Justice Gwynne, in R. v. Ganes, that, as in murder or manslaughter, the only assault charged in the indictment is the one which conduced to the death of the deceased, if the prisoner is guilty of an assault, he is guilty of the felony, and cannot, in respect of that assault, be convicted of assault merely; and that if the assault proved does not conduce to the death, it is distinct from and independent thereof, and is, therefore, not included in the crime charged; and, therefore, that no verdict of assault can be rendered upon an indictment for homicide, in respect of such an assault.

When different assaults are brought out by the prosecution, in the course of the evidence, as supposed by Erle, J., in his remarks in Bird's case, and as was the case in R. v. Phelps, R. v. Bird, and R. v. Ganes, this opinion seems to be unassailable. But when the defendant is accused of having, on a certain occasion, killed a person, by, for instance, striking him in the chest, cannot the jury say: "We find that, on the occasion specified, the defendant did strike the deceased, but we do not think it proved by the prosecution that the deceased died of this blow." How can it be said that the crime charged is the assault connected with the death, and that of the assault connected with the death only the prisoner can be found guilty, or else be acquitted altogether? This reasoning would render the clause wholly inoperative in cases of homicide. And when the clause says "for any felony whatever," it expressly includes murder or manslaughter. Moreover this interpretation would make the clause say that when a felony is proved, a verdict of assault can be returned. This would be absurd, and the law does not say it; quite the contrary, such a finding is allowed only, if the evidence warrants it. The clause must be read, in

cases of homicide, as if it said: "On the trial of any person for murder or manslaughter, where the homicide charged includes an assault against the person, although an assault be not charged in terms (and no assault is now, in such cases, charged in terms), the jury may acquit of the felony, and find a verdict of guilty of assault against the defendant, if the defendant's act which the prosecution called a felony has been proved to be only an assault." The clause, indeed, says, in express terms, that in such a case, there must be an acquittal for a part, i.e., "may acquit of the felony," and a conviction for another part, i.e., "may find a verdict of assault," showing the operation it authorizes, of first divesting the act charged against the defendant of the felonious character which the prosecution endeavoured to put upon it, if the evidence warrants it, and secondly, of finding the same act to be an assault, if the evidence warrants it.

Any other interpretation gives to the clause an absurd sense, and the rule is that of two possible interpretations of a statute, the one which gives it a reasonable and practicable sense is to be preferred to any other, which would make it absurd and inoperative.

In a case of R. v. Dingman, 22 U. C. Q. B. 283, it was held that, under s. 66, c. 99, of the Consolidated Statutes of Canada, there could be no conviction for an assault, unless the indictment charged an assault in terms, or a felony necessarily implying an assault; but the insertion of the words "although an assault be not charged in terms," in sec. 191 of the Procedure Act, renders this ruling now inapplicable, if it was ever correct.

In New Brunswick, the repealed statute, 1 Rev. Stat., c. 149, s. 20, enacted that: "Whoever, on a trial for murder or manslaughter, or any other felony which shall

include an assault, shall be convicted of an assault only, shall be imprisoned for any term not exceeding three years, or fined at the discretion of the court."

In R. v. Cregan, 1 Hannay, 36, on an indictment for murder, the jury found the prisoner guilty of an assault only, but that such assault did not conduce to the death of the deceased. The court held this conviction illegal, and not sustained by the above statute.

In R. v. Cronan, 24 U. C. C. P., 106, the Ontario Court of Common Pleas held that upon an indictment for shooting with a felonious intent, the prisoner, if acquitted of the felony, may be convicted of a common assault, and that to discharge a pistol loaded with powder and wadding, at a person, within such a distance that he might have been hit, is an assault.

In R. v. Goadby, 2 C. & K. 782, it appears to have been held that a verdict of assault cannot be received on an indictment for feloniously stabbing with intent to do grievous bodily harm, but this case seems very questionable, says Greaves, note d, 2 Russ. 63.

The case of R. v. Dungey, 4 F. &. F. 99, where it was held that after an acquittal upon an indictment for rape, the prisoner may be indicted for a common assault, is not law in Canada, under sec. 191 of the Procedure Act.

Held, by Weldon, Wetmore and King, J. J., (Allen, C. J., and Duff, J., dis.), that on an indictment for murder in the short form given in schedule A. to c. 29 of 32-33 V., a prisoner cannot be convicted of an assault under s. 51 of that chapter.

Held, also, by all the judges, that the fact of the prisoner's counsel having, at the trial, consented that he could be convicted, and requested the judge so to direct the jury, did not preclude him from afterwards objecting to the

validity of the conviction on this ground.-The Queen v. Mulholland, 4 P. & B. (N. B.) 512.

Greaves' note to R. v. Phillips, 3 Cox, 226.

"It may admit of some doubt whether the construction of s. 11 of the 1 V., c, 85, is finally settled. The framer of the clause probably intended that the clause should apply to those cases where, upon an indictment for a felony, including an assault, the jury should acquit on the ground that the felony, although attempted, was not completed. But if such were the intention, the words do not so clearly express it as they ought, as they authorize the jury to convict of assault' on any indictment for felony 'where the crime charged shall include an assault.' These words are so general that they might include any assault, whether at the time of the felony charged or not; and the learned judges have therefore been obliged to put some limitation upon them, and the proper limitation seems to be that which has been put upon them by the very learned Baron in R. v. St. George, namely that the assault must be an assault involved in and connected with the felony charged; and it is submitted that it must be such an assault as is essential to constitute part of the crime charged. A felony including an assault may be said to consist of the assault, the intent to commit the felony, and the actual felony. Thus in robbery there is the assault, the intent to rob, and the actual robbery; and in such a case it is submitted the assault, of which the prisoner may be convicted, must be such an assault as constitutes one step towards the proof of the robbery. Upon this the question arises whether an assault, where the jury negative any intention to commit a felony, is within the section, and it is submitted that it is not, as such an assault cannot be said to be involved in or connected with the felony charged in any manner what

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soever. It is true that an assault is included in the felony but it is an assault coupled with an intent, and if the jury negative the intent, such an intent in no way tends to prove the felony; and it certainly would be a great anomaly if the prisoner were indicted for a felony, and the jury found he had no intention of committing a felony, that he might be sentenced to three years imprisonment and hard labor, while if he had been indicted for the offence of which he was really guilty, he could only be sentenced to three years imprisonment without hard labor R. v. Ellis (8 C. & P, 654), therefore seems deserving of reconsideration, and the more so as it was decided before R. v. Guttridge (9 C. & P. 471), R. v. St. George, (9 C. & P. 483), R. v. Phelps (Gloucester Sum. Ass. M. S. cited 1 Russ. 781). The intention, no doubt, was to punish attempts to commit felonies, including assaults, and it is to be regretted that the provision, instead of being what it is, was not that upon any indictment for felony, if the jury should think that the felony was not completed, they might find the prisoner guilty of an attempt to commit the felony charged in the indictment."

In that case of R. v. Phillips, four persons were indicted for a felony. Three were found guilty of the felony, and one of common assault.

Under s. 36, c. 162, p. 184, ante, common assault is punishable with one year's imprisonment. Under the above sec. 191 of the Procedure Act, an assault found upon an indictment for felony is punishable with five years' impri

sonment.

192. If, upon the trial of any person upon an indictment for robbery, it appears to the jury, upon the evidence, that the accused did not commit the crime of robbery, but that he did commit an assault with intent to rob, the accused shall not, by reason thereof, be entitled to be acquitted, but the jury may find him guilty of an assault