«<^, IMAGE EVALUATION TEST TARGET (MT-3) A 1.0 1.1 li.25 lit 122 i2.2 U |M Science! Corporation 23 WfST MAIN STREET WEBSTER, N.Y. MSN (716)872-4303 '^ A ^ &*• CIHM/ICMH Microfiche Series. CIHiVI/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques Technical and Bibliographic Notes/Notes tachniquas at bibliographiquaa Tha Instituta has attamptad to obtain the best original copy available for filming. Features of this copy which may be bibliographically unique, which may alter any of the images in the reproduction, or which may significantly change the uauai method of filming, are checked below. Coloured covers/ Couverture de couleur I I Covers damaged/ D Couverture endommag^e Covers restored and/or laminated/ Couverture restaur^ et/cu peliicul6e □ Cover title missing/ Le titre de couverture manque I I Coloured maps/ D D D D D Cartas g^ographiquas en couleur Coloured ink (i.e. other than blue or black)/ Encre de couleur (i.e. autre que bleue ou noire) I I Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with other material/ Ralii avec d'auties documents Tight binding may cause shadows or distortion along interior margin/ La re llure serr^a peut causer de I'ombre ou de la distortion la long de la marge IntArieure Blank leaves added during restoration may Appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajouttes lore d'une restau ration apparaissent dans la texte, mais, lorsque cela 6tait poasibie, ces pages n'ont pas 6t6 filmies. Additional comments:/ Commentaires suppl6mentairas: L'Institut a microfilm* le meilleur exemplaire qu'il lui a 6tA possible de se procurer. Les ditaiis de cet exemplaire qui sont peut-Atre uniques du point de vue bibliographique, qui peuvent modifier une image reproduite, ou qui peuvant exiger une modification dans la mAthode normale de f ilmaga sont indiqute ci-dassous. Th to r~n Coloured pages/ D This item is filmed at tha reduction ratio checked below/ Ce document est f llmA au taux da reduction indiquA ci-dassous. Pagea de couleur Pages damaged/ Pages endommag^as Pages restored and/oi Pages restaur^as et/ou peiiicul^es Pages discoloured, stained or foxei Pages d^coiortes, tachaties ou piqu^aa Pages detachsd/ Pages d^tachies Showthrough> Transparence Quality of prir Quality in^gala de I'lmpression Includes supplementary materit Comprend du materiel suppl^mentaire Only edition available/ Seule Mition disponible Pages restored and/or laminated/ r~n Pages discoloured, stained or foxed/ I I Pages detached/ FTj Showthrough/ I I Quality of print varies/ I I Includes supplementary material/ I — I Only edition available/ T^ pc of fil Oi be th si< ot fil si( or Tl sr Tl w M di er b« rll re m Pages wholly or partially obscured by errata slips, tissues, etc., have been ref limed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par un feuillet d'errata, une pelure, etc., ont 6t6 filmtes * nouveau de fa^on d obtanir la meilleure image possible. 10X 14X 18X 22X 26X 30X y 12X 16X »X 24X 28X 32X The copy filmed here hes been reproduced thanks to the generosity of: Library of the Public Archives of Canada L'exempiaire film* fut reproduit grflce A la ginirosit* da: La bibiiothdque des Archives pubiiques du Canada The images eppearlng here are the best quality possible considering the condition end legibility of the original copy and in keeping with the filming contract specifications. Las images suivantes ont M raproduites avec ie plus grand soin, compte tenu de la condition at de la nettetA de l'exempiaire film*, et en conformity avec les conditions du contrat de filmage. Original copies in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or Illustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. The last recorded frame on each microfiche shall contain the symbol ^^ (meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. Maps, plates, charts, etc , may be filmed at different reducljon ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les exemplaires originaux dont la couverture en papier est imprimis sont filmiit en commengant par Ie premier plat et en terminant soit par la darniire page qui comporte une empreinte d'impression ou d'illustration, soit par la second plat, salon ie cas. Tous les autres exemplaires originaux sont filmte en commenpant par la premidre page qui comporte une empreinte d'impression ou d'illustration et en terminant par la dernlAre page qui comporte une telle empreinte. Un des symboles suivants apparaTtra sur la dernlAre image de cheque microfiche, selon Ie cas. :e symbols — ► signifie "A SUIVRE". Ie symbols V signifie "FIN". Les cartes, planches, tableaux, etc., peuvent Atre film6s A des taux de reduction diffirents. Lorsque Ie document est trop grand pour Atre reproduit en un seul ciichi. il est film* A partir de Tangle supArieur gauche, de gauche i droite. et de haut en bas, en prenant Ie nombre d'imagas nicessaire. Les diagrammes suivants iliustrent la mMhode. 1 2 3 1 2 3 4 5 6 '?D0 "I :,r'" ', MMaililMMMl * t * *■« 4 4. «,♦.'♦.* ♦ * f .♦ ♦ ♦ ♦ «tir«i, fir ►^' MANUAL » ! OF TUK CKIMINAL LAW CANADA. BY JOHN HENRY WILL AN, COCNSGLLOR AT LAW. *v «i/v/VV^ "X. v ^ U) QUEBEC 1861. <« «' I fMWff|^w*'*****f»**"»****W'?rwt^^ftfirri i iH i ii nni -.i. «S i)itete^ , A MANUAL Harris.' . OF THE CEIMINAL LAW OP CANADA. BY JOHN HENRY WH^LAN, COUNSELLOU AT LAW. QUEBEC 1861. /--^y/x TO TJIK KKADEU. TIh; li)ll()\viiiii[ is <-()iii|)il('(l (!ntiix'ly I'roiii stamlanl iiutliors, indeed from all the l)esl Essayisls of the le<,Ml profession to he found in an Advocate's Library. It orifc1s to the reader's indulgence. The following general directions should hr, kept in mind when I speak of a Stalut(« witlioal stating its source if it appears to be subsequent to 1774, it will have been pas.sed by Provincial Authority; if previous to that date by Imperial Authority. It has bc(>n said the law " sleeps but dies not," and no time can repeal an x\et of Parliament, it must be repealed or superseded by Parliament. Therefore when; very old Statutes existing in 1774 iiave not been superseded by the exercise of the powers delegated to Provincial authority, I have thought lit to refer to them as part of the law of this land. The Consolidated Statutes of Canada have uinch facilitated the work of re- ference to our Canadian Legislation. When I have been unabh; to refrain from drawing an inference of my own from cases and authorities before me, I have used such lan eoniinission of any eriiiiinal olUnce, hiitin law eriniinals are di- vided into prineipals and accessories. This division appliesoidy to (elons. In I 'reason nil ar(> priiieipais, in misdeineaiiors there are no accessories, and tii'isoii, lel(>ny and misdemeanor are the tliree heads under which all crimes are in- clu(h?d. An accessary heliire the liict in felony, is oiu! \\ ho counsels, excites, moves. I rocnres, liins, or otimmands aiiollier, ami is not himself at the doine,' of it. An accessary all«r tilt liief, i.s he who knowingly receives, harbors ra" assists the pniK'ipal felon. This will not reach the wife of the felon. In treason the receipt of the principal, or other assistance towards his Might, concealment or niilawfiil deliverance, or other unlawful protection from ju.stic(!. Will make the party a jirincipal traitor; in misdemeanor, the receipt, tVc, is no crime. .Accessary dnring the fact is a principal in tho second degree. Tho dililrence bclweiMi jirincipals in tin; lirst and second degree is so immaterial that u man indicted as principal in the lirst degree, may he coin icted on proof that he was prc.«:cnt at the fact aiding and abettinu. and it' indicted in llu' secoial degree he may be convicted uii proof that he did Ihc uet. Consojiilated Statutes, Cap. 97. ACCUSING. Accfsixoofer Ihreatening toaccnse of ccrtaincrimes, with intent to extort money, is felony, 'fhe accusation nnist be ot' infiimons crimes or it is no f(dony. The threat may be made either by letter or by words sjRiken.and must bt' made either to tlu^ party threatened, or to a third party with intent that it shall he mmtioncd to him, and this the prosecutor niiist prove. The intent may he either expressed or implu'il. The intended extortion must he either of money or chattels or valuuble securities. The threat must be used belbre the accusation is made if the otlence consist ol the threat ; hut if the accuser threaten after thi' accusation niaile, doubtless it woidd bo evidence of tlic intent of the accusation, tlnaigh it would be for the jury to say whether at the time of the arrusing tlie iiitent existed, which is necessary to the oHence. This crime is a felony. i'Vr particulars see the Consolidated .Statutes, Cap. 9ii, ss. 6 iV 7. It is to he noti'd that the indictment lies where the threat \vas used ex- cept Avlieii il Avas liy letter — in that case the venue may he laid where the letter Avas addressed. Apprenticks. liir Laws relative to, See Provincial Statutes^ 41 Geo. .3, Caj). 13 ; 57 (Jeo. 'A, Cap. Ki ; 12 Vic, Cai.. n.'i ; IS Vic, Cap. 100. Ai'orHKCAUiEs. See Provincial Statutes, 10 A: 1 1 Vic, Cap. 13 ; 28 Geo. 3, Cap. S ; 4, \-, ') Vic, Cap. 41 5 10 & 11 Vic.jCaj). 28 ; 12 Vic, Cap, 52 ; 14 *:. 15 Vic, Cap. 105 ; 18 Vic, Cap. 24 k ATTORN KV. Attorney. — As ovory nttorncy in Caiimlii ICiist is alsn u counsel uikI vivi versH, the rules ns to iittorncys in I'jij^Iisii liooks ntM^d not bo souplit, hut it ix |iro|)or to riMiiiirk tluil all tin* urivilogr;. iiiul iiiaiiy ol' th<' rrs|Miiisil)iliti'>s of I'iiiplisli iiltdiin ys ntlucli to tlio Hiir ol' Cimuda, iiiui sdiiic of llicin w ill hr frcatril ofcl.M'wIicn iirulcr ollar licuds siicli iis in dcnliii"!; with tlic olll-nco of Imrratry, \-i\ >^ro 7 Vic, ('up. IM ; 10 \ 1 1 Vic . Cap. Ill ; Vi Vir.. Cup, .18 ; 12 Vio., Cap. 14; 1.? \' U Vio., Cnp, H? ; li \- If) Vii-. Cap. JT) : IS Vio., Cap. 100. AlU'llOVEll. Appuoveu. — rjy the iiuoiont iisa^fc ol' criiniuul law if a man iiulii.'t«'d for treason or felony, coulcssod the indictnuMit (that is his i.Miiil) the fi.urt nii/rht udniit iiini to hi-conn' iin approver, that is a witness aj^aiiist his ace«'iiiplie<'s in tlie criiuo. 'I'he wlioh Icarninj; ol approvements (i. c. trial hy the evidence of anapprover) is now ohsolele heinp snpersedcil by 'I.e niodern practice of iilh)\v- ing an accnseil pi'rsun to turn evidence tor the Qiecn willmnt coiiiessin^Mhe indictment. Tn point (d" law sn(di a witness may convict anotln'r ol any crime in which eiu' witness snllicis, yet it is not usual to convict on the testi- mony of an aeconiplice or of tlje wife ol an accomplict', unless the evidence he ijorrohorated by other ti'slimony, and it has been held that evidenci' cii-niliora- ting the testimony of the appruver (/iKnuf A was nnt corroboratery of his eviil- enee (jwtud 15, and the corroberattiry testimony must be as to some liict or cir- cumstance wliicli tends to connect the prisoner with the crime or with the Hj)prover, and not nu*rely as to the commissiun of tlu' crime. It is not proper to admit the guiltiest as ap|)rover and in many cases it would still perhaps, us anciently, have th<' ellect ( '" ;ie(piittiiiu- them all. (Ireat caution sliciild be und geiieially is used in allowiiig men to turn iippruver or evidence lor the l^ueen. ASSAULT. AssAi/'i.T. — An 'i.vsiiiill IS ;in attempt to do a personal injury !o luiotlier. iNssaults vary u itli tlie nature of the intent ol the assanlierand of the crime which he intends to commit. 'I'hey enter as elenu'iits into other <'rinj! s. but. at the same tiiiie every assault is in itself a distinct snbstantivt? olieiice. As such we will lirst treat of this olU-nce. An attempt er olflr with force and violence to do a cor|ioral hurt to another is a common assault. As by striking at him with or withniit a wea|)Lm or privsentiiig a gun at him wilhi'i a distince to which the gun will carry, or pointing a pitchlurk at him wliilv! standing within the reach of it, or holding u|) one's list at liim, .- by any otii'i- rasii act done in an iiiiu'ry or threatening manner, ."^o riding ouards a man with intent to ilo luiu a corporal injury, so that he was obliged to run away to avoid it, was holdcii to be an assault. Whore A advanced in a ihreateuing attitude to strike JJ, iioi! of an iuuncdiat,e personal danger. No wonls will amount to an assault. i5nt words may be taken as part of the res isestcf in an assault case and may be given 8 ill ovidcnce us shewing the intent of the pjirty. A common assault is a misdemeanor at common hiw, and tlie remedies II-'* tliis wrong are ')oth civil and criminal. P iir.g by suit for damages, by indictment, by informa- tion, by a summary trial, which is a mixed process, iIk; costs being re- covered by the prosecutor on conviction, while the penalty goes to the Queen or I^y Cap. 91, s. 39, of the Consolidrted Statutes to the Municipality in which the ofience was committed, and by binding the assaulter to keep the peace !'or the future, for the security of the assaulted. As to the first, it is competent for the injured party to proceed both by indictment jind suit, but the Judges will usually, on motion at leuoL, stay process in either court, until the other has conchuled, lest the defendant be punished beyond his deserts by the effect of these cumulative remedies. The mode in which proceedings are stayed belongs to the practice of these courts and not to this work. Of the third, information i? a process wholly disused in Canada East and discouraged in England in cises of iussault. This is not therefore the place to treat of it further than to observe that there is such a power though dormant and that this ofience may be legally brought within its reach. The fourth and most usual remedy is a summary trial. Magistrates having jurisdiction up to a fine of five pounds including the costs. He who takes a summary trial waives all other remedy (which indeed .s removed by Statute,) the last is binding to the peace. In so doing the complainant must swear to a reasonable apprehension of future violence, and that he is not animated by malice or revenge, but simply desires to bind over his opponent for his own safety. It is to be noted that thi? remedy is for a prevention of a repetition of the wrong, not for its punishment, it does not bar the complainantofanyof his other remedies except an" informa- tion " or summary trial, but it is not usual for a magistrate to grant a warrant both ibr the peace and for trial criminally, though bail taken for appearance on criminal prop ■ • Uion sometimes includes (during the interval elapsingbefore thoprosecii- tio. ,ysurety to the peace. 'J'he powers of the higher criminal courts in dealing with common assault as with most or nearly all misdemeanors at common law are very wide, no period is fixed for the duration of the imprisonment which may be indicted, and the law jilaces no limit on the fine, but the imprisonment on in- dictment for this offence must be in the common gaol, and may therefore he regarded as limited to the period for which ordinary iniprisoniuenl not in ii penitentiary can be inflicted. And it seems also that this imprisonment for common assaults at common law may not be with Ial)or. I shall presently put a case in which it would seem this rule may be departed from. Assault may be committed in connection with or in the completion of other offences both felonies and misdemeanors. Of tlir latter, is assault and battery to be dealt with in its place and so assault and false imprisonment. Sf^me assaults are felony by Act of Parliament, and assaults may also be committed in attempts to commit felony, as rape or murder. All these must be looked for under their several heads. It may be asked are there any assaults except these ? I answer, yes, any ofience against the person of another and against his will, if not other- wise described or amounting to a more serious ofience, Avill be an assault whe- ther it amount to a battery or no. Of this nature, Avill be ill usage by the liarsh conduct of a jailor, madhouse keeper, master, guardian of another or any person in the charge of another's liberty, if the same be iiot justified by the cir- cumstances. In an indictment for assault on an apprentice, neglect in supply- ing him Avith sufficient food was amongst tlie allegatioivs, and doubtless such neglect of a ])erson who was dependent on another and under their control might be described and punished as an assault. So gross and improper treatment by a surgeon even though not offered with the intent to do injury will be an assault. So with the giving of deliterious drugs not sufficiently VTulent to be poison. In indecent asrjanlts, the consent of a parent . 9 und(>r a niirstiitcnuMit, or si I'liiiUic or » young cliikl vill not. render Itic act. less an assiuilt. Any person may he llie stibjeet of an ass'iult. Consolidated Slalutes, Cap. 91, ss. ;J1 up to 4.7. • A person indicted (or a higher crime may in many eases he snl)jeeted to conviction for assai'I^ (jr lor a simple assault, this is by recent well known Statutes, (Con. Stat. cup. 99, w. 65, 6(),) hut it is said that under the late Act concerning injuries lo the person, wiih or without a weapon, known as Cam- eron's Act and which is nearly a copy of one of iA)rd CamphelTs, no convic- tion will he had for simple assault, hut a count may he added for it to an in- dictment for a wounding within the Act. So that the jury may convict for either oIUmic;'. In other olR-nci's this is to lie no^ed, that joining a eoimt for a commnii assiiult to an indictment lor feloniously wuniuling or shooting, or Ibr highway rol)bery is to he avoided, us the judgi'S have held it misjoinder and (iital, on the ))rinci|)le that a misdemeanor and a lelony ought not to he and cannot be joined in the same hill, but it is competent to the jury in such felonies to say not guilty of the felony wluM-eof the prisoner stauils indicted but guilty of a.;i assaulter if they })leaso simi)le nssanlt, Tlie imprisonment idlowed on such a conviction is not to exceed tliret- years, and in practice I lu'lievc it l.as n<'ver exceeded one, and it seems tlu; [irisoner may he sent to Kingston (or two or three years, (jiit it is a question if the in- fiertioii of the word sinipli' might not jirevent a sentence to the jieniteiitiary. Every thing which will justily a battery will justify a simple assault, though not it seems by deadly we'.[)Oiis. Jt may l)e a question whether an assault with- out hattery may not be culpable when committed with a deadly weapon, under circumslances which would completely justify a slight or moderate battery, and it is easy to imagine cases in whicli the assault might be a more serious offence than actual battery. The nn'orse of this is the general rule, and the battery usually a greater oliencc than mere assault. Affray. See Iliot. Agent. — 'fhe cases in which dishonesty by au agent will be criminal will be treated of under the heads of larceny and embe/.zltmcnt. Arrest. — Malicious arrest may he tlio ground of an action, to support which several ingredients are wanted besides the malice. In some cases it may make the ground of an indictment of which we will treat under its proper head " False imprisonment." ARSON. Arson. — The wdful deslniction of property by lire is in almost all cases arson. The odenceol arson is completed by the " settingon lire." The setting on lire of a dwelling house a person being therein is capital, and so of a ship in like case. Every arson is a felony. For particulars of the olfence look to the Consolidated tviatutes of Canada, Cap. 9'i. A man may burn his own house if it be not insured, mortgaged, or other- wise the subject of another person's interest, or jeopardise other men's houses, and 30 with his other properties. In case he thereby fires other houses wilfully or by siicli gross disregard of consequences as to constitute legal malice, lie may be convicted for arson. Arms. See Riot, and 2 Ed. 3, c. 3. Assembly. See Iliot. Attempts to commit crimes. — Every attempt to commit felony is a mis- demeonor ai counuon law, and there are some attempts dealt with imder * Impori.'d iSlatuU's, A'AEVv/.. c. 6,— 22& 2] c. 2, e. 'Js. 136,-9 Ann, c. 1«,— 9 Ana, c. 14, 8. 8,-6 (;. 2, c. 21. 10 - ■y oc(!iir. As ifjclenaetiiior nt irimc us its ors, oxcrpt for It my it tnkcs purposes, ihe jiisticos. The ether with all (ilHcers, I will ng remands in ea]). lO'J,— '24. Statutes wliioh are noticed in the class of olleiices in which the a general rule un attenipt to ''oinniit a niisdeniianor is n ni eonuMoii law". Jn 1\\'jM Treason a han; alli'iiipt will anioinit to (he sau conipK'iion. Hah,. — Til treason justices cannot take ]);iil. Tn inisdemenn hrt'ach oC prison, one justice may admit the jiarty to hail. Jn le two justices to do this — hut for this and a s^ood many otiier Inspectdr and Superintendent ol" I'olictHias the jiower ol" two law has provided aj^aiust the ahuse ot this ])ower which, tog other instances of misconduct l)y majj^istratesand other ministerial treat of hereafter. Formerly it Avas not usual to takf! hail duri (blony, hilt now, one pisticc; may do so. C]oiisolidated ^^tatutes ( TOO. 3, cap. 1, — 1, .") \ ic. cap. 2t. JIariuster. f>ee Attorney. nAUiiATRY. .*See Ahnnteuiinco. JJATTEIIV. JJattery is an injury, however small, actually diaefothe person of another in an aiiu'ry, revenfrel'ul, ruile or insolent manner, spittiuii,' on a man, jostlin'i' liini out of the road or in any way touching him in aiiiicr, arc all piveii as in- stances of the strict delinition oi' a Lattery, and tl.e li)llowiim' arc i^ivcn as instances of a touchinir or contact which is 7i(>t a hatti>ry. To lay one's hand on u man if it he nccrs^iiry to servo him v/ith a jtrocess, to lay one's hand goitly on another af^ainst whom an otticer has a warrant and to tell the oflicer this is the man ho seeks, fir a horse holtiiig williotit any ftmll in his rider and riding over a man will not he a hattt-ry, nor will .suit i.e lor it. A violence done to llu* jierson of another heing in the full ])ossessioii of adult reascai with his eonsent and knowledge of its purpose and effect will not he a Lattery if done with no hostile intention. Thus athletic games such as wrestling, hoxing, tfcc, when not immoral or ilaiigeroiis or so pursued as to attract crowds in inconvenient situations may be pursued with legal impunity. It is not Lattery to pursue them under these restrictions ami tlu! restriction given inilie proeed- ing seiilc:;i"e. It is a gfiod defence, that a hattery was eoimuilted in sport Avhere the siil)ject of it may Le reasonaLly ami stiil more if truly th'tMiied a conscmting jiarty. >^ii'di as iiitiiiiat(> accpiaintan'H'S "larking'' together as it is called, or the like. Under the head of assault .1 have already treated oi" almost all that need Lo noted i:i Lattery, but will add those instances of justification to a Lattery. Jfan otiicer having a warrant au,!iiiist a man Avho will not sutler himself tu he arrested, Leat or wound hiin iji an attempt to take him, he will he justified. This presumes the warrant was icir a iiiisdemeaiif.r, in which under such circumstances he could justify heating or even wounding, but that is the most ; were the pursuit is that of a felon the same circiiinstances may justify killing him. JMany ])erM)iis fossess the right of inllicting ch:;stisement, as parents over their children Leing under their control Ly retisoii of their tender years, master tradesmen and ship captains their apprentices, gaolers their prisoners, keejicrs of lunatics their pal:'eiit,sand some say a niasti r may lieat his servant, (though in many cases I douLt if that will be. allowed in any c^iurt at this day.) jirovided the chastisenuMit in all these eases be of a reasonable nature and proper to the ctise in which it is applied. In all these cases persons pre- tending to an aufh'Tity they do not possess, will make themselves answerable lor its exercise, and excessive chastisement will, in any case, Le a battery. The instances in which the law will allow an unaiithorixed private f.eison un- permitted to lay his hand upon another arc few, and that such Le done with ■ great Ciiiition iippi^ars Iroiu the (j!)servatiiiii, tliat il u lauii iif^lil with and heat one whu attci'ipls to kill a straiiffcr, or if lie peiilly lay liis hand upon anofhiT to stay him from iiieitiii£r a iloii against a third party, or if a man (orce a sword from one who threaten to kill another therewith, it is no hattery. All matters of jnstitication or even of extennatiun in mijst (hiit not all cases) may he given under the plea of not iiiiilty. It will he a jiLstilieation of ii. buttery *.o show that it wasdonc in self-ih'lenee. Thi- iiisLaue(.s given ui'thi.sin the books show very [)lainly that the law while it admits defence does not en- courage it, and always Ibrbids revenge, as thus. •• if I beat one (without wound- ing him or throwing a dangerous weapon at him,) who wrongfuily emlcavors with violence to disjujssess me of my land or goods, or the goods of another delivered to me lor safe custody, and will not desist upon my laying my hand gently upon him and disturbing liiin," it is no battery. Tliis is to be under- stood of a wrongful act being a bare trespass, were it (elony il would bo a good excuse lor more than battery. t)r if a man beat or as somi.