flicted to prevent apprehension, will not take the case out of the statute, though the intent laid be to inflict grievous bodily harm; for the twelve Judges have held that if both intents existed, it was immaterial which was the principal and which the subordinate one.1

3

Where the point is whether the shooting was designed or accidental, it has been held by all the Judges, that evidence may be given to shew that the prisoner, at another time, had shot intentionally at the same person, the two acts being within a quarter of an hour from each other, and part of one and the same transaction. Where the intent charged is to do grievous bodily harm, it is immaterial whether such harm has actually been done or not, and general malice is sufficient under the statute, without any particular ill-will at the person injured, or though the wound was intended for another person. If several persons are out for the purpose of committing a felony, and, upon the alarm being given, they all run different ways, and one maim a pursuer, to avoid being taken, the others are not to be considered as implicated in that act; but if the prisoners came with the same illegal purpose, and all prepared and determined to resist, the act of one will fix guilt upon all. Where a party is present aiding and abetting, it is not necessary that his should be the hand by which the injury is inflicted, and, therefore, where several persons were present, knowing and abetting where one fired, the Twelve Judges were unanimously of opinion that they were all brought under the statute.5

1 Rex v. Gillon, Russell, i. 599.—2 Rex v. Voke, Russell, i. 600.—3 Rex v. Hunt, Russell, i. 600.—1 Rex v. White and Richardson, 1806, Russell, i. 602. 5 Rex v. Towle and Others, Russell, i. 603.

CHAPTER V.

OF ASSAULT AND REAL INJURY.

ASSAULTS are of various degrees of atrocity, according to the intent of the guilty party, the degree of injury which he has inflicted, and the quality or situation of the person assailed. Assaults with intent to murder have been already considered, both at common law and under the statutes. But besides this highest of all aggravations, assault may be accompanied by other intents or qualities, which magnify its atrocity, and are justly considered as increasing the amount of punishment by which it is to be visited.

1. The crime of assault is held to be committed, if violence against the person has been attempted, though it has failed in producing actual injury.

The crime of assault does not require for its completion the application of any actual violence to the person; it is sufficient if such was intended, and the individual aimed at has incurred alarm and apprehension on that account.1 Thus the shooting at, or thrusting at with a sword, constitute the crime, though the pistol miss its aim, or the sword do not reach the person.2 Farther, the same will hold if blows be struck with the fist at the person, though they fall short and do not take effect; or even if a gun be levelled, although it be not primed or the trigger drawn. This last point was unanimously determined in an indictment for assault by the Court of Justiciary, upon a bill of suspension from a judgment of the Sheriff of Edinburgh, who held that a verdict finding the pannel guilty of assault, by levelling a gun which was not primed, and without any attempt to draw the trigger, was a good conviction.1 Certainly

1 Hume, i. 329.-2 Ibid.-3 Procurator-Fiscal of Forfarshire v. Stewart, 16th November 1829. Procurator-Fiscal of Edinburgh v. Hog, February 6. 1831, unreported.

this was carrying the principle as far as it could well

go; and a greater length than, but for that decision, would seem consistent with the distinction between the perpetration of a crime and the separate offence of attempt to commit it.

The rule is the same in England. An assault with them is the attempt or offer with force and violence to do a corporal hurt to another, as by striking at him with a stick or other weapon, or without a weapon, though the party striking misses his aim. So drawing a sword or bayonet, holding up the fist in a menacing manner, presenting a gun at a person within gunshot, pointing a pitchfork at a person within reach, or any similar act as denote an intention, coupled with ability to use actual violence, will be held to amount to assault.1 But no words, how provoking soever, will amount to assault.2

2. In judging of the defence of provocation, the same rule is to be followed as in cases of homicide; viz. that words will not justify blows, nor blows with the fist the use of a lethal weapon.

