Personal Offences Act 1859 (SA)

ANNO VICESIMO SECUNDO ET VICESIMO TERTIO

No. 9.

Arb Act for cowolidating the Statute Law in+f'orce in South Australia

relating to Indictable Ofences ayainst the Person.

[Assented to, 1st September, 1859.3

W HEREAS it is expedient to amend and consolidate the Statute r,,,bl,-	Law in force in the Province of South Australia relating to Indictable Offences against the Pemon: Be it therefore Enacted by the Governor-in-Chief of the said Province, with the advice and consent of the Legislative Council and House of Assembly of the
said Province, in this present Parliament assembled, as follo~vs ;

As to Homicide:

1. Whosoever shall be convicted of murder, shall suffer death as f;d& , l,

a felon.

2. After every conviction for murder, sentence of death shall be Scntcnce for murder. 6and7W 4 c 30 E.

pronounced, but it shall not be necessary to express the time for the	G.	jl; ;	.
execution thereof; if no time for the execution be expressed in the sentence, it shall take place on the twenty-first day after the day on which sentence shall be pronounced; and the Judge shall have the same power as to respiting the execution of the sentence in all re-

~pects as after convictions for other capital offences.

3. The body of every person executed for murder shall be buried ~ o d y, after execution

within the precincts of the prison in which he shall have been last; ~ ~ ~ $ ~, ", u ~ &

confined after conviction, and the sentence of the Court shall so S. 16. 4 and 6 W. 4,	c. 26, S. 1. 9 G,	4, c.
direct: Provided nevertheless, that the omission so to direct shall not affect the validity of the sentence.

z 4. Eveq

NauaI&rrghter.

0 G. 4, c. 31, S. 9.	4. Every person convicted of manslaughter shaIl be Iiable, at the tliscretion of the Court, to be imprisoned for life, or for any less term, with or without hard labor, or to pay such fine as the Court shall award, in addition to or without any such other discretionary punishment as aforesaid.
Illdictmcnt fur nltlr-
der or man~h igh tc r.	5. In any indictment or information for murder or manslaughter it shall not be necessary to set forth the manner in which or the

14 l5 yict,, c.

S. 4.	means by which the death of the deceased was caused, but it shall bc sufficient in every indictment or information for murder to charge that the defendant did feloniously, wilfully, and of his malice aforethought kill and murder the deceased; and it shall be sufficient in every in- dictment or information for manslaughter, to charge that the defen- dant clid feloniously kill and slay the deceased.
Excusnblc homicide.
9 G. 4, o. 31, S. 10.	6. NO punishment or forfeiture shall be incurred by any person who shall kill another by misfortune or in his own defence, or in any other manner without felony.
Petit treason.	7. Every offence, which, before the commencement of the Act of the ninth year of King George the Fourth, chapter thirty-one, would have amounted to petit treason, shall be deemed to be murder only, and no greater offence; and all persons guilty in respect thereof, whether as principals or as accessories, shall be dealt with, tried, and punished as principals and accessories in murder.
9 G. 4, c. 31, S. 2.

As to attempts to murder:

Administering poison,

or etabbing, cutting, 8. Whosoever shall administer to or cause to be taken by any per-

ar wounding, within-	son any poison or other destructive thing, or shall stab, cut, or wound
tent to murder.
any person, or shall by any means whatsoever cause to any person

Vict,, c, 86, 2.

any bodily injury dangerous to life, with intent, in any of the cases aforesaid, to commit murder, shall be guilty of felony, and being con- victed thereof shall suffer death as a felon.

Attempting to ad- 9. Whosoever shall attempt to administer to any person any poison

minister poison, or

nhooting, or attempt-	or other destructive thing, or shall shoot at any person, or shall, by
ing to shoot, or at-
tempting to drown,	drawiilg a trigger or in any other manner, attempt to discharge any
&C., with intent to	kind of loaded arms at any person, or shall attempt to drown, suffo-
murder.
IVict., c. 85, ss. 3, 8.	cate, or strangle any person, with intent, in any of the cases aforesaid, to commit murder, shall, although no bodily injury be effected, be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for life, or for any less term, with or without hard labor, and with or without soli- tary confinement.

