A DIGEST OF THE CRIMIl^AL LAW OF CANADA (CRIMES AND PUNISHMENTS) FOUNDED BY TBUMISSION ON SIR JAMES FITZJAMES STEPHEN'S DIGEST OF THE CRIMINAL LAW. BY GEOHaE WHEELOCK BURBIDaE, A.B., D.C.L. JUDGE OP THE BXCHEQUBR COURT OP CANADA. r - :^:; Toronto : - - : CARSWELL & CO., LAW PUBLISHERS, 1890. ?204- Entered, according to Act of the Parliament of Canada, in the year one thousand eight hundred and ninety, by George Whoelock Burbidge, at the Department of Agri- culture. MONTREAL: PRINTED BY THE GAZBTTB PRINTING COMPANY. 1890. PREFACE. This Digest is intended to be a statement of that part of the Criminal Law of Canada which relates to the definition of crimes and of the punishments prescribed therefor, as it stood on September 1st, 1889. The work is, by the kind permission of the author, founded on Sir James Fitzjames Stephen's Digest of the Criminal Law of England. The portions hereof that are taken from the latter work are enclosed in brackets [ ], and to enable the reader to distinguish such portions the more readily, and without turning backwards the leaf to which his attention is directed, the continuation of an extract beyond a page is indicated by the insertion of a bracket at the beginning of the page following. The index and the tables of cases and of the statutes have been prepared by Charles H. Masters, Esquire, Barrister-at-Law, assistant reporter of the Supreme Court of Canada, to whom I am also greatly indebted for assistance in the preparation of the Digest, and for reading the proofs and verifying the references to cases and authorities. Ottawa, January 2nd, 1890. TABLE OF CASES CITED. A. PAGE. Abbott, n.v 348 Abraham'a Case 311 Abrahams, R. v 343 Adams, U. v 2G5 Addis, R. V 303 Adey, R. 7J 526,527 Aickles'Case 389 .^ key's Case 220 Allen, R.t' 204,248,255 Allen and Others, R. v. 218, 223, 513, 522, 523 Alinon, R, V 2G5, 266 Anderson, in re 220 , R. ?' 222 Andrews r. Wilson .... 264 Antrobus, R. t» 112 Appleby, R. t' 10 ?•. Franklin . . . 149 Archer, H. v. . . . ■ . . 35 Ardley, R. r 346 Armory v. Dalamirie . . . 281 Armstrong, U. v. . . . . 372 Arscott, R. (' 188 V. Lilley 188 Asher v. Calcraft 160 Ashwell, R.V 296, 297 Aspinall, R. v 370 Atalaya, The 95 Atkinson, R. v 35 Att.-Gen. of Hongkong v. Kwok- a-sing 101 V. Baillie .... 12 V. Ranee tSurnonioye Possee 11 V. Stewart .... 10 t). Terry 173 PAGE. Att.-Gen. v. Windsor ... 2! 6 Avery, R. v 298 Austin, R. P. 472 B. Badger, R. » Ill Bail, R.V 391 Balls, R.V 298 Balme, R. v 115 Barnard, R. v 344 Barnes, R. v 11, 180 V. Ward 186 Barnett, R. v 241, 376 Barratt, R. v. 250 Barrett, R. v 174 Barronet, ex parte .... 39 , R.V. . . . . 200, 221 Barrow, R. v 248, 249 Bartlielemy, R. v 221 Bassett, R. v 187 Bateman, R. v 388 Battersby v. Odell .... 11 Batty, R.V 307 Buzeley's Case- . . . 279, 311 Beatson v. Skene 269 Beaumont, R. i; 309 Belch r. Arnott 196 Bembridge, R. v. . • 110, 112, 152 Bennett, R. v. . . . . 115, 211 Bennett's Case 204 Bentinck v. VVillink .... 10 Berriman, R. i;. . . . 160, 228 Berihiaume, R. v 297 Bertles, R. r 343 Bertram v. Bonham ... 73 Best, R. V. ...... . 150 VI. TABLE OF CASES CITED, I'AGK. Letts, R. r 173 Billiii^'lmm, K. v 200 Bisliop, R. r 41 Biswtdl, R. r 259 Blackstone, R. v 3J)2 Blailos V. Hifrirs . . . 287, 291 Blankard r. Galdy . . . . 0, 10 Rlenkinsop, R. v 1588 Boardman, R. i- 385 Boden, R. v 290 Borron, H. v 110 Boult, R. ?• 417 Boulton, R. !• 285 Bower, R. r 114 Boyall, R. r 115 Bradford, R. v 464 Bradlaiigh, R. v. . . . 163, 166 Bradehaw, B,. v 449 Brady, R. ?> 343 Brain, R. t- 209 Brawn and Webb, R. v. . . 255 Brice, R. r 185 Bridges, R. r 22 Bridgewater, The .... 196 Brien, R. r 343 Brierley, R. r 254 Brittain, R. v 185 Brodribb, H. v 69 Bromage v. Prosser .... 267 Brooks, R. V .35 Brown, R. v. . 226, 228, 230, 416 V. Harding .... 13 r. Mallett .... 186 Brownell, R. v 464 Bryan, R. i> 346 Bryans, R. « 449 Brydges, ex parte . . . 203, 236 Bubb, R.v 206 Buchanan, R. r 115 Buck, R.v 115 Buckmaster, 11. v 295 Buckner's Case 220 Bullock, R.V 467 V. Dodds .... 22 Bunce, R.v 295 I'AOB. Buncombe, R. r 35 Biinn, R. r 51 lUinting, R. r 51, 117 Burdell, R.v 11 Bunlett, R. v. . . . 93, 265, 266 Burgess, R. v. . 149, 224, 227, 299 Burgon, R. v 348 I'.urns, R. t' 69, 92 V. Nowell 39 Burrell, R.v 257 ]iurt r. Burt .... 253, 255 Burton, R.v 304, 308 Butterworlh, R. v 298 Byrne v. Boadle 204 Byron's (Lord) Case . 220, 221 C. Cabbage,=R. v 289 Q».(\hy , vx parte 388 Callahan, R.v 307 Campbell, R. r. . , . . . 343 V. Hall 10 Camplin, R.v 250 Capital and Counties Bank v. Henty 263 Carlile, R.v 274 Carlisle's Case 370 Carlisle, R. v 115 Carr, R. v 211, 263, 307 , r.'Fire Assur. Assoc. . 10 ,r. Hood 270 Carvill v. McLeod .... 264 Cartwright v. Green . 279, 292, 296, 297, 300, 532 Cary'sCase ,223 Case, R.V 241 Castlehaven's (Lord) Case . 249 Castro, R.v. . 27 Caswell, R.r 332 Chadwick, R. V. . . . 255,389 Chambers, R. v 400 Chandler, R. v. 261 Chapman, R.v. 312 Chapman's Case ..... 136 TABLE OF CASES CITED. vii PACE. Charost, R. v 305 Charlotto Smith, R. v. . . . L'0(i Cheafor, \i. v 287 Cheeseinan's Case .... 52 Child, R. V 71, 451 C'liipchase'a Case 310 ('liouinard, R. v 374 Cliri8tian, R. v 372 Clark V. Molyneux .... 268 Clarke's Case 288 Clarke, R. v. ... 188, 248, 249 V. Donnelly .... 182 Clarence, 11. v 231, 243 Clement, R. v 51 Closs, R. V 371, 392 Coggs V. Bernard 283 Cokely, R. r 73 Coley, li.v 305 Collin's Case 53 Collins, R. 1) 92, 389 Colonial Bank v. Warden . . 10 Coney and Others, R. v. . 43, 200 Connick v. Wilson .... 264 Connolly, R. i; 250 Cooke, R. V 280, 385 Cooper, R. v. . . . 45, 265, 374 Corby v. MacDaniel ... 11, 182 Corcoran, R. v. ..... 70 Corey, 11. v 343 Cornellier, R. v 124 Cornwall r. R 246 Cory, R. v 287 Coslet'sCase 282 Costin V. Chappell .... 12 Cott6, II. V 420 Cox, R. V 248 V. Lee 265 Coxhead v. Richards . . . 269 Craig, R. r 390 Cramp, H. v 252 Crawley, R.t; 184 Crawshaw, R. » 181 Cronan, R. v 241 Cronin, R. ■». 449 Cronmire, R. i" 372 I'AOB. Cronyn v. Griflith .... 11 Cronyn v. Widder ... 11, 182 Cruse, H. r 36, 44 Cnitchley, R. V 36 (Hiddy, R. v 221 CiiUuni, R. V 307,309 Cummings, R. v. . . . 311,339 Cunningham, R. r 401 ('urgerwen, R. v 254 Curry r. Walter 273 Curtley, R. V 43 Cutler V. Dixon 272 D. Daggett, R. V 160 Dale, R. i; 116 Daly, R. r 188 Danger, R. r 341 Dant, R. V 207 Davenport, R. v 294 Davie's Case 292 Davies, R. v 296, 297 D'Avigdor, R. r 149 Davis, R. V 115, 343, 527 Davison v. Duncan .... 272 Dawes v. Painter .... 10 Dawkins v. Lord Paulet . . 273 V. Lord Rokeby 272, 273 Dawson, R. v 101 Day, R. « 241 Deasy, R. v 55 De Banks, R. v 297 Debaun, ex parte . . . 392, 401 Debay, R. V. 254 De Berenger R. v 369 Dee, R. r 249 D'Eon, R. V 95 Delaval, R. v. . . . . 162, 167 Delegal v. Highley .... 274 Desmond and Others, R. v. 218, 513 Despatie, ex parte .... 1 88 Dessauer, R. v. 343 Dewitt, R. V 7 Dibdin-y. Bostock .... 270 Vlll TABLE OF CASES CITED. I'AOM. Dicks, K. r IJ.") I)illiii;jluim r. Wilson ... 10 Dillon, H. V {), 180 Dixon, K.r 184, ;$71 V. Holl 202 Diiunor. M(;Kenny .... 12 Doa.ls, li. V 182 Doe (1. l.T 10 21 21 Allen V. Murray . . Anderson r. Todd . Gilloapio r. VVixon . Grifliths v. Pritoh- ard Ilaninf^ton v. Mc- Fadden . . 10, 12, 13 Sheldon v. Itanisay 21 Dogherty, R. v 458 Doherty, H. v 35 Dolan, li. r 381 Donellan's Case 211 Doran r. Chambers .... 11 Doty, M.I' 133 Downea, 11. 7< 201 Downie, R. v 51 Drin},', R. v 381 l^nlmc, ex parte 240 Dud ley and Stephens, 11. v. . 37 Dnll'ey's Case 45 Dullicld, R. V 152 Dugal, R. V 214 Dui^'dale, R. v 52 Duniais v. Hall . . . . , 471 Duncan v. Thwaites. . . . 274 Dundas Election Case ... 11 Dunlop, R. V 184, 390 Dunn, II. V 390 Dunning, R. r. . . . • . 245 Dwyer, R. ?- 254 E. Eagleton, K v 52, 371 Eastalls Case 294 Eastwood V. McKenzie . . 21 Edwards, R. v 292 Eggington, R. v. 292 I'AdH Eirre, R. r 102 Elliott's Case .... 103, .".90 Ellis, U. V 102 Elsion, H. V 72 ICminens, v. Pottle .... 205 Eno, iri re 392 Enoch, R. « 209 Ensor, li.v 263 Errington's Case 217 Ksmonde, R. v 50 Evans's ( 'ase 345 Evans. R. r. . . . 213, 342, 400 Ewing, 11. V 295 F. Falkingham, R. r 202 Falkland Islands Co. r. R. . 10 Fallon, 11. r 49 Faneuf, U. v 196 Fanning, H. v 255 F'arrow, R. r 252 Foarraan, R. v 334 F'eatherstone, R. v 298 Fellowes, R. v 51 Fennoty, R. v 218 Fenton, R. ?- 219 Ferens, v. O'Brien .... 285 Ferrall, R. v 116 Ferrer's (Sir H.) Case 220, 525, 527 Ferris v. Irwin 305 Fick, R. r 249 Firth. R. v 285 Fi.-her, R. r 220 Fitch, R. r 298, 401 Flattery, R. v 248, 249 Fletcher, R. v 213, 377 ■ (C), R. V 250 (R), R. V. . . 248, 250 Flint, R.v 188 Flowers, R.v 296 Fontaine, R. v 254 Foott r. Bullock . . . . _. 11 Forbes r. Cochrane .... 9 Ford V. Wiley 477 TABLE OF CASES CITED. ix I'A(!K. Foster, R.V 34(i V. l-owier V2 Fonlkes, IL r :iO(5 Fournier, It. v 1581 Fox, K. V 129,171 Francis, \l, v -49 Fray 'h Case 521 Freeman ?'. Fairlie .... 10 Frbncli. R. t' 400 Fret well, K. r 45, 224 Friend's ( 'aao 261 Fulton r. James 180 a Gagnon, K. r 133 Gale, 11. r 309 Gallajiiier, R. v 55 Gardner, R. r 302, 348 ?•. Mansbridge . . 476 (jlarrott, R. r 302, 347 ?'. Roberts . . .11,150 Gatber(;ole, R. r. . . . 264, 205 (iaylor, \l. v 225 Geacb, R. r 385 Gemmell, R. !• 343 Geor, 390 Jones (Lloyd), R. v 312 (Valentine), R.v. . . 112 Joyce, R. v 401 Judd, R V 265 K. Kavanagh v. Phelan ... 10 Kay. R. t' 280 Kaylor, R. V 257 Kelly, R.V 42, 43, 70 V. Jonps 12 Kennedy v. Lyell 138 Kennett, R.v. 112 Kenrick R.v 370 Keyn, R. v. 94 Kielley v. Carson 10 Kilham, R.v 285, 347 King, R. f 312 Kinsman, R. v 9 Kipps. R.V 259 Kirkham, R. v. 223 TABLE OF CASES CITED. XI Kneesliaw v. Collier . L. P AGE. . 150 Labadie, R. v. , E. V. Labouchere, R. » Lackie, R. ?' Lake v. King Lambert, R. u and Perrj', R. r. . hamhsLnde, ex parte . . . . Lanjr V. Gilbert Lantz, R. V Lapier's Case Laprise. R. ?' La Society, etc., St. Louis v. Villeneuve Latimer, R. « Laurier, R, v Laws t'. Eltringham. . . . Lawley (Lady), R. v. ... LebaMif, R. r LeDante, R. r Leddington, R. v Ledger, R. v Lee's Case Lee, R. r Leggott's, R. V Leigh's Case Leith V. Willis Leonard, R. v Levasseiir, U. v. . . . 162, Le vet's Case Lewis, in re , R. V 226, r. Fermor V. Levy .... 273, Lister's Case .... Lister, R. v Livingstone v. Massey . Lloyd, R. V Lloyd Jones, R. v. . . Lock, R. r LoUey, R. v 451 340 263 340 271 312 92 392 264 243 282 242 182 231 267 476 139 297 230 51 212 345 342 196 302 10 133 163 40 241 369 477 274 184 312 149 133 312 241 254 PAGE. Longbottom, R. t' 212 Longstreetli, R. v 294 Lord Bishop of Na' al, in re 155, 162 Lord Mayor of London, R. r. 263 Lortie, R. v 217 Lovell, li.v 292 Lowenbruck, Ti. r 298 Lows V. Telford 73 Loydi'. Clark 11,182 Lymh, R. r 57,222 Lynn, R. t' 171 M. Mabbett, R. r 207 Magrath, R. r 57 Maher, R. v 238 Mahoney, R. v 389 Maillonx, R. ?' 38 Mankletow, R. r 259 Manley, R. r 43 Manning, R. v. ... 290, 451 Marcus, R. v 385 Marks v. Gilmour .... 12 Marriott, H. v 206 Marshall r. Piatt. ... 11, 182 Martin, R. v. . 9, 73, 133, 230, 250, 288, 321, 342, 389 Mason's Case 222 Mason, R. v. 115, 135, 150, 314, 323 Masters, R.r 280 Matheson, R. r 11 Mathews, R. V 113 Muwbey, R. v 135 Mawgridge, R. v. 222, 517, 525, 527 May, R. t' 305 Mayor of Lyons n East India Co 9 of S. John, R. r. . . 185 Mazagort;, R. r 385 Meadows, R. v 259 Mears, R. v 167 Mercer, R. r 11, 131 Merry v. Green 279, 296, 297, 300 Middleton. R. v. 280, 295, 290, 297 xu TABLE OF CASES CITED. PAOB. Millar v. Taylor 152 Miller, K. r 380 Millis, U. V -JOO Mills, 1{. r ;]48 Milnern Gilbert I'M Mitchell, K. I' 417 v. Defries .... 190 Moali, R. t' 312, 417 Mogul Steamship Company r. Macgregor 480 Mondelfct, K. v 258 Moodie, K. r 11, 131 Moody, R. ?) 401 Moore, R. v 40, 300 V. Moore 12 IMorby, 11. r 205 Morfit, R. ?• 111,290 Morgan, R. v 292 Morley's (Lord) Case . . . 221 Morrison, R. r. . . 243, 285, 401 Moss, R. V 349 Most, R. V 228 Moylan, R. v 207 Miicklow, R. V. ... 290, 297 Muk'ahy r. R 51,01 Mullany, R. ?• 135 Minister r. Lamb .... 272 jNIurpliy's Case 390 Mnrphy, R. r. . . . 131,177,308 r. Manning . . . 477 jNlurray, R. v 280, 311 Mutters (H), R. r. . . 180,298 Mc. jMacDaniel and Others, R. r. 215 Macdonald, R. v. 243, 297, 320, 400 M'Athey, R. r 381 Mc Adam r. Weaver. . . . 183 McCann, R, ?' 51 McDonald's Case 307 McDonald r. Cameron . . . 332 McDowell, R. v 222 INIcElderry, R. v 209 McElligott, R. I'. 241 PAGE. McFie, R. V 400 McGinnis, R. v 323 Mc( Jrath, R. v 292 McGregor, R. r 104 r. Thwaites ... 274 McGrowther, R. v 30 Mcintosh, R. v 133 McKale, R. r 294 McLaughlin, R. v 12 McMahon, R. t; 57 McNaghten's Case .... 40 McNevin, R. v 390 McPherson, R. v 53 McQuarrie, R. v 348 McQiiiggan, R. v 254 N. Nash, R. V 385, 380 Nasraith, R. v 238 Nay lor, R. v 349 Negus, R. r 305, 308 Nettleton, R. v 307 Newman, R. v. ... 207, 374 Newton, R. v 188 Norval, R. r 311 O. O'Brien v. R 56 OConnell r. R 92 Ogden, R.v 315 Okey, R.v Ill Oldham, R. ?• 319 Omichnnd v. Parker . . . 133 Oneby, R. r 223, 619 Opie R. V 152 Orchard, R. v 103 Organ, R. r 188 Osborne, R.v 204 Osmer, R. v. . 194, 220, 520, 527 Owen, R. r 32 Owens, R. t' 407 Oxenham, R. v 297 Oxford, R.v 34 TABLE OF CASES CITED. xiii P. PAGE- Packer, U. r !()•) Palmer, li. v 43 Paquet, E. v 250, 305 Parker, R. v. . . . 345, 401, 449 Parkes,R. r 389 Parkinson, U. v 342 Parsons r. Crabbe .... 110 Patterson, R. r 64 Pease, R.?' 173 Peltier, R. ?' 95 Penson, K. v 255 Perldns, R. v 200 Perry, R. r 229, 257, 381 Peters, II. v 300 Phelps, R. f 526, 527 Phetheon, R. r 303 Phillimore, v. Machon . . . 162 Pliillips, R. V. . . . 66, 249, 303 V. Eyre . . . 191, 192 Philpott's Case 135 Pliilpott, R. r 261 Pliipps, in re 391 Pich6, II. V 228 Pickup, U. V 343 Pierce, R. v 254 Pierson, F.. r 174 Pinckn-jy's Case 371 Pinney, R. r 112,192 Pitman, II. r 282 Plummer's Case 44 Pocock. R. I' 211 Pointon v. Hill 187 Poole, R. V 290 Pooley, R. t' 155 Portugal, R.v 372 Poulton, R. I' 209 Power V. Canniff 182 Poynton. H. v 282 Pratt, R. ;• 279, 302 Preston's Case . . . . 300,301 Preston, R. i' 390 Price, R. v 35, 115, 170 Prince, R. v. . . . 40, 259, 295 Proberts, R. v 184 pagh:. Procter v. Webster . . . . 269 Pym, R. ?• . . 212 E. Ran.lall, R. v 186, 348 Ransford, R. v 52 Jlaynes, U. v 28S Rea. 11. r 255 Read, R. ?• 249 Reed, R. r 39, 280, 536 Redford v. Birley .... 69 Redman, R. i' 314 Re d r. In<,'lis 11, 159 Reinon, R. v 188 Reopelle, R. u 401 Rice and Wilton, R. V. ... 174 Richards, R. r t?90 Richmond, H. v 406 Riel, R. V 11, 34, 55 Rigmaiden's Case .... 204 Riley, R. « 301 Ritson, R. r 388 Rinaldi. R. r- 403 Rin*:, R. r 152 Roherts's Case 52 Roberta, R.v 317 Robertson, R. v. . . . 315, 443 Robins, R.v 259, 280 Robinson, R. v. . 115, 342, 382 Robinson's Case 294 Robson, R. v 283, 297 Rosinski, R. v 241 Ross, R.v 134 Roume, ca. pnrte . . . . 10, 11 Rouverard, R. r 163 Row, R. r 10,11,133 Rowe, R.v 292, 300 Rowlands, R. v. . . . 152. 359 Rowley's Case 218 Roy, R. V 51 Rndsre R. t' 298 Runny, R. v 420 Russell, R. V. 45, 172, 173, 185, 186, 224, 449 XIV TABLE OF CASES CITED. PAGE. Rust, R. r 317 Ryalls V. Leader 273 Rylaiul, U.v 201 Rynial, li. v 7, 3-14, 34(5 Rymer, K. v 181 S. Sadi, R. V 382 Sainsb'iry, R. r 115 Salmon, R. v 45, 207 Saiuioval, R. v 9U Santos V. lUidge 107 Saunders' Case .... 47,211 Saunders, R. v. . . . 163,248 S(!hlesinger, R. v 135 Schmidt, R. v 3sl Schotield, R. i). • . . . . 51 Schold V. Kay 149 School, 11. V 57 Schram, 11. v 11, 95 Scott, R. V 7, 171, 238 v.R 7 V. Henderson ... 12 Scroggs, C.J., R.V 110 Seaman v. Netherclift . . . 272 Searing, R. v 286 Self, R.V 214 Sells r. Hoare 134 Sell is, R. V 209 Sern4, R. v 219 Shannon, R. v 243 Sharman, R. v 417 Sharp, R.V 9 Sharpe, R. v. . . . . . . 171 Shaw, R. V 174 Shepherd, R. v. ... 206, 329 Shepherd's Case 388 Sherlock, R. v. ..... 116 Sherman, R. v. ... 14, 63, 64 Sherwood, R. v 221 Shickle, R. r 287 Simon's Case 292 Simpson, R. v 282 Sissinghurst House Case . . 44 PAGE. Skeen, R. v 379 Siavin, R. r 57, 60 Smith, r/iH' 392 , R. r. 35, 73, 205, 238, 254, 298, 381, 382, 392, 401, 449, 467, 620 (Charlotte), R. r. . . 206 (J.), R. V 380 (Jolin), R.V 279 (L.). R. V 230 (W.), R. r 221 v.R 188 r. Midland Ry. Co. . 149 Smyth r. McDonald .... 12 Soares, R. r 43 Solev, R. V 70 Southerton, R. v. . . ' . . . 150 •Spencer, R. v 307 Squire, R. v 214 Stainer, R. i- 308 Stallion, R. v 449 Stanbro, ex parte 401 Stannard, R. v 174 Stfdman's Case 221 Steel, R.r 401 Steele v. Brannan 164 Stephenson, R. v 170 Stevene v. Sampson . . 271, 273 Stevenson, R. v 221 Stewart, R.r. . . . 170,297,391 St. George, R. v. . . 226, 227, 230 Stinson V. Pen nock .... 10 Stitt, R. i' 252 St. John Long, R. v. . 204, 208 St. Louis, R.V 341 Stockdale v. Hansard . . . 271 Stokes, R. r 34 Stowe, R.V 196 Stratton and Others, R. v. . 38 Sussex Peerage Case ... 63 Swindall, R. v 213 T. Tabart v. Tipper 270 TABLE OF CASES CITED. XV PAOB. Tiitlock, R. r .'574 Taylor, K. - ... 46, 53, 22-5 . r. McCulloiif,'!! ... 149 TluiUman's Case 1(53 Tliayer?'. II 369 Theal, II. r 214 v.li 214 Thomas, R. v. . . . 197, 223, 371 r. Piatt 134 Thoinpson, K. v 11, 298 (G.), R. v. . . . 280 (H.), R. v. . . . 280 '•. Farrer ... 38 V. Shackell ... 270 Thorpe, R. v 305, 309 Thurborn, R. r 300 Timinins, R. v 259 Tinning, \l. v 160 Tisdalo, R. r 110 Tite, 11. V 305, 307 Todd, II. V 385 V Hawkins 269 Tolfree, l\. v 298 Tollett, li.v 298 To. son, R. V 41, 254 Tomlinson, R. v 135 Tooley's Case 220, 525, 526, 527, 529 Topham, IX. v 263 Topping, R. V 253 Topple, W.v 305 Torpey, R. v 35 Toshack, R, v 417 Towers, R. v 214 Townley, R. v. . . 287, 291, 293 Train, U.v 172 Trainer, R. v 197 Trebiloock, R. v 303 Trilloe, R. v 209 Triqnet and Others v. Bath . 94 Tuff's Case 386 Tuke, R. r 401 Turner, R. y 40 Tweedy. R. r 297 Two Sisters 491 Tyree, R. i; 308 U. PAGE. Tyson, R. ?- 135 Uniaoke v. Dickson .... 10 United Kingdom Telegraph Cf.., R.v 172 United States ?•. Holmes . . 37 Uisill r. Hales 273 Van Bntchell, R. d 204 Vann, II. v 170 Vantandillo, R. r 184 Vaughan, R. v 10,117 Viilars r. Monsley .... 265 Vincent, R. v. . . . 69, 92, 280 Vint, li.v 95 W. Wager, R. v 213 Wakefield, R. r 257 Walker, R. v. . . . 115, 135, 307 Walker's Case 305 Walsh, R. r 282 Walsh's Case 302 Walte.s, R. ?'. . . . 218,220,221 Warburton, R. t) 370 Ward, R. u 417 Ward roper, R. f 35 Warner, R. v 321, 526 Warren, R. v 188 Wason, R. V 501 V. Walter 271 Watson, II. V 184, 348 Watts, R.t'. . . . 186,285,311 Weale, R. v 1 Webb's Case 163 Webb, R.v 290, 3.55 Webster, R. v. ... 166, 299 Weir, R. r 212 Welch, R.v 308 Welham, R. v 51, 506 Wellard, R. v 163 Welloch V. Constantine. . . 149 XVI TABLE OF CASES CITED. PACE. Wells V. Abraham . . . • 149 West, R. V [JOO, 3J5 White, II. V. . . . 262, 282, 285 r. Crisp 186 Whiteman, \i. v 469 Wigp;, R. r 115 Wild's Case 196 Wiley, R. V 380 Wilkes's Case 27 Wilkins, 1&. v 233 Wilkinson, R. v 299 Willes V. Bridger 505 Williams's Case 506 Williams, R. v. . . Ill, 241, 248 (Renwick), 'R.v. . . 27 V. Nunn .... 56 V. Stott 308 Williamson, R. v 204 Wilson, R. t). . . . 252, 310, 385 V. Jones 10 PAGK, Winnall.R. t' 312 Withers, R. r 220 Wollaston. R. v 242 Woodward, R. v 381 Wool ley's Case 345 \ bright, R. V. . 115, 209, 254, 310 Wyat, R. V 110, 112 Wynn's Case 289 Wynn, R. V 297 Y. Yeap Cheah Neo v. Ong Cheng Neo 10 Young, R. V 371 Z. Zuletta, R. V 107 ■>;'j; TABLE OF STATUTES CITED. L^NITED KINGDOM. 14 Majrna C'harta ?, Edw. 1, c. 9 :5 Edw. 1, c. 18 . ;•, Edw. 1, c. 25 . :3 Edw. 1, c. n-i . 13 Edw. 1, Stat. 4, 13 Edw. 1, c. 34 13 Edw. 1, c. 49 28 Edw. 1, c. 11 33 Edw. 1 . . 1 Edw. 2, St. 2 . 1 Edw. 3, St. 2, c 2 Edw. 3, c. 3 . 4 Edw. 3. c. 11 . 20 Edw. 3, c. 4 . 25 Edw. 3, St. 5, c 28 Edw. 3, c. 13 I Ric. 2, c. 4. . 5 Ric. 2, St. 1. c. 7 7 Ric. 2, c. 5 . 7 Ric. 2, c. 15 . 12 Ric. 2, c. 2 . 15 Ric. 2, c. 2 . 5 Hen. 4, c. 5 . 8 Hen. 6, c. 9 . II Hen. 7, c. 1 . 23 Hen. 8, c. 1, s. 3 24 Hen. 8, c. 12 27 Hen. 8, c. 10 27 Hen. 8, c. 16 28 Hen. 8. c. 15, s , s 31 Hen, 8, c. 1 . 32 Hen. 8, c. 9 . 33 Hen. 8, o. 9 . I'AGE. 149 1,38 507 9:5 . 162 248, 250 138, 507 . 507 . 138 . 143 . 138 . 79 . 138 138, 507 11, 54, 55, 57 58,59 . 11 138, 507 . 73 . 507 . 138 . 143 . 73 . 518 . 73 . 58 . 513 . 157 . 12 . 12 . 101 . 101 . 12 138, 507 . 509 PAGE. :53 Hen. 8, c. 20, s. 3 . . . . 21 3;; Hen. 8, c. ;59, s. 50 . . . 12 . 12 . 113 1 Edw. 6, c. 1 n 1 . 156 . 158 , 8. -I 2 & :; Edw. 6, c. 1 . 5 & 6 Edw. 6, c. 16 10, 131 1 . 131 11 > 1 Mary, c. 6. . . 1 Eliz. c. 2, s. 2 . 158 1 '-! . 157 . 59 13 Eliz., c. 2 . 13 Eliz., c. 5 . . 12 18 Eliz., c. 5. . 11 n i 139, 150 . . 150 . 12 , 0. 1 1 'i 27 Eliz., c. 4 . 31Eliz., c. 11 . . 73 43 Eliz., c. 6 . . 12 1 Ja. 1, c. 11 . . 254 1 Ja. 1, c. 12 . . 213 3 Ja. 1, c. 7 . . . 13 21 Ja. 1, c. 14 . . 12 21 Ja. 1, c. 15 . . 73 3Car. 2, 0.1. . . 157 13 Car. 2, stat. 2, c. 2 ,s. IC 1 . 13 14 Car. 2, c. 4, s. 20 .156, 157, 158 22 & 23 Car. 2, c. 9. . 12 29 Car, 2, c. 7 . . . . 160 1 W. &M.. sess. 2, c. 2. . 19 am. 18 ,pro 1 W. & M., c. 18, s. 15 . . 11, 159 7 & 8 Will. 3, c. 4 . . . . 11 9 Will. 3, c. 15 . . . . . 13 9 & 10 Will. 3, c. 35 . . 155, 156 9 «& 10 Will. 3, c. 7 7 . . 211 B xviii TABLE OF STATUTES CITED. 10 Will. ;',, c. 23 H. 1 11 & 12 Will. :{, c. 7, 8. -, 8S, 8, 2 & 3 Anne, c. 20, s. .'54 4 & 5 Anne, c. ',\, s. 20 5 Anne c. 14, s. 4 . . 7 Anne, c. 12, s. 15 . . 8. 4 . , 8. 6 7 Anne, c. 21, s. 10 . 1 Geo. 1, 8t. 2, c. 5 . , 88. 1 8 Geo. 1, c. 2, 88. 36, 37 8 Geo. 1, c. 24, s. 1 . , 8. 6 . ,9 Geo. 1, c. 19 . . . ,8.4. . 6 Geo. 2, c. 35 . . . , 8. 29 . 9 Geo. 2 c. 5, s. 4 . . 11 Geo. 2, c. 19, 8. 4 . 12 Geo. 2, c. 28 . . , 8. 3 . ,8.4 . , 8. 11 . 13 Geo. 2, c. 19 . . 14 Geo. 2, c. 17, p. 1 . 17 Geo. 2, c. 39, a 3 . 18 Geo. 2, c. 30 . . 18 Geo. 2, c. 34 . . 25 Geo. 2, c. 36, 8. 8 . 25 Geo. 2, c. 37, s. 9 . 12 Geo. 3, c. 11 . . , 8. 3 . 12 Geo. 3, c. 24, s. 1 . 14 Geo. 3, c. 83, s. 11 21Geo. 3, c. 49. . . , s. 1 . , 8. 2 . 27 Geo. 3, c. 1 . . . 28 Geo. 3, c. 49 . . 30 Geo. 3, c. 48 . . . 36 Geo. 3, c. 7, s. 1 . ,8.6 . PACIE. . 509 . 181 . 102 . io:{ . 45 . 57 . 13 . 39 . 94 . 94 . 94 22,23 . 192 2,5,8 71 . . 182 103, 104 105, 192 . 11 . 182 11 . 182 . 370 . 340 11, 509 182, 340 182, 340 183 11, 180, 509 . 13 . 23 . 102 180, 509 . 174 . 143 . 63 . 63 . 453 11 11 . 180 174, 181 . 11 . 11 . 59 54,55 . 54 1)7 Geo. :>, c. 70, s. 1 . 37 Geo. 3, c. 123 . . 39 Geo. 3, c. 37, 8. 1 . 39 Geo. 3, c. 79, S8. 1, 6 , 88. 8, 9 39 Geo. 3, c. 85 . . 39 & 40 Geo. 3, c. 93 . 42 Geo. 3, c. 119, s. 2. 49Geo. 3, c. 126 . . ,8.1 . , 8. 2 . , 8. 3 . , 88. 4, 5 52 Geo. 3, c. 104 . . , 8S. 1, 6 , 8. 2 . 52 Geo. 3, c. 143, 8. 6 52 Geo. 3, c. 155. s. 12 52 Geo. 3, c. 156, 88. 1, 53 Geo. 3, c. 127, 8. 1 , 8. 2 . , 8. 3 . 53 Geo. 3, c. 160 . . 54 Geo. 3, c. 145 . . 54 Geo. 3, c. 146 . . , 8. 1 . 56 Geo. 3, c. 138, s. 2 57 Geo. 3, c. 6 . . . 57 Geo. 3, e. 19, ss. 24, 25 , 8. 25 59 Geo. 3, c. 12. s. 7 . 59 Geo. 3, c. 09 . . 60 Geo. 3 & 1 Geo. 4, c. 1, 60 Geo. 3 & 1 Geo. 4, c 8 I Geo. 4, c. 90, s. 1 . 1 & 2 Geo. 4, c. 88, s. 1 5 Geo. 4, c. 83 . . . , 88. 3, 4 5 Geo. 4, c. 84, s. 22 . 5 Geo. 4, c. 113, s. 2 . , 8. 9 . , 8. 10 , 8. 11 TAliB. 63 308 88 101 !)0 88 90 311 23 181 10, 131 131 131 131 132 308 87 88 416 159 144 162 162 162 156 23 59 15 150 54 88 90 305 11,95 8.1 74 92 101 142 187 187 147 105 106 107, 108 . 108 TABLE OF STATUTES CITED. XIX 6 Geo. 4, c. 105, 8.10. . 7 & 8 Geo. 4, c. L'8, s. 5 . , s. 7 . , 8. 8 . , 8. 9 . ,H. 10 ,8. 11 , 8. VI , 8. l;J 7 & 8 Geo. 4, c. 29, 8. 