In Quebec, in the cases of R. v. Carr (2nd case,) R. v: Wright, R. v. Taylor, and upon indictments charging either murder or manslaughter, verdicts of "guilty of assault" have been given, and received, unquestioned.

In R. v. Walker (Salacia case,) Quebec, 1875, for manslaughter, Dorion, C. J., charged the jury that they were at liberty to return a verdict of common assault.

Upon an indictment for rape or for an assault with intent to commit rape, under secs. 37, 38, of c. 162, see p. 197, ante, a boy under the age of fourteen years may be convicted of an assault under the said section 191 of the Procedure Act.-R. v. Brimilow, 2 Moo. C, C. 122.

Upon an indictment, under sec. 8, c. 162, p. 147, ante, for feloniously assaulting with intent to murder, a verdict of common assault may be given under the said section of the Procedure Act.-R. v. Cruse, 2 Moo. C. C. 53; R. v. Archer, 2 Moo. C. C. 283. If a man has carnal knowledge of a woman by a fraud which induces her to suppose it is her husband, upon an indictment for rape, he must be acquitted of the felony, but may, under the said section of the Procedure Act, be convicted of an assault.-R. v. Saunders, 8 C. & P. 265; R. v. Williams, 8 C. & P. 287. (This is rape now in England by statute of of 1885.)

But to authorize such a verdict, the felony charged must necessarily include an assault on the person, and, for instance, on an indictment for administering poison with intent to murder, a verdict of assault cannot be given under this clause. Nor can it be given on an indictment for burglary with intent to ravish.-R. v. Watkins, 2 Moo, C. C. 217; R. v. Dilworth, 2 M. & Rob. 531; R. v. Draper, 1 C. & K. 176; but such a verdict may be given, if the indictment charges an assault, and the wilfully administering of deleterious drugs.-R. v. Button, 8 C. & P. 660.

The authorities on the question are sufficiently clear as to one point, viz., that, under this section of the Procedure Act, in all cases of felonies, which include an assault against the person, although an assault be not charged in terms, the jury may acquit of the felony, if such is not proved, and find a verdict of assault against the defendant, if the evidence warrants it; that is to say, if an assault forming part of the very act or transaction which the crown prosecutes as a felony by the indictment has been proved.

It is true that as to indictments for murder or manslaughter, R. v. Phelps and R. v. Bird, in England, and R. v. Ganes, in Ontario, are given by the reporters as ruling, as an abstract principle, that in no case of murder or manslaughter a verdict of assault can be given under this section; but a careful consideration of these cases will show that they do not bear such an interpretation.

In the first of these cases, R. v. Phelps, as already stated, it was decided that, upon an indictment for murder, the defendant cannot, under this clause, be convicted of an assault entirely separate and distinct from the felony charged; it was there proved that when the deceased was killed, when the murder was committed, the defendant was away from the spot and had been gone for a quarter of an hour; the judges decided that, upon this evidence, the defendant could not be convicted of an assault, though an assault had been proved to have been committed by him on the deceased a quarter of an hour before the murder took place. And this ruling has never since been questioned; it is not because a felony involves an assault that the defendant can be convicted of any assault whatever, committed on the same person; if in the course of the evidence, the witnesses happen to disclose crimes

entirely distinct and disconnected from the offence charged, the jury are not thereby authorized to adjudge on anything else but the facts forming part of the crime laid in the indictment. The assault which can be found cannot be any other assault than the one necessarily accompanying the crime charged, and forming an integral part of it, as in R. v. Brimilow; R. v. Cruse; R. v. Birch, etc., ante. So much for R. v. Phelps, which is clearly far from supporting the proposition that a verdict for assault cannot, under any circumstances, be found in cases of murder or manslaughter.

Then comes R. v. Bird. It is an error to cite this case as deciding anything else than the case of R. v. Phelps. It is based on the following facts: The prisoners were indicted for the murder of Mary Ann Parsons, by striking and beating her. It was proved on the trial that Mary Ann Parsons' death, on the 4th of January, 1850, was caused exclusively by one particular blow on the head, inflicted shortly before her death, but there being no evidence that the fatal blow had been struck by either of the prisoners, they were acquitted; during the course of the trial, it had been proved that the prisoners had committed different assaults on the deceased in the two months preceding her death, but that none of these assaults were connected with her death. The majority of the court held, that on these facts, a verdict of assault could not be given against the prisoners. And why? Because the assaults committed by them on Mary Ann Parsons during the two months preceding her death were not included in the crime charged in the indictment, but were totally different and distinct offences; because the only assault included in the indictment was the particular blow which had caused her death, and as they were found not guilty of having

given that particular blow, they were entitled to a full acquittal, and the jury had not the right to say: "It is true that the assault which caused Mary Ann Parsons' death has not been proved to have been committed by the prisoners, but other assaults previously committed by them on the deceased have been proved, and we will take this occasion to find the defendants guilty of these, though they were only accused, in this case, of the particular blow which caused the death."

It is obvious that this would be trying a man for one offence, and finding him guilty of another. That is what the court refused to do in that case of R. v. Bird, and a reference, as infra, to the remarks of the following judges who form part of the majority will show that they followed Phelps' case, without going an inch further:

None of these learned judges said that a verdict for assault can never be given on an indictment for murder or manslaughter. Indeed, it will be found that they all appear to think such a result possible.

Wightman, J., distinctly says: "If in the present case, it had appeared that, at the time the mortal injury was received, the prisoners were with the deceased, and had assaulted and beaten her immediately before, but that the evidence raised a doubt whether the mortal injury was occasioned by blows, or by a fall which might be attributed to accident, and on that ground the jury had acquitted the

prisoners of felony, I should think that they might be convicted of assault under the statute, for in that case, the assault proved would have been involved in, and formed part of the act or transaction charged as a felony in the indictment, and prosecuted as such."

And Jervis, C. J. (one of the minority,) says: "If it had been proved that the child had not died, it is admitted that the prisoners might have been convicted of assault upon this indictment for murder. If the death resulted from natural causes, it is admitted that the prisoners might have been convicted of assault upon this indictment for murder."

In the Ontario case of R. v. Ganes, see ante, the facts were almost similar to those in R. v. Bird, and the only ruling in the case is that where upon an indictment for murder, the prisoners are proved to have, at different times before the death of the deceased, committed on him various assaults, yet they cannot be found guilty of these assaults, and must be acquitted, altogether, if it is proved that these assaults were not connected with the death of the deceased; but, on the contrary, that the deceased died from a burning, with which the prisoners were not connected. Here, as in Phelps' and Bird's cases, the only question decided is that upon an indictment for murder or manslaughter, the defendant cannot be found guilty of any offence not included in the crime charged, viz., of an assault committed at another time than the offence charged, of any other assault than the one which the prosecution charged as a felony.

And the judges, who formed the minority in Bird's case, did not intend to overrule R. v. Phelps, but thought one case distinguishable from the other.

But it is said, and this reasoning is adopted by Mr.