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The following diagrams illustrate the method: Les cartes ou les planches trop grandes pour 6tre reproduites en un seul cliche sont film^es A partir de Tangle sup^rieure gauche, de gauche d droite et de haut en bas, en prenant le nombre d'images nicessaire. Le diagramme suivant illustre la m6thode : 1 2 3 4 5 6 DIGEST Of r?:ported cases touching The Criminal Law of Canada ; wriH REFERENCES TO THE STATUTES AND AN INDEX BY THOMAS P. FORAN, M.A., B.C.L., {Compiler of Foran'ii Code of Civil Procedure.) TORONTiJ : CARSWELL & CO.. LAW PUBLISHERS, 1 889. Entered according to Act of the Parliament of Cat.ada. in tlio year one tliouKand oiKlit liuiiilrod and ei(,'lity-nine. l)y Causwkll & Co., in tlie office of tlm Minister of ARriculture. W 1>1 (li at ei] PRINTED BT Thos. Moohk a Co., Law PniNTKBa 90 Adklaidk St. East, TOHONTO. P R E r^ A C E . It has been the compiler's aim l;o make of this book a work of ready reference for those who are called upon to ])reside at or practice in our Courts of Criminal Juris- diction ; and it is hoped that the arrangement he has adopted, the Tables at the besinninj,', and the Index at the end of these pages will be found suitable to the accora- plishment of that object. Aylmer, P. Q., April, 1889. ■li T E T .;^- TABLE OF CONTENTS. TAIiLE OP ABBREVIATIONS EUKATA TABLE OF CASES " STATUTES I. CRIMINAL INFORMATION II. INTRODUCTORY HI. PERSONS CAPABLE OF COMMITTING CRIMES IV. OFFENCES : 1. Abduction 2. Abortion 3. Arson 4. AsHault 5. " Indecent (). Attempt 7. Hankiiif,' Act H. Hettinj,' !(. Bi}»ainy 10. Bribery 1 1 . Burf,'lary 12. Coininj< IH. Concealing birth 14. ('onspiracy 15. Embezzlement ; frauds by agents, etc 1C\ Embracery 17. Enlistment, foreign 18. Exposure, indecent v.). E.xtortion 20. False pretences 21. Forcible entry 22. Forgery 23. Frauds 24. Gaming 2,'). Kidnapping 2(>. Larceny 27. Libel 28. Murder 2a. Mutiny " _ " vii viii ix XV 1 3 5 8 9 12 18 19 21 22 22 25 28 28 29 29 31 37 38 40 41 41 52 56 73 74 75 77 89 90 96 fk ^m M vi TAHIiK OF CONTKNTH. 80. HI. 32. 84. af). aC). a?. 88. an. 40 41. 12. 4a. 41. INDK JURY Neutrality lawH \)i\ Nuisancu 517 r't'ijiiry {|ij I'erHoimtioii ^ih Property, iiijuricH to ion Hiipe 10!) llfHcue 112 Uiot iia Smii««liiin in RtollionatiiH \n Tliruats jj j Vaj,'rancy n.-, War, levyiii;,' (.jo Wifo, iit!j,'luctiun ti) Huppoit i'j:i Woiimlint,' [•j,-, rr.MIONT ' ' i.',7 la.^ V. VI. VII. TRIAL 14, VIII. EVIDENCK I -,,i IX. RIGHT TO BKGIN 17,, X. CHAIUtH OF .lUDGK I7I XI. VERDICIT 17, XII. ALLOriUTUS 17. XIII. BENTENCE ' ' 17;", XIV. EXECUTION ." . 17;, XV. APPEAL ' 171 XVI. NHW TRIAL [,[[ 17.-. XVII. ClORTIOUAPvI jHi XVIII. ERROR iH-i XIX. RESERVED CASE IH^ XX. CONVICTIONS ' ih,; XXI. COMMITMENT 200 XXII. BAIL ' . * 201 XXIII. HARLAS CORPUS ' . . ' 20', XXIV. EXTRADITION 217 INDEX 24--. « ."S A «*.' TABLE OF AnBK'l':VIA'riONS. App. R Ajjpoal Hi'portH. Ontario. ^'- '* ll|i|>cr Cniiiiilii ('..iiimmi I'loiis Rfi»ort8. J'^- '1' Kaslur IVnii, Oiitiiiio. H. T Hiliirv " K. H Kill's HiMich ^'•C »l . I„i\vor ('aiiiidii .TiiriHt. I^- ^'- !'••' '■ '• I.aw Journal. ''•<'•>< " " Reports ^'- •' Upper t'anada liiiw Jdiirnal. old ncr'wn. L-'l-. N. S „„^y .. L- N Lcj^al NewH. ^^- f'- R Montreal I^aw Reports. ' N. S. Heii Nova Scotiii Kciiorts. (). R.. Out. Rop. . . .Ontario li('|)orts. ^•^ lIj)piM- (lanada (,)iiepnH Heiich Reports, old HerieH. !*• ^' Privy Clonncil P- R Practice Hoports. ( )ntario, ^- '* yuei-n's IJencli; or, wiien preceded by a nunilier, Upper Canada Qneen'a Bench Reports, new series. Q- ^^- R Dorion's Queen's Jk'uch Reports. Q Ij- R Quebec Law Reports Ramsay, A.C Ramsay's .Vppcal Cases. R- -^ Revised Statutes of ( lanada. Rob. & Jos. Dif,' Robertson A- Josepli's Digest, Ontario. ^- ^- R Supremo Court ot Canada Reports. '^'••■y Taylor's (Ip|)er Canada Reports. U. 0. R Upper Canada Reports. E R K A T A . 1't.je I, last lino, add : '• O'Farrell, exp., I'A Q. L. U.; 10 L. N. a«7.' 4, last lino, add : " 1.". Ont. Hep. HiW." HH, lOtli lino, for " Ciimrllii-r" road " Cornellifr.'" .W, Stli lino from bottom, dole " f/wt." IIH, 18th lino, add : " 12 P. U. 111." 110, yth lino from bottom for " Q. H." road "Q. 13." iriT, fith lino for " I'J'i " road " 222." I(i4, 13th line from bottom read " 10 Ont. Hep." TABLE OF CASES. ThK RkKKUKM Krt AlIK TO TIIK MaIIiUNAI. NtTMnKKM. Abrahamn, 341, 3«M) Amer, M Aiult'rHon. lO.J r*-. 'iMi.»}34. 608, (570 Andrews, 4'2'2 ArinHtron({, 101 Arscott. 30a AHlier, ')«»;'>, .'>«»(» AHAoiikuliHHon, •'>47, 577 AtkiiiHon, •AiWt, '280 Attorney-General v. liuauliou, Mi'i B nabv.3'»l, 401 Hail", 104 Hain. -277. 270, 485. .MO Haker. cr parti-, .'iOl Kanuunnan, l.'>7 HaHsett, m> bayley v. (urtiH. 544 Mathgate. 2U0, ;W5 lieckwith, 418, 400 Beebe, in re, 8.5,071 . Henjaniin, H55, ;J7'2 Bennett, 302 Bent. 105, 451 Heriau, 428 Bernarl, 524 Berthe. 285 Berth iaume, 107 Hirtii'H. i:»2-3 HiHHull. 322 BiHHonnettc. .130 HliiekHtone, 153 lUcau, 285 HlimHoni, 507-8, 008 Hnanhnan, 5 JJonttT, 35, 433, 007 Boucher, 108, 401. .508 re, 8. 30-7 Bourdon, 3H3 Houtet, 237 RriulHhaw, 2Ht Mradv, 130, 138 Brierlv, 7t» Brifjht, 520, 575 in re, 112 Broad, 253 Browne, 025, 047 Urown, 232 Mruce, 245-0, 481 llryans, 20 Hrvd^es, 230, .500 Hu'Uock, 103 Huhner, 325, 402 lUmtiiiK, 7. 80 Burlev, in re, 241, 048, 0.52-3-4, 066, 004, 072-3 Burns, 527-8 Bush, 10 Bush, e.r parte, 540 Uvrnes, 504-5 l,i,J: TAUIiK OK CAHKH. 1> CaiHtcr, ;.r,(;, ri7i Caldwiili, (;;{-,.(;, r,r,7, v,v,h rHliii;,'ii(iii, '2H\ Ciimphcll, HI (Jarlnay, 12!) (!ar|u;Mt(!r, cr /unit!, ,W,) ('hit, L'.iit (;ais()ii, 174, 'SM't (UivUv, r.nw (^aHWfll, 2()'.», 'JL'O, nfii Clayotte, 472 Cliiuld V. .M(a^;licr, iir»2 Cliaiiiaillanl, ;{K'2, 4H'J ( li<<'VcrK. ri;"))) Clioiiiiianl. U7 Cliiibim, 4',)H-!) Clmtc;, 5!) (Mark, ;{()H Clarkf. ill re. 11011 CleiiKMit. (»;<, 2')7, ;t'.t2 Cok.'ly, I 14 ('ollct,'t!<)f IMiywiciaiiK, J'Jl ColiiiiH, r)7H ( Oiiiiolly, (M, '2H7-H.9 f'oiiiior, l,};"), l.",0-l, .■{")() Coiiroy V. McKoimoy, r-7 Cronin, .i], M Croteau, r>84 Crow, in re, 'I'M Crozier, 411'.) Cullahan v. Vincent, 21 Cununint,'H, 102^;^;}(i Cuniiinfihani, l(t7, (iHl Currie, 2.'3(!4jardjns (lanal Co.. ;i.VJ. 177 DcHpatie, /',/■ jiiuif, ;i07 Dillon. OS DiMf.!inan, 42 Dodds, IHH Donelly, /;/ re, nfjij Dorion, I'.l.l Dontjall, 221"), :!4H, :{H;t, In;), "jO? Downey, ■'{Ki Downic, 202 Driscoli, I'M DnCI. (•.',» DlifriHne, e.r jiarle, .'>:i'2 Duj^al, 2:j;{ DiiinaiH v. Hall, 2H;{ Dnnio)), 17H,24;) 4. ">14 Duroelier, 142, 4")0 J)wyer, 74 E KaHtman v. Heid. ',\H J'lant NiHHonri v. llorsnuui, Hj. ;);{, 100 lOirod, 47(i Minond, e.r parte, 001 i'lno, e.r piirle, 021, (JOO, ()77-8 l']sniond(!, 02 Kwinj.!. 127, 214 Falkner, 301 Farley, :{!)0 Fa lire, 28") Fawcett v. 'I'lionipHon, 1',I7 Fearrnan, I'.IO FelloweH, H\), 370, 41'J, 488. 4'JO TAHLK OF OAHKH. ki Feore, H84, 51(5 Fi'imiHoii V. AdaiiiH, rM) KtfiriK V. irwiii, ',!'.• Fic.U, -iUO, ir.7H. I«»2, t'JH l<'it;l.l. 4'2C, Kiiikitr, Jit;. i2;M-r), rAW Fitztjerald, J'.IK, r,H7 Kliiit, :{()'.» l''oiitaims 72 Foot V. Bullock, H2 l-'onl, .-ill KorrcBter v. (Hark, ">() Fourniov, '20") Fraiu'JH, '2H() Franklin, i.r iinrli', (ilH Krasor, .'MO, :i7:{ Kniitliculicinuir, ll'J, iJ'.CJ I''i'(/Oiua'i, ."lOl (iil)K (iilliH, KW (Ilass, '.If,, 51'.) (JoCf, 01 (loodino, fx parte, 551 (joodnian. Hii, (')r2 Gordon, '^',0 (Jout^h, ;!'2'.) Could, 1m:{, Oil) (iray,r,0'2 (Irahain v. IMcArtlnir, i'l'M (Jrain^ir, 54'.) (Iraiid Trunk Kaihvay ('o., 487 (ii'cavoH, 445, 450 (Jr(«-n. 474,505 (Irconwood, .'{O, :f2, 4'.»:{ (iii^'v, 1,'2, :i Ciiiinard v. Marsaii, "21 H Haf^ernian, 441 IlaincH, '217 Hall, (/( r,', 10'2 llaiubly, 4a7, 4H'.) HaiMilton, 45H.«), 404, 498, .^OO llarley. 404 Marnier, 4H liatliaway, 101 IlrOcrt, 5;{0 licnncHHV, •2'21, 500 U(nr(y,"47:{ Henry v LittU), :450 llcro.l, '2:54, 45'2 llickson, '2"20 Jii)4)jinH. 5;i'2 liinrkH, 00-7, 4H4 liodi^e. r>H'i llo^an, ;{7'2 Ilo^'t,', 2H2 IloH(4ard, 50:J lloj^nc, i-x iitirtf, 5Hil Ilokc, 040 Iiold'>, 001» Jonea, 40;{, 4i:{, 4i;;{, 5H0, t'.r iiiirtc, 5()7, 007 .Jiidah, 14:t .Julian V. Kint^, 55 K Kavlor, 'I'.i Kceler, 5110 Kelly, 107. '21)0, 4W> Kennedy, :tOH 002 '] xu TABLE OF CASES. Kennedy v. Berry man, 1,3 Kermott, in re, (151, 07". Kerr, 242, 326, 30y, 378 King V. Orr, GOG liJibadie, 28 liiickie, 185 l-ivconibe, ;}74-5 Lalanne, 518 Laliberte, 292..4 Tranchant, HOI Tremhlav. 38!) Trudel, 278 Trepanier, Oil Tri^jangie, 453 Tubbee, 77, 022-3-4, 000 Tnflford, 414 Tweedy, 105 w Waddell. 044-5 Walker, 330, 570 Walter, 110 Warner, 218 ill re. 182, 032, 0(54, 07O Webster, 00, 2!»4 Whelan, 18, 307, 381,510-11 Wifjhtman, 152 Williams, 531, 559, 020 ex parte, 017 Wilson, 012 Wmninf^ v. Fraser, 340 Wood worth, 228 Worms, ex parte, G3<,)-40 Wyllie, 385, 415 Yeomans, 557 Re' Young, 525 Zink, €X parte, 042 TABLE OP^ STATUTES. TiiK Rkkkukncks auk to thk Maroinal Ncmiikrh. . Stat. Ca.. c. 43, 8. 2(5 ; 204 27 ; 204 •' 28 ; 204 55 ; 190 '.»5 , 551 108 ; 479,551 c. 120, s. 81 ; m c. 142, 85, 1C7, 022-681 c. 144, 4 c. 145, 8. 7 ; 135 8 , 03 c. 14(5,8. ; 314-5, 317 7 310 c. 147, 290-7 c. 154, 8. 1 251, 257 2 , 251, 257 c. 155, 295 c. 157,8. 3 ; 287 8 115-0, 303-4-5-6-7, 311 c. 159,8. 2 187 3 187 9 ()8 c. 101,8. 4 09 to 7(), 79 c. 102,8. 2; 233 5; 233 8; 324-5-0, 3.30 13- 30, 47 14 30 19 318-9, .322-3 34 41. 53 3(1 39, 48-9, 50 XVI TABLE OF STATUTES. Rev. Stat. Ca.c. 162,B. 37 ; 286 (< 38 285) It 41 59, 291 it 42 23 it 44; 22. 25 It 4G; 188 It 47; 26 ti 145); 87 II c. 163, 8. 3 ; 224-5 II 4 ; 224-5-6 II c. 1(14, 8. 2 ; 104, 136, 138, 198 11 4; 98-9, 100-1, 107. 15)9, 215, 221 >i r> ; 201 •1 12. i;{ ; 15)8 11 ir. ; 5) II 18. ill ; 210 11 22 ; 209, 220 II ■ 50 ; 190 It ST; 191 II 5K ; 195, 196 11 »<) ; 5)6, 101-2. 104 II 60; 107 II 61 ; 98 II 62 ; 5)7 II (i;"i ; 100, 105-6 14 66; 100 li 77 ; 118, 120, 134, 139 11 78; 123, 125, 130-1-2, 141-2-3 II 82 ; 1S»3, 205 II 8;". ; 214, 217-8 ti 88; 221 II •J4 ; 300 II C. 165, 8. 3 ; 153, 181 II 13 ; 164 11 18 : 175 II 22 ; 1.55 II 28; 158, 166, 176, 177-8 11 29; KiO, 172-3-4 II 30; 168-9 II 46 ; 154, 175 II c. 167,8. 12 ; 86 II c. 168, 8. 12 ; 285 11 27; 284 II 59; 15, 16, 17, 19, 20, 283 A . i * TABLE OF STATUTES XVll ev. Stat. Ctt. , c. ir>8,B. (io 284 t. c. 173, 8. 1 ; 222-3, 301-2 it 2G- 88-93, 185 " 28 184 t* :50; 108 it c. 174, B. 2 c ;i89 .1 8; 200 i( 10; 11!) ii l«; ■2rA, 259 »t 22; 221 It 24 ; 56 tt 81; 582 it . 102; 398 (< 112; 120, 129 (t 114; 10 1, 174 (1 lli;; •JO- 1-2 tt H7; 212 it 121 ; 103 it 12(1 ; ■.)5 (1 12H ; 210, 27(;, 336 ii 12!» ; 189, 194 it i:{9; 453 it 110; 212, 343-4, 40>i ti 143 ; ;i4, 3;{;j-4-5, 338, 357, 363-4 it 141; :;47-8 ti 14S; 224-5-6 it ICO ; 305-0 tt 101 ; 372-3-4-5-6 it ir.r, ; 377 ii 1()() ; .■;70 ti KJ'J ; ;i8() it 171) ; 105-0 It 18;{ ; 57, 00-1-2 it 18;1 ; 294 ti 11)1 ; 10, 42-3-4, 40, 64, 330 it l'»2 ; 40 tt 1!):{ ; 200, 470 it I'M ; 127, 133 II 1U!» ; 200-7 it 2i:^ ; 464 it 214; 434, 430-7 •i 210; 322, 431-2-3 Ii 217; 77, 430-1 ii 218 ; 157, 179, 439, 441-2 ti xviu TABLE OP 8TATUTKB. Rev. Stat. Ca. ,c.l74, B. 220 ; 443, 445-(;, 4G0 tt 222 ; 427-8-9 it 234 • 457 •• 235 ; 4()1 tt 215 ; 337 »• 25!) ; 377, 516 It 2(55 ; 507 It 2()G ; 377 «i 2G7; 484 It 208 480 It 391 ■ II schedules 122, 124, 140, 178, 193, 211, 239, 253, 277 87 " c 175, SB 5, 13 It C.176 ,8. 3; 309, 312 •i 7 ; 217 11 22, 24- ;513, 579 II C.178 ,B. 11 530 It 33 523 It 39 474 It 53 541 i< ()2 ; 580 It 73 37, 15, 51, 52 It 74. 75 ; 21, 54, 56 11 77 , 478 II 79 ; 523 CRIMINAL DIGEST. i' CRIMINAL DIGKST. I. -CRIMINAL INFORMATION. 1. -Til.- applicant in person moved lor u criminnl infor- nialion ai^ainst one J. H. W. fo,- a,, alleged libel, and liis ai)i)li('ntion was rejected in eonse^pience of his having omitted to file the lilud complained of with his motion, and ullidavits in support thereof. The present application was a renewal of the former one, and precisely the same in every particular, exceptinjj that the omission to file the lihel complained of was supplied. Cauox, J., after consultin;,' with his hrotlier jud^'es. Ildd, that the criminal information obtained in Lower Canada, and that the duties a)id powers of the clerk of the crown in such cases were analasous to those of the master of the crown oflice in Knshuid. Giuiy, ex piirte, 8 L. C. li. 85;} ; L. C. II. HI, q"ji 12.— But held, that a rule for such information, once discharged for irregularities, could not he renewed i)y amendment, and also that the applicant could not move for the rule in person. Ihi,i. y.— And //.■/al and of local imi)ortance, and hv that statute the \) (leo. I. c. 1!) and (J (leo. II. c. H'), which impose cirtain penalties on i)ersoiis stdlinjj; ti(dvets in a forei^rn lottery, have been nnide to form part of the eriniinal hiw of Lower Cainida. UnioDic, t'.v j>;irf<\ S. H. . 21 ; K. h. lS-25, 11. S. c. 111. ij 'rill! Iji'gislaturi! of Ontario haviu)^' passed an Act to rej^ulate shop and tavern licenses, iVl-',\'.\ \ ict. c. ;{2, under the power ^'iven to it by the H. \. A. Act. s. !)'2, ss. 1), 1(», llchl, that they had power under sul)-secti()n 1.") to enact that any person who, havinj; violated any of the provisions of the Act, should compronjise the otVence. and any person who should be a party to such com promise, should on conviction be imprisoned in the common gaol for three months ; and that such enact- ment was not opposed to section 1)1, sub-section 27, by which the criminal law is assigned exclusively to tne Dominion [)arlianient. licn'uui v. liodnhnun, 80 (). li. 553. (). — On a trial for bigamy, Ilehl, that American authorities could not be ([uoted. lii-gina v. Creamer, 10 L. C. R. 404, Q. B. 18G0. ISTIlolMCrnUY, !) 7. -An iijtlictinciit \v;m round aj^aiiist tlie defi'iidants in tin; Hi^li Court of JiiHticic iit its Hittiii}^H of Over mid 'r"I di'livcrv and on Ixin^' called upon to jdcad, tlic (k'l'indants dcniuiTcd to tlu- indictment, A writ of crvtianiri was sultscMiuentlv obtained Itv tiic defiiidants, it) obedience to which the indictment, (h- nnn'ier and joinchu' were removed to the (Queen's Hencli Division. Upon the return, the court took out u side- har for a cmnihum, and the demurrer was net down for arifumtMit. A motion Wjis matlf hv the defendants to set asi(h' the proceedinj^s of tht; crown, on tlie ;^r(Mind that they shouhl have heeii called upon to ap- pear and plead . 158 ; U. S. c. 1()H, s. 5<). 17. — The jurisdiction of the justices to hear the case suramaril}', is ousted when a bonajidc claim of title is set u}), and they must hold their hands. Reii'ma v. inirien, 5 Q. L. W. lOl, 1870; 15. S. c. 1()8, s. 5i). IK. — Where the defendant had been convicted, under 3'2-88 ^'^ict. c. 22, s. GO, of trespass to land, and it ap[)eared on the evidence before the magistrate, set out below, that there was a dispute between the parties as to the ownership, IleJd, that it was a case in which the title to lar.d came in question, and that the defendants had been improperly convicted, even though the magistrate did not believe that the defendants hr'd a title, it not being within his province to decide on the title, but merely on the good faith of the parties alleging it. llcijuui v. Ihiviihon, rt ; 1 Q. B. li. 804 ; 2() L. C. J. 36 ; 1{. S. c. lt)2, s. 42. 24. — It is not necessary for the crown to prove that the prisoner knew of the interest of the female in the property, fhid. 25.— On a trial for taking an unmarried girl aged less than sixteen years out of the possession of her guar- dian, evidence of cruel treatment of the girl by the guardian is inadmissible. Interference of a witness on the way to court to give evidence in order to prevent her testimony from being given, is a contempt of court. 0FFKNCE8. <> Secoiuliiry evuk-nce of the ago of tlio child abducted may he permitted to go to the jury. Wliere a child was taken from motives of benevo- lence, from a baAi wherein she had sought refuge, the barn not being on the jiroperty or i)remises of the guardian, and was then placed by the persons who had come to her relief in the charge of defendant as secretary of a society for the protection of women and children, the secretary could not be found guilty of taking out of the possession of the guardian. /iV^/n, rf V. //o///.s', 8 L. N. 2'2!> : U. S. o. 1()2. s. 44. 'i. .4l»4»i'tioii - '!('>. — The prisoner, with intent to [)rocure abortion, sup- plied a pregnant woman with two bottlesful of Sii .lames Clarke's Female Pills, with directions to take twentv-live at a dose, and said that it would have tliat effect. The pills contained oil of savin, an article used to procure abortion, and it was said that a bottleful would contain about four grains, but the evidence was not very clear as to this. It was in evidence that such a quantity would be greatly irritating to a pregnant woman, and might possibly procure an abortion, and that oil of savin in any dose would be most dangerous to give to a woman in that condition, fJt'hl, under the circumstances, that there was a supplying of a noxious thing within the meaning of the Act, with the intent to procure an abortion. Re shewn on the trial. liciiiiin v. Cronin, ;}(> (}. B. 842. if. T., 1875. f «. 1 82. -The i)ris()ner being indicted for unlawfully and nuili- ciously attempting to burn his own house by setting lire to a bed in it. it ai)peared in evidence that the dead body of a woman was in the bed at the tim(! : tliat her death had been caused by violence : that she had been recently delivered of a child, wliose body had been found in the kitchen : and that she had lived in th(\ house since it had been rented by the prisoner, who frequently went there at night. It was also shewn that the prisoner had been indicted for the nuirder of this woman and ac(initted, and the record of liis accjuittal was put in. 'I'his evidence was objected to as tending to prejudice the prisoner's case ; but, field, admissible, for the house being the prisoner's, it was necessary to show that his attempt to set fire to it was unlawful and malicious, and tliese facts might satisfy the jury that the murder being committed by '^ I 1'2 I'ltlMINAI, DKJKSr, ;m another the prisoner's act was intended to conceal it. H<'!lina v. (in-enirooil, 2;i i). B. 250 ; U. S. c. 16H, s. 4 ; e. 171, s. IK). — On an indictment for attempt to commit arson, the evidence shewed that one \V., under the direction of the prisoner, after so arran<^ing a hhinket saturated with oil. that if the thime were communicated to it the* huildinj.; would have caufj;ht tire, li<^hted a match, held it till it Wiis hurning well, and then put it doNvn to within an inch or two of the hlanket, when the match went out, the tlame not havinj^ touched the blanket, Jfcbl, that the prisoner was properly convicted under 82-88 Vict. c. 22, s. 12. Hn/ina v, (ioodnntn, 22 C. P. 388 ; U. S. c. 108, s. 10. 84. — Defendant was charpjed with having set tire to a huilding, the property of one J. H., " with intent to defraud." The case opened hy the crown, was that the prisoner intended to defraud several insuranci? companies, but the legal })roof of policies was wanting iiud an amendment was allowed by striking out the words "with intent to defraud." The evidence shewed that ditU'erent persons were interested as mortgagees of the building, a large hotel, and J. H. as owner of the equity of redemption. It was left to the jury to say whether the prisoner irtended to injure any of those interested. They found a verdict of guilty, Ih'ld, that the amendment was authorized and and the conviction was warranj propt by evidence. Rcf/ina v. Cronin, 36 Q. B. 342, H. T. 1875 ; 11. S. c. 168, s. 4; c. 174, s. 143. 4. A»tSHlilt. 85. — The prisoner, who had been committed for extra- dition, was charged with assault, with intent to OFFENCKS. 18 commit murder, in that he had opened a railway switch with intent to cause a coUision, whereby two trains did conu; into coUision, causing a severe injury to a person on one of them, Jlcld, that this was not an " assault " witliin the statute. In rr Lciri.s, (> P. li. 2;iG ; 11. S. c. 108, s. Ii7 ; c. 171, s. I'.n ; e. 1()2, s. 25. See Ri'fiina v. liontcr, 80 C. P. 11) ; lieiiino v. McDonahl, 30 C. P. 21, twte. iU). — The conviction before a police ma<];istrate, charged that the prisoner did "unlawfully and nisiliciously cut and wound one M. K., with intent to do her grievous bodily harm," Held, on motion to discharge the |)ris()ner on luiheas corpiiH, at'lirniing the judgment of Hagarty, C.J., 8 P. li. 21, that if not sufficient to charge a felony under section 17 of 32 Yict. c. 20, 1),, it was a good conviction for a misdemeanour under section 1!), the unnecessary statement of the intent being immaterial. In re Boucher, 4 App. II. 191 ; R. S. c. 162, ss. 13, 14. 37. — The police magistrate has jurisdiction under the constitution to try either of these offences. Iliid. H. S. c. 178, s. 73. 38. — In an action of damages for assault, Held, reversing the judgment of the court below, that words in the declaration, charging the defendant with assault and battery with intent to do grievous bodily harm, did not necessarily constitute an action for felony. L(uiiot)ie v. Cheralier, ct nL, 4 L. C. K. IGO, Q. B. 1854. 39. — The defendants were convicted for unlawfully assaulting F. V. " by standing in front of the horses ill ill II CltlMINAl, niCJEST. and carriajj^e driven l»y the said V., in a hostile nianncr, and therehy foieihly detainiii}^' him. the Haid V., in tlie piihhc hij,'hway against his will," Ili'ld, that the conviction was bad in stating the detention as a conclusion and not as part of the charge, which, as shewn by the conviction, was merely standing in front of Ihe iiorses, and did not amount to an assault. Ii)-;iin due execution of his duty." At the time the constable was engaged in the service of civil process, //('/(/, (McDonald, ('..I., \- ^rcDowij), J., dissenting* that though serving civil process the constable came within the meaning of the words " peace of!icer," and defendant was properly convicted. Rciiiiid v. Ltiiit:, 7 Cau. Law Times 50, N. S. : K. S. c. 102, s. M. 4*2. — I'nder C. S. C. c. '.)!>, s. (Mi, there can be no conviction for an assault unless the indictment charges an assault in terms, or a felony necessarily including it, which manslaughter is not. Where, therefore, the indictment was for manslaughter, in the form allowed by that Act, charging that defendants " did feloniously kill and slay " one D., Held, that a conviction for assault could not be sustained. Regina v. IHiKjman d- Concin, 22 Q. B. 283; R. S. c. 174, s. 191. OFKKNCKS. 15 Ui. — llrhl, followin*,' HifiiiKi v. Bird, 2 Den. C. C. !)4, luid Rcijiuu V. Pliclps, 2 Moo. ('. C. 240, that oii an indict- ment for niurdei- the prisoner cannot he convicted of an assault under ;J2-:}8 Vict. c. 29, h. T)!. Riui'iuit V. (j,i,u'i*, 22 C. 1'. 1H5 ; H. S. c. 174, h. VM. II. -On an indictment for murder in tlie statutory form, not fhar):]!in<:; an assault, the prisoner, under !i2-H;i Vict. c. 20, H. 51, cannot he convicted of an assault : and ills acquittal of the felony is therefore no har to :i suhse(juent indictment for the assault, llniinn v. >'.\. — At the Quarter Sessions the prisoner was found guilty on an indictment charging that she, on, etc., in and upon one J}., in the p( ace of God and of our Lady the (^ueen then being, unlawfully did make an assault, and him, the said Ji., did beat and illtreat, with intent him, the said iJ., feloniously, wilfully, and of her malice aforethought, to kill and murder, and other wrongs to the said 13. then did, to the great damage of the saiil Ji., against the form of the statute in such case made and provided, and against the peace, etc. A count was added for common assault. The evidence shewed an attempt to murder, but it was moved in arrest of judgment that the court had not jurisdiction, for that it was a capital crime, under C. S. C. c. 91, s. 51, llcJd, that the indictment did not charge a capital ofTence under that section, nor an ofTence against any statute, but that the conviction might be sustained as for an assault at common law. Rnjina v. McKvoy, 20 Q. B. 341; R. S. c. 162, s. 34. F.C.D. 2 m lit!; ! 18 rniMiNAL moEST. ^i. — Where the defendant had l)een convicted and punished hefore the recorder's court, Held, that this was no bar to the plaintiff's action for damages for the same assault. Marcltesdult ((■ Grcfioire, 18 L. C. J. 1 10, and4 R. L. 541 ; E. S. c. 178, s. 75. No. 21 (iitfc. 55. — Where a person is charged with a criminal offence, and receives a certificate of acquittal, such certificate will operate as a bar to any civil process for the same matter. Jidieit v. Kiiu/, et al., 17 L. C. 11. 208 : R. S. c. 178, ss. 74, 75. No. 21 ante. 5G. — Where a man is himself assaulted by a person dis- turbing the peace in a public street, he may arrest the offender and take him to a peace officer to answer for the breach of the peace. Fonwatcv v. Cldrk, 3 Q. B. 151; R. S. c. 17 i, s. 24. '">, \SSI\UU, lll«>llt— 57. — Tpon an indictment charging that the prisoner " violently and feloniously did luake an assault, and her, the said R., then violently * * did ravish * * ." The prisoner may be found guilty of an assault with intent to commit rape. Rcijina v. John, 11 L. N. 313, Sup. Ct. ; 8 Can. Law Times 88 ; R. S. c. 174, s. 183. 58 --The prisoner was indicted for an indecent assault on the person of a buy aged about thirteen years. The evidence clearly showed the consent of the boy, and that he denounced the fact only when questioned by his father. It was ludd, that the prosecution could not be sus- tained. Hegina v. Laprise, 3 L. N. 139, 1880. OFFENCES. 