In R. v. Griffin, (r) a father had beaten his child, a little girl of two and a half years of age, with a leather strap, in consequence of which she died. It was contended for the defence that no crime had been committed, as the father had a perfect right to correct his child. Martin, B., however, held that the child must be capable of appreciating the correction, and that in the case before him this capacity was wanting. As will be seen by these cases, it was the causing the Effect of death of the child alone which was looked upon and present Act. punished as a crime. The effect of the present Act, therefore, is to make such excessive punishments as these criminal offences in all cases; it being only needful to prove the infliction of unnecessary suffering, or the likelihood of its ensuing. The first statute dealing directly with assaults upon Statutory children was the Offences against the Person Act, 1861.(s) changes. It enacted that "when any person shall be charged Aggravated before two justices of the peace with an assault or battery assaults, upon any male child, whose age shall not, in the opinion of such justices, exceed fourteen years, (t) or upon any female, either upon the complaint of the party aggrieved or otherwise, the said justices, if the assault or battery is of such an aggravated nature that it cannot in their opinion be sufficiently punished under the provisions herein before contained as to common assaults and batteries, may proceed to hear and determine the same in a summary way." The most important point to observe in this section is. that, while under the previous section dealing with common assaults, the magistrates have no jurisdiction to deal with the case unless the complaint is made by the person assaulted, or by some one on his behalf, under the present section their jurisdiction is complete on complaint by whomsoever made. (r) 11 Cox, 402. (s) 24 & 25 Vict. c. 100, s. 43, post, p. 159. (t) I. s. 43, post, p. 161. What constitutes. Extent of a schoolmaster's authority. Magistrates have no power to convict of a common assault, against the will of the complainant,(u) but in a case of aggravated assault under this section they would have such power. So in a case of common assault where the original complainant failed to appear, and the magistrates proceeded to convict on the complaint of the inspector of police, the Queen's Bench Division quashed the conviction.(x) 66 An aggravated assault under this section is one aggravated in respect of violence, and does not include an indecent assault, which is an offence distinct from an ordinary assault. . . . On a charge of an indictable offence magistrates cannot convict of a summary offence."(y) An assault with intent to commit any other offence is in itself an offence distinct from a common assault, and should be sent for trial to sessions or assizes as the case may be. (2) If the offence is an indictable one, the consent of the prisoner's solicitor will not enable the magistrates to convict summarily. (a) An aggravated assault under this section is an offence differing only in degree, not in kind, from a common assault under the previous section.(b) The Offences against the Person Act, sec. 46, expressly prohibits justices from dealing with an assault which they shall find to have been accompanied by any attempt to commit felony, or which they shall think, from any other circumstance, to be a fit subject for prosecution by indictment. Assaults by Schoolmasters.-A schoolmaster being a person in loco parentis, has the same right to inflict punishment as a parent, and also the same liabilities should the punishment be excessive. His rights in this (u) R. v. Denny [Totnes JJ.], 20 L. J. 189. (x) Nicholson v. Booth, 16 Cox, 373. (y) Per Butt, J., R. v. Baker, 47 J. P. 666. () Per Pollock, C. B., and Wilde, B., In re Thomson, 9 Cox, 70. (a) R. v. Biles, 48 J. P. 281. Unless as under this Act special power is given. (b) Crocker v. Raymond, "Times," Dec. 9th, 1886. respect are of course, however, only co-extensive with the authority deputed to him, and cease as soon as that ceases. In the case of Cleary v. Booth (c) the Divisional Court held that the master of a Board school was entitled to inflict corporal punishment on a pupil, for an offence committed outside the school and at some distance from it; but for a Board school master to punish a child for not learning a lesson not authorised by the Education Code, has been held to be an assault. (d) It is not an assault for a master at a Board school to cane one of the pupils on the hand, provided he does not do it to excess, and a magistrate, though his own private opinion is that caning on the hand is dangerous, is, under the above circumstances, not justified in convicting.