Criminal Law Amendment Act of 1883 No 9a (NSW)
No. XVII .
An Act to consolidate and amend in certain
respects the Criminal Law. [26th April, 1883.]
| BE | it enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and Legislative |
Assembly of New South Wales in Parliament assembled and by the authority of the same as follows :—
1. This Act (which may bo cited as the " Criminal Law Amendment Act of 1883") shall commence on the first day of July one thousand eight hundred and eighty-three on which day the Acts and portions of Acts mentioned in the First Schedule hereto shall to the extent of the repeal thereby indicated be repealed except as to offences committed and things done or commenced before that day which shall be dealt with and continued and every right and liability in respect thereof shall remain as if this Act had not been passed.
(a.) The words Court and Judge respectively shall be equally taken to mean the Court in which or the Judge before whom the trial or proceeding is had in respect of which either word is used The term Indictment shall include any information presented or filed as now provided by law for the prosecution of offences And the word Justice or Justices shall be con strued to mean a Justice or Justices of the Peace. (b.)
2. The Eighth and following Parts of this Act so far as their provisions can be applied shall be in force with respect to all offences whether at common law or by statute whensoever committed and in whatsoever Court tried.
INTERPRETATION AND GENERAL CLAUSES
3. For the purposes of this Act the words in this section printed in italics shall have the meanings or be taken to include the terms or things or persons hereinafter in that behalf mentioned—that is to say:—
(b.) The word money shall include all coined money whether current within the Colony or not and all Bank notes or instru ments ordinarily so called if current as such and payable to the bearer And the words valuable security shall include every order or other security whatsoever entitling or evi dencing the title of any person to any share or interest in any public stock or fund whether of any part of the British Dominions or of any Foreign State or in any fund of any body corporate company or society whether within or without the British Dominions or to any deposit in any Bank and shall also include every debenture deed bond bill note cheque warrant order or security whatsoever for money or for payment of money whether current in any part of the British Dominions or in any Foreign State and every document of title to land or goods as hereinafter defined.
(c.) The term property shall include every description of real and personal property and also money valuable securities debts and legacies and all deeds and intruments relating to or evidencing the title or right to any property or giving a right to recover or receive any money or goods and shall include not only property originally in the possession or under the control of any party but also any property into or for which the same may have been converted or exchanged and everything ac quired by such conversion or exchange whether immediately or otherwise.
(d.) The term document of title to goods shall include every bill of lading India warrant dock warrant warehousekeeper's certificate warrant or order for the delivery or transfer of any goods or valuable thing and every bought and sold note or document used in the ordinary course of business as proof of the possession or control of goods or purporting to authorize by indorsement or delivery the possessor of such document to transfer or receive any goods thereby represented or therein mentioned or referred to.
(e.) The term document of title to land shall include every deed certificate of title map paper or parchment written or printed or partly written and partly printed being or containing evidence of the title or part of the title to any real estate or to any interest in or out of real estate.
(f.) The term Banker shall include every director or manager of any Banking company whether incorporated or not or of any branch thereof and every person carrying on the business
of a Banker.
(g.) The term trustee shall mean a trustee on some express trust howsoever created and shall include the heir or personal representative of such trustee and every other person upon whom the duty of such trust shall have devolved and also any official manager assignee liquidator or other like officer acting under any Act relating to joint stock companies or to bank ruptcy or insolvency.
(h.) The word Governor shall except in respect of the exercise of the pardoning power lie taken to mean the Governor with the advice of the Executive Council.(i.) The words person master and employer shall severally be construed to include whenever applicable thereto any society company or corporation.
(J.) The term cattle shall include any horse mare gelding colt foal filly ass mule bull cow ox steer heifer calf ram ewe sheep lamb pig goat deer alpaca llama or vicuna and every hybrid or cross thereof.
(k.)
(k.) Night shall be deemed to commence at nine of the clock in the evening of each day and to conclude at six of the clock in the morning of the next succeeding day.
(l.) Vessel shall mean any ship or vessel used in or intended for navigation not being an undecked boat and property belong ing to a vessel shall include every portion of its cargo and property belonging to any of the officers crew or passengers
thereof.
(m.) The word Oath shall include affirmation promise and decla ration in every case where by this or any other Act an affirma tion promise or declaration is allowed instead of an oath.
(n.) Railway shall include tramways and telegraph shall include
equally telephones,
(o.) The term Counsel shall include attorneys in all Courts where
attorneys now practise or shall hereafter practise as counsel.
4. Whenever by this Act a person is made liable to the punish
ment of death or of penal servitude the offence for which such punish
ment may be awarded is hereby declared to be and shall be dealt with
as felony and wherever in this Act the term felony is used the same
shall be taken to mean an offence punishable as aforesaid.
5. Whenever by this Act no greater punishment can be awarded than imprisonment with or without hard labour or whipping or the imposition of a fine in addition to or without imprisonment the offence shall be and be dealt with as a misdemeanour only.
G. In every section of this Act and in every sentence passed by any Court or Judge or Justices or Justice under this or any other Act or at Common Law the word month shall be taken to mean a calendar month unless the contrary be expressed.
7. Every act done of malice whether against an individual or any corporate body or number of individuals or done without malice but with indifference to human life or suffering or with intent to injure some person or persons or corporate body in property or otherwise and in any such case without lawful cause or excuse or done recklessly or wantonly shall be taken to have been done maliciously within the meaning of this Act and of every indictment and charge where malice is by law an ingredient in the crime.
| 8. Where by any section of this Act an offender is made liable to penal servitude for life or any other fixed term the Judge may never theless having regard to extenuating circumstances in the case if any pass a sentence to penal servitude of less duration as follows That is to say—instead of servitude for life a term of years not less than seven | —instead of servitude for fourteen years a term of not less than five | years—instead of servitude for ten years a term of not less than four |
| years—and instead of servitude for seven years a term of not less than three years Provided that where the term of servitude is ten or seven or five years the Judge may instead of servitude pass a sentence of imprisonment with or without hard labour as follows That is to say— instead of servitude for ten years imprisonment for any less term not less than three years—instead of servitude for seven years imprison ment for any less term not loss than two years—and instead of servitude for five years imprisonment for any less term not less than one year. |
PART I.