19 I and action (I alt ((• c. 178, offence, L'titicate le same \ : R. H. 5on dis- rest the ;\vei' for 3 Q. B. prisoner nit, and I ravish y of an Jolill, K. S. assault 1 years, the boy, estioned i be sus- o!». — Upon the trial of the prisoner, a school teacher, for an indecent assault upon one of his scholars, it appeared that he forbade the prosecutrix telling her parents what had happened, and they did not hear of it for two months. After the prosecutrix had given evidence of the assault, evidence was tendered of the conduct of the prisoner towards her, subsequent to the assault. Held, tliat the evidence was admissible as tending to shew the indecent (juality of the assault, and as being in effect a part or continuation of the same transaction as tliat with which the prisoner was c barged. Per Hagahiy, C.J., and Ahmoi r, J., the evidence was properly admissible as evidence in chief. lx('(jinn V. Chute, 4G Q. 13. 555: V\. S. c. 1(;2, s. 41. <». Attoiii|»t — 00. — The prisoner on a trial for rape was found guilty of an attempt to commit, and motion was made to have the verdict set aside and a new trial granted, on the ground that the evidence, if proof sutiicient of any crime, was ])riof of a ditTerent crin:ie from that with which defendant was charged and found guilty, and that he would therefore be still liable to be tried for the crime of which evidence was adduced, Ildd, on a reserved case, that the prisoner having been found guilty of an attempt to commit the felony could not be tried for any other offence upon the facts upon which verdict was given, and the motion was therefore dismissed, lieiiina v. Wehsfi'v, 9 L. C. R. 196, Q. B. 1858 : R. S. c. 174, s. 183. (il. — A prisoner indicted for a misdemeanour (in this case it was for false pretences) may on such indictment be 20 CRIMINAL DIGEST. |l|{ convicted of an attempt to commit the olTence which is a misdemeanour. Retjina v. (JoJf\ 9 C. P. 438 ; E. S. c. 174, 8. 183. 62. — The prisoner was convicted of unlawfully attempting to steal the goods of one J. G. It appeared that he had gone out with one A. to Cooksville, and examined J. G.'s store with a view of robbing it, and that after- wards A. and three others, having arranged the scheme with the prisoner, started from Toronto, and made the attempt, but were disturbed after one had got into the store through a ))anel taken out by them. Prisoner saw them off from Toronto, but did not go himself. Held, that as those actually engaged were guilty of the attempt to steal, the prisoner, under 27-28 Vict, c. 19, s. 9, was properly convicted. Ilcfiina v. Esmondc, 26 Q. B. 152 ; R. S. c. 174, s. 183. 63. — Attempting to bargain with or procure a woman falsely to make the affidavit provided for by C. S. U. C. c. 77, s. 6, that A. is the father of her illegitimate child, is an indictable offence, liiui'ina v. Clement, 26 Q. B. 297 ; l\. S. e. 145. s. 8. 64.— On an indictment for attempting to liave connection with a girl under ten, consent is immaterial ; but in such a case there can be no conviction for assault if there was consent. lieniiid v. Connolly, 26 Q. B. 317 ; B. S. c. 162, s. 39 ; c. 174, s. 191. 65. — The prisoners being indicted for an attempt to com- mit burglary, it appeared that they had agreed to commit the offence on a certain night, together with one C, but C. was kept away by his father, who had discovered their design. The two were seen about OFFENCES. 21 which 438; npting hat he .mined , after - ed the io, and ne had them, not go uilty of >8 Vict. smondc, woman . U.C. tiniate 'lenient, incetion ; but in 5sault if B. 817 ; to com ■ U'eed to ler with ho had n about twelve that night to come within about thirteen feet of the house, towards a picket fence in front, in which there was a gate ; but without entering this gate they went, as was supposed, to the rear of tlu' house, and were not seen afterwards. Afterwards, about two o'clock, some persons came to the front door and turned the knob, but went otT on being alarmed, and were not identified, Held, that there was no evidence of an attempt to commit the offence, no overt act directly approxi- mating to its execution ; and that a conviction, there- fore, could not be sustained, licnina v. MiCnnn, ctal., 28 Q. B. 514 ; li. S. c. 1()4, s. 85. 7. Kaiikiiiv[ A(>1 - ()(i. — An indictment under the Banking Act, 1871, s. (J'i, need not allege that the return referred to was one required by law, nor that defendant made any use of the return, nor specify in what particulars the return is false. Rcfiina v. CcW, 22 L. C. J. 141, 1877 ; l\. S. c. 120, s. 81. Neither is it necessary to allege that the false return was made with intent to mislead or to deceive. Ibid. Nor that the ]3anking Act applies to the particular bank in question. Rctiina v. IfinckK, 2 L. N. 858, 1878. Nor that the accused was a director of a bank to which the Banking Act applied. I hid. Nor that the false return was ever made public ; nor that the oft'ence was committed in this district ; nor tbat the statements or returns were made to the Dominion Government. Ihid. (»7. — The enumeration m the indictment of several false statements in the returns constitutes but one count, '2-2 CiaMINAL DIGEST. and a general verdict of guilty Huttices if any one of the vstatenients be proved to be false. Rcfiina v. Cotr, 22 L. C. J. Ul, 1877 ; see also Rcr/ina v. Iliucks, 2 L. N. 358, 1878. 8. B<>ttiii^— (;s.— Tbe Act 40 Vict. (C) c. 31, intituled an Act for the repression of betting and pool selling, does not forbid betting, and does not apply to stakeholders in any of the three cases mentioned in section 2. Retina v. Dillon, 10 P. Pt. 352 ; 11. S. c. 159, s. 9. 9. Itigitiiiy- 69. — On a trial for bigamy, in proof of an alleged prior marriage, a deed was produced executed by the prisoner, containing a recital of the prisoner having a, wife and child in England, and conveying certain lands and premises to two trustees, in trust, to receive and pay over the rents and profits to such wife and child ; but with a power of revocation to the prisoner. Ji., one of the trustees, proved that at the time of the execution of the deed the prisoner informed him tljat he had quarrelled with his present wife, and had a law suit with her — that the place had been bought with the first wife's money, and he wished it to go to her ; and that he re([uested J3. to act as a trustee and to receive and to pay over to them the rents and profits ; but B. never paid anything over, nor had he ever written to or heard from such alleged wife, Hehl, not sufficient evidence to prove the alleged prior marriage. Rcg'nia v. Z>'(//', 29 C. P. 255 ; 11. 8. c. 161, s. 4. 70. — The prisoner was convicted of bigamy under 32-83 Vict. c. 20, s. 58. The first marriage took place in Toronto, the second in the United States, OFFENCES. 28 Held, that it was incumbent o'l the crown to charf^e and prove that at the time of the commission of the offence, the prisoner was a British subject, resident in Canada, that he had left Canada with intent to commit the offence. It was a misdirection to with- draw from the jury the question of his having left with intent. Per Wilson, C.J., the indictment did not sufficiently charge the offence. It is a question whether the trial should not be declared a nullity. Rerjimi v. Pierce, 7 Can. Law Times 191 ; 13 0. 1{. 22G; Ont. R. S. c. 161, s. 4. 71. — And lielii, on motion for arrest of judgment, that the word " elsewhere " in the statute, gives to the court its jurisdiction regarding offences committed in the United States by British subjects, but that the allegation that the accused was a British subject was necessary to support the indictment. Regitin v. MrQnifKian, 2 L. C. B. 340 ; B. S. c. 161, s. 4^ 72. — In an indictment for bigamy, it is incumbent upon the Crown to prove that a person marrying a second time, whose husband or Avife has been continually absent from such person for seven years then previous, knew that the other consort was living within that time, llef/ina v. Fontaine, 15 L. C. J. 141; B. S. c. 161, s. 4 73. — On a motion in arrest of judgment, on a trial for bigamy. Held, that in an indictment for bigamy committed in a foreign country it is necessary to aver that the accused was a British subject; that he was or is a resident in the piovince, and that he had left the ill wmm 24 CRIMINAL DIGEST. /;> same with intent to commit the offence. Repina v. McQiiuifian, 2 L. C. E. 340 ; K. S. c. 101, s. 1. — On a trial for l)i.i;iimy, the Crown estahUshcd the fact of the two marriages, which were over seven years apart. It was lichl, that the onus of proving tliat the prisoner did not knov/ of the existence of the first wife at the time of the second marriage, rested upon the defence, and that it was not incumhent upon tlie Crown to estahlish the prisoner's kno\vh-dj;e of the first wife's existence at the time of the second marriage, licijina v. Divijer, 27 L. C. J. 201 ; (j L. N. 66; 11. S. c. 1()1, s. 1. — Tlie witness caUed to prove the first marriage swore that it was solemnized by a J. P. in the state of New York, who had power to marry, but this witness was not a hiwyer nor inhabitant of the United States, and did not state whence the authority of the justice was derived. Held, insufficient. RcfjiiKi v. Smith, li Q. B. 565. 7<). — Where the prisoner rehes upon the first wife's lengthened absence, and his ignorance of her being alive, he must shew enquiries made and that he had reason to believe her dead, more especitiUy when he has deserted her ; and this, notwithstanding that the Ih'st wife may have married again. Ihid. H. S. c. 161, s. 4. 77. — The first wife is not admissible as a witness to prove that her marriage with the prisoner was invalid. Regina v. Madden, 14 Q. B. 588 ; R. S. c. 174, s. 217 ; Refiina v. Fontaine, 15 L. C. J. 141. The evidence of OFFENCES. 25 the first wife is not admissible, nor is that of the second until the first marriage is proved, licgina v. Tuhhec, 1 P. R. 98 ; R. S c. 174, s.*217. 78. — It is not necessiiry that marriages be soleinnized in a church. Where banns have l)een published, and no dissent then expressed by parents or guardians, the husband being under age is no objection even by the English j\[arriage Act ; but, qiunre, whether that Act is in force here. Rcfi'nin v. Seeker, 14 i). B. 004. 7iK — In order to ])rovo the second marriage, which took place in ]\Iichigiin, the testimony of the officiating minister was tendered, who testified that he 'was a minister of the ^Methodist church, that he had solemnized hundreds of marriages during the last twenty 've years, iliat he understood the marriage law of Afichigan, that he had resided all the time there, had had communications with the Secretary of State regarding these laws, and that he had solem- nized this marriage according to the laws of that state, Hehl, that this was admissible evidence to prove the validity of the marriage, even assuming that such ought not to be presumed. The Act, H. S. C. c. 161, s. 4, is iiit)-(t rirea. Reijind v. Brierlj/, 7 Can. Law Times 333 ; 14 0. R. 535 ; R. S. c. 1()1, s. 4. lO. Hi'ilM'ry— 80. — On demurrer lo an indictment set out below for conspiracy to bring about a change in the Govern- ment of the Province of Ontario, by bribing members of the legislature to vote against the Government, Held, (O'Connor, J., dissenting), 1. That an indict- able offence was disclosed ; that a conspiracy to bribe members of parliament is a misdemeanour at com- mon law, and as such indictable. 2C) CRIMINAL DIGEST. '2. That tho jurisdiction given to the leglshiture by II. S. (). c. 12, ss. 45, 4(), 47, 48, to punish as for a contempt, does not oust the jurisdiction of the courts where the otTence is of a criminal character, but that the same act may be in one aspect a conte/*ipt of the legishiture, and in another aspect a misdemeanour. 3. That the Legislative Assembly has no criminal jurisdiction, and hence no jurisdiction over the matter considered as a criminal offence. 4. That the indictment, considered as a pleading, sut'ticiently stated the offence intended to be charged. P('7- O'Connor, J. 1. That the briber}' of a mem- ber of parliament in a matter concerning parliament or parliamentary business is not an indictable offence at common law, and has not been made so by any statute. 2. That in all matters and offences done in contra- vention of the law and constitution of parliament, with the exception of treason, felony and breaches of the peace, parliament alone has jurisdiction, and the ordinary courts, civil and criminal, have no juris- diction. ;i. That the lex et conduct tido parliainenti reserves to the High Court of Parliament exclusive jurisdiction to dea"' with all matters relating to its own dignity, or coucerning its powers, its members, and its business, with the above three exceptions. Rctjinu v. Buntiufi, rt al., 21 L. J. N. S. 132 ; 7 0. E. 524 Q. B. 81. — Scinblf, that the treasurer of a municipality might be indicted for paying a member of the council for his attendance. East Missouri v. Horseman, IG Q. B. 57G. 8 8; 8. 0FKKNCE8. 27 8*2. — The statute 5-() ImIw. VI. c 10, against buying and soiling of otKees, is in force in tliis country under the 40 (leo. III. c. 1, as part of the criminal law of England. Any act done in contravention of that statute is indictable, thougii not specially made so. QiKcrc, per I'oiunson, C.J., whether it is also intro- duced by the S'l Geo. 111. c. 1, which adopts the law of England, " in all matters of controversy relative to property and civil rights." The 49 Geo. III. c. 12(), clearly extends the 5-G I'.dw. Vi. to Upper Canada, and to the office of sheriff. Foott v. Bullock, 4 C^. 15. 480, conlirmed ; Rciiitui v. Mener, 17 Q. B. ()02 ; liniinii v. Moodie, 20 (,). JJ. 3H<). 88. — Where a statute relating to municipal elections made no provisions to repress bribery, I^er lioiUNsoN, C.J., it would no doubt be an indict- able offence, lleijina e.r rcl. McKcon v. Hochi, 15 (). B. 140. y A^:«>iifN, <>t<>. m. — The French Government cannot obtain the extra- dition of a prisoner charged with enibe/zlenient. T(i.-icliem,irher, ex parte, ii. L. 328, S. C. 1874. 95. — Where the registrar and treasurer of the late Trinity House was charged with embezzling a portion of the fund known as " The Decayed Pilots' Fund," which, by the Trinity House Act, was declared to be vested in the master, deputy-master, and wardens of the Trinity House of ]\[ontreal, and to be under their manage- ment, Held, that that was an embezzlement of moneys, the property of " Our Lady the Queen." lieijina v. David, 17 L. C. J. 310; li. S. c. 104, s. 54; c. 174, s. 126. # ■ I . r i 1 32 CRIMINAL DIGEST. IM').— A clerk in a bank may bo convicted of embezzlement on proof of a general deficiency supported by evidence of unlawful appropriation, thouj^h no precise sum paid by any particular person is proved to have been taken. lieiiina v. (Hush, 1 L. N. 41, 1877 ; liamsay, A. C, 186 ; K. S. c. 104 s. 5!). 1)7. — The power of attorne}' must be written, and oral testimony of a verbal power of attorney will not bring the case within the scope of the statute. liegiiKi v. Chouinard, 4 Q. L. E. 220 ; E. R. c. 1(54, s. G2. 98. — The prisoner was convicted upon an indictment under 4 and 5 Vict. c. 25, s. 41, charging that one W. entrusted to him for a special purpose, viz., for the purpose of exhibiting to B. and ol)taining another note made by ])risoner to and endorsed by 13., — the said prisoner then being the agent of W., — a promissory note made by prisoner ])ayable to and endorsed by B., being a valuable security, without any authority to sell, transfer, etc., or convert the same to his own use, and that he unlawfully kept and converted it to his own use. It api)eared that tlie prisoner gave an endorsed note, payable at Kingston, in payment of goods ])urchased, with an ngreeraent that in case the payee should be unable to get it discounted at King- ston he would procure for him a now note, with the same endorsers, payable at lielleviilo. The payee being unable to get it discounted at Kingston, sent the note to W. at Belleville, with instructions to get a new note from the prisoner as agreed on ; W. entrusted the prisoner with the note on his promise that he would take it to the endorsers, and either return it or bring back a new note at once. The prisoner, however, kept the note, and neither returned it nor procured another, ^ \ OFFENCES. bS though often .requested to do so both by the payee and W. Held, that the prisoner was not an agent within the meaning of the statute, and that the conviction must be quashed. Kc(ji)i(t v. Hynes, 13 Q. B. 194; R. S. c. lf)4, ss. 61, 4. Scmhlc, also, that it could not he said that the prisoner was entrusted with the note without any authority to transfer or pledge the same ; or that his retaining it was proof of converting it to his own use. Ibid. J)'J. — A school trustee having money in his hands not as secretary and treasurer of a hoard, or in any otKcial capacity, cannot embezzle such money, his duty as trustee not re([uiring or authorizing him to receive it. /•V;7/.s- V. Tririn, 10 C. P. 116 ; R. S. c. 164, s. 4. 100. — Scinhlr, that the treasurer of a municipality may be indicted for an appropriation of the funds clearly contrary to law, even though sanctioned by a resolu- tion of the council. Miiniciinditji of Kast Xhsouri v. Ilorseiiuui, 16 Q. B. 576 ; li. S. c. 164, ss, 65-66, 4. 101 — The indictment charged that one M. entrusted to defendant, then being an agent, a promissory note of one K., for §200, for the special purpose of receiving £'(') thereon from A., and that defendant, contrary to the purpose for which said note was entrusted to him, did unlawfully negotiate; and convert the same to his own use. It appeared that R. had made the note for A.'s accommodation, and A. l)eing indebted to one C. in i*6, it was agreed that he should deposit this note with M. to secure the payment. J)efendant, by C.'s order, got the note from M. on condition that he should give K.C.D. 8 34 CRIMINAL DIGEST, it up to A. on the i'6 being paid. A. afterwards paid this sum to defendant, but defendant kept the note and sued R. upon it, alleginf; that he was entitled to do so by some arrangement with K., which the jury found was not the case, and they convicted defendant, Held, that the conviction CLuld not be sustained, for defendant was not an agent within the meaning of the Act, which refers only to general agents of the descriptions specified : and SemUc, that upon the evidence he was not M.'s agent, or guiity of any b^-each of trust towards him. Retina v. Armstrong, 2C Q. B. 245; U. S. c. 1(54, ss. 59, 4. 102. — The prisoner, being a clerk in the bank of Upper Canada, was placed in an o!lice apart from the bank, and entrusted with funds for the purpose of paying persons having claims upon the government, which pay- ments were made upon the cheques of the receiver-gen- eral, whose ottice was in the same building. While so employed, a deficiency was discovered in his accounts, which he at first ascribed to a robbery, but he after- wards confessed that he had lent the moneys entrusted to him to various friends. It also appeared that on a certain day he had received a cheque from the receiver-general for t'1,439, 15s. for coupons on govern- ment debentures held by the bank, and had credited liiimself in account with that sum as if paid out by Aiim on the cheque, making no entry of the coupons, thus covering his deliciencies by so much, and making rit appear that he had paid out the amount of tlie \}heque in cash, when in fact he had paid nothing. The indictment contained two counts : the first charg- ing that on, etc., the prisoner being a clerk, then employed in that capacity by the bank, did then and OFFENCES. 35 there in virtue thereof receive a certain sum, to wit, iil,439, 15s,, for and on account of the said bank, and the said money feloniously did embezzle. The second, that he as such clerk received a certain valuable security, to wit, an order for the payment of money, to wit, .£1,439, 15s. for and on account of the said bank, and the said valuable security feloniously did embezzle. On this indictment he was convicted of embezzlement, Ildd, that the prisoner had been guilty of embezzle- ment within 19 Vict. c. 121, s. 40; and the con- viction was ai'lirmed. Rejitui v. Ci(mii>in(js, 10 Q. B. 15; K. S. c. 1G4, s. 59. 103. — On an indictment against a treasurer of a county for embezzling i'9, 14s. lOd., received for taxes, it appeared that defendant received the money in October, 1858, and resigned in February, 1859, when his books were taken from him by the warden, although the usual time for making up his account with the county, 3Lst of March, had not arrived. This sum was not entered in his books as received, nor was there any entry of other moneys received for taxes at a later date ; but after his books had been taken, he sent in a list of moneys received, including this, although before he did so, it had been stated in a newspaper that this and other payments were not accounted for. There was no proof that he was indebted to the county on the whole of his accounts, and it was shewn that he claimed that it was in his debt ; and that the question was pending before arbitrators, to whom several civil suits between himself and the council had been referred. The jury found defendant guilty. //('/(/, that the evidence did not warrant the con- viction, and a new trial was granted. • ) il 36 tlUMINAL DIGEST. Held, also, that tlie money was not improperly charged to be the money of the county, though it was received for the townshi[) of Maidstone, and was to be accounted for to it by the county. Remind v. Bullock, 11) Q. B. 51;} ; R. S. c. ()G, s. 104 ; c. 174, s. 121. 104. — Upon an indictment for stealing money, the property of certain persons (composing the firm of the Ameri- can Express Co.), it appeared that the agent of the company in St. ^NFary's delivered to the prisoner for delivery two parcels containing §888.00, which had been sent by one K., addressed to E. & S. at St. Mary's, and that he appropriated them to his own use. On the trial in the quarter sessions the counsel for the crown asked the agent of the company when their (the company's) liability ceased, which was objected to by the prisoner's counsel. Held, 1st. That the enquiry aimed at was material to sliew how far the company had undertaken to deliver, and therefore when their duty as carriers ceased, but that the question as put was objectionable. 2nd. That it was a question for the jury to say whether the contract of the company was to deliver to E. I'v: S., and the property in the money therefore was properly laid in the indictment. 8rd. That if the undertaking was to deliver the money to E. & S., the prisoner was the agent of the company for that purpose. 4th. That money is property, of which a person can be a bailee so as to make him guilty of felony, if he appropriates it to his own use. The case not having been properly submitted to the jury on these points, a new trial Avas ordered in the court below. lieoina v. Massey, 13 C. P. 484 ; 11. S. c. 164, s. 5d, s. 2, § e. OFFENCES. 37 105. Defendant hired a pair of horses from a livery stable to go to a particular place, and afterwards absconded with them. The jury found that at first he did not intend to steal, but having accomplished the object of hiring, he then made up his mind to convert them to his own use. Held, that he was a bailee, within C. S. C. c. 92, 8. 55, and properly convicted on an indictment for larceny in the ordinary form. Iteyina v. Tweedy, 22 Q. B. 120 ; R. S. c. 164, s. 65. 106. — In an indictment of a tr'^^tee for fraudulently con- verting property, it is sufticient to set out that A. " being a trustee," did, etc., instead of that A. " was a trustee, and being such trustee, did," etc. The trust need not be set out in the indictment. Retina v. Stans/ield, 8 L. N. 123, Que. ; E. S. c. 164, s. 65. 107. — Prisoner was indicted for larceny, as a bailee, of a sum of money. The complainant produced a receipt taken at the time of the deposit in the hands of the prisoner, by which it appeared that the deposit was made " awaiting the payment he might make of a like sum to R. A. Benoit," Held, that this receipt implied that the prisoner was to pay a similar sum and not actually the same pieces of money, and that there was no larceny. That parol testimony could not be admitted to vary the nature of the transaction as expressed by the receipt. UviiiiKi V. Bcrtliidiinic, 10 L. N. 365, Que. ; i\I. L. R. 3 Q. B. ; R. S. c. 164, ss. 60, 4. 16. Knibrarery— 108. — It is essential to constitute the offence of embracery that there should be a judicial proceeding pending at .4 ^ ■ li. fTi 518 cniMiNAL uiapJST, the tim« the oti'enco is alleged to have heen coinraitted^ and the existence of such proceeding must be alleg* d in tlie indictment. A recognizance, which on its face does not set out the particular offence charged against the person bailed, and which therefore on its face cannot be iden- tified with any particular case, is insnfBcient to estab- lish that a case was pending. Reginn v. Leblanc^ 8 L. N. 114, Que.; E. S. c. 173, s. 30. See Rrpitia v. Comellier, 29 L. C. J. 09. 