44 7 8. 41 . 486 8. 42 . 247 8. 47 231, 243, 247 s. 48 . 250 8. 49 . . K57 8. 50 . . 250 s. 51 . . 251 8. 52 . 242, 251 H. 53 . . 256 8. 54 . . 257 8. 55 . . 258 8. 56 . . 259 8. 57 40,253 8. .58 . . 251 s. 59 . . 252 8. 60 . . 228 s. 61 . . 101 TABLE OF STATUTES CJTEP. XXIll 24&2r)Viot. c. lOO.s. <;2 . 1( . , B. 03 . • , 8. <>7 ,8. 70 . ,8. 71 . 25 & I'd Vict. c. 18, 8. 1 . 20 & 27 Vict. c. 44. 8. 1 . 20 & 27 Vict. c. I():t . . 28 & 2i) Vict. c. 12«}, 8. :{7 . 2!» A :'.() Vict. c. 100, 88. 25, 2(i 20 it ;i() Vict. c. 117, s. 14 . :;o it :il Vict. c. 119, 8S. 7 . ,8. 8 8. ;',0&:!1 Vict. c. 124,8. 11 ;50 & :U Vict. c. 128, 8. 12 •M & :]2 Vict. c. 24. . . :51 & :i2 Vict. c. l!7, 8. 4 ;51 & \V2 Vict. c. IKJ , 8. i :52 & :•.:•. Vict. c. 57, 8. 3 . ,8.4 . , 8. 5 . 32 &.r, Vict. c. 02,8. 13 . 32 & 33 Vict. c. ()8, 8. 4 . 33 «fe 34 Vict. c. 23 . . . . , 8. ;> ,8. 4 . 7 . 8 . , ss. 0-20 ,8. 31 . 33 & 34 Vict. c. 40 . . . 33 & :54 Vict. c. 65, 88. 2, 3 33 & :54 Vict, c 00 . . . .8. 4 . PAdB. 1,242 248 48,227 18 10 18 18 200 145 04 17 304 304 304 !) ;i05 50 407 :;8i .207,300, 381 200 3()8 307 3()8 350 133 .>4,508 24 I -.8. -,8. 6 7 -, 8. 8 , 8. 33 & 34 Vict. c. 90, s. 9 , 8. 10 24 24 25 25 25 59 133 151 05 90 90 00 90 97 90 90 3 24 1() ^> 4 5 8 10 33 & 34 Vict. c. 90, H. 11 , 8. 16 , 8. 31 X', & :!4 Vict. c. 03 . . 3;'. it 34 Vict. c. 98, s. 18 34it35 Vict. c. :'.1,8. 2 35 it 30 Vict. c. 19 . . 35 & 30 Vict. c. 3:5, 8. , 8. :io it :!7 Vict. c. 85, 8. I'.cS it 30 Vict. c. 24, H. 38 it 30 Vict. c. 25, 8. , 8. , 8. , 8. 38 it 39 Vict. (!. 63 . . 38 it 30 Vict. c. 86 . . , 8. 3 , 8. 4 , 8. 5 , 8. 7 ,8. 15 30 it 40 Vict. c. 30 . . , 8. 103 30 it 40 Vict. c. 80,8.4 41 & 42 Vict. c. 73 . . 43 it 44 Vict. c. 45 . . 44 it 45 Vict. c. 58, s. , 8. , a. 44 it 45 Vict. c. 00, 8. 45 it 40 Vict. c. 50, s. 45 it 46 Vict. c. 75 . , 8. , 8. 40 VicU c. 3, s. 2 . , 8. 3 . , ss. 4, 7 , 8. . 40 it 47 Vict. c. 51,e. ,8. . 8. 4. 153 156 2 . 23 • 12 10 48 & 49 Vict. c. 69, 8. . s. , 8, 1 2 2 3 4 l'A(iK. . 9«^ . 95 . 06 . 283 . 401 . 480 . 30 . 130 . 120 . 404 112,:!12 . 303 . 304 . 306 4 . 496 . 481 . 481 . 482 . 482 . 484 . 482 . 131 . 231 . 489 9 . 242 . 57 64 . 366 . 272 . 285 . 35 283, 298 283, 298 . 75 . 76 . 76 . 75 . 127 . 126 . 129 . 167 . 250 242, 249 XXIV TABLE OF STATUTES CITED. 48 & 40 Vict. c. G9, s. 6 , s. 7 ,s. 10 50 & 51 Vict. c. 25 . . 50 & 51 Vict. c. 28, s. 2 ss. 3, 5 PAGE. . . 1()6 . . 258 . . 167 . . 27 426, 427, 428 . 422 PAGE. 50 & 51 Vict. c. 28, ss. 4, 5 . 425 , gs. 6, 16 . 429 , s. 7 . . . 424 , s. 17 . . 427 , s. 18 . . 431 , s. 19 . . 430 , s. 20 . . 428 CANADIAN STATUTES. C. S. C. c. 52, s. 13 C. S. C. c. 06 . . , 8. 84 , s. 85 -, 8. 121 . -, 8. 152 . -, 8. 1515 . -, 8. 154 . -, 88. 158, 151) C. S. C. c. 68, 8. 68 C. S. C. c. 92 . . , , 8. 72 , C. S. U. C. c. 77,8.6, C. S. U. C. c. 104 . , C. S. L. C. c. 10, s. 1 , , 8. 2 , s. 3 , -, 8. 5 -, 8. 6 , s. 7 .8. 8 , 8.9 88, C. S. L. C. c. 23 . . 40 Geo. 3 (P. C.) c. 1 4 & 5 Vict. (P. C.) c. 26, s. 5 22 Vict. (P. C.) c. 32, p. 22 23 Vict. (P. C.) c. 29, 8. 4 . , 8. 5 . -,8. 6 24 Vict. (P. C.) c. 18, 8. 28 27 & 28 Vict. (P. C.) c. 18 . 27&28Vict. (P. C.)c.69. 29 Vict. (P. C.) c. 46 . . R. S. N. S. 3 Ser. c. 153, a. 9 • c. 159, 68. 2 PAGE. 418 463 463 463 418 463 463 463 115 245 323 320 51 160 87 88 87 87 89, 90 90 90 90 160 10 458 460 113 243 463 418 86 476 eo 116 • c. 160, s. 160 161 R. S. N. S. 3 Ser. c. 169, 8. 22 R. S. N. B. Vol. 1, c. 144, 8. 2 c. 145, 8. 2 , 8. 3 ^ c. 147, 8. , c. 158, 8. 12 Vict. (N, B.) c. 29 . . 19 Vict. (N. B.) c. 42, p. 5 . 27 Vict. (N. B.) c. 8, 8. 2 . R. S. B. C. No. 46 . . . c. 85, ss. 10, 11 20 Geo. 3 (P. E. I.)3Sess.c. 3 20 Vict. (P. E. I.) c. 10, 8. 5 24 Vict. (P. E. I.)c. 7.8. 10 24 Vict. (P. E.I.)c. 27,8.3 31 Vict. (P. E. I.) c. 14 . 32 & 33 Vict. c. 19, s. 42 32 & 33 Vict. c. 21, 8. 38 32 & 33 Vict. c. 29, S8. 55, 56 R. S. 0. (1877) e R. S. C. c. 1 . ,8 189. R. S. C. c. 5, R. S. C. c. 7, 7(13) 7 (28) 40. 65. -, 8. 67 R. S. C. c. 8 ', s. ■,s. •, 8. •, 8. 48. 70. 76. 77. -, 8. 78 . -,8. 79. -, 8. 80 . -, 8. 81 . -, 8. 82 . PAGE. 467 160 161 162 72 340 416 116 116 160 86 160 116 160 161 160 398 298 23 27 . 160 2 . 393 . 133 . 115 . 129 . 125 127, 128 . 128 . 128 82, 128 128, 247 82, 128 . 128 . 128 . 128 82, 128 92 XXVI CANADIAN STATUTES. R. S. C. c. 8, s. 83 . , 8. 84 . , 8. 85 . , 8. 86 . , 8. 87 . , 8. 88 . , 8. 89 . , 8. 90 . , 8. 100 , 8. 102 , 8. io;5 , 8. ICG , 8. 117 ,8. 118 R. S. C. c. 9, 88. 09-80 , 8. 82. R. S. C. r. 11,88.6, 7,8 R. S. C. c. 17,8.9. R. S. C. c. 29, 8. 69 , 8. 70 8. 72 R. S. C. c. 32, s. 210 , 8. 211 , 8. 212 , 8. 213 , s. 214 , 8. 219 , 8. 221 R. S. C. c. 34, 8. 91 , 8. 94 ,8.98 ,8.99 , 8. 100 , s. 113 , 8. 320 R. S. C. c. 35, 8. 2 (/) . (ft) (i) (i) {k) (0 (m) , 8. 79 . , 83. 79-85 8: TAGB. . SO, 128 25, 126, 127 120, 127 127, 128 120, 127 128 129 129 130 6, 474 129 128 127 128 128 128 271 435 120 121 149 418 418 334 83, 231, 244 45() . . 116 . . 113 122 . . 116 334, 418 . . 244 231, 244 . . 334 2, 498, 499 . . 418 . . 325 . . 325 . . 324 . . 326 . . 324 . . 325 . . 324 324, 32o . > iv24 ]{. S. i\ c. 35 R. S. V. c. 36, R. S. C. c. 37 R. S. C. c. 38 R. S. ('. c. 41 8.80 . 8. 81 . 8.82 . 8.83 . 8. 84 . 8. 85 . 8. 86 . 8.87 . 8.88 . 8. 89 . 8. 90 . 8.91 . 8.92 . 8. 93 . 8.94 . 8.95 . 8. 96 , 8.97 , 8. 98 , 8. 99 . 8. 100 , 8. 101 8. 102 8. 103 8. 104 . 8. 105 , 8. 107 . 8. 108 8. 110 88. 27, 88. 17, s. 55 s. 56 8. 57 8.58 8.61 8.62 8.63 8.56 8.82 8.94 8. 95 8.99 8. 106 s. 109 i24, 28 18 PAOB- . 324 324, 325 . 325 . 325 . 325 . 325 . 401 . 418 325, 41 g . 350 , 326 . 466 . 233 . 350 . 350 245, 467 . 466- . 466 245, 466 245, 46(> . 351 . 467 . 351 . 165 . 115 . 338 . 466 . 350 48,50 . 115 . 115 . iia . 243 . 236 . 236 . 233 . 465 . 245 . 338 . 65 . 351 351, 352 . 435 . 368 . 65 CANADIAN STATUTES. XXVlt R. S. r. c. 41 K. S. C. c. 43 R. S. C. c. 48 R. S. C. c. 45 R. S. ('. c. 50 R. S. C. c. 51 R. S. C. c. 53 R. S. C. c. 54, R. S. C. c. 58 R. S. C. c. 61 R. S. C. c. 62 R. S. C. c. 63 R. S. C. c. 64 R. S. C. c. 65 R. 8. C. c. 67 R. S. C. c. (58, R. S. C. c. 69, R. S. C. c. 71 ,8.112. . , ss. 23, 26. •, 6S. 94-105 ,8. 106. , 8. 107 . ,8. Ill . ,8. 112. , 8. 113 . , s. 18 . , 8. 22 . ■, 8. 23 . , 8. 24 . ,8. 11 . •, 8. 70 . , 88. 92-100 ,8.98 . , 8. 101 . , 8. 139 • , 8. 26 . , 8. 27 . , 88. 35, 43 ,8.41 . , s. 78 . , 8. 79 . , 8. 137 . , 8. 138 . ,8.15 . ,8.54 . ,8.55 . , 8. 56 . ,8.28 . , 8. 29 . , 8. 17 . ,8.31 . ,8.32 . .8. 7 . ,8.37 . •. 8. 38 . •, 88. 39, 42 , 8. 18 . , 8. 19 . , 8. 20 . , 8. 11 . , 88. 3(5, 37, , 8. 8 . . PACE. 351, 435 27,32 47G 86 169 169 73 51 83 113 339 369 65 13 15 86 116 83 361 26 15 86 116 469 476 245 471 113 431 432 418 419 435 426 432 433 433 168 168 168 133 245 115 115 38 . 245 492 n. .S. C. c. 73 R. S. ( '. c. 74 R. S. C. c. 74 R. S. C. c. 75 R. S. C. c. 77, R. S. C. c. 78; R. S. C. c. 79 R. S. C\ c. 80, R. S. C. c. 81 R. S. C. c. 89 R. S. C. c. 91 R. S. C. c. 94 R. S. C. c. 95. R. S. C. c. 99 R. S. C. c. 101 R. S. C. c. 102 R. S. C. c. 103, R.S. C.C.104 R. S. C. c. IOC PA(iB. s. 16 . . . 419 a. 34 . . . . 419 8. 65 . . . 487 e. 66 . 487, 488 s. 67 . . . 489 8.87 . . 77, 189 8.90 . . . 494 8. 91 . 491, 492 8. 114 . . . 487 8. 124 . . . 243 s. 8 . . . . 419 8. 17 . . . . 494 8. 18 . . . . 492 8. 43 . . . . 243 s. 14 . . . 233 88.51,52 . . 491 88. 10, 11 . . . 494 s. 56 , . . . 419 8. 74 . . . 494 8. 2 . . 237, 336 SH. 6, 22 . . 245 8. 27 . . . . 353 8.34 . . . 354 8.35 . . . 354 8. 36 236, r 536,352,462 s. 37 . 1 J45,353, 462 8.5 . . . 113 ss. 1-6 . . . 186 s. 7 . . . . 186 8.4 . . . 245 88. 15, 21 . . 462 8.21 . . . 328 8.69 . . . . 419 8.41 . . . . 419 s. 45 . 321, 401 8.26 . . . 419 s. 39 . . . . 245 8.40 . . . . 419 8.41 . . . . 461 8.31 . . 419, 420 8.46 . . . . 246 ss. 64-68 . . . 128 8.(58 . . . . 82 8.(59 . . . . 247 s. 70 . . . . 82 xxviii CANADIAN STATUTES. PACiE. E.S.C.C. 106,8. 71 . . . , 8. 73 . . . . 128 82, 128 , 8. 74 . . . 11. S. C. c. 106, s. 75 . . . 86 125, 127 125, 127 127, 128 . 127 126, 127 « nn , 8. 1 1 . ■ , 8. /o . , s. 79 . . , 8. 82 . . . . - . a W . 129 . 129 . 130 82, 127 . 86 . CI Rt _ n 4>f> ■ - ) S. i'U . n 00 ■n ^M . .. .. . a 1 "0 . 150 . 139 . 499 — u 1 '^1 E. S. C. c. 107 . . . . n '^ .496,497 , D. _ . . .498,499 .- .. rt Ifi . . 498 . 498 . 498 . 499 . 500 . 500 498, 499 .. . . « 17 '• ■, 8. — . . , H. -" . . n "i . 8. -1 . , a. -0 . . a 90 . 9fVi . 498 . 498 K. S. C. c. 108 ... . n 1 '"' . 420 . 420 E. S. C. c. 109 . . . . E. S. C. c. 118. 8. 28 . . . . 420 E. S. C. c. 119, s. 45 . . . . 420 E. S. C. c. 120, s. 53 . . . 358, 375 o SI .372,420 . 338, 420 E.S.r.c. 121, s. 19 . . n "ft . . 436 . 338, 420 E. S. C. c. 122, 8. 32 . . n T^ . 436 . 421 E. S. C. c. 123, 8. 14 . . Q '^(\ . . 436 . . 421 E. S. C. c. 128, 8. 7 . . E. S. C. c. 129, 8. 95 . . . . 421 E. S.C.C.131, 8. 12 . . . . 378 . . 484 . . 480 , S. -1 . . . 8. 22 . . R. S. S. c. 134 E. S. C. c. 141 E. S. C. c. 144 E. S. C. c. 145 E. S. C. c. 146 E. S. C. c. 147 E. S. C. c. 148 ss. 3, 4 8. 1 8. 1 s. 2 s. 1 8.2 8.3 8.4 8.5 8. (> 8. 7 8. 8 88. i, 9 8.2 8.3 8.4 8.5 8.6 8'. 7 s. 8 H. 9 s. 1 88. 1-3 8. 2 8. 4 8.5 8.6 8.8 8. 9 s. 10 8. 11 8. 12 8.13 8. 14 8. 1 8. 2 8.3 8.4 8.5 8.6 8.8 8.9 8. 10 54, PAGE. Ill 138 11 13 48 48 48 49 49 49 50 50 54 54 57 60 61 61 56 56 56 55,56 71 71 192 71 74 74 74 74 72 72 69 70 70 68 77 77 77 78 78 78 79 79 77 80 CANADIAN STATUTES. XXIX R. S. C. c. 149 R. S. C. c. 150 11. S. C. c. 151 R. S. C. c. 152 R. S. C. c. 153 R. S. C. c. 154 R.S.C.C. 155 8. 1 s. 2 8.4 8. G 8. 2 8.3 8.4 8. 5 s. 14 s. 1 8.5 8.0 s. 13 8.14 8. 15 s. 21 8. 1 8.4 8. 5 s. G 8. 1 s. 2 s. 3 8.4 8.5 8.9 8.1 8.2 8.3 s. 5 8.1 8.2 s. 3 8.4 1.5 s. 6 8.7 8.8 PAGE. 80 80 80 80 80 75 57 75 7G 7() 14 8G 84, 85 84 84 85 85 85 84, 85 80 80 24G 81 81 6G GG GG G7 G7 G7 G8 13G 13G 14, 13G 137 134 142 142, 143 144 145 145 145 145 146 145 R. S. C. c. 155, 8. R. S. C. c. 15G R. S. C. c. 157 -, s. 8. 145 R. S. C. c. 158 R. S. C. c. 159 R. S. C. c. IGO, R. S. C. c. 161 R. S. C. c. 162 9 10 ll 1 2 3 4 5 6(3) 7 8 4 6 7 8 1 o 3 4 5 6 7 8 9 1 o 8. 8. 8. 8. 8. 8. 8. S. 8. 8. 8. 8. S. 8. s. 3 s. 6 8.1 8.2 8. 3 8.4 8.1 8.2 s. 3 8.4 8.5 s. 8 88. 8-1 s. 9 s. 10 PAGE. 146 147 147 1.59 161 161 161, 242 165 166 166 165 167 187 175 175 177 178 175 183 182 182 182 182 182 183 183 179 178 178 178 178 255 256 256 40, 253 226 226 225 227 2:^7 225 226 226 227 227 XXX CANADIAN STATUTES. K. S. C. c. 102 R. S. C. c. 163 8.11 . s. 12 . 8.13 . 8.14 . 8.15 . s. 1(> . 8.17 . 8.18 . 8. 19 . 8. 20 . 8.21 . 8.22 . 8.23 . 8. 24 . 8.25 . s. 2(3 . 8. 27 . 8.28 . 8. 29 . 8.30 . 8.31 . 8.32 . 8.33 . 8.34 . 8.35 . 8.36 . 8.37 . 8.38 . 8. 39 . 8.40 . 8.41 . 8.42 . 8.43 . s. 44 . 8.45 . 8.46 . B.47 . 8.48 . 8. 49 . • • • 8. 1 . 8. 2 . 8. 3 . s. 4 . 8. 5 . PAOE. 220, 227 227 230 230 232 232 232 233 238 261 233 234 234 234 235 235 236 236 237 237 238 238 239 243 243 247 250 242 250 251 242,251 256 257 258 259 246 251 252 228 274 274 275 275 267 266 K. S. C. c. 1(53, R. S. C. c. 164 8. 6 8. 7 8. 8 8. 2 149, 8. 4 s. 5 . 320, 330, 331 8. 6 8. 7 s. 8 8. 9 8. 10 8. 11 8. 12 8. 13 8. 14 s. 15 8. 16 8. 17 8. 18 8. 19 8. 20 8. 21 8. 22 8. 23 8. 24 8. 25 8. 26 8. 27 8. 28 8. 29 8. 30 8. 31 8. 32 8. 33 8. 34 8. 35 8. 36 8. 37 8. 38 s. 39 s. 40 8. 41 4. PAGE. . 271 . 271 . 271 . 297 316, 321 322, 327 . 297 328, 329 332, 354 . 320 . 327 . 327 286, 327 . 328 . 328 . 321 . 322 149, 322 . 323 . 326 . 329 . 329 . 330 329, 330 . 331 . 332 . 332 . 333 . 333 . 355 . 355 . 355 . 356 . 334 . 354 313,334 . 313 . 313 317,318 . 316 317,318 . 317 . 318 . 318 . 318 CANADIAN STATUTES. XXXI R. S. C. c. 164, 8. 42 8. 43 s. 44 P. 45 8. 46 8. 47 8. 48 8. 49 8. 50 8. 51 8. 52 8. 53 8. 54 s. 55 8. 56 8. 57 8. 58 8. 59 . 8. 60 . 8. 61 . 8. 62 . 8. 63 , 8. 64 8. 65 . B. 66 8. 67 8. 68 B- 69 8. 70 8. 71 8. 72 8. 73 8. 74 8. 75 8. 76 8. 77 8. 78 8. 79 8. 80 8 81 8. 82 8. 83 8. 84 s. 85 I'AOB. I . 318 . 319 . 319 . 336 . 335 . 335 . 335 . 336 . 334 . 337 305, 311, 337 . 338 . 338 149, bC9 326 340 297, 298, 306 381 , 339 372,373 , 373 . 374 , 375, 376 375, 376 . 376 . 378 . 378 . 378 . 378 . 378 339,379 149, 339 . 356 . 357 . 358 . 358 341, 347, 350 . 341 . 350 . 349 . 349 . 381 . 382 . 382 , 288, 320 It. S. C. c. 164 R. S. C. c. 165 8. 86 8. 87 8. 88 8. «9 8. 90 8. 91 8. 92 8. 93 s. 94 8. 95 8. 96 8. 97 8. 98 8. 1 8.2 8.3 8.4 8.5 8.6 8. 7 8.8 8.9 s. 10 8.11 8.12 8.13 8.14 8.15 8.16 8.17 8.18 8.19 8.20 8.21 8.22 8.23 p. 24 8.25 8.26 8.27 8.28 8.29 8.30 8.31 PAGE. . 321 . 331 . 340 . 150 . 151 149, 360 . 362 . 362 . 362 149, 362 . 360 149,362 . 337 384, 400 . 393 4 . 384 . 393 . 394 . 408 . 405 . 395 . 395 . 396 . S96 . 397 . 399 . 414 , 414, 415 . 415 . 401 . 400 . 411 . 411 . 413 . 412 . 412 . 411 . 403 . 400 . 400 . 400 . 400 . 409 . 409 xxxu CANADIAN STATUTES. R. S. C. c. 1G5, s. 32 , 8. 33 , s. 34 , 8. 35 , H. 3() , s. 37 , H. 38 , 8. 39 , s. 40 , s. 41 , a. 42 , 8. 43 , 8. 44 , s. 45 . 8. 46 , 8. 47 , 8. 48 , 8. 49 , 8. 50 R. S. C. c. 166 R. S. C. c. 167 8. 1 s. 2 8. 3 8.4 8.5 8.6 8.7 8.8 8.9 8. 10 8.11 s. 12 8. 13 8. 14 8. 15 8. 16 8. 17 8.18 8.19 8. 20 s. 21 8.22 8.23 8.24 ;8, PAGE. . 402 . 409 . 406 . 406 . 406 . 407 . 404 . 405 . 405 . 408 . 408 397, 398 . 398 . 410 . 416 . 400 . 400 . 400 . 416 . 422 . 437 . 437 4 . 438 . 438 . 441 . 442 . 439 . 439 . 439 . 443 . 443 . 443 . 444 . 443 439, 441 . 443 . 442 . 444 . 445 . 445 . 445 . 445 . 445 . 440 R. S. r. c. 167, R. S. C. c. 168 I'AOE. 8. 25 . . . 441 8. 26 . . . . 441 8. 27 . . . . 446 8. 28 . . . . 439 8. 33 . . . . 444 .... . . 449 s. 1 . . . . 3 8. 2 . . . . 449 8. :•. . . . . 449 8. 4 . . . . 449 s. 5 . . . . 450 8. 6 . . . . 453 8. 7 . . . . 450 S. 8 ; . . . 450 8. 9 . . . . 451 8. 10 . . . . 452 8. 11 . . . . 451 8. 12 . . . . 451 s. 13 . . . 456 8. 14 . . 457, 458 s. 15 . . . . 475 8. 16 . . 457, 458 8. 17 . . . . 458 s. 18 . . . 451 8. 19 . . . . 450 8. 20 . . . 452 s. 21 . . . 469 s. 22 . , . 469 8. 23 . . . 469 8. 24 . . . . 470 8. 25 . . . 470 8. 26 . . . . 471 8. 27 . . . 472 8. 28 . . . 450 8. 29 . . . . 452 8. 30 . . . . 458 8. 31 . . . . 459 8. 32 . . . 460 s. 33 . . . 460 s. 34 . . . . 462 s. 35 . . . . 461 8. 36 . . . . 473 8. 37 . . . . 463 s. 38 . . . . 463 s. 39 . . . . 464 CANADIAN STATUTES, XXXXll . I'AOE. ,8.4 . . . . 314 8. f) . . . . 314 8. 6 . . . . 315 8. 7 . . . . 227 8. 8 . . . 453, 468 8. 9 . . . . 486 8. 10 . . . . 486 8. 12 . . . . 484 8. 13 . . . . 481 8. 14 . . . . 487 8. 15 . . . . 482 8. 16 . . . . 483 8. 17 . . . . 483 8. 18 . . . . 482 8. 19 . . . . 483 8. 20 . . . . 118 s. 21 . . . . 118 s. 22 . . . . 119 8.23 . . . . 119 8. 24 . . . . 118 s. 25 . . . . 115 s. 26 . 26 139, 370 s. 27 . . . . 359 8. 28 . . . . 359 s. 29 . . . . 113 8. 30 . . 124, 125 8. 31 . . . . 150 8. 2 . . . 1,2 8. 8 . . 9, 102 ss. 30-50 . . 273 ss. 57-91 . . 273 B. 183 . . . 242 s. 187 . . . . 22 8. 226 . . . 248 8S. 3-11 . . 188 ss. 10-11 . . . 26 88. 14-15 . . 27 88. 4, 10, 11 2 8. 5 . . . 1 8.1 . . . . 431 8. 1 . . . . 14 8.2 . . . . 14 8.3 . . . . 14 8. 4-22 . . . 15 8.5 . . . 15,59 8. 6 . . . 15, 225 R. S. C. c. 108 E. S. C. c. 169 R. S. C. c. 171 R. S. C. c. 172 R. S. C. c. 173 PACIE. 8. 40 . . . . 465 8. 41 . . . . 466 8.42 . 1 49, 454, 47:5 8. 43 . . . . 4G7 8.44 . . . . 467 8.45 . . . . 468 8. 46 . . . . 4.54 8.47 . . . . 454 8.48 . . . . 454 8.49 . . . . 455 8. 50 . . . . 4.55 8.51 . . . . 455 8.52 . . . . 455 8.53 . . . . 455 8.54 . . . . 461 s. 55 . . . . 474 8.56 . . . . 471 8.57 . . . . 472 8. 58 . . 4(17, 475 8.59 . . .47.5,476 8. GO . . . . 449 s. 01 . . . . 449 8. 1 . . . . 64 s. 2 . . . . 366 s. 3 . . . . 367 8.4 14, 64, 360, 367 8. 7 . . . 64 s. 1 . 367, 368 8.2 . . . 367 8. 3 . . 4, 368 8. 4 . . . . 14 8. 1 . O 8. 2 . . . . 477 s. 3 . . . . 477 8. 6 . . . . 477 s. 8 . . . . 478 8. 9 . . . . 478 8. 10 . . . . 478 8. 11 . . , . 478 s. 12 . . . . 479 8. 13 . . . . 478 8. 14 . . . . 149 s. 1 . . . . 314 8. 2 . . . . 315 8. 3 . . 314, 315 R. 8. C.c. 173, 8. 4 R. S. C. c. 174 R.S.C. C.176 R. S. C. c. 177 R. S.C.C.178 R. S. C. c. 180 R. S. C. c. 181 XXXIV CANADFAN STATUTES. R. S. C. c. 181, 8. 10 8.18 8. 19 8.24 li. S. C. c. 1«2 R.S.C.C.183 8.25 . 8. 20 . 8.27 . 8.28 . 8.29 . 8.30 . 8. 31 . 8.32 . 8.33 . 8.34 . 8.35 . s. 30 . 8.37 . 8.38 . 8. 39 . 8.40 . 8.41 . 8.42 . 8.50 . S8. 25-58 88. 61-74 8.6 . 66. . R. S. C. c. 184 43 Vict. c. 28,8 45 Vict. (Ont.) c. 9 50 Vict. (Man.)c. 22 50 & 51 Vict. c. 25 50 & 51 Vict. c. 33, es. 3, ^ ,8. 10 , s. 11 50 & 51 Vict. c. 45, s. 2 ,8.4 , 8. 5 , s. 6 ,8.7 , 3. 8 , 8. 9 , 8. 11 , 8. 12 . 8. 14 50 & 51 Vict. c. 46, 8. 1 TAGH. . . 59 . . 16 . . 139 26, 105, 143 144 26 16 27 10,17 17 18 19 20 19 15 22 23 23 29 29 30 30 31 244 17 17 113 334 272 272 27 470 86 109 ,364 363 364 364 364 364 365 365 365 14 80 50 & 51 Vict. c. 47, a. 1 , 8. 2 50&D1 Vict. (.48,88.1,0 ,8. :; 50 it 51 Vict. c. 49, 8. 1 51 Vict. c. 11, 8. 13 . 51 Vict. c. 1 51 Vict. c. 19 51 Vict. c. 22 51 Vict. c. 29 51 Vict. c. 31 51 Vict. c. 3 51 Vict. c. 34 51 Vict. c. 40 51 Vict. c. 41 51 Vict. c. 42 51 Vict. c. 47 8. 2 . 8. 18 . 8. 4 . 8.30 . 8. 253 . 8. 280 . 8. 291 . 8. 292 . 8. 293 . 8. 294 . 8. 290 . 8. 297 . 8. 301 . 8.4 . 8.6 . 8. 10 . 8.1 . 8.7 . 88. 1, 2 88. 2, 3 8.3 8.4 8.5 8.6 8.7 8.8 8.11 8. 17 8. 18 8. 19 8.20 s. 21 8.22 88. 1, 8. 1 s. 1 8.2 PAGB. . 399 . 415 . 1()5 . 166 . 480 . 128 . 435 . 86 . 86 . 245 . 233 . 113 . 23(5 . 236 . 86 . 115 . 115 . 465 . 420 . 465 . 245 14 . 13 • ^ . 447 . 448 . 422 . 422 , 425 . 425 . 429 426,427 . 428 . 428 . 424 . 42b . 427 . 431 149, 430 . 428 428. 429 . 176 . 177 17 . 20 CANADTA N ST A T UTES. XXXV , 52 Vict. c. 22, 88. 3 . 52 Vict. c. 25, S8. 3, 4 52 Vict. c. 20, 8. 11 52 Vict. c. 41, 8. 1 , 8. 6 62 Vict. c. 42 . . 62 Vict. c. 43 . . PAGE. . 490 . (15 . 352 . 481 . 480 , 12:5 . 501 52 Vict. c. 43, 8. 1 , 8. 2 , e. 3 ,8.4 , 8. 7 52 Vict. c. 44 . . 52 Vict. c. 45, 8. 6 I-AGB. 501 501 501 501 501 27 2 LIST OF AIVBUKVIATIONS. The expression "Draft Code" ineanis the Draft Code appended to th& Report of the Crlniiiial Code Conunission pnblisliod in 1871), and marked C. l.':'.45. The Canadian Statutes cited are designated by the letters D., P.C., etc., which are explained in the followinoug. I)ouglas. • . Ea. East's Reports. Ea.st, P.C. East's rioas of the Crown. E. &. B. . Ellis & niackburn. E. B.&E. Ellis, Blackburn & Ellis. Esp. Espinasse. ICx. Exchequer (Law Reports). Ex. J ). . Exchequer Division. F. & F. . Foster & Finlayson. Forsyth Con. Taw Forsyth's Constitutional Law. Foster . Foster's Crown Cases. G. &0. . Geldert & Oxley's Reports, Nova Scotia. Gen. View Cr. L. Stephen's General View of the Criminal Law. Gr. . . Grant's Chancery Reports, Ontario. H. & C. . Hurlstone and Coltman. H. & N. . Hurlt^tone and Norman. H. E. C. . Hodgins' Election Cases, Ontario. H. L. r. . House of Lords Cases. Hale, P.C. . Hale's Pleas of the Crown. Han. Hannay's New Brunswick Reports, Hawk. P.C. . Hawkins's Pleas of the Crown (Curwood's edition) Hist. Cr. Law . Stephen's History of the Criminal Law. Inst. Coke's Institutes. Ir. C. L. R. . Irish Common Law Reports. XXXVlll 1 jltST Ur AtSHUE VlATWJSiS. Keb. . Keble's Reports. Kel. Kelyng. , v'? '■,' L. &C. . Leigh and Cave's Crown Cases. L. C.J. . Lower Canada Jurist L. C. L. J. Lower Canada Law Journal. L. C. R. . . . Lower Canada Reports. L. J. (M.C.) . Law Journal, Magistrates' Cases. L. J. (Q.B.) . . Law Journal, Queen's Bench. L. N. . Legal News, P.Q. Li. R. C C. R. . Law Reports, Crown Cases Reserved. L. R. C. P. . . Law Reports, Common Pleas. L. R. H. L. . Law Reports, English and Irish Appeals. L. R. P. C. . Law Reports, Privy Council. L. R. Q. B. . Law Reports, Queen's Bench. L. T. (N.S.) . Law Times, New Series. Ld. Raym. Lord Raymond. Lew. Le win's Crown Cases. M. & M. Moody and Malkin. ., . M. & Rob. . Moody and Robinson. ^ \ M. &. S. Maule and Selywn. , M. &. W. Messon and Welsby. M. L. R. Montreal Law Reports, Queen Bench. Man. L. R. . Manitoba Law Reports. Mer. Merivale. Mod. Modern Reports. Moo. Moody's C'rown Cases. Moo. & R. Moody & Robinson. Moo. Ind. App. Moore's Indian Appeals. Moo. RCC. . Moore's Privy Council Cases. N. B. R. . New Brunswick Reports. N. S. R. . Nova Scotia Reports. 0. R. . Ontario Reports. Old. . . < » Oldwright's Reports, Nova Scotia. Ont. App. R. . Ontario Appeal Reports. Ont. Dig. • . Robinson & Joseph's Ontario Digest. Ont. P. R. Ontario Practice Reports. P. &B. . Pugsley & Burbidge's Reports, New Brunswick. P. D. . Probate Division (Law Reports.) P. Wm. . Peere Williams. Paley Sum. Con. Paley on Summary Conviction. Plowd. . Plowden. Pugs. Pugsley's Reports, New Brunswick. LIST OF ABBREVIATIONS. XXXIX Q. B. . Q. B. D. . Q. L. K. . R. & C. . R. &. G. . R. &. M. R. «fc E. . R. L. . R. S. C. . R. S. B. C. R. S. N. B. R. S. N. S. Rep. C. L. C. W. Rob. Roscoe, Cr. Ev Russ. Cr. S. D. Salk. Sra. L. a Starkie, N. Steph. Com. Stev. Dig. St. Tr. . Str. T. R. . Tasch.Can. Cr. Acts Taunt. . Tyrw. U. C. C. P. U. C. 0. S. U.C.Q.B. Ves. Viner's Abt. W. Bl. . Wall. Jr. Wms. Saun. . Queen's Bench Reports. Queen's Bench Division. Quebec Law Reports. Russell & Chesley's Reports, Nova Scotia. Russell & Geldert's Reports, Nova Scotia. Ryan & Moody. Russell and Ryan. Revue Legale, P. Q. Revised Statutes of Canada. Revised Statutes of British Columbia. Revised Statutes of New Brunswick. Revised Statutes of Nova Scotia. Report of the Criminal Law Commission. W. Robinson's Admiralty Reports. Roscoe's Criminal Evidence, 10th ed. Russell on Crimes, 5th edition. 4th edition in Appendix. Stephen's Digest of Criminal Law. Salkeld's Reports. Smith's Leadinr Cases, 9th edition. Starkie's Nisi Prius Reports. Stephen's Commentaries. Steven's Digest of New Brunswick Reports. State Trials. Strange's Reports. Term Reports. Taschereau's Canadian Criminal Acts, 2nd edition. Taunton's Reports. Tyrwhitt. Upper Canada Common Pleas. Upper Canada Reports, Old Series. Upper Canada Queen's Bench. Vesey's Reports. Viner's Abridgment. William Blackstone's Reports. Wallace Junior's United States Circuit Court Reports. William's Saunders Reports. CONTENTS. PART ' PAGE I. I'RELIMINARY • 1 II. Offences against Pur.Lic Order— Internal and External . 54 III. Abushjs and Obstructions of Public Authority .... 109 IV. Acts injurious to t:ie Public in General 152 V. Offences against tub Person, the Conjugal and Parental Eights, and the Reputation of Individuals . . . 190 VI. Offences against Rights op Property and Rights arising out of Contracts 276 PAET I. PRELTMIIS^AEY, Explanation of Terms . " . . . . . , . . 1 CHAPTER I > OF THE APPLICATION OF THE CRIMINAL LAW. art. page 1. Application of the Criminal Law 9 2. Application of the Law of England 9 CHAPTER II. OF PUNISHMENTS. 3. Punishment after Conviction only 14 4. Discretion of the Court . .14 5. Offender punishable under two or more Provisions ... 14 6. Enumeration of Punishments 15 7. Punishment of Death _ . .15 8. Punishment of Imprisonment 15 9. Hard Labor 10 10. Reformatories 17 11. Whipping 18 CONTENTS. xli ART. PAGE 12. Fine 19 13. Putting under Recognizances 19 CHAPTER III. CLASSIFICATION OF CRTMES AND GENERAL PROVISIONS AS TO THEIR PUNISHMENT— PARDONS dc 14. Treason, Felony and Misdemeanor 21 15. Consequences of a Conviction of Treason or Felony in certain Provinces 21 16. Consequences of a Conviction of Treason or Felony in Manitoba and the North- West Territories 24 17. Imprisonment where there is no Express Provision ... 