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or in retaking it from such trespasser, if in either case he does not strike or do bodily harm to such trespasser.

2. If, after any one, being in peaceable possession as Assault by aforesaid, has laid hands upon any such thing, such trespasser trespasser. persists in attempting to keep it or to take it from the possessor,

or from any one lawfully assisting him, the trespasser shall be deemed to commit an assault without justification or provocation. 55-56 V., c. 29, s. 48.

Justifiable battery.]-In the case of trespass in taking goods, the owner may justify beating the trespasser in order to make him desist. 1 Hale 486; R. v. Wild, 2 Lewin C.C. 214.

A battery is justifiable by proving that it was committed to restrain another from unlawfully taking or destroying his goods. 2 Rol. Abr. 549.

57. Every one who is in peaceable possession of any mov- Defence able property or thing under a claim of right, and every one with claim of right. acting under his authority, is protected from criminal responsibility for defending such possession, even against a person entitled by law to the possession of such property or thing, if he uses no more force than is necessary. 55-56 V., c. 29,

s. 49.

If one comes to beat another or to take his goods as a trespasser, though the owner may justify a battery for the purpose of making him desist, yet if he kill him it will be manslaughter. 1 Hale P.C. 485, 1 East P.C. 272, 277; R v. Bourne (1831), 5 C. & P. 120.

claim

58. Every one who is in peaceable possession of any Defence movable property or thing, but neither claims right thereto without nor acts under the authority of a person claiming right thereto, of right. is neither justified nor protected from criminal responsibility for defending his possession against a person entitled by law to the possession of such property or thing. 55-56 V., c. 29, s. 50.

house.

59. Every one who is in peaceable possession of a dwelling- Defence of house, and every one lawfully assisting him or acting by his dwelling authority, is justified in using such force as is necessary to prevent the forcible breaking and entering of such dwellinghouse, either by night or day, by any person with the intent to commit any indictable offence therein. 55-56 V., c. 29, s. 51.

It has been held that a guest in a house is justified in defending the house. Curtis v. Hubbard, 4 Hill N.Y. 437; Cooper's Case, Cro. Car. 544; also that the neighbours of the occupant may assemble for its defence. Semayne's Case, 5 Co. 91.

Dwelling house.]-Every permanent building in which the renter or owner or his family dwells is a dwelling house. Archbold, Cr. Evid.

Same at night.

Defence of real pro

perty.

(1900), 593. And it will be sufficient if any one of the family habitually sleeps in that building. R. v. Westwood, R. & R. 495.

The mere temporary absence of the householder and his family will not prevent its remaining in contemplation of law a dwelling house. R. v. Murray, 2 East P.C. 496. But where the householder moved away from the house, not intending to return to live in it, but retained it as a warehouse in which some of his employees slept for the purpose of taking care of it, it was held not to be his dwelling house. R. v. Flannagan, R. & R. 187. And where the landlord of a dwelling house after the tenant had quitted it, put a servant into it to sleep there at night until he should re-let it to another tenant, but had no intention to reside in it himself, it could not be deemed the dwelling house of the landlord. R. v. Davis, 2 Leach 876; R. v. Harris, 2 Leach 701. A tenant put his furniture into a house preparatory to moving in with his family, but neither he nor any of his family had as yet slept in it; it was held not to be a "dwelling house" as regards burglary. R. v. Hallard, 2 East P.C. 498; R. v. Lyons, 1 Leach 185.

A temporary booth or tent in a fair or market is not a dwelling house although the owner lodge in it. 1 Hawk., ch. 38, sec. 35. But it is otherwise in respect of a permanent building although used only for the purposes of a fair. R. v. Smith, 1 M. & Rob. 256.

The extended meaning of the term "dwelling house" as set out in secs. 335 and 339 of the Code is in terms applicable only to Part VII.

Breaking and entering.]-The definition of the term "to break" given in sec. 335 in terms applies only to Part VII., but is in accordance with the previous decisions on the subject. Section 340 provides that an "entrance" into a building is made as soon as any part of the body of the person making the entrance, or any part of any instrument used by him is within the building. It would seem, however, that as to secs. 59 and 60 the common law definition applies and not that of sec. 340, and, at common law, if the instrument were used not for the purpose of committing the contemplated felony but only for the purpose of effecting the entry, its introduction was not such an entry as constituted burglary. R. v. Hughes, 2 East P.C. 491; R. v. Rust, 1 Moody C.C. 183.

