Statutes.

693

GRIEVOUS BODILY HARM, INFLICTING.

This title is practically a continuation of Assault.

Statutes] In numerous instances the words 'grievous bodily harm' occur in statutes: e.g. 24-5 V. 100, 11, 18, 20, 23, 128 (the full phrase seems to have been first used in rpd. 43 G. 3, 58); sometimes the words are slightly varied: ss. 26, 35, bodily harm'; ss. 29, 30, bodily injury; s. 47, actual bodily harm.' These ss. will be found under various titles obviously closely connected with this subject.

· Bodily harm'] becomes 'grievous' whenever it seriously interferes with health or even comfort. It is not necessary that its effects, should be dangerous nor that they should be permanent': Kenny, Outlines C. L. c. 10, following Ashman, 1 F. & F. 88, 1858, where a man who shot at a parson while preaching in church was acquitted of the intent,' but convicted of an aggravated assault,' i.e. inflicting grievous bodily harm. Whether or not the harm is grievous is for the jury: ib., see under s. 47. For the physical sense of wound, see Wounding.

Defendant was indicted, under 7 W. 4 & 1 V. 85, 2, rpd., for causing a bodily injury dangerous to life, with intent to commit murder.' Intending to cause the death of her infant child she exposed it in an open field on a cold wet day, where it was found after some hours nearly dead from congestion of the lungs and heart caused thereby, but was restored. In view of the character of the other offences provided for by that s. (poisoning, stabbing, wounding, &c.) and seeing that there had been no lesion of any of the child's organs, the c. for a bodily injury' q. Gray, D. & B. C. C. 303; 26 L. J. M. C. 203; 7 Cox C. C. 326, 1857. See 24-5 V. 100, 27.

Halliday was a remarkable extension of s. 20, above. Defendant threatened his wife, with every appearance of intending her violence: she began to get out of the window to avoid him, but was held back by a daughter whom he bade let her go, which she did, and the wife fell out; held that he was rightly convicted of doing her grievous bodily harm and of assaulting her: 54 J. P. 312; 61 L. T. 701; 38 W. R. 255; 6 T. L. R. 109, 1889: C. C. R., where L. Coleridge C.J. said, 'When a man creates in another's mind an immediate sense of danger which causes such person to try to escape, and in so doing he injures himself, the person who creates such a state of mind is responsible for the injuries'; followed in H. S. Beech, 23 Cox C. C. 181; 107 L. T. 461; 76 J. P. 287; 7 Cr. A. R. 197, 1912, where the facts were much the same.

Intent-specific' malice] It is not necessary to prove malice against the individual injured; or that any grievous bodily harm was in fact inflicted, if there was an intent to inflict it on some one, as was held in Hunt, 1 Moo. C. C. 93, 1825, apparently under 43 G. 3, 58. Defendant having been apprehended by the owner, in an attempt to break

open his stable in the night, was taken into his house where he threatened him with vengeance and struck at him with a knife which he seized; in so doing he cut a servant, who was assisting his master; the cut was not serious. The jury found that the thrust was made with intent to do grievous bodily harm on anybody on whom it might alight, though the particular cut was not calculated to do so. This case also appears to have resolved (a point doubted in Akenhead, Holt N. P. C. 469, 1816, under that A.) that the wound need not be in a vital part. Defendant was indicted under 24-5 V. 100, 18, for wounding with intent to do grievous bodily harm, but the jury found him guilty of unlawful wounding only, under 14-5 V. 19, 5, in which fifteen judges said, 'the term malicious' must be understood, and twelve held (without giving reasons) that malice was sufficiently shown in the following circumstances. He and prosecutor, who had been on good terms, were in separate punts on the water on a light night. Defendant had on different occasions said he would shoot at wild fowl even if somebody was in the way at the time: he fired at twenty-five yards' distance, and at that moment the prosecutor's punt slewed round and he was shot. Defendant then rendered help, and assured him that it was an accident. It was stated in the case that it seemed probable that he only intended to frighten prosecutor, and to deter him from coming to shoot there again. Blackburn J. said: 'I have always thought a man acts maliciously when he wilfully does that which he knows will injure another in person or property.' Ward, L. R. 1 C. C. R. 356; 41 L. J. M. C. 69; 26 L. T. 48; 20 W. R. 392; 12 Cox C. C. 123, 1872. Defendant, with the intention of causing terror to persons leaving a theatre, and with the intention of obstructing the exit, put out the gas on a staircase and placed an iron bar across a doorway. In attempting to escape several of the audience were injured by the crush; it was held that he was rightly convicted of unlawfully and maliciously inflicting grievous bodily harm upon two of the crowd. He acted,' said L. Coleridge C.J., unlawfully and maliciously, not that he had any personal malice against the particular individuals injured, but in the sense of doing an unlawful act calculated to injure, and by which others were in fact injured.` Stephen J. said: 'If the prisoner did that which he did as a mere piece of foolish mischief unlawfully and without excuse, he did it wilfully, that is, maliciously,' within 24-5 V. 100, 20. Martin, 8 Q. B. D. 54; 51 L. J. M. C. 36; 14 Cox C. C. 633, 1881: C. C. R. Where, therefore, defendant, while unlawfully and maliciously aiming a blow at A., accidentally wounded B., he was held to be rightly convicted of unlawfully and maliciously wounding B. Latimer, 17 Q. B. D. 359; 55 L. J. M. C. 135, 1886: C. C. R., under s. 20; Hunt, 1825. The same construction, with regard to general malice, was put on the rpd. Coventry A., 22-3 C. 2, 1: Carrol, 1 Lea. 55; East P. C. 394, 396, 1765.

