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Les images suivantes ont 6X6 reproduites avec Is plus grand soin, compte tenu de la condition et de la nettetd de I'exemplaire i\\m6, et en conformity avec les conditions du contrat de filmage. Original copies in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or illustrated impres- sion, or the back cover when appropriate. All other original ^';opies are filmed beginning on the first page with a printed or illustrated impres- ion, and ending on the een added containing a programme of the ordinary proceedii^gs at an inquest in consecutive order, with many of the forms required as the inquest proceeds, printed i^ their proper places, and the others referred to by their numbers in the appendix. With the chapter open before him while holding an inquest, no Coroner need ever be at a loss to know what next to do, and it is believed this programme will be found a convenient and valuable addition to the book. The general arrangement, and much of the text, as in the former editions is taken from the well known English work on the same subject by the late Chief Justice Jervis ; and the medico-legal portions have been largely taken verhatim et literatim from the authors referred to in the no .es. When using th" . .Jltion outside of Ontario, the reader must refer to the end of each section to see if there are VI PREFACE TO THE THIRD EDITION. any .statutory alterations of the law applicable to the particular place he is interested in; and he must also bear in mind that any statements of the law which are supported by the citation oi provincial statutes, are only applicable to that Province by which such statutes were passed. No general list of cases is given, but the principal cases referred to will be found in the index. I desire to express my appreciation of the valuable assistance I received in the preparation of this edition from my nephew George B. Nicol, Barrister-at law, and my son W. Alves Boys, Barrister-at-law, by their making numerous extracts for me from books in Osffoode Hall : and also from my nephew Douglas M. Stewart, student- at-law, by important help given to me in reading tne printers' proof sheets. Barrie, 1893. W. B. TABLE OF CONTENTS. PART I. THE OFFICE AND DUTIES OF CORONERS GENERALLY. CHAPTER I. or THE orrrcB and appointment op coronerh. PAQE. Sec. 1. — The Antiquity of the Office 1 2. — Qualifications and Disqualifications 2 3. — Mode of Appointment 5 CHAPTER II. THE DUTY AND AUTHORITY OF C0R0NEB8 GENERALLY. Sec. 1. — As Conservators of the Peace 10 2, — In Inquests of Death H 3. — To Inquire into the Origin of Fires 24 4. — To Return Inquisitions 29 5. — To Execute Process 33 6. — Other Duties 42 CHAPTER III. OF THE JURISDICTION OF CORONERS IN INQUESTS OF DEATH. Sec. 1. — Their General Jurisdiction 43 2.— Their Jurisdiction in Particular Cases 44 3. — Supreme Jurisdiction 45 CHAPTER IV. OF THE RIGHTS OF CORONERS. Sec 1. — General Remarks 46 2.— Their Right to Fees 46 3-— Their Exemption from Serving Offices 48 4.— Their Privilege from Arrest 48 _ 5.— As to their other Rights and Privileges 48 Viii (JOXTKXT\ CHAPTER V. OF THE LIADILITIES OF C0K0NER8. PAOE. Sec. 1. — For misconduct 50 2.— To be Removed 55 8. — For the Acts of Co-Coroners 56 PART II. THEIR OFFICE AND DUTIES IN PARTICULAR. CHAPTER I. OF OFFENDERS. Sec. 1. — Who may Commit Crimes — Infants 57 2. — Persons Non compos mentis 58 1. Dementia Natiualis 59 2. Dementia Accidentalis 59 3. Dementia Affectata 60 3. — Persons in Subjection to the Power of Others 60 4. — Ignorance 62 6.— Misfortune 62 CHAPTER XL OF PARTIES AND ACCESSORIES. Sec. 1 — Parties to the Commission of Offences 63 2. — Accessories before the Fact 66 8, — Accessories after the Fact 66 CHAPTER m. OF CHIMES WHICH COJIE UNPER THE NOTICE OF CORONERS. Sec. 1.— Of Felodese: 1. Definition 67 2. Practical Remt.rks 68 2.— Of Murder : 1. Definition 70 2. Practical Remarks 72 CONTEXTS. ix Skc. 8.— Infanticide : p^^^ 1. When is a Child born alive 91 2. The Hydrostatic Teat 95 8. Of the Uterine Age of a Child 9(j 4. Monatrositiea 9.^ 5. Legal Points 9^ C. Cautions jqq 7. J]vidonce 1Q3 4. — Manslaughter : 1. Definition 2Qg 2. Practical Remarks jq5 5-— Homicide which is not Culpable : 1. Per infortunium jOy (1) Definition jq^ (2) Practical Remarks 108 2- Se et sua defendendo 108 (1) Definition lOg (2) Practical Remarks 10<) 8. Justifiable Homicide HO (1) Definition HO (2) Practical Remarks HO CHAPTER IV. Mineral Vegetable (Savin). Animal (Cantharides). OF POISONS. Classification of Poisons. Irritants. Non-metallic .[Acids (Sulphuric). ( Metalloids (Phosphorus). -^ ^ „. fAlkalic Compounds (Potash). Metallic J Heavy Metals and ) , » i Compounds .... j (Arsenic). Sulphuric Acid . . . Nitric Acid Hydrochloric Acid. Oxalic Acid Phosphorus Alkalies Neurotics. Cerebral (Morphine). Spinal (Strychnine). Cerebro-spinal (Coniine). 122 123 123 124 125 125 X CONTENTS. PAGE. Ammonia 126 Arsenic 126 Chloride of Mercury or Corrosive Sublimate 129 Salts of Lead 130 "icpi^er 131 Antimony 132 Zinc 134 Iron 134 Tin > 134 Nitrobenzole 134 Aniline 135 Carbolic Acid 135 Savin 136 Colchicum 136 Cantharides 136 Mushrooms 137 Opium, Laudanum 138 Morphine 139 Chloroform 13i) Choral Hydrate 140 Ether 141 Prussic Acid 141 Alcohol 143 Tobacco 143 Snakes 144 Nux Vomica 145 Strychnine 146 Cicuta Maculata 147 Conium Maculatum 148 ^thusa Cynapium 148 Slum Lineare 148 Aconitum Napellus 148 Belladonna 150 Datura Stramonium 150 CHAPTER V. OF ANTID0TK8. General Remarks 151 Sulphuric Acid 161 Nitric Acid 152 Hydrochloric Acid 152 Oxalic Acid .... 162 Phosphorus 152 CONTENTS. XI PAGE. Alkalies 153 Arsenic — Arsenious Acid 153 Corrosive Sublimate 154 Lead 154 Copper 155 Antimony 165 Zinc 155 Cantharides. 155 Tin 155 Niirobenzole (Essence of Mirbane) 156 Aniline 156 Carbolic Acid 156 Prussio Acid 156 Colchicum 156 Opium 156 Morphine 157 Alcohol 157 Chloroform 157 Chloral Hydrate 157 Strychnine , 157 Aconite 158 belladonna 158 Datura Stramonium 159 Conium Maculatum 159 CHAPTER VI. OF WOUNDS AND BRUISES. Sec. 1. — Examination of Wounds 159 2.— Characters of a Wound Inflicted during Life 161 3.— Characters of a Wound Made after Death 162 4. — Practical Remarks 163 CHAPTER VII. Of the Hydrostatic Test 176 7 : CHAPTER VIII. Blood Tests j7q CHAPTER IX. ■.^,:.,::.^^^._l^^^.J:.,_J^^^^:.^..^.^ Of Deodands \ jgj Xll COyTEXTS. CHAPTER X. PAGE. Of Flight and Forfeixore 186 CHAPTER XL OF EVIDENCE. Sec. 1. — Competency of Witnesses 187 1. Idiots 188 2. Lunatics 189 3. Children 189 4. Infidels 190 5. Prisoners 191 6. Husband or Wife of Prisoner 191 7. Coroners 192 8. Jurors 192 9. Constables 193 2. — Primary Evidence 193 3. — Presumptive Evidence 194 4. — Matters of Opinion 195 5.— Matters of Privilege 190 (i. — Hearsay Evidence 197 7. — Relevancy of lividence 201 8. — Leading Questions 201 9. — Proof of Handwriting 202 10. — Proof of Documents 203 11. — Admissibility of Inquisitions, etc., taken before Coroners. . 2Gi> CHAPTER XII. THE coroner's COURT. Sec 1. — When and v?here Holden 205 2.— Who may Attend 207 3. — The J ury, and how Summoned 209 4.— The Witnesses, and how Summoned 220 5.— Counsel 226 6. — Opening the Court 228 7.— Viewing the Body 230 1. The Place where the Body is Found 233 2. The Position of the Body 235 3. The Marks and Spots upon the Body and Clothing 238 4. The Surrounding Objects 241 5. The Bearing and Conduct of the Parties in Attendance 242 CONTEXTS. Xlll PAGE. Sec. 8. — Continuing and Adjourning the Court 242 9.— The Medical Testimony 249 10.— The Depositions 268 11. — Obstructions — How Punished 272 12.— The Inquisitio 273 1. The Venue 274 2. The Place where Holden 275 3. The Time when Holden 275 4. Before whom Holden 276 5. The View 276 6. The Description of the Deceased 276 7. Where the Body lies 277 8. The Jurors and their Finding upon Oath 277 9. The Charge to Inquire 278 10. The Verdict 278 11. The Party Charged 279 12. The Addition 280 13. The Allegation of Time and Place 280 14. The Description of the Act 281 15. The Attestation 284 13. — Publication of Proceedings 285 14. — Defraying Expenses 286 CHAPTER XIII. PROCEEDINGS SUBSEQUENT TO THE INQUISITION. Sec. 1.— With Reference to the Trial 292 2.— Of Bail 293 3. — Of Amending and Taking New Inquisitions 294 4. — Of Traversing Inquisitions 296 6. — Of Quashing Inquisitions 296 6. — Of Pleading to inquisitions 301 CHAPTER XIV. SCHEDULE OF FEES. Sec. 1.— The Coroner's Fees in Inquests of Death 3()3 2.— The Coroner's Fees in Fire Inquests 307 1. In Cities, Towns and Villages 307 2. In Country Parts 308 3.— The Coroner's Fees for Executing Civil Process 309 4.— The Fees of the Medical Witness 310 5.— The Chemist's Fees ... 312 6.— The Jurors and Witnesses 313 7.— The Constable's Fees 314 XIV CONTENTS. CHAPTER XV. PilOORAMME OR GENERAL ORDER OF PROCEEDINOS BT A COBONEB IN HOLDING AN INQ0E8T. PAGE. Bec. 1. — Programme at Inquesti Super Visum Corporis 317 2. — Programme at Fire Inquests 339 Appendix— Forms 3^^ Index ^^^ t I * * L-> ■■■« ,» ■»■ 1 » < ADDENDA ET CORRIGENDA. At the end of note 1, page 11, change 573 to 613. In line 12, from the top of p. 24, change page 13 to p. 12. Page 27, note 3, should read, see Chap. XIV. s. 2. Add to note 3. p. 36,— but see Eex v. Dolby, cited Umf. 144. Add to note 3, p. 38,— but see 48 Geo. III. c. 13, s. 5, referred to on p. 36. At the end of note 1, page 110, add,— But see Reg. v, Dudle,, and Stephem, L K. 14 Q. B. D. 273, 560 ; and Arp v. The Stute, Alabama bupt. Court. Add to the paragraph on p. 144, commencing "Poison of snakes," the tollowing :— In Venezuela, where poisonous snakes are common, it is said tliat a plant called the ocumillo, when powdered and applied to the bite of a snake will effect a cure in almost all cases. DITTIES OF CORONERS m CANADA AND NEWFOUNDLAND. PARTI. THEIR OFFICE AND DUTIES GENERALLY. ^.r,J^T^'~^'' ^^? P''^^^'^* ^,'^'*'°" °^ *'"« wo'-k the reader will find the general coroner's law, and the special coroner's law of Ontario nt le earlier part of each section ; and the special law (if there is any o? t le other Provinces, and of the Territories of Canadi. and of the Colony of Newtoundland, will be found mentioned at the end of each section CHAPTER L • OF THE OFFICE AND APPOINTMENT OF CORONERS. Sec. 1.— the ANTIQUITY OF THE OFFICE. . . . i . " 2.-QUALIFICATI0NS AND DISQUALIFICATIONS o " 3.— MODE OF APPOINTMENT []"" 5 Sec 1.— the ANTIQUITY OF THE OFFICE. The common law office of Coroner is one of great antiquity, and much learning and research have been expended in shewing its origin and high ' repute ; but any lengthy remarks on these subjects would be unsuited to a work designed for practical use. It will suffice to state that the origin of the office is involved in obscurity, but it is suppu.ed to be coeval with that of sheriff, and to have been instituted to aid in keeping the peace when the B. C— 1 2 DUriES OF COROyhRS. Earls gave up the \\ irdship of the county. It was certainly in existence in tlie time of King Alfred, and the Coroner is mentioned in the charter of Athelstan to Beverly, anno 925.^ The precise designation of the oflicer appears to have varied from time to time. In the reign of Bichard the First he was called Coronarius ; in that of John, Coronator, or Gustos j^^f^citoriim coroncs, because originallj' he had the custody of the rolls of the pleas of the crown, m the reign of Henry the Second, he was called Serviens regis, and in the Scotch law, Crowner, an appellation still in use among uneducated persons. '^ According to Sir Thomas Smith, who wrote in 1683, the name of the office came from the word " crowner" or ** coromator," because " the death of every subject by violence is accounted to touch the crowne, and to be a detriment to it ; in other words, a coroner was a representative of the crown." The coroner's court is a court of record.^ In Newfoundland, the office of coroner was abolished by 38 V. c. 8, N. F., and all inquests subsequent to 17th April, 1875, required to be held by stipendiary magistrates, who were given all the powers of coroners, except the power of summon- ing juries. Sec. 2.— qualifications AND DISQUALIFICATIONS. Formerly the office of coroner was of such high repute that no one under the degree of knighthood » Jer. 0. C. 3 ; Impey, O. C. 473. » Jer. 0. C. 2. * 4 Inst. 271 ; 2 Hale's F. C. 63. DUTIES OF COROSKIiS. 3 could aspire to its attaiiuiient,^ and in the reign of Edward the Third a coroner was actnall}' removed from the office because he was a merchant ! It has, however, now fallen from such pristine dig- nity ; and though still of great respectability, no qualifications are required beyond being a male of the full age of twenty-one years, of sound mind, and a subject of her Majesty, and possessing the amount of education and mental ability necessary for the proper discharge of the duties.^ These qualifications are no more than what all public officers by the common law are supposed, and ought, to possess. The coroner has often a very delicate and very important duty to perform, and it need hardly be said that the proper dis- charge of that duty depends almost entirely on his personal character and ability. Where these are deficient, scenes sometimes occur at in(piests which throw discredit upon the office of coroner. Coroners in Ontario are not competent or qualified to be justices of the peace during the time they exercise their office. But an exception is made in territorial and temporary judicial dis- tricts, where stipendiary magistrates may be appointed coroners for such districts.