endangered; as to the insertion of these words, vide infra] (“so that the life of such apprentice or servant shall be endangered, or the health of such apprentice or servant shall have been or shall be likely to be permanently injured”); against the form [as ante, p. 810]. Add counts varying the statement of the injury sustained. Misdemeanor: penal servitude for not less than three years and not exceeding five years, or imprisonment, with or without hard labour, not exceeding two years. 24 & 25 Vict. c. 100, s. 26; 54 & 55 Vict. c. 69, s. 1, sub-ss. 1, 2 (ante, p. 235). As to fining the offender and requiring him to enter into recognizances and find sureties for keeping the peace and being of good behaviour, 24 & 25 Vict. c. 100, s. 71 (ante, p. 778). Evidence. To prove the apprenticeship, if it was by deed, produce, and prove the execution of the deed, or, in case it be in the possession of the defendant, and there be no counterpart, by secondary evidence of its contents, after due notice given to the defendant to produce it (see ante, pp. 315, 316). Legally liable.]-The legal liability of a master to provide his apprentice with necessary food, clothing or lodging will be inferred, even if it be not expressly stipulated for, from the apprenticeship itself. But in the case of neglect of a servant, an indictment against a master at common law for neglecting to provide sufficient food for his servant (see ante, p. 2) must allege that the servant was of tender years and under the dominion and control of the defendant. R. v. Ridley, 2 Camp. 650. There is a distinction between the cases of children, apprentices of tender years, and lunatics under the care of persons bound to provide for their wants and the case of a mistress and a servant of full age able to take care of herself and to withdraw herself from the service of her mistress; R. v. Jane Charlotte Smith, L. & C. 607, at p. 620; 34 L. J. (M. C.) 153 (C. C. R.), per Montague Smith, J.; and when a person, having free control of her actions and able to take care of herself, remains in a service where she is starved and badly lodged the mistress is not criminally responsible for any consequences that may ensue. Id., per Erle, C.J., L. & C. p. 625. Prove the wilful refusal or neglect of the defendant to provide the prosecutor with necessary food, etc., as stated in the indictment. Whether it be necessary to prove that by such refusal or neglect the prosecutor's life was endangered, or his health was or was likely to be permanently injured, depends upon the construction which is to be put upon the statute. If the words "so that the life of such person shall be endangered," etc., apply to all the preceding matter, such proof will be necessary; if only to the branch of the section which relates to the actual doing of bodily harm to the apprentice or servant, such proof will be unnecessary. Until there has been some decision on the subject, it will be safer to introduce the allegation between square brackets (supra), and to be prepared with evidence to sustain it. It would seem, indeed, to be the better opinion, that the words "so that the life of such person shall be endangered, etc.," override all the preceding matter, otherwise a mere single wilful refusal to provide a dinner would be within the clause. Upon an indictment for unlawfully and maliciously assaulting an apprentice or servant, it is clear that such allegation and proof are necessary. Medical aid.]-"By the general law a master was not bound to provide medical advice for his servant; yet the case was different with respect to an apprentice." R. v. Smith, 8 C. & P. 153, Patteson, J.; and see Sellen v. Norman, 4 C. & P. 80: Wennall v. Adney, 3 B. & P. 217; 6 R. R. 780 (ante, p. 2): Eversley, Dom. Rel. (2nd ed.) 868. Cruelty to apprentices under sixteen can also be dealt with under 4 Edw. 7, c. 15, s. 1 (post, p. 877). ILL-TREATMENT OF LUNATICS IN ASYLUMS, ETC. Statutes. 23 & 24 Vict. c. 75 (Criminal Lunatic Asylums Act, 1860), s. 13.]— Any superintendent, officer, nurse, attendant, servant, or other person employed in any asylum for criminal lunatics, who strikes, wounds, illtreats or wilfully neglects any person confined therein, shall be guilty of a misdemeanor, and shall be subject to indictment for every such offence, and on conviction under the indictment to fine or imprisonment, with or without hard labour, or to both fine and imprisonment, at the discretion of the court, or to forfeit for every such offence on summary conviction thereof before two justices any sum not exceeding twenty pounds, nor less than two pounds. 53 & 54 Vict. c. 5 (Lunacy Act, 1890), s. 322.]—If any manager, officer, nurse, attendant, servant, or other person employed in an institution for lunatics [which by s. 341 means an asylum, hospital, or licensed house], or any person having charge of a lunatic, whether by reason of any contract, or of any tie of relationship, or marriage, or otherwise, ill-treats or wilfully neglects a patient, he shall be guilty of a misdemeanor, and, on conviction on indictment, shall be liable to fine or imprisonment, or to both fine and imprisonment, at the discretion of the court, or be liable on summary conviction for every offence to a penalty not exceeding twenty pounds, nor less than two pounds. [This section was framed on 8 & 9 Vict. c. 100, s. 56; 16 & 17 Vict. c. 96, s. 5; and 16 & 17 Vict. c. 97, s. 123. As to its effect, see Wood Renton on Lunacy, 680. Sects. 