PART I . OFFENCES AGAINST THE PERSON.
Homicide.
9. Whosoever commits the crime of murder shall be liable to suffer death And murder shall be taken to be where the act of the accused or thing by him omitted to be done causing the death charged was done or omitted with reckless indifference to human life—or with intent to kill or inflict grievous bodily harm upon some person—or done in an attempt to commit or during or immediately after the commission by the accused or some accomplice with him of an act obviously dangerous to life or a crime punishable by death or penal servitude for life Every other punishable homicide shall be taken to be Manslaughter.
10. Where in any case of homicide the cause of death happened on the sea or elsewhere out of this Colony but the death was in this Colony or the cause of death happened in this Colony but the death was on the sea or elsewhere out of this Colony the offence may be dealt with in all respects as if the same had been wholly committed within this Colony.
11. On the trial of any person for the murder of a child such
child shall be held to have been born alive if it shall have breathed and have been wholly born into the world whether it had an independent circulation or not.
12. Whosoever conspires and agrees to murder any person whether a subject of Her Majesty or not and whether within the Queen's dominions or not or solicits encourages persuades or endea vours to persuade or proposes to any person to commit any such murder shall be liable to penal servitude for life.
13. Whosoever commits the crime of manslaughter shall be liable to penal servitude for life or any term not less than three years or to imprisonment with or wi thout hard labour for a term not exceeding three years Provided that in any case if the Judge is of opinion that having regard to all the circumstances it would properly be met by a nominal punishment it shall be lawful for him to discharge the jury from giving any verdict and such discharge shall operate as an acquittal.
14. No act or omission which was not malicious or for which
the accused had lawful cause or excuse shall be within the aforesaidninth section And no punishment or forfeiture shall be incurred by
any person who kills another by misfortune only or in his own defence. 15. Every offence which before the twenty-seventh day of June one thousand eight hundred and twenty-eight would have amounted to petit treason shall be deemed to be murder only and all persons guilty in respect thereof whether as principals or as accessories shall be dealt with and punished as principals or accessories in murder.
Attempts to Murder.
16. Whosoever administers to or causes to be taken by any person any poison or other destructive thing—or by any means wounds or causes grievous bodily harm to any person—with intent in any such case to commit murder shall be liable to suffer death.
17. Whosoever sets fire to any vessel or any chattel therein or any part of her tackle apparel or furniture—or casts away or destroys any vessel—or by the explosion of gunpowder or other explosive substance destroys or damages any building—or places or throws any
matter
matter or thing upon or across a railway or removes or displaces any sleeper or other thing belonging to a railway—with intent in any of the cases aforesaid to commit murder shall be liable to suffer death.
18. Whosoever attempts to administer to or cause to be taken by any person any poison or other destructive thing or shoots at any person or in any manner attempts to discharge any kind of loaded arms at any person or attempts to drown suffocate or strangle any person with intent in any of the cases aforesaid to commit murder shall whether any bodily injury be effected or not be liable to penal servitude for life.
19. Whosoever by any means other than those specified in the preceding sections attempts to commit murder shall be liable to penal servitude for life.
Letters threatening Murder.
20. Whosoever maliciously sends delivers or utters—or directly or indirectly causes to be received—knowing the contents thereof—• any letter or writing threatening to kill any person shall be liable to penal servitude for ten years.
Acts causing or intended to cause Bodily Harm.
21. Whosoever maliciously prevents or impedes any person on
board of or having quitted any ship or vessel in distress or wrecked stranded or cast on shore in his endeavour to save his life—or maliciously prevents or impedes any person in his endeavour to save the life of such
| first-mentioned | person—shall be liable to penal servitude for life. |
22. Whosoever maliciously by any means wounds or inflicts grievous bodily harm upon any person—or shoots at any person or in any manner attempts to discharge any kind of loaded arms at any person—with intent in any such case to do grievous bodily harm to any person or with intent to resist or prevent the lawful apprehension or detainer either of himself or any other person—shall be liable to penal servitude for life.
23. Any gun pistol or other arms loaded in the barrel or chamber with gunpowder or other explosive substance and with ball shot slug or other destructive material shall be deemed loaded arms within the meaning of this Act although the attempt to discharge the same may fail from want of proper priming or from any other cause and every gun pistol or other arms unlawfully presented at any person
| shall be deemed to be loaded unless the contrary be shown. 24. Whosoever maliciously by any means wounds or inflicts | grievous bodily harm upon any person shall be liable to penal servitude |
| for five years And any permanent or serious disfiguring of the person shall be included within the term grievous bodily harm for the purposes of this and the said twenty-second section. | |
| 25. Whosoever by any means attempts to choke suffocate or strangle any person—or by any means calculated to choke suffocate or strangle attempts to render any person insensible unconscious or incapable of resistance—with intent in any such case to enable himself or another person to commit or with intent in any such case to assist any person in committing an indictable offence—shall be liable to penal servitude for life. | |
| 26. Whosoever unlawfully applies or administers to or causes to be taken by—-or attempts to apply or administer to or cause to be taken by any person—any chloroform laudanum or other stupefying or overpowering drug or thing—with intent in any such case to enable himself or another person to commit or with intent to assist another person in committing an indictable offence—shall be liable to penal servitude for life. |
D 27. 27. Whosoever maliciously administers to or causes to he administered to or taken by any person any poison or other destructive or noxious thing so as to endanger the life of such person or so as to inflict upon such person grievous bodily harm shall be liable to penal servitude for ten years.
28. Whosoever maliciously administers to or causes to be administered to or taken by any person any poison or other destructive or noxious thing with intent to injure aggrieve or annoy such person shall be liable to penal servitude for five years.
