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and she takes it, the crime is as much within this Act of Parliament as if it had been intended for Mrs. Davis. If a person sends poison with intent to kill one person, and another person takes that poison, it is just the same as if it had been intended for such other person."(e)

But the correctness of this ruling has been doubted, and it has been considered, that where an indictment under the 1 Vict. c. 85, states an administering of poison to a person, with intent to murder such person, it must be proved that the prisoner did intend to murder such person; but that it is sufficient, under that Act, to state that the prisoner administered poison "with intent to commit murder" generally. An indictment on the 1 Vict. c. 85, charged the prisoner with causing poison to be taken by G. Power, with intent to murder the said G. Power; but it appeared that the prisoner's intention was to murder Catherine Power, and that G. Power had accidentally swallowed the poison, and the prisoner was found guilty. Parke, B., afterwards said he had spoken to Alderson, B., on the subject, and that they both much doubted whether the verdict could be supported, the averment of the intention not being proved as laid. He was aware that there was a case(ƒ) where, under the old law (9 Geo. 4, c. 31, s. 11), a conviction had taken place, though there was a similar defect in the evidence, but he doubted the propriety of that decision; and, to provide for any such case, the language of the new statute, under which the prisoner was tried (1 Vict. c. 85, s. 2), had been altered; for under that section it was sufficient to allege that the prisoner did the act "with intent to commit murder," generally. The prosecutor had here unnecessarily described the intention more *particularly than he need have done, but having so de[*1003 scribed it, it appeared to the learned Baron, that the prosecutor was bound to prove the intention as laid. His lordship therefore desired a fresh indictment to be prepared, alleging the intent to have been "to commit murder" generally, under which the prisoner was tried and convicted, and sentenced to be transported for life.(g)

(e) Rex v. Lewis, 6 C. & P. 161 (25 E. C. L. R.).

(f) Rex v. Lewis, supra.

(g) Reg. v. Ryan, 2 M. & Rob. 213. It seems probable that the intention of the Legislature in providing, by the 43 Geo. 3, c. 58, and the 9 Geo. 4, c. 31, for attempts to commit murder, was to punish every attempt where, in case death had ensued, the crime would have amounted to murder; and the proviso in those statutes, that if the acts were committed under such circumstances that if death had ensued it would not have amounted to the crime of murder, the prisoner should be acquitted, tends to show that the Legislature so intended. The tendency of the cases, however, seems to be, that an actual intent to murder the particular individual injured must have been shown under those statutes, and also under the 1 Vict. c. 85, where the intent is so laid. Where a mistake of one person for another occurs, the cases of shooting, &c., may, perhaps, admit of a different consideration from the cases of poisoning. In the case of shooting at one person under the supposition that he is another, although there be a mistake, the prisoner must intend to murder that individual at whom he shoots; it is true he may be mistaken in fact as to the person, and that it may be owing to such mistake that he shoots at such person, but still he shoots with intent to kill that person. So in the case of cutting; a man may cut one person under a mistake that he is another person, but still he must intend to murder the man whose throat he cuts. In Reg. v. Mister, Salop Spr. Ass. 1841, cor. Gurney, B., the only count charging an intent to murder was the first, and that alleged the intent to be to murder Mackreth; and although on the evidence it was perfectly clear that Mister mistook Mackreth for Ludlow, whom he had followed for several days before, yet he was convicted and executed, and I believe the point never noticed at all. The case of poisoning one person by mistake for another seems different, if the poison be taken in the absence of the prisoner; for in such case he can have no actual intent to injure that person. These difficulties, however, seem to be obviated by the 1 Vict. c. 85, which, instead of using the words "with intent to murder such person," has the words "with intent to commit murder." It may perhaps be doubted whether this alteration was not intended to enable the prosecutor to charge a shooting at one person with intent to murder another person; and doubts may perhaps be entertained, notwithstanding the very great weight due to any opinion of the very learned Barons, who considered this point in Reg. v. Ryan, whether a count, stating a shooting with intent to commit murder, would not be bad on demurrer, in arrest of judgment, and on error, for not stating the person intended to be murdered. It is true that it would follow the words of the Act; but in many cases that is not sufficient. Thus in Reg. v. Martin, 8 Ad. & E. 481 (35 E. C. L. R.), 3 Nev. & P. 472, it was held that an indictment for obtaining goods

