[Add a niously to ravish and carnally know, and other wrongs to the said C. D. then and there did, against the form of the statute, &c. and against the peace, &c. count for a common assault] (t). Indictment for an Assault with intent to commit an unnatural Crime. 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, did make an assault, and him the said C. D. did then and there beat and ill-treat, with intent then and there feloniously to commit with the said C. D. the abominable crime called buggery, against the order of nature, against the form of the statute, &c. and against the peace, &c. [Add a count for a common assault.] 4. Assaults aggravated by the Employment or Office of the Party assaulted.]-The other assaults enumerated in 9 G. IV. c. 31, s. 25, above recited, may fall under this head. In support of an indictment for an assault on a peace officer, it is not necessary to prove his appointment; but evidence that he was accustomed to act as such, and was known to be such when assaulted, as by having produced his staff, or by being generally known to be a constable of the place (u), or by having declared his intention to arrest in the queen's name (v), and being in the legal discharge of his duty at the time, will suffice (w). her in order to commit the statutable misdemeanour of carnally knowing her (9 G. IV. c. 31, s. 17), is not an assault if her consent appear; for the misdemeanour, if completed, would not include an assault on account of the consent. Consent would put an end to the charge if the misdemeanour had been completed. To constitute an assault, such an act should be proved as could not be justified, if in an action for it license were pleaded, Reg. v. Meredith, 8 C. & P. 589, Lord Abinger. It should be remembered, that the register of baptism taken singly is not sufficient_evidence to prove the child's age, R. v. Wedge, 5 C. & P. 298. See Wihen v. Law, 3 Stark. 63. (t) It is sufficient if the defendant is found guilty of the "misdemeanour and offence in the indictment specified," R. v. Powell, 2 B. & Ad. 75; 7 & 8 W. IV. and 1 V. c. 42, s. 11, does not apply. Though attempting carnally to know a girl between ten and twelve years old is not an assault if she consent, it is a misdemeanour which may be thus in dicted, "unlawfully did put and place the private parts of him the said against the private parts of her the said ; she the said then and there being above the age of ten years and under the age of twelve years, and did thereby then and there unlawfully attempt and endeavour carnally to know and abuse the said against the peace, &c." Reg. v. Martin, 9 C. & P. 215 (Patteson, J.). The indictment not being for felony, the usage acted on is, that the prosecutrix's counsel should only inquire, generally, whether a complaint was made by the prosecutrix of ill treatment by the prisoner, leaving the prisoner's counsel to bring before the jury the particulars of that complaint, Reg. v. Walker, 2 M. & Rob. 212. Parke, B., questioned the sense of the rule. (u) Gordon's case, 1 Leach, 518. (w) Berryman v. Wise, 4 T. R. 366, after citing Gordon's case, 1 Leach, 516. Also R. v. Rickets, 3 Camp. 68; Carnegie v. Collins, 1 Ad. & E. 695; 3 Nev. & M. 703. Assaults on Masters or their Bailiffs, &c. by Servants.]—The special enactment of 5 El. c. 4, s. 21, still exists for the imprisonment for a year or less of any servant, workman, or labourer who shall wilfully make assault or affray on his master or mistress, or on any other who shall at the time have the charge or oversight of any such servant, or of the work wherein he is appointed or hired to work, on conviction, before two justices, &c. by confession or oath of two honest men. Indictment for assaulting a Constable in the Execution of his Duty. That A. B. late of, &c. on, &c. with force and arms, at, &c. in and upon one C. D. then and there being one of the constables of the said parish of - in the county of and in the due execution of his duty as such constable, then and there also being, did make an assault, and him the said C. D. did then and there beat, wound, and ill-treat, and other wrongs to the said C. D. then and there did, against the form, &c. and against the peace, &c. [Add a count for a common assault.] Indictment for an Assault with intention to obstruct the Apprehension of a party charged with an Offence (x). That A. B. late of, &c. on, &c. with force and arms, at, &c. in and upon one C. D. a subject of our said Lady the Queen then and there being, wilfully and unlawfully did make an assault, and him the said C. D. did then and there beat, wound, and ill-treat, with intent in so doing wilfully and unlawfully to obstruct, resist, and prevent the lawful apprehension and detention of him the said A. B. for a certain offence, to wit, for, &c. [here state the offence with which the defendant was charged] for which said offence he the said