PART XX.

ASSAULTS.

DEFINITION.

258. 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.

As to the words in italics: see R. v. Clarence, 16 Cox, 511, 22 Q. B. D. 23, Warb. Lead. Cas. 130. This definition covers an assault and battery, as well as a simple assault: see post remarks under ss. 262 and 265.

INDECENT ASSAULTS ON FEMALES.

239. Every one is guilty of an indictable offence and liable to two years' imprisonment, and to be whipped, who

(a) Indecently assaults any female; or

(b) Does anything to any female by her consent which but for such consent would be an indecent assault, such consent being obtained by false and fraudu lent representations as to the nature and quality of the act. 53 V. c. 37, s. 12. 24-25 V. c. 100, s. 52 (Imp.).

Fine, s. 958

See s. 685, post, as to evidence of young children upon a charge of an indecent assault; also s. 25 of The Canada Evidence Act 1893, and s. 261.

Indictment.

one A. D. a female, unlawfully and indecently did assault, and her, the said A. D. did then beat, wound and ill treat, and other wrongs to the said A. D. did, to the great damage of the said A. D.

Upon the trial of the prisoner, a school teacher, for an indecent assault upon one of his scholars, it appeared that he forbade the prosecutrix telling her parents what had happened, and they did not hear of it for two months. After the prosecutrix had given evidence of the assault evidence was tendered of the conduct of the prisoner towards her subsequent to the assault: Held, that the evidence was admissible as tending to show the indecent

quality of the assault, and as being, in effect, a part or continuation of the same transaction as that with which the prisoner was charged: R. v. Chute, 46 U. C. Q. B. 555; see R. v. Drain, under s. 262, post.

As to sub-section (b) of s. 259, see R. v. Bennett, 4 F. & F. 1105; R. v. Case, 1 Den. 580; R. v. Clarence, 16 Cox, 511, 22 Q. B. D. 23, Warb. Lead. Cas. 130.

INDECENT ASSAULTS ON MALES.

260. Every one is guily of an indictable offence and liable to ten years' imprisonment and to be whipped who assaults any person with intent to commit sodomy, or who, being a male, indecently assaults any other male person. R. S. C. c. 157, s. 2. (Amended).

Attempt to commit sodomy is provided for by s. 175. See ante, notes under ss. 174, 175, 178, and post, under s. 261.

An indictment under this clause is defective even after verdict if it does not aver in express terms that the accused and the assaulted party are males: R. v. Montminy on a case reserved, Q. B. Quebec, May, 1893.

See form, ante, under s. 178.

CONSENT OF CHILDREN UNDER 14 No DEFENCE.

261. It is no defence to a charge or indictment for any indecent assault on a young person under the age of fourteen years to prove that he or she consented to the act of indecency. 53 V. c. 37, s. 7. 43-44 V. c. 45, s. 2 (Imp.).

This enactment applies to assaults on males as well as on females; R. v. Mehegan, 7 Cox, 145; R. v. Johnson, L. & C. 632, and that class of cases are not now law; see R. v. Brice, 7 Man. L. R. 627.

This enactment applies to all offences which include an indecent assault.

ACTUAL BODILY HARM.

262. Every one who commits any assault which occasions actual bodily harm is guilty of an indictable offence and liable to three years' imprisonment, R. S. C. c. 162, s. 35.

Fine, s. 958.

In R. v. Clarence, 16 Cox, 511, 22 Q. B. D. 23, Warb. Lead. Cas. 130, it was held that a husband who communicates a venereal disease to his wife cannot be indicted for causing her actual bodily harm.

Indictment for an assault occasioning actual bodily harm. that J. S., on in and upon one J. N. did make an assault, and him the said J. N. did then beat, wound and ill-treat, thereby then occasioning to the said J. N. actual bodily harm, and other wrongs to the said J. N. then did, to the great damage of the said J. N.

The defendant may be convicted of a common assault upon an indictment for occasioning actual bodily harm: R. v. Oliver, Bell, 287; R. v. Yeadon, L. & C. 81; s. 713, post.

The intent to do bodily harm, or premeditation, is not necessary to convict upon an indictment under this section; thus a man who commits an assault the result of which is to produce bodily harm is liable to be convicted under this section, though the jury find that the bodily harm formed no part of the prisoner's intention, and was done without premeditation, under the influence of passion: R. v. Sparrow, Bell, 298.

The actual bodily harm mentioned in this section would include any hurt or injury calculated to interfere with the health or comfort of the prosecutors; it need not be an injury of a permanent character, nor need it amount to what would be considered to be grievous bodily harm.

