retaliation. will prevent the person first attacked from maintaining PROVOCATION. the plea of provocation. Thus, if a person be struck Excessive with the fist, and in return stab or strike with a crowbar, or if in retaliating he continue beating the aggressor after he is disabled or the like, the provocation will at best only mitigate punishment (1). It Cases of spouses, will require evidence of extraordinary provocation to children. mitigate an assault by a husband on his wife (2). In the case of a son or daughter assaulting parents, very cruel ill-usage just beforehand would probably be a good defence (3). parents, and be recent. libel. tion. The provocation must be recent (4). What length Provocation must of interval will exclude it as a defence is not definitely fixed. Where there is a written and published libel Case of written or the like, it seems to have been held that several days may elapse between the publication and the assault, and the provocation be still held recent (5). Verbal provocation is only available if very recent. Verbal provocaProof has been allowed of provocation received in the morning, in defence of an assault committed in the evening (6). It may be doubted whether the rule will ever be extended further, if indeed it would not now be held to have been extended too far (7). But it is possible that if a special defence were lodged, setting forth that the party injured had subjected the accused to a serious of insults and attacks, the last of which was immediately before the assault, he might be allowed to go back a day or two in his proof, and 1 Hume i. 335, and cases of Charteris Adamson and Ogilvy and Haliburton there.-Alison i. 177. 2 Rob. D. Burnet, Dec. 8th 1834; Bell's Notes 91. 3 Hume i. 324, in reference to the statutory offence. - David Dow, Perth, April 16th 1830; Bell's Notes 87. Rob. M'Anally, Glasgow, April 27th 1836; 1 Swin. 210 and Bell's Notes 87, (Lord Mackenzie's charge). 4 Hume i. 336, and cases of Lockhart and Home and Justice there. -Alison i. 178, 179, and case of Ross there. 5 Geo. Cameron, Inverness, April 28th 1832; 5 Deas and Anderson 257. 6 Hume i. 336, case of Lockhart there. 7 Donald Stewart and others, Inverness, Sept. 14th 1837; 1 Swin. 540 and Bell's Notes 91. AGGRAVATIONS. AGGRAVATION OF INTENT. To kill. To do grievous harm. To ravish. thus strengthen the evidence of the provocation de recenti (1). Assault may be aggravated by its intent, or the mode of perpetration, or the injuries resulting, or the place where it is committed, or by its being committed on a person to assault whom is a specially heinous offence, or by the accused having been previously convicted of assault, or it may combine all or any of these elements of aggravation (2). I. Cases of aggravation by intent are— Intent to do grievous bodily harm (4). It is not decided whether this can be charged 1 See Hume i. 336, case of Home and Justice there. Here the proof was limited to two days. 2 In some cases previous malice 3 Hume i. 328, 329, and cases of descriptions, with this intent, are made capital by statute. Vide 144). 4 Certain assaults with this intent are made capital by statute. Vide 144. 5 Hume i. 308, case of Macward in note 1.-i. 309, and cases of Gray Charteris: Foulden: New. ton: Wilson and M'Keever there, and cases of Montgomery: and Jamieson in note*.-Alison i. 184 to 187, cases of Hosie: Scott: Crosbie : M'Gowans : Ingram : M'Lean: Wylie and Fraser there. 6 John M'Arthur, Glasgow, Sept. 8th 1830; Shaw 216 and Bell's Notes 84. In such a case Attempt to commit Rape " would be a better form of charge, no violence being necessary in rape of a child. 7 John Buchan, Nov. 25th 1833; Bell's Notes 84. Intent to gratify lewdness— AGGRAVATION OF INTENT. Whether upon women (1) or young persons, To gratify lewdeither girls (2) or boys (3), and whether ness. above or below puberty. Endeavouring to have connection with a woman who is asleep is an assault of this kind (4). Intent to carry off a person by force (5). Intent to rob (6). To abduct. To rob. Intent to compel the granting of a deed or obliga- To obtain deed. tion (7). Intent to intimidate employers or workmen, or in To intimidate. pursuance of any similar illegal combination (8). To extort con Intent to extort a confession from a prisoner (9). fession. MODE. II. Aggravations in the mode are of various kinds. AGGRAVATION OF Formerly it was common to charge the use of lethal Lethal weapon. weapons as an aggravation (11); but this has properly fallen into desuetude. The expression "lethal weapon is vague, as it may depend upon the hand that uses it whether a weapon be deadly or not. modes of assault are aggravated, viz. : 1 Geo. Thomson or Walker, Feb. 28th 1831: Bell's Notes, 86. 