quence of his throwing the stone was that it might break the glass window, on the principle that a man must be taken to intend what was the natural and probable consequence of his acts. But the jury have not found that the prisoner threw the stone, knowing that, on the other side of the men he was throwing at, there was a glass window and that he was reckless as to whether he did or did not break the window. On the contrary, they have found that he did not intend to break the window. I think, therefore, that the conviction must be quashed.

PIGOTT, B. I am of the same opinion.

LUSH, J. I also think that on this finding of the jury we have no alternative but to hold that the conviction must be quashed. The word "maliciously" means an act done either actually or constructively with a malicious intention. They might have found that he did intend actually to break the window or constructively to do so, as that he knew that the stone might probably break it when he threw it. But they have not so found. CLEASBY, B., concurred. Conviction quashed.

Remote Cause.

§ 271. Attempt to Murder Where a woman jumps out of a window for the purpose of avoiding the violence of her husband and sustains dangerous bodily injury, the husband not intending to make her jump out, he is not guilty of an attempt to murder.1

§ 272. Attempts-United States Courts-Punishability.

There is no law

of the United States for the punishment of the crime of an attempt to commit murder upon land in places within the exclusive jurisdiction thereof, unless committed by some means other than an assault with a dangerous weapon, as by poison, drowning, and the like. In United States v. Williams, 2 DEADY, J., said: “On January 7, 1879, the grand jury for this district found an indictment against the defendant, containing two counts.

"The first one charges him with an attempt to commit the crime of murder by means not constituting an assault with a dangerous weapon,' by willfully and maliciously 'shooting one Edward Robert Roy' on October 8, 1879, with a loaded pistol, with intent him to murder, at Sitka, in the territory of Alaska. The second one charges him with an assault upon said Roy, at the time and place aforesaid, with a loaded pistol, with intent him to kill, and alleges that said territory of Alaska was then and there Indian territory. The defendant demurred to the indictment upon the ground that the facts stated did not constitute a crime. The court sustained the demurrer to the second count, holding that Alaska was not 'the Indian country' within the purview of section 21 of the act of March 27, 1854,3 defining the crime of an assault by a white person within such country with a deadly weapon, with intent to kill, and citing United States v. Seveloff, United States v. Carr,5 Waters v. Campbell. The demurrer to the second count was overruled pro forma, whereupon the defendant pleaded guilty thereto, and then moved in arrest of judgment for the cause stated in the demurrer. This count is based upon section 2 of the act of March 3, 1857,7 which provides,

1 R. v. Donovan, 4 Cox, 399 (1850).

26 Sawy. 245 (1880).

310 Stat. 270; R. S., sec. 2142.

42 Sawy. 311.

5 3 Id. 302.

• 4 Id. 121.

11 Stat. 250; Rev. Stats., sec. 5342.

in effect, that every person who, within any place or district of country under the exclusive jurisdiction of the United States, or upon the high seas, or other water within the admiralty jurisdiction thereof, and out of the jurisdiction of any particular State, attempts to commit murder, 'by any means not constituting the offense of assault with a dangerous weapon,' shall be punished, etc. Without doubt, Sitka, in Alaska, is a place under the exclusive jurisdiction of the United States, and not within the jurisdiction of any State. Therefore, it appearing from the indictment that the defendant was first brought within this district for trial, it follows that if the alleged assault is a violation of any law of the United States, the motion must be denied. The only provision in the statutes of the United States for punishing an attempt to commit murder or manslaughter on land is found in section 5342,' but for some reason the means used do not constitute 'the offense of assault with a dangerous weapon.' The punishment of an assault with a dangerous weapon, or with intent to perpe trate a felony, committed on the waters within the jurisdiction of the United States, and out of the jurisdiction of any particular State, was provided for in section 4 of the act of March 3, 1825,3 but not the attempt to commit murder or manslaughter, unless it was coincident with such assault. But an attempt to commit murder or manslaughter on land, or an assault there, by whatever means committed, was not punishable by any law of the United States until 1857, when, as has been stated, by section 2 of the act of March 3, of that year, it was declared that an attempt to commit murder or manslaughter, whether on land or water, should be punished as therein prescribed; provided, such attempt was not made by means of the assault mentioned in the act of 1825,* thus limiting the operations of the statute to attempts made by drowning, poisoning, or the like. And probably this was so provided upon the erroneous impression that the act of 1825 was applicable to assaults committed on land as well as water.

"But, however this may be, as a result of this patch-work legislation, it appears that there is no punishment provided for an assault with a dangerous weapon committed within the exclusive jurisdiction of the United States, if committed on land, even if such assault should involve, as it may, and did in this case, an attempt to commit murder. In the drawing of the indictment, an effort has been made to bring this case within the terms of section 5342,5 by an averment therein that the attempt to murder was made by means not constituting an assault with a dangerous weapon.' But this is necessarily avoided, and in effect rendered null by the very statement of the alleged commission of the alleged offense that the defendant attempted to commit murder by shooting Roy with a loaded pistol. Whether a particular weapon is a deadly or dangerous one, is generally a question of law. Sometimes, owing to the equivocal character of the instrument - —as a belaying pin- or the manner and circumstances of its use, the question becomes one of law and fact, to be determined by the jury under the direction of the court. But when it is practicable for the court to declare a particular weapon dangerous or not, it is its duty to do 80. A dangerous weapon is one likely to produce death or great bodily harm. A loaded pistol is not only a dangerous, but a deadly, weapon. The prime pur

