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In R. v. Ryland, 11 Cox, 101, it was held that under an indictment for unlawfully assaulting and having carnal knowledge of a girl between ten and twelve years of age the prisoner may be convicted of the attempt to commit that offence, though the child was not unwilling that the attempt should be made.

In R. v. Hapgood, 11 Cox, 471, H. was indicted for rape, and W. for aiding and abetting. Both were acquited of felony, but H. was found guilty of attempting to commit the rape, and W. of aiding H. in the attempt. The conviction was affirmed both as to W. and H. See R. v. Bain, L. & C. 129, and note (a) thereto: R. v. Mayers, 12 Cox, 311: R. v. Barratt, 12 Cox, 498: R. v. Dungey, 4 F. & F. 99.

Many cases of attempts to commit indictable offences may now fall under s. 263, ante, which provides for the punishment of any one who assaults any person with intent to commit any indictable offence.

The prisoner wrote a letter to a boy of fourteen inciting him to commit an unnatural offence: held, that this was an attempt to incite to commit a crime, and a misdemeanour. Any step taken with a view to the commission of a misdemeanour is a misdemeanour; per Lord Denman in R. v. Chapman, 1 Den. 432.

The attempt or inciting to commit a felony or a misdemeanour is a misdemeanour: R. v. Martin, 2 Moo. 123; R. v. Roderick, 7 C. & P. 795; Anon, 1 Russ. 85; R. v. Ransford, 13 Cox, 9. See R. v. Gregory, 10 Cox, 459.

ATTEMPT CHARGED, FULL OFFENCE PROVED.

712. When an attempt to commit an offence is charged but the evidence establishes the commission of the full offence, the accused shall not be entitled to be acquitted, but the jury may convict him of the attempt, unless the court before which such trial is had thinks fit, in its discretion, to discharge the jury from giving any verdict upon such trial, and to direct, such person to be indicted for the complete offence

2. Provided that after a conviction for such attempt the accused shall not be liable to be tried again for the offence which he was charged with attempting to commit. R. S. C. c. 174, s. 184.

CRIM. LAW-52

Section 184, R. S. C. c. 174, upon which the above section is based enacted that if upon a trial for a misdemeanour a felony was also proved the prisoner was not therefore to be acquitted. It was taken from the 14 & 15 V. c. 100, s. 12 of the Imperial Acts, upon which Greaves says: "This section was introduced to put an end to all questions as to whether on an indictment for a misdemeanour, in case upon the evidence it appeared that a felony had been committed, the defendant was entitled to be acquitted on the ground that the misdemeanour merged in the felony: R. v. Neale, 1 Den. 36; R. v. Button, 11 Q. B. 929. The discretionary power to discharge the jury is given in order to prevent indictments being collusively or improperly preferred for misdemeanours where they ought to be preferred for felonies, and also to meet those cases where the felony is liable to so much more severe a punishment than the misdemeanour, that it is fitting that the prisoner should be tried and punished for the felony. For instance, if on an indictment for attempting to commit a rape it clearly appeared that the crime of rape was committed it would be right to discharge the jury."

Formerly, where upon an indictment for an assault with intent to commit rape a rape was actually proved, an acquittal would have been directed on the ground that the misdemeanour was merged in the felony: R. v. Harmwood, 1 East, P. C. 440; R. v. Nicholls, 2 Cox, 182; though in R. v. Neale, 1 Den. 36, cited, ante, by Greaves, it was held before this enactment that where a prisoner was indicted for carnally knowing a girl between ten and twelve years of age, and it was proved that he had committed a rape upon her, he was not thereby entitled to be acquitted.

OFFENCE CHARGED PART ONLY PROVED.

713. Every count shall be deemed divisible; and if the commission of the offence charged, as described in the enactment creating the offence or as charged in the count, includes the commission of any other offence the person accused may be convicted of any offence so included which is proved, although the whole offence charged is not proved; or he may be convicted of an attempt to commit any offence so included:

2. Provided, that on a count charging murder, if the evidence proves manslaughter but does not prove murder the jury may find the accused not guilty of murder but guilty of manslaughter, but shall not on that count find the accused guilty of any other offence.