A. B. was then and there liable by law to be apprehended, imprisoned, and detained, against the form of the statute, &c. and against the peace, &c. (x). And the jurors, &c. that the said A. B. heretofore, to wit, on, &c. aforesaid, with (a) The following count which formed the fourth in R. v. Fraser, 1 Mood. C. C. 419, will (though for cutting and wounding) be useful in framing indictments for common assaults, with intent to obstruct arrest : "in and upon said J. C. in the peace of God and our said Lady the Queen, then and there being, unlawfully, &c. did make an assault, and then and there unlawfully, &c. did cut and wound said J. C. in and upon the head and face of said J. C., with intent to resist and prevent the lawful apprehension and detainer of him the said M. F., for a certain offence by him committed, for which he the said M. F. was then and there liable by law to be apprehended and detained, that is to say, for then and there wilfully and maliciously committing damage and injury upon certain plants and roots then and there growing in a certain garden of and belonging to H. I., there situate, against the statute, &c. and against the peace, &c." The prosecutor, a metropolitan police constable, having no warrant, attempted to apprehend the prisoner under 7 & 8 G. IV. c. 29, s. 63, for an offence for which he might be convicted before a justice of peace by s. 42 and 43 of that act (and also by 7 & 8 G. IV. c. 30, s. 21, 22, and 24, and 28), viz. for wilfully and maliciously plucking and cutting flowers from plants or roots in a garden, with intent to steal the flowers; and a conviction on the above count was held good. force and arms, at, &c. aforesaid, in and upon the said C. D. wilfully and unlawfully did make an assault, and him the said C. D. did then and there beat, wound, and ill-treat, with intent in so doing wilfully and unlawfully to obstruct, resist, and prevent the lawful apprehension and detention of him the said A. B. for a certain offence before them committed, to wit, at, &c. aforesaid, for the committing of which said last-mentioned offence he the said A. B. was then and there liable by law to be apprehended, imprisoned, and detained, against the form, &c. and against the peace, &c. [Add a count for a common assault.] Indictment for assaulting a Gamekeeper in the Execution of his Duty. (See post, Sect. XVI. of this Chapter.) Indictment for assaulting a Collector of a Turnpike Toll in the Execution of his Duty (y). That A. B. late of, &c. on, &c. with force and arms, at, &c. in and upon one C. D. then and there being one of the collectors and receivers of the tolls payable by virtue of a certain act of parliament made in the third year of the reign of our said lady the Queen, intituled "An Act to amend the general laws now in being for regulating turnpike roads in that part of Great Britain called England," in the due execution of his office of collector and receiver of the said tolls, then and there being, did make an assault, and him the said C. D. so being in the execution of his said office as aforesaid, then and there did beat, wound, and ill-treat, and other wrongs, &c. against the peace, &c. [Add a count for a common assault.] Indictment for an Assault on account of Money won at a Game of Dice (9 A. c. 14, s. 8) (z). That A. B. late of, &c. on, &c. with force and arms, at, &c. in and upon one C. D. did make an assault, and him the said C. D. did then and there beat, wound, and ill-treat, on account of certain money before that time, to wit, on, &c. at, &c. won by the said C. D. of the said A. B. by then and there gaming, playing, and betting, at a certain game of dice called hazard, against the form of the statute, &c. and against the peace, &c. [Add a count for a common assault.] Indictment for Assault in pursuance of Conspiracy to raise Wages (a). That A. B. late of, &c. C. D. late of, &c. E. F. late of, &c. on, &c. at, &c. did amongst themselves conspire, combine, confederate and agree together, to raise the rate of wages, then usually paid to workmen and labourers in the art, mystery, and business of cotton spinners, and that the said A. B., C. D. and E. F., in pursuance of the said conspiracy, on the day and year aforesaid, with force and arms at the parish aforesaid, in the county aforesaid, in and upon one J. N. in the peace of (y) This offence, under 3 G. IV. c. 126, s. 139, is punishable summarily by a forfeiture of 101.; but that provision does not destroy the right of indicting at common law. See p. 287. (2) This offence is by the act made punishable with two years' imprisonment, and the forfeiture of all the offender's goods and chattels. (a) Archb. Cr. Pl. and Ev. 6th ed. 387. X God and our lady the Queen, then and there being, then and there did make an assault; and him the said J. N. then and there did beat, wound, and ill-treat, and other wrongs to the said J. N. against