Such are the acts causing or tending to cause danger to life, or bodily harm, which have by statute been constituted felonies; the following criminal acts included in the class under our notice have, in like manner, been constituted misdemeanors:— 1. The "unlawfully and maliciously" (p) wounding or inflicting any grievous bodily harm upon any other person, either with or without any weapon or instrument (q),-or administering to, or causing to be administered to, or taken by any other person, any poison or other destructive or noxious thing, with intent to injure, aggrieve, or annoy such person (r). [*245] 2. The refusing or neglecting, wilfully and without * lawful excuse -by one who is legally liable, either as a master or mistress, to provide for an apprentice or servant necessary food, clothing, or lodging-to provide the same, or the unlawfully and maliciously doing, or causing to be done, any bodily harm to any such apprentice or servant, so that his life be endangered, or his health be permanently injured (8). 3. The unlawfully abandoning or exposing any child, under the age of two years, whereby the life of such child shall be endangered, or its health be permanently injured (†). 4. The setting, or causing to be set, any spring gun, or other engine calculated to destroy human life, or inflict grievous bodily harm, with intent that the same, or whereby the same may destroy or inflict grievous bodily harm upon a trespasser or other person coming in contact therewith (u). 5. The endangering, or causing to be endangered, by any unlawful act, or by any wilful omission or neglect, the safety of any person conveyed or being upon a railway (x). 6. And whosoever, having the charge of any carriage or vehicle, shall, by wanton or furious driving, or other wilful misconduct, or by wilful neglect, do or cause to be done any bodily harm to any person, may likewise be indicted for a misdemeanor (y). [* 246 ] * Having in the preceding pages noticed seriatim attempts to commit murder, and acts described in statutory language as "causing or tending to cause danger to life or bodily harm," next in order to the foregoing offences, assaults will claim our attention. V. Assaults. V. With regard to the nature of an assault, I have little to add to what has already been observed in the preceding book of these Commentaries; when we considered it as a private wrong, or civil injury, for which a satisfaction or remedy is given to the party aggrieved. Taken in a public light, as a breach of the peace, an affront to the government, and a damage done to the subjects of the crown; an assault is also indictable and punishable. It is an attempt to commit a battery, or an act indicating an intention to do violence to the person of another, as by pointing a gun at him, (p) Ante, p. 241 (b). (g) 24 & 25 Vict. c. 100, s. 20. Punishment: penal servitude for five years,-or imprisonment for any term not exceeding two years, with or without hard labour. (r) S. 24. Punishment: ut supra. (8) S. 26. Punishment: penal servitude for five years, or imprisonment for any term not exceeding two years, with or without hard labour. (t) S. 27. Punishment: ut supra. (u) S. 31. Punishment: ut supra. The above section provides, however, that it shall not be illegal to set any trap such as may be usually set with the intent of destroying vermin; nor, from sunset to sunrise, to set any spring gun or other engine in a dwelling-house, for the protection thereof. (x) S. 34. Punishment: imprisonment for any term not exceeding two years, with or without hard labour. (y) S. 35. Punishment: ut supra. within a distance to which it will carry, striking at him or the like (z). A battery includes not only beating and wounding, but even the touching or laying hold of another's person or clothes in an angry or hostile mauner (a). (705) There are some species of battery, more penal than the rest, such as the beating of a clerk in orders, on account of the respect and reverence due to his sacred character as the minister and ambassador of peace; and it is accordingly enacted by the statute, 24 & 25 Vict. c. 100, s. 36, that, whosoever shall, by threats or force, obstruct or prevent, or endeavour to obstruct or prevent, any clergyman or other minister in or from celebrating divine service, or otherwise officiating in any church, chapel, or place of divine worship, or in or from the performance of his duty in the lawful burial of the dead in any churchyard or other burial place, or shall strike or offer any violence to, or shall, upon any civil process, or under the pretence of executing any civil process, arrest any clergyman or other minister who is