Intent: Consequences.

393

jury found that defendant was insane, and they did not believe that he was conscious that the effect of burning a hovel would be to injure any other person, Crompton J. ordered a verdict of not guilty to be entered. Davies, 1 F. & F. 69, 1858.

But a clearly wilful act is enough, without proof of malice in the popular sense, for that will be inferred from such act: per eight judges, in Farrington, R. & R. 207, 1811, under a rpd. s. requiring exactly the same intent' as in s. 60, above, where no motive was proved or suggested and defendant was of good character. So in Philp, 1 Moo. C. C. 263, 1830: arson of a ship by part owner, the intent, under another similar s. rpd., to prejudice co-owners was assumed, notwithstanding that he had insured the (whole) ship. And where a s. rpd. required no intent,' and the jury found that the arson of A.'s property was with intent to injure B. by throwing suspicion on B., the judges held that the indictment rightly alleged an intent to injure A., though they supported the conviction on a count alleging no intent. Newill, 1 Moo. C. C. 458, 1836.

It must be a wilful and malicious burning, otherwise it is only a trespass and not a felony. 1 Hale, P. C. 569. Therefore if A. shoot unlawfully at the cattle, &c. of B., whereby he sets the house of another on fire, it is not felony; for though the act he was doing was unlawful, he had no intention to burn the house. Ib. In this case, observes East, it should seem to be understood that he did not intend to steal the poultry, but merely to commit a trespass; for otherwise, the first attempt being felonious, the party must abide all the consequences.' East, P. C. 1019. But when defendant, intending to steal rum, carelessly set fire to it, and so the ship on which he was caught fire, it was held that he could not be convicted of arson: Faulkner, 13 Cox C. C. 550, 1877: C. O. R. Ir.: nine judges, who followed Pembliton, 1874, and held that whether the arson was a probable consequence of defendant's felony should have been put to the jury: c. a. See further under Murder. It is at least very doubtful whether the proposition laid down by East can now be considered law. If A. has a malicious intent to burn the house of B., and in setting fire to it without intending it burns that of C., it is felony. 1 Hale, P. C. 569; East, P. C. 1019. So if A. command B. to burn the house of C., and he do so, and the fire burns also another house, the person so commanding is accessory to the burning of the latter house. Plowd. 475; East, ib. It was said by Tindal C.J. in his charge to the Bristol grand jury, on the Special Commission in 1832: Where the statuto directs, that to complete the offence it must have been done with intent to injure or defraud some person, there is no occasion that either malice or ill will should subsist against the person whose property is so destroyed. It is a malicious act in contemplation of law, when a man wilfully does that which is illegal, and which, in its necessary consequence, must injure his neighbour, and it is unnecessary to observe that the setting fire to another's house, whether the owner be a stranger to the prisoner, or a person against whom he had a former grudge must be equally injurious to him; nor will it be necessary to prove that the house which forms the subject of the indictment in any particular case, was that which was actually set on fire by the prisoner. It will be sufficient to constitute the offence, if he is shewn to have feloniously set on fire another house, from which the flames communicated to the rest. No man can shelter himself from punishment on the ground that the mischief he committed was wider in its conse

quences that he originally intended.' 5 C. & P. 261 (and Cooper, ib. 536), note to Pinney, 3 St. Tr. N. S. 8, 1832.

But where two lads threw a lighted paper into a post-office letterbox, forming part of a house, whereby several letters were burnt, Williams J. said, that no doubt if they intended the fire to do its worst they would be guilty (under ss. 7, 8, above), but if they only set fire to the letters (for what is vulgarly called a lark'), and it was contrary to their intention to burn the house, they would not be guilty, even if the house had been burnt. Batstone, 10 Cox C. C. 20, 1864.

Evidence of similar acts] On an indictment for wilfully setting fire to a rick by firing a gun close to it, evidence was allowed to show that the fire was not accidental, that the day before defendant was seen near the rick-then also on fire-with a gun in his hand. Dossett, 2 C. & K. 306, 1846.

Two previous and abortive attempts to burn different parts of the same premises were held by Pollock C.B. to be admissible-to exclude the theory of accident-though defendant was not connected with either by the evidence: Bailey, 2 Čox C. C. 311, 1847.

