ous bodily injury. R. v. Union Colliery Co. (1900), 3 Can. Cr. Cas. 523 (B.C.) affirmed, 4 Can. Cr. Cas. 400, 31 Can. S.C.R. 81.

Under sec. 247 a corporation may be indicted for omitting, without lawful excuse, to perform the duty of avoiding danger to human life from anything in its charge or under its control. The fact that the consequence of the omission to perform such duty might have justified an indictment for manslaughter in the case of an individual is not a ground for quashing the indictment. Union Colliery Co. v. R. (1900), 4 Can. Cr. Cas. 400, 31 Can. S.C.R. 81.

As the Criminal Code provides no punishment for the offence as against a corporation, the common law punishment of a fine may be imposed on a corporation indicted under it. Ibid.

Where deceased was run over by a railroad car and died from his injuries a few hours afterwards, the statement of the deceased, made immediately after he was run over in answer to a question as to how it happened, was held admissible. Armstrong v. Canada Atlantic (1901), 2 O.L.R. 219; Thompson v. Trevanion (1693), Skin. 402; Aveson v. Kinnaird (1805), 6 East 188, at p. 193; Rex v. Foster (1834), 6 C. & P. 325.

In Mill v. Hawker, L.R. 9 Exch. 317, Cleasby, B., said: "When the acts are such as the corporate body is not by law qualified to do, and the corporate body, if they pretend to do them, are acting ultra vires, then the mere fact of giving a corporate form to the act does not prevent it from being the act of those who caused it to be done. It seems plain that in such a case the individuals and not the corporation do the act, and no authority is needed for that conclusion."

The latter opinion was concurred in by the Supreme Court of New Brunswick in Ex p. Baird (1897), 3 Can. Cr. Cas. 65.

The manager of a corporation is not criminally liable as for wilful disobedience of a statute under Code sec. 164 in respect of the corporation's neglect not due to any active participation on his part, to perform a statutory duty imposed upon it. R. v. Hays (1907), 12 Can. Cr. Cas. 423.

There are offences, such as assaults, which it is physically impossible for a corporation to commit, but for such offences as they can commit, whether of misfeasance or malfeasance, and for which the prescribed punishment is one which they can be made to endure, they are as amenable to the criminal law as are natural persons. R. v. Central Supply Association (1907), 12 Can. Cr. Cas. 371; The Queen v. The Great North of England R.W. Co. (1846), 9 Q.B. 315; The Queen v. Tyler and International Commercial Co., [1891] 2 Q.B. 588-594; Pharmaceutical Soc'y. v. London and Provincial Supply Association (1880), 5 App. Cas. 857.

Some one or more officers of the corporation may also be liable upon a criminal charge arising out of the same occurrence in respect of the officer's personal misfeasance or malfeasance. In a recent Ontario case, Rex v. Michigan Central Ry. (1907), in which the railway company had been indicted for a nuisance under the Revised Cr. Code sec. 221, in carrying dynamite without proper precautions whereby fatalities resulted and for criminal neglect under sec. 247 whereby human life was endangered. Mr. Justice Riddell said in delivering judgment after a plea of guilty: "If it were the fact that the board of directors or the general manager of the defendants' company, or anyone responsible, directly or indirectly, for the system carried on in the transportation of explosives, resided within the jurisdiction of this court, I should have recommended their being indicted as well as the company. It is right and just that employees of whatever grade shall be placed upon trial when any negligence of theirs caused wounds or death, and the higher officers through whom a defective system is put on or kept in operation should not escape."

In Ex parte Brydges (1874), 18 Lower Canada Jurist 141, the applica

Duty to avoid omis

sions dangerous to life.

Causing

tices or

servants.

tion was upon the return of rules nisi to quash a coroner's inquisition (which then had an effect similar to an indictment) and for the discharge of Mr. Brydges' recognizance, under the following circumstances:-A man named Cauchon had been killed by a G.T.R. train at a level crossing. Mr. Brydges was the managing director of the railway and on complaints made that the crossing was particularly dangerous, had admitted the fact and promised the Attorney-General that he would have a watchman placed there. He did not place a watchman as promised and the fatality to Cauchon resulted. The finding of the coroner's jury was quashed because it was insufficient in form and did not sufficiently charge a criminal offence. Mr. Justice Ramsay said in that case:

"I do not wish, however, to be understood to say that I think a ser vant of a railway company cannot be held liable for an error of omission as well as for an error of commission. It will not be questioned that an engine driver may be indicted for manslaughter if he causes the death of any one by omitting to take any of the usual precautions in driving his engine. A case of this kind actually occurred in 1868. It went to the petty jury and the prisoner was acquitted on the facts. His legal responsibility was not doubted. If an engine driver can thus become liable for an omission, I cannot see why a managing director should not become liable also if he omits to do what the law imposes and what he undertakes to see done. Of course the scope of his functions is a matter of fact to be considered; but names have a meaning, and managing director' may signify a good deal."

