2ND EDIT. REVISED STATUTES 1906 REMARKS conveyed under lawful arrest and the prisoners all struggled to obtain revolvers, two of them succeeding in doing so, whereupon all of them attempted to effect a forcible escape during which one of the peace officers was shot dead by one of the prisoners but by which of them is unknown, proof that the defendant had one of the revolvers in the melee and had ordered another of the peace officers present to "give up" immediately after another of the prisoners had told the defendant to "give it to him" is, with such facts, sufficient evidence of a conspiracy by the three prisoners for an unlawful purpose, to wit, the escape, and of a common design to use for its accomplishment any amount of violence and force; and a conviction of the defendant for murder is, therefore, proper without proof that he fired the fatal shot. It was proper for the trial Judge to instruct the jury that "where all the parties proceed with the intention to commit an unlawful act and with the resolution or determination to overcome all opposition by force, that if by reason of such resolution one of the party is guilty of homicide, his companions would be liable to the penalty which he has incurred." The shooting of the constable by one of the conspirators, in the prosecution of such common purpose was an act which was or ought to have been known to be a probable consequence of prosecuting such purpose, and each of the conspirators become under Criminal Code, sec. 61 (2), now section 69 (2), a party to the homicide. (61) Where the accused charged with murder goes into the witness box on his own behalf, and then and there for the first time makes known his claim that he was a mere eye-witness of the murder, and that the principal witness for the prosecution had committed the deed, the trial judge may properly direct the jury that they may draw inferences from the prisoner's previous silence on the matter of such claim, and consider whether the facts in evidence shewed the motive for such silence to be founded on a consciousness of innocence, ex. gr., that he would thereby the better establish his innocence, or to be a design founded on a knowledge of guilt to advance a false defence at the last moment, and to take the prosecution by surprise. Even if the charge were erroneous in that respect, a new trial should not be granted if there was ample evidence of guilt apart from that question, and if, in the opinion of the Court of Appeal, no substantial wrong or miscarriage was occasioned by the error. (62) (61) R. v. Rice, 5 Can. Cr. Cas., 509. (62) R. v. Higgins, 36 N. B. R., 18; 7 Can. Cr. Cas., 68. 2ND EDIT. REVISED STATUTES 1906 REMARKS Where two persons mutually agree to commit suicide, and only one of the two accomplishes that object, the survivor is guilty of murder, according to the law of England. (63) But this is not so in our law. See section 269, post, which makes aiding and abetting suicide a specific offence, punishable by imprisonment for life. CIRCUMSTANTIAL EVIDENCE. In order to justify a finding of guilt from purely circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and must be incapable of explanation upon any other reasonable hypothesis than that of guilt. (64) Sec. 229. Sec. 261. Provocation. Unchanged. (65) Sec. 230. Sec. 262. Manslaughter. Unchanged. Sec. 231. Sec. 263. Punishment for Murder. Unchanged. Sec. 232. Sec. 264. Attempts to murder. Unchanged. Sec. 233. Sec. 265. Letters threatening murder. Unchanged. Sec. 234. Sec. 266. Conspiracy to murder and counselling mur der. Unchanged. Sec. 235. Sec. 267. Accessory after the fact to murder. Unchanged. Sec. 236. Sec. 268. Punishment for manslaughter. Unchanged. SUICIDE. Sec. 237. Sec. 269. Counselling or aiding or abetting the commission of suicide. Unchanged. Sec. 238. Sec. 270. Attempt to commit suicide. Unchanged. NEGLECT IN CHILDBIRTH AND CONCEALING DEAD BODY. Sec. 239. Sec. 271. Neglect to obtain assistance in childbirth. Unchanged. Sec. 240. Sec. 272. Concealing dead body of child. Unchanged. To constitute the offence of concealment of birth, there must be a concealment of the fact of the birth, and that concealment must be carried out by the secret disposition of the dead body. The secret disposition must be of such a nature that any one coming to the place where the body is would not be likely to see it. (66) (63) R. v. Abbott, 67 J. P., 151. (64) R. v. Telford. 8 Can. Cr. Cas., 223. (65) Except slightly in the wording thereof, and without altering the meaning and effect. (66) R. v. Rosenberg, 70 J. P., 264. 