by the laws of the province in which the conviction takes place, any such loose, idle or disorderly person may, instead of being committed to the common gaol or other public prison, be committed to any house of industry or correction, alms house, workhouse or reformatory prison."

Imprisonment in default of fine.]—A recorder has no right in condemning the accused to pay a fine and costs for vagrancy and to imprisonment in case of non-payment, to impose as a condition of the discharge of the accused at the expiry of the fixed term of imprisonment the payment of such costs and of the expenses of conveyance to gaol, and such conviction will be quashed on certiorari.

Semble, a conviction containing an adjudication so far in excess of that which might lawfully have been imposed will not be amended upon certiorari. Leonard v. Pelletier, 9 Can. Cr. Cas. 19 (Que.).

PART VI.

OFFENCES AGAINST THE PERSON AND REPUTATION.

Interpretation.

Definitions.

240. In this Part, unless the context otherwise requires,
(a) form of marriage' includes any form either recognized 'Form of
as a valid form by the law of the place where it is gone marriage.'
through, or which, though not so recognized, is such that

a marriage celebrated there in that form is recognized as
binding by the law of the place where the offender is tried;

(b) 'guardian' includes any person who has in law or in ‘Guardian.' fact the custody or control of any child referred to;

(c) 'abandon' or 'expose' includes a wilful omission to 'Abandon.' take charge of any child referred to on the part of a per- 'Expose.' son legally bound to take charge of such child, as well as any mode of dealing with it calculated to leave it exposed to risk without protection. 55-56 V., c. 29, ss. 216 and 275; 63-64 V., c. 46, s. 3.

Duties Tending to the Preservation of Life.

241. Every one who has charge of any other person unable Duty of perby reason either of detention, age, sickness, insanity or any son in other cause, to withdraw himself from such charge, and unable charge to provide to provide himself with the necessaries of life, is, whether such necessaries charge is undertaken by him under any contract, or is imposed of life. upon him by law, or by reason of his unlawful act, under a legal duty to supply that person with the necessaries of life, and is criminally responsible for omitting, without lawful Criminal reexcuse, to perform such duty if the death of such person is sponsibility. caused, or if his life is endangered, or his health has been or is likely to be permanently injured, by such omission. 55-56 V., c. 29, s. 209.

Preservation of life.]-Sections 241 and 242 appear in the Code under the heading of "Duties Tending to the Preservation of Life." As such headings have the same effect as preambles to statutes, the terms "necessaries of life." and "necessaries" which occur in the respective sections, mean, when read in connection with the heading mentioned, such neces

saries as tend to preserve life, and not necessaries in their ordinary legal sense. R. v. Brooks (1902), 5 Can. Cr. Cas. 372, 9 B.C.R. 13.

Parents' neglect to supply medical aid to child.]-The leading English case on this subject is R. v. Senior, [1899] 1 Q.B. 283, 68 L.J.Q.B. 175, referred to in the above judgment. It was there held that a person who has the necessary means to procure medical aid for a child in his care or charge, who is, to the knowledge of such person, in a dangerous state of health, and for whom medical aid and medicine are such essential things that reasonably careful persons would have provided them for children in their care, is bound to do so. It is no excuse that the accused believed that to call in medical aid would be wrong as being contrary to the teachings of the Bible or as shewing want of faith in the Deity. If the death of the child was caused or accelerated by the neglect, the accused is guilty of manslaughter. R. v. Senior, [1899], 1 Q.B. 283; R. v. Instan, [1893] 1 Q.B. 450, 17 Cox C.C. 602; Code section 256. There must, however, be positive evidence that the death was caused or accelerated by the neglect to provide medical aid. R. v. Morby (1881), 8 Q.B.D. 571. In the last mentioned case the prisoner had been convicted of the manslaughter of his son, a child of tender years. The child died of smallpox, and the prisoner though able to do so did not supply medical aid, owing to his being one of the Peculiar People, a sect which holds religious objections to so doing, the members believing that diseases are to be cured by prayer and anointing with oil. It was proved that proper medical aid might possibly have saved or prolonged the child's life, and would have increased its chance of recovery, but that it might have been of no avail, and there was no positive evidence that the death was caused or accelerated by the neglect to provide medical aid. It was held that under the circumstances the conviction could not be sustained. R. v. Morby (1881), 8 Q.B.D. 571, 51 L.J.M.C. 85.

