cut, stab, and wound ["cut, stab, or wound"] one C. D.: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Misdemeanor, imprisonment, with or without hard labour, for not more than three years, 14 & 15 Vict. c. 19, s. 4. Costs to be allowed, as in cases of felony. Id. s. 14. Evidence. To maintain this indictment, the prosecutor must prove1. The cutting, stabbing, or wounding, as ante, p. 260. 2. That it was done maliciously; see ante, pp. 120, 121. If in proving this, the prosecutor happen to prove a felony, within either of the cases No. 5 or 6, ante, pp. 259, 262, the defendant shall not on that account be acquitted; but the court, in its discretion, may discharge the jury, and direct the prisoner to be indicted for the felony. 14 § 15 Vict. c. 100, s. 12. to wit. 8. Inflicting grievous bodily Harm. Indictment. The jurors for our Lady the Queen, upon their oath present, that A. B., on the day of ——, in the year of our Lord unlawfully and maliciously did [assault one C. D., and did then unlawfully and maliciously, &c., stating particularly the acts done,"] and thereby then did unlawfully and maliciously inflict upon the said C. D. grievous bodily harm: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [The facts I think must be set out; for although it is sufficient to state an intent to do grievous bodily harm, generally, yet when a statute, as in this case, makes it an offence to inflict grievous bodily harm, I think it necessary to set out the acts, specially, by which the bodily harm was inflicted. Misdemeanor, imprisonment, with or without hard labour, for not more than three years. 14 & 15 Vict. c. 19, s. 4. Costs to be allowed, as in cases of felony. Id. s. 14. Evidence. To maintain this indictment the prosecutor must prove 1. The acts done by the defendant, with or without weapon; 14 & 15 Vict. c. 19, s. 4; and that they had the effect of producing grievous bodily harm, as mentioned, ante, pp. 264, 265. 2. That they were done maliciously; which must be proved as directed, ante, pp. 120, 121. If in proving this, the prosecutor happen to prove a felony, the defendant shall not on that account be acquitted; but the court, in its discretion, may order the jury to be discharged, and direct the prisoner to be indicted for the felony. 14 & 15 Vict. c. 100, s. 12. 9. Doing bodily Injury, dangerous to Life. Indictment. to wit. The jurors for our Lady the Queen, upon their oath present, that A. B., on the day of, in the year of our Lord, feloniously did [assault one C. D., a child of tender age, to wit of the age of years, and did then feloniously strike and kick the said C. D., and feloniously did then knock the head of the said C. D. against a certain beam, and feloniously did then with great force and violence cast and throw the said C. D. upon a certain brick floor], and did thereby then cause unto the said C. D. great bodily injury, dangerous to the life of the said C. D., to wit [a concussion of the brain], with intent in so doing then and thereby feloniously, wilfully, and of his malice aforethought to kill and murder the said C. D. ["to commit murder"]: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [It has been holden not to be necessary to state the nature of the injury dangerous to life, as in the above form; R. v. Cruse et ux., 2 Moody, 53, 8 Car. & P. 541; but it is better to do so, where it can be stated with certainty, and proved as stated. Felony, death. Vict. c. 85, s. 2. Accessories before the fact are punishable in the same manner; accessories after the fact, by imprisonment [with or without hard labour, Id. s. 8,] for not more than two years. Id. s. 7. Evidence. To maintain this indictment, the prosecutor must prove 1. The acts done by the defendant, as stated in the indictment, and that the injury occasioned by them was such as to be dangerous to life. The words of the statute are,-whosoever shall, "by any means whatsoever, cause to any person any bodily injury dangerous to life," with intent to commit murder, shall be guilty of felony, and suffer death. So that the acts which caused the injury must, I conceive, be set forth, and proved as laid. And where a man and his wife were indicted for assaulting a child, and causing to it a certain bodily injury dangerous to life, by striking and kicking it, knocking its head against a beam in the ceiling, and then throwing it down upon a brick floor, so as to cause a concussion of the brain-done with an intent to murder: it was holden to be an offence within stat. 1 Vict. c. 85, s. 2, above mentioned. R. v. Cruse et ux., 8 Car. & P. 541. 2 Moody, 53. But if all the facts stated in the indictment be not proved, yet if sufficient be proved to amount to an offence within the statute, failing to prove the residue shall not hurt. See ante, p. 119. 2. The intent to murder as directed, ante, p. 258. It is not sufficient to prove merely that if death had ensued, the offence would have been murder; but admissions or acts of the defendant, from which an intent to murder may reasonably be inferred by the jury, must be proved. Per Patteson, J., in R. v Cruse et ux., supra. 