43 Geo. 3, c. 59, contains enactments respecting county bridges. 1870 54 Geo. 3, c. 90, recites 43 Geo. 3, c. 59, and enacts that its pro- THE QUEEN visions shall extend to hundred bridges as well as to county bridges. CHART AND 55 Geo. 3, c. 143, mentions hundred bridges eo nomine. These LONGBRIDGE. statutes shew that there was a well-ascertained legal distinction between county and hundred bridges at the time of the passing of the Highway Act, 1835. Sections 58 and 62 of that Act shew that the liability, ratione tenuræ, is not abolished, and a clause might have been introduced respecting the liability of hundreds; but there is no such clause. [He also referred to Reg. v. Merionethshire (1), and Reg. v. Brécon. (2)] Barrow, for the prosecution, was stopped by the Court. BOVILL, C.J. In dealing with 5 & 6 Wm. 4, c. 50, it is necessary to consider what was the state of the law previous to that statute. There were then statutes relating to highways, and statutes relating to bridges. 5 & 6 Wm. 4, c. 50, is a statute for consolidating the law as to highways. It does not refer to the statutes relating to bridges, but only to those which relate to highways. It is true that in the interpretation clause (s. 5) we find it provided "that the word 'highways' shall be understood to mean all roads, bridges (not being county bridges), carriageways, cartways," &c. It has been argued that the word "highways" under this definition includes hundred bridges. If we were dealing with a legal term, and the expressions county bridge, hundred bridge, borough bridge, or liberty bridge, were known to the law, there might be some foundation for the argument. County bridge, however, is an expression not known to the law. It is merely a compendious. way of speaking of a public bridge which the county is liable to repair. In an indictment for the non-repair of a county bridge, it is not stated that the bridge is a county bridge, but that it is a bridge which the county is liable to repair. (3) A county bridge is, therefore, a public bridge which the county is liable to repair. The liability to repair a public bridge may however be imposed upon a hundred or a division, or a borough, or on one or more (1) 6 Q. B. 343. (2) 15 Q. B. 813; 18 L. J. (M.C.) 123. (3) See the form of indictment in Arch. Cr. Pl. 16th ed. 850. 1870 v. CHART AND individuals. All public bridges are county bridges, although they THE QUEEN may be repairable by the hundred, or borough, or division, or by individuals instead of by the county. It is true that in some LONGBRIDGE. statutes a distinction is drawn between county bridges and hundred bridges. 43 Geo. 3, c. 59, mentions "county bridges," and the words "hundred bridge" do not appear; but that Act only deals with bridges which counties are liable to repair. 54 Geo. 3, c. 90, deals with the repair of bridges repairable by hundreds or divisions, and it therefore specifically mentions these bridges, and extends to them the provisions of 43 Geo. 3, c. 59, with respect to county bridges. In 55 Geo. 3, c. 143, it was necessary to distinguish between county and hundred bridges. There is, however, no general distinction between county bridges and hundred bridges. I am of opinion, therefore, that the interpretation clause (s. 5) of the Highway Act, 1835, includes in the words "county bridges" all public bridges, although they may be repairable by divisions other than the county. It might as well be said, in a case where a township is liable to repair a highway, that such highway was not a parish highway, because not repairable by the parish, as to say that a public bridge is not a county bridge, because not repairable by the county, but by the hundred. With respect to the other parts of 5 & 6 Wm. 4, c. 50, I will only add that there is nothing in the statute to take away the liability of the hundred which existed formerly. The general rule is, that affirmative words do not take away such a liability as this. It is necessary that there should be some negative words to do so. It is not, however, necessary to consider this point, because the other reasons which I have given are sufficient for holding that 5 & 6 Wm. 4, c. 50, does not relieve the Upper Half Hundred of Chart and Longbridge from their liability to repair the bridge in question. WILLES, BYLES, and HANNEN, JJ., and CLEASBY, B., concurred. Attorneys for prosecution: Kingsford & Dorman, for Fraser, Attorneys for defendants: Furley, Hallett, & Creery, Ashford. THE QUEEN v. JOHN GUTHRIE. Indictment-Charge in one count of Assaulting and also of carnally knowing a Indictment, that the prisoner "in and upon one D., a girl above the age of ten years and under the age of twelve years. . . unlawfully did make an assault, and her, the said D., did then unlawfully and carnally know and abuse against the form of the statute," &c., &c. The offence of carnally knowing the girl was disproved, but the jury found the prisoner guilty of a common assault: Held, that the prisoner might be properly convicted of a common assault, on the ground that the indictment charged two distinct misdemeanours, viz., of assaulting and also of carnally knowing D., and that the prisoner