- say main (and this seems the better ojiiuiou) one who makes an assault upon him or iijion his wife, parent, ehild or master, esjiceially if he did all he could to avoid fighting before he gave the wound, hurt or blow, it is no breach of the peace. It is disputed how liir a master may defend his servant by force, none doidit the right of the servant to deli'iul the mastir by Hjrec; as above. Mode- rate force niay be used to (>xpel a trespasser, but it must be necessary ibrce, and the trespass though it will justify a gentle push, or ejectment from the premises by pushing in an (a'dinary manner will not justify the chastisement of the tres])asser by blows or the like, This examplo has Ixjci given. If a man conduct himself in a disorderly manner in a public liouse and reliise to depart when ordered to do so, tlu' landlord is justilied in putting i.is hands upon him to put him out, the same has been held in rehrenee to a man per- severing in disturbing a public meeting though in these cases the man was not a trespasser (ih hiitio. \\\ all cases however, nnneci ssary violence will make tin; defendant criminal. Where the law specially orders corporal chas- tisement the executioner is protected unless he exceed his office and if he do he may i)e made to answer as for a battery. Whore killing a man "vvill be justified so would beating him, Avhere imprisoning the man would be justitied, a battery in order to eflect the imprisonment necessary thereto will be justi- fied. Persons coming to the aid of justice, as in suppressing riots and atlrays and in some other cases, may justify acts which otherwiso would be batteries. These cases will lie dealt with in their proper place. Any j)erson )nay bo the subject of a battery whether a good witness or no. By the few instances given of jnstitiable interference in the quarrcl.N ol third parties, it is evident tliat batteries justifiable by an assaulted party are not so by any stranger who may come to his assistance ; on llie other hand the maxim qui facit per idiinn, facll per sr applies fully to a battery. ■ He who orders it. is a principal in the crime were he a hundred miles oJl'at the doing of it. If a constable see a battery or any other breach of the peace committed within his jurisdiction, he should arrest thcol]<,'nder. A magistrate should both arrest and hold him lo bail. But I doubt whether he could convict him for battery on view, and I think he could not. la an action tor assault and Ijat- tery it will be a good defence that the i^laintilf chastised the defendant in re- venge for it. On a criminal prosecution this is no defence. Words will not justiiy but may extenuate a battery. In a summary trial it is sometimes though not oflen proj)er (where other evidence is not available) to plead guilty, and let the defendant make oath to the provocation offered to him by the complainant, and this course may also be proper where the prtjvocation is not immediate or within twenty-four hours, and might be ruled out, but where it is gross enough to have effect upon the court in giving sentence. As a rule the provocation which extenuates a battery should be immediate — the blood 12 •shoulil not li:iv(! time to cuo], bclbre tho blow is struck. It is nsimlly ])iit not invariiil)ly (in siiiinn'ary I'siscs) the jiractii-c on trial to confine tlio nvidonce of tlic; jirovociition to tho diiy t>ftlie olilMice. J^iittcries nmy ho thus divided common assanlt and battery, of which in all its inoiik'nls wo have trcaiod alroady. and ag^^ravatod assaults, which most usually though iicrhaps not necessarily inr'ude a battery, and an aui^ravated battery is known us an aggravated assault. There are som(>agivravated assaults by statute law, for instance, an assaiiltat an cU'Ctiiin, ai:d so fdr assaults on partieidar |)ersons s[)ocially protected by llieir ofHee or by the circumstances of tin? case, umounting- to an assault uj)on them in tho discharge of a public duty. There is also such a thing as an aggra- vated assault at common law. Tiiis is supposed to be a case in which the facts do not amiamt to a wounding (>r a permanent injury or a wilful attempt to take life, but in which nevertheless tiie corporal wrongs and hurts done are serious ami the violence too great for tho matter to be properly treated or des- cribed as a mere common assaidt or battery. In such cases a summary trial is not an aderiuato remedy, and though nnder the alia enormia (other wrongs done to the prosecutor) which generally but vol ?7ercssanli/ concludes an indict- ment Ibr common assault and battery, all the particulars constituting the ag- gravation oi'the assault might be ])roven, and the discretion (d'the judge is a >vide one in respect of punishment on conviction, yet it is proper to set out the particulars. The reason is iloubtlcss that the conviction may upon the fac(! of it justify a sentence commensurate wilh the otfence. Of wonnilings, maiming and similar offences we will treat in their proper place. Consolidated Statutes, Cap. i)l,ss. 37 to 4.7. liAiMi'rs — Assaults on, in the execution of their duty are [)rovi(led for by Statute. See Consolidated Statutes, cap. 10.'). For the rest the common law of Canada will teach much about tbeiM 'which is out of the scope of this work. Bawdy-house. Sec Nuisance. BIGAMY. Bigamy is the contracting of a second marriage during the life of the parties and duration of the first marriage. The ofK^nder may be tried in tlie district in wliich he is apjirehended or is in custody. (Consolidated Statutes, cap. 99, s. 9.) In order to prove the ?.harge the prosecutor must prove the two mariages. 'iliis may be proved by any ])erson who was present and can identify ihe parties, or by producing and proving an examined copy of the registry of the marriage, and giving satisfactory proof of identity, and this will he sufficient without proof of license or publication of banns. The marriages must be valid and the parties must not have been divorced by law. If cither marriage v/ere in a fijreign country, proof that it wiis solemnized in the manner usual in that country will sufiice, and it appears to bo immaterial whether such foreign country be pagan, christian or what not. Bigamy in Canada is ])rosecuted under a provincial statute, (Consolidated Statutes, cap. 91, ss. 29, 30.) But it has been questioned and not yet decided whether tlie I'arliament of Canada has power to Legislate for bigamy, when one marriage has l)cen contracted out of the country, and it has been doubted whether the Parliament of Canada can lawfully divorce man and wife or no — though the exercise of such a power is now fully established. The first wife or husband cannot be a witness, the second may. The prosecutor must show that the parties to the first marriage were both of them alive when the second was contracted. The criminality consists in marrying again pending a lawful marriage, therefore where there are several subsequent marriages, one of them only ought to be alleged, and the legal criminality only attaches to tlie violation of the first and lawful mar- 13 riupc. It is u good (Iclctict! lliat tlio wife or liiisbiiiid ol'tli'' jtrisotior has been coiitimiully ahscnt I'roni llii! other liir tht- spai-c (irstmn y<'ar.s last past, and was not known to tlic otlu-r to be living within that titnc A divorce IVom the (irst jirevioiis to tlio second niarriaa;e is a f.ri>od dt'lencc. Also that tin? I'onnor marriaf^e was declared void by a court o('eoin|)etent jarisiuclion ; Imt it is oj)cn to the Crown to object to such decision on the gi-ound ol" fraud or eolhision. Bigamy is a common law felony, but Iho jurisdiction of the common law is con- fined to cases in which both miirnagcs iire contracted within the realm, and in which the first if not both marriages ar(! valid at common law, and it would appear the vt/uir at common law mtist be laid in the place in which the second marriage was contracted. ]t is not usual to prosecute bigamy at common law. To particularise the circumstances which will make a marriage void, the irregularities which will fail of thatellect, and the deceits which may be prac- tised with intent to defeat the law, and the cases in whicli the law will pro- nounce them futile and of no effect, would exceed the limits and objects of this work. These general instructions should b(; borne in mind. To examine the provincial statute and compare it with niodcni English Statutes, and where the exact words or their substance is the same to examine such jireeedents as may be fi.)und. The judges will probal)ly admit them. 'I'o examine such English Statutes as were in force previous to the accession of Canada to Britain, and see whether by their wording their efU'ct is limited to England or no, if not then to examine English dciMsions upon them. To see what was anciently settled as the common law of I'inglandjlbr reference on any comnKMi law indict- ment and to examine how (iir tjio same will apjily to an indictment under the statute. It is to be observed that the authorities appear to incline to tlie opinion that I he prisoner's ad.^'ssion of a prior marriage is evidence that it was lawfully solemnized. A conviction where one marriage was in Ireland and the other in Canada was lately maintained by the Court of Appeals in t^Uiebcc. Blasphemy anb prokaneness. — The law in reference to these oflLMuM-s if? never enforced in these days excej)t in the case of blasphemous lihel which shall be considered in its place. Denying a God, ridiciding the scriptures^ talking against Christianity, and even (in England) against the established religion, are indictable crimes in contempiation of law. As to the last of these it might be a question \\4iether it would apply to Canada or not, but however ingenious may be tlie speculations to which this question might give rise it is not likely ever to prove a matter of jiractical importance and therefore should not be here discussed. Magistrates may fine persons summarily for profane swearing, but it is never done in these days. * Breach of trust. See Larceny. Breach of prison. See Escape. Briherv AT elections. See Consolidated Statutes, cap. 6,ss. 82, 83, Si.. Bribery of public officers. See Misprision. Burglary. See Larceny. CHALLENGE TO FIGHT. It is indictable as a misdemeanor to challenge a man to fight a duel, or to provoke him to challenge with intent to fight, or to provoke or incite him to commit any other breach of (he peace. To be the bearer or messenger of any challenge or message of provocation to a duel or other breach of the peace is likewise indictable. But it would be a good defence that the bearer of a closed c. 33. • Imperial Statutes, 5 G. c. 21,-1 W. 3, Sess. 1, c. 18,-9, 10 W. 3, c. 32,-22 G. 2, 14 letter or [iiiihijriioii.s im'xsiif!;!' did not know tlif puriKUt tlu'rctil', and tlir i;nilt\ knowlcdirc! of the iK'jiri-r of micIi Icltcr slionid ii])peiir l)y liis iiPtions or words, tfcc. Ill tliis ofil'iicf! it IS to he ohsrrvcd lliiit tlic mtciition bciii!^ the orin .■ must 1)0 proved expressly, no jrro.^snciss of hingiiiif^c will support the cliarf^e if the intent be w.uitiiiLr : on the other luiiid tlio proseeiitor is not confined to the words iietiiiilly iis(m1, in' iimy prove, tlie intent by other words or conversations at other times and pl;u'cs,iind the niaiincr of ntterinj^ a spoken dehanee, chal- Jcn^o, or provocation, may lie iiiul nsiially is material, and thorelitro tin- manner and f^estnres oftJK' delriidaiit, and th(> like may be triven in eviflence. It is n. u;ood dcfenee that the intent to light wns wanting as that a challenge was sent in .s[iort; for instance, to frighten or surprise the recipient and without hostih; motive, or th;it tlin provocation was offereil to draw a challenge, in order jillerwards to bind the [nirty to the peace. Wluither words used be sf)okcn or written is not essential to the comple- tion of this olFeiice, but po>tiiig a man as a coward is a high nggravation of the offence of challenging and may be included in the same indictment. The mtcinfs of the challenger or even jirovoker (if the special circumstances allow it) may be variously stated, the intention to kill b.jing the most aggravated. Formerly the fact of the challenge having iiriseu about money won iit play, was an aggravation anil such cases were provided lor by n statute. 9 Aun, Cup. 14.. To challenge some persons, as clergymen, justices of the peace for acting officially, lawyers for acting professionally, iVc, is more henious than to challenge others. The oflencc is panishaliie by fine and imprisonment, and binding to the peace, and is very much at the discretion of the court who are competent to take the circumstances into consideration as to the sentence. Coin. — The various ofTmces in reference to coin, arc dealt willi under various ."Statutes to which look lor the law as it now is. Consolidated .^^tatutes,, cap. ;)o. CoMPuoMisK. — It is a mis leineaiior tn compromise penal actions or informa- tions for money, or to com|K'iiiul any ])enal action brought at the suit of a common informer. To constitute this oIKmicc it is not necessary that any information should have been laid, and a ])arty may be indicted for taking money for refraining to prefer an information as a common informer, though in truth the offence which ought to have been the subject of the information had not been committed. Compromises of criminal charges without leave of the court are illegal, and leave of the eoiirt is only given on misdemeanors of such a nature as chiefly affect the private prosecutor and of little conse- quence to the public. All other compromises arc void. COAirOUNDING FELO.NY. Compounding f-loiiy is where a person whose goods have been stolen, takes them back again, or takes other amends not to prosecute. But it is no offence to take back one's stolen goods unless some favour is shewn to the thief. This crime is a misde-meanor, aud j)unished with fine and iraj rison- ment, except when attended with such maintenance as may make the party an accessory to the tlicll. It would seem by Hie authorities on this head that a man may be rightly indicted us an ueet^ssory aft^er the fact to a robbery, burglary or larceny comnotled against himself, where for a valuable con- sideration he lias aided the })rincipal felon to fly or escape from justice. All expressions however ambiguous may be given in evidence and their purport judged, the sole question being Avhether the expressions made plain the intention to condone the felony (be its degree what it may) to tlie mind of the felon and whether the intention of so condoning existed ui fact. Tukinsx ii reward Icr iH'Ipiii^ to potuls stolen. Iliat i.s n<.M-eeiiinf (iir rown"! f(» procure stolen ijochIs willioiil, iiroseciitiiiir the liiiefor (iiseovenii^^ hiiii to jiiii- lioe is silso indictnlile. Jt is siiid Hint udvertisiiiL;: iiir stolen goods with uilcts ol" iuipiiiii'y, IS iin odiMiee at rommon law I Ii r statiili! law on tiie siimc -suhjcet, see (.'oMsolulated Slatiitis, Cap. !)-i, s. 7!). CoNCKAi.iNc; THE iiiRTii Ol' A niii.n. — It it is a iiiisdeuioanurat Niatnte law fur a woman to conceal the hirlli ola child, and ii is also a iiiisdcnieaiior to coun- sel her to do so. The euncoalineiit intended is a jioriiianent itisposul of the hody and conroulnicnt td" the birth. The eliiUl nuisl ceuse to live, or never have lived, i' matters not whether il was Iiorn dead <.r alivi?. A eoiiviction fur this ofleiici' may be had iMther (jh an mdietnuMil I'ur the euiieealin^'-, kc, or an indictment lur the murder ul llio child on the accpiittal of the mother thereof. Consolidated Statutes, cap. !)I,s. i. (roNspiuArv. — Tf twot)r more persons conspire to do an iiiilawlnl act, or a lawful act by unlawful nunins, it is a misdemeanor at common law punished by hneand imprisonment, whether any act b.; done in ))ursuanceof the conspiracy or no. Jf a felony !.e committed by one conspirator in piirsiKatce nfihrvonsjnmcy, it will make felons of them all. A man and his wilb cannot conspire, for in contemplation of law (cM'iminal) they are one;, but they or either of them may be convicted if another person (Minspiri; with them. If any two be indicted and the proof fail to come home to one of them, both nuist be actjnittctl for a man cannot conspire by himself. ]f two be indicted and one die, or one appear for trial and the other iiy his country, or il' two be tried lor the con- spiracy with others still at large, so only one be convicted, the conviction is £}0od. It is said that a conspiracy to commit a mere civil trespass is not indictable. But this must be understood in a very restricted sense, as con- spiracies to do malicious injuries will be indictable, where the injury itself would not l)c the subject of indictment, as conspiracies to disfame or to maliciously indict, and so in a conspiracy to defraud il does not appear neces- sary that the fraudulent actor device should be of itself indictable. Resides the criminal prosecution of this ofience, the law allows the party principally injured to recover damages by an action on the rase. To support this action there must have been un overt act not so to SNUjipuiL '1'" indictment. ' Conspiracies by W( lioiu llio |iluct! of interment, and /rum those circiitiistiini'c.s tlie fjiiilt of tlie dcfi-ndant nmy bo inlcrred. Jftho body cannot l)o idoiitiliod it inuy b<' liiid as lliat ul u jicrson to the jurors unknown. Dkooyinc Cim.PKEN. !Soc Cnnsolulalcd Statutes, Cup. })1, ss. 21, 2S. Demamunc. monkv witli nienaros or lorce. See Larceny. Doc; .Stealinu. See Con^folidated Statutes, aj). C92, s. .33. DisoiiEYiNG THE OKDEKS of a Magistrate. See Mis])risiot). Dissenting Chapel. See Hiot. DisTLRrnvt; PuDLic WonsHiP. See Consolidated Statutes, Cap. 91, s. 35; Cap. ;)ti,K. 18, DisoROKULv House. Sco Nuisance. Drowmn(;. Sec Murder. Uri.'nkenness is no excuse in crime, and when pmiisliable. See Toiice Ordinance, 2 Vic. c. 2. Duel. See Murder, and Consolidated Statutes, Caj). 7S, s. 3. Dying Declauation. See Murder. DwF'.LiNG House. See Arson — Larceny — KurgUiry — liiot. Emdezzlement. See Larceny. Emhraceky. — Is where one tries to unlawi dly influence a jury, (to solicit, to j>rocnre,touil vise, even to inform or instruct in a matteVofprivatt- right,) or in any way to labor much more to bribe or intim.dato u juror is embrucing. Bribing and throateniii"^ jurymen may bo and should bo treated as distinct substantive ofTon- ces inasmiuli as they are misdemeanors of themselves, but they an^ also actsol' embracery and highly criminal. To labour a juryman to aj)pear and give a just verdict is no embracery and one interested may justify it. Acts of embracery may bo treated as contempts when committed in the liice of a court of record and it is said so may perjury when very gross and apparent. Any of the above offences may 1)0 commitcd by a lawyer as much as by a layman, and all onences of this nature arc aggravated by the fact of the culprit t)eing a lawyer, but lawful open pleadings can be justified by a lawyer. Enemy. See Treason. Engrossing, Forestalling and Regratino are misdemeanors at com- mon law, punishable by fine or imprisonment or loth. Engrossing is the getting into one's possession or bnying up of corn or other dead victual with intent to sell it again. Prosecutions lor engrossing are contrary to the general tenour of men's opinions in these days, and it would not probably liavc been held a misdemeanor at any time to engross for sale beyond sea in any iroe or lawful trade, as the word to sell it again seems to import that the increasing the price to the people of the realm by sell- ing again to them was the oilence, and that it was not intended even in ancient times when the state interfered largely with commerce to prevent foreign trade in dead victual, or even to punish a substruction of the amount of food by hoarding. In engrossing the intent to sell again must be established. This may be done by the defendant's admission or by proof of his having actually sold the dead victual, or by proof of some other circumstance by which the jury may infer it. Regrating is the purchasing of corn, or other victual in anytnarket and selling it again in the same market or in any other market within four miles thereof. tor 17 F()iiKSTAi.i.iN(.* is tip' Iniyiiifj or iMuitnicliiif!; for ;iny iinrcliiuKli/cor victiiul nil the wiiy to niiirkrl, or ilissinuliiifi iicrsons Inuu l)niii,Mii^;' llicir ;fooil> la- |iio. visions llidv, or |icrsiiiuliiiM iliciii to nilmiu'c llio price w luii llicrc As to tlit- (iviilciico o» iiroscciUioiis lor llicsi; oI1(MU!i;s, it is to bo oliscrv<.'i.l lliat ii viiriiuice bi!t>v(Hni tlio iiidictiiR'nt iiiicl tin! {•vi(l<'ii(M! in tlio (|ii!Hitity oi' victiiiil, us the miiiilii'r ot'f^i'csc, woijilil of fliiosc or the like, or its to ih,- |irico sociiin iniiiiii- tcfiiil. (I'luscTiitioiis li.r nil liio iiliovc olK-iiccs i»y linlictnuiit iirc disiiscd). K.NTHy, s«r Forcilili! i-'-iitry iiml ncfninor. IISCAI'E. If a iniui I/rii:;^ ciiariit:!! u idi any criim- cscupc out ot tiic koc[iii)i; qC liim wliu lius him in lawlul custody, !>•• may lie nulictod li'r a mis- (Icmcaiior, and (»ii roiiviction juinislicd 1>. 'if and im|irisoiiiiiciil, and so nay tlu; conslahlc or other jicrson iaul'iidy charged with tiic prisoner he indicted, and on convii'lioii lined or . [lii.soneil, or hoth, A vohmtary es- cape is citie wiirnlly allowed. 'I'his makes the cii.stodiuii iriiilty of treason, felony or misdemeaiu'r, according to the olleiice liir uhi(di the prisoner is convicted, and if the ))risoner he nut first convicted it is still a misdenicanor as against a eollStl^l)le or other. An iiidictment will lie liir negligent escjipc, Ihongh the imprisonment must he |()r some eriniinal matter or ii 100 deht to make the ollicer or jiersoii liahle criminally, yet the guilt or innocence of the jirisoner is immaterial provided he was lawiiilly in cnstody, as under a siillieient warrant or other cireunistaiiee jnstilying the iniprisonmi'nl, such as a cliar^e of felony afterwards sn})portcd In' a conviction. 'I'he okh r liooks seem to make a distinction in all eases between negligent and voluntary escapes, which seems supported hoth by reason and precedent, and hy these it iipjiears that the description of the! escape should be sustained hy some kind of proof, and that its being voluntary is not a matter of Lare inference like negligence, a modern authority being the other way. A rescue is a good defence to an indictment lor escape airainst a constalile or other person in charge of a prisoner, if the delijiidant has done his duty to the best of his ability, usiiallv shown by his having made fr(!sh-suit (or pursuit) after the prisoiicr. Jhit ii^ the prisoner rescue hiniself it will not of itself excuse the constable (iir he might have raised power to aid him being in authority ui:der the (^ueeii so to do, otherwise if it be a private ])erson, for a private person has no authority to raise power. Tf tlie officer or jierson so closely follow the fnsh-suit as never to lose sight of the prisoner, it is no escape. If an officer voluntarily suffer an escape, he cannot take the man again on tlu' same warrant, hut he may be taken on a new warrant, or without warrant, where he might have heeu'originally lawfully arrested without warrant, otherwise if the jinsoiier escape againsl his will. Unreasonable indulgence is an escape in certain cases as sufleriiig a man on f)ail who is not bailable, allowing a prisoner to go out of hounds or the like, ihit a man shall not be held guilty of treason or felony for such an escape as tin's,, for unless he designed the party t(j fly from prison or avoid execution, it is but a misdemeanor. W a prisoner be on record and his name called over and the gaoler says he cannot produce Jiim, and knows not where he is, it shall be deemed an escape and he shall he fined for it, but it is not sufficient proof alone of a voluntary escape. It seems the fine is to lie imposed upon the confession by the gaoler in such case and without a jury trial, in fact that the gaoler is sufficiently convicted of negligence by the circumstance ]ust stated. (This does not seem to accord with the modern opinion referred to on voluntary escape by a gaoler.) The guilt of voluntary escape cannot be avoided by a subsequent pursuit nor the guilt of a negligent one by the killing of' • Imperial Statute, 5 & 6 Ed. 6, c. 14. 