TREATISE OK Criminal Law AS APPLICABLE TO THE DOMINION OF CANADA. BT S. R CLAKKE, OP OSOOODE IIALI., B Ai, 1 I S T E R - AT - L A W. TORONTO: R. CARSWELL, LAW BOOKSELLER AND PUBLISHER, 10 KING STREET EAST. 1872. Entbrkd according to Act of the Parliament of Canada, in the year of our Lord, one thousand eight hundred and seventy-two, by SamueIj Robinson Clarke, Barrister-at- Law, in the Offlce of the Minister of Agriculture. PRINTM BT HUNTER, RO'SE & Co., TORONTO. TO THE RIGHT HONORABLE SIR JOHN ALEXANDER MACDONALD, K.C.B., MINISTER OF JUSTICE FOR THE DOMINION OF CANADA, ONE OP HER MAJESTY'S MOST HONORABLE PRIVY COUNCIL, &c., &c., &c., BY WHOSE EXERTIONS, AND UNDER WHOSE ADMINISTRATION, THE CRIMINAL LAW OP THE CONFEDERATED PROVINCES HAS BEEN ASSIMILATED, THIS WORK IS, BY PEUMISSION, MOST RESPECTFULLY INSCRIBED, BY HIS MOST OBEDIENT SERVANT, SAMUEL ROBINSON CLARKE. OsoooDB Hall, October, 1872, PREFACE. In the following pages, I have attempted to supply a want long felt by the Members of the Profession in Canada. Since the establishment of Courts in the country, the common law of England having been adopted, the decisions of the several Courts are very much in har- mony in each of the Provinces which now form the Dominion, In addition to this, the Acts passed since the Confederation of the Provinces have, in a great measure, assimilated the Statute Laws, so that there is now one uniform Code of Criminal Jurisprudence pre- vailing from the Atlantic to the Pacific. It is obvious that, under these circumstances, the decisions of each Province are of essential importance in expounding the law now prevailing in all ; and the contemplated establishment of a Supreme Court for the Dominion renders it very desirable that the ad- ministration and interpretation of the laws should not vary in the different Provinces. I have, therefore, collected all the cases on Criminal Law which have been decided in the several Provinces, thereby making the Work essentially Canadian in its character. All the cases in "The Law Reports" have also been given. J:*'rom these limited materials, I need scarcely say, I do not pretend to call my w^ork a complete Treatise. If it is complete in being an accurate VI PREFACE. Digest of all Canadian cases, my aim and ambition will be satisfied. The Chapter on Extradition is altogether confined to Canadian cases; and a very considerable portion of the Work will be found to be made up of original materials, hitherto unappropriated. In the preparation of the Work, I have searched and examined the following liei^orts — namely, (Nova Scotia), James, Thomson, Cochran, and Ol(Irig;ht ; (New Brunswick), Kerr, Allen, and Hannay ; (Quebec), Lower Canada Reports, Vols. One to Seventeen, inclusive. Lower Canada Jurist, Vols. One to Fifteen, inclusive, Stuart's Appeal cases and Vice-Admiralty cases, with the Digests of Robertson and Ramsay ; (Ontario), Queen's Bench Reports, O.S., Six Vols., N. S., Vols One to Thirty- one, inclusive. Common Pleas, Vols. One to Twenty-one, inclusive. Upper Canada Law Journal, O. S., Ten Vols., N. S., Eight Vols,, Practice Reports, Five Vols., Cham- ber Reports, Two Vols., Error and Appeal Reports, Three Vols., and the Reports of Draper and Taylor. I beg to express my thanks to the many kind friends who have encouraged and assisted me in the Work. To the Hon. J. H. Okay, D.C.L., M.P., I am particularly indebted. Several manuscript cases, inserted in the Work, have been forwarded by the Hon. J. C. Allen, of Frederickton, N. B. Thanks are also due to Geo. A. Boomer, Esq., Barrister-at-Law, and Mr. W. M. Hall, Student-at-Law, for the care and labour bostowed on tb'^ Index and Table of cases. Considering the great importance of every branch of the law relating to criminal jurisprudence, it is a matter of surprise that no Treatise on the subjects discussed in the following sheets has been written by any member of the profession of the law during our existence as a Colony. PREFACE. VU During" a long' period the criminal laws of our country have grown up, as it were, with the necessities of our advancement and progress. Many interesting points have been argued by eloquent and able advocates, and decided by learned and enlightened judges; and the recent learislative effort to assimilate the criminal laws of the Confederated Provinces, has made them such as to induce an expression of my earnest hope that the ex- cellent Code of laws which has been extricated from the discursive mass by which they were encumbered, digested by experience, and methodized by reason, forming a lucid and harmonious w^hole, may long remain as a monument to our Confederated Provinces, paying a homage to reason and to right; and that our Sister Provinces may prolit by the example of our own, for whom the codifiers of our Criminal Law may be truly said not to have laboured in vain. Criminal Jurisprudence has not hitherto fallen within the scope of Canadian legal authors ; and, although the practising lawyer may, perhaps, be more disposed to refer to my work than to peruse it, I trust that, at least, his frequent references to it, guided as he is by a copious Index readily to what he may require, will induce a favourable reception of my undertaking, which has been to furnish the Profession with a volume on Criminal Law and Practice, at once compendious and useful. Relying on the kindness of those who may peruse this book with a friendly disposition to its author, and the candour of those who may refer to it for the sake of information alone, I now offer it to the PubUc, and to the Profession, of which I am a member, with a sincere desire that it may be useful to both. S. R. C. OsGooPE Hall, Toronto, \Wi May, 1872. UJ. . 'I;.,-,-'.- ..VJ r" *' ''■^',.1— ^-. - ■»-»^-T' '> V. '-■• 1 »>'. TABLE OF CONTENTS. INTRODUCTORY CHAPTER. PAOK. The English Criminal Laws prevailing in the Dominion 1 SPECIAL CHAPTER. Extradition 23 CHAPTER I. Crimes in General 71 CHAPTER II. THE PERSONS CAPABLE OF COMMITTING CRIMES, AND THEIR SEVERAL DEGREES OF GUILT. Infants ^ Persons non compotes mentis 92 Persons in Subjection to the Power of Others ^'^ Ignorance 9^ Principals, in the First and Second Degrees 97 Accessories, Before and After the Fact 102 CHAPTER III. OFFENCES PRINCIPALLY AFFECTING THE GOVERNMENT, THE Pt'BLIC PEACE, OR THE PUBLIC RIGHTS. Coinage offences 109 Foreign Enlistment Offences 112 Seducing Soldiers or Sailors to Desert 118 X CONTENTS. PAGE. Piracy 121 Customs Offences 124 Excise Offences 130 Componneling Offences 141 Extortion , 143 Sale of Oflices 146 Misconduct by Officers 148 Monopoly 152 Champerty and Maintenance .. 154 Bigamy 160 Libel 168 Riot 189 Forcible Entry or Detainer 192 Nuisances 197 To Highways 202 To Navi-able Waters 227 Obstructing the Execution of Public Justice 234 Escapes 237 Prison Breach " 239 Parliamentary Offences 240 CHAPTER IV. OFyENCES AGAINST THE PERSON. Murder 243 Man slaughter 252 Justifiable Homicide 261 Excusable Homicide 262 Concealing Llie Birth 262 Rape 264 Assault and Battery 269 CHAPTER V. OFFENCES AGAINST PROPERTY. Burglary 281 Robbery 287 Larceny 289 Stealing from the Person 318 CONTENTS. Xi Embezzlement ooA Obtaining by False Pretences 332 Keceiving Stolen Goods o^, ^«^Sery Z[Z[Z.'ZZ 356 Cheats and Frauds 3^.^ False Personation o^o Malicious Injuries 3W„ Arson ^^^ CHAPTER VI. ^^""^"^y 382 Conspiracy ^^^ CHAPTER VII. Annotations of Miscellaneous Statutes 410 CHAPTER VIII. Evidence 449 CHAPTER IX. ^^^'^•^"^g 491 CHAPTER X. Practice .... 512 TABLE OF ABBREVIATIONS. Allen ,... Allen's Reports, New-Brunswick. Arch. Cr. Pldg Arclibold's Criminal Pleading. Bei'ton Berton's Reiiorts, New-Brunswick. Chr. Reps Chamber's Reports, Ontario. C L. J., N. S Canada Law Journal, New Series. Cochran Cochran's Reports, Nova Scotia. Draper Draper's Reports, Ontario. E. and A. Reps Error and Appeal Reports, Ontario. Grant Grant's Chancerj' Reports, Ontario. Hannay Hannay's Reports, New-Brunswick James James' Rejiorts, Nova Scotia. Kerr Kerr's Reports, New-Brunswick. L. C. G Local Courts' Gazette, Ontario. L. C. J Lower Canada Jurist. L. C. R Lower Canada Reports. Oldright Oldright's Reports, Nova Scotia. Rev. Critique La Revvic Critique de legislation, et de juris- prudence du Canada, TJontreal. Rob. Dig Robertson's (Andrew) Digest of Reports, Q\ie- bec. Russ. Cr Russell on Crimes and Mi.sdemeanors. S. L. C. A Stuart's Lower Canada, Aj>peal cases. S. V. A. R Stuart's Vice Admiralty Reports, Quebec. Taylor Taylor's Reports, Ontario. The Chesapeake Case... A pamphlet containing a full report of ibis case, New-Brunswick. The S*^^. Albans Raid... A small book containing a full report of tlii? case, (,j>uebec. Thomson Thomson's Reports, Nov.i Scotia. L^. C. C. P Common Pleas' Reports, Ontario. U. C. L. J Upper Canada Law Journal. U. C. P. R Pi-actice Reports, Ontario. U. C. Q. B Queen's I'onch Reports, Ontario. U. C. Q. B.,0. S " " " " Old Series. TABLE OF CASES CITED. PAGR Adams ex parte B71 Agnew V Stewart 539 Allan V Mc Heffoy loo Allen, Doe d v Murray 22 Allen V L & S W Ry Co 259 Allen and Thompson 440 Allison, Re 138, 521 Anderson, Doe d v Todd 1-2 Anderson, ex parte 26 Anderson, Re... 23, 33, 40, 45, 6G Anderson V Radclifl'e . 158 Andrews v Wilson 171 Anonymous 189 Apoth Co V Bentley 450 Appleton V Lepper 518 Armstrong v McCaffrey 629 Arnold v Blaker 212 Ashley vDundas 97, 259 Askin V London District Council 21, 144 Aston V Wright 486 Atty Genl v Beaulieu 588 Atty Genl v Dockstader 582 Atty Genl v Halliday 411 Atty Genl v Laviolette 581 Atty Genl v Mackingtosh 410 Atty Genl v Macpherson. . . . 581 Atty Genl v Meyers 127 Atty (Jenl v Perry 231 Atty Genl v Radloff 71 Atty Genl v Riddell 104 Atty Genl v Siddon 104 Atty Genl v Spafford 128 Atty Genl V Walsh 127 Atty Genl V Warner 22, 127 Aubrey q t v Smith 159 Baby q t v Watson 159 Baker and Corporation Salt- fleet 220 Baldwin q t v Henderson .... 20 Ballard v Pope 145 PAGE Bancroft v Mitchell 71 Bank of Montreal v Bethune 20 Bank of Upper Canada v Be- thune 20 Barber v O'Hara 556 Baretto v Pirie 170 Barnaby v Gardiner 563 Barnhart, Re Justices, Home District 145 Barrette v Bernard 372 Barrett Re 132 Bartlett ex parte 575 Bartlett v Pratt 212 Basterach v Atldnson 214 Bateman v Bluck 214 Battersbey v Odell 412 Bazin and Crevier 571 Beasley q t v Cahill 20 Beaumont v Barrett 11 Bedard, Re 241 Beebe, Re 531 Belford v Haynes 209 Bigger, Re 557 Bird V Brian 133 Blair v Hopkins 474 Blossom ex parte 406 Boston and Lelievre 571 Boswell and Loyd 193 Boulton V Fitzgerald 22 Boyer ex parte 567 Boyle, Re 659 Brash q t v Tagi^art 575 Breakey v Breakey 160 Breeze ex parte 130 Bright, Re 116 Brisson v Lafontaine 278 Brook V Brook 165 Brooke, Re 678 Brosa v Huber 202 Brown vDalby 73 Brown v Gugy 197 Brown V Hirley 169 XVI TABLE OF CASES CITED. PAGE Brown V McKeel 232 Brown, Re 477 Brown v Shea .' 258 Browne v Carter 4G1 Budenberg .and Roberts 552 Biirley, ReBG 33, 40 Barton q t V Yonng 4(51 Bustard Re Complaint, v Sclio- field 580 Bustin ex parte 22, 50!) Butcher v Butcher 1 03 Butt vConant 545 Cahlwell ex parte 120 Cakhvell Re, R B 39, 43, 53 Campbell v Reg 570 Campbell v Spottiswoode 180 Carmichael, Re 553 Cannichael, Re John 550 Carr v Tann ihill 1"5 Carrick v Johnston 221 Caswell V The St, M & P L J RCo 223 Caudle v Ferguson 257 Cavorley v Caverley 200 Chaneyv Payne 134 Cliowne V Baylis 75 Church ex parte 502 Clapp V Lawrason 537 Clark V Stevenson 440 Clarke, Re 114 Clarke v Wilstm. . . 7<) Cleland v Robinson 190 Clemens q t V Beuier Clill'U Iv Bramhm........ 191 Clifibrd ex parte 133 Colbeck V Corporation of Brantford 223 Colev Maxwell 211 Coleman, Re 577 Conklin, Re 503 Connick v Wilson 171 Connolly v Woolricli 107 Ci »nnors v Darling 513 Cooke ex parte 72 Cooke V Wildes 183 Cooper, Re 530 Cooper V Wellbanks 220 Coi)ely and Burton 140 Corby V McDaniel 20 Corignaii v Harbour Comrs. Montreal 520 Corporation Burleigh v Hales 221 PAGE Corporation Sarnia v G W R Co 221 Corporation Wellingt(m v Wilson 225 Corriveau ex parte 584 Cousine ex i)arte 131 Cousins V Morrill 109 Coward v Baddeley 270 Cox V Lee 171 Crane v Holland 021 Croft V Stevens 187 Cronyn v Widder 19, 190 Crosljy V Leng 73 Cross V Richardson 488 Croukhite v Sommerville . . . . 258 Crow Re 527 Cinnmiugs ex parte 500 Cuvillier v IVlunro 241 Dagonay v Hunter 70 Daley ex parte 484 Dartnell, Re 145 Davis ex parte . . , 572 Davis V Lennon 277 Davis v Scarce 140 Davis V Stewart 524 Davisim V Duncan 179 Daw V. Metro. Board Co 119 Dawkins v Ld Paulet 174 Dawson V Fraser 531 De Beaujen ex parte 525 Deal and Schotield 140 Deercourt v Corbishley 268 Delaney, Re v Macnab 535 Delisle and Delisle 148 Demers ex parte 572 Dennis V Hughes 220 Dickenson v Burrell 158 Dickson V Crabb 530 Dillingham v Wilson 10-18 Dimes v Petley 201 Donnelly, Re 524 Donogli q t V. Longworth ... 437 Dovle V Falconer 10-11 Doyle Re 430 Downing V Capel 257 Drew v>>a])y 202 Diigdale V Reg 80 Duniouchol ex parte 444 Dunlap ex parte 517 Dunh>p V Reg 024 Dunne v O'Reilly 15 Duval dit Barbinas V Reg ... 489 Dwight V Ellsworth 142 TABLE OF CASES CITED. XVll PAu<,rh vM'Intee 181 M'Cully V M'Cay 13(5 M 'Cumber, Re 54!) M'Curi^y v Swift 7G M'Dernlott Re 037 M'Doiiald V Cameron 310 M'Donald v Stuckey 525 M'Farlaue v Lindsay 410 M'Cuines, Re 120 M'Guire v Liverpot^l and Lon- don Assurance Co 7(» M'Innes v Davidson 53!) M'Intee '• M'Culhmgh 183 M'Intyre v M'Bean 181-243 M'KayvM'Kay 552 M'Kenua v Powell 443 M'Kenzie v (libson 259 M'Kenzie v Muwljurn 530 M'Kenzie v Miller 20-169 M'Kinnon, Re 427 M' Lean and M 'Lean 577 M'Nab vliidwell 11 M'Nab v M'(;lrath 375 M'Nellis v Gartshore 519 M'Quin ex parte 525 Naiker v Yattia 038 Neill V M'Millan 484 Neill vTaylor 70 Newton v Hariand 1!)3 Notman v Reg 20 O'Flagherty v M'Dowell 413 Olivia V liissonnault 229 Ollard, q t V Owens 437 O'Xeill V. Kruger 154 O'Neill V Longman 154 O'Resran ex parte 507 O'Reilly q t v Allan 437 Oultonv Carter 220 Ovens V Taylor 279 Painter v Liverpool Gas Co... 528 PAOR Papin ex parte 9 Parker V Elliott 231 Parkes v Prescott 1 04 Parks ex parte 72, 132 Peaclie and C(jlenian 140 Pease v Me Aloon 73 Peltier v Miville 70 Peplow and Richardson . . . 140 Perley v Dibblee 230 Peters v Irish 402 Phillips v Eyre 0, 12, 13, 150 Pirie and Corporation of Dun- das 152 Piton and Lemoine 570 Plante ex parte 557 Poitevin v Morgan 180 Pollard Re 543 Pomeroy and Wilson 553 Poole V Huskinson 214 Pop] im V Pickburn 187 Porters trusts, lie 101 Port Whitby R Co V Cor- poraticn Town Whitby 223 Poussett, Re and Corporcation Lambton 145 Powell V Williamson 258 Power V Canilf 199 Pi'efontaine ex parte 507 Price V Perceval 144 Pringle V Allan 22, 110 Prosser v Edmonds 155 Prouffe V Corporation Mari- posa 215 Purdy (J t V Rydei' 22 Rv Abbott 339 R v Abingdon, Ld 179 R v Allan 213 Rv Allen 122, 101 R V All Saints, Southampton. 514 R v Alsop cm R v Anderson 122 R V Andrews 437 R V Archer 90 Rv Ardley 342 R v Armstrong 320 Rv Arnold 475 Rv Atkinson 171 Rv Aumond 128 Rv Avery 308 R v Aylett 382 R vBaby 430 Rv Bailey 293,284 XX TAIJLE OF CASKS ClTEl). PAOK RvBain 80 R vBake 193 Rv Baker ■ 287 Rv Baldly 472 RvBalls 329 R V Balme 237 R V Barbeau 570 R V Barnes 314 R vBarrow 2G5 R V Barthclmy 599 R vBathgate 124 R V Baycloy 351 R V Beale 207 R vBeavan 194 R V Beavor 477 Rv Beckwith 459 R V Beekmaii 438 R V Beeston 477 R vBell 22, 108 R V Bellinghaiu 192 R V Belton 549 R V Belyea 510 RvBentield 109 R V Benjamin 102, 143 R V Bennett 143 R V Bennett H. young. . . . 23-24 R V Berchall 253 Rv Bertles 334 R V Bertrani 490 R V Berube 457 R vBest 403, 143 R V Beveridge 22, 412 R v Bidwell 448 R v Bienvenn 102 R V Bird 272 R V Birnie 257 R V Blackson 504 R V Blake 405 RvBleasdale 312 R V Blossom 585 R V Boardman 9 RvBond 475 R V Boss 339 RvBoteler 514 R V Boultbee 579 R V Bonlter 400 R vBoiilton 218 R V Bowers 322 R V Boyal 82 RvBoyes 400 R V Boyle 513 R V Brackenridge 3()4 R V Brady 330 I'AflK R V Braitliwaitc 400 R V Biamley 303 R V Brawn 101 R V Bray 591 R V Brice 283 R V Brimilow 92 R V Brissac 405 R V Brittain , 218 R V Broad 398 Rv Brooks 90 R v Brown and Street 200 R v Bruce 123 R V Bryan 342 R V Bryans 339 R V Buchanan 81, 211 R V l^nck 82 R V Bull 351 R V Bullock 321 R V liulmer 343 R V BurdcU 595 R vBurgen 339 R V Burrowes 284 R V Jiurton 93 R V Butler 84 R V Buttle 399 R V Bykerdike 154 R V 15 tt L H Ry Co 330 R V Caisso 279 R vCaister 434 R V Gale 77 i R V Callaghan 397 ; Rv Campbell 100, 570 R V Carlile 78 RvCarlin 115 R V Carpenter 330 R v Carroll 94 R V Carson 302 R V Carter 314 R V Cartwriglit ... 84 R V Cassidy 127 R V Castle 309 Rv Caswell 521 R V Chamberlain 590 R V Chambers 305 Rv Chandler 8, 411 R V Chajjman 325 R V Charlcsworth 459 R V Child 381 R V Chillas 507 R V Chipman 232 R V Christopher 290 R V Chubbs 451 Rv Clarke 100 TABLE OF CASKS CITED. XXI PAOE U V Clement 84 RvClcwes 473 RvCloas 302 RvClouter 45G RvCockburn 207 R V Cockroft 4G4 R V Cohen 95 R V Cokely 194 R V Collins 80 R V Collison 98 R V Conirs Highways, St Jose])]! 1 52 RvConnell 85 Rv Connolly 84 Rv Connor 193 R V Cooke 309 Rv Cooper 100 R V Corporation Haldiniand. . 200 R V Corporation Lonth 222 R V Corporation Paris 199-221 R vCory 291 Rv Courtney 392 R vCoyle 012 RvCrab 332 R V Crabbe 557 Rv Craig 300-371 RvCraw 100 R V Creamer 102 Rv Cregan 272 RvCridland 514 Rv Crisp 142 Rv Crooks 281 RvCross 78,202 R V Crossley 81 RvCroteau 588 R V Crozier 033 R vCrutchley 245 R V Cudihey 588 R V Cumberland 78-81 R V Cummins 78-81 R V Cummings 283 R V Currie 401 R vCurtley 97 Rv Cutbush 520 R vDale 335 R vDanger 343 R V Dant 253 R V D'Aoust 032 Rv Davies 290 R vDavis 77, 277 Rv Dawson 307 Rv Deane 211 R V De Berenger 407 PAGE R V Dennis 574 RvDent 372 R vDenton 78 R v Desgagne 573 R V Des Jardins Canal Co.... 223 R V Dessaner 340 R V Devonshire, Mar([ui3 214 RvDicks 95 RvDillon 317 R vDingman 272 R vDiprose 323 RvDixon 90 R V Dogherty 373 R vbolan 354 R v Dcmaghne 105 R V Dorion 312 R vDoty 389 R V Dowey 340 R V Downey 250 RvDring 355 RvDriscoll 312 RvDruitt 154 RvDuffield 154 Rv Duffy 178 R V Dugdale 86 R vDuniop 202 R V Dunning 396 R V Duns^on 392 R V Duval dit Barbinas 489 RvDuvaney 528 Rv Eagle 247 R vEagleton 80 R V Earl of Somerset 100 R vEarnshaw 500 R V Ebrington 510 RvEccles 407 R V Edwards 289 R V Egerton 479 RvEldershaw 92 Rv Ellis 508-479 RvElrod 108 R V Elworthy 481 R V Enock 245 RvErridge 578 R V Esmonde 85 R vEssex 322 Rv Evans 338 P, V Ewing 78 R vEyre 447 RvFalkingham 423 Rv Fallon 103 RvFaneuf 272 RvFanning 161 XXI 1 TABLE DK CASES CITED. I'AOK RvFarringtun 378 R vFarn.w 2M R vFaulkiuir '..... 1:5^ R V Foiiruloy '2',i7 R V Fellowes 405 R V Foimoty '251 R V FeryiiBoii 1 ;>0 R vFick 2(15 R vField 4{\7 R vFinklo 470 Rv Firth ;jll R V Fishor :}7:3 R V I'itzgurald 577 R V Flynu 250 R vFolville 223 R V Forbes 235 R vForcl 003 R V Foster 413, 480 R V Frainptoii 353 R V P^rancos 03 R V Francis 205 Rv Franz 08 R V P'raser 401 Rv French 133 Rv Frost 502 R V Fiillarton 503 R V Furzey 1.02 Rv Gayan 380 R v(!aiu1)le 240 R v (Janes 273 Rv Garbett 402 R V G ardner 337, 400 R V Garner 474 R vGarrett 304 RvGash 237 RvGayh)r 103 RvGemmell 333 R V George 450 R V Gerber 456 Rv Gibbons 390 Rv Giles 333 R vGill 400 RvGillis 471 R V Gingras 6C2 R vGlyde 294 R vGoato 301 RvGodfrey 348 R V Goff 84 RvGoodard 392 R V Goodenough 327 R V Goodman 380 Rv Goodwin 110 R V Gorbutt 317 I'AOE R V Gordon 108, 209 R V (Jotley 143 11 V (Jough 289 Rv Gould 48, 237 R v Gray 033 R V (h-een 314, 500 R V Greenauru 103 R V Greenland 395 R V Greenwood 387 R V Groiforv 87 Rv (iriepe' 390 R V Grilliths 359 R v(hindley 94 R V Gr(jonibridge 91 R V Groves 324 R V Guardians' Cam Union. . 549 R V (intch 105 Rv Guthrie 208 R V G W R Co 214 R V Gzowski 234 R V HadHeld 435 Rv Hagar 430 R V Hague 373 R V Haines 282 RvHall 214,407, 500 Rv Halliday 458 R V Hanibly 453 RvHamiltHcklin H8, 171 R V lli,t,'gins '2lil, 584 R V H ijfgiusdii !>;{ R V Hij^'iiain 515 R V Hill ai7 Rv Hilton 102, 50!) RvHiiid. 481 R V Hii)pinstiile 245) Rv Hoaio 304 Rv Hoatson 301 Rv Hohson 350 R V Hodgkiss 383 R V Hodgson 404 RvHogg 372 RvHog.;aid 133, 502 RvHoldon 301 RvHolliuid :.40 RvH..ll(nvay 328 R V Hohiian 505 R V Holmes 403 RvHolt 140 RvHohoyd 81 RvHook 401 RvHorne 77, 397 R V Horscniati 510 R vHowoll 98, 407 R vHubur 202 Rv Hughes 253 R V Hughs(.n 194 R V Huinie 401 R V Humphreys 458 R V Hunt. 1 54, 204, 510-1 RvHuuter 338 R V Huntley 494 RvHnppel 340 R V Hutchinson 253 R V Hyams '282 R V Hyde 571 R V Ingham o38 R V Ingram 96 R V Inhab., (iaret and Long- bridge 223 Rv Inhab., Hodretts 165 R V Inhabs, , St Benedict 213 R V I pstones 574 R V Ives 629 R V J ackson 1 95, 31 5, 503 R V Jacobs 160, 405 R V Jarvis 472 R V Jenkins 284 R V Jennings 313 J'AOE R V Jennison 334 R V J errett 456 R V Ji HHo]) 339 R V Johiiwon 77 R V Jone.4. . . . 325, 449, 400, 474 R v.Fope 491 R v Jonhm 92 R v Josephs 505 R V Jowle 505 R V Jukes 139 R V Justices, Hathurst 550 R V .Justices (jf JJathurst. . . . 550 R V Justices, (Cumberland . . . 515 R V Justices, Huron 030 R V Justices, Newcastle 507 R V Justices, Norfolk 548 R V .uistices, Surrey 501 R V Justices, Westmoreland.. 570 R V .1 ustices, York 551 , 029 R V Kay 303 R V Keena 329 R V Keith 304 Rv Kelly 189 R V Keiuiedy 253 R vKenrey 029 R V Kenrick 402 R V Kerr 252 R V Kilham 299 Rv King 139 R V Kiiniersley 408 R V Kinsman 124 R V Kivkwood 305 R V Knight 224 R V Knowlden 591 R V Lacom1)e 014 R V LafFerty 503 R V Lambert 325 R V Lamere 599 R V Larkin 503 R V Lavey 390 R V Law 570 R V Lawrence 281 RvLebfeuf 303 R V Ledbetter 478 RvLee 332, 361,400 R V Leech 344 R v Lees 207 R V Lesley 122 R V Levecque 445 RvLevett 97 R V Levien 638 R V Levine 342 R V Levinger 412 XXIV TABLE OF CASES CITED. I'AfiE Bv Lewis 282, 407 Rv Light 258 Rv Lister - 324 Rv Littlechild 020 R V Locost 285 Rv Lopez 122 R V Lord Mayor, London 195 R V Lowrie 313 R V Loyd Jones 325 R vLuck 100 R vLv.mley 103 R V Lynch 100-416 R v Lyons 3(51 RvMacarty 407 R V Macdonald 305-400 Rv Madden 96102-411 R V Magee 274 RvMagrath 420 R V Mandesley 474 R V Manning 90-377 Rv March 379 R v Marcns 361 Rv Marks 533 RvMarsden 261 Rv Marshall 322 R V Martin 197 R V Mason 142-396 R vMassey 306 R V Master 71 R V Masters 351 Rv Matthew 448 Rv Matthews 494 RvMav.'bey 402 Rv Maxwell 395 R YMayle 322 R V Mayor, Tewkesbury 90 R vMcad 481 R v Meakin 94 R V Mears 407 R V Mellish 331 R V Mellor 615 R V Mercer 80-146 R V Messingham 354 R V Meyers 221 Rv Millar 478 R V Miller R vMills 222 R V Moah 325-362 R V Mockford 319 R V Moodie 21-90-147 R V Morgan 301 R V Morris 95 R V Morston 570 PAGE R V Morton 31-32 R V Mosier 513 R vMoimtjoy 208 R vMoylan 189 R v M. S. & L. Ry. Co 151 RvMulcahy 87 RvMullady 583 R vMunro 426 Rv Murphy 405-500 R V Murray 391-549 Rv Mascot 400 R vMyott 348 R V M'Cann 85-415 R vM'Connell 22 RvM'Corkill 370 R V M'Cormick 22 RvM'Donald 235 R vM'Donel 610 RvM'Eldeny 188 RvM'Evoy 271 RvM'Ginnis 311 RvM'Grath 290 RvM'Greavy 22 RvM'Gregor 226 RvM'Ilroy 451 RvM'Intosh 384 R V M'lntyre 150 RvM'Kale 300 Rv M'Kenzio 630 RvM'Kinnon 276 RvM'Kreavy 194 Rv M'Lean 634 R V M'Laughlin 448 R vM'Lellan 612 RvM'Mahou 100 R V M'Naney 573 RvM'Naughton 93 R V M'Pherson 86 RvM'Quarrie 347 R V M'Quiggan 168 R vNaylor 336 R V Neale 408 R V Newborough, Ld 501 RvNewboult 380 Rv Newton 162 R V Nichol 390 Rv Nichols 408 R V Oates 345 Rv O'Brien 316 RvO'Donnell 453 RvOttord 93 R v Oliver 368 R V Orr (506 TABLK OF CASES CITED. XXV PAGE R V Osmer 236 R V Ouellette 206 R V Oulton 573 R V Overton 390 R V Owen 91-282-463 R V Oxentine 633 R V Pah-niah-gay 457 R V Paice 379 R V Palliser 18 ; Rv Parker 367-473, R V Parsons 405 RvPattee 9-489 1 Rv Patterson 120 RvPatton 201-412! R V Paxton, John 33-68 R V Payne 240 R V Pearce 387 . R V Pearson 515 ! Rv Peck 327 ^ RvPedley 202-393 R v Pelletier 393 ; R V Penson 161 i R V Perkins 192 ! R V Perrott 492 Rv Perry 264 R V Peterman 568 Rv Phillips 92-191 R V Phipoe 289 Rv Pickup 332 R V Phmimer 217 R V Plunkett 206 R V PoUman 140-408 Rv Poole 302 RvPope 448 R V Potter 447 RvPoiilton 246 R V Powell 622 Rv Preston 368 Rv Price 81 R V Prhice 292 R V Proud 386 R vPurdy 218 R V Quatre Pattes (51 2 R V Quinii 315 R V Radley 313 R vRagg 339 R V Ramsay 542 R V Rand 161 R V Rankin 209 R V Rattislaw 668 R V Rea 164 R V Reardon 364 R V Redman 445 "- 3 PAGE Rv Peeve 472 R V Reeves 245 R v Reifl'cnstein 76 R V Reno and Anderson ...32-537 RvReopelle 367 R V Rice 198 Rv Richards 80 R V Ricliardson 402 Rv Richmond 349 Rv Riley 304 R V Ritchie 589 R V Ritson bu8 Rv Roberts 400 R V Robertson 303 R ' Robins 302 R V Robinson 54, 237 RvRoblin 15, 22 R vRobson 308 R V Roderick 84 R V Roebuck 335, 494 R V Rogers 317 RvRose 233 R V Ross 397 R vRow 18, 21 R V Rowlands 154 RvRoy 371 Rv Royal 81 RvRubidge 219 R V Rushworth 366 R V Russell 237 RvRyalls 399, 494 RvRyan 272, 421 Rv Ryland 256 R v Rymes ... 503 R vSadbiiry 190 RvSage 587 R V Sainsbury 80 R vSalmon 375 Rv Salter 88 R V Sanders 235 R V Sanderson 208 R V Sansome . , 475 R V Saunders 265 R V Scaife 583 R vSchlesinger 393 Rv Schmidt 353 Rv School 414 R vSchram 13 RvScofield 87 R v Scott 190, 462 R vSearle 93 R V Sobery 123 R V Seeker 22 XXVI TABLE OF CASES CITED. PAGE RvSeddons 451 RvSellis 245 R vSelsby 154 RvSenecal 347 Rv Seward 402 RvSharpe 123, 310 RvShaw 94 400 R vShea 507 R V Sheen 4G2 RvShellard 405 R V Shepherd 154 R V Sheriff Niagara 545 R V Sherlock 234 R V Sherman 12, 14, 77, 113 Rv Sherwood 339 RvShickle 291 R V Shuttleworth 239 R V Sininionsto 1G2 R V Simpson 319 R vSinnott 582 RvSkeen 289 RvSkeefc 98 RvShivin 99, 405 Rv Smith 246, 48(5 R V Sm ith , Charlotte 255 R V Smith, J essie 103 R V Smyth ]9() Rv Snelling 307 RvSuowloy 331 R V Solomons 110 R V South Holland 502 R V Southward 129 R V Sparling 524 Rv Sparrow 275, 580 R V S])elman 235 R V Spence 210, 234 R V Spencer 382 Rv Spriggs 282 R V S(iuires 90 Rv Stafford 137 RvStainer 152 R V Stallion 375 R V Stanbury 345 RvStanger 582 R V Steel 307 R V Steels 341 R V Stephens 232 R V Stevens 522 R V Stevenson 478 Rv Stewart 438 R V Stimpson 514 R V St Lonia 310 R V Strachan 137 PAGE R V Stratton 408 R V Streek 020 Rv Strip 471 R V Stubbs 460 R V Sullens 351 R V Sullivan 497 R V Siinnners 440 R V Sutton 90 R V Swan 78 R V Swindall 253 R vSwitzer. 502 R V Sylvester 412, 440 R vTaffs 323 R v Tailor's Com 403 R V Taylor 84 R vTholey 327 R V Thomas 324 R V Thompson .... 319,409, 588 H vThorley 331 R V Thorn 306 R V Tliurborn 294 RvTierney 112 R V Tinning 412 RvTisdale 102, 143 R V Tite 324 R V Tod 515 R V Tomlinson 383 R V Tongue 324 R V Toronto St Ry Co 80 R V Townley 291 R V Townsend 390, 557 R V Trebilcock 293 R vTrilloe 245 R v Tubbee 23, 24, 47 RvTufford 472 R vTuke 367 R V Turner 132. 408, 450 R V Tweedy 305, 495 R vTyree 323 R V Tyson 390 R V Vanaerman 68 R V Varley 110 R V Vaughan 146 R V Vendette 538 R V Vincent 401 R V Vonhoff 598 R V Wadsworth 144 Rv Walker 386 Rv Wallace 487 Rv Walla 287 Rv Walsh 125,351 R V Walton 318 R V ^'"arburton 402 TABLE OF CASES CITED. XXVll PAGE R vWard 245, 275 R V Wardroper , 356 j Rv Watson 342 Rv Webster 85, 400 Rv Welsh HO Rv Welton 478 R vWest 295 R V Western 388 R V Wheeler 589 R V Whelan 232, 411 R V Wheten 527 Rv White 134 R V Whitehead IIG, 461 , 545 R V Whittier 234 R V Wigg 82 R V Wightman 196, 506 R V Wilcock 306 Rv Wiley 355 R V Willett 583 R V Williams 77, 104,265, 370 R V Williamson 583 Rv Willis 447 R V Wilshaw 476 R V Wilson 193, 264 R V Winsor 489 R V Wolstenholme 325 Rv Woodcock 137 RvWroxton 165 R v Yarrington 575 R V Yeardon 278 R v Yomig 532 Ramsay, Re 636 Ramsay v Reg 622 Rawney q t v Jones 437 Rawnsley v Hutchinson 549 Recorder, Re and Judge, D C Toronto 149 Rector, St John v Crawford... 630 Reid v Inglis 21 Reid v McWhinnie 521 Richardson v Can. W. F. Ins. Co 592 Rickaby , ex parte 121 Rider v Wood 97 Ridley v Lamb 218 Ritchie ex parte 22 Roberts v Orchard ... 257 Roberts V Patillo 607 Rochon V Leduc 463 Rockwell V Murray 260 Rogers v Spalding 175 Rogers v Van Valkenburgh... 258 Rokeby v Laugton 393 PAOE Rolle and White 232 Rose V Cuyler 480 Ross V Corporation Ports- mouth 229 Ross q t V Meyers 159 Ross, Re 538 Rousse, ex parte 16-18 Rowe V Titus 230 Runciuian, Re v Armstrong. . . 557 Ryalls V Leader 174 Ryalls V Reg 399, 494 Sandiman v Breach 326 Saunders v Baldy 446 Scott V Dickson 546 Scott V Henderson 156 Sewell V Olive 486 Shaver v Linton 180 Shea V Choat 18 Slack ex parte 526 Slater, Re 198 Small V G. T. R. Co 200 Small V McKenzie 174 Smith V Armstrong 181 Smith V Barnett 432 Smith ex parte 145 Smith V Hall 20 Smith V McGowan 12 Smith, Re 550 Smith, Re and Council Eu- phemia 220 Smith, Re Andrew 117 Smith, Re John 113. 114 Smith, Re Trueman B 35, 37 Smyth V McDonald 18 S.)lr. Genl. v Carter 128 Solr. Genl. v Darlijig 128 Somers v House 189 Somerville v Hawkins 180 Spalding v Rogers 207 Speaker of the Legislative Assembly of Victoria v Glass 10 Spelmau ex parte 539 Spelman v Reg 235 Spieres v Parker 506 Spill V Maule 182 Spires v Barrick 277 StacevGrittith 186 Stacey v Whitehurst 101 Stanley v Jones 156 Stanton v Andrews 169 Steel V Smith 506 Stephens v Meyers 271 XXVlll TABLE OF CASES CITED. PA(iE Stevenson ex parte 130 Stewart and Blackburn 435 Stewart v Rowlands 188 Stinson v Browning ......... 217 St. Mary Newington v Ja- cobs 212 Stockdale v Hansard 177 Stone V Marsh 75 Sturt V Bragg 189 Switzer, Re 517 Taylor Re v Davy 569 Taylor V Guiding 302 Tayloi V Humijhries 140 Taylor v Marshall 133 Tei'rien ex jjarte 572 The Haidee 514 The Scotia 514 The Toronto 276 Thomas v i. epin 542 Thomas v Piatt 383 Thompson and Dumford .... 483 Thompson ex parte 141 Thompson, Re 516 Thomson v Leslie 484 Timson, Re 559 Torrance v Smith 22 Totten v Watson 436 Tracey, Re 11 Trigerson v Board of Police, Cobourg 215 Trowley ex parte 527 Tunnicliffe v Tedd 615 Turnbull v Bird 184 Turner v Ringwood H Board 224 Uniacke v Dickson 1-2, 15 Unwin and Clark 430 Vaillancoiirt ex parte 565 Vallieres ex parte 664 Van Allen v G T R Co 224 Vaughau ex part j 561 Vaughton and Bradshaw. . . . 615 Victoria P R Co v Simmons . . 554 Vincent v Spragne 75 PAGE Wadsworth v Bonlton 241 VVakley v Cooke 580 Walker v Brewster 198 Wallace, Re 148 Walsby v Anley 154 Walsh V Nattrass 73 Warner, Re 500 Warner v Tyson 22, 110 Wason ex parte 178 Wason V Walter 171 Watson V City Toronto Gas and Water Co 197 Watts, Re 563 Wellock V Constantine 75 Wheeler Doe d v Mc Williams 102 Wheeler v Reg 589 Whelan v McLachlan 229 Whelan v Reg 232 White v Gardner 350 Whiteley v Chappell 372 Whitfield V S E Ry Co 169 Whitehead v Reg 116 Wildes V Russell 148-152 Williams v Bayley 142 Williams v Robinson 73 Willoughby v Egerton 621 Wilson V Corporation St Catharines 154 Wilson V Graybiel 134 Wilson V Jones 10 Wilson, Re 547 Wilt V Lai 400 Winning v Fraser 489 Winsor v Reg 455 Winterbottom v Ld. Derby... 210 Wood and Brown 445 Wood v Downes 156 Wood ex parte 519 Woodhouse ex parte 136 Wragg v Jarvis 239 Wray vToke 137 Yearke v Bingleman 554 Young V Sloan 309 Young V Woodcock 679 THE CRIMINAL LAW OF CANADA. INTRODUCTORY CHAPTER. THE ENGLISH CRIMINAL LAWS PREVAILING IN THE DOMINION. Colonies may be acquired by occupancy, conquest and cession. When a colony is acquired in either of these modes, it becomes material to consider what laws apply and are in force therein. On the acquisition of a colony by occupancy, all English laws applicable and necessary to its state and condition are immediately in force, such as the general rules of inheritance and of protection I'rom personal wrongs ; but other provisions applica])le and peculiar to a people in a more advanced state of civilization and artiiicial reline- ment are neither necessary nor convenient in a new and undeveloped country, and therefore are not in force, (a) In conquered colonies, the laws existing at the time of the conquest, except such as are contrary to the laws of (l' CANADA. IJritiKh North Am<'rio!i Act, 1867, we may bo permitted to tnnit ()[' i\u\ powevH which this Actconlers on th(! Par- liament ol' CJiuiada to im))rison lor contempt, this h(!inir, in Tact, a consich'ratioii of th(^ lilny-lish i)arliamentary law prevailing' in the colonies, lliujcr s. J(S, tak<'n in con- nection with the, 31 Vic. c. 2'}, th(; Senate, House ol" (com- mons, and th(» m<*mhers thi^reoi' respectively, now hold, exercise and enjoy the like ])rivile<4<'s, immunities and pow(;rs enjoyed l)y th<' Commons House ol' Parliament ol' th(; United Kini»-dom ol" (ireiit IJritain and Ireland at the time of the passim^- ol" the Act, inclndiiii^' the power oriji)])risoniiiiiror contempt fa; : and incid<'nt to this power there is vested in the Dominion Parliament Wnt riuht ol" judiJiinL!" lor ilscll" what constitutes a contempt, and ol' orderiii'j;- ilic commitment to prison ol' persons adjudiied by the llous(> to be «4'uilty of a contempt and ))reach ol" priviien-e, by a «.;'eneral warrant, statin^r simply that a contemi)t has be<'n committed, without settin;,' i'orth the Hp(H;ilic ^'rounds ol' the commitment (b) Tlie j)()\ver <»!' iniprisoninu' I'o)- contempt iidierent in the lIous(^ ol' ( 'ommons in ICnu'land, by virtue; ol'thi; law and custom ol' Parliament, can only be conferred on co- lonial Assemblies by express irrant. (r) As, therelbre, no such n'rant has been made to the Local Lei>'islatures ol' theseveral I'roNincesof the Dominion, they do not j)ossess the; |)Owers enjoy<'d in this respcict by the Senab; and House ol' Commons. Th(!re is no |>o\v<'i' to imjn-ison I'or contc^mpt annexed as a necessary incident essential to the existence of a Colonial House ol' Assembly, })y the jtrrant of a Constitu- tion and independent Iweislutive j)owers, nor is tliis (ii) Hi-r Thr Sitvnkrr of thr Lcf/iHlntii'c AHitniihlif of Victoria, v. O/unn, \j. ]i. .'} I*. «'. A|.|.. ".(K*. EN(iLISH LAWS IN FORCK. 11 powor con{(!rrcd as a Icii'al incicbuil or attribulf; by law anruixcd to iho •^•raiii ol' l,h«; As.s(Mribly, nor docs it, exist ))y analogy to the law and custom oi" Parliiirnciit as part ol" th(! coinnif)!! law iiiheriuit in Ihc two Houses of i'ar- liaincnt in Hut IJuited Kiniidoiii, oi- loa, ('our( of Justice, vvliicl^' is a (Jourt ol' Jiccord, a Colonial House ol' Assem- bly lia,vin<^' no Judicial functions, (a) Nor does it make any dilU'r(!nce wln;therthe cont(!)ni>t is committed in the laci; ol' tin; House, while sitting-, or out of it, by a inembiU' or l)y a stranger In Doi/lcv. Fa/roner, a member while addi-i'ssin^' the House was call(;d to order by the ^Speaker; he them used contem|)tu- ous lan^ua*2,-o to the latter \\'hil<' in tlie execution of his oilice, and aflei" })ein^' Ibrmally adjudoc-d ouilty ofcon- temj)t by the J louse, he was <'ommittedby t,he SjM'aker's warrant: Hc/tl that tiie commitmciiit was illey-al. Ihit a ])'»wer U) ini })'/•/. son for contempt must \h\ distin<^uish(;d Irom the ])awer to pres(^rve ordei- and remov(! obstruc- tions in the House. The latter power is a nec(;ssary in- cident to thuiity of disonlerly conduct in the Jlouse whilu sittiny, and it is necessary for the ])reserva- tion of order that h(^ should be removed, he may be ex- cluded for a, time, or even exjxdied. The lii,w would sanction the nso of that det-rrr ol' fore*; whicdi mi^ht l)o n»!cessary to remove the person oll'endini^- from the Jlouse, and to keep hi)n ('xcduded. The same rule \v(»uld api)ly ti. forfiori to obstructions caused })y any person not {11} /t(,,,lr V. Fii/ronrr, I,. I!. 1 |'. ( '. .\|.i,. :;'2H ; h'iiilii/ v. <:ui:v„i. 1 .M.).i.-..'« I . ( . .;iiHfs, (;;t : tunlini v. Ilamiihni, II Moc.h'h I'. ('. c;i'ihi!M, ;tl7 ; ///// v. Wil- ifoii, .» I\cir, 1 (7.f/7/., ..vniiijiiit., Ill Tnirr,/, S. 1^. ( '. A. 470 ; M Vic. c. C3. ENGLISH LAWS IV FORCE. 13 here, {a) The comity oi' nations, however, prevails to some extent between Colonial Parliaments and the tribu- nals of the mother country, and when the law of a colony conllicts with that of England in respect of acts done within the jurisdiction of the colony, if an action does not lie for a wrongful act in the colony, none can be maintained in England, [b) It seems there are some subjects pertaining to the in- terests of the Empir*^ at large, as well as ar own Domin- ion, on which a right of legislation is reserved to the Im- perial Parliament. Among these the foreign relations of the colonies may certainly be included. In giving judgment in Reg. v. Srhram, (r) after stating that by the Union Act, Imp. Stat. 3 & 4 Vic. c. 3o, powder was given to the Local Legislatures to pass laws for the peace, welfare, and good government of the Province of Canada, such laws not being repug-nant to that Act, or to such parts of 31 Geo. 3, c. 31, as w^ere not repealed, or to any Act of the Imperial Parliament, made, or (o be made, and not thereby rt^pealed, which did or should by express enactment, or by necessary intendment, extend to the Provinces of Upper or Lower Caiuida, or eith(^r of them, Rirliards, C. J., said : " The A'ery words ol the statute 3 (S:; 4 Vic. c. 35. seem to imply that the power to legislate on some matters was and is reserved to the Im- perial Parliament, though this J*rovince may be afl'ected by such legislation. As long as it is admitted that the Home Government, by whom the supreme power of the emjnre is exercised, is thejn-oper channel through which all our relations and intercourse with tbreign govern- ments are to be carried on, the power to pass laws to bind the whole nation, so far as regards those relations, (a) Doe dnn Andiraon v. Todd, 2 U. C. Q. B. 83-4 : per Robinson, V. J. (I>) J>/iiUipH V. Kinr. L. \l. 4 (). 15. '22\ Ir) 14 U. C. V. i\ 322. 14 CRIMINAL LAW OF CANADA. mast rest with the Imperial Parliament. Indepen- dently of the doctrine that our Local Leo-islature can only exercise such powers as are specially conferred upon it under the statutes passed by the Imperial Par- liament, there are other points of view in which the question may be considered. Thoug'h possessing a do- mestic Legislature, we form part of a vast empire having other colonies exercising similar legislative powers to our own. If any one colony by passing laws, or refusing to pass laws, produced a state of things which created dilRculty with a foreign state, the whole nation might be involved in a calamitous war from the imprudence or recklessness of an unimportant colony." The cj^uestion, in this case w^as whether the Imp. Stat. 59 G-eo. 3, c. 69 could be held to apply here, and the learned Judge went on to say : " Considered in the above A'iew, it appears to me that the statute which we are discussing relates to the conduct of citizens of the empire towards foreign states and peoples, and is on a subject which must be disposed of and legislated upon by the Imperial Parlia- ment, as representing the supreme legislative power of the nation, and as to which it is necessary that all the subjects of the Crown should alike be bound.'" (a) In this case the defendants were convicted of a misdemeanor ur.dcr the above statute, 50 Geo. 3, c. 69, for procuring and endeavouring to procure enlistments in this country for the army of the United States, and upon motion for a new trial it was held that although at the time of the passing of the statute we had a Local Parliament and separate powers of legislation, yet it was in force in this Province, and the conviction was sustained and the statute held to apply here, (b) If, after the grant of a Constitution and independent (a) 14 U. C. C. P. 322. (6) lb 318 ; see also Riy. v. Sherman, 17 U. C C. P, Ififi. ENGLISH LAWS IN FORCE. 15 powers of legislation, an English statute is introduced into a colony, though alterwards repealed in ]ingland, it will still continue to apply in the colony, (a) The reason is thai none of the jn-ovisions of the repealing statute, which are substituted for the repealed statute, extend to the colony (b) : Imperial statutes not extending thereto, unless expressly named, or the statute is of such univer- sal application as manifestly to apply therein, (j-) In the early settlement of a colony, when the Local Legislature has been just called into existence, and has its attention engrossed ])y the immediate wants of the members of the infant community in their new situation, the courts of judicature would naturally look for guid- ance, in decidhig upon the claims of litjf^.ants, to the general laws of the mother country, and would exercise greater latitude in the adoption of them than they would be entitled to do as their Local Legislature, in the grad- ual development of its powers, assumed its proper posi- tion. Every year should render the courts more cau- tious in the adoption of laws that had never been previ- ously introduced into the colony (d) : and in accordance with these principles it was held in this case that in- creasing lapse of time since the settlement of the colony should render courts more cautious in recognizing En- glish statutes which have not been previously intro- duced, (e) It is suggested as even worthy of grave ct)n- sideration whether, after the existence of an independ- ent legislature for nearly a century, the adoption of English statutes is not rather the province of the legisla- ture than of the courts. (/) («) Dunne v. O'licill/i, 11 U. C. C. P. 404 ; /?«/. v. RubUn; 21 U. C. (,). B. .S52 ; Kcllii V. ./o/H'.t, 2 Allen, 47;}. (/() Ktrr V. Hitrni<, 4 Alli'ii, (J09 ; following Janwn v. McLeun, '.i Allen, 1(34. (c) See Imi). Stat. 28 & 2l» Vic. t. (i;<. ((/) Unittcke v. Dickson, 1 James, •J'Jl ; per Ualibarton, V. J. (< ) ///. U87. - - — (/) lb. 2yi, per Haliburton, C. J. IG CRIMINAL LAW OF CANADA, There is no precise or defined rule, nor any direct de- cision as to what Imperial statutes extend to the colo- nies. This must of necessity be left open for decision in each particular colony and case by the courts established in those colonies, subject to an appeal to Her Majesty in Privy Council, (a) The courts are not, in deciding*, to pro- ceed upon any arbitrary exercise of their will, but upon the best views which they can take of arguments which cannot in their nature lead to any clear and incontestible conclusions, and they are to so decide, subject to the re- vision and control of the Queen in Council, and subject also to any express provision which the Legislature of themother countryorthe colony may think lit to make, {b) The ultimate and final forum to decide as to what particular laws are in force is the Privy Council, (c) When the law of England is introduced into a colony by some positive enactment of the mother country, or, as may be done in the case of a conquered country, im- posed by the mere act or regulation of the Queen in the exercise of her royal prerogative, the extent of its intro- duction must depend upon the terms of the Act or regu- lation introducing it {d): but the 32 Geo. 3, c. 1, introduc- ing the civil law of England into the Province of On- tario does not place its introduction on a footing materi- ally difi'erent, as regards extent of introduction, from what was the effect of the proclamation of the 7th Uc- tober, 17G3, in those territories to which it extended, or from the footing on which the laws of Englaud stand in those colonies in which they are merely assumed to be in force on the principles of the common law, by (fl) Uniarkc v. Dickson, 1 .Tanu's, 2(t0, ])er Hill, .T. ; Ex parte Roitsne, S. L. C. A. S22 : per Seirdl, C J. ; l)illiii;/liain v. Wilson, »i U. C. C^. B., U. S. 80, per JSherwooil, J. (6) Docdem Anderson, v. Todd, 2 l^ ( '. C^ B. 87-8, per Robinson, C J. (r) II). Uniacke v. Dirkson, 1 Jaiiii's, 287. (tO JJoe dem Anderson v. I'odd, 2 \], C, y. B. 83 ; per Robinson, C. J, ENGLISH LAWS IN FORCE. 17 reason of such colonies having been first inhabited and planted by British subjects, (-d) It would seem, therefore, we may reasonably assume the 14 Geo. 3, c. 83, and the 40 Geo. 3, c. 1, do not introduce the English criminal law to any other or greater extent than it was intro- duced, by the proclamation of 1763, into the Province of Quebec or than the English civil law was introduced by the 32 Geo. 3, c. 1, into the Province of Ontario ; and that as to extent of introduction there is no material difl'erence between colonies in which it is held to be in force on common law principles and those in which it is introduced by an express statute or pro- clamation. In each case only such laws as are of general and universal application, and adapted to the circum- stances of the colony, can beheld to be in force, (b) We may therefore conclude that the several Provinces of the Dominion stand on pretty much the same footing in re- gard to the extent of the introduction of the English criminal laws. There seems to be a distinction between the common and the statute law extending to the colonies. As a code colonists have been disposed to adopt the whole of the former, with the exception of such parts only as are obviously inconsistent with their new [situation ; whilst far from being inclined to adopt the whole body of the statute law, they hold that such parts only are in force as are obviously applicable to and necessary for them. As respects the common law, the exclusion forms the excep- tion, whereas as to the statute law the reception forms the exception, (c) It must, therefore, be quite clear that an lllnglish statute is applicable and necessary in a colony before it is held to be in force, {d) In this case it was ac- (a) Ih. H() ; ])er Robinson, C. J. (6) Ih. 80 ; per Robinson, Vi. .1. (r) Uniurke \'. Dickson,! ^»,uw^^,2%9,X)ev HnUiburton, C. J. (. 290. (r) ^S7(ra V. Choat, 2 U. C. Q. B. 211 ; Wilson v. Jones, 1 Allen, G.58 ; Kerr v. Burns, 4 Allen, 005 ; Smvth v. McDonald, 1 Oldright, 274 ; Lcith v. WUlis, 5 U. C. Q. B. (). S. 102-;i ; per Robinson, ('. J. ; Dilliniihum v. Wilson, 6 U. C. Q, B. O. S. %v>; Uniacke v. Dickson, 1 James, 287 ; Doe dem. Anderson v. Todd, 2 U. C. Q. B. 82, (rf) Re;/. V. Bow, 14 U. C. C. P. .W ; Ex parte Rousse, S. L. C. A. 321 ; Z>oc dem. Anderson V Todd, supra, Kainnagh v. Phelon, 1 Kerr, 472-6; Doe dem. Hanningtonv. McFadden, Berton,15'3. ENGLISH LAWS IN FORCE. 19 nies, and in some cases, even where an act is only im- pliedly made an oflence in England. There are several cases in which summary convictions have been upheld in Ontario upon Enulish statutes, which are not other- wise in force than as they were considered to have been introduced under our general adoption of the criminal law, althouo-h the act done was not otherwise made an offence in England than by its being positively pro- hibited by statute and a penalty imposed upon convic- tion before the magistrates, with imprisonment in case of the penalty not being paid, (a) And the learned Chief Justice further observes, " I by no means mean to say that all such Acts have been held to form part of our criminal law, for there are cases in which reason has pointed out obvious grounds for exception, as in the in- stance of particular regulations made for the method of carrying on certain manufactures. But where acts have been prohibited under a penalty, from their tendency to lead to vice and immorality, as in the instance of Sab- bath breaking and gambling, the English statutes re- specting them, w^hich w^ere in force in 1792, have been treated as being in force here. And our statute, 11 Geo. 4, c. 1, was passed to obviate the practical inconvenience we were under in eni'orcing such Acts, by reason of the penalty, or a portion of it, being in many cases appropri- ated to the poor of the parish, or in some other manner not exactly applicable to the existing state of things here. (6) It was held in this case that, notwithstanding the 19 Vic. c. 49, passed in this Province, the 12 Geo. 2, c. 28, as to lotteries, is in force here ; first, because it comes within our adoption of the criminal law of England as it stood in 1792, and next, because this statute and other (a) Crnnyn v. Widdcr, 16 U. C. Q.B. 361, per Hobinton, C. J. (6) Crnnyn v. Widder, 16 U. C. Q. B. 361, per Robinson, C. J. 20 CRIMINAL LAW OF CANADA. statutes of the same nature, and resting on the same foot- ing, have been treated in our courts as being in force, (a) By the 14 Geo. 3, c. 83, the British ParHament clearly- designed to give to Canada the criminal law of England as to those objects and in those matters for which no special provision had before been made by Parliament, but it had no intended reference to, nor did it introduce. Acts of Parliament which, from their very terms, already were as much in force in the colonies as in England, and which consequently required no introduction at that period, (b) This statute introduced only that portion of the criminal law of England which was of universal application, and not such parts as were merely munici- pal and of local importance (c) : but It was introduced in toto in law as well as in practice, (d) The 40 Greo. 3, c. 1, did not apply to or introduce Acts which were already in force in the Province of Ontario, (e) As somewhat illustrating the principles already ex- plained, we now proceed to refer to cases in which par- ticular criminal statutes have been held to be in force, giving, as far as possible, the reason upon which the decision in each case proceeded . The statute 32 Henry 8, c. 9, which prohibits the buy- ing of disputed titles, is in force in Ontario, as it consti- tutes part of the criminal law of England adopted by the 40 G-eo. 3, c. 1 (/). In the case of Shea v. Choat (g), it was (a) lb . .356-361 ; see also as to lotteries and the 12 Geo. 2, c. 28 ; Corby v. Mc. Daniel, 16 U. C. Q. B. 378; Marshall v. Piatt, 8 U. C. C. P. 189 : Lloyd v. Clark, 11 U. C. C. P. 250, per Draper, C. J. ; Mewbiirn v. Street, 21 U. C. Q. B. 306-498. (6) Bank of Upper Canada v. Bethune, 4 U. C. Q. B. 0. S. 171 per Robinson, C. J. ; see also Bank of Montreal v. Bethune, 4 U. C. Q. B. 0. S. 193. (c) Ex parte Mousse, S. L. C A. 321. (d) Notman v. Re:i. 13 L. C. J. 257 per Badgley. (e) Bank of Upper Canada v. Bethune, 4 U. C. Q. B. 0. S. 171-2, per Robin- ton, C. J. (/) Beasley q. t. v. Cahill, 2 U, 0. Q. B. 320 ; see also Baldwin q. t. v. Hen- derson, 3 U. C. Q. B. 287 ; Benns, q. t. v. Eddie, 2 U. C. Q. B. 2m; Aubrey, q, t. V. Smith, 7 U. C. Q. B. 213 ; May, q. t. v. Dettrick, 5 U. C. Q. B. O. S. 77 ; RodS, q. t. V. Meyers, 9 U. C. Q. B. 284 ; McKenzie v. Miller, 6 U. C. Q. B. 0. S. 459 : Smith v. Hall, 25 U". C. Q. B. 554. (y) 2 U. C. Q. B. 211. ENGLISH LAWS IN FORCE. 21 held that the statute 5 Eliz., c. 4, is not in force in On- tario, but the statute 20 Geo. 2, c. 19, is, though both statutes are of a date long anterior to the introduction of the English law in this Province. In giving judgment in this case the learned Chief Justice Robinson says, in reference to the 5 Eliz. c. 4, that " it cannot possibly ad- mit of doubt that its provisions are inapplicable to any state of things that ever existed here. A clause here and there might be carried into effect in this colony, or any- where, from the general nature of their provisions, but that is not sufficient to make such a statute part of our law, when the main object and tenor of it is wholly for- eign to the nature of our institutions, and is therefore in- capable of being carried substantially and as a whole into execution, (a) The 28 G-eo. 3, c. 49, s. 1, as to perjury, is local in its character, and thereiore is not in force here, {b) In Reg. V. Mercer, {c) it was held that the 5 & (j Edw. 6, c. 16, against buying and selling offices, is in force in this country, under the 40 Greo. 3, c. 1, as part oi the criminal law of England. The 49 Geo. 3, c. 12G, apphes here and expressly extends the 5 & 6 Edw. 6, c. 16, to the colonies, or at least such of its provisions as are in their nature applicable, {d) Semble, the 3 Edw. 1, c. 26, is in force hero, (c) The 1 W. & M. c. 18, s. 18, is in force here, notwith- standing the Con. Stats. Can. c. 92, s. 18, and a person offending against the former statute may be punished. ( f) The 32 Geo. 3, c. 1, introducing the law of England as to property and civil rights into the Province of Ontario, {a) lb. 221. (6) Jte(/. V. Bow, 14 U. C. C. P. 307. (r) 17 U. C. Q. B. 602. Q ^B ^480 '*''' ^'^" ^''''' ''■ ^'""''^' ^^ ^' ^- ^- ^- ^^^' ■^'"'' ^- ^«^^ocA-, 4 U. C. ie) Agkin v. London District Council, 1 U. C. O. B 292 - (/) Beid V. Inglis. 12 U. C. C. P. 195 ; per Draper, C. J. 22 C'lUMINAL LAW OF CANADA. included the law generally which related to marriage, that is, the common and statute law of England applica- ble to the state of things existing in this colony at the time the Act was passed. The stat. 26 Geo, 2, c. 33, being in force in England when our stat. 32 Geo. 3, c. 1, became law, was adopted, as well as other statutes, so far as it consisted with our civil institutions, being part of the law of England at that time " relating to civil rights." It would seem, however, that the 11th clause of 26 Geo. 2, c. 33, is not in force in this country, (a) The 8 Henry 6, c. J), 6 Henry 8, c. 9, and 8 Henry 4, c. 9, and 21 James 1, c. 15, as to forcible entry, are in force here (b) : so the 8 & 9 Wm. 3, c. 27 (c) : so the 33 Henry 8, c. 20 {d) : so the Mutiny Act, 25 Vic. c. 5, s. 72 (e) : so by the 14 Geo. 3, c. 83, the 9 Geo. 1, c. 19, and 6 Geo. 2, c. 35, which impose certain penalties on persons selling foreign lottery tickets, have been made to form part of the law of Quebec. (/) (a) Ety. V. Robliti, 21 U. f. Q. B. 3.52-.5 ; IloJghis v. MrNril, <) Grant, 30.5 ; 9 U. C. L. J. 12.'); li(v, V. Sv/ifr, 14 U. C. Q. E. 004 ; but see Itiv. v. JMI, 1.5 U. . U. C.Q. B. 287. (b) Bou/ton V. Fitzgerald, 1 U. U. Q. B. ;543 ; Rex. v. McOreary, 5 U. C. Cj. B. O. S. 020. (c) Wramw. Jarvis, 4 U. C. Q. B. O. S. 317. (d) Due dcm. Gillespie v. Wixoii, 5 U. C. C^. B. 132. (e) Re;i. v. Daweit, 22 U. C. Q. B. 333. (/) Ex parte Rousse, S. L. C. A. 321. See further on the general subject Henketh v. Ward, 17 U. C. 0. P. 607; Mercer V. Hewsion, '.t U. V,. (!. P. 349; Hearthi v. Henrim, U. C. Q. B. (). S. 4.52; Tarranve v. Smith, 3 U. C. C. P. 411; Jamea v. McLean, 3 Allen, 104; Marks y. Oilmour, 3 Allen, 170-217; ex parte Bitxtin, 2 Allen, 211; Finli v. Doiile Ih'aper, 340; Purdii ^\, t. v. Ri/der Tai/lor, 230; Reii. v. Street, 1 Kerr, 373; doe dem Alien, v. Miirrnii, 2 Kerr, 350; Milner v. Gilbert, 3 Kerr, 017 ; Morrison v. McAlpinc, 2 Kerr, 30 ; ex parte Ritchie, 2 Kerr, 75 ; Re(i. v. McCormick. 18 U. C. Q. B. 131; Priwilc v. Allan, 18 U. C. Q. B. 578 ; Warncrw Tjison, 2 L. C.J. 105; Rei). v. Becerider Richardg, .7. Rai. v. Bcnnet H. YouHf). 9 L. (!. .J , 44 per Bad()h>i, .T. (b) Reg. v. Tnhlm, 1 U". C. P. R., 102-3, per Macaulay, C. J. 5^4 CRIMINAL LAW OF CANADA. power of the nation, (a) This necessity was practically acknowledged at an early dace by the making of an ex- tradition treaty betwf^Cn the two governments on the 19th of November, 1794. This treaty was called "Jay's treaty," and it related only to murder and felony. It has long since been superseded by the Ashburton treaty, and the statutes passed to give cflect thereto, though it continued in force till the outbreak of the American war in 1812. It ceased as soon as war was declared, and from the conclusion of the treaty of peace between G-reat Britain and the United States until the passing of the 3 Wm. 4, c. 6, in 1833, the extradition of criminals be- tween the two countries rested entirely upon state au- thority and the general law of nations, (b) The first case which was decided in this country on the subject of extradition, was Re Fisher, (c) decided in 1827. Jay's treaty was not then in force in Quebec, and the decision proceeded on the general principles of in- ternational law. The Court held that the executive government had power to deliver up to a foreign state a fugitive from justice charged with having committed any crime within its jurisdiction. In another case, in 1833, Lord Aylmer, then Governor of Canada, refused to deliver up four prisoners for extradition, saying the Executive could not, in the absence of treaty or legisla- tion on the subject, dispense with the Habeas Corpus Act. But, in the same year, Ontario remedied this defect by passing the 3 Wm. 4, c. 6, Con. Stat., U. C, c. 96. In relation to foreign powers with whom no treaty or conventional arrangement exists, this latter statute is still in force, and limits any authority ordiscretion which might otherwise have existed on the principles of the common (fi) 7?rt/. V. liriinrt H. Youiki !» Ti. 0. J.. 44 pur Hudiilcu, J. (b) ^w.Jn the above case. (c) See Ex parte Andmon, :>> ].. 'V. Iteps. X. S. (;'22. 7 .Tur. N. S. 122. EXTRADITION. 27 judicial prerogatives, and the above statute w^as passed to prevent future proceedings of a like kind by the Imperial autljorities. The 5th section of the Imp. statute 6 & 7 Vic, c. 76, gavy the Parliament of this country supreme authority to enact laws, and efliectually carry out the provisions of the Treaty within the limits of our territory, (a) But Colonial legislative action was allowed only for the pur- pose of carrying mto effect the objects of the Imperial Act within the Colonial jurisdiction, according to the local circumstances and position of each Colony and Dependency. , This delegated power of local legislation was therefore absokite in its nature, but restricted in its purport and extent by the objects of the Imperial Act. These objects once secured by the local law, the procedure, or, in other words, the machinery for obtaining its required purposes, was left to the discretion of the Local Legislature, to be provided for according to the circumstances and position of each Colony ; {b) and the jjrocediire under the Treaty may be changed by our L(>gislature.((') In pursuance of the powers thus conferred, provision w^as afterwards made by our Legislature for giving elfect to the Treaty by the enactment of the 12 Vic. c. IJ). (d) This statute, alter reciting certain inconveniences which had arisen from the lilnglish Act, in effect enacted sections 2, 3, and 4 of the latter, with this additiov, that section 2 of our Act sanctioned a requisition from the United States, or " any of such States." No further change was made until the passing of the 23 Vic, c 41, in 1800. This Statute repealed the Con. [a) Rfij. V. Iknnct H. Young, 9 L. C. J. 38, per Smith, J. {h) III. 45, i)er liadnhv, J. (r) /,•;. ((/) Con. Stat. Can., c. m. 28 CRIMINAL LAW OF CANADA. Stats. U. C, c. 96; but the latter is still to some extent in force, as before explained. In 18G1, the 24 Vic, c. 6, was passed. This Act did not require the Queen's proclama- tion, or an orderof Her Majesty in Privy Council, to give it effect, but had the force of lavv^ here without either, (a) The Statute was passed in consequence of the legal com- plications arising in Anderson's case, {b) In order to avoid, if possible, the blunders of ignorant and incompetent magistrates, the Act deprived ordinary Justices of the Peace of the power to deal with extradition offences, and vested it only in superior officers of the Courts, such as Judges of the Superior or County Courts, Recorders' Police or Stipendiary Magistrates. It repealed the 1st, 2nd, and 3rd sections of the Con. Stat. Can., c. 89, and substituted other provisions in lieu thereof These sub- stituted sections applied only to the technical procedure of the local law, by giving practical, improved, and addi- tional facilities for carrying out the law, and in this respect were simply verbal amendments in eodem sensu of the previously existing enactments, (c) The Act has omitted the words " any such States," which in the prior Acts were superfluous, and their omission in this Act renders it more perfectly conformable with the terms of the Treaty and of the Imperial Act, and with the dele- gated power of legislation by the Colonial Legislature : (d) for by the terms of the Treaty and the Imperial Act "jurisdiction" and "territories" are synonymous, and the addition of the words " or of any such States " would be useless, as being, in fact, included in the general aggregate expression " United States of America." (e) These words are not in the Imperial Act, and it seems (a) Rfu. V. Bcnnet H. Youmi, 'J L. C. J. 29. (b) 20 U. C. C^ B. 124. (c) lliy. V. Biumt 11. Youity, 9 L. C. J. 48, per Batlyhy, J. (d) lb. 4'.», per liadiihii, J. (c) lb. 51, per BadyUy, J. EXTRADITION. 29 our Legislature exceeded its authority in introducing them into the 12 Vic, c. 19. The mistake probably arose from a desire more iuUy to explain that the word juris- diction used in the Treaty was to extend over the several States in the same sense in which it was used when applied to the United States, (a) In this case it was strongly contended that these words were necessary in the Statute — that the jurisdiction of the United States, and that of the several States, are separate and indepen- dent of each other, and that the omission of these words necessarily and intentionally restricted the operation of the Ashburton Treaty to offences committed solely within the jurisdiction of the United States, and that when the offence was committed within the limits of any one of the Slates, it was not covered by the Treaty. The Court, in holding as already shown, declared that the surrender of persons for imputed crimes can only be made by the supreme executive authority of independent nations, and that in the United States it existed in the supreme Federal Legislature of the nation, and thus, as the object of the Treaty could only be attained by the national power, it did not reside in any one of the United States, (b) In the Treaty and the Statutes, the words Jurisdiction and territories are used concurrently and correlatively, and these general designations necessarily had reference to the aggregate dominions and territories of the high contracting parties — the General Governments of each — the United Kingdom of Great Britain and Ireland, with its Dependencies and Colonies on the one part, and the Federated General Government of the United States, with its State Governments, on the other, as aggregate (o) See Reg. v. Bennet H. Young. The St. Allan's Raid. 16',), per Smith, J. (6) 1G7-1» per Sm») See Stat. 18G9, EesiTveil Acts. ((•) Hey. V Morton, 1!», U. C. C. T. 21 ; per Wilson, J. 32 CRIMINAL LAW OF CANADA. cified crimes (a) ; and thereby to subject parties against whom a charge coming within the Treaty and statutes is sustained by evidence of criminality to be put upon trial before the proper tribunal of the country where the offence was committed (b) ; and thus to prevent the failure of justice which would naturally result from offenders in one country seeking refuge in the other, and there being amenable to no punishment : for by the principles of the Common Law pervading the jurispru- dence of both Great Britain and the United States, crimes are unquestionably considered local, and cognizable ex- clusively within the country where they are committed. Extradition laws are to be interpreted by the law of nations, in so far as the obligations created by them on the part of one nation to another are concerned ; and the then existing public law of both nations forms an essen- tial part of the national compact which is created by the passage of an extradition treaty. Consequently, on the passing of our extradition Acts, the public law of Great Britain, as well as the public law of the United States* became incorporated into the national coinpact. {d) The words of this Treaty should not be held to too narrow a construction ; and if the words used to carry out a design of general utility can x^roperly be construed so as to give efiect to and not defeat that design, the larger construction must be adopted, (e) The Treaty must be construed in a liberal and just spirit ; not labouring with legal astviteness to find flaws or doubtful meanings in its words, or in those of the legal forms re- (a) Her/. V. Morton, 19 U. C. C. P. 18 per Hanarfi/, J. (6) Re;/, v. Eeno and Anderson, 4 U. C. P. K. 211!), per Draper, C. J. ; the Chesapeake case, 44, per Ritchie, J. (r) lb. 44, per Ritchie, J. ((/) Reg. V. Rennet H. Younq ; the .S^ Allan's Raid, 4C9, per Smith, J. (e) Re Warner 1 U. C. L. J. N. S. 18, per Haijarti), J. EXTRADITION. 38 quired for carrying it into effect. Its avowed object is to allow each country to bring- to trial all prisoners charged with the expressed offences, and it is based on the as- sumption that each country should be trusted with the trial of offences committed within its own jurisdiction, "VVe are to regard its avowed object in construing its pro- visions. ( a) "We should look to it for an indication of what was probably meant by anything that may seem ambiguous in the language of the statute, {b) The Treaty applies to all persons being subjects of both nations, and as well slaves as freemen, (c) The words of the 31 Vic, c. 94, are large enough to embrace all persons, subjects, denizens, or aliens, who have com- mitted the crimes enumerated in the United States, and who are found in this Province ; and a British subject committing one of the crimes enumerated in the Treaty, within the jurisdiction of the United States, and after- wards fleeing to Canada, is subject to the provisions of the Treaty, and the Statutes which provide for the sur- render of "all persons" .who, being charged, etc. (c?) So a person convicted of forgery, or uttering tbrged paper, in the United States, who escapes to Canada after verdict, but before judgment, is liable to be surrendered, although, technically speaking, after judgment, or verdict of guilty, a man is incorrectly spoken of as "charged w^ith a crime" in the language of the Statute, (e) But political offenders have always been held to be excluded from any obliga- tion of the country in which they take refuge to deliver them up, whether such delivery is claimed to be due (a) Re R G Burle;, 1 U C. L. J. N. S. 49-30, y>^v Hagarty, J. ; and see Reu. V. John Fdjrtoii, 10 L. O. J., 21(), per Drumnwiid, J. (6) Re Auihmou, '20 U. C. Q. B. ICO, per jfiobinson, C. J. {(:) Kti Avihrsoii, 20 U. C. Q. B. 124, 11 U V. V,. P 1 ((/) Re Betnict G. Burhy, 1 U. C:. L. J. N. S. 34 ; lb. 20. (e) He Warner, 1 U. C. L. J. N. S. IG. 34 CRIMINAL LAW OF CANADA. under friendly relationship, or under treaty, unless, in the latter case, the treaty expressly includes them, (a) The Treaty, in expTess terms, includes seven dilierent offences — namely, murder, assault with intent to commit murder, piracy, arson, robbery, forgery, and the utterance of forged paper. These offences are not political, but social, though the Governments of Great Britain and the United ^States have made national laws for each respec- , tively, thereby giving them a municipal legal character, (b) The stipulations of the Treaty, with regard to the de- finitions of the crimes covered by it, are to be carried out in conformity with the municipal law^s of both countries, in so far as they agree, (c) The Governments of these two countries, in making the Treaty, were dealing with each other upon the foot- ing that each had at that time recognised laws applicable to the offences enumerated, and that these laws would not, in all cases, be the same in both countries. The as:reement to surrender to each other criminals of certain classes w^as based upon the fact of the persons being cri- minals by the laws of the country from which they came, provided the evidence of criminality, according to the laws of the place where the fugitive so charged should be found, would justify his apprehension and commit- ment for trial if the crime or offence had been there com- mitted ; (d) and in this case it was held that, as slavery was tolerated in the United States, and the apprehension of a fugitive slave was authorised by law, such slave could not lawfully resist apprehension in order to gain his free- dom, though our law conferred it upon every man, and, consequently, that a slave, so resisting, might be guilty (a) Re;/. V. Bennet H. Yonni/ ; the St. Allan's Raid, 470, per Smith, J. (b) Meg. V. Jimnet H. Yonna, 9 L. C. J., 44, per Badgley, J. (r) The St. Alban's liaid, 469, ppr Smith, J. Id) Be Anderson, 20, U. 0. Q. B. 190, per Burns, J. EXTUADITTON. 86 of murdor, and not necessarily of manslanghter, on the o-ronnd that his resistance was lawful, (a) So far as we in Canada are concerned, the Treaty and t>tatnte8 are to be construed accordiiifr- to our laws in re- ■nard to the oflences comprised within their provisions. In other words, the otfence must be one of those enume- rated accordhig- to our law, and the notions we entertain as to the ingredients necessary to constitute it. {b) But our law is not absolutely to govern as to the par- ticular otfence in all its ingredients, and in relation to whatever circumstances may have influenced the party in committing it. Defore this rule could prevail, there .should be a similarity between the law of the State from which the person has lied and that of our country, in all the features and attributes of the particular crime. To some extent it might be reasonable to hold that the law of the two countries should be found to correspond. For example, if it were the law of a State that every in- tentional killing by a slave of his master, however sudden, should be held to be murder, without regard to aiiy cir- cumstances of provocation, or of any necessity of self- defence against mortal or cruel injury, then a fugitive slave who, according to the evidence, could not be found g'uilty of murder without applying such a principle to the case, could not legally be surrendered by the Treaty. It cannot, however, be held that, because a man could not, in the nature of things, be killed in this country while he was pursuing a slave, because there are not, and l^y law cannot be, any slaves here, therefore a slave who has lied from a slave State into this country, cannot be given up to justice because he murdered a man in that State who was at the tune attemi)ting to arrest him, (a) Re Anderson, 20 U. C. Q. B. 190, per Burns, J, .{!,) Re Trueman B. Smith, i U. C. P. R. 215. SG CRIMINAL LAW OF CANADA. under the antliority of the hiw, in order to take him be- fore a Magistrate, with a view to his being sent back to his master. Under such circumstances, reference should be had to the positive hiw of the slave State, to the conduct of the party pursuing and the party pursued, to the know- ledge of the latter that the jnirpose for which it was de- sired to arrest him was not contrary to the law of the country, or to the fact (if it ish'^nld be so) that there w^as no apparent necessity to inilict death in order to escape, (a) There are several decisions in our own courts as to the particular ollences covered by the Treaty. Among the earliest and most important of these is Anderson's case (b). In that case, A., being a slave in the State of Missouri, belonging to one M., had left his owner's house with the intention of escaping. Being about 30 miles from his home, he met with D.,a planter, working in the Held with his negroes, who told A. that as he had not a pass he could not allow him to proceed ; but that he must remain until after dinner, when he, D., would go with hiiTC to the adjoining plantation, w^here A. had told him that he was going. As they were walking towards D.'s house, A. ran off, and D. ordered his slaves, four in num- ber, to take him. During the pursuit, D., who had only a small stick in his hand, met A., and was about to take hold of him, when A. stabbed him witli a knife, and as D. turned and fell, he stabled him again. D. soon after- wards died of his w^ounds. By the law of Missouri, any person may apprehend a negro suspected of being a runaway slave, and take him before a justice of the peace. Any slave found more than 20 miles from his (a) Re Anderson, 20, U. C. Q. B. 170-1, per Eobinson, C. J. (6) 20 U. C. Q. B. 124. EXTRADITION. 87 home is declared a runaway, and a reward is given to whosoever shall apprehend and return him to his master. A. having made his escape to this country, was arrested here upon a charge of murder; and the justice before whom he appeared having committed him, he was brouaht up in the Court of Queen's Bench upon a Habeas Corpus, and the evidence returned upon a rerllorari. It was contended that as K. acted only in defence of his liberty, and upon a desire to gain his freedom, there was no evi- dence upon which to found a charxre of murder, if the alleged ollence had been committed here, and that he could not be demanded by the Treaty: — Held that under the Treaty and our statute Con. f^tat. Can , c. 89, the prisoner was liable to be surrendered. In Re Beebe, {a) the Court held that burglary is not an offence within the meaning of the Treaty, or the statutes passed to give effect to the Treaty. In another case, a prisoner was arrested in Ontario for having committed in the United States the crime of for- gery, by forging, coining, counterfeiting, and making spurious silver coin, etc. : — Held that the ollence as above charged does not constitute the crime of forgery within the meaning of the Treaty or Act, for it was not forgery according to our law. (ft) In ex parte E. S. Lam- irande, (r) the Court held that the making of false entries in the books of a bank does not constitute the crime of forgery according to the law of England or Canada, and the prisoner, therefore, was not liable to be extradited on the requisition of the French authorities tir.vler the Imp. ^Statute & 7 Vic, c. 75. In Reg. V. Gould, ((/) Hagarty, J., at page 162, says, (a) 3 I'. C. P. R. 273. {h) Ke Trinman B. Smith, 4 U. C, P. R. 21.5. ((•) 10 I.. V. J. 280. <(/) 20 U. V. C. P. 134 38 CRIMINAL LAW OF CANADA. " The term 'forgery,' in the extradition treaty, means that which by universal a'?ceptation it is understood to mean, namely, the ^aaking or altering a writing- so as to make the writing ( ; alteration purport to be the act of some other person which it is not. " It seems piracy, as used in the Treaty, was in- tended to apply to piracy in its municipal accepta- tion, cognizable only by tribunals having jurisdic- tion either territorially or over the person of the otlender. If, however, it signify piracy in its primary and general sense, as an offence against the law of na' tions, it can only come within the operation cf the Treaty when a pirate, having gone into one or other of the countries, and so made himself amenable to its courts and alter having been there legally cluirged wdth the olfence, has lied or been subsequejitly found within the territory of the other {a). When an act assumes an international character, and is sanctioned by the agoTegate power and will of a na- tion claiming to exercise belligerent rights, all private jurisdiction over it, as regards individual responsibility, ceases, and it is ))eyond the reach of the Treaty or the Statutes. In such case, rei'erence can only be had to the arbitrannMit of the sword. And an olfence cannot be divested of its international character, by selecting from an act — referable for its approval or censure only to the law of nations — a portion of, or an incident in, such act, and then attempting to subject such portion or such incident to trial by a municipal tri' iiuil, for the whole of the details and incidents which in the aggregate con- stitute a national or hostile act, must be taken together. (b) In accordance with these principles, it was (>, 1 U. ('. ],. J. N. S. .W, v^v John H'ihon, J. 42 CRIMINAL LAW OF CANADA. in one of the United »States of America, and stating- the information to be laid before " the nndersij:^ned Police Magistrate in and for the County of the City of Toronto, amongst other Counties appointed under and by virtue of the Act of the Parliament of Canada, 28 Vic, c. 20, entitled," etc. The warrant of arrest described M. as Police Magistrate for all these Counties, naming them in full, and the warrant of connnitment as Police Magistrate for the County of Essex, amongst other Counties ap- pointed under and by virtue of the above Act (but no commission empowering him to act was produced on this application, which was for the prisoners' discharge under a writ of Habeas Corjms). Under this warrant, the prisoners were conveyed to J^., in the County of Essex, and evidence was given there, before M., of the robbery hi question, consisting of certain depositions taken in the United State's, before a Justice of the Peace there, on which an original warrant of arrest was issued by him. These depositions had been taken, and warrant issued, after the arrest at Toronto. On this evidence, the pri- s-'iiers were comm:tted to custody, to await the warrant of theCrovernor-General for their extradition to the United States. The prisoners, it seemed, had been previously arrested at Toronto on the same charge, and been dis- charged by the local Police Magistrate, after a lennthened investigation had before him. It was held that this discharge did not prevent another duly qualilied oilicer from entertaining the charo-e against them, on the same or on fresh materials, and that the failure of one Magis- trate, from mistake or otherwise, to commit persons charged for extradition, cannot prevent the action of another: Held, also, that the 20 & 30 Vic, c 51, s. 873. (now repealed and re-enacted by (Out.) 32 Vic, c G, s. 11) only applied to any case arising in any town or citi/ in EXTRADITION. 48 Ontario, and did not preclude M. from taking the infor- mation of B. and issuing his warrant in Toronto, where there was already a Police Magistrate; for that the words of the section merely excludod him from jurisdiction there in local cases, but did not apply to cases arising under the extradition laws. It W!is further held, that the appointment of M. might well have been made under 28 Vic, c. 20, for any one or for all the Counties of Ontario, including Toronto, and his power made the same as a Police Magistrate in Cities, except as regarded purely municipal matters, and that this Act was coiitinued by (Ont.) 31 Vic, c 17, s. -i ; but that as notliing was suggested in any way impugning the possession by M. of the authority to act, the ordinary rule must prevail, and the warrant be treated as executed by an officer possessing such authority. ((() A warrant may b<\ in the lirst instance, issued in this country, and the proceedings under the Treaty and Sta- tutes initiated here ; (6) and it is not necessary that an original warrant should have been granted in the United States. The charge maybe made within the jurisdiction of either of the high contracting parties, in case the evi- dence of criminality, "accordhig to the laws of the place where the fugitive, or person so charged, should be found, would justily his apprehension and commitment for trial, if the crime or oH'ence had been there committed, (c) It is not a condition precedent to the jurisdiction of the magistrate that the charge should be lirst laid in the United States, or that a requisition should be lirst made by the Government of the United States upon the Canadian Government, or that the Governor-General of (a) Ihv. V. .lA.)/•^)/^ 1!) V. V. c. p. <». tt''!'/ ,V"', .•■'!"'"■•'"'"' ^' ^^- ^'' ^''- ^'- ^'-^ V^r Draper, ('. .F. ; Rt) A life p. 2t). rr) !t !>.('. .1. 2!) C>iJ Re li. a. Burki), 1 U. C. L. J. N. S. 45, per Richards, J. EXTRADITION. 45 lishod rule and practice that every offence against our law must be enquired oi', tried, and determined within the County or place wherein it was committed. (<() The Judge or Magistrate issuing the warrant for the apprehension of the otfender, is the person before whom the evidence in support of the charge must afterwards be heard, and he must determine upon its sufficiency ; (h) but his decision is not binding on the Governor, and the latter may, notwithstanding, order the prisoner's dis- charge : (c) for the magistrate must send or deliver to the Governor a copy of all testimony taken before him, that a warrant may issue upon the requisition of the United States for the surrender of the prisoner pursuant to the Treaty, {d) Nor is the opinion of the committing magistrate conchisive on the prisoner; for, if adverse to the latter, he may still apply to the Governor, whose de- cision may possibly be influenced by considerations which a court could not entertain, (e) And a quccre is added to this case whether it was not the intention of [ the 31 Vic, c. 94, to transfer to the Governor exclusively ' the consideration of all the evidence, that he might de- termine whether the prisoner should be delivered up. It may be observed here, that the surrender of persons for imputed crimes can only be made by the supreme executive authority of independent nations. (/) 13y the British North America Act, 18G7, s. 132, the Parlia- ment and Government of Canada shall have all powers necessary or proper for performing the obligations of Canada, or of any Province thereof, as part of the British (a) Rfij. V. Reno and Anderson, 4 IT. C. P. R. 292, per Draper, C. J. (b) The Chesapeake case, 4(j ; Re Ai-Ursim, 20 U. Ij. C^. B. 1115-9, per Rohiii' son, C, .1. (c) lb. 189, per jBurns, J.; Itcg. v. Reno and Anderson, 4 U. C. P. R. 295, :r Draper, C J. (/; Re B. O. hurley, 1 U. C. L. J. N. S. 4.') i)er Richards, C. J.; Re nderson, 20 U- C. C^ B. 105-189 ; see .SI Vic. c. 94, ». 1. per A (e) Re;/, v. Reno and Anderson, 4 U. (J. P. R. 295, per Draper, C. J. (f) Reg. V. Rennet H. Young; the St. Alban's Raid, 107, per iSnitai'ty is committed under a magistrate's warrant, he may apply to any of the superior courts or judges for a Habeas Corpus, and the court in term, or the judges in vacation may determine whether the case be within the Treaty, and, if not, whether a legal power to surrender the prisoner is, nevertheless, reposed in the executive (j-overnment ; and, if so, then whether a case was made out which entitled the Government to grant such sur- render, (a) The Governor is not authorized to surrender the prisoner until the expiration of seven days after his commitment, (b) This is a new provision, and was probably inserted in the statute to give the prisoner an opportunity of having the magistrate's decision reviewed on Habeas Cor/)vs and certiorari. The fact that the person is charged with piracy com- mitted in the foreign country ought not to prevent the Governor from surrendering him on the charge made and proved in this country. But if the charge in this country is robbery, and the recjuisition on l)ehalf of the Government of the foreign country be for his extradition ^or the crime of piracy, he could not be surrendered un- der a warrant of commitment for robbery. And if his surrender is demanded for any other offence than the one for which he has been committed, it must be re- fused (c) Looking at the statute, we iind that the commitment of the prisoner is to be made upon such evidence as, according to the laws of the Province in which he has been appre- hended, would justify his apprehension and committal for trial, if the crime of which he is accused had been committed therein. This seems to impose on the magis- trate the same duties as devolve upon justices of the (a) Her,. V. TuhUe, 1 U. 0. P. R. 98. (b) ;U Vic. c. 94, 8. 3. (cj He B. G. Burlei/, 1 U. C. L. J. N. S. 45-6, per Richards, C. J. 48 CRIMINAL LAW OF CANADA. peace, on charges of indictable offences committed ^Yithin our own jurisdiction ; and when he would commit for trial under a similar state of facts arising in this country, he is bound to commit for trial under the I'reaty, and our statutes passed to carry it out. (a) The authority of the magistrate does not extend beyond the encjuiry indicated by the statute ; (6) but he is bound to see that the com- mitment for extradition is w^arranted by the statute, and that the offence is sustained by evidence w^hich in our own courts would prima fade establish the crime charged, (c) When such prima fade case is made out, and the evi- dence in defence is not clear and conclusive, a jury is the only constitutional tribunal which can determine whether evidence offered to dispJace the impression which the prima fade case is calculated to make, does or does not satisfactorily displace it ; and all questions of intent, or of fact or inference, should be submitted to them, {d) The magistrate, therefore, should not go be- yond a bare enquiry as to the prima facie criminality of the accused, and should not enquire into matters of de- fence which do not affect such criminality ; such, for instance, as whether the prosecution of the offender is barred by a statute of limitations in the foreign countiy, or whether there is a probability of the idtimate con- viction of the prisoner therein, {e) ConHicting or un- satisfactory evidence in answer to a strong prima fade case, though perhaps properly receivable, would not jus- tify the magistrate in discharging the prisoner : (f) for it is to be observed that he cannot try the case here, nor weigh conflicting evidence, nor assume the functions of a (a) Re B. G. Burle;/, 1 U. C. L. J. N. S. 48, per Richards, C. J. (bj Reij- V. Reno and Anderson, 4 U. C. P. R. 2 81. ((■) Reij. V. Morton, li), U. (!. C. P. 25, per Wilson, J. \d) Reg. v. Gould 20 U. C. C. P. 1.50, per triw.v/iMe, J. ; the Chesapeake case 48. (e) Ex parte G. H. Martin, 4 C. L. J. N. S. 200, per Morrison, J. (/) Reg. V. Reno and Anderson, 4 U. C. P. R. 281. EXTRADITION. 49 jury by dociding as to the credibility of witnesseii. (a) In Burley's case, tho accused, on his examination before the mau'istrate, admitted the acts charged, which prima facie amounted to robbery, and aHeged, by way of de- fence, matter of excuse which was of an equivocal char- acter, and bore different interpretations, and the court held that the magistrate could not try the case, nor act on the explanatory evidence by way of defence ; but the prima fade evidence being sufficient to justify the com- mittal of the prisoner, the facts necessary to rebut the prima fade case could only be determined by the courts of the United States, If there is not sufficient evidence of criminality, the magistrate ought not to commit; if there is, he ought, notwithstanding the evidence is suf- ficient, if true, to rebut an alibi. If he discharges be- cause the evidence pro and con is equally strong, and he cannot determine which side is telling the truth, he is in error, because, in either of these cases, if he pursued any oth'^r course, he would, for many purposes, be assuming the functions of a jury, and, on a preliminary investiga- tion, trying the whole merits of the case, though the en- quiry was only instituted to ascertain whether the evi- dence of criminality would justify the apprehension and committal for trial of the person accused, (h) If the facts proved admit of different interpretations as to the intent with which the prisoner acted, this is no ground for refusing to commit for extradition, because the question of intent is for the jury on the trial, (c) Thus, if the charge is of assault with intent to commit murder, it is no objection that the facts proved are as (n) Rvj. V. Reno mid Anihrmii, 4 U. C. P. l\. 281 ,• Ke Biirlci/, 1 IT. C. L. J, N- S. :-i4 ; Eeii. v. Bennct H. Yoiin;/ ; the .S7. A/han's Ilaid, 449, per iimith, J. ; ■ex piute (J. If. j\[artin, 4 (J. L. J. N. S. '200 i)er Mi)rri»m, J. {!>) Rerj. V. Rain and Anderson, i U. V. V. R. 2!t!), iier Draper, C. J. ; Ee £. a. Burleii, 1 U. C. L. J. N. S. 40, y,ev Rie/iards, V. J. (cj The Chesapeake case, 48. D 60 CRIMINAL LAW OF CANADA. much Gvidonce of other felonious intents as of the intent to murder, (a) And if the evidence presents several views, on any one of which there may be a conviction, if adopted by the jury, the court is not called upon to determine which of the views is best supported, but may commit the prisoner for surrender. (6) The magistrate should remember that the citizens of a foreign country are entitled to precisely the same measure of justice as our own people, (c) But he should not hesitate in committing the prisoner for extradition from any fear that he will not be fairly dealt with in the United States ; and, even if he is satislied that the prisoner will not be tried fairly and w^ithout prejudice in the foreign country, he cannot refuse to give effect to the statute by acting on such an assumption, [d) But he must assume that courts in other countries will be governed by the same general principles of justice which prevail in our own courts, and that the prisoner will have a fair trial alter his surrender, (e) We are not to overlook or forget for an instant that we are dealing wath a highly civilized people, most tenacious of their liberty, whose laws are similar to our own, but adminis- tered with more of the common law technicality than we have thought it expedient to retain, by which many ave- nues are left open for criminals to escape which we have closed ; (/) so that a prisoner is more likely to be ac- quitted in the United States than here. An information stating that the prisoner was appre- hended " on suspicion of felony," was held too general, (a) Rcd. V. Reno and Anderson, 4 U. C. P. II., 296, per Draper, C. J. {^b) Re';/. V. aoiild, 20 U. C. (J. P. 154. ((■) Ke Kcrmott, 1 Clir. Reps. 25(i, per Sufi i run, .T. ((/) lie Anderson, 20 U. C. Q. B. 173, per Robumm, C. J. (e) Re;/, v. Reno and Anderson, 4 U. C. P. K. '2W. per Draper, C. J. ; Re li. G. Burlei), 1 U. (J. L. J. N. S. 48, per Ricliards, C. J. (/) Reij. V. Morton, lU U. C. C. P. 25, per Wilson, J. EXTKADITION. 61 as not containing a charge of any specific offence, (a) The inlbrmatioi) in this case was considered as for an ordinary offence, committed within our own jurisdiction. But it is no objection to the information and complaint on which the Magistrate issues his warrant for the arrest of the party, in the first instance, that the complainant was not an eye-witness of the facts to which he deposes, or that they are stated on information and belief; at least, the offender may be lawfully brought before a Justice, and detained a reasonable time, until the proper evidence can be produced, (b) In Re Kermott, (c) a question was raised, whether a com- mitting Magistrate could detain a prisoner on evidence amounting only to a ground of suspicion, for the purpose of other evidence being imported into the case, so as to bring it within the Treaty; but, per Sullivan, J. {d), neither the Treaty nor the Statutes contemplate the surrender of an accused person upon more susj^icion. However the law may be on this point, there is no doubt of the Magistrate's power to detain the prisoner when the evidence is clear and satisfactory as to his guilt, and this even although he has been arrested upon a void warrant. Thus, where a prisoner was com- mitted for extradition, and a Habeas Corpus and Certiorari for his discharge obtained, it was held that the material question was, being in custody, whether a sufficient case was made out to justify his commitment for the crime charged ; that it was immaterial that the original informa- tion, warrant, etc., were ir.egular and defective, if, on the hearing, sufhcient appeared to justify the commitment ; that it would be absurd to discharge the prisoner because the (a) Reg. V. Bcnnct H. Youmj ; tlie St. Allan's Raid. (b) He Anderson, 20 U. C. Q. B. 151, per Robinson, C. J.; and see Rea. v Reno and Anderson, 4 U. C. P. 11. 287. (rj 1 Clir. Rep. 253. (dj lb. 256, 52 CRIMINAL LAW OF CANADA. warrant might bo void, whnn tho ovidonoe, on tho hear- ing-, would justify roarrosting him tho next moment, and that the commitment must therefore be uphold, (n) In lie Anderson, (h) it was hold that, whon a person is brought before the Court upon a writ of Tlnheas Corpuit, and the warrant of commitment upon which he is de- tained appears on its face*, to be defective, the Court beibre whom the prisoner is brought has no authority to remand him, and that such power is only possessed by the Court in virtue of its inherent Jurisdiction at common lav.'', and does not oxtei^d to proceedings under the Ex- tradition Treaty and Statutes. IJut it has been held in Quebec that a Judge of Sessions, when a prisoner is brought before him on the original warrant of arrest, has power to remand under the Treaty and Statut(\s; and when the remand appointed no day for the further ex- amination of the priso .r, and an application was made for a Habeas Corpus (before the eight days aft(>r the remand had expired), {c) on this ground, and on the ground that the.Tudge had no power to remand, the writ was refused, the Court holding that the power to romand was essential to the performance of the Magistrate's duties, and that the irregularity in notiixing the day was unimportant, {d) We next proceed to consider the evidence by which the charge before tho Magistrate is to be sustained. The provision in the Statute as to the (n'idence of cri- minality being sullicient to justily the apprehension and committal for trial, if tho ollence had been committed here, men^ly furnishes a test as to the kind of »n'idencG rec]uir(^d. (e) So far as regards th(^ means ol' proof, there can be no doubt that it is our law which must (n) Ex i..art.! d. If. Martin, 4 C. L. J. N. S. 198, ('-; 11 n. ('. C. V. I. (r) Scf :{'2 ,1 ;{;{ yi,-., r.:v), s. 41. («/) /l<;;. V. lininitl II. Yoiim/ ; the St. Allmn'.i Raid, l."i. (c) Re Warner, 1 U. 0. L. J. N. S. 18, por Uauarty, J. EXTRADITION. 53 govern, according to the provision in the Statute. If, lor instance, the law of the Status, or any of them, should admit a confession extorted from a party by violence or threats, to be used against him on a charge of an offence coming within the provisions ol the Treaty, such evidence could not be admitted here, {a) The Judge, or other person acting, may proceed upon original viva voce testimony, in like manner as " if the crime had been committed in this Province." lie may, however, also receive copies of the depositions on which the original warrant was issued in the United States, in evidence of tin; criminality of the accused, (b) But as the 31 Vic, c. 94, s. 3, is an enabling Act, there is no obligation on the part of tin; prosecutor to produce such depositions, (c.) in construing and applying the third section of the a})Ove Act, which renders copies of the depositions on which the, original warrant was granted in the United States admissible here, we must look at the spirit of the provision, not the mere letter, and in the language of our Interpretation Act, 31 Vic, c 1, thirty- ninthly, p. 64, we must give it such lair, large, and liberal construction and interpretation as will best en- sure the attainment of the o])ject of the Act, and of such provision or enactment, according to their true intent, meaning, and spirit. What the section intended was, that any depositions made in th(; United Slates, before propiir authority, and upon which a warrant issued for *he arrest of the accused, should be received as evidence of his criminality, on the hearing before the Magistrate; investigaling the charge. The main object contemi)lated by the enactment was to (a) I.'c Andvrsun, 'H\ V. . ('. Q. \\. l(i!t, |).r Ii»lnn»i>n, V. J. [t,) \{v II. It. <'uldw,ll, c, C. L. J, N. H. 227, 6 U. C. 1'. .".. 217, per A. WiUoii, ,i. ((•) lb. 227, ptT yl. Wil»on,J. 54 CRIMINAL LAW OF CANADA. sanction the use of depositions, and to avoid the necessity of brinofing- the deponents here ; and the referrinc^ to or connectinu- the de])ositions with the warrant in this sec- tion was for the purpose of ensuriiiii' that they should be such depositions as would be taken before competent authority, and in relation to the particular crime and the ofli^nce specified in the foreic^n warrant, (a) In this case, it was held that certified copies of deposi- tions, on which the warrant issued in the United states, after proceedings had been initiated in (Janada, and after the arrest in Canada, were admissible in evidence before the Magistrate, (h) But under the third section of this Statute, {(;) the depositions that may be received as evi- dence of the criminality of the prisoner must be those upon which the original warrant was granted in the United States, certified under the hand of the person issuing it, and not depositions taken subsequently to the issue of tho warrant, and not in any way connected therewith, {d) And as the Statute permits depositions taken in a foreign court to hn us

