whereof the same dog did then and there grievously bite the said A. B. in and upon the right leg of him the said A. B., and the said leg of him the said A. B. was thereby then and there grievously hurt, wounded, and lacerated, against the peace, &c. [Add a count for a common assault.]

If the circumstances justify belief that there was an intent to murder, e. g. if by premeditated, though passive negligence, a master allows a child of tender years, being unable to provide food for, or take care of itself, to perish for want of food, which as its parent or master he was bound to provide, or if by active rigour and harsh usage, even to an adult, as by confining him without food, &c. he bring about the same result (ƒ), a count may be introduced alleging that intent, as in the precedents under the next head, in order that the prisoner, if convicted on such count, may be liable to the punishment of hard labour under 9 G. IV. c. 31, s. 25, and that the costs of the prosecution may be allowed under 7 G. IV. c. 64, s. 23; whereas if only convicted of common assault from failing to prove the rest they cannot. See as to cruel treatment of children, apprentices, &c. post, Sect. 10 of this chapter.

Particular Assaults how punishable under 9 G. IV. c. 31, s. 25.

3. Assaults aggravated by Intent to commit a higher Crime, as Felony.]-Assaults, with intent to commit felony, are punishable with hard labour, in addition to imprisonment and fine. In such cases, however, the intent must be expressly charged in the indictment, as evidence of the intent, where it constitutes a substantive offence, is not admissible under a general charge of assault (g). For this, among other purposes, it is enacted, by 9 G. IV. c. 31, s. 25, that where any person shall be charged with and convicted of any of the following offences as misdemeanours, that is to say, of any

Assault upon any peace officer or revenue officer, in the due execution of his duty, or upon any person acting in aid of such officer (h);Assault upon any person, with intent to resist or prevent the lawful apprehension or detainer of the party so assaulting, or of any other

(f) See R. v. Squires, 1 Russ. C. & M. 16, 426; R. v. Self, 1 Leach, C. C. 137, and the dicta of Lord Denman and Pat. teson, J., in Urmston v. Newcomen, 4 Ad. & E. 905; 4 Nev. & M. 454, S. C.

(g) Dict. per Lord Mansfield, 21 How. St. Tri. 1219.

(h) When a constable was called on by a collector of land tax to accompany him into the house of a person from whom he was demanding payment of an

arrear, and had reasonable ground from previous threats, &c. to expect violence, the constable was held justified in staying while the collector remained to be paid, as long as there was reason to expect violence; and the owner of the house who used force to remove them was held indictable for assaulting a peace officer in the execution of his duty, R. v. Clark and Austen, 3 Ad. & El. 287; 4 Nev. & M. 671.

person for any offence for which he or they may be liable, by law, to be apprehended or detained, or of any

Assault committed in pursuance of any conspiracy to raise the rate of wages;

In any such case the court may sentence the offender to be imprisoned with or without hard labour, in the common gaol or house of correction, for any term not exceeding two years; and may also (if it shall so think fit) fine the offender, and require him to find securities for keeping the peace, and the prosecutor is allowed his costs (i).

In indictments for assaults with intent to commit felony, the question of intent is peculiarly for the consideration of the jury, who may negative the intent, and yet find the prisoner guilty of a common assault, for which he may receive judgment of fine or of imprisonment, but without hard labour. If it appears at the trial that the offence of felony, e. g., rape, was completed, by penetrating into the person to some extent, though without breaking the hymen (k), the misdemeanour will be merged, and the prisoner must be acquitted, but may be detained, in order that an indictment for the felony may be preferred against him at the same session, or if that is impracticable, from the discharge of the grand jury, he should be again taken before a magistrate; who, on hearing the evidence, will re-commit the prisoner, and bind the parties over to prosecute at the next sessions or assizes (1).

The trespass incident to a felony merges in it in order to spur injured parties to bring the offender to trial for the sake of public justice, and the civil remedy by action remains after conviction or acquittal (m).

Indictment for an Assault with intent to Ravish.

That A. B. late of, &c. on, &c. with force and arms, at, &c. in and upon one C. D. (n) in the peace of God and our said Lady the Queen then and there being, did make an assault, and her the said C. D. did then and there beat, wound, and ill-treat, with intent her the said C. D. then and there against her will (o), felo

(i) 7 G. IV. c. 64, s. 23.

(k) Reg. v. Jordan and another, 9 C. & P. 118; R. v. Allen, id. 31; Rue v. Mac Rue, 8 C. & P. 641; Reg. v. Lines, C. & Kir. 393.

(1) See ante, p. 193, R. v. Harmwood, and other cases.

(m) Crosby v. Leng, 12 East, 410; Peddell v. Rutter, 8 C. & P. 337; Marsh v. Keating, 1 Bing. (N. C.) 217, in error, Dom. Proc.; White v. Spettious, 14 L.

J. 99. (Exch.) Hil. 1845,

(n) If the female be a child under ten years of age, add here "a woman child under the age of ten years, to wit, of the age of nine years."

(0) If under the age of ten years, lay the intent to be "with intent her the said C. D. then and there unlawfully and feloniously to carnally know and abuse."

Carnally knowing a child under ten

Y

niously to ravish and carnally know, and other wrongs to the said C. D. then and there did, against the form of the statute, &c. and against the peace, &c. [Add a count for a common_assault] (p).

4. Assaults aggravated by the Employment or Office of the Party assaulted.]—The other assaults enumerated in 9 G. IV. c. 31, s. 25, above recited, may fall under this head. In support of an indictment for an assault on a peace officer, it is not necessary to prove his appointment; but evidence that he was accustomed to act as such, and was known to be such when assaulted, as by having produced his staff, or by being generally known to be a constable of the place (q), or by having declared his intention to arrest in the queen's name (r), and being in the legal discharge of his duty at the time, will suffice (s).

