reasonable and definite limits, for it may not be easy to connect with certainty cause and effect after a long interval of time. Accordingly no person shall be adjudged by any act whatever to have killed another, if that other does not die within a year and a day after the *stroke received, or cause of death [* 236] administered, i. e., within a year, exclusive of the day on which the mortal blow was given, or the cause of death was administered (b). (702) As to the punishment of felonious homicide, it is enacted that, "whosoever shall be convicted of manslaughter shall be liable, at the discretion of the court, to be kept in penal servitude for life or for any term not less than [five] years, or to be imprisoned for any term not exceeding two years, with or without hard labour, or to pay such fine as the court shall award, in addition to or without any such other discretionary punishment as aforesaid " (c). Also, in case of any felony, punishable under the act concerning offences against the person, otherwise than with death, the court may, if it shall think fit, require the offender to enter into his own recognizances and to find sureties, both or either, for keeping the peace, in addition to any punishment by that act authorised; provided that no person be imprisoned for not thus finding sureties, for any period exceeding one year (d). It is further enacted by the same statute that, "whosoever shall be convicted of murder shall suffer death (e). II. As regards a soliciting or conspiring (f) to murder, it has been enacted (g) that, "all persons who shall conspire, confederate, and agree to II. Conspiracy murder any person, whether he be a subject of her majesty or to murder. not, and whether he be within the Queen's dominions or not, and whosoever shall solicit, encourage, persuade, or endeavour to persuade, or shall propose to any person, to murder any other person, whether he be a subject of her Majesty or not, and whether he be within the Queen's dominions or not, shall be guilty of a misdemeanor" (h). *Also, upon a conviction for "any indictable misdemeanor," [* 237] punishable under the act which concerns offences against the person, the court may, if it shall think fit, in addition to, or in lieu of any punishment by that act authorised, fine the offender, and require him to enter into his own recognizances, and to find sureties, both or either, for keeping the peace and being of good behaviour: provided that no person be imprisoned for not thus finding sureties for any period exceeding one year (i). Having in the preceding pages considered the principal crime, or public wrong, that can be committed against a private subject, namely, by destroying or by conspiring to destroy his life, I proceed to inquire into such other criminal acts as more peculiarly affect the security of his person, while living. Acts of violence directed against the person, such as will now be treated of, are for the most part punishable in accordance with the provisions of the statute law. Every offence, indeed, against the person, which experience has brought to notice, or which ingenuity can suggest, has been thus expressly provided for, although for the definition of an offence, the necessary ingredients therein and rules concerning it, the criminal pleader often finds himself remitted to our ancient customary law, as expounded by lord Coke in his Third Institute, and annotated by distinguished writers. The commentator upon crown law must therefore, in treating of specific offences, avail himself when practicable of statutory language (for which synonymous expressions cannot safely or usefully be substituted), recurring as occasion may require to the unwritten law-the Treatises and reports-with a view to amplifying and illustrating his subject. In the remainder of this chapter will be considered: 1st. * Attempts to commit murder; 2ndly. Acts causing or tending to [* 238] cause danger to life or bodily harm; 3rdly. Assaults, and some offences akin thereto; 4thly. Offences against females; and lastly, Unnatural offences. III. Attempts to III. Each of the undermentioned acts (j) done with intent () to commit murder is indictable and punishable (1) as below commit murder. mentioned. 1. The administering to, or causing to be administered to, or taken by any person, any poison or other destructive thing, or the wounding (m), or causing any grievous bodily harm to any person, by any means whatsoever (n). 2. The destroying or damaging any building by the explosion of gunpowder or other explosive substance (0). 