VOL. I.-51

On an indictment for shooting at a person unknown with intent to murder him, it appeared that the prisoner, being irritated at a crowd of boys, who were following him, discharged a loaded pistol among them, and thereby wounded a person who was passing along the street; there was nothing to show any intent to shoot at any particular person, nor was the person injured one of those who were teasing him. Jervis, C. J. (Alderson, B, being present), said, "I do not think that the charge contained in this indictment is proved; doubtless at common law, if the person wounded had been killed, it would have been murder: but this is an offence under the statute, and must be proved strictly in its very terms." It was then proposed to amend the indictment, by charging the prisoner with an intent to murder in the words of the 1 Vict. c. 85, s. 2. Jervis, C. J.: "That would no doubt *1004] be a good indictment after *verdict under the 7 Geo. 4, c. 64, s. 20, being in the words of the statute; but it may be a question whether it would not be demurrable for generality. We think that if we amend, we ought to do it in such a manner as that the indictment shall not be in any way defective. The prisoner has pleaded, and he ought to have an opportunity of demurring, which now of course he cannot do. We must therefore refuse the application."(h)

The prisoner was indicted for shooting at H. Lawton with intent to do him grievous bodily harm. The prisoner had been assaulted and annoyed by several persons, among whom was Lawton. These persons were standing together in a group of about fifteen, and the prisoner fired a pistol into the group, and Lawton received some severe shot wounds in the neck. The jury found that the prisoner did not aim at Lawton, or at any one in particular, but that he fired into the group, intending generally to do grievous bodily harm, and so unlawfully wounded. Upon a case reserved it was held that he was rightly convicted of the felony.(hh)

Upon an indictment for administering poison with intent to murder, it appeared that the prisoner had administered to a child nine weeks old two cocculus indicus berries. The child vomited one of them up, and the other passed through her body in the course of nature. Two medical men proved that the cocculus indicus berry is classed with narcotic poisons: the poison consists in the presence of an alkaloid, which is extracted from the kernel; all the noxious properties are in the kernel; it has a very hard exterior or pod, to break which much force is required. One of these witnesses added that the berry, if the pod is broken, is calculated to produce death in an adult human subject, though he did not know how many would be required for the purpose: he thought the poison contained in the kernels of two berries, if the pods were burst, and if retained on the stomach, might produce death in a child of nine weeks old, but that the berry could not be digested by the child, and that it would pass through its body without the pod being burst, and so would be innocuous. It was objected that the berries were not poison within the meaning of the statute; for that though the kernel of the berries contained poison, yet the pod rendered the poison innocuous. The objection was overruled, and, upon a case reserved, the Judges were unanimously of opinion that the conviction was right. Wilde, C. J.: "It is admitted that the kernel is poison, though not the pod; part of the berry is therefore admitted to be poison, though not the whole. The whole berry was administered, and with intent to kill. The act, therefore, of administerby false pretences was bad on error, on the ground that it did not state that the goods obtained were the property of any person. In all cases of doubt as to the intention, it would be prudent to insert one count for shooting at A. with intent to murder him; another "with intent to commit murder; and a third for shooting at A. with intent to murder the person really intended to be killed; and if the party intended to be killed were unknown, a count for shooting at A. with intent to murder a person to the jurors unknown. C. S. G.

(h) Reg. v. Lallament, 6 Cox C. C. 204. It is clear that after the amendment the jury might have been discharged under the 14 & 15 Vict. c. 100, s. 1, and the Court might then have given the prisoner leave to withdraw his plea and demur to the amended indictment. This case as to the general allegation being insufficient on demurrer, accords with my former note (g). I still venture to submit that it is extremely questionable whether the indictment would not be equally bad after verdict, and I doubt whether any case can occur where an indictment may not be so framed as to meet the facts, and avoid the necessity for such a count; for wherever it is possible to prove an intent to murder any person, it is plain a count may be framed to meet that case.