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It is necessary in this subject to bear in mind Dr. Kenny's remark: 'The 'malice' required here is something narrower than that vague general idea of a wicked state of mind which the word usually denotes at common law, as in cases of homicide or in the phrase mute of malice. For in statutory wrongs the word 'malice is presumed to have been employed by the legislature in a precise sense; so as to require a wickedness which consisted of or included an actual intention to do an injury and, moreover, an injury of the same kind as that which in fact was done.' Outlines C. L. c. x. If the doer knew that another kind of harm might probably be done, there is enough

statutory malice: ib.; this explains the conviction in Chapin under the 1861 A.

See further under Murder.

General and specific intent] The following points have been decided:

1. If defendant meant to, and did in fact, inflict grievous bodily harm when he struck, a mistake on his part about the identity of the person injured makes no difference, and he may be convicted of wounding that person with intent to murder him. Thus A., desiring to murder C., and supposing B. to be C., shoots at and wounds B., A. may be convicted of wounding B. with intent to murder B. Smith, D. & P. 559; 7 Cox C. C. 51, 1855, under a rpd. s. This and other cases, appear to be inconsistent with (and if so, the former overrules) Holt, 7 C. & P. 518, 1836, which was mentioned to the court in Smith. To the same effect: Stopford, 11 Cox C. C. 643, 1870, where from the report it would appear that Brett J. thought that some of the cases were not distinguishable from (and ought to have followed) Smith. Some of the older cases, indeed, in conflict with these decisions, turned entirely on ss. different to those in the 1861 A. and on the forms of the indictments thereunder.

2. If he had a general intention to inflict grievous bodily harm on any one of a group, &c., and in pursuance thereof did inflict grievous bodily harm on A., without any specific intention, he may be convicted of wounding A. with intent to do grievous bodily harm to A.

Defendant fired a loaded pistol at a group of boys, of whom A. was one, who had been annoying him, and hit A. Held, that he was rightly convicted of shooting at A. with intent to do A. grievous bodily harm. Fretwell, L. & C. 443; 9 Cox C. C. 471, 1864. Martin, 1881, above.

Cf.

3. If he intends to inflict grievous bodily harm on A., and in endeavouring to wound or poison A. such harm is accidentally inflicted on B., he may be indicted and convicted of wounding B., with intent, &c. Latimer, above, distinguishing Pembliton.

A constable was employed to guard a copse from which wood had been stolen, and for this purpose carried a loaded gun; from this copse he saw W. come out, carrying wood which he was stealing, and called to him to stop; W., however, running away, the constable having no other means of arresting him, fired and wounded him in the leg. The constable was not aware at the time that W. was (as he in fact was) committing a felony. It was held that a conviction for wounding with intent, &c., was right, on the ground that he was not justified in firing as the fact that W. was committing a felony was not known to the prisoner at the time.' Dadson, 2 Den. C. C. R. 35; 4 Cox C. C. 358; 20 L. J. M. C. 57, 1850.

