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A verdict for common assault is maintainable upon an indictment under this section. R. v. Bissonnette (1879), Ramsay's Cases (Que.) 190.

Neglect to supply necessary food, etc.]-See sec. 243.

Permanently injured.]—It is purely a question of fact whether the acts proved shew that the health is likely to be permanently injured; and the words "permanently injured" have no technical meaning as here used. R. v. Bowman (1898), 3 Can. Cr. Cas. 410.

Homicide.

250. Homicide is the killing of a human being by another, Definition. directly or indirectly, by any means whatsoever. 55-56 V., c. 29, s. 218.

Classes of homicide.]-Homicide, when not amounting to murder or manslaughter, is divided by Russell into two classes:-(1) Excusable; (2) Justifiable. 3 Russell Cr., 6th ed., 205.

Section 252, infra, divides the subject of homicide into: (1) culpable homicide, which is sub-divided into two classes: (a) murder, (b) manslaughter; (2) homicide not culpable. The same section defines what is "culpable" homicide, and declares that homicide which is not culpable is not an offence. Excusable homicide is said to be of two sorts: Either per infortunium, by misadventure: or se et sua defendendo, upon a principle of self-defence.

Excusable homicide.]-The term excusable homicide imports some fault in the party by whom it has been committed; but of a nature so trivial that the law excuses such homicide from the guilt of felony, though in strictness it deems it to be deserving of some degree of punishment. 3 Russell Cr., 6th ed., 205, 4 Bl. Com. 188.

Matters of justification or excuse.]-Not only are the rules and principles of the common law preserved as regards any circumstances which either justify or excuse the act or constitute a defence to a charge (Code sec. 16), but various rules are laid down in Part I. of the Code, secs. 17 to 68 inclusive upon the subject.

Homicide by misadventure.]—Homicide by misadventure is where one doing a lawful act, without any intention of bodily harm, and using proper precaution to prevent danger, unfortunately happens to kill another person. 1 East P.C. 5. p. 221, and sec. 36, pp. 260, 261, Fost. 258, 1 Hawk. P.C., ch. 29, sec. 1. The act must be lawful; for if it be unlawful, the homicide will amount to murder or manslaughter, and it must not be done with intention of great bodily harm, for then the legality of the act, considered abstractedly, would be no more than a mere cloak or pretence, and consequently would avail nothing. The act must also be done in a proper manner and with due caution to prevent danger. 1 East P.C., ch. 5, sec. 36, p. 261; 3 Russell 206.

This, if people following their common occupations, use due caution to prevent danger, and nevertheless happen, unfortunately to kill any one, such killing will be homicide by misadventure. 1 Hale 472, 475, 1 Hawk. P.C. ch. 629, secs. 2 and 4. Thus, where a person, driving a cart or other carriage happens to drive over another and kill him, if the accident happened in such a manner that no want of due care could be imputed to the driver, it will be accidental death, and the driver will be excused. Fost. 263, 1 Hale 476. In a case where a person was riding a horse, and the horse, being whipped by some other person sprang out of the road, and ran

When a child be

comes a human being.

Killing child.

Homicide when culpable.

Offence.

No offence.

over a child and killed it, this was held to be misadventure only in the rider, though manslaughter in the person who whipped the horse. 1 Hawk. P.C., ch. 29, sec. 3.

Where parents, masters, and other persons having authority in foro domestico, give correction to those under their care, and such correction exceeds the bounds of due moderation, so that death ensues, the offence will be either murder or manslaughter, according to the circumstances; but if the correction be reasonable and moderate, and by the struggling of the party corrected, or by some other misfortune, death ensue, the killing will be only misadventure. 1 Hale 454, 473, 474, 4 Blac. Com. 182.

Insanity as a defence.]-See sec. 19.

Homicide in self-defence.]-See secs. 85-62.

Homicide by surgical operation.]-See sec. 65.

251. A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not.

2. The killing of such child is homicide when it dies in consequence of injuries received before, during or after birth. 5556 V., c, 29, s. 219.

Killing unborn child.]—A living child in its mother's womb or a child in the act of birth, even though such child may have breathed, is not a "human being," and the killing of such a child before it is born is not homicide. R. v. Enoch, 5 C. & P. 539; R. v. Wright, 9 C. & P. 754; R. v. Sellis, 7 C. & P. 850; Burb. Cr. Dig. 209.