Evidence.]-See note to secs. 221 and 222.

248. Every one who undertakes to do any act, the omission to do which is or may be dangerous to life, is under a legal duty to do that act, and is criminally responsible for the consequences of omitting, without lawful excuse, to perform that duty. 5556 V., c. 29, s. 214.

Negligent omission by medical practitioner.]-A person acting as a medical man is not criminally responsible for the death of a patient occasioned by his treatment, unless his conduct is characterized either by gross ignorance of his art, or by gross inattention to his patient's safety. R. v. St. John Long, 4 C. & P. 398; Hunter v. Ogden, 31 Q.B. 132.

Dangerous medical treatment.]-See sec. 246.

Bodily injury.]-By sec. 284 every one is guilty of an indictable offence and liable to two years' imprisonment who, by any unlawful act, or by doing negligently or omitting to do any act which it is his duty to do, causes grievous bodily injury to any other person.

249. Every one is guilty of an indictable offence and liable bodily harm to three years' imprisonment who, being legally liable as master to apprenor mistress to provide for any apprentice or servant, unlawfully does, or causes to be done, any bodily harm to any such apprentice or servant so that the life of such apprentice or servant is endangered or the health of such apprentice or servant has been, or is likely to be, permanently injured. 55-56 V., c. 29, s. 217.

A verdict for common assault is maintainable upon an indictment under this section. R. v. Bissonnette (1879), Ramsay's Cases (Que.) 190.

Neglect to supply necessary food, etc.]-See sec. 243.

Permanently injured.]—It is purely a question of fact whether the acts proved shew that the health is likely to be permanently injured; and the words "permanently injured" have no technical meaning as here used. R. v. Bowman (1898), 3 Can. Cr. Cas. 410.

Homicide.

250. Homicide is the killing of a human being by another, Definition. directly or indirectly, by any means whatsoever. 55-56 V., c. 29, s. 218.

Classes of homicide.]-Homicide, when not amounting to murder or manslaughter, is divided by Russell into two classes: -(1) Excusable; (2) Justifiable. 3 Russell Cr., 6th ed., 205.

Section 252, infra, divides the subject of homicide into: (1) culpable homicide, which is sub-divided into two classes: (a) murder, (b) manslaughter; (2) homicide not culpable. The same section defines what is “culpable" homicide, and declares that homicide which is not culpable is not an offence. Excusable homicide is said to be of two sorts: Either per infortunium, by misadventure: or se et sua defendendo, upon a principle of self-defence.

Excusable homicide.]-The term excusable homicide imports some fault in the party by whom it has been committed; but of a nature so trivial that the law excuses such homicide from the guilt of felony, though in strictness it deems it to be deserving of some degree of punishment. 3 Russell Cr., 6th ed., 205, 4 Bl. Com. 188.

Matters of justification or excuse.]-Not only are the rules and principles of the common law preserved as regards any circumstances which either justify or excuse the act or constitute a defence to a charge (Code sec. 16), but various rules are laid down in Part I. of the Code, secs. 17 to 68 inclusive upon the subject.

Homicide by misadventure.]-Homicide by misadventure is where one doing a lawful act, without any intention of bodily harm, and using proper precaution to prevent danger, unfortunately happens to kill another person. 1 East P.C. 5. p. 221, and sec. 36, pp. 260, 261, Fost. 258, 1 Hawk. P.C., ch. 29, sec. 1. The act must be lawful; for if it be unlawful, the homicide will amount to murder or manslaughter, and it must not be done with intention of great bodily harm, for then the legality of the act, considered abstractedly, would be no more than a mere cloak or pretence, and consequently would avail nothing. The act must also be done in a proper manner and with due caution to prevent danger. 1 East P.C., ch. 5, sec. 36, p. 261; 3 Russell 206.

This, if people following their common occupations, use due caution to prevent danger, and nevertheless happen, unfortunately to kill any one, such killing will be homicide by misadventure. 1 Hale 472, 475, 1 Hawk. P.C. ch. 629, secs. 2 and 4. Thus, where a person, driving a cart or other carriage happens to drive over another and kill him, if the accident happened in such a manner that no want of due care could be imputed to the driver, it will be accidental death, and the driver will be excused. Fost. 263. 1 Hale 476. In a case where a person was riding a horse, and the horse, being whipped by some other person sprang out of the road, and ran

When a child be

comes a human being.

Killing child.

Homicide when culpable.

Offence.

