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servitude for life, or not less than five years; or to be imprisoned, with or without hard labour, for any term not exceeding two years (9). And, moreover, whosoever by any unlawful act, or wilful omission or neglect, shall endanger or cause to be endangered, or shall aid or assist in endangering or in causing to be endangered, the safety of any person conveyed by or being on a railway, shall be guilty of a misdemeanor, and punishable by imprisonment, with or without hard labour, to the extent of two years (r).
XII. Setting spring-guns or engines to destroy or injure trespassers.—It is enacted by 24 & 25 Vict. c. 100, that whosoever shall set or place, or cause to be set or placed, any spring-gun, man-trap, or other engine calculated to destroy human life, or inflict grievous bodily harm, with the intent to destroy such life or inflict such harm, upon a trespasser or other person coming in contact therewith, shall be guilty of a misdemeanor, and be punishable with penal servitude for five years, or imprisonment, with or without hard labour, to the extent of two years (s).
There is, however, a proviso, that the said enactment shall not extend to gins or traps such as are usually set with the intent of destroying vermin; or to spring-guns, man-traps, or other engines, set in a dwelling-house for the protection thereof from sunset to sunrise (t).
XIII. The remaining offences which fall under the
(7) 24 & 25 Vict. c. 100, ss. 32, 33; 27 & 28 Vict. c. 47.
(r) 24 & 25 Vict. c. 100, s. 34. See R. v. Bradford, 29 L. J. (N. S.), M. C. 171.
($) Sect. 31; 27 & 28 Vict. c. 47. Prior to 7 & 8 Geo. 4, c. 18, s. 1 (repealed by 24 & 25 Vict. c. 95), a man was not indictable for the mere act of placing such instruments on his premises with intent
to destroy trespassers, at least if he gave sufficient notice to the public that they were so placed. (Elott v. Wilks, 3 B. & Ald. 312, 314.) As to the right of action by a person who sustains injury from an engine of this description, sec Jordan v. Crump, 8 Mee. & W.782; Wootton v. Dawkins, 2 C. B. (N. S.) 412.
(t) 24 & 25 Vict. c. 100, s. 31.
subject of this chapter are, assaults, batteries, and false imprisonment. With regard to the nature of these offences in general, we have nothing further to add to what has been already observed in the preceding book of these Commentaries; when we considered them as civil injuries, for which a satisfaction is given to the party aggrieved. But taken in a public light, as a breach of the peace, a common assault, though not occasioning any actual bodily harm, is a misdemeanor, and is made punishable with imprisonment, with or without hard labour, to the extent of one year (u); while if it has occasioned such harm, it is punishable by penal servitude for five years, or imprisonment to the extent of two years, with or without hard labour (x). But, in some cases, assaults are punished in a much severer manner and degree; that is when they are committed with any atrocious design,-as, for example, in case of an assault with intent to murder, in which case we may remember that penal servitude for life may be awarded (y).
A variety of assaults, which require to be specially dealt with, are provided against by particular enactments (z). Thus, amongst others (for it would be tedious to enumerate all), an assault on a magistrate, or any other person lawfully authorized, in the exercise of his duty in preserving wreck or goods cast on shore, is a misdemeanor punishable with penal servitude to the extent of seven years, or imprisonment to the extent of two years, at the discretion of the court. So, also, to obstruct or assault a
(u) 24 & 25 Vict. c. 100, s. 47. wrongfully forcing a seaman or apBefore this provision, “hard labour" prentice ashore, or leaving him becould not be inflicted for a common hind, &c.: 24 & 25 Vict. c. 100, s. 39, assault.
as to assaults with intent to obstruct (x) Sect. 47; 27 & 28 Vict. c. 47. the sale or free passage of grain: (y) Vide sup. p. 78.
sect. 40, as to assaults on seamen and (z) See also the following provi- others, with intent to prevent them sions:-13 & 14 Vict. c. 101, s. 9, from working at their trades : 34 & as to assaults on workhouse or re- 35 Vict. c. 112, s. 12, as to assaults liering officers: 17 & 18 Vict. c. 104, on constables. 8. 206, as to masters of British ships VOL. IV.
clergyman while in the discharge of the duties of his calling, or to assault any person with intent to commit felony, or to assault any female indecently (a),—are all made punishable by two years' imprisonment, with or without hard labour, though no actual bodily harm may have been occasioned (a).
