the unlawful wounding should have been done maliciously as well as unlawfully. (y)

Thus the prosecutor and the prisoner were out at night, in separate punts on a creek, in pursuit of wild fowl. The prisoner, who was jealous of any one going there to shoot, and had threatened to fire at birds, notwithstanding other persons might be between him and them, discharged his gun from a distance of twenty-five yards towards the punt, in which the prosecutor lay paddling. At that moment the prosecutor's punt slewed round, and the prosecutor was struck by some of the shot and seriously wounded, whereupon the prisoner rendered him help, assuring him that the injury was an accidental result of the slewing round of the punt. The night was light, and the boat visible fifty yards off. No birds were in view. The two men had always been on good terms, and the gun was fired, apparently, with the intention of frightening the prosecutor away rather than that of hurting him. The prisoner was indicted for the felony of wounding, with intent to do grievous bodily harm, but was found guilty of the misdemeanor of unlawfully wounding, within the above section; and it was held that there was proof of malice which justified the conviction of the prisoner. (z)

The Con. Stats. Can., c. 91, s. 37, applied only to common assaults. (a)

No words of provocation whatever can amount to an assault. (b) To constitute such an assault as will justify moderate and reasonable violence in self-defence, there must be an attempt or offer with force and violence to do a corporal hurt to another, as by striking him with or without a weapon, or presenting a gun at him, at such a distance to which the gun will carry, or pointing a pitchfork at him, standing within reach of it, or by holding up one's fist at

(2) Reg. v. Ward L. R. 1 C. C. R. 356.

(a) Re McKinnon, 2 U. C. L. J. N. S. 328, per A. Wilson, J. (b) The Toronto S. V. A. R. 170.

him, or by drawing a sword, and waving it in a menacing manner. (c)

Where therefore some thirty persons, armed and riotously assembled in front of the plaintiff's house, and apparently in the act of breaking into it, threatened to break into it, and assault, tar, feather and ride the plaintiff on a rail, it was held that though the plaintiff believed they were going to break into his house for this purpose, yet he could not justify shooting at them with a pistol, without warning them to desist and depart, but such request to depart would not have been necessary, perhaps, if the aggressors had been actually advancing upon the plaintiff in the attitude of assaulting him, and still less if any of them had actually struck him. (d)

The law is properly careful to exact that people shall not on the mere apprehension of violence, which is not immediately threatened, resort to desperate means of defence and shed blood without necessity, though there may be considerable provocation and some show of violence, and, generally speaking, it must be left to the jury to ascertain as a question of fact whether the means of resistance adopted were justified by the nature of the attack. (e) If more force and violence be used than necessary to expel a party from a house, after he has been requested, and refused to leave, it cannot be justified. (f) Although a party may lawfully take hold of one who declines to leave his house and put him out, yet he has no right to beat him cruelly, not in order to make him go out, but to punish him for not having done so. (g)

But there is a manifest distinction between endeavoring to turn a person out of a house into which he has entered quietly, and resisting a forcible attempt to enter; in the

(c) The Toronto S. V. A. R. 178-9.

(d) Spires v. Barrick, 14 U. C. Q. B. 424, per Robinson, C. J.

(e) Ibid. 424, per Robinson, C. J.

(f) See Glass v. O'Grady, 17 U. C. C. P. 233.

(g) Ibid. 236, per J. Wilson, J.; Davis v. Lennon, 8 U. C. Q. B. 599.

former case a request to depart is necessary, in the latter not. (h)

Upon an indictment for assaulting a bailiff of a county court, in the execution of his duty, the production of a county court warrant for the apprehension of the prisoner is sufficient justification of the act of the bailiff, in apprehending the prisoner, without proof of the previous proceedings authorizing the warrant. (i)

Moderate correction of a servant or scholar, by his master, is not an assault. But a master has not by law a right to use force in the correction of any servant, but an apprentice. The moderate correction of a servant, who is an infant, may be justified, but the beating of a servant of full age cannot, and will form a sufficient cause or excuse for departure, or for discharge from service by a master, on complaint. Wounding, kicking and tearing a person's clothes do not fall within the scope of moderate correction. (j) School-masters have a right of moderate chastisement against disobedient and refractory scholars; but it is a right which can only be exercised when necessary for the maintenance of school discipline and the interests of education, and to a degree proportioned to the nature of the offence committed. Any chastisement exceeding this limit, and springing from motives of caprice, anger or bad temper, constitutes an offence punishable like ordinary delicts. (k)

On an indictment charging an aggravated assault, or an offence of a higher nature than an assault, but nevertheless including it, the prisoner may be found guilty of a common assault, for it is not necessary that matter of aggravation stated in the indictment should be proved, and, if not proved, the prisoner may be found guilty of the offence without the circumstances of aggravation. () Thus a person, in

(h) Reg. v. O'Neill, 3 Pugsley & B. 49.