(hh) Reg. v. Fretwell, L. & C. 443.

ing poison with intent to kill is proved. The effect of that act is beside the question: the act was an administering poison, which failed to produce the intended effect. We all think the conviction right."(i)

"It is a very important question, whether on a count charging an intent to murder, it is essential that the jury should be satisfied that that intent existed in the mind of the prisoner at the time of the offence, or whether it is sufficient that it would have been a case of murder had death ensued ;"(k) and this question does [*1005 not seem to be completely settled. In a case where a man was indicted for inflicting an injury dangerous to life on a child, with intent to murder it, and his wife as principal in the second degree, for aiding and abetting him, where it appeared that the prisoners had inflicted great violence on the child, Patteson, J., told the jury, "Before you can find the prisoner, T. C, guilty of this felony, you must be satisfied that when he inflicted this violence on the child, he had in his mind a positive intention of murdering that child. Even if he did it under circumstances which would have amounted to murder if death had ensued, that will not be sufficient, unless he actually intended to commit murder. With respect to the wife, it is essential not only that she should have assisted her husband in the commission of the offence, but also that she should have known that it was her husband's intention to commit murder."(1) But in another case, where the first count charged the prisoner with shooting with intent to murder, and the facts were such as only to amount to manslaughter, the same very learned Judge said, in summing up, "It is a very important question, whether, on a count charging an intent to murder, it is essential that the jury should be satisfied that that intent existed in the mind of the prisoner at the time of the offence, or whether it is sufficient that it would have been a case of murder if death had ensued; however, if it be necessary that the jury should be satisfied of the intent, I have no doubt that the circumstance, that it would have been a case of murder if death had ensued, would be of itself a good ground from which the jury might infer the intent, as every one must be taken to intend the necessary consequences of his own acts. In the present case, I think you may dismiss the first count from your consideration, as it would be very difficult to say, that if Mr. V. had died, this would have been a case of murder." (m)

Upon an indictment for feloniously wounding with intent to murder, disable, &c., it appeared that the prisoner, being confined in Abingdon Gaol, pretended that he wanted some water, and, as soon as the turnkey brought him the water, the prisoner knocked him down by a blow on the head with a towel-roller, and thereby wounding him. He did this in order to effect his escape. In summing up, Maule, J., said: "If the prisoner had killed this man it would have been murder, whether he intended to kill him or not; but I think that there is hardly evidence here to support the charge of an intent to murder. A person caunot have an intent to murder, or an intent to do any other thing, without intending to commit murder, or to do that other thing. It would be a contradiction in terms if it were otherwise. You will, therefore, consider whether the prisoner had an intent to kill this man, or only an intent to disable him, or to do him some grievous bodily harm."(n)

So where upon an indictment for attempting to suffocate and strangle with intent to murder, it appeared that the prisoner had put a bed over his wife, and pressed it down upon her, *and put a rope round her neck with a running noose [*1006 on it, by which she was nearly prevented from breathing; Maule, J., told the jury, that in many cases a party might be guilty of murder if he caused the

(i) Reg. v. Cluderoy, 1 Den. C. C. 514. In the course of the argument, Alderson, B., said, "Suppose arsenic given in a globule of glass, would that be an administering of a destructive poison ?" Williams, J.: " Suppose a child to have a feeble digestion by reason of tender age, and the medical man to say that it could not digest the pod for that reason, could the amount of the digestive power in the particular case affect the question?" Alderson, B.: "Suppose a grown man could digest it, would it be poison? If so, would it cease to be poison because a child is supposed to be incapable of doing so?"

(k) Verba Patteson, J., Reg. v. Jones, 9 C. & P. 258 (38 E. C. L. R.).

(1) Reg. v. Cruse, 8 C. & P. 541 (34 E. C. L. R.).

