AGGRAVATION IN

QUALITY OF

SUFFERER.

Pregnant

woman.

Infirm person. Clergyman. Judge. Magistrate.

Privy Councillor.

Officer of law.

Scope of term officer of law.

(Indecent) by a person in charge of a child (1).
On a wife (2).

On a woman in advanced pregnancy (3.)

On a person known to be infirm (4).

On magistrates when engaged in preserving the peace (7), or in reference to their official conduct (8). On the officers or privy councillors of the Sovereign, on account of service done to the Crown (9).

On officers of the law on duty, or in revenge for duty performed (10). Officer of the law includes sheriff-officers, police-constables, revenue-officers, waterbailiffs-in fact all appointed to carry out police or statutory duties (11), provided they be vested in their

QUALITY OF

office and are performing a competent act (1), and there AGGRAVATION IN be no known or glaring defect in the warrant or dili- SUFFERER. gence where such is being enforced (2).

civil power.

On soldiers doing duty in aid of the civil magis- Soldiers aiding trate (3).

prisoner.

On soldiers in charge of a military prisoner, for the or in charge of purpose of rescue, or the like (4).

By an officer of law on a prisoner under his By person on charge (5).

Where the aggravation consists in the quality of the sufferer it must be shown that the accused knew

it. (6).

prisoner in his charge.

PREVIOUS CON

VI. As regards aggravation by previous convic- AGGRAVATION BY tion (7), the general rule applies, that the conviction VICTION. need not be of a similar assault to that under trial. A conviction of simple assault may be founded on in a charge of assault, especially when committed with intent to ravish; or assault, especially when committed with intent to rob, and vice versa. But the conviction must be truly of assault. If there are

other offences connected with the assault in the conviction, they must be so stated as to prevent the question being raised whether assault was truly a ground of conviction. Where a previous conviction of "de"forcement and assault" was libelled, the fact of the charge being put in this form was held to make it doubtful whether the conviction was truly for assault

1 Gunn and others v. Proc.-Fiscal of Caithness, H.C., Nov. 24th 1845; 2 Broun 554.-Margaret Stewart or Cook and others, Inverary, April 17th 1856; 2 Irv. 416.

2 Beattie v. Proc.-Fiscal of Dumfries, H. C., Dec. 10th 1842; 1 Broun 463.

3 Jas. Nicolson and John Shearer, Inverness, April 15th 1847; Ark. 264.

4 Geo. Mill and others, Jedburgh,

Sept. 16th 1839; 2 Swin. 444. The
charge was not put in this case as
aggravated, but there can be no
doubt that it might have been so.
5 Alex. Findlater and Jas. Mac-
dougal, Glasgow, Jan. 9th 1841; 2
Swin. 527 and Bell's Notes 92.

6 Alex. Alexander and Jas.
Alexander, H.C., Jan. 22d 1842; 1
Broun 28 and Bell's Notes, 102.--
Geo. M'Lellan and others, H.C.,
Dec. 26th 1842; 1 Broun 478.
7 Alison 197, 198.

L

PREVIOUS CON

VICTION.

AGGRAVATION BY separately from deforcement, and the conviction was withdrawn. But in the same case another conviction for "deforcement, as also assault," was admitted, as it indicated a conviction of assault as a substantive crime (1).

PUNISHMENT.

STELLIONATE.

STATUTORY
OFFENCE.

The punishment is either penal servitude or imprisonment, or in trifling cases a fine, either in conjunction with, or in lieu of, imprisonment.

STELLIONATE.

De

The term stellionate is now nearly obsolete. noting a "real injury," it was formerly used in cases of serious injury to the person; as by binding or burning another severely, or thrusting a needle into the eye, or administering injurious drugs, or large quantities of spirits to children (2). The term was of little value, as it was invariably made only the heading of a particular statement of the offence. Though similar offences have occurred of late years, the term has not been used since 1842 (3).

BEATING AND CURSING PARENTS.

By statute, it is a capital offence for any one "not "distracted" to beat or curse father or mother, except

1 Andrew Young and others, Dumfries, April 7th 1842; 1 Broun 213 and Bell's Notes 33. (Mr Bell's notice of the case is scarcely accurate, as he speaks of the first conviction as having been for "de"forcement," whereas it was for "deforcement and assault.")

2 Hume i. 328 and case of Campbell there and in note 1 (burning). -Alison i. 196.-Thos. Ogilvie and And. Ogilvie, Perth, April 14th 1830; Bell's Notes 89 (binding)-— Peter Flin and Will. Drummond, Inverary, Sept. 1829; Indictment, Adv. Lib. Coll. and Lord Wood's

MSS. (injury to eye).-Will. Buchan and Donald or Daniel Hossack, July 22d 1840; Bell's Notes 90 (drugs).-Rob. Brown and John Lawson, Glasgow, Sept. 21st 1842; 1 Broun 415 and Bell's Notes 90 (giving spirits to child).-Donald Macgregor, Inverness, April 18th 1850, Lord Justice Clerk Hope's MSS. (administering croton oil).John Smith, Perth, May 1st 1856; Lord Justice Clerk Hope's MSS. (administering cantharides).