engaged in, or, to the knowledge of the offender, is about *to engage in any of the rites or [* 247] duties above particularized, or who, to the knowledge of the offender, shall be going to perform the same, or returning from the performance thereof, shall be guilty of a misdemeanor, and punishable as undermentioned (b) Also, by s. 37 of the same statute, "Whosoever shall assault any magistrate, officer, or other person lawfully authorised, whilst performing his duty in the preservation of any vessel in distress, or of any vessel, or goods, wrecked, or lying under water, shall be guilty of a misdemeanor" (c). Assaults, more (2) Reg. v. St. George, 9 C. & P. 483. (a) Archb. Cr. Pl. 16th ed. 612, 613. (b) By imprisonment for any term not exceeding two years, with or without hard labour. (c) Punishment: penal servitude for not more than seven years nor less than five years, or imprisonment for any term not exceeding two years, with or without hard labour. (705) As to American definitions of an assault, see Johnston v. The State, 35 Ala. 363, 365; Smith v. State, 39 Miss. 521; Rainbolt v. State, 34 Texas, 286; Com. v. Stoddard, 9 Allen (Mass.), 280; People v. Yolas, 27 Cal. 630, 633; State v. Malcolm, 8 Iowa, 413. To constitute an assault, there must be the commencement of an act, which, if not prevented, would produce a battery. Lawson v. The State, 30 Ala. 14. The force must be physical. No words whatsoever can amount to an assault. People v. Bransby, 32 N. Y. (5 Tiff.) 525, 532 ; see Com. v. Eyre, 1 Serg. & R. (Penn.) 347; State v. Crow, 1 Ired. (N. C.) 375. The kind of physical force is, however, wholly immaterial. See People v. Lee, 1 Wheel. Cr. Cas. 364; State v. Sims, 3 Strobh. (S. C.) 137; People v. McMakin, 8 Cal. 547; State v. Church, 63 N. C. 15; State v. Rawles, 65 id. 334; State v. Myers, 19 Iowa. 517; Richels v State, 1 Sneed (Tenn.), 606; Com. v. Simmons, 6 J. J. Marsh. (Ky.) 615. A battery is any unlawful beating, or other wrongful physical violence or constraint, inflicted on a human being without his consent. 2 Bish. Cr. Law, § 70; see Long v. Rogers, 17 Ala. 540; Pike v. Hanson, 9 N. H. 491. An assault is included in every battery. State v. Freels, 3 Humph. (Tenn.) 228; Evans v. The State, 1 id. 394; Johnson v. The State, 17 Texas, 515. As to what is sufficient to constitute a battery, see id.; State v. Davis, 1 Hill (S. C.), 46; Res. v. De Longchamps, 1 Dall. 111; United States v. Ortega, 4 Wash. C. C. 531. An assault is more or less aggravated according to the facts of the particular transaction. See Norton v. State, 14 Texas, 387. Among aggravated simple assaults are those committed in courts of justice, and upon officers of the courts, or upon other official characters. See id.; Com. v. Kirby, 2 Cush. (Mass.) 577. Assault is a misdemeanor, and not a felony (Com. v. Barlow, 4 Mass. 439); even in case of an aggravated assault. Com. v. McLaughlin, 12 Cush. (Mass.) 612; People v. Wilson, 9 Cal. 259. It is held that an indictment at common law lies for a solicitation to inflict a battery United States v. Lyles, 4 Cranch's C. C. 469. over, when committed upon persons whom it has been deemed expedient specially to protect, or committed in the prosecution of crime, are, by various statutory provisions, visited with severe punishment (d). An assault occasioning actual bodily harm (e), or with intent to commit felony (ƒ), exposes the offender, on conviction, to a punishment heavier than can be awarded for a common assault (g). For which last-named offence an indictment will lie, or a summary conviction may be had before two justices of the peace (h). Should, however, the justices, upon investiga[* 248] tion, find the assault or battery complained of to have been accompanied by an attempt to commit felony, or should they be of opinion that it is, from any other circumstance, a fit subject for prosecution by indictment, they are to abstain from adjudicating thereupon, and to deal with the case in all respects as if they had no authority finally to hear and determine it. Nor are justices authorised to hear and determine any case of assault or battery in which a question may arise as to the title to any lands, tenements, or hereditaments, or any interest therein or accruing therefrom (i), or as to any bankruptcy, or any execution under the process of a court of justice (k). Further, when any person is charged before justices with an assault or battery upon a male child, whose age does not in their opinion exceed fourteen years, or upon any female, whether upon the complaint of the party aggrieved, or otherwise, the said justices, if the assault or battery is of such an aggravated