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>.• '
IV-.
'»■
EXAMINATION QUESTIONS AND ANSWERS
ON
CI^I3^^II^T-A.IJ Xu.A.'^y^.
/iff
EXAMINATION QUESTIONS
AND
AN8WBE8
ON
CRIMINAL LAW
w
HENRY NEWBOLT ROBERTS,
Of Osgoode Hall, Barriiter^t-Law.
•
The amwen are taken /r<m HarrU* PHneiple* of Criminal Law,
Fourth Edition.
TORONTO:
GOODWIN & WINGFIELD, Law Publishers.
1889.
Enteied according to Act of Pariiament of Canada, In the year one thousand
eight hundred and eighty-nine, by Hbnrt NiwboiiT Robirtc, at the
Department of Agriculture.
CONTENTS.
Paper I
Paper II 7
••• ••• •••
Paper in '3
Paper IV '9
•• ,,
22
26
30
34
40
44
••• •••
Paper IV ...
Paper v ...
Paper VI ■..;■
^-■=« v„ ••;;••■
''*'^« vm
Paper IX
Paper x
Paper XI
Paper XII
• ... .„ ...
Paper XIII 5«
."
Paper XIV 55
Paper XV 59
Paper XVI "... ^ ^4
Paper XVII *". 6«
Paper XVIII ... 72
Paper XIX ...../"... '5
Paper XX ... 79
Paper XXI ..."...'".. «3
Paper XXII . *7
Paper XXIII ..."*...'"...*"... 9i
Paper XXIV 95
ng
; it
CEIMINAL LAW.
PAPER I.
1. Q. — Explain and illustrate by examples excus-
able homicide and juatijiable homicide,
A. — Exctuahle homicide is of two kinds : —
(i.) Homicide se defendendo upon sudden affray in
defence of a man s wife, child, parent or servant, and
not from any vindictive feeling.
(ii.) Homicide per infortunium, by misadventure or
accident. When a person doing a lawful act, without
any intention of hurt, by accident kills another.
N.B. — The act must be lawful, done in a proper
manner and with due caution.
E,g, — In a sparring match with gloves, or other
lawful amusement fairly conducted in a private
room.
Correcting in moderation a child, servant,
scholar or criminal entrusted to one's charge.
If, whilst doing a lawful but dangerous act, a
person uses such a degree of caution as to make it
improbable that any danger or injury will arise
to another or others.
8
EXAMINATION QUESTIONS AND ANSWERS
JustifiahU homicide, where no guilt or even fault
attaches to the slayer, is of three kinds : —
(i.) Execution of a criminal by the proper officer in
strict conformity with his legal sentence.
(iL) Where an officer of justice or his assistant in
the legal exercise of a particular duty kills a person
who resists or prevents him from executing it.
Homicide is justifiable on this ground in the fol-
lowing cases : —
(a) When a Peace-Officer or his assistant in
the due execution of his office, whether in a civil
or criminal cause, kills one who is resisting his
arrest or attempt to arrest.
(b) When prisoners in gaol or going to gaol
assault the gaoler or officer, and he, in his defence,
or to prevent an escape, kills any of them.
(c) When an officer or private person, having
legal authority to arrest, attempts to do so, and
the other flies and is killed in the pursuit.
N.B. — The ground of arrest must be a felony
or the infliction of a grievous wound.
(d) When an officer,in endeavouring to disperse
a mob in a riot or rebellious assembly, kills one
or more of them, he not being able otherwise
to suppress the riot.
(iii.) When the homicide is committed in the pre-
ON CRIMIlf AL LAW. 9
Tention of a forcible and atrocious crime : — highway
robbery, burglary, rape.
In justifiable homicide the killer is engaged in an
act which the law allows or enjoins poiitively ; while
in excusable homicide, he is about something which
the law negatively does not prohibit In neither case
is there the maUce which is an essential of a crime.
Harrii, 163 eUeq.
2. Q. — Distinguish larceny and robbery.
A. — Larceny is the wilfully wrongful taking posnes-
iion of the goods of another, with intent to deprive the
owner of his property in them.
Harris, 219.
Robbery is the felonious and forcible taking from
the person of another, or in his presence against his
will, of any money or goods to any value, by violence
or putting him to fear. The gist of this crime is the
force or bodily fear.
Harrie, 240.
3. Q. — Give an example of a crime shewing the
meaning of " Principal in the first degree," "Principal
in the second degree," "Accessory before the fact^"
" Accessory after the fact."
A. — ^A. incites B. and C. to murder a person. E
ii;
10 EXAMINATION QUESTIONS AND ANSWERS
enters the house and cuts the man's throat, while C.
waits outside to give warning in case anyone should
approach. B. and C. flee to D., who, knowing that the
murder has been completed, lends horses to facilitate
their escape. Here 6. is principal in the first degree,
C. is principal in the second degi*ee, A. accessory before
the fact, and D. accessory after the fact.
HarriSf 40.
1. Q. — Is it a good defence to an indictment for
bij]fainy : (tt) that the first marriage was a voidable
one ; (b) that the second marriage would have been
void for consanguinity ; (c) that the prisoner bona
fide believed his wife was dead at the time he con-
tracted the second marriage ?
A. — (a) No ; but otherwise if void ; (b) no ; (c) no.
Harris, 140.
6. Q. — A man by night breaks into the dwelling
house of another for the purpose of taking his own
goods which are wrongfully detained there. Is he
guilty of any, and if so, what crime ? Reasons.
A. — He is not guilty of any crime. A very neces-
sary ingredient is wanting to make the act the crime
of burglary, viz. : the inte it to commit a felony.
To constitute a burglary there must be an intent to
ON CRIMINAL LAW.
11
commit some felony in the dwelling house, otherwise
the breaking and entry will only amount to a tres-
pass. *
6. Q. — For what different purposes may evidenee
be given of other offences having been committed by
the prisoner, than the one for which he is being
tried?
A. — The general rule is that evidence of one offence
is inadmissible on the trial of the prisoner for another
offence, but there are exceptions :
(i.) In treason other overt acts may be given in
evidence, if they directly prove any overt acts which
are laid. And in conspiracy, sedition, libel and other
similar offences, wide limits are given to the reception
of evidence, inasmuch as the offences can only be
estimated by the surrounding circumstances.
(ii.) When it is necessary to prove the guilty know'
ledge of the defendant, evidence may be given of his
having committed the same offence before :
E.g. — In cases of uttering forged bank notes
and counterfeit coin, obtaining by false pretences
and receiving stolen property.
(iii.) When it is necessary to prove malice or intent
12 EXAMINATION QUESTIONS AND ANSWERS
on the part of the defendant, evidence of other offences
may under some circumstances be given.
E,g,— In a, trial for murder, evidence of former
unsuccessful attempts or threats to murder would
be admissible.
Harris, 457.
ON CRIMINAL LAW.
13
PAPER II.
1. Q. — Of what crime, if any, is a man gailty who
merely sees a murder committed, and takes no steps
to have the murderer punished, but keeps it secret ?
A. — Misprision of felony, which is the concealment
of some crime, other than treason, committed by
another. There must be knowledge of the offence
merely without any assent, for if a man assent he
will either be a principal or accessory.
Harris, 102.
2. Q. — Mention the four pleas known as special pleas
in bar in criminal cases.
A. — (i.) Autrefois acquit When a person has been
indicted for an offence and regularly acquitted he can-
not afterwards be indicted for the same offence, pro-
vided that the indictment were such that he could not
have been lawfully convicted on it.
(ii.) Autrefois convict. A former conviction may be
pleaded in bar of a subsequent indictment for the
same offence ; and this, whether judgment were given
or not.
(iiL) Autrefois attaint. Formerly when a person
14
EXAMINATION QUESTIONS AND ANSWERS
was attainted, so long as the attainder was in force
he was considered dead. Therefore a plea of an
already existing attainder was a bar to a subsequent
indictment for the same or any other felony, on the
ground that such second prosecution of a person
already dead and whose property was forfeited was
useless. But now an attainder is no bar unless for the
same offence as that charged in the indictment, so that
practically the plea of autrefois attaint is a thing of
the past.
(iv.) Pardon may be pleaded not only in bar to the
indictment as in the first three pleas, but also after
verdict in arrest of judgment, or after judgment in
bar of execution ; but it must be pleaded as soon as
the defendant has an opportunity of doing so, other-
wise he will be considered to have waived the benefit
of it.
These pleas are tesmed "special" to distinguish
them from the general issue, and "in bar" because
they shew the reason why the defendant ought not to
answer at all, nor put himself upon his trial for the
crime alleged, and thus they are distinguished from
dilatory pleas which merely postpone the result.
Harrit, 403.
3. Q.-— At what stage, and on what grounds, may a
ON CRIMINAL LAW.
15
motion in arrest of jwlgment be made in a criminal
case, and what is the effect of the success of such a
motion ?
A. — The defendant must move in the interval be-
tween conviction and judgment. The motion must be
grounded on some defect apparent on the face of the
record and not on some irregularity in the proceedings.
The objection must be a substantial one, such as want
of sufficient certainty in the indictment as to the
statement of facts, &lc. If judgment is arrested the
proceedings are set aside, no judgment is given and
the prisoner is discharged. But, unlike an ordinary
acquittal, the defendant may be indicted again on the
same facts.
Harris, 477.
4. Q. — If A. and B. combine together to break into
the house of C, for the purpose of taking goods of
A., which are wrongfully detained there, but do not
succeed in effecting an entrance, are they guilty of
any, and if so, what crime ? Reasons.
A. — They are guilty of conspiracy which is a coiU'
bination of two or more persons to do an unlawful
act, whether that act be the final object of the combi-
nation or only a means to the final end, which may le
lawful — and whether that act be a crime or an act
16
SXAMINATION QUESTIONS AND ANSWERS
hurtful to the public, a class of persons or an indi-
vidual In this case the ultimate purpose of the con-
spiracy is lawful, but the means to be resorted to are
criminal or at least illegal, in other words, a legal pur-
pose is to be effected with a corrupt intent or by im-
proper means.
Harris, 134r
5. Q. — Mention all the instances you can in which
a prisoner may be found guilty of a different crime
from that charged in the indictment.
A. — ^Upon an indictment for robbery, a prisoner
may be found guilty of an asMoidt with intent to rob.
Upon an indictment for larceny he may be found
guilty of embezzlement and vice versa. And wherever
a person is indicted for an offence which includes in
. it an offence of minor extent and gravity of the same
class, the prisoner may be convicted of such minor
offence. Upon an indictment for murder he may be
convicted of manslaughterf and so of simple larceny if
indicted for stealing in a dwelling house or any other
aggravated form of larceny.
Harris,47Z.
6. Q. — On the trial of an indictment for conspiracy
to commit a felony what difference does it make
whether the felony was actually carried out or not ? )
.«
ON CRIMINAL LAW.
17
I
A. — If the purpose of the conspiracy is actually
carried out, the conspiracy is merged in the felony ;
so that after a conviction for the felony a defendant
cannot be tried for the conspiracy.
Harris, 138.
7. Q. — Distinguish burglary from house-breaking, a,nd
larceny ivom. false pretences.
