keep it in a till under his charge, has no implied authority from the company to give into custody a person whom he suspects has attempted to rob the till, after the attempt has ceased, as such arrest could not be necessary for the protection of the company's property. (t) It would seem that, if a man in charge of a till were to find that a person was attempting to rob it, and he could not prevent him from stealing the property otherwise than by taking him into custody, the person in charge of the till might have an implied authority from his employer to arrest the offender; or if the clerk had reason to believe the money had been actually stolen and he could get it back by taking the thief into custody, and he took him into custody with a view of recovering the property taken away, that also might be within the authority of a person in charge of the till. But there is a marked distinction between an act done for the purpose of protecting the property by preventing a felony or of recovering it back, and an act done for the purpose of punishing the offender for that which has already been done. The person having charge, etc., has no implied authority to take such steps as may be necessary for the purpose of punishing the offender. The principle governing the subject is there is an implied authority to do all those things that are necessary for the protection of property entrusted to a person, or for fulfilling the duty which a person has to perform. (u)

Where a man is himself assaulted by a person disturbing the peace in a public street, he may arrest the offender, and take him to a peace officer to answer for a breach of the peace. (v)

The fact that a party is violently assaulting the wife and child of another is no legal justification for the latter, not

(t) Allen v. L. & S. W. Ry. Co., L. R. 6 Q. B. 65.

(u) Ibid. 68-9, per Blackburn, J.

(v) Forrester v. Clarke, 3 U. C. Q. B. 151.

being a peace officer, breaking into the house of the former in order to prevent the breach of the peace. (w)

The prisoner assaulted a police constable in the execution of his duty. The constable went for assistance and, after an interval of an hour, returned with three other constables, when he found that the prisoner had retired into his house, the door of which was closed and fastened; after another interval of fifteen minutes, the constable forced open the door, entered and arrested the prisoner, who wounded one of them in resisting his apprehension. It was held that as there was no danger of any renewal of the original assault, and as the facts of the case did not constitute a fresh pursuit, the arrest was illegal. (a)

A person unlawfully in another's house, and creating a disturbance and refusing to leave the house, may be forcibly removed, but, if he had not committed an assault, the circumstances do not afford a justification for giving him into the custody of a policeman. (y)

In all cases above mentioned, if the officer has not a legal authority or executes it in an improper manner, the offence will be manslaughter only. But if there is evidence of express malice it will amount to murder. (2) So ignorance of the character in which the officer is acting will reduce the offence to manslaughter. But if a constable command the peace or show his staff of office, this, it seems, is a sufficient intimation of his authority (a)

Where the fact of killing is proved, the defendant may rebut the presumption of malice arising therefrom, by proving that the homicide was justifiable or excusable.

Justifiable homicide is of three kinds:-1. Where the proper officer executes a criminal in strict conformity with his sentence. 2. Where an officer of justice, or other person

(w) Rockwell v. Murray, 6 U. C. Q. B. 412; Handcock v. Baker, 2 B. & P. 262.

(x) Reg. v. Marsden, L. R. 1 C. C. R. 131; 37 L. J. (M. C.) 80. (y) Jordan v. Gibbon, 3 F. & F. 607.

(z) Arch. Cr. Pldg. 645-6.

(a) Ibid. 645; and see Rex v. Higgins, 4 U. C. Q. B. O. S. 83.

acting in his aid in the legal exercise of a particular duty, kills a person who resists or prevents him from executing it. 3. Where the homicide is committed in prevention of a forcible and atrocious crime, as, for instance, if a man attempts to rob or murder another and be killed in the attempt, the slayer shall be acquitted and discharged. (b)

Excusable homicide is of two kinds :-1. Where a man doing a lawful act, without any intention of hurt, by accident kills another, as, for instance, where a man is working with a hatchet, and the head by accident flies off and kills a person standing by. This is called homicide per infortunam or by misadventure. 2. Where a man kills another, upon a sudden encounter, merely in his own defence, or in defence of his wife, child, parent, or servant, and not from any vindictive feeling, which is termed homicide se defendendo, or in self-defence. (c)

The 32 & 33 Vic., c. 20, s. 7, provides that no punishment or forfeiture shall be incurred by any person who kills another by misfortune, or in his own defence, or in any other manner, without felony.

