might obtain connection with her; and it was held that this was an administering with intent to injure, aggrieve and annoy" her.

In another case the prisoner was indicted for having caused to be taken a certain noxious thing, namely, half an ounce of oil of juniper, with intent to procure miscarriage, and the evidence was that oil of juniper in considerably less qantities than half an ounce might be taken without any ill effect, but that half an ounce produces ill effects, and to a pregnant woman is dangerous. Held, that the half ounce of juniper oil was a "noxious thing." (1)

247. Causing bodily injuries by explosives.-Every one is guilty of an indictable offence and liable to imprisonment for life who unlawfully and by the explosion of any explosive substance, burns, maims, disfigures, disables or does any grievous bodily harm to any person. R.S.C., c. 162, s. 21.

248. Attempt to cause bodily injuries by explosives.-Every one is guilty of an indictable offence and liable, in case (a) to imprisonment for life and in case (b.) to fourteen years' imprisonment, who unlawfully—

(a.) with intent to burn, maim, disfigure or disable any person, or to do some grievous bodily harm to any person, whether any bodily harm is effected or not:—

(i) causes any explosive substance to explode;

(ii) sends or delivers to, or causes to be taken or received by, any person any explosive substance, or any other dangerous or noxious thing;

(iii) puts or lays at any place, or casts or throws at or upon, or otherwise applies to, any person any corrosive fluid, or any destructive or explosive substance; or

(b.) places or throws in, into, upon, against or near any building, ship or vessel any explosive substance, with intent to do any bodily injury to any person, whether or not any explosion takes place and whether or not any bodily injury is effected. R.S.C., c. 162, ss. 22

and 23.

- 66

Article 3 (i), ante, defines explosive substance as being and including; any materials for making an explosive substance; also any apparatus, machine, implement, or materials used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; and also any part of any such apparatus, machine or implement."

sets or

249. Setting Spring Guns and Man Traps.-Every one is guilty of an indictable offence and liable to five years' imprisonment who places, or causes to be set or placed, any spring-gun, mantrap, or other engine calculated to destroy human life, or inflict grievous bodily harm, with the intent that the same or whereby the same may destroy, or inflict grievous bodily harm upon, any trespasser or other person coming in contact therewith.

(1) R. v. Cramp, 5 Q. B. D. 307; 49 L. J. (M. C.) 44.

2. Every one who knowingly and wilfully permits any such spring-gun, man-trap or other engine which has been set or placed by some other person, in any place which is in, or afterwards comes into his possession or occupation, to continue so set or placed shall be deemed to have set or placed such gun, trap or engine with such intent as aforesaid.

3. This section does not extend to any gin or trap usually set or placed with the intent of destroying vermin or noxious animals. R.S.C., c. 162, s. 24.

This article applies to instruments set with an intention to destroy human life or to inflict grievous bodily harm upon human beings, or whereby grievous bodily harm is actually done to a human being, and therefore it would not apply to dog-spears set by a man in his own land. (1)

250. Intentionally endangering the safety of persons on railways. -Every one is guilty of an indictable offence and liable to imprisonment for life who unlawfully

(a) with intent to injure or to endanger the safety of any person travelling or being upon any railway.

(i.) puts or throws upon or across such railway any wood, stone, or other matter or thing;

(ii) takes up, removes or displaces any rail, railway switch, sleeper or other matter or thing belonging to such railway, or injures or destroys any track, bridge or fence of such railway, or any portion thereof;

(iii) turns, moves or diverts any point or other machinery belonging to such railway;

(iv.) makes or shows, hides or removes any signal or light upon or near to such railway;

(v.) does or causes to be done any other matter or thing with such intent; or

(b.) throws, or causes to fall or strike at, against, into or upon any engine, tender, carriage or truck used and in motion upon any railway any wood, stone or other matter or thing, with intent to injure or endanger the safety of any person being in or upon such engine, tender, carriage or truck, or in or upon any other engine, tender, carriage or truck of any train of which such first mentioned engine, tender, carriage or truck forms part. R.S.C., c. 162, ss. 25 and 26.

As to endangering property by mischief on railways, see article 489, et seq.,post.