2 1^ tilt' inisitiicr ill tin- |i!irsiiil. il'aii ollici-r iillow his prisoiiur to coniiint suicide kiiou'iiiirly it is (I'luiiy ill liotli dl'tliciii. Il'tliroiiirli lU'irliirt'iicu it isii iiiisili-iiu'iiiiur ilt til!- nllii'iT. ill citlicr i-Afr llir suicide is iiii ('V!i|ie. 'To cuiislitiite nil csciiitc tlicre iiiiisl 1)(' ;iii Mctiiiil Jirresf nr iiii|irisimiiiciit, lur iiistjiiicc llie mere si*;!!! vf tlic piis'iiK-r siijd cxliiliitidii (il 11 wurnint or incro words ms -a |iroiiiis<' t » go ()ilieli V v\'ill Hot limkc siicli I'listedy IIS will constitute iili cscjipe, mid IIk r-iis- lodiiiii iiiilsl lie II person U'lioni the l;i\\ ri'Co:r|ii/,es. Hilt ;i person WT'ijiiiliilly tiikiiii? on hiinstdra luwiiil oliicc will not he pmtcctctl hy his wrun^' in iicliiip; n.s !i i.Miik'1'. Only the iierson who vohiritiinly nllows tin cM-iipc onizht to hi coii- viclel I'or :i volnntiiry csiMpe, hilt the slierili' iniiy he cunvicted iis fer ii '<:li- g(>iice Ml I ppointin^ III) improper person IIS pioler, wher.- the :r;|(i|,ii- j^ jji ilty ot'ii vnhiniiiry c'scnpe. Nearly allied to csciipe are the cniiics of ur.scri; \Nn imi'.ACii or I'liiso.N, thcrefon* we will consider them under this head. 'I'o aid II jirisoiicr on cliiirirc lor treason or lehmy to escape or to atfcuipt to esiMpi' is I'clony, and to do the same hy any prisoiKM' (or iiiis(h'incniior c r dcd)t to tlie iiiiiouiit of JCliW, is inisdenieiinor, whether any escape- or aMrinp! he mado or no. So conveying' or caiisiiiir to lie conveyed ii vixor or other ilis- i;iiises, or liles or other instrninciits, or arms into a jijaol is leloiiy. 'I'he. coii\ cy- inj^ to a ]irisoncr or any other person in the uaol, (or tlio use of the prisoner of any of ihe arlich-s nhove named without the privity or consent of ll c keepi r is deeincl siidicieiit proof of the (tlU-iicf. Thi! prosceiition must ho coniincuced within one year. liiiKAi i( ov Pkison is where a man heinj^ lawfully condned in ii liuvful place of coiiOiienient (which must he jiroved as descrilied in llio iiidic.t- nieiit) hreaks out (the manner of the hreukin^ .slioiild lie stated in Ihe indiclmeiit that tlu^ court may jnd^e lis snlliciency.) If the prisoner he under charge of I'elony or treason, this hreacli of prison is felony ; c misdcmeuiior, it liio cause? of iniprisonnieut Ix? less than icdony. TIk; escajio (if the prisoner must hi- proved if tiie indictment for hreakiii;^' he lor felony othcrw ise it seems if tlir a misdemeancir. 'Jiioro iiinst lio an actual hreakiiig, but if lh(- hn^akinii' he accidental it will he siitiicieiit if done in the attenipl to escape. A very sliaht hreak M'ill sulRce. 'J'hrowiii,u- down sonic loose hricks hy ac(-idi'ut in i;<.'ttiiig ovi:r ii wiill, was held to ho a prison breach. Jt is said thai it is not material Avhetherthe prisoner he S"''ty of ihe. eriiiu' lor which he was in prison or not, yet if lie can prove no .such i-rinic was comiuitled or he was coulined without reasonable cause or he was siibse- (juently aeipiitted, it wi!l Ik- a i^ood defijuce to the indictment fur the breach. Ukscl'i;. — The resi-iie ol'a traitor is treason, and c>f a i'elon, felony. A jirosecn- tion llir either of these crimes must be sustained hy th(^ previous conviction o( the traitor or I'elon and in case of the rescue of one coiilined (<>r misdemeanor it is misdemeanor, punishment, line and imprisonment. Uescuin^- a murderer out of prison or on the road to ( xecntion is by law inore criminal than the rescue of other felons. Jt is also a misdiMneanor and iiidi(-table to rescue cattle (taken doininage (Uisant) out of a pound aiul so in a case of distress liir rent. Tn rescue that is a i!;ood n's.sor used no ^iesliire wliicdi would lia\c consliliileil uu tissaiill.. Still llic ini|in.M)iiinenL rei|iiire.s liotli a eerlaiii tinit'iiiitorfbrce and also ret(iiires a positive deteiitioii tliniiiLilia Very .sliti:lil dcteiilion will siiliice, even lore I Illy d('taiiiiiiome cases a ci\il act mil liir malicious arri'sl or proseeiition is preli'ircd to the iiulictuienl. Falsk I'nKTKNCKS. See Larceny. I/'alsk Sc A i,i;s, Weights iind Measiiri's this toiiet her with every indi<'tiible fraud which may be. coininilted we will consider uiuK'r the head of Larceny. Fkntks. See Coiisolidated Statute s, ^.'■^\[^. U'2, s. .'{7. I'isii, Fisiii;iiv, Fisiii'o.M). Sec Consolidated Stulnlcs, Cap. tl'^ anil Cap. ;)3, s. 2;l Floodgates. .See Consoliihited Stjitiite.s, Ciip. M, s '2'i. roUCIBLK FNTllV .AND Di-: TAINFR Arc luisdcmeaiiors which may be corinnilled and jiro.secuted for either conjunctively or .separately and an iiidictnient tor both may n suit in a convic- tion at coniinon law, cs \w\\ as by several statutes, of the drtaiiier only or the entry only. 'I'licsi! oliences are piinisheil by imjirisonnient, in the common gaol, and line, or either, and if the ofieiic(i be by three or more it is lieipieiilly also a riot, uiid may be treated as sni'li unless till' parties have lii'cii pimished lor the entry or detainer. It is to bo observed that wliere parties are lined lor Ibrcibli' entry or detainer, the line miisl l)f( set on either of lliein severally and not on the whole jointly. On a conviction under statute, the pro.secntor may have rostiliition a.s an ellect of tiie verdict, imle.sv, tin; deleiulant hath had three years po.ssc.ssion previous lo the nidictaieiit ; olherwi.se restitution may be awariled not only af\i'r conviction but after the linding of a true bill, and in order to this obji'ct, it is jiroper Ibr the parly to alleiro he is still kept (ait of possession tlitJUi^h that is not necessary to com]ilete the ofli>nce. Where restitution may Im^ aw^arded, the proseontinc' party is ho witness neither is his wife a witness. The (b'p:ree of fiirce to cinislitiite entry innsl exceed a mere trespass, and ifthe olleiice be laid atcommoii law , the prosci-iilion must establisii more force than will 1)0 needed to sujiport an indictment under the statutes as at coninion law, the degree of force must amount j/t r sr to a public liri'ach of the peace. U iiatever force is sulHcieiit to make a iiircible entry will also sulhce to eon.stitute a forcible detainer. The particuhirs of the prosecutor's estate in the property entered or detained must be set out where restitution is sought, but not at common law. Forcible entry and detainer maybe committed liy joint tenants and hy tenants in common against each other, Imt cannot be made of any public iininclosed place on a highway, or il is said of a common. A wile may be guilty of forcible entry into her husband's house, and so will all aiding and abetting her in her violence. The violence suliicient to constitute a forcible " •20 entry is w illi siicli u liirci' us is ciiU'iiIutcil li» pri-vfiil ri-Histano*' ; it mny Im' cnii- (innl (o tliri'iiis only, liiil in tliiit cnsc they iiiust lu; hucIi fliri'iitH iih iiro likely l(» iiiliimdiili' llidsc III |Hisvssi(Mi aiiii di'lcr llifiii IrDiii ri'sisliiiicr ; llirt'ulciiiiij^ t(t (icstroy u(i('(l,s or ciiltli- is nol siillii'inil |nr tliis |iiir|)osc, in |Kiiiit ol liict lli»i llirratt'iiiii!; iiiiist. l»o ii piittiiii,' in liiKJily (ciir mid ri'iisoimhii' uppri'lirnsiiui. Vcrliiil IliriiiK. liou'cvcrjirf 11(1 iiii'i't' iicccssiiry tliiiii iicliinl pcrsoiiui violi'iirt- i\h totlic iiiiiiii iii;.n<'diiiit 111 litis 'illi'iicc, llicnclioiis ofllic tlcli'iidiiiil il'ciili'iiliilcd to fliifl tin- oliicct ur to icrrily iimy be tnkcii in \>\nco oi words, iiml so iiiuy the liK-t o( Ills liciii^,' iiniisiiiiHy (iriiird or utlciidi'd. Hiit an miry by mere trick or artilii'i" is nol (leciiii'd Inrciltlc imt, ikiIc, a |i('acciil)le entry may lie liiilowed liy u Ibrcjble detniiier. A forcibK) entry may be tniule by breaking flie doors and windows wlicllicr any one was in tlie bonse or no. Wbere tlie partv eiitcrinu; lias no rif::iit ol' entry all in bis coiiipmiy are e<|ually Rnilty. wliere be lias a riulit none art' jrnilly, save tliose wlio nse or Ibreateti \ loleiiet) orahet tlio^'e wbo (jo. With tins t\('e|ilioii tlio ri^dit ol'tbe party iluliit«'d to the property is not material. i'"orce l)ein. is killing commanded or at least apj)roved by the law. Killing by an officer of justice, or a private jierson to prevent a forcible and atrocious crime, is justifiable luimicide. So killing felons in the fact of escaping or resisting lawful custody by those who are bound to enforce the cii.slody, affrayers or rioters in suppressing the riot or affray, foreign enemies, traitors or pirates in arms, are justifiable liomicides done in obedience to and maintainance of law. Excusable homicide, where the death was purely ac- cidental without fault in the involuntary slayer, is called misadventure. Homicide sr defcadcndn is excusable where the slayer was not the aggressor, was in immediate danger of life or limb or enormous bodily luum, and unalde to escape by flight from his assailant, and no other ojjtiou or choice was left liim but to defend himself by force or to suffer in such case to the above extent, a good • Imperi:i] Statutes, 5 H. 2, c. 8,-15 R. '2. o. 2,— S [I. 6, c. 9, s. 2,-15 K. 2, c. 2, S,— 31 Eliz. c. 11-21.1. 1, 0. 15. 21 inbic iippri'lioii^ioii iifniirh ftiDrinouN wroiiK boini? liisdi'Tciici'. Sou tiiho iii)|triM(itmiiMil limy cxciinc lintnicnl*! wIhtp it in noci^sHiiry In llic cMNiitc dI'iIk- [irisoiicr iind his only iiioilc (if('sia|iinc;,iui(l he ol'iiii inruriix ;itci| ici'iin' snrli iis to iiiiutiiiit to rciisiiiiiilili' !i|i|)rfln'iiMoii of ili'iitli or ••iiiirmiiii.> ImmIiIv Iniriii.nr (illit'rwiso to !)(• oC 111! uiiln'iirul)ly ii)i:(fr;viitf(l fliiiriirtiT. Ilniuu'itlc to rsiMi|u' III! iiiiliiwl'iil or (iil.st- iiii|irisoiimiMil is imUut exiMisiililc (ir niiiiisliiiinlitcr iiriMir- (liii^ to t'iri'iiiiistiiiici's, mill lliu ^'ciicriil riiNHo (IctcriiinK' iIh' (liNliiictioii is ii.s filtovc. Aiiotlicr kind ol' I'Nciisiildi! lioinicidiMs \vlit'r(! oiu' .slays iiiiniln r wlio imiocciitlv ciidaiiKfrN liisovsii liff, us wlicri' in ii .slii|uvr('ck Ivo sci/c tlic suinr plunk iukI onu sliov<' the otln-r oiriind drown liim, or tin- like In siirh casi-s lli(> liiw I'xciisf's llic ai'f. hcciiiisc tin- kiliin;,' is not of malicf, liiit of iinliirul scll'-lovf or iiri'l'ircii' (• liir oiio's own lifi) ovlt luiotlicr's, tlu- wi.sli ol'sali'ty und I't'iir ot'd*>nlli i'ur which tin- hiw iii:ikcii ullowuncit. .ATanslaikiIITKR is un ollt-nco which iioiirly iipproaciu's oitJHT to rNciisiihh' hoinicidi' or wilfiil iiiiirdi'r iiccordinir to tin- cinMinisliuici'S under \\ hich it is coiiiiiiillcd, mill in its fxlrciiu's ot cxtcnii.ilion iiml ol' airizravalmu it is soiiip- t lines ditficiilt to distinguish it Croia tiu! desfriptions ol honiieiile wv liiivt^ iiientioned. As its sliades cd" u^ii'lt ">■>' various and iincerfaiii, a narrow line (to ordinary sii,dit olten aiiiiosl mvisiliU') separates this erune in its worst teatures Iroiii tin* hii^hest oC lelonies, und in its mildest lorin Innii total innoeenco, including; an inlinity o|' dcjirrees of jT'ii't l^etweeii its eMreiiu's. Die (' serotiun ol' the jiidife wisidy preserved hy the law is pro|iorti'(nute to these various deirrees (jf^riiilt, wliieli r this erime, tin- prisoner tuny he imprisoned in the penitentiary lor life, he may also he discliaru-ed on I'ayincni ol'u shilling or other iioiniiial tine. We may Ihereliire deliiie iuanslaiij;lit<-hicli willsnpiilliato the use ofiv deadly weajioii as to iiifikc the honiici(U! iiiaiishuijrhter only. Ifa husband find one in tli(^ act ot'a(hdtciy wilii his vvil" and kill him, tliis is manslaughter. Jl"a man pull another's noso or oIHt him >ther i^reat personal indipnity and be killed by him on the instant, it is manslauiihter. it is u good general rule that no weirds iiowi'vcr iusalting will ri>ihien the erime cd" mnrdi'r to manslaughter il" the slayimr were done with a di'adly weapon ; but if with a list or ordinary stick or otiur thing not likely to kdl, sneh provocation as wonhl extenuat(? a battery will ciiiislitiite a homicide manslaimhter. JC nevertheless there be express malice, the killing will be mnrder howi'ver great the j)rovoeation, and in all cases to reduce hcmieide on provocation to manslaughter, it is essential that the act causing the death should l)e ilone in the heat of provocation without giving the blood time to cool, and the mode of resentment must bear a reason- able J joportion to the jirovocation. Thus where a mob threw a pickpocket into a hoi's(>-])ontl only meaning to duck him and he was accidentally drowned, it W!is lioldfii uKiiislaughti r. Hut where a park-keeprr having Ibiind a boy stealing -w ood,tied him to a liorse's tail anil dragged him along the ])ark, and he died ol'it, it was holden nuirder. Where a parei.t in moderately corrt^ctinghis child, a master Iiis servant or scholar, or an officer punishing a criminal (this inchiiles aii law liil jirison discij)line.) an acciJeiital death is uiisadv(.'ntiire, but if he exeei'il the bumids of moderation, in the manner, the (luanlityor the in- struiiKiit <>[' |uiiiishmeiit. and death ensue, acccidiiig to the excess of the severity the killing is either murder or nianslaiighter. Where tho master correcteil his servant with an iron bar, and a sclujoliuaster stamjied on his scholar's belly, the killing in •■ach case was helil murder. IJut when^ a master struck a servant with a dog, because be had not cleaned it, the instru- ment and correction made use of thengh impro]ier, not being likely to cause death, it was drenied manslaiight r. t^o in a'i other eases of the same kind where the inslrnment is not likely to kill thungh imj)roper for the nnr|iose of correction and is not used to great excess,, it will be deemed manslaiighler, but if the killing be done with a deadly weapon, il will be mnrJer. It is here proper to observe that death must ensue within a year and a day from th(! injury causing it to support any charge of a criminal homicide under any circumstances. In homicid(> by correction it is observed that if he undertakes to correct, who has no legal right so to do. and death ensue, it will be manslaughter. at the least »>veii if the circimistances are such as would not ijiake it a punishable homicide in one who had the right to correct. Kii.r.iNG BY FIGHTING. — If two mou fight a duel and one be killed, it is murder in the survivor, and all concerned are either priiici])al or accessory therein. But if two fight in the heat of blood or go at once fi^-m the scene of quarrel to tiie gronnd of comb; t (say a field to fight in conveniently,) or each goes to arm himself and forthwith returns to fight his man and one be killed, it is manslaughter. If the light be without deadly weapons t)r liktdihood of death from it, such as a stand up fight with lists, it will be manslaughter if fairly conducted ; fbnl play however may be deemed jiroof of malice aforethought and so will any advantage such as the drawing of a knife, the stamping on a man when down, or the like, if it appear to be taken through anger or revenge and not in self defence. If a set appointment be made for mortal combat the killing therein Avill be murder, though done in manifest self defence, and so if one set on another with malice prepense and be beaten and retreat and on his defence kill his man, it is murder. Ifa man take on himself an office requiring skill or core, and by negligence or gross ignorance or carelessness, cause death, it Avill be manslaughter. As killing by furious or careless driving, drowning by negligently swamping 23 a hoat, oausiiiir (lentil l)y want of cnro or skill ill iniMliftil jiriicticc. llicsf arc all iiuinslaiii,diU'rs. A (ioctoi r. i-llicr jhtsoii atfcMuliiip- tli(> Mck is I oiiiid to use coiu[)C't('nt ^kill ami siitlicii'iit alteiitioii, .'i wiiiilol citlur will iii;ikn ■nclj [icrsoii answcrablr to the law Jiir all tlic cuiixcciiu'Iiocm. IIOMICI!)!: UMNTI'.NTIONAI.I.Y COMMITri;!) IV IlOrSCi ANOTHER AN LVII.. — i I' tllO act 1)1' ll'lony is iiuirdiT, and any unlawl'ul daiigorcMis act will make liiin who docs itgtiilty of uuirdcr. I'or iiistanccu trick played (iii a persmidiil ernnsehicf but iiui likely to cause death or any ^irieveiis bodily liarin, in, iKes the party couuuiltiu^' it giuUy oljnaiislaujiliter, and where the act iiiaiiifeslly eiKhmgers life, it will bo murder ilch atli result I'roiu it. Even an act perfectly innocent must Ite done with reasonable care. For instance poison to kill rats, iVc.. must be laid with a proper de£;ree nf care, and lait so that it wdl be jirol;ab!y niis- taki'U liir suaar ; so rubbish must he tlirnwn in a manner not likely lo eause death or injury, so lire arms are to be usvd wiih due care ; and ads oromissioii may make persons answi'rable lor deaths as well as acts of conmiission at least tn the extent df manslaupbtcr. In making this remark it is te. he ucfcd, thai murtler is not conlintMl to the particular means l)y \\Iiich death is eiilcted, starvation, or strangulation, or (iiowniuir, or stifling by noxious vapours, are as much murder 'if they be unlawfully done Avitli malice aflirctlioughl) as killing by itoison or the sword ; in fact if the evil irni7iatsiiin\ other ingreilieuts of the crinu- he [ircscnt it is immaterial hy what means nature may be over- come. Tlie Ibllowing instiiuccs may shew tlie degrees of reS[)onsibi!ity attach- ing to involuntary, accidental or unforeseen homicides. If a man Ireaking an unridy horse, ride him amongst a crowd and he kill a man, this is nniixler, if the rider intended to do mischiid' or even frighten the crowd lor spi'rt : it is manslaughter, if he did it heedlessly and incautiously only, not intending to do mischief or excite fear, if a man drivin;:- a cart or carriage, drive over annther and kill him, if he saw or had timely notice of the ])rohable mischiefaud yet drove on, it will he murder, ami the same if lie imrposely drove it j'uriously amongst a crowd. Peath hy iiiiprojicr or lurioii:, driving esjiecially m a much fre(|uented street, will be maiislaiii/hter. Where one dieve in a cart with two horses without reins and at a furious jiace nui over and killed a drunken m;iii, being nuable to turn a way from him, it was held mans'aughtcr. >'oi\ iiearsii^litcd man driving a cart at the rate of eight or nine miles an hour, and sitting at the bottom ofit, killed a foot passenger who Mas walking along the road by Itimplight, he was held guilty of manslaughter. If a man discharge a loaded gun amongst a multitude of j)eople and deatli ensue, it is murder for the law will imjily ma- lice ; if he discharges it for the ]iuri)ose of unlnading it, or the like, in a j)lacc wiiere persons are likely to jiass and so unwittingly kills one, it is man- slaughter, but in a proper place for such an action and where then; is no want of common priidcncv' or liircsight, an accidental dealh from such an act, is mis- adventure only. If a \\-orkman throw stones or rubbish (without giving warn- ing) from the roof of a house, in a jtlace and at a time tliat |)erso!:s ;ire apt to be passing, it is murder ; if at the lime that persons were not likely to l>e jiassing then manslaughter, and so would it be if he gave warning in !i populous town at a tir.ie that! people were likely to pass ; but in a country village where fcAV people pass, a good and sulTicient and timely warning to those underneath would excuse him, or if he gave lu) warningand the pilace was very retired and it could not be reasonaljly ex[)ected that any (iiie would be near tlu'U he would be ex- cused. Death by the shooting at a butt or target is inisadvenlure if proper precautions be taken, but if the target be placcnl near a path or highway the killing will be manslaughter. Jf a stone be thrown or arrow shot into a street with intent to do any injury however slight and a man be killed by it, it is murder (though the hurt was designed to no ))arlicular person,) if no hurt was designed then manslaughter. Jf it were thrown where no porsor was apt "P 24 to pass by, iiiid no Imrin could bo ro:\.s(ui:il)!y foros(?oii,it is misadventure' A lad out ol Titilie took llie Irap-stick out of tlie front of a cart, this caused iui acci- dent and killed the driver, it was lield manslauj^diter ; so was it wlitie an iron- founder being called nii to repair a, cannon which had burst luid was returned to him fiir the purposi-, >;ent it back in so iinperlect a state that it burst again and killed a man, and so Avhere one for sport giv.'e an improper quantity of spiri's to a child ofteiulcr years and thereby killed it, it was roper medical assistai'. e can be had one totally ignorant of tlie science of medicine take upon hiinKeU" to administer a violent and tlan- geroiis reiui.-dy and death enSiie, it is manslaughter. Jf any noxious thing bo privily given by one to another out of sport and cause death it will be nian- slaugliter if it wen' unlikidy to cause d(>ath, and if otherwise it will be murder. For instance to give poison inionding to but sicken and thereby kill a jjcrson, or to administer a large rjuautity ofa powerful and dangerous physic in wanton misi'hief will amount to murder, such acts being of immediate danger to life ; so also wlurcthe intent ol'him who gives the potion or drug is criminal, such as to hocus a watchman or servant with inte^L to commit a theft or burglary, to drug one with intent to steal from him when sleeping, todrugan officer with intent to esca|io or rescue another out of lawful custody at least for treason or felony, or to procure a, miscarriage with or A\ithoiit the consent of the woman and unin- tentionally kill lier or her child if it die of it after birth, in all these cases the homiciile will amount to murder. Killing oflicers and killing by officers of justice, I will treat of undfr another head, as the subject belongs to or rather is connected with those misdemeanors including considerations of the powers of offic*!rs and of oflice, and is to bo found under their respective heads, and will conclude this notice; by some general remarks on the crime ol' murder. This, like other crimes, must be committed by a person of sound memory and discretion : an idiot, or lunatic, or a child who shews no capacity and discernment arc not capable of it. But he who procures one of these to comrnit murder is guilty thereof and may be lianged for it even if not present when the deed was done. So in this and all other cases, it is no excuse that a murder Avas do.ie by a foreigner and would not have been considered such by the law of his land. If a man accidentally kill himself in escaping from murder, as leaping out of a, window or the like, it is as much murder as if there had been an actual killing by the band of the assailant. II" one, under a well grounded apprehension of personal violence, do an act which eau;ies his death, he who threatened him is tmswerable for the con.sequeiices. An unnatural smi exposed his sick father to the air against his will by which he died, it was held muriler. And the !