to tell the officer that this is the man he wants is no battery. If the injury committed were accidental and undesigned it will not amount to a battery. (a)

Where A., without any hostile intention, pulled the arm of B., the superintendent of a fire-brigade, the moment the latter was engaged in directing the hose of the engine against a fire, for the purpose of calling his attention to an observation with respect to the effect of the water upon the flames:-Held, that this was not such an assault as would justify B. in giving A. into the custody of a policeman. (b) There can be no assault where the party consents to the act done (c)

On an indictment that the prisoner, in and upon one D., a girl above the age of ten years, and under the age of twelve years, unlawfully did make an assault, and her, the said D., did then unlawfully and carnally know and abuse against the form of the statute, etc. The offence of carnally knowing the girl was disproved, but there was evidence of an assault of an indecent and very violent character, which was left to the jury, who found the prisoner guilty of a common assault, and the question was whether they could properly do so upon this indictment :-Held, that the prisoner was properly convicted of a common assault, on the ground that the indictment charged two distinct misdemeanors, namely, an assault at common law, and the statutory offence of unlawfully and carnally knowing and abusing the girl; that there being a distinct charge of an assault in the indictment, the prisoner might be convicted of it though the indictment also contained a charge of a more serious offence,

(a) Puss. Cr. 1025.

(b) Coward v. Baddeley, 5 U. C. L. J. 262; 4 H. & N. 478; 28 L. J. (Ex.) 260. (e) Reg. v. Guthrie, L. R. 1C. C. R. 243; 39 L. J. (M. C.) 95, per Bovill, C. J.; and see Reg. v. Beale, ib. 12, per Pollock, C. B.; Reg. v. Connolly, 26 U. C. Q. B. $20, per Hagarty, J.

consequently the prisoner might be found guilty of either offence. (a)

The prisoner was found guilty at the Quarter Sessions, on an indictment charging that she, on, etc., in and upon one B., in the peace of God and of our Lady the Queen, then being, unlawfully did make an assault and him, the said B., did beat and ill-treat with intent him, the said B., feloniously, wilfully, and of her malice aforethought, to kill and murder, and other wrongs to the said B. then did to the great damage of the said B., against the form of the statute in such case made and provided and against the peace, etc. A count was added for common assault The evidence shewed an attempt to murder, but it was moved, in arrest of judgment, that the Sessions had no jurisdiction, for that it was a capital crime within the Con. Stats. Can., c, 91, s. 5-Held, that the indictment did not charge a capital offence under that section, nor an offence against any statute, but charged in each count an offence at common law, rejecting from the first count the words "contrary to the statute" as surplusage, and any other words which were insufficient to sustain a prosecution for felony under any statute, and that the conviction might be sustained as for an assault at common law. (b)

Using insulting and abusive language to a person in his own office and on the public street, and using the fist in a threatening and menacing manner to the face and head of a person, amounts to an assault. (c) A conductor on a train is not liable for an assault, under the Con. Stats. Can., c. 66. s. 106, in attempting to put a person off the cars who refuses, after being several times requested, to pay his proper fare; the conductor, in en

(a) Reg v. Guthrie, L. R. 1 C. C. R. 241.

(b) Reg. v. M'Evoy, 20 U. C. Q. B. 344.

(e) Reg. v. Harmer, 17 U. C. Q. B. 555; Stephens v. Meyers, 4 C. & P. 350.

deavouring to put the person off, being successfully resisted, and the person paying his proper fare on the conductor summoning others to his aid. (a)

The 32 & 33 Vic., c. 29, s, 51, provides that on the trial of any person for any felony whatever, where the crime charged includes an assault against the person, the jury may acquit of the felony and find a verdict of guilty of assault against the person indicted, if the evidence warrants such finding. It is quite clear that this section only authorizes a verdict of guilty of assault, when it is included in, and forms parcel of, the felony charged in the indictment. The words "crime charged" mean the crime charged as felony in the indictment for the enactment only takes effect upon an acquittal, and the assault, to fall within the Act, must be an integral part of the felony charged. (b)

