or excuse. ,, thought. If I maim cattle without knowing whose they are, Malice if I poison a fishery without knowing the owner, I do it of aforemalice, because it is a wrongful act and done intentionally." And the law also raises the presumption that every man must contemplate the necessary consequences of his acts. The doctrine of "implied malice" has even been carried so far that Implied it has usually been said that if a person in the course of committing a felony quite accidentally kill another he is guilty of murder. But great doubt has been thrown on this doctrine by Mr. Justice Stephen in the recent case of Reg. v. Serné (1). The death must take place within a year and a day from the commission of the offence, and for the purposes of this computation, the day upon which the crime was committed is counted as the first day (2). The killing of another is presumed to be murder until the contrary is shown, and the burden of proof lies on a person who has killed another to show circumstances of excuse, justification, &c., making the killing justifiable or excusable, or reducing it to manslaughter (3). malice. Attempts to murder are felonies punishable by penal servi- Attempts tude for life as a maximum penalty (4). to murder. Woundings and acts endangering life, are dealt with by 24 & 25 Woundings Vict. c. 100. and acts endanger It is a felony punishable with penal servitude for life as a ing life. maximum penalty to wound or cause grievous bodily harm to any person, or to shoot at any person, or attempt to discharge any loaded arms at him, with intent to maim, disfigure, or disable, or to resist lawful apprehension or detention. Any such acts, without the intent, are highly punishable misdemeanours. It is a felony punishable by penal servitude for life as a maximum penalty, for any woman to administer to herself, or for any other person to administer to her, a noxious drug, or to use any Procuring instrument (whether in fact she be or be not with child), with abortion. intent to procure her miscarriage; (5) and a person who procures or supplies any noxious drug or instrument knowing that the same is to be used for the above purpose is guilty of a misdemeanour and liable to five years' penal servitude. (“). Rape is the offence of having carnal knowledge of a woman Rape. forcibly and against her consent. A husband cannot be guilty, (1) C. C. C. Sessions Papers. (2) Hawk. P. C. bk. 1, c. 31, s. 9 (3) 1 Russ. Cr. 668. (') 24 & 25 Vict. c. 100. (5) 24 & 25 Vict. c. 100, s. 58. () 24 & 25 Vict. c. 100, s. 59. See Reg. v. Whitchurch, 24 Q. B. D. 420. Rape. Abduction. as a principal in the first degree, of a rape upon his wife, and a boy under the age of fourteen is conclusively presumed to be incapable of committing this crime as such a principal (1). By the Criminal Law Amendment Act, 1885 (2), a man who by personating the husband of a woman induces her to have connection with him is guilty of rape. The crime of rape is punishable with a maximum penalty of penal servitude for life (3). Another offence affecting specially the personal safety of individuals, is the abduction of females. The Offences against the Person Act (4) provides "that where any woman of any age shall have any interest (whether legal or equitable, present or future, absolute, conditional or contingent) in any real or personal estate, or shall be heiress or coheiress, or presumptive next-of-kin to any one having such interest, it shall be felony in any person who shall from motives of lucre take away or detain her against her will with intent to marry or carnally know her, or who with the like intent shall fraudulently allure, take away, or detain any such woman who shall be under the age of twenty-one years, out of the possession and against the will of her father or mother, or other person having the lawful care or charge of her; and the offending party in any of the above cases is liable to penal servitude for fourteen years, and is moreover incapable of taking any part of her property which is to be settled as may be decreed by the Court of Chancery. In these cases the wife is a competent witness either for or against the husband. The same penalty attaches to the forcible taking away or detaining against her will, a woman of any age with intent to marry or carnally know her, or to cause her to be married, or carnally known (5). It is a misdemeanour punishable with imprisonment for two years, unlawfully to take any unmarried girl under the age of sixteen years out of the possession and against the wish of her father, mother, or any person having lawful charge of her;(6) and it is no defence for the prisoner to show that he believed on reasonable grounds that the girl was over that age (7). () The consent of the woman must be unforced, and must be to the act of connection, and not given under a mistake to something else: R. v. Flattery, 2 Q. B. D. 410. (2) 48 & 49 Vict. c. 69, s. 4. 24 & 25 Vict. c. 100, s. 48. (6) 24 & 25 Vict. c. 100, s. 55. To take a girl under eighteen out of the possession and against the will of her father or mother or other person having lawful charge of her, with intent that she shall be carnally known, is a misdemeanour, punishable with imprisonment for any term not exceeding two years, with or without hard labour (1). In this case (unlike the offence of abduction noticed above) it is expressly provided that it shall be an answer if the person charged make it appear that he had reasonable cause to believe the girl eighteen or over. The Criminal Law Amendment Act, 1885 (2), enacts a variety of stringent provisions for the protection of women and girls, directed against procuration and procuring defilement of a woman or girl by threats, fraud, or the use of drugs, &c. Defilement of a girl under thirteen years of age is made a felony punishable with penal servitude for life, or for any term not less than