(e) does not A schoolmaster who has taken improper liberties with Submission a female pupil may be convicted of an assault, although necessarily the girl is over thirteen years of age and has submitted imply consent. to the assault; (f) the ground being that the fact that the master held a position of authority vitiated the consent.() Mere submission to an assault does not necessarily imply consent.() Assaults chargeable under other Acts.-Where the accused person has neither the "custody, charge nor care" of the child assaulted the summons must be taken out for a common assault.() If it is of sufficiently serious a character and the child is a girl or boy under fourteen, the justices may deal with it as an aggravated assault.(k) If serious injury has been done to the child the accused should be charged with an assault occasioning actual bodily harm(), or if it has been of a still more dangerous character, with unlawful wounding, (m) or if with any What constitutes illtreatment. How far physical "'impact" is necessary. felonious intent with an assault with intent to commit a felony. These assaults are all misdemeanours, and may be charged together in the same indictment, leaving it to the jury to decide the degree of violence used and to find a verdict upon the count most appropriate. Where the assault is with intent to wound, or to cause grievous bodily harm, (n) it is a felony, as is also an assault with intent to commit murder. (0) Assaults involving sexual offences are dealt with in a later chapter.(p) ILL-TREATS. This is a word which is intended to cover a continuous course of active misconduct towards a child, calculated to cause "unnecessary suffering or injury to health." Thus, where one beating might not be sufficiently excessive to constitute an assault within the meaning of the Act, continuous beatings of the same nature might constitute ill-treatment. Ill-treatment need not be inflicted by actual physical violence. It is ill-treatment to wantonly terrify a child, as by making a dog bark at it,(q) or to ruin a child's nervous system by continuous bullying, (1) or to terrify it with a dead snake, thereby causing a "mental derangement." This important point as to how far a criminal injury may be inflicted by one person upon another without any actual physical "impact" is one on which unfortunately there is a great dearth of legal precedent. At Common Law it was undoubtedly held that actual violence was necessary. "If any man," says Hale, (s) "either by working on the fancy of another, or possibly by harsh and unkind usage, puts another into such passion of grief or fear that the party dies," this, though it may be murder in the sight of God, "cannot come under the judgment of (n) 24 & 25 Vict. c. 100, s. 18. (p) Post, p. 55. (q) See Russell on Crimes, vol. i. P. 958. (r) R. v. Day, unreported. (s) Pleas of the Crown, vol. i. P. 429. felony." "The great improvements," says Stephen, (t) Formerly. commenting on this passage," which have taken place in medical knowledge since Hale's time, of course make it possible in the present day to speak much more decisively on the question whether death has been caused by a given act, or set of acts, than was formerly possible." "To shout in the ear of a sleeping man, who has certain diseases of the heart, may be as effectual a way of killing him as a stab with a knife, but at first sight such a death would not be described as being caused by any definite bodily injury. Should such a case occur in the present day I think it would be regarded as killing. (u) Where B., having in her arms an infant, was assaulted by A., and the infant was so terrified that it died within six weeks of the assault from the shock of fear, A. was held guilty of manslaughter.(x) In R. v. Pitts, (y) Erskine, J., is reported to have said in summing up, "A man may throw himself into a river under such circumstances as render it not a voluntary act, by reason of force applied either to the body or the mind. It becomes then the guilty act of him who compelled the deceased to take the step." It seems, therefore, now clear, that an offence may be At the present committed by one person against another without direct time. physical violence. Manifestly in the case of a child the effect of terror is likely to be more dangerous than in that of an adult, and the instances in which "injury to health" or "unnecessary suffering" can be proved to be likely to supervene as a direct consequence, must be very numerous. Briefly, then, any course of conduct likely to cause injury to a child, whether such injury be mental or physical, is, it is submitted, ill-treatment. NEGLECTS. Even at Common Law it was a misdemeanour to Common Law neglect to supply necessaries to a child, servant, or (t) History of the Criminal Law, vol. iii. p. 6. (u) History of the Criminal Law, vol. iii. p. 5. (x) Reg. v. Towers, 12 Cox, 530. liability. |