페이지 이미지
PDF
ePub

REG.

DEE.

1884.

woman

- Consent

If not guilty of the crime of rape he was not guilty of an assault. The accused was guilty of the felonious assault on this woman, Ljust as much as a man coming behind another and stunning him

with a blow before he was aware even of his presence would be Married guilty of an assault causing actual bodily harm. Mr. Barton has

-Car- also ingeniously argued that the questions put to the jury, and nal connection the answers given, do not, per se, warrant a conviction; that, in obtained by

fact, there is some omission or miscarriage in the mode in which fraud. the case was placed before the jury. Looking at what appears in

the case before me, I think all that should appear to warrant the
conviction does appear. The only question that was raised at the
trial was, whether the woman consented to the act, knowing that
it was the accused who came into her bed, or did she consent
under the belief that it was her husband. The jury found the latter
to be the truth, and the Lord Chief Justice then told them
ought to find a verdict of "guilty, and reserved question for this
court” as stated. We are, I believe, all of opinion that the true
law is, that a man who has had connection with the wife of another,
having obtained her submission or consent to the act by causing
her by fraud to believe that he was her husband, is guilty of the
crime of rape, and being of this opinion we are bound in this court
so to declare the law in opposition to the decision in Reg. v. Barrow.

Solicitor for the Crown, G. Bolton.
Solicitor for the prisoner, O'Donoghue.

QUEEN'S BENCH DIVISION.

Monday, June 16, 1884.
(Before MATHEW and Day, JJ.)

HUNTER V. JOHNSON. (a)
Elementary Education Acts 1870 (33 &. 34 Vict. c. 75) and 1876

(39 & 40 Vict. c. 79)-Power to impose home lessons-Detention

of child at school after school hours. The master of a board school established under the Elementary

Education Acts 1870 and 1876 is not authorised by those Acts in setting lessons to be prepared at home by children attending such school, and the detention of a child at school after school hours for not doing home lessons amounts to a criminal assault. 'HIS was a case stated by the justices of the borough of

Bradford under 20 & 21 Vict. c. 43.

THIS

(a) Roported by DUNLOP EnLl, Esq., Barrister-at-Law.

HUNTER

1. JOHNSON,

1884.

Education

1. The appellant was a child ten years of age, residing with his mother, a widow, at Tyersal, near Bradford. The respondent was head master of the mixed department of the Tyersal board school. 2. The said school was one of the schools of the Bradford

Elementary School Board, formed under the Elementary Education Act 1870 and amending Acts. The appellant attended the mixed depart. Acts Power inent of the said school.

to impose home

lessons. 3. On and for some time previous to the 20th day of September, 1883, the school hours of the Bradford School Board open for the instruction of children of a similar age to the appellant were from 9 a.m. to 12 noon, and from 2 p.m. to 4.30 p.m. during five days a week.

4. It had been the practice, in compliance with direetions of the said school board, for some time previous to the said 20th day of September, 1883, for the teachers of the different schools belonging to the board to set or give the children attending the schools home lessons ;that is, scholastic work, exercises, and recapitulatory lessons, to do at their respective homes out of and beyond the school hours mentioned in the last preceding paragraph.

5. Previous to the 20th day of September, 1883, the mother of the appellant forbade him to learn or do "home lessons," and notice thereof in the following form was served on the respondent:

Sir,- I beg to inform you that I have forbidden my child to do any more home lessons, and consequently request you not to set any more in future.--Yours respectfully, E. UUNTER.

6. On attending school on the 20th day of September, 1883, the appellant, in obedience to his mother's commands, had not learnt or done the home lessons given him on the previous day, and he was kept in and prevented from leaving the school after the regular school hours for three-quarters of an hour by the respondent, and made to learn or do the home lessons. He was not kept in for any other reason or purpose.

On the 26th day of September, 1883, an information was duly laid on behalf of the appellant before one of Her Majesty's justices of the peace in and for the said borough, that the respondent on the 20th day of September, 1883, did within the borough aforesaid commit a common assault on the said Dick Hunter, contrary to the statute in that case made and provided.

A summons was duly issaed on the said information, and the said information was heard before us, Thomas Adam Watson, Esq., Robert Kell, Esq., and Isaac Smith, Esq., three of the justices in and for the said borough, on the 6th day of October, 1883. Counsel for the appellant contended that, in face of the express notice and command of the mother, the giving and enforcing of "home lessons” to and against the appellant were illegal, and that a false imprisonment, and hence a common assault, had been committed on the appellant. The solicitor for the respondent contended that, assuming for the sake of argu

HUNTER

JOHNSON.

1884.

lessons,

ment that the respondent had no legal power to keep in the appellant for not having learnt or done "home lessons,” yet no assault punishable by the criminal law had been committed.

The justices dismissed the summons, holding that no assault

punishable by the criminal law had been committed. The case Elementary Education having been decided on this ground, the justices gave no opinion Acts Puwer or decision with regard to the legality or otherwise of enforcing tu impose home or home lessons."

The appellant contended that the justices should have convicted the respondent, but the respondent contended that the justices ought not in the event stated to have convicted the respondent of an assault punishable by the criminal law.

The question for the court is : Had the respondent under tho facts stated any legal power to keep in the appellant for not doing “home lessons ?

If the court be of a negative opinion, then, Ought the justices to have convicted the respondent for an assault punishable by the criminal law ?

If the court be of opinion that the justices ought to have con-
victed the respondent, the case is to be remitted to us the said
justices that a conviction may be entered.
Given under our hands this 22nd day of May, 1881.

THOMAS A. WATSON.
ROBERT KELL.