3 As an example, see Peter Milne and John Barry, Dundee, April 8th and 9th 1868; 1 Couper 28.

OFFENCE.

in the case of children between pupillarity and sixteen STATUTORY years of age, in regard to whom the punishment is Parents by arbitrary (1). Father and mother by affinity (2) and affinity and grand parents (3) are not included.

grand-parents not included.

cursing.

serious.

The beating and cursing are separatim relevant Beating or (4). As regards beating there must be a violent and Assault must be real assault. Many assaults at common law would be held too slight to fall under the statute (5). Where a judge laid it down that "no man breathing "can doubt that the facts, as they appear in evidence, "constitute the crime of assault at common law," it was also laid down as "clear that no such beating had "been proved as to bring the case under the Act of "Parliament," (6).

include case of

tion?

Whether the word "distracted" would apply, to Does "distracted" protect a son or daughter, retaliating for gross and gross provocacruel injury inflicted by the parent, has not been decided. But it is thought that if the parent "has "provoked the injury, by a cruel and excessive abuse "of the child's person," that this would be a good defence (7).

strong in terms

Cursing parents is not committed except by un- Cursing must be ambiguous expressions, amounting to "bitter and and manner. "hostile execration," (8). Where the accused was very much intoxicated, the Court thought it would be

intoxicated.

"a very serious matter to hold that expressions uttered Cursing when "under the influence of intoxication, as here proved,

'show such a settled purpose of mind, as to bring

1 Act 1661, c. 20.-In modern practice the pains of law are invariably restricted.

2 Hume i. 325, and case of Chalmers there.-More ii. 375.

3 Hume i. 325, 326.

4 Hume i. 325, case of Young there. See also the Interlocutor in the case of Brown and Chalmers in note 2.

5 Hume i. 324, 325.

6 Jas. Alves, Perth, April 14th 1830; 5 Deas and Anderson 147.

7 Hume i. 324.-See also Rob. M'Anally, Glasgow, April 27th` 1836; 1 Swin. 210 and Bell's Notes 87 (Lord Mackenzie's charge),

8 Hume i. 325. The following cases afford illustrations of the sort of language held to constitute the statutory offence: Jas. Alves, Perth, April 14th 1830; 5 Deas and Anderson 147 and Bell's Notes 87. -John Beatson, H.C., July 14th 1836; 1 Swin. 254 and Bell's Notes 88.

STATUTORY
OFFENCE.

"them under the statute," (1). The statute does not seem to require that the words should be uttered in be in presence of the parent's presence (2).

Cursing need not

parent.

PLACE OF
OFFENCE.

ing-house.

HAMESUCKEN.

Hamesucken consists in committing serious violence upon another in his dwelling-house, the house having Must be in dwell- been entered with intent to commit the assault. It is not hamesucken, if the place be only an outbuilding (3), or a shop or office. It must be the place the sufferer lives in. And this holds even where the shop and dwelling are in one building. An attack in the shop is not hamesucken (4). It is not hamesucken to attack the landlord of an inn, his house being open to all comers. But this rule is applied in a reasonable sense. It would be hamesucken, for example, to break the security of an inn after it was closed for the night, and to attack the innkeeper (5). The question has

Case of innkeeper.

hamesucken?

Is assault in ship not been decided whether hamesucken can be committed in a ship (6). But it seems reasonable to hold that a ship, unless it be a hulk turned into a sailors' home or school, is not to be looked upon as the home of any person.

House must be fixed abode.

The house must be the settled abode of the person attacked. An attack on a guest or temporary lodger, whether in a private house or an inn, House need not is not hamesucken (7). But the house need not be the sufferer's own property. Even a landlord may commit hamesucken on his own tenant in occupation (8).

be sufferer's property.

1 Jas. Alves supra.

2 Hume i. 325, and case of Stansfield there.

3 Hume i. 315, 316, and cases of Balfour and others: and Home there.-Alison i. 201, 202.-More ii.

374.

4 Hame i. 312, 313, and cases of Kirkwood and Murray there.-i. 315, 316.-Alison i. 201, 202, 203.

5 Hume i. 315.-Alison i. 203. 6 Burnett 92, 93, and cases of Haldane and others: and Watson and others there.-Alison i. 204.

7 Hume i. 313, and cases of Leith and the Master of Tarbat and others there.-Alison i. 201, 202. More ii. 374.

8 Hume i. 314, and case of Keith there.-Alison i. 202.-More ii. 374.