Intent to commit another felony] The intent to do grievous bodily harm may be inferred, although defendant had also an intent to commit another felony-in Cox, probably rape. The judge held that though not eventually dangerous, the harm may be a grievous bodily injury,' and added that the intention might be inferred from the act: conviction upheld: R. & R. 362, 1818, under 43 G. 3, 58, under which, too, a defendant charged with shooting, with intent to do A. B. some grievous bodily harm, was held rightly convicted, when the jury found that his [primary] motive was to prevent his lawful apprehension, but

that, in order to effect that purpose, he had also the intention of doing A. B. the harm, as, if both the intents existed, it was immaterial which was principal and which subordinate (both being specified in the A.). Gillow, Moo. C. C. 85, 1825. So if a person wound another in order to rob him, and thereby inflict grievous bodily harm, he may be convicted on a count charging him with intent to do grievous bodily harm. Bowen, C. & M. 149, 1841, where, it being uncertain who actually struck the blow, the doctrine of common design was ruled to apply.

Where, defendant, in attempting to commit a robbery, threw down prosecutor, kicked him, and produced blood, Denman C.J. left it to the jury to say, whether his intent was to disable the prosecutor, or to do him some grievous bodily harm, under 9 G. 4, 31, 12, rpd., adding that nothing was more likely to accomplish the robbery which he had in view than the disabling which such violence would produce.' Shadbolt, 5 C. & P. 504, 1833. Merely striking a blow with the fist, though it break both jaws, is not in itself enough to prove this intent: Wheeler, 1 Cox C. O. 106, 1844.

Unnecessary violence] Where a person assaulted, who is entitled to defend himself, unnecessarily resorts to the use of a deadly weapon, he may be convicted of wounding with intent to do grievous bodily harm, if such was his intent. Odgers, 2 Moo. & R. 479, 1843, where, prosecutor having been the aggressor, assault only was found, though defendant had used a scythe.

Unlawful wounding] For the verdict of unlawful wounding,' see 14-15 V. 19, 5. Where, however, the indictment merely charged a felonious shooting with intent to do grievous bodily harm,' and grievous bodily harm,' with the same intent, under 24-5 V. 100, 18, it was held by Bowen J. that it was not competent to the jury to convict of unlawfully wounding, it not being alleged that defendant did 'cut, stab, or wound,' under s. 5, rpd. Miller, &c., below. This point, not having been reserved, does not seem to have been noticed in Waudby, 1895, 2 Q. B. 482; 64 L. J. M. C. 251; 18 Cox C. C. 194: C. C. R., where on an indictment against two men, charging one with feloniously shooting and feloniously wounding with intent to do grievous bodily harm, and the other with aiding and abetting therein, the jury found the former guilty of the misdemeanour only, and the latter of aiding and abetting him. It was claimed that on that indictment such a verdict against the latter could not be found, but the court held that if the principal be convicted of the misdemeanour under s. 5 of unlawfully wounding, the accessory may be convicted also. Cf. Hapgood and Wyatt; Miller and others, 14 Cox C. a 356, 1879. On an indictment for the misdemeanour of inflicting grievous bodily harm, defendant may be found guilty of a common assault: see s. 47. So where, owing to misdirection, a jury found on indictment under s. 18 unlawful wounding, the C. C. A. set this verdict aside, but substituted one in terms of s. 47, under which there was another count, declining to substitute common assault or alter sentence: A. Cameron, 10 Cr. A. R. 198, 1914. In Cruse, 8 C. & P. 541; 2 Moo. C. C. 53, 1838, on an indictment under 7 W. 4 & 1 V. 85, 20, a common assault was found.

See for the form of indictment, No. 5 in Appendix to Indictments A. 1915.

The phrase seems to occur first in the title of Part 3 of rpd. 32-3 V. 99, and not otherwise in any s. before s. 10 of 8 E. 7, 59, the Prevention of Crime A. 1908, which is:—

(1) Where a person is convicted on indictment of a crime. and subsequently the offender admits that he is or is found by the jury to be a habitual criminal and the court passes a sentence of penal servitude the court, if of opinion that by reason of his criminal habits and mode of life it is expedient for the protection of the public that the offender should be kept in detention for a lengthened period of years, may pass a further sentence ordering that on the determination of the sentence of penal servitude he be detained for such period not exceeding ten nor less than five years, as the court may determine, and such detention is hereinafter referred to as preventive detention, and a person on whom such a sentence is passed, shall, whilst undergoing both the sentence of penal servitude and the sentence of preventive detention, be deemed for the purposes of the Forfeiture Act, 1870, and for all other purposes, to be a person convicted of felony. (2) A person shall not be found to be a habitual criminal unless the jury finds on evidence

(a) that since attaining the age of sixteen years he has at least three times previously to the conviction of the crime charged in the said indictment been convicted of a crime, whether any such previous conviction was before or after the passing of this Act, and that he is leading persistently a dishonest or criminal life; or