The like, charging an aider

That C. D. late of, &c. [as in the last indictment to the end, and then as follows.] And the jurors, &c. do further say, that with abet-S. W. late of, &c. and G.. W. late of, &c. at the time of the doing, ting. (1) *and committing of the felony and manslaughter aforesaid, feloniously were present, abetting, aiding, assisting, comforting, and maintaining the said C. D., to kill and slay the said A. B, in manner aforesaid, against the peace, &c.

[*783]

Against the driver of a cart

INDICTMENTS FOR MANSLAUGHTER.

[As ante 750 tot omitting the terms, "malice aforethought."] in the king's highway, there, in and upon one E. F. for man- feloniously, and wilfully, did make an assault, and a certain cart slaughter. of the value of five pounds, then and there drawn by two horses, (v) of the value of ten pounds, which he the said A. B. was then and there driving in and along the said highway, in and against the said E. F. feloniously did force and drive, and him the said E. F. did thereby, then and there, throw to, and upon the ground, and did then and there, feloniously, force and drive one of the wheels, to wit, the off wheel of the said cart, against, upon, and over the head of him the said E. F., then lying upon the ground, and thereby did then and there give to the said E. F. in and upon his head, one mortal fracture and contusion, of which the said E F. then and there instantly died. And so, the jurors, &c. do say, that the said A. B. him the said E.

F.,

in manner

(x) From Imp. Off. Cor. 486. As the statute takes away clergy only from the party actually stabbing, the principal in second degree where the offence would be manslaughter had death occurred by other means, is guilty of manslaughter only. In that case, if it were proved in evidence that the blow was given by the party charged as an abettor, both could only be found guilty of simple manslaugh

ter.

(v) See similar precedent, Starkie, 381. The nature of manslaugh.

ter will be found sufficiently stated in the description of murder, when the alleviations of that offence were considered, see ante 738.* It may be described exactly like murder, except in the omission of the words "murder," and "malice afore. thought." Like murder it was origi nally clergyable, and has never been excluded from the benefit of clergy by any statute, except in case of stabbing already noticed. Its punishment is therefore the same with other clergyable felonies. See 4 Bla. Com. 190 to 193.

and by the means aforesaid, feloniously did kill and slay, against

Mayhem, at common law, is the violently depriving another The of of the use of such of his members as may render him less able fence. in fighting, either to attack his advers ry or to defend himself. Hawk. b. 1. c. 55. s. 1. The mere disfiguring, therefore, of the party injured, in such a way as not to affect his strength or power of fighting, such as the cutting off the ear, slitting the nose, &c. do not come within this definition. Hawk. b. 1. c. 55. s. 2. But the cutting off a limb, or disabling or weakening the hand or finger, or striking out an eye or front tooth, or castrating, which is supposed to debilitate and render unwarlike, were always regarded as mayhems, 4 Bla. Com. 205. To bring any wound within this denomination, it is said it must be done maliciously, though it matters not how sudden the occasion. 1 East, P. C. 393. All malicious maiming is said at common law to be felony, though none was ever capital except castration. Hawk. b. 1. c. 55. s. S. The last offence seems indeed to have been regarded as highly criminal, on whatever provocation it was committed. 3 Inst. 118. 4 Bla. Com. 206. The ancient law as to Mayhems, perhaps with this exception, adjudged the offender to suffer the same injury with that which he had inflicted on the principle of the lex talionis of Moses. 3 Inst. 118. But this practice has been long exploded; and nothing but fine and imprisonment is left by the common law as a penalty for an offence so barbarous --We pass on therefore to consider

(w) As to this offence in general see Hawk. b. 1. c. 55. 3 Inst. 118. Com. Dig. Justices, S. 6. 4 Bla. Com. 205 to 208. 1 East, P. C. 392 to 403.

(x) See precedent Rast. Ent. 487. West, 336. and against the principal and abettors in the same indictment. Trem. P. C. 33.

The of fence.

II. MAIMING ON STATUTES.

The first statute on this subject is the 5. Hen. IV. c. 5. and relates to the cutting out of tongue and eyes, which was some[*785] times done to prevent parties otherwise injured from giving evidence against those who had ill used them. It provides that "in such case the offenders that so cut out tongues, or put out the eyes of any, and if it be duly proved and found that such deed was done of malice prepense, shall incur the pain of felony." The 37. Hen. VIII. c. 6. enacts, that whoever shall maliciously, unlawfully, and wittingly cut or cause to be cut off the ears of any one of the king's subjects, otherwise than by authority of law, chance, medly, sudden affray or adventure, shall forfeit treble damages to the party grieved by action of trespass, and ten pounds to the king as a fine. But the most important and extensive ancient statute on this subject is the 22 and 23 Car. II. c. 1. commonly called the Coventry Act, from the circumstances to which it owes its origin. For it was passed in consequence of some armed men having lain in wait for Sir John Coventry, a man of rank and consequence of the time, and having slit his nose, and so wounded him that he was not only disfigured, but his life brought into great danger. 1 Leach, 261. After reciting this transaction the statute proceeds to enact, "That if any person shall, on purpose, and of malice aforethought, and by laying in wait, unlawfully cut out or disable the tongue, put out an eye, slit the nose, cut off a nose or lip, or cut off or disable any limb or member of any subject of his majesty, with intention in so doing to maim or difigure in any of the manners above mentioned, such his majesty's subject, that then the person so offending his counsellors, aiders, and abettors, (knowing of, and privy to the offence aforesaid) shall be guilty of felony without benefit of clergy." To constitute the offence against which this provision was directed, there must be a maiming—a lying in wait-and an intent to disfigure.

