The second part of this section expressly contemplates the case of a girl, under twenty-one, whose co-operation has been obtained by influence over her mind, and who has been taken out of the possession of her parent or guardian by means of a fraud practised upon them and against their will, or by force, against their will, but with her consent. If a girl, under twenty-one, is taken away or detained. against her own will, or her consent is obtained through fear, that case would be within the first part of this section. The woman, though married, may be a witness against the offender: Archbold, 700.

"If, therefore," says Taylor, on Evidence, par. 1236, "a man be indicted for the forcible abduction of a woman with intent to marry her, she is clearly a competent witness against him if the force were continuing against her till the marriage. Of this last fact also she is a competent witness, and the better opinion seems to be that she is still competent, notwithstanding her subsequent assent to the marriage and her voluntary co-habitation; for otherwise, the offender would take advantage of his own wrong."

Under s. 711 the prisoner may be found guilty of an attempt to commit the offence charged and punished under 8.528.

Under s. 713 the prisoner may be found guilty of an assault, if the evidence warrants such finding.

ABDUCTION-GIRL UNDER SIXTEEN.

283. Every one is guilty of an indictable offence and liable to five years' imprisonment who unlawfully takes or causes to be taken any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her.

2. It is immaterial whether the girl is taken with her own consent or at her own suggestion or not.

3. It is immaterial whether or not the offender believed the girl to be of or above the age of sixteen. R. S. C. c. 162, s. 44 (Amended). 24-25 V. c. 100, s. 55, and 48-49 V. c. 69, s. 7 (Imp.).

Sub-sections. 2 and 3 are new enactments though not new law. Fine, s. 958.

The intent to marry or carnally know is not an ingredient of this offence. The only intent which is material is the intent to deprive the parent or legal guardian of the possession of the child. No motives of lucre are necessary. A woman may be guilty of this offence.

It is immaterial whether the girl consents or not, and the taking need not be by force, actual or constructive : R. v. Mankletow, 1 Russ. 954, Dears. 159. Where a parent countenances the loose conduct of the girl the jury may infer that the taking is not against the parent's will. Ignorance of the girl's age is no defence: 1 Russ. 952; R. v. Robins, 1 C. & K. 456. It is not necessary that the taking away should be for a permanency; it is sufficient if for the temporary keeping of the girl: R. v. Timmins, Bell, 276.

On an indictment for abducting a girl under sixteen years of age it appeared that the girl, when abducted, had left her guardian's house for a particular purpose with his sanction: Held, that she had not ceased to be in his possession under the statute: R. v. Mondelet, 21 L. C. J. 154; see R. v. Henkers, 16 Cox, 257.

On a trial for taking an unmarried girl under the age of sixteen out of the possession of her guardian :

Held, 1st. That evidence of her being badly treated by her guardian is inadmissible. 2nd. That secondary evidence of the age of the child is admissible. 3rd. That in this case the defendant was not guilty of taking the child out of the possession of the guardian: R. v. Hollis, 8 L. N. 229.

To pick up a girl in the streets and take her away is not to take her out of the possession of any one. The prisoner met a girl under sixteen years of age in a street, and induced her to go with him to a place at some distance, where he seduced her and detained her for some hours. He then took her back to where he met her, and she returned home to her father. In the absence of any evi

dence that the prisoner knew, or had reason for knowing, or that he believed that the girl was under the care of her father at the time, held by the court of Criminal Appeal that a conviction under this section could not be sustained: R. v. Green, 3 F. & F. 274; R v. Hibbert, 11 Cox, 246.

One who takes an unmarried girl under the age of sixteen years out of the possession and against the will of her father or mother is guilty of this offence, although he may not have had any bad motive in taking her away, nor means of ascertaining her age, and although she was willing to go: R. v. Booth, 12 Cox, 231; R. v. Kipps, 4 Cox, 167.

The defence in Booth's case was that the prisoner, actuated by religious and philanthropic motives, had taken the girl from her parents in order to save her from seclusion in a convent. He was found guilty and sentenced.