U. ( !. (!. P. IH, p.T HmiitrUi, A. in) Ko Andertoii, 20 [1 . ('. Q. H. l«;j, [tur McLean, ,f. EXTRADITION. 55 evidence of a professional gentleman as to the law of the United States is properly admissible before the Magis- trate, (a) In the St. Alban's Raid case, the examination of the witnesses for the prosecution was conducted in the manner prescribed by the 32 & 33 Vic, c. 30, s. 29 et seq., as to offences committed here. The prisoner was allowed to cross-examine the witnesses, and the de- positions certified that he had the opportunity of doing so. The voluntary statement of the prisoner w^as taken, as by s. 31 of this Statute, at the request of the Crown counsel. The Judge, however, declined to express an opinion as to its legality. (J)) The sufficiency of the cA'idence of criminality to justify the apprehension and committal for trial of the person ac'jused is to be determined by the Judge or Magistrate, upon his view of the transaction, as described in the tes- timony, taken in connection with the law of the foreign State where it occurred, as regards the offence in ques- tion, and also with reference to the law which governs our own Courts in regard to the sufficiency of evidence — that is, its sufficiency in point of legal character, and its adequacy to support the charge of the offence against the law of the foreign country, (c) The functions of the Magistrate are not simi)ly minis- terial in this respect. He must hear the evidence, and exercise a proper judicial discr(>tion as to whether the facts establish a case for the rendition ol'the prisoner, (d) It is very imi)ortant to determine the extent to which evidence in defence may be properly received before the Magistrate on behalf of the prisoner. It is submitted (a) III. 172, per IMnnmn, il .1. {!>) Sffc, also, the C/iim/ifukf aw, on Uipho jK>intp. ((•) Kc An.ihri„„i,\Hi\J. C. C^ 15. li>4, /{ohiiiunn, {'.. J. ( Walsh v. Natlrass- 19 U. 0. C. P. 4i57. per Gwynne, J. (/) Hayle v. Hayle, 3 U. C. Q. B. O. S. 295. (g) Ibid. CRIMES IN GENERAL. 75 may have a doubt on the eyideiice as to the facts showing a felony, (a) If a prima facie case is made out, and the evidence uncontradicted and unexplain- ed, would warrant a jury in convicting for the fel- ony, the judi^e should require the party to go before the criminal tribunal, before pursuing his civil remedy, {h) lithe judge is not morally satisfied that a felony has been committed, yet if the act were proved by only one witness, to have been feloniously done, and there were no circumstances inconsistent with such evidence, no- thing that could make the disbelief of it otherwise than purely arbitrary, the judge would not be wrong in non- suiting the plaintiff. (6-) It is for the judge to decide whether the case shall go to the jury in the civil ac- tion, (d) If the judge has reason for doubting whether the act is felonious but, nevertheless, allows the case to go to the jury, and a verdict is found for the plaintiff, it will not be set aside, as this will only be done in the in- terests of public justice, (e) We now proceed to notice the exceptions to the gen- eral rule suspending the civil remedy in case of felony. Under " The Temperance Act of 1864," 27 & 28 Vic, c. 18, ss. 40 and 41, the legal representatives of the party may mainiain an action for damages against the inn- keeper, although the act giving rise to the right of action is also a felony, and the innkeeper has neither been ac- (a) Willinms v. Robinson, 20 IT. C^. C. P. 255. Walsh v. Nattrass, 19 U. C. C. y. 4.')3. Pease V. M'Aloon, 1 Kerr, 111. (6) Pease y. M'Aloon, supra. {r) Williams v. Robinson. 20 IT. C. C. f. 2.56-7, per Haxjarty, J. Brown V. Dalbii 7 U. C. Q. B. 102-3, per Robinson, C. J. See also Vincent v. Snraoue, 3 U. V Q. B. 283 (d) Walsh V. Ifattrass, 19 U. C. C. P. 456, per Gwunne, J. Williama v. Eobitison 20 IT. C, C. P. 255. (e) Walsh v. Nattrass. supra. Brown v. Dallni supra. Williams v. Robin- ton, supra. See also on this subject Lutttre.ll v. Rcvnall, 1 Mod 283. Stone . Marsh. 6 B. C. .551. Marsh v. KeaHng, i. Bing. N. 0. 198. Wellock v. Con- ttantine.7 L T N. S. 751, 32 L J. Ex 285, 9 Jur. N. S. 232. Chowne v. BayliSr 76*; CRIMINAL LAW OF CANADA, C[\iitted nor convicted, (a) So by the Carriers' Act, (h) the plaintiff may reply that the carrier's servant feloni- ously broke the goods in respect of which the action is brought, which will, if shown, entitle him to recover, although the servant has not been prosecuted crimi- nally, (c) So, under the Con. Stat. Can., c, 78, the civil action is maintainable, though the act causing the death amounts to felony, and the party has neither been ac- quitted nor convicted; (d) and, lastly, neither this rule nor the reasons for it apply to the Crown, (e) It is to be regretted that the decisions in Quebec are quite adverse to those in the other Provinces on the above points. This is the only branch of the Criminal Law upon which there is any serious conflict in the decisions of the dif- ferent Provinces. It has been held in Quebec that the civil remedy is not suspended when a felony is disclosed in evidence, and this with reference to assault, perjury, arson, rape and felony in general. (/") By the general term crime, is meant such offences only as are punishable by indictment. Those of an inferior character, punishable on summary conviction before a justice of the peace, are usually designated offences, (g") Crimes are divided into two classes, namely, felonies and misdemeanors, (h) Felony is defined as an offence which occasions a total forfeiture of either lands or goods, or both, at the common law, and to which capital or other punishment may be superadded, according to the (aj McCurdy v. Swift, 17 U. C. C P. 126. (b) 11 Geo 4. and 1 Wm 4, c. G8, s. 8. {c) lb. 13(3. per Wilson. J. (d) lb 136. per A Wilson- J. Clarke v Wilson, Rob. Di?. 260. (e) Red. V. BeiJJenstein. 6 C. L J N S 38 ; .5 U C P. U 175. (fj Diuienay v. Hunter. Rob Dig 128. Lamothe v Chevalier, 4 L. C R. 160. Fortier "v. Mercier. Kob Dig. 127. Peltier v. Miville ib McGuire v. Liverpool and London Assurance Company, 7 L C. R. 343. Neill v. Taylor, 16 L. C. R 102 (g) St«. Bla. Com . Bk. 6. p. 96 (A) Re Lucas d: McGlashan, 29 U. C. Q. B., 92, per Wilson, J. CRIMES IN GENERAL. 77 degree of guilt, (a) All crimes which are made felonies by the express words of a statute, or to which capital pun- ishment is thereby affixed, become felonies, whether the word " lelony" be omitted or mentioned. (6) Where a sta- tute declares that the offender shall, under the circum- stances, be deemed to haxeje/oniousli/ committed the act, it makes the offence a felony, and imposes all the common and ordinary consequences attending a felony, (c) So where a statute says, that an offence, previously a misdemea- nor, " shall be deemed and construed to be a felony,"^ instead of declaring it to be a felony in distinct and posi- tive terms, the offence is thereby made a felony, (d) An enactment that an offence shall be felony, which was felony at common law, does not create a new offence, (e) But an offence shall never be made felony by the con- struction of any doubtful and ambiguous words of a sta- tute ; and, therefore, if it be prohibited under ' pain of forfeiting all that a man has,' or of ' forfeiting body and goods,' or of being at the King's will for body, lands and goods,' it shall amount to no more than a high misde meanor ; (/) and though a statute make the doing of an offence felonious, yet, if a subsequent statute make it penal only, the latter statute is considered as a virtual re- peal of the former, so far as relates to the punishment of the offence (f^). So if an offence be felony by one sta- tute, and be reduced to a misdemeanor by a later sta- tute, the first statute is repealed (A). When a statute on which the indictment is framed is repealed, after the (a) 4 Bla. Com 95. (b) Iluss. Cr. 4. Edn. 78. Rer;. v. Home. 4 Cox. C. C. 263. (cj Hex V. Johnson. 3 M & fci* 556, per Bayky. J. (d) Rex V. Salomons, R & M. C C. R. 292, ovemiling Rex v. Cale. R & M. C C R. 11. ' fej Reg V. Williams, 7 Q. B. 253, per Patteson, if. (/J Riiss. Cr 79- (if J lb 79. (hj Reg v. Sherman, 17 U. C. C. P. 171, per A. Wilson, J. Rex v. Davu\ 1 Leach, 271. v78 CRIMINAL LAW OF CANADA. bill has been found by the grand jury, but before plea, the judgment must be arrested (a) ; and where a statute creating an offence is repealed, a person cannot after- wards be proceeded against for an offence within it, com- mitted while it was in operation, even though the repeal- ing statute re-enacts the penal clauses of the statute repeal- ed (6). If a later statute expressly alters the quality of an offence, as by making it a misdemeanor instead of a felony, or a felony instead of a misdemeanor, the offence cannot be proceeded for under the earlier statute (c) ; or if a later statute again describes an offence created by a former statute, and affixes to it a different punishment, varying the procedure, and giving an appeal where there was no appeal before, the prosecutor must proceed for the offence, under the latter statute (d). If, however, in the case of a common law misdemeanor, a new mode of punishment, or new mode of proceeding, merely be directed, without altering the class of the offence, the new punishment, or new mode of proceed- ing, is cumulative, and the oflFender may be indicted as before for the common law misdemeanor, (e) Where a statute makes a second offence felony, or subject to a heavier punishment than the first, it is always implied that such second offence ought to be committed after a conviction for the first ; (/) and where a statute makes an offence felony which was before only a misdemeanor, an indictment will not lie for it as a misdemeanor, (g-) for thrf lesser offence merges in the greater. But now, (a) Reg v. Denton, 17 Jur. 454. Reg. v. Swan, 4 Cox- C C. 108. (bj Beg. v. Cummings, 4 U. C. L. J. 187. per Macaulay. C J. (c) Michell v. Brown, 1 E. & E. 267 ; 28 L. J. (MC) 53. Beg. v. Sherm&n, 17 U. C. 0. P, 169, per A. Wilson, J. Bex v. Cross, 1 Ld. Rayrn. 711, 3 Salk., 193. (d) Michell V. Brown, supra. («) Rex V. Carlile, 3 B. & Aid. 161, Arch. Cr. Pldg. 17 edn. 3. See alao lUg. V. Palliser, 4 L. C. J. 276. ( /) Bliss, Or. 79. (g) Bex V. Cross, 1 Ld. Raym. 711, 3 Salk., 193. , CRIMES IN GENERAL. 79 by the 32 & 33 Vic, c. 29 s. 50, although a felony ap- pears on the facts given in evidence, a n^'sderaeanor for which the party may be indicted, will not merge therein, and the party may be convicted of such misdemeanor. But the statute has no other effect than to authorize a verdict of guilty on the indictment as it is framed, although the evidence would warrant a conviction for the higher offence In other words, a party indicted for a misdemeanor cannot, under this clause, be convicted of any felony that may be disclosed in evidence, but only of the inisciemeanor for which he is indicted, if included in the felony proved (a). In this case it was held that a defendant indicted for a misdemeanor, in obtaining money under false pretences, could not, under the Con. Stat. Can., c. 99 s. 62, be found guilty of larceny, alth tugh the facts would have warranted such finding. ; The word misdemeanor is usually applied to all those crimes and offences for which the law has not provided a particular name (b). A misdemeanor is in truth any crime less than felony, and the word is generally used in contradistinction to felony, misdemeanors comprehend- ing all indictable offences which do not amount to fel- ony, as perjury, battery, libels, conspiracies, and public nuisances (c). Misprision of felony is concealment of fel- ony, or procuring the concealment thereof, whether it be felony at the common law or by statute {d). It is clear that all/e/ow«es and all kinds of rw/enor crimes of a public nature, as misprisions, and all other contempts, all disturbances of the peace, oppressions, misbehaviour by public officers, and all other misdemeanors whatsoever of a public evil example against the common law, may be in- (a) Bcr V. Swing, 21 U. C. Q. B. 523. (bj Luss. Cr. 79. (c) lb. 79. (d) lb. 79-80. 80 CRIMINAL LAW OF CANADA. dieted (a) ; and it seems to be an established principle, that whatever openly outrages decency, and is injurious to public morals, is indictable as a misdemeanor at com- mon law (6). If a statute prohibit a matter of public grievance , or command a matter of public convenience, all acis or omissions contrary to the prohibition or com- mand of the statute, being misdemeanors at common law, are punishable V)y indictment, if the statute specify no other mode of proceeding (c). But no injuries of a private nature are indictable, unless they in some way * concern the King {(I). If a statute in terms declare that it shall not be lawful to do a particular act, it seems the doing of it would be indictable, even though the act prescribes a summary remedy (e) : and it is not in all cases necessary to annex to it words showing that the intentio-i was to make it an indictable offence, if the statute be violated (f). If an Act of Parliament prohibits a thing being done under some specific penalty, then that penalty is all that can be enforced, but if in a different part of the statute certain consequences are entailed upon the prohibited act, then that is cumulative to the prohibition, and the act done contrary to the prohibition may or may not, according to the subject dealt with, be an indictable offence (g). When an act is not an offence at common law, but is made an offence by Act of Parliament, an indictment will lie, if there is a substantive prohibitory clause in such statute, though there be afterwards a particular pro- la) Rubs. Cr. 80. {6J lb. 80. (ci Reg. V. Toronto St. Ry. Co., 24 U. C. Q. B., 457 per Draper, C. J. Rex y. Davis. Say, 133 ; and see Rtx v. Sainsbu)-y, 4 T. it. 451. Kuss. Cr. 80. ((i Rex V. Richards 8 T. K. 634. huss. (Jr. 80. (e) Fomeroy & Wiison, 26 U. (J. Q. B. 47-8, per Hagarty, J. (/) Reg. V. Mercew 17 U. CJ. Q. B. 632, per Burnt, J. \g) lb. 632, per Bums, J. CRIMES IN GENERAL, 81 vision and a particular remedy given, (a) It is stated as an established principle, that when a new offence is created by an Act of Parliament, and a penalty is attach- ed to it by a separate and substantive clause, the prose- cutor need not sue lor the penalty, but he may proceed on the prior clause, on the ground of its being a misde- meanor, (b) A general prohibitory clause supports an indictment, though there be afterwards a particular pro- vision and a particular remedy, (c) And where a statute forbids the doing of a thing, the doing it wilfully, al- though without any corrupt motive, is indictable, {d) If a statute enjoin an act to be done, without pointing out any mode of punishment, an indictment will lie for dis- obeying the injunction of the legislature, (e) This mode of proceeding in such case is not taken away by a subsequent statute, pointing out a particular mode of punishment for such disobedience. (/) Where the same sta- tute which enjoins an act to be done contains also an en- actment providing for a particular mode of proceeding as commitment in case of neglect or refusal, it has been doubted whether an indictment will lie. (g-) But where a statute only adds a further penalty to an offence pro- hibited by the common law, there is no doubt that the oflfender may still be indicted, if the prosecutor think fit, at the common law. (/t) An offence is not indictable where an Act of Parlia- ment has pointed out a particular punishment and a specific method of recovering the penalty which it in- (a) Heff. V. Merco; 17 U- C. Q. B. 632. per Burns, J. ; Rec/. v. Mason, 17, U. C. C. P. .536, iwr Eichards, C. J. ; Bcq. v. Buchanan, 8, Q. B. 883: Beg. v. Crosslei/, 10, A. Bey V. Walsh. 3 Allen 54. (t) 11). ■ see ■ N. B. Rev. Stat., c. 29. 8 15, and c. 148, s. 4. (rf; Retj V. Bciinet, 21 U. (J. C. P. 238 per Oalt,J. (e) lb. 238 per Gait, J. 84 CRIMINAL LAW OF CANADA. An " attempt to commit a misdomeanor is a' misde- meanor (a) whether the offence was created by statute or existed at common law (6) for when an offence is made a misdemeanor by statute it is made so for all purposes, (c) So inciting another to commit a misdemeanor is in itself a misdemeanor, {d) In this case it was held that attempting to bargain with or procure a woman falsely to make the affidavit pro^'ided for by the Con. Stats. U. C, c. 77, s. 6, that A was the lather of her illegitimate child, was an indictable offence, on the ground that if the oath were taken and proved to be false, it would have amounted to perjury under the Con. Stats. U. C, c. 2, s. 15, or, at all events, to a misdemeanor, and inciting another to com- mit perjury is a misdemeanor on the above principle. On an indictment for misdemeanor the jury may find the prisoner guilty of any le&ser misdemeanor that is neces- sarily included in the offence as charged, (e) and on an in- dictment for felony or misdemeanor the jury may fiiid the party guilty of an attempt to commit it, which is a misdemeanor. (/) Under this statute (32 & -33 Vic, c, 29, s. 49) two prisoners may be convicted of misdemeanor^ though one is charged with attempting to commit a felony, and the other as aiding and abetting; him in the attempt. An indictment charged H with rape, and U with aiding and abetting him in the rape, the jury hav- ing found H and U guilty of a misdemeanor., H of at- temiding to commit the rape, and U of aiding; him in the attempt: Held that they were both properly convicted under the 14 & 15 Vic, c. 100, s. 9. {g) But upon (fi) Reg. V. Connolly, 26 U. C Q. B. 322. per Hayarty,J. Reg. v. Martin^ 9 C. & 1' , 213. Reg v. Goff, [) U. U. C i*. 4;i8. \bi Rex. V. Butler. 6 C & i^. 3U8 perPaWcrao/i, J. Rex. v. Roderick, 7 (J. & P. 795. Parke. B. Rex v. Cartwright. llusa. & Ky 107. I c) Rex. V. Roderick supra 795. per Parke, B. (d) Rtg. V. Cienieut. 20 U. C. Q. B 297. (ei Riv- V. Taylor, L K 1 (J. C K 19(),per Kelly, C. B. (/J Reg. V. Gojf, 9 U. C. i\ 438. 32 & 33 Vic, c. 29, s. 49. (g) Reg. v. Hai>good, L. K. 1 C. U. E. 221. CRIMKS IN GENERAL. 85 this clause the defendant can only be convicted of an attempt to commit the very offence with which he is charged, (a^ Nor can the jury convict under it of an at- tempt which is made felony by statute, but only of an attempt which is a misdemeanor, (b) But on an indictment for rape the prisoner may be convicted of an attempt to commit the rape, though the attempt is felony by statute, and the indictment is in the ordinary form, (c) An attempt to commit a felony, is also a misdemeanor, (d) and an at- tempt to obtain money under false pretences is a misde- meanor, (e) The act of attempting to commit a felony must be imme- diately and directly tending to the execution of the principal crime, and committed by the prisoner under such cir- cumstances that he has the power of carrying his intention into execution. {/) Where, the prisoners being indicted for an attempt to commit burglary, it appeared that they had agreed to commit the offence on a certain night toge- ther with one C, but C was kept away by his father, who had discovered their design. The two prisoners were seen about twelve o'clock that night to enter a gate about fifty feet from the house; they came towards the house to a picket fence in front, in which there was a small gate, but they did not come nearer the house than twelve or thirteen feet, nor did they pass the picket gate ; they then went, as was supposed, to the rear of the house and were not seen afterwards. About two o'clock some per- sons came to the front door and turned the knob but ' went off on being alarmed and were not identified : , (a) Ifeg. v. McPherton, Dears. & B. 197, 26 L. J. (M. C. ) 134. (h) Reg. v. Conncll, Cox 178. Ic) Heff.v. Webstei: 9 L. C. R. 196. 9fi^'^T'T^/v'-^''-o^f; 'J U. C. C. P. 438 per Draper, C. J. JRcy. v. Emonde, *o U. L. y. B. 152. (ei Rei/. V. Goff, supra. 1 tk'^^'^./v ^^<^^«««' 28, U. C. Q. B. 517. per Morrison, J. Itec/. v. Taylor, 1 Jf . & X • 511. 86 • CRIMINAL LAW OF CANADA. Held that there was no evidence oi' an attempt to com- irit the offence, no overt act directly approximating to its execution, and that a conviction therelor could not be sustained, {a) It', however, it had l)een proved that they attempted to enter the house, and were either interrupted or surprised in doini^ so, and made their es- cajje, and that but for such surprise or interruption they could have carried out their detsign of stealing certain money said to be in the house, there would have been evidence to go to the jury, (b) A conviction for an attempt to commit a felony cannot be sup- ported unless it appears upon the evidence that the felony might have been completed if there had been no interruption. If, therefore, upon an indictment for at- tempting to commit a felony by putting the hand into a woman's pocket with intent to steal her property therein, it appears that she had nothing in her pockets, a convic- tion cannot be sustained, (c) The prisoner was indicted for breaking and entering a shop with intent to commit felony, which by (24 & 2-5 Vic, c. 96, s. 57) the corresponding English section of the 32 & 33 Vic, c. 21, s. 56, is made felony. He was seen upon the roof, where a hole was found broken in, but there was no evidence of his having entered the building. The jury were directed that if they thought he broke the roof with intent to enter the shop and steal, they might iind him guilty of misde- meanor in attempting to commit that felony, and they found him guilty of the misdemeanor : Held that the conviction was right. (<7) (a) Reg. V. McCann, supra {fj) 10. 51G, per Morrinon J. ; see also Rep. v. Eafl^eton, 1 U. C. L. J. 179; Dears, ('. C. 51n ; Rej. v, Rolerts, ib. 539 ; Rex v. Martin, 2 Mood. C. C. 123 ; 9 C. & P. 213-21.5; Dw/dale v. Reg, 1 E. & B. 435. (c) Rea. V. Co lins. L. & C. 471, 33. L. J. (M. «J.) 177. 10 U. C. L. J. 308. (d) Reg. v. Bain, 8 U. C. L. J. 279; L. & C. 129; 31 L. J. (M. C.) 88. ^•^ ClUMKS IN GENERAL. H]^ l]ut attempting to commil a I'olony is clearly dis- tinguishable I'rom intendinix to commit it, for the bare wish or desire oi" tiio mind to do an illegal act is not in- dictable. So long- as an act rests in bare iiiieutiori it is not punishable by our laws, (a) but immediately when an act is done the law judges not only of the act itself, but of the intent with which it wasdone, (6) andan act, though other- wise innocent, if accompanied by an unlawful and mali- cious intent, the intent being criminal the act becomes criminal and punishable, (f) It has been hold under the corresponding English section ol the 31 Vic, c 72, s. 2, that the oilence of soliciting and inciting a man to commit a felony is, where no such felony is actually committed, a misdemeanor only, and not a felony under the Act which only applies to cases where a felony is com- mitted as the result of the counselling and procuring therein mentioned, {d) A disregard of, or non-compliance with, a positive command in an Act of Parliament is in- dictable as a misdemeanor, (e) Defendants' Act of Incor- poration required that the rails of their rail VN'^ay should be laid Hush with the streets and highways, and that the railway track should conform to the grades of the same, so as to oti'er the least possible impediment to the ordui- ary traffic of the said streets and highways : Held that the omission to lay the rails Hush with the street would be indictable without showing that any unnecessary im- pediment was offered to the traffic. (/) The motives of a party, though unimportant in (a) Re- 08 CRIMINAL LAW OP CANADA. civil cases, may bo taken into account in criminal proceedings. (f-..l (imli CHAPTEP II ^''"*'' ^'''''' ^"'''""'^ ^ THE PERSONS CAPAliLK OK COMMlTTIN(i (JKIMES, AND THEIR SEVERAL DEGREES OK GUILT. As a prima facie criminal liability attaches on every per- son, it is necessary to consider what delences may, in ditierent cases, be urged by dillerent persons, as grounds of exemption i'rom punishment. The law requires an exercise oi' understanding' and of will to render a person criminally responsible, therelbre a want or delect oi' either may V)e a good defence, (a) htfauls. — The general rule is, that ini'ants under the age of discretion are not punishable by any criminal prosecution whatever, but the agu of discretion varies according to the nature of this olience. (6) Thus, in some misdemeanors and odences, that are not capital, an infant is privileged, by reason of his nonages if under twenty- one ; for instance, if the oH'ence charged by the indict- ment be a mere nonfeasance, unless it be such as he is bound to do by reason of his tenure, or tlie like as to repair a l-ridge, {c) then, in some cases he shall be privi- leged, if under twenty-one, because laches shall not be imputed to him. (d) But if he be indicted for any noto- rious breach of the peace, as riot, battery, or for perjury, or cheating, or the like, he is equally liable as a person of full age, because upon his trial the Court, exojjicio. ought to consider whether he was doli capax, and had discretion (ft) Rus9. (!r. 6. (6) Auh. Vr. Pldg. 1«. {c) It-'x V. Sutton, ;i A. &, E. 607. (d) Arch, Or. Pldg. 17. PKRSONS r'APARLK OF CC MMITTING CHIMES. 91 to do the act with which h(i was charged. («) The law as to an iiilaiit's liability is moro clearly deliiicd with rel'crciicc to capital crimes, though (heir criminal respon- sibility does not so much depend upon their age as upon their judgment and intelligence, {b) But withni the age oi' seven years, no inl'ant can be guilty oi" lelony, or be punished lor any capiful ollence, I'or within that age there is an irrebuttable presumption ol' law that he has no mis- chievous discretion, (f) On attaining the age of iburteeu years, they are presumed to be dolt cafmres, and capable oI' discerning good i'rom evil, and are, with respect to their criminal actions, subject to the same rule ol' con- struction as others of more mature age. (d) Uetweenthe age ol' seven andlburteen years, an infant shall be deemed prima facie to be doli incnpax, but vialitia sup///et wtalein, and this presum])tion nuiy be re- butted by strong and pregnant evidence ol mischievous discretion, establishing it beyond all doubt and contra- diction, {e) When a child bi-tween the ages of seven and fourteen years is indicted for felony, two questions are to be left to tht^ jury— lirst, whether he committed the offence ; and secondly, whether at the time he had a guilty knowledge that he was doing wrong, (f) An inl'ant und(;r fourteen is presumed by law to be .unable to commit a rape, and, therefore, cannot be found guilty of it, and this on the ground of impotency, as well as the want of discretion. This presumption, it seems, is not aflected by the 32 k 33 Vic, c. 20, s. 05— makings the offence complete on proof of penetration, without evidence of emission. (<^) Nor is any evidence admis- (a) Tb. 17. (f<) Hush. Vv. 7 (r) IhiHs. ("r. 7 ; Marsh v. Loader, 14 C. B. N. S. 535, (lilj<. l(i. (c) An;h. Cr. I'ldfr. l(i. ffj Rex V. Oifcn, 4 ( ;. & P. 2:W. (i/) litx V. Uroombridye, 7 C. & V. 582. 92 ■ CRIMINAL LAW OF CANADA. sible to shew that, in fact, the defendant had arrived at the full state of puberty, and could commit the offence.(a) But he may be principal in the second degre'> if he aid and assists in the commission of the offence, and it ap- pears that he has a mischievous discretion, (b) It seems a Statute creating a new felony does not extend to infants under the age of discretion, (^cj and that Statutes giving corporal punishment do not bind infants, but other and general statutes do, if infants are not ex- cepted, (d) And where a fart is made felony, or treason, it extends as well to infants, if above fourteen, as to others, (e) Where the defendant, an indented apprentice, was convicted before two Justices, under the Acts of Assembly, for making brooms, contrary to an agreement contained in an indenture executed by him while an infant : — Held that the conviction was bad. (f) Persons Non Compotes Mentis — Every person, at the age of discretion, is, unless the contrary be proved, presumed by law to be sane, and to be accountable for his actions. But if there be an incapacity, or defect of the understanding, as there can be no consent of the will, so the act cannot be culpable, (g) Where the de- privation of the understanding and memory is total, fixed, and permanent, it excuses all acts, so, likewise, a man labouring under adventitious insanity is, during the frenzy, entitled to the same indulgence, in the same de- gree, with one whose disorder is fixed and permanent. (A) (a) Rex V. Philips, 8 C. & P. 736 ; Rex v. Jordan, 9 C. & P. 118 ; Rex v. Brimilow, ib. 3liG, 2 Mood. C. C. 122. (6) Rex V. Etdershaw, 3 C. & P. 396 ; see Rex v. Allen,! Den. C. C. 364, Arch. C;r. Pldg. 17. (c) Riiss. Cr. 10. \d) Dwarris 516. (e) Russ. Or. 10. (f) Rei/. V. Harris, 1 Allen, 100. (.7) Arch. Cr. Pld,'. 17. Ch) Ib. 18 ; Beverley's Case Co, 125. PERSONS CAPABLE OF COMMITTING CRIMES. 9^ It seems clear, however, that to excuse a man from pun-^ ishment on the g'round of insanity, it must be proved distinctly that he was not capable of distinguishing- right from wrong at the time he did the act, and did not know it to be an otfence against the laws of God and nature, (a) If there be a partial degree of reason ; a competent use of it sufficient to restrain those passions which produce the crime : if there be thought and design ; a faculty to disting-uish the nature of action ; to discern the difference between moral good and evil, — then he will be respon- sible for his actions, (h) Where the intellectual faculties are sound, mere moral insanity, — where a person knows perfectly well M'^hat he is doing, and that he is doing wrong, but has no control over himself, and acts under an uncontrollable impulse^ — does not render him irresponsible, (c) Whether the prisoner were sane or insane at the time the act was committed is a question of fact triable by the jury, and dependent upon the previous and contemporaneous acts of the party. Upon a question of insanity, a witness of medical skill may be asked whether, assuming certain facts proved by other witnesses to be true, they, in his opinion, indicate insanity, (d) It is said that, as to the crimi'-.al liability of a lunatic, the maxim is, actus nonfacil reuni nisi mens sit rea. (e). Imbecility, and loss oi mental power, whether arising from natural decay, or from x^aralysis, softening of the brain, or other natural cause, although unaccompanied by frenzy, or delusion of any kind, constitutes unsound- (a) Rex V. Offord, 5 C. & P. 168. (b) Ren. V. McNaitifhton, 10 CI. & Fin. 200 ; 1 C & K. 130 n. ; Rex v. ffia- ginson, 1 C. & K. 1^29. (c) Rex V. Burton, :\ F. & F. 772. (d) Rep. V. Frances, 4 Cox. 57, pe" Alderson B. and Cce.wioc//, J. ; Rcq v^ Writjlit, U. & 11. 4oG ; Reri8oner was accessory before the act, he could be indi< ted as if he were personally present. (6) J. and T. were driving a trap along the turnpike road lor a lawful purpose. J. got out of the trap, and went hito a field and shot a hare, which he gave to T., who had remained in the trap. J. having been convicted of trespass in pursuit of game, an information was laid under the 11 & 12 Vic, c. 43, against T., charging him with being x>i'esent aiding and abetting. On a case stated by the justices, it was held that there was abun- dant evidence on which the justices might have come to the conclusion that both were engaged in a common purpose, and that T. was guilty, (c) " Upon an indictment against E., H., and another for stealing and receiving, it was proved that H. was walk- ing by the side of the prosecutrix, and E. was seen just previously following her. The prosecutrix felt a tug at her pocket, and found her purse gone, and, on looking round, saw H. walking with E. in the opposite direction, and saw H. handing something to him. The jury were directed that if they did not think from the evidence that E. was participating in the actual theft, it was open to them on these facts to find a verdict of receiving. The jury found H. guilty of stealing, and E. of receiving : Held that upon the finding of the jury, E. was not a prin- cipal in the second degree, as the jury had not found (a) Reg. v. E»monde 26 U. C. Q. B, 152. \h) Ih. , per HagaHy, J. ,c) Stacey v. Wkite/utrst, 13 W. R. 384. . 102 CRIMINAL LAW OF CANADA. - that he was actinof in concert with tho otht^r prisoner in the theft, and that the conviction was right as well as the direction to the jury. It was objected, that upon the facts proved the jury should have been told to find E. guilty of stealing or of no offence. Upon the facts he was a principal in the second degree, aidhig and abetting, present, and near enough to allbrd assistance. Williams, J. : that is not enough to constitute a principal in the second degree; there must l)e a common purpose and intention, Wip^httnan, J., thought that the jury might very well have inferred concert, but they had not done 60. (a) A count alleging that A, and B., on the day and year aforesaid, and at the village of A. unlawfully, fraudulently, and knowingly were present, aiding, abettiiig, and as- sisting the said C, the misdemeanor aforesaid to commit, discloses an indictable offence, and is good in law^, and charges A, as a principal in the second degree, (h) Accessories before and after the fact. — An accessory before the fact, is he who, being absent at the time of the felony committed, doth yet procure, counsel, command, or abet another to commit a felony, (c) An accessory after the fact is one who knowing a felony to have been committed by another, receives, relieves, com- forts, or assists the felon, (d) It is only in felonies that there can be accessories, for in misdemeanors all are prin- cipals, (e) By the 31 Vic, c. 72, s. 9, aiders and abet- tors in misdemeanors are liable to be indicted, tried, and punished as principal offenders. There may be acces- fiories to a new statutory felony, in the same manner as (a) Reg. v. Hilton, 5 U. C. L. J. 70 BeU 24; 28 L. J. (M. C ) 28. (6) Reg. v. Connor, 14 U. C. C. P. 529. se who knowingly receive the offenders are accessorir ^^fter. {a It 18 a maxim that accessoriui sequiiur naturam nuv princi- palis^ and, therefore, an accessory cannot be guilty of a higher crime than his principal. (6) An accessory is, in some cases, relieved from responsi- bility with his principal, when the latter does not act in pursuance of his authority and instructions. If the prin- cipal totally and substantially varies from the terms of the instigation ; if, being solicited to commit a felony of one kind, he wilfully and knowingly commit a felony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt. But if the principal complies in substance with the instiga- tion of the accessary, varying only in circumstances of time or place, or in the manner of execution, the acces- sory will be involved in his guilt; and, even w^hen the principal goes beyond the terms of the solicitation, yet, if in the event the felony commitled was a probable con- sequence of what A-^as ordered or advised, the person giving such orders or advice wall be an accessory to that felony, (c) The 31 Vic. c. 72, makes provision for the trial of ac- cessories before and after the fact. This statute alters the old rule by which an accessory could not be brought to trial until the guilt of his principal had been legally ascertained by con^'iction. By this act, accessories before the fact are triable in all respects as principal felons; and every principal i i the second degree is punishable (a) F.U88. Cr. 61. ■ 76. Rubs. Cr. 62. U "■ 108 CRIMINAL LAW OF CANADA. ' i ' in the same manner as the principal in the first degree is punishable. By s. 8, in the case of a felony wholly committed within Canada, the offence of any person who is an accessory either before or after the fact, to such felony, may be dealt with, enquired of, tried, determined, and punished by any court which has jurisdiction to try the principal felony, or any felonies committed in any district, county, or place in which the act by reason whereof such person shall have become such accessary has been committed tr- OFFENCES AFFECTING THE GOVERNMENT, ETC. 109 CHAPTER III. , : < OFFENCES PRINCIPALLY AFFECTING THE GOVERNMENT, THE PUBLIC PEACE, OR THE PUBLIC RIGHTS. Coinage Offences. — These offences are now regulated by the 32 & 33 Vic, c. 18. A prisoner w^as indicted under the analogous English section of s. 24 ot this Act, for " knowing- ly and without lawful excuse felo'iiously" having in hispos- session a die impressed with the resemblance of the sides of a sovereign. The prisoner ordered dies impressed with the resemblance of the sides of a sovereign of the maker. The maker gave intormation to the police, who communicated with the authorities of the mint. The latter, through the police, gave the maker permission to give them to the prisoner. He did so, and they were found in the prisoner's possession: — Held, first, that it was necessary in the indictment to negative lawful au- thority or excuse, notwithstanding that the burden of proof lay upon the accused; secondly, that the word " excuse " includes " authority," and, therefore, the in- dictment was good ; thirdly, that there was no evidence to go to the jur 7 of lawful authority or excuse, for the prisoner was only allowed to carry out his original in- tention, whatever that might have been, and no authority was given him to have the dies in his possession; fourthly, that the prisoner, being knowingly in posses- sion of the dies, had sufficient guilty knowledge to con- stitute felony, whatever his intention as to their use might be, for there wls nothing in the act to make the intent any part of the offence, (a) The words as to the (a) Reg, v. Harvey, L. E, 1 C. C. R. 284. 110 CUIMINAL LAW OF CANADA. • proof being on the accused, only alter the rules of evi- dence, and not the rule as to the description of the offence in the indictment, (a) The 82 & 33 Vic, c. 29, s. 26, applies to a trial on an indictment under s. 12 of the Coinage Act for feloniously having in possession counterfeit coin after a previous conviction for uttering counterfeit coin ; and, therefore^ the previous conviction cannot be proved until the jury find the prisoner guilty of the subsequent offence. (6) Where coin was counterfeited to resemble smooth worn shillings then in circulation, without any impression whatever upon them, it was held to be a sufficient coun- terfeiting, (c) By the old law, the counterfeit coin must have appeared to have that degree of resemblance to the real coin that it would likely be received as the coin for which it was intended to pass by persons using the caution customary in taking money ; and the coin must have been in a complete and perfect state, ready for cir- culation. ((/) Now, however, by the 32 & 33 Yic, c 1 8, s. 32, the offence shall be deemed complete although the coin was not in a fit state to be uttered, or the counterfeiting thereof was not finished or perfected. By s. 30 any credible witness may prove the coin to be false or coun- terfeit, (e) The Imp. Act 16 & 17 Vic , c. 48, is not in force here. (/) But the Imp. Stat. 16 & 17 Vic, c 102, re- specting gold, silver, and copper coin, applies to this country, {h) The defendants were indicted under s. 18, of the Con. Stat. Can. c 90, for having in their custody and posses- (o) lb. 288, per Bonll, C. J. (6) Be/ current in the said United States of America, and also live dies, etc., . . used, constructed, devised, and adapted and designed for the purpose of counterfeiting and imitating the current silver coin of the United States of America, made and coined under the authority of the Government of the said foreign state,. and then actually current in the country of the said foreign state, of the value, etc." The defendants demurred to the indictment on the ground that the offence created by the statute under which the indictment was framed, is the having in possession coin counterfeited to re- semble, or dies, etc., for the purpose of imitating any foreign gold or silver coin described in the 16th section ; but, in this case, the coin was not alleged to have been either gold or silver, nor w^as it alleged that it w^as not current in this Province. The Court held it quite clear that the offence created by the Statute is the having in possession counterfeit coin resembling some of the gold or silver coins referred to in the 16th section of the Act ; 112 CRIMINAL LAW OF CANADA. that the recital did not on examination help the subse- quent part of the indictment; and that to bring the ollence within the Statute, it was necessary to allege that the coin was not current by law in this Province, and the indictment was consequently bad. But as to the dies, it was held that this latter allegation was not essential, as the intention of the Legislature, in using these words in the Statute, was to indicate that the having possession of such dies, etc., would be an offence, whether the foreign coins they were designed to imitate w^ere coins current or not in the Province. The indictment w^as quashed for insufficiency, (a) It is conceived this case will apply to an indictment under s. 22 of the present Act, and that such indictment must contain allegations shewnng the coin to be that described in sections 18, 19, 20, and 21 of the Act. Foreign Enlistment Offences.— The 33 & 34 Yic, c. 90, is now the governing enactment on this subject. It ex- tends to the w^hole Dominion of Canada, including the adjacent territorial waters, (b) This statute is highly penal in its character, (c) It, however, strengthens the hands of the Government, and enables it to fulfil more easily than heretofore that particular class of international oblio-ations which may arise out of the conduct of Her Majesty's subjects towards belHgerent foreign States with w^hom Her Majesty is at peace. It should be so construed as, on the one hand, to give, if possible, due and full execution to its main purpose, and, on the other hand, not to strain its provisions, so as to fetter the private commerce of Her Majesty's sulyects beyond the express limits which the statute, for {(,) Reff. V. Tierney, 29 U. C. Q. B. 181. {r) 'nie^ciuntlet, h. R. 3 Ad. & Ec. 388, per Sir R. PhiUinMre. FOREIGN ENLISTMENT OFFENCES. 113 the general iiitere&ts of the public weal, has prescribed, (a) The 59 Geo. 'S, c. 09, was in force hero until the pass- in"" of the former statute, and the local enactment, 28 Vic, c. 2, was passed in aid of it, though any provisions of the local statute in conllict with the Imperial Act would not prevail against the latter. (6) The local enact- ment will now be void in so far as it is repugnant to the Imp. 33 & 34 Vic, c. 90, but no Hirther. (6") The decisions under the old Act are produced here, although the writer is not prepared to pronounce that they are all applicable to the present statute, A warrant of commitment, issued under the 59 Geo. 3, c. G9, is sufficiently certain if it charges the prisoner with attempting or endeavouring to hire, retain, engage, or prevail on to enlist as a soldier, in the land or sea service, for, or under, or in aid of Abraham Lincoln, President of the United States of America, and in the service of the Federal States of America. The foregoing is also a suffi- cient description of the foreign power in the warrant ; the power being one whose existence the Court is bound to notice judicially, and the words relating i > the Federal States being rejected as surplusage. In such a warrant, it is not necessary to allege that the accused is a British subject, the law presuming him to be such until the con- trary appears. It is also unnecessary in the warrant to negative a license from Her Majesty the Queen to do the act or acts concerning which the complaint is laid, {d) A direction to the gaoler to keep the prisoner in the common gaol, " until he shall thence be discharged by due course of law, or good and sufficient sureties be received for his appearance," is sufficient — the latter («) The International L. R. 3 Ad. & Ec. 332, per Sir R. Phillimore. {f>) Ret/. V. Hherman, 17 U. C. (.J. P Cti ; Rei/' v. Sc/iram, 14 U. U. C. P. 318 (c) Sie s. 2 ; see also Imp. Stat. 28 & 29 Vic. c. 03, s. 2. (<^) Re John Umitk, 10 U. C. L. J. 247. H 114 CRIMINAL LAW OF CANADA. words being road as surplusage, or being read as good for the Magistrates having committed the prisoner lor want of bail, it would be in the discretion of the Magis- trates or Court ordering l)ail to fix the amount. "I," in the text of a warrant, may be read as "I and I,'" so as to read " given under my and my" hand and seal, etc.. it being presumed that bolh Magistrates use one and the same seal. («) A warrant of commitment recit- ing that Thaddens K. Clarke "was this day charged (not saying upon oath) before us," and without shewing any examination by the Magistrates, upon oath or other- ■wnse, into the nature of the ollence, and commanding the constables or peace officers of the County of Welland to take the said Thaddeus K. Clarke into custody, was held suthcient. (6) A warrant committing the prisoner " until discharged by due course of law," sufficiently complies with the Statute, which provides for a commit- tal until delivered by due course of law. A warrant exe- cuted by two parties, and concluding " given under our hand and seal," is sufficient, (c) A warrant of cominit- ment, reciting that F. M. was charged, on the oath of J. W., "for that he (F. M.) was this day charged with enlisting men for the United States army, offering them $350 each as bounty," without charging any offence with certainty ; without stating that the men enlisted were subjects of Her Majesty, and without shewing that J. W was unauthorized by license of Her Majesty to enlist, was held bad. {d) -. - The seventh section of this Act, for prevention of en- listing into foreign service, or the fitting out or equipping, in Her Majesty's dominions, vessels for warlike purposes, Ca) Re John Smith, 10 U. C. L. J. 247. (bj lie Clarke, 10 U. C. L. J 331. (cj lb. ; see also Re John Smith, 10 U. C. L. J. 247. (d) Re Martin, 3 U. C. P. R. 298. FOREIGN ENLISTMENT OFFENCES. 115 providos, (1) That such sliip or vossol must be acting without h\ave or hcoiiso ol" the JSoverein-n of Ihis country. (2) That sho must bo equipped, iurnishod, fitted out, or armed, or there must b(; u procuring', or an attempt or endeavour to equip, furnish, lit out, or arm the ship. (3) That such equipment, fiirnishino", fitting out, or arming, must be done with fhe intent or in order that tlio ship or vessel shall be emi)lo3'ed in the service of some " Foreign Prince, State, or Potentate, or of any Foreign Colony, Province, or part of any Province or People, or of any person or persons exercising, nr assuming to exer- cise, any powers of Government in or over any F'oreign State, Colony, Province, or part of any Province or People." (4) That there must be an intent to employ the sliip or vessel either as a transport or store ship, or with intent to cruise or commit hostilities against any Prince, State, or Potentate, or against the subjects or citizens of such Prince, etc., or the persons exercising, or assuming to exercise, the powers of Government in any Colony, Province, or part of any Province or Country, or against the inhabitants of any Foreign Colony, Pro- vince, or part of any Province or Country, (o) That such Foreign Prince, State, or Potentate, etc., is one with whom Her Majesty should not be at war. The 3rd part of the section is in the alternative, and it is not necessary that the vessel should be acting in the service of " anij person or jjersona exercising', or assuming- to exer- cise, any pouters of Government in or over any F^oreign State, Colony, Province, or part of any Province or People," // the vessel is " employed in the service of any Foreign State or People, or part of any Piovance or People." {(i) Semble also, it is sufficient if the facts bring the case within either branch of the alternative, {b) (a) Feg. v, Carlin, '•' The Salvador," L. R. 3 P. C. App. 218. (6) Jb. 110 CRIMINAL LAW OF CANADA. A commitment under the 28 Vic, c. 2, stating the ofli'iico aslbilovvH: — "For that ho on, etc., at, etc., did attempt to i)ro(;ur(i A. J». to K(!ive in a warliir too little is as bad as a jiidgmpnt for too much, and a condemnation to pay $100 and costs — the Statute imposing i$200 and costs — is bad. (/>) So a commitment lor the penalty and costs, not stating, in (ho body oi'tiie commitment, or a recital in it, the amount of costs, is bad. (r) A quccre is added to this case, whether the juri.sdiction con (erred by th«? 28 Vic, c 2, is a general or 'ocal one. But a warrant of commitment, on a con- viction had belbre a Police Magistrate lor the Town of Chatham, in Ontario, under the 28 Vic, c. 2, averring that, on a day named, " at the Town of Chatham, in said county, he, the said Andrew Smith, did attempt to pro- cure A B. to enlist to serve as a soldier m the army of the United States of America, contrary to the Statute of Canada in such case made and provided," and then pro- ceeding, " and whereas the said Andrew Smith was duly convicted of the said oH'encc before me, the said Police Magistrate, and condemned," sulHciently shews jurisdic- diction. (d) A direction to take the prisoner " to the com- mon gaol at Chatham," the warrant being addressed '' to the constables, etc, in the County of Kent, and to the keeper of the common gaol at Chatham, in the said county," is sufHcient. (e) A warrant, as a'oove set out, suiKcieiitly contains an adjudication as to the oilence, though by way of recital. The words "to enlist to (a) Re liri'/ht, 1 U. C. L. J. N. S. 240. (b\ V>. ; i^ex- V. .Solomons, 1 T. It. 249 ; Whitehead, v. Rcy. 7 Q. B. 582. (c) He Briijht, supra; hex v. UaU, Cowp. (;oininitm(Mit I'or thf lurthiir time beyond six mouths should Ix' at hiird labour, (a) Jt was also h«dd, in this caso, that tho amount ol' costs was su(Iici(Mitly iixod in the warrant of (!oinuiitnivi'/M toJJniikirk i'oai.sul-(j(UH'.rid in London. At lli<^ linn' tho ai^Tccmcjit waK made, tlui nl;l^t(!r, who was one ol' ll)'..- own<;rs ol" Iho stinini iivj:, had roasonahh; canse to bcdiove that thy tht; i-'rcnoh. In a suit I'or coiuhtnination ol'tlKi steam tu^', it was lu'ld that no lAU'Aicj'. a;^ainKt tlu; y\<:l, had been coniinitii d. (a) Semhffi, tho stcnim tni^ was not (anployed in tlit' military 01' naval service ol' i^'raiKtc (/>) It would seem that a siiip enijiloyed in the servico of aror(;i. ^ (r) The Inlernational L. It. .'J Ad k Kc. ;J'21. () Exjim-tc RivknUy, Yi L. C. K. 270. (c) lliiKH. i'v. 144. "■•^ "^ (d) lluKs. (>. 144. (e) 32& 33 Vic, c. 29, s. 136 ; see also 12 k 13 Vic, c. 9(5, 8. 1. 122 CRIMINAL LAW OF CANADA. under the earlier Statutes, but it is conceived that the later enactment is in itsell* .a sullicient authority lor the trial of these offences, and that commissions are now un- necessary. The material enquiry in eases of piracy is as to the jurisdiction ot the Admiralty Courts. The Admiralty jurisdiction of England extends over British vessels, not only when they are sailing on the high seas, but also when they are in the rivers of a foreign territory, at a place below bridges where the tide ebbs and Hows, and where great ships go, although the muni- cipal authorities of the foreign country may be entitled to concurrent jurisdiction. And all seamen, whatever their nationality, serving on board British vessels, are amenable to the provisions of liritish law. {a) An American citizen, serving on board a British ship, caused the death of another American citizen, serving on board the same ship, under circumstances amounting to manslaughter, the ship at the time being in the river Graronne, within French territory, at a place below bridges, where the tide ebbed and. flowed, and great ships w^ent: — Held that the ship was within the Admiralty jurisdiction, and that the prisoner was rightly tried and convicted at the Central Criminal Court. (6) Where, on a trial for maliciously wounding on the high seas, it was stated by three witnesses that the vessel on board which the offence was alle^-ed to have been com- mitted was a British ship, of Shields, and that she w'as sailiiig under the British Hag, but no proof was given of the register of the vessel, or of the ownership: — Held that the Court had jurisdiction over the offence — first, because the evidence was sufficient to prove that the (a) Ee;/. v. Anderson, L. II. I C. C. R. 161, :H8 L. J. (M. C.) 12; and sew Reg. V. Lopez, 1 Dears B. 1 C. C. o2r> ; Reij. v. Les'eii, 1 Bell, C. C!. 220. (b) Rtg. V. Anderton, supra; andae;; keg, v. Alien, 1 Mood. C. C. 494. PIRACY. 123 Tessel was a British A'essel ; secondly, because, even if it had appeared that the vessel was not registered, the Court would still have jurisdiction, as there is rothing in the Merchant Shipping i\ct to take away Ihat juiisdic- sion, and also by reason oi' s. 106 of the latter Act, 1854, which provides that, as regards the punishment of offences committed on board such a ship, she shall be dealt with in the same manner as if she were a recog- nised British ship, (a) The prisoner was indicted for stealing three chests of tea Irom a vessel, which sailed from London, on the high seas, when the vessel was lying off' Wampa, in China. The vessel lay twenty or thirty miles from the sea. No evidence was given of the flowing of the tide, or other- wise, where the vessel lay : — He/d, on a caso reserved, that the olfence was within the Admiralty jurisdiction. (6) "Where the sea Hows in betw^een two points of laL'd in England, a straight imaginary line being drawn from one point to the other, the Courts of common law have jurisdiction of all offences committed within that line, though it is said the Admiralty has concurrent jurisdic- tion within such Hne. (c) The great inland lakes of Canada are within the Ad- miralty jurisdiction, and by the Imp. Act 12 & 13 Vic, c. 9 J, there is authority in our Courts and Magistrates to take cognizance of an offence committed in the lakes, although in American waters, in the same manner as if committed on the high seas. The power may be ex- ercised by all Magistrates in the colony, as if the offence had been committed in the waters within the limits of the colony, and within the limits of the local jurisdiction (a) Peg. v. Sehery, L. R. 1 C. C. R. 2G4, 39 L. J. (M. C.) 183. (b) lUx V. Allen, 7 C. & P. G64 ; Biy. v. S/iarpc, 5 U. C. P. R. 138, per A, (cj lb. 139, per A. Wilson, J. ; Hex v. Bruce, R. & R. 243. 124 CRIMfNAL LAW OF C\iNADA. of thn Courts of criminal jastico of the colony; (a) for there is nothing in the Statute to give any particnhir func- tionary jurisdiction, or to maive the offence of a local nature, and, therefore, any Magistrate in the Province may a'^,t. (6) If a robbery be committed on lakes, har- bours, ports, etc., in foreign countries, the Court of Ad- miralty indisputably has jurisdiction, (c) A British Court has no jurisdiction to punish a foreigner for an oifence committed on the high seas, in a foreign ship, against a British subject, (d) The 32 & 33 Vic, c, 20, s. 9, makes provision for the trial in Canada of offences amounting to murder or manslaughter committed upon the sea. (e) . - . Customs and Exciae Offences. — These offences are now regulated by various Statutes. (/) The 31 Vic, c. G, s. 80, provides that persons committinj^ certain offences, with regard to warehoused goods, shall incur the penalties imposed on persons for smuggling. By s. 75 of the same Act, smuggling is made a misdemeanor, punishable by a penalty not. exceeding $200, or by imprisonment i^or a term not exceeding one year, or by both. An indictment wilt not lie under s, 80 for the misdemeanor created by s. 75, for the 80th section does not declare that the parties offending, etc., shall be deemed guilty of the misde- meanor created by the 75th, and the clause cannot be extended to the creation of a new crime by implication, (g") It is unnecessary to allege, in the indictment for offences against this Act, that the warehouse therein referred to is a Customs warehouse, or one duly appointed and (a J Rco. V. Shnrpe, 5 U. C. P. E. 135. ' (h) 7/*.140, per irZ/son, J. (c) It,. l;», per Wilson, J. (d) lie;/. V. Kinsman, 1 James, 62. (c) Hee also c. 21), s. 9. ( / ) See as to customs 31 Vic, cs. 5, 6, 7, 43 & 44 ; also 33 Vic. c. 9, and 34 Vic. cs. 10 and 11. ((I J Rqi. V. Bathgate, 13 L. C. J. 299. CUSTOMS OFFENCES. 125 established according to the provisions of law ; for the moaning of the word " warehouse" is clearly defined by the Customs Act, and it would be matter of proof as to whether the building alluded to comes %\ithin that defi- nition or no(. Nor is it necessary to allege that the goods had been marked and stanped in accordance with the requirements of the Act, for the security of the revenue ot Canad.i, nor that the goods had previously been duly entered for warehousing, in accordance with the provi- sions of law, nor to allege by whom the goods were kept in the warehouse, for not one of these statements is recpr"red by the Statute ; and, moreover, in official mat- ters, all things are presumed to have been properly done. An allegation that the goods were fraudulently removed implies sufficiently that they were not legally cleared from, etc. (a) On a Statute somewhat similar to the 31 Vic, c. 6, s. 91 (using, however, the words " niformation on oath shall be given"), it was held that, to justify the breakiu"- open of a bviilding, there should have been, first, a written information on oath ; and, second, the actual presence of the Justice at the breaking, so that the parties may understand the demand for admittance comes from the Justice, by virtue of his legal authority, and magisterial character. (6) The grounds for holding a written information neces- sary were: the object of the information being to autho- rize the forcible breaking of a man's house, something is required to protect the Justice if sued for the entry jointly with the officer ; and the person, whose house is broken iiito, is entitled to know distinctly what the information was on which the Justice acted ; and proper evidence is (a) Reg. V. Bathgate, supra. ' _ •'•:.:•—■ - ' -— - f «<; /fey. V. »Fa^«A, 2 Allen, 387. 126 CRIMINAL LAW OF CANADA. required of these, iiu'l also to shew that the information is nuthorized by the Act. (a) Not opening a door, after a proper demand, is a suffi- cient denial within the Act. If the breakino; open is unlavvlul, and the officer is concerned therein, he cannot justify the seizure of smug's-led goods found within the building; but if a party, not concerned in the unlawful breaking, seized the goods, the case might be diflercnt. Semble that an order to enter given to a police officer, present with the revenue officer, would be sufficient, and that he would be presumed to be acting in aid. (h) If the door be closed, and admission denied, then the Act clearly intends that the Justice should be the person to demand admittance, and to declare the purpose for which the entry is demanded. Possibly he might do this by the mouth of the officer, but it should be done in such a way as to be well understood as coming from the Justice, by virtue of his legal authority, and magisterial character, (c) An indictment for smuggling, under the (N. B.) Rev. Stat., c. 29, s. I, charged, in the several counts, (1) that the defendant unlawfully landed alcohol, subject to duty, and thereby smuggled the same ; (2) that defendant un- lawfully landed alcohol, subject to duty, without report- ing to the Treasurer, and there})y smuggled, etc.; (3) that the defendant landed the alcohol without a permit, and thereby smuggled ; (4) that the defendant landed alcohol without paying the duties : — Held (1) that the indictment was insufficient, as the mere unlawful landing of goods, without alleging any intent to defraud the revenue, did not constitute the offence of smuggling ; (2) that the landing of goods, without reporting them to the (a) Peg. v. Walsh, 2 Allen, .W. (bj lb. (c) /6. 391, per Carter, C. J. ' ^ "^-^ - . CUSTOMS OFFKNCES. 127 Trcnsnrer, or without oblaininiv a pormit, thouoh it snb- jectod tho party to a penalty, did not amount to smug'- gling- ; (3) that tho mere hindinj? of goods, witliout a pre- vious payment ol' duty, is not a breach oi' the reA^enue laws, as the duty might be secured as pointed out in the Act; and the Iburth count was bad, in not neu-ativino- the fact that the duties were secured, {a) The Colonial Legislature has power to impose addi- tional grounds of iorfeiture, lor breach of the revenue laws, on goods subject to forfeiture, under an Act ot the Imperial Parliament. (/>) In the Ally. Get//, v. Warnrr, (r) the question was raised, but not decided, whether an information would lie under the 6Gth clause of the Imp. Act 8 & Vic, c. 93, where the party informed against was a person shewn not to have transported or harboured the goods of nriolher, but his own goods, smuggled by himself, on his own account. By this Stat. 8 & 9 Vic, c. 93, gunpowder is prohibited from being imported into the Biitish possessions in America, except from the United Kingdom, or some British possession. Gunpowder coming from a foreio-n country cannot be proceeded against as a non-enumerated dutiable article under the Provincial Revenue Act, 11 Vic, c 1, for being imported into the Province, at a place not a port of entry, contrary to the Act 11 Vic, c 2, s. 21. It is liable to seizure and forieiture, under the 17th sec- tion of that Act, for being landed without entry at the Treasury, (d) Spirits in casks, less than 100 gallons, are hable to forfeitur.\ under the 11 Vic, c 67, though the vessel ]n which they were imported is over 30 tons register (e) («) Jie;/. V. Ca.mdy, 4 Allen, 623. 7 ,^i'>'\^^"'- und Mijem, 2 Allen, 493, _ . c) I U. 0. Q. B. 399. • (d) lb. (e) Atty. Genl. v. Wahh, 2 Allen, 457. 128 CRIMINAL LAW OF CANADA. In an information for the condemnation of goods as illegally imported, it is allowable, nnder a plea that they were not imported 7}ioda el fornta, to shew that the goods were landed throuiih stress of weather, {n) In an niformation, at the suit of the Crown, for goods seized at the Custom-House, there must have been a substantive allegation that the goods were imported and brought in in violation of the Custom-House regulations, and the omission of the words " against the form of the Statute" was fatal. (6) So in an informatior by the Solicitor-General, pro Regina, for a forfeiture grounded on the importation of goods into the Province without payment of duties, the omission of the words "against the form of the Statute" was held fatal, {c) The omission of these words is pro- bably cured by the 82 & 33 Vic, c. 20, s. 23. In an information for a penalty under the Customs Act, 3 & 4 VVm. 4, c. 59, for knowingly harbouring smuggled goods, the scienter is a proper question for the jury ; and in such information, the particular illegal act, as that the goods were imported M^thout payment of duties, etc., should be specified, and the informa- tion should expressly shew that the offence charged to have been committed was contrary to the form of the Statute, and saying merely that the I^'tatute gives a right to the penalty is not enough, {d) If a quantity of smuggled goods are purchased at one time, but seizures of them are made at different times, only one penalty for harbouring them can be recovered, (e) An entry at the Custom House declared that the packages contained articles not subject to duty, but some (a) Atty. Genl. v. Spafford Draper, .333. (6 Holr. Genl. v. Darling, 2 L. C. R. 20. - . , ^ ^ ^ _, (c) Holr. Genl. v. Carter, 1 L. C. R. 20. ( d) Reg. v. Auviond, 2 U. C. Q. B. 166. (e)/''. ' -- ;._. CUSTOMS OFFKNCES. 129 of them contained contraband goods : — Held that it was but one entry, and that being lalse as to some ol' the pacl^ages, the goods were not duly entered, and the whole were fori'eited under the (N. B.) 1 Rev. Stat., c. 27, 8. 10. (a) A revenue inspector, suing in the Queen's name for penalties under the 14 & 15 Vic., c. 100, is not liable for costs, because he comes within ihe ordinary common law rule, exempting the Crown from costs. (6) Under the (,N. B.) 18 Vic, c. 36, a warrant to search for liquors in a dwelling-house in which a family resides, and no part of which is used as a shop or place for the sale of liquors, cannot issue, without the oath of three persons, stating their reasons for believing that liquors have been sold, or are kept in such dwelling-house for illegnl sf le. {c) Nor can such warrant issue without such information to search for liquors in a dwelling-house in which a family resides, though there may be a shop or place in the house for the sale of liquors, [d) Proof that the house in which the liquor was seized was kept as an hotel will not justify a search warrant on the information of one person, as it cannot be judicially noticed that an hotel is a place for the sale of liquor, (e) Where liquor, legally imported, is condemned, under section 15, as being kept for illegal sale, the Justice has no power to order the casks containing the liquor to be destroyed. (/) The onus of proving that the liquor was not intended for sale, in order to save it from forfeiture, under section 15, is thrown on the owner; but to subject him to the penalty, under section 16, it must be proved that he in tended the liquor for illegal sale. (a) Beg. v. Southward, 3 Allen, 387. (b) Ex parte Hague, 3 L. C. R. 287. (c) Bey. V. Salter, 3 Allen, 321. (dj Ex parte Caldwell, 3 Allen, 393. (e) Keg. v. Salter, supra, 321. . W lb. I 130 CRIMINAL LAW OF CANADA, An information under the Act need not state that the informer is a reputable person, (a) An order made under this Act, by a Justice of the Peace, to condemn liquors, with the packages in which they are contained, is indivisible; and if bad as to the packages, cannot stand good as to the rest, though the liquor is liable to forfeiture. (6) In a proceeding under this Act, the person summoned to shew why the liquor seized should not be forfeited, has a right, })eibre going into his proof, to be informed by the Justice who the complainant is, and what he has sworn to in the information, (c) An information, stating that intoxicating liquors are kept for illegal sale by A. " in his house or shop, or on the premises where he now dwells, in the County of C." is not sufliciently certain to authorize the search of a dwelling-house imder this Act. And such an informa- tion will not justify a search warrant, stating that there was a place in the dwelling-house for the sale of liquor, (^i) A conviction under this Act must follow the form pre- scribed in the schedule, and not the form in the Summary Conviction Act. The form of conviction given stated that, in default of payment of the fine and costs of pros- ecution, the defendant should be imprisoned for three months, "unless the said several sums be sooner paid": — Held that a conviction under the Act, which, in addition to these sums, required the costs of distress and commit- ment to be paid, was bad. (e) Excise. — An indictment, under 31 Yic, c. 8, s. 143, for breaking a lock, etc., after other statements, alleged : — in which said warehouse certain goods for and in respect of faj Itefj. V. Salter, 3 Allen, 321. (6) Ex parte Breeze, 3 Allen, 390. ' ' ifc) Ex parte Sterenson, 3 Allen, .391. (dj Ex parte Caldwell, 3 Allen, 393. (c) Ex parte Breeze, 3 Allen, 395. EXCISE OFFENCES. 131 which a cr rtain duty of excise was then and there by- law imposed, were thin and there kept and secured, without the knowledge and consent of the collector of inland revenue : — Held that the redundant expression, '* wore then and there kept and secured," made the words which form the gist of the offence, "without the knowledge and consent of the collector of inland reve- nue," apply apparently not to the opening of the lock, but to the keeping and securing of ceriain goods in the warehouse, and was therefore bad. (a) The indictment need not shew the description of goods, nor that they are subject to excise, nor by whom the goods were kept and secured, nor that the goods were retained in any warehouse, under the supervision of any officer of Inland Revenue, nor that defendant opened a lock attached to a warehouse in which goods were so retained, nor that the excise duty was then and there unpaid, for all these allegations are mere surplusage. (6) It has been held that, in a prosecution for selling liquor without license, the information need not be under oath, for the Act respecting tavern-keepers (c) gives all the forms that are to be followed in such cases, and the Con. Stat. Can., c. 103, s. 24, does not apply to the case, (d) In another case, the Court refused to grant a mandamus to compel two Justices of the Peace to issue execution upon a conviction under 6 Wm. 4, c. 4, s. 2, for selling spiritu- ous liquors without license, the conviction having been founded on the written statement of the informer, and the oath of one other witness, there being a doubt under the Statute whether the information ought not also to be on oath, (e) (a) Reg. v. Eatligate, 13 L. C. J. 303. (h) lb. ; see also as to excise 31 Vic, cs. 49 and 50; 33 Vic, c 9; and 34 V" ic c l') (c)' Con. Stat. L. C, c 6. (d) Ex parte Cousine, 7 L.. C. J, 112. (e) Bey. v. McConnell, 6 U. C. Q, B. 0. S. 629. 132 CRiMiNAL LAW OF CANADA. Now, in Ontario, prosecutions for selling liquor with- •out license are to be conducted according to the practice and procedure and after the forms contained in the 32 & 33 Vic, c. 31. {aj Under s. 24 of the 32 & 33 Vic, c. 31, all informations may be without oath or affirmation as to the truth thereof, unless some particular Act or law otherwise requires. A deputy revenue inspector may validly sign a plaint or information for selling liquor without a license, (b) The proseciitor is not bound to prove that the defendant had no license, as he is not called on to prove a negative, (c) Under the 29 & 30 Vic, c.51, ss. 249 and 254, a person holding a shop license for the sale of liquors was punish- able for an olTence against law, under the latter section, for selling liquors at his shop in quantities less than a quart, {d) Where the jurisdiction of the Justices appeared on the conviction, the offence being alleged to have happened at the Town of Moncton, where it was heard and tried, and the conviction being in the form prescribed by the (N.B.) Eev. Stat., c. 138, and the place of sale spoken of at the trial appearing to be knowJi to all parties, nnd no objection having been then made that it was not within the jurisdiction of the Justices : — Held that the jurisdic- tion sufficiently appeared, though it was not shewn by positive evidence that the offence was committed within the limits of the Town of Moncton. (e) A conviction under 28 Vic, c. 22, for selling liquor with- out a license, omitted to state that defendant had been (a) See (Ont.) 32 Vic, c. 32, 8. 25. ' ' ''. lb) Reynolds and Darn ford, 7 L. C. J. 228. (c) Ex parte Parks, 3 Allen, 237 ; see post evid ; Ro Barrett, 28 U. 0. Q. B. 561, per A Wilson, J. ; Hex v. Turner, 5 M. & S. 206. id) Re;), v. Faulkner-, 20 IT. C. Q. B. 529, 3 L. C. G. 185. (e) Ex parte I) unlop 3 AHen, 281. .' • ^^ . - EXCISE OFFENCES. ' 133 convicted of selling "by retail" : — Held, on appeal to the Quarter Sessions, that the offence was not sufficiently- stated in the conviction, and it was accordingly quashed : — Held, also, that the jroper time for applying to amend the conviction, under the 29 & 30 Vic, c. 50, was at tha time it was made, and that it could not afterwards be- amended under the provisions of that Act. (a) In an appeal from a conviction for selling liquor con- trary to c. 22 of the (N.S.) Rev. Stat, the Court will allow the original summons to be amended, {b) A conviction for that one H., on, etc., " did keep his. bar-room open, and allow parties to frequent and remain in the same, contrary to law," was held clearly bad, as- shewing no offence. So a conviction for that the said H. " did sell wine, beer, and other spirituous or fermented liquors, to wit, one glass of whisky, contrary to law," was held bad for uncertainty, as not shewing whether the offence was for selling without license, or during illegal hours, {c) In a conviction under the (N. B.) 15 Vic, c. 51, which prohibits the sale of intoxicating liquors, except beer, ale, porter, and cider, it is insufficient to allege that the sale was " contrary to the Act of Assembly." The conviction should negative the exceptions in the Act. {d) The action of debt for the recovery of penalties given by this Act is a cumulative remedy, and does not take away the mode of proceeding prescribed by the Sum- mary Conviction Act, 12 Vic, c 31. (e) A conviction for selling liquors without a license s bad if it do not specify the day on which the offence was committed. (/) (a) Bird V. Brian, 3 L. C. G. GO ; see 32 and 33 Vic. c. 31, s. 68. (b) Tai/lor V. Marxhall, 2 Tliomson. 10. _ . (<■) Re. C!. .J. 1. (c) Ex parte Thompson, 7 Ij. C. J. 10. \d] Ex parte MoJey, 7 L. C. J. 1. - - - -- ■» ^ ~ (<) Kuss. Cr. 194-5 , 1 B. & Aid. 282. (e) Rex V. Crisp, supra. , . „ - - ... EXTUUTION. 143 law or under the Staiute, and the conviction of the de- fendant was therefore ordered to be annulled, {a) Offences by Persons in Office. — An indictment lies against a person who wilfully neglects or refuses to execute the duties of a public ofhce. (6) An indictment may be maintained against a deputy returning officer at an elec- tion for refusing, on the requisition of the agent of one of the candidates, to administer the oath to certain parties tendering themselves as voters, {c) But the omission of the name of the agent from such indictment will vitiate it. {d) An indictment charging a misdemeanor against a registrar and his deputy jointly, is good, if the facts establish a joint offence. A deputy is liable to be in- dicted, while the principal legally holds the office, and even after the deputy himself has been dismissed from, the office, {c) Exforlion signilies the unlawful taking by any officer^ by colour of his office, of any money or thing of value that is not due to him, or more than his due, or before it is due. (f) This offence is of the degree of misdemeanor and all persons concerned therein, if guilty at all, are principals, (g) Two or more persons may be jointly- convicted of extortion where they act together and con- cur in the demand. Where two persons sat together as magistrates, and one of them exacted a sum of money from a person charged before them with a felony, the other not dissenting, it was held that they might be jointly («) Reg. V. Mamn, 17 U. C. C. P. 534 ; sue also R. v. Stone, 4 C. & P. 379 ; R. V. Gotleti, R. & R. 84; R. v. Beat, 2 Mi.od. C ('. 125; Arch. Cr. Pldfj. 837; Marfarlanv v. Dnnxij, LO L. (J. J. 8;") ; 32 & 33 Vic, c. 21, 8. 115. [h] Ruj. V. Bcnnci, 21 U. C. C. P. 238, per GaU, J. (c) lb. Kd) lb. ■ • ■ ■ ( ) Reel. V. Bevjamin, 4 U. 0. C. P. 179. (/; Kuss. Cr. 208. {(/} Reg. V. Tisdak.20'U. (J. Q..B.27'^,l)eT Robinson, C. .y. 144! CUIMINAL LAW OF CANADA. convictod. (a) It is not necessary that the indictment fihould charg-o the defendants with having acted cor- ruptly. (6) The courts do not quash indictments for extortion, but leave the defendants to demur, (c) The Stat, of West. 3 Ed. 1, c. 26, would seem to apply here. {d). As to the fees which may be legally exacted by public officers in difll'erent cases, it is a general rule that when a duty is cast upon any one by Act of Parliament, and no remuneration is provided for doing it, the party is to perform the duty without remunoration. {e) A clerk of the peace is an officer serving the Crown, and appointed to discharge public duties, and he cannot charge fees for any service for the remuneration of which no provision is made by Statute or otherwise expressly assigned to him by law ; (/) for it is a maxim of law that no fee can be demanded for services rendered in the adminis- tration of justice, except such as can be shown to have a clear legal origin, either as being specifically allowed in some Act of Parliament, or as being sanctioned by some court or officer that has been permitted by ancient usage to award a fee for the service, (g-) All new offices erected with new fees, or old offices with new fees, are within the Stat. 34 Ed. 1, for that is tallage upon the subject, which cannot be done without common assent by Act of Parliament. (Ji) A clerk of the peace is not entitled to any fee from the parties to a (a) Reg. v. Tisdah, 20 U. C. Q. B. 273, per Robinson, C. J. (h, Ih. (c) lb. 272, per Robinson, C. J. ; and see Rex v. Wadsworth, 5 Mod. 13. (d) See Askin v. London District Council, 1 U. C. Q,. B. 21)2, (c) lb. 295, per Robinson, C. J. ; Graham v. Grill, 2 M. & 8. 295. (/) Askin V. London Dis. Council, 1 U. 0. Q. B 292. (q) Hooker v. Gurnett, IG U. C Q. B. 183, per Robinson, C. J. ; Price v. Perceval, S. L. C. A. 189 ; the London S. V. A. K. 140. (h) The London a. V. A. R. 140. ■ - EXTORTION. 145 causo I'ov strikinn' a special .Iiuy. (a) The taMo oi' l(M's ('fstal)lishi'(l iuid piomuluiitcd hy the Courts, contains all the sorvici's lor which ('Icrks of tlio jn'sice arc entitled to chara'o, except that th^'y ar(» entitled to lees in all cases Avhere such I'ees are authorized l)y Act of T*arlia- inent; Imt no local tarill" or user in particular counties can <2-ivo any additioiud riu'ht. {!>) Tn Ke BfirnlKirt \. Ji/sfifcs' Home Disfricf (c), a mun di/mtfs was moved lor to coni]>el the justices of the peace to make an order ui)on their treasurer to ])ay to IJarn- hart, th(^ late naoler, several sums ol" money which he claimed, lirst, for the expense ol' a guard jirovided by him to prevent the escai)e ol" i)risoners, rendered neces- sary, as he said, l)y the insulliciency oi' the o-aol ; secojid. for expenses defrayed ])y him in retakinu' i)risoners w^ho had escaped from the gaol. The mnndafUHs was refused, as a mandamus never issvies except to admit or restore a person to an ascertained right, and the law makes no provision for these charges, l)ut they rest in the discre- tion of the justices. It w^ould be illegal, as manifestly contrary to duty, us well as pu1)lic policy, in a judge to take from the party in w^hose favour he purposes to decide an undertaking, to indemnify him against all the consequences of his de- cision, {(l) A conviction against a bailiff for exacting more than his legal fees was quashed, on the ground that the magistrate permitted an amendment in the informa- tion, and because no precise date of the offence was given, {e) The fees of office and taxes payable to the (a) Hooker r. Gurnelt, IG IT. C. Q. B. 180. (b) lie Dartucll, 2tJ U. C (i. B. 430. See as to auditing accounts of the Clerk of the Peace, Re Pous.tett and Corpoi'ation, Lambton, 22 U. C. Q. B. 80. ((•) 5 U. (.'. Q. B. O. H. 507. ((/) Ballard v. Pope, 3 U. C. Q. B. 320, per Robinson, C. J. (ej Ex parte Smith, L. C. 11. 488. - - - - ■ 146 CRIMINAL LAW OF CANADA. clerk of appeals, Queen's Bench, belong to, and form part of, the revenue of the Crown, [a) Sale of Offices. — It would, seem that an indictment or information lies at common law for the sale of a public office, on the ground that public policy requires that there should be no money consideration for the appoint- ment to any office in which the public are interested, and that the public will be better served by having per- sons best qualified to fill offices appointed to them ; and if money may be given to those who appoint, or through whom an office may be obtained, it would be a tempta- tion to appoint improper persons, (b) The office of sheriff is an office concerning the adminis- tration or execution of public justice, and the sale of it is illegal. The defendant agreed with R., then sheriff of the county of Norfolk, to give him <£500, and an annuity of i)300 a year, if he would resign. R. accordingly placed his resignation in defendant's hands. The £oOO was paid, and certain lands conveyed to secure the an- nuity ; and it was further agreed that in the event of the resignation being returned, and R. continuing to hold the office, the money should be repaid, and the land re- conveyed. But R. did not undertake in any vv^ay to assist in procuring the appointment for the defendant. The latter having been appointed by the Government in ignorance of the agreement, an information was filed against him : — Held that this was an illegal transaction, as being, in fact, a purchase of the office, w^ithin the 5 & 6 Ed. 6, c. 16, and ihat an information might be sustained under this Act as for a misdemeanor ; but, at all events, if not sustainable under this Act, the British Act 49 Geo. 3, c. 126, clearly applied in this Province, and made it a {a) Reg. v. Holt, 13 L. C. R. 306. (6) Reg. v. Mercer, 17 U. C. Q. B. 625, per McLean, J. ; and see Rusb, Cr.. 214; Rex v. Vaughan, 4 Biirr., 2494 ; Rex v. PoWma»i, 2 Camp. 229. SALE OF OFFICES. 147 misdemeanor, (a) The igjiorance of the Government as to the illegal agreement was immaterial. (6) In another case, a sheriff agreed with one O. to give the latter all the fees of his ofhce, except for certain ser- vices specified, in consideration of which 0. was to pay him £300 a year quarterly in advance, not out of the fees, but absolutely and without reference to their amount • — Held that this was a sale of the deputation of the office, and w^as clearly prohibited by the 5 & 6 Ed. 6, c. 16, and 49 Geo. 3, c. 126, and that the effect of it was to forfeit the office upon conviction under a proceeding by scire facias, (c) But if the defendant in this case had agreed to pay his deputy a certain sum of money annually for acting as his dej)uty, either in regard to all his minis- terial duties, or a part of them, or had agreed to give him a certain portion of the fees, or to take from him a certain portion of the fees, or a ertain fixed sum annu- ally out of the fees, he would not have brc aght himself withm the Statute, or done anythhig illegal, (d) The 49 Geo. 3, c. 126, expressly extends the 5 & 6 Ed. 6, c. 16, to the Colonies ; at least such portions of it as are in their nature applicable, (e) The former Statute ex- pressly extends the 5 tfe 6 Ed. 6, c. 16, to the office of Sheriff: and any act done in contravention of the latter Statute is indictable, though not expressly made so. (/) An agreement whereby, after reciting that A. had car- ried on the business of a law stationer at G., and had aho been sub-distributor of stamps, collector of assessed taxes, etc., there, and that he had agreed with B. for the sale of the said business, and of all his goodwill and interest la) Reg. v. Mercer, 17 U. C. Q. B. 602. (6) 'u, Ic) lieg. V. Moodie, 20 U. C. Q. B. :}89. (d) lb. 402, per liobimon, C. .J ; see also Foott v. Bullock, 4 U. C. Q. B. 480 («) Reg. V. Mercer, 17 U. C. Q. B. 002. 148 CRIMINAL LAW OF CANADA. thcroin, to him, ibr tho mum of .£.^00. A., in consideration of tho said sum of X800, iigixMHl to .sell, and 1j. aiirc(;d to purchase, the said Ixisiness of a hxw stationer at (Jr. ; and whereby it was further agreed that A. should not, at any time, after the first of March then next, carry on the business of a hiw stationer at (jr., or within ten miles thereof, or co//er/, any of the assi^'^sed tax(»s, but would use his utmost endeavours to introduce B. to the said business and offices, is illegal and void, as being' a con- tract for the sale of an olfice within the 5 & Ed. 0, c. 10, and also within the 49 Geo 8, c. 120, which makes the offences prohi]>ited by the former Statute misdemeanors. (r/) An arrangement by a clerk oi' the Crown to resign his office in favor of his son, on condition of sharing the reveniies and emoluments of the office, is illegal and void, (h) The Quarter Sessions is a competent tribunal to hear and determinii a charge, under 1 "W". & M., c. 21, s. 0, against a clerk of the peace for having " misdemeaned himself in the execution of his onic(\" And when the Quarter Sessions have determined the charge, this Court cannot question the propriety of their decision, (c) A Court of Justic(5 has power to remove its officers, if unfit to bo trusted with a ju'ofessional sfoliis and charac- ter. If an advocate, for example, were found guilty of crime, there is no dou)>t the Court would remove him. (jl) And a criminal information will lie against an officer who misconducts himself in the execution of his office. But such an information will never be granted against a Judge, unless the Court sees plainly that dishonest op- (rt) Hopkins v. Prexmtt, 4 ('. B. 578 ; and seo Jtefj. v. Charrelie, 13 Q, B. 447. {h} IMisloiiiil DiUkIi; Hoi). l)i^'. Hit. ((■) Wihhx V. A'//.w»//, L. \i. 1, ('. 1'. 722. \d) ll« Wallace, L. Jl. 1, P. C. App. 295, per Lord Westhury. MISCONDUCT I5Y OFFICERS. 149 pressivo, ^ iiulictive or corrupt motivos, infhioiicod the mind, and j)rompt(3d the act complained against, (a) (Jn an a])plication toiilc a criminal inlbrmation aiiainst a Division Court .Tudj^c, ibr his conduct in imposing- a line, for contempt, upon a barrister emi)loyed to conduct a cas(3 ))elbre him : — llcJd that, even it his conduct were erroneously treated by the Judgi^ as contem[)tuous, and, consequently, the {idjudication ol' contempt would, on a lull and deliberate examination, be Ibuud incorrect, this would allbrd no gTound whatever lor a crimiiud informa- tion, {b) It has I)ee]i (juestioned whether a criminal inl'ormation is proper in the case olaJudge ol'an inferior court of civil jurisdiction in relation to a matter over which he has exclusive jurisdiction, (c) in -/•Vt,'-. v. lujfd (d)^ an application was made for leave to lile a (jul Unn inlbrniation ag-ainst a Judge of a liecorder's Court, upon tin; grounds that he had iidsilied the records of the Court, and maliciously condemned applicant as guilty of felony, upon the; verdict ol' his peers, when, as alleged, no verdict whatever was found by the jury. The i'acts to supi)ort the application were, that the jury came into Court to render th(Mr ver- dict, aiul the foreman pronounced a verdict of guilty. The counsel of tin; accused then personally (juestioned some of the Jury as to the groun«ls of their verdict, when one of them said that he did not coiunir in the verdict. The attention of tlu; Court was not drawn to this dissent, nor did it a])p(3ar that tlu-y were aware of it. A verdict of guilty was recorded by the presidinu' Judge, and when ibrmally read lo ilie jury by .th(> . V. O. J5. .S7(j (c) ll>. {(i) liV. ('. ('. 1'. 'JO',1. l.')0 CRIMINAL LAW OF CANADA. the .Tudg'e was actuated by any improper motives, and alleged that ho was throughout desirous of doing his duty in a lair and impartial manner, without bias or affection for or towards any person or persons whomsoever. The affidavits further shewed that the Judge was not aware of what passed between the counsel of the accused and the jury, nor had he any information that the jury had rot agreed, or the least intimation that there was any dissentient among them. The information was refused. An attachment has been granted against Commissioners of a Court of Requests, for trying a cause in which they were interested, (a) And where a Magistrate acts in his office with a partial, malicious, or corrupt motive, he is guilty of a misdemeanor, and may be proceeded against by indictment or criminal information in the Queen's Bench. (6) It is a well-established maxim of law that no one shall be a judge in his own cause, and the general rule applic- able to judicial proceedings is, that the judgment of an interested judge is voidable, and liable to be set aside by prohibition, error, or appeal, as the case may be. (c) In cases of necessity, however, where all the Judges having exclusive jurisdiction over the subject matter happen to be interested, the objection cannot prevail. And the objection does not apply to a party claiming the protec- tion of an Act of Parliament, though he is a necessary party to its passing, as the G-overnor of a Colony, there being no analogy between judicial and legislative pro- ceedings in this respect, {d) A direct pecuniary interest in the matter in dispute disqualifies any person from acting as a Judge in such (a) Rex V. M'Intyre Taiilor, 22. (bi Ihirns Jus., vol, iii. 1+1-5, 13 ecln. (r) Phillips V. Eim, L. R. 0, Q. B. 22, per Willes, J. (d) lb. 22, per SVillcs, J. OFFICERS INTERESTED. - 151 matter, (a) The interest, however, which disqualifies at common law must be direct and certain, not remote or contingent, (h) The mere possibility of bias in favour of one of the parties does not iiw> facto avoid the Justice's decision; in order to have that effect, the bias must be shewn at least to be real. The Corporation of B. were the owners of water- works, and were empowered by Statute to take the waters of cer- tain streams, without permission of the mill-owners, on obtaining a certificate of Justices that a certain reservoir was completed of a given capacity, and filled with water. An application was made to Justices accordingly, which w^as oj^posed by mill-owners ; but, after due enquiry, the Justices granted the certificate. Two of the Justices were trustees of a hospital and friendly society respec- tively, each of which had lent money to the society on bonds, charging the corporate funds. Neither of the Justices could, by any possibility, have any pecuniary interest in these bonds ; but the security of their cestui que trusts would be improved by anything improving the borough fund, and the granting of the certificate would indirectly produce that efiect, as increasing the value of the water- works. There was no ground to doubt that the Justices had acted bona fide : — Held that the Justices were not disqualified from acting in the granting of the certificate, and the Court refused a certiorari for the pur- pose of quashing it. (c) But if a Judge is it-ally biassed in favour ol one of the parties, it would be very wrong in him to act, and seems the Court would interpose in such case, {d) (a) Reg. v. Rand. L. R. I Q. B. 232, per Blackburn, J. (6) Re(,. V. M. S. d- L. Ry. Co., L. K. 2 Q. B. 339, per MeUor, J. (c) Reg. V. Rand, L. R. 1 Q. B. 230. (d) lb. 233, per Blackburn, J. loi CFUMINAL LAW OF CANADA. It seems no objection to a Justice thiit he is remotely connected with oin^ of tlie parties, so long as there is no consangiunity or aHiiiity. (a) If a person assault a Justice, the latter micht, at the time of the assault, order him into custody; but when the act is over, and tim(^ intervenes, so that there is no pres- ent disturbance, it becomes, liive any other offence, a matter to be dealt Avith upon i)i'()])er complaint, upon oath, to some o^/;e/* Justice, who nuiiht issue his warrant; for neither a magistrate nor a constable is allowed to act officially in his own case, iixcoi^t Jlagrante del iclu, while there is otherwise danger of escape, or to suppress an actual disturbance, and enforce the law while it is in the act of beinu' resisted, [b) Munopolii. — A by-law passed under 31 Yic, c. 80, s. 44, for exinnpting I'rom taxation any person commencing any ne^v manufacture of the nature contemplated by the section, and employinn- therein more than $1,000, and paying to o])erators more than !5--)0 weekly, was held bad, ibr exempting ni'w manufactures in preference to old-establish(Hl business, and for exempting only those persons doing a specilied amount of bv.siness. (c) The giving fo one person of a trade a beneiit which another of the same trade does not get also, is t monoi)oly of the worst descrii)tion ; id) and a by-law pa ,sed for s Ach a pur- pose would be void. Rules in restraint of trade are r-ot criminal, though they may be void as au-ainst ])ublii; policy, (e) Nor arc strikes necessarily illegal, a)id their legality or illegality must depend on the means by which they are enforced. ((•() A'.'/. V. . Hi'ih Wnr. II. 1 C C. I'v. 230, 39 L. J. [W. ('.) h\. MONOPOLY. 15S and upon thoir objoct.s. They may be criminal, if part of a combination for the purpose of injuring- or molesting- eith(n- masters or men, or they may be simply illegal, as when they are the result of an arrangement depriving those engaged therehi of the liberty of action. («) " The Trade Unions Act, 187'2," declares that the pur- poses of any Trade Ibiion shall not, ])y reason merely that they are in restraint of trade, be deemed to be un- lawful, so as to render any member of such Trade Union liable to a criminal i)rosecution for conspiracy, or other- wise. By an Act of Ihe last session of the Dommion Parlia- ment, every ]">erson who uses violence to any person, or any property, or threatens or intimidates any person in such a manner as would justify a Justice of the Peace, on complaint made to him, to l)ijid over the person so threat- ening or intimidating to keep the peace, or who "molests" or " obstructs" any person in manner defined by the Act> with a view to coerce such person — being a master, to dismiss or cease to emi)loy any wovkman ; or, being a workman, to (piit any employment, or return work before it is iinished ; being a master, not to oiler, or, beinu" a workman, not to accept, any employment or work; being a master or workman, to belong to, or not to belong to, any tem])orary or permanent association or com})ination; being a master or workman, to pay any line or penalty imposed by any temporary or permanent association or combination ; being a nnister, to alter the mode of carry- ing on his business, or the ni\ml.>er or description of any persons employed by him — shall be guilty of an ollence against the Act, and shall i>«' liable to imprisonment, with or without hard labour, for a term not exceeding three months. (a) Farrvr v. Cloic, \j. U. 4 (^ li. (Jl:.', pur Hannen, J. ; Illliun \. Eckersti/ & li. 47. 154 CRIMINAL LAW OF CANADA. Any person shall, for the purposes of this Act. be deemed to molest or obstruct another person in any of the following cases : — that is to say (1) If he persist«Mitly follows such other person about from place to place ; (2) If h(; hides any tools, clothes, or other property owned or used by such other person, or deprives him of, or hinders him in the use thereof; (3) If he watches or besets the house or place where such other person resides, or works, or carries on business, or happens to be, or the approach to such house or place, or if with two or more other per- sons he follows such other person, in a disorderly manner, in or through any street or road. By the 32 & 33 Vic, c. 20, s. 42, assaults in pursuance of any unlawful combination or conspiracy to raise the rate of wages, are punishable as misdemeanors. These Statutes, in a great measure, assimilate the law as to trades unions and strikes to that existing in Yjng- land. Several cases have been decided in England, which may assist in the construction of the Canadian Statutes, (rt) A by-law of Frederickton, to regulate the public market, required the stalls in the market to be leased annually, and declared that the lessee of a stall should receive from the Mayor a license to occupy, and that any person occupying without license should be liable to a penalty: — Held, in a prosecution for the penalty, that the only question was, whether the defendant had a license, (b) Champerty and Maintenance. — The offence of champerty (a) See Reg. v. Bykerdike, 1 M. & Uoh, 179 ; Reg. v. Roidavds, 2 Den. 364, 17 Q. B. C71; Rer;. v. Duffield, 5 Cox, 404; Wafsby v. An'ei/, 30 L. J. (M. C.) 121; O'Neill, v. Lon>man, 4 B. & S. 370; O'Neill v. Krm/er, 4 B. &. S. 389; Rei/. V. Druitt, 10 Cox, 592, 601-2 ; Reg. v. Shepherd, 11 Cox. 32.5 ; Reg. v. Selsby, 5 Cox, C. C. 495 ; Hilton v. Eckersly, 6 E. & B. 47-53; 24 L. J. Q. B. 353; Hornby v Close, L. R. 2 Q. B., 153 ; Reg. v. Hunt, 8 C. & P. 642 ; Reg. v. Hewit, 5 Cox, C. C. 162. (b) Ex parte MilUgan, 2 Allen, 583 ; see as to forestalling, Wilson v. Corpora- tion, St. Catherines, 21 U. C. C. P. 462. CHAMPERTY AND MAINTKNANCK. 155 is (leiined in the old })ooks to be the unlaw iul mainten- ance of a suit, in consideration of" some bargain to have part of the thing in dispute, or some profit out of it. (a) The object of the law is not so much t«» prevent the purchase or assignment of a matter in litigation, as the purchase or assignment of a matter in litigation, with the object of maintaining and taking part in the litigation, (b) All the cases of champerty and maintenance are founded on the principle that no encouragement should be given to litigation by the introduction of parties to enforce those rights which others are not disposed t^t enforc(\ (c) The principles of the law of maintenance are recog- nized and adhered to in the modern cases, (d) But the general doctrines of the law are largely modified, and restrained in their operation to cases where there is dan- ger of oppression or abuse ; (e) or where a man impro- perly, and for the purpose of stirring up litigation or strife, or of profiting by it, encourages others to bring actions, or make defences, which they have no right to make, (f) Champerty is punishable at common law^ (g) It seems the Crown is bound by the law on this subject. In Smyth V. M' Donald, ih) it w^as held that the Crown must first (;ject the occupant before selling land of which it is not in possession ; and that neither the 82 Hy. 8, c. 9, nor the ordinary principles of the common law, allowed the conveyance of such land by the Crown, (i) The plaintiff having recovered judgment against B. & («) Carr v. Tannnhill, 30 U. V. Q. IV 22.3, per Mnrrhnn, J. ; Kerr v. Brnn- ion 24 U. C. Q. B. .)'.«, per Hat/nrti/, J.; Slonlci) v. Jones, 7 Bing, 309. (h) Carr v. Tannnhill, mipra, '223, per ^furrilion, .1. \c) lb. 224, ])er Morrison, J. ; Prosscr v. Edmonds, 1 Y. & C. 497. (rf) Carr v. Tannahill, siijtrn. 227, per Morrison, J. (c) Allan V. M'HeJJhj, I Oldriyht, 121, per Youmi, C. J. (/) lb. 122, per Yomut, C J. (g) Seott V. Henderson, 2 'rh(jroscii, 116, per Haliburton, C. J. {h) 1 Oldri^'ht. 274 (t) And B^ii Scott V. Henderson, supra, 116 per Haliburton, C. J. 1'., ii«rrc('(l willi the (l('f(')i(linil that, il' hiiu-h judiirncTit, or any porli'tii <•(' il. shoiiM Ix- i-<'iili/(Ml IVorn properly lo ho pointed oiil hy him, the (leleiMhini should have oiK'-lhird of tin- aiiioiml soicali/ed. The aLjri'errM'iil I'mlher i)ro- \i(h'(| llial "all cosls thai jriav he iiieiined in eiidea\'(mr- ill'j- lo liials'e the (rionev lo he payahle })y Jiiril ''the dejell- (leni), il" iinsiieeessriil, and llie ajnount ol" siieh cokIh to he Ihe lirst ehaf'jc on anv j»roeeeds, the )iet halanfM- lo ho divided." (loods pointed out hy the defendant ha\-ini^ ))een sei/i'f|. nuder the plaintiir's execution, \vei'(! claimed, and, on an int<'i|)leadei' issue, wore found to he tho (dairnaiit's. The plaintills thereupon sued d(deii(hint upon llie aL;r<'<'m<'iit lor their cfists ol' defeiKU! in tho iulerpjeiider, ete.., which they had heen eompidh'd to ])ay: — J/f/tf that such a'jieemeiil, il' not (diamperty, wns illenal, as heiic^- opposed to puhlic policy, and the duo udminislralion ol" justice. («) A\'}ie||iei- or no lhei<' must hr; a, suit ))endin'4' lo cou- stilute maintenance oiit anv |)rop<'rty, nor was it hi.idinu!" on the |)lainlifr to hriii'^- an\suit. '^I'Ih' (V)urt did not actually def;ido that the arereemeiit ainounled to maintenance, in its strict sense, l)ut held that, at all events, il was a, yreat misdo- rrifNinoi' in the natuic of the thinti', Jiiid iililHH, IH vr'H. \'Z7t. (r) 7 !•:. IfL Ji. .^H. (JllAMI'i:i!TV AM) MAINTKNANCK. |->7 and irltlr.nrr. us would nisiiri' I lit- ircuvciy ol' I he |»i()- pciiy ; mid Lord ('mii/ihr// rliiirjicicri/cK IIiIh us " iiiiiin- toiiiiiKM' ill il.s worKJ. iiKpccI," nlllioiinli un piocfcdiu^- vviis actUidly cuiiiiuciicrd oi' pi-udiuM-. 'J'lif |»liiiiitills li;i\ iiiL;' lilcd !i l)i|j lor s|)('<'ilic pi-iToriii- ailC«^ ol' ;i fOlihil';! I»y OIH- I!, to sell ;i ccrhiDi inilK' io ihulll, it VVJIS M^l'ccd ix'lUfcil tlif |)l;illiti|ls ;iii(l 'I'.. «>ll(' ol' tlitj now (It'l'i'iidiUits, vvliijc Mich suil Wiis pciidiiiL;;, lli;il coriiiiii persons sliouid imicjiusr s;iid niim- Troiii iIp- j)iiii)ilills ; lliiil, llicy should di'posit ihi' money )f(|uii<'d I'or st'cui'ily Tor (-(jsls which the phiinl.ills hud hrcn oi'- dcrcd to 'ji\t! in N;iid suit, iind |i;iy ;dl c()sls in on the lusi-lliejltjolied (MU'enant, : — //rh/ upon deinurrer to :i l)le;i setljnn' out, the t.r!Uisiiclio)i Ihiit, tiie iiL;;reemenl wiis void lor cii!i,mp<'rly and iniiintemuice. (a) llui, the a^re(;meni (A'T. 1,0 ))urchas(j IIkj miiu!, though then in litiuiition, \v;is not lU'cess.u'ily illegal, (h) The ;ii^ii\ (d) ; or il" Im thci had a («) Cirr V. 7'ann'iJn/f, ",0 U. C. Q. P.. 217. ('>) S. (•..il U. (J. il. 15. 20'.), p,:r \ViJ.v,n, .]. ; Ifornnr/lon v. Lonf/, 2 M. .t K. ••j'JIj. (r.) (Jarr v. Tannakill, \\\ U. (.;. il J J. 20',l, iiur WiUna, .J. ; llu.idv.r v. iJaiiivJ, '♦ Hari', 1151. ('i; Jh., 420-i:W. 158 CRIMINAL LAW OF CANADA. claim which he believed gave him an interest in the property, (a) A sharing in the profits derived from the success of the suit is essential to constitute champerty. (6) The plaintiff agreed with a solicitor to give him a portion of the profits arising from the successful prosecution of a suit to establish his right to certain coal mines, upon being indemnified against the costs of the proceedings : — Held that the contract amounted to champerty and maintenance, (c) After verdict and before judgment, a plaintiff in eject- ment assigned the subject matter of the suit to his attor- ney, as a security for money advanced by the attorney in carrying on the suit, and for other purposes, and for the amount due to him for his professional services : — Held, affirming the judgment of the Queen's Bench, that the assignment was not void as against public policy, or by reason of any of the statutes against champerty and maintenance [d) ; for the contract was confined to the payment of a debt already due for costs subject to taxa- tion ; and, therefore, the attorney got nothing but a se- curity for a just debt. A conveyance, whether voluntary, or for valuable con- sideration of property which the grantor has previously conveyed by deed, voidable in equity, is not void on the ground of champerty, (e) An agreement by a share- holder in a company which is being compulsorily wound up, that, in consideration of a pecuniary equivalent, he will support the claim of a creditor, comes withia the (a) Findon v. Parker, 11 M & W. 675 ; Carr v. Tannahill, supra, 210, per A. Wilson, J. (6) Hartley v. Russell, 2 S. & St. 244-252 ; Carr v. Tannahill, supra, 210, per Wilson, J. ic) Hilton V. Woods, L. R. 4, Eq. 432. d) Anderson v. RadcUiro.. 7 U. C. L. J. 23 (ex Chr.) E. B. & E. 806-819. e) Dickenson v. Burrell, L. R. 1 Eq. 337. CHAMPERTY AND MAINTENANCE. 15^ rule of law against maintenance, because it is to uphold a claim to the disturbance of common right, (a) The 32 Hy. 8, c. 9, as to selling pretended titles, is in force here, (h) The intention of this statute and the- ground of the principle of the common law, which is said to be fully in accordance with it, was that a person claiming a right which he knew to be disputed, should not sell a mere law suit, but should first reduce the right to possession and then sell, (c) A person cannot be con- victed on this Statute merely upon his own admission th:.t he has taken a deed from a party out of possession. Some evidence aliunde must be adduced of the existence of such deed, (d) Buying an equity of redemption in a mortgaged property, of which the person selling has been out of possession for many years, is not buying a disputed title within the Statute, (e) In Ontario, by the Con. Stat. U. C. c. 90, s. 5, the 32 Hy. 8, c. 9, is to some extent repealed, and a person selling a right of entry is protected from the penalties imposed by the 32 Hy. 8, c. 9 ; for he can no longer be looked upon as selling a pretended right, when the law allows such right to be the subject of legal conveyance, (f) But it would seem that the Statute is only repealed to the extent of permitting a man to sell and convey a right of entry which is actually subsisting in himself, and that the sale of a pretended right which does not in fact exist is still within the Statute, (g-) The (Ont.) 35 Vic, c. 12, renders choses in action as- a) Elliott V. Richardsm, L. R. 5 C. P. 748, per Willcs, J. 6) Ante p. 20. c) Rois, q. t. V. Meyers, 9 U. C. Q. B. 288, per Robinson, C. J. d) Aubrey q. t. v. i>mith, 7 U. C. Q. B. 213. e) M'Kenzie v. Miller, 6 U. C. Q. B. O. S. 459. /) Baby q. t. T. Watson, 13 U. C. Q. B. 631. ig) lb. 160 CRIMINAL LAW OF CANADA, signable at law. This enactment conflicts in principle with the .32IIy. 8, c. 9. ; Biij^am//. — It wonld seenj. from the express language of the 32 & 33 Yic, c. 20, s. 58, that it only applies to the case of a secouf I raavriage, and that the ofl'ence of polygamy, in its ordinary acceptation, is not compre- hended within its provisions. Assuming that under this Statute a person guilty of polygamy cannot relieve him- self from the penalties attaching to bigamy, it may be a question, in the event of a plurality of marriages, to which of them proof should be directed ; whether any two of them, or the first and second, or all. The 4 Ed. G, Stat. 3, c. 5, and 1 .lac. I, c 11, may per- haps apply here, except in so far as they are superseded by the Colonial Act. On trials for bigamy, the guilt or innocence of the defendant depends upon the legality of the first marriage ; and before the jury can convict him they must clearly see that a prior legal marriage has in fact taken place (rt) It seems that i f the marriage is voidable merely, it will suffice to constitute bigamy, {h) It has been held that though the second marriage would have been void, as for consanguinity or the like, the de- fendant is guilty of bigamy, (c) But the majority of the Judges of the Irish Court of Criminal Appeal have held that to constitute the offence of bigamy, the second mar- riage must be one which, but for the existence of the previous marriage, would have been a valid marriage. ("^ This doctrine has been very materially modified in a late case, (e) It is there laid down that it is the appearing to (a) Brenlai v. Breakei/, 2 U. G. Q. B. 363, per Eobinsnn, C. J. (/() Jt V. Jacobs, 2 Mood, C. C. 140 ; Arch. Cr. Pldg. 886. (r) llc;i. V. Bruwn, 1 C. & K. 144. (d) Baj. V. Faim ing, 10 Cox, 411 ; see also Reg. v. Clarke, ib. 474 ; Arch. Cr. Pldg, 887. (e) Reg. v. Allen, infra. BIGAMY. 161 contract a second marriage, and the going through the ceremony which constitutes the crime of bigamy, (a) "Where a person already bound by an existing mar- riage, goes through a form of marriage known to and recognized by the law as capahle of producing a valid marriage, for the purpose of a pretended and fictitious marriage, such person is guilty of bigamy, notwithstand- ing any special circumstances which, independently of the bigamous character of the marriage, may constitute a legal disability in the parties, or make the form of mar- riage resorted to inapplicable to their particular case. The prisoner, having a wife living, went through the ceremony of marriage with another woman, who was within the prohibited degrees of consanguinity, so that the second marriage, even if not bigamous, would have been void under the 5 & 6 Wm. 4, c. 54, s. 2 : — He/d that the prisoner was guilty of bigamy, (b) The material enquiry, therefore, in cases of bigamy, is as to the validity of the alleged marriages, and the evi- dence by which such validity may be established. Under the Con. Stat. U. C. c. 32, s, 6, a copy of an ex- tract from the register of the marriage produced from the proper custody, if signed and certified in compliance with this clause, is sufficient evidence of the marriage, provided some proof, either direct or presumptive, be given of the identity of the parties, (c) Evidence of reputation, or the presumption of mar- riage, arising from long cohablcatio]!, will not suffice on indictments for bigamy, but there must be proof of a mar- riage in fact, such as the court can judicially hold to be (rt) See Reg. v. Brawn, supra, 144, per Ld Dmman ; Reg. v. Penson, 5 C. & P. 412. (6) Reg. v. Alien, L. R. 1, C. C. R. 367 ; Rec/. v. Fanning, supra, disapproved. (c) Re Hairs Estate, 22 L. J. (Ch.) 177 ; Re Porter's Trusts, 25 L. J. (Ch.) 688; Arch. Cr. Pldg. 884. K • _._; 162 CRIMINAL LAW OP CANADA. valid, (a) The admission of the first marriage by the prisoner, unsupported by other testimony, is sufficient to suppovt a conviction for bigamy (h) The prisoner's ad- mission of a prior marriage is evidence that it was law- fully solemnized, (c) The first wife is not admissable as a witness to prove that her marriage with the prisoner was invalid {d) ; and she cannot be allowed to give evi- dence either for or against the prisoner, (e) But, after proof of the first marriage, the second wife may be a witness ; (/) for then it appears that she is not the legal wife of the prisoner, (g-^ ■ On an indictment for bigamy, the witness called to prove the first marriage swore that it was solemnized by a Justice of the Peace, in the State of New York, who had power to marry; but this witness was not a lawyer or inhabitant of the United States, and did not state how the authority was derived, as by written law or other- wise Although the Court, in their individual capacity, knew that Justices of the Peace had such power in the State of New York, and that the evidence given was correct, yet they held it insufficient (/t) Where the prisoner relies on the first wife's lengthened absence, and his ignorance of her being alive, he must shew enquiries made, and that he had reason to believe her dead, or, ai least, could not ascertain where she was, or that she was living, more especially where he has (rt) Reg. V. Smith, 14 U, C, Q. B. 567-8, per Robinson,, C. J. ; Breakey v. Breakei/, 2 U. l!. Q. B. 353, per Robinson, C. J,; and see Doe Dem, Wheelet' v. M'WiUinms, 3 U. C. Q. B. Iti5. lb) Reg. v. Creamer, 10 L. C. R. 404. (c) R. V. Newton, 2 M. & Rob, 503 ; R. v. Simmonsto, 1 C. & K. 164 ; Arch. Or. Pldg. 885. id) Meg. v. Madden, 14 U. C. Q. B 588 ; 3 U. C. L. J. 106 ; Reo. v. Tubbee, 1 IJ. C. P. R. 103, per Macaulay, C. J. (e) Reg. v. Bienvenu, 15 L. C J. 141. (/) Reg. V. Tubbee, supra, 98. {g) Reg. v. Madden, supra, 3 U. C. L. J., 106, per Robinson, C. J. (A) Reg. v. Smith, 14 U. 0. Q. B. 565. BIGAMY. 16^ deserted her, and this notwithstanding that the first wife has married again, {a) Upon a trial for bigamy, when it is proved that the prisoner and his first wife have Hved apart for the seven years preceding the second marriage, it is incnmbert on the prosecution to shew that during that time he was^ aware of her existence ; and, in the absence of such proofs the prisoner is entitled to an acquittal, (h) The ground of the decision in this case was, that the prisoner should not be called upon to prove a negative, (c) On an indictment for bigamy, it is incumbent on the prosecution to prove to the satisfaction of the jury that the husband or wife, as the case may be, was alive at the date of the second marriage. This is purely a question of fact for the jury to decide on the particular circum- stances of the case, and there is no presumption of law either that the party is alive or dead, id) Therefore^ where, on a trial for bigamy, it was proved that the prisoner married A. in 1836, left him in 1843, and mar- ried again in 1847. Nothing was heard of A. after the prisoner left him, nor was any evidence given of his age. The Court held that there was no presumption of law either in favour of or against the continuance of A.'s life up to 1847, but that it was a question for the jury, as a matter of fact, whether or not A. was alive at the date of the second marriage, (e) But when the case is brought within the operation of the proviso in the 82 & 33 Vic, c. 20, s. 58, which exempts from criminal liability " any person marrying a second time, whose husband or wife has been continually absent from such person for the («) Reg. V. Smith, 14 U. C. Q. B. 5G5, (6) Reg. v. Curgeriven, L. R. 1, C. C. E. 1 ; 35 L. J. (M. C<) 58 ; Rc(/. v. Bicii' venu, 15 L. C. J. 141. (c) lb. ; see also Reg. v. Heaton, 3 F. & F. 819. \d) Reg. v. Limkij, L. R. 1 C. O. R. 196 ; 38 L. J. (M. C.) 86. (c) lb. 164 CRIMINAL LAW OF CANADA. space of seven years, then last past," there is no question for the jury, and the prisoner is exonerated from criminal liability, though the first husband or wife be proved to have been living at the time when the second marriage was contracted. By this fjroviso, the Legislature sanc- tions a presumption that a person who has not been heard of for seven years is dead ; but the proviso affords no ground for the converse proposition, — namely, that when a person has been seen or heard of within seven years, a presumption arises that he is still living, (a) The prisoner having a wife living, was married to an- other woman in the presence of the registrar, describing himself, not as E. R., his true name, but as B. E,. There was no evidence to shew that the second wife knew that his christian name was misdescribed : — Held, neverthe- less, that the prisoner was guilty of bigamy, for the pre- sumption in favour of marriage clearly imposed the burden of proving the invalidity of the second marriage upon the prisoner, (b) The Common and Statute Law of England in relation to marriage, as existing at the time of the enactment of the 32 Greo. 3, c. 1, was introduced by this Statute. The Canon Law, so far as it was part of the law of England at that time, was also introduced, with the 26 Geo. 2, c. 83, 25 Hy. 8, c. 22, 28 Hy. 8, c. 7, 28 Hy. 8, c. 16, and 32 Hy. 8, c. 38, so far as they remained in force in England, (c) Before the 26 Greo. 2, c. 33, clandestine marriages, though not void, were illegal, and subjected the parties to ecclesiastical censure : i. e., all marriages were required to be celebrated in facie ecdesia:, and by banns or licence, or if a minor, by consent of parents, otherwise they were (a) Rerj. v. Lumley, L. R. 1 C. C. R 198, per Lush, J. (6) jRet). V. Mea, L. R., 1 C. C. R. 3C5. (c) ffodoivs V. M'Neil, 9 U. C. L. J. 126, per Esten, V. C, 9 Grant. 305; Reg. V. hMin, 21 U. C. Q. B. 357. See 9 U. C. L. J. 1, as to the EngUsh mar- riage laws when the 32 Geo. 3, c. 1, was passed. BIGAMY. 165 voidable in the ecclesiastical courts. Such marriages were rendered void by this Statute, but the 11th clause thereof, in which the avoiding provision is contained, does not apply here. It is therefore illegal in this country, as it was in England before the 26 Geo. 2, c. 33, to marry by license, where both or either of the parties are under twenty -one, without the consent of parents or guardians. But such marriages are not absolutely void. They are, however, irregular, and in breach of the usual bond con- ditioned that no impediment exists, (a) The Imp. Act 5 & 6 Wm. 4, c. 54, is one of convenience and policy, and does not expressly, or by necessary in- tendment, extend to the Colonies. It is, therefore, not in force here. This Statute avoids all marriages cele- brated between persons within the prohibited degrees of consanguinity ; and, under it, a marriage by a man with the sister of his deceased wife is absolutely void (h), though solemnized abroad between British subjects, in a country by the law of which the marriage would have been valid, (c) This doctrine does not apply here ; con- sequently the marriage of a man with the sister of his deceased wife is not void, {ct) To render a marriage contracted by banns invalid, it must be contracted with a knowledge by both parties that no true publication of banns has taken place, (e) It seems that if parties are married by banns, it is no objection that they are under age ; at all events, such was the law in England prior to the 26 Geo. 2, c 38. (/) As the publication of banns in the open manner required gives parents and guardians timely notice of the intended (a) Hodtjmsv. RrNcil; hen. v. Hoblin, supra, . 6) Reel. V. Chadwick, 11 Q. B. 173 ; 17 L. J. (M. C.) 33. (c) Brook V. Brook, 3 Smale & G. 481. (e/) Hodyins v. Af'Neif, 'J Grant, 305 ; 9 U. C. L. J. 126. (e) Re(/. V. Rea, L. R. 1 C. C. II. 3fi5, per Kdli/, C. B ; ifex v. Wroxton, 4 B. & Ad. C40 ; Tom/tie v. Tongue, 1 Moore, P. C. cases, 90. if) Rex y. Inhah Hodnetts, 1 T. R. 99, per Lord Mansfield, 160 CRIMINAL LAW OF CANADA. marriage, and an opportunity of forbidding it, so that, if they make no effort to prevent it, their consent may reasonably be assumed, (a) it would not seem un- reasonable to hold that the marriage by banns of a minor should be valid. Where banns have been published, and no dissent been expressed by parents or guardians, at the time of publication, the husband being under age does not make the marriage void, even by the English marriage act 26 G-eo. 2, c. 33. (b) It is not necessary that marriages should be solemnized in a church, or within any particular hours, (c) The Imp. Stat. 28 & 29 Vic, c. 64, declares that Co- lonial laws establishing the validity of marriages shall have effect throughout Her Majesty's Dominions. The 11 G-eo. 4, c. 36, cured defects in the form of marriages solemnized by Justices of the Peace before the passing of the Act. (d) The 18 Vic, c 129, indicates clearly that the former Statute was not intended to operate retrospectively, ex- cept in the case of marriages solemnized by persons who before that Act had authority to solemnize marriage. The 11 G-eo. 4, c 36, had two distinct objects, — first, to re- move difficulties which might arise in consequence of marriages having been irregularly performed by persons who had authority to marry ; and, secondly, to confer authority to solemnize marriages upon ministers of certain reUgious bodies, whose ministers had no such authority before that Act was passed. The Act has retrospective force as to the latter object only, (e) The 23 Vic, c. 11, and 24 Vic, c 46, confirm and legal- ize certain marriages therein mentioned. The 25 Vic, (a) Reg. v. Roblin, 21 U. C. Q. B. 454, per Robinson, C. J. ib) Reg. v. Seeker, 14 U. C. Q. B. 604. ic) Reg. V. Seeker, supra ; Con. Stat. U. C. c. 72, s. 3. Id) Doe dem, Wheeler, v. M' Williams, 2 U. C. Q. B. 77. (e) Pringle v. Allan, 18 U. C. Q. B. 578, per Robinson, C. J. BIGAMY. 1(J7 C8. 46 and 47, contain certain provisions as to registering marriages and the offences connected therewith. Mar- riages contracted in Ireland between members of the Church of England and Presbyterians celebrated by ministers not belonging to the Church o*" England are legalized by the Imp Stat. 6 & 6 Vic, c. 26, and such marriages celebrated before that Act was passed, are legal marriages in this country, (a) A written contract is not essential to the validity of a Jewish marriage which has been solemnized with all the usual forms and ceremonies of the Jewish service and faith. Such mar- riage is valid, though there exists in relation to it a written contract which is not produced, (b) A case has been decided in Quebec as to the marriage of a Lower Canadian by birth with a Squaw of the Cree nation, (c) In this case it was held {inter alia) that a marriage con- tracted where there are no priests, no magistrates, or civil or religious authority, and no registers, is valid, though not accompanied by any religious or civil ceremony. An In- dian marriage between a Christian and a woman of that nation or tribe, is valid, notwithstanding the assumed existence of polygamy and divorce at will which are no obstacles to the recognition by our Courts of a marriage contracted according to the usages and customs of the country ; and an Indian marriage, according to the usage of the Cree country, followed by cc habitation and repute, and the bringing up of a numerous family, will be recog- nized as a valid marriage by our Courts, (d) - A marriage in a foreign country between persons not being British subjects, if invalid there, must be held invalid in this country, though the parties have done all in their power to make it a valid legal marriage, (e) The ) Breakey v. Breakey, 2 U. C. Q. B. 349. ) Frank v. Carson, 15 TJ. C. C. P. 135. I c) See Connolly v. Woolrich 11 L. C. J. 197- id) lb. le) Harris V. Cooper, 31X7. C. Q. B. 182. 1(>8 CRIMINAL LAW OF CANADA. ag-e of consent to marriage in a woman is twelve, (a) and for a man fourteen. If a boy under fourteen, or a girl under twelve contracts matrimony, it is void, unless both husband and wife consent to and confirm the marriage after the minor arrives at the age of consent. (6) In an indictment for bigamy committed in the United States, it is necessary that the indictment should contain allegations that the accused is a British subject ; that he is or was resident in the Province, and that he left it with intent to commit the ollence. (c) The words, "or elsewhere," in the 32 & 33 Vic, c. 20, s. 58, extend to bigamy committed in a foreign jurisdiction, {d) It is im- material whether the second marriage take place in Canada or in a Ibreign country, provided, if the second marriage take place out of Canada, the accused be a sub- ject of Her Majesty, (e) A soldier convicted of bigamy is not thereby discharged from military service. (/) It has been held that, under the 55 Geo. 3, c. 3, a writ of exigi facias against a person against whom an indict- ment for bigamy has been found" at the assizes, will be awarded by this Court upon the application of the prose- cutor, without its being applied for by the Attorney- General, (^j - ■ • ' .