elapsed between the occurrence and the making of the statement, in order that the judge might be enabled to say whether or not the lapse of time would be an objection to the admissibility of the statement. R. v. Rush (1896), 60 J.P. 777. males. 293. Every one is guilty of an indictable offence and liable Indecent to ten years' imprisonment, and to be whipped, who assaults any assault on person with intent to commit sodomy or who, being a male. indecently assaults any other male person. 55-56 V., c. 29, s. 260; 56. V., c. 32, s. 1. "Assaults."]-One of the requisites of assault as defined by sec. 290 is that the application of force is without the consent of the other party or with a consent obtained by fraud. Section 294 applies to the offence of indecently assaulting a boy under 14 as well as to offences under sec. 292, and it is no defence to prove that he consented to the act of indecency. And apart from that section if the boy is so ignorant of the act done as to be incapable of exercising his will one way or the other, there is no consent although there may be no dissent. Reg. v. Lock (1872), L.R. 2 C.C.R. 10; 12 Cox C.C. 244. If the "other male person" is over fourteen and has consented to the indecent act there is no assault. R. v. Martin, 2 Moore C.C. 123; R. v. Wollaston, 12 Cox C.C. 180; R. v. Laprise, 3 Montreal L.N. 139. But see also secs. 205 and 206, as to the punishment of indecent acts in which assault is not charged. Although a minor under fourteen cannot be convicted of sodomy, he may if the act be committed against the will of the other party be punished for an assault under this section. R. v. Hartlen (1898), 2 Can. Cr. Cas. 12. Excluding public from court room.]-See sec. 645. child under fourteen no 294. It is no defence to a charge or indictment for any Consent of indecent assault on a young person under the age of fourteen years to prove that he or she consented to the act of indecency. defence. 55-56 V., c. 29, s. 261. See notes to secs. 292 and 293. Proof of age.]-See sec. 984. 295. Every one who commits any assault which occasions Assault with actual bodily harm is guilty of an indictable offence and liable bodily harm. to three years' imprisonment. 55-56 V., c. 29, s. 262. A conviction for common assault would be a bar to a subsequent prosecution for assault occasioning bodily harm. Larin v. Boyd, 11 Can. Cr. Cas. 74. Actual bodily harm.]-The term "actual bodily harm" does not imply a wounding or breaking of the skin. R. v. Hostetter (1902), 7 Can. Cr. Cas. 221, 5 Terr. L.R. 363. As to the offence of inflicting grievous bodily harm, see secs. 274 and 773 (c). Aggravated assault. Evidence.]-In a prosecution for an assault occasioning actually bodily harm, it is improper to exclude evidence of statements sworn to by a witness for the prosecution at a preliminary enquiry, the record of the depositions upon which had been lost, as to what was said by the accused at the time of the assault, as such statements of the witness had reference to statements of the accused forming a part of the res gesta. R. v. Troop (1898), 2 Can. Cr. Cas. 22. The fact that a prisoner committed for trial for assault occasioning bodily harm was told by the constable removing him to gaol under the commitment that the assaulted party would die, is not evidence of an inducement or threat to the prisoner so as to make his subsequent question "What do you think I will get--about 15 years?" inadmissible against him. The prisoner's question under the circumstances raised a strong inference that he was present when the injuries were inflicted. R. v. Bruce (1907), 12 Can. Cr. Cas. 275. Form of indictment.]-That A. on at in and upon one J. N. did make an assault, and him the said J. N. did then beat, wound and ill-treat, thereby then occasioning to the said J. N. actually bodily harm, and other wrongs to the said J. N. then did, to the great damage of the said J. N. against the form of the Criminal Code sec. 295. 296. Every one is guilty of an indictable offence and liable to two years' imprisonment who, at (a) assaults any person with intent to commit any indictable offence; or, (b) assaults any public or peace officer engaged in the execution of his duty, or any person acting in aid of such officer; or, (c) assaults any person with intent to resist or prevent the (d) assaults any person in the lawful execution of any Form of indictment for assaulting a peace officer.]—That A. on in and upon one J. N., then being a peace officer, to wit, a constable in and for the said town (cr county), and then being in the due execution of his duty as such constable, did make an assault, and him, the said J. N., so being in the execution of his duty as aforesaid, did then beat, wound and ill-treat, and other wrongs to the said J. N., then did, to the great damage of the said J. N., against the form of the Criminal Code sec. 396. Form of charge.]