may be proved by the accused by way of defence. R. v. Robinson (1897), 1 Can. Cr. Cas. 28.

Where the husband's failure to support his wife caused no injury to the wife's health, she having been maintained by the charity of friends on the husband's default, such default does not give rise to criminal responsibility under Code sections 242 and 244. R. v. Wilkes (1906), 11 Can. Cr. Cas. 226.

The defendant may be convicted notwithstanding that his wife has in consequence of the neglect to supply her with necessaries left him, taking with her a small sum of money belonging to him. R. v. Pennock (1898), 18 C.L.T. 79.

Where the complainant in a charge of non-support of wife had been previously married, but had always lived apart from her first husband, and swore to having heard two years before the second marriage that her husband was dying in a foreign country, and that about a year after her second marriage she again heard that her husband was dead, such was held to be evidence to go to the jury to prove that her first husband had died before her marriage to the defendant. R. v. Holmes (1898), 2 Can. Cr. Cas. 131.

Wife a compellable witness.]-Neglect under sec. 242 is punishable under section 244; and the Canada Evidence Act, sec. 4(2), specifies the latter section as one under which the wife of the accused is a competent and compellable witness for the prosecution.

What are necessaries.]—See note to sec. 241.

Guardian.]-The word "guardian" includes any person who has in law or in fact the custody or control of any child referred to. Section 240. Proving age of juvenile.]-See sec. 984.

Proof of marriage.]-The fact that it is a foreign marriage does not affect the question of the proof, as the lex fori governs upon all questions of proof. Taylor on Evidence, p. 49; Daye v. McNeill (1904), 6 Terr. L.R. 44.

on

Form of indictment for non-support.]—That A.B., at and on several days and times before then, being the husband of C.D., his wife, and as such husband being under a legal duty to provide necessaries for her, did then and there unlawfully omit, without lawful excuse, to provide necessaries for her, whereby the life of the said C.D. was dangered, or the health of the said C.D. is now or is likely to be permanently injured.

en

243. Every one who, as master or mistress, has contracted Duty of to provide necessary food, clothing or lodging for any servant masters. or apprentice under the age of sixteen years is under a legal duty to provide the same, and is criminally responsible for omitting, without lawful excuse, to perform such duty, if the responsideath of such servant or apprentice is caused, or if his life is bility. endangered, or his health has been or is likely to be permanently injured, by such omission. 55-56 V., c. 29, s. 211.

Master and servant.]—This and the preceding section originated in 3233 Vict. (Can.), ch. 20, sec. 25, adapted from the Imperial Statute 24 & 25 Vict., ch. 100, sec. 26. Under 32-33 Vict., the gist of the offence was the wilfully and without lawful excuse refusing or neglecting to provide. R. v.

Criminal

Omission

of duty.

Penalty.

Nasmith (1877), 42 U.C.Q.B. 242. The words of the Code constitute the mere omission an offence, if without lawful excuse.

This section does not impose a criminal responsibility upon the master to provide the servant with medical attendance or medicine. R. v. Coventry (1898), 3 Can. Cr. Cas. 541. It was held in the same case that the court should not, without expert evidence upon the effect of the loss of a child's toes resulting from exposure to cold, and their consequent amputation, infer that the child's health had thereby been or was likely to be "permanently injured," or that his life has thereby been endangered. The correctness of this decision is to be doubted.

An indictment did not lie against a master at common law for not providing sufficient food and sustenance for a servant, whereby the servant became sick and emaciated, unless it alleged that the servant was of tender years and under the dominion and control of the master. R. v. Friend, Russ. & Ry. 20; R. v. Ridley, 2 Camp. 650. The reason of the restriction is, that if the servant be not of tender years, he may if not provided with proper nourishment remonstrate, and, if necessary, leave the service. R. v. Nasmith (1877), 42 U.C.Q.B. 242, 245. The present section does not appear to have changed the law in that respect except in fixing the age limit at sixteen.

In a case before the Code where a young farm hand fifteen years of age died from gangrene resulting from frost-bites through exposure and neglect which the master could have obviated it was held that, in view of the age of the deceased, the circumstances of the country, the fact of their being no provision for maintaining poor people, it was the duty of the prisoner, as a master towards the deceased as his servant, to have taken care of him, and that by his omission to do so he was guilty of gross negligence, to which the lad's death was attributable, and that, therefore, the prisoner was guilty of manslaughter. R. v. Brown (1893), 1 Terr. L.R. 475.

Without lawful excuse.]—On a charge against a master for neglecting to supply food to his apprentice it must be shewn that the master was in the actual possession of means to provide for him. R. v. Saunders, 7 C. & P. 277; R. v. Edwards, 8 C. & P. 611; R. v. Chandler, Dears. 452, 6 Cox C.C. 519. 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.

Proof of age.]-See sec. 984.