* And pro- vincial coroners appointed in Ontario for holding' fire investigations are justices of the peace for every county and part of Ontario by virtue of their office.* And a stipendiary magistrate for any terri- »3Ed. I. c. 10. * It is said a coroner ought to have sufficient property to answer all aach fines and duties as belong to him. •R. 8.0.0.71,8.8. *54 V. 0. 37, 8. 1, Ont. 4 DUTIES OF COROXERS. torial or temporary judicial district in Ontario may be a coroner for the district.^ Before acting as coroner, the oath of allegiance and the oath of office should be taken,^ since hold- ing an inquest without taking these oaths would subject the coroner to a penalty, although his acts would probably be legal. In Quebec. — No coroner in the districts of Quebec and Montreal can be a justice of the peace for the district wherein he is coroner during the time that he exercises his office.'* In Nova Scotia. — By E. S. N. S., 5th series, c. 75, s. 19, holding a tavern or shop license would disqualify a person from being a coroner in that province. And when an inquest is to be held in Nova Scotia upon the body of a person killed in a • mine accident, no person having a personal interest in, or employed in, or in the management of the mine in which the explosion or accident occurs, or any relative of the deceased person, can act as coroner therein.^ In Prince Edward Island, coroners must reside in their respective counties. ^ The oath of office and allegiance must be taken before the Lieut. - Governor in Council, or the Lieut. -Governor, or before the chief justice of the Supreme Court, or any assistant judge of said court, or before any of the county court judges of the county. And the person administering the oath delivers to the , » R. S. O. c. 71, 8. 8. " See Forms, Nos. 2 & 4. =■ R. S. Q., 1888, Art, 2560. . * R. S. N. S. 0. 8, 8. 24. » See Act 1855, P. E. I. . . DUTIES or COROSKliS. coroner a certificate under his hand, that the oaths were duly taken before him, and this certificate must be filed in the office of the provincial secre- tary before the coroner enters upo)i the duties of his office.^ In British Columhia, a coroner, before acting in his offiv^e, should take the oath of allegiance,^ and the oath of office,^ either before persons appointed by the Lieut. -Governor in Council for the purpose, or before a stipendiary magistrate, or justice of the peace. No fee is payable for administering these oaths. The oaths so taken are to be transmitted by the person administering the same to the pro- vincial secretary, who files them in his ofifice.^ In Manitoba^ coroners cannot be justices of the peace, but " under special circumstances and in view of the public convenience, and in the promo- tion of the public interest," the Lieut. -Governor in Council may, by special commission under the Great Seal, confer upon one and the same person the offices of coroner and justice of the peace ; and during the time the ^erson holds such com- mission he can exercise and perform the duties of both offices.'' Sec. 8.— mode OF APPOINTMENT. In England, coroners are of several kinds — such as by virtue of office, by charter, privilege, or commission, bj^ election, etc. Those by virtue of their office are, the Lord Chief Justice and the 1 39 V. c. 14, sa. 1, 2, 3 P. E. I. ' See Form No. 3. ' See Form No. 5. ,„ . - * R. 8. B. C. 1888, c. 24, ss. 3, 4. ' R. S. M. c. 93, 8. 8. a DVTIEH OF COROIfKRS. other jud^'cs of the High Court who are said to he sovereif,'!! coroners, and have jurisdiction in all parts of the reahn.^ But in Ontario coroners must be specially appointed by the Lieut. -Governor by commission under the Great Seal f unless, indeed, the Chief Justice and the other judges of the Supreme and High Courts in Canada are sovereign coroners virtate officii., in a siuj'lar manner to the judges of the corresponding courts in England. Une or more coroners are lirst ai)pointed for each county, city and town and for any provisional judicial, temporary judicial, or territorial district, or provisional county, or for any portions of the territory of Ontario not attached to a county for ordinary municipal and judicial purposes.^ The appointments are generally made upon the recom- mendation of a member of parliament, or other person possessing influence with the executive. When one county separates from another the municipal law of Ontario requires the Lieut. - Governor to appoint one or more coroners for the junior county, whose appointments take effect on the day the counties become disunited.^ With regard to the number of coroners for any county, city or town in Ontario there is no regula- tion. The number not being limited, the appoint- ments are in part governed by the requirements of ' 2 Hale, 53. » It is Baid that in some counties the clerks of the peace claim the right to retain in their custody the coroners' commissions. If the fees are paid and oaths taken, there is no authority for their doing this, unless the commission contains the names of more than one coroner, when it should not be given to any particular one, but should be retained by the clerk of the peace, » R. S. O. c. 80, s. 1. ___^ ^ ,^. ,.,,:i „, * R. S. 0. c. 184, B. 46. : ' Dl'TIES OF COROSKRS. 7 the locality, and possibly in part by the energy shown by those seeking the oflice. In Ontario, *' provincial coroners," for puipoaes of holding,' fire investigations, are appointed by the Lieut. -Governor in Council under the Great Seal.^ As to these coroners, see further at p. 29. The coroner, according to the definition at connnon law, is an officer of the king that hath cognizance of some pleas of the crown;'' but there are several (hities imposed by statute. The temire of office is during the Queen's pleasure and the coroner's residence within the pi^vince ;' but practically he holds office for life. Like . other officers, he may be removed for several reasons, which will be further noticed under chapter V. In Quebec, the judges of the Court of Queen's Bench, crownside, are coroners in and throughout the province. In Nova Scotia, coroners are appointed by the Lieut. -Governor in Council. And in this province, in the absence of the coroner, an inquest may be held before a justice of the peace. ^ In this province coroners are sworn into office before a judge of the Supreme Court, or the war- den of the county.^ In New Bninswich, under 54 V. c. G3, the Lieut. -Governor in Council may, from time to time, appoint such and so many coroners for the » 64 V. 0. 37, 8. 1, Ont. » Their power in proceeding to trial antl indictment was taken away by Miii/na Clitirta, c. 17. ' See the Commission Form, No. 1. " * R. S. Nova Scotia, 5th series, 1884, c. 17, ss. 1, 7. :, - -: ''- - ' •/(/., 8. 1. ; B DUTIES vF COROXERS. city and county of St. John as may be deemed expedient, but not exceeding three such coroners resident in the city^ and one resident in each parish. :: ■• '■■.■■" ■■^^ ■ < In Prince Edivard Island^ the Lieut. -Governor in Council is authorized by an Act passed in 1855 to appoint one or more coroners in and for each of the counties of Prince, King's and Queen's, in addition to the then existing coroners, and these coroners must reside in their respective counties. In the absence of a coroner an inquisition may be held before a justice of the peace ;' and by 51 V. c. 12, s. 38, P. ll. I., the coroners of the county of Queen's county are coroners of the city of Char- loUetown, but are not to exercise any power or authority over the city relative to civic matters. In British Cohivihia, the Lieut. -Governor in Council, from time to time, appoints the coroners, ■either for the whole province or for any less exten- sive jurisdiction, as he may deem proper.^ In Manitoba, coroners are appointed by the Lieut. -Governor in Council under the Great Seal, and the appointments are for the whole province.^ In the North-West Territories coroners can be appointed by the Lieut. -Governor, from time to time, for the whole territories, and the Indian com- missioner for the territories, the judges of the Supreme Court, the commissioner and assistant- »39 V. c. 17,8. 4. p. E.I. »R. 8. B. C. 1^88, c. 24, 8. 2. " , .^ --c ....-..-..,. ^ * R. S. Man. c. 32, ss. 2, 3 ; and by the same Act all former appoint- ments for the several counties of the province are extended to the whole province. DUTIES OF COROyERS. 9 commissioner of the mounted police, are also ex officio coroners for the territories.^ In Keewatin, the Lieut. -Governor, who is the Lieut. -Governor of Manitoba for the time being, •appoints the coroners for the district.^ In Mamtoulbi, all coroners resi'^ing, on 23rd March, 1888, in that portion of Algoma set apart as "The Temporary Judicial District of Mani- toulin," ceased to have any autiiority in the remainder of the district of Algoma, and became coroners for the temporary judicial district, without new commissions, by the saDie tenure of office and without again taking the oaths. The Lieut. - Governor of Ontario appoints the subreouent coro- ners for Manitoulin.^ By C. S. 0. c. 71, s. 8, a stipendiary magistrate for any territorial or temporary judicial district in Ontario may be appointed a coroner foi the district. This is one of the exceptions to the general rule which disqualifies a justice of the peace from being made a coroner in Ontario. In Newfoundland , the office of coroner was abol- ished after 17th April, 1875, by 38 V. c 8, N. F., and . tipendiary magistrates were given ex officio all the powers - coroners, except the power of summoning juries. > R. S. Can. c. 50, s. 82, « R. S. Can. c. 53, ss. 7, 23. ' R. S. O. c. 80, 9. 1. 10 DUTIES OF CORONERS. CHAPTER II. THE DUTY AND AUTHORITY OF CORONERS GENERALLY. Skc. l— as conservators of the peace 10 " 2.— in inquests of death 11 " 3.— TO INQUIRE INTO THE ORIGIN OF FIRES 24 " 4.— TO RETURN INQUISITIONS 29 " 5.— TO EXECUTE PROCESS 33 " 6.-0THER DUTIES 42 Sec. 1.— AS CONSERVATORS OF THE PEACE. The duty and authority of coroners generally will be considered in this chapter. Their particular duties and mode of proceeding will be treated of hereafter.^ The powers of coroners are judicial and minis- terial. Judicial, as ir. the case of inquests upon bodies, and must be executed in person.'^ Minis- terial, as in the execution of process of the courts, and may be executed by deputy.^ Coroners in former days were the principal con- servators of the peace within their counties, and may now bind to the peace any person who makes an affray in their presence.* In Ontario by R. S. O, c. 71, s. 8, coroners are forbidden to act as justices of the peace during the time they use or execute their office, but in the case of Kerr v. The British American Assurance Co7tipany,^ it seems to have been admitted that a > See Part II. » Impey O. C. 473 ; 14 Ed. 1. » Jer. O. C. 71. * 1 Bac. Abr. 491 ; 2 Hawk. P. C. c. 28, s. 5. • 32 U. C. Q. B. 569. DUTIES OF COROSERS. 11 coroner was a justice of the peace by virtue of his office, Morrison, J., saying that Mr. J. H. Cameron, Q.C., very properly conceded on the argument, that a coroner is a magistrate; and Adam Wilson, J., concurred in the judgment, which was, that a cor- oner is a magistrate who may give a certificate of loss under an insurance policy. At the time this case was decided, the Ontario Statute law in this respect was the same as it was up to the passage of 54 V. c. 37, Ont. by s. 1 of which Act, Provincial Coroners can be appointed by the Lieut. -Governor in council wno are both coroners and justices of the peace for every county and part of Ontario for the purposes of holding fire investigations.^ This Act appears to authorize the creation of a new class of coroners for fire investigations only, but it does not interfere with the powers of the ordinary cor- oners in regard to similar enquiries." Sec. 2.— in INQUESTS OF DEATH. When it is made to appear to any coroner in Ontario that there is reason to believe a deceased person came to his death from violent or unfair means, or by culpable or negligent conduct, either of himself or of others,^ under such circumstances as require investigation by a coroner's inquest and not through mere accident or mischance, or upon > See C. S. C. c. 100, 8. 17 ; Davii v. The Justices of Pembrokeshire, ' L. E. 7 Q. B. D. 573. '^ See 8. 3. ' In 8. 4 of R. S. O. c. 80, the words "either of himself or" are left out, so that in cases of death from the culpable or nej^li^ent conduct of th'. ('eceaxed calling for an iiyuest to be held, the request for the inquest of tie county attorney, had better be obtained, or no claim to any fees can ba made notwithstanding' the inquest in such cases is sanctioned by 8. 