Bodily Harm

on her, or, if the sentence of death shall have already been passed, the sentence to be substituted for it, shall be imprisonment with hard labour for life (Sections 614-615, Criminal Code). In any case, if the jury had not been unanimous, the Court may award a sentence of hard labour for life or for a term of not less than twelve years in lieu, of the punishment of death (Sect. 504).

Unlike our law and English law, certain other codes distinguish between simple wilful homicide, which they do not visit, of course, with capital punishment, and certain other forms of aggravated wilful homicide. These aggravations are based on various considerations:

(a) The person of the victim

(b) The means- of perpetration

(c) The mode of execution

(d) The character and motive of the delinquent.

To the first species of aggravated homicides, belong those committed on the father, mother or other close relative or on certain public officers in the execution of their duties.

To the second belong homicides by poison (“of all species of death”, Blackstone wrote, “the most detestable is that of poison: because it can of all others be least prevented either by manhood or forethought”), by arson, inundation, or great public damage.

To the third belongs homicide by premeditation or accompanied with great cruelty.

To the fourth belongs homicide committed for sheer brutal wickedness, or to prepare or facilitate the commission of another crime, or to cover up or to suppress the traces of another crime.

Bodily Harm

“Whosoever, without the intent to kill or put the life of any person in manifest jeopardy, shall cause harm to the body or health of another person or shall cause to such other

person a mental derangement shall be guilty of bodily harm” (Section 220, Criminal Code).

If, where an actual bodily harm is occasioned, the intent of the perpetrator was that of causing death, then, provided the means used or the mode of perpetration might have caused death, the offence chargeable will not be that of the bodily harm, having regard to the injury actually inflicted, but that of attempted wilful homicide, having regard to the more serious effect (death) which was intended.

The fact that the law in defining this crime merely excludes the specific intent of wilful homicide, and does not mention, positively, any other criminal intent, does not mean that an intent is not necessary. Bodily harm caused unintentionally may be either purely accidental and, therefore, not criminally punishable at all or merely negligent and, therefore, punishable as involuntary. To constitute the crime of wilful bodily harm, the injury must have been caused intentionally. But the intention required is merely the ’animus nocendi’, the generic intent to cause harm, without requiring necessarily an actual intention to do the particular kind of bodily harm which, in fact, ensues. In other words, it is not essential that the intention was to produce the full degree of harm that has actually been inflicted. As we saw last year, the word “intention” in law has a much wider meaning than in philosophy, or indeed in ordinary use. It covers all consequences whatever which the doer of an act foresees as likely to result from it, whether he does the act with an actual desire of producing them, or only in recklessness as to whether they ensue or not405 .

Therefore, in the case of bodily harm, if the intent of the doer is to injure, he will answer for the harm actually caused, in application of the principle “dolus indeterminatus determinatur ab exitu” .

Now, the bodily harm may, as the law says, consist in harm to the body or health or in mental derangement. We may, therefore, here repeat what we have already said in connection with wilful homicide, that is, that provided the effect can be traced to the act of the prisoner, it makes no difference that the act operated on the mind or psyche

405 Kenny, op. cit., p. 177

of the victim causing, e.g., a shock or some other mental unsettlement rather than on the physique causing, e.g., a wound or cut or stab406 .

It likewise makes no difference that no physical violence was directly exerted on the body of the victim, for even without this (e.g., by keeping for a long time an infant in a damp and cold place, or by giving him only scent and unwholesome food) it is possible to cause the effects contemplated by the law. In all such cases the effect is always a hurt or an injury calculated to interfere with the health or comfort of the victim. The difficulties that might arise, where direct physical violence has not been used, are simply a matter of evidence which, in particular cases, may give way before the circumstances which speak for themselves407 .

It is, moreover, commonly held that it is not necessary that the injury shall have been directly caused at the hand of the offender. Thus, a man will be guilty of the offence of bodily harm if he assaults another with a weapon and the latter gets hurt in trying to snatch the weapon from the aggressor's hand to ward off the assault and defend himself. The same applies to a man who pursues another with a weapon, if the latter in running away, grasps at something which injures him. A principle which seems to be more or less to the same effect was applied in the English case of Rex v. Martin. The facts were as follows:

Shortly before the conclusion of a performance at a theatre, the prisoner with the intention and with the result of causing terror in the minds of persons leaving the theatre, put out the gaslight on a staircase which a large number of such persons had to descend in order to leave the theatre and he also, with the intention and with the result of obstructing the exit, placed an iron bar across" the doorway through which they had to pass in leaving. Upon the lights being thus extinguished a panic seized a large portion of the audience and they rushed in a fright down the staircase, forcing those in front against the iron bar. By reason of the pressure and struggling of the crowd thus crushed on the staircase, several of the audience were severely injured, and amongst them ‘A’ and ‘B’ .

406 Cfr. Carrara, Prog., Parte Speciale, Vol. II, para. 1396 407 V. Maino, op. cit., Art. 372, para. 1631