were to find that a person was attempting to rob it, and he could not prevent him from stealing the property, otherwise than by taking him into custody, the person in charge of the till might have an implied authority from his employer to arrest the offender; or if the clerk had reason to believe the money had been actually stolen and he could get it back by taking the thief into custody, and he took him into custody with a view of recovering the property taken away, that also might be within the authority of a person in charge of the till. But there is a marked distinction between an act done for the purpose of protecting the property by preventing a felony or of recovering it back, and an act done for the purpose of punishing the offender for that which has already been done. The person having charge, etc., has no implied authority to take such steps as may be necessary for the purpose of punishing the offender. The principle governing the subject is: there is an implied authority to do all those things that are necessary for the protection of property entrusted to a person, or for fulfilling the duty which a person has to perform. (a)

Where a man is himself assaulted by a person, disturbing the peace in a public street, he may arrest the offender and take him to a peace officer to answer for a breach of the peace. (b)

The fact that a party is violently assaulting the wife and child of another is no legal justification for the latter, not being a peace officer, breaking into the house of the former in order to prevent the breach of the peace. (c)

The prisoner assaulted a police constable in the execu tion of his duty. The constable went for assistance and,

(a) Allen v. L. & S. W. Ry. Co. L. R. 6 Q. B. 68-9, per Blackburn, J. (b) Forrester v. Clarke, 3 Ŭ. C. Q. B. 151.

(c) Rockwell v. Murray, 6 U. C. Q. B. 412; Handcock v. Baker, 2 B. & P.

262.

after an interval of an hour, returned with three other constables, when he found that the prisoner had retired into his house, the door of which was closed and fastened; after another interval of fifteen minutes, the constable forced upon the door, entered and arrested the prisoner who wounded one of them in resisting his apprehension: Held that as there was no danger of any renewal of the original assault and as the facts of the case did not constitute a fresh pursuit the arrest was illegal. (a)

A person unlawfully in another's house, and creating a disturbance and refusing to leave the house, may be forcibly removed, but, if he had not committed an assault, the circumstances do not afford a justification for giving him into the custody of a policeman. (b)

In all cases above mentioned, if the officer has not a legal authority or executes it in an improper manner, the offence will be manslaughter only. But if there is evidence of express malice it will amount to murder. (c) So ignorance of the character in which the officer is acting, will reduce the offence to manslaughter. But if a constable command the peace or shew his staff of office, this, it seems, is a sufficient intimation of his authority. (d)

Where the fact of killing is proved, the defendant may rebut the presumption of malice arising therefrom, by proving that the homicide was justifiable or excusable.

Justifiable homicide is of three kinds :-1. Where the proper officer executes a criminal in strict conformity with his sentence. 2. Where an officer of justice, or other person acting in his aid in the legal exercise of a particular duty, kills a person who resists or prevents him from executing it. 3. Where the homicide is committed

(a) Reg. v. Marsden, L. R. 1 C. C. R. 131; 37 L. J. (M. C.) 80.

(b) Jordan v. Gibbon, 3 F. & F. 607.

(c) Arch. Cr. Pldg. 645-6.

(d) Ib. 645; and see Rex v. Higgins, 4 U. C. Q. B. O. S, 83.

in prevention of a forcible and atrocious crime, as, for instance, if a man attempts to rob or murder another and be killed in the attempt, the slayer shall be acquitted and discharged. (a)

Execusable homicide is of two kinds :-1. Where a man, doing a lawful act, without any intention of hurt, by accident kills another, as, for instance, where a man is working with a hatchet, and the head by accident flies off and kills a person standing by. This is called homicide per infortunam or by misadventure. 2. Where a man kills another, upon a sudden encounter, merely in his own defence, or in defence of his wife, child, parent, or servant, and not from any vindictive feeling, which is termed homicide se defendendo, or in self defence. (b)

The 32 & 33 Vic., c. 20, s. 7, provides, that no punishment or forfeiture shall be incurred by any person who kills another by misfortune, or in his own defence, or in in any other manner, without felony.

The 32 & 33 Vic., c. 20, s. 61, enacts that, if any woman is delivered of a child, every person who, by any secret disposition of the dead body of the said child, whether such child died before, at, or after its birth, endeavours to conceal the birth thereof, is guilty of a misdemeanor.

A secret disposition, under this Act, must depend upon the circumstances of each particular case; and the most complete exposure of the body might be a concealment, as, for instance, if the body were placed in the middle of a moor in the winter, or on the top of a mountain, or in any other secluded place, where it would not likely be found. The jury must, in each case, say whether or no

the facts shew that there has been such a secret disposi

tion. (a)

Where it appeared that the prisoner put the dead body of her child over a wall, four and a-half feet high, which divided a yard from a field. The yard was at the back of a public-house, and was used by the occupiers of that and three other houses. There was no thoroughfare into or through the yard, and no entrance into it, except by a narrow passage through the street. The prisoner did not live in any of the four houses that had the use of the yard, and she must have passed from the street into the yard, in order to throw the body over the wall. A person looking over the wall from the yard would see body; but persons going through the yard, or using it in the ordinary way, would not see the body. The field was a grass field, used by a butcher for grazing. It had no gate, except from the butcher's yard, and there was no public path through the field, nor any path in the field, that would take any one within sight of the body. No person going into the field, in their ordinary occupation, would go near the body, or see it, nor would they see it unless they went up to the part of the wall where the body lay. The body was found by chance, by a child who was picking up flowers in the field, and went accidentally to the wall. There was nothing on or over the body, and nothing to conceal it, except its situation :— Held that, under the Statute, there was evidence to go to the jury of a "secret disposition" of the body. (b)

If a woman endeavour to conceal the birth of her child, by placing the dead body under the bolster of a bed, and laying her head partly over the body, intending to remove

(a) Reg. v. Brown, L. R. 1 C. C. R. 246-7; 39 L. J. (M. C.) 94, per Bovill, C. J. (b) Ib. 244.

it to some other place when an opportunity offers, it is an offence within 9 Geo. 4, c. 31, s. 14. (a)

Upon an indictment under 7 Wm. 4, and 1 Vic., c. 85, s. 6, for causing abortion, it was proved that the woman requested the prisoner to get her something to procure miscarriage, and that a drug was both given by the pri soner, and taken by the woman, with that intent, but the taking was not in the presence of the prisoner. It, however, produced miscarriage:-Held that a conviction upon the facts above was right, and that there was an "administering and causing to be taken," within the Statute, though the prisoner was not present at the time. (b)

Rape. This offence has been defined to be the having unlawful and carnal knowledge of a woman by force, and against her will. (c)

Upon an indictment for rape, there must be some evidence that the act was without the consent of the woman, even where she is an idiot. Where there is no appearance of force having been used to the woman, and the only evidence of the connection is the prisoner's own admission, coupled with the statement that it was done with her consent, there is no evidence for the jury.(d) Where the woman consents to the connection, even though her consent is obtained by fraud, the act does not amount to rape.

A woman, while in bed with her husband, permitted the prisoner, under the belief that he was her husband, to have connection with her :-Held that, in the absence of proof that she was asleep, or unconscious, at the time the act of connection commenced, it must be taken that

(a) Reg. v. Perry, 1 U. C. L. J. 135; Dears. 471; 24 L. J. (M. C.) 137. (b) Reg. v. Wilson, 3 U. C. L. J. 19; Dears. & B. 127; 26 L. J. (M. C.) 18 See also Reg. v. Farrow; Dears. & B. 164.

(c) Russ. Cr. 904.

(d) Reg. v. Fletcher, L. R. 1 C. C. R. 39; 35 L. J. (M. C.) 172.