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5. Attempting to suffocate any of Her Majesty's STATUTORY subjects, with intent to murder or disable, or to do some other grievous bodily harm.
Attempting to suffocate,
6. Attempting to strangle any of Her Majesty's or strangle, subjects, with intent to murder, disable, or to do some other grievous bodily harm.
7. Attempting to drown any of Her Majesty's or drown. subjects, with intent to murder or disable, or do some other grievous bodily harm.
8. Throwing at, or otherwise applying to any of Throwing acids. Her Majesty's subjects, any sulphuric acid, or other corrosive substance calculated to injure the human frame, with intent in so doing to murder, or to maim, disfigure, or disable, or to do some other grievous bodily harm, and where, in consequence, any of Her Majesty's subjects shall be maimed, disfigured, or disabled, or receive some other grievous bodily harm.
arms no intent
It is to be observed that the two offences by the In case of fireuse of fire-arms are different from all the rest, as no specified. special intent is required by the Act. Accordingly, where the shooting was found proved, but only with intent to do "bodily harm," this was held a good conviction (1). "Loaded" is not held to imply that the Loaded does not fire-arms be loaded with shot or other missiles; gun- shotted. powder and a piece of paper as wadding has held enough (2). In the cases under the third fourth heads, the injury must be actually done. stab must be inflicted, or the poison taken. words "suffocate," "strangle," and "drown," in the Suffocating, fifth, sixth, and seventh heads, which are all joined drowning." together in the statute, without a repetition of the words wilfully, maliciously, and unlawfully, are some
1 Geo. Duncan, H.C., July 23d or 24th 1845; 2 Broun 455.-See also John Robertson, Dec. 26th and 27th 1833; Bell's Notes 67.—Indictments upon this part of the statute alone do not, as a rule, specify any intent.-See Geo. Blair,
and Stab must take The must be taken.
effect, and poison
Dumfries, April 1836; Bell's Notes
2 Walter Blackwood, Glasgow,
Acid must cause positive injury.
No capital sentence unless case of murder, if
sufferer had died.
It is provided, in reference to all the above offences, that if it appear at the trial that, "under the circum"stances of the case, if death had ensued, the act or "acts done would not have amounted to murder," the offender shall not be subject to capital punishment. Is judge or jury But it is not said whether this question is to be left to the jury, or is to be decided by the judge as matter of law. Probably the question would be left to the jury.
to decide the above?
Statute applies only to assaults
on British subjects.
Under the statute the offence must be against "Her Majesty's subjects," injury to an alien is not included (4).
1 Elizabeth Anderson or Fraser, Glasgow, Oct. 1st 1850 (unreported). The accused pled guilty to a charge of assault at common law. -Lord Justice-Clerk Hope's MSS.
2 Sir Archibald Alison seems to
"upon the person against whom it
1 Broun 313, where Lord Moncrieff
in his charge says, "Some person "must in consequence be maimed," &c.
3 See Jas. Wood, Perth, Oct. 4th 1836; 1 Swin. 283 (observation by Lord Medwyn).
4 The question has never been raised whether, in proving the statutory charge, the prosecutor is not bound to prove that the injured party is a British subject. Some indictments are to be found in which the fact is specifically averred.
CONCEALMENT OF PREGNANCY.
If a woman, whether married or unmarried (1), SCOPE OF TERM conceal her condition during the whole period of pregnancy, and do not call for and use assistance in the birth, and the child be found dead, or be not found at all, she is guilty of concealment of pregnancy (2). But disclosure to any one, even to the Disclosure to father of the child, exempts from punishment, though she deny the fact to all others (3); and though the or extorted disclosure be not voluntary, but be extorted, as, for sufficient. example, by examination at the instance of a kirksession (4).