207-229.]—Define what are licensed houses and prescribe rules for their conduct. Sect. 324-Abuse of female lunatic.]-Post, p. 906. Sect. 325.]-Prosecution only by consent of the attorney-general, or order of the commissioners of lunacy, or visitors of the asylum, etc. Sect. 341-Definitions.]-In this Act, if not inconsistent with the context: "Asylum" means an asylum for lunatics, provided by a county or borough, or by a union of counties or boroughs. "Hospital" means any hospital or part of a hospital, or other house or institution (not being an asylum) wherein lunatics are received and supported wholly or partly by voluntary contributions, or by any charitable bequest or gift, or by applying the excess of payments of some patients for or towards the maintenance, provision, or benefit of other patients. "Institution for lunatics" means "asylum," "hospital," or "licensed house." "Lunatic" means an idiot, or person of unsound mind. Indictment. (53 & 54 Vict. c. 5, s. 322, ante, p. 872.) An indictment for this offence can be framed on the precedents (ante, p. 871, and post, p. 888). Evidence. As to the evidence necessary to support an indictment for misusing a lunatic, see R. v. Pelham, 8 Q. B. 959; 15 L. J. (M. C.) 105. As to what may constitute wilful neglect, see Dent's case [1874], cited Wood Renton on Lunacy, p. 682: R. v. Hill, 50 J. P. 137. In R. v. Rundle, Dears. 482; 24 L. J. (M. C.) 129; 6 Cox, 549, it was held under 16 & 17 Vict. c. 96, s. 9 (rep.), that a husband having the care and charge of his wife, a lunatic, was not "a person having the care or charge" of a lunatic within the meaning of that enactment, which it was held did not apply to persons whose care or charge was purely of a domestic character. This case was distinguished in R. v. Porter, L. & C. 394; 9 Cox, 449 (C. C. R.); and was questioned in Buchanan v. Hardy, 18 Q. B. D. 486; 56 L. J. (M. C.) 42, and seems to be no longer an authority under the wider language of s. 322 of 53 & 54 Vict. c. 5. On a charge under this section, the lunatic is admissible as a witness if the judge considers him competent. R. v. Hill, 2 Den. 254; 20 L. J. (M. C.) 222 (see ante, p. 388; and Wood Renton on Lunacy, 683, n.). Imbecility and loss of mental power, whether arising from natural decay or paralysis, softening of the brain, or other natural cause, although unaccompanied by frenzy or delusion of any kind, was held to constitute unsoundness of mind amounting to lunacy, within 8 & 9 Vict. c. 100 (rep.). R. v. Shaw, L. R. 1 C. C. R. 145; 37 L. J. (M. C.) 112; 11 Cox, 109. ABANDONING OR EXPOSING CHILDREN UNDER TWO YEARS OF AGE Statute. 24 & 25 Vict. c. 100 (Offences against the Person Act, 1861), s. 27Abandoning, etc., child under two years.]-Whosoever shall unlawfully abandon or expose any child, being under the age of two years, whereby the life of such child shall be endangered, or the health of such child shall have been or shall be likely to be permanently injured, shall be guilty of a misdemeanor, and being convicted thereof shall be liable ... to be kept in penal servitude. [This section was new law in 1861. In practice it is superseded by the Prevention of Cruelty to Children Act, 1904 (4 Edw. 7, c. 15), s. 1, post, p. 877.] . 4 Edw. 7, c. 15, ss. 12-18, sched. 1—Procedure and evidence.]—See post, pp. 882-885, 887. Indictment. Commencement as ante, p. 871]-unlawfully did abandon and expose ("abandon or expose ") a certain child called J. N., then being under the age of two years, whereby the life of the said child was endangered [or "whereby the health of such child was likely to be permanently injured"]; against the form [as ante, p. 840]. Add counts under 4 Edw. 7, c. 15, s. 1 (post, p. 877). If the offence is continuous it is not necessary to specify the date of the acts alleged to constitute the offence. 4 Edw. 7, c. 15, s. 18 (4) (post, p. 885). 'Abandoning" seems to be a continuous offence. See R. v. White (infra). Misdemeanor: penal servitude for not less than three years and not exceeding five years, or imprisonment, with or without hard labour, not exceeding two years. 24 & 25 Vict. c. 100, s. 27; 54 & 55 Vict. c. 69, s. 1, sub-ss. 1, 2 (ante, p. 235). As to fining the offender and requiring him to enter into recognizances and find sureties for keeping the peace and being of good behaviour, 24 & 25 Vict. c. 100, s. 71 (ante, p. 778). Evidence. In order to sustain an indictment under this section it is only necessary to prove that the defendant wilfully abandoned or exposed the child mentioned in the indictment; that the child was then under two years of age (as to presumption of age, see 4 Edw. 7, c. 15, s. 17, and sched. 