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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<!i(i
Cook, oiM
Cooto, 411-12
Corcoran, 2'(7
Coriii'llicr, lOH
Cornwall, ISH
Corrivcaii, "jK'J
<orwiii, '.i'.l'.i
C6t(% (Id-?
Coiiitcr, ;{K()
cowan, 2(17
Cox, (il()
Crait,', 177, nr,'!
Creamer, (J, l.'J
Cronan, 4(>-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<i.()0(il-G4-(5;'i-()(i
Cyr, 530
Daley, .'IOC,
Daoi'iHt, 407, 4H0
David, ',»".
DavidHon. 1!)
J)aviH, VM), 140
J )eane, :»;}()
D(! Mann, /;/ re, (iHO
Deenan, e.r jiiirlc, (',04
D(!(ry, ;{24
Defoy ;')()'.)
Dcnanit, 274
Derri(!k, ;(H(»
i>(!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
<i
Oa«an, '2r,H, \r,i. u;h-<.)
(ian(H, '(;<
(laiillicrciuix, /(/ /■(', fiH.'i
Oenunoll, Kill
(iihhonM V. 'l'c!ni|ilay, 4t')i">
(iil)K<in, '270
(iilc^H, 1711
(iillcHpii! V. Wixon, 17'">
(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<n,574
HalliH, '25
Horsnian, Hi, '.(3
Howard, 57'2
HowcH, ;{57
Hn<ldi'll, 405
Huf^hsoM.IMH
Hnniplirt'VH, 4:iO
Hunter v.'CJriMiiiiH, 471)
Huot, c.r jKirli', 5H2
llupixl, I Hi
HyneH, 'M
Irwin, 400
Ivy, :i54
.1
.Jackson, 14H, •2i;i
.JaniicKon. JK7
.larranl, \iV-i
.)(Mininj^H, 455
.Jerrctt, 4:5(i, 457
.John, 57
.lolmson, '204, 2->'>, 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..<i, 485
Lamirande, ex parte. 150, 65H
Fiamothe v. Clievalier. 38
Langford. 546
J.ani6re, 387
Lantz, 41
Lapointe. ex parte, 581
Laprise, 58
Larouche, 45
I^aurent, 206, 515
Laurier, 227
Lavigne, 122
Lavin, 579
Leblanc, 108
Jieba3uf, l<(9
Lee. 134, 643
Ijefebyre, <'.r parte, 532
Lemieux, 45
Leonard, 273, 276, 3G4
Levasseur, 115
Lcveqiie, 310-11
Lewis, in re, 35, 633, 667
Ling, 275
Livingstone v. Massey, 215
Long, 2!)8
Lortie, 236
Lynch, 315, 343
M
Magrath, 316, 613
Maguire, 370
ex parte, 600
Maher, 318
Malcolm, 20
Mallott, 3<»1
Malouin, 16 »
Marchessanit v. Gregoire. 21, 54
Marsh, 400
Martin, 145, 271-2
ex parte. 637
in re. 114
Mason, 9, 208, 223, 255-6, 334, 358,
603
; Massey, 248, 104
j Matthew, 658-9
I Maxwell, 409
I Maynard, 137
j :\[ercer, 82, 84
Meyer, 323
j IVIeyers, 247, 327
I Milloy. 460
J Mitchell V. Thompson, 149
I Mondelet. 22
I Moodie, 82
Mooney, 201
Moore, 395-(i
V. Jarron, 561
i\Iorgan, 542
Morrison, 12
Morton, ()30, 641
;\Iosier, 615
IMuUady, 588
^lunroe, 557
Murphy. 410
V. Cornish, 478
Mac Mc
I
; McCann, 65
McCartliy, ex parte, 619
McConnell, 573
I McConnohv, 406
McCorkell,'l60
! McCulloch, ex parte, 14
[ -Macdonald, 268
McDonald, 35, 126, 170, 175. 432,449,
505, 667
McDonald v. Cameron, 210
McDonel. 353
McDowell, 235
McElhgott, 39
McKlroy, 498
McEvoy. 53
.McFee, 176
McGawlev, 479
Mcdinnis. 198
Mcintosh, <<./• /arte. 558
McKeon v. Hogg. 83
McKinley v. Munsie, 5i)6
McKinnon, /// re, 49, 605
McKrearv, 149
McLeod.'394
McMahon, 314
McNevin, 158
McQuarrie, 128
McQuiggan, 71, 73
TABLE OF CASES.
XIU
l.j
N
Nasmith, 321
Nelson, 427
Newton, 312
Notman, 388, 513
O
O'Brien, 17. 212
O'Kune, ex parte, 014
Onasakcnrat, ti'.Hi
O'Neill, 40
Or^an, 304
O'Kourke, 3(;5
Oueliette, 34.1
OveuH V. Taylor, 50
Oxer.tine, 501
Pagnuelo, 12
Palliaer, 300
T'aqiiet, IHO, 2«1, 33'.), 3G3
i irker, 173
in re, (550
ParkinKon, 120
Patoille, 184
Patterson, 240, 331-2, 377
Paulet, 344
Paxton, 15'), 371, 517
Pelletier, 11, 338, 434
Peltier, 443-4
Perley, 541
Perry, 207, 43!)
Phelan, ex parte, 027-8-9, 631, 6(i2
1 liipps, /;/ re, 07'J
Piche, 87, 302
Pickup, 125
Pierce, 70
Plante, ex parte, 471
Pollock, ex parte, 020
Portis, 155
Poulin, 57<)
Powell, 508
Preston, 180
Provost, 328, 366, 521
Q
Qiiatre-Pattes, 466
Quinn, 16
Reid V. Mc Winnie, 555. 662
Reno, 638, 055, 665, 609
Reopelle, 171
Richardson. 313, 431, 523
Robinson. 117. 661
Robaon, 250
Rosen bauni, ex parte, 057, ORG
Ro«s, 2)i3, 495, 497, 520, 504
Roiisse, 4
Row, 254
Roy. 91. 186
V. Malouin, 522
Russell, 398
S
Rage, 593
Samo, 442
Sanderson, 401
Saunders, 211
School, 3.-)9
Schrani, 109
Scott, 109, 319
Seddons, 420-]. 498
Seeker, 78
Sellars, 229
Sen^cal, 124, 347, 349
ex parte, 543-4
Sharp, 397
Shaw, 51, 538
Shuttleworth, 295
Slavin, 317, 447. 498
Smith, 27, 44, 75-0, 147, 320, 379, 417,
440, ,545
Smith, in re, 113. 153, 181 674
Somers, 520
Sparham, 445, 456
Spelman, 146, 337. 341
Spence, 249
Sproule ex parte, 610
Sprungli, 200
St. Amour, 408
St. IJenis, 192
St. Laurent. 470
St. Louis, 123, 190
Stansfield, 100
Starr, 219-20
Steel, 172
Sternberg. 90
Sttwart, 154, 191
Stitt, 26
1
ii^
XIV
TAULE OF CASES.
i
Straclian, 555
Sulis, 20:J
Hullivan, 4!)0
Mupriiiii, 21()
T
Tascliemacher, ex parte, !)1
Tellier, 10, 434
Thayer. 88
Theal, 288
ThoniaH v. Piatt, 251
Thompson, ex parte, 535
'J'ierney, 8(), 342
TiBdale, 117
Townsheiul, 4(>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 //.■/</, also, that the ajiplicant must declare that
he waived all other remedies, civil and criminal, and
that the court, being in the position of a grand jury,
will require satisfactory evidence of the guilt of the
accused, such as should he presented to a grand
jury. Ihid.
F.C.D. 2
2
(lilMINAl. I»1<»KHT.
II. INTRODUCTORY.
1. -Oil a writ of linhntu rorpux, issued to prodiici' tlie
l)0(ly of a [xTsoM iiiiprisoncd tiiider a conviction before
two jiiHti(!Os of the peaco for scdlinj^ ticivcts in and
hidon'^inj; to a forei^j;!! lottery,
n<hi, that the statute . 11 Oeo. II F e. 8:1, introduced
into this province that i)ortion of the criminal law
of I'inj^hind only which was of universal application
there, and not such parts as were merely municii>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<riniii»'r and K'>"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 <lc mn'o in this division.
Uthl. \Vii,-io\. ('..I., dissentiu}^, thai the court of
assi/e of Oyer ami Terminer and {general j^aol delivery
is now, hv virtue of the JudicatiU'e Act. tl • lli^h Court
o
f .fustice : that tin; indictment was found.
an(
1 tli(
<lefendants Mi)i)(,'ared and demurred thereto in the lli}j;h
Court of .Tusticc : and that it was not necessary to plead
,1
lie iKiro ni the nu
th
diet
ment.
I'll- Aioioiu. .1., and O'Connok, J. — 'I'lu- Supreme
Court of Judiciitm'e is not properly a court, and ou^dit
more properly to have \n\c\\ called the Supreme Coun-
cil of Judicature. The divisions of the ni<i;h Court are
not themselves courts, hut to{];ether substitute the Ifij^h
Court, which is just divided for the convenience of
transactin;^ business ; and the judj^jes sit ns judges of
the High Court, an'' exercise the jurisdiction and ad-
minister the jurisdii'tion of the Hi Court.
Tlie recognizance entered into bv the defendants on
tlie removal of the proceedings to this division, pro-
vided that they should "appear in this c urt and
answer and comply with any judgment which may be
given upon or in reference to a certain indictment,
ill
CRIMINAL DIGK8T.
etc., or upon or in reference to the demurrer to such
indictment, and plead to said indictment if so
required."
Per Wilson, C.J., aotdilc, that the practice and pro-
cedure hefore the Judicature Act shouhl he maintained
in its entirety ; though possii)ly it might he varied h}-
agreement. By the recognizance, the defendants had
not agreed to vary it, hut thoy might thereunder elect
to appear and answer to the indictment or to appear
and argue the demurrer : and they, heing ready to
appear and answer the indictment, would fully perform
the condition of the recognizance hy so doing. IlcjiiiKt
V. Bunthiii, i't III., 7 Ont. Hep. 118 (). B.
8. — HdiL that the crown, hy prerogative right, could
issue a commission to the judge ui the provisional
judicial district of Algoma to hold a court of Oyer and
Terminer, and general gaol delivery, for trial of
felonies, etc.
t^cmhlc, pel Wilson, J., that such judge having hy
section 94 of C. S. U. C. c. 128, the same powers and
duties as a county judge in Upper Canada, he might
have heen appointed under C. S. U. C. c. 11, s. 2, to
act as a commissioner. Ueiiina v. Ainer, et al., 42 Q B.
85)1. S.3 /// re Boucher, 4 App. M. 101.
9. — Held, that the police court of the city of Toronto is
a court of justice, within 82-133 Vict. c. 21, s. 18, and
that the prisoner was properly convicted of stealing
an information laid ni that court. Retiino v. Mason,
22 C. P. 246 : R. S. c. 1(U, s. 15.
10. — The Provincial Legislatures have the power to
appoint justices of the peace and police magistrates.
Ueii'ma v. Bush, 8 Can. Law Times, 131, Ont.
PEIiSONS CAPAHLK OF COMMITTING CRIMES.
5
III. PERSONS CAPABLE OF COMMITTING
CRIMES.
11. -A person accused of perjury cannot have accom-
plices, and is alone responsible for the crime of which
he is accused. Reninn v. PeUctirr, and Ihuiina v.
Tdlicr, 1 II. L. 5t)5, Q. 13. 1870.
12. An advocate who has advised a client to oppose a
writ of execution, even by force, believing it to be
null, cannot be convicted on a criminal information
for such advice. Ihui'uia v. Morrison ,('• Patfiiudo, 8
Ji. L. 525, Q. B. 1872.
18.— A soldier convicted of bigamy is not thereby dis-
(diarged from the service to which he belonged, Rniina
v. Crramer, 10 L. C. \\. 404. Q H. 18(50.
14.— Soldiers guilty of felony must tirst be held to
answer to the criminal tribunals of the country, pro-
ceeding as under the common law of England, before
a military court under the Mutiny Act, and the
Articles of War, can legally take cognizance of the
charge. MrCiilloch, ,:r parte, 4 L. C. IL 467, Q. P,.
1858.
«
15. — A plea to a complaint of having maliciously injured
property, that one of the defendants acted as a munici-
cipal ofiticer and the other as his assistant, suliices to
oust the jurisdiction of the justice. Kenncfi v. B
iiiaii,
9 Q. L. Pi. 277 ; 11. S. c. 108, s. 59.
10.— Where an indictment charged defendant with
errii-
pro-
cunng certain persons to cut trees, the property of A.,
J^., and C, growing on certain land belonging to them,
6 CUIMINAL OidKST.
and tile evidence shewed that the land belonged to
them .and to another as tenants in common,
I[cJ(l, that a conviction could not he supported.
UerjiiKi V. Qirnni, 2i» (,). P>. 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 <il, 15 (,). 1^. : 1{. S. c. 1(58, s. 5<).
I'.i. - -The defendants were convicted of a trespass under
C. S. U. C. c. 105, as amended by 25 Vict. e. 22.
I'hey appealed to the sessions, which altirmed the
conviction. The conviction was then brought into
this court, and a motion was made to (piasli it on the
ground of want of jurisdiction in the convicting justice,
inasmuch as it appeared by the evidence, and by
atttdavits filed, that the defendants acted under a fair
and reasonable supposition that they had the right to
do the acts complained of within the meaning of the
above statutes.
I'KRSONS CAPAHM-; OF COiNIMITTINd ("RIMES.
Uehl, that that was a fact to be adjudicated upoii l)y
the convicting justice upon the evidence, and therefore,
that a certiorari would not lie for want of jurisdiction.
Puufinaw Malcnlm, ct al, 2 Ont. P.ep. 511, Q. B. ; R. S.
c. 108, s. 59.
20.— On error brought, it was
HcUJ, that on the record of a conviction for murder,
the authority of the justice sufficiently appeared without
any statement whether a conmiission had issued or
had been dispensed with by order of the governor ; for
such courts are now held, not under commission, but
by virtue of the C. S. U. C. c. 11, as amended by 2!)-80
Vict. c. 10 ; and as the record sufficiently shewed
the absence of any commission, it must })e presumed
that it seemed best to the governor not to issue one.
Sc)iihh\ that if the court had been held by a Queen's
counsel or county court judge, it might have been
necessary to shew whether a commission had issued
or not, as he would derive his authority from a different
source in each of the two cases.
Sc.mhlc, also, that if the caption hud been defective,
it might have been rejected altogether, under ('. S.
r. C. c. 99, s. 52. Mliclan v. Hinina, 28 Q. 13. 2.
•21. —A conviction fo'* assault may be pleaded in bar to any
other proceeding, civil or criminal, for the same causes,
but it must be pleaded in order to avail. CnUahan v.
Vi)trn,t,'^ L. N. 154; Siiiiardy. Marsan, 2 L. N. 333:
contra: Mdrclu'f^sdiilt v, G';vv/o//v, 18 L. C. J. 1-10 ; i
II. L. 54, Nos. 54, r)5, post : II, S. c. 178, ss. 74, 75.
ti-<
1
1
^
CRIMINAL DKIEST.
' I'.
i ' II
IV.- OFFENCES.
I. 4l><lii4*tioii
22. — Where it ai)[)eiU(il that the ;^irl, under sixteen years
of a^e, liad U't't her guardian's house for a particulai'
purpose, with liis consent, it was hehl that she did
not cease to be in his possession under the statute.
Il,';iiii(( V. Mninlrl,'t, 21 L. C. J. 154 : R. S. c. 1()2, s. 44.
2H. — The indictment should set forth the interest of the
woman in the property.
It is a substantial fact wiiich the prisoner has a
right to rehut.
He cannot do so unless the luiture of the interest is
disclosed.
When the interest is set forth in the indictment, it
must be proved as laid.
Verbal evidence of interest in property cannot,
generally, sustain such an indictment. JiCi/iiKi v.
Kaylor, 4 L. N. U)(> ; 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<iiti<i
v. mtt, 30 C. P. 30 ; R. S. c. 162, s. 47.
3. Ai'soii—
27. — A building used by a carpenter, who was putting up
a house near it, as a place of deposit for his tools and
window frames which he had made, but in which no
work was carried on by him, was
10
CUI.MINAI, DKiKHT.
Held, not " a build iiifj; UHod in carrviiifr on tlic tnido
of a carpenter " within 4-5 Vict. c. '21), k. H. Hiujitm v.
<S'm;7//, 14 Q. \\. rAi\\ H. S. c. 1(58, k. 1.
*2H. — The remains of ii wooden dwelling]; house, after a
previous tire, which left only a few rafters of the roof,
and injured the sides and floors so as to render it
untenable, and which was being repaired, was
IIiUl, not a building within section 7 of 8"2-33 Vict,
c. 22, so as to be the subject of arson, lirnina v.
Lohailir, 32 Q. B. 42i) : H. S. c. 108, s. H.
'2i). -Upon an indictment f«,r arson, the prisoner was
])roved to have rcjquested or procured one S. to set lire
to the house, telling S. tliat he had liis house insured,
and asked if he would not set lire to it. lie also stated
that "his insurance would run out next day, and that
he, S., must set the house on lire that night." 'J'he
evidence also shewed that a sum had been awarded
the prisoner for his insurance, in payment of which he
was seen to have a bill of exchange on Loiulon in his
possession,
Held, that under C. S. C. c. 93, s. 4, it is necessary,
wher(i the setting lire is to a man's own house, to prove
an intent to injure and defraud, although the words
"with intent thereby to injure or defrau 1 any person,"
introduced into the Imperial Act, are omitted in ours.
The imlictment alleged that the prisoner did incite,
etc., one F. 8., the said felony in form aforesaid to do
and commit, with intent then and there to injure and
defraud a certain insurance company called, etc.,
Ilcil, necessary to prove that the premises were
insure 1, but Draper, C..T., was of opinion that the
indictment would have l)een sufficient if it had ended
with the words " to injure and defraud,"" the insurance
oi'i'KNrics.
11
beiii^ a luatter of pi'oot", mid that the prisoner's state-
ment or admission, was evidenec sull[i(3ient to support
tlie indictment. I[a<j;artv. J,, dissenting,'. lienina v.
Ih-i/an.s, 12 ('. I'. 1()1 ; R. S. c. 1G8, s. 4.
80. in an indicttnent for arson, it is umiecessary to
ehar<;;e any intent, as our statute (differing from the
Enj^hsli Aeti does not make the intent part of the
crime. This omission, however, if a defect, wouhl
not be ground for anew trial, under C S. V . C. e. 118.
liriliiiu V (rrmnirond, 28 (). 15. 250: W. S. c. 168. s. 4 :
c. 174. s. IK).
:)1. -Out though the ii dietment is sufficient without alleg-
ing any intent, an intent lo injure or defraud must 1)(>
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<i v. McEUiiJott (('• Mciiits, '.\ Out.
Uep.': r))]-) {}. H. : W. S. c. \(\'2, s. :U\.
•K). — A ])arty accused of assault wilii intent to rob, may
be found guilty of simple assault. Ri(i)u<i v. (t'Xcill,
11 K. L. 384 ; 8 q. L. \\., 8 ; R. S. c. 174, ss. IIJI, Vj'l.
41. — Defendant was convicted of an assault ujjou a.
"constable while in tli(> 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.
><mith, M g. B. 552 : U. S. c. 174, s. VM.
Per Wilson, J. Fn this case there could have heen
no conviction for the assault, i)ecause the evidenci^
upon the trial for murder shewed that it did not
c-onduce to the death. Ibid. K. S. c. 174, s. 11)1.
45. — Upon an indictment for shooting with a felonious
intent, the prisoner, if acquitted of the felony, may he
convicted of common assault. Rciiinn v. CroiniH, 24
C. P. IOC); W. S. c. 174, s. li)l.
4(i. — 'I'o discharge a pistol loaded with powder and wad-
ding at a person within such a distance that he might
have heen hit, is an assault.
It was Iteld here, that there was sutiUcient evidence
of the prisoner having done this, and a conviction for
assault was upheld. Hid. U. S. c. 1G2, s. 13.
47. — An oti'ence against the Dominion Elections Act by
committing an aggravated assault upon the day of
voting, cannot be tried summarily. Rcffina v.
fjaroacJie, Regimi v. Lcmieux, 5 Q. L. U. 2G1, 1877 :
R. S. c. 178, s. 73.
48. — t^cire facias upon a recognizance to keep the peace
and be of good behaviour towards Her Majesty and
16 CltiMINAIi DIGEST.
all licr liop;c' HubjectH, nnd esijociiilly towards II. M.,
cluir^iii}^ iisi assault and i)reach of the poiice.
For tho crown a judgment of the court of quarter
sessions was proved, allinuinfr a conviction of defen-
dant before nuif^istrates on a cliarge of assaultinj^ II.
M. " by nsinj; insultiuf^ and abusive ]anf,'ua<^u to bim
in his own otVice, and on tbe j)ubli{! strt'ct, and by
WHiurt, liis list in a tbreateniufj; and niciuicinf; manner
to tbi! face and bead of tbe said II. M,"
Held, sulKcient proof of a breach of tbe peace,
Jlild, also, that defendant was properly convicted,
for tbe olt'ence charjred aniounttd to an assault.
Jiq/ina v. Ilaniier, 17 Q. B. 555 ; K. S. c. 1G2, s. 80.
40. — (]. S. C. c. Hi, probably applies only to common
assaults, etc. A charge of assaulting and beating
is not a charge of aggravated assault, and a complaint
of the former will not sustain a conviction of the
latter, though when tbe party is before the magistrate,
the charge of aggravated assault may be made in
writing and followed by a conviction therefor. In re
McKiniioii, 2 L. J. N. S. 324 ; 1{. S. c. 102, s. 30.
50. — Tbe court of (piarter sessions has power, in the case
of an assault, to pronounce a sentence of fine and
costs of prosecution, and imprisonment in case of
default. Oreiis v. Tai/lor, V.) C. P. 4i) ; R. S. c. 102,
s. 30.
51.— On motion to quash a conviction by two justices of
the county of Norfolk for an assault.
Held, 1st. That stating the offence to have been
committed at defendant's place in the township of
Townsend was sutticient, for C. S. U. C. c. 3, b. 1, s-s.
37, shows that township to be within the county.
OITKNCKH.
17
•iiul. That it WHS iimuM'csrtury to slicw on the I'lico
of till' conviction that coniitlainant prayed the ninj^iK-
tratt'H to proccod snniinaiily, for the form allowed by
C. S. C. c. 10;J, K. no, was follow«'il, and if there was
no such rccjiieHt, ami thercfoit! no jnrisditttion, it
should have been nhewn by alVidavit.
8rd. That it w.'is charly no objection that the
Hssanlt waH not allei^ed \o in- unlawful, ^'■•<i'uin v.
Sh<uf, 2:5 {). W. ('.If. : II. S. c. 178, a. IW.
."•2. — The jH'ayer for summary jurisdiction should appear
on the face of the conviction, even if not necessary on
the face of the information. /// re. Switzer ti; McKcc,
•)L J. '2()G; l\. S. c. 178, s. 73.
r>'.\. — 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<l<'4>«>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.
<S4. — The defendant agreed with B., then sheritf of the
county of Norfolk, to give him i'oOO and an annuity
of t'300 a year if ho would resign. B. accordingly
placed his resignation in defendant's hands. The
£500 were paid and certain lands conveyed to secure
the annuity ; and it was further agreed that in the
event of the resignation l)eing returned, and B. con-
tnuiing to hold the office, the money should be repaid
and the land reconveyed ; but B. did not undertake in
any way to assist in procuring the appointment for
defendant. The d-^fendant having been appointed by
the government in ignorance of this agreement, an
information was filed against him and sci. f<i. brought
to cancel his patent.
28 CRIMINAL DKIKST.
11(1(1, nn illo^al transaction within 5-6 Edw. VI.,
aihl that an information nii<j;ht be sustained under
that Act witiiout reference to the 19 (leo. III., which
cdcarly prohibited and nui(h' it a misdemeanour.
UciiiiKi V. Mercer, 17 (,). B. (iO'i.
Scmlilc, tliat the afjjreenjcnt wouUl Jilso have been
an otience at common hiw. The i<j;norunc(; of the
f:;overnment, which was averred in thi; information, as
to the illegal a!:];r(,'ement, was immaterial. Jhid.
1 1. Iliir^;l:ii'y —
85. — Burpihiry is not an offence within the Ashburton
treaty or the statutes of Canada passed to p,i\-c eti'ect
to it. [n re Bcc.hc, :} P. \\. 27^ ; 11. S. c. l42.
I*i. ('4»iiiiiiu'—
8(). — Section 18 of C. S. C. c. DO, makes it an offence to
have possession of any coin counterfeited to rcsembh'.
or any dies for the purpose of imitating:;, any foreign
<;old or silver coin described in the IGth section of the
Act. The {];old or silver coin tiiere described are any
coin of coarse g^oXA or silver resembling any coin
made by the authority' of any foreign state, and then
actually current there, though not current by law in
this province. An indictment under this section
alleged, that there was a certain silver coin known as
half-a-dollar struck by and current in the United
States, though not current by law in this province,
and that the defendants had in their possession
counterfeited coin, each piece resembling a piece of
the current coin of the United States of the value of
fifty cents, and called tlierein half-a-dollar, and also
dies used to counterfeit the current silver coin of the
United States called half-a-dollar, etc..
OFFKNCKH.
'21»
Held, on (leiniirrer, tluit the iiulictinont wiih bad, for
not alK'ginfj; tliut tlu; counterfeit coin wliich tlie
(U'feiidantH had, rosoniljlcd some gold or silver coin of
the I'nited States, hut that the alle<;ation as to the
dies was sufficient without alle^iuf^' that the silver coin
was not current in this province. Hf(i'uia v. Ticnicy,
21) Q. B. 1H1 ; It. S. c. 1()7, s. 1-2.
i:t. I'oiirraliii^: llirtli -
87. — On an indictuient for concealinf^ the birth of a child,
it appeared that the prisoner, who lived alone, had
[)laeiil the dead hody of the child behind a trunk in
the room she occupied, between the trunk and the
wall. On bein}4 charf^ed with haviufj; had a child she
denied it. sayinji^ she was sufferinf^ from cramjis, and
it was only after the doctor, who was called in, had
informed her that he knew that she had been delivered
of a child, and on being pressed by one of the women
present, that she pointed out wliere the body was, and
tlie woman went and got it, I'ntil so pointed out the
bod}' could not be seen by any one in the room,
Jlcld, that the evidence, more fully set out in the
report, was sufficient to go to a jury ; and the County
Court judge, before whom the prisoner was tried by
her consent without a jury, having found her guilty,
the court refused to interfere. Rcfiiini v. Pidu', BO
C. P. 40!) ; W. S. c. 1(52, s. 149 : c. 175, ss. 5, 18.
II. <'oiiM|»ii'si<-.v—
H8. — The plaintiff in error had been convicted on an
indictment for conspiracy to defraud by obtaining
goods on false pretences. On a writ of error it was
urged : — 1st, that the false pretences were not set up,
and 2nd, that the overt act disclosed a civil trespass
ao
CKIMINAL DKJKHT,
only, and conBeqiicntly that tlioy could not support an
indiotniimt for conspiracy,
Ifcltl, that the indictment for conHpiracy differs
from an indictnient for false pretences, the ofTc iic(( in
the former case heiufj; coin|tIete hy tlu^ comhination
and ai^reement, althou^di nothing he done in execution
of the conspiracy. Writ (puished. 'llutjier v. liviiinny
5 L. N. 102; U. S. c. 173, s. 20.
8!). — Fpon an indictment for conspiracy to procure hy
fraud the return of one F. as a memhor of the
lejj[islative assemhly,
llchl, that it was clearly unnecessary to })rove that
all the defendants, or any two of them, actually met
together and concerted the proceeding carried out ; it
was sufilicient if tlu; jury was satisiied from their
conduct and from all the circumstances, that they
were acting in concert. Hi(fin<t v. FcUon-ca, 11) Q. H.