2 Peter Borrowman, July 3d 1837; Bell's Notes 86.-Will. Galloway, July 12th 1838; Bell's Notes 85.-Adam Johnston, H.C., July 26th 1844; 2 Broun 261, note.Rob. Philip, H.C., Nov. 2d 1855: 2 Irv. 243 and 28 S.J. 1. 3 David Brown, H.C., July 15th 1844; 2 Broun 261.-Andrew Lyall, Perth, April 26th 1853; 1 Irv. 218. 4 Will. Thomson, H.C., Oct. 28th 1872; 2 Couper 346 and 45 S.J. 19 and 10 S.L. R. 23. 5 Hume i. 329. Hume speaks only of carrying off a woman, but the same principle applies to the case of carrying off a voter or any The following other person. As to voters see 17 6 Hume i. 329.-Alison i. 188. 8 Hume i. 329, case of Steel in 9 Alex. Findlater and Jas. Macdougall, Glasgow, Jan. 9th 1841; 2 Swin. 527. 10 Geo. M'Lellan and others, H.C., Dec, 26th 1842; 1 Broun 478. 11 Alison i. 181, AGGRAVATION OF MODE. not be loaded (1st.) With Fire-arms (1).—This law does not ap Fire-arms need ply to loaded fire-arms only. If the person attacked be in the belief that the gun or pistol is loaded, it is no excuse that this was not so (2); and threatening is sufficient, though the muzzle be not pointed at the person (3). Nor pointed at the person. Stabbing or cutting. Throwing acids. AGGRAVATION Danger of life. Injury. Mutilation. Fracture. Effusion of blood. (2nd.) Stabbing or Cutting.--This is very commonly libelled as an aggravation (4). an aggravation (4). Whether it applies to the case of an instrument not adapted for cutting, such as a bottle, which may break when used as a weapon and produce cuts, has not been decided. Probably in such a case "cutting" or " wounding" would be held a proper description. (3d.) Throwing Acids.-Throwing at or applying to another a corrosive acid, calculated to burn or injure the human frame, whether it take effect or not, is an aggravated assault at common law (5). Actual injury resulting is an additional aggravation (6). III. Aggravations from the extent of the injury are (7) Danger of life; imminent ditto; great ditto. Effusion of blood; great ditto. 1 Alison i. 179, 180, cases of Lamond and Smith: Carson: Kean: and Robertson there.-i. 181, case of Corbet there. 2 Walter Morison, Glasgow, Sept. 19th 1842: 1 Broun 394 and Bell's Notes 89 (Lord Cockburn's charge). See also Rob. Dewar and others, Glasgow, May 4th 1842; 1 Broun 233 (Indictment). 3 Case of Morison supra. 4 Jas. Affleck, H.C., May 23d 1842; 1 Broun 354.-Edward Hagan and Patrick Hagan, Glasgow, Dec. 28th 1853; 1 Irv. 342 (Indictment). 7 Alison i. 181, 182. 8 Hume i. 330, 331, and case of M'Ewan in note a-Alison i. 195, 196.-Lachlan Brown, Inverary, April 29th 1842; 1 Broun 230 and Bell's Notes 89. Communication of venereal disease (1). IV. Aggravations relating to the place of the as sault: In the presence of the Sovereign (2). In a Royal domain (3). In the supreme courts of justice (4). AGGRAVATION FROM EXTENT AGGRAVATION BY PLACE OF Royal presence. Royal domain. Law Court. son assaulted. hamesucken. In the premises of the person assaulted (5), and Premises of perthis especially when the premises are sought with the premeditated purpose to assault (6). This last aggravation is nearly the same as hamesucken; but as Distinction from hamesucken is only constituted by a very serious assault (7), such an aggravation as premeditatedly seeking a person in his own premises in order to assault him, is properly charged, where the assault to be proved is not so serious as to constitute hamesucken, or has taken place in a building which was not the sufferer's dwelling-house. QUALITY OF V. Aggravations resulting from a quality of the AGGRAVATION IN person assaulted, or the relation in which the parties SUFFERER stand to each other. On parents (8). Parent. On a child of tender years (9), and especially by a Young child, and parent (10). 1 Jas Mack, Glasgow, Dec. 22d 1858; 3 Irv. 310. 2 Hume 326, 327. 3 Hume i. 327. 4 Hume i. 405. This and the two last named offences were capital by statute in early times. In flagrant cases they would probably still be considered as aggravated offences at common law. 5 Hume i. 318, case of Macdonald and Fraser in note a.-Alison i. 196, 197, case of M'Credie there. 6 David R. Williamson, H.C., June 13th 1853; 1 Irv. 244. 7 Hume i. 320, case of Haldane here. 8 Alison i. 197.-Jas. Alves, Perth, April 14th 1830; 5 Deas 9 This generally occurs com- 10 Alex. Macgregor, Glasgow, April 1846 (Indictment); Adv. Lib. Coll. This is given as a single instance; there are many indictments to the same effect. On the same principle, an assault on a lunatic or idiot would probably be held aggravated. especially by parent. |