its back and on its thighs, and the death of the child was thereby accelerated, he was held guilty of manslaughter. For the defence it was contended that, as the father had a right to correct his child, there was no case to go to the jury; but Martin, B., after consulting with Willes, J., ruled that the law of correction had no reference to an infant of two and a half years old, but only to those capable of appreciating correction, and that, although a slight slap might be lawfully given to an infant by its mother, more violent treatment, of an infant, so young, by her father, would not be justifiable. (1)

232. Attempts to murder.-Every one is guilty of an indictable offence and liable to imprisonment for life, who does any of the following things with intent to commit murder; that is to say

(a) administers any poison or other destructive thing to any person, or causes any such poison or destructive thing to be so administered or taken, or attempts to administer it, or attempts to cause it to be so administered or taken; or

(b.) by any means whatever wounds or causes any grievous bodily harm to any person; or

(c.) shoots at any person, or, by drawing a trigger or in any other manner, attempts to discharge at any person any kind of loaded arms; or

(d) attempts to drown, suffocate, or strangle any person; or

(e) destroys or damages any building by the explosion of any explosive substance; or

(f.) sets fire to any ship or vessel or any part thereof, or any part of the tackle, apparel or furniture thereof, or to any goods or chattels being therein; or

(9.) casts away or destroys any vessel; or

(h) by any other means attempts to commit murder. R.S.C., c. 162, s. 12.

Article 713, post, provides that when the commission of an offence charged in an indictment includes the commission of any other offence, the accused may, if the whole offence charged be not proved, be convicted of any other offence so included therein, if proved. Therefore, if upon the trial of an indictment for wounding or causing grievous bodily harm with intent to murder. the intent to murder be not proved, the jury may, according to the evidence, find the accused guilty of unlawfully wounding or of unlawfully inflicting grievous bodily harm or of a common assault, each of these offences being included in the higher offence of wounding with intent to murder.

Article 712, post, provides that, when, upon a charge of attempt, the evidence establishes the commission of the full offence, the accused may either be convicted of the attempt, (for an attempt to commit a crime must necessarily precede and be included in the actual perpetration of a crime), or the court may, instead of taking any verdict on the attempt, direct the accused to be indicted for the complete offence; but after being convicted of the attempt the accused cannot be tried for the offence which he was charged with attempting to commit.

(1) R. v. Griffin, 11 Cox, 402.

It is also provided,—by article 711, post,—that when the complete commission of the offence charged is not proved, but only an attempt to commit the offence the accused may be convicted of the attempt.

Administering poison.-Where a female servant, put arsenic into coffee which she prepared for breakfast, and afterwards told her mistress that she had prepared the coffee for her, whereupon the mistress drank the coffee, it was held by Park, J., that this was an administering. (1)

Where A., knowingly, gave poison to B. to administer as a medicine to C., but, B., neglecting to do so, it was accidentally given to C., by a child, this was held to be an administering by A., just as much as if she had given it to C., with her own hands. (2)

A., having mixed corrosive sublimate with sugar, put it in a parcel, directing it to Mrs. Daws, at Townhope, and left it on the counter of B. a tradesman, who sent it to Mrs. Davis, who used some of the poisoned sugar. Gurney, B., held this to be an administering; for, although the parcel was intended for Mrs. Daws, yet, as it found its way to Mrs. Davis, it was the same in its effect, as if it had been intended for Mrs. Davis. (3) In another case, however, Parke, B., after consulting with Alderson, B., expressed the opinion that an indictment for causing poison to be taken by A., with intent to murder A., could not be sustained by evidence shewing that the poison, though taken by A., was intended for another person, and he doubted the propriety of the decision of Gurney, B., in the above case of R. v. Lewis. He accordingly directed a fresh indictment to be preferred charging the intent to be generally "to commit murder"; upon which the defendant was again tried, convicted, and sentenced. (4) But see R. v. Smith, post. p. 164, note 4.