48 ; K. S. c. 173, s. "iO.
1)0. — An indictment for conspiracy with intent to defraud
which alleges merely that the defendants did combine
to secrete and make away with the property of one of
them, A. "-'tli intent to defraud a creditor of a sum
due to ,'ithout alleging that A. was insolvent,
anr^ was in contem})hition of insolvency the
se g was carried out, is insufficient. Rcjifia v.
Steniberi), 8 L. N. 122 Que. ; li. S. c. 173, s. 2().
91. — Where the defendants were charged with conspiring
to cheat and defraud their creditors, and pleaded not
guilty,
Held, that, in an indictment for conspiracy, an
offence prohibited by penal statute must be set forth.
Regina v. ]ioij, et al, 11 L. C. J. 89 ; 11. S. c. 173, s. 2(i.
^
Ol'FKNCKS.
81
\t'2. — And held, also, that tho count in which tho con-
spiracy '\H allejjed niUHt stnto of what thinj^ or thiii;,'s
(lofendantH intended to defraud their creditors. Ihiil.
\K]. — Indictment char^'ing that defendants, If. C. and I).,
were township councillors of East Nissouri, and F.
treasurer ; and that defendants intendinj^ to defraud
the council of I'liOO of tho money of said council,
falsely, fraudulently, and unlawfully did coud)ine and
conspire, unlawfully and fraudulently to ohtiiin and
get into their hands, and did then, in pursuance of
such conspiracy, and for the unlawful purpose afore-
said, unlawfully meet tofj^ethcr, and fraudu.ently and
unhiwfully (^ei into their hands l'IU)0 of the money of
said council, then heinpj in the hands of said F. as
such treasurer as aforesaid,
Ih'lil, bad, on writ of error. Horseman v. Rroina,
If) Q. B. 518 ; li. S. c. 173, s. 2G. See Bribery <inte,
Nos. 80 f'/ seq.
15. Eiiiboxxloiiioiit : rraiidM l>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 ]\[<ijesty to enlist.
Held, bad. /// re Martin, 8 P. R. 2U8.
115.
IM. i]x|>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 a<j;ent to sell machines to him, which were
sent to Toronto, in the county of York, and delivered
to him at Seaforth,
Held, that the offence was C()m])lete in Huron, and
could not be tried in York. Riui'ina v. lu'iflicnhciincr,
26 C. r. 1;M); ]{. S. c. 104, s. 77 ; c. 174, s. 10.
120. --Defendant was indicted for obtaininj;' by false pre-
tences from ]\I. an order for the payment of it>800.6".>,
the property of P., with intent to defraud. It appeared
that a suit was pendin<f in chancery, in which the
defendant, who was a solicitor, but had been struck off
the rolls, was acting for P. Defendant procured Y.,
his clerk, to write a praecipe in the name of McG., who
had acted as counsel on defendant's instructions, for
$800.09 of the moneys standinjj; to the credit of the
cause, and to si^n McG.'s name to it. V. left it with
M., the accountant in chancery, who prepared a check
payable to P. or order. Defendant then got one H., a
solicitor, to <j;et the check from the accountant and
8i{4;n McG.'s name to the receipt, on which H. handed
'^"•ij
III
OFFKNCEB.
48
the cheque to defendant, who }^ot P. to endorse it, and
paid P. .f 400, keepin*^' tho rest for costs,
Jfnl'\ that the dcifcndant was ri<^htly convicted, for
he oli-ained the check from tho accountant hy fraud
and for<fery, and with intent to defraud him, and h«!
was not the less j^uiity hecaiise P. was entitled to the
money, and there was no sufficient proof of intent to
defraud P. licninax. I'drkiiison, 41 Q. B. .'345; It. S.
c. 174,8.77; c 174, s. 112.
121. — Procurinj; ret^istration as a physician under 87 Vict.
c. 30, 0., by false or fraudulent representation. See
l{t'<iina\. CoU('(je of rhijsivians, AA Q. B. 146.
122. — In an indictment for obtaining' <^'oods by false pre-
tences, it is not necessary to mention the false pre-
tences. Re()iii(t V. fjur'unn', 4 W. L. 411, (^. 13. 1872 :
li. S. c. 174. schedule No. 2.
12ii. — A shareholder in an incorporated company, actinj^ as
its agent, jj;ave a promissory note to B., anothci' shurc-
holder in the company, for $250, to meet a protestdl
draft on the company for $200, due for insurance,
and A. afterwards stated at a meetm<>; 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<'tlin<i V. St. Louis, et al., 10 L. C. II 34, Q. B. ; R. S.
c. 104, s. 78.
124. — On an indictment for false pretences the prosecutor
is not hound to deliver to the defendant the particulars
of the crime charged a<j;aiMst him, on which the indict-
ment is founded. Rcijina v. Seitccal, 8 L. C. J. 246,
Q. B. 1802 : W. S. c. 174, Schedule No. 2.
12;"). — Proof that the defendant had ohtained from the pro-
secutor a proujissory note, on a promise to pay the
plaintiff what he owed him out of the proceeds of the
note when discounted, is not sufficient to sustain a
conviction on an indictment chargmf^ the defendant
with obtainiuff a signature with intent to defraud.
Reriina v. J'irknp, 10 L. C. J. 310 .;• 2 L. C. L. J. 35 ;
1{. S. c. 104, s. 78.
126. — The defendant was indicted for obtaining goods
with intent to defraud, and convicted on evidence
which showed that he had ohtained from T. W. R. an
order for the delivery of the goods, promising to pay
cash but failing to do so, and becoming insolvent a
few days after. He had had other transactions with
T. W. R., and met his engagements in connection
with them.
r^T
OKFKNCEH.
45
//*'/*/, 0)1 a reHci'vod ciiho, that tlio conviction was
suHtaiiied by tin; evidence, and would not be dinturbed.
Iteijinn v. McLhmuUL 2 L. C. L. J. M.
127. — A defendant indicted for niiHdemeanor in obtaining'
money under falHo pretences cannot, under C. S. C. c.
iM), H. (52, bo found guilty of hirceny. That chiiise
only autliori/es a conviction for tlie misdenieaiiom',
thou;^h tlie facts proved amount to larceny. Where
a defendant on such an indictment has been found
guilty of larceny,
Uchl, that the court had no power, under C. S. I'.
C. c. 112, H. JJ. to direct the verdict to be entered as
one of "f^uilty," without the additional words.
lU-iiina V. /wr/m/, 21 Q. B. 523 ; R. S. c. 174, s. Vd(\.
128. — An indictment tluit defendant by false pretences did
obtain board of the goods and chattels of the prose-
cutor,
Ilchl, bad, the term "board" bein^- too general.
Reilina v. McQiKirrif, 22 Q. 13. (iOO.
129. — One 1),, being postmaster at Jierlin, transmitted to
defendant at Toronto several post-office orders payable
there, whi(;h defendant presented and got cashed, but
it appeared afterwards that the moneys thus obtained
had never been received by D. for defendant, and that
frauds to a large extent had been thus committed.
Defendant having been convicted upon an indictment
which charged him with unlawfully, fraudulently, and
knowingly obtaining from our Lady the Queen these
suras, of the moneys and property of our said Lady the
Queen, with intent to defraud.
Held, that the indictment was good : that the 56th
section of the Post-Office Act, C. S. C. c. 31, was not
|yi
1 ! ■"
J tli
46 CRIMINAL DIGEST.
applicable to the case ; that the money was properly
charged to he the money of the Queen, not of the
post-master ; and that it was unnecessary to allep;e an
intent to defraud any particular person, liemarks as
to the extensive nature of the provision on which the
indictment was framed, C. S. C, c. 92, s. 7H,
Scinhle, that defendant might also have been pro-
perly convicted under another count of the indict-
ment, charging him with having obtained the money
by false pretences. Remind v. Da^scuicr, *21 Q. ]^. 281 :
R. S. c. 174, s. 112.
180. — Where a person tenders to another a ])romissory
note of a third party in exchange for good?, thougii he
says nothing, yet he should be taken to affirm that
the note has not to his knowledge been i)aid, either
wholly or to such an extent as almost to destroy its
value,
Held, that on the evidence in this case it was
properly left to the jury to say whether the note for
$100, which defendant gave to the prosecutor for the
full amount, had or had not been paid excei)t the value
of half a barrel of flour ; and that the conviction was
warranted. Regina v. Davis, 18 Q. B. 180 ; E. S.
c. 164, s. 78.
131, — The prisoner represented to the prosecutor that a
lot of land, on which he wished to borrow money, had
a brick house upon it, and thus procured a loan, when
in fact the land was vacant.
Held, that he was properly convicted. Regina v.
Hiippel, 21 Q.B. 281 ; B. S. c' 164, s. 78.
132. — The prisoner, with one D., whose note he held, came
to the store of H. Sc. F., where an agreement was
'fl
OFFENCES.
47
entered into between the parties, that I), would pay
for all the goods furnished by H. tV F. to the prisoner,
on the amount being endorsed on his (D.'s) note, held
by the prisoner. The prisoner several times called at
H. Sc F.'s with the note mentioned, obtained goods,
and had the amount endorsed on the note. Afterwards
he called without the note and got goods, on his
promising to bring the note within a day or two to
have the amount endorsed thereon. Prisoner saw D.
the day after, and directed him not to pay anything
more than the amounts endorsed on the note, and he
never after presented the note to have the amount
endorsed thereon,
IlchJ, that there was no false representation or
pretence of an existing fact, but a mere promise of
defendant, which he failed to perform, ru'i/ina v.
Bt'itles, 13 C. P. 007 ; K 8. c. 164, s. 78.
133.— 7/e/r^, that defendant (who was indicted for false
pretences) could not on the indictment and evidence
in this case be convicted of larceny under C. B. C. c.
99, 8. G2.
QiKcre, as to the meaning of that clause. Ibid.
R. S. c. 174, s. 196.
■1
134. — The prisoner sold a mare to B., taking his notes for
purchase money, one of which was for $25, and a
chattel mortgage on a mare as collateral security.
After this note had matured he threatened to sue, and
B. got one R. to pay the money, the prisoner promising
to get the notes from a la\,^, .r's office, where he said
they were, and give them up next morning. This
note, however, had been sold by the prisoner some
time before to another person, who afterward sued B.
upon it, and obtained judgment,
48
CRIMINAL DIGEST.
Held, that the prisoner was properly convicted of
obtaining the $25 by false pretences, lieffina v. LeVy.
23 Q. B. 340; li. S. c. 1G4, s. 77.
135. — The indictment charged one J^. witli obtaining by
false pretences, from one J. T., two horses, with intent
to defraud, and that the defendant was present aiding
and abetting the said B. the misdemeanour aforesaid
to commit,
Held, good, defendant being charged as a principal
in the second degree. Reg'uia v. Connor, 14 C. P. 529 ;
E. S. c. 145, s. 7.
18G.— The term " valuable security " used in C. S. C. c. 92,
8. 72, means a valuable security to the person who
parts with it on the false pretence ; and the inducing
a person to execute a nv rtgage on his ])roperty is
therefore not obtaining from hiui a valuable security
within the Act. Re<iin<i v. Bnidi/, 26 Q. B. 13 ; R. S.
c. 104, s. 2.
137. — Evidence that the prisoner obtained by false pre-
tences a cheque on a bank which he subsequently
cashed, will not support an indictment for obtaining
money under false pretences. Hegina v. Maijnard, 2
L. N. 357, 1879 ; E. S. c. 164, s. 2.
138. — An indictment for obtaining from A. $1,200 by false
pretences, is not supported by proof of obtaining A.'s
promissory note for that sum, which A. afterwards
paid before maturity. Regina v. Bradi/, 20 Q. B. 13 ;
R. S. c. 1G4, 8. 2.
139. — G., the prisoner, and another were in a boat on the
the bay, and they agreed to take M., the prosecutor,
to meet the steamer, G. sayiuj uhe charge would be 75
m
OFFENCES.
49
cents at the steamer. The prosecutor, accortling to
his own account, took out a $2 bill at the steamer,
saying he would get it changed. Prisoner said, " I'll
change it," upon which the prosecutor handed it to
him, and he shoved o& with it. Other witnesses re-
presented the prisoner's statement to be that he had
change. The prosecutor did not say what induced
him to part with the money,
Ilehl, that a conviction could not be sustained.
Jieiiimt V. (ianmAl, 2() Q. li. 812 ; l\ S. c. 1G4, s. 77.
140. — Held, that the indictment for false pretences in this
case was clearly suflicient, as it followed exactly the
form sanctioned by 18 Vict. c. 92. Raiina v. Davis,
18 Q. B. 180 ; 1\. S. c. 174, schedue No. 2.
141. -A municipality having provided some wheat for the
poor, the defendant obtained an order for fifteen
bushels, described as '• three of golden drop, three of
fife, nine of milling wheat." Some days after he went
i)ack, and represented that this order had been acci-
dentally destroyed, when another was given to him.
He then struck out of the first order the words, " three
of golden drop, three of fife," and presenting both
orders, obtained in all twenty-four bushels. The
indictment charged that defendant unlawfully, fraudu-
lently and knowingly, by false pretences, did obtain
iin order from A., one of the municipality of B.,
requiring the delivery of certain wheat by and from
one C, and by presenting the said order to C, did
fraudulently, knowingly, and by false pretences,
procure a certain (puintity of wheat, to wit, nine
bushels of wheat, from the said C, of the goods and
chattels of the said nuniicipality, with intent to
defraud,
F.c.n. 4
: !■
i:
60 CRIMINAL DIGEST.
Held, sufficient in substance, not being uncertain
or double, but in effect cbar^iiing tbat defendant
obtained the order and by presenting it obtained the
wheat by false pretences,
Held, also, that the evidence, sot out in the case,
was sufficient to sustain the conviction. Regina v.
CamphvU, 18 Q. B. 413 ; R. S. c. 1(54, s. 78.
142. — In the spring of 1882, prisoner went to one McG., a
large furniture dealer at Montreal, and represented to
him that he was about to open a hotel which he had
rented at Ste. Therese, that he had made considerable
repairs to the hotel and was rather short of money.
He declared that he wanted for his hotel about eight
or nine hundred dollars worth of furniture, which he
proposed to purchase on credit, offering as security a
mortgage upon an immovable property' of which he
was proprietor at Longue Pointe, and which he repre-
sented to be worth from $3,000 to $4,000 over and
above all charges and incumbrances.
As McG. appeared to have some hesitation about the
sufficiency of the security offered, prisoner proposed
to give his property in payment for the furniture he
required, but on the two following conditions, Ist.
That McG. would assume the payment of a certain
annual rent of about $200 to one Mrs. H. ; and 2nd.
that he would transfer back the property in question
at the expiration of a period of three months, on McG.
being paid the full amount of his bill. The latter
condition M'as particularly insisted upon by the
prisoner. The bargain proposed was agreed to by
McG., and upon a deed with right of redemption being
.consented to by tlie prisoner of the pro[)erty men-
tioned above, he sold and delivered to prisoner the
:$800 worth of furniture required by the latter.
■nffij
OFFENCES.
61
Prisoner had at first ordered the furniture to he
delivered at the railway depot, but soon after counter-
manded that order and requested it to be delivered at
his residence at St. Jean Baptiste village, allcn;ingtliat
the hotel was not quite ready for it. At the exjiir-
ation of the stipulated time, no money being forth-
coming, and no demand lor the retrocession of the
immovable property being asked for, McG. became
alarmed and made enquiries about prisoner and the
property at Lougue Point. Me then discovered 1st,
That the payment to Mrs. H. for a sum of $200 a year
was more than the property could produce yearly ; *2nd,
That prisoner had never rented any hotel at Ste.
Therese, nor was he to open any one there or else-
where ; 3id. That prisoner had played the same trick
upon three other furniture dealers, giving them in pay-
ment other properties equally valueless ; 4th. That
all the furniture purchased from him by prisoner had
been sold by the latter below cost price, either by
private sales or at auction. J3eing cross examined,
McG , the complainant admitted that the representa-
tion which had induced him to part with the furniture
was solely that the immovable property offered him
was worth between $3,000 and $4,000 over and above
all encumbrances, and not the story told by prisoner
about his being about to open an hotel at Ste. Tlierese,
it being a matter quite indifferent to him where the
furniture was put, if he had received the full value of
what he had sold.
Evidence was then offered on behalf of the crown
to show that a similar fraud had been lately prac-
ticed by the prisoner upon other furniture dealers.
This was objected to by counsel for the prisoner,
on the ground that no otiier charge could be proved,
except that laid in the indictment. In support
11
62 CRIMINAL DIGEST.
of that pretension, section 5 of the Larceny Act,
and section dvd of chapter 21') of the 40fch Viit.,
(1877) were quoted, tliose sections, it was alleged,
pointing out in what instances the common law rule
might he departed from. This ohjection was overruled
hy the presiding judge, who held that the evidence
offered could he received in order to prove the intent
of the prisoner.
At the close of the case for the crown the prisoner's
counsel suhniitted that the crown had failed to make
ont a case against the prisoner, and urged the following
grounds,
1st. That the false representation with respect to
the opening of an hotel at Ste. Therese, not having
heen that which induced McG. to part with his pro-
perty, it formed no part in the ingredients forming
the crime of obtaining the property by false pretences.
2nd. That the false representation concerning the
value of the property offered in payment, could not
form the basis of a charge like the present one.
The court maintained the defence on both of these
grounds and instructed the jury to acquit the prisoner.
lieoina v. Darncher, 12 R. L. 097 ; R. S. c. 164, s. 78.
14H. — A clause of a deed by which the borrower of a sum
of money falsely declares a property well and truly
to belong to him, may constitute a false pretence.
Rt'oina v. Judah, 7 L. N. 371, 385, 396; 8 L. N. 124 ;
R. S. c. 164, s. 78.
ai. Forcible Entry—
144. — On an indictment for forcible entry and detainer of
land, evidence of title in defendant is not admissible.
Regina v. Cokely, 13 Q. B. 521.
I Wll
OFFENCES.
53
1-15. — On a question reserved for the court in appeal, upon
the conviction of the prisoner for forcible entry into a
dwelling-house,
Held, that the prisoner having entered the house
through an open ooor, and one of *he parties v,'ith
him having been sent out to push in tiie windows, the
prisoner himself taking them off their hinges, the
conviction ought not to be disturbed, Hcyimi v.
Martin, 10 L. C. R. 435, Q. B. 18(50.
\ 4(). —And where the revenue officer, in seizing a distillery,
had also seized the out-buildings belonging to the
same premises, and the proprietor entered them by
force, and in doing so injured one of the employees
of the government,
Held, on an indictment, tlu.t the proprietor had a
right to enter the buildings, and that by force if neces-
sary, and that in doing so he had committed no offence
against the government. Retina v. Spelninn, '2 R. L.
701), Q. B. 1H()7.
117. — Defendants, employees of the Great Y/estern Kail-
way Company, in obedience to orders from the com-
pany, went upon the land in question, then in the
possession of the Stratford and Huron Railway Cora-
pau}', and occupied by its emi)loyees. No actual force
was used, but the latter had good reason to appre-
hend that sufficient force would be used to compel
them to leave, and they left accordingly,
Held, that this was a forcible entry witnin the
statutes relating thereto. The judge at the trial
having granted a writ of restitution,
Held, that such writ is in the discretion of the
presiding judge, which had been properly exercised
here. liegUia v. Smith, et al., 43 Q. B. 369, Ont.
64
CRIMINAL DIGEST.
148. — The court refus^ed a writ of restitution after a con-
viction of forcible entry and detainer, where the
premises were a crown reserve, the lease of which had
expired. liej v. Jachson, Dia. 50.
149. — An inquisition for a forcible entry, taken under d
Hen. VIII. c. 9, must shew what estate the party
expelled had in the premises, or the inquisition will
be quashed and restitution awarded. The inquisition
is also bad if it appear to the court that the defendant
had no notice, or that any of the jury had not lanuB
or tenements to the value of 40s., or that the party
complaining was sworn as a witness. MitcJwl v.
Tlwiiijjs<»i, Rex v. MfKreavy, 5 0. S. 620, 625.
150. — The defondants applied for delay in order to give
evidence of title, but on the prosecutor consenting to
waive restitution in the event of conviction, they were
compelled to go to trial, and were convicted. A writ
of restitution was afterwards refused : though,
Semhle, that it would in any case have been impro-
per to delay the trial for the reason urged.
Connor, 2 P. R. 139, C. L. Cliamb. — Robinson.
Ucqina v.
151— Semble, also, that where the prosecutor has been
examined as a witness, restitution should not be
granted. Ibid. See Evidence ; post.
152.— The defendant having been convicted at the Quarter
Sessions on an indictment for forcible entry, was fined,
but that court refused to order a writ of restitution,
and the case was removed here by certiorari,
Held, that it was in the discretion of this court
either to grant or refuse the writ; and under the
circumstances it was refused, llegina v. Wightman^.
29 Q. B. 211.
Itl
1
OFFKNCES.
55
aa. roi"B<'i*y—
158. — Forgery is the falsely nuiking or ultering a docu-
ment to the prejudice of another hy making it appear
as the document of that person. A simple lie reduced
to writing is not necessarily forgery. A bank clerk
who makes false entries in the hank hooks under his
control for the purpose of enabling him to obtain
money improperly is not guilty of forgery. Rciiina v.
Bidchstone, 7 Can. Law Times 17i), Man. Ai)peal ;
R. S. c. 165, 8. 3. See In /v Smith, 4 P. R. 215 for
a further definition of forgery.
154. — The prisoner, at Woodstock, with intent to defraud,
wrote out a telegraph message purporting to be sent
by one C. at Hamilton, to McK. at Woodstock, author-
izing ^IcK. to furnish the prisoner with funds, which
was delivered to McK., and upon the faith of it McK.
endorsed a draft for S85, drawn hy the prisoner on C,
on which the prisoner obtained the money,
Held, that the prisoner '.as guilty of forgery.
Ref/ina v. Stewart, 25 C. P. 440; R. S. c. 1(55, s. 4o.
155. — On an indictment for feloniously offering, etc., a
forged note commonly called a provincial note, issued
under the autliority of 29-30 Vict. c. 10, Ca. for the
payment of $5, it ai)peared that the prisoners had
passed olT a note purporting to be a provincial note
under the statute, knowing that the figure 5 had been
pasted over the figure 1, and the word five over the
word one. No evidence was given that the note so
altered was a note issued by the government of
Canada, but it was shewn further, that when the
attention of the prisoners was called to the alteration
they said " give it back if it is not good," and that on
its being placed on the counter one of them took it up
%.■!
M
fiV) CUnilNAIi DKJKS'I".
aiul rofiificd to return it, or substitute good inonoy
for it,
Hrhl, that lookiii;^ at the jiartic-ular cliaracter of the
forf:;ory — i.e., an altcrjition — ami the conduct of tlie
prisoners, the onus was on then? ♦^odisfjute the validity
of the writing, if its invali(l;iy would he a defence,
and a conviction was sustained. Ucnina v. Portia,
ft ill, 10 Q. B. 214 ; K. S. c. 1(55, s. '22.
I ;")(). Making false entries in a book does not constitute
the crime of forgery, according to the laws of l''ngland
or of Cianada. Laiiiiriindc, I'l.vp. 10 L. C. J. 2H0.
IT)?. — On an indictnuint fur forgery of the prosecutor's
name as endorser of a [)roniiss()ry note, the prosecutor
swore that he had not endorsed the note, that it was
not his writing, that he had never authorized the
prisoner to sign his name to the note, and that he
was himself unai)le to write his name, being in fact a
marksman ; and a son of his also swore that his
father was nnable to write his name, and was a marks-
man. The prosecutor also swore that on other
occasions he had endorsed for the prisoner, making his
mark, and had sometimes authorized the prisoner to
write his name,
llch}, Camekon, J., dissenting, that a sufficient
Itrima facie case was thus made out : that the prose-
cutor's evidence was duly corroborated within the
meaning of 32-33 Vict. c. 18, s. 54, D., and that the
onus was then on the prisoner to shew that he was
authorized to use or write tlie prosecutor's name,
Per Camkkon, J., that the part of the prosecutor's
evidence which required to be corroborated, was not
that he could not write, but that on this occasion he
had not authorized, and on this point there was no
■^]
OFFKNCKS.
57
con'()l)oration. lieijina v. lianncnuan, \\\ (). B. HI? ;
It. S. c. 171, a. 218.
1'>S. — 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. Ilr<iiii(i v. McXeriii, 2 H. li. 711 ;
R. S. e. 1(55, a. 2H.
1 5!) — A fugitive from Canada was surrendered hy the
United States authorities on a charge of foi'gery, that
heing one of the ()trences enumerated in the treaty.
The prisoner was put on his trial, and convicted for
feloniously uttering a forged promissory note for the
payment of money. On a case heing reserved on an
ohjection that the prisoner could not he tried for any
oll'cmce hut that for which he had heen extradited,
Held, that the charge of forgery included the lesser
charge of uttering forged paper, and the conviction
was maintained, lieijuin v. Paxton, 3 L. C. L. J. 117.
UO. — In an indictment for forging a receipt it must be
alleged that such receii)t was either for goods or
money, etc., as mentioned in C. S. C. c. " s. 9;
lieiiina v. McCnrkcU, 8 L. C. J. 28;l ; 11. S. c. 165,
29.
li'l. — But in such an indictment it is not necessary to
allege that the prisoner committed the offence with
intent to defraud any particular person. lieiiina v.
Hathaway, 8 L. C. J. 285 ; li. S. c. 174, s. 114.
162. — The prisoner was a clerk in the office of the comp-
troller of the city of Newark, New Jersey, U.S.A.,
r,8
CRIMINAL DIUEHT.
hiH duty bcinji to make proper cntrieH of raoneyn
rect'ivod for taxes in the official books of the comptroller
provided for that purpose. Having received a sum of
money for taxes, Ik; entered the correct amount at
first, and then erasing the true figures he inserted a
less sum, with intent to benefit himself by the abstrac-
tion of the difference between the two, and to deceive
the comptroller and the municipality,
llt'ld, that the offence was forgery, and that the
prisoner had been properly committed for extradition.
It is not necessary to constitute the crime of forgery,
that another's right shall have been actually preju-
diced, the possibility of prejudice to another is
sutKcient ; and if puidication be necessary, the books
in question being of a public character, the forged
entry in them must be regarded as having been
published as soon as made.
Si'mhle, per Proudfoot, J. — Tt is not necessary for
purposes of extradition that the crime charged should
have been such an act as would have constituted
that crime at the date of the Ashburton Treaty. It is
surticient if it constituted the crime in question at the
date of its alleged commission. /// re Willuun A. Hall,
3 Ont. Rep. 3B1, Q. B.
163. — The prisoner, who was collector of the county of
Middlesex, in the state of New Jersey, kept a book in
which to enter the payment and receipts of all moneys
received by him as such collector, and which was the
principal book of account kept by him. The book
\va i purchased with the money of the county, and was
kept in the collector's office, and was left by him at
the close of his term of ofifice ; it was by statute open
to the inspection of those interested in it, and con-
OFFRNCKH.