A. — Burglary is the breaking and entering of the
dwelling or viansion house of another in the night-
time (9 p.m. to 6 a.m.) with intent to commit a felony
therein. It is thus defined by The Larceny Act:
" Every one who enters the dwelling-house of another
with intent to commit any felony therein, or being in
such dwelling house commits any felony therein, and
in either case breaks out of such dwelling house in
the night-time is guilty of burglary."
R.S.G,, c. 164, s. 37.
In burglary there is a limitation as to time — night ;
as to the place — a dwelling house ; as to the
manner — the breaking and entering or breaking out.
In house-breaking the crime may be committed by
day and has a wider limitation with respect to the
buildings which are its subjects.
Q. v., R.S.C., c. 164, S.S, 40, 41.
18 BXAMINATION QUESTIONS AND ANSWERS
Larceny.~{yide answer to Q. 2, Paper I )
In W„ the owner of the thing stolen ha, „o
ynuon to part with his p.„perty the,^;, ^^ y,^
2-» *ak.ng i, although he .nay intend to part w h
he possesszon. In fal.e pretence, the owner doe,
Tl^r^ with his property in the n.oney o
cl«ttels, but it is obtained from him by fraud.
Harris, 261.
ON CRIMINAL LAW.
19
PAPER III.
1. Q. — Is Q, felony necessarily a more serious offence
than a misdemeanour ? Give an example illustrating
your answer.
A. — No. No one will maintain that perjury, which
is a misdemeanour, is of less gravity than simple
larceny, which is a felony. As a rule, however, the
more serious crimes are felonies.
Harris, 8.
2. Q. — Define the crime of riot
A. — A riot is a tumultuous disturbance of the peace
by three or more persons, assembling together of their
own authority, with intent mutually to assist one
another against any who oppose them in the execu-
tion of some enterprise of a private nature, and after-
wards actually executing the same, in a violent and
turbulent manner to the terror of the people, and this
whether the act intended be of itself lawful or
unlawful.
Harris, 109.
3. Q. — Explain and give an example of homicide
per infortunium. Is it a criminal offence, and if so,
what?
^
EXAMINATION QUESTIONS AND ANSWERS
A. — Homicide per infortunium is the second kind of
excusable homicide.— ^rt<2« answer to Q. 1, Paper I.)
It is not a crime, as R. S. C. c. 162, s. 6, enacts that
"no punishment or forfeiture shall be incurred by
any person who kills another by miefortunet or in his
own defence or in any other manner without felony."
4. Q. — Distinguish between the crimes of larceny
and embezzlement
A. — Larceny. — (Vide answer to Q. 2, Paper I.)
Embezzlement is the unlawful appropriation to his
own use, by a servant or clerk, of money or chattels
received by him for and on account of his master or
employer.
The latter differs from the former by clerks or
servants in this respect. Embezzlement is committed
in respect of property which is not at the time in the
actual or legal possession of the owner, whilst in
larceny it is : —
E,g. — A clerk receives S20.00from a person in
payment of some goods sold by his master;
he at once puts it into his own pocket, appropri-
ating it to his own use — this is embezzlement
The clerk appropriates to his own use $20.00
which he takes from the till — this is larceny.
HarriSf 251.
ON CRIMINAL LAW.
21
5. Q. — Is it necessary to constitute the crime of
forgery) (a) that there should be an intent to
defraud any particular person ; (6) that any person
should be defrauded ; (c) that any person should
be in a situation to be defrauded ?
A.— (a) It is not necessary to prove an intent to
defraud any particular person ; it will suffice to prove
generally an intent to defraud. (6) Nor is it necessary
that any person should be defrauded, (c) Nor that
any person should be in a position to be defrauded.
Harris, 289.
6. Q. — If general evidence of good character be
given for the prisoner on a criminal trial, in what
different ways may it be met on the part of the
Crown?
A. — By general evidence of bad character, but not
by particular cases of misconduct However for such
purposes previous coiivictions may as a rule be proved.
Harris, 458.
22
EXAMINATION QUEfiTIONS AND ANSWERS
I
!:
I
I
I ! '
PAPER IV.
1. Q. — What is the general rule as to the Imrden of
jiroof on a criminal trial ; and what qualifications are
there of such rule ?
A. — The burden of proof is on the prosecution as a
rule, and they must prove their case before the
prisoner is called upon for his defence; and this
although the offence alleged consists of an act of
omission and not of commission, and therefore the
prosecution have to resort to negative evidence. But
the rule is qualified. Thus by various Acts of
Parliament it is declared penal to do certain things or
possess certain articles without lawful excuse or
authority ; such excuse or authority must be proved
by the accused.
K,g, — To possess public stores or coining tools.
A^ain it lies on the defendant to prove that signals
to smuggling vessels were not made for the purpose of
giving illegal notice ; also to show some justification
for sending an unsea worthy ship to sea. But N.B.
that there is something to be proved by the prose-
cution in the first instance^ either the possesion of the
ON CRIMINAL LAW.
goods, or tho unseaworthiness of the ship. And in
roost cones of circumstantial evidence, there is a point
at which the prosecutor has done all that he can
reasonably be expected to do, and at which it is
reasonable to ask for evidence from the prisoner in
explanation, and to draw inferences unfavourable to
Iiim in its absence.
E.g. — The Court will expect an explanation
from the prisoner of the object for which poison
was purchased ; so also in the case of recent
possession of stolen goods. Killing is presumed
to be murder until it is otherwise accounted for.
Harrift, 454.
2. Q. — If a man break into a dwelling-house at
night without any intent of committing a crime
therein, what is the legal chaiucter of his act ?
A. — Trespass. — (Vide answer to Q. 5, Paper I.)
3. Q. — On a trial for murder is it a good defence :
(a) That the deceased was in ill-health, and
likely to die when the wound was given; (b) that
the immediate cause of death was the refusal of
the party to submit to an operation ; (e) that the
immediate cause of death was an improper appli-
cation to the wound and not the wound itself ?
A. — (a) No; (b) no; (c) yes.
Harris f 174,
I r~
24
EXAMINATION QUISTIONS AND ANSWERS
4. Q. — Two persons conspire to commit a felony,
and actually commit it. They are then tried for the
conspiracy, and afterwards for the felony. Can they
be convicted on both or either of such trials ? (Cf . Q.
6, Paper II.)
A. — ^The purpose of the conspiracy being a felony
and being actuaUy carried out, the conspiracy is
merged in the felony, so after a conviction for the
felony the defendant cannot be tried for the conspir-
acy. But if the defendant is indicted for the con-
spiracy, he is not entitled to an acquittal because the
facts shew a felony. Under such circumstances, how-
ever, he cannot be subsequently tried for the felony,
unless the Court has discharged the jury from giving
a verdict on the misdemeanour.
Harris, 138.
5. Q. — In what cases is it necessary for the Crown
to call more than one witness to prove a criminal
charge?
A. — (L) In treason or misprision of treason (except
where the overt act alleged is the assassination of the
Queen, or any direct attempt against her life or per-
son) two witnesses are required, unless the prisoner
^x^feiBes, Both witaessos must testify to the same
ON CRIMINAL LAW.
25
overt act of treason, or one of them to one overt act
and the other to an overt act of the same species of
treason, but collateral facts may be proved bj^^ one
witness.
(ii.) In perjury two witnesses are required, but it is
not necessary that both should directly contradict
what the accused has sworn; it is sufficient if the
second corroborates in any material circumstance, by
circumstantial evidence, or otherwise, what the first
has said.
Harris t 441.
(5. Q. — Define and distinguish Champerty and
Maintenance.
A. — Maintenance is the officious intermeddling in
a suit that in no way belongs to one, by maintaining
or assisting either party with money or otherwise.
Champerty is a species of maintenance. The dis-
tinguishing feature is that the bargain is ma<le with
the plaintiff or the defendant campuni partirc, that is,
in the evenu of success, to divide the land or other
subject matter of the suit with the champertor in
consideration of his carrying on the party's suit at
his own expense.
Harris, 9(S.
26
EXAMINATION QUESTIONS AND ANSWERS
PAPER V.
1. Q. — If, on the trial of a prisoner, for obtaining
goods hy false pretences, the evidence proves that the
offence was larceny, what verdict may the .jury give ?
A. — Upon an indictment for a misdemeanour, if
the facts given in evidence amount to a felony the
prisoner is not on that account to be acquitted of the
misdemeanour, unless the Court think fit to discharge
the jury and to order the defendant to be indicted
for the felony. Therefore upon an indictment for
obtaining goods by false pretences, if the offence
turns out to be larceny, the defendant is not on tJiat
account to be acquitted but may still be convicted of
false pretences, and the jury may bring in a verdict
to that effect. But before the verdict is given the
Court may, if it think lit, discharge the jury and
order the defendant to be indicted for the larceny.
Harris, 473.
2. Q. — What is the difference between treason and
other crimes, as regards the element of design ?
A. — In treason it is the designing that constitutes
ON CRIMINAL LAW.
27
the offence. But the design must be evidenced by
'some overt act, so that if there be wanting either the
design or the overt act, as when the design has been
formed, but laid aside before being put into execu-
tion, there is no treason. Conspirators meeting to
consult on the means of killing the Sovereign will
constitute a sufficient overt act to evidence the design.
Harris, 49.
In all other crimes there must be some carrying
out, or attempt to carry out, the design into action.
Harris, 15.
3. Q. — Define and distinguish the crimes of esoipe,
prison breach, and rescue ?
A. — Escape is the liberation of the party efiected
either by himself or others without force.
Prison-breach or prison-breaking is the liberation of
the party effected by himself without force. There
must be an actual breaking, though it need not be
intentional, to constitute this offence.
Rescue is the forcibly and knoicingly freeing another
from arrest or imprisonment.
Harris, 78 and 80.
4. Q. — If an indictment contains one count for a
felony, and another count for a misdemeanour, is it
28
EXAMINATION QUESTIONS AND ANSWERS
M >
open to any objection on that ground ? If so, how>
and when, may the objection may be raised ?
A. — If a count for a felony is joined with a count
for a misdemeanour, the indictment will be held bad
if demurred to, or judgment may be arrested if the
verdict has been general, (i.e. " Guilty " or " Not
Guilty," on the whole indictment) but not if the
prisoner is convicted of the felony alone.
Harris, 367.
5. Q. — Give three examples of killing by correction;
one which amounts to murder, another which amounts
to manslaughter, and a third which amounts ta
excusable homicide ?
A. — Killing by correction is :
(i.) Murder, when it is with a weapon likely to cause
death.
E.g. — An iron bar.
(ii.) Manslaughter, when it is with an instrument
not likely to kill, though improper for use in correc-
tion, or where the quantity of punishment exceeds
the bounds of moderation.
(iii.) Excusable, when correcting in moderation a
child, servant, scholar, or criminal entrusted to one's
charge. The instrument of correction used being a
proper one.
Harris, 182.
29
ON CRIMINAL LAW.
6. Q.-On a trial for murder, when the homicide
ha8 been proved, does the om» lie on the Crown to
prove the malice, which is necessary to make it
felonious, or on the prisoner to disprove it ?