17. liUliMtiii<>ntH, Foroi;;n— 109. -The Imperial Statute, 59 Geo. III. c. 69, against procuring and endeavoring to procure enlistments in this countr}' for the army of the United States, Held, to be in force in this province, and a convic- tion under it sustained. R('(jiiui w Schram, Rcgiiui v. Andoson, 1-4 C. P. 318. 110. — A warrant of commitment under the Foreign Enlistment Act, 59 Geo. III. c. (59, s. 4, reciting that T. K. C. " was this day charged (not saying upon oath) before us," and without shewing any examination by the magistrates, upon oath or otherwise, into the nature of the offence, and commanding the constables or peace otftcers of the county of Welland to take the said T. K. C. into custody, Held, sufficient. Li re Clarke, 10 L. J. 331. 111. — A warrant of commitment under the statute, commit- ting the prisoner until " discharged by due course of law," sutificiently complies with the statute, which l)rovides for a committal until delivered by due course of law. Ibid. OFFENCES. 39 112. — A commitment under 28 Vict. c. 2, s. 1, stating the offence " for that he on, etc., at, etc., did attempt to procure A. B. to serve in a warlike or military operation in the service of the government of the United States of America," omitting the words, " as an officer, soldier, or sailor," etc., 11,'h}, had. /// /r Bviijht, 1 L. J. N. S. 240, C. L. Chamhers; 28 Vict. c. 2, s. 1, Repd. 113. — A warrant of coumiitment on a conviction had before a police magisirate for the town of Chatham, in Upper Canada, under 28 Vict, c, 2, averring that on a day named " at the town of Chatham, in said county, he the said A. S. did attempt to procure A. B. to enlist to serve as a soldier in the army of the United States of America, contrary to the statute of Canada in such case made and provided ;" and then proceeding, "and whereas the said A. S. was duly convicted of the said offence before me the said police magistrate and condemned," suffieientlv shewed iurisdiction. In re Smith, 1 L. J. N. S. 211, C. L. Chambers. 2nd. That the direction to take the prisoner " to the common jail at Chatham," the warrant being addressed " to the constables, etc., in the county of Kent, and to the keeper of the common jail at Chatham, in the said countv," was sufficient. Ibid. 3rd. That the warrant as above set out sufficiently contained an adjudication as to the offence, though by way of recital. Ibid. 4th. That the words "to enlist to serve" do not shew a double offence, so as to make a warrant of commitment bad on that i^round. Ibid. • l:..-i ■nr 40 CUIMINAL DIGKST. 5tli. That the offence created by the statute was sufficiently described in tho warrant as above set out. Ibid. 6th. That the warrant was not bad as to duration or nature of imprisonment. Ibid. 7th. That the amount of costs was sufficiently fixed in the warrant of commitment. Ibid. 8th. That there is power to commit for non-payment of costs, fbid. !)th. That the statute does not require both imprisonment and money penalty to be awarded, but that there may be both or either. Ibid. 114. — A warrant of commitment reciting that F. M. was charged on the oath of J. W., " for that he F. M. was this day charfj;ed with enlisting men for the United States army, offering them $350 each as bounty," without charging any offence with certainty, and with- out stating that the men enlisted were subjects of Her Majesty, and without shewing that J. W. was unautho- rized by license of Her ]\[o«>«iir«\ lii«l(M>«'iit — The indecent exposure must be in an open and public place, but by the circumstances a place ordinarily private might become public within the meaning of the law. Wheie a person exposed his person in a grossly indecent manner in a private yard so that he might be seen from a public road, where there were persons passing, the indictment would be maintained, Qucere, whether exposure to one persoii was sufficient to support the charge. Rciiina v. Lcvasscur, 9 L. N. 380, Que. ; R. S. c. 157, s. 8. iilii: OFFENCKS. 41 116. — The chartije was that petitioner hein<^ " a loose, idle and disorderly person," for that the said 11. W., on the 6th day of June, instant, at the said city of Montreal, did indecently expose his person, to wit, his i)rivate parts, in a vacant lot of ground adjoining St. Denis street in the said city, so as to he seen from the said street. It was contended that the exposure must he in a street, road, puhlic place or highway. The French version is very clear ; the words are i/ expose. The English version is not clear. The court adopted the version most favorahle to the prisoner. The conviction was quashed. Ex parte Walter, Ramsay, A. C. 183 ; R. S. c. 157, s. 8. See Vagrancy. 19. Extortion — 117. — Where two defendants sat together as magistrates, • and one (sxacted a sum of money from a person charged hefoj'e them with a felony, the other not dissenting, Ilehl, that they might he jointly convicted. Held, also, not indispensahle that the indictment should charge them with having acted corruptly. Refiina v. Tisdale, et al, 20 Q. B. 272. 20. Faliiic Pretences- 118. — The prisoner, who had heen discharged from the service of A., went to the store of I), ct S. and repre- sented herself as still in the employ of A., who was in the habit of dealing there, and asked for goods in A.'s name, which were put up accordingl}, hut, instead of being delivered to the prisoner, were sent to A.'s house. The prisoner, however, went directly from the store to A.'s house, and, remaining in the kitchen with the !tt • ■ 42 CRIMINAL DIGEST. servant until the clerk delivered the pnrcel, snatclucl it from the servant, sayings " that is for me, I am ^'oin;; in to see A.." but, instead of ^'oin^' in to see A., went out of the house with the parcel, Held, on a reserved case before the jud^^es in appeal, that the prisoner was rij^htly convicted as laid in tlu' indictment under 4 and /) Vict. c. 25, s. 45, of havinj^ obtained j^'oods from D. \' S. by false pretences. Rcilina v. lioblnmn, () L. C. it. 278 ; R. S. c. 104, 8. 77. 119. — The prisoner, at Seaforth, in the county of Huron, fals(dy represented to the a<^ent of a sewin;^' machine company that he owned a lot of land, and thus induced the a800.6".>, the property of P., with intent to defraud. It appeared that a suit was pendin; of the committee.' of manaj^ement of the company that he j^'ave the note for $250 because B. told him that a certain broker had discounted the note for $50, and he could not j^'et it discounted for less, and B. himself stated at the meet- ing that he had been obliged to pay the broker the $50 for discounting the note, and that the broker had entrusted him with the collection of it, upon which representation a cheque was given to A., by which Ik; obtained from the treasurer of the company the money to pay the note, and it was afterwards discovered that the broker had never discounted the note, but that ]>. TT^ 14 CIUMINAI. niOEST. liiiiisolf had discounted it and had cliarj^'fid $50 for doiii^ 80. ]^)th A. and li., on this, were indicted for ()htainin}4 $50 on false pretences, the money of J)., and others, with intent to defraud, Ifi'hl, on motion to yet asich' the conviction, that a shareholder in such a company couhl not commit hirceny from the company, or he f^milty of obtaining' its money hy false pretences, inasmuch as, heinf^ a share- holder, he was joint owner of the funds and property of the company, and the conviction was, therefore, had. ]i<'tlinS. — Where the prisoner was indicted for forginj]; a note for $500, having changed a note of whicli he was the maker from $500 to $2,500. Hold, that this was a forgery of a note for $500 and that notwithstanding the only fraud committed was on the endorser. Ilrcided by the presiding judge against the prisoner, it is too late to raise it now in this way, as ai)pears by the decision in Rex v. Failcrman, ct al., Dunison, 572. ]*(')• "Wkatiikuhk, J., dissenting, — It is admitted that the evidence is not sul'licient to convict on the lii'st count, and the onl}' question is whether the verdict can be sustained on the third. It is argued, however, that an indorsement itself of an order to pay is an order. OFFENCES. fi? now r V. that livat Idict pver, t'der. Tliiit tlio order to pay McFatri(l<:jo or order hv tlie iiKlors* .'<:r some circumstances," a forged order foi .1. payment of money. In view of the particular statute in question, upon principle, ] should think words " order for the payment of money " should be construed to apply, as they would be con- sidered to refer in the ordinary sense, to the main body of the instrununit and not to the indorsement, and in the absence of authority to the cnnirary I must express this to hi' upon consideration the best oi)inion I can form on the subject. On appeal to the Supreme Couil of Canada, Jli'ld, per ForuNiKii, IIknuy and Taschereau, J.I., (iiiTCHiE.C.J., AND Stkono, J., diss(>nting). that evidence of the uttering of a forged indorsement of a negotiable check or order is insiitHcient to sustain a conviction ou a count of an indictment charging the uttering of a forged check or order. On the second question re- .4' m ■ -^ *'^ 68 CRlMINAIi DKIKST. served. tlieret'oiU!, the judgment of tlio court l)elo\v Kliould hv reversed and the prisoncsr ordered to l)e disclmrged. I'fi- ItiTciiiE, C.J. — The question raised l)_v tht denuirrer was not properly before the Court in Appeal, the court below luivin^ been unanimous with respe( t to it. I'l'i- Si'KONd, J. -The court Ix'low rijj;htiy lieid, on the autiioi'ity of /tV'./' /. r'adcnnnii, |)en. ('. C. 572, thai the question raised by the demurrer was not pro))erly before the court, the Chief Justice; ha\in^' given judg- ment on the demurrer over-ruHng it at tlie trial. More- over, there was nothing in the law under which the prisoner was extraditcul to prevent the court from trying him for any offence for which he was, according to the law of the Dominion, justiciable before it. Appeal allowed, (^iiecn r. Cinmhujhdui, 1(5 March, 1885. Cassels' Digest, 111:11. S. e. 165, s. 30 ; c. 142, S.23. 1G8. — It is not necessary to allege that the indorsement in question had been declared false by any competent authority, etc., nor that it was obtained with intent to convert the note or paper-writing into money. Retina V. Boiichn; 10 R. L. 188, 1880; R. S. c. 1()5, s. 80. l()i). — A charge of forgery cannot be brought up for trial before a judge of the court of Queen's Bench under the Speedy 'J^rials Act. RegiiKi v. Hcoti, G Can. Law Thnes, 811, Ont. Roy \. Malouiii, 2 Q. B. R. G(5 ; 4 L. N. 872, gue. 170. — The court of quarter sessions has no jurisdiction to try the offence of forgery. Reiji}ta v. McDonald, 81 Q. B. 8B7. See 178 7^os/. — - • * %t,' OFFKNCKS. 69 •:f.. 171. — " Mn. McFv., Siii, — Would you be good onougli iis for to let me have the loan of $10 for one week or so, and send it by the bearer immediately, and much obli^M' your most humble servant. (Si<;ned), I. Almiras. P. 1\" Ilchl, not an order for the payment of money, but a mere request. I{r;ii/n( v. liropdle, 20 (^). B. 'H\0 ; H. S. c. 1()5, s. 2!). IT'i. -" §850. Carick, April 10th, 1803. .1. McL., tailor,— IMease give Mr. A. I^. t') the amount of $3.50, and by doing so you will oblige me," Held, all order for the payment of money, and not a mere re(iuest. Ji(;. 174. — Indictment for offering, etc., the following instru- ment knowing it to be forged : — " I, .J. H., do agree to W. C, of \V., the full rite and privilege of all the white oke and elm and hickory lying and standing on lot 26, south part, on the 3rd concession, Plymp., for the sum of $30, now paid to H. by C , the receipt whereof is i 70 CHIMINAI, DKiKST. licar liy iiir ackiiowlcdiJied.'" Tlie jury luiviii;^' con- victed tile ))iisf)n«sr, //('/(/, iipoii !i. cuso restn'vi'd, Int, that the instrii- inont foi'j^cd heiiifjj set out /// Intrc rrrhu in tlic indict- ment, th(^ description of itn loj^al character would he surplusaj^e, and was unnecessary ; 2nd, thiil under section 21), C. S. C. c. '.)!), it is not necessary to aUej^e an intent to defraud in an indictment forforgei'y ; 3rd, that the averment of the offence \nmv^ cnilfn fovnittiu atatittl was imnuiterial, (tlie ohjection hcini; (hat there was nothing in the iiKhctment, which cont;iin(«l this averni(;nt, to show tiiat the olfeiico was aj^ainst any statute) ; -Ith, that the instrument mijjjht he construed as an agreement or contract to sell the timher, or a receipt for the payment of monc}', and in either case canu! within the '2'2 \'ict. c, {)4, and the conviction was sustain(Hl. liciiinn v. Cdrsoii, 14 C. P. :30. — A division court haililVwho had an execution against V. M. and H. ^1. arranged to accept a note made hy A. M., payabh; to A. J). F. The note was drawn up hy the bailiff and handed to the prisoner to obtain the indorsement of A. J). F. The. prisoner shortly after- wards returned it with tlie name A. D. F. indorsed upon it. The note was then handed to A. M., who signed it and delivered it to the bailiff. The indorse- ment was a forgery, Held, that an in'' uent for forgery would not he, for at the time when A. D, F.'s name was affixed, the J*. * *--!.*.' against l,y A. up l)y lill the alter- (lorsed ., who idorse- OI'l'KNl ES. ( 1 iiistrunicnt wuh not a [iroinissory noto bv reason of tin; maker's name not being tin ii signed to it ; and neither would a count for altering lie, for after it was signoil by A. ^^. it was nev(U* in the; prisoner's poHHOSsion. li,'!iiini V. MrFrr, 7 Can. Law Tinu;s 71 ; 13 Out. U. H : U.S. c. Ur,, s. 28. 177. — A pr()niissory not(! had bc(;n drawn by tiie prisonej-, piiyable two months after date to the order of on^} S., and afterwai'ds endorsed by said S., and the prisonei- then alti'red the note from two to three months and discounted it at a l)anl<. It was objected tliat the forgery or uttering, if any, was a forgery of, or the uttering of a forged indorsomont, (the note having been nuide by iiimself) and that there was no legal evidence of an intent to defrauti. //('/(/, that the altering tlic note while in his own possession after it was indorsed was a, foi-gery of a note, and not of an indorsement : and that the passing of the note to the third party, who was tlier(;by defraudcul, was sufticient evidence of an intent to defraud. Rcfiina v. Crai;!, 7 C. P. '2\V,) ; K. S. c. Ibo, s. 28. 178. — Defendant was convicted at the (piarter sessions on an indictment for uttering a promissory note pur- porting to be made by one V., for I'l 10s., with intent to defraud, knowing it to be forged. It appeared that some boys had been annising themselves with writing promissory notes and imitating persons' signatures, and among them was one with F.'s name. The papers were put into the tire, but this note was carried up the chimney by the draft, and fell into the street, where it was picked up by defendant. A person who was with liira at the time said that he thought it was not rill ; I IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I 11.25 ^1^ 1^ S Hi ■■■ I!: LS 112.0 IIU U III 1.6 vl m ^i '/ /A G" #A ]? € b b- p^ 7*' cni.MINAI, DKIKST. fTeiuiine, and luh isod liiin to destroy it : Imt the dofctidiiiU kept it, and aftcrwiuds passed it ol!', tolling the j)ersi)n who took it that it was ^ood, Ilchl, tliat the derciidant was guilty of a lelonious utt(n*in<^ ; hut the conviction was (piashcMl. for the indictment was defective in not statin}^ expressly that tile not(! vas forj^ed, or that defendiuit uttered it as true ; and the case should not have been tried at the (). ]i. llH; K. S. c. 171, sched. No. 2, 17'.'. — Trisoner was indicted for for^jin^ an ordi'r for the delivery of goods. The only witnesses examined were the person whose name was forged, an, s. 4, a crime; and a conviction therefor was consecpientiy quashed with costs against the landlord, because the defendant had been compelled to give evidence on the p)'osecution. R< appioxiraation of tho number of buttons depended upon the exercise of judfiijment, obser- vation, and mental efVort, this was not a " mode of chance" for the disposal of property witliin the mean- ing of the Act. Qiiicri', wlictlier the defenthmt should not p;et tlic costs of quashing conviction made to test tlic law in such a case. li''(iiti, g. i;. : H. S. c. ir,<>, s. ;j. i; tt.l. l4i«lii:i|»|»iii;; IHH. — 'J'lie i)lainlitV in error having been comniittcil to ga<>l for trial on a, charge of unlawfully and forciidy kid- napping and taking one Jiratton without authority, with intent to transport him out of Camula, against Ins will, was, on the '24th of June, 1H72, brougiit before the county Judge, by whom he consented to be tried under the :{'2-l3iJ \"u-t. c. 85. In the record »h'awi» up under that statute, it was charged that he did felo- niously and without autliority, forcibly seize and confine one li. within Canada, etc., (without alleging any intent), and that he thd afterwards feloniously kidnap one r>. with intent to cause the said ]>. to be unlaw- fully transported out of Canada against his will, etc. Tile judge lixed the 8rd of July for the trial, and on that day the prisoner said he was ready, but upon the recpu'st of counsel for the crown the trial was post- poned till the loth of July, when the prisoner was found guilty on both counts. An amendment of the indictment was allowed by the judge, changing the name of Rufus Bratton to James Rufus J3ratton. In the notice re(iuired from the sherit!" to tin- judge, by J12-8B Vict. c. 35, s. '2, only the charge contained ii\ r 7<) CRIMINAL innEST. the second count of the iudictmt'iit was referred to. On errors bcinf; assi<^ncd, Hchl, tluit tlu' Ht'Hsions liad jurisdiction ovei* the offence, and so the county judjijc had power to try it, Held, also, that the record was properly framed, in statinj^ the offence char}j;ed in such form as the depo- sitions or evidence^ shewed it should have been ; and that the jud}i;e"s jurisdiction was not conffned to the trial only of the charj^'o as stated in the commitment, n<'hl, also, that the jud^e had power to postpone the trial, and the record was not defective in not stating; the cause of the adjournment. By .Vl-iV,) Vict. c. '20, H. GO, luider wliicli the chariiii was or(lere(i to nruig nim U[) to receive the ])roper judgment. Cornnall r. lit'fiii.a, iJfi Q. B. lOO ; R. S. c. H)2, s. 4r,. •24». l<>ii-«M>iiy - IMJI. — The fact that the sum Ht(den wat; described in brackets as "legal tender notes" is unimportant, as the coin or note need not be specified. l*u. lt)0. — The prisoner was indicted for larceny under the Indian Act of 1880, 48 Vict. c. 2H, s. G6 (Di, and was convicted, llcldy Wilson, .1., dissenting, that he ought not to have been convicted because, per Ahmoir. J., the wood, the subject of the alleged larceny, was not in the absence of satisfactory information supported by athdavit, *' seized and detained as subject to forfeiture* under the Act : and because, per O'Connor, J., the attidavit retpiired by section r»4 had not been mad«', and was a condition precedent to a seizure. Per Wilson, C.J. — Section 04 cannot apply to trees found by the othcer of the department in the act of being removed from the lot on which they have been wrongfully cut, or where there can be no doubt they have been unlawfully cut, for such an ;ip))lication 78 CRIMINAL niOKST. b : would iniiko it iuipossible to effect a seizure in such ciiHCK. lit'iiiud V. Fcurnuui, 10 Out. Hep. 0()() ; fi Can. I.aw Times, 121 Out.: I!. S. e. 164, s. 50 ; c. \W, s. 55. 101. -Ilclil, Camkuon, J., (lisst'iitin*^, that the prisoner was properly convicted, on the evidence set out in the report, of the larceny of certain articles connected with a mill which he had rented from the jirosecu- tor, and that in the manner in which the case was reserved, the only (luestion for the court was, whether in any view of the evidence the ])risoner could have heen found {^'uilty. llf(j\U(i v. Stcwnrt, 43 (}. B. 574 ; II. S. c. 1()1, s. 57. 11)2. —The prisoner was convicted before; county jud<:;eH' criminal court on a charge of receiving stolen goods, knowing them to have been feloniously stolen, and was sentenced to imprisonment. On an application for a hdlicas corjuis, Held, that the court was a court of record, and that under li. S. O. c. 70, s.l, there was therefore no right to the writ. Held, also, that the judge had power to imprison, JIclil, also, that if ;in indictment for stealing certain articles he sustainable as to some of the articles stolen, the conviction is good, although the indict- ment may contain any number of articles as to which iiu indictment could not be sustained, livfihut v. St. Denis, 8 P. It. 10 ; K. S. c. 1G4, s. 82. 103. — Where an indictment for larceny was drawn accord- ing to the forms given by C. S. C. c. 0!), s. 51, it was. on motion for arrest of judgment, held valid. Rcijina V. Dorinn, 8 L. C. J. 281, Q. B. 1857 ; E. S. c. 174, Scbed. No. 2. OFFKNCKS. 79 r.)4. — And whc'iH! the prisoner, after beinj^ tried and found guilty of stealing money, moved for arrest of judg- ment and a new trial, on the ground, among other things, because the indietnunit was faulty and defec- tive, inasmuch as the species of " money," whether bank notes or coin, which the defendant was accused of stealing, was not si)e('ilied in saiil indictment, the application was rejected. l{c(jiiui v. JJrixroll, H 1^. C. J. '2SH, Q. \l. 18G2 ; U. S. c. 174, s. 12!). UK"). — An indictment for larceny will not lie against a partner on account of the partnership property. Ji(uiinfi V. Lniirnlniich; 18 L. C. J. 21 '2, I,). B. 1871 : K. S. c. 164, s. 58. 1{)(>. — A shavehold(;r in a joint stock company cannot commit larceny from the comi)any, as, being a share- holder, he is joint owner of tlu." funds and property of the company. lic8. — Wilt-, ttie prisoner was indicted for stealing "an original document, to wit, an act or deed of transfer," made before notaries, and, on a second count, H(» CltlMINAI, KKIEST. with HtcaliiiK n ocrtaiii notarial minute, to wit, ** an autlK'ntic copy ol' an act or dwi] ol' transftir," //'/'/, that, l>y tlic Ktatutf in force in Canada, it in not an otVeiice to steal an authentic copy of an act or deed passed hefore a notary. Hifiiun v. Mtitinnis, 7 Ji.C. .1. :U1, Q. IJ. KS()2: It. S. c Kll. hs. li>. l:l, •->. III'.). — The proprietor of a rpiantity of hrooin corn (hdivered it to defen(hint under an a^a-eement tliat, when defen- dant should have nnnnifactured it into brooms, he should not sell them, hut that the clerk of the plaintiir should sell them on his, ])laintitrs account, and when that was don«!, he would (h'duct his advances from the proceeds of the sale, and (U'fendant should have the halance. Defendant, having sujjplied the smaller material requisite, manufactured the brooms and con- verted them to his own use and profit, and on bein;^' indicted for a larcenv Iluld, that the delivery of the broom corn to defen- dant was a bailment to him, and that fraudulently converting the brooms to his own use was larceny under the provisions of C. S. C. c. !)2, s. 55. liejjinn V. Leboeiif, [) L. C. J. 245, Q. S. 1874 : R. S. c. 1G4, s. 4. 200. — An indictment for larceny on board of a British vessel " upon the sea " is sufWcient, without saying "upon the high seas." lictiitui v. SpnuKili, 4Q.L. II. no, 1M7H; R. S. c. 174, s. K. 201 — Prisoner appeared to answer to a charge of having, on the 2()th October last, stolen the sum of $508.75, the property of P. T. A second count in the indict- ment was to the effect that he had received the mone.\' knowing it to have been stolen. Prisoner and P. T. were in purtnershii) from May to August, when their li; I i OFFKNCE8. 81 prfimises were burnt down. Tlioy tlioreupon dissolved partnorship, it bfin*,' aj;re('d that tlio assets should be equally divided between them. There wt^re two insur- ance policies among the assets, payuu^nt beinirse is by sumnniry prose- cution under It. S. C. c. 43, ss. 20, 27, 28. Hniina v. Johnnon, 8 Can. Law Times, 3JM, Ont. m 205. — Duriu}^ the nights of tiie 15th and KJth of .January, 1884, tliievfs bn)ke into tlie broker's otHce of one I), in Quebec, and carried oil" some $4,000. The money was in bank bdls, Dominion notes, and f^old and silver. A silver watch also was stolen. The ne\t day the police arrested two 8tranf:;ers on suspicion. These persons were searched and i)art of the stolen money found on them. During the next few days, the news- papers publislied Ion}; accounts of the robbery, and some details regarding one of the persons arrested, who was recognized as an old offender. This person, on the afternoon following the robbery, went to the residence of the defendant L., who kept a book store, and represented himself as the nephew of L., and after calling on the family upstairs and learning that L. was absent from the city, he came down stairs to the bookstore, and introduced himself to F., the other ^ m OFFrSCKS. 88 defendant. IIih story to him wuh, that he had come to {^U(!l)('e with Honi(! AtnericaiiH to purchase horses, and deposited with F. a parcel of bank notes and a small l)a<{ containin<{ ^old and silver money, and also a silver watch. On his return to his hoardini^ house the man was arrested. L., on his return from Three liivers in the evening, was informed of the circum- stances hy v., his clerk, and tiiat the package had been placed in the vaults for safe keeping during the evening. F., at the refpiest of L., took the parcel out of th(! vault. It was proved that at this time L. knew who it was made the deposit, and that he had before been condennied for theft and similar olfeiices, Ifeld, that luider the above circumstances, the dc- fenchmts were guilty of receiving stolen goods knowing them to b(! stolen, and the fact that they derived no benefit from the theft did not relieve them from the responsibility of concealing it. Ri'ijiiid v, Foitrnicr vt al., 10 (}. L. 11. 