-The following example of the manner of stating an offence under sub-section (a) is given in Code form 64: "A. with intent to maim, disfigure, disable or do grievous bodily harm to B. did actual bodily harm to B. (or D.)." An example of the charge under sub-section (c) is also given as follows: "A. with intent to resist the lawful apprehension or detainer of A. (or C.) did actual bodily harm to B. (or D.).” Assaulting peace officer..]—Where a constable was assaulted while attempting to execute a warrant issued by two justices for non-payment of a fine and costs imposed on a person convicted of an offence, and the justice had jurisdiction over the offence, and the warrant was valid on its face, it was held that a conviction for the assault would lie notwithstanding the fact that part of the original conviction by the two justices was erroneous in awarding a punishment which was not authorized. R. v. King (1889), 18 Ont. R. 566. The offence of obstructing a peace officer in the execution of his duty is dealt with by secs. 168 and 169. The fact that the accused did not know that the person assaulted was a peace officer, or that he was acting in the execution of his duty will not prevent a conviction hereunder. R. v. Forbes (1865), 10 Cox C.C. 362; although it will no doubt be taken into consideration in awarding the punishment. Punishment.]-A fine as well as imprisonment may be imposed on the conviction of the accused, if tried either by a court of criminal jurisdiction or by a "magistrate" under the Summary Trials Procedure. Sec. 1058; Ex parte McClements (1895), 32 C.L.J. 39. Prior conviction or dismissal on common assault charge.]—A summary conviction for assault has been held sufficient to bar a subsequent indictment, charging an assault and wounding with intent to murder, where the accused had been summoned before magistrates by the prosecutor of the indictment for the same assault, and had been imprisoned on his making default of payment of the fine imposed by the magistrates. R. v. Stanton (1851), 5 Cox C.C. 324, per Erle, J. It was said by Coltman, J., in R. v. Walker (1843), 2 Moody & Rob. 446, that there is no difference in principle whether a party has been convicted or acquitted; and that on a complaint for a common assault the justices were to determine whether such assault was accompanied with any felonious intention, and on that question they are like any other court of competent jurisdiction, and their decision is of the same finality as if the party had been convicted by a jury. And see Code sec. 732. Costs.]-A magistrate summarily trying, with the consent of the accused, a charge of aggravated assault has jurisdiction to award costs against the accused as well as to impose both fine and imprisonment. R. v. Burtress (1900), 3 Can. Cr. Cas. 536 (N.S.). Assault with intent to rob.]—This offence is specially dealt with by sec. 448, which provides a punishment of three years' imprisonment for same as an indictable offence. Extradition.]-Assault with intent to commit murder is extraditable between Canada and the United States under the Ashburton Treaty of 1843. 297. Every one is guilty of an indictable offence and liable Kidnapping. to seven years' imprisonment who, without lawful authority,(a) kidnaps any other person with intent Intent. (i) to cause such other person to be secretly confined or To imprison. imprisoned in Canada against his will, or, To be trans ported. To be enslaved. Forcible confinement. Non-resist ance. (ii) to cause such other person to be unlawfully sent or transported out of Canada against his will, or, (iii) to cause such other person to be sold or captured as a slave, or in any way held to service against his will; or, (b) forcibly seizes or confines or imprisons any other person within Canada. 2. Upon the trial of any offence under this section the nonresistance of a person so unlawfully kidnapped or confined shall not be a defence unless it appears that it was not caused by threats, duress or force, or exhibition of force. 63-64 V., c. 46, s. 3. Kidnapping.]-Kidnapping is an aggravated species of false imprisonment, the latter offence being always included in the former. 2 Bishop Crim. Law 671. The offence is an indictable one at common law. R. v. Lesley (1860), 29 L.J.M.C. 97. Criminal forcible imprisonment.]-The crime of false imprisonment is a species of aggravated assault. 