the legal duties tending to the preservation of life, the neglect of which is criminal. Section 161, (corresponding with our article 211, ante), is a re-enactment of 24 and 25 Vict., c. 100, s. 26 which was itself a re-enactment of 14 and 15 Vict., c. 11. That statute was passed in the excitement consequent on the case of R. v. Sloane, (1) and was framed so as to embrace all cases where there was a contract to supply a servant of whatever age with food, clothing, and lodging. It has been thought better to limit it to servants and apprentices under the age of sixteen, but it is right to point out that this is not the existing law. Section 160, (corresponding with our article 210), puts the head of a family under the same criminal responsibility towards members of his household under the age of sixteen as a master is to a servant of the same age."

Under article 215, post, the punishment for neglecting or refusing to perform any of the duties specified and defined in articles 209, 210, and 211 is three years imprisonment, unless the neglect or refusal amounts to culpable homicide; and then, of course, it would be punishable as such.

Articles 210 and 211 make several changes in the old law as contained in the R. S. C. chap. 162 (now repealed), as will be seen by section 19, of that act, which reads as follows:

"Every one who, being legally liable, either as a husband, parent, guardian, or committee, master or mistress, nurse or otherwise, to provide for any person as wife, child, ward, lunatic or idiot, apprentice or servant, infant or otherwise, necessary food, clothing and lodging, wilfully and without lawful excuse, refuses or neglects to provide the same, or unlawfully or maliciously does, or causes to be done, any bodily harm to any such apprentice or servant, so that the life of such apprentice or servant is endangered, or the health of such apprentice or servant has been, or is likely to be, permanently injured, is guilty of a misdemeanor, and liable to three years' imprisonment."

See article 217, post, as to causing bodily harm to an apprentice or servant by

a master.

212. Duty of persons doing dangerous acts, — Every one who undertakes (except in case of necessity) to administer surgical or medical treatment, or to do any other lawful act the doing of which is or may be dangerous to life, is under a legal duty to have and to use reasonable knowledge, skill and care in doing any such act, and is criminally responsible for omitting, without lawful excuse, to discharge that duty if death is caused by such omission.

See article 57, post, pp. 34, 35.

See also comments upon necessity, ante, p. 13.

213. Duty of persons in charge of dangerous things.-Every one who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes or maintains anything whatever which, in the absence of precaution or care, may endanger human life, is under a legal duty to take reasonable precautions against, and use reasonable care to avoid, such danger, and is criminally responsible for the consequences of omitting, without lawful excuse, to perform such duty.

214. Duty to avoid omissions dangerous to life.-Every one who undertakes to do any act, the omission to do which is or may be dangerous to life, is under a legal duty to do that act, and is crimi

(1) Annual Register vol. 92, p. 144.

nally responsible for the consequences of omitting, without lawful excuse, to perform that duty.

215. Neglecting duty to provide necessaries.—Every one is guilty of an indictable offence and liable to three years' imprisonment who, being bound to perform any duty specified in sections two hundred and nine, two hundred and ten and two hundred and eleven without lawful excuse neglects or refuses to do so; unless the offence amounts to culpable homicide. As amended by 56 V., c. 32.)

It will be readily seen, that in a prosecution under this article for neglecting or refusing to perform any of the duties specified in article 210, it must be alleged in the indictment and established in evidence that the neglect or refusal was without lawful excuse and that thereby the life of the person neglected or omitted to be provided with necessaries is endangered or his or her health permanently injured or likely to be permanently injured.

216. Neglecting children under two years old.-Every one is guilty of an indictable offence and liable to three years' imprisonment who unlawfully abandons or exposes any child under the age of two years, whereby its life is endangered, or its health is permanently injured.

2. The words "abandon" and expose" include a wilful omission to take charge of the child on the part of a person legally bound to do so, and any mode of dealing with it calculated to leave it exposed to risk without protection. R.S.C., c. 162, s, 20.

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The old law (R.S.C. c. 162, s. 20) was as follows:

"Every one who unlawfully abandons or exposes any child, being under the age of two years, whereby the life of such child is endangered, or the health of such child has been, or is likely to be, permanently injured, is guilty of a misdemeanor, and liable to three years' imprisonment."

Section 27 of the Imperial Statute (24 and 25 Vict., c. 100) is as follows: "Whosoever shall unlawfully abandon or expose any child, being under the age of two years, whereby the life of such child shall be endangered, or the health of such child shall have been or likely to be permanently injured, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude for the term of three years.”

In an English case, the prisoners were charged by an indictment framed under this section with having abandoned and exposed a child under two years of age, whereby its life was endangered and the following facts were established against them.

