mortally, and after the wound given, but before death ensues, a person assist or receive the delinquent, this does not make him accessory to the homicide; for until death ensues no murder or manslaughter is committed: 2 Hawk. c. 29, s. 35; 4 Bl. Com. 38.

On an indictment charging a man as a principal felon only, he cannot be convicted of the offence of being an accessory after the fact: R. v. Fallon. L. & C. 217.

The receipt of stolen goods did not at common law constitute the receiver an accessory, but was a distinct misdemeanour, punishable by fine and imprisonment: 1 Hale, 620; see now section 314, post.

Four prisoners were indicted for murder jointly with two others indicted as accessories after the fact. The prisoners indicted for murder were found guilty of manslaughter, and the other two guilty of having been accessories after the fact to manslaughter. Held, on motion in arrest of judgment, that the conviction against the accessories was right: R. v. Richards, 13 Cox, 611; see R. v. Brannon, 14 Cox, 394.

ATTEMPTS.

64. Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended whether under the circumstances it was possible to commit such offence or not.

2. The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.

The words in italics were given as new law in the Imperial Commissioners' Report of 1879 in view of R. v. Collins, L. & C. 471, but that case has since been overruled: R. v. Brown, 24 Q. B. D. 357, and R. v. Ring, 17 Cox, 491.

See sections 528, 529, as to punishment in cases not otherwise provided for, and sections 711, 713 as to verdict of attempt under certain circumstances.

Attempts to commit certain crimes are specially provided for in sections 71, 75, 100, 120, 127, 129, 131, 132, 136, 154,

175, 178, 185, 189, 232, 238, 241, 2486, 268, 270, 400, 424, 432, 485, 488, 492, 494, 496, 500.

A mere intention to commit a crime is not indictable. Some act is required, but acts only remotely leading towards the commission of an offence are not to be considered as attempts to commit it, whilst acts immediately connected with it are: R. v. Roebuck, Dears. & B. 24; 1 Russ. 83; R. v. Hensler, 11 Cox, 570; R. v. Eagleton, Dears. 515; R. v. Roberts, Dears. 539; R. v. Cheeseman, L. & C. 140.

An assault with intent to commit a crime is an attempt to commit that crime: R. v. Dungey, 4 F. & F. 99. See reporter's note in that case and R. v. John, 15 S. C. R. 384.

An attempt to commit a crime is an intent to commit such crime manifested by some overt act, and, in cases of rape, robbery, etc., etc., necessarily includes an assault: Stephen's Cr. L. 49; in such cases, an assault is an attempt and an attempt is an assault; R. v. Martin, 9 C. & P. 213, 215; see annotation to section 711, post; and R. v. Marsh, 1 Den. 505; R. v. Heath, R. & R. 184; R. v. Stewart, R. & R. 288; R. v. Fuller, R. & R. 308; R. v. Duckworth, 17 Cox. 495.

If A., mistaking a post in the dark for B., and intending to murder B., shoots at the post, he has not committed an attempt to murder, according to the existing law. Does the above section 64 change the law in this respect? Sir James Stephens thinks that article 74 of the Draft Code of 1879 would have had that effect in England: 2 Stephen's Hist., 225. That article reads as follows:

"An attempt to commit an offence is an act done or omitted with intent to commit that offence, forming part of a series of acts or omissions which would have constituted the offence, if such series of acts or omissions had not been interrupted, either by the voluntary determination of the offender not to complete the offence, or by some other cause.

"Every one who, believing that a certain state of facts exists, does or omits an act, the doing or omitting of which would, if

that state of facts existed, be an attempt to commit an offence, attempts to commit that offence, although its commission in the manner proposed was, by reason of the non-existence of that state of facts at the time of the act or omission, impossible.

"The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law."

