Ravish.

That A. B. late of, &c. on, &c. with force and arms, at, &c. in and upon one C. D. (r) in the peace of God and our said Lady the Queen then and there being, did make an assault, and her the said C. D. did then and there beat, wound, and ill-treat, with intent her the said C. D. then and there against her will (s), felo

(n) 7 G. IV. c. 64, s. 23.

(0) Reg. v. Jordan and another, 9 C. & P. 118; R. v. Allen, id. 31; Rue v. Mac Rue, 8 C. & P. 641.

(p) See ante, p. 172, R. v. Harmwood, and other cases.

(q) Crosby v. Leng, 12 East, 410; Peddell v. Rutter, 8 C. & P. 337.

(r) If the female be a child under ten years of age, add here" a woman child under the age of ten years, to wit, of the age of nine years."

(s) If under the age of ten years, lay

the intent to be "with intent her the said C. D. then and there unlawfully and feloniously to carnally know and abuse."

Carnally knowing a child under ten is a felony, which does not include an assault under 1 V. c. 85, s. 11, if her consent appears, so that the offender must be either convicted of the felony charged or acquitted, Reg. v. Banks, 8 C. & P. 574, Patteson, J.

If the child be above ten, and under twelve years old, the laying hands on