Form of indictment against master.]—The jurors, etc., present-That B., on then being the master of M., his servant, and having contracted and then being legally liable to provide for the said M., as his servant as aforesaid, necessary food (clothing or lodging), unlawfully, wilfully and without lawful excuse did refuse and neglect to provide the same, so that the life of the said M. was thereby endangered (or the health of the said M. has been or is likely to be permanently injured) against the form of the statute, the Criminal Code secs. 243 and 244.

244. Every one is guilty of an indictable offence and liable to three years' imprisonment who, being bound to perform any duty specified in the three last preceding sections, without lawful excuse neglects or refuses to do so, unless the offence amounts to culpable homicide. 55-56 V., c. 29, s. 215; 56 V., c. 32, s. 1.

See notes to secs. 241 to 243 inclusive.

Wife or husband as a compellable witness.]—See Canada Evidence Act, sec. 4(2).

under two

245. Every one is guilty of an indictable offence and liable Abandoning to three years' imprisonment who unlawfully abandons or ex- children poses any child under the age of two years, whereby its life is endangered or its health is permanently injured. 55-56 V., c. 29, s. 216.

Evidence.]-A woman who was living apart from her husband, and who had the actual custody of their child under two years of age brought the child to the door of the father's house telling him she had done so. He knowingly allowed it to remain lying outside his door for four hours in the night time and it was then removed by a constable. It was held that, although the father had not the actual custody and possession of the child, yet as he was bound by law to provide for it, his allowing it to remain where he did was an abandonment and exposure of the child by him whereby its life was endangered. R. v. White (1871), L.R. 1 C.C.R. 311, 40 L.J.M.C. 134.

And where the mother of a bastard child five weeks old put the child in a hamper and shipped the hamper as a goods parcel by railway a distance of four miles to the child's putative father who had told her, prior to the child's birth, that if she sent it to him he would keep it, and the hamper was addressed for immediate delivery and was in fact delivered within an hour and a quarter from the time the mother left it, and the child died three weeks afterwards from causes not attributable to such conduct of the mother, yet it was held that she was properly convicted of abandoning and exposing the child whereby its life was endangered. R. v. Falkingham (1870), L.R. 1 C.C.R. 222, 39 L.J.M.C. 47.

Proof of age of juvenile.]—See sec. 984.

Abandon or expose.]—See sec. 240.

Form of indictment.]-That A. unlawfully did abandon and expose a certain child called M., then being under the age of two years, whereby the life of the said child was endangered (or whereby the health of such child was likely to be permanently injured) against the form of the statute made and provided and of the Criminal Code sec. 245.

years.

246. Every one who undertakes, except in cases of necessity, Duty of perto administer surgical or medical treatment, or to do any other sons undertaking acts lawful act the doing of which is or may be dangerous to life, dangerous is under a legal duty to have and to use reasonable knowledge, to life. skill and care in doing any such act, and is criminally responsible for omitting, without lawful excuse, to discharge that duty if death is caused by such omission. 55-56 V., c. 29, s. 212.

Surgical or medical treatment.]—A medical man must, at his peril, use proper skill and caution in administering a poisonous drug. R. v. Macleod, 12 Cox C.C. 534.

If a party having a competent degree of skill and knowledge, whether a licensed physician or not, makes an accidental mistake in his treatment of a patient and the patient's death results from the mistake, such party

Duty of persons in

charge of dangerous

things.

is not thereby guilty of manslaughter; but if, where proper medical assistance can be had, a person totally ignorant of the science of medicine takes on himself to administer a violent and dangerous remedy to one labouring under disease, and death ensues in consequence of that dangerous remedy having been so administered, then he is guilty of manslaughter. R. v. Webb, 2 Lewin 196, 1 M. & Rob. 405.

It may be left to the jury to say first, whether death was occasioned or accelerated by the medicines administered, and if they find that it was, then the jury may be instructed that the prisoner is guilty of manslaughter if they think that in so administering the medicine he acted with a criminal intention or from very gross negligence. Ibid.; R. v. Chamberlain, 10 Cox C.C. 486.

Evidence cannot be gone into, on either side, of former cases treated by the prisoner, but the opinion of experts may be given as to the treatment which the evidence shews was administered in the case in question. R. v. Whitehead, 3 C. & K. 202: Archbold Cr. Plead. (1900), 755.

On an indictment against a medical man for manslaughter by adminis tering poison by mistake for some other drug, it is not sufficient for the prosecution to shew merely that the prisoner, who dispensed his own drugs, supplied a mixture which contained a large quantity of poison; the prosecution must also shew that this happened through the gross negligence of the prisoner. R. v. Spencer, 10 Cox C.C. 525.

A woman practising "Christian science" and not called in as a medical attendant was held not guilty of manslaughter where the only treatment by her was to sit silently by the patient, a child ill of diphtheria, although the child's health might have been saved or prolonged had proper medical aid been called in. R. v. Beer, 32 C.L.J. 416. But the aiding and abetting the person charged with the duty of providing necessaries is punishable in like manner as the principal offence. Sec. 69. 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.

