and 23 ny, by slit being a subject of our said lord the king, to maim and disfigure Act, 22 (b) at, &c. with force and arms, in and upon the said E. C. in the peace of God and our said lord the king, then and there being, For feloon purpose, (c) and on, (or " of their") malice forethought, (d) and by lying in wait unlawfully and feloniously (e) did make an nose, and ting a assault, and the said J. W. with a certain iron bill of the value of the aider against one penny, which he the said J. W. in his right hand then and and abetthere had and held (ƒ) the nose of the said E. C. on purpose, and tor. (a) of his malice forethought, and by lying in wait, then and there unlawfully and feloniously did slit, with intention, the said E. C. in so doing, in manner aforesaid, to maim and disfigure, (g) and that the *aforesaid A. C. at the time the aforesaid felony by the [*788] said J. W. in manner and form aforesaid, was done and committed, to wit, on the said, &c. at, &c. with force and arms, on purpose, and of his malice forethought, and by lying in wait unlawfully, and feloniously was present, (knowing of and privy to the said felony) (h) aiding and abetting the said J. W. in the felony aforesaid, in manner and form aforesaid done and committed. And so the jurors, &c. do say (i) that the said J. W. and A. C. on the said, &c at, &c. aforesaid, with force and arms, on purpose, and of their malice forethought, and by lying in wait, the felony aforesaid, in form aforesaid, unlawfully and feloniously did do and commit, and each of them did do and commit against the peace, &c. and against the form, &c. On 43 58. s. 1. INDICTMENT FOR MALICIOUSLY CUTTING, ON 43 GEO. III. C. 38. That C. H. late of, &c. on, &c. with force and arms, at, &c. in Geo. III. c. and upon one C. R. a subject of our said lord the king, then and *there being, feloniously, wilfully, maliciously, and unlawfully did for maliciously make an assault, and with a certain sharp instrument, then and cutting there feloniously, wilfully, maliciously, and unlawfully did strike the prosecutor. (k) and cut the said C. R. in and upon the right arm of her the said [*789] C. R. with intent in so doing wilfully, and of his malice aforethought, to kill and murder her the said C. R. to the great damage of the said C. R. against the form, &c. and against the peace, &c. [Second Count same as the first, only instead of stating the intent to murder, aver it to be " to disable her the said C. R." and conclude as before. Third count similar to the first, only stating the intent to be" to do some grievous bodily harm to the said C. R."] Second count. Third count. (k) See other precedents, Cro. C. C. 266. and the precedents and notes relative to obstruction of public justice, ante 154,* 157.* The 43 Geo H. c. 58. s. 1. enacts, that if any person or persons shall, either in England or Ireland, wilfully, maliciously, an unlawfully shoot at any of his majesty's subjects; or shall wilfully, maliciously, and unlawfully present, point, or level any kind of loaded fire arms at any of his majesty's subjects, and attempt by drawing a trigger, or in any other manner, to discharge the same at or against his or their person or persons, shall wilfully, maliciously, and unlawfully stab or cut any of his majesty's subjects, with intent in so doing, or by means thereof, to murder or rob, or to maim, disfigure, or disable such his majesty's subject or subjects, or with intent to do some other grievous bodily harm to such his majesty's subject or subjects, or with intent to obstruct, resist, or prevent the lawful apprehension and detainer of the person or persons so stabbing or cutting, or the lawful apprehension and detainer of any of his, her, or their accomplices, for any offences for which he, she, or they may respectively be liable by law to be apprehended, imprisoned, or detained,—or shall wilfully, maliciously, and unlawfully, administer to, or cause to be administered to or taken by any of his majesty's subjects, any deadly poison, or other noxious and destructive substance or thing, with inteat such his majesty's subject or sub. jects thereby to murder, or thereby to cause and procure the miscarriage of any woman then being quick with child (†) or shall wif fully, maliciously, and unlawfully set fire to any house, barn, granary, hop oast, malt house, stable, coach house, outhouse, mill, warehouse, or shop, whether such house, barn, &c. shall then be in the possession of the person or persons so setting fire to the same, or in the possession of any other person or persons, or of any bo dy corporate, with intent thereby to injure or defraud his majesty or any of his majesty's subjects, or any body corporate, that then and in every such case the person or persons so