1 (post, pp. 884, 887); and that its life was thereby endangered, or its health had been or then was likely to be permanently injured. The following facts were held to warrant a conviction on an indictment framed on this section charging the prisoners with abandoning and exposing a child under the age of two years, whereby its life was endangered. One of the prisoners was the mother of a weakly bastard child. When it was about five weeks old, both the prisoners put the child in a hamper at S., wrapped up in a shawl and packed with shavings and cotton wool, and the mother took the hamper from S. to the booking-office of the railway station at M. (a distance of about four miles) and there left it, having paid the carriage of the hamper to G. The hamper was addressed to the lodgings of the child's father at G., and he had told the mother, previous to the child's birth, that if she sent it to him he would keep it. The mother told the clerk at the station to be very careful of the hamper, and to send it by the next train, which was done in ten minutes from the time of its delivery at the station. Upon the address were the words "With care; to be delivered immediately." The hamper was, as above mentioned, duly sent by train, and was delivered at its address in G. in little less than an hour from the time of its being despatched from M. On its being opened the child was alive and lived for three weeks afterwards, when it died from causes not attributable to the conduct of the prisoners or either of them. R. v. Falkingham, L. R. 1 C. C. R. 222; 39 L. J. (M. C.) 47; 11 Cox, 475. A woman who was living apart from her husband, and who had the actual custody of their child, under two years of age, brought the child, on the 19th October, and left it outside the father's door, telling him she had done so. He knowingly allowed it to remain lying outside his door from about 7 p.m. till 1 a.m., when it was removed by a constable, being then cold and stiff. Upon this state of facts, it was held, that although the father had not the actual custody and possession of the child, yet, as he was by law bound to provide for it, his allowing it to remain where he did was an abandonment and exposure of the child by him, whereby its life was endangered, within the meaning of 24 & 25 Vict. c. 100, s. 27. R. v. White, L. R. 1 C. C. R. 311; 40 L. J. (M. C.) 134; 12 Cox, 83. As to the cases in which an indictment for murder or manslaughter will lie, where death ensued from the abandonment or exposure, see ante, pp. 783, 803. See also ante, pp. 1, 2, as to the cases in which an indictment for a misdemeanor of this nature would lie at common law. ACTUAL BODILY HARM TO CHILD OR YOUNG PERSON ENGAGED IN Statutes. 42 & 43 Vict. c. 34 (Children's Dangerous Performances Act, 1879), s. 3— Offence punishable on summary conviction.]—Any person who shall cause any child under the age of fourteen years to take part in any public exhibition or performance whereby, in the opinion of a court of summary jurisdiction, the life or limbs of such child shall be endangered, and the parent or guardian, or any person having the custody of such child, who shall aid or abet the same, shall severally be guilty of an offence against this Act, and shall on summary conviction be liable for each offence to a penalty not exceeding ten pounds. Indictable misdemeanor.]—And where in the course of a public exhibition or performance which in its nature is dangerous to the life or limb of a child under such age as aforesaid taking part therein, any accident causing actual bodily harm occurs to any such child, the employer of such child shall be liable to be indicted as having committed an assault; and the court before whom such employer is convicted on an indictment shall have the power of awarding compensation not exceeding twenty pounds, to be paid by such employer to the child, or to some person named by the court on behalf of the child, for the bodily harm so occasioned: Provided that no person shall be punished twice for the same offence. Sect. 4-Evidence of age of child.]-Whenever any person is charged with an offence against this Act in respect of a child who in the opinion of the court trying the case is apparently of the age alleged by the informant, it shall lie on the person charged to prove that the child is not of that age. [Cf. 4 Edw. 7, c. 15, s. 17, post, p. 884.] 60 & 61 Vict. c. 52 (Dangerous Performances Act, 1897), s. 1-Extension of the Act of 1879.]-The Children's Dangerous Performances Act, 1879, shall apply in the case of any male young person under the age of sixteen years, and any female young person under the age of eighteen years, in like manner as it applies in the case of a child under the age of fourteen years. Sect. 2-Limitation on prosecution.]—(1) Except where an accident causing actual bodily harm occurs to any child or young person, no prosecution or other proceeding shall be instituted for an offence against the Children's Dangerous Performances Act, 1879, as amended by this Act, without the consent in writing of the chief officer of the police area in which the offence is committed. (2) For the purposes of this section the expression "chief officer of police," (a) with respect to any place in England other than the City of London, has the meaning assigned by the Police Act, 1890; (b) with respect to the City of London means the Commissioners of City Police. [Apparently the consent must be given before any proceedings are taken. See Thorpe v. Priestnall [1897] 1 Q. B. 159.] |