29. Whosoever being legally liable to provide any wife child ward insane person apprentice or servant with necessary food clothing or lodging wilfully and without lawful excuse refuses or neglects to provide the same—or maliciously does or causes to be done any bodily harm to any wife child ward insane person apprentice or servant— so that in any such case his or her life is endangered or his or her health becomes or is or is likely to be seriously injured—shall be liable to penal servitude for five years And whosoever being legally liable to maintain his wife and child or children wilfully and without lawful excuse deserts such wife or any such child and remains absent from his home for the space of thirty days leaving such wife or child without the means of support shall be guilty of a misdemeanour and be liable to imprisonment for a term not exceeding three years.30. Whosoever unlawfully abandons or exposes any child under the age of two years whereby the life of such child was or is endan gered or its health was or is likely to be seriously injured shall be liable to penal servitude for five years.
31. Whosoever maliciously by the explosion of gunpowder or
other substance or the use of any corrosive fluid or destructive matter burns maims disfigures disables or does grievous bodily harm to any person shall be liable to penal servitude for life.
32. Whosoever maliciously causes any gunpowder or other explosive substance to explode or sends or delivers to or causes to be taken or received by any person any explosive substance or other dangerous or noxious thing—or puts or lays at any place or casts or throws at or upon or otherwise applies to any person any corrosive fluid or any destructive or explosive substance—with intent in any such case to burn maim disfigure disable or do grievous bodily harm to any person—shall whether bodily injury be effected or not be liable to penal servitude for life.
33. Whosoever maliciously places or throws into upon against whether or not an explosion takes place and whether or not bodily
or near any building ship or vessel any gunpowder or other explosive substance with intent to do some bodily injury to any person shall
injury is effected be liable to penal servitude for fourteen years. 34. Whosoever places or causes to be placed any spring-gun man-trap or other engine calculated to destroy human life or inflict grievous bodily harm on any person or continues any such engine so placed or knowingly permits the same to continue so placed—with intent in any such case to inflict grievous bodily harm—shall be liable to imprisonment for a term not exceeding four years Provided that nothing in this section shall extend to any gin or trap placed with the intention of destroying vermin or to any spring-gun man-trap or other engine placed in a dwelling-house for the protection thereof.
35. Whosoever maliciously puts or throws upon or across a railway any wood stone or other thing—or takes up removes or displaces any rail sleeper or other thing belonging to any railway—or turns moves or diverts or neglects to turn move or divert any point or other machinery belonging to any railway—or makes shows hides or removes any signal or light upon or near to any railway or does or
causes
causes to be done or neglects to do or cause to he done any other thing —with intent in any such case to injure or endanger the safety of any person travelling or being on such railway or in any railway carriage shall be liable to penal servitude for life.
36. Whosoever maliciously throws or causes to fall or strike at against into or upon any engine tender carriage or truck used upon a railway any wood stone or other thing with intent to injure or en danger the safety of any person in or upon such engine tender carriage or truck or in or upon any other engine tender carriage or truck of the same train shall be liable to penal servitude for life.
37. Whosoever by any unlawful or negligent act or omission causes grievous bodily injury to any person shall be liable to imprison ment for a term not exceeding two years—and whosoever by any such act or omission endangers or causes to be endangered the safety of any person conveyed or being in or upon a railway—shall be liable to imprisonment for a term not exceeding three years.
38. Whosoever by wanton or furious riding or driving or racing or other misconduct or by wilful neglect he being at the time on horseback or in charge of any carriage or other vehicle does or causes to be done to any person any bodily harm shall be liable to imprison ment for a term not exceeding two years.
Rape and similar Crimes.
39. Whosoever commits the crime of rape shall bo liable to suffer death And the consent of the woman if obtained by threats or terror shall be no defence to the charge And whosoever attempts to commit or assaults any female with intent to commit the crime of rape shall be liable to penal servitude for fourteen years.
40. Whosoever by any false pretence false representation or other fraudulent means or by the use of any intoxicating drug induces or procures a woman to have illicit carnal connection with a man or by any such means has such connection with a woman and whosoever has carnal knowledge of a woman with her consent under the belief induced by the language or conduct of the accused that he was her husband shall be liable to penal servitude for fourteen years.
41. Whosoever carnally knows any girl under the age of ten years shall be liable to suffer death and whosoever assaults with intent carnally to know any such girl or attempts to have such know
| ledge shall be liable to penal servitude for fourteen years. |
42. Whosoever unlawfully and carnally knows any girl of or above the age of ten years and under the age of fourteen years shall be liable to penal servitude for ten years and whosoever assaults with intent unlawfully and carnally to know any such girl or attempts to have such knowledge shall be liable to penal servitude for five years And the consent of the girl shall be no defence to any charge under this or the preceding section.
Criminal Assaults by Teachers &c
43. Whosoever being a schoolmaster or other teacher unlawfully and carnally knows any girl of or above the age of ten y e a r s and under the age of sixteen years being his pupil and whosoever being a father carnally knows any girl between such ages being his daughter shall be liable to penal servitude for fourteen years And whosoever being such schoolmaster or teacher or father assaults any such girl with intent to have such knowledge or by any means attempts to have such knowledge shall be liable to penal servitude for seven years And
the
the consent of the pupil or daughter shall be no defence to any charge under this section Provided that nothing in this clause contained shall prevent such schoolmaster teacher or parent from being prosecuted under either section forty-one or forty-two of this Act.
44. Whosoever indecently assaults any girl under the age of fourteen years whether with or without her consent shall be liable to penal servitude for five years And whosoever indecently assaults any female of or above the age of fourteen years shall be liable to imprison ment for a term not exceeding three years.
Abduction.
45. Where a woman of any age has an interest in property or is a presumptive heiress or next of kin to any one having such interest whosoever from motives of lucre takes away or detains such woman against her will with intent to marry or carnally know her or to cause her to be married or carnally known by any person shall be liable to penal servitude for fourteen years.
46. Whosoever fraudulently allures takes away or detains any female under the age of twenty-one years out of the possession and against the will of any person having the lawful charge of her with intent to marry or carnally know her or to cause her to be married to or carnally known by any person shall be liable to penal servitude for seven years And no offender under this or the last section shall be capable of taking any estate or interest in any property in her right and if any marriage has taken place the property of the wife shall be settled in such manner as the Supreme Court at the suit of the Attorney-General may appoint.