10. Shooting at a Person with Intent to Murder. Indictment. day of The jurors for our Lady the Queen, upon their to wit. oath present, that A. B., on the in the year of our Lord, a certain [pistol] then loaded and charged with gunpowder and [one leaden bullet], which pistol he the said A. B. in his right hand then had and held, did then feloniously shoot and discharge at and against one C. D., with intent in so doing then and thereby feloniously, wilfully, and of his malice aforethought to kill and murder the said C. D. ["to commit the crime of murder"]: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [If there be any doubt of his intention to kill the particular person mentioned in the indictment,—if he fired at that person, mistaking him for another, then, instead of the words, "to kill and murder the said C. D." in the above form, say, "to commit the crime of murder." See R. v. Holt, 7 Car. & P. 518. Counts may be, and usually are, added, for shooting with intent to maim, disfigure, disable, or to do some grievous bodily harm, as in the form No. 12, post, p. 274. Felony, trasportation for life, or for not less than fifteen years;-or imprisonment [with or without hard labour, Id. s. 8] for not more than three years. 1 Vict. c. 85, s. 3. Accessories before the fact are punishable in the same manner ; accessories after the fact, by imprisonment [with or without hard labour, Id. s. 8] for not more than two years. Id. s. 7. As to costs, see ante, p. 186; costs of apprehension, ante, p. 189. Evidence. To maintain this indictment, the prosecutor must prove 1. That the defendant fired the pistol, or gun, as stated in the indictment. Where it appeared that the shot had been fired from the barrel of a percussion gun, which had been separated from the stock and lock, but which the prisoner fired by hitting the percussion cap which was on the nipple of the barrel with something which he took from his pocket: Patteson, J., held this to be a case within the statute; and afterwards, upon consulting with other judges upon the subject, refused to reserve the point for the opinion of the judges. R. v. Coates, 6 Car. & P. 394. 2. That he fired at the prosecutor, as stated in the indictment. Where the prisoner fired into a room in which he imagined the prosecutor was at the time, but in fact he was not there, nor within reach of the shot, it was holden that he could not be convicted, however evident his intention might be. R. v. Lovell, 2 Mo. & R. 39. So where a man at night fired towards that part of a fence over which he imagined the prosecutor was passing, when in fact the prosecutor passed over another part of the fence at more than five yards distant from it: it was holden, on the old statute on this subject (9 G. 1, c. 22,) not to be a shooting at the prosecutor. Empson's case, 1 Leach, 247. But if a man fire at A., and shoot B., he may be indicted for shooting and discharging the pistol or gun against B., for in fact he did so. R. v. Jarvis, 2 Mo. & R. 40. However, this third section of stat. 1 Vict. c. 85, must be considered to have reference more particularly to shooting without wounding; for shooting and wounding with intent to murder, is punishable with death, by the second section. See ante, p. 259. 3. That at the time it was fired, it was loaded with gunpowder and a bullet, or other destructive matter, as laid in the indictment. Where the indictment alleged that the pistol was loaded with gunpowder and a leaden bullet, and it appeared in evidence that no bullet was found, either in the wound or elsewhere, and the wound was such as might have been inflicted with either the wadding or a bullet: Bolland, B., after consulting Park and J. Parke, JJ., held that the evidence did not maintain the indictment. R. v. Hughes et al., 5 Car. & P. 126. But although the ball be not found, yet the jury may judge from circumstances detailed at the trial, whether the pistol was so loaded or not, and find accordingly. At the trial of Oxford, for shooting at the Queen, with a pistol loaded with gunpowder and a bullet, it was proved that the prisoner had fired two pistols at Her Majesty, but the bullets were never found; however it was proved by two witnesses that when he fired the pistols, they were near him, and something whizzed past them; it was proved by others that he had previously purchased balls and percussion caps, and balls and a bullet were found in his box; and he had said to one person, "if your head had come in contact with the ball, you would have found there was a ball in the pistol:" Lord Denman, C. J., after detailing the evidence, told the jury that it was not a matter of law, but a matter of fact for them to judge of from the circumstances, and to satisfy themselves that the pistol was loaded ;(by a juryman) " with a bullet ?" (Ld. Denman) " or a ball;" (Alderson, B.) "not with powder and wadding only." So, where the prisoner, in endeavouring to effect his escape, said to the prosecutor, "let me pass, or I will blow your brains out," and immediately fired, and wounded the prosecutor in his neck and chin; the prosecutor in his evidence, said he thought that the wound must have been given by a ball, from the sensation he felt at the time, and because it took him in one place; and another witness said that the report was very strong for so small a pistol: it was objected that there was not sufficient evidence that the pistol was loaded with a leaden bullet; but the court said that there was evidence to go to the jury, and they accordingly left it to the jury, who found the prisoner guilty. Weston's case, 1 Leach, 247. 4. The intent to murder, as ante, p. 258; and see R. v. Harris, 1 East, P. C. xviii. 11. Attempting to shoot at a Person, with Intent to Murder. Indictment. The jurors for our Lady the Queen, upon their to wit. Soath present, that A. B., on the day of in the year of our Lord -, having in both his hands a certain [gun] then loaded and charged with gunpowder and [one leaden bullet], did then, by drawing the trigger [" by drawing a trigger or in any other manner"] of the said gun, feloniously attempt to discharge the said gun, so loaded and charged as aforesaid, at one C. D., with intent in so doing then and thereby feloniously, wilfully, and of his malice aforethought to kill and murder the said C. D., ["to commit the crime of |