I. Smith.
By sect. 74 of the Education Act, 1870, every school board is
empowered to make bye-laws for (inter alia) (1) requiring the
parents of children between the ages of five and thirteen to
cause such children to attend school, and (2) for determining the
time during which the children are to attend school. Certain
immunities from attendance at school are conferred upon children
employed in labour.

T'he Bradford School Board made the following bye-law : The time during which every child shall attend school shall be the whole time for which the school selected shall be open for the instruction of children of similar age, including the day fixed by Her Majesty's Inspector for his annual visit.

Sidney Woolf for the appellant. The question here is, whether the Elementary Education Acts, or the bye-laws made under them, give to school boards the authority to impose upon children home lessons, and to detain them in school after school hours if they are not learnt. The 74th section of the Elementary Education Act 1870 empowers the School Board to make bye-laws fixing the time during which the children are to attend school. On reference to the Education Act of 1876 it is clear a child can only be made to attend school during the time the school is open. The bye-laws having determined the hours during which the Tyersal board school should be kept open, the respondent clearly exceeded his powers in imposing home lessons and in detaining the appellant in school after the school hours were over. With

HUNTER

as

1884.

.

regard to the second question put by the justices, it is contended that an assault had been committed by the respondent. An

JOHNSON. assault is defined in Stephen's Digest of the Criminal Law, p. 162,

“the act of depriving another of his liberty without the consent of the person assaulted, or with such consent if it is obtained

Elementary by fraud.” He also referred to 1 Russell on Crimes, 5th edit., Education p. 60; and Bird v. Jones (7 Q. B. 742). The order imposing Acts Power the home lessons and the detention of the appellant were both to impose home illegal acts, and the respondent ought therefore to have been convicted.

MATHEW, J.-I am of opinion that neither the Elementary Education Acts nor the bye-laws give any authority to the School Board authorities to impose upon children the duty of learning home lessons. The Acts must be construed strictly, inasmuch as they are a statutory interference with the liberty of the subject. After looking carefully at the Acts I am unable to find any power conferred upon the school authorities such as has been assumed by the respondent. A punishment was imposed upon the appellant for disobedience to an order which, as it seems to me, the respondent had no power to make. Having regard to the express protest of the mother and to the fact that the appellant was detained against his will, I think that an assault in law was committed, and that the respondent ought to have been convicted, but that the fine ought to be merely nominal. With this opinion the case must be remitted to the justices. Day, J.-I am of the same opinion.

Appeal allowed. Solicitors for the appellant, Indermaur and Brown, for R. Newton Rhodes, Bradford.

QUEEN'S BENCH DIVISION.

Dec. 1 and 2, 1884.

(Before GROVE and HAWKINS, JJ.)

RIDGWAY (app.) v. WARD (resp.) (a)
Bread, sale ofBaker not provided with scales and weights-

Delivery of bread from a cart at a customer's house in pursuance

of a previous order—6 & 7 Will. 4, c. 37, 8. 7.
By 6 & 7 Will. 4, c. 37, s. 7, Every baker or seller of bread

who shall convey or carry out bread for sale in and
(a) Reported H. D.

EY, Esq., Barrister-at-Law.

RIDGWAY

WARD.

.

1884.

deliver any

- Baker not

scales.

from any cart or other carriage shall be provided with and shall constantly carry in such cart or other carriage a correct beam and scales, with proper weights

and in case any such baker or seller of bread

shall at any time carry out or

bread without being provided with such beam and Sale of bread scales, with proper weights

then, and in every such provided with case, every such baker or seller of bread shall for every such

offence, forfeit and pay any sum not exceeding five pounds.Heid, that this section applies to cases where bread is delivered in

pursuance of a previous order, and not merely to cases where the

baker sends out bread for sale in a cart. CASE

ASE stated by justices.

1. The appellant was convicted before us at a Petty Sessions held at Cheadle on the 23rd day of May, 1884, on an information which charged " that he being a baker of bread carrying on business at Longton, on the 10th day of April, 1881, at the parish of Draycott, did unlawfully cause his servant to carry out and deliver bread from a cart without being provided with a correct beam and scales, with proper weights, contrary to 6 & 7 Will. 4, c. 37, s. 7.

2. The following facts were proved before us :

(1.) The appellant, George Ridgway, is a grocer, provision dealer, and baker, carrying on business amongst other places at a shop in Longton. On the 10th day of April, 1884, the appellant's manager caused his servant, one Bernard Swainey, to take and deliver to Miss Ratcliffe, a customer who resided at Draycott, which was some miles distant from the shop of the said George Ridgway at Longton, amongst certain articles of grocery, a quartern loaf of bread from a cart, not at the time being provided with weights and scales mentioned in the 6th and 7th sections of the Act.

(2.) The appellant's traveller had called at Miss Ratcliffe's house on the 9th day of April, 1884, and had taken from her an order for a quartern loaf of bread at the price of 5d., and certain articles of grocery which were together under the value of 101.

(3.) The order so given by Miss Ratcliffe was entered in a book by the appellant's traveller at the time, and was on the same day given by him to the manager of the appellant's shop at Longton to make up.

(4.) The goods ordered by the customer of the traveller, including the quartern loaf of bread, were selected and appropriated by the manager on the 10th day of April, 1884. The loaf was, immediately prior to being placed with the remainder of the goods set apart for the customer, weighed by the manager, and found to be of the required weight of 41b.

(5.) The goods so ordered were delivered by Bernard Swainey, a servant of the appellant, to Miss Ratcliffe, on the 10th day of

« 이전계속 »