<:.•! Libel. — A libel upon an individual is a malicious defa- mation of any person made public, either by printing, writmg, signs, or pictures, in order to provoke him to wrath, or to expose him to public hatred, contempt, or ridicule, (/t) "Wherever an action will lie for a libel, without laying (a) Rcd. V. BeU, l.'i U. C. Q. B. 287-9. (h) R. V. Gordon, R. & R. 48 ; Arch.Cr. Pldg. 880. (o) R(y. V. M'Quif/[/an, Rob. Dig. 123-4. (A. &E. 1; 2 Per. & I). 1. (c) See Stockdafe v. Hansard, 11 A. & E. 297 ; 8 Per. & D. 346. (dj Con. Stat. U. C. c. 103, s. 13. 178 (CRIMINAL LAW OF CANADA. It would seem that s. 9 of this Statute applies to private- and personal libels only, (a) Members ol" Parliament are neither civilly nor crimin- ally liable lor anything they may say in Parliament, in the course of any proceedings therein ; and, from motives of the highest policy and convenience, Ministers of the Crown cannot be held liable for any advice given to the Sovereign, however prejudicial such advice may be to in- dividuals, {h) But prior to the decision in Wason v. Walter, (c) there was no authority that the publication of a debate in Par- liament was privileged. In this case, it was held that a faithful report, in a public newspaper, of a debate in either House of Parliament, containing matter disparaging to the character of an individual, which had been spoken in the course of the debate, is privileged, on the same prin- ciple as an accurate report of proceedings in a court of justice is privileged — viz., that the advantage of publicity to the community at large outweighs any private injury resulting from the publication. The plaintiff presented a petition to the House of Lords, charging a high judicial officer with having, thirty years before, made a statement, false to his own knowledge, in order to deceive a committee of the House of Commons, and praying enquiry, and the removal of the officer, if the charge was found true. A debate ensued on the pre- sentation of the petition, and the charge was utterly refuted, — Held that this was a subject of great public concern, on which a writer in a public newspaper had full right to comment, and the occasion was therefore so far privileged that the comments would not be actionable ( a) See Reg. v. Duffy, 2 Cox, 45. (6) Dawkins v. Ld. Paulet, L. R. 5, Q. B. 116-7, per Mellor, J. See also ex parte Wcuon, L. R. 4 Q. B. 573. (c) L. R. 4 Q. B. 73; 38 L. J. (Q. B.) 34. LIBEL. ^ \79 SO long as a jury should think them honest, and made i:i a fair spirit, and such as were justified by the circum- stances, as disclosed in an accurate report of the de- bate, (a) But all the limitations placed on the publication of the proceedings of courts of justice, to prevent injustice to individuals, apply to Parliamentary debates. A garbled or partial report, or of detached parts of proceedings, published with intent to injure individuals, will equally be disentitled to protection ; and the iniblication of a single speech in Parliament, for the purpose or with the effect of injuring an individual, ^vill be unlawful. (6) But such a speech is privileged, if bonajide published by a member, for the information of his constituents, (c) Whatever will deprive reports of proceedings in courts of justice of immunity will apply equally to a report of proceedings in Parliament. . : ■ Independently of the orders of the House, there is nothing unlawful in publishing reports of Parliamentary proceedings, ^c?^ . ,« , When a party acts in good faith, and not officiously, in a matter of business, in which he has a personal interest, and is also employed by others, a letter written under such circumstances, though it contains a term in its gravest sense libellous, is privileged, on account of his particular and legitimate connection with the subject of which he was writing, rebutting the presumption of malice ; and in the absence of evidence of actual malice, he could not be prosecuted for libel, (e) The privilege which a communication receives must (o) Watmy. Walter, L. R. 4Q. B. 7.1; 38 L. J. (Q. B.) M. \h) lb. 94, per Cockhum, C. J. ; Rex v. Lord Abingdon, 1 Esp. 226 ; Rex v^ Cretvy, 1 M. & S. 273. (c) Daviton v, Duncan, 7 E. & B. 233 ; 26 L. J. (Q. B.) 107; Waaony. Walter, supra, 95, per Cockhum^ C. J. (d) lb. 95, per Gockbum, C. J. (e; Hanna v. DeBlaquiere, 11 U. C. Q. B. 310. 180 CRIMINAL LAW OF CANADA. result either from some riji^ht on the part of the defendant to say what is complained of, or Irom a sense of duty, public or private, legal or moral, under which the defen- dant is acting, (a) The proper meaning of a privileged communication is this : that the occasion on which the communication was made rebuts the inference prima facie arising from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice in fact, and that the defendant was actuated by motives of per- sonal spite or ill-will, independent of the occasion on which the communication was made, (b) In Campbell v. SpoUiswoode, (c) Crompton, J., is reported to say, "By privilege. I understand that immunity attaching to a particular class of persons, or to an individual, who, "being placed in some particular position, or being charged with the performance of some particular duties, derives therefrom rights which are not shared by the community at large." And Blackburn, J., in the same report, says, ^' The word 'privilege' signifies that species of immunity attaching to a person who, by reason of the circumstances ■of his position, is justified in uttering or writing of another, matters which, if uttered or written by a third party, would be libellous, or slanderous, as the case may be." And in Cowles v. PottSy (d) quoting the language of Parke, . B., in Toogoody. Spyring, (e), " The law considers such publication as malicious, unless it is fairly made, by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own (a) Poitevin v. Morgan, 10 L. C. J. 99, per Badgley, J. ; Hearne v. Stowell, 12 A. & E. 719-26. (6) Poitexin v. Morgan, 10 L. C. J. 98, per Badgley, J. See also Shaver v. Linton, 22 U. C Q. B. 183, per Hagarty, J. ; Somerville v. Hawkins, 10 C. B. £83. (c) 9 Jur. N. S. 1077. (d) 11 Jur. N. S. 949. (e) 1 C. M. & E. 181. LIBEL. 181 affairs, in matters where his interest is concerned. lu such cases, the occasion prevents the inference of ma/ice, which the law draws from the unauthorized communication, and affords a quaUfied defence, depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common conveni- ence and welfare of society, and the law has not restricted the right to make them, within very narrow limits, (a) This proof of express malice appears to consist, in all cases, in shewing mala fides in the defendant, and this renders him liable, because, by the general rule applicable to such cases, every person is bound for an intentional injury done by him to another, {h) To entitle matter otherwise libellous to the protection which attaches to communications made in the fulfilment of a duty bona fides or honesty of purpose is essential ; and to this again two things are necessary : First, that the communication be made not merely in the course of duty, but also from a sense of duty ; and second, that it be made with a belief of its truth, (c) Where the libel is clearly a privileged communication, the inference of malice cannot be raised on the face of the libel itself; but extrinsic evidence of actual express malice must be given, and it is not to be taken to be malicious although it may turn out to be unfounded, but the plaintifT must also prove the statement to be false as well as malicious, {d) Malice, in its legal sense, means a wrongful act done intentionally, without just cause or excuse, (e) By legal (a) Smith v. Armstrong, 20 U. C. Q. B. 59, per Draper, C. J. (6) Poitevin v. Moryan, 10 li. C. J., 98, per Badglev, J. (c) Dawkins v. Lord Vaulet, L. R. 5 Q. B., 102, per Cockbum, C. J. id) M'Inti/re v. M'Bean, 13 U. C. Q. B. 5:34. See ako M'Gullough v. M'Intee, 13 U. (;. C. P. 438 ; Shaver v. Linton, 22 U. C. Q. B. 183. (e) Poitevin v. Morgan, 10 L. C. J. 97, per Badgley, J. ; M'Intyre v. M'Bean, 13 U. C. Q, B., 542, per Jtobinsm, C. J. 182 CRIMINAL LAW OF CANADA. malice is meant no more than the wrongful intention, which the law always presumes as accompanying a wrong- ful act, without any proof of malice in fact, (a) For the purpose of proving express malice, the plaintiff may shew that the libel is really untrue ; but this alone will not constitute express malice, but it may, along with other circumstances, raise an inference that cxpre^5 malice .exists, (b) , Libellous expressions, used in a privileged communica- tion, may be evidence of actual malice for the jury ; but if taken in connection with admitted facts, they are such as might have been used honestly and bona Jide by the defendant, the Judge may withdraw the case from the jury, and direct a verdict for the defendant, (c) The deff"idant, in a pri^^leged communication, de- scribed the plaintiff's conduct as "most disgraceful and dishonest." The conduct so described was equivocal, and might honestly have been supposed by the defen- dant to be as he described it : — Held that the above words were not of themselves evidence of actual malice, (d) The question is not simply whether the act or fact stated is true or untrue, but whether the defendant had reason honestly to believe the act or fact to have been as he represented, (e) When express malice is shown, by proving the libel false as well as malicious, the defendant may still make out a good defence, by shewing that he had good ground for believing the statement true, and acted honestly under that persuasion. (/) Before it can become material for the jury to en- fa) Wason V. Walt(T, L. R. 4 Q. B. 87, per Cockhurn, C. J. (6) M'Cullough V. M'Intee, 13 U. C. C. P., 441, per A. Wilson, J. (c) Spill V. MauU, L. R. 4 Ex. 232. (d) lb. (e) M'Cullough v. M'Intee, 13 U. C. C. P. 441, per A. Wilson. J. : Harriton V. Bush, 5 E. & B. 344. ( f) ATIntt/re v. M'Bean, 13 U. G. Q. B. 534. LiniiL. 183 quire whother the defonclaiit acted maliciously or not, the plaintitrmuKt satisfy thorn that the del'endant's state- ' ntiGuts are not true, and that he had ilo reasonable ground for believing them to be true, (a) It is matter of law for the Judge to determine whether the occasion of writing or speaking criminatory language, which would otherwise be actionable, repels the infer- ence of malice, constituting what is called a privileged communication. If, at the close of the plaintiff's case, there is no intrinsic or extrinsic evidence of malice, it is the duty of the Judge to direct a nonsuit or verdict for the defendant, without leaving the question of malice to the jury. But whenever there is evidence of malice, either ex- trinsic or intrinsic, in answer to the immunity claimed, by reason of the occasion, a question arises which the jury, and the jury alone, ought to determine, (h) But where there is no evidence of malice, the question whether the defendant believed his statements to be true should not be left to the jury, for it is only admissible on the question of malice or bonajides (c). In Shaver v. Linton, the defendant being clerk of the peace, in a conversation with the Sheriff as to the medical examination of a lunatic in gaol, said he would not em- ploy the plaintiff, as he had not the Governor's license, ' adding that he thought the Sheriif had more pluck than to ask him, after what he, the defendant, had written (referring to some article in a medical journal). On being applied to by one M., on the plaintiff's behalf, for an apology, he repeated that plaintiff was not a qualified (a) M'Tntyre v. M'Bean, 13 U. C. Q. B. .534. (b) Shaver v. Linton, 22 U. C. Q. B. 183, per Hagartu, J. ; Cooke v. WildcS. 6 E. & B. 340. See also Poitei'm V. Moraan. 10 L. C. J. 99. per Badr/ky, J.; Lawless v. A. E. Cotton Co., L. R. 4 Q. B. 262; M'Intee v. M'CuUomh, 10 U. C. L. J. 238(in E. &A.) (c) lb. 184 CRIMINAL LAW OF CANADA. physician in Upper Canada, and could not legally prac- tise here without the Grovernor's license, and it was held that both conversations were privileged, and that there being no intrinsic evidence of malice in either, and no extrinsic evidence thereof, in accordance with the above principles, there was nothing to leave to the jury. In the same case, (a) the defendant published a letter, addressed to the editor of a public paper, in which he stated that the plaintiff was unlicensed, and it was hold that the Judge might either have ruled this to be privi- leged, or, at all events, might have left it to the jury, with a strong caution as to usual liberty of discussion allowed in all matters of public interest, and with ob- servations somewhat like those of Sir William Erie, in Tumbull V. Bird, (h) ■ ■ ■ These observations are, of course, a declaration of the law on the subject of publishing communications on matters affecting the public, and are as follows : — " The law is, that a man may publish defamatory matter of another holding any public employment, if it is a matter in w^hioh the public have any interest, within the limits I will lay down in accordance with decided cases. Every person has a right to comment on the acts of a public man which concern him as a subject of the realm, if he do not make his comments the vehicle of malice or slander. The rule is, that the comments are justified, provided the defendant honestly believed that they are fair and just. With that limitation, the law allows the publication." In that case, he told the jury that if they were " of opinion that the defendant, in the comments he made, was guilty of any wilful misrepresentation of fact, either (a) Shatter v. Linton. (b) 2 F. & F. 508. ^ LIBEL. -i 185 Dy the exaggeration of what actually existed, or by the partial suppression of what actually existed, so as to give it another colour, or if he made his comments with any misstatement of fact, which he must have known to be a misstatement, if he exercised ordinary care, then he loses his privilege, and the occasion does not justify the publi- cation, which would then be actionable." - Upon the question whether an alleged libel is a privi- leged communication or not, the proper course at the trial is this: — The Judge is bound to ask the jury whether the matter was published bona fide. If they come to the conclusion that it was, then it is for the Judge to say whether, under all the circumstances, it is or is not a privileged communication, (a) It is wrong to leave to the jury whether an alleged libel is contained in an ofiicial document and privileged communication, {b) i": In an action for libel, the evidence adduced at the trial, in proof of the libel, was, that the defendant, with some others, while at work in his field, were talking of prayer meetings. Upon being told that the plaintiff, and others, were going to hold the next prayer meeting at his house, he stated that he had no objection to the others, but would not allow the plaintiff to come ; and, upon being pressed to state his reasons, said that the plaintiff had been guilty of bestiality. Upon being asked, on a second occasion, to withdraw his words, he refused, and said he was not mistaken, and would go and take his oath of it, if they liked to go down with him before the Magiatrates. The learned Judge left the question of bona fides to the jury, directing them that, if the defendant, through mis- take, bona fide believed what he stated, the occasion would justify the statement. The jury having found for the (a) Stace v. Griffith, L. R. 2 P. C. App. 428, per Ld. Chelmsford. (6) Jb. 18C CRIMINAL LAW OF CANADA. plaintiff, upon motion for a new trial, the Court iield that, there being intrinsic evidence for the Jury to decide upon, the case could not properly be withhel'^ from their decision ; second, that the question being whether the defendant honestly believed what he said to be true, not whether it was in fact true, the case was properly left to the jury, and their decision was final, (a) This case was reversed in appeal, on the ground that the bona fides is made out when the privilege is ascertained. The truth of the words is rssumed to support the privi- lege, and the defendant is not called upon to prove it. {b) In some cases the presumption of privilege is alto- gether conclusive, and the law will not allow any evi- dence to be adduced tc remove or impeach it. The regular and established proceedings in Parliament and in Courts of Justice are of this character, and no action for libel can be supported upon any part of their contents. The reasons given for this absolute privilege are, first, that the safety and welfare of the community requires that all such public proceedings should be perfectly un- restrained and free, and only subject to the authority and discretion of the tribunals in which they takx3 place : second, that such tribunals possess the power of ex- punging all defamatory matters, if irrelevant from the proceedings, and of obliging the offending party to make satisfaction, (c) When a communication is not absolutely privileged, it is a sufficient answer in point of law to say that it was malicious, and made without reasonable and probable cause, {d) The defendant, hearing that a tradesman had been (a) M'CuUouffh V. M'Intee, 13 U. C. C. P. 438. (6) S. C. 10 U. C. L. J. 238, (in E. & A.) (c) Stanton v. Andrews, 5 U. C. Q. B. (). S. 221, et seq., per Skerxoood, J. (d) Dawkina v. Ld. Faulet, L. R. 5 Q. B. 101, per Cockburn, C. J. A' , LliiEL. 187 hoaxed by a letter written in his name, and ordering a certain article, wrote to the tradesman a letter to the effect that, ni his opinion, the letter was written by the plaintiff. It turned out that it was not; but the jury found that the defendant sincerely believed that it was : Held that, even if the letter was a libel, it was a privi- leged communication. /^a^ • • ' — The defendant having published in his newspaper a report read at a vestry meeting, containing a statement to the effect that certain returns of the plaintiff, a medical man, to the Registrar under the Statute, were wilfully false, such report not having been published by the vestry, held that the publication of it was not privi- leged, (h) ; ' : • • - '•• - ■*'•,! A churchwarden having written to the plaintiff, the incumbent, accusing him of having desecrated the church, by allowing books to be sold in it during service, and by turning the vestry room into a cooking apart- ment, the correspondence was published without the plaintiff's permission, in the defendant's newspaper, with comments on the plaintiff's conduct : — Held that this was a matter of public interest, which might be made the subject of public discussion, and that the publication was therefore not libellous, unless the language used was fitronger than, in tne opinion of the jury, tne occasion justified, (c) A charge against the plaintiff, of wrongfully taking the defendant's logs, sawing them into lumber, and sell- ing it, was contained in a letter written by the defendant, to one M., an intimate friend of his, who was a near relative to the plaintiff, but in no way interested or concerned in (a) Croft V. Stevens, 8 U. C. L. J. 280; 7 H. & N. 570. (6) Popham V. Pickburn, 8 U. C. L. J. 335; 7 H. & N. 891 ; 31 L. J. (Ex.) (c) Kelly V. Tinling, L. R. 1 Q. B. C99; 35 L. J. (Q. B.) 231. 188 CRIMINAL LAW OF CANADA. business with either party, with the avowed object of defendant's availing himself of M.'s influence and good offices in his controversies with the plaintiff" raid to warn the plaintiff and his mother against the consequences of law suits, and the alleged interested motives of his attor- ney. M. being absent from the country, the letter was opened by his agents and relatives, and became public : — Held that this was not a privileged communication, (a) It seems the 67th section of 32 & 33 Yic, c. 29, will apply to cases of libel. In Hughes v. Dinorhen, (b) to prove that libels declared on were written by the defen- dant, certain documents, admitted to be in his handwrit- ing, were used as standards of comparison. The plaintiff called several witnesses, and, to support and strengthen such evidence, he produced seven anonymov.s letters, generally relating to the same matters as the libels declared on. This evidence was admitted to prove malice, and the letters were also used as a comparison of the hand- writing in dispute, and no objection w^as made by defen- dant's counsel : — Held that these seven anonymous letters were admissible — that they were relevant to the issue to shew malice ; but that, if a proper objection had been made at the time of the trial, they could not have been received as evidence of handwriting. Upon an indictment for libel, published at defendant's instance, in a newspaper, it appeared that the editor, who was not indicted, before inserting the libel, shewed it to the prosecutor, who did not express any wish to suppress the publication, but wrote a reply, which w^as also inserted : — Held not such a defence for the parties indicted as to render a conviction illegal, (c) (a) Connick V. Wilson, 2 Kerr, 49C; lb. G17; and see Andreivs v. Wilson, i Kerr, 86. (b) .32 L. T. Rep. 271. ((•) Men. V. M'Elderri/, 19 U- C. Q. B. 168. See, as to justification, Stewart V. Rowlands, 14 U. C. C. P. 485 ; Hill v. Ho(/c/, 4 Allen, 108. ,;'' . .•/ RIOT. V. ■ :!,. 1 189 On an application for criminal information for libel, the Court is placed in the position of a grand jury, and must have the same amount of information as would warrant a grand jury in returning a true bill. A grand jury would not be justified in returning a true bill unless the Hbel itself were laid before them. Therefore, the application for a criminal information must be rejected, unless the libel is filed with the affidavit on which the application is based. («) Under the Con. Stats. IT. C, c. 103, a plea to an infor- mation for hbel must allege the truth of all the matters charged. (6) The use of the inuendo in an indictment for libel is to explain the evil meaning of the defendant when the words are apparently innocent and inoffensive, oi ambi- guous. The doctrine of taking words in their mildest sense is applied only when the words, in their natural import, are doubtful, and equally to be understood in one sense as in the other, (c) It is for the Court to say whether the inuendo is capable of bearing the meaning assigned by it, and for the jury to say whether that mean- ing was intended and proved, (d) RioL— This offence is defined to be a tumultuous dis- turbance of the peace, by three persons or more assembling together, of their own authority, with an intent mutually to assist one another against any who shall oppose them in the execution of some enterprise of a private nature, and afterwards actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful, (e) 1«), E^ parte Gugy, 8 L. C. R. .'3.5.3. (b) Heg. V. Moytan, 19 U. C. Q. B. .521. (c) Somcrs v. Honse, Holt 39. Jrffi/j" ^' ^^''^^^' ^^ ^' ^' ^^' Anonymous 29 IT. C. Q. B., 462, per (e) R€g. V. Kelly, 6 U. C. C. P. 372, per Draper, C. J. 190 CRIMINAL LAW OF CANADA. The difference between a riot and an unlawful assem- bly is this : the former is a tumultuous meeting of per- sons, upon some purpose which they actually execute with violence, and the latter is a mere assembly of persons, upon a purpose which, if executed, would make them rioters, but which they do not execute, nor make any motion to execute, (a) There is also an offence of a similar character, called a rout. This offence is distinguishable from an unlawful assembly in this, that the parties actually make a motion to execute the purpose which, if executed, would make them rioters. (6) The case of Reg v. Kelly (c) fully maintains the dis- tinction between a riot and unlawful assembly. In this case, the defendant was indicted for riot and assault, and the jury found him guilty of a riot, but not of the assault charged : — Held that a conviction for riot could not be sustained, for the assault, the object of the riotous assem- bly, had not been executed, but that the defendant might have been found guilt)'- of forming part of an unlawful assembly, {d) It was considered that the assault was the enterprise of a private nature, in the words of the defini- tion of riot, and that it must be afterwards actually exe- cuted with violence to constitute the offence. It may be observed generally that all the parts of this definition must be satisfied, in evidence, before the jury can convict of riot. Three persons, or more, must be engaged therein ; (e) it must relate to some private quarrel^ only ; for the proceedings of a riotous assembly, on a public and general account, may amount to overt acts of high 7a) Reg. v. Kdhj, 6 U. C, C. P. 372 ; Rex v. Birt, 5 C. & P. 154. (6) See Rubs. Cr. 387 ; Reg. v. Vincent, 9 C. & P. 91. (c) Supra. Id) lb. (e) R. V. Scott, 3 Burr, 1262 ; 1 W. BL 291 ; R. v. Sadbury, 1 Ld. Raym 484 ; Salk, 593; Arch. Cr. Pldg. 841. RIOT. ' 191 treason, by levying- war against the Queen, ^a^ The offence must also be accompanied with some such cir- cumstances either of actual force or violence, or, at least, of an apparent tendency thereto, as are naturally calcu- lated to inspire people with terror, such as carrying- arms, using threatening speeches, turbulent gestures^ etc. (6) , , But it is not necessary that personal violence should have been committed, (c) It is sufficient terror and alarm to sustain the indictment if any one of the Queen's subjects be in fact terrified, (d) To some extent it is necessary that there should be a predetermined purpose of acting with violence and tumult,; and if parties met together on a lawful and innocent occasion, become involved in a sudden affray^ none are guilty but those who actually engage in it, for the breach of the peace was not part of their original purpose, (e) But it seems to be immaterial whether the act intended to be done by the persons assembling be in itself lawiul or unlawful. (/) "Where a riot is proved to have taken place, the mere presence of a person among the rioters, even although he possessed the power of stopping the riot, and refused to exercise it, does not render him liable as one of the rioters, {g) In order to render him so liable, it must be shewn that he did something, by word or act, to take part in, help, or incite the riotous proceeding, (/t) It is not necessary to constitute a riot that the Riot Act {i) should be read. Before the proclamation can be read, a riot (a) Ru88. Cr. 379. 6) R. V. Hughes, 4 C & P. 373; Arch. Cr. Pldg. 842. (c) Clifford V. Brandon, 2 Camp, 369, per Mansfield, C. J. ; Rusb. Cr. 379. (d) R. V. Phillips, 2 Mood. C. C. 252 ; C. & Mar. 602 ; Arch. Cr. Pldg. 842. (e) Ru88. Cr. 381. (f) lb. 380. {g) Reg. v. Atkinson, 11 Cox, 330, per Kelly, C. B. (h) lb. (t) 31 Vic, c. 70. 192 CTtlMINAL LAW OF CANADA. must exist, and the effect of the proclamation will not change the character of the meeting, but will make those guilty of felony who do not disperse within an hour after the proclamation is read, (a) An assemblage ol persons to witness a prize fight is an unlawful assembly, and every one present and coun- tenancing the fight is guilty of an offence. (6) By the common law, every private individual may lawfully endeavour, of his own authority, and without any w^arrant or sanction from a Magistrate, to suppress a riot, by every means in his power. He may disperse, or assist in dispersing, those assembled, and stay those engaged in it I'rom executing their purpose, as well as stop and prevent others whom he may see coming up from joining the rest. It is his boanden duty to do this, and even to arm himself, in order to preserve the peace, if the riot be general and dangerous. If the occasion demands immediate action, and no opportunity is given for procuring the advice or sanction of a Magistrate, it is the duty of every subject to act for himself, and upon his own responsibility, in suppressing a riotous and tumul- tuous assembly, and the law will protect him in all that he honestly does in prosecution of this purpose, (c) This power and duty devolve upon a Governor of a colony, as well as others, in case of riot and rebellion, {d) By the 31 Vic, c. 70, s. 5, persons suppressing a riot are jus- tified, though the death of a rioter may ensue. This is now the governing enactment as to riots throughout the Dominion. Forcible Entry or Detainer. — This offence is committed by violently taking or keeping possession of lands and (a) R. V. Furzey, 6 C & P. 81. (6) R.\. Bellingliam, 2 C & P. 234; B. v. Perkins, 4 C, & P. 537: Arch. Cr. Pldg. 842-3. (c) Phillips V. Eyre, L. R. 6 Q. B. 15, per Willes, J. (d) lb. FORCini.K ENTRY OR DETAINER. 198 tenements with menaces, force, and arms, and without the authority of the law. [a) It is a misdemeanor at common law, and there is no doubt an indictment will he at common law for a I'orcible entry, if accompanied by such circumstances as amount to more than a bare tres- pass, and constitute a public breach of the pecice. {b) The object of prosecutions for forcible entry is to re- press hii^h- handed etforts of parties to riuht them- selves ; (6*) and there seems now no doul)t that a party may be guilty of a forcil)le entry by violently and with force entering into that to which he has a legal title, {d) The Stats. 8 liy. 4, c. 9, 8 Hy. 6, c. 9, 6 Hy. 8, c. 9, and 21 Jac. 1, c. 15, as to forcible entries, seem to be in force in this country, (e) Under these Statutes, the party aggrieved by a forcible entry and detainer, or a forcible detainer, may proceed by complaint made to a local Justice of the Peace, who will simimon a jury, and call the defendant before him, and examine witnesses on both sides if offered, and have the matter tried by the jury. (/) The party may, however, also proceed by action or by indictment at the General Sessions, (s;) And if a forcible entry or detainer be made by three persons, or more, it is also a riot, and may be proceeded against as such, if no enquiry has belbre been made of the Ibrce. {h) It has been held that the private prosecutor, on an indictment for forcible entry or detainer, cannot be ex- amined as a witness, if the Court may order restitu- (a) Ru88. Cr. 421. (b) R. V. Wilson, 8. T. R. 357 ; R. v. Bake, 3 Burr, 1731 ; Arch. Cr. Pldg. 851, (c) Req. V. Connor, 2 U. C. P. 11. 140. \wv Robinson, 0. J. (dj Newton v. Harlnnd, 1 M. & Gr. 644 ; Butcher v. Butcher, 7 B. & C. 399 ; 1 M. & R. 220; Hillary v. Gai/, 6 0. & P. 248 ; Kusa. Cr. 421-2. (e) Anteyi. 22. ( /) Boswell and Loyd, 13 L. C. R. 10 per Maguire, J. (ffj Russ. Cr. 428. ih) lb. M 194 CRIMINAL LAW OF CANADA. Hon. (a) As this disability, however, rests solely on the ground of interest, it is, no doubt, removed in Ontario, at least, by the Con. Stats. U. C. C, 82, and the (Ont.) 33 Vic, c. 13. If, since the forcible entry, the prosecutor has been restored lo possession, he may be a witness. (/>) An inquisition taken before a Justice is bad if it ap- pears to the Court that the defenda'it had no notice, or that any of the jury had not lands or tenements to the value of forty shillings, for the 8 Hy. 4, c. 9, expressly requires that persons who are to pass on such an inqui- sition should hrA *' lands of that value, (c) The notice is not required by the 8 Hy. 6, c. 9, but the uniform course of criminal proceedings makes it necessary that, before a person shall be found a criminal, he shall be called upon to make defence ; and, in addition to this principle, the Courts have recognized the propriety of notice in this proceeding, on the ground that it would be wrong to put a person out of possession of his house or land upon a complaint of which he has no knowledge, [d) On an indictment for forcible entry or detainer of land, evidence of title in the defendant is not admissible (e) "Where the defendants applied for delay, in order to give evidence of title, but o.i the prosecutor consenting to w^aive restitution in the event of conviction, they were compelled to go to trial, and were convicted, a writ of restitution was afterwards refused, though, semhle, it would, in any case, have been improper to delay the trial for the reason urged. (/) An inquisition for a forcible entry, taken under 6 Hy. 8, c. 9, must shew what estate the party expelled had in (a) Reg. V. Huyhson, Rob. Dig. 124 ; B. v. Beavan, Ry, & M. 242 ; R. v. Williams, 4 Man. & R. 471 ; 9 B. & C. 549. (6) Reg. v. Hughson, supra, (c) Rex V. M'Kreavy. 5 U. C. Q. B. 0. S. 620. (d) lb. 626, per Robinson, C. J. (e) Reg. v. Cokely, 13 U. C. Q. B. 521. (/) Reg. V. Connor, 2 U. C. P. R. 139. FORCIBLE ENTRY OR DETAINER. 195 the premises, and if it do not, the inquisition will be quashed, and the Court will order restitution, (n) The 8 Hy. 6, c. 9, was construed to authorize restitu- tion only in cases where the person expelled was seized of an estate of inheritance. The 21 .Tac. 1, c. 15, extends the remedy to a tenant for years; .and, in the opinion of Lord Coke, the latter Statute will apply to a tenant for a term less than a year, (ft) When the inquisition, finding" a forcible entry is quashed, the Court, upon the prayer of the party dispossessed under the Justices' writ, must award a writ of restitution to place him in possession, (c) It was formerly held that where the prosecutor had been examined as a witness, restitution should not be granted, (d) This was because the evidence Act, 16 Vic, c. 19, excluded any claimant or tenant of premises .sought to be recovered in ejectment. The late Act does not affect criminal proceedings, so that the decision will still, perhaps, hold in Ontario. On an indictment for forcible entry, containing two counts, one at common law and the other under the Statutes, the prosecutor alleging that he had a term of years in the land, there was a general verdict of guilty ; a writ of restitution was refused, it ap- pearing that the lease of the land had expired, (e) Restitution cannot be awarded to one who never was in possession, or one who never has been dispossessed. (/) The Court of Queen's Bench had at common law no jurisdiction to issue a writ of restitution, except as part of the judgment on an appeal of larceny, (g) But, by an equitable construction of the Statutes, it has now a dis- cretionary power to grant a writ of restitution, (h) (a) Mitchell v. Thompson, 5 U. 0. Q. B. O. S. 620. (6) Bex. V. AVKreavy, 025, per JRobinson, V. J. (cj lb. G26, i)ar Eobinson, ('. J. (d) Rey. V. Connor, 2 U. C. P. R. 139. (e) Jtex V. Jackson. Draper, .53. (/) Bomvell and Loyd 13 L. C. R. 11, pvv Muimire, J. ig) Re(j. V. Lil. Mayor London, L. 11. 4 Q. B.371. (h) Mitchell v Thompton, 5 U. C. Q. B. O. S. 628, p^v Robinson, C. J. 10() CRIMINAL LAW OF CANADA. "Wh«'re the defendant, having- heen convicted at the Quarter Sessions on an indictment ibr forcible entry was fined ; but that Court refused to order a writ of restitu- tion, and tlie case was removed into the Queen's Bench by certiorari, and a rule obtained to shew cause why a writ of restitution should not be issued : — Held that it was in the discretion of this Court either to j^-rant or refuse the writ; and, under the circumstances, th>^ ver- dict being' against the charge of the learned chairman, and he having declined to grant the writ, and the prose- cutor's case not being favoured, it was refused. («) The Court of General Sessions, where the indictment is found, may, before trial, award a writ of restitution ; but it is entirely in the discretion of the Court to grant or refuse such writ. (6) But a Justice out of Sessions cannot award restitution on an indictment of forcible entry, or forcible detainer, found before him by the grand jury, at the Sessions. He can only do so if seized of the case out of Sessions, and after enquiry before a jury, on a regular inquisi- tion. The statement that the Justices in Court, or out of Court, may award a writ of restitution only holds to the extent above-mentioned, (c) If an indictment is brought at common law for a forcible entry, it is only necessary to state the bare possession of the prosecutor ; but in such case no restitution follows the conviction, {d) A mere trespass will not support an indictment for forcible entry. There must be such force, or show of force, as is calculated to prevent resistance, (e) But where the defendant, and persons with him, having entered a (a) Reg. v. Wightman, 29 U. C. Q. B. 211. (6) Bosivell and Loyd, 13 L. C. R. 6. (c) lb. (d) Bex V. M'Kreavj/, 5 U, C. Q. B. 0. S. 629, per Sherwtod, J. (e) Bex V. Smvth, 1 M. & Rob. 155 ; 5 C. & P. 201. NUISANCKS. ' • 197 (Iwolling-houso through an open door, and one of the persons havinc;' l)een seen to push out the wind»iW8, the deleiidant himsel f takinjuf them olF the hinges, it was held that a conviction lor Ibrcible entry should not be distiirbed. (a) ■" ' • > A wife may be guilty ol' a ibrcible entry into the dwel- ling-house of her husband, and other persons also, if they assist her in the force, although her entry, in itself, is lawful, (b) - ' ^ , •- ' .. . • :.^ Nnisances. — It has been said there are three kinds of nuisances — namely, puf)lic, common, and private, (r) To constitute a pu})lic nuisance, the thing complained of must be such as, in its nature or its consequences, is a nuisance, an injury or damage to all persons who come within the sphere of its operation, though it may be in greater or less degree, {d) Throwing noxious matter into Lake Ontario, or any other public navigable water, is a public nuisance, and the person guilty thereof is liable to an indictment for committing a public nuisance, or to a private action, at the suit of any individual distinctly and peculiarly in- jured, (e) So obstructions to navigable rivers are public nuisances (/) So if one person has a mill, by prescrip- tion, in his soil, and another erects a mill upon his soil, by which the stream to the mill of the former is strait- ened or stopped, or by which too great a quantity of water runs thereto, so that the mill is endangered, and cannot grind as much as it was wont, this is a nuisance to the mill.(.^) The collection of a crowd of noisy and disorderly (a) Reg. V. Martin, 10 L, C. R. 435. (h) Rex. V. Smyth, 1 M. & Rob. 15.5 ; Arch. Cr. Pldg. 849. ^ > ^ (c) Little V. I nee, 3 U. C. C. P., 54.5, per Macaulay, 0. J. . ' (d) Jh ; Reg. v. Me>/ers, 3 U. C. C. P. 333, per Macaiilav, C. J. (el Watson v. City Toronto Gas and Water Co., 4 U. C. Q. B. 158. (/) Brown and Owjy, 14 L. C. R. 213. (g) MilU V. Dixon, 4 U. C. C. P. 227, per Macaulay, C. J. 198 CRIMINAL LAW OF CANADA. people, to the annoyance of the neighbourhood, or out- side ji^roundn, in which entertainments with muHic and fireworks are j^ven, for profit, is a nuisance, for which the j^iver of the entertainment is liable to an injunction, even although he has excluded all imi)roper characters from the grounds, and the amusements within the grounds have been conducted in an orderly way, to the satisfaction of the police, (a) It seems that a person who is annoyed by the noise of horses kicking in a stable contiguous to his dwelling, and by the stench from the manure, etc., cannot maintain an indictment to remove it. (h) All disorderly houses are public nuisances, and may be indicted, (c) Where the defendants, as master and mistress resided in a house to which m(;n and women resorted lor the pviri)ose of prostitution, but no indecency or disorderly conduct was ])(;rcoptible from the exterior of the house : — Held that th(; dc^lendants w<;re guilty of keeping a disorderly house, (d) But a conviction, under the 'V2, & 33 Vic, c. 32, ibr keeping a house of ill I'ann;, or being an inmate of such a house, adjudicating that the accused should pay a line of $50 forthwith, and be im- prisoned for thr(!e months, unhiss tlui fiiu; be, sooner paid, is not warranted by s. 17 of the Statute, for im- prisonnu'nt is only authorized by the Act, when it has been awarded as a subslantive punishment, (e) It would s(!em that though a Magistrab; may have a general Jurisdiction to hear any complaint against a dis- orderly inn or house, he has no right to issue a warrant to arr(^st a casual guest, quietly visiting a lici Liimrnmn v. Paul, 11 U. (!. Q. H. 537, \wr Rol>in»(m, C. J. (f'l KiiKH. Cr. 4'12. (d) Ji(y. V. hire, h. R. 1 C. C. K. 21; 35 L. J. (M. C.) W. (e) lt« Slater, \i U. C. L. J. 3L niiisan(;eh. 199 way present at or assisting in any disturbance or disorder, and this tiiough the ini'orrnation charj^es the house to be a common disorderly ill-jroverned house, and a common nuisance m the neighbourhood, and the warrant is to appreh<'nd the keeper thereol', and all others found therciin. (a) > ' In jr»;noraI, all open lewdness, grossly scandalous, is indictable at common law, and it appears to be an estab- lished principle that whatever openly outrages decency, and is injurious to public morals, is a misdemeanor. (6) The prisoners were convicted of indecently exposing their persons in a urinal, open to the jmblic, which stood on a public footi)ath in Hyde Park, and the entrance to which was from the Ibotpath : — IleJd Ihat the jury might well find the urinal to be a pu})lic place, and that, there- fore, the conviction was good, (c*^ By the 10 & 11 Wm. 3, c. 17, all lotteri«!S are declared to be j)ublic nuisances, (d) Where one hundred and Ibrty-nine lots of land were sold by lottery, the person g. - (r) n,y. V. Harri», [.. U. 1, (!. (.'. II. 282. (iiT Rohimon, C. J. (e) Puwir V. (Mnniff, 18 [l. (!. <,^. I',. 4();{. ■ - (/) MumhaH v. /'latt, 8 V. C (,'. V. 18!). (.'/) Ihy. V. (forporation Parin, 12 U. C. C. l>. 450, per Draper, C. J. 200 CRIMINAL LAW (3F CANADA. private nnisuiice to the owners of saw logs ready to pass, but prevented from x^assing thereby, as may be abated by them, (a) >■ ^ -. ■ . - ;• , . The proper remedy for a pubhc nuisance is by indict- ment. And where an obstruction of a navigable river is an injury common to all the Queen's subjects who have occasion to use the stream, and is, consequently, a public nuisance, a person sustaining no actual particular damage cannot maintain an action therefor, but the proper remedy is by indictment, (b) ■ - • An indictment is the proper remf'dy in all cases, except when a charter, which is assumed to be a contract be- tween the parties obtaining it and the public that the road will be constructed, has been obtained to construct the road, and the work has never been done, in which latter case the proper remedy is mandamus. A mandamus nisi having issued to compel a municipal corporation to repair and build a bridge, it appeared, on the return, that the liability was disputed on several grounds, it being contended that the bridge did not be- long to the defendants, that it was not constructed on the site provided by the charter of the original company which biiilt it, and Vv'^as in an unfit and dangerous place, and that it should be repaired by another municipality : — Held that, under these circumstances, a mandamus would not lie, and that the applicants must proceed by indictment, (r) The circumstance that the thing complained of fur- nishes, on the M'^hole, a greater convenience to the public than it takes away, is no answer to an indictment for a nuisance, (cl) As to highways, the test, irrespective of (rt) Little V. luce, 3 U. C. C. P. r)45-(>. {!>) Small V. G. T. R. Co. U^ U. C Q. B. 28.1 ((•) R(V. V. C(n-}ioratiim Haldimaitd, 20 U. ('. (l B. 574. ((/) Riv. V. Brurv, 10 L. C. K. 117 ; Re ; ■Rf;/. V. Mriiern, sii)im. 333, j)i'r Marnuhiv, C. j. if) lie;;, v. J'tttton, 13 L. V. R. 311. ffj Re;/. V. Dnvhp, 11 Ij. C. J. 186. 202 CRIMINAL LAW OF CANADA. An indictment had been preferred against the defendant, in a previous term, for a public nuisance, and judgment obtained ordering its abatement, the Court, on an affida- vit that the nuisance had not been abated, made a rule absolute for a precept to the Sheriff" to abate the nui- sance, (a) A party is liable to fresh actions for continuing a nuis- ance, (b) And it may be generally stated that when a person is liable to an action for a nuisance , he may also be indicted, (c) There seems to be no authority for a Justice convicting a party summarily of a nuisance, and fining for the offence, (d) A conviction by a Magistrate for obstructing a highway, and order to pay a continuing fine until the removal of such obstruction, was held bad, as unwar- ranted by any Act of Parliament, (e) Twenty years' user wall not legitimate a public nuis- ance. (/) The maxim that no length of time will legalize c>uch nuisance generally holds ; (g") but as applied to a question of dedication, equivocal in itself, after a lapse of thirty years, without any public enjoyment, before or after suit, it forms a proper subject to be taken into con- sideration. (Ii) Highways exist both by land and water. In Ontario, those by land have accrued to the public by dedication of the Crown, in what is commonly termed allowances for roads in the original survey of towns and townships ; or by dedication of private individuals, or under the pro- visions of the Statute Law, or by usurpation and long (a) i?^/. V. Hendry, 1 James, 105. [b) Drew v. Baby, G U. C. Q. B. O. S. 240, per Rohimon, C. J. {A Rex V. Pcdiey, 1 A. & E. 822; Rcff. v. Stephens, L. It. 1 Q. B. 702. 35 L. J. (Q. B.) 25L (d) Brass v. Haher, 18 U. C. Q. B. 286, per Robinson, C. J. (e) Reg. v. Huber, 15 U. C. Q. B. 589. (f) Rey. V. Brewster, 8 U. C. 0. P. 208. (ij) See R. V. Cross, 3 Camp. 227 ; 4 Bing. N. C. 183. {h) Rex V. Allan, 2 U. C. Q. B. O. S. 105, per Macaulay, C. J. NUISANCES TO HIGHWAYS. 203 enjoyment. Upon land, therefore, highways are estab- lished only by some positive act, indicathig the object and its accomplishment. They are, it may be said, arti- licially made, or only become such by acts in pais. It is otherwise with navigable rivers and watercourses. They are natural highways, pre-existing and coeval with the first occupancy of the soil, and formed, practically, the first or original highways, in point of actual use. {a) In the year 1826, the original town plot of London was surveyed under instructions from the Crown, and the plan of such survey, with the field notes, shewed that two of the streets, for obstructing portions of which the defendant was indicted, were extended to within four rods of the river Thames, which runs through that town. The overseer of highways for the years 1829, 1830, 1831, stated that he had traced the streets in question all through ; that the posts were there ; that he opened the streets by the posts ; that there was a road reserved four rods along the river bank; that one of the streets ran down to the river, and the posts were then four rods from the river when he opened that street. In 1832, one R. was duly instructed to survey a mill site in the town, and to lay off for the purchaser such ground as might be necessary, and he thereupon ran a Hue which ?^ossed these tv\^o streets as designated upon the original plan, and cut off portions of several town lots laid out upon this plan. In 1839, a mill site was sold by the Crown land agent to one B. (under whom the defendant claimed), not ac- cording to R.'s survey, but according to a small plan ob- tained from the original surveyor; and the patent, which issued in 1846, appeared to grant the land designated on this plan, making no reservation of streets, but including (<•) R«o. V. Meyers, 3 U. C. C. P. 352, y^vMacaulay, V. J. 204 CRIMINAL LAW OF CANADA. the extensions to the river of the streets in question, as laid out upon the original plan. Previously, also, to this sale, lots had been sold on these streets by the proper authorities ; the streets had been worked and improved, and one in particular was open to the river, and the other as far as where the ob- struction stood. Held, affirming the judgment of the Court of Common Pleas {a), that the evidence conclusively established that the streets in question had been laid out in the original survey of the town to within four rods of the river, and that this space was left open for public use; that the existence of these streets as piiblic highways was shewn by the work on the ground at the original survey, and by the adoption, on the part of the Crown, of that work as exhibited on the plan thereof returned, which adop- tion was established by the disposition (jf lands according to that plan and survey ; that thereby these streets be- came public highways ; and although, prior to such adop- tion, the Crown would not have been bound by either plan or survey, after such adoption there was no power of making such an alteration as would be necessary to establish the defence set up. {b) Where, for a period of more than twenty years, there had been travelled roads through the Humber plains in the Township of Etobicoke, not laid out by any proper authority, but used by the public at pleasure, owing to the originiil allowances not having been opened. Thej'' were irregular in their direction, and varied, at times, in their course. On the 31st March, 1835, seven hundred acres, including the defendant's lot, "with allowances for roads, as left by the surA^ey of Deputy-Surveyor Hawkins, (ft) 16 U. C. C. P. 145. (6) Reg. v. Hunt, 17 U. C. C. P. 443 (in E. & A.) NUISANCES TO HIGHWAYS. 20o and all other roads now travelled," were granted to trus- tees for Christ Church, Mimico, and subsequently trans- ferred by them to the Rector, under whom defendant held. One of such roads crossed defendant's land. It was proved that, during two years, statute labour had been performed upon it, and that it had been travelled for nearly fifty years. When the regular allowances were opened, defendant obstructed this road, and it ap- peared that other similar roads in the neighbourhood had been closed in the same Ta'dinier :— Held that the road could not be considered a highway, for the evidence shewed not a perpetual dedication, but at most a permis- sion to use until the proper allowance was opened, when, if not before, the defendant had a right to close it. (2) That it was not a highway under the 2!) & 80 Vic, c. 51, s. 315, for it could not be said that statute labour had been " usually performed" upon it; and as it was, in lact, only a substitute for the regular allowance, it might fairly be treated as "altered" within the spirit of that clause when the allowance was open. (3) That no right by dedica- tion could have been gained by the public while the fee remained in the Crown, and the permission of the Rector for the time being, or his tenants, could not bind his suc- cessors, (a) . : , The 315th clause of the 29 & 30 Vic, c. 51, cannot be taken to mean that every bye road or short cut used by the Indians across the plains or flats is to be established as a permanent highway. It only means that roads which, under the provisions of that Act, are to acquire the character of legal highways, should have that same legal character where they passed through Indian lands, as in other parts of their course, although they might not be public allowances made in any original survey, (a) Reg. v. Plunkett, 21 U. C. Q. B. 536. 206 CRIMINAL LAW OF CANADA. nor had any public money been expended, or statute labour performed on them. (//) Where the defendant was convicted on an mdictment charging him with having obstructed a " highway," on evidence which, as reported to the Court, did not shew that the alleged highway had been established by a plan, filed or signed by the owners of the adjoining lots, or by the general user of the public, it having been used by one or two persons only for a short time, or that any clearly defined portion of land had been marked olf and used ; but there appeared to have been merely an open space, not bounded by posts or fences, over which the owners of the adjoining land had been in the habit of passing in the carriage of goods, wood, etc., to the rear of the premises: — Held, that there was not sufficient evi- dence to support the conviction, and it was, therefore, quashed, {h) The roads of joint-stock companies are not public roads or highways, within the meaning of 22 Vic, c. 54, s. 336 (c) Under Con. Stats. U. C, c. 54, s. 313, the fact of the Government surveyor having laid out a road in his plan of the original survey, would make it a highway, unless there was evidence of his work on the ground clearly inconsistent with such plan, {d) A public road, laid out in the original survey of Crown lands, by a duly authorized Crown surveyor, is a public highway, though not laid out upon the ground. After a road has once acquired the legal character of a highway, it is not in the power of the Crown, by grant of the soil, and freehold thereof, to a private person, to defeat the public of their right to use the road, (e) (a) Byrnes r. Bown, 8 U. C. Q. B. 181. (6) Reg. v. Oiiellette, 15 U. C. C. P. 260. (c) Eeif. V. Brown and Street, 13 U. C. C. P. 366. (d) Carrick v. Johnston, 26 U. C. Q. B. 69. (e) Beff. V. Hunt, 16 U. 0. (J. P. 145. NUISANCES TO HIGHWAYS. 207 The defendant being indicted for overflowing a high- way with water, by means of a mill dam maintained by him, objected that there was no highway, and could be no conviction, because the road overflowed, which was an original allowance, had been in some places enclosed and cultivated. It was used, however, at other points, and those who had enclosed it were anxious that it should be opened and travelled, which, they said, was impos- sible, ownng to the overflow. The overflow was at other parts than those so enclosed : — Held that the conviction was clearly right, and the 335th section of the 29 & 30 Vic, c. 51, did not apply, because no other road had been in use in lieu of the proper allowance, nor had any road been established by law in lieu thereof, (a) The original public allowances for road made in the first survey of a towniship continued to be public high- ways, notwithstanding a new road deviating from any such allowance might have been opened under the pro- visions of the Statute 50 G-eo. 3, c. 1, or might have been confirmed as a highway by reason of statute labour or public money having been applied upon it. [h] Where, in the original plan of a township, a piece of ground was laid out as a highway, which was subse- quently granted by the Crown, in fee, to several indivi- duals, and w^as occupied by them, and others claiming under them, for upw^ards of thirty years, and never had been used as a highway: — Held that an indictment for a nuisance for stopping up that piece of ground, claiming it as a highway, could not be sustained, (c) An indictment for obstructing a highway, laid out under 50 Geo. 3, c. 1 , could not be supported w^hen the high- way had not been established in the manner marked out (a) Reg. v. Lees, 29 U. C. Q. B. 221. (6) Upaldiuy v. Ro foot way was a highway, which, it must be assumed, had been dedicated to the public, suf)joct to the; condition that the owners of the soil might plough \i up, and that there could at law be such a limited dedi- cation, and that the right to plough up (he footpath, and thereby temporarily interfere with the use of it by the public, was reasonable, and not inconsistent with the dedication. («) So there may be a dedication of a way to the public, subjoct to a right of the owner of the land through which it passes to have a gate, at certain seasons, run acro.ss it. (6) Tho owner, who dedicates to public use, as a hijrhway, a portion of his land, parts with no othor right than a right oi' passage to the public over the lands so dedicated, and may exercise all other rights of ownership not incon- sistent therewith ; and the appropriation made to and adopted by the public, of a part of the street, to one kind of passage, and another part to another, does not deprive him of any rights, as owner of the land, which are not inconsistent with the right of passngi* by the public, (c) In order to constitute a valid dcidication to the public of a highway, by the owner of the soil, it is clearly stittled that ther(i must ])e an intHnlion to dedicate, an nvimus drjlirandi, of which the user by tin; public is evidence, and no more ; and a single act of interruption by the owner is of much more weight upon a question of inten- tion than many acts of enjoyment, (d) (a) Arnold v. Jilnkcr, li. R. (J C^ K 43;j (Ex. Chr.) ; Mercer v. Woodrjate, L. R. 5 Q. B. 2fi ; :V.i L. J. (M. (". ) 21, aflfimiwl. (h> liiirtlfU V. ProU, 2 ThoiriHon, 11. (r) St. Mavi) Nt.witvjlou v. Jaroha, ]j. R. 7 C^. 15. 5.'}, per Afel/or, J. Id) Miirrtr v. Wi>oi/(/atr, L. R. .5Q. Jj. 32, ijcr Ilannen, J. ; Haukins v. Baker, i Olflright, 423, per Des Jiarret. J. nuisan(;hs T(> hioijways. 213 To constitute a public hiuhway by user, there must be an intention, expressed or implied, oi" medication to tiie public on the part ol" the owner \y'ao permits such user, (a) Adoption by the public, and acquiescence, at least, if not user, are most material ingredients to constitute a bind- ing dedication, (b) The intention of the party to dedicate must be clear, and time is considered an essential ingredient. The act or assent of the public must be manifest and complete, and even then a subject cannot, by any spontaneous act of appropriation, impose a highway upon the public. W a highway, the public become bound to repair it, and, consequcnitly, their adojjtion or assent becomes impor- tant. Huch adoption and assent, in the cas '- of allowances, are waived by the expenditure of public money in open- ing or repairing, the periormance of statute labour, user, etc. ; but, without houw. evidence of adoption by user, or other manifestation, an allowance for road at common law would continue an allowance only, and not a road, in fact. ((■) A reservation inconsistent with the legal character of a dedication would be void, (dj It seems there may be a public highway without its being a thoroughfare ; at all events, if a highway were stopped at one end so as to cease to be a thoroughfare, it would, in its altered state continue a highway. The old doctrine that a highway implied a thoroughfare, has been so far modified by more recent decisions that there may be in a square in a great city, lighted and paved at the public expense, which the public, in fact, frequent, passing along its three sides, or to the houses therein sit- (rt) Leary v. Saiinilirn, 1 OldriKlit, 17. (b) Rex V. Inhoh. St /{ntflirl, \ I',. & A., 447, 12 Ea. H'ti ; Rex v. Allan, 2 U. V, Q. H. () S 100, jKtr r.'ohinHoii, C. J. ((■) /'*. 10:{ 4, j..T Vnnviliui, ('. .1 [d) Arnold v. lHaker, I.. iL G Q. B. 437, per Kdly, C. B. '""". 214 CRIMINAL LAW OF CANADA. Tiate, a highway in legal contemplation, although it is a cul de sac. {") ' . ' ' -■ > • ■"^' .,• But where such highway is claimed by dedication, the acts or declarations relied on to support it must be ' clear and unequivocal, with manifest intention to dedi- cate. There is a difference between a cul de sac in the city and one in the country; much stronger acts being required to establish a public highway by dedication in the latter than in the former. The mere acting so as to lead persons to suppose that a way is dedicated does not amount to a dedication, if there be an agreement which explains the transaction, (b) The question of dedication or no dedication is a question of fact for the jury, (c) "Whether a certain road constitutes a highway or not is generally a mixed question of law and fact, depending much upon circumstances and the peculiar features of each case, (d) The expenditure of public money on a road laid out thirty feet wide can only make it a pub- lic highway to that extent, and will not have the effect of extending it to a highway four rods wide, (e) Where a road has been used as a public highway, and the usual statute labour of the locality done upon it from year to year, this will, in the absence of explanation, establish the road as a public highway. (/) JBut where it appear- ed from the evidence that statute labour had been per- formed on part of the road in question, but only to a lim- ited extent, and not from time to time, so as to shew it was a road " whereon the statute labour hath been usually performed " : — Held, not sufficient to establish the road as (a) Hawkins v. Baker, 1 Oldriglit, 419-24 ; Rex v. Marquis, Devonshire, 4 A. & E. 713, per Patteson, J. ih) 11). 419. See alao Poole v. Huskinson, 11 M. & W. 827 ; Bateman v. Bltick, 18 Q. B. 870, 21 L. J. Q. B. 406. (c) Be/ford v. Hai/nes, 7 U. C. Q. B. 464 ; Reo- v. Gordon, 6 U. C. C. P. 213 ; Jiev. V. O. W. R. Co.. 12 U. V. Q. B 251, per Robinson, C. J. (d) Rex V. AUan, 2 U. C. Q. B O. S. 102, per Macaulay, J. (c) Baslerack v. Atkinson. 2 Allen. 439. ( f) Reg. V. Hall, 17 U. C. C. P. 286, per J. Wilson, J. , NUISANCES TO HIGHWAYS. 215 a public highway under the 22 Vic. c. 54. (a) Where about fifteen years before the finding of the indictment the Township Council had built a bridge on the road, and expended money thereon, and statute labor had been done thereon : — Held, under the authority of s. 313, Con. 8tats. U. C, c. 54, it must be deemed a public high- way, (b) A party is punishable for non-performance of statute labour, and under Con. Stat. U. C. c. 55, s. 86, a warrant might have issued to imprison a person for non-perform- ance of statute labour without fii*st summoning him to an- swer or making a conviction, (c) To save himself from fine a party must when called upon, perform his stat- ute labour loithin the division of the township in which he resides, (d) It seems a person who has land in a township, but is not himself resident there, is not liable to be convicted for non-performance of statute labor in the township where the land lies, (e) Where the President and Board of Police at Cobourg, under the Cobourg Police Act is- sued a warrant for non-performance of statute labour, to imprison for the remainder of the penalty for twelve days absolutely, and not unless the fine and costs should be sooner paid, and after alleging summons, appearance, con- viction, and warrant of distress, averred that part of the sum directed to be levied had been made, and that the Plaintiff had no more goods : — Held, that the warrant to imprison was clearly bad, because it was after part of the fine had been paid, and was for an absolute time and not unless fine and costs be sooner paid. (J) (a) Reg. v. Hall, 17 U. C. C. P. 282, per J. Wilsoii, J. (fc) Prouse V. Oorporatiou Mariposa, 13 U. 0. C P. 500, (c) Meg. V. Morris, 21 U. C. Q. B. 392. " " (d) Gates v. Devcnish, G U C. Q. li. 200. (e) Moore v. Jarron, 9 U. C Q. B. 233. See (Ont ) 32 Vic. c. 36, s. 79-89. f) Trigersm v. Board of Police Cobourg, 6 U. C. Q. B. 0. S. 405. 21G CRIMINAL LAW OF CANADA. ^ Nuisances to highways are of two ohisses : positive, as by obstruction, and negative, by want ofsutHcient rex)ar- ation. A railway company by their charter were bound to re- store any highway intersected by their track " to its for- mei* state, or in a sufficient manner not to impair its use- fuhiess." They constructed their road across a street in the city of ILimilton, which was sixty-six feet wide, and connected the street again by a bridge across the track forty feet two inches in width. Being indicted for a nuisance in thus making the street narrower than be- fore, and the jury having found the facts above mention- .ed: — Held, that they might with propriety find this to be a sufficient comphance with the Act, and that the Del'cn- dants were not nevessarily guilty of a nuisance because the bridge was not of equal width with the street cross- ed, {(i) But where a railway company in passing over a high- way, had lowered the highway at the point of intersec- tion, so as to make it inconvenient and dangerous, this was held to be an indictable nuisance, {b) Where a street ran into a road allowance, but did not cross it, and the Defendants being incorporated under 16 Vic. c. 190 for gravelling the road, so far lowered the level in order to get the grade prescribed by the statute, as to make the approach from this street impassable : — Held, that they were justified in so doing, and not guilfy of a nuisance in obstructing the street, or obliged to restore the approach, (c) A fire lighted by a wheelwright for the purposes of his business, within fifty feet of the centre of the high- way, svich fire being fed by lifting a lid in the wall on the - (a) Reo. V. G. W. R. Co., 12 U. C. Q. B. 250. (b) Reu.w.O. T. R.Co.,n\].O.q,.ll.\m. . ■ ' "" (c) Rcj. V. W. a public nuisance, as respects the pubhc at large, and the company may be liable to an indict- ment therefor. («") ' ^ ,- (a) Rey. v. Mri/ers, 3 U. C. C. P. 321, per Macaiday, C. J. (b) -Jee Corporation Burleigh v. Hales, 27 U. C. Q. B. 72; Corporation Sarnia V. 0. W. R. Co , 2i U. C. Q. B. 64. ((•) Re<>. V. Corporation Paris, 12 U. C. C. P. 450, per Draper, C. J. ((/) /6. 445. (e) Carrirk v. Johnston, 26 U. C. Q. B. 65. (/) lb. 68, per Ha. ,. . ' (e) licri. V. Chipman, 1 Thomson, 292. , (/) 7>o(nj V. il/AW, IKerr, 311. ■ ' . ■■ iff) Whehnt V. licif. 28 U. (J. C^ B. 53, per A. Wilson, J. - =- - -- - INDICTMENT FOR NUISANCE. 233 Although a proceeding by indictment for a nuisance is criminal in form, the same evidence that would sup- port a ci\'il action for an injury arising from the nuisance will support the indictment, {a) In Reg V. Rose {b) it was held that the minutes of the boundary line Commissioners produced in the case could not be considered a judgment, within the meaning of 3 Yic. c. 11, and that the defendant should therefore have been permitted to give evidence contradicting such minutes The second section of this act which provides that every such judgment shall be tiled is directory only, and the omission to hie will not affect the validity of the judg- ment If the indictment allege a nuisance to be near a cer- tain lot, and the evidence shows it to be on it, this will be a fatal variance, (c) Such variance could probably now be amended under the 32 & 33 Vic, c. 29, s. 71. It was doubtful whether after an indictment for nuis- ance to a highway had been removed by certiorari, and tried at the Assizes upon a nisi prius record, and the de- fendants found guilty on a motion afterwards made in term for judgment, upon the conviction the Court could under the 19 Yic, c. 43, s. 31C, give judgment out of term, {d) After a verdict of acquittal on an indictment for nuis- ance in obstructing a highway tried at a court of Oyer and Terminer, the Court will refuse a certiorari to remove the indictment, with a view of applying for a new trial, or to stay the entry of judgment so that a new indictment may be prepared and tried without x>rejudice, and this though the motion is made on the part of the Crown with (a) Rqi. V. Stephens. 2 U C. L. J. N. S. 223, 14 W. R. 859. (b) lU. C. L. J. 14.5. (c) Ihii. V. Metiers, 3 IF. C. 0. P. 30.5. ((/) Re;i. V. G. T. P. Co., 17 U. C. Q. B. 165, per Robhmn, C. J. See 29 & 3(i Vic, c. 40. s. t, ctiicq. ., . 1 . , ■ ... , 234 CRIMINAL LAW OF CANADA. the assent of the Attorney-General, {a) But the Court will arrest the judgment on an indictment lor nuisance, so that a new indictment may be preferred, {b) After verdict oi' acquittal on an indictment lor nuisance tried at the Assizes, a motion was made with the concur- rence of the Attorney-G-eneral, for a certiorari to remove the indictment, with a view to obtain a new trial, but no ground was shewii by athdavit, and the new trial was moved for on the same day, being the fourth day of term : — Held, that there was nothing to warrant the or- dering of a certiorari, and that the motion for a new trial could not be entertained until the Court were in posses- sion of the record, {c) When the case is tried at the As- sizes the motion for a new trial need not be made within the first four days of the ensuhig term, for the rule of practice requiring a party to move for a new trial within the first four days of term only applies when the trial has been on a record emanating from this Court, (d) Ohstrucfing the Execution of Public Justice.— An indict- ment lor refusing to aid a constable in the execution of his duty, and to prevent an assault made upon him by persons in his custody, with intent to resist their lawful apprehension, need not shew th'it the apprehension was lawful, nor aver that the refusal was on the same day and year as the assault, or that the assault which the defen- dant refused to prevent was the same as that which the prisoner made upon the constable ; neither is it any ob- jection that the assault is alleged to have been made with intent to resist their lawful apprehension by persons al- ready in custody, (e) '•:, ' : ;;,..:! i. A magistrate's warrant of commitment upon a convic- («) Eeri. V. Whittier, 12 U. C. Q. B. 214. (b) R&j. V. Rose, 1 U. C. L. .T. 145 ; Reg. v. Spence, 11 U. C. Q. B. 31. -- ((•) Reg. V. Gzoivski, 14 U. C. Q. B. .591. • (d) lb. m2,\)tiv Robinson, Q. .^. -■■ ■ ' - ' '' (e) Reg. v. Sherlock, L. R. 1 C. C. R. 20 ; 35 L. J. (M. C.) 92. ^ OBSTRUCTING OFFICEUS OF JUSTICE. 235 tion for a penalty following the form given in 11 & 12 Vic, c. 43, Schedule (10,) and addressed "'To the consta- ble of D." can only be executed by the parish constable, and not by a county police constable, stationed at D. A conviction for wounding the county police constable in the execution of such a warrant, with intent to resist the prisoner's lawful apprehension thereunder, was therefore quashed, (a) But if the warrant had been specially di- rected to the police constable, or generally to all other constnbles and police officers of the division, the arrest would have beeii lawful, b) In an indictment for obstructing an olRcer of Excise, under 27 & 28 Vic, c. 3, the omission in the indictment of the averment that, at the time of the obttruction, the officer was acting in the discharge of his dutv, " under the authority of 27 & 28 Vic, c. 3," is not a defect of sub- stance, but a formal defect, which is cured by verdict, (c) Where the indictment is under ss. Ill and 112, for ob- struction by threats of force and violence, it is not neces- sary to set out the threats in the indictmeiit, for the gist of the olfence is not the meaning of the words, but the effect produced by them — namely, the obstruction, (d) A person resisting a constable in executing an execu- tion issued by a Justice of the Peace in the form K. in the schedule to the (N. B.) Rev. Stat., c 137, is liable to an indictment. (3) The fact that the defendant did not know that the per- son assaulted was a peace officer, or that he was actnig in the execution of his duty, furnishes no defence. (/) It is sufficient that the constable was actually in the ext cu- tion of his duty at the time of the assault, (g-) (a) Bet}. V. Sanders, L. R. 1 C. C. R. 75, 30 L. J. (M. C.) 87. (6) lb. 76, per Kel/y, C. B. (c) Spdman v. Ec(/. 13 L. C. .J. 154. (d) lb. 154, i)er Drummond, J. (e) Rtg.w. M'Donald,AA\{ti\\,AAO. . (f) Reg. V. Forbes, 10 Cox, 3C2. (y) lb. 23(j CRIMINAL LAW OF CANADA. Ueiusino^ to aid and assist a constable in the execution of his duty, in order to preserve the peace, is an indict- able misdemeanor at common law. In order to support such indictment, it must be proved that the constable saw a breach of the peace committed, that there was a reasonable necessity for calling- on the defendant for his assistance, and that, when duly called on to do so, the de- fendant, without any physical impossibility, or lawful excuse, refused to do so. It is no defence that the shigle aid of the defendant could have been of no avail, ((t) Before a party can be guilty of the offence of obstruct- ing an officer in the execution of his duty, the latter must be acting under a proper authority. (6) But if the process is regular, and executed by a proper officer, an obstruction, even by a peace officer, will be illegal, on the established principle that if one having a sufficient authority issue a lawful command, it is not in the power of any other, having an equal authority in the same respect, to issue a contrary command, as that w^ould legalize confusion and disorder, (c) Where an order was made by the Court of Quarter Sessions for payment of a sum of £169 16s. 6d. to F. iS., for professional services rendered as an attorney-at-law, and the Clerk of the Peace, contrary to his duty in the matter, refused to record the order, and also to draw up, sign, and deliver to the County Treasurer, an order for payment of such sum to Mr. S,, per Cockhurn, C. J., this amounted to a misdemeanor in office, and justified the removal of the Clerk of the Peace therefrom. But if the latter thought the Court of Quarter Sessions were doing something illegal and unjustifiable, and if he entertained a belief that, when their attention was called to it, the (a) JRcf/. V. B-oir7i, C. & Mur., .S14 ; Arch. Or. Pklg. 684-.'). (h) liiis.s. ("r. 570; Bex v. Omir, .5 Ea. ;i04. ((■) RusM. t'r. .571. -- -'- -. ?:scAPEs. 237 Court would rectify the error, it would l>o his duty to point out to the Court the mistake into which he sup- posed they had iallen, and a more delay or strong re- monstrance would not amount to a misdemeanor. But if, from the outset, he determines that, whether the Court agree with him or not, he will not comply with their order, or when he perseveres in disobedience to it, after he has brought the matter before them, he is guilty of a misdemeanor, (a) Disobeying an order made by Justices of the Peace, at their Sessions, in due exercise of the powers of their juris- diction, is an indictable offence, {b) And, on the same principle, if an Act of Parliament give power to the Queen in Council to make a certain order, and annexes no speciiic punishment to the disobeying it, such dis- obedience is nevertheless an indictable offence, punish- able as a misdemeanor at common law. {c) i^o disobedi- ence to an order of one or more Justices is an oU'ence punishable by indictment at common law. (d) Every person mentioned in the order, and required to act under it, should, upon its behig duly served upon him, lend hi. aid to carry it into elFect. (e) Escapes. — An escape is where one who is arrested gains his liberty, by his own act, or through the permission or negligence of others, before he is delivered by the course of the law. (/) If the escape is effected by the party himself, with force, it is usually called prison breach ; if effected by others, with force, it is commonly called a rescue, (g;) Tf a party in the custody of the law secure (a) Rer,. V. RusseU, 5 U. C. L. J. N. S. i;i2, per Cockhnrn, C. J. ; 17 W. R. 402. (b) Kusa. Cr. .573 ; Rex. v. Robinson, 2 Burr, 799-800. (c) Rsx V. Harris, \ T. R. 202; 2 Leach 549. (d) Rex. V. Balme, Cowp., 650; Rex v. Fearnleij, 1 T. R. 31G ; Reij. v. Gould, 1 Salk, 381 ; Russ. Cr. .')74. (e) lb. 57.5 ; Rex v. Gash. 1 Starkie, 41. (f) Russ. Cr. 581. (y) 76.581. - 238 CRIMINAL LAW OF CANADA. his own escape, thoug-h without ibrco, he is j?uilty of a hig-h contempt, and punishable by line and imprisonment, {a) If a prisoner go out through an open door of his gaol, without using any force or violence, he is guilty of a misdemeanor; and it seems any person aiding him in such escape is punishable as for a misdemeanor at coai- mon law. {h) In order that an ollicer may l)e lial)le for an escape, the party must be actually arrested, and legally imprisoned lor some criminal matter, (c) The imprison- ment must also be continuing at the time of the escape, and its continuance must be grounded on that satisfaction which the public justice demands for the crime com- mitted. {(I) A volnnlari/ escape is where an officer, having the custody of a prisoner, charged with and guilty of a capital oiience, knowingly gives him his liberty, with intent to save him either from his trial or execution. By this offence, the officer is involved in the guilt of the same crime of which the prisoner is guilty, and for which he was in custody. A nefrlig'ent escape is where the party arrested or im])risoned escapes against the will of him that arrests or imprisons him, and is not freshly pur- sued, and taken again, before he has been lost sight of, (e) In the case of a voluntary escape, the officer has no more right to re-take ihe prisoner than if he had never had him in his custody ; but in case of negligent escape if the party make I'resh pursuit, he may re-take the pri- soner at any time afterwards, whether he finds him in the same or a different county. One W. was brought before Magistrates, in the custody of the defendant, a constable, to answer a charge of mis- demeanor ; and after witnesses had been examined, he faj Russ. Cr. 281. (bj Russ. Cr. 581 ; Ee was verbally romaiidcd until the next day. Beinp then brought up again, and the examination concluded, the Justices decided to take bail, and send the case to the assizes. The prisoner said he could get bail, if he had time to send for them, and the Justice verbally remanded him until the following day, telling the defendant to bring him up then, to be committed or bailed. On that day, the defendant negligently i)ermitted him to escape, for which he was convicted: — Held that W. was not in the custody of the defendant merely for the purpose of enabling him to procure bail, but under the original warrant, and the matter still pending before the Magis- trates, until Ihially disi)Osed of by commitment to custody, or discharged on bail, and that the conviction was pro- per, (a) When a Sheriff refuses to produce a prisoner in his custody within twenty-four hours after notice, it is an escape, for which an action of debt will lie. (6) It is the duty of the Sheriff oi the county in which a city is, and not of the High Baililf of such city, to convey to the penitentiary prisoners sentenced at the Recorder's Court, {c) It seems that from the moment a prisoner is arrested, until he has actually expiated his offence by serving the full time of imi)risonment, he is in the custody of the law for the purposes of the foregoing offences and a person in any w^ay aiding in his escape, before full atonement made, ])ecomes particeps criminls. id) Prison breach seems now to be an offence of the same degree as that for which the party w^as confined, (e) Imprisonment is no more than a restraint of liberty, and {a) Rai. V. Shuttkic(yrth, 22 V. C. Q. B. 372. . , (6) Wrcm V. Jarvis, 4 U. C. Q. B. 0. S, 317. ^ .-^:,l ^-.- ., ./^ , - (c) Glass V. Wiut it must not be I'rom the necessity oi' an inevitable accident hap- pening' without the contrivance or fault of the prisoner, (r/) The Prison Act I8G0, 28 ik 29 Vic. c. 1 2G, s. 87, which prohibits the conveyance into any prison, with intent to facilitate- ihe <'scape of a prisoiujr, of certain articles or " any other article or thing," includes a crowbar under the latter words, (c) Par/ianienlary O/ffnres. — Memb(;rs of <>ither House of Parliament are not criminally liable for any statem(mts made in the House, nor for a conspiracy to mak*; such statem(ints. (f) An order for an attachment against a member of parliament is illegal and may be set aside though no proceedings have been taken upon it, by the issue of the process or otherwise, ('^'•j So the writ may he set aside bcdbre the d(dendant is actually arrest(;d upon it. (k) A member of parliament is not liable for the peiudty imposed by thti Con. IStat. Can. c. 3, s. 7, for sitting and voting without having the prop(;rty qualiiication requi- red by law. The penalty is oidy (!xigil)le hom a person whose incapacity to b(!come a member is decreed by s. .'3. and whose election is radically null and void.fi) Mem- bers of provincial parliaments are priviliged from arrest in civil cases for a period of forty days, after the. proro- <") UxwH. Ct. r>'.)2. (h) II,. -M. (<■) liix V. If'iHirdl, lluHH. & Uy. 158. {d) KiiHH. (Jr. rm. (r) lic'i. V. I'a>i,><:, \.. M. 1 f-'. i'. II. 27; .r> L. .J. (M. C.) 170. (/) Kr. iviHr WilKoa, li. K. 1 ^l H. '>1.\. (,lj Hn of his clcct'on to either parliaraent. (d) On motion lor a writ of hahea<^ mrpus to produce the body of a person claiming exemp- tion from arrest on the ground of the ])rivilege of parlia- ment, two papers purporting to be two indentures of election are not sufficient evidence of Ids being such member, to warrant the granting of the writ, [r.) Alter conviction for ])r(»ach of privileg(!, in case of libel, the court will not notice any defect in the warrant of commitment ( /') A prisoner committed by the House of Assem})ly to the Common Gaol "during pleasure " is discharged by prorogation. (//) (n) Warltororlli V. /Iniilton, 2 C'hr. Hep. 70 ; Rennk v. Rankin, 1 Allen, 020; Rli; <> \J. I,, il B. r>w. I'-J lir;/. V. (•iimJi/€, Kiiiivii ; but nen CiivilUer v. Miinro, 4 L. f!. R. 146. {i) III. Ttt>2, piT Itniiwi\ {). ,]. ; Iaiwi yVtilftlei/H cbmh, itUMH, & M., Wjfd, i'l) Ke Jk. if) lie Tr'irij, S. L. C A. 478. ill) fJx parte Monk, «• L. C. A. 120. 1' 242 (JRI.MINAL LXW OF CANADA. Courts ol" law cannot inquire; into the cnuso, ofcom- mitrnfiit by. either IIou.so oiParliunnMit, nor hail, nordis- ciiar;,''!' a [x'rson vvhfj i,s in cxticution by the jii(]j^ni(>iit oI' any otln^r irihunal ; yet il' the commitment should not i)rol'i'KS to he lor a contcmj)!, l)ut is cviddintly arhi- trary, unjust a)id contrary to every ])rinoip](; ol" posi- tiv(! law or natural justice, tin; court is not ojily corni)0- Lcnt hut )>ouiul to dischari^-e the party, {n) Th(! Courts liavo pov\ or to issue writs ol' JLihe^rs Corpus in matters ol' commitment hy <,'ith(;r House ol" Parlia- ment, and the (!ommitiuont may he examined ui)on the return to the writ. (6; The Statutes 12 Vi(;. c. 27 and 14 k \r Vic. 1, invest the House of Assembly with power to punish hy imprisonment a de])uty-returnini^- oflicer Tor midleasancf! and hroach ol" privilei>e. (r) (a) Ki: jifirl) Lavoie., Ti \,. (". II. ll!». (I,) lb. ('•J l>'. Aii'itJ^Eii. 24,S CHAPTER IV. OKFEiNX'ES A(iAINST TlIK PET? SON. Mvrder. — AVhcrc a jxtsoii ol' sound rncmory and dis- crciioii imliivviully kilh^lh any rcasonahlt! crciit.nrc in Ix;- in^-, ;ind under tin? Queen's peace, with niidice i\Um\- thou;.;lit, eillier express, or implied l>y Jaw, ilic oJI(;nce is murder, (a) Malici! is a ncMM'Ssary in^'^redient, in, and {\\{\ chiei'cliar- aeteristic ol', the crime ol murder. (/>; ^I'lie leo;i| sense* ol" lh(! word malice us applif^d to Iho crime ol" murder is somewhat, dilleKMit from th(^ ])opular acceptation ol' the t(;rm. AViien an act is attended with Ktich circumstances as are tli(> ordinary sym{)tomsora wicked, depraved and malignant spirit, a heart reu;-ardless of social duty, and d(dih(;rately l>ent uj)on mischief, the act is irialicious in th(! I(!iial s(!nse, (r) In fact, malice, in iJK le^-jd s(uis<', moans a wroni^Hul act done, intentionally, without just cauK(^ or excuse. (>J .-..M, It.; Andniinu, 11 U. (,'. ( '. P. 02, \>^ir Riclumh, ('. J. (c\ iJiiHS. (Ir. it'll. Id) MJiilifir V. M'/kan, ]'.'> \'. ('. Q. P.. M2, per Ilobinsun, C. J ; Poilcvin v. U'lnjaii, lU L. (.'. .J., 'J7, |«;r Jiadijlti/, J. (ej liuuH. (Jr. (J07. 244 CRIMINAL LAW OF CANADA. mind and formed design, and malice is implied by law from any deliberate cruel act committed by one person against another, however sudden, (a) On every charge of murder, where the act of killing is proved against the prisoner, the law^ presumes the fact to have been founded in malice, until the contrary ap- pears, {b) The onus of rebutting this presumption, by extracting facts on cross-examination or by direct testi- mony, lies on the prisoner, {c) Persons present at a homicide may be involved in dif- fiirent degrees of guilt ; for where knowledge of some fact is necessary to make a killing murder, those of a party who have the knowledge will be guilty of murder, and those who have it not of manslaughter only. A fel- onious participation in the act without a felonious parti- cipation in the design will not make murder. Thus if A. assault B. of malice, and they tight, and A.'s servant come in aid of his master, and B. be killed, A. is guilty of murder, but the servant, if he knew not of A.'s malice, is guilty of manslaughter only, {d) 1"he porson committing the crime must be a free agent, and not subject to actual force at the time the act is done. Thus if A. by force take the arm of B., in which is a weapon, and therewith kill C, A. is guilty of murder but not B. But a moral force, as a threat of duress or im- prisonment or even an assault to the peril of life is no le- gal excuse, (e) But if A. commit the act through an ir- responsible agent, as an idiot or lunatic, A. is guilty of murder as a principal. (/) Murder may be committed upon any person within (c ) Rush. Cr. CC7. (b) E«i. V. M'DoweH, 25 IT. C. Q. B. 112, i>er Draper, C.J. ; Reij. v. Atkimov, 17 U. vl. (). P. 304. per J. Wilson, J. (c) lb ; Kus8. Cr ()6y. (d ) lb. ; Ku8S. Cr. (i69. (c) lb. (f) lb. MURDER. 245 the Queen's peace ; and consequently to kill an alien en- emy within the kingdom, unless in the heat and actual exercise of war, is as much murder as to kill a regular- born British subject, (a) While an inl'ant is in its mother's womb, and until it is actually born, it is not considered such a person as can be killed within the description of murder, (h) If a w^o- man is quick with child and any person strike hr?r, whereby the child is killed, it is not murder or ma.'i- slaug'iter. By the 32 & 33 Vic, c. 20, s. 59, the unlaw- fully administering poison, or unlawfully using any in- strument, with intent to procure miscarriage, is made an offence of the degree of felony, and, by s. 60, whoever unlawfully supplies or procures any drugs or other nox- ious thing lor such purpose is guilty of a misdemeanor, A child must be actually born in a living state before it can be the subject of murder, (c) and the fact of its hav- ing breathed is not conclusive proof thereof. ((/) There must be an independent circulation in the child before it can be accounted alive, (e) But the fact of the child be- ing still connected with the mother by the umbilical cord will not prevent the killing from being murder. (/) The killing may be effected by shooting, poisoning, starving, drowning or any other form of death by which human nature may be overcome, {g') But there must be some external violence or corjforal damage to the party, and if a person, by working upon the fancy of another, or by harsh and unkind usage, puts him into such passion of grief or fear that he dies suddenly, or contracts some (a) Rue J (>. G70. (6> 76. 070 d. xeq. (<■) It. V. i'ouito„.r>vSi v. :m. id) E. V. Sellis, 7 (\ & T. 850 ; 1 ■Mood C. C. 8*)0 ; It. v. Vrutchhy, 7 C & P. 814. (c) Jl. V. Enoch, 5 ('. & P. S.W ; R v. Wrii/ht, 9 C. Sl P. 754 (f) R. \. Crutrhleii, napm ; Ji. v. Jitjeiea, 9 (J. & P. 25 ; E. v. TriUoe, 2 Mood. C. C. 200 ; Arcli. Cr. Pklg. G25-G. (gj Russ. C"r. G74. 210 CRIMINAL LAW OF CANADA. disease which causes his dealh, the killiu;^ is not such as the law can notice (a) No act whatsoever shall be adjudi^ed murder unless the person die within a year and a day from the time the stroke was received or cause of death administered, in the computation of which the whole day on which the stroke was administered is reckoned the iirst. (b) If a man has a disease which, in all likelihood, would terminate his life in a short time, and another gives him a wound or hurt which hastens his death, this will con- stitute murder, for to accelerate the death of a person is sufficient, (r) So if a man is wounded, and the wound turns to a g-angrene or fever from want of proper appli- cations or from neglect, and the man dies of the gangrene or fever, or if it becomes fatal from the refusal of the party to submit to a surgical operation ; {d) this is also such a killing as constitutes murder, but otherwise if the death of the party were caused by improper applications to the wound, and not by the wound itseli'. (e) If a person, whilst doing or attempting to do another act, undesignedly kill a man, if the act intended or at- tempted were a felony, the killing is murder ; if unlaw- ful but not amounting to felony, the killing is manslaugh- ter. If a man stab at A. and by accident strike and kill B. it is murder, (/) and if A., intending to murder B., shoot at and wound C. supposing him to be B., he is guilty of wounding C. with intent to murder him, for he intends to kill the person at whom he shoots, (g-) "When a man hat, received such a pro\'ocation as shows that his act was not the result of a cool, deliberate judg- (a) Russ. Cr. (i'l 4. (b) Unas. V.r 7tH). (c) Arch. (.'r. I'ld:,'. (325 ; 7?. v. Martin, .I C. & P. 130. (d) Jieeing asked, on cros.s-examination, il' he had examined the cavity of the head, might not such exami- nation have revealed some other cause of death ? he replied: "There might have been, but the probabilities are against it." It was contended that the Crdwn was bound to give the best evidence the case admitted of as to the cause of death, and that, in the present advanced state of medical science, the Crown should have placed itself, by medical examination of the brain, in a position to negative, be- yond all reasonable doubt, the hypothesis of death from any other cause than that alleged : — Held that the evi- dence was sufficient to justify a conviction, ib) It was formerly necessary, in an indictment for mur- der, to set forth the manner in which, or the means by which, the death of the deceased was caused ; and where an indictment charged the prisoner, being the mother of an infant of tender age, and unable to take care of itself, with feloniously placing it upon the shore of a river, in an exposed situation, where it w^as liable to foil into the w^ater, and abandoning it there, with intent that it should perish, by means of which exposure the child fell into (a) Rer,. V. FrctwcU, 9 U. C. L. J. 138 ; L. & C. 161 ; 31 I.. J. (M. C.) 145. b Mey. V. Downey, 13 L. C. J. 193. MUliDKH. 251 tho rivor, and was suflboatod Diid drownod, of which sutlocatioii, etc., the child died: — Tic hi ihi\\, to support the indictment, it was necessary to prove that the death was caused })y tlrowninj^ or suilocation. (a) The 3-2 k. U Vic, c. 20, s. 0, provide;.; that it shall not be necessary, in any indictment for murder or man- slau£iliter, to set forth the manner in which, or the means by which, the death ol the deceased was caused ; but it shall he sufUcient, in any indictment for murder, to charg-e that the defendant did reloniously, wilfully, and of his malice aforethought, kill and murder the deceased ; and it shall be sufficient, in any indictment ibr man- slaughter, to charge that the defendant did J'eloniously kill and slay the deceased. It is necessary, in an indictment for murder, to state that the act by which the death was occasioned was done feloniously, and especially that it was done of malice aforethought, and it must also be stated that the prisoner murdered the deceased, (b) The word " murde?'" in the indictment is emphatically a term of art, {c) and it would be insufficient, in an in- dictment for murder, to state that the party did wilfully, maliciously, and leloniously, stab and kill, because it is equally indispensable to use the artilicial term "murder" as it is to state that the offence w^as committed of " malice aforethought." The omission of either one of these ex- pressions would render the j)risoner liable to a conviction for manslaughter only, (d) In an indictment for wounding, with intent to murder, the oIFence must be charged to have been committed by the prisoner wilfully, maliciously, and of his malice afore- (a) Req. V. Fennetv/A AXXcn, 1.32. (i>) lie Arnterson, 11 U. C. V. P. C2, per Richards, G. J. See also ;;2 & :W Vic. c. 29, a. 27, an I Sched. A. (a lb. ()•». {d lb. 53. 252 CRIMINAL LAW OF CANADA. thought, and judgment will be arrested when the indict- ment is defective in this respect, (a) The punishment of murder is death, (b) C. 29 of this Act, s. lOG, et seq. prescribe the manner in which sentence of death is to be executed. Mans1aus;hter. — The general definition of manslaughter is the unlawful and felonious killing of another, without any malice, either express or implied, {c) It is of two kinds : — (\) Involuntary manslaughter, where a man doing au unlaioful act, not amounting to lelony, by acci- dent kills another, or where a man, by culpable neglect of a duty imposed upon him, is the cause of the death of of another. (2) Voluntary manslaughter is where, upon a sudden quarrel, two persons fight, and one of them kills the other, or where a man greatly provokes another, by some personal violence, etc., and the other imme- diately kills him. (d) Manslaughter is distinguished from murder in w^ant- ing the ingredient of malice ; and it may be generally stated that, where the circumstances negative the exist- ence of malice, in the legal sense, and the killing is un- lawful and felonious, it will amount to manslaughter. In a cas'e where the deceased, who complained of being robbed suddenly, and, without authority or license, entered the house where the prisoner lodged. The latter was in a bed-room below stairs, not armed with any deadly weapon, but having the fragment of a brick, and the back of a chair, in his hands. He then imme- diately retreated up stairs, and the deceased asked the prisoner, who was standing at the top ^f the stairs, if he had got his (deceased's) money, to which the prisoner (a) Kerr v. Jhg.. 2 Tlev. Critique, 2.S8. (h) 32 & 33 Vic. c. 20, s. 1. (c) Ke Andergjn, 11 U. C. C. P. 63, per Richards, J. {d) Arch. Cr. Pldg. 623. MANSLAUGHTER. 253 replied : " If you come bothering me about your money, I will do something to you," and immediately threw out of his hand a piece of iron, about four or five feet long, being the handle of a frying-pan, which struck the de- ceased on the head, and fractured his skull. The whole transaction occupied only a few seconds, and was done in passion. In the opinion of the Judges, this was only a case of manslaughter, (a) The general doctrine seems well established, that that which constitutes murder, when of malice aforethought, constitutes manslaughter when arising from culpable neghgence. (b) And it would seem that the doctrine of contributory negligence cannot apply so as to justify the prisoner, {c) It is culpable negligence for one who has a right to turn out horses on a common, intersected by public paths, which he knows are unenclosed, to turn out a vicious horse, knowing the propensities of the animal to kick, so that it may kick persons passing along or close to the paths on the common ; and where a child, standing upon a common, close to a public path, was kicked by a vicious horse so turned out, and death ensued, the prisoner, who turned him out, was held guilty of manslaughter. It would seem that if the child, at the time she was kicked, had been upon a part of the common more remote from the path, the prisoner's offence would have been the same, sed quaere as to this, {d) The case for the prosecution was that the deceased, being the domestic servant of the prisoner, who kept a lodging-house, had died in consequence of insufficient (a) Reg. v. Kennedy, 2 Thomson, 203. (h) Reg. v. Hughes, 3 U. C. L. J., 15o; 29 L. T. Kep. 266; Dears. & B. 248 ; 26 L. J. (M. C. ) 202. (c) See Reg. v. Dant, infra ; Ret,: v. Swindnll, 2 C. & K. 230 ; Reg. v. Hut- e, rob- bery, stabbing and the like, being all crimes which necessarily include an assault, a prisoner, if acquitted of the felony, can clearly be convicted of an assault, under this section, if the assault was included in and conduced to the felony ; and as the charge of either of these of- fences necessarily includes a charge of assault, he could be so convicted even, before the recent Act, without any charge of an assault in terms. But when we take mur- der and manslaughter, the bare charge of which does not show an assault, the prisoner may now be convicted of an assault under the recent Act though not charged in terms, if the evidence shews an assault committed, in attempting to commit the felony charged, or as parcel thereof. But you cannot bring a case within this Act, by aver- (a) Reg. v. Ganes, 22 U. C. C. P. 185 ; following Reg. v. Bird, 2 Den. C. C. 94 ; Reg. v. Dingman, 22 U. C. Q. B. 283. (6) Reg. y. Ganes, supra, (c) Reg. V. Dingman, supra. B 274 CRIMINAL LAW OF CANADA. riiiff an usHimlt in the indictment wliich is not included in, and parcel of, the felony charged. There can be no conviction of an assault, unconnected with the felony charged. The Act only dispenses with an express alle- gation of an assault ; where the felony is of such a na ture, that the mere charge of it is not also a charge of an assault, (a) Shooting with intent to murder involves an assault. (6) By the (N. B.) 12 Vie., c. 29, " whosoever shall ma- liciously by any means, manifesting a design to cause grievous bodily harm, attempt to cause grievous bodily harm to any other person, whether any bodily harm be caused to such person or not, shall be guilty of felony." An indictment charging the prisoner, with having mali- ciously assaulted J. M. and cut him with a knife, with intent to do bim grievous bodily harm, concluding contra formam statuit, was held bad, for the means used were not set out with such particularity, as necessarily to mani- fest the design, which constituted the felony, and there was no allegation following the words of the Act : — Held, also that the conviction could r.ot stand for an assault as the Act did not apply, where the indictment was defec- tive, but where the evidt.ice proved an assault under circumstances, not amounting to felony, (c) If the indictment does not charge a felony, including an assault, the prisoner cannot be convicted of an assault under art. 17 (d) Upon an indictment containing counts for assaulting and maliciously inflicting grievous bodily harm, and a count for a common assault, after evidence of grievous injuries inflicted by the prisoner, the Judge told the (a) See Beg. v. Dingman, 22 U. C. Q. B. 283 ; Beg. v. Bird, 2 Den. C. C. 94. b) Beg. V. Berw and Anderson, 4 U. C. P. R. 296, per Draper; C. J. c| Beg. V. Magee, 2 Alien, 14. ') lb. (6) ASHAULT ANP HATTKRY. 275 jury : there was evidciuM' to <^o to thorn of priovouK bo- dily harm, iind that the (luostion ol'wlu'th«»r tho priHoiior iiitciKlcd to iiillictsjfriovouH bodily harm did not ariso. The jury I'ound tho prisoner i^nilty of an aj^l«' lifty yurtlH off. No binlK woro in view. Tho two m«»u had alw.iy.s \u>on on i^ood torniH, and th«» gun wa« lircd, appanMitly, with tlu' intention of fright«'ning tho prosecutor away rather than Ihatof hurt- ing him. The prisoner was indicted lor the felony of wounding, with intent to do grievous |hodily harm, but was found guilty of thi^ miNdeineanor of uidawluUy wounding, within the almve section : — lle/if, that tlu'ro was proof of malice which justilied tho conviction of the prisoner, (a) The Con. Stats. Can. c. 1)1 s. 37, applied only to com- mon assaults, (b) No words of provocation whatever can amount *o an assault, (c) To constitute such an assault, as will juhtily moderate and reasonable violence in self-defence, there must be an attempt or oiler with force and violence to do a corporal hurt to another, as by striking him with or without a weapon, or presenting a gun at him, at such a distance to which tho guii will carry, or pointing a pitch fork at him, standing within reach of it, or by holding up one's fist at him, or by drawing a sword, and waving it in a menacing nianner. {d) Where some thirty persons, armed and riotously assem- bled in front of the plaintili's house, and apparently in the act of breaking into it, threatened to break into it, and assault, tar, feather and ride the plaintilf on a rail, it was held that though the plaintiff" believed they were going to break into his house for this purpose, yet he could not justify shooting at them with a pistol, without warning them to desist and depart, but such request to depart (a) Reg. v. Ward, L. R. 1 C. C. R. 356. (6) Re AfcKinnor, '2 U. C. L. J. N. S. 328, per A. WiUon, J. CcJ The Toronto .-'. V. A. R. 170. (d) lb. 178-9. AH8AULT AND HATTKKY. 277 would not hfive hoen nocoBsary, porhnps, if tho nprjrros- sors hud boon nctuiilly advaiicin*^ upon fh»' pluintiff. in the attitud*' o*" assauitinc^ him, and Htili h^^H if any of them had actually Ntruck him. {a) The law is properly oaroful to oxact that ppoplo shall not on tho mere api)rt'h(»nsion of violoncc, which is not im- mediately Ihreatened, resort to desperate means of defence and shed blood without necessity, though there rnay bo considerable provocation and some shew of violence, and, generally speaking, it must be left to the jury to as- certain as a fjuesiion of fact whether the means of resis- tance adoptt'd were justilied by the nature of tho attack. (b) If more force and violence boused than necessary to expel a parly from a house, after he has been request- ed, and refused to leave, it cannot be justilied, (c) Although a party may lawfully take hold of one who declines to leave his hDU.-.*- and j^ut him out, yet he has no right to beat him cruelly, not in order to make him go out, but to punish him for not going out. (d) Upon an indictment for assaulting a bailiff of a county court, in the execution of his duty, the production of a county court warrant for the apprehension of the pris- oner is sullicient justitication of the act of the bailiff, in apprehending the prisoner, without proof of the previous proceedings authorizing the warrant, (e) Moderate correction of a servant or scholar, by his master, is not an assault. A master has not by law^ a right to use force in the correction of any servant, but an apprentice ; the moderate correction of a servant, who ?'« an infant, may be justified. The })eating of a servant of full age cannot bo justified, and will form a sufHcient (a) Spires v. Barrick, 14 U. C. Q. B. 424, per Robinson, C. J. (I) lb. 424, pt'r Hobiiison, V,. J. (cj See Glass v. (rGmdi/, 17 U. C. 0. P. 233. (d) lb. 230, per J. Wilson, J ; Davis v. Lcnnon, 8 U. C. Q. B. 599. (f) Bea. V. Daiis, 8 U. C. L. J. 140 ; L. & C 04 ; 30 L. J. (M. C.) 159. 278 CRIMINAL LAW OF CANADA. cause or excuse for departure, or for discharge from ser- vice by a master, on complaint. Wounding, kicking and tearing a person's clothes do not fall within the scope of moderate correction, (a) School-masters have a right of moderate chastisement against disobedient and refractory scholars ; but it is a right which can only be exercised when necessary for the maintenance of school discipline and the interests of education, and to a degree propor- tioned to the nature of the offence committed. Any chastisement exceeding this limit, and springing from motives of caprice, anger or bad temper, constitutes an offence punishable like ordinary delicts, (b) On an indictment charging an aggravated assault, or an offence of a higher nature than an assault, but nevertheless including it, the prisoner may be found guilty of a common assault, for it is not necessary that matter of aggravation stated in the indictment should be proved and, if not proved, the prisoner may be found guilty of the offence without the circumstances of aggra- vation, (c) An indictment charged the prisoner, in the first count with " unlawfully, and maliciously wound- ing," and in the second count with unlawfully and ma- licously inflicting grievous bodily harm, the jury having found the prisoner guilty of an assault : — Held that the conviction was right, as the offences charged were mis- demeanors, and each of them necessarily included the lesser misdemeanor of an assault, (d) So a person, indicted for inflicting grievous bodily harm and actual bodily harm, may be convicted of a common assault, {e) A charge of assault and beating would be sustained by (a) Mitchell v. Defries, 2 U. C. Q. B. 430, per M'Lean, J. (b) Brisaon v. Lafonta'ne, 8 L. C. J. 173. (c) Rcfj. V. Taylor, L. R. 1 C C. R. 194 ; 38 L. J. (M. C.) 106. (d) lb. (e) Rvi. V. Oliver, 8 U. C. L. J. 55 ; Bell, 287 ; 30 L. J. (M. 0.) 12 ; Reg. v. Feot/on.'L. & C. 81 ; 31 L. J. (M. C.) 70. ASSAULT AND BATTERY. 279 proof of an aggravated assault, as the aggravation is merely matter of evidence, (a) This offence is a misdemeanor (6) and is so punish- able. The punishment usually inflicted is fine, imprison- ment and sureties to keep the peace, (c) The Court of Quarter Sessions has a general power to fine and imprison in a se of assault, (d) A charge of assaulting a bailiff" in the execution of his duty, being a misdemeanor, is triable at the Sessions, (e) An assault may, in certain cases, amount to a capital felony, when, it is apprehended, it could not be tried at the Sessions. An assault may be accompanied by vio- lence from which death ensues, and then the offence w6uld be either murder or manslaughter. Or an assault may be accompanied with a violation of the person of a woman against her will, in which case it would be a rape, or, though the purpose was not effected, the cir- cumstances might be such as to leave no doubt of an as- sault with intent to commit a rape, therefore an assault may amount to a capital felonj^ or a felony, or misde- meanor, according to the circumstances with which it is accompanied, (f) On motion to quash a conviction for an assault made by two Justices of the County of Norfolk', H was held that, stating the offence to have been committed at the defendant's place in the Township of Townsend was suf- ficient, for the Con. Stats. U. C, c. 3, s. 1, ss. 37, shewed that township to be within the County of Norfolk, of which county the convicting Magistrates were two of the Justices, and being a public statute, the Court would notice it judici- (rt) Ke M'Kinnon, 2 IT. C. L. J. N. S. 329, per A. Wilsmu J. (bj See Reg. v. Tayhr, L. R. 1 C. C. R. 194. (c) Ovena v. Taylor, 19 U. C. C. P. 52, per Hagarty, J. td) 76.49. (e) Reg. v. Came, 8 L. C. J. 281. (/) M'Curdy v. »wift, 17 U. C. C. P. 139, per A. Wilson, J 280 CRIMINAL LAW OF CANADA. ally ; also that it was unnecessary to shew on the face ol the conviction that complainant prayed the Magistrates to proceed summarily, for s. 1 of the Con. Stats. Can., c 103, applied to the case, and s. 50 authorized a form of conviction which had been followed precisely, and if there was no such request, and therefore no jurisdiction, it should have been shewn by affidavit, (a) It was also held in this case that it was clearly no objection that the assault was not alleged to be unlawful. (6) But it has been held in Quebec that a conviction for assault will be quashed, if there is nothing to shew that the assault was made unlawfully, (c) (a> Reg. v Shaw, 23 U. C. Q. B. G'G. (6) Tb (c) Ex parte Hohlen, G L. C. R. 481. See JBf,7. v. M'Donald, 4 Allen 440, a^ to conviction for assaultin;,' a ccistabl'i in the execution of liis duty. BURGLARY. 281 CHAPTER V OFFENCES AOAINST PROPERTY. Burglary. — Burglary has been defined to be, a break- ing and entering the mansion house of another in the night, with intent to commit some felony within the same, whether such felonious intent be executed or not. (a) Both a breaking and entering are necessary to complete the ofience, and every entrance into the house, in the na- ture of a mere trespass, is not sufficient. Thus if a man enter into a house by a door or window which he finds open, or through a hole which was made there before, and steal goods, or draw goods out of the house through such door, window, or hole, ho will not be guilty of bur- glary, {b) There must either be an actual breaking of some part of the house, in efiecting which more or less actual force is employed, or a breaking by construction of laW; ,vhere an entrance is obtained by threats, fraud, or conspiracy, (c) An actual breaking of the house may be by making a hole in the wall ; by forcing open the door ; by putting back, picking or opening the lock with a false key ; by breaking the window ; by taking a pane of glass out ol the window, either by taking out the nails oi other fast- ening, or by drawing or bending them back, or by put- (a) 2 Rubs. Cr. 1. (6) Ih. 2. (c) lb. 2. 