What it is. How punishable by the common law. 3 Ed. 1. c. 25. How punish able by statute. Covenant, any agreement. 28 Ed. 1. c. 11. Forfeiture to the king. 33 Ed. 1. st. 3. Imprisonment. 1 R. 2. c. 9. Feoffment or gift for main tenance, void. 31 El. c. 5. Venue. What it is. Interference, &c. with a juror. can, in any case, lawfully lay out their own money in another's 1 Russ. 179. case. II. Of Champerty in particular. Champerty (from campi parte) is the unlawful maintenance of a suit in consideration of some bargain to have part of the lands or thing in dispute, or part of the gains. 1 Haw. c. 84. § 1. 1 Russ. 179. Every champerty is maintenance, but every maintenance is not champerty; for champerty is but a species of maintenance, which is the genus. 2 Inst. 208. Champerty was an offence at the common law, and as such is punishable in like manner as hath been expressed in treating of maintenance in general. 2 Inst. 208. By stat. 3 Ed. 1. c. 25., no officer of the king, by himself, nor by other, shall maintain pleas, suits, or other matters hanging in the king's courts, for lands, tenements, or other things, for to have part or profit thereof, by covenant made between them; and he that doth shall be punished at the king's pleasure. That is, by agreement either by word or writing; for albeit in the common sense, a covenant is taken for an agreement by writing, yet in a larger sense it is taken (as it is here) for an agreement by writing or by word. 2 Inst. 209. By stat. 28 Ed. 1. c. 11., no person whatsoever, for to have part of the thing in plea, shall take upon him the business that is in suit, nor shall any upon such covenant give up his right to another; on pain that the taker shall forfeit to the king the value of the part he has purchased for such maintenance. But no person shall be prohibited hereby to have counsel of pleaders, or of men learned in the law, for their fee; or of his parents and next friends. By stat. 33 Ed. 1. st. 3., any person who shall take for mainte nance or the like bargain, any suit or plea against another, he and also they who consent thereto shall be imprisoned three make fine at the king's pleasure. Vide Tomlins's Statutes, vol. i. p. 225. years, and And by stat. 1 R. 2. c. 9., a feoffment of lands, or gift of goods, for maintenance, shall be void, and the person disseised shall recover the lands against the first disseisors with double damages, without having any regard to such alienations. But it is said that it shall only be void with regard to him that hath right, and not between the feoffor and feoffee. 1 Inst. 369. And by stat. 31 El. c. 5. §4., the offence of champerty may be laid in any county, at the pleasure of the informer. III. Of Embracery in particular. It seems clear, that any attempt whatsoever to corrupt or influence or instruct a jury, or any way to incline them to be more favourable to the one side than to the other, by money, promises, letters, threats, or persuasions, is a proper act of embracery, whether the juror on whom such attempt is made give any verdict or not, or whether the verdict given be true or false. 1 Haw. c. 85. § 1. And the law so far abhors all corruption of this kind, that it By a stranger. prohibits every thing which has the least tendency to it, what precious pretence soever it may be covered with; and therefore it will not suffer a mere stranger so much as to labour a juror to appear and act according to his conscience. 1 Haw. c. 85. § 2. But any person who may justify any other act of maintenance By one not a may safely labour a juror to appear and give a verdict according stranger. to his conscience: but no one whatsoever can justify the labouring a juror not to appear. Id. c. 85. § 6. There is no doubt but that offences of this kind do subject the How punishoffender either to an indictment or action, in the same manner as able by the all other kinds of unlawful maintenance do by the common law. common law Id. c. 85. § 7. By stat. 32 H. 8. c. 9. §§ 3. 6., no person shall embrace any jurors on pain of 10l., half to the king, and half to him that shall sue within a year. Stat. 6 G. 4. c. 50. § 61. provides, enacts, and declares, "That notwithstanding any thing herein contained, every person who shall be guilty of the offence of embracery, and every juror who shall wilfully or corruptly consent thereto, shall and may be respectively proceeded against, by indictment or information, and be punished by fine or imprisonment, in like manner as every such person and juror might have been before the passing of this act." Indictment for Maintenance, in the THE jurors for our lord the king upon their oath present, that Malicious Trespasses. See tit. Malicious Injuries ; Malicious Injuries. UNDER this title are comprised all such offences against the persons or the property of individuals, as are not distinctly classed within some other description of crine in this work; and they will be found to result chiefly from the enactments of 9 G. 4. c. 31. and of 7 & 8 G. 4. c. 30., the former entitled "An act for consolidating and amending the statutes for offences against the person," the latter, "for consolidating and amending the laws relative to malicious injury to property." How punish able by statute. 