26 18. Previous Convictions 26 10. Cumulative Punishments . .27 20. Conditional Release of first Offenders 27 21. Pardons 29 22. Commutation of Sentence 30 2?u Undergoing Sentence equivalent to a Pardon .... 30 CH AFTER IV. GENERAL EXCEPTIONS. 24. Definition subject to exceptions 32 25. Children under Seven 32 26. Children between Seven and Fourteen 32 27. Insanity 32 28. Presumption of Sanity 34 29. Drunkenness 34 30. Married Women 35 31. Compulsion 36 32. Necessity . 36 33. Ignorance of Law 38 o4. Ignorance of Fact 39 CHAPTER Y. PARTIES TO THE COMMISSION OF CRIME— PRINCIPAL AND ACCESSORY. 3o. Principals in First Degree . . . . . . . .42 36. Innocent Agent • . 42 37. Principals in the Second Degree 48 38. Common Purpose . . . 44 39. Accessories before the Fact 45 40. Where Crime suggested is committed in a different Way . . 46 xlii CONTENTS. ART. PAGE 41. Where Crime committed is probable Consequence of Crime suggested 46 42. Where Instigation is countermanded 47 43. Instigation to commit a Crime different from the one committed. 47 44. Accessories and Principals in Second Degree treated as Principals in First Degree .48 45. Accessories after the Fact 48 46. Punishment of Accessories after the Fact 49 47. Where Principal Felon has been Convicted but not Attainted . 49' 48. Misdemeanors 50 49. Offences punishable on Summary Conviction .... 50 CHAPTER VI. DEGREES IN THE COMMISSION OF CRIME— INCITEMENT —CONSPIRACY— ATTEMPTS. 50. Incitement to commit a Crime 51 51. Conspiracy to commit a Crime 51 52. Definition of Attempts 51 53. Attempt — Misdemeanor . . 53^ PAET II. OFFENCES AGAINST PUBLIC ORDEE— INTEEN L AND EXTERNAL. CHAPTER VII. HIGH TREASON, TREASONABLE FELONIES, ASSAULTS ON THE QUEEN, AND OTHER OFFENCES AGAINST THE QUEEN'S AUTHORITY. 54. High Treason by imagining the Queen's Death .... 54 55. What amounts to imagining the Queen's Death ... 55 56. High Treason by levying War 55 57. Levying War by Subjects of a State at Peace with Her Majesty — Subjects assisting 56 58. High Treason by adhering to the Queen's Enemies . . .57 59. Adherence to a de facto King not Treason 58 60. Killinga King's Wife or Son" 58 61. When Words are Treason 58 62. Violating the King's Wife, &c .59 CONTENTS. xliir ART. PAGB 63. Punishment for Treason . . . . , . .50 64. All Principals in Treason ......... 60 65. Treasonable Felonies 60 66. Conspiracy to Intimidate a I'rovincial Legislature ... 61 67. Assaults on the Queen .61 68. Contempts against the Queen 62' 69. Solemnising or Assisting at Marriage of a Member of the Royal Family 63 70. Inciting to Mutiny 68 71. Enticing Soldiers or Sailors to Desert 64 72. Resisting Execution of Warrant for Arrest of Deserters . . 64 73. Enticing Militiamen or Members of the North- West Mounted Police Force to desert . . . . . . . .66- CH AFTER VIII. CHALLENGES, PRIZE FIGHTING, AFFRAYS, UNLAWFUL AS- SEMBLIES, ROUTS, RIOTS, UNLAWFUL DRILLING, FOR- CIBLE ENTRY AND DETAINER, UNLAWFUL POSSESSION AND USE OF EXPLOSIVE SUBSTANCES AND OFFENSIVE WEAPONS, PRESERVATION OF THE PEACE AT PUBLIC MEETINGS AND ELECTIONS AND NEAR PUBLIC WORKS, UNLA WFUL SALE OF SPIRITUOUS LIQUORS. r 74. Sending Challenges and Provoking to Fight . . . .66 75. Definition 66 76. Clialienging to Fight a Prize Fight — Accepting — Training Therefor 66^ 77. Engaging as Principal in a Prize Fight 67 78. Attending or Promoting a Prize Fight 67 79. Leaving Canada to Engage in a Prize Fight 67 80. Where the Fight is Not a Prize Fight— Discharge or Fine . . 68 81. Aftray 68- 82. Unlawful Assembly 69' 83. Routs 70 84. Riots 7a 85. Preventing Reading Proclamation and Continuing to Riot After Proclamation 71 86. Riotous Demolition of Houses, «&c 72 87. Riotous Damage of Houses, uty dulincd in Article L'Od . 271. \Vhen direct rorlbrmance of Duty impossible 272. Duty of Care in doing Dangerous A(;ls 273. Duty of Persons doing Acts requiring Special Skill or Know- ledge 208 CIIAl'TER XXIV. HOMICIDE. 274. Homicide defined— When a Child becomes a Human I'eing . 20!) 275. Killing defined £0!> 276. When an Act is the remote ( ause of I )eath or one of several Causes 211 277. When causing Death does not amount to Homicide ... .213 278. When Homicide is unlawful 2ir» CHAITER XXV. MURDER— MANSLAUGHTER— ATTEMPTS TO COMMIT MURDER — CONCEALMENT OF BIH TH. 279. Manslaughter and Murder defined 210 280. Effect and Definition of Provocation . . .' . . .219 281. When Provocation does not extenuate Homicide . . . 222 282. Provocation to Third Person 223 283. Suicide— Abetting Suicide 224 284. Manslaughter on Oneself 224 285. Accessories before the fact in Manslaughter .... 224 286. Presumption that Killing is Murder 225 287. Punishment of Murder 225 288. Punishment of Manslaughter 225 289. Attempts to commit Murder 226 290. Accessory after the fact to Murder 227 291. Threats and Conspiracies to Murder 227 292. Concealing the Birth of Children 228 CONTENTS. li (HA ITER XXVI. BODTLV TKJVniES, AND ACTS AND OMISSfONS CAUSING DANGER TO THK PERSON. AltT. I'ACiK 2'.>3. W(nin(liii« with Intent i • 230 •_'i)4. Wonniliiiu "... l.".!"). Shooting' at Her Majesty's Wsselis — Woiimling Custonis or In hind Ki'venue Ollicors 'JDG. I)i.subliu>i or Adniinistorin}; J)niAGB 3S0. Temporary Taking is not Theft 303 381. Taking Tame Animal Wandering not Theft . . , .303 382. Evidence as to Tlieft 304 CHAPTER XXXV. EMBEZZLEMENT BY CLERKS AND SERVA^^TS. 383. Embezzlement by Clerks and Servants — Who are Servants . 305 384. The Property Embezzled Must be the Masters . . .309 385. Distinction Between Embezzlement and Other Kinds of Theft 310 386. Evidence as to Embezzlement 311 CHAPTER XXXVI. ROBBERY AND EXTORTION BY THREATS 387. Robbery 313 388. Extortion by Threats 31S CHAPTER XXXVII. BURGLARY, HOUSEBREAKING, ETC. 389. Definitions . 390. Robbing Places of Worship — Burglary 391. Housebreaking and Commission of Felony 392. Entering DwelUng-house with Intent 393. Breaking out After Committing Felony 394. Being Found in Possession of Housebreaking Instruments CHAFTER XXXVIII. 316 317 318 318 318 319 PUNISHMENT OF THEFTS AND OFFENCES RESEMBLING THEFT COMMITTED IN RESPECT OF PARTICULAR THINGS, IN PARTICULAR PLACES, BY PAR- TICULAR PERSONS— RECEIVING GOODS UNLAWFULLY OBTAINED. 395. Punishment for Stealing Things for which no Special Punish- ment is provided 320 396. Punishment for Appropriating Property with Intent to Defraud, for which no Specnal Punishment is Provided . . . 320 397. Additional Punishment when Value of Property Exceeds Two Hundred Dollars 321 398. Valuable Securities 321 399. Testamentary Instruments 322 400. Document of Title to Lands 322 CONTENTS. Iv ART. rAGli 401. Offenders apainst Provisions of Articles 399, 400, not Liable to Conviction in certain Cases 322 402. Judicial or Official Documents 323 403. Stealing Post Letters, &c. — Stopping Mails with Intent to Rob or Search — Issuing Money Orders Fraudulently . . . 324 404. Stealing Mailable Matter other than Post Letters . . . 326 405. Election Documents 326 406. Railway Tickets 326 407. Cattle / . 327 408. Dogs, Birds, Beasts and other Animals . . . i . 327 409. Pigeons j . . 328 410. Oysters 328 411. Things Fixed to Buildings or in Land 3?9 412. Trees in Pleasure Grounds, &c., of Five Dollars' Value — Trees elsewhere of Twenty-five Dollars' Value .... 329 413. Trees of the Value of Twenty-five Cents 330 414. Receiving Stolen Trees exceeding in Value Ten Dollars . . 330 415. Timljer Found Adrift 331 416. l^ences— Stiles— Gates 331 417. Failing to Satisfy Justice that Possession of Tree, &c., is Lawful 332 418. Rools, Plants, &c., Growing in Gardens, &c 332 419. Roots, Plants, isic, Growing elsewhere than in Gardens, &c. . 333 420. Ores of Metals 333 421. Things Under Seizure 334 422. Stealing from \hQ Person 334 423. Stealing in Dwelling Houses 335 424. Stealing in Manufactories, etc 335 425. Fraudulently Disposing of Goods Entrusted for Manufacture . 335 426. Stealing from Ships, Wharves, etc 33(> 427. Stealing Wreck 336 428. Stealing Things Dejwsited in Indian Graves in British Columbia 337 429. Clerks and Servants 337 430. Public Servants 338 431. Public Servants Refusing to Deliver Up Chattels, Moneys or Books, etc., Lawfully Demanded of Them .... 339 432. Bank Officers and Servants 339 433. Tenants and Lodgers 340 434. Bringing Stolen Property into Canada 340 CHAPTER XXXIX. OBTAINING PROPERTY BY FALSE PRETENCES AND OTHER CRIMINAL FRAUDS AND DEALINGS WITH PROPERTY. 435. Obtaining Goods, etc., by False Pretences 341 436. Definition of "Fabe Pretence" 844 Ivi CONTENTS. AUT. I'AGE 437. Of "Obtaining" ..•,.. 340 438. Intent to Defraud . . 34i) 439. Cheating tit Play 34i» 440. Obtaining Passage on Railways, etc., by False Tickets . . 349 441. Pretending to Enclose Money, etc., in a Post Letter, and other Frauds in Respect to Post Letters and the Postal Service . 350 442. Frauds by Officers and Men of Militia Force . . . .351 443. Constables of the Northwest Mounted I'olice Force Fraud- ulently Obtaining Pensions 352 444. Selling Vessel or Wreck, Not Having Title Thereto . . . 352 445. Other Offences Respecting Wrecks and Marine Stores . . 35;> 446. Concealing Gold or Silver with latent to Defraud Partner in Claim 354 447. Removing or Concealing Ores, &c., with Intent to Defraud, &c. . 355 448. Other Unlawful Dealings with Gold and Silver .... 355 449. Warehousemen, &c., Giving False Receii)t8— Knowingly Using the Same 350 450. Owners of Merchandise Disposing Thereof Contrary to Agree- ments with Consignees Who Have Made Advances Tliereon 357 451. Making False Statements in Receipts for Property that Can Be Used Under "The Bank Act ' — Fraudulently Dealing with Property to Which Such Receipts Refer .... 358 452. Innocent Partners 358 453. Assigning Property with Intent to Defraud Creditors . . 359 454. Destroying or Falsifying Books with Intent to Defraud Creditors 359 455. Concealing Deeds or Incumbrances or Falsifying Pedigrees . . 360 456. Frauds in Respect to the Registration of Titles to Land in British Columbia 360 457. Frauds in Respect to the Registration of Titles to Land in the Terrritories 361 458. Fraudulent Sales of Property in Quebec 362 459. Fraudulent Hypothecation of Real Property in Quebec . . 362 460. Fraudulent Seizures of Lands in Quebec 362 461. Unlawfully Applying Marks to Public Stores .... 363 462. Taking Marks from Public Stores 364 403. Unlawful Possession, Sale, &c., of Public Stores .... 364 464. Presumption Where Offender is in Her Majesty's Service, or a Dealer in Marine Stores, or Old Metals .... 364 405. Not Satisfying Justice that Possession of Public Stores is Lawful 365 466. Searching for Stores Near Her Majesty's Vessels . . . 365 407. Receiving Regimental Necessaries From Soldiers or Deserters . 366 468. Receiving, &c., Necessaries from Marines or Deserters . . 367 469. Receiving, &c., a Seaman's Property 367 470. Not Satisfying Justice that Possession of Seaman's Property is Lawful 368 CONTEXTS. Ivii ART. I-AGB 471. Unlawful Disposition of Arms, &c.', of the Militia Force . . 308 472. Unlawful Disposition of Arms, iS:c., of the Northwest Mounted Police Force . 36{> 473. Conspiracy to Defraud or Extort 369 474. Pretending to Exercise Witchcraft ...... 370 475. Cheating 370 476. Concealing Treasure Trove 371 CHAPTER XL. FRAUDS BY AGENTS, TRUSTEES AND OFFICERS OF COM- PANIES—FALSE ACCOUNTING. 477. Misappropriation by Bankers, Merchants. &c 372 478. Misappropriation under Power of Attorney .... 374 479. Misappropriation by Factors or Agents 375 480. As.sisting in such 3Iisappropriation 370 481. Fraudnlent Trustees 370 482. Frauds by Directors, Members and Officers of Incorporated Companies 377 483. Frauds by Officers and Members of Unincorporated Bodies . 378 484. Defence in Certain Cases 379 CHAPTER XLI. RECEIVING. 485. Receiving Defined 380 486. Receiving Property Feloniously Obtained 381 487. Receiving Property Obtained by the Commission of a Mis- demeanor 382 488. Receiving Property Obtained by Offence Punishable on Sum- mary Conviction 382 CHAPTER XLII. FORGERY IN GENERAL. 489. Definition of Forgery— Intent to Defraud . . . . . 384 490. Making a False Document Defined 380 491. "Document" 392 Iviii CONTUyrS. CHAITER XLIII. PUNISHMENT OF PARTICULAR FORGERIES, OFFENCES RESEMBLING FORGER Y, AND A CTS PREPARA TOR Y TO THE COMMISSION OF FORGERY. ART, PAGE 492. Counterfeiting Public Seals, and Forging State Documents . 393 493. Forgery and other OfTences Respecting Transfers of Shares in Public Fundsr-Claims to Crown Grants, Scrip, «&c. . 394 494. Making False Entries in Books of I'ublic Funds . . . 39G 495. Making False Dividend AVarrants 397 496. Forgery of Entries in Registers of Birth, Baptisms, 3Iarriages, Deaths, Burials and other Offences Respecting such Registers . 397 497. Forgery and other Offences Respecting Copies of Registers . 398 498. Forgery of Debentures — Government and Bank Bills and Notes, &c. — Deeds, Bonds, &c. — Wills— Bills of Ex- change — Orders. Receipts 399 499. Stamps 401 500. Debentures Issued under any Lawful Aiithority . . . 402 501. Forgery of Foreign Bills, and other Offences Respecting the Same 403 502. Forgery of Notarial Instruments and Documents Relating to the Registration of Title, &c 404 503. Forgery of Public Registers or Books — False Copies Thereof . 405 504. Forgery of Certain Judicial Documents 405 505. Forgery of other Judicial Documents and Instruments Admis- sible in Evidence in Courts of Justice .... 40G 50(3. Acknowledging Recognizances without Authority . . . 40S 507. Forgery of Letters Patent 408 508. Forgery of ^larriage Licenses 408 509. Forgery of Passenger Tickets 409 510. Offences Respecting Crossed Cheques 409 511. Drawing Bills, &c., without Authority 409 512. Demanding Property upon Forged Instruments . . . 410 513. Unlawful Possession of Forged Bank Notes — Dominion, Pro- vincial or Bank Note Paper — Instruments for flaking Such Pa|)er 411 514. Unlawful Possession, &c., of Paper Prepared for Debentures and other Securities — Plates, Dies, &c. .... 413 515. Printing Circularti, &c., in Likeness of Notes .... 415 516. Forgery of any Documeiit 41G 517. Punishment in Cases not Otherwise Provided For in R. S. C. c. 165, and for which Offender is by any Act Liable to Greater Punishment 416 518. Forgery at Common Law, ^lisdemeanor 417 CONTENTS. lix ART. I'AOIJ 519. Special Statutory Provisions Respectinj^ For<;ery and OtTouces Resemblin 530. Defence where Person charged innocently in the ordinary course of business makes Instruments for Forging Trade Marks 42!^ 531. Defence where Offender is a Servant 430 532. Exception respecting Trade description Lawfully applied to Goods on 22nd May, 1888, &c 431 533. Patentee selling Patented Article not marked, &c . . . 431 534. Falsely 'narking Article as Patented 432 535. Unlawfully applylying Industrial Design to any Article, &c . 4:)2 536. Falsely placing on any Article words Denoting tlie Registra- tion of an Industrial Design, &c 433^ 537. Using Timber Marks unlawfully 433 CHAraER XLV. PERSONATION. 588. Personation at Civil Service Examinations 435 539. Personation at Militia Parades 435 540. Fraudulently acting as Agent of Author in Registration of Copyright 435 541. Personation to obtain Deposits in Savings Banks . . . 430 542. Falsely representing Oneself to be a Notary, &c., and protesting Bill in Quebec 43(> Ix CO XT E NTS. CHAITER XLVI. OFFENCES RELATING TO THE COIN. ART. PAGE Mo, Interpietai ion of Terms 437 544. Counterfeiting Coins, <&c 438 545. Dealing in and importing Counterfeit Coin 439 540. ^Manufacture of Copper Coin and importation of Uncurrent CopjKjr Coin 4;)9 547. Exportation of Counterfeit Coin 439 548. Making Instruments for Coining 440 549. ]iringing Instruments for Coining from ^Nlints into Canada . 441 550. Clipping Current Gold or Silver Coin 441 551. J )efa(!iug Current Coins 442 552. Passing Clippings, t^c. of Current Gold or Silver Coin . . 442 55o. I'osse.ssing Counterfeit Coins 442 554. Uttering Counterfeit or Light Coins, ^Metals, &c'. . . . 443 555. I'unishment of Subsequent Offences 444 550. Uttering Defaced Coin 444 557. Uttering Uncurrent Copper Coins 444 558. Uncurrent Foreign Coins 445 559. When Oflence completed 440 ' CHAPTER XLVII. ADVERTISING COUNTERFEIT MONEY. 500. Definition 447 501. Advertising Counterfeit 31oney and other Offences connected therewith 447 • CHAPTER XLVIII. MALICIOUS INJURIES TO PROPERTY. 502. Arson— Setting Fire to Buildings, &c. — Offences punishable by Imprisonment for Life 449 503. Arson — Setting Fire to Buildings, &c. — Ofibnces punishable by Fourteen Years' Imprisonment 450 504. Recklessly sotting Fire to Forests, &c 451 565. Attempting to set on Fire, &c 452 560. Threats to Burn, &c 453 567. Setting Fire to and other Injuries to Her Majesty's Ships, Dock- Yards, &c 453 568. Setting Fire to Ship-, and other Injuries thereto, and to Lights, Buoys, &c 454 -569. Injuries to Her Majesty's Vessels — Goods liable to Seizure — Custom House, &c. 456 CONTENTS. Ixi" AKT. PAfiE 570. Injuries by Explosive Substances 45(5 '•>'{. Injuries to Manufactures, IMacliinory, &c 457 572. Injuries to j\Iines and Oil Wells 458 5715. Injuries to ^lachinory, ike, used for working; Mines— Oil Wells 4o!> 574. Injuries to Sea and River l>anks, and to works on Rivers, ( 'anals, tOc 400 575. Otbor Injuries to works on Rivers and Canals . . , . 4(10 57G. Injuries to Brid^^es, Viaducts and Toll-bars .... 4(!1 577. Injuries to Rafts of Timber and Works used for tbe Transmis- sion Tliereof 401 578. Preventing the Saving of Wrecked Vessels or Wre;:k .. . 462 571). Injuries to Fish Ponds 4(12 580. Injuries to Railways and Railway Property with Intent, &c. . 4(»;) 581. Injuries to Railways and Railway Property .... 4U3 582. Obstructing Railways • • 464 5.S3. Injuries to Packages in the Custody of Railways . . . 465 584. Injuries to Electric Telegraphs, &c 465 585. Injuries to Mailable Matter — Post Letter Bags — Letter Boxes, &c. — Bonks of Account — Obstructing Mails . » . 460 586. Injuries to Cattle 467 587. Attempting to Injure Cattle 467 588. Injuries to Other Animals . .. - ♦ . • • i • 468 589. Threats to Injure Cattle Z . • 468 500. Injuries to Hoi)-binds and Grape Vines . . *. . . 469 591. Injuries to Trees, &c., Growing in Certain Places . . . 460 592. Injuries to Trees Wheresoever Growing 470 593. Injuries to Vegetable Productions Growing in Gardens . . 470 594. Injuries to Cultivated Roots and Plants Growing Elsewhere . 471 595. Injuries to Land ]Marks Indicating Municipal Divisions . . 471 59(i. Injuries to Other Land Marks 472 597. Injuries to Fences, &c 472 598. Injuries to Turnpike Gates, Toll-bars, &c 473 699. Injuries to Works of Art 473 600. Injuries to Poll-books, &c 474 601. Injuries to Buildings by Tenants 475 602. Injuries Not Before Provided For 475 603. Other Injuries Not Otherwise Provided For .... 475 CHAPTER XLIX. CRUELTY TO ANIMALS. 604. Cruelty to Animals 477 605. Keeping Cock Pits 477 606. The Conveyance of Catt.e 478 Ixii CONTEXTS. AliT. I'AGK <)07. Search of Premises — Penalty for llefusing Admission to Peace Ollicer 47!) CHAPTER L. OFFEyCES CONNECTED Wmi TRADE AND lUlE ACHES OF CONTRACT. (>08. Conspiracies in Restraint of Trade 480 <>09. What Acts Done in Restraint of Trade are not Unlawful . . 480 (ilO. Combinations in Restraint of Trade ...... 481 (ill. Criminal Breaches of Contract 482 (112. Posting; Up Copies of I'rovisione Respecting? Criminal Breaches of Contract — Defacing .Same 483 <)13. Intimidation 484 (il4. Intimidation of Anj' Person to Prevent Him \N'orking at Any Trade 485 615. Intimidation of Any Person to Prevent Him Dealing inAVheat, &c. — Unlaw fidly Preventing Seamen from AVorking . . 48(> (>16. Intimidation of Any Person to Prevent Him Bidding for Public Lands 487 017. Breaches of Employer's Duty to Seamen — Leaving Seamen Behind 487 018. Breaches of Shipowner's Duty to Seamen under Act of the United Kingdom — Sending Unseaworthy Ships to Sea . 489 619. Breaches of Shipowners' Duty to Seamen under Canadian Act —Sending or Taking Unseaworthy Ships to Sea . . 490 620. Breach of Duty by Seamen to Employers 491 (521. Breach of Duty of Seamen to Each Other or Other Persons on Board 494 622. Breach of Duty to Other Ship in Case of a t'ollision . . .494 CHAFIER LL ADULTERATION OF FOOD. 623. Definitions 496 <{24. Adulterating Eood or Drug 498 625. Sailing Adulterated Food or Drugs 499 626. When Selling Skimmed Milk not an Offence .... 499 627. Having Adulterated Liquors in Possession 500 CONTENTS Ixiii construed to extend to it without express words, showing the intention of the loeislnturo to bo that it should ; It. v. VaiigJuin (4 Burr. 2500) 2 P. Wm. 75, Harrimn v. Spencer (15 0. K. 692). In Unlackc v. Dickson (James 287), it was lield thai the whole of the Enslish common law, excepting such parts thereof as are obvious'.y inconsistent with the circumstances of the country, were in force in Nova Scotia, whilo on the other hand none of the statute law of England was in force there excepting such parts as are obviously applicable and necessary. In the one case the exclusion, and in the other the reception, forms Lhc exception. The Statute 5 & 6 Ed. 6, c. 16 against buying and selling offices was in Duwen v. Painter (Freeman 1"T; held not to be in force in Barbadoes (a settled colony), and in Blankard v. Galdy (2 8ull<. 411), the same statute was held not to bo law in Jamaica (a conquered colony). But in the latter case the decision was put upon the ground that the colony was acquired by conquest, in whicli case the rule is not the same as in the case of a colony acquired by settlement. In R. v. Vauuhaa (4 Burr. 2500) Lord Mansfield, referring to the statute 12 W. 2. c. 2. that no officer shall bo appointed for gifts, and to 5 & 6 Ed- 6, c.l6. said that "the argument is strong that these statutei do not extend to Jamaica, though " they were enacted long before that island belonged to the Crown of England. If " Jamaica was considered as a conquest they would retain their old laws till the conqueror "had thought fit to alter them. If it is considered as a colony (which it ought to be, the " old inhabitants having left the island), then these statutes are positive regulations of " police, not adapted to the circumstances of a new colony ; and, therefore, no part of the '*law of England which every colony from necessity is supposed to carry with them at "their first plantation." The case however, as Lord Mansfield observed, did not turn upon the question as to whether or not the statutes referred to were in force in Jamaica. The statute 5 & Ed. 6,c. 16, waa probably in force in Upjer Canada by virtue of 40 Geo. 3, (P. C.) 0. 1, and was clearly extended thereto by 49 Geo. 3, c. 126, which made it applic- THE CRIMINAL LAW. 11 The criminal law of England, so far as it is applicable to the situation and condition of the people of Canada, is applied to Canada as follows : [a.) In Ontario,' as it stood on the 17th of September, 1792 [h.) In Quebec,- as it stood in 1764. able to His Majesty's dominions ; If. v. Mercer (17 U. C. Q. B. 602) ; R. v. Moodie (20 IT. C. Q. 13. 389) ; Foott v. JiullorL- (4 U. f. Q. B. 480). Henley, A. (}•, and Yorko, S. 0., (1757) were of the opinion that the statute 1 Mar., o. 6, declaring, among other things, the counterfeiting of strange coins current within the realm to bo treason, did not apply to Nova Scotia, as it formed no part of the realm ; (Forsyth's Con. Law, 2). See Art. 56. In the An'y.