47. Whosoever by force takes away or detains against her will any female of any age with intent to marry or carnally know her or to cause her to be married to or carnally known by any person shall be liable to penal servitude for fourteen years.
48. Whosoever unlawfully takes or causes to be taken any unmarried girl under the age of sixteen years out of the possession and against the will of any person having the lawful charge of her shall be liable to imprisonment for a term not exceeding three years.
49. Whosoever by force or fraud leads or takes away entices away or detains any child under the age of twelve years with intent to deprive any person having the lawful charge of such child of the possession of such child—or with intent to steal any article upon or about the person of such child to whomsoever such article may belong
—and whosoever receives or harbours any such child knowing the same to have been so led taken enticed away or detained—shall be liable to penal servitude for ten years Provided that this section shall not extend to any person who shall in good faith have claimed a right to the possession of such child.
Certain Assaults not indecent.
50. Whosoever by threats or force prevents or endeavours to prevent any clergyman or other person duly authorized in that behalf from officiating in a place of divine worship or from the performance of his duty in the lawful burial of the dead in a burial-place or strikes or offers any violence to any clergyman or minister engaged in or to the knowledge of the offender about to engage in any of the duties aforesaid or going to perform the same shall be liable to imprisonment for a term not exceeding two years.
51. Whosoever wounds strikes or assaults any person while in
the execution of his duty concerning the preservation of a vessel in
distress
distress or any vessel or effects stranded or cast on shore or lying under water with intent to obstruct him or whereby he was obstructed in the execution of such duty shall be liable to penal servitude for seven years.
52. Whosoever assaults any person with intent to commit felony—or assaults resists or wilfully obstructs any officer while in the execution of his duty (such officer being a justice constable or other peace officer custom-house officer sheriff's officer or bailiff) or any person acting in aid of such officer—or assaults any person with intent to resist or prevent the lawful apprehension or detainer of any person for any offence—shall be liable to imprisonment for a term not exceeding two years.
53. Whosoever is convicted upon an indictment for an assault occasioning actual bodily harm shall be liable to penal servitude for five years—and whosoever is convicted upon an indictment for an assault although not occasioning actual bodily harm shall be liable to imprisonment for a term not exceeding two years and if committed upon a female shall in addition be liable to be once privately whipped And where any such first-mentioned assault or any aggravated assault specially so found by the jury was by a husband upon his wife the Judge if satisfied that her future safety is in peril may add to the sentence a declaration that she shall no longer be bound to cohabit with her husband which declaration shall have the effect in all respects of a degree of judicial separation on the ground of cruelty.
Bigamy.
54. Whosoever being married marries another person during the life of the former husband or wife wheresoever such second marriage takes place shall be liable to penal servitude for seven years Provided that no person shall be convicted under this section whose husband or wife has at the time of such second marriage been continually absent from such person for the space of seven years or if domiciled in this Colony at the time of the first marriage has been continually absent from the Colony for the space of five years then last past and was on reasonable grounds believed by the accused at the time of the second marriage not to be living—of which facts the proofs shall lie on the accused And whosoever whether married or unmarried marries the husband or wife of a person not continually so absent knowing him or her to be married and the former wife or husband to be alive shall
| be liable to penal servitude for five years. |
Attempts to procure Abortion.
55. Every woman being with child who unlawfully administers to herself any drug or noxious thing or unlawfully uses any instru ment or other means with intent to procure her miscarriage—and whosoever with intent to procure the miscarriage of any woman whether with child or not unlawfully administers to or causes to be taken by her any drug or noxious thing—or unlawfully uses any instrument or other means with the like intent—shall be liable to penal servitude for ten years.
56. Whosoever unlawfully supplies or procures any drug or noxious thing or any instrument or thing whatsoever knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of any woman whether with child or not shall be liable to penal servitude for five years.
Concealing
Concealing Birth or contributing to Death of a Child.
57. Where any woman has been delivered of a child every person who by any act after its death wilfully conceals or endeavours to conceal the birth of such child whether it died before or at or after its birth shall be liable to imprisonment for a term not exceeding four years And any person tried for the murder of a child may if acquitted of such murder be convicted under this section in case the evidence warrants such conviction.
58. Whosoever during or after the delivery of a child mali ciously inflicts on such child whether then wholly born or not any grievous bodily harm shall be liable to penal servitude for fourteen years—and where any woman delivered of a child and indicted for its murder has in any manner wilfully contributed to the death of such child whether during delivery or at or after its birth or there was on the body of such child any mark of violence wilfully caused by her and the jury (if they acquit her of the murder) so find she shall be liable to penal servitude for ten years.
Unnatural Offences.
59. Whosoever commits the abominable crime of buggery either with mankind or with any animal shall be liable to penal servitude for life or any term not less than five years.
60. Whosoever attempts to commit the said abominable crime or assaults any person with intent to commit the same shall be liable to penal servitude for five years And whosoever commits an indecent assault upon a male person of whatever age with or without the consent of such person shall be liable to penal servitude for the like term.
61. Carnal knowledge shall in every case under this Act be deemed complete upon proof of penetration only.
Explosive substances for injuring the Person.
62. Whosoever knowingly has in his possession or makes or manufactures any gunpowder explosive substance or dangerous or noxious thing or any machine engine instrument or thing with intent by means thereof to injure or otherwise commit or for the purpose of enabling another person to injure or otherwise commit an offence being felony against the person of any one shall be liable to penal servitude for five years.
OFFENCES UNDER PART I . PUNISHABLE BY JUSTICES.
63. Whosoever beats or uses any violence or threat of violence to any person with intent to deter or hinder him from buying or disposing of or to compel him to buy or dispose of any grain flour meal malt or vegetable produce in any market or other place—or beats or uses any such violence or threat to any person having the charge of any such commodity whilst on the way to or from any place with intent to stop the conveyance of the same—shall on conviction before two Justices be liable to imprisonment for a term not exceeding six months or to a fine not exceeding twenty pounds Provided that no person punished under this section shall be punished for the same offence under any other law.