A., administered to B. a child, two coculus indicus berries entire in the pod, with intent to murder. The kernel of this berry is poison, but the pod is not, and will not dissolve in the stomach. The two berries thus administered were, therefore, as it happened, quite harmless. It was, nevertheless, held that there was an administering of poison with intent to murder. (5)

Evidence of administering at different times may be given to shew the intent. (6)

Wounding or causing grievous bodily harm with intent to murder. -It will be seen that the above article 232 (b) is aimed against wounding or causing grievous bodily harm by any means; and therefore upon the trial of an indictment for wounding with intent to murder, the instrument or means by which the wound was inflicted need not be stated. (7)

To constitute a wound the continuity of the skin must be broken; (8) in other words, the outer covering of the body, (that is, the whole skin, not the mere cuticle, or upper skin, (9) must be divided (10). A division of the internal skin,— for instance, within the cheek or lip,-is sufficient to constitute a wound. (11)

The word "wound" includes incised wounds, punctured wounds, lacerated wounds, contused wounds, and gunshot wounds; (12) and, in short, any and

(1) R. v. Harley, 4 C. & P. 369.

(2) R. v. Michael, 2 Moo C. C., 120; 9 C. & P. 356.

(3) R. v. Lewis, 6 C. & P. 161.

(4) R. v. Ryan, 2 M. & R. 213.

(5) R. v. Cluderoy, 1 Den. 514; 2 C. & K. 907; 19 L. J. (M. C.), 119.

(6) R. v. Mogg, 4 C. & P., 364.

(7) R. v. Briggs, 1 Moo. C. C. 318.

(8) R. v. Wood, 1 Moo. C C. 278.

(9) R. v. McLoughlin, 8 C. & P., 635.

(10) R. v. Becket, 1 M. & Rob., 526.

(11) R. v. Smith, 8 C. & P. 173; R. v. Warman, 1 Den. 183; 2 C. & K. 195. (12) Shea v. R., 3 Cox, 141.

every kind of wound, no matter how or by what produced. If the skin be broken, the nature of the instrument by which it was effected is immaterial. It makes no difference whether it was done with a kick from a shoe, (1) or with a hammer thrown at and striking a person on the nose, and thus breaking the skin, (2) or by striking a man's hat violently with an air-gun and thereby causing the hat to wound the man. (3)

The following remarks, on the meaning of the word "wound," are taken from Woodman & Tidys' Forensic Medecine :

"RICHARD WISEMAN, who lived in the reigns of Kings Charles 1. and Charles II., and was Serjeant-Surgeon to the latter, defines a Wound as a solution of continuity in any part of the body suddenly made by anything that cuts or tears, with a division of the skin.' He goes on to say that by skin he understands not only the external culis, but also the inward membranes of the gullet, ventricle, guts, bladder, urethra, and womb, all of which are capable of wounds from sharp instruments, either swallowed or thrust into them.' (4)

•

**

"

In other words, the solution of continuity may affect either the skin and subjacent parts or mucous membranes, and the parts lined by them. But this definition excludes so many mechanical injuries, that it has been proposed to use the word lesion for the general term. Beck states that the term wound in legal medecine comprehends all lesions of the body, and in this it differs from the meaning of the word when used in surgery. The latter only refers to a solution of continuity, while the former comprises not only these, but also every other kind of accident, such as bruises, contusions, fractures, dislocations,' &c.

“Lord Lyndhurst, Chief Baron, said- The definition of a wound in criminal cases, is an injury to the person, by which the skin is broken. If the skin is broken, and there was a bleeding, that is a wound.' (5)

"On this, Beck properly remarks, that a man may have a bone fractured from a blow, without any breaking of the skin. (6)

Dr. Taylor remarks, that Wiseman's definition would include ruptures of internal organs, such as the liver and spleen, and burns and scalds, as well as simple fractures and dislocations. On applying to three eminent surgeons, he obtained the three following definitions:

A wound is

1. A solution of continuity, from violence, of any naturally continuous parts. 2. An external breach of continuity directly occasioned by violence.