-Gsneral v. Jianee Siimotmye Domct; (9 .Moo. Ind. App. 387), it was held that the English law as to tho forfeiture of goods and chattels was not applicable to the ease of a native Hindoo (though a British subject) who committed suicide at Calcutta. In Ontario the following statutes, rel.'iting to the criminal law and its administration, have been held to bo in force :— 12 Geo. 2, c- 28, 13 Geo. 2, c. 19, and 27 Oeo. 3, c. 1, re- lating to lotteries, gaming, &c. ; Cnmiin v. Widder (16 U. C. Q. B. 356); Corhy v. McDamcl (16 U. C. Q. B. 378) ; Marshall v- Piatt (8 U. C. C. P. 189) ; Loyd v. Clark (11 U. C. 0. P. 248) ; Cronun v. Griffithx (18 U. C. Q. B. 396) : nattenhy v. Odell (23 U. C. Q. B. 482) ; U. v. Mutheson (4 0. R., 559 ; 1 Wm. k M., c. 18, s. 15, (against disturbers of religious worship) ; Rcid v. Infilin (12 U. C. C. P. 191) ; 59 Geo. 3, c. f 9, respecting foreign enlist- ment ; R. V. Schram (14 I'. C. C. P. 318) ; 38 Eliz. o- 5, relating to actions by common informers : Garrett \. Roberta (10 Ont. App. R. 650) ; 21 Geo- 3, o. 49, respecting disorderly places of entertainment opened on the Lord's Day ; R. V. Barnes {id U. C. Q. B. 276). It has been doubted whether 7 & 8 Wm. 3, c. 4, against treating at elections, is in force : Bundas Election Caxe (1 II. E. C. 205). The statute 28 Geo. 3, c. 49, enabling justices in certain cases to net beyond the limits of the counties in which they resided, was held to be local and not applicable to Upper Canada ; R. v. How (14 U. C. C. P. 307). The statutes 9 Geo. 1, c. 19, and 6 Geo. 2. c- 35, against foreign lotteries wore in Ex parte Jlomxi (Stuart's L. C. R. 321) held to be in force in Lower Canada. The statute 28 Ed. 3, c. 13, allowing aliens a jury de medietate linguK was held not to be in force in Nova Scotia; R. v. Burdi II il Old. 125); and if it was ever in force in Prince Edward Island it was superseded by local statutes; R.v. Thomxmon (IP. E.l. R- 226). The statute 13 Geo. 2 o. 19 against gaming was thought by Blanchard, J. C. C, to be in force in Nova Scotia, but McDonald, J., on appeal, doubted its application ; Tomu v. Chambers (20 N. S. R. 309). Thestatute25.Ed. 3, Stat. 5 c. 2, respecting treason is in force in tho North-West Territories ; R. v. Riel (2 Man. L.R. 321 ; 10 App. Cas. 675.) There are in the reports of the several Provinces many cases respecting the application of the common and statute law of England in civil matters to which no reference has been made in this note or in the note on the following page, as that could not be done without too greatly extending the length of the notes, >H.S.C.,c.l44, 8. 1. l4Qeo. 3 c. 83,8.11. 12 A DIGEST OF (c.) In Nova Scotia, ' New Brunswick, and Prince Edward Island, as it stood at dates which have not been definitely determined, but which are indicated in a general way in the note hereto. ' Those Provinces were, according to Forsytli (Cnsos and Opinions on Constitutional Law 2G) acquired in 1497 by settlement. It is true that they were not thereafter con- tinuously subject to the English Crown. The rule in such cases appears, however, to be that a countrj' re-oonquered from the enemy reverts to the same state that it was in be- fore the conquest. The second acquisition is, in fact, considered rather as a rusumptinq than a conquest (6'nm6f«'« co»e 2 Knapp 269. Forsyth's Cons. Law 16). It would, how- ever, 'to an error to assume that no statute passed in England subsequent to 1497 applied to such Provinces without express words- A reference to the decisions of the courts of these Provinces will show that the contrary is the fact. Regard must always, in such cases, bo had to usage, and it often happens that English statute law is introduced by charters and commissions from the crown, or by Provincial statutes respecting the jurisdiction of courts and the practice therein. In Ilex V. McLauflhlin, Ch'nnnan, J. sa.id: "It might not be a clear point as to what " period of time should be deemed the time of the settlement of the Colony ; the period " of the restoration ot Charles II, it was understood, was adopted in practice by the *■ General Assembly of New Brunswick at its first session as the period anterior to which " all Acts of Parliament should be considered as extending." (See Cassels's Manual of Procedure in the Supreme and Exchequer Courts, p. 33.) By the commission to the first Chief Justice of New Brunswick (1784) he was given authority, to which the Supreme Court of the Province has succee led, to hoar and deter- mine all pleas whatsoever, civil, criminal and mixed, according to the laws, statutes and customs of England and the laws of the Province not repugnant thereto, and to do all things which any of the justices of either bench or the barons of the exchequer in England might do ; Atti/. G [See 1 Hist. Cr. Law, ch. xiii, p. 451 j see Draft Code, Pt. II, ss. 7-8.] "- R.S.C.C. 181,8.1. ^ R. S. C. 0. 181, 8. 2. < R. S. C. c. 181, s. 3 ; R. v. Sherman, 17 U- C C. P. 106; R. S. C c. 150, 8. 14; c 154, s. 2(2); c. 169,8.4; 0.171,3.4; 50 & 51 Vict. (D.)o. 45,g.l4; 51 Viet. (D.).o,31,s. 10. THE CRIMINAL LAW. 15 sections, but no person shall Ix' twice pnnish(>d for tho samo olloiict'. Akticj.e 0. enumeration of tunisiiments. ' The followinj,^ puuishmonis arc inlliiitcd by tho law of Canada for the crimes hereinafter defined .-—Death, im- prisonment, whipping, lines, and putting under recog- nizance. AUTICLE T. PUNISHMENT OF DEATH. - |The punishment of death is inllicted by hanging the olfender by the neck till he is dead. Article 8. punishment of impuisonment. •' The punishment of imprisonment consists in the de- tention of the olfender in prison, and in his subjection to the discipline appointed for prisoners during the period expressed in the sentence. : • Imprisonment is of two kinds : * ; (i.) Imprisonment with hard labor. (ii.) Imprisonment ^vithout hard labor.] ' SeoS. D., Art. ]. = R. S. C. c. 181, M. 6, (■■, : 54 Geo. 3, c. H6, s. 1 : 24 & 25 Vict., c. ICO, s. 2; S. D. Art. 2. With respect to the pronouncing of sentence of death, tlie judge's report, 'the treatment of prisoners under sentence of death, and tho carrying of the same into execution, see R. S. C. c. 181, ss. 4-22 and tlie rules published with the Acts of the Parliament of Canada relating to the Criminal Law (1881) p. 199. As to the judge's report and postponing execution in the North-West Territories and the District of Keewatin, see R. S. C. c. 50, s. 70, smd c. 53, s. 27 (5). [As to the history of the punishment of death and benefit of clergy, see 1 Hist. Cr. Law, 467-80. J ■' R. 8, 0. 0. 181,8. 28 (7) ; S. D. Art. 4. [As to the history of the punishment of imprison- ment, Bee 1 Mist. Or. Law 483-7J. Solitary conlinement, except as a matter of prison dis- cipline or retormation, was abolished by R. S. C. s. 181, s. 34. IG A DIGEST OF ^ Every oue who is liable to imprisonment for life or for any term of years, or other term, may be sentenced to imprisonment for any shorter term : Provided, that no one shall be sentenced to any shorter term of imprison- ment than the minimum term, if any, prescribed for the oiFence of which he is convicted. ^ Every one who is sentenced to imprisonment for life, or for a term of years not less than two, must be sentenced to imprisonment in the penitentiary for the Province in which the conviction takes place : Every one who is sentenced to imprisonment for a term less than two years must if no other place is expressly mentioned, be sentenced to imprisonment in the com- mon gaol of the district, county or place in which the sentence is pronounced, or if there is no common gaol there, then in that common gaol which is nearest to such locality, or in some lawful prison or place of confinement other than a penitentiary, in which the sentence of im- prisonment may be lawfully executed : But any prisoner sentenced for any term b any military, naval or militia court martial, or by any military or naval authority under any Mutiny Act, may be sen- tenced to imprisonment in a penitentiary. The term of imprisonment, in pursuance of any sen- tence, shall, unless otherwise directed in the sentence, commence on and from the day of passing such sentence, but no time during which the convict is out on bail shall be reckoned as part of the term of imprisonment to which he is sentenced. Article 9. '^ hard labor. * Imprisonment in a penitentiary, in the Central Prison '- B. S. C. 0. 181, s. 26, . ^ ^_ 2R. S. C. c. 181, s. 28 (1). (2), (3), (6). 8S. D., Art. 6. ■'^^^ *R.S.C. 0.181,8.28 (4), " '" THE CRIMINAL LAW. 17 for the Province of Ontario, in the Andrew Mercer On- tario Eeformatory for females, and in any reformatory prison for females in the Province of Quebec, is with aard labor, whether so directed in the sentence or not : ' Imprisonment in a common gaol or a public prison other than those last mentioned, — [a.) may be with or without hard labor in the discre- tion of the court or person passing sentence if the offender is convicted on indictment or under " The Speedy Trials Act,'' or before a Judge of the Supreme Court of the North- West Territories ; (/;.) may in other cases be with hard labor, if hard labor is part of the punishment for the offence of which such offender is convicted. And if such imprisonment is to be with hard labor the sentence must so direct. '^ Article 10. reformatories. ' The court or person before whom any offender whose age at the time of his trial does not, in the opinion of the court, exceed sixteen years is convicted, whether sum- marily or otherwise, of any offence punishable by im- prisonment, may sentence such offender to imprisonment lu any reformatory prison in the Province in which such conviction takes place, subject to the provisions of any Act respecting imprisonment in such reformatory ; and such imprisonment shall be substituted, in such case, for ' R. S. C. c. 181, s. 28 (5) as enacted in 51 Vict. (D.) o. 47, 3. 1. -S.D. Arts. 10, 21. 'R.S.C c.l8],s.29; 29 A 30 Vict, c 117, s. 14. As to the imprisonment of boys under sixteen and females in reformatories see R. S. C. c. 183 ss. 25-30 (Ontario Reformatory for ooys, ; S8. 31-38 (The Andrew Mercer Ontario Reformatory for females) ; ss. 39-41 (The OntanoIndustrialRefngeforgirls); ss.42.48(QeneralproyiBion8inre8pectof snchreform- atones): 3s. 49-54 (Reformatory School for Boys in Quebec); ss. 55-58 (Reformatory pnsons for females in Quebec) ; ss. 61-64 (The Halifax Industrial School) ; ss. 65-71 (The ualitax Reformatory School for boys of the Roman Catholic faith) ss. 72-74 (Reforma- " tory pnson Prince Edward Island). 18 A DIGEST OF the imprisonment in the pi'uitentiary or other place of confinement by which the ollender would otherwise be punishable under any Act or law relating thereto : Provided, that the sentence must not in any case be less than two years nor more than five years' confinement in such reibrmatory prison ; and in every case where the term of imprisonment is fixed by law to be more than five years, then such imprisonment must be in the penitentiary. Every person imprisoned in a reformatory is liable to perform such labor as is required of such person. 'Article 11. WHIPPING. - "Whenever whipping- may be awarded for any offence, the court may sentence the offender to be once, twice or thrice whipped, within the limits of the prison under the supervision of the medical officer of the prison ; and the number of strokes and the instrument with which they shall be inflicted shall be specified by the court in the sentence ; and, whenever practicable, every whipping shall take place not less than ten days before the expiration of any term of imprisonment to which the offender is sen- tenced for the offence : Whipping shall not be inflicted on any female. •S.D.Artl2. -R.S.C. c.181,8. 30. [When no special provisioiii arc made as to the punishment o." whipping, the number of strokes and the instrument to be used are left to the discretion of the person by whom the whipping is inflicted. Such was the practice when whipping was inflicted as a com- mon law punishment, and .such must still be tho practice whore no statutory directions are given as to the mode of inflicting it. The only limitation is contained in the de- claration of the Bill of Rights against " illegal and cruel punishments " (1 W. & M. sess. 2, 0. 2, preamble). As to the law in England see S.D. Art. 12 and notes. 25 <& 26 Vict. o. 18, s. 1 ; 21 & 25 Viot. 0. 96, 6. 119 ; o. 97, s. 75 ; c. 100, s. 70 ; 26 & 27 Vict. c. 44, s. 1. THE CRIMINAL LA W. 19 ' Article 12. FINE. [The punishment of fining consists in ordering the offender to pay to Her Majesty a sum of money expressed in the sentence.] ' Every one who is convicted of any misdemeanor may, in addition to or in lieu of any other punishment other- wise authorized, be fined. 'Whenever a fine may be awarded or a penalty im- posed for any offence, the amount of such fine or penalty is, within such limits, if any, as are prescribed in that behalf, in the discretion of the court or person passing sentence or convicting, as the case may be. '[When no particular sum is limited as the maximum amount of a fine, the fine imposed must not be excessive. •'* Article 13. PUTTING UNDER RECOGNIZANCES. [The punishment of putting under recognizances con- sists in ordering the offender to promise to pay to Her Majesty a sum of money expressed in the recognizance if he breaks the condition thereof, and to find other persons to make a similar promise on his behalf and as his sureties. In eases in which the court or magistrate is authorized to require such securities, they may direct the offender to be imprisoned till he enters into the recognizance and finds the sureties.] "Every one who is convicted of any felony or misde- 'SD.Art. 13. lOO.trif'"" ^^^''' ^^ ^=^''2^*^-25 Vict, c. 06,8. n7,c. 97,s.73.c. 98.8. 51.c. 99.8. 38,c. 'R.S.C.clSl.s.SS. « n^'/ ^: '^''- ^' ''• ^- ^°° *''" ^'^»"'^ ^^''^^' ' Salvo contenemento suo.'J &■!> Art. 14. _^ II.S.C. c. 181. s. 31 : 24 & 25 Viot. o. 96. s. 117, o. 97. «. 73, c. 93, g. 51. c. 99. s. 38. c. 100.3. o2 20 A DIGEST OF meaner may, in addition to or in lieu of any punishment otherwise authorized, be required to er^'^r into his own recognizances, and to find sureties, both or either, for keeping the peace and being of good behavior : but a per- son must not be imprisoned for not finding sureties under this provision, for any terra exceeding one year. ^ "Whenever any person w^ho has been required to enter into a recognizance w^ith sureties to keep the peace and bo of good behavior has, on account of his default therein, remained imprisoned for two weeks, the sheriff, gaoler or warden shall give notice, in writing, to a judge of a supe- rior court, or to a judge of the county court of the county or district in which such gaol or prison is situate, and in the cities of Montreal and Quebec to a judge of the ses- sions of the peace for the district, and such judge may order the discharge of such person thereupon, or at a subsequent time, upon notice to the complainant or other- wise, or may make such other order as he sees fit, respect- ing the number of sureties, the sum in which they are bound, and the length of time for w^hich such person may be bound. »K.8.C. c. 181,8. 32 as enacted in 51 Vict. (D)c. 47. ;. 2. THE CRIMINAL LAW. 21 CHAPTER III. 'classification of crimes and general provisions as to their punishment— pardons dc ^Article 14. treason, felony, and misdemeanor. [Every crime is either treason, felony, or misdemeanor. Every crime which amounts to treason or felony is so de- nominated in the definitions of crimes hereinafter con- tained. All crimes not so denominated are misdemeanors . ] Article 15. consequences of a conviction of treason or felony IN certain provinces. The consequences among others of a conviction of trea- son or felony, and of such conviction followed by sentence, are in the Provinces of Ontario, Quebec, Nova Scotia, New Brunswick, Prince Edward Island and British Columbia, as follows : — '* {a) On attainder for treason the offender forfeits forever ' [2 Hist. Cr. Law.Ch. xx.p|). 192-6] -S.D. Art. 15. ' 4 Steph. Com. (fith ed) 5U : 2 Uiiwk. c. 49. Doe d. Griffith v. Pritchard (5 13. & Ad. 765) EaitiBood V. McKcnzie (5 U.C O.S. 708). Attainder imports that extinction of civil rights and capacities which taVcos phveo whenever an olfenJer receives judgment of death or out- lawry for a capital otTencc. It is tiic immediate inseparable consequence (not of the conviction) but of such judgment (1 Steph. Com. (6th ed.) 456; 4 Stoph. Com. 543,551; Wharton's Law Lexicon Verh. nttatnder.) At common law, lands so forfeited were not vested in the actual pusse.ssioii of the Crown during the life of the offender without an office (2 Hawk. c. 49, s. 2) ; but by 33 lien. 8, c. 20, s. 3 it was provided th.it in cases of high treason the king shonld be deemed and adjudged in actual and real possession of the landiJ, tenements, hereditaments, usoj?, goods, chattels and all other thngs of the person attainted that the king ought lawfully to have, and the offender to forfeit, without ary office or inquisition ; (2 Hawk. c. 40, ss. lS-32 ; Uue d. Gillespie v. Wixon, 5 U. C. Q. B. 132 ; Doe d. Sheldon v. li'iimau, 9 U. C Q. B. 105). 22 A DIGEST OF to the crown all his lands and tenomonts of inheritance of freehold tenure whether fee simple or fee tail and all his rights of entry on lauds and tenements of such ten- ure, which he had at the time of the offence committed, or at any time afterwards, to bo forever vested in the crown ; and also the profits of all lands and tenements of such tenure which he had in own right for life or years so long as such interest shall subsist. The forfeiture relates backward to the time of the trea- son com "tted, so as to avoid all intermediate sales and incumbrances, but not those before the fact. ' (h) On attainder for murder the offender forfeits to the crown not only the profits of his freehold estates during life, but also (in the case of lands held by him in fee simple, though not in the case of those held in tail) the lands themselves for a year and a day, with power to the crown of committing upon them what waste it pleases. ^ (c) On a conviction of treason or any felony the offender forfeits to the crown his personal estate, but not such as he has as executor or administrator. ■'' (d) On attainder for treason the blood of the offender > 4 Steph. Com. (6th ed.) 548 ; 2 Hawk. c. 49, s. 8 ; /^ e Bridg€» 1 M. & W. 149. -' 2 Hawk. c. 49, ss. 9-13 ; 4 Stci)b. Com. (6th ed.) 550 Bullock v Dodds, 2 B. & Aid. 25*. See also as to forfeiture of goods and chattels upon a fngam fecit and in other cases, 2 Hawk. c. 49, ss. 14-17. But in modern timos it became unusual for the jury to find the flight, forfeiture being looked upon, since the vast increase of personal property, as too large a penalty for an offence to which a man is prompted by the natural love of liberty ; and by the statute of the United Kingdom 7 k 8, Geo. 4, c. 28, s. 5 it was provided that where any person should be indicted for any treason or felony, the jury empanelled on his trial should not be charged to inquire whether he fled for such treason or felony (4 Steph. Com. 6th ed. 550,551.) By K.S. C. , c 171, s. 187, it is provided that the jury em|)aneiled to try any person for treason or feloi-.y, shall not be charged to inquire concerning his lands, tenements or goods, nor whether he fled for .such treason or felony. No forfeiture accrues upon a summary conviction (4 Steph. Com., 6th ed. 550). It was once the pnetico for the grand jury, on indictments for homicide, to find the value and description of the instrument of death, to enable the crown or its grantee to claim the deodand (2 Steph. Com. Gih cd.580); but it is now the law that there shall, in respect of such death, be no forfeiture of any chattel which has moved to or caused the death of any human being ; (R. S. C, c 181, s. 35; 9 & 10 Vict. o. 62.) ' 4 Steph. Com. (6th ed.) 550; 2 Hawk. c. 49, s. 47, et. s'q. By the common law the offender's blood was corrupted by attainder of treason or felony. By 7 Auno. c.21, s. 10 THE ClilJIIXAL f.AW. 23 is corrnpti'd both upvv^ards and downwards so that ho can neither inherit kinds or other hereditaments from his ancestors, nor retain those hi' is already in possession of, nor transmit thein by descent to any heir, but the same escheat.' (1708), it was enacted that after the death of the Pretender and his sons no attainder for treason sliould operate to the prejudiec of any other than t)ic offender himself ; but this provision (the operation of which was postponed by 17 (Jeo. 2, c. 39, s. 3 (1714), it is said was repealed by Si) & 40 Geo. 3, c. 03 (1800), (1 Stoph. Com. 6th ed. 4(50 note (m). Mr. Wicksteed, Q.C., formerly Law Clerk to the House of Commons, thinks, however, that such was not the effect of the latter statute (Taseh. Can. Crim. Acts, 1071). But whether it was or not would not bo material in any case arising in any Province of Canada other than Hritish Columbia ; Art. 2 (c). It is also doubtful whether, in the other Provinces mentioned in this ArtiolOi the law is as stated in clause (d). Tasch. Can. Crim. Acts, 1009-1074 ; 2 Hawk- 649 note (1). What on this subject is the law of England that by virtue of statutes, or the rules governing the application of that law to colonies (Art. 2 in) {!/) and (c) ) is to be applied to the Provinces mentioned '.' Is it the common law, as represented in the text and recognized as existing by 7 Anne.c- i:l, or the law as therein declared, namely, thiit after a date inde- linite, but certain of determination, and since doterminod (lSi)7;, corruption of blood for tretison should be abolii-hed ? There are, I think, no decisions, but the Parliament of Canada, following the Parlia- ment of the United Kingdom, has in its legislation assumed that the comn.on law on this subject isin force in Canada. ]3y R. S. C, c. 181, ss. 30 and 37 (82 & 33 Vict. (D.) c. 29, ss. 00 and 56 ; 54 Geo. 3, c. 1'.5), it is provided that— "36. Except ill cuien c' treason, or of abetting, procuring or counaelling the same, no " attainder shall extend to tha disinheriting of any hein or to the prejudice of the right " or title of any person, other than the right or title of the offender during his n.atural " life only." '' 37. Every one to whom, after the death of any such offender, the right or interest to " or in any lands, tenements or hereditaments should or would have ai>pertaincd if no " such attainder had taken place, may, after the death of such offender, enter into the '' same." deferring to these provisions and to Articles 32-36 of the Civil Code of Quebec, Mr. Justice Taschcreau suggests a ((uest'on as to the legislative authority of tlio Parliament of Canada in respect of the consequences of attainder ; (Tasch. Can. Crim. Acts, 1073). It is not doubted) however, thai the Parliament of Canada may deprive an offender of life or liberty, or impose on him any fine or forfeiture that to it seems meet. That is con- stantly done without question, and it is submitted that to legislate in respect of other consequences of crime, and to abolish or restore corruption of blood therelor, is equally legislating in respect of the criminal law, as in the ciuses mentioned, and no greater inter- ference with property or civil rights in the Provin(io than in such cases. In the statute 54 Geo. 3, c. 145, attainder for murder was also excepted. Sec also 3 k i Wm. 4 c. 106,8. 