No words, how violent or contumelious soover, will justify a violent invasion or battery of the person; the first blow is the material point to which the law looks, which immediately excites the most indignant feelings, and prompts by an impulse often irresistible to immediate retaliation. Innumerable cases, accordingly, have occurred in which this defence has been either repelled as irrelevant, or passed over as altogether unworthy of notice :1 November 7. 1712, Joseph Skinner; George Douglass, January 1725; Andrew Macpherson, January 13. 1755.5

But though words will never justify blows, or relieve from every species of punishment for the assault which follows, yet it is not to be understood that they will not sometimes alleviate the offence. Certainly it is not to be denied that violent verbal abuse, as it extenuates the guilt, so it may diminish the pains of assault. So it was found in the case of Alexander Lockhart, June 23. 1746, where a proof of reproachful language was allowed to the effect of alleviating the charge. In

6

1 Hawkins, i. c. 62, § 1; Blackett, 120; Russell. i. 604.-2 Ibid.; Hawkins; Ibid.-3 Hume, i. 333.— Ibid.—5 Ibid.—6 Maclaurin, No. 51; Hume, i.

334.

1

like manner, in the case of Ensign Monro and others, 9th December 1700, the defence that the pannel had been called the son of a whore, without any provocation, was sustained to the effect of alleviating the punishment. In modern practice, the extent of verbal abuse which precedes an assault is frequently the subject of consideration in alleviating punishment, although, from the whole circumstances of the case being at once laid before the jury, there is seldom to be found an interlocutor of relevancy precisely defining its legal effect.

3. In all cases of assault, it is of the utmost importance to ascertain who struck the first blow; and the party who receives it will be excused for retaliating, if he do not exceed the just and fair measure of resentment.

"Common sense, not less than legal principle, require that a person who is assailed by actual blows should be permitted to defend himself; and if the assailant be injured in the struggle, he alone is answerable for the consequence. So it was found in a great variety of cases given by Baron Hume; but it is unnecessary to quote authority on a subject daily practised in all criminal courts.

3

But, though fully justified in retaliating, the pannel must not carry his resentment such a length as to become the assailant in his turn, as by continuing to beat the aggressor after he has been disabled or has submitted, or by using a lethal or ponderous weapon, as a knife, poker, hatchet, or hammer, against a fist or cane, or, in general, by pushing his advantage in point of strength or weapons to the uttermost. In such cases the defence degenerates into an aggression, and the original assailant is entitled to demand punishment for the new assault committed on him after his original attack had been duly chastised. Accordingly, in the noted case of Captain Charteris, August 4. 1707, a violent assault with a horsewhip and a sword was found sufficiently elided by a box on the ear, and a seizure of the sword, "except as to the wounding with the sword." So also, in the case of Alexander Haliburton, it was not found sufficient to exculpate that the pannel had been knocked down and pushed out of the room, in respect that he

1 Hume, i. 334.—2 Ibid.—3 Ibid.— Ibid. i. 335.—3 Ibid.—6 Ibid.

M

had taken too severe revenge by striking on the head and thrusting in the mouth with a staff shod with iron.1

In modern practice, instances daily occur of the application of this rule. Thus, in the case of James Brown, Aberdeen, April 1829, it appeared that the parties had an altercation in the evening, in the course of which blows were exchanged; but the pannel having in the middle of it struck with a knife, he was convicted, and sentenced to six months' imprisonment.2

4. Nothing is relevant as an alleviation of an assault but what occurred de recenti before the injury which is the subject of inquiry; it being rather an aggravation than an alleviation of assault that it is committed in pursuance of an old grudge, and on a principle of revenge.

If the law allow retaliation, it is with reluctance, and out of regard to the frailty of human nature, which is apt to be overborne by the heat of blood on a sudden injury to the person. In no case, therefore, will the law pardon an assault which is committed ex intervallo, after lapse of sufficient time for Reason to have resumed her seat. In cases of homicide, wherever the injury has been occasioned by cold-blooded revenge, the case is deemed murder; and in like manner, in assaults, the appearance of a cold-blooded determination to wreak resentment is an aggravation of the offence.3

It is not to be supposed, however, that the rule is to be followed so strictly as to exclude the consideration of every thing which has occurred prior to the assault. There is a certain latitude in the legal phrase ex incontinenti, which makes it admissible to alleviate, if, in the whole circumstances of the case, the pannel was in unavoidable heat of blood when he struck, even although the provocation was not received at that very hour. "Dictio incontinenti," says Carpsovius, "non præcise de momento temporis est intelligenda, sed cum aliquo spatio temporis est accipienda, quod neque maximum neque minimum sit, et quod magis intellectu percipi, quam elocutione exprimi possit.'

In judging of the time within which proof of provocation

1 Hume, i. 335.-2 Unreported.-3 Hume, i. 386.- Carpsovius, pars i. quæst. 31. No. 10.