282 CRLMINAL LAW OF CANADA. ting back the leaf of a window with an instrument, and even the drawing or lifting of a latch, (a) Where the door is not otherwise fastened, the turning of the key where the door is locked on the inside, or the unloosing any other fastening which the owner has provid- ed will amount to a breaking, (b) If a man enters by a door or window which he finds open, or through a hole which was made there before, it- is not burglary, (c) Where an entry was effected by taking out the glass from a door it was holden to be burglary, (d) and where the defendant pulled down the sash of a window which had no ifi.stening, and was only kept in its place by the pulley- weight, it was holden to be burglary, although there was an outer shutter which was not put to. (e) So where he raised a sash window which was shut down close but not fastened, though it had a hasp which might have been fastened. (/) And where a window opening upon hinges and fastened with wedges, but so that, by pushing against it, it could be opened, was opened, it was holden to be burglary, (g-) So where a party thrust his arm through the broken pane of a window, and in doing so broke some more of the paae, and thus got at and removed the fastening of the window and opened it, it was holden to be a sufficient breaking, (h) Lifting up the flap of a cellar usually kept down by its own weight is a sufficient breaking for the purpose of burglary, (e) If a window be partly open, but not sufficiently to admit a («) 2 Russ. Cr. 2-3 ; Rex. v. Oweii, 1 Leivin, 35 per Bayley, J. ; Rex v. Law- rence, 4 C. & P. 231 ; Rex v. Jordan, 7 C & P. 432. (b) 2 Russ. Cr. 3. (c) Ih. 2 ; and see Rex. v. Lewis, 2 C. & P. 628 ; R. v. Spi'i()(js, 1 M. & Rob. 357. (d\ R. V. Smith, R. & R. 417. (c) R. V. Haines, R. & R. 451. (/■) R. V. Hiiums, 7 C. & P. 441. (g) R. V. Hall, R. & R. .355. (b) R. V. Robinson, 1 Mood. C. C. 377. R. V. Russell, 1 Mood C. C. 377. BURGLARY. 283 person, the raising of it so as to admit a person is not a breaking of the house, (a) It is burglary if a man obtain entrance to a house by means of the chimney, for though open it is as much closed as the nature of the structure will admit, (b) But an entry through a hole in the roof is not biirglary, for a chimney is a necessary opening and requires protection, whereas if a man choose to have a hole in the wall or roof of his house, instead of a fastened window, he must take the consequences, (c) As to a breaking by fraud, where an act is done in fraudem legis the law gives no benefit to the party, so that if thieves obtain entrance, under pretence of busi- ness, as to arrest a suspected person or the like, if the other ingredients are also in the offence, it will amount to burglary, {d) It is also burglary if the entrance is obtained by con- spiracy, as if A., the servant of B., conspire with C. to let him in to rob B., and accordingly A. in the night time opens the door and lets him in, it is burglary in both, [e) But if a servant, pretending to agree with a robber, open the door and let him in for the purpose of detecting and apprehending him, this is no burglary for the door is lawfully open. (/) There may also be a breaking in law where, in conse- quence of violence commenced or threatened, the owner, either from apprehension of the violence, or with a view to repel it, opens the door through which the thief enters, {g) With respect to the entry, any, even the least entry, either with the whole or any part of the body, (a) R. V. Smith, 1 Mood. C. C. 178 ; Arch. Cr. Pldg. 497. (I) 2 Russ. Cr. 4 ; Rex v. Brice, R. & R. 450. (c) Rex V. Spriggs, 1 M. & Rob. 357. (d) 2 Russ. Cr. 9. (e) lb. 10. (/ Reu. V. Johnson, C. &. Mar. 218. ( 2 Russ Cr. 8. 284 CRIMINAL LAW OF CANADA. hand or foot, or with any instniment or weapon intro- duced for the purpose of comniitting a felony, will be sufficient, (a) The 32 & 33 Vic, c. 21, s. 53, renders it a felony to enter any dwelling-house in the night, with intent to commit any felony therein, and thus dispenses with proof of a breaking under this clause. S. 50 provides that whosoever enters the dwelling-house of another, with in- tent to commit any felony therein, or being in such dwell- ing-house commits any felony therein, and, in either case, breaks out of the said dwelling-house in the night, is guilty of burglary. Every house for the dwelling and habitation of man is taken to be a dwelling-house in which burglary may be committed; (6) and this dwelling-house formerly included the out-houses, such as ware-houses, barns, stables, cow- houses, or dairy-houses, though not under the same roof or joining contiguous to the dwelling-house, provided they were parcel thereof. But now the 32 & 33 Vic, c. 21, s. 52, enacts that such houses shall not be considered part of the dwelling-house for the purpose of burglary, unless there be a communication between such building and dwelling-hous ., either immediate or by means of a covered and enclosed passage leading from one to the other, (c) Unless the owner has taken possession of the house, by inhabiting it personally or by some one of his family, it will not have become his dwelling-house as applied to the offence of burglary, (d) But the occasional or temporary absence of the owner will not prevent it from being his dwelling-house, (e) How- fa) 2 Rues. Cr. 11. ; See R. v. Davis, R. & R. 499; R. v. Bailey, R. & R. 341. (6) 2 Rnss. Cr. 1.5. (c) See Re(/. v. Burrmves, 1 Mood. C. C. 274 ; Reg. v. Higgs, 2 C. & K. 322 ; Reg. V. Jenkins, R. & R. 224. (d) 2 lluss. Cr. 21. (f) 2 Russ. Cr. 23. BURGLARY. 285 ever, in these cases there must be an intention, on tho part of the owner, to return to his house, animus revertendi. {a) As to the time of committing the offence, it is settled that in the daytime there can be no burglary, (b) If a house is entered in the daytime it is house-breaking and not burglary. By the ti'2 k 33 Vic, c. 21, s. 1, it is enact- ed that so far as regards the oHence of burglary the night shall be considered to commence at 9 o'clock in the even- ing of each day, and end at six o'clock in the morning of the next succeeding day. The breaking and entering need not be both in the same night, provided the breaking be with intent to enter, aiid the entry with intent to commit a felony, (c) B at the breaking and entry must both be committed in the night time. If the breaking be in the day and the entering in the night, or the breaking in the night and the entering in the day, it is no burglary, {d) As to the intent, the offence must be with intent to com- mit some felony within the house, w^hether such feloni- ous intent be executed or not, (e) and when the breaking is a breaking out of the dwelling-house in the night there must have been a previous entry with intent to commit a felony, or an actual committing of a felony in such dwelling-house. If the entry were only for the purpose of committing a trespass, the offence will not be burglary. But if a felony be committed, the act will be prima facie pregnant evidence of an intent to commit it (f) And it is a gene- ral rule that a man who commits one sort of felony, in (a) 2 Russ. Cr. 23; 4 Bla. Com. 225. [h) 4 Bla. Com. 224. Xc) R. V. Smith, R. & R. 417. See R. v. Sordan, 7 C. & P. 432 ; Arch Cr. Pldg. 490. ((/) 76. (e) Ante p. 281. ( f) See R. V. Locost, Kel. 30. 28G CRIMINAL LAW OF CANADA. attempting to commit anothor, cannot excuse himself on the ground that he did not intend the commission of that particular oHence. {nt takiim, luid ciirryinu' away, by any pcrHon, of th«? hut*' pcrHonal goods dI' uiioUut, with a lelonious int«Mit to (convert thorn to hJH (tlif taker's) own use, and make them his own property, without the con- sent ol' the owner, (b) The poods taken must, in the ab.scnce ol' any express statutable enactment, be fwrsunat goods, lor none otlier can be the subject ol" larceny at common law. (c) Bonds^ bills, etc., being mere chases in action, are not the subject of larceny at common law, for they are of no intriasic value, (d) The 32 & 33 Vic, c. 21, s. IT), el seq. now alters the law in this respect. Section 16 contains provisions as to the form of the indictment under it. By s, 18, it is not neces- sary to allege that the article, in respect to which the offence is committed, is the property of any person. A party cannot commit larceny of a bond made by another person to himself, and, especially, he could not be guilty of larceny in stealing a bond from the obligor, because a bond in the hands of the obligor could be of no value to him, as a bond, under any possible circum- stances; and when the 2 Greo. 2, c, 25, was in force, no other than a bond for the payment of money could be the subject of larceny, (e) Certificates treated and dealt with on the London Stock Exchange, as scrip of a foreign railway, are " valu- able security" within the 7 & 8 Geo, 4, c. 29, s. 5, and the subject of larceny. (/) On an indictment for stealing a piece of paper, the de- la) Cr. Law Comrs. 3rd Rep. (h) Reg. v. M'Grath, L. l\ 1 C. C. R., 209, per Kelly, C. B. ; 39 L. J, (M. C.) 7. (c) Arch. Cr. Pldg. 316. \d) lb. 317. (e) Caverley v. Caverleu, 3 U. C. Q. B. 0. S. 341, per Robinson, C. J. (/) Reg. V. Smith, 2 U. C. L. J. 59 ; Dears. C. C. 561. l.AKCKNY. 291 fondnnf ronld not, ))o convicted ot'Ntonlinir nn ncrroomont, thouyli uuHti uipjul, lor l»uilinain with her, and IVoni their inahilily to escape, are practically under the dominion and in the ])ower oi' the owner ol' the hen, may be the subject of larceny, thoui^h the hen is not con- fined in a coop, or otherwise, l)ut allowed to wander with her brood about the premises oi' he^ owner, (r) Dogs not being the subject of larceny at common law, are not chattels within 7 &- 8 Geo. 4, c. 1;0, s. 53. (d) There is no absol ite property in animals ferrn naltirfF, but only a special or qualilied right of property — a right I'utioni soli to take and kill them ; and when killed upon the soil, they become the absolute property of the owner of the soil. When the thing is not, in its original state, the subject of larceny, it is necessary that the act of taking should not be one continuous act with the act of severance, or other act, by which the thing becomes the subject of larceny, (e) Where poachers, of whom the prisoner was one, wrong- fully killed a number of rabbits upon land belonging to the Crown, and placed the rabbits in a ditch upon the same land, some of the rabbits in bags and some strapped to- gether ; they had no intention to abandon the wrongful possession of the rabbits which they had acquired by (a) Reg. v. Watts, Dears. 326 ; 23 L. J. (M. C.) 56. See now .32 & 33 Vic. c. 21. 8. 15. (b) Arch. Cr. Pldg. 318. (c) Reg. V. Shickle, L. R. 1 C. C. R. 158; 38 1^. J. (M. C.) 21 ; Reg. v. Cory, 10 Cox. 23 followed. (dj Reg. v. Robinson, 5 U. C. L. J. 143 ; Bell, 34 ; 28 L. J. (M. C.) 58. ( e) Reg. v. Townley, Ii. R. 1 C. C. R. 317, per BoviU, (J. J, 292 CRIMINAL LAW OF t 'ANA DA. takinpf thom, but placed them in the ditch as a place ol' deposit till thoy could conveniently remove them ; about thre(} hours al'terwardK i\ni prisoners came back and be- gan to r(nnovo the ra})f)its : — Jleld, that the takinji- oi' the rab})its and the removal of them was one continuous act, and that the removal was therfilbre not larccniy. (a) But if the goods vest in the owner, in the interval between the severance and the removal, i( is larceny. (/>) Potatoes severed irom the soil, or dug and in pits, arc clearly the subject ol" larceny, (c) The distinction })etw('en grand and pc^tty larceny has been abolished, and now all larcenies, whatever \h\ the value of the pro))erty stoh^i, shall be deemed to be of the same nature, and shall \n' subject to the same incidents in all resp(!cts as grand larceny was beibre the distinction between grand and petty larceny was abolished, {d) There must be an actual or constructiv(^ lakinff ol' the goods, on the ground that larceny includes a trespass.f'c^ There must also be a r.arnjin^^ away ; but, as the felony lies in the very first act of removing the property, the least removing of the thing taken from th(! place where it was beibre, with intent to steal it, is a sullicient aspor- tation. (/") To constitute larceny, there must be an animus furandi : i. e. a felonious int(int to take the property of another against his will. The essence of the offence is knowing- ly taking the goods of another against his will, (g) If the goods were taken with the consent of the owner then the property would pass, and according to a distinction (a) n&j. V. Townlcy, L. R. 1 C. C. R. 315. (I) ib. 318, j)er UramweU, B. (c) Hunter v. Hunter, 25 U. C. C^. B. 146, per Harjarty, J. (d) 32 & 33 Vic. c. 21, h. 2. (e) 2 RuHs. Cr. 152. (/) Ih. See al8o Itei/. v. TovmJey, L. R. 1 (!. C. R. 319, per litackburn, J. iy) Ilea. V. M'(hath, L. R. 1 C. C. R.. 210-11, per Blackburn, J, ; see lierj. v. Prince, L. R. I C. C. R. l.W : 38 L. J. (M. C.) 8. LARCENY. 293 to })(3 aftorwards pointcnl out, it would not bo larceny ; and W not tak(^n loloniouKly tho takinj^ would amount only to a hare tresspass. It is clear that tho takinii" must be animo furandl and lucri canad. Thus where the prisoner's ^oods were seized under warrants of execution ola County Court, and were in possession ol'a })ailifr, and the prisoner, with intent to dejnive the bailill" as h(^ supposed, of his authority, and so dei'eat the execution, forcibly took the warrants from him, without any intent otherwir^e to make use of them, it was held that the prisoner was not guilty of larcen)^(a) But in such case the prisoner would be guilty ot taking the warrants i'or a fraudulent purpose, within the mean- ing of the 32 & 33 Vic, c. 21, s. 18, by which the stealing of any records is made i'elony. (6) Returning the goods may 1)0 evidence to negative the animus J'urandi at the time of taking them, but it is node- fence that the prisoner intended to return them when taken, (c) Where the prisoner, having broken open a plate chest, of which he was l)ailee for safe custody, and pawned the contents, was tried for the simple larceny, the jury found him guilty, but recommended him to mercy, "believing that he intended ultimately to return the property " : — Held, that the conviction must be sus- tained, ibr upon the i'acts there was evidence of larceny, and it did not appear from the recommendation to mercy that the jury believed that the prisoner, at the precise time when he took the property, intended to return it. (d) As to larceny of lost property, the general rule seems to be that if a man iind goods that have been actually fa) Ik!/. V. liailei/, I.. R. 1 (I V,. R. :547. («-) IIj. {(■) Seu lie;/. V. CummiTxjH, 4 U. ('. Ti. J. 189, per Sprapffe, V. C ; Ren. v. rrebi'cork, i U. C. L. J. 108; Duurs. & H. 45.'j; 27 li. J. (M. C.) 10.3. ((/) Ke'j. V. TrehUcork, supra. 294 CRIMINAL LAW OF CANADA. lost, or are reasonably supposed by him to have been lost, and appropriates them, with intent to take the entire do- minion over them, really believing, when he takes them, that the owner cannot be found, it is not larceny : but if he takes the m with the like intent, though lost or reason- ably supposed to be lost, but reasonably believing that the owner can be found, it is larceny, (a) It is necessary that the prisoner, at the time of linding, should believe that the owner can be ascertained, and without this, an intention to appropriate, at the time of the finding, will not make the prisoner guilty of larceny, though he ascer- tain the name of the owner before converting to his own use. The prisoner found a sovereign in the highway, be- lieving at the time that it had been accidentally lost, but nevertheless with a knowledge that he was doing wrong, he at once determined to appropriate it, though it should afterwards become known to him w^ho the owner was. There was no evidence to shew that the prisoner be- lieved he could ascertain who the true owner was, at the time he found the sovereign : — Held, that the prisoner was not guilty of larceny. (6) In all cases of larceny of lost property the question turns on what were the prisoner's grounds for believing that the goods w^ere abandoned, (c) But there is a dis- tinction between property which is lost or abandoned, and that which is only mislaid. If property is abandoned, any one may acquire a right against the owner, (d) and, acquiring the property by a lawful title in the first in- stance, he cannot be guilty of larceny. As above ex- plained, a person may, in certain cases, acquire a lawful (a) Rey. v. Thurborn, 1 Den. 388; 2 C. & K. 831; 18 L. J. (M. C.)140; affirmed in Her/, v. G/i/de, L. R. 1 C. C. R. 139; 37 L. J. (M. C.) 107. (6) Ite(/. V. Gh/de, supra, (c) lb. 144, per Cockburn, C. J. {d) See Ecr/. v. Glyde, supra. LARCENY. 295 title to lost property, and cannot, therefore, be found guilty of larceny. But if property is only mislaid or left in some place of deposit or security, a person fraudu- lently appropriating it is guilty of larceny, A pur haser at the prisoner's stall left his purse in it. A strargt, pointed out the purse to the prisoner, suppos- ing it to be hers, and reproved her for carelessness, when she put it in her pocket, and afterwards concealed it, and on the return of the owner denied all knowledge of it. Upon the indictment for larceny, the jury found that the prisoner took up the purse, knowing it was not her own, and intending at that time to appropriate it to her own use, but that when she took it she did not know who was the owner. Whereupon she was convicted: — Hf'd, that the conviction was proper, and that the purse so left was not lost property, (a) But the prisoner must, at the time of finding, have the means of ascertaining who the owner is, or reasonably believe that he can be found, and must also have the in- tention of appropriating the property to his own use. Upon an indictment for stealing a note, it was found by the jury that the note was lost by the prosecutor and found by the prisoner. There was no evidence that the note had any name or other mark upon it indicating to whom it belonged, nor was there evidence of any other circumstances which would disclose to the prisoner, at the time when he found it, the means of discovering the owner : — Held, that he could not be convicted of larceny, although the jury, being asked whether, at or after the time of finding, he believed that there was not a reason- able probability that the owner could be found, had answered that he did believe the owner could be traced, {b) (a) Reg. v. West, 1 U. C. L. J. 17 ; Dears. 402 ; 24 L. J. (M. C.) 4. (b) Reg. V. Dixon, 2 U. C. L. J. 19; Dears. 580; 25 L. J. (M. C.) 39. 29G CRIMINAL LA^ OB^ CANADA. In order to convict the finder of lost property of lar- ceny, it is essential that there should be evidence of a felonious intention to appropriate the property at the time of iinding ; and evidence of a subsequent intention is insufficient. Upon the trial of the finder of a purse for larceny, the jury were directed that a felonious intent was necessary in every larceny ; but that it might be inferred, from subsequent as well as immediate acts, and that, if they were satisfied that the prisoner heard the landlady of a public-house, where he subsequently went, speaking of the loss, and then did not take measures to make restitu- tion, they might infer a felonious intention : — Held that the direction was wrong, as it was calculated to mislead the jury to suppose that a felonious intent, subsequent to the finding, was sufficient, (a) In this case, it was submitted that the nature of the property was such that the finder could not do otherwise than believe that the owner might be found, and that, having converted it to his own use, under these circum- stances, it might be inferred that it was his intention to do so at the time of finding. The inference was dis- allowed by Pollock^ C. B., on considering all the con- comitants of the case. A post letter, directed to J, D., containing a r«.st-Office order, was misdelivered to J. D., one of the prisoners. He took it to W. D., the other priisoner, who read it to him. Upon hearing it read, he said the letter and order were not for him. "VV. D. advised him, notwithstanding, to keep the letter, and get the money. Both prisoners accordingly applied at the Post-Office, and obtained the money : — Held that a conviction of the prisoners for steal- ing the order must be set aside. (6) From this case (a) Reg. V. Christopher, 5 U. C. L. J. 143 ; Bell, 27 ; 28 L. J. (M. C.) 35. (b) Rey. V. Danes, 2 U. C. L. J. 137 ; Dears. 640 ; 2.5 I.. J. M. C. 91. LARCENY. ' 297 it would seem that the law of larceny, in respect of articles found and appropriated by the finder, after he has ascertained what the article is, and the marks of ownership, is inapplicable to a misdelivered post letter. Now, by the 32 <& 33 Vic, c. 21, s. 72, in case of lar- ceny by persons employed in the public service, the pro- perty maybe laid in Her Majesty, or in the municipality, as the case may be. It has bev^n already stated that every larceny involves a trespass, and that the taking must be animo furandi and invito domini. If the possession of the goods is law- fully obtained, there can be no larceny, nor can there be any larceny if the property in the goods is divested. The property in goods can only pass by a contract, which requires the assent of two minds ; but it is of the essence of the offence of larceny that the i:)roperty be obtained against the will of the owner. If, therefore, the owner intends to part with the property, by virtue of which in- tention the property would pass, there can be no larceny, however fraudulent the means by which the property is obtained. But if there was a sufficient false pretence, the party might be guilty of obtaining the goods by false pretences. Where the possession is lawfully obtained, a conver- sion, while it continues, ordinarily amounts to the cog- nate offence of embezzlement. ''■"'his rule may be laid down, that when the prosecutor does not intend to part with the right of property in the goods or money taken by the defendant, and, in some cases, does not intend to part with the possession of them until they are paid for, and the defendant fraudulently gets possession of them, contrary to the intention of the owner, intending all the time not to pay for them, then the jury may find the party guilty of larceny. But where 298 CRIMINAL LAW OF CANADA. the owner voluntarily parts with the possession and pro- perty in the goods, and intends to vest them in the de- fendant, because he relies upon the defendant's promise to pay the money, or bring other property or money in place of those vested in him, then the prisoner cannot be convicted of larceny, (a) The above points may be fully established by reference to decided cases. Where a servant is entrusted with his master's pro- perty, with a general or absolute authority to act for his master in his business, and is induced, by fraud, to part with his master's property, the person who is guilty of the fraud, and so obtains the property, is guilty of obtain- ing it by false pretences, and not of larceny, because, to constitute larceny, there must be a taking against the will of the owner, or of the owner's servant, duly autho- rized to act generally for the owner. But where a ser- vant has no such general or absolute authority from his master, but is merely entrusted with the possession of his goods for a special or limited purpose, and is tricked out of that possession by fraud, the person who is guilty of the fraud, and so obtains the property, is guilty of lar- ceny, because the servant has no authority to part with the property in the goods, except to fulhl the special purpose for which they were entrusted to him. (b) If the owner intended the property to pass, though he would not so have intended had he known the real facts, that is sufficient to prevent the obtaining another's property from amounting to larceny. Where a servant has an authority co-equal with his master, and sufficient to enable him to pass his master's property, and he parts with it accordingly, such property cannot be said to be stolen, inasmuch as the servant in- (a) Reg. v. Berths, 13 U. C. C. P. 610, per Richards, C. J. {h) Reg. v. Prince, L. R. 1 C. C. fl. 150 ; 38 L. J. (M. C.) 8. LAIU'KNY. '29U lends to part with tho property, (a) In such caso, it can- not be said to be parted with against the will of the owner, (b) The cashier ol' a bank is a servant havinpc a general authority to conduct the business of the bank, and to part with its property, on the presentation of a genuine order from a customer ; and if he is deceived by a forged order, and parts with the money of the bank, he parts intending' to do so with the property in the money ; and the person knowingly presenting such forged order is guilty of obtaining the money by false pretences, and not of larceny, (c) The 32 & 33 Vic, c. 21, s. 93, has amended the law on this X)oint. The subtle distinction between these offences, which this Act intended to remedy, was, that if a person, by fraud, induced another to part with the possession only of goods, and converted them to his own use, this was larceny; while, if he induced another, by fraud, to part with the property in the goods, as well as the pos- session, this was not larceny, (d) The prisoner, with another man, went into the shop of the prosecutrix, and asked for a pennyworth of sweet- meats, for which he put down a florin. The prosecutrix put it into the money drawer, and put down sixpence in silver, and fivepence in copper, in change, which the prisoner took up. The other man said, " You need not have changed," and threw dowm a penny, which the prisoner took up, and the latter then put down a six- pence in silver, and sixpence in copper, on the counter, saying, "Here, mistress, give me a shilling for this." The prosecutrix took a shilling out of the money drawer, and (a) Reg. v. Prince. L. R. 1 0. C. R. 155, per Blackhwn, J. {h) lb. 154, -per Bovill, C. J. (c) Rco V. PvxTtCB suiyvct [d) Reg. v. Kilham, L. R. 1 C. C, R, 263, per Bovill, C. J. 3(H) CRIMINAL LAW OF CANADA. put it on the counter, when th{» prisoner said to her, " You may as well give me the two-shilling piece, and take it all." The prosecutrix took I'rom the money drawer the llorin she had received from the prisoner, and put that on the counter, expecting she was to receive two shillings ol" the prisoner's money in exchange for it. The prisoner took up the llorin, and the prosecutrix took up the silver sixpence, and the sixpence in copper, put down by the prisoner, and also the shilling put down by herself, and was patting them into the money drawer, when she said she had only got one shilling's worth of the prisoner's money ; but at that moment the prisoner's companion drew away her attention, and, before she could speak, the prisoner pushed his companion by the shoulder, and both went out of the shop : — Held that the transaction was not complete, and that the property in the llorin had not passed to or revested in the prisoner, and, on that ground, he was rightly convicted of lar- ceny, (rt) A. acted as auctioneer at a mock auction. He knocked down some cloth for 26s. to B., who had not bid for it, as A. knew. B. refused to take the cloth, or to pay for it, and A. refused to allow her to leave the room unless she paid. Ultimately, she paid the 26s, to A., and took the cloth. iShe paid the 26s. because she was afraid. A. was indicted for, and convicted of feloniously stealing these 26s. : — Held that the conviction was right, because, if the force used to B. made the taking a robbery, all the elements of larceny w^ere included in that crime. If the force was not suffici^ nt to constitute a robbery, the taking of the money, nevertheless, amounted to larceny, as B. paid the money to A. against her will, and because she was afraid : — Held, further, that, under the circ^^mstance8, (a) Reo. V. M'Kale, L. R. 1 C. C. R. 125 ; 37 I.. J. (M. C.) 97. LARCENY. 301 it was not necessary that the jury should bo asked whether B. paid the money against her will, as, from the evidence stated in the case, it was clear that there could have been no doubt in the minds oi" the jury that the money was so paid, (a) A. & 13., by false representations, induced C. to become the purchaser of a dress for 25s. They then took one guinea out of her hand, she being taken by surprise, and neither consenting nor resisting, and left with her a dress of considerably inferior value, but refused to give her one, which they had promised to give, if she would buy that. Upon a case reserved, the question put was, whether the facts warranted a verdict of guilty of lar- ceny : — Held, that they did, the Court being bound to assume that it was part of the fraud to obtain the pro- perty by a false sale ; and, if so, there was no contract, but a fraud, whereby the felony was committed. (6) A quantity of wheat, not the property of the prosecu- tors, having been cousigned to their care, was deposited in one of their storehouses, under the care of a servant, E., who had authority to deliver only to the orders of the prosecutors, or C, their managing clerk. The prisoner, a servant of the prosecutors, at another storehouse, by re- presentation to E. that he had been sent by C. for some of the wheat and was to take it to the Brighton Railway, which representation was entirely false, obtained the key from E., and was allowed to remove live quarters, which he subsequently disposed of for his own use, the prisoner assisting to put the five quarters into the cart, in which it was conveyed away, and going with it : — Held, upon the facts above, that the prisoner was guilty of larceny ; for the wheat was delivered to the prisoner (a) n&j. V. M'Grath, L. R. 1 C. C. R. 20.5; 39 L. J. (M. C.) 7. (i) Beg. V. Morgan, 1 U. C. L. J. 37 ; Dears, 395, 302 rillMIN'AI, F,AVV OF CANADA. for a special purimso, iiamoly, to bo taken to tho Hrinhtoii Railway, aiul tln> property remaiiuvl in tho prosecutors fhroULi'hout, as baiKn's. (a) It is essential to larceny that there be the intention to divest the owner's firo/icrfi/ by wronq" ; where, therelbre, the servants of a £»loveniaker broke open a storeroom (»n their master's premises, and removed to another room, in the same premises, a quantity oilinished j^loves, with the intent of fraudulently obtainin*>- payment for them, as for so many gloves iinished by themselves : — Held, that they were not guilty of larceny, (b) Where a man, having tho animus furandi obtains, in pursuance thereol', possession of tho goods by some trick or artifice, the owner not intending to part with his en- tire right of property, but with the temporary possession only, this ir considered such a taking as to constitute larceny, {c) It was the course of business at a colliery, where coal was sold by retail, to take the carts, when loaded, to a weighing machine in the colliery yard, whore they were weighed, and the price of the coal paid. The pri- soner having gone to the colliery with a fraudulent intent, a servant of the prosecutor, upon the prisoner saying ho wanted a load of the best soft coal, loaded prisoner's cart with soft coal, and went away, leaving him to take it to be weighed and pay for it. The prisoner, then fraudulent- ly covered over the soft coal with slack, an inferior coal, and by this trick, and by saying that the coal in the cart was slack, induced the weighing clerk, who did not know that the cart contained the soft coal, to weigh it as slack, and charge the prisoner accordingly : — Held, that the prisoner had obtained possession of the soft coal by a (a) Rey. v. Robins, 1 U. C. L. J. 17 ; Dears. C. C. 418. (b) Rey. V. Poo e, 4 U. C. L. J. 73 ; 27 L. J. (M. C.) 53 ; Dears. & B. 345. (c) Arch, Cr. Pldg. 333. LAUCENY. 808 trick and that ho was proporly convicted ol" larceny, (a) A policeman, late at ni«>hl, met the prowecutor, who haaol, I'or he was under a penalty ol'-tl. lor talking- to a protstitute in the street ; but il'he would •••ive him 5 shillin^H, he niiu;ht ^o alnmt his business. The prosecutor i^ave him 4s. Od , but, while he was seiirchini;' lor the other ik\., the inspector came. It was held to be no answer to the charge, that all the money had not been obtahied. Theollence was a lar- ceny, and was also a menace within the meaning of the Act. (6) A porter was employed by the vendor of goods to de- liver them to the vendee, but had no authority to receive the money for them. The vendee, however, voluntarily, and without solicitation, paid the porter for the goods. The porter came back to the vendee, and pointed out that he had been paid short, and received the balance. He subsequently converted the money to his own use : — Held, {Lefroij^ C. J., dissentiente) that a conviction for larceny was not sustainable, (c) The ground of the decision, in this case, would seem to be that the porter obtained possession of the money lawfully. Bailment has been deKned to be the giving of any property to any person, for any purpose whatever, (d) In the case of bailment or contract of hiring, it must have been made to appear that the animus furandi existed at the time of receiving the chattel, and was not induced by anything that happened afterwards, (e) But if the (a) Reg. v. Bramley, 7 U. C. L. J. 331 ; L. & C. 21. (b) Reg. V. Robertson, 11 L. T. Rep. N. S. 387 ; L. & C. 483 ; 34 L. J. (M. 0.) 35. See also Reg. v. Ewing, 21 U. C. Q. B. .523, as to what constitutes larceny. (c) Reg. V. Wheeler, 14 W. R. 848. (d) Reg. v. Lebauf, 9 I<. C. J. 247, per Drummond, J. (e) Peate v. M*Atoon, 1 Kerr. 116, per Parker, J. 304 CRIMINAL LAW OF CANADA. circumstaiiooR iiulioatod an intention, at tho timo of oh- tainiuir tho chattel rriiuduloiitly, to coiiv«»rt it to the party's own UHo, it would havo boon larcony. {a) It in conceived that by, tho 82 i. v. Riley, Dears, 149 ; 22 L. J. (M. C.) 48.; Arch. Cr. Pld^. 340. (c ) R. V. Hoare, 1 F. & F. 647 ; R. v. Oarrett, 2 F. & F. 14 ; R. v. Hamll, L. & C. 58 ; 80 L. J. (M. C.) 175. (dj Reg. v. Daviea, 14 W. R. 679 ; 10, Cox 239. LAIU'KNY. 305 Can., c. 02, s. 65, and that ho was proporly convictod on an indictment lor larceny, in the ordinary form, (a) Where the lesset^ ol'a pawn hcHh it, thin does not con- stitute larceny, under the above clause, (b) A., the proprietor of a quantity ofhroom-corn, delivered it to H., under the ai^reenu'iit that when 1}. should have manufactured it into hrooniH, he should not sell them but that A.'s clerk should sell them on A.'s account ; that A, should deduct his advances from the ])roceeds of the sale of the brooms, and II. should have the balance. B. supplied the smaller material requisite in working up the broom-corn into brooms. IJ. did not keep his agree- ment with A., but manufactur(Hl the brooms and con- verted them to his own use : — Jle/d, that A.'s delivery of the broom-corn to B. was a l)ailm('nt to him, and that B.'s fraudulently converting' it to his own use was larceny, in the terms of Con. Stats. Can., c. 92, s. 55. (r) Upon an indictment for stealing money, the property of certain persons (composing the iirm of the American Express Company,) it appeared in evidence that the agent of the Express Company in St. Mary's delivered two parcels contahiing $888.22, which had been sent from Montreal by one K., addressed to E. & S. at St. Mary's, to the prisoner to deliver, and that he appropriated them to his own use. The prisoner was employed as a carrier from the Railway Station at St. Mary's to that village, and did the business of the company in that capacity, but he derived his remuneration from the persons to whom he delivered the parcels, and the company paid him nothing for his services, but employed him to give him an oppor- tunity of making what he could out of the carriage of parcels, believing he was a trustworthy man, On the (o) Rcff. V. Tweedy, 23 U. C. Q. B. 120. (6) Gould V. Cowan, 17 L. C. R. 46. (c) Beg. V. Lebceuf, 9 L. C. J. 245. 300 CRIMINAL LAW OF CANADA. trial at the Court of Quarter Sessions, the counsel for the Crown asked the agent of the company "when the liability of the company ceased." The prisoner's counsel objected that this question should not be allowed, being- matter of law and not of fact. Upon appeal to this Court, it was held that the question was objectionable in the shape in which it was put, but that the enquiry aimed at was material to shew whether the company had undertaken to deliver the parcels, for if so, the prisoner would then be a servant set apart for that purpose, and the company would continue the bailee of the parcels until their delivery. Secondly, that it was a question for the jury to say, whether the contract of the company with K. was to de- liver the parcels to E. & S., and, if so, that the property in the money was properly laid in the indictment. Thirdly, that if the undertaking was to deliver the money to E. &} S., the prisoner was the agent of the company for that purpose ; and fourthly, that money is property of which a person can be bailee, so as to make him guilty of felony if he appropriates it to his own use. (a) Upon an indictment for embezzlement, it appeared that the prisoner alone conducted an office in connection with a branch Bank, and that his salary included his ser- vices and the providing of the office in his own house, where he carried on another business. The expense of fitting up the office was borne by the bank, who pro- vided an iron safe, their property, into which it was the prisoner's duty to put at night any money received dur- ing the day. The manager of the branch bank kept one key and the prisoner the other. It was the prisoner's duty to receive money and put it to customers' accounts with the branch, and pay checks on the branch. He fur- la) Beg. V. Massey, 13 U. C. C. P. 484. LARCKNV. 307 iiished to tho manager a weekly account, and it was his duty to pay over weekly to the manager the excess not required at the office. He also received moneys occa- sionally, when required i'rom the branch, which were en- tered in his weekly accounts. In September. 1855, his accounts were audited, and his cash counted and Ibund correct, but, although for two years alterwards he fur- nished the weekly accounts, no examination was made' during" that time of the balances appearing from them to be in his hands. In September, 1857, the manager of the branch having appointed a time for examining the cash in hand, the prisoner said he was very sorry he was about £3,000 short in cash, and handed over all the cash he said was left, amounting to £755, 10, which he took from a drawer in the counter and not from the safe. He subsequently, also, admitted in writing that he had taken the amounts appearing in his weekly return of Septem- ber 12, 1857, entered as a deficiency of £8,021, 9, 9. The Judge advised the jury to convict of larceny, if satisfied that any part of the sum had, at any time during the two years, been taken from the money sent by tha branch, or from the money which, having been received from customers, had been placed in the safe and includ(}d in the weekly accounts, and the jury found the prisoner guilty of larceny, as a clerk in having stolen some money received from customers, which had been placed in the safe and made the subject of a weekly account, but that they did not liiid that he had stolen any of the money sent from the branch : — Held, that the conviction was right ; that there was evidence to go to the jury of lar- ceny, as it w^as to be assumed that the prisoner did his duty in putting the money received from customers dur- ing the day into the safe at night ; that his exclusive pos- session of such money would then be determined, and 308 CRIMINAL LAW OF CANADA. the taking be larceny, and that the finding that the pris- oner stole " some money " was sufficiently certain, (a) It seems that a married woman may be a bailee with- in 32 & 33 Vic, c. 21, s. ^.(b) If the goods of the husband be taken with the consent or privity of the wife it is not larceny, (c) A. and B, took the goods of a husband without his consent, and with the intent to deprive him absolutely of his property in them, but with the consent and privity of the wife. There was no evidence that the wife had committed, or intended to commit, adultery with either of them : — Held, that inasmuch as it was not left to the jury to say which was the principal in taking the goods, the wife or the strangers, it must be considered that the wife took them, and that the strangers assisted, in which case no larceny was committed, (d) The prisoner was indicted for stealing certain chat- tels from his master, while in his employment. Tt was proved that he went off with his master's wife, ani- mo adulterii, and knowingly took his master's property with him. It was objected for the prisoner that he was acting under the control of his mistress, who could not be charged with stealing from her husband, and that, therefore, the charge could not be sustained. He was, however, convicted, and the Court sustained the convic- tion, (e) A servant and a bailee, at common law, are in a diffe- rent positio 1, for a bailee has the possession of the goods entrusted to him, a servant only the custody, (f) A ser- vant, therefore, not having the lawful possession of his (a) Rea v. Wright, 4 U. C. L. J. 167 ; Dears. & B. 431 ; 27 L. J. (M. C.) 65. \h) Reg. V. Robson, L. & C. 93 ; 31 L. J. (M. C.) 22 ; Arch. Cr. Pldg. 341. (c) R y ffarrigon, 1 Leach, 47 ; Reg. v. Avery, 6 U. C. L.J. 215 ; Bell, 150 28L.J.'(M. C.)185. Id) Reg. v. Avery, supra. (t) T^Mutter8,% W. R. 326 ; L. & C. 511 ; 34 L. J. (M. C.) 54. (fj Reg. V. Cooke, L. R. 1 C. C. R. 300, per Bovill, C. J. LARCENY. 309 master's goods, may be guilty of larceny in feloniously appropriating them. A servant, whose duty it was to pay his master's work- men, and, for this purpose, to obtain the necessary money from his master's cashier, fraudulently represented to the cashier that the wages due to one of the workmen were larger than they really were, and so obtained from him a larger sum than was, in fact, necessary to pay the work- men. He did this, intending at the time to appropriate the balance to his own use. Out of the sum so received, he paid the workmen the wages really due to them, and appropriated the balance to his own use ; - Held, that, whether the obtaining the money in the first instance was larceny, or obtaining the money by false pretences, the money, while it remained in the prisoner's custody, was the property and in the possession of the master, the prisoner being the servant of the latter, and therefore the appropriation of it by the prisoner wns larceny. («) Where corn is delivered to a miller to grind, yet if he steals the meal, this is felony, being taken from the resi- due, (b ) The wrongful conversion of yarn entrusted to a weaver to make into cloth, is not larceny y^er se ; neither was it an act of embezzlement, under the 4 & 5 Vic, c. 25, or by any of the English Acts from which that Statute was derived, even when accompanied with a criminal inten- tion ; but it would seem that the separation of one part of the yarn from the parcel delivered, with a felonious intent, would be larceny at common law. (c) A., a shareholder in an unincorporated company, and acting as its agent, gave a promissory note, at one month, to B., another shareholder, for i?250, to meet a protested (a) Reg. v. Cooke, L. R. 1 C. C. R. 295. (6) Young v. Sloan, 2 U. C. C. P. 288, per MacauJay, C. .T. (c) lb. 2yi, per Sullivan, J. 310 CRIMINAL LAW OF CANADA. draft on tho company for $200. A. afterwards .stated, at a meeting' of the committee of management of the company, that he gave the note for $250, })eoanse 13. told him that M., a broker, had discounted the note for $50 ; and that he (B.) could not get it discounted for a less sum. B. himself stated at the meeting that he had been obliued to pay M. th«^ $50 for discounting the note; and that M. had entrusted him with the collection of it, upon which representations he obtained from the treasurer of the company the money to pay the note. It was afterwards discovered that M. had never discounted the note, and that, shortly after the note was paid, B. himself admitted that it was he, and not M. w^ho had discounted it, and that he had charged $50 for doing so. "Whereupon both A. and B. were convicted on an indict- ment for obtaining, by false pretences, the ^50, the money of D. and others, the shareholders in the company, wuth intent to defraud : — Held, that the conviction was bad, and that this did not constitute a false pretence under the 4 & 5 Vic, c. 25, s. 45, nor under the 18 Vic, c, 92, s. 12, and that a shareholder in such company cannot com- mit larceny from the company, nor be guilty of obtaining money by false pretences, inasmuch as, being a share- holder, he is joint owner of the funds and property of the company, (a) The Police Court of the City of Toronto is a Court of Justice within the 32 & 33 Vic, c 21, s. 18, and an in- dictment charging the stealing " a certain information made and subscribed by one J. M.," at the Police Court of the said city, etc., shew^s an offence, within the mean- ing of the Statute, {h) Maliciously destroying an information or record of the said Court is felony within the same Act. («) Beq. V. St. Louis, 10 L. C. R. 34. (6) Jle(/. V. Mason, 32 U. C. Q. B. 24G. LARCENY. 311 An indictment, describing an ofTenco within this sec- tion as I'elonionsly stealing- an inCormation taken in a ]^olice Court, is sufficient after verdict, (a) The Con. Stat. Can., c. 92, s. 20, did not make it an offence to steal an authentic copy of an ade or deed passed before a notary, (h) A party could not be prosecuted, under the 4 & 5 Vic, c. 25, s. 34, for stealing- fruit, "growing in a garden," un- less the bough of the tree upon which the fruit was hang- ing was ivithin the garden. It was not sufficient that the root of the tree w^as within the garden, (c) In estimating the amount of the injury, under the 32 &, 33 Vic, c. 21, s. 21, the injury done to two or more trees may be added together, provided the trees are damaged at one and the same time, or so nearly at the same time as to form one continuous transaction, {d) Before the passing of the 32 & 33 Vic, c. 21, ss. 5 and 6, it w^as necessary that there should be a separate indictment for each act of larceny, or the prosecutor must have proved that the articles were all taken at the same time, or at several times so near to each other as to form parts of one continuing transaction, otherwise the Court would have j)ut the prosecutor to elect for which act of larceny he would proceed, (e) The only difference created by this Statute is, that three different acts may now be proved on one indictment for larceny, instead of, as formerly, only one. The law, which decides whether there are several acts, or only one, is the same as before that Statute. (/) Before the Act is applicable, it must be established (rt) iJev. V. Maxon, ;V2 U. C. Q. B. 24(5. (h) Rcq. V. M'Ginnis, 7 L. C. J. 311. ((•) M-Donald, v. Cameron, 4 U. C. Q. B. 1. See 32 & 33 Vic. c. 21, s. 26. ((/) Reij. V. Shepherd, L. R. 1 C. C. R. 118 ; 37 L. J. (M. C.) 45. (e) Eey. v. Smith, lly. & M. 295 ; Arch. Cr. Pldg. 315. tj) Iteij. V. Firth, L. 11. 1 C. C. R. 175, per Bovill, C. J. 312 CRIMINAL LAW OF CANADA. that there were takings at different times, which can be so calcukited that it may be *hewn that there is six months from the first to the last of such takings. It is only in these cases that any question arises about elec- tion. Before the act, if the takings were continuous, there was only one taking, and if there were several takings, the prisoner could only be convicted on one of them, (a) And this is still the law. (6) A. stole gas for the use of a manufactory, by means of a pipe, which drew off the gas from the main, without allowing it to pass through the meter. The giis from this pipe was burned every day, and turned off at night. The pipe was never closed at its junction with the main, and, consequently, always remahied full of gas : — Held that, as the pipe always remained full, there was, in fact, a continuous taking of the gas, and not a series of sepa- rate takings ; and, even if the pipe had not been thus kept full, the taking would have been continuous, as it was substantially all one transaction, {c) An indictment for larceny, drawn up according to the the form given by the Con. Stats. Can., c. 99, s. 51, was held valid in arrest of judgment, notwithstanding objec- tion that the value of the articles stolen was not alleged, nor was it stated that they were of any value, nor were they alleged to be the property of any person, [d] The species of coin, or the nature of the bank notes, need not be alleged in any indictment for the larceny of money, (e) On an indictment for stealing money, the property, etc., of A. B., against the form of the Statute, etc., it need not ia) Reg. v. Firth, L. R. 1 (I C. R. 175, per Bovill, C. J. ; Reg. v. Bkasdale, 2 C. & K. 765. (b) lb. per Bovill, C. J. (cj Rcif. V. Firth, L. R. 1 C. C. R. 172 ; 38 L. J. (M. C.) 54. (d) lie'g. V. Dor ion, 8 L. C. J. 281. (e) Reg. Driscoll, 8 L. C. J 288. LARCENY. 313 be proved at the trial that the bank notes which the prisoner is accused of stealing-, nor any one of them, are or is genuine, nor need the value of the notes be proved, nor that any money was due on them, and remaining unsatisfied. Nor need the existence of the banks, whose notes are pretended to have been issued, be proved. Nor is it any objection that the evidence shews that the money stolen was bank notes, if anything at all, whilst the in- dictment charged theft of coin, (a) An indictment under the corresponding English sec- tion {b) of the 32 & 38 Vic, c. 21, s. 15, for stealing a valu- able security, must particularize the kind of valuable security stolen, and any material variance between the description in the indictment and the evidence, if not amended, will be fatal, (c) If, upon an indictment for stealing as the servant of the prosecutor, money alleged to be his property, it ap- pears, from the evidence, that the prisoner stole the money from him, but that he was not his servant, the allegation in the indictment that he was his servant may be rejected as surplusage, and the prisoner may be con- victed of simple larceny, (d) >- An indictment charging the prisoner, with stealing bank notes " of the moneys, goods, and chattels of one J. B.," sufhciently lays the property in the notes as the words, " moneys, goods, and chattels " may be rejected as surplusage, and the indictment would then read " bank notes of one J. B." (e) As stealing bank notes is expressly made larceny, their legal character, as chattels or other- wise, is not in question, because stealing them eo nomine is made felony. (/") (a) Reg. v. DriscoU, 8 L. C. J. 288. {b) 24 & 25 Vic, c. 96, s. 27. (cj Reij. V. Lowrie, L. R. 1 C. C. R. 61 ; 36 L. J. (M. C.) 24. Cd) Bet;, v. Jennin the act of om])ozzlomoiit was not committed on rocoipl oi' tho money, but upon the non-accountiujLi; and non-pay- ment oi" it : — Held, that tho prisoner might l)e properly charged with embezzling the weekly aggregates — that three acts of embezzlement of such weekly aggregates, within six months, might be charged and proved under one indictment, and that evidence of the small sums received during each week was admissible, to shew how the weekly aggregates w^ere made up. {a) Jkit if a man receives a number of small sums, and has to account for each of them separately, only three in- 8tance3 of failure to account can be proved under one indictment. In the a])ove case, the prisoner might have been indicted for embezzling any of tho separate small sums received by him. (b) The 32 & 33 Vic, c. 29, s 25, does not justify an alle- gation in an indictment of the embezzlement of money when a cheque only has been embezzled, and there is no proof that the prisoner has even cashed it. (c) But if the cheque is turned into money, the prisoner may be in- dicted for embezzling the money; and, upon such indict- ment, the embezzlement of the cheque, and conversion of it into money, may be shewn, or the prisoner may be indicted for the embezzlement of the cheque, {d) In Reg. V. Bullock, (e) it w^as held, under the facts shewn in the case, that the money was not improperly charged to be the money of the County of Essex, though it was received for the Township of Maidstone, within the county, and was to be accounted for to it by the county ; for, from the moment of payment, the county (a) Reg. v. Balls, L. R 1 C. C. R. 328. {h) lb. 3.'}2-3, per Covkburn, C. J. (c) Iie{/. V. Kecna, L. R. 1 C. C. R. 113 ; .37 L. J. (M. C.) 43. " ^ Id) lb. 114, per Cockburn, C. J. (e) 19 U. C. Q. B. 513 ; ante. 320-1. ' . MHO CiUMINAL LAW OF CANAI/A. waH rospousibl(« lor tho money, and liiul a special pro- perty ill it. A p(>r8on who is nominated and elected assistant-over- seer, under the 59 Geo. 3, c. 12, s. 7, by the inhabitants ol" a parish in vestry, and who is afterwards appointed as.sistunt overseer by the warrant ot two Justices, and performs the duties of an overseer, is well described in an indictment for embezzlement as the servant of the inhal)itants of the parish, (a) It has been held that the form of indictment, given by the Con. Stats Can., c. 99, s. 51, was only applicable to embezzlement under c. 92, s. 42. (b) The Legislature did not intend to frame a form of in- dictment for embezzlement which should be univ^ersally applicable, but only to furnish the form of indictment lor one species of embezzlement, as a model upon which indictments for other species of embezzlement might be framed, (c), The form of indictment " did feloniously embezzle " shews it is inapplicable to embezzlement when a misde- meanor ; and it would seem, from these words, that the Ibrm is applicable to embezzlement as a substantive felony, {d) Embezzlement, not being a substantive ofl'ence known to the common law, like larceny, but existing by statute, and some rendering it a felonious stealing, others simply felonious, and others a misdemeanor only, the meaning of the form is doubtful, (e) But only one species of em- bezzlement is contemplated, because the form follows the statutory description of one species of embezzle- (a) Refi. V. Carpenter, L. R. 1 C. C. R. 29 ; 35 L. J. (M. C.) 169. ib) Hoi. v. CummiiK/s, 4 U. C. L. J. 182 (in E. & A.) (r) P> 183, per Blake, Ch. ((/) Ib. 184, per Draper, C. J. (c) lb, 188, i)er Macau'ay,C. J. EMUKZZI.KMKNT. 3.T1 ment. (a) It would seem that the I'orm piven by the 82 k 33 Vic. c. 20, p. 200, is only applicable to an embezzle- ment under c. 21, s. 70. Under an ordinary indictment lor larceny, the em- bezzlement of money received by a clerk or servant, lor or on account ol' his employer, and fraudulently con- verted while in tra/isitN, cannot be proved; and although the Act on which the indictment is framed makes the embezzlement within it a larceny, it is necessary to charge the oH'once specially in the terms of it as against the Statute, and not at common law, it not being a com- mon law ollence ; and an indictment under the 32 & 3o Vic, c. 21, 8. 70, is not sustained in evidence by proof ol a larceny at common law. (b) In an indictment for embezzlement, where the ollence relates to any money, or any valual)le security, it shall be sufficient to allege the embezzlement to be of money, without specifying any particular coin or valuable secu- rity; and such allegation, so far as regards the descrip- tion of the property, shall be sustained by proof of the embezzlement of any amount, although the particular species of coin, or valuable security, of which such amount was composed, is not proved, etc. (c) Upon an indictment for embezzlement under the Con. Stats. Can., c. 92, s. 42, it must have appeared in evidence that the defendant received the money, etc., " by virtue of his employment." ('^y^ S. 70 of the 32 & 33 Vic, c. 21, omits the words " by virtue of such employment," and, therefore, if a man pay a servant money for his master, and the servant embezzles it, the case will be within the present enactment, although (rt) Reg. V. Cummings, 4 U. C. L. J. 184, per Spraqge, V. C. (b) lb. m,nev Macaulaij, C. J. (c) 32 k 33 Vic, c. 21, a. 73. See R. v. Hall, 3 Stark, 67 ; R. & R. 403. {<() See Reg. v. Thorley, 1 Mood C. C. 343 ; iJ. v. Hawtin, 7 0. & P. 281 ; R. V. Mellish, R. & E. 80 ; R. v. Snoioley, 4 C. & P. 390. 832 t'llIMINAL LAW OF CANADA. it wiiH nrosont or past fact, and a promissory pretence to do an act is not within the Statute, (h) The prisoner, in company wilhoiu> 1)., whoso note ho held, came to the stortj of II. and F., where an aii-reement was entered into between tlu^ parties that D. would pay for all the i^oods furnished by II. and F. to the prisoner, on the amount being- endorsed on his (D.'s) note held by Ihe prisoner. The prisoner called several times at II. and F.'s with the note mentioned, o])tained goods and had the amount endorsed on the note. In July, 1803, he called without the note and induced H. and F. to let him have goods, saying " he would bring down the note and have the amount endorsed in a day or two." The day alter the prisoner met D., and told him to pay nothing to II. and F. beyond what he would lind indorsed on the note, alleging that he had got some goods but it was '' in his own book." The prisoner did not afterwards present the note, in fuliilment of his promise, to have the amount endorsed thereon. The jury found that when the goods were obtained from H. and F. the prisoner did not in- tend to bring the note, or to pay for the goods. The pris- oner having been indicted at the Quarter Sessions and found guilty, judgment was postponed and the case re- served under Con. Stats. U. C, c. 112, for the opinion of this Court : — Reld, that the conviction must be annulled, as there was no false representation or pretence of an exist- (a) Reg. v. Pickup, 10 L. C. J. 312, per Duval, C. J. Red. V. Gcmmcll, 2G U. C. C^. ' ~ Reps. N. S. 643 ; 10 Cox. 44. (M Re'o. V. Gemm'cU, 2G U. C. C^. B."314, per Hagarti/, J. ; Reg. v. Oiks, 11 L. T. '■ " - ~ ■ 334 CHIMINAL LAW OF CANADA. in ; .31 L. J. (M. (). 1 146. (d) Ih. ; Reg. v. Lee, 23, U. (). Q. B. 3-10, per Ua/jarty, J. FALSK I'KKTKNCES. 33."> tcnco ; it must be the motive oporatinj^ in his mind and inducini^ him to i)ait with the money. If the mo^iey is parted with from a desire to secure the conviction oi" the piisoner, it will not be an obtaining'- by false pretences. («) (Jn an indictment for obtaininj^ moiKjy by false pre- tences it ap^xjared that G-., the prisoner, and another were in a boat on the Bay, at Toronto, and the pros(!Cutor, M., agreed with them to take him to my defendant and concurred in ])y C. That the pro- perty was parted with under tho sij^reement in writing", ;ind the d<'fendant could not )>e held liable; when the prosecutor consented to the property passing Irom him, under quite a difH^rent arrangement from that out of which th(; false pretence arose, (a) An indictment for obtaining from A. $1200 by false pretences, is not supported by proof of obtaining A.'s promissory note for that sum, which A. afterwards paid before; maturity, inasmuch as it was an engagement or promise to pay at a future date, and, though remotely, the payment arose; from the false pretence ; yet imme- diately and directly it was made, because the prosecutor desired to retire his note, and did so before it became due, and, though the false pretences, on which the note was obtained, might be said to be continuing, they were not according to the evidence, made or renewed w^hen the note vv^as paid, (b) The crime of obtaining goods by false pretences is complete, although, at the time when the prisoner made the pretence and obtained the goods, he intended to pay for them, when it should be in his power to do so. (c) A person who, by falsely representing himself to be another person, induces another to enter into a contract with him for board and lodging, and is supplied, accord- ingly, with various articles of food, cannot be indicted for obtaining goods by false pretences, the obtaining of (rt) Itc'i. V. Connor, 14 U. C. C. V. 529. (/-) Rcii. V liradii, 2G U. C. Q. 13. 13. (r) lit,,. V. Niuihr, \u li. 1 C. C. it. 4 ; .% L. J. (M. (J.) (il. FALSK IMICTHXCKS. 337 the goods being- too remotely connected with the false representation, (a) A conviction i'or o})tuining a chatted by I'also pretences is good, although the chattel is not in (!xist(;nce at the time the pridence is made, providcid the subsequent de- livery ol'the chattel is directly connected with the false pretence, and wh<'th(n" or not there is such a direct con- nection is a question for the .jury, (h) The test is the continuance of the pretence down to thy ialse pretences the use ol" a chattel lor a limited time only, "without an intention to de])rive the owner wholly of the chattel, is not an obtaining by false pretences within the Statute, (dj The tht be properly convicted of obtaining the $26 by false pretences, (a) It is a sufHciont false pretence, within the Statute, to pretend that certain drafts, in return for which the prisoner obtained from the prosecutor a mortgage and a promissory note, were good and would be paid, whereas, it appeared that these dralts were worthless from iirst to last, and were merely fictitiovip. (h) It would seem that indehnite or exaggerated praise, upon a matter of indefinite opinion, cannot be made the ground of an indictment for false pretences, (c) The prisoner induced the prosecutor to purchase a chain from him, by fraudulently r«>presenting to him that it was 15 carat gold, when, in fact, it was only of a qual- ity a trifle better than 6 carat, knowing at the time that he was falsely representing the quality of the chain as 15 carat gold : — Held, that the statement that the chahi was 15 carat gold, not being mere exaggerated praise nor relating to a mere matter of opinion, but a statement as to a specific fact within the knowledge of the prisoner, was a sufficient false pretence to sustain an indictment for obtaining money under false pretences, (tl) The questions whether statements of a seller of an (a) Rcq. V. Lcc, 23 U. i\ Q. V,. 340. (6) Req. V. Bnubi, 26 U. V.. Q. B. 14, per Draper, C. J. ((•) Rtv. V. f/rt.w, Bell, 208 ; 2!» li. J. (M C. ) 90, per Erie, 0. J. ; Reg. v. Bryan. Dears. & B. 21)") ; 2(i li. J. (M. C.) 84. See also Rci. v. Wat>iov, Dears. & B. ;M8; 27 L. J. (M. C.) 18, \wt Eric, J. ; Rt) m'er sum claimed by him ; whereas there was not then " due and owini^" to liim such money, being parcel, etc. Alter v«M'dict of li'uilty had been re- corded, judj^nient was arrested, and the Court held that the indictment w^as bad, and the arrest ol' judgment proper, upon the ground that tlu^ lalse pretenci? of an existing I'act was not sutKciently alleged, and that the averrn'Mit would be proved by evidence oi' a wrongi'ul overcharge, or misrepresentation ol' matter of law. {h) Our form ol" indictment lor obtaining money by lalse pretences does not re<|uire the pretences to be set out, but simply, that the prisoner, " by I'alse pretences, did obtain," etc. It is appreh(Mided that it will be sullicient to follow the statutory form, and that the false pretence of an existing fact need not be set out. To sustain an indictment for obtaining, or attempting to obtain, money by false pretences, the indictment must state with certainty the pretence of a supposed existing fact. A statement that prisoner preteiubnl to H. P. (the manager of T.'s business) that li. P. was to give him 10s., and that T. "was o-oino- to allow him 10s. a-week, held insufficient — Blackburn,^ . and Pi^ott,.!, dubiUmlibus, (c) One D., being a postmaster at Berlin, transmitted to {n) Ren. V. Stanburii, 8 U. C. L. J. 27!> ; L. & C. 128 ; 31 L. J. (M. C.) 88. (I>) Iteii. V. Oaten, 1 U. C. L. J. 135; Dears. 4.5!»; 24 L. J. (M. 0.) 123. ((•; Raj. V. Heimhaic, L. & V. 444 ; 33 L. J. {U. C.) 132. 34G CRIMINAL LAW OF CANADA. defendant, at Toronto, several Post-Office orders, payable there, which defendant presented, and got cashed ; but it m^peared afterwards that the money thus obtained had never been received by D. for defendant, and th.i frauds to a large extent had been thus committed. Defendant having been convicted, upon an indictment which charged him with having unlawfully, fraudulently, and knowingly, obtained from our Lady the Queen these sums of the moneys and property of our said Lady the Queen, with intent to defraud: — Held, that the indict- ment was good — that the 5Gth section of the Con. Stats. Can., c. 31, was not applicable to the case, and that it was unnecessary to allege an intent to defraud any par- ticular person, as the indictment was in the language of the Statute («) creating the offence, and the same manner of allegation was sanctioned by c. 99, s. 29, of the Con. Stats, (ft) — Held, also, that the indictment need not lay the money as the property of the Postmaster-G-eneral, and it was sufficient to lay it in Her Majesty, (c) A municipality having provided some wheat for the poor, the defendant obtained an order for fifteen bushels, described as " three of gclden drop, three of fife, nine of milling wheat." Some days afterwards, he went back, and represented that the order had been accidentally destroyed, when another was given to him. He then struck out of the first order " three of golden drop, three of fife," and, presenting both orders, obtained, in all, twenty-four bushels. The indictment charged that de- fendant unlawfully, fraudulently, and knowingly, by false pretences, did obtain an order from A., one of the municipality of B., requiring the delivery of certain wheat, by and from one C, and, by presenting the said { a) Con. Stat. Can. c. 92, s. 73. [h) licy. V. Deamner, 21 U. C. Q. B. 23L {r) See now 32 & 33 Vio. c. 21, s. fi3, FALSE PRETENCES. 347 order to C, did fraudulently, knowingly, and by false pretences, procure a certain quantity of wheat, to wit, nine bushels of wheat, from the said C, of the goods and chattels of the said municipality, with intent to defraud : — Held^ that the indictment was sufficient in substance, and not uncertain or double, but in effect charging that defendant obtained the order, and, by presenting it, ob- tained the wheat by false pretences, {a) An indictment, charging that defendant, by false pre- tences, did obtain board of the goods and chattels of the prosecutor, was held bad, the term " board " being too general. (6) An indictment for obtaining by false pretences goods and chattels, or a chattel of the prosecutor, not defining them or it, would be insufficient. There must be the same particularity as in larceny, that the party may know certainly what he is charged with stealing, or ob- taining by false pretences, (c) The prosecutor is not bound to deliver to the defendant the particulars of the crime charged against him. {d) An indictment, for obtaining money or goods by false pretences, must have stated whose the money was, or goods were, (e) But the allegation of ownership is rendered unneces- sary by the 32 & 33 Vic, c. 21, s. 93. By the same sec- tion, a general allegation that the party accused did the act, with intent to defraud, is sufficient, without alleging an intent to defraud any person. An allegation in a count for obtaining a che(iue, de- scribing it " for the sum of .£8 14s. 6d. of the moneys of frt) i?C(;. V. Cfl»//5ic^M8 LT. C. Q. B. 4W. (h) Raj. V. iWQnarrie, 22 U. C. Q. B. 000. ,■ ;,''.■ . (c) Ih. (JOl, \WT Draper, C. J. • "^ • • ^ ' (d) Ren. V. Scnccal, 8 L. 0. .T. 286. (e) Re;/, v. M'DomtM, 17 U. C. C. P. 638, per A. WJ-oov, J. ; Rcff. v. Martin^ K A. & E. 481. 348 CRIMINAL LAW OF CANADA. "William "Willis," sufficiently describes the ownership of the cheque, for the words " of the moneys " may be rejected, (a) ^ : " The English Statute, 9 & 10 Vic, c. 95, s. 57, is con- fined to the use of false instruments, and does not apply to the mere verbal assertion of authority. Therefore, where the prisoner had obtained payment of a sum, in discharge of a debt and costs, from a defendant, (who had been previously duly served with a summons in the County Court) by pretending that he was an officer of, and authorised by, the Court to receive it, it was held that the offence was not made out. (b) The above clause of the English Statute is, in sub- stance, the same as the 181st clause of our Division Court Act, Con. Stats. U. C, c. 19, so that the decision is in point on the construction of our statute. In another case, on the same clause of the Statute, the prisoner was indict- ed for acting, and professing to act, under a false colour and pretence of County Court process, and it was proved that the prisoner, being a creditor of R., sent him a non- sensical letter, headed with the Royal Arms, and pur- porting to be signed by the Clerk of a County Court, threatening County Court proceedings. He, subsequent- ly* told R.'s wife that he had ordered the County Court to send the letter, upon which she paid the debt ; and,- whilst making out the receipt, he made demand of her for the Comity Court expenses : — Held, that these facts constituted felony, within the meaning of the section, and that the conviction must be supported, (c) Where A. delivered to B. a document requiring him to produce accounts, etc., at a trial in a County Court, in- tituled of the Court, and giving the names of Plaintiff ra) Reg. v. Godfret/, 4 U. C. L. J. 167 ; Dears. & B. C. C. 426. (b) Reij. V. Myott, 1 U. C. L. J. 35 ; 6 Cox, C. C. 406. (c) Reg. V. Ecans, 3 U. C. L. J. 119; Dears, & B. 236; 26 L. J. (M. C.) 92. FALSE PRETENCES. 349 and Defendant, with a statement, in the margin, of the amount of the sum claimed, no such cause really existing : on an indictment against A., for feloniously causing to be delivered to B., a paper purporting to be a copy of a certain process of the County Court of L. : — Held, that the document above mentioned w^as a notice to produce documents, etc., between party and party, and not a pro- cess of the Court, nor did it purport to be so. ia) B. being indebted to A., A. obtained a blank form for Plaintiff's instructions to issue County Court summons. This he filled up with particulars of the names and ad- dredses of himself and B., as plaintiff and defendant, and of the nature and amount of the claim, and, without any authority, signed it in the name of the Registrar, endors- ing also a notice, signed also by A. in the name of the Registrar, and without his authority, that unless the amount claim(;d were paid by B. on a certain day, an ex- ecution warrant would issue against him. This paper he delivered to B., with intent thereby to obtain pay- ment of his debt : — Held, (b) that this was " an acting, or professing to act, under false colour, and pretence of process of the County Court," within the meaning of 9 & 10 Vic, c. 95, s. 57. (c) Having treated specifically of the offences of larceny, embezzlement, and the obtaining of money by false pre- tences, we jiroceed to point out the distinctions between them. It is of the essence of the offence of larceny that the property be +aken against the will of the owner, (d) If taken by the consent of the owner, for instance, if he intends to part with the property, no larceny will be com- mitted. . ■!'■■ :<'. r :■>' .'• .;■ ■■■ ^ v.; -•:■.• ; ' ■ ' .■ (aj Rey. v. CasUe, 4 U. C. L. J. 73 ; Dears. & B. 3C3 ; 27 L. J, (M. C.) 70. (h) Affirming Re.(i. v. Eians, supra, (c) Reu. V. Richmond, 5 U. C. L. J. 237 ; Bell 142. _ (d) Reg. v. Prince, L. R. 1 C. C. R. 1.54, per BoviU, C. J. L .. L. ^_ S50 CRIMINAL LAW OF CANADA. Ill false pretences the property is obtained with the consent of ihe owner, the latter intending to part wath his property, (a) The crime is constituted by the pre- tence that something has taken place, which, in fact, has not taken place, (b) It, therefore, necessarily differs from larceny, in the fact the property in the chattel passes to the person obtaining it, and it may, though perhaps not necessarily, difier from larceny in this, that the owner is induced to voluntarily part with his property, in conse- quence of some false pretence of an existing fact, made by the person obtaining Ihe chattel. But tho crime of obtaining money by false pretences is similar to larceny in this, that, in both offences, there must be an intention to deprive the owner wholly of his property in the chat- tel, (c) Embezzlement consists in obtaining the lawful posses- sion of goods, etc., without fraud or any false pretence, as upon a contract, or with the consent of the owner, in the ordinary course of duty or employment, or indepen- dently of such employment, and subsequently converting the goods, with a felonious intent to deprive the owner of his property therein. It differs from larceny in this, that the possession of the goods, etc., is lawfully obtained, in the first instance without the ingredient of trespass, and the conversion takes place while the priv- ity of contract existcj between the parties. The acquisi- tion of lawful possession, in the first instance, is the con- stituent feature of this offence, and, according to the doctrines of the common \aw, no larceny could be com- mitted by a bailee or other person w^hose original title was lawful, until the privity of contract was determined. A carrier could not be convicted of larceny unless he (a) S«e White v. Garden, 10 C. B. 927, per Talfourd, J. (b) Rey. V. M'Grath. L. R. 1 C. C. R. 209, per Kelly, C. B. (c) See Reg. v. Kilham, L. R. 1 C. C. R. 261, ante p. 337. RECEIVING STOLEN GOODS. 351 " broke bulk," and the reason was that the act of " break- ing bulk " was an act of trespass in the carrier, by which the privity of contract was determined. Now, however, the carrier is guilty of larceny, although he do not break bulk or otherwise determine the bailment, (a) The distinction between larceny and embezzlement may be illustrated by the case of a clerk or servant, whose duty it is to receive money for, or on account of, his master. An appropriation before the money, etc., comes into the actual possession of the master, as if a clerk in a shop, on receiving money, puts it into his pocket before putting it into the till, would bo embezzle- ment, (b) But if the money is put in the till, or other- wise becomes actually in the master's possession before appropriation, and is, in the act of appropriation, taken out of the possession of the master, this is larceny at com- mon law. But these distinctions are not of such practical import- ance as formerly, for, in either of the above cases, whether the indictment were framed for larceny or em- bezzlement, the defendant might be convicted of the offence proved in evidence, (c) and a person indicted for obtaining money by false pretences may be convicted of that offence, although the facts proved also shew a lar- ceny, (d) : . . .1 . r '■* . < . Receiving Stolen Goods. — This offence was punishable at common law only as a misdemeanor, even when the principal had been found guilty of felony in stealnig the goods, (e) and the mere receipt of stolen goods did not, at common law, constitute the receiver an accessory, but (a) See 32 & 33 Vic. c. 21, s. 3. (bj R. V. Bull, 2 Leach, 841 ; R v. Bai/elei/, 2 Leach, 8,35; E. v. Sullens, 1 Mood. C. C. 129 ; E. v. Walsh, 11. & R. 218 ; Rey. v. Masters, 1 Den. 332 ; 2 C. &K. 930; 18 L.J. (M. C.) 2. (cj See 32 & 33 Vic. c. 21. s. 74. (d) 32 & 33 Vic. c 21, s. 93. - ^ -,:_.. , (e) 2Riis8. Cr 542. '• ' ; ' 352 CRIMINAL LAW OF CANADA. was a misdemeanor, punishable by fine and imprison- ment, {a) unless he likewise received and harboured the thief, {b) There must be a stealing of goods, and the stealing- must be a crime, either at common law or by statute, before a party is liable to be convicted of receiving, (c) Accordingly, it has been held in England, that where A. and B. were in partnership, and B. stole the partnership goods, and disposed of them to the prisoner, who re- ceived them, knowing them to have been so stolen, a conviction of the prisoner, under the 24 & 25 Vic, c. 96, s. 91, could not be sustained, for the stealing was not a crime, either at common law or under the said Act, al- though it was a felony, within the 31 & 32 Vic, c 116, H.L{d) This latter statute renders the stealing of partnership property felony, and is identical with the 32 & 33 Vic, c 21, s. 38, but it is a distinct Act from the 24 & 25 Vic, c. 96, and the ground of the decision in the above case was, that the stealing of partnership property was not felony, by virtue of the 24 & 25 Vic, c 96, upon which the indictment was framed. Section 91 uses the words " by virtue of Ihis Act," and the stealing was not a crime by virtue of this latter Act, but by virtue of the former ; consequently the offence was excluded by the express language of the statute. It is apprehended that with us, notwithstanding this case, a person may be convicted under the 32 & 33 Vic, c 21, s. 100, for receiving goods which have been stolen, or converted by a partner, in violation of the provisions of s. 38, for the stealing would be a crime " by virtue of this Act," within the language of s. 100. («) 2 Runs. Cr. 554. (b) Bai. V. Smith, L. R. 1 C. C. R. 270, per BoviU, C. J. (c) Ae(f. V. Siaith, L. R. 1 C. C. R. 266 ; 39 L. J. (M. C.) 112. (ct) lb. RECEIVING STOLEN GOODS. ' 353 A conviction of the principal for embezzlement is suf- ficient to warrant a conviction of the receiver, by virtue of the express words of s, 100 of the 32 k, 33 Vic, c. 21. (a) It is quite clear that the goods must be stolen, or, at all events, the stealing, taking, extorting, embezzling, and otherwise disposing thereof, must amount to felony, either at common law or by virtue of the statute. Where four thieves stole goods from the custody of a railway company, and afterwards sent them in a parcel, by the same company's line, addressed to the prisoner. During the transit the theft was discovered, and on the arrival of the parcel at the station for its delivery, a policeman in the employ of the company opened it, and then returned it to the i)orter, whose duty it was to de- liver it, with instructions to keep it until further notice. On the following day the policeman directed the porter to take the parcel to its address, where it was received by the prisoner, who was afterwards convicted of receiving the goods, knowing them to be stolen. Upon an indict- ment, which laid the property in the goods in the railway company : — Held, (b) that the goods had got back into the possession of the owner, so as to be no longer stolen goods, and that the conviction, on that ground, was wrong, (c) — ' There must be a receipt of stole?i goods. Thus where stolen goods were found in the pocket of the thief by the owner, who sent for a policeman. The policeman took the goods, and the three went together towards the shop of A., where the thief had previously sold stolen goods. When near it, the policeman gave back the goods to the (a) Reg. v. Frampton, Dears. & B. 585; 27 L. J. (M. C.) 229; Arch. Cr. Pldg. 436. (6) "Ry Martin, B., and Keating and Lush, J J. ; dissentientibus, Erie, C. J., and Mellor, J. (c) Eeg. V. Schmidt, L. R. 1 C. C. R. 15 ; 35 L. J. (M, C.) 94. W P 354 CRIMINAL LAW OF CANADA. thief, who was sent, by the owner, to sell them where he had sold the others. The thief then went alone into A's shop and sold the goods to him, and returned with the proceeds to the owner : — Held, that, under these circums- tances, A. could not be convicted of receiving stolen goods, for when the goods came to the prisoner's hands, they were not stolen goods, (a) On an indictment for stealing and receiving a mixture, it appeared that the thief had stolen two sorts of grain, and then mixed them, and sold them to the prisoner : — Held, that the latter (the receiver) could not be convicted on such, an indictment, for the indictment charged a receiv- ing of a mixture, which had been stolen, knowing it, i.e. the mixture, to have been stolen but the only evidence shewed that pure oats and pure peas were stolen, and afterwards mixed and sold to the prisoner — so that the one prisoner did not steal a mixture, and the other did not receive, as the indictment alleged, a mixture which had been stolen, for the mixture had not been stolen, {b) By the old law, if two defendants were indicied jointly for receiving, a joint act of receiving must have been proved in order to convict both, (c) Now the 32 & 33 Vic, c. 21, s. 103, extends to cases, where, upon an indictment for a joint receipt, it is proved that each of the prisoners separately received the whole of the stolen property at different times, the one receipt subsequent to the other ; and it makes no difference whether the receipt was direct from the thief, or from an intermediate person. There is no distinction between separate receipts of the whole, and of part of the proper- ty {d) ; and, under s. 102, there is no distinction between (a) Reg. v. Dolan, \ U. C. L. J. 55 ; Dears. 463 ; 24 L. J, (M. C.) 59. (h) Reg. V. Robinson, 1 U. 0. L. J. N. S. 53 ; 4 F. & F. 43. (c) Reg. V. Messingham, 1 Mood. C. C. 257. (d) Reg. v. Reardon, L. R. 1 C. C. R. 31 ; 35 L. J. {If.. 0.) 171. RECEIVINO STOLEN OOODS. ' 355 separate receipts at the same time, and separate receipts at JiHerent times, (rt) ' • . i. The goods stolen mnst be received by the defendant, and though there be prool'of a criminal intent to receive, and a knowledge that the goods were stolen, if the exclu- sive possession still remains in the thief, a conviction for receiving cannot be sustained. (6) It is also necessary that the defendant should, at the time of receiving the goods, know that they were stolen, (c) "Where a husband and wife are indicted for receiving, it is proper that the jury should be asked whether the wife received the goods, either from or in the presence of her husband, and where the question was not put, and both husband and wife w^ere convicted, the Court quash- ed the conviction of the wife. ( . ,. .; , ; So it is forgery to execute a deed in the name of, and as representing-, another person, with intent to defraud, even though the prisoner has a power of attorney from such person, but fraudulently conceals the fact of his being only such attorney, and assumes to be principal. (6) It is forgery, within the meaning of the 32 & 33 Vic, c. 19. s. 23, to make a deed fraudulently, with a false date, when the date is a material part of the deed, al- though the deed is, in fact, made and executed by and between the persons by and between whom it purports to be made and executed, (c) Every instrument, which fraudulently purports to be that which it is not, is a forgery, whether the falseness of the instrument consists in the fact that it is made in a false name, or that the pretended date, when that is a material portion of the deed, is not the date at which the deed was, in fact, executed, (d) Where an instrument professes to be executed at a date different f.om that at which it really was executed, and the false date is material to the operation of the deed, if the false date is inserted knowingly, and with a fraudu- lent intent, it is a forgery at common law. (e) The notion of forgery doth not so much consist in the counterfeiting of a man's hand and seal, as in the endea- vouring to give an appearance of truth to a mere deceit and falsity, and either to impose that upon the world as the solemn act of another, which he is in no way privy to, or, at least, to make a man's own act appear to have been done at a time when it was not done, and, by force (a) Reg. v. Campbell, 18 U. C. Q. B. 416, per Robinson, C. J. (6) Reg. v. Gould, 20 U. C. C. P. 15!), per Gwynne, J. c) Reg. V. Ritson, L. R. 1 C. C It. 200 ; 39 L. J. (M. C.) 10. (d) lb. 203, per Kelhi, C. B. (c) 76. 204, per ZJ/ac]l*i«'n, J. ' • ' FORGERY. 359 of such a falsity, to give it an operation which, in truth and justice, it ought not to have, (^aj It was the duty of the prisoner, a railway station- master, to pay B. for collecting and delivering parcels ; and the company provided a form in which the charges were entered by the prisoner under the heads of " Deli- very" and " Collecting" respectively. The prisoner hav- ing falsely told B. that the conifjany would not pay for delivering, but only for collecting, continued to charge the company for collecting and delivering ; and in order to furnish a voucher, after paying B.'s servant the sum entered in the form for collecting, and obtaining his re- ceipt, in writing, for that amount, withovit either his or B.'s knowledge, put a receipt stamp under this servant's name, and put therein, in iigures, a larger sum than he had paid, being the aggregate for collecting and deliver- ing : — Held, that the prisoner was guilty of forgery, {b) Where, on an indictment for forgery, it appeared that a promissory note had been drawn by the prisoner, pay- able, two months after date, to the order of one J. S., and afterwards endorsed by said S. : the prisoner then altered the note, by making it payable three months after date, and discounted it at the Bank of British North America, in London, Ontario. The jury having convicted him of forgery, on motion for a new trial, on the ground that the forgery or uttering, if any, was a forgery of or the uttering of a forged endor.<»ement, the note having been made by the prisoner himself, and that there was no legal evidence of an intent to defraud : — Held, that the altering of the note, while it was in his own possession, after endorsement, was a forgery of a note, and not of an en- dorsement, and that the passing of the note to a third (a) Reg. v. Ritaon, L. R. 1 C. C. R. 204, per Blackburn, J. (b) Reg. v. Griffiths, 4 U. C. L. J. 240 ; Dears. & B. 548 ; 27 L. J. (M. C.) 205. 3G0 CRIMINAL LAW OF CANADA. party, who was thereby defrauded, was sufficient e\'i- dence of an intent to defraud, (a) ^^^ ? ,. . The instrument must be made with intent to defraud, which is the chief ingredient of the offence. (6) On an indictment for forgery, there must be evidence of an intent to defraud, (c) and the writing of a signature in sport, without any intention to defraud, or pass it off as genuine, is not a forgery, (f/) -.';:■: • A man may draw a promissory note for any sum he pleases, and in favour of any person, and payable to him, or to his order, or to bearer, and on demand, or at any time after date, at any place, and, so long as it remains simply as his own promissory note, in his own possession, and charging no other person but himself with liability, he may alter it, at his own free will, in all or any parti- culars. But that right of alteration ceases when another person becomes interested in the note, either by acquir- ing it as his own property, or by becoming a party to or responsible for its payment ; and an alteration then made, prejudicial to any such person, and under circumstances which afford ground for inferring an intention to defraud, is a criminal act. It would seem that, even after another person becomes a party to the note — if, for instance, the nciewas made by the prisoner, and endorsed by another, but still retained in the hands of the prisoner, and not uttered as genuine, there would be nothing to establish the intention to defraud, and the jirisoner could not be convicted of forgery, (e) Under the 32 & 33 Vic, c. 19, s. 51, the indictment need not allege an intent to defraud any particular per- (a) Ilcfi. V. Craid, 7 U. C. C. P. 239. ih) 2 Kuss. ( 'r. 774. (i) Reij. V. Craiii, sujnri, 244, per Draper, C, J. ; Meg. v. Dunlop, 15 U. C. Q. B. Hit. per Ruhinmm. C. J. id) Ih. li;t, ],er RohinHon, C. J. (e) Reg. v. Craig, 7 U. C. C. P. 241, per Draper, C. J. FORGERY. ' 361 son. (a) Nor .^ it necessary to prove an intent to defraud any particular person, but it is sufficient to prove that the party accused did the act charged, with intent to defraud, (h) It is also immaterial whether any person is actually defrauded by the forgery, (c) If, from circumstances, the jury can presume that it was the defendant's inten- tion to defraud, it is sufficient to satisfy the allegation in the indictment, even though, from circumstances un- known to the defendant, iin could not, in fact, defraud the prosecutor, (d) The making of a false instrument is forgery, though it may be directed by statute that such instrument shall be in a certain form, which, hi the instrument in ques- tion, may not have been complied with, the Statute not making the informal instrument absolutely void, but it being available for some purposes, (e) Upon the same principle, a man may be convicted of forging an un- stamped instrument, though such instrument can have no operation at law. A prisoner was convicted of forging an unstamped bill, which, under 23 Geo. 3, c. 58, s. 11, it vv^as declared should not be pleaded, or be given in evidence, or ad- mitted in any Court to be good, or available in law, unless stamped. The conviction M^as held good, as the words of the Act only meant the bill should not be made use of to recover the debt ; and, besides, the holder was authorized to get it stamped after it was made (/) If the instrument forged, on the face of it, is such as (a) See Reg. v. Hathnwav, 8 L. C. -T. 285; Reg. v. Carson, 14 U. C. C:. P. 309. (b) 32 & 33 Vic. c. It), 8. 51. (c) R. V. Crookc, 2 Str. 901; R. v. Oonte, 1 Ld. Ravin, 737. ((/) R. V. Holdeii, 11. & R. 154 ; R. v. Marcus, 2 C' & K. 356 ; R. v. Hoatson, ib. 777. (c) Rex V. Lyons, Russ. & Ry. 255. (f) Rex V. Hawkcsicood, 1 Leach, 257 ; Rex. v. Lee, ib, 258 n. 3G2 CRIMINAL LAW OF CANADA. would be valid, provided it had a proper stamp, the offence of forgery is complete, (a) , , . It seems that an indictment for forging a note or agree- ment, which is declared by law to be wholly void, can- not be maintained, if the instrument, on its face, affords evidence that it comes within the Statute declaring it void, (b) ', : r ; A false letter of recommendation, through the uttering of which to a chief-constable the prisoner obtained a situation as constable, is the subject of forgery at com- mon law. (c) . - J , But a forgery must be of some document or writing ; therefore, the painting of an artist's name in the corner of a picture, with the intention to pass it off as the origi- nal production of that artist, is not a forgery, (d) An agreement in the following form : — "Glanford, Jany. 29, 1834. I, John Hostine, do agree to William Carson, of "War- stead Plymp, the full rite and privilege of all the white oke and elm and hickory lying and standing on Lot 26, south part, on the third concession of Plymp, for the sum of thirty dollars now paid to Hostine by Carson, the receipt whereof is hereby by me acknowledged. John Hostine." may be considered as a contract or agreement for the sale of timber, and parol evidence, of the surrounding circumstances, at the time it was written, would be ad- missible to explain it ; and, at all events, should it fail as an agreement, it is clearly a receipt for the payment of money within the Con. Stats. Can., c. 94, s. 9. (e) (a) Taylor v. Goldinq, 28 U. C. Q. B. 201, per Richards, C. J. fbj Taylm- v. OoMiiif), 28 U. C. Q. B. 202, per Richards, C. J. (c) Reg. V. Moak, 4 U. C. L. J. 240 ; Dears. & B. 550; 27 L. J. (M. C.) 204. (d) Pxg. V. Closs, 4 U. C. L. J. 98 ; 1 Dpts. & B. 4C0. (e) Rtg. V. Carson, 14 U. C. C. P. 309. FORGERY. 363 The prisoner was secretary of a friendly society, called the Ancient Order of Foresters, having branches in vari- ous towTis. A member of this society, having paid up all his dues, wished to obtain a " clearance," or certificate that he had paid all his dues, in order that he might be entitled to membership in a branch of the society in another town. The prisoner, having received the dues and fees for the clearance, neglected to pay them over to the proper officer, and forged the signature of the latter to a clearance : — Held, that the clearance was not an ac- quittance or receipt ibr money within the corresj)onding English section of the 32 & 33 Vic, c. 19, s. 26 (a) The prisoner was indicted under the 24 & 25 Vic, c 98, s. 24, for feloniously making, by procuration, in the name of one A., a security for money, to wit, £417 13s , without lawful authority or excuse, with intent to de- fraud. The document forming the subject of the indict- ment was in the following form : — ■ ' ,; .^ " Thornton, October, 1867. Received of the South Lancashire Building Society the sum of four hundred and seventeen pounds 13s. on account of my share, No. 8071. ■' V , . p. p. Susy Ambler. "£417l3s. - i» i. . Wm.Kay." Held, that this document, though in form a mere receipt, given by a depositor to the Building Society, might pro- perly be described in an indictment as a " warrant," " authority," or " request," for the payment of money, if, by the custom of the society, such receipts were, in fact, treated as warrants, authorities, and requests, for the payment of money. (6) (a) Reg. v. French, L. R. 1 C. C. R. 217 ; 39 L. J. (M. C.) 58. (h) Reg. v. Kay, L. R. 1 C. 0. R. 257 ; 39 L. J. (M. C.) 118. 364 CRIMINAL LAW OF CANADA. The 16th section of this Statute, which is somewhat analogous to the 32 & 33 Vic, c, 19, ss. 19 and 20, extends to the engraving, in England, without authority, of notes purporting to be notes of a banking company, carrying on business in Scotland only, notwithstanding s. 65 enacts that nothing in the Act contained shall extend to Scotland, (a) Upon an indictment, under 1 Wm., 4 c. Q6., s. 18, for engraving upon a plate part of a promissory note, pur- porting to be part of the note of a banking company, it was proved that the prisoner, having cut out the centre of a note of the British Linen Banking Company, on which the whole promissory note was written, had pro- cured to be engraved upon a plate, merely the Royal Arms of Scotland and the Britannia which formed part of the ornamental border, but placed upon the plate in the same manner, as they are found in a complete note of the company : — Held, that the plate so engraved satis- fied the words of the section. That the ornamental border of such a note is part of the note within the section, as " note " is there used in the popular sense. That, in order to ascertain whether that w^hich was engraved purported, within the section, to be part of a note, extrin- sic evidence was admissible to the jury, and they might compare it with a genuine note of the company, (b) An indorsement, " per procuration J.S.," signed in the defendant's own name, w^asheld on the repealed Statute, 11 Greo., 4 and 1 Wm. 4, c. 6C\ s. 3, not to be a forgery, though the defendant falsely alleged that he had autho- rity from J. S. to indorse (c) But an indorsement, of the above description, will now be felony withhi the 31 & 32 Vic, c 19, s. 27. Ca) Reg. V. Brackenrvhje, L. E. 1 C. C. R. 133; 37 L. J. (M. C.) 86. (b) Met/. V. Keith, 1 U. C. L. J. 13G; Dears. 486; 24 L. J. (M. C.) 110. (c) Reg. V. White, 1 Den. 208 ; 2 C. & K. 404 ; Arch, Cr. Pklg. 579. FORGERY. '. 3G5 So, by s. 47 of this Statute, the forgery of an instru- ment in this country payable abroad, or the uttering of an instrument in this country, forged, and payable abroad, is made an offence within the meaning of the Act. {a) ; ,, ■•.,; ,..i: When a prisoner, being pressed for payment of a debt, obtained further time to pay, by giving, as security, an 1 U, in the following form : — i « : • '■ ' ,'- "G-EORGE "WlCKHAM." and purporting to be signed by the prisoner, and another whose signature was forged by the prisoner : — Held, that this was an " undertaking for the payment of money " within the (24 & 25 Vic, c. 98, s. 23), corresponding- English section of the 32 & 33 Vic, c 19, s. 26. (b) There being a consideration for the I U, the fact that it did not appear was of no consequence ; for the con- sideration of a guarantee need not be shown on its face, (c) The following instrument was held to be a promissory note for the payment of money within s. 3, of the 10 & llVic, c9:— " The President, Directors and Co. of the Montreal Bank promise to pay five dollars, on demand, to W. Mar- tin, or bearer : — "A. Simpson, Cashier, " Wm. GrANN, Pres. " Montreal, June 1, 1853. (a) See Pug. v. Kirkwood, 1 Mood. C. C. .311. (b) Reth V. Chambers, L. R. 1 (J. C. R. 341. ^c) lb. See 26 Vic. c. 45. 866 CRIMINAL LAW OF CANADA. for a forged paper, purporting to be a bank note, is a promissory note within the meaning of the statute, and it is equally so if there is no such bank, as that named, the bank intended being erroneously described in the instrument, (a) A country bank note for the payment of one guinea, " in cash cr Bank of England notes," was holden not to be " a promissory note for the payment of money " within, the 2 Geo. 2, c. 25, for it was necessary that such a note should be for the payment of money only (6) ; such a case is now provided for by the 32 & 33 Yic, c. 1 9, s. 15. Under s. 26, the forgery of a request for the payment of money is made felony, though it was formerly no of- fence, (c) A forged magistrate's order for a reward for apprehend- ing a vagrant, which appeared upon the face of it to be defective, as not being under seal or directed to the con- stable, etc., was holden not to be within the former stat- ute ; for, without these requisites, it was nothing more than the order of a mere individual, which the treasurer was not bound to obey ; (d) such orders would be authorities or requests within the above section. An instrument in the following form. ' ^^ ' * ' $3.50. " Carick, April, 10, 18(J3. " John McLean, tailor, please give Mr. A. Steel to the amount of three dollars and fifty cents, and by doings you will oblige me, (Signed) Angus McPhail. fa) Reg. v. M'Donald, 12 IT. C. Q. B. 543. (bj R. V. Wilcock, 2 Ru8s. 498 ; Arch. Cr. Tldg. 579. (c) See Reg. v. Thorn, 2 Mood. C. C 210 ; C & Mar. 206. (d) R. V. Rushworth, R. & R. 317 ; Arch. Cr. Pldg. 583. FORGERY. 367 is an order for the payment of money, and not a mere request, (a) But an instrument as follows : — • " Renfrew, June 13, 1860. " Mr. McKay,— Sir, w^ould you be good enough as for to let me have the loan of $10 for one week or so, and send it by the bearer immediately, and much oblige your most humble servant, - . . f (Sgd.) J. Almiras, p. p. is not an order for the payment of money, within the Con. Stats. Can. c. 94. (b) " Mr. Warren,— Please let the bearer, "William Tuke, have the amount often pounds, and you will oblige me, "B. B. Mitchell," is an order for the payment of money, within this Statute, and not a mere request; (c) but it would not be a warrant for the payment of money, within the meaning of the Statute, {d) The true criterion as to the instrument being an order or not, is whether the person, to whom it is directed, could recover the amount on payment, (e) A w^riting not addressed to a particular person by name, or to anyone, may be an order for the payment of money, within the statute, if it be shewn by evidence that it was intended for such person, or for whom it was intended. (/) Where the order was for $15, in favour of "bearer or R. R." and purported to be signed by one " B," and the (a) Reg. v. Steel, U U. C. C. P. 619. (b) Reg. V. Reopelle, 20 U. C. Q. B. 260. (c) Reg. V. Tuke, 17 U. C. Q. B. 296. (d) 76. 298, per Robinson, C. J. (c) lb. 299, per Robinson, C. J. ; Reg. v. Carter, 1 Cox, C. C. 172 ; lb. 241 ; Reg. V. Dawson, 3 Cox, C. C 220. (/) Reg. V. Parker, 15 U. C. C. P. 15; Reg. v. Snelling, 6 Cox, 230; 1 Dears. 219. 3G8 CRIMINAL LAW OF CANADA. prisoner in person presented it to M., representing- him- self to be the payee and a creditor of " B " : — Held, that it might I'airly be inferred to be intended for M., and a con- viction for forgery was sustained, {n) An hidictment will not lie for forging or altering the Assessment Roll for a township, deposited with the clerk, (b) This would probably now be an offence with- in the 32 & 33 Vic, c. 19. An indictment for forging a note must allege that the note was forged. The defendant was convicted, at the Quarter Sessions, upon an indictment, charging that he, ieloniously, did offer, dispose of, and put off a certain promissory note, purporting to be made by one F , for the sum of £4 10s., with intent to defraud, he, the said defendant, at the time he so uttered and published the said note, as aforesaid, then and there, well knowing the same to be forged. It ap- peared that some boys had been amusing themselves with writing promissory notes, and imitating persons' signatures, and among them was one with F.'s name. The papers were put in the fire, but one of them was carried up the chimney by the draft, and fell in the street, where it was picked up by the defendant, '^he latter did not know" by whom, or with what intent, it had been made, though he suspected it was not genuine. A person, who was with him at the time, said he thought it was not genuine, and advised him to destroy it ; but defendant kept it, and afterwards passed it off, telling the person who took it that it was good : — Held, that, upon these facts, the defendant was guilty of a felonious uttering ; but the conviction was quashed, for the indictment was (a) Reg. v. Parker, 15 U. C. C. P. 15 ; Reg. v. Snelling, f Cox. 230 ; 1 Dears. 219. (b) Reg. v. Preston, 21 U. C. Q. B. 86. •' ' ' FOUOEllY. 369 defective, in not stating expressly that the note "was forged, or that the defendant uttered it as true, (a) Until the Provincial {Statute, 9 Vic, c. 8, the old rule of the criminal law of Eng-land prevailed, that the party, by ■whom a forged instrument purported to be signed, was not competent to prove the signature to be forged, and any one who might, by possibiUty, receive the remotest advantage from the verdict was equally excluded. But the objection was founded on the ground of interest, and, if the witness were divested of such interest he became competent, (b) The 10 & 11 Vic, c 9, re-enacted the provisions of the 9 Vic, c. 3, and the 16 Vice 19, Con. IStats. U. C, c 32, removed the incapacity of crime or interest. This latter Statute did not supersede the former, and both are Ibund- ed on the same principle, namely, to prevent the exclu- sion of witnesses, on the ground of interest in the subject matter of enquiry, the iirst being applicable to enquiries relative to forgery, the latter, general, and also removing the disqualification attached to a conviction lor crime, (c) Thj 32 & 33 Vic, c 19, s. 54 and e. 29^ s. 02, now em- body all the provisions of the former enactments on these points. Where the prisoner was indicted for forging an order for the delivery of goods, and on the trial the only wit- nesses examined were the person whose name was forged and the person to whom the order was addressed, and who delivered the goods thereon, and, there being no corroborative evidence, it was held, that, under the pro- viso in the 10 & 11 Vic, c. 9, s. 2], there was not suffi- cient evidence to support a conviction, (a?) (a) Beg. v. Dunhp, 15 U. C. Q. B. 118. (6) JReg. v. Giles, 6 U. C. C. P. 86, per Draper, C. J, (c) lb. 86, per Draper, C. J. (rf) Beg. V. Giles, 6 U . C. C. P. 84. As to what is sufficient corroboration, see Beg. V. M'Donald, 31 U. C. Q. B. 3;i7. 370 CRIMINAL LAW OF CANADA The offence of forgery is not triable at the Quarter Sessions, (a) Great care was formerly requisite in describing the in- strument in an indictment for forgery, but now it is suf- ficient to describe the same by any name or designation, by which the same may be usually known, or by the purport thereof, without setting out any copy or fac sim- tie thereof, or otherwise describing the same or the value thereof, {b) It is not necessary, in an indictment for forgery, to allege an intent to defraud any particular person, but it is sufficient to allege that the party accused did the act with intent to defraud (c) ' Where goods were obtained by false pretences, through the medium of a forged order, the uttering of which was felony, the iiidictment must formerly have been for the felony, otherwise an acquittal would have been directed on the ground that the misdemeanor was merged, (d) In an indictment for forging a receipt, it must be alleged that such receipt was either for money or goods, etc., as mentioned in the Con. Stats. Can., c. 94, s, 9. (e) M Where the instrument is set out in hecc verba, in an in- dictment for forgery, the description of its legal character is surplusage, and unnecessary. (/) Where an objection was taken to an indictment for forgery, that it concluded contra formam statuti, and that there was nothing to shew that the offence was against any Statute : — Held, that this averment was of no importance, for, if the offence was one against the Statute, it was sufficiently proven, and, if not against the Statute, (a) Reg. v. M'Donald, 31 U. C. Q. B. 337 ; Beg. v. Dunlop, 15 U. C. Q. B. 118. fb) 32&33 Vic. c. 19. s. 49. (c) See 8. 51. (d) R. V. Evans, 5 C. & P. 563. But see now 32 & 33 Vic, c. 29, s. 50, ante, p. 78. (c) Reg. V. M'Corkill, 8 L. C. J. 283. (/) Beg. V. Carson, 14 U. C. C. P. 309; Beg. v. WUliams, 2 Den. C. C. 61. CHEATS AND FRAUDS. 371 Sut an offence at common law, the allegation was im- material and unnecessary, {a) It is no deibnco to an indictment for forging a note,' that the prisoner may have expected, and fully intended^ to pay it when it became due. (6) The olfence of forgery, at common law, was only a misdemeanor, and it fell within the general class of cheats, (c) Cheats and Frauds. — These offences at common law consisted in the fraudulent obtaining the property of an- other, by any deceitful and illegal practice or token, short of felony, which affects, or may affect, the public, or such frauds as are levelled against the public justice of the realm, {d) ' ' " ' ^ ' ^ In the case of forgery, it was sufficient that the party might he prejudiced by the false in^tranient, but nothing could be prosecuted as a cheat at common law without an actual prejudice, which was an obtaining on the statute 33Hy. 8. («; "• ^ ' ''■' •■■ ^ -"' ■■■ ' '■ -■•:. -i' If a person, in the way of his trade or business, put, or suffer to be put, a false mark or token upon any article, so as to pass oil" as genuine that which is spurious, if such article be sold by such false token or mark, the person so selling may be indicted for a cheat at common law, but the indictment must allege that the article was passed of!" by means of such false token or mark. Where an indictment alleged that the prisoner, being a picture dealer, knowingly kept in his shop a picture whereon the name of an artist was falsely and fraudu- lently painted, with intent to pass the picture off as the original work of the artist whose name was so painted, (a) Reg. v. Carson, 14 U. C. C. P. 309; Reg. v. Williams, 2 Den. C. C. 61. \h) Reg. v. Craig. 7 U. C. C. P. 244. (c) 2 1iu8H. Cr. 709e<«cg. \d) Reg. v. Roy, 11 L. (J. J. 94, per Drummond, J j and see 2 Russ. Cr. 613» (e) 2 KusB. Cr. 613 ; Ward's case, 2 titr. 747. 372 CRIMINAL LAW OF CANADA. .. and that he sold the same to H. F., with intent to de- fraud, and did thereby defraud him, but without stating /5, that the picture was passed off by means of the artist's f name bein^ so falsely painted : — Held, that such painting of the artist's name was putting a false token on the pic- ft ture, and that the selling by means thereof would be a ; cheat at common law, but that the want of such last averment was fatal, (a) .>.>".<, .i!'> ■ / Where a person contracts to deliver loaves of bread, of , , a certain weight, at a certain price, the delivery of a less quantity, {i. e., less in weight,) than that contracted for, is a mere private fraud, and not indictable, if no false weights or tokens have been used, (b) .. , - ,.-5 False Personation. — Falsely jiersonating a voter at a municipal election is not an indictable offence. Our sta- , tute law contains no provision on the subject, nor is it an . offence at common law. (c) It would seem that, in an indictment for this offence, there should be an averment negativing the identity of the defendant with the voter suggested to be personated, (d) Falsely assuming to vote in the name of another per- son, whose name appears on the list of voters, is made a misdemeanor, by Con. Stats. Can. c. 6, ss. 60 & 87, and can be tried only in a Criminal Court, and the fine im- posed on conviction in such Court, (e) A person cannot be convicted under the 14 & 15 Vic, c. 105, s. 3, of personating a " person entitled to vote," if the person personated be dead at the time, as the words can only mean a person entitled to vote at the time when the personation takes place. (/) To complete the offence of inducing a person to per- (o) Reg. V. CI088, 4 U. C. L. J. 98 ; jDears. &, B. 460 ; 27 L. J. (M. C.) 54. (6) Reg. v. Eagleton, 1 U. C. L. J. 179 ; Dears, 515 ; 24 L. J. (M. C.) 158. Ic) Meg V. Hogg, 25 U. C. Q. B. 66. ; Reg. v. Dent, 1 Den. C, C. 159. (dj lb. 68, per Hayarty, J. (e) Barrettey. Bernard, 14 L. C. E. 435. (/) Whiteley v. Chappell, L. R. 4 Q. B. 147. MALICIOUS INJURIES. ' 373 sonate a voter, at a municipal election, under the Imp. Act, 22 Vic, c. 35, s. 9, it is not necessary that the per- sonation should be successful, and a conviction for the offence was held good, though it did not set out the mode or facts of the inducement. («) ■', /"ir Malicious Injuries. — Injuring or destroying private property is, in general, no crime, but a mere civil trespass, over w^hich a Magistrate has no jurisdiction, unless by Statute, {b) The 32 &L 33 Vic, c 22, contains provisions respecting malicious injury to property ; but, to bring a case within this Statute, the act must have been wilfully or malici- ously done, (c) But malice conceived against the owner of the property, in respect of which it shall be committed, is not necessary, {d) It is not necessary that the damage done should be of a permanent kind. Plugging up the feed pipe of a steam engine is an offence within s. 19 of this Act. The prisoner plugged up the feed-pipe of a steam engine, and displaced other parts of the engine in such a way as rendered it temporarily useless, and would have caused an explosion if the obstruction had not been discovered, and, with some labour, removed : — Held, that he was guilty of damaging the engine, with intent to render it useless, within the meaning of this clause, (e) It was held under the former Statute, 4 &; 5 Vic, c. 26, s. 5, the words of which were not so comprehensive as the present Statute, that an apparatus for manufacturing potash, consisting of ovens, kettles, tubs, etc, was not a machine or engine, the cutting, breaking, or d imaging of which was felonious. (/) (a) Reg. v. Hcuiue, 12 W. R. 310 (b) Powell V. Williamson, 1 U. (J. Q. B. 155, per Bobinaorf C. J. (c; Powell V. Williamson, supra. (rf) 8. (iG. (e) Raj. V. Fisher, I.. R. 1 0. C. R. 7 ; 35 L. J. (M. C.) 57. (/) Reg. V. Doylierty, 2 L. C. E. 255. 