As to acts causing or tending to cause danger to life or bodily

harm:

Shooting or attempt-

ing to shoot, or stab- 10. Whosoever unIawfully and maliciously shall shoot at any per

bing, cutting, or son, or, by drawing a trigger or in any other manner attempt to dis charge any kind of loaded arms at any person, or shall stab, cut, or

wound

wound any person, with intent, in any of the cases aforesaid, to tent "oundinowithin- to do grievous

maim, disfigure, or disable such person, or to do some other grievous bodilyharm.

bodily harm to such person, or with intent to resist or prevent the l Vict., c. 861 *B	*l
lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof s h d be liable, at the discretion of the Conrt, to be imprisoned for life, or for any less term, with or without hard labor, and with or without solitary confinement.

11. Whosoever shall unlawfully and maliciously inflict any grievous bodily harm upon m y other person, either with or without any	Intticting bodily in-
jury, with or without

weapon or instrument, or shall unlawfully and malicioulp stab, cut, 14 and 16 Vict.7 0.191

or wound any other person, shall be guilty of a misdcmeanor, and " .'.

being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding three years, with or without hard labor.

12. If upon the trial of any indictment for any felony, except ~;~;t;;~g~e~;n~

murder or manslaughter where the indictment shall allege that the ,,a found guilty of

party accused did stab, cut, or wound any person, the Jury shall be :&? P ' i ; ; d ; l i &+

satisfied that the party accused is guilty of the stabbing, cutting, or 14 and 16 Vict., C 19,

wounding charged in such indictment, but are not satisfied that hc	6.
is guilty of the felony charged in such indictment, then and in evcry such case the Jury may acquit him of such felony, and find him guilty of unlawfully stabbing, cutting, or wounding; and thereupou he shall be liable to be punished in the same manner as if he had been convicted upon an indictment for the misdemeanor of stabbing, cutting, or wonnding.

1 3. W hosocver shall unlswfully and ma~iciously, by the explosion by Causing gunpowder bodily . injury

of gunpowder or other explosive substance, burn, maim, disfigure, ssa,d 10 Vict., c, zs;,

disable, or do any grievous bodily halm to any person, shall be guilty	37	99
of felony, and being convicted thereof shall be liable, at the discre- tion of the Court, to be imprisoned for life, or for any less term, with or without hard labor, and with or without solitary confine-

ment.

14. Whosoever shdl unlawfully and nmliciously cause any gun- ~ ~ ~ ~ d ~ $ ~ ~ -

powder or other explosive substance to explode, or send or deliver ing to any person an

to or cause to be taken or received by any person any explosive sub- ~ p t $ ~ ~ ~ b ~ ~ ~ ~ O e

stance or any other dangerous or noxious thing, or cast or throw at fluid on a p e r m w i t h

intont to do grievow

or upon or otherwise apply to any person any corrosive fluid or other harm,

destructive or explosive substance, wlth intent, in any of the cases 9 and 10 Vict., c. 26,	aforesaid, to burn, maim, disfigure, or disable any person, or to do 88. 4, 5,	11.
some grievous bodily harm to any person, shall, whether any bodily hijury be effected or not, be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be im- prisoned for life, or for any less term, with or without hard labor, and with or without solitary confinement.

15. Whosoever shall unlawfully and maliciously place or throw

in, into, upon, against, or near any building or vessel any gunpowder intent to do bodily in-

Or jury to any person.

m. 6, 9, 11. 9 and l*Vict., c. 2 4 or other explosive substance, with intent to do any bodily damage to

any person, shall, whether or not any explosion take place, or whether or not any injury is effected to any person, be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding eight years, with or without hard labor, and with or without solitaly confinement.

