height and strength to prevent any person from accidentally riding, driving, walking or falling therein; or

1 (c.) omits within five days after conviction of any such offence to construct around or over such exposed opening or excavation a guard or fence of such height and strength.

2 Every one whose duty it is so to guard such hole, opening, aperture or place is guilty of manslaughter if any person loses his life by accidentally falling3 therein while the same is unguarded.

4 ARTICLE 307.

NEGLECTING WHEN LIABLE TO PROVIDE FOOD-CAUSING BODILY HARM TO APPRENTICES AND SERVANTS.

5

Every one is guilty of a misdemeanor, and liable to three years' imprisonment, who,

(a.) being legally liable, either as a (husband, parent, guardian, or committee,) master or mistress (nurse or otherwise), to provide for any person as (wife, child, ward, lunatic or idiot), apprentice or servant (infant or otherwise), necessary food, clothing, or lodging, wilfully and without lawful excuse refuses or neglects to provide the

same; or

(b.) unlawfully or maliciously does, or causes to be done, any bodily harm to any such apprentice or servant, so that the life of such apprentice or servant is endangered, or the health of such apprentice or servant has been, or is likely to be, permanently injured.

1 R. S. C. c. 162, s. 31.

2 R. S. C. c. 162, s. 32.

3. Riding, driving, walking, skating or falling."

4 S. D. Art. 239 (d).

5 R. S. C. c. 162, s. 19; 21 & 25 Vict. c. 100, s. 26. The words in parentheses are not in the statute of the United Kingdom. On an indictment against a husband for wilfully neglecting to provide necessary food, etc., for his wife, it must be shewn that the wife was in want and that the husband had the ability to provide for her; R. v. Nasmith, 42 U. C. Q. B. 242. It is not necessary to show that the life of the wife is endangered or that her health has been or is likely to be permanently injured; R. v. Scott, 4 Dor. Q. B. 50; 28 L. C. J. 264. See also R. v. Smith, 23 L. C. J. 247; R. v. Maher, 7 L. N. 82.

ARTICLE 308.

NEGLIGENTLY CAUSING BODILY INJURY TO ANY PERSON.

1Every one is guilty of a misdemeanor, and liable to imprisonment for any term less than two years, who, by any unlawful act, or by doing negligently or omitting to do any act which it is his duty to do, causes grievous bodily injury to any other person.

3 R. S. C. c. 162, s. 33.

CHAPTER XXVII.

ASSAULTS-KIDNAPPING-OBSTRUCTING OFFICERS AND OTHERS IN THE EXECUTION OF THEIR DUTY.

ARTICLE 309.

ASSAULT AND BATTERY AND ASSAULT DEFINED.

[AN ASSAULT is

3

4

(a.) 3 an attempt unlawfully to apply any, the least, actual force to the person of another directly or indirectly;

(b.) the act of using a gesture towards another giving him reasonable grounds to believe that the person using that gesture meant to apply such actual force to his person as aforesaid;

(c.) the act of depriving another of his liberty,

in either case without the consent of the person assaulted, or with such consent if it is obtained by fraud. A battery is an assault whereby any, the least, actual force is actually applied to the person of another, or to the dress worn by him, directly or indirectly.

Provided that such acts as are reasonably necessary for the common intercourse of life, are not assaults or batter

1 Draft Code, ss. 203-206.

2 S. D. Art. 241.

3 [See Article 52 for a definition of an attempt.

41 Russ. Cr. (5th ed.) 956; 1 Hawk. P. C. 100. A most elaborate definition of "force " is given in the Indian Penal Code, s. 350, as the foundation for a definition of assault, s. 351. The definition is almost more mathematical than legal. It begins thus: "A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other," &c., &c. It is impossible not to ask why, if force is to be defined, motion should be left undefined. It is, I think, hardly too great a demand on the candour of a reader to suppose that he will see that a man who withdraws a chair on which a person is about to sit down, causing him thereby to fall to the ground; or who whips a horse on which he is sitting, and so makes him run away with his rider; or who breaks a hole in ice in front of a skater, and so causes him to fall into the water-" applies actual force to his person indirectly."] R. v. Harmer, 17 U. C. Q. B. 555; Ex parte Dubuc, 2 L. N. 334.