offending, their counsellors, aiders, and abettors, knowing of and privy to such offence, shall be and are de See provisions post in cases where the woman was not quick with child. der 43 That J. M. late of, &c. H. M. late of, &c. T. M. late of, &c. on, For maliciously &c. with force and arms, at, &c. with a certain pistol loaded with shooting gunpowder and divers, to wit, six leaden slugs, feloniously, at and cut. wilfully, maliciously and unlawfully, did shoot at one J. M., then ting, unand there being a subject of our said lord the king, and in the Geo. III. peace of God and our said lord the king then and there being, c. 58. s. 1. (i), and with divers sharp and offensive weapons, to wit, with a certain sword, and with a certain hedging hook, him the said J M. then and there being such subject as aforesaid, they the said J. M. H. M. and T. M. then and there feloniously, wilfully, maliciously and unlawfully, did cut with intent in so doing, that is to say, in so shooting at and cutting the said J. M., and by means thereof, feloniously, wilfully and of their malice aforethought to murder him the said J. M., then and there being such subject as aforesaid, against the form, &c. and against the *peace, &c. And the jurors, &c. that the said J. M., &c. on, &c. Second with force and arms, at, &c. with a certain pistol loaded with gunpowder, and divers, to wit, six leaden slugs, feloniously, [*790] wilfully, maliciously and unlawfully, did shoot at the said J. M., then and there being such subject as aforesaid, &c. [as in the first count.] with intent in so doing, that is to say, in so shooting at and cutting the said J. M., and by means thereof to maim and disable him the said J. M., then and there being such subject as aforesaid, against the form of the statute, &c. and against the peace, &c. The like with intent in so doing, to wit, in so Third shooting at and cutting the said J. M., and by means thereof to count. do some grievous bodily harm to him the said J. M., then and there being such subject as aforesaid, against the form, &c. And the jurors, &c. that the said J. M. H. M. and T. M., on Fourth the said eighteenth day of April, in the fifty-second year afore- count. said, with force and arms, at, &c. with a certain pistol loaded clared felons, without benefit of clergy-But it is provided that in the case of shooting or stabbing, if under the circumstances, had the party been killed, it would not have been murder at common law, the defendants shall be acquitted. Under this act, a striking over the face with the sharp end of a hammer, is held a sufficient cutting, though, had the blunt end been employed, the defendant would have been guilty of a misdemeanour only. 4 Bla. Com. 208. Christ. ed. in notes. On the clause (i) See a form in 2 Starkie, 558. count. Fifth count. Sixth count. count. with gunpowder, and divers, to wit, six leaden slugs, feloniously, wilfully, maliciously and unlawfully, did shoot at the said J. M., then and there being such subject as aforesaid, and in the peace, &c. then and there being, with intent in so doing, and by means thereof then and there feloniously, wilfully, and of their malice aforethought to murder him the said J. M., then and there being such subject as aforesaid, against the form of the statute, &c. and against the peace, &c. The like with intent in so doing, and by means thereof, to maim and disable him the said J. M. then and there being such subject as aforesaid, against the form, &c. The like with intent in so doing and by means thereof, to do some grievous bodily harm to him the said J. M., then and Seventh there being such subject as aforesaid, against the form, &c. And the jurors, &c. that the said J. M. H. M. and T. M., on, &c. with force and arms, at, &c. with divers sharp and offensive weapons, to wit, with a certain sword, and a certain hedging-hook, feloniously, wilfully, maliciously and unlawfully, did cut the said J. M. then and there being, such subject as aforesaid, and in the peace, &c then and there being with intent in so doing, and by means thereof then and there feloniously, wilfully and of their malice aforethought, to murder him the said J. M., then and there being such subject as aforesaid, against the form, &c. The like with intent in so doing, and by means thereof, to maim and disable him the said J. M., then and there being such subject as aforesaid, against the form, &c. The like, with intent in so doing, and by means thereof, to do some grievous bodily harm to him the said J. M., then and there being such subject as aforesaid, against the form, &c. And the jurors, &c. that the said J. M., &c. afterwards, to wit, on, &c. with force and arms, at, &c. with a certain pistol loaded with gunpowder, and divers, to wit, six