In Gray, 4 F. & F. 1102, 1866, other claims by defendant on other insurance companies for fires were admitted by Willes J. to show that the fire in question was not by accident.

But the case turning on identity,' where defendant had been seen going away from a burning rick, the same judge refused to allow evidence that defendant and his wife had previously been seen laughing at another fire on the same premises and hindering water being thrown on it, apparently on the ground that such conduct did not tend to explain the charge then alleged: Harris, ib. 342, 1864. See generally, pp. 101-6, and Taylor, p. 102.

Motive] A woman indicted for arson with intent to defraud an insurance office was allowed to give evidence that she was in easy circumstances, and so had no pecuniary motive for the crime. Grant, 4 F. & F. 322, 1865.

Accessory before fact] A person may be convicted as an accessory before the fact to setting fire to a vessel of which he was at the time part-owner, though the principal had not been convicted. Wallace, Car. & M. 200; 2 Moo. C. C. 200, 1841.

Attempts] It is a sufficient overt act' to make a person guilty of attempting to set fire to a stack, if he go with the intention of setting fire to it, and light a match for that purpose, but abandon the attempt because he finds that he is being watched (or otherwise interrupted): per Pollock C.B., Taylor, 1 F. & F. 511, 1859.

Threats] See that title.

Arson is not triable at Q. S.

The following legal offences, in order of their penal gravity, must be carefully discriminated: 1. Common assault; 2. Assault occasioning actual bodily harm; 3. Inflicting grievous bodily harm or Wounding (a)-no intent being alleged; 4. Wounding (b) or causing any grievous bodily harm-intent being alleged.

There may be combinations of some of these offences or of them and others, e.g. forcing a person to take poison.

For assaults causing death, see Manslaughter and Murder.

Malice] is discussed under Grievous Bodily Harm.

On the sovereign] By s. 2 of 5-6 V. 51, the Treason A. 1842, discharging or aiming firearms at or near the person of' the sovereign, or discharging any explosive substance near thereto, or wilfully 'striking at him or her with any offensive weapon or in any other manner whatsoever,' or throwing anything with intent to injure him or her, or with intent to break the public peace,' or to alarm' the

Sovereign, or having anything dangerous or destructive near with intent to injure or any attempt to do any of these acts-is punishable by seven years' penal servitude and a public or private whipping.

In royal palaces, &c.] The special procedure of 33 H. 8, 12, though unrepealed, is now obsolete; see on it, 3 Inst. 140.

On person arresting] By s. 12 of 14-5 V. 19, the Prevention of Offences A. 1851, If any person liable to be apprehended under the provisions of this Act [which by repeals now relate only to offences by night], shall assault or offer any violence to any person by law authorised to apprehend or detain him, or to any person acting in his aid or assistance,' he shall be guilty of a misdemeanour and liable to three years' imprisonment with or without hard labour.

Statutes-Impeding a shipwrecked person] By 24-5 V. 100, Offences against the Person A. 1861, 17: Whosoever shall unlawfully and maliciously prevent or impede any person being on board of, or having quitted, any ship or vessel which shall be in distress, or wrecked, stranded, or cast on shore, in his endeavour to save his life, or shall unlawfully and maliciously prevent or impede any person in his endeavour to save the life of any such person, as in this section first aforesaid, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life.' Not triable

at Q. S.

Intent to do grievous bodily harm, &c.] By s. 18: 'Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, or shoot at any person, or by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms, at any person, with intent, in any of the cases aforesaid, to maim, disfigure, or disable any person, or to do some

other grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony as in s. 17. See Ward, 1872. Not triable at

Q. S.

For indictment, see Form No. 5, appended to Ind. A. 1915.

Loaded arms] By s. 19: Any gun, pistol, or other arms which shall be loaded in the barrel with gunpowder or any other explosive substance, and ball, shot, slug, or other destructive material, shall be deemed to be loaded arms within the meaning of this Act, although the attempt to discharge the same may fail from want of proper priming or from any other cause.'

Unlawful wounding] By s. 20: Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour. . .' maximum punishement: five years' penal servitude, which was imposed in T. Peters, 1 Cr. A. R. 141, 1908; but in A. J. Thompson three years' p. s. was reduced to eighteen months' imp. w. h. 1. in view of the absence of intent: 13 Or. A. R. 208, 1918. See under Grievous Bodily Harm.