five years, or imprisonment for any term not exceeding two years with or without hard labour (sect. 4). The defilement, or attempted defilement, of a girl between thirteen and sixteen years of age, or of any female idiot, or imbecile woman or girl, under circumstances which do not amount to rape, but which prove that the offender knew at the time of the commission of the offence that the woman or girl was an idiot or imbecile, is a misdemeanour. evidence. An important alteration in the law of evidence is made with Alteration regard to charges of defilement or attempted defilement of in law of girls under thirteen. Sect. 4 of the Act provides that where, upon the hearing of a charge under that section, the girl in respect of whom the offence is charged to have been committed, or any other child of tender years who is tendered as a witness, does not, in the opinion of the Court or justices, understand the nature of an oath, the evidence may be received, though not given upon oath, if in the opinion of the Court or justices, as the case may be, the witness is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth. The reception of the evidence so admitted is however hedged in by two safeguards: (I.) No person shall be liable to be convicted of the offence unless the testimony admitted by virtue of the section in question, and given on behalf of the prosecution, shall be corroborated by some other material evidence in support thereof, implicating the accused: (II.) Any witness whose evidence has been admitted under the section shall be liable to indictment (1) R. v. Wealand, 20 Q. B. D. 827; and see R. v. Paul, 25 Q. B. D. 202; R. v. Oven, 20 Q. B. D. 829. Common assault. Battery. Defences to charge of battery. and punishment for perjury in all respects as if he or she had been sworn. An Act entitled the Prevention of Cruelty to and Protection of Children Act, 1889 (1), renders it a misdemeanour punishable with fine and imprisonment for any person over sixteen years of age, having the custody, control, or charge of a child, being a boy under fourteen, or a girl under sixteen, to wilfully ill-treat, neglect, abandon, or expose the child, or cause or procure the child to be ill-treated, neglected, abandoned, or exposed in a manner likely to cause unnecessary suffering or injury to the health. A common assault is an unlawful attempt or offer coupled with the present power of carrying it into effect, to apply the least actual force to the person of another directly or indirectly. A. shakes his fist at B. A. commits an assault. Thus it is an assault to strike at another with a cane, with a stick, or with the fist; to draw a sword or bayonet; to throw a bottle or glass with intent to wound or strike; or present a loaded gun at a man within shooting distance; or to point a pitchfork at him when within reach of that weapon. An assault is also committed by depriving a person of his liberty without his consent. No mere words, however insulting, or provocative, can constitute an assault. A battery is where actual force is applied to the person of another directly or indirectly. A. throws a stone at B., and misses him; A. is guilty of a common assault; the stone strikes B.; A. is guilty of assault and battery. There can be no assault or battery where the person assaulted or beaten consents. Among the defences to a charge of battery may be mentioned (1) proof that the alleged battery happened by misadventure. Thus, to quote the illustration cited by Mr. Archbold, if a horse run away with his rider, and run against a man it is no battery (2); (2) that the alleged battery was merely an amicable contest; or (3), the correcting of a child by its parent, or a pupil by his master, &c., or that the alleged battery was committed in self-defence. Common assaults are often disposed of summarily by the magistrates. Assaults causing actual bodily harm are punishable in a more serious manner, viz., by penal servitude for a maximum term of five years (3). The offences of wounding, &c., have been noticed above. (1) 52 & 53 Vict. c. 44. (2) Archbold, 20th ed. p, 754, citing Gibbons v. Pepper, 2 Salk. 637. (3) 24 & 25 Vict. c. 100, s. 37. CHAPTER VII. OFFENCES AGAINST PROPERTY. Larceny may be defined as the wilfully wrongful taking pos- Larceny. session and carrying away of the personal goods of another with intent to deprive the owner of his property in them (1). Possession extends not only to those things which we hold in our hands but to things in our house, upon our land, or in the custody of our servants or agents. Property has been defined as the right to possession coupled with an ability to exercise that right (2). A person is said to have a special property in a thing when the true owner has given him a right of possession as against himself (3). A very remarkable case on the subject of larceny (4) which excited considerable interest has been recently decided. The prisoner offered to lay odds against different horses at a race meeting. The prosecutor deposited 58. with the prisoner, who told him that if the horse he backed won, he would receive 358. back besides his own 58. The prosecutor admitted in cross-examination that he would have been satisfied if he did not receive back the particular coins he so deposited, but only others of equal value. The horse, on which the bet had been made, won the race, but the prisoner departed without handing over any money. The Court decided that the prisoner was guilty of larceny. The prosecutor, said the Court, deposited the money with the (') Arch. Crim. 20th ed. p. 733, et seq., and see Reg. v. James, 24 Q. B D. 439. (2) See for an elaborate analysis of the terms "possession and " property," Stephen's Digest, 4th ed. p. 221, et seq. (3) See Stephen's Digest, 4th ed. p. 224. (4) The Queen v. Buckmaster, 20 Q. B. D. 182. The Court considered the facts in the present case somewhat |