A._If the mere fact of the homicide is proved the
l^presuno the u.alice which is necessary to make
. felonious ; and therefore it lies on the prisoner to
^sprove 1 by showing that it was either justifiable
or excusable lioinicide.
Hatris, 163.
li :
i
30 EXAMINATION QUESTIONS AND ANSWERS
n
PAPER VI.
1, Q. — Define accessory before the fact. What is
the extent of his criminal responsibility ?
A. — One, who being absent at the time when the
felony is committed, yet procures, counsels, commands,
or abets another to commit a felony.
Harris f 35 ; Q 1, Paper XV.
The accessory will be answerable for all that
ensues upon the execution of the unlawful act com-
manded, at least for all probable consequences. If
the principal intentionally commits a crime essenti-
ally di^erent from that commanded, the person com-
manding will not be answerable ns accessory for what
he did not command. But a mere difference in the
mode of effecting the deed, or in some other collateral
matter, will not divest the commander of the charac-
ter of accessory if the felony is the same in substance.
Harris, 36.
2. Q. — A., a servant of B., received certain money on
account of his master, which he entered in his
master's books, charging himself, however, with it>
ON CRIMINAL LAW.
81
but did not pay it over, claiming a right to it. Dis-
cuss the offence, if any.
A. There is no offence on the part of A. The nveie
non-payment to B. of the money which A. has charged
himself in his master's book with receiving is not
embezzlement. But, on the other hand, it would have
been no defence to an indictment for embezzlement
to merely show that he had entered the receipt cor-
rectly in his master's book. If, however, A. in ren-
dering his account admits the appropriation of the
money, alleging a right in himself, no matter how un-
founded, or setting up an excuse, no matter how
frivolous, his offence in taking and keeping is no em-
bezzlement. But where it was A.'s duty, at stated times,
to account for and pay over to B. the money received
during those intervals, his wilfully omitting to do so is
embezzlement, and equivalent to a denial of the
receipt of them.
3. Q. — What constructive breaking is sufficient to
establish the crime of burglary ?
A. — {Vide answers to Q. 3, Paper VIII.; and Q. 2.
Paper IX.)
4. Q. — State accurately any statutory changes
made in Canada, which have invaded the rule laid
II!
M
I
32 EXAMINATION QUESTIONS AND ANSWERS
.down ill criminal cases that the defendant is not a
competent witness.
A. — Subsection 2 of section 6, chapter 157, R.S.C.,
being an Act respecting offences against Public Morals
and Public Convenience provided that in every case
arising under sections 3, 4 and 5 of said Act, the
defendant shall be a competent witness in his own
behalf upon any charge or complaint against him.
Subsection 3 of section 2, chapter 161, R.S.C., enacts
that on an indictment for procuring a feigned or
pretended marriage, the defendant shall be a com-
petent witness in his own behalf.
Section 216 of chapter 174, R.S.C., provides that on
the summary or other trial of any person upon any
complaint, information or indictment, for common
assault, or for assault and battery, or if another crime
is charged but not proved, and the only case
apparently made out is one of common assault or
assault and battery, the defendant shall be a com-
petent witness in his own behalf.
5. Q. — State briefly what the prosecution have to
prove under an indictment for robbery in order to
secure a conviction.
A. The force or bodily fear, which is the gist of the
crime. It is not necessary, however, to show both
ON CUIMINAL LAW.
38
were present, one will suffice. The possession of the
goods taken //'o?/? the person or in the presence of the
party robbed. A complete removal of the goods from
the party robbed must also be proved, and also that
the taking was against the will of the person robbed.
Harris, 240.
6. Q. — What is the effect of an acquittal of a
prisoner upon technical grounds, as, for instance, a
defect in the proceedings ? What if acquitted on the
ground of insanity ?
A. — If he is acquitted on account of some defect in
the proceedings, and not on the merits of the case, he
I may be detained and indicted afresh. If he is
acquitted on the ground of insanity at the time of the
commission of the offence, whether such offence was a
felony or misdemeanour, he must be kept in custody
until the Queen's pleasure be known ; and the Queen
may order his confinement during her pleasure.
Harris, 474.
ti,
I
84
EXAMINATION QUESTIONS AND ANSWEU8
!
PAPER VII.
1. Q. — If a man sees anothoi* man commit murder
and keeps the fact a secret, is he guilty of any crime ?
If so, what ?
A. — {Vide answer to Q. 1, Paper II.)
2. Q. — In what two different ways may a receiver
of stolen goods be tried ?
A. — Receivers, where the principal crime amounts
to a felony at Common Law, or by the Larceny
Act, may be tried in either of the two capacities :
(i.) As accessories after the fact.
(ii.) As committers of a distinct or substantive
felony — and in this case, whether the principal has
or has not been convicted, or even if he is not amen-
able to the Criminal Law.
Harris, 246.
3. Q. — Is a man who persuades another to commit
suicide, guilty of any, and if so, of what crime?
A. — Yes. Murder.
4. Q. — What verdict ought the jury to render in
the following cases : — (a) The prisoner is indicted for
ON ClUMINAL LAW.
35
lanrn}/, but the evidence proves him guilty of
embezzlement ; (b) the prisoner is indicted for obtain-
inp (foods by false pretences, but the evidence proves
him guilty of larceny ?
A. — (a) A verdict of embezzlement.
Harris, 478.
(/)) (Vide answer to Q. 1, Paper V.)
5. Q. — What is the short test by which to deter-
mine whether a prisoner is entitled to be acquitted
on the plea of autrefois acquit ?
A. — Whether the facts charged in the second
indictment would, if true, have sustained the first.
Harris, 404.
(). Q. — Explain the distinction between larceny and
embezzlement.
A. — (Vide answer to Q. 4, Paper III.)
7. Q. — What effect has the existence of an insane
delusion on the criminal liability of the party enter-
taining it ?
A. — The party entertaining it must be considered
to be in the same situation as to responsibility as if
the facts with respept to which the delusion existft
were real.
E.g. — If under the influence of his delusion, he
suppose another man to be in the act of attempt-
S6 EXAMINATION QUESTIONS AND ANSWERS
ing to take away his life, and he kills that man,
as he supposes in self defence, he would be
exempt from punishment. If, however, his de-
lusion was that the deceased had inflicted a
dangerous injury to his character and fortune,
and he killed him in revenge for such supposed
injury, he would be liable to punishment. Not-
withstanding the party accused, did the act
complained of, with a view, under the influence
of insane delusion, of redressing or revenging
some supposed grievance or injury, or of produc-
ing some public benefit, he is nevei*thele8s
punishable if he knew at the time of committing
such crime that he was acting contrary to the
law of the land.
Harris, 22.
ON CRIMINAL LAW.
37
PAPER VIII.
1. Q. — What is the law as to the necessity for proof
of the finding of the body on a trial for murder ?
A. — Afl a general rule proof is required of the
finding of the ])ody of the deceased. But this rule is
not inflexible, as where direct evidence is brought be-
fore the jury which is sufficiently strong to satisfy
them that a murder has really been committed.
Harris, 174.
2. Q. — What is mispriaion of treason, and how has
the Common Law been altered in regard to the offence
now known by that name ?
A. — Misprision of treason consists in the bare
knowledge and concealment of treason, any degree of
assent making the party a principal. At Common
Law, this mere concealment, being construed as aiding
and abetting, was regarded as treason, as there is no
distinction into principals and accessories in treason.
But it was specially enacted that a bare concealment
of treason should be held misprision only.
Harris, 54.
38
EXAMINATION QUESTIONS AND ANSWERS
II
8. Q. — Give an example of constructive breaking
sufficient to constitute burglary.
A. — The breaking is constructive where admission
is gained by some device, there being no actual break-
ing.
E.g. — To knock at the door and then i*ush in
under pretence of taking lodgings, and fall on
and rob the landlord ; or to procure a constable
to gain admittance in order to search for traitors
and then to bind the constable and rob the house ;
or if the servants conspire with a robber and let
him into the house at night.
Harris, 274.
4. Q. — In what different ways, and at what stages
of the case respectively, may objections to tlie
sufficiency of an indictment be raised?
A. — If any essential ingredient of the offence is
omitted or not stated with sufficient certainty, the
defendant may move to quasli the indictment, or may
deraur7or if the defect is one which is not cure<l by
the verdict he may move in arrest of judgment, or
bring a writ of error. Such motion must be made
after the verdict and before judgment is given. All
objections to formal defects must be taken before the
jury are sworn, and they may then be amended by the
Court.
]f arris, 363.
ON CRIMINAL LAW.
39
6. Q. — Is it a good defence to a charge of murder
(a) that the deceased was in ill-health and likely to
die when the wound was given ; (h) that the im-
mediate cause of death was neglect on the part of the
doctor; (c) that the immediate caus» of death was
the refusal of the party to submit to an operation.
(Vide Q, 3, Paper IV.)
A. — (a) No; (/>) no; (c) no.
Harris, 174.
6. Q. — On the trial of a charge of obtaining money
by false pretences, will evidence be admitted : (a) to
prove that, before the offence in question, the accused
had obtained money by a similar false pretence ;
(b) that, after the offence in question, he obtained
money from some other person by the same pretence ?
If any such evidence is admissible, for what purpose ?
A. — In the former case such evidence is admissible
and is given to prove the intent to defraud ; in the
latter case the evidence is not admissible.
Harris, 265.
40
EXAMINATION QUESTIONS AND ANSWERS
l! 1
r ■
I •
§
fi 1
iiii
PAPER IX.
1. Q. — What is the gist of the crime of conajnracy?
A. — The combination; conspiracy being the combin-
ation of two or more persons to do an unlawful act»
whether that act be the final object of the combi-
nation, or only a means to the final end. And
whether that act be a crime or an act hurtful to the
public, a class of persons or an individual.
Harris^ 134.
2. Q. — Give an example of a constructive breaking
sufficient to constitute burglary ?
A. — (Vide answer to Q. 3, Paper VIII.)
3. Q. — What is the rule as to including two or more
offences in one count of an indictment; and what
exceptions are there to the rule ?
A. — As a rule more than one offence cannot be
charged in the same count. This is commonly
expressed by saying that a count must not be double
or is bad for dujdicity. Thus one count cannot charge
a prisoner with having committed a murder and a
robbery. There are however two exceptions to the
rule.
f!
ON CRIMINAL LAW.
41
I be
me
a
Ihe
(i.) An indictment for burglary usually charges the
defendant with having broken and entered tlie house
with intent to commit a felony, and also with having
committed the felony intended.
(ii.) And in indictments for embezzlement by clerks
or servants, or persons employed in the public service,
or in the police, the prosecution may charge any
number of distinct acts of embezzlement, not exceed-
ing three, which may have been committed against
the same master within six months, inclusive. But
even in this latter case it is usual to charge the
different acts in different counts.
Harris, 366.
4. Q. — Enumerate the cases in which an officer may
lawfully kill a person charged with crime.
A. — (i.) Where the proper officer executes a crim-
inal in strict conformity with his legal sentence.
