'Maiming': Wounding.'

473

was thereby rendered useless to the owner, and continued so for some months; but at the trial it was stated that it was likely to be perfectly sound again in a short time. The judges held a conviction right, as the word 'wounding' does not imply a permanent injury. Haywood, R. & Ry. 16; East P. C. 1076, 1801. But maiming, it seems, does. East, ib. 1077; Jeans, 1 C. & K. 539, 1844, under 7-8 G. 4, 30, 16, rpd. Where defendant was indicted under rpd. 4 G. 4, 54, 2, for wounding a sheep-he had set on a dog which inflicted several severe bites-Park J. said, 'This is not an offence at common law, and is only made so by a statute; and I am of opinion that injuring a sheep, by setting a dog to worry it, is not a maiming or wounding within the meaning of that statute.' Hughes, 2 C. & P. 420, 1826; but this decision is doubted as the dog was an instrument': 2 Russ. Cri. 1827. The word 'wound' in s. 40, above, is to be construed according to its ordinary meaning; and injuries to a horse's tongue, apparently caused by a pull of the hand, were held to be a 'wounding.' Bullock, 37 L. J. M. C. 47; L. R. 1 0. C. R. 115; 11 Cox C. C. 125, 1868. Defendant poured nitrous acid into the ear of a mare, some of which getting into the eye produced blindness; a conviction for 'maiming' was held to be right. Owens, 1 Moo. C. C. 205, 1828, under 7-8 G. 4, above. Where defendant set fire to a cowhouse, and a cow in it was burned to death, Taunton J. ruled that this was a killing of the cow within the same s. Haughton, 5 C. & P. 559, 1833.

Malice and intent] See 24-5 V. 97, 58, p. 387. As always, some evil intent in defendant must appear. Thus, in Mogg, Park J. left it to the jury to say whether defendant had administered the sulphuric acid with the intent of improving the appearance of the horses (there being evidence of a practice of that kind by grooms) or that charged; in the former case they ought to acquit him. And where defendant caused the death of a mare by inserting the handle of a fork into her vagina, and pushing it into her body, it was held there was sufficient malice to support an indictment under s. 40, above, though there was no evidence that he was actuated by ill-will towards the owner, or spite towards the mare, or by any motive except the gratification af his own depraved mind. The jury found that he did not, in fact, intend to maim, wound, or kill the mare, but that knowing what he was doing would or might have that effect, he nevertheless did what he did recklessly and not caring whether the mare was injured or not. Welch, 1 Q. B. D. 23; 45 L. J. M. C. 17; 13 Cox C. C. 121, 1875: C. C. R.; cf. Presumption of Malice.

Cruelty] Offences under the Cruelty to Animals A., 39-40 V. 77, passed in order to regulate vivisection, may, by s. 15, where the penalty which can be imposed exceeds five pounds, be prosecuted on indictment at the request of the accused. A custom of the district is no defence to cruelty: Waters v. Braithwaite, 78 J. P. 124; 110 L. T. 266; 30 T. L. R. 107; 24 Cox C. C. 34, 1913: K. B. D.-not milking

cow.

6

Slaughter-houses] By s. 8 of 26 G. 3, 71, the Knackers A. 1776, unlicensed slaughtering of cattle, except for butchers' meat,' or flaying of dead horses, &c., is a felony punishable by fine or imprisonment and corporal punishment' or transportation for seven years (maximum). By s. 9, destroying hides of such animals is a misdemeanour. The A. is repealed for London by 54-5 V. 76, 142.

6

CHALLENGING TO FIGHT.

See under Assault. It is a very high offence to challenge another, either by word or letter, to fight a duel, or to be the messenger of such a challenge, or even barely to endeavour to provoke another to send such a challenge, or to fight; as by dispersing letters to that purpose, full of reflections and insinuating a desire to fight, &c.' 2 Hawk. P. C. 1, 63, 3; see Knock, 1877. Thus, a letter saying, ' You have behaved like a blackguard. I shall expect to hear from you on this subject, and will punctually attend to any appointment you may think proper to make,' was held indictable. Philipps, 1808; Rice, 3 East, 581, 1803. No provocation, however great, is a justification, although it may affect the punishment. Ib. Provoking to challenge is a form of Incitement, which see: Steph. Dig. Cr. L. 54 n.

Evidence] Prosecutor must prove inter alia, where it does not appear from the writing or words used themselves, the intent to challenge, or to provoke to a challenge. Thus, in cases where the words are ambiguous, he must show the circumstances in which they were uttered. Thus, words of provocation, as liar,' or 'knave,' though a mediate provocation to a breach of the peace, do not tend to it immediately, like a challenge to fight, or a threatening to beat another. King, 4 Inst. 181, 1586. Yet these, or any other words, would, perhaps, be indictable if proved to have been spoken with an intent to provoke the sending of a challenge. 1 Russ. Cri. 440, citing the rule, 3 Inst. 158: quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud.

Venue] Where a challenging letter is posted in one county, and delivered in another, the venue may be laid in the former. If the letter is never delivered, the defendant's offence is the same. 'On trials for high treason, intercepted letters are received in evidence as overt acts of treason in the county where they were written': per L. Ellenborough. Williams, 2 Camp. 506, 1810.

Criminal informations for this misdemeanour have often been granted in the High Court: Russ. ib.; but it is triable at Q. S.

CHAPELS, OFFENCES IN.

See Disturbing Public Worship and under Bigamy.

CHARACTER, FALSE, GIVING OR USING.

Common law] See Toshack; Sharman, 1854; Moah, D. & B. 550; 27 L. J. M. C. 230; 4 Jur. N. S. 464; 7 Cox C. C. 503, 1858: letter of recommendation; cf. Hodgson, 1856.