2ND EDIT. REVISED STATUTES 1906 REMARKS BODILY INJURIES AND ACTS AND OMISSIONS CAUSING DANGER TO THE PERSON. Sec. 241. Sec. 273. Wounding or shooting at a person with intent. Sec. 242. Sec. 274. Wounding. Unchanged. Upon an indictment for wounding by shooting with intent to disable, under section 241 (now section 273) of the Code, the jury is properly instructed that, if such intent is negatived, the accused may still be convicted of the simple offence of wounding under section 242 (now section 274), if the jury find that he pointed a loaded gun, and fired it at another and either knew or ought to have known that the gun was loaded. A verdict of "guilty, without malicious intent," upon such an indictment, was held to be a verdict of guilty of such lesser offence. (67) But this was reversed in appeal, the Supreme Court of Canada holding that the verdict of "guilty without malicious intent" was equivalent to a verdict of acquittal of the charge laid in the indictment, namely, that of wounding with intent to disable. (68) Upon a charge of shooting with intent to do grievous bodily harm, in which the plea is self-defence, it is a question for the jury whether the assault upon the accused, which had provoked the shooting, had ended or was still being pursued. It is a mis-direction to charge the jury that, to support a plea of self-defence to the infiiction of grievous bodily harm, they must find that the accused could not otherwise have preserved himself from death or grievous bodily harm, it being sufficient justification if the accused had a reasonable apprehension of grievous bodily harm to himself from the violence of the assault upon him and if he believed on reasonable grounds that he could not preserve himself from grievous bodily harm otherwise than by inflicting grievous bodily harm upon his assailant. (69) Sec. 243. Sec. 275. Shooting at the King's vessels. Wounding public officer on duty. Unchanged. To justify a sentence of more than three years imprisonment for assault and wounding a public officer, the charge must allege that the offence was committed while the officer was engaged in the execution of his dutv. A mere description of the assaulted party in the information as an acting detective does not justify a sentence of seven years on a (67) R. v. Slaughenwhite, (No. 1), 9 Can. Cr. Cas.. 53. (68) R. v. Slaughenwhite, (No. 2), or Slaughenwhite v. R., 9 Can. Cr. Cas., 173. (69) R. v. Ritter, 8 Can. Cr. Cas., 31. 2ND EDIT. REVISED STATUTES 1906 REMARKS plea of guilty, nor does it imply that the assault took place while the officer was engaged in the execution of his duty. (70) Sec. 244. Sec. 276. Disabling or drugging with intent to commit any indictable offence. Unchanged. Sec. 245. Sec. 277. Administering poison, etc., so as to endanger life or inflict grievous bodily harm. Unchanged. Sec. 278. Administering poison, etc., with intent to injure or annoy. Unchanged. Sec. 246. Sec. 248. Unchanged. Sec. 280. Attempt to cause bodily injuries by ex- (ii) sends or delivers to, or causes to be (iii) puts or lays at any place, or casts or throws at or upon, or otherwise applies to any person any corrosive fluid, or any destructive or explosive substance; or (b) places or throws in, into, upon, against or near any building, ship or vessel an explosive substance, with intent to do any bodily injury to any person, whether or not any explosion takes place and whether or not any bodily injury is effected, is guilty of an indictable offence and liable, in cases within paragraph (a) of this section, to imprisonment for life, and in cases within paragraph (b) of this section, to fourteen years' imprisonment. Changed, (as here set forth). Sec. 249. See. 281. Setting Spring Guns and Man-Traps. (70) R. v. Dupont, 4 Can. Cr. Cas., 566. Unchanged. person. safety of perUnchanged. Sec. 252. Sec. 284. Negligently causing bodily injury to any Unchanged. Sec. 253. Sec. 285. Injuring persons by furious driving. Sec. 254. Unchanged. Sec. 286. Impeding shipwrecked person. Unchanged. Sec. 255. Sec. 287. Sending unseaworthy ships to sea. Sec. 256. Sec. 288. Unchanged. Sec. 257. Sec. 289. Taking unseaworthy ships to sea. Unchanged. ASSAULTS. Sec. 258. Sec. 290. Assault defined. Unchanged. Sec. 265. Sec. 291. Common Assaults. Punishment. Unchanged. Sec. 259. Sec. 292. Indecent assault on female. Unchanged. Sec. 260. Sec. 293. Indecent assaults on males. Unchanged. Sec. 261. Sec. 294. Consent of child under fourteen no defence. Unchanged. It is not essential, in all cases of indecent assault, that complaint should have been made at the earliest opportunity after the offence, and, under special circumstances, evidence may be received of such complaint made after the lapse of several days. (71) Thus, the fact of the girl being only seven years of age, that the act was committed without violence and that the girl did not realize the serious nature of the act, are circumstances which make a complaint made ten days afterwards admissible in evidence. (72) Sec. 262. Sec. 295. Assaults occasioning bodily harm. Sec. 263. Sec. 296. Aggravated Assault. Unchanged. Unchanged. Unchanged. (70a) With the exception of a verbal alteration in par. (b), and with the exception of the addition of the words or unenclosed" at the end of the section. (71) R. v. Barron, 9 Can. Cr. Cas., 196. And see R. v. Smith, 9 Can. Cr. Cas., 21. (72) Ib. |