2 Bishop Cr. Law 668. Although it is not necessary that a man's person should be touched. Bird v. Jones (1845), 7 Q.B. 742. A false imprisonment is any unlawful restraint of a man's liberty whether in a place made use of for purposes of imprisonment generally or in one used only on the particular occasion; or by words and an array of force without bolts or bars in any locality whatever. R. v. Webb, 1 W. Bl. 19; Bird v. Jones (1845), 7 Q.B. 742. To compel a man to go in a given direction against his will may amount to an imprisonment; but if a man merely obstructs the passage of another in a particular direction whether by threats of personal violence or otherwise, leaving him at liberty to stay where he is or go in any other direction if he pleases, he cannot be said to thereby imprison him. Bird v. Jones (1845), 7.Q.B. 742, per Patteson, J. Detention of a prisoner after expiry of his sentence is false imprisonment. Migotti v. Colville (1869), 4 C.P.D. 233; Moone v. Rose (1869), L.R. 4 Q.B. 486. Where a person sends for a constable and gives another person in charge for an indictable offence and the constable tells the party charged that he must go with him, on which the other without further compulsion goes to the police office, this is an imprisonment. Pocock v. Moore (1825), Ry. & M. 421. But where the warrant is used merely as a summons and no arrest is made thereon, and the party voluntarily goes before the magistrate, such seems not to be an imprisonment. Arrowsmith v. LeMesurier (1806), 2 B. & P. 211; Berry v. Adamson (1827), 6 B. & C. 528. Where a man who had an idiot brother bedridden in his house kept him in a dark room without sufficient warmth or clothing it was held not to be an imprisonment; R. v. Smith (1826), 2 C. & P. 449; but a charge might be laid in such a case under Code secs. 241 and 244 for criminally neglecting to supply necessaries. Justification.]-The seizure and imprisonment may be justified by shewing that there was a lawful arrest and detention under either civil or criminal process or by lawful authority. As to what are matters of justification see Code secs. 23-68. a Unlawful Carnal Knowledge. defined. 298. Rape is the act of a man having carnal knowledge of Rape woman who is not his wife without her consent, or with consent which has been extorted by threats or fear of bodily harm, or obtained by personating the woman's husband, or by false and fraudulent representations as to the nature and quality of the act. 2. No one under the age of fourteen years can commit this Age. offence. 55-56 V., c. 29, s. 266. Girls under fourteen.]—When there has been no violence, and the girl is under fourteen and has consented or complied, the offence falls under Art. 269; but when there has been violence, and when the girl has not consented, then, notwithstanding the fact that the girl is under fourteen years of age, the crime is rape, and falls under this section. R. v. Riopel (1898), 2 Can. Cr. Cas. 225, 228. The word "man" and "woman" in this section are to be taken in a general or generic sense as indicating all males and females of the human race, and not in a restricted sense as distinguished from boys and girls. R. v. Riopel (1898), 2 Can. Cr. Cas. 225. An indictment for rape lies against one who has ravished a female under the age of fourteen years against her will, notwithstanding the provisions of sec. 301, which enacts that everyone is guilty of an indictable offence and liable to imprisonment for life, and to be whipped, who carnally knows any girl under the age of fourteen years, not being his wife. Ibid. Carnal knowledge.]-Carnal knowledge is complete upon penetration to any, even the slightest degree, and even without the emission of seed. Code sec. 7. Evidence of young children.]-As to the evidence of children under fourteen who do not understand the nature of an oath, see sec. 1003 of the Code and sec. 16 of the Canada Evidence Act. Carnally knowing female insane or deaf and dumb.]-See the special provision for this offence in Code sec. 219. 299. Every one who commits rape is guilty of an indictable Punishment offence and liable to suffer death or to imprisonment for life. for rape. 55-56 V., c. 29, s. 267. A prosecution for rape is in fact and in substance a prosecution for any offence of which, on an indictment for rape, the prisoner could have been found guilty; and the maxim "Omne majus continet in se minus" applies. R. v. West,, [1898] 1 Q.B. 174; R. v. Edwards (1898), 2 Can. Cr. Cas. 96. An indictment may now be laid under Cr. Code secs. 856 and 951 charging rape and also assault with intent to commit rape. of Form of indictment.]-The jurors of our Lord the King upon their oath present that J. S. on the day of in the year of our Lord 19 at the in and upon A. N. violently and unlawfully did make an assault, and her, the said A. N. then violently and against her will unlawfully did ravish and carnally know, against the form of the statute in such case made and provided, Criminal Code sec. 299, and against the peace of our Lord the King, his crown and dignity. |