35, Que. ; R. S. c. 104, k. 82. 20(5. — On a charge of burglary only, the prisoner cannot be convicted of receiving stolen goods, and a verdict under such circumstances will be (juashed on writ of error. Laurent v. Itc. 215. — In an action against a carrier for non-delivery of a package of money, defendant pleaded not guilty. The plaintiffs' witness, their agent, proved that within a week after his delivering the parcel to defendant he found that he had absconded ; that he then sued out an attachment against him as an absconding debtor ; Mill OFFENCES. 87 and tlmt, as ho believed, defendant was at the time of the trial in gaol, charged with fctealing the money, Ilelil, that this evidence .sufficiently showed a felony, as defendant upon it might, as a bailee, be properly convicted of larceny, under C. S. C. c. 92, s. 55 ; and a nonsuit was ordered. Haoarty, J., dissenting. Liri)i[ist<)ne, et al. v. Musscff, 23 Q. B. 15G ; 11. S. c. 164, s. 4. 216. — The prisoner was charged in the indictment with having received stolen goods on a certain day, and it was proved that the receiving extended over a period exceeding six months. Held, that the Crown was not bound to elect on which of the receivings it intended to proceed. Reriina v. Suin-nm, 6 L. N. 209, 13 K. L. 557 Que. ; li. S. c. 174, 8. 128. 217. — A county court judge trying a prisoner summarily under 32-33 Yict. c. 35 (D), nas the same authority to convict of an otfence, under 32-33 Vict., c. 21, s. 110 (D), instead of that charged, as a jury has. Rc(/ina v. Hoines, et al., 42 Q. B. 208 ; B. S. c. 164, s. 85 ; c. 176, s. 7. 218. — This section applies only to the temporary privation of property. Rpf)i)i(i \. Warner, 7 B. L. 116, 1875 ; B. S. c. 161, s, 85. 219. — On an indictment for stealing coopers' tools on the 5th of November, 1874, it appeared that the prisoner was not arrested for nearly two years afterwards. During that time — it was not shown precisely when — he was proved to have sold several of the tools at much less than their value, representing that he was n i h 88 » CRIMINAL DIGEST. a cooper by trade, and was going to quit it, which was proved to be untrue. It was proved also that he was in the shop from which the tools were stolen the night before they were taken, and frequently ; and that when arrested he offered the prosecutor $85 to settle and buy new tools, and offered the constable $100 if he could get clear, Held, though the mere fact of the possession by the prisoner, after such a lapse of time, might not alone suffice, yet that all the facts taken together were enough to support a conviction of larceny. lienina v. Starr, 40 Q. B. 208. 220. — A conviction for stealing wood under 32-33 Vict. e. 21, s. 25, was also bad, for not alleging that the pro- perty taken was of the value of twenty-five cents at the least ; the direction in the conviction, that the defendant should pay seventy-five cents for said wood, not being a finding that it was of that value. Repina V. Caswell, ante, No. 209. 221. — The prisoner, being the agent of the American Ex- press Company, in the State of Illinois, received a sum of money which had been collected by them for a cus- tomer, and put it into their safe, but made no entry in their books of its receipt, as it was his duty to do, and afterwards absconded with it to this province, where he was arrested. Held, that he was guilty of larceny, and was properly convicted here under 32-33 Vict. c. 21, s. 112. Reifina V. Henncssy, 35 Q. B. 003 ; U. S. c. 104, ss. 4, 88 ; 0.174,8.22. 222. — Demanding with menaces money actually|due, is not a demand with intent to steal, under 4-5 Vict. c. 25, OFFENCES. 89 8. 11. liegina v. Johuson, 14 Q. B. 569 ; R. S. c. 173, 8. 1. ^ee post ^os. 801, 302. 223.— The Act 32-33 Vict. c. 21, a. 43, makes it a felony to send " any letter deraandiufj; of any person with menaces, and without any reasonable or probable cause," any money, etc., Held, that the words " without reasonable or pro- bable cause," apply to the money demanded, and not to the accusation threatened to be made, lieifina v. Mason, 24 C. P. 58 ; li. S. c. 173, s. 1. See jwst Nos. 301, 302. See also Burglary, Embezzlement, False Pretences* Frauds, ante, Threats post. *17, Libol- 224. — On an indictment for libel the defendant cannot plead the truth of the libel, lieijina v. Doiu/all, 18 L. C. J. 85, Q. B. 1874 ; R. S. c. 163, ss. 3, 4 ; c. 174, s. 148. 225. — Nor can the existence of rumors be proved in justi- fication of the libel. lb. 226. — To an indictment for libel, it is necessary to plead not only that tbe publication was true, but that it was made for the public good. Rcaina v. Ilickson, 3L. N. 139 ; liiuiina v. Laiirier, 11 R. L. 184, Que. ; R. S. c. 163, s. 4. 227. — Where an indictment for libel contained a general allegation that the newspaper in which it appeared was circulated in the district of Montreal, the court refused to allow evidence of the publication of the w i ■■' ill !i' 90 OHIMINAli DKIKST. ' : r article iii ^fonlreal, or to allow an amendment of tlie indictment. lUuiina v. Ilichson, 3 L. N. 13!), 1380. 228. — A defendant committed for trial on a charge of libel, subsequently published other libellous tnatter concern- ing the prosecutor after the depositions had been put on file in the Supreme Crfurt, and it would be the duty of the presiding ; idge thereof at the next sitting of the court to submit the matter to the grand jury. The libels were published on the 30th December, 1885, and the 20th January, 188(5. A motion for attach- ment for contempt was not made until March 27th, 188(5, Held, that defendant had committed a punishable offence, as the proceedings were at the time so far pending ni the court as to enable it to act summarily by attachment to punish, if necessary, the offence committed. The main object of the application being to punish for the libellous publications, not to punish for the past offence, it was held not to have been made too late. Reriind v. Woodicorth, 7 Can. Law Times, 246, N. S. 2'29. — Evidence that the defendant in a criminal prosecu- tion is, at the time of the trial, editor and proprietor of a J jurnal in which the libel was printed, is insuffi- cient. The defendant should be proved to have been a proprietor or publisher at the date of publication. lieijina v. Sellars, G L. N. 197, Que. 28. ITlHrdor— 230. — An indictment for manslaughter will not lie against the managing director of a railway company by reason of the omission to do something which the company jiiliiiiii !? OFFKNCKS. 91 bv its cliarter was not l)ouiul to ., 18 L. C. J. 141. Q. B. 1874. 281. — As to murder committed in the United States by a slave to prevent capture. See//t re Amlcrnon/lO Q. B. 124, post No. G78. 232. — Prisoner beiiig indicted for the murder of one H., the principal witness for the crown stated that the crime was committed on the 1st of December, 1851), on a bridge over the river Don, and that the prisoner and one S. (who had been previously tried and acquitted) threw H. over the parapet of the bri(l<:];e into the river. The counsel for the prisoner then proposed to prove by one D. that S. was at his place, fifty miles off, on that evening ; but the learned judge rejected the evidence, saying that S. might be called, and if con- tradicted might be confirmed by other testimony. S. was called, and swore that he was not present at the time, but he not being contradicted, D. was not examined, Held, that the presence of S. was a fact material to the enquiry, and tliat D. therefore should have been admitted when tendered ; and tlie prisoner having been found guilty, a new trial was ordered. Rnfina v. Broun, 21 Q. B. 330. 233. — Deatli resulting from fear caused by menaces of personal violence and assault, though without battery, is sufficient in law to support a conviction of man- slaughter. Retina v. Dugal, 4 Q. L. R. 350, 1878 ; E. S. c. 162, 8C. 2, 5. 234. — On a trial for murder, the death of the deceased was shown to have been caused by his being stabbed by a ! \\- 92 CRIMINAL DIGEST. li : ! i sharp instrument. It was nroved that the prisoner stnuk the (]4> - '212. — ^^onrinf,' a raft in tli(> Ottiiwii lUver so as to pri'veut the oojupliiiimiit and the i)»il)lic j^cnfrjilly IVoin navi- }^atiiig it, c'oiisfitutcH a |)ul)lic Tiiiisanci' |)unishal)I(' as a inisdonicanor. lu-'jinn v. Id ii\ '<\ L. N. I'il : It. S. c. 17 1, s. 1 10. '2l:{. Wlioru the lU'Conih nt was coinictctl 1)V a iiirv of kcepinjj; in a huihhii<^f an excessive and dangerous (|iiantity of ^Mmpowder, th ' court adju(lf the gunpowder, lu'tiitid v. Unnlitp, 11 L. ('. .1. 1H(», (,). J5. *21I.--Hut a writ of error ;vas afterwards allowed to the defendant on the ground that, whereas the nui- sance was susceptible of being abated by removal of the powder, there was no need to order its destruction, and the sherifl" ought not to have been ordered to do more than abate the nuisance. //>. '245. — TIk' defendant was convicted of a luiisance in carry- iiig on a manufactory of animal numure in the city, and on motion to set aside the verdict, IliJd, that evidence to prove the advantage accruing or likely to accrue to the pul)lic at large from the sale and use of a manufactured article could not be adt '• «ed, inasmuch as it was settled that an allegation to the eti'ect bhat the thing complained of furnished a greater convenience to the public than it took away, was no answer to an indictment for nuisance. Reijina V. Bruce, 10 L. C. R. 117, Q. B. 18G0. K.f.D. 7 r !i! (1 Ill : iL J. U8 CRIMINAL DIGEST. 24n. — And lield, also, that the rule sic utere tuo nt alientim non loedas is a familiar maxim of the common law of England, as well as of the civil law. //;. 217. — An indictment alleged a nuisance to be near lot 1C>, and the evidence showed it to be on it, llehJ, a fatal variance, lifcjina v. Meyers, 8 C. P. 305. 248. — The defendant, agent of the Bell Telep^'one Company of Canada, was indicted for illegally erecting three telegraph poles in Buade street, a leading thoroughfare in the city of Quebec, thereby obstructing the Queen's highway, to the common nuisance of the public. The company was incorporated by Act ol the Parliament of Canada 48 Vict, c. 67, with power to establish tele- phone lines in the several provinces of the Dominion, and to construct, erect and maintain lines along any highway, street, bridge, watercourse, or any other such place, or across or under any navigable waters, either wholly in Canada, or dividing Canada from any other country, " provided that in cities, towns, and incor- porated villages the opening up of the street for the erection of poles, or for carrying the wires underground shall be done under the direction and supervision of the engineer, or such other officer as the council may appoint, and in such manner as the council may direct, and that the surface of the street shall in all cases be restored to its former condition by and at the expense of the company." This charter and the consent of the council duly obtained were relied on by the defen- dant as a plea to the indictment. The jury, under the direction of the court, found a verdict of guilty, subject to the question reserved for the determination of the court in banco whether the said company had ■^1 OFFENCES. 99 )mii\ion, authority under their statute, or were otherwise authorized hy law to place the said poles in the said street. Rcfiina v. Muher, 7 Q. L. li. 183, and 5 L. N. 43, Q. B. 1881. Conviction maintained in appeal : 1 Q. B. K. 384. 'lid. — On an indictment for nuisance in ohstruclin^ a high- way, judgment had been arrested and a second trial- had, in order to take the opinion of the jury on a par- ticnhir question which the court thought material. The jury upon the second trial found a general verdict of acquittal, without answering the question wliich was submitted to them by the judge. The indictment had not been removed by certiorari, and I/cId, therefore, that this court could not interfere by staying th'i cntvy of judgment until a now indict- ment could be preferred. Semblc, that the jury had a right to find generally as they did. Reijinn v. Spcnce, 12 Q. B. 519. 250. — I'pon an application for a rule to tax the costs of proceedings on an indictment for nuisance in obstruct- ing a highway, under 5-f) Will, and Mary, c. 33, and that they should be allowed to a particular person, the court refused the rule. A side bar rule is granted in England to tax these costs as a matter of course, but this application wont further. RciiiiKt v. Gordon and Reqina v. Rohson, 8 C. P. 58. 32. I*«'i*.iury 251. — The swearing falsely by a voter, at an election of aldermen or common councilnun for the city of Toronto, that he is the person described in the list of voters entitled to vote, is not perjury by any express enactment ; and a plea of justification to a declaration f i\m 100 CIUMINAIi DKJKST. on the case for imputiiij^' ixtrjiiry to pluinlilV, on tlu- ground of such false swcarin}:;, is had on (Icinurrer. ThomuH V. IHatt, 1 (,). li. 217; II. S. c. 15A, ss. 1, 2. 252. — The practice of indictinf^ parties or witnesses f(ir alle^'cd perjnry in a civil suit, wliilt; proceedings ard still pendin}^, disiipproved of. (Uiadl v. Me of perjury contained in tlie information and that in the indict- m(!nt, pi-ovided tin; indictmc^nt sets forth the sub- stantial char<:;(! contained in the information. lictjiiKi V. linK«l, 14 C.P. 1()8; l{. S. c. 171, Sched. No. 2. 254. — The prisoner bein of felony a<^iiinst one E. (1., it appeared that the felony was connnitted in the county of Middlesex, if iit Jill. 'i'he justices before whom tli(! examination took [>lac(; (tntertained tlie char}j;e and examined the witnesses within the c-ity of Ijondon. I)(!fendant"s counsel objected at the triiti that the justices, bein^ justices of the county of Middlesex, had no jurisdiction, sittinjj; in Lttndon, to examiiK^ into an olYence connnitted outside the city limits, Ilrhl, that the conviction was ilh^f^al. lu'iiiiia \. Roir, 14 (!. \\ 'M)l ; 1!. S. c. 171, s. lO. 255. — l)j)on an indictment foi- [)erjnry cf)mmitted upon the hearing of a comi)Iaint before a magistrate, the infor- mation havin<^ been proved. Jfdd, u[)on a case leserved, that it was unnecessary to prove any sunmions issued, or any step taken to «f« 0FFEN(1EK. 101 l)rin<^ the person coinplaiiicd of bd'orc! the luaf^iHtrato ; lor so loiij^ as he wan present, the manner of his ^'et- tin<^ there was immaterial. I\f(jin(t v. Mason, 2!) (}. v>. i:n. '25(1. —Tlie indictment was defective for not sliowing th(' jnrisiliction over the offcmee, In' allej];in^ where the hqnor was sold, the sah; of whieh without license was the (;oni[)laint ; but as judgment had been i)ronounced, this could be taken advantaj^e of oidy by writ of error. (jKdii', whether it was not (hdective nlso, foi' not showinjf that the {X'rsoJi com|)lained aj^ainst was present, or that a summons issued, and that the nuif^istrate was authorized to proceed (u puttt:. Ih. ^I')7. Attempting to bar<^'ain with or proch.e a woman falsely to make theariidavit provi(h;(l for by C. S. l'. C. c. 77, s. (>, that A. is the father of her ille. 262. — The fact that the stenographer who took a deposition in a civil case on which perjury is assigned has been sworn, must be proved by the record of proceedings in the case in which the deposition was taken. Wi OFFENCES. loa A party summoned to appear in one division of the Superior Court at Montreal, to answer upon articulated facts, and who has appeared and heen sworn in an- other division of the same court, where he has given his answers, may he convicted of perjury on the answers so given. Jieijina v. JJoiniic, M. L. R. 5} Q. B. mo. Conlirmed in Sup. Ct., 11 L. N. ;il5. 'i()3. — The non-production hy the prosecution on a trial for perjury of the plea which was tiled in the civil suit wherein the defendant is alleged to have given false testimony, is not material where the assignment of perjury makes no reference to the pleadings ; but the defendant, if he desire, may prove the contents of the uilproduced i)leading by secondary evidence. Neither is it essential to prove that the facts sworn to by the defendant as alleged in the indictment were material to the issues. lii'tiiitaw Rdsh, M. L. 11. 1 (}. 13. 227. 2G4. — To sustain a conviction for perjury in an aflidavit, it is not necessary that the jurat should contain the place at which the atlidavit is sworn, for the perjury is committed by the taking of the oath, and the jurat, so far as that is concerned, is not material. Retina v. Cnrne, 81 Q. B. .582. 2G5. — There was no statement in the attidavit as to where it had been made, either in the jurat or elsewhere, except the marginal venue, " Canada, County of Grey, to wit : " but tbe contents showed that it related to lands in that county, and it was proved that defendant subscribed the attidavit ; that the party before whom it purported to have been sworn was a justice of the peace for that county, and had resided there for some years ; that the affidavit had been received through the post-office, by the agent of the crown lands there. 104 (.lUMlNAL DIGEST. by whom it was forwarded to the commissioner of crown lands : and that Kuhseqncntly a patent issued to the party on whose behalf the attidavit had been made. Ili'ld, evidence from which the jury mi}2;ht infer that the aflidavit was sworn in the county of Grey. lb. '2»)l). — Ilchl, also, that if the affidavit was sworn in the county of Grey, the proof of the swearinj]; by the justice of the peace, and the taking of the oath by the defen- dant, were made out by proving their signatures. Ih. 2(57.— An election under the Municipal Act is commenced when the returning officer receives the nomination of candidates, and it is not necessary to constitute an election that a poll should be demanded. Where, therefore, in an indictment for perjury, defendant was alleged to have sworn that no notice of the disquali- fication of a candidate for township councillor had been given previous to or at the time of holding the election, the perjury assigned being that such notice had been given previous to the election ; and the notice appeared to have been given on the nomination of the candidate objected to. Held, that the assignment was not proved, lli'ijitui V. Coican, '11 (^. J3. (JOG. 268. — An indictment for perjury charged that it w-as com- mitted on the trial of an indictirent against A. B., at the Court of Quarter Sessions, for the county of B. on the 11th of June, 1857, on a charge of larceny, Hdil, sulficient. Rcrj'uia ■>■. Macilotudd, 17 C. 1*. (J;{5. 269. — A joint aftidavit made by the defendant and one D.. stated * * * «' Each for himself maketh oath ^Tfil OFFENCES. 105 and saith tliat, etc, ; and that he, this deponent, is not aware of any adverse claim to or occupation of said lot." The defendant havinj; been convicted of perjury on this latter allegiition, Held, that there was neitln^r ambiguity nor doubt in what each defendant said, but that each in substance stated that he was not aware of any adverse claim to or occupation of said lot. Ri'iihm v. Athiimon, 17 C. P. 211;-). 270.— Perjury cannot be assif^ned upon a deposition which has been irregularly taken, as where it was com- menced before a judge who took notes, and was continued under a different system before the pro- thonotary only. Renimi v. 1 B. 8. c. 174, sched. ± ^n I 'i7H. — An indit'tmeiit cliiirgiii'^ that dei'iMidaiit had sworn that " liu had paid L. the sum of $4,200, which was the balance of the money cominj^ to him out of the monies paid to him by Ikemer for seeurinjj; the con- tract for the water works of the City of (()uebec,'' will not be supported by evidence that the defendant swore that " lie had paid L. the sum of .S4,'200, which was the balance of the money coming' to him out of the mcmies paid to him by Beemer for seeurinj,' the con- tract for the water works of the ('ity of (Quebec and hif Eliset' Beaiulet on ht'hdl/of the Luke St.JoJni RailnuiyJ" Reiiina v. Tnalel, 14 Q. L. 1^ 193. 279. — The general verdict on two counts for perjury was held bad by the full court, and a new trial ordered, where the assignment in the second count was defec- tive in setting up part only of what defendant had said, and omitting a qualifying statement : and the evidence on the first count was so contradictory as to leave room for doubt whether the jury would have found a verdict of guilt}' had that count stood alone ; and this, notwithstanding the fact that had the lirst count stood alone the verdict could not have been touched. Pu'iiinx v. Bain, 23 L. C. J. 327, 1877. 280. — Parties separately indicted for perjury, alleged to have been committed at one and the same hearing, can be witnesses for each other. Ilr L. N. 1)5. :t:t. l*4>rM4>iiiiiM»ii - 282. — Fals(dy porsonatiiif,' a voter at a municipal election is not an indictahle otl'once. Remarks as to the form of indictment in such a case. Rcijinii v. llmjii, 2') (}. B. (;g. :tl. I*r4»|»(>i'i.v, Iiiiiii'i4'<>i |4> - 2h:{, — Tlie Act does not apply where the defendant cut lire- wood on a lot occupied as a sijuatter, and improved hy his hrothei', with the hitter's permission. 'I'here could he no malice against the prosecutor, the actual owner. The conviction was ({uashcd on appeal. DiiiiiniH v. Ihill, 13 (I h \\. 23(), (,)ue. ; 11. S. c. KJH, s. n!>. 284. -On the Hth Novemher, IBTo, an information was laid against V>. hefore the police magistrate of St. Thonnis, hy one N., under the 82-83 Yict. c. 22, for having unlawfully and maliciously hrokcn and injured a fence round the land of N. The defence set up was, that the fence encroached upon B.'s land : hut there was evidence which, if helieved, went to show that B. did not commit the injurv under a limm lidr exercise or belief of a right ; and the magistrate convicted and lined him. J}, appealed to the general sessions of the peace, where neither side asked for a jury ; the court urged them to have one, but the respondent, N., refused ; and tbe court having heard the evidence, decided that B. acted, though mistakenly, under a bona fide belief that he had a right to remove the fence, ^}§ OFFENCKS. 109 and without inalico ; luul thoy ordcrod the conviction to he quashed with costs. N. then appealed to cpiasli the order, ui)on the p;round, anionfjist others, that the case could not be tried without a jury : hut Jfilfl, that the Wl-iVA Vict. c. M, s. (Wl, which autho- rizes the court to try without a jury, is witliin llic powers of the Dominion Parliament, and that the case having been properly before! the sessions, this coiu't eould not rtsview tlieir decision upon tiie merits. Section 0(> of the S'2-i)i) Vict. c. 22, does not dispense with proof of malice in such cases, hut, read in con- nection with section 21), merely means that the malice need not he conceived against the owner of the property injured, lictjina v. lirndaliinr, 8H (^. Ji. 'AM ; li. S. e. 1G8, ss. 27, ()0. lii 1 was )f St. 2, for ijured [) was, there Unit B. ise or :1 and )f the court ,t, N., Idence, der a fence, 285. — The omission of the words " so tliat tlie same hf injured or destroyed," or words equivalent, in an indictment, under 32-83 Vict. c. 22, s. 11, is fatal, an - 28G — Having connection with a woman under circumstances which induce her to believe that it is her husband, does not amount to a rape. Rcji'ina v. Francis, 13 Q. 13, 1 1(5 : R. S. c. 162, s. 37. 287. — Jn the case of rape of an idiot or lunatic, the mere proof of connection will not warrant tlu^ case being left to the jury. There must be some evidence that it was without her consent, e.g., that she was incapable, from imbecility, of expressing assent or dissent ; and if she n I f I 110 CRIMINAL DIGEST. coiiHent from mere jiniiual pawHion, it is not rnpo. llegina v. Counoll,/, 'IC, (}. H. 817 ; R. S. 157, 8. 8. 288. — In tiiis case the charj^o was assault with intent to ravisii. The woniaji was insane!, and there was no evidence of her general character of chastity, or auythinj; to raise a presumption that she would not consent. Tlu; jury were directed that if she had no moral perception of ri^dit and wrong, and her acts were not controlled hy the will, she was not capahle of givint^ consent, and the yielding on licr i)art, the l)risoner knowing her state, was not an act done with her win. They convicted, saying she was insane and consented, Ildd, that the conviction could not be s.. stained. Ih. 280. — On an indictment for attempting to have coniu'ction with a girl under ten, consent is immaterial, hut in such a case there can he no conviction for assault if there was consent. lb, 1{. S. c. 102, s. 88. 290.