60. Every one who is in peaceable possession of a dwellinghouse, and every one lawfully assisting him or acting by his authority, is justified in using such force as is necessary to prevent the forcible breaking and entering of such dwellinghouse by night by any person, if he believes, on reasonable and probable grounds, that such breaking and entering is attempted with the intent to commit any indictable offence therein. 55-56 V., c. 29, s. 52.

The mere threat of parties standing outside of a dwelling house that they will break in, does not justify the householder in shooting at and wounding them, unless the householder has first warned them to desist and depart or that he would fire. Spires v. Barrick, 14 U.C.Q.B. 420.

61. Every one who is in peaceable possession of any house or land, or other real property, and every one lawfully assisting him or acting by his authority, is justified in using force to prevent any person from trespassing on such property, or to

remove him therefrom, if he uses no more force than is neces

sary.

2. If such trespasser resists such attempt to prevent his Assault by entry or to remove him such trespasser shall be deemed to trespasser. commit an assault without justification or provocation. 55-56 V., c. 29, s. 53.

Forcible ejection of trespasser.]—If A., a trespasser, enters B.'s house and refuses to leave, B. has a right to remove A. by force, but not to kick or strike him unless the force used to remove him be necessary. Wild's Case, 2 Lewin C.C. 214. But if the trespasser resists such force the householder may use any degree of force necessary to defend himself and to remove the trespasser from the house. 1 Hale P.C. 486.

In the case of a trespass in law merely, without actual force, the owner must first request the trespasser to depart before he can justify laying his hand on him for the purpose of removing him; and even if he refuse he can only justify so much force as is necessary to remove him. Weaver v. Bush, 8 T.R. 78.

Resists such attempt.]-The words are "if such trespasser resists such attempt," the word "such" applies to an attempt by force referred to in the former part of the section, and will not apply to mere words of warning or of request to leave. Packett v. Pool (1896), 11 Man. R. 275, 32 C.L.J. 523. The latter part of the section does not apply until there is an overt act on the part of the person in possession towards prevention or removal, and an overt act of resistance on the part of the trespasser. Ibid.

house or

62. Every one is justified in peaceably entering in the day- Assertion of time to take possession of any house or land to the possession right to of which he, or some person under whose authority he acts, is land. lawfully entitled.

2. If any person, not having or acting under the authority Assault in of one having peaceable possession of any such house or land case of lawful entry. with a claim of right, assaults any one peaceably entering as aforesaid, for the purpose of making him desist from such entry, such assault shall be deemed to be without justification or provocation.

3. If any person having peaceable possession of such house Trespasser or land with a claim of right, or any person acting by his provoking. authority, assaults any one entering as aforesaid, for the purpose of making him desist from such entry, such assault shall be deemed to be provoked by the person entering. 55-56 V., c. 29, s. 54.

63. It is lawful for every parent, or person in the place of a parent, schoolmaster or master, to use force by way of correction towards any child, pupil or apprentice under his care, provided that such force is reasonable under the circumstances. 55-56 V., c. 29, s. 55.

Correction of child by force.

Master of ship.

Apprentices.]-Formerly a right of chastisement of servants by way of correction was recognized. R. v. Mawgridge, 16 St. Tr. 57; but as to servants who are not apprentices it is in desuetude. Archbold Crim. Evid. (1900), 762.

Child.] The law as to correction of children has reference only to a child capable of appreciating correction and not to an infant two years and a half old. R. v. Griffin, 11 Cox C.C. 402. If the correction be inflicted with a deadly weapon and the party dies of it it will be murder; if with an instrument not likely to kill, though improper for the purpose of correction, it will be manslaughter. Foster 262; R. v. Hopley (1860), 2 F. & F. 201.