2 o : the Act. 12 DUTIES OF COROXERS. being notified by the proper authorities of the death, no matter from what cause, of any prisoner con- fined in any gaol, penitentiary, prison, house of correction, lock-up house, or house of industry, it is the duty of such coroner to hold an inquest forthwith upon the body. This is the language of the K. S. of Ontario, c. 80, ss. 2 & 3, and it places the question of holding inquests in a clearer light than the old statute of Edward I., De officio coron- atoris, which formerly regulated and defined the duties of coroners. By this latter statute the cor- oner was directed to hold an inquest on information of any " being slain or suddenly dead," and although dying suddenly was always interpreted as not mean- ing deaths from apoplexy, fever or other visitation of God, yet it left room for the very improper practice to spring up of holding inquests on the bodies of all who died suddenly. There is now no excuse for such a custom; and the coroners who hold inquests without the proper information or notice, are greatly to blame. And in Ontario no fees can be claimed unless, prior to issuing the warrant for summoning the jury, the coroner makes a declaration in writing under oath^ stating that from information received by him, he is of the opinion that there is reason for believing that the deceased did not come to his death from natural causes or from mere accident or mischance, but from violence or unfair means or culpable or negligent conduct of others under circumstances requiring investigation by a coroner's inquest, unless the inquest is held upon the written request of the ' See form No. 14. DUTIES, OF COROSERS. Ift crown attorney, or in the districts of Muskoka, Parry Sound, Rainy River and Nippissing, upon the written request of a stipendiary magistrate, or the inquest is held on the body of a prisoner/ The language of Chief Justice Jervis is very appropriate to the subject. He says: " Coroners ought not in such cases, nor indeed in any case, to obtrude themselves into private families for the purpose of instituting inquiry, but should wait until they are sent for by the peace officers of the place, to whom it is the duty of those in whose houses violent or unnatural deaths occur, to make immediate com- munication, whilst the body is fresh, and, if possible, whilst it remains < ii the same situation as when the person died."^ It is very desirable, as will be seen hereafter, that an inquest (when there is occasion for one) should be held with as little delay as possible ; yet nothing can be riore reprehensible than unseemly haste, instead of wp^'^nig until properly acquainted with the necessity lor an inquiry.'^ The power of justices to decline allowing items in coroners' accounts for holding inquests, which in their opinions were unnecessary, was tried before the Court of King's Bench in England, in Bex v. Kent (Justices), 14 East, 229, when the court 1 R. S. O. c. 80, ss. 3, 4. " The lant^uage of Lord Ellenborouoh, C.J., in Rex v. Kent (Justices) 11 East, 229, is very much to the same effect and he pronounces tlie con- duct referred to as "highly illegal." ' Coroners have been known to arrive before death has taken place, and to have watched the advent of that which gives them jurisdiction ■ with an avidity far from beinj; creditable. An inquest must always be a painful proceeding to those who generally have charge of the body, more particularly when accompanied by a pout mortem examination ; and coroners who wantonly give additional pain to that which a sudden death has already caused, cannot be too strongly condemned. 14 DUTIES OF COnONERS. refused to compel the justices to allow au item in the coroner's account, which had been struck out because there was no ground for holding the in- quisition. And it has been held in Ontario, that if the justices audit the accounts before them at all, the Superior Courts will not review their decision.^ But if the coroner exercises a reasonable discre- tion in coming to a conclusion "it is made to appear to him" there is a proper case for an in- quest, his judgment in the matter will govern, and the Board of Audit in Ontario will not be justified in refusing to pass proper items of his account, provided the coroner has inade the declaration in writing under oath above mentioned.^ Let it be borne in mind, then, that no inquest is now justifiable unless the deceased person came to his death from violence,^ or unfair vieans* or by cidpahle^ or negligent conduct,^ either of himself or of others, luider such circumstances as require in- vestigation, unless %e deceased was a prisoner confined in a gaol. The jealous care with which the law watches over the safety of all imprisoned, * Davidson v. The Quarter Sessions of Waterloo, 22 U. C. Q. B. 405. • In re Fergm and Gooley, 18 U. C. Rep. 341. ■ In jndf^ing whether a death is comprehendetl under any of these terms, they must he read in connection with the words " under such circumstances as require investigation," for every death from violence, negligent conduct, etc., need not of necessity require investifjation. For instance, if a man is choi)pin;4 by himself, and in felling a tree it strikes and kills him, without there being any reason to suppose he wilfully placed himself in its way, there would be no circumstances connected with his death calling for investigation, although caused by " violence." On the other hand, if another man was chopijiag with him and the cir- cumstances of the death appeared to require investigation, an inquest might properly be held. * See the previous note. » See note 3, page 14. • Bee note 3, page 14. DUTIES OF conoxKm. 15 renders it proper and necessary to hold inquests upon the hodies of such persons, whether they die a natural death or not ; and the statute ahove mentioned requires those having charge of such prisoners immediately to give notice of the death to a coroner. Formerly in all cases of the death of a lunatic in a private asylum in Ontario inquests had to be held, but the law has been changed and now when a patient dies in a private lunatic asylum, a statement of the cause of the death, with the name of any person present thereat, must be forth- with drawn up, and signed by the medical atten- dant of the house, and a copy, duly certified by the proprietor or superintendent, must, ivitliin forty - eight hours after the death, be sent by the pro- prietor or superintendent to the nearest coroner.^ But it does not necessarily follow that, upon receipt of this statement an inquest must be held. It is merely a notice to the nearest coroner of the death, and he should, on its receipt, enquire whether the circumstances attending the death, call for in- vestigation, and, if they do not, he should proceed no further. The statute of the Province of Ontario, above referred to, requires an inquest to be held on the death of a prisoner in the penitentiary, but the Dominion statute relating to penitentiaries . in all the provinces, including Ontario,'* states, that if a convict dies in a penitentiary and the inspector, warden, surgeon or chaplain has reason to believe that the death of such convict arose from any other - » R. S. 0. c. 246, a. 44 ; see forma Noa. 12 & 13. • See R. S. C. c. 183, a. 65. . 16 DUTIES OF CORONERS. than ordinary causes, he shall call upon a coroner having jurisdiction, to hold an inquest upon the body of such deceased convict, and upon such requi- sition by one or more of the officers named, the coroner shall hold an inquest on the body of the deceased convict, and, for that purpose, he and the jury, and all other persons necessarily attending the inquest are to have admittance to the prison. The language of this Dominion statute does not expressly take away the right a coroner has to hold an inquiry upon the body of a deceased convict when a proper case for one is otherwise brought to his notice, but, to avoid any unseemly conflict, or any difficulty in obtaining admission to a peniten- tiary ; when a coroner thinks it proper to hold an inquest, the requisition mentioned had better be obtained from one Qf the proper officers of the institution. If such is refused, the coroner would be justified in not holding an inquest. The statute of Ontario for the proi .ction of infant children provides that no person shall retain or receive for hire, or reward, more than one infant ; and, in case of twins, more than two infants, under the age of one year, for the purpose of nursing, or maintaining such infants apart from their parents, for a longer period than twenty-four hours ; except in a hguse which has been registered by the muni- cipal council of the locality ; and incase of the dearth of an infant in any such registered house, the per- son registered must, within twenty-four hours after such deith, cause notice thereof to be given to the coroner for the district w'ithin which the infant died, and the coroner must hold an inquest on the hUTIES OF COnOXKRS. 17 body unless a certificate under the hand of a regis- tered medical practitioner is produced to him by the person so registered, certifying that such medi- cal practitioner has personally attended or exam- ined the infant, and specifying the cause of its death, and the coroner is satisfied by the certificate that there is no ground for holding an inquest.^ Inquests in these cases appear to be exceptions to the general rule in Ontario, which, under section 4 of R. S. 0. c. 80, requires a coroner to take the oath therein prescribed before issuing his warrant to summon a jmy, to entitle him to fees. \Yhen judgment of death has been executed on any criminal, it is tne duty of a coroner of the dis- trict, county or place to which the prison where the offender was executed belongs, within twenty- four hours after the execution to hold an inquest on the body of the offender, and inquire into and ascertain the identity of the body, and whether judgment of death was duly executed on the offen- der. In these cases the inquisition must be in duplicate, and one of the originals is to be delivered to the sheriff. No officer of the prison or prisoner confined in the prison shall in any such case be a. juror on the inquest.^ The coroner being a judicial officer when hold- ing inquests must, in Canada, act in person, and not by deputy.^ In what manner coroners should require the facts justifying inquests to be evidenced before. 1 R. S. O. c. 209, 89. 128. » 55-06 V. c. 29, 8. 944, Dora. » Wood's Inst. 64, c. 1 ; Rex v. Farrand, 3 B. & A. 230 ; 1 Chit. 745. B. c— 2 18 DUTIES OF COROyERS. they proceed to hold them, must generally depend upon the circumstiincen of each case. By analo,i,'y to other legal proceedings, the information should be on oath, and the Government in Ontario will not now pay accounts for inquests unless they are accompanied by the information on oath mentioned on p. 12. For the form of the information, see Form No. 14. The inquiry can only be taken upon view of the body (siqyer visum corporis) and must be restricted to the cause of death of the person upon whom the inquest is taken. The question as to how much of the body must be forthcoming to warrant an inquesi, depends upon whether the portion produced can possibly throw any light upon the cause of death. In cases of suspected poisoning any portion whatever might ■supply evidence one way or the other ; and in cases of burnt bodies even the ashes might prove of im- portance. While on the other hand, an inquest might be held on a considerable portion of a body which would afford no evidence of the cause of death, or possibly it might be found the original owner of the port' was still alive ! No general rule can be laid down on this question. Coroners should exercise a careful judgment in the matter after fully considering all the circumstances of each case that can be ascertained, and if there is any reasonable doubt regarding the propriety of an inquest, let the doubt be given against holding it, and leave the enquiry, if one is necessary, to the magistrates. If a body has been so long buried DUTIES OF CORONERS. 19 as to afford no information a coroner is not justified in causing it to be disinterred, and if he does so, he may be fined. ^ It is usually supposed that in an ordinary grave, a body will become skeletonized in about ten years. ^ Yet the skeleton alone might afford very material evidence in some cases. The inquest and inquisition being judicial acts they must not be done in Ontario on a Sunday.^ Where there are several coroners for the same place, an inquest may betaken by one or more; but when one proceeds in the matter, the acts of others will be void."* A coroner has no power after holding an inquest sujyei' visum corporis and recording the verdict; to hold a second like inquest mcro 7notii, on the same body; the first inquisition not having been quashed, and no writ of melius inrMrenclum having been awarded." It is a punishable offence to bury the body of a person who dies a violent death, without affording an opportunity of holding an inquest.® If an inquest ought to be held, it is a misdemeanor for any one so to dispose of the body as to prevent the coroner from holding the inquest.' One inquisition may be taken on the bodies of several persons killed by the same cause and dying > 2 Lev. 140; and see o. 5, s. 1, and c. 12, s. 1. =» Tidy Vol. I., p. 135. t ' 7 Co. f)66; Dakim' caite 2 Saund. 