3. The setting fire to any ship or vessel, or any part thereof, or any part of the tackle, apparel, or furniture thereof, or any goods or chattels being therein, or casting away or destroying any ship or vessel (p). 4. The attempting to administer to, or attempting to cause to be [* 239] administered to, or taken by any person, any poison or other destructive thing, or shooting at any person, or by drawing a trigger, or in any other manner, attempting to discharge any kind of loaded arms at any person, or attempting to drown, suffocate, or strangle any person, whether any bodily injury be effected or not (g). 5. The attempting, by any means other than those specified in any of the last preceding paragraphs, to commit murder (r). (703) (j) An attempt to commit a crime may be indictable at common law. R. v. Higgins, 2 East, 5; R. v. Vaughan, 4 Burr. 2494. (k) Of which intent the jury are to judge, aided by the presumption that a man intends to do that which is the necessary or natural consequence of his act. (7) In connection with the punishment of any felony (hereinafter specified) under the statute concerning offences against the person (24 & 25 Vict. c. 100), reference must be made to s. 71, cited ante, p. 236. (m) If, upon the trial of an indictment for any felony, except murder or manslaughter, where the indictment alleges that the accused did cut, stab, or wound any person, the jury be satisfied that the defendant is guilty of the cutting, stabbing, or wounding charged in the indictment, but are not satisfied that the defendant is guilty of the felony therein charged, the jury may acquit of the felony, and return a verdict of guilty of the misde meanor. 14 & 15 Vict. c. 19, s. 5. (n) 24 & 25 Vict. c. 100, s. 11. Punishment: penal servitude for life, or for not less than five years; or imprisonment for any term not exceeding two years, with or without hard labour, and with or without solitary confine (703) An attempt to murder is only a misdemeanor, unless a special statutory provision makes it felony. State v. Danforth, 3 Conn. 112; O'Leary v. People, 4 Park. 187; State v. Boyden, 13 Ired. (N. C.) 505; Phillips v. Kelley, 29 Ala. 628; Com. v. Barlow, 4 Mass. 439. IV. Criminal acts next in order to be noticed are such as cause, or tend to cause, danger to life, or bodily harm. Acts referable to this class have become IV. Acts causing more diverse in kind, and more complex in their nature than of bodily harm, &c. old, and hence the legislature has deemed it expedient to specify each of such offences, and to assign to each of them its punishment. Mayhem, mayhemium, is an offence known to our common law, and was in part considered in the preceding volume as a civil injury: but it is also looked upon in a criminal light, being an atrocious breach of the peace, and tending to deprive the sovereign of the aid and assistance of his subjects. For mayhem is properly defined to be the violently depriving another of the use of such of his members as may render him the less able in fighting, either to defend himself, or to annoy his adversary (s). And therefore, the cutting off, or disabling, or weakening a man's hand or finger, or striking out his eye or fore-tooth, or depriving him of those parts the loss of which in all animals abates their courage, are held to be mayhems. But the cutting off his ear, or nose, or the like, is not held to be mayhem at common law; because this does not weaken, but only disfigures him. By the ancient law of England, he who maimed any* man whereby [* 240] he lost any part of his body, was sentenced to lose the like part; membrum pro membro (t). But this went afterwards out of use: partly because the law of retaliation, as was formerly shown (u), is at best an inadequate rule of punishment; and partly because upon a repetition of the offence, the punishment could not be repeated. So that, by the common law, as it for a long time stood, mayhem was only punishable with fine and imprisonment (x); unless, perhaps, the offence of mayhem by castration, which all our old writers held to be felony: "et sequitur aliquando pœna capitalis, aliquando perpetuum exilium, cum omnium bonorum ademptione" (y). (704) But subsequent statutes put the crime and punishment of mayhem more out of doubt. For first, by statute 5 Hen. 4, c. 5, to remedy a mischief that then prevailed of beating, wounding, or robbing a man, and then cutting out his tongue, or putting out his eyes, to prevent him from giving evidence against the offender, this offence was declared to be felony, if done of malice prepense; that is, as sir Edward Coke (z) explains it, voluntarily, and of set purpose, though done upon a sudden occasion. Next, in order of time, was the statute 37 Hen. 8, c. 6, which directed that if a man should maliciously and unlawfully cut off the ear of any of the king's subjects, he should not only forfeit treble damages to the party grieved, to be recovered by action of trespass at common law, as a civil satisfaction; but also 107. by way of fine to the king, (8) Britt. 1. 1, c. 25; 1 Hawk. P. C. 111. (t) 3 Inst. 118. "Mes, si la pleynte, soit faite de femme qu'avera tolle a home ses membres, en tiel case perdra le feme la une meyn par jugement, come le membre dount ele avera trespasse." Brit. c. 25. (u) Ante, p. 8. (704) The common-law offense of mayhem is not generally considered felony in this country; unless, perhaps, in cases of mayhem by castration. Com. v. Lester, 2 Va. Cas. 198; Com, v. Newell, 7 Mass. 245; Adams v. Barrett, 5 Ga. 404; see State v. Thompson, 30 Mo. 470; State v. Absence, 4 Port. (Ala.) 397. As to the statutory offense, see Com. v. Langacke, 1 Yeates (Penn.), 417; Eskridge v. The State, 25 Ala. 30; State v. Crawford, 2 Dev. (N. C.) 425; Chick v. The State, 7 Humph. (Tenn.) 61; United States v. Scroggins, 1 Hemp. 478. which was his criminal amercement. By far the most severe and effectual, however, of former statutes for the repression of mayhem was the 22 & 23 Car. 2, c. 1, called the Coventry act; being occasioned by an assault on sir John Coventry in the street, and slitting his nose, in *revenge (as was [* 241] supposed) for some obnoxious words uttered by him in parliament. By this statute it was enacted, that if any person should of malice aforethought, and by lying in wait, unlawfully cut out or disable the tongue, put out an eye, slit the nose, cut off a nose or lip, or cut off or disable any limb or member of any other person with intent to maim or to disfigure him; such person, his counsellors, aiders, and abettors, should be guilty of felony (a). Offences involving or akin to mayhem are now punishable under various sections of the 24 & 25 Vict. c. 100, constituting each of the undermentioned acts if done "unlawfully and maliciously" (b), a felony: 1. The preventing or impeding any person, being on board of or having quitted any ship' or vessel in distress, or wrecked, stranded, or cast on shore, in his endeavour to save his life, or preventing or impeding any person in *his endeavour to save the life of any such person as aforesaid (c). [* 242] 2. The wounding, or causing grievous bodily harm, by any means whatsoever, to any person, or shooting at any person (d), or, by drawing a trigger, or in any other manner, attempting to discharge any kind of loaded arms (e) at any person, with intent, in any such case, to maim, disfigure, or disable any person, or to do some other grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person (ƒ). 3. The administering to, or causing to be administered to, or taken by any other person, any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm (g). (a) On this statute Mr. Coke, a gentleman of Suffolk, and one Woodburn, a labourer, were indicted in 1722; Coke for hiring and abetting Woodburn, and Woodburn for the actual fact of slitting the nose of Mr. Crispe, Coke's brother-in-law. The case was somewhat singular. The murder of Crispe was intended, and he was left for dead, being terribly hacked and disfigured with a hedgebill; but he recovered. Now the bare intent to murder was no felony; but to disfigure, with an intent to disfigure, was made so by this statute; on which they were therefore indicted. And Coke, who was a disgrace to the profession of the law, had the effrontery to rest his defence upon this point, that the assault was not committed with an intent to disfigure, but with an intent to murder: and therefore not within the statute. But the court held, that if a man attacks another to murder him with such an instrument as a hedge-bill, which cannot but endanger the disfiguring him; and in such attack happens not to kill, but only to disfigure him; he might be indicted on this statute; and it should be left to the jury to determine whether it were not a design to murder by disfiguring, and consequently a malicious intent to disfigure as well as to murder. Accordingly the jury found the accused guilty of a previous intent to disfigure, in order to effect their principal intent to murder, and they were both condemned and executed. 16 St. Tr. 53. (b) As to the legal significance of the words "unlawfully and maliciously," see R. v. Schofield, 31 St. Tr. 1035; R. v. Salmon, Russ. & Ry. 26. (c) S. 17. Punishment: penal servitude for life, or for not less than five years,—or imprisonment for any term not exceeding two years, with or without hard labour, and with or without solitary confinement. (d) By the 16 & 17 Vict. c. 107, s. 249, any person maliciously shooting at any vessel belonging to the royal navy, or in the revenue service, or at any person duly employed for the prevention of smuggling, is guilty of felony. (e) By 24 & 25 Vict. c. 100, s. 19, " any gun, pistol, or other arms which shall be loaded in the barrel with gunpowder or any other explosive substance, and ball, shot, slug, or other destructive material, shall be deemed to be loaded arms within the meaning of the act, “although the attempt to discharge the same may fail from want of proper priming or from any other cause." (f) S. 18. (g) S. 23. for any term Punishment: ut supra, n. (c). Punishment: penal servitude not exceeding ten nor less than 4. The burning, maiming, disfiguring, disabling, or doing any grievous bodily harm to any person by the explosion of gunpowder or other explosive substance (h). * 5. The causing any gunpowder or other explosive substance to [*243] explode, or sending, or delivering to, or causing to be taken or received by any person any explosive substance, or any other dangerous or noxious thing, or putting or laying at any place, or casting or throwing at or upon, or otherwise applying to any person, any corrosive fluid or any destructive or explosive substance, with intent in any of the cases aforesaid to burn, maim, disfigure, or disable, or to do some grievous bodily harm to any person, whether any bodily injury be effected or not (i). 6. The placing or throwing into, against, or near any building, or vessel, any gunpowder, or other explosive substance, with intent to do any bodily injury to any person, whether or not any explosion takes place, and whether or not any bodily injury be effected (k). 7. The putting upon any railway any wood, stone, or other thing, or taking up, removing, or displacing any rail, sleeper, or other thing belonging to any railway, or turning, moving, or diverting any points or other machinery belonging thereto, or showing, or removing any signal or light, upon or near to any railway, or doing or causing to be done any other thing, with intent to endanger the safety of any person travelling or being thereupon (7). 8. The throwing at or causing to fall upon any engine or carriage, used upon any railway, any wood, stone, or *other thing, with intent to injure [* 244] or endanger the safety of any person being upon or in such engine, or carriage, or any other engine, or carriage, belonging to the train (m). 9. The attempting by any means whatsoever, to choke, suffocate, or strangle any person, or attempting by any means calculated to choke, suffocate, or strangle, to render any other person insensible, unconscious, or incapable of resistance (n). Whipping may also be inflicted under 26 & 27 Vict. c. 44. 10. The unlawfully applying or administering to, or causing to be taken by, or attempting to apply or administer to, or to cause to be administered to or taken by, any person, any chloroform, laudanum, or other stupefying or overpowering drug, matter, or thing,—with intent in any of such cases thereby to enable any person to commit any indictable offence (0). five years,-or. imprisonment for any term net exceeding two years, with or without hard labour. If, upon the trial of any person for any felony under the above section, the jury shall not be satisfied that such person is guilty thereof, but shall be satisfied that he is guilty of a misdemeanor (post, p. 244), they may acquit the accused of such felony, and find him guilty of the misdemeanor. S. 25. (h) S. 28. Punishment: penal servitude for life, or for not less than five years, or imprisonment for any term not exceeding two years, with or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping. (i) S. 29. Punishment; ut supra. (k) S. 30. Punishment: penal servitude for any term not exceeding fourteen nor less than five years,-or imprisonment for any term not exceeding two years, with or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping. (1) S. 32. Punishment: penal servitude for life, or for not less than five years,-or imprisonment for any term not exceeding two years, with or without hard labour, and, if a male under the age of sixteen years, with or without whipping. (m) S. 33. Punishment: penal servitude for life, or for any term not less than five years, or imprisonment for any term not exceeding two years, with or without hard labour. (n) S. 21. Punishment: ut supra. In an indictment framed upon the above or any similar section, it may be expedient to insert several counts varying the statement of the overt act and of the intent. (0) S. 22. Punishment: ut supra. |