— The meaning of the words that the prisoner "vio- lently and against her will feloniously did ravish," is, that the woman has been quite overcome by force or terror, accompanied with as much resistance on her part as was possible under the circumstances, and so as to have made the ravisher see and know that she really was resisting to the utmost, and in this case the evidence was Hdd, sufficient to warrant a conviction. The facts as they appeared in evidence, were left to the jury, who w(;re also told that they must be satisfied before con- victing that the prisoner had hnd connection with the prosecutrix, " with force and violence, and against her will;" and further, that "some resistance should be 2!)3. i Ij ' fill 'if It if' rll 1 out to as no ty, or jld not lad no jr acts ill)lo ol' it, the w with U(j and ed. ///. nection , but in ^sault it' sr " vio- ish," is, force or on her and so at she case the le facts ry, who ore con- witli the .uist her louid be OFFKNCER. in made on the part of th(* woman, to show that she really was not a consentinf^ party," Ildd, a proper and full direction. Ileifind v. Fick, 16 C. P. 871). •i!>l.— Prisoner was indicted under ;i"2-:}}i Vict. c. 20, s. 58, for an attempt to coniniit rape upon a child between ten and twelve years of a piove that the ^'irl hati had connection with other young persons, and that she had consented to the alleged acts of the prisoner, Jli'hl, that the consent of the child was immaterial, and therefore that evidence of such consent would be rejected. Iicijina \. P. 21)4. — Where the prisoner, heing tried for the erime of rape, was found guilty of an attempt to commit rape, and a motion was made to have the verdict set asidi^ and a new trial granted, on the ground principally that the evidence, if proof at all, was proof of a different crime from that of which the defendant was found guilty, and that he would therefore he still lial)le to hi^ tried, Held, on a reserved case, that the prisoner having been tried and convicted of an attempt to commit the felony, he could not he tried for an_v other offence on the facts upon which the verdict was given, and the motion was dismissed, lietiiiui v. Jl'diHtcr, !) L. C. It. li)(), Q. J5.; 1^ S. c. 174, s. 185. 295. — One W. was brought before magistrates in the cus- tody of defendant, a constable, to answer a charge of misdemeanor, and after witnesses had been examined, he was verbally remanded until the next day. Being then brought up again, and the examinatiori concluded, the justices decided to take bail and send the case io the assizes. He said he could get bail if he had time to send for them, and the justices verbally remanded him till the following day, telling defendant to bring him up then to be committed or bailed. On that day defendant negligently [)ermitted him to escape, for which he was convicted. Held, that W. was in custody under the original warrant, and the matter still pending before the magistrates, until finally disposed of by commitment ■M} OFFENCES. 113 to custody or cliscbarf];e on bail ; and that the con- viction was proper. Rctjina v. Shuttleuorth, 22 Q. B. B72; li. 3. c. 155. 37. Riot— 206. — Defendant was indicted for a riot and assault, and the jury found him guilty of a riot, but not of the assault charged. Held, tbat a conviction for riot could not be sus- tained, the assault, the object of the riotous assembly, not having been executed, although tlie defendant might have been guilty of riot or joining in an un- lawful assembly, lu'ijina v. Kelly, 6 C. P. 872 ; 11. S. c. 147. 297. — A procession having been attacked by rioters, the prisoner, one of the processionists, and in no way con- nected with the rioters, was proved, during the course of the attack, to have tired off a pistol on two occasions — first in the air, then at the rioters. So far as appeared from the tividence, the prisoner acted alone and not in connection with any one else, Held, tbat a conviction for riot could not be sus- tained. The prisoner having been indicted jointly with a number of the rioters, on a charge of riot, and convicted ; upon a case reserved after verdict, the conviction was quashed, liajina v. Corconiit, 20 C. P. 184; li. S. c. 147. 298. — Counts for riot and unlawful assembly, under the Rev. Stat., N. B. t. 89, c. 147 (Con. Stat., p. 1,084), which are misdemeanors, may be joined in an indict- ment with a count for assault. Re(j\na v. Loiuj, 7 Can. Law Times,:250, N. B. F.C.D. 8 n 114 CRIMINAL DIGEST. If! !' 3§. Sinug:{j|rliii;;— 299.— Although it is provided by 31 Vict. c. 6, s. 80, that persons unlawfully removing goods from a bonded warehouse should incur the penalties provided against smuggling, and by section 75 of the same statute smuggling is made a misdemeanor, punishable by a penalty not exceeding two hundred dollars, or im- prisonment for a term not exceeding one year, or by both, still an indictment will not lie, under section 80, for a misdemeanor, committed under section 75. Mecjina v. Bathgate, et al., 13 L. C. J. 299, Q. B. 18(i9. 302 39. Stollionatiis— 300. — The defendant was convicted before the Queen's Bench of having sold a certain immovable property as free and unencumbered, well knowing that he had previously granted a hypothec on such property to the complainant, and that such hypothec was registered, Tlchl, on a reserved case by the full bench, that the penalties mentioned in the statute under which th(! conviction was had were cumulative, and the prisoner was sentenced accordingly. liciiinn v. Palliser, 4 L. C.J. 277; B. S. c. 164, s. 94. 40. Threats— 301. — In order to constitute the crime of sending threat- ening letters, it is necessary that the letter contain an express or implied demand, that it be sent to the person threatened or to some other person with the intention that it reach such threatened party, that the threats be of a nature to intimidate a person of ordinary force of character, and that the demand be made without OFFENCES. 80, that . bonded I against } statute ble by a , or im- av, or by ction 80, ;tion 75. B. 18(1 1 1 i; 1 i 1 1 II n ■ i 1 1 1 1 1 0FFKNCE8. 119 vagrant persons ; theiu- t hsive igs him i means way or ^et lives R. B86 ; lawfully IT drunk, y person lisclosed d iiicora- ved his Miviction fies, 100. a public disturb- •s (), for equentcr ;he pay- siatute, tual fre- section for trial lep. 523, 30il. — On an application to the divisional court to quash a conviction made by the police raapiistrate of the city of Toronto, aj:;ainst the defendant for keepinf^ a house of ill-fame, there being evidence, upon which the magis- trate could convict, the court refused to interfere. In the conviction Ihe offence was stated to be against the statute in such case made and provided, Held, that if not constituted an offence under 32-33 Vict. c. 32, the reference to the statute might be treated as sur[)lusage, and the conviction sustained , under the common law ; but that the reference to the statute might be supported, because the 17th section imposes a punit ''mcnt in some respects different from the common law. Re(jimi v. Flint, 4 Ont. liep. 214, Q. B.; 11. S. c. 157, s. 8. aiO.— A conviction under 32-33 Vict. c. 28, for that V. L. was in the night time of the 24th February, 1870, a common prostitute, wandering in the public streets of the City of Ottawa, and not giving a satisfactory account of herself, contrary to the statute. Held, bad, for not showing sufficiently that she was asked, before or at the time of being taken, to give an account of herself, and did not do so satisfactorily. liegina v. Lcrccque, 30 Q. R. 509. 311. — Bemhle, proceedings having been taken under 29-30 Vict. c. 45, that the evidence might be looked at ; and if so, it was plainly insuliicient in not showing that the place in which she was found was within ^'^^e statute, or that she was a common prostitute, xo. R. S. c. 157, S.8. 312. — The defendant was convicted under the proceedings taken under 32-33 Vict. c. 32, (D), not 32-33 Vict. ^:i I 120 CRIMINAL DIGEST. c. 28, (D), for keei)in;j; a house of ill-fame. The con- viction merely " ordered " hut did not " adjudf^e " any imprisonirent or any forfeiture of the fine imposed, Held, had, as suhstituting the personal order of the magistrate for a condemnation or adjudication. The conviction and warrant of commitment ordered the defeudant to he imprisoned for six months, and to pay within the said period to the said magistrate the sum of if 100 without costs, to he api)lied according to law, and in default of payment hefore the terniination of said period, further imprisonment for six months, Hahl, had, for uncertainty in requiring the fine to he paid to the magistrate personally instead of to the gaoler, litujina v. Neicton, 11 P. 1{. i)8 ; K. S. c. 157, s. 8; c. 176, s. 3. 813. — A conviction in this case for keeping a disorderly house, and house of ill-fame, was held had for award- ing, after the adjudication of a penalty hy tine and imprisonment, further imprisonment in default of sufficient distress, or of non-payment of fine ; and, Held, also, that this was not a mere formal defect within section 30 of 32-33 Vic. c. 32 (D). Held, also, that the efi'ect of section 28 was not to take away the writ of certiorari. Refiinn v. lUcluirdsoii, 11 P. R. 95. ; R. S. c. 17(), ss. 24, 22. See Exposure, Nos. 115, IIG, (t)ite. ''" 1 fm II fl 4a. War, Levying— 314. — The prisoner was convicted upon an indictmeu' under C. S. U. C. c. 98, containing three counts, each charging him as a citizen of the United States. The first count alleged that he entered Upper Canada with < >*•] OFFKNCKS. 121 he coii- '« " any )OHed, r of the n. The red the 1 to pay the sum ; to law, ation of ths, ine to he to the c. 157, isorderly I' award - ihie and fault of and, il defect s not to •liardson, intent to levy war against Her ^[ajesty ; the sacond that he was in arms within Upper Canada, with the same intent ; the third, that he committed an act of hostility therein, hy assaulting certain of Her ^lajesty's suhjects, with the same intent. The prisoner's own fitatemont, on which the crown rested, was that he was born in Ireland, and was a citizen of the United States. It was ohjected that the duty of allej^'iance attachinj^ from his birth continued, and he therefore was not shown to be a citizen of the United States, but Held, that thouj:;h liis duty as a subject remained, he mi<];ht become liable as a citizen of the United States by being naturalized, of which his own declara- tion was evidence, Held, also, upon the testimony set out in the case, that there was evidence against the prisoner of the acts charged, Held, that even if he carried no arms, on which the evidence was not uniform, yet being joined with and l)art of an armed body wl.uch had entered Upper Canada from the United States, and attacked the Canadian volunteers, he would be guilty of their acts of hostility and of their intent ; and that if he was there, to sanction with his presence as a clergyman, what the rest were doing, he was in arms as much as those who were actually armed. Reniiui v. McMahon, 20 Q. B. 105. ; R. S. c. 140, s. G. I M\ dictmei)' its, each es. The ida with 815. — In this case, the charge being the same as in the last, it was shown that the prisoner had declared himself to be an American citizen since his arrest, but a witness was called on his behalf who proved that he was born within the Queen's allegiance, IX 1 1 122 CRIMINAL DIGEST. ■ Jlcltl, tliat the ci-own niiK:l4M>liii;( to Support— 318. — On a trial for neglecting to provide for wife, Iluld, that the words in section 25, 82-33 Vict, c. 20, " so that the life of such apprentice or servant is endangered, or the health of such apprentice or servant has heen or is likely to he permanently injured " must be read as applying to the " wife, child, ward, lunatic or idiot," mentioned in the th'st part of the section, notwithstanding that in the repetition of the enumeration " apprentice or servant" are alone mentioned, and an indictment which omits such allega- tion is bad and will be quashed. Rcfiina v. Maker, 7 L. N. 82, Que. ; R. S. c. 1(32, s. 19. And in such cases the wife is a competent witness for the crown. lb. R. S. c. 174, s. 216 ; c. 162, s. 19. ;U9. — In an indictment under 32-33 Vict. c. 20, s. 25, it is not necessary to allege that by the refusal and neglect of the defendant to supply necessary food, etc., to his wife, her life had been endangered, or her health 124 CIllMINAL DIOKST. M pormanontly injured ; nor is it iiocofisary to ninko proof to that effect, llciiinti v. Scott, 7 L. N. 322 ; 28 L. C. J. 2()1, Quo. ; U. k c. 102, s. V.K 820. — The indictment need not allege tliat accused has the means and is al)le to jjrovide food and elotliinj;, nor that thone'^lect endang(a-s tlie life or aft'ects the health of the wife. licniiKt v. Smith, 2 L. N. 217, 1H7!». 321.— An indictment under 32-38 Vict. c. 20, s. 2"), alleged that S. was the wife of defendant, and was willing to live with him as such ; that it was defendant's duty to iirovide the necessary food, (dothing, and lodging for her 8ust(!nance ; and that he, on, etc., and from thence hitherto, unlawfully, wilfully, and without law- ful excuse, did refuse and neglect to provide the same, contrary to the statute, etc., Hehl, that the allegation that she was ready and willing to live with defendant was surplusage, and need not be proved ; but that it must be shewn that she was in need, and that defendant had the ability to supply her wants ; and as this did not sufficiently appear by the evidence a conviction was set aside. licflind V. X((smifh, 42 v^. B. 242. 822. — Hald, AuMouR, J., dissenting, that the evidence of a wife is inadmissible, c.i the prosecution of her husband for refusal to support her, under 32-33 Vict. c. 20, 8. 25. Under Consol. Stat. U. C. e. 112, any (piestion of law which may have arisen on the criminal trial, may be reserved for the consideration of the justices of either of Her Majesty's sup'^rior courts of common law. Qiuere, per Armour, J., having regard to the provi- sions of the Judicature Act, whether a reservation to li^i!' m nmko N. 322 : has the iii}^, nor „' healtli iillegfd lling to t's duty lod^in-,' id from out law- le same, idy uikI ,}:;e, and \vn that )ility to ticiently t aside. ice of a ushand c. 20, stion of il, may -ices of lou law. e provi- ition to OFFENCES. 125 the JuKticesof the Queen's Jiench Division of the Ilif^h Court of .Justice was authorized. Jictiiiiti v. JHhscII, 1 Ont. Pup. r>l I (,). 1^. ; K. S. e. 1()2, s. i!) ; c. 174, 8. 21(1. ;J2;{.— Under Wl-'M^ Vict. c. 20, s. 25, as amended hy 49 Vict. c. 51, s. 1, defeiidant was charnl 14 Q. L. R. 231 ; R. S. c. 174, s. 140. — It is not necessary that a bill submitted to a grand jury be signed hy the clerk of the crown, the signa- ture of the attorney prosecuting for the crown l>eing sufficient. Rccirna v. OueUctte, 7 R. L. 222, 1875. Jictliiia V. lief/iner, Ramsay's A. C. Re same powcn'H, the generftl precept to summon a jur) l)oinf,' issued by both before the asHizes. W'liclitn v. Ri'iihui, '28 Q. ]i. 2. 868. — By procbimation published (jh the li'th December, 18l)(), the count} of Tee! was separated from York from and after the 1st of .Iimuary, 18(57. On the '2!hd of November preeeilin^', th(( usual i)recept had been sent to the sherilV (^f the united counties for the winter assizes for York, to be hehl on \\\v. 10th January, 18()7, and the sheriff returned his \yA\\A to that precept, containin Can. Law Times 14. 885. — Where, after the retirement of the jury, new evidence was discovered which, if true, would establish the innocence of the prisoner, it was held that tlie jury could not be recalled for the purpose of hearing the new evidence, and that the only remedy was to dis- charge the jury at the instance of the crown, with the consent of the prisoner. Rirjina v. WijlUe, 3 L. N. 189, 1880. 38G. — The jury cannot be allowed to separate dui^ng the l»rogress of a trial for felony, and where such separa- tion takes place, it is a mistrial, and the court may order the party found guilty to be tried again as if no trial had been had. lU-giiia v. Derrick, 2 L. N. 214 ; 23 L. C. J. 239 ; R. S. c. 174, s. 169. 387. — The jury have a right, at the conclusion of the case, to recall any of the witnesses whose evidence was not wholly understood by them. Rvtjina v. Lanit're, 8 L. C. J. 281, Q. B. 1857. 388. — HchJ, that a statement made by the jury, previous to the giving of the verdict, that a newspaper had been handed to them, cannot be recorded on the register of the court, lituiiiui v. Notman, 4 L. C. L. J. 41, Q. B. 18G8. i5, 144 CRIMINAL DIGEST. VII.-TRIAL. 889. — Where on an indictment for manslaughter the grand jury had found " no hill," Held, that the crown had the right to have the prisoner arraigneS)u(rp, 5 P. 11. 185. 898.— The statute 32-88 Vict. c. 29, s. 11, enacts that " whenever it appears to the satisfaction of a judge that it if. expedient to the ends of justice that the trial of any person charged with any felony or misdemeanor should be held in some place other than that in which the offence is supposed to 'iiave been committed, or would otherwise be triable, may order that the trial shall be proceeded with in some other district or place." The power is purely discretionary, and should be used with great caution; but where the application is made on the part of Ibe accused, it will be sufficient to justify such discretion, that persons might be called on the jury whose opinions might be tainted with prejudice, and whom the prisoner could not challenge. The Qiwen V. Russell, Bamsay A. C. 199, 1878 ; H. S. c. 174, s. 102. 1;i t 148 CRIMINAL DIGEST. t |i ! f 81)i). — The Court of Qiioon's Bench in appeal has no juris- diction to order a chan^^e of venue. lic(iina v. Coruin^ 21 L. C. J. 101 ; 2 I.. N. ;U)1, 1H7!). 400. — Al'tidavits nsed in ai)i)li('ations on the crown side of the court must not he sworn hefore tlie prosecutor or his attorney. Rcijuni v. MhihIi. 7 Can. Law Times, 327, N. 13. " 401. — A motion to quash an indictment hecause tlie crown had refused to furnish the in'isoner with the particulars of the false pretences was refused, llaiina v. Bouclier 10 K. L. 183, 1880. 402. — The prisoner had heen tried on an indictment con- taining six coinits char^injj; him with shooting with intent to kill and murder, and had heen found guilty on the first count ; hut the verdict was afterwards set aside owing to a defect in that particular count. It was Held, that he could not he again tried on the same indictment, as all the counts referred to the same act of shooting. lie8. 413. — Remarks as to evidence of confessions, and an objec- tion that the whole statement was not given, llcijliia V. Jones, 28 Q. B. 416. 414. — Statements made by a prisoner to the parties who arrested him, he having been previously told on what charge be was arrested, are evidence. Rcgina v. Tufford, 8 C. P. 81. EVIDENCE. 151 415.— Three indictments were found against the prisoner, lately assistant postmaster at Swoetsburj,', and also a clerk in the store k(!pt in the same premises hy the post- master. One charge was of having stolen a registered letter, containing money ; another of having forgud in the l)Ook of record a signature puri)orting to he that of the person to whom the letter was addressiul ; and the third for emhezzlemcnt. On his trial it was sought to prove that ho acknowledged his guilt in a conversation with the postmaster and another. It appeared the conversation had hegun ahout the emhezzlement, and had continued to the suhject of the theft and forgery. At the outset of the conversation, the witness admitted having, in effect, intimated to the prisoner that he had hetter confess, Held, that evidence of the confession could not be received, lici/imi v. Wi/llic, 3 L. N. 13!), 18H0. 41tJ.— The prisoner was convicted of arson. Ilis admission or confession was received in evidence on the testimony of the constahle, who said that aftci' tlic; prisoner had been in a second time before the coroner, he stated that there was something more he could tell, where- upon the constable cautioned him not to say what was untrue. He then confessed the charge. Tiie con- stiible did not recollect any inducement being held out to him. T^liere was also evidence that on the third day of his incarceration he expressed a wish to the coroner to confess, on which the latter gave him the ordinary caution, that anything he said might be used against him, and not to say anything unless he wished. He then made a second statement, and after an absence of a few minutes returned and made a full confession, Held, that on these facts appearing, the statement I !".. 152 CUlMINAIi DKII'.HT. made to i\w coiistiildc wiis priind fncif rcccivablo, and that tlu! jiidi^c was well warranted in i('c(nvin<^ hh voluntary tlio cont'oHHion made to the coroner alter due warnin;^ by him. Rcniiin v. Fiiihlc, lo l!. P. 458. 417. -r[)on a trial for nuuvh-r it a|»i)(!ared that the deceased was found dead in his stable in the morning', lull(!(l by a j^un-shot wound. The i)risoner was a hired man in his house. His widow, the prineipal witness for the crown, testified tiiat slie and her husband went to bed l)y ten o'clocdv ; that afterwards her husbanil. b(>in<:; aroused by a noise in the stable, i^ot up and went out ; tliat she lieard th(! re[)ort of a gun ; that a few minutes after tlie prisoner tapped at the door, whi(di she opened ; that he said he had done it, and it was well done ; that she asked him if he luid killed her husband, and he said he had, and that it was for her sake he had done it ; that ho told her to keep quiet, and ^i\o him time to f^et into bed, which she did ; tlnit she waited a few minutes and then gave the alarm. callinjT the prisoner and another num who was sleeping in the house, who went out together and discovered the body. She also swore that the i)risoner had previously told lier he was phmning the murder, but that she did not tlien consider him in earnest. There was evidence, apart from her own, of her improper intimacy with the prisoner; and a true bill had been found against Inn- for the nnirder. The jury were told that there was no direct evidence corroborating her testimony ; tlie rub- requiring the evidence of an accomi)lice to be coniirmcd was ex[)lained to them, and they were directed tlnit before convicting they sliouKl i)e satisfied that the cir- cumstantial evidence relied upon by the crown did corroborate her testimou}'. They convicted; and ■questions were reserved under Consolidated Statutes of KVIDKNCK. 153 no lulc liat ir- ilid Ind of Upper Caiiiulii, cliiii)tor 112, wlu'ther the widow was an uccomplice, ami wlit'tlior there was sullicient evitlenco to submit to the jury, //('/(/, that whether slie was an nccompiieo or not, tiiero was no ground for disturhiu'^ the verdict. (Jiurrc, prr irAUiusoN, ('..[., whether tlie widow was an accessory alter tlie fuct.iunl whether, if so, she was such an accoiM))nc(! as to reiiuire coi'rohoration, accordiiii:; to the rule of practice. l^er MoiiiiisoN, .)., and Wilson, J., sh(! was an acces- sory after the fact. i\'c;iiii(t v. S)iiitli, l)H (}. J3. 218. 41H. — A coiiviction of a prisoner for horse-steahn}^, upon the uncorroi)orated (!videnc(! of an accomplice, was h(dd le<:;al, although the ju(ljj;o did not caution the jury as to the weij^ht to be attached to the evidence. Rqiiiia V. Ihrkniih, 8 C. P. 274. 419. — Scnihle, that a conviction on an indictment for con- spiracy to procure by frami the return of one F. to the Ie<^ishitive assembly upon the evidence of an accom- l)Iice not corroborated l)y other testimony, is not illegal ; but. Held, tiiat in this case such evidence was (dearly confirmed, and that the vcu'dict against all the defen- dants was warranted. Hcen pronounced against thcMU. R< .fiiia v. Tellicr, and Ri'fnna v. Pelleticr, 1 II. L. 5()5, Q. B. 1H70; R. S. c. 174, s. 214. 435. — And the value to be attached to their evidence in such cases is a matter for the decision of the jury. Ih. 430. — Four prisoners being tried together for robbery, one severed in his challenges from the other three, who were lirst tried, Held, that he was a competent w-itness on their behalf. Rcnina v. Jcrrett, et al, 22 Q. 13. 499 ; K. S. c. 174, s. 214. 437. — Where no evidence appears against one of several prisoners, he ought to be acquitted at the close of the prosecutor's ease. Qiuere, whether without such formal acquittal he may be called as a w'itness for his co prisoners. Hemble, not unless it appeared that he has been joined in order to exclude his testimony. It is in the discretion of the judge at the close of the prosecution to submit such prisoner's case separately to the jury ; but he is not bound to do so, and whether he has EVIDENCE. 150 rifrhtly exercised his discretion or not, cannot be reser- ved as a point of law, Held, that in this case (bein<]; an indictment for arson) it coidd not he said that there was no evidence against E. H., one of the prisoners ; and, ScuthJr, that under the circumstances lie could not he called as a witness for the others. licfi'ma v. lliiiiihlii, et nl, IG Q. B. ()17 ; R. S. c. 174, s. 211. •lo8. — The private prosecutor upon the trial of an nidict- ment for forcible entry and detainer cannot i)e exam- ined as a witness for the prosecution, if the court may order restitution, but such private prosecutor may be examined, if since such forcible entry and detainer the possession of the property has been restored to him. lieflina v. Hiigliaon, et al., 2 Rev.de Leg., 54, Q. S. 1847. Bee Forcible Entry ante. 439. — The evidence required by the Consolidated Statutes of Canada, chapter 94, section 2G, to corroborate the evidence of an interested witness, cannot be based upon something stated by such witness, lifniud v. Pcrrij, 1 L. C. L. J. GO, Q. B. 18G5 ; K. S. c. 174, s. 218. 