nature that it cannot, in their opinion, be sufficiently punished as a common assault and battery, may proceed to hear and determine the same in a summary way, and if the same be proved, may convict the person accused, and punish him as undermentioned (1). Again, if the justices, upon the hearing of any case of common assault or of assault upon a child or female upon the merits, where the complaint was preferred by or on behalf of the party aggrieved, shall deem the offence [* 249] not to be proved, or shall find the assault to have been justified, or so trifling as not to merit any punishment, and shall accordingly dismiss the complaint; they are forthwith to make out a certificate under their hands stating the fact of such dismissal, and to deliver such certificate to the party against whom the complaint was preferred (m). And any person, having (d) See, for instance, the 24 & 25 Vict. c. 96, ss. 16, 42, 43; ante, p. 141. (e) 24 & 25 Vict. c. 100, s. 47. Punishment: penal servitude for five years, or imprisonment for not more than two years, with or without hard labour. (f) S. 38. Punishment: imprisonment for not more than two years, with or without hard labour. (g) For which the punishment after conviction upon indictment is imprisonment for not more than one year, with or without hard labour. 24 & 25 Vict. c. 100, s. 47. As to payment of the prosecutor's costs, see Id. ss. 74, 75. (h) 24 & 25 Vict. c. 100, s. 42. Punishment: imprisonment, with or without hard labour, for any term not exceeding two months; or fine not exceeding, together with costs (if ordered), the sum of 51.; and if such fine, together with the costs (if ordered), shall not be paid, either immediately after the conviction or within such period as the said (i) See Paley on Conv., 5th ed. 137. (2) S. 43. Punishment: imprisonment, obtained such certificate, or having been convicted, and having paid the whole amount adjudged to be paid, or suffered the imprisonment awarded, will be released from further proceedings, civil or criminal, for the same cause (n). VI. False imprisonment. VI. The two next crimes and offences, against the persons of her majesty's subjects, are infringements of their natural liberty: concerning the first of which, false imprisonment, its nature and incidents, I must content myself with referring the student to what was observed in the preceding volume, when we considered it as a mere civil injury. But besides the private satisfaction given to the individual by action, the law also demands public vengeance for the breach of the peace, for the loss which the state sustains by the confinement of one of its members, and for the infringement of the good order of society. We have before seen (o), that the most atrocious degree of this offence, that of sending any subject of the realm a prisoner into parts beyond the seas, whereby he is deprived of the friendly assistance of the laws to redeem him from such his captivity, is punished with the pains of præmunire, and capacity to hold any office, without a possibility of pardon (p). Inferior degrees of the same offence of false imprisonment are also punishable on indictment (like assaults and batteries), by fine and imprisonment (q). And, indeed, there can be no doubt, but that [* 250] all kinds of crimes of a public nature, all disturbances of the peace, all oppressions, and other misdemeanors whatsoever of a notoriously evil example, may be indicted at the suit of the crown (r). (706) &c. * VII. The offence of kidnapping, being the forcible abduction or stealing away of a man, woman, or child, was capital by the Jewish law. "He that VII. Kidnapping, stealeth a man, and selleth him, or if he be found in his hand, he shall surely be put to death" (8). So likewise in the civil law, the offence of spiriting away and stealing men and children, which was called plagium, and the offenders plagiarii was punished with death (t). This is unquestionably a very heinous crime, as it robs the crown of its subjects, banishes a man from his country, and may in its consequences be productive of the most cruel and disagreeable hardships; therefore the common law of England has punished it with fine, and imprisonment (u). (707) (n) S. 45. See Reg. v. Morris, 36 L. J. M. C. 84. (0) Ante, p. 115. (p) Stat. 31 Car. 2, c. 2. (q) West. Symbol. part 2, p. 92. (r) 1 Hawk. P. C. 210. (8) Exod. xxi. 16. (t) Dig. 48, 15, 1. (u) Designy's Case, T. Raym. 474: R. v. Wilmore, Skinn. 