One of the defendants was the mother of a weakly bastard child, which,when it was about five weeks old,-both prisoners put in a hamper, at S., the child, when so put in the hamper, being wrapped up in a shawl and being then packed in the hamper with shavings and cotton wool. The mother thentook the hamper containing the child from S., to the booking office of the railway station at M. a distance of about four miles), and there left it, having paid the carriage of the hamper to G. The hamper was addressed to the lodging of the child's father at G., and he had told the mother, previous to the child's birth,that if she sent it to him he would keep it. The mother told the railway clerk to be careful of the hamper and to send it by the next train which was due to leave the station at M., in ten minutes from the time of her depositing it there. Upon the address were the words, "with care: to be delivered immediately." The hamper was duly sent by train and delivered at its address in G., in a little less than an hour from its being despatched from M. On the hamper being opened the child was alive, and lived for three weeks afterwards, when it died from causes not attributable

to the conduct of either of the prisoners. Upon these facts it was held that there was an abandonment and exposure endangering the life of the child : and the prisoners were found guilty. (1)

In another case, a woman, who was living apart from her husband, and who had the custody of their child, brought it and left it outside the father's door, telling him she had done so. The father knowingly allowed the child to remain outside his door from 7 p. m., till 1 a. m., when it was found, cold and stiff, by a constable who removed it. It was held that, although the father had not the actual custody and possession of the child yet as he was legally bound to provide for it, his allowing it to remain where he did was an abandonment and exposure by him whereby the child's life was endangered within the meaning of 24-25 V., c. 100, s. 27. (2)

217. Causing bodily harm to apprentices or servants.-Every one is guilty of an indictable offence and liable to three years' imprisonment who, being legally liable as master or mistress to provide for any apprentice or servant, unlawfully does, or causes to be done, any bodily harm to any such apprentice or servant so that the life of such apprentice or servant is endangered or the health of such apprentice or servant has been, or is likely to be, permanently injured. R.S.C., c 62, s. 19.

The reference under this article is evidently a clerical error. It should be R. S. C. c. 162.

The corresponding Imperial enactment on this subject is the 24 and 25 Vic., c. 100, sec. 26, which is as follows:

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Who soever being legally liable either as master or mistress to provide for any apprentice or servant necessary food clothing or lodging, shall wilfully and without lawful excuse refuse or neglect to provide the same, or shall unlawfully and maliciously do or cause to be done any bodily harm to any such apprentice or servant, so that the life of such apprentice or servant shall be endangered, or the health of such apprentice or servant shall have been or shall be likely to be permanently injured, shall be guilty of a misdemeanor, and being convicted thereof, shall be liable to be kept in penal servitude for the term of three years."

Upon this clause Archbold makes the following remarks: "Whether it be "necessary to prove that, by such refusal or neglect to provide, the prosecutor's

life was endangered or his health was or was likely to be permanently injured, depends upon the construction which is to be put upon the statute. If the "words so that the life of such person shall be endangered,' etc., apply to all

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the preceding matter, such proof will be necessary; if only to the branch of "the section which relates to the actual doing of bodily harm to the apprentice "or servant, such proof will be unnecessary. Until there has been some decision "on the subject it will be safer to introduce, into the indictment, the allegation, "so that the life of the said was thereby endangered.' "and to be prepared with evidence to sustain it. It would seem indeed to be "the better opinion that the words so that the life of such person shall be

endangered, etc,' override all the preceding matter, otherwise a mere single "wilful refusal to provide a dinner would be within the clause. Upon an indict"ment for unlawfully and maliciously assaulting an apprentice or servant it is "clear that such allegation and proof are necessary."

It will be observed that the uncertainty which Archbold seems to find in the English enactment arises from the fact of two offences, neglecting to provide necessaries and doing bodily harm to an apprentice or servant being included in one section. In the present code this possible uncertainly has been avoided,

(1) R. v Falkingham, L. R., 1 C. C. R., 222: 39 L. J. (M. C.) 47.

(2) R., v. White, L, R., 1 C C. R. 311; 40 L. J., (M C.) 134; Arch. Cr. Pl. and Ev. 21 Ed., pp. 792, 793.

by separating and dealing with the two offences in different articles, the offence or offences of a parent or a master neglecting the duties imposed upon them by articles 210 and 211 respectively being dealt with under article 215, ante, and the offence of a master doing bodily harm to an apprentice or servant being dealt with by the above article 217. So that, with us, whether the charge against the master be for neglecting to provide necessaries to his apprentice or for doing such apprentice or servant bodily harm, there can be no doubt that the indictment must allege, and it must be proved that the life of the apprentice is endangered, or that his or her health has been, or is, or is likely to be permanently injured.

PART XVII.

HOMICIDE.

218. Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.

Upon this part of the law as contained in the English Draft Code the Royal Commissioners report as follows:

"The Draft Code deals next with murder, manslaughter, and some other offences to which we will refer specifically.

