who make the preliminary arrangements for a prize-fight and all persons present at it who urge on and encourage the combatants are also guilty of a misdemeanour; but not a man who is accidentally present and merely stops to look on.1

So far we have dealt with assault and battery as known to the common law. But the jurisdiction of our criminal Courts in such matters has been largely extended by several statutes, which have created a considerable variety of special kinds of assaults, some of which are punishable on indictment and others summarily by magistrates. The common law, as we have seen, drew a sharp distinction between an assault and a battery. But in these statutory provisions the distinction. disappears and the word "assault" takes a wider meaning so as to include what was at common law termed a battery. We can only deal very briefly with these statutory assaults.

2

1. Wounding or causing grievous bodily harm, or shooting at any person, or by drawing a trigger or in any other manner attempting to discharge any kind of loaded arms at any person, with intent to maim, disfigure, disable or do some other grievous bodily harm, is a felony punishable with penal servitude for life. To amount to "grievous bodily harm" the injury must be such as seriously to interfere with the health and comfort of the person injured, though it need not involve any risk to life. After proof of such injury the prosecution must also establish the special intent, which is set out in the indictment. If it fails to do this, the prisoner cannot be convicted of felony; but where the indictment alleges wounding, and the jury negative the special intent, he can be convicted of the misdemeanour of unlawfully wounding. The word "maim" has a special meaning; it denotes any bodily harm whereby a man is deprived of the use of any member of his body, which he can use in fighting, such as a leg, arm, hand or eye, or by the loss of which he is permanently weakened. To "disfigure" is a wider term; many

3

1 R. v. Murphy (1833), 6 C. & P. 103; R. v. Coney (1882), 8 Q. B. D. 534. 2 24 & 25 Vict. c. 100, s. 18; R. v. Duckworth, [1892] 2 Q. B. 83; R. v. Linneker, [1906] 2 K. B. 99.

8 All four intents can now be charged alternatively in the same count of the indictment Indictments Act, 1915, rule 5 (1), and see indictment, No. 32, in the Appendix. 4 See 14 & 15 Vict. c. 19, s. 5; R. v. Miller (1879), 14 Cox, 356.

For a man to maim himself so as to render himself unfit for military service is a

an injury which is not a maim may yet be a disfigurement, e.g., to cut off a man's nose. To "disable" means to cause permanent disablement.

2. An assault committed with intent to rob is a statutory felony punishable with penal servitude for five years. On a charge of robbery the prisoner can be convicted of this offence. But a prisoner charged with this offence cannot be convicted of a common assault.

3. To unlawfully and maliciously wound, or to inflict, either with or without any weapon, any grievous bodily harm upon, any other person is a misdemeanour punishable with penal servitude for five years. Any incision, which pierces both skins of the victim's body, is a "wound;" we have already defined "grievous bodily harm." bodily harm." On an indictment under this section it is not necessary for the prosecution to prove any special intent as it is in cases of felony under section 18 above. But the jury must find that the prisoner acted unlawfully and maliciously. The word "maliciously " has a very wide meaning. It is not necessary to prove that the prisoner had any spite or ill-will against the person injured or even that he intended to wound or inflict grievous bodily harm on that particular person. He will be deemed to have acted maliciously if he knew or ought to have known that the act which he intended to do would injure any one.

Where a soldier, in striking at a man with a belt, accidentally wounded a woman who was standing beside him, it was held that he was guilty of unlawfully and maliciously wounding her. The facts that he had no intention whatever of striking her, and had no reasonable cause to expect that she would be struck, were held to be immaterial.3

Where A. was out in a punt on a creek shooting wild fowl, and seeing B. in pursuit of wild fowl on the same creek, fired in the direction of B. with the intention merely of frightening him away, but owing to B.'s punt suddenly slewing round he was seriously wounded, it was held that A. was rightly convicted of unlawfully and maliciously wounding B., although he had no intention whatever of doing him any bodily harm.*

misdemeanour. This and an attempt to commit suicide are the only cases in which a man can be convicted at common law of a misdemeanour committed upon himself: Co. Litt. 127 a; 1 Hawk. P. C., 7th ed., 626.

1 Larceny Act, 1916 (6 & 7 Geo. V. c. 50), s. 23 (3); and see Robbery, post, p. 331. 224 & 25 Vict. c. 100, s. 20. On an indictment under this section the prisoner can be convicted of an assault: R. v. Taylor (1869), L. R. 1 C. C. R. 194.

indictment in the Appendix, No. 32.

3 R. v. Latimer (1886), 17 Q. B. D. 859.

4 R. v. Ward (1872), L. R. 1 C. C. R. 356. B.C.L.

21

See the

Shortly before the conclusion of a performance at a theatre the prisoner, with the intention of causing terror in the minds of persons leaving the theatre, extinguished the gaslights on a staircase which a large number of persons would have to descend, and placed an iron bar across a doorway at the foot of the staircase so as to obstruct the exit. On finding the lights suddenly extinguished a large portion of the audience were seized with panic and rushed down the staircase, where the pressure of those behind forced those in front against the iron bar, with the result that many were injured. It was held by the Court for Crown Cases Reserved that the prisoner was rightly convicted of unlawfully and maliciously wounding.