=;aine was held in these cases. A harlot exposed her child in an orchard and a kite struck it and killed it, a mother hid her child in a jiig-stye and it was devoured, pari.sh oiHcers moved a child from parish to parish till it died from waiii (if care and sustenance (this is a case arising out of the eleemosynary laws of Knijiand not existing or now needed in Canada, but the principle in- volved, the guilt of maliciously withliolding sustenance when bound to give it extends beyond the instance and makes it proper to cite as example.) a nnisler eaused liis apprentice to die by harsh treatment and want of care while labouring underdisea.se. Soto incite a dogorbear to worry a person and thereby kill hini. to turn out a beast that is u.sed to do mischief or that is dangerous by nature if piir{)osely done, (though only to cause fear), is murder ; if by ne- gligence, manslaughter should death ensue from it. So to maliciously inocu- late or infect one with a dangerous malady is murder if it cau.se death. Ifa man be feloni()U-:ly wounded and the wound turn to a gangrene or fever for want of proper attention it is akillingsutlicient to sup[)ortan indictment for murder. So to malii'iously and unlawfully hasten the death of a dying man is a kill iiig sufficient to be murder. But if improper applications cause a 25 woiiiiil U) Ix'coinn tiitiil wliirli otluTwiso iiiiLilil nut liii.c jinivnl so this will be 111) nuirilcr iiiid llic (jucstuMi in siicli c;\sr is did \\\v dccra^cd dm ol'llie woiiiul iir tiic trcaliiicnl tlicri'oC. And it would a|i|u'iir tlic .same miirlit bn put iiiidor an iiidictrnciit lor niansliiu<>ht('r. To kill a child iu iis inotiier's woml) is no murder, but ifliio cliild Ix- horiialivr and aficiwards dii- by reason ot'llio [uition or bruises given it in tlio Avondt it is iimrder, and il'it at (irst lives and tlien die of a wound j^iv(>u it wI.mIc in the act ol'bpiny: born it is murder. The elidd liiiviny; breatlieil is not considered a conclusive proof that the entire child has been actually born into Un; workl in a liviiiij slate, neither is the iact oCtlie child beiufrattaidied to the mother by the nudjdical cord only sutticient to shew that it is a reasonable (th^it is human) creature, iu beinii,-. In the •' King's peace," is merely an averment that the deceased was not an alien enemy in actual war. Kil!iiii;au alien eisemy within the realm not in actual war, (for iiistanci! killing a disarmed prisoner alter action is over and without authority, a peaceable perst)n such ;is a merchant coming- info the realm in ignorance tliat war had begun, a mercliant sailor in distress or thi' like) is murder, if it have the ingredient of motive ri(iuisile to complete the crime. Malice is either express or implied. Express malice is when one M'ith a sedate and deliberate mind and formed design, dt)lli kill another, which ibruH^t design is evidenced by external c iimstanc(s as lying in wail, antecedent menaces, former grudges, and concerted schemes to do him some bitdily harm. Implied malict; is the malice the law presumes in every instance in which homicide is intentioiiiilly commilled until its absence is proved. For if one knowingly kill another, it is (iir him to justify or excuse it else it is murder. But malice need not be against a particidar {lerson. Going deliberately amongst a mnltiUide of jieople with a horse used to strike or discharging a gun amongst them, or letting loose a wild beast among lliem, these are acts showing malice against all mankind, and so resolving to kill the next person ho meets, and killing him makes a man guilty of murder. If A. intend to kill ]i. and l)y pure accident kill C. this is murder, manslaughter or excusable homicide, according as the killing of B. would have lieeii in either of these degrees in homicide. ]f two ])ersons agree to commit suicide together, one perishes and the other survives, it is mnnler in the survivor. iS'o provo- cation will excuse murder where there is express malice. A. and B. having fallen out, A. said he would not strike, but would give 13. a pot of ale to strike him, B. struck and A. killed him, it was held murder. And it is a sale rule that it is murder to kill one whom you have provoked to assail you with the intent of killing him, though you do it in self defence. If A. being aksolulely in the unlawful power of B. (as one iallen among pirates or the like,) and at his command kill C. an innocent [utsou towards his slayer and in the Queen's peace, it is murder, lor h should rather suffer death than kill one who iu no way prcn-okes or justifies him iu it. Killing by poison lieiiig more detestable than ether sorts of murder, as it can the least be prevented by either manhood or Ibret bought, is that killing in which the implied malice is the greatest. It is not material whether the poison be laid in a man's way or administered by unconcious agents or how given or taken, so lone: as a a the poison was knowingly designed to be used by a human being. But llial w hich is perhaps in other respects tlu; most henious of all murder is in law not so re- garded. I mean the swearingaw ay of an innocent life by wilful and corrupt per- jury, here the perjury itself is the only crime in law, ani! the fact of death being caused by it is ».ot brought into issue. So tender is the law in dealing Avith witnesses in all cases of felony or treason. An executioner is only justihed in. killing his prisoner in the Avay the laAV has jirescribed for him. If he behead Avhere the sentence is to hang and bidieading is no part of the sentence, or if he hang one Avho is finally adjudged to be beheaded, (as Avhere in treason the C,Jueen remits the hanging but leaves the prisoner lor execution) it is \\ 26 iiim.l r. AhiI so is il luuiilcr fur miy l)ii(. flu' j n'per ollicrr to iiillicl tlit« liiinisliiiifMit. 'j'liis ])iini.slmu3nt of dcntli must be inllictetl strictly uccorcliiic: to l!ic sciiiciioc iim! liy tlioso wlio liiivo it in cliiirpf to tlic vt-ry Iftlor of luw. (Dcsjiilc I ills some imliiliic'ijct; \\;is loft in trrnson uiui sonic other cases to tho liiiinaiiity oftlic exccniiuiKM-, but none ninoiiiitinc; to a change oftlio sentence.) That till! (lecciiscd was attaiiitetl or outlawed is no excuse for killinir him. rarent and child, U'aster and servant, liiishaiid and wife, may justify killing ill ilejeiicc of eaeli other. A man may kill a tress|)asser who eiideuvonrs to loreilily di>p(issess liim ol'his lioiise, or a fidoii wiio so eiideavonrs to dispossess his ol his uoods, l)iit not a trespasser in tlie latter case as that uoiild be mau- slaii^liler, althoiiuh lie miirht jiisliCy beatinji' him. To justify killiiifi,' a pre- simu'd li'hai in the tait or one committini!: a Ibreible anil eiiormons crime us ti'lonionsly breaking into a house, or biirniiig, i>r ravishing a woman, or murder- ing a person, the criminal iutiMit of the deceased must liavo been i'^ :le manifest ; but in cases within Ibis rule, the slayer is not bouml to retreat as in other cases of self delence, but may even ]iursue the assailant till he iind himsell'or his property out of danger, (to which rule adjust the right of arresting [jcrsons in certain cases, and of killing thi' resisting ut Hying in cer- tain cases, as you may easily do.) and he who defends his house or his jiersoii within his house; is never hound to retreat, liir his house is his casthj anil lie may keep the advantage of it. Jf while two an; ch-liberately and unlawfidly fighting, a third go between them and bo killed, thoujih accidentally it is murder, if a man vhoot jtt another's poultry and aecidiiitly kill a man the design being unlawful it is inanslanghter, unless he designed to steal the poultry, ill wlucli case it is murder lor the slayer disigncd to commit a ti'louy. W'hero several are concerned, if murder in one it is usually murder HI all. but not always so. For there are cases in which the imlawliil killing is shared by several, but all are not parties to the iiremcditated malice. Thus if an oliicer of justice be killed in attempting an arrest under circumstances which would extenuate the killing of a private ]ierson, but not of a constable, those only who knew his oflice will be guilty of murder, the others of nian- slauglifer only, and so of a jirivate jicrson endeavouring to supjircss an alfray, those who knew his intention are guilty of murder the rest of manslaughter. !?o in a sudden light, or an unlawful and dangerous sport, the killing may be manslaughter in all the others, but murder in one who acted of exjiress malice unknown to his associates. Indictments for murder are now very simple owing \n a late statute.* It is lioAvever to be observed that the name of the deceased should be correctly given, and if unknown it should be so stated, no other (jlfence should be joined in the same indictment, and any indict- ment 'iiarriinii the death as the result of two difierent injuries, infhcted by each of two dtjfendants on ilifferent days is bad. The death should be proved beyond a doubt and a missing man is never to be accounted murdered till his body IS (ound, if none saw him slain or received his body, or saw it destroyed or removed beyond recovery as at sea. tjentence on the convict to be iianged by the neck till dead. See Consolidated titiitules. Cap. 91, s. 2 A: 3— Cap. 9!), ss. 51,* 95. Idle and disorderly persons. See Police Cnlinancc, 2 Vic, Cap. 2. Lmpounding cattle. See 20 Vic, Cap. 40. Imprisonment. See False Imprisonment. Indecency. See Nuisance. In; AXTiciDE. See Murder. 27 INFANTS. Infants in law iilso iTiUod minors, nru jx-r.sdiis lunlcr 21 yL'ars dC aurt'. It is a geiM'ral rule tliat in Hints imdrr tlii' aire of discroticjn nro rot ixmisliable by nny criminal prosccntion whatever, bnt tlic age of discretion varies aecord- in<>- to the iiatnre of the crime. Witiiin the ix'^v. of seven, no one can be guilty ofieiony. For all persons within it arc (hi/i iiicapux. or ineai>able of crinu^ by presninjition of law and no evidence will l)e received to the contrary. Fndor I'jnrteen u boy is presumed by law too imjiotent to ravish, and no evidence will be heard to the contrary, but if he aid and assist another in rape, and show a mischievous discretion and knowledge he av ill be as responsible (in law) as a grown person. So with all other felonies. Iiilimts between 7 and 1 !• years old are presumed ^/rV^' I'/'fv^/T, , bat this may bo rebiitteil by strong and jireg- iiant evidenc(!. (tlie doubt going for the prisoner), iiui/itid siipplvL (cldlviii, and a mischievous discretion may bi: inferred from strong circumstances establishing its existenci! beyond doubt or contradiction. Concealing the body and blood in murder, is among tin; cu'ciunstances which jn-ove a guilty know- ledge. In some inisdeineanors for instance, a mere non feasance of some duty of a public and general nature, or omission to do sometliing commiinded by Statute, a minor though over 1-f-, may be excused by his age, (br A0 Vic, Cap. 40. Iron. See Larceny. Jurors. Sec Embracery. Justices. See Mis])rision. Juvenile Offenders. Sec Larceny. Keeper of a Gaoi. or House of Correction. Sec Statutes, G "Will. 1, Caji. 15 ; 4 Vic. Cap. 20. Killing OF Fish OK t J ami:, tVc. See Consolidated Statutes, Cap. 62; 22 Vic. Cap. 103 ; 23 Vjc, Cap. tit. Landing uncustomed goods, and all other offences against the Excise. See Consolidated Statutes, Cap. 17, ss. .');') to 72, and Cap. 92, s. \9 et sr>j. LARCENY, (simple.) Larceny at common law is the felonious taking and carrying away of the mere personal chattels of another, with intent wholly to deprive him of them, and to convert them to the taker's own use or benefit against the owner's consent, or without his knowdedge. Such a taking is said to be cion animo furnndi or lucri causA, and this element of the animus furandi is most par- ticularly to be observed, in larceny and all its kindred otFences of which we shall treat by and bye. For there is no larceny without a trespass, (in the legal acceptation of the word,) yet there is many a trespass which is not a larceny, and it is to be observed though the statute law comes to the aid of the common law, and adds to it many cases of larceny, yet it changes ita principles very little, and rarely in respect of this offence, rather multiplying the objects of larceny than changing its conditions, and rather defining some 'f 28 t-ivil reliitioiis Llian altcriny,- it (lisi>liiein<; thein. Tliiis in t\w nppliinxtion ol' lliP law to iiiiy illegal ac(]iii.sitit)ii of floods, t ho p-iujral princijilo above laid down has to 1)0 ro^fardod. It is lo bo ninarkcd that .sonio thefts rroatcd by statiito arc inisdciiicaiiors only, but in j^imk-imI the stalntc iuw ratjicr makes the pMnisiuuent of the crime mure severe tlian that of tlie eommon law felony, by limiting a discretion likely to bo exercised in liivonr of mercy or inflicting some additional ]r,un not inflicted by common law. Simple larceny we have alrciidy described, there an- eomplic-ated and nu)re heinous forms of the offence, such as larceny from the jjcrson and i;irceiiy from a dwelling house, from a church, chapel or post otKce. or a vessel. Larceny by a servant is also judged more heinous on account of the especial fidelity he owes liis master, and the confidence reposed m him. Of the ingredients of larceny, the first in order is the thing of which larceny may be committed. Larceny may be committed of things living, dead and inanimate. 'rher(i is no larceny of animals while in a state of nature, nor at common law of beasts or other creatures fcnc nafunv, but if animals be dead, or inclosed, or tame or domes- ticated they may btM^ome sulijects of larceny, lieasts of burden or the ordinary birds and animals generally used for food, as sheep or swine if they have an owner, are subjects of larceny at common law as well as statute law, whether they 1)0 inclosed or at largo. Deer are subjects of larceny if inclosed in a ■jnv'l: or fisli, in a pond, and so :iro dead game, skins, feathers, stuffed specimens, probably skeletons in a museum and the like, be they of what ahimal they might or any carcass or skin if of any value is subject of larceny. Some creatures how- ever which ihe common law would not ))rotect,(at least criminally,) by reason of their sup[)ose(l uselessness or unfitness for domestication or food, have been pro- tected by statutes, (to which and all others concerning larceny,) refer.' If the larceny consists in taking live animals, it is enough to describe them by their name, if dead when stolen they must be so set forth, error in this will be fatal. No larceny canbe committed of a corpsi;, but stealing or disturbing a dead body is a misdemeanor and if tlie grave clothes or other effects be stolen from (or with the body if there be an finimus furandi,) it is larceny. There can be no larceny at common law of real ])roperty or immoveabl;) goods, or any thing which savors of the realty, that is that immediately attaches or a^jpertains to the estate. Thus title deeds arc not subjects of larceny ;it common law, but are protected by statute. And there could be no larceny at common law of any thing growing in or attached to the ground, or fixed to any tenement, and to cut iij), break off, pull out or tear away, cut or otherwise sever such things, as trees or fruit growing, or lead on the voofs of houses, or covered work forming parts of houses or outhouses were not larcenies, (the word house or outhouse is here used as denoting a fixture and all attached to them in a jier- manent state, as by a nail or by any insertion in the wall are fixtures,) but if any such be severed at one time and taken at another, such taking will be larceny as the sovcrence converts the article from a portion of the real estate to a mere chattel, thus changing its nitture without changing its ownership. So a tree when felled, a door wlien unhinged, fi-uit when gathered, beams or roofs when thrown down arc all sid)jects of larceny at common law, and the various arts by which thieves may steal, as cntting lead from a roof, &c,, and shelter themselves under the plea that the thing savoured of the realty are now repressed by statutes which provide for such cases. As a general rule there is no larceny of the elements, which arc either the common property of mankind or sjivor of the rcal+y, lor instance taking water out of a man's well and the like are bare trespasses, yet doubtless under some circumstances the elements may so change their character as to be made subjects of larceny, for examj)le ether in a bottle might (f imagine) be subject of larceny. It seems also theft may be committed of gas and probably medicinal waters when col- lected in artificial reservoirs for sale will be subjects of larceny. It is worthy of 21) notice that the conmiuii hiw decisiims in rdbrciu-o in stcalinf? uf wild miimiils c!omestic;ito(l, seoni SDiiU'whiit ct)ii(lictiiii;:, ihustaiiK il liixcs, inoniicy.s, iVc, lire said not to ])e siiltjocts of hircony iitcouinion hiw, hcciiiisc llicy nri' not propor lor the (bod of man, yet swans marked or pinioned orconlinod in a pond or river, are said to Ite olijpcts of larceny ut eonnnon law, iiiid so is n hawk reclaimed, but not a cat,a dossession. If a right of property pass it is not larceny, [)ut obtaining goods under (iilse ])retences of Avhich we will treat in its proper^ place. 'J'he Ibllowing cases will shew a constructive taking. A man asks another to \vX him ride his horse just to shew his paces and rich's off with it, one asks for goods to be giv(?n for cash down, but immediately runs away with the goods without ])aying flir them, or olh-rs change to get hold of money and immediately runs off with it without giving the change, or ofil^rs to hold or carry an article intending to get it and runs off Avith it, all these are larcenies, and it is not difficult in the foregoing cases to infer the intention to steal existed at the time of the taking. iSo wliere the juisoner offered a half crown asking for change, and the prosecutor or his clerk gave him 2 shillings and 6 pence, and got liold of the rim of the half crown and the j>risoner ran oil' with the half crown and the 2 shillings aiidfi ])ence. being indicted for stealing the 2 shillings and sixpence, it Avas held larceny. So suing out a writ fraudulently and with intent to get possession of another's personal projjcrty is larceny. Thus seizing goods nnder a lawful Avrit if done without any just cause, and with the felonious intent of unlawfully appropriating them, and only as a color for the same will be a felony ; for instance to take a horse under a writ of revendica- tion, (sued out for that purpose.) and having possession of him, to ride ofi with him and sell him, would be as much larceny as to steal hii . out of a stable, and such cases have been so ruled in Kngluud. So a man may commit, larceny by taking his own goods, if it be done so as to charge another with them, and with that fraudulent intent. As stealing goods fioni a carrier, retaking by stealth cloth given to a tailor to make uj), or things pawned from tlie pawnbroker, Or the like, in these cases the offence is the same, though the thief is the owner of the thing stolen. Where goods are stolen from a bailee, to wit ; one having the lawful ])ossession of them, they may be laid either in the owner or bailee. Where A. steals from B. goods which E. stole from C. it seems the prosecution of A. should be for a crime against C, the real owner. A wife cannot be guilty of larceny of the goods of her husband, for they are one person in law, (this is, at least, as to criminal hiw,) except in those cases in which he himself would be guilty of larceny. But if one join with the wife in taking the goods knowing they are the husbamls, and that it is against his consent, it is larceny in the person so acting. As to the case of an avow- •M) tert'i' (ir iuliiltcrcr rt'Cfiviiii;' fiinids fnjiu tlio wiK-, aiul taking' tliciii into his own sepiirati! possession cvt-ii llioiigli siioli poods hi' licr wcarinir a|i|)ar('l, it is l)y some aiiMiorifics larceny, oflicr and older antlioritics seem lo say as there is no thcit in the wife, neither ean tliere |)e thel'l. Ml tli(! avowterer's reeeivins; from inT. Wlier* there is a joint possession ot' th(( noods in the wile and tlie avowterer, tliere is no larceny in either. JSnt the aiilhoritii's thoufrh divided as to the resiionsiltility of one who cohahits with the wile, or an adiilleri?r, called in the older worUs the avowterer, yet concur tluit il' the wile j^ive the hnshand's goiKls to anolherstnuiiicr (not her avowterer,) it is no larceny in such stranger to take or receive them. Tenants in coininon or joint tennnts of the same chattel cannot he frailly ol' larceny towards oiu^ another, partnership or j»art owiiei'ship of any Ihinfr, as an entire stock ol jj,oods debars the coniinis- sion of hirceny by the one auainst the other, hut tlie tiikinfj; from a huilee if it have the elii'ct id' char^inu the bailee will be larci'ny. tlioiii;h the thief be a tenant in eoininon or occiijiy any ot the fore, liir it seems that the law will rather ieign an ownerslrn wlicire in strictness there is none then sutler a thief to escape. Thus where a master robbed his servant of his own poods with intent to cliarp(! the hundred (according to the law of that day which made the place or district called the hnndre Ukm iiler with si siriiiir, it wiis lield nut Mitlicieiif, iiii- in llii.s case then^ WHS no M'vi'raiicc. Wliow tlie pri.suiicr iiicnfly turned ii hiile oC <>oods nn enil wlu-re It lay li>r the |iMr|)oso of ciittiny: it o|ieu iind takiiiii- tlio ;;iitid.s imt. iind was dct"('ted lieliui' lie snceeeded jn mi d.jin^', it was held nut snfli- fient. If a man he leailuin anuther's horse out ol" a close and he tai;en in the iiict, it'll !,nii'ststi'alnifi; ^ood.s I'rom an inn, iiave removed them Ironi his cliundK-r down stan-s, iCa sqy\i\{\\, (Ui.iiiKi furd/idi, lake his muster's iiay Iroiii his stahh' wnd |inl ii in his niastcr's waunon, or a tliief with intent to steal plate take il out ot II ciii'.st, iiiul lay it on the lloor. and is surprised helore he can take it oil. or iCinteiidiiiL' to steal a cask ol wiiic, he removes it I'rom the head t(( tho tail of tile wajU'jroii in w hudi it is placed, all these are laireiiies, the asjiorlalion lirinir sntlicieiit. I'lic time is ol' no conseipieiice in larceny .generally, Imt miller partien'ar statutes it must he shewn that the prMSeeiitionwas eomiiu'iicod within llio time specilietl in the staliite. Larcenv oii^ht to he laid where it is committed, hilt if llit3 f>;oods ho carried hy the thief into aiiotln r I'uiinty. the law supposes ii taking in that euiuily, and In- may Ik; iialiclcd i'li cither, or it would appear in any intermediate county throiif.di which he may have carried the ouuds, and the same would he the case of districts 111 Lower Canada, and if larceny In; committed within TjOO yards ol" the lionndary lino lu'tween two comities, the indictmonl M'ill lit; in either, and the siime of two districts, and if there be a lar.'eiiy of •j-oods on u journey or a voyaict!, the vcncr may !,e laid in any |»lace liavini; jurisdiction over flio ofleiice, throii<.di which, or to wdiadi, or hy the hoimdary of which, in the course of the voynj;e or journey the veliicle or vessel may have passed.' A person lawfully m iiussessioii of the ^uods of another is called the bailee, be Avbo owns them and puts thorn into the possession of the bailee is called the bailor, be who has not a complete possi'ssion but merely a cliarii'e or bare cns- toily is not bailee. Jt is a good iicneral rule that he who can maintain an action of trespass for the removal of goods not his own is bailee of them, ami he who cannot is none, A bailee is not guilty of larceny at I'ommon law by the conver- sion of bis bailment, unless be break the bulk, or obtain the [)ossessioii laiiduleiitly ill the first instance, or lake; or remove the goods after the bailment has deter- mined (that is, is ended) for such retaking or removing is an original taking or asportation in I'ontemplalion of law, and must l)e jiistilied as though be never had been bailee. 'J'lie n.-ason of Ibis is that the bailee has a special projierty in the goods, and the law has not hitherto come to the aid of tlie bailor at tlic expense of the public by indictment Jbr a mere lireach of trust but leaves liim to his suit, as In; is supposed not to leave his gootls without knowing in whose bands they are and a certain amount of caution and jndunieut is exacted from every man, for the law neither supplies prudence nor encourages the subject to dispensi- witli it. 