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Many of the doctrines of the common law bearing upon this subject relate equally to murder and manslaughter. Both the Draft Code and the Bill accordingly deal with homicide generically, and ascertain the cases in which it is culpable, before dealing specifically with murder and manslaughter. The Draft Code preserves the rule, of the common law, that to render the homicide culpable, death must take place within a year and a day of the injury. It was thought desirable to fix some limit, and no sufficient reason occurred to us for departing from the ancient rule.

"Having defined culpable homicide the Draft Code proceeds to the problem of defining murder and manslaughter.

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"The common law definition of murder is unlawfully killing with malice aforethought'; and manslaughter may, in effect, be defined as unlawful killing without malice aforethought. The objection to these definitions is that the expression malice aforethought' is misleading. This expression, taken in a popular sense, would be understood to mean that in order that homicide may be murder the act must be premeditated to a greater or less extent, the jury having in each case to determine whether such a degree of premeditation existed as deserved the name.

"This definition if so understood would be obviously too narrow, as, without what would commonly be called premeditation, homicide might be committed which would involve public danger and moral guilt in the highest possible degree. Of course it can be pointed out that every intentional act may be said to be done aforethought, for the intention must precede the action. But even with this explanation the expression is calculated to mislead any one but a trained lawyer.

"The inaccuracy of the definition is still more apparent when we find it laid down that a person may be guilty of murder who had no intention to kill or injure the deceased or any other person, but only to commit some other felony, and the injury to the individual was a pure accident. This conclusion was arrived at by the doctrine of constructive or implied malice. In this case, as in the case of other legal fictions it is difficult to say how far the doctrine extended. We do not propose on the present occasion to enter upon a discussion of this subject. It was carefully considered before a committee of the

House of Commons sitting on a Bill for the definition of homicide, introduced by the late Mr. Russell Gurney, in 1874. It was also considered by the Commission on Capital Punishments, which reported in 1866. Each of these bodies reported that the present condition of the law was unsatisfactory, though neither arrived at a definition which was considered satisfactory.

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The present law may, we think, be stated with sufficient exactness for our present purpose somewhat as follows:-Murder is culpable homicide by any act done with malice aforethought. Malice aforethought is a common name for all the following states of mind :

(a.) An intent, -preceding the act,-to kill or to do serious bodily injury to the person killed or to any other person:

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(b.) Knowledge that the act done is likely to produce such consequences, whether coupled with an intention to produce them or not:

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(c.) An intent to commit any felony;

(d.) An intent to resist an officer of justice in the execution of his duty. "Whether (c) is too broadly stated or not is a question open to doubt, but Sir Michael Foster, perhaps the highest authority on the subject says (p. 258). A. shooteth at the poultry of B., and by accident killeth a man. intention was to steal the poultry, which must be collected from the circumstances, it will be a murder, by reason of that felonious intent: but if it was done wantonly and without that intention, it will be barely manslaughter."

If his

It seems to us that the law upon this subject ought to be freed from the element of fiction introduced into it by the expression malice aforethought,' although the principle that murder may, under certain circumstances be committed, in the absence of an actual intention to cause death, ought to be maintained. If a person intends to kill and does kill another, or if, without absolutely intending to kill, he voluntarily inflicts any bodily injury known to be likely to cause death, being reckless whether death ensues or not, he ought in our opinion to be considered a murderer, if death ensues.

"For practical purposes we can make no distinction between a man who shoots another through the head expressly meaning to kill him, a man who strikes another a violent blow with a sword, careless whether he dies of it or not, and a man who, intending for some object of his own, to stop the passage of a railway train, contrives an explosion of gunpowder or dynamite under the engine, hoping indeed that death may not be caused, but determined to effect his purpose whether it is so caused or not.

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This is the general object kept in view both in the Draft Code and in the Bill, hut there is some difference in the extent to which they go. There is no difference as to the cases in which the death of the person killed or of some other person is intended. The Bill included in the definition of murder all cases in which the offender intended to cause, or knew that he probably would cause 'grievous bodily harm to any person. The Draft Code includes all such cases, substituting the expression bodily injury known to the offender to be likely to cause death' for grievous bodily harm'; which to some extent narrows the definition given in the Bill. On the other hand the Draft Code includes all cases in which death is caused by the infliction of grievous bodily injury' for the purpose of facilitating the commission of certain heinous offences. All these cases would fall within the definition of murder given in the Bill, according to which it is murder to kill by the intentional infliction of grievous · bodily harm irrespectively of the purpose for which it is used. Lastly, it is provided (by the Draft Code) that killing by the administration of stupefying things or by wilfully stopping the breath for the purpose, in either case, of committing any of the specified offences, (1) shall be murder whether the offender knows or not that death is likely to ensue. According to the provisions of

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(1) The specified offences are the same as those specified, in the same connection, by the present code (see article 227, post), namely, Treason, Treasonable offences, Assaults on the Queen, Inciting to Mutiny, Piracy, Piratical Acts, Escapes, Rescues, Resisting lawful Apprehension, Murder, Rape, Forcible Abduction, Robbery, Burglary, Arson.