We may observe, however, that common assaults may be, and continually are, disposed of by the justices of the peace sitting at petty sessions, in the exercise of their summary jurisdiction, and not by way of indictment; and that, when so disposed of, the punishment is of a lighter description, and consists in a fine not exceeding £5, or imprisonment (with or without hard labour) to the extent of two months (1); and, in certain cases, even some species of aggravated assaults may be heard and determined by the justices (c). But, for further information hereon, we must refer the reader to the chapter on Summary Convictions, in a subsequent part of the work.
(a) 24 & 25 Vict. c. 100, s. 52. As to other indecent assaults, vide sup. pp. 92, 93. As to security being sometimes required for the due prosecution of such charge, vide sup. p. 93, n. (9).
(1) Sect. 42.
(c) Sect. 43. In these cases the fine may be as high as £20, and the imprisonment may extend to six months,
OF OFFENCES AGAINST PROPERTY.
The next class of crimes that we propose to consider are such as affect property ; in considering which we shall notice, first, offences against houses; and, next, offences against property in general: and under this last division we shall arrange the different offences under the heads of larceny; malicious mischief; forgery; obtaining property by false personation; and obtaining property by false pretences.
And, first, with respect to offences against houses.
I. Arson, ab ardendo, is the malicious and wilful burning of the house or outhouse of another man. [This is an offence of very great malignity, and much more pernicious to the public than simple theft; because of the terror and confusion which necessarily attend it; and, also, because in simple theft the thing stolen only changes its master, but still remains in esse for the benefit of the public: whereas, by burning, the very substance is absolutely destroyed. It is also frequently more destructive than murder itself, of which, too, it is often the cause: since murder, atrocious as it is, seldom extends beyond the felonious act designed; whereas fire too frequently involves in the common calamity, persons unknown to the incendiary, and not intended to be hurt by him, and
[friends as well as enemies. For which reason the civil law punished with death, such as maliciously set fire to houses in towns and contiguous to others; but was more merciful to such as only fired a cottage or house standing by itself (c).
Our English common law also distinguishes with much accuracy upon this crime; and, therefore, we will inquire, first, what is such a house as may be the subject of this offence; next, wherein the offence itself consists, or what amounts to a burning of such house; and, lastly, how the offence is punished.
Not only the bare dwelling-house, but all outhouses that are parcel thereof,—though not of necessity contiguous thereto, or under the same roof,—as barns and stables, may be the subject of arson (d). The offence may be committed by wilfully setting fire to one's own house, provided one's neighbour's house is thereby also burnt; but if no mischief be done but to one's own, it did not, at common law, amount to felony, though the fire was kindled with intent to burn another's (e). For, by the common law, no intention to commit a felony, amounts to the same crime; though it now does, in some cases, by particular statutes. However, such wilful firing one's house, in a town, was always a high misdemeanor, and punishable by fine, imprisonment, and perpetual sureties for the good behaviour (f); and if a landlord or reversioner set fire to his own house, of which another was in possession under a lease from himself, or from those whose estate he hath, it was accounted arson; for, during the lease, the house is the property of the tenant (9).
As to what shall be said to be a burning so as to amount to arson, a bare intent, or attempt to do it, by actually
(c) Ff. 48, 19, 28, S. 12.
'ar. 377; 1 on. 351
P. C. b. 1, c. 39, s. 3, ubi sup.; 2
(9) Fost. 115.