374 CRIMINAL LAW OF CANADA. Under s. 45 of the 32 «fe 33 Vic., c. 22, upon an indictment for maliciously wounding a horse, it is not necessary to prove that any instrum nt was used to inflict the wound, and the word " wound " must be taken in the ordinary sense, (a) . • - •■■ Ss. 20 & 28 of the 4 & 5 Yic, c. 26, gave a summary remedy, not for trespassing on the close, but for malicious injuries to the tree. (6) A summons for malicious injury to property, under the former Statute, must have been upon complaint under oath, and a con^dction stating that the offence complained of was committed "depuis environ huit jours," was held bad for want of certainty, (c) The oflfence of wilfully injuring a fence, etc., under the (N. B.) 1 Rev. Stats., c. 153, s. 11, is a misdemeanor, not punishable by summary conviction, {d) Arson at common law is an offence of the degree of felony, and has been described as the malicious and wil- ful burning of the house of another, (e) It is to be observed that the burning must be of the house of another, but the burning a man's own house in a town, or so near to other houses as to create danger to them, is a great misde- meanor at common law. (/) The owner of a house would, at common law, commit no offence by destroying it, whether by fire or by pulling it down to the ground, provided that, in so doing, he did not infringe the maxim, sic utere tuo ut alium nan Icedas, and even by non-observance of that rule he would only commit a civil injury, and not a crime, (g-) Arson, at common law, being an injury to the actual (a) ^ a) Beg. v. Bullock, L. R. 1 C. C R. 115; 37 L. J. (M. C.) 47. 6) Madden v. Farley, 6 U. C. Q. B. 213, per Bobinaon, C. J. c) Ex parte Hook, 3 L. C. R. 496. (o) Ex parte Mulhtm, 4 Allen, 269. (e) 2 Ru88. Cr. 1024. (/) lb. Ql) Beg. V. Bryan$, 12 U. C. C. P. 163-4, per Draper, C. J. ./■'I'/ ARSON. .',>:;. ;:!■' 375 possession, and not merely a wrong in destroying a valu- able property, when the Legislature extends the limits of the crime we must construe their enactments strictly, (a) By the 32 & 38 Vic, c. 22, s. 3, the setting fire to any house, whether the same is then in the possession of the offender or in the possession of any other person, is made felony ; and now, under this Statute, it is immaterial whether the house be that of another or of the defendant himself. The words in this Statute are " set fire to" merely, and, therefore, it is not necessary to aver i.'i the indictment that the house, etc., was burnt, nor is proof required that it was actually consumed. (6) But within this Act, as well as to constitute the offence of arson at common law, there must be an actual burning of some part of the house, a bare intent or attempt to do it is not sufficient, (c) Where a small faggot, having been set on fire on the boarded floor of a room, the boards were thereby " scorched black but not burnt," and no part of the wood was consumed, this was held not a sufficient burning, (d) Now, by s. 8 of the Statute, setting fire to any matter or thing, being in, against, or under any building, under such circumstances, that if the building were thereby set fire to, the offence would amount to felony, is made felony. The burning must also be malicious and wilful, other- wise it is only a trespass. No neghgence or mischance, therefore, will amount to such a burning, (e) But malice against the owner of the property is not necessary. (/) The decisions with respect to burglary apply also to ■. 1 .- '( f, , (a) M'Nah, v. M'Gfrath, 5 U. C. Q. B. 0. S. 522, per Bobirmm, C. J. (6) R. V. Salmon, R. & R. 26 : it v. Stallion, 1 Mood. (J. C. 398 : Arch. Cr. Pldg. 509. (c) lb. (d) R. V. Bussell, G. & Mar. 541. (e) 2 Rubs. Cr. 1025. (f) 32 & 33 Vic. c. 22, s. 66. 376 i' CRIMINAL LAW OF CANADA. arson, as to what may be considered a house, shop, etc. (a) t. A shop is defined to be a place where things are pub- licly sold. It also has another signification, as a room where some kind of manufactures are carried on, as a shoemaker's shop, etc. ; but this sense is merely confined to common speech, and the Legislature does not generally use the word in this sense, and in the 3 Wm. 4, c. 3, they clearly did not, because buildings used in carrying on any trade or manufacture were protected under a separate and distinct provision, although the term shop had been used before, and, in fact, by their adding the qualifica- tion used, in carrying oro any trade or manufacture, the Legislature evinced that they intended to have reference to the purpose for which the building was actually used, at the time of the offence, {b) Where, on an indictment under this Statute, it appear- ed that the building set fire to had not, for a year or more, been occupied as a shop ; it contained some iron in the cellar, but was otherwise not inhabited for any purpose ; and it was contended that the building was a shop, with, in the meaning of the Statute, but, per Robinson, C.J., (c) it was clearly not the intention of the Legislature to make the burning of any and every building arson, and the reason which may have led to including dwelling- houses, bams, or shops, can only be intended to apply to buildings occupied, as dwelling-houses, barns, or shops. Not, that a dwelling-house, etc., can only be regarded as being legally such at the very moment when it is actually being used for its appropriate purpose. If left for a mo- ment animo revertendi it is still the dwelling-house of its possessor. A mere building, though fitted up, or intend- (a) M'Nah v. M'Grath, 5 U. C. Q. B. 0. S. 522. (bj APNab V. M'OnUk, mpra, 520. (cj lb. 619. ,"' :•' ARSON. •' 377 ed, for any of these purposes, does not acquire its char- acter until it has been appropriated to its proper purpose, and, after it has been so appropriated, the use must be continued to the time of the offence, or, if discontinued, must be discontinued under such circumstances as indi- cate an intended immediate resumption. A small shanty, about twelve feet square, slightly con- structed with boards placed upright, having a shed-roof of boards but no floor, nor any windows or openings for windows, having, however, a door not hung but fastened with nails, being used by a carpenter who was putting up a house near it, as a place of deposit for his tools and window-frames which he had made, but in which no work was carried on by him, and which had not been used as a workshop at any time, to any degree, was held not a building used in carrying on the trade of a carpen- ter, within the 4 & 5 Vic, c. 26, s. 3. (a) A building, within the 32 & 33 Vic, c 22, s. 7, need not necessarily be a completed or finished structure : it is sufficient that it should be a connected and entire structure, {b) The building set fire to was one of seven, built in a row, intended for dwelling-houses, and built, m part, of machine-made bricks, ail the walls, external and inter- nal, of the house, being built and finished, the roof being on and finished, and a considerable part of the flooring laid. The internal walls and ceiling were prepared, and ready for plastering, and the house was in a forward state towards completion, but was not completed: — Held to be a building within the meaning of this section. Where the question of building or no building is pro- perly left to the jury, their finding is conclusive, (c) (a) Req. V. Bmith, 14 U. C. Q. B. 546. (h) Re(j. V, Manniny, L. R. 1 0. C. R. 338. (c) lb. • 378 ' CRIMINAL LAW OF CANADA. ' "Where the offence consists of the setting fire to the house of a third person, the intent to injure that person is inferred from the act, for every person is deemed to intend the natural consequence of his own act. (a) But this doctrine can only arise where the act is wilful ; and, therefore, if the fire appear to be the result of accident, the party who is the cause of it will not be liable. On the other hand, where the defendant is charged with setting fire to his own house, the intent to defraud can- not be inferred from the act itself, but must be proved by other evidence, {b) . •■■ - . , It has been held, on an indictment under the Con. Stats. Can., c. 93, s. 4, against a person for setting fire to his otvn house, that it was necessary to prove an intent to injure or defraud, in order to shew the act to be un- lawful and malicious, within the meaning of the [Sta- tute, (c) The Court will infer the act to be unlawful and malicious when the intent to injure or defraud is shev;n. (a, An indiciment, under this Statute, need not have alleged the intent 'o injure or defraud, as the Statute did not make the intent part of the crime, and differed from the English in this respect, (e) Tie 32 & 33 Vic, c. 22, s. 3, makes the intent part of the crime, and it is apprehended that the intent must now be alleged in the indictment, notwithstanding the above cases. (/) In Greenwood's case, the prisoner being indicted for unlawfully and maliciously attempting to burn his own house, by setting fire to a bed in it, it appeared in evi- dence that the house in question was so closely adjoining (a) See E. v. Farrington, R. & R. 207. (h) See Arch. Cr. Pldg. 511-2 ; R. v. OiUon, R. & R. 138. (c) Reg. v. Bryans, 12 U. (J. C. P. 161. (d) lb. (t) Reg. V. Bryant, supra ; Reg, v. Greenwood, 23 U. C. Q. B. 250. (f) See Arch. Cr. Pldg. 508. ARSON. 379 to another house, both being of wood, and the space be- tween the two being only a few inches, that it would be next to impossible that the one should be burnt without also burning the other; that the dead body of a woman was in the bed at the time ; that her death had been caused by -violence ; that she had been recently delivered of a child, whose body was found in the kitchen, and that she had lived in the house since it had been rented by the prisoner, who frequently went there at night. It was also shewn that the prisoner had been indicted for the murder of this woman, and acquitted, and the record of his acquittal was put in. This evidence was objected to, as tending to prejudice the prisoner's case ; but the Court held it admissible, for, the house being the prisoner's, it was necessary to shew that his attempt to set fire to it was unlawful and malicious, and that these facts would prove it, and might also satisfy the jury that, the murder being committed by another, the pri- soner's act was intended to conceal it. (a) ; i > i > The intention must be to injure some person who is not identified with the defendant. Therefore, a married woman cannot be indicted for setting fire to the house of her husband, with intent to injure him. (b) An in- dictment on s. 3 of the 32 & 33 Vic, c. 22, must allege the intent to injure or defraud, (c) Where the prisoners are indicted under the 32 «fe 33 Vic, c. 22, s. 3, for unlawfully, maliciously, and feloni- ously setting fire to a shop " of and belonging to " one of the prisoners, the averment of ownership is an imma- terial averment, which may be rejected as surplusage, and need not be proved ; and an intent to injure another person, whose name is not stated in the indictment, may (a) 23 U. C. Q. B. 250. (bj Reg. v. Mwrch, 1 Mood. U. C. 182; Arch. Or. Pldg. 512. (c) Beg. V. Faice, 1 C. & K. 73. 380 ^' CRIMINAL LAW OF CANADA. be proved in support of the iiidictmeit ; for, by p. 68 of the Act, it is not necessary to allege an intent to injure or defraud any particular person, (a) The word " arson" is not used as a term of art, as " murder," or the like, in legal documents ; but is used to express what indictments describe as wilfully, malici- ously, and feloniously, setting lire to a house, etc. (6) t •' The prisoner was charged with inciting one W. to attempt feloniously, unlawfully, and maliciously to set fire to a certain dwelling-house, by then and there satu- rating a blanket with coal oil, and placing it against said dwelling-house, and sprinkling coal oil upon the doors and sides thereof, and attempting to apply a burning match to said oil, said house being at the time inhabited. The evidence shewed that W., after arranging, under the prisoner's directions, the saturated blanket, so that, if the flame were communicated to it, the building would have caught fire, lighted a match, and held it in his fin- gers till it was burning well, and then put it down to- wards the blanket, and got it within an inch or two of the blanket, when the match went out, the blaze not touching the blanket, and he throwing away the match, and leaving, without making any second attempt. No fire was actually communicated to the oil or blanket : — Held, that these were overt acts immediately and directly tending to the execution of the principal crime, (c) and that the prisoner was properly convicted under the 32 & 33 Vic, c. 22, s. 12, of an attempt to commit arson, (d) On an indictment under the corresponding English sec. of 32 & 33 Vic, c. 22, s. 8, it appeared that the prisoner, from ill-will and malice against a person lodging in a (a) Retj. V. Newboult, L. R. 1 C. C. R. 344. 1 6) Re Anderson, 11 U. C. C. P., 09, per Hagartij, J. {c) See ante, p. 85. ((/) Rey. V. Goodman, 22 U. C. C. P. 338. t(\fM , ARSON. .v(uni , 381 house, made a pile of her goods on the stone floor of the kitchen, and set fire to them, under such circumstances that the house would almost certainly have been burned, had not the police extinguished the fire before the house was actually ignited. The Judge, at the trial, told the jury that, if the house had caught lire from the burning goods, the question whether the offence would have amounted to felony would have depended upon whether such a setting fire to the house would have been malici- ous, and with intent to injure, so as to bring the case within the corresponding section of 32 & 33 Vic, c. 22, s. 3 ; and that, though the prisoner's object was only to destroy the goods, and injure the owner of them, and not to destroy the house, or injure the landlord, yet, if they thought he was aware that what he was doing would probably set the house on fire, and so necessarily injure the owner, and was at best reckless whether it did so or not, they ought to find that, if the buildhig had caught fire, from the setting lire to the goods, the offence would have been felony, otherwise not. The jury found that the prisoner was guilty, but not so that, if the house had caught fire, the setting fire to the house would have been wilful and malicious : — Held, that, upon the finding of the jury, the prisoner was not guilty of felony ; for their finding was only that the goods were set on fire, with intent to injure the owner of the goods, and there was no section in the Act which makes the wilful and malicious setting fire to goods felony, (a) It is a felony, under 14 & 15 Vic, c. 19, s. 8, coupled with 7 Wm. 4, and 1 Vic, c, 89, s. 3, for a man to set fire to goods in a house in his own occupation, with intent to defraud an insurance company, by burning the goods. One of these Acts makes it felony to set fire to a house, (ffl) Beg. V. Child, L. E. 1 C. C R. 307. 382 CRIMINAL LAW OF CANADA. with intent to defraud. The other, felony to set fire to- goods in a house, the setting fire to which house would be felony. If the intention to defraud is meant to extend to the defrauding of any person who may be defrauded by the effects in the house being destroyed, then, in this case, it would bo felony to set fire to the house ; but setting fire to goods in a house, the setting fire to which house would be felony, is felony, (a) . Upon an indictment under 7 Wm. 4, and 1 Vic, c. 89, 8. 10, for setting fire to a stack of grain, it was proved that the prisoner set fire to a stack of flax, with the seed in it, and the jury found that flax seed is grain : — Held, that a conviction upon the above facts and finding of the jury was right. (6) Perjury and Subornation of Perjury. — Perjury at com- mon law is defined, to be a wilful false oath by one, who being lawfully required to depose the truth in any pro- ceeding in a Court of Justice, swears absolutely, in a matter of some consequence to the point in question, whether he be believed or not. {a) Subornation of per- jury, by the common law, is an oflence, in procuring a man to take a false oath, amounting to peijury, who ac- tually takes such oath, (d) These offences are now mis- demeanors, by the 32 & 33 Vic, c 23. s. 1. An oath or affirmation, to amount to perjury, must be taken in a judicial proceeding, before a competent juris- diction ; and must also be material to the question de- pending, and false, (e) The swearing falsely by a voter, at an election of alder- man or common councilman for the city of Toronto, that he is the person described in the list of voters, not being (a) Reg. v. Lyons, 5 U. C. L. J. 70 ; Bell C. C. .38. (b) lie;/. V. Spencer, 3 U. C. L. J. 19: Dears. & B. 131 : 26 L. J. (M. C.) 16. (c) 3 Russ. Cr. 1. (d) lb. (e) R. V. Aylett, 1 T. R. 69 ; 3 Russ. Cr. 2. PERJURY. 38$ made perjury by any express enactment, is not an oath upon which, by the common law, perjury can be assigned, not being in any judicial proceeding, or anything tend- ing to render effectual a judicial proceeding, (a) This would probably now be perjury, under the 32 & 33 Vic. c. 23, s. 2. Taking a false oath is not an offence in Jaw, unless it be in a judicial proceeding, or on some other lawful occasion, on which it has been made an offence by law to swear falsely, (b) Wilful and corrupt false swearing before a local marine board, lawfully constituted, upon a matter material to an enquiry, then being lawfully investigated by them, in pursuance cf the 17 & 18 Vic, c. 104, is perjury and indictable, as such, for it is in a tribunal invested with judicial powers. (6') . : , " : ; .- Although a summons in bastardy is irregularly issued, yet, if the defendant actually appears, he thereby waiv^es any irregularity there might be in the process ; conse- quently the proceeding of the Justices, in taking his evi- dence, is a valid judicial proceeding sufficient to make the prisoner's false swearing, in the course of it, nerjury. (d) Where the affidavit is not taken in a judicial proceeding, and, therefore, does not constitute perjury in its strict sense, the party may nevertheless be indicted for a mis- demeanor at common law. (e) In the latter case, A. was indicted for perjury in an affidavit made, under the Bills of Sale Act, for the purpose of having a bill of sale filed. The indictment was in the ordinary form. The affidavit was sworn before a Commissioner for taking affidavits in the Court of Queen's Bench. A. having been found guilty, (a) Thomas v. Piatt, 1 U. C, Q. B. 217. (b) Hoylc V. Hogle, 16 U. C. Q. B. .520, per Robinson, C. J. (c) Beg. \. Tomlinson, L. R. 1 C. C. R. 49 ; 36 L. J. (M. (J.) 41. (d) Reg. V. Fletcher, L. R, 1 C. C. R. 3'20. (e) R. V. Chapman, 1 Den. 432, 2 C. & K. 846 ; R(^. v. Hodgkiss, L. R. 1 C. C. R. 212; 39 L. J. (M. C.) 14. 384 CRIMINAL LAW OF CANADA. it was held that the offence did not strictly constitute perjury ; but that, nevertheless, the conviction should be affirmed, because A. was guilty of taking a false oath, where an affidavit was required for the purposes of a * Statute, which offence was sufficiently charged in the indictment, and was, under the circumstances, a common law misdemeanor, to the punishment, ibr which he might be sentenced. («) It has been held that wilful false swearing in any affi- davit made in a judicial proceeding, and sworn before a Commissioner, legally authorized to take such affidavit, is perjury at common law ; (b) but this case must be treat- ed as modiiied by the preceding one. It is quite clear, from numerous authorities, that, unless the party administering the oath has competent author- ity to administer it, the false swearing will not amount to perjury. There must be authority to administer the oath in the particular proceeding, in which the witness is sworn. An affidavit made by the priso .er, in a review case trip J before a Justice of the Peace, the affidavit being sworn before a Commissioner, authorized to take affida- vits in the Supreme Court, cannot under the (N.B.) 1 Rev. Stat. c. 161 s. 30, be made the subject of an indict- ment for perjury, for the words " officer authorized " mean an officer authorized to take affidavits in the par- ticular proceeding, in which the witness is sworn, (c) The person administering the oath must be exercising his jurisdiction, at the time the oath is administered, (d) On an indictment for perjury, committed upon the hearing of a complaint before a Magistrate, the informa- tion and complaint having been proved : — Selcl^ upon a (aj Beg. v. Hodgkiss, L. R. 1 C. C. R. 212. (b) Milner v. Gilbert, 3 Kerr, 617. (c) Beg. V. Mcintosh, 1 Hannay, 372. (d) M'Adam v. Weaver, 2 Kerr, 176. PERjuuv. '' 885 case reserved that, to fpve t le magistrate jurisdiction, it was unnecessary to shew any summons, issued or any stop taken, to bring the person comphiined of before the Magistrate, for, so long as he was present, the manner of his getting there was immaterial, (a) The complaint before the magistrate was for selling liquor without licence, contrary to the f'Ont.) 32 Vic., c. 82, and the indictment did not shew where the liquor was sold, and s. 2') of the Act requiring the proceedings, to be carried on before Magistrates, " having jurisdiction in the municipality, in which the offence is committed, " it consequently did not appear from the indictment that the Magistrate had jurisdiction, to hear the complaint or administer the oath, and the indictment therefore was insuthcient in law. It would seem that it was also defec- tive, for not shewing that the person complained against was present, or that a summons issued, and that the Ma- gistrate was authorized to proceed ex parte, if the person complained against did not appear, after due service of the summons upon him. {b) Defendant, by verbal agreement, engaged to work as a farm servant with one T., on the 9th of April, 1860, at .S8 per month, the bargain being, that he should work for hall' a month, and as long after as he was found to suit, or until the fall ploughing was done. He left on the 21st of November, having told T,, about three weeks previously, that he would like to go then, to which T. assented. Defendant complained of T., before a magistrate, for not paying his wages, and was indicted for perjury commit- ted on that occasion, and found guilty : — Held, that this could not be treated as a hiring for a year, or any period beyond it, and that it was such a hiring as came within (a) Reg. v. Mason, 29 U. C. Q. B. 431. (,b) lb. 4;J4, per Wilam, J. Y :38() CRIMINAL LAW OF CANADA. the Con. Stats. U. C, c. 75, and under the 12th section of the Act, gave the Magistrate jurisdiction to adjudicate on the matter, and afford redress, and the conviction was alfirmed. (a) The prisoner was indicted for perjury com- mitted before a Police Magistrate, upon a summons taken out by him as an apprentice against his master, under the 4 Geo. 4 c. 34. s. 2, for non-payment of wages; — Heldy that the Magistrate had jurisdiction to adjudicate upon the complaint, although the summons was not taken out until the relation of master and servant had ceased, and that, at any rate, he had jurisdiction to enquire into the existence of 'hat relation, (b) The prisoner was convict- ed of perjury, alleged to have been committed upon the hearing of an application for an order of affiliation. The summons to the prisoner wa ; not not produced on the trial, nor was secondary evidence given of its contents, nor was it proved that such summons had been served on the prisoner. The information laid by the mother was duly proved, and it was shewn that the putative father appeared before the Justices, and that evidence was given on both sides, and the prisoner gave the evi- dence which was the subject of the indictment for per- jury : — Held, that the father having appeared, and not having raised any objection to the summons, it was not necessary, in order to shew jurisdiction in the Justices, to refer to it, or give any evidence of its existence on the trial for perjury, (c) , ' A woman, having obtained judgment against the de- fendant in a County Court, married, and afterwards, in her maiden name, took out a judgment summons against him in another district, which, on the hearing, the Judge amended by inserting her husband's name, and the de- (a) Re.;, v. Walker, 21 U. C. Q. B. .{4. (/y) Rcij. V. rroud, L. R. 1 C. C. R. 71. (c) Rc■■,,; •. ■, .. ..:■ :.■ ■ r - ^^' - ; The condition of the policy, in this case, required the assured to make an affidavit touching a loss by fire, in which the company was interested, and the clause of the Statute above referred to empowered the Justice to ad- (a) Reg. v. Pearce, 9 U. C. I.. J. ;W3 ; .3 B. & S. 531 ; 32 L. J. (M. C. ) 75. (fc) Rey. V. Qagan, 17 U. C. C. P. 530. 388 CRIMINAL LAW OF CANADA. minister an oath, in such case coming within the condi- tion; consequently, proof of the policy and condition was necessary to shew the authority of the Justice. , By the 32 & 33 Vic, c. 23, s. 4, the Justice or Commis- sioner is now required to take the affidavit or declara- tion. ■ ■ , . . ■ •.^^,,.•■ ■ On an indictment for perjury, on the hearing of a com- plaint for trespass in pursuit of game, it appeared that the complaint alleged that the defendant was in the close for the purpose of destroying game, but it did not allege that it ^'"^as for the purpose of destroying game there. The complaint was held to be sufficient in form to give the Justices jurisdiction, so as to make false evidence, on the hearing, perjury, (a) The Clerk of a Division Court, acting under the 13 & 14 Vic, c. 53, s. 102, issued an interpleader summons on his own authority, without the bailiff" 's request. The Statute requires the summons to be issued upon the appli- cation of the officer charged with the execution of the pro- cess. Both parties attended before a Barrister appointed by the Judge of the Court, who was ill. They thereby submit- ted to the jurisdiction, and an order was made under this section. The Judge afterwards granted a new trial, which took place. The defendant was convicted of per- jury, committed on the hearing, after the granting of the new trial : — Held, that both parties having appeared in the first instance, the proceedings then could not be con- sidered void, for want of a previous application by the baiUff', and were, consequently, final and conclusive. It was, therefore, not competent for the Judge to order a new trial, under s. 84 of this Act; consequently, the proceedings on the second trial were irregular and extra- judicial, and the false swearing taking place on it, the (o) Beg. V. Wettern, L. R, 1 C. C. R. 122; 37 L. J. (M. C.) 81. PERJURY. 389 conviction was illegal, as there was no authority to ad- minister the oath, (a) The prisoner being indicted for perjury, in giving evi- dence upon a charjiC of felony against one E. Gr., it appeared that the ''ony, if committed at all, was com- mitted in the County i>t Middlesex. The Justices, before whom the examination took place, entertained the charge and examined the witnesses within the City of London. The defendant's counsel objected, at the trial, that the Justices, being Justices of the County of Middle- sex, had no jurisdiction, sitting in London, to examine into an offence committed outside the limits of that city. The objection being overruled, the point was reserved for the opinion of the Court : — Held, that the conviction was illegal on the ground taken, and it was, therefore, reversed, (h) The provisions of the 23 Vic, c. 2, s. 28, that all affida- vits required therein may be taken before " any Justice of the Peace," does not empower a Justice of the Peace to administer the oath anywhere in the Province, but only in the place where he acts as such Justice. The same interpretation of the Act applies to Commissioners tor taking affidavits mentioned therein, (c) Where the jurat of an affidavit states the place, it is /yrma/aae evidence of administering the oath there, {d) A person is indictable who gives false evidence before a Grand Jury, on a bill ot indictment, and the false swear- ing may be proved by the evidence of other witnesses, examined before them on the same bill, (e) That part of the oath upon which the perjury is assigned must be material to the matter then under the considera- Ut) Raj. V. not II, VA U. C. Q. B. 398. ~ "" "~" (b) Itaj. V. Roll), 14 U. C. C. P. 307. (0) Rcii. V. Atkinson. 17 U. C. C. P. 295. (d) lb. 301, per J. Wilson, J. (c) R. y.Hwjlm, 1 C. & K. 519; Arch. Cr. Pldg. 815. 390 CllIMINAL LAW OF C N'ADA. tion of the Court, (a) But perjury may be assigned upon a man's testimony as to the credit of a witness, (b) So every question, in cross-examination, which goes to the witness's credit, as whether he has before been convicted of felony, is material for this purpose, (c) In R. V. Tyson (b) a doubt was however expressed by Kelly, C. B., and Byles, and Lush, J. J., whether a false statement, which goes only to the credit of the person making it, can be the subject of an assignment of per- jury, (d) Upon the trial of one S. for robbery, the prisoner, in support of an alibi, swore, lirst, that S. was in a certain house at the time of the robbery ; secondly, that S. had lived in that house for the last two years ; and, thirdly, that he had never been absent from it more than two or three nights together during that time. In fact, S. had been confined in prison during one of these two years: — Held, that the second and third allegations were material, as tending to render more credible the truth of the first, and that the prisoner was rightly convicted of perjury assigned upon them, (e) • - : , Where a prisoner, charged with robbery before a Magistrate, having cross-examined the prosecutor, whe- ther he had not, the day before that of the alleged robbery, met him (the prisoner) in company with M., and pro- posed to him to commit a burglary, and the prosecutor having denied this, the prisoner called M. to prove it, the Court held that M.'s evidence was not material to the Ca) R. V. Griepc, 1 Ld. Raym, 25G ; B. v. Niehol, 1 B. & Aid. 21 ; R. v. Toionsend, 10 Cox, 356 ; 4 F. & F. 1089 ; Arch. Cr. Pldg. 810. (6) 2 Salk. 514. (c) R. V. Lavey, 3 C. & K. 26; R. v. Overton, 2 Mood. (J. C. 263; C. k Mar. 0.55. ((/) See also R. v. Gibbona, L. & C. 109 ; 31 L. J. (M. C.) 98 ; Arch. Cr. Pldg. 817. {() Rco. V. Tyaun, L. R. 1 C. C. R. 107 ; 37 L. J. (M. C.) 7 ; 16 W. R. 317. PERJURY. 391 issue, so that it could be made the subject of an indict- ment for perjury, (a) On the trial of A. for perjury in an affidavit made by him, and used on the taxation of costs, the signature to the affidavit was proved to be in A.'s handwriting, but the Commissioner, who had administered the oath, was un- able to identify A., as the person who made the affidavit. B. was therefore called as a witness, and swore that the affi- davit was used before the taxing-master, when A. was present, and that it was then publicly said that it was A.'s affidavit. B. was afterwards indicted for perjury on A.'s trial, and it was hold that the above evidence, given by him on that trial, was material as corroborative evi- dence of the affidavit having been made by A. (b) On the trial of an action of trover the plaintiff's case was that the defendant had tricked him out of the goods, the subject of the action, while the plaintiff was drunk. The defendant's case was that he had fairly bought the goods from the Plaintiff, who had sent for the goods from a railway station, where they were lying, had signed a delivery note for them, and had then sold them to the defendant. The defendant, who was called as a wit- ness in support of his own case, swore that the plaintiff's name on the delivery note was plaintiff's writing, and that he saw him write it. It was held that this evidence was material to the issue, and, upon which, therefore, perjury might be assigned ; the question in the action being, whether the plaintiff had been imposed on by a fraud while drunk, and it. therefore, became essential to ascertain, whether the handwriting on the delivery note, was his, as a step in ascertaining whether or not he was drunk at the time of the transaction, (c) (a) R. V. Mim-ay, 1 F. & F. 80. ' ' (b) Rcij. V. Ahop, 5 C. L. J. N. S. 159 ; 11 Cox, 2(54. -^ -'- (c) Rcy. V. Naylor, 11 Cox, 13 ; IG W. K. 374. 392 CRIMINAL LAW OF CANADA. It is still a moot point whether, on an indictment for perjury, the materiality of the matter, on which the false swearing is proved, is a question of fact for the jury, or a question of law for the Judge, but according to the better opinion, it ought to be regarded in the latter light, (a) Some doubt has been thrown upon the doctrine that the matter, upon which perjury is assigned, must be ma- terial to the enquiry. Erie C. J., in Reg. v. Mullany (b) suggested it, as worthy of careful consideration, whether a person might not be guilty of perjury, who swears falsely on a matter immaterial to the enquiry, with in- tent, to mislead the Court, (c) In this case, after judgment against A., in a County Court suit, the Judge asked him whether his names were not Bernard Edward Mullany, preparatory to making an order for immediate payment of the debt, or for payment by instalments. A. had been sued by the names Bernard Edward Mullany, and he answered that his name was Edward Mullany only. The Judge, therefore, struck out the ease. A. was indicted for perjury in stating that his name was Edwayd Mullany only, contrary to the fact as proved, and it was held that the evidence as to his name was material, and that he was therefore properly convicted of perjury, ft?^ Now, by the 32 & 33 Vic, c. 23, s. 7, all evidence, and proof whatsoever, whether given or made orally, or by, or in any affidavit, afhrmation, decla- ration, examination or deposition shall be deemed and taken to be material, with respect to the liability of any person, to be proceeded against, and punished for wilful and corrupt perjury, or for subornation of perjury. (a) Req. V. Courtney, 7 Cox, 111; 5 Ir. L. R. N. S. 434; R. v. Dunston, Ry. & M. 109 ; but see R. v. Lavai, 3 C. & K. 20 ; R. '. Goodard, 2 F. & F. 361 ; Arch. Cr. Pldg. 817-8. (b) L. & C. rm : 34 L. J. (M. C.) 111. (r) Arch. Cr. Pldg. 818. ((/) lb. PERJURY. 393 The matter sworn must be either false in fact, or if true, the defendant must not have known it to be so. But a man may be indicted for perjury, in swearing that he be- lieves a fact to be true, which he must know to be false, (a) The false oath must be taken deliberately and inten- tionally ; for, if done from inadvertence or mistake, it can- not amount to voluntary and corrupt perjury, {h) It would seem that perjury may be assigned, when the oath is administered upon the common prayer book of the Church of England, (^c^ Where, in an indictment for perjury, the defendant, was alleged to haA^e sworn that no notice of the disqua- lification of a candidate for Township Councillor had been given previous to, or at the time of holding, the election, the perjury assigned being that such notice had been given previous to the election, and the notice appearing to have been given on the nomination of the candidate objected to : — Held, that the assignment of perjury was not proved as an election, under the Municipal Act, is commenced when the returning officer receives the nom- ination of candidates, and it is not necessary to consti- tute an election, that a poll should be demanded, {d) The false oath must be clear and unambiguous. Where a joint affidavit made by defendant and one D., stated ^ ^ each for himself, maketh oath, and saith that, etc., and that he, this deponent, is not aware of any adverse claim to or occupation of said lot. The defendant having been convicted of perjury upon this latter allegation : — Held, that there was neither ambiguity nor doubt in what each defendant said ; but that each, in substance, (a) R. V. Pedlev, 1 ^.each, 327 ; R. v. ScMesinger, 10 Q. B. 670 ; 17 L. J. (M> (;.)29; Arch. Cr. Pldg. 818. (6) Ih. 818-9. (c) APAdam v. Weaver, 2 Kerr, 17G ; Rokehy v, Langston, 2 Keb. 314. (d) Reg. V. Coivati, 24 U. C. Q. B. 606. 394 CRIMINAL LAW OF CANADA. stated that he was not aware of any adverse claim to or occupation of said lot. (a) It would seem that a mag-istrate taking an affidavit without authority is guilty of a misdemeanor, and that a criminal information will lie against him for so doing, {b) To constitute perjury at common law, it is not neces- sary that an affidavit should be read or used; for the crime is complete on the affidavit being sworn to, though no use was afterwards made of it ; but, iinder the 5 Eliz. c. 9, as nothing can be an offence within it, unless some one is actually aggrieved, the affidavit must be read or used, {c) To sustain a conviction for perjury, it is not necessary that the jurat of the affidavit, upon which the perjury is assigned, should contain the ;>?«re at which the affidavit was sworn, for the perjury is committed by the taking of the oath, and the jurat, so far as that is concerned, is not material, and although through the defective jurat the affidavit could not be received in Court, yet perjury may be committed in an affidavit which the Court would refuse to read. The jurat is no part of the affidavit, (d) In the affidavit in question in this case there was no statement as to where it had been sworn, either in the jurat or elsewhere, except the marginal venue, " Canada, County of G-rey, to wit " ; but the contents showed that it related to lands in the County of G-rey, and it was proved that defendant subscribed the affidavit ; that the party before whom it purported to have been sworn was a Justice of the Peace for that County, and had resided there for some years, and subscribed the jurat as a Jus- tice of the Peace ; that the affidavit, had been received, through the Post Office, by the agent of the Crown (aj Reg- v. Atkinson, 17 U. C. C. P. 295. (b) Jackson v. Knsscl, 26 U. C. Q. B. 346, per Draper, C. J. (c) Milner v. Gilbert, 1 Allen, 57. (dj Beg. V. Atkinson, 17 U. C. C. P. 295. .' PERJURY. 395 Lands there, by whom it was forwarded to the Commis- sioner of Crown Lands, and that, subsequently, a patent lor the Lot issued to the party in whose behalf the affida- vit had been made : and this was held evidence from which it might be inferred that the aifidavit was sworn in the County of Grey, and that the jury had properly so inferred : — Held, also, that if the affidavit was sworn in the County of Grey, the proof of the swearing by the Justice of the Peace, and the taking of the oath by the defendant, were made out by proving their signa- tures, {a) > ' • ' :'':■•:. • •. It has been held ihat, on an indictment for perjury, the defendant must appear and submit to the jurisdiction of the Court, before he can be allowed to plead, and that this rule applied to misdemeanors as well as felonies. (6) An indictment for perjury charged that it was commit- ted on the trial of an indictment against A. B., at the Court of Quarter Sessions for the County of B.,on the 11th of June 1867, on a charge of larcenj: — Held, sufficient, and that it was not necessary to specify the property stolen, the ownership thereof, or the locality from which it was taken, nor to allege that the indictment was in the name of the Queen, as the Court must take judicial notice of the fact that Her Majesty alone could prosecute on a charge of larceny, (c) This decision was, to some extent, founded on the provisions of the Con. Stats. C. c. 99, s. 39 & 51. The 32 & 33 Vic, c. 23, s. 9, are the same in substance, so that the decision will still hold. Although, in an indictment for obtaining money or goods by false pretences, the property in the money or (a) See Eec/. v. Greenland, L. R. 1 C. C. R. 65, as to affidavits under the 7 Geo. 4, c. 23. (b) licfi. V. Maxwell, 10 L. 0. R. 45. (c) Reg. V. Macdonald, 17 U. V,. C. P. 635. CRIMINAL LAW OF CANADA. goods must be alleged, yet on reciting such a prosecu- tion, upon which to found a charge of perjury, it seems the same particularity would not be necessary, otherwise the false pretence should be set out, too, and it was only after a long course to the contrary that it was at length determined the false pretences should be set out in the indictment, for the specific ollence. (a) An indictment for perjury stated that a cause was pending in the County Court, in which A. and B, were plaintiffs and C, defendant ; that, on the hearing of such cause, it " became a material question whether the said A. had, in the presence of the prisoner, signed at the foot of " a certain bill of account, purporting to be a bill of account between a certain firm called A. tfc Co, and the aforesaid C, a receipt for payment of the amount of the said bill, " and that the sa* i prisoner did " falsely, cor- ruptly, and maliciously swear that the said A. did, on a certain day, in the presence of the prisoner, sign the said receipt, (meaning a receipt at the foot of the said first mentioned bill of account for the payment of the said bill,) whereas, etc. : — Held, that the indictment was suf- Kciently certain. (6) n • / / ; An indictment for perjury stated the offence to have been committed on the trial of " a certain indictment for misdemeanor," at the Quarter Sessions for the County of Salop, but it did not state what the misdemeanor was, so as to shew that the Court had jurisdiction to try it, nor did it expressly aver that the Court had such jurisdiction : — Held, that the indictment was good, (c) The 32 & 33 Vic, c. 23, s, 9, renders it unnecessary to set forth the authority to administer the oath. This Act (aj Reg. v. Macdonald, 17 U. C. C. P. 638, per A. Wilson, J. ; Rex v. Mason, 2 T. K. 581. (b) Reg. v. Webster, 5 U. C. L. J. 262 ; 1 F. & F. 515. (c) Reg. V. Dunning, L. R. 1 C. C. R. 290. PERJURY. ) 397 was passed to do away with technical forms of in- dictments, and where an indictment contains every aver- ment required by this section, it is by the express terms of the section sutticient, aithouj^h it does not contain any express or equivalent averment that the Court had com- petent authority to administer the oath, (a) .« i , . ; •■ "Where it appeared, on the face of an indictment for perjury, that the statement complained of was made be- fore a Justice of the Peace, in preferring- a charge of lar- ceny committed within his jurisdiclion, it was held unnecessary to allege expressly that he had authority to administer the oath, (b) In an indictment for perjury, v/hich charged the de- fendant with having sworn falsely in certain proceedings before Justices, wherein he was examined as a witness, the allegation of materiality averred that " the said D. U. (the defendant) being so sworn as aforesaid, it then and there became material to enquire and ascertain, etc. : — Held, bad, as not sufficiently shewing that the alleged perjury was committed at the said proceedings, and that the words " upon the trial " should have been used, (c) In 32 & 33 Vic, c. 23, s. 9, " the substance of the of- fence charged " means that the charge must contain such a description of the crime that the defendant may know what crime he is called upon to answer ; that the jury may appear to be warranted in their conclusion of guilty or not guilty upon the premises delivered to them, and that the Court may see such . a definite crime that they may apply the punishment which the law prescribes, (d) Where a prosecutor has been bound by recognizance (rt) Reg. V. Dunning, L. R. 1 C. C. R. 294-5, per Channel, B. (b) Beg. V, Callaghan, 20 U. V,. Q. B. 364. (c ) Reg. V. Ross, 1 Oldright, 083 : and see 32 & 33 Vic. c. 29, Sch. A. Perjury 291. (tZ) Reg. V. Macdonald, 17 U. C. C. P. (>38, per A. Wilson, J. ; Rex v. Home, Cowp. 682. 398 CRIMINAL LAW OF CANADA. to prosecute and give evidence against a person charged with perjury, in the evidence given by him on the trial of a certain suit, and the Grand Jury have found an in- dictment against the defendant, the Court will not quash the indictment because there is a variance in the specilic charge of perjury contained in the information, and that contained in the indictment, provided the indict- ment sets forth the substantial charge contained in the information, so that the defendant has reasonable notice of what he has to answer, (a) An indictment for perjury, based upon an oath alleged to have been made before the " Judge of the General •Sessions of the Peace, in and for the said district " [of Montreal,] instead of, as the fact was, before the " Judge of the Sessions of the Peace in and for the City of Mon- treal," that being the proper title of the Judge, may be amended after plea of not guilty, (b) Where an attempt to incite a woman to take a false oath consisted of a letter written by defendant, dated at Bradford, in the County of Simcoe, purporting but not proved to bear the Bradford post mark, and addressed to the woman at Toronto, where she received it : — Held, that the case could be tried in York ; but semb/e per Draper, C. J , if the post mark had been proved, and the letter thus shewn to have passed out of the defendant's hands in Simcoe, intended for the woman, the oiFence would have been complete in that county, and the indict- ment only triable there ; per Hagarty, J., the defendant would still, in that case, have caused the letter to be received in York, and might be tried there, (c) Qucere, if the woman had committed the offence, it should have been (a) Reg. v. Broad, 14 U. C. C. P. 168. (6) Ref/. V. Pelletier, 15 L. C. J. 146. (c) Beg. V. Clement, 26 U. C. Q. B. 297. I'EHJUUY. 399 charged as a misdemeanor, or as the statutory ofl'ence of perjury, (a) But now the 32 & 33 Vic, c. 23, s. 10, contains provi- sions as to the Ibrm of the indictment, whether the otfenco has or has not been actually committed, and section 8 provides that any person accused of perjury may be tried and convicted in any district, county, or place, where he is apprehended, or is in custody. The ordinary conclusion of an indictment for perjury, " did thereby commit wilful and corrupt perjury," may be rejected as surplusage, (b) It has been held, under the 14 & 15 Vic, c. 100, s. 1, {r) that the Judge had power to amend an indictment for perjury, describing the Justices before whom the perjury was committed as Justices for a county, where they are proved to be Justices for a borough only, (cl) By 26 Vic, c 29, s. 7, it is enacted that witnesses be- fore commissioners for enquiring into the existence of corrupt practices at elections shall not be excused from answering . questions, on the ground that the answers thereto may criminate them, and that "no statement made by any person, in answer to any question put by such commissioners, shall, except in cases of indictments for perjury, be admissible in evidence in any proceeding, civil or criminal": — Held,ih.a.t, " except in cases of indict- ments for perjury," applies only to perjury committed before the commissioners ; and, therefore, on an indict- ment for perjury, committed on the trial of an election petition, evidence of answers to commissioners appointed to enquire into the existence of corrupt practices at the election in question is not admissible, (e) , .3,, {a) Rey. v. Clement, 26 IT. C. Q. B. 297 ; see nnte, p. 84. {h) Req. V. Hodgkiss, L. K. 1 C. C. II. 212; 39 L. J. (M. C.) 14 ; iJya/is v. Reg. 11 y. B. 781. (c) See 32 & 33 Vic, c. 29, s. 71. (d) Hen. V. Weitern, L. R. 1 C C. R. 122; 37 L. J. (M. C.) 81. (e) Rej., Hi U. C. Q. B. 543; E. v. Seward, 1 A. & E. 70G ; .3 L. J. (M. C.) 103 ; E. V. Rirhardson, 1 M- & Kob. 402; R. v. Kenrick, Q. B. 4l»; 12 L. J. (M. C.) 135 ; 3 Russ. (Jr. IIG. , (c) Rc'j. V. Roi/, 11 L. C J. 92, per Drummond, J. (d) lb. (c) Rex. V. Mawbei/, 6 T. R. 636, per Grose, J. ; 3 Russ. Cr. 116. (/) Rea. V. Warburtou, L. R. 1 C. C. R. 276, per Cockburn, 0. J. ; 40 L. J. (M. C.) 22. (a) lb. 27ij, par Cockburn, C.J. ^lI: l'.:_- ^ -— : ^^- -^- — -.- CONSPIRACY. 403 with third persons, wrongfully to deprive his partner, by false entries, and false documents, of all interest in some of the partnership property, in taking accounts for the division of the property, on the dissolution of the partnership, was held to be a conspiracy, although the offence was completed before the passing of the corres- ponding English section of the 32 & 33 Vic, c. 21, s. 38, (by which a partner can be criminally convicted for feloniously stealing the partnership property) ; for the object was, to commit a ci^dl wrong, by fraud and false pretences, and that is a conspiracy, (a) It appears that an indictment lies not only wb irever a conspiracy is entered into for a corrupt or illegal pur- pose, but also where the conspiracy is to effect a legal purpose by the use of unlawful means, and this although such purpose be not effected (6) But in an indictment for conspiracy, an offence pro- fubited by penal law must be set forth either in the averment of the end or means. The indictment ought to shew that the conspiracy was for an unlawful purpose, or to effect a lawful purpose by unlawful means. Malum prohibitum, and not malum in se non prohibitum, is the only foundation either as to the end or the means, upon which an indictment for conspiracy should rest, (c) All the definitions of conspiracy shew that the offences of this nature belong to one or other of two classes. The first, where the illegal character of the object constitutes the crime ; the second, where the illegal character of the means used to attain the end is the constituent feature of the offence. In the first class of cases, it is unnecessary to state in the indictment the means by which the un- fa) Reg. V. Warburton, L. R. 1 C. C. R. 274. (6) Reg. v. Tailor's Cam. 8 Mod. 11 ; Reg. v. Best, 6 Mod. 185 ; 3 Rush. Cr. 116. (cj Reg, V. Roy, 11 L. C. J. 89-93, per Drummond, J. " ' , 404 • CRIMINAL LAW OF CANADA. lawful end was attained, or sought to be reached ; while in the second class, the means, or overt acts, must be specially set forth, (a) In this case, the object was alleged to be to " cheat and defraud private individuals ;" but as this was not neces- sarily a penal ofience, and no penal offence was shewn in the averment of the means used, the indictment was quashed. It was also held that the count should state of what thing or things the defendant intended to defraud the parties, (b) An indictment, charging that defendants, H., C, and D., were Township Councillors of East Nissouri, and T., Treasurer, that defendants, intending to defraud the Council of £300 of the moneys of said Council, falsely, fraudulently, and unlawfully, did combine, conspire, confederate, and agree among themselves, unlawfully and fraudulently to obtain and get into their hands, and did then, in pursuance of such conspiracy, and for the unlawful purpose aforesaid, unlawfully meet together? and fraudulently and unlawfully get into their hands £300 of the moneys of said Council, then being in the hands of said T., as such Treasurer, as aforesaid, was held bad, on writ of error, on the following grounds:— The money in the hands of the Treasurer was, under 12 Vic,, c. 81, s. 74, the property of the Municipal Corporation, and the intent to defraud should have been laid as an attempt to defraud the latter of its moneys ; second, there was nothing to shew what the parties conspired to accomplish ; third, the unlawful conspiracy, which is the gist of the off'ence, was not first sufficiently alleged, and the overt act stated to have been done, in pursuance of it, was not wrong or unlawful; fourth, it was not faj Reg. V. Roy, 11 L. C. J. 93, per Drummond. J. , (bJJb. _..__d ^__.. CONSPIRACY. 405 alleged that any unlawful means were had in order to get the money into the possession of the Treasurer, {a) Conspiracy is generally a matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose, in common between them. (6) Whenever a joint participation in an enterprise is shewn, any act done in furtherance of the common design is evidence against all who vv^ere, at any time, concerned in it. ic) li is clearly unnecessary to prove that all the defendants, or any two of them, actually met together, and concerted the proceeding carried out. It is suflficient if the jury are satisfied, from their conduct, and from all the circumstances, that they were acting in concert, id) But, in general, proof of concert and connection must be given before evidence is admissible of the acts or decla- rations of any person not in the presence of the pri- soner, (e) The prosecutor may go into general evidence of the nature of the conspiracy before he gives evidence to connect the defendant with it. (/) The prisoners were indicted for conspiring to commit larceny. The evidence was that the two prisoners with another boy w^ere seen by a policeman, to sit together on some door-step near a crowed, and when a well dressed per- son came up to see w^hat was going on, one of the prisoners made a sign to the others, and two of them got up, and followed the person into the crowd. One of them was seen to lift the tail of the coat of a man as if to ascertain, (a) Horseman v. Reg. !« U. C. Q. B. 543. (b) Mulcahy v. Reg. L. R. 3 E. & I. App. 317, per Willes, J. ; R. v. Brissac, 4 Ea. 171, per Gfose, J. (c) Reii. V. iHaiin, 17 U. C. 0. P. 20.5 ; and see R. v. Shellard, (t C. & P. •277; R. V. Blake, 6 Q. B. 126; 13 L. J. (M. J.) 131. (dj Reg, v. Fellowen, 19 U. C. Q. B. 48 ; and see R. v. Parsons, 1 W. Bl. .322 ; /;. V. Murphy, 8 C. & P. 2*»7. (e) 3 Russ. Or. IGl ; The Queen's Case, 2 Brod. & B. .302 ; Reg. v. Jacobs, 1 Cox, C. C. 173 ; Reg. v. Dnffield, 5 Cox, C. C. 404. CfJ R. V. Hammond, 2 Esp. 718. 406 CRIMINAL LAW OF CANADA if there was anything in his pocket, but making no visi- ble attempt to pick the pocket ; and to place a hand against the dress of a woman, but no actual attempt to insert the hand into the pocket was observed. Then they returned to the door-step, and resumed their seats. They repeated this two or three times, but there was no proof of any pre-concert other than this proceeding: — Held, not to be sufficient evidence of a conspiracy, for to sustain a charge of conspiracy, there must be evidence of concert to do the illegal act, and the doing of an act. not illegal is no evidence of a conspiracy to do an illegal act, there being no other evidence of the conspiracy than the act so done, {a) In an indictment for conspiracy to obtain money by false pretences, it is not necessary to set out the pretences, as the gist of the offence is the conspiracy, (h) But where the conspiracy is to obtain money from certain persons, it is necessary to state who they are, for the cons- piracy is to cheat them, (c) In a conspiracy to obtain goods, it is not necessary to specify the goods, or describe them, as in an indictment for stealing them, stating them as " divers goods " would be sufficient, {d) Conspiracy is an olfence at common law independently, of the 33 Ed. 1, c. 2. (e) A conspiracy to kidnap is a mis- demeanor. (/) A conspiracy to charge a man falsely with treason fel- ony or misdemeanor is indictable : but it is not an indict- 1 able offence for two or more persons to consult and i agree to prosecute a person, who is guilty, or against ' whom there are reasonable grounds of suspicion, (g) • (a) Req. V. Tanlov, 8 C\ L. J. N. S. 54 ; 25 L. T. Reps. N, S. 75. (h) Reij. V. Macdonald, 17 U. C. C. P. 638, per A. Wilson, J. ; Rex v. Gili, B. & Aid. 204. (cj lb. (d) Rec). V. Roy, 11 L. C. .T. 92, per Drummond, J. (c) Re Where the indictment charged that A. B., and C. cons- pired together, and with divers other persons to the jurors unknown, etc, and the jury found that A. had cons- pired with either B. or C, but they could not say which, and there was no evidence against any other persons than the three defendants, A. w^as held entitled to an acquittal, (a) (a) R. V. Thompsm, 16 Q. B. 832; 20 L. J.(M. C.) 183 ; Arch. Cr. Pldg. 942. 410 CRIMINAL LAW OF 'CANADA. CHAPTER VII. . - ; ANNOTATIONS OF MISCELLANEOUS STATUTES. It is a sound rulo to construe a statute according to the common law rather than against it, except, when or so far as the Statute is plainly intended to alter the com- mon hiw. (a) Statutes are usually construed strictly in criminal cases, and no construction will be adopted, which the language of the Statute does not plainly authorize. (6) But they are taken strictly, and literally only, in the point of defining and setting down the crime and the punishment, and not generally in words that are but cir- cumstance and conveyance in putting the case, (c) It has been laid down that the Court will construe a penal Statute according to its spirit, and the principles of natural jusiice ; and cases may possibly arise in which, although a person, according to the letter of the Act, may be liable to the penalty ; yet the Court will direct the jury to acquit him, he not having offended against its spirit and intention, {d) By 31 Vic, c. 1, s. 6, thirty ninthly, every Act shall be deemed remedial, and shall be construed as such. In construing a remedial Statute, the substance of its provis- ions must be looked to, (e) and the Court will construe it liberally, (f) (a) Rerj. V. Morris. L. R. 1 C. C. R. 95, per Byles, J. (6) See Reg. v. (rBrim, 13 U. C. Q. B. 436 ; see also Reg. v. Brown, 4 U. C. Q. B. 149, per Robinson, C. J, ; Wilt v. Lai, 7 U. C. Q. B. 537, per Robinson, (c) Dwarris, 634. id) Attn. Genl. v. Markin(/tosh.2'U. C. Q. B. 0. S. 497. (e) Re.g. v. Froud, L. It. 1 C. C. R. 74, per Kelly, G. B. ._ - ,- if) M'Farlanev. Lindsay, Draper, 142; Dwarris. 614. MISCELLANEOUS STATUTES. 411 In construing the Consolidated Statutes of Canada, the ('Ourt may refer to the original enactments, in order to arrive at a right conclusion. («) No man can be de- prived of any right or privilege, under any statutory enactment, by mere inference, or by any reasons founded solely upon convenience or inconvenience. Statutes are to be construed in reference to the principles of the com- mon law, or of the law in existence at the time of their enactment. It is not to be presumed that the Legislature intended to make any hinovation upon the common or then existent law, further than the case absolutely re- quired ; and Judges must not put upon the provisions of a Statute a construction not supported by the words, {b) The Court will not put an interpretation upon an Act to give it a retrospective effect, so as to deprive a man of his right, (c) In general, the Court will not ascribe re- trospective force to new laws affecting rights, unless, by express words or necessary implication, it appears that such was the intention of the Legislature, (d) . • But the Court cannot refuse to give effect to an ex post facto Statute, which is clearly so in its terms, [e) A pri- soner is liable to be indicted, on the 29 & 30 Vic, c. 2 and 3, for unlawfully invading Quebec on a day antece- dent to the passing of the Statute. (/) In construing an Act of Parliament, as in construing a deed or a contract, we must read the words in their ordinary sense, and not depart from it, unless it is per- fectly clear, from the context, that a different sense ought to be put on them, (g-) A Statute must be taken as it is, (a) Whefan v. Rep. 28 U. C. Q. B. 108. (b) Re(j. V. Vonhdjf. 10 L. C. J. 293, per Drmimond, J. (c) Attij. Oenl. v. HaUiday, 26 U. C. Q. B. 414, per Draper, C. J- ; Evans v. Williams, 11 Jur. N. S. 250. (d) Phillips V. Eyre, L. R. 6 Q. B. 23, per Willes, J. (e) Reu. V Madden, 10 L. C. J. 342. u) lb. . ,.^ /v ;^ (g) Reg, v. Chandlei; 1 Hannay, 551, per Ritchie, C. J. * : / 412 CRIMINAL LAW OF CANADA. and when its object is to protect public interests, its clauses must be received in that light, {a) A statutory- enactment should be so construed as to make the remedy co-extensive "with the mischief it is intended to pre- vent. (6) "Where two Statutes are in pari materia, and by the enactments of the latter Statute expressly connected to- gether, they are to be taken as one Act. (c) And even when a Statute refers to another, whi(;h is repealed, the words of the latter Act must still be considered as if introduced into the former Statute, (d) In general, an aHirmative Statute does not alter the common law. (e) Where general words follow particular ones, the rule is to construe them as applicable to persons ej'mdem generis, (f) In accordance with this principle, the words "or other persons whatsoever," in the Con. Stats. U. C , c. 104, s. 1, cannot be taken to include all persons doing anything whatever on a Sunday, but must be taken to apply to persons following some particular calling of the same description as those mentioned, {g) There can be no estoppel against an Act of Parliament. If the transaction contravening the Act be in reality illegal, no writing or form of contract, or colour given, can prevent an inquiry into the actual facts. Qi) It would seem that the principle of estoppel does not apply as against the public interest. {%) (a) Reg. v. Fatton, 13 L. C. R. 316, per Mondelet, J. (6) Rcy. V. Allen, L. R. 1 C. 0. R. 375, per Cockburn, C. J. (c) Reg. V. Bereridge, 1 Kerr, 08, per Chipman, V. J. {d) Dwarris, .571. (e) Dwarris, 473-4, and see Levirujer v. Reg. L. R. 3 P. C. App. 282. (/) Sandiman v. Breach, 7 B. & C. 100. (g) Heapeler and Sluiw, Hi U. C. Q. B. 104, per Robinson, C. J. ; see also Reg. V. Hynes, 13 U. C. Q. B. 194 ; Re Q. B. 224 ; hcu (Unt.) ;i2 Vic, c 40; (Jon. Statu. Can., c. 80, h. .'J. (d) Reg. v. lirown, 4 U. C. Q. B, 147. MrS( KI-LANKOUS STATUTF'.S. ' 433 Whcro tolln, lixod })y the CommiKHioncrs, aro oxactod by ii l()ll-i,^al(! keeper, at a ^ate not h\x mih^s apart IVom i\w oic previously pas.sod, the to]l-;L^ato ko('])(*r, uiidor th(! 3 Vic.,c. 5'}, s. .■}4, is not liable to a Mirnrniiry convic- tion, for the [Slatuti^ was intended to y)revont the takin*^ of more; or less toll than th<; ComniissioiK^rs have ap- pointed, (a) The lollowinj^ conviction — "Home District, to wit: ]Je it rein(!mhered, that on the IfJth day of January, in the, year of our Lord 1849, at the City of Toronto, in the District aforesaid, Thomas Ilaystead is convicted b«?fore me, S. (I. l^ynn, one of H(;r Majesty's Justices of the l*eace for the said District, I'or that h(! ihc. said Thomas Ilaystead did, on the 14tli day of January, iiisiant, evade payment of toll, at the toll-frjite situate; oji th' » 'f -V i'-.'h-^n-^ f.i^-.K ., „> ,: 'm- MISCKLLANEOUS STATUTES. 437 taking a pawn or pledge is not an exercising ihe trade or carrying on the business ol' a pawn-broker. (//) The return of convictions by Justices of the Peace is now reguhited by the 32 cSc 3i Vic, c. 31, s. 72, the 3C Vic, c. 27, 8. 3, and (Ont.) 32 Vic, c G, s. 4. The Consolidated Statute of Upper Canada has been rei)ealed. (b) Under the former Statute a Justice of the Peace was liable for a separate penalty of £20, for each conviction of which a return was not properly made to the Sessions, (c) Justices were not jointly liable in one penalty, but each in a separate penalty for not returning convictions, {d) The object cf the Legislature, in passing the Statutes, was to compel the Justices to make a return of whatever fines they had imposed, in order that their diligence in collecting the fines might be quickened, and also in order that it might be known what money they should admit themselves to have received, so that they might be made to account for it. (e) The illegality of a conviction is no excuse for not re- turning it, but, if on that account the fine had not been levied, a return should be made explaining the circum- stances. (/) An order for the payment of money made by a Justice, under the Con. vStats; U. C, c 75, is not a conviction, which it is necessary to return, (g) A conviction made by an alderman, in a city, must be returned to the next ensuing General Sessions of the Peace for the county, and not to the Recorder's Court for such city, (h) {a) Beo- V. Andrews, 25 U. C. Q. B. 106. (6) See 32 & 33 Vic, c. 3G. . ; (r) Donodh, (j. t. v. Loiif/worth, 8 U. C. C. P. 437. ( . i The seller of (lour, in barrels not marked or branded, is not liable to the penalty affixed by the 4 «Sc 5 Vic, c. 89, s. 23, which applies only to the manufacturer or packer, and Magistrates have no summary jurisdiction, when the accumulated penalties are more than £10. When the inspector, in a corporate town, is the hifor- mer, he is not entitled to half the penalty, (h) The Statute only applies to Hour made in this Pro- vince, (c) The 8 Vic. c. 45, (d) was passed to prevent the profana- tion of the Lord's day. Defendant was convicted, under the 8 Vic, c. 45, " for that he, Jacob Hespeler, of the village of Preston, Esquire, did on Sunday, the 26th day of July last past, at the township of Waterloo, work at his ordinary calling inas- much as he, and his men, did make, and haul in hay, on the said day." He appealed to the Quarter Sessions, (a) Beg. v. Stewart, 25 U. C. Q. B. 327. ' / ' •' r ii"'!: ',' v .' ^ vn'i^ (f . ' (b) Met;, v. Beekman, 2 U. C. Q. B. 57. ■- S - ■ Ic) II). • .■.'..v,\-' Id) Con. Stats. U. C, c. 104. - '- .. i ,. ■,; ■,'/' ' ■•'• ■ ' , 1 MISCELLANEOUS STATUTES. 439 •where the question was triod boforo a jury, and the conviction affirmod. The proceedings havin<^ been re- moved by certiorari to this Court : — Held, that the Statute, 13 & 14 Vic, c. 54, extended to convictions under this Act, and authorized the trial by Jury ; though, in the 8 Vic, c 45, there is a provision for appeal to the Ses- sions, but not for such trial ; that the conviction must be quashed, as not statin*^ any offence within the Statute, for defendant was not alleged to be of, nor to have worked at, any particular calling-, nor did it state any fticts, from which this might be inferred. The Court also inclined to think the conviction was bad, for not negativ- ing the exception in the Statute, by stating that the work done was not one of necessity, (a) And it seems clear the conviction was bad, on the latter ground, for the excep- tion is contained in the clause creating the offence, (h) A person is liable, under the Act, for plying with his steamboat, on Sunday, between the city of Toronto and the peninsula — persons carried between those places, not being " travellers " within the meaning of the excep- tion in the first section, (c) A note made on Sunday, in payment of goods sold, on that day, is void as between the original parties, but not as against an indorsee for value, and without notice, {d) The giving or taking security, as an ordinary mortgage •of personal property, on a Sunday is not void as a " buy- ing or selling, " within the Act. (e) • - • - But all sales or agreements for a sale of real or per- sonal property made on a Sunday are void. (/) By 1 & 2 Wm., c, 32, s. 32. " If any person shall kill (a) Hespeler and Shaw, 16 U, C. Q. B. 104. ('>) See i)08t, pldg. ((•) Bei;. V. Tinninq, 11 U. 0. Q. B. G3G, {d) Houlkton V. Parsons, 9 U. C. Q. B. C81. (f) Wilt V. Lai, 7 U. 0. Q. B. 5:}"). (/) Lai V. Stall, 6 U. C. Q. B. 506. ,} UX .:j . t .vt';.^ 440 CRIMINAL LAW OF CANADA. or take any game or use any dog, gun, net, or other en- gine or instrument of destruction for the purpose of kill- ing or taking game on a Sunday," he shall, on conviction, be liable to a penalty. The appellant was convicted for that he, on the 15th of August, (being Sunday) did use snares for the purpose of killing game. He set the snares, on the 13th and 14th of August, and, on the 15ih, the snares were seen set ready to catch game, and two dead grouse were found caught in the snares : — Held, that a snare was an engine or instrument, within the meaning of the section, and that putting down a snare, on a day before Sunday, for the purpose of killing game, and keep- ing it set on Sunday, was using an engine or instrument on Sunday ; that setting an instrument on a week day, with the intention that it shall operate on Sunday, and killing or taking game on that day, is an offence, and it is not necessary that the party should be present using the instrument, (a) ' > A farmer, working on his own land on a Sunday, is not liable to conviction, under 29 Car. 2, c. 7, s. 1. The words " or other person whatsoever " are to be construed ejusdem generis, and a farmer is not ejusdem generis, with a tradesman, who is the only employer named, nor with a labourer, who is a person employed, (b) The 27 & 28 Vic, c. 17, amends the laws in force res- pecting the sale of intoxicating liquors, and contains provisions for the repression of abuses, resulting from such sale This Act, and the 28 Vic, c. 22, for the punishment of ^ persons selling liquor without licence, are intended to stand together, the latter applying where the former has no operation, (c) j (a) Allen and Thompson, L. R. 5 Q. B. 336. (6) Reg. v. Silvester, 33 L. J. [M. C] 79. (c) OralMtn v. M'Arthur, 25 U. C. Q. B. 478. MISCELLANEOUS STATUTES. 441 The object of the 27 & 28 Vic, c. 18, was to repress the sale of intoxicating liquors, altogether, and its provi- sions were intended, to facilitate the conviction, and en- sure the punishment, of offenders within it, as a means of repressing abuses resulting from the sale of intoxicating liquors, (a) It is limited to municipalities, where a tem- perance by-law is in force and suspends, the 28 Yic, c. 22, there during the continuance of such by-law, leaving it to apply elsewhere in Ontario. Therefore, where a Magistrate, sitting alone, convicted a party for selling liquor without a licence, in a township, where such a by-law was in operation, it was held that the conviction was void, as the 27 & 28, Vic, c 18, s. 14, s. 3 expressly provides that any prosecution for the penalty must be brought before two Justices of the county, where the offence was committed, (b) If the Collector of Inland Revenue prosecutes under this Act, two-thirds of the penalty belong to, and may be retained by, the collector, but he must pay one-third to the person, on whose information he instituted the prosecution, and the remaining one-third must be paid , by the collector to the Receiver-General. If a Municipal Corporation, or some person authorized by them, prosecutes, the whole penalty belongs to the corporation, and the council of the municipality may pay over not more than half to any other person, upon whose information the prosecution was instituted. If a person, not so authorized, prosecutes, the penalty belongs to the Corporation of the Municipality, whose by-law is thereby enforced, and the council may pay over to any other per- son, upon whose information the prosecution was insti- tuted, not more than half the penalty. In the two last (a) Re M'Call, 2 U. C. L- J. N. S. 17, per Draper, C. J. (6) Ch-aham v. M'Arthur, 25 U. C. Q. B. 478. 442 CRIMINAL LAW OF CANADA. cases, where the corporation is not prosecutor, the Statute does not give them costs, but only the penalty. The con- \'iction must adjudge, that the penalty enforced shall be paid to the party entitled, according to one of the fore- going provisions, to receive it. "Where, instead thereof, it was, according to the conviction, as stated in the warrant of commitment, adjudged that the penalty be paid to one J., who was not shewn to be the Collector of Inland Revenue, in which character alone ho would be entitled to it, the warrant of commitment was held bad, and the prisoner discharged from custody (a) The 14 & 15 Vic, c. 97, provided for the establishment of a Normal School, and the j>romotion of education in Lower Canada. Section 5 imposed a penalty on the Secre- tary-Treasurer of each Municipality, and . every teacher of a Common School therein, for neglect or refusal to exhibit to the Inspector all and every the documents in their charffe. :<:>l'-t! . Ji^^x^h? 'tiH': i.itv/; ;':/. ^.ui- i A conviction, by a Magistrate under this Act, awarding imprisonment for the penalty, and also for damages, and costs, was sustained. (6) ii'^u: D-AV't*; The 12 Vic, c. 55, amended the Act relating to masters and servants, in the country parts of Lower Canada. Under s. 3, a Justice of the Peace has no jurisdiction to punish servants for desertion, except in cases where there is a contract, (c) ^/ tflittAyfiiniii/fK«(Ur«v>i;irJfi'?Ws;i^^^^^ f^ On an appeal to the Quarter Sessions, from a Justice's conviction, apparently intended to be under 0. S U. C, c. 105, as amended by 25 Vic, c. 22, of having, at a time and place named, unlawfully entered the premises of de- fendant, being the west half of Lot No. 14, in the 1st Con- cession of the Township of Brooke, in the County of (a) He M'Ca((, 2 U, C. L. J. N. S. 17, per Draper, C. J.*' '" (6) Ex parte Moguin, Kob. Dig. 73. (c) Pob. Dig. 77. ■ V' MISCELLANEOUS STATUTES. 443 Lambton, with men and teams, and cut down and des- troyed certain trees thereon, and taken therefrom a cer- tain valuable walnut log, without stating the premises were wholly enclosed ; it appeared, in evidence, that the premises in question were, in fact, wholly enclosed, but the chairman directed the jury that the case, if any, was one arising under Con. Stat. Can., c. 93, s. 25, and that, in order to convict the defendant, they must be satisfied that the act was unlawful and malicious, and that the in- jury done amounted to 20 cents. The jury found the appellant guilty, adding the words " twenty cents." This verdict was recorded, without any mention of the further finding of the jury as to the amount. The chairman, notwithstanding, made an order quashing the conviction, considering that the jury had erred in their verdict, as there was no aveiment or evidence that the damage done amounted to 20 cents, and he refused to amend the con- unction, under 29 & 30 Vic, c. 50 : — Held, that the con- viction was one under Con. Stats. U. C, c. 105, as amended by 25 Yic, c. 22, and that it was not competent for the Court of Quarter Sessions to convert the charge into one, under Con. Stats. Can., c. 93, s. 25; but that the chair- man should have submitted the appeal to the jury, in ac- cordance with 29 &; 30 Vic, c 50, notwithstanding the omission of the words wholly enclosed^ and that, having submitted it to them, though with an erroneous charge, their verdict of guilty should not have been rescinded, but have been treated as a determination of the appeal, and the chairman should have amended the conviction in accordance with 29 &l 30 Vic, c 50, by the insertion of the omitted words, " wholly enclosed," and have af- firmed and enforced the same, (a) Where the defendant appeared, on the evidence re- (a; M'Kenna v. Powell, 20 C7, 0. C. P. 394. , -, 444 CRIMINAL LAW OF CANADA. turned, to have bona fide asserted a claim to the land which he had enclosed, it was held, not a proper case for the adjudication of the Mayorof Belleville, under 12 Vic, c. 81, s. 72 and 185, which gave the Mayor jurisdiction in certain cases, and that, consequently, the Mayor's sum- mary conviction of the defendant, under that Act, might be quashed by certiorari, {a) )•« \u:'\-rJ\>}^^ v.il.'v 'mus To constitute an offence, under the 3rd section of the 7 Geo. 4, c. 3, providing for the maintainance of good order in churches, the act complained of must have been committed " during divine service, (b) iAWw'A hull 'Mi:- An information, setting out that the defendant had conducted himself in a disorderly manner at a church door, by keeping his hat on his head during the proces- sion of the Holy Sacrament, discloses no legal offence, (c) r Where a Justice of the Peace convicted the plaintiff, under the Con, Stats. Can , c. 9?, s. 18, of making a dis- turbance in a place of worship, and committed him to gaol, without first issuing a warrant of distress to levy fine and costs under that section : — Held, that the Con. Stats. Can., c. 103, ss. 57 and 59, applied to this convic- . tion, and that the Justice, being satisfied the party had no goods, had authority and jurisdiction, under the latter Statute, to commit to gaol, without first issuing a warrant to levy fine and costs, {d) ?. iv^ nv.-|?*wt^' The 32 & 33 Vic, c. 28, provides that certain persons^ therein described, shall be deemed vagrants, and shall, upon conviction before any Stipendiary or Police Magis- trate, Mayor or "Warden, or any two Justices of the Peace, be deemed guilty of a misdemeanor. -i^i The prisoner was convicted under s. 1 of this Act, for (a) Reg. v. Taylor, 8 U. C. Q. B. 257. *"' **'' (b) Ex parte Dumouchd, 3 L. G.R. 493. - . (c; Ex parte Filiau. 4 L. C. R. 129. (d) Moffat V. Barnard, 24 U. C. Q, B. 498. - MISCELLANEOUS STATUTES. i^O that she was, in the night time of the 24th February, 1870, a common prostitute, wandering in the public streets of the City of Ottawa, and not giving a satisfactory ac- count of herself, contrary to the Statute : — Held, that the conviction should allege that the woman was asked, be- fore she was taken, or at the time of her being taken, to give an account of herself, and that she did not give a satisfactory account, and that, therefore, the arrest was made, (a) The Court were of opinion that the allegation, she giving no satisfactory account, did not shew that any prior demand or request had been made upon her for that purpose. Semble, the evidence should shew the place where the person is found, and that it is within the Statute, and also that the x>erson is a common pros- titute, and so subject to the provisions of the ^iait\iie.(b) The prisoner threatened A.'s father that he would ac- cuse A. of having committed an abominable offence upon a mare, for the purpose of putting off the mare, and forcing the father, under terror of the threatened charge, to buy and pay for her at the prisoner's price : — Held, that the prisoner was guilty of threatening to accuse, with in- tent to extort money, within the meaning of the 24 & 25 Vic, c. 96, s. 47, which is .similar to the 32 & 33 Vic, c. 21,s. 46. ('c; The Con. Stats. Can., c 67, s. 16, which declares it a misdemeanor, in any operator or employee of a telegraph company, to divulge the contents of a private despatch, only protects the rights of each individual sender or re- ceiver of a message against disclosures of facts, which come to the knowledge of the operators in the course of (a) Res^. V. Levebque, 30 JJ . C. Q. B. 509. ' ' (6) lb. T r^Mi rrVi .,. ■ i- . ...'.;.. (c) Beg. V. Redman, L. R. 1 C. C. R. 12 ; 35 L. J. (M. C.) 89. As to threats -within the 6 Geo. 4, c. 129, s. 3, of force to a master to limit the number of his apprentices, see Wood and Bowron, L. R. 2 Q. B. 21. / .88 {.tj M) .t A aa i ai»i .il .0 .0 I M .wf ^©iwwislft >v ,,ssa. i^r\ 446 CRIMINAL LAW OF CANADA. their employment. When the rights of others come in question, as when a suit is pending between the sender or receiver of a message and a third party, with whom he is alleged to have contracted, the operator or secretary of the company is bound to disclose the contents of the telegram, in obedience to a subpccna duces tecum, (a) ' The 1 & 2 Wm. 4, c. 32, ss. 3 and 23, forbids, under penalties, the killing or taking of certain game during certam intervals of the year, and s. 23 imposes penalties, on any person killing or taking game, or using a dog or engine for that purpose, not being authorised, fov want of a certificate. A person, using an engine for taking game without a certificate, during the forbidden interval, is liable to penalties, under the latter section, although he may also be liable to penalties under s. 3 ; as there is no reason why a man should not be liable to two penal- ties for the two offences, one against the law for the pre- servation of game; and one against the revenue, no matter at what season of the year, (b) »)r;f!fr 'ri/Mn: 'ii:; yr- >■ • « The 27 & 28 Vic, c. 47, s. 2, enacts that when any per- son shall, on indictment, be convicted of any crime pun- > ishable with penal.servitude, after havhig been previously- convicted of felony, the least sentence of penal servitude that can be awarded shall be a period of seven years, i . ■i A. was convicted of the misdemeanor of having done grievous bodily harm to B. The indictment did not charge a previous conviction of felony, but, after the jury had found A. guilty, it was proved, on oath, that A. had been previously convicted of felony, but no record or certificate of such conviction was produced. A. was sen- tenced to penal servitude for five years, as for a misde- meanor only, without any previous conviction of felony : — Held, that the sentence was correct, (c) . - ■ - -• . , -t- (a) Leslie v. Hervey, 15 L. C. J. 9. ".f- .'1 > -) .'T ■■- (h) Saunders v. Baldy, L. R. 1 Q. B. 87. (cj Reg. V. /Summer*, L. E. 1 C. C. R. 182 ; 38 L. J. (M. C.) 62. MISCELLANEOUS STATUTES. 447 The prisoner was convicted of a crime punishable with penal servitude, and it was proved that he had been previously convicted of felony; but the previous convic- tion was not stated in the indictment: — Held, therefore, that the above section did not apply, (a) r> ;., r; -f ■ .".w By the 11 & 12 Wm. 3, c. 12, and 42 Geo. 3, c. 85, if any Governor of a colony, or other person holding, or having held, public employment out of Great Britain, has been guilty of any crime or misdemeanor in the exercise of his office, every such crime may be prosecuted or en- quired of, and heard and determined in the Court of King's Bench in England, either upon information by the Attorney-General, or upon indictment found, and such crime may be laid to have been committed in Middlesex. An offence under the above Statute is an offence commit- ted on land beyond the seas, for which an indictment may legally be preferred in any place in England, within the 11 k 12 Wm. 3, and this section and the other enact- ments of the Statute, as to preliminary examinations, etc., before a Magistrate, in whose jurisdiction the accused might be, apply to charges under the above Statutes, and the Court of Queen's Bench is included in the term, "next Court of Oyer and Terminer." {b) Upon an indictment under the Con. Stats. U. C, c. 26, s. 20, for making an assignment to defraud creditors : — Held, that a money bond is personalty seizable on an ex- ecution, under the Statutes 13 & 14 Vic, c. 53, and 20 Vic, c. 57, and, further, that a transfer, made by a party to a creditor, who accepted the same in full satisfaction and discharge of his debt, did not render the party making uch assignment less liable under this indictment, (c) Under the 4 & 5 Vic, c. 27, s. 27, Magistrates could (o) Reg. V. Willis, L. R. 1 C. C. R. 363. (6) 7fe»7. V. JFi/rc, L. R. 3 Q. B. 487 ; see 32 & 33 Vic, c. 30, 8. 3. :. (c) Reg. v. Potter, 10 U- C C P. 39. 448 CRIMINAL LAW OF CANADA. not issue their warrant to imprison nhsolntely for so many days, but only to imprison for so many days unless the fine and costs be sooner paid, {a) i>"'v.!7u..-, ,, ,,,ui •t; Under the Statute for repressing riots at elections, no power was given to Magistrates to convict summarily, but the offenders must have been tried by a jury, (h) To subject a person to the penalty of the 22 Geo. 2, c. 45, for suing out process, the attorney allowing his name to be used must be first convicted, (c) - ■•■■ ■ ," -: An offence committed before, though tried after, the Revised Statutes came in force is not indictable under those Statutes, though the words creating the offence are not altered thereby, the Act creating it being embodied in the Revised Statutes in its original words. The in- dictment must be considered as founded on the Act creating the offence, (d) The punishment provided by the ordinance 4 Vic, c. 30, s. 1, is cumulative, and sentence of imprisonment and fine is to be awarded upon the conviction had against the defendant in manner and form, as enacted by the ordinance, (e) An overseer of the poor of a parish is liable, under the Acts of Assembly, 26 Geo. 3„ cs. 28 and 43, and 33 Geo. 3, c. 6, to an indictment for not accounting, to the first General Sessions of the Peace in the year, for moneys re- ceived by him for the support of the poor, during the preceding year. (/) (a) Ferguson -v. Adams, 5 XJ. Q: O.'B, 194. i i^>, ^ s t ■, (6) lb. ■' ■' '■'• '■' r\i>x\)rt-Vi (c) Rpx V. Bidwell, Taylor's, 487. , ,\,..y, t, ' (d) Reg. v. Pope, 3 Allen, 161 ; Reg. v. M'Laugh'in, ib. 159. • '>ft.>^»IJ> (e) Reg. v. Palliser, 4 L. C. J. '276. Trtrt'ivtJ-n d I ' CHArXER VIII. ••• . ' • " EVIDENCE. ■ ' ' '^ ';« ■ ' The rules of evidence are, in general, the same in civil and criminal proceedings, (a) There are, however, some exceptions. Thus, the doc- trine of estoppel has a much larger operation in the for- mer. So an accused person may, at least if undefended by counsel, rest his defence on his own unsupported statement of facts, and the jury may weigh the credit due to that statement. Again, confessions, or other self- dis-serving statements of prisoners, will be rejected, if made under the influence of undue promises of favour or threats of punishment. So, although both these branches of the law have each their peculiar presump- tions, still the technical rules, regulating the burden of proof, cannot be followed out in all their niceties when they press against accused persons. (6) There is a strong and marked diiFerence in the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probability due regard being had to the burden of proof, is sufficient basis of de- cision ; but in the latter, especially, when the oftiance charged amounts to treason or felony, a much higher de- gree of assurance is required, (c) • ^' '^ > The persuasion of guilt ought to amount to such a ■'■'■ ■' ■ ' , ^ f' i (a) Reg. v. Atkinson, 17 U. C. C. P. 304, per J. Wilson, J. (b) Best 0,1 Ev., 4 Edn. 122. (c) Clark v. Steven/ on, 24 U. C. Q. B. 209, per Draper, C. J. ; HoUingham v. Head, 4 C\ B. N- ^" 388 ; Reg. v. Jones, 28 U. C. Q, B. 421, per Ricluirds, C. J. ■■:,. OO' ., 450 CUIMINAI. LAW OF CANADA. moral certainty, as convinces the minds ot'the tribuiinl, as reasonable men, beyond all reasonable dou})t. (a) The onus ol' proving- every thiiig essential, to the esta- blishment of the charge against the accused, lies on the prosecutor This rule is derived from that maxim of law, that every person must be presumed innocent until proved guilty. It is, however, in general, sufficient to prove a prima facie case ; then, if circumstances calling for explanation are not explained, the case becomes stronger, lor, as has been remarked, imperfect proofs, from which the accused might clear himself, and doos not, become perfect. (5) The presumption of innocence only obtains before verdict ; after verdict of guilty, all presum- ptions will be against it. (c) The rule that the burden of proof lies on the party, who, substantially, asserts the affirmative, is applicable in criminal cases, (d) But in some cases, where negative proof is peculiarly within the knowledge of a party, he is bound to adduce it. The rule of law is plain, that, where any one is pro- ceeded against for doing an act, which he is not ptnnitted to do, unless he has some special licence or qualification in his favour, it is sufficient to charge this want of licence or qualilication against the party, and it is for the latter to prove it affirmatively (e) ; for it is not incumbent on the prosecutor, to give any negative evidence, (f) A doubt was suggested in Barrett's case, as to whether the prosecutor must not first give some general evidence, to cast the onus on the other side, {g) * '>}ii '..> lu ;,' : -..i • (aj Beg. v. Jones, 28 U. C. Q. B. 421, per Richards, C. J. "' "'''''' ' " (b) Rtg. V. Jones, 28 U. 0. Q. B. 425, per Richards, C. J. ; Reg. v. Atkinson, 17 U. C. C. P. .303, per J. Wilson, J. (c) Req. V. Hamilton, Ki U. C. C. P. 'Mil, per Richards, J. (d) He Barrett, 28 U. C. Q. B. 5G1, per A. Wilson, J. ; Rex v. Hazti, 2 C!. & P. 458. (e) Re Barrett, supra, 561, per A. Wilson, J. ; Ilex. v. Turner, 5 M. & S. 206. Cf) Ex parte Parks, 3 Allen, 237. tg) See Elkin v. Janson, 13 M. & W. 662, per Alderson, B. See, however Apoth. Co, V. Bentley, R. & M. 159. KVIDKNCE. 4')1 In criminal caRPs, whcthor the ovidence be circumstan- tial, or (lir«'ct and ])ositive, the jury must decide, not simjily that all the facts are consistent with the prisoner's guilt, but, that they are inconsistent with any other ra- tional conclusion than that the prisoner is the guilty persoii. (a) The prisoner cannot be convicted, if there is a reason- able doubt of his guilt, however strong the weight or de- cided the perponderance of evidence may be against him. {b) "Whether, the evidence is circumstantial, or direct and positive, its weight and credibiUty are to be decided by the jury. They must make all necessary inferences from the facts jn-oved, and it lies within their peculiar province to decide on the credibility of witnesses (c) In drawing- an inference or conclusion from tacts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded of explanation or contradiction. No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradic- tion ; but, where such proof has been given, and the na- ture of the case is such as to admit of explanation or contradiction, if the conclusion,to which the proof tends, be untrue, and the accused offers no explanation or con- tradiction, the conclusion, to which the proof tends, be- comes almost irresistible. ('-' '•'•': ' i' •' • In regard to deciding on the credibility of a witness, (aj lief/. V. Greenwood, 28 U. C. Q. B. 258, per Draper, C. J. ; Taylw's Ev.. 84 ; and see Rey. v. Jmies, 28 U. C. Q. B. 416. (6) Ite<). V. Atkinson, 17 U. C. C. P. 305, per J". Wilson, J, ; and see Reij. v. Chubbs, 14 U. C. V. P. 43 n. (cj Re(j. V. Jones, 28 U. C. C^. B. 416 ; Retj. v. Greenwood, 23 U. C. Q. B. 25.5 ; Rey. V. Ckubbs, 14 U. C. C. P. 32 ; Rai. v. Heddons, IG U. C. C. P. 389 ; Reu. v. M'llroy. 15 U. C. C. P. 110. (d) Rey. v. Atkinson, 17 U. C. C. P. 305, per J. Wilion, J. 452 CRIMINAL LAW OF CANADA. the jury should consider the nature of the story he tells, and his manner of telling it ; the probability of its being true; his demeanour and his readiness to answer some questions ; as well as his unwillingness to answers others, and his whole conduct indicating favour to one side or the other. On the other hand, the jury should consider, whether the witness exhibits a frank straight-forward manner of answering questions, without regard to conse- quences to either party ; a desire to state all the facts, and no hesitation to answer the various questions put to him. (a) ;: ,;i!„j. ./ -: Where a witness, examined on the trial, directly con- fessed the crime, it was held that the Judge was not boiaid to tell the jury that they must believe this witness, in the absence of testimony to shew her unworthy of cre- dit, but that he was right in leaving the credibility of her story to them; and, if from her manner he derived the impression that she was under the influence of some one in Court, it was not improper to call their attention to it in his charge. (6) A prisoner, being indicted for the murder of one H., the principal witness for the Crown stated that the crime was committed, on the 1st of December, 1859, on a bridge over the river Don, and that the prisoner and one S., threw H. over the parapet of the bridge into the river. S. had been previously tried and acquitted. The counsel for the prisoner proposed to prove by one D., that S. was at his (D.'s) place fifty miles off on that evening, but the learned Judge rejected the evidence, saying that S. might be called, and if the Crown attempted to contradict his evidence, he would allow the prisoner to call witnesses to corroborate it. D.'s evidence was rejected, on the Ca) Beg. v. Joues, 28 TJ. C. Q. B. 419, per liicharJs, C. J. (6) Beg. v. Jont^, »uprot4l6. EVIDENCE. 453 ground that S.'s presence was a fact collateral to the en- quiry, whether the prisoner was guilty of the murder, and if the evidence of third parties were receive^, to prove an alibi on the part of S., the Judge might be called upon to try many other collateral issues t*?. was called, and swore that he was not present at the time, and that he was not on the bridge with the prisoner, at any time, during that year. He was not contradicted by the prosecution, and they called no rebutting or impeaching testimony. The prisoner's counsel inferred from the remarks of the judge that D. would not be admitted, and he did not, therefore, call him. It was held that the pre- sence of S. was a fact material, and not collateral to the enquiry, and that D., therefore, should have been admit- ted, when tendered, on the broad principle that he was called to speak on a matter, directly connected with the very fact under investigation, and his evidence would affect the credibility of the evidence for the prosecu- tion, (a) Where two prisoners are jointly indicted, one of them may, in certain cases, be acquitted, and called as a witness for the other. The general rule on this point is : where the prosecutor, in order to exclude the evidence of a ma- terial witness for the defendant, prefers his indictment against two jointly, and no evidence whatever is given against the person, thus unjustly made a defendant, the Judge, in his discretion, may direct the jury to acquit either during the progress, or at the termination of the enquiry, so as to give an opportunity to the other defen- dant to avail himself of his testimony, {b) The gro nd of this rule is to prevent the prosecutor (a) Ren. V. Brown, 21 U. C. Q. B. .'WO. (b) Re. ; Reff. v. Hambly, supra, 025. (f) Raj. V. Kenuedy, supra. EVIDENCE. 455 Where, at the dose of the case for the Crown, very shght evidence appears against one of two prisoners jointly indicted, the other cannot of right claim that the case of the former be submitted separately to the jwry ; but this is discretionary with the Judge. The question whether the Judge h:., properly exercised his discretion, or not, cannot be reserved a ^ a point for the consideration of the Court, (a) Whenever a co-defendant is ordered to be acquitted, in anticipation of the general verdict, his credit is left to the jury, how strong soever the bias on his mind may be. (6) If the Judge refused to direct an acquittal, for the pur- pose of evidence of the co-dofendant against whom there appeared neither legal prooJ, nor moral implication, a verdict against the other prisoner w ould be set aside, (c) Wliere two prisoners are jointly indicted for felony, and plead not g'uilty, but one only is given in charge to the jury, the other is a;n admissible witness against the one on trial, although the plea of not guilty remains on the record undisposed of; the witness not having been acquitted or convicted, and no nolle prosequi having been entered, (rf) ' .-- ::,i.^. ..^^r .r-v ■,: It is conceived that this decision will hold in Ontario at least, as the e^ddence Act here. Con. Stats. U. C. c. 32, s. 18, only protects a party in criminal proceedings, from giving evidence for or against himself. It is also unaf- fected, by the (Ont.) 33 Vic, c. 13. Notwithstanding 32 & 33 Vic, c. 29, ss. 62 & 63, a prisoner jointly indicted with another cannot, after they have been given in charge to the jury, be called as a («) Reg. V. Hamblv, 16 U. C. Q. B, 617. (6) Reij. V. Kennedy, 2 Thomson, 219-20, per Wilking, J. (f) Jb. 220, per Witkins, J. (d) Winsar v. Reg., L. R. 1 Q. B. 390 (ex chr.) ; 35 L. J. (M. C.) 161. — - 456 CRIMINAL LAW OF CANADA. witness for the other, without having been either acquitted or convicted or a nolle prosequi entered, (a) Parties separately indicted for perjury alleged to have been committed at one, and the same hearing, can be witnesses for each other, {b) Wiiere four prisoners were indicted together for rob- bery, and one severed, in his challenges, from the other three, who were tried first : — Held, that the former, al- though not actually upon his trial, after pleading not guilty, and before trial or judgment, was a competent witness on their behalf, (c) He would also be competent for the Crown, [d) It would seem that, in any case, one prisoner, whether he pleads guilty or not guilty, may, if he severs in his challenges from the other prisoners, and the Crown elects to proceed against the others first, so that he is not on trial with them, be called for the prosecution ; and this on the ordinary principles of the common law. (e) In such cases, however, it might be advisable, in order to ensure the greatest possible amount of truthfubiess in the person coming to give evidence, to take a verdict of not guilty, as to him, or to have his plea of not guilty withdrawn, and a plea of guilty taken and sentence passed, so that the witness may give his evidence with a mind free from all the corrupt inffuences which the fear of impending punishment, and the desire to obtain im- munity to himself at the expense of the prisoner, might otherwise produce. (/) This course cannot, however, be (a) Re,j. V. Payne, L. R. 1 C. C. R. 349. (b) Rtrove such conviction. By s. 00, if a witness, upon cross-examination as to a Ibrmer statem(^nt made by him, relative to the subject matter of the cause, and inconsistent with his present testimony, does not distinctly admit that he did make such statement, proof may be given that he did, in fact, make it. In order to impeach the character of a witness for veracity, persons may be called to prove that his general reputation is such that they would not believe him on his oath. (6) In cross-examining the witness for this purpose, counsel is not obliged to explain the object of his questions, because that might often defeat his ob- ject, (c) -i'^.i^^o • '•' "'U-:; -i '•i!^ v^' ■■' .-,: :.^ . Where a witness called for the Crown gave evidence quite different from a previous written statement made by him to the prosecutor's counsel, but admitted such statement when shewn to him on the trial, and said that i was all untrue, and made to relieve himself from com- plicity in the offence, or in consequence of promises made to him, and threats held out against him ; it was held, per A. Wilson, J., that the prosecutor's counsel being called, and examined by the Judge pre- siding at the trial, was properly admitted to disprove the (a) Req. v. Holmes, L. K. 1 C. C. R. 334 ; Rex v. Hodgtm, E, & R. 211 ; R&i. V. Cockroft, 11 Cox, 410. (!>) Reg. v. Browt>, L. R. 1 C. C. R. 70; 36 L. J. (M. C.) 59. (.) Reg. V. Brown, 21 U. C. Q. B. 334, per Robinson, C. J. KVIDENCK. 4G5 witneHK'a assortioii iihovo-mpiitioned, as to tho maniior in which, or tho r««aHou tor vvhi<;h, this statemont came to })e mado ; for th«» fact of its being obtained aw he stated, or of his being so dealt or tampered with, would tend very much to prejudice the prosecution, and was, there- fore, not a collateral matter, but relevant. But, per Haf^artij, J., it was unnecessary aiul improper to call the prosecutor's counsel for this purpose, as the witness had already admitted his previous inconsistent statement, and his testimony on the trial would be sutticiently shaken by this admission, (a) The prosecutor's counsel could not have been called to contradict the witness as to the facts sworn to on the trial, for a party was not allowed to discredit his own witness. But the facts relating to the issue might be proved by other witnesses, who were able to speak to them of their own knowledge, and so, incidentally, the witness might be contradicted, (b) By the 32 & 33 Vic, c. 29, s. 08, in case a witness, in the opinion of the Court, proves adverse, the party pro- ducing him may contradict him by other evidence, or, by leave of the Court, may prove that the witness made, at other times, a statement inconsistent with his present testimony ; but, before such last-mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the wdtness, and he must be asked whether or not he did make such statement. A witness should be interrogated as to facts onlj , and not as to matter of law. {c) A skilled witness cannot, in strictness, be asked his opinion respecting the very point which the jury are to (a) Reg. v. Jerrett, 22 U. 'J. Q. B. 499. ^' ' .' (h) II. • \ (c) Bey. V. Massey, 13 U. C. C. P. 484. • ">; ■ DD , , , , • ' 466 CRIMINAL LAW OF CANADA. determine ; but he may be asked a hypothetical question, which, in effect, will decide the same thing, (a) Where, on a trial for murder, the Crown having made out a prima facie case, by circumstantial evidence, the prisoner's daughter, a girl of fourteen, was called on his behalf, and swore that she herself killed the deceased, by two blows with a stick, about two feet long, and one and a-half inches thujk. In answer to this, a medical man, previously examined on the part of the Crown, was recalled, and asked whether the blows so inflicted by the prisoner's daughter would produce the fractures that were found on the head of the deceased. This question having been allowed, the answer was, " A stick such as sh«^ describes, one inch or an inch and a-half in thick- ness, and two feet long, could not, in my opinion, pro- duce such extensive fractures hy two blows : there must have been a greater number of blows to produce such fractures. There were bruises on both arms, head, and legs, and two blows could not have done all that. De- ceased must have had a succession of blows from a larger instrument than the girl describes." It was objected that this was skilled evidence, and matter of opinion, when skilled evidence and matter of opinion were not admis- sible : — Held that the rule excluding a skilled witness from giving evidence on the point which the jury are to determine was not infringed, and that the medical testi. mony was material to enable the jury to determine the true cause of death, (h) Held, also, that this was not an informal or illegal way of impeaching the veracity of the prisoner's daughter, nor was the evidence collateral to the fact of killing, but was important, as testing the credibility of the witness, (c) (a) Reg. v. Jones, 28 U. C. Q. B. 422, per Richards, C. J. (bj Reg. v. Jones, supra, 41G. (cj lb. EVIDENCE. 467 It is a general and well-established principle that the confession of a prisoner, in order to be admissible, must be free and voluntary. Any inducement to confess held out to the prisoner by a person in authority, or any un- due compulsion upon him, will be sufficient to exclude *he confession. The rule is carried so far that, if an oath is administered to the prisoner, while being examined under the 32 & 33 Yic, c. 30, s. 31, the oath will be a sufficient constraint or compulsion to render his state- ment inadmissible, {a) The reasons for this are, the statements made on his examination are regarded as confessions which must be voluntary, and a statement under oath is not so regarded; secondly, a prisoner shall not be compelled to criminate himself, and to this it may be added, that it is harsh and inquisitorial, and for that reason should be rejected, {b) This rule, however, only applies to the time during which the prisoner is under examination, as a prisoner on a charge against himself. His deposition, on oath, as a vniness against another person, when voluntarily made, with the privilege of refusing to answer criminatory questions, is admissible against himself, if isubsequently charged with a crime, (c) The prisoner, after his committal for trial, and while in the custody of a constable, made a statement, upon which the latter took him before a Magistrate, when he laid an information, on oath, charging another person with having suggested the crime, and asked him to join in it, which he accordingly did. Upon the arrest of the accused, the prisoner made a fall deposition against him, at the same time admitting his own guilt. Both infor- mation and deposition appeared to have been voluntarily >f (a) Reg. v. FieM, 16 U. C. C. P. 98. (h) Beg. v. Field, supra, 101, per Richards, C. J. , . ^ (O lb. 468 CRIMINAL LAW OF CANADA. made, uninfluenced by either hope or threat; but it also appeared that the prisoner had not been cautioned that his statement as to the other might be given in evidence against himself, though he had been duly cautioned when under examination in his own case. On a case reserved as to the admissibility of the infor- mation and deposition, it was contended that they must be considered in the nature of a confession, and that, as it did not appear affirmatively that no inducements were held out by the constable, the information and deposition ought to have been excluded. , .-ti. ;,• : . . ., < .- / But the Court (adhering to Reg. v. Finkle, infra), held that both the information and deposition were properly received in e vidence, as being statements which appeared to have been voluntarily made, uninfluenced by any promises, held out as an inducement to the prisoner to make them, and that, too, though they had been made under orth ; for that the rule of law, excluding the sworn statements of a prisoner under examination, applied only to his examination on a charge against himself, and not when the charge was against another, after his own ex- jimination was concluded ; for that, in the latter case, a prisoner was not obhged to say anything against himself, but, if he did volunteer such statement, it vrould be ad- missible in evidence against him. (a) The prisoner was convicted of arson. His admission or confession was received in evidence, on the testimony of the constable, who said that, after the prisoner had been in a second time before the Coroner, he stated there was something more he could tell, whereupon the con- stable cautioned him not to say what was untrue. He then confessed the charge. The constable did not recol- lect any inducement being held out to him. There was (o) Reg. V. Field, 16 U. C. C. P. 98. EVIDENCE. 