A presumption that the prisoner was, at the time of the neglect which caused or accelerated the death, possessed of sufficient means to have provided food and medicine is raised by proof of possession by her of such means at a certain date prior to the date of the neglect as, having regard to the circumstances, would presumably not be exhausted at the date of the neglect, and affords evidence to go to the jury of actual possession of means at the date of such neglect. Rex v. Ellen Jones (1901), 19 Cox C.C. 678, per Kennedy, J., at Worcestershire Assizes.

Medical attendance and remedies are necessaries within the meaning of Code sections 209 and 210 and also at common law, and that anyone legally liable to provide such is criminally responsible for neglect to do so. R. v. Brooks (1902), 5 Can. Cr. Cas. 372, 9 B.C.R. 13; R. v. Lewis (1903), 7 Can. Cr. Cas. 261, 6 O.L.R. 132. Conscientious belief that it is against the teachings of the Bible and therefore wrong to have recourse to medical attendance and remedies is no excuse. Ibid.

At common law.]—If a person having the care and custody of another who is helpless, neglects to supply him with the necessaries of life and thereby causes or accelerates his death, he was guilty of a criminal offence even before the statute. R. v. Nasmith (1877), 42 U.C.Q.B. 242. But if a person over the age of sixteen (see section 243) and having the exercise of free will, chooses to stay in a service where bad food and lodging are provided and death is thereby caused, the master is not criminally liable. R. v. Charlotte Smith, 10 Cox 94.

If the neglect was premeditated and there has been a deliberate omis. sion to supply food to the helpless person in the custody or charge of the accused and death results from the omission, it is murder. R. v. Condé, 10 Cox C.C. 547; R. v. Bubb, 4 Cox C.C. 457; R. v. Self, 1 Leach 137.

If a grown-up person chooses to undertake the charge of a human

creature, helpless either from infancy, simplicity, lunacy or other infirmity, he is bound to execute that charge without wicked negligence; and if a person who has chosen to take charge of a helpless creature lets it die by wicked negligence that person is guilty of manslaughter. R. v. Nicholls, 13 Cox C.C. 75. In such a case mere negligence will not establish the offence of manslaughter; there must be a wicked negligence, that is, negligence so great as to satisfy a jury that the prisoner had a wicked mind in the sense that he was reckless and careless whether the creature died or not. Ibid., per Brett, J.

If the death of an apprentice labouring under disease is caused by want of care of and harsh treatment by the master who has charge of him the master is guilty of murder. R. v. Squire, 3 Russ. Cr. 6th ed. 13.

The master is not bound to provide medicine and attendance on his servant while such servant remains under his roof as part of the family. Winnall v. Adney, 3 B. & P. 247; unless in the case of an apprentice. R. v. Stokes, 8 C. & P. 153.

A young unmarried woman being about to be confined returned to the house of her mother and stepfather. There she was taken in labour during her stepfather's absence, and the mother did not take ordinary care to procure the assistance of a midwife though she could have got one had she wished to do so. In consequence of such want of assistance the daughter died in her confinement. There was no evidence that the mother had any means of paying for the midwife's services. It was held under these circumstances that there was no legal duty on the part of the mother to call in a midwife and consequently there was no such breach of duty as to render her liable to be convicted of manslaughter. R. v. Shepherd, L. & C. 147, 31 L.J.M.C. 102.

Quebec law.]-The Civil Code of Quebec, article 166, enacts that: "Children are bound to maintain their father, mother, and other ascendants, who are in want."

Necessaries for wife or child.]-See sec. 242.