[ries if they are done for the purpose of such intercourse only and with no greater force than the occasion requires. No mere words can in any case amount to an assault.

Illustrations.

The following are cases of assault and battery :

1

(1.) 1 A cut B's dress whilst B is wearing it, but without touching or intending to touch any part of B's person.

3

(3.) A man professing to act as a medical adviser fraudulently induces a girl to allow him to undress her, by falsely alleging that it is necessary for medical reasons to do so.

4

(4.) A touches B, a boy of eight, in a grossly indecent manner, B acquiescing in ignorance of the nature of the act.

(5.) 5 A induces B to permit him to have connection with her, by pretending to be her husband.

The following are cases of assault without battery :

(6.) 6 A strikes at B with a stick without hitting him.

(7.) A aims a pistol at B which A knows is not loaded, but which B believes to be loaded.

In the following cases no assault or battery is committed :

(8.) A lays his hand on B, to attract his attention.

(9.) A, falling down, catches hold of B to save himself.

(10.) A crowd of people, going into a theatre, push and are pushed against each other.]

8

(11.) A and B in a hostile manner stand in front of C's horses and carriage and detain him.

9

(12.) A, with intent to cause such collision, opens a railway switch whereby two trains comes into collision, occasioning severe injury to a person on one of the trains.

1 [R. v. Day, 1 Cox, C. C. 207.

21 Russ. Cr. 958, gives several cases of this sort.

3 R. v. Rosinski, 1 Russ. Cr. 959; and see R. v. Case, 1 Den. 580.

* R. v. Lock, L. R. 2 C. C. R. 10, and see R. v. Barnett, L. R. 2 C. C. R. 81.

5 R. v. Williams, 8 C. & P. 286.

61 Hawk. P. C. 110.

7 R. v. George. 9 C. & P. 483.] In the case of R. v. Cronan, 24 U. C. C. P. 106, a

pistol loaded with power and wadding was discharged at the person assaulted.

8 R. v. McElligot and Meyers, 3 0. R. 535.

In re Lewis, 6 Ont. P. R. 236.

R

ARTICLE 310.

ASSAULT WITH INTENT TO COMMIT RAPE.

1 Every one who assaults any woman or girl with intent to commit rape is guilty of a misdemeanor, and liable to imprisonment for any term not exceeding seven years and not less than two years.

3

2 ARTICLE 311.

INDECENT ASSAULTS ON FEMALES.

Every one who commits any indecent assault upon any female, is guilty of a misdemeanor and liable to imprisonment for any term less than two years, and to be whipped.

5

ARTICLE 312.

INDECENT ASSAULTS ON MALES.

Every one is guilty of a misdemeanor, and liable to ten years' imprisonment, who assaults any person with intent to commit sodomy; or who, being a male, indecently assaults any other male person.

1 R. S. C. c. 162, s. 38. An assault with intent to commit rape, rape within R. S. C. c. 174, s. 183; John v. R. 15 Can. S. C. 384.

2 S. D. Art. 245 (c).

an attempt to commit

3 R. S. C. c. 162, s. 41; 24 & 25 Vict. c. 100, s. 52. See also 48 & 49 Vict. c. 69, s. 4. Although it is an offence to carnally know, or attempt to carnally know, a girl under the age of twelve years, even if she consents, there can be no conviction for an indecent assault if she consents, and that too, it appears, although the assault may be an attempt to carnally know the girl. See Art. 325 note. This unsatisfactory state of the law as to the consent of young persons has been remedied in England both as to boys and girls by the Act 43 & 44 Vict. c. 45, by which it is enacted that it shall be no defence to a charge or indictment for an indecent assault on a young person under the age of thirteen to prove that he or she consented to the act of indecency. A similar statute could, with advantage, be passed in Canada.

4 S. D. Art. 242.

5 R. S. C. c. 157, s. 2; 24 & 25 Vict. c. 100, s. 62. As to sodomy and attempt to commit sodomy, see Arts. 213, 214. The consent of a boy to the act of indecency will prevent it from amounting to an assault; R. v. Laprise, 3 L. N. 139, following R. v. Wollaston, 12 Cox, 180. See notes to Arts. 311 and 325.