(ii.) When an officer of justice, in the legal exercise
of a particular duty, kills a person who resists or
prevents him from executing it.
(a) When an officer or his assistant, in the due
execution of his office, whether in a civil or
criminal case kills one who is resisting his arrest
or attempt to arrest.
(b) When the prisoners in gaol or going to
gaol assault the gaoler or officer, and he in his
defence, to prevent an escape, kills any of them.
42 EXAMINATION QUESTIONS AND ANSWERS
(c) When an officer, having legal authority to
arrest, attempts to do so, and the other flies and
is killed in the pursuit.
N.B. — Here the ground of arrest must be either
dk felony or the infliction of a dangerous ivoumU
(d) When an officer in endeavouring to disperse
the mob in a riot or rebellious assembly, kills one
or more of them, he not being able otherwise to
suppress the riot.
In all these cases it must be shewn that the
killing was apparently a necessity.
Harris f 163.
5. Q. — Are the following good defences to a charge
of bigamy: (a) that the second marriage would
have been void in any case for consanguinity ;
(b) that, at the time of the first marriage, the wife
had a husband living, but who had been continually
absent from her for more than Boven j'ears, and not
known by her to be living within that time ; (c) that
at the time of the second marriage the prisoner bona
fide believed his wife to be dead ? ( Vide Q. 4, Paper I.)
A. — (a) No; {b) yes; (c) no.
HarriSf 140.
6. Q. — Define the crime of riot, and distinguish it
from an affray.
I i
- ON CRIMINAL LAW. 43
Of trdtT' *"''''' "" *^' '' ''''^''' "'•' '"' '*'^"'*'°''
An a/mj, is a ffghting between ««,o or more persons
»^Jo^P-Miep.ce...eWo.HerM?^:
nasmuch as there must be three pe^onT t^ Z.
Harris, 111.
4*4
EXAMINATION QUESTIONS AND ANSWERS
I ^!'
ii '^1
PAPER X.
1. Q. — Explain the nature and effect of the differ-
ent presumptions as to the criminal capacity of infants
of different ages.
A. — Infancy can be vf*c^ in defence only as evidence
of the absence of criminal iai.eiition, though there are
certain presumptioLS of he li oii the subject, some
of which may, some of which nia,^ not, be rebutted.
The age of discretion, and therefore responsibility^
varies according to the nature of the crime. What
the law technically terms " infancy " does not termi-
nate till the age of twenty-one is reached ; but this
is not the "infancy" which is the criterion in the
criminal law. Two other ages have been fixed as
points with reference to which the criminality of an
act is to be considered. Under the age of seven an
infant cannot be convicted of a felony ; for until he
reaches that age he is considered dolt incapax; and this
presumption cannot be rebutted by the clearest evi-
dence of a mischievous discretion. Between seven
and fourteen he is still considered doli incapax ; but
this presumption may be rebutted by clear and strong
ON CRIMINAL LAW.
4»
evidence of such mischievous discretion, the principle
of the law being malitia supplet aetatem. But there
is one exception to this rule, grounded on presumed
physical reasons. A boy under fourteen cannot be
convicted of rape, or similar offences, even though he
has arrived at the full state of puberty. Between
fourteen and twenty-one, an infant is presumed to be
doll capax, and accordingly as a rule may be convicted
of any crime, felony or misdemeanour. But this rule
is also subject to exceptions.
E.g. — In offences consisting of mere non-
feasance, as allowing felons to escape, &c.
Harris, 26.
In certain cases the law deals with juvenile offenders
in an exceptional way, in order, if possible, to prevent
their becoming confirmed criminals.
R. S. C, ch. 177.
2. Q. — What constitutes misprision of felony ? Ex-
plain by an example.
See Q. 1, Paper II.; Q. 1, Paper VII. and answers
thereto.
3. Q. — Give instances of a man killing another by
fighting : one in which the killing is murder ; another
in which it is manslaughter ; and another in which it
is excusable homicide.
•—mr ■-—.»-»-•
46
EXAMINATION QUESTIONS AND ANSWERS
\ J
i!l
i.H
■ 11
'■f
A. — Murder — Deliberately fighting a duel — or after
time for cooling — or under any other circumstances
indicating deliberate ill-will.
Manslaughter — In a sudden quarrel where the par-
ties immediately fight — or where the parties are
fighting in an unlawful amusement.
Excusable homicide — In a sparring match with
gloves, or other lawful amusement, fairly conducted
in a private room.
Harris, 1S2.
4. Q. —State accurately the rule of the criminal
law in reference to the evidence of an accomplice.
See Q. 6, Paper XIII. and answer thereto.
5. Q. — What is the difference between a challenge
to the array, and a challenge to the polls, on a crim-
inal trial ?
A. — The challenge to the array is an objection to
the whole body of jurors returned by the sheriff, not
on account of their individual defects, but for some
partiality or default in the sheriff or his under officer
who arrayed the pannel. The challenge to the polls
is where particular individuals are objected to, on
account of some defect, personal objection, bias or
conviction for an infamous crime.
Harris, 415.
ON CRIMINAL LAW.
47
6. Q. — What is the rule as to charging a prisoner
with distinct felonies on different counts of the same
indictments, and what exceptions are there to the
rule?
A. — In practice the rule is that different felonies
shall not be charged against a prisoner on different
counts, as this course would embarass him in his
defence. There are certain exceptions to this rule.
In an indictment for feloniously stealing any property^
a count or several counts for feloniously receiving the
same property knowing it to have been stolen, and
vice versa, may be added ; also in an indictment for
larceny, it is lawful to insert sevc^ral counts against
the same person for any number of distinct acts of
stealing, not exceeding three, which may have been
committed by him against the same person within the
space of six calendar months from the first to the
last of such acts, and to proceed thereon for all or any
of them.
Harris, 367.
There is a similar rule with regard to embezzlement.
Harris, 3t36.
Is/
48
EXAMINATION QUESTIONS AND ANSWERS
PAPER XL
1. Q. — Explain what is meant by involuntary man-
slaughter.
A. — When the death, not being intended, is caused
in the commission of an unlawful act, it is termed
involuntary manslaughter. By this is meant that the
unlawfulness of the act in which the accused is en-
gaged is the ground of the homicide being regarded
as manslaughter, and not homicide by misadventure
merely. By " unlawful " here must be understood
what is malum in se and not what is merely mala quia
prohibitum. Thus, then, if a man shooting at game
by accident kills another, it is homicide by misadven-
ture only, even although the party is not qualified-
It is immaterial whether the unlawfulness is in the
act itself or in the mode in which it is carried out.
If the unlawful act is a felony, the homicide amounts
to murder. One form of doing an act in an unlawful
manner is negligence. This consideration very fre-
quently presents itself in manslaughter. It may be
said generally that whatever constitutes murder when
done by fixed design, constitutes manslaughter when
it arises from culpable negligence.
Harris, 179.
11! i!
!ii i;
ON CRIMINAL LAW.
49
2. Q. — What statutory change has been made in
the common law mode of trying accessories ?
A. — Formerly accessories before the fact could
not be tried without their own consent, except at the
same time with the principal, or after the principal
had been tried and found guilty. They were merely
accessories, and therefore they could not be tried
before the fact of the crime was established.
Harris, 36.
Now two courses are open to the prosecution:
cither (a) to proceed against the person who counsels,
&c., as an accessory before the fact to the principal
felony together with the principal felon, or after the
conviction of the principal felon ; or (b) to indict the
counsellor for a substantive felony, whether the
principal felon has or has not been convicted, or is or
is not amenable to justice. (R.S.C., c. 145, s. 2.) And
section 1 also provides that an accessory before the
fact to any felony may be indicted, tried, convicted
and punished in all respects as if he were a principal
felon.
Accessories after the fact may be tried in the same
manner as accessories before the fact ; that is, either
as an accessory after the fact with the principal felon.
ffiSBBBna
50
EXAMII. ITION QUESTIONS AND ANSWERS
or after his conviction, or as for a substantive felony^
independently of the principal felon. (R.S.C., c. 145,
s. 4.)
li Q. — Define the crime of embracery.
A. — Embracery is an attempt to influence a jury
corruptly to give a verdict in favour of one side or
party, by promises, persuasions, entreaties, money»
entertainments and the like.
Harris, 96.
4. Q. — On a trial of A. for the murder of B. will
evidence be received to prove that on a former
occasion A. attempted to murder B.? Reasons.
A. — Yes ; to prove malice or intent on the part
of A.
Harris, 458.
5. Q. — What are the three classes of acts which the
crime of treason comprises ?
A.— (i.) Execution or contrivance of acts of violence
against the person of the sovereign.
(ii.) Acts of treachery against the State in favour
of a foreign enemy.
(iii.) Acts of violence against the internal govern-
ment of the country.
Harris, 47.
ON CUIMIXAL LAW.
51
In addition to these branches the law includes a
few acts which are of the rarest occurrence, and at
the present day hardly demand any notice.
6. Q. — What facts are necessary to make a finder
of goods guilty of larceny ?
A. — The true rule as to the appropriation of things
found amounting to an unlawful and felonious taking*
was laid down in R. v Thorhurn [18 L. J. (M. C.) 140.]
" If a man find goods that have been actually lost,
"and appropriate them, with intent to take the
"entire dominion over them, really believing when
" he takes them that the owner cannot be found, it is
"not larceny. But if he take them with the like
"intent, though lost, or reasonably supposed to be
" lost, but reasonably believing that the owner can be
"found, it is larceny." Thus to make the finder
guilty of larceny, he must have both this belief and
this intention at the time of the finding.
Harris, 232.
92
EXAMINATION QUESTIONS AND ANSWERS
J
1'=
11. it
I
PAPER XIi.
1. Q. — Can a person ever be convicted of larceny
for stealing his own p^oods ? If so, when ?
A. — Yes ; if they are in the hands of a bailee, and
the taking of them has the effect of charging the
bailee.
Harris, 231.
2. Q. — A. is standing on the middle of a bridge over
a river. B. at one end of the bridge points a
loaded gun at A. with intent to shoot him ; A. know-
ing B. to be his deadly enemy, and believing that B.
will shoot him, and having no other way of escape,
jumps into the river and is drowned. Is B. guilty of
any crime, and if so, what ?
A. — Yes ; murder. It is perfectly immaterial what
may be the form of death. Any act, the probable
consequence of which may be, and eventually is,
death, is murder, though no stroke be struck, and
even though the killing be not primarily intended.
Harris, 173.
3. Q. — What is the difference between a constable
ON CRIMINAL LAW.
53
and a private person, in regard to the right to arrest
another without a warrant, on suspicion of felony ?
A. — The constable is not liable to an action for
false imprisonment, although no crime has been
committed, if there were reasonable grounds for
suspicion. But a private person arrests at his peril,,
and is liable to the consequences of false imprison-
ment, unless he can afterwards prove that a felony
has actually been committed by some one, and that
there was reasonable ground to suspect the person
apprehended.
Harrist 348.
4. Q. — In a case of bigamy, what effect will be
produced on the liability of the accused to a convic-
tion by (a) proof that the first marriage was void on
account of consanguinity, or other like cause; (6)
proof that the second marriage would have been void
for a similar reason ? (Cf. Q. 4, Paper I ; Q. 5, Paper
IX.)