69
tained the ccrtiticato of the county auditorH as to the
correctness of the m Iters therein contained.
field, that the hook was the ])uhlic property of the
county, and not the private property of the prisoner.
After the hook had been examined by the proper
auditors as to the amounts received and paid out by
and through the prisoner as such collector, and a
certificate of the same made by them, the prisoner,
who was a defaulter, with intent to cover up his defal-
cation, altered the book by makinj^ certain false entries
therein of moneys received and paid out, and changing
the additions to correspond. Some of these entries
were by the prisoner himself, and others by his clerk
under his direction, but the clerk on finding that such
entries were false changed them back.
Held, that this constituted forgery at common law,
as well as under our statute 32-33 Vict. c. 19.
Held, also, that under the Extradition Act of 1877,
40 Vict., c. 25, D., it is essential that the offence
charged should be such as if committed here would be
an offence against the laws of this country. The
offence, however, was also proved to be forging by the
laws of New Jersey. In re Jarrard, 4 Ont. Rep. 265,
Q. B.
164. — The alteration of a $2 Dominion note to one of the
denomination of $20, such alteration consisting in the
addition of a cipher after the figure 2, wherever that
figure occurred in the margin of the note, was forgery,
and that the prisoner was rightly convicted therefor.
Reiiina v. Bail, 7 Ont. Rep. 228, Q. B. ; R. S. c. 165,
8. 13.
165. — The prisoner was indicted along with W. ; the first
count charging W. with forging a circular note of the
J
I M
^
Vt I
I (
C ClilMINAL niGKST.
National Bank of Scotland, and the second with
uttcrinj:; it knowing it to be forged. The prisoner was
charged as an accessory before the fact. Evidence
was admitted showing that two persons named ¥. and
H. had Ijeen tried and convicted in Montreal of ntter-
ing similar forged circular notes printed from the same
plates as those uttered by W. : that the prisoner was
in Montreal with F., they having arrived and registered
their nan s together at the same hotel, and occupied
adjoining rooms ; that after F. and H. had been con-
victed on one charge, they admitted their guilt in several
others ; and that a number of these circular notes
were found on F. and II., which were produced at the
trial of the prisoner. Before the evidence was
tendered, it was proved that the })risoner was in com-
pany with W., who was i)roved to liave uttered similar
notes. I^lvidence was also admitted shewing that a
large numb .r of the notes were found concealed, at a
place near where the prisoner had becm seen, and were
concealed, as was alleged b}' him, after W. had l)een
arrested,
Hchi, that the evidence was properly received in
proof of the guilty knowledge of the prisoner. ]ie;iiiia
V. Jinit, 10 Out. lUp. 557, Q. B. ; 5 Can. Law Times
58'J.
l(i(). -The plaintiff in error, was indicted foi' having
feloniously forgod a certain promissory note, and by a
second count he was charged with having feloniously
uttered a promissory note with intent to defraud. The
prisoner demurred to the indictment, but the demur-
rer was overruled, and he was convicted and sen-
tenced to one year's imprisonment. He applied to
have a case reserved, but was refusr^d. and now he
brought the same objections befor che court by
*A
•■* • *4
■J''. If
OFFKNCES.
(;i
means of a writ of error. The f::;roun(ls of error were,
first, that it was not stated in the indictment that the
promissory note alleg(;d to have hcen forged, was for
the payment of money, and, secondly, that th(! note
was not sut'tic. ..tly tlescrihed in the indictment. It
was merely stated that it was a promissory note.
Section 4!) of the statnte covered the second objec-
tion, it being no longer necessary to describe the note
in the indictment. There remained the first objection
complaining of the absence of the words " for the
payment of money." In the form a^ nended to the
statute, there appeared the expression " promissory
note, etc." did the " etc." refer to the words " for the
payment of money," or did the " etc." refer to the
other instruments ? There was a doul)t as to what it
referred to, and therefore the form was not clearly
indicative of the intention of the legislature. The
court had, therefore, to look into the precedents. A
great many had been cited, but none of them touched
this very (]uestion. Sonie were under the old law,
and tlie decisions did not apply. The case, then, was
in this position : the words " for the payment of
money" were in the enacting clause of <"he statute,
and there was no offence if it was not a promissory
note " for the payment of money." Against this it
wjis urged that a promissory note, under our civil
code, cannot be for Miy thing else than the payment of
money. It might bo observed that the words formerly
applied to bills of exchange as well. Now the words
"for the payment of money" were not added in the
case of bills of exchange, but the legislature had left
attached to tlu^ oft'ence of forging a promissory note
the condition that it must be for tho payment of
money. When the c -irt referred to indictments in
England it was impossible to find one in which the
i
<2
CRIMINAL DIGEST.
words " for the payment of money" were not found,
unless the instrument was described eo as to show
that it was for the payment of money. In the United
States also this was the universal practice. It would
be a dangerous practice if the court were to allow
indictments to be drawn in a form different from that
prescribed by the law and universally practised up to
the present time. The counsel for the crown was not
able to cite a single instance where these words had
been omitted. The court had examined a number of
indictments from among the records of the court, and
in every case the v;ords were inserted. The court was
not dispose;! to make a precedent which would sanction
a departure from this practice. licfiiiKi, v. Kellij, 3
Steph. Dig. 222, Que.; K. S. c. 1G5, s. 28.
167. — The prisoner Cunningham was indicted and tried at
the October Term, 1884, of the Supreme Court of
Nova Scotia at Halifax, Macdonald, C.J., presiding.
There were three counts in the indictment, charging,
1. That the said James Cunningham did feloniously
offer, utter, dispose of, and put off, knowing the same
to be forged, a certain check or order for the payment
of money, which said forged order is as follows, that
is to say —
" No. E. 43460. " Halifax, N. S., Feb. 13th, 1884.
" Merc! ants' Bank of Halifax :
" Pay William McFatridge, or order, two hundred
and twenty-four dollars and seventeen cents ($224.17.)
** (Signed) " Longaud Bugs.
And endorsed as follows : — " W. McFatridge," with
intent to defraud.
■■^^
•til
OFFENCES.
63
2. That the said James Ciinninf^ham, afterwards, to
wit, oil the day and year aforesaid, haviiij]; in his
custody and possession a certain other order for the
payment of money, which said hist- mentioned order
is, as follows, that is to say —
" No. E. 434G0. " Halifax, N. S., Feb. 13th, 1884.
" Merchants' ]3ank of Halifax :
" Pay William McFatridge, or order, two hundred
and twenty-four dollars and seventeen cents ($224.17.)
" (Signed, " Longahd Bros."
He, the said -Tames Cunningham, afterwards, to
wit, on the day and year last aforesaid, at Halifax
aforesaid, feloniously did forge on the back of said
hist-inentioned order a certain indorsement of said
order for the payment of money, which said forged
indorsement is as follows, that is to say — " W. McFat-
ridge," with intent to defraud.
3. That the said James Cunningham, afterwards, to
wit, on the day and year aforesaid, feloniously did
offer, utter, dispose of and put off, a certain other
forged order for the payment of money, which forged
order is as follows, that is to say —
" No. E. 43400. " Halifax, N. S., Feb. 13th, 1884.
" Merchants' Bank of Halifax :
" Pay William McFatridge, or order, two hundred
and twenty-four dollars and seventeen cents ($224.17.)
" (Signed,
LoNGAUD Bros."
with
And endorsed " W. McFatridge." With intent
thereby then to defraud.
()4
CRIJIINAL DIGEST.
Counsel for the prisoner, before the jury Avas sworn,
pleaded to the jurisdiction of the court on the ground
that the i)Klictnu'nt chiir;:e(l an offence or offences
different from that for which the prisoner was extra-
dited, to which plea the attorney-f^eneral demurred.
Judgment was pronounced, sustaining the demurrer
and ti)e trial proceeded. The prisoner was convicted
on the th'st and third counts of the indictment, and
acquitted on the second. At the close of the trial,
counsel for the prisoner renewed his ai)plication, and
the C. J. agreed to reserve for the opinion of the judges
and submitted :
(1) Whether the prisoner was indicted and tried for
another and different offence, or other and different
offences, than that for which he was extradited at the
instance of the Government of Canada ; and if so.
whether the court had jurisdiction to try and convict
the prisoner of such offence or offences.
(2) Whether the evidence on the part of the crown,
as reported herewith, is sufticient to sustain a convic-
tion on the first and third counts of the indictment or
on either of those counts. The papers put in evidence
on the trial were to be considered and read as part of
the case. The majority of the Supreme Court of Nova
Scotia (Rigby, Smith and Tliompson, JJ., McDonald.
C.J., and Witherbe, J., dissenting),
Held, that the })risoner was properly convicted on
the third count.
/-*(;/• EiGBY, J., delivering the judgment of the court.
Before the endorsement of the original cheque it was
an order for the payment of the sum named to
McFatridge, and to him only ; but when endorsed it
became literally an order for the payment of such sum to
whomsoever shoul present it ; and as the evidence was
OFFENCES.
(;5
k\ on
^or.rt.
; was
(1 to
5e(l it
um to
was
sufficient to justify the jury in concluding that it was
uttered by the prisoner, knowing that the endorse-
ment was forged, it would appear at first sight that
the verdi(;t upon the third count at least was sustained
by the evidence, which is one of the questions referred
to us under the case reserved. It was contended,
however, on behalf of the prisoiier, that as the
Dominion Act ;}'2-8;} Vict. c. 11), provides, especially in
s. 2(i, for the offence of knowingly uttering an order
for the payment of money with a forged indorsement,
that the verdict on the count in question was not sus-
taiiK'd by the evidence, because th(! indorsement of
such an order should have been charged in terms.
The strongest case that I have been able to find for
the contention is that of Jicc v. Arscott, cited by the
prisoner's counsel from Car. and Payne, p. 108.
The prisoner in that case was indicted for forging an
indorsement for the payment of money, and also with
the uttering of the indorsement ; and it was held
that as the section of the statute relating to the
offence under which he was indicted (section 1 AVill.
lY., c. (50,) provided for the forging of orders, and while
it also provided for the forging of indorsements of bills
of exchange and other similar instruments which were
designated, did not mention the indorsement of orders,
it was therefore to be concluded that the legislature
did not intend that the forging of the indorsement of
the latter instrument was to be a punishable offence,
although it would really be the forging of an order,
and as such might be said to be within the terms of
the Act.
Our Act. ht)wever, i-; \iry different from the Imperial
Act, under which that case was decided, inasnuich that
it draws no such distiiiclion as would exclude from the
I'. CD. 5
()6 CRIMINAL DIGEST.
catcj:;ory of criminal offences the forginf^ of the instrii-
raent, which constitutes a ])art of the order set out in
the third count.
As the instrument is described in the lirst count as
a cheijue, the forgery of wliich would in no sense be
supported b}' proof of the forgery of the indorsement
of a cheque, 1 think the conviction upon that count
cannot be sustained.
On behalf of the crown it was urged that the learned
Chief Justice had no jurisdiction to reserve thj case,
because the (luestions submitted did not arise " on the
trial," and therefore were not within the provisions of
chapter 171 in the appendix to our revised statutes.
I was of o])inion at the argument, and still think, that
the second (]uestion submitted to us did ai'ise at the
trial, and that we should assume that it did so arise
unless the contrary was made to appear.
The other question reserved was, " whether tlu^
prisoner was indicted and tried for another and dif-
ferent offence, or other and different offences, than that
for which he was extradited at the instance of the
Government of Canada ; and if so, whether the court
had jurisdiction to try and convict the prisoner of such
offence or offences."
As it appears the same (|uestion was raised at the
trial by demurrer, and was d(>cided 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<!mont of the name of McFatridge, the payee,
!)(■(•( )iiies an order to pay the bearer, and therefore
that th{! char{;;(! as stated ivS supported by the proof.
What we have to do is to interpret tlie word " order "
in the third count. Is the above a strained interpre-
tation, and can the word havt^ two different nieanin<,'s
ill th(! same count? We must not for<^et that th(i
legishiture has provided for the two distinct cases of
the utterin<fofa forged "order" and of the uttta'ing of
a forged "indorsement oi an order." If the statute
contemplates both a forged order and a forged indorsc-
m(Mit of an order, wouhl not the term " order
api
)ii
e<l
to the instrument in question, refer to the main instru-
ment in contradistinction to the indorsement, even
supposing that tlic uliolo instrument might be called,
in the words of Coleridge, J , in Autery's case, (1 Dears-
ley and Bell, ii!>* .'<: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(;<iii. i v. Steel, 13 C. P. (ill) : H. S.
c. 1«)5, H. 29.
173, — A writing not addressed to any one may be an order
for the payment of money, if it be shown ])y evidence
for whom it was intended. In this case the order
was foi' $15, in favour of " bearcir or 11. R.," and pur-
ported to be signed by one B. The prisoner in person
presented it to M., representing himself to l)e the
payee, and a creditor of 15,,
Ifehl, that it might fairly be inferred to have been
intended for M.: and a conviction for forgery was sus-
tained. He^iiiia v. Pader, 15 C. P. 15 ; 11. S. c. 165,
s. 21>.
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<J; 11. S. c. 165, 8. 40; c. 174, s. 114.
175. — -A forpjed i)aper purportinjj: to he a bank note, is
a promissory note within the 10-11 Vict. c. !),
even though there is no such hank as that named.
Ilcflina V. }[(■ Donald, 12, Q. ]i. 543 : ]{. S. c. 165, s. IH.
17<>. — 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
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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
<piarter sessions, lifijinn v, hiinloji, ]~> (). ]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<l the person to
whom the orch'r was a(Mressed, and who delivered the
goods thereon : and there was no corroborative testi-
mony,
//(■/(/, under 10-11 Vict. c. II, s. 21, not suOicient
evidence, liftiimi v. (iilcs, (J C. P. H4 : 1{. S. c. 171,
s. 218.
ISO. — An indictment will not lie for forging or altering the
assessment roll for a township deposited with the clerk.
llc[iinn v. I'nsfoii, 21 Q. B. 8(5.
IHI. — A prisoner was arrested in rp[)er Canada for having
connnitted in the I'nited States "the crime of foigery
by forging, coining, etc., spurious silver coin," etc..
Held, 1st, that the offence as above charged did not
constitute the crime of " forgery " within the meaning
of the Extradition Treaty or Act : 2nd, that it cer-
tainly is not the crime of forgery under our law, and
therefore the prisoner could not be extradited. In re
Smith, i r. K. 2ir, ; R. S. c. 1()5, 8. 3.
OKKENl'ES.
73
|H2. — Held, tliiit a person convii-tod of forgery or uttering
forged paper m the I'liiled States, wlio escaped to
Canada after verdict but before judgment, was liable
to be delivered up under the Ashburton Treaty and the
Provincial Statute passed to give effect to that treaty.
Ill n' ]l\inirr, 1 L. J. N. S. 1().
IH.S. — Sciiihic, that the execution of a deed by prisoner in
the name of and representing himself to be another,
nuiy be forgery, if done with intent to defraud, even
though he had a power of attorney from .such person,
if he fraudulently conceal the fact of his being only
such iittorney, and assume to be the principal. In re
Jlcnimi V. (nndil, 20 C. P. 154.
'2'A. rr»ii«l<«
IH-J.— An indictment charging an insolvent person with
making away with an(i concealing his goods, to the
value of more thiin liftv dollars, with intent to defraud
his creditors, without specifying what goods and what
value, was held to be bad, and was quashed on motion.
lU'iiiini V. PiiloiUi', 4 R. L. 131, Q. li. 1H72 ; U. S. c 17;J,
&. 28.
185. — The fraudulent removal of goods by a tenant, is. under
11 George II. c. 1S>, 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<<jina v. LacLir,
7 Ont. 11. 481 ; 5 Can. Law Times, l:U); P. S. c. 178,
B. 26.
18G. — To cheat and defraud private individuals is not
necessarily a [)enal offence. litujiiKi v. lioii, 11 L. C. J.
89, (,). n. 18G7.
<
71
ClllMlNAL UKIEST.
II
IHT. — The (lefctulant hein*^ the proprietor of a newspaper,
a(lvertiK(!tl in it tlmt wlioever should ^ness the imtnl)er
nearest to the ninnher of heans which had hei'U ])hice(l
in a seaK^] j^hiss jar in the window on a pnhlio street,
should receive a $20 .u;ohl piece, the i)erson niakinj^thc
next nearest ^uess, a set of harness, and th(! {)erson
makin}; the tliird nearest fjuess, a So p,oU\ i)iece ; any
person deairin*^ to compete to buy a copy of the news-
paper, and to write his name; and the supposed number
of the beans on a coupon to be cut out of tlif paper.
The defendant was convicted of a contravention of
C. S. C. c. !)-,.
llchl, that as the aj)proxiiualion of tlie number
depended as much upon the exercise of skill and judg-
ment as upon chance, tliis was not a " modeof chance "
for the disposing of property within the meaning of the
Act.
Per Haoauty, C.J. — The Act applies to the unlawful
disposal of some existing real or personal property.
In this case there were no specific gold coins, nor was
♦ here any particular set of harness, to be disposed of,
which might have been forfeited pursuant to section
8 of the .Vet, and therefore the conviction was bad on
that ground. Remind v. Jhxlda, 4. Ont. Rep. 390,
q. B. ; H. S. c. 150, s. 2.
The defendant placed in his shop wind(nv a globular
glass jar. securely sealed, containing a number of but-
tons of different sij^es. He offered to the person who
should guess the number nearest to the number of but-
tons in the jar, a pony and cart, which he exhibited in
his window, stipulating that the successful one should
buy a certain amount of his goods.
M-
OFKKNCKH.
75
Ilclil, that as tlu> 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<i v. J.iiiiit'non, 7 Ont. Kep. 14!>,
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 char<i;e was nnide,
*■ Whosoever, without lawful authority, forcibly seizes
and confines or imprisons any other person within
Canada, or kidnaps any other person with intent " to
cause such person to be secretly confined or im-
prisoned in Canada, or to be uidawfnlly sent or trans-
ported out of Canada against his will, or to be sold or
captured as a slave, is }j;uilty of felony,
J/t'hl, Wilson, J., dissenting, that the intent required
applieil to the seizure and continement in Canada,
as well as to kidnapping; and that the first count
therefore was defective in not stating any intent.
I'pon this ground the judgment was reversed, and
iniderC. S. V . C. c. 118, s. 17, the record was remitted
to the judge to i)ronounce the proper judgment, which
would be u[)on the second count only.
Held, also, that the amendment was authorized,
under '^'l-'V,) Vict. c. 2J). ss. 1 and 71, ]).,
//('/(/, also, that the court would not presume that
the two counts referred to the same offence, and if it
were so, duplicity would not be a ground of error,
fi m
OFrKNCEH.
77
//(.'/(/, also, no ohjoetion llmt the jurisdiftion con-
ferred by ;}'2-'3ii Vict. c. 'li), was not sliewn, for the
record and judgment were in the form prescribed by
tliat Act,
llcltl, also, that the slu'rilV's notice was sulVieicnt, as
iVl-'Ai) Vict. c. vlf), s. 2, recjiiires it only to stale the
" nature of the cluir;;(' " preferred a;;ainst tiu) prisoner.
The prisoner having been sent to the penitentiary, a
hdJx
itiocdx ri)ri>iiii 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<iiti({ v.
Paquvt, 2 L. N. 140 : II. S. c. 174, s. 12!>.
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. lic<fiiia v. .S7. Louis, ct al, 10 L. C. U.
34, E. S. c. 104, s. 58.
11)7.— Where one of the [)iirtners of a tanning iirm, which
had undertaken to tan a large (piantity of hides on a
commission of prolits, the owner reserving to himself
the right of sale of the hides, shipped them first toward
New York, where the owner resided, and then bringing
them back to Afontreal, sold them under an assumed
name, and pocketed the proceeds,
lldd^ t this was no vol as understood by tho
law of Lower Canada. F(iu'cctt,ct (//. v. 'J'ltoiiqmm, ct
uL, 4 L. C. J. 2;]4, S. C. 1851).
H>8. — 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 bein<? claimed
upon them on October 'idtii. P. and prisoner went to
the insurance office to st^ttle the matter, and obtained
a checpie for the amount claimed. This the prisoner
took charge of, instead of sharing the sum Cfjually as
had been agreed, and criminal proceedings were insti-
tuted, r. T., carpenter, deposed that he had been in
partnership with priscmer from May to August, 1881.
Their place of business was burnt down on July '29th,
and on the 17th of August their partnership was
dissolved, an agreement being made to share the profits
etjually. A policy was held by the firm against the
Dominion Insurance Company, and another against
the Canaila Insurance Company, the two amounting to
$20,000. The Dominion Company paid them a cheque
for their claim on October 2()th, and tliey proceeded
together to the bank to get it cashed. The prisoner
received bills for the amount, but when witness
demanded his share prisoner declined to comply.
The witness called for the money several times, but
on each occasion was refused. Counsel submitted that
the crown had no case, as the money was proved
never to have been in physical possession of T,, and
hence no larceny could have taken place. His honor
concurred, and charged the jury in accordance. A
verdict of "not guilty" was returned. Mooney v.
Rqiina, Q. B. 1882, Que. ; 3 Stephen's Dig. 423 ;
K S. c. 104, s. 5.
203. — A difficulty having arisen between the shipper and
the master of a vessel as to the exact quantity of goods
shipped, each tendered a bill of lading in conformity
F.C.D. 6
-
F
• I
Ir
82 C'ltlMINAIi DIUKHT.
with his pi'L'tcnsioiiB an to the (luiintity of carj^o
received. A writ of revendication was thei. iHHued,
at the iiiHtanco of the shipper, to attaeli the nirf;o,
and a ^^uardian appointed by the sherifT. Whil;* the
ear^o was no under seizure and in charj;e of the; };uar-
dian, thu master put to sea, hut was overtaken and
brouj^ht back to Quebec on an accusation of larceny,
Ifeld, that under the circumstances there was no
auiiiniM f'tiritinli, and tlnu'cforc no larccuiy, even cHatmlia
letjis. R'ijiiKi V. SiiUh, 7 Q. L. It. '2'2().
204. —An incHctinent does not lie aj^ainst an Indian for
larceny because of his havin;^ cut and removed wood
from an Indian reserve and upon land of which he had
possession. The i)roper rt >irse 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<iin(i, 1 Q. B. K. 302, Que. ; IX. S.
c. 174, 8S. 103, 199.
207. — Upon an indictment for receiving stolen goods,
knowing them to bt stolen, the evidence showed that
all the goods were found on the defendant's premises,
some in the stable and some concealed. The prisoner
denied all knowledge of the articlec*, but, when told
that the officer had a search warrant to search the
premises, he was seen to wink at one of his servants in
a suspicious manner,
Held, that, although evidence of possession might
8Ui)port an indictment for larceny, it would not suffice
iiiy
p .
I
1 m
84 CUIMINAL DIGEST.
to convict of feloniously receivinf; the pjoods ; and it
was necessary to prove? that the property was unlaw-
fully in the possession of some one else before it caniu
to the prisoner. The conviction was therefore (juashod.
I{,'!li,ia V. Pern/, 3 L. N. 12; 10 K. L. 05, 187'J ; '20 L.
C. J. 24 ; li. S. c. 174, s. 199.
208. — Where an indictment contains one count for larceny,
and allegation in the nature of counts for previous
convictions for misdemeanors, and the prisoner, beinj^
nrraigned on the whole indictment, i)leads " not guilty,'
and is tried at a subsecjuent assize, when the count
for larceny only is read to the jury,
Hi'l<l, no error, as the prisoner was only given in
charge on the larceny count, licijina v. Mason, 22
C. P. 240, Out.
209. — The conviction stated that "Joseph Caswel had on
liis premises a (piantity of chopped wood, to wit, ai)out
half a cord, belonging to Thomas Fulton, which said
Thomas states was taken and stolen from him, and
which said Joseph could not satisfactorily account for
its possession,"
//('/(/, that the conviction was bad, because 32-
33 Vict. c. 21, s. 25, under which it was made,
applies to trees attached to the freehold, not to trees
made into cordwood, and because cordwood is not '' the
whole or any part of a tree " within the statute.
Rafinu v. Castrel, 33 Q. B. 303; U. S c. 104, s 22.
210. — A party cannot be prosecuted under 4-5 Vict. c. 25,
for stealing fruit " growing in a garden," unless the
bough of the tree upon which the fruit is hanging be
within the garden ; it is not sutlicient that the root of
the tree be within the garden. McDonald v. Cameron,
4 Q. B. 1; R. S. c. 104, ss. 18, 19.
Itil
I , :i;,
it!
OFFKNCES.
85
211. — In an indictment cliai'fMnjjf the prisoner with stealing
bank bills, the words " of tho moneys, goods, and
chattels," may be rejected as surplusage. Reijina v.
Saunders, 10 Q. ]3. 544 ; R. S. c. 174, Sehed. No. 2.
*21'2 — An indictment for breaking into a church and steal-
ing vestments, etc., there, describing the goods stolen
as t!;e property of " the parishioners of the said
church,"
IIvLl, bad. They must be averred to belong to some
person or persons individually. Such a defect is not
within the 13 Vict. c. 92, ss. 25, 20 ; Regina v. OBrien,
13 Q. B. 430; 11. S. c. 174, s. 117.
213. — The prisoner was indicted for stealing the cattle of
K. M. At the trial li. ^I gave evidence that he was
nineteen years of age ; that his father was dead, and
the goods were bought with the proceeds of his father's
estate ; that his mother was administratrix, and that
the witness managed the property, and bought the cattle
in ([uestion. On objection taken, the indictment was
amended, by stating the goods to be the property of
the motlier, and no further evidence of her adminis-
trative character was given, the county court judge
holding the evidence of 11. M. sutiticient, and not leaving
any question as to the pr-^perty to the jury. On a
case reserved,
J/ild, 1st, that there was am])le evidence of posses-
sion in Iv. M. to support the indictment without
amendment ; 2nd, that the judge had power to amend,
under C. S. C. c. 99, s. 78 ; 3r(l, that the conviction
on the amended indictment could not be sustained,
there being no evidence of the mother's representative
character, nor any question of ownership by her, apart
from such character, left to the jury. Regina v. Jack-
son, 19 C. P. 280.
I m
4
TT
%
86
CHIMINAL DIOEST.
214. — Defendant held tlie title of certain land belonpiinf^ to
one A., who lived in the United States. A. exchanged
it with H. (the prosecutor) for other land, and gave an
order on defendant to convey to H. When H. pre-
sented this order defendant represented that a claim
having been made against him for A.'s debts, he had
sworn that the farm belonged to himself ; and to keep
up the appearance of this being true, it was agreed
between H. and defendant that a certain sum should
be paid over by H. to defendant on receiving the deed,
as for the purchase money, and immediately returned.
H. borrowed $700 for the purpose, and they, with II. 's
brother and others, went to a solicitor's olhce, where
the deed was drawn, with a consideration expressed of
$3,150. The S700 was handed to defendant, and
counted over by him as if it were $2,000, and notes
given by H. and his brother for the balance, $1,150.
Defendant, instead of returning t' ' money and notes,
ran away with them,
Semhlc, that upon these facts an indictment for lar-
ceny might have been sustained, if the jury had found
that dell :idant, when he obtained possession of the
property, intended to steal it. Ihujimi v. Kiv'nu/, 21
Q. B. 523 ; li. S. c. 164, s. 85.
The public interest being concerned, the principle of
estoppel would not apply, so as to prevent H. from
asserting that the payment which he prcfcsgcd to
make in good faith was in fact only a pretence. IJ>.
