C. D., his child as aforesaid, by means of which refusal, neglect and omission, the life of the said C. D. was and is endangered, and the health of the said C. D. was and is (or is likely to be) permanently injured.

Indictment under sections 210-215 against a husband for not providing necessaries for his wife . .. that on at...., and on divers other days before and after, A. B. the husband of one C. D., being then and there under a legal duty to provide necessary food, clothing, lodging, and all other necessaries for the said C. D., his wife, unlawfully did refuse, neglect and omit without lawful excuse to provide for her the necessary food, clothing, lodging and other necessaries, so that the life of the said C. D. was and is thereby endangered, and her health was and is permanently injured (or is likely to be permanently injured).

That J. S. on

Indictment under sections 211-215 against a master for not providing an apprentice with necessary food. then being the master of J. N. his apprentice, the said J. N. being then under the age of 16 years, and the said J. S. having before the said day contracted to provide for the said J. N. as his apprentice as aforesaid, necessary food (clothing or lodging) unlawfully and without lawful excuse, did refuse, omit and neglect to provide the same, so that the life of the said J. N. was and is thereby endangered, (or the health of the said J. N. has been or is likely to be permanently injured). (Add counts varying the statement of the injuries sustained).

Prove the apprenticeship, if it was by deed by production and proof of the execution of the deed, or in case it be in the possession of the defendant, and there be no counterpart, by secondary evidence of its contents, after due notice given to the defendant, to produce it. In England, it is said in Archbold that the legal liability of the defendant to provide his apprentice with necessary food, clothing or lodging will be inferred, even if it be not expressly stipulated

for, from the apprenticeship itself, but in Canada, upon an indictment under section 211, it must be proved that the defendant had contracted to provide for it, either by parol or in writing. Prove the wilful refusal or neglect of the defendant to provide the apprentice with necessary food, etc., as stated in the indictment, and that by such neglect the prosecutor's life was in danger, or his health was or is likely to be permanently injured.

An indictment alleged in the first count that the prisoner unlawfully and wilfully neglected and refused to provide sufficient food for her infant child five years old, she being able and having the means to do so. The second count charged that the prisoner unlawfully and wilfully neglected and refused to provide her infant child with necessary food, but there was no allegation that she had the ability or means to do so. The jury returned a verdict of guilty, on the ground that if the prisoner had applied to the guardians for relief she would have had it. Held, that neither count was proved, as it was not enough that the prisoner could have obtained the food on application to the guardians, and that it is doubtful whether the second count is good in law: R. v. Rugg, 12 Cox, 16.

It is to be remarked that the indictment in that case was under the common law, as, in England, the statute 24 & 25 V. c. 100 applies only to masters and servants. The bill as introduced in the House of Lords extended its provisions to husband and parents, but the Commons restricted it to masters: Greaves, Cons. Acts, 56. By the common law an indictment lies for all misdemeanours of a public nature. Thus it lies for a breach of duty which is not a mere private injury but an outrage upon the moral duties of society; as for the neglect to provide sufficient food or other necessaries for an infant of tender years unable to provide for and take care of itself, for whom the defendant is obliged by duty to provide, so as thereby to injure its health.

But the parent must have a present means or ability to support the child; the possibility of obtaining such relief is not sufficient; and, by the neglect of such duty, the child must have suffered a serious injury. An opportunity of applying to a relieving officer of the union from which the mother would have received adequate relief on application is not a sufficient proof in England of her having present means: R. v. Chandler, Dears. 453; R. v. Hogan, 2 Den. 277; R. v. Phillpot, Dears. 179. But these and similar cases are no authorities under our present statute in Canada.

In an indictment under s. 19, c. 162, R. S. C., it was not necessary to allege that the defendant had the means and was able to provide the food or clothing nor that his neglect to do so endangers the life or affects the health of his wife: R. v. Smith, 2 L. N. 223; R. v. Scott, 28 L. C. J. 264; but now, in an indictment under section 210, it is necessary to allege that the refusal, omission and neglect was without lawful excuse and that by such refusal, omission, and neglect to provide the food, etc., necessary to his wife, her life has been and is endangered, or her health permanently injured, or likely to be permanently injured: see R. v. Maher, 7 L. N. 82; R. v. Nasmith, 42 U. C. Q. B. 242.

Held, Armour, J., dissenting, that the evidence of a wife. is inadmissible on the prosecution of her husband for refusal to support her, under 32-33 V. c. 20, s. 25; R. v. Bissell, 1 O. R. 514.

As to sections 213 & 214, which are common law rules, see annotation under section 220, post, and R. v. Salmon, Warb. Lead. Cas. 113, and cases there cited.

ABANDONING INFANTS, ETC., ETC.

216. 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. 24-25 V. c. 100, s. 27 (Imp.).

Fine, section 958.

The repealed section had the words "or is likely to be permanently injured," and did not have sub-section 2.

Greaves' Note.-This clause is new. It is intended to provide for cases where children are abandoned or exposed under such circumstances that their lives or health may be, or are likely to be, endangered: see R. v. Hogan, 2 Den. 277; R. v. Cooper, 1 Den. 459, 2 C. & K. 876; R. v. Phillpot, Dears. 179; R. v. Gray, Dears. & B. 303, which show the necessity for this enactment.

Indictment.

unlawfully did abandon and expose a certain child called J. N., then being under the age of two years, whereby the life of the said child was endangered (or whereby the health of such child was and is permanently injured).

In order to sustain this indictment it is only necessary to prove that the defendant wilfully abandoned or exposed the child mentioned in the indictment, that the child was then under two years of age, and that its life was thereby endangered, or its health has been and is permanently injured

A. and B. were indicted for that they "did abandon and expose a child then being under the age of two years, whereby the life of the child was endangered." A., the mother of a child five weeks old, and B. put the child into a hamper, wrapped up in a shawl, and packed with shavings and cotton wool, and A., with the connivance of B., took the hamper to M., about four or five miles off, to the booking office of the railway station there. She there paid for the carriage of the hamper, and told the clerk to be very careful of it, and to send it to G. by the next train, which would leave M. in ten minutes from that time. She said nothing as to the contents of the hamper, which was addressed, "Mr. Carr's, Northoutgate, Gisbro, with care, to be deliv

ered immediately," at which address the father of the child (a bastard) was then living. The hamper was carried by the ordinary passenger train, and delivered at its address the same evening. The child died three weeks afterwards, from causes not attributable to the conduct of the prisoners. On proof of these facts, it was objected for the prisoners that there was no evidence that the life of the child was endangered, and that there was no abandonment and no exposure of the child within the meaning of the statute. The objections were overruled and the prisoners found guilty. Held, that the conviction should be affirmed: R. v. Falkingham, 11 Cox, 475, Warb. Lead. Cas. 93.

A mother of a child under two years of age brought it and left it outside the father's house (she not living with her husband, the father of it). He was inside the house, and she called out, "Bill, here's your child; I can't keep it. I am gone." The father some time afterwards came out, stepped over the child and went away. About an hour and a half afterwards, his attention was again called to the child still lying in the road. His answer was, "It must bide there for what he knew, and then the mother ought to be taken up for the murder of it." Later on, the child was found by the police in the road, cold and stiff; but, by care, it was restored to animation. Held, on a case reserved, that, though the father had not had the custody of the child, yet, as he was by law bound to provide for it, his allowing it to remain where he did was an abandonment and exposure of the child by him, whereby its life was endangered, within the statute: R. v. White, 12 Cox, 83.

ASSAULT BY MASTERS ON SERVANTS, ETC., ETC.

217. 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.

Chapter 62, R. S. C. cited under this section is "An Act respecting Copyright."