1830.

WOOD and

Case.

upon this word, and not choosing to run counter to an opinion said to be entertained by Mr. JUSTICE LITTLEDALE, unless sanctioned by the other JUDGES, M'MAHON'S conferred with BOSANQUET J., and with his approbation respited the judgment till the next assizes, in order in the mean time to obtain the opinion of THE JUDGES on this point.

This case was considered by all the JUDGES, (except ALEXANDER C. B., LITTLEDALE J., and ALDERSON J., Michaelmas term, 1830. There was a considerable discussion and difference of opinion in this case. Lord TENTERDEN said he thought the word wound was not introduced to cure the difficulty, whether a cutting or stabbing instrument was used. In this case from the continuity of the skin not being broken, it was thought by all, except BAILEY B. and PARK J., that there was no wound within the act, and that the conviction was therefore wrong.

REX v. GEORGE HOOD.

1830.

THE prisoner was tried and convicted before Mr. A warrant, BARON VAUGHAN, at the Summer assizes for the for the Chrisleaving a blank county of Wilts in the year 1830, on an indictment tian name of the person to charging Samuel Hood, John Hood, and the prisoner be apprehendwith assaulting John Staple on the 15th of May last, ed, and giving at the parish of Fugglestone St. Peter, and with a certain sharp instrument, to wit, with a sword, feloniously, unlawfully, and maliciously, striking, cutting,

no reason for

omitting it, but describing

him only as the son of

J. S. L. and stating the

charge to be for assaulting A. B., without particularising the time, place, or any other circumstances of the assault, is too general and unspecific; a resistance to an arrest thereon, and killing the person attempting to execute it, will not be murder. The wife of one of several prisoners is inadmissible as a witness.

1830.

HOOD's Case.

stabbing, and wounding the said John Staple in and upon the right side, with intent to resist and prevent the lawful apprehension and detainer of the said George Hood, for a certain offence, to wit, for an assault before then committed by him, the said George Hood, upon one Francis Brown, for which he was then and there by law liable to be apprehended and detained.

2d count. The like, with intent to resist and prevent the lawful apprehension and detainer of the said George Hood, for a certain offence for which he was liable by law to be apprehended and detained.

3d. The like, with intent to do some grievous bodily harm.

One William Wyatt had sued out a capias ad respondendum against the elder prisoner, Samuel Hood, tested on the 28th of April, in the eleventh year of the reign of his late Majesty George the Fourth, returnable on the morrow of the Ascension, upon which a warrant was granted by the sheriff of Wiltshire, and delivered to Francis Brown, one of his officers, on the 13th of May, with instructions to arrest the defendant Samuel Hood.

Samuel Hood was, at that time, residing in the hamlet of Bemerton, in the parish of Fugglestone St. Peter, in the county of Wilts, together with his family, consisting of his wife and daughter and four sons, two of whom were the prisoners John Hood and George. On the following day, being the 14th of May, Francis Brown went to the house of Samuel Hood at Bemerton to arrest him; and, observing the garden-door open, walked into the garden, where he found the two younger prisoners, John and George Hood; and saw Samuel, the father, the elder prisoner, within the house, standing at a window, with a sword or cutlass which he held in his right hand, and said,

"Damn your eyes, if you enter my house, the first man shall have it through his body." George Hood, having a sword stick, or tuck, in his hand, with the dagger part of it exposed, said to Francis Brown, that if he proceeded another inch he would run him through the body; and, on Brown advancing a few paces towards the back door of the house, George Hood seized a garden hoe, and with it immediately struck Brown a severe blow upon the head. Brown then withdrew from the premises; and, on the next morning, applied to Edward Hinaman, Esquire, a magistrate of the county, for a warrant to apprehend George Hood for the assault; but, not being at that time acquainted with his Christian name, the warrant, so far as it related to the name and description of the person committing the assault, was in the following terms; viz. "To take the body of

Hood

(leaving a blank for the Christian name) of the hamlet of Bemerton, in the parish of Fugglestone St. Peter in the same county, by whatsoever name he may be called or known, the son of Samuel Hood, to answer, &c., on the oath of Francis Brown, an officer of the sheriff of the county of Wilts, for assaulting him in the execution of his duty."

This warrant, so applied for and obtained by Francis Brown, was on Saturday, the 15th of May, delivered to Edward Dowding, the tithing man for the hundred of Ludhampton, with directions to apprehend George Hood for this assault. Dowding, accordingly, went, on the same day, to the house of Samuel Hood, accompanied by Francis Brown, John Staple, John Andrews, and several other persons, whom he had called upon in the King's name to aid and assist him in the execution of his duty. When they arrived at the house, Dowding, having his constable's staff and the warrant in his hand, knocked at the outer

1830.

Hoop's Case.

1830.

HOOD's Case.

door several times, demanding admission, but without
obtaining it. George Hood and his mother appeared
at a window which was open above stairs, when
Brown pointed out George Hood to Dowding as the
person on whom the warrant was to be executed;
Dowding told George Hood that he had a warrant to
apprehend him for an assault, and that if he refused
to come down and surrender himself he must make a
forcible entry. Dowding then read the warrant,
whilst George Hood and his mother remained at the
window, loud enough (to use the expression of the
witness) for all the inmates of the house to hear it.
Dowding and his assistants then proceeded to force
the door; and having opened it to the extent of seven
or eight inches, a chain preventing a wider opening,
a naked sword, a sword stick and a fork with three
prongs, like a dung fork, were thrust backwards and
forwards through the opening repeatedly. Samuel
Hood, the father, had the fork in his hand; and was
seen, before the door was completely forced, to throw
it at John Andrews, from the back of whose neck it
was extracted. When the door was forced, the chain
being broken, the three prisoners were standing in
the passage fronting it. John with the naked sword,
and George with the sword stick in his hand, and
Samuel without any weapon, he having thrown the fork
at Andrews. Upon Dowding and Staple entering the
passage, George ran up stairs, exclaiming at the foot
of them as he was ascending, followed by Staple, -
"Damn your eyes, if you come here, I'll murder
you:" and, whilst in the act of ascending them,
stabbed Staple with the sword stick in his right side.
The instrument penetrated the chest between the
seventh and eighth ribs, and wounded the lungs
severely. A surgeon was immediately called to his
assistance, who thought him, at first, in a dying state.

-

He continued in imminent danger for four days, after which he gradually recovered.

At the time when Staple was stabbed by George Hood, John Hood was standing, with the sword in his hand, in the doorway of the parlour at the foot of the staircase, and Samuel was in the parlour within view of them.

When Dowding was called upon to produce the warrant, he stated that he had lost it in the affray. That he had it in his hand when he read it under the window; and that he never saw it afterwards. That he searched his pocket for it, as he was carrying Samuel Hood to prison, after he had advanced about a mile and a half from the house at Bemerton, on his way to the county gaol; but could not find it. And that he directed a boy to look carefully for it, on the road between the house of Samuel Hood at Bemerton and the place where he first missed it; and the boy swore that he had made a careful search, but without finding it.

The counsel for the prisoners insisted, that as notice to produce the warrant had not been given to the prisoners, and as it was not proved that the house of Samuel Hood had been searched for it, secondary evidence of its contents ought not to be received; but the learned JUDGE thought otherwise, and oyerruled the objection.

It was then contended by the counsel for the prisoners, that they were entitled to an acquittal, assuming the contents of the warrant to have been correctly stated, inasmuch, as the Christian name of George Hood was omitted, that therefore it was an illegal warrant for want of a more specific designation of the person for whom it was intended, and would not justify the apprehension and detainer of the pri

1830.

HOOD's Case.