years, and by 144, obstructing him in the execution of his duty is punishable by ten years.

In an indictment for obstructing a sheriff's officer in executing a writ of fi. fa. the writ contained a mis-statement as to the date of the judgment on which it was issued.

Held, on a case reserved, that the writ being regular on its face the sheriff was bound to execute it The error was a mere irregularity which might have been amended and the prisoner was rightly convicted: R. v. Monkman, 8 Man.. L. R. 509.

in and upon one J. N., did said J. N., did then beat,

Indictment under (c).— make an assault, and him, the wound and ill-treat with intent in so doing to resist and prevent (resist or prevent) the lawful apprehension of (himself or of any other person) for a certain offence, that is to say (state the offence generally). (Count for com

mon assault).

It must be stated and proved that the apprehension was lawful: see R. v. Davis, L. & C. 64. If this and the intent be not proved a verdict of common assault may be given. But it must be remembered that resistance to an illegal arrest is justifiable, and if, in a case where a warrant is necessary and the officer making an arrest has not the warrant with him, the party whom he tries to arrest, resists and assaults him, he cannot be convicted of an assault on an officer in the due execution of his office: Codd v. Cabe, 13 Cox, 202.

a

Indictment under (d).- in and upon J. N. did unlawfully make an assault, the said J. N. then and there making in his quality of a duly appointed bailiff of lawful seizure under authority of justice, and whilst the said J. N. was making the said lawful seizure in his said quality.

Indictment under (e).—

in and upon one J. N., unlawfully did make an assault, on a day whereon a poll for

CRIM. LAW-17

an election for

to wit, on

was being proceeded with at

in

and within the distance of two miles

from the place where such poll was held.

KIDNAPPING.

264. Every one is guilty of an indictable offence and liable to seven years' imprisonment who, without lawful authority, forcibly seizes and confines or imprisons any other person within Canada, or kidnaps any other person with intent

(a) to cause such other person to be secretly confined or imprisoned in Canada against his will; or

(b) to cause such other person to be unlawfully sent or transported out of Canada against his will; or

(c) to cause such other person to be sold or captured as a slave, or in any way held to service against his will.

2. Upon the trial of any offence under this section the non-resistance of the person so kidnapped or unlawfully confined thereto shall not be a defence, unless it appears that it was not caused by threats, duress or force or exhibition of force. R. S. C. c. 162, s. 46.

At common law kidnapping is a misdemeanour, punishable by fine and imprisonment: 1 Russ. 962.

The forcible stealing away of a man, woman or child from their own country, and sending them into another, was capital by the Jewish and also by the civil law. This is unquestionably a very heinous crime, as it robs the sovereign of his subjects, banishes a man from his country, and may, in its consequences, be productive of the most cruel and disagreeable hardships: 4 Blacks. 219.

By the above section transportation to a foreign country is not necessarily an ingredient in this offence.

The defendant may be found guilty of an attempt to kidnap upon an indictment for kidnapping, s. 711.

A verdict of assault may also be given if the evidence warrants it, s. 713.

Indictment.- with force and arms unlawfully an assault did make on one A. B., and did then and there, without lawful authority, unlawfully and forcibly seize and imprison the said A. B., within the Dominion of Canada (or confine or kidnap) with intent the said A. B. unlawfully

and forcibly to cause to be unlawfully transported out of Canada, against his will.

Held, on the trial of an indictment for kidnapping under 32 & 33 V. c. 20, s. 69, that the intent required applies to the seizure and confinement as well as to the kidnapping, and the indictment should state such intent: Cornwall v. R., 33 U. C. Q. B. 106.

COMMON ASSAULT.

265. Every one who commits a common assault is guilty of an indictable offence and liable, if convicted upon an indictment, to one year's imprisonment, or to a fine not exceeding one hundred dollars, and on summary conviction to a fine not exceeding twenty dollars and costs, or to two months' imprisonment with or without hard labour. R. S. C. c. 162, s. 36.

See s. 109, ante, as to pointing firearms at any person, and s. 258 as to definition of an assault.