10. ' Escheat should be carefully distinguished froin forfeiture to the crown, as the conse- (luences, by reason of their similitude in such cases, and because the crown is freiiucntly the immediate lord of the fee and therefore entitled to both, have often been confounded together ; (1 Steph. Com., 6th ed. 457). 24 A DIGEST OF ^ Article 1G. consequences of a conviction of treason or felony in manitoba and the north-west territories. The consequences, among others, of a conviction of treason or felony in the Province of Manitoba and the North- West Territories are, so far as such provisions are applicable thereto, as follows : [{a.) ' Every person convicted of treason or felony may be condemned to the payment of the whole or any part of the costs and expenses incurred in and about his prose- cution and conviction. (b.) ' Immediately upon the conviction of any person for felony, the court before which he is convicted may award any sum of money not exceeeding .£100, by w^ay of satis- faction or compensation for any loss of property suffered by any person through or by means of such felony, upon the application of such person. Such sum is to be deemed to be a judgment debt due to the person entitled to receive the same from the person so convicted. (c.) ' Every person sentenced to u ^ath, to penal servitude, or to any term of imprisonment with hard labor, or exceeding twelve months : (i.) Becomes incapable of holding any military or naval office, or any civil office under the crown, or other public employment, or any ecclesiastical benefice, or of being elected, or sitting, or voting as a member of either House of Parliament, or of exercising any right of suffrage or other parliamentary or municipal franchise whatever in Eng- land, "Wales, or Ireland. 1 S. D. Art. 16. - [ 33 »lk 34 Vict. c. 23, s. 3. The section contiiina various subsidiary provisions as to coists, which do not bear on the punishment of the oflfonce. See 1 Hist. Cr. Law, 487-9.] This Act came into force on the 4th of July 1870. See Art. 2 (. 1790) cumulative sentences, amounting in all to six years' imprisonment, were passed upon three indictments for similar offences.] ' 52 Vict. (D.) 0. 44 ; 50 & 51 Vict. c. 25. The court may direct the offender to pay the cost of prosecution or a portion thereof ; s. 2 (2). See also ILS.C. c. 177, 88. 14, 15. 28 A DIGEST OF "Judge" or "Court" within the meauiug of " Tfic Speedy Tfials ilc^" and any "Magistrate" within the meaning of " Tlie Summary Trials Act.'' In any case in which a person is convicted before any court of any offence punishable with not more than two years' imprisonment, and no previous conviction is proved against him, if it appears to the court before whom he is so convicted, that, regard being had to the youth, char- acter, and antecedents of the offender, to the trivial nature of the offence, and to any extenuating circumstances under which the offence was committed, it is expedient that the offender be released on probation of good conduct, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a recognizance, with or without sureties, and during such periods as the court directs, to appear and receive judgment when called upon, and in the meantime to keep the peace and be of good behavior : If a court having power to deal with the offender iu respect of his original offence or any justice of the peace is satisfied by information on oath that the offender has failed to observe any of the (;onditious of his recogniz- ance, such court or justice of the peace may issue a war- rant for his apprehension : An offender, when apprehended on any such warrant, shall, if not brought forthwith before the court having power to sentence him, bo brought before the justice issuing such warrant, or before some other justice in and for the same territorial division, and such justice snail either remand him by warrant until the time at which he was required by his recognizance to appear for judg- ment, or until the sitting of a court having power to deal with his original offence, or admit him to bail with a sufhcieut surety conditioned on his appearing for judg- ment : , The offender v/hen so remanded miiy be committed to a prison, either for the county or place in or for which THE CRIMINAL LAW. 29 the justice remanding him acts, or for the county or place where he is bound to appear for judgment ; and the war- rant of remand shall order that he be brought before the court before which he was bound to appear for judgment, or to answer as to his conduct since his release : The court, before so directing the release of an offender, must be satisfied that the offender or his surety has a fixed place of abode or regular occupation in the county or place for which the court acts, or in which the offender is likely to live during the period named for the observance of the conditions. Article 21. PARDONS. ' The Crown may extend the Royal mercy to any person sentenced to imprisonment by virtue of any statute, al- though such person is imprisoned for non-payment of money to some person other than the Crown. -"Whenever the Crown is pleased to extend the Royal mercy to any offender convicted of a felony punishable with death or otherwise, and grants to such an offender either a free or a conditional pardon, by warrant under the Royal Sign Manual, countersigned by one of the principal Secretaries of State, or by warrant tinder the hand and seal-at-arms of the Governor General, the dis- charge of such offender out of custody in case of a free pardon, and the performance of the condition in the case of a conditional pardon, shall have the effect of a pardon of such offender, under the Great Seal, as to the felony for which such pardon has been granted. But no free pardon, nor any discharge in consequence thereof, nor any conctx' onal pardon, nor the performance of the condition thereof, in any of the cases aforesaid, » R.S-C. c. 181, s. 38 ; 22 Vict, c 32, s. i. " R.S.C. 0. 181, B. 39 ; 7 & 8 Geo. 4, c. 28 s. 13 ; 9 Geo. 4, c. 32 8. 3. 30 A DIGEST OF shall prevent or mitigate the punishment to which the offender might otherwise be lawfully sentenced, on a sub- sequent conviction for any felony or offence other than that for which the pardon was granted. AUTICLE 22. COMMUTATION OF SENTENCE. ' The Crown may commute the sentence of death, pass- ed upon any person convicted of a capital crime, to im- prisonment in the penitentiary for life, or for any term of years not less than two years, or to imprisonment in any other gaol or place of confinement for any period less than two years, with or without hard labor ; and an instru- ment under the hand and seal-at-arms of the Governor General, declaring such commutation of sentence, or a letter or other instrument under the hand of the Secretary of State, or of the Under Secretary of State, shall bo suffi- cient authority to any judge or justice, having jurisdiction in such case, ot to any sheriff or officer to whom such etter or instrument is addressed, to give effect to such commutation, and to do all such things and to make such orders, and to give such directions, as are requisite for the change of custody of such convict, and for his conduct to and delivery at such gaol or place of confinement or peni- tentiary, and his detention therein, according to the terms on which his sentence has been commuted. Article 23. ":: undergoing sentence equivalent to a pardon. ^ When any offender has been convicted of an offence not punishable with death, and has endured the punish- ment to which such offender was adjudged, or if such ' 11,8.0.0.181,8.40. -R.S.C.C. 181s. 41;9aeo. 4 c. 32 s. 3. -— — — . „_._._-. THE CRIMINAL LAW. 31 ofFeuco is punishable with death and the sentence has been commuted, then if such offender has endured the punishment to w'^hich his sentence was commuted, the punishment so endured shall, as to the offence whereof the offender was so convicted, have the like effect and consequences as a pardon under the G-reat Seal ; but no- thing' herein contained, nor the enduring of such punish- ment, shall prevent or mitig;.te any punishment to which the offender might otherwise be lawfully sentenced, on a subsequent conviction for any other offence. ' "When any person convicted of any offence has paid the sum adjudged to be paid, together with costs, under such conviction, or has received a remission thereof from the Crown, or has suffered the imprisonment awarded for non-payment thereof, or the imprisonment awarded in the first instance, or has been discharged from his con- viction by the justice of the peace in any case in which such justice of the peace may discharge such person, he shall be released from all further or other proceedings for the same cause. 1 R.S.C. c. 181 s. il \ 24 k 25 Vict. c. flt) s. 100, c. 07 s. 07. 32 A DIGEST OF CHAPTER IV. ' GENERAL EXCEPTIONS. - Article 24. definitions subject to exceptions. [Every definition hereinafter contained of any crime is subject to the following general exceptions, except in the cases in which the contrary is expressed : — ■' Article 25. children under seven. ^ No act done by any person under seven years of age is a crime. ■' Article 26. children between seven and fourteen. " No act done by any person over seven and under fourteen years of age is a crime, unless it be shewn aflBr- matively that such person had sufficient capacity to know that the act was wrong ^ Article 21. insanity. ^ No act is a crime if the person who does it is at the [See 2 Hist. Cr. Law, chaps, xviii, xix., pp. 94-186. See Draft Code, Pt. III. ss- 19-70.] S.D. Art.24. . 3 S.D. Art. 25. ♦ [1 Hale P. C. 27-8 ; 1 Rusa. Cr. lOS ; Draft Code, s. 20.] 6S. D.Art.26. « [R. V. Owen, 4 C. & 1' % ; and see cases collected 1 Rus3. Cr. 108-113 ; Draft Code, s, 20. J ' S. D. Art. 27. * rrhe whole subject is discussed at full length in 2 Hist. Cr. Law, ch. xix. pp. 124-196. Cf. Draft Code, 8. 22.] THE CRTMINAL LAW. 33 [time when it is done prevented ( ' cither by defective mental power or) by any disease affecting his mind. (a.) from knowing the nature and quality of his act ; or, (6.) from knowing that the act is - wrong ; ( or, ^ (c.) from controlling,'' his own conduct, unless the ab- sence of the power of control has boon produced by his own default,) But an act may be a crime although the mind of a per- son who does it is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act. Illustrations, (1.) A kills B under an insane delusion that he is breaking a jar. A's act is not a crime. (2.) A kills B knowing that he is killing B, and knowing that it is wrong to kill B ; but his mind is so imbecile that he is unable to form such an estimate of the nature and consequences of his act as a person of ordinary intelligence would form. A's act is not a crime if th« words within the first set of brackets are law. If they are not, it is. (8.) A kills B knowing that he is killing B, and knowing that it is ille- gal to kill B ; but under an insane delusion that the salvation of the human race will be obtained by his execution for the murder of B, ana that God has commanded him (A) to produce that result by those means. A's act is a crime if the word " wrong " hfis the second of the two meanings ascribed to it in the note.'^ It is not a crime if the word " wrong " has the first of those two meanings, (4.) A suddenly stabs B under the influence of an impulse caused by disease, and of such a nature that nothing short of the mechanical restraint (if A's hand would have prevented the stab. A's act is a crime if (c.) is not law. It is not a crime if (c.) is law. (5,) A suddenly stabs B under the influence of an impulse caused by ' [The parts of the Article in parentheses are doubtful. * The word "wrong " is variously interpreted ns meaning ;— 1. Morally wrong. 2. Ille- gal. The practical effect of these differenoes is shown in Illustrations (4), (5), and (6). 'In extreme strictness this ought to be, "If the word 'wrong 'has the Prst of these two meanings, the criminality of the act would depend upon the question whether the jury thousht that God's command under the circumstances altered the moral character of the act."] D 34 A DIGEST OF [disease, and of such a nature that a strong? motive, as, for instance, the fear of his own immediate death, would have prevented the act. A's act is a crime wliether (c.) is or is not law. (G.) A permits his mind to dwell upon and desire B's death ; under the influence of mental disease this desire becomes uncontrollable, and A kills B. A's act is a crime whether (c.) is or is not law. (7.) A, a patient in a lunatic asylum, who is under a delusion that his linger is made of glass, poisons one of his attendants out of revenge for his treatment, and it is proved that the delusion iiad no connection whatever with the act. A's act is a crime. ' AllTICLE 28. PRESUMPTION OF SANITY. ^ Every person is presumed to be sane, and to be responsible for his acts. The burden of proving that he is irresponsible is upon the accused person ; but the jury may have regard to his appearance and behavior in court. 'Article 29. drunkenness. * Voluntary drunkenness is not regarded as a disease affecting the mind within the meaning of Article 2*7 ; but involuntary drunkenness, and diseases caused by volun- tary drunkenness, fall, so far as they affect the mind, within that Article. If the existence of a specific intention is essential to the commission of a crime, the fact that an offender was drunk when he did the act which, if coupled with that intention, would constitute such crime, should be taken into account by the jury in deciding whether he had that intention. iS.D.Art. 28. 2 [/?. V . Oa/ord, 9 C. A' P. 525 ; I{. v. Slokea, 3 C & K. 185 ; Drai t Code, 8, 22 ;] R.r. Riel, 2Man. L. R. 321. ^ »S.D. Art 29. ^ [1 Ilale, P. C. 32-3. Illuetrations (1), (2), and (3) are founded on this passage.] THE CRIMINAL LAW. 35 I Illmtraliong. [(1.) A, in a fit of voluntary drunkenness, shoots B dead, not knowing what he dots. A's act is a crime. (2.) A, under the intiuence of a drug fraudulently administered to bim, shoots B dead, not knowing what he does. A's act is not a crime. {?,.) A, in a fit of delirium tremens cr-used by voluntary drunkenness, kills B, mistaking him for a wild animal, attacking A. A's act is not a crime. ' (4) A is indicted for inflicting on B an injury dangerous to life with intent to murder B. The fact that A was drunk when he inflicted the injury ought to be taken into account by the jury in deciding whether A intended to murder B or not. ^Article 30. married women. ° If a married woman commits a theft, or receives stolen goods, knowing them to be stolen, in the presence of her husband, she is presumed to have acted under his coercion, and such coercion excuses her act ; but this presumption may be rebutted if the circumstances of the case show that in point of fact she was not coerced. It is uncertain how far this principle applies to felonies iu general. It does not apply to high treason or murder. It probably does not apply to robbery. • [/;. V. Cnise, 8 C. & P. 540.] R. v. Dohcrti , 16 Cox, C. C. :506. - S. D. Art- 30. See Appendix, Note 1. • [1 Hiile, p. C. 45 ; I Hawk. P. C. 4 ; Jt. v. Hughes, 1 Russ. Cr. 147 ; R. v. Atkiwon, 1 Russ. Cr. 141, 154 ; R v. Smith, J). & B. 553 ; R. v. Archer, 1 Moody, 143 ; R. v. Brooks, Dear. 184 ; R. v. Wardroper, Bell, C. C. 249. As to felonies in general, see 1 Russ. Cr. 139- 141. As to high treason, murderand robbery, see 1 Kale, P. C. 45 ; Dalton, c. 157; 1 Hawk. P. C. 4 ; R. V. Buncov'he, I Cox, C. C. 183 ; but as to robbery, see Mr. Carrington's argument in R.v. CnMe,8C. &P.536. InR.v. Torpei/,Mr. Russell Gurney.Rcoorderof London, held tnat the doctrine applied to robbery, 12 Cox, C. C. 48-9; of. Draft Code, s. 23. As to mis- demeanors in general, see note to/?, v. Price, 8 C. & P. 20; and 1 Russ. Cr. p. 145, note (e.), 5th ed. ; See too R. v. Torpev, 12 Cox, C, C. 48-9. As to uttering, see R. v. Price, 8 C. & P. IE*. As to false swearing, R. v. Dicks, 1 Russ. Cr. 141. As to the general doctrine, see Appendix, Note I. The principle is not affected by the Married Womens' Property Act, 45 & 46 Vict., c. 75.] d2 86 J DIGEST OF [It applies to uttoriug counterfeit coin. It seems to apply to misdemeanors generally. ' AllTIOLE 31. COMPULSION. An act which it' done* willingly would make a person a principal in the second d(!gree and an aider and abettor in a crime, may be innocent if the crime is committed by a number of ollenders, and if the act is done only because during the whole of the time in which it is being done, the person who does it is compelled to do it by threats on the part of the - offenders instantly to kill him or do him grievous bodily ha:-m if he refuses ; })ut threats of future injury, or the command of any one not the husband of the offender, do not excuse any offence. Illustrations. •' (1.) A, B, and C, engaged in a rebellion, force D to join the rebel army and to do duty as a soldier by throats of death continuing during the whole of his service. D's act is not a crime. ' (2.) A mob employed in breaking threshing machines force several persons to go with them, and force each person to give each threshing machine a bloAV with a sledge hammer : A, one of tho persons so forced, runs away as soon as he can. A's act is not a crime. •^Article 32. necessity. An act which would otherwise be a crime may in some cases be excused if the person accused can shew that it was done only in order to avoid consequences which could 1 S. D. Art. 31. Draft Code, s. 23. 2 [I Halo, p. C. 43-4, 49 ; and see Illustrations. » I{. V. McOrowther, 18 St. Tr. 394 »a. d. ITKi). ■• Ji- y- Crutcliley, 5 C. & P. 133. The report says nothing as to the nature of the force. Probably it was by threats of personal violence. It is singular that the law upon this subject should be so very meagre. The subject is treated at some length in 1 Hale, cc- vii., viii-, and ix., pp. 43-52, but in a very unsatisfactory way. It would seem that in all common cases the fact that a crime is done unwillingly and in order to avoid injury, ought to affect rather the punishment than the guilt] 6S.D. Art.32. THE CRTMINAL LAW. St [not oth(!r\viso be iivoidod, and which, if t hoy had Ibllowed, would have inllicted upon him or upon others whom he was bound to protect incvitabh' and irreparable evil, that uo mon^ was done than was reasonably ncM^essary for that purpose, and that the evil indicted by it was not dispro- portionate to the evil avoided. ' The extent of this principle is unascertained. It does not extmid to the '-ase of shipwrecked sailors who kill a boy, one of their numbi'r, in order to eat his body. I \IL V. Dudlfv li- Stephens, L. 11. II Q. B. D. 273. In this case the Court commented on the passage in the text, iind Lord Coleridge in delivering judgment said (p. '286), " We have the best antliority for sayiiit; that " my " hingiiago was not meant to cover tlio case then under consideration." I authorized this stntomont, and on consideration I feel that my liuiRuaKe was not vague enougli— vague as it was— to represent fully the vagueness of the law. I have slightly altered it, so as to make it more vague. I should have agreed with the rest of the Court had I boon a member of it in R. v. Dmlleu, though not in all the reasoning of the judgment. I should have based my judgment on the fact that the .special verdict found only that if the boy had not been killed and eaten, the survivors *' MiouXiXprohahhi not have survived" ; and on thoi)rinciplo that in this particular class of cases an error on the side of severity is an error on the safe side. (}reat danger would be involved in admittii-.g a principle which might be easily abused. 1 cjuld not go so far as to say, as the judgment delivered by Lord Coleridge says, that any case can impose on a man " a duty " (if the word means a legal duty) " not to live but to die." Nor do I agree with what is said on p. 237, which appears to me to base a legal conclusion upon a ques- tionable moral .and theological {'(mndation, and to bo rhetorically expressed, " It would be ii very easy and cheap display of commonplace learning" (it is said with obvious truth) to "quote from" four specified Greek and Latin authors, passage after passage in which the duty of dying for others has been laid down in glowing and emphatio language as resulting from the principles of heathen ethics. It is enough in a Christian country to remind ourselves of the Great Example whom we profess to follow. Whatever estimate may be formed of solf-saorifloe, it seems to me to be a duty of which the law can take no notice, if indeed it is a duty at all, which is not a legal question. I can discover no prin- ciple in the judgment in ]L v. Dwdvy. It depends entirely on its peculiar facts. The boy was deliberately put to death with a knife in order that his body might be used for food. This is quite ditt'ercnt from any of the following cases— (1) The two men on a plank. Here the successful man does no direct bodily harm to the other, lie leaves him the chance of getting another plank. (2) Several men are roped together on the Alps. They slip, and the weight of the whole party is thrown on one, who cuts the rope in order to save himself. Here the question is not whether some shall die, but whether one shall live. (3j The choice of evils. The captain of a ship runs down a boat, as the only means of avoiding shipwreck. A surgeon kills a child in the act of birth, as the only way to save the mother. A boat being too full of passengers to float, some are thrown overboard. Such cases are best decided as they arise. See on the whole subject my History of Criminal Law, IL 108-15. In the United States (U. S. v. ifoZme*, 1 Wall. Jr. 1, quoted at length in Wharton on Homicide, s. 5(51), shipwrecked sailors and passengers escaping in a boat which could not hold all, the sailors threw some of the passengers overboard. The Court held that the passengers ought to have bee i preferred to the sulors, unless 88 A DIGEST OF ItluMrationg. [(1.) ' A, the Governor of Madras, acts towards his council in an arbi- trary and illegal manner. The council depose and put him under arrest, and assume the powers of government themselves. This is not an offence if the acts done by the council were the only means by which irreparable mischief to the establishment at Madras could be avoided. (2.) '^ A and B, swimming in the sea after a shipwreck, get hold of a plank not large enough to support both ; A pushes off B, who is drowned. This is not a crime. •'Article 33. ignorance of law. * The fact that an ofFendor is ignorant of the law is in no case an excuse for his offence, but it may be relevant to the question whether an act which would be a crime if accompanied by a certain intention or other state of mind, and not otherwise, was in fact accompanied by that intention or state of mind or not. •'"' In interpretiug a statute which makes unlawful a con- tinuous act which till the statute passed was not unlaw- ful, it is to be presumed thai the legislature intended to allow a reasonable time for the discontinuance of the act so made unlawful, and the ignorance of the accused that the statute had been passed is a fact relevant to the question whether his discontinuance of it was within such reason- able time or not. [the presence of the siiilois was required for the common safety, but " under any circum- stances it was held the proper method of detcrnuning who was to be the first victim out of the particular class was by ballot." I doubt whether an English Court would take this view. It would bo odd to say that the two men on the raft were bound to toss up as to which should go. ' R. V. Strattm><(; Others, 21 St. Tr. 1045 ; see Lord Mansfield's judgment, pp. 1222-6. - Bacon's Maxims, No. 5.] •'S. D.Art.33. .,-___...,.,,,. ,.,„,^. MDraft Code, s. 24.] B.v. Maillonx.SPags.m. '• [See Illustration '3). See also Thompson y. Fairer, L. R. 9 Q. B. D, 372. THE CRIMINAL LAIV. 39 lllmtrvtiong. [(1.) 