291a; Jervia O. C. p. 279 ; In re Elizabeth Cooper, et al: 5 Prac. Rep. 256: It is submitted that section 729 of the criminal code (55-56 V. c. 29) will not apply to coroners inqnests. i *2H. P. C. 59. ^ » «^i;. V. TF/u?f 3 El. & El. 137. I • 4 M. S. Sum. 838. •' The Queen v. Price L. R. 12 Q. B. D. 247 ; The Queen v. Sttphemon, L. R. 13 Q. B. D. 331. 20 DUTIES OF CORONERS. at the same time;^ but the mileage and fees can only be charged for the one in(iuest.'^ After receiving notice, the coroner summons a jury, and proceeds with the inquest as directed in Chapter XII, Part II. In Quebec no inquest can be held unless as in Ontario a declaration in writing under oath is made by the coroner and giving a summary of the in- formation received and on which he makes the declaration; and the declaration must be returned and filed with the inquisition.^ Upon the death of any prisoner in Quebec, the warden, gaoler, keeper or superintendent of any penitentiary, gaol, reformatory, house of correction or lock-up, in which such prisoner dies must immediately give notice to a coroner, detailing the death.* In Nova Scotia the law governing the procedure of coroners is simply the common law and practice of England and the language of Chief Justice Jervis quoted on page 13 sufficiently points out when an inquest should be held in this province. But when the coroner finds the death has been caused by an explosion or accident in a mine of which notice should be given to the commissioner and the majority of the jury think it necessary, he should adjourn the inquest to enable the inspector or some other properly qualified person appointed by the commissioner, to be present to watch the pro- ceedings, and at least four days before holding the ' Reg. V. West 1 G. & D. 481 ; 5 jur. 484. 2 Rex V. Warwick (justices) 5 B. & C. 430. ' - - ■■" R. S. Q. 1888, Art. 2687 & 55-56 V. Que, .. • * R. S. Q. 1888, Ar*i. 2668. r DUTIES OF COROXERS. » adjourned inquest the coroner must send to the coniinissioner, notice in writing of the time and place of holding such adjourned inquest. But before *^^he adjournment the coroner may take evidence io identify the body and may order the interment thereof. The inspector or such other person appointed by the commissioner, or a person appointed by the workmen of the colHery at which the accident occurred, must be allowed at any such inquest to examine any witness, but subject to the order of the coroner. If the inspector or other person appointed by the commissioner is not pre- sent at the in(piest, and evidence is given of any neglect havinr, caused, or contributed to, the explo- sion or accident, or of any neglect in or about the mine, appearing to the coroner or jury to require a remedy, the coroner must send notice in writing to the inspector, of such neglect or default.^ In New Bnuiswich, unless an inquest is held upon the written request of the attorney, or solic- itor-general, or the clerk of the peace, or of a clerk of a county court, no fees are payable to any coroner in respect thereof, unless prior to issuing the warrant for summoning the jury, he makes a declaration'^ in writing under oath before a justice of the peace, a commissioner for taking affidavits to be read in the supreme court, a notary public, or any two freeholders resident in the county in which the inquest is to be held, stating that from information received he is of the opinion that there is reason for believing that the deceased 1 R. S. N. S. c. 8, 8. 24. = See form No. 14. --,^--^.-. ,.-: 22 DUTIES OF CORONERS, came to his death under circumstances requiring investigation by a coroner's inquest. This oath must be returned and filed with the inquisition.'' But if the coroner does not deem an inquest neces- sary, or if two justices of the peace of the county, certify to him that he will be justified in granting a warrant for burial of the body,^ he should forthwith issue his warrant to bury the body with- out taking an inquisition.^ In Prmce Edivard Island the coroner's law of England is taken as it stood in 1773 with some few statutory provisions added since that date and the language of Chief Justice Jervis quoted on page 13 sufficiently points out when an inquest should be held in this province. But in Prince Edivard Island the coroner having authority to hold an inquest is the one resident nearest the place where the deceased person died, or in his absence out of his county, or in the event of his being incapacitated from acting by illness, interest or otherwise, then the inquest is to be held by such coroner whose residence is next nearest to the place of death of the deceased.* In this province in the absence of a coroner an inquest may be held before a justice of the peace. ^ In British Columbia t'e language of Chief Justice Jervis, quoted 01^ P'^^ge 13, sufficiently points out when an inquest should be held, since, in thig » 52 V c. 14, 88. 1, 2, N.B. » See form No. 46. » Con. Stats., N.B., c. 63, a. 7. ^P. E. I. Act of 1855. »39 V.c. 17, B. 4, P. E. I. DUTIES OF COROXJSRS. 23 respect, the law of England as it stood on 19th Nov., 1858, governs. In Manitoba coroners cannot claim any fees for inquests unless prior to holding them they take a similar declaration as is required in Ontario,^ unless the inquest is held upon the written request of the attorney-general or of a pohce magistrate, or when the inquest is held upon the body of a, prisoner who has died in any prison, gaol, house of correctioii or lock-up. The declaration is to be administered by a justice of the peace or by any other person authorized by the Manitoba Oaths-. Act, to take affidavits for use in Manitoba, and. must be returned and filed with the inquisition.** In The North-West Territories upon the death of any prisoner, the gaoler, or officer in charge of the gaol wherein such prisoner dies, must imme- diately give notice of the death to the ne^^rest resident coroner, and upon receipt of such notice the coroner must proceed forthwith to hold an inquest upon the body. In all other cuses no inquest is to be h Id upon the body of any deceased person by any coroner, unless it has been made to appear to such coroner that there is reason to believe the deceased died from violence or unfair means, or by culpable or negligent conduct, either of himself or of others, under such circumstances as require investigation, and not through mere accident or mischance.^ How it is to be " made to appear " that an inquest is necessary, is left to the ^ See p. 13 and form No. 14. " Rev. Stat., Man., c. 32, 8. 5. » Rev. Stat., Can., c. 50, s. 83, 84. 24 DUTIES OF CORONERS. discretion of the coroner, but it is recommended that he should take a statement of the facts relied upon, on oath. In the District of Keeivatin the law relating to coroners does not appear to have been changed since the District was set apart, and consequently the law relating to the North-West Territories will govern as to when an inquest should be held. Seep. 23. In the Temporary Judicial District of Mani- toulin the law as to when an inquest should be held is the same as in Ontario. See p. 13. In Neufounclland in all cases of persons slain, drowned, suddenly dead, felo de se, or dead in prison, or in cases where the medical attendant on any deceased person refuses to certify that such per- son died from natural causes ; an inquiry respecting the death of such person must be held by a stipendiary magistrate, who in addition to all other powers possessed by him as a stipendiary magistrate, has all the powers excepting the power of summoning juries, which a coroner has under the law of Eng- land.^ Sec. 3.— to INQUIRE INTO THE ORIGIN OF FIRES. A coroner has no ex officio jurisdiction to hold an inquest to inquire into the origin of a lire by which no death has been occasioned,'^ but coroners now have authority, by an Ontario statute, and it is their duty in Ontario to institute an inquiry into the origin of hres. The first statute on the subject, 18 V. c. 157, was limited to Quebec and Montreal, > o2 v. c. 25, B. 22, N. F. » lictj V. Her/onl, 3 El. & El. 115 : DUTIES OF COROXERS. -io but this was repealed by 20 V. c. 36, forming c. 88 of the Con. Stats. Can., 1859, and now embodied in c. 217, Eev. Stat. Ont., which enacts that wlien- ever any lire has occurred whereby any house or other building has been wholly or in part con- sumed, the coroner within whose jurisdiction the locality is situated, shall institute an inquiry into the cause or origin of such tire, and whether it was kindled by design, or was the result of negligence or accident, and act according to the result of such inquiry. It is not the duty of coroners to institute inquiry into the cause or origin of all fires indiscriminately. They should first be satisfied that there is reason to believe the fire was the result of culpable or negligent conduct or design, or occurred under such circumstances as, in the interests of justice and for the due protection of property, require investigation. The statute does not point out how the circum- stances justifying the holding of an inquiry shall be made to appear, and it therefore rests with the coroner to act upon such information as he may deem sufficient, whether upon oath or otherwise.^ In cases of loss by fire in which any fire insur- ance company is interested, any justice of the peace, or any one having lawful authority to ad- minister an oath or aflirmation in any legal pro- ceeding, may also in Ontario, investigate into the cause of the fire and as to the persons profiting thereby.^ ' '^. S. O. c. 217, 8. 1, In re Fenjus d- Cooley, 1« U. C. Q. B. 341 « R. S. C c. 107, 8. 120: see also 54 V. c. 37, s. 1, a-a. 5, Ont, 26 DUTIES OF CORONERS. Formerly in Ontario the coroner was entitled to be paid his fees by the treasurer of the municipa- lity, whether he made it appear to the author- ities that an inquiry was proper or not.^ Now, no municipality is liable for any such expense, unless the investigation be required by a requisition under the hands and seals of the mayor or other head officer of the municipality, and of at least two other members of the council thereof; and such requisition is not to be given unless there are strong special aid public reasons for granting the same.*^ And no expense of or for an adjourn- ment of any such inquest is chargeable against or payable by the party, or municipal corporation, calling for or requesting the investigation to be held, unless it is clearly shown by the coroner, and certified under his hand, why and for what purpose an adjournment took place, or became necessary in his opinion.'' It has been held that the want of funds in the treasurer's hands was no answer to an application for a mandamus to the treasurer to pay the coroner's fees in a case where the municipality was liable for them, and where the payment was not refused on that ground.* When investigating accidents by fire, a coroner can in his discretion impannel a jury or not, unless he is required to do so on the written requisition of an insurance agent, or of any three householders ' Con. Stat. Can. c. 88, s. 9. 'R. S. O. c. 217,8. 9. ^ ,-- » R. S. 0. c. 217. a. 10. * In re Feign* and Cooley, 18 U. C. Q. B. 341. DUTIES OF CORONERS. 27 resident in the vicinity of the fire.^ His duties and powers in these investigations, as to taking down the evidence, summoning jurors and wit- nesses, (fee, are the same as inordinary inquests.^ The jury and witnesses in these investigations will be noticed in Chapter XII, and the fees in Chapter XIV. In the case of Kerr v. The British America Ass. Co., 32 U. C. Q. B. 5G9, it was held that a coroner is a magistrate who may give a certificate of loss under an insurance policy. This case was decided before 54 V. c. 37 (0)., by section one of which statute certain coroners are made justices of the peace for every county and part of Ontario for the purposes of holding fire investigations. By this statute it seems a new order of coroners has been created in Ontario called "provincial coroners." They are by virtue of their appoint- ment both coroners and justices of the peace for every county and part of the province for the pur- poses of holding fire investigations only. Before provincial coroners can enter on any such investi- gation they must obtain the consent in writing of either the attorney-general, or county attorney for the county wherein the investigation is proposed to be held. Their fees are the same as those charge- able by ordinary coroners when holding fire inves- tigations,^ and they are paid in like manner. And ia . all other respects — as under what circumstances an inquest can be had — when a jury may be impanelled > R. S. O. c. 217, B. 3. " R. S. O. c. 217, 88. 4, 5, 6. 'See c. 4. . • 28 DUTIES OF COnOXERS. — the power to summon witnesses, &c., the power and proceedings of provincial coroners are the same as those of ordinary coroners when holding fire inquests.