Concealing Birth.-The 32 & 33 Vic., c. 20, sec. 62, repeals the 21 Jac. I.; and sec. 61 of the same statute enacts that if any woman is delivered of a child, every person who, by any secret disposition of the dead body of the said child, whether such child died before, at, or after its birth, endeavors to conceal the birth thereof, is guilty of a misde

meanor.

A secret disposition, under this Act, must depend upon the circumstances of each particular case; and the most complete exposure of the body might be a concealment, as, for instance, if the body were placed in the middle of a moor in the winter, or on the top of a mountain, or in any other secluded place, where it would not likely be found. The

(b) Arch. Cr. Pldg. 623,

(c) Ibid. 623.

jury must, in each case, say whether or no the facts show that there has been such a secret disposition. (d)

The conduct of the prisoner, such as the denial on her part that she has had a child, is important as showing the intent with which a concealment, otherwise questionable was made. (e)

If a woman endeavor to conceal the birth of her child by placing the dead body under the bolster of a bed, and laying her head partly over the body, intending to remove it to some other place when an opportunity offers, it is an offence within 9 Geo. IV., c. 31, s. 14. (ƒ)

Abortion. This offence is now regulated by the 32 & 33 Vic., c. 20, ss. 59 and 60. Upon an indictment for causing abortion, it was proved that the woman requested the prisoner to get her something to procure miscarriage, and that the drug was both given by the prisoner, and taken by the woman, with that intent, but the taking was not in the presence of the prisoner. It produced a miscarriage. The court held that a conviction upon the facts above was right, and that there an "administering and causing to be taken," within the statute, though the prisoner was not present at the time. (g)

was

What is a "noxious thing" within the statute, depends on the circumstances of each particular case. In one case, evidence that quantities of oil of juniper, considerably less than half an ounce, are commonly taken medicinally without any bad results, but that a half ounce produces ill effects, and is to a pregnant woman dangerous, was held sufficient from which a jury might infer that the latter quantity was a "noxious thing" within the statute. (h)

(d) Reg. v. Brown, L. R. 1 C. C. R. 246-7; 39 L. J. (M.C.) 94, per Bovill, C. J.; Reg. v. Piché, 30 U. C. C. P. 409.

(e) Reg. v. Piché, 30 U. C. C. P. 409.

(f) Reg. v. Perry, 1 U. C. L. J. 135; Dears. 471; 24 L. J. (M. C.) 137. (g) Reg. v. Wilson, 3 U. C. L. J. 19; Dears. & B. 127; 26 L. J. (M. C.) 18; see also Reg. v. Farrow, Dears. & B. 164.

(h) Reg. v. Cramp, L. R. 5 Q. B. D. 307.

N

And where it was in evidence that oil of savin in any dose would be most dangerous to give to a pregnant woman; that the prisoner, with intent to procure abortion, had supplied a woman in that condition with a bottle of Sir. James Clarke's female pills, containing about four grains of that drug, and that such a quantity would be very irritating: the court held that there was a supplying of a "noxious thing." (i)

Rape. This offence has been defined to be the having unlawful and carnal knowledge of a woman by force, and against her will. (j)

Upon an indictment for rape, there must be some evidence that the act was without the consent of the woman, even where she is an idiot. Where there is no appearance of force having been used to the woman, and the only evidence of the connection is the prisoner's own admission, coupled with the statement that it was done with her consent, there is no evidence for the jury. ()

It was formerly held that, where the woman consents to the connection, through the fraud of the ravisher, the act does not amount to rape; (1) but the soundness of this doctrine has lately been questioned in England, and seems inconsistent with the modern doctrines to con

sent in criminal law in general. The following proposition, it is submitted, correctly sets out the law on the subject: Where a person does or acquiesces in an act through a misapprehension of the nature of that act, or of the circumstances attending it, and that misapprehension is either induced by the prisoner, or the prisoner, knowing the mistake under which the other is laboring, takes advantage of that mistake, there is no consent in law, but that quality of crime is to be imputed to the prisoner of which he would have been guilty had he done the act against the expressed will of the other.

(i) Reg. v. Stitt, 30 U. C. C. P. 30.

(j) Russ. Cr. 904.

(k) Reg. v. Fletcher, L. R. 1 C. C. R. 39; 35 L. J. (M. C.) 172. (1) Reg. v. Barrow, L. R. 1 C. C. R. 156; 38 L. J. (M. C.) 20.