Generally, it may be laid down, that the essential thing is the intention with which the alleged act is done, so that no matter how violent or menacing the conduct of the accused may have appeared to be, nor even how serious the injury, if it can be shown that the whole was unintentional or accidental and undesigned, there is no assault. It remains to be added on the subject of common assaults, that the party injured may proceed against the defendant summarily or by action or indictment for the same assault; but the court in which the action is brought will not compel him to make his election to pursue either the one or the other. Yet if the party has obtained a conviction beforb justices of the peace, this will be a bar to any other remedy, civil or criminal; and if the justices grant a certificate that it was not proved, or was trifling, this also, as must be quite apparent, will be a bar.
With respect to aggravated assaults, their special character arises from the great crim inality of the object intended to be effected. Thus, attempts to murder, or to do great bodily harm, to ravish, and to obstruct officers of the law in the execution of legal pro cess, are all of the nature of aggravated assaults; as are also attempts to commit rob bery or any other felony. The remedy for an aggravated assault is usually by indict ment, hut justices of the peace may also, at least in the first instance, decide some cases. In certain cases the punishment is regulated by recent statutes: thus, by the 24 and 25 Viet. cc. 96. 100, it is.enaeted that persons unlawfully and maliciously starving an apprentice or servant, whereby the life of such person shall be endangered, or the health injured, shall be guilty of a misdemeanor, and on conviction may be imprisoned, with or without hard labor, for any term not exceeding two years; and where the offense shall be against a young person under the age of 16 years, and shall amount in point of law to a felony, or to an attempt to commit a felony, or to an assault with intent to com mit a f .lony, the guardians of the union or parish, or, where there are no guardians, the overseers of tae parish, are authorized and required to prosecute, the costs of the prosecution being paid out of the common fund of such union or parish. Again, by an act of 24 and 25 Viet. c. 100, it is declared expedient to make further provisions for the punishment of aggravated assaults, and it is therefore enacted that if any person shall unlawfully and maliciously inflict upon any other person, either with or without any weapon or instrument, any grievous bodily harm, or unlawfully and maliciously cut, stab, or wound any other person, every such offender shall be guilty of a misdemeanor, and being convicted thereof shall be liable to three years' penal servitude, or to be impris oned, with or without hard labor, for a term of two years: provided, however, that nothing contained in the act shall be deemed or taken to repeal other enactments of the act, by which it is provided that if any person shall unlawfully and maliciously, by any means, wound any person, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, every such offender, being convicted thereof, shall be liable to be sentenced to penal servitude for life, or for the term of three years, or to be imprisoned, with or without hard labor, in the common jail or house of correction, for any term not exceeding two years; and, if a male, to be once, twice, or thrice publicly or privately whipped, in addition to such imprisonment, if the court shalt think fit. The only other enactment that it may be necessary to notice is
one in the same statute of 24 and 25 Viet. c. 00, which provides that any person con victed of any indecent assault, or of any assault occasioning actual body harm, shall be liable to be imprisoned for any term now warranted by law, with hard labor during the whole or part of such imprisonment.
In Scotland, the principle of tile law of assault, and of its aggravations, is very much the same as that above stated. In the Scotch system it is laid down that it is of the utmost importance in all cases of actual assault 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. There, too, the highest of all aggravations is the assault with intent to murder. It is also an aggravation that the assault has been committed in pursuance of an old grudge, and on a principle of revenge; where, also, the offense has been accompanied with an intent to compel a rise of wages, or to deter from working at a certain rate, or in pursuance of a combination entered into for these illegal purposes. Another aggravation of the offense in Scotland is its being committed by a child on its parent, by a husband on his wife, or by any person upon another within his own house, although the latter crime fatls more strictly under the antiquated term of hamesucken (q.v.). The remedy in Scotland is, as in England, by civil action of damages, and by a criminal prosecution, both being maintainable, and the latter usually at the suit of the lord advocate. as public prosecutor; but the private injured party may prosecute crim inally should the lord advocate decline to so. See, on the subject of this article gener ally, Russell On Crimes and Misdemeanors, in England, and Alison's Principles of the Scotch Criminal Law.