Indictment for a common assault.

on the

at

that C. D.,

in and upon one A. B., an assault did make, and him the said A. B. then and there did beat, wound and ill-treat, and then and there to him other wrongs and injuries did.

A common assault may be prosecuted either by indictment or under the Summary Convictions clauses, 839, et seq. post.

Costs on conviction for assault, s. 834, post.

An assault is an attempt or offer, with force and violence, to do a corporal hurt to another, whether from malice or wantonness; as by striking at him with or without a weapon, though the party striking misses his aim; so drawing a sword, throwing a bottle or glass with intent to wound or strike, presenting a loaded gun or pistol at a person within the distance to which the gun or pistol will carry, or pointing a pitchfork at a person standing within reach, holding up one's fist at him in a threatening or insulting manner, or with such other circumstances as denote at the time an intention, coupled with a present ability, of using actual violence against his person, will amount to an assault: 1 Burn, 308.

It had been said that the presenting a gun or pistol at a person within the distance to which it will carry, though in fact not loaded, was an assault, but later authorities have held that, if it be not loaded, it would be no assault to present it and pull the trigger: 1 Burn, loc. cit: see s. 109, ante.

One charged with an assault and battery may be found guilty of the assault, and yet acquitted of the battery; but every battery includes an assault; therefore on an indictment for assault and battery, in which the assault is illlaid, if the defendant be found guilty of the battery it is sufficient 1 Hawk. 110; see note to R. v. Read, 1 Den. 377.

:

Mere words will not amount to an assault, though perhaps they may in some cases serve to explain a doubtful action 1 Burn 309.

If a man strike at another, but at such a distance that he cannot by possibility touch him, it is no assault. But if A. advances in a threatening attitude with his fists clenched towards B., with an intention of striking him, so that his blow would have almost immediately reached B., if he had not been stopped by a third person, this would be an assault in point of law, though at the particular moment when A. was stopped he was not near enough for his blow to take effect: Stephens v. Myers, 4 C. & P. 349.

To collect a number of workmen round a person who tuck up their sleeves and aprons and threaten to break his neck if he did not go out of the place, through fear of whom he did go out, amounts to an assault. There is the intention and present ability and a threat of violence causing fear: Read v. Coker, 13 C. B. 850.

So riding after a person and obliging him to run away into a garden to avoid being beaten is an assault: Mortin v. Shoppee, 3 C. & P. 373.

Any man wantonly doing an act of which the direct consequence is that another person is injured commits an

assault at common law, though a third body is interposed between the person doing the act and the person injured. Thus to drive a carriage against another carriage in which a person is sitting, or to throw over a chair on which a person is sitting, whereby the person in the carriage or on the chair, as the case may be, is injured, is an assault. So encouraging a dog to bite, or wantonly riding over a person with a horse, is an assault: 1 Burn, 309; 1 Russ. 1021.

In R. v. Wollaston, 12 Cox, 182, Kelly, C.B., said: "If anything is done by one being upon the person of another, to make the act an assault it must be done without the consent and against the will of the person upon whom it is done. Mere submission is not consent, for there may be submission without consent, and while the feelings are repugnant to the act being done. Mere submission is totally different from consent. But in the present case there was actual participation by both parties in the act done, and complete mutuality:" and the defendant was acquitted as the boys, aged above fourteen, upon whom he was accused of having indulged in indecent practices, had been willing and assenting parties to what was done. But see now s. 178, ante.

But if resistance be prevented by fraud it is an assault. If a man, therefore, have connection with a married. woman, under pretense of being her husband, he is guilty of an assault: R. v. Williams, 8 C. & P. 286; R. v. Saunders, 8 C. & P. 265; now, of rape; s. 266 post.

In R. v. Lock, 12 Cox, 244, upon a case reserved, it was held that the definition of an assault that the act must be against the will of the patient implies the possession of an active will on his part, and, therefore, the mere submission by a child of tender years (eight years old) to an indecent assault, without any active sign of dissent, the child being ignorant of the nature of the assault, does not amount to consent so as to take the offence out of the operation of criminal law.