^ The creation of this new order of " provincial coroners " does not appear to he intended to i iter- fere with, or in any way supersede, the duties and powers of ordinary coroners as to holding fire investigations. InNova Scotia, New BnmszvicJc, Prince Edward Island, British Columbia, Manitoba, The North- West Territories and Keeivatin, coroners have no power to hold fire investigations. In Manitoulin, coroners have the same powers and duties as regards fire investigations as coroners have in other parts of Ontario. In Quebec, coroners have the same powers and duties as to investigating accidents by fire as in Ontario,^ except that the provisions of 24 Y. c. 33 (C). limiting the responsibility for the expenses of the fire inquests to the party requiring the investi- gation, and requiring an instrument under the hands and seals of the head ofticer of the munici- pality and of at least two other members of the council to make the municipality liable for the expense of the investigation, and also not allowing the expenses of an adjournment unless it is clearly shown by the coroner and certified under his hand Avhy an adjournment took place, are limited to Ontario and these provisions do not apply to Quebec. 1 54 V. c. 37, s. 1, Out. '^ Con. Stats, of Canada 1859, c. 88, 23 V. c. 35, Can. I DUTIES OF CORONERS. 29 And ill the cities of Quebec and Montreal fire inquests cannot be held by coroners, but must be held by inspectors and superintendents of police or recorders,^ In Newfoundland, wherever any building or property is injured or destroyed by fire, the stipen- diary magistrate or justice for the district in which the fire occurs, or such justice as the governor in council may^appoint therefor, shall make an inves- tigation to ascertain the cause or origin thereof, and these officials have power to enforce the attend- ance of witnesses by summons or warrant and to examine them under oath.'^ Sec. 4.— to RETURN INQUISITIONS. In every case of investigation super visum corporis found before coroners in Ontario, the inquisition, and every recognizance taken before them, with the written information (if any), and the depositions and statements (if any) of the accused, shall be forthwith delivered to the crown attorney for the county in which such inquisition has been found. ^ The returns of fire inquests held in Ontario, either by ordinary coroners or by Provincial cor- oners, are to be made to the clerk of the peace for the district or county within which they have been taken/ Under this section it will be proper to mention that coroners in Ontario are required to return lists 1 Con. Stats. Can. c. 88, s. 8. ^52 V. c. 25, 8. 21, N. F. 3 R. S. O. c. 80, s. 13, and c. 79, s. 10. * R. S. 0. c. 217, 8. 2 ; 54 V. c. 37, 8. 1, s-s. 5, Ont. 30 DUTrES OF CORONERS. of the inquests super visum corporis held by thorn during the preceding year, together with the find- ings of the juries, to the provincial treasurer, on or before the first day of January in every year,^ and the coroner who holds an inquest, before the body is interred, should supply the division registrar of the divisioi. in which the death took place, accord- ing to his knowledge or belief, with all the particulars required to be registered, touching such death by the form provided in the K. 8. 0. c. 40, s. 14.'^ The division registrar is the clerk of the munici- pality, except, until municipal organizations are formed, in Algoma, Nipissing, Thunder Bay, Rainy River, Muskoka and Parry Sound, and any terri- torial district formed after 31st December, 1887. Por these latter places division registrars are specially appointed by the Lieut. -Governor in council. In Nova Scotia, coroners must return each inquisition held sup)e7' visum corporis to the clerk of the crown for the county, at or before the next sittings of the Supreme Court, and the clerk must file the same without charging any fee, and give the coroner a certificate containing the date of the inquisition, and the date of filing the same. And on or before the 10th January in every year, coroners in Nova Scotia must return a list in tripli- cate of all the inquests held by them during the year, together with the findings of the juries, to the office of the provincial secretary, under a penalty of $20.^ And in inquests arising out of mine accidents » R. S. O. c. 80, 8. 14. ' See Form No. 114. » R, S. N. S. 5th series, 1884, c. 17, 8s. 2, 8. DVT I EH OF CORONERS. ' 31 when the inspector or some other person appomted by the commissioner is not present, and the evidence shows any ne^^lect as having caused or contributed to the death, or that any defect about the mine exists which appears to the coroner or jury to require a remedy ; it is the duty of the coroner to give the inspector notice in writing of such neglect or default.^ In New Brunswick, the evidence taken at any inquest super visum corporis, together with the inquisition and the oath of the coroner stating tiie investigation was required (see form No. 15), must in all cases, except where a verdict of murder or manslaughter or accessory to murder before the fact shall be rendered against any person or per- sons, be immediately thereafter transmitted by the coroner to the clerk of the peace for the county in I which the inquest is taken, who must file the same I in his office. No fees for holding an inquest will I be paid until after the coroner shall have filed the examinations or depositions except in the cases above excepted. And in New Brunswick coroners are also required on or before the first day of January in every year, to return to the provincial secretary a list of inquests held by them during the preceding year, together with the findings of the juries.^ In Prince Ediuard Island, a law wps passed in 1836 regulating the duties of coroners, and among • these duties, coroners were required to certify and sabscribe the evidence taken before them, and all » K. S. N. 8. c. 8. 8. 24. « 49 V. c. 27, 88. 1, 2, N.B. ; 52 V. c. 14, 83. 1, 2, 3, N.B. 82 DUTIES OF COROSEIiS. recognizances and the inquisition, in cases of man- slaughter or murder or accessory to murder before the fact, and dehver or transmit the same to the proper officer of the court in which the trial was to be held before or at the opening of the court ; under a penalty of such fine as the couit should think meet. In 1855 another Act was passed making it the duty of all coroners holding inr quests under the authority of that Act to trans- mit the proceedings and finding of the same to the Lieut - Governor in council, in order to their publication if thought necessary. Again in 1876 a further Act was passed^ requiring coroners to return their inquisitions to the clerk of the crown within fifteen days after holding the same, who is to file the same without fee, and give the coroner a certificate containing the date of the inquisition and the date of filing the same. No express pro- vision is made in either of the last two statutes, repealing the requirements of the others, but inas- much as when the inquisiitions are filed under the last statute w^th the clerk of the crown, it be- comes impossible to file them with any other officer, this last statute must be taken as super- seding the other two, and the returns had better be made in all cases to the clerk of the crown. In British Columbia coroners are required forthwith after an inquest, to return the inquisition and every recognizance taken before them, with the depositions and statements (if any) of the accused, to the attorney general of the province. And also they are required, on or before the first day of » 39 V. 0. 17, P.E.I. hl'TIH-'^ <>/■' CO/ioXK/iS. 83 i Jiinuary in every year, to return to +'ie provincial secretiiry, a list of the in(|uests held by them during' the precedin*,' year, toi. ^2H.P. C. 15, 16, 51. n Str. 1007, 231. " y Pr. R. 123. Dl'T/ES OF COltOXERS. 45 prisoner, for the notice of death under the third section of the Coroners' Act (B. S. 0. c. 80) to be given to a county coroner where the death has taken place in a city or town having a coroner of its own. And if the notice is ^iven in such a case to a coroner for the county he had better decUne to act for fear of want of jurisdiction. Tlie great hikes of Canada are within the Admir- alty jurisdiction, and offences committed on them, although in American waters, are as if committed on the high seas, but coroners should not act in such cases unless the body is within their county.^ Coroners of counties have also jurisdiction when the death happens between high and low water mark upon the sea coast, during the time when the soil is not covered with water. ^ In these cases of extended jurisdiction the coroner had better see that the body is brought within his county before holding the inquest.'^ Where there is any doubt, the jurisdiction of the connnon law ought to be preferred.^ Sec. 3— supreme JURISDICTION. Coroners virtutc officii have supreme jurisdic- tion everywhere,^ within the limits of their ordin- ary ofticial jurisdictions. ^ li-'!l V. Sharp, 5 Pr. Rep. 13'j. - 3 [nat. 113 ; 5 Rep. 107 ; Lucie's Case, 2 Hale, 17, 20 ; 1 East, P. C. c. 51, b. 131, and see Parker v. Elliott, 1 C. P. 470-491, note, and Gage v. Bates, 7 C. P. 11(1. •* It is paid of a Memphis, Tennessee, coroner, that he complained his luck was against him, because there had been four street shootings in that American city, without fatal results : and, in three instances, the bodies of drowned men had floated out of his jurisdiction ! * East, P. C. 0. 17, 8. 10. ' 4 Rep. 47. 46 hf'TIF.S OF COnOXERS. CHAPTER IV. OF THE RIGHTS OB' CiJRONEllS. Sec. 1.— general REMARKS l(v " 2.— THEIR RIGHT TO FEES 46 '• 3.— THEIR EXEMPTION FROM SERVING OFFICES 48 " 4. THEIR PRIVILEGE FROM ARREST 48 " 5. AS TO THEIR OTHER RIGHTS AND PRIVILEGES.. 48 Sec. 1.— GENERAL REMARKS. Coroners, while acting judicially, have no right 1,0 appoint a depnty.^ In England, this right has been conferred by statute,^ but we have no such enactment in Canada. The ministerial duties of coroners may however be executed by deputy, but the return of process must be made in the name of all.'^ Sec. 2.— THEIR RIGHT TO FEES. Their office was originally one of such great dignity, that coroners would not take any reward for their services ;'* and afterwards (when no doubt ^ the weakness of human nature began to get the better of our forefathers' pride) they were forbidden by statute to accept anything for executing their office, upon pain of heavy forfeiture.^ It was not until the reign of Hen. VII. that coroners were paid a regular fee for holding inqui- • Cromp. Just. 227 a ; 2 H. P. C. 58 ; 1 E. P. C. 383. •^ 6 & 7 V. c. 83, etc. ■* Jer. O. C. 71, and see Chap. II. sec. 5. ■• 1 Com. 347. » 2 Inst. 210, 17«. DUTIES UF COHOX/C/iS. 47 sitions, and then only in cases of persons slain, when they received 18s. 4d.' Afterwards, they were paid for all inquests except those taken upon the view of bodies dying in a gaol or prison.- And now, they receive renunieration in all cases. If the authorities refuse to allow fees to a coroner, his only remedy is to apply to a superior court for a mandamus.'' The writ must state all the circumstances of the case ; must shew that he is entitled tg the relief prayed ; and that he had a right to recjuire the auditors to do that, for the non-performance of which the writ was sued out.^ It has been held a coroner was not entitled to be paid for an incjuisition taken upon a dead body under 25 Geo. II. c. 29, unless the inquisition was signed by all the jurors.^ In Newfoundland, the act abolishing the office of coroner,'^ and requiring inquests to be held by a stipendiary niagistrate, does not provide for the payment of any special fees to the magistrate for holding the inquest. For the execution of process and other acts incident to their ministerial character, coroners are also entitled to fees. For a Schedule of Fees, see chapter xiv. 1 3 Hen. VII. c. 1. -' 25 Geo. II. c. 29. '■' From the judgment of the Court of Queen'8 Bench, in re Davuhon and the Quarter Sessiom of Waterloo, 22 U. C. Q. B. 405, it seems the , superior courts will only compel an audit. So if a coroner's account is audited and portions thereof disallowed, the auditors' judgment in the matter will not be interfered with. M T. R. 52. ° Rex V. Norfolk (Justices) 1 Nolan, 141. « 38 V. c. 8 (Newf.). 48 hI'TIKS OF lOROXKHS. Bec. 8.— THf:m EXEMPTION FROM SERVING OFFICES. Coroners are exempt troiii serving' offices which are inconsistent with the (hities of coroner, and are not liable to be sunnnoned as jurors.^ And they are exempted from bein^' elected, or appointed, members of a innnicipal conncil, or to any other mnnicipal office in Ontario.'^ In M(i/iit()h(i, coroners are exempted from serv- hv^ on <(rand and petty jnries,'' and from l)einff elecjied, or appointed, members of the nnmicipal conncil or to any mnnicipal office.^ Sec. 4.— THEIR PRIVILEGE FROM ARREST. The same principle which exempts jndges and ofHcers of the snperior conrts from arrest while ex- ecuting their judicial duties, seems to apply to coro- ners; and in a case tried in England, Mr. Justice Gaselee expressed his opinion that this exemption extended to coroners, while going, remaining, or returning, for tlie purpose of taking an inquest. Sec. o.