'fhis priiici|)le however i apiilies either to bailees generally or at least as to carriers only, will j)robably be modiiied by Act of r'arliament before long and much ol" the old or rather of the present learning as to bail- ments will then be obsolete (si'e C(jnsolidated Statiites, cap. !)-2, s. .')5.) But iiowever tlu! princijdes which now regulate the relations between bailor and bailee are so wide and general tliat they include almost all the distinctions between theft or larceny, and breaidi of trust or other mere vitilation of civil obligations such as negligence in the discharge of a trust and liability for damage arising therefrom, f I'lie immediate divergence by a carrier from the route he was to have followed has been held a sufficient proof of the existence • 4&5 V. c. 24, ss. 40,41,68. I'J'hciibove v.'iiK wiittpu previous to tlie p-issino; of tlie Act. As tticre niiiv t:t' cases in whicli a knowlciljro ol'tlie common 1-nv principle^ ot liiiilmeat.'j A\ill vot le useful 1 do iictomit it. :)'2 iil'tlic aiiiiiius I'mnnili iil tin' time "ItlH Iiailmtiit lo iiiJikc llii- currier L'liilfy ol larceny. Severinir ur (livuliiiy or Iirciilviii;^ llie bulk ufHu' ifiuKls eiilriisled t capable ol" lurceny by a conversion to their own use liir they are not, baih'es but have a bare charijc only. The brcakiiiif of the bulk of the bailment will make the bailee guilty of larceny if he cannot jiislify or excuse il. Thus the drawiiiir of the spigot of a wine cask and j^Mtheriiijr a portion ot the wine into a vessel, the breaking, the seal of a letter, nntyiiig the strings, or teinii^^r the corner ot a jiarcel nnd taking ont the contents and the like appear to be asportations or according to some proofs of un original fraiidiilent intent or (vnnms fiintudi and will consti- tute larceny in the baih'c. No man i-aii be held guilty of larceny Ibr an act done under a/'/o//^> //V/rclaim of right however erroneous, Ibr if the (iiiimus fnrandi lie wanting, tluf gro^^sest mistake will not constitute the guilt of larceny. A man can jiistil'y taking his own goods where he dt)es it not to charge a third {)arty, and the same rule and the same exception upjilies to husband and witip taking each other's goods, and if a man in taki'ig his own goods carry oil his neighbor's by the same ad, it is not larceny. As where thi^ goods of dilli'rent persons are in one parcel or otherwise fastened together or welded so that thi-ic is but one taking. Thus if a man take his own grain and his neighbour's both l)eing mingled togellier it is no larceny nor even a bare trespass. Or if a man in retaking his own cloth take also his neighbors lace secured on to it, this is un- der the same rule. But if the original commingling, or interweaving or wel- ding (as in tlu' ease of metals) wen? tli(> man's own act or done at his desire with intent to dishonestly take all under pretext oi" retaking his own without doubt this woukl change the case and be such an intent as to make the taking larceny. The cases given and the jirinciplc applied to tlu'm intend an absence of any dishonest intent in the commingling of the goods on the jiart of the owner. The /»cr« ra?/.w. in larceny is not always the pecuniary value of the thing stolen. Where a workman took an axle and threw it into a furnace to diminish the amount of his work though his direct gain Avas about a penny and his master's loss 7 shillings it was held a sufficient Iticri causa, and so where an accomplice took away a horse and killed it to destroy evidence against his confederate who had stolen it, it was held larceny. It has been even deemed larceny where in a taking by a servant of his master's property the whole bene- fit to the servant was a diminution of his labour. It woiihl st'Cin to be the better opinion that where a man is starving and steals Ibod to keep himself from perishing it is not larceny ; but this goes only to excuse acts done in obe- dience to the cravings of nature in extremity of hunger, and for the more im- mediate satisfaction of the necessities of the suflercr, and probably considers also the inlluence produced by the sight of food, on a fiimishing person, but will not reach to theft to sujiply the means of jirocuring food, and it seems by some works it will not exi^use the delisndaiit if his wants arise from his own fault. One very eminent authority controverts this and says taking food when starving makes a man guilty of theft but seems more indulgent on homicide for the :]i\ pn'strvatioii oT ihf Inimiciilo'.s own lili'. An ;i|i|i!jmit inroiiNisttMipy wliicli ni!(k<'s luf tliiiik llii' hi'llcr ii|iiiiinti is ns iilmvi' :iiv( ii. I luivf niri')ii!\ sniti tlcil liv(! ;iiiimiiiIm iiiiiy In- divsc rilii'd \ty tlicii imnu' nii'iuiiiifj, lliiit ul tlinr .s|k'. c'irs or (lf.si!ri|>tii»ii oluiiiniul. It is to \ni (il».s«'rvf(l lliut tin* ilfsirriplion i,s iiM|nir- tutil uinri' cNiH cnilly iiiMlcr iiny Siiitiitc. IT |iir iiistiincc ■^cvcnil aniiniils of llio siiiuc p^iMiiis 1)1' (locrilicil III ;i nIiiIiiIc, viiri:iin'i' hctwccn llic iianm ^ivtii in llu; indiclmoiil and the \)tovi will lie liitiil. At i-oniiuon law tlu' "(('ncrii! iianu! of tlic cr.'atiirt! is usii;i!!y mid pcrliiii'S ;ilw;iys siillicicnt. 'I'lius iC a s'alido sj)i'iiks (if slu'tp and lambs, tli<' aiiiiiial nuisl Iti- provi'il as dcscilltcd. It will li(' liital to ('.III it a slircp and prove it a \,\u\U or vice irr.stl, — at oouiiiioii law till! ^('iiorio uamn sliccp will include laiiilis, and so if an act say hiirse, mare and i^cldinir, i| t|io indictiiiiiit allc^'c a Imrse lie niiist lie a male and ontirc, on a ccinnion law iiidictniciil these particulars would not he nialerial. 8eu Consolidated Statutes, Cup. !)!», ss. I!),77,7S. It is provided hy statute that un indicfnieiit may aver larceny in one count and recciviiiL'" stolen <;(iods in the other, and the prisniier he convicted ol'either. So a No larceny and em hez/ lenient may ho joined in an indictmeul and a conviction had I'or either. Some now statutes provide lor the siiiiiniary trial of persons ffiiilty ol' larceny in certain eases. Jiivrinle olli'uders may thus he disposed of. N'ide Cons larceny or of assault. 'J'he taking in this oHenee must he an actual and not a constructive taking and the goods must ])e actually severed Irom the person. Wliere the tliief rose a pockt!t book ahoiit an inch above the top of the prosecutor's pocket and being alarmed let the hook fall back into the pocket the asportation was not deemed sulficient to support a conviction under the indictment though it would liave been a sufficient asportation to constitute simple larceny. Stealing fuo.m a Vessel in a navigable river or canal. This ofl'ence re- quires an actual and not a merely constructive taking. The policy of the law in it is the protection of commerce and it seems the taking must be of the cargo or at least a passenger's baggage. The venue may he laid in any district through which the river or canal passes. If the vessel be aground it seems the offence will not be complete. Consolidated Statutes Cap. 99, s. 12. Stealing from a dock requires as in the last case an actual taking but the asportation must be from the dock, also it is not complete unless proof be given that the dock is adjacent to a navigable river. The goods stolen must 3 34 \)v Nucli as iiic (tNimlly drpnHitdd in such )iliici'MUir Mliiptnriit, snt* like. 'I'lii' NlMtiilt' (IfsrrilM'N pMiils and iiicrcliaii(li.s(,', mntiry ami valiiiiblf Mccit- riticN ii|)|icar tint t<> Im- witiiiii it. railiiiu: iirutilot'llic itKiictiuciit, tlir dclt'iidant may lie coiivictf'd (or siiii|il<' larci-iiy. (.'ttii.sulidaifd .'^tiiliitcs Cap. KvJ, .>*. Ivl. Steai.ino kkom a wiiKf k is II o(>iii|ts Cap. {>"2, m. '2J'. .Sii;ai,im; r^ a ii\v(;i.i.i.N(i JtorsK somi: pkuson riiKUKi.v dkinc; pit in ieak is aiiutlwr (•uiiipoiiiiil and ajffi;nivalcd larcfiiy, i;///r Coiisojidatcil ^italiilcs, cap. 92, s. 11. 'I'lii' duclliii;f lioiiNc must Iw piuvcd us laid. It must lu' a dwelling housf,' III ciiiiiciiiplatioii tif tli(! statute law to wit, a duniicilt! or building con- nected therewith or ooniiniinicatiim; therewith l»y ii covered anil enclosed |>assat.'e. I( the thejl was coiiiiiiittcd out ol'the presence of the party it seems there should he proof ol' actual terror; if in the presence ol'the party prove the (cur us in r ihhery ; that is it may he interred from circunistiinces. Steai.inc in a dwellinii lie to the value of live pound.'! (or more) m an aupravated felony. V/il( ( 'onsolidiited Statutes, cap. \)'2, s. lU. I'rovr the dwelliiiir as in the last casi.-. If A steal in his own lioiistnVoni ancjlher it is not within the statute. So tlielt (roiu the person is not within tli«' statute, 'riie goods stolen must he under the protection of the lu)iise and not of the person. Whether they are in the protection of the dwelling house or in the can- of the owner IS II, (juestioii for the court and not (iir the jury. 'I'lio goods to he within the statute should hcdepot,iled m the house (or sale keeping. Jhit goods left utu Viousp hy mistake or clothes, A:c.,le(t hya, person going to hod at the bed hide or on Min table arc; within the statute ; and where a man went to bed with a ))rosti- tiite who stt)le his watch while he slept, the watch being where \w. put it in his hut on the table it was lield larceny I'rom tiie dwelling and not (rom the person. If a man part with his money under such circumstances of trick ns will constitute u simjilc larceny, yet it will not be a larceny within the Act. HnKAKINO AND ENTERING A UUII.niNG WITHIN THE CURTILAGE A NU .StEAL- iNc; tiieiu;in is alsoascrionscom|ioiind larceny, (Sec Consolidated Statutes, cap. }t2, s. 13.) The larceny must be proved in the same manner as on an iiidietment (or house breaking ; the breaking and entering as in burglary only it matters not whether it be by night or day. The building described by the statute is any building within the curtilage of u dwelling house and occupied therewith not being juirt of the dwelling house or comjiumicating therewith by any covered and inclosed passage leading from one to the other ((or in that case it woiilil be part of the dwelling by Act of Parliani' it and to bo dealt with according to the preceding ^lireclions.) This descrip.u ii of buildings within the curtilage limits the operation of the principle of the common law which deemed them part of the dwelling as .see n?itc. A bn.iding separated (i-om the dwelling hy a public thoronghliire is not within this Act. So neither is a wall, gate, fence or part of the outward fence of the curtilage and ojuMiing into no building but into the yard only part of the dwelling house, nor is the gate of an area which ojiens into the area only, if there be a door or (hstening to prevent persons from jiassing from the area into the house, although that door or fa.stening may not he .shut or secured at the time. It seems a count should belaid iiir burglary or house- breaking if there be a doubt as to whether there was or was not an entering of part of the dwelling, and that the indictment should negative the communica- tion with the dwelling and the prosecutor should prove it as laid. But the necessity of this i.s doubtful. The curtilage is a common fence surrounding the dwelling and appertaining to it. If proof of the statutable felony fail still there may be conviction for larceny in this and all the ordinary cases. There are other comjwund larcenies than tliose I have described but they present nothing worthy of notice in so brief a work as this. 9b K.MnK//.l.EMKNT i.Mi hroiti'li ol iriist niiul*' critiiiiiiil iim ti'lony liy viirmiiv >(ii- tiitos. A lin'iicli 1)1 trust wlini nut iirovidrtl |i>r liy Ad ol I'lirlmiiiciil iv tmii'ly aoivil in|iiry l>>r uhirh mi acliuii will lie. Ami iii Noiiir r;\scs hmidi ii| triiNl huN Ih'imi inikilc Itip.'t'iiy iiinilH'rs iMiilu'/./lciiiriit. In this criiiio ul •■itil)i'//li'iiicnt it IN lirsl priipci' luslu'W llml ii in vvitliiii a Statute iimr)' tliiiii ii. imrr iiniich dl trust, tii-Nl tliut III!' ai'l IS Hut liirccuy. Aiul to |iri>vi-iil. tlu- tailiirc ol tii included m dilllrent counts ol the sanii inilii-tnii'iil ami 'he cuiiviclion laiun on any one uf ijieni. Soo Constdidaled MututiH, Cap. W, ss. II lu "U- Cup. !)!», 8. GO. OnTAININt; MONEY INOMt fALSf. I'UETENCF.S is a niiNdfllK'lUlor at sfilllte hiw, in which ronspiiarics or fiilse I'lkens arc not necesMiiy, nor is liu' pru- dence or iiii|iiiideiice ol the pally delVaiided olany ;,'ieiit conseijnence.aiid v\ Inch inrlndes a niiniher ol' ca-e.s, which at common hnv would not, hi^ indictahle, and Ciirthcr wliero the Ihmd iii:iy he cdiiloiinded with larceny, the statntc ennhies tlie defemlaiil lu he coiivii'ted as indicteil, and he is not to he a lit r- wurds tried fiir the laiceiiy. whether acijiiitled or convicted. Tlie liijse pr»tencn or prc'tetices iiiiisl he set liirtli 111 the imliclnicni with a rcnsonahh- certuinty.and the iiidieliiieiit niiisl iie;falive the |tret(;iie(! or pri'teiiccs hy special averimiit. The fulsf pretence need not he in words, the conduct and acts olthe parly will suffice. 'The pretence must he ol'sonie ixistini,' liicl, and not a mere promise o| future conduct, and it iiiiisl he ninde (iir the purjiose of indiicinji the pioxcntor to part with his property. H made liir aiiuther purpose it will not •^iitlice tO' BUHtiiin tlic indictment, and the indictment must stale the money or other thin'^ was till' property td the jierson intendeil to he del'randed, so that the deli-ndant may plead his eonviclioii or ac(;nitlal in hnr to any siihseijiieiit imlictiiient tor larceny, and this want ot'siich averment is not cured hy \erdict, hut is luid in enor. The false jiretenee must he proved as laid, varianoc is liita!. hut npo Con. Stat. Cap. !•{), s. .Sf). Il'a general verdict ufjiiiilty he had oiiaii indictment containing two false jneli^nces, one ol which is insullicient in i;i\v the convic- tion will he had. 11" the liilse pretence ht in wrilini!;. it may he pruved liy secondary evidence, .should the paper he lost belore the trial. It the niiiney or other thiiii; was not ohtaiiied hy tlie ])i-eleiice, the prisoner must he acipiitted. It must be jiroved that I he pretence (or preten(.'(\s) was (or were) fiilsc, hut if one pretence; and it snflicieni to amount to the crime he proved liilse, it will suffice to convict tin' prisoner. IT the delt'iidaiit lndie\rd tlie jirelenee liimseU' to bo true he onirhl to he acquitted, for he ouiriii iu know it to he false in order to constitute him i^nilty (d' tlie crime. IJis liiiilty knowleiliie will be generally inferred from his conduct, and is mutter for presinnption re(|iiirin<; no special proof. To jtresent a check on u hanker where the dclendant had no money is u fiilse pretence, (though not a cheat at common law,) even thoiiirli no pretence in words uccomi)anied the act. So iretting jroods in ll.-e cap and gown of a college to which the defendant did not belong, wns deemed a sufficient fiilse pretence (without express words.) But in the majority of ca.ses under the statute, words constitute the fixlse pretence. Where the fiilse pre- tence lias involved a li)rgery, it has been questioned whether an indietment under the modern statute could be maintained, and even under the aiicitnit one it might be questionable whether the writing if forgery in law, should not have been treated as such rather than as a pretence, though writings were specially referred to in that statute, which mentioned lidse tokens and letters in other men's names. The distinction between a constructive larceny and obtaining by false pretences, which was frequently very subtile was formerly imi)ortant. The difference between the two appears to he that in a constructive taking the custody of the article alone is acquired, in obtaining under false pretences the property in the thing obtained passes. Where the defendant 3* T 30 st'iii. 1(1 a liattor in the unnir. of one ol' liis customers fijr a hat, ami it was dcliv<'ii'(l on the credit of the customer, this was held no larceny, but would l)c a clear false )irele;ice, fof on tlie stren ehcat, and as such a misdemeano'. I^orgrry at common law itself is a misdemeanor. Forgery however is iniidc ii crime by several statutes in dillerent degrees of guilt, 'i'o treat of the statutes touching forgery is out of the scope of tiiis work. The way to obtain inlbriuution U|)on it is to look at the Trovincial .Statutes, and to ascertain what laws or amendments of laws have been made upon the subje(!t by Canadii, then ex- amine wliat statutes (lni{)erial) were in force in Canada at the time of the Quebec Act, and then observe how lar they h:\ve been repealed or altered by the Provincial ISlatutes. it is to be observed tiuit wherever the Ibrgery is in signing a private inairs name or altering, ifcc, a writing to the jjrejudiee of a man it must be done fraiululeutly,and the intent i; material in forgery, tliough as in other crimes it is to be presumed from the act of the defendant, and in all cases of altering or publishing forged instruments tjie guilty knowledge o[' the prisoner is a (picition (br the jury. t>ee Consolidated Statutes, Cap. f)k ROGUES AND VAGABO.NDS. I have endeavored in the ibregoing jiaijos to give a brief eonip;'iuliiim of the oliences to which proi»(;rty is liable by the Ibrce or direct Ihiiid of the dishonest ; to the caiegory of these oliences n..iy be added, the crimes of those persons who add petty thefts (as stealing wood out of hedges, hrewood, Ac.,) and frauds to the crime of vagrancy, and who livuig an idle lile coinmit trespasses and small larcenies against ])roi)crty, or take advantage ot the cre- dulous and unwary. It is a. good rule that lalse personation is liilse jiretenc-e, if it is assumed /ucri ciiusa, (to borioxs' a ])hrase iroiii the description of Itireeny.) but begging impostors are liable to be dis|nsed of in a dilfi^rent way. AVo have already seen tliat in some eases fluy may bedisjiosedofas chcatsatcomnioii law, for instance, the impostors called Sham Aliraham men in old times, and as a rule the impostor is liable to be treated as either a cheat or Angrant or disorderly person. Pretenders to magic or \/itch f-raft and dishonest and lazy imitators of bodily intirmities may geiieraliy thus be disposed of. Vagrancy itself is under the laws of England iuid indeed of most countries, regarded as an oflence against society, and some jurists have laid down as a general rule that all vagrants should be locked up in prison. Snsiacion attaches to vagrants and idle persons without known honest em])loyment. Hence such persons were formerly in- dicted as rogues and vagabonds, and persons previously convicted as incorri- gible rogues, but these matters are disposed of here altogether by the summary jiowers of justices, and it is useless lor the student of law in Canada to consult English authorities on vagrancy, Arc. The Police Ordinance and I'rovincial Statutes arc the true guides on these subjects, and it is not likely that indict- ments for the descri|)lion of cheats and impositions for which they were for- merly used v.-ill ever be used h(!re, as it is likely that a case not reached by the Police Ordinance would be dealt with in some special instance as <'alse pretence under the statute, rather than as a cheat at common law, or as consti- tuting some systoniatic and distinct art of fraud or theft. Indeed the Pro- vincial Statutes contain more summary and adecjuate provisions against petty depredators than the old indictments for rogues, &c., and this is now obsolete and merely referred lo in this )>lace to shew the policy of the law, and the antiquity of that protection Avhich society employs against " loose, idle and disorderly persons and vagabonds of every description." .18 Rkcf,ivin(; sToi.KN coons knowing them to luivc. Itcen stolon is fl-lony oc misiloiiieiiitor. II the liinaer tlie receivor may 1)0 prosecuted either ns iiccci- sory iillcr llie lliet or fur a substantive felony. The latter is tlie more nsnal eonrse. TiiiiMand receiver may bo indieteil together so the same man may l>e indicted for stealmg in one count and receiving in another and "onvieted on either. TIk* thief is a good witne.'is against the receiver. The n-fCiVer niuy shew Dial no thell was committed. Therelbr(> it is eonii)etcnt for him to disprt)ve the guilt of the priiici|)al. If two be indicted jointly for receiving a i'>iiil, art of receiving must he proved in order to convict both. Jf the receiv'er assisted in the theft with some other person he may still be convicted for re- ceiving even though he be not indicted for the theft. Where a larceny is laid in one count ami receiving as a substantive felony in another, the receiver may be convicted through the principal is ai^qnitted. It is indictable as misdemeanor to receive knowingly that which has been unlawfully obtained or converted. The evidence of a receiving is as follows. First prove the larceny (the same rule appli( s to misdemeanor) and then the receiving. Having the goods in pos- session is presumptive evidence on an indictment for receiving, then ])ruve the defendant k:iew tliey Avere stolen. This may be done either directly or circiiinstantially. liuying very much under the value and denying possession arc strung circiinistances in ]>roof of guilty knowledge. And to shew a g'lilty knowledge other instances of receiving may be [troved even though they ura i'i'.' subject of otiier indictments and diflijrent and anterior in their date to the re- ceiving in ()iiestioii. Where A stole notes of JGIOO each and changed them into notes of .£20 each and B received them it was held that B could not be coti- victed hccause he did not receive the very notes that were stolen. In order to indict a receiver as accessory, the principal felon being convicted ; give in evidence an examined copy of the record of conviction of the principal felon for the commission of the larceny. The original is not needed error will not vitiate ' it lor this juirpose till reversed nor does it need to shew the thief convicted is sentenced. After this proving the larceny and conviction })roceed as before directed to prove the receiving with guilty knowledge. If the goods stolen have been altered between the trial of the larceny and the receipt so as to change their designation the indictment should correspond with the fact. As for instance the principal may be charged Avith sheep stealing and the re- ceiver with receiving so ninnv " pounds of mutton, })arcel of the goods, &c."' See Consolidated Statutes, Cap. 92, ss. 7.5, 76, 77, 78. BuRGL.MiY at common law is the breaking and entering the dwelling house of another in the night time with intent to commit a felony therein. For statutable burglary see Consolidated Statutes, cap. 92, ss. 8 to 14. The hours ut common law are thus ascertained: The day is divided into daylight, twilight and night. If the breaking and entering was in the night, it was burglary ; if in the dnyl ight, not. If in twilight, iflhere were daylight or crepusculuni enough began or left to discern a man's face vithal, it was hiirglary, otherwise not. Tliis did not extend to moonlight. But now as to time, see Consolidated Statutes, c. 92, s. 10. At common law the breakingand entering must both be committed in the night time, but the breaking may be on one night and the entering on another, provided the breaking were with intent to enter and the entry with intent to do a felony. If either be in the day time it is no hurglary at common law, bnt vide Consolidated Statutes, cap. 92, s. 14-. The intent of the entering must be felonious but it matters not what felony he intended, murder, rape, or felonious cutting Mild wounding or what nut so it be felony. If a battery, a forcible entry and detainer, a false im|)risoninent,or the like be intended, it is no burglary. The intent must be proved as laid, variance will be fatal. If the intent be donbtftil it may be laid dilTerent \vays in diflerent counts. The best evidence of the intent of the burglary is tiie actual commission of the felony intended, bnt /"ailing this, other lucts may be given in evidenct-, from which the jury may f: 39 I presume it. It is a fiood delVnce on an indiotmejit Ibr biirirlniy tlml ikj IMom was intended or ivt least not ihe felony laid in tJie bill of indictnK-nt. 