Where a wife, to escape from the violence of her husband, who had threatened to take her life, got out of a window and in so doing fell and broke her leg, it was held that the husband was properly convicted under section 20.2

4. An assault occasioning actual bodily harm is a misdemeanour punishable with penal servitude for five years. Here it is unnecessary for the prosecution to prove that the prisoner acted maliciously or with any special intent; it is enough that he has inflicted "actual bodily harm." This phrase denotes a less degree of harm than "grievous bodily harm." Any injury calculated to interfere with the health or comfort of the person injured is actual bodily harm, though it be only of a merely temporary character.

5. To assault any person with intent to commit felony is a misdemeanour punishable with imprisonment for two years." On an indictment for this offence the prisoner can be convicted of a common assault.

6. It is also a misdemeanour punishable on indictment with imprisonment for two years for any one to assault or obstruct any of the following officers or persons—

4

(a) a police constable in the execution of his duty; (b) a clergyman or minister when officiating, or about to officiate, at any religious service; 5

(c) a magistrate or officer engaged in preserving a vessel in distress or any goods cast up on shore from a wreck;" (d) a poor law officer or any person acting in his aid.'

1 R. v. Martin (1881), 8 Q. B. D. 54.

2 R. v. Halliday (1889), 61 L. T. 699.

3 24 & 25 Vict. c. 100, s. 47.

4 Ib. s. 38.

5 lb. s. 36.

6 lb. s. 37.

7 13 & 14 Vict. c. 101, s. 9; 14 & 15 Vict. c. 105, s. 18.

may

In addition to the grave assaults mentioned above, which are triable on indictment at the Assizes or Quarter Sessions, the Legislature has given to justices of the peace wide powers of dealing with less serious assaults. In some cases the same offence be dealt with either summarily or by way of indictment. Thus, to assault or obstruct a police officer in the execution of his duty has, as we have seen, been indictable since the year 1861; but many recent statutes have enabled magistrates to deal summarily with the same offence and sentence the offender to a term of imprisonment not exceeding six months or to impose a fine not exceeding £20.1

Again, an assault on any female or on any boy under fourteen, which is of such an aggravated nature that, in the opinion of the justices, it cannot be sufficiently punished under the provisions as to common assaults, is called an aggravated assault. This offence is triable summarily either upon the complaint of the party aggrieved or otherwise, and the accused on conviction may be fined £20 (including costs) or sent to prison for six months. But he may elect to be tried on indictment, and he may then be sentenced to one year's imprisonment."

2

4

If a husband be convicted on indictment of any assault, or summarily of an aggravated assault, on his wife and be sentenced to a fine of more than £5 or to imprisonment for a term exceeding two months, the Court or magistrate can grant her a separation order, which will have the force and effect of a decree of judicial separation, and may also give to the wife the legal custody of the children of the marriage while under the age of sixteen, and order the husband to pay her a sum not exceeding £2 a week for maintenance.

Lastly, any common assault may be dealt with summarily, and here the procedure more nearly approaches the trial of a civil action. For in the first place, the proceedings can only

1 See, for instance, 34 & 35 Vict. c. 112, s. 12, and 45 & 46 Vict. c. 50, s. 195.

2 24 & 25 Vict. c. 100, s. 43.

342 & 43 Vict. c. 49, s. 17.

For an instance in which a judge of assize exercised this power, see R. v.

Knowles (1901), 65 J. P. 27.

558 & 59 Vict. c. 39, s. 4.

be instituted "by or on behalf of the party aggrieved; "1 though if the party aggrieved is unable from idiocy, infaney or any other cause to make complaint, it may be made by a friend acting on his behalf. Again, the magistrates have power to award compensation to the party aggrieved so as to obviate the necessity for any subsequent civil proceeding.? Nevertheless, the proceedings are in their essence criminal, for the magistrates can on conviction sentence the defendant to imprisonment with or without hard labour for two months, or impose a fine not exceeding £5, or order him to enter into recognizances to keep the peace and in either case to pay the costs of the proceeding. There are, however, two kinds of assaults which cannot be dealt with summarily by magistrates but which must be tried on indictment, viz., an assault in which any question arises as to the title to land or as to any bankruptcy or insolvency, and an assault which is accompanied by an attempt to commit a felony."

An assault is both a tort and a crime. Hence the person assaulted may either prosecute or bring a civil action, or do both. But a criminal Court will not pass judgment while a civil action is pending. If, however, summary proceedings are taken before a magistrate, and the defendant either pays the penalty or suffers the imprisonment imposed on him, he is released from all further proceedings either civil or criminal for the same cause." But it is only the person who is actually convicted that is released; and so where servant was convicted of an assault committed in the course of his master's employment, it was held that such conviction did not release the master from liability to an action for damages for such assault. Moreover, after hearing a case of common assault on the merits, the justices must, on demand, grant the accused a certificate that he was either convicted or acquitted; and that certificate is a bar to any subsequent civil or criminal proceeding (except a prosecution for murder

1 24 & 25 Vict. c. 100, s. 42.

Probation of Offenders Act, 1907 (7 Edw. VII. c. 17), s. 1.

3 24 & 25 Vict. c. 100, s. 46.

4 R. v. O'Gorman Mahon (1836), 4 A. & E. 575.

24 & 25 Vict. c. 100, s. 45.

Dyer v. Munday, [1895] 1 Q. B. 742.