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 <lo, nlthouf^li he had
personally promised to do it. liiyihjvs «.7>., 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 (]<!ceased, but neither a knife nor other
instrument was seen in his hand. For the prisoner
evidence was offered that on the day preceding; th(!
homicide the prisoner had a knife whicdi couUl not
have inflicted the wound of wliich deceased died ; and
thai on that (hiy the prisoner parted with it to a
person who hehl it until after the crime was com-
mitted. The learned judge at tiie trial refused to
admit the evidence,
Held, Galt, J., dissenting, that the evidence was
properly rejected. lic<jiha v, Herod, 21) C. P. 428,
235. — P. (the pris(mer) and D. (deceased), heing brothers,
were in the house of the latter, both a little intoxicated.
D. struck his wife, and on P. interfering, a scutHe
began. While it was going on D. asked for the axe,
and, when they let go, P. went out for it and gave it
to him, asking what he wanted with it. D. raised it
as if to strike P., and they again closed, when the wif(!
hid the axe. While the scutlrte was going on ]). struck
P. twice. On getting up, P. kicked him on the side
and arm, and then ran across the garden, got over a
brush fence into the roa<l, and dared I), three times to
come on, saying the last time that he would ot go
back the same way as he came. 1). seized a stick from
near the stove, which had been need to poke the fire
with, and ran towards P. In trying to cross the fence
'tie fell to his knees, and P. came forward and took the
stick out of his hand. He got up, and as he went
over the fence P. struck him on the head with it. The
• wife entreated him to spare her husban 1, but he struck
him a second time, when he fell, and again, while on
the ground, from which he never rose. P., in answer
to the wife, said D. was not killed, and refused to take
^'.iil;
OFFENCES.
93
him in, saying, " Lot him lie there till he conies to
himself,"
Held, that the evidence was sr.iVicient to go to the
jury to estahlish a charge oT murder ; that if the death
had heen caused hy the kicks received hefore leaving
the house, the circumstances would have repelled the
conclusion of malice ; hut that whether what took
place at the fence was during a continuance of the heat
and passion created hy the previous quarrel, was,
under the circumstances, a (piestion for th'i jury. A
conviction for murder was therefore upheld, and a
new trial refused. Retina v. McDowell, 25 Q. h. 108.
28(). — Tlie prisoner was indicted for manslaughter. The
evidence estahlished that one T., an hahitual drunkard,
went to an hotel in Quehec, where he met the prisoner
and some of his companions. T. put himself in the
way to he offered drink, which the prisoner ordered
for him and paid for. Prisoner then gave him three
other glasses of licfuor (pr(jved to he three-(|uarters
whiskey reduced and one (piarter wine), which deceased
drank in rapid succession. Insisting on the prisoner's
capacity to drink, i)risoner offered to make hets that
deceasad could drink, and even offered him a share of
one of the hets. In this way deceased was induced
to drink two very large tumblers full of a mixture of
heer, whiskey and wine. Shortly after the deceased
was overcome hy the drink, became unconscious, and
was carried home in a cab, and died next morning,
without ever having recovered speech or conscious-
ness. In charging the jury, the court said tliat drink-
ing with another, or even giving another drink, was
in itself innocent, and if the person to whom the
drink was given died of the effects of it, the party
giving it was not responsible. But if the jury were
r !
I
94 (LUMINAL DKlESr.
SHtittficd that tlio drink was Riven not out of Rood
fellowship, hut with the intention of niiikinf^ the de-
ceased ill or drunk, it was an illegal act, and if the
man died of the effects of the drink so ^iven, it would
he manslaughter in the party giving it. I'risoner was
acquitted, lietjina v. Lortie, U Q. L. K. 352, Q. B.,
Que.
237. — If a person gives another drink, with th<.' intention
to do him boddy injury, and he dies, it will he man-
slaughter ; and if the intention be to kill him, it will
be murder. The IJiafu v. lioiitet. Charge to the jury,
Oct., 1883. Kamsay, Ap. Cases, 190.
238. — An indictment contained two counts, one charging
the prisoner with murdering M. J. T. on the 10th
Novend)er, 1881 ; the other with manslaughter of the
said M. J. T. on the said day. The grand jury found
" a true bill."' A motion to qnash the indictment for
misjoinder was refused, the counsel for the prosecution
electing to proceed on the first count only,
11(1(1, affirming the judgment of the Supreme Court
of New Brunswick, that the indictment was sufficient.
The prisoner was convicted of manslaughter in killing
his wife, who died on the 10th November, 1881. The
immediate cause of her death was acute inflammation
of the liver, which the medical testimony proved might
be occasioned by a blow or a fall against a hard sub-
stance. About three weeks before her deatli (17th
October preceding), the prisoner had knocked his wife
down with a bottle ; she fell against a door, and
remained on the floor for some time ; she was confined
to her bed soon afterwards, and never recovered.
Evidence was given of frequent acts of violence com-
;
I
j
^ 1 ■'
1:
I
wm
OFFRNCER.
96
uiittod by the prisoner upon liis wife within a year of
lier death, by knocking her down and kicking her in
the side.
The following (luestions were reserved, viz., whether
the evidence of assaults and violence coniinittcd by the
prisoner upon the deceased, prior to the 10th November
or the 17th October, 1881, was properly received, and
whether there was any evidence to leaver to the jury
to sustain the charge in the first count of the indict-
ment '?
Ifchl, aftinning the judgment of the Supreme Court
of New IJrunswick, that the evidence was jjroperly
received, and that tlu-re was evidence to subniit to the
jury that the disciisc that caused her death was pro-
duced by the injuries inflicted by the prisoner. 'J'lual
V. The Queen, 7 S. C. li. 8D7, n! B.
231). — On a trial for intent o commit murder, a reserved
case was brought bef* re the Queen's Jiench in Error
and Appeal, on a motion in arrest of judgment which
impugned the indictment ui)on whicli the defendant
had been convicted on the ground that the words " of
'lalice aforethought" had been omitted from (he aver-
ment therein of the intent to murder, and the word
feloniously had been written felonious,
• Held, on the latter point, that the statute empowered
the court to adjudicate, not on what merely appeared
on the face of the case reserved, but on what had
been therein expressly reserved for their consider-
ation, and the court was therefore unable to look
at it ; but with regard to the first point, the
omission of the words " of malice aforethought " was
a substantial defect in the indictment such as could
not be cured by amendment or covered by the verdict,
! I
d6
CRIMINAL DIGEST.
and juclj^MiU'iit therefore should he arrested. lii'fiina
V. Can; 2(1 L. C. J. <5], Que.; H. S. c. 174, Sciied.
No. 2.
See Assault, Noh. 42, 43, 44 ; Wounding, No. 320.
20. i'Vlutiiiy—
240.— The Naval Discipline Act 29-:}0 Vict. c. 109, s. 25.
authorizes a Hutninary conviction hefore magistrates
for this offence, but the 101st section expressly pre-
serves the power of any court of ordinary civil or
criminal jurisdiction with respect to any offence
mentioned in the Act punishable by common or
statute law,
Jlcld, therefore, that defei.dant could be indicted
under ihe C. S. U. C. c. 100, s. 2. Ht'ffina v. Patterson,
27 Q. B. 142,
Ili'hl, by J. Wilson, J., that the punishment im-
posed by the provincial Act stands abolished as long
as the ^[utiny Act is in force, and that the imprison-
ment can in no case exceed six calendar months; but
that the power of trial by the Court of Oyer and Ter-
miner, under the provincial Act, has not been taken
away by the Mutiny Act, and therefore that the defen-
dant in this case could not complain, as he had been
tried by a tribunal of this kind, and sentenced to no
longer imprisonment than the last-mentioned period ;
and that though a Inie of 10s. had also been imposed,
for this was merely nominal, in compliance with the
provincial statute, and would not entitle him to be
discharged, as the court had power to pass the proper
judgment if an improper one had been given. lb.
30. Neutrality Law—
241. — Lawful acts of war against a belligerent cannot be
either commenced or concluded in neutral territory.
In re Burleij, 1 L. J. N. S. 34.
?■' m
ori'KNCKH.
97
:il. \iii*«iiii(>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(l<j;ed that hit
should pay a fino of 1*50, and l)e imprisoned till the
fine was paid, and further onhredthe sJieritT forthwith
to ahate the nuisance hy the innuediate destruetiori i>f
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<i;ilin\ 21
C. v. 54.
25;{.~ The court will not quash tlio indictment because
tliero is a variance in tlie sp(!cific ( har<4(> 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<j; indicted for perjury in <;ivin<;
evidence upon a ( ]iar^(> 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<j;itimate
child, is an indictable oltencc The attempt i)roved
consisted of a letter written by defendant, dated at
hradtord, in the county of Simcoe, pur))ortinf^', but not
l)roved, to bear the Jiradford post-mark, and addresstul
to the woman ;it Toronto, where; she rticeived it,
Hihl, that the case could be tried at York.
Sfiiililr, per Dkai'ku, CI., if the post mark had been
pro\(!d. and the letter thus shown to have passed out
of defendants hands in Simcoe, intended for the
woman, tin; offence would have becji com[)lete in that
county, and the indictment only triable there.
I'cr ]lA(;Ai;rv, .)., the defendant in that case would
still have caused the hotter to be received in York, and
mi'^'ht be tried there.
ijiittrc, whether, if the wonum had committed the
ort'eiice, it should have b(!on charged as a misdcnneanor
^i'
w
J!, |}|j
102
CRIMINAL DIGEST.
on]; or as the statutory ofl'ence of perjury, lli'fiinn v.
Clement, 2(5 Q. B. 21)7; W. S. e. 154, ss. 1, 2.
258. — C. S. U. C. c. 52, s. I'iS, empowers any justice of the
peace to examine on oath any person who comes hefore
him to give evidence touching; loss hy tire, in whicii a
nnitual insurance company is interested, and to ad-
minister to him the requisite oath. Upon an indict-
ment for perjury, assigned upon an attidavit made in
compliance with one of the conditions of a policy,
Held, that the policy must be produced, although
the defendant's attidavit referred to the policy in sucli
a way that its existence might he fairly inferred.
ne(jina v. Gdrfon, 17 C. P. 530.
251). — 82-33 Vict. c. 33, s. 8 (D), applies to all cases of
perjury, and not merely to " Perjuries in Insurance
Cases," which is the heading under which sections 1
to 12 are placed in the Act. liejjhut v. Ciirrie, 31 Q. B.
582: 11. S. c. 174, s. Ifi.
260. — Therefore, a magistrate in the county of Halton had
jurisdiction to take an information, and to apprehend
and hind over a person charged with perjury com-
mitted in the county of Wellington, lb.
2(51. — A recognizance to appear for trial on such charge
at the sessions was "''rong, as that court has no juris-
diction in perjury, out a rc.rtiorarl to remove it was
refused, as the time for the appearance of the party
had gone by. //>.
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. <iihson,l II. L. 574, 1870.
271. — Or where the encjuete was taken without the neces-
sary corsent in writing of the parties. licuinn v.
Mart},,, 21 L. C. J. 15(5, 1877.
272. — Even where the parti^'S waive such consent subse-
(juently. Unji^n v. M<iitin, 7 W. L. 072. 187().
273. — On a reserved case, it was held that though the
stenographer's notes were not I'ead to, or signed by the
witness, the latter was properly convicted upon the
testimony of that ofiicer based upon his recollection of
what he had heard the accused say, and this not-
withstanding some slight irregularities at the trial.
Refiina v. Leonard, 8 L. X. 138, 211, 1880.
274. — An accusation of perjury cannot be based on a de])0-
sition irregularly taken.
The question whether the deposition was voluntary
and corrupt should be left to the jury
Uenaidt, 8 L. N. 2(50, Que.
Rer/ina v.
r
lOG
CRIMINAL I)IGP:8T.
275. — All iiulictnient whicli all(.!f:;ed that the accused had
coiiiuiitted perjury in a cause "wherein one Adrien
Girardiii, trader, and Thomas Ling was defendant, " was
hehl to be defective hecause of the omission of tlie
words " was phiintitl" after the word " trader," especi-
ally as the question on the answer to which perjury
was assigned was " Did you not make a bargain with
plaintiff;" and the negative averment alleged, " where-
as in truth he had made a bargain with A. G."
Renina v. Lin;/, 2 L. N. 410 ; 5 Q. L. \i. '^rA).
276. — Wliere it was moved to amend an indictment for
perjury so as to negative the truth of the answer given
by the accused, the application was rejected. licAjina
V. Leonard, 8 L. N. 138, 1880; R. S. c. 174, s. 128.
277. — On a motion to quash an indictment for perjury,
(1) because there were no words to show the jurisdic-
tion of the court as in the Lynch case (22 J. 187,
7 li. L. 5.53), (2) that there were two distinct charges of
perjury in the indictment, (3) that the word " know-
ingly " is omitted, (4) that it does not appear that the
perjury was in any judicial proceeding.
Held, the venue is Montreal, and the perjury is
alleged to liave taken place there ; therefore, Lynch's
case does not apply. Including two charges of perjury
in the same indictment would not be ground for
(plashing the indictment ; but as a matter of fact the
two false statements were in the same deposition, and
under one oath ; therefore, there were not two false
oaths, but one. As, regards the word " knowingly,"
the indictment follows the statutory form, and it is
therefore decl;u(!d by law to be sufficient. On the
last ground the terms of the statute are sufficiently
(
fit
OFFKNCES.
107
followed. TJic Queen v. Jitdn, litimsay, A. C, 1!>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<jin(i v. Atkinson,
17 C. P. 295.
281. — Where it appears on the face of the indictment that
the statement complained of was made before a justice
of the peace in preferring a charge of laceny committed
nr
If
lOH
CUIMINAL DiriKST.
witliin liiH jurisdiction, it is uunecrssiiry to allogc cx-
l)ressl_v that ho had authority to Hdiuiuistcr tho oath.
lieiiiini V. C(ill(i<ih'(n, lil Q. li. a64.
See Heifina v. Murphi/, !> 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<l
is not cured by verdict. Jietiina v. Blraii, 7 R. L. 571,
1870 ; lieiiiiui v. lutiirc, Rcfiiiui v. ])rr(lu\ 3 L. X.
2()G ; R. S. c. 1()8, s. 12.
:t.5. iCsi|M> -
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<i;e. On the part of the
defence it was "ttempted t<> 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<i()ii(t, 1) i^). L. 11. 8ol: li. S.
c. IG'2, s. 41.
'292. — The prosecutrix, on an indictment for rape, was
asked in cross-examination, after she had declared she
had not previously had connection with a man other
than the prisoner, whether she remembered having
been in the milk house of G., with two persons named
M., one after the other.
Held, that the witness might have objected, or the
judge might, in his discretion, have told the witness
she was or was not bound to answer the question ; but
the court ought not to have refused to allow the ques-
tion to be put because the counsel for the prosecution
objected to it. Rtui'ma v. Ldlihertr, 1 S. C. R. 117,
1877.
"21)3. — In the same case, a witness was called for the de-
fence, and asked, " Did you ever see ^l., the prose-
cutrix, with ]). M. and P. M. (the persons before
alluded to), and if so, please state on what occasion,
M
I
112
CRIMINAL DIGEST.
and what were they doing"?" The court refused io
allow the tjuestion. fl>.
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<J.
i Queen's
;; property
•It be bad
n-ty to the
'gistered,
, that the
Iwbicb the
e prisoner
\iUiHer, 4
hg tbreat-
jontaiu an
Ithe person
intention
lie tbreats
Inary force
lie without
reasonable or probable cause.
9 L. N. 333 ; R. S. c. 173, s. 1.
116
Rcgina v. Tranchant,
802. — It is necessary that the money be demanded with
threats and with intent to steal it. A creditor who
by means of threatening letters obtains the payment
of his claim is guilty of no crime. Rcgina v. PirJie,
9 L. N. 380; II. S. c. 173, s. 1. See Nos. 222, 223
ante.
41. Vagrancy-
SOS. — The Vagrant Act, declares certain persons or classes
of persons to be vagrants, amongst others, "all com-
mon prostitutes or night-walkers wandering in the
fields, public streets, or highways, lanes, or places of
public meeting, or gathering of people, not giving a
satisfactory account of themselves, all keepers of bawdy
houses and houses of ill-fame, or houses for the resort
of prostitutes, and persons in the habit of frequenting
such houses, not giving a satisfactory account of them-
selves ; " and " shall upon conviction be deemed guilty
of a misdemeanour, and punishable, etc.,"
llchl, that the Act does not, on its true construction,
declare that being a prostitute, etc., makes such
persons liable to punishment as such ; but only those
who when found at the place mentioned, under circum-
stances suggesting impropriety of purpose, on request
or demand are unable to give a satisfactory account
of themselves. On the conviction of the prisoner
herein she was committed to custody under a warrant
issued by the convicting magistrate. She gave bail
and was discharged from custody under 33 Vict. c. 27,
8. 1. On the appeal being heard, the prisoner was
found guilty, and the conviction affirmed, and the
fl
•JTW-
*
■^ l1
116 CRIMINAL DIGEST.
prisoner directed to be punished according to the con-
viction. No process was issued by the sessions for
enforcing the judgment of the court, but a new war-
rant was issued by the convicting magistrate under
which the prisoner was retaken. Writs of haheas
corpus and certiorari were issued, and on the return
thereof a motion was made for the discharge of the
prisoner. In the margin of tlie writ of liahcna rorpiis,
it was marked " per " 33 Car. 2, which was signed by
the judge issuing it,
Held, that the prisoner was not in custod}- or con-
fined under the judgment of the sessions, but under the
warrant of the convicting magistrate ; and,
SeiiiJjIe, under the circumstances, the convicting
magistrate was ftinctiis officio, and therefore could not
issue the warrant in question, which should have been
issued by the sessions ; and possibly they could have
directed punishment for the unexpired term; but that
if no bail had been given, and the prisoner had
remained in custody, no further order of commitment
would have been necessary, or if no warrant of com-
mitment had been issued prior to appeal, the magis-
trate could have issued one thereafter,
Held, also, there was power to act under 11. S. 0.
c. 70, and so a judge in chambers could deal with the
motion : that marking the writ as under the statute of
Charles, did not prevent the learned judge so acting
under chapter 70, or at common law ; and as no oiienct;
was declared the prisoner was directed to be discharged
on the habeas corpus.
Held, also, that under a certiorari the conviction
might be quashed ; and as the judgment of the sessions
confirmed the conviction, it would probably fall witii
305
OFP'ENCES.
117
he con-
011 s for
B\v war-
B under
Jialxms
i return
3 of the
<:i;ned by
y or con-
mder the
onvicling
could not
ave been
)uld have
but that
oner had
mitment
of com-
le magis-
E. S. 0.
with tin,'
statute of
so aetin;;
no offence
[ischar^eJ
conviction
le sessions
fall Nvitii
it. Rccjina v. Arscott, 9 Ont. Rep. 541, Q. B. ; R. S.
c. 157, 8. 8.
304. — The defendant was summarily convicted under 32-
33 Vict. c. 28, s. 1, as a "person who, having no
peaceable profession or calling to mnintain himself by,
but who does, for the most part, support himself by
crime, and then was a vagrant," etc., etc.
The evidence showed that the defendant did not
support himself by any peaceable profession or calling,
and that he consorted with thieves and reputed thieves ;
but the witnesses did not positively say that he sup-
ported himself by crime.
Held, that it w'as not to be inferred that the defen-
dant supported himself by crime ; that to sustain the
conviction there should have been statements that
witnesses believed he got his living by thieving, or by
aiding and acting with thieves, or by such other acts
and means as showed he was pursuing crime. Ilcijina
V. Onian, 11 P. R. 497; G Can. Law Times, 593, Ont.;
R. S. c. 157, s. 8.
305. — The defendant registered his name and address at
the American Hotel, Toronto, and on the same da}'
was arrested at the Union Railway Station, having
been pointed out to the police by some of the railways'
officials as a suspicious character. On his person were
found two cheques, one for $700 the other for $900,
which were sworn to be such as are used by " confi-
dence men," and a mileage ticket nearly used up in
favor of another person, and §8 in cash. He oftered
no explanation of the cheques or the ticket, and gave
no information about himself.
Held, that the Vagrant Act did not warrant his
arrest, much less his conviction.
V
if
«i
118 CRIMINAL DIGEST.
Before a person can be convicted of beinj:; a vagrant
of the lirst class named in the Act (" all idle persons
who not having visible means of maintaining them-
selves, live without employment ") he must have
ac(piired in some degree a character which brings him
within it as an idle person, who has no visible means
of maintaining himself, i.e., not " paying his way or
being apparently able to obtain employment, yet lives
without em[)loyment. RciiiiKt v. BanHet, 10 P. 11, 886;
K. S. c. 157, s. 8.
306. — The defendant was convicted of having unlawfully
caused a disturbance on a public street by being drunk,
was a vagrant, and thus loose, idle, and disorderly person
within the meaning of the Act, The evidence disclosed
that he was drunk and that he had impeded and incom-
moded peaceable passengers, but it negatived his
causing a disturbance by being drunk. Conviction
quashed, llcgina v, Daley, 8 Can, Law Times, 100,
Out,; 11. S.c, 157, s. 8. (/)
807. — All allegation that the accused was drunk in a public
street without adding that he then caused a disturb-
ance by being drunk, is insutlicient, Exp, Despntic, i)
L, N. 887, Que. ; K. S. c, 157, s, 8.
308. — A conviction under 32-83 Vict. c. 82, s, 2, s-s 6, for
being an unlawful (instead of an habitual) frequenter
of a house of ill-fame, and which adjudged the pay-
ment of costs, which is unauthorized by the statute,
must be quashed.
That section makes the being such habitual fre-
quenter a substantial ofifence, punishable as in section
17, and does not merely create a procedure for trial
and punishment. Recjina v, Clark, 2 Ont, Rep, 523,
Q. B,'
aio.-
'
IJ
1
'K'i
y i>
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 nii<j;ht waive the^ right of
allt!;j;iaiK'e, and try him as an American citizen, which
he chiiined to he. The fact of the invaders cominfr
from the Unittnl States woiihl ho prima facie evidence
of their heinfj; citizens or suhjccts thereof. The pri-
soner asserted tliat he came over with the invaders as
reporter only, hut
Held, that this clearly could form no defence, for the
presence of any one encouraf:;ing tiie unlawful desi;j;n
in anv character, would make hira a sharer in the
guilt. liriiiiia V. Lt/nch, 20 Q. 13. 208 ; 11. S. c. 140, s. 0.
■:■.
"' Vlifl'
■
!': |i|:
1
1 Iwj,]
1
m
310. — The prisoner hein;^' indicted under C. S. U. C. c. 08,
and charged as a citizen of the United States was
acquitted on proving himself to he a British suhject.
He was then indicted as a suhject of Her jMajesty, and
pleaded aiifrafois acquit,
Held, that the plea was not proved, for that hy the
statute the offence in the case of a foreigner and of a
suhject is substantially different, the evidence, irrespec-
tive of national status, which would convict a for-
eigner, heing insufficient as against a subject; and the
prisoner, therefore, was not in legal peril on the ffrst
indictment. He(jina v. Mayrath, 20 Q. B. 385 ; E. S.
c. 140, s. 7.
317. — The prisoner, having been indicted under C. S. U. C.
c. 98, (3 Vict. c. 12,) as a citizen of the United States,
was convicted of having as such joined himself to
divers other evil disposed persons, and having been
unlawfully and feloniously in arms against the Queen
within Upper Canada, with intent to levy war against
Her Majesty. It was sworn that the prisoner had said
he was an American citizen, and had been in the
mmm
sp
OFFENCES.
123
American army, and there was no evidence offered to
contradict tliis,
Held, t!vidonce nf^ainst tlui prisoner, as his own
admissions and declarations of the country to which
he helonj^ed,
Held, also, that the evidence, s(!t out in the report,
was suHicient to prove the offence charged. The
Imperial statute 11-12 Vict. c. 12, does not over-ride
3 Vict. c. 12, of this Province, for the latter is
re-enacted hy the consolidation of the statutes, which
took place in 1850. Remind v. Slavin, 17 C. P. 205 ;
R. S. c. 14G, s. 6.
! Ih-st
47. %Vir<s !\'4>K: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 char<j;ed hy liis wife,
hefore a ma},M8trate, with refusinj^ to provide necessary
clothiuij; and lod}i;in^ for herself and children. At the
close of the case for the prosecution, defendant was
tendered as a witness on his own behalf. The magis-
trate refused to hear his evidence, not because he was
the defendant, but because he did not wish to hear
evidence for the defence ; and subseciueutly without
further evidence committed him for trial,
IlchI, that the defendant's evidence should have
been taken for the defence ; that a magistrate is bound
to accei)t such evidence in cases of this kind and give
it such weight as he thinks proper, avu that the exer-
cise of this discretion to the contrary is open to review,
Held, also, that the amended section of the Act is
intended to enlarge the j)()wers and duties of magis-
trates in cases of this nature, and tliat the word
*' prosecution " therein includes the proceedings before
magistrates as well as before ii higher court. Rafina
V. Mqiov, 11 P. 11. 447 ; 7 Can. Law Times, 16; B. S.
c. 102, s. 19.
4M. Wounding:
324. — Where the prisoner was indicted for feloniously and
unlawfully wounding H. B., with intent, thereby then
feloniously, wilfully, and of his malice aforethought
to kill and murder the said II. B. ; and by a second
count with feloniously and unlawfully wounding the
said II. B. with intent thereby then to commit murder.
!,
%
k
A
.j
J
f
~
ni
126 CUIMINAL DIGEST.
Iltihl, that tlie olTence charged in the second count
was described in the words of tho statute, 32-83 Vict.
c, 20, s. 10, by which the offence of wounding willi
intent to commit murder, was made different in nature
from what it was under the common hiw, and as tlio
prisoner had taken no objection to it until after verdict,
that the motion in arrest of judgment could not be
maintained. Rcrfina v. Decry, 26 L. C. J. 129 ;
K. 8. c. 162, s. 8.
825. --Where the words "feloniously and of his malice
aforethought " were omitted in the averment of the
intent in an indictment for wounding with intent to
murder, it was held ujjon a reserved case tluit the
count was insufficient. Ii<'f/iiia v. Bnlincr, 5 L, N. 287,
Que.; U. S. c. 162, s. 8.
326. — On a reserved case.
Held, that in an indictment for wounding with
intent to murder, the offence must be cluirged to have
been committed by the prisoner wilfully, maliciously,
nnd of his malice aforethought, and judgment would
be arrested, the indictment being defective in this
respect. Kerr v. licipna, 2 K. C. 238, Q. 13., 1872;
E. S. c. 162, s. 8.
See Murder, a)itc No. 230, Assault, No. 38.
"i]
nd count
■83 Vict.
ing wiili
in iiiitiu-e
d as tlio
r verdict,
d not 1)0
J. 129 ;
is malice
it of tlic
intont to
that the
:..N.287,
VlUrr with
i to have
Jiciously,
t would
in this
, 1872 ;
v.— INDICTMENT.
5V27. — The court has the rip:ht to refer a hill hack to the
grand jury, after a ret.irn of no hill has heen found.
lirtjina v. Mnjcm, 2. L. N. 378, 1871).
328 — The omission of the word " together " from an indict-
ment against two persons for rohhory, of whom only
one is present, is immaterial. Retina v. Procost,
M.L. K. 1 Q. B. 477.
