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&c. did then and there violently prevent the said J. B. from arresting the said B. W. as by the same writ be was commanded, &c. (Conclusion as in pr. 33.).
60. Indictment under the stat. 9 G. 1. c.09. (9) for shvot.
ing at a person in his dwelling-house. - That A. B. late of, &c. labourer, being an ill-designing and disorderly (r) person, of a wicked and mali. cious disposition, and not regarding the laws and statutes of this realm, nor the pains and penalties therein contained, on, &c. with force and arms, at, &c. in the county aforesaid (s), with a certain gun, loaded with gun.
(9) This act enacts, that “if . Where one actually shoots, any person or persons shall wil. and others are present aiding fully and maliciously shoot at aud abetting, it does not apany person in any dwelling. pear to be necessary to introhouse, or other place, or shall duce more than one count, forcibly rescue any person be- since it is clear, that all may ing lawfully in custody of any be charged as principals. See officer, or other person, for such p.31.81. the Coalheavers' case, offence; or if any person or Leach, 76. 3 T. R. 105. persons shall, by gift or promise In Wills's case, East. P. C. of money, or other reward, pro- 414. Kent, Sp. Ass. 1786. the cure any subject to join him or first count charged, that the them in any such unlawful act, prisoner, and divers others, to every person so offending, be- the jurors unknown, shot at ing thereof lawfully convicted, J. P.; the second count alshall be adjudged guilty of fe- leged, that a person unknown lony, and suffer death without wilfully, &c. shot at J.P.; and benefit of clergy.” See 43 that the prisoner was present G. 3. c. 58. and the indict- aiding and abetting, &c. and nents founded upon it, infra. alleged in conclusion, that both
(r) These words are used in committed the felony. Mr. J. the preamble of the statute, Ashurst informed the jury, that but it seems to be unnecessary if they were of opinion, that to introdure them into the in the prisoner went in confederacy dictment, since they are no with others to make an attack part of the description of the upon Mr. M.Ullock's house, offence.
and came armed with an inten(s) The offender may be tion to oppose all resistance; tried in any county, see p. 13, and that, in the prosecution of but the offence ought to be laid that purpose, the prisoner, or in the true county, see p. 19. any of his associates, shot at the powder and a leaden bullet, which he the said A. B. in boib his hands then and there had and beld, he the said A. B. with the said gun, so being loaded as aforesani, did then and there wilfully, maliciously it), unlawfully, knowingly, and feloniously shoot at C. D. (the said C. D. then and there being in his own dwelling-house u), against the forin of the statute, &c. and against the peace, &c. (Adri a count omitting the words “ loaded with guna powder, &c.")
An indictment charging several with a single shooting may be tramed thus(x). That A. B. late of
, in the county of wan, labourer, C. D. late of, &c. labourer, E. F. late of, &c. labourer, being evil, designing, and disorsleriy persons, and of wicked and malicious minds and dispositions, on, &c. with force and arms, at, &c. in and upon one G. H. did unlawfully, wilfully, maliciously, and teloniously, make an assault, and with a certain gun, loaded with gunpowder, and divers leaden bullets, to wit, thrie lea len bullets, unlawfully, wilfully, inaliciously, and feloniously, did then and there shoot at the said S. P. against the form of the statute, &c. and against the peace, &c.
61. Indictment of felony, by slitting a nose, and against
the aider and ubetior. (Commencement as in pr. 33. to the *, stating the assault to have been made jointly.) Contriving and in
prosecutor; then they should in prosecutions for robbery, it find the prisoner guilty. And has been bolden, that such an the judges were of opinion, averment might be rejected as that the direction was right, surplusage, see p. 178; and and that the Coalheavers' case probably the same was holden was good law.
upon an indictment imder thiy (t) These words are essen- statute. In Harris's case, East. tial, see p. 212.
P. C. 415. on an indictment (u) The words of the statute under this act it was objected, are, in any dwelling-house or that the prisoner, having fired in other place, and therefore at the party within his own this allegation is unnecessary. house, was not within the staIn Durore's case, p. 178, the tute; but the judges held, that owner's name was alleged, and the objection wils unfounded. å variance from it in evidence (2) Seethe Coalbeavers' case, was holden to be fatal. But Leach, 76).
tending one E. C. then and yet being a subject of our said lord the king, to maim and disfigure, at, &c. with force and arms, in and upon the said E. C. on purpose, and of their malice aforethought, and by laying in wait, unlawfully and feloniously did make an assault, and that the said J. W. with a certain iron bill, of the value of one penny, which he the said J. W. in his right hand then and there had and held, the nose of the said E. C. on purpose, and of his malice aforethought, and by lying in wait, then and there unlawfully and feloniously did slit, with intention the said E. C. in so doing, in manner aforesaid, to main and disfigure; and that the aforesaid A. C. at the time the aforesaid felony, by the said J. W. in manner and form aforesaid, was done and committed, to wit, on, &c. at, &c. with force and arms, on purpose, and of bis malice aforethought,and by lying in wait, unlawfully and feloniously was present, knowing of and privy to the committing of the said felony, aiding, and abetting the said J. W. in the felony aforesaid, in manner and form aforesaid done and committed; and so the jurors aforesaid, upon their oath aforesaid, do say, that the said J. W. and A.C. on, &c. at, &c. with force and arms, on purpose, and of their malice aforethought, and by lying in wait, the felony aforesaid, in form aforesaid, unlawfully and feloniously did do and commit, and each of them did do aud commit, against the peace, &c. and against the form, &c.
