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 a doubt whether the defendant did not mistake the person at whom he attempted to shoot, for another, against whom he had malice, 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 attempting to shoot, with intent to maim, disfigure, disable, or do some grievous bodily harm, as in the form, No. 12, post, p. 274. Felony, transportation for life, or for not less than fifteen years, or imprisonment [with or without hard labour, sect. 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 prisoner presented a gun at him, and attempted to discharge it at him, by drawing the trigger or otherwise, as stated in the indictment; that the gun at the time was in a state to be fired, and that it was loaded in such a manner, that if it had been fired, it was calculated to produce death. If the gun or pistol have the touchhole plugged, so that it cannot be discharged, R. v. Harris, 5 Car. & P. 159, or if it be not primed, R. v. Carr, R. & Ry. 377; and see R. v. Baker, 1 Car. & K. 254, or if the priming be so wet or damp that it cannot take fire, R. v. James, 1 Car. & K. 530, or if the gun or pistol have a flint lock, but no flint, R. v. Lewis, 9 Car. &P.523; in these and the like cases, the gun and pistol are not deemed loaded arms, within the meaning of the statute; and although the prisoner may have imagined them to be in a fit state for shooting, and sufficiently loaded, and although he level them at the prosecutor, and by drawing the trigger or otherwise attempt to discharge them, he cannot be convicted. So, if they be not loaded in such a manner as to kill, if discharged, as mentioned in the last case, ante, p. 271, the prisoner cannot be convicted. So, the pistol or gun must be levelled at or pointed towards the prosecutor, and the prisoner must have made an attempt, by drawing the trigger or otherwise, to discharge it, in order to convict him. Where the prisoner demanded some title deeds from the prosecutor, and being refused, said, "then you are a dead man," and imme diately unfolded a great coat which he had on his arm, and took from it a blunderbus; but before he could point it at the prosecutor, a person standing near seized him by the two arms, and he was secured: it was holden that he could not be convicted. R. v. Lewis, 9 Car. & P.523. So, where it appeared that the prisoner took a small pistol from his pocket, and saying to the prosecutor, "I'll settle you," cocked it and pointed the muzzle towards the prosecutor; but at that moment, a person present rushed towards the prisoner, and caught hold of the barrel and cock of the pistol, and had his hand so placed that the trigger could not go back; the prisoner, however, had his finger on the trigger and pulled at it, but for the reason just mentioned it did not explode: Parke, J., held that it was not a case within the statute; the words in the statute are, whosoever "shall by drawing a trigger or in any other manner attempt to discharge any kind of loaded arms at any person;" here the trigger was not drawn, the prisoner being prevented from drawing it; and the words, " or in any other manner," mean some manner analagous to drawing a trigger, as in the case of a percussion lock, striking the cap with a hammer, or, in the case of a matchlock, putting a brimstone match to the touchhole, or the like. R. v. St. George, 9 Car. & P. 483. 2. The intent to murder, as ante, p. 258. 12. Shooting or Attempting to Shoot, with Intent to do grievous bodily Harm. Indictment. The jurors for our Lady the Queen, upon their to wit. oath present, that A. B., on the day of in the year of our Lord- "" a certain [gun] then loaded and charged with gunpowder and [one leaden bullet], which gun he the said A. B., in both his hands then had and held, did then feloniously shoot and discharge at and against one C. D., with intent in so doing then and thereby to maim the said 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. [Second count.] And the jurors aforesaid upon their oath aforesaid do further present, that the said A. B., on the day and year aforesaid, a certain other gun, then loaded and charged with gunpowder, and one leaden bullet, which gun he the said A. B., in both his hands then had and held, did then feloniously shoot and discharge at and against the said C. D., with intent in so doing then and thereby to disfigure the said 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. [Third count.] And the jurors aforesaid upon their oath aforesaid do further present, that the said A. B., on the day and year aforesaid, a certain other gun, then loaded and charged with gunpowder and one leaden bullet, which gun he the said A. B., in both his hands then had and held, did then feloniously shoot and discharge at and against