1 Rev. Stats., sec. 730; U. S. v. Carr, supra, 304.

2 Supra.

4 Stat. 116; Rev. Stats., sec. 5346.

4 Supra.

5 Rev. Stats.

pose of its construction and use is to endanger and destroy life. This is a fact of such general notoriety that the court must take notice of it. It appears, then, from the indictment, notwithstanding the averment therein to the contrary, that the act alleged to be an attempt to commit murder was an assault with a dangerous weapon, and, therefore, not punishable by the statute. The motion in arrest of judgment must be allowed, and the defendant discharged. By this ruling the defendant will escape punishment for what appears to have been an atrocious crime, but the court can not inflict punishment where the law does not so provide. It is the duty of the Legislature to correct the omission or defect in the law, and it is to be hoped that the result in this case will attract the attention of Congress to the matter at an early day."

1 U. S. v. Small, 2 Curt. 242; U. S. v. Wilson, 1 Bald. 99.

Before Mr. Justice BURROUGH, Gloucester, 1826.

Omission-No Assault. One who has an idiot brother who is helpless, as an inmate in his house, and who omits to supply him with proper food and warmth, but keeps him in a dark room whereby he becomes sick and ill, is not guilty of an assault.

The first count of the indictment stated that the defendants, unlawfully and maliciously contriving and intending to hurt and injure one George Smith, being an idiot, and under the care, custody, and control of the said William Smith, Thomas Smith, and Sarah Smith, on the first day of January, 1825, and on divers other days, etc., with force and arms at, etc., in and upon the said George Smith, then and there being such idiot, and under the care, custody, and control of the said W. S., T. S., and S. S., as aforesaid, did make divers assaults, and the said W. S., T. S., and S. S., during all that time, at, etc., cruelly, unnecessarily, maliciously, and unlawfully did keep, confine and imprison the said George Smith, so being an idiot, and under the care, custody, and control of the said W. S., T. S., and S. S., in a certain dark, cold, and unwholesome room, part and parcel of a certain dwelling-house in the parish, etc., and during all that time, did cruelly, unnecessarily, maliciously, and unlawfully neglect and refuse to give and administer, or permit to be given and administered to him, the said George Smith, being so imprisoned and confined as aforesaid, sufficient meat, drink, victuals, clothes, and other necessaries proper and requisite for the sustenance, support, maintenance, and clothing of the body of him, the said George Smith, and did then and there keep the said George Smith, without sufficient and proper air, warmth, and exercise, necessary for the health of the said George Smith; by means of which said confine

ment and imprisonment, and also for want of such sufficient meat, drink, victuals, clothes, and other necessaries, warmth, air, and exercise, as were proper and requisite for the sustenance and support, etc., of the said George Smith; he, the said George Smith, on, etc., at, etc., became, and was for a long time, to wit, etc., weak, sick, ill, etc., and other wrongs, etc., against the peace, etc. The second and third counts were similar, except that the former stated George Smith to be a "lunatic," and the latter, "a person of unsound intellect." The fourth, fifth, and sixth counts were precisely similar to the first, second and third, except that they stated George Smith to be "in the care, custody, and control of William Smith." The seventh, eighth, and ninth counts were like the fourth, fifth, and sixth, except that they omitted the allegation that George Smith was "in the care, custody, and control of William Smith," and did not state that he was in the care of any person. The tenth count was for a common assault. Plea- general issue.

Taunton, for the prosecution, opined, that he was not in a condition to prove an actual assault by beating, but he should show gross maltreatment; and it had been held, that exposure to the inclemency of the weather, and other ill-treatment of that sort, was sufficient to support an indictment for an assault; and he cited the case of Rex v. Ridley.1

From the evidence on the part of the prosecution, it appeared that George Smith, who was upwards of forty years of age, had always been an idiot, and had been bedridden for some years; and that his father, at his decease, had left him an annuity charged on his real property. The defendants were the brothers and sister of George Smith; and in consequence of some information, the Rev. W. D. Broughton, a magistrate, and other persons, went to the house of William Smith, in the month of January, 1826, and saw the other defendants; they asked to see the idiot, and were told by Sarah Smith, in the presence of Thomas Smith, that he was locked np, and that William Smith, who was absent, had the key. However, Mr. Broughton, and those who accompanied him, went upstairs, and on opening a door, which was not locked, they found George Smith on a bed of chaff, covered with a blanket and a

1 2 Camp. 650. In that case, the indictment was for willfully omitting to provide sufficient food, etc., for E. W., the said E. W., being a servant of the defendant, and for exposing the said E. W. to the inclemency of the weather. Lawrence, J., held, that the indictment, so far as regarded the omitting to provide sufficient food, etc., could not be supported, as it did not allege E. W. to be of tender years, and under the control and dominion of the defendant.

And his lordship cited a case which had been tried before Le Blanc, J., where a majority of the judges had been of that opinion; but Mr. Justice Lawrence said, that as to the exposure to the weather, that was an act in the nature of an assault, for which the defendant might be liable, whatever the age of the servant might be. How. ever, that part of the charge could not be made out in evidence.