But by sec. 306 every one is guilty of an indictable offence and liable to imprisonment for life who causes the death of any child which has not become a human being, in such a manner that he would have been guilty of murder if such child had been born. And by sub-sec. (2) of the same section no one is guilty of any offence who by means which he in good faith considers necessary for the preservation of the life of the mother of the child causes the death of any such child before or during its birth.

252. Homicide may be either culpable or not culpable. 2. Homicide is culpable when it consists in the killing of any person, either by an unlawful act or by an omission, without lawful excuse, to perform or observe any legal duty, or by both combined, or by causing a person, by threats or fear of violence, or by deception, to do an act which causes that person's death, or by wilfully frightening a child or sick person. 3. Culpable homicide is either murder or manslaughter. 4. Homicide which is not culpable is not an offence. 55-56 V., c. 29, s. 220.

Code secs. 247 and 252 do not extend the criminal responsibility of corporations beyond what it was at common law. R. v. Great West Laundry Co. (1900), 3 Can. Cr. Cas. 514 (Man.). See note to sec. 247.

Murder.]-Circumstances under which culpable homicide is murder are set out in secs. 259 and 260.

Manslaughter.]-Culpable homicide not amounting to murder is manslaughter, (sec. 262), and the circumstances which reduce to manslaughter or homicide which otherwise would be murder are stated in sec. 261.

253. Procuring by false evidence the conviction and death Procuring of any person by the sentence of the law shall not be deemed death by to be homicide. 55-56 V., c. 29, s. 221.

Perjury or subornation of perjury committed in order to procure the conviction of a person for any crime punishable by death is a crime punishable with imprisonment for life. Section 174 (2).

false evidence.

254. No one is criminally responsible for the killing of Death withanother unless the death takes place within a year and a day of in a year and a day. the cause of death.

2. The period of a year and a day shall be reckoned inclusive How of the day on which the last unlawful act contributing to the reckoned. cause of death took place.

3. Where the cause of death is an omission to fulfil a legal Idem. duty the period shall be reckoned inclusive of the day on which such omission ceased.

4. When death is in part caused by an unlawful act and in Idem. part by an omission, the period shall be reckoned inclusive of the day on which the last unlawful act took place or the omission ceased, whichever happened last. 55-56 V., c. 29, s. 222.

At common law.]-If the death takes place after the expiration of a year and a day from the time the deceased was wounded, the law pre sumes that his death had proceeded from some other cause. I Hawk., ch. 23, sec. 90; 1 East P.C. 343.

The prisoner was convicted of manslaughter in killing his wife, who died on November 10, 1881. The immediate cause of her death was acute inflammation of the liver, which the medical testimony proved might be oc casioned by a blow or a fall against a hard substance. About three weeks before her death the prisoner had knocked his wife down with a bottle; she fell against a door and remained on the floor insensible for some time; she was confined to her bed soon afterwards and never recovered. Evidence was given of frequent acts of violence committed by the prisoner upon his wife within a year of her death, by knocking her down and kicking her in the side. On questions reserved, whether the evidence was properly received of assaults and violence committed by the prisoner upon the deceased prior to the date of death or prior to the occasion on which he had knocked her down with the bottle, and whether there was any evidence to leave to the jury to sustain the charge, it was held by the Supreme Court of Canada, affirming the judgment of the Supreme Court of New Brunswick, that the evidence was properly received and that there was evidence to submit to the jury that the disease which caused her death was produced by the injuries inflicted by the prisoner. Theal v. The Queen, 7 Can.

S.C.R. 397.

Killing by influence on the mind.

Acceleration of death.

Death

which

might

have been prevented.

Causing injury the treatment

255. No one is criminally responsible for the killing of another by any influence on the mind alone, nor for the killing of another by any disorder or disease arising from such influence, save in either case by wilfully frightening a child or sick person. 55-56 V., c. 29, s. 223.

To wilfully frighten a child or sick person as a result of which such child or sick person dies is culpable homicide. Section 252.