It may be a difficult question what amounts to What is a disdisclosure. It is not enough that the woman makes no effort to hide her state (5). But an absolute Explicit disand explicit statement that she is pregnant is not required. necessary, if there be a disclosure sufficient to take off the presumption of a criminal indifference about the fate of the child (6). If, on being charged with being Conduct implypregnant, she lead by her conduct to the belief that she indeed is so, although not directly acknowledging it, the statute does not apply. Even though her reply Jocular denial. be a denial, she would probably not be held to have concealed her condition, if it was given in a jocular manner or otherwise, so as to lead to the conclusion that in reality she admitted the fact (7). The question has Open preparation not arisen whether there may not be a disclosure without any direct statement. Suppose that a woman becomes pregnant, and that from motives of delicacy
1 Hume i. 298, and case of Dickson there.-Alison i. 157.
2 Act 49 Geo. III. c. 14.
3 Ann Gall, H.C.,Jan. 24th 1856; 2 Irv. 366 and 28 S. J. 155.-Jean Kiellor, H.C., Nov. 20th 1850; J. Shaw 576 and 2 Irv. 376 note, and 28 S. J. 156 note.
4 Hume i. 296, and case of
6 Hume 294,295,cases of Orrock:
7 Jane Skinner, Aberdeen, Sept. 1841; Bell's Notes, 80.
SCOPE OF TERM neither she nor her relatives, though they observe her
Disclosure at early period.
condition, ever speak on the subject; but that the woman openly makes clothing for the child, and perhaps even receives assistance in this from those about her. If it should happen in such a case that no one was present at the time of the birth, could it be said that there was concealment (1)? This case would seem to be stronger in the woman's favour than that of a direct acknowledgment, which possibly may be made long before the time, and to one who may not be at hand at the birth. For here the woman's conduct indicates preparation for care of the child, and is inconsistent with that disregard of its safety which seems of the essence of the crime.
A disclosure, if distinct, elides the statute, although made at a very early period of pregnancy. For "a "disclosure to one person may fairly be considered as a disclosure to many more (2); and it is equally evident that an early disclosure is more likely to become known to many than one made just before delivery. The words of the statute, "during the "whole period," seem irreconcilable with any other view.
It is a question not yet decided whether a disfor evil purposes. closure is sufficient, though made with the wicked intention of obtaining aid in concealing the fact from others and getting rid of the child. Views have been indicated pointing to the likelihood of this not being held to bar a conviction (3). Although an opinion contrary to that expressed by members of the court of highest authority must be stated deferentially;
1 Alison i. 156. A case of this sort, under the older statute of 1690 is mentioned by Burnett, where the statutory charge was departed from. -Stewart, spring 1786; Burnett 572, note.
2 Hume i. 295. In early times the law was more severe, as illus
trated by the case of Park on this page of Hume.
3 See the opinions of the judges in the case of Ann Gall, H.C., Jan. 24th 1856; 2 Irv. 366 and 28 S. J. 155.-Baron Hume (i. 295) also raises the question, but expresses no opinion upon it.
still it is thought that to hold a revelation to be no SCOPE OF TERM revelation, because of any purpose which the woman had in making it, would be going beyond the statute, which uses the word "conceal," and says nothing of the case of a disclosure of the fact being held to be no revelation, because of the motive with which it is made. It was passed for the purpose of reaching one case which the common law was powerless to meet : that of the woman carrying her secret in her own breast, and delivering herself unknown to others, to the risk of the destruction of the child-not by murder, for the common law met that case-but by want of assistance. Now, if the woman reveals her condition from whatever motive, is she not beyond the statute ? She may be beyond it, only by having committed a greater crime, such as conspiracy to commit a murder, or attempting to seduce another to do so (1); but does that circumstance alter the fact, so as to bring her within the statute? It is difficult to see how such a case could be brought within it. The idea that the woman is to be held not to have told, because she has told with a motive, seems to be not only interpreting a statute on principles of supposed policy, instead of on its terms (2), but to involve a sacrifice of logic. To say that a revelation to one person, which is undoubtedly sufficient in itself, is a part of a continued concealment, because made with the motive of concealing from others, appears to involve a contradiction in terms. Besides, if revelation to one person, for the purpose of concealing from others, be no revelation; then, logically, a disclosure to a whole household, for the same purpose, is still a concealment. Thus, the moment the statute is stretched to punish cases not literally falling under it, the result becomes
1 Attempting to seduce another to enter into a conspiracy to commit murder is undoubtedly a relevant criminal charge.-Hume i. 27,
case of Dingwall there.
2" Ubi lex non distinguet nec nos distinguere debemus," is a maxim which appears to apply.