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crime to obtain a woman's consent by personating her husband, or for one not being the woman's husband, to take possession of her person while asleep. Charges of—“Fraudulently and deceitfully obtaining access to “ and having carnal knowledge of a married woman,
by pretending to be her husband, and behaving to"wards her so as to deceive her into the belief that “ he was her husband (1), and of wickedly and feloni
ously having carnal knowledge of a woman when
asleep, and without her consent, by a man not her “husband” (2), have been held relevant. In this last case the words “ by a man not her husband ” are not to be understood as implying that the offence cannot be committed on an unmarried female. The object of inserting these words is to make the charge involve necessarily a point of dittay, and they apply equally to an unmarried as to a married woman--the man who takes this advantage of her is “not her “ husband ” (3).
It is a crime to carry off and confine any person forcibly, and without lawful authority ; to abduct women for the purposes of rape or marriage (4), or to carry off voters to control elections (5), or witnesses to
SCOPE OF TERM
1 Will. Fraser, H.C., June 21st woman's subsequent acquiescence and July 12th 1847; Ark 280 and barred a capital sentence, though 329.
not an arbitrary punishment. But 2 Chas. Sweenie, H.C., June 18th it is usual in every case at the pre1858 ; 3 Iry. 109 and 31 S.J. 24. sent day to restrict the pains of law -Will. M'Ewan or Palmer, Dum- in the case of rape, so that this fries, Sept. 26th 1862; 4 Irv. 227. statute is of no importance.
3 Will. Thomson, H.C., Oct. 28th 6 Alison i. 642, 643, and cases of 1872; 2 Couper 346 and 45 S.J. 19 Lindsay and others : Taylor : and and 10 S.L.R, 23.
M'Lachlan and others there.-Mal4 Hume i. 310, 311, and cases of practices to prevent voters from Carnegie : Gray and others : and exercising their rights, including M'Gregor there.— Alison i. 226, abduction, are made punishable by 227.
By Act 1612, c. 4, where fine or imprisonment by 17 and there was abduction and rape, the 18 Vict., c. 102, $ 5.-See John
suppress evidence, or even to carry off and detain, from Scope of teru mere motives of spite, any person whatever (1).
The punishment is penal servitude or imprison- PUNISHMENT. ment (2).
CRUEL AND UNNATURAL TREATMENT
Although the law cannot take cognisance of those CRUEL TREATunkindnesses which are only constructively cruel (3), though often as fatal as direct violence, still wherever any one grossly violates the duty of properly treating persons under his care or in his power, the law can reach and punish him, even though no act has been done wbich amounts to an assault. Thus confining a Confining in a person in a narrow closet for a long time, and not permitting or giving the means of cleanliness (4), or Exposing a sick exposing a person in a helpless state from severe sickness, and unable to resist, in inclement weather (5), or withholding from children or weak persons withholding nourishment and clothing suitable to the condition of the parent or custodier, or habitually exposing them Exposing to cold. to severe cold, confining them in outhouses in winter, or compelling them to leave shelter, and expose themselves to severe weather without nourishment or proper
Douglas and Jas. Irving, H.C., July 2d 1866 ; 5 Irv. 265 and 2 S.L.R. 181.
1 Sam. M‘Lachlan, Nov. 21st 1831 ; Bell's Notes 86. It might not be safe to charge such offences under the general nomen juris "ab. duction” without some additional specification.
2 As regards abduction of voters vide 17 and 18 Vict. c. 102 g 5.
3 See the opinions of the Judges
in Rob. Watt and Jas. Kerr, H.C.,
4 Will. Fairweather and Ann
6 Peter M‘Manimy and Peter Higgans, H.C., June 28th 1847; Ark. 321.
clothing, or the like (1), are all acts which, singly or combined, have been held criminal.
By Statute (2) it is an offence for a master, who has a duty to provide food or clothing, medical aid or lodging for an apprentice, to refuse or neglect such duty, so as to injure, or to be likely to injure, health seriously or permanently.
Such offences are aggravated where the person committing them is the natural custodier of the sufferer, or where severe or permanent injury has been sustained, or the mind been weakened or destroyed (3). The punishment is either imprisonment or penal servitude according to the circumstances. In the statutory case of apprentices, the offender is liable to imprisonment not exceeding six months, with or without hard labour.
