is a material part of the offence, and should be alleged in the indictment. No actual demand of money is necessary upon the charge of assault with intent to rob.2

(c) Assault with Intent to Kill-Where the prisoner is charged with an assault and battery. with a deadly weapon, with intent to kill, it is sustained by proof of having done the act with intent to commit any felonious homicide; it is not necessary to prove an intent to murder.3 And upon an indictment, charging this offence, the presumptions as to malice are the same as in murder. Thus, where the prisoner was the aggressor, and commenced the attack, and made use of such weapons as were calculated to endanger life, it was held that malice would be inferred, and that the fact that the prisoner was in the heat of passion would not mitigate the offence into a lesser crime.1

An assault and battery with intent to kill is not a felony by our statute or at the common law, unless committed with a deadly weapon, or by such other means or force as are likely to produce death."

A conviction for attempting to discharge a pistol with intent. to kill, cannot be had under the statute where the individual indicted proceeded no farther toward an actual discharge or shooting than to raise and point the pistol, uncocked, at the party threatened; a threat made by the prisoner at the time would constitute no part of the atttempt to discharge the pistol, it would only be evidence of the intention of the prisoner."

Under the English statute, in relation to attempts at murder, which was a repeal of the acts previously known as the Black act and as Lord ELLENBOROUGH's act,' in the section, in relation to shooting at persons, the word "loaded arms" is used; and it was held, in a prosecution for an offence under Lord ELLENBOROUGH'S act, the words of which were substantially the same, that it was not necessary to allege or prove that the gun contained any ball or shot, but that if it was loaded with powder and wadding only,

16 Serg. & Rawle, 398; 1 Russ on Cr., 767. 1 Russ on Cr., 766.

Peo. v. Shaw, 1 Park., 327.

• Peo. v. Vinegar, 2 Park., 24.

or if the prisoner fired it so near the person of the prosecutor' and in such a direction that it would probably kill him, that it would come within that statute.1

(d) Assault with Intent to Ravish.-There are many cases where an attempt to commit a rape must, in the real estimate of guilt, be considered nearly as aggravated an offence as if the crime had been completed; more especially where brutal force and violence is used to effect the criminal purpose.2

To constitute an assault with intent to commit a rape, it is necessary that the facts and circumstances, accompanying the transaction, should be such as to constitute the crime of rape, in case the defendant had succeeded and carried his intention into full effect.3

In order to convict of such an assault, the jury must be satisfied that the prisoner intended to gratify his passions on the person of the prosecutrix at all events, and notwithstanding any resistance on her part. Upon an indictment for an assault with intent to commit a rape, PATTERSON, J., in summing up, said: "In order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events and notwithstanding any resistance on her part."" It was held by the same judge, in the same case, that evidence that the prisoner, on a prior occasion, had taken liberties with the prosecutrix was not admissable to show the prisoner's intent.5

Where, upon an indictment for an assault with intent to commit a rape, the evidence was that the defendant, a medical man, being about to administer an injection to the prosecutrix, desired her to place her head on the bed and her feet on the floor, he then raised her clothes, and administered the injection, and desired her to remain still; but she found then that he was about to have connection with her, and had penetrated her person a little, when she immediately arose and ran down stairs, and he

'Kitchen's Case, Rus. & Ry., 95. Vide Vaughn v. State, 3 Sm. & Marsh, 553. 22 Arch. Cr. Pr., 179.

'3 Engl. Ark. Rep., 400.

1 Russ. on Cr., 693; Rex v. Lloyd, 7 C. & P., 318.

3 Id.

C. P.-32.

quitted the house. COLERIDGE, J., held, that if this had been committed with force the offence of rape would have been committed; but as that was not the case, the defendant could not be convicted of an assault with intent to commit a rape; although what he did was sufficient to convict him in a court for a common assault.'

When the prisoner decoyed a female, under ten years of age, into a building for the purpose of ravishing her, and was there detected while standing within a few feet of her in a state of indecent exposure, held that, though there was no evidence of his having actually touched her, he was properly convicted for an assault with intent to commit a rape.2

The question has arisen, whether a boy under fourteen years could be convicted of assault with intent to commit a rape. In Eldersham's case, above cited, it was held by VAUGHAN, B., that a boy, under the age of fourteen, could not be convicted of an assault with intent to commit a rape. In Rex v. Gravenbridge the same rule was adopted, as it was likewise held by PATTERSON, J., in Phillip's case. The Supreme Court of Massachusetts decided to the reverse; the court saying an intention to do an act does not necessarily imply an ability to do it.3 In this State, upon a review of these cases, it was held that the guilty intent which, under the statute, aggravated a simple assault and battery, and made it punishable as a felony, could not exist where there was a physical incapacity, presumed by law of the person charged, to consummate the offence alleged to have been intended; the intent was simply a thought or desire, which could not, in the nature of things, produce any result; the highest offence of which the party was capable being an assault and battery, as determined by the law itself.4