— as TO THEIR OTHER RIGHTS AND PRIVILEGES. In this place it may be stated that coroners were formerly entitled in Ontario to a copy of the Provincial Statutes of each session ; but under the present regulations 'they are not so entitled; an order in council having been passed in 1859 discon- tinuing the practice which had theretofore obtained, of furnishing the statutes to coroners, and a circular ' 2 Roll. Abr. 632, s. 4 ; F. N. B. 167 ; R. S. O. c. 52, s. 6. s-s 13. - R. S. O. 0. 184, s. 78. • =' R. S. Man. 0. 81, s. 3. / ' ___ ^ R. S. Man. c. 100, a. 55. hi TIES OF t'UliONKHS. 49 letter to that effect was addressed to the Clerks of the Peace in Upper Canada, on the 27th of June of that year. They ought to be furnished witli Usts of constables by the Clerks of the Peace, whenever ordered to be so furnished by the Justices in General Sessions.^ A coroner, as a judge of a court of record, is not liable to a civil action for any thing done by him in his judicial capacity, if he acts indiscreetly or erroneously ; and generally where there is reason- able and probable cause for the act complained of, it is of no moment whether there was malice or not." An action does not lie against a coroner for defamatory words spoken by him while holding an inquest.' Trespass will not lie against a coroner for turn- ing a man out of a room where the coroner is about to hold an inquisition.^ 1 R. S. O. c, 83, sch. p. 839. - Garner V. Coleman, 19 C. P. 106. 3 Thomas v. Churton, 8 Jur. N. S. 795 ; 2 B. & S. 475. * Garnctt v. Farrand, 6 B. & C. 611. B. C— 4 i I 50 DUTIES OF COnOXERS. 1 CHAPTER V. i OF THE LIABILITIES OF CORONERS. 'I ;' SEC. 1.— FOR MISCONDUCT 50 " 2.— TO BE REMOVED 55 " 3.— FOR THE ACTS OF CO-CORONERS 56 SEC. 1.— FOR MISCONDUCT. No action will lie against a coroner for any act honesiily done by him in his judicial capacity, but if coroners be guilty of any misconduct, either in their judicial or ministerial capacity, they are liable to be punished.^ If a coroner, after notice, do not view the body and take an inquisition in convenient time f if he conceals felonies, or is remiss in his duty throufjjh favour ; if he misconducts himself in taking an inquisition ; if he does not return the inquisition in proper time ; or takes an inquisition without viewing the body ; or if he do not reduce to writing the evidence given to the )ury before them, or so much thereof as shall be material, and certify and subscribe the same, together with the recognizances and inquisitions before them taken ; or in Ontario if he do not return a list of inquests held by him, together with the findings of the juries, to the provincial treasurer, on or before the first day of January in every year ; or if he does not supply the Mer. O. C. 93 ; darrett v. Ferrand, 6 B. & C 611 ; Thomas v. Churton 2 B. & S. 475; Kemp v, Nevile 10 C. B. N. S. 523; Garner v. Coleman 19 C. P. 106. ' See Form of Indictment, No. 6. DUTIES OF CORONERS. 51 Division Registrar of the division in which a death takes pLace, and inuo the cause of which he makes inquiry, before the interment of the body, with all the particulars required to be registered ; or if he wil- fully and knowingly demands or receives any other or greater fee or allowance than the fee or allow- ance to which he is entitled ; in any and all these cases he renders himself liable to punishment.^ And if a coroner neglects to discharge the duties required of him by the Dominion Act respecting Anatomy^ he is liable to a Hue of not more than $20 for every such offence. These duties will be found stated in Chapter XII., section 8, and relate to the disposal of certain dead bodies. Coroners in Ontario taking money to excuse any man from serving or being summoned to serve on juries may be fined. '^ Coroners generally in Ontario during the time they use or exercise the ordinary duties of their office, are not qualified to be justices of the peace ; and if they act as such, their proceedings ar'>! void and of no effect, and they themselves become Hable to be heavily fined.* If the body has been so long buried as to afford no information on view, a coroner will not be justi- fied in causing it to be disinterred ; and if he do so, he may be fined .^ ' 2 H. p. C. 58 ; 3 Ed. I. c. 10 ; 1 Leach, c. L. 43 ; Jer. O. C. 90 ; R. S. 0. c. 40, 38. 14-28 ; R. S. O. c. 83, 8. 7. -R. S. C. c, 149 as amenJed by 52 V. c. 24, Doin, =' R. S. O. c '■•" s. 170. * R. S. O. c. V J , 6. 8 ; and see p. 10 ; Davies v. JuKtice of Pemhrokshire, L. R. 7 Q. B. D. ol3. » 2 Lev. 140. ? ■I i'l' 6% DUTIES OF COROXKRS. But in some cases it is hard to say ivhat lapse of time would destroy all information which might be obtained by disinterring the body. For instance in cases of poisoning, or when identification is important and there is any fracture of bones/ false teeth cfec.'^ A coroner is not justified in delaying the inquest upon a dead body in a state of decomposition for so long a period as five days, in order that the body may be identified and buried and registered under the right name, and the mere fact that it has been placed in a mortuary can make no difference.^ A coroner is guilty of an indictable offence in taking a sum of money for not holding an inquest. Whether he has any pretense for holding the inquest or not, he is equally criminal in having extorted money tc refrain from doing his office.^ If a coroner inserts in the inquisition a material fact not found by the jury, he may be indicted for forgery.^ By Stat. 1, Hen. VIII., justices of assize and justices of the peace within the county have power to inquire of, and punish the defaults of coroners. In their ministerial character coroners are liable, like sheriffs in actions of debt, for an escape,*^ case 1 It will be remembered that in the case of Dr. Livingstone after his body was brought to the coast by a long journey from the interior of Africa, and then by ship to England, its identity was considered proved by a peculiar and unusual false joint known to exist in one of his arms, the result of a fracture received in an encounter with a tiger. - See remarks on p. 18, and in c. 12, s. 1. » In Re Hull L. R. 9 Q. B. D. 689. *Itex V. Harrison, 1 East P. C. 482. » 3 Salk. 172. « 3 Lev. 399 ; 6 Mod. 37. DUTIES OF CORONERS. 53 for a false return,^ or by attachment/^ according to the circumstances of the case, and generally, if coroners misconduct themselves in the execution of any writ, warrant or process, entrusted to them ; or wilfully and without the consent of the person in whose favour the writ, warrant or process was issued, make any false return thereof, they are guilty of an indictable offence and liable to be lined and imprisoned,^ and by an Ontario statute,* they shall answer in damages to any party ag- grieved by such misconduct or false return. Coroners cannot, when acting ministerially, directly or indirectly, purchase any goods or chat- tels, lands or tenements, exposed to sale by them under execution.^ Coroners entrusted with the execution of any writ, warrant or process, mesne or final, who wil- fully misconduct themselves in the execution of the same, or wilfully make any false return to such writ, warrant or process, unless by the consent of the party in whose favour the process may have issued, shall, upon conviction thereof before a court of competent jurisdiction, be liable to line and imprisonment in the discretion of the court, and shall answer in damages to any party aggrieved by such misconduct or false return. ° In Nova Scotia, coroners who do not make a return in triplicate of the inquests held by them, ' Freem. 191. - 2 Bl. 911, 1218. 3 55-56 V. c. 29, a. 143 Can. *R. S. O. c. Iti. SB. 28, 29. «E. S. O. c. 16,88. 27, 29. « R. S. O. c. 16, 83. 28, 29. 64 Dl'TlES OF COROXERS. together with the findings of the juries to the office of the provincial secretary, on or before the 10th of January in every year, are Hable to a penalty of $20.^ And coroners and others who fail to comply with the provisions of E. S. N. S. c. 8, s. 24, are guilty of an offence against that Act.^ In New BrunsivicTx, the only penalty prescribed by statute for a coroner's neglect in immediately returning the evidence and inquisitions to the clerk of the peace is, that he shall not be paid his fees until the return is made.^ No statutory penalty is provided for neglect in making the yearly returns to the provincial secretary, but for not taking the declaration required before issuing his warrant for the jury, the coroner forfeits his fees altogether.* In Prince Edward Island, coroners who do not make their proper returns in cases of homicide are liable to pay such fine as the court to whose officer the returns should be made, shall think meet.*^ In British Golumhia, there is no statutory penalty prescribed for a coroner's neglect in making returns of inquests held by him.° In Manitoba, coroners forfeit their fees for all inquests held without making the declaration re- quired before issuing the warrant for the jury.' In The North-West Territories, there is no sta- tutory penalty for not making returns of inquests. 1 R. S. N. S., 5th series, 1884, c, 17, s. 8. - The provisions here referred to will be found in their proper places throughout this work. 3 49 V. c. 27 N. B. «52V. c. 14, ss. 1,3N. B. » See Acts of 1836, P. E. I. _ - - «51 V. c. 24, a. 17, B.C. 7R. S. Man. c. 32, 3. 5. -^ [i.. DUTIKH OF VOROyEltS. 55 In Keeiuatin, there is no statutory penalty for not making returns, but such returns as the Lieut. - Governor directs to be made are required to be made by R. S. C. c. 53, s. 27. In ManitoKlin, the law is the same as in the rest of the provinces of Ontario. In Neivfoundlajid, any person takinf? greater fees than prescribed by law for each offence forfeits the sum of ^60.^ Sec. 2.— to BE REMOVED. If a coroner is convicted of extortion, wilful neglect of his duty, or misdemeanour in his office, the court before whom he is so convicted has power, under 25 Geo. II. c. 29, to adjudge that he be removed from his office. Or a coroner may be re- moved by being made a sheriff, or by the Queen's writ De coronatore exonerando,^ for a cause therein assigned.^ It was held in England that the Great Seal has powers independently of the 25 Geo. II. c. 29, to remove coroners from their office for neglect of duty." Confinement in prison out of the county is a sufficient ground for the removal of a coroner from his office, although during his absence another coroner of the same county has performed his duties.'^ 152 V. C.-25, s. 31, N. F. ^SeeForm, No. 7. »Jer. O. C. 94. ■» Ex parte Parnell, 1 J. & W. 451 ; Ex parte Pasley, 3 D. il- W. 34 (Ir.). « £x parte Parnell.l J. & W. 451. ^® DUTIES OF CORONERS. Sec. 3.— foe THE ACTS OF CO-CORONERS. The default of one coroner, when ^Qimgjudici- alh/, will not render his co-coroner liable; but when coroners act ministerially, it is said they are all responsible for each other's acts civilly, although not criminally.^ 1 1 Mod. 198 ; 2 Mod. 23 ; Freem. 91. or TIES OF COROXHRff. 57 PART II. THEIR OFFICE AND DUTIES IN PARTICULAR. CHAPTER I. OF OFFEXDERS. Sec. 1.— who MAY COIVIMIT CRIMES-INFANTS 57 " 2 —PERSONS NON COMPOS MENTIS 58 1. DEMENTIA NATURALIS 59 2. DEMENTIA ACCIDENTALIS 59 3. DEMENTIA AFFECT ATA 00 " 3.— PERSONS IN SUBJECTION TO POWEROF OTHERS. 60 " 4.-IGN0RANCE (52 '! 5.— MISFORTUNE (52 Sec. 1.— who MAY COMMIT CRIMES. The consent of the will is the great criterion by which to judge of the criminality of actions ; hence where there is no will there ought not to be any liability. Five heads contain all the causes which the law recognizes as exempting, in part or in whole, from liability by reason of defect in the will.^ . INFANTS. Under seven years, no person can be convicted of an offence by reason of any act or omission of such person.'-^ Between the ages of seven and fourteen, the presumption of law is that the infant is not capable of a mischievous discretion ; but this presumption '1 H. p. C. 14. - 55-56 V. c. 29, 8. 9, Dom. 58 Dl'TlllS Of VOhOXERS. ' can be rebutted by strong evidence of his capacity to jud',e between good and evil.^ If, therefore, circumstances of inahce be proved to the satisfaction of the jin-fj, and that the accused is competent to know the nature and consequences of his conduct, and to appreciate that it was wrong, an offender between seven and fourteen years of age may be convicted and punished for a capital crime. ^ Persons over fourteen are jjiima facie responsible for all their acts,'' and cannot escape punishment except they are shown to come under one of the other heads of exemption. Skc. 2. -PERSONS NON COMPOS MENTIS. The second class of persons who are not responsible for their actions by reason of want of will is the insane. All persons at the age of dis- cretion are presumed by law to be sane, and, unless the contrary is proved, are accountable for their actions; and if a lunatic has lucid intervals, the law presumes the offence of such a person to have been committed in a lucid interval, unless it ap- pears to the contrary.