1 noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent.

ARTICLE 258.

BLOWING UP BUILDINGS AND SHIPS WITH INTENT TO INJURE— FOURTEEN YEARS PENAL SERVITUDE.

2 Every one is guilty of felony, and is liable on conviction to fourteen years penal servitude, who, with intent to do any bodily injury to any person, unlawfully and maliciously places or throws any gunpowder or other explosive substance in, into, upon, against, or near any building, ship or vessel, whether or not any explosion takes place, and whether or not any bodily injury is effected.

ARTICLE 259.

ADMINISTERING POISON SO AS TO ENDANGER LIFE OR CAUSE HARM-TEN YEARS PENAL SERVITUDE.

3 Every one is guilty of felony, and is liable upon conviction to ten years penal servitude, who unlawfully and maliciously administers to, or causes to be administered to, or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm.

1 A thing not otherwise noxious may be noxious if administered in excess, but some things are so commonly noxious (arsenic, e.g.) that perhaps the administration even of a quantity too small to do harm might be held to constitute the offence punished by this section if there were an intent to procure miscarriage. See R. v. Cramp, 1880, 5 Q. B. D. 307; also R. v. Isaacs, 1862, L. & C. 220, and R. v. Hennah, 1877, 13 Cox, C. C. 547.

2 24 & 25 Vict. c. 100, s. 30, W.; and see 46 Vict c. 3, Art. 418, post. 3 Ibid. s. 23.

CHAPTER XXVI

1 THE INFLICTION OF BODILY INJURIES NOT AMOUNTING TO FELONY

ARTICLE 260.

MALICIOUS WOUNDING AND SIMILAR ACTS PUNISHABLE WITH FIVE YEARS PENAL SERVITUDE.

EVERY one commits a misdemeanor, and is liable to five years penal servitude, who

(a.) unlawfully and maliciously wounds or inflicts any grievous bodily harm upon any other person either with or without any weapon or instrument;

(b.) or who unlawfully and maliciously administers, or causes to be administered to or taken by any other person, any poison or other destructive or noxious thing with intent to injure, aggrieve, or annoy such person;

(c.) or who unlawfully supplies or procures any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child (5 even if the intention so to use the same exists only in his own mind,

1 Draft Code, Part xviii. ss. 188-202.

2 24 & 25 Vict. c. 100, s. 20. "Maliciously" in this section covers all cases in which a person wilfully and without lawful excuse does that which he knows to be likely to injure another: R. v. Martin, 1881, 8 Q. B. D. 54. It applies to cases in which a man strikes at one person maliciously and wounds another accidentally: R. v. Latimer, 1886, 17 Q. B. D. 359; R. v. Hunt, 1825, 1 Moo. C. C. 93.

3 Ibid. s. 24. An intent to excite sexual passion is within this provision: R. v. Wilkins, 1861, L. & C. 89. This case was not argued, nor were reasons given for the judgment. The facts were that the thing administered was likely to cause and did cause injury and annoyance.

4 Ibid. s. 59. To supply a thing which is not noxious with the intent mentioned is not within the section: R. v. Isaacs, 1862, L. & C. 220. 5 R. v. Hillman, 1863, L. & C. 343.

and is not entertained by the woman whose miscarriage he intends to procure).

(d.)1 or who, being legally liable either as a master or a mistress, to provide for any apprentice or servant necessary food, clothing, or lodging, wilfully and without lawful excuse refuses or neglects to provide the same, or unlawfully and maliciously does, or causes to be done, any bodily harm to such apprentice or servant, so that the life of such apprentice or servant is endangered, or that his health has been or is likely to be permanently injured ;

4

(e.) 2 or who sets any spring-gun, man-trap, or other engine calculated to destroy human life or inflict grievous bodily harm, with the intent that the same or whereby the same may destroy or inflict grievous bodily harm upon a trespasser or other person coming in contact therewith.

Every person is deemed to have set any of the abovementioned engines who, when it has been set by any other person in any place then in or afterwards coming into the possession or occupation of the person first mentioned, permits it to continue so set with the intent aforesaid.

Provided that this clause does not extend to any gin or trap usually set with the intent of destroying vermin, or to any spring-gun, man-trap, or engine, set from sunset or sunrise in a dwelling-house for the protection thereof.

ARTICLE 261.

NEGLIGENT ACTS PUNISHABLE WITH TWO YEARS IMPRISONMENT.

Every one is guilty of a misdemeanor, and liable to two years imprisonment with hard labour,

(a.) 5 who by any unlawful act, wilful omission, or neglect,

1 24 & 25 Vict. c. 100, s. 26.

2 Ibid. s. 31.

3 "Sets or places or causes to be set or placed."

4 The words "or whereby the same " in the corresponding section of the preceding statute 7 & 8 Geo. 4, c. 18 were held, upon demurrer in an action for the value of a dog, not to create an offence where there was no intent. Jordin v. Crump, 1841, 8 M. & W. 782. It seems unlikely that this ruling would now be followed in a criminal prosecution.

524 & 25 Vict. c 100, s. 34.

endangers, or causes to be endangered, the safety of any person conveyed or being in or upon a railway, or aids or assists therein,

1

(b.) 1 or who, having the charge of any carriage or vehicle, by wanton or furious driving or racing, or other wilful misconduct, or by wilful neglect, does or causes to be done any bodily harm to any person whatsoever.

(c.) 2 or who, being an engine-driver, guard, porter, or other servant in the employ of a railway company, is found drunk or committing an offence against the bye-laws of the company, or wilfully, maliciously, or negligently does or omits to do any act whereby the life or limb of any person upon the railway shall or might be injured or the passage of engines, carriages, or trains impeded, or counsels, aids, or assists in such an offence.

1 24 & 25 Vict. c. 100, s. 35. 2 3 & 4 Vict. c. 97, s. 13. This offence is also punishable summarily, when its scope is extended by 5 & 6 Vict. c. 55, s. 17.

CHAPTER XXVII

1 ASSAULTS AGGRAVATED AND COMMON PUNISHABLE ON INDICTMENT

ARTICLE 262.

ASSAULT AND BATTERY AND ASSAULT DEFINED.

AN assault is

(a.) 2 an attempt unlawfully to apply any the least actual 3 force to the person of another directly or indirectly,

(b.) the act of using a gesture towards another giving him reasonable grounds to believe that the person using that gesture meant to apply such actual force to his person as aforesaid,

(c.) the act of depriving another of his liberty,

in either case without the consent of the person assaulted, or with such consent if it is obtained by fraud.

4 It is no defence to a charge or an indictment for an indecent assault on a young person under the age of thirteen to prove that he or she consented to the act of indecency.

A battery is an assault whereby any the least actual force is actually applied to the person of another, or to the dress. worn by him, directly or indirectly.

1 Draft Code, Part xix. ss. 203-6.

2 See Article 43 for a definition of an attempt.

31 Russ. Cr. 956; 1 Hawk. P. C. 100. A most elaborate definition of "force" is given in the Indian Penal Code, s. 350, as the foundation for a definition of assault, s. 351. The definition is almost more mathematical than, legal. It begins thus: "A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other," &c., &c. It is impossible not to ask why, if force is to be defined, motion should be left undefined. It is, I think, hardly too great a demand on the candour of a reader to suppose that he will see that a man who withdraws a chair on which a person is about to sit down, causing him thereby to fall to the ground; or who whips a horse on which he is sitting, and so makes him run away with his rider; or who breaks a hole in ice in front of a skater, and so causes him to fall into the water" applies actual force to his person indirectly."

4 43 & 44 Vict. c. 45, s. 2.