(e) Assault with Intent to Commit Larceny.-Independent of the general statute above cited, in reference to assaults with intent to commit felonies, the Legislature, in the act of 1862, after declaring larceny from the person to be grand larceny, though the value of the property taken shall be less than twentyfive dollars, enacted the following provision:

1 R. v. Stanton, 1 Car. & K., 415.

Hays v. The Peo., 1 Hill, 351. 'Com. v. Green, 2 Pick., 380. Peo. v. Randolph, 2 Park., 213.

66

'Any person who shall lay hands upon the person of another, or upon the clothing upon the person of another, with intent to steal, under such circumstances as shall not amount to an attempt to commit larceny, shall be deemed guilty of an assault with intent to steal, and shall be punished as is by law provided for the punishment of misdemeanors; and it shall not be necessary to allege or prove, in any prosecution for an offence under the above section of the statute, any article intended to be stolen, or the value thereof, or the name of the person so assaulted."1

(f) Assaults in Resisting the Execution of Legal Process.The obstruction of the execution of lawful process is an offence against public justice of a very high and presumptuous nature, and more particularly so when the obstruction is of an arrest upon criminal process. An assault upon an officer in the execution of the duties of his office, is always punished with severity, as being a direct attack upon government, and a blow aimed at the law itself.3

In pronouncing sentence in a case of this kind, the presiding judge admonished the convict to beware of similar acts hereafter. It was of small consequence in the case that a rescue was not effected, or that the constable was not beaten or injured. The offer to rescue the prisoner, the threat to injure the officer if he did not release his prisoner, and the attempt to raise a mob to accomplish the object, evinced a disregard for the laws which called for exemplary punishment. The judge told the prisoner that every attempt to resist the officers of justice, must be regarded as an attempt to trample down all the institutions relied upon by society for the promotion of happiness, and the preservation of life, liberty and property, and that such attempts could receive no countenance from the court, and that every effort should be made to preserve the supremacy of the laws.*

It will be observed that the statute creates this offence only when the act is committed in the execution of legal process. By legal process, is meant that the process must not be deficient in the frame of it, and must issue in the ordinary course of justice from a court or magistrate having jurisdiction of the case.

'Laws 1862, ch. 374, § 3.

24 Black. Com., 128; 2 Hawk. P. C., ch. 17, § 1; 1 Russ on Cr., 408. 32 Arch. Cr., 290, note.

Com. v. Vance, Lew Cr. L., p. 102.

The falsity of the charge contained in the process, will afford no excuse for assaulting the officer, for every man is bound to submit himself to the course of justice.1

Neither will the fact that there may have been error or irregularity in the proceeding previous to the issuing of the process, be an excuse for an assault upon the officer executing it, for the officer to whom it is directed must, at his peril, pay obedience to it.2

The party should have notice of the officer's business, as where a bailiff rushed into a gentleman's bed-chamber early in the morning, without giving the slightest intimation of his business, and, the gentleman not knowing him, in the impulse of the moment, assaulted him, he was considered not guilty of the offence.3

But where it appeared that the defendant knew the officer, or he notified the defendant, and showed him his process, it was held different.4

(B) Assaults with Dangerous Weapons with Intent to do Bodily Harm.

Any person who, with intent to do bodily harm, and without justifiable or excusable cause, shall commit any assault upon the person of another with any knife, dirk, dagger or other sharp, dangerous weapon, or who, without such justifiable or excusable cause, shall shoot off or discharge at another with intent to injure such other person, any air gun, pistol or other fire arms, although without intent to kill such other person, shall, upon conviction, be punished by imprisonment in a State prison for a term not more than five years, or by imprisonment in the county prison for a term not exceeding one year.5

III. ATTEMPTS TO COMMIT FELONIES.

(a) At the common law an attempt to commit any felony, or even a misdemeanor, was itself a misdemeanor," and all attempts tending to the prejudice of the community were indictable, and,

1 East. P. C., 310.

' 1 Hale, 457; Fost., 311.

⚫ 1 Hale, 470.

Cro. Cas., 183; 1 Hale, 461.

2 R. S., 689, § 24; Laws 1854, ch. 74, § 1.

2 East, R., 8; 6 Id., 464; 1 Russ. on Cr., 47.

R. v. Phillips, 6 East., 464; 4 Burr, 2494; 2 Camp., 229; 2 Ld Raym., 1377; 2 East., 14-16, 22-25; 3 Inst., 147.