440. — Where illegal evidence has been allowed to go to the jury under reserve of objections, it may be subse- quently ruled out by the judge in his charge, and the conviction is not invalidated thereby, if it do not appear that the jury were influenced by such illegal evidence, licgina v. Fniscr, 14 L. C. J. 215, Q. B. 1870. 441. — The prisoner was indicted for forgery in feloniously uttering a cheque signed by H, J. cV Co. on the (j)uebec Bank which he had altered from $400 to .*iil400. The evidence in support of the charge was that of J. who though a member of the firm when the checiue was :HI n TTFT 160 CRIMINAL DiaEHT. made liacl ceased to be sueli at the time of tlie trial, and who had been released hy his partner from all liability and disclaimed nny interest in the cheque. There was some evidence of the liabilities of the Ih'm. to creditors at the time of J's. withdrawal, Held, (KosK J., dissentinfj,) that J. was not a person interested or supposed to be interested, and that his evidence did not re(|uire corroboration, lu'iiiiia v. JldUcniKdi, 8 Can. Law Times 28(5, Out ; It. S. C. c. 174, s. 218. 442. — The prisoner was a trader in Toronto from whom one E. Fenwick pnrchased goods on credit in 1884 to the amount of $03. He discounted in the Central Bank a note for $130, dated August, 1887, purporting to be signed by E. Fenwick, This note was alleged to be a forgery, and at the trial E. F. denied making the note, and her son corroborated her denial, and swore it was not her signature, which he well knew. An agreement containing an authority to prisoner to siga notes with her name was believed to be genuine by the son, but the mother being recalled denied having signed the agreement. The court thought that as under the agreement prisoner had authority to sign E. F's name, and as her denial of its genuineness was not corroborated there was no case for the jury. lini'uKi V. Hnmo, 8 Can. Law Times, 202, Out. ; E. S. c. 174, s. 218. 443. — On a trial for murder, where it was sought to make proof of the statements of the deceased. Held, that in order to render the proof of a declara- tion admissible as a dying declaration, there must be positive proof that the person who made it was at the time under the impression of almost immediate dis- EVfDENCE. Ifil Holiition, and entertained no hope of recover}'. Repina V. Peltier, 4 L. C. E. 8, Q. B. 1853 ; 11. S. c. 174, s. 220. 444. — Vag:ie and f^eneral expressions, such as " 1 will dio of it," " I will not recover, " " it is all over with me," are insuthcient to allow proof of them, as of the declaration of a dyinjj; person. Ih. 445. — The prisoners were charjjjed with the murder of one B., caused hy attemptin<:c, hy the use of an instrument, to procure abortion. The deceased died on the 28th December, 1874. On the 24th she made a statement commencing : " I am very ill, I have no hope what- ever of recovery. I expect to die." She then nar- rated the facts, and added : " If I die in this sickness I believe it will have been caused by the operations performed on me by Dr. Spurham, at the instiga- tion of William Greaves. 1 make these statements in all truth, with the fear of God before my eyes, for I lirmly believe that I am dying." On the 2Gth she was again examined, and the previous statement read to her. She confirmed its truth in every resj^cct, and added that she then felt she was in the presence of God, and liad no hope of recovery of any kind at the time ; and Iter attention being called to the expres- sion " If I die, " she said, " I had no doubt whatever that I was d}ing and I ledt that I was dying and did not by the form of the expression mean to doubt in any way that 1 was dying," etc.. Held, that both statements were admissible ; that the mere use of the words, " If I die " would not p' >i\e defeat the emphatic declaration of abandonment of all hope made on the same occasion ; and that the second declaration was receivable in order to explain the fast. Rcijina v. Sparlta)!! and Greircs, C. P., E, T. 1875; li. S. c. 174, H. 2H). F.e.i). 11 (f 162 ClUMINAI, DKJKST. 446. — On an indiftiueiit for nianslaughtor it appoarod thai deceased died about iiiidiiiglit, December 17th, IVom the effect of severe bruises alleged to have been caused by the prisoner, her husband, striking her with a h'ghted coal oil lamp. Immediately after receiving the injuries, wliicli was between eight and nine in the even- ing of the 15th J)<^ceml)er, she said to the prisoner and to a female relative tliat she was (lying. Four physi- cians, who saw her almost at once, declared that there was no hop(> of recovery. One of tliem who liad remained with her till three a. m., on the 17tli. returncMl in the forenoon of that day. He then tol.i lier that she would die, and asked her if slie was afraid to die ; she said " No," and asked him if she was dying then ; he answered, " Yes, you are," and slip r(!plied, " G(nl hel]) me." He said from the manner of her answering he believed she thought she was dying. She then made the statement which was put in evidence. 'The doctor asked her how she had caughl lire ; she said, *' Arthur " (the prisoner) "knocked me down witli the lamp." He then asked if the prisoner had threatened her before he did it, and she said " Yes." She died about twelve hours after this, from the effect of her injuries. The parish clergyman who was with h(!r from six to nine; o'clock on the morning of the 17th, said he addressed her as a woman whom he tlioughi was dying, and that she understood it in that way : that lie recommended her to trust in Christ as her only hope, and she said, " Yes, I look to him," Held, that this statement was admissible as a, dying declaration, and that it made no difference that the second answer was given to a leading ques- tion. Reginav. Smith, '23 C. P. 312; R. S. c. 174, s. 220. KVIOKNCK. 1()}J told f she 1(1 she tinner > was put in lauglit d mo, isonev Yes.- effect is with 17th. ou<:;ht way : s her as a 3venc(' ques- 17i. •I 17. Whonovor a joint participation in an onterpriso ia slicwn, any act done in furtherance of the, common (U'sif^^n is (jvidencf! njj;ainKt all who were at any tinw conccu'iu'd in it. In this cabe, the prisoner heing charged with hiini:; in arms in Upper Canada with int(!nt to levy war agninst the (^)u(H'n, (svidence was admitted against the prisoner of an engagement between the body of men with wht)in Im had been and the Canadian volunteers, altliough the same tooi\ place several hours after his arrest, Held, that the cvidiMuu' hail becui |)r()[)erly received, as shewing to some extent that the engjigement in (|uestion had been (•ont«an])l!ited by the parties whilo the })risoner was with theui before iiis ari'est. lir(jina V. Slanit, 17 C. V.'lO'u 44H. — The prisoner, C., was indicti'd for aiding inid abetting one M. in ii, murrhn- of which M. was convicted. It appeared that about six m the evening the deceased was with it. and his wife on the i'i\ei' banl^, standing near a piK; of wood. She saw M. standing behind the l)ile, who on deceased going up to him struck deceased with !!, sti(dv, of whi(di he died ; d( ceased ran, when two other men s))ran^' out and followed him, but in a few seconds two of them retiinu-d and assaulted her and her husband. She (*(udd not identify the prisoner. Two other witnesses saw tlu; blow sl;ruck and identified M. ; and one witness, 11., swort; that about six on tlat evening deceased left his of'tice with II. and his wife, and that about twenty minutes after he saw the prisoner, with M. an(i anotlier, ,l!;o into the vacant lot where the wood pil<^ was, M. liaviug a bti(dv in bis hand, and tliat he heard M. say to the others, " Let us go for him. It wae also proved by otliers thai the three wc^re tagethei- Mi / ^ ^ 164 CllIMINAI, niOKHT. before tlio aflVay, and in a saloon t()Mi;^lit l»e imposed. The first part of tlie indictment only was read at tlie arraifjnment, and no allusion was luiule to the second clause. The prisoner gave evidence of gootl (rliaracter. The crown j^avc; some general evidence in r«'hiittal, and tiien tendered a certificate to prove a prior conviction, and read the second clause of tht; indictment, it was held that such evidence was not properly admissible ; general reputation only could he attacked, as the proof of a prior conviction ati'ected the sentence, and not the ver- dict. Hef/ina v, Tr'uimuiic, H (^an. Law Tinus, (JH ; H. S. c. 174, s. \m. 454. -The prisoner's witness having stated that death was caused hy two blows from a stick of certain dimen- sions, //r/s found on the body could not have been so occasioned, lieiiina v. (i,t. 188:i ; II. S. c. 174, s. 220. 4(jl. — Evidence is properly receivable that a witness at n coroner's inquest had made at other times a statement inconsistent witli iiis testimony. The improper recep- tion of evidence is i:o ground for vertiornri to bring up the inquisition, liv/ina v. Sanderson, 8 Can. Law Times, 115 ; 15 0. 11. lOG ; li. S. c. 17-1, s. 285. 4()2. — A grand juror may be called to prove that (evidence given by a witness on the trial differs from that given by him before the grand jury. licgina v. Gillis, (i Can. Law Times, 208. P. E. 1. 468. — On a trial for murder, the ci"own liaving made out a prima facie case by circumstantial evidence, the prisoner's daughter, a girl of fourteen, was called on liis behalf, and swore that she herself killed the de- ceased without the prisoner's knowledge, and under circumstances detailed, which wou'd probably reduce her guilt to manslaughter, Held, that the judge was not bounce to tell the jury that they must believe this witness in the absence of testimony to show her unworthy of credit, but that he was right in leaving the credibility of her story to them : and if from her numner he derived the impression that she was under some undue influence, it was not 170 CKIMINAI. lUOKHT. improper to call their attention to it in liis charge. neilinn V. .hnnm. 2H Q. H. 110. 404. -A writ of hahatH covjtiinnd It'stifiidHihnn may bo issneil to tluf warden of the provinciiil i)enitenticiry to hring a convict for life before a court of oyer and terminer ami t^eiieral <^aol delivery, to <»ive testimony on behalf of the crown in a case of murder. Rifjiua v. Totcnscml, :i !.. .1. 181; II. S. c. 174. s. 2l;{. IX.- RIGHT TO BEGIN. 465. —On an api)eal from a decision of the police magistrate to the Court of (Queen's Bench, the cpiestion was raised as to who should bcf^in, the respondent contnn\. Ti-iiiphiif. 12 H. li. ,. ()<»(•), Q. B. 1881 : I!. S. c. 174, s. 171). 4G(>. — In a. case of public prosecution for felony instituted by the crown, the law otticers of the crown and those who represent tlKan are in strictness entitled to reply, although no evidence is adduced on the part of the prisoner. I{>'. m s^i CKIMINAI. niOKH'l 171 X. CHARGE OF JUDGE. 4f)7.- The rule is llieHanu' in criniiiml as in civil casoK, at any rate wIhtc the prisoner is defended hy eounsel, that any ohjection to the ehar^^'e of the {(rcKidinij; jndse. either for non-(Hrection or misdirection, must he taken at i\w trial, and if not tiien taken, it cjinnot he after- \vard8 raised, especially where the evidence fully sustains the verdict. Ilniimi v. A'u/,. 1(5 ('. \\ }}79, U)H.- As to certain threats allefred to have been uttered hy the prisoner, Itihl, that they were clearly admissihle as evidence, and if undue prominence was j^iven to them in the char<^e. the attention of the learned .iudfj;e sliould have ixM'n called to it l)y tlu- prisoner's counsel. Ih. lietjiun v. (hi!i XV. APPEAL. 47H. Hrld, tliat tbc proHecutor of a comi)laint cannot appeal from tbe order of a niii«j;istrate disunssinfi; tbe eompbiint ; as by Ik. S. (). c. 74, .s. 4, tlu* practice of ajipeabu}; in hucIi a case is assimilated to tbat undei- Doni. Stat. 'Mi Vict. c. *27. wbicb conlini's tbe rij;bt of api)eal to tbe defendant. A probibition was tberefon.- oidered, l)ut wilbout costs, as tbe objection to tbe jurisdiction bad not bt!en taken in tbo court below. In re Murphif and ('orn'mh, 8 I*. 11. 420 ; II. S. c 178, s. 77. 471). Wbere tbe statute enacts tbat no appeal sball be l)rou^iit after tbirty days from tbe; conviction, it was lield tbat tbe <;ivin|^ of tbe notice of appeai and tbr furnisbin}; of tbe security witbin tbe delay saiislied tb(^ law, and tbat it was not necesbary tbat appellant sbould bring bis appeal to a bearinjj; witbin tbirty days. Huvtn- v. (iii/litlis, 7 P. K. HO, not followed. Jiegiuit V. McGaulcy, 7 Can. Law Times, 395 ; l{. S. c. 43, 8. 108. I'ltlMINAIi niORHT. 175 XVI NEW TRIAL. 4H0. — No nv\\ tiitil ciin hv ;^'raiitct(,). I'.. 1H7;{. 1 wa« the died lant liirty kved. {. S. 483. Tlu' Court of Queen's Bench has power to <^ranl a new trial in criminal cases onlv when sittin«i; as a court of error and appeal. Hciirna v. DoikjuU, (5 W. L. 578, Q. B. 1874. 484 — Where no new trial is asked for ii; a reserved case, none wili be ordered. Reifinn v. Ilinclcs, 2 L. N. 422 : 24 L. C. J. IK), 187U ; 11. S. c. 174, s. 267. 485. —Where, on a reserved case, the conviction was set aside, and the question had been reserved whether a '^1 il 176 CHIMINAL DIOKST. new trial hIioiiKI \n\ liiul, a lunv trial was ordorctl in a vane of" niisfiiMiicanor inidrr ('. S. L. C. c. 77, 8. 68, hH. 2. The aiulliiirity to niaki! hucIi order as justice r('(Hiin!H iueliidcs tlir ri^'ht to order a new trial when justico rcMiuires it. liruiuu v. Jiuiti, 211 L. C. J. 327, IH77. See lieijina v. LnlihrrW, I 8. C. U. 117, 1877. 486. - Where after jnd<^iiient nuiiiitainiiif^ a writ of error and Hettin<{ asid(! a convietion for irregularities in the indietnient, application was made on the part of the crown that the prisoiu'r ho rennmded, the court said this was nnitter within it.s discretion. If the indict- ment had hecn (juashed on dennu'rer, there was no lack of prcc('d(Mits to justify the court in orderin<^ a fresh indictniiMit to he laid, if it were satisfied that a ciinio had heeii committed. Jt was ([iiite possihie if this were a ciiso of nnu'der, and a failure of justice mi;^ht result, that the court would f^ive time for a (,». 15. »H. 18'.>. — Where points of law we're reserved under tiie Act, and the prisoner, hesides relying upon them, moved for a new trial, the eourt refused to grant it, though the rvi(l(!nee was slight Uiiinin \. Ilnuihly, l(i Q. 15. «;i7. l!K>. Where, after eonvietion for a capital otVence, tin- proceedings were discovered tf) Inive been illegal, there having been no associate judge sitting in court during the trial, on motion on behalf of the crown (tlu prisoner ' t moving in any way), the indictment and conviction, with the prisoner, were brought up on ri'itlitniri and liahcdH mrpiis, and an order made setting asiih' all such proce»'dingw. and n iminding the prisoner to (U.^tody with a view to a new trial. li<';iiu. -t'.KJ. — On motion tor a new trial by a prisoner convicted of murdei <>n circumstantial evidence only, MouKisoN, .J., who tried the case, expressed himself as not dissatisfied with the \erdict : and, DuAi'XU, (".•!., having reviewed th«; evidence at length, came to the conclusion that there was enougii to go to the jury, and that their tinding ni)on it could not be declared wrong. |[A say whether there was evidence to goto the jury, not to express anj' opinion as to theii- verdict founded upon it. A new trial was therefore refused : and the court declined to grant leave to appeal. Rc'iiiifi \. (rrrm- irood, 'll\ (}. J). 25"). -li)4. — 'I'he prisoner having been indicted with two othei's ac(piitted, was convicted of the murder of one H., whose body was found in a field adjoining the railway, on ^[onday, the 10th April, appar(>ntly about three days after ih^ath, which had cleai'ly been caused by violence. One M., the chief witness foi* the crown. swore that on the Friday night previously, he heard cries in this ti(dd, a (juarter of a mile from his house. and that he saw three persons walk (piickly past his house from that direction, whom he recognized as the prisoner and two of his sons. He also stated that on NKW TUIAf,. 170 the I'ollowinji; moniinj^ he saw the prisoner \V!ilkin<,' along the railway and stopping mar where the hody \\",\H afterwards I'onnd, his manner heing strange and excited. At the coroner's inquest. lieKl si\ months l)efore, this witness had declared himselt' iinal)le to identify the ])ersons seen hy him, and had nut men- tioned seeing the prisoner on Saturday. On motion for a new trial, on the ground, among others, of surprise at these discre[>ancies, the court refused to iutei'fere. Itcii'nui \. I lumillnii, ,1 nl., 1,') ('. I'. I) 10. l!(5. — On a reserved case from a conviction for perjury, Held, that where the alleged perjury was committed in an isHU(! in the circuit court in which it was prt)Ved a plea had heeii tiled, hut the recoi'd produced and proved in the criminal court did not contain such plea. tlier<' was no ground for new ti'ial. Ri. 4H. 4!)7. — A new trial may he ordered on a reserved case in misdemeanors where it appears to the ccmrt on the evidence that an injustice may have heen done to the delendant. Il>'fiiua v. Jlnss, M. I.. K. 1 (,). B. ±2,7. 498.— Remarks and review ot authorities, as to granting new trials upon the e\itlence; Ili''iiiiti v. Clnililix, \A ('. V. 8-2: l!,',ii,i,i V. MrKlrnii, 15 ('. V. J It) : lininia v. Ifi i^ 'H 180 CRIMINAL DIGEST, fi Firk, 1() C. p. 371) ; lienina v. Hamilton, IG C. V. 'MO: Jiriiina V. Scdtlons, 1(5 C. I*. 381) ; Uccfiud v. Slavins, 17 C. P. 205. VM). — The court will not receive affidavits as ground for such applications. See lienina v. Crazier, 17 Q. B. 275; lieijina v. Beckwith, 8 C. P. 274; Ref/ina \. Fitzijernlil, 20 Q. B. 'AiS ; Retina v. Chuhhs, 14 C. P. 32. 500. — The court, on the return of the rule, refused to receive new aftidavits stating that the deceased had been seen alive after the date of the alleged murder, and thus setting up an entirely new case. Re;iin(i v. Hamilton, Ifi C. P. 340. 501. — Tlie court was not authorized to grant a new trial on the discovery of new evidence, or for the misconduct of the jury. Re1<1KST. XVIII. ERROR. oOT. -Oil the heaving of a writ ol* error from the crown bide of the court, the jndfi^e who sat in the proeeedin}j;s under examination for error, is diH(iuahfie(l. C. S. L. V. c. 09, ss. 4, 50, ()7. The Queen v. Doiitiull, ct (tl., Kanisay, A.C., 200 : It. S. c. 17-4. s. 'HSr,. 50H. — The proper ])roeeeding to reverse a judj^inent of the court of quarter sessions is hy writ of error, and not hy JuthcdH forpiiH. Heci'iutt v. Powell, 21 Q. 1). 2ir). .")0*). — Error hes only foi' matter of record, so the ehar^^e of the judge will not he ground of error, as it is not of record. /V/o// v. 77/<' l,ht,;i,, 22 L. C. J. 13H. 510. — Erroi', as distinguished from ap[)eal, will lie in a criminal case from the court of error and appeal to the Queen's Bench, and the writ of error may he as nearly as i)0ssil)le in the form of a writ of appeal given hy the orders of the court })ublished in 1850. Refiimi V. ]rhehiN, 28 (,). B. 108, Ont. 511.— Whether the police court is a court of justice within 82-38 Vict. c. 21, s. 18, or not, is a question of law which may he reserved hy the judge at the trial, under the Consolidated Statutes of Upper Canada, chapter 112, section 1, and where it does not appear by the record in error that the judge refused to reserve such question, it cannot be considered upon a writ of error. Ih. 512. — Where it was alleged on a writ of error that in the course of the trial, which was for murder, and in which the prisoner was found guilty, a medical witness was KlJItOU. 183 ordered to make an analysis for the information of the juvv, and tiiat he had done so and made a report, hut that the report so made was not phiced hefore the jury, iXH it oii<4lit to have hcen, and that therei)y the prisoner was dei)rived of the iidvantajj;e of important evidence in liis favour, Held, -iiH the r('i)ort could not have hecn sub- mitted to the jury except as part of the evidence, and as neither the evidence nor the ruling of the judge in relation to it could he brought under the consideration of the couit i)y means of a wi-it of error, that the plain- tit!" in error had no right to have the record anu'uded, so as to place before the court the said report, and the i'Utries in the register of the court below resi)ecting it : noi- could the plaintitt" cause the record to be amended so as to show whether the judge who presided at the trial wrote the notes or caused them to be written by another person, nor so as to show what i)recautions were taken for the safe-keeping of the jury while deliberating u[)on their verdict. Dniud v. Thr (Jmcii. 14 L. C. H. 52, (,). B. 18(58. 518. — 'Ihe Court of (^)ueen's Bench in appeal cannot grant a writ of error without the fiat of the Attorney-fieneral. Xotman v. I^t'niini, 18 J.. ('. J. 258, Q. B. 1868. 514. — 'I'lie issue of a writ of error is illegal where it is allowed and bigned by the crown prosecutor in the name of the Attorney-Cieneral, instead of by the Attor- ney-General hiuiself. Diuilop v. Rtui'uia, 11 L. C. •). 271, and 8 L. C. L. J. 57, (^ B. 181)7. -■)15. — On the hearing of a writ of ei'ror, the plaintifif in error should be personally before the court, and if he is confined, should be brought up on habeas rorpus. Launnit v. lu'iiimi, L i). B. R. 802. I m 184 CRIMINAL DIGEST. XIX. RESERVED CASE. liiii '>\i\. — The trial Ik not tcnninati'd until sentence i.s ren- dered, and " a (|uestion wliicdj lias arisen at the trial " does not necessarily mean a (jiiestion raised hy tJic defence, but one which took its rise at the ti'itil. Itetjinav. Bain, 23 L. C. J. 327, 1877 ; licnina v, lu-me, 3 Q. L. K. 211). 1877 ; K. S. e. 174, s. 259. 517. — On the trial of a prisoner who had been extradited from the United States for felony, lleUJ, that no question of law can be reserved and heard until after the conviction. Rcifhiaw Purton, 2L. C.L. J. 102, Q. B. 1806. r)18. — A reserved case cannot be had where there has been neither trial nor conviction ; and the (juestion whether the crown could enter a nolle prosequi before trial can- not alone be made the subject of such ease, licfiiiui v. Lalannc, 3 L. N. 1(1, 187J). 519. — Prisoner neer not be present at the hearing of a reserved case, llecjiuti v. Gluaa, 21 L. C. J. 245, 1877. 520. — During the argument a reserved case may be amended at the defendant's request by adding the evidence taken at the trial. litujina v. llosti, M. L. R. 1 Q. B. 227. 521. — Where a case reserved for the consideration of the full bench does not contain a question which it is essential to decide in connection therewith, it must be sent back for am(!n : e. 17<), s. 8;{. o*24. — -A warrant was issued hy a magistrate for the appre- hension of the defendant, who was brought before another magistrate thereon, convicted and fined. Sui>- sequently the magistrate who had issued the warrant caused the defendant to he sunnnoned before him for the same oftence, and again convicted and lined him. after refusing to receivi' ev'dence of the prior con- viction. The court quashed the second conviction, with costs. Even assuming that the first conviction was void by reason of the defendant having been brought befor(' a magistrate other than the one who issued tlie warrant, his appearance and pleading thereto amounted to a waiver, and at any rate the magistrate who con- victed the second time could not take advantage tliereof. lii'dina V. Bernard, 4 Ont. Eep. (508, Q. B. 525. — The defendant sold to C, amongst other things, a horse-power and belt, part of his stock in the tradi- of :ipi! n i .^^ 1 1 li III ii ' li 1H8 nilMINAIi DKJEKT. a biitclier, in which he also sold a luilf interest to C. Tlie horst'-powcr had been hired from one M., and at the time of the Hale, the time of hiring had not expired. At its expiry, M. demanihid it, and C. ehiiined tliat he had purchased it from (hd'enduiit. The (lefen(hint then emphned a man to take it out of tin; premises where it wns kt^pt, and dehver it to M., which he did, Tlie defendant was summarily tri(ul before a police magistrate and convicted of an olTonce aj^Miinst 32-;j:i Vict. c. 21, s. 110 (D). Hihl, that the conviction was hud, there beinj,' no olfcnce a}][ainst that section, and no jurisdiction in tin police magistrate to try summarily ; and that it was bad also in not showing the time and place of tlie commission of the offence. Uemarks upon the improper use of the criminal law in aid of civil rights. The conviction was quashed with costs. Rcjjind v. Youikj, 4 Ont. Rep. 400, Q. B. : 4 Can. Law Times, 288. VIW. — The 82-88 Vict, j 82, s. 17, empowers the magis- trate to imprison any one convicted of keeping a disorderly house " with or without hard labour for any period not exceeding six months, or may condemn him to pay a tine not exceeding, with the costs in th(^ case, $100, or to both line and imprisonment, not exceeding the said period and sum.'" The magistrate sentenced the petitioner to the full amount of >i>100 and to imprisonment "with hard labour," The court dis- tinguished the case from that of E.rp. WilUniiis, as in this case the variation was not depending upon an amendment, and it could not be presumed here that the legislature meant either imprisonment with hard labour, or witliout it. PJ.rp. Soincrs, ilamsay A. C. 185. CONVKTIONa. 