(m) Reg. v. Jones, 9 C. & P. 258 (38 E. C. L. R.), Patteson, J.

(n) Reg. v. Bourdon, 2 C. & K. 366 (61 E. C. L. R.).

death by an illegal act, although at the time he did not actually intend to kill, and that in this case the prisoner would have been guilty of murder if his wife had died; but upon this indictment the jury must be satisfied that at the time the prisoner did the acts in question, he did intend to murder his wife.(0) And in a later case, Coleridge, J., told the jury that the words "with intent to commit murder," meant to kill under such circumstances as would amount to the crime of murder, if death ensued.(p)

Upon an indictment for wounding with intent to murder, &c., it appeared that the prosecutor had given evidence against some wood-stealers, with whom the prisoner was intimate; the prisoner struck him with a tin can four times on the head, knocked him about, and said he would break his neck; and there were two cuts on the prosecutor's scalp which laid his skull bare. Alderson, B., in summing up, said: 66 You will have to consider in this case whether, if death had ensued, the prisoner would have been guilty of murder; and in giving your judgment on that question, you will have to consider, whether the instrument employed was, in its ordinary use, likely to cause death; or though an instrument unlikely, under ordinary circumstances, to cause death, whether it was used in such an extraordinary manner as to make it likely to cause death, either by continued blows or otherwise. A tin can, in its ordinary use, was not likely to cause death or grievous bodily harm; but, if the prisoner struck the prosecutor repeated blows on the head with it, you will say whether he did this merely to hurt the prosecutor and give him pain, as by giving him a black eye or a bloody nose, or whether he did it to do him some substantial grievous bodily harm. The former enactments on this subject were confined to cutting instruments, and perhaps wisely: but now the matter is much more vague, and cases ought therefore to be watched carefully. When a deadly weapon, such as a knife, a sword, or gun, is used, the intent of the party is manifest; but with an instrument like the present, you must consider whether the mode in which it was used satisfactorily shows that the prisoner intended to inflict some serious or grievous bodily harm with it."(q)

Upon an indictment for administering opium with intent to commit murder, it appeared that the prosecutrix had been left in charge of her master's house, and going out into the yard at night the prisoners threw her down, and said they would kill her if she did not swallow some stuff out of a phial which they held to her mouth, and which stuff the evidence tended to prove was a preparation of opium. She struggled, but was compelled to swallow it; they then tied her apron tight over her face, and then left her lying on her back in the yard. She was afterwards found almost insensible and very ill: by proper treatment she recovered in a few days; but there was reason to conclude, that *had she remained much longer undis*1007] covered, her life would have been in very great peril. When her master returned he found the house robbed. For the prosecution it was contended, that if the main object of the prisoners was to steal from the house, and in order to effect that they committed an act in itself unlawful, they must be taken to have intended all the consequences likely to result from such act, and death was one of those consequences: it was immaterial which was the principal and which the subordinate intent. Coltman, J., told the jury that "it would undoubtedly appear probable that one intention of the prisoners was to rob the house; but they might have had that intention and also another, namely, to destroy life; and if a noxious drug is administered, which is likely to occasion death, and the party administering it is indifferent whether it occasion death or not, that party must be looked upon as comtemplating the probable results of his own action."(r)

Firing a gun into a room of A. B.'s house, with intent to shoot A. B., whom the prisoner supposes to be in the room, did not support a charge of shooting at A. B. under the 9 Geo. 4, c. 31, s. 12, if A. B. were not shown to be in the room or within reach of the shot. Upon an indictment for maliciously shooting at G. C.,

(0) Reg. v. Caldecott, Hereford Sum. Ass. 1843, MSS. C. S. G. (p) Reg. v. Davies, Gloucester Spr. Ass. 1844, MSS.

(9) Rex v. Howlett, 7 C. & P. 274 (32 E. C. L. R.).