EXPOSING AND DESERTING INFANTS OR
A CRIME, THOUGH
To expose and desert an infant is an offence, though no evil consequences happen (4). Whatever injuries
If death ensue it happen aggravate the offence, and if death ensue this
is culpable homi
cide or murder. Will raise the guilt to culpable homicide (5), or pos
sibly even to murder (6).
It is criminal wilfully to
1 Isabella Lambert, March 11th
2 Act 38 and 39 Vict. c. 86 § 6. 3 Case of Fairweather supra.-John M'Rae and Catherine M'Rae, Glasgow, Sept. 20th 1842; 1 Broun 395 and Bell's Notes 82.-Case of Fay supra.
4 Hume i. 299.-Alison i. 162 and cases of Buchanan: and Craig there.
5 Hume i. 299 and cases of Graham and Kilgour there.Alison i. 162.
6 Elizabeth Kerr, H.C., Dec. 24th 1860; 3 Irv. 645.
place a child in a situation of danger to its life, A CRIME, THOUGH although strictly speaking there be no desertion. ENSUE. Where a mother placed her child in a basket and Placing child in sent it as a parcel by rail without informing the railway officials that there was a child in it, or giving the child into any one's charge, the Court held that such an act was punishable (1).
The punishment is arbitrary.
DRUGGING WITH FELONIOUS INTENT.
The administration of stupefying drugs though not DRUGGING. to kill or facilitate a rape, may be a crime. Where they are administered so as to stupefy and deprive of consciousness, though there be no further intention of evil, or no damage result, this of itself is sufficient to constitute an offence unless done for lawful purposes.
Wilfully and maliciously or culpably and recklessly administering to or causing to be taken (or inhaled) "by any of the lieges, any stupefying drug (or vapour), whereby they are reduced to a state of unconsciousness or stupor," or some similar statement, would probably be held a relevant charge. No case has as yet occurred in which the act stood cutor having always been able to actual injury to the person, or of intent, such as intent Generally comto steal the property of the person stupefied (2), or injury or a intent to prevent "any of the lieges from following "their lawful business, or exercising their political
bined with an
rights" (3), and similar charges. To a certain extent these cases bear out the relevancy of such a charge as that supposed, the injury or intent being generally alleged as aggravations, preceded by "espe
alone, the prose
add a charge of
1 Rachel Gibson, Glasgow, Jan. 8th 1845; 2 Broun 366.
2 Alison i. 629.-David Wilson and others, Dec. 22d 1828; Bell's Notes 22.-John Stuart and Cathe
rine Wright or Stuart, H.C., July 14th 1829; Bell's Notes 22.
3 Alex. Mitchell, Aberdeen, April 1833; Bell's Notes 90.
cially." But at the time when these cases occurred, the word " especially" was sometimes used not as heading an aggravation, but as synonymous with "par"ticularly," and therefore they would probably not be held to establish such a charge by precedent. But it seems impossible to doubt its relevancy.
OPPRESSION UNDER COLOUR OF LAW.
Judges or other officials commit crime if they use their office to oppress the lieges. And the same holds private party who, under colour of law, uses Overt act must oppressive proceedings (1). Of course there must be acts manifestly indicating intent to oppress, in order to constitute a relevant charge (2.) Such prosecutions are not likely to occur at the present day, except in the case of inferior officers, or of private individuals falsely pretending to have legal authority. And in such cases the oppressive conduct, under colour of law, may often be charged as an aggravation of another offence, for the oppression generally forms only an element of a more extended charge. For example, in one case assault was charged as aggravated by being committed by an officer of the law upon a prisoner under his charge, to extort a confession (3). And in another case the charge was combined with one of extortion the wickedly and feloniously "obtaining "of goods or money by extortion and oppression "of the lieges; more particularly the wickedly and "feloniously extorting of goods from the lieges without
The punishment is either imprisonment or penal servitude.
Oppression generally charged as aggravation.
1 Many offences of this class partake of the character of fraud, but are noticed here, as being truly personal injuries.
2 Hume i. 408, 409, and Cases of Fife and Kennedy and Nimmo
there. Alison i. 632, 633.-Alex. Waddell and others, H.C., Jan. 19th 1829; Bell's Notes 92.
3 Alex. Findlater and Jas Macdougall, Glasgow, Jan. 9th 1841; 2 Swin. 527 and Bell's Notes 92.