On an indictment for murder the jury found the prisoner guilty of an assault only, and that such assault did not conduce to the death of the deceased :—Held, that the prisoner, under such finding, could not be convicted of the assault, under the (N. B.) 1 Rev. Stat. c. 149, s. 20, which authorizes a conviction of an assault, on a trial for murder, or manslaughter, or any felony including an assault. (c)

Where the prisoners were indicted for murder, and the medical testimony shewed burning to be the direct and only cause of the death, but there was no evidence to connect any of the prisoners with the burning, it was held that the prisoners could not be convicted of an assault, under the 32 & 33 Vic., c. 29, s. 51, for, although an

(a) Reg. v. Faneuf, 5 L. C. J. 167.

(b) Reg. v. Dingman, 22 U. C. Q. B. 283; Reg. v. Bird, 2 Den. C. C. 94. (c) Reg. v. Cregan, 1 Hannay 36; and see Reg. v. Ryan, ib. 119, per Ritchie, C. J.

assault was proved, there was no evidence to shew that it conduced to the death. (a)

Nor is this rule altered by the provision in the statute that there may be a conviction of assault, "although an assault be not charged in terms," for the statute in substance places the concise form of indictment for murder or manslaughter on the same footing as if the death were charged by means of a personal assault. (b)

It has been held, under the Con. Stats. Can., c. 99, s. 66, that there could be no conviction for an assault, unless the indictment charged an assault in terms, or a felony necessarily implying an assault. (c)

Now, however, s. 51 seems to amend the Con. Stats., and it is apprehended that under it there may be a conviction of assault, though not charged in terms. It would seem that in the cases of murder by violence, rape, robbery, stabbing and the like, being all crimes which necessarily include an assault, a prisoner, if acquitted of the felony, can clearly be convicted of an assault, under this section, if the assault was included in and conduced to the felony; and as the charge of either of these offences necessarily includes a charge of assault, he could be so convicted even, before the recent Act, without any charge of an assault in terms. But when we take murder and manslaughter, the bare charge of which does not show an assault, the prisoner may now be convicted of an assault under the recent Act though not charged in terms, if the evidence shews an assault committed, in attempting to commit the felony charged, or as parcel thereof.

But you

cannot bring a case within this Act, by aver

(a)_Reg. v. Ganes, 22 U. C. C. P. 185; following Reg. v. Bird, 2 Den. C. C. 94; Reg. v. Dingman, 22 U. C. Q. B. 283.

(b) Reg. v. Ganes, supra.

(c) Reg. v. Dingman, supra.

R

ring an assault in the indictment which is not included in, and parcel of, the felony charged. There can be no conviction of an assault, unconnected with the felony charged. The Act only dispenses with an express allegation of an assault; where the felony is of such a na ture, that the mere charge of it is not also a charge of an assault. (a)

Shooting with intent to murder involves an assault. (b) By the (N. B.) 12 Vic., c. 29, "whosoever shall maliciously by any means, manifesting a design to cause grievous bodily harm, attempt to cause grievous bodily harm to any other person, whether any bodily harm be caused to such person or not, shall be guilty of felony." An indictment charging the prisoner, with having maliciously assaulted J. M. and cut him with a knife, with intent to do him grievous bodily harm, concluding contra formam statuti, was held bad, for the means used were not set out with such particularity, as necessarily to manifest the design, which constituted the felony, and there was no allegation following the words of the Act:-Held, also that the conviction could not stand for an assault as the Act did not apply, where the indictment was defective, but where the evidence proved an assault under circumstances, not amounting to felony. (c)

If the indictment does not charge a felony, including an assault, the prisoner cannot be convicted of an assault under art. 17 (d)

Upon an indictment containing counts for assaulting and maliciously inflicting grievous bodily harm, and a count for a common assault, after evidence of grievous injuries inflicted by the prisoner, the Judge told the

(a) See Reg. v. Dingman, 22 U. C. Q. B. 283; Reg. v. Bird, 2 Den. C. C. 94. (b) Reg. v. Reno and Anderson, 4 U. C. P. R. 296, per Draper, C. J. (c) Reg. v. Magee, 2 Allen, 14.

(d) Ib.