6

For the physical meaning, see Wounding, which consists in giving another some dangerous hurt, and is only an aggravated species of battery: 3 Bl. Comm. 121.

Triable at Q. S.

For indictment, see Form No. 5, appended to Ind. A. 1915.

Garrotting, &c.] By s. 21: Whosoever shall, by any means whatsoever, attempt to choke, suffocate, or strangle any other person, or shall, by any means calculated to choke, suffocate or strangle, attempt to render any other person insensible, unconscious, or incapable of resistance, with intent in any of such cases thereby to enable himself or any other person to commit, or with intent in any of such cases thereby to assist any other person, in committing any indictable offence, shall be guilty of felony'. as in s. 17. In addition the court may order the offender, if a male, to be once privately whipped, subject to: (1) if he is under sixteen, the number of strokes at each such whipping shall not exceed twenty-five, and the instrument used shall be a birch rod; (2) in any other case the number shall not exceed fifty; (3) the court in its sentence shall specify the number, and the instrument to be used. The whipping must be inflicted within six months after sentence. 26-7 V. 44, 1, the 'Garrotting' A. Not triable at Q. S.

6

On clergymen] By s. 36: Whosoever shall by threats or force obstruct or prevent or endeavour to obstruct or prevent, any clergyman or other minister in or from celebrating divine service or otherwise officiating in any church, chapel, meeting-house, or other place of divine worship, or in or from the performance of his duty in the lawful burial of the dead in any churchyard or other burial place, or shall strike or offer any violence to, or shall, upon any civil process, or under the pretence of executing any civil process, arrest any clergyman or other minister who is engaged in, or to the knowledge of the offender is about to engage in, any of the rites or duties in this section aforesaid, or who to the knowledge of the offender shall be going to perform the same, or returning from the performance thereof,

shall be guilty of a misdemeanour, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labour.' Triable at Q. S.

On magistrates, &c.] By s. 37: Whosoever shall assault and strike or wound any magistrate, officer, or other person whatsoever, lawfully authorised, in or on account of the exercise of his duty in or concerning the preservation of any vessel in distress, or of any vessel, goods, or effects wrecked, stranded, or cast on shore, or lying under water, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to penal servitude for seven years. Triable at Q. S.

Intent to commit felony-Resisting peace officer and others] By s. 38: Whosoever shall assault any person with intent to commit felony, or shall assault, resist, or wilfully obstruct any peace officer in the due execution of his duty, or any person acting in aid of such officer, or shall assault any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence, shall be guilty of a misdemeanour, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for' two years with or without hard labour. See Smuggling. Triable

at Q. S.

Summary conviction a bar to further proceedings] By s. 45: ‘If any person against whom any such complaint as in either of the last three preceding sections mentioned [for common assault, aggravated assault on females or boys not more than fourteen] shall have been preferred by or on behalf of the party aggrieved, shall have obtained such certificate [of dismissal], or, having been convicted, shall have paid the whole amount adjudged to be paid, or shall have suffered the imprisonment or imprisonment with hard labour awarded, in every such case he shall be released from all further or other proceedings, civil or criminal, for the same cause.' Except in these cases criminal proceedings are no bar to an action; where there were both for the same assault, the O. P. refused to order election: Jones v. Clay, 1 B. & P., 1798; but in Mahon, 4 A. & E. 575, 1836, the Q. B. declined to pass sentence for assault while an action was pending. A discharge on giving security to be of good behaviour is a conviction for this purpose. To get the benefit of s. 45, on a dismissal, there must be a certificate. Miles, 24 Q. B. D. 423; 59 L. J. M. C. 56; 38 W. R. 334; 17 Cox C. C. 9, 1890: C. C. R.; see also Blaby.

A matrimonial order-see Judgment-can only be made by justices when the assault is 'aggravated.'

Actual bodily harm] By s. 47: Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable to be kept in penal servitude . . .' and

Common assault] 'Whosoever shall be convicted upon an indictment for a common assault shall be liable to be imprisoned for any term not exceeding one year, with or without hard labour.'

The phrase actual bodily harm seems only to occur here and to refer to ss. 26, 35. Bodily harm is not defined. It may mean internal as well as external injuries, and need not be permanent