Slike strani


SCOPE OF TERM inconsistent with itself. The statutory words imply no question as to motive, It is possible to suppose a case in which the motive might be good. If a pregnant woman be in fear that her mother or others would destroy the child to save the credit of the family, and therefore do not disclose, she is still liable to punishment. The law declines to enter into the question whether the motive was good or not. And if the motive of the revelation be bad, it is still a revelation, nor does it follow that its result will not be to aid in securing the safety of the child. Why, then, should the law be in this case stretched beyond its express words against the accused, when in the former case they could not be stretched in her favour? Further, if this theory were sound, the offence would necessarily be capable of accession, although it has been found that in libels for this crime, the charge of guilt as "art and part" is properly omitted, the nature of the offence being inconsistent with the idea. of accession (1). Hume declares that the Act does not admit of a charge of art and part, and says:— "The statute, in its whole strain and context, has "immediate relation to the mother alone, who, by the

[ocr errors]


very nature of the charge, is stated as the one person in the world that is conscious of the birth" (2). And Alison thus states the same rule :"any other person has been privy to the design, the "statute is elided by that very circumstance" (3). It is thought, on these grounds, that whatever may be the purpose of a revelation, and however much criminality it may involve, the disclosure prevents her case from falling within the statute, and that the motive cannot make the fact less relevant in defence against the statutory charge.

[ocr errors]

1 Alison Punton, H. C., Nov. 5th 1841; 2 Swin. 572 and Bell's Notes

2 Hume i. 299.

3 Alison i. 158.

[ocr errors]


The words, "during the whole period of her WHOLE PERIOD pregnancy," do not imply that the pregnancy must have continued for the full period of nine months (1).

full grown not

The prosecutor is not bound to prove this and the Proof that child relevancy of the charge cannot be affected by the fact needed. being otherwise (2). All that is necessary is that there should be such proof of duration of pregnancy as made a living birth possible (3). It is, of course, a strong point in the woman's favour if she can establish that her labour was premature, and is good evidence to go to the jury, whether as direct evidence, or with a view to a recommendation to leniency, especially if there be proof that some accident was the cause of the labour (4). For the same obstinacy cannot be presumed where the labour has come on at an early period, because it might reasonably be believed not to be actual labour up to the very last moment. If the child be full-grown, mere proof of STATE OF CHILD its being still-born cannot free from the statutory still-born is no charge, as the child may have been still-born, in con

1 Hume i. 297.

2 Elizabeth Brown, H.C., March 16th 1837; 1 Swin. 482 and Bell's Notes 80.-Alison Punton, H.C., Nov. 5th 1841; 2 Swin. 572 and Bell's Notes 80.

3 Hume i. 298.-Alison i. 153, 154.-It might at first sight appear that the case of Margaret Fallon, Perth, April 8th 1867; 5 Irv. 367 and 39 S. J. 387 and 4 S.L.R. 1, militated against the doctrine above stated. It would rather appear, however, from the Jurist Report, that the case turned upon the failure to produce the best evidence to prove the necessary duration of pregnancy, than upon want of evidence of the full period of nine months.

4 In the case of Mary Sinclair, Glasgow, Oct. 2, 1847, where the accused pled guilty, it was

stated in mitigation of punish-
ment that she had not reached her
full time, and the sentence was
limited to six months' imprison-
ment. Lord Justice-Clerk Hope's
MSS. In the case of Margaret
Murdoch, Dumfries, April 12th
1859, the medical evidence proved
that the child was born in the
8th month. It was objected that
there was no case to go to the
jury. Lord Ivory's MSS. contain
the following note :-"Lord Cowan
"and I expressed opinions, on
"hearing which the Advocate-
"Depute withdrew the case." It
does not appear from this that the
objection was of itself held good,
but it indicates that the fact of a
premature birth is an important
element in favour of the woman in
such a case.



STATE OF CHILD Sequence of the accused's failure to reveal her condi


tion, or to call for and use assistance (1). If the accused can prove that that which she brought forth was not "a child," but an abortion or a fatus, which, from some accident, was in such a condition that, though there had been assistance, it could not have been in a condition to be called "a child," then the case is out of the statute; for the birth of a "child," whether dead or alive, is essential (2).


Child must be dead or missing.



Besides concealment, there must be a failure to call for and use help in the birth. If at the last moment the woman call for and use help, she is not guilty. The question whether she has done so or not is one of circumstances (3).

The concealment must continue down to the death of the child, unless it be missing, in which case, the death cannot be proved. If the child be shewn alive by the mother to others, then though death ensue, there is no crime (4). The child is neither "found "dead" nor is it "amissing."

The punishment is imprisonment, not exceeding two years.