6 G. 4. c. 50. Embracers and punishable by fine and imprisonment. corrupt jurois 9 G. 4. c. 31. Attempts to murder, when evidenced by certain acts, I. To the Person. [9 G. 4. c. 31.] II. To Property. [7 & 8 G. 4. c. 30.] I. Malicious Injuries to the Person. By 9 G. 4. c.31. § 11., "If any person unlawfully and maliciously shall administer (a), or attempt to administer to any person, or shall cause to be taken by any person, any poison or other destructive thing, or shall unlawfully and maliciously attempt to drown, suf shall be capital. focate, or strangle any person, or shall unlawfully and maliciously shoot at any person, or shall, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut, or wound any person, with intent, in any of the cases aforesaid, to murder such person, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon." Shooting at, or stabbing, cutting, or wound. ing any person maim, &c. shall be capital, pro with intent to vided the case would have been murder if death had ensued. Administering poison, or using any means to procure the miscarriage of a woman quick with child. The like as to a woman not quick with child. § 12. "If any person unlawfully and maliciously shall shoot at any person, or shall, by drawing a trigger, or in any other manner attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut, or wound any person, with intent, in any of the cases aforesaid, to maim, disfigure, or disable such person, or to do some other grievous bodily harm to such person, or with intent to resist or prevent the lawful apprehension or detainer of the party so offending, or any of his accom plices, for any offence for which he or they may respectively be liable by law to be apprehended or detained, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon: Provided always, that in case it shall appear on the trial of any person indicted for any of the offences above specified, that such acts of shooting, or of attempting to discharge loaded arms, or of stabbing, cutting, or wounding as aforesaid, were committed under such circumstances, that, if death had ensued therefrom, the same would not in law have amounted to the crime of murder, in every such case the person so indicted shall be acquitted of felony.' § 13. "If any person, with intent to procure the miscarriage of any woman then being quick with child, unlawfully and maliciously shall administer (a) to her, or cause to be taken by her, any poison or other noxious thing, or shall use any instrument or other means whatever with the like intent, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon; and if any person, with intent to procure the miscarriage of any woman not being, or not being proved to be, then quick with child, unlawfully and maliciously shall administer (a) to her, or cause to be taken by her, any medicine or other thing, or shall use any instrument or other means whatever with the like intent, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years (a) See R. v. Cadman, post, p. 546, nor less than seven years, or to be imprisoned, with or without 9 G. 4. c. 31. hard labour, in the common gaol or house of correction, for any term not exceeding three years, and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit), in addition to such imprisonment. § 15. "Every person convicted of the abominable crime of Sodomy. buggery, committed either with mankind or with any animal, shall suffer death as a felon." now repealed. By 43 G. 3. c. 58. (called Ld. Ellenborough's act, and which is 43 G. 3. c. 58. now repealed), " if any person or persons shall, either in England (Lord Ellenor Ireland, wilfully, maliciously, and unlawfully shoot at any of his borough's Act), majesty's subjects, or shall wilfully, maliciously, and unlawfully present, point, or level any kind of loaded fire-arms 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 or persons, or shall wilfully, maliciously, and unlawfully stab or cut any of his majesty's subjects, with intent in so doing, or by means thereof, to murder, or rob, or to maim, disfigure, or disable such his majesty's subject or subjects, or with intent to do some other grievous bodily harm to such his majesty's subject or subjects, or with intent to obstruct, resist, or prevent the lawful apprehension and detainer of the person or persons so stabbing or cutting, or the lawful apprehension and detainer of any of his, her, or their accomplices for any offences for which he, she, or they may respectively be liable by law to be apprehended, imprisoned, or detained, provided," &c. Among the following decisions, many upon this last-mentioned stat. will be found for the most part applicable to the corresponding enactments in 9 G. 4. c. 31. c. 58. Rex v. Kitchen, Bridgewater Sum. Ass. 1805, C. C. R. 95. The To shoot at prisoner was tried and convicted on an indictment for maliciously another with shooting at Elizabeth Monslow, with a loaded pistol, with intent to pistol loaded with gunpowkill and murder her, against the statute. There were other counts der and wadin the indictment, some stating