64. Whosoever unlawfully and with violence or by any threat of violence prevents any person from or obstructs him in working at or exercising his lawful trade or occupation—or beats or uses any violence or threat of violence to any such person with intent so to prevent or obstruct him—shall on conviction before two Justices be
liable
liable to imprisonment for a term not exceeding six months or to a fine not exceeding twenty pounds Provided that no person punished under this section shall be punished for the same offence under any other law.
65. Whosoever unlawfully assaults any person shall on convic tion before two Justices be liable to imprisonment for a term not exceed ing three months or to pay a fine not exceeding exclusive of costs if ordered the sum of ten pounds And where such assault was upon an officer as defined in the fifty-second section in the execution of his duty or by the accused and another person in company with him or upon a child under twelve years or upon any female the offender shall be liable to imprisonment for a term not exceeding six months or to pay a fine not exceeding exclusive of costs if ordered the sum of twenty pounds.
66. I n case the Justices find the assault complained of to have been accompanied by an attempt to commit felony or are of opinion that the same is from any other circumstance a fit subject for prosecution by indictment they shall abstain from any adjudication thereupon and shall deal with the case by committal or holding to bail as in an ordinary case of prosecution by indictment.
67. If on the hearing of any such case of assault upon the merits the Justices deem the offence not to be proved or find the assault to have been justified or so trifling as not to call for punishment and accordingly dismiss the complaint they shall forthwith make out a certificate of such dismissal and deliver the same to the defendant.
68. Any person who obtains such certificate or who having been convicted pays the amount adjudged to be paid or suffers the imprison ment awarded shall be released from all proceedings civil or criminal for the same cause.
69. Nothing in the preceding sections shall authorize Justices
to hear any case of assault in which any question affecting the same
arises as to the title to land or any interest therein or accruing therefrom.
PART I I . LARCENY AND SIMILAR OFFENCES.
Larceny in General or by Bailees.
70. Every larceny whatever the value of the property stolen shall be deemed to be of the same nature and shall be subject to the same incidents in all respects as grand larceny was before the twenty- first day of June one thousand eight hundred and twenty-seven.
71. Whosoever being a bailee of any property fraudulently takes
or converts the same or any part thereof—or any property into or for which it has been converted or exchanged—to his own use or the use of any person other than the owner thereof—although ho shall not break bulk or otherwise determine the bailment—shall be guilty of larceny and may be convicted thereof upon an indictment for larceny And the accused shall be taken to be a bailee within this section although he may not have contracted to restore or deliver the specific property received by him or may only have contracted to restore or deliver the property specifically.
72. Whosoever is convicted of simple larceny or of any felony by this Act made punishable like simple larceny shall (except in the cases hereinafter otherwise provided for) be liable to penal servitude for five years.
Larceny
Larceny of Animals.
73. Wnosoever steals any cattle shall he liable to penal servitude for ten years And whosoever wilfully kills any cattle with intent to steal the carcass or skin or other part of the cattle so killed shall be liable to the same punishment as if he had been convicted of stealing the animal.
74. If on the trial of any person under the preceding section it be proved that he stole or killed an animal of the species described in the indictment but it is uncertain on the evidence what was its sex or age the accused shall not be entitled to an acquittal by reason of such uncertainty.
75. Whosoever steals any dog or has unlawfully in his posses sion or on his premises any stolen dog or the skin of any stolen dog knowing such dog to have been stolen the accused having been once or oftener summarily convicted of any such offence shall be liable to imprisonment for a term not exceeding one year.
76. Whosoever corruptly takes any money or reward directly or indirectly under pretence or upon account of aiding any person to recover any dog which has been stolen or which is in the possession of any person not being its owner shall be liable to imprisonment for a term not exceeding one year.
Larceny of Written Instruments.
77. Whosoever steals or for any fraudulent purpose destroys cancels obliterates or conceals the whole or any part of any valuable security or of any document of title to land shall be liable to the same punishment as if he had stolen a chattel and been convicted of simple larceny in respect thereof.
78. Whosoever steals or for any fraudulent purpose destroys cancels obliterates or conceals the whole or any part of any will codicil or other testamentary instrument either during the life of the testator or after his death or whether the same relates to real or personal estate or to both shall be liable to penal servitude for seven years.
79. Neither of the two last preceding sections nor any proceed ing conviction or judgment thereupon shall affect any remedy at law or in equity which any party aggrieved would have had if this Act had not been passed Provided that no conviction of an offender under either section shall be received in evidence in any action or suit
against him and that no person shall be convicted under either of the said sections in respect of any act done by him if before being charged with the offence he first disclosed such act on oath under compulsory process in a proceeding instituted in good faith by a party aggrieved or under compulsory examination in some matter in bankruptcy or insolvency.
80. Whosoever steals or for any fraudulent purpose takes from its place of deposit for the time-being or from any person having the lawful custody thereof—or unlawfully and maliciously cancels obliterates injures or destroys the whole or any part of any record document or writing of or belonging to any Court—or relating to any matter or cause civil or criminal pending or terminated in any Court or relating to the business of any office or employment under Her Majesty and being in any public office—shall be liable to penal servitude for seven years.
Things attached to or growing on Land.
81. Whosoever steals or rips cuts severs or breaks with intent
to steal any glass or woodwork belonging to any building or any metal or any utensil or fixture whether made of metal or other material or of
both
both respectively fixed in or to any building—or anything made of metal fixed in any land being private property or used as a fence to any dwelling-house garden or area or being in any square or street or in or on any place dedicated to public use or ornament—or in any burial- ground—shall be punished as in the case of simple larceny.
82. Whosoever steals or destroys or damages with intent to steal the whole or any part of any tree sapling shrub or plant or any under wood respectively growing in any park pleasure-ground garden orchard or avenue or in any ground belonging to any dwelling-house—where the value of the article stolen or the amount of injury done exceeds twenty shillings—or steals or destroys ordamages with intent to steal the whole or any part of any tree sapling shrub or plant or any underwood respectively growing elsewhere than in any situation before mentioned where the value of the article stolen or the amount of injury done exceeds five pounds—shall be punished as in the case of simple larceny.