32!). — In iin indictment purporting to he under 32-33 Vict,
c. 22, s. 45, (D), for msilicious injury to property, the
word " feloniously " was omitted ;
Held, had, and ordered to he quashed. Retina v.
Gou<)h, 3 Out. Uei). 402, Q. B.
330. — The defendant was indicted under section 25, 32-33
Vict. c. 20, for that she on the 5th day of January,
]87i), then heing the mistress of a certain girl called
Marie, her servant, her maiden name heing unknown,
of the age of eightyears, did mdawfully and maliciously
do grievous h.xlily harm to the said Marie, wherehy
the htalth of the said Marie was permanently injured.
At the trial it was proved that the child's name was
Marie Vincent, and that she was not the servant
of the defendant. In face of this evidence, the otfence,
as laid, could not he proved, and motion to amend heing
made, the learned chief justice ordered the indictment
to he amended hy striking out the words " then heing
mistress of " and " her servant, her maiden name
'fr-fTTT
128 CRIMINAL DIGEST.
beinjjj unknown," and by adding after tbe name
" Marie " tbe nai^e of Vincent in the three places where
tbe name " Marie " occurs. The trial proceeded on
the indictment so amended, and tbe prisoner wrh
found guilty of a common assault. Tbe prisoner was
sentenced to three months' imprisonment, but in
passing sentence the chief justice reserved two
questions : first, whether tbe amendment was justifi-
able ; second, w-hetber the verdict for assault ought to
be maintained. The court held tbe conviction to be
right. The Queen v. Biasonnette, 2 L. N. 212, 23
L. C. J. 240, Eamsay, A.C., 190 ; R. S. c. 174, s. 191 ;
c. 162, s. 19.
831. — Everything that is necessary to constitute the offence
must be alleged in the indictment.
332. — The indictment charged that the defendant " did
receive, conceal, or assist " one W., a deserter from
tbe navy.
Seinlde, not sutViciently certain and precise, licgina
V. Patterson, 27 Q. B. 142.
'i*
333. — Where the motion was made to quash an indictment
after proof, on tbe ground of the omission of certain
words therein.
Held, that the motion was too late, as such a motion
should have been made before proceeding to proof.
n<'llin<i V. Bonrdon dc McCidlij, 2 R. L. 713, Q. B., 18G7 ;
R. S. c. 174, s. 143.
334. — The court will not arrest judgment after verdict, or
reverse judgment in error, for any defect patent on the
face of the indictment, as objection to such defect must
be taken by demurrer or by motion to quash the indict-
INDICTMENT.
129
tlie name
laces where
)c ceded on
■isoner was
risoner was
nt, but in
served two
was justifi-
jlt ought to
iction to be
!4. 212, 23
174, s.l'Jl;
3 the offence
in d ant " du\
sserter from
se. Rcgina
indictment
)n of certain
ich a motion
g to proof.
g.B.,1867;
^r verdict, or
latent on the
defect must
ill the indict-
ment. Reifimi V. Mason, 22 C. P. 240 ; R. S. c. 147,
s. 143.
See No. 357, posf.
33."). — A defective indictment may be quashed on motion,
as well as on demurrer. licgina v. Bathpnte, 13
L. C. J. 291), Q B. 1869 ; 11. S. c. 174, s. 143.
33(5. — Ah to the averment, " contnt forman stttfiitc," see
Rcgina v. Dcanc, 10 Q. B. 4G4 ; Rciiina v. U'alLcr, 10
Q. B. 4Go ; licgina v. (^iiiiniiiiigH, 16 Q. B. 15; Rcginci
V. Can-on, 309 ; 14 C. P. It. S. c. 174, s. 128.
337. — In an indictment for obstructing an officer of excise,
under 27-28 Vict. c. 3,
Held, that the omission in the indictment of the
averment that at the time of the obstruction the officer
was acting in the discharge of his duty, under the
authority of the above-mentioned statute, was not a
defect of substance, but a formal error, which was
cured by the verdict. Spelnian v. Rcgina, 13 L. C. J.
154; 11. S. c. 174. s. 2.5.
338. — An indictment for perjury, based on oath alleged to
have been made before the "judge of the general
sessions of the peace in and for the said district,"
instead of before the judge of the sessions of the peace
in and for the City of Montreal, may be amended after
plea. Rcgina v. Pellcticr, 15 L. C. J. 146 ; R. S. c.
174, 8. 143.
38y. — The fact that the word cashier had been inserted iii
brackets after the word clerk in an indictment for em-
bezzlement as a clerk, did not vitiate the proceedings.
Regina v. Paquet, 2 L. N. 140.
F.C.D. 9
r
11
ill
i:-rfffi
180
CRIMINAL DIGEST.
340. — An indictment in a criminal prosecnfion is not
admissible as evidence in a civil action iif:;aiiist the
defendant. Wiiniiiui, ct (d. v. Fraser, 12 L. C. J. 2!)1.
See No. 350 jwst.
341. — Where in an indictment under HI Vict. c. 8, s. 11:],
for having opened the lock of a warehouse, used lor
the security of the revenue, without the knowledge and
consent of the collector of inland revenue, a redundniit
statement was introduced, makitig the wcu'ds wliicli
form the gist of the offence, viz., without the knowledf^c
and consent of the collector of inland revenue, to iipply
apparently not to the opening of the lock, hut to tlio
keeping and securing certain goods in the warehouse,
Held, that the indictment W!is bad. Hefiiiiit v. Spcl
man, 13 L. C. J. 803, Q. B. 18G9.
342. — An indictment having been held had upon demurrer,
the judgment was that the indictment be quashed, ho
that another indictment might be preferred, not that
defendants be discharged. Hetiina v. Tierney, ct al,
29 Q. B. 181. I
343. — The defendant was indicted in the district of Beau-
harnois for perjury committed in the district of
Montreal, but there was no averment in the indict-
ment that the defendant had been apprehended, or
that he was in custody at the time of finding the
indictment. The defendant neither demurred noil
moved to quash, but after verdict moved in arrest ofj
judgment on the ground that there was no averraentj
of his having been apprehended or having been inj
custody as mentioned. The sitting judge dismissed!
the motion in arrest of judgment, but reserved lliej
point raised,
;'. i!l!
iP"»"Wi:
INDICTMENT.
131
ion is not
,. C. J. 21)1.
c. 8, s. 14B,
ine, usid for
low !('(!<:;<■ and
a vedundiiiit
\or(ls which
le kno\vlG'di:;t
iiue, to iipply
k, but to the
e warc4iousc,
?^/!/M V. Spcl
m.
345.
)Oii demuvrer,
e quashed, ho
rred, not that
'ienipy, et (il..|316,
trict of Bfnii- j
e district ofj
lin the indict-
iprehendod, orl^n.
,f iindinr; tliej
lemurred norj
Id in an-(st ofj
no avenneiitLj^g
laving been iiiF
Idge disniisseilj
t reserved tbel
JJcld, that the indictment was defective ; that the
defect was one which could noi he amended, and,
consequent!}', was not cured hy verdict, and that the
judgment should he arrested and the defendant dis-
charged. Rt'fiiiKi V. T.tinch, 20 L. C. J. 187; 7 11. L.
553; li. S. c. 174, s. 1-40.
— The Attorney-General or the Solicitor-General may
not delegate to counsel prosecuting for the crown the
authnritv ^/ested in liim under this section. Rcfiina v.
Ahnihmns, 6 S. C. K. 10 ; 4 L. N. 90 ; 24 L. C. J. 335 ;
1 Q. B. R. 1-26 ; and Hcfiina Paiilet, 9 R. L. 449 ;
nciiiua V. F,>nl 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<itna v. Grant,
2 L. C. L. J. 276.
— An indictment signed by an advocate, prosecuting
for the crown as representing the Attorney-General of
the province of Quebec, and not the Minister of Justice
of the J^ominion is valid. Rajina v. Doicney, 13 L. C. J.
193, Q. B. 1868.
— Upon an amendment of the indictment at the trial,
no postponement will be granted, if the prisoner be not
prejudiced in his defence. Retina v. Senccal, 8 L. C.
J. 287, Q. B. 1862; R. S. c. 174, s. 141.
—An application to postpone a trial in consequence of
the absence of witnesses must be supported by special
atUdavit, showing the witnesses in question are
material. Reciina v. DouriaU, et a^, 18 L. C. J. 85,
Q. B. 1874; R. S. c. 174 s. 141.
M"',
132
CRIMINAL DIOKST.
349. — Where the defendant, after havinf^ been tried on a
charge of obtaining money under false pretences and
acquitted, moved for copies ot indictment and papers,
the motion was rejected. Ui'ijina v. Scneciil, 8 L. ('. J.
28G, Q. B. 18()2.
350. — The production of the original indictment is insufli-
cient to prove an indictment for felony ; but a. record
must be made up with a proper caption. Heury v.
lAttli', 11 Q. 13. 290.
See No. 340, auti'.
351. — Variance between indictment and proof in descrip-
tion of land. IicfiiiKi v. Bahij, 12 Q. 15. 34G,
352. — On an indictment for not keeping a bridge in repair,
Held, no objection that the proceedings on the record
were in the Court of Queen's Bench for the Province
of Ontario, there being no such province when they
were had, for the mention of the province was sur-
plusage ; nor that there were no second placita or
continuance on the record, for, if necessary, an Kmend-
ment would be allowed. Reijina v. the Besjardin
Canal Co., Q. B. 374.
353. — A copy of an indictment for higli treason may be
liad by the consent of the Attorney-General. Rex v.
McDond, Tay. 299.
354. — Semhle, that a person tried for felony and acquitted
can only obtain a copy of the indictment and record
of acquittal, to be used in an action for malicious
prosecution, on the fiat of the Attorney-General, and
the granting or refusing such application cannot be
reviewed by this court. The application here was for
a rule calling on the Attorney-General to show cause
'*'f*]
INDICTMENT.
133
Avliy judgment of acquittal should not be entered on
the indictment.
JlchI, that the indictment not ' ing a record of this
court, or brou<j;ht into it hy cerimran, the court had
no jurisdiction, liediiui v. Ivy, 21 (■. P. 78; U. S.
c. 1V4, s. 181.
855. — An indictment charging; a misdemeanour against a
registrar and his deputy jointly is good if the facts
establish a joint offence. A deputy is liable to be
indicted while the principal legally holds the office,
and even alter the deputy 1 iself has been dismissed.
Reijiud V. Jinijdiitiit, 4 C. P. -71).
i35G. — The indictment charged one B. with obtaining by
false pretences, from one J. T., two horses with intent
to defraud, and that the defendant was present
aiding and abetting the said B. the misdemeanor
aforesaid to commit,
Held, good, defendant being charged as a principal
in the second degree, llcfjina v. Connor, 14 C. P. 529.
357. — The court can entertain an application to quash
an indictment at any time. An indictment within
II. S. C. c. 174, s. 140, need not follow the exact lan-
guage of the information. That section does not
prevent the finding of any indictment founded upon
the facts disclosed in the depositions. Rcfiina v.
Howes, 8 Can. Law Times 417, Man.; R. S. c. 174,
s. 143.
358. — It is not a misjoinder of counts to add allegations of
a previous conviction for misdemeanour as counts to
a count for larceny ; and the question, at all events,
can only be raised by demurrer or motion to quash the
indictment, under 32-33 Vict. c. 29, s. 32 ; and where
II
m
134 CUIMINAL DIGliST.
there has been a (leiiiurrer to such alleviations as are
iiiHulKcient in law, and judj^'uient in favour of the
prisoner, hut he is convicted on the felony count, the
court of error will not re-open the matter on the sug-
gestion that there is misjoinder of counts. Uc<jina v.
il/rjso//, 22C. 1\ 240.
359. — The prisoner was indicted on two sets of counts,
one charging him as a citi/en of '.he United States, the
other as a subject of Her Majesty. The learned judge
at the trial refused to put the crown to an election
between the two sets of counts, and the court upheld
his ruling. Iic;/iiiit v. Schuol, 20 Q. ]3. 212.
360. — Counts for ditTerent misdemeanors of the same class
may l)e joined in the same indictment, lleiiina v.
Ahrakams, 24 L. C. J. 325 ; 1 Q. B. K. 120, 1880.
301. — Although it is not generally allowable to include
under dilferent counts of one indictment two dift'erent
felonies, vet the same offence m.iy be charged in
different ways in ditYerent counts. Thus, in one count,
the charge may be of having stolen wood belonging to
A., and in another count, of having stolen wood be-
longing to B. Jit'niiKi V. Falkner, 7 11. L. 544, 1870.
302. — An indictment against a deputy-returning olHcer at
an election, for refusing, on t)ie requisition of the
agent of one of the candidates, to administer the oath
to certain parties tendering themselves as voters, was
Held, bad on demurrer, for omitting the name of the
agent. Reijina v., Bennett, 21 C. P. 235,
363. — Where an indictment for appropriating certain
property of a bank, to wit, " 75 shares of the stock of
the Monti jal Telegraph Company," was obje(5ted to
• J M
JUUY.
135
on tlic {:;ronn{l that it did not allofje the Htock to he
that of !in incorporated company, the words " a hody
corporate " were ordered to he added. lxc<fina v.
Paqud, 2 L. N. MO, 1871) ; 11. S. c. 171, s. 1-13.
3G4. — A count in an indictment may he struck out, hut an
alle;:;ation cannot he amended. Riu/iiui v. Leonard,
3 L. N. 138. 1880; U. S- c. 174, s. 143.
VI. -JURY.
305. — By 32-33 Vict. c. 29, s. 44, every person quahfied
and summoned to serve ais a juror in criminal cases
according to the hiw in any province, is dechired to he
quahtied to serve in such i)rovince, whether such laws
were passed het'ore the British North America Act or
after it, suhjoct to and in so far as such laws are
not inconsistent with any Act of the Parliament of
Canada.
By 42 Vict. c. 14 (0), and 44 Vict. c. 6 (0), the mode
of selecting jurors in all cases, formerly regulated by
26 Vict. c. 44, was changed. The jury was selected
according to the Ontario statutes, and the prisoner
challenged the array, to which the crown demurred,
and judgment was given for the crown. The prisoner
was lound guilty and sentenced, and he then brought
error.
13C CRIMINAL moKbT.
Ildd, per Haoarty, C.J., tliat tlie Dominion Statute
was not iiltni rirt'H by reason of its a(lo)»tin<^ and
applyin*^ iJie laws of Ontario us to juroi's to criniin'il
procedure.
Semhlv, that under section 131) Con. Stat. U. C c. 31,
where no indifference or frauduhnt dealinf^ of the
sheriff is shown, any irre<;uhirities are not assignable
for error.
Per AuMouR and Camrron, JJ. — The objection raised
by the prisoner was not a f:;ood ground of challenge to
the array.
Qud're, whether when such a question has been
reserved by a judge at the trial, it can afterwards be
made the subject of a writ of error. U<'(iinn v. (yUoiirkc,
1 Out. Rep. 4(54 ; 18 L. J. N. S. 23 'J ; 11. S. c. 174,
8. 1(50.
36G.— The statute 32-33 Yict. c. 29, s. 44, is not nltnt vires.
The word tojicther is not essential in an indictment
against two persons for robbery to show that the offence
was joint, llctiina v. Provost, 8 L. N. 395 ; M. L. R.
1 Q. B. 477 ; R. S. c. 174, s. IGO.
367. — It was objected, on error, to the record of judgment
on a conviction for murder, that the only authority
shown being that of oyer and terminer, the award
" therefore let a jury thereupon immediately come,"
was unauthorized, and a special award of venire
facias was requisite ; but
Held, assuming, but not admitting, that in England
there is a difference in this respect between the power
of justices of oyer and terminer and of gaol delivery,
and that the record showed no authorit}' to deliver
the gaol, that in this country, by the Jury Act,
.H'RY.
137
C. S. U. C. c. 81, both liiivo Ili(> 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<j; lifty-four jurors from York and
thirty from Peel. Only those from York, however,
attended, and the prisoner was tried by a jury r/c
medictatc, including' six of these jurors, upon an indict-
ment found and i)leaded to at the previous a?sizes in
October. On motion for a new trial, or n-niir <lc novo,
because tlie precept and panel should have been for
Y'ork only, not for the united counties.
Held, per DuAPKJi, C.J., that the objection, if avail-
able at all, must be taken by writ of error.
Per IIagarty, J., no objection would lie. l\<'(iina v.
Kenned I/, 20 Q. B. 32().
361). — As to the trial of an indictment for fraudulent dispo-
sition of goods under the insolvent law, whether by
common or special jury, see Retina v. Kerr, et oL,
20 C. P. 214, Ont.
370. — The accused is not entitled to have communication
of the list of jurors before they are called. In trials
by a mixed jury, the jurors should be called alterna-
tive'v from the list of English names and the list of
French names. The accused is entitled toM -jury de
1J)H
rUIMINAL DKJKHT.
mt'il'u'Jdte liiuiixr in cjiscs of mistlcinoanor. HciiiiKi v.
Mniiiiiir, V.\ Q. L. IJ. \H\, WJ, giic. ; U. S. e. 174,
871. — Wlit'ic tlio prisoner was iiulicted on a cliargo of
utt(!rin'4 foi't^'ed paper,
Jfcld, tliat it \va,H not eoiiipeteiit for tho eourt to
order tlu! trial by jury of a preliminary qiiestioii, raised
1)V [)rison(U''H counsel, to thu titfect that the [jrisoner
had been extradited from tho I'nited States on a
ehar<;e ot forgery. llc<iiii(i v. Pdxton, 10 L. C. J. "21*2,
Q. B. ISW).
37'2. — Oil a trial for misdenieanor the crown has the same
rif^ht of ordering a juror to stand aside, without sliow-
in;j; cause, until the i)anel i-* exhausted, as in a felony.
Hctl'uui V. Iloiian, 1 L. C. L. J. 70; Ixcii'uni \. licn-
j'lmin, 4 C. P. 17U ; 11. S. c. 174, s. KM.
{^3. — On a ease reserved,
Held, that even before tho lirst of January, 1870,
wlu.'H the provisions of ;i2-3;} Viet. c. '2S), came into
force, tho crown, on a trial for misdemeanor, mijjsht,
without showin<^ cause, order jurors to stand aside
until the panel had been ^one throuj^h. Itcijinn v.
Fntiier, 14 L. C* J. 245, Q. 13. 1870 ; il. S. e. 174,
s. 1()4.
ii74.— -An<l on a trial for felony tho crown may, without
showing cause, direct a juror, on his name being called,
to stand asid(% and on the pane! being read over a
second time, may, without showing cause for cliallenge,
; direct tho same juror to stand aside the second time,
! and so on until the panel is exhausted, that is, until it
iinot be not without si
nppc
.)i^i"y
j<
Ue(lina v. Lacomhe, 13 L. C. J. 259, Q. B. ; R. S. c. 174,
8. 164.
JUUY,
139
Wlb. — And when to obtiiin nix jmors spiiikint^ the hm^iia^'o
of the defence, nil H[)eakinK that lim^uaRu liave heen
called, the crown is still at liherty to cliallcnj^e by
"stand aside," and is not bomid to show cause until
all the ))an('l is exhausted. /A., and 18 L. C. J. '242 ;
K. S. c. 171, s. KM.
37G. — V[nm an indictment for conHpiracy to procure by
fraud the return of one F. as a member for the legis-
lative assembly,
//('/(/, that the crown was entitled to challenge any
of the jurors peremptorily, without assi^nin^ a cause,
initil the ])iuul had been exhausted. JinjiHU v. Fel-
loircs, V.) t,). 15. 48; U. S. c. 17-1, h. 1()4.
877.— The 87 Vict. c. 38, k. 11, enacts that the ri^ht of the
crown to cause jurors to stand aside shall not be exer-
cised "on a, trial of any indictment or information by
a private .prosecutor, for the publication of a defania-
torv
libel.
Jlchl, to include all cases of defamatory libels upon
individuals, as distin<:;uished from seditious or blas-
phemous libels ; and that the fact of the prosecution
being conducted by a. coutisel a[)pointed by and repre-
sentin<^ the attorney-general would make no dilTerence.
Uqiinn V. Pattcson, 3(1 Q. B. 127 : li. S. c. 174, s. 1(55.
The judge, at the trial, allowed the crown counsel in
such a case to direct jurors to stand aside, but, after
the verdict, entertaining doubts, he reserved a case for
the opinion of the court as to the propriety of his
having permitted it.
Held, that he was clearly precluded from such
reservation by having allowed the right when claimed,
and that such question \vas a question of law which
fwr-r M
t
ii
140
CRIMINAL niOKST,
arose on the trial, within the meaning of the statute.
//;. li. S. c. 174, ss. 251), 2()G.
378. — The j)risoner should challenge before the juror takes
th.e hook in his hand ; hut the judge, in his discretion,
ma.y allow the challenge made afterwards, before the
oath is fully administered. Reijina v. Kerr, B L. N.
299, 1880.
379.-- After some jurors had l)een peremptorily challenged
by the prisoner, and others directed by the crown to
stand aside, and when only one had been sworn, one
M. was called and challenged by the prisoner for cause.
At the suggestion of the court, and with consent of
counsel, ]\[. was directed to stand aside by the crown
"till it was ascertained whether a jury could be em-
pannelled without him, on the understanding that if it
appeared necessary or expedient the challenge for
cause should be tried in the usual way." After the
prisoner had made nineteen peremptory challenges, a
juryman was called whom the prisoner desired to
challenge peremptorily. The counsel for the crown
then asked that the question of M.'s competency should
be tried in the usual way. 'J'he prisoner's counsel
objected, but the ju'lge ruled with the crown, and he
certified that he so ruled because it was in accordance
with the arrangement under which the juror was
directed to stand aside ; that no exception was taken to
this ruling ; that he was not asked to note any objec-
tion to the mode of empannelling the jury; and that
he was first asked to reserve the question after the
assize had finished, when upon consent of counsel
for the crown it was added to the other questions
reserved,
Held, that the jury were properly empannelled.
Uegma v. Smith, 38 Q. B. 218.
mmm
JURY.
141
380.-- Upon a trial for murder, after the usual notice of rij^ht
of challenj^e, two jurymen were sworn without challenge.
J. H. was then called, and a person came forward and
was sworn. Others were called, and challenged ; and
after another was called an<l sworn without challenge,
the prisoner's counsel ohjected to J. H., as ho was a
witness in the case. Upon inquiry he was found not
to he the person intended to he called on the jury,
heing not only a witness, hut not a resident in the
counties, and therefore not (qualified as a juryman.
Upon consent of counsel for the crown and prisoner,
he was allowed to i\'tire, a "id others were called and
sworn, tlie prisoner exercising the right to challenge
till the jury was chosen. After conviction, upon motion
for {\, new trial,
Held, 1st, that J. H. (improperly sworn) was legally
discharged from the jury; 2nd, that the right of
challenge as to those previously sworn was not therehy
re-opened, their re-swearing not heing rendered neces-
sary ; Brd, that the prisoner was properly tried hy the
twelve, although thirteen were sworn to try him.
RajiiKi v. Couher, 1.. C P. 291).
: I:
li
■ I
381. — On a trial for murder the prisoner desired to challenge
one S., one of the jurors called, for favour, alleging
sutticient cause. The judge ruled that he must first
exhaust his peremptory challenges, and this point was
raised hy plea and demurrer, and formally decided.
The entry on the record then was that, in deference to
the judgment, the challenge was taken and treated hy
the prisoner and hy the attorney-general, as a peremp-
tory challenge for and on hehalf of tlie prisoner.
Afterwards, having exhausted his twenty challenges,
including S., he claimed to challenge peremptorily one
H., contending that hy the erroneous ruling he had
I I M
142
CRIMINAL DIGEST.
I If
I nil
been compelled to challenpie S. peremptorily, and
should not be obli<:];ed to count him as one of the twenty.
This was also entered of record, and decided against
him,
Held, 1st, that the prisoner was entitled to challenge
for cause before exbausiing his peremptory challenges ;
that error would lie for the refusal of this right ; and
that had S. been sworn there must have been a venire
(If iioro ; but,
Held, also, 2nd, Morrison, J., dissenting, that by
the peremptory challenge of S., wbich excluded hira
from tbe jury, the first ground of error was removed ;
and tliat error on the second challenge could not be
supported, for the prisoner had in fact had twenty
peremptory challenges, and the peremptory challenge
of S., being in deference to the ruling of the judge, did
not make it' the less a peremptory challenge. Whelan
V. Refiina, 28 Q. B. 2. Affirmed in appeal, 28 Q. B.
108.
382 — In a case of felony in which one half of the jury,
on the application of the prisoner, were sworn as being
skilled in the Fre^ich language, and it was discovered
after verdict that one of such French half was not so
skilled in the French language, '
Held, that the trial and verdict were null and void,
and must be set aside. liegina v. Chamaillard, 18
L. C. J. 149, Q. B. 1873. ,. \
383. — And where the defendant has asked for a jury com-
posed of persons one-half speaking the language of the
defence, six jurors speaking that language may first be
put into the box, before calling any jurors of the other
language. Rcgina v. Dougall, et al., 18 L. C. J. 85,
Q. B. 1874.
:ed
so
1
JURY.
143
884
Wl
lore Ho
bert
Grant was ealle
d from tl
16 panel as
one
of the
jui'y.
and after conviction, but
before
the
j"»'y
left the box,
it was discovered that Robert C
fane
bsul,
by mii-
itake.
answered to the
name of
Grant,
and
be
her
hud served in his stead ontlie jury, the court lu^ld that
there had been a mistrial. lu'niiia v. Feovc, '6 Q. L. li.
211), 1877. liraiiHi v. BriHchois, i> 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 arraigne<l and tried on the linding of the
coroner's jury. Rccfina v. Trcntldnij, 18 L. C. J. 158,
Q. B. 1873 : R. S. c 174, s. 2 r.
3'JO. — A coroner's jury found the cause of a death into
which they were inquiring, to have heen disease,
adding that it was accelerated hy an overdose of certain
drugs taken in excess, and improperly compounded,
prescrihed and administered hy one F., as a cholera
preventative; and that F. was deserving of severe cen-
sure for the gross carelessness displayed by hira in
such compounding and prescribing. This inquisition
having been brought up by certiorari, granted on the
application of F., the court refused to quash it, holding
that the imputation which it contained, not amounting
to any indictable offence, gave hira no right to have it
quashed, and that under the circumstances, public
justice did not require their interference.
QiKere, whether the affidavits were properly entitled,
The Queen (plaintiff) v. Ilobert Farley (defendant).
Retina v. Farley, 24 Q. B. 384.
391. — The prisoner, charged with murder committed in the
Kootenay district, was brought for trial in a court of
oyer and terminer held at Kamloops, under the Assize
Court Act, 1875, by one of the Supreme Court judges
of British Columbia, who was also named in the com-
mission of oyer and terminer issued by the Lieutenant-
TRIAL.
145
1 the
ft of
ssize
(Iges
iom-
lant-
Governor, The prisoner pleaded to the jurisdiction,
stating that the scene of the homicide was in Kootenay
district ; that no order clianging the venue liad heen
made under 32-38 Vict. c. 29, s. 11, (Rev. Stat. c. 174,
s. 102); that, in the ahsence of such order, he couhl
not he tried elsewhere than in Koot'uay, and hy a jury
of the ri.siic ; and that the court professing to sit under
a commission of the Lieutenant-Governor was impro-
l)erly constituted.