Destroying or aamag-

ing a building with 16, Whosoever, by the explosion of gunpowder or other explosive

gunpowderl with in-	substance, shall destroy or damage any building, with intent to mur-
tent to murder.	der any person, shall be guilty of felony, and being convicted thereof
9 and 10 Vict., c. 26,
ss. 2, 4 9.	shall be liable, at the discretion of the Court, to be imprisoned for life, or for any less term, with or without hard labor, and with or without solitary confinement.
Makiag or having	17. Whosoever shall knowingly have in his possession, or make or manufacture, any gunpowder, explosive substance, or any danger-

gunpowder, &C.,	with
intent to	an

of the offencorn in & ous or noxious thing, or any machine, engine, instrument, or thing,

four preceding sec-

tions. .. with intent by means thereof to commit, or for the purpose of ena- preceding sections of this Act mentioned, shall be guilty of a misde- meanor, and being convicted thereof shall bc liable, at the discretion of the Court, to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement.

9ana loVicty, c. 25,	bling any other person to commit, any of the offences in the four last
ss. 4 9, 11.
setting fire to or ca5t-

ing away a ship, with 18. Whosoever shall set fire to, cast away, or in anywise destroy

bten+, to murder. any ship or vessel, with intent to murder any person, shall be guilty

1 c. 89, *. of felony, and being convicted thereof shall suffer death ills a felon.

Impeding a person,	19. Whosoever shall by force prevent or impede any person en- and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for life, or for any less term, with or without
himsdf from ,+-	deavoring to save his life from any ship or vessel which shall be in
wreck.

endeavoring to save

1 Vict., c. 89, SS. 7,12. on board or shall have quitted the same), shall be guilty of felony, distress, or wrecked, stranded, or cast on shore (whether he shall be

hard labor, and with or without solitaxy confinement,.

setting spring gum, 20. Whosoever shall set or place or cause to be set or placed any

witqintent* to

infiict grievous bodily	spring gun, man trap, or other engine calculated to destroy human
harm.
7 and 8, G. 4, c. 18,	life, or inflict grievous bodily harm, with the intent that the same or
W. 1-4.	whereby the same may destroy or inflict grievous bodily harm upon
a trespasser or other person coming in contact therewith, shall be
guilty of a misdemeanor; and whosoever shall knowingly and wilfully permit any such spring gun, man trap, or other engine as aforesaid, which may have been set, fixed, or left in any place then being in or afterwards coming into his possession or occupation by some other person to continue eo set or fixed, shall be deemed to have set and fixed such gun, trap, or engine, with such intent as aforsaid: Pro- vided, that nothing in this section contained shall extend to make it illegal to set any gin or trap such as may have been or may be usually
set with the intent of destroying vermin: Provided also, that nothing

in

in this sectioli shall btl deemeti or construed to malw it a iniscleii~eanol+,

within the meaning of this section, to set or cause to be set or to bt!

continued set, from sunset to sunrise, any spring gun, man trap, or

other engine which shall be set or caused or continuecl to be set in a

dwelling house for the protection thereof.

21. Whosoever shall wilfully and maliciously put, place, cast, or ~ l ~ c i ~ ~ o o d ~ kc.7 0a

a railway with intent

throw upon or across any railway any wood, stone, or other inattcr or to endanger passen-

thing, or shall wilfully and maliciously ta le up, remove, or displace f;ind Vict,,

any rail, sleeper, or other matter or thing belonging to any railway,

6.

or shall wilfully and xnaliciously turn, move, or divert any points or other machinery belonging to any railway, or shall wilfully and ma- liciously make or show, hlcle or remove, any signal or light upon or near to any railway, or shall wilfully and maliciously do or cause to be done any other matter or thing, with intent, in any of the cases aforesaid, to endanger the safety of any person tnwelliimg or being upon such railway, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be im- prisoned for life, or for any less term, witEl or withont hard labor.

22. Whosoever shall wilfully nncl maliciously cast, tlirow, or cause Casting stone, &C., upon a radway car-

to fall or st rilce against, into, or upon any engine, tender, carriage, with intent to

or truck used upon any railway, any mood, stone, or other niatter or endanger the barety of any person therein.

thing, with intent to endanger the safety of any person bcing in or 14 .	d	.	Ijyict,, 19,
upon such cngine, tcnder, ca~riagc, or truck, shall bc guilty of felony,	7.
and being convicted thrrcof shall ho liable at the discretion of t6r hard labor.