83. Whosoever steals or destroys or damages with intent to steal the whole or any part of any tree sapling shrub or plant or any under wood if the value thereof or the amount of injury done exceeds five shillings shall if twice previously summarily convicted of any such offence be punished as in the case of simple larceny.
81. Whosoever steals or destroys or damages with intent to steal
any dead wood lying on land in the occupation of another person if such wood exceeds in value five shillings shall if twice previously summarily convicted of any such offence be punished as in the case of simple larceny.
85. Whosoever steals or destroys or damages with intent to steal any plant root fruit or vegetable production growing in any garden orchard pleasure-ground nursery-ground hot-house green-house or conservatory if twice previously convicted of any such offence shall be punished as in the case of simple larceny.
Larceny from Mines.
86. Whosoever steals or severs with intent to steal any gold or the ore of any metal or any metal or mineral of commercial value or any coal or cannel coal from any mine bed or vein thereof respectively or from any claim or land comprised in any lease or promise of lease for mining purposes by or on behalf of the Crown shall be punished as in the case of simple larceny.
| 87. Whosoever being employed in or about any mine or claim or any land comprised in any such lease or promise of lease as aforesaid | takes removes or conceals any gold or the ore of any metal or any |
| metal or mineral of commercial value found or being in such mine claim or land—with intent to defraud any mining company or partner ship or any proprietor of or adventurer in such mine claim or land or any workman or miner employed therein—shall be liable to imprisonment for a term not exceeding three years. | |
| 88. Whosoever being the holder of any lease issued under any Act relating to the gold-fields shall by any device or contrivance defraud or attempt to defraud Her Majesty of any gold or money payable by such lease or shall conceal or make a false statement as to the amount of any gold procured by him or shall falsify any account with in any such case a fraudulent intent shall be guilty of a mis demeanour. | |
| 89. Whosoever with intent to defraud his co-partner or co-ad venturer in any such claim or land or in any share or interest therein secretly keeps back or conceals any gold or any other metal or mineral of commercial value found in or upon or taken from such claim or land shall be punished as in the case of simple larceny. |
E Robbery
Robbery and similar Offences.
90. Whosoever robs or assaults with intent to rob any person or steals any chattel money or valuable security from the person of another shall unless where a greater punishment is provided by this Act be liable to penal servitude for ten years.
91. Whosoever commits any such felony as is mentioned in the
last preceding section and immediately before or at the time of or immediately after the commission thereof strikes or uses any other corporal violence to any person shall be liable to penal servitude for fourteen years And if the person so offending thereby wounds any person he shall be liable to penal servitude for life.
92. Whosoever being armed with an offensive weapon or instru ment or being in company with another person robs or assaults with intent to rob any person—or stops any mail or vehicle railway train or person conveying a mail with intent to rob or search the same —shall be liable to penal servitude for fourteen years.
93. Whosoever being armed with an offensive weapon or instru ment or being in company with another person so armed robs or assaults with intent to rob any person—-and immediately before or at the time of or immediately after such robbery or assault wounds or inflicts grievous bodily harm upon such person—shall be liable to penal servitude for life.94. Whosoever with menaces or by force demands any property from any person with intent to steal the same shall be liable to penal servitude for seven years.
95. Whosoever sends delivers or utters or directly or indirectly causes to be received knowing the contents thereof any letter or writing demanding any property of any person with menaces or any threat and without reasonable cause shall be liable to penal servitude for ten years.
96. Whosoever sends delivers or utters or directly or indirectly causes to be received knowing the contents thereof any letter or writing accusing or threatening to accuse a person of felony or of having committed or attempted to commit an infamous crime as hereinafter defined or of having committed an offence against decency in a public place with intent in any such case to extort or gain property from any person shall be liable to penal servitude for fourteen years.
97. Whosoever in any manner by words or otherwise accuses or threatens to accuse either the person to whom such accusation or threat is made or some other person of any such crime or offence with intent to extort or gain property from any person shall be liable to
penal servitude for ten years. 98. Whosoever by unlawful violence to or restraint of the body of any person or by any threat of such violence or restraint or by accusing or threatening to accuse a person of any such infamous crime compels or induces any person to execute make accept indorse alter or destroy the whole or any part of any valuable security or to write impress or affix any name or seal upon or to any paper or parch ment—with intent in any such case to defraud—shall be liable to penal servitude for fourteen years.
99. The crime of rape or of buggery or bestiality with man kind or an animal and every assault with intent to commit or attempt to commit any such crime and every solicitation promise or threat offered or made to any person whereby to induce him to commit or permit any such crime shall be deemed an infamous crime within the meaning of the three last preceding sections.
100. I t shall be immaterial whether any such menace or threat as aforesaid is of violence or injury or of an accusation to be caused or made by the offender or by any other person or whether the accusation if made shall purport to be that of the offender or some other person.
Sacrilege
Sacrilege Burglary and Housebreaking.
101. Whosoever breaks and enters any place of Divine worship and commits any felony therein or being in any place of Divine worship commits any felony therein and breaks out of the same shall be liable to penal servitude for fourteen years And every building or structure ordinarily used for Divine worship shall be deemed a place of Divine worship within this section.
102. Whosoever commits the crime of burglary shall be liable to penal servitude for fourteen years And whosoever enters the dwelling-house of another with intent to commit felony therein or being in such dwelling-house commits any felony therein and in either case breaks out of the said dwelling-house in the night shall be deemed guilty of burglary.
103. Whosoever breaks and enters any dwelling-house or any building appurtenant thereto and while therein or on premises occupied therewith assaults with intent to murder any person or inflicts grievous bodily harm upon any person shall be liable to suffer death.
104. Whosoever enters any dwelling-house in the night with intent to commit felony therein shall be liable to penal servitude for seven years.