By AValkem, J., that as British Columhia had never
at any time heeii divided into districts for purposes
relative to the administration of justice in criiuinal
cables, the province was hut one venue ; that the Lieu-
tcnant-Governor is authorized, under the British North
America Act, s. 121), to issue commissions of oyer and
terminer ; that even if the commission were invalid a
court of 03'er and terminer presided over hy a judge
of the Supreme Court, would he under the comhined
effect of the Judicature Act, 1879, and the Assize Court
Act, 1885, properly construed.
Held, in error, that the province had heen divided
into districts hy tiie Sheriffs' Acts of 1873 and amend-
ments ; and that the prisoner had heen improperly
arraigned at Kamloops. llegina v. Mallott, 7 Can.
Law Times, 07, B.C.
392. — The attempt to procure a woman to make a false
atirtdavit consisted of a letter written hy defendant,
dated at Bradford, in the county of Siracoe, purporting,
hut not proved, to hear the Bradford post mark, and
addressed to the woman at Toronto, where she received
it,
Held, that the case could he tried at York.
St'inhlc, per Draper, C.J., if the post mark had heen
proved, and the letter thus shown to have passed out of
F.C.D.
10
i!i n
146 CRIMINAL DIOKST.
defendant's hands in Simcoe, intended for the woman,
the offence would have been completed in that county,
and the indictment only triable there.
Per Hagauty, J., the defendant in that case would
still have caused the letter to be received in York,
and mij^ht be tried there. Iti'iiina v. Clement, 16
Q. B. 2<J7.
3'J3. — The prisoner, at Seaforth, in the county of Huron,
falsely represented to the a;j;ent of a sewing' machine
company that he owned a lot of land, and thus induced
the agent to sell machines to him, wliich were sent to
Toronto, in the county of York, and delivered to him
at Seaforth,
Held, that the offence was completed in Huron, and
could not be tried in York. Iteijinn v. Freithenheiiner,
26 C. P. 139, Out.
894.— /ft'/^^ that 32-33 Yict. c. 29, s. 11, does not authorize
any order for the change of the place of trial of a
prisoner in any case where such change would not
have been granted under the former practice, the
statute only affecting procedure. Retina v. MeLeod,
5 P. E. 181.
895. — The prisoner, second mate of lite Star of Kuijland,
was tried before the Court of Queen's Bench, Quebec,
on an indictment for manslaughter. He had grievously
ill-treated on the higli seas a seaman of the name of
McK. so that he had to be put on shore at Kamou-
raska, where he died ; his tn.ath, according to medical
testimony, having been accelerated by the ill-treatment
he had received. On a reserved case,
Held, that in order to prove that a steamer upon
which a crime was committed was a British steamer,
^
TRIAL.
147
)f a
ot
n
the
,eo(i
DUt,
lebcc,
)uslv
Imou-
idical
Iment
M)ll
m
iinei
it was not necessary to file the re^^Mster of the st. ,uner,
and it is sufficient to establish that she sailed under the
British Hag. Regina v. Moore, 2 Q. B. 11. 52, Q. B.
1881.
800. — But where a person dies in this province from ill-
treiiiment received while on board of ship at sea, the
trial for manslauf^htc' of the author of sueh ill-treat-
ment must take place in tlie district Nvhere death
ensued, and not in the district where the accused was
arrested. Ih.
807. — lii'ld, that the great inland lakes of Canada are
within the admiralty jurisdiction, and offences com-
mitted on them are as though connnitted on the
high seas ; and therefore any magistrate of this
l)rovince has authority to enquire into offences com-
mitted on said lakes, although in American waters.
lier/ina v. >S)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. lie<iin(i v. Buhner, 5 L. N. 92, 1881.
403. — On a writ of error, the record showed that the judge
had discharged the jury after they had heen sworn, in
consequence of the suspicious disappearance of a wit-
ness for the cro\An, and the prisoner was remanded.
Held, that the judge had a discretionary power in
the matter which a court of error would not review ;
that the discharge of the jury was not equivalent to an
acquittal, and that the prisoner might he put on his
trial again. Regina v. Jones, 3 L. N. 309, 1880.
404. — On an indictment for any offence after a prisoner's
conviction, the defendant must first he arraigned and
tried on the oifence charged, and if found guilty, then
TllIAIi.
149
406
407
tlio jurv aro to bo cluir^cd to try wliothcr Iio lias been
Ko previously convicted or not. Ihii'mn v. Ilnrhii,
8 L. C. J. 208, (}. W. 1857.
40"). — A prisoner will be allowed to witlidraw bis plea of
" p;niUy," if it api)ear tbat be may bave been nndrr
some misa])prelienKion wben be pleaded, and nn'<:;lit
tberel'ore sulTer injury. Riui'nttt v. Ilinldcll, '20 L. C..).
301, Q. B. 187G.
— Two parties accused of tbe same offence are not
entitled to a separate defence. Itaihin v. }[cC()it<iJn/
,(■ Inriii, 5 It. L. 74C», Q. IJ. 1874.
— Persons on trial for felony may make full defence by
two counsel and no more, and before a jury wbolly
composed of persons skilbnl in tbe langua<i:e of tbe
defence. Ixfi/iiia v. JJaotis-t, 8 L. C. J. 85, Q. h. 18(35.
408. — A party prosecuting under tbe *28tb section of tbe
Crimin.al Procedure Act of 18G9 lias no rigbt to be
represented by any otlier advocate tlian tbe representa-
tive of tbe Att(jrney-General. licaiiKi v. .S7. Amour,
5 E. L. 4(;<), (,). n. 1874 ; 1\. S. c. 174, s. 140.
409.— On tbe finding of an indictment for perjury, applica-
tion was granted to attacb tbe body of tbe defendant
for default, wben counsel ajipeared and asked to be
allowed to plead *' not guilty,"
llrhl, tbat tbe defiiudant must submit to tbe juris-
diction of tbe court bt'fore be can be allowed to take
any proceedings tberein. Jicfiiiin v. Md.riccll, 10
L. C. n. 45, (,). n. 18()0.
410. — After tbe prisoner lias been given in cbarge to
tbe jury, tbe trial maybe continued over to anotber
day for cause deemed sut'ticient, sucli as tbe sudden
illness of tbe counsel for tbe defence. Rcijina v. Mitrphy,
2 Q. L. U. 383, Q. 13. 1875.
^b I 'i
IW'
150
CUIMINAL DIGEST.
VIII.-EVIDENCE.
411. — Where an enquiry was held by tlie lire marshal,
appointed under the statute of Quebec to hold such an
investiffation into the cause of the lire in the premises,
and the accused, before any charj^e had been hi id
against liini, made a deposition under oath before said
fire marshal,
llchl, that such deposition was properly admitted
as evidence agaiiist him on his trial, except with
regard to such questions as tended to criminate him,
and to which he had objected. Retina v. Cootc, 18
L. C. J. 103, r. C. 187:3.
412. — The rule of law excluding the sworn statements of a
prisoner under examination apply only to his exami-
nation on a charge against himself, and not when the
charge was against another; for in the latter case, a
prisoner is not obliged to say anything against himself,
but if he volunteer such a statement, it will be admis-
sible in evidence against him. Explanation of the
pri'iciple on which the statement of a prisoner under
oath is excluded. Riujina v. Field, 10 C. P. i>8.
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. Hc<iinn v. Fcllowcn, ct <i}., 19
C. P. 48.
420 — When the jury have been cautioned as to acting upon
the unconfirmed testimony of accomplices, no fault
can be found with the admission of their evidence.
lti'(jina v. Scddons, 10 C. P. 389.
421. — In this case, being an indictment for soliciting P.
and L. to steal money of the Gore Bank, tlie jury were
told that the testimony of the accomplices was not
III
154
CRIMINAL DIGEST.
sufficiently corroborated to warrant a conviction, where-
upon they came into court stating that they thought
the prisoner guilty, but that he ought not to be con-
victed on tlie evidence. They were then tohl that they
ought to acquit : but after a short interval they
returned a verdict of guilty. Before recording their
linding, the presiding judge recommended them not to
convict on the evidence, saying, however, that they
could do so if they thought proper ; they, nevertheless,
adhered to their verdict,
JFcld, no ground for a new trial, lb.
422. — The prisoner was indicted for unlawfully using an
instrument on one J. L., vith intent to procure her
miscarriage. J. L. was called for the prosecution to
prove the charge, and in cross-examination she stated
that she had not told II. A., H. II., and M. T. that
before the prisoner had operated on her she had been
operated on for the puri)ose of procuring a miscarriage
by Dr. B. H. A., H. R., and M. T. were called for the
defence, and swore that J. L. had so stated to them.
Dr. J3. was then called by the crown, and ho swore
that he had not operated on J. L., as stated.
Held, that the evidence of J)r. 13. was admissible,
Ildd, also, that the omission of the learned judge at
the trial to tell the jury that the evidence of an accom-
plice ought to be corroborated does not entitle tl
prisoner to liave the conviction reversed ; and in this
case there was no necessitv for the caution, as there
was abundance of corroborative evidence. Itciiina v.
Andreics, 22 L. J. N. S. 287; (5 Can. Law Times, 39',,
Ont.
423. — SemJdc, tha^ the more -"easonable rule to adopt
in such (' .s is, that, notwithstanding the caution
m
EVIDENCE.
155
of the magistrate, it is necessary ir the case of a
second copifession, not merely to caution the prisoner
not to say anything to injure himself, hut to inform
him that the first statement cannot he used against
him. But in this case, it having afterwards appeared
that the prosecutor had offered direct induceiUents to
the prisoner to confess,
Held, that if the judge was satisfied that the promise
of favour thus held out had induced the confessions,
and continued to act upon the prisoner's mind, not-
withstanding the warning of the coroner, he was right
in directing the jury to reject them. Ruijina v. Finklc,
15 C. P. 4553.
42-1:. — ■Held, also, that if the judge suspected the confessions
had heen ohtained hy undue influence, such suspicion
should have been removed before he received the evi-
dence. It is a question for the judge whether or not
the prisoner has been induced by undue inlluence to
confess. Ih.
425. — Sciiihic, that when the names of other jn'isoners are
mentioned in the confession, the proper eourse is to
read the names in full, but to direct the jury not to
pay any attention to them. fh.
42(5. — Th(! prisoner, after his. committal for trial, and
while in the custody' of a constabh;, made a stat(iment,
upon which the latter took him before a magistrate,
when he laid an information on oath charging iw 'her
person with having suggested the crime, and asked
him to join in it, which he accordingly did. Upon the
arrest of the accused, the prisoner made a full deposi-
tion against him, at the time admitting his own guilt.
Both information and deposition appear to have becii
voluntarily made, uninfluenced by either hope or
v^
yaa^l
; I ' ' ■• '
tifiiiif
15C CRIMINAL DIGEST.
threat ; but it also appeared that the prisoner had
not been „autioned tliat his statements as to the other
rai<i;ht be f^iven in evidence against himself, though he
had been duly cautioned when under examination in
his own case,
HcM, following Roijina v. F'lnldr, 15 C. P. 453, that
both the information and deposition were properly
received in evidence, as being statements voluntarily
made, uninliuenced by any promises held out as an
inducement to the prisoner to make them, and that
too, though made under oath, litfiina v. Field, 1(5
C. P. 98.
427. — Upon a prosecution for uttering forged notes the
deposition of one S. taken before the police magistrate
on the preliminary investigation was read, upon the
following proof that S. was absent from Canada; li.
swore that S. had a few months before left Pi.'s house
where she, (S.) had for a time lodged, that she had
since twice heard from her in the U.S.A., but not
for six months. The chief constable of Hamilton,
where the prisoner was tried, proved ineffectual
attempts to find S. by means of personal enquiries in
some places, and correspondence with the police of
other cities. S. had for some time lived with the
prisoner as his wife,
llchl, upon a case reserved, Camrron, J., dissenting,
that the admissibility of the deposition was in the dis-
cretion of the Judge at the trial, and that it could not
be said that he had wrongly admitted it. licifina v.
}^dsou, 1 Out. Pep. 500 Q. B. ; P. S. c. 174, s. 222.
428. — Held, that absence was what it was necessary to
establish, under 31-82 Yict., c. 30, s. 30, and that this
could be prove(' by evidence that the parties were not
EVIDENCE.
157
present, and could not be found at their domicil or
usual places of abode. The testimony of the high con-
stable, uncontradicted, established the absence, and
the deposition of the absent witnesses mi«fht be read.
Re(iuiii V. Hi'tiiia, llamsay A. C. 185 ; li. S. c. 174,
8. 12-2.
429. — Affidavits taken before a magistrate at a preliminary
investigation, but not in the presence of the accused,
cannot be used as evidence before the grand jury, even
when the aftiants are absent. Uciiiwi v. Carhray, 113
Q. L. 11., 100, Que. ; K. S. c. 174, s. 222.
480. — The defendant on his trial upon an indictment can-
not give evidence for himself, nor can his wife be
admitted as a witness. Retina v. Humphreys, 9 Q. J3.
837, ; l\. S. c. 174, s. 217.
481. — On an indictment for assault and battery, occasioning
actual bodily harm.
Held, that the defendant is not a competent witness
on his own belialf under 48 Vict. c. 87. lleijina v.
Riehanhon, 46 Q. B.; 18 L. J. N. S. 10; 1{. S. c. 174,
ss. 216, 217.
432. — The prisoner was indicted for an indecent assault.
At the close of the case for the crown, the prisoner
tendered himself as a witness in his own behalf. The
judge at the trial ruled that as upon the evidence
adduced an indecent assault had been proved, the
prisoner could not be a witness, but reserved the point
for the opinion of the Court of Queen's Bench, and
that court affirmed the C(jnviction. Reyina v. Mc-
Donald, 80 C. P. 21, note ; K. S. c. 174. s. 216.
433. — AVliere a prisoner was indicted under 32-38 Vict,
c. 20, s. 47, for an assault occasioning actual bodily
harm.
,iiS
'^
158 CRIMINAL DIGEST.
Held, that he could not be deemed to be on his trial
on an indictment for a common assault, so as to entitle
him to be admitted and p,[ve evidence as witness on his
own behalf, under 41 Vict. c. 18, s. 1, (I)) ; Reglna v.
Banter, 80 C. P. li) ; R. S. c. 174, s. 21G
484. — Two persons accused of tlio same offence, but in two
separate indictments, are competent as witnesses in
favor of the crown, and nrjainst one another, or the
one for the other, and that even when a verdict has
been rendered against them, — provided the sentence;
has not b(>en 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()<i;et"nor about
nine o'clock afterwaids,
Helil, tbat tliore was not Kunioiont (fvidence to war-
rant tiio prisoner's conviction, lor tliero was no direct
proof timt lie was present wlien tbe blow was struck,
and no evidence whatever that be and tlu; others were
tojJiether with any common unlawful purpose ; and the
words spoken were in themselves uiiinn)ortant. Uciiina
V. Gartleii, 27 Q. B. Gl;i.
449. — Two indictments were preferred against the defen-
dants for feloniously destroying the fruit trees respec-
tively of M. and C. The offences charged were i)roved
to liave been committed on the same night, and tbe
injury complained of was done in the same manner
in both cases. The defendants were put on their
trial on the charge of destroying IM.'s trees ; a)-.d evi-
dence relating to the oifence charged in the other
indictment, was admitted as showing that the offences
bad been committed by the same person,
llcUJ, that the evidence was properly received.
Uciihiii v. McDoiKihl, cf al., 10 Ont. 558, Q. 15.: 5
Can. Law Times, 581) ; 22 L. J. N. S. 22.
450. — When goods are obtained by a fraud, the court will
permit, without previous notice to the accused, the
proof of similar frauds having recently been practiced
upon others, in order to show the intent of the [)risoner.
Queen v. Dtiroeher, 12 Jl. L. C!)7, Q. B.. Que.
451 — The prisoner was indicted along with W,, the lirst
count charging W. with forging a circular note of the
National Bank of Scotland, and the second with utter-
ing it kijowing it to be forged. The prisoner wa.*?
charged with being an accessory before the fact. Evi-
dence was admitted showing that two persons na-ued
m-
KVIDKNCK.
1(55
452
F. and li. liiid l)t't'ii tried and coiiviotcsd in Montreal of
utLerin<^ similar forjj;('d oircnlar notcH ; tluittheHO notes
were printed from tlus same plates as those iitterisd hy
W.; that the prisoner was in Montreal with F., they
having arrived and re^istertul their names tln^re
toj^ether at the sanu; hotel, and occupicid adjoining
rooms. At the trial in Montreal, after F. and H, had
been convicted on one (diargc!, they Jidmitted their
guilt on several others. Jt was also proved that a
number of these circular notes were found on F., and
a number on JI., and these letters W(.'vv. produced on
the trial of the [)risoner.
Jh'Ll, that the evidence was properly received in
proof of the guilty knowledge of tlu' prisoner. liafhin
v. Bent, '22 L. J. N. S., p. 22.
— On a trial for murder, the death of the deceased was
shown to have been caused by his being stabbed by a
sharp instrument. It was proved that the prisoner
struck the deceased, but no instrument was seen in his
hand. For the prisoner, evidence was offered that on
the day preceding the homicide the prisoner had a
knife wdiich could not have inflicted the wound of
which deceased died ; and that, on that day, the
prisoner parted with it to a person who held it until
after the crime was committed.
The learned judge at the trial refused to achnit tliis
evidence,
Held (Galt, J., dissenting), that the evidence was
])roperly rejected, lietjina v. llcvod, 29 C. P. 428,
Out.
45B. — An indictment for an assault occasioning actual
bodily liarm contained a second clause charging a
prior conviction for an indictable offence. The offence
IMAGE EVALUATION
TEST TARGET (MT-S)
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1.0
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('ICIMINAI. DKIKST.
1
» i
(liKclosed by tlic iiKlictiiiciit Wiis not oiu; ol' those for
whicli, lifter a jircivious conviction for felony, adilitional
punislnnent >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/</, that a medical witness, previously examined
for the crown, was ])rop(M-ly allowed to be recalled to
state that, in his oi)ini()n, the injuri{>s found on the
body could not have been so occasioned, lieiiina v.
(i,t<inn, 17 C. V. 580.
455. -The complainant on a trial for rape, with consider-
rJ)le hesitation, stated what had taken place, and
concluded by saying that " the prisoner hud carnally
known her." She was not then pressed with any fur-
ther (juestions, but, after the crown had concluded its
case, the counsel for the defence submitted that there!
was no evidence to go to the jury of the commission
of the crime charged, inasmuch as the complainant
had not stated in her evidence facts from which the
jury could judge whether a rape had been committed
or not. The court then recalled the witness to
liVIDKNtlK.
10?
explain what ahe meant by lier former statcMnent, when
objection was taken l»y the defence on the f^jround that
no fnrther evidence could be adduced. Objection over-
i-uK'(l, jind sovtsral questions })ut, the counsel for the
(U'f(;nce being allowed to cross-examine on the evidence
so elicited. Ilc-jinn v. Jenniiit/s, 20 L. C. J. 21)1,
I,), li. 1876.
450. — The theory of the defence, on an indictment for
murder, was that the death was caused by tlie com-
munication of small pox virus by J)r. ^L, who attended
the deceased, and one of the witnesses for the defenco
(•x[)lained how the contagion could be guarded against.
Dr. M. had not in his examination in chief or cross-
examination been asked anything on this subject,
Held, that he \vas properly allowed to be called in
reply, to state what precautions had been taken by
him to guard against the infection. Rc()ina \\Sp<irman
,tnil GrearcH, C. P., E. T. 1875 ; Hob. .^ Jos. Dig., not
yet reported.
4.')7. -A witness for the crown gave evidence quite different
from a previous written statement made by liim to tho
prosecutor's counsel. He admitted such statement
wlien shown to him, but said it was all untrue, and
made to save himself.
Per Wilson, J. — The prosecutor's counsel was pro-
perly admitted to disprove the witness's assertion as to
how the statement came to be made, for the fact of its
being obtained as he stated would tend very much to
prejudice the prosecution, and was therefore not a
collateral matter, but relevant.
Haoauty, J., inclined to the opinion that the witness
havnig fully admitted his previous inconsistent state-
168
CIJIMINAL niOESI.
meiit, no further evidence relatinfr to it sliould have
been received. lit'niiia v. Jcnrit, et ah, 22 Q. B. 499 ;
R. S. c. 174, 8. 234.
458. — At a trial for murder the prisoner's counsel proposed
to prove by witness his own deposition at the iiupiest,.
and to show by other witiK.-sses that it contained a true
statement of his evidence, although the witness allej^ed
it to be incorrect. The learned judge ruled that the
coroner must be called to prove the depositions. He
was afterwards called to prove them, and the evidence
before offered was not again tendered,
Scmhle, that the ruling as to proof of the depositions
was right, they having been taken before a coroner ;
but,
Held, that the point became immaterial when they
were afterwards proved in accordance with it ; and
that it must be assumed that it was not intended to
adduce the other evidence. Ucf/iiKi v. HamUton, 10
C. P. 340.
459. — The object of taking depositions is not to alTord
information to the prisoner, but to secure the testi-
mony. Ih.
460. — On a trial for murder, the crown proposed to put in
the examination of the deceased in presence of the
prisone. as to the circumstances of the murder for
which the prisoner was on trial, and hnve it read to the
jury as direct evidence of the facts. The production of
this examination was objected to on the ground that it
was taken in the form of an information and complaint
used when the accused was not yet arrested, that is to
say, it was taken as though the complainant were
seeking a warrant of arrest,
^i
EVIDENCK.
1()1)
Hdil, that the examination of a witness under 32-8:i
Vict. c. 80, 8. 29, was inadmissible where there was no
caption to the deposition as given in form M. to show
that a charge had heen made against tlie prisoner, and
that l)e, having knowledge of the charge, had a full
opportunity of cross-examining the witness. The test
of admii.sihility is the opportunity giv(ui the prisoner
to cross-examine, he having knowledge that it is his
interest so to do. Iteijiua v. MUloy, L. N. 95, Q. V>.
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 cont<!ndinf^. on
the one hand, that the appellant was bound to support
his appeal, whilst, on the other hand, the a})i)ellant
alVirmed that tin; appeal was but a new trial, leaving
both litigants in the same respective positions of com-
plainant and accused which existed previously before
the magistrate,
Ifeld, tluit the latter pretension was the correct one,
and the complainant before the court below was ordered
to proceed with his case. (tihh(>nn\. 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{>'<iin<i v. (^hiatri's Patlcs, 1 L. C. li. 317,
g. n. 1851 ; li. S. c. 174, s. 171>.
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<in, 17 ('. V. 581).
4()*.». — Keniarks as to alle{j;e(l misdirection in not directiutj;
that the Jury must l)e satisfied not only that the cir-
cumstanci's were consistent with the prisoner's guilt,
hut that some one circumsttmce was not inconsistent
with his innocence. Ih.
Mi
ise
y,
le
7.
XI. -VERDICT.
470.— On the JiOth Octoher, 1880, in the district of
Kimouski, the plaintiff was tried on an indictment
found against him on a charge of burglary, and the
jury found a verdict of guilty of feloniously receiving,
upon which verdict the plaintiff in error was
I
;
i
r I
M
r
172 CRIMINAL DIOE8T.
sentenced to be confined for two years in the peni-
tentiary,
//r/r/, that no such vcu'dict could he rendered on the
cliarf^e of hur{;lary for which the plaintiff in error was
tried, and the judgment pronounced on such verdict,
was accordingly set aside. St. Lunrcnt v. Retjina,
7 Q. L. li. 47 ; Q. B. 1881 ; II. S. c. 174, s. 193.
m
m
K
i If
471. — Where the prisoner, having been found guilty of
larceny, and sentenced to he imprisoned for life,
petitioned in chanibeis to ho liberated, on the ground
that the sentence was illegal,
Held, that the judge, under such circumstances, had
no power to liberate him, his proper recourse being
by petition to the crown for a remission of the punish-
ment in whole or in part, as the Governor-General
might see lit. Plantc exp., G L. C. li. lOG, Q. B. ISf)!).
XII. ALLOCUTUS.
472. — In capital felonies the allociitKs is an essential for-
mality, the omission whereof renders the sent(mce
void, and a writ of error will lie where the prisoner
prior to sentence was not asked whether he had any-
thing to say. The order made was not that he should
be discharged, as prayed for ; but that he should
return to the court of oyer and terminer to receive
sentence properly. Rai'ma v. Oaijotte, 13 Q. L. li.
214, Que.
CUIMINAI, DIOKHT.
178
XIII. SENTENCE.
473. — A criminal convi»t(ul at a court of oyer and ter-
miner of a capital felony, may he l)rou<j;lit to the
Court of (Queen's Jiencli for sentence. Hex v. Kenrey,
5 0. S. 317.
474. — A sentence for corporal punishment in the ahsence
of the accused is illegal. liCiiinn v. (jiecn, 8 Can.
Law Times, 142 ; li. S. c. 178, s. 31).
See Hcffina v. . mitlt, 46 U. C. li. 445.
lild
nld
live
iX.
XIV. EXECUTION.
475. — 'Ihe estate of a traitor concerned in the rehellion of
1837, and who accepted the henelit of the 1 Vict. c. 10,
is a* once vested in the crown under the 33 Hen. VIII.
c. 20, K. 2, without offence found. Doc d. GiUrpsie v.
Wixou, 5 Q. B. 132.
47(5. — A writ of cxi(ji facias will be awarded hy the Court
of Queen's Bench upon the application of a prosecutor
without its heinf; applied for b}' the Attorney-General.
Rox V. FJrod, Tay. 120.
477. — The crown may issue a ,//. Jn. for tlie sale of lands
and goods in order to satisfy a tine imposed ; and the
person lined may he said to bo indebted, and the fine
to be a debt, livjjina v. DesjaniiiiH Canal Co., 29
Q. B. 1()5.
Lands and goods may be included in the e writ,
and it may be made returnable before the v ration
H\
174 CRIMINAI. niGKST.
of twelvi^ iiiontliH, the crown not being Imund by tbt-
4:1 (ico. III. c. 1. Ih.
Tbis court or a jud^M! may at any tiinti interfere, as
cxerciHinj^ tbe powcrH of tbo court of excbeciuer, to
restrain undue barHbncss or bast(! in tbo execution of
Hucli writ, aItliou;,'b wbat is coniphiiniid of may be
strictly autbori/od. Ih.
>
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 ;^'raiitc<i in cascH of felony.
lleniiin V. Ihtoiist, 10 L. C. ,1. 'I'll ; Ut L. C. M. -iHry :
1 L. ('. L. J. 70 : *2 L. C. L. J. 21), Q. li. 1K(W; . |{. S.
i;. 174, H. 'KiH.
481. — On a motion to s<.'t aside tlic verdict on an indict-
ment for niiiHanco,
lltid, that in ] ower (jina<la, wiieit; trie court was
held h(\fore one jiid«^e in bunco, and never hefore nior«!
than two, the motion for a new trial in cases of sup-
l)osed misdirection became inii)racticable. Jleyiint v.
I'nic,', 10 L. C. it. 117, Q. ii. 1H()().
482.- -Wliere a verdict of jj;uilt\ had been set aside on
account of iiiefJiality in the procedure,
lli'hl, that the Court of Queen's Bench in appeal
bad no power to order a nt.-w trial, and to fix a day
therefor. l{,yin,i v. CliaiiKiilhinl, \H I.. C. .1. Ml>t(,). 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
<u rt'tornri to hrin<4 up the pai)er.s. Jhit this was not a
case of that de.scrii)tion. In all cases of writs of error
that had come hefore the court, there had never heen
a remand of the prisoner wlien the writ iiad heen
maintained. The prisoner, no doul»t, could he tried
aj^ain, for he had never heen in jeopardy. ]3ut the
court could not order a new trial, hecause (he judg-
ment was to the elTect that no crime was charf^ed. The
prisoner was then discharged. Kelbi v. linjiua, Quo.,
g. B. 1882.