'I'lic house broken in burfjlary must be a permanr-nt dwellin;? lioiisi- in wliidi some one is in the habit of residinir. Iwery jieruiaiu'iit biiililini!: so used is dct-nied a dwellinfif liouse. and biir^jjlMry may also be committed in a liuildinjr lictween which and the dweilinji; house there is a comnmnication cither iiiinicdiate or by means of a covered and inclosed passaij:e. Jf nny pnrt of the building be occupied as a house it is sulhcieut, and it will also be suihcicnt thiit any partol" the Itiinily even one person lie in the house. Teiuporary absence will not de- prive the house of the protection of the law, but the j)arty absent must intend to return him se/f chi' it cannot be burglary to break into his cm])tyh(>iis('.;ind an intent to let or sell it will not sulhce. Where tin; intent to return exists the absence of the party for sometime is not very material as aj)pears by these instances, if a man leave town for the season (several months), if a barrister leave town for the lonf^ vacation also a period of several weeks (in Ihigland) intending to return to his residence the entry may be burfflary, and so where a man locked up his house and went on a journey. Some one must usually sleep in the house. Tents and booths atliiirs,have been held no subjects ol" burglary because the edifice must be a ])ermanent and not a temporary residence. Possession by a servant would appear to be possession by his master and his dwelling therein, a dwelling by the master in contemplation of law. It appears use will make an out building subject of burglary, but if it be not connected with the dwelling house some one must both dwell and lie in it. Taking meals without sleeping or sleeping without residing generally will not siifhce. A woman sleeping in a work-sbop to take care of it but dining elsewhere in • the daytime, a man sleeiiiiig in a warehouse, a servant watchin:;r by niirht in a barn for thieves will not make such tenements the subjects of burglary. A part of an out building used as a dwelling (not otherwise) will be a til subject for burglary. It seems that a, window wit bin a building is not a sufficient com- munication between a part of a building occupied by A. and the ])art occupied by B. Where landlord and tenant dwell under one roof, if there be commimi- cation, the house should be laid (it appears) in the landlord. Where several building-s communicate and where one house is occupied by difTerent parties as separate dwellings, or for dillerent purposes the foregoing general jirinciples will regulate the description of the briaking and entering. And according to the circumstances such entry and breaking will be burglary or no. The word dwelling house at common law includes all out-houses occupied with and im- mediately communicating Avith the dwelling. Sacrilege. — Entering into and breaking into or breaking out of a church or chapel and stealing therein, is sacrilege and felony. The defendant may he acquitted of the breaking and convicted lor simple larceny. The proof in such cases must be as in other larcenies. The proof of the breaking is the same as in burglary, except that it need not be done in the night time. See Consolidated Statutes, cap. 92, s. 17. ROBBERY. Robbery consists in the felonious and forcible taking from the person of another or in his presence against his will, of any jiroperty to any value, by violence, or putting in fear. The prosecutor must either prove that he was actually in bodily fear at the time of the robbery, or prove circumstances from which the jury may infer it. The force or fear must jirecede or accompany the taking, else there is no robbery. Violence subsecpiout to a taking and asporta- tion will not make the taking robbery. Where during a riot at Birminghc^m the defendant told the prosecutor that unless he gave him money he would return with the mob and destroy his house, it was held robbery, hi the riots T 40 nl" 1780 a mob came to the clcfendant's Iiuusl', headed l>y the iirisunrr, and de- lujuided lull fa crown, and the prosecutor gave it out of terror of the niuh, it Wiis held robbery, thoufth ho threat was uttered. In another case the prisoner came to the prosecutor's house with a mob and advised him to give the mob something and prevent miscliief, l)y which means they obtained money from the prosecutor, evidence was admitted of acts done by the mob ou the same day, and both before and after the same transaction, to shew that the advice of the prisoners was not bond fide, but in reality only a mode of robbing the })rosecu- tors, and the circumstiiuces wer(> held to amount to robbery. Itisofnoira- porhmce under what pretence the robber obtains the money or goods, if the prosecutor be forced to deliver it by actual fear or under circumstances from Avhicli it may be inferred. As for instance if a man ask alms with a drawn sword and gets them from the mistrust and apprehension thereby excited, it is robbery. Or if thieves finding little upon A force him by threats of violence to bring a grcntcr sum, this is robbery. Jhit where money is said to have been brought froiii (ear the tear must be still operating to constitute robbery. And Avhere one having 1 ^;' threatened with an accusation under circumstances which would have ai ' 'me the case happened amounted to robbery liad. the ])ros(cutor given thv ^ey from fear i', was held no robbery, because he gave the money not froi: fear but in order to jirosecute the j)arties. But where .f.. N. went in a coach in order to apprehend a highway and the high- wayman presented his pistol and .T. N. gave his money and immediately aflerwards jumped out and with assistance took the highwayman, this was robbery. In this case it is to be noted that violence was used, the loUber pre- sented his pistol. ]t is also to be observed that uo confederate of J. M's induced the robber to commit the act ; whereas in another cmso 11. vs. McDaniel, the prosecutor got a confederate to entice two strangers to cojnmit the crime in order that he might procure a reward upon their conviction, and the judges lu'ld it was no robljery because the goods were not taken against his will. The (bllowing examples of robbery by manual force or violence will sufiice for our purpose. If a man knock another down and steal from him whilst he is insensible on the ground, this is robbery. Where the defendant tore a lady's ear through in snatching away her ear-ring it was held robbery ; wliere the defen- dant tore some hair from a lady's head in snatching a diamond pin from it, the pin having a corkscrew stalk and being much twisted in the hair, it was held robbery ; where a watch being suspended from a man's neck by a steel chain, wound round his neck, and by pulling two or three jerks the thief broke the chain, it was held robbery. So it is robbery if there be a struggle for the property and the goods be taken from the prosecutor by superior force. But merely snatching property from a person imawares and running away with it is no robbery. And if a man privately steal from another and keep the stolen goods by afterwards putting him in fear, there is no robbery. So where the theft being no robbery, a scuffle takes place in the attempt to apprehend the thief, it seems to be no robbery, for the struggle must Ije for the goods not for the liberty or capture of the thief. Where a man took goods to the value of eight shillings and forced the prosecutor to take one shilling in payment, it was i\eld robbery. The goods must be taken ei'her from the person or in the pre- sence of the prosecutor and it seems they must be in his personal possession at the time they are attempted to be taken. If a ihiefput a man in fear and then ir. his presence drive offhis cattle, if a man flying from a robber drop his hat or throw away his ])i!rse and the robber take either, it shall maintain the indictment. Where the prosecutor being attacked with great violence, a person who was carrying a bundle belonging to the ].rosecutor dropped the bundle to go to his aid, and one of the prisoners took tiie bundle, it was said not to be robbery, because the bundle was not in the prosecutor's possession at the time. It may be proper to remark that A. may be robbed of B.'s goods in which he Uiis in charge. And see larceny ireueiMlly as all llie iiiiovdient.s of Jarceuy must exist in ruhbcry togetln'r witli the fiJrce or lear or else there is no rolibery. J'\)r the vnrioiis statulalile |irovision.s as to this ollenee and where it is airf>ravated therehy, see the provineial statutes. A |)ri.cutrix was threatened by .sonu; persons at a mock auction to be sent to Bow Street (jjolice ollice) and from tluince to ISewgate unless she jiaid for an article they pretended wns knocked down to her though she never bid li)r it, and they cjilied in a pretended constable who took a shilling from her not to take her to prison this was held no robbery, but a simple duress (that is false imprisonnu'ut.) But where the defendant with intent to extort from a prisoner in his charg(> fc)r an assault, hand-ciilli-d her to another i)risoner and beat her and kicked her and put her in a hackney coach, and took four shillings out of her pocket to ])ay for the coach, the jury linding that he h;ui jireviously the intent to got all the money the prisoner had. and used all this violence with that intent, the judges held clearly tliat this was robbery. Where one is indicted for robbery aggravated by stabbing, the wound being given immediately before or after or at "the time of the theft, the vrord "immediately" is to be interpreted by the court, and if the prisoner be convicted of an assault under an indictment for robbery if only one count was good and though the case was left to the jury on a bad count, it seems the con- viction for a.ssault will hold, and it also seems immaterial whether the jury find the assault to liave been with or without intent to rob so ihr as this that it comes witliin the statute. Consolidated Statutes Cap. 92, ss. 1 to o. Extorting or nAiNiNG monkv lu threatening to accusf. or acclsing A MAN OF AN INFAMOUS CRIME. — It is uot material whether the party threa- tened be guilty or innocent of the ofience imputed to liiin. The threat need not be that of judicial accusation a mere threat of exposure will sufhce. It seems necessary to complete the olU'nce that the money or other thing should be paid or given under the threat and the intimidation must be on the mind of the person threatened to be accused. The jury need not confine themselves to the consideration of the expressions used "before the money or thing \\as given but may connect with ihem what was afterwards said by the prisoner when taken into custody. (And probably with any expressions subsequent to tlie act.) Demanding money with menaces witli intent to rob, tlie menace being either expressed or implied, assaulting with intent to rob, and sending letters or uttering threats to accuse of crimes with intent to extort money are all crimes fcjr Avhich vide the Consolidated Statutes cap. 92, ss. 6, 7, and also bear in mind the common law principle that all attempts to commit felony not otherwise ])rovided for are misdemeanors. riRACY. Piracy is robbery upon the high sea. It must be committed beyond low water mark on the coast of the country trying the offence, and not in any water between headlands or any waters i?tfra corpc.'i commitatiis, creeks, rivers, havens, &c. This does not hold as to foreign coasts for then to cons- titute piracy, it may be done wherever great ships go. Where there is ebb and flow upon the coast to be piracy the fact must be done when the tide is in, andnotupon the strand, of the country trying the offence. The description 42 01 iho sliip robhod must, be proved as laid, iC the sliip or other vrsscl In- unknown tlio indictnicnl must so state it. 'JMie iiif^redioiits and proof in otiicr respects art' Mic same as in rol)l)cry on shore, hut some evidenen nmst be given that the IKTSons robbed were in tho (Queen's peace, it will not be presumed as in other cases. The; goods must be both alleijeil and proved to be those of a British ,sHl)jefM, or of an alien friend, Ibr enemies eannot l)e pirates. 'Die taking must be without iuithority from any prince or state for no nation ar(! deemed pirates, and the barbarity of the state to wliieh a man belongs does not affect his jM.siiioii ill this respect. Thus the Algerine corsairs were never deemed pirules but eia^mies. Li:tti:us. Sec Thrents. Lewdness. See Nuisance. LIBEL. Liui'.L may be divided under the libels particularly affecting individuals and libels particularly affecting the ])ublic. 'i'he latter are the graver, both are misdemeanors at common law, punishable by fine and imprisonment. For the iormer an action lies, and not for the latter, except wliere a particular man is mjuied, in the course of a libel of special conseijuence to the public. The reason for which the crime of libel on a private man is indictable, is that it is calculated most directly to provoke a breach of the peace. Words written Will be indictable which if spoken will not be indictable, for writings are both more deliberate and more injurious than words, and also vcrbcc xolant litera scripta nianent. 'JMie truth is no exciisi; for a libel, and being usually mor<' provoking than falsehood, it has been even said " the greater the truth the trrenter tlie libel,"" but though in no case may the defendant justify or prove the truth on criminal process, yet an information will not be granted in the Qu<'eu's Bench ibr libel on a private individual, if in the country imless he iieiTiitive it by oath, (this remedy has not been heretofore in use ia Canada.) The origin of the word libel is lihellum-A little book, the offence of libel against individuals may be described as a malicious defamation of a person made pub- lic l)y printing, writtings, signs or pictures, to provoke him to wrath or expose him to public hatred, ridicule, infamy or contempt. The word signs, means some permanent mark as an effigy. Ft is a good rule that whenever an •iction will lie for libel without laying special damage, an indictment will He also, and likewise wherever an action will lie for slander without special damage, an indictment (the words written) will lie for libel. A libel may be committed on the memory of the dead, but the indictment in ■sncli a case must charge the intent to have been to bring hatred or contempt on the family of the deceased, or stir them to wralh. Sending a letter •containing libellous matter is indictable, as it is calculated to provoke a breach of the peace, though it bo addressed privily to the party insulted by it, and not published, nor yet intended to provoke a breach of the peace. It suffices that it might have that efTect, and needs no special allegation of that in the indictment. No words will make a libel on a private person if they be but spoken and not written. But knowingly and wilfully dictating a libel which another writes is composing and publishing it, and so in like manner reading it aloud is a publishing, but not if he who read was innocent of the foreknowledge of the matter, and will to circulate it. A pub- lishing must be wilful, the handing for instance of a newspaper containing a libel to a man in ignorance of its contents, will not make the party who so hands it guilty of libel, but all willfully concerned in the circulation or publish- ing are guilty of libel. A libel may specially affect a man in his profession or calling, and may be so laid, as calling a physician a quack or the like. In like m way it may iil.M> alK-fi. :i jtiiMic liiuctioiiiiiy in lil.'s ili.i;nity, iiiid sIk.iiIiI in micIi case 1)0 (Iniwu specially accdiding tn - r<'uinst.uncc.si IT the libel allciics thd office or the pioscciitnr ajiju-ar to liiivc (M'cii|iir(| it, it is ])ii)o[' eiieiiL'li of his oHice. 'riie lilicls more e.s|u;eially alii'ctiii^ the |iiil)lic are tlmse wiiicii are scditiiJiis or Mas|ilieiuous, or wliicli reliect. oa tlie admiiiistratiou of jiistiei'. All iiijcis oM inaels, and thoiiyh it is a i^ood deleiieo to a charge of malicious libel, that it is a triit; rc[)ort ot' proceed in l^s mi a. court ol' law, and published lor the jiublic instruction, yet it is no delence lor publishini;- indecent and scandalous, or blasphemous matter to the detriment of tin." jmblic morals. Where ambiguity is used in a libel, it may bo explained by niueiuioes, it is not necessary that plain lauf;;iiaj;;e or desij>-nations even generally under- Stood should ba used in a libel, if the intent may or can be made out and is libellous it is su(hci(;iit. Nicknames, abbreviations and indirect allusions may all lie c.X[ilained, anil so may ironical compliments, suggestive (jucstions. allegories, motaphurs ami all the other firts and diguises of satire. Where a foreign language is used tlie libel must be set out willi a translation, and the accuracy of tho translation must be proved. Other publications and other parts of the same publication it would appear may be giv(ni in evidence, (to explain the intent of the libcd.) either for or against the defendant. Thore imist lie a jniblication else there is no libel. To jinblish to one person (even it is said to the person aggrieved) is a snllicient publishing. The libel must be set out correctly. Where inuendoes are used tliey must be proved as laid. Extrinsic facts are to be slated in an inductive or introductory way and not as iniieiidoe. Whether the defendant published the libel or nut, and whether the intendment. and inuendoes are proved arc cpicstions of fact for the jury, but it is according to the majority of opinions for them to take the direction of the court, as to what is or is not a libel, the same being a question of law. Malice is to 1)e presumed from the matter published and need bo not specially proved by the prosecutor. Its absence is a good defence but must be proved and not pre- sumed. In seditious libel however it is no ilefence that the intent of the writer was innocent, if the effect be to alienate the alfections ot the people from the government, or there be a likelihood of its doing so. Foreigners of consideration in their own country may be libelled, and to libel them is indictable as likely to disturb the relations of the country with foreign coun- / tries. Their residence abroad is not material. There can be no libel on all \ mankiiid or on orders of men so widely di (fused as to deprive it of any particu- iler direction. But such a libel on a body of men as may (seeing the ordinary frailty of humanity) incite them to a bri-ach of the peace or others to break the peace towards them, is a libel. I'or instance a corjMiration may be libelled and so doubtless might a public company or its directors collectively. Slan- derous words spoken to or be(()re and of a magistrate in the execution of his office, are indictable as a misdemeanor, and jrtinishable in the same manner as libel. It is sufficient to shew the magistrate acted as such his office will be presumed, and so will the office or profession, of any man assailed therein. Lotteries. See Consolidated Statutes, Caj). 9.1. Lunatics. See Consolidated Statutes, Caps. 73, 108, 109. 44 MAfMiNEnr. Sec Consolidiitetl PtiiliUos, C»]». 93, ss. Sand 18. Mails. Sec Post Ollirc. Maiming Catti.k. See Consolidated Statutes, Cap. 9.'J, s. 16. MAiMi\(i OR Mayiikm. Soo Woiiiulinfi^. MAINTENANCE. Maiiitcnnncc froin (mnnii toner*!) is nii imlawfiil tnlvinj:!; in hand or iipliol- dinfi: of aiiotlicr person's ipiarrel or suit. The interference need not be corrupt it is sutiieienl if it be oHieiouN and the party bas no personal interest in the matter, lioth by statute? anil eonunon law Ibis is an indiclahlo misdemeanor punished by tine. Maintenance is divided into maintonanee in the country and in town. No private action lies lor the lirst but a suit may be bad for the second, Holdiiif^ lands for another by force or std)tilty is maintenance in the country. I"\ir one who has no personal interest to counsel advise or assist another in his suit or lend bini money to carry it on is maintenance. A lawyer who does his best for his client aceordini^ to his duty is no maintuiner nor is he wiio counsels his kinsman or relative but it seems he may not lay outhia own money unless lie be father, son or heir aii[tarent to the party. Nor is it a maintenance to lend a poor man money to Ciirry ui\ a suit out of charity some call this lending to bis poor "neighbor''. The word "neighbor" is here used in a scriptural sense and includes any body. Any self interest excuses any act of simple maintenance. A lawyer may be guilty of a simple maintenance if he wilfully and corruptly or maliciously induces a party to take out a suit as setting np a straw plaintili" to vex and harrass a man or entail a settlement unjustly hut he is no maintainor if be A\as no party to the commencement of the suit. • t Chamjierty is a maintenance in which the maintainer is to receive part of the thing in dispute for his services or assistance in getting it. Buying titles in dispute is also a misdemeanor in the same nature as the foregoing. Barratry. — lie who frequently and cnmmonly commits maintenan- ces is a common barrator, he may be punished as above and he may be also bound to the peace and good bebavionr and if a lawyer lie shall not practice again. Also he who commonly moves and excites quarrels between others by spreading calumnies false reports and inventions is a common barrator. More than one act must be proved to convict a man of barratry. The indictment against a barrator like the indictment against a common scold (now dis- used) may be general merely charging the defendant to be a common barrator but he will be entitled to a note of the particulars to be jiroved against him. Eaves droppers or such as watch under eaves or windows to overhear con- versations and go about reporting them may be indicted and punished, the crime of these bears some resemblauce to barratry and is therefore mentioned here. No man's own suits will make him a barrator nor can he be a barrator for con- tensions or quarrels in his own right, but only by stirring others to quarrel to- gether. Malicious Injuries to Property. See Consolidated Statutes, Cap. 93. Manslaughter. See Homicide. Manufactures. See Consolidated Statutes, Cap. 93, ss. 4, 17. Menaces. See Threats. • Imperial Statutes, 1 Ed. 3, St. 2, e. 14,-20 Ed. 3, c. 4,— 1 E.3, c. 4,— 1 R. 2, c. 4,— 3-2 H. 8, c. 91, t Imperial Statutes, 3 Ed. 1, o. 25,-28 Ed. 1, c. 11,-33 Ed. 1, St. 3,-1 R. 2 c 9,-31 Ed. c. 5,-32 H. 8, c. 9,-38 Ed. 3, St. 1, c. 12. l.') MiMSTKiUAi. Officers. Sec .Mis|>nsi(>M. MLSI'IIISION OF TIIEASON AND Ul" l-Kf.oNV AL?;0 oF DKiIfE. Till! two first i'on.si.il. ill a porsoii'.s biin-Iy coiimjaliiiif trt'iisdii or rtlcny thoiiffli lU'ilhcr iiidiiif^ nor ul)t;lliii'j; imr foii.scutiiiif in llie I'l'lony or treason. Of misdtMiuiniior tliore is no misprision. I'or misprision of treason a man shuiilcl lio imprisoned lor liCi', fur felony a year, if a slieriH'or other offieer of tlie law less less than a year il a jinvute miin. Kxeept. in thell whether a reward was taken or not is not essenti;il tu tin; olienee. A wile cannot h(! {jnilty of mis|)rision in concealin not amount to more or has not been otherwise provided for, and though in the case of Peers and some other great officers of the realm the trial must be belbro J'arliament or tlie Peers, yet in all other cases the court of QuT'cirs iJench is the proper court ibr the trial of such cases, inasmuch as it taki-s special cognizance and purview t)f the admi- nistration of the law, and IS the proper court to control its officers, and there are few official misdemeanors or misjirisions which would not be brought into the Queen's Bench by certiorari if inilicted for at sessions. I will now give some exanif les of what will or will not make ministerial or executive ollicers of the law answerable criminally lor misconduct. Acts of o|»pression, extor- tion, partiality, corruption, negligence, bribery, (or bribe taking), and even illegal lenity are indictable, and still more so are refusals or neglects to dis- charge the duties of ])ublic office. A magistrate is excused for every act ignorantly done however grievous, and it is a general rule that gratuitous ser- vices rendered to the public are not to subject him who renders them by virtue of office to liability for mere errors of judgment, particularly where the acceptance or execution of office is compulsory. But all official acts of a wrong injurious kind done from an ill motive or bad heart, otherwise said to be done by malice or froward mind, if of public evil consequence, are indictable. Thus exacting excessive bail, refusing to admit to bail when the party was entitled to be bailed, taking bail where it ought to be refused, or taking insufhcient bail (especially after the refusal of another magistrate to do so,) are all matters which may be dealt with criniinnlly and so may the taking of extra judicial affidavits, or the administering of oaths (otherwise lawful) by persons liot duly qualified. He who acts in an office to which he is not properly appointed or duly qualified, acts at his peril and must answer for his acts. He who exe- cutes a warrant must see it is sufficient on the face of it else he is answerable, if it be sufficient he who issued it is answerable, but not he who acted on it. 46 To JJiuiii: ni- utt('iu|it tu lirilu! j)iil»lic oiriccrs (csjKJciivlly those ni' lusticf) i^ ;i iiiisdi'iiiciiiior. Acts dI' nppnrciit furriiplioii ami extortion iilwiiys curry h prcsiiijiption ol'iiKilicr;, luid nets o( omission curry ii prcsiiiiiption of miilice in some iMsi's which (III not. iUlciul nets orcoiiimission. For instiuicc I'd'nsini;- oi nPRlortiiifr to oxecnto th ■ oHicPs of .Inst ice of tlie lViic(! or Coiistiililc uro ofll'nces in wliicli (lisobcdience of ilnty is presumed to he niulieioiis (of fro- wurd mind) or wilfnl. Hut \vh(>re oppression is alleged against a Justice of the pence, express malice must ho proved, or circnmstiinces must lie so strong and peculiar as to carry an irresistihje iiilercnce iii^ u iiiimiirt %•» close lis to stillc iiuii witii iiiiiliui! iiCoretlioiiylit. Misprision isii word liikcn I'roin /w>y^/*/.s(l''rt'iu'li lur t'oiit('iii|)l)iiiid il iiH!iiii> a contempt lor wliidi iin iiidiiMuuMit imiy lie iiisttiul ol'or opli((imlly with ii ooiii- utitiiiciit. Thus foiicculiiif^ j^rt'nt criiiics uri' t'oiil('rii|il ()(' iiistii'o or more. A rnisiirisioti is n iiiisdcnii'iiiuir hut in the ciisc of lui nssnnlt iii the (iici' oi lUo court of (.