To cause or procure abortion, whether by drugs (5) or by instruments (6) is a crime. There must be Intent must be felonious intent, for it may be necessary to cause abor

felonious. Woman may be art and part.

tion. The woman herself may be guilty, if she be aware of the purpose for which the drug is adminis

1 Hume i. 298.-Alison i. 154, 155.-Alison Punton, H.C., Nov. 5th 1841; 2 Swin. 572 (Lord JusticeClerk Hope's charge).

2 Hume i. 297.

3 Hume i. 297.- Alison i. 157.
4 Humei. 296.-Alison i. 156, 157.
5 Hume 1. 186, and case of Ro-

bertson and Kempt there.-Alison i. 629, and case of Munn there.More ii. 373.

6 Hume i. 187, case of Robertson and Bachelor in Note 1,-Alison i. 628, case of Aitken there.-Will. Reid, H.C., Nov. 10th and 11th 1858; 3 Irv. 235.


tered or the instrument used (1.) Drugging or operating PROCURING to procure obortion is criminal, though unsuccessful (2). Attempt. Whether the woman alone can be charged with taking drugs to procure abortion has not been decided. A Can woman be charge of this sort was withdrawn after a debate on relevancy, but the report does not state whether the withdrawal was on general or special grounds (3). There seems no reason in principle why such a charge should not be held relevant.

charged with attempt.

The punishment is either penal servitude or im- PUNISHMENT. prisonment.



Blow or shot

Every attack upon the person of another is an SCOPE OF TERM assault, whether it injure or not. Even spitting upon spitting. another intentionally is assault (4). Nor need the act which does not done take effect. It is assault to shoot, or aim a vio- take effect. lent blow, at another, though he remain untouched (5). Assault be indirect, as by hounding a dog on may another, or even by flogging the horse another is riding, so as to make it run off (6), or violently stopping the horse which a person is riding or driving (7). Cases may occur where the malignity of an assault is not to be measured by the mere physical act done by the accused, as, for example, where by a slight push a Pushing person person is thrown off a railway train, or over a steep

off train.

[merged small][merged small][merged small][merged small][ocr errors][merged small]

Indirect assaults.



place (1). Even menace of violence may be assault, as by presenting a gun or pistol at another (2), though the trigger be not drawn (3), or the gun be not cocked (4) or loaded, unless this was known to the Violent gestures. person attacked (5). Gestures threatening violence so great as to put another in bodily fear, whether accompanied by words of menace or not, constitute assault (6). Mere words not That threatening language was used may be an element in estimating how far the fear of the person attacked was reasonable; but mere words cannot constitute an assault.

an assault.

Evil intent of the

Evil intention being of the essence of assault, it essence of assault. differs from culpable homicide in so far as injuries happening from carelessness, however culpable, are not assaults. Nor is it assault if some act of mischief, not directed against the person of any one, causes injury to another of whose presence the perpetrator of the mischief was not aware (7).


justify, but may
Blows justify if

No provocation by words spoken or written can Words cannot justify (8), though it may palliate assault (9). Provocation by blows will justify an assault if the retaliation be not excessive (10), but any cruel excess in retaliation



1 Peter Leys, H.C., March 12th 1839; 2 Swin. 337 and Bell's Notes 88.

2 Rob. Dewar and others, Glasgow, May 4th 1842; 1 Broun 233 and Bell's Notes 89.

3 Alison i. 175, and case of the Procurator-fiscal of Edinburgh v. Hog there.-Moore ii. 374.

4 Rob. Charlton, Jan. 29th 1831; referred to in Earl of Mar's case, Bell's Notes 89.

5 Hume i. 443, case of Alexander there. Walter Morison, Glasgow, Sept. 19th 1842; 1 Broun 394 and Bell's Notes 89 (Lord Cockburn's charge).

6 John Irving, Ayr, Sept. 1833; Bell's Notes 88.

7 David Keay, Stirling, Sept.

16th 1837; 1 Swin. 543 (Lord Moncreiff's opinion) -John Roy, Stirling, Sept. 14th 1839; Bell's Notes 88 (glass maliciously broken cutting person).

8 Hume i. 333, cases of Home: and Storie there, and cases of Skinner Douglas: Hamilton: and Macpherson in note 2.-Alison i. 176.

9 Hume i. 334, and case of Lockhart there, and case of Monro and others in note 2.

10 Hume i. 334, and cases of Murray Forbes Haliburton: Campbell Higgins: Conhoun and Buntine Dundas: Anderson: Seton : and Macindassanach there.-i. 335, and case of M'Culloch and others in note 1.-Alison i. 177.

« PrejšnjaNaprej »