Assaults on Masters or their Bailiffs, &c. by Servants.]—The special enactment of 5 El. c. 4, s. 21, still exists for the imprisonment for a year or less of any servant, workman, or labourer who shall wilfully make assault or affray on his master or mistress, or on any other who shall at the time have the charge or oversight of any such servant, or of the work wherein he is appointed or hired to work, on conviction, before two justices, &c. by confession or oath of two honest men.

Indictment for assaulting a Constable in the Execution of his Duty. That A. B. late of, &c. on, &c. with force and arms, at, &c. in and upon one C. D. then and there being one of the constables of the said parish of in the county of, and in the due execution of his duty as such constable, then and there also being, did make an assault, and him the said C. D. did then and there beat, wound, and ill-treat, and other wrongs to the said C. D. then and there did, against the form, &c. and against the peace, &c. [Add a count for a common assault.]

Indictment for an Assault with intention to obstruct the Apprehension of a party charged with an Offence (t).

That A. B. late of, &c. on, &c. with force and arms, at, &c. in and upon one C. D. a subject of our said Lady the Queen then and there being, wilfully and unlawfully did make an assault, and him the said C. D. did then and there beat, wound, and ill-treat, with intent in so doing wilfully and unlawfully to obstruct, resist, and prevent the lawful apprehension and detention of him the said A. B. for a certain offence, to wit, for, &c. [here state the offence with which the defendant was charged] for which said offence he the said A. B. was then and there liable by law to be apprehended, imprisoned, and detained, against the form of the statute, &c. and against the peace, &c. (t).

And the jurors, &c. that the said A. B. heretofore, to wit, on, &c. aforesaid, with force and arms, at, &c. aforesaid, în and upon the said C. D. wilfully and unlawfully did make an assault, and him the said C. D. did then and there beat, wound, and ill-treat, with intent in so doing wilfully and unlawfully to obstruct, resist, and prevent the lawful apprehension and detention of him the said A. B. for a certain offence before them committed, to wit, at, &c. aforesaid, for the committing of which said last-mentioned offence he the said A. B. was then and there liable by law to be apprehended, imprisoned, and detained, against the form, &c. and against the peace, &c. [Add a count for a common assault.]

(1) The following count which formed the fourth in R. v. Fraser, 1 Mood. C. C. 419, will (though for cutting and wounding) be useful in framing indictments for common assaults, with intent to obstruct arrest :

"in and upon said J. C. in the peace of God and our said Lady the Queen, then and there being, unlawfully, &c. did make an assault, and then and there unlawfully, &c. did cut and wound said J. C. in and upon the head and face of said J. C., with intent to resist and prevent the lawful apprehension and detainer of him the said M. F., for a certain offence by him committed, for which he the said M. F. was then and there liable by law to be apprehended and detained, that is to say, for then and there

wilfully and maliciously committing damage and injury upon certain plants and roots then and there growing in a certain garden of and belonging to H. I., there situate, against the statute, &c. and against the peace, &c."

The prosecutor, a metropolitan police constable, having no warrant, attempted to apprehend the prisoner under 7 & 8 G. IV. c. 29, s. 63, for an offence for which he might be convicted before a justice of peace by s. 42 and 43 of that act (and also by 7 & 8 G. IV. c. 30, s. 21, 22, and 24, and 28), viz. for wilfully and maliciously plucking and cutting flowers from plants or roots in a garden, with intent to steal the flowers; and a conviction on the above count was held good.

Indictment for assaulting a Gamekeeper in the Execution of his Duty. (See post, Sect. XV. of this Chapter, tit. Game.)

Indictment for assaulting a Collector of a Turnpike Toll in the Execution of his Duty (u).

That A. B. late of, &c. on, &c. with force and arms, at, &c. in and upon one C. D. then and there being one of the collectors and receivers of the tolls payable by virtue of a certain act of parliament made in the third year of the reign of our said Lady the Queen, intituled "An Act to amend the general laws now in being for regulating turnpike roads in that part of Great Britain called England," in the due execution of his office of collector and receiver of the said tolls, then and there being, did make an assault, and him the said C. D. so being in the execution of his said office as aforesaid, then and there did beat, wound, and ill-treat, and other wrongs, &c. against the peace, &c. [Add a count for a common assault.]

SECTION III.

BARRATRY.

BARRATRY is the habitual moving and exciting or maintaining suits and quarrels, either at law or otherwise (x), and consists not in any single act, however flagrant, but in a succession of acts, constituting a course of behaviour (y). It is not, therefore, necessary to specify in the indictment the particular acts on which the prosecutor relies; but the court will compel him, before the trial, to inform the defendant by a written notice of those particulars, and will exclude him from offering evidence of any others (z).

Indictment for Barratry.

That A. B. late of, &c. on, &c. and on divers other days and times, in the county of (a), was and yet is a common barrator; and that he the said A. B. on the said, &c. and on divers other days and times, in the county aforesaid, divers quarrels, strifes, and controversies among the honest and quiet liege subjects of our lady the Queen, did unlawfully move, procure, stir up, and excite to the common nuisance of the liege subjects of our said Lady the Queen, and against the peace, &c.

(u) This offence, under 3 G. IV. c. 126, s. 139, is punishable summarily by a forfeiture of 107.; but that provision does not destroy the right of indicting at common law. See p. 310. (x) Co. Lit. 368.

(y) Hawk. B. 2, c. 25, s. 59.

(z) Per Ashhurst, J., in J. Anson v. Stuart, 1 T. R. 754; and see ante, p. 217, 218, and post, Sect. 11, Embezzlement. (a) It is not necessary to specify any vill, Hawk. B. 2, c. 25, s. 59.