Statutes] See 32 G. 3, 56, 4; 6 E. 7, 5, 1, 2. By 57-8 V. 60, 104, forgery, fraudulent alteration, use, &c. of a 'certificate of competency (s. 93) is a misdemeanour; for punishment, see Seamen.

CHASTISEMENT, EXCESSIVE.

See under Assault, Child, Manslaughter, Murder.

CHEATING.

AT COMMON LAW.

The question whether or not a fraudulent transaction-for the meaning of which see Agents-is indictable, has long been of leas importance than it formerly was, because several cheats have been made indictable by a line of statutes, the latest being 6-7 G. 5, 50, which include that class of offences known as obtaining money and goods by false pretences.

Cheats at common law 'may, in general, be described to be deceitful practices, in defrauding or endeavouring to defraud another of his known right by means of some artful device, contrary to the plain rules of common honesty; as by playing with false dice or by causing an illiterate person to execute a deed to his prejudice by reading it over to him in words different from those in which it was written,' &c. Hawkins P. C. I. 71, 1. On this East, P. O. 817, observes: 'It may be doubted whether [this] description be sufficiently accurate

or distinct to be taken as a definition of the offence at common law. I should rather say that it consists in the fraudulent obtaining the property of another by any deceitful and illegal practice or token (short of felony) which affects or may affect the public.' He himself, ib. 860, points out that to constitute a cheat properly so called there must be a prejudice received, both at common law and under . 33 H. 8, 1, and 30 G. 2, 24,' rpd., citing Ward, 1727, which see under Forgery and Attempts, below.

East's definition is accepted 9 Halsbury, 689, with the addition engrafted by many later cases: the contrivance used must be of such a character that common prudence and caution are not sufficient security against a person being defrauded thereby.'

What is evidently intended is such conduct as shows a design of systematic cheating, according to the doctrine in Wheatly

and

Young, i.e. in the passages cited from L. Mansfield and Buller J., below of the kind which in its nature is calculated to defraud numbers '-and in some of the following cases. The distinction sometimes attempted, e.g. in Brailsford, below, between 'acts which are merely improper and immoral and those which tend to produce a public mischief' is unscientific because all immoral wrong tends to produce public mischief, and even if an injury is exclusively confined to an individual, the public, of which he is a member, suffers pro tanto. What is probably meant is that there are infinite degrees of public mischief between 'public' and 'private' frauds and the criminal law can only take notice of the more serious, i.e. those affecting numbers at once. Whether a given fraud affects or may affect sufficient 'numbers' or not, and is, therefore, public or private, naturally depends on the view of individual judges, and hence there is considerable variation in the cases. The courts have always been anxious to maintain the distinction between the civil and the criminal, but the

differentiation is not yet complete, and in Cheats and Frauds it is especially difficult to draw the line between them. In them a link is naturally found between civil and criminal wrongs, and hence it is not always easy to determine whether a given act is indictable or actionable (if it is not both). Cf. False Pretence.' In Jones, 1 Salk. 379; 2 L. Raym. 1013; 6 Mod. R. 105, as 'Anon.,' 1704, where an indictment for pretending to A. to be sent by B. to get twenty pounds, and in fact getting it, was quashed, Holt O.J. said, 'It is not indictable unless he came with false tokens; playing with false dice is, for that is such a cheat as a person of an ordinary capacity cannot discover. We are not to indict one man for making a fool of another; let him bring his action.' But may not this be said of any fraud? This decision-assuming that all the relevant facts are reported-is the more remarkable because Hale, 2 P. C. 506, says: "If A. comes to B. and by a false message or token receives money of him and carries it away, it is no felony but a cheat punishable by indictment at common law or on 33 H. 8, 1, rpd. Hawkins, however, I. 71, 2, thinks Holt's 'the better opinion. because it [the fraud] is accompanied with no manner of artful contrivance but wholly depends on a bare naked lie; and it is said to be needless to provide severe laws for such mischiefs against which common prudence and caution may be a sufficient security.' Jones was followed in Nunos, 2 Sess. Cas. 377, case 201, or Munoz, 2 Str. 1127, 1740. It seems that a very wide meaning was given to 'false tokens,' which see, below. Jones was followed in Bryan, 2 Str. 866; 2 Sess. Cas. 23, 1730. East is clearly mistaken in saying that the goods were obtained. Holt seems to have pressed his opinion rather far: see in his own reports, 354, Glanvill, 1710, where there are several other instances. Powell J. said that a woman who threatened several men, unless they paid her, to lay her bastard' to them, could be indicted; Holt said: but not if she goes to one particular person.'

However, legislation has expressly declared many forms of fraud indictable crimes. Opinion, in fact, general and legal has gradually changed in favour of greater definiteness in the law so that Dr. Groenvelt's case could hardly occur to-day: he was fined 201. and committed to gaol for his ill-practice upon the body of J. S. in 1692, by which J. S. died, by the censors of the College of Physicians until he should be delivered by the College or otherwise by due course of law': 1 L. Raymond, 213, 1697. In discharging him the K. B. said: Mala praxis is a great misdemeanour and offence at common law (whether it be for curiosity and experiment or by neglect) because it breaks the trust which the party has placed in the physician tending directly to his destruction.'

The crown and the public] Those frauds which affect the crown and the public at large are also clearly the subject of indictment though they may arise in the course of some particular transaction or contract with private individuals': 2 Russ. Cri. 150, citing Brailsford: fraudulently obtaining a passport from the Foreign Office for use by another; on a doubtful point in which see under Libel; also below.

Public justice] All cheats which are levelled against the public justice of the kingdom are indictable at common law. East P. C. 821. Some such cheats will be found under the head of False Personation, Forgery, &c. East cites from Tremaine's Pleas of the Crown, 101, where there are many precedents of indictments for cheats; Black