PUNISHMENT. SODOMY. parties. The punishment is death, but it is the practice to restrict the pains of law, and the penalty usually inflicted is penal servitude for life. SODOMY. Unnatural connection between males is punishable Applies to both not only as regards the assailant, but also as regards the other party, if consenting (1). The offence is capital, but it is the practice to restrict the pains of law. PUNISHMENT. ATTEMPT. Attempting to commit the act is punishable by penal servitude or imprisonment (2). BESTIALITY. BESTIALITY. ATTEMPT. LEWD, INDECENT, AND LIBIDINOUS PRACTICES. Connection with inferior animals is a capital crime (3), but it is the practice to restrict the pains of law. Attempts are also punishable arbitrarily (4). INDECENT PRACTICES. The term "Lewd, Indecent, and Libidinous Practices" is applied to filthy conduct towards children, committed to gratify lewdness, and tending to corrupt the morals of the young, though there be no assault, strictly speaking (5). Sometimes, and particularly in the case of boys, the word abominable" is added. As regards females, exposure of person before young girls, or improper handling of them, are instances of 1 Hume i. 469, and case of Swan and Little there.-Alison i. 566. 2 Will. Simpson and Ralph Dods, H.C., Dec. 29th 1845; 2 Broun 671. 3 Hume i. 469, 470, and cases of Mitchell Love: Weir: Fotheringham and Robertson there. -Alison i. 566, 567. 4 Hume i. 470, case of Oliphant there. Alison i. 567.-John Pottinger, H.C., Nov. 23d 1835; 1 Swin. 5 and Bell's Notes 2.-Jas. M'Givern, H.C., May 16th 1845; 2 Broun 444. 5 Hume i. 309, 310.-Alison, i. 225, 226. AND LIBIDINOUS this offence (1). Where the villainy has reached the LEWD, INDECENT, point of inducing children to commit indecencies, the PRACTICES. charge generally takes the form of Seducing and Seducing and "debauching the minds of girls under the age of children. puberty (or young boys') to lewd, indecent, and "libidinous practices, and using lewd, indecent, and "libidinous behaviour toward them" (2). debauching under puberty. weak intellect. In the case of females, charges of this sort where Female must be there is no assault, are not generally applicable to girls above twelve years of age (3). But it is thought that a case might occur in which a man taking advantage of a person known to him to be weak in Case of person of intellect, though above puberty, would be held as guilty as if his victim were younger (4), in accordance with the rule by which rape is committed in the case of a female of weak intellect, although her physical resistance is not so great as would be necessary to constitute that crime in the ordinary case (5). In the Puberty not the case of boys, there are obvious reasons why mere of males. puberty should not be made the limit of a charge of this sort (6). No consent on the boy's part can alter the estimate to be formed of such wickedness as may be included in offences of this kind, and where the boy is old enough to consent, the result may be, that instead of there being no offence, as in the case of females, the act becomes a crime in both parties. 1 The cases of the latter description, or of both combined, which have occurred are unfortunately too numerous, so much so that to quote them would occupy too much space. That the former description of conduct, though seldom occurring alone, is of itself relevant to infer punishment is undoubted. See Mackenzie and others v. Whyte, H.C., Nov. 14th 1864; 4 Irv. 570 and 37 S. J. 68 (Lord Justice Clerk Inglis' opinion). 2 Malcolm M'Lean, July 17th 1838; Bell's Notes 86. 3 Rob. Philip, H.C., Nov. 2d 1855; 2 Irv. 243 and 28 S. J. 1. 4 See Rob. Philip, H.C., Nov. 2d 1855; 2 Irv. 243 (Lord JusticeClerk Hope's observations and charge). The principal objection in this case was that the libel gave no notice of any special circumstances. 5 Hugh M'Namara, H.C., July 24th 1848; Ark. 521.-Will. Clark, Perth, April 12th 1865; 5 Irv. 77 and 37 S. J. 417. 6 And. Lyall, Perth, April 26th 1853; 1. Irv. 218, and observation on this case by Lord Justice-Clerk Hope in the case of Rob. Philip, H.C., Nov. 2d 1855; 2 Irv. 243.See also David Brown, H.C., July 15th 1844; 2 Broun 261. limit in the case INDECENT Exposure of AGGRAVATION. pupil. "In All shamelessly indecent conduct is criminal. decent Exposure" is not in itself a point of dittay (1). Such offences are usually described in some such form as "feloniously and publicly exposing the private parts "of the body in a shameless and indecent manner" (2). And the question whether the acts done constitute the offence, depends on two elements-the impropriety itself, and its effect on the person to whom the exposure is made. Where a complaint set forth only that at a certain place the accused did "wickedly and feloniously expose "their persons in an indecent and unbecoming manner, "and did take off their clothes and expose themselves ". . . in a state of nudity, to the annoyance of the lieges," without stating what individuals were annoyed, or how the lieges were annoyed, or that the place was public, it was held irrelevant (3). Besides the aggravation of previous conviction, offences of this sort may be aggravated by the position Teacher abusing of the parties, as, for example, the offender being the teacher of the victim (4). And probably any similar situation of trust, such as the case of a servant having the charge of children in the absence of their parents or the like, would be held to constitute an Infecting with aggravation. It is also an aggravation that venereal Is it aggravation disease is communicated to the child (5). The questhat act done be- tion has not been decided, whether it aggravates disease. fore other children. an indecent offence, that it is perpetrated in the presence of other children than the child abused (6). 1 Mackenzie v. Whyte, H.C., 2 Geo. Smyth, July 20th 1819; 3 Mackenzie v. White, H.C., Nov. 4 David Brown, H.C., July 15th 1844; 2 Broun 261. 5 Jas. Mack, Glasgow, Dec. 22d 1858; 3 Irv. 310. (In this case the aggravation was held irrelevantly laid, there being no statement of it in the major, but no doubt was thrown upon the competency of charging such a fact as an aggravation, and to do so is matter of frequent practice. 6 Alex. Low, Perth, Oct. 11th 1858; Irv. 185 and 31 S. J. 31.See also Rob. Philip, H.C., Nov. 2d 1855; 2 Irv. 243.-John M'Que, Glasgow, Dec. 27th, 1865; 1 S. L.R. 97. It is difficult to see how this could be charged as an AGGRAVATION. aggravation. And there is no necessity for it, as it is easy where such shamelessly indecent conduct has been committed in abusing one child, as to injure the morals of other children present, to charge this either as shameless exposure, or as an act tending to debauch the minds of children. The punishment is either imprisonment or penal PUNISHMENT. servitude. DEALING IN OBSCENE WORKS. CULATING, OR SALE. To publish, circulate, or expose for sale any obscene PUBLISHING, CIRwork devised and intended to corrupt the morals of the EXPOSING FOR community, and to create inordinate and lustful desires, is an offence (1), the punishment being penal servitude or imprisonment. BLASPHEMOUS OFFENCES. PHEMY. It is not usual now to prosecute for spoken blas- SPOKEN BLASphemy, except summarily as a breach of public order. But it cannot be doubted that any deliberate and flagrantly blasphemous conduct would still be considered a proper subject for trial in the higher Courts. The only cases which have occurred in later times been charges of publishing or exposing for sale phemous works, intended to asperse, vilify, ridicule, and bring into contempt the Holy Scriptures or the Christian Religion (2). 1 Henry Robinson, H.C., July 24th and Nov. 9th 1843; 1 Broun 590 and 643. 2 Hume i. 571, cases of Sheels: Marshall and Wright and Affleck in note b.-Alison i. 643, 644 (On p. 644 Sir Archibald Alison gives a have PUBLISHING BLASPHEMOUS blas- WORKS. reference to Hume i. 573. It should PUNISHMENT. The punishment of blasphemy is imprisonment or fine, or both (1.) PROFANITY. Cursing. Breach of Disturbing worshi Sometimes charged as breach of peace. PROFANITY. Profanity by cursing and swearing is never prosecuted now, except as part of such disorderly conduct as is punished as a police offence. Profanity by breaking the Sabbath day is seldom made the subject of prosecution (2), and it has been declared to be a charge which it would require a very strong case to justify (3), But the law against profanity by keeping open shop on Sunday is still in force (4), and profane conduct by disturbing public worship or those assembled for public worship, is punishable as profanity (5). Sometimes, though this term is not used, similar offences are tried. In one case the charge was breach of the peace, aggravated by its being committed wilfully and maliciously on the Sabbath day in a church in presence of the minister and congregation, and during divine worship. And a verdict affirming this charge, with the exception of the malice, was sustained. The accused had repeatedly gone to church, and after the services had begun, risen from his seat, and walked out in a noisy and irreverent manner, to the disturbance and annoyance of the minister and congregation, and to the interruption of their devotions (6). A similar charge 1 Act 6 Geo. IV. c. 47, as amended 3 Prentice and Newbigging v. 4 Bute and Thomson or Bute v. 5 Hume i. 572, 573, and cases of there. Hugh Fraser, Inverness, Sept. 19th 1839; 2 Swin. 436 and Bell's Notes 139. By Act 1587, c. 27, such conduct is punishable with escheat of moveables without prejudice to a higher punishment if great violence be shown. A prosecution under this statute has taken place in modern times. Case of Fraser supra. 6 Dougall v. Dykes, H.C., Nov. 18th 1861; 4 Irv. 101 and 34 S.J.29. |