105. No building although within the same curtilage with any dwelling-house and occupied therewith shall be deemed part of such dwelling-house unless there is a communication between such building and dwelling-house either immediate or by means of a covered passage leading from the one to the other.
106. Whosoever breaks and enters any building within the curtilage of a dwelling-house and occupied therewith but not being part thereof and commits any felony therein or being in any such building commits any felony therein and breaks out of the same shall be liable to penal servitude for ten years.
107. Whosoever breaks and enters any dwelling-house school- house shop warehouse or counting-house and commits any felony therein or being in any dwelling-house school-house shop warehouse or count ing-house commits any felony therein and breaks out of the same shall be liable to penal servitude for ten years.
108. Whosoever breaks and enters any place of Divine worship or any dwelling-house or any building within the curtilage school- house shop warehouse or counting-house with intent to commit felony therein shall be liable to penal servitude for seven years.
| 109. Whosoever is found at night under any of the circum stances in this section mentioned that is to say—being armed with any weapon or instrument with intent to enter a building and to commit felony therein—or having in his possession without lawful excuse any implement of housebreaking—or having his face blackened or otherwise disguised with intent to commit felony—or who enters or is in any building with intent to commit felony therein—shall be liable to penal servitude for five years. |
110. Whosoever is convicted under the last preceding section after a previous conviction for felony or misdemeanour of whatever kind shall on such subsequent conviction be liable to penal servitude for seven years.
Larceny in Dwelling-home.
111. Whosoever steals in a dwelling-house any property to the value in the whole of five pounds or more shall be liable to penal servitude for seven years And whosoever steals any property in a dwelling-house and uses thereafter any menace or threat to any person therein shall be liable to penal servitude for fourteen years.
Larceny
Larceny in Manufactories.
112. Whosoever steals to the value ten shillings any goods article or material while anywhere placed or exposed during the process or progress of manufacture shall he liable to penal servitude for a period not exceeding three years.
113. Whosoever for the purpose of manufacture or any special purpose connected with manufacture is employed to make prepare or work up or is intrusted with any goods article or material or with any tools or apparatus for the purpose of manufacture and sells pawns purloins secretes embezzles exchanges or otherwise fraudulently disposes of the same or any part thereof shall be liable to imprisonment for a term not exceeding four years.
114. Whosoever receives any such goods article or material or any tools or apparatus for manufacturing or working up the same knowing the same to have been purloined embezzled or secreted as aforesaid or that the person offering the same is fraudulently disposing thereof shall be liable to imprisonment for a term not exceeding four years.
Larceny from Ships or Wharfs.
115. Whosoever steals any property in any vessel barge or boat while in any haven or port or upon any navigable river or canal or in any creek or basin belonging to or communicating with any such haven port river or canal or steals any property from any dock wharf or quay shall be liable to penal servitude for seven years.
116. Whosoever steals or plunders any part of any vessel in distress or wrecked stranded or cast on shore or any property of any kind to the value of twenty shillings belonging to such vessel shall be liable to penal servitude for fourteen years.
Embezzlement or Larceny by Clerks and Servants.
117. Whosoever being a clerk or servant steals any property belonging to or in the possession or power of his master or employer or any property into or for which it may have been converted or exchanged shall be liable to penal servitude for ten years.
118. Whosoever being a clerk or servant fraudulently embezzles
cither the whole or any part of any property delivered to or received ortaken into possession by him for or in the name or on the account of
his master or employer shall be deemed to have stolen the same— although such property was not received into the possession of such
master or employer otherwise than by the actual possession of suchclerk or servant—and shall be liable to penal servitude for ten years.
119. Every person employed for any purpose as or in the capacity of a clerk or servant or as a collector of moneys—although temporarily only or employed also by other persons or employed to pay as well as receive moneys or although the accused had no authority from his employer to receive money or other property on his account— shall be deemed a clerk or servant whithin the meaning of the two last preceding sections.
120. On the prosecution of any person for the larceny or embezzlement by him as a clerk or servant of money the property of his master or employer it shall not be necessary to prove the larceny or embezzlement by him of any specific sum of money if there is proof of a general deficiency on the examination of the books of account or entries kept or made by him or otherwise and the jury are satisfied that the accused stole or fraudulently embezzled the deficient money or any part thereof.
121. Whosoever being employed in the Public Service steals any property or any part thereof intrusted to him or taken into his possession or being in his custody or under his control by virtue or colour of such employment shall be liable to penal servitude for ten years.
122. Whosoever being employed as last aforesaid fraudulently embezzles any property or any part thereof so intrusted to him or taken into his possession or being in his custody or under his control or fraudulently secretes removes or in any manner fraudulently appro priates or disposes of the same or any part thereof shall be deemed to have stolen the same.
123. Any property stolen within the meaning of the last two sections or either of them by any person employed as aforesaid shall be deemed to have been stolen from Her Majesty and may be described as the property of Her Majesty accordingly.
Larceny or Embezzlement by Joint Owners.
124. Whosoever being a member of any co-partnership or being one of two or more joint owners steals or embezzles any property of or belonging to such co-partnership or joint owners may be convicted of and punished for the offence as if he was not a member of the co partnership or one of such joint owners And the word co-partnership shall for the purposes of this section include all corporations and societies what soever.
Larceny by Tenants or Lodgers.
125. Whosoever being the tenant or occupier of any house building or lodging steals any chattel or fixture let to be used there- with whether the contract was entered into by the accused or by any person on his behalf shall be punished as in the case of simple larceny.
Frauds by Factors and other Agents.