the said C. D., with intent in so doing then and thereby to disable the said 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. [Fourth count.] And the jurors aforesaid upon their oath aforesaid do further present, that the said A. B., on the day and year aforesaid, a certain other gun, then loaded and charged with gunpowder and one leaden bullet, which gun he the said A. B., in both his hands then had and held, did then feloniously shoot and discharge at and against the said C. D., with intent in so doing then and thereby to do some grievous bodily harm to the said 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. [Fifth count.] And the jurors aforesaid upon their oath aforesaid do further present, that the said A. B., on the day and year aforesaid, a certain other gun, then loaded and charged with gunpowder and one leaden bullet, which gun he the said A. B., in both his hands then had and held, did then feloniousiy shoot and discharge at and against the said C. D., with intent in so doing then and thereby to resist and prevent ["resist or prevent"] the lawful apprehension [or detainer] of him the said A. B. [or of one E. F.]: 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. [An indictment for an attempt to shoot, may readily be framed from the above form, and from the form, ante, p. 272. Felony, transportation for life, or for not less than fifteen years, —or imprisonment [with or without hard labour, sect. 8] for not more than three years. 1 Vict. c. 85, s. 4. 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. The shooting, as ante, p. 271; that is to say, that the prisoner fired, see ante, p. 271, that he fired at the prosecutor, see ante, p. 271, and that the gun was at the time loaded in such a manner as was calculated to effect the injury intended. See ante, p. 271. We have seen that where the intent is to murder, a loading with gunpowder and wadding merely will not be sufficient; but a gun or pistol so loaded, when fired near to the party, may produce grievous bodily harm, or may disfigure the party, and therefore may be deemed "loaded arms" within this section of the statute, although not likely to produce death. R. v. Kitchen, R. & Ry. 95. 2. The intent to maim, &c., as ante, p. 264. to wit. 13. Attempting to Drown. 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 feloniously did [take one C. D. (the said C. D. being then an infant of tender years, to wit, of the age of years) into both the hands of her the said A. B., and did then feloniously cast, throw, and push the said C. D. into a certain pond there situate, wherein there was a great quantity of water of great depth, to wit, of the depth of and did then feloniously keep and continue the said C. D. in the water of the said pond for a long space of time, to wit, for the space of and by so casting, throwing, and pushing the said C. D., into the said pond, and keeping and continuing him there as aforesaid, the said A. B., then feloniously did attempt to drown the said C. D.], with intent in so doing then and thereby feloniously, wilfully, and of her 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. Felony, transportation for life, or for not less than fifteen years, or imprisonment [with or without hard labour, sect. 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. Evidence. To maintain this indictment, the prosecutor must prove 1. The attempt to drown, as stated in the indictment. 2. The intent to murder, as ante, p. 258. 14. Attempting to Suffocate. Indictment. The jurors for our Lady the Queen, upon their day of to wit. oath present, that A. B., on the in the year of our Lord —, [a certain —, which he the said A. B., in both his hands then had and held, in and upon the mouth and nostrils of one C. D., then feloniously did forcibly put and place, and the same upon the mouth and nostrils of the said C. D., then feloniously did forcibly keep for a long space of time, to wit, for the space of —, for the purpose of preventing the said C. D. from breathing; and did then by so putting and placing the said in and upon the mouth and nostrils of the said C. D., and keeping the same there as aforesaid, feloniously attempt to suffocate the said 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. Felony, transportation for life, or for not less than fifteen years, or imprisonment [with or without hard labour, sect. 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. Evidence. To maintain this indictment, the prosecutor must prove1. The attempt to suffocate, as stated in the indictment. 2. The intent to murder, as ante, p. 258. to wit. 15. Attempting to Strangle. 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 [a certain silk handkerchief about the neck and throat of one C. D., then feloniously did forcibly |