A. — (a) The accused will not be liable to be
convicted ; (b) it will have no effect on the liability
of the accused to a conviction.
Harris, 140.
5. Q. — What is the true test to determine whether.
I
54
EXAMINATION QUESTIONS ANJ> ANSWERS
in any particular case, an acquittal on a prior indict-
ment is a bar to a subsequent indictment under the
plea of autrefois acquit ? (Cf. Q. 5, Paper VII.)
A. — Whether the facts charged in the second in-
dictment would, if true, have sustained the first.
Harris^ 404.
6. Q. — State whether or not the following offences,
committed in the night, will or will not constitute
burglary : — (a) The thief gains admission through the
outer door being open, and then breaks open the door
of a room for the purpose of plundering; (b) the
thief gains admission by raising a window, already
partly open, and plunders the house, without break-
ing any inner door ; (c) the thief is a servant who is
lawfully in the house, but breaks the door of a room
in order to steal ; (d) a servant, lawfully in the house,
breaks open the sideboard to steal the plate out of it.
A. — (a) Yes; (h) no; (a); yes; (d) no.
Harris, 274.
7. Q. — Two persons agree to commit suicide to-
gether, one escapes, and the other dies. Is the former
guilty of any offence, and if so, what ?
A. — ^Yes ; murder, though it is extremely doubtful
whether he would be executed.
Harris, 170.
ON CRIMINAL LAW.
56
PAPER XIII.
1. Q. — What is the difference in effect between a
verdict of not guilty and an arrest of judgment ?
A. — If a verdict of acquittal is returned, the pris-
oner is forever free from the present accusation, and
he is discharged in due course, unless there is some
other charge against him.
Harris, 474.
If judgment is arrested, the proceedings are set
aside, no judgment is given, and the prisoner is dis-
charged. But unlike an ordinary acquittal, tlie
defendant may be indicted again on the same facts.
Harnsy 477.
2. Q. — What is the gist of the crime of piracy ?
A. — The place where it is committed, viz : the high
seas, and within the jurisdiction of the Admiralty.
Harris, 43.
3. Q. — When a prisoner, on a criminal trial, gives
general evidence of good character, how may such
evidence be met by the Crown ?
A. — [Vide answer to Q. 6, Paper III.)
I
56
EXAMINATION QUESTIONS AND ANSWERS
;
4. Q. — For what purposes, and at what stages of
the trial, respectively, is evidence of prior convictions
of the accused, admissible against him in a criminal
case?
A. — ^The allowing evidence of a previous convic-
tion to be given during the course of a criminal trial,,
so that it may affect the minds of the jury, is an
exception to the usual policy and practice of our
criminal law. As a rule, the only influence which a
previous conviction is allowed to exert is, after a ver-
dict has been given, on the judge in determining the
sentence.
Harris, 247.
In certain cases, if the prisoner has been previously
convicted, he is asked if he has been so previously
convicted, the previous conviction being also alleged
i'l the indictment. If he admits it the Court proceeds
to sentence him ; but if he denies it, or will not
answer, the jury are then, without being again sworn,,
charged to inquire concerning such previous convic-
tion, the point to be established being the identifica-
tion of the accused with the person so convicted,,
before the severer punishment consequent on a pre-
vious conviction is awarded. These cases are indict-
ments for: (a) felonies (not misdemeanours) men*
ON CRIMINAL LAW.
57
tioned in the Larceny Act ; or (6) for offences under
the Coinage Act, provided the previous conviction be
for some offence against that or some other Coinage
Act.
HarriSf 368.
The only case in which evidence of a previous con-
viction may be given before the subsequent conviction
is found is when the prisoner gives evidence of char-
acter. In this case the jury are to enquire of the
previous conviction and the subsequent offence at the
same time.
Harris, 475.
And again when proceedings are taken against a
person for receiving or having in possession stolen
goods, evidence may be given at any stage of the pro-
ceedings, of his previovs conviction within five years
of any offence involving fraud or dishonesty. But in
this last ease seven days* notice in writing must be
given to the accused that proof is intended to be given
of such previous conviction.
Harris, 247.
(And see Q. 4, Paper XX.)
5. Q. — A. wrongfully enters B.'s field, and takes
therefrom B.'s horse, intending at the same time to
58
EXAMINATION QUESTIONS AND ANSWERS
i
return it after taking a ride. A., however, changes
his mind, decides not to return the horse, and fraudu-
lently appropriates it. Is he guilty of larceny ?
Reasons.
A. — Yes. If the possession is obtained by trespass,
and there is a subsequent fraudulent appropriation,
though there was no fraudulent intention at first, it is
larceny. For all felony includes trespass, and every
indictment of larceny must have the words "felonice
cepit" as well as "asportavit" whence it follows that if
the party be guilty of no trespass^ in taking the goods,
he cannot be guilty of felony in carrying tliem away.
Harris, 228.
6. Q. — State accurately the rule of the criminal
law in regard to the evidence of an accomplice ?
A. — In practice, though not in strict law, it is
deemed essential that the evidence of the accomplice
should be corroborated in some material part by other
evidence, so that the jury may be led to presume that
he has spoken the truth generally. This confirmatory
evidence must be unimpeachable, and should not be
merely to the fact of the act having been committed,
but should extend to the identification of the prisoner
with the party concemod.
Harris, 441.
ON CRIMINAL LAW.
59
IS
|oe
cr
lat
ij
i)e
id.
PAPER XIV.
1. Q. — Will the following acts constitute forgery :
{a) To paint an artist's name in the corner of a
picture, in order to pass it off* as an original picture
by that artist ; (b) to sign a note in the name of a
fictitious person ; (c) for a man to make a false deed
in his own name ? Reasons.
A. — No ; for the forgery must be of some document
or writing (b) yes ; (c) yes ; as when a person has
made a conveyance in fee of land to A., and after-
wards make a lease for 999 years of the same land to
B., of a date prior to that of the conveyance to A.
for the purpose of defrauding A. In {b) and (c) the
the forgery is of a writing and document.
Harris, 287.
2. Q. — Could a man be convicted of larceny at
common law if he had no felonious intent at the
time he took the goods ? If so, under what circum-
stances ?
A. — Yes; for one case see answer to Q. 5, Paper
XIII.
60
EXAMINATION QUESTIONS AND ANSWERS
I
And also in tlie case of a servant who has merely
the care and custody of the goods of his master, and
appropriated them, as the felonious intention need not
appear at the time of delivery.
Harris, 229.
3. Q. — Show how the killing of one man by another
unintentionally, whilst doing another act, may be
murder^ mantlatighter, or excusable homicide, according
to circumstances.
A. — Killing, without intending to kill, whilst doing
another act, may be :
Murder, if that other act is a felony ;
Manslaughter, if that other act is unlawful, i.e.
malum in se ;
Excusable, if that other act is lawful, that is, not
malum in se.
And if the act is a lawful but dangerous one ; e.g.^
driving, the killing may be : #
Murder, if the driver perceives the probability of
the mischief, and yet proceeds with his act ;
Manslaughter, if he might have seen the danger if,
as he ought to have done, he had looked before him,
or if, though he previously gave warning, this warn-
ing was not likely to prove entirely eflfectual, e.g.
driving in a crowded street ;
ON CRIMINAL LAW.
61
Excusable, if he uses such a degree of caution, as to
make it improbable that any danger or injury will
arise to others.
Harris, 183.
4. Q. — What is the most intelligible distinction
between larceny and obtaining property by false pre-
tences ; and in cases of doubt, which crime is it better
to charge in the indictment, and why ?
A. — In larceny the owner of the thing stolen has no
intention of parting with his property therein to the
person taking it, although he may intend to part with
the possession ; in false pretences the owner does in-
tend to part with his property in the money or
chattels but it is obtained from him by fraud. The
line between the two crimes is very narrow. The
difficulty of discriminating arises chiefly where there
has been a constructive taking only where the owner
delivers the property, though the possession is
obtained by fraud. The evil which might arise from
this state of things is to some extent obviated by a
provision that if upon an indictment for false pre-
tences it is proved that the defendant obtained the
property in such a manner as to amount in law to
larceny, he is not on that account to be acquitted.
Cj
; '<•
62 EXAMINATION QUESTIONS AND ANSWERS
Therefore in cases of doubt it is better to indict for
false pretenses.
Htfrris, 2C1 ; (and see Q. 7, Paper II.)
5. Q. — Mention and explain the different kinds of
challenge to which a prisoner is entitled on a criminal
trial ?
A. — Challenges are of two kinds :
1. For cause.
(i.) To the array, when exception is taken to the
whole pannel, not on account of their individual
defects, but for some partiality or default in the
sheriff, or his under officer, who arraj^ed the pannel.
(a) Principal challenge ; founded on some mani-
fest partiality, or on some error on the part of
the sheriff.
(b) Challenge for favor ; where the ground of
partiality is less apparent and direct.
(ii.) To the polls ; when particular individuals are
objected to. *
{a) Principal challenge ;
(1) Propter honoris respectum, where a peer
or lord of parliament is sworn on a jury for the
trial of a commoner.
(2) Propter defectum, on account of some
personal objection, as alienage, infancy, old age,
or a want of the requisite qualification.
i
ON CUIMINAL J.AW.
63
(3) Propter affectum, where there is supposed
to be a bias or prospect of partiality, or wlien
an actual partiality is manifested.
(4) Propter delict am, if a person has been con-
victed of an infamous crime.
(b) Challenge for favor, when there is reason-
able ground for suspicion, but not sulliciont
ground for a principal challen^^o propter a(f'ectiiin.
2. Peremptory challemjes. In felonies, the prisoner
is allowed to arbitrarily challenge, and so exclude a
certain number of jurors, without showing any cause
at all. He cannot claim this right in misdemeanours,
but it is usual, on application to the proper officer, for
him to abstain from calling any name objected to by
the defendant (or prosecution) within reasonable
limits. The defendant may peremptorily challeni^e
thirty -five in treason, excepting a direct atteni[>t
against the Queen's life, and in that case, in murdur
and all other felonies, he may peremptorily challenge
twenty. Challenges made above those numbers are
void.
Harris, 414 to 41 <S.
64
EXAMINATION QUESTIONS AND ANSWERS
III
! ;
PAPER XV.
1. Q. — Define an accessory before the fact,
A. — One, who being absent at the time when the
felony is committed, yet procures, counsels, commands
or abets another to commit a felony.
Harris, 35 ; Q. 1, Paper VI.
N.B. — An accessory is absent at the. time of
the performance of the offence.
2. Q. — What is an affray, and how does it differ
from an assault, and from a riot ?
A. — An affray is a fighting between two or more
persons in some public place, to the terror of Her
Majesty's subjects ; for example, a prize fight. If it
takes place in private it will be an assault.
Harris, 111.
But an assault is also an attempt or offer to commit
a forcible crime against the person of another ; f<
example, presenting a loaded gun at a person. It wiii
be noticed that there need not be an actual touching
of the person assaulted.
HarriSy 201.