23. Whosoever shall wilfully do or cause to be done anyt l i in~ such manner as to endanger the safety of any person convrycd in or in Doing anythingto en- dnuger passengers by

upon a railway, shall be guilty of a nii~dcmcanor, alld being convicted 3an(1.1 Vict., c 97,s. 15.

thereof shall be liable, at the discretion of the Court, to be mnlprisonect for any term not exceeding two years, with or without hard labor.

24, Whosoever, being a coaclman or other person 11,2\-ing tlic Drivers of stage coaches maiming per-

charge of any stage coach or public carriage, sl.1al1, by wanton or sons by fiLrious driv-

furious driving or racing, or other wilful inisconduct, ~uainl or other- ing;. 1 G. 4, c. 4.

wise injure any person whatsoever, shall be guilty of a misden~ennor.

25. \5Thosoever, being the master or mistress of any person a id

legally liable to provide for such person, as an apprentice or as a Not providingnppren- t i w y 01. servants with

servant, necessary food, clothing, or lodging, s ld l wilfully and food, a,,, er

without lawful excuse refuse or neglect to provide the same, or shall	i w then?, aFht-lcby
hfe rr~ilangcxt e,l.

unla~fully and maliciously ,zssnult such person, so that in any of 1% viLt,, l, ,

the cases aforesaid the life of such person shall be endangered, or

the health of such person shall have been or shall be likely to be

permanently injured, shall be guilty of x misdemeanor, and being convicted thereof shall bc liable at the discretion of tlic Court, to be imprisoned for any term not exceding three years, with or without hard labor.

A 2 26. Wlri>socvt?~~

Ueing chloroform, &C.,

to commit fdony.	26. Whosoever shall unlawfully apply or administer, or attempt or other stupifying or overpowering drug, matter, or thing, with intent thereby to enable himself or any other person to commit, or with intent to assist himself or any other person in committing any felony, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for life, or for any less term, with or without hard labor.
14 and 16 Vict., c. 19,	to apply or administer, to any person, any chloroform, laudanurn,
m. 3.

As to assaults:

Agsaulting a magis-

trate, &c,, on account	27. Whosoever shall assault and strike or wound any magistrate, of the exercise of his duty in or concerning the preservation of any vessel in distress, or of any vessel, goods, or effects wrecked, stran- ded, or cast on shore, or lying under water, being convicted thereof, shall be liable, a t the discretion of the Court, to be imprisoned for four years, or for such term as the Court shall award, with or without hard labor.
of his preserving	officer, or other person whatsoever lawfully authorized, on account
wreck.
9 G. 4, e, 31, s, 24.

Ame*ing cler@'- 28.

If any person shall arrest any clergyman upon any civil pro- cess, while he shall be performing Divine Service, or shall with the knowledge of such person, be going to perform the same, or be re- turning from the performance thereof, every such offender shall be guilty of n misdemeanor.

man during D i m e

Bemce.

Assault with intent	to commit felony, or 29+ Where ' any person shall he charged with and convicted of
Qn peace oicers, &C. any of the following offences as misderneanors, that is to say, of 4, c. 317 25- any assault with intent to commit felony, of any assault upon any peace oFficcr or revenue officer in the due execution of his duty, or

upon any person acting in aid of such officer, of any assault upon

any person with intent to resist or prevent the lawful apprehension

or detainer of the party so assaulting, or of any other persoil for any

offence for which he or such other person Inay be liable by Law to be ,apprehended or detained, or of any assault comlritted in pursu- ance of any conspiracy to raise the rate of wages, in any such case the Court may sentence the offender to be imprisoned for any term

not exceeding two years, with or without hard labor.

Assaulting a person

apprehending for an 30. Whosoever, being found committing m y indictable offence

within 14 and in the night, that is to say, between the hour of nine at night and

16Vict.9 c.	ll.	the hour of six in the next morning, and being liable to be appre-
hended therefor, shall assault or offer any violence to any person by Law authorized to apprehend or detain him for such offence, and endenvorin8 so to do, or any person acting in his aid or assistance, shall be guilty of a misdemeanor, and being convicted thereof shall
be liable, at the discretion of the Court, to be imprisoned for any
term not exceeding three years, with or without hard labor.