126. Whosoever having been intrusted as an agent with any money or security for the payment of money with a direction in writing to apply pay or deliver such money or security or any part thereof respectively or the proceeds or any part of the proceeds of such security for any purpose or to any person specified in such direction mis appropriates in any manner such money security or proceeds or any part thereof respectively in violation of good faith and contrary to the terms of such direction shall be guilty of felony.
| 127. Whosoever having been intrusted as an agent with any without authority to sell negotiate transfer or pledge the same—or with | chattel or valuable security for safe custody or for any special purpose |
| any power of attorney for the sale or transfer of any share or interest in any public stock or fund or in any stock or fund of any body corporate or company—misappropriates in any manner such chattel or security or the proceeds of the same or any part thereof or the share or interest in the stock or fund to which such power of attorney relates or any part thereof in violation of good faith and contrary to the purpose for which such chattel security or power of attorney was intrusted to him shall be guilty of felony. | |
| 128. Nothing in the last two sections shall affect any trustee under any instrument or any mortgagee of property in respect of any act done by such trustee or mortgagee in relation to the property comprised in or affected by the trust or mortgage or shall restrain an agent from receiving money payable upon any valuable security accord ing to the tenor and effect thereof or from disposing of property on which he has any claim entitling him by law so to do unless such disposal extends to more than is requisite for satisfying such claim. |
129. For the purposes of the said two sections and the two now next following the word " intrusted " shall mean intrusted either solely or jointly with any other person—the word "agen t " shall include bankers merchants attorneys factors brokers and every other person acting in the capacity of an agent so intrusted—and the word " misappropriate" shall mean appropriate in any manner (whether by sale pledge or otherwise) to the agent's own use or benefit or the use or benefit of some one other than the person by or for whom he was so intrusted.
130. Whosoever being an agent intrusted with property for safe custody fraudulently sells negotiates transfers pledges or in any manner misappropriates the same or any part thereof shall be guilty of a misdemeanour—and whosoever being intrusted with any power of attorney for the sale or transfer of property fraudulently sells transfers or otherwise misappropriates the same or any part thereof shall be guilty of felony.
131. Any person being an agent intrusted with property for the purpose of sale or otherwise disposing of the same who otherwise than for the use of his principal and in violation of good faith transfers consigns pledges or delivers the same or any part thereof as security for money or other valuable thing borrowed or received or to be borrowed or received by such agent—or who obtains any advance of money or other valuable thing upon any undertaking by him to transfer consign pledge or deliver such property or any part thereof—shall be guilty of felony And every person assisting in the making of any such transfer consignment pledge or delivery knowing the same to be in violation of good faith shall be guilty of felony Provided that nothing in this section shall extend to any transfer consignment pledge or delivery made or agreed to be made as security for no greater sum than the amount if any then due to such agent and of any current bill or bills drawn by or on account of his principal and accepted by such agent.
132. For the purposes of the last section every agent intrusted with the possession of a document of title to property—whether derived immediately from the owner of the property or obtained by such agent by reason of his having possession of such property or of some other document of title thereto—shall be deemed to have been intrusted with the property indicated by such document and every transfer pledge or delivery of any such document shall be deemed a transfer pledge or delivery of the property indicated by the same and where any such document or the property thereby indicated is held by any person on the behalf or subject to the control of any
agent—And where any money or valuable security or other thing- such agent the same shall be taken to be in the possession of such is lent advanced or delivered to an agent intrusted as aforesaid on the faith of a contract or undertaking by him to transfer consign pledge or deliver any such property or document such money or valuable security or thing shall be deemed a loan or advance on the security of such property or document although the property or docu ment may not be actually received by the person making such loan or advance until a period subsequent thereto—And every agent in posses sion of property or of any such document of title shall be taken to have been intrusted therewith by the owner unless the contrary be shown.
133. Whosoever being a trustee of property for the use or benefit wholly or partially of some other person or for any public or charitable purpose converts or appropriates the same or any part thereof for the use or benefit of himself or some other person or for any other than such public or charitable purpose—or otherwise disposes of or destroys such property or any part thereof—in violation in any such case of good faith and with intent to defraud shall be guilty of felony
Justice at S. in the County (or Police District) of which said A.B. being duly sworn saith as follows :—
[The witness's statement is to be in the first person and it ought to be reasonably full as to all material facts.
The witness's signature or mark if from any cause unable
to write should be added. Then will follow this jurat and certificate.']
Sworn before me this day of 18
And I hereby certify that I have taken this deposition under the provisions of the " Criminal Law Amendment Act of 1883 " because it has been made to appear to me that the deponent is dangerously ill and that his evidence if not forthwith taken would probably be lost.
[Signature of Justice?]
[If the deposition be by Solemn Affirmation or Declaration the form will be varied accordingly.]
FIFTH SCHEDULE.
Certificate and Declaration at Executions.
1 W.S. being the Medical Officer of the Gaol at hereby certify that
I have this day witnessed the execution of C D . lately sentenced to death in the [Supreme or Circuit] Court holden at on the day of last which said CD. was in pursuance of such sentence hanged by the neck until his body was dead And we the undersigned L.M. and S.W. do hereby declare that we were this day present at the said execution and that the said CD. was in pursuance of his sentence hanged by the neck until his body was dead.
Witness our hands this day of A.D. 18 , SIXTH SCHEDULE.
(Where Whipping to he inflicted.)
Sections Enumerated. Offences.
Twenty-fifth Garotting. Twenty-sixth Using chloroform to commit indictable offences. Thirty-fifth Placing wood &c. on railway with intent. Thirty-sixth Casting stone &e. on railway carriage &c. Thirty-ninth Attempt to commit rape &e. Fortieth Procuring or having carnal knowledge by fraud.
Forty-first forty-second and Carnal knowledge of young girls.
forty-third ... ...
Forty-fourth Indecent assaults. Fifty-ninth ... Sodomy and bestiality. Sixtieth Attempt to commit such crimes &c. Ninety-third Robbery with arms and wounding. Two hundred and seventh Injuries to railways &c. Two hundred and tenth ... Injuries to works of art. Two hundred and twenty-first Maliciously and cruelly wounding cattle. SEVENTH SCHEDULE.
(Solemn Declarations.)
I (name) of (residence) do hereby solemnly declare and affirm that (the facts to be stated according to the Declarant's knowledge belief or information severally) And I make this Solemn Declaration as to the matter (or matters) aforesaid according to the law in this behalf made and subject to the punishment by law provided for any wilfully false statement in any such Declaration.
No. X V I I I .
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