•187. — Qxtf.re, whether it is proper tf) grant a new trial
where an individual or a corporation has heen once
acipiitted on an indictment, even in cases of misde-
meanor, liii/ini V. Gnmd Trunk Rjf. Co., 15 Q. B.
21.
MsV TillAl..
I
< I
•ial
luce
B.
IMS. — Wlierc! HL'Vcnil dt-ffudaiits Imvc boon coiivic'uMl. a
lU'W trial, if j^iaiitiMl, lUMst hr to all. Iir<iinu v.
FJIninn. i:> (,». 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<i v. ,s'///-
lir,in, IT) {^). n. IIIH.
AUl. The court lias no power to order a new trial in a
criminal case reser\ed under 14-15 Vict. c. l'.\ : but
only to decide upon any legal exceptions raised
wheth»r there was legal evidence to sustain the indict-
ment, taking it in as strong a sense against the defen-
dant as it will bear, and sui)po.sing the jury to have
given to it credit to its full extent. Ilrfjimi v. /idiif,
12Q. 13. ;M(i.
l'.t:i. One of the prisoner's counsel at the trial, whilst he was
addressing the jury at the close of tin; case, was sud-
•lenly Hjnzed with a lit and incai)acitated frt»m proceed-
ing any further. No adjournment, however, was applied
for, but the other, who was thi! senior counsel, con-
tinued the address to the jiu'y on the prisoner's behalf.
F.(M». 12
Mil
• • i *
}\
178 (Hi.MiNAi, i)i(n:sT.
without niisinj? any objoction tliat lie was placed at a
(lisa(lvanta<j;«' by reason of his colleague's disability;
it (lid not, moreover, appear that the prisoner had
been prejudiced by the aljsence of the counsel allinlrd
to,
llr/il, no ground f'oi" a new trial. Ui'ii'tini v. /•'/(■/,.
l(i C. P. a7!>.
-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<iAUTv, •!., fii'hl, that under the statute a judge is
called upon oidy t(> 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<jhi<i v. Vt'o.s.s-, 28
L. C. .1. 'iC.l ; H L. N. 151.
JIM). — rpon motion for a mw trial ujion an information for
conspiracy tried at nisi inixs upon a record from the
Queen's l^ench.
Held, that atlidavits made hy some of the jurors that
the jury were not unanimous, hut helieved that the
verdict of the majority was suHicient, could not he
receiv(^d as grouiul for new trial. J!<-fiiii(i \. l-'i'lloins,
11) (,). y>. 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. Re<iina v. O.tentine, 17 Q. B. 295.
502. — It was held, affirming the judgment of the common
pleas, that under the 20 Vict. c. 61, the court was
not empowered to grant a new trial in criminal cases
on any ground apart from what was done by either
the court or the jury at the trial such as the alleged
discovery of new evidence, or a disappointment in
obtaining witnesses. Rc<iina v. Oray, 1 A. & E., 501,
jier Sir J. B. Pobinson.
503. — The withholding from the court confessions made
before the coroner, for fear that they would prejudice
the prisoner, would render the application for a new
trial irregular. Repina v. Finkle, 15 C. P. 453.
CRIMINAL DIGK8T.
IHl
XVII.-CERTIORARI.
r)04. — Tlie right of ccrtiornri exists even where the statute
declares there shall be no appeal. There must be some
previous summons or notice to the party charged, of
tlie hearing of the accusation, unless it is dispensed
with by statute, or waived by the party appearing,
pleading and defending. Asking an adjournment for
the purpose of procuring evidence is not necessarily
a waiver, lieijina v. Fvooman, Can. Law Times,
4JM), Man.
.50.5
— The court, upon application for vertinvari, may look
at the evidence to determine the (question of jurisdic-
tion. R('(i'uta V fcUonald, 7 Can. Law Times, 370,
following llatves v. Hart, 18 N. S . Rep. 42, N. S. :
Rvfiiwi v. (ivt'cn, 8 Can. Law Times, \)\) ; VI P. II. 37H,
Ont.
ilOf). — Where an order was granted under 32-38 Vict,
c. 9, s. 11, changing the place of trial from Quebec
to ^[ontreal, and ordering that all the proceedings
had before a coroner there sbould be transmitted to
the Coiu't of (Queen's Bench at Montreal, and such
order for transmission of proceedings being obeyed,
Held, that a writ of certiorari to produce a return of
the proceedings, in order that the inquest might be
(juashed for illegality, was unnecessary, and a petition
presented in chambers for the issue of such writ would
not be granted. liei)iua v. Brti(h/t's, 18 L. C. J. !'4,
Q. B. 1874.
182
ClilMlNAI. I>1<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<lment. Rvfiinn v. Provost, M. L. R.
1 Q. B. 473.
UESEUVEH CASE.
isr.
522. — On a reserved case l)v the jiidK'e of sesKions at Mon-
treal, to obtain the opinion of the court upon tlie
(juestion wliethor the qnarter sessions can try a case
of for<];ery created felony by statute, the ([uestion arose
whether the Queen's JkMioh liad jurisdiction under the
statute to hear sucli a reserved case,
-/Vr rtiriam, the first difficulty is whether this court
has any jurisdiction under the statute to hear a case
reseived hy the judj^e of sessions trying a case under
the Speedy Trials Act. The Act which <:;rants the
criminal appeal is very special. It says, " When any
person has been convicted of any felony or misde-
meanor at any criminal term of the said Court of
Queen's Bench, or before any court of oyer and ter-
miner and gaol delivery, or (piartcr sessions, the court
before which the case has been tried may in its dis-
cretion reserve any question of law which has arisen
on the trial," etc. The question is whether the speedy
trials court comes under any of these denominations.
ITie court is of opinion that the provisions of the law
allowing a speedy trial in certain cases creates a new
jurisdiction, and the law as to the reservation of cases
does not apply to it. The rule is that tiie appeal can-
not be extended beyond the cases laid down. Keserved
case sent back. Itoi/ v. Maloiiin, 4 L. X. 372 : *i
Q. B. ]{. t)6.
■!h
41
! .
18(5
CHIMINAI, nUiKST.
ryl'A
XX. CONVICTIONS.
Hchl, that u police uia^istratt' cannot icscrvu a catjc
for the opinion of a superior court under Consolidate<l
Statutes of U. ('. c. 112, as he is not witliin the terms
of tliat Act.
Ili'hl, also, that a defendant is not entitled to remove
proceedinfi;s hy (wrtioniri to a superior court from a
police uia<j;istrate or a justice of the peace after con-
viction, or at any time, for the purpose of moving for
a new trial for the rejection of evidence, or because
the conviction is against evidence, the conviction not
heing before the court and no motion made to quash
it. But,
Jlcld, that even had the conviction in this case been
moved to be (plashed, and an order )iisi applied for
upon the magistrate and prosecutor for a mandamns
to the former to hear further evidence, which he had
refused, both motions would have been discharged, the
magistrate appearing to have acted to the best of his
judgment and not v.-rongfully, and his decision as to
the further evidence involving a matter of discretion
with which the court would not interfere.
The court declined to hear discussed the question
whether the police magistrate in this case, if appointed
only by the Ontario government, was legally or validly
appointed, as his appointment should have l)een by
the Dominion, the patent by the Ontario government
only being produced, and it not -peariug that a com-
mission by the J){)minion had issued to him, nor that
CONVICTIONS.
IHI
uiiy searcli or en(|iiii v luid Imch niiulc at the pvopcr
otlice as to the laet, the oiil\ other evidL-uce as to the
a[)i)oiMtnu'iit, hesidcs tlie ukto proihictioii of the On-
tario patent, hein^' the (k'fendant's atlichivit. statin}^
that the jnajj;i8trate had no autliority or apjtointnicnt
from tht' i-ro\vu or the (iovernor-(ieneral of [ e Domi-
nion, and thar he knew this " of common and notori-
ous report,'"
//<■/(/, also, that the ninrniation in this ca^e was not
ohjeetionahle for not setting; out tlie false })retences of
wliich the defendant was convicted, as it was in the
form in wliich an indictment might have been fianied :
and moreover the ohjeetion was met by tlu' Ji'i-Hti N'ict.
e. H'i, s. 11, and hy :32-a;{ Viet. e. 81, s. (h. liniinii v.
lUi-hanUou, H Out. iJep. 651 (,). Ji.: ". S. e. 17K, s. 7!> :
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. lie<iin<( v. C'///'. 7 Can. Law Times,
117 ; 12 P. R. 24, Ont.
531. — A statute (32-83 Vict. c. 28) empowered a magistrates
to sentence a person convicted to imprisonment with
or without hard labour for two months, or by a tine
i
liM) ( KIMINAI. UIOKHT.
not oxcnodin^ '!'f>H!'), 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 t<t the tine nf iS'iO and to imprison-
ment lor six months, witli haitl hihonr. 'I'lie nuijority
(if tin' court interi)rete(j the anu'iidin^; Act to nn-an
that the imprisonment ther«' mentioned wiis that of
the previous Act, and that it was only the term that
was uxtench'd. h'l jxulr \l'illi)niis. 111 L. (", .1. 120.
;")}V2.- -On a petition for htihinx miiniK it appeared that llic
petitioner had been condemned by the rucoider under
the provisions of 82-JJ.S Vict. c. 5J2, s. 17, to a line of
J^IOO. and to be imprisoned at hard labour for the
space of six months.
I\;r riiriiini, the statute permits tlirce Kinds of
punishment : 1st, imprisonment not exceedni^ six
months, witii or without hard labour : 2nd, tine, not
exceedin}^, with the costs. !!5lOO; Urd, line and im-
prisonment, not exceedin}* the said p«'riod and term.
It is contended for the conviction that the third
form of peiuilty Jiilows line and imi)risonment nith
hard Jdhonv. To arrive at sudi a conclusion we must
i^^nore not only the connnon U8(! of a technical term,
but the plain meaning' of a word. Iniprisomnent does
not include hard lai»oin", which is an a«i«j;ravati()n ol
the peiuilty, just as is solitary confinement, bread Jiiid
water, and whi[)pin<f. .A<.^ain, imprisonment in liu'
iiiut^uafje of the connnon law has never been held to
permit of any addition. Fine and inn^risomnent are
the comnnnon law inmishments for all n)isdemeanors,
and without the authority of a statute no other punish-
ment has ever been added.
CONVICTIONH.
1!)I
Conviction ijuiikIu'iI in two ciisi's. Lrhiif n- iimh-
iind Ihtl'ii'Miir i-r i>tiitf. 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(<nfession of th<
accuHi'd will not aid this ih-fect. A'r jtartr llniinf, :\
L. C. I!. !M.
AJM. -A Huninions issued for nialicions injury to propi^rty
must hi! f()unde<l on a loiuplaint under oath and a
conviction in which it is stated that the otlVnce was
committed within the last eight days is had for uncer-
tainty. I'ir ixiifr HiutI:, '.\ L. C'. II. tUti, (^Ue.
.■»35. Where the statute creates several offences, one of
which is charged in the information, a conviction for
another offence, suhject to the same penalty, will he
set aside. I\\ jxirte Thninj)Hoii, \'l L. C. .1. 'in't, i)\U'.
r)3().- -Where the prisoner had heen arrested for a theft
committed in the I'nited states, and had sui>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. lte<iina v. Craig, 21
Q. B. 552.
553. — A conviction by a magistrate stated that defendant
did, on, etc., at, etc., being a public highway, use
blasphemous language, contrary to a certain by-law,
which was passed almost in the words of the Consoli-
dated Statutes of Upper Canada, chapter 51, section
282, sub-section 4 ; but there was no statement of the
words used,
Held, bad.
Semble, also, that there was nothing in the evidence
set out giving the magistrate jurisdiction to act. In
re Donellij, 20 C. P. 165.
of
kCt,
Ulg
554. — A conviction, purporting to be under the Consolidated
Statutes of Canada, chapter 93, section 28, charging
that defendant, at a time and place named, wilfully
and maliciously took and carried away the window
sashes out of a building owned by one C, against the
form of the statute, etc., without alleging damage to
» 1 nw
fn
is:
191)
CRIMINAL DIGEST.
any property/, real or personal, and without tinJin g
damage to any amount, was
H<'l(l, bad, and quashed. Ri'<iiii<i v. Casiccll, 20
C. P. 105.
555
— It is not necessary, in a conviction for selling liquor
without a license, to mention the statute under which
the conviction took place, nor that it shouhl appear on
the face of the conviction that the prosecution com-
menced within twenty days of the commiKsion of the
offence, nor to specify that it is a first or second
offence, nor to whom the liquor was sold ; neither is it
illegal to award imprisonment in default of distress,
etc. llciiinn v. Strdclnin, *20 C. P. 182. See also lieid
V. ^fr]V^lilnti<', 27 Q. B. 289.
550. — A. conviction under the Consolidated Statutes of
Upper Canada, cha[)ter 49, section 95, stating that
defendant wilfully passed a gate without paying, and
refusing to pay toll.
Held, good.
Qu<ere, whether it would be sufficient to allege only
that he wilfully passed without paying, without in
any way showing a demand, liegina v. Caister, 30
Q. B. 247.
C: 1.
n
t
'^
1 /:
' \
; B u
■i i
i
/
557. — On a motion to set aside a conviction and warrant
of commitment on the gi'ounds, 1st, that the convic-
tion was not in the magistrate's olltice, but in that of the
clerk of the peace ; 2ud, that the conviction did not
contain a clause of distress; and 8rd, that the con-
viction only warranted the imprisonment, without
hard labour, whereas the prisoner had been committed
with hard labour,
CONVICTIONS.
197
Held, tliat the prisoner must b>i (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. R<u/ina v. Ilolden, G
Can. Law Times, 508 ; 1 Man. Law liep. 579.
575
— A commitment on a judgment for a penalty and
costs, not seating in the body of the commitment a
recital of the amount of costs, is bad. Ilci/ina v.
Brxjht, 1 L. J., N. S. 240, Ont.
commit:mknt.
201
nVO. — Where the warrant of commitment for soiling; liciuors
contrary to the provisions of the Mining Act did not
mention any specilic sum as being th(! costs of the
arrest and conveying to jail, it was set aside, licnimi
V. Poiilin, 12 Q. L. li. 54, Que.
r>77. — 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<iin<\.
v. JoncH, 8 Can. Law Times, 332 ; II. S. c. 178, s. 62.
•^
RT
202
CUIMINAL DIOEHT.
681. — The accused was convicted before a inagiHtrate, and
condemned to pay a fine and costs, with imprisonment
in default of ))}iyment. Upon his arrest he paid the
constable part of the sum exigible, and was released.
It was held that he could not be arrested in default of
liis paying the balance. Kx parte Lupointe, 11 Q. L. 11.
251, Que.
XXII.-BAIL.
•!
582. — It is laid down as law by the most distinguished
judges in England that the principle upon which a
party committed to take his trial for an olYence may
be bailed is founded upon the legal probability of his
appearing to take his trial ; that such probability does
not in law exist where a crime is of the highest mag-
nitude, the evidence in support of the charge strong,
and the punislmient the highest known to the law.
And where the penalty is very severe bail will not be
granted. Jliwt c.v parte, 8 Q. L. li. 28, 1882; 1{. S.
c. 174, ss. 81 et seq.
583. — A recognizance ot bail put in on behalf of a prisoner
recited that he had been indicted at the court of
general sessions of the peace for two separate offences,
and the condition was, that he should appear at the
next sittings of said court, and plead to such indict-
ment as might be found against him by the grand
i! \-
I
KAIL.
203
jury. At the next of said sittinpis the nccuHed did
not appear, and no new indictment wau found against
him,
Held, that the recitals Hufticiently sliowed the inten-
tion to he that the accused shouhl api)ear and answer
the indictments ah-eady found, and that an order
estreatinp; the recognizance was properly made. He
Oanthrcaux's Bail, 9 V. K. 31.
584. — On an information against the hail or surety of a
person charged with suhor nation of perjury,
Held, that, after the accused has pleaded guilty to
an indictment, no default can he entered against him,
except on a day fixed for his appearance, and that it is
the duty of the court to estreat the recognizance in
cases like the present. Retina v. Crotaau, 9 L. C. R.
67, Q. 13. 1858.
585. — And in another case of the same kind.
Held, that the mere failure of the party to answer
when called, in the term suhsequent to that in which
he was arraigned, could not operate as a forfeiture of
his hail. The Atlonicy-General v. Beaidieii, 3 L. C. J.
17, S. C. 1858.
586. — The court will not hail a prisoner accused of shooting
with intent to murder, it the evidence he positive and
strong against the prisoner. J'lr parte Cliecvers, judg-
ment, June, 1880. Kamsay, Ap. C. 180.
587. -—The court refused to discharge a prisoner on a luthcdn
cnr])iis, charged with having murdered his wife in Ire-
land, communication having heen made hy the provin-
cial to the home government on the suhject, and no
answer received and the prisoner having heen in cus-
201
CUIMINM, DKIKHT.
ill
tofly IfSH tliiin 11 year ; lui'l Imil in siuOi a caso will not
1)6 allowed until a your from the time of the first
inipriKouMiont, nltlioii<^li no prociu'din^H liavo beon
taken by tlio crown. Jic.r v. Fitzijenthl, '^ (). S. HOO.
688.— On an application by priHonca'H in custody on a {'liar*?o
of murder, under a coroner's warrant, to be admitted
to bail, it is pro[)er to consider tlie probability of tbeir
forftdtiiig tbeir bail if tliey know tbemselves to bo
p;uilty. Wbere in sucli case tliere is sucb ?• pi'esump-
tion of tbo ^uilt of tbe prisoners as to warrant a ^^'rand
jury in liitding a true bill, tliey sbould not be bailed.
Tbo fact of one assi/e liavin^ passed over since tbe
committal of tbe prisoners witbout an indictment
bavin^ been preferrcnl, is in itself no {ground for bad.
Tbe ap[)lication is one of discretion and not (.!' rigbt,
tbe prisoners not liaviuf; brouj^bt tbemselves witbin iU
Car. 11. c. 2, s. 7, by applying on tbe first day of the
assize to be brougbt to trial. Ii('(fina\. Mnlladij at <il.,
4 P. R. ;U4.
68!). — Application was made on a iietition for JkiJu'os rnrpiia
to admit to bail a pris()n(u* cbar<»ed witb tbe murder of
bis wife's motber, tbe prisoner tiling affidavits of bis
innocence. On tbe otlier band sOM)e forty witnesses
bad been examined at tbe coroner's inquest, and tbe
evidence against bim was very strong. After argu-
ment, and tbe most careful deliberation on tiie part of
tbe judge Ixdbre wbom tbe application was nuide, bail
was refused. Corrircdtt. r.r purU' G L. C. U. 249, Q. B.
1850.
590. — Wbere tbe grand jury liave found a true bill for
murder, bail will generally be refused. In tbis case
tbere was evidence, if believed, sutticient to warrant a
conviction, and only one assize bad elapsed witbout a
t! '.
JtAlL.
205
iiial. An appliciitioii to admit to bail was rofiiHod,
and lliu prisoiiciH U'lt to tln'ir rcnii'dy uiidtT tlut Ilaix'aa
(,'or|)iis Act. llumarks as to tlu; considcrationH wliich
should j^ovoru tli<! exercise of diKi-ri'tioii in ;,'iiinlin}:; or
refusing bail. l!i(iiii<i v. Kirlcr cf nL,l V. II. 117.
591. — On u trial for murder the jury ditVered in opinion and
^ver(! dis<'liar;^e(|. Ai)i)Ii('ation was tli(!ti made by
jirisoner's counsel for iierniission to jj;ive bail for i»is
a|)|)earan(!e to take another trial, A writ of iinhfus
covpim was allowed and argued at great len}:;th. On
th(^ last day of the term the application was granted,
and accused adnjitted to bail, himself in IMOO and
his sureties in .l"250 each. Bukvr exjxtrtc 8 li. C. 46,
g. \i. 1H72.
692. — A prisoner charged with murder may in some cases
hv admitted to bail ; and on such an apjjlication the
court may look into the information, and if it lind
good ground for a charge of felony, may remedy a
defect in a commitment, by charging a felony in it.
1 ex V. IIiii;iiits, 4 0. S. 83.
593. —Where the prisoners were convicted of felony at the
sessions, and a case reserved for the Queen's liench,
which had not been argued, the judge in chnmbers
refused to bail except with the consent of the Attorney-
General. lie(jinii V. /SV/zt', 2 C. P. 138.
594. — The guilt or innocence of a prisoner is not the ques-
tion to decide on ai)plication for bail on a criminal
charge. The seriousness of the charge, the nature of
the punishment and evidence, and the probability of
the prisoner appearing to tnke his trial, are the im-
portant questions to be considered,
Held, where it was shewn that the prisoner attempt-
i III
206
CRIMINAL DIGEST.
,^^
..m,.'
ed to bribo tlu; coiintal'lo to allow liim to escape, that
the ))robal)ility of his appearing to take liis trial was
too slij^lit for the judge to order bail. licfiina v. Byrues,
8 L. J. 70.
51)5.— IJail was refused, altboii<^h it wns some luontbs before
a criminal court competent to try the case would
sit. Ih.
r)\)().-IId(l, (before the passing of 1(1 Vict. c. 179), that
magistrates were not liable for refusing to admit to
bail on a charge of misdemeanor in the absence of any
proof of malice. (Jonroi/ v. McKenncy, 11 (}. 13. 13!).
See McKinhii v. Miinsic, 15 C. V. 230.
597.— On h'thean corpus, that, under the circumstances of
the case, the prisoners were entitled to bail, and would
be admitted to bail were; it not for the order of the
court already given (No. v308 post) which, und r 21 ''leo.
III. chapter 1, section 3, prevents any other jtulgefrom
interfering with tbe judgment thus pronounced, and
that such an order or judgnumt was a legal bar to the
granting of bail by another judge to persons entitled
to it, without regard to the legality or illegality of such
order. JHohhiiiii, et al. ex p/trtc 10 L. C. J. 30, and 1
L. C. L. J. 88.
598 — But Ji.cid, subse(|uently, on a second petition for
JidbettH corpus, that such an order was no bar to the
granting of bail by any compettmt court or judge
because, under C. S. C. c. 102, s. 57, the courts are
bound to grant bail in cases of misdemeanor. Ih. 10
L. C. J. 40 and 135, Q. B. 1805.
599. — A prisoner committed for trial on an accusation of
arson may be admitted to bail. Kx parte Onasakenrat,
21 L. C. J. 219, 1877.
BAIL.
207
(500. — Tli(! prisoner boinjij confined in gaol upon a charge
of arson, in setting fire to a dwelling-liouse wliile
persons were inside, presented a petition for the benefit
of th(i writ of lidhcas rorpuH, and to h(! admitted to bail,
aHeging tliat he had api)lied for his trial l)ut liad been
refused at the last session of the (Jourt of (Queen's
Beneli, and tliat there was not sullicient evidence to
warrant his detention,
Held, that, although a true bill had been found
against him by the grand jm-y, he might be admitted
to bail, iiuismuch as the de[)()sitions against him were
found to create w. very slight su])position of his guilt.
MiKjnin' ev parte, 7 L. C. li. 57, S. C. 1H57.
GOl. — When the circumstances of tlie case raised a pre-
sumption that the accused would appear to take his
trial, and as the next term of court war distant, tin;
prisoner accused of bigamy, was admitted to bail. Kx
parte. Kmnnd, 11 (). L. \{. -248, Que.
G02. — A prisoner in custody for grand larceny may be
admitted to bail. Rex v. Jones, 4 0. S. IH.
G08. — Where a person charged with felony had been
admitted to bail upon an ordei- of a judge, and an
application was subsequently made to rescind such
order, and to re-commit tin; i)ris()ner, on the grounds
that he had not l)een committed for trial at the time
such order was granted, and tliat the; bail put in was
iictitious,
IIel([, that a .judg(! had power to make the ordt r
asked for ; but the order in this case was conditional
ui)on the failure of the prisoner to find new surc'ties
within a specitied time, lieijina v. Mason, 5 P. K. 125.
J''! i
208
CRIMINAL DIGEST.
604. — A true bill was found against the prisoner at Quebec.
The trial was deferred until the following term, and it
was agreed that the prisoner should he bailed. Pie
was allowed to go in search of his bail, but left the
country ; subsefjuently he returned, and was arrested.
A subsequent apj)licati()n by him to be bailed was
refused. E;v parte Deenan, 3 L. N. 195, 1880.
COS. — Upon a charge of assault, or aggravated assault,
there being doubts as to the law, the facts being dis-
puted, the prisoner was admitted to bail pending
application for his discharge, which was to be renewed
in term. In re McKinnon, 2 L. J., N. S. 321, Out.
606. — Although a statute may require the presence of three
justices to convict of an offence, yet one has power to
bail the offender ; and a second arrest for the same
charge, by the same complainant, before the time
appointed for the hearing, is illegal. Kiiu/ v. Oir, 5
0. S. 724.
607. — The prisoner, who was charged, with others, with the
crime of larceny, applied to be bailed, on the ground
that, at a trial held before the court of quarter sessions,
the jury had failed to agree, and had been discharged
on account of the absence of an important witness for
the prosecution. It was
Held, that the court could not decide whether the
discharge of the jury was legal or not, and as the
absent witness had evidently been tampered with, the
application was refused. Jones ex ixirte, 3 L. N. 206,
1880.
608. — Persons accused of misdemeanor are not entitled to
be liberated on bail if, in the opinion of the judge
presiding, the evidence adduced be positive against
i^lRf'iC
HAUEAS CORPUS.
209
them, tlioup;b two juries have been discharp;e(i because
they could not agree upon a verdict, and in such case
the court will order that the prisoners stand committed
to gaol, without bail or mainprise, to be tried again
at the next term, and not to be discharged without
further orders from the court, llcgina v. Blossom,
vtnl., lOL. C. J. 29, Q. B. 18G7,
<)09. — A female prisoner, charged with perjury, was ad-
mitted to Itail under the following order: "That the
prisoner, A. Johnson, do give hail to Our Lady the
Queen in the sum of 1*50, and two sureties, each in the
stun of 1*25, the said moneys to be levied of their
goods and chattels, lands and tenements, to the use of
our said Lady the Queen, her heirs and successors, if
the said A. Jolinson shall fail to appear to answer a
charge of wilful and corrupt perjury, commitied on
the trial of one Thomas Welsh iuv rohhei'v, and that
in default of such bail, she bo committed to th(^
common jail of this district io he dealt with according
to law." lU'ifxna v. Johnson, 8 L. C J. 285, Q. B. 1857.
II
XXIII.- HABEAS CORPUS.
010. —Section 51 of tha Supreme and Exchequer Court
Act does not interfere with the inherent riglit which
the Sui)reme Court of Canada in common with every
Superior Court has incident to its jurisdiction, to
(inquire; into and judge of the regularity or abuse of
its process, and to (piash a writ of Imheas corjrus and
suhsequent proceedings thereon when in the opinion of
the com't such writ has hoen ;m providently issued by
a judge of said court. The said section does not con-
F.C.D. 11:
:!t|
1
210 ClilMINAL DIGEST.
stitute the individuiil jud^'es of the Supreme Court
separate and independent courts, nor confer on the
judges a jurisdiction outside of and independent of the
court, and ohedience to a writ issned under said sec-
tion cannot be enforced by the jud«^e but by the court,
which alone can issue an attaclirnent for contemjjt in
not obeying its process. Fouknieu and Henry, JJ.,
dissenting.