I. There must be a maiming, and for this purpose a wound in the throat cr on the neck will not suffice to bring the offender within the statute, 1 Leach, 51. But to constitute a slitting the nose, it is not necessary that the nostrils should be perforated,

for a wound across the upper part of the nose on a level with the eyes, if it cuts the flesh, and divides the frontal vessels of the forehead, will fix the party by whom it was given, with the guilt of a capital felony, 1 Leach, 55. 6 Harg. St. Tr. 223.

II. There must a lying in wait. But it is not necessary that the prisoner should lurk in any particular place, and effect the mischief by suddenly rushing from it. It will suffice if, having formed an intention to maim, he takes a convenient opportunity of effecting his purpose, I Leach, 259. And, therefore, where the party injured was surrounded by a gang of thieves, and, in the scuffle, some of the party asked the rest where their knives *were, on which the defendant struck at and maimed him, [*786] it was left to the jury to determine whether he had deliberate intention to wound, and they found him guilty, 1 Leach, 259. So where the prisoner was in concert with pickpockets, to cut or stab those who should oppose them, and, in prosecution of this intention, he ran to a person who had apprehended one of his associates, and maimed him with a knife, this was holden to be a lying in wait within the statute, 1 Leach, 57, n. (a) 1 East, P. C. 397, 8. Where, however, the injury arises out of a sudden attack, though the prisoner is engaged in an unlawful purpose, the offence will not be capital. This was held where the defendant was stealing turnips, and on being accosted by a servant of the owner, struck him with an instrument of iron and wood, which he had with him, 1 Leach, 187. And where the commander of a press-gang wounded a person in the attempt to impress him, who resisted, not being liable to be taken, though antecedent malice was proved, it was held that a sufficient lying in wait had not been shown. 1 East, P. C. 399. These cases, show the different construction put on the common and statute law, for, in any of these cases, had death ensued, malice would have been implied, and the parties convicted of murder. See

ante 727.*

But if the design

III. There must be an intent to disfigure. was to murder by maiming, and the party, though wounded, recovers this deeper guilt will be no excuse, for the primary intent to maim will not be merged in the ultimate design to kill, 6 Harg. St.Tr. 211. And the question of intent is matter of fact for the consideration of the jury, and not a point of law for

Indictment.

the decision of the judge, id. ibid. It is not necessary that the intention to maim should be directed against any particular individual; for if it be general against any person who may resist an unlawful purpose, the offender will be liable, though the party injured be a stranger, 1 Leach, 55. 1 East, P. C. 396.-But most of the nice constructions which have been put on the statute of Charles are now become unimportant, for the 43 Geo. III. c. 58. enacts, "that any person stabbing or cutting another with intent to murder, rob, maim, disfigure, or disable him, or to do him some other bodily harm, or to oppose his own apprehension, or the lawful taking of an accomplice, shall be guilty of felony without benefit of clergy." See post 788.* &c. where this act is recited at large.

Indictment.-Every indictment for maiming, though at common law, must charge the offence to have been done feloniously, because though the defendant was formerly punished with loss of member, Hawk. b. 2. c. 23. s. 18. The term maheimavit was always essential formerly, as the word maim is at present, id. s. [*787] 17. *The wound should be set forth with the same degree of precision as in cases of murder, id. s. 79. and a aimilar conclusion must be drawn, that so the defendant did feloniously maim, &c. though this will not supply the omission of either of these words in the previous description of the violence, 1 East, P. C. 402. In case of indictment on the statute of Charles, its language must be accurately followed; so that the expressions on purpose, of malice aforethought, and by lying in wait, as well as the allegation that the act was done with intent to maim and disfigure, are material, id. ibid. As to the proceedings by appeal, the defence, and the mode of trial when that course is taken, Sec Hawk. b. 2. c. 23. s. 15 to 27. and 1 East, P. C. 402, 3. but the subject is not of sufficient practical importance at the present day, to require further discussion here.

Indict

INDICTMENT FOR SLITTING NOSE ON COVENTRY

ACT.

That J. W. late of, &c. labourer, and A. C. late of, &c. ment on esquire, on, &c. contriving and intending one E. C. then and yet

Coventry