the form of the statute, and against the peace, &c. Another count should be added, stating an assault “in pursuance of a certain conspiracy before then entered into by the said A. B., C. D. and E. F., to raise the rate of wages of workmen and labourers in the art, mystery, and business of cotton spinners." [Add a count for a common assault.] The conspiracy together of the parties charged must be shown, as also that the assault was committed in pursuance of such conspiracy and in connexion with it. The punishment of the offence is imprisonment with or without hard labour, for not exceeding two years, with power to fine also, and require sureties to keep the peace (b). SECTION III. BARRATRY. BARRATRY is the habitual moving and exciting, or maintaining suits and quarrels, either at law or otherwise (c). It does not consist in any single act, however flagrant, but in a succession of acts, constituting a course of behaviour (d). It is not, therefore, necessary to specify in the indictment the particular acts on which the prosecutor relies; but the court will compel him, before the trial, to inform the defendant by a written notice of those particulars, and will exclude him from offering evidence of any others (e). Indictment for Barratry. That A. B. late of, &c. on, &c. and on divers other days and times, in the county of- (f) was and yet is a common barrator; and that he the said A. B. on the said, &c. and on divers other days and times, in the county aforesaid, divers quarrels, strifes, and controversies among the honest and quiet liege subjects of our lady the Queen, did unlawfully move, procure, stir up, and excite to the common nuisance of the liege subjects of our said lady the Queen, and against the peace, &c. The offence is punishable with fine and imprisonment; and in case of attornies, a conviction operates as a disability to practise in future. By 12 G. I. c. 29, s. 4, any attorney practising after conviction is liable, on summary complaint, to be transported for seven years. (b) 9 G. IV. c. 31, s. 25. (c) Co. Lit. 368. (d) Hawk. B. 2, c. 25, s. 59. (e) Per Ashhurst, J., in J'Anson v. Stuart, 1 T. R. 754; and see ante, p. SECTION IV. CHALLENGING AND BEARING CHALLENGES. CHALLENGES to break the peace by fighting are indictable as misdemeanours, as well in those who send, as in those who knowingly carry them. Upon the same principle, employing words or writings for the purpose of provoking another to send a challenge, where the tendency is direct and manifest, is equally indictable, even though the provocation should fail in its object (g). And no previous misconduct on the part of the individual challenged or provoked will form a defence against such an indictment, so as to entitle the defendant to an acquittal, although it will weigh with the court in determining the sentence (h). Where, indeed, a party challenged applies to the court of queen's bench for a criminal information, that extraordinary remedy will not be granted, if he shall appear to have given provocation to his adversary, but he will be left to indict at the assizes or sessions. The punishment, on conviction, is fine or imprisonment, or both, in the discretion of the court. Indictment for sending a Written Challenge. That D. O. late of, &c. not regarding the laws of this realm, and unlawfully contriving and intending to vex, injure, and disquiet one A. B. and unlawfully to expose him the said A. B. to scandal, shame, and reproach, and to cause, instigate, and provoke him the said A. B. to fight a duel with and against him the said D. O. and thereby break the peace of our said lady the Queen, on, &c. with force and arms, at, &c. unlawfully, wickedly, and maliciously did compose, write, send, and deliver, and cause and procure to be composed, written, sent, and delivered unto the said A. B. a certain address written on paper, containing a challenge to fight a duel with him the said D. O., which said written address was and is as follows [here set out the writing, with inuendos], against the peace, &c. [Second count for the libel contained in the address as post, s. 16.] Indictment for sending a Challenge inclosed in a Letter (i). That T. M. late of, &c. being a person of a wicked and malicious disposition, and wickedly and maliciously intending and designing, as much as in him lay, not only to disquiet and terrify one D. E. but also the said D. E. maliciously to kill and murder, on, &c. with force and arms, at, &c. aforesaid, did unlawfully and wickedly provoke and excite the said D. E. to fight a duel with and against him the said T. M. and that he the said T. M. a certain challenge, in the name of the said (g) R. v. Phillips, 6 East, 464. (h) R. v. Rice, 3 East, 381. (i) The venue may be laid either in the county where the challenge was written, or in that where it was received, according to its direction, R. v. Williams, 2 Campb. 506. |