the intent to be to do her some ding only, is an grievous bodily harm, and others to disfigure her, and some offence within stating the pistol to be loaded with gunpowder only, and others stat. 43 G. 3. stating it to be loaded with gunpowder and other destructive materials. There was not any direct and positive evidence of the pistol, which was fired close to the prosecutrix's ear, being loaded with any thing besides gunpowder and wadding or paper, but there were circumstances from whence to infer, that it was loaded with some other destructive materials, and the evidence of the surgeon, as to his opinion from the nature of the wound, was positive that it must have been so loaded: it is, however, very possible, that it might not have been loaded with any thing except powder and paper. The learned judge directed the jury, that whether the pistol was loaded with gunpowder and ball or other destructive materials, or whether it was loaded with gunpowder and paper only, if the prisoner fired so near to the person of the prosecutrix, and in such a direction, as that it probably would kill her, or do her some grievous bodily harm, and with intent that it should do so, the case was within the statute: but his lordship desired them, if they found him guilty, to tell him whether they were satisfied that the pistol was loaded with any destructive materials besides gunpowder and paper, or not. The jury found Kitchen's case. the prisoner guilty, and said, they were satisfied that the pistol was loaded with some destructive material besides powder and wadding. What shall be considered loaded fire. arms. Blunderbuss loaded, but no priming. Variance as to the fire-arms. Application was afterwards made to the crown for mercy, on the ground that the pistol was not loaded with any thing but powder and paper, and supposing that to be the fact, the question submitted to the judges was, whether the direction to the jury was right. On 16th November, 1805, all the judges (except Heath J. who was absent from illness) were of opinion, that the prisoner was properly convicted and the direction right. To constitute the offence of attempting to discharge loaded firearms, they must be so loaded as to be capable of doing the mischief intended. If part of the loading has fallen out, though without the knowledge of the party, and what remains is inadequate to effect the mischief, the case is not within the act. The case is not within the act, if there be not such a loading at the time as is likely to produce a discharge, though it is possible it may produce it. Rex v. William Carr, O. B. Jan. Sess. 1819, cor. Holroyd J. C. C. R. 377. The prisoner was tried for wilfully, maliciously, and unlawfully pointing and levelling a blunderbuss loaded with gunpowder and leaden shot, and attempting by drawing the trigger to discharge the same against William Billingsly, with intent to murder him. There were two other counts, one charging the intent to be to disable W. B., and the other to do him some grievous bodily harm. It appeared in evidence that W. B. had loaded the blunderbuss with gunpowder and leaden shot, and primed it a fortnight before the offence was committed, but had not examined it afterwards; and that at the time when the prisoner, having levelled the blunderbuss, pulled the trigger, the flint struck fire, but the flash was of the flint only and not of any priming. The loading was afterwards discharged and fired from the blunderbuss at the police office by accident, without any fresh priming. The jury found the prisoner guilty, but they at the same time added, that the blunderbuss was not primed at the time when the prisoner drew the trigger. On case, a great majority of the judges considered this equivalent to a finding that the blunderbuss was not so loaded as to be capable of doing mischief by having the trigger drawn, and if not, that it was not loaded within the meaning of the act. The prisoner was accordingly pardoned. In an indictment against two prisoners on 9 G. 4. c. 31., one was the contents of charged with shooting at the other, the other being present, aiding and abetting; the intent was laid variously in different counts, but they all stated that the pistol was loaded with a leaden bullet: the prisoner Hughes had fired at the prisoner Ann Worsley by her desire, and also had shot himself, and they were both badly wounded. The surgeon gave evidence, that, from the nearness of the position in which they stood to each other, the wadding might have produced the same effect as a ball; and no ball could be found. Bolland B., after consulting with Park J. and James Parke J., directed the jury that the indictment was not sufficiently proved. Verdict, not guilty. O. B. Jan. Sess. 1832, R. v. Hughes and Ann Worsley, 5 C. & P. 126. Touch-hole plugged so that no mischief could be done. Prisoner was charged under 9 G.4. c.31. §§ 11, 12., with attempt ing to discharge a loaded pistol at W. W. by drawing the trigger, and in different counts the intent was laid in several ways: the pistol was proved to have been loaded with powder and ball, and it was snapped at the prosecutor's head; but there was evidence |