* No person can be convicted of an offence by reason of an act done or omitted by him, when labouring under natural imbecility or disease of the mind, to such an extent as to render him incapable of appreciating the nature and quality of the act or omission, and of knowing that such act or 1 4 Com. 23 ; 55-56 V. 29, s. 10, Dom. 2 1 H. P. C. 25, 27 ; 4 Com. 23 ; 55-56 V. c. 29, s. 10, Dom. n H. P. C. 25. * 1 Hale, 33, 34 ; 55-56 V. c. 39, s. 11, Dom. DUTIES OF VOJiOX£J:S. 59 omission was wrong ; and a person labouring under specific delusions, but in other respects sane, shall not be acquitted on the ground of insanity, unless the delusions caused him to believe in the exist- ence of some state of things which, if it existed, would justify or excuse his act or omission.^ Those who are defective in the understanding and are over the age of discretion, are divided into three heads : — 1. Dementia naturalis, idiotcy or natural fatuity. 2. De?ne?itia accidentalis, adven- titious insanity. 3. Dementia affectata, acquired madness. 1. Idiotcy or natural fatuity. An idiot is a fool or madman from his birth, without any lucid intervals. The deaf and dumb who cannot dis- tinguish right from wrong are by presumption of law idiots, and are not answerable for their actions, but this presumption may be rebutted by strong evidence of understanding. Owing to the humane and successful efforts which have of late years been made to instruct this unfortunate class of persons, many of them have been raised from a state of at least legal idiotcy to one of high intelligence, and are in consequence responsible for their actions.^ The question of idiotcy is one of fact to be decided by the jury, but every one is presumed to be sane at the time of doing or omitting to do any act until the contrary is proved.^ 2. Adventitious insanity may be either j;arfirt/, its victim being insane on only one subject, or 1 55-56 V. c. 29, b. 11, Dnm, "• 1 Hale, 34 ; 55-56 V. c. 29, ss. 7, 11, Dora. ^ Bac. Abr. Idiots (A.) Bro. Idiots 1 ; 55-56 V. c. 29, s. 11, s. -s. 3, Dom. 60 DUTIES OF COROXEHS. total, permanent (usually called madness) or tem- porary (the object of it being afflicted with the dis- order at certain periods and under certain circum- stances only), commonly called lunacy.^ While labouring under this disorder, no one is criminally responsible for his actions;'^ although a partial aberration of intellect which does not prevent the party from distinguishing right from wrong will not excuse his guilt.'' Cases of much difficulty sometimes arise with this class of persons. Under this head may also be classed persons rendered non compos by a disease, as fever or palsy, or from concussion, or injury to the brain, etc. 3. Acquired madness arises from drunkenness or the administration of something which produces frenzy. Voluntary drunkenness is no excuse for crime, but on the contrary, aggravates it.* Still the insanity caused by a habit of intoxication excuses from punishment.'' Intoxication, too, may be considered as a circumstance tending to show a want of premeditation. ° Sec. 3— persons IN SUBJECTION TO POWER OF OTHERS. Persons who do acts in obedience to existing laws or from the coercion of those under whom the • " In other cases reason is not driven from her seat, but distraction sits down upon it alonj^ with her, holds her trembUng upon it, and frightens her from her propriety." — Erskine's Speech in defence of Had- lield, vol. 4, p. 12(), 3rd ed., by Rigway ; and see the nice distinctions therein drawn with regard to insanity. 24 Rep. 125 Bac. Abr. Idiots (A). 3 1 H. P. C. 30; 55-56 V. c. 2'J, s. 11, Dora. " 1 H. P. C. 32 ; Co. Litt. 247 » 1 H. P. C. 32. « I Russ. s. 7 ; C. & P. 817, 207, 145. But seeRoscoe's Cr. Ev. 637. hi THIS (>/•• ionoXKIiS. 61 private relations of society place them in subjection, are in many cases excused from the consequences of criminal misconduct. The classes of these persons usually requiring to be noticed are married women, children and servants. When the husband was actually present while the wife committed some crimes, the law presumed she was acting under his coercion ;^ but this presumption ceased on 1st July, 1893, on which day the new criminal code came into force. By that statute it is enacted that no presumption shall be made that a married woman committing an offence, does so under com- pulsion, because she commits it in the presence of her husband.^ But if it is proved on her behalf that the offence was really committed by compul- sion of her husband, who is present when the crime is committed, the wife will still be excused if she commits a crime not of a heinous character.'^ This protection also extends to children, servants and all other persons, as well as wives, who, under compulsion by threats of immediate death, or grievous bodily harm, from a person actually present at the commission of the offence, if the accused is subject to such threats and believes such threats would be executed ; and who is not a party to any association, or conspiracy, the being a party to which rendered him subject to compul- sion. This protection will not apply to acts of treason as defined in the first five paragraphs of section sixty-five of the code, nor to murder, ' 1 H. p. C. 45, 47, 48, 516 ; 4 Bla. Com. 29. -55-56 V. c. 29, a. 13, Dom. ^ Murder and homicide are crimes of a heinous character. 62 DUTIES OF COROXKRS. piracy, offences deemed to be piracy, attempting to mnrder, assisting in rape, forcible abduction, robbery, causing serious bodily harm, and arson.^ SEC. 4.— IGNORANCE. Ignorance of the law is no excuse for crime, even in foreigners residing in Canada.^ Ignorance, or mistake, of fact, may excuse in some cases, as where a man kills one of his own family in mistake for a burglar.'* SEC. 5.— MISFORTUNE. If a person be doing anything unlaivfid, and a result ensue which he did not intend (as the death of another), the want of foresight is no excuse ; but if accidental mischief follow from the perform- ance of a laioful act, the party is excused from guilt.'' ' 55-56 V. c. 29, s. 12, Dom. - 7 C. & P. 456; 1 H. P. C. 42 ; 56-56 V. c. 29, s. 14, Dom. n H. P. C. 42-43 ; 4 Bla. Com. 27. * 4 Bla. Com. 27 ; 55-56 V. c. 29, s. 7, Dom. lii'TlES OF VOROSKIIS. 68 CHAPTER II. OF PARTIES AND ACCESSORIES. SEC. 1.— PARI E8 TO COMMISSION OF OFFENCES 68 " 2.— ACCESSORIES BEFORE THE FACT (iO " 3.— ACCESSORIES AFTER THE FACT ()6 SEC. 1.— PARTIES TO THE COMMISSION OF OFFENCES. Every one is a party to and guilty of an offence who : — {a) actually commits it ; or (6) does or omits an act for the purpose of aiding any person to commit the offence ; or (c) abets any person in commission of the offence ; or {cT) counsels or procures any person to commit the offence. And if several persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the pro- secution of such common purpose, the commission of which offence was, or ought to have been known to be a probable consequence of the prosecution of such common purpose.^ And every one who counsels or procures another to be a party to an offence of which that other is afterwards guilty, is a party to that offence, although it may be committed in a w^ay different from that ^ 55-56 V. c. 29, s. 61, Dom. ■6i4| DUTIES OF COROXKRS. which was counselled or suggested. And every one who counsels or procures another to be a party to an offence, is a party to every offence which that other commits in consequence of such counselling or procuring, and which the person counselling or procuring knevv or ought to have known to b& likely to be committed in consequence of such counselling or procuring.^ Every one who having an intent to commit ar offence does, or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended ; whether under the circumstances it was possible to commit such offence or not. The question whether an act done or omitted with intent to commit an offence is, or is not only preparation for the commist^ion of that offence, and too remote to constitute an attempt to commit it," is a question of law, and is to be decided by the juage or coroner, and is not one of fact to be left to the jury.^ The offence need not of neces-^ity be consum- mated in jjiesenceoi the aiders and abettors, provided they are present assisting at its cause. For instance, if poison be laid for a man, those present and concurring in laying it are all guilty of the offence, although absent when the poison is taken.-' The participation of aiders and abettors is either from a combination to commit the offence itself, or arising out o^ a combination to resist all oppof.ers ' 55-56 V. 0. 29, 8. 62, Dom. = 55-56 V. c. 29, s. 64, Dom. ■ Fost. C. L. 349 ; Kel. 52. DUTIES OF COROXERS. 65 to the prosecution of some other unlawful pur- pose. ^ Those who, being absent at the time of the offence committed, do yet procure counsel, com- mand or abet another to commit an offence are guilty of the offence.'^ The procuring is either direct, by hire, counsel, command or conspiracy; or indirect, by shewing an express liking, approba- tion or assent to another's felonious design of committing an offencj.'' But he who barely con- ceals an offence to be committed is guilty only of misprison of felony.* Those who procure the commission of an offence, though by the intervention of a third party with whom they have no communication, are guilty of the offence.^ If a man advise a woman to kill her child so soon as it is born, and she do so in pursuance of such advice, he is an accessory to the murder, though no murder could have been committed at the time of the advice.^ The act must be the probable result of the evil advice, and not substantially different from that advised. The test question, according to Mr. Justice Foster, being : " Did the principal commit the f'^lony he stands charged witl under the influ- ence of the flagitious advice, and was the event, in ' 2 Hawk. p. C. c. 29, s. 9. -1 H. P. C. Glo. •■'2 Hawk. P. C. c. 29, 8. 1.5. * 2 Tawk. P. C. c. 29, e. 23. n Post. C. L. 125; 19 How. St. Tr. 746, 748, 80t ; 5 C. & P. 535; 55-56 V. c. 29, sa. 61, 234, Doro. « 2 Hawk. P. C. c. 29, s. 18; Dyer, 168; 55-56 V. c. 29, as. 61, 234, Doir. B. -6 66 DUTIES OF CORONERS. the ordinary course of things, a probable conse- quence of that felony ; or did he, following the suggestions of his own wicked heart, wilfully and knowingly commit a felony of another kind, or upon a different subject."^ To manslaughter, it being sudden and unpre- meditated, there can be no accessories before the fact.^ An accessory cannot be guilty of a higher crime than his principal.^ SEG. 2— ACCESSORIES BEFORE THE FACT. " Accessories before the fact," since the crimi- nal code came into force (July 1st, 1893), are unknown to the law by that expression, being now included under " Parties to the commission of offences." SEC. 3— ACCESSORIES AFTER THE FACT. Accessories after the fact are not to be inquired of by coroners, as their duties are confined to ascertaining the cause Oi. death. 1 Foat, C. L. 372. 2 1 H. P. G. 347, 45r 6. Erie, J., in R. v. 'iaylor. Dears \/:i!S. 78 of persons exempt from responsibility, before enu- merated. Next — 'The Jcillim/ must be uulawfid. Consequently, when a criminal is executed by the proper officer, in pursuance of his sentence, this ia justifiable homicide. But if done by any other person, or not accordinj^ to the sentence, as by beheading when the sentence was han^Mug, it is murder. Officers of justice, gaolers and their officers, and others acting under authority, are protected in the proper execution of iheir duties ; yet if they wilfully exceed the limits of their authority without just cause, and death follow, the law implies malice, and considers them guilty of murder. If they are resisted in the legal execution of their duty, they may repel force by force, but they must not kill where no resistance is made, or after the resistance is over, and time has elapsed for the blood to cool. For the protection which the law extends to persons authorized to arrest or assist in arrestmg offenders, or to prevent the escape of prisoners after being arrested, see Part II. sections 1(3 to 37 of the Criminal Code, 1892. The Lieut. -Governor of any province in Canada may, from time to time, make regulations for the purpose of preventing escapes, and preserving dis- cipline in the case of prisoners in any common gaol, employed beyond the limits thereof, and prisoners properly employed on works without the central prison for the province of Ontario, are sub- ject during such employment to all the rules and regulations and discipline of such prison, so far as 74 DUTIES OF conoyKRs. the same are applicable, and also to such other regulations for the purpose of preventing escapes, and otherwise, as are approved by the Lieut. - Governor in that behalf.^ Under the regulations made in pursuance of this latter authority it will be remembered that the prisoner Robert Scott was lawfully shot by a guard while attempting to escape from the Ontario Central Prison. Procuring by false evidence the conviction and death of any person by the sentence of the law is not homicide.^ No one is criminally responsible for the killing of another by any inlluence on the mind alone, nor for the killing of another by any disorder, or dis- ease arising from such inlluence, save in either case by wilfully frightening a child or sick person.