A girl who is away from her home is still in the custody or possession of her father, if she intends to return; it is not necessary to prove that the prisoner knew the girl to be under sixteen; the fact of the girl being a consenting party cannot absolve the prisoner from the charge of abduction; this section is for the protection of parents: R. v. Mycock, 12 Cox, 28; R. v. Olifier, 10 Cox, 402; R. v. Miller, 13 Cox, 179.

Indictment.

unlawfully did take (or cause to be taken) one A. B. out of the possession and against the will of E. F., her father, she, the said A. B., being then an unmarried girl, and under the age of sixteen years, to wit, of the age of etc. (If necessary add a count stating E. F. to be a person having the lawful care and charge of the said A. B., or that the defendant unlawfully did cause to be taken one ): see R. v. Johnson, 15

Cox, 481.

It is no defence to an indictment under this section that the prisoner believed the girl to be eighteen: R. v. Prince, 13 Cox, 138, Warb. Lead. Cas. 89.

It was held in R. v. Bishop, 5 Q. B. D. 259, that under a statute which prohibits the receiving of lunatics for treatment in a house not duly licensed, the owner of a house who had received lunatics was guilty of the offence created by the statute, though the jury found that he believed honestly and on reasonable grounds that the persons received were not lunatics.

"I do not think that the maxim as to the mens rea has so wide an application as it is sometimes considered to have. In old time, and as applicable to the common law or to earlier statutes, the maxim may have been of general application; but a difference has arisen owing to the greater precision of modern statutes. It is impossible now to apply the maxim generally to all statutes, and it is necessary to look at the object of each act to see whether and how far knowledge is of the essence of the offence created": Per Stephen, J., in Cundy v. LeCocq, 13 Q. B. D. 207.

See R. v. Tolson, 16 Cox, 629, 23 Q. B. D. 168, as to mens rea; also Betts v. Armstead, 16 Cox, 418, 20 Q. B. D. 771; Ford v. Wiley, 16 Cox, 683, 23 Q. B. D. 203; Wood v. Burgess, 16 Cox, 729; Pain v. Boughtwood, 16 Cox, 747; and cases under s. 14, ante.

STEALING CHILDREN UNDER FOURTEEN.

284. Every one is guilty of an indictable offence and liable to seven years imprisonment who, with intent to deprive any parent or guardian, or other person having the lawful charge, of any child under the age of fourteen years, of the possession of such child, or with intent to steal any article about or on the person of such child, unlawfully

(a) takes or entices away or detains any such child; or

(b) receives or harbours any such child knowing it to have been dealt with as aforesaid.

2. Nothing in this section shall extend to any one who gets possession of any child, claiming in good faith a right to the possession of the child. R. S. C. c. 162, s. 45 (Amended).• 24-25 V. c. 100, s. 56 (Imp.).

The words "by force or fraud" were in the repealed clause.

See R. v. Johnson, 15 Cox, 481, Warb. Lead. Cas. 91; and R. v. Barrett, 15 Cox, 658.

Indictment.

unlawfully did take away (take

away, or entice away, or detain) one A. N., a child then under the age of fourteen years, to wit, of the age of seven years, with intent thereby then to deprive one A. S., the father of the said A. N., of the possession of the said A. N., his said child, against And the jurors

that

the said afterwards, to wit, on the day and year aforesaid, unlawfully did take away (or etc.,) the said A. N., a child then under the age of fourteen years, to wit, of the age of seven years, with intent thereby then to steal, take and carry away divers articles, that is to say then being upon and about the person of the said child. (Add counts stating that the defendant did entice away, or did detain, if necessary).

Upon the trial of any offence contained in this section the defendant may, under s. 711, be convicted of an attempt to commit the same.

All those claiming a right to the possession of the child are specially exempted from the operation of this section, by s-s. 2.

PART XXIII.

DEFAMATORY LIBEL.

DEFINITION.

285. A defamatory libel is matter published, without legal justification or excuse, likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or designed to insult the person to whom it is published.

2. Such matter may be expressed either in words legibly marked upon any substance whatever, or by any object signifying such matter otherwise than by words, and may be expressed either directly or by insinuation or irony.

See remarks under s. 302.