'A, ii foreigner unacquainted witli the law of England, kills B in a duel in England. A's act is murder, although he may have supposod it to be lawful. (2.) 'A, a poacher, sets wires for game, which are taken by B, a game- keeper, under tiio authority of an Acrt of Parliament (5 Anne, c. i4, s. 4), of the existence of which A is ignorant. A forcibly takes the wires from B, and is tried for robbery. His ignorance of the Act is relevant to the (juestion whether ho took the wires under a claim of right. (3.) ' A is in command of a ship on a voyage, which during its continu- ance is rendered unlawful by the passing of the kidnapping Act, 1872 (35 & 36 Vict. c. ] 9), but A was not aware that the Act had been passed till a considerable time afterwards, and he continued his voyage in igno- rance of the Act. The fact of A's ignorance is relevant to the question w-liether the particular voyage in which A was engaged was one to which tl'ie Act was intended by the legislature to apply. ^Article 34. ignorance of fact, Au alleged oflender is iu general deemed to have acted under that state of facts which he in good faith and on reasonable grounds believed to exist when he did the act alleged to be an offence. When an offence is so defined by statute that the act of the offender is not a crime unless some independent fact co-exists with it, the court must decide whether it was the intention of the legislature that the person doing the forbidden act should do it at his peril, or that his ignorance as to the existence of the independent fact, or his mistaken belief iu good faith and on reasonable grounds that it did not exist, should excuse him. Voluntary or negligent ignorance of any such fact is no excuse for any such offence. ' [Ex parte Barmnet, 1 E. & B. 1. - R. V. Hall, 3 C. k P. 409. In It v. Heed, Car. & Mar. 303, Coleridge. J., said : " Igno- rance of the law cannot excuse any person, but at the same time when the question is with what intent a. person takes, we cannot help looking into his state of mind, as if a person takes what he believes to be his own it is impossible to say he is guilty of felony." '' Bunia V. Mwell, L. R. 5 Q. B. D. 414.J *S.I>, Art.34. 40 A DIGEST OF [In cases of the infliction of bodily harm or restraint for the purpose of arresting or retaking a person honestly and reasonably, but erroneously, supposed to be liable to be arrested or retaken, the person inflicting such harm or restraint is not justifled by such belief, unless the state of facts in the existence of which he erroneously believed would, if it had really existed, have made it his legal duty to act as he did, or would have been such as to make his conduct an act of defence of his person or habitation. Illustratio7is. (1.) ' A, under an insane delusion, kills B. If the delusion is such that its truth would justify him in doing so, his act is not a crime. The delu- sion would also be evidence that A did not know he was doing .wrong even if its truth would not justifj' the act. (2.) - A, making a thrust with a sword at a place where, upon reason- able grounds, he supposes a burelar to be, kills a person who is not a burglar. A is in the same situation as if he had killed a burglar. (3.) ■' A abducts B, a girl under fifteen years of age, from her father's liouse, believing in good faith and on reasonable grounds that B is eigh- teen years of age. A commits the offence of abduction, although if B had been eighteen years of age she would not have been within the statute. (4.) * A, in the last illustration, abducts B, in ignorance of lier age, and • [.W'iV«(7/(toi'« rasc.lOCI. cV- Fin. 200. - Levet'n Case, 1 Ilalc, 474. « R. r. Prince, L. R. 2 C. C K. 151. ■• 11. y. Prince, IhiA. See judgment of LJrett, J., p. 169, and see p. 174. It has been doubted whetber a person commits bigamy who contracts a second marriage under a bona fide belief that the first husband or wife is dead- In K v. Turner, 9 Cox, C. C. 145, Mar- tin, B., directed a jury that if a woman had an honest belief that her husband was dead she was not guilty of bigamy, and this ruling was followed by Cleasby, B., in It- v. Horton. 11 Cox, n. C. 670. In It. V. Gihhom, 12 Cox, C. C 237, Brett, .L, iifter consulting Willes, J., held (si.ys the report) " that a bond fide belief that the husband was dead was no de- fence, unlesL the seven years had passed." In that case- however, the " bond fide belief " appears to have arisen solely from the fact that the woman had not heard of her hus- band for upwards of six years. It was thus a gratuitous belief, founded on ignorance It seems to mo that if the belief was founded on positive evidence the case would bo otherwise. Sui)pose, e.g.. a woman saw her husband fall overboard in the middle of the Atlantic, and saw a boat go out to search for him, and return without him ; suppose that she took out administration to his estate, heard nothing of him for five years, and then married again, would she be guilty of bigamy if by some strange chance he had escaped 1 Surely not. I am informed that this view was taken by Denman, J., and Amphlett, J.A., in a case of It. v. Moore, tried at Lincoln S|)ring Assizes, 1877. I think the proviso in 24 & 25 Vict., c. 100, s. 57] R. S C. 101, s. 4 (b). (Art. 330) [ought clearly to be read not as THE CRIMfNAL LAW. 41 [without makinj; any inquiry about it. A commits the offence of abduction. (5.) > A received into her house, not being a registered lunatic asylum, several persons to be medically treated, being persons who were in fact lunatics, though A honestly believed on reasonable grounds that they were not lunatics but sufferers under other disorders. Notwithstanding such a belief, A committed an offence against 8 ct 9 Vict., c. 100, s. 14. (6.) ^ A, a constable, lioneslly and on reasonable grounds believing B to have committed murder, and not being able otherwise to arrest hinii shoots at him and kills him. A is justified. If A had been a private person his act would have been manslaughter at least. (7.) •' B, pretending by way of a pracitical joke to be a robber, presents an eaipty pistol at A and demands his money. A, believing that B really is a robber, kills B. A is justified. (8.) (Submitted.) A breaks into B's house in Cornwall, at 5.45 a.m., local mean time, supposing that it is past six, but forgetting that A's watch is set to London time. A commits burglary.] [excludiiii' the general common law principle stated in this Article, but as supplementing and completing it, by providing that a second marriagej after seven years' ignorance as to thelife of the first husband or wife, shall not bo criminal, although the party so marrying has no positive reason to believe, and perhaps does not believe, that the absent person is dead.] And it has since been so held. In R. v. Tohon, L. R. 23 Q- B. D. IfiS, in which the question was reserved by Stephen, J., to obtain the decision of the Couri in view of the conflicting opinions of single judges on the point, it was held by Lord Coleridgo, C-J. Hawkins, Stephen, Cave, Day, A. L. Smith, Wills, Grantham and Charles, JJ. (Denman. Field, and Manisty, JJ., .-vnd Pollock and Huddleston, BB., dissenting), that a bond fide belief on reasonable grounds in the death of the husband at the time of the second mar- riage, afforded a good defence to an indictment for bigamy, although the second marriage took place within seven years of the time when she last knew of her husband being alive. > [R. V. Bishoi,, L. R. 5 Q. B. D. 259. 2 2 Hale, P. C. 82,85. ■ 1 Halo, P. C. 474.] 42 A DIGEST OF CHAPTER Y. ' PARTIES TO THE COMMISSION OF CRIMES - PRINCIPAL AND ACCESSORY. -Article 35. principals in first degree. ■^ [Whoever actually commits, or takes part in the actual commission of, a crime is a principal in the first degree, whether he is on the spot when the crime is committed or not ; and if a crime is committed partly in one place and partly in another, every one who commits any part of it at any place is a principal in the first degree. Illustrations. (1.) * A lays poison for B, which B takes in A's absence. A is a prin- cipal in the first degree. (2.) ^ A steals goods from a ship, and lays them in a place at some dis- tance, whence B, by previous concert, carries them away for sale. A and B are both principals in the first degree. '• Article 36. innocent agent. Whoever commits a crime by an innocent agent is a principal in the first degree. > [2 Hist. Cr. Law, oh. xxii, I). 221-241; Draft Code, ss. 71-74.] „ ' 2 S. D., Art. 35. ' [Foster, 347-5D, gives the history of the distinction between prinoipals in the first and second degree. See also Hale, ch.Uxxii. 1 P. C. 233 ; ch. xxxiv. 1 P. C. 435, and oh. Iv. 612. ^ Foster, 349, says simply that A is "a principal," without mentioning the degree, but as no one has "aided" or "abetted," it would Eeem that he must be a principal in the first degree. 6 E. V. Kelly, 2 C. & K. 379.] « S. D., Art. 36. THE CRIMINAL LAW. 48 Illustrations. [(1.) 'A tells B, a child under eeven, to bring him money belonging to C. B does so- A is a principal in the first degree. (2.) "^ A, knowing a note to be forged, asks B, who does not know it to be forged, to get it changed for him. B does so, and gives A the money. A is a principal in the first degree. (3.) " B, in the last illustratioD, knows that the note is forged. A is an accessory before the fact. ^Article 37. principals in the second degree. '' "Whoever aids or abets the actual commission of a crime, either at the place where it is committed, or else- where, is a principal in the second degree in that crime. ^ Mere presence on the occasion when a crime is com- mitted does not make a person a principal in the second degree, even if he neither makes any eflfort to prevent the offence or to canse the offender to be apprehended, but such presence may be evidence for the consideration of the jury of an active participation in the offence. "When the existence of a particular intent forms part of the definition of an offence, a person charged with aiding or abetting the commission of the offence must be shewn to have known of the existence of the intent on the part of the person so aided. Illustrations. (1.) ^ A, B, C, and D go out with a common design to rob. A commits the robbery ; B stands by ready to help ; C is stationed some way off to ' [li. y. Manlev, 1 Cox, C. C. 104 . - R.v. Palmer, muss. Cr. 160. ' H.Y.Soares.K&n.'a.i [See cases in 1 Russ. Or. 156-59. li. v. Kellv, B. & R. 421, perhaps marks the limit between a principal in the second degree and an accessory. In that case B stole horses and brought them to A, who was waiting half a mile o£P; A and B then rode away on them. It was held that A was an accessory before the fact. The distinction is now of no importance. " R. V. Coney and Others, L. R- 8 Q. B. D. 534. See especially the judgmentof Cave, J., 536-43,] li. V. Curtlev, 27 U. C. Q. B. 613. ' [Poster, 850.] 44 A DIGEST OF [give the alarm if any one comes. A is a principal in the first degree, B, C, and D are principals in tlie second degree. (2.) ^ B is indicted for inflicting on C an injnry dangerous to life with intent to murder. A is indicted for aiding and abetting B. A must be shewn to have known that it was B's intent to murder C, and it is not enough to shew that A helx)ed B in what ho did. -Article 88. common purpose. •'' "When several persons take part in the execution of a common criminal purpose, each is a principal in the second degree, in respect of every crime committed by any one of them in the execution of that purpose. If any of the offenders commits a crime foreign to the common criminal purpose, the others arc neither princi- pals in the second degree, nor accessories, unless they actually instigate or assist in its commission. Illustrations. (1.) ^ A constable and his assistants go to arrest A at a liouse in which are many persons. B, C, D, and others come from the house, drive the constable and his assistants ofl', and one of the assistants is killed, either by B, C, D, or one of their party. Each of the party is equally responsible for the blow, whether he actually struck it or not. (2.) '" Three soldiers go to rob an orchard. Tsvo get into a fruit tree. The third stands at the door with a drawn sword, and stabs the owner, who tries to arrest him. The men in the tree are neither principals nor accessories, unless all three came with a common resolution to overcome all opposition. (3.) " Smugglers fight with revenue officers. In the fight a smuggler fires a gun which kills another smuggler. The gun was not fired at any of the revenue officers. The man who fired the gun is responsible for the act, but not his companions. f. 1 [W.v. C/-t«e,8C.&P.546.J 2S. D.,Art.38. " [See cases referred to in the Illustrations. See also Post- 350-2; 1 Russ. Cr. 159-163, 759-67. * Slusinghxirnt Houar Case, 1st Resolution ; 1 Hale, P. C. 462. '' Plummer'a Case, Foster, tS53. More fully reported in Kolynge, 155 (edition of 18"3). Lord Holt in his judgment fully explains the whole law. Ibid. 352.] THE CRIMINAL LAW. 45 [(4.) ' Two parties of persons fight in the street about the removal of goods to avoid a distress. One of the persons engaged kills a looker-on, totally unconcerned in the affray. The other persons present are not responsible for his crime. (5.) '■' Two persons go out to commit theft. One, unknown to the other, puts a pistol in his pocket, and shoots a man with it. The other person is not responsible for the shot. (0.) ^ Three persons go out to practice with a rifle, and manage their practice so carelessly that a person is killed by a bhot fired by one of them : all aro guilty of manslaughter. 'Article 39. accessories before the fact. ' All accessory before the fact is one who " directly or indirectly counsels, procures, or commands any person to commit any felony or piracy ^ which is committed in consequence of such counselling, procuring, or command- ment. Every one who would have been an accessory before the fact if the crime committed, procured, or commanded had been a felony, is a principal if that crime is a misde- meanor. Knowledge that a person intends to commit a crime, and conduct connected with and influenced by such knowledge, is not enough to make the person who pos- sesses such knowledge, or so conducts himself, an acces- sory before the fact to any such crime, unless he does something to encourage its commission actively. Illustrations. ' (1.) "A supplies B with corrosive sublimate, knowing that B means to ^ [R.y. Hodp807i and Others) lliGachiG. ■ Per Park, J., Duffey's Case, 1 Lew. 194. H.;-.S'^<> 3 R. V. Salmon, L. R. 6 Q. B, D. 79.] [ft. V. Taylor, L. R. 2 C. C. R. 147.] 2 S. D. Art. iO. 8 [Foster, 369-70 ; Draft Code, s. 72.] * S. D., Art. «, 6 [Foster, 370.] THE CRIMINAL LAW. 47 [whom he believes to be C, because D corresponds with A's description of C. A is accessory before the fact to the murder of D. ' (2.) A instigates B to rob C, B does so, C resists and B kills C. A is accessory before the fact to the murder of C. ''■ (3.) A advises B to murder C (B's wife) by poison. B gives C a poisoned apple, which C gives D (B's child). B i)ermits D to eat theapple» which it does, and dies of it. A is not accessory to the murder of D. •' Article 42. where instigation is countermanded. ' If an accessory before the fact countermands the execution of the crime before it is executed, he ceases to be an accessory before the fact, if the principal had notice of the countermand before the execution of the crime, but not otherwise. Illustration. * A advises B to murder C, and afterwards, by letter, withdraws his advice. B does murder C. A is not an accessory before the fact if his letter reaches B before he murders C ; but he is if it arrives afterwards. " Article 43. instigation to commit a crime different from the one committed. "When a person instigates another to commit a crime, and the person so instigated commits a different crime, the instigator is not accessory before the fact to the crime so committed. ' [Foster, 370. - Saunders' Case, Plowd. 475 ; 1 Ilalo, P. C. 431. This decision is of higher authority than Foster's dicta, and marks the limit to which they extend, if it does not throw some doubt on them]. 'S. D. Art. 42. ^riHale, P. C. 618. In the case supposed, the instigator would probably have com- mitted the offence of inciting to the commission of a crime (Art. 50), though he would not be an accessory before the fact. It may also be doubted whether this doctrine would ex- tend to the case of a man who did his best to countermand his advice, but failed, as by an accident in the course of post, &c.] "S. D. Art. 43. »[Cf. Draft Code, s. 72.] 48 A DIGEST OF Ilhtslratinn . ' [A instigates Bto murder C, B murders D, A is not aeceHSory before the fact to the murder of D. - Article 44. accessories and principals in second degree treated as principals in first de(}ree. ^Accessories before the fact, principals in the second degree, and principals in the first degree in any felony, are each considered as having committed that felony, and «^ach may be indicted, tried, convicted and punished as if he alone and independently had committed the lelony, although any other party to the crime may have been ac- quitted. 'Article 45. accessories after the fact. '' Every one is an accessory after the fact to felony who knowing a felony to have been committed by another, re- ceives, comforts, or assists him, " in order to enable him to escape from punishment ; or rescues him from an arrest for the felony ; or having him in custody for the felony, intentionally and voluntarily suffers him to escape ; |' K or opposes his apprehension ; ■:':B ProAaded that a married woman who receives, comforts iCFoster.TO.s. l.J - = S.D. Art.44, H24 ife 25 Vict. c. 94,8. ?, as explained by/?, v. Hughes, Boll, C C. 242- The section referred to applies only to cases in which u felony has been committed, and does not affect the common law offence of inciting to commit a felony (Art. 50). 1{. v. Gregory, L. E. 1 C. C. K. 77.] See R. S. C. c. 145, ss. 1, 2, 3 ; 11 & 12 Vict- c. 12, s. 8 ; 24 & 25 Vict. c. 96, s. 98, c. 97, s.56,c. 98, s. 49, c- 99, s. 35; o. 100, s. 67. See also The Poat Office Act (R. S. C. c. 35) s. 110 (4) where it is provided that not only accessories before the fact but accessories after the fact to any felony defined in the Act may be tried as principals. *S.D. Art.45. i^a Rues. Cr. 171-4; 1 Hale, P. C. 618-20 ; 2 Hawk. P. C. Bk. II, c. 29; Dra*" Code, s. 73. *^ As to the addition of these words, see 2 Hawk. P. C Bk.'.II- c. 29, ss. 28-9J. THE CRIMINAL LAW. 49 [or relieves her husband, knowing him to have committed a felony, does not thereby become an accessory after the fact]. ' AliTICLE 46. PUNISHMENT OF ACCESSORIES AFTER THE FACT. - Every one vv^ho becomes an accessory after the fact to any felony, whether the same is a felony at common law or by virtue of any Act, may be indicted and convicted, either as an accessory after the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon has or has not been convicted, or is or is not amenable to justice, and may thereupon be punishod in like manner as any accessory after the fact to the same felony, if convicted as jiu accessory, may be punished. * Every accessory after the fact to .mv felony (except when it is otherwise specially enacted), whether the same is a felony at common law, or by virtue of any Act, shall be liable to imprisonment for any term less than two years. Article 47. where principal felon has been convicted but not attainted. ^ If any principal offender is, in any wise, convicted of any felony, any accessory, either before or after the fact, may be proceeded against in tne same manner as if such principal felon had been attainted thereof, notwithstand- ing such principal felon dies or is pardoned or otherwise delivered before such attainder ; and every such accessory » S. D. Art. 46. 2 R. S. C. c. 145. 8. 4 ; 24 A 25 Vict. c. 94, s. 3. R. v. Fallon L. k C. 217. ' R. S. C. n. 145, 8. 5 ; 24 & 25 Viot. o. 94, s. 4. ♦ R. S. C. c. 145, 8. 6 ; 24 & 25 Viot. c. 94, s. 5. See Art. 15 note (3.) £ 60 A DIGEST OF shall, upon conviction, suffer the same puiiishmont as he would have suffered it' the principal had been attainted. Article 48. misdemeanors. ' Every one who aids, abets, counsels or procures the commission of any misdemeanor, whether the same is a misdemeanor at common law, or by virtue of any Act, is guilty of a misdemeanor and liable to be tried, indicted and punished as a principal offender. Article 49. offences punishable on summary conviction. '^ Every one who aids, abets, counsels or procures the commission of any offence punishable on summary con- viction, either for every time of its commission, or for the first and second time only, or for the first time only, shall, on conviction, be liable for every first, second or subse- quent offence of aiding, abetting, counselling or procur- ing, to the same forfeiture and punishment to which a person guilty of a first, second or subsequent offence as a principal offender, is liable. ' R. S. C. e. 145, 8. 7 ; 24 & 25 Viot. o. 94, s. 8. It. v. Eim mde 23 U. C Q. B. 152. See also R. S. C. c. 35, 8. 110 (4) as to misdemeanors under 2'/te Post Office Act, - R. S. C. c. 145, 8. 8 ; 11 & 12 Viot. c. 43, s. 5 ; 21 & 25 Vict. o. 96, s. 99, and o. 97, s. 63. THE CRIMINAL LAW. 61 CHAPTER VI. • DEGREES IN THE COMMISSION OF CRIME— INCITEMENT— CONSPIRA C Y-A TTEMPTS. ^ Article 50. incitement to commit a crime. ' [Every oue who iuoites any person to commit any crime commits a misdemeanor, whether the crime is or is not committed. ^ Article 51. conspiracy to commit a crime. ' When two or more persons agree to commit any crime, they are guilty of the misdemeanor called conspiracy, whether the crime is committed or not. "Article 52. definition of attempts. ' An attempt to commit a crime is an act done with ' [2 Hist. Cr. Law, oh. xxii, pp. 221-241]. - S. D. Art, 47. See Appendix, Note II. HR.v.Hiffgins, 2 East, 5-22; R.