C. S. G.

(r) Reg. v. Dilworth, 2 M. & Rob. 531. This case would fall within the 24 & 25 Vict. c. 100, s. 22, post, p. 1015.

it appeared that the prisoner fired into a room of C.'s house where he supposed C. was; C., however, was in another part of the house, where he could not by possibility be reached by the shot: upon this Gurney, B., asked whether the indictment could be supported? A man could scarcely be said to be shot at, who was not near the place where the gun was fired. Rex v. Bailey(s) was cited for the prosecution, where on an indictment for shooting at H. T., who was wounded with grapeshot out of a gun fired at a ship in which he was, Lord Eldon told the jury that he was of opinion, that if they thought the guns were fired at the vessel, and those on board her generally, that the guns might be considered as shot at each individual on board her, and therefore at H. T., the person named in the indictment: Gurney, B., "That case is perfectly distinguishable from the present; cannon-shot fired into a ship more or less endangers every individual in it; every part of the ship may be penetrated by cannon-shot; but that cannot be said of shot fired from a gun into a room where it is proved no individual then was "(t)

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Where on an indictment for shooting at the prosecutor with intent to maim, &c., it appeared that the prisoner had at various times been annoyed by night by idle persons attempting to frighten him, and the prosecutor, returning home by night, passed near the prisoner's house with a lantern; the prisoner seeing the light, thought that his nightly visitors had again appeared, reached his gun, and fired in the direction of the light, and wounded the prosecutor in the face: Patteson, J, thought that the facts would hardly bear out the charge in the indictment. (u) *The prisoner was indicted for maliciously throwing upon P. C. "cer[*1008 tain destructive matter (to wit) one quart of boiling water," with intent, &c. The prisoner was the wife of P. C., and when he was asleep, she, under the influence of jealousy, boiled a quart of water in a coffee-pot, and poured it over his face and into one of his ears, and ran off boasting she had boiled him in his sleep. The injury was very grievous. The man was for a time deprived of his sight, and had frequently lost for a time the hearing of one ear. The jury having convicted, upon a case reserved on the question whether boiling water was destructive matter within the 1 Vict. c. 85, s. 5, the Judges held that the conviction was right.(v)

Upon an indictment on the 1 Vict. c. 85, s. 2, for causing a bodily injury dangerous to life, it appeared that the prisoner left her infant on a cold wet day lying in an open field, intending that it should die, and it was found there after some hours nearly dead from the effects of such exposure, there being congestion of the lungs and heart caused thereby, which would have been in a short time fatal if relief had not been given. At the time when the prisoner left the child she had not caused any bodily injury to it, and in a few hours after it was found it was restored by care, and then there remained no bodily injury to the lungs, heart, or otherwise; and, upon a case reserved, it was held that there was no bodily injury caused within the meaning of the clause. All that was produced was a mere functional derangement. Congestion is the mere filling the lungs and heart with more blood than there ought to be there. All the other offences created by the clause are cases of bodily injury to the structure of the body, but here the condition of the child's organs was not attended with any lesion.(w)

On an indictment for causing a bodily injury dangerous to life, by casting the prosecutrix out of a window upon the ground, she stated that she fell out of the window accidentally; that the prisoner beat her with his fists, and was about to inflict other injuries upon her, when she went to the window to call for assistance, and fell out of it on to the ground. In opening the case, it was stated that the evidence would be conflicting, whether the prosecutrix was thrown or jumped out of the window, but that it would be immaterial, for if the prisoner, by his violence, compelled her to throw herself out, he would be guilty. Alderson, B.: "I do not think it will be sufficient to prove that she jumped from the window to escape from

(t) Rex v. Lovell, 2 M. & Rob. 39.

(8) R. & R. C. C. R. 1. (u) Reg. v. Porter, 5 Cox C. C. 148. The prisoner was convicted of an assault. A question was raised in Reg. v. Turner, 2 M. & R. 213, whether the facts showed an intent to maim the prosecutor; but Patteson, J., expressed no opinion on it.

(v) Reg. v. Crawford,

Den. C. C. 100.

(w) Reg. v. Gray, D. & B. C. C. 303.

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