1816. NORTHUMBERLAND REX . JAMES AKENHEAD. on THE 1816. REX ย. AKENHEAD. 1. For an intent to murder, &c.; and, 2. To maim, disfigure, and disable; 3. And to do some other grievous bodily harm. Williams, for the prisoner, objected-1. That the first and second counts in the indictment were not supported by the evidence. The only question was upon the third count-Did the prisoner mean to do some "other grievous bodily harm," to the prosecutor? He submitted that the wounds were not of that kind from which grievous bodily harm could ensue. It was a scuffle in which a knife was used accidentally, without any settled design to "maim, disfigure, or disable," or to do "other grievous bodily harm" to the prosecutor. 2. The wounds were not inflicted in a part of the body, which could produce such a consequence. BAYLEY, J. entertained some doubts on the circumstances: the wounds were not in a vital part; and quære, whether the injury done was a grievous bodily harm contemplated by the act? Had death ensued, would it have been more than manslaughter? And was not this limit clearly understood throughout the act? His Lordship directed an acquittal, under all the circumstances of the case. Richardson and Cookson, for the prosecutor. Williams, for the prisoner. The following is the main provision of the 43d of G. III. c. 58-The first section enacts-"That if any person, &c. shall, either in England or Ireland, wilfully maliciously and unlawfully shoot at any of his Majesty's subjects, or shall wilfully maliciously and unlawfully present point or level any kind of loaded firearms at any of his Majesty's subjects, and attempt by drawing a trigger or in any other manner to discharge the same, at or against his or their person, &c.; or shall wilfully maliciously and unlawfully stab or cut any of his Majesty's subjects with intent, by so doing or by means thereof, to murder or rob or to maim, or with intent to do some other grievous bodily harm, to such his Majesty's subject or subjects, disfigure or disable such his Majesty's subject or subjects, or with intent to obstruct resist or prevent the lawful apprehension and detainer of any of his her or their accomplices, for any offences for which he she or they may be respectively liable by law to be apprehend ed imprisoned or detained, or shall wilfully maliciously and unlawfully administer to or cause to be administered to or taken by any of his Majesty's subjects any deadly poison or other noxious or destructive substance or thing, with intent such his Majesty's subject or subjects thereby to murder, or thereby to cause and procure the miscarriage of any woman quick with child; that then and in every such case the person or persons so offending, their counsellors, aiders and abettors, knowing of and privy to such offence, shall be and are hereby declared to be felons; and shall suffer death as in cases of felony, without benefit of clergy. Provided always, that in case it shall appear on the trial of any person or persons indicted for the wilfully maliciously and unlawfully shooting at any of his Majesty's subjects, or for wilfully maliciously and unlawfully presenting pointing or levelling any kind of loaded fire-arms at any of his Majesty's subjects, and attempting by drawing a trigger or in any other manner to discharge the same at or against his or their person or persons, or for wilfully maliciously and unlawfully stabbing or cutting any of his Majesty's subjects with such intent as aforesaid; that such acts of cutting or stabbing were committed under such circumstances as that if death 1816. REX v. AKENHEAD. 1816. REX V. had ensued therefrom the same would not have amounted to the crime of murder; that then, and in every such case, AKENHEAD. the person or persons so in dicted shall be deemed and taken to be not guilty of the felonies whereof they shall be so indicted, but be thereof acquitted." The object of this act, which was much called for, and particularly for the security of police officers, at the time it was passed, was threefold : 1. To give the same legal quality to the initiative act, which would belong to the act completed; that is to say, to make the attempt, partly executed, murderous, where the act, consummated, would have been murder. 2. To supply a defect in the Coventry Act, by withdrawing the necessary qualification under that Act, the lying in wait; a limitation which took all cases out of the reach of that act, in which there was any malicious cutting or stabbing not accompanied by such lying in wait. 3. To meet some particular mischiefs at the time when the act was passed; namely, the practice of thieves, at that time become most frequent and atrocious, of cutting and stabbing police officers, em ployed in the pursuit or apprehension of them. The term in the act, "griev ous bodily harm," looks particularly to this; and thereby, in addition to the taking away the necessity of the circumstance of lying in wait, gives an extent to this act beyond the Coventry Act; as, under the term (grievous bodily harm,) the wound need not be given either in a part which by law is a mayhem; nor in a visible part, as under the term "disfigure," in the Coventry Act; nor even in a part regarded as vital. For term this act, under its grievous bodily harm, compre hends stabbing or cutting in the thighs, legs, or any other part; subject only to the limitation, that if death ensue from such act, it must (under the circumstances) amount to the crime of murder; and, therefore, by implication, that there might be a possibility of death ensuing, namely, by the cutting of artery, or the loss of bload, &c. an 4. But as the terms in the act, cutting and stabbing, and the description which follows them, all belong to wounds made by a sharp instrument; so the application of the act under the words wounding, &c. confined to a wounding by such sharp instrument. Therefore, wounds made by a bludgeon, a poker, or instruments without a point or edge, would not be within this act; cutting taking in all edged instruments, and stabbing comprehending all instruments with points. 5. The words in the act which direct an acquittal, if the cutting, &c. be "under such circumstances as if death had ensued therefrom, the same would not in law have amounted to murder," are intended further to define the crime under the statute, by requiring that malice prepense in the initiative, (as it were,) of the action, which, in the completion of it, would have rendered it murder. This limitation is necessary in order to exclude such acts, as in their consummation would only have been manslaughter; and, therefore, in their initiation, are only violent personal assaults. 6. If the means by which the murder, as it were, is thus commenced, be totally and obviously inadequate to the effect; the act, it would appear, would have the advantage of this two-fold favourable presumption; first, that murder was not intended, and, therefore, that the act wanted the quality of malice prepense; and, secondly, that it did not fall within any of the terms of the statute, which, under its most general description, requires an act, or an attempt, which might be mortal. 7. One of the clauses in this act is directed against maliciously cutting with an intent to resist lawful apprehension. But if this cutting take place in an attempt to apprehend the prisoner without a due notification of the warrant or authority by which the person acts, it obviously does not fall within the clause; as it is not a wilful resistance of a lawful apprehension. Rex v. Ricketts, 3 Campb. 68. 1816. REX 2. AKENHEAD. |