247. Every one who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes or maintains anything whatever which, in the absence of precaution or care, may endanger human life, is under a legal duty to take reasonable precautions against, and use reasonable care to avoid, such danger, and is criminally responsible for the consequences of omitting, without lawful excuse, to perform such duty. 55-56 V., c. 29, s. 213.

Criminal liability of corporation.]-A corporation is not subject to indictment upon a charge of any crime the essence of which is either personal criminal intent or such a degree of negligence as amounts to a wilful incurring of the risk of causing injury to others. R. v. Great West Laundry Co. (1900), 3 Can. Cr. Cas. 514 (Man.). Sections 247 and 252, as to want of care in the maintenance of dangerous things, do not extend the criminal responsibility of corporations beyond what it was at common law. Ibid.

Although a corporation cannot be guilty of manslaughter, it may be indicted, under Code sec. 222 and possibly also under sec. 284, for having caused grievous bodily injury by omitting to maintain in a safe condition a bridge or structure which it was its duty to so maintain, and this notwithstanding that death ensued at once to the person sustaining the griev

ous bodily injury. R. v. Union Colliery Co. (1900), 3 Can. Cr. Cas. 523 (B.C.) affirmed, 4 Can. Cr. Cas. 400, 31 Can. S.C.R. 81.

Under sec. 247 a corporation may be indicted for omitting, without lawful excuse, to perform the duty of avoiding danger to human life from anything in its charge or under its control. The fact that the consequence of the omission to perform such duty might have justified an indictment for manslaughter in the case of an individual is not a ground for quashing the indictment. Union Colliery Co. v. R. (1900), 4 Can. Cr. Cas. 400, 31 Can. S.C.R. 81.

As the Criminal Code provides no punishment for the offence as against a corporation, the common law punishment of a fine may be imposed on a corporation indicted under it. Ibid.

Where deceased was run over by a railroad car and died from his injuries a few hours afterwards, the statement of the deceased, made immediately after he was run over in answer to a question as to how it happened, was held admissible. Armstrong v. Canada Atlantic (1901), 2 O.L.R. 219; Thompson v. Trevanion (1693), Skin. 402; Aveson v. Kinnaird (1805), 6 East 188, at p. 193; Rex v. Foster (1834), 6 C. & P. 325.

In Mill v. Hawker, L.R. 9 Exch. 317, Cleasby, B., said: "When the acts are such as the corporate body is not by law qualified to do, and the corporate body, if they pretend to do them, are acting ultra vires, then the mere fact of giving a corporate form to the act does not prevent it from being the act of those who caused it to be done. It seems plain that in such a case the individuals and not the corporation do the act, and no authority is needed for that conclusion."

The latter opinion was concurred in by the Supreme Court of New Brunswick in Ex p. Baird (1897), 3 Can. Cr. Cas. 65.

The manager of a corporation is not criminally liable as for wilful disobedience of a statute under Code sec. 164 in respect of the corporation's neglect not due to any active participation on his part, to perform a statutory duty imposed upon it. R. v. Hays (1907), 12 Can. Cr. Cas. 423.

There are offences, such as assaults, which it is physically impossible for a corporation to commit, but for such offences as they can commit, whether of misfeasance or malfeasance, and for which the prescribed punishment is one which they can be made to endure, they are as amenable to the criminal law as are natural persons. R. v. Central Supply Association (1907), 12 Can. Cr. Cas. 371; The Queen v. The Great North of England R.W. Co. (1846), 9 Q.B. 315; The Queen v. Tyler and International Commercial Co., [1891] 2 Q.B. 588-594; Pharmaceutical Soc'y. v. London and Provincial Supply Association (1880), 5 App. Cas. 857.

Some one or more officers of the corporation may also be liable upon a criminal charge arising out of the same occurrence in respect of the officer's personal misfeasance or malfeasance. In a recent Ontario case, Rex v. Michigan Central Ry. (1907), in which the railway company had been indicted for a nuisance under the Revised Cr. Code sec. 221, in carrying dynamite without proper precautions whereby fatalities resulted and for criminal neglect under sec. 247 whereby human life was endangered. Mr. Justice Riddell said in delivering judgment after a plea of guilty: "If it were the fact that the board of directors or the general manager of the defendants' company, or anyone responsible, directly or indirectly, for the system carried on in the transportation of explosives, resided within the jurisdiction of this court, I should have recommended their being indicted as well as the company. It is right and just that employees of whatever grade shall be placed upon trial when any negligence of theirs caused wounds or death, and the higher officers through whom a defective system is put on or kept in operation should not escape."

In Ex parte Brydges (1874), 18 Lower Canada Jurist 141, the applica