case is overruled: see R. v. Brown, 10 Q. B. D. 381; R. v. Duckworth, 17 Cox, 495, [1892] 2 Q. B. 83.

In R. v. Phelps, 2 Moo. 240, the prisoner with others was indicted for murder. It was proved that Phelps, in a scuffle, struck the deceased once or twice and knocked him down; that after this Phelps went away to his own home and took no further part in the affray; that, about a quarter of an hour afterwards, the deceased, on the same spot, was again assaulted by other parties, and received then an injury of which he died on the spot. On these facts the jury acquitted Phelps of the felony and found him guilty of the assault. But the judges were unanimously of opinion that the conviction was wrong, as for a verdict of assault under the clause mentioned the assault must be such as forms one constituent part of the greater charge of felony, not a distinct and separate assault as this

was.

In R. v. Crumpton, Car. & M. 597, Patteson, J., held that, in manslaughter, a jury should not convict a prisoner of an assault unless it conduced to the death of the deceased, even though the death itself was not manslaughter. See also R v. Connor, 2 C. & K. 518.

In the case of R. v. Ganes, 22 U. C. C. P. 185, already cited, the court followed the rule laid down by the majority in R. v. Bird, and decided that a verdict of assault cannot be given upon an indictment for murder or manslaughter. It may be remarked that, in this case, Chief Justice Hagarty distinctly said that his own individual opinion was wholly with that of the minority in R. v. Bird, viz., that, in such cases, a verdict of assault is legal.

In Quebec, in the cases of R. v. Carr (2nd case,) R. v. Wright, R. v. Taylor, and upon indictments charging either murder or manslaughter, verdicts of "guilty of assault have been given, and received, unquestioned.

In R. v. Walker (Salacia case,) Quebec, 1875, for manslaughter, Dorion, C.J., charged the jury that they were at liberty to return a verdict of common assault.

Upon an indictment for rape, or for an assault with intent to commit rape, a boy under fourteen may be convicted of a common assault or an indecent assault, though not of an attempt to commit rape: R. v. Brimilow, 2 Moo. 122. See R. v. Waite, (1892) 2 Q. B. 600.

Upon an indictment for feloniously assaulting with intent to murder, a verdict of common assault may be given: R. v. Cruse, 2 Moo. 53; R. v. Archer, 2 Moo. 283.

But to authorize such a verdict the felony charged must necessarily include an assault on the person, and, for instance, on an indictment for administering poison with intent to murder, a verdict of assault cannot be given under this clause. Nor can it be given on an indictment for burglary with intent to ravish: R. v. Watkins, 2 Moo. 217; R. v. Dilworth, 2 M. & Rob. 531; R. v. Draper, 1 C. & K. 176; but such a verdict may be given, if the indictment charges an assault, and the wilfully administering of deleterious drugs: R. v. Button, 8 C. & P. 660; per Stephen, J., "Poisoning is not an assault: R. v. Clarence, 16 Cox,

526.

In R. v. Cregan, 1 Han. (N. B.) 36, on an indictment for murder, the jury found the prisoner guilty of an assault only, but that such assault did not conduce to the death of the deceased. The court held this conviction illegal and not sustained by the statute.

In R. v. Cronan, 24 U. C. C. P. 106, the Ontario Court of Common Pleas held that upon an indictment for shooting with a felonious intent the prisoner, if acquitted of the felony, may be convicted of a common assault, and that to discharge a pistol loaded with powder and wadding at a person, within such a distance that he might have been hit, is an assault.

In R. v. Goadby it appears to have been held that a verdict of assault cannot be received on an indictment for feloniously stabbing with intent to do grevious bodily harm, but this case seems very questionable, says Greaves, note (d), 2 Russ. 63.

may

A prisoner accused of assault with intent to rob be found guilty of a simple assault: R. v. O'Neill, 11 R. L. 334.

The case of R. v. Dungey, 4 F. & F. 99, where it was held that after an acquittal upon an indictment for rape the prisoner may be indicted for a common assault, is not law in Canada, under ss. 631-713.

Held, that on an indictment for murder in the short form given in schedule A. to c. 29, of 32 & 33 V., a prisoner cannot be convicted of an assault under s. 51 of that chapter; held, also, that the fact of the prisoner's counsel having, at the trial, consented that he could be convicted, and requested the judge so to direct the jury, did not preclude him from afterwards objecting to the validity of the conviction on this ground: see R. v. Sirois, 27 N. B. Rep. 610; R. v. Mulholland, 4 P. & B. (N.B.) 512.