\. Schojkld, Cald. 397; R.V.Gregory, L. R. 1 C.C. 77, III R, V, Leddington, 9 C. & P. 79, a man was charged with inoiting a man to commit suicide, and Aldcrson B.,, directed an acquittal, saying, "This is a case which by law we cannot try." The reasons for this direction are not given, and a note to the case does not make them clear. As to the case of 72. v. IVcMani, see Appendix Note II]. Everyone who incites any Indian to commit any indictable offence is guilty of felony and liable to five years' imprisonment. (R. S. C. c. 43, s. 112). Inciting a woman falsely to make an affidavit under C. S. U- C. c. 77, s. 6, that A is the father of her illegitimate child is a misdemeanor : R. v. Clement, 26 U. C. Q, B. 297. S. D. Art. 51. •-' [25 Edw. 3, St. 5, 0. 2 ; 36 Geo. 3, o. 7, 88. 1, 6 ; 57 Geo. 3, c. 6 ; U & 12 Vict, c 12, p. 3 ; Draft Code, s. 75.] R. S- C. o. 146, as. 1, 9. THE CRIMINAL LAW. 5& ' Article 55. WHAT AMOUNTS TO IMAGINING THE QUEEN'S DEATH. ^ Every one is deemed to have formed an intention to put the Queen to death who forms and displays by any overt act an intention, [a.) to depose the Queen from the exercise of her royal authority in any part of her dominions ; or {b.) to levy war against the Queen either in the first or in the second of the senses assigned to that expression in Article 56 ; or (c.) to instigate any foreigner with force to invade this realm or any other of the Queen's dominions ; or {d.) who conspires to levy war against the Queen in the first or second, but not in the third, of the senses assigned to that expression in Article 56. ^Article 56. HIGH treason by LEVYING WAR. * Every one commits high treason who levies war against the Queen in any of her dominions. 1 S. D. Art. 52. - [Foster's Discourse of II. T. ch. i, ss. 1-5, pp. 193-7 ; ch. ii, ss. 3, 4, 6, rp. 211-13 ; Draft Code, s. 75.] ^iS-D-ArtSS. M25 Edw. 3, st. 5, 0. 2 ; Foster's Discourse on H. T. oh. ii, as to (a) see Foster, pp. 208 and 209; as to (6.) see f>. 3; and see 36 Geo. 3, o. 7, s. 1, which, whilst in force, was a statutory recognition of Foster's doctrine : as to (c.) s. 4 : as to the proviso, seo 25 Edw. 3, St. 5, 0. 2, and Foster, pp. 209-10; seo also Note V., and Draft Code, 8. 75. In R.\. GaWaffAeranrfofAer«, 15 Cox, 291, it was held by Coleridge, C.J., Brett, M.R., and Grove, J., that war might be levied by a few persons using, for treasonable purposes, explosives calculated to do great damage. I held the same at Liverpool in the summer of 1883, in It. V. DeS.D Art. 58. - [as Edw. 3, St. 5, c. 2, as explained by Hale, Draft tode, s. 75.] As a matter of historical interest only it maybe observed that every one commits high treason who slays the Chancellor of England, or the treasurer, or the king's justices of the one bench or the other, justices in eyre or justice of assize being in their places doing their offices; and that by 13 Eliz. c. 2, and other statutes of the same and succeeding reigns a number of acts, suoh as putting in ure a Popish Bull , were made high treason. See 1 Hawk, o, 2, s. 95 et »eg : S. D. Art. 59 and note ; 2 Hist. Cr. Law, 261 et seq, " S. D. Art. 60, which has the following exception and note :— [But Her Majesty may (if theoffender is a man) direct by a warrant signed by one of her principal Secretaries of State, that instead thereof such offender's head shall.be severed from his body whilst alive. For common law judgment see Chitty, Crim. Law, 365-6. It was modified by 30 Geo. 3, c. 48, as to women (who before that Act were liable to be burnt alive for treason) aa to mp" by 54 Geo. 3, o . 146, and 33 & 34 Vict, c . 23, s. 31 . The odd exception made in th e parenthes.d arises thus : the Act 30 Geo. 3, c. 48, applies only to women, and the 54 Geo. 3, c. 146, only to men. The proviso as to beheading occurs in the second only. The Act of 1870 repeals parts of the Acts of 1790 and 1814. It would seem, however, that the power exists at common law. See Foster 269-70 The Act (31 & 32 Vict. c. 24) for executing sentence of death within gaols does not apply to cases of treason. Indeed 88- 2 and 16 together appear to exclude its operation in such oases. An execution for treason would, there- fore, it would seem, have to be public. Sir E. Coke's Scriptural reasons for the punish- ment of treason may be seen in 3 Inst . 211. Cf . Draft Code, s. 75]. See R. S. C. o. 181, s. 10 which is general and not limited to cases of murder- ^ R. S. C. c. 181, B. 5. m A DIGEST OF ^ Article 64. all principals in treason. ^ [Every person who in the case of felony would be au accessory before or after the fact is in the case of high treason a principal traitor, "* but a person who knowingly comforts or receives a traitor so far partakes of the nature of an accessory that he cannot be tried till the principal is convicted.] ' Article 65. treasonable felonies. ' Every one is guilty of felony, and liable to imprison- ment for life [who ^ forms any of the intentions hereinafter mentioned, and expresses such intention either by any overt act or by publishing any printing or w^riting,] or by open and advised speaking, [that is to say, (a.) an intention to depose the Queen, her heirs or suc- cessors, from the style, honour, and royal name of the Imperial Crown of the United Kingdom or of any other of Her Majesty's dominions or countries ; or (b.) an intention to levy war against Her Majesty, Her heirs or successors, within any part of the United Kingdom] or of Canada, [in order by force or constraint to compel her] or them [to change her] or their [measures or counsels, or in order to put any force or constraint upon, or in order to intimidate or overawe, both houses or either house of Parliament] of the United Kingdom or of Canada, [or (c.) an intention to move or stir any foreigner with force to invade the United Kingdom] or Canada, [or any » S. D. Art. 61. » [Poster, 343, and see 341-G. 3 1 Hale, P. C, 238 ; Foster, 3io-G ; and see 2 Hist. Cr. Law]. ♦ S. D. Art. 62. 6 R. S. C. c. 146, 9. 3 ; 11 & 12 Vict. c. 12, ?. 3, Ji. v. Sl R. S. C. 0. 153, 8. 3. «R.S.C. 0.153, 8.4. "R. S. C.o.l63,i.5. 68 A DIGEST OF fight without the limits thereof, is guilty of a misde- meanor, and liable, on summary conviction, to a penalty not exceeding four hundred dollars and not less than fifty dollars, or to imprisonment for a term not exceeding six months, or to both. Article 80. where the fight is not a prize fight — discharge or FINE. ^ If, after hearing evidence of the circumstances con- nected with the origin of the fight or intended fight, the person before whom the complaint is made is satisfied that such fight or intended fight was bond fide the conse- quence or result of a quarrel or dispute between the principals engaged or intended to engage therein, and that the same was not an encounter or fight for a prize, or on the result of which the handing over or transfer of money or property depends, such person may, in his discretion, discharge the accused or impose upon him a penalty not exceeding fifty dollars. ^ Article 81. AFFRAY. ' [An afiray is the fighting of two or more persons in a public place to the terror of Her Majesty's subjects.] * Every one who commits an afiray is guilty of a mis- demeanor and liable, on summary conviction, to three months' imprisonment. — » R. S. C. 0. 163, B. 9. «S. D. Art.69. 3 [3 Ingt. 158 ; 1 Russ. Cr. 366 ; Draft Code, a. 96.] « R. S. C. 0. 147, a. 14. THE CRIMINAL LAW. * Article 82. unlawful assembly. ^ [An unlawful assembly is an assembly of three or more persons : — (a.) with intent to commit rime by open force ; or {b.) with intent to carry oat any common purpose, lawful or unlawful, in such a manner as to give firm and courageous persons in the neighborhood of such assembly reasonable grounds to apprehend a breach of the peace in consequence of it.] ^ Every member of an unlawful assembly is guilty of a misdemeanor and liable to two years' imprisonment. Illustrations. [ (a.) * Sixteen persons met for the purpose of going out to commit the oflFence of being by night, unlawfully, upon land, armed in pursuit of game. This is an unlawful assembly. (6.) * A, B, and C meet for the purpose of concerting an indictable fraud. This, though a conspiracy, is not an unlawful assembly. (c.) " A, B, and C having met for a lawful purpose, quarrel and fight. This (though an affray) is not an unlawful assembly. {d.) ' A large number of persons hold a meeting to consider a petition to parliament lawful in itself, but they assemble in such numbers, with such a show of force and organization, and when assembled make use of such language, as to lead persons of ordinary firmness and courage in the neighborhood to apprehend a breach of the peace. This is an unlawful assembly.] ' S. D. Art. 70. -fBrook's Abt. "Riot"; Viner's Abt. " Riot"; Lambarde, c. v. 172-184; Dalton, pp. 310-14; 1 Hawk, P. C. 513-16, See also Report of Criminal Code Commission of 1879, p. 20, and Draft Code, ss. 81-86.]. R. S. C. c. 147, s. 11, the words of which are " With intent " unlawfully to execute any common purpose with force and violence, or in a manner " calculated to create terror and alarm." See R. v. Oraham, 16 Cox C. C. 420; li. v. Bums, 16 Cox C. C. 355. ='R.S.C.c.l47,s.ll. * [R. V. Brodribb, 6 C. S. D. Art. 74. = K. S. C. c. 147, 8. 9; [24 & 25 Vict. c. 97, s. 11 (redrawn) ; Draft Code, s. 90]. li. v. Elston, 5 All. 2 was decided under the repealed statute R. S. N. B. o. 147, s. 1 which did not make the riotous assembly a necessary ingredient of the offence. -' " Building " means any church, chapel, meeting-house, or other place of divine worship, house, stable, coach-house, out-house, warehouse, office, shop, mill> malt* house, hop-oast, barn, granary, shed, hovel, fold, and any building or erection used in farming landi or in carrying on any trade or manufacture, or any branch thereof, and also any building other than those above mentioned, belonging to the Queen, or to any county, municipality, riding, city, town, village, parish or place, university, college, or hall of any university, or to any corporation, unincorporated body, society or persons associated for lawful purposes, or devoted or dedicated to public use or ornament, or erected or main- tained by public subscription or contribution. " Machinery " means any machinery, whether fixed or movable, prepared for, or em- ployed in, any manufacture, or in any branch thereof. " Mining plant " means any steam-engine, or other engine for sinking, working, ventilating, or draining any mine, or any staitbt building, or erection used in conducting the business of any mine, or any bridge, waggon-way, or track for conveying minerals from any mine. *S.DA.rt.76. 1* R. S. C. c. 147, 8. 10 ; [24 & 25 Viot. c. 97, s. 12 (redrawn) ; Draft Code, s. 91J. THE CRIMINAL LAW. 73 Article 88. inciting indians to riotous acts. ' Every one is guilty of a misdemeanor and liable to two years' imprisonment who induces, incites or stirs up any three or more Indians, non-treaty Indians, or half- breeds apparently acting in concert, (a.) to make any request or demand of any agent or servant of the Government in a riotous, rontons, dis- orderly or threatening manner, or in a manner calculated to cause a breach of the peace ; or (6.) to do any act calculated to cause a breach of the peace. '' Article 89. "'forcible entry and detainer. [Every one commits the misdemeanor called a forcible entry who, in order to take possession thereof, enters upon any lands or tenements in a violent manner, whether such violence consists in actual force applied to any other pe^* son or in threats, or in breaking open any house, or in collecting together an unusual* number of persons for the purpose of making such entry. It is immaterial ^ whether the person making such an entry had or had not a right to enter, provided that a per- son who enters upon land or tenements of his own, but which are in the custody of his servant or bailiff, does not commit the offence of forcible entry. ^ R. S. C. 0. 43, B. Ul. 'S.D. Art.79. •' [1 Russ. Cr. 404-417; 1 Hawk. P. C. 495-512. There are many statutes in force on the subject, viz. 5 Ric. 2, st. 1, c. 7 (8 in common editions) ; 15 Rio. 2, o. 2; 8 Hen. 6, c. 9 ; 31 Eliz. c. 11 ; 21 Ja. 1, c. 15. These statutes gire no definition of the offence, but provide a mode of procedure for giving possession to the party forcibly dispossessed. It is curious to compare these provisions with the Indian Code of Criminal Procedure, Act X, of 1872, o. 40. See on forcible entry. Lows v. Telford, L. R. 1 App. Cas. 414. Draft Code, s. 95.] R. V. Martin, 10 L. C. R. 435 ; Bertram V. Bonham, 3 R. & C. 600. * if. V. ^mi R. S. C. c. 150, s. 4 i 46 Vict. c. 3 s. 3. - R. S. 0. c. 150, 8. 5 ; 46 Vict. c. 3, ss. 4, 7 (1). THE CRIMINAL LAW. 11 If any person is charged before a justice of the peace with any such oifence, no further proceeding shall be taken against such person without the consent of the Attomey-G-eneral, except such as the justice of the peace thinks necessary, by remand or otherwise, to secure the safe custody of such person. Article 95. carrying pistol without reasonable cause. ' Every one who has upon his person a pistol or air gun without reasonable cause to fear an assault or other injury to his person or his family or property, may, upon complaint made before any justice of the peace, be required to find sureties for keeping the peace for a term not exceeding six months ; and in default of finding such sureties, may be imprisoned for any term not exceeding thirty days. Article 96. having a pistol on person when arrested. ^ Every one who when arrested, either on a warrant issued against him for an offence or whilst committing an offence, has upon his person a pistol or air-gun, shall, on summary conviction before two justices of the peace, be liable to a penalty not exceeding fifty dollars and not less than twenty dollars, or to imprisonment for any term not exceeding three months. ' R. 8. C. 0. 148, R. 1. The time within which a proseoution may be commenced for any offence defined in Articles 95-100, and 102, is limited to one month ; (s. 9). ^ R. S. 0. 0. 148, s. 2. As to the punishment of any person found loitering near any ship, and being at the time armed) and not giving a satisfactory account of himself, see R. B.C. 0.74. 8. 87, Art. 251. IS A DIGEST OF Article 97. having a pistol on the pek80n with intent to injure any person. * Every one who has upon his person a pistol or air- g:un, with intent therewith unlawfully and maliciously to do injury to any other person, shall, on summary con- viction before two justices of the peace, be liable to a penalty not exceeding two hundred dollars and not less than fifty dollars, or to imprisonment for any term not exceeding six months ; and the fact of the pistol or air- gun being on the person shall be primd fane evidence of such intent. Article 98 pointing any firearm at any person. - Every one who, without lawful excuse, points at another person any firearm or air-gun, whether loaded or unloaded, shall, on summary conviction before two jus- tices of the peace, be liable to a penalty not exceeding fifty dollars and not less than twenty dollars, or to imprisonment for any term not exceeding thirty days. Article 99. carrying offensive weapons about the person. ^ Every one who carries about his person any bowie- knife, dagger or dirk, or any weapons called or known as iron-knuckles, skull-crackers or slung shot, or other offen- sive weapons of a like character, or secretly carries about his person any instrument loaded at the end, or sells or exposes for sale, publicly or privately, any such weapon, > R. S. 0. 0. 148, s. 3. - R. S. C. 0. 148, 8. 4. « R. S. C. c. 148, 8. 5. THE CRIMINAL LAW. T9 shall, on summary conviction beloro two justices of the peace, be liable to a penalty not exceeding fifty dollars and not less than ten dollars, and in default of payment thereof to imprisonment for any term not exceeding thirty days. Akticle 100. CARRYINO SHEATH-KNIVErt IN SEAPORTS. ' Every one, not being a seaman or rigger occupied or engaged in his lawful trade or calling, who is found, in any of the seaport towns or cities of Canada, carrying about his person any sheath-knife, shall, on summary conviction before two justices of the peace, be liable to a penalty not exceeding forty dollars and not less than ten dollars, and in default of payment thereof to imprison- ment for any term not exceeding thirty days. ^Article 101. GOlNa ARMED SO AS TO CAUSE FEAR. ^ [Every one commits a misdemeanor who goes armed in public, without lawful occasion, in such a manner as to alarm the public] Article 102. TWO OR more persons OPENLY CARRYING DANGEROUS WEAPONS SO AS TO CAUSE ALARM. * If two or more persons openly carry dangerous or un- usual weapons in any public place, in such a manner and under such circumstances as are calculated to create terror 1 R. S. C. 0. 148, s. 6. 2 S. D. Art. 68. " [2 Edw. 3, c. 3. paraphrased with reference to the explanations given in 1 Hawk. P. C. 488-9.] *R. 8. Co. 148,8.8. 80 A DIGEST OF and alarm, each of such persons is liable, on summary conviction before two justices of the peace, to a penalty not exceeding forty dollars and not less than ten dollars, and in default of payment to imprisonment for any term not exceeding thirty days. Article 103. exception as to soldiers, etc. ' It is not an offence for any soldier, sailor or volunteer in Her Majesty's service, constable or other policeman, to carry loaded pistols in the discharge of his duty. Article 104. HAVING possession OF ARMS FOR PURPOSES DANGEROUS TO THE public PEACE. ^ Every one is guilty of a misdemeanor and liable to five years' imprisonment '^ who has in his custody or pos- session,* or carries,'' any arms " for any ipurpose dangerous to the public peace. Article 105. refusing to deliver offensive WEAPON TO A JUSTICE. ^ Every one attending any public nieeting or being on his way to attend the same who, upon demand made by any justice of the peace within whose jurisdiction such 1 R. S. C. 0. 148, s. 10. ' R. S. C. 0. 149. The prosecution must be commenced within six months after the offence is committed ; (s. 6). 3 Art. 17. ♦R.S.C.c.149,8.2. '> Ibid. s. 4. * The exprossion " arms " includes any pilce, pike-head, spear, dirk, dagger, sword, pistol, gun, rifle or other weapon, gunpowder, lead, cartridges, bullets and other ammn- nition or munitions of war ; (R. S. C* o. 149, s. 1.) 7R.S.C.o.l52,8.1. THE CRIMINAL LAW. 81 public meeting is appointed to be held, declines or re- fuscH to deliver up, peaceably and quietly, to such justice of the peace, any ' oftensive weapon with which he is armed or which he has in his possession, is guilty of a misdemeanor. The justice of the peace may record the refusal and ad- judge the offender to pay a pinialty not exceeding eight dollars, or the offender may be proceeded against by in- dictment as in other cases of misdemeanors. Article 106. coming armed within two miles of public meeting. ^ Every one except the shcritF, deputy sheriff and justices of the peace for the district or county, or the mayor and justices of the peace for the city or town respectively, in which any public meeting is held, and the constables and special constables employed by them, or any of them, for the preservation of the public peace at such meeting, who, during any part of the day upon which such meeting is appointed to be held, comes within two miles of the place appointed for such meet- ing, armed with any offensive weapon, is guilty of a mis- demeanor, and liable to a penalty not exceeding one hundred dollars, or to imprisonment for a term not ex- ceeding three months, or to both. Article 107. LYING IN wait FOR PERSONS RETURNING FROM PUBLIC MEETING. ^ Every one is guilty of a misdemeanor and liable to a penalty not exceeding two hundred dollars, or to im- ' " Offensive weapon " in Articles 105, 108, 108 and 109 moans fire-arms, swords, staves, bludgeons and the like. * R. S. 0. 0. 152, 8. 5. 3 R. S. C. 0. 152, s. 6. O 82 A DIGEST OF prisonment for a term not exceeding six months, or to both, who lies in wait for any person returning, or ex- pected to return, from any such public meeting, with in- tent to commit an assault upon such person, or with in- tent, by abusive language, opprobrious epithets or other offensive demeanor, directed to, at or against such person, to provoke suoh person, or those who accompany him, to a breach of the peace. Aeticle 108. . refusing to deliver offensive weapons to return- ing officer. . ■ ^ Every one who on nomination day, or on any day whereon any poll is holden for the election of a member to serve in the House of Commons of Canada, or under The Canada Temperance Act, on demand made by any re- turning officer or deputy returning officer, within half a mile of the place of nomination or polling, refuses to de- liver to such officer any offensive weapon in his posses- sion, is liable to a penalty of one hundred dollars ^ and in default of payment to three months' imprisonment. Article 109. : > ; coming armed into polling district, or within one mile of polling place. ^ Every one is guilty of a misdemeanor and liable to a penalty of one hundred dollars or three months' imprison- ment, or both, (a.) who, being within a polling district during any part of a day on which a poll for any such election as mentioned in the next preceding Article is being holden, iR.S.C. c. 8, 8.76; c. 106,8. 6J. ' As to the manner of enforoing the penalty see p. 128 note 2. As to the limitation of time for instituting proceedings see R. S. C. c. 8, s. 117 ; o. 106, g. 00. 3 R. S. C. 0. 8, ss. 78, 82 ; o. 106, ss. 70, 73. THE CRIMINAL LAW. 83 arms himself with any offensive weapon and thus armed approaches within one mile of the polling place ; or (6.) who, not being one of the persons described in the note hereto/ during any part of the day upon which any such poll is to remain open, comes into the polling dis- trict armed with any offensive weapon. Article 110. smugglers carrying offensive weapons. ^ Every one is guilty of felony and liable to imprison- ment for life^ who is found with any goods liable to seizure or forfeiture under any law relating to the customs, trade or navigation and carrying offensive arms "r weapons or in any way disguised. Article 111. sale of arms in the north-west territories. * Every one is guilty of a misdemeanor and liable, on summary conviction before two justices of the peace,' to a penalty of two bundled dollars or to six months' im- prisonment, or to both, who during any time when, and within any place in the North-West Territories where, section one hundred and one of The North- West Territories Act is in force, [a.) without the permission- in writing (the proof of ^ The statute'excepts the following persons ; the returning officer, deputy returning officer, any constable or special constable appointed by the returning officer or his deputy for the preservation of peace at the election, and any person who has had a stated residence in the polling district for at least ^'X months next before the day of elec- tion, and, in the case of the election of a membei to serve in the House of Commons, the poll clerk. 2 R. S. C. c. 32, 8. 213. 3 Art. 17. * R. S. C c. 50, 1. 