^ Every one who, by any act or omission, causes the death of another, kills that person, although the eifecf, of the bodily injury caused to such other person be merely to accelerate his death while labouring under some disorder or disease arising from some other cause. ^ Every one who, by any act or omission, causes the death of another, kills that person, although death from that cause might have been prevented by resorting to proper means. ^ Every one who causes a bodily injury, which is of itself of a dangerous nature, to any person, from which death results, kills that person, although J K. H. C. c. 1B3, ss. S, 23. =< 55-56 V c. 2'.), a. 221, Can. »55-5C v. c. 29, 8. 223, Clin. * 55-50 V. c. 29 s. 224, Can. "So-of) V. c. 29, s. 225, Can. DUTIES OF VOROXERS. 75 the immediate cause of death be treatment, proper or improper, applied in ^ood faith. ^ The penon killed must be a reasonable creature in being, a7id under the Queen's peace. Onthiws or ahens, bein^,' under the Queen's protection, may be the subjects of this offence. KiHing an alien enemy in the time of war is not murder.*^ The person killed must be m being ;''^ therefore a child in ventre sa mere cannot be the subject of murder. But if the child be born alive, and afterwards dies from potions or injuries received while in the womb, it is murder in such as administered or gave them.* The legal and other questions connected with in- fanticide being of much importance to coroners, a section is devoted to their consideration alone, to which the reader is referred for additional informa- tion on the subject. See section 3. The hilling may be bg ang unlawful means. — The means and mani.er of death are immaterial^ provided there is a corporal damage to the party .° With this exception to the proviso that if the party is a child, or sick person, and is wilfully frightened to death, the offence is culpable homi- cide, and may amount to murder. ° The means need not obviously tend to cause death, provided they apparently endanger life, and 155-56 v. c. 29, 8. 226, Can. 2 3 Inst. 50 ; 1 H. P. 0. 433. ^For the definition of when a child beqomea a human being within the pi-ovisiona of the Criminal Code, see pout, and 55-56 V. c. 29, B. '2111, Dom. * 1 Hawk. P. C. c. 31, s. 16 ; Jer. 151. ^ Jer. 152 ; 55-56 V. c. 29, ss. 220, 223, Dom. « 55-56 V. c. 29, ss. 220, 223. Can. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I !ria 2.5 KS 1^ 1 2.2 ^ 1^ IIP-0 1.8 1.25 1.4 16 ♦ 6" ► ^ V] % 'cr-l ■c*l .>>./ ^;. V %^ # -<^ O 7 Photographic Sciences Corporation iV 4^ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 871-4S03 ^V ^^ ;\ \ 6^ '-<* 76 DUTIES OF COROSERS. do ultimately occasion death, and are wilfully committed.^ Hence, carrying a sick person against his will, in a severe storm, from one town to an- other, by reason whereof he died, has been held to be murder.^ Murder may also be committed by means of an innocent agent as by persuading a lunatic to kill another person, or by purposely turning loose a furious animal with a knowledge of its disposition.^ If a physician or surgeon intend- ing to do his patient good unfortunately kill him, this is only homicide by misadventure ; * and it makes no difference whether the party be a regular physician or surgeon or not, if he act honestly and use his best skill to cure." A medictil practitioner must be guilty of criminal misconduct arising from the grossest ignorance or most criminal inatten- tion, to render him guilty of manslaughter f and a person acting as a medical man or surgeon, whether licensed or not, is not criminally responsible for a patient's death, unless his conduct shows gross ignorance of his art, or gross inattention to his patient's safety.'^ The consent of the party killed does not extenuate the crime, such consent being merely void f one who kills another by his desire, 2 Mood. C. C. 120 ; 9 C. & p. 356. 1 Hale, 429. U E. P. C. 225. a 1 E. P. C. 225. MBla. Com. 197; * 4 Bla. Com. 197 ; » 1 Hale P. C. 429. 8 3 C. & P. (535. " 1 liusR. 497 ; and the following is the language of the Canada Criminal Code (55-56 V. c. 29, s. 57, Dom.) : " Every one is protected from criminal responsibility for perforriiiiig with reasonable care and skill any flurgical >jieration upon any ptjrson for his benefit, provided that per- forming the operation was reasonable, having regard to the patient's state at the time, and to all th(i circumstances of the case.'' 8 55-56 v. c. 29, s. 59, Dom ^ ^ DUTIES OF COIiOXERS. 77 or persuades another to kill himself, is a mur- derer.^ There must be malice aforethought. This malice may be express and apparent, from the act being done with a deliberate mind, evinced by external circumstances ; or it may be implied from the nature of the act or the means used, without any direct enmity being proved, as where one kills ^notlier on a sudden, without any considerable provocation, the law implies malice.'^ So if a man deliberately strike another with a murderous instru- ment, without a sufficient cause, malice will be presumed. If the act intended to be done is founded in. malice, the act done, although done by accident, in pursuance of that intention, follows its nature.^ Hence if a man attempt to kill another, and accidently kill himself, he is felo de se)'^ or if in attempting to procure abortion death ensue, the person killing is guilty of murder.^ Although malice is presumed in every case of horr.icide, it may be rebutted by the accused shew- ^^s ; (1) There tvas ])rovocation. — To clear himself of homicide, which would otherwise be murder, the accused must prove — (i) That the provocation was of a description of which he was conscious. (ii) That it was unsought for, and was the immediate cause of the act. • 1 Hawk. p. C. c. 27, 8. 6. « Jer. 101 ; Impey, 501. »1 E. P. C. 230. * 1 Hawk. P. C. c. 27, 8. 4. , .^ •. ' »1 E.P. C. 230. 78 DUTIES OF COIiOXKRS. (iii) That the act was committed in the heat of passion caused by sudden provocation. Any wrong- ful act, or insult, of such a nature as to be sufficient to deprive an ordinary person of the power of self- control, may be provocation if the offender acts upon it on the sudden, and before there has been time for his passion to cool. Whether or not any particular wrongful act or insult amounts to provo- cation, and whether or not the person provoked was actually deprived of the power of self-control by the provocation which he received, are questions of fact to be decided by the jury and not by the coro- ner. No one can be held to give provocation to another by doing that which he had a legal right to do, or by doing anything which the offender incited him to do, in order to provide the offender with an excuse for killing, or doing bodily harm to any person.' An arrest will not necessarily reduce the offence from murder to manslau^ht because the. arrest was illegal, but if the illegality is known to the offender it may be evidence of pro\ocation.* (iv) That although the accused assaulted, or provoked an assault from the other party, still he used only such force under reasonable apprehension of death or grievous bodily harm from the violence of the person first assaulted, or provoked ; and in the belief on reasonable grounds, that it was necessary for his own preservation from death or grievous bodily harir provided he did not com- 1 55-56 V. c. 29, s. 229, Can. » 55-56 v. 0. 29, 8. 229, Can. DUTIES OF coRoyEns. 70 mence the assault with intent to kill or do grievous bodily harm, and did not endeavour at any time before the necessity for preserving himself arose, to kill or do grievous bodily harm. And provided also, that before such necessity arose he declined further conflict, and quitted or retreated from it as far as was practicable.^ • (v) That the accused was unlawfully assaulted, not having provoked such assault, and used only such force as was necessary for the purpose of self- defence, and that the death was caused under reasonable apprehension of death, or grievous bodily harm to himself, from the violence with which the assault was originally made, or with which, the assailant pursued his purpose, and he believing, on reasonable grounds, that he could not otherwise preserve himself from death or grievous bodily harm. Provocation within the meaning of this and the last preceding excuse (Nos. 5 and 6) may be given by blows, words or gestures.^ (2) That the 'party zvas killed in mutual combat. And this excuse will only avail or extenuate th<- offence where the occasion was sudden and unpre- meditated, and not the result of preconceived malice, and where the parties at the onset were on an equal footing in point of defence. The quarrel must not be a mere cloak for the purpose of grati- fying a concerted malicious design.^ 165-66V. 0. 29, s. 46, Can. -55-56 V. c. 29, ss. 45, 46, Can. . ^Jer. 169. • • 80 DUTIES OF CORONERS. Deliberate duelling is murder, both in the prin- cipals and seconds, if death ensue ; ' and no pro- vocation, however grievous, will excuse the offender.'' If two persons quarrel, and agree to fight a con- sidera])le time after, when the blood must have cooled, and death follows, it is murder;' and it is the same in all fights where the circumstances shew that the parties do not commence in the heat of passion.* As boxing and sword-playing are unlaivful acts, if either of the parties be killed, such killing is felony or manslaughter ; and, in general, if death ensues from any idle, dangerous and unlawful sport, the slayer is guilty of manslaughter. To teach and learn to box and fence are equally lawful. They are both the art of self-defence ; but sparring exhibitions are unlawful, because they tend to form prize-fighters and prize-fighting is illegal.* (3) That the kilhing teas occasioned by correction. Parents, or persons in the place of parents, school- masters, or masters, and other persons having proper authority, may give reasonable correction, under the circumstances, to any child, pupil or apprentice under their care;* but the correction must not exceed the bounds of moderation, either in the manner, the instrument, or the quality of UBla. Com. 199. »3 East, 531; 1 H. P. 0.452. n Hawk, P. C. c. 31, s. 32, * 1 Lev. 180. ^Hiint V. Dell, 1 Bing. 1. «1 E. P. C. 261 ; 65-56 V. c. 29, s. 55, Dom. DUTIES OF COROXKRS. 81 the punishment ; or else, if death ensues, it will be manslaughter, if not actual murder.^ (4) That the killing was without intention ivhilst doing another act. If the act is being done with an unlawful object, the killing which unin- tentionally follows, is murder, unless the accused did not know, and it was not imperative that he should know, the act was likely to cause death. ^ And if the death ensue without nitention from doing an act lawful in itself, with proper caution, according to its nature, it is generally homicide by misadventure.^ An important class of cases which often conies under the notice of coroners is that of deaths caused by negligent or wanton conduct, but without malice. This class includes deaths arising from f'lrious or careless driving, from racing, from the want of competent skill to perform acts which the person holds himself out as capable of performing, from doing a duty imposed by law negligently, or omit- ting altogether to perform such duty, from neglect of ordinary precautions in the execution of lawful occupations, and indeed arising from all accidents which are the result of negligence, omission, or wanton conduct in the performance of lawful acts. If there is express malice discoverable in these cases, or if there is such a wanton indifference to the safety of others shown in them as to <^on- stitute malice by implication, of course the killing would be murder. But usually malice is wanting,, 1 1 H. p. C. 473. . 2Fost C.L. aei ; 55-56 V. o. 29, a. 227, Dom. »Jer. O. C. 176. B.C.— 6 82 DUTIES OF COROXERS. and then the circumstances of each case must be considered to see if the offence is manslaughter or accidental death. No more can here be done than briefly to mention and illustrate the general principles which govern these cases. The broadest principle perhaps that can be laid down as applicable to the whole class of cases is this : if the circumstances indicate a wanton and malicious disregard of human life, the killing may amount to murder; if they indicate negligence only, the killing will be manslaughter ; and if they show an absence of even negligence, the killing will then be merely by misadventure or accident. And it seems that the death being partly caused by the fault of the deceased will not lessen the offence.^ It seems also that the greatest possible care in performing the act is not to be expected or re- quired, but there should be such care taken as is usual with persons in similar situations.^ While a person is expected to anticipate and guard against all reasonable consequences, he is noli expected to anticipate and guard against that which no reasonable man would expect to occur. ^ In the case of carriers of passengers for hire somewhat greater care may be required, for Hub- bard, J., in Ingalls v. Bell, 9 Mete. 1, 15, is reported to have said "that carriers of passengers for hire are bound to use the utmost care and diligence in the providing of safe, sufficient, and suitable car- iPer Pollock, C.B., in R. v, Swindall, 2 C. & K. 230; and see 1 C.