was it to be extended to all cases in which the indictment for a felony on the face of it charged an assault. See also Reg. vs. Ellis, 8 C. & P. 654. But they were of opinion that, in order to convict of an assault under this section, the assault must be included in the charge on the face of the indictment, and also be part of the very act or transaction which the Crown prosecutes as a felony by the indictment. And it was suggested that it would be prudent that all indictments for felony including an assault, should state the assault in the indictment.

This suggestion may be, here, usefully remembered in the framing of such indictments, other than murder or manslaughter, notwithstanding the words inserted in this section "although an assault be not charged in terms," which were not in the English Act.

In Reg. vs. Greenwood, 2 C. & K. 339, it was held by Wightman, J., that if on an indictment for robbery with violence the robbery was not proved, the prisoner could not be found guilty of the assault only, under this clause, unless it appeared that such assault was committed, in the progress of something, which, when completed, would be, and with intent to commit, a felony.

In Reg. vs. Reid, 2 Den. 88, it was held by five judges that the verdict of assault allowed by this clause must be for an assault, as a misdemeanor, and not for a felonious assault, and this has never since been doubted.

In Reg. vs. St. George, 9 C. & P. 491, the prisoner was charged with attempting to fire a pistol with intent, &c. The question was whether the prisoner could be convicted of an assault committed with his hand prior to having drawn out the pistol. Baron Parke held that the prisoner could only be found guilty of that assault which was involved in and connected with firing the pistol.

In Reg. vs. Phelps, 2 Mood. 240, the prisoner with others was indicted for murder. It was proved that Phelps, in a scuffle, struck the deceased once or twice and knocked him down that after this, Phelps went away to his own home and took no further part in the affray that, about a quarter of an hour afterwards, the deceased, on the same spot, was again assaulted by other parties, and received then an injury of which he died on the spot. On these facts the jury acquitted Phelps of the felony, and found him guilty of the assault. But the judges were unanimously of opinion that the conviction was wrong, as for a verdict of assault under the clause mentioned, the assault must be such as forms one constituent part of the greater charge of felony, not a distinct and separate assault as this was.

In Reg. vs. Crumpton, 1 C. & M. 597, Patteson, J., held that, in manslaughter, a jury should not convict a prisoner of an assault unless it conduced to the death of the deceased, even though the death itself was not manslaughter. See also Reg. vs. Connor, 2 C. & K. 518.

In the case of Reg. vs. Bird, 2 Den. 94, already cited, as the final blow to the enactment in question, in England, the Court, on the following division, decided that on an indictment for murder or manslaughter, the prisoner, under the said clause, cannot be convicted of an assault:

In the case of Reg. vs. Ganes, in Ontario, 22 U. C. C. P., 185, already cited, the Court followed the rule laid down by the majority in Reg. vs. Bird, and decided that, under the said section 51 of our Procedure Act, a verdict of assault cannot be given upon an indictment for murder or manslaughter. It may be remarked that, in this case, Chief-Justice Hagarty distinctly said that his own individual opinion was wholly with that of the minority in Reg. vs. Bird, viz: that, in such cases, a verdict of assault is legal. See also Reg. vs. Smith, 34 U. C. Q. B. 552.

In Quebec, in the cases of Reg. vs. Carr (2nd case), Reg. vs. Wright, Reg. vs. Taylor, all since 1869, and upon indictments charging either murder or manslaughter, verdicts of "guilty of assault" have been

given and received, without the appearance of the least doubt of their legality either from the bench or bar.

Upon an indictment for rape or for an assault with intent to commit rape, under sec. 49 of 32-33 Vic. ch. 20 (see ante, vol. 1, p. 307) a boy under the age of fourteen years may be convicted of an assault under the said section 51 of the Procedure Act: Reg. vs. Grimilow, 2 Mood, 122.

Upon an indictment, under sec. 10 of 32-33 Vic. ch. 20 (see ante, vol. 1, p. 227), for feloniously assaulting with intent to murder, a verdict of common assault may be given under the said section of the Procedure Act: Reg. vs. Cruse, 2 Mood. 53; Reg. vs. Archer, 2 Mood. 283. If a man has carnal knowledge of a woman by a fraud which induces her to suppose it is her husband, upon an indictment for rape, he must be acquitted of the felony, but may, under the said section 51 of the Procedure Act, be convicted of an assault : Reg. vs. Saunders, 8 C. & P. 265, by fifteen judges; Reg. vs. Williams, 8 C. & P. 286.

But to authorize such a verdict, the felony charged must necessarily include an assault on the person, and, for instance, on an indictment for administering poison with intent to murder, a verdict of assault cannot be given under this clause: Reg. vs. Watkins, 2 Mood. 217; Reg. vs. Dilworth, 2 M. & Rob. 531; Reg. vs. Draper, 1 C. & K. 176; but such a verdict may be given, if the indictment charges an assault, and the

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wilfully administering of deleterious drugs: Reg. vs. Sutton, 8 C. & P. 660.

It may safely be said that the authorities on the question are sufficiently clear as to one point, viz: that, under this section 51 of the Procedure Act of 1869, in all cases of felonies, which include an assault against the person, though an assault be not charged in terms, the jury may acquit of the felony, if such is not proved, and find a verdict of assault against the defendant, if the evidence warrants it: that is to if say, an assault forming part of the very act or transaction which the Crown prosecutes as a felony by the indictment has been proved.

It is true that as to indictments for murder or manslaughter, Reg. vs. Phelps and Reg. vs. Bird, in England, and Reg. vs. Ganes in Ontario, are given by the reporters as ruling, as an abstract principle, that in no case of murder or manslaughter a verdict of assault can be given under this section 51 of the Procedure Act; but a careful consideration of these cases will amply demonstrate that they do not bear such an interpreta

tion.

In the first of these cases, Reg. vs. Phelps, as already stated, it was decided that, upon an indictment for murder, the defendant cannot, under this clause, be convicted of an assault entirely separate and distinct from the felony charged: it was there proved that when the deceased was killed, when the murder was committed, the defendant was away from the spot and