47. (706) Every unlawful restraint of personal liberty is an imprisonment, whether accompanied by corporal touch or not whether in a house, in a shop, or in the street. But force of some sort must be used, and it must be a detention against the will, and it is indispensable that these two circumstances should unite. Moses v. Dubois, Dudley (S. C.), 209, 211. And see State v. Edge, 1 Strobh. (S. C.) 91, 93; State v. Rollins, 8 N. H. 550; Pike v. Hanson, 9 id. 491; Smith v. State, 7 Humph. (Tenn.) 43; State v. Guest, 6 Ala. 778. False imprisonment is generally understood to include an assault (Id.; Click v. The State, 3 Texas, 282. But see State v. Edge, 1 Strobh. [S. C.]91); and the offense is a misdemeanor, not a felony. People v. Ebner, 23 Cal. 158. See, as to Texas, Redfield v. The State, 24 Texas, 133. Under Illinois statute, Slomer v. People, 25 Ill. 70. State, (707) False imprisonment is always included in the offense of kidnapping (Click v. 3 Texas, 282); and to complete the offense transportation to a foreign country is not necessary. State v. Rollins, 8 N. H. 550. Also, by "The Merchant Shipping Act, 1854," the offence of deserting or leaving seamen abroad has been specially provided for each of the acts undermentioned being thereby constituted a misdemeanor: 1. If the master or any other person belonging to any British ship wrongfully forces on shore and leaves behind, or otherwise wilfully and wrongfully leaves behind in any place on shore or at sea, in or out of her majesty's dominions, any seaman or apprentice belonging to such ship before the completion of the voyage for which such person was engaged, or the return of the ship to the United Kingdom (x). 2. If the master of a British ship: (1) Discharges any seaman or apprentice in any place situate in any British possession abroad (except the possession in which he was shipped), without previously obtaining the sanction in *writing, indorsed on the agreement of some public shipping master, [*251] or other officer duly appointed by the local government in that behalf, or (in the absence of any such functionary) of the chief officer of customs, resident at or near the place where the discharge was made: (2) Discharges any seaman or apprentice at any place out of her majesty's dominions, without previously obtaining the sanction, so indorsed as aforesaid, of the British consular officer there, or (in his absence) of two respectable merchants resident there: (3) Leaves behind any seaman or apprentice at any place situate in any British possession abroad, on any ground whatever, without previously obtaining a certificate in writing, so indorsed as aforesaid, from such officer or person as aforesaid, stating the fact and the cause thereof, whether such cause be unfitness or inability to proceed to sea, or desertion, or disappearance: (4) Leaves behind any seaman or apprentice at any place out of her majesty's dominions on shore or at sea, on any ground whatever, without previously obtaining the certificate, indorsed in manner and to the effect last aforesaid, of the British consular officer there, or (in his absence) of two respectable merchants, if there is any such at or near the place where the ship then is (y). Falling within the class of offences under our notice may be specified the following, of which the first-mentioned is a felony, and the second a misde meanor: * 1. The unlawfully, either by force or fraud, taking or enticing away, or detaining any child under the age of fourteen years, with intent to deprive any parent, guardian, or other person having the lawful care or charge of such child, of the possession thereof, or with intent to steal any article [* 252] upon or about the person of such child, and the receiving or harbouring such child, with a like intent, knowing the same to have been, by force or fraud, so taken, or enticed away, or detained (z). (x) 17 & 18 Vict. c. 104, s. 206. (y) 17 & 18 Vict. c. 104, s. 207. Under this section the functionaries and merchants mentioned in it are empowered to examine in a summary way into the grounds of the proposed discharge; and by s. 208, proof of the required sanction or certificate will be on the accused. The punishment (fine or imprisonment) of any offence declared to be a misdemeanor by the above act, is minutely regulated by s. 518. (2) 24 & 25 Vict. c. 100, s. 56. Punishment: penal servitude for any term not exceeding seven years nor less than five years,-or imprisonment for not more than two years, with or without hard labour, and, if a male under the age of sixteen years, with or without whipping. The consent of a child of very tender years will not avail as a defense in a prosecution for the crime of kidnapping. See Com. v. Nickerson, 5 Allen (Mass.), 518, 527; State v. Farrar, 41 N. H. 53; State v. Rollins, 8 id. 550; Com. v. Robinson, Thacher's Crim. Cas. 488. |