By stat. 22 & 23 Car. 2. c. 1. s. 7. if any person or persons, from and after the 24th day of June, in the year of our Lord 1671, on purpose, aud of malice forethought, and by lying in wait, shall 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 subject of his majesty, with intention in so doing to maim or disfigure, in any the manners before mentioned, such his majesty's subject, that then, and in every such case, the person or persons so offending, their counsellors, aiders, and abettors, (knowing of and privy to the offence aforesaid,) shall be guilty of felony, without benefit of clergy.
62. For striking a person with a weapon in a church.
(Commencement as in pr. 33 to the *.) In a certain churchyard belonging to the same parish, and there situate, maliciously did strike one E. F. spinster, with a certain weapon made of iron and steel, called a sword, which he the said A. B. then and there had and heli in his right hand, against the form, &c. and against the peace, &c.
(If the weapon be drawn with intent to strike another, then say, with bis right band did draw a certain weapon called a hanger, to the intent to strike one M. P. with the same weapon, against the form of the statute, &c. and against, &c. as above. (But if a person draw a weapon to the intent to strike, and actually strike, charge the drawing with intent, &c. as above, and add a count for the striking as in the first precedent.)
(a) By stat. 5 & 6 Edw. h. tices before whom such person C. 4. s. 3. if any person shall shall be convicted, to have one maliciously strike another with of his ears cut off: and if the any weapon, in any church or person or persons so offending church-yard, or shall draw any have none* ears, whereby he or weapon in any church or they shall receive such punisha church-yard to the intent to ment as is before declared, that strike another with the same then he or they be marked and weapon, that then every person burned in the cheek with an so offending, and thereof being hot iron having the letter F. convicted by verdict of twelve whereby he or they may be men, or by his own confession, known to be fray-njakers and or by two lawful witnesses, be fighters; and besides, that fore the justices of assize, jus every such person to be and tices of oyer and terminer, or stand ipso ficto excommunijustices of peace in their sese cated, and be excluded from sions, by force of this act, shall the fellowship and company of be adjudged, by the same jus- Christ's congregation,
* So in stat.
63. For an assault with intent to rob, under the stat. 7 G. 2.
c. 21 (6).
(Commencement as in pr. 1.) In and upon C. D. unlawfully, maliciously, and feloniously, did make an assault,
(6) The stat. 7 G. 2. c. 21. the prosecutor who was on the enacts, “ that if any person or coach-box, and bade hinn stop; personls shall, with any offensive and Lord C. J. Willes and weapon or justrument, unlaw. Chappel, J. are said to have fully and maliciously assault, holden that the case was not or shall by amenaces, or in or within the act, because there by any forcible or violent man- was no demand. But, as Mr. ner, demand any money, goods, East, in his Pleas of the Crown, or chattels, of or from any other observes, the words of the act person or persons, with a felo- are in the disjunctive, and nious intent to rob or commit where the indictment is framed robbery upon such person or upon the first branch of it a depersons, that then such person mand is unnecessary, and it is so offending, and being thereof for the jury to decide with what lawfully convicted, shall be intent the assault was made. adjudged guilty of felony, and The defendant, Thomas, be liable to be transported as (Leach, 372.) was indicted for in cases of felony." The act is a felonious assault on J. Lowe, in the disjunctive, therefore with a pistol, with intent to rob the indictment must allege an him; it appeared that the proseassault with an offensive weap- cutor was in a chaise, and the on, with an intent, &c. or that prisoner, after following it for the defendant did, by menaces, some time, presented a pistol &c. demand money, goods, or at the post-boy, bidding him chattels with a like intent; and stop, with many violent oaths, if it do not, will be defective. but making no demand of moR. v. Jackson and Randall, ney; the carriage stopped, but Leach, 303. R. v. Remnant, the prisoner, perceiving that he 5 T. R. 169. Pegges's case, was pursued, immediately rode East. P. C. 420.
away; the court held that the In Parfait's case, Leach, 23. evidence was not sufficient, for East. P. C. 416. the indict- thecharge was not of an assault ment charged an assault with a on the postillion with intent to pistol with intent to rob; it rob him, but for an assault on appeared that the defendant Mr. Lowe with intent to rob did not make any demand or him, of which there was no evimotion, or offer to demand the dence; and upon another inprisoner's money, but only held dictment against the same de. a pistol in his hand towards fendant for an assault on Dring