ON CRIMINAL LAW.
66
See answer to Q. 6, Paper IX, as to the difierence
between an affray and a riot.
3. Q. — If a man be tried for murder^ and acquitted,
can he be afterwards convicted of manalaughter upon
the same facts ? Why ?
A. — No ; because on the indictment for the graver
offence, which includes in it the offence of minor
extent of the same class, he might have been con-
victed of the latter, if there had been sufficient proof.
Harrii, 474.
4. Q. — For what different purposes may evidence
of a prior conviction be given against a prisoner on a
criminal trial ?
A. — The allowing evidence of a previous conviction
to be given during the course of a criminal tiial, so
that it may affect the minds of a jury, is an exception
to the usual policy and practice of our criminal law.
As a rule, the only influence which a previous convic-
tion is allowed to exert is, after a verdict has been
given, on the judge in determining the sentence.
HarriSf 247.
In certain cases, if the prisoner has been previouily
c victed, he is asked if he has been so previously con-
r cted ; the previous conviction being also alleged in
66
EXAMINATION QUESTIONS AND ANSWERS
the indictment. If he admits it, the court proceeds
to sentence him. But if he denies it, or will not answer,
the jury are then, without being again sworn, charged
to inquire concerning such previous conviction ; the
point to be established being the identification of the
accused with the person so convicted, before the
severer punishment consequent on a previous convic-
tion is awarded. These cases are indictments for {a)
felonies (not misdemeanours) mentioned in the Lar-
ceny Act, or [h) for offences under the Coinage Act,
provided that the previous conviction be for some
offence against that or some other Coinage Act.
Harriiy 368.
The only case in which evidence of a previous con-
viction may be given before the subsequent conviction
is found, is when the prisoner gives evidence of char-
acter. In this case, «iie jury are to inquire of the
previous conviction, and the subsequent offence at the
same time.
Harris^ 475.
And again, when proceedings are taken against a
person for receiving or having in his possession stolen
goods, evidence may be given at any stage of the pro-
ceedings of his previous conviction within five years
(i; ;
67
ON CRIMINAL LAW.
oU„^ offence involving fraud or dishonesty. But in
S^^u. to the accused that proof is intended to be
g'ven of such previous conviction,
ffurm, 247 ; (and see Q. 4, Paper XIII.)
•J- Q— Distinguish r«iJ«,.^ from i,„.,,,„^
^-(See Q. 2, Paper ], and answer thereto.)
6. Q.-Shewin what way intent is a more import
ant e,e,„e„t in ,..„.„„ than it is in nurder "^
stitt t « ™*' "■'""• " '^ "^^ '"'«»* -Weh con-
«t.tutestheortence; while in the latter, there must
;.^.omeatt.„pti„ addition to the intent to comlt
Jl">ris, 49 ; (and see answer to Q. 2, Paper V.
'I
i I
m
68
EXAMINATION QUESTIONS AND ANSWERS
r
I,.
I ''■'■
jti;
PAPER XVI.
1. Q. — Are the directors of a railway company
liable for any, and what, criminal offence, if, owing to
the fact of the permanent way being left, through
negligence, out of repair, an accident happens, causing
death ? Give your reasons.
A. — If it could be shewn that the want of repair
was the necessary consequence of the negligence of
the directors, they would be guilty of manslaughter ;
but they would not be subject to any criminal liabil-
ity if the deaths were caused through the negligence
of workmen or others in the employment of the
company.
2. Q. — Describe the proceedings at the trial of a
prisoner on an indictment.
A. — The proceedings commence with the arraign-
ment of the prisoner. Assuming that on arraignment
he pleads "not guilty," the petty jury are thereupon
sworn (subject to the prisoner's right of challenge),
and he is given in charge to them. The counsel for
the prosecution then opens his case to the jury, stating
HiV,
M
m
•
t' a
lent
)on
I for
ON CRIMINAL LAW.
the principal facts to be proved, and calls and exam-
ines his witnesses, who may be cross-examined by
the prisoner's counsel, and re-examined by counsel for
the prosecution on facts referred to in the cross-
examination. On the close of the case for the prose-
cution, if the prisoner has witnesses, his counsel opens
his case to the jury, calls and examines his witnesses,
who may be cross-examined and re-examined, and
then sums up his evidence, and the counsel for the
prosecution replies on the whole case. But if no
witnesses are called by the prisoner, the counsel for
the prosecution addresses the jury for the second
time at the close of the case for the prosecution, after
which the prisoner's counsel addresses the jury. The
judge then sums up, and the jury give their verdict,
after which (if they find the prisoner guilty) sentence
is passed ; the prisoner (in cases of treason and felony)
being usually asked, before sentence, if he has any-
thing to say why sentence should not be passed on
him. If there is any ground for moving in arrest of
judgment, the motion must be made after verdict and
before sentence is passed.
Harris, 396 ; Ch. XII.
3. Q. — Mention any rules of evidence specially
applicable in criminal cases.
, 1.
70
EXAMINATION QUESTIONS AND ANSWERS
S
A. — The prisoner is presumed to be innocent till
the contrary is proved ; he is not to be convicted on
the uncorroborated evidence of an accomplice ; a con-
fession made by him is admissible in evidence,
provided it was free and voluntary; neither the
prisoner nor his or her wife or husband can be a wit-
ness ; a dying declaration made by a person as to the
cause of his death is admissible in evidence on a trial
for the murder or manslaughter of such person ;
evidence as to the prisoner's character is admissible
under certain conditions.
H«rn>, Ch. 17.
4. Q. — Give examples of justifiable and excusable
homicide, respectively.
A. — (See answer to Q. 1, Paper I.)
5. Q. — Under what circumstances may a man find-
ing lost goods and appropriating them to his own use,
be indicted for larceny ?
A. — (See and Cf. Q. 6, Paper XI, and answer thereto.)
(). Q. — A., a police officer, having a warrant for th«
arrest of B., on a charge amountin- to misdemeanour,
meets him on the highway. B. resists arrest and runs
away, and in the pursuit A. fires his pistol after B.
and kills him. Is A. liable to indictment for any, and
if any, what offence ?
"N CRIMINAI. LAW. y,
A.~Yes; murder, as B. is charged with a m,-«d«
Harris, \Qf),
i
1
n b
72
EXAMINATION QUESTIONS AND ANSWERS
PAPER XVII.
1. Q. — Distinguish "burglary from house-hreakinf/.
A. — (Vide Q. 7, Paper II., and answer thereto.)
2. Q. — On a trial for murder on whom does the^
burden of proof lie as to the question of malice afore-
thought ? Why ? •
(C/. Q. 6, Paper V.)
A. — On the accused, because on the mere fact of the
homicide being proved, the law presumes the malice
which is necessary to make it felonious ; and, there-
fore, it lies on him to prove that it was justifiable or
excusable.
Harris f 168.
3. Q. — Distinguish riot from unlawful assembly.
A. — A riot (Q. 2, Paper III.) is the outcome of an
unlawful assembly which is any meeting of three or
more persons under such circumstances of alarm,
either from the large numbers, the mode or time of the
assembly, &c., as, in the opinion of firm and rational
men, are likely to endanger the peace, there being no
aggressive act actually done. It is the first step to
the graver crime of riot.
ON CRIMINAL LAW.
73
E.g. — A hundred men armed with sticks meet
together at night to consult about the destruction
of a fence which their landlord has erected ; this
is an unlawful assembly. They march out to-
gether from the place of meeting in the direction
of the fence ; this amounts to a rout, the inter-
mediate step between an unlawful assembly and
a riot. They arrive at the fence and, amid great
confusion, violently pull it down ; this is a riot.
Hanis, 108, 109.
4. Q. — What is the present doctrine of our criminal
law as to insanity forming a defence to an indictment
for murder ?
A. — To establish a defence on the ground of insan-
ity it must be clearly proved that, at the time of the
committing of the act, the party accused was lab Dur-
ing under such a defect of reason, from disease of the
mind, as not to know the nature and quality of the
act he was doing, or, if he did know it, that he did
not know he was doing what was wrong. Thus the
question of knowledge of right or wrong, instead of
being put generally and indefinitely, is put in refer-
ence to the imrticular act at the particular time of
committing it.
?Iarri«, 22.
:
.!»
74
EXAMINATION QUESTIONS AND ANSWERS
The insanity must have been of such a kind as
entirely to deprive the prisoner of the use of
reason as applied to the act in questioHf and of the
knowledge that he was doing wrong in committing it.
AlisovCs Principles of Crim, L, in Scotland f 645, 654.
5. Q. — Under what circumstances may a dyitig
declaration not made upon oath be received in evi-
dence on a criminal trial ?
A. — Only when the death of the deceased is the
subject of the charge, (that is, in case of murder or
manslaughter), and then only if the declaration refers
to the injury which was the cause of the death, and
it appears to the satisfaction of the judge, that the
deceased was conscious of being in a dying state at
the time he made the declaration.
Harris, 461.
I ''
ON CRIMINAL LAW.
7S
PAPER XVIII
1. Q. — Define the crime of conspiracy, and distin-
guish the three classes into which the crime is
divided.
A. — Conspiracy is a combination of two or more
persons to do an unlawful act, whether that act be
the final object of the combination or only a means to
the final end ; and whether that act be a crime or an
act hurtful to the public, a class of persons or an in-
dividual.
Three classes may be distinguished :
1. When the end to be accomplished would be a
crime in each of the conspiring parties; in other
words, a conspiracy to commit a crime.
2. When the ultimate pui-pose of the conspiracy is
lawful, but the means to be resorted to are criminal,
or, at the least, illegal; in other words, to effect a
legal purpose with a corrupt intent or by improper
means.
3. Where the object is to do an injury to a third
party or a class ; though if the wrong were inflicted
by a single individual, it would be a wrong and not a
crime.
Harris f 134.
76
EXAMINATION QUESTIONS AND ANSWERS
2. Q. — Mention all the cases you can in which a
prisoner may be convicted of a crime not charged in
the indictment.
A. — (See Q. 5, Paper IT., and answer thereto.)
3. Q. — Define and distinguish principal in the first
degree, principal in the second degree, accessory
before the fact, and accessory after the fact.
A. — Principal in the first degree. — He who is the
actor or actual perpetrator of the deed. He need not
be actually present when the offence is consummated,
nor need the deed be done by his own hands.
Principal in the second degree. — One who is present
aiding and abetting at the commission of the deed.
This presence need not be actual ; it will be sufficient
if the party has the intention of giving assistance,
and is near enough to give the assistance. There
must be both a participation in the act and a com-
munity of purpose (which must be an unlawful one)
at the time of the commission of the crime. So that
mere presence or mere neglect to prevent a felony
will not make a man a principal ; and acts done by
one of the party, but not in pursuance of the arrange*
ment, will not render the others liable.
ON CRIMINAL LAW.
77
fe
The distinction between principals in the first and
second degree is not a very material one, as the
punishment of each is generally the same.
Accessory before the fact, — One who being absent
at the time when the felony is committed, yet pro-
cures, counsels, commands, or abets another to
commit a felony. This may be done not only by
direct command or counsel, but also by expressing
assent or approbation of the felonious design of
another.