might be found guilty of either of them. CASE stated by the Chairman of Quarter Sessions for the County Palatine of Durham. Indictment "that John Guthrie on the 24th of December, A.D. 1869, in and upon one Margaret Davidson, a girl above the age of ten years and under the age of twelve years, to wit, of the age of ten years and three days, unlawfully did make an assault, and her, the said Margaret Davidson, did then unlawfully and carnally know and abuse against the form of the statute in such case made and provided, and against the peace," &c. There was no other count in the indictment. Guthrie was tried on this indictment on the 4th of April, 1870. The offence of carnally knowing and abusing the girl was disproved, but there was evidence of an assault of an indecent and very violent character, which was left to the jury, who found Guthrie guilty of a common assault. The question was, whether Guthrie could be properly convicted on this indictment of a common assault. The case was argued before Bovill, C.J., Willes, Byles, and Hannen, JJ., and Cleasby, B. No counsel appeared for the prisoner. J. Edge, for the prosecution. This indictment is under 24 & 25 1870 May 7. 1870 Vict. c. 100, s. 51 (1), and the words "did make an assault" are THE QUEEN not necessary in charging the offence specified in this section. The V. GUTHRIE. indictment therefore contains two distinct charges, both misdemeanours, viz., a common assault and an offence under the section. The statutory offence may be committed although the girl consented, and a charge of assault is therefore not included in the charge of the statutory offence. A conviction for either of the misdemeanours charged may be good. The objection to the indictment, if any, could only be taken at the trial on the ground of duplicity. This was decided in Nash v. Reg. (2), where it was held that no objection can be taken after verdict to a count which charges two distinct offences. In Reg. v. Bankes (3) and Reg. v. Cockburn (4) it seems to have been assumed that on an indictment for carnally knowing a girl under ten years of age, the prisoner might be found guilty of a common assault if an assault were charged in the count, and found by the evidence to have been committed. In Rex v. Withall (5) prisoners indicted in one count for burglary and stealing money were found guilty of the stealing only, and it was held that this conviction was good. It has also been held that when the offence charged in a count necessarily includes a lesser offence, the prisoner may be convicted of such lesser offence, although it is not specifically charged: Reg. v. Ingram (6); Reg. v. Oliver (7); Reg. v. Yeadon (8); Reg. v. Taylor. (9) He also referred to Rex v. Dawson. (10) BOVILL, C.J. I am of opinion that this conviction should be affirmed. The indictment charges that the prisoner "did unlawfully and carnally know and abuse" the girl against the form of the statute; and it also charges an offence at common law, viz. : an assault. If any objection could be taken to this indictment, it (1) S. 51 of 24 & 25 Vict. c. 100, enacts that "whosoever shall unlawfully and carnally know and abuse any girl being above the age of ten years and under the age of twelve years, shall be guilty of a misdemeanour." (2) 4 B. & S. 935, 944; 33 L. J. (M.C.) 94, 97. (3) 8 C. & P. 574. (4) 3 Cox, 543. (5) 1 East, P. C. 517. (7) Bell, C. C. 287; 30 L. J. (M.C.) 12. (8) Leigh and Cave, 81; 31 L. J. (M.C.) 70. (9) Ante, p. 194. (10) 3 Stark. 62. 1870 v. GUTHRIE. could only be on the ground of duplicity. I think, however, that there is no good ground for such an objection. There is, no doubt, THE QUEEN a difference between the evidence necessary to convict for an assault and the evidence necessary for a conviction of the statutory offence charged in the indictment. The statutory offence may be committed, although there is consent; but if there is consent there cannot be an assault. In this indictment the substantive common law offence of an assault was charged, and there is no ground for not convicting for that which is thus distinctly charged, although another and a more serious charge follows it. The cases of Reg. v. Oliver (1), Reg. v. Ingram (2), and Reg. v. Taylor (3), are sufficient authorities for thus holding. I give this judgment on the ground that there is a distinct charge of an assault in the indictment as well as of a more serious crime, and I think that the charge of the latter crime does not prevent a conviction for the assault, which is also charged and has been proved. WILLES, J., concurred. BYLES, J. I cannot say that I am quite free from doubt, but I have not sufficient doubt to induce me to dissent from the rest of the Court. CLEASBY, B. I am of opinion that the conviction was right. It occurred to me during the argument that the indictment, in effect, only contained one charge, viz., of unlawfully and carnally knowing and abusing; but I think now that it contains also a second charge, viz., of assaulting. HANNEN, J., Concurred. Conviction affirmed. Attorneys for prosecution: Shum & Crossman, for J. Watson, Durham. (1) Bell, C. C. 287; 30 L. J. (M.C.) 12. (2) 1 Falk. 384. (3) Ante, p. 194. |