^noon's bench the coiittMiijtt. isnjri^niviitcd lu l('l(iiiy,tlioiiear.s old, and able to travel, refusing to aid a constable when culled on iii the Queen's luune knowinfr his ollice, (which may Ih> interred from liis diess his stall' and tin; like,) refusing to help to take a robber or other ollendrr purMied by hue and cry, refiisuiii; to help to suppress a, riot or alliray, refusinj^f to aid a constable in escortin<>' and securing a prisoner if called on, or ^neneraliy to re- fuse to join power raised in the (^iieen's name by suUicient oUicers ler a lawful purpose, refusing to arrest (me whoiiives a(hini::erous woundor strikes a deadly blow in the view or [)resence of him who refuses to arrest, refnsinee Larceny. Newspapeus. Vide 1 Vic. cap. 20. Nuisance to be indictable must be common, that is to say, it must aflect the general public. Carrying on an ollensive trade in a populous neighbor- hood or near a highway, is a common nuisance. No length of time will legalise a nuisance, but it is a good delcnc(! that the trade was carried on m the same place before the houses or the road were made, or that other trades already established in the same neighborhood created the same nuisance to a degree not perceptibly increased by the defendant. To illustrate, — If a man erect and use a slaughter-house amongst the private habitations of his neighbors, it is a miisanco, not so if a man choose to go and inhabit near a slaughter-house. Accumulations of oflal and liltli, and keeping stinking substances in populous places, placing putrid carcases near the highway and the like are nuisances, and as such indictable misdemeanors, punishable by fine or imprisonment or both, and the nuisance to be abated if continuing, and so set ibrth and proved. Sports may be of such a nature and so carried on as to be a public nuisance, such as baiting a bull on the highway. Keeping ferocious or unclean animals in such a place or manner as to incommode the public, as keeping liogs and feeding them with offal near a public street, a dangerous bull in a field through which a footway passed and keeping a fierce dog unmuzzled, (but on this see 13 & Ii Vic. c. I*,) are all common law nuisances. So is a common scold, but such a person now a days generally gets disposed of under the Police Ordinance. The making and selling squibs and fireworks as well as thowing them about, is a nuisance by an imperial statute, and so are indecent plays, &c., and unsanc- tioned lotteries, &c., but to all these as well as other nuisances to be men- tioned, this general rule holds good that the Provincial Statutes must be con- sulted as the old remedy is little used, and under different heads and various provisions many nuisances are dealt with in a manner and by names not 1ft mm kiiou'ii tu iiiorc uiiciciit tiiiiCK. K(>('|)iiig II Imu'dy-luiUMC, (I (^urniiif^ lioiisf, or (I ilisordi-rly lioiiNc. (Sci! ('oiisolidutcd StiiliitPN, (rap. lOf),) uro c.onimnn miisMiuM'.s, |iiiiii.sli!ilili' l)y liiii- niid iiii|iris()nmt»nt,, or «'illii'r, at ('onirnoii law, iiiul !i. riiuiii 111' oilier |):irt of u Imiisv sidliccs to .sustain tlic iiidii*tiuiMit us miit'li us till! whole tciKMiii'iit. A disordirly Ituiisc; niiist Im^ so noisy an to distiirli the \vlio|(! nciijliliorliooil, or at least several adjaeenf houses, or it will not In; indictatilc. A liawdy-liotisit must he more than a house kept hy a wiijiiiiii (iir her own pioNiitiif ion. Ohslriicliin^ or liiiliu^ to repair a highway or liridi,'!' it' lioiiiid to lit) NO, or ohstriietinir a iiavijjfalde river are iudietahle nuistinooj, [{(idles of men as W( II as iiulividimls can he iiulieted ll)r this kind of niiisanoo. A uiiole parish or dislrurl iT lioiiiiil to repair a highway may he indieled and lined, with costs to the proseeiilor, lor not doing it. lie who ohstrnctN n road or liighway, may he iniitrisoned witli or without line, or tiiu! only. If a man's ship sinks hy accident he is not indietahle liir not raising it, nnd where the impediment l.u the navigation is of slight ini|iortance, and the henelit to the piihlie great, it has heen ipiestioned whether tln^ indictment should he sustained, and the decisions appear staiiewhiil discordant, or ratlier tliey go ngainst this opinion. Fnrion.s driving is a sort of comiiKin nuisance for which, sco 18 Vic. c. 100, s. 24-, jinr. 17 ; 18 Vic. c. 1 l.l. Open and notorious lewdness is also indietahle, keeping a hawdy-house, and ohsene publica- tions are descriptions of this ollonce already disposed of. hulecent exposure cotnes under tlie same head, hut it is more oflen treated summarily than by indictment. Jiook to loose and disorderly persons or I'olice Ordinance. Still the odi'iice is an indictable misdemeanor with lino and imprisonment, iind may be so treated. Oaths — Administering and taking unlawful oaths. Vide 2 Vice. Orchards. Vide 18 Vic. c. 100. Perjury is a misdemeanor ofajiarticularly grave character,and which the law anciently marked with disgrace, by the punishment of the pillory, this is abolished, but the crime is still one of peculiar infamy, and may by Ibrce of the statute law be punished by the Penitentiary. Toconstiiute perjury an oath or afiirrnation (allowed to certain sects) must be taken in a judicial proceeding before a competent jurisdiction. It must be material to the (piestion de- pending and tlilse. The iiilse oath or afhrmation must be taken deliberately and intentionally, mistake or inadvertance aviU not make perjury. It must be either wholly false or if true the witness must t)e ignorant of the truth he swears to. As if a man swear J. N. revoked his will in his presence, if .T. N. actually revoked the will and the witness knew it not, it will be jierjury (this is an English instance arising from their testamentary system.) A man may be indicted for perjury in .swearing he believes a thing to be true which he must know to be false. The Queen's Bench alone can try perjury (cases triable at Sessions under the Act of Elizabeth never arise ill Canada.) Perjury must be proved by two witnesses. False swear- ing as to the credit of a witness may be perjury and generally is so as it is usually material. A judge in England may direct a prosecutio i for perjury committed before him, if he think fit, and assign counsel to the prosecutor who must act gratuitously and exempt the prosecutor from all fees, it is provided by statute he must so act either instantly in Court or within 24" hours after- wards. It matters not whether the oath be that of a christian. If it is a lawful oath, the crime is the same. See Consolidated Statutes, Cap. 5, also Cap. 99, ss. 39, 40 and 71. Subornation of Perjury is misdemeanor and consists in inducing any other to commit that crime. Prove the perjury, the mere previous conviction for it 49 will not milfiec, thuti prove tho Mihorimtion. Tlin jicrjiiror i» no witm-ss and nlU-r convictiuii can never \)v NWurn ifxccpt in luiswi-r to a riilougtiinst hini.s«:lf. Tu uttcnipt to .suborn is niiii(U>uii'unor. Pehhonatino a Constadi,k or other Officer in iiiilhority lUix-ly uikI with- out luwliii cxi-usi', IN u iiuhtiemcumjr. I'or Fuhc rcrsonation, sci; Fulsc Prftenct'S. Pktty Larcenv. S'ic Lrirct.ny. I'r.TTV Thkason. Src Miinlt'r. I'lUACv. ,Se»f Ante Pago .']9. Poison. S<'(' Murder, ulso CoiiNoIidutfil Stiitiites, Unp. 9, «. f). PnKTKNCKs. f^ce I'aisc Prt'teucc's. Principal and Acckssouy. See Aecomplice. Provocation. Set* Ciiulloiige, Assault, Homicide. t^uAV. See Dudi. PtAiLWAYs. See Consulidutod Statutes, Cap. !J3, ss. 30, .31, 32. flAPE. If a iiiuu euuseii wojiiaii to yi( Id lo lus carnal desires tliroiiiili (i ar •)( death or duress, it is rape. So takiiij,' ln-rby violenec is rape, but tlio crime must bo a;!;aiiist her will else it is no rape. 'J lial tlio woman was u common strumptit or was the concubine ofllu; ravishcr is no defence, for the crime is rather iho violence to her will tiian the injury to herchastity, and the law fjives her leave to amend her life and will not suff(;r her to he forced to continue it, but in such cases it is for lh(! jury to consider the character of the witness as iJ:oiiig to the fact of the presence or absence of con.sent, and the defeiichuit may give evidence of the woman's notoriously bad character for want of chastity, or common de- cency, or her connection with himself, but he eunnot give evidence of other particular facts to impeach her chastity. So what she said herself so recently after the lad as to preclude the possibility of her being practiced on may be taken in evidence as part of the same transaction, though the particulars of her complaint are not evidence of the truth of her statement, and ought not to be asked in her examination in chiel, and have been overruled when so asked, the soundness of which rule has been questioned. The woman is an adequate witness to prove the whole case, but her credibility is for the jury and they are to weigh every circumstance atlecting it or tending to shew that her story i.s or is not probable. To constitute the ofrence there must be a penetration, there needs no emission. On the extent of the penetration decisions differ, though the authorities generally say the slightest penetration will suflice. A majority of the judges (in England) have decided that having a woman by deceit, she believing the party to be her husband is no rape but they are clear it is an assault, and that the prisoner may be sentenced to hard labour for it. To take advantage of a woman who is delirious or to drug and intoxicate her in order to know her and then do it is rape. '1 he case of a female child under ten has been already disjjosed of. If a child above ten and under twelve consent to a man's wishes he will be guilty of misdemeanor, but under indict- ment (or the .same if acquitted thereof, cannot be convicted for assault, but if he did not complete the offence he may be indicted at common law for an 4 50 attempt to commit the statuublc misdemeanor. If he have such a girl against her will it is rape, the same r.s on an adult. See Consolidated Statutes Cap. 91,8. 19,20,21,23. Rapf. is a capital felony. Tf the defendant be under fourteen he must bo acqiiittncl ii' nargedas princijtal in the first degree, that is, as an actual ravisher, but he may be cnnvicted of an assault, a.jul have sentence of imprison- ment with hard labor. A husband cannot be guilty of ravishing his wife, but he may be principal in the second degree, and so may u boy (Uider fourteen, (having malice and it proved,) and both may be accessory. To convict a boy luidcr Iburteen in any of the above cases, guilty knowledge (or to express it ditlcrently malice above his years) must be shewn. If a woman yield through fear of deatii or duress, it is rape. See Consolidated Statutes, cap, 91, s. 19; cap. 99, s. 70. Ukckiving Stolkn TiooDs. Sec Afitc Viige 38. Re(;rating. See Engrossing. Rescue. Se<' Escap<'. RIOT, kc. Riot, rout, unlawful assembly, tumult, affray, riding and going armed, and traunng to arms or drilling unlawfully, are offences which w^e shall now consider. When tliree or more persons assemble themselves together with an intent mutually to assist each other in au enterprise of a private nature with force and violence against the peace and to the manifest terror of the people, whelhor the act intended be legal or not, it is riot if they execute their pur- pose. If they move towards it but disperse without actually executing it, (by moving, any attempt or act towards the design is intended,) it is a rout. If they assemble only with an unlawful intent, but do not move (or commence) to complete their purpose, it is unlawful assembly with tumult or sim])ly un- lawful asserably, according as they use more or less noise and clamor. Being armed, using threatening speeches, turbulent gestures, or the like are circum- stances suflicient to terrify the i)coplc and with the other ingredients of the of- fence support the indictment in riot and tumult, but no words will make an affray (though a shew of arms may, so will anattemi)ttoiise them,) nor will violence unless it b(Min a highway or other public place, for if not however great the assault it is lift iu affray of the peace or jieople (which latler word is the cor- rect one though both are in the books). If there be a levying . f war, the de- fendants on ail indictment for riot, tVc, must be acquitted for the misdemeanor merij;es in treason. If persons originally met together tor innocent purposes, fall out and agree to stand by each other and form into parties and then fight, it is more than an affray for there is premeditation, it is riot. Rioters may act seditiously and an unlawful assembly may be also a seditious assembly. On this head see sedition. The indictment in such cases uses the word •' seditiouslv "' with unlawfully, iVc. If persons to any number meet for an innocent or lawful purpose and then fiill out and fight on a sudden, it is no riot but an afiiay. All these offences are indictable misdemeanours. Two men will suffice to make an affray. Riot and tumult are usually punished by indict- ment iu the Queen's Bench and Sessions, and included together as above. So is riot and assault. Under this last indictment, a conviction may be had lor the assault, but if proof of the assault fail the pr. oner must be acquitted. Riot, affray and assault may all be joined in one indl'-tmc"*. However un- lawful the acts of an assembly maybe and however unlawful the assembly itself if it be not accompanied by such circumstances either of actual force or violence, or at least of an apparent tendency thereto as are calculated to inspire 51 terror, it is no riot. In afihiys it is only those wlio net luilawfiiUy who are guilty ol' ihr ulPrav. An aliray may be coniniitlcd iiv assem- bling or by fifihtinfi or li> the shewing of Jeadly we:ii)ons as by drawing swords, levelling gnus or (he like. Riding or going uniisnally armed or attended is an otli-noc nearly apin'oaching an atiray/ The element of the ofrenco in both cases is the (error with which it inspins the peaceable in pidilie places. The word unusually is of great force in tliis oflencc. fcfo much tha( when persons of (juality usually wore arms and had large retinues, their usual arms and lollowing jjut them in no fear of lln^ law but only an (^xtrafirdinary abuse of their ordinary privileges. Drilling, training to arms, &;c., without the sanction of the projjer public authority is a misdemeanor in the nature of the foregoing, and if with treasonable intent may be laid as an overt act of high treason and if not laid given in evidence of some act which is laid as shewing the intent of the prisoner. In riot the intent of 1 he rioters must be to redress some particular or private grievance, as (o juiU down a particular building or iiiclosure ; if it be for the redress of ])ul)lic grievances, or for so ge- neral an object as lo effect the policy of the nation, as to pull down all iiiclo- sures, all bawdy houses and the like, it is treason. Particular statutes liave provided for cases which we shall {)resently reler to. By common law a private person may resist and if he can supi)r'^ss riots, and indeed it seems he is bound to do so, if able, fiir more so all officers of the Peace, but tho latter may command others to assist them on pain of the law, and this a private man cannot do, it S( eras also that one may arm especially on a call for arms to suppress the riot, lint this is to be done with great caution and is attended, it seems, with much hazard. By statute law one justice of the peace may bind rioters to their good behavior. He may arrest them or order them to be arrested by mere word of mouth without warrant and by force of that command the per- sons so commanded may pursue and arrest the rioters in his absence as lu his pre- sence. He has also a right to exercise all ihe same powers over th^s as over any other offence as to issuing his warrant and binding the rioters or suspected persons to appear at the Sessions or Term or committing them in defiiult of sureties. On this head see the statutes.* By statute in cases of riots, routs and unlawful assemblies, two justices of the peace may come with the sheriff" or the under sherifland the power of the county, and compel the assistance of all the " liege people " able to travel on pain of fine and imprisonment and if the Justices overtake the rioters or meet them in a body or assembled they are under penalty to record the riot and commit the rioters to gaol as convict till they ])ay a fine by a record on their own view. But if they have no view ihey shall (under penalty) summon a jury within a month to try the rioters by an inquisition of 24< men, and if the inquisition or incpiest fails to convict, then the justices within another month (under penalty) shall certify the matter to the Kiug and his Council or Queen and her Council, and not only are they to certify the rioters but any unfair :.cts or practises by laboring jurors or the like, which may have caused the inquest or inquisition to fail in con- victing the rioters, and this certificate has the effect of the presentment or indictment of a Grand jury. This statute however is not at ])resen( used the usual mode being to convict rioters for trial the same as all other accused persons. But the statute commonly called the Riot Act, is still frequently acted on. By this Act if the rioters are above the number of 12, one justice or officer with the same amount of power and dignity shall make proclamation or cause it to be made commanding the rioters to dis- perse, and if they remain together to the number of 12 or more over one hour or more afler proclamation it is felony and so is it if they obstruct or «. 2. • Imperial Statutes, 3, 4 Ed. 3, c. 1,-13 H. 4, c. 7, s. 1,-1 G. 1, c. 6,-2 H. 5, c. 8, 58 forcibly prevent or attempt to prevent proclamation being made. Persons riotously demolishing or beginning to demolish a house, a church, a dissenting chapel or other building within the Act whether to the number of twelve or not are guilty of felony. Felonious rioting must be presented for within twelve months of its commission. Actions may be maintained for injuries to property by rioters imdcr certain circumstances. Unless the felonious intent be proved as laid the rioters must be acquitted however riotous their conduct.* It IS to be observed that the old statutes as to riots and forcible entry, &;c.,are by no means repealed and that disuse abrogates no law. Hovv far all could be a 'ted on in Canada might be a (question. Persons quelling riots by the riot Act as well it is said as at common law, are justified in killing the rioters in the preservation of the peace. Consolidated Statutes, Cap. 29, — Idem, Cap. 82, — Idem, Cap. 104, — Idem, Cap. 93, s. 5, 18, — Provincial Statutes, Cap. 100. River, Bank or Wall. Sec Consolidated Statutes, Cap. 93, ss. 19, 20. Robbery. Sec Ante, Roots, plants, trees, fruits, vegetables, (fee. See Consolidated Statutes, Cap. 93, ss. 2+, 25, 26. Road. Nuisance. s. 14. SACRtLEGG. See Ante. Seal. See Forgery. Security. See Larceny. Sedition. See Treason. Sending Explosive Substances. See Consolidated Statutes, Cap. 91, Ship. Sec Piracy, Larceny, Con. Statutes, Cap. 93, ss. 7, 8, 9, 10, 11, 13. Shooting. See Murder and Consolidated Statutes, Cap. 91, ss. 6, 7. Shop. See Larceny. Shrub. See Roots. Stabbing. See Wounding. Starving. Sec Murder. Stealing. See Larceny. Steam Engine. See Railways. Subornation of Perjury. See Perjury. THREATS. It is a misdemeanor at common laAv to .send a threatening letter as directly tending to a breach of the peace, be the object and nature of the threat what it may. For Statute law, see Consolidated Statutes, Cap. 92, s. 7 ; see also Accusing. TREASON. The name of treason is applied to the highest crime against the faith and allegiance due by a subject which can be committed. Thus the murder of a Query. What effect has Cap. 99, s. 64 of the Consolidated Statutes, on sach a case. 53 master or hiislmiul who is lord over his household was fbnnerly petty tR'asun, and the same crime of an utter casting ol!' of duty to the sovereifijn received hy reason ot" its " bud eminonce" the prefix of hiffh. Inasmuch us this crime of petty treason is now njunler only, (Consolidated t>tatutes, Cap. JM, s. 1,) it is simply of liiffh treason that we have to treat. At the common law this crime was very restricted being almost entirely confined to attempts against the person of the monarch, it appears also it iniglit be proved by one witness and circumstances. It has been extended by the Legislature, and in remote times was subjected to some very arbitrary ct)nstructions. Coining was at one time treason, but the capital execution was milder in regard at least to male coiners than that fif other tri'iters, they were drawn tuul hanged only. Forging the great seal is high treason with judgment accordingly, altering the great seal though treason is not capital being a matter for transportation. We now come to high treason as it is usually understood not as a crime against the mere prerogatives, appanages or impress of royalty as the above mentioned forgery or as (now repealed) in regarrl to coining but as directly or constructively, against the Queen herself, her person, state and government. Of this crime the chiefest guilt is compassing or imagining the Quten's death, and this includes levying war directly agjiinst her or conspiring to levy war against her or to dethrone her or oblige her to change the measures of the govenunent or adhering to her enemies or inciting foreigners to invade the realm, ah which are within the intent and compass of contriving her death and may be so laid or laid ns dis- tinct treasons at will. The intending and imaging that is desiring to bring about the Queen's death is itselftreason, but inasmuch as the imagination of the heart cannot be known except by actions, and words alone are not such proof of a purpose as should deprive any man of life or member, it is law, that every treason must be proved by one or more overt nets and all under statute at least (and we shall say no more about common law treason, the mere mention of which is sufficient as for practical purposes it liis been long superseded) must be proved l)y not less than two good witnesses of e(jua! credit. It is a good ancient maxim that "bare words may ^' ukc a heretic but never a traitor" but then they must be indeed bare words. For (/tti fticit per nliumfacit j)er se, he who counsels, instigates or abets, acts, md in treason all are principa's, nnd though no action follow the counsel yet the counsel ilseirsnfticieii! a -In ws the purpose and imagination of the heart and is an overt act. So of vvntings, scribere est agerc, and words which spoken are but sedi'ion ;it the i-ost, if writ- ten may be treason, and in this species of treason it is a good rule tiiiit all words persuading to an overt act of treason, are treason whether the act bo cumrait- ted or no. It is sufficient if the substance of the words whether wraen or spoken be set forth, if the same be laid as overt acts for the wi le ddiiil of the evidence need in no case be set forth, it is sufficient that the c ;irge lie reduced to a reasonable certainty so that the Defendant may know what he is called on to answer. If the treasonable character of the words or writings snnu mani- fest it is for the defendant to explain (if he can and will) that the (tent was different from that stated or that words seemingly treasonabh ►• have been used in such a conjunction with other words as would explain iln uicaning and render it innocent, but he is not necessarily called on to do so, it is for the crown to prove its case. As for example a portion of a book might have been so selec- ted that taken apart it would indeed seem treasonable but the argument being followed to the end of the book the intent of the author would appear on the whole other than traitorous. So words may be laid in the indictment to ex- plain acts, as an act seemingly innocent in itself may be shewn to be traitorous by words used by the parly ut the time of the doing of it. Any number of overt acts may he set forth, but if one be proved it will maintain the indictment. The time at whicli the overt act is alleged to have been committed shall be at any 54 time Avithiu throo years within the fintling of the indiclinoiit. As to place, the act stfitcd ill the indiotmcut imist be proved to have l)een committed within thf> venue of tiie indictment bnt other acts of tlie treason tending to \<\\)ve the overt act stat(Hl tiion^h I ommitted ontuf the venne maybe in evidence. Whe- ther the overt act laid is a snffieient overt act of the treason laid in tin? indict- ment is matter of law for the eonrt to determine. It is to l)e observed that no overt act ammintinc' to a distinct independent char^ic is to be admitted m evi- deii('(> if it be not laid in the indictment nnless it tend directly to prove the ova-rt act hiid in the indictment. The ])roof of the treasonable intfnlof the act lies npon the Crown's part, Ifa conspiracy be tlie overt act laid, the acts of any cons[urators may be i^iven in evidence aiijainst all of them. Jn this case it is first necessary to prove the conspiracy ne.