101. As to the power of the Superintandent-Qeneralof Indian Affairs to prohibit a^y sale, gift or other disposal to any Indian in Manitoba or the Territories of fixed ammunition or ball cartridge, and the punishment of offenders, see R.S. C.c. 43, s. 113. "" Or a Judge ot the Supreme Court." o2 84 A DIGEST OF which shall be on him) of the Lieutenant-Grovernor, or of a commissioner appointed by him to give such permission, has in his possession or sells, exchanges, trades, barters or gives to or with any person, any ^ improved arm or am- munition ; or {b.) having such permission, sells, exchanges, trades, barters or gives any such arm or ammunition to any per- son not lawfully authorized to possess the same. Article 112. possessing weapons near public works. ^ Every one employed upon or about any public work, within any place in which the ^ Act respecting the preserva- tion of peace in the vicinity of public works is then in force, who, upon or after the day named in the proclamation by which such Act is brought into force, keeps or has in his possession or under his care or control, within any such place, any * weapon, is liable on summary convic- tion, to a penalty noi exceeding four dollars and not less than two dollars for every such weapon found in his possession. Every one who, for the purpose of defeating the said Act, receives or conceals, or aids in receiving or conceal- ing, or procures to be received or concealed within any place in which the said Act is at the time in force, any weapon belonging to or in custody of any person em- ployed on or about any public work, is liable, on summary 1 " Improved arm " in this connection moans any arm except a smooth bore shotgun ; and " ammunition " means fixed ammunition or ball cartridge. 2R. S.C.c. 151, ss. 1,5,6, 21. " The expression " Act " means such sections thereof as are in force by virtue of the proclamation, and the provisions of the article would not be in force unless sections five and six were included in such proclamation. * The expression " weapon " includes any gun or other firearm, or air-gun or any part thereof, or any sword, sword-blade, bayonet, pike, pike-head, spear, spear-head, dirk, dagger, or other instrument intended for cutting or stabbing, or any steel or metal knuckles, or other deadly or dangerous weapon, and any instrument or thing intended to be used as a weapon, and all ammunition which may be used with or for any weapon. THE CRIMINAL LAW, 85 conviction, to a penalty not exceeding one hundred dol- lars and not less than forty dollars. ' Article 113. - :-.-::'\:.-. '..-;:■;■ ^^^^ ^"^■'' sale, etc., of liquors near public works. ^ Upon and after the day named in any proclamation putting in force in any place an Act respecting the preservation of peace in the vicinity of public works and during such period as such proclamation remains in force, no person shall, at any place within the limits specified in such proclamation, sell, barter, or directly or indirectly, for any matter, thing, profit or reward, ex- change, supply or dispose of any intoxicating liquor ; nor expose, keep or have in possession any ^intoxicating liquor intended to be dealt with in any such way : The provisions of this article do not extend to any per- son selling "intoxicating liquor by wholesale and not re- tailing the same, if such person is a licensed distiller or brewer. Every one who, by himself, his clerk, servant, agent or other person, violates any of the foregoing provisions, is liable, on a summary conviction for a first offence, to a penalty of forty dollars and costs, and, in default of pay- ment, to imprisonment for a term not exceeding three months, — and on every subsequent conviction, to the said penalty and the said imprisonment in default of payment, and also to further imprisonment for a term not exceeding six months. Every clerk, servant, agent or other person who, being in the employment of, or on the premises of, another per- son, violates or assists in violating any of such provi- ' R. S. C. c. 151, as. 1, 13, 14, 15, 21. As to tho meaning of the word " Act," see note (3) to Art. 112. -The expression " intoxicating liquor" means and includes any alcoholic, spirituous, vinouS) fermented or other intoxicating liquor, or any mixed liquor, a part of trhioh is spirituous or vinous, fermented or otherwise intoxicating. 86 A DIGEST OF sions, for the person in whose employment or on whose premises he is, is equally guilty with the principal offender, and liable to the same punishment. Article 114. intoxicating liquors on board her majesty's ships. ^ Every one who, without the previous consent of the officer commanding the ship or vessel, — (a.) conveys any spirituous or fermented liquor on board any of Her Majesty's ships or vessels ; (b.) approaches or hovers about any of Her Majesty's ships or vessels for the purpose of conveying any such liquor on board the same ; (c.) gives or sells to any man in Her Majesty's service, on board any such ship or vessel, any spirituous or fer- mented liquor ; Is guilty of a misdemeanor and liable, on summary conviction before two justices of the peace, to a fine not exceeding fifty dollars for each oftence, and in default of payment to imprisonment for a term not exceeding one month. ' 50 "Ship, vessel, or boat."] 2 " As captain, master, mate, petty officer, surgeon, supercargo, seaman, marine, or ser- vant, or in any other capacity."] »S.D. Art.n4. H5Geo. 4. 0.113, s. 9, redrawn.] As to punishment see 7 Wm. 4 & 1 Vict. o. 91, s. 1, and Art. 140 note. THE CRIMINAL LAW. 107 [dent orbeingin any of Her Majesty's dominions ' commits piracy, felony, and robbery, and is liable] to imprison- ment for three years and perhaps for life [who upon the high seas, or in any place where the admiral has juris- diction, knowingly and wilfully does or assists in doing any of the following things, that is to say : — {a.) Who carries away, conveys, or removes any person as a slave ; or for the purpose of his being imported or brought as a slave into any ^ place whatsoever ; or for the purpose of his being used, transferred, sold or dealt with as a slave, or [b.) Who ships, embarks, receives, detains, or confines any person on board any vessel for the purpose of his being carried away, conveyed, or removed as a slave ; or for the purpose of his being imported or brought as a slave into any " place whatsoever ; or for the purpose of his being sold, transferred, used, or dealt with as a slave. ' Article 144. punishment of slave-trading. . . , ^Everyone f owing allegiance to Her Ma,jesty) com- mits felony, and is liable] to imprisonment for a term not exceeding five years and not less than three years [who (in any part of the world) does any of the acts of slave- trading specified in Article 142, clauses (a), (&.), (c), {d.), (e.) ; or knowingly and wilfully does any of the acts of slave- ^ [" Dominions, ports, settlements) factories, or territories now or hereafter belonging to Her Majesty, or being in Her Majesty's occupation or possession . " ""Island, colony, country, territory, or place."] • "S.D.Art. Ho. •* [5 Geo. 4, c. n3, s. 10 (redrawn), ^ These words are inserted to give the effect of R. v. Zulucta, 1 C. & K. 215, 226-7. See, however, Santos v. Illidge, 8 C. B. (N.S.) 861, in which the Court of Exchequer Chamber was equally divided upon a very similar though not identical point.] 108 A DIGEST OF [trading specifiod in Article 142, clauses (/.), (g*.), (/«.), (t.), or {k.) ^ Aeticle 145. serving on a slave-ship, felony. ^ Every one commits the same offence, and is liable to the same punishment, as is specified in the last Article, who takes charge or command, or navigates, or embarks on board any vessel as captain, master, mate, surgeon, or supercargo, or contracts to do so, knowing that such vessel is actually employed, or is on that voyage or occasion intended to be employed, in any act of slave-trading. ^ Article 146. serving on a slave-ship, misdemeanor. ■* Every one commits a misdemeanor, and is liable to two years' imprisonment, who with the knowledge mentioned in the last Article does any of the things mentioned in that Article, as petty officer, seaman, marine, or servant, or in any other capacity not specifically men- tioned therein.] 1 S. D. Art. 116. 2 [5 Geo. 4, 0. 113, c.lO.] 8 8. D. Art. 117. *[5Geo.4,o.ll3, a. 11.] THE CRIMINAL LAW. 109 TART III. ABUSES AND OBSTRU(rriONS OF PUBLIC AUTHORITY. CHAP. XII. — AnusBs of Author- ity — Oi'i'imssiON — Extortion — Fkaii)— NFXiLixrr of Duty— Rh- FUSA I, TO Act. CHAP. XIII. — Disobedience to Lawful Orders. CHAP. XIV.— Bribery and Cor- Rui'TioN — Sale of Offices. CHAP. XV. — Misleading Justice — Perjury— False Swearing — Subornation — Administering Extra-.! UDiciAL Oaths. — False Certificate as to Execution. CM A K XVI. — EscAi'B — Rescue — Prison Breach — Misi'Risions — Compounding Offences — Taking OR Advertizing Rewards for Recovery of Stolen Peoi'brty. CHAPTER XII. ABUSES OF AUTHORITY, OPPRESSION, EXTORTION, FRAUD, NEGLECT OF DUTY— REFUSAL TO ACT. Article 141. " PUBLIC OFFICER " DEFINED. ^ [The expression " public olScer," in this chapter, means a person invested with authority to execute any public duty, and legally bound to do so, but does not in- clude any member of either House of Parliament as such, or any ecclesiastical, naval, or military officer acting in the discharge of duties for the due discharge of which he can be made accountable only by an ecclesiastical, naval, or military court. » S. D. Art. 118. ° [See 7 Rep. Crim. Law Cre. o. iv. p. 153, and cf. 5 Rep. Crim. Law Crs. p. 40. It would be foreign to the purpose of this work to discuss the question of the limits of the jurisdic- tion of the Courts of Common Law. and Ecclesiastical and Military Courts.] 110 A DIGEST OF ^Aeticle 148. EXTORTION AND OPPRESSION BY PUBLIC OFFICERS. ^ [Every public officer commits a misdemeanor who, in the exercise, or under color of exercising the duties of his office, does any illegal act, or abuses any discretionary power with which he is invested by law from an impro- per motive, the existence of which motive may be inferred either from the nature of the act, or from the circum- stances of the case. But an illegal exercise of authority, caused by a mistake as to the law, made in good faith, is not a misdemeanor within this Article. ^ If the illegal act consists in taking under color of office from any person any money or valuable thing which is not due from him at the time when it is taken, the offence is called " extortion." If it consists in inflicting upon any person any bodily harm, imprisonment, or other injury, not being extortion, the offence is called " oppression." ( Illustrations. (l.) *The Lord Chief Justice of England passes upon B and C sen- tences for similar offences so disproportionate as to show partiality. He commits oppression. (2.) *The Governor-General of India wrongfully compels a native prince to pay sums of money to the Indian government. He commits extortion. 1 S. D. Art. 119. 2 [li. V. Wyat, 1 Salk. 380; 7?. v. BembriJge, 3 Doug. 327, and 22 St. Tr. 1-159; Bacon, Abridgment, tit. " Offioo and Officer," N. ; R. v. Borron, 3 B. & Aid. 434 ; and see cases referred to in the Illustrations.] » li. V. Tisdale, 20 U. C. Q. B. 272 ; Parsons v. Crabbe, 31 U. C. C. P. 151. * r4th A:tiolo of impeaohmenl, against Sorogfcs, C.J., 8 St. Tr. 199. ' This was the gist of the Cheyte Singh charge in the impeachment of Warren Hast- ings. It is remarkable that neither in Debrett's History of the Trial, nor in Mr. Mill's History of India, nor in Lord Maoaulay's elaborate Essay on Warren Hastings, nor in Marshman's History of India, are the charges against Hastings distinctly stated. It seems to a lawyer natural to give at least an abstract of the indiotment in order to render an account of a trial intelligible, but historians are apt to take a different view. Lord] THE CRIMINAL LAW. Ill [(3). ' A and B, justices of the peace, refuse licenses to tlie keeper's of public houses, because thoy refuse to vote as the justices wish. A andB commit oppression. (4.) ^ A, a justice of the peace, sends his servant to the house of correc- tion for being .«aucy and giving too much corn to his horses. A commits oppression. (5.) ■' A, a justice, acting as such, orders B to be whipped, without such proof or information as the law requires. A commits oppression. (G.) ' A, a constable, having B in custody on a warrant for an assault obtains money from B upon color and pretence that A will procure the warrant to be discharged. A commits extortion. (7.) "A, a justice, commits B,a pauper, to prison for refusing to answer (questions wnich A had a right to put as to B's settlement, believing in good faith that A had a legal right to commit B. A does not commit a misdemeanor. (8.) •'A, a justice, illegally refuses to accept bail for a person entitled to be bailed, under an opinion, hastily adopted in a crisis of real danger, that it was right to do so. A does not commit a misdemeanor. ^Article 149. frauds and breaches of trust by officers. * Every public officer commits a misdemeanor who, in the discharge of the duties of his office, commits any fraud or breach of trust affecting the public, whether such fraud or breach of trust would have been criminal or not if committed against a private person. [Macaulay in particular is so muoh interested in Burke's rhetoric that he omits to say what it was all about. In Mr. Massey's History of George III., vol. iii. p. 337, Burke's summary of the ten charges which he opened is given, but Mr. Massey observes that only one of the ten was distinct and substantive. The transactions with Cheyte Singh are described in Miil's British India, iv. 321, &o., in Lord Macaulay's Essays, p. 620 (ed. of 1850), and in Mnishman's History, i. 424. 1 R. V. WilUavu, 3 Burr. 1317. * R. V. Okeu, 8 Mod. 46. According to R. v. Morfit, Rus. & R. 307, decided long after- wards, A might have committed his servant for theft. " See precedent of indictment, 2 Chit. Crim. Law, 236. * Precedent of indictment, 2 Chit. Grim. Law, 293. .„_-_.-- -_—,—- ^ R. T. Jackson, 1 T. R. 653. . ' " iZ. V. JSac/ffec, 4 Q. B. 475.] ' S. D. Art. 121. ' [See cases in Illustrations.] As to telegraph operators divulging, without lawful authority, the contents of telegrams, see R. S. C. c. 134, ss. 3, 4. 112 A DIGEST OF Illustrations. [(1.) ' A, an accountpnt in the oftice of the Paymaster-General, fraudu- lently omits to make certain entries in his accounts, whereby he enables the caehier to retain large sums of money in his own possession, and to appropriate the interest on such sums to himself after the time when they ought to have been paid to the Crown. A commits a misdemeanor. (2.) ^ A, a commissary-general of stores in the West Indies, makes con- tracts with B to supply stores, on the condition that B should divide the profits with A. A commits a misdemeanor. ^ Article 150. neglect op official duty. * Every public officer commits a misdemeanor who wilfully neglects to perform any duty which he is bound either by common law or by statute to perform, provided that the discharge of such duty is not attended with greater danger than a man of ordinary firmness and activity may be expected to encounter. Illustrations. (1.) ^ A, the mayor of B, neglects to perform various acts which it was in liis power to do, and which a man of ordinary prudence, firmness, and activity, might have been expected to do, in order to suppress riots in B. A is guilty of a misdemeanor. (2.) ® A, the Lord Mayor of London, refrains from making the procla- mation in the Riot Act, and from ordering soldiers to disperse a mob> because he is afraid to do so, in circumstances in which a man of ordinary courage would not have been afraid. A commits a misdemeanor. (3.) ' A, a sheriff, refuses to execute a criminal condemned to death. A commits a misdemeanor. 1 [R. V. Bemhridoe, 3 Doug. 332 ; 22 St. Tr. 1-159. This would now, in England, be an oflFenoo in the case of a private person under 38 & 39 Viot. c. '2i, s. 2. See S. D. Art. 352. ^li.Y. Valendne Jones, 31 St. Tr. 251.] •■■S.D. Art. 122. *[R. V. Wuat, 1 Silk. 3Sl; Ji.v. Bembridac, 3 Doug. 332; 22 St. Tr. i-15l, • Comyn's Digest, tit. Indiotmoiit, D. ; E. \. Jones, Strange, lllfi ; 4 Steph. Com. 32( ^ li. v. Finney, o C. k P. 254, and 3 B. k Ad. 947. This is the c .ae t' t..9 Bristol riots. Mr. Pinney was, in fact, acquitted ; but the case involves the priiiciplecf the illustration. " It. v.Kennetl (Laid Mayor ia 1789), printed in 5 C. R. S. C. e. 173, ss. 20, 21. The prosecution for any offence defined in Articles 157, 158, must be eonimenced within two years after the commission of the offence, (s. 24.) THE CRIMINAL LAW. 119 Every oue in the employment of the said government is guilty of a misdemeanor and liable to the same punish- ment who accepts or agrees to accept any such gift, loan, offer, promise, agreement, consideration or compensation whatsoever. Article 158. corruption in respect to business with the govern- MENT. ^ Every one is guilty of a misdemeanor, and liable to a fine not exceeding two thousand dollars, and shall be in- capable, for the term of five years, of holding any public office, who, being a public officer or paid employee of the Government of Canada, or of any Province of Canada, re- ceives, directly or indirectly, any promise, offer, gift, loan, compensation or consideration whatsoever, either in money or otherwise, from any person whomsoever, for fraudulently assisting or favoring any individual in the transaction of any business whatsoever connected with such government, or for doing so con nary to the duties of his special position as an officei or employee of the government. Every one who makes any such offer is guilty of a mis- demeanor and liable to the same punishment. » Article 159. other consequences of conviction for any such OFFENCE. ^ Every person convicted of any offence under the pro- visions of the two Articles next preceding shall be in- capable of contracting with or holding any contract under any of the said governments. 1 R. S. C. c. 173, s. 22. 2R.S.C. c. 173.B.23. 120 A DIGEST OF AllTICLE 160. REVENUE OFFICERS COMMlTTINff CORRUPT ACTS. ' Every officer, or person acting iu any office or employ- ment connected with the collection or management of the reA^enne, is guilty of a misdemeanor and liable to a fine of five hundred dollars and to one year's imprison- ment and to be dismissed from office - who — (a.) receives any compensation or reward for the per- formance of any official duty, except as by law prescribed^ or ; (b.) conspires or colludes with any other person to de- fraud the crown, or makes opportunity for any person to defraud the crown ; or (c.) designedly permits any violation of the law by any other person ; or ( Article 1G8. DEFINITION OF TREATING. - Every person is guilty of treating who corruptly, by himself or by or with any other person, or by any other ways or means on his behalf, at any time either before or during any election, directly or indirectly gives or pro- vides, or causes to be given or provided, or is accessory to the giving or providing, or pays wholly or in part any expenses incurred for, any meat, drink, refreshment or provision to or for any person, in order to be elected or for being elected, or for the purpose of corruptly influ- encing such person or any other person to give or refrain from giving his vote at such election. ^ Article 169. punishment of bribery, undue influence and treating. * Every person is guilty of a misdemeanor, and shall ' S. D. Art. 130 A. - R. 8. C. c. 8, s. 86; 46 & 47 Vict. c. 51, 8. 1. To give to any voter, on nomination or polling day, any refreshment or money or ticket to procure any refreshment on account of such voter having voted, or being about to vote, is an unlawful act, punishable by a flno of ten dollars. See also R. S. C. c. 106, ss. 77, 78. ^ S. U. Art. 131. * R. S. C. c. 8, SB. 84, 85, 87. See also R. S. C. c. 106, ss. 75, 70, 79. A prosecution for a misdemeanor under R. S. C. c. 8 must be commenced within one year after the act com- mitted, unless prevented by defendant's absence (s. 117), and for a misdemeanor under R. S. C. c. 106 within six months (s. 90). 128 A DIGEST OF also forfeit the sum of two liundred dollars with costs to any person who sues for the same, who commits bribery or undue influence at any election. ' Every candidate who commits the offence of treating is liable to forfeit the sum of two hundred dollars and costs to any person who sues for the same. " Every one is guilty of a misdemeanor and liable to a penalty of one hundred dollars and to three months' imprisonment who, at any election, either i^rovides or furnishes drink or other relYeshment at the expense of a candidate, to any elector during such election, or pays for, procures or engages to pay for, any such drink or other refreshment. ' R. S. C. c. 8, s. 80. See also R. S. C. c. 103, s. 77. - R. S. C. e. 8, .ss. 79, 82; see also R. S. C. c. ]08, ss. 71, 73. Offenders are also liable to disabilities as to voting, being elected, itc. With reference generally to offences against The Dominion Elect ions' Act, it will be observed that some are declared to be misdemeanors, and in respect of others the offender is liable to a pecuniary penalty. By the 106 Section it is provided that all penalties and forfeitures (other than fines in cases of miedeineanors) imposed by the Act shall be recov- erable with costs by any person who sues for the same in a court of competent jurisdic- tion, and if default is made in payme-it thereof the offender is liable to imprisonment for any term less than two years. Such ca=cs would, however, fall within the rule mentioned in the note to Article 153, and the offender might be proceeded against by indictment. By R. S. C. c. 0, ss. 09-8'), provision is made for the summary trial of persons guilty of corrupt practices at elections, under which any offender on conviction is liable tO three months' imprisonment with or without hard labor, and to a fine of two hundred dollars and costs, and in default of payment to a further term of three months' imprisonment (g. 82). As to imprisonment in case of misdemeanors where no special provision is made, see Art. IV. In addition to the offences mentioned in Articles 166-171, various others are created by the Act (R. S. C. c. 8). Of these tiie following are punishable by fines recoverable by suit in a court of competent jurisdiction:— Elector taking ballot paper out of polling station (s. 48) ; violatinji provisions as to secrecy (s. 70) ; refu-iing to deliver up offensive weapon to returning officer (s. 76, Art 108); selling spirituous iiciuors within polling district on election day (s.83) ; paying for conveyance of voters to the poll, ic, (s. 8S). By 51 Vict. (D.) c. 11, s. 13, furtlier provisions are made to secure secret voting, violations of which are punishable on summary conviction. The following offences are declared to bo misde- meanors ;— Carrying arms, itc.on election day (s. 78, Art. 109); carrying flags, x,\^ Cox C. C. 166. It is not an indictable offence at common law to per- sonate a voter at a municipal election ; R, v. Hogg, 25 U. