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with a certain offensive weapon, to wit, a (c) pistol, which he the said A. B. in his right hand then and there bad and beld, with a felonious intent the monies of the said C. D. from the person and against the will of the said C. D. feloniously and violently (d) to steal, take, and carry away, against the form, &c. and against the peace,
64. For a felonious assault with intent to spoil cloaths, fc.
(Commence as in pr. 1.) In a public street and highway there, called - M, in and opon one E. M. spinster, in the said public street and bighway, then and there being, wilfully, maliciously, and feloniously did make an assault, with an intent to tear, spoil, cut, and deface the garments and cloaths of her the said E. M. and, with force and arms, did, in the said public street and highway, then and there (e) wilfully, maliciously, and feloniously tear, spoil, cut, and deface one printed linen gown of the value of thirty shillings, of the goods and chattels of the said E. M. being part of the garments and
the postillion, he was acquit- tinued to do, and the men were ted upon the same evidence; taken, and, though no demand since it appeared that the in- of money was made they were tent was not to rob the post- convicted and transported. boy, for when he presented the (c) In Sharwin's case, East. pistol to him, and bade him P. C. 421. it was holden that stop, he made no demand an allegation of an assault with upon him, but went up to the ano offensive weapon called a person in the chaise, East, P. wooden staff, was satisfied by C, 418. In the case of Trusty evidence of an assault with a v. Howard, Sess, Pap. 735. the a stone, see p. 85. defendants were indicted for a (d) In Monteth's case the in. felonious assault with an offen- dictment was holden to be desive weapon, with intent to rob; fective for onsitting this word. it appeared that one of them, Leaclı, 890. Sess. Pap. 1300. presenting a pistol to the pro- and 1325. East, P. C. 420. secutor, bade hin stop, which for the indictment must allege he did, but called out for assist- an intent to rob, which always ance; on this, the prisoners includes force and violence. threatened to blow his brains (e) It must appear that the out if he called out any more, assault and spoiling were conwhich he nevertheless con tinuons, see p. 55.
cloaths of her the said E. M. on her person then and there being in wear, against the form, &c. and against the peace, &c. (f).
By stat. 6 Geo. 1. c. 23. s. 11. it is enacted, that if any person or persons sbail, at any time or times, wilfully and maliciously assault any person or persons, in the public streets or highways, with an intent to tear, spoil, cut, burn, or deface the garmients and cloaths of such person or persons, that then all and every such person or persons so ottending, being thereof lawfully convicted, shall be adjudged to be guilty of felony, and every such felon shall be subject and liable to like pains and penalties as in cases of felony ; and the courts by and before whom he, she, or they shall be tried, shall have full power and authority of transporting such felons for the space of seven years.
65. Indictment for feloniously assaulting a privy counsellor
in the execution of his office (g). (Commencement as in pr, 1.) In and upon the right honourable Sir E. H. knight, one of the privy counsellors of our said lord the king, and in the due execution of his said office in council then and there being, feloniously did make an assault, and him the said Sir E. H. did then and there feloniously strike and wound, against the form, &c, and against the peace, &c.
(f) It has been holden, is enacted, that if any personi that to support an indictment shall attempt to kill, or unlaw. under this statute, it must ap- fully assault, strike, or wound pear that the primary intention any of her majesty's privy of the defendant was to injure counsel, in the execution of his the cloaths, and that if his in- office in council, or in any comtention was to injure the perë mittee of council, being conson the case is not within the victed thereof in due form of statute, R. v. Williams, Leach, law, he is thereby declared to 426.; but qu. as to the princi. be a felon, and shall suffer ple of this opinion, and see R. death, as in cases of felony, v. Coke and Woodburn, 6 St. without benefit of clergy. Tr. 804.
The occasion of the act was (8) By stat. 9 Ann, C. 16. it this, Robert Harley, esq. (after
66. For challenging to fight, on account (h) of money won
at play, under the stat. 9 inn. c. 14 (i). (Commencement as in pr. 33.) And then and there unlawfully and maliciously did challenge C. D. a peaceable subject of our said lord the king, to fight with hun the said A. B. on account of money then and there won by the said C. D. (k) of him the said A.B. by then and there gaming and playing at dice with the said A. B. at a certuin gume called hazard (l), to the great damage of the said C. D. against the form of the statute, &c. and a_ainst the peace, &c. (2nd count, commencement as in pr. 33.) And then and there unlawfully and maliciously did provoke C. D. to fight with him the said A. B.
wards Earl of Oxford) was stab- money won by gaming, playbed by Anthony Guiscard, ing, or betting at any of the who was then under examina- games aforesaid, (viz. cards, tion before a committee of the dice, tennis, bowls, tables, or privy counsel.
other gaine or games whatsoThi The prosecutor lost his ever,) such person or persons, money to Randall and others, &c. shall, being thereof lawthe defendants; theyproposed to fully convicted upon an indictdepart; he objected, wishing to ment or information to be exhave an opportunity of recover- hibited against him for that ing his money, upon which purpose, forfeit to her majesty, they committed the assault. &c. all his goods and chattels Buller, J. was of opinion, that and personal estate whatsoever, the game being over before the aud shall also suffer imprisonassault began, it could not be ment, without bail or mainsaid to have arisen out of the prize, in the common yaol of gaine, but froin what the pro- the county where such convicsecutor had said to the defen- tion shall be had, during the dants; and that it was necese term of two years. sary, in order to bring a case (k) In order to support the within the statute, that the as- indictment it does not appear sault should arise out of the to be necessary that the money play and during the time of should have been won by the playing. East. P. C. 423. prosecutor, or that it should be Brist. Summ. Ass. 1787. alleged by whom the money
(i) Which enacts, that if any was won. person or persons whatsoever, (2) The game seeins to be shall assault and beat, or chal. immaterial, therefore this allenge or provoke to fight, any legation had better be omitother person or persons what- ted. soever, upon account of any
on account of money then and there won by the said C. D. from the said A. B. by gaining and piaying at dice, to the great damage, &c. against the form, fc. and against the peace, ģc.
Indictment for the same, alleging an assault and beating.
(Commencement as in pr. 33.) And then and there did beat the said C. D. on account of money then and there won by the said C. D. from him the said A. B. by then and there gaming and playing at dice, to the great damage, &c. (coniluide as in the last precedent.)
69. For an assaull, against the stat. 36 G. 3.c. 9 (m).
(Commencement as in pr. 1.) In and upon one E. F. did wilfully and maliciously make an assault, and him the said E. F. did then and there wilfully and maliciously beat, with intent to deter and onder him the said L. F. from then and there buying corn, at the parish aforesaid in the county aforesaid. (Conclude as before.)
68. For an assault, fc. with intent to stop grain, gc.
In and upon one E. F. who was then and there driving a certain cart loaded with wheat, unlawfully and maliciously did make an assault, and him the said E. F. did then and there uplaw fully aud maliciousiy beat, with intent to stop such wheat. (Conclusion as before, and add a cuunt for a common assault.)
(m) If any person shall wil lawfully convicted before any fully and maliciously heat, two or more justices of the wond, or use any other vio- peace of the county, &c. or belence to or upon any person or fore the justices of the peace in persons, with intent to deter open sessions, shall be sent to him or them from buying of the common gaol or house of corn or grain in any market correction, there to continue or other place within this king- and be kept to hard labour, dom, or unlawfully beat or not less than one nor exceeding wound the driver of any way. three months. gon, cart, or other carriage A person so offending a or horse loaded with wheat, second time, and being lawflour,ne: I, malt, or other grain, fully convicted, to be deemed with intent to stop such wheat, guilty of felony, and to be &c. such person, being thereof iransported for fourteen years.
69. Indictment for ravishing a woman. (Commencement as in pr. 1.) In and upon one A. P. spinster, in the peace of God and our said lord the king ther and there being, violently and feloniously did make an assault, and her the said it. P. against the will (n) of her the said A. P. then and there teloniously did ravish (0), and carually know (p), against the form (9) of the statute, &c. and against the peace, &c.
70. Indictment for carnally knowing and abusing a female
child under the age of ten years (r). (Commencement as in pr. 1.) In and upon one E. F.
(n) The absence of previous S. 190. 2 Ins. 180. 433. 1 consent is a material ingredient Hale, 627, 8. 1 Haw, c. 41. in the offence, as described in s. 7. 4 Bi. Comu). 210. 212. 13 E. 1. stat. 1. c. 24. see be- By the stat, of West. 3 E. 1. low.
c. 13. the offence was reduced (o) The word rapuit is essen to a trespass; but by stat. of tial, and is not supplied by West. 2. it was again made the words carnaliter cognovit, felony, the stat, enacting, that see p. 72.
ravishment without any con(p But the words carnaliter sent before or after, and ra. cognovit do not appear to be vishment with force without essential, 2 Haw. c. 25. s. 56. consent, should be punished 11 H. 4. 14. See Staun. 81. with judgment of life and Co. Litt. 137. 2. Ins. 180. member." Since, therefore, ao where Lord Coke says, that indictment at the present day rapere legally signifies as much rests upon this statute, it would as carnaliter cognoscere; and if not be proper to omit the conso, the latter allegation ap- clusion contra formam, 1 Hale, pears to be unuecessary, for 632. Dy. 304. 6 H. 7. 5.; at the use of the latter words is to all events this conclusion is nee specify the nature of the crime cessiry in case of an appeal. rather than any meaus or cir- 2 Haw. c. 23, s. 6. cainstauces of the particular Principals in the 1st and ed case. But it would not be degree are, ousted of their prudent to omit these words, clergy by the stat. 18 Eliz. 6. 7.
gi The indictment usually and 3 W. & M. c. 9. concludes, against the form of (r) The stat. 18 Eliz, c. 7. s. the statute. But rape was an- 4. takes away the benefit of ciently a capital felony. i Ins. clergy from such as shall un