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'»■ 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 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) 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 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 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I iai2.8 25 2.2 i: U£ 2.0 IL25 i 1.4 III ■ 1.6 Sciences CorporatiGn m: %^ < (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 \