Greaves' following note to R. v. Phillips, 3 Cox, 226, may be inserted here.

"It may admit of some doubt whether the construction of s. 11 of the 1 V. c. 85, is finally settled. The framer of the clause probably intended that the clause should apply to those cases where, upon an indictment for a felony, including an assault, the jury should acquit on the ground that the felony, although attempted, was not completed. But if such were the intention the words do not so clearly express it as they ought, as they authorize the jury to convict of assault' on any indictment for felony 'where the crime charged shall include an assault.' These words are so general that they might include any assault, whether at the time of the felony charged or not; and the learned judges have therefore been obliged to put some limitation upon them, and the proper limitation seems to be that which has been put upon them by the very learned Baron in R. v. St. George, namely that the assault must be an assault involved in and connected with the felony charged ; and it is submitted that it must be such an assault as is

essential to constitute part of the crime charged. A felony including an assault may be said to consist of the assault, the intent to commit the felony, and the actual felony. Thus in robbery there is the assault, the intent to rob, and the actual robbery; and in such a case it is submitted the assault, of which the prisoner may be convicted, must be such an assault as constitutes one step towards the proof of the robbery. Upon this the question arises whether an assault, where the jury negative any intention to commit a felony, is within the section, and it is submitted that it is not, as such an assault cannot be said to be involved in or connected with the felony charged in any manner whatsoever. It is true that an assault is included in the felony but it is an assault coupled with an intent, and if the jury negative the intent such an intent in no way tends to prove the felony; and it certainly would be a great anomaly if the prisoner was indicted for a felony, and the jury found he had no intention of committing a felony, that he might be sentenced to three years' imprisonment and hard labour, while if he had been indicted for the offence of which he was really guilty he could only be sentenced to three years' imprisonment without hard labour, R. v. Ellis, 8 C. & P. 654, therefore seems deserving of reconsideration, and the more so as it was decided before R. v. Guttridge, 9 C. & P. 471; R. v. St. George, 9 C. & P. 483; R. v. Phelps, Gloucester Sum. Ass. MSS. cited 1 Russ. 781. The intention, no doubt, was to punish attempts to commit felonies including assaults, and it is to be regretted that the provision, instead of being what it is, was not that upon any indictment for felony, if the jury should think that the felony was not completed, they might find the prisoner guilty of an attempt to commit the felony charged in the indictment.”

In that case of R. v. Phillips four persons were indicted for a felony. Three were found guilty of the felony and one of common assault.

VERDICT OF CONCEALMENT OF BIRTH ON A CHARGE OF CHILD MURDER.

714. If any person tried for the murder of any child is acquitted thereof the jury by whose verdict such person is acquitted may find, in case it so appears in evidence, that the child had recently been born, and that such person did, by some secret disposition of such child or of the dead body of such child, endeavour to conceal the birth thereof, and thereupon the court may pass such sentence as if such person had been convicted upon an indictment for the concealment of birth. R. S. C. c. 174, s. 188.

See s. 240 as to the offence of concealment of birth.—

Section 714 is taken from 24 & 25 V. c. 100, s. 60, (Imp.), upon which Greaves remarks: "Cases have not unfrequently occurred where endeavours have been made to conceal the birth of children, and there has been no evidence to prove that the mother participated in those endeavours, though there has been sufficient evidence that others did so, and under the former enactments, under such circumstances, all must have been acquitted. The present clause is so framed as to include every person who uses any such endeavour, and it is quite immaterial under it whether there be any evidence against the mother or not."

Under the former enactments a person assisting the mother in concealing a birth would only have been indict able as an aider or abettor; but a person so assisting would come within the terms of this clause as a principal.

The terms of the former enactments were "by secret burying or otherwise disposing of the dead body," and on these terms many questions had arisen: see R. v. Goldthorpe, 2 Moo. 240; R. v. Perry, Dears. 471. Under this clause "any secret disposition" is sufficient.

Under the former enactments the mother alone could be convicted of this offence where she was tried for the murder of her child. Under this clause any person tried for the murder of a child may be convicted of this offence whether the mother be convicted or not. The words "of such child" are not in the Imperial Act.