469 also evidence that, on the third day of his incarceration, he expressed a wish to the Coroner to confess, on which the latter gave him the ordinary caution, that anything he said ir.ight be used against hira, and not to say any- thing unless he w^ished. He then made a second state- ment, and, after an absence of a few^ minutes, returned, and made a full confession : — Held, that, on these facts appearing, tho statement made to the constable was prima facie receivable, and that the Judge was well war- ranted in receiving as voluntary the confession made to the Coroner, after due warning by him. To make this good evidence to go to the jury, it would seem, however, that the more reasonable rule is, that, notwithstanding the caution of the Magistrate, it is neces- sary, in the case of a second confession, not merely to caution the prisoner not to say anything to ini' re him- self, but to inform him that the first statement cannot be used against him ; and if, in such case, the prisoner, after he has been cautioned, and his mind impressed with the idea that his prior statement cannot be used against him, still thinks fit to confess, th6 latter declaration is admis- sible. If the confession is made after warning, when the person to whom it is made is not aware of any promises of favour by another person, the confession may be received ; for the accused might imagine that, having once confessed, it would be of no use to deny what he had once said, and no distance of time will cure the de- fect of want of previous caution. But in this c se, it afterwards appeared that the prose- cutor had offered direct inducements to the prisoner to confess — promising to get up a petition in his favour, etc. — and the Court held, that, if the Judge was satisfied that the promise of favour thus held out had induced the 470 CRIMINAL LAW OF CANADA. confession, and continued to act in the prisoner's mind, notwithstanding the warning of the Coroner, he was right in directing the jury to reject them. If, in the course of the examination of the witnesses for the prose- cution, the Judge had suspected the confession had been obtained by undue influence, that suspicion ought to have been removed before the evidence was received, (a) Examinations taken before a Commissioner in Bank- ruptcy are admissible in evidence against the prisoner examined on a criminal charge. (6) The prisoner's house had been visited by a constable, who came to enquire about the purpose for which the prisoner's forge was used. The prisoner volunteered a statement, implicating himself and several others in a Fenian conspiracy. The constable asked the prisoner, " Had he any objection to tell that to the Superinten- dent ? " The prisoner said, "No," and went to the Super- intendent, and thence to a Magistrate, where he made a detailed information, upon oath, to the same effect. No inducement whatever was offered to the prisoner to make the information, but he was not cautioned by the Magistrate. Some days afterwards, he was asked by the constable to come down and hear his information read, in the presence of the persons whom he had informed against, now in custody. He went down, and made a further information, and, on that occasion, made this statement, " I came to save myself." No caution was given on this occasion. The prisoner was bound over to prosecute, and the Magistrate considered him as an approver. No charge was preferred against the prisoner up to this point, nor was he in custody. Subsequently, he (a) Reg. v. Finkle, 15 U. C. C. P. 453. (6) Reg. v. Robimon, L. E. 1 C. C. K. 80. EVIDENCE. 471 refused to prosecute, and was then arrested, tried, and convicted, his own information being put in e\idence against him : — Held, (a) that the informations were not properly received, and that, therefore, the conviction was bad : — Held, by Fitzgerald and Dmay, B. B. that the first information was admissible, no intimation having been made by the prisoner of the expectation under which he made the admission, but that the second information vras inadmissible, (h) This case does not affect the position that the volun- tary deposition of a witness, on oath, is admissible against him when subsequently charged with a crime. OHagan, J., expressly declares that the fact of its being made on oath would not render the deposition inadmissible, if made voluntarily and spontaneously. Fitzgerald and Deasy, B. B. held that the first deposition, on oath, was admissible, for no inducement was then held out, the witness not being considered an approver. In fact, the L,round on which the depositions were rejected, by the majority of the Court, w^as, that the confession w^as made with the view and under the hope of being thereby per- mitted to turn King's evidence, (c) A voluntary statement, made by a prisoner, in the presence of a Magistrate, upon an application for a re- mand, is admissible in evidence, although the statement was not taken down in writing, and no caution was given by the Magistrate to the effect prescribed by the {d) corresponding English section of the 32 & 33 Vic. c. 30, s. 31. (e) ^* Confessions to a constable, by an accused in his cus- tody, were not admitted where the accused might be (a) Monahan, C. J., andKeor/h, J., dissentientibus. {b) Reg. v. Gillis, 14 W. R. 845. {c) See HaIVs caw, 2 Leach, C. C. 559 ; .3 Russ. Or. 373. ' (rf) 11 & 12 Vic. c. 42, 8. 18. (e) Bet). V. Strip, 2 U. 0. I>. J. 137 ; Dears. 048 ; 25 L. J. (M. C.) 109. 472 CIIIMINAL LAW OB^ CANADA. under the influence of hopes held out ; but admissions made the same day, to a physician, in the absence of the constable, were admitted, (a) Statements made by a prisoner to parties who arrested him, he having been previously told on what charge they arrested him, are evidence. (6) The prisoner was called up by his master, and told, *' You are in the presence of two police officers, and I should advise you, that, to any question that may be put to you, you will answer truthfully, so that, if you have committed a fault, you may not add to it, by stating what is untrue." The master afterwards added, " Take care ; we know more than you think " : — Held, that the words imported only advice on moral grounds, and that the statement was admissible against the prisoner on his trial for larceny, (c) v : .r . , The case would have been different if it had appeared that the words used were, " It is better lor you to tell the truth." (d) - - • - ^. The prisoners, two children — one aged eight, and the other a little older — were tried for attempting to obstruct a railway train. It was proved that the mothers of the prisoners, and a policeman, being present, after they had been apprehended on suspicion, the mother of one of the prisoners said, " You had better, as good boys, tell the truth." Whereupon both the prisoners confessed : — Heidi that this confession was admissible in evidence against the prisoners, (e) Upon an indictment of two brothers — J. for stealing, and Gr. for receiving — it was proved that J. and a third , brother, W., were in the service of the same master; that (a) Reg. v. Berube, 3 L. I?. R. 212. (6) Be!/. V. Tufford, 8 U. 0. C. P. 81. (c) Reg. V. Jari'is L. R. 1 C. C. R. 96. id) See Reg. v. Baldry, 2 Den. C. C. 430. (e) Reg. v. Reeve, L. R. 1 C. C. R. 362. EVIDENCE. ■!'">■■ 473 J., Gr., and W., were at G- 's house when a policeman found the stolen goods there, and sent for J. and G-.'s master, and the five having gone together into Gr.'s par- lour, charged W. and J. with stealing, and Gr. with receiving ; that, upon this, W. said, " Well, .T., you had better tell Mr. W. (their master) the truth." Neither the master nor the policeman dissented, nor made any re- mark, whereupon J. confessed. On his way to the sta- tion, J., of his own accord, made a further confession. Upon being taken before the Magistrates, they discharged W., but committed J. and Gr. for trial : — Held J. and Gr., having been convicted on the evidence above, that the conviction was right, (a) A confession is admissible in evidence made to one in authority, although the prisoner was immediately, before such confession, in the custody of another person not produced, and although it is not shewn that such person did not hold out a threat or inducement. The rule is that for the purpose of introducing a confession in evi- dence, it is unnecessary, in general, to do more than ne- gative any promise or inducement held out by the person, to whom the confession was made. If, however, there be any probable ground to suspect collusion, in obtaining the confession such suspicion, it is said, ought in the first instance to be removed, (b) It may be generally laid down that, though an induce- ment has been held out by an officer or prosecutor or the like, and, though a confession has been made in conse- quences of such inducement, still if the prisoner be sub- sequently warned by a person in equal, or superior au- thority that what he may say, will be evidence against himself, or that a confession will be of no benefit to him, ' (a) Reg. v. Parker, 8 U. C. L. J. 139 ; L. & C. 42 ; 30 L. J. (M. C.) 144. (6) Rcff. V. Finkle, 15 U. C. C. P. 455, per Richards, C. J.; PhiUips, Ev. 430 ; and see A v. Clewes, 4 C. & P. 221. 474 CUIMINAL LAW OF CANADA. or if he be simply cautioned by the Magistrate, not to say anything" against himsell", any admission ol" guilt, after- wards made, will be received as a voluntary confession. More doubt may be entertained as to the law, if the promise has proceeded from a person of superior autho- rity, as a Magistrate, and the confession is afterwards made to the inferior officer ; because a caution from the latter person might be insufficient to efface the expecta- tion of mercy, which had had been previously rallied in the prisoner's mind, (a^ • It is for the Judge to decide whether the prisoner has been induced to confess, by undue hifiuence or not. (6) The confession of a third person is not sufficient to im- plicate a party, on a charge of stealing, (c) ■ The jury are not bound to believe the whole statements of a prisoner, in making a confession. The exculpatory, as well as the implicative, portions therof, should be left to the jury, and they must exercise their own judgment as to whether they believe the whole, or only a part, [d) The correct course to be taken by the Judge, when evidence has been received, which it is afterwards shewn not to be properly receivable-, is to treat it as if it had been inadmissible in the first instance, and the effectual way of doing this is to tell the jury not to consider the inadmissible evidence, and to dispose of the case on the other evidence ; a similar principle is acted on, when the names of other prisoners are mentioned in confession, and the proper course seems to be to read the names in full, the Judge directing the jury, not to pay any atten- tion to them, (e) (a) Beg- v. Finkle, 15 U. C. C. P. 457, per Richardi, C. J. \h) lb. 453 ; R. v. Garner, 1 Den. C. C. 329. OM, a (c) Blair v. Hopkins, 1 Kerr, 540. (d) Reg. v. Jones, 28 U. C. Q. B. 416. (e) Reg. v. Finkle, 15 U. C. C. P. 459, per Richards, C. J. ; Rex v. Jones, 4 C. & P. 217 ; Rex v. Mandesley, 2 Lew. C. C. 73. . EVIDENCE. 475 The inclination of tJie Courts is not to extend the rule ibr excluding- confessions, (a) Where a prisoner is willing to make a statement; it is the Magistrate's duty to receive it ; but he ought, belbre doing so, entirely to get rid of any impression that may have been on the prisoner's mind that the statement may be used for his own benefit, and he ought also to be told that what he thinks fit to say will be taken down, and may be used against him on his trial, (b) The mode of doing this is now prescribed in terms, by the 32 & 33 Vic, c. 30, S. s. 31 and 32. The caution or explanation contained in s. 32 is not necessary, unless it appears that some inducement or threat has previously been held out to the accused, fc^ '.v; :>•, .r . ; ; f, ,.. /; The 66th section of the Statute declares that the sev- eral forms given in the schedule, or forms to the like effect, shall be good, valid and sufficient in law. The form N., of the statement of the accused before the Ma- gistrate, contains the cautions specified in s. 31, and not that in s. 32. Therefore, a statement returned, pur- porting to be signed by the Magistrate, and bearing, on the face of it, the caution provided for by s. 31, is admis- sible by virtue of s. 34, without further proof, {d) The object of taking depositions, under the 32 & 33 Vic, c 30, is not to afford information to the prisoner, but to preserve the evidence, if any of the witnesses is unable to attend the trial or dies. This being the ground on which they are taken, until recently the prisoner had no right to see them, (e) Now he is entitled to inspect the depositions, that he may know why he is committed. (/") CaJ Reg. v. Finkle, 15 U. C. C. P. 459. (6) See R. v. Arnold, 8 C. & P. 621 ; Arch. Cr. Pldij. 226. (c) Reg. V. Sansome, 1 Den. 545 ; 19 L. J. (M. C.) 143. (rf) lb.; See Reg. v. Bond, 1 Den. 517; 19 L. J. (M. C) 138 ; Arch. Cr. Pldg. 228 (c) Reg. V. Hamilton, 16 U. C. C. P. 364, per Richards, C. J. ( /■) /t.j 32 & 33 Vic. c. 29, 8 46. 476 ckiminal law of canada. It is not incumbent on the prosecution to abstain from givinjT any additional ondeUce, discovered subsequently to the taking of depositions ; but it is only faii- that the prisoner's counsel should be apprised of the character of such evidence, (a) It would seem that depositions taken before a Coroner can only be proved by the Coroner himself, or by pro- ving his signature thereto, and showing by hi.s clerk, or by some person who was present at the enquiry, that the forms of law have been duly complied with, (b) It was not however necessary to prove depositions by the Magistrate, or his clerk, when taken before Justices of the Peace ; though, it was intimated that, in important cases, it would be better if they were present at the trial, (c) Now, an examination taken, under the 31 & 32 Vic, c. 30, may be given in evidence without further proof, un- less it be proved that the Justice purporting to have signed the same, did not in fact sign the same, (d) The signa- ture of the prisoner is not absolutely necessary. The f Tect of the {Statute, so far as regards the evidence of a confession, seems to be that a written examination, taken as the Statute directs, is evidence per se, and the only ad- * missible evidence of the deponents having made a dec- laration of the things therein contained, (e) The Statute authorizes the reading of the depositions before the Grand Jury, for the purpose of finding a bill, as well as before the petty jury at the trial. (/) . In order, •' however, that the deposition may be admissible before the Grand Jury, the presiding Judge must, by evidence taken (a) Reg. v. Hamilton, 16 U. C. C. P. 365, per Richards, C. J. (b) Reg. v. Hamilton, supra, 340; Taylor, Ev. 473; Reg. v. Wilshaw, C. & Mar. 146. (c) Reg. • . Hamilton, supra, 353, per Richards, C. J. (d) S. 3 ,. (e) Arch. Cr. Pldg. 233. (/) Reg. V. Clements, 2 Den. 251 ; 20 L. J. (M. C.) 193. KVIDKNCE. . , ,„ 477 ill the presence of the acccused, satisfy himselt' ol" the existence of the facts recjuired by the statute to make such deposition admissible in evidence, (k) Under the 32 & 33 Vic , c. 30, s. 29, it is not necessary that each deposition should be signed by the Justice taking it. Therefore, where a number of depositions, taken at the same hearing on se\ eral sheets of paper, were fastened together, and signed by the Justices taking them once only at the end of all the depositions, in the form given in the schedule (M) : — Held, that one of the deposi- tions was admissible in evidence, under s. 30 of this Act, after the death of the witness making it, although no part of it was on the sheet signed by the Justice, (b) A deposition, properly taken, under 32 & 33 Vic, c. 30, s. 30, before a Magistrate, on a charge of feloniously wounding, is admissable in evidence against the prisoner on his trial for murder, the deponent having subsequently died of the wound. To render a deposition so taken admissible at the trial of ji prisoner, it is not a condition that the charge, on which he is indicted, must be iden- tically the same as that made against him before the magistrate, but the question is whether the charge was such that the prisoner had full opportunity, before the Magistrate for cross-examination, as to the circumstances appearing at the trial, (c) , "Where a conviction for selling liquor without license has been appealed to the General Sessions, the deposi- tions of witnesses, upon whose evidence in the Police Court the appellant was convicted, are not admissible on the trial of such appeal, though the witnesses are then absent from the Province, (d) (a) Beg. v. Beaver, 10 Cox, 274, per Byks, J.; Arch. Cr. Pldg. 250. (b) Beg. V. Parker, L. R. 1 C. C. 11. 225; 39 L. J. (M. C.) 60. ; Beg. v. Bicharda, 4 F. & F. 860, overniled. (c) Beg. V. Beeston, I V. C. L. J. 17 ; Dears. 405 ; 24 L. J. (M. C.) 5. (d) Re Brown, 8 C. L. J. N. S. 81. 478 CRIMINAL LAW OF CANADA. Formerly depoHitions wore receivable only where the indietm(»nt was substantially lor the same ojfence as that with which the dolendant was charged beibre the Jus- tice, (a) Now, by the 32 Ik 33 Vic, c. 29, s. 58, deposi- tions, taken in the preliminary or other investij^ation of any charge against any person, may l)e read as evidence in the prosecution of such person for any other offence whatsoever. Upon the trial of the prisoner for obtaining' money by false pretences, it was proved, by a female servant and the brother of the prosecutrix, that she was daily expect- ing her confinement, and the latter stated that she was *' poorly otherwise," and was, therefore, too ill to travel : — Uekl, upon this evidence, the Statute 32 & 33 Vic, c 30, s. 30, authorized the presiding Judge to receive the depositions of the prosecutrix, taken before the commit- ting Magistrate ; that there may be incidents with regard to parturition to bring the case within the Statute ; that it is in the discretion of the presiding Judge to determine whether the evidence of illness is sufficient ; that it is not necessary, in such case, to produce medical evidence, (b) The statement of a deceased witness, taken on oath by a Magistrate, detailing the circumstances under which a felony was committed, is admissible in evidence on the trial, under the (N. B.) 1 llev. Stat., c 156, s. 7, though it is headed " the complaint of," etc., instead of " the exam- ination " of the deceased, and does not state, on its face, to have been taken in the presence of the accused, it be- ing proved that it was taken in his presence, (c) Upon an indictment for obtaining money, from H., by false pretences, it appeared that the defendant was em- la) See Reg. v. Betaton, 1 U. C. L. J. 17 ; Dears. 405 ; Rey. v. Ledhetter, 3 C. & K. 108. (bj Rey. V. Sterenson, 9 U. C. L. J. 139 ; L. & C. 165; .31 L. J. (M. C.) 147. See, however, Reg. v. Welton, 9 Cox, U9(i. (c) Reg. V. Millar, Sup. Ct. N. B., H. T., 1861. RVIDKNCK. 4-7!) ployed to take orderH I'or j^oods, hut had uo authority to receive the price, and that, eleven dayw after he was ho employed, he ()})tained the money from H. by represent- ing that he was authorized l)y his employer to receive it j'or {^'oods delivered, in pursuance oi' an order which the deli'ndant had taken. Evid(?nce of an o})tainin.u^^}^.< ;.;. .;-:ni.wi >' ' .■'^•/v'- x'.'-i\^^: A declaration by a subscribing witness (who was dead) to a deed, that he left the country because he had forged a name thereto, is not admissible, on the ground that it is hearsay evidence, (c?) ?. i^ i/'H.:, •;; ^•■-i^t:-.<: -ij/^- .. But the description, given by a person of his suf- ferings, whilst labouring under disease and pain, is not hearsay evidence, and will be admitted, (e) ■■ !'•"( ■ ;' When the prisoner was indicted, under the Con. Stats. Can , c. 93, s. 4, for setting fire to his own house, it was held that his verbal admissions that the house was in- sured were sufficient to prove that fact, though the policy was not produced, nor its non-production accounted for. (y) '■'•»'';■, !S.-u, >j' ,;j;w(. The adnjissions proved were that the prisoner request- ed or procured one S. to set fire to the house, stating that he had his house insured, and asked him if he would not set fire to it. He also stated that " his insurance (a) Reg. v. Brown, 21 U. C. Q. B. 3:}5, per Robinson, C. J. (6) Red. V. Foster, 1 U. C. L. J. 156. (c) Reg. V. Roebuck, 2 U C. L. J. 138 ; Dears. & B. 24 ; 25 L. J. (M. C.) 101. (d) Rose V. Cui/lei', 27 U. C. Q. B. 270. (e) Reg. v. Berube, 3 L. C. R. 212. (/) Reg. V. Bryana, 12 U. C. C. P. 161. •' ■'' EVIDENCE. " 481 would rim out next day, and that he, S., must set lire to the house that night." The prisoner afterwards told S, '• that he must set fire to the building before noon, for that his insurance would then expire." The evidence also shewed that a sum had been awarded to the prisoner for his insurance, in payment of which he was seen to have a bill of exchange on London in his possession, (a) The prisoner, a solicitor, was indicted for perjury, in having sworn that there was no draft of a certain statu- tory declaration made by a client. No notice to produce the draft had been given to the prisoner, and upon his trial it M'^as proved to have been last seen in his posses- sion. Secondary evidence having been given of its con- tents : — Held, that, in the absence of such notice, second- ary evidence w^as inadmissible, (h) The form of an indictment for perjury does not convey sufficient notice to the prisoner to produce the document to dispense with a notice to produce, (c) A dying declaration is only admissible in evidence where the death of the deceased is the subject of the charge, and the circumstances of the death the subject of the dying declaration. (^) ' ? - Therefore, upon an indictment for using instruments, with intent to procure abortion, the dying declaration of the woman was held inadmissible, (e) The question whether a dying declaration is admissible is for the consideration of the Judge who tries the case, but the weight of it is for the jury. (/) To render the proof of a declaration admissible as a dying declaration, there must be proof that the person («) lb) ) Rcq. V. Brmns, 12 U. C. C. P. 161. Reg. V. Elworthy, L. K. 1 C. C. R. 103 ; .37 L. J. (M. C.) 3. (c) lb. ; See Kalar v. CormcalU 8 U. (\ Q. B. 168. (d) Rey. v. Mead, 2 B. & C. 605, per Abbott, C. J. (e) Reg. v. Hind, 7 U. C. L. J. 51 ; BeU, 253 ; 29 L. J. (M. C.) 147. if) Rc(j. V. Charlotte Smith, 13 W. li. 816. 482 CRIMINAL LAW OF CANADA. who made it was, at the time, under the impression of almost immediate dissolution, and entertained no hope of recovery. Vague and general expressions, such as " I will die of it!"' " I will not recover !" "It is all over with me !" are insufficient to allow the proof of the declaration of a de- ceased person, (a) The result of the decisions as to the admissibility of dying declarations is, that there must be an unqualified belief in the nearness of leath; a belief, without hope, that the declarant is about to die ; and the burden of proving the facts that render the declaration admissible is upon the prosecution, (b) It is said that dying declarations ought to be admitted with scrupulous and almost superstitious care. They have not necessarily the sanction of an oath ; they are made in the absence of the prisoner ; the person making them is not subjected to cross-examination, and is in no peril of prosecution for perjury. There is also great danger of omissions and immaterial misrepresentations, both by the declarant and the witness, (r) The state- ments may be incomplete, and, though true as far as they go, may not constitute the whole truth. They may be fabricated, and their truth or falsehood cannot be ascer- tained ; and experience shews that implicit reliance can- not, in all cases, be placed in the declarations of a dying iiian, for his body may have survived the powers of his mind or his recollection, if his senses are not impaired by pain, or otherwise may not be perfect, or for the sake of ease and to be rid of the importunity of those around him, he may say, or seem to say, whatever they sug- est. {d) g' (a) Ppg. V. Peltier, 4 L. C. R. 3. (6) Reg. v. Jenkins, L. R. 1 C. C R. 192, per Kelly, C. B. (c) Jb. 193, per Bi/lea, J. (d) Re Anderson, 20 U. C. Q. B. 181, per M'Lean, J. EVIDENCE. ' 483 On a trial for murder, a written declaration of the de- ceased was put in evidence for the prosecution. The declaration was made on oath to a Magistrate's clerk about thirteen hours before death. The clerk asked the deceased, before he took down her statement, whether she felt she was likely to die. She said " I think so from the shortness of my breath." Her breath was then extremely short, and her answers wore disjointed from its shortness. The Clerk said, "Is it with the fear of death before you that you make these stale"! ents, and have you any pies- ent hope of your recovei^ " She said "None." The Clerk then wrote out her statement, and added to it the above conversation, in the form of a statement by the de- ceased, but he omitted the word " present " before " hope." He then read over to the deceased what he had written, and she then added the words " at present" after "hope," and signed the declaration : — Held, that the statement was not admissible in evidence, as it did not appear to have been made under a settled hopeless expectation of death, inasmuch as the deceased had expressly qualified the words " no hope " by inserting after them the words " at present." («) In a prosecution for selling liquor without licence, under the Con. Stats. L. C, c. 6, s. 32, it is not necessary that the person who bought the liquor should be produced as a witness. It is sufficient to call a person who saw the sale, and saw what was paid. Nor is it necessary to call the person to whom the liquor was sold to prove that it was " fermented" liquor. A person who tasted the liquor may prove this. (6) A conviction, made by a Justice of the Peace, when duly returned, according to the Statute, to the Court of (a) R&i. V. Jenkins, L. R. 1 C. C. R. 187 ; :38 L. J. (M. C.) 82. ' * (6) Thompson and Diirnfm-d, 12 L. C. J. 285. 484 CRIMINAL LAW OF CANADA. Quarter Sessions, and filed by the Clerk of the 1 eace, be- comes a record of that Court, and may be proved as any other similar record without producing the original, {a) A conviction, by a Justice, for an assault and battery is a record, and a record of our own country, and so not proveable when directly denied by an examin< 1 copy, as in the case of a foreigi judgment, but by the production of the record itself. The course in such case is to pro- duce the original record of conviction, which may be made up by the Justice at any time, and may be procured upon a writ of certiorari from this Court, either to the Justice or to the Quarter Sessions, if the record has been returned thither. Or, perhaps, it may be produced (when it can be so obtained) without the formality of a writ of certiorari. i In case of the death of the Justice who made the con- viction, the writ may go to his executor, (b) There is a well-settled distinction between proving the record of a different Court, from that in which the evi- dence is offered, and a record of the same Court. A Court will look at its own minutes, while sitting under the same Commission, when another Court would require more formal proof, (c) / v i ,,, . ^ ■<: The minutes of a Court of General Quarter Sessions are, in themselves, evidence, in the same Court, of the facts therein stated, without any other proof that the matter there recorded took place. Therefore, a recognizance, in a case of bastardy, taken under the Act 2 Vic, c. 42, be- fore the Court itself, in open Court, is proved by the production of the minutes of the Sessions containing the entry, (d) (a) Graham v. M' Arthur, 25 U. C. Q. B. 484, n. \b) Thomson v. Leslie, 9 U. C. Q. B. 36!). (c) Neill V. McMillan, 25 U. 0. Q. B. 494, per Di-aper, C. J. (d) Ex parte Daley, 1 Allen, 424. EVIDENCE. '' 485 "When a record of acquittal or conviction is produced at nisi prius, the Court cannot enquire into the circum- stances under w^hich it is brought forward. > In a case of feJony, as well as misdemeanor, a copy of the record of acquittal may be, and, indeed, must be, re- ceived in evidence when offered, without its being necessary to shew that an order of a Judge has been obtained, sanctioning the delivery of a copy, though it seems the officer having the custody of the records should not deliver it without an order, {a) Where a conviction has been returned to the Sessions, and filed by the Clerk of the Peace, but quashed on ap- peal afterwards made to the Sessions, the quashing may be proved by an order under the seal of that Court, signed by its clerk, directing that the conviction should be qua- shed the conviction itself being in evidence, and the con- nection between it and the order being shewn. (6) After the return of the conviction, it becomes a record, and may be proved as other records. It is not necessary to make up a formal record of the judgment on the appeal, for the Con, Stats. U. C, c. 114, enables the Court of Quarter Sessions to dispose of the conviction, "by such order as to the Court shall see meet." It would seem that the minute book of the Sessions, having an apparently proper caption, and signed by the Clerk of the Peace, would not be sufficient -ptooi per se of the judgment of the Court quashing the conviction with- out proof of the order following it ; but, if the further prool were added that, in practice, no other record is kept or made up, the minute book would be evidence. So the minute book would be evidence as to indictments, (a) Lmti/ V. Maorath, G U. C. Q. B. O. S. .340. (6) mm V. McMillan, 25 U. C. Q. B. 485. 486 CRIMINAL LAW OF CANADA. verdicts, and judgments in criminal matters, at the ses- sions, (a) A conviction, before a Police Magistrate, can only be proved by the production of the record of the conviction, or an examined copy of it. "Where a Police Magistrate, after hearing a case of common assault, ordered the ac- cused to enter into a recognizance and pay the recogni- zance fee, but did not order him to be imprisoned, or to pay any fine : — Held, that this was not a conviction with- in the corresponding English section of the 32 & 33 Vic, c. 20, s. 45, and secondly, if a conviction, it was not proved by the magistrate's clerk stating the above facts, without producing a record of the proceedings, {b) ' An information, and other proceedings before a Justice of the Peace, returned to the Supreme Court with a cer- tiorari, and filed with the Clerk of the Crown, becomes a record, and may be proved by an examined copy taken before the original was filed, (c) To prove the finding of an indictment at the Sessions, it is not sufficient to produce an exemplification of the record of acquittal, without any general heading or cap- tion to it, {d) and it would seem the proper way of proving it is to have the record regularly drawn up, and produce an examined copy, (e) • ~ > *?*» ,niw .. The production of the original indictment is insuffi- cient to prove an indictment for felony, and a record shewing a proper caption must be made up. (/) .V A judgment of the Court of Quarter Sessions, affirming a conviction of the defendant before a Magistrate, on a charge of assaulting H. M., " by u«ing insulting and abu- •" (a) Neill v. McMillan, 25 U. C. Q. B. 494, per Draper, C. J. (h) Hartky v. Hindmarsh, L. R. 1 C. P. 5r)3. (c) Sewell V. Olive, 4 Allen, 394. (d) Aston V. Wright, 13 U. C. C. P. 14. (e) lb. 19, per Draper, C. J. (/) Henry v. Littk, 11 U. C. Q. B. 296; Rex v. Smith, 8 B. & C. 341. See also on this ^2 & 33 Vic. c. 29, s. 77. EVIDENCE. ' J ' 487 sive language to him, in his own office and on the public street, and by using his fist in a threatening and menacing manner to the face and head of the said H. M,," is suffi- cient proof of a breach of the peace, (a) The Court will judicially notice a public Statute, {b) By the Interpretation Act, 31 Vic, c. 1, s. 7, thirty-eighthly every Act shall be deemed to be a Public Act, and shall be judicially noticed by all Judges, Justices of the Peace and others without being specially pleaded, and all copies of- Acts public or private, printed by the Queen's Printer, shall be evidence of such Acts and of their contents, and every copy purporting to be printed by the Queen's Printer shall be deemed to be so printed, unless the con- trary be shewn. Where an Act of Parliament makes a Gazette evidence if it purport to be printed " by the Queen's Printer, " or " by the Queen's Authority," a G-azette purporting to be printed by A. B., without giving his style as Queen's Printer, and purporting to be printed " by authority," is not receivable : qumre would evidence aliunde be admissible to show that A. B. was the Queen's Printer, and that the authority was the Queen's Au- thority, (c) On a charge of murder, threats made by the prisoner to a third person, more than six months before the commis- sion of the crime, that the prisoner would take the law into his own hands are clearly admissible, though, there are friendly relations between the parties, afterwards, and, if undue prominence is given to these threats in the charge to the jury, the prisoner's counsel should call the attention of the Court to it, and request that the jury (a) Reg. v. Havmer, 17 U. C Q. B. 555. (6) See Reg. v. Shmv, 23 U. C. Q. B. 616. (r) Reg. v. Wallace, 2 U. C. L. J. N. S. 138; 10 Cox, 5i0. 488 CRIMINAL LAW OF CANADA. should be told that, if there were subsequent acts of kindness and expressions of friendliness, they would raise a presumption of kindness to rebut that of malice, (a) The reception of evidence in reply is as a general rule in the discretion of the Judge, subject to be reviewed by the Court. P>idence in explanation of some matter, brought out by the prisoner's witnesses, is properly re- ceived in reply, (b) According to the strict practice, a party cannot, after closing his case, put in any evidence, unless by permis- sion of the Judge. (<•) In an action for libel, the plaintiff cannot, after closing his case, have a paper, which he proved before, read and and liled, except in the discretion of the Judge trying the case, (d) Before the 32 & 33 Vic, c. 29, s. 80, did away with the granting of new trials in criminal cases, it w^as held that the rule is the same in the latter as in civil cases ; at any rate, where the prisoner is defended by counsel, that any objection to the charge of the presiding Judge, either for non-direction or lor mis-direction, must be taken at the trial, when it can be directly cured ; and if not then taken, it cannot be afterwards raised on motion for new trial, or otherwise, especially when the evidence fully sustains the verdict — that non-direction is not an avail- able objection w^hen the verdict is not against evidence ; and where the law is clear, it is no mis-direction to leave the facts simply to the jury, for they are judges of the evidence— that mis-direction could only be on a point of law, and not on a matter of fact, (e) (a) Rec/. V. Jones, 28 IT. C. Q. B. 416. (6) lb. (c) Cross V. Rkkardson, 13 U. C. C. P. 433. (d) lb. (e) Reg. v. Fick, 16 U. C. C. P. 379. See also Coimns v. MerriU, 16 U. 0. C. P. 120. (./' EVIDENCE. -tSB The improper reception of evidence upon a criminal trial is not necessarily a ground for quashing the convic- tion, if the other evidence adduced be amply sufficient to sustain it. (a) It would seem that, as the law now stands in Canada, when material evidence has been incorrectly admitted or rejected, or the verdict, though regularly obtained, is manifestly contrary to the evidence, the proper remedy for the prisoner is an application to the Crown for a par- don, (h) A bill of exceptions will not lie in a criminal case, (c) It follows that, in a criminal case, a question as to the reception of evidence, or the rulings of the Judge thereon, or his directions to the jury, cannot be raised on the record, so as to constitute a ground of error ; (d) for the efioct of a bill of exceptions is to raise the point excepted to specifically on the record, so as to be subject to revision in error, (e) An indictment in a criminal prosecution of the defen- dant is not admissible as evidence in a civil suit against him.(/) The fabrication of evidence, by a prisoner or inducing a witness to swear in his favour, is most damaging to the prisoner's case, (g) The reading to witnesses of the Judge's notes of their evidence, taken on a former trial, should be discouraged. Where, on a second trial, at the same sitting, before (a) Reg. v. Foster, 1 U. C. L. J. 156. (b) Re(f. V. Kennedy, 2 Thomson, 216, per BUsi, J. ; ib. 225, per Wilkins, J. ' (cj Whelan v. Bee;. 28 U. C. Q. B. 132, per Draper, 0. J. (In E. & A-); Reg. V. Pattce, 5 U. C. P. R. 292 ; 7 C. L. J. N. S. 124, per Dalton, J. ; Duval dit Barbinas v. Reg. 14 L. C. R. 74, per Meredith, J.; ib. 79, per Duval, C. J. (in erroi".) id) Winsorv. Reg. L.B..1Q.B- S12, per Cockburn,C. J. (e) Duval dit Barbinas v. Reg. 14 L. C R. 52. (f) Winninqv. Fraser, 12^4. v.. J.2^l. (g) Reg. v. Jones, 28 U. C. Q. B. 416. 4)90 CRIMINAL LAW OF CANADA. another jury, some of the witnesses having been re- sworn, the evidence given by thern at the first trial was read over to them from the Judge's notes, liberty being given, both to the prosecution and to the prisoner, to examine and cross-examine the witnesses, it was held that this proceeding was irregular, and could not be cured by the consent of the prisoner, (a) [a) Reij. V. Bcrtmnd, L. R. 1 P. C. App. 520. ' • ■>'..\' ' ' ':<\> i !'i - ;U>,Jr I ' ■ ' ■' ' '•..-:■ ,; ■ . ....-•'».■,..■!. ' ■IOj.);,'-' ','■'•', •;■'•;■■■' '■ ■■''■ .':;!•' ,1 „■:■■■ lUljV-'''" !,'.;■■■:•,>■ ■•"■; ,i> . I'. ■■'.'■- ' ■■:;■.■. ■'■ 'J ' • ■ , ,'■ • ' 1'" -=■' ,.■<'. - .. . ' I ■ I. ;'■'. PLEADINO. '■■ ■ 491 M' ■ CHAPTER IX. ' ' ' 1 - ■•■■ 'I , >i I ' , ' . • '. . . . ',•■'■ '<■■.,','/ f -'f > ' ■ !< . PLEADINO. ' .' ■•■ ' . • - '.' •.<■■ An indictment grounded upon an offence made by Act of Parliament must, by express words, bring the offence within the substantial description made in the Act. Those circumstances mentioned in the Statute to make up the offence shall not be supplied by any general con- clusion contra formam statuti. As to indictments in general, the charge must contain such a description of the injury or crime, that the defen- dant may know what injury or crime it is which he is called upon to answer ; that the jury may appear to be warranted in their conclusions of guilty or not guilty upon the premises delivered to them ; and that the Covrt may see such a definite injury or crime that they may apply the remedy or punishment which the law pre- scribes. The certainty essential to the charge consists of two parts — the matter to be charged, and the manner of charging it. As to the watter to be charged, whatever circumstances are necessary to constitute the crime im- puted must be set out, and all beyond are surplusage, (a) Where an offence is created by Statute, it is the safest rule to describe the offence in the very words used in the Statute, and the Courts are generally averse to sup- port indictments where other words have been substi- tuted, {b) Where a Statute uses the word " maliciously " in de- la) Reg. V. Tierney, 29 U. C. Q. B. 184-5, per Morrison, J. (6) Reg. v. Jape, 3 Allen, 162, per Carter, 0. J. 492 CRIMINAL LAW OF CANADA. scribing an offence, it is not snflicient to allego that it is done " IVloniouNly," as tho ForintM* expression is not in- cluded in the latter. Where a Statute uses the words *' wili'ully and maliciously," and the act is laid as done "unlawiully, maliciously, and I'eloniouHly," the word *' wilfully" being" omitted, the indictment is insufficient; for where both the words "wilfully " and " maliciously " are used, they must be understood as descriptive of the ofFenco, and, therefore, necessary in describing the ollence in an indictment, {(t) It is not sufficient for an indictment to follow the words of a Statute where the allegations submit a ques- tion of law for the jury to determine. It is not an uni- versal rule that an offence may be described, in an indict- ment, in the words of the Statute which has created it; for an indictment charging that the defendant falsely pretended certain facts, although in the very language of the Statute, was held defective in error, for not aver- ring specifically that the pretences were false. (6) Where a Statute creates a new offence, under particu- lar circumstances, without which the offence did not exist, all these circumstances ought to be stated in the indictment. The prisoner should be able to gather from the indictment whether he is charged with an offence at the common law, or under a Statute, or, if there should be several Statutes applicable to the subject, under which Statute he is charged, (c) '•'^' ♦•*■ - " '■ ^-^■'^'' ' ">*' Where the offence charged is created by any Statute, or subjected to a greater degree of punishment by any Statute, the indictment shall, after verdict, be held suffi- cient, if it describes the offence in the words of the Statute creating the offence, or prescribing the punish- (aj Reg. v. Jope, ,3 Allen, 162-3, per Carter, G. J. (bj Reo V. Switzer, 14 U. C. C. P. 477 ; Rex v. Pen-ott, 2 M. & S. 379. (c) Jtieg. V. Cummings, 4 U. C. L. J, , 188. per Eaten, V. C. rLKAi)iN(j. 493 ment, although they bo disjuiictivoly stntod, or appear to incliulo more than one ofleiice, or otherwise, (a) It would appear, however, that this clause does not dispense with the necessity of statiiin;- the circumstances under which the od'ence was committed, and without which it could not have bc^n committed, {b) There are numerous instances where, the Statute being disjunctive, a conjunctive statement is commonly used in an indictment. Thus, the Statute 7 & 8 Geo 4, c. 30, enacts, that if any person shall unlawi'ully raid maliciously cut, break, or destroy any threshing-machine, the in- dictment may charge that the accused did feloniously, unlawfully, and maUciously cut, break, and destroy. So, where the offence by Statute was unlawfully or mali- ciously breaking down, or cutting dow^n, any sea bank, or sea wall, the indictment may charge a cutting and breaking down, (c) And the indictment will not be bad on the ground of its charging several ofl'ence.5. In indictments for offences against the persons or pro- perty of individuals, the christian and surname of the party injured must be stated, if the party injured be known, (d) Surplusage, or the allegation of unnecessary matter, will not vitiate an indictment at common law, or on a Statute. The unnecessary allegations need not be proved, and may be rejected, provided they are not matters of description, (e) and do not alter the meaning of the words requisite to define the offence charged. (/^ Only material allegations need be proved, (g") . :. ,. (a) Reg. v. Baby, 12 U. C. Q. B. 346 ; 32 & 33 Vic. c. 29, a. 70. ' ' ' * (b) Reg. v. Cummings, 4 U. C. L. J. 188, per Fsten, V. C. (c) Reg. V, Patterson, 27 U. C. Q. B. 145-6, per Ih-aper, C. J. (d) Reg. v Quinn, 29 U. C. Q. B. 163, per Richards, C. J. (c) Reg- V, Bryam, 12 U. C. C. P. 167, per Draper, C. J. If) Reg. V. Bathgate, 13 L. C. J. 304, per Brummond, J, iff) Reg. V. Bryant, supra, 169, per Richards, C. J. ^v 494 CRIMINAL LAW OF CANADA. An indictment charged A. with having made a false declaration, before a Justice, that he had lost a pawn- broker's ticket, whereas he had not lost the ticket, but " had sold, lent, or deposited it with one C." : — Held, that the indictment was not bad for uncertainty, because the words " had sold, lent, or deposited " it were surplus- age (a) It is a universal principle, which runs through the whole criminal law, that it will be siifficient to prove so much of an indictment as charges the defendant with a substantive crime, (b) The ordinary conclusion of an indictment for perjury, " did wilfully and corruptly commit wilful and corrupt perjury," may be rejected as surplusage, (c) If the words '' contra formam statuti'" are improperly introduced into an indictment, they may be rejected as surplusage. (^r any person insensible, with intent, etc., should set forth the means, for they are material as to the offence. But it would, no doubt, be sufficient to follow the forms in the sched. to the 32 & 33 Vic, c. 29, in any case to which they are applicable. It is not necessary that the proof should, in all cases, tally with the mode of death laid in the indictment. Where an indictment charged the prisoner with felo- «) See Mulcahy v. Reg. L. R. 3 E. & I. App. 322, per Willea, J. b) See Reg. v. Shea, 3 Allen, 130-1, per Carter, C. J. c) See Rey. v. Magee, 2 Allen, 16 per Carter, C. J. ; Arch. Cr. Pldg. CO-3. {(l) Reg. V. Ma^ee, supra. ..,(,,.., . . ^ 508 CRIMINAL LAW OF CANADA. niously striking the deceased on the head with a hand- spike, giving him thereby a mortal wound and fracture^ of which he died : it was proved that the death was caused by the blow on the head with the handspike, but that there was no external wound or fracture, the imme- diate cause of death being concussion of the brain, pro- duced by the blow : — Held, that it is sufficient if the mode of death is substantially proved as laid, and it is not necessary that all the intermediate steps between the primary cause and the ultimate result should be also alleged and proved, (a) The venue of legal proceedings is intended to shew where the principal facts and circumstances in the pro- ceedings occurred, or were alleged to have occurred, with a view to shew that the Court and jury have jurisdiction in the matter. It was formerly necessary to state in the indictment the venue expressly, or, l)y reference to the venue in the margin, to every material allegation, {b) But now, by the 32 & 33 Vic, c. 29, s. 15, it is not necessary to state any venue in the body of any indict- ment. S. 11, of this Statute, relates to procedure only, and does not authorize any order for the change of the place of trial of a prisoner, in any case where such change would not have been granted under the former practice. The Statute does away with the old practice of removing the case, by certiorari, into the Queen's Bench, and then moving to change the venue, (c) Under s, 9, of this Statate, the offence may be alleged to have been committed in any District, County, or place through any part whereof the coach, waggon, cart, car- riage, or vessel, boat or raft passed, in the course of the journey or voyage during which the offence was commit- (rt) Rc(i. V. Shea, 3 Allen, 129. (b) Rc(j. V. Atkinson, 17 U. C. C. P. 299-.S00, per J. Wilson, J. (c) He'j. V. McLeod, G C. L. J. N. S. 04 ; 5 U. C. P. R. 181. PLEADING. 509 ted, and the indictment need not state the place where the offence was actually committed, (a) "Where an indictment stated an assault committed upon one Marsh, at Frederickton, in the County of York, but the assault was proved to have been committed on board a steamboat, on the Eiver St. John, in the course of its passage from St. John to Frederickton, before the steam- boat arrived within the County of York, and Vv^hile it was passmg through another County : — Held, that the indict- ment was sufficient, and that it was unnecessary to allege the facts as they actually occurred, (b) It would seem that no objection to the caption of an indictment, for an allegation that the G-rand Jurors were '• sworn and affirmed," can be sustained without shewing that those who were sworn were persons who ought to have affirmed, or that those who affirmed were persons who ought to have sworn, (c) Where an indictment for felony lays a previous con- viction, notwithstanding that, when the prisoner is given in charge to the jury, the subsequent felony must be read alone to them, in the first instance, it is no objection to the indictment that the previous conviction is laid at the commencement, {d) "Where a prosecutor has been bound, by recognizance, to prosecute, and give evidence, against a person charged with perjury, in the evidence given by him on the trial of a certain suit, and the Grand Jury have found an in- dictment against the defendant, the Court will not quash the indictment because there is a variance in the specific charge of perjury contained in the information, and that contained in the indictment, provided the indictment sets (a) See Reg. v. Webster, 1 Allen, 589. (6) n>. (c) Mukahy v. Reg. L . 3 E. & I. At)p. 30(5. ((i) Reg. V. Hilton, 5 L. 0. L. J. 70 ; Bell, 20; 28 L. J. (M. C.) 28. 510 CRIMINAL LAW OF CANADA. forth the substantial charge contained in the information, so that the defendant has reasonable notice of what he has to answer, {a) An application to quash an indictment should be made in limine by demurrer or motion, or the defendant should wait the close of the evidence for the prosecution to de- mand an acquittal, (b) Applications to quash an indictment are considered ap- plications to the discretion of the Court, (c) A defective indictment may be quashed on motion as well as on demurrer, {d) It is unusual to quash an indictment, on the application of a defendant, when it is for a serious offence, unless upon the clearest and plainest grounds ; but the Court will drive the party to a demurrer, or motion in arrest of judgment, or writ of error. It is, therefore, a general rule that no indictmeni s which charge the higher offences, as treason or felony, will be thus summarily set aside, {e) The omission of the residences and occupations of Grand Jurors, in the list, and in the panel, was held suf- ficient ground for quashing an indictmen t for felony. (/) Where an indictment charges no offence against law, the objection may be properly taken i a arrest of judg- ment, or the indictment may be demurred to, or a writ of error will lie. {g) No me:e formal defect, ia an indictment, can be objected to after the prisoner is found guilty and sentenced at the Court of Oyer and Terminer, {/i) An objection to an indie onent, as insufficient in law, (a) Beg. v. Broad, 14 U. C. C. P. 168. (6) Eeg. v. Boy, 11 L. 0. J. 90, per Ih-ummond, J. See 32 & 33 Vic. c. 29, 3. 32. ' (c) Beg. V. BeJyea, 1 James, 227, per Dodd, J. ; Bex v. Hunt, 4 B & Ad. 430. (d) Beg. v. Bathjate, 13 L. C. J. 299. (e) Beg. v. Belyea, supra, 225 per Dodd, J. * (f) lb. 220. (g) Beg. v. Clement, 26 IT. C. Q. B. 300, per Draper, C. J. (h) Horseman v. Beg. 16 U. C. Q. B. 544, per Bobinson, C. J. PLEADING. 511 made after the swearing of the jury, and after the pri- soner was given in charge to them, was held not too late ; for otherwise there never could be a motion in arrest of judgment, (a) Semble, an objection may be made at any time for a substantial, but not for a formal, defect, and that the 32 & 33 Vic, c. 29, s 32, only applies to the lat- ter. Qj) The forms of indictment in the 32 & 33 Vic, c. 29, schedule A., are intended as guides, to simplify forms of indictments. They cannot apply to cases to which they are not applicable, so as to misinform a person of the nature of the offence with which he stands charged, (c) The use of the forms is discretionary with the person framing the indictment, (d) The forms of indictment in the schedule L, title XL, of of the (N. B.) Eev. Slats., we-e iaapplicable to offences not referred lo in that title, (e) It has been held that, before pleading to an indictment, the defendant must submit to the jurisdiction of the Court. (/) The prisoner must plead in. abatement before he pleads in bar. [g) No more than one plea can be pleaded to any indict- ment for misdemeanor or criminal information, {h) («) Reg. V. Ryland, L. K. 1 C. C. R. 99 ; 37 L. J. (M. C.) 10. (h) lb. (c) Reg. V. Cummings, 4 U. C. L. J. 188-9, per Spragge, V. C. (dj lb. (e) Reg. v. M'Laugklin, 3 Allen, 159. (fj Rc'j. V. Maxwell, 10 L. C. R. 45. (gj Whelanv. Reg. 28 U". C. Q. B. 47. (hj Reg. v. Charlesworth, 1 B. & S. 460 ; 31 L. J. (M. C.) 26, 512 CHIMIN AL LAW OF CANADA. CHAPTER X. PRACTICE. Justices of the Peace were appointed in the reign of Edward the first, and their appointment has been con- tmued until the present time, (a) Under the Con. Stats, Can. c, 100, s. 3, the oath of qua- lification, by a Justice of the Peace must have been taken before some Justice of the Peace of the County for which he intended to act. It could not be adminis- tered by the Clerk of the Peace for such County, under the writ of Dedimus Potestatem issued with the Commis- sion of the Peace, {b) The 29 Vic, c. 12, recites that certain Justices had, theretofore, in error taken and subscribed the oath of qua- lification before a Clerk of the Peace of the District or County, or before a Commissioner assigned, by Dedimus Potestatem, to administer oaths and declarations, and it confirms such oaths so taken and indemnifies the Justice from ail penalties, and forfeitures in respect thereof. The Act also prescribes before whom oaths shall, hereafter, be taken. A certificate purporting to be under the hand and seal of the Clerk of the Peace, that there was no declaration of the Justice's qualification filed in his ofhce. is not suffi- cient proof that the Justice is not properly qualified, (c) The Justice, in this case, signed a recognizance in the (a) Req. V. Atkinson, 17 U. C. C. P. 300, per J. Wilson, J, (b) Herbert, q.t.y. DowsweU, 24 U. C. Q. B. 427. (c) Reg. V. White, 21 U. C. C. P. 354, PRACTICE. " 51 •> name of " N. Dickey, J. P." and the certificate shewed that no oath of qualification was filed by " Nathaniel Dickey." It seems this w*otild not be sufficient, and that the identity of the Justice acting, with the one whose qualification was filed, should have been proved, (a) Under 29 & 30 Yic, c. 51, s. 357, a Police Magistrate for a city, is ex officio, a Justice of the Peace for the Coun- ty, in which such city lies, and by s. 360, a Justice of the Peace for a county in which a city is, may try and inves- tigate any case in a city, where the offence has been committed in the county, or union of counties, in which such city is, or which such city adjoins. (6) Under s. 357 as amended by s. 38, of the (Ont.^ 31 Vic, c. 30, an alder- man is not ex offecio legally authorized to act as a Justice of the Peace, until he has taken the oath of qualification as such. (6') The plain import of ss. 356, 360, 367 and 373, is to establish certain local Courts, having limited criminal jurisdi"iion, and to define the respective jurisdictions of the Police Magistrate of a city situate within a County, and of the Justices of the Peace of that County, in respect of offences committed within the city, and County res- pectively, [d) Under the Commission of the Peace, Justices have a general power for conservation of the peace, and the ap- prehension and commitment of felons. The Commission gives them jurisdiction in all indictable offences, to dis- charge, admit to bail, or commit for trial, (e) The maxira, omnia prcesumuntur rite esse actu, does not apply to give jurisdiction to Justices, or other inferior (a) Reg. v. White, 21 U. C. C. P. ZoA. (b) Rex/. V. Mosier, 4 U. C. P. R. d4. (cj Rey. V. Boyle, 4 U. C. P. R. 266. (d) Reg. v. Morton, 19 U. C. C. P. 27, per Gwynne, J. (e) Connors v. Darling, 23 U. 0. Cj. B. 543, per Oowan. J. GG 514) CRIMINAL LAW OF CANADA. tribunals, (a) On this principle, in a prosecution for a penalty, under a by-law of a corporation, the by-law must be proved ; for it must appear on the face of the proceed- ings that there is jurisdiction, (h) A Justice's jurisdiction depends, not on jurisdiction over the subject matter, but, over the individual arrest- ed, and to give him that jurisdiction, there should be an information properly laid, (c) Where a limited authority is given to Justices of the Peace, they cannot extend their jurisdiction to cases, not within it, by finding as a fact that which is not a f act, and their warrant in such a case will be no protection to the officer who acts under it. (d) Where a Statute gives to Justices a discretion, whether they will do a particular thing, it does not enable them, having heard the case, to refuse a warrant, because they think the law under which they are called upon to act is unjust, (e) Where the charge laid as stated in the information, does not amount in law to the offence, over which the Justice has jurisdiction, his finding the party guilty by his conviction, in the very words of the Statute will not give him jurisdiction. The conviction would be bad on its face, all the proceedings being before the Court. (/) In a prosecution before Justices, their jurisdiction is ousted by the accused setting up a claim of right, yet that claim must be bona fide, and the mere belief of the accused unsupported by any ground for the claim, will be insufficient, (g) (a) Beg. v. Atkinson, 17 U. C. C. P. 302. • . (h) Reg. v. Wwtman, 4 Allen, 73 ; Rex v. All Saints, Soutliampton, 7 B. & C. 785. (c) Caudle V. Ferguson, 1 Q. B. 889 ; Friel v. Fci-guson, 15 U. C. C. P. 594, per A. Wilson, J, (d) The Haidee, 10 L. C. R. 101 ; The Scotia S. V. A. R. 160. (ej Reg. v. Botcler, 4 B. & S. 9.59 ; 33 L. J. (M. C.) 101. (/; Re McKinnon, 2 U. (!. L. J. N. S. 327, per A. Wilson, J. ((f) Reg. V. Cridland, 7 E. & B. 853; 27 L. J. (M. C.) 28; Reg. v. Stimpson, 4 B. & S. 307 ; 32 L. J. (M. C) 208. PRACTICE. 615 The jurisdiction is not ousted by the accused setting up a claim of right, which cannot by law exist, (a) On the hearing of a complaint for assault, under the 32 & 33 Vic, c. 20, s. 43, if it be shewn that a bona fide ques- tion as to the title to land is involved, the jurisdiction of the Justices is at once ousted, by s. 46, and the Justices cannot proceed to enquire into, and determine by sum- mary conviction, any excess of force alleged to have been used in the assertion of title, (b) The matter may still be disposed of by indictment, if it bo a proper case for such a proceeding, (c) A complaint under s. 43 cannot be withdrawn by the comf)lainant, even with the consent of the Justice, (f/) The reason why the complainant is prevented from with drawing the charge before the Magistrate is, that he has made it a public matter, and that the person charged has the right to have it tried, and because, also, the com- plainant has made his election to have the case so dis- posed of, from which he cannot withdraw, (e) If Justices hear the case but decline to conclude it, as they should have done, they will be ordered to hear it. (/) So if they refuse to hear the whole case, and dismiss the summons, (g) But if Justices, in their own discre- tion, refuse to hear a complaint which is the subject of an indictmenf , the Court will not compel them to go on. (h) The fact that the defendant pleads guilty to the charge cannot deprive the Justice of the discretion he has to ad- judicate on the case, under s. 46. (a) Hudson v. McRae, 4 B. & S. 585 ; 33 L. J. (M. C.) 65. (b) Reg. V. Pearson, L. R. 5 Q. B. 237. (r) Ih. 239, per i>«sA, J. ((/) Re Conklin, 31 U. C. Q. B. 160. (e) lb. 168, per Wilson, J. See also Tunnicliffe v. Tedd, 5 C. B. 553; VaiKihton and Bradshaw, 9 C. B. N. S. 103. ( /) Rfx V. Tod, Str. 531. ifi) Ikx V. Justices Cmnberland, 4 A & E. 695. (/() Reg. V. Higham, 14 Q. B. 396 ; Re Conklin, supra, 167, per Wilson, J. 516 CRIMINAL LAW OF CANADA. The adjudication means the Justice's final judgment or sentence to be pronounced, (a) If the Justice adjudi- cate, the defendant will be entitled to the certificate, under s. 44, and if he do not adjudicate, there will be no certificate, and so there will be no bar to any subsequent proceedings. (6) There is no right to a certificate unless there has been a hearing upon the merits, {c) A certificate under s. 44, given by a Justice on a charge of assault and battery, is a defence to an indictment, founded on the same facts, charging an assault and bat- tery, accompanied by malicious cutting and wounding, so as to cause grievous or actual bodily harm, (d) So, a former conviction by a Justice is a bar to an indictment for felonious stabbing, (e) The certificate is also a bar to an indictment for assault, with intent to commit rape. (/) One C. appeared to an information charging him with an assault, and praying that the case might be disposed of summarily, under the Statute. The complainant ap- plied to amend the information by adding the words " falsely imprison." This being refused, the complainant offered no evidence, and a second information was at once laid, including the charge of false imprisonment. The Magistrate refused to give a certificate of dismissal of the first charge, or to proceed further thereon, but en- dorsed on the information " Case withdrawn by permis- sion of Court, with the view of having a new infor- mation laid " : — Held, that the information might be amended, but, as the original was under oath, that it must be re-sworn. Semble, under the circumstances, the more correct course would have been to go on with the original case, and, under s. 46, to refrain from adjudicating, (g-) (a) Re Conklin, 31 U. C. Q. B. 166, per Wilson, J. * • (6) lb. 166, per Wilson, J. ; Hartley v. Hindmarsh, L. R. 1 C. P. 553. (c) Re Conklin, 31 U. C. Q. B. 168, per Wilson, J. (d) lb. 165, per Wilson, J. ; Rq/. v. Ebnnyton, 1 B. & S. 688. (c) Rey. V. Walker, 2 M. & Rob. 446 ; Re Conklin^ supra, 165, per Wilson, J. (/) lb. ; Re Thompson, 6 H. & N. 193 ; 6 Jur. N. S, 1247. (g) Re Conklin, supra, 160. PRACTICE. 517 Justices of the Peace have no jurisdiction to convict summarily, at common law, in any case, but, in all cases* a direct legislative authority must be shewn, or the con- viction will be illegal, (a) At common law, Justices had no summary jurisdic- tion to try complaints for assaults. That jurisdiction was derived solely from the 4 & 5 Vic, c. 27, s. 27. It seems that, under the 32 & 33 Vic, c 20, s. 43, the prayer for summary jurisdiction should appear on the face of the conviction, (b) The 32 & 33 Vic, c. 31, as amended by the 33 Vic, c 27, confers power on Justices to convict summarily, in certain cases, and prescribes the duties of Justices of the Peace out of sessions, in relation to summary convictions and orders. Under s. 5„ of this Statute, a variance be- tween the information, complaint, or summons, and the evidence adduced on the part of the informant, or com- plainant, is not fatal if the defendant has not been de- ceived or misled thereby, or has no defence on the merits, (c) The object of the Legislature, in this provision, seems to have been to prevent the failure of justice in cases where, by the old law, very great technical precision was required, and that before a tribunal where great legal ac- curacy could hardly be expected, {d) It may be doubt- ful, under the terms of the section, whether the question of the party having been misled is not merely for the discretion of the Justices, as to the adjourning the hear- ing to a future day. (e) On an information for selling spirituous liquors with- out a license, contrary to the by-laws of the Town of {a) Brass v. Huber, 18 U. 0. Q. B. 286, per Robinson, C. J. " ' (6) Ke»Sa)t evidence of the by-l'iws, and the Justices convicted the defendant of selling, contrary to the Statute to regulate the sale of spirituous liquors, 17 Vic, c. 15, : — Held, that, as it did not appear that the defendant was misled, or had any defence on the merits, the variance between the information and the conviction was not fatal, smce the (N. B.) Kev. Stat., c. 138, s. 1, which is, in substance, ihe same as s. 5 of the present Act. («) But it would seem that this section must be held to apply only to informations made by persons who have authority to make them, and not to give vitality to an in- formation made by a person without any authority, and, in fact, to give the Justice jurisdiction over the matter when otherwise he would not have it. (h) A Justice has no authority, either under the 32 & 33 Vic, c 30 or c 31, to issue a summons or warrant for the arrest of a party without an information properly laid. The laying of the information is necessary to give the Justice jurisdiction, even where a crime is committed over which he might have jurisdiction, (c) It is the duty of a Justice to have an information laid, and, when properly laid, he has power over a person, to bring him up to answer a charge, (ri) An information, by a person who has no authority to make it, is the same as no information, and does not authorize the issue of a summons or warrant, (e) An information, to be tried before two Justices, is good, though only signed by one. (/") . ■. I f' ' ' (a) Ex parte Dunlap, 3 Allen, 281. (6) Ex parte Eagles, 2 Hannay, 54, per Ritchie, C. J. (c) See Appleton v. Lepper, 20 U. C. C. P. 142, per Hayartij^ J- ; Powell v. Williamson, 1 U. C. Q. B, 154; Friel v. Ferguson, 15 U. C. T, P. 584; ex parte Eagles, 2 Hannay, 53-4, per Ritchie, C. J. (d) Connors v. Darling, 23 U. C. Q. B. 546, et seq., per Hagartij, J. (e) Ex parte Eagles, supra, 54, per Ritchie, C J. (/) Falconbridge q. t. v. Tourangeau, Rob. Dig. 260. . : • PRACTICE. 519 Unless a Statute roquiro that the information should bo in writinji', or on oath, it need not be so. (a) Where power is given, by an Act, to a Justice to issue a summons upon complaint made on oath, and the party to be summoned appears and del'ends the suit, without any summons being issued, he cannot after'vards o})jcct that there was no complaint on oath, that being oidy a preliminary step to authorize the summons to issue. (6) A complaint charging a " clandestine removal of pro- perty" does not justify or require the issuing of a war- rant, as for a criminal offence, and the utmost that it does justify is the issuing of a summons under the Act relating to petty trespasses, (c) If a Statute gives summary proceedings for various of- fences, specilied in several sections, an information is bad which leaves it uncertain under which section it took place, (d) Where a Statute creates several offences, one of which is charged in an information, a conviction of another offence, the subject of the same penalty, will be bad. In a prosecution under the Con. Stats. L C, c. G, the con- viction must exactly conform to the charge in the infor- mation, (e) In a complaint for breach of a by-law, it is not neces- sary to insert the by-law itself, or to make a distinct allegation that it is in force. A complaint may be made and a summons issued for two offences, provided the defendant has not been arrested in the first instance, and a conviction for one of such offences specifying it is valid. Service of a copy of a sum- Ca) Friel v. Ferguson, 15 U. C. C. P. .594; Re Conklin, 31 U. C. Q. B. 168, per A, Wilson, J. ; see s. 24. {b) Ex parte Wood, 1 Allen, 422. This case was on a local act, 6 Win. 4, c. 44, as to recovery of seamen's wages. (c) McNellis v. Oartshore, 2 U. C. C. P. 471, per McLean, J. (d) Thompson and Durnford, 12 L. C. J. 287, per Mackay, J. (e) lb. 28.'). 520 CniMlNAI, LAW OK ( ANADA. mons, issued by a Maj^istrato, followed hy appoaraiice of the defendant, is sufficient, (a) Where two or more persons may (tomniit an offence under an Act, the information may })e jointly laid ajj^ainst them, (b) But where the penalty is imposed upon (;ach person, it is wrong to convict them jointly, even wlien they are charged on a joint ini'ormation. (a) If either the penalty lie imposed, by the Act, on each person convicted, oven where the oHence would, in its own nature, be single, or if the quality of the ollence be such that the guilt of one person may be distinct from that of the other, in either of these cases the penalties are several, (d) At Petty Sessions, an information was laid against two defendants, charging that they did unlawfully use g un and kill two pheasants, contrary to th(^ 1 & 2 Wm. 4, c. 32, s. 3. l^]ach claimed to be tried separately, in order to call the othm- as a witness. The Justices refused, and heard the charge againsf both together, and convicted them, and a conviction was drawn up separately against each defendant imposing a penalty of £8 : — Held, that it was in the discretion of the Justices whether they would hear the charge separately or not, that as the penalty was im- posed on every person acting in contravention of the Statute, each defendant was separately liable to the whole penalty ; and that, separate convictions were right, al- though the prisoners were charged on a joint informa- tion, (e) It is conceived that the ground of the decision, in this case, will apply to the Con. Stats. U. C, c. 104, s. 7, and that, where there are several defendants, they may be (a) CorUjnau v. Harbour Oonirs. Montreal, 5 L. C. R. 479. . (fc) Reg. V. Littkchild, L. R. 6 Q. B. 295, per Lmh, J. (<•) Ih. 295, imr Mellor, J . (d) 76. 296, per /fa/mcn, J. • (e) Reg.\. Littkchild, supra. PRACTKK, 521 tri<'(l toj»«'tli('r and separate i)enaltie8 impoeed on each, lor 8. 7 impoHCH a separate p«;nalty on any person. A conviction i^urportinjr to be made under Con. Stats. C*an. c. 03, a. 28, changed that del'endanl, at a time and place named, wilfully and maliciously, took and carried away the window sashes out oi" a building, owned l)y one C, against the Ibrm of the {Statute, etc., without alleging damage, injury or spoil to any property, real or i)ersonal, or finding damage to any amount : — Held, that the con- viction should clearly shew whether the damage, injury or spoil complained of, is done to real, or personal pro- perty, stating what property, and in consequence of s. 29, where a private person is prosecutor, should also shew the amount, which the Justice has ascertained to be rea- sonable com])ensation for such damage injury 'or spoil, {a) The offence, created by the Statute, is damaging pro- perty, not taking and carrying it away. (6) It is sufficient, if a conviction Ibllows the forms set out in the Statutes, for the forms are intended as guides to Justices, and, otherwise, they would prove only snares to entrap persons, {c) A conviction following the form, (L.) (N.B.) 1 Rev. Stat. 391, is sufficient. It would be no objection, however, if the conviction stated the narfte of the informer, or party, laying the information, [d) Where a form of conviction was not sanctioned by any express Statute, a Justice was bound to follow such form, as would be sufficient under 2 Wm. 4, c. 4., which sup- plied a form to be used in all cases of summary convic- tion, except where a form is specially given for the par- ticular case, (e) . (a) Rtfj. V. Caswell, 20 U. C, C. P. 275. (b) lb. (cj Reg. V. Shaw, 23 U. C. Q. B. (518, per Draper, C. J. ; Rcid v. McWhinnie, 27 IT. C. Q. B. 289; Reg. v. Hyde, Ki Jur. .337 ; Re Allison, 10 Ex. 561. fdj Ex parte Eagles, 2 Hannay, 53, per Ritchie, C. J. ; Reg. v. Johnsmi, 8 Q. B. 102. (c) Moore V. Jarron, 9 U. C. Q. B. 233. See 32 & 33 Vic, c. 31, s. 50. 522 CRIMINAL LAW OF (JANADA. Tho name of the informant or complainant must in some form or other appear on the face of the convic- tion, (a) The place, i'or which the Justice acts, must be shewn, and it must be alleg-ed that the offence was (com- mitted within the limits of his jurisdiction, or facts must be stated, which r,nve jurisdiction beyond those limits, (b) The offence, of which the defendant is convicted, must be stated with certainty, otherwise the conviction will be quashed. A conviction " for wilfully damagini;;, spoil- ing-, and taking-, and carryirig- away six bushels of apples of the said liogers, wh(;reby the defendant committed an injury to the said goods and chattels " was held not to contain a statement of an offence, for which a conviction could take place, (c) Where an information, in a conviction, charged tho de- fendant with measuring or surveying lumber, intended for exportation in violation of the Act of Assembly, 8 Vic, 0. 81, and the' evidence rei'erred to three distinct acts, but it did not appear for which of them the defendant had been convicted : — Jfe/d, that the conviction was bad for uncertainty, (d) A conviction ad judging the defendant to be imprisoned for twenty-five days, or payment of £5 and costs, in the alternative, is bad. (e) A conviction, by two Justices for taking lumber fe- loniously or unlawfully, is bad, for it should not have been in the alternative. If the conviction was unlawful only, not felonious, it should have shewn how it was unlawful, and it should have shewn, also, that the offence came under our statute, which gave the Justices power to convict. (/) («) Ke JJcnncv/, H U. C. L. J. 200. (h) Kcij. V. Slum, Zi U. C. Q. B. 018, pur Draper, C. J ; Sex v. Jtldwards, 1 Ed. 278. (o) KuHtman v. Jteid, 0. C. Q, B. Gil, (d) Ke;/. v. StereriK, ;i K«rr, ^{■'W). {c) Itf(j. V. Wortman, 4 Allen, 73. ( f) Rtu- V, t'miV/, 2\ U. C!. Q. B. 5.>2. PRACTICE. 523 The petitioner wan convicted, by a Court Martial held at the city oi' Montreal, on the 26th, 27th, 28th and 29th days o( March, 1867, and on the 1st and 2nd days oi" April, 1867, on the following charge " lor disgraceful con- duct, in having at Montreal, Canada East, some time be- tween the 17th January and 16th March, 1867, fraudu- lently embezzled or misapplied, about five hundred cords of wood, government property intrusted to his charge as an Assistant-Commissiariat-Storekeeper, and which, at at the latter date, was found deiicient," and, thereupon, on the said conviction, the Court, forthwith, sentenced the petitioner, among other penalties, to be imprisoned, with hard labour, lor six hundred and seventy-two days. The Court held that it did not appear there had been preferred against the petitioner, any specilic charge, nor any conviction of him upon a specilic, or positive charge, but a conviction in the alternative, one of the two being no ollence created by the 17th article of the Mutiny Act, without any certainty, as to either of the two charges in th disjunctive, and that this was a matter of substance> and therefore, the warrant of commitment was null and void, and tne petitioner, who had been committed to prison, was entitled to be set at liberty, (a) In describing the offence in convictions, it is not suffi- cient to state, as the offence, that which is only th(; legal result of certain facts, but the facts themselv(;s must be specified, so that the Court may judge whether they amount in law to the offence. A conviction, by a Magistrate, stated that defendant did, on etc., at etc., being a public highway, use blasphe- mous language contrary to a certain by-law passed almost in the words of the Con. Stats. U. C. c. 54, s. 282 ss. 4, but there was no statement of the paiticular lan- (a) Re Moore, 11 L. C. J. 94. 524 CRIMINAL LAW OF CANADA. guage used, it was held bad as the statement in the con- viction was only the legal result of certain facts, and the facts themselves were not set out. (a) The particular words used should have been stated. As a general rule, where an Act in describing the offence makes use of general terms, which embrace a variety of cir- cumstances, it is not enough to follow, in a conviction, the words of the Statute ; but it is necessary to state what particular fact prohibited has been committed. But, in framing a conviction, it is, in general, sufficient to follow the words of the Statute, where it gives a particular des- cription of the offence. Where a particular Act creates the crime, it may be enough to describe it in the words of the Legislature, but where the Legislature speaks, in general terms, the conviction must state what act in particular was done, by the party offending, to enable him to meet the charge, (b) The legal eflect of reversing or annulling a conviction is to render the sentence and imprisonment illegal, and not as for a crime. The rule has been laid down, that when judgment, pronounced upon a conviction, is falsi- fied or reversed, all former proceedings are absolutely set aside, and the party stands as if he had never been at all accused ; restored in his credit, his capacity, his blood and his estates, with regard to which last, though they be granted away by the crown, yet the owner may enter upon the grantee, with as little ceremony as he might enter upon a disseizor, (c) Where a conviction, which had been affirmed on ap- peal to the Sessions, was brought up by certiorari, con- trary to the 32 & 33 Vic, c. 30, s. 71, as amended by the Co; Re Donnelhj, 20 U. C. C. P. 105. (b) Re Donnelly, 20 IT. C. C. P. 167, por Hamrty, C. J.; ami sue Jtex v. Sparling, 1 Str. 497 ; iJ«//. v. Scott, 4 B. & S. :}68 ; Reg. v. Nott, 4 Q. B. 768, a« to particular applications of these principles. (cj Davis V. Stewart, 29 U. C. Q. B. 446, per Wilson, .T. ; 4 Bla. Com. 393. PRACTICE. 525 33 Vic, c. 27, s. 2, which enacts that in such case no certiorari shall issue : — Held that, although the conviction was clearly bad, the Court could not quash it, for the case was one in which the Justice had jurisdiction, and the Court were not asked to do anything to enforce the conviction, and no motion had been made to quash the certiorari, (a) It would seem that a conviction by a Justice may be quashed, unless it is sealed, (b) A» conviction will be quashed, if it appears that the offence was for a felony, and that the defendant was not put on his defence, or allowed to cross-examine the wit- nesses, (c) A conviction will be quashed, if the summons states no place where the offence was committed, although the place appear on the face of the conviction, (d) But under the 14 & 15 Vic, c 95, a conviction by a Justice, awarding imprisonment, and also for damages and costs, will be sustained, (e) The Court will not give costs against a public officer, on quashing a conviction. (/) It seems the Court have no power to allow costs in quashing a conviction. (^'•) Where Justices have power to award costs, on a sum- mary conviction, they must specify the amount, (h) The Justices' Summary Convictions Act (N.B.) 12 Vic, c 31, gave no general power to award costs on convic- tions ; and, on convictions under this Act, they can only (aj Ren. V. Jofmson, 30 U. C. Q. B. 42.S. ChJ Hiutckc V. Adamson, 14 U. C. C. 1*. 201. See also M'Bonald v. Stuckey, \M U. C. Q. B. 577 ; 32 & .3.3 Vic. c. 31, 8. 42. (r.) Ex -parte Lindsai/, Rol). I)i^'. 73. CdJ Ex parte Leonard, (i ].. i'. R. 480. fe) Exparte APQuin,ll(A). Dig. 75. (f) Ex parte De Beaiijen, 1 1j. C. J. W. (q) Rei). V. Stevens, 3 Kerr, 3.')(i. (h) Ex parte Hartt, 3 Allen, 122. 526 CRIMINAL LAW OF CANADA. be awarded when given by the Statute creating the offence, (a) A conviction is bad, which orders imprisonment in default of immediate payment of a sum of money, when the by-law, upon which it is based, is in the alternative, imposing a fine or imprisonment. A conviction is also bad which gives costs, when the by-law upon which it is based gives no jurisdiction as to costs, {b) A judgment for too little is as bad as a judgment for too much ; and a conviction for one month instcac^ of two months is, therefore, bad. [c) An information or complaint may be amended ; but if on oath, it must be re-sworn, {d) A conviction, inflicting one penalty for two olFences, is bad. (e) Where the defendant is summarily convicted, at one time, of several offences, the .Justice has power, under 32 & 33 Yic, c. 31, s. 63, to award that the imprisonment, under one or more of the convictions, shall commence at the expiration of the sentence previously pronounced. (/) Under the 7 & 8 G-eo. 4, c. 28, the practice of the Judges was, where more than one case of felony was established against a man, and he was convicted of them at one and the same tim^, to make the sentence of im- prisonment for the two or three offences, as the case might be, commence at the expiration of the sentence first awarded, (g-) Judgment may be rendered by two Justices of the Peace, in a case heard by three, when, by the {Statute, ia) Ex parte Clifford, 3 Allen, 1(5. (6) Ex parte Marry, 14 L. 0. .1. 103. (c) Ex parte Slack, 7 L. C. J. (>. {(l) Re Conklin, 31, IJ. C. Q. B. UO. (e) Cori(jnan v. Harbour Comrn. Montreal, 5 L. C R. 479. (/) Rey. V. Cutbush, L. R. 2 Q. B. 379. ((/) lb. 382, per Cockburn, C. J. PRACTICE. 527 one Justice might have heard and determined the case, (a) It seems that, where a Statute directs Justices of a division to do a certain act, any Justice of the county may do it. So, also, where Justices in or near a place are empowered (b) Where a Statute empowers two Justices of the Peace to convict, a conviction by one only is not sufficient, (c) The 32 & 33 Vic, c. 30, defines the duties of Justices of the Peace, out of Session, in relation to persons charged with indictable offences. When a person accused of ftlony, committed in Canada, is brought up before a Justice for examination, and dis- charged by the Justice, such discharge does not operate as a bar to the same person being again brought up be- fore another Justice, and committed upon the same charge, upon the same or different evidence, (d) On charges of indictable offences, the Justice must proceed in the manner pointed out by the 32 & 33 Vic, 0. 30, s. 29, et seq. : witnesses must be examined against the defendant, as prescribed by the Statute ; for even if a party is examined before the Magistrate, yet if the prosecutor does not appear, and no witnesses are 3X- amined, the commitment will be illegal. The plaintiff was arrested upon a warrant issued by the defendant, a Magistrate, and brought before him. Defendant ex- amined the plaintiff, but took no evidence, said he could not bail, and committed the plaintiff to gaol, on a war- rant reciting that he was charged before him, on the oath of W. H., with stealing. The plaintiff did not ask to have any hearing or investigation, or produce, or offer (ffl) Ex. parte Trowk;/, 9 L. C. .T. 1(59. See Ex parte Brodeur, 2 L. C. J. 97. (h) lie/. V. Wheten, ;i Allen, 209. (r) Re Crow, 1 U. C. L. J. N. S. 302 ; 1 L. C. G. 189. (d) Raj. V. Morton, 19 U. C. C. P. 26, per Gwi/nne, J. 528 CRIMINAL LAW OF CANADA. to procure, any evidence on his behalf, or to give bail to the charge .—Held, that the commitment, without appear- ance oi." the prosecutor, or exainination of any witnesses, or of the plaintiff, according to the Statute, or any legal confession, was an act wholly without, or in excess of, the jurisdiction of the Magistrate, and illegal, (a) Where a Justice commences the examination of a party on a criminal charge, and after hearing a portion of the evidence, refuses to proceed further, the prosecutor may, nevertheless, prefer an indictment against the prisoner before a G-rand Jury, {h) Where a warrant was directed to the constable of Thorold, in the Niagara District, authorizing him to search the plaintiff's house, at the Township of Louth, in the same district, it not appearing that there was more than one person appointed to the office of constable of Thorold : — Held, that the direction to the Constable of Thorold, not naming him, to execute the warrant in the Township of Louth, was good; for, although a war- rant to a peace officer, by his name of office, gives him no authority out of the precincts of his jurisdiction, yet such authority may be expressly given on the face of the warrant, as in this case, {c) A warrant, though irregular, is a justification to the officer who executes it, because they are not to canvass the legality of the process they execute, or set up their private opinion against that of the Justice as to the good- ness of the w^arrant. (cl) The warrant of n Justice is only prima facie not con- clusive evidence of its contents ; as, for instance, a recital (a) Connors v. Darlinu, 23 U. C. Q. B. 541. \b) Reg. v. Duvaney, 1 Haiinay, 571. (c) Jones V. Ross, 3 IT. C. C^. ii. 328. \d) Ovens v. Taylor, 19 U. C. C. P. 56, per Hagarty, J. ; Fainter v. Liverpool. Gas Co. 3 A. & E. 433. PRACTICE. ')29 in the warrant that an iiiibrmation was laid prior to its issue is only prima facie evidence of that fact, (a) Justices of the Peace, actin"' judicially in a proceeding in which they have power to line and imiirison, are Judues of record, and have power to commit to prison orally, without warrant, for contempt, committed in the face of the Court, (b) Thus, if the Justice be called a " rascal, and a dirty mean dog," " a damned lousy scoundrel," a " confounded dog," etc., the Justice has a right to imprison as often as the offence is committed. A prisoner was convicted three several times on the same day for using the above opprobrious epithets to a Justice, while in the execution of his office, and detained in prison under three several warrants, all dated the same day, the periods of imprisonment in the two last commencing from the expiration of the one preceding it, but the first to be computed " from the time of his arrival and delivery (by the bailiff) hito your (the gaoler's) cus- tody thenceforward " : — Held, that the Justice had a right to convict and sentence for continuhig periods, and to make the period of imprisonment on the second and third adjudications begin at the termination of the first imprisonment ; but, as the first period of imprisonment was depending on the will of the officer who was to convey to gaol, it was, therefore, uncertain, and the other periods of imprisonment depending on the same contin- gency, were likewise uncertain, and the prisoner was, therefore, entitled to his discharge, (c) A Justice of the Peace, while sitting in discharge of his duty examining parties upon a criminal charge, has power to protect himself from insult, and to repress dis- (a) F.iel V. Feri/nson, 15 U. C C. P. 584. {b) Ai-mxtronti \. M ' Ca ffr e i/, IHnnnny, .517. {<■) Kqi. V. Si-ott, 2 U. C. L. J. X. S. 32.1 HH 530 CRIMINAL LAW OF CANADA. order, by committhijL^ lor contempt any person who shall violently or indirectly interrupt his proceedings, or con- duct himself insultin«?ly towards the Justice. "Where any person present behaves himself in such a manner as to obstruct the Justice's proceeding, he may, upon view of the improper behaviour, and without any formal pro- ceeding, order him at once into custody, and direct him to be withdrawn, so as to remove at once the obstruction to the administration of justice, or may commit him till he finds sureties to keep the peace. But he has no power, either at the time of the misconduct, much less on the next day, to make ovit a warrant to a constable, and to commit the offending- party to gaol for any certain time, by way of punishment, without adjudging him formally, after a summons, to appear for hearing to such punish- ment on account of his contempt, and a hearing of his defence, and making a minute of such sentence, {a) It has been doubted whether a Justice of the Peace, executing his duty in his own house, and not presiding in any Court, can legally punish for a contempt com- mitted there. (6) A commitment by a Justice for a contempt, if there be no recorded conviction, should shew that the party was convicted of the contempt, and stating that he is charged with it is insufficient. At any rate, the evidence should in some way shew the fact of conviction, and the manner of it. (6-) A warrant to a constable to commit for contempt, con- taining a direction to detain the party till he shall pay the costs of his apprehension and conveyance to gaol, is defective. The Statute 3 James 1, c. 10, only authorizes such ex- («) Re Clarke, 7 U. C. Q. B. 223. ' ' (6) M'Kenzif v. Mewbum, 6 U. C. Q. B. O. S. 486. (c) lb. I'KACTICE. 531 penses to bo leviod of tlio ofibnder's goods : and ii" he could bo imprisoned till ho paid thorn, it^vould he neces- sary that the amount oi" such exj)enses should be stated, or the gaoler would not know when he might discharge him. Where a power resides in any Court or Judge to com- mit lor contemi)t, it is the pecidiar privilege of such Court or Judge to determine upon the facts, and it does not properly belong to any higher tribunal to examhie into the truth of the case, (a) Therefore, the Court, in adjudicating on a case of con- tempt, will not enter into the truth of the alleged facts constituting the contempt. A Justice's warrant of commitment for an indefinite time is bad. A commitment is also bad which directs the prisoner to be kept in custody until the costs are paid, without stating what is the amount of the costs. The reason is, that, in such a case, the gaoler does not know what sum to accept as sufficient for the prisoner's release. (6) In respect lo warrants committing prisoners on charges of offences committed, it has been held not necessary to state, on the face of them, that the Justice had informa- tion on oath, which could justify him in binding the de- fendant to keep the peace, (c) A warrant of commitment must state the place where the offence was committed, otherwise it will be defec- tive, {d) It is a general rule, that, where a man is committed for any crime, either at common law, or created by Act of Parliament, for which he is punishable by indictment, (a) Re Clarke, 7 U. C. Q. E. 223. (6) Dawton v. Fraser, 7 U. (J. Q. B. 391. (c) lb. {d) Re Babe, 3 U. C. P. R. 270. 532 CIIIMINAI. I-AVV (»[' CANADA. then he is to be committed until discharGccd by due course of law. Bui where the committal is in pursuance oi'a special authority, th(! terms ol'ihe commitment must be special, and must exactly jiursue that authority, (a) It is not nec(»ssary that, in tht^ warrant of commitment, the otlence should l)e described with the nicety and teclinical precision ol' an indictment ; Imt the prisoner should be charged with some legally defined and well- known offence, lor which he would ])e subjected to cri- minal proceeding's, either by indictment or otherwise, and that specific offence cannot be included under a general term, which compendiously covers a great va- riety of criminal offences, (h) As the term I'elony includes a luimber of crnnes, rang- ing between treason and larceny, it is not sutKcient simply to designate the offence by the name of the class of oflences to which the Justice may find or judge it to belong. A commitment, in the absence of any statutory provi- sions prescribing its forms and contents, should state the facts charged to constitute the offence with sufficient particularity to enable the Court or Judge, on Habeas Corpus, to determine w^hat particular crime is charged against the prisoner ; and if it fail to do this, the prisoner ought to be discharged, (c) Defects in stating an offence in a warrant of commit- ment are not fatal, for there is not the same necessity for adherence to technical terms as in an indictment; and upon the return to a Habeas Corpus, it is the evidence which is the foundation of the warrant the Court looks at, when the evidence is before them on a Certiorari, rather than the warrant itself; and when a fegal cause (a) lie Anderson, 1] U. C. V,. 1\ 54. (6) Eey. v. Ywaif/ : The St. Alhan's Jlai'l, li, ]n'.v Badylcy, J, (c) Ih. 3, per Badijle;;, J. IMIACTICK. 5'i^ lor imprisonment iii)p('ars on tlic evidence, tho onds of juwtictvare not allowed to ho del'oatcd by a want of pro- per form in the warrant, but the Court will rather see that tlici error is corrected, (n) The Court has authority, in virtue of its inhtMcnl jurisdiction at common law, when a prisoner charutnl with I'elony is brought up on a Jlahcas Corpus, to look not merely at the commitment, but also at the deposi- tions ; and though the former bo informal, yet, if the latter shew that a felony has been committed, and that there is a reasona})le ground of charge against the pri- soner, he will be remanded, and not bailed, with a view to amending the warrant, as above mentioned, {b) It would seem that, where proceedings are taken by Habeas Corpus and Certiorari, under the 29 & 30 Vic, c. 45, the evidence may also be looked at on the return to the Certiorari, {r) This Statute had in view and recognizes the right of every man, committed on a criminal charge, to have the opinion of a Judge of the iSuperior Court on the cause of his commitment by an inferior jurisdiction. The Judges of the Superior Court are bound, when a prisoner is brought before them, under the Statute, to examine the proceedings and evidence anterior to the warrant of commitment, and to discharge the prisoner, if there does not appear sufficient cause for his detention, {d) Before section 3 of this Statute, there was no way of enquiring into the truth of the facts, as stated in the re- turn. Section 3 provides that, in all cases coming within the Act, although the return to any writ of Habeas Corpus shall be good, and sufficient in law, it shall be lawful for (a) Ke Anderson, 20 U. C. Q. B. 162, per iJoti/woft, 0. J.; Rex v. Marks, i Ea, IW. {!>) Ke Anderson, 11 IT. C. C. P. 56. fcj Reii. V. Levec(/ue, M U. C. t^. B. 509. (d) Be;' ^^ i 'H Where the defendant, a Justice of the Peace, issued his warrant, under Con. Stats. Can., c, 103, s. 67, to com- mit the plaintiff for thirty days, for non-payment of the costs of an appeal to the Quarter Sessions, unless such sum and all costs of the distress and commitment and conveying the party to gaol should be sooner paid, but omitted to state in the warrant the amount ol the costs of distress, commitment and conveyance to gaol : — Held, that it was the duty of the Justice to ascertain and state the amount of these costs ; yet the omission to do so, though it might have occasioned the plaintiff's discharge, did not shew either a want or excess of jurisdiction, but the warrant w^as irregular in omitting these particulars, and there was, consequently, an irregular exercise of jurisdiction, [b) Where an Act, passed by the Provincial Legislature, was subsequently disallowed by Her Majesty, but, while it was in force, the plaintiff had been convicted under it by the defendants, as Justices of the Peace, and directed to pay a fine, to be levied according to the Act, and, the fine not having been paid, a warrant was properly issued, by the defendants, for his arrest and imprisonment, which, however, was not executed by the oflBcer to whom it was directed, until after the disallowance of the Act was pub- lished in the Gazette, and from its publication, only, the the Act ceased : — Held, that the defendants were justified in making the conviction and issuing the warrant, and (a) Ke Ddaney v. Mamab, 21 U. C. C. P. 563. (6) Dickson v. Crabb, 24 U. C. Q. B. 494. PRACTICE. 537 could not be held liable by reason of the warrant being executed after the Act ceased, (a) -• ' v.:. i j> .<.* ^ /■ • i The warrant of commitment should shew before whom the conviction was had. It lies on the party alleging that there is a good and valid conviction to sustain the commitment to produce the conviction. (6) .t>.-.i.. ;;•. Where a prisoner is in custody of a gaoler, under several warrants, the Magistrate cannot withdraw them, or any of them, from the gaoler's hands, because they are for his protection ; but the gaoler ought to know which is the operative warrant, otherwise he may not know whether he is to discharge the prisoner from custody at the end of the time specified in one or in the other, (c) A warrant ought to set forth the da\" aadyear wherein it was made, and it is safe, but perhaps not necessary, in the body of the warrant, to shew the place where it is made, yet it seems necessary to set forth the county in the margin, at least, if it be not set forth in the body. In strictness, it is not indispensable tliat the authority of the Magistrate should be shewr on the face of the warrant, for the omission may be shewn by averment and parol evidence. A commitmr^it must be in writing, under the hand and seal of the person by whom it is made, expressing his office oi authority, and the time and place at which it is made, and must be directed to the gaoler or keeper of the prison, {d) A final commitment, for want of sureties to keep the peace, must be in writing. Where, however, a person had been brought up before a Justice, on a charge of threatened assault, and was ordered, by the Justice, to find sureties to keep the peace, he offered bail, who (a) Clapp V. Lawrason, 6 U. C. Q. B. O. S. 319. See 31 Vic. c. 1, a. 7, thirty-fifthly, sixthly, and seventhly. ib) Ee Crow, 1 U. C. L. J. N. S. 302; 1 L. C. G. 189. (c) Re McKinnon, 2 U. C. L. J. N. S. 329. id) Reg. v. Reno, 4 U. C. P. R. 292, per Draper, C. J. o38 CRIMINAL LAW OF CANADA. were rejected as not being householders, and, being thus prevented from immediately obtaining bail, he remained in custody of a police constable for three hours, during which time the Justice frequently visited him, to ascer- tain if he had found bail, and at night he was taken to the gaol, where he remained until the following morn- ing, when he was discharged on bail being procured : — Held, that this was not a final commitment for want of sureties, and that, consequently, it did not require a writ- ten warrant, for the detention was no longer than might be reasonably necessary lor ascertaining whether the party could find some one who would become his surety. (a) The time allowed for this purpose must always de- pend on the circumstances of each case, {b) • , ;, . / A commitment in default of sureties to keep the peace should shew the date on which the words vrere alleged to have been spoken, and contain a statement to the effect that complainant is apprehensive of bodily fear, {c) ;•; - When articles of the peace have been exhibited in open Court against a person, the Court will di/ect that he do stand committed until security to keep the peace be Sometimes, in cases of indictable offences, an inquisi- tion is taken by a Coroner, and the prisoner is committed for trial on the verdict of the Coroner's jury. The find- ing of a Coroner's inquest is equivalent to the finding of a Grand Jury, and a defendant may be prosecuted for murder or manslaughter upon an inquisition, which is the record of the finding of a jury sworn to enquire con- cerning the death of the deceased, super visum corporis. Such an inquisition amounts to an indictment, (e) (a) Lynden v. King, 6 U. C. Q. B. O. S. 566. (h) lb. (r) Re Ross, 3 U. C. P. R. .'Wl. (d) Reg. v. Vendctte, 8 L. C. J. 284. (e) Rey. v. Inyliam, 5 B. A, S. 257 ; 3:i L. J. (Q. B.) 183 ; Arch. Or. Pldg. 116. PRACTICE. ( ,1. 539 , An inquest held by a Coroner on a Sunday, being a judicial act, is invalid, (a) A Coroner cannot take a second inquisition on the same body, the first inquisition being valid and subsisting, (b) : - , ; , . 5 , i , , ■ : A Barrister cannot insist on being present at a Coro- ner's inquest, and upon examining and cross-examining the witnesses, (c) :.,,j . r .. ,, ; . .,, . . : ,- '_■]■, ^ ; ,1. Imprisonment is imposed for different purposes. It may be for prevention, as by a constable, to hinder a fray, or, by any person, to restrain a misdemeanor or prevent a felony, or for security, in criminal cases, before investi- gation or trial, or until sureties for the peace are given ; or in coercion, to ensure the performance of some particu- lar act, PS in cases of actual contempt, until the contempt be purged, and in cases of supposed contempt, as for not making a return of legal process, or for not paying over moneys raised by such process, by officers of the Court, until return of payment is made, and to enforce the pay- ment of pecuniary lines, or punitive, as in crimmal sen- tences, (d) Where a party, undergoing an imprisonment on con- viction of felony, has been released on bail, in conse- quence of the issue of a writ of error, and such writ of error is subsequently quashed, he may be re-imprisoned for the unexpired term of his sentence, on a warrant of a Judge of the Court of Queen's Bench, signed in Cham- bers, and granted in consequence of the Court having ordered process to issue to apprehend such party, and bring him before the Court, " or before one of the Justices thereof to be dealt with according to law." (e) The period of a man's imprisonment must be certain, (a) Ke Cooper, «! U. C. L. J. N. S. 317. (6) Reg. V. White, 7 U. C. L. J. 219; .3 E. & E. 137; 29 L. J. (Q. B.) 257. ((') Adiiew V. Stewart, 21 U. C. Q. B. ^m. (d) Arinnes v. Dandson, 4 U. C. P. R. 189, per A. Wilson, J. (e) Ex parte Spelman, 14 L. C. J. 281. 540 CRIMINAL LAW OF CANADA. and not dependent on the will of the officer, who is char- ged with the imprisonment. Every judicial act is sup- posed to happen the first instant of the day it takes place. The imprisonment of a person, therefore, is deemed to commence at the beginning- of the day, on which he was adjudged to be imprisoned, and he will be entitled to his discharge, not at the same hour of the day he was brought to prison, but on the first opening of the prison, on the day after his imprisonment expired, (a) An adjudication mentioned in the margin of the war- rant of commitment, where there are several warrants each for a distinct period of imprisonment, that the term of imprisonment mentioned in the second, and third warrants shall commence at the expiration of the time mentioned in the warrant immediately preceding is valid. An adjudication, so stated in the margin, properly forms a part of the warrant, and , even if the portions in the margin of the second, and third warrants could not be read as parts of these warrants, the periods of imprison- ment would nevertheless be quite sufficient, the only dif- ference being that all the warrants would be running at the same time, instead of counting consecutively. (6) A w^itness, who, on the usual application, has been or- dered to withdraw from the Court Room, is guilty of con- tempt, if after his examination he communicates facts dis- closed in evidence at the trial, to another witness not examined at the time of the disclosure, (c) In this case, the rule for attachment was discharged, the defen- dant swearing, in answer, that he did not enter the Court Room during the trial, till called as a witness, that he communicated the fact without any intention of in- (a) Reg. v. Scott, 2 U. C. L. J. N. S. 324, per J. Wilson, J. (h) Re Crow, 1 U. C. L. J. N. S. 302; 1 L. C. G. 189. See 32 & ;?3 Vic, c. 31, 8. 63. (c) Reg. V. M'CarkiU, 8 L. C. J. 282. PllACTK'E. , 541 liuenciiig the evidence to be given by the witness, or of committing a contempt of Court, and in utter ignor- ance of there being any impropriety in so doing. The af- fidavit, further, stated that the deponent was wholly unconscious of the possibility of his conduct being consi- dered a contempt. An attachment will not be granted against a witness, for not obeying a subpoena, unless there is a clear case of contempt, but, if his absence is wilful, the Court will not, in general, look to the materiality of his testimony, (a) A subpcena, to attend on the 10th September, and so from day to day, was served on the 11th September, and the witness attended for several days, ;ind knew that the cause was not tried : — Held, that he was guilty ol a con- tempt in subsequently absenting himself. Where a wit- ness accepted the conduct money, and went with the person who served him wnth the subpcena, and remained at the Court several days, an attachment was granted against him, for subsequently absenting himself, though he and another person swore in contradiction to the party, who, served the subpcena that the original was not shewn to him, and he also swore that he attended the Court as a Juror, and left in consequence of ill health with the intention of returning, his absence appearing to be wilful, (b) ;•■ , ... ,. Where a party is served with a subpcena to attend as a witness, and accepts a sum of money which is tendered to him for his expenses, without objecting to the amount, but refuses to attend on account of his own business, he is liable to an attachment for the non-attendance, even thouijh the sum tendered be less than he is entitled to receive, (c) (a) Mdoney v. Mon'ison, 1 Allen, 240. (bj Johnson v. WilUston, 2 Allen, 171. (cj Gilhert v. Campbell, 1 Hannay, 258. 542 CRIMINAL LAW OF CANADA. But, if he had objected to the sum when tendered, it would have been an answer to the application, (a) It is not necessary to shew that the witness was called on his subpoena, if it is shewn by other satisfactory evi- dence that he did not ttttend. (6) An attempt, by a third person to prevent a suitor from laying his case before the Court, by threats of bringing- him into disgrace and disrepute, is a contempt of Court and subjects the offender to a heavy fine, (c) A frivolous opposition, made to retard a judicial sale, is a contempt of Court, (d) An advocate who publishes in a public newspaper letters containing libellous, insulting and contemptuous statements, and language concerning one of the Justices of the Court, in reference to the conduct of said Justice, while acting in his judicial capacity, on an application made to him in Chambers for a writ of Habea s Corpus is guilty of contempt, (e) ''■' In this case, it was held in the Privy Council, reversing the judgment of the Court of Queen's Bench for Quebec, (Crown side) that a Judge of the Court of Queen's Bench, in Quebec, whilst sitting alone, in the exercise of the cri- minal jurisdiction conferred upon him by Con. Stats. L. C. c. 77, s. 72, has no power to pronounce su^h advo- cate in contempt for conduct of the above description, or to impose a fine, and that the proceedings for such con- tempt could only be legally, and properly, taken in the full Court of Queen's Bench. (/) An order was made for the delivery of infant children by the father to the mother. On an application to com- (a) Oilbert v. Campbell, 1 Hannay, 258. (b) Meloney v. Morrison, 1 Allen, 240. (c) Re Mulock, 13 W. R. 278 ; 1 L. C. G. 25. (d) Thomat v. Pepin, 5 L. C. J. 76. (e) Beg. v. Mamsay, U L. C. J. 152 ; S. C, L. R. 3 P. C. App. 427. (/) lb. ' ^ PRACTICE. • 548 mit the father for a contempt, in not obeying this order, it appeared that, in his absence from home, the children had been removed from his house, and taken to the United States by his son aged fifteen. They denied collusion, the son saying that he acted without his father's know- ledge or consent, but the father took no steps to bring the children back, and did not offer to do so, if time were given him. To a demand made for the children, the father replied that they were not in his custody : — Held, that he was not excused from obeying the order, and was in contempt, (a) • ■ • • ' . ■: i/:( • * . i iff-; Affidavits disingenuously drawn up, with a view of pre- senting inferences, and giving colour to the transactions, to which they refer, inconsistent with the whole truth, even through true as far as they go, should be read with suspicion and carry but little weight. (6) .> . «; ' A contempt of Court being a criminal offence, no per- son can be punished for such, unless the specific offence charged against him bo distinctly stated, and an opportu- nity given him of answering, (c) * To contempts of Court committed by an indi\'idual, in his personal character only, there has been attached by law, and by long practice, a definite kind of punishment by fine and imprisonment, (d) An order suspending an attorney, and barrister of the Supreme Court of Nova Scotia, from practising in that ' Court, for having addressed a letter to the Chief Justice ' reflecting on the Judges and the administra-ion of jus- tice generally in the Court, was discharged by the Judicial Committee of the Privy Council, as it substituted a pen- alty and mode of punishment, which was not the appro- la) Reg. V. AUen, 5 IT. C. P. R. 453. (h\ lb. \c) Re Pollard, L. R. 2 P. C. App. 106. \d) Re Wallace, L. R. 1 P. C. App. 295, per Ld. Westhury. 544 CRIMINAL LAW OF CANADA. priate and fitting punishment lor the offence. The letter, though, a contempt of Court and punishable by fine and imprisonment, having been written by a practitioner, in his individual and private capacity as a suitor, hi respect of a supposed grievance as a suitor, of an injury done to him as such suitor, -md having no connection, whatever, with his professional character, or anything done by him professionally, either as an attorney or bjirristcr, it was not competent for the Supreme Court, to go further than award to the ofi'ence, the customary punishment for con- tempt of Court, or to inflict a professional punishment of indefinite suspension for an act not done professionally, and which, per se, did not render the party committing it unfit to remain a practitioner of the Court, {a) The power to punish for contempt is inherent in all Courts, and is a necessary condition of their exis- tence. In Canada, this power is not confined to con- tempt in the face of the Court, or to pending cases, or to resistance to process ; but it extends to the punishment of all contemptuous publications, calumniating or mis- representing its judicial opinions as a Court, or the opi- nion or order of any Judge of the Court, pronounced or made either in term, or in vacation, whether in Cham- bers, or at his own residence, or in any other place, where, within the jurisdiction of the Court, he may be called upon to perform any judicial duty, and to all publications tending to cast ridicule or odium upon the Court, or any of its Judges, in reference to their judicial acts, or to impair the respect and confidence of the public, in the purity and integrity of the tribunal, or any of its members, {p) An attachment against a Sheriff, for not obeying a rule (rt) Re Wallace, L. R. 1 P. C. App. 283 ; 1 Oldright, G54. (6) Rei;. v. Ramsay, 11 L. C. J. 158. PRAdTICK. 545 to bring in the body, cannot be granted in vacation by a sing-le Judge at Chambere. {a) Where an attorney of this Court, practising in an in- ferior Court has charged, and the Judge has allowed, costs clearly not sanctioned by law, this Court will punish by line and attachment. (6) Any Court of Record has power to fine and imprison for contempts, committed in the face of the Court, (c) It seems the commitment may be made sedente curia, by oral command without any warrant made at the time. This proceeds on the ground that there is, in contempla- tion of law, a record of such commitment, which may be drawn up when necessary, (d) The 32 & 33 Vic, c. 81, s. 65. et seq, as amended by the 33 Vic, c, 27, provides for appeals in cases of summary convictions. The Con. Stats. U. C. c 114, giving an appeal to the Sessions, on conviction of a person in any matter cogniz- able by a Justice of the Peace, not being a crime, seems to be still in force. The Act only applies to a matter "not being a crime." (e) ' ,/;!