one peaceably entering as aforesaid, for the purpose of making him desist from such entry, such assault shall be deemed to be without justification or provocation.

3. If any person having peaceable possession of such house or land with a claim of right, or any person acting by his authority, assaults any one entering as aforesaid, for the purpose of making him desist from such entry, such assault shall be deemed to be provoked by the person entering.

See note under preceding section.

DISCIPLINE OF MINORS AND ON SHIP.

55. It is lawful for every parent, or person in the place of a parent, schoolmaster or master, to use force by way of correction towards any child, pupil or apprentice under his care, provided that such force is reasonable under the circumstances.

56. It is lawful for the master or officer in command of a ship on a voyage to use force for the purpose of maintaining good order and discipline on board of his ship, provided that he believes on reasonable grounds, that such force is necessary, and provided also that the force used is reasonable in degree.

A parent may in a reasonable manner chastise his child, or a master his servant, or a schoolmaster his scholar, or a gaoler his prisoner, and a captain of a ship any of the crew who have mutinously or violently misconducted themselves: 1 Burn. 314; Mitchell v. Defries, 2 U. C. Q. B. 430; Brisson v. Lafontaine, 8 L. C. J. 173.

As to homicide by correction: see R. v. Hopley, Warb. Lead. Cas. 110; R. v. Griffin, 11 Cox, 402.

SURGICAL OPERATIONS.

57. Every one is protected from criminal responsibility for performing with reasonable care and skill any surgical operation upon any person for his benefit, provided that performing the operation was reasonable, having regard to the patient's state at the time, and to all the circumstances of the case.

EXCESS.

58. Every one authorized by law to use force is criminally responsible any excess, according to the nature and quality of the act which constitutes the excess.

for

See note under section 16, and section 45, ante, and Hamilton v. Massie, 18 O. R. 585.

CONSENT TO DEATH NOT LAWFUL.

59. No one has a right to consent to the infliction of death upon himself; and if such consent is given, it shall have no effect upon the criminal responsibility of any person by whom such death may be caused.

See note under section 16, as to the words "criminal responsibility."

OBEDIENCE TO De Facto LAW.

60. Every one is protected from criminal responsibility for any act done in obedience to the laws for the time being made and enforced by those in possession (de facto) of the sovereign power in and over the place where the act is done.

"See 11 Hen. VII., c. 1, Sir H. Vane's case, Kelyng 15, and Foster's 4th discourse, p. 402."-Imp. Comm. Rep.

PART III.

PARTIES TO THE COMMISSION OF OFFENCES.

61. Every one is a party to and guilty of an offence who

(a) Actually commits it; or

(b) Does or omits an act for the purpose of aiding any person to commit the offence; or

(c) Abets any person in commission of the offence; or

(d) Counsels or procures any person to commit the offence.

2. If several persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of such common purpose, the commission of which offence was, or ought to have been known to be a probable consequence of the prosecution of such common purpose,

See in R. v. Jordan, Warb. Lead. Cas. 2, and R. v. Manning, Id. 7, a collection of cases on the subject of principals and accessories.

See section 237, as to aiding and abetting suicide.

This section is so framed, says the Imperial Commissioners' Report, as to put an end to the nice distinctions between accessories before the fact and principals in the second degree, already practically superseded by chapter 145 Revised Statutes. All are now principals in any offence, and punishable as the actual perpetrator of the offence, as it always has been in treason and misdemeanour. The prosecutor may, at his option, prefer an indictment against the accessories before the fact, and aiders and abettors as principal offenders, whether the party who actually committed

the offence is indicted with them or not; R. v. Tracey, 6 Mod. 30. For instance: A. abetted in the commission of a theft by B. The indictment may charge A. and B. jointly or A. or B. alone as guilty of the offence, in the ordinary form, as if they had actually stolen by one and the same act. Or the indictment, after charging the principal of the offence, may charge the accessory or aider as follows: "And the jurors aforesaid do further present, that C. D., before the said offence was committed as aforesaid, to wit, on. did incite, move, procure, aid, counsel, hire and command the said A. B. the said offence in manner and form dføresaid to do and commit;" or, "that C. D., on the day and year aforesaid, was present, aiding, abetting and assisting the said A. B. to commit the said offence in manner and form aforesaid." And if the actual offender is not indicted, as follows: "The jurors, etc., etc., present, that A. B., or that some person or persons to the jurors aforesaid unknown, did steal, etc., etc. And the jurors afore

on

be

In every case where there may be a doubt whether a person be a principal or accessory before the fact, it may advisable to prefer the indictment against him as a principal, as such an indictment will be sufficient whether it turn out on the evidence that such person was a principal or accessory before the fact, as well as where it is clear that he was either the one or the other but it is uncertain which

he was.