Indecent assault, or

assault occasiohing 31. Whosoever shall be coiivicted of au indecent assault, or any

bodily harm.

assault occasioning actual bodily harm, may be sentenced by the

14 and 15 Vict, 0.

100, S. 29.

Court to he imprisoned for any tern] now warranted by law, and

also

also to be kept to hard Inbor daring the whole or any part of such

term of imprisonn~ent.

As to rape, abduction, or defilement of women:

32. Whosoever shall be convicted of the crime of rape, shall be p ~; ~ c,

,$, . I

liable, at the discretion of the Court, to be imprisoned for life, or 1s. ?'and d'vict., c.

for any term not less than four years, with or without hard labor. :Bit,: ~,drlOvict.,

33. whosoever shall, by false pretences, false re resenhtions, or Procuring the defile.

girLider

other fraudulent means, procure any woman or chi p d under the age ::lt of twenty-one years to have any illicit carnal connexion with any 12 and lzVict., c. 76,

man, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned, and kept to hard labor, for any term not exceeding two years.

34. Whosoever shall unlawfully and carnally know and abuse Carna* knowing B

any girl under the age of ten years shall he guilty of felony, and ten~cam

being convicted thereof shall be liable, at the discretion of the Court, 9 G. 4, c. 31,as. 17, 18. 4 and 5 Vict., c.

to be imprisoned for life, or for any term not less than four years, 56,	S.
with or without hard labor.

35. Whosoever shall unlawfully and carnally know and abuse Carnally knowings

any girl being above the age of ten years and under the age of @ 1 between the agea

of ten and twelve.

twelve years, shall be guilty of a misdemeanor, and being convicted 9 G. a, 0.31, sa. 11,18.

thereof shall bc liable, at the discretion of the Court, to be im- prisoned for such term as the Court shall award, with or without hard labor.

36. Whosoever shall be convicted of any attempt to have carnal Attempt to commit

knowledge of any girl under twelve years of age, may be sentenced 14 8: 16 vict,, c. lob, the last two offencee

by the Court to be imprisoned for any term now warranted by law, 6.29

and also to be kept to hard labor during the whole or any part of

such term of imprisonment.

37. Whosoever shall, from motives of lucre, take away or detain Abductionof awoman against her will, from

against her will any woman who shall have any interest, whether ,,tives	,flu,,,.
legal or equitable, present or future, absolute, conditional, or con- 9G.41	31,s. 19.
tingent, in any real or personal estate, or who shall be an heiress presumptive or next of kill to any one having such interest, with intent to marry or defile her, or to cause her to be married or de- filed by any other person, shall be guilty of felony, and being con- victed thereof shall be liable, at the discretion of the Court, to be imprisoned for life, or for any less term, with or without hard labor.

38. Whosoever shall unlawfully take or cause to be taken any Abduction of a girl

unmarried girl, being under the age of sixteen years, out of the age. under sixteen years of

possession and apinst the will of her father or mother, or of any 9 G. 4, c. 31,s. 20.

other pason hav~ng	the lawful care or charge of her, shall be guilty
of a misdemeanor.

3 9. Whosoever

Child-stealing

9 G, 4, c. 31, S. 21.	39. Whosoever shall maliciously, either by force or fraud, Ieatl or take away, or decoy or entice away or detain, any child under the age of ten years, with intent to deprive the parent or parents, or
any other person having the lawful care or 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 whonlsoever such article may belong, or whosoever shall, with any such intent as aforesaid, receive or harbor any such child knowing the same to have been by force or fraud, led, taken, decoyed, enticed away, or detained as in this section before mentioned, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for the term of four years, or any less term, with or without hard labor: Provided that no person who shall have claimed to be the father of an illegitimate child, or to have any right to the possession of such child, shall be liable to be prosecuted by virtue hereof on account of his getting possession of such child, or taking such child out of the posses- sion of the mother or any other person having the lawful charge thereof.