\t to connect the defendant with it, and then if any act done by another is to be jmn'cd against the defendant, you mnst shew tliat such person was a member of the same conspiracy and the fict was done in furtherance of the common design. Writinirs are not an overt net unless published, yet if they tend to prove an overt act laid they may be given in evidence though never published, and though not found till after the ap[)rehcnsion of the defendant. Imprisoning or seeking to imprison is a direct compassing lor it is said the " the prisons of princes are not far from their graves" and the same maxim seems to apply to every duress or force ]nit upon the sovereign with intent to restrain her person or coerce her intentions, make lier put away her ministers or the like but not to a mere assaulter common as- sault and battery, which at common law seemed not to change its character and has been made pimishable liy seven years transportation, or inipriso'iment with whip|)ing at the option of the court in the present reign. The prisoner is en- titled to have a copy of the indictment with a list of the witnesses anc'. of the jury with their names, occujjations and places of abode delivered to him ten full days befiire the trial. Likewise his peremptory challenges are Sf). If the delivery of the lists and copy has not been truly made accordmg to law tlie pri- soner may object hforc 2)/c(idins ni\d if th(3 objection be found well grounded the trial shall be postponed and a proper delivery made. Levying war against the Queen is of two kinds. The one direct the other constructive. Of the first we have already treated as a compassing of the Queen's death and every act of ho.stility and in some cases acts of omission such as not defending a post against rebels, allowing a castle or fort which ought to have been defended to fiiU into the power of rebels on the like are overt acts of this kind of treason which maybe laid either substantively as a specific treason or as a compassing; l>ut in every case of treason the overt act or acts stated in the indictment must be proved and it is to this (or these) and not to the principal treason that the evidence must apply for it is to the overt ad or at is that the prisoner must apply his defence. Constructive treason is v> ar levp I for tlie purpose of etrecting inno- vations of a public and general nature by armed force as for the purpose of attempting by force to obtain the repeal of a statute or to obtain the redress of any public grievance real or pretended as an insurrection ibr the purpose of throwing down all inclosures, pulling down all bawdy houses, opening all pri- sons, expelling all strangers, enhancing the price of wages generally or the like. But if the objects be ie.ss general than these it will not amount to treason h(;wever criminal the conduct of the jiarties engaging in the riot or other dis- turbance may be. So in this kind of constructive treason, there must be a war actually levied to complete the offence, a mere conspi cy to do so will not be treason but a misdemeanor only ; and only those persons who aid or assist in doing the acts which form the constructive treason are traitors, the others are rioters only. This is different from the law in cases of a direct war against the Queen, in that case all who assemble and march with the rebels are guilty of treason whether they knew the purpose of their assembly or no and whether they aided in other acts or no. Constructive levying of war is not a 55 compassing of the Queen's doatli and tlio indictment should ohiirgo the the defendant (or defendants) with it us u substantive, speeilic and distinct high treason. The niini])er of traitors asscmiilcd is not mute iul to tlio i>f[!juco of levying war eitlior directly or constructively, nor is tli(« actual iightuig necessary, enlisting and marching will bo suliicicnt. Alter an action the war is said to h" helium percusmm, before it lir/lion Icvatuni,, this distinction is not necessary to niakr, out the treason, but iliere must be an insurrection for general ol)jects accompanied by force, in fiict an actual levying. Jn treason by adhering to the Queen's enemies, the proof must be as in other cases by an overt act. The Gazette containing tiie {irocianiation may be given in evidence to prove the persons adhered to were enemies, or public notoriety Avill be sufficient evidence of it, and whether they are enemies or not is a (piestion of fact fiir the jury. An actual adherence must be proved in this as well as in levying war, a mere conspiracy to commit the treason will not support: the counter indictment. .Such conspiracy might be laid as compassing of the Queen's death, iiud under tliat, description high treason. But if you can prove such a consjiiracy and conneet the defendant with it, and provi; an act done by any one of the conspirators in furtherance of the general design, if it tend to prove any of tiie overt acts laid in the indictment, you may give it in evidrnce, for the act of one is the act of all. The punishment of high treason is that the traitor be drawn or dragged to the place of execution, (a sledge or hurdle is allowed by custom for the sake of humanity) to be hanged, but not until dead, to have his privates cut otf and burned before liis fiice, and be disembowelled while yet living, (which is still the sentence though modern enlightenment forbids its execution,) and In have his head (Uit olf and his body divided into quarters to be at the Queen's disposal, and his blood is cor- rupted so that none ean inherit J'rom him, and all that he has is lust, by him to the Crown. These severities are excused or accounted for by several reasons. As that pride being the parent or forerunner of rebellion, the traitor is dragged through the mud that his pride may be brought low, that his body is divided in four to prove that this treason is scattered to the four winds, ^i\, ice. All these par- ticulars or any of them may be remitted, and despite the acknowledged [irin- ciple that the (iueen cannot alter the death prescribed by the law, yet Ininijing to death has been inflicted without complaint or inconvenience,' andl'ocis and some other great persons have had all remitted save beheading. Formerly women were drawn and burnt fur treason ; but the bi. ruing of women in all cases has been done away with, and it is not likely that any woman will sutler capital execution for this crime. T will conclude by remarking that in treason generally it is a good defence that the accused was compelled to join and continue with the rebels /)/y> tiiiiorc mortix,Vi\\i\ it is probable that CJmpn.lsioii would be a good defence for any treason short of killing or attempting to kill the Queen, or even killing any loyal subject which T except as the fear f)f deiith will not excuse the breach of the duty of a neighbor in killing an innocent person still less could itexcusethe breach of the duty ofa subject in killing his rrince,orthe jierpretation ofa murder aggravated liytreason. Where words of inducement are laid asnn act proof of the act intended may be given in evidence fully to explain the words, in adhering to the(Jueeirs enemies, the sendingofa:iy intelligence likely to prove usefid to them be it what it may is treason, .luiniug the enemy's forces isadhering to them thcaigh no act of hostility be dune, and so is sending them arms or munitions, though they never reach them. Joining the enemy against the Queen's allies is treason to the Queen. The Queen's enemies arc necessarily foreigners, the subj(-cts of a state at war with Her Alajesty. * This of course is technically meant, as I presume most men lind lipnging incon- venient. 56 The mere issun ol' lot'crs of marque docs not sufiico to create this state of war.wliuli iii;iy iieveillioless exist without hnving been solemnly proclaimed. Pirates and roltcls arc not intended by tlio words the Queen's enemies. liut invitiiifi; lorei'^iicrs to invade the realm is treason as a compassing of the Queen's death, wluitiic'r Ihoy be enemies or no, and if enemies it is also a suffi- cient aillicri'iic-i' to them. Misprision of treason has been treated under its proper title.' pr^-:munire. Pnemunhc, so called from some words used in the ancient writ for its punisluuent, is the highest of misdemeanors and oceu|)ics to other misde- meanors the position treason occupies to all felonies. It is a crime which lies peculiarly li)r olfenccs against the independence of the English Crown, and many oliiMices are T^/Y/'wiMWi/c which cannot be committed in Canada or are now wholly out ot date and unlikely ever to be jiroseciited for any where. It is however worth noticing that a discourse which unadvisedly or loose.ly uttered is sedition, openly and advisedly spoken may ha prcemunirc. Such as denying the Queen's title in a set formal public speech, rinushinent, perpetual imprisonment and the convict attainted. Sedition. — This crime is a misdemeanor. Words and writing not amoimt- ing to overt acts of treason but exceeding the temperate, decent and respectful discussion of ])iiblic measures, and being calculated to lessen the Queen in the esteem of li'^r subjects, or weaken the Ciovernment, or cause jealousies between herself and her people, are seditions. As for Seditious Writings, see Libel. Ciirsiiig the Queen, wishing her ill, and denying her right to the throne in common unadvised discourse, all these sorts of speech are sedition, and punish- able by line and imprisonment. To support an indictment, the words or such of them as will amoimt to sedition must be set out with certainty. Any variance in substance will be fatal. For tumults and the like connected with politics they fall under the same head as the like ollences disconnected from politics and so of conspiracy, com- binations, nnlawful oaths and assemblies, assuming disguises and the like, if not attended with circumstances amounting to treason, they are to be con- sidered under their proper heads as their possible connection with politics, (if not traitorous,) will not materially affect their nature or the incidents belonging to their prosecution ; however it might influence a judge, as to the amount of punishment to be dealt out to their perpetrators. Trees. See Hoots. Unnatural Offences. — In these crimes as in rape penetration is sufficient (o complete the capital felony, and there is not a doubt that the slightest pene- tration will surtice. Assault with intent, &:c., will be prosecuted and punished in the same way as in other cases of felonious crime. Attempts, tlcc, will he indictable. There is no need to pursue this subject further than to observe that it appears a woman may be a subject of it, that penetration by the mouth of a child is an assault only, that the patient if over fourteen and consenting is a capital felon equally with the agent, both are principals, that a bird does not appear to be a subject, and where tlie patient is not known there can be no conviction for assault. Further where violence is used, killing the unnatural ravisher is justifiable. * See Con soli 1 1 at ed Statutes, Cap. 102, ss. 11 and 55 ; Cap. 90,8.1. Imperial Statutes, 25 Eil. 3, e. 2,-35 H. 8, c. 2,-5 & 6 Ed. 6, c. II,— 1 & 2 Pii. & M. c. 10,— 7 VV. 3, c. 3. I ihiiik I may palely attirm these Statutes are tho living law of Canada in all cases of High Treason, and under them should that crime be tried. 57 iperial 10,- Lnada in UNi.AWFur, Oaths. See Oaths. Uttering. See Coin and Fcrgery. Vegetables. See Routs. Wife. — A wife may harbor her liusband in treason and felony. She cannot be a witness for him nor against him, except fur a wrong to hcrselC. In conspiracy she is no witness fur or against his associates, and the sumo seems to apply generally to conjoint otTences where the defendants are prusecuted collectively. Wounding — Stubbing, Cutting and Wounding with intent to murder, to maim, to disfigure, disable, or to do some grievous bodily harm, or resist, or prevent a lawful a[))ireheusiun, or detention or to rob with an instrument is felony by statute, but the wounding may be prosecuted as a misdemeanor under a particular statute. If prosecuted as an assault, assault and battery, or aggra- vated assault, the common law misdemeanor would merge into lelony on proof of a wounding, and should be prosecuted as such. Under a late Act a wounding thougli serious may be tried summarily according to certain pro- visions laid down in the Act itself, st-f Consolidated Statutes, cup. 105. A felon- ious wound must be a complete severance of the continuity of the skin, it mat- ters not by what descri))tion of weapon, except as evidence of the prisoners intent. Cutting and stabbing must mciiu Incised wounds, " stab," imports a puncture with a pointed weapon, the word "cut," an incision with an edged weapon, but the word "wound," includes these and other injuries also ; provided the outer and inner skin be entirely penetrated, severed or broken. If this be done with a weajion of war or slaughter, the intent may be pre- sumed but if by anotlier kind the mode of using it or some other circumslance will be needed to shew the intent. The fact of stabbing or cutting will sliew an intent tu do grievous bodily harm, and in general a Avonnd with an instrument calculated to intlict great bodily injury may be presumed to have been given with the intent to do some grievous bodily harm oven if the wound be not dangerous or severe. As to the other intents they arc not so easily i)rovcd and though the locality of the wound is a strong jire- sumption of the intent it may be rebutted by evidence and no kind ur amount of injury even the completion of that supposed to l)e the intent laid iftiu^, intent be different will sujiport the indictment. As killiug may not be murder but manslaughter from the absence of the intent to mur- der in the fatal assault so vn actual maiming if no maim were meant will not support an indictment for intent to maim. The locality of the wound is important but not conclusive as to the intent and so conversely a wounding in other parts of the body may suffice to support the intent laid as should one try- ing to disfigure miss the livce and wound the hand of the prosecutor who is shielding his face with his hand it is a wounding with intent to disfigure. A maim or mayhem is such a hurt as makes a man less able to defend him- self infighting or annoy his adversary as to cut off a limb or a linger to put out an eye or to strike out a foretooth. Mayhem at common law or maiming which is a misdemeanor may be done without a weapon and any assault ending in mayhem is mayhem at common law, unlawful violence being a sufficient in- tent. Under the statute treating of wounds and grievous injuries to the person by indictment as misdemeanors the use of a weapon is not essential, and it is the usage to employ that statute in place of the common law for it may send the prisoner to Kingston which the other cannot, and is otherwise convenient. A disfiguring is such an act as cutting off or slitting a man's nose, ears or lips or otherwise destroying the appearance of his face. Cutting out a man's tongue is 5 58 felony by a very ancient Statute and castrating? him is a maiming or mayhem formerly felony death, by common law, but at present not capital. Disabling is a word applied iu the law to such an injury as inflicts a per- manent not mere tcmiwrary disability. It may be taken for permanent hurt which may or may not be a mayhem a grievous botlily harm of a permanent cliaracter. A man may be acquitted for any of tliese ft lonic-s and foinul guilty of an assault. Should there be two intents one may be included in the other as to murder by means necessarily including a disfignrement, resist process by attempting to murder the officer to his grievous bodily hurt and iu such cases the indictment moy allege either intent, but one of the above intents must be proved as laid in the bill of indictment or it will not sustain a conviction lor the iMony. There are other aggravated outrages against the person and such tittempts against life, poisoning victual, shooting Sec, for which see the Statutes.* An assault with intent to murder is a misdemeanor at common law and may be so prosecuted where the statutes fail to reach the case. Note. — In the foregoing work the writer has penerally given a siiort condensed sketch of the maxims of the Common Law as stated by the best known essayi-sf?*, and simply referred the reader to the Imperial and Provincial Statutes on the subject without much regard as to whether the latter concur with, modify or control the operation of the' principles of the Common Law. It would be therefore well to treat this short work to some extent as a giiide to the Consolidated Statutes and use the two together. • See Consolidated Statutes, Cap. 91, fs. 5, 6, 7, 8,— Idem, Cap. 105, ss. 1, 15. INDEX. ' .^rf-X^ •>' ■ Paoc. Abduction ft Abortion 5 Abusing 6 Accomplice 6 Accusing 6 Appreuticen 6 Apothecaries 6 Attorney 7 Approver 7 Assault 7 AtiVay. See Riot. A;,'«Mit 9 Arrest 9 Arson 9 Anns. See Riot. Assembly. See Riot. AttemptH to commit crimes 9 Bail 10 Barrister. See Attorney. Barratry. See Maintenance. Battery 10 Baililt's, assault on 12 Bawdy-House. See Nuisance. Bigamy .. 12 Blasphemy and Profaneness 13 Breach of Prison. See Escape. Breach of Trust. See Larceny. Bribery at Elections 13 Bribery of Public OHicers. See Mispri- sion. Burglary. See Larceny. Challenge to Fight 13 Coin 14 Compromise 14 Compounding Felony 14 Councealing the birth of a Child 15 Conspiracy 16 Cruelty to Animals 15 Cutting and Stabbing, Maiming- 15 Damaging or destroying Properly 15 Dead Bodies .• 15 Decoying Children 16 Demandmg Money with menace.s or force. See Larceny. Dog Stealing 16 Disobeying the orders of a Magistrate. See Mi.sprision. Dissenting Chapel. See Riot. Disturbing Public Worship 16 Disorderly House. See Nuisance. Drowning. See Murder. Drunkenness 16 Duel 16 Dying Declaration. See Murder. Dwelling House. See Arson — Larceny — Burglary — Riot. Embezzlement. See Laceuy. VAGR. Kmhrncery 16 Enemy. See Treason. Enarossing, Forestalling and Regrating. 16 Engros.sing 16 Regralinj^ 16 Forostulliiig 17 Kntry. See Forcible entry and detainer. Eseape 17 Breach of Prison 18 Kes(!ue 18 False Imprisonment 18 I'ulse Pretences. See Larceny. False Scales, Weights and Measures.. 19 Fences 19 Fish, Fishery, Fishpond 19 Floodgates 19 Forcihiu Entry and Detainer 19 Foreign Coin 20 Forgery. See Cheating. Fraud. See Cheating. Fruit. See Cheating, and Larceny. . Gaming 20 (Jarning House. See Nuisance. Highways. See Nuisance. Homieicfe 20 Manslaughter 21 Murder 21 Killing by lighting 22 Homicide unintentionally committed... 23 hlle and Disorderly Persons 26 Impounding Cattle 26 Imprisonment. See Fdlse Imprisonment. Indecency. See Nuisance. Infanticide. See Murder. Infants 27 Inhabitants. See Nuisance. Innkeeper 27 Iron. See Larceny. .Jurors. See Embracery, Justices. See Misprision. Juvenile Otfenders. See Larceny. Keeper of a Gaol or House of Correction. 27 Killing of Fish or Game, &c 27 Landing uncustomed Goods 27 Larceny, (simple) 27 Compound Larcenies. 33 Larceny from the Person 33 Stealing from a Vessel. 33 Stealing from a Dock 33 Stealing from a Wreck 34 Stealing in a dwelling house 34 Stealing in a dwelling house, &c 34 Breaking and entering a building and stealing therein 34 Embezzlement 35 Obtaining Money under false pre- tences 35 ii I N D E X I'AiiK. Cheating 36 Forpery 87 Rogues aiul Vagabonds 37 Receiving stolon (jooiIh 38 Burglary 38 Sacrilcgo 39 Robbory 39 Extorting or gaining money 41 Piracy 41 Letters. Soo Threats. Lewdness. See Nuisance. Libel 42 Lotteries 4.'J LunaticM 43 Mnohinery 44 Mails. See Po.st Office. Maiming Cattle 44 Muiminy; or Miiyhem. See Wounding. Maintenance 44 Champerty 44 Barratry 44 Eaves Droppers 44 Malicious injuries to Property 44 Manslau<:hter. See Homicide. Manufactures 44 Menaces. See Threats. Ministerial Officers. See Misprision. Misprision of Treason and of Ki-luny, &,c. 45 Misprision of Office 45 Murder. See Homicide. « Navigable lliver. See Larceny. Newspaper.s 47 Nuisance 47 Oaths 48 Orchards 48 Perjury 48 Subornation of Perjury 48 Personating a Constable, &n 49 Petty Larceny. See Larceny. Petty Treason. See Murder. Piracy. See page 39. Poison 49 PiOK. Pretences. See False Pretences. Principal and Accessory. See Accom- plice. Provocation. See Challenge — Assault — Homicide. Quay. See Dock. Hallways 49 Rape 49 Receiving stolen (ioods. See pi.'ge 38. Regratting. fee Engrossing. Rescue. See Escape. Riots, &c fiO River, Hank or Wall 62 Robbery. See page 39. Roots, plants, trees, fruits, vegetables, &o 52 Road. See Nuisance. Sacrilege. See page 39. Seal. See Forgery. Security. See Larceny. Sedition. See Treason. Sending Explosive Substances 62 >hip 62 Shooting 52 Shop, ."ce Larceny. Shrub. See Roots. Stabbing. See Wounding. Starving. See Murder. Stealing. See Larceny. Steam Kngine. See Railways. Subornation of Perjury. See Perjury. Threats 62 Treason 52 Pra-rnunire .... 56 Sedition 66 Trees. See Roots. Unnatural Offences 56 Unlawful Oaths. See Oaths. Utterint?. See Coin, and Forgery. Vegetables. See Roots. Wife 67 Wounding 57 PiOI. tn- l— • • • • 8. 49 49 » • • fiO 62 les, • • • 52 . .62 ... 52 ... 52 .... 62 ... 52 ....56 .... 66 .... 56 ,. 67 .. 57