On an indictment for assault and battery occasioning actual bodily harm the evidence proved only a common assault or an assault and battery: Held, on a case reserved, that the accused was not a competent witness on his own behalf under c. 174, s. 216.

A statement by the man assaulted, made immediately after the assault and in presence of the accused, was held admissible: R. v. Drain, 8 Man. L. R. 535.

AGGRAVATED ASSAULTS, ETC.

263. Every one is guilty of an indictable offence and liable to two years' imprisonment who

(a) Assaults any person with intent to commit any indictable offence; or (b) Assaults any public or peace officer engaged in the execution of his duty, or any person acting in aid of such officer; or

(c) Assaults any person with intent to resist or prevent the lawful apprehension or detainer of himself, or of any other person, for any offence; or

(d) Assaults any person in the lawful execution of any process against any lands or goods, or in making any lawful distress or seizure, or with intent to rescue any goods taken under such process, distress or seizure. R. S. C. c. 162 s. 34.

(e) On any day whereon any poll for any election, parliamentary or municipal, is being proceeded with, within the distance of two miles from the place where such poll is taken or held, assaults or beats any person. R. S. C. c. 8, s. 77.

Section 77 of c.8, R. S. C. (unrepealed), of which the above s-s. (e) is a partial re-enactment, applies only to battery, and the prosecution if taken under that Act is limited by one year, and punishable by five years, s. 951, post.

Fine, s. 958. "Public officer" and "peace officer" defined, s. 3.

Indictment under (a).

in and upon one J. N. unlawfully did make an assault, and him the said J. N. did beat, wound and ill-treat with intent him the said J. N. unlawfully to kill and murder. (Add a count for a common

assault).

Every attempt to commit an offence against the person of an individual without his consent involves an assault. Prove an attempt to commit such an offence, and prove it to have been done under such circumstances that, had the attempt succeeded, the defendant might have been convicted of the offence. If you fail proving the intent, but prove the assault, the defendant may be convicted of the common assault.

Indictment under (b).

in and upon one J. N. then being a peace officer, to wit, a constable (any peace officer in the execution of his duty, or any person acting in aid of) and then being in the due execution of his duty as such constable, did make an assault, and him, the said J. N., so being in the execution of his duty as aforesaid, did then beat, wound and ill-treat, and other wrongs to the said J. N., then did, to the great damage of the said J. N. (Add a count for a common assault.)

Prove that J. N. was a peace officer, as stated in the indictment, by showing that he had acted as such.

It is a maxim of law that " omnia præsumuntur ritè et solenniter esse acta donec probetur in contrarium,” upon which ground it will be presumed, even in a case of murder, that a man who has acted in a public capacity or situation was duly appointed: R. v. Verelst, 3 Camp. 432; R. v. Gordon, 1 Leach, 515; R. v. Murphy, 8 C. & P. 297; R. v. Newton, 1 C. & K. 469; Taylor, on Evidence, par. 139, 431. Prove that J. N. was in the due execution of his duty, and the assault: MacFarlane v. R., 16 S. C. R. 393, and R, v. King, 18 0. R. 566; R. v. Lantz, 19 N. S. Rep. 1. If you fail in proving that J. N. was a peace officer, or that he was acting lawfully as such, the defendant may be convicted of a common assault.

The fact that the defendant did not know that the person assaulted was a peace officer, or that he was acting in the execution of his duty, is no defence: R. v. Forbes, 10 Cox, 362.

Sections 144 & 263 (b) ought to form only one: 144 s-s. 1, is for resisting or obstructing a public officer in the execu tion of his duty: punishment, ten years; 263 is for assaulting a public or peace officer in the execution of his duty: punishment, two years; then s-s. 2, s. 144, again provides for the offence of resisting or wilfully obstructing any peace officer in the execution of his duty: punishment, two years. Ten years for resisting a public officer, and, by the same clause, two years for resisting a peace officer. By the interpretation clause, s. 3, the expression "peace officer" includes a "Mayor, Warden, Reeve, Sheriff, Deputy Sheriff, Sheriff's officer and Justice of the peace, and also the Warden, Keeper or guard of a penitentiary, or of any prison, and any police officer, police constable, bailiff, constable or other person employed for the preservation and maintenance of the public peace, or for the service or execution of civil process."

So that, by 263, an assault on a Mayor, Reeve or Warden, in the execution of his duty, is punishable by two