251. Negligently endangering the safety of persons on railways. -Every one is guilty of an indictable offence and liable to two years' imprisonment who, by any unlawful act, or by any wilful omission. or neglect of duty, endangers or causes to be endangered the safety of any person conveyed or being in or upon a railway, or aids or assists therein. R.S.C., c. 162, s. 27.

(1) Jordin v. Crump, 8 M. & W. 782; Arch. Cr. Pl. & Ev. 21 Ed. 775.

A passenger railway line constructed and completed under the power conferred by an act of parliament, but not yet begun to be used for the conveyance of passengers, but only for the carriage of materials and workmen was held to be within the English act against mischief on railways. (1)

25o. Negligently causing bodily injury to any person.-Every one is guilty of an indictable offence and liable to two years' imprisonment who, by any unlawful act, or by doing negligently or omitting to do any act which it is his duty to do, causes grievous bodily injury to any other person. R.S.C., c. 162, s. 33.

253. Injuring persons by furious driving. Every one is guilty of an indictable offence and liable to two years' imprisonment who, having the charge of any carriage or vehicle, by wanton or furious driving, or racing or other wilful misconduct, or by wilful neglect, does or causes to be done any bodily harm to any person. R.S.C., c. 162, s. 28.

254. Preventing the saving of a shipwrecked person's life.-Every one is guilty of an indictable offence and liable to seven years' imprisonment who,

(a.) prevents or impedes, or endeavours to prevent or impede any shipwrecked person in his endeavour to save his life; or

(b.) who without reasonable cause prevents, or impedes, or endeavours to prevent or impede, any person in his endeavour to save the life of any shipwrecked person. R.S.C., c. 81, s. 36.

Under article 3 (x) the term " shipwrecked person" includes "any person belonging to, on board of or having quitted any vessel wrecked, stranded, or in distress at any place in Canada."

255. Leaving holes in the ice and excavations, unguarded.—Every one is guilty of an offence and liable, on summary conviction, to a fine or imprisonment with or without hard labour (or both) who

(4.) cuts or makes, or causes to be cut or made, any hole, opening. aperture or place, of sufficient size or area to endanger human life, through the ice on any navigable or other water open to or frequented by the public, and leaves such hole, opening, aperture or place, while it is in a state dangerous to human life, whether the same is frozen over or not, uninclosed by bushes or trees or unguarded by a guard or fence of sufficient height and strength to prevent any person from accidentally riding, driving, walking, skating or falling therein; or

(b) being the owner, manager or superintendent of any abandoned or unused mine or quarry or property upon or in which any excavation has been or is hereafter made, of a sufficient area and

uninclosed by a guard or fence of sufficient height and strength to prevent any person from accidentally riding, driving, walking or

falling thereinto;

(1) R. v. Bradford, Bell, 268; 29 L. J. (M. C.), 171.

or

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

2. Every one whose duty it is to guard such hole, opening, aperture or place is guilty of manslaughter, if any person loses his life by accidentally falling therein while the same is unguarded. R.S.C., c.. 162, ss. 29, 30, 31 and 32.

256. Sending Unseaworthy Ships to Sea.-Every one is guilty of an indictable offence and liable to five years' imprisonment, who sends, or attempts to send, or is a party to sending, a ship registered in Canada to sea, or on a voyage on any of the inland waters of Canada, or on a voyage from any port or place on the inland waters of Canada to any port or place on the inland waters of the United States, or on a voyage from any port or place on the inland waters of the United States to any port or place on the inland waters of Canada, in such unseaworthy state, by reason of overloading, or underloading or improper loading, or by reason of being insufficiently manned, or from any other cause, that the life of any person is likely to be endangered thereby, unless he proves that he used all reasonable means to insure her being sent to sea or on such voyage in a seaworthy state, or that her going to sea or on such voyage in such unseaworthy state was, under the circumstances, reasonable and justifiable. 52 Vict., c. 22, s. 3.