256. Every one who, by any act or omission, causes the death of another, kills that person, although the effect of the bodily injury caused to such other person be merely to accelerate his death while labouring under some disorder or disease arising from some other cause. 55-56 V., c. 29, s. 224.

A., a practising physician who kept a hospital for the sick, on three successive days forced the person of B. a patient then under his control in such hospital, she being in a condition of health that rendered sexual intercourse dangerous even with her consent. B. died on the sixth day after the last occasion on which she had been ravished and her death was hastened if not caused thereby. It was held that there was sufficient evidence to justify A.'s surrender under the Ashburton treaty for extradition on a charge of murder. Re Weir, 14 Ont. R. 389.

A. inflicts bodily injury on B. who at the time is so ill that she could not possibly have lived more than six weeks if she had not been struck. In consequence B. dies earlier than she otherwise would. A. is guilty of culpable homicide. R. v. Fletcher, 1 Russ. Cr. 703.

257. Every one who, by any act or omission, causes the death of another, kills that person, although death from that cause might have been prevented by resorting to proper means. 55-56 V., c. 29, s. 225.

258. Every one who causes a bodily injury, which is of. itself of a dangerous nature to any person, from which death results, kills that person, although the immediate cause of death brings death. be treatment proper or improper applied in good faith. 55-56 V., c. 29, s. 226.

of which

Bodily injury resulting in death.]-In R. v. Holland, 2 Moo, and Rob. 351, A. had assaulted B. and injured B.'s finger. B. was advised by a surgeon to allow it to be amputated but refused to do so, and lockjaw resulted causing B.'s death. It was held that these facts constituted culpable homicide. But quære whether this would be so under this section, as it could hardly be said that an injury to the finger was "of itself of a dangerous nature," i.e., dangerous to life. Cf. R. v. Coventry (1898), 3 Can. Cr. Cas. 541.

Where in a duel a wound is given which in the judgment of competent medical advisers is dangerous. and the treatment which they bonâ fide adopt is the immediate cause of death, the party who inflicted the wound is guilty of culpable homicide. R. v. Pym, 1 Cox C.C. 339.

But if a man were wounded, and another applied to his wound sulphurie acid or something else which was of a dangerous character, and ought not to be applied, and which led to fatal results, then the person who applied this remedy would be answerable, and not the person who inflicted the wound, because a new cause had supervened. Reg. v. Markuss, 4 F. & F. 356.

Murder and Manslaughter.

259. Culpable homicide is murder,—

(a) if the offender means to cause the death of the person killed;

(b) if the offender means to cause to the person killed any bodily injury which is known to the offender to be likely to cause death, and is reckless whether death ensues or not; (c) if the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed;

(d) if the offender, for any unlawful object, does an act which he knows or ought to have known to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting 55-56 V., c. 29, s. 227.

any one.

Murder at common law.]—The common law definition of murder is— the killing any person under the King's peace, with malice prepense or aforethought, either express or implied by law. 3 Inst. 47, 51; i Hawk. P.C. ch. 31, sec. 3; Fost. 256.

Malice may be either (1) express, or (2) implied by law. Express malice is when one person kills another with a sedate deliberate mind and formed design; such formed design being evidenced by external circumstances discovering the inward intention, as lying in wait, antecedent menaces, former grudges, and concerted schemes to do the party some bodily harm. 1 Hale 451.

Malice is implied by law from any deliberate cruel act committed by one person against another, however sudden. 1 East P.C. 215; 3 Russell Crim. (1896), 2. And it is a general rule that all homicide is presumed to be malicious until the contrary appears from circumstances of alleviation, excuse or justification. R. v. Greenacre (1837), 8 C. & P. 35.

Provocation reducing offence to manslaughter.]-See sec. 261 and note to same.

Corpus delicti.]-Corpus delicti in murder, is defined, as having two components, death as the result and the criminal agency of another as the means, and it is only where there is direct proof of one that the other can be established by circumstantial evidence. This ruling is an affirmance of the holding of Lord Hale (2 P.C. 290) that a conviction of murder or manslaughter cannot be had unless the fact be proved to be done or at least the body found dead. Where one is proven by direct evidence the other may be by circumstances, and in determining a question of fact upon

13-CRIM. CODE.

Intention.

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