3. Insults, Threats or Bodily Harm Against Persons Charged with a Public Duty

"The Police vs. Arcicovich"81 and in re "The Police vs. Leone"82 , although these two judgments were not concerned directly with the application of section 92 but with Section 94. Of course, though the crime under Section 92 does not arise, according to this doctrine, where the threat or insult is committed in the absence of the Judge, Magistrate or other judicial functionary, the offence of insult or threat under Sections 863, 265, 353(i)(e), as the case may be, will always remain and the offender may be punished under these provisions. In other words, where the threat or insult is committed in the absence of the functionary it is dealt with as a threat or insult against any other private individual, but of course the character of the offended may be taken into consideration in assessing an adequate punishment.

Finally, we must notice that the truth of the insulting words will not justify or excuse the offender. It is the general rule in the matter of slander that “veritas convicii non excusat a convicio”. To this rule our law makes an exception and admits, subject to certain conditions, evidence of the truth of the fact attributed to the person aggrieved, when (inter alia) such person is a public officer or employee and the fact refers to the exercise of his functions. But, by the express provision of Section 266 this exception does not apply in the case of crimes under Sections 92 and 94.

If the outrage committed against a Judge, the Attorney-General, a Magistrate or a Juror, in the execution or on account of the execution of his functions or with the purpose of intimidating him or unduly influencing him in the exercise of such functions, consists in bodily harm caused upon his person, the punishment is hard labour from two to five years. When the bodily harm is of such a nature that, independently of the quality of the victim, it renders the offender liable to a higher punishment, such higher punishment shall be applied with an increase of one degree.

3. Insults, Threats or Bodily Harm Against Persons Charged with a Public Duty

Section 94 lays down:

81 Criminal Appeal, 17th November, 1909, Law Reports Vol. XX, P. IV, page 37 82 Criminal Appeal, 23rd May, 1910, Law Reports, Vol. XXI, P. IV, page 27

“Whosoever in any other case not included in Sections 92 and 93 shall revile, threaten or cause bodily harm to a person lawfully charged with a public duty, in the act of executing such duty, or on account of the execution of such duty or with intent to intimidate or unlawfully influence him in the execution of such duty, shall be liable to the punishment prescribed for the vilification, threat or bodily harm when not accompanied with the circumstances mentioned in this section, increased by one degree.

Such increase, however, shall not be made when the punishment is that established for contraventions.

Nor shall it be made or it shall be made only by the addition of a fine (multa) when the punishment is that of imprisonment or hard labour for a term not exceeding three months”.

This provision does not call for any special notice in addition to what we have already said in connection with the offence dealt with in Section 92. The material and the moral elements are the same. What is different is the person upon whom the outrage is committed. The victim in this offence can be any person lawfully charged with a public duty other than a Judge, the Attorney-General, a Magistrate or a Juror. In the old Italian text, the expression was “un individuo legittimamente incarigato di un pubblico servizio”. The same expression in the Neapolitan Code was construed as including, among others, Court Marshals, Customs Guards etc. but not also persons who may be merely materially carrying out a public work, as for instance workmen, road-keepers etc.:

“La legge mira a garantire solamente quel servizio che si deve direttamente per volere della legge o dei regolamenti di pubblica amministrazione, anche perchè qualunque altro non influisce da vicino pel mantenimento dell’ordine pubblico, e capace in consequenza non può divenire perchè tali reati da privati quali sarebbero di propria indole, degenerassero in reati contro le pubbliche amministrazioni, che soli formano oggetto delle disposizioni di questo titolo"83 .

This offence arises even though the person charged with the public duty may not at the time of discharging such duty be wearing his uniform or badge etc. of office,

83 Roberti, op. cit. para. 395. But cf. contra Maino, op. cit. art. 396, para. 1793