257. Taking Unseaworthy Ships to Sea.-Every one is guilty of an indictable offence and liable to five years' imprisonment who, being the master of a ship registered in Canada knowingly takes such ship to sea, or on a voyage on any of the inland waters of Canada, or on a voyage from any port or place on the inland waters of Canada to any port or place on the inland waters of the United States, or on a voyage from any port or place in the United States to any port or place on the inland waters of Canada, in such unseaworthy state, by reason of overloading or underloading or improper loading, or by reason of being insufficiently manned, or from any other cause, that the life of any person is likely to be endangered thereby, unless he proves that her going to sea or on such voyage in such unseaworthy state was, under the circumstances, reasonable and justifiable. 52 V., c. 22, s. 3.

Article 546, post, provides that no person shall be prosecuted for any offence under the above two sections, 256 and 257, without the consent of the Minister of Marine and Fisheries.

PART XX.

ASSAULTS.

258. Definition.-An assault is the act of intentionally applying force to the person of another, directly or indirectly, or attempting or threatening, by any act or gesture, to apply force to the person of another, if the person making the threat has, or causes the other

to believe, upon reasonable grounds, that he has, present ability to effect his purpose, and in either case, without the consent of the other or with such consent, if it is obtained by fraud.

The following are given as examples of what amounts to an assault, namely; striking at another with a cane, stick or the fist, although the person striking misses his aim; (1) drawing a sword or bayonet, or throwing a bottle or glass with intent to strike; presenting a loaded gun at a man who is within the distance to which the gun will carry; (2) pointing a pitchfork at him when with in reach of it. A person, who presents a firearm, which he knows to be unloaded, at another, who does not know that it is unloaded, and so near that it might produce injury, if it were loaded and went off, commits an assault. (3) (See article 109, (ante p 61), which makes this a substantive offence punishable by $100 fine).

It has been held that a magistrate has no to order the medical examination of the person of a prisoner, and that, therefore, such an examination, pursuant to such an order, of the person of a female, in custody, charged with concealment of birth, and made against her consent, was an assault. (4)

If a medical man unnecessarily strip a female patient naked, under pretence that he cannot otherwise judge of her illness, it is an assault. (5)

If A. advance, in a threatening attitude, towards B., to strike him, and he is stopped just before he is near enough for his blow to take effect, it is an assault (6)

The following are also examples of what under the above article would be an assault, and what, under the common law would amount to a battery, namely; any touching or laying hold (however trifling, of another's body or clothes, in an angry, revengeful, rude, insolent or hostile manner; (7) as for instance, thrusting or pushing him, in anger; holding him by the arm; spitting in his face; jostling him out of the way; pushing another man against him; (8) throwing a squib at him; striking a horse upon which he is riding, whereby he is thrown. (9)

It is a good defence to prove that the alleged assault happened by misadventure. Thus, if a horse run away with his rider and run against a man it would be no assault and the rider would not be punishable, unless he were guilty of some culpable negligence. (10)

It is also a good defence to prove that the alleged assault happened whilst the defendant was engaged in an amicable contest, as, some sport or game which was not unlawful nor dangerous. (11)

It is likewise a good defence to prove that the alleged assault was merely the lawful and moderate correction of a child by its parent, or of a servant by his master, or of a scholar by his teacher. (12)

See ante, p. 144 et seq., as to self-defence, etc.

(1) 2 Roll. Abr. p. 554, pl. 45.

(2) R. v. St. George, 9 C. & P. 483; R. v. Baker, 1 C. & K. 254; Osborn v. Veitch, 1 F. & F. 317; Read v. Coker, 15 C. B. 850; 1 Hawk, c. 62, s. 1.

(3) R. v. St. George, supra.

(4) Agnew v. Jobson, 13 Cox, 625.

(5) R. v. Rosinski, 1 Moo. C. C. 12.

(6) Stephens v. Myers, 4 C. & P. 660.

(7) I Hawk. c. 62, s. 2; Rawlings v. Till, 3 M. & W. 28; Coward v. Baddeley,

4 H. & N. 278; 28 L. J. (Exch.) 290.

(8) Bull. N. P. 16.

(9) 1 Mod 24; W. Jones, 444; Arch. Cr. Pl. & Ev. 21 Ed. 758.

(10) Gibbons v. Pepper, 2 Salk, 637; See also, comments on excusable homicide, ante pp. 143, 144.

(11) Fost 260; Com. Dig. Pleader, 3 M. 18.

(12) Hawk. c. 60, s. 23; c. 62, s. 2; 2 Bos. & P. 224.