wickedly, and against the order of nature, had a venereal affair, and then and there feloniously, wickedly, and against the order of nature carnally knew the said cow; and then and there feloniously, wickedly, and against the order of nature, with the said cow did commit and perpetrate that detestable and abominable crime of buggery (not to be named among Christians) against the form of the statute in such case made and provided, and against the peace of our lord the King, his crown and dignity. Felony, death. 9 G. 4, c. 31, s. 15. This sentence may be recorded, 4 G. 4, c. 48. The carnal knowledge is proved in the same manner as in rape, or sodomy, see ante, p. 367, 371. An indictment for an attempt to commit this offence may readily be framed from this and the next precedent. It is punishable in the same manner as the attempt to commit sodomy. Indictment for an assault, with intent to commit Sodomy. Commencement as ante, p. 367]—in and upon one J. N., in the peace of God and our lord the King then and there being, did make an assault, and him the said J. N. then and there did beat, wound, and ill treat, with intent that detestable and abominable crime (not to be named among Christians) called buggery, with the said J. N. then and there feloniously, wickedly, diabolically, and against the order of nature, to commit and do; to the great displeasure of Almighty God, to the great damage of the said J. N.; against the form of the statute in such case made and provided, and against the peace of our lord the King, his crown and dignity. Misdemeanor, imprisonment, with or without hard labour, not exceeding two years, or fine, or both, and to find, if required, sureties to keep the peace. 9 G. 4, c. 31, s. 25. See ante, p. 157. Evidence. Prove an attempt to commit sodomy, the offence being incomplete for want of evidence of penetration. If, however, the complete offence of sodomy be proved, the defendant must be ao. quitted. BOOK II. PART II. OFFENCES OF A PUBLIC NATURE. CHAPTER I. OFFENCES AGAINST THE KING, AND HIS GOVERNMENT. SECT. 1. High Treason. 2. Coining. 3. Sedition and Blasphemy. 4. Administering unlawful Oaths. 5. Inciting to Mutiny. 6. Embezzling the King's Stores. SECT. 1. High Treason. Indictment for compassing the King's death. MIDDLESEX, to wit:-The jurors for our lord the King upon their oath present, that J. S., late of the parish of B., in the county of M., labourer, a subject of our said lord the King then and there being, not regarding the duty of his allegiance, nor having the fear of God in his heart, but being moved and seduced by the instigation of the devil, as a false traitor against our said lord the King, and wholly withdrawing the allegiance, fidelity, and obedience, which every true and faithful subject of our said lord the King should, and of right ought to bear towards our said lord the King, on the third day of May, in the first year of the reign of our sovereign lord William the Fourth, and on divers sufficient to set forth the substance of them; R. v. Francis, 6 St. Tr. 58. 73. R. v. Lord Preston, 4 St. Tr. 411. R. v. Watson, 2 Stark. 137; for in no case is it necessary that the whole detail of the evidence should be set forth; it is sufficient that the charge be reduced to a reasonable certainty, so that the defendant may be apprized of its nature, and be prepared to answer it. Fost. 194. Any number of overt acts may be laid; Kel. 8; but if any one sufficient overt act be proved, it will maintain the count. 1 Hale, 122. Fost. 194. Evidence. The evidence must be applied to the proof of the overt acts, and not to the proof of the principal treason; for the overt act is the charge to which the prisoner must apply his defence. And whether the overt act proved be a sufficient overt act of the principal treason laid in the indictment, is matter of law, to be determined by the court. It is also expressly enacted that no evidence shall be admitted of any overt act not laid in the indictment; 7&8 W. 3, c. 3, s. 8; that is to say, no overt act amounting to a distinct independent charge, although it be an overt act of the species of treason charged, shall be admitted in evidence, unless it be expressly laid in the indictment; but if an overt act not laid amount to direct proof of any other overt act which is laid, it may be given in evidence to prove such overt act. R. v. Rookwood, 4 St. Tr. 661. 697. R. v. Deacon, Fost. 9. R. v. Lowick, 4 St. Tr. 718. 722. 731. R. v. Layer, 8 Mod. 82, 89, 6 St. Tr. 229, 282, 284. R. v. Wedderbourn, Fost. 22. Ante, p. 101. Although writings cannot be laid as an overt act, unless published, yet, if they tend to prove any overt act laid, they shall be admitted in evidence for that purpose, although never published. R. v. Lord Preston, 4 St. Tr. 410. 440. R. v. Layer, 6 St. Tr. 272 -280. R. v. Hensey, 1 Bur. 642. 644. And in Colonel Sidney's case, if the papers found in his closet had been plainly referable to the other treasonable practices charged in the indictment, they might indisputably have been read in evidence against him, although not published. Fost. 198. Also, it is no objection that the writings, or any other articles, were not found until after the apprehension of the defendant. R. v. Watson, 2 Stark. 137. Where words of incitement have reference to an act, after giving evidence of the words, you may give evidence of the act, in order fully to explain them. R. v. Lord G. Gordon, Doug. 590. 