No offence.

over a child and killed it, this was held to be misadventure only in the rider, though manslaughter in the person who whipped the horse. 1 Hawk. P.C., ch. 29, sec. 3.

Where parents, masters, and other persons having authority in foro domestico, give correction to those under their care, and such correction exceeds the bounds of due moderation, so that death ensues, the offence will be either murder or manslaughter, according to the circumstances; but if the correction be reasonable and moderate, and by the struggling of the party corrected, or by some other misfortune, death ensue, the killing will be only misadventure. 1 Hale 454, 473, 474, 4 Blac. Com. 182.

Insanity as a defence.]-See sec. 19.

Homicide in self-defence.]-See secs. 85-62.

Homicide by surgical operation.]-See sec. 65.

251. A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not.

2. The killing of such child is homicide when it dies in consequence of injuries received before, during or after birth. 5556 V., c, 29, s. 219.

Killing unborn child.]—A living child in its mother's womb or a child in the act of birth, even though such child may have breathed, is not a "human being," and the killing of such a child before it is born is not homicide. R. v. Enoch, 5 C. & P. 539; R. v. Wright, 9 C. & P. 754; R. v. Sellis, 7 C. & P. 850; Burb. Cr. Dig. 209.

But by sec. 306 every one is guilty of an indictable offence and liable to imprisonment for life who causes the death of any child which has not become a human being, in such a manner that he would have been guilty of murder if such child had been born. And by sub-sec. (2) of the same section no one is guilty of any offence who by means which he in good faith considers necessary for the preservation of the life of the mother of the child causes the death of any such child before or during its birth.

252. Homicide may be either culpable or not culpable. 2. Homicide is culpable when it consists in the killing of any person, either by an unlawful act or by an omission, without lawful excuse, to perform or observe any legal duty, or by both combined, or by causing a person, by threats or fear of violence, or by deception, to do an act which causes that person's death, or by wilfully frightening a child or sick person. 3. Culpable homicide is either murder or manslaughter. 4. Homicide which is not culpable is not an offence. 55-56 V., c. 29, s. 220.

Code secs. 247 and 252 do not extend the criminal responsibility of corporations beyond what it was at common law. R. v. Great West Laundry Co. (1900), 3 Can. Cr. Cas. 514 (Man.). See note to sec. 247.

Murder.]-Circumstances under which culpable homicide is murder are set out in secs. 259 and 260.

Manslaughter.]-Culpable homicide not amounting to murder is manslaughter, (sec. 262), and the circumstances which reduce to manslaughter or homicide which otherwise would be murder are stated in sec. 261.

253. Procuring by false evidence the conviction and death Procuring of any person by the sentence of the law shall not be deemed death by to be homicide. 55-56 V., c. 29, s. 221.

Perjury or subornation of perjury committed in order to procure the conviction of a person for any crime punishable by death is a crime punishable with imprisonment for life. Section 174(2).

false evidence.

254. No one is criminally responsible for the killing of Death withanother unless the death takes place within a year and a day of in a year the cause of death.

and a day.

2. The period of a year and a day shall be reckoned inclusive How of the day on which the last unlawful act contributing to the reckoned. cause of death took place.

3. Where the cause of death is an omission to fulfil a legal Idem. duty the period shall be reckoned inclusive of the day on which such omission ceased.

4. When death is in part caused by an unlawful act and in Idem. part by an omission, the period shall be reckoned inclusive of the day on which the last unlawful act took place or the omission ceased, whichever happened last. 55-56 V., c. 29, s. 222.

At common law.]-If the death takes place after the expiration of a year and a day from the time the deceased was wounded, the law presumes that his death had proceeded from some other cause. I Hawk., ch. 23, sec. 90; 1 East P.C. 343.

The prisoner was convicted of manslaughter in killing his wife, who died on November 10, 1881. The immediate cause of her death was acute inflammation of the liver, which the medical testimony proved might be oc casioned by a blow or a fall against a hard substance. About three weeks before her death the prisoner had knocked his wife down with a bottle; she fell against a door and remained on the floor insensible for some time; she was confined to her bed soon afterwards and never recovered. Evidence was given of frequent acts of violence committed by the prisoner upon his wife within a year of her death, by knocking her down and kicking her in the side. On questions reserved, whether the evidence was properly received of assaults and violence committed by the prisoner upon the deceased prior to the date of death or prior to the occasion on which he had knocked her down with the bottle, and whether there was any evidence to leave to the jury to sustain the charge, it was held by the Supreme Court of Canada, affirming the judgment of the Supreme Court of New Bruns wick, that the evidence was properly received and that there was evidence to submit to the jury that the disease which caused her death was produced by the injuries inflicted by the prisoner. Theal v. The Queen, 7 Can. S.C.R. 397.