>' )i;*.;i; The first Statute would seem to regulate appeals from any of the criminal Statutes of Canada. Under the latter, notice of appeal must be given within four days, after the making of the order or conviction complained against, and eight days before the first Court of General Sessions of the Peace, to be held not sooner than twelve days next, after the order decision or conviction. An appeal, under the former Statutes is subject to the following conditions. If the conviction or order he made more than twelve (o) ilea! V. Sker^, Niagara, Draper, 343. (b) Bex V. Whitehead, Taylor, 476. (c) Armttrong v. M'Caffrey, 1 Hannay, 517. (d) Ovens v. Tuj/lw, 19 U. C. C. P. 53, per Hagarty, J. (e; Re Meyers. 23 U. C. Q. B. 613, per Draper, J. ; Butt v. Conant, 1 B. 4; B. 574. U 540 CRIMINAL LAW OF CANADA. days, before the sittings of the Court, to which the appeal is given, such appeal shall be made to the then next sit- tings of such Court ; but, if the conviction or order, be made within twelve days of the sittings of such Court, then to the second sittings, next after such conviction or order. The person aggrieved shall give to the prosecu- tor, or complainant or to the convicting Justice, or one of the convicting Justices for him, a notice in writing of such appeal, within four days after such conviction or order, and the person appealing shall either remain in custody, or give security or in certain cases deposit money as security. The words, within four days after conviction, exclude the day of conviction, {a) The person, appealmg from a summary conviction by a Justice, must comply with all the conditions, imposed upon him by the Statute, under which he appeals. He must not only give notice within the proper time, but he must also either remain in custody, or enter into the proper recognizance, (b) Where, in the recognizance, the appellant, instead of being bound to appear, and try the appeal, etc., as required by the Act, was bound to appear at the Sessions, to answer any charge that might be made against him, the appeal was dismissed. An application, to take the appellant's recognizance in Court, was refused on the ground that, although the recognizance need not be entered into within four days, it must be entered into, and filed before the sittings of the Court of Quar'or Ses- sions, to which the appeal is made, (c) It was held, under the former Statutes, that the form of recognizance to try an appeal, given in the schedule to the Con. Stats. Can. c. 103, p. 1130, was sufficient though (o) Scott V. Dickson, 1 U. C. P. R. 366. (6) Kent v. Olds, 7 U, C. L. J. 21. (c; Jh. PRACTICE. 547 the condition differed in Ibrm from that proAaded tor by c. 99, s. 117. (a) . . . ^ , Before an appeal can be entertained, it is clearly in- cumbent on the appellant i.o shew his right to appeal, by proving compliance with the 33 Vic, c. 27, s. 1, ss. 3, by having remained in custody, or entered into a recognizance . This is a substantial, not a mere technical, objection to the appeal, and is not waived by the respondent asking for a postponement, after the appellant has proved his notice of appeal on the first day of the Court, (b) r v ,{;; A notice of appeal following the form given in the Con. Stats. Can. c. 103, p. 1130, and stating " that the for- mal conviction drawn up and returned to the Sessions, is not sufficient to support the conviction, etc." is suffi- ciently particular to allow all objections being raised, which are apparent on the face of the conviction or order, {c) It appears to be the established practice for the Ses- sions to hear appeals on the first day, but there is no law compelling them to do so. {d) One D. M., having been on the 27th of August, 1862, convicted before Justices of the Peace, " for allowing card-playing at his inn, and other disorderly conduct during this year" was fined $20 and costs. On judg- ment being pronounced, he remarked that he would pay the fine, etc., but he " would see further about it. " On the 30th of August, notice of appeal was given to the prosecutor, and to one of the convicting Justices, and, on the 11th ol September, the appeal came on at the Quarter Sessions, when the Court decided that the right to ap- peal was waived and lost by reason of the plaintiff, (a) Re Wilson, 23 U. C. Q. B. 301. {b) Re Meyet'n, 23 U. C. Q. B. 611. (c) Helps and Eno, 9 U. C. L. J. 302. (d) Re Meyers, 23 U. C. Q. B. 614, per Draper, C. J. 548 CRIMINAL LAW OF CANADA. having paid the fine and costs. The Court, under these facts held that there was no waiver of the right to ap- peal, that the statement of the defendant was capable of meaning that he meant to use any remedy that was by law, open to him whether by appeal or otherwise, and as the Act respecting appeals does not require notice of appeal to the conA^cting Justice, nor provide for a stay of the levy, it might be reasonably inferred that he paid the fine and costs, to prevent the distress and sale, which might have taken place, although he had at the moment of conviction, given the most formal notice of appeal, (a) The Court should rather lean to the hearing of appeals than to dismissing them on technical grounds, (h) An appeal from a conviction for selling liquor without license, contrary to the (Ont.) 32 Vic, c. 32, must be tried bv the chairman oi the Greneral Sessions without a jury. (6) It has been held that, on appeals from summary con- victions, under Con. Stats CaiL, c. 91, s. 37, to the Court of General Sessions of the Peace, the appellant could not, of right, demand that a jury be empanelled to try the ap- peal, and that it was discretionary with the Court, under c. 99, ss. 117 and 119, to try the appeal or to grant a jury, {(l) A trial by jury was warranted by the 13 & 14 Vic, c. 54. (e) It would appear that, as the law now stands, it is dis- cretionary with the Court to grant a jury at the request of either appellant or respondent. But, if a jury be not so demanded, it is imperative on the Court to try the ap- peal, and they shall be the absolute Judges, as well of {a) lie Justices, York, 13 U. C. C. P. 159. (6) lb. 162, per Draper, C. J. ; Rex v. Justices, Norfolk; 5 B. & A. 1)92. (c) See B. ;36; Ite Jirown, 8 C. L. J. N. S. 81. (d) Qikheii and Eaton, 13 L. C. R. 471 ; 10 U. (\ L. J. 81. (c) Hespeler and Shaw, 16 U. C, Q. B. 104. PRACTICE. . 549 the fact as of the law, in respect to the conv^iction or de- cision appealed from, (a) ,.J , , ; , .,. ,:r (' ,;>. ),! When the appeal is under the Con. Stats. U. C, c. 114, the Court may, at the request of either party, empannel a jury. (6) ..,| :^ , ,,.,,,..,.,,,.,,, ,..;., .,,;,,-:i .,„■ J. „: The Court of Quarter Sessions has power to adjourn the hearing of a part-heard appeal to a subsequent Ses- sions. (6") The 33 Vic, c. 27, s. 1, ss. 3, declares that the Court shall have power, if necessary, from time to time, by order en- dorsed on the conviction or order to adjourn the hearing of the appeal from one sittings to another or others of the said Court. An adjournment of the sessions is a continu- ance of the same sessions or sittings, (t/) It would seem, however, that no recent Statute confers power to adjourn the hearing of an appeal, under the Con. Stats. U. C, c. 114 Under this Statute there is no power of adjournment, and the appeal must be heard at the Court of Quarter Sessions appealed to, for the Act pro- vides that the Court shall, at such sessions, hear and de- termine the matter of such appeal, (e) Where, therefore> such Court, after proof of entry and notice of the appeal, adjourned the further hearing, by order, until the next sittings, and then made an order quashing the conviction, the orders were quashed. (X) So it is quite clear from the language of this Statute, that the costs of an appeal from a Justice's conviction, as well as the appeal itself, must be determined at the sessions appealed to. (g) An appeal, dismissed for want of pr- secution, may, at (a) See .S2 & 33 Vic, c. 31. r. 66. See also 33 Vic, c. 27, s. 1 ss. 3. (b) See s. 3. (c) Beg. V. Guardians, Cam. Union, 7 JJ. 0. L. J. .331. (d) Rawnsley v. Hutchinson, L. R. Q. B. 305. (e) Re McCumbcr, 20 U. C. Q. B. 516, following Rey. v. Belton, 11 Q. B. 379. (/) 76. (r/) Reg. V. Murray, 27 U. C. Q. B. IIM. 550 CRIMINAL LAW OF CANADA. the instance of the appellant, and satisfactorily account- ing for his non-appearance, be reinstated, (a) ' i " ' ' The 4 Wm. 4, c. 4. ss. 17 and 18, were, in substance, the same as the Con Stats. U. C, c. 114. On an appeal to the Sessions, under the 4 Wm. 4, c 4, evidence, differ- ing from, or additional to, that produced before the con- victing Justice, might have been received and gone to the jury, although the general principle of appeals is, that a judgment is to be rendered upon the same facts that were before the inferior tribunal. It was held to be the intention of the Legislature, in passing the above Statute, to allow an open trial, by a jury, upon such evidence as might be adduced there, (ft) - ,, > The 32 k 33 Vic, c. 31, s. 66, now provides that no witnesses shall be examined who were not examined be- fore the Justice, on the hearing of the case, and this whether the appeal is tried by the Court or a jury. The Con. Stats. U. C. c. 114, contains no analogous prrmsion. When a prisoner hadbeeii! convicted before Justices of the Peace, under the Petty Trespass Act, and fined, and on appeal to the Quarter Sessions, the Justices there ad- mitted more evidence than had been heard on the con- viction, and this fresh evidence adduced, evidently, influ- enced the verdict of the jury at the Sessions, and the accused was acquitted ; but, on receiving the opinion of the Attorney-General that the additional evidence should not have been admitted, they confirmed the conviction and ordered it to be recorded, but took no notice of the acquittal. The Court made absolute a rule for a manda- Tnus, compelling them to enter the acquittal, (c) Where a rule nisi, for a mandamvs to the Sessions, commanding them to hear an appeal, called upon the (a) Re Smith, 10 U. C. L. J. 20. (b) ^.-x V. Jmticesof Buthiirst, .T U. ('. Q. B. (). S. 74. (c^ -jx v. JuMireg, Bathunt, 4 U. V. Q. B. (). S. :i40. PRACTICE. ' ■ 551 Court of Quarter Sessions, in and for the United Counties, etc., instead of the Justices of the Peace for the United Counties, and the rule had been enlarged in the prior term. On objection to the rule, on the above ground, it was replied that the enlargement waived the objection, and this seems to have been acquiesced in by counsel and by the Court, (a) In fact, it seems that, in all cases, formal and technical objections are waived by an en- largement, {h) "•' *'•■'■■ ^•-■•■";--^'. *^'^ -^■■•■--Mr^' .'-.^ :■ ■ * The appellant having been convicted of an assault, under the Con. f^tats. Can., c. 91, s. 37, appealed to the Quarter Sessions. On the first day of the Court, after he had proved his notice of appeal, at the respondent's re- quest, the case was postponed until the following day, and the respondent then objected to the jurisdiction, as it was not shewn that the appellant had either remained in custody, or entered into a recognizance, as required by Con. Stats. Can., c. 99, s. 117. The Court held that this objection was not waived by the application to post- pone, ^c^ "-■.'-■■•■• :•: .r.--. _;-,..,•, .. -v.ir ..•.,, j., 1 : V^ . i i.l'- ).• f"'' 'VJJ -, 5 ^, For the purj:»ose of preventing frivolous appeals, the 32 & 33 Vic, c. 31, s. 69, enables the Court of Sessions, on proof of the giving of notice of appeal, though such ap- peal was not afterwards prosecuted or entered, if it has not been abandoned according to law, to order the pay- ment of reasonable costs, by the party giving the notice. There is nothing in the Con. Stats. U. C, c. 114, to au- thorize an order that a defendant, who has appealed and been acquitted by a jury, upon his trial, shall pay the costs of the appeal and trial, or any portion of them. "Where the Court of Quarter Sessions ordered a party to pay certain costs of an appeal, and, they not being paid, (a) Re Justices, York, 13 U. C. C. P. 159. (6) Reg. v. Allen, 5 U. C. P. R. 4M-8. (r) Re Meyers, 23 U. C. Q. B. 611. 552 CKIMINAL LAW OF CANADA. an indictment was preferred for non-payment thereof, and, on this indictment, the defendant wa? found guilty; — Held^ that the indictment could not be supported, either at common law or under the Statute, (a) ^ The Court will not give costs, on adjourning an ap- peal, unless the objection is made at the time of the ad- journment, (h) Under the English Act, 20 & 21 Vic, c. 43, the Court will not entertain an application for costs of an appeal against a decision of a Justice, in the term after that in which judgment is pronounced, (c) It seems doubtful whether, under the 32 & 33 Vic, c. 31, s. 74, an order of Sessions, simply ordering costs of an appeal to be paid, without directing them to be paid to the Clerk of the Peace, as required by the Act, is regu- lar, (d) Where a rule for amendment is opposed, the costs must be paid by the successful party, (e) Where one of the Justices, before whom a person was convicted for breach of the license laws, stated that all the papers necessary to perfecting the appeal, were filed, except the bond telling the party it was all right, the Court allowed the appeal, though no affidavit had been filed. (/) Under the Rev. Stat., c 95, an appeal under the River Fisheries Act, must be made to the Sessions, {g) The 32 & 33 Vic, c. 30, s. 41, empowers the Justice be- fore whom a prisoner is charged with an indictable ojQfence, to remand, from time to time, for such period as (a) Reg. v. Orr, 12 U. C. Q. B. 57. (6) Ee M'Gumber, 26 U. 0. Q. B. 616. (c) Budenhery and Roberts, L. R. 2 C. P. 292. Id) Ee Delaney v. Macnab, 21 U. C. C. P. 563. le) M'Kay v. M'Kay, 2 Thomson, 75. (/) M'Kay v. M'Kay, 2 .ihomson, 75. (g) Gough v. Morton, 2 Thomson, 10. PRACTICE. , - , , " ^' 553 may be reasonable, not exceeding eight clear days at any one time. S. 42 authorizes a verbal remand where the time does not exceed three clear days. • ^ A remand for an unreasonable time would be void, {a) It seems doubtful whether a Judge sitting in Cham- bers has power, on an application of a prisoner for his discharge on a bad warrant, to remand him. (6) . , On discharging a jury charged with a prisoner, because they are unable to agree, the Court has power, and it is the duty of the Judge, to remand the prisoner to gaol until delivered in due course of law, or to the next ses- sions of the Court, fixing or not fixing the day, as the case may be. {c) ,, ^.f^ ^,,„^ ,(,,^,,.,:^;-v-,. ,„.■? .,:..•:;..,•.- -on^ ; When prisoners are remanded to prison, after the dis- agreement of the jury on the trial, they are detained, not upon the indictment, which is only the accusation and charge found tor their trial, but upon the original com- mitment for the offence originally charged, {d) j ,, . , , It would seem that the Con. Stats. U. C, c. 112, as to the reservation of points of law in criminal cases, only confers on the Sessions authority to state a case for the opinion of the Superior Court, where the original hearing and conviction is, at the Sessions, and that, when a sum- mary conviction is appealed to the Sessions, there is no power to reserve a case on such appeal, (e) The appellant, having been convicted before Justices of having pretended to be a physician, contrary to 29 Vic, c. 34, s. 34, appealed to the Quarter Sessions and was found guilty. The chairman having reserved cer- tain questions for the opinion of the Court, it was held that the Sessions had no power to reserve a case for the (a) Connors v. Darling, 23 U. C. Q. B. 547-51, per Hagarty, J. (61 Ke Carmichael, 10 U. C. L. J. 325. (c) Ex parte Blossom, 10 L. C. J. 32, per Monk, J. (d) Ih. 41, per Badgley, J. (e) Pomtroy and Wilson, 26 U. C. Q. B. 45. i 554 ■" CRIMINAL LAW OF CANADA. opinion of the Court, under the Statute, for the appellant was not a person " convicted of treason, felony, or misde- meanor," withm the Statute, nor would the case fall within ss. 3 or 4 of the Statute, (a) Prior to the passing of the 20 Vic, c. 61, Con Stats. U. C, c. 113, it was doubtful whether, after the affirmance of a conviction by the Sessions, a further appeal lay to either of the Superior Courts of common law. (b) The 20 Vic, c 61, has been repealed, (c) and it would seem that the law now stands as before the passing of this Statute. The Court would not hear an appeal under this Sta- tute, unless its provisions, and the rules of Court pre- scribing the preliminary steps, were strictly compUed with, (d) In this case, the rule or order appealed from was made before Hilary Term, 1865. The case was not transmitted to the Superior Court, pursuant to s. 2, on or before the first day of the term next after the making of the rule or order appealed from. Second, the notice required by the first rule of Court, dated 13th February, 1858, was not transmitted with the papers. Third, the third rule was not complied with, as the papers sent to the Supe- rior Court shewed that, on a motion for a new trial, the defendants were to appear on the 27th December, and were bailed to appear for sentence ; but it was not shewn whether they appeared for sentence, or werci sentenced, or were in prison, or discharged on bail, to appear and receive judgment. Fourth, nor was the fourth rule ob- served, as the papers therein referred to were not deli- {a\ Pomeroy and WiUon, 26 U. C. Q. B. 45 ; See also Yearke v. Bingleman, 28 U. C. Q. B. 551. (6) Jteff. V. Watson, 7 U. C. C. P. 495 ; Victoria P. R. Co. v. Simmons, 15 U. C. Q. B. 303; JJff/. v. Hvssey, 2 U. C. P. E. 194. (c) See 32 & 33 Vic, c. 36, Sched. B. (d) Reff. V. Hatch, IJ U. C. C. P. 461. PRACTICE. m 655 vered to the Clerk of this Court, until after the first day of the sitting of the Cou^^ in Easter Term, 1865. For these reasons, the Court declined to hear the appeal. The Judge of the Sessions of the Peace, being vested with all the powers of two Justices of the Peace, by c, 102, s. 1, and c. 103, s. 82, of the Con. Stats. Can., and by c. 102, s. 3, of the Con. Stats, of Lower Canada, no appeal lies from a conviction rendered by him under Con. Stat. L. C, c. 6.(«) ^ The 29 & 30 Vic, c. 45, was passed to extend the re- medy, by Habeas Corpus, and enforce obedience there- unto, and prevent delays in the execution thereof. In doubtful cases, the Court always inclines in favour of liberty. (6) It, therefore, is the duty of a Judge hearing an application for discharge, under a w^rit of Habeas Cor- pus, when a prisoner is restrained of his liberty, under a Statute, to discharge him, unless satisfied, by unequivocal words in the Statute, that the imprisonment is warranted by the Statute, (c) It is also the duty of the Judge, when doubting the sufficiency of the warrant of commitment, to discharge the prisoner, (d) It would seem that a Judge, in Chambers^, has, at com- mon law, power to issue writs of Habeas Corpus, in cases not within the 31 Car. 2, c. 2. (c) But it seems doubtful whether a Judge, in Chambers, has power to rescind his own order for a writ of Habeas Corpus, or to quash the writ itself, on the ground that it issued improvidently ; or to call upon the prosecutor or Justice to shew cause why a writ of Habeas Corpus should not issue, instead of at once ordering the issue of the writ, {f) (a) Ex parte Slack; 7 L. C. J. 6. (b) Reg. v. BoyJe. 4 U. C. P. R. 2fi4, per M&rrisor), J. fcj Re Slattr, !) U. C. L. J. 21. (dj Re Beel'. 3 U. C. P. R. 270. (ej Re lU'A'fnvm, 2 U. C. L. J. N. S. 327, per^. Wi/mn, J. (f) Re Ro8», 3 ir. C. P. R, 301. r>5G CRIMINAL LAW OF CANADA. A Judge, sitting in Banc during term, in the Practice Court, has no authority, under Con. IStats. U. C, c. 10, s. 9, to grant a rule nisi for a writ oi" Habeas Corpus ad subjiciendum ; for, until the rule is moved, there is no cause or business depending, in relation to the prisoner's conviction or commitment. Where such rule had been issued there, returnable in full Court, it was discharged on this preliminary objection, (a) At common law, the Judges of the tSuperior Courts of common law for Ontario have power to direct the issue of writs of Habeas Corpus ad subjiciendum, in vacation, returnable either in term or vacation, (b) The 29 & 30 Vic, c. 45, s. 1, confers full authority on any of the Judges of either of the Superior Courts of law or equity in Ontario to award, in vacation time, a writ of Habeas Corpus ad subjiciendum, under the Seal of the Court wherein the application shall be made. ., . r, "Where the proper remedy is by writ of error, a Habeas Corpus will not be grauied. (c) ,, .,,i,.^ , -j , ; A writ of Habeas Corpus has been refused in the case of a person conlined in gaol, under civil process, such as a capias ad respondendum, (d) As the Imp. Stat. 56 Geo. 3, c. 100, is not in force in this country, it is, at least, doubtful whether a Judge, in Chambers, has power to order the issue of a writ of Habeas Corpus, where the custody is not for criminal or supposed criminal matter. And where, upon the return of a writ of Habeas Corpus, it appeared that the prisoner was in custody, under a writ of capias, issued out of a County Court, and regular on its face, but which, it was contended, had been improperly issued, on defective (a J Reg. v. Smith, 24 U, C. Q. B. 480. (b) Re Hawkins. 3 U. C. P. R. 239. (c) Re M-Kinnon, 2 U. C. L. J. N. S. 327. (d) Barber v. O'Hara, 8 L. C. R. 216. PRACTICE. ' 557 materials, a Judge, sitting in Chambers, refused to dis- charge the prisoner, (a) The 29 & 30 Vic, c, 45, expressly excepts persons im- prisoned for debt, or by process in any civil suit. It would seem, therefore, that the writ cannot now be obtained in the case of a person confined under a capias eul resftondendum, in a civil suit. A Habeas Corpus will not be granted to bring up a pri- soner under sentence of conviction at the Sessions for larceny, (ft) A Judge has no jurisdiction, on a writ of Habeas Corpus, to liberate a person found guilty of simple larceny, and sentenced to be imprisoned in the Penitentiary for life, although it may appear that the sentence is illegal. The Judge to whom an application for such writ is made, having no jurisdiction to reverse the sentence, must ab- stain from giving an opinion upon the legality or illega- lity of such sentence, (c) The mere fact of the warrant of commitment having been countersigned, under the 31 Vic, c. 16, s. 1, by the Clerk of the Privy Council, does not withdraw the case from the jurisdiction of a Judge, on a Habeas Corpus, (d) At common law, a writ of Habeas Corpus, ad testifican- dum, may be issued to the Warden of the Provincial Penitentiary, to bring a convict for life before a Court of Oyer and Terminer, and general gaol delivery, to give testimony, on behalf of the Crown, in a case of murder. The writ may be granted before the sittings of the Court commence, (e) Under the 4 & 5 Vic, c 24, s. 11, a Court of Oyer and (a) Re Bigger, 10 U. C. L. J. 329 ; Re Hawkins, 9 U. C L. J. 298, doubted. See, however, Re Runciman v. Armstrong, 2 U. C. L. J. N. S. 165. (b) Reg. V. Crabbe, 11 U. C. Q. B. 447. (c) Ex parte Plante, 6 L. C. R. 106. \d) Reg. v. Boyle, 4 U. C. P. R. 256. (e) Reg. v. Tmmsend, 3 U. C. L. J. 184. 5.58 CHIMINAI, LAW OF CANADA. Terminer could, while sitting, make an order to any gaol or prison out cf the county where the Court was sitting, to bring up a prisoner, in order to give evidence at the trial. But under this [Statute, no order could be made until the opening oi'the Court, (a) , , Now, the 32 & 33 Vic, c. 29, s. 60, provides that an order may be made on the Warden of the Penitentiary to deliver the prisoner to the person named in such order to receive him, and the latter shall convey the prisoner to the place of trial, to obey such further order as to the Court may seem meet. , Where an offender, for whose arrest a Magistrate's warrant is issued, lives in a comity diffierent from that where the warrant issued, and the warrant is backed to take him in the county where he resides, and it is there found that he is a prisoner for debt, in close custody, in such county, he may be removed, under a writ o^ Habeas Corpus ad subjiciendum, {b) A prisoner is not entitled to a Habeas Corpus, under the 31 Car. 2, c. 2, unless there be a " request, in writ- ing, by him, or any one on his behalf, attested and sub- scribed by two witnesses, who were present at the deli- very of the same." (c) As a general rule, the affidavit on which an order for a writ of Habeas Corpus is moved should be made by the prisoner himself, or some reason, such as coercion, shewn for his not making it. The affidavit should be entitled, in one or other of the Superior Courts, though it is discretionary with the Judge to w^hom the application is made, to receive an affidavit of a different kind, or one not sworn by the prisoner himself {d) [a) Reg. v. Tmmsend, .3 U. C. L. J. 184. 6) Reg. v. Phipps, 4 U- C. L. J. 160. c) Re Carmichael, 1 U. C. L. J. N. S. 243. d) Re Ro»», 3 U. C. P. R. 301 ; 10 U. C. L. J. 133. PRACTTCE. ,.,,, ^ , 5/59 It is sulficieiit to return to a writ of Haheas Corpus a copy of the warrant under which the prisoner is detained, and not the original, {a) But the authority of this case has been doubted, and seems very questionable. It has been subsequently held that the person to whom a writ of Habeas ( orpus is directed, commanding him to return " the cause of taking and detainer," must return the original, and not merely a copy of the warrant. (6) "Where a prisoner is brought up upon a writ of Habeas Corpus, and. the return shews a commitment bad upon the face of it, the Court will not, on the suggestion that the conviction is good, adjourn the case, for the purpose of having the conviction brought up, and amending the commitment by it. (c) -i "Where a prisoner is, under a writ of Habeas Corpus, discharged from close custody, on the ground that the warrant of commitment charges no offence, he is not, under 31 Car., 2, c. 2, s. 6, entitled to his discharge, as against a subsequent warrant, correctly stating the offence, upon the alleged ground that the second is " for the same offence " as the first arrest, (d) , ,,, The Court refused to discharge a prisoner brought up on Habeas Corpus, charged with having murdered his wife in Ireland ; communication having been made by the Provincial to the Home Government on the subject, and no answer received, and the prisoner having been in custody less than a year, (e) The object of the 31 Vic, c. 16, was to suspend the operation of the writ of Habeas Corjms, and to deprive the subject restrained of his liberty. (/) (a) Re Ross, 3 U. C. P. R. 301 ; 10 U. C. L. J. 133. 6) Re Cai-michael, 10 U. C. L. J. 325. (c) Re Timsan, L. R. 5. Ex. 257. Id) Re John Carmichael, 1 U. C. L. J. N. S. 243. (e) Rex V. Fitzgerald, 3 U. C. Q. B. O. S. 300. (/) Re Bople, 4 U- C. P. R. 261, per Morrison, J. 560 CRIMINAL LAW OF CANADA. Although Justices of the Peace, exercising summary jurisdiction, are the sole Judges of the weight of evidence given before them, and no other of the Queen's Courts will examine whether they have formed the right con- clusion from it or not ; yet other Courts may, and ought to, examine whether the premises stated by the Justices are such as will warrant their conclusion, in point of law. (a) "When a matter is within the jurisdiction of Justices, and their proceedings are regular and according to law, the Court will not interfere with their decision, though it should be wrong or unjust, but the Court will enquire whether the case was within their jurisdiction or not. Thus, where the nature of the charge is doubtful, and, in the course of the enquiry, it turns out that the case is not one over which they have jurisdiction, the Superior Court may, on Habeas Corpus, examine the evidence and entertain the question of jurisdiction. (6) Where a fact is to be proved which is the very essence of the enquiry, and there is evidence before the Justices on the one side and the other, the Court will not, although they may think that, upon the evidence, the Justices have come to a wrong conclusion, review their decision. In all cases in which Justices have to decide a colla- teral matter, before they have jurisdiction, and they give themselves jurisdiction by finding facts which they are not warranted in finding, the Court will review their de- cision, and, if they have improperly given themselves jurisdiction, will set aside the proceedings ; but, where the question is a material element, in the consideration of the matter, they have to determine, and they, exercising their judgment as Judges of the fact, have decided it, on a (o) The Scotia S. V. A. R. 160. (6) Re M'Kinnon, 2 U. C. L. J. N. S. 327-8, per A. WiUon, J. PRACTICE. 561 conflict of evidence, it is contrary to principle and prac- tice to interfere, (a) The Court of Queen's Bench cannot review the de- cision of an inferior tribunal, on a matter within its jurisdiction, and on w^hich it has heard evidence and arrived at a conclusion. Where a charge was preferred to a Court of Quarter Sessions, under 1 Wm. k M., c. 21, s. 6, against a Clerk of the Peace, for a misdemeanor in his office, and evidence was taken, and the Court decided that the charges were proved, and dismissed the Clerk of the Peace from his office, and appointed another person in his place : — Held. on a quo warranto information against the person so ap- pointed, that the sufficiency of the evidence was a ques- tion entirely for the Court of Quarter Sessions, and the decision of that Court could not be reviewed by the Court . . ._ .... .^. .. . ._, -. , ,, ,. of Queen's Bench. (6) Except when applied for, on behalf of the Crown, a certioran is not a writ of course, (c). The granting or re- fusing of the writ rests in the discretion of the Court, and, where the proceedings sought to be removed were completely spent, and no benefit would arise from re- opening them, the order was refused, (d) The Court must be satisfied on affidavits that there is sufficient ground for issuing it ; and it must, in every case, be a question for the Court to decide whether, in fact, suflBcient grounds do exist. Where a man is chosen into an office or place, by virtue whereof he has a lawful right, and is deprived thereof by an inferior jurisdiction who proceed, in a summary way, in such case, he is en- titled to a certioran ex debito justitia, because he has no (a) Ex parte Vaughan, L. R. 2 Q. B. 116, per Cockbum, C. J. lb) Reg. v. Russell, 5 U. C. L. J. N. S. 129 ; 17 W. R. 402. \c) Reg. V. Justices, Surrey. L. R. 6 Q. B, 466. [d) Reg. v. Ld. Newborough, L. R. 4 Q. B. 686. JJ 562 CRIMINAL LAW OF CANADA. t ■. '. ., other remedy, being bound by the judgment of the in- ferior jurisdiction, (a) In other cases, where the application is by the party grieved, so as to answer the same purpose as a writ of error, it might be treated Hke a writ of error, as ex dehito justitice ; but, where the appUcant is not a party grieved, who substantially brings error to redress his private wrong, but comes forward as one of the general publicr having no particular interest in the matter, and, if it thinks that no good would be done to the public, it is not bound to grant it, at the instance of such a person, (h) "When a Statute gives an appeal, this does not take away the right to a certiorari. The right can only be taken away by express words; and, for this reason, the power given to a Judge by the (N, B.) Rev Stat., c. 161, s. 32, to hear appeals from summary convictions before Justices of the Peace, does not take away the right of this Court to grant a writ of certiorari to remove such conviction, (c) Many authorities establish that a writ of certiorari may, in some cases, be granted, though expressly taken away by Statute, (d) Thus, the writ may be granted, notwithstanding 31 Vi« ., c. 42, s. 21, provided there be ground for the belief that the conviction was had without proof, where the Act provides that it shall be on proof to the satisfaction of the Justice, (e) So a writ of certiorari will be granted to remove a con- viction to the Superior Court, notwithstanding it is taken away by the Con. Stats. L. C, c. 6, s. 49, under which the conviction was had. (/) (a) See Reg. v. South Holland i). C. 8 A & E. 429. J6) Reg. v. Justices, Surrey, L. R. 5 Q. B. 472-3. (c) Ex parte Montgomery, 3 Allen, 149. See also Rex v. Oingras, S. L. C. A 560. (d) Reg. v. Haggard, 30 U. 0. Q. B. 156. per Richards, C. J. (e) Ex parte Morrison, 13 L. C. J. 295. {f)Ex parte Church, 14 L. C. R. 318. See also ex parte Lalonde, 15 L. C. J. 251. ; ' PRACTICE. 563 'L • ; • ' ■ ■ If a Statute declares that a certiorari shall not issue, it, nevertheless, may issue where there is a plain excess of jurisdiction, for the prohibition in the Statute would not be held to apply when the Justices or Sessions had inter- fered in a matter not within their jurisdiction, {a) So it lies where there is an absence of jurisdictTon in the con- victing Justice, or a conviction, on its face, defective in substance, (b) An enactment that proceedings of an inferior Court shall be final, does net take away the jurisdiction of the Supreme Court to review the proceedings, under a writ of certiorari, (c) There can be no certiorari after judgment, and the only course then is a writ of error, (d) Nor can an indictment be removed, by certiorari, from the Court of Greneral Ses- sions to the Queen's Bench, after verdict and before jndg- ment, even by the consent of parties, for their consent will not authorize an unprecedented course in a criminal case, (e) After verdict of acquittal for nuisance, on an indict- ment tried at the Assizes, a motion was made, with the concurrence of the Attorney-G-eneral, for a certiorari, to remove the indictment, with a view to obtain a new trials no ground being shewn by affidavit : — Held, that there was nothing to warrant the ordering of a certiorari (/) Where a conviction was made, under the Con. Stats. TJ. C, c. 75, and, on appeal to the sessions, the appeal was adjourned to another sessions, when the conviction was quashed : — Held, that a certiorari might issue to re- move the order quashing the conviction, (g) (a) Hespeler and Shaw, 16 U. C. Q. B. 104. (6) Re Watts, 5 U. C. P. R. 267. (c) Barnahy v. Gardiner, 1 James, .306. Id] Beg. v. Crabbe, 11 U. C. Q. B. 447 ; Beg. v. HmUh, 10 U. C. Q. B. 99: le) Bey. v. La^erty, 9 U. C. Q B. 306. /) Beg. V. Qzomski, 14 U. C. Q. B. 591. \g) Re D Josephs, 8 Dowl. P. C. 128. 1 6) Re Stewart, 2 L. C. G. 24. c) Ih. See Beg. v. Lafferty, 9 IT. C. Q. B. 306. I d) Ex parte Vaillancourt, 16 L. C. R. 227. e) Re Watts, 5 U. C. P. R. 267. 566 CRIMINAL LAW OF CANADA. defeat their objects to grant a certiorari to remove a con- viction for the purpose of quashing it, in respect of a matter, not appearing upon the conviction itself to be a defect rendering it bad, and which, if the appeal had not been taken away would have been rectified on an appeal, (a) Proceedings had under the 31 Vic, c. 42, s. 18, are of such a character, as to be susceptible of being removed by certiorari, (h) An Ecclesiastical decree of the Archbishop of Quebec, for the erection of a parish is not a civil proceeding, subject to revision by certiorari, so long as no proceed- ings have been taken for obtaining a ratification of such decree by the civil authorities, (c) The powers exercised by commissioners, under the 2 Yic, c. 29, s. 4, as to erec- tion of parishes are not judicial powers, subject to revi- sion by certiorari {d) The Superior Court of Montreal has no jurisdiction to grant a writ of certiorari, to bring up a conviction had before a Justice of the Peace, in the district of Three- Kivers. (e) A certiorari only substitutes the Superior Court for the Court below, and, whatever ought to have been done there, had the case remained there, it must be the duty of Superior Court to do, when the case is removed, {f) An application for a certiorari should be made at the first term, after the conviction, but where the Justice had no jurisdiction in the matter, a certiorari was granted, though a term had elapsed {g) Where an appeal from a summary conviction is made to a Judge of this Court, . r 'v 577 act ; for they are not the less Justices of the Peace, be- cause they are sitting in Court in that capacity, (a) It would seem that the Chairman of the Quarter Ses- sions cannot make any order of the Court, except during the Sessions, either regular or adjourned, (h) The Sessions possess the same powers as the Superior Courts as to altering their judgments during the same Sessions, or term ; and, for that purpose, the Sessions, as the term, is all looked upon as one day. (c) In this case, it was held that the Sessions might grant a new trial at the same sittings or sessions at which the conviction took place. On the first day of the Sessions, the appellant's counsel called on and proved his case. The respondent did not appear. It was not known that he had employed coun- sel, and the Court ordered the conviction to be quashed. On the second day, counsel appeared, and stated he had been employed, and was taken by surprise, and explained the reason of his non-appearance, on the first day, to the satisfaction of the Court and the appellant's counsel, and applied to have the order of the Court, quashing the conviction, discharged. The Chairman intimated that the application must not be understood in the nature of a new trial, and that, if a jury had decided the case, the authority of the Sessions to disturb the verdict might be doubted ; but held, on the authority of Holborn v. Danes, (d) that the Court had power to revoke the order quashing the conviction, for they could alter their judgment at any time during the same Session, (e) It seems that the fact of a Bench warrant having no (a) Fraser v. Dickson, 5 U. C. Q. B. 233, per Robinson, C. J. (b) Re Coleman, 23 U. C. Q. B. 615. ( c) Reg. V. Fitzgerald, 20 U. 0. Q. B. 546, per Robinson, C. J. (d) 2Salk. 494-606. (e) M'Lean and M'Lean, 9 U. C. L. J. 217. KK 578 CRIMINAL LAW OF CANADA. seal does not make it invalid (a), and a warrant of com- mitment, under the seal of the Court, or signature of the chairman, is not necessary. (6) « An attorney-at-law has no right to act as an advocate in a Court of Quarter Sessions, (c) and it is not in the power of County Court Judges to allow attorneys who are not barristers, to practise before them, as advocates in County Courts, (d) It seems that the Judges of every Court have power to regulate its proceedings, as to who shall be admitted to act as advocates, and that there is no positive rule of law to prevent any Court of justice from allowing the attor- , ney, even of a private individual, from acting as an advo- cate, (e) But it would seem that these remarks can only hold when there is no Statute excluding the person per- mitted to act. (/) , The 32 & 33 Vic, c. 30, s. 35, gives Justices power to proceed in private, and thereby to prevent counsel, attor- ney, or any other person, from appearing in behalf of the accused, {g) But, under c. 31 of the same year, ss. 29 and 30, counsel have a right to be heard. •;: Defendant having been convicted, at the Quarter Ses- sions, in June, 1863, judgment was reserved, and a special case stated for the opinion of the Court of Common Pleas. The questions thus reserved not hadng been heard or disposed of, the case was duly adjourned, from time tc time, and was again brought up at the Sessions in March, 1864, upon motion ior judgment, on the part of the prose- cution, and a rule nisi granted for a new trial in the fourth sittings of the Sessions after conviction. The rule (a) Fraser v. Dickson, 5 U. 0. Q. B. 234, per Robinson, C. J. lb) Ovens V. Tarjlor, I'J U. C. C. P. 49. (c) Meg. V. Erridye, 3 U. C. L. J. 32. (d) Re Brooke, 10 U. C. L. J. 49. See also Re Lapenotiere, 4 U. C. Q. B. 492. (c) Beg. V. Carter, 15 L. C. R. 295-6, per Meredith, J. ( / ; See Re Judge, C. G. York, 31 U. (J. Q. B. 267. (y) See ib. 271. PRACTICE. ■>.:' ' 679 nisi was afterwards discharged. The defendant appealed from that decision : — Held, that, as before the rule nisi was granted, a case was stated under the Con. Stats. U. C, c. 112, s. 2, which had not been heard or disposed of, and, as the third section of the Act provides that the Superior Court shall, in such case, hear, and finally de- termine, the questions stated, the Court of Sessions were no longer in possession of the matter, either to pass sen- tence or to grant a ne w trial ; that there was nothing legally before this Court, and that it could not be called on to review the decision of the Court of Sessions, (a) The power of fining and imprisoning, necessary to ' constitute a Court of Record, must be a general power, and a limited power of fining and imprisoning, such as the power to impose a specific pecuniary penalty and a certain number of days' imprisonment, does not constitute a Court of Record. (6) A Court of Quarter Sessions, being a Court of Record, has jurisdiction to fine for contempt of Court; and a counsel was fined for uring insulting language to a jury- man, and thereby obstructing the business of the Court. The Court of Queen's Bench will exercise a supervision in such cases, and see that the inferior Court has not ex- ceeded its jurisdiction, {c) Where an indictment will lie for a misdemeanor, an information may also be sustained, {d) Formerly any person might file a criminal information in the Queen's Bench, for a misdemeanor, against any other, and such informations were frequently resorted to, as a means of extorting money, (e) The ibuse was ef- fectually puta stop to by the 4 & 5 W. & M., c. 18, which (a) Reg. v. BouUbee, 2.S U. C. Q. B. 457. (b) Young V. Woodcock, 3 Kerr, 554. (c) Re Pater, 5 B. & S. 299 ; 10 Jur. N. S. 972. (d) Beg. v. Mercer, 17 U. C. Q. B. 630-1, per Bums, J. (e) Arch. Or. Prac. 17. 580 CRIMINAL LAW OF CANADA. enacts " The Clerk of the Crown, in the King's Bench, shall not, without express orders given by the Court in open Court, receive or file any information for a misde- meanor before he shall have taken, or shall ha^re deliv- ered to him, a recognizance, from the person procuring such information, to be exhibited in the penalty of £20, conditioned to prosecute such information with effpct." The remedy, by criminal information, obtains in Que- bec, and the duties and powers of the Clerk of the Crown, in such cases, are analogous to those of the ]\Iaster of the Crown Office, or Clerk of the Crown in England, (a) A party, applying for a criminal information, must de- clare that he waives all other remedies, whether by civil action or otherwise, {b) It is an established rule, that no application for a crim- inal information can be made against a Justice, for any- thing done in execution of his office, without previous notice, (c) The Justice is entitled to six days' notice of the motion ; and the motion must be made in time to enable the party accused to answer the same term.( .l .' ,/ >. ? , > ; . i i .; "When a charge is presented to a Grand Jury, they should consider first whether the accused is capable of committing the crime, and this involves the criminal lia- bility of infants, persons non compotes mentis, married wo- men, etc. ,!..-, 'ru , ;:,,w',.: .^-. ,,-/,;■■;/,! ,;.iv,-<,v.,'«'.^,.r'^vv:,.'-' A reasonable conclusion only is required, the rest is for the jury on the trial. They must have reasonable evi- dence of the corpus delicti, and that the accused is the guilty person. The intent laid or charged against the accused should clearly appear, either expressly or by ne- cessary implication, from the circumstances, (b) u;; y ; The record of a conviction for murder set out, in the caption, that the indictment was found at a general ses- sion of Oyer and Terminer and General Gaol Delivery, be- fore the Chief Justice of the Common Pleas, duly assigned, and under, and by virtue of, the Statute, in that behalf (a) Richardson v. Can. W. F. Ins. Co. 17 U. C. 0. P. 343, per J. Wilson, J. ( See Charge of Mr. Jus. Burns, 8 U. C. L. J. 6. . .' PRACTICE. 593 duly authorized and empowered to enquire, etc., setting out the authority to hear and determine, as formerly given in commissions, but not to deliver the gaol. It was then stated that, at the said session of Oyer and Terminer and General Gaol Delivery, the prisoner appeared and plead- ed, and the award of venire was, " therefore let a jury thereupon immediately come," etc. This record was re- turned to a writ of error, directed, " To our Justices of Oyer and Terminer, for our County of C, assigned to de- liver the gaol of the said county of the prisoners therein being, and also to hear and determine all felonies, etc." On error brought, it was held that the authority of the Justice sufficiently appeared without any statement whether a commission had issued, or been dispensed with by order of the Governor, for such Courts are now held not under commissions, but by virtue of the Statute, Con. Stat. U. C, c 11, as amended by 29 & 30 Vie, c. 40, and, as the record sufficiently shewed the absence of any commission, it must be presumed that it seemed best to the Governor not to issue one. The record shewed the Court to be held by a person competent to hold it, either with or without a commission, and wa8,therefore, sufficient. (a) But it would seem that if the Court had been held by a Queen's Counsel, or County Court Judge, it might have been necessary to shew whether a commission had issued or not, because he would only have authority if named in the commission, or appointed by one of the Superior Court Judges. It would seem, also, that, if the caption had been de- fective, it might have been rejected altogether, under Con. Stats. Can., c. 99, s. 62. In the same case, it was objected that, the only author- ity shewn being that of Oyer and Terminer, the award (a) Whelan v. Reg. 28 U. C. Q. B. 2. ^ LL 694 CIIIMINAL LAW OF CANADA. " therefore let a jury thereupon immediately come" was unauthorized and a special award of venire facias was re- quisite : — Held, assuming, but not admitting, that in England there is a difference, in this respect, between the power of Justices of Oyer and Terminer and of Gaol Delivery, and that the record shewed no authority to de- liver the gaol ; that, in this country, by the Jury Act, Con. Stat. TJ. C, c. 31, both have the same powers, the general precept to summon a jury being issued by both before the Assizes, (a) ' . ( ^j'- ,'^; : r » i j?; ■ .(. i^; A Jadge of Assize, as such, may, by force of the Statute, 27 Edw. 1, c. 3, deliver the gaol without any special com- mission for that purpose, (b) ,,..'.,,:,,., The Court is bound to take judicial notice of the powers of a Court of General Gaol Delivery, and, wherever it is recited, on a record, that anything was done at such a Court, if it is found that such Court has power to do the thing recited, it must be held to be rightly done, (c) As to serving on juries, infancy has been considered a ground of disqualification, on account of the probable de- ficiency of understanding. Being over the prescribed age has been considered only a ground for not returning the juryman, and there is no known head of challenge under which the objection can be made to a juryman over the prescribed age, if otherwise competent. The Statute, 13 Edw. 1, c. 38, being in the affirmative, leaves infants disqualified as at common law. {d) This Statute enacts, in peremptory terms, that old men above the age of seventy years shall not be put upon juries. But the prohibition in the Statute was not intend- ed as a disqualification, but merely as an exemption ; for,. (a) Whelan v. Reg. 28 U. C. Q. B. 2. - (6) il>. 44, per ^. WiUon,,J. : r: -^ ij.* .^.j- (c) lb. 85, per Richards, C. J. \L li^i {d) Mulcahy v. Reg. L. R. .3 E. & I. App. 315, per Willes, J. _ -. ';..) ■■'•-rj''7!'J't-:i'HV-?><-t' .'r"'.'.-Vi'v- *S' - . - -;- - -y-r'-i^d."'- ■ --.- f.'U./.ri PRACTICE. ' ^"« I '» • • 695 if they were put upon the panel, they could not be chal- lenged, f'a^ 3, f.-Z-A V , ,.1- ,,; '.,,,H-^.,. The 3 & 4 Wm. 4, c. 91 makes a clear distinction be- tween disqualification and exemption. Where, therefore, a juryman was returned whose age exceeded sixty years, that fact only operated in his favour, as an exemption, but was not a ground for challenge, as a personal disqual- ification. By this Statute, every one between the ages of twenty-one and sixty was qualified. By the Con. Stats. U. C, c. 31, s. 7, every person upwards of sixty years of age is absolutely freed and exempted from being returned, and from serving on juries, and shall not be inserted in the rolls to be prepared and reported by the selectors of jurors. It would seem that if a man over sixty years was returned as a juror, he could not be chal- lenged, for s. 98 of the Act only allows a challenge in the event of the juror not being duly qualified, {b) , '-j. •• ' An alien, qualified and resident as the Statute pre- scribes, may be a juror in Nova Scotia, (c) o - —- ,- • » By s. 12 of our Statute no man, not being a natural born or naturalized subject of Her Majesty, shall be qual- ified to serve as a grand or petit juror. • r i -. . Now , that j uries de meditate lingucB have been abolished, an alien is never admitted as a juror in this Province. Under the authority of the 29 & 30 Vic, c. 71, a proclamation issued on the 15th December, 1866, sepa- rating the County of Peel from the County of York, from and after the 1st of January, 1867. On the 23rd of November preceding, the usual precept had been sent to the Sheriff of the United Counties of York and Peel, for summoning jurors for the Winter Assizes for York, to be held on the 10th of January, 1867, and the Sheriff" re- (o) Mulcahy v. Reg. L. E. .3E. & I. App. 325. (6) See Mulcahy \. Beg., supra. i i •, ■ ~ ■ - "• (c) R^. V. BurUell, 1 Oldright, 126. — ' - ' " '' . , ■' -'-^vv- ■■■:-■■ , -' V -. , Aii'^iik ,/ J,i% iXi) 590 - CRIMINAL LAW OF CANADA. turned his panel to that precept, containing fifty-four jurors from York and thirty from Peel. Only those from York, however, attended, and, the venue being un- changed, the proceeding on trial was under the 29 & 30 Vic, c. 51, s. 53. The prisoner was tried by a jury de meditate lingucc, including six of these jurors, upon an in- dictment found and pleaded to at the previous Assizes in October. The prisoner applied for a new trial, or a ven- ire de novo in efl'ect, because the panel of jurors was drafted from the jury -list of the United Counties before the severance of the union, upon a precept previously is- sued, and addressed to the Sheriff of the United Counties; and because the panel of petit jurors returned to the Courts of Oi/er and Terminer and General Gaol Delivery, held for the County of York alone, on the 10th of January, 1867, contained the names of jurors, some living in the County of York, and some in the County of Peel, or, in other words, the Court at which the prisoner was tried was a Court held in and for the County of York alone ; the jurors could only be good and lawful men of that county ; there was no precept for the summoning and returning a panel of jurors, addressed to the Sheriff of that county. No panel was drafted from the jury-list of that county, but all the jurors were drafted, summoned, and returned under the authority of a precept addressed to the Sheriff of the United Counties, and in obedience to the provisions of the Statute applicable to such Coun- ties as united : — Held, per Draper, C. J., the objection, which was only to the due observance of certain rules, though involving a question of merits, in this sense, that every person has a right to be tried by a jury of good and lawful men, returned according to law to discharge that duty, if available at all, could only be taken by writ of error ; per Hagarty, J., no objection would lie. (a) (a) Beg. v, Kennedy, 26 U. C. Q. B. 326. ^ . ?•- PRACTICE. ' 597 The Con. Stats. U. C, c. 31, s. 139, provides ihat no omission to observe the directions of the Act, or any of them, as respects the " selecting jury-lists from the jurors' rolls," or " the drafting panels from the jury -lists," shall be ground for impeaching the verdict. In the above case, possibly, the array might have been quashed, because the yherift's return to the Court, which sat only for the County of York, contained the names of jurors resident out of that county, (a) In Ontario, the usual practice, as to summoning jurors, is as follows : — A precept, signed by the Judges, who are always named in both commissions of Oyer and Terminer and Gaol Delivery, goes to the Sheriff, to return a general panel of jurors, and that precept is returned into Court on the first day of the Assizes with the panel, and from the names contained in that panel all the jurors, both in the civil and criminal side of the Court, are taken ; and, as the Criminal Court always possesses the powers of Courts of Oi/er and Terminer and Greneral Graol Delivery, the jury process awarded in that Court is entered on the roll " Therefore let a jury thereupon immediately come." The Judge sitting at Oi/er and Terminer, or Gaol De- livery, has power, after issue joined, to direct a jury to come for the trial of the prisoner, and the usual venire facioLS, " therefore let a jury thereupon immediately come," is sufficient, because under the Jury Act, Con. Stat. U. C, c. 31, there has been a previous precept issued for the re- turn of jurors to that Court ; and Justices of both these Courts have the same powers by the Act. (b) v- vi , Where a Court is held under a special commission, be- gun in one year and finished in the next, and no new precept has issued to the Sheriff, for the return of jurors, it is not necessary that the jury should be impanelled (o) Rey. V. Kennedy, 26 U. C. Q. B. 331, per Draper, C. J. ^ (b) Whelan v. Eeg. 28 U. (\ Q. B. 84-5, per Rkharda, C. J. ..■. .v . . : . y 598 CRIMINAL LAW OF CANADA. from the jury-book for the latter year, (a) This might be requisite if the Act forbade a juror, duly summoned, to serve after the delivery of the new book to the yherifF.(^) It has been held that an alien, indicted for felony, has a right to be tried by a jury de meditate lingua;, (c) The 82 & 33 Vic, c. 29, s. 39, enacts that juries de meditate linguce shall not, hereafter, be allowed in the case of aliens. Where a prisoner has been arraigned on a charge of uttering forged paper, it is not competent for the Crown to order the trial by jury of a preliminary question, raised by the prisoner's counsel, to the effect that the prisoner had been extradited from the United States on a charge of forgery, and could not, therefore, be legally tried here for any other offence. This question must be determined by the Court, {d) The maxim, that Judges shall decide questions of law, and juries questions of fact, is one of those principles which lie at the foundation of our law. [e) The principle applies in criminal as well as civil cases, though, in some cases, it rests with the jury to determine a mixed ques- tion of law and fact. (/) The jury are bound to follow the direction of the Court in point of law ; and where a jury attempted to persist in returning a verdict contrary to the direction of Pol- lock, C.B., he told them they were bound to return a verdict according to his direction in point of law, and explained that the facts only were within their province, and the law in his ; and although he did not infringe on their province, he could not permit them to invade his. {a) Mulcahy v. Reg. L. R. 3 E. & I. App. 306. (6) lb. 316, per Willes, J. (c) Reg. V. Vonhoff, 10 L. C. J. 292 ; Reg. v. Miller, 8 L. C. J. 280. (d) Reg. v. Paacton, 10 L. C. J, 212. (ej Wimor v. Reg., L. R. 1 Q. B. 303, per Cockbum, C. J. -: CfJ Gray v. Reg., 1 E. & A. Reps. 504, per Sir J, B. Robinson, Bart. /";/,< PRACTICE. ;v.t 599 He peremptorily directed them to return a verdict ac- cording to his direction iu point of law. (a) i| ,i,, , . ,,-,., The jury have a right, after the summing up and con- clusion of the case, and afier retiring to their room to deliberate, to return to open Court, and re-examine any of the witnesses whose evidence was not well under- stood by them, (h) *, , ;j, ;yun ; 'i ■ The strictness of the rules regarding juries, and the conduct of trials, has been much relaxed in modern limes. ^ 6y \i' ff' !'■ '-.Tyt I'.i ! '' The misconduct, or irregular and improper conduct of juries, will only have the effect of vitiating their ver- dict, when it is such that the result of the trial has been influenced by it, or when there is any sufficient and reasonable ground to believe that such influence or eftect has been produced by it, (d) There is a substantial distinction in regard to miscon- duct of the jury, whether the irregularity took place before or after the jury are charged by the Judge, The indulgence in the way of separating, or otherwise, is much restricted after the charge, {e) The fact that one of the jury, on a trial for felony, during a recess which took place in the progress of the trial, not being in charge of any officer, or other person, entered a public-house, and mentioned the subject of the trial to A., and had some slight conversation with other parties as to it, is, in the absence of evidence that the juror, or the verdict, was influenced by this, not suffi- cient to vitiate the verdict, or amount to a mis-trial, ( f) . When a juror has separated from his brethren, and (a) Reg. v. Bobinson, 1 U. C. L. J. N. S, 53 ; 4 F. & F. 43, (b) Beg. v. Lamcj-e, 8 L. 0. J. 281, [.{ (c) Beg. V, Kenned}/, 2 Thomson, 207, per Halliburton, C, J. , (d) lb. 212, per Bliss, J. (c) lb. 221, per Wilkins, J. a /.I {f)Ib.m. 'Vil_ 600 CRIMINAL LAW OF CANADA. conversed with others on the subject of the cause in a way calculated to influence him in forming an opinion upon it, it amounts to a mis-trial, let the consequences be what they may : but if the juror is not influenced by anything which occurred in consequence of the separa- tion, there is no mis-trial, (a) fv-'#» rr '• In all criminal trials, less than felony, the jury may, in the discretion of the Court, and under its direction as to conditions, mode, and time, be allowed to separate during the progress of the trial, (b) ■ ■■ . ■-■-. ... ■^>.- The Crown, as well as the prisoner, has a right to set aside a verdict vitiated by the juries' miscon- duct. (C) • ' ' ' • ■ ■ ' •■ V . . There is no authority for ordering that a jury have refreshments during the period of their deliberation, {d) As to discharging juries, there would seem to be no difference between misdemeanors and felonies. In both, the principles on which trial by jury is to be conducted are the same, (e) If a juryman has merely fainted, because the Court- room is hot and close, it would be proper to wait a short time, and then proceed ; but if he is taken so ill that there is no likelihood of his continuing to discharge his duty, without danger to his life, the jury must be dis- charged. (/) Where the record of a conviction for felony shewed that, on the trial of an indictment, the jury being unable to agree, the Judge discharged them — that the prisoner was given in charge of another jury, at the next assizes, and a verdict of guilty returned, and judgment and sen- a) Reg. v. Kennedy, 2 Thomson, 206-7, per Halliburton, C. J. |6) 32 & 33 Vic. c. 29, a. 57. c) Reg. V. Kennedy, 2 Thomson, 213, per J5/m, J, d) Win8(yr v. Reg. L. R. 1 Q. B. 308, per Corkbum, C. J. e) Win8or v. Reg., L. R. 1 Q. B. 307, per Cockburn, C. J. «i. f) lb. 315, per Blackburn, J. '''0 PRACTICE, . 601 tence passed, on writ of error : — Held, that the Judge had a discretion to discharge the jury, which a court of error could not review — that the discharge of the first jury, without a verdict, was not equivalent to an acquit- tal — that a second jury process might issue, and that there was no error on the record, (a) When the discharge of a jury is warranted by the rules of law, it does not operate as an acquittal, or bar another trial; but if the jury are wrongfully discharged, the prisoner cannot be put a second time on trial, {b) The illness of a juror, or the illness of a prisoner, has been held sutiicient ground for discharging ^-he jury, [c) A jury sworn and charged, even ^i case of felony, may be discharged, without verdict, in case of death or illness of one of the jury, or their being unable to agree, or at the desire of the accused, with the consent of the prose- cution. (^) ' ' • The jury cannot be discharged at the instance of the prosecutor, in order to obtain evidence, of which, at the trial, there appears to be a failure. But it would seem that this is not a rule of positive law, and that there are exceptions to it ; and where a witness is kept away by the prisoner, and by collusion between him and the prisoner, is tampered with, the rule should be relaxed, and the Judge permitted to discharge the jury. - - -'- Where a jury are discharged in consequence of their not agreeing, it is not necessary to wait; and, on the contrary, the Judge should not wait until the jury are exposed to the dangers which arise from exhaustion or ' prostrated strength of body and mind, or until there is a chance of conscience and conviction being sacrificed for (a) Winsor v. Reg. L. R. 1 Q. T. 390, (Ex. Chr.) \b) Ih. .'->- \c) lb. 305, per Cockburn, 0. J. '*> id) Meg. v. CkarleswoHh, 9 U. C. L. J. 53 ; 1 B. & S. 460. '^J 602 CRIMINAL LAW OF CANADA. personal convenience, and ta be relieved from suffer- ing, (a) The defendant was put on trial for a mis(^ neanor. At the trial, a witness, called on behalf of the Ore wn, claiired his privilege not to give evidence on the ground that he would, thereby, criminate himself. The Judge, who presided at the trial, refused to allow him the privilege ; but, the witness still refusing to answer, he was com- mitted to prison for contempt of Court, and a con- viction of the defendant being, under these circum- stances, impossible the jury, at the request of the counsel for the prosecution, and against the protest of the counsel for the defendant, were discharged without giving any verdict : — Held, that the defendant ought not to be al- lowed to put a plea upon the record stating the above facts, but that they ought to appear as an entry on the record. An entry was made upon the record accordingly ; when it was, further, held that, whether or no, the Judge had power to discharge the jury, what took place did not amount to a verdict of acquittal, nor was the prisoner en- titled to plead avtrefois acquit in respect thereof, and that the defendant was not entitled to judgment quod eat sine die, or to the interference of the Court to prevent the issuing of a fresh process, (b) i 'i ■■ r... . ,j • r myo.iM The old doctrine, that, if the jury could not agree, it was the duty of the Judge to carry them from town to town in a cart, has been exploded in modern times. It is certainly not now the practice, (c) ^ i^vy ti ;.*'' ^'VW; In criminal cases, not capital, w^here the verdict is so inconsistent and repugnant, or so ambiguous and uncer- tain, that no judgment can be safely pronounced upon it, a venire de novo may be awarded, (d) -,■• - v,i »; t , (a) Reg. v. Charksworth, 9 XJ. C. L. J. 48. " ' • • ■ (b) Reg. V. Charlesworth, supra. (c) Winsor v, Reg., L. R. 1 Q. B. 305, per Cockburn, C. J. 320-1, per Mellor, .T. (dj Reg. v. Healei/, 2 Thomson, 332-3, per Bliss, J. PRACTICE. " G03 Where, on. an indictment for murder, the jury returned a verdict, in writing, in the following words : " Gruilty of murder, with a recommendation to mercy, as there is no evidence to show malice aforethought and premedita- tion " : — Held, that the verdict was too ambiguous and uncertain to allow the Court to pronounce any judgment upon it. (a) A recommendation to mercy is no part of the ver- dict, {h) If it were shewn that, upon the jury delivering their verd>t in open Court, anything was openly said by them which could give the Court to understand that they were not openly assenting to that verdict, and, nevertheless, by some error or misapprehension, it was received as their unanimous verdict, the Court could, and ought to, interfere on such ground, and grant a new trial, when such a course was authorized by our criminal prac- tice, (c) ' , ; : A jury may correct their verdict, or any of them may withhold assent and express dissent therefrom, at any time before it is finr.lly entered and confirmed. (^) It is irregular for counsel to question the jury directly, and not through the Court, as to the grounds of their verdict, (e) ••''- ■■:^ • t.: , •:•)>■,:•• p ■.? • i.. . '■ It would appear that the right of a jury to find a gen- eral verdict, in a criminal case, and to decline to find the facts specially, cannot be questioned, especially when the verdict is one of acquittal. (/) -xj , .t-. i/iiiu.w,' :< t.'>>.(;;- It is doubtful whether a verdict can be received and recorded on a Sunday, {g) •■ m [•wl^.i-t :,ii..iir. :^!;s'. {«! (a) Reg: v. HeaJey, 2 Thomson, 331. (h) See Beg. v. Trebilcock. 4 U. 0. L. J. 168 ; Dears. & B. 453. (rj Reg. v. Fellowes, 1!) U. 0. Q. B. 50, per Robinson, C. J. ; and see Reg. ' Ford, 3 U. C, C. P. 217-8, per Maeaulay, 0. J. id) Reg. v. Ford, supra, 217, per Macaulav, C. J. (c) lb. '^^■'" f^' '"' iii^i'' (/) Reg. V. Spence, 12 U. 0. Q. B. .519. (»7) Wiiisor V. Reg. L. R. 1 Q. B. 308-317-322. . , 604 CRIMINAL LAW OF CANADA. The Con. Stats. U. C, c. 113, 20 Vic, c. 61, has been repealed except sections 5, 16 and 17. By the 32 & 33 Vic, 0. 29, s. 80, no appeal lies to the Court of Error and Appeal in any criminal case where the conviction has been affirmed, by either of the Superior Courts of common law, on any question of law reserved for the opinion of such Court. Prior to the 20 Vic, c 61, an appeal lay to the Superior Court, on any question reserved by the Sessions, or a Court of Oyer and Terminer^ under the 14 & 15 Vic, c 13. The latter Statute has not been repealed, and a question, reserved at the Sessions, or at a Court of Oyer and Ter- miner^ may be adjudicated on by the Superior Court in Banc. '' ."■ > , h-'i'. The following rules may still apply to the unrepealed Statute: — ' Istly, In all cases of appeal from the judgment of the Court of Quarter Sessions, under the said Statute, notice of such appeal shall be given by the person convicted, or his attorney, to the county attorney for the county in which the conviction shall have taken place, within six days from the time of sentence being passed ; or, in case there shall be no county attorney for such county, then to the Clerk of the Peace thereof ; and an affidavit of ser- vice of such notice shall be filed in the Superior Court appealed to, with the papers directed by the said Statute to be transmitted from the Court of Quarter Sessions. 2ndly, A copy of the indictment, and of any subse- quent pleadings, and of the verdict endorsed upon the indictment, shall be sent with ihe proceedings directed by the said Statute to be transmitted ; and that, where the new trial has been moved for, upon the ground that the e\ndence did not warrant the conviction, a full state- ment of the evidence shall be sent with the case, signed and certified in the same manner. ,.,^ ^ PRACTICE. 605 Srdly, Every case sent from the Quarter Sessions shall state whether judgment on the conviction was passed or postponed, or the execution of the judgment respited ; and whether the person convicted is in prison, or has been discharged on recognizance of bail to appear and receive judgment 4thly, In every such case of appeal from a Court of Quarter Sessions, the original case, signed by the Recorder or Chairman of the Court, and four copies of such case, one for each Judge and one for the county attorney or other counsel for the Crown, shall be delivered to the Clerk of the Court appealed to, at least four days before the sitting of the said Court ; provided that, where the new trial has been moved upon the evidence only, one copy of the report of the evidence in full need be filed, in addition to the statement of the evidence which has been certified ; and that, when any case is intended to be argued by counsel, or by the parties, notice thereof be given to the Clerk of the Court appealed to, at least two days before the day appointed for argument, -v^ hich shall be one of the paper days during the term. In Reg. V. Beckwith, (a) effect was given to an objec- tion that rules numbers 5, 6 and 7, under this Act, were not complied with. , , , ; The Court has no power to order a new trial, or to prevent a verdict of guilty from going into effect, on a criminal case reserved under the 14 & 15 Vic, c. 13, but only to decide upon any particular legal exceptions raised upon the pleadings, or the evidence, or upon the general question, which is strictly one of law, whether there was legal evidence to sustain the indictment, taking it in as strong a sense against the defendant as it will bear, and (a) 8 U. C. C. P. 274. • . '■i'fiu-^" '>! t !• '"''-•' ■ r /.iii*;ii5:--'*'t-My^'-'^t-'— r*-*^*^"^. : r'""^f *'" f^i T--ur yt' -fit If')/, w: <.;.: The question, can there be a new trial in case of felony- is one which may be properly reserved, (b) i . ,i i- f.i; No case can be stated for the opinion of the Court for Crown cases reserved, except upon some question of law arising upon the trial. Where, therefore, the prisoner had pleaded guilty, and the question asked was, whether the prisoner's act, as described in the depositions, sup- ported the indictment ; the Court held that they had no jurisdiction to consider the case, (c) ' : ;,..(> "When a case is reserved, under the Con. Stats. U. C, o. 112, the Court may arrest the judgment, with a view to a new indictment being preferred, or for other pur- poses, (d) :■ ' ■ :■• , I . • In Reg. V. McEvoy, (c) the Court, under the facts shewn, considered they might either enter an arrest of judgment, under the Statute, or direct judgment to be given as for a misdemeanor at common law ; but the lat- ter course was adopted because it was doubted whether the judgment could properly b arrested, where the in- dictment, though flamed imperfectly, as for an offence against a Statute, does contain a sufficient charge of an offence at common law. ... It would seem that the objections, on a motion to arrest the judgment, are confined to the points reserved under the Statute. {/) Where, on an appeal from a conviction affirmed at the Sessions, it appeared that the point in question was purely (a) Reg. v. Bahy, 12 U. C. Q. B. 346. \b) Rey. v. D' Aoust, 10 L, C. J. 221, per Mondelet, J. ; S. C. 16 L. C. K. 493, per Meredith, J. (c) Reg. V. Vlark, lu R. 1 C. C. R. 54 ; 36 L, J. (M. C.) 16. (d) Reg. v. Rose, 1 U. ('. L. J. 145 ; Reg. v. Spence, 11 tf. C. Q. B. 31 ; Beg. V. Orr, 12 U. C. Q. B. 57. See ante p. 234 ; Reg. v. Spence, infra. „ .., , , , (e) 20 U. C. Q. B. 344. - ^ 4 f^-- if) Reg. y. Fmnety, 3 ARvn, 132. , ..,. - .. * vv i. , . . ; PRACTICE. V ) / . 607 one of law, and there could be no object in sending the case down for a new trial, the judgment was arrested. (a) The Court may, in certain cases, stay the entry of judgment until a new indictment is preferred, but, in such case, the indictment must be removed by certior- ari, (h) In criminal matters, foreign law should not be brought before the Court, (c) American authorities, though en- titled to respect, will not be received as binding in our Courts, (d) Nor are English decisions absolutely binding in this country, (e) -^ • -i k r If, after a verdict of guilty of felony, and when the Judge is about to pass sentence, objections are made by the prisoner's counsel in arrest of judgment, but over- ruled by the Judge trying the cause, the Court in Banc has authority to enquire into the validity of these objec- tions, though the record does i^ot state that the prisoner's counsel moved in arrest of judgment. The presence of the prisoner at the argument may be waived by consent of parties. (7^^ ;.-. > ;. • .,,.,.;, The Court of Qacen s Bench, in appeal, will adjudicate on a reserved case of misdemeanor in the absence of the defendant, who has fled beyond the jurisdiction of the Court, (g-) ' '■■' n,,!--' -, i'. -^''v ... Where a man charged with felony is being tried, what- ever may have been his position in life, he must take his place in the dock ; but the misdemeanant, if on bail, is not obliged to do so. {h) ju^' • •.^^ " .*., ..> . • .■•- '>■>- In criminal cases, it is always entirely in the discretion («) Beg. V. Rubidge, 25 U. C. Q. B. 299. ' -^ ' '"' ' '' ' '' ''"'■' (6) Beg. v. Spence, 12 U. C. Q. B. 519. .( ih^L .;;,-.; .. } , (c) Notman v. Beg. 13 L. C. J. 259, par Duval, C. J. ' ^ (d) Boberts v. Patillo.l James, 307 ; Beg. v. Creama; 10 L. C. R. 404. f') (c) Beg. V. Boy, 11 L. C. J. 92. /) Beg. V. Kennedy, 2 Thomson, 204. ^ . ' ig) Beg. v. Eraser, 14 L. C. J. 245. N'* .-> V{ ». 1. >) (A) Ex parte Blossom, 10 L. C. J. 69, per Meredith, J. > ■■y^^ -'i 60S CRIMINAL LAW OF CANADA. of the Court to allow a view or not. It is, therefore, no irregularity to allow the jury to have a view of premises where an alleged offence has been committed, after the Judge has suiamed up the case, (a) The Court ought to take such precautions as may be necessary to prevent the jury from improperly receiving evidence out of Court. Where, at proceedings on a view, evidence was received in the absence of the Judge, the prisoners, and their counsel, the Court for Crown cases reserved held that it is for the Court, before which the trial takes place, to ascertain whether such irregula- rity has taken place, and that they could not reverse the conviction, on the ground of a mere statement of what the Judge was informed. QucBre, whether, if such irregularity had occurred, this Court would have juris- diction to order a venire do novo, as for a mis-trial. Qucere, also, whether, if the facts were thus tried, and found to be as alleged, they ought to be entered on the record, so as to give an opportunity of taking advantage of the defect by writ of error, or whether the question could be properly raised by a case stated for this Court. (6) ■ The Judge has a discretion to adjourn the trial when the counsel engaged in it becomes so ill as to be unable to proceed. One of the prisoner's counsel at the trial, whilst he was addressing the jury, at the close of the case, was suddenly seized with a fit, and incapacitated from proceeding further. No adjournment, however, was applied for ; but the other, who was the senior coun- sel, continued the address to the jury, on the prisoner's behalf, without raising any objection that he was placed at a disadvantage by his colleague's disability. It did not, moreover, appear that the prisoner had been pre- (a) ii^. V. Jfartin, L. R. 1 C. C. R. 378. . .. ,,.^+^,'- , ' ' PRACTICE. ' 609 judiced by the absence of the counsel alluded to : — Held, no ground for a new trial ; but, in such case, if a post- ponement had been asked, in consequence of the illness, it would have been in the discretionof the Judge to have granted it or not, and to have adjourned it for an hour or two, or to another day, or for several days, or until the following Court, as might have been thought reason- able, (a) Objections, which it is intended to insist on afterwards, must be distinctly raised at the trial ; and as the Judge presiding is authorized by the Con. Stats. U. C, c. 112, to reserve any question of law for the opinion of the Court, it is the more necessary that his attention should be drawn to every matter of law which is relied on lor the prisoner, whether by way of suggestion on the de- fence, or of exception to the Judge's ruling, or direction at the trial, (h) The objections should also be noted by the Judge, for the Court cannot notice grounds of objections taken in rules unless they appear in the Judge's notes ; and it is the duty of counsel, on moving, to ascertain whether the objections they rely on were noted by the Judge who presided at the trial. If they do not appear to be noted, a rel'erence should be made to the Judge to have the notes amended before they are made the grounds of a motion, (c) ^^ : ''-' ■■ '' > •» - ^ -^ -tiiv!., ;■:> / There is nothing to prevent the Judge, on a criminal trial, having the notes of the evidence taken in writing by another person, (flf) '<■ ;! '^'-i ' "j : •.;mi*^'m;,js,\ r ^.^ The 32 & 33 Vic, c. 29, s. 32, provides that every ob- jection to any indictment, for any defect, apparent on (a) Reg. v. Fkk, 16 U. C. C. P. 379. " ' . (6) Hey. V. Craiy, 7 U. C. C. P. 241, per Draper, C. J. (c) jKe.,'. V. Dea Jardins G. Co., 27 U. C. Q. B. 380, per Morrism, J. See also Cousins v. Merrill, 10 U. C. C. P, 120. (d) Duval dit Barbinas v. Re(j , 14 L. C R. 75, per Merediik, J. MM 610 CRIMINAL LAW OF CANADA. the face thereof, must be taken by demurrer, or motion to quash the indictment, before the defendant has pleaded, and not afterwards. The object of this Statute was to prevent w^aste of time and labour in criminal trials, and to compel a legal defence to be resorted to at the earliest possible stage. The Court, therefore, will not arrest judgment after verdict, or reverse judgment in error, for any defect apparent on the face of the indictment, which could have been taken advantage of under this clause. fa) The defendant is not in all cases, of acquittal, entitled to a copy of the indictment laid against him ; and, where the charge was for obtaining goods by i'alse pretences, copies of the indictment and papers, were refused. (6) A copy of an indictment for high treason may be ob- tained by consent of the Attorney-General, (c) The 32 & 33 Vic, c. 29, s. 26, provides that on an indict- ment for any offence laying a previous conviction, the offender shall in the first place, be arraigned upon so much only of the indictment as charges, the subsequent offence, and if he pleads not guilty, the jury shall be charged, in the first instance, to enquire concerning such subsequent offence only. If, when, found guilty of the subsequent offence, the prisoner denies that he was previously convicted or stands mute of malice, or wall not answer whether he is guilty or not guilty, the jury should then be charged to inquire concerning such previous conviction, {d) Where an indictment contains, one count for larceny, and allegations in the nature of counts for previous con- victions for misdemeanors, and the prisoner, being ar- raigned on the whole indictment, pleads not guilty, but (a) Reg- v. Mason, 32 U. 0. Q. B. 246. , , j , , . i (6) ^e^. V. Seneca/, 8 L. C. J. 286, -y { , j ; '" :, ' ,'. ;", (c) Rex\. M'Donel, Taylor, 299. i , .-: / , • ' > , '. ' '' i ^^. (d) See Beg. v. Harley, 8 L. C. J. 28a -' '' '; >=' "^ r " ^:,, ,. ,; , PRACTICE. ' 611 is not tried till a subsequent Assize, when he is given in charge on the count for larceny only, this does not amount to error, for he was properly given in charge to the jury, and, having been arraigned and his plea entered at a previous Assize, could not be prejudiced by any mistake in his arraignment, (a) . Under the English Acts, 5, Geo. 4, c. 84, s. 24, and 8 & 9 Vic, c. 113, s. 1, which are, in substance, the same as our 32 & 33 Vic, c 29, s. 26, omitting the proof of the identity contained in the latter Act, it was held that the certificate of a previous conviction, requi/ed by these Acts, is sufficient, if it purports to be signed by an officer having the cus- tody of the records, although that officer is therein des- cribed as the Deputy Clerk of the Peace of a Borough.(6) The 32 & 33 Vic, c 29, s. 45, provides that all persons tried for any indictable offence shall be admitted, after the close of the case for the prosecution, to make full answer and defence thereto, by counsel learned in the law. Two counsel only can be heard on behalf of prisoners indicted for criminal offences, and persons tried for felo- nies may make their full defence by two counsel, and no more, before a jury wholly composed of persons skilled in the language of the defence. («) After two counsel had addressed the jury, on behalf of the prisoner, a third rose to do so, but was stopped by the Court, {d) . At the close of the case for the prosecution of three prisoners, defended by separate counsel, one was ac- quitted, and was called as a witness on behalf of one of the two remaining. This witness criminated the other (a) Rtg. V. Mason, 32 U. C. Q. B. 246. (6) Reg. V. Parsom, L. R. 1 C. C. R. 24; 35 L. J. (M. C.) 167. • - (c) iJej^. V. £>' ^(nt««, 9 L. C. J. 85. h-w • ' •' (d) lb. ■'-" '■ ^ •-' .. ■■- .-.^>^V.T^' 012 CRIMINAL LAW OF CANADA. prisoner : — Held, that the counsel of the prisoner crimi- nated had a right to cross-examine and address the jury on the evidence so given. That, as this right had been refused, the conviction of the prisoner must be quashed, although the Court had oifered to put the questions sug- gested by his counsel, (a) It has been held that, in cases of public prosecutions for felony, instituted by the Crown, the law officers of the CroM'n, and those who represent thenti, were, in strictness, entitled to the reply, though no evidence was produced on the part of the prisoner, {b) But in Ontario, a counsel for the Crown, not being himself the Attorney or Solicitor General, had no right to reply in an ordinary prosecution for crime, where no witnesses were called for the defence, (c) Now, however, the right of reply shall always be allowed to the Attorney or Solicitor General, or to any Queen's Counsel, acting on behalf of the Crown, {d) A Clerk of the Crown in Quebec, being a Queen's Counsel, has a right to be heard in a criminal case, on behalf of the Crow i, notwithstanding Con. 8tats. L. C, c. 77, s. 75 ; and the duties and powers of Clerks of the Crown not being delined in their commissions, nor by Statute, the Court will look to the English law, and the the powers and duties of the Master of the Crown Office there, as a guide in deciding on the duties and powers of Clerks of the Crown in Quebec, (e) Crown prosecutions differ from ordinary civil suits; for, if the Queen be prosecutor, there can be no non pros, or non-suit or demurrer to evidence. The prosecutor (a) Reg. v. Luck, 1 U. C. L. J. 78 ; 3 F. & F. 483. See also Reg. v. Coyh, 2 U. C. L. J. 19. (6) Reg. v. Quatre Pattes, 1 L. C. R. 317. (c) Reg. V. McLellan, 9 U. C. L. J. 75. ,ji, .S \d) 32 & 33 Vic. c. 29, s. 45, S8. 2. _ ... ; .,., A-^rA v^^^^.. v ; .y^H. m (e) iJef/. V. C7a7-«er, 15 L. C. R. 291. ' • ' n-?V; PRACTICE. ' '* 613 may be a witness, but not the defendant ; and if the latter obtains judgment, he is not entitled to costs, (a) The object of a challenge is to have an indifferent trial. (6) The right of peremptory challenge, at common law, was a principal incident of the trial of felony. This right cannot be taken away by implication from the terms of a Statute, unless such implication is absolutely necessary for the interpretation of the Statute, {c) In felonies, as well as misdemeanors, the Crown had the right of challenging any number of jurors peremp- torily, without assigning any cause, until the panel was exhausted, (d) The 32 & 33 Vic, c. 29, s. 38, enacts that, in all criminal trials, whether for treason, felony or misdemeanor, four jurors may be peremptorily challenged, on the part of the Crown. The right of the Crown to cause any juror to stand aside until the panel has been gone through, or to chal- lenge any number of jurors for cause, is not aflected by this Statute. Even before the Statute, on a trial for misdemeanor, the Crown might, without shewing cause, direct jurors, on their names being called by the Clerk of the Court, to " stand aside " until the panel was gone through, (e) This was the well-understood practice on indictments for felony, as well as misdemeanor, and it is said that, be- fore the Statute 33 Edw. 1, s. 1, st. 4, (/) the King might challenge peremptorily, without shewing cause, but that Act w^as construed to restrain the privilege, and to require (a) Reg. v. Pattee, 5 U. C. P. R. 295 ; 7 C. L. J. N. S. 124. (6) Levinger v. Beg. L. R. 3 P. C. App. 287, per Sir J. Napier. (c) lb. 289, per Sir J. Napier. (d) Reg. V. Feltowea, 19 U. C. Q. B. 48. ^' ^'''■' (e) Reg. v. Fraser, 14 L. C. J. 245 ; Reg. v. Benjamin, 4 U. C. C. P. 179. (f) See Con. Stats. U. C. c. 31, s. 101. 614 CRIMINAL LAW OF CANADA. the Drown to shew cause if the panel was otherwise ex- hausted, (a) The restriction in practice thus imposed on the Crown is, that it shall not exercise its prerogative so as to make it necessary to put oti" the trial tor want of a jury, such as the party arraigned is entitled to have on his trial. (6) On a trial for felony, the Crown may, without shewing cause, direct a juror, on his name being called by the Clerk of the Court, to " stand aside," and, on the panel being read over a second time, ma> , without shewing cause lor challenge, direct the same juror to stand aside a second time, and so on until the panel is exhausted, i.e. till it appears that a jury cannot be got without such juror, (c) Calling the list over once is not exhausting the panel, nl) The direction to stand nside is not, in fact, a chal- lenge. {€) But it is, in effect, equivalent to a peremptory chal- lenge if, without having to resort to such of the jurors as have been " set by '' for the time, on the part of the Crown, there can be prociired from those returned on the panel enough of jurors, not objected to, to make a jury- if) It seems there is no authority for any challenge in mis- demeanor, except for cause, (g) But the practice of or- dering jurors to "stand by" enables the prosecutor to exercise, practically, the right of peremptory challenge. Any number of jurors may be challenged for cause, (h) {at Heff. V. Benjamin, 4 U, 0. C. P. 185, p^r Mmmilaii, 0. .T. [h) Levinper v. Jiep., L. R. 3 P. i\ App. '28.S, per Sir J. Napier. ■■ ■ ' c) Jfe;; v. Lacomle, 13 L. C. .T. 259. (d) lb. 261, per Monk, J.; and see Munaell v. Reg., 8 E. & B. 54 ; Dears. & B. 375. See 32 & 33 Vic. c. 2'.), s. 41 , .as to supplying defect of jurors, if the panel is exhausted. (e) Reij. V. Laiomhe, supra, 261, per Badtiley, J. -^ ' - "^ '"" ( /) Ltvinger v. iJe;/. supra, 288, per ,Sir J. Napier. r'-' •' - •• , . (y) Jieif. V. Fraser, 14 L. C. .T. 245. (h) Whelan v. lleg. 28 U. C. Q. B. 38, per A. Wilson, J. PUACTICE. 615 Where, on a trial for felony, the jury-panel contained the names of J. T. and W. T., and, when the name of J. T. was called, a person, supposed to be .1. T., went into the ))ox, and was sworn without objection, and, the prisoner having been convicted, it was discovered the next day that W. T. had, by mistake, answered to the name of J. T., and was really the person who had served on the jury, it was held, by a majority of the Judges, that this was only ground of challenge, (a) r <» After the prisoner was arraigned, on his trial for mur- der, and had pleaded not guilty, and received the usual notice of his right to challenge, two jurors were called who were not challenged by him, and were thereupon sworn. The name of John Hill was then called, and a person answering to that name came forward, and was sworn without challenge or objection. tSome others were afterwards called, and, on being challenged peremptorily by the prisoner, they withdrew ; and, after another was called and sworn without challenge, the prisoner's coun- sel objected to John Hill, as he was a witness in the case for the prosecution. Upon enquiry it was found that there was a person named John Hill returned on the panel, but that he was a different person from the John Hill sworn on the jury, and that the latter was, not only a witness, but also a resident of another county, and, therefore, not qualified to act as a juryman. Upon con- sent of both the counsel for the Crown and the prisoner, he was allowed to retire, and other jurymen were called and sworn until the panel was full, the prisoner exercis- ing the right of challenge until the jury was chosen. The juror was withdrawn before the prisoner was given in charge. The prisoner was tried and convicted, and, upon motion for a new trial, the Court held, first, that the John (a) Beg. v. MeUor, 4 U. C. L. J. 192; Dears. & B. 468. ; * - 616 CRIMINAL LAW OF CANADA. Hill, improperly sworn, was lej^ally discharged from the jury ; second, that his discharge did not operate upon the jurors previously sworn, so as to render it necessary to re-swear them, and thus re-open the prisoner's right of challenge to them ; and, third, that, though thirteen per- sons were sworn to try the pri>ioner, the twelve by whom he was tried constituted the jury lor his trial ; in other words, that he was properly tried by the twelve who constituted the jury, (a) . •( If a jury has been elected, tried and sworn, and charged with a prisoner, and are afterwards discharged without giving a verdict, either because they could not agree, or because they were discharged on motion of the prisoner's counsel, and at his request, and with the assent of the Crown counsel, a new jury would have been called and swovi! in the ordniary way, and the prisoner would dve the usual right of challeng(; to them. But if, before the whole jury has been completed, and the prisoner given in charge, as in the above case, an unqualilied or disqual- iiied juror is called and sworn, without challenge or ob- jection, the withdrawal of the juror, at the request of the prisoner, and by the consent of the Crown, does not ren- der it necessary to discharge the whole jury. Those already chosen and sworn may be retained, and the full complement of jurors may be made, up from the others in (;Ourt, for it is not necessary to re-open the prisoner's right of challenge to the jurors already chosen, if the pris- oner, has not be»n given in charge, ib) The prisoner desired to challenge S., one of the jurors called, for favour, alleging sufficient cause. The Judge ruled that h<^ must first exhaust his peremptory chal- lenges, and this point was raised by plea and demurrer, (a) Itcy. V. CouUer, 13 U. (J. C. P. 2911. t6) Ih. PllACTICE. G17 and formally decided, The prisoner then challenged S. peremptorily, and the entry on the record then was that, in deference to the judgment, the challenge was taken, and treated by the prisoner and by the Attorney-Gen- eral as a peremptory challenge for, and on behalf of, the prisoner. Afterwards, having exhausted his twenty chal- lenges, including S., he claimed to challenge peremptor- ily one H„ contending that, by the erroneous ruling, he had been compelled to challenge S. peremptorily, and should not be obliged to count him as one of the twenty. This was also entered of record and decided against him : — Held, on error brought, that the prisoner was entitled to challenge for cause before exhausting his peremptory challenges ; that error would lie for the refusal of this right, and that, had 8. been sworn, there must have been a venire de novo, but that the prisoner, >)y peremptorily challenging the juror, S., waived or abandoned his right in respect of the erroneous decision of the Judge, and had not any locus standi to assign error lor that decision, or for the rejection of the peremptory challenge to the juror II. (a) If, after the improper disallowance of a challenge for cause, the prisoner withdraw his plea of not guilty, and plead guilty, that would cure the objection, because the whole record must be looked at, and not amerelv isolated part of it; for one part of it may be controlled by another; and that which may be a cause of exception in one place, may be no exception when read in connection with the rest of the record, (b) . A prisoner, arraigned for utterhig forged paper, has a right to challenge peremptorily, on the trial of a preli- minary question, to the elfect that the prisoner had been (a) Whetan v. lle(j., 28 U. (!. CJ. B. 2; attinnorl on ai)i)oal, ib. 108. (ft) Whclan V. Ilq,., 28 U. C. Q. B. l()4, per A. Wilson, .]. CIS CRIMINAL LAW OF CANADA. extradited Iroin the United Stat(^8, on a charge ol' i'or- gery. (a) It is a good cause of chall(jnge to a juror, if he has said he would hang the prisoner, if on his jury. (A) A Statute directed a jurors' hook to be made up in each year, for use in the y(;ar following, and declared that such book should bt; in use from the lirst of January, for and during one year. In November, 18<>r>, at a sitting of a special commission, a pan(^l was returnc^d from the then (existing jury book. The jurors were not then called, but the sitting was duly iidjourned to the IDth of January, 18fJG, at which time the trial took place, when the jurors named in the return of Novemb. ; , yi ^ - • 'i ,>^^ c) Mnlvnkii V. lit'i-, li. K. .S K. k 1. App. 30(). ' d) Whelan v. Itcy. i!8 IJ. C. g. IJ. .'54. e) /6. by. . - ' . ' . ! i- - -i- - - - ;-'-■'■ - rv 1 )>•■•■ ■ PIiA(JTICK. G19 swearing of the thirteenth would be void, and the other twelve would constitute the jury, (a) Though a challenge has been improperly disallowed, yet, if no improper person gi^t on the jury, their verdict, when non«» of them are disqualilifd, supports the judg- ment on the indictment, {h) If, after a prisoner's challenge to a juror is disallowed, the Crown then challenged him, and the prisoner ob- jected to it, unless the Crown shewed cause, in the llrst instance, or the prisoner contended the cause shewn by the Crown was insuffioi(»nt, this would be a consenting to the juror as a proper juryman to be admitted to try the cause, or a waiv<'r ol' all o})jection to him, and the prisoner could not, after that, revive his own original exception, (c) Ho, iihi'Y the improper disallowance of a challenge to one juror, the prisoner would be bound to renew his exceptions sp«'(ili(;ally to any jurors called afterwards, in order to establish a grouiul of error, or cause of complaint as to them, (d) It is settled law that, unless ji jurymim is challenged before he is sworn, he cannot be challenged afterwards, exci'pt by consent. (?) A prisoner cannot challenge at all until a full jury appears, and he must cha]leng(^ to the array before he chall(;nges to the polls. H(^ must abide by his peremp- tory challenge when he makes it, and cannot withdraw it, and challenge anoth(;r juror instead. The prisoner must also shew all his caus(;s of objection before the Crown is calKid upon to shew cause. The party begin- (a) Idv. V. (.'im/Ur, l.< U. ( !. C. ]'. ;{();{, jut Draprr, ('. J. {!>) Whvlan v. liiy., 2H U. C. Q. \\. i;}7. ijcr J)iapcr, C. J. (f) Jl>. M-4. (d) lb. «;i, \,i;r A. Wilnon,J. ' {e) Itfti. V. ConHer, VA U. (J. V.. V. .301, per T)raper, ('. J. ; Riv- v. Mellw, 4 Jur. N. S. 211. 620 CRIMINAL LAW OF CANADA. ning to challenge must finish all his challenges before the other begins, and all challenges of the same kind and degree must be suggested against the juror at the same time, (a) When there are two prisoners for trial, it would not be ground of error if the Judge directed one of them to challenge first, and to make his peremptory challenges before his challenges for cause, and then allow the other his challenges in like order. In such latter case, on a juror being called against whom there was a cause of challenge to the favour, he would not be challenged peremptorily, but would go into the jury box, to abide the result of all the challenges ; and, when the peremp- tory challenges were through, those for cause would be proceeded with, and the juror would then be reached. (6) When a prisoner, on his trial, assumes to challenge a juror for cause, it is competent for the Crown either to demur or to counterplead — that is, set up some new matter consistent wHh the matter of challenge, to vacate and annul it, as a ground of challenge, or to deny the truth, in point of fact, of what is alleged for matter of challenge, {c) The latter mode is the only one calling for the intervention of triors, fc?) ■■ • > . A writ of error lies for every substantial defect appear- ing on the face of the record, for which the indictment might have been quashed, or which would have been fatal on demurrer, or in arrest of judgment. A writ of error is, therefore, the proper remedy lor certain sub- stantial defects appearing o/? the face of the record, (e) ■ A court of error is confined to errors appearing on the face of tlie record, and cannot exercise an appellate juris- (a) Wlielan v. Heg., 28 U. C. Q. B. 49. . , ' • (6) /.;. 47 50. , V, ,, ,, (cj Whelan v Reg., 28 U. C. Q. B. 168-9, per Gwynne, J. ■ . ^ ,wv ^-.. (d) lb. .,. .»'\ .. , (e) Duvat' dU Barbinas v. Reg., 14 L. C. R. 71. PRACTICE. • 621 diction, and enquire into the facts of the case, or, for any purpose, consider a matter not appearing on the re- cord, (a) Unless there be manifest error on the face of the record, it is the duty of the Court to affirm the judgment, {h) The matter is to be decided as a strictly legal proposi- tion, and, no consideration of the effect which the deci- sion may have upon the parlies, will be permitted to be taken into consideration, to mould the judgment of the Court by the exercise of discretion, (c) A w^rit of error will lie where a venire facias for the summoning of jurors is addressed to improper parties. ( ' There is no case in which the discretion of a Judge, exercised on a mixed question of law and fact, has been reviewed in error, {g) -; ■/ • v , , , It would seem that, when a Judge has a discretion to do or omit to do a particular thing, his judgment, in the (a) Duval dit Barbinas v. Eey., 14 L. C. R. 79, per Duval, C. J., 75, per Meredith, J. (b) Whelan v. Reg., 28 U. C. Q. B. 139, per Z)rrtf cr, C. J. (cj lb. 94. (dj Beg. v. Kennedy, 20 U. C. Q. B. 332, per Draper, C. J. ; Crane v. Hol- land, Cro. El. 138. Set' also WiUouyhby v. Eyerton, Cro. El. 853. (e) 32 & 33 Vic. c. 29, s. 80 ; Meg. v. Mason, 32 U. C. Q. B. 246. (f) Rfii. V. Mason, supra. "- (gj r^msor v. lieg. L. R. 1 Q. B. 310. 622 CRIMINAL LAW OF CANADA, exercise of that discretion, is not subject to revision in error. Rules of practice or procedure, on a criminal trial, rest pretty much in the discretion of the Judge, and can- not be made the foundation of a writ of error, (a) The right of postponing the hearing and trial of the cause, urged by a prisoner as a ground of challenge, is discretionary with the Judge, and the question is only one of practice or procedure, and, therefore, not examin- able in error, (b) A challenge to the array overruled would be a ground of error, if the party did not afterwards challenge to the polls. (6') The improper granting or refusing of a challenge is alike the foundation of a writ of error, (d) The proceedmgs, on a rule for contempt, on the Crown side of the Court of Queen's Bench, do not constitute a criminal case within Con. Stat. L. C, c. 77, s. 56, and, as a writ of error does not lie, at common law, on an adju- dication for contempt, for it is a judgment in immediate execution not examinable in any other tribunal ; there- fore, a writ of error does not lie wdth resx:)ect to judg- ment rendered on such a rule, (e) For an improper award of a venire de twvo, a writ of error lies for the subject. (/) The proper proceeding to reverse a judgment of the Court of Quarter Sessions is by writ of error, not by Hab- eas Corpus and certiorari ^ as in the case of summary con- victions, fg-^ No writ of error lies upon a summary conviction, and (a) Wiiisor V. Beg., L. R. 1 Q. B. 316 ; WheUin v. Reg., 28 U. C. Q. B. 1 ct sea. (b) lb. 133. (c) lb. 61, per Wilson, J. (dj Jb. 93. fe) Uammy v. Beg., 11 L. C. J. 158. (f) Reg. V. Charlesworth, 9 U. C. L. J. 51, per Crompton, J. - ' ■ i (g) Reg. v. Powdl, 21 U. C. Q. B. 215. : . ,\ PRACTICE. G23 it only lies on judgments in Courts of Record acting ac- cording to the course of the common law. (a) A proceeding by writ of error is the more formal method of getting rid of an erroneous judgment, but, as the writ lies for error in the judgment where the judgment is void, perhaps it would not be the proper course, {h) After judgment, the only remedy is by writ of error. (c) But error only lies on a hnal judgment, {d) Error, as distinguished from appeal, will lie in a crim- inal case, from the Court of Error and Appeal to the Queen's Bench, (e) The rule prevailing in civil cases that, when the error is in fact and not in law, the proceedings may be taken in the same Court, but, when the error is in the judg- ment itself, error must be in another and superior Court, extends also to criminal cases. Therefore, the Court of Queen's Bench for Ontario has no authority, in criminal cases, either at common law or by Statute, to issue its own writ for the review of its own judgment ujion error in law, returnable in a Superior Court. But the Court of Error and Appeal ibr Ontario has full power to issue a writ of error in criminal as well as civil cases, and, when the error is in the judgment in the Court of Queen's Bench, the writ of error should be issued out ot the Court of Error and Appeal. The writ may be, as nearly as possible, in the form of a writ of ap- peal given by the orders of the Court, as published in 1850. (/) A writ of error cannot be granted without the Jiat of the Attorney-Greneral. {g) (a) Ramsay v. Reg., 11 L. C. J. 166. (b) Reg. v. SulHvan, 15 U. C. Q. B. 198. (c) See Reg. v. Mason, 29 U. C. Q. B. 435, per Wilson, J. : Reg. v. Smith, 10 U. C. Q. B 99. CdJ Ex parte Blossom. 10 L. C. J. 42, per Badgley, J. (e) Whelan v. Reg., 28 U. C. Q. B. 108. (/) lb. (g) Notman \. Reg., 13 L. C. J. 255, See also WMan v. Reg., supra. 624 CRIMINAL LAW OF CANADA, If, in an inlbrmation of quo warranto, the Attorney- General have granted his fiat that a writ of error may issue, the Court will not interfere, the hrst being conclu- sive, (rt) The Attorney-General (or, in his absence, the Solicitor- General) alone can authorize the issue of a writ of error, and he cannot delegate that power to another. Where, therefore, a writ of error was issued and signed by Thomas Iv. liamsay, acting for, and in the name of, Her Majesty's Attorney-General, and not by the Attorney- General himself, it was held illegal and void, {b) On error, from the Court of Queen's Bench for Ontario to the Court of Error and Appeal, the party is at liberty, in the Court of Error and Appeal, to assign new errors, in addition to those laid in the Court of Queen's Bench, {c) It has been already shewn that a Court of Error can only consider matters appearing on the face of the record. It follows, therefore, that matters which cannot be raised upon the record are not examinable in error. The plead- ings, the proper continuance of the suil and process, the linding of the jury upon an issue, in fact, if any such had been joined, and the judgment are the only matters which can be raised upon the record, with a \\^i^N to error. As a bill of exceptions does not lie in a crim- inal case, there is, therefore, no mode of causing the rul- ings of the Judge, upon questions of evidence, or his directions to the jury, to be made part of the record, and, consequently, such rulings or directions of the Judge cannot be reviewed in error, ^^y • ", •jf'v/'/ a In this case, jt was alleged that, in the course of the trial, a medical witness was ordered to make an analysis (a) Reg. v. Clarke, 5 U. C. L. J. 263. ""' *' ' ^ '* " '"' ' ''^ ''^^ '^ ' ' ^ (h) Dunlop V. Eey. 11 L. C. .T. 271. (c) See Whv/au v. Itecf., 28 U. C. Q. B, 110 : Bcf/. v. Mason, 32 U. C. Q. B. 240. (dj Duval (lit Barbinaa v. Rey., 14 L. C. K. 72-4, per Meredith, J. .;■ ' > . •.'■ i >...';;; -s-'l ■'■.V.', ■" ' !.' •\ ■ t^y^ '■■/'. '-'■_ PRACTICE. 625 for the information of the jury ; that he had done so, and made a report, but that the report so made was not placed before the jury, as it ought to have been, and that, there- by, the prisoner was deprived of the advantage of impor- tant evidence in his favour : — Held, th^t, as the report could not have been submitted to the jury, except as part of the evidence, and, as neither the evidence, nor the ruling of the Judge in relation to it, nor his directions to the jury, can be brought under the consideration of this Court by a writ of error, that the plain tiif in error had not a right to have the record amended, so as to place be- fore this Court the said report, and the entries in the register of the Court below respecting it. Nor could the plaintiff in error cause the record to be amended, so as to shew whether the Judge, who presided at the trial, wrote the notes of the evidence himself, or caused them to be written by another person ; nor so as to shew what pre- cautions were taken for the safe-keeping of the jury, whilst deliberating upon their verdict out of Court, for the pleadings in a cause, and the judgment pronounced thereon, form the only grounds of the record returned in obedience to a writ of error, (a) It need not appear, on the face of the record, that the jury, when they retired at the Judge's charge were in the custody of sworn constables. An objection on this ground cannot, therefore, be reviewed in error. Though the improper allowance or disallowance of a challenge is ground of error, yet, strictly speaking, there ought to be an answer in law, or in fact, to the challenge, and a judg- ment upon the issue raised. When the proceedings on a challenge are regular, they may be made a part of the record, and may be examined in error. (6) _:. .^ -.\^ ' I (a) Duval dit Barhinas v. Beg., 14 L. C. R. 52. (6) lb. 74-5, per Meredith, J. NN 626 CRIMINAL LAW OF CANADA. If it is desired to take the opinion of the Court on tlie rulingH of the Judge, or his directions to the jury, the proper course is to apply to him to roscrvo a case, under the Statute, for the opinion of the Court, (a) It is the common understanding in the profession that a prisoner can consent to nothing, {b) To purge error it would seem that a prisoner cannot consent that the evi- dence of witnesses given on a I'ormer trial should be read in place of a new examination of the witnesses, although the witness was present in Court, and was sworn and heard, his evidence read over, and the parties were told they were at liberty further to examine, and cross-exa- mine him, {c) although this course has been adopted in several cases, (d) with the consent of the prisoner, (e) A prisoner can consent to nothing manifestly irregular, as that his wife should be examined as a witness, or that the witnesses should be examined without being sworn, or that admissions made by his attorney to the opposite attorney out of Court should be received as evidence in the cause. (/) A prisoner may consent to withdraw or release his challenge, altogether, or to accept a juror, on his challenge being overruled. He might consent to secondary evidence being given, and it would seem, although no notice to produce had been served. He might consent to with- draw a plea in abatement, and he may withdraw his plea of not guilty, and plead guilty. So he might consent that the jury should take with them plans or writings not under seal, which were given in evidence, (g) a) Duval dit Barhinas v. Jtey., 14 L. ('. R. 74, per Meredith, J. 6) Bey. v. Bertrand, L. R. 1 P. C. App. 534, per Hir John T. Coleridue. , c) lb. 520. ... ' d) Bex V. Streek, 2 0. & P. 41.3; Bex v. Fotter, 7 C. & P. 495. j .», -. e) Whelan v. Bey., 28 U. C. Q. B, 52, per A. Wilton, J. [ ;/) 76.52. , -v. ^n .'., y) lb. 53-4, per A. Wilton, J. ., , ., , , ,, .. ., ■ ,. -■-■ ." ' ( Practice, n- , , G27 A concilium has been granted for the argument ol' errors in the Court of Queen's Bench Y«) It would seem that the Court may direct Crown cases to stand on the new trial paper for argument with ordi- nary suits between party and party. (6) If a juror against whom there is a good cause of chal- lenge is sworn, and sits on the jury, there would be a mis- trial, and the proceedings would amount to error, and on writ of error brought, the Court would direct a venire de novo, if the party was not allowed to challenge for cause, and was directed to challenge peremptorily, {c) A mis-triol vitiates and annuls the verdict, in ioto, and the only judgment is a venire de novo, because the prisoner was never, in contemplation of law, in any jeopardy on his iirst trial, (d) The distinction between a venire de novo, and a new trial, is i hat the former must be granted, in respect of matters appearing upon the record, but a new trial may be granted upon things out of it. (e) It seems that a venire 4e novo can be awarded in a case of felony on a defective verdict. (/) Unless, there is such an irregularity as to annul all the proceedings on the record, subsequent to the award of the jury process, and render the first trial an absolute nullity, a venire de novo should not be granted, {g) There is no authorily that an abortive trial prevents a venire de novo in a case of misdemeanor (A) ; and if a trial proves abortiA'e a venire de novo may be awarded in a case of felony as well as misdemeanor, [i) •• . ; ^ (a) Whelan v. Rtp. 28 U. C. Q. B. 15. (6) /Jey. V. 6"inno«, 27 U. C. Q. k 639. ^1 i . ;■..