593. Where a conspiracy is laid as an overt act, the acts of any of the conspirators in furtherance of the common design may be given in evidence against all. R. v. Hardy, 1 East, P. C. 70. R. v. Stone, 6 T. R. 527. and see Kel. 19, 20. and ante, p. 101. In such a case, the first thing to be proved is the conspiracy; secondly, evidence must be given to connect the defendant with it; and lastly, if it be intended to give in evidence against the defendant the acts of any other person, you must shew that such person was also a member of the same conspiracy, and that the act done was in furtherance of the common design. See R. v. Sidney, 3 St. Tr. 798, &c. R. v. Lord Lovat, 9 St. Tr. 670, &c. The time at which the overt acts are alleged to have been committed, need not be proved as laid; it is sufficient if they be proved to have been committed at any time within three years before the finding of the indictment. R. v. Charnock, 1 Salk. 288. R. v. Lord Balmerino, 9 St. Tr. 587-605. R. v. Townley, Fost. 7, 8. As to the place where the overt act is alleged to have been committed: an overt act must be proved to have been committed in the proper county. See R. v. Lord Preston, 4 St. Tr. 410-455. But if any one overt act be proved against the defendant in the proper county, acts of treason tending to prove such overt act laid, though done in a foreign county, may be given in evidence ; and this was done in nearly all the trials of the rebels in the year 1746. Fost. 9. 22. Where several overt acts are laid, proof of any one of them will maintain the count, provided the overt act so proved is a sufficient overt act of the species of treason charged in the indictment. 1 Hale, 122. Fost. 194. Form of a count for levying war. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. S., being a subject of our said lord the King, not regarding the duty of his allegiance, nor having the fear of God in his heart, but being moved and seduced by the instigation of the devil, as a false traitor against our said lord the King, and wholly withdrawing the allegiance, fidelity, and obedience, which every true and faithful subject of our said lord the King should and of right ought to bear towards our said lord the King, on the said third day of May in the first year of the reign aforesaid, with force and arms, at the parish aforesaid, in the county aforesaid, together with divers other false traitors to the jurors aforesaid unknown, armed and arrayed in a warlike manner, that is to say, with guns, muskets, blunderbusses, pistols, swords, bayonets, pikes, and other weapons, being then and there unlawfully, maliciously, and traitorously assembled and gathered together, against our said lord the King, most wickedly, maliciously, and traitorously did levy and make war against our said lord the King within this realm, and did then and there maliciously and traitorously attempt and endeavour by force and arms to subvert and destroy the constitution and government of this realm as by law established, and deprive and depose our said lord the King of and from the style, honour, and kingly name of the imperial crown of this realm; in contempt of our said lord the King and his laws, to the evil example of all others in the like case offending, contrary to the duty of the allegiance of him the said J. S.; against the form of the statute in such case made and provided, and against the peace of our lord the King, his crown and dignity. In this count it is not necessary to set out the particular acts of the defendant; it is sufficient to allege, generally, that he assembled with a multitude, armed and arrayed in a warlike manner, and levied war. Fost. 220. Evidence. In order to maintain this count, it is necessary to prove that which in law amounts to a levying of war, directly or constructively, against the King in his realm; and to prove that the defendant was either actually engaged in it, or present aiding and abetting. In order to constitute a levying of war, the number of persons assembled is not material; three or four will constitute it, as fully as a thousand. 3 Inst. 9. Nor is it necessary that they should be more guerrino arraiati, armed with military weapons, with colours flying, &c., although it is usually so stated in the indictment. Fost. 208. and see R. v. Dammaree et Purchase, Fost. 208. Nor is actual fighting necessary to constitute a levying of war; Fost. 218. 1 Hale, 144; for, as the court held in Vaughan's case, (5 St. Tr. 17-39. 2 Salk. 634), enlisting and marching are sufficient, without coming to battle. After an action has taken place, it is termed bellum percussum; before it, bellum levatum. War levied against the King is of two kinds-direct and constructive; direct, when the war is levied directly against the King or his forces, with intent to do some injury to his person, to imprison him, or the like; 1 Hale, 131, 132; such, for instance, as open rebellion, for the purpose of deposing or imprisoning the King, or of getting him into the power of the rebels, or of forcing him to put away his ministers, or the like; 1 Hale, 152. Fost. 210. and see R. v. The Earls of Essex and Southampton, Moor, 620. 1 St. Tr. 197; holding or defending any of the King's castles, forts, or ships, against the King or his forces, or delivering them up to rebels, through treachery; 3 Inst. 10. Fost. 219. 1 Hale, 325, 326; constructive, where it is levied for the purpose of effecting innovations of a public and general nature by an armed force; Fost. 211; as, for the purpose of attempting by force to obtain the repeal of a statute, to alter the religion established by law, or to obtain the redress of any other public grievance, real or pretended; 1 Hawk. c. 17, s. 25. 1 Hale, 153. Fost. 211. 3 Inst. 9, 10. R. v. Lord G. Gordon, Doug. 590; or an insurrection for the purpose of throwing down all inclosures, pulling down all bawdy houses, opening all prisons, &c., expelling all strangers, enhancing the price of wages generally, or the |