Accessory after the fact. — One who, knowing a
felony to have been committed by another, receives,
relieves, comforts, or assists the felon.
For a case in which examples of each of the four
kinds of participation in a crime will be found
see Q. 3, Paper I.
4. Q. — Explain what is meant by seditious libel.
A. — Seditious libels are such political writings or
words as do not amount to treason, but which are not
innocent. They should have a plain tendency to pro-
duce public mischief by perverting the mind of the
subject and creating a general dissatisfaction towards
government.
Harris, 57,
78
EXAMINATION QUESTIONS AND ANSWEIiS
J I
5. Q. — Distinguish manslatightcr from hotnicide ae
defendendo,
A. — ^In the latter, the ground for the blow, etc., is
the necessity to take such a step for self-preservation ;
the slayer could not escape if he would, and has done
all that he can to avoid the struggle or its continuation.
In the foi*mer, the necessity does not exist, but its
place is taken by a sudden accession of lU-will. The
slayer would not escape if he could, and the killing is
done in the actual combat.
fTrtm*, 168, 179.
6. Q. — Explain the meaning of misprision of
felony ?
A.— (See Q. 1, Paper II.; Q. 1, Paper VII.; Q. 2,
Paper VIII.; Q. 2, Paper X.)
i
ii 'II
i:
ON CRIMINAL LAW.
79
PAPER XIX.
1. Q. — Define unlawful atsemhly and riot.
A. — An unlawful assembly is the meeting together
oi three or more persons with such accompanying
circumstances as are likely to inspire people with ter-
ror ; there being, however, no aggressive act actually
done.
Harris, 108.
For riot see answer to Q. 2, Paper III, and see
also Q. 3, Paper XVII.
2. Q. — Define robbery and house-breaking.
A. — Robbery is the felonious and forcible taking
from the person of another, or in his presence against
his will, of any money or goods to any value, by
violence or putting him to fear.
-.- House-breaking is the breaking and entering a
dwelling-house, school-house, shop, warehoase or
counting-house, and committing a felony therein, or,
being therein, committing a felony and breaking out
(where such offence does not amount to a burglary) ;
80
EXAMINATION QUESTIONS AND ANSWERS
! i
or breaking and entering a dwelling-house, church,
chapel, meeting-house, or other place of divine wor-
ship, or any building within the curtilage, school-
house, shop, warehouse, or counting-house, with intent
to commit any felony therein, although such felony
shall not in fact have been effected.
R. S. C, c. 146, ss. 40, 41; Harris, 277.
3. Q. — Distinguish between larceny^ embezzlement
and obtainin.cr by false pretences.
A. — Larceny is the taking and carrying away a
chattel out of tlie possession of another, with a feloni-
ous intent to appropriate it without the owner's
consent. Embezzlement is the felonious conversion by
a clerk or servant to his own use of property received
by him on account of his employer, such property
not being in the actual or legal possession of the
employer. Obtaining by false pretences, differs from
larceny in that the owner intends (though the inten-
tion is produced by fraud), to part with his property
in the money, and not merely with the possession of
it ; whereas in larceny he has no intention to part
with the property, though he may intend to part
with the possession.
(And see answer to Q. 7, Paper II.; Q. 4, Paper III.;
Q. 6, Paper VII)
ON CRIMINAL LAW.
81
4. Q. — Define manslatightcr as distinguished from
murder.
A. — Manslaughter is unlawful homicide without
'malice aforethought, either express or implied ; the
distinction between this offence and murder being
that the latter is unlawful homicide ivith malice.
5. Q. — Under what circumstances is it proper to
receive in evidence on a criminal trial : (1) the con-
fession of the accused ; (2) the dying declaration of a
deceased person ?
A. — (1) Only where the confession was free and
voluntary. What amounts to a free and voluntary
confession is not quite clear ; but it seems that a con-
fession will usually be admissible, unless it has been
made in consequence of some inducemeL j of a tem-
poral nature having reference to the charge againnt
the prisoner, held out by a person having authority
over him in connection with the charge, as, a magis-
trate, a constable, the prosecutor, or the prisoner's
master.
Harris, 399.
(2) Only when the death of the deceased is the
subject of the charge, (that is, in a case of murder or
manslaughter) ; and then only if the declaration
refers to the injury whicl) was the cause of the death,
II
82 EXAMINATION QUESTIONS AND ANSWERS
and it appears to the satisfaction of the judge that
the deceased was conscious of being in a dying state
at the time he made the declaration.
Harris, 40; (Q. 5, Paper XVII.)
6. Q — Can a person under any and what circum-
stances be found guilty of murder who did not intend
to commit same, or do injury to any human being ?
A. If a person, while committing a felonious act,
accidentally kills another, he is legally guilty of mur-
der, even though he had no design to kill or do injury
to a human being; as where a person shooting at a fowl,
with intention to steal it, accidentally kills a person
not known by him to be near.
Harris, 172.
It is improbable, however, that this technical rule
would now be acted on.
Broom, C. L., 5th ed., 904.
J %
1 iv
ON CRIMINAL LAW.
PAPER XX.
1. Q. — What defences besides 7iot guilty are opea
to a pei*son cliarged with a criminal offence ?
A. — He may plead a dilatory plea, or a special
plea in bar, or he may put in a demurrer.
Dilatory pleas, so called because they merely post-
pone the result, are :
(a.) A plea to the jurisdiction, that the indictment
is taken before a Court which has no cognizance of
the offence. This plea, however, is seldom resorted
to, as the objection may be more conveniently raised
in other ways ; (6.) a j^Ze^ in abatement, which was
formerly used chiefly where the defendant was mis-
named in the indictment, but has become obsolete,
owing to the powers which the Court now has of
amending the indictment.
Harris, 401, 403.
Special pleas in bar. — (Q. v., Q. 2, Paper 2.)
A demurrer is an objection to the indictment in
point of law only. It is seldom resorted to, as it
amounts to an admission by the prisoner, that the
t si
84 EXAMINATION QUESTIONS AND ANSWERS
facts alleged in the indictment are true, and there
are other ways in which objections in law to the
indictment may be taken without admitting the facts
alleged in the indictment.
Harris, 408.
2. Q. — Define obtaivdng by false pretences and perjury.
A. — Obtaining by false pretences is the false pre-
tence of an existing fact with intent to defraud, and
the obtaining of money or goods by means of such
false pretence.
Perjury is the crime committed by one who, when a
lawful oath is administered to him in some proceed-
ing in a court of justice of competent jurisdiction..
swears ivillfully, absolutely and falsely in a matter
material to the issue or point in question.
Harris^ 82.
3. Q. — What is the law as to giving evidence of a
prisoner's bad character ?
A. — Such evidence, as it does not directly tend to
prove the matter in issue, is in general inadmissible ;
but where evidence of the prisoner's good character
has been given on his behalf this may be disproved
by evidence that he has a bad character, and for this
purpose previous convictions may be proved against
him.
Harris, 458; Q. G, Paper IH.; Q.4, Paper XIII.
ON CRIMINAL LAW.
85
)f a
to
)le;
kter
^ed
this
Inst
4. Q. — Can a deposition made before trial ever, and
when, be received in evidence upon the trial of an
indictment ?
A. — If at the time of the trial a person, who has
made a deposition before the trial, is dead, or so ill as
to be unable to travel, or is kept out of the way by
the prisoner, or (perhaps) is too mad to testify, the
deposition made by him before trial, may be re-
ceived in evidence upon the trial, provided that
the deposition was made on oath, before a magistrate,
in the presence of the prisoner, and that the prisoner
had a full opportunity of cross-examining the witness.
Hams, 461.
5. Q. — What provocation will reduce homicide,
which would otherwise be murder, to manslaughter ?
A. — The provocation must be gi'eat and the cause
of death must be inflicted at once while the provo-
cation is still exercising its full influence. Where the
instrument causing death is a deadly weapon, the
provocation must be of the gravest nature to render
the offender guilty of manslaughter only ; but a
slighter provocation will suffice if the instrument used
is one not likely to cause death, as a stick or a blow
with the fist ; in fact, the mode of resentment must
bear a reasonable proportion to the provocation to
t
86
EXAMINATION QUESTIONS AND ANSWERS
h i
reduce the offence to manslaughter. If the retaliation
be not immediate, and clearly traceable to the influ-
ence of the provocation, the offence will be murder.
Harns, 179; Broom, G,L., 902, 903.
6. Q. — Define malice aforethought as applicable to
the crime of murder.
A. — Malice aforethoxight as applicable to the crime
of mui'der is not to be understood in the ordinary
sense of ill-will or hatred towards an individual ; in
fa«t, to constitute murder it is not necessary that the
prisoner should have had any enmity towards the
deceased, nor would proof of the absence of ill-will
furnish the accused with any defence, provided that
the charge against him were established in other re-
spects. In the legal sense, malice aforethought as
applicable to murder may be said to mean a guilty
state of iiiinu, consisting in either (1) an intention to
cause death, or (2) an intention to do a bodily injury
such as is likely or sufficient in the ordinary course
of nature to cause death, or (3) wanton indifference to
life in the performance of an act likely to cause death »
whether lawful or not ; or, as it would seem (4) an
intention to commit any felony. It is said to be either
express or implied, according to the circumstances
under which the death was caused.
Harris, 175, 177.
ON CRIMINAL LAW.
87
PAPER XXL
1. Q. — State the cases in which a married person
who marries during the life of the former husband oi*
wife, is not punishable for bigamy.
A. — (i.) Where the second marriage was contracted
elsewhere than in Canada, by any other than a sub-
ject of Her Majesty resident in Canada.
(ii.) — Where at the time when the person marries
again the former husband or wife shall have been
continually absent for the space of seven years im-
mediately preceding the second marriage, and shall
not have been known by such person to be living
within that time.
(iii.) Where the first marriage has been declared
void by the sentence of any court of competent juris-
diction.
(iv.) Where there is a second marriage by one who,
at the time of such second marriage was dicorced
from the bond of the first marriage.
Harris, 139 : R. S. C, c. 16, s. 4.
i t
'A
88
EXAMINATION QUESTIONS AND ANSWERS
2. Q. — Two or more persons combine to do an un-
lawful act, and one of them kills a man; of what
crime are they ^-ilty ?
A. — Of murder, if the act which the persons com-
bine to commit is a felony ; otherwise it will be man-
slaughter, assuming that there has been no direct
intention to cause death.
3. Q. — What is the crime committed by a person
sending a ship to sea in an unseaworthy state likely
to endanger life, and by what can he exempt himself
from it ?
A. — The party is guilty of a misdemeanour, unless
he can prove that he used all reasonable means to
make and keep the ship seaworthy, and was ignorant
of such unseaworthiness, or that the sending the ship
to sea in an unseaworthy state was, under the cir-
cumstances, reasonable and justifiable.
Harris, 154.
4. Q. — What is the distinction between principals
and accessories, and how is each class usually divided ?