3. An injury to the organic textures by mechanical or other violence.'

The want of a legal definition formerly allowed the collar bone to be broken by a hammer or otherwise, provided the skin were not broken, and similar injuries to be inflicted, and yet the prisoner to escape, because this was not considered a wound. (7)

46

4

Now, however, these lesions would be included in the second clause of the sentence, shall by any means whatever wound, or cause any grievous bodily harm to any person, and by any means other than those specified,' etc., etc., with or without any weapon or instrument.' [See the Acts I Vict., c. 85; 14 and 15 Vict., c. 100; and 2 11, 15, and 20 of 24 and 25 Vict., c. 100]. Some medical witnesses have held that there is no wound unless the skin be completely divided (as in the case tried in 1838, at the Central Criminal Court, in which a man struck the prosecutor a severe blow on the temple with a heavy stone bottle, which was broken by the blow, but failed to divide the skin com

(1) R. v. Briggs, 1 Moo. C. C. 318.

(2) R. v. Withers, 1 Moo. C. C. 284; R. v. Payne, 4 C. & P. 558.

(3) R. v. Sheard, 2 Moo. C. C. 13: 7 C. & P. 846.

(4) Wiseman, "Chirurg. Treat." Book 5, chap. 1.

(5) Lord Lyndhurst's Rem. in Moriarty v. Brooks, 6 C. & P. 684.

(6) Beck Med. Jur. 600.

(7) Reg. v. Wood, Mathew's Dig. 415; 4 C. & P. 381.

pletely). The skin is said to be about 4 to 14 line in thickness, or from to of an inch. [Quain and Sharpey, Kölliker, &c.] Mr. Justice Talfourd held it absurd to suppose that so thin a thing as the skin could be broken internally without external wound. Analogy was against him, in the case of the inner coat of arteries, etc. Yet it is not our wish to insist upon undue refinements. It would be far better to accept the continental definition, that a wound includes any personal injury, suddenly arising from any kind of violence applied externally, whether such injury is external or internal. On the other hand, all surgeons are agreed that a division of the true skin is a wound, whether it bleeds or does not bleed. Wiseman's definition prudently includes the mucous membranes, for very serious injuries may be, and have been inflicted on the interior of the body, as in the rectum and vagina, in the throat, mouth, and nostrils, etc. But simple fractures and the like, and the rupture of internal organs, are still in a doubtful category as to being wounds or not. Yet Lord Denman's decision in the Queen's Bench, in November, 1847, includes them by implication. For in this case an application was made to the Court for a new trial, on the ground of misdirection on the part of the Chief Baron. An action was brought against a medical practitioner for negligence in the treatment of a simple dislocation of the arm. The words of the declaration were, that the plaintiff had employed the defendant, who was a surgeon, for the treatment and cure of certain wounds, fractures, bruises, complaints, and disorders.' In the application it was submitted that none of these words applied to the injury in question. Lord Denman, however, refused the rule, saying, It is rather strange that the pleader should have omitted the most appropriate word; but we think the Chief Baron was quite right.' Webster defines a wound as a hurt given to the body or animal-frame by violence: an injury; a cut; a slash; laceration.' So Milton of the Fall:

"

Earth felt the wound, and Nature from her seat
Sighing through all her works, gave signs of woe,
That all was lost."

"We believe it would not be difficult to multiply quotations from the poets to show that the word wound is generally used in the sense of a lesion or injury. And although in simple fractures, the judges formerly held that these were not wounds [as in Rex v. Wood, quoted above]; yet several recent decisions of the judges (Chief Justice Denman, Justice Parke, &c.,) (1) have overruled this, and held fractures of the lower jaw, skull &c., without bloodshed, to be wounds. There must be a wounding; but if there be a wound (whether there be effusion of blood or not), it is within the statute, whether the wound is internal or external.' -Justice Parke.