Per Strong, J. — The words of section 51 expressly
giving an appeal where the writ of lidbcds corpua lias
been refused or the prisoner remanded, must be attri-
buted to the excessive caution of the legislature to
provide all due protection to the subject in the matter
of personal liberty, and not to aii intention to deprive
the court of the right to entertain appeals from and
revise and rescind orders made under the section.
The right to issue a writ of Itdhcns corpus being
limited by section 51 to " an enquiry into the cause of
commitment in any criminal case under any Act of
the ParUament of Canada " such writ cannot be issued
in a case of murder, which is a case at common law.
FouRNiER and IIknuy, JJ., dissenting.
Per FouRNiKR and Henry, JJ., dissenting, the restric-
tion so imposed by the section is merely intended to
exclude any en(piiry into the cause of commitment for
the infraction of some provincial law ; and the words
" in any criminal case" were inserted to exclude the
luiheds corjiiDi in civil matters ; it is sutlicient to give
jurisdiction if the commitment be in virtue of an Act
of the Parliament of Canada.
Query : Is section 51 ultra rires /
Senihle, that where a judge in a province has the right
to issue a writ of Jidheds corpus, returnable in term as
HAliEAS CORPUS.
211
•well as in vacation, a ju(lp;e of tlie Siii)renie Court
niij^ht make the writ lie authorizes retuniahle in said
court in term as well as immediately, Fouunieu and
Hkniiy, JJ., dissenting.
An api)lication to the court to quash a writ of
Jidhcds i'orjnis as improvidently issued may be enter-
tained in the absence of the prisoner. Henry, J.,
dissenting.
After a conviction for a felony by a court having
general jurisdiction over the offence charged, a writ of
hi\})eus corpus is an inappropriate remedy.
If the record of a superior court prochiced or an
application for a writ of Jiaheas corpus contains the
recital of facts requisite to confer jurisdiction it is con-
clusive and cannot be contradicted by extrinsic evi-
dence. PIenry, J., dissenting.
A return by the sheriff to the writ setting out such
conviction and sentence and the affirmation thereof by
the court of error is a good and sufficient return. If
actually written by him or under his direction, the
return need not be signed by the sheriff. Henry, J.,
dissenting.
The Supreme Court of British Columbia is clothed
with all the powers and jurisdiction, civil and criminal,
necessary or essential to the full and perfect adminis-
tration of justice, civil or criminal, in the ^irovince ;
powers as full and ample as those known to the com-
mon law and possessed by the superior courts in
England.
The various statutes of British Columbia for the
holding of courts of oyer and terminer and general gaol
delivery, render unnecessary a commission to the pre-
fcidiii'^ judge.
m
212
CRIMINAL DIGEST.
Per Strong, J., the power of issuiiif; a commission,
if necessary, belonf:fed to the Lieutenant-Governor of
the province, Hknry, J., contra.
An order made pursuant to 82-33 Vict. c. 29, s. 11,
(Ca.) directing a chanf^e of venue wouhl be sullieient
although containing no reference to any provision for
expenses, when the indictment has been pleaded to and
the trial proceeded with without objection, and, even in
a court of error, there could be no valid objection to a
conviction founded on such order.
Even if the writ of habeas corpus herein had been
rightly issued, the prisoner, on the materials before the
judge, was not entitled to his discharge, but should
have been remanded. Ex parte ^■iproide, 12 S. C. llej).
140.
611. — x\pplication was made to the Cliief Justice of the
Supreme Court in Chambers on behalf of a person
arrested on a warrant issued upon a conviction by a
magistrate for a writ of Jmbeas corpus and for a certiorari
to bring up the proceedings before the magistrate, the
application being based on the lack of evidence to
support the conviction. The ai)[)lication was dis-
missed. On appeal to the full court.
Held, Henry, J., dissenting, that the conviction
being regular, made by a court in the unquestionable
exercise of its authority and acting within its jurisdic-
tion, the only objection being that the magistrate erred
on the facts and that the evidence did not justify his
conclusion as to the guilt of the prisoner, the Supreme
Court could not go behind the conviction and inquire
into the merits of the case by means of a writ of liabea^
corpus, and thus constitute itself a court of appeal from
the magistrate's decision.
The only appellate [lower conferred on the court in
HABEAS CORPUS.
213
criminal cases is by the 49th section of the Supreme
and Exchequer Court Act, and it could not have been
the intention of the legislature, while limiting appeals
in criminal cases of the highest importance, to impose
on the court the duty of revisal in matters of fact of all
the summary convictions before police or other magis-
trates throughout the Dominion.
Section 34 of the Supreme Court Amendment Act,
187(5, does not in any case authorize the issue of a writ
of certiorari to accompany a writ of liubeas corpus
granted by a judge of the Supreme Court in Chambers ;
and as the proceedings before the court on habeas
corpus arising out of a criminal charge are only by way
of appeal from the decision of such judge in chambers,
the section does not authorize the court to issue a
writ of certiorari in such proceedings ; to do so would
be to assume appellate jurisdiction over the inferior
court.
Semhle, per IIitchie, C.J., that chapter 70 of the
lievised Statutes of Ontario relating to liaheas corpus
does not apply to the Supreme Court of Canada. Ex
parte Trepauier, 12 S. C. li. 111.
612. — The prisoners were committed for trial on a charge
of gambling on a railway train. On the case coming
before the county judge for trial, an indictment was
jjieferred, under 42 Vict., c. 41, s. S (D), for obtaining
money by false pretences. The prisoners' counsel
objected to the prisoners being tried on a ditTerent
charge from that on which they had been committed.
The objection was overruled, and the charge read over
to the prisoners, and, on its being explained that they
could be tried forthwith, or remain in custody until
the next sittings of Oyer and Terminer, etc., they
pleaded not guilty, and said they were ready for trial.
ifffi:
i
214
ClUMINAIi l)I(}i:ST.
Tlie case tlion proceeded, and the prisoners were con-
victed ; no (jiiestiou l)ein<^ raised as to their havinj];
been tried without tiieir consent, ahlioiij^h their counsel
took other ohjcctions to the proceedin<j;s. A writ of
hdhi'ds corpus \\xi\'u\^ been issued and the prisoners'
disoiuir<:;e moved for, on the ground of the ahscnice of
buch consent,
Held, that the motion must be refused.
Per Wilson, C.J. — It was unnecessary to decide
whether the prisoners' remedy was by knheas corpus
or writ of error, because, on the facts, they were not
entitled to either remedy.
Per OsLKR, J. — The prisoners having been im-
prisoned under the conviction of a court of record, an
objection of error in the proceedings must be by writ
of error ; the writ of luiheo.s corpus was therefore
improvidently issued, and shouhl be quaslied. Retjina
V. Goodman and Wilson, 2 Ont. Hep. 408 ; 3 Out. Hep.
18, Q. B.
613. — The judgment of a superior court of hiw will not be
interfert.'d with on the return to a writ of Jutheas corpus,
and so a writ of hubeas corpus in order to discharge,
prisoner from custody, on the ground that the prisoner
was sentenced to a punishment not authorized bylaw,
will be refused by tlif^ court of Queen's Bench. Ex
parte McGratli. Judgment September, 1875. — Bam-
say, A. C, 188.
C14. — A district magistrate, acting under the Sj)eedy Trial
Act, acts as a court of record for all the purposes of
the trial, and the proceedings connected therewiih or
relating thereto, although he does not retain tlie
record, but files it in the court of general sessions, are
really before this court in the rural districts. Being a
iiAUKAS couprs.
215
court of record lii:^ judfjineiit cannot be enciuirt'd ol" on
halx'tis corpiia. It may on writ of error, which the Court
of Queen's Jirneh has, by statute, authority to <i;raut,
as also it has, as an incident of its general powers,
the rijj;ht to issue a rcrdontri to brinj; up the record.
Kx parte 0' Kiina. — Ramsay, A.C., 188.
G15. — 20-30 Vict. c. 45, had in view and reoo,c;nizes the
right of every man committed on a criminal charge to
have the oi)ini()n of the superior courts upon the cause
of his connnitmeut by an inferior jurischction.
lu'll'ma V. Mosicr, 4 P. R. G4.
61G. — A writ of hahodsi corpus sliould not issue where the
accused is in custo ly pending; a prelhiiinary investi-
gation before a maj^istrate during a remand to enable
the prosecution to supply evidence in support of the
charge, Rc(jina v. Cor, 8 Can. Law Times, 350 ; 1(5
0. R. 228.
C17. — "When a writ of Jidhfas corpus has been refused by
the Court of Queen's Bench in term because of no valid
grounds being set up by the petitioner for his dis-
cbarge, he is not [)recluded from presenting a new
petition. A'.r parte Williams, M. judgment, 18 March,
1875 —Ramsay, A.C., 187.
618. — A writ of IiaJieas corpw^ will be refused if applied for
so late in the term that it could not be disposed of in
the term. Ex parte FranJcUn. — Ramsay, A.C., 187.
619. — An aitidavit in support of an application for a writ
of liaheas corpus stating that in so far as deponent
knows the facts they are true, is \i 'ueless. And if on
the return to a writ of haltens corpus it appears that
the party having the custody of the person for whom
the petition was presented is the person to whom the
i n
' ilii
216
CRIMINAL niOEST.
writ is adtlresscd, the return will be considered insufTi-
cient. Ex parte Mc( artin/. — liamHay, A.C., 187, 311).
620. — On a petition for habeas corpus complaining cf an
illegal commitment, tlierc should be a copy of the
commitment, or an af'tidavit that it was api)lit;d for and
refused. Kx parte Pollock, M. Judgment, November,
1881.— llamsay, A.C., 319.
621. — Prisoner was arrested in Quebec on the warrant of
M. C. in his quality of justice of the peace for the pro-
vince, charging certain persons, among whom the
name of the prisoner was not included, with bringing
and having in their possession in Canada, money
which had been feloniously stolen and obtained by
thtm in New York. On a petition for liaicas corpus,
the prisoner swore that he was first arrested on a
steamship, in the harbor of Quebec, and asked to look
at the warrant. On doing so he found his name was
not included in it and informed the constables. On
looking over his baggage and papers they became con-
vinced that that was the ease, and liberated him
with an apology. Next morning they returned and on
the strength ot a telegram which they produced, again
arrested him on the same warrant, 'ihe petition for
habeas corpus on this ground was granted, but as soon
as the prisoner was liberated he was again arrested on
a new warrant issued in Montreal and endorsed by the
judge of sessions in Quebec. On a second petition for
habeas corpus,
Held, that ir.der the Consolidated Statute of Lower
Canada, c. 95, s. 11. (1) that after having been
liberated under the Act of habeas corpus, a pri^onei
could not be arrested again on anew warrant, charging
him with the same offence. Kno ex parte 10 Q. L. lu
165.
K. .'
CHIMINAL DIGEST.
217
XXIV. EXTRADITION. (R. S. c. 142)
6'22. — Held, that the Ashburton Treaty contains the whole
of the law of surrender as between Canada and the
United States ; the 3 Will IV. c. 6, bein<» superseded by
it, and the Imperial Act (5-7 Vict. c. 7(), and Provincial
Statute 12 Vict. c. 19 ; thouf;!! in relation to other
foreif;n powers, with whom no treaty or conventional
arrangement existed, the 3 Will. IV. c. 6 is still in
force. Rcnina v. Tuhbee, 1 P. R. 1)8, Ont.
623. — QiKerc, how far the United States, Lower Canada, or
England, would respect the 3 Will. IV. c. fi, if a fugi-
tive surrendered by Upper Canada to a foreign power
were taken through those countries. Jh.
624. — Though the surrender must be by the executive gov-
ernment, yet a party committed under a magistrate's
warrant may apply for a hxhcaa c<)rj)iis, and the court
or judge may determine whether the case be within
the treaty. lb.
625. — The 40 Vict. c. 25, is not in force, but the law and
practice relating to the extradition of fugitive criminals
between the United States and Canada, is to be found
in the Ashburton Treaty, Art. X., the 31 Vict. c. 1)4 ;
33 Vict. c. 25; and the Imp. Acts, 33-34 Vict. c. 52,
and3t3-37 Vict. c. (iO.
Re Williams, 7 P. R. 275, No. G26, post, approved of.
i
218
CIUMINAI, DKJKHT.
i 'i:.
■ i S
!»-
On luj appliciition for the tlisL-lmr^f! of ii prisoner
coinniiltcd lor cxtrjKlitioii lunlcr iin order of the coiiiily
juil^e ot Jvent, on Ji cliari^e ol' nmrder,
/*(•/■ Wii.HON, (1..T., Unit under (ho ahove Acts, nnd
32-81} \'i(!t. c. HO, ss, 1, T), a. ei'rtilied copy of an indict-
ment for niurder found by tho j^'rand jury of Kriu
County, State of New York, United Stat(!H, was of itHelf
Hullicient evidence to justify tho coniuiittal ol such
prisoner for extradition.
Per OsLKU, J., that sudi indictment was not evidence
for any purpose.
Per Wi'iSON, C1..T., and Oslku, J., that tho other
evidence taken hefore the county judj^e, documentary
and lira roci', was insulHcient, as it showed at most
tliat th(.' prisoner was an accessory after the fact,
which did not come within the treaty.
PerGw/v, J., that if the case liad turned on the
indictuKMit alone, he would have hesitated to accept it
as conclusive aj:;ainst the accused ; hut that the other
evidence, together with the indictment, was sulHcient
to warrant his extradition.
The application was therefore refused. Jicii'ma v.
hnnvne/dl C. P.; 17 L. J. N. ^
C2G. — The only cxistiiif::; law as ' eition of criminals
between the United Stat( ^-anada, is the Imperial
Act of 1870 (;33-JU Vici. ..25(1)). The Canadian
Extradition Act of 1877 (40 Vict. c. 25 (D), does not
apply to criminals from the United States, as the
operation of the Imperial Act, 1870, has not " ceased
or been suspended within Canada." Proceedinf^s
taken for the extradition of the prisoner under 40 Vict.
c. 25 (])), and a warrant committing him under that
Act, were therefore set aside, and the prisoner dis-
charged. In re WUl'uims, 7 P. 11. 275, Ont.
ji\:.' '
m
EXTRADITION.
2V.)
()27. — On 11 (lomnnd for InihrKH cdrpnx hy a |un'.sofi coimnittcd
for t'xtnulition on ii i-litirj^n of piissinj^ (.'oiintcrfiat
inoiuw,
Ifi'hl, tliiit siiu'c tile Iiiipci'iiil onlcr in council of
28tli l)t!C(!nilH'r, lHM-2. jjiihlislicd in tlio (\iit(t<l'i (hitcttc,
of Hrd Miirdi, 1HHI{, tlic> 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 <d., 11) C. P. 9, Out.
OBI. — An alleged irregularity in the proceedings for his
220 CRIMINAL DIGEST.
arrest cannot, on an application for habeas corpus,
avail a prisoner eominitterl for extradition. It is
sufficient that, being under arrest before proper autho-
rity, a case has been made out against him to justify
his commitment. Pltehin ex parte, 6 L. N. 'iBl.
632. — A magistrate, acting under the treaty pnd statute,
after issue of a writ of Jiaheas corpus, buC before its
return, may deliver to the gaoler a second or amended
warrant, which, if returned in obedience to the writ,
must be looked at by the court or judge before whom
the prisoner is brought. In re Asher Warner, 1 L. J.
N. S. 16.
633. — In extradition cases the forms and technicalities with
which the statute surrounds the production of affi-
davit evidence must be strictly complied with ; and
therefore,
Held, that depositions taken in the United States
cannot be read unless certified under the hand of the
magistrate who issued the original warrant as being
copies of the depositions upon which such warrant
issued, although attested by the party producing them
to be such true copies ; but,
Seinbli', the prisoner might be remanded to enable
properly certified coi)ies to be produced. In re Lewis,
P. 11. 230.
634. — When a prisoner was brought before the court upon
a writ ot habeas corpus under one statute, the warrant
of commitment upon which he was detained appearing
on its face to be defective, it was held that the court
had no autbe/iity to remand him, such power being
possessed by the court at common law only, and the
prisoner not being charged with any offence for which
he could be tried in this province. In re Anderson,
11 C. ?. i).
m
EXTRADITION.
221
635. — It is not necessary under the Extradition Treaty and
Act, 31 Vict. c. 94 (])), that an orijzinal warrant should
have hecn granted in the United States for the appre-
hension in this country of the person accused, to enahle
proceedings to he effictually taken against him in this
province for an offence within tlie treaty. In re
Caldiicll, 6 P. li. 217.
G8(). — \Yhere the crime comes within the treaty, it is
immaterial wliether it is, according to the hiws of the
United States, only a misdemeanor or a felony. //*
re Caldwell, 5 P. R. 217.
637. — AVhere a prisoner in custody under tlie Ashhurton
Treaty ohtained a htiheas roi-jnis and certiorari for his
disehargi.-!, it was held that the argument as to the
regularity or irregularity of the initiatory proceedings,
such as information, warrsmt, etc., was a matter of no
consecpience, (he material question heing whether,
being in custody, there was a sufficient case made out
to justify the commitment for the crime charged.
It was also
Held, that certificU copies of depositions sworn in
tlie United States alter proceedings had been initiated
in Canada, and after the arrest in Canada, were
admissible evidence befor(> 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 <lepositions is not q'.ialilied by section 2 of 31
Vict c. 94 (])) ; and that the evidence disclosed therein
was sufficient to warrant the extradition of the prisoner
as an accessory before the fact,
Held, also that the foreign indictment was not
admissible as evidence against the accused.
It was shown that the only warrant issued in this
case was the wan-ant issued by the district attorney
(after the grand jury had found a true l)ill Ur: murder)
which did not profess to be issued upon the depositions,
nor was it proved upon what evidence the bill was
found.
Seiiible, per Patterson, J. A., that the right given by
section 14 above referred to, to use copies of depo-
sitions is conthied by the effect of section 2 of ;3l Vict.
c. 94, to those c ises in which a warrant has been
issued in the United States upon the depositions.
Rv(jina v. Broinie, G Ap. 11. 880.
•048. — The adjudication of the committing magistrate as to
the sufficiency of the evidence for committal may be by
way of recital on the warrant of commitment. In re
Barley, 1 L. J. N. S. 34.
i
280
CRIMINAL DIOKST.
ur
ifi
640.— If the evidence present several views, on any one of
wliicli there may he a conviction, if adopted hy the jury,
the court will direct extradition, litujina v. Gould, 20
C. P. 154; li. S. c. 142,8. 11.
650. — Where the facts in evidence, though sufficient to
warrant extradition if deposed to hy witnesses who
could really testify to the occurrence, were sworn to
from information only, the prisoner was discharged.
In re Parke); 9 P. li. 332.
651. — QiKere, can a committing magistrate detain a prisoner
upon evidence amounting only to a ground of suspicion,
for the purpose of other evidence heing imported into
the case so as to hring it within the treaty. In re
Kmnoit, 1 C. L. Chamh. 253.
652. — Where the accused, on his examination hefore the
magistrate, admitted the acts charged, which prima
facie amounted to robhery (one of tiie crimes enume-
rated in the treaty), and alleged, by way of defence,
matter of excuse which was of an equivocal character,
IlvU, that the magistrate could not try the case,
but was bound to commit the accused for tiial before
tiie tribunals of the foreign country. In re Hurley,
1 L. J. N. S. 34.
653. — If the magistrate, sitting on a similir charge, if
committed in Canada, would commit for trial, he is
equally bound to commit for trial in the foreign country
when the offence, if any, has been committed there.
Ih., and Ex parte Landrande, 10 L. C. J. 280.
654.— The magistrate cannot weigh conflicting evidence to
try whether the prisoner is guilty of the crime charged.
Re Barley, 1 L. J. N. S. 20, Ont.
I
EXTIIADITION,
231
655.- Under 31 Vict c. 94 (D), the last Extradition Act,
all that the comnjitiins magistrate or the court or a
jud<^e has to do is to determine whether the evidenco
of criminality woiili . according to the laws of Ontario,
justify tlie apprehension and committal for trial of the
accused if the crime had heen committed therein.
Ex parte Reno, et <il, 4 P. R. 281, Ont. ; U. S. c. 142,
8. 11.
Such decision, if adverse to the prisoner, does
not conclude him ; as the question of extradition or
discharge exclusively rests with the Governor-Gene-
ral, lb.
Evidence offered to a magistrate by a prisoner on
an examination of this kind, hy way of answer to a
btrong prinid fdci". case, may perhaps properly be
taken, but would not justify the magistrate in dis-
charging the prisoner.
And, qiKere, whether it was not the intention of 31
Vict. c. 1)4, to transfer to the Governor exclusively the
consideration of all the evidence, that he might deter-
mine whether the prisoner should be delivered up. lb.
Under the circumstances of this case, it was held
that there was surhcient /)/'?/;/rfy;;rje evidence of the
criminality of the prisoners to warrant a refusal to
discharge them, and that there was evidence to go to
a jury to lead to the conclusion that the intent of the
prisoners was at the time of shooting to commit a
murder. lb.
666. — It is in the discretion of the magistrate investigating
into a charge under the treaty a'gainst a per< ">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<ixna
V. Banter, 30 C. P. 19 ; Recjimi v. McDonald, 30 C P.
21, note, Ont.
638. — A., being a slave in the State of Missouri, belonging
to one M., had left his owner's house with the inten-
tion of escaping. Being about thirty miles from his
home, he met with I)., a planter, working in the field
with his negroes, who told A. that as he had not a
pass he could not allow him to proceed, but that he
must remain until after dinner, when he, 1)., would go
with him to the adjoining nlantation, where A. had
told him that he was going. As they were walking
towardt, D.'s house, A. ran off, and D. ordered his
slaves, four in number, to take him. During the
pursuit D., who had only a small stick in his hand,
met A., and was about to take hold of him, when A.
stabbed him with a knife, and as D. turned and fell he
EXTRADITION.
235
stabbed him again. D. soon afterwards died of his
wounds. By the law of Missouri any persui may
apprehend a negro susjiected of being a runaway slave,
and take him before a justice of the peace ; any slave
found more than twenty miles from his home is
declared a runaway, and a reward is given to whoever
shall apprehend and return him to his master. A.
having made his escape to this province was arrested
-liere upon a cbarge of murder, and the justice before
wliom he was brought having committed him, he was
brought up in this court on a Italteas (■or})iis, and the
evidence returned under a certiordvi. It was contended
that as A. acted only in self-defence of his liberty,
there was no evidence upon which to found a charge
of murder if the alleged offence had been committed
here, and that he could not be demanded by the
treaty,
Held, that, under the Ashburton Treaty, and our
statute for giving effect to it, C. S. C. c. 89, the
prisoner was liable to be surrendered.
McLean, J., dissenting, and holding that the infor-
mation, warrant of commitment, and eviilence (to
whicb no objection was taken on argument) were insuf-
ficient ; that if the charge had been clearly made out,
tbe case was not witliin the treaty ; and that the
jtrisoner, therefore, was entitled to his discliar^;e. In
re Anderson, 20 Q. B. 124. 8ee 11 C. P. 9.
6G9. — A warrant charging that the prisoners "did feloni-
ously shoot at, etc., with intent, etc., ' kill and
murder," sufficiently charge.l an "assault with intent
to commit murder," the words used in the Ashburton
Treaty and Statute. licjiind v. Ilciio, et al., 4 P. li.
281.
236
CRIMINAL DIGEST.
670. — A warrant of comniitraent issued by a raa,G;istrate
under the Ashbnrton Treaty and our statute, which
URed the words " did wilfully, maliciously, and
feloniously stab and kill," and omitted the words
" murder" and " with malice al'orethou>^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„<lant was found guilty on tl.e first „„d third
counts of an .ndict.nent, the fir,st count of J eh
charge, hnn w.th uttering a forged che„ue, and the
money. Ihe evidence was that he forged the name of
tl.e payee oa the hack of t.,e ehecue a^d oh .i ed he
lu-oceeds, wliich he appropriated,
//,./,/, tlie elieque when endorsed hccame an order
fo. t e payment of money to any one presentin" ft
McDonald, C..J., and WEATHEaoE, J., dissentin.
Ihe hrst count was not sustained by proof of° the
forgery of tlie endorsement.
A question having heen raised at the trial hv de
nnrrer as to the power of the court to try the defendant"
4:dit:d™:: tvr """ '°" ™'"* •- ^-utn
/W.i to be too late to raise the question by case
..served for the full court. He.ina v. Cu,J,Z
s- ^d. But see No. 167, aK(e.
4
II
INDEX,
TlIK KEFEnENCES AUE TO THE MaHOINAL NuMBEKS.
Abduction, 22-3-4-5
Abortion, 20
Abuse of criminal procedure, 252
Accessory, l;}r,, IG5, 350
Accomplice, 11, (i5. See Corroboration
Admissions. See Confessions
Advocate, responsibility of, 12
Affidavits, 400. See Depositions
Agent, larceny by, 98, 101, 104
Allocutus, 472
Amendment of indictment, 34. 213. 239, 276, 330, 338. 31S, 352 363 4
reserved case, 520 ' ''"''■*■
American authors, 4
Animm farandi, 203
Appeal, 478-9
Arrest, right to, 56
Arrest of judgment, 324, 334
Arson, 27-34
Assault, 35-56, 289
conviction of, a bar to civil proceedings, 21. 54-5
indecent, 57-8-9
Attempt to commit a crime, 60-65, 294
Autrefois acquit, 316, 402-3
convict, 60
Attorney, power of, to be in writing, 97
240
INDEX.
B
Bail, flH'i-fiO'.t
Haileo, hirccMy by, lOf), 107, 2.10, 'il.T
Bankinf{ Act, crimes umler. (JG-7
Hank-note, 17<>, 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, :{:<o, ;{;{s, -mij, ;{r,2, ;j(i:5-4
may bo Hent back to ^rand jury, :5'27
motion to (juaHli, ii'.if)
objc'ctioiiH \vli(!M to 1^0 riiado, .'5'2f, ;i;ilJ I, .'557
(lefectH ciirod by verdict, '.VM, 'Mil
procedure upon quashint^, ;il'2
sif^niuf,', IMl-f)-*)
l)roof of, ;M()
copies of, M'.)-r,0, S.W-l
ailc{,'ation of intent, 'M)l, M, 1'2!), 108
ovvnevHliip, Ur,, l(),i, 1'2',», '21 '2, 'Ar,:\
joinder oi countn, '238, '27'J, '208, ;558-'.)-oO-l
for abduction, 23
arson, .'»0
bigamy, 70, 73
<!oinint,', HO
embezzlement, 100, ;5;U>
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!<liiii or nolo in not, I'M-H
Molioii to (juasli, Xi'.i\i'i, ^^r,^
Munlor, 2:H)-2M
Mutiny, 210
Navit^ation, obHtrnctint,', 24'2
Noutrality lavvH, '241
New trial, KM, '2:i2, :5(;h, iHO-GO:}
Note. Srt: I'romiHSory Noto
bank. Sec "
NuiHanco, 242, 250
N
()
OflioeH, biiyin-^ or Hollin-^, H4
Ordor for i)ayniont of luonc^y, 1<'.7, 172-:{-4
()tli(!r oi'fcnccH, jjrovin-,', T)'.), 142, U\r>, 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.