This article of the Imperial Draft Code, and of the Bill of 1879, re-appeared in the Bill of 1880, somewhat altered in shape and phraseology, but not in substance, as will be seen by comparing it with section 64 of this Code, which reproduces it verbatim as it was in that Bill of 1880. It thus seems clear that, in Sir James Stephen's opinion, the supposed case of attempting to murder by shooting at a post, would constitute now, under section 64 of this Code, an indictable attempt to commit murder-Sed quære? See Baron Bramwell's remarks in R. v. McPherson, Dears. & B. 197, in 1857, long before the decision in R. v. Collins, L. & C. 471. Sir James Stephens took the law as it was then settled by the case of R. v. Collins, which has since been over-ruled by R. v. Ring, 17 Cox, 491, and it was not necessary for him to distinguish between the case of the shooting at a post and the case of putting the hand in an empty pocket. In neither case, in his opinion, is there an indictable attempt to commit a crime. But though it is now unquestionable, under section 64, that the latter case constitutes an attempt to steal, though there was nothing to steal, it does not follow that the former case constitutes an attempt to murder, though there was no one to kill. Here the assault, a principal ingredient of the offence, is wanting. There was no assault on B., and A. clearly could not be indicted under section 232, post, because he did not shoot at any person: R. v. Lovel, 2 Moo. & R. 39. But, for an attempt to steal, the overt act, or commencement of execution of the theft is complete by itself when a man puts his hand into the

pocket of any one to steal whatever there may be in it. No ingredient of the attempt is wanted there. The offender may be arrested instanter, whilst no one could arrest a man who is preparing to shoot at a post, in the case first supposed.

That is, no doubt, almost the same question in another form, but yet it serves as a test. The shooting in that case is an attempt to attempt to commit murder, whilst in the case of stealing, the putting the hand in the pocket is the direct attempt to commit the stealing. The shooting is one degree more remote from the murder than the thrust of the hand in the pocket is from the stealing. There may have been no killing, even if B., the person intended to be murdered, had really been shot at, as the shot might either have missed him or only wounded him, and then A. would have been guilty of an attempt to murder. Whilst, in the other case, if there is in the pocket anything to steal, the stealing itself is the proximate, and only possible, offence which the man who thrusts his hand in the pocket can commit. Between the shooting at a person with intent to murder and the murder there is an intermediate possible offence, that is, the attempt to murder, if the person shot at is not killed. Between the thrust of the hand in the pocket with intent to steal, and the stealing, there is no such intermediate offence possible. In this last case, therefore, there is a direct attempt to steal, whilst in the first case there is no attempt to murder, not because a murder was not possible, but because, under the terms of subsection 2 of section 64, the act of shooting was too remote from the murder to constitute, in law, an attempt to murder, as there might have been no murder even if B. had actually been shot at.

TITLE II.

OFFENCES AGAINST PUBLIC ORDER, INTERNAL AND EXTERNAL.

PART IV.

TREASON AND OTHER OFFENCES AGAINST THE QUEEN'S AUTHORITY AND PERSON.

65. Treason is

(a) The act of killing Her Majesty, or doing her any bodily harm tending to death or destruction, maim or wounding, and the act of imprisoning or restraining her; or

(b) The forming and manifesting by an overt act an intention to kill Her Majesty, or to do her any bodily harm tending to death or destruction, maim or wounding, or to imprison or to restrain her; or

(c) The act of killing the eldest son and heir apparent of Her Majesty, or the Queen consort of any King of the United Kingdom of Great Britain and Ireland; or

(d) The forming and manifesting, by an overt act, an intention to kill the eldest son and heir apparent of Her Majesty, or the Queen consort of any King of the United Kingdom of Great Britain and Ireland; or

(e) Conspiring with any person to kill Her Majesty, or to do her any bodily harm tending to death or destruction, maim or wounding, or conspiring with any person to imprison or restrain her; or

(f) Levying war against Her Majesty either

(i) With intent to depose Her Majesty from the style, honour and royal name of the Imperial Crown of the United Kingdom of Great Britain and Ireland or of any other of Her Majesty's dominions or countries;

(ii) In order, by force or constraint, to compel Her Majesty to change her measures or counsels, or in order to intimidate or overawe both Houses or either House of Parliament of the United Kingdom or of Canada; or (g) Conspiring to levy war against Her Majesty with any such intent or for any such purpose as aforesaid; or

(h) Instigating any foreigner with force to invade the said United Kingdom or Canada or any other of the dominions of Her Majesty; or

(i) Assisting any public enemy at war with Her Majesty in such war by any means whatsoever; or

(j) Violating, whether with her consent or not, a Queen consort, or the wife of the eldest son and heir apparent, for the time being, of the King or Queen regnant.

2. Every one who commits treason is guilty of an indictable offence and liable to suffer death.