It is no objection to an accessory before the fact being convicted that his principal has been acquitted: R. v. Hughes, Bell. 242; R. v. Burton, 13 Cox, 71. And such accessories, aiders and abettors may be arraigned and tried before the actual perpetrator of the offence: 2 Hale, 223; R. v. James, 17 Cox, 24, 24 Q. B. D. 439. In some cases, as in suicide, for instance, the aiders and abettors or accessories only can. be indicted. Where the actual perpetrator and the acces

sories are jointly indicted all may be found guilty of attempting to commit the offence charged: section 711. And, if an attempt only to commit an offence is charged, all may be found guilty, though the full offence is proved; section 712, If the offence charged is not proved, but another offence included in it is proved, they may all be found guilty of the offence so proved : section 713.

The soliciting and inciting a person to commit an offence, where no offence is in fact committed by the person so solicited, is an indictable offence: R. v. Gregory, 10 Cox, 459.

A principal in the first degree is one who is the actor or actual perpetrator of the act. But it is not necessary that he should be actually present when the offence is consummated; for if one lay poison purposely for another who takes it and is killed, he who laid the poison, though absent when it was taken, is a principal in the first degree: Fost. 349; R. v. Harley, 4 C. & P. 369. So, it is not necessary that the act should be perpetrated with his own. hands; for if an offence be committed through the medium of an innocent agent the employer, though absent when the act is done, is answerable as a principal in the first degree see R. v. Giles, 1 Moo. 166; R. v. Michael, 2 Moo. 120; R. v. Clifford, 2 C. & K. 202. Thus, if a child, under the age of discretion, or any other instrument excused from the responsibility of his actions by defect of understanding, ignorance of the fact, or other cause, be incited to the commission of murder or any other crime, the inciter, though absent when the fact was committed, is, ex necessitate, liable for the act of his agent, and a principal in the first degree: Fost. 349; R. v. Palmer, 2 Leach, 978; R. v. Butcher, Bell, 6. But if the instrument be aware of the consequences of his act he is a principal in the first degree, and the employer, if he be absent when the fact is committed, is an accessory before the fact, and may now be indicted either as such, or as the actual offender: R. v. Stewart, R. & R. 363; R. v. Williams, 1 Den. 39; unless the instrument concur in the

act merely for the purpose of detecting and punishing the employer, in which case he is considered as an innocent agent: R. v. Bannen, 2 Moo. 309.

Principals in the second degree.-Such were called those who were present, aiding and abetting, at the commission of the fact.

Presence, in this sense, is either actual or constructive. It is not necessary that the party should be actually present, an ear or eye-witness of the transaction; he is, in construction of law, present, aiding and abetting, if, with the intention of giving assistance, he be near enough to afford it, should the occasion arise. Thus, if he be outside the house, watching to prevent surprise, or the like, whilst his companions are in the house committing a felony, such constructive presence is sufficient to make him a principal in the second degree: Fost. 347, 350; see 1 Russ. 61; 1 Hale, 555; R. v. Gogerly, R. & R. 343; R. v. Owen, 1 Moo. 96. But he must be sufficiently near to give assistance. R. v. Stewart, R. & R. 363; and the mere circumstance of a party going towards a place where a felony is to be committed, in order to assist to carry off the property, and assisting in carrying it off, will not make him a principal in the second degree, unless, at the time of the felonious taking, he were within such a distance as to be able to assist in it: R. v. Kelly, R. & R. 421; 1 Russ. 27. So, where two persons broke open a warehouse, and stole thereout a quantity of butter, which they carried along the street thirty yards, and then fetched the prisoner who, being apprised of the robbery, assisted in carrying away the property, it was holden that he was not a principal, but only an accessory after the fact: R. v. King, R. & R. 332; R. v. Dyer, 2 East, P. C. 767. And although an act be committed in pursuance of a previous concerted plan between the parties, those who are not present, or so near as to be able to afford aid and assistance at the time when the offence is committed, are not principals, but accessories before the fact: R. v. Soares,