Servants or apprentices under sixteen years.]-See sec. 243.

Permanently injured.]—See note to sec. 242.

Punishment.]-For murder, see sec. 263; manslaughter, sec. 268; other cases of neglect under sec. 241, three years' imprisonment, sec. 244.

242. Every one who as parent, guardian or head of a Duty of family is under a legal duty to provide necessaries for any head of child under the age of sixteen years is criminally responsible family to provide for omitting, without lawful excuse, to do so while such child necessaries. remains a member of his or her household, whether such child

is helpless or not, if the death of such child is caused, or if his life is endangered, or his health is or is likely to be permanently injured, by such omission.

2. Every one who is under a legal duty to provide neces- Criminal saries for his wife, is criminally responsible for omitting, responsiwithout lawful excuse so to do, if the death of his wife is bility. caused, or if her life is endangered, or her health is or is likely to be permanently injured, by such omission. 55-56 V., c. 29, s. 210.

Head of a family.]-A person who engages the services of a child under sixteen years, placed out with him by his legal guardian under a contract for the child's services for a fixed period, whereby the party with whom he is placed engages to furnish the child with board, lodging, clothing, and necessaries, is not as to such child a "guardian or head of a family" so as to become criminally responsible as such, under section 242, for omitting to provide "necessaries" to such child while a member of his household. The relationship in such case is that of master and servant, and comes within the provisions of section 243, under which the master is criminally responsible only in respect of a failure to provide "necessary food, clothing, or lodging." R. v. Coventry, 3 Can. Cr. Cas. 541. Section 243 of the Code does not impose a criminal responsibility upon the master to provide the servant with medical attendance or medicine.

Without lawful excuse.]—It must be shewn that the parent or guardian was in the actual possession of means to provide for the child. R. v. Saunders, 7 C. & P. 277; R. v. Edwards, 8 C. & P. 611; R. v. Chandler, Dears. 453; and see R. v. Robinson (1897), 1 Can. Cr. Cas. 28. The mere fact that he might have obtained such means by application to a relief officer is not sufficient. R. v. Chandler, Dears. 453; R. v. Rugg, 12 Cox C.C. 16.

It must also be shewn that the child was unable to provide for himself. R. v. Friend, R. & R. 20.

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

On a case reserved upon a conviction for failing to supply necessaries to a wife whereby her health is likely to be permanently injured, the conviction should be affirmed, if there is some evidence from which an inference may be drawn that such injury was likely to result from the non-supplying of necessaries. R. v. McIntyre (1898), 3 Can. Cr. Cas. 413 (N.S.).

Where a child's toes were so badly frozen, through the neglect of the person in whose charge the child was, that they had to be amputated, it was held in the Territories that the court should not without expert evidence upon the effect of the loss of the toes infer that the child's health had thereby been or was likely to be “permanently injured," or that his life had thereby been endangered. R. v. Coventry, 3 Can. Cr. Cas. 541 (N.W.T.). The correctness of the decision is doubted.

Non-support of wife.]—It is necessary to prove that the defendant is the husband of the prosecutrix, that the wife was in need of food, clothing or lodging, and that the husband omitted to provide the same. R. v. Nasmith (1877), 42 U.C.Q.B. 242. Under the former law it was necessary to shew that the accused wilfully and without lawful excuse refused or neglected to provide (32-33 Vict., ch. 20, sec. 25), and under it an ability to perform was necessary to constitute a neglect. R. v. Ryland, L.R. 1 C.C.R. 99. And it seems to be still necessary for the prosecution to give evidence of his ability in order to shew that the omission was without lawful excuse.

Evidence is admissible, as tending to shew a lawful excuse, of an agree ment between husband and wife at time of marriage that she should be supported as before the marriage and not by him until he could earn sufficient means for the maintenance of both. Such evidence is admissible although the contract alone may not furnish an answer to the charge. The prisoner may have become possessed of ample means since his marriage, and the offence being a public one cannot be met by a mere agreement between the husband and wife. A present inability to support his wife