"So that, as Dr, Taylor remarks, it may be reasonably supposed that ruptures of internal organs, as well as simple fractures and dislocations, will be considered as wounds." (2)

It is not necessary that the wound should be in a vital part; for the real question is not what is the wound actually given, but what wound was intended to be given. (3)

Shooting with intent to murder.-Where a defendant was charged with wounding T., with intent to murder him, and the evidence shewed that the defendant's intention was to murder M., and that he shot at and wounded T., supposing him to be M., and the jury found that he intended to murder the man at whom he shot, supposing that he was M., the court held the conviction right: (4)

(1) See Reg. v. Smith, 8 C. & P. 173 ; R. v. Warman, I Den. 183; 2 C. & K. 195. (2) Woodman & Tidy, For. Med. 1044, 1045.

(3) R. v. Hunt, 1 Moo, C. C. 93; R. v. Griffith, 1 C. & P. 298.

(4) R. v. Smith, Dears, 559; 25 L. J. M. C.) 29; Arch. Cr. Pl. & Ev. 21 Ed. 750; See also P. v. Torres, 38 Cal. 141; and Callahan v. S. 21 Ohio St. 306; 2 Bish New Cr. L. Com. s. 741.

A person, who fired a loaded pistol into a group of people, not aiming at any particular one, and who hit one of such group, was held guilty of shooting at the person he hit, with intent to do grievous bodily harm to that person. (1)

If A. draw a loaded pistol from his pocket for the purpose of murdering S., but, before he can do anything further in pursuance of his purpose, some one snatches the pistol from his hand, it seems that he would be guilty of an attempt; (2) and at all events, if he put his finger on the trigger, and tried to pullit, and was only prevented from doing so by forcible interference of bystanders he would be guilty of the offence. (3)

Under article 3 (0) the expression “ loaded arms" means and includes “any gun, pistol or other arm loaded with gun powder, or other explosive substance, and ball, shot, slug or other destructive material, or charged with compressed air and ball, shot, slug or other destructive material."

For the definition of an attempt, see article 64, and full comments thereon, ante p. p. 40-41.

Subsection (h) of article 232, which is a provision similar to section 15, 24-25 Vict., c. 100, embracing as it does all attempts, by any other means, to commit murder, will include all those cases where machinery used in lowering miners into mines is injured with intent that it shall break and precipitate the miners, who may be passing up or down, to the bottom of the pit and also all cases where steam engines are injured for the purpose of killing any one, as well as the cases of sending or placing infernal machines with intent to murder. (4)

223. Threats to murder.-Every one is guilty of an indictable offence and liable to ten years' imprisonment who sends, delivers or utters, or directly or indirectly causes to be received, knowing the contents thereof, any letter or writing threatening to kill or murder any person. R.S.C., c. 173, s. 7.

Under article 3 (ee) " writing " includes any mode in which, and any material on which, words or figures, whether at length, or abridged, are written, printed, or otherwise expressed, or any map or plan is inscribed.”

234. Conspiracy to murder.-Every one is guilty of an indictable offence and liable to fourteen years' imprisonment, who

(a.) conspires or agrees with any person to murder or to cause to be murdered any other person, whether the person intended to be murdered is a subject of Her Majesty or not, or is within Her Majesty's dominions or not; or

(b.) counsels or attempts to procure any person to murder such other person anywhere, although such person is not murdered in consequence of such counselling or attempted procurement. R.S.C., c. 162, s. 3.

This article is the same in effect as the Imperial statute, 24 and 25 Vict. c. 100, s. 4, under which it was held in Most's case that the publication and circulation of a newspaper article may be an encouragement or attempt to persuade to murder, although not addressed to any person in particular. The prisoner had published and circulated an article written in German, in a newspaper published

(1) R. v. Fretwell, L. & C. 443; 33 L J. (M. C.) 128.

(2) R. v. Brown, 10 Q. B. D. 381; 52 L. J. (M. C.) 49.

(3) R. v. Duckworth, [1892] 2 Q. B. 83.

(4) R. v. Mountford, R. & M. C. C. 441; 7 C. & P. 242; Arch. Cr. Pl. & Ev. 21 Ed. 753.