189 r>'27. — Wlioroa person is coiidcniiicd Itya inagiHtrato acting iindir the 32-8li Vict. e. H2, hh. 2, 5), for an a}j;{^ravated asHault, to pay a fine of $100 and to six months' iniprlHonnicnt with hard hihom*, there is exeess of jurisdiction, inasnnich as the statute only authorizes the douhle penalty of Ihie and itnjjrisojnncnt, which does not include hard labour ; and tlu; prisoner was dihchar<;ed on luihcdn corjuts. E,t partf liitnis, liam- sav A. C. 184. 528. — Where a prisoner has been condemned to a punish- ment greater than the law allows by a maj^'istrate or other inferior tribunal, he will be discharged on iiabcus corpuH. E.v parti' Iii(riiH, Uamsay A. C. 188. 52!>. — A judgment for too little is as bad as a judgment for too much, and so a condemnation to pay .SlOO and costs, when the statute creating the offiMice imposes a penalty of $200 and costs, is l)ad. Hc(iiua v. JhiiiJif, 1 L. J., N. S. 240. 580. — A conviction for keeping a house of ill fame was held bad on iKihcai^ corpus, because of its uncertainty in not naming a place where the offence was coniui. "d, and becaus(^ it did not contain an adjudication of for- feiture of the line imposed. The meaning of 82-8J5 Vict. c. 31, s. 7, (Rev. Stat. c. 170. s. 11), is that the amount of the costs in the case shall be deducted from $100, and that the balance shall be the utmost limit of the fine, and a condemnation to pay $100 without costs is illegal. lieH!'), or by botli hucIi tine iiiid imprison- ment. My im amcntlinR Act (}J7 Vict. c. IH), it is providcid tlmt " tlio term for \vlii<-li any otVondor niiiy Ik; HcntciKM'd to iiMprisoinnent, under the Act of IHCt'J. is licroby extended to six months. " Tin* niiif^iHtriUe sentenced petitioner ttiitf. 1 I.. N. 'i'lJi, (}. \\. iHSl. Sec Unihje V. Thr ijiweii, V. Council, IHH") : 'IH \. .('..]. :. I. '»:{:{.— Ci'itiiinh iinil precision me rc(iuiic(l in the stutciiu'tit ot an olYencc under a )>enal statute, and an inlorniii tion ciuir^iu},' sivcral otlences ai tlie disjunctive i> had : and a conviction in sucli a case will be ((uashcd where it setH tbrtli that the defendant was guilty of nil the otl'cnccs conjunctively ; and the C(mitt('d fo the jurisdiction of a Canadian magistrate, and hiid heen condemned to eight months' imprisonmi'Ul, and afterwards applied hy halx-iOi fovjtuH for liheratinn, lli'U, that even the consent of the prisoner did not give jurisdiction to the nuigiptrate wh 'e none othrr- wise existtid. Hctiimi v. Ifcln-rt, ~> II. L. 1'24, S. ' IH74. r)37.— Where a statute empowers two justices to convict, a conviction by one is void, hi rr Croir, 1 L. J. N. S. iiO'2. See also (h-uhiiin v. McArtliur, 25 (). B. 17H. Ml f^f* 11)2 CRIMINAL UlftEST. 538. — On motion to quash a conviction by two justices of the peace of the county of Norfolk for an assault, Held, that stating the offence to have been com- mitted at defendant's place in the township of Towns- end was sufficient, for C. S. U. C. c. 8, s. 1, s-s. 87, shows that township to be within the county. Rcgina V. Shall- , 23 Q. B. 016. 539. — Under the statute for repressing riots at elections, no power is given to magistrates to convict summarily : the offenders must be tried by a jury. Feniuson v. Adams, ct al, 5 Q. B. 194. 540. — Where the conviction does not set forth such facts as are necessary to enable the court to see whether there has been a violation of the law it will be set aside. Ev ixxrte Buss, S. C. Montreal, 1877. 541. — The minute of a conviction should state the adjudi- cation of the justices both as to the amount of the fine and the mode of enforcing it, whether by distress or imprisonment, so as to be a complete judgment in sub- stance. After the adjudication the justices have no power to vary or add to their judgment. Regina V. Perley, G Can. Law Times, 546, N. B. ; E. S. c. 178, s. 58. 542. — A statute declared unlawful certain acts committed by any person not legally empowered without the owner's permission. A conviction stating the acts done, but not negativing the power and permission was Held, bad. Regina v. Morgan, 8 Can. Law Times, 29 Man. 518. — Where the conviction describes the presiding magis- trate as the police magistrate of the district of Mont- w CONVICTIONS. 193 treal, where;is he was a justice of the peace acting in virtue of 33 Vict. c. IJ, Que., the defendant was discharged. Ex parte Sciu'cal, 3 L. N. 207. 544. — In a conviction for assault it was held unnecessary to show on the face of the conviction that conii)lainant l)raye(l tlie magistrates to proceed summarily, lor the form allowed hy the Consolidated Statutes of Canada, chapter 103, section 50, was followed ; and if there was no such re(iuest, and tlierefore no jurisdiction, it should have heen .jhown l>y affidavit, IJelil, also, that it was no ohjection that the assault was not alleged to he unlawful, llqiina v. Sluiic, 23 Q. B. 616. See also, ill re Siritzcr, et ah, 9 L. J. 266. Baylcy q. t. V. Curtis, 15 C. P. 360. 545. — A request to proceed summarily under the Summary Jurisdiction Act need not he in writing. A conviction awarding fine and costs, and in default, imprisonment, was held good, and that a distress warrant to levy the tine need not to have heen first ordered to issue. lieriiiia V. *S'////7//, 18 L. J. N. S. 10. 546. — The fact that the magistrate was the father of the complainant suftices to quash the conviction. Rcgina V. Ldiififord, 8 Can. Law Times, 110, Ont. 547. — The court will not presume that Sault St. Louis was a " land set apart or reserved for Indians," unless it be set forth in the complaint, and so where a party was convicted before the police magistrate for having, " within the space of six months from tlie time that the offence herein mentioned was committed, to wit, on the Utli day of September, in the year aforesaid, at Sault St. Louis aforesaid, in the district aforesaid, in F.C.D. 13 ■'1 II 194 CRIMINAL DIGKST. the province of Quebec, and Dominion of Canada, un- lawfully and knowiuf^ly kept a house wherein intoxi- cating liquor, to wit, whiskey, was sold contrary to the statute," etc., the prisoner was discharged. Ex parte Assonkdlisson. — Ramsay A. C. 183. 548. — A. magistrate, in order to have a good justification under a conviction and warrant, must give in evidence a conviction not illegal on the face of it, and a warrant of distress supported b}' that conviction, and not on the face of it an illegal warrant. Eastman v. xieid, 6 Q. B. Gil. 549. — On application to quash a conviction, facts not appearing in the conviction will not be noticed by the court for the purpose of impeaching it on any ground other than want of jurisdiction. The court has no power to either review the sessions in a matter within their jurisdiction, or to compel them by mandamus to re-hear an appeal, liiufina v. GraiiKjer, 18 L. J. N. S.i 46 Q. B. 190. 550. — Justices of the peace out of session have no jurisdic- tion to try misdemeanors in a summary manner, except on special statutory authority, and it was Hell, therefore, that a conviction by two justices of the peace, under 46 Vict. c. 15 (D), for assisting in the distilling of spirits contrary to that Act, must be quashed. Hefiina v. Carter, 5 Ont. Hep. 651 Q. B. ; 4 Can. Law Times, 339. 551. — Imprisonment in case of immediate non-payment of a fine imposed under section 90 of the Indian Act, 1880, cannot be adjudged wbere the offence is selling liquor to Indians on board of a vessel. In this case the conviction must follow the form I. i., 32-33 Vict. CONVICTIONS. 195 c. 31 (llev. Stat. c. 178, form J. i.), and award a distress in default of payment of the fine. The right of certioruri is not taken away by section 97 of the Act where the justice exceeds his jurisdiction. Kx parte Goodiue, 7 Can. Law Times, 22, N. B., R. S. c. 43, ss. 95, 108. 552. — A conviction by two justices for taking certain timber feloniously or unlawfully. Held, bad, for it should not have been in the alter- native ; if the taking was unlawful only, not felonious, it should have shown how unlawful ; and also that the offence came under some statute which gave the justices power to convict. ltei (Uscharo;e(l, but on the last <];roun(l only, llcninn v. Ycomdna, (5 P. R. i\i\. See Ri'jiiihi v. Miinroc, '2i(J. B. 11. 558. — A commitment settinj:^ forth a conviction that the defendant unlawfully did commit an a^^'ijjravated assault, omitting the word maliciously, sut'iii'es. A typogra[)liieal error in the date of the commitment is not fatal where the date of sentence is apparent from the commitment and the record. Ex parte McIiiIohIi, 5 L. N. 4. 559. — A conviction for keeping a house of ill-fame on the lltli of October, and on other days and times before that day, lldd, sufficiently certain as to the time. The infor- mation described the parties as of the township of East Whitby, and had "County of Ontario " in the margin. It charged thtit they kept a house of ill-fame, but did not expressly allege that they did so in that towmship or county. The evidence, however, showed that the place at which such house was kept was in East Whitby, in which the justices had jurisiliction, llchJ, sulHeient. A rrrtioniri to remove the convic- tion was therefore refused. Rcfjina v. WilUains, ct id., 37 Q. 13. 540. 500. — The name of the inforaiant or complainant musk in some form or other appear on the face of a conviction. /// re Ilniii'.'i^ij, ct al., 8 L. J. 299. 561. — Where a ftU'm of conviction is not sanctioned by any statute, it must be legal according to the principles of the common law ; and in that case a conviction which does not express that the party had been summoned, 11 mw MS 198 CUIMINAL DIGEST. nor that he appoared, nor that the evidence was given in his presence, cannot he supported. Moore v. Jarron, 1) Q, B. 233. 662. — As to certain objections suggested to a conviction, it was held a sufficient answer that the conviction followed the form prescribed by the Act, Consolidated Statutes of Canada, chapter 103, which was intended as a guide to magistrates, and to prevent failure of justice from trivial objections. Raul v. McWhiiinie, Hal., 27 Q. B.28!). 663. — The charge in a conviction must be certain, and so stated as to be pleadable in the event of a second prosecution for the same offence. R'ljina v. Hogtjard, 30 Q. B. 152. 564. — A conviction under a by-law must show the by-law, that the court may judge of its sufficiency. Reyina v. Ross, M. T. 3 Vict., Ont 565 — And it must show by what municipality the by-law was passed. Rcgina v. Oslci', 32 Q. B. 324. 5W). — QiKere, whether it is essential to state the date or title of the by-law. lb. 567 -Upon conviction under the Quebec License Act the magistrate may condemn the defendant to pay the; costs of the warrant of commitment and of his con- veyance to jail, and may fix the amount of such costs. Kx parte Jones, 1 Q. B. E. 100. 568. — On motion to discharge prisoner on Jiaheas corpus on conviction before a police magistrate, the conviction charged that the prisoner did " unlawi'uliy and malici- ously cut and wound one Mary Kelly, with intent then and there to do her grievous bodily harm," CONVICTIONS. 199 Jleld, that the addition of the words, " with intent to do grievous hodily Ijarm," did not vitiate the con- viction, and that the priBoner miglit he lawfully convicted of the statutory misdemeanor of malicious wounding. Held, also, that imprisonment at hard lahour for a year was properly awarded under 38 Vict. c. 47. lieriina v. Boucher, 8 P. 1\. 20. 569. — In any case tried under 32 33 Vict. c. 32, s. 2, ss. 3, 4, 5 or 6, if the prisoner he condemned to fine and imprisonment, hard lahour cannot he added to the sentence of imprisonment, h'.vp. Carpentier, 9 L. N. 281, Que. 570. —A conviction under 32-33 Vict. c. 28, for keeping a house of ill-fame, ordered payment of a fine and costs, to he collected hy distress, and in default of distress ordered imprisonment, Held, good. Reciina v. Walker, 7 0. li. 186, Q. B. 571. — It is unnecessary to name any time for payment of the fine, as it would then he payahle forthwith. neriinn v. Caister, 30 Q. B. 247. 572. — Service of notice of appeal to the sessions heing the fust proceeding on an appeal, takes away the right of (■(•rtionui. The conviction was held had in that where imprisonment is directed for non-payment of a penalty, tlie adjudging of a distress of tiie goods to levy it, and then imprisonment in case of the distress proving insufficient is invalid and an excet^s of jurisdiction. Hef/ina v. Howard, 6 Can. Law Times, 526, Ont. 573. — The court refused to grant a mandamus to compel two justices of the peace to issue execution upon a 200 rniMiNAii diorst. conviction under (5 Will. IV. c. 4, s. 2, for sollinfj spirituouH lifiuors without licenso, the conviction lifivinfi; been founded upon tlu; wrltti-n statements of tlio informer, and the oath of one other witness; there beins a doubt, under the statute, wliether the infor- mation ouj^ht not also to be on oath. Jicijina v. McConnell, 0. S. ()2<). XXL— COMMITMENT. 1 '; V if : 574. — One justice may sir,n a warrant of commitment. A warrant addressed to the keeper of the common piaol at the City of Winnipeg, instead of to the keeper of the common gaol of the Eastern Judicial District (which is in the City) suftices. A commitment stating the offence as follows : *' did embezzle the sum of $104, the property of," etc., is illegal. ]*jinbezzlement is a statutory crime and can be charged against certain persons only. As in perjury it must be shown that the oath was taken in judicial proceedings, so in embezzlement the relationship of the accused to the person despoiled must appear. R77. — If the statute under which a i)erson is convicted dis- tributes the tines in positive terms, it is not necessary that th(! commitment should take notice of the convi(!- tion, nor need it say to whom costs are [)ayal)le. /vr parte A-^sonhtlisnon, Ramsay, A. C. 183 ; 187(J. 578. — Where the magistrate has jurisdiction only in case a plea of guilt is entered and it does not appear by the commitment reciting the conviction that any such plea hud been entered, the conviction was (juashed. Renina v. Collins, 8 Can. Law Times, 85 ; 5 Man. Law Hep. 130. 571i. — In determining npon a motion to discharge a pri- soner whether a warrant of commitment is defective, tlie court cannot go behind the conviction. The proper course wliere tiiere is a conviction sulHicient in law and a variance between it and the commitment is to enlarge the motion so as to enable the magistrate to file a fresh warrant in conformity with the convic- tion. In the conviction the otience was alleged to have been committed in 1887 and in the warrant in 1888. Rcjiiiiti V. Ldrin, 8 Can. Law Times, 371 ; 12 P. K. 642, Ont.; R. S. C. c. 176, s. 24. .')80. — A warrant of commitment in execution cannot l)e backed by a justice of the peace of another county, and the constable having acquired and possessmg mo authority to execute it in the foreign jurisdiction, the arrest and detention thereuniler w'ere illegal. Rc operation of the hnpcriul FjX- trtidii'on Act of 1870 Ims liccii su-pciKlcd in ("luiiidii, (jiiO'i'l the extradition of fuL^itivo olTcndcrs from the United States, and the |)i)niinion Act, -iO Vict. c. 'i.'), is applicahle in such case to the extent at least of the extradition arranf:;en)ents in force with that country. I'h<-I„n c.v i«irt,;{) L. N. 2(;i, Que. ; 11. S. c. 142. 028. — It is not necessary to the jurisdiction of a niii«^istrato in Canada, actiufj; under the treaty and statutes, either that !i(diarf];e should he first, laid in the United States, that a re(|uisition should he first made hy the Government of the United States upon the Canadian Government, or that the Governor-General should first issue his warrant requirinfj; magistrates to aid in the arrest of the fugitive ; in other words, the chari^e may he originated hefore the magistrate in Canada. Il>. (520. — The fact that the person is cliarj^'cd with piracy committed in the foreij^n country, ou;j;ht not to prevent the Government of the country where the fugitive is found from surrendering; him on the chari^e of robhery made and proved in the latter country, Ih. 080. — Remarks on the propriety of p;ivin<; a liberal inter- pretation to the extradition treaty, and the inadequacy of its provisions to meet the class of felonies of most common occurrence in both countries. licijiiKi v. Morton, at the police magistrate. Ejr parte Martin, 4 L. J., X. S. 11)8. 638. — The authority of the magistrate need not be shown on the face of a warrant of commitnu'nt, and wliere the crime has been committed in a foreign country, and the committing magistrate has (as MciM. had in this case,) jurisdiction in every county in Ontario, the warrant is not bad, though dated at Toronto, the county mentioned in the margin being York, but directed to the constahles, etc., of the county of Essex, Ilii I -1 222 CRIMINAL DKIKST. i' I'i : and thoii<];li signed by tlie police magistrate as sucli for the county of Essex. Rajina v. Reno, et al., 4 P. 1'. 281. 0)30.— On a petition for Jnilieas corpus hy a person com- mitted for extradition to the United States, it was Held, that the Ast requires merely that the fugitive ho charged with having committed, within the foreign jurisdiction, one of the crimes enumerated in the treaty, and that the evidence of guilt be such as, according to the laws of this country, would justify his apprehension and trial, if the crime had been com- mitted here; and wliere the authorities in the co utry where the crime was couimitted have declared by the issue of a warrant for the apprehension of an oliVnder that the acts complained of constitute an extradition offence, according to their laws, it remains for the authorities here onlv to examine whether the same acts if committed here would justify the arrest and trial of the accused for the same oifence. Ex parte Worms, 22 L. C. J. 101), Que. And it is not necessary that the depositions bo taken before the magistrate who issued the original warrant. Ih. An error in the warrant of arrest in an extradition case dees not affect the warrant ol' commitment, if the latter be in accordance with the charge and the evi- dence adduced, lb. The expressions " forgery " and " utterance of forged paper" in the treaty include every crime falling under that descri[)tion, whether it amounts to a felony or to a mis(U(ineanor only. lb. The Imperial Act of 1870 appli<^s to Canada, and is not inconsistent with section 182 of the British North America Act. lb. EXTIIADITION. 223 G40. — The prisoner will not be liberated because the war- rant of im[>risonment does not contain the word " feloniously," as found in the warrant of arrest issued in the; United States, nor because the judge who issued the warrant of iuiprisonniont inserted the words " well knowing the same to be forged," which were not found in the accusation. Ex parte Worms, 7 li. L. 320, (^ue. Depositions taken at Washington before ii justice of the peace, and certified l)e[ore another justice of the peace, who issued the first writ in the United States, may make proof against the prisoner, lb. A warrant of the Governor-General is not necessary to authorize the arrest. lb. Cil. — Application for the discharge on Jxtlxuis corpua of ])ris()ners ch, I'ged with robbery committed in the United States, and committed at Sandwich for extra- dition by Mr. McMicken, a police magistrate appointed under 28 Vict. c. 20. The prisoners, it seemed, had been previously arrested at Toronto on the same charge, and been discharged by the local police magis- trate, afler a lengthened investigation before him, Hell, that this did not prevent another duly (puilified ofticer from entertaining the charge ag'iinst them on the same or on fresh materials, Hi'Ul, also, that section 373 of 29 Vict. c. 51, did not preclude M. from taking the information and issuing his warrant in Toronto, where there was already a police magistrate ; for that the words of the text merely excluded him from jurisdiction there in local cases. Held, also, that the appointment of M. might well have been made under 28 Vict. c. 20, for any one of or for all the counties of U[)per Canada, including Toronto, and his powers made the same as a police -m 224 CRIMINAL DIGEST. magistrate in cities, except as regarded purely muni- cipal matters; and that this Act was continued by 31 Vict. c. 17, 8. 4 {().) ; but that, as nothing was suggested impugning his authority to act, the warrant must be treated as executed by an officer possessing such authority, Ilcbl, also, that the depositions on which tlie warrant issued in the United States after the arrest in Ciinada were properly admitted here as evidence of ciiuiiuality, their admission being within both the letter and spirit of tlie 31 Vict. c. 94. Rejjina v. Murtuii, et nL. 19 C. P. 10. 642.— A warrant of commitment for extradition should in its terms conform to the requirements of section I, 31 Vict. (Can.), c. 94, in directing the person accused to be committed until surrendered on the requisition of the proper authority, or duly discharged according to law^ The judge is required to decide whether he deems the evidence adduced before him sufficient to justify the apprehension and commitment for trial of the person accused if the crime had been committed in Canada. If lie ihids in the nllirmative he should so state it in his commitment, and certify the fact to the proper executive authority. IJis functions do not extend to determining whether the accused should be extradited ; that rests with the Governor-General after the evidence has been reported to him. If the judge fails to state in the commitment that he deems the evidence sufficient, the commitment will be held defec- tive and insutlticient. Where a person charged with a crime is committed in pursuance of a special authority, the commitment must be special, and mutt exactly i)ursue that autho- rity. If the commitment does not on its face show KXTRADITION. 225 that tlje case of the accused falls within the terras of the Extradition Treaty and the statutes authorizing the proceedings in extradition, or fails to contain the proper statutory conclusions, no sutHcient cause of detention will have heen shown, and he will be liberated on hnheas corpus. Ex parte, Zink, 6 Q. L. R. 2(50. 643. — In extradition proceedings the information charged that the inforniant " hath just cause to suspect and believe, and doth suspect and believe that PI. L. Lee/' the prisoner, " is accused of th-e crime of forgery, " etc., *' for that the said H. L. Lee," etc., did feloniously forge " some 78 orders for the {)ayment of money. The TiJtli charge was, that the said H. L. Lee, at the afore- said several times, etc., did feloniously utter, knowing the same to be forged, the said several orders, etc. Held, sufficient, for that the information charged that the prisoner "did feloniously forge," etc. ; and the allegation that the informant believed that the prisoner " is accused," etc., might be treated as sur- plusage ; but even if objectionable at common law, it was good under section 11 of 32-33 Vict. c. 30 (D), and 32-33 Vict. c. 29, s. 27 (D) ; and, moreover, the 79tli charge w^as free from objection, Held, also, that in these proceedings, a plea to the information is not required. Certain foreign depositions were sworn tobefore E. G., a justice of the peace for Cincinnati township, Hamilton county, Ohio. A certificate was attached, commencing, " I, Daniel J. Daltnn, clerk of the court of common pleas for said Hamilton county," certifying as to the signature of E. G., and that he was a duly qualified justice of the peace for said county, and entitled to take depositions of witnesses, etc. ; and concluded, " In testimony whereof 1 have hereunto set my hand F.C.D. 15 I 'I 226 CRIMINAL DIGEST. fti'^; I' \k and aflSxed the seal of the said court at Cincinnati, etc. D. J. Dalton ; Eicliard C. llohner, deput.v." To this was attached the certificate of the governor of the state of Ohio, under the great seal of the state, certi- fying thatD. J. Dalton, "whose genuine signature and seal are affixed to the annexed attestation, was at the date thereof clerk of the said court," etc. ; that " he is the projier jjerson to make such attestation, which is in due form, and that his official acts are entitled to full faith and credit." The court, without specially pronouncing on the question, refused to allow an ohjection, which, as a matter of fact was not taken, to the sufficiency of the depositions under 45 Yict. c. 25, s. 9, s-s. 2 a (D), for the official seal of D. J. Dalton was attached, and the governor certified that he was the proper person to make such attestation ; and also there was rira voce evidence given in proof thereof, so that the "papers were authenticated hy the oath of some witness " under sub-section (B). i^tT Wilson, C.J. — In these proceedings, the evidence of interested parties need not be corroborated. In re H. L. Lee, 5 Out. liep. 583, Q. B. 644. — The 10th article of the Treaty of Washington between Great Britain and the United States provides for the delivery up to justice of persons charged with certain crimes in one of those countries who may be found in the territories of the other, and directs what shall he sufficient evidence of criminality to justify the issuance ©t a warrant for the surrender of the fugitive. The Canadian Act, 40 Vict. c. 25, s. 28, enacts that when any person is surrendered by a foreign state in pursuance of any arrangement, he shall not, until he has been restored to, or had an opportunity of return- EXTRADITION. 