A. — A principal in an offence is either the actual
perpetrator of the crime, in which case he is called a
principal in the first degree ; or one present, aiding
r£BS
) do an un-
i; of what
arsons com-
ill be man-
I no direct
y a person
tate likely
pt himself
our, unless
I means to
is ignorant
[g the ship
ir the cir-
ON CRIMINAL LAW.
89
principals
r divided ?
he actual
called a
nt, aiding
and abetting, in which case he is called a principal in
the second degree. An accessory is he who is not the
chief actor in the offence, nor present at its perform-
ance, but is some way concerned therein, either before
or after the act committed. An accessory before the
fact is one who, being absent at the time of the com-
mittal of the crime, yet counsels, procures, or com-
mands another to commit the crime. An accessory
after the fact is one who, knowing a felony to have
been committed, receives, relieves, comforts or assists
the felon.
Harris, 34, et seq; Q. 3, Paper XVIII.
5. Q. — What is the offence of blasphemy ?
A. — The offence of blasphemy may be committed
by denying the being or providence of the Almighty,
or by contumelious reproaches of our Lord and
Saviour Christ ; also, all profane scoffing at the Holy
Scriptures, or exposing it to contempt and ridicule.
Harris, 74.
6. Q.— Give a general description of the offence of
bribery and of the elections in which it principally
prevails.
A. — Bribery is the corrupt treatment of one
intrusted with a public charge, to influence him in
the discharge of his duty in that character.
90
EXAMINATION QUESTIONS AND ANSWpRS
The offence comprises acts which may be divided
into two classes : —
1. Where some person concerned in the adminis-
tration of public justice is approached by one bringing
him a reward, in order to influence his conduct in his
office.
2. Where some person having it in his power to
procure, or aid in procuring, for another a public
place or appointment, is so approached.
This latter class may be divided into cases.
(1) when the place or appointment is in the gift of
some public officer ; and (2) when it is determined by
public election.
Harris, 89.
Bribery principally prevails in parliamentary and
munic'qml elections.
HarriSy 91 and 96.
ON CRIMINAL LAW.
91
PAPER XXII.
1. Q.— Is it lawful to compound a misdemeanour,
and under what circumstance is it occasionally done
after conviction ?
A.— To compound a misdemeanour seems to be
strictly illegal, as impeding the course of public
justice. But when a person has been convicted of a
misdemeanour more immediately affecting an indivi-
dual (such as one for which he might sue and recover
in a civil action), as a battery, imprisonment, or the
like, the Court not uncommonly allows the defendant
to speak ivith the prosecutor before any judgment is
pronounced ; and if the prosecutor declares himself
satisfied, inflicts but a trivial punishment.
Harris, 101.
2. Q.—Are dying declarations admissible in evi-
dence in any, and, if in any, in what cases ?
A.— The declarations of a person, who is dying in
consequence of injuries received from another, may
be made orally or in writing to a justice of the peace
or some competent person, and may, after the death
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EXAMINATION QUESTIONS AND ANSWERS
of the dyinof person, be proved by the person who
heard the expressions used, but under the following
conditions :
(i.) The cause of the death of the declarant must
be the subject of the enquiry ;
(ii.) The circumstances of the death must be the
subject of the declaration ; >
(iii.) The declaration must appear to have been made
at a time wher the deceased was perfectly aware of
hiF danger and entertained no hope of recovery ;
(iv.) It must have been made in reference to matters
as to which the deceased, if he had l^ed, would be
a competent witness.
Harns, 461, 468 ; Q. 6, Paper, XVII.
3. Q. — If A. be charged with feloniously forging
and uttering ten cheques on the same bank for differ-
ent amounts in the same name, how many indictments
is it necessary to prefer in order to give evidence of
all the forgeries, and give the reason?
(Cf. Q. 6, Paper X.)
A. — If the offence charged constitute one transac-
tion, as if the charge be that A. uttered all the ten
cheques at the same moment, there will be no objec-
tion to including all the charges in one indictment ;
ON CRIMINAL LAW.
98
a who
owing
; must
be the
a made
rare of
r\
natters
►uld be
orging
differ-
)ments
>nce of
Ihe ten
objec-
Iment ;
but if the forgeries or utterings be distinct, then it
will be desirable to prefer different indictments, ap-
plicable severally to each. If an attempt were made
to include two or more forgeries in the same indict-
ment, the judge would, on the application of the
defendant before plea, quash the indictment ; cr if
the objection were made after plea, would call upon
prosecutor to elect upon which count he would pro-
ceed. The objection to charging distinct felonies in
the same indictment is that it would embarrass the
prisoner in his defence.
Harrit, 366.
It might also prejudice him in his challenge of the
jury ; for he might object to a juryman's trying one
of the offences though he might not object to his
trying another.
4. Q. — If A. be indicted for obtaining goods by
means of false pretences, and the evidence in support
thereof establishes the false pretences, but fails to
establish that A. obtained the goods, can A. be con-
victed of any offence ? and, if so, what ?
A. — Yes ; he may be convicted of an attempt to
obtain the goods by false pretences, provided that the
evidence shews he was guilty of the attempt.
Harris, 473.
»T
94
EXAMINATION QUESTIONS AND ANSWERS
5. Q. — What is the least amount of evidence re-
quired to sustain an indictment for perjury ?
A. — Two witnesses. It will suffice if the perjury
be directly proved by one witness, and that corrobor-
ative evidence in some particular point be given by
another. Moreover, when the alleged perjury con-
sists in the defendant having contradicted what he
himself swore on a former occasion, the testimony of
a single witness in support of the defendant's own
original statement will support a conviction.
Harris, 8G.
6. Q. — Is a wife an admissible witness against her
husband in any, and, if any, what criminal cases ?
A. — She is an admissible witness against her hus-
band on—
1. A charge of high treason ;
2. A charge of violence to the person of his wife.
Harris, 432.
ON CRIMINAL LAW.
96
has-
PAPER XXIII.
1. Q. — Give an example of justifiable homicide and
one of excusable homicide.
A. — Where the proper officer executes a criminal in
strict conformity with his legal sentence, the homicide
is justifiable. It is also justifiable when an officer of
justice, or other person acting in his aid, in the legal
xercise of a particular duty kills one who resists or
prevents him from executing it ; or when it is com-
mitted in the prevention of a forcible and atrocious
crime.
When a man kills another, upon sudden affray, in
his own defence, or in defence of his wife, child,
parent, or servant, and not from any vindictive feel-
ing, it is excusable. It is also excusable when a man
is at work with a hatchet, and the head files ofi'by acci-
dent, and kills a bystander.
Harris, 163-169; (Q. 1, Paper I; Q. 4, Paper XVI.)
2. Q. — What is the gist of the crime of conspiracif ?
Answer in one word.
A. — Combination.
Harris, 134 ; (Q. 1, Paper IX.)
96 ISXAMINATION QUESTIONS AND ANSWERS
3. Q. — What verdicts are there, any one of which
may be rendered on a trial for murder ?
A. — Murder, manslaughter, and attempt to murder.
Harris, 473-474.
4. Q. — If a pickpocket should insert his hand in a
person's empty pocket with intent to steal the purse
which he supposed to be in it, could- he be convicted
of any, and if so, of what crime ?
A. — Yes; he is guilty of a common law misde-
meanour. But he cannot be convicted of larceny,
because there was nothing in the pocket which could
be carried away; nor can he be convicted of an
attempt to steal, because, even if no interruption had
occurred, the design would not have been carried out
successfully. -
Harris, 233.
5. Q. — Distinguish burglary and Jtoiise-hreaking,
A. — (See Q. 7, Paper II., and answer thereto.)
6. Q. — What difference is there between larceny and
robbery in regard to the removal of the goods ?
A. — In larceny there must be some severance of the
property, but it is not necessary that the accused
should succeed in carrying it away.
Harris, 233.
; which
murder.
nd in a
le purse
mvicted
ON CttlMINAL LAW.
97
In rohhery there must be something more, namely
a compute removal from the person of the party
robbed. Removal from the place where it is if it
remains throughout with the person, is not sufficient.
Harris, 241.
' misde-
larceny,
th could
d of an
bion had
ried out
king,
)
ceny and
?
ce of the
t accused
EXAMINATION QUESTIONS AND ANSWERS
;i '
PAPER XXIV.
1. Q. — What is the distinction between an arrest
by a private pertoti on Hew, and an arrest by a private
person on iuipieion, as regards the breaking open
doors, and as regards the legal consequences of such
person killing, or being killed, in making the arrest ?
A. — ^The distinction is that in the former case he
may break open doors to effect the arrest ; and the
consequences of his killing or being killed are gener*
ally the same as if an officer were arresting. i.e., the
killing would be justifiable on the part of the private
person, if the criminal was resisting his arrest or
attempt to arrest; and murder or manslaughter on
the part of the criminal.
In the latter case, the private person is not justified
in breaking open doors ; and if either party kills the
other, it is said to amount to manslaughter at the
least.
Harris, 348.
2. Q. — On a trial for obtaining goods hy false pre-
tences, is evidence admissible to prove that the
prisoner has previously, and subsequently, to the trans*
ON CRIMINAL LAW.
99
I arrest
private
g open
)£ such
arrest ?
case he
and the
s gener-
i.e., the
private
rrest or
hter on
justified
alls the
at the
te pre-
lat the
trans-
tiiction in question, obtained other property from some
other person by the same pretence. If so, for what
purpose ?
A. — Evidence th>\t the prisoner has on a prior
occasion obtained property from some other person,
by means of a similar false pretence, is admissible to
support the evidence of intent to defraud ; but that
evidence of a similar false pretence on a subsequent
occasion is not admissible.
Harris, 265.
8. Q. — Give an example shewing how a person may
be guilty of larceny, although the goods were
voluntarily delivered to him by the owner. ?
A. — Where the delivery does not alter the possession
in law: in other words, where, although there is a
delivery of the goods by the owner, yet the possession
in law remains in him, the goods may thus be stolen
by the person to whom they are thus delivered.
E.g. — The butler who has merely the care and
oversight of the plate of his master, appropriates
it. He is guilty of larceny.
Harris, 229.
4. Q. — In what cases is the Court bound to grant a
reprieve to a prisoner ?
iii
ii'
100 EXAMINATION QUESTIONS AND ANSWERS
A. — In two cases. When a woman sentenced to
death is ascertained to be pre^ant; and when the
prisoner becomes insane after judgment.
Harris, 603.
5. Q — What is the general rule as to the compet-
ency of the wife of one of two prisoners Joinfty indict-
ed and tried, as a witness for or against the other
prisoner ?
A. The wife is incompetent as a witness for or
against the other prisoner.
Harris, 432.
6. Q. Explain the meaning of constructive hrealing
in burglary, and give an example.
A. — (See answers to Q. 2, Paper VI.; Q. 3, Paper
VIII; and Q. 2, Paper IX.)
7. Q. — Under what circumstances will a person be
guilty of larceny of goods which he has found ?
A.— (See answers to Q. 6, Paper XI, and Q. 5, Paper
XVI.)
iiii
li I
,■'*,.. ■<
ntenced to
when the
le compet-
itly indict-
the other
ess tor or
e breaHng
3, Paper
I ■-,.
'■4*
person be
if
(. 5, Paper
i J
\