This is an extension of s. 191, c. 174, R. S. C. The abolition of the distinction between felonies and misdemeanours by itself alone extends very largely the number of cases where a verdict may be given for another offence than that one directly charged, as it has always been a principle of the common law that upon a charge of an offence composed of several ingredients the jury might, as a general rule, convict of any offence included in the one directly charged: R. v. Hollingberry, 4 B. & C. 330; though on an indictment for a felony the jury could not convict of a misdemeanour. Where an indictment contains divisible averments, as that the defendant "forged and caused to be forged," proof of either averment is sufficient: R. v. Middlehurst, 1 Burr. 400; and where a defendant is charged with composing, printing and publishing a libel he may be convicted of printing and publishing: R. v. Williams, 2 Camp. 646; a verdict of manslaughter may always be given, at common law, on a charge of murder, "Because, say the books, manslaughter is included in the charge of murder": Fost. 328. Greater offences include the lesser of a kindred character. On an indictment founded on a statute the defendant can be found guilty at common law 2 Hale, 191, 192; 1 Chit. 638; 2 Gabbett, 525. See R. v. Bullock, 1 Moo. 324 note; R. v. Oliver, Bell, 287; R. v. Yeadon, L. & C. 81; R. v. Taylor, 11 Cox, 261. Where the offence appears from the evidence to be of a higher degree than is charged in the indictment it is in the discretion of the court to discharge the jury, and to direct another indictment to be preferred: 1 Chit. 639; but if the offence charged is proved the court may receive a verdict upon it; the defendant cannot complain of having been found guilty of a lesser offence than what he might have been found guilty of on another indictment. But a verdict for an offence of a higher degree than the one

charged can never be received. By s. 713 a verdict for the attempt to commit any offence included in the offence charged may be given, and on a count for murder no other verdict can be given than for either murder or manslaughter; or on a charge of child murder for concealment of birth; s. 714; but, on an indictment for manslaughter, a verdict may be given for any offence included in that charge. See R. v. Bird, 2 Den. 94; R. v. Phelps, 2 Moo. 240; R. v. Ganes, 22 U. C. C. P. 185; R. v. Smith, 34 U. C. Q. B. 552.

On an indictment for stealing from the person a verdict for stealing simply may be given: R. v. Sterne, I Leach 473; a conviction may be returned for any minor offence which was substantially charged by the residue of the indictment after striking out that portion of which the defendant was acquitted: Commonwealth v. Murphy, 2 Allen Mass. 163; but the offence found must be the offence proved: R. v. Gorbutt, Dears. & B. 166; R. v. Langmead, L. & C. 427; R. v. Adams, 1 Den. 38; R. v. Rudge, 13 Cox, 17.

The following decisions on the repealed clause may be usefully referred to for the construction of s. 713.

In a joint indictment for felony one may be found guilty of the felony and the other of assault under this clause R. v. Archer, 2 Moo. 283. In an indictment for felony a conviction cannot be given under this clause of an assault completely independent and distinct, but only of such an assault as was connected with the felony charged: R. v. Guttridge, 9 C. & P. 471; and that case was followed in R. v. Phelps, 2 Moo. 240, and in R. v. Bird, 2 Den. 94. The case of R. v. Pool, 9 C. & P. 728, where Baron Gurney held that if a felony was charged and a misdemeanour of an assault proved the defendant might be convicted of the assault although that assault should not be connected with the felony, stands, therefore, overruled. In R. v. Boden, 1 C. & K. 395, it was held that on an indictment for assaulting with intent to rob, if that intent is negatived by the

jury, the prisoner may be convicted of assault under this enactment. In R. v. Birch, 1 Den. 185, upon a case reserved, it was held that upon an indictment for robbery the defendant, under this clause, may be found guilty of a common assault. The judges thought, upon consulting all the authorities, that this enactment was not to be confined to cases where the prisoner committed an assault in the prosecution of an attempt to commit a felony, nor was it to be extended to all cases in which the indictment for a felony on the face of it charged an assault. See also R. v. Ellis, 8 C. & P. 654. But they were of opinion that, in order to convict of an assault under this section, the assault must be included in the charge on the face of the indictment, and also be part of the very act or transaction which the crown prosecutes as a felony by the indictment. And it was suggested that it would be prudent that all indictments for felony including an assault, should state the assault in the indictment.

In R. v. Greenwood, 2 C. & K. 339, it was held by Wightman, J., that if on an indictment for robbery with violence the robbery was not proved the prisoner could not be found guilty of the assault only, unless it appeared that such assault was committed in the progress of something which, when completed, would be, and with intent to commit, a felony.

In R. v. Reid, 2 Den. 88, it was held by five judges that the verdict of assault allowed by this clause must be for an assault as a misdemeanour, and not for a felonious assault, and this has never since been doubted.

In R. v. St. George, 9 C. & P. 483, the prisoner was charged with attempting to fire a pistol with intent, etc. The question was whether the prisoner could be convicted of an assault committed with his hand prior to having drawn out the pistol. Baron Parke held that the prisoner could only be found guilty of that assault which was involved in and connected with firing the pistol; but that

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