School teacher and pupil.]—A school teacher who inflicts unreasonably severe chastisement upon a pupil is criminally responsible, under Code secs. 63 and 66, for the excess of force used, although the punishment occasioned no permanent injury and was inflicted without malice. Gaul (1904), 8 Can. Cr. Cas. 178.

R. v.

The following principles are laid down by Judge Chipman in the Nova Scotia case of R. v. Robinson (1899), 7 Can. Cr. Cas. 52:(1) The authority of a school teacher to chastise a pupil is to be regarded as a delegation of parental authority.

(2) Corporal punishment inflicted by a school teacher upon a pupil is presumed to be reasonable and for sufficient cause, until the contrary is shewn.

(3) Where there is a sufficient cause for punishing the pupil, and the chastisement produces only temporary pain and no serious injury, it will be presumed to be reasonable.

(4) Any punishment with an instrument calculated to produce danger to life or limb in unreasonable and unlawful.

(5) Any punishment protracted beyond the child's powers of endurance is excessive and unlawful.

(6) Any punishment which ordinarily may seriously endanger life, limbs, or health, or which disfigures the child, or causes any other permanent injury, is in itself unreasonable and unlawful.

(7) If there is any reasonable doubt whether the punishment was excessive, the school teacher should have the benefit of the doubt.

64. It is lawful for the master or officer in command of a ship on a voyage to use force for the purpose of maintaining good order and discipline on board of his ship, provided that he believes, on reasonable grounds, that such force is necessary, and provided also that the force used is reasonable in degree. 55-56 V., c. 29, s. 56.

This right includes the right of the shipmaster to inflict reasonable corporal punishment at sea on seamen for disobeying orders. The Agincourt, 1 Hagg. 271; Lamb v. Burnett, 1 Cr. & J. 291.

Surgical 65. Every one is protected from criminal responsibility for operations. performing with reasonable care and skill any surgical operation upon any person for his benefit, provided that performing the operation was reasonable, having regard to the patient's state at the time, and to all the circumstances of the case. 55-56 V., c. 29, s. 57.

Surgical operations for patient's benefit.]—In these cases there is no difference between a licensed physician or surgeon and a person acting as physician or surgeon without license; in either case if a party having a competent degree of skill and knowledge makes an accidental mistake in his treatment of a patient, through which mistake death ensues, he 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, 1 M. & Rob. 405, 2 Lewin 196, per Lord Lyndhurst; R. v. Williamson, 3 C. & P. 635.

It must appear that there was gross ignorance or inattention to human life. R. v. Long, 4 C. & P. 423. If any person, whether he be a regular or licensed medical man or not, professes to deal with the life or health of His Majesty's subjects, he is bound to have competent skill to perform the task that he holds himself out to perform, and he is bound to treat his patients with care, attention and assiduity. R. v. Spiller, 5 C. & P. 333

It is for the jury to say whether in the execution of the duty which the prisoner had undertaken to perform he is proved to have shewn such a gross want of care, or such a gross and culpable want of skill, as any person undertaking such a charge ought not to be guilty of. R. v. Ferguson, 1 Lewin C.C. 181. See also sec. 246.

66. Every one authorized by law to use force is criminally Excess. responsible for any excess, according to the nature and quality of the act which constitutes the excess. 55-56 V., c. 29, s. 58.

See note to secs. 63, 64 and 65.

67. No one has a right to consent to the infliction of death Consent to death. upon himself.

2. If such consent is given, it shall have no effect upon the Causing criminal responsibility of any person by whom such death may death with be caused. 55-56 V., c. 29, s. 59.

If two persons enter into an agreement to commit suicide together and the means employed to produce death prove fatal to one only, the survivor is guilty of murder. R. v. Jessop, 16 Cox C.C. 204.

It is uncertain to what extent any person has a right to consent to his being put in danger of death or bodily harm by the act of another. Burbidge Cr. Law 201.

consent.

68. Every one is protected from criminal responsibility for Obedience to any act done in obedience to the laws for the time being, made de facto law. and enforced by those in possession de facto of the sovereign power in and over the place where the act is done. 55-56 V., c. 29, s. 60.

Parties to Offences.

69. Every one is a party to and guilty of an offence who,(a) actually commits it; or,

Who parties

to offence.

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