(i) Reg. v. Davis, 8 U. C. L. J. 140; L. & C. 64; 30 L. J. (M. C.) 159. (j) Mitchell v. Defries, 2 U. C. Q. B. 430, per McLean, J.

(k) Brisson v. Lafontaine, 8 L. C. J. 173.

(1) Reg. v. Taylor, L. R. 1 C. C. R. 194; 38 L. J. (M. C.) 106.

dicted for inflicting grievous bodily harm and actual bodily harm, may be convicted of a common assault; (m) and a charge of assault and beating would be sustained by proof of an aggravated assault, as the aggravation is merely matter of evidence. (n)

This offence is a misdemeanor (o) and is so punishable. The punishment usually inflicted is fine, imprisonment and sureties to keep the peace. (p) The Court of Quarter Sessions has a general power to fine and imprison in case of assault. (q)

A charge of assaulting a bailiff in the execution of his duty, being a misdemeanor, is triable at the sessions. (~)

An assault may, in certain cases, amount to a capital felony, when, it is apprehended, it could not be tried at the sessions. An assault may be accompanied by violence from which death ensues, and then the offence would be either murder or manslaughter. Or an assault may be accompanied with a violation of the person of a woman against her will, in which case it would be a rape, or though the purpose was not effected, the circumstances might be such as to leave no doubt of an assault with intent to commit a rape, therefore an assault may amount to a capital felony, or a felony, or a misdemeanor, according to the circumstances with which it is accompanied. (s)

Kidnapping. This offence is regulated by the 32 & 33 Vic., c. 20, s. 69. The intent referred to in that section refers to the seizure and confinement in Canada, as well as to kidnapping, and an indictment therefore charging such seizure and confinement, without averring any intent, is defective. (t)

(m) Reg. v. Oliver, 8 U. C. L. J. 55; Bell, 287; 30 L. J. (M. C.) 12; Reg. v. Yeadon, L. & C. 81; 31 L. J. (M. C.) 70.

(n) Re McKinnon, 2 U. C. L. J. N. S. 329, per A. Wilson, J.

(0) See Reg. v. Taylor, L. R. 1 C. C. R. 194.

(p) Ovens v. Taylor, 19 U. C. C. P. 52, per Hagarty, J.; Reg. v. O'Leary, 3 Pugsley, 264.

(q) Ovens v. Taylor, supra, 49.

(r) Reg. v. Caisse, 8 L. C. J. 281.

(8) McCurdy v. Swift, 17 U. C. C. P. 139, per A. Wilson, J.

(t) Cornwall v. Reg. U. C. Q. B. 106.

CHAPTER V.

OFFENCES AGAINST PROPERTY.

Burglary.-Burglary has been defined to be a breaking and entering the mansion house of another in the night, with intent to commit some felony within the same, whether such felonious intent be executed or not. (a)

Both a breaking and entering are necessary to complete the offence, and every entrance into the house, in the nature of a mere trespass, is not sufficient. Thus if a man enter a house by a door or window which he finds open, or through a hole which was made there before, and steal goods, or draw goods out of the house through such door, window, or hole, he will not be guilty of burglary.(b) There must either be an actual breaking of some part of the house, in effecting which more or less actual force is employed, or a breaking by construction of law, where an entrance is obtained by threats, fraud, or conspiracy. (c)

An actual breaking of the house may be by making a hole in the wall; by forcing open the door; by putting back, picking or opening the lock with a false key; by breaking the window; by taking a pane of glass out of the window, either by taking out the nails or other fastening, or by drawing or bending them back, or by putting back the leaf of a window with an instrument, and even the drawing or lifting of a latch. (d)

Where the door is not otherwise fastened, the turning of the key where the door is locked on the inside, or the unloosing

(a) Russ. Cr. 1.

(b) Ibid. 2.

(c) Ibid.

(d) 2 Russ. Cr. 2-3; Rex v. Owen, 1 Lewin, 35, per Bayley, J.; Rex v. Lawrence, 4 C. & P. 231; Rex v. Jordan, 7 C. & P. 432.