••.*. (c) Whelan v. Met;., 28 U. (J. y. B. 51-91. Id) lb. VA7. ': ' >■ c'. .••, 1 u,. (e) Reg. v. Kennedy, 2 ThoniBon, 215, per Bliss, J, if) Winsor v. Ikff., L. R. 1 Q, B. 319, pel Blackburn, J ; Campbell v. Rea., 11 Q. B. 799 ; Gray v. Reg. 11 CI. & F. 427. ' ^ ^^ ' («/) Reii. V. Kennedy, supra, 223, ner Wilkins, J. \h) Rei/. V. C'harlemuorth, 9 U. C. L. J. 51. (i) Winsor v. Key., L. K. 1 Q. B. 319. 628 CRIMINAL LAW OF CANADA. A verdict, on a ct^jge of felony, has been held to be a nullity and a venire de novo awarded in cases of defect of jurisdiction, in respect of time, place, or person, or where the verdict is so insufficiently expressed, or so ambiguous that a judgment could not be founded thereon, (a) A prisoner having been tried and convicted of a capi- tal felony, by a Court of Oyer and Terminer, in New South Wales, and sentence of death passed, and the judgment entered upon record, an application was made to the Supreme Court, sitting in Eanc, for a rule for a venire de novo on an affidavit which stated that one of the jury had informed the deponent that, pending the trial, and before the verdict, the jury having adjourned to an hotel had access to newspapers which contained a report of the trial as it proceeded, with comments thereon. The Supreme Court made the rule absolute, considering that there had been a mis-trial, and ordered an entry to be made on the record of the circumstances deposed to, that the judgment on the verdict should be vacated, and a fresh trial had; on appeal to Her Majesty in Council -.-Held by the Judicial Committee that a venire de novo cannot be awarded after verdict upon a charge of felony, tried upon a good indictment and before a competent tribunal, where the prisoner has been given in charge to a jury in due form of law empanelled, chosen and sworn; secondly, that if a venire de novo could be awarded upon an appli- cation, by way of error on appeal, the proceeding in the Supreme Court, was defective in form, and not warranted by the suggestion entered on the record, and, therefore, thirdly, that the order for vacat'ng the judgment, and for a venire de novo must be set aside. (6) The application for a venire de novo, in this case, was (a) Beg. v. Murphy, L. R 2 P. C. App. 548, per Sir Wm. Erie. (6) lUq. V. Murphy, supra, 536. PRACTICE. 629 considered as an attempt to obtain a new trial by the exercise of discretion, and the principal ground of the decision was that a new trial could not be granted in a case of felony, (a) A sentence of death need not be conformable to the English Act, 23 Geo. 2, c. 17, s. 1, and a sentence in these words " that you be taken to the place of execution at such time, as His Excellency the Lieutenant-Grovernor may direct," is sufficient. (6) A prisoner, who has been convicted of felony at the As- sizes, may be brought up into this Court to receive sen- tence, (c) No warrant is required to execute a sentence of death, for, in contemplation of law, there is a record of the judg- ment which may be drawn up at any time. It is not ne- cessary that a Judge of a criminal Court should sign any warrant or sentence directing any punishment, (d) In Nova Scotia, the warrant for execution issued from the Court, and the time and place of execution was endorsed on it by ihejiat of the Governor, (e) In general, there can be- no costs allowed in Crown cases, (f) But the rule that the King neither pays nor receives costs, is not universal, nor inflexible, (g) On putting off the trial of an information for penalties at the instance of the defendant, the Court will make payment of costs a condition in the same way as in civil cases, {h) When a defendant, on an indictment for per- jury, puts off the trial, he must pay costs on the principle (a) See R^. v. Bertraitd. L. R. 1 P. C. App. 520. (6) Reg. v. Kennedy, 2 Thomson, 218. . PRACTICE. . ' ; . 631 cers, to prosecute or present. The defendants were in- dicted before the General Quarter Sessions of the Peace for a nuisance, in obstructing a highway, and they re- moved the indictment into the Court of Common Pleas, where they were afterwards, severally, convicted and judgment given against them. A motion was made for a rule absolute ordering the costs of prosecuting the in- dictment to be taxed by the master, and that the said costs should be allowed to the Municipality as the prosecutors of the indictment, and paid by the said defendant to the said Municipality. The Court refused the rule, and laid down that the regularly established practice was to issue a side-bar rule to tax the costs, and when the side-bar rule is obtained, the officers do not proceed to taxation until notice has been given to the bail. - .* The question, who, as prosecutors, were entitled to the costs might be discussed on a motion to set aside the side bar rule, when both parties are before the Court, or it might come up on opposing a motion for an attachment, for non-payment of the costs taxed after demand made, as required by the Statute, (a) The defendant, after a de- mand of costs, under a rule of Court, by the plaintiflfs attorney, paid the amount to the plaintiff. The attorney, afterwards, obtained a rule for an attachment, for non- payment of the costs, but, before the attachment issued, was informed of the payment to the plaintiff : — Held, that he was not justified in, afterwards, issuing an attach- ment for the costs of an affidavit of the demand of pay- ment, and the costs subsequently incurred. (6) The Statutes authorizing the granting of new trials, in criminal cases, have been repealed, and now, throughout (a) Beg. v. G; PFiCTICE. n>i ! 633 at a Court of Oyer and Terminer, it seems the indictment may be removed into the Queen's Bench, and sent down to trial on a nisi prius record, with a view to applying for a new trial, in the event of an adverse verdict, (a) It seems, also, the indictment, if tried at the Sessions, or at a Court of Oyer and Terminer, might be removed into the Queen's Bench after verdict, but before judgment ; and that the proper course, at the trial, would be to apply to the Judge to stay the giving of judgment until the in- dictment could be removed, {b) When the record is on the civil side of the Court, all the incidents of a civil cause attach to it. (c) Thus, when the indictment has been preferred in the Queen's Bench,^ or has been removed into that Court by certiorari, and is sent down to be tried at nisi prius, as all the incidents of atrial at nisi prius attach to it, a new trial maybe granted after conviction, (rf) - - ... ,, .? i It would seem that the foregoing remarks as to new trial, when the record is tried on the nisi prius side of the Court, can only hold, if at all, when the charge m of misdemeanor. When the charge is of felony, no new trial can be granted, though the indictment has been removed by certiorari, and sent down to trial at the assizes, on a nisi prius record, (e) X):ki imnol) .« t«,iM*?»t Many cases were decided, under the 20 Vic, c. 61, while it was in force. It only authorized a new trial on any point of law, or question of fact, raised at the trial (/) It was, at least, extremely doubtful whether affidavits (aj Reg. v. Lafferty, 9 U. C. Q. B. 306. (h) Reg. V. Smith, 10 U. C. Q. B. 99. See also Beg. v. Gzowski, 14 U. C. Q. B. 591. (c) Jteg. V. D' Aouat, 10 L. C. J. 223. \d) S. C. 16 L. 0. R. 494-5, per Meredith, J. See also Arch. Cr. Pldg. 178. (e) Beg. v. Bertrand, L. E. 1 P. C. App. 520, overruling. Beg. v. Scaife, 17 Q. B. 238. (/) See Gray v. Beg., 1 E. & A. Eep. 501 ; Beg. v. Crazier, 17 XJ. C. Q, B. 275 ; Beg. v. Oxentine, 17 U. C. Q. B. 295 ; Beg. v. HamJbly, 16 U. C. Q. B. 617 ; Beg. V. Chubbt, 14 U. 0. C. P. 32 ; Beg. v. Finkle, 15 U. C. 0. P. 453. 634 CRIMINAL LAW OF CANADA. , Special leave to appeal from a conviction of a Colonial Court for a misdemeanor having been given, subject to the question of the jurisdiction of Her Majesty to admit such an appeal, and it appearing, at the opening of the appeal, that, since such qualified leave had been granted, the prisoner had obtained a free pardon, and been dis- charged from prison, the Judicial Committee declined to enter upon the merits of the case, or to pronounce an (a) Re M'Dermott, L. R. 1 P. C. App. 260. (h) The Speaker of the Legislative Ataemhly of Victoria v. Olasi, L. R. 3 P. C. App. 560. (c) George v. Beg., L. R. 1 P. C. App. 389. id) Re Wallace, L. R. 1 P. C. App. 292-3. (6) L. R. 2 P. C. App. 538. 038 CRIMINAL LAW OF CANADA. opinion upon the legal objections to the conviction, the prisoner having obtained the substantial benefit of a free pardon. They, accordingly, dismissed the appeal, (a) It seems the Privy Council would entertain an appeal' from the Court of Error and Appeal for Ontario, without express leave of such Court. (6) No appeal to England is expressly given by our Stat- utes, in criminal cases, but several appeals to the Privy Council have been made in the Dominion. (a) Levien v. Heg., L. R. 1 P. C. App. 536. (6) Whelan v. Beg., 28 U. C. Q. B. IsC, per DroMer, C. J. ; Naiker v. Yetlia,. L. R. 1 P. C. App. 1 ; Ko Kkine v. Snadden, L. R. 2 P. C. App. 50. i;w... V-' •" ' 1 ■h ■•+ f¥*. •W'S 'i':* m i-isoftiiitDrfD;. :-::)^(ffA-Xj u ■'til \)3 i^> Ji)/^ ■T'-- T, — <-,-,. \ , ,' , 1.. / ,; J. 1- ■ iGlTiK) tiUX88t>C^ V,' Ov"' ■'•■'•• f;'/ J •}*:) :•! 'i' •''.>• ^''tluiii if Hi) HQqu It^' ■■' INDEX. ■ JiJOiiJiv; ,or; /;•./.> 1 'i-'. ' ' '"^ 'O -! ■ '- ' ■ PAQK ABANDONING CHILD-(«ee Child) 421 ABDUCTION— • .- , ^ r '■ Of girl under sixteen 268-9^ ABORTION 249-2G4 ABSENCE OF PRISONER— When immaterial COT ACCESSORIES— Before and after the fact 102 Only in felonies 102 In misdemeanors all are principals 102 ■■ May be to new statutory felonies 102-3 No accessory to felony unless felony committed 1 03 Manslaughter, no accessories before the fact in 103 But may be after the fact 103 ■ ''■ OflFence of accessory distinguishable from that of principal in second degree 103 What authority or procurement renders man liable as 103-4-5-6 Distinction between civil and criminal cases 1 04 Procurement, how eflTected 106 Consequences if authority not pursued 106 After the fact, what constitutes 107 Wife not accessory for receiving her husband 106 Accessories ralieved from responsibility when principal does not pursue authority 107 Accessories to felonies created by Statute 106-7 Act as to accessories 107-8 ACCOMPLICE— (see Evidence) ADJOURNMENT— Of trial, when granted 608-9 Of Sessions (see Sessions) 640 INDEX. PAGE ADMINISTERING POISON 249, BO, 64 ADMINISTRATION— (see Summary Administration of Criminal Justice) ADMIRALTY COURTS— Jurisdiction of (see Piracy) 122 ADVOCATE— (see Attorney) AFFIDAVITS— Disingenuously drawn up 643 Receiving under Act as to prompt and summary administra- tion of Criminal Justice 426 On application for writ of Habeas Corpus 426-7 AGENT— Liable for act done under authority of his principal 104 AGGRESSIONS— Lawless by subjects of foreign countries at peace with Her Majesty ^ 413 et seq. 31 Vic, c. 14, as tb 413-4 British subject by birth may become citizen of foreign state 414-6 May be so treated at option of Crown 416-6 Evidence of being sub j ect of foreign state 416-6-8 Of entering Canada with intent to levy war 416-7-8-9 Person acting in any character is liable 417-8-9 Evidence of engagement several hours before arrest of prisoner is admissible 410 Duplicity inindictment 419-20 No objection of corpus delicti the same in all Counts 419-20 Offence of foreigner and subject is different 420 28 Vic, c. 1, as to repressing outrages on frontier 420-1 AMENDMENTS— Of indictments 603 AMERICAN AUTHORITIES- Not binding here 607 ANNOTATIONS— Of miscellaneous Statutes 410e<«eg. . INDEX. 641 ANNULLING CONVICTION— ' • *^ 'f ' ^^ ' ' - ' ' * ' Legal effect of 524 APPEALS— • In cases of summary convictions 545 , In matter not a crime , 545 Procedure on 545-6 Recognizance to try, form of 546-7 Notice of appeal 547 Usually heard first day 547 Waiver of right to appeal 547-8 Jury, trial by 548 Adjourning appeal 549 Reinstating 549-50 Evidence on 550 Enlargement, what it waives 551 Costs on 551-2 Allowing vrithout affidavit 552 From Sessions to Superior Courts of Law 554-5 To Superior Court when question reserved at Sessions or Court of Oyer and Terminer 604 J Rules as to must be complied with 604-5 To Privy Council, when allowed 635-6 > ; ,When leave graated, and on what terms 637-8 APPLICATION— To Crown for pardon 635 APPRENTICES AND MINORS— Act Con. Stat. U. C, c. 76, as to 429 When apprentice is minor, articles must be executed by some one on his behalf 429 Absolute imprisonment not authorized 429 ARRAY— When quashed 597 Directing to Coroner 618 ARREST OF JUDGMENT— When case reserved 606-7 When indictment on a Statute contains charge of offence at common law 606 00 642 INDEX. PAOE ARREST OF JUDGMENT (Con^mtterf;— , u my ' ,- t^ Objections on motion, how limited 606 Presence 01 prisoner may be waived GOT ARREST— By Magistrate, Constable, etc., et seq. {see Manslaughter) 256 ARSON— Actual burning must be 375 Another, house of 374-5 Attempt to commit 380 Building, what is 377 Burglary, decisions as to apply to arson 375-6 Burning must be actual 376 And malicious and wilful 375 Construction of Statutes ., ." 374-5 Definition 374 Evidence of intent to defraud when man sets fire to his own house 378 That house insured 480-1 What is sufficient 37^ Goods, setting fire to 380-1 In own use, with intent to defraud 381-2 » Grain, setting fire to stack of 382 Indictment for setting fire to own house 378 Must allege intent to defraud 378 Surplusage in , 379 Arson, term of art 380 Intent to defraud inferred from act itself, when house of third person set fire to 378 Act must be wilful 378 When own house set fire to, musk be actual evidence . . . 378 What is sufficient 379-80 Jury, finding of, conclusive 377 Malicious burning must be 375 Married woman not liable for setting fire to house of husband 379 Negligence in burning 375 Occupied, house must be 376 Must be intention of returning 377 Owner of house, whether liable 374-5 Returning, must be intention of 376-7 INDEX. I 643 PAQK AR^O'S (Continwd)— ,;'•> ,; Need not shew that complainant prayed Magistrate to ,>.;v proceed summarily 280 Nor that assault made unlawfully 280 Correction, moderate, is justifiable (see Master) 277 Crime, including assault, may be conviction of assault, on indictment for 272 But the crime must include assault 272 And the assault must conduce to the death 272-3 Indictment need not charge assault in terms 273 Definition 269 Force, excess of, not justifiable 276-7 Indictment, for carnally knowing girl, may be conviction of assault on 270 When indictment charges common assault 271 Need not charge assault in terms 273 When should set out means uced to inflict grevious bodily harm 274 f / 644 ; INDEX. PAGE .A ASSAULT AND BATTERY (Conthwed)— <, For inflicting grevioiis bodily harm 274-5 '<■'.. For shooting with intent to do 271 Charging aggravated assault 278 Intention necessary to make act assault 209-70 Justification of assault in self defence, what amounts to 276-7 Of shooting with pistol 276 No justification of excessive force 279 Maliciousness, necessary in assault, under 32 & 33 Vic. , c. 20, s. 19 276 Master, moderate correction by, is justifiable 277-8 Misdemeanor, assault's '^79 Punishment of 279 Provocation, words of , cannot amount to assault 276 School teacher 277 Servant, moderate correction , of j ustifiable 277-8 Sessions have power to try 279 What is assault 270-1-4 ATTACHMENT— Against Sheriff 544-6 Against Attorney 645 ATTEMPTING— To commit misdemeanor 84 To commit felony 85-7 ATTORNEY— Charging costs not authorized by law 645 Cannot act as advocate in Court of Sessions 678 No right to appear before Justices in charges of indictable offences 678 But may in case of summary convictions 678 AUTREFOIS ACQUIT— When a good plea in bar 420-496 BAIL— Principles, on which granted 583 Not when ofifence is serious and evidence strong 583-4 Probability of non-appearance 583 On charges of penury arson, larceny, murder, treason, felony and misdem .^or 684-5 INDEX. 645 PAGE BAIL {Continued — On application for, Court may look at information and remedy 'I commitment . 684 i' Lapse of yeai- from imprisonment 584 ,'. If prisoner about to die 584 : '^' Accessories after the fact 585 ■ > Persons, in execution by legal process 586 Obligatory, in case of misdemeanor as well after as before indictment found 585-6 .Ir. After two trials and discharges of jury for disagreement 586-7 > One Justice may bail in misdemeanor, but not in felony 586-7 • i When case reserved, Court which tried prisoners must bail... 587 ■A One Assize having passed over without committal of prisoner. 587 ,,;.»' Forfeiting, after plea of not guilty 587-8 ' ' If offence bailable may be relieved at any time, on giving ,'< proper sureties , 588 Practice as to entering up judgment on the recognizance 588 ■j^ Relief from estreated recognizance 588-9 When Judges of Queen 's Bench should estreat 589-90 Rescinding order for bail 590 ;i! When better sureties may be ordered 690 ; = , , Application made on affidavits entitled in the Queen's Bench 590 ■ I'.'i- Certifying commitment, information, etc 590 BARRISTER— • ' Not allowed at Coroner's inquest 539 Motion for Criminal Information mitat be made by {see Coun- sel) 581 BATTERY— (see Assault) BIGAMY— Absence of first wife, when defence 162-3 After absence for seven years, prosecution must prove that prisoner aware of existence 163 Banns, when marriage contracted by valid 165 Marriage by in, case of minors 165-6 Common law of England, as to marriages introduced 21-2,164 Consent, age of • 167-8 Marriage, before age of, must be ratified 168 England, Common and Statute law of, introduced 21-2,164 646 INDEX. ^ P PAGE BIGAMY (Continued)— Evidence — ■■ Extract from register of marriage 161 !>"r. .. .. Of reputation will not suffice 161-2 ii^<- .,.,. Must be direct proof 161-7 (?/'•'' . Admission of fi'-at Marriage sufficient 162 n,-.'". ... First wife, not admissible till proof of first marriage 162 •-• ' What suflScient of marriage celebrated in State of New i>^n" ..' York 152 7 ''^' Onus of proof 163 f^acigri /acias, when may issue 168 "•^S First marriage must be valid 160 " Foreign Country, when marriage in will be held invalid here 167 '• Foreign jurisdiction, statute extends to bigamy committed in 168 Indictment for bigamy committed in States 168 ? Jewish marriage, written contract not essential to validity of 167 ? Licence, marriage by, when parties under age 164-5 ■' Marriage, first must be legal 160 Second need not 161 Laws in relation to 164 By man with sister of deceased wife 165 !"• In Ireland 167 Jewish 167 ' , . Of Squaw and Lower Canadian 167 y :' In foreign country, by persons not British subjects 167 Minors may marry by banns 165-6 Ontts of proof , when on prosecution 163 Presumption that person not heard of for seven years is dead 164 But not that he is living 164 Second marriage need not be valid 160-1 Sister, marriage with, of deceased wife 166 Soldier, convicted of bigamy not discharged from military service 168 Statutes 32 & 33 Vic, c. 20, s. 58 160 4 Ed. 6 Stat. 3, c. 5 160 1 Jac. 1, c. li.... 160 20 Geo. 2, c. 33, 164 2 i; 29 Vic, 0. 64 166 5&6Wm. 4, c 54 165 What is bigamy 161-3-4 INDEX. 647 t PAOE BIGAMY (Continued)— ', t-y. Wife, first not admissible as witness 162 Absence of first 162 ' Deceased, marriage with sister of 165 BILL OF EXCEPTIONS— • . , ,, ,. , Does not lie in criminal cases 489 BIRTH— (see Concealing Birth). liii.j BURGLARY— Breaking necessary 281 ."'' Must be actual 281-2 ''^ Byfraud 283 Chimney, entrance by, is burglary 283 ' Conspiracy, entrance by, is burglary 283 •' Daytime, no burglary in 285 Only housebreaking 286 Definition 281 • • Dwelling-house, what is 284 Formerly included out-houses, etc 284 ** Most be inhabited 284 Entering necessary 281 By open door or window 282 '"i^ Other cases of 282 ,;?-'t;.. By chimney 283 By conspiracy 283 Til night 284 Own house 286 Fraud, breaking by 283 Inhabiting house necessary 284 Occasional absence immaterial 284-5 Intent must be to commit felony 286 To commit trespass insufficient 285-6 Night, burglary can only be committed in 285 When it commences and ends 286 Breaking and entering need not be both in same 285 Own house, man cannot commit burglary in 286 Roof, entry through hole in, not burglary 283 Statutes 284-5-6 Time of committing 286 648 INDEX. PAGE BURGLARY (Contimied)— What is burglary 284 CAPTION— Of record of conviction may be amended 593 CERTIORARI— Whether it can issue in vacation 534 When granted, of course 661-2 When Court has discretion 561-2 Must be obtained on affidavit 561 What words in Statute take away right to 662-3 None after verdict or judgment, or acquittal 663-6 To remove order, quashing conviction on appeal to Sessions 563 ' When conviction affirmed 564 * When imprisoned for contempt of Court 564 ■;'. • Mere irregularities not sufficient 564 ' Difficulties in point of law 566 What proceedings may be removed by 564-6-6 ''■ Only substitutes superior for inferior Court 56ft Application for should be made in first terra, or within six months after conviction 666-7 '.': This rule does not apply to Crown 567 L Notice to convicting Justice 667-8-670 ,;; And to Chairman of Sessions 568-9 'u No notice necessary when writ obtained by private prosecutor 569 Application for should be by summons 569 Renewing on amended materials 569 Entitling affidavits, rules, etc 669-70 Addressing writ 570 Serving 570-1 Quashing conviction on return to 571 Judgment on 571 Return of notice of motion for 671 Return to by Justice 572-3 Full faith and credit given to 672 If material evidence omitted 672-3 Returning conviction 573 Under seal 573 Attachment, for not returning 673 Costs 573-4 TNPTsx. ' 649 PAGE < '» CERTIORARI {Continued)— Amending, quashing 574 Compelling petitioner to proceed on 571 CHALLENGES TO JURORS— Over prescribed age, no ground of 594-5 Object of 613 Right of peremptory, by Crown 613 * Right of Crown to direct Jurors to stand aside 613-4 None in misdemeanor except for cause 614 What is ground of 614-5 Re-opening right of 615-6 Prisoner is entitled to challenge for cause before exhausting peremptory 617 But thiti right may be waived 617-9 Peremptory, when allowed 617-8 ' For cause, when good 614-8 Array, challenge to, direction to Coroner 618 Whentobemade 619-20 Rules as to order in which taken 620 Modeof trying right to 620 CHAMPERTY AND MAINTENANCE 154 Common law oflfences 155 Crown bound by law 155 Object and principles of law 155 Sharing in profits essential 158 Suit pending, whether must be 156-8 Titles, selling pretended 159 Act 32, Hy. 8, c. 9, as to 20, 159 Repealed in Ontario 159 What is offence within 159 What is Champerty 155-6-7-8-9 CHEATS AND FRAUDS— Actual prejudice must be 371 Common Law offence 371 Definition 371 False token or mark 371 Indictment must allege that article passed off by false token .. 371 And that selling was by means thereof 372: 650 INDEX. PAOB CHEATS AND FRAUDS (Coniimteti)— . r. - Prejudice must bo actual 371 Private fraud, what is 372 Token must be false 371 CHILD— Unlawfully abandoning and exposing 421 ; , Act only applies to persons bound to maintain 422 Does not apply if child dies 422 I What is oflfence within Statute 422-3 CHOSES IN ACTION— - ' " '"^^ Assignable at Law (see Larceny) 159-GO CHURCHES— ^ ^' ■j Maintenance of good order in 444 Act must be done during divine service 444 t> Commitment without first issuing warrant of distress 444 CIRCUIT COURTS OF NEW BRUNSWICK— '•" '.'••» Jurisdiction of 574 CIVIL ACTION— ^ * Suspension of, when felony diaclosed in evidence 73 Exceptions to rule 76 COERCION— By master or workman 153-4 COINAGE OFFENCEb 109-112 Imperial Statutes in force 110 Indictment should negative lawful authority or excuse 109 And bring oflTence within Statute 111-2 Resemblance to real coin 110 Evidence of possession of other counterfeit coin admissible on indictment 479-80 COMMISSIONS— For holding Courts of Oyer and Terminer 692-3 COMMITMENT— Warrant for indefinite time 631 Need not shew information on oath, but must state place of committing o£fence 531-7 Certainty and precision in 532 INDEX. G51 I'AUB ^^ • > • I , f ' I COMMITMENT (Co/i;.'»nrd)- * -'^ ^ «•'.»•' Court will look at depoBitious ...',.'. ". '. i'.\ i 532-3 Should follow fofirtB 534-6 Signi ng o' by one or two Justices 536 ' Isau'ng o', when di8cr«> in»>ary 536-6 Shoe Id f»9cer.o'n amount of cos- s 536 Executed under Act after reper.l 536-7 Should nbow before whom the conviction was had 537 ' ■' Cannot be withdrawn from gaolor's hands 537 ^* Should Bet foruh day and year 537 And authority of Magisirate 537 Should be in writ' ng 537 Final for want of sureties to keep peace (see Warrant) 537-8 COMPLAINT OF ASSAULT— ,. - ..... V Under 32 & 33 Vic, c. 20, s. 43, cannot be withdrawn 516 Justices w'll be ordereil to hear it 516 Discretion of Jusvice 515 Adjudication and certi6cate 516 What certificale bars 516 .Kivi: Amending inforn^ avion 516-26 COMPOUNDING FELONY ..'.!..';.! . 141 Compromising prosecution, only by leave of Court 141 -2 Informations on Penal Statutes 142-3 Misdemeanor, compounding of, illegal 142 Prosecution, compound irg 141-2 Qui tam action 142 CONCEALING BIRTH— Secret disposition depends on circumstances of each case 262-3 What is 263-4 CONCILIUM— When granted 627 CONSENT— By prisoner 626 CONSPIRACY— Agreement, unlawful, is gist of offence 401-2 Indictable, though no offence without 402 Object need not be unlawful or criminal 402 052 • INDEX. PAOB OONHPIRAOY (roneimwd)— By inomber of copartnenhip 402-3 .1 Common law offence 406 I Concert, proof of 406 ,1 Contract, no objection that money was to be obtained by 408 ■ , Definition 401 • l\ Evidence when joint participation 405 ,, ^ Of concert 405 ; ^ General nature of conspiracy 406 < Of conspiracy to commit larceny 405-6 Execution of purpose not nocossary 402 i Need not be alleged in indictment 404 ,, Felony committed in pursuance of 408 . Gist of ofTenco, unlawful agreement is 402 Indictable, what conspiracies are 406-7-8-9 '' Indictment need not allege execution of conspiracy 402 *•■ • Lies, where object is to effect legal purpose by illegal ' •* moans 403 * '•• ♦ •'• Must shew object or means unlawful 403 *' •■ - When means should be set out 403-4 I ' >.']t*.., Laying property in Municipal Corporation 404 Shewing object of conspiracy 404 Alleging unlawful agreement 404 ' ' "■ ' And unlawful means 406 ' ' " Setting out pretences in conspiracy to obtain money by "'' ' •" false 406 Specifying goods 406 , Inference, conspiracy matter of 405 Joint participation, all liable for 405 Misdemeanor, conspiracy to kidnap is 406 Object need not be unlawful 402 If unlawful, means need not be 403 When felonious, conspiracy not merged 408 One person cannot be guilty of 408 Participation, liability in case of joint 405 Purpose, when corrupt or illegal, indictment lies 403 Two persons must combine 408-9 CONSTRUCTION OF STATUTES— According to common law 410-1 TNDRX. 6.13 PAOB CONSTRUCTION OF STATUTES (Chmtimud)— ' ' >' • AtHriimtivo do not alter common law 412 ConHolidivtud Statutua, Court may rufor to original unactmenta 411 Ex })08t facto, when given effect to 411 (Jenoral words following particular 412 Fdrl materia, SUitutes in, taken as one Act 412 I'enal c(m8truod strictly 410 Hemodtal construed liberally 410 Remedy, construed in advancement of 412 Repeal of former by 8ub8o ■ ^ Money bond is personalty, within 13 & L4 Vic, c. 63 447 ":. .: •:, . --"r'.--' CRIME— Including assault, maybe conviction of assault, on indictment for 272 CRIMINAL INFORMATION— Against officer for misconduct 148-9-50 In case of libel 189 Lies where indictment lies 579 Recognizance to prosecute 579-80 Party applying must waive aU other remedies 580 Notice of the motion must be given 580 Time within which to be moved for 580 Renewing 580* Must be made by Barrister or Counsel 581 Entitling affidavits, requisites of 581-2 Defects in, how supplied 582 Signing information 581 For assault on Members of Parliament 581 Amending, evidence, venue, etc 582 CRIMES IN GENERAL 71 Attempt to commit misdemeanor is misdemeanor 84 Attempt to commit felony is misdemeanor 85 "656 INDEX. * PAGE CRIMES IN GENERAL {Continued)— Attempt to procure a woman to make affidavit that A. , father ;,. of illegitimate child, is misdemeanor 84 i On indictment for felony or misdemeanor, jury may find prisoner guilty of attempt to commit it 84 , Civil Action — Suspension of 73 When felony disclosed in evidence 73 Suspended till acquittal or conviction of felon 73-4 What sufficient prosecution 74 ♦' When rule applies 73 . When it does not 74 Jury cannot try felony in civil action 74-6 Judge must ddcide whether case shall go to jury 75 Exceptions to general rule, under Temperance Act, 1864 76 In case of Crown 76 Quebec, law in, different from other Provinces 76 Civil and Criminal Proceeding — V Distinction between 72 . Crimes considered local 72 Cognizable only where committed 72 Concern public 73 Mean offences punishable by indictment 76 Divided into felonies and misdemeanors 79 What are indictable 79-80-1-2-3 Nature and incidents of 71 etseq. Criminal proceedings, what are 72 Distinction between civil and criminal proceeding 72 Of Public wrongs from private 73 Definition 71 Election, neglecting or refusing to administer oath at, indict- able 83 Felony defined 76 . When crime becomes 77 Attempt to commit, is misdemeanor 85 On indictment for, jury may find prisoner guilty of at- tempt to commit 84-5 Attempt to commit, must tend to execution of principal crime 85-6 Must appear that attempt might have been completed . . 86 INDEX. 657 PAGE CRIMES IN GENERAL (Continued)— Attempting to commit distinguishable from intending to commit 87 >. ; Offence made which was before misdemeanor 78 Misdemeanor is merged 78 Now Statute alters this 79 EflFect of this Statute 79 Inciting to commit misdemeanor is misdemeanor 84 Indictment, for what crimes it lies 79-80-1-2-3 For whatever openly outrages decency 80 For violation of positive command in Act 80 , , For act not an offence at common law 80-1 Where a Statute forbids or enjoins an act 81 Inference that every person intends the natural consequences of his own act 88 ' Intention, act resting in, not indictable 87 Misdemeanor, what is 79-87 . . s Attempt to commit is 84 . , J Attempt to commit felony is 85 r.jv Inciting to commit misdemeanor is 84 . When none committed 87 On indictment for, jury may find prisoner guilty of leaser • ;.. ■ misdemeanor 84 Disregard of positive command in Statute indictable as 87 How differs from felonies 88-9 Punishment of 89 Misprision of felony 79 Motives in criminal proceedings 87-8 When material and when nf »t 88 Penalty, when annexed to offence in clause of Act creating it, no indictment lies 82 Public officer, refusing to discharge duties, indictable 83 Public wrongs distinguished from private 73 Remedy when cumulative 82 Returning officer indictable for entering names in poll- book 82 Soliciting and inciting to commit felony when none commit- ted, is misdemeanor 87 Statute on which indictment framed, effect of repeail of 77-8 Creating offence, repeal of 78 PP 658 , INDEX. FAOB CRIMES IN GENERAL {CMitirvued}— Altering quality of- oflence, substituting new mode of ''^''•' punishment 78^ "^ * ■ Annexing new punishment to common law misdemeanor Tft Making offence felony which was before misdemeanor, ' ' . effect of 78-^ CRIMINAL LAW— , . ' i >*uV • -- Right to legislate upon vested in the Dominion Parliament (see English Laws in Force) S CROWN— -f; Application to for pardon, when proper 635 ' ■! Right of Counsel representing to reply 612 Prosecutions, how they differ from civil suits 612-3 Cases, may stand in paper for argument with civil suits 627 CUSTOMS OFFENCES— Not criminal proceedings 7? Acts as to 124 " Against form of Statute " when required in information . . 128 Breaking building, what justifies 125-& Colonial Legislature, power to impose additional grounds of forfeiture 127 Conviction, under (N.B.) 18 Vic, c. 36 130 Costs, revenue inspector not liable for 129 Entry indivisible 128-9 Gunpowder, importation of 127 Indictment, when lies under 31 Vic. , c. 6 124 Allegations in 124-5 When insufficient 126-7 Information, written on oath when necessary 125 Whether it lies under 8 & 9 Vic, c 93 127 Plea to 128 Must have contained allegation " against the form of the Statute " 128 Must specify, particular illegal act 128 Need not state that informer reputable person 130 When not sufficiently certain 130 Jury, scienter proper question for 128 Justice, presence of at breaking required 125 INDEX. 669 PAGE CUSTOMS OFFENCES (Continued)— ■■> When should demand admittance 126 • Orma of proof 129 ^r Order, when indivisible 130 > Own goodc, whether information lies for smuggling 127 $. Penalty, when only one recoverable 128 • Seizure when justified 126 Smuggling 124 et seq ■<, Spirits, when liable to forfeiture 127 (: Stress of weather, landing of goods, under may be shewn .... 128 Warrant, under 18 Vic, c. 36 129 DAMAGING PROPERTY— Conviction for 521 Sdeath— Of prisoner renders it unnecessary to give judgment 249 Warrant to execute sentence of 629 DISTINCTIONS- Between civil and criminal proceedings 72 Between larceny embezzlement, and the obtaining of money by false pretences 349 Between murder and manslaughter 252 DIVISION COURT— (aee Court) DOCK— un d to stand in 607 DOMINION PARLIAMENT- (see English laws in force) DRUNKENNESS— EflFect of on criminal liability (see Temperance Act) 94 EDUCATION— Promotion of, in Quebec — Conviction under 14 & 15 Vic, c 97 442 EJUSDEM GENERIS— Rule as to words 325-6,412, 440 EMBEZZLEMENT— Account, general deficiency of 325 Accounting for several sums 329 660 INDEX. PAGE EMBEZZLEMENT (Continued)— Acts of embezzlement,- not exceeding three within six months 328-9 ' Agent, words, or other, do not extend meaning of previous ' {see ejii^dem gen,eris) 325-6 ' Banker, meaning of term in Statute 325-6 ^ Clerk, who is 322-3 >' Construction of words ' * or other agent " 325-6 * Counts for, joining with counts for larceny 504-5 Definition 320 Distinction between and larceny 349-50 Employment, money must formerly have been received by virtue of 321-2 Not now necessary 331-2 To receive money sufficient 323-4 Entry in ledger of sum received 324 Evidence of 324 ♦ Form of indictment (see Indictment). Friendly Society, officer of 321 Indictment for embezzling cheque 329 Laying property 329-30 Forms of , in Statute 330-1 Only apply to one species of 330-1 ■4 For larceny 331 Specifying coin in 331 Stating property of partners and j oint owners 323 Joint owners (see Indictment) 323 Larceny, embezzlement now amounts to 328 Married woman, properi of 321 Master, receiving money from and /or 326-7 Money, embezzlement of 329 Property in 329-30 When sufficient to allege embezzlement to be of 331 Officer of friendly society 321 Particular sum, receipt of 324-5 Partners {see Indictment). Possession in master or owner 326-7-8 Beceipt from third persons 326-7 From master or owner 827-8 Return, intention to 324 School trustee 321-2 • r INDEX. 661 PAGE EMBEZZLEMENT (Confinwed)— ,V ^. •; , i : .• >,: Servant, who is , 322-3-4-330 Trade, rules in restraint of 321 i Treasurer of County 320-1 ^ Trustee acting on one occasion 323 What is 320-1 ENGLISH DECISIONS— .,v^ , u.v Not binding here 607 ENGLISH LAWS IN FORCE— British North America Act 7-8 ' *i Constitution granted by 8-9 i Colonial Act repugnant to Imperial, void 12 V; Colonies, modes of acquisition 1 ,1 Laws prevailing in each case 1-2 No rule as to 16 Comity of nations prevails between Colonial Parliament and ;;.,>.' Tribunals of Mother Country 13 ■J Common and Statute Law extending to Colonies, distinction j;.;^- between 17 •j . , Rule that Common Law applies 1 7-18 Exception that Statute Law applies 17-18 Contempt, power to imprison for, by Dominion Parliament. . 10 By Local Legislature 10-1 1 Criminal Law, right to legislate on, by Dominion Parliament, 8 By Local Legislature 8-9 Crown, can create Local Legislative Assembly in Colony 6 Dominion Parliament 9-10 Right to legislate on Criminal Law 8 Power to imprison for contempt 10 Same as House of Commons, in England 10 English Laws, only such as are of general and universal ap- plication introduced by 14 Geo. 3, c. 83 20 Did not apply to Acts already in force 20 Forcible entry, Statutes as to in force 22 Grant of legislative powers to Colony cannot be recalled 12 Imperial Parliament has still power to bind Colonies by legis- lation 12 Right of legislation on some subjects reserved to 13-14 Imperial Statutes afifecting diflferent Provinces 3-4-5 » ■» 662 INDEX. PAGE ENGLISH LAWS IN FORCE {Continued}- When they extend to ^Colonies 16 ' :' Impriaonment for contempt, power of not inherent in colonial aasemblies 10-11 But power to preserve order is 11 Introduction of English Criminal Laws on much same footing in all Provinces 17 ^ , Local Legislature's right to legislate on Criminal Law 8-9 No power to imprison for contempt 10-11 . But have power to preserve order 11-12 y. '■ Lotteries, Act as to, in force 19-22 Manitoba, how acquired , 2 Howformed 6 I Grant of legislative powers to 9 V 'r . Jurisdiction of General Court in 6 ''' Marriage, Common and Statute Law of England, as to intro- duced 21-2 '^^, New Brunswick, how acquired 2-3 Grant of legislative powers to 7 "^^ Nova Scotia, how acquired 2-3 Grant of legislative powers to 7 Ontario, how acquired 2 Grant of legislative powers to 6-7 Practice, English Law introduced in 20 Provinces, only such laws as are applicable and necessary in- troduced 18 English Statutes of general and universal application ap- ply to 18-19 Quebec, how acquired 2 Grant of legislative powers to 6-7 Repeal in England of Act introduced into Colony, effect of.. 14-15 Statutes introduced : 32 Hy. 8, c. 9 20 20 Geo. 2, c. 19 21 5 «& 6 Ed. 8. c. 16 21 49 Geo 3, c. 126 21 1 W. & M., c. 18 2] 8&9Wm. 3,c.27 22 33 Hy. 8. c. 20 22 26 Geo. 2, c. 33 22 * INDEX. 663 PAOB ENGLISH LAWS IN FORCE (Cov.iivMed}- Mutiny Act ' 22 Statutes not introduced : ^^.: 5Eliz.,c.4 21 28Geo. 3, c. 49 21 I Statute, whole clauses of must be applicable before it can be n in force 21 Time, lapse of should render Colonial Courts cautious in adopting English Statutes 15 Titles, Statutes as to buying disputed, in force here 20 ENLARGEMENT— Waives all formal and technical objections 550-1 ERROR— ' When indictment lays previous convictions 610-11 Writ of , lies for substantial defects appearing on the face of record 620-1 Matter decided as strictly legal proposition 621 Where venire facias addressed to improper parties 621 Must be founded on some question of law which could not ' -' '" have been reserved 621 Discretion of Judge not reviewable in 621-2 Improper disallowance of challenge 622 On adjudication for contempt 622 For improper award of venire de novo 622 To reverse judgment of Sessions 622 Upon summary convictions 622 On judgments 623 Where, in fact, and not in law, Court in which proceedings taken .. 623 Form of writ 623 Fiat of Attorney-General , 623-4 Assigning new on argument 624 What matters can be raised on record, so as to be examined in 624-5 Not (he rulings of the Judge or his directions to the jury 626 What a prisoner can consent to, to purge error 626 'Concilium forargument 627 4 G()4 INDEX. PAOB. ESCAPE— •■'."• '- - ' •-■■''■■ ■•' ■'■■■ What is 237-» High contempt and niisdunioanor 238 . Party must bo uctnally arrostod and legally imprisoned 238 Negligent and voluntary 238 What is negligent 238-» Ctistudy of law, huw long it continues 239 EVIDENCE— AbBcnco of witnesses from country not sufficient to render de- position admissible 477 Accomplice, evidence of sufficient 459 Should be coiToboratod 459 But evidence need not affect identity of accu^d, or shew him guilty party 460 iLi:' Rule only of practice 460 Acquittal, of one prisoner in order to call him as witness for another jointly indicted 453 Discretionary, at close of prosecutor's case 454 r\iifS .,, Obligatory at close of prisoner's 454 Copy of record of 485 > Affirmative, burden of proof on party asserting 450 Proof that no inducement held out 468 Application to Crown for pardon in case of improper con- viction 489 Authority, inducement held out by person in 467 When confession to person in, admissible. 473 Bill of Exceptions does not lie in criminal case 489 Breach of peace, proof of 486-7 Burden of proof, rules as to 449 Lies on party asserting' affirmative 450 Except where negative proof is peculiarly within know- ledge of party 450 Caution should be given to prisoner before making con- fession 468-9 Challenges, prisoners severing in, when one may be witness for the other 456 Charge not the same as that on which deposition taken .... 477-8 Child, when competent witness 457" Close of case, no evidence admissible after 488 INDEX. 665 PAQB EVIDENCE (roneinMcd)— ..» Competuncy uf witnossoa 467-8 Confessiona, rulo as to, different in criminal from that in civil '^ oasoa 449 * . Must bo froo and voluntary 467 'f^^ ■ If under oath, inadmisaible 467 t ' ' But this rule only applies when charge is against prisoner himself 467-8 ■ '• Need not appear affirmatively that no inducement held out 468 ' ' ' Inducenient« to confess 468-9-70 '"''' Caution, what necessary 469-70 •'''' Examinations before commissioner in bankruptcy 470 ' '' ' Made under the hope of being permitted to turn King's '' •"' - evidence 471 . ►*■" To constable, by accused in liis custody 471-2 ',' Advice on moral grounds 472-3 ' ' ' * ■' How introduced 473 '\^..' ■'■■"' ,1 Subsequent warning or caution, after inducement held out 473-4 »''«tk. Names of others in 474 • ' Duty of magistrate, in receiving 476 Confidential communications, w.cness not compelled to dis- close 461 Consistent with prisoner's guilt, all circumstances must be, and inconsistent with innocence 451 Contradicting witness, not by irrelevant question 463-4 Conviction by Justice, when it is a record 483-4 How proved 484-5-6 Proof of quashing 486-6 Copy of record of acquittal 485 Coroner depositions before, how proved 476 Court, record of same and different, proof of 484 Credibility of evidence solely for Jury 461-2 Credit of witness, impeaching 462 Criminatory questions, witness not bound to answer 461 Cross-examination as to previous statements in writing 463 Irrelevant questions should not be put to witness on 463-4 Crown, application to for pardon 489 Deceased witness, statement of when admissible 478 666 INDEX. PAOB EVIDENCE (Continued)— DopusitioiiB, object of taking 476 Inspection of 47S '•♦,■ . Evidence discovered after 476 -ViJ Before Coroner or Magistrate, proof of 476 ?>' . ,'. Reading before Grand Jury 476-7 '/!' Each need not be signed by Justice 477 ^•T'' ■ Admissible on difToreni charge from that on which token 477-8 Absence to render admissible 477 r.Av ... Illness necessary 478 '. ' Looking at, on return to Habeas Corpus 632-3 Discrediting own witness 466 Doubt, reasonable prevents conviction 461 Dying declarations, when admissible 481 I Must be no hope of recovery 482-3 *i^-t»^.... Objections to this kind of evidence 482 Effect of evidence, difference between civil and criminal pro- *> ceedings 449-50 Error, raising points to be examined in 489-62 i Estoppel, doctrine oi has much larger operation in civil than '■ in criminal proceedings 449 c!iV^ Explanation of circumstances pressing against accused person, when required 450-1 Fabrication of evidence 489 Facts should be asked only as to 466 Felonies, when evidence of one admissible to shew character of other 479 Proof of finding of indictment for 486 Finding of indictment, proof of 486 Formal record, when not necessary 486 Forms of depositions 476 Gazette, when evidence 487 Grand Jury, depositions before 476 Guilty knowledge, how proved 480 Hearsay evidence not admissible 480 Hope sufficient to exclude confession 471 2 Of recovery, must be none to render dying declaration admissible 482 Illegal evidence may be ruled out 461 Illness sufficient to render deposition admissible 478 INDEX. 667 '"'■''' ' p^oi EVIDENCE ((7on, Presumption of innocence 450 Previous statements in writing, cross-examination as to 463 Printer, Queen's, Gazette printed by 487 Prisoner jointly indicted, acquitted and calling for other 453-4-5-6 When one given in charge 455 When they sever in challenges 456 Proof of depositions 476 Public Statute will be noticed judicially 487 Quashing of conviction, how proved 485 Ground for 489 Rape, on indictment for prosecutrix not bound to di3close con- nections with other persons 463-4 Reception of improper evidence 488 Record, conviction by justice returned to Sessions, is 483-4 How proved 484 Record of same, and diflferent Court 484 Of acquittal or conviction 485 -/ INDEX. 669 PAGE EVIDENCE {Continued)— Copy of 485 Formal record 485 Information returned ia 486 Raising points on, to be examined in error 489 Relevant evidence only admissible 463-4 Reply, reception of evidence in 488 Secondary evidence when admissible 480 When notice to produce must be given 481 Several felonies connected together evidence of one to shew character of other 479-80 Sessions, minutes of 484 Severing in challenges 456 Skilled witness, what questions may be put to 465-6 Swearing witness according to ceremony which he considers binding 457 Threats more than six months before commission of crime... 487-8 Third person, confession of, insufficient 474 Trial, all objections must be made at 488 Two prisoners jointly indicted, acquitting one and calling him as witness for the other 453 Veracity of witness, impeaching 464-5 Informal or illegal way of 466 Voluntary, confession must be 467 Statement by prisoner on application for remand 471 '" ' Whatis 473-4 Weight of evidence, for jury 45] Wife cannot give evidence for or against her husband 458 Withdrawing improper evidence 460-1 Witness, credibility of 451-2 Who may be 453 et seq. Competency of 457 Incompetent, evidence of , 460-1 One is sufficient 461 Need not disclose confidential communications 461 ' Nor answer criminatory questions 461 Impeaching credit of 462-4-6 Cross-examining 463 Contradicting 465 Statement of deceased 478 670 INDEX. PAGE EVIDENCE (Confmtted)— ,..'..-...•.•,,. •-4: ■ ;:,i,i» . . Reading Judge's notes to ....489-90 EXCISE OFFENCES— : ' Not criminal proceedings 72 AUegation in conviction, when sufficient 136-9 Amending conviction at time when made 133 Summons may be amended 133 Certiorari, return to conclusive 138 Conviction must allege sale by retail 132-3 When bad 133 Must negative exceptions in Act 133 Must specify day of committing offence 133 Second may be returned 134 Must shew liquor not supplied for medicinal purposes... 134 ., , Sufficient to allege, "certain spirituous liquor, called ,!.!^, ; whii^ky" 134 ,J^ Need not negative sale in original packages 134 ;-^, Sufficient if it appears on its face that prosecution com- menced in time ... 134 /, ., .' Must be certain, and not in disjunctive 135 ^ , Must be of offence charged in information 135 •^ ,. Will lie against partner 135 Must shew on what Statute made 135 Concluding contra formam sto<«>•' EXIGI FACIAS— Writ of, when issued 168 EXTORTION— (see Office offences by persons in) 143 e< seq. EXTRADITION 23 Not of right unless by treaty 23 Accomplice, evidence of sufficient 58 Ashburton Treaty now governs 25 Contains whole law of surrender 25 Assault with intent to commit murder, what words shew 67 Arrest, warrant of may in first instance issue here 43 Bail, none if prisoner discharged by Magistrate 68 672 INDEX. PAGE EXTRADITION (Confi What evidence of corptt* deJtcii on application for 68 Burglary not within treaty 37 Charge may be made within either country 43 / Commitment where evidence clear, though arrested on void ' , : warrant 51-2 ;; Upon what evidence to be made 47 Complainant need not be eye-witness 51 -■:>: Construction of trejvty 31-2-3 :; Depositions when Court will look at 65 Discharge if committed on insufficient evidence 58-9 Evidence, our law governs as to 52-3 Fiva wfle may be received 53 And copies of depositions 53 But no obligation to produce depositions 53 if! How Act as to depositions should be construed 53-4 ( ,. Certified copies of depositions on which warrant issued in • .; ., States admissible 54 ^■ci . When depositions may be used 54 V .' i. Affidavit, when received 54 f: ; "; Professional gentleman, evidence of 55 i'i. .. Examination of witnesses, how conducted 56 i.''/ , Sufficiency of evidence, by whom and how determined .. . 55 =:y,; . , Evidence in defence 55-6-7-8 Admissible to shew that crime not within Treaty 55-56 Doubtful whether admissible in same manner as in inves- • * ■'- • . tigating oflFences committed here 56-7-8 ) ^ • • Accomplice, evidence of, sufficient 58 Slave, evidence of, sufficient 58 Evidence, when sufficient 58-9 Expenses, how payment of enforced 68-9 Forgery, when within Treaty 37-8 Proof that person extradited for 68 Governor -General, surrender only by 46 No power except over specified ofiiences 46 Controlled by Courts 46-7 Need not issue warrant authorizing Magistrate to act . . 43-4 Habeas Corpus, right of Court to interfere by 59-60-1-2 Statute gives no power to grant, except in cases under s. 5 61 Return to 63-4 INDEX. 673 PAGE EXTRADITION (Continued)— Information, when too general 50-1 Jay's Treaty related only to murder and felony 24 "Jurisdiction" and "territories," how used in Treaty 29-30 .: Legislature, power to pass Laws, whence derived 27 Magistrate, who may act as 40-1 Authority for appointment 41-2-3 . Powers conferred thereby 41-2-3 Duty and authority in committing prisoner 47-8-9-50 Cannot try case 48-9 . -^ Discharge by one does not prevent another from acting 42 Issuing warrant must hear evidence, and determine upon its sufficiency, and send copy to Governor 45 Decision not binding on Governor 45 Should consider whether offence within Treaty, as whole authority derived therefrom 40 Jurisdiction must be judicial as well as territorial 41 Objects of Treaty 31-2 Offences to which Treaty applies 34-5-6-7-8-9 J. Nature of 34 ; , How Treaty construed and carried out as to 34-5-6 Whether misdemeanor or felony immaterial 39 Immaterial in what part of States committed 44 Need not be tried where committed 44-5 •, International not within Treaty 38-9 Parliament performs obligations of Canada under Treaties ... 45 ;>,, < ! Ashburton Treaty included 46 Persons to whom Treaty applies 33-4 ^. Piracy, when within Treaty 38-9 Procedure, two alterations made in, by 24 Vic, c. 6 30-1 j. Remand, when Court may order 52 When Judge may order 52 " Requisition by Government of United States not necessary... 43 Warrant of commitment need not shew 66 Review by Court of Magistrates committal of prisoners... 59-60-1-2 Power of Court 59-60-1-2 On what principle evidence before Magistrate reviewed... 62-3 When Court will look at depositions 65 Will not in extradition cases 66 Slave, evidence of, sufficient 58 674 INDEX. PAGE EXTRADITION {Continued}— Statutes in aid of Treaty-^ ^■' Con. Stats. U. C, c. 96 24 How far now in force 24-6 6&7Vic.,c. 70 6' ,' Not now in force in any of Provinces 26 25 Vic, c. 20, why passed 26 • -; 12 Vic, c 19 27 :' 23 Vic, c 41 27 24 Vic, c G, why passed, provisions of 28-9 \ Words " any such States" omitted in 28-9 31 Vic , c 94, why passed, effect of, what it repeals 31 33 Vic, c 25 31 '' 6&7Vic,c75 69 6«&7Vic,c34 69-70 Surrender, none till seven days after commitment 47 For offence not charged or proved 47 Can only be made by Supreme Authority 45 ' Suspicion doubtful whether ground for detaining prisoner. 51 But no surrender for 51 Trial here, for offence for wjiich prisoner not extradited 68 Try case, cannot here 48 V arrant of commitment, when good 65 When not within Treaty 66 ■ Should follow Statute 64-5 ' ' Must shew that Magistrate deemed evidence sufficient to justify apprehension 66 And that offence committed in States 66 Need not set out evidence 66 Nor shew previous charge or requisition or warrant of Governor- General 66 Must mention day and limit time for confinement of prisoner 66-7 What words in, involve " assault with intent to commit murder " 67 Authority of Magistrate need not be shewn on face of... 67 Second or amended warrant may be delivered to gaoler by Magistrate 67-8 Warrant of Governor General no proof that prisoner extradi- ted for forgery 68 f INDEX. 675 •.,..■. ,' , (', PAGE FACT— • '■■ ■•'■"'''■ Mistake in, is defence 97 Determined by Jury (see Jury) FALSE PERSONATION— . ,,.,.; ... Of voter at Municipal Election 372 Indictment for 372 ^ Voting in name of another 372 When person dead 372 Personation need not be Buccessful 373 .,< ■ s. FALSE PRETENCES— Acquittal when facts shew larceny 343 Acts may constitute pretence 338 • ' Attempt to commit 339 Banknote, misrepresenting amount of 339 V ' Pretending that piece of paper is 340 Board not liable for obtaining 347 Construing law as to 332 ^•' ^ ' Continuing, when pretences must be 336 •• Must continue till time of obtaining 387 Contract between parties 339 Court, pretending to be oflScer of 348 Acting under colour of process 348-9 •'' Delivering process 348-9 " Credit in account 338-9 Distinction between, and larceny 349 Division Court 348-9 Evidence, of note being of no value 337-8 Of obtaining coat by 340-1 Exaggerated praise 342 Existing fact, must be false pretence of 332-3-4 False, pretence must be 332 Indictment, when facts shew larceny 343 May be convicted of false pretences 343 Shewing pretence of existing fact 345 When sufficient 346-6 Laying property 346 Uncert.-,in or doubtful 347 Obtaining board 347 Must define goods 347 676 INDEX. PAOB FALSE PRETENCES (Continued)— Need not allege ownership 347 For obtaining cheque 347-8 Induced to part with property by falao pretence 334-5-6 Intention to pay immaterial 336 Jury, what questions are for 342-3 Larceny proved on indictment 343 Loan, obtaining of 337-9-40 One false fact sufficient 334 Particulars of 347 Partner obtaining by 343-4 Pay (see Intention) , ;, Pretence must be untrue 332 Prosecutor must be induced to part with property by 332-4-6-6 Of carrying on business 332 .. . Of present or past fact 333 , , , '' Of being single man 334 ,.., ,v Need not be in words 338 That certain drafts will be paid 342 Promise to do something infaturo 332-3-6 Property in chattel must pass 337 Quality, specific representation of 343 , - Servant obtaining excess of wages 339 ,. Signature, obtaining of 343 - True (see untrue) . Untrue pretence must be 332 Valuable security 337 Venue 344-5 Verdict " guilty of larceny " 344 What is 338-9—40-1-2 \ FEES— ~' ■• "'■ ■• To public ofiicers 144 FELONY— What is 76 What words in Statute make (see Crimea in General) 77 ^ FLOUR— Seller of, in barrels not marked or branded 438 INDEX. 677 #. PAGE FORCIBLE ENTRY OR DETAINER— Action lies for .• ; 193 Complaint may be laid before Justice for 193 Estate, imiiiisition must shew what 194-5 Evidence, whether private prosecutor can give 193-4 Indictment lies for 193 Inquisition, when bad 194 Must shew estate of party expelled 194-5 Justice, when may award restitution . . 196 Misdemeanor, forcible entry is ]93 Object of prosecutions 193 Proceedings which may be taken for forcible entry 193 Prosecutor cannot be examined as a witness 193 Queen's Bench, Court of, had at Common Law no power to award writ of restitution , 196 Restitution, when writ of may be awarded f95-Q Riot, when amounts to 193 Sessions may award writ of restitution 196 Statutes in force as to 22-193 Title, evidence of not admissible 194 Trespass will not support indictment for 196-7 Wife may be guilty of .... 197 ' Witness, private prosecutor cannot be 193 FOREIGN COUNTRY— ' ^ Lawless aggressions by subjects of, at peace with her Majesty ;." (see aggressions) 413 FOREIGN ENLISTMENT OFFENCES— Act now in force 112 Alternative part of Act in 115 Construction of 112-3 Local Act void, so far as repugnant to 113. Warrant of commitment, requisites of 113-4 Under 28 Vic, c. 2, when bad lift Must not be for too little penalty 116 Must specify amount of costs 116-7 When sufficiently shews jurisdiction 116 Direction to gaoler lift Double oflfence 117 What is offence against Act 117-8 (578 INDEX. PAOE FOREiaN ENLISTMENT OFFENCES (Continued)— When ship employed in military or naval service 118 Releasing on bail 118 FORGERY— Actual defraudinf< not necessary .. , 361 Agreement for sale of timber 362 Altering of note 359-60 Assessment roll 368 Authority for payment of money 363-6 • , Date, executing deed with false 358 / ■ Deed, executing in name of another , 368 ''^' Definition 356 Document, forgery must be of 362 Engraving of notes 364 Evidence of party, purporting to have signed document 369 False date, executing deed with 358 False pietencea, goods obtainc I by, through forged order 370 Illegal instrument 357 Indictment need not allege intent to defraud particular per- son 360-1 Must allege that note was forged 368-9 '•' And that defendant uttered it as true 369 , Describing instrument in 370 For forging receipt 370 Surplusage in 370 r:.i Indorsement per procuration 364 ' Forgery of 359-60 Intent to defraud, must be evidence of 359-60-1 Need not allege intent to defraud particular person 370 Letter of recommendation ... 362 Magistrate's order for reward 366 Misdemeanor at common law 371 Note, forgery of 359-60 Indictment for 368 Order for delivery of wheat 357-8 For reward 366 For payment of money 366-7 Pay, intention to 371 Promissory note for payment of money 365-6 INDKX. 07*) PAOK FORGERY (Coniinmd)— , ' Purport of inHtnnnent 357-8 Rt'CL'ipt for payment of money 362-3 , llecommendation, luttcr of * 302 , Kequoat for payment of money 3(53 .„ Forgery of 3flO . Semblance of gonnino inBtrumont 357 SessionB cannot try 370-575 :^ Undertaking for payment of money 305 ^ Uttering, what is felonious 308-9 :, Validity of instrument 301 , , No offence, if wholly void 302 Warrant for payment of money 303-7 ■ /• Witness, who may be 309 ^ Writing, forgery must be of 302 FRONTIER— ■■'■ ' '"■.■■■'•■'■ ■'/.•:'■..: Act for repressing outrages on 420 W hen Court can order restoration of property seized 421 GAME - Killing and taking. Using engine therefor, without certificate, liable to penal- ties, under s. 23 of the 1 & 2 Wm. 4, c. 32 440 OOVERNOR— ' ' Of Colony, power to suppress rebellion 192 Indictment against, for oflences within 11 & 12 Wm. 3, c 12, where preferred 447 GRAND JURY— Depositions admissible before 470 Finding of when dispensed with 591-2 Indictment may be preferred before, though Justice refuse to proceed 528 Act for preventing vexatious proceedings before 590-1 Conditions of, need not be proved 591 When provisions of complied with 591 Evidence before, how received and given 592 Accused has no right to give 592 Twelve jurors must assent to finding 592 Principles on which they decide 592 (580 • INDEX. HABEAS CORPUS— . . - , i . . t, Duty of Jiulgu on 56& Power of Jiulgo in ChiunborH 565 In priictico Court during torni 556 In vucution 55(i Does not lie, wh«n proper remedy by writ of error 550 Or in case of custody under civil process 550-7 Prisoner convicted of larceny 557 Prisoner for debt in close custody in another County. ...... 558 To Keeper of Prison to bring up convict as witness 557-8 Must bo request in writing, etc 558 Affidavit on which obtained, entitling, etc 558 When received 420-7 Return to, contradicting, etc 533-4-59^ Shewing commitment bad (m face, or charging no offence 559 When prisoner in custody less than a year 550 General principles on which jurisdiction of justices reviewed on 500-1 Looking at depositions on return to 532-3 Jurisdiction of Queen's Bench .' ,...601 HIGHWAYS— Abolishing, by placing gate across 21 9 Adjoining land may be travelled over, when out of repair . . . 221 Allowance, no other road used in lieu of proper 207 Original, continue to be public highways, 207 " Bye-road, every, is not highway 205 By-Law, District Council could not lay out road except by . . 209 Changing by writ of ad quod damnum 220 ^ Commissioners should remove fence on road 218 ? Conviction must shew that place public highway 218 County road to be repaired by coimty 222 Crown, grantees of must repair ^ 222 Cannot grant to private individual so as to bar public right 206 Culdesac 213-14 l)edication — User for thirty years, evidence of 208 What is dedication 209 Must be intention to dedicate 209 Evidence of 209 INDEX. osr 1*AUB HIGHWAYS (Continufd)— When jury should tiiul dudioitinn 210 I'roHuinud from UHor for thirty ycarB, Ihotigh land under leaae 210 Stronger evidence of, re(iuired in new than in old district 211 Prosuined from long user and statute labour 211 Limited or partial 211-12 Right of passage only, parted with on 212 Must be intention to dedicate 209-212-3 Reservation inconsistent with void 213 Question of fact for Jury 214 Engineer, Government, need not condemn road by certificate 222 Evidence of state of road before trial 223 Same as in civil action 233 Fire on side of road, not nuisance 216 Freeholders disinterested 232 Gas Company, members of, liable to be convicted of nuisance in obstructing a highway 223-4 Gate on road does not abolish highway 218 Government survey against right of party in possesion 208 Indictment for nuisance may be against three or fonr of seve- ral defendants 232 Evidence, variance, etc 233 - Judgment on out of term 233 Preferring new indictment 233 Joint stock companies, roads of, not highways 206 Judgment, whether can give on indictment out of term 233 i. . Minutes of boundary line Comrs. are not 233 Jury must determine dedication 214 And whether road highway 214 '-■- Lake Ontario, no highway along beach 208 Mandamus, when proper to compel repair of 200 Minutes of boundary line Comrs. not judgment 233 Municipal Corporation, power to open new roads 220 Must keep same in repair 223 Corporation of County has jurisdiction over road between Townships 224 Bridge between two counties . 225 New trial, after verdict of acquittal 233-4 Non-repair, of indictable 199-221 Nuisances to, of two classes 216 682 INDEX. PAGE HIGHWAYS (Continued)—- Ontario, how higliways have accrued in 202 Opening by Municipal Corporations 220 Petition, under 12 Vic, o. 35 to adjust surveys 225-6 Question of dedi^.'ition for jury 214 Whether road, highway, mixed question of law and facl, 214 Railway Co. when bound to repair bridge 224 Return of laying out, not necessary 232 Road Companies liable for non-repair of highways 221-2 Sea shore whether highway on , 208 Shutting up lane, street, public road by gate 218-9 Shutting up by by-law 219-20 Under (N.B.) 1 Rev. Stat., c. 66 220 Statutes 5 & 6 Wm. 4. c. 50; 27 «fe 28 Vic, c. 100; 5 Wm. 4, c. 2 232 Statute labour on road makes highway 214 But must be usually done 214-5 Penalty for no.i-performance of 215 Within division of Township 215 Must be resident in Division 215 Warrant to imprison for non-performance of 215 Surveyor, road laid out by 206 Thoroughfare may be public highway though not 213 Rule, when claimed by dedication . . 214 Toll Companies, when liable to keep roads in repair 223 User for thirty years evidence of dedication 208-9 User for seventy years, when land in lease 210 User and dedication establish highway 211 But stronger evidence in newly settled district 211 Dedication may be presumed from 211 But is only evidence of dedication 212 i When makes highway 213 Variance on indictment 233 Velocipede may be obstruction 217 ^ Via trita does not compose whole road 224 Waggon standing in highway is nuisance 217-8 What is highway 203-4-5-6-7 Width of road preserved 224 HOMICIDE — (see Justifiable Homicide and Excusable Homicide) INDEX. g83 IGNORANCE— page Of law no defence. . But may be ground for application to Government. .".'." 96 Of fact, ia defence . " 97 IMPERIAL STATUTES-(.ee English Laws in force) IMPRISONMENT— Different purposes for which imposed 539 Re-imprisonment Period must be certain ^00 oq .n ' Day of discharge ;;■""■ ^^^' ^^'^^^ For absolute time, under 4 & 5 Vic, c. 27 ....'. "447 g Where conviction for several offences .".'.'..'... 526 INDIAN LANDS- Acts relating to sale of 436 INDICTABLE OFFENCES-(,.e Crimes in General) ... . 79 Duties of Justices on charges of " " ' " 527 Discharge by one does not prevent another from acting 527 Justice must proceed as directed by the Statute. . . ' 527 8 Indictment may be preferred, though Justice refuse to pro- C66C1 ...... Warrant of arrest. . . 528-9 INDICTMENT-(.. Pleading, and the different titles through Copy of , when granted ^^r. 610 INFANTS— Criminal liability of (see Persons Capable of Committing ' ■ Crimes— Abandoning) . „ "^ 90 INFORMATION OR COMPLAIN T- Amendine ^ 526 INSANE PERSONS- ' Z''^^'''"'''*'^ '' ^"' "^"'""^ ''"P^'^^ «^ committing 92 INTENDING TO COMMIT FELONY-(.e Crimes in General) 87 INTOXICATING LIQUORS, SALE OF- Act27&28Vic.,c. 17, asto.... 440 684 INDEX. PAGE INTOXICATING LIQUORS, SALE OF (Continued)— Objectof 441 Limited to where Temperance By-law is in force 441 Penalty, to whom it belongs 441 Conviction, must adjudge it to such person 442 JOINT PARTICIPATION— In unlawful act renders all liable 99-100-405 When act committed in prosecution of unlawful purpose 100 JUDGE— Decides Law 598 Misconduct by (see Office, OflFences by Persons in) 145 JUDGMENTS— Courts giving out of term 233 Staying the entry of, arresting, etc 606-7 jurors- How summoned 593-4-7 Qualifications and exemptions 594-5 Aliens 595 Drafting panel of, from list for United Counties, on precept therefrom, when trial takes place in one of Counties, after severance of union 595-6 Selecting from panel returned into Court, in obedience to pre- cept 597 Venire facias after issue joined 597 From what jury-book empanelled 597-8 De meditate linguce not allowed 598 Examining as to qualification 618 Swearing of thirteen 618-9 JURY— On appeals from summary convictions 548 (■ Can only decide on facts 698 Cannot try whether prisoner extradited from States for for- gery 598- Must follow direction of Court in point of law 598-9 After retiring may return and re-examine witnesses 599 Misconduct of, when A^itiates verdict 599 Separation of 599-600« INDEX. 685 PAOE JURY (Continned)— , . , Ref reahmenta to 600 Discharging, when proper 600-1-2 When it does not operate aa an acquittal 601-2 Deatli or iUneas aufficient . 601 To obtain evidence 601 Carrying from town to town in a cart 602 Right to find general verdict 603 JUSTICES OF THE PEACE— Appointment of 512 Oath of qualification 512 Proof of qualification 512-3 Juriadiction in City and County 513 Under Commiaaion of Peace 513 Maxim omnia pra'sumuniur rite esse actu 513-4 Must have juriadiction over individual 514 Information miiat be laid 514-18 What gives juriadiction 514 Ousting by claim of right 514 By queation aa to title to land 614 Power to convict summarily 517 Rendering judgment 526-7 Acting for Division or County 527 Where Statute empowers two, conviction by one 527 Duties of, in relation to indictable offences 527 May commit for contempt 529-30 And for continuing periods 529 Doubtful whether Justice acting in hia own house can com- mit .. 530 Requisites of commitment 530 Warrant to constable • 530-1 Justice exclusive judge of contempt 531 Con. Stats. U. C, c. 326, passed expresaly for protection of 535-6 ;i>i. i JUSTIFIABLE HOMICIDE— Of three kinds 261-2 .ffj,.' LARCENY— '-'w...,:: -' . -i. Act of stealing, must formerly have been separate ir iictment for each 311 Three may now be inserted in one indictment 311-12 686 INDEX. PAGE LARCENY {Continued)— Acte or deed not subject of larceny 311 Agreement unstamped 290-1 Attempting to commit 100-1 Animo furandineceaBaxy 292-3 Bailee, porter is 303-4 Whether animus furandi, at time of obtaining, is neces- sary 303-4 Hirer of horses from livery 304-5 Lessee of pa^vn 305 Agent of Express Company 305-6 Married woman 308 Distinction between bailee and servant 308-9 Bailment, what is 303-4 Must be to re- deliver same chattel or money 304 Delivery of goods for sale 305 To Express Company 305-6 Bond, when subject of larceny 290 Carrying away necessary . . . 292 But least removing suflBcient 292 Certificates, subject of 290 Choses in action not subject of 290 Coin, species of, need not be alleged 312 Consent, goods taken by 292-3 Continuous taking when thing not subject of (see Taking). . 291-2 Deed passed before notary not subject of 311 Definition 281 Distinction between false pretences and 349 Felonious intent, goods must be taken with 292 Fraudulent obtaining of goods by which property does not pass 298 Possession parted with through fraud 299 V Property so parted with 299 Property obtained by sale 301 Fruit, stealing growing 311 Goods subject of larceny must be personal 290 And subject of property 291 Dogs, stealing of 291 Animals ferce tiaturai 291 Grand Larceny abolished 292 INDEX. 687 PAGE LARCENY (Confirmed)— Husband steali ng goods of with wife's privity 308 Indictment lies for three takings within six months 311-2 Sufficient to follow forms 312 Need not allege value 312 Must specify valuable security 313 What is surplusage in 313 Laying property in notes 313 In master or servant 314 In father or son 314 When gift of personal property inter vivos 314 When there is administratrix 316 Where goods are property of partners or joint owners . . . 315 Or tenants in common, or parishoners of church. ...... 315 Or when larceny is committed by lodger 317 Injury done to two ov three trees may be added together 311 Joint owners laying property in (see Indictment) 315 Jury, what questions are for 306 Lodger, on theft by, property in goods laid in owner 317 Loai property, larceny of 293 General rule as to 293-4 Belief at time of finding that owner can be ascertained . . 294 Belief that goods abandoned 294 Property mislaid 294-5 Means of ascertaining owner 296-6 Felonious intent at time of finding 296 What is lost property 295 Married woman may be bailee 308 Cannot steal goods of husband 308 Menace, stealing by 303 Miller stealing meal 309 Money, person may be bailee of 306 Proof on indictment for stealing 312-3 Obtaining possession lawfully 297 Obtaining fraudulently is 297-8 Obtaining property fraudulently is not {see Fraudulent, Ob- taining, etc.) 298 Partners, laying property of, in indictment (see Indictment) 315-6 Pawn, selling of, not larceny 305 Petty larceny abolished 292 688 INDEX. PAOB LARCSiVY {Continued)— Police Court, stealing or destroying information in 310 Possession obtained by trick 302-3 When possession of servant determined, he may after- wards commit larceny (see Obtaining, etc., Fraudulent, etc 307-8 Post letter, whether larceny can be committed of 29G-7 Potatoes are subject of 292 Proof on indictment for stealing money 31 2-3 Property, larceny cannot be committed of things not the subject of 291 If property passes, can be no larceny 297 If owner intends it to pass, it will pass, and no larceny be committed 297-8 ' Servant may pass 298-9 Or cashier of bank 299 But now larceny by Statute 299 When property does pass 300 When obtained by false sale 301 "When in bailee 301-2 Laying in indictment (see Indictment). Record, stealing or destroying 310 Returning goods may negative animo furandi 293 But no defence that prisoner intended to 293 Robbery, larceny included in 287-300 Sale, false, by fraud 301 Servant may pass property 298 May be guilty of larceny (see Bailee) 308-9 Several takings maj' now be laid in indictment (see Continu- ous, etc. , Takings, etc.) 311-2 Shareholder in Company cannot commit larceny from . 309-10 Ship at -sea, larceny on board 317 Subjects of 290-1 Surplusage, what is 313 , Taking must not be continuous act with severance, when thing not subject of larceny 291 ■f, Should be interval 291-2 "What is continuous taking 292 Trespass, larceny includes 292-7 Trick, possession obtained by 302-3 INDEX. 689 PAGE LARCENY (Ooneijmed)— Value need not be stated 312 Is immaterial 317 Venue, when goods stolen on journey 316 When taken in Maine 317 Or from ship on sea 317 Verdict, when sustainable, 317 Weaver, when guilty of larceny 300 Wife (see Husband). * Will, must be taking against 292-7-300 LAW— Foreign, not binding 607 Mistake in, no defence 96 But may be ground for application to Government 96 LAWLESS— Aggressions by subjects of foreign country at peace with'Her Majesty (see Agjjressions). LIBEL— Action, when lies for against Corporation 169 Affidavit in judicial proceeding is privileged 174 Bill of rights, principle of, applies to petition to Lieutenant- Governor 176 Malice destroys privilege in petition 176 Intended to protect petitioners applying to Crown 177 Applies to public rights only 177 Bona fides necessary when matter otherwise libellous 181 Case, after closing, cannot put in evidence 488 Commons, House of, staying proceedings for publishing votes of 177 Comparison of dispiited writing 188 , Libel may be proved by 188 Courts, reports of proceedings may be published 171 :, Ground of privilege 172 ' ; Ex parte proceedings of : 172 Dignity of Court cannot be regarded 172 Privilege protects publication of proceedings of open Po- lice Court on charge of indictable offence 173 Corporation, action for Ubel lies against 169 RR 690 INDEX. PAGE' LIBEL (Continned) — • • • > -i'* '.*.».' /. May also be indicted 169 Criminal information, on application for Court in position of Grand Jnry 189 Must have same evidence as (irand Jury 189 Libel itself must be tiled 189 Legal, evidence of publication 58',? Debate in Parliament, publication of privileged 178 Biit must be fair report of 179 Defence for defendant, to shew that publication without his authority 177 What sufficient defence to render conviction illegal 188 Ex parte proceedings of Courts, publication of, privileged. . . . 172 House of Commons, staying proceedings for publishing votes of 177 Indictable offence, proceedings on charge of, may be pub- lished 173 Indictment, lies for libel whenever action lies 1G8-9 May be maintained against all concerned in joint publi- cation of libel 1()9 Inuendo in 189 Individual, libel xipon, what is . 108 Information {see Criminal information) Ingratitude, to charge man with, is libellous 170 Inuendo, use of 189 For Court to say whether capable of bearing meaning assigned to it (.sec Indictment) 189 Joint publication of libel, all liable for 109 Judicial proceedings, fair report of. protected 174 Judge to determine privilege 183-4 Should ask Jury whether matter published bona fide. ... 185 Judges, acts, words, or writings of, in judicial capacity, privi- leged 174 Jury, what questions are for 170 When evidence of malice, extrii sic or intrinsic, jury iS'f . must determine privilege 183-4-6 '; '.*f i Cannot determine whether libel contained in official document 185 Can determine whether defendant honestly believed truth of his statements 185-6 INDEX. 691 PAOB LIBEL {Continued)— '..■, ... ■, Jurymen, acts, words, and writings of, in official capacity, privileged 174 Magistrates, report of proceedings before, privileged, but must act within jurisdiction 172-3 . Malice, pnjof of express 181 When libel privileged, proof of express malice must be ' ■, given 181 Meaning of, in legal sense 181-2 To prove express malice may shew that libel untrue .... 182 ' ' Libellous expressions in a privileged communication may • . be evidence of actual malice 182 When express malice shewn, defendant may prove state- ment true 182 Judge to determine whether inference of malice reiJcUcd 183 When Jury decide 183-4 Members of Parliament not liable for statements in Parlia- ment (.sec Parliament) 178 Memorial to Secretaiy of State privileged 175 Military officer, report by, in ordinary course of duty, privi- leged 174 Obscene writings, publication of, indictable 171 Test of obscene publication 171 No defence that object lawful 171 Open Police Court, proceedings of, on charge of indictable offence, may be published 173 Magistrate's Court, proceedings of, may be published . .173-4 But not, if enquiry carried on in imvate 173-4 Parliament, Members of, not liable for statements in 178 Publication of debates in, privileged 178 ' •' ■ Publication of speech in, with intent to injure, is unlawful 179 ' Report of proceedings in, may be published 179 Personal libel, what is 169 ' Petition to Lieutenant-Governor, when privileged (see Bill of V Rights) 175 ' Plea, to information for 189 ' Police Court, when proceedings of, may be published (see Court, Open, etc.) 173 Presumption that party intends what libel is calculated to effect 171 692 INDEX. PAQB LIBEL {(Continued)— Privileged communication, what is 174 cf seq. Report in writing by military officer 174 Statement bona fide, wiiere party interes^er8on 257 Not on more suspicion 259 Must show felony actually committed 250-00 Arrest without warrant 257 By Magistrate for misdemeanor committed in his view . 267 Must be breach of peace 257 When illegal 257-8 . , Second arrest for same charge 258 By constable for broach of peace 258 By Policeman 258 , ; By Constable, without warrant on reasonable charge. .258-9 In civil proceeding 258 Offender must be taken before Justice 258-9 By private person 259 By clerk in service of Ry. Co . . . '. 259-60 ■ . Must shew felony actually committed 259-60 ..- , n , By person who is assaulted 260 !•<>• * . Assaulting wife does not justify 260 When illegal 260-1 Assault, when it justifies arrest (see Arrest) 260 ' " Authority, officer arresting must have 256-61 *" Civil proceeding, arrest by constable in 258 Constable may arrest for breach of peace 258 For suspicion of felony 258-9 .*♦'■ ■■St" - ■■ ; f • Must have legal authority («ee Authority, Apprehension, ' Arrest) 256-61 Definition of 252 Felony, arrest for suspicion of 259-60 When actually committed (see Arrest) 259-60 Involuntary manslaughter 252 Knowledge of character in which officer acts, must be . . .256-61 Malice, not in 252 Neglect to provide food 255 Negligence, culpable, may amount to 253-4 INDEX. 695 PAOF, MANSLAUGHTER {Vontinned)— Oflicor of justice, killing of ... 266 Vt'iice, arrest for breach of 258 Private person, arrest hy («:e Ari'ost) 250-6() Removal of person unlawfully in liouse 261 i Servant, killing of domestic 263 4 Suspicion of felony, arrest for 259-60 Voluntary manslaughter 252 MARRIAGE— English Law as to, introduced {ace Bigamy) 21-2 MASTER AND SERVANT— Act Con. Stat. U. C, c. 75, as to 429 Does not apply to school trustees and school teacher 429 CertiorarilioB to remove conviction 430 What agreements within Act 430 Conviction does not determine contract of service 430-1 Must shew that person servant at time 431 Complaint must be upon oath 431 Jurisdiction under 12 Vic, c. 55 442 MERGER— Of lesser offence in greater 78-9 Of false pretences in larceny 343 When object of conspiracy felonious 408 MISDEMEANOR— ' • ' What is (see Crimes in General) 79 MISPRISION OF FELONY.'. 79 ".•. 1 •■•"-■ 'i '<■ C:,:- \'' . '' i.)^::'i'i -fAiu 'H/\fui ,y.i>."' MISTRIAL— Venire de novo for 608 Vitiates and annuls verdict 627 MOLESTATION OR OBSTRUCTION— By master or workman (see Strikes — Trades' Union Act) ... 154 MONOPOLY— ,HW4f> By-law as to market stalls 154 For exempting new manufactures 152 Rnles in restraint of trade 152 Strikes not necessarily illegal 152-3 696 INDEX. PAGE MOTIVES, WHEN IMPORTANT 87-8 MURDER^ ' Administering poison 24f 50 Agent, must be a free 244 All liable for committing, in prosecution of unlawful purpose 98-9 Attempting another act 246- Corporal injury, must be 246 Definition 243 Degrees, persons may be liable in different 244 Disease by which death accelerated 246- Evidence, what is 247-8 As to cause of death 250 Indictment, setting forth manner of dsath 250-1 Must state act done feloniously, and of malice afore- thought 251 For wounding, with intent to murder 251-2' Infant in womb, when subject of 24& Jury, what questions are for 247 Killing, different means of 245 Malice, necessary ingx-edient in 243 Express and implied .243-4 Medical evidence of cause of death 250 Pi-esumption that all homicide malicious 244 Provocation reduces offence to manslaughter 246-7 Punishment of 252 Qtieen's peace, must be under 244—5 Sudden quarrel, when killing in, amounts to 248 Wounding, with intent to murder 251-2 Year, must die within 246^ NEW BRUNSWICK— (see Eng;lish Laws in force) . NEW TRIAL— - .^.' ■-., J --^ ...;.M -!..:. ..'■ When it must be moved for, within first four days of term . . 234 Not now granted in case of felony 631-2' When indictment removed by certiorari, and tried at assizes 632-3 After acquittal or conviction of misdemeanor 632 By superior jurisdictions 632 By Sessions 684 Repealed Act as to • 633-4 Proper course to adopt where formerly granted 635- , VJ-. .. -^ INDEX. 097 PAGE NOTES OF EVIDENCE— . „ Reading to witnesses those taken at former trial 489-90 Judge may have them taken by third person 609 NOVA SCOTIA— (see English Laws in force). NUISANCES— Abatement of 201 Boom in river 201 Fine for non-abatement 201 Compelling through Sheriff 201-2 Action lies for, to navigable waters 197 Fresh actions for continuing nuisance 202 Where action lies indictment lies 202 Civil right, course when indictment for trial of 232 Convenience no defence 200-1 Court, questions for 22-& Dam may be 199-200 Disorderly houses 198- Evidence on indictment for 233^ Highway, non-repair of, is 199 Ill-fame, conviction for keeping house of 1 03 Indictment lies for public 197 Is proper remedy for 200 Course, when proceeding by, is substantially for trial of civil right 232^ Lewdness, open and scandalous, indictable 199 Lotteries are public nuisances 19^ Act as to, in force — .19-22. Magistrate, jurisdiction of, on complaint against disorderly house 198- Maiidamus (see Highway) ivigable rivers, obstruction of 19T ^, ew trial after verdict of acquittal 233-4 Private and public 197" Remedy (see Indictment) Summary conviction by Justice 202' Time of erecting nuisance immaterial 201 No length of legitimates nuisance 202^ User will not legitimate 202 OBJECTIONS— In arrest of judgment COT 698 , INDEX. PAGE OBJECTIONS {Continued)— To Judge's ruling or direction should be raised at trial 609 •■ ' To indictment for defect apparent on its face 609-10 OBSTRUCTING ENGINE OR CARRIAGE— Act 32 & 23 Vic, c. 22, s. 40, as to 435 , , What isoffence within 435 ^ . . Not limited to physical obstructions 436-6 OBSTRUCTING THE EXECUTION OF PUBLIC JUSTICE— Acting in execution of duty, and under proper axithority 235-6 Aid indictment, for refusing to 234 Refusing to aid constable is misdemeanor 236 Constable, indictment for refusing to aid 234 Refusing to aid 236 Conviction for wounding constable, when quashed 235 Disobeying order of justices 237 Order of Queen in Council 237 Excise, indictment for obstructing officer of 235 Indictment for refusing to aid constable 234 For obstructing officer of excise 235 What is necessary to support 236 Knowledge of character in which officer acts not necessary . . 235 Obstructing officer of excise 235 Constable in executing an execution 236 Officer must act under proper authority 236 Order, disobeying, indictable 235 OFFICE, OFFENCES BY PERSONS IN— Attachment granted against Commissioners for trying cause in which interested 150 Bailiff, conviction of, when quashed J 45 Clerk of Crown, resigning office, when illegal 148 Clerk of Peace cannot charge any fees not given by law 144 Not entitled to any fees for striking special jury 144-5 Table of fees contains all charges 146 Criminal information will lie against officer for misconduct . . 148 When granted against Judge 149-160 Deputy Returning Officer indictable for refusing to administer ' ' oath 143 Extortion, what is 143 INDEX. 699 PAGE OFFICE, OFFENCES BY PERSONS IN (Contiwied)— Indictment for 144 Is misdemeanor 143 Two or more may be guilty of 143 Fees in different cases 144-6 Gaoler, fees to which entitled 145 Indemnity, would be illegal for Judge to take 145 Indictment, when lies, when good 143 Lies at common law for sale of office ... 146 Judge taking indemnity 145 Misconduct by 149 Cannot act in his own case 1 50 Exception 150 Must be direct pecuniary intei'est 150-1 If really biassed, wrong to act 151 If remotely connected "with one of parties, no objection. . 152 Justice, when can act, if himself assaulted 152 Neglect to execute duties indictable 143 Registrar and deputy may be jointly guilty of misdemeanor. . 143 Removal of officers 148 Sessions competent to try charge against Clerk of Peace .... 148 SheriflF, sale of office illegal ' 46-7 Statutes as to 147 In force here 21 OFFICERS OF JUSTICE— Killing of (see Manslaughter) 256 ORDER RESPECTING DISTRESS FOR RENT— Sufficient to follow the form given in the Con. Stats. U. C, c. 123 438 OVERSEER OF POOR OF PARISH— Liable to indictment for not accounting 448 OYER AND TERMINER— , , „ .. .,...: ?: ; r.l Whether Commissions now necessary for holding Court of . . 592-3 PARDON— -^ Does not remove effect of attainder by Court Martial 463 Effect of, on appeal to Privy Council 637-8 700 INDEX. PA(}E PAi^LIAMENT— • , Publication of debates in (see Libel) 178 PARLIAMENTARY OFFENCES— Members of Parliament net liable for statements in House . . 240 Attachment against 240 Penalty for voting without property qualification 240 Privilege from arrest 240 Does not apply to criminal cases 241 Evidence of being Member 241 Warrant of commitment 241 Prorogation, discharge of prisoner by 241 Courts, power of, to enquire into commitments by Parliament 242 Habeas Corpus 242 PARTNER— , Agreement to defraud copartner 402-3 Conviction for selling liquor without license will lie against. . 135 Laying property of, in indictment for larceny 315 PAWNBROKERS' ACT— Only applies to persons exercising trade of pawnbroker . . . .436-7 PEACE— Final commitment for want of sureties to kee^> 537-8 Must be in writing 537 And shew date on which words spoken 538 Articles of peace exhibited in open Court 538 PENAL ACTIONS— County Courts cannot try 575 PENAL SERVITUDE— Sentencing for 446 When Act does not apply 447 PERJURY— Affidavits, before whom sworn 389 •' ' Taking without authority . . 394 Need not be read or used 394 Which Court would not receive 394 •.J. >^ . . Evidence of place of swearing 394-5 Ambiguous, oath must nut be 393-4 INDEX. 701 J'AGE PERJURY (ConU7iued)— Amending indictment 398-9 Assignment of perjury, proof of ^ 393 Must be two witnesses • 400 Authority (see Jurisdiction). Belief of fact 393 Church of England (see Prayer Book). Common Law offence, when affidavit not sworn in judicial proceeding 383-4 Credit of witness, false swearing as to 390 Definition 382 Deliberate, false swearing must be 393 Evidence, of assignment of perjury 306 As to place of swearing affidavit 394-5 Must be two witnesses, or proof of material facts 400-1 False, matter sworn must be 382-393 Grand Jury, false evidence before 389 Indictment, shewing authority to administer oath 385-396-7 When sufficient 395 Certainty in 396 Substance of offence charged • • - • 307 Quashing, amending, etc 398-9 Does not give sufficient notice to prisoner to dispense with notice to produce 481 Insurance cases, perjury in 401 Insurance company, affidavit as to loss by fire 387-8 Judge, materiality of matter sworn is question for 392 Judicial proceeding, swearing must be in 382-3-4 J\\ :at stating place of swearing , 389 Need not state such place 394 No part of affidavit 394 Jurisdiction, oath must be taken before competent 382 Affidavit in review case 384 Must be exercising when oath administered 384 ' When there is 384-5-6-7-8-9 Of Court, must be submitted to 395 Jury, what questions are for 392 Justice, where may take affidavit 389 Magistrate taking affidavit without authority 394 702 INDEX. PAOB PERJURY (Continued)— Jurisdiction of, over person committing perjury in another county 401 Materiality of matter sworn 382-9-390-1-2 All evidence now material 392 Misdemeanor, perjury is 382 Affidavit not taken in judicial proceeding is 383 Oath must be taken deliberately and intentionally 393 Must be clear and unambiguous 393 Place, Jurat stating 389-394 Pleading, must first submit to jurisdiction 395 Prayer book of Church of England, oath taken on 393 Quashing indictment 397-8 Sessions cannot try 575 Signatures, efl'ect of jjroving 395 Surplusage in indictment 399 Variance in charge of 397-8 Venue 398-9 Voter false swearing by 382-3 Witnesses, when bound to answer criminatory questions ... 399 When two required 400-1 Persons separately indicted may be for each other 450 PERSONATION— (.sc False personation). PERSONS— Capable of committing crimes 90 Drunkenness, how it affects criminal liability 94 Feme Covert not liable for crime committed in her husband's presence 95 But this only presumption and may be rebutted 95 Protection does not extend to crimes mala in se as treason, murder, etc 95-C Nor semble to misdemeanors 90 Infants, general rule as to criminal liability of 90 Statute creating new felony does not bind 92 Under seven, not liable 91 Rule between seven and fourteen 91 Under fourteen cannot commit rape 91 But may be principal in second degree 92 Non Compotes Mentis, rule as to criminal liability oi persons92-3-4 INDEX. 703 PAGE PERSONS (Continned)— ' ■ • ' ' Subjection to power of others, rule as to criminal liability of persons in 04-5-6 . Wife, when accessory 9(] In ofhce, offences by ]4ri-]62 PETTY TRESPASSES— Conviction under Con. Stats. U. C, c. 105 442-3 Where there is bona fide claim to the land 443-4 PIRACY— Acts in force as to . . 121 Admiralty jurisdiction 122 British Court, no power to punish foreigner 124 Commissions, not necessary 1 20-1 Inland lakes of Canada within admiralty jurisdiction 123 Jurisdiction, over ships in rivers of foreign territory 122 Over British ship, though no proof of register, or ownership of vessel 1 22-3 Over vessel 20 or 30 miles from sea 123 Where sea flows between two points of land 123 Magistrates may take cognizance of all offences committed on lakes of Canada 1 23-4 PLEADING— Acquittal on good indictment is bar to subsequent, for same offence 4% Act of Parliament, indictment on 491 Limitation or exception in distinct clause of, need not be stated 137-500 Against form of Statute, indictment concluding 494-5-6 Amendment of indictment, not at common law 503 Defect in laying property ~^\)^ Case must be decided on indictment in amended form . . 503 Miist be made before verdict 503 Arrest of judgment when indictment charges no offence against law 510 Assault, conviction of, no bar to indictment for manslaughter 499 Antrefois acquit, test of validity of plea 4()(} >i Must be in legal peril on first indictment 420, 490-7 Trial must proceed to its legitimate conclusion by ver- -j - diet 407 704 INDEX. PLEADING (Contitmed}- Meaning of legal jeopardy 407-8 Only pleas known to law 498 When good 498-9, 602 Only apply when decision on aamo accusation in sub- stance 499-500 First indictment insufficiently laying property 500 Proof of pleas 500 Caption of indictment, objection to 509 Certainty essential to charge 401 Charge of offence, what sufficient 491 Conjunctive statement, when proper 493 -Contra formam atatuti, effect of omission of 494-5 Can only be objected to by demurrer 495 "Where two or more Statutes 495 Concluding against particular Statute should follow its language 496 Conviction previous may be good plea in bar (see Previous Conviction) ... 406 Demurrer must be to entire count or plea 501 Pleading not guiltv, when overruled 501 Description of offence in words of Statute 492-3 Matter of, must be provedas laid 502 Duplicity, what is 419-20, 504 Election, when prosecutor put to 504-5 Enacting clause of Statute, exception or proviso in, must^be expressly negatived 137-506 Need not, if in subsequent clause 506 Formal defects in indictment, when objected to 510-1 Forms of indictments 511 Use of discretionary 511 Homicide, indictment for, need not set forth manner of death 507 Indictment, when should follow words of Statute 402-3 On Statute creating new offence 492 Conjunctive statement in 493 Christian and surname must be stated 493 Surplusage in .403-4 On Con. Stat. Can., c. 6, s. 20 501 Sufficient description of list of voters 501 Bequisites under this Statute 502 INDEX. 706 FAOE PLEADING {Continncd)— Caittion, (i\i!i«hing 509-10 Laying in'ovions conviction 509 QiuiHhiiig is discretionary with Court 510 When and for what objections the Court will quash .... 510 Jeopardy, meaning of term 49G-7 Jurisdiction must bo submitted to before pleading 611 List (jf persons entitled to vote 501 Material allegatiims only require proof 493-4 Means of committing otFenco, when to be sot out 507 Misjoinder of coinits 504-5-6 Motion, quashing indictment on 510 Names must be stated in indictment 493 Objection to indictment, wlien taken 510-1 Offence created by Statute 491 Indictment should bring it within Statute 492 One i)lea only can be pleaded 511 Order of pleading 511 Plea, of autrefois acquit 496 If overruled may plead not guilty 500 Describing Statute passed in two years 501 Only one can be pleaded 511 Postponement of trial on amendment of indictment 503 Previous conviction, indictment for 509 Proof need not in all cases tally with statements in indict- ment 507-8 Quashing indictment for duplicity 504 For variance between information and indictment . . . .509-10 How and when quashed 51 Statute, indictment on 491 Creating new offence 492 Plea describing, as passed in two years 501 Surplusage does not vitiate an indictment 493 Conclusion of indictment for perjury 494 Time of committing offence need not be averred 506-7 Trial, postponement of, on amending indictment 503 Variance, quashing indictment for 509-10 Venue in indictment 508 Order to change - - - 508 In case of offences committed on carriages, etc 508-9 ^'. "- SS TOG INDEX. PAGE PLEADING {Continxml)— Voters, fuloniously omitting names from list of 501-2 POISON— Administering of 249-50 POLICE COURT - Stealing records of 'MO PRACTICE— (See the different titles throughout the Book).,. 512-038 Adjournment of Sessions 549-570 Of trial 008 Amending, information 516-520 Appeals from summary convictions 545 To Superior Courts 004 To Privy Council 035 Assault, complaint of 515 Bail, when granted 583 Certiorari, when granted 501 Challenges, when allowed 013 Commitment, warrant of 531 Contempts before Justices 529 Of Court of Sessions 579 Conviction following forms 521 When sufficient 520 Costs against public officer 525 On summary convictions 525 Attorney charging, when not sanctioned by law 545 On appeal to Sessions 551 In Crown cases 029-30 Counsel, who may act as 578 Two only allowed Oil • Criminal information 579 English law introduced in 20 Error, when writ of, lies 020 Grand Juries 590-1 Habeas Corpiis 553 Imprisonment, purposes for which imposed 539 ", Indictable offences, duties of Justices in relation to 527 Information before Justices 518 Jurors, exemptions, qualifications of, etc 594 INDEX. 707 PAOB PRACTICE (ContlnneJ)— JuHtices (if tlio Poaco 512-5G0 Now trials 631-2 Privy Council, appeal to 035 Record, Court of 570 Remand hy Justice 552-3 Summary convictions, duties of Justices on 517 View, when allowed 607-8 Warrant of arrest 528 PREVIOUS CONVICTION— Statement of, added to count for larceny 605 Indictment laying 509 Practice on GlO-11 Certificate of 611 PRINCIPAL— Liable for what he authorizes 103-4-5 Agent also liable (sec Agent) 1()4 PRINCIPALS— In first degree, must be present, assisting 97 And participating 97 Principals in second degree 97-8-9-100-1-2 Indictment against 102 PRISON breach- Is escape by force , 237 Is of same degree as offence for which party confined 239 Must be actual breaking 240 Need not be intentional 240 " Article or thing," in prison Act, includes crowbar 240' PRIVY COUNCIL— Appeals to 635- When and under what circumstances leave to appeal to, granted 636-7-g PROCEDURE IN CRIMINAL CASES— v Act as to, is not limited to felonies, or offences existing at time of passing 421 (N. B.)Rev. Stat. c. 159,8. 16 421 708 INDEX. PAOE PROCESS— Ponalty undor 22 Ooo. 2, c. 45, for slicing out 448 PROPERTY— Damaging, conviction for 621 PROSECUTION— All liable for, act, committed in prosecution of unlawful pur- pose 98-9-100 PROSECUTIONS— By Crown, how thoy differ from civil suits 012-3 PUNISHMENT— Cumulative undor 4 "Vic. , c. 30 448 QUARTER SESSIONS— (see Sessions) QUEBEC, PROVINCE OF— (.see English Laws in Force) RAPE— Ago of consent (.see Infant) 2G7-8 Assault, having connection with woman who believes it is her husband is 265 Attempt to commit, may be convicted of on indictment for. . 86 Attempt to ravish 267-8 Child from ton to twelve 267-8 Consent, must be absence of 204 Even in case of idiot 264 Or though obtained by fraud 264 By wife under supposition that it is her husband 264-5 Child under ten cannot give 267 But may to render attempt no assault 267-8 Child from ten to twelve, consent is defence on charge of assaulting 268 Contradiction (see Prosecutrix) . • . Definition 264 Emission of seed need not be proved , 268 Evidence, statement of prosecutrix 268 Not bound to disclose connections with other persons . .463-4 Force, necessary ingredient in 264-5-6 Fraud, consent obtained by 264-5 Husband cannot commit rape on his wife 264-5 INDKX. 709 FAUB RAPE (Cirntinncd)— Infant timlor ftnirtoon cannot commit 91 Idiot, imiHt 1)0 ovidonco that without consont of (sec Consent) 266-7 ProHocutrix tiinnot bo contiadictt'd if aaked as to connection with other porsons 403-4 Wife {see nus])aiid) Will, must bo against 264-6 RECEIVING STOLEN GOODS— Accossoiy, more receipt did not constitute 351-2 Conviction, proof of previous 350 Crime, stealing must be 352 Embezzled goods 353 Evidenco, of felonious 355 Of thief 350 Felony, principal crime, must bo 353 Husband adopting wife's receipt 3.35 Joint receipt need not be proved 354 Knowledge that goods stolon 355 Evidence of 479 Misdemeanor at common law 351 Mixture, proof of receiving 354 Possession must be parted with by thief 355 Previous conviction, proof of 350 Receipt must bo of stolen goods 353 By defendant 355 Separate receipts 354-5 Stealing of goods 352 Stolen goods {see Receipt) Wife receiving in presence of husband 355 Witnesses may prove that other articles found in prisoner's possession 479-80 RECORD— What is 483, et seq. Proofof 484 Court of, has power to fine and imprison for contempts. . ... 545 What power of fining and imprisoning necessary to consti- tute 579 Of conviction, caption may be amended 592-3 710 INDEX. PAGE REMA^i3— ByJnstices 552-3 By Court 553 How detained in latter case 553 EEPEAL OF STATUTE— When effected 77-8 REPLY— Reception of evidence in 488 Right of Cro^vn counsel to 612 RESERVATION OF POINTS OF LAW— Act as to, only authorizes Sessions to reserve case when origi- nal heai lUg and conviction there 553-4 No other Court can interfere till case is heard and finally de- termined 578-9 Court can only decide on points raised . 605-6 Cannot order new trial or prevent verdict from going into effect 605-G What points can be reserved 606-8-21 Arrest of judgment 606 When it is desired to take the opinion of Court on rulings of Judge 626-6 RESTITUTION— Writ of, in case of forcible entry 195 Jurisdiction of Court of Queen's Bench as to 196-6 RETURNING OFFICER— Recording names of persons as voting who refuse to take oath 82 RETURN TO HABEAS COBPUS- Disputing truth of 533-4 REVERSING CONVICTION— Effect of 524 REVISED STATUTES (N.B.)— Offence committed before not triable under 448 RIOT— ■ Defined 189 Difference between and unlawful Assembly 190 Must relate to private quarrel 190-1 INDEX. 711 PAGE RIOT (Continued)— Three persons or more inust be engaged in 190 Must be force and violence 191 And violence must bo premeditated 191 Presence among rioters, does not render a person liable .... 191 Riot Act need not be read 191-2 Suppressing riot, power of private persons, and Governor of colony to 1 92 When forcible entry amounts to 193 RIVERS — (see Nuisances, Highways, etc.) Benefit of obstruction immaterial 231 Capacity of, material 228 Court must decide what constitutes navigable 228 Freshet, cajiacity of stream in 229-30 Jury, under direction of Court, must find whether navigable 228 Lake Ontario, portion of, navigable 229 Navigable, what are 229 Piers, indictment will not lie for erecting 230-1 Portages, whether stream, navigable 228 Tide, flux and reflux of, not necessary to constitute navigable water 229 Rivers above, flow of 22 )-30 Usage, immemorial not necessary 227-8 What is navigable water 229-30 Not such as may be obstructed by ploughing and harrow- ing 229 Capacity in Spring freshets 229 Must be capable of transporting property 229-30 Wiera, only prohibited in navigable rivers 231-2 ROBBERY— Aggravated larceny 287 Anirtnis furandus necessary 288 Carrying away, necessary in 289 Definition 287 Duress, obtaining signature by. 289 Election on indictment 289 Felonious taking necessary 288 ..^-- Fear necessary ingredient 287 Must precede taking , 288 712 INDEX. PAGE ROBBERY {Continued)— Force necessary ingredient 287 Goods must be of some value 288 Indictment, election on 289 Several counts in 289 Person, goods m\ist bo taken from 288 Presence, goods must be taken in 288 Sudden taking, when robbery 288 Taking, actual, necessary 289 Value, goods must be of some 288 Will, goods must be taken against 288 rout- How distinguished from riot (see Riot) 190 RULES— Under the Criminal Appeal Act 604-5 SALE— Of office {see Office, offences by persons in 146 SEDUCING SOLDIERS OR SAILORS TO DESERT— Act now in force, how construed 118 Imprisonment under 119 Trial by Court of Oyer and Terminer 1 19-120 Summary conviction of offender 119 Indictment, when not sufficiently certain or precise 120 Mutiny Act of '07, to whom it relates 120 Warrant of commitment, when bad 120 Soldier must first answer to constituted tribunals 120-1 Volunteer triable by coiu-t martial 121 SENTENCE— Of death, wan-ant to execute 629 Of prisoner convicted of felony 629 SESSIONS— Assault, may try 279 Put not if capital felony 279 Charge against Clerk of Peace for misdemeanor in office, can try 148 Forgeiy, cannot try 370 Libel, cannot try 575 INDEX. 713 PAGE SESSIONS (Contimicd)— Perjury, cannot try 575 Can only reserve case for opinion of Siiperior Court when original hearing at 553-4 Is Court of Oyer and Terminer 576 Can alter judgments at same sessions or sittings 576-7 Adjourn, has general power to 576 Adjournment of, is continuance of same sessions or sittings . . 549 When Court of Queen's Bench can review proceedings of . . . . 561 Cannot make any order except during the Sessions, regular or adjourned 577 Bench warrant, seal to ,^ 577-8 Attorney acting as advocate in 578 When case stated for opinion of Superior Court, jurisdiction gone 578-9 May fine and imprison for contempt 579 Awarding costs on discharging appeal 630 SMUGGLING— (.see Customs Offences) 124 STATUTES— Annotations of miscellaneous. 413, et seq. Construction of (see Construction of Statutes) 410, et seq. Court will judicially notice public 487 What are public 487 STATUTE LABOUR— (see Highway) ft STRIKES— Aotaato 153 Construction of (see Monopoly) 154 SUBORNATION OF PERJURY— (see Perjury) 382 SUMMARY ADMINISTRATION— Of criminal justice 423 et seq. Act 32 & 33 Vic, c. 32, as to 423 Commitment, variances in 424 Not following form of conviction 424-5 Conviction not following statutory form 424-5 Not sustained by information 425 Notice shewing Court to be Police Magistrate's 425' 714 INDEX. PAGE SUMMARY ADMINISTRATION (Continued)— Evidence before Magistrate immaterial when there is proper commitment 426 When charge of keeping disorderly house sufficiently certain 426 Charge, Magistrate may ascertain nature and extent of 427 And reduce it to writing 427-8 Of assault and beating is not charge of aggravated assault . .428-9 SUMMARY CONVICTIONS— Justices had no jjower at Common Law 517 Act 32 & 33 Vic, c. 31, as to 517 Variance between information and evidence 517-18 Information must be laid 518 When in writing, or on oath 519 When sufficient 518-9 For several oflfences 519 Joint information 520 Appeals from, to Sessions 545 No power to reserve a case on 553 SUNDAY— (see Lord's Day). SURETIES TO KEEP PEACE- Final commitment for want of 637 What is.. 538 Should shew date 538 SUSPENSION— Of civil remedy, when felonj disclosed in evidence 73 Exceptions to rule 75 TELEGRAPHIC DESPATCH— Divulging contents of 445 Con. Stats. Can., c. 67, s. 16, does .\ot apply between \hird parties .445-6 TEMPERANCE ACT 440 Limited to places where temperance by-la^ ' is in force 441 Conviction under = 44:2 THREATENING TO ACCUSE— What is within 32 & 33 Vic, c. 21, s. 46 445 INDEX. 715 TITLES— ^^^^ Selling pretended 239 Act 32 Hy. 8, c. 9 * '. . . " ' ' 159 In force here on Intention of Statute jgo No conviction on admission I59 Repealed in Ontario 159-GO What is ofience within 259 TOLLS ON ROADS OF JOINT-STOCK COMPANIES— Act Con. Stats. U. C, c. 49, s. 43 43I Does not apply to person altogether exempt 431 Place of worship, going to, or returning from 432 Waggon conveying manure . 432 Conviction mu'it shew that defendant summoned and heard, and set out evidence, and shew information, plea, and de- mand of toll 432-3 But need not, if form given by 32 & 33 Vic., c. 31, s. 60, is followed ^3^ Conviction, when it sufficiently shews demand and non-ex- emption ^OA Need not name time for payment of fine 434 When Magistrate has jurisdiction, conviction only can be looked at 434.5 No ofience to exact tolls fixed by Commissioners 433 If once acquitted on appeal, cannot be tried a second time . . 435 TRADES' UNION ACT I53.4 TRIAL— Objections at 488-G09 Should be noted by Judge qqq Adjournment of, granted for illness of counsel 608-9 UNLAWFUL ASSEMBLY- Assemblage of persons to witness prize fight is 192 How distinguished from riot (see Riot) 190 UNLAWFUL PURPOSE - All liable fo" acts committed in prosecution of 98-9-100 VAGRANTS— Act 32 & 33 Vic, c. 28, as to 444 71 G INDEX. PAGE VAGRANTS (Cuitthmed)— Conviction should shew that person asked to give account of himself 445 Evidence should shew where person found 445 And that person is common prostitute 445 VARIANCE— On indictment for nuisance to a highway 233 VENIRE DE NOVO— Where verdict uncertain and ambiguous 602-628 In case of improper disallowance of challenge 617-627 In case of mistrial 627 Distinction between, and new trial 627 In case of abortive trial for misdemeanor or felony 627 After verdict, on charge of felony upon a good indictment before competent tribunal, etc 628. VENIRE FACIAS— Award of 593-4 VENUE— Of legal proceedings 508 VERDICT— Ambiguous or iincertain 602-3 Recommendation to mercy, no part of 603 Court shoiild be careful that it is unanimous 603 May be corrected before recorded 603 Counsel questioning jury aa to grounds of 603 Right to find general 603 Recording on Sunday 003 VIEW-- Always discretionary to grant, in criminal cases 607-8 Evidence, how taken on 608 WARRANT— Setting forth day and year when made, and authority of magis- trate 537 Direction of 528 Though irregular, it is justification 528 Is only prina facie evidence of its contents 528-9 INDEX. 717 PAGE WARRANT (Contimied)— Of commitment for indefinito time 531 Need not state that Justice had information on oath 531 Should shew phico where offence 'committed 53 i Technical precision of indictment not required 532 Not sufficient to call the offence a felony or misdemeanor 532 Particularity in ... 532 Under 31 Vic. , c. 16 535 One or two Justices issuing and signing 535 How Justice compelled to issue 535-6 To execute sentence of death 629 WIFE- A ccessory, when may be 96 Criminal liability of , 94-5-6 WITHDRAWING— Complaint for assault 515 WITNESSES— (see Evidence) No incapacity from crime or interest 369 Two required in perjury 400 And in treason 4C1 When guilty of contempt in not obeying subpoena 540 Confined in Penetentiary, how evidence obtained 557-8 Examined by Grand Jury, whose names are not on back of indictment 634-5 ERRATA. Pajfo 9— Reference (fi) for 8 C. L. J. n. 122, read 8 C. L. J. N. S. 122. Page 06— Reference {a) for ante p., read ante p. 56. Page 66— Reference {h)for ante p., read ante p. 52. Page 66— Reference (fi)for 4-45, read 44-o. Page 75— Reference (c) line 3, for 3 U. v. Q. B, read 3 U. C. Q. B. Page 75— Reference (c) line 3, for Marsh B. C. 551, read 6 B. & C. 551. Page 96— Reference (k) for Reg. v. JIayor Tewkesbury, L. R. Q. B. 035, per Black- burn, J., read L. R. 3 Q. B. Page 153— Reference (6) omitted 6 E. &. Page 263— Line 13 from top, the omitted after see. Page 269— Line 3 from bottom, vnll omitted before not.