As to procuring abortion, and as to concealment of birth:

40. Whosoever, with intent to procure the miscarriage of any any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for life, or for any less term, with or without hard labor, or with or without solitary confinement.

kdmh'8teMg

or using instruments,

to procure abortion,	woman, shall unlawfully administer to her or cause to be tdcen by
l

8. ' 9 her any poison or other noxious thiug, or shall unlawfully use

Concealing the birth	41. If any woman shall be delivered of a child, and shall, by secret burying or otherwise disposing of the dead body of the said child. endeavor to conceal the birth thereof, every such offender shall'be guilty of a rnisdemeanor, and, being convi'2ed thereof shall be liable, at the discretion of the Court, to be imprisoned for any
of a child.
9 Q. 4, C. 31, 8. 14.

term not exceeding two years, with or without hard labor; and it

shall not be necessary to prove whether thc child died before, at, or after its birth: Provided that if any woman tried for the murder of her child shall be acquitted thereof, it shall be lawful for the jury by whose verdict she shall be acquitted to find, in case it shall so appear in evidence, that she was delivered of a child, and that she did, by secret burying or otherwise disposing of the dead body of such child, endeavor to conceal the birth thereof, and thereupon the Court may pass such sentence as if she had been convicted upon an indictment for the concealment of the b i~th.

As to unnatural offences:

Bodomy and hem-

tiality. 42. Whosoever shall be convicted of the abominable crime of

9 a. 4, c. 31, B, 15.

buggery, committed either with mankind or with any aniniiff, shall

be imprisoned for life, with solitary confinement.

43. It

43. It shall not be necessary upon the trial for any of the offences *-

mentioned in the thirty-second, thirty-fourth, thirty-fifth, or forty- 9 Q. 4, c. 31,

second sections of this Act, to prove the actual emission of seed in

order to constitute a carnal knowledge, but the carnal knowledge

shall be deemed complete upon proof of penetration only.

As to other matters:

44. I n all cases where any person shall be convicted of a misde- the peace, in Fine and sureties for

ernes.

meanor under this Act, it shall be lawful for the Court, if i t shall ties for keeping the peace and being of good behaviour, both or either; and in all cases of felonies in this Act mentioned, not punish- able with death, it shall be lawful for the Court, if i t shall think fit, to require the offender to find sureties for keeping the peace, in ad- dition to any of the punishments by this Act authorized,

think fit, in addition to or in lieu of any of the punishments by this

45. Every accessory after the fact to murder shall be liable, rat the A ccesaories after the fact to murder.

discretion of the Court, to be imprisoned for life, or for any less term, 9 G. 4, ,.	31, ,	3.	.
with or without hard labor.

46. Where in~prisonrncnt, with or without hard labor, other than ~ ~ ! n ~ ~ ~ ~ t ~ ~ ~ ~ ~

imprisonment for life, Inay be awarded for any offence under this whippmg. be imprisoned and kept to hard lahor, in any common gaol or labor prison; and where solitary confinement may be awarded for any offence under this Act, the Court may direct the offender to be kept in solitary confinement for any portion or portions of his imprisonmcnt, or of his iinprisonment with hard labor, not exceed- ing onc month at any one timc, and not exceeding three months in any one year; and where any offender, convicted under any clause of this Act: shall be under the age of fourteen years, the Court may sentence the offender, if a male, but not otherwise, to be once, twice, or thrice publicly or privately whipped

47. Throughout this Act, u n l e ~ tkere be something in the Interpretation clause.

subject or context repugnant to such construction, every word im- porting the masculine gender or singular number shall be construed to include the feminine and plural respectively, and vice versd, and bodies politic and corporate, as well as individuals.

48. This Act shall commence and take effect from the passing Commcnccment nf

;thereof, Act.

-- -F - .- -L-

-- -p-

-l

Adelaide: Printed by authority, by W. C- CuxI Government Prinicr, ~Tictoria-syuwe.

B 2