227 ing to the foreign state, be subject, in contravention of any terms of the arrangement, to any prosecution in Canada, for any otlier offence committed prior to ^-'s surrender, for which he sbould not, under the arrange- ment, be prosecuted. A person imprisoned here on a charge of having committed arson (an extraditable crime), escaped and fled to the States, and on requi- sition made to the Government of tliat country, under the Washington Treaty, was surrendered, the warrant of surrender stating he was to be tried for the crime of which he was so accused. He was tried and convicted here of the crime charged, and while undergoing sentence was tried for breach of prison (not an extra- ditable offence,) committed before he escaped to the States, Held, per Allkn, C.J., Fraser and Tuck, JJ., (Wet- more, Palmer and King, dissenting), that there being no provision in the treaty on the subject, such trial was not in contravention of any terms of the arrange- ment for the surrender of fugitives between the two nations ; and that the warrant stating that the fugitive was surrendered to be tried for the crime of which he was accused was the act of the United States' authori- ties only, and was not an arrangement within the meaning of the Canadian Act. Per Wetmore, Palmer and King, JJ. — The trial of the accused for breach of prison was in contravention of the fair construction of the Washington Treaty as it had always been claimed by Great Britain, and was also contrary to the express conditions of the warrant of surrender. Rcyina v. Wdddell, 6 Can. Law Times, 61)8, N. B. ; R. S. c. 142, s. 23. 1)45. — When surrendered to the Government of the country from which he fled, the Government of the latter are I i h ! 1 228 CUIMINAL DIGEST. li'- ii;! It bound to try him for the offence for which he is sur- rendered, and not for any other or different offence. He Ihirlen, 1 L. J., N. S. 16 ; 11. S. c. 112, h. 23. 040. — Statements on oath sworn i)efore a judf2;e of a county court of lUinois, wliose sii^nature is certified by the clerk of the court uniUu- the seal of the court, are admissible as evidence in extradition [)roeeedinf:;s, and it is immaterial whether the witness was sworn before his evidence was taken down, as in a deposition, or after it« com[)letion, as in an atlidavit. A committal for extradition for " forg;ery " is suffi- cient without further particulars as to the nature of the crime. It is not necessary to obtain a warrant prior to arrest in cases under the Extradition Act. The fi ling up of drafts signed in l)lank without Muthority and for fraudulent purposes is forgery. Upon hdheas corjnis, the court should see that the facts alleged constitute an extraditable offence, and it should examine the evidence to see whether there is such proof as would warrant a grand jury to find a true bill, or a magistrate to commit for trial. A person committed for extradition but not surren- dered is entitled to a habeas corpus before the full court. It is not necessary to prove a demand of surrender from a foreign government in proceedings for a com- mittal. A jmma facie case may be made out by circum- stantial evidence. /// re Iloke, 15 R. L. 92, 99, Que. 647. — The judgment of the Court of Common Pleas, 31 C. P. 484, affirmed, but on different grounds. EXTHADITION. 229 An accessory before the fact is liable to extradition, but an accessory after the fact is not. Upon the ai)plicati()n to the county jiul^e of Kent for extradition of the defeudiint, who was under indict- ment in the State of New York for murder, the coroner, who had held the incpiest there, proved by oral testimony before the county jud}j;e here, the ori^imil depositions taken on oath before him, and also tropics of the depositions certilied by him to be true copies, Held, that, under section 14 of the Imperial Extra- dition Act of 1.S70, the original depositions were properly received, as the power given therein to use the original n accused of one of the crimes mentioned in the treaty, to receive evidence for the defence. In re Barley^ 1 L. J. N. S. 20, Ont. 2Ji2 CUIMINAL IU(»KHT. ,M ii (557. — Tlie majjjistratc hIiouM not {^o bpydtid a bnre Hnqniry as to tlio priiwi Idcu: tjvidorico ol" ci'iiniiiality ot the aeciised, and sliould not enquire into matters of defence which do not allect such criminality. In re Caldwell, 5 P. 11. 217. The judge or ma'jjistrate has no right to hear evi- dence for the accused, thougli he may in his dii-crttion hear any evidence tending to show that the. oftVnce is of a poHtical nature, or one not comprised in the treaty, or that the accuser wms a person who shouhl not be believed under oath, or that the demand was the result of a conspiracj'. Ex parte Ii()8(nih(tu)n,20 L. C. J. 165, Que. (558. — Original depositions are admissible in proceedings under the Imperial Act G-T Vict. c. 34, and ciin be used in evidence against a prisoner upon proof of their identity, and of their being properly taken, which in this case, upon the evidence set out, was held to be already shown. Rvtjina v. Matthew, 1 P. 1{. 199, Ont. G59. — Held, also, that they may be clearly proved by the rira voce evidence of a witness competent to swear to the facts, that copies of the de])ositi()ns can be proved by such testimony, as well as by tlie certificate identi- fying the copies, as copies of the original documents may be supplemented by viva voce evidence that the originals referreti to in the certificate were the originals upon which the warrant issued. Ih 6G0. — Copies of the indictment and of true bills found by the grand jury of the State of New York csninot be admitted in Canada as prima facie proof of the offence on a demand for extradition. Enn ex parte, 10 Q.L. R. 194 : Ex parte liosenhavm, 18 L. C. J. 200. EXTIlAniTION. 233 661. — Under 31 Vict. c. 94, the depoHitions must ho those? upon which tlie original warrant was ^'ranted in tlin United States, certifiod under the hand of tlie person issuing, and not depositions taken suhseqnently to the issue of the original warrant, and witlioiit any apparent connection therewith, liiujind v. Jiohinson, 5 P. K. 181). 662. — An allidavit sworn to heforc a commissioner of the United States, proved to he a magistrate! having authority in the nuitter according to the hiw where taken, n)ay he received, if properly proved, as evidence against the prisoner on proceedings for extradition ; and provided there has heen ad(hiced legal evidence applicahle to the ease, and prisoner lias thereon heen committed for extradition, a judge on an application for hdhcas lorjms will not he dis})osed to weigh or appreciate that evidence with a view of giving the prisoner the henefit of a douht as to its prei)onderance. Phdan ex parte, 6 L. N. 261, Q. B. 1883, l^ue. 663. — The evidence of accomplices is sufficient to estahlish a charge for the purposes of extradition. In re (,'ald- icell, 5 P. li. 217. 664. — Per Richards, C.J., the judges of the superior courts in the country where the fugitive is found may, on a writ of habeas corpus and certiorari, consider if there was sulticient evidence hefore the committing magis- trate to justify the committal, and so may review the decision of the magistrate on the evidence. Sed, qucere, per Hagarty and John Wilson, JJ., lie Burley, 1 L. J. N. S. 84 ; Re Warner, 1 L. .J. N. S. 16, Ont. 234 CRIMINAL DIOEST. K ? 1^ 665. — The duty of the court or a judi^e, on a habeas corpus, is to determine on the legal sufficiency of the commit- ment, and to review the magistrate's decision as to there being sufficient evidence of criminality. Rc(/ina V. Hefio, 4 P. E. 281, Ont. 666. — A judge in chambers has power to review and decide on the sufficiency of the evidence returned by the com- mitting magistrate, or, if necessary, to hear further testimony. Regimi v. Tubhee, 1 P, E. 98, Ont. 667. — The prisoner, who had been committed for extra- dition, was charged with assault with intent to com- mit murder, in that he had opened a railway switch with intent to cause a collision, whereby two trains did come into collision, causing a severe injury to a person on one of them. Held, that this was not an "assault" within the statute. In re Leiria, (S P. R. 236, Ont. See Re^ht," and con- cluded by instructinj]; the f^aoler to " there safelv kee]) him, the prisoner, until he shall be thence delivered by due course of law," did not come within the pro- visions of the treaty or statute, and was consequently defective. In re Anderson,, 11 C. P. 9. ()7] . — Hurjj;lary is not an offence within the treaty or the statutes passed to give effect to it. In re Beehe, 3 P. 11. 273, Out. 672. — A British subject committing one of the crimes enumerated in the treaty within the jurisdiction of the United States, and afterwards fleeing to Canada is subject to the provisions of the treaty, which provides for the surrenderof '* all persons " who, being charged, etc. In re Barley, 1 L. J. N. S. 34, Ont. 673. — Lawful acts of war against a belligerent cannot be either commenced or concluded in a neutral terri- tory. //;. 674. — A person was arrested here for having committed in the United States the cime of forgery, by forging, coining, etc., spurious silver coin, etc., Hrld, that the offence, as above charged, did not constitute the crime of " forgery," within the meaning of the Kxtradition Treaty or Act. Definition of the terra " forgery " considered. In re S nith, 4 P. R. 215. (J75.—I{el(l, per Sullivan, J., that upon the facts set forth in the judgment, the prisoner, who had been com- mitted for extradition by the mayor of Toronto upon EXTRADITION. 237 an alleged crime of f()rf:;ei'y, had been committed upon lusutlicient evidence, and must be discharged. In re Keymott, 1 C. L. Chamb. 258, Out. 676. — A person convicted of forgery, or uttering forged papers in the United States, who escaped to Canada after verdict, but before judgment, is liable to be delivered over. /// re Warner, 1 L. J. N. S. llJ, Ont. 077. — On a demand for extradition, the warrant was in the following words : — That J. C. E., late of New York, in the State of New York, one of the United States of America, is accused of the crime of forgery and of the felonious utterance of a forged authority and order for the payment of money, within the jurisdiction of the State of New York, one of the United States of America, to wit, for that he, the said J. C. E., on the seventeenth day of January, in the year of Our Lord one thousand eight hundred and eighty-four, at the said city of New York, with intent to defraud and with intent to con- ceal a misappropriation of money, feloniously did draw, make and sign a certain order and authority for the payment of money, commonly called a cheque, dated at New York aforesaid, the day and year last aforesaid, for the sum of one hundred and twentv-tive thousand dollars for and on account of the Second National Bank of the city of New York, and falsely pretending to so draw, make and sign said cheque as president of said bank, the whole without lawful auihority or excuse. And further that the said J. C. E. afterwards, to wit, at the said city of New York, on the day and year last aforesaid, feloniously did offer, utter and dispose of and put oft" a certain order and autho- rity for the payment of money, commonly called a cheque, dated at New York aforesaid, on the day and year last aforesaid, f^^r the sum of $125,000, with 'iti 238 CRIMINAL DIGKST. intent to defraud, drawn, raside and 8ip;ned for and on account of the said Second National liank, of the city of New York, hy J. C. E., who falsely pre- tetided so to (h'aw, make and si<;n said cheque, as president vf the bank, the whole without lawful iiuthority or excuse, and with intent to conceal a mis- appropriation of said last-mentioninl sum. delivered the said hank checpie to G. and li., tlic payees therein named, from whom he obtained thereby money, vuluo or credit in the sura of $125, OdO, named in the said bank cheque, and who thereupon endorsed the said bank cheque, and by means thereof, thereupon, at said city of New York, obtained from said Secoiul National Bank the sum of !$r2r),000. named in tiie said bank cheque, and thereupon J. C. E., with the intent to defraud and to conceal the said miHa])propriation of the money of the said Second National Biink, did make and cause to be made false entries in the accounts and books of account of said Second National Bank, whereby it was made to appear that the said sum of $125,000, had been loaned or advanced by said Second National Bank to said G. &■ l\. and F. S. S., whereas in truth no loan or advance has been made to them or either of them by said Second Natiruial Bank, but the said sum of money had been misappropriated by said J. C. E., and did with like intent to defraud and conceal said misapproi)riation of money, w'ilfully omit to 1.'! ike true entries of the said bank cheque, or of the said sum of money for which said bank cheque was so drawn, in the accounts or book of accouiit of the said Second National Bank, kfpt by him or under his direction, he, the said J. C. E., well knowinf^ the said last-mentioned cheque to have been so drawn, made and signed. Held, maintaining the petition for Jidhcoit rorj)tis, and EXTRADITION. 289 dismissing the demand for extradition, that when the demand for extradition is for forgery, the offence must he tliat recognized as forgery by the Imperial Extra- dition Act of 18-12 ; that according to that Act forgery is the malving or uttering of writing so as to mak(! the writing purport to be the act of some other person, wiiich it is not, and not the making of an instrument which puri)orts to be what it really is, but which con- tains false statements, and therefore false entries in the books of a bank by its cashier, do not constitute the olfence of forgery according to the Extradition Act of 1842. Kno ex parte, 10 Q. L. R. 194, Que. 678. — The petitioner had been arrested in Quebec on the 16th June, 1884, on a warrant of arrest under the Extradition Act of 1887, for an alleged forgery, and applied to be liberated on the ground that he was not guilty of any oft'ence for which his extradition might l^e demanded. The proof established that the accused had signed as president of the Second National Bank eight cheques for amounts varying from $95,000 to $200,000, and bearing various dates from 25th Sep- tember, 1883, to 13th May, 1884. None of these cheques were given for the legitimate business of the bank, but were for the benefit of the accused, who nuide false entries in the books of the bank and issued " slips " and " tickets " for the bank's employees in order to conceal his defalcations. Moreover, the bank was to the knowledge of E. in an insolvent condition when these cheques were given, and in the evening of the 13tli of May, 1884, E.'s resignation as president was handed to the directors, the last of the cheques in question having been drav;n by him on that day and paid before three o'clock by the bank, In addition to this evidence the prosecution produced true copies of 240 CRIMINAL DIGEST. five indictments of the grand jury of the city and dis- trict of New York, returning true hills of forgeries in the lirst, second and third degrees under the laws of New York. It was pretended hy the prosecution that these indictments were admissible as evidence as " statements on oath " under the Extradition Act of 1877, section 'J (1), Jlehl, that these indictments could not be accepted as ]>riin(i facie evidence of the commission of an extra- ditable oHence, and that the acts proved in the present case did not constitute a forgery. Eno ex parte, 7 L. N. 3G0, 8 C, 1874, Que. ()71). — The prisoner was the superintendent of an almshouse in the city of Philadelphia, N. S., which was supported by the city. Certain persons furnished goods to the almshouse and were entitled to receive warrants for the price thereof. These warrants duly prepared and signed in favour of the parties entitled, were in the hands of W., the secretary of the almsbouse, to be delivered to the proper parties on their signing the counterfoils of the warrants. The prisoner obtained possession of the warrants by falsely representing to W. that he had authority to sign the names of the respective parties entitled, and by signing such names on the counterfoils. The warrants were then cashed at the city treasury. The district attorney of Philadelphia, who was examined before the county judge, swore that, accord- ing to the criminal code of Pennsylvania, established by statute there, which was produced, and at common law, as there interpreted, the facts shown made out the crime of forgery, IlchI, Cameron, J., dissenting, that the offence EXTRADITION. 211 amounted to forgery, within the meaning of the Ashl)urton Treaty, and that the prisoner should be remanded for extradition. Per Hagaui'y, C.J. — The evidence disclosed a prima facie case of forgery sufficient to warrant the com . iiit- ment for trial of the prisoner if the crime had been committed in Canada. Per Armour, J. — The treaty was not intended to include the crime of forgery only where that crime is common to both countries. In framing the treaty the high contracting parties were dealing both with the present and future, and the general term forgery should include everything in the nature of forgery, and which hereafter might be held to be forgery at common law by the decision of the courts, or might be declared to be forgery by the statute law. Per Cameron, J. — The statutory crime of forgery is the only kind of forgery within the treaty, but it was not intended to embrace any act or offence made forgery by any statutory law of either nation passed after the execution of the treaty. The offence in this case was the obtaining a cheque by falsely pretending that the prisoner had authority to sign the counterfoil, and was not within the treaty, Held, also, that the original warrant, within the meaning of 31 Vict. c. 94, s. 2 (D), is not the first of two or more consecutive warrants, but is any warrant is?' hI in the United States of America. Re Ellis P. Phipps, 1 Ont Eep. 586, Q. B. 680. — A statement of account such as is received by a bank from other banks having business connections with it and containing an acknowledgment of the receipt of money to be accounted for is an '* accountable receipt " F.C.D. 16 i^:i h\ 242 CRIMINAL DIGEST. within the meaning of K. S. C. c. 1G5, s. 29, and the frairVilent alteration thereof is a forgery. A confession as to alteration of accounts made hy an officer of a bank after his connection therewith has ceased, to a fellow-employee (no director heing present) is not made to a person in authority ; and where such confession is made without any inducement being held out, and after the accused was cautioned against say- ing anything he did not wish repeated to the directors, it is admissible in evidence. In a case of forgery it is not necessary to prove the legal existence of the bank intended to be defrauded ; it is sufficient to prove generally an intent to defraud. The omission in the jurat of the place where the depositions were taken is not material where the place is mentioned in the heading or margin and is other- wise certified to. The fact that an indictment for embezzlement has been found against the prisoner in the State whence he fled does not prevent a demand being made for his surrender for forgery. An alteration of a writing or " accountable receipt " made to prevent the discovery of a fraud previously committed is a forgery though no money was taken then. And so where a forgery is alleged to have been committed in a particular month it is not necessary to prove that the money obtained was taken by the accused in that month. In proceedings for the extradition of a fugitive, evidence to contradict that of the prosecution is not admissible. The aroused is entitled to show, only, that the offence charged is not one of the crimes mentioned in the treaty. In re Dchaan, 11 L. N. 323, Que.; R S. c. 142, s. 9. ■I EXTRADITION. 243 681.-Defe„, 211 Hettint,', (".8 Bigamy, ()!»-70 Bribery, HO-Ht Buildin},', definition of, 27-8 Burj^lary, 85, '200 li c Certiorari, 201, 30.*), 313, r,0t-.'5-0, .')2:J Cheatinji, 187 Coining,', hO Color of ri«lit, 1/5-17, 11I-20 Commitment, 111, ")71-r)81 Compounding,' offences, ;> Concealing,' birth, 87 Confessions, 412-410, 423-420 Consent in assault, rtH, 04 Conspiracy, HO, 88-U3 Constable, who is, 41 Contempt, 228 Contradiction of witnesses, 457-8, 401-2 Conviction, a bar to civil proceeding's. 21, 54-5 sufficiency of, 51, 193, 217, 312-3. 523-573 for assault, 31), 50 former, 404 Coroner's inquisition, 381) Corroboration of evidence, 11, 157, 180, 417-422, 431), 411-2 Costs, 250 Counsel, 407-8, 465-G, 492 County Court. 217 Court. See Jurisdiction Criminal process, abuse of, 252 D Declaration, dyinj,', 443-4-5-0 Deed, larceny of, 199 INDKX. 247 Deed, falHo doclaratioii in, 14 1 Delay in hrin^iii^ cliarf^e, 21',», '2'2H Dei)()Hilion«, ill, 127-8 1>, luD-GO E Election by Crown. 2'iO Embezzlement, '.)M07 Embracery, 108 lOnliHtnuMitH, foroi^^n, 10!), 11 1 llntry, forcible, Itl-IH'J Error, writ of, 305. 308, 507-513 Estoppel, 214 Evidence in abduction, '2.'{-0 nrHon, HH bi^'amy, 00, 72, 74-5 0, 70 murder, 232, 234, 238 perjury, 258, 202-3, 200, 273 war levying', 314-5, 317 of defendant, 1H5, 323 wife, 77, 318, .322 admissions and confessions, 317, 4r2-41(), 423-420 dyin)4 declarations, 44;).4-o-6 depositions, 411, 427-8-9, 459-00 documents, 258, 202 intent in arson, 29, 31, 32 otiier offences, 59, 142, 105, 238, 449-50-1, 453 corroboration of, 11, 157, 18t), 417-22, 439, 441-2 Exposure, indecent, 115-0 Extradition, 35, 85, 94, 159, 162-3, 182 3, .371, 022-081 P False entries constitute forgery, 153, 156 pretences, 88, 118-143 Foreign enlistments, 109, 114 Forgery, 153-184 Forms, statutory, 140, 194, 277 Frauds, 185-0-7 Fruit, larceny of, 210 248 '^Jamiii},', 1H8 INDKX. G H llahe'i!^ forpiiK. TjOH, t;i0-n'21 (1(1 t(slijiciiii(liiin, Uil I Iiuiccciit iiHHault, /JT-H-'.I oxpoHure, 115-1 (> rndictment, H2'l-H04 fofin of, M.'M ain(.!ii(liii«, 'M, 2i;i, '2:511, '27n, :{: false pretences, 122, 128, 141 forgery, 174, 178 injury to property, ."{2!) insolvency cases, 184 larceny, 180, 1!)4, 211 at sea, 200 murder, '^30 np>,'lectinf,' to Hupp(<. t wife, etc., 318-0, ."20 perjury, 2.'.(;, 275, 277, 343 woundmf.', /24-5-0 INDEX. 24! IiiHolvency, frauds in, 184 Intent in iirHon, 2!»-;U)-I, M, 12!) falHO prctci.ooH, 112 fort>(3ry, lOl, U',H, 177 k'dnappinf,', IH!) larceny, 'Mi, 211 Intoxication, kiilinf^ by, 2.'J()-7 J Joinder of offonceH, 2.'{8, 27!t, 2!)H ■Uid'^f, cliiu-j^e of, •I(i7-.S.!) at trial iacoinpetoiit to sit in error, ^,()^ Jurat, "I'l Jurisdiction, ouster of, 7, l/)j;-7, 1!), HO JH, ;{7, r,;{, h7, 170, 2r,i, 2(;(), -.v.n Jury, ^'rand, ;{27, 4C)2 (lualification, IMW-JUl!) chaileni^eH, :i7H-'»-H0-l Ktand asidcH, :i72-:i77 liHt, ;{70 mixed, ;{70, 'M'i-li trial on {)r(!liniinary plea, .■{71 ;ir.r>-;iHH. 4o;{ Juror wrf)n;4, ;}84 Justic(!H, appointment of, 10 Kidnapping, 189 Libel, 224-229 Larceny, 105, 127, 190-223 LakoH, inland, 397 Malice, j)reHumption of, 235 aforetbouf'ht, 239 ManHlauj,'htcr. See Murder K M 250 IN'DEX. Marria)4(!, cvidcMict! of. .S''''' Fiij^iuny MeiuuJOH, '22'2-:5, %\.i. N"'' 'I'liroats MiHJoiiidcr. :!;")'.).()(). I Money, (;lu!, 2:i8, .iM ownorBi.ii), '.)."., lo:;, 12'.), 212, :i(;:j I'articnlars in falne prulenoriH, 121, 101 Partner, larticny by, l'.ll)-7-H I'iiacc!, brcacli of, 48 Perjury, 2." 12H1, XiH, Ul\ iiM a(;(;oMi|)li(!'!H in, 1 1 Hubornation of, (1:$, 257 I'cHonalion, 282 Pica, (;lian^?(! of, 40"> Poli(;« n'a<^iHtriito, juriHcliction in aHnault, 'M Po.ssuHHion in larceny, 202, 21:5, 21'.( ri cuivin-^ Htolon noo:ln, 207 PoHVponcment of trial, IH*), :547-H, 410 INDKX. PreHorir.d of iiccuHcd at arf,'urMeiit, 409, 51/5, .011) l'roiiiiH(; not 11 fjilm; pnjtciico, |;{ii, l.'jH I'roiiiiHHor}' noto, 1;{7-H, KM, Kii;.?, 17(;.7.h !» Property, injuriiif,', 28;}-2H5 2ol R Ilapo, 57, 04, 2H(;-2!M KoHcuo, 2!j5 Kcccivirif,' Htoleii j^ools, 1!)5, 20r).(;.7 licatitutioii. ,S',r I''()r(;iblc Kjitry Uitjlit to I)c^iii, .Kio-f; color of, ir»-2() Kiot, 2',)(;.2'.)H Roll, forgery of uHHcHHriujiit, JHI s S(3M,, larceny at, 201 killiiif,'at, ;{;)rj-(;-7 Hentence, 47.'j-l oxt'ciitioii of, ■J7.')-17H Hevcrarice of dcfciKic, 100 HoHhioiiH, ((iiartcr, r.;{, |7|, ihd, 'JC,! Khan'hold,.,-, cannot commit larceny, 12;j, 11)7 Smiit,'^ilin«, 2!)!) Hpeody Trials Act, 189, 217, 522 Htollioiiatus, ;j()0 ToIej,'ram, forf/inf,', 151 Title, in forcihh; entry, 114, 150 Tenant, fraud liy, lH(i Threats, 222;}, 2;j:!, .'U)1.2 'I'raitor, estate of, 475 Trial, Hinnniary, 4" rneanint,' of word, 51(; new. ,SV,' New 'I'rial postponement of, 189, ;M7.h, 41 'I'reason, .'{.i;). .s,,^ War Levyirif,' 'J'rustee, lOli 252 INDEX, U Ultra vires, 365-0 Uttering forged paper. See Forgery Vagrancy, 303-313 Valuable security, 136 Value, 220 Variance between indictment and proof, 217, 267, 27-^, 351 Venire, 367 Venue, 110, 257, 301-2-3-4, 306, 308-0 Verdict, 57: 67, 127, 133, 240, 270, 470-1 Vessel, evidence of nationality of, 305 Vexatious Proceedings Act, 254, 343-4, 357 W War, acts of, in neutral state, 241 levying, 314-317 Wife, evidence of, 77, 318, 322 neglecting to support, 318-326 Witness, competency of, 77. 186, 280, 318, 322-3, 430-438 absence of, 427-8-0 contradicting, 457-8, 461-2 corroborating. See Corroboration credibility of, 463 recalling, 387, 455-6 wounding, 324 K.