leaden slugs, feloniously, wilfully, maliciously and unlawfully, and knowingly did shoot at the said J. M., the said J. M. then and there being in his own dwelling house, situate and being at, &c. against the form of the statute, Eleventh &c and against the peace, &c. And the jurors, &c. that the said J. M., &c. afterwards, to wit, on, &c. with force and arms, at, &c. with a certain pistol loaded with gunpowder, and divers, to wit, six leaden slugs, feloniously, wilfully, maliciously and unlawfully, did shoot at the said J. M., against the form, &c. Eighth count. Ninth count. Tenth count. [*791] count. For shooting at the That J. S. late of, &c. W. G. late of, &c. and J. L. late of, &c. prosecu- being evil designing and disorderly persons, and of wicked and tor in a *malicious minds and dispositions, and not regarding the laws and [*792] viz. statutes of this realm, nor fearing the pains and penalties there- dwelling in contained after the first day of June, in the year of our Lord house, seventeen hundred and twenty-three, to wit, on, &c. with force against and arms, at, &c. in and upon one J. P. esquire, in the peace of the person who shot, God and our said lord the king, in a certain dwelling house there and two situate, then and there being, unlawfully, wilfully, maliciously, others for aiding and and feloniously, did make an assault, and that the said J. S. abetting, with force and arms, at, &c. aforesaid, with a certain gun which &c. on 9 Geo. I. c. he the said J. S. in both his hands then and there had and held, 22. (k) and which said gun was then and there loaded with gunpowder (4) This indictment is taken from Cro. C. A. 20. See the indictment in Latin against Arnold, the year after the act was passed, for shooting at Lord Onslow, 8 Harg. St. Tr. 289. The indictment in the Coal-heaver's case, stating that all shot jointly, which was held good, 1 Leach, 64. And see other precedents, Cro. C. A. 474. Cro. C. C. 84, 267. Strakie 400, 1. Offence. Among the provisions of 9 Geo. I. c. 22. it is enacted, that if any person shall wilfully and maliciously shoot at any person in any dwelling house or other place, he shall be guilty of felony without benefit of clergy. And any one who shall forcibly rescue another lawfully in the custody of any officer or other person, for any of the offences there enumerated, or shall by gift or promise of money or other reward, procure any of his majesty's subjects to join him in any of them, is made guilty in the same degree. To bring an offender within this provision, it is not necessary that he should be disguised, &c. for the words relating to deer stealers, in the former part of the section," persons armed, &c. and having their faces blacked or otherwise disguised," have no reference to the subsequent clauses. 8 Harg. St. Tr. 313. But to make a shooting capital within this act, there must be such a malice either express or implied, as in case the party had been killed, would have constituted murder; and no shooting by accident, or self defence, or in such passion as would reduce the killing to manslaughter, will render a party thus highly criminal, 1 Leach, 417. First count stating an And though it is not necessary that asault by any evil consequences should ensue, all the yet the shooting must be with a gun parties, so loaded as to be dangerous, and it that J. S. must be levelled at the party whom shot, and it was intended to injure. So that two others if the firing take place in the dark, aided, &c. although it was designed to reach an in a dwelindividual, if directed to a quarter ling different from that in which he was house. at the time, the prisoner must be acquitted. 1 East P. C. 413. All present, aiding and abetting a malicious shooting, which comes within the act are principals. And they may all be indicted for shooting, though some of them had no fire arms, and will be convicted, though the party who actually shot, is uncertain. 1 Leach, 64; for it is said that as the act creates a new felony, and does not take away clergy from any offence in which it was formerly allowed, the crime must necessarily possess all the incidents of felony at common law; but this doctrine is ably questioned by Mr. Justice Foster. Fost. 416 to 430. It has, however, been since confirmed by two express decisions. 1 Leach 359. 1 East P. C. 414 3 T. R. 105. And though the offence be laid jointly, it is joint and several in its nature, and therefore, some of the defendants may be acquitted and others found guilty id. ibid. Indictment. The indictment must pursue the words of the statute and charge the offence to have been wilfully and maliciously," as well as feloniously committed; for where it was charged to have been done "unlawfully, maliciously, and feloni |