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be sufficiently fenced on both sides of such points, so as to allow the safe passing of the trains.”* (Ib. s. 150.)
DAMAGING RALLWAY. — “If any person wilfully and maliciously removes or displace any railway switch or rail of any railroad, or breaks, injures, or destroys any track or bridge, with intent thereby to injure person or property, or to endanger human life, such person shall be guilty of a misdemeanor punishable by imprisonment with hard labour, for a term not exceeding twelve months. If in consequence of such act with intent as aforesaid, any person actually suffers bodily harm, such injury shall be an aggravation of the offence, rendering it a felony, subject to imprisonment for two years.” (Ib. s. 152.)
IF ANY PERSON BE KILLED, OFFENCE TO BE MANSLAUGHTER.-“If any person displaces or moves any switch, breaks down, rips up or destroys any tract, bridge or fence, or any portion thereof, whereby any engine, machine or structure or anything appertaining thereto is stopped, obstructed weakened or destroyed, with intent to injure any person or property, and if in consequence thereof any person be killed, the person so offending shall be guilty of manslaughter, and be imprisoned in the penitentiary for not more than ten nor less than four years.” (16. s. 153.).
COMMITTING INJURY, STOPPAGE, &c.—If any person wilfully and maliciously does, or causes to be done, any act whatever whereby any property of any railroad, any structure, or any engine is impaired or obstructed in any way, the person so offending shall be guilty of a misdemeanor, and be punished on conviction thereof by imprisonment with hard labour in the common gaol of the territorial division where the act has been committed, for a period not exceeding one year. (See ib. s. 154.)
OBSTRUCTING INSPECTORS.—Every person wilfully obstructing any railway inspector in the execution of his duty shall, on conviction thereof before any Justice having jurisdiction in
* The penalties incurred under these sections may be recovered by the Attorney General in any court of competent jurisdiction, and shall be paid to the Receiver General to the credit of the railway inspection fund. (See s. 193.)
the place where the offence was committed, forfeit and pay a sum not exceeding forty dollars, and in default of payment thereof at such time as directed, the same or any other Justice having jurisdiction where the offender resides, may commit the offender for a period not exceeding three months; such commitment shall be determined on payment of the penalty, and every such penalty shall be returned to the next Quarter Sessions in the usual manner. (See ib. s. 155.)
OFFICERS, &c., CONTRAVENING BY-LAWS.—If any employee of any railway company wilfully or negligently contravenes any by-law or regulation lawfully made and in force, or any order or notice of the board of railway commissioners, of which a copy has been delivered to him or posted up, or open to inspection in a place where any of his duties are to be performed; then, if such contravention causes injury or increased risk to person or property, though no actual injury occurs, such contravention shall be a misdemeanor, and the person convicted thereof shall, in the discretion of the court, and in proportion to the greatness of the risk of injury, be punished by fine or imprisonment, or both, the fine not to exceed four hundred dollars, and the imprisonment not more than five years; and in case the imprisonment be two years or more, to be in the provincial penitentiary. (See ib. s. 156.)
If such contravention does not cause injury to person or property, or increase the risk of injury to person or property, then the employee guilty thereof shall incur a penalty not exceeding thirty days' pay nor less than fifteen days' pay, according to the direction of the convicting Justice; and such penalty may be recovered with costs before any Justice having jurisdiction where the offence was committed, or where the offender is found, on the oath of one credible witness other than the informer. (See ib. s. 159.)
COMPANY MAY IMPOSE.—“Any railway company may, by a by-law, impose on any officer, servant or person who before the contravention of the by-law has notice thereof and is employed by the company, a forfeiture to the company of not
less than thirty days' pay of such officer or servant for any contravention of such by-law, and may retain such forfeiture out of the salary or wages of the offender.” (16. s. 162.)
Notice, how proved.—“The notice of the by-law, or of any order or notice of the board of railway commissioners, may be proved by proving the delivery of a copy thereof to the officer, servant or person, or that he signed a copy thereof, or that a copy thereof vas posted in some place where his work or his duties, or some of them, were to be performed.” (16. s. 163.)
Application of Penalties—“ One moiety of such penalty shall belong to her Majesty for the public uses of this province, and the other moiety to the informer, unless he be an officer or servant of or person in the employ of the company, in which case he shall be a competent witness, and the whole penalty shall belong to her Majesty for the uses aforesaid.” (16. s. 160.)
Company may deduct from Wages, &c.—“ The company may in all cases under this act pay the amount of the penalty and costs, and recover the same from the offender, or deduct it from his salary or pay.” (16. s. 161.).
RESCUE NATURE OF OFFENCE.—The offence of rescue nearly resembles that of prison breach, treated of ante, page 421.
When the party rescued is imprisoned on a charge of misdemeanor, the offence is a misdemeanor; and when he is imprisoned on a charge of felony the offence is felony. .
PROOF OF CUSTODY OF THE PARTY RESCUED.—To make the offence of rescuing a party felony, it must appear that he was in custody for felony or suspicion of felony, but it is immaterial whether he was in custody of a private person or of an officer, or under a warrant of a Justice of the Peace, for when the arrest of a felon is lawful, the rescue of him is felony. But it seems necessary that the party rescuing should have knowledge that the other is under arrest for felony if he be in custody of a private person, though if he be in the custody of a constable lie is bound to take notice of it. (1 Hale P. C. 606.)
RESCUING PERSONS CONVICTED OF MURDER. (See ante, p. 389.)
RESPONSIBILITY FOR CRIME. Certain persons, from age, natural infirmity, or want of freedom of will, are deemed incapable of committing crimes, and are exempt by law from criminal responsibility.
INFANTS.-An infant under the age of seven years cannot be guilty of felony; above the age of seven, if it appear that he has capacity to discern between good and evil, he is capable of guilt according to his discernment. But the presumption continues in favour of his innocence till he attain the age of fourteen, at which period he is, as to the commission of crimes, supposed to have attained discretion, and his actions are subject to the same responsibility as the rest of society. No infant under fourteen, however, can be guilty of rape.
WOMEN.—If a woman commit theft, burglary, or robbery, by the coercion of her husband, or even in his company, which presumes coercion, she is not guilty of these crimes; but such exceptions do not extend to treason, murder, or manslaughter.
IGNORANCE, &c.—Persons committing crimes by casualty or misfortune, by ignorance or mistake of facts (not of law), by compulsion or necessity, are not punishable; but each of these circumstances,-ignorance, necessity, or infirmity,—must be strictly and satisfactorily made out by the party who relies on them for justification.
IDIOTS AND LUNATICS.— Idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities, not even for treason itself. But he who is guilty of a crime throngh voluntary drunkenness may be punished for it as much as if he had been sober; and he who causes & madman to commit a crime is a principal offender, and so liable as if he had committed it himself.
RETURNS OF CONVICTIONS. RETURN TO THE QUARTER SESSIONS.—“Every Justice of the Peace before whom any trial or hearing is had under any law giving jurisdiction in the premises, and who convicts and imposes any fine, forfeiture, penalty or damages upon the defendant, shall make a return thereof in writing under his hand to the next ensuing Quarter Sessions of the Peace for the county in which the conviction takes place, and of the receipt and application by him of the moneys received from the defendant; and in case the conviction takes place before two or more Justices, such Justices being present and joining in such conviction shall make an immediate return thereof as nearly as circumstances permit, as set forth in the following
FORM. RETURN of convictions made by me (or us, as the case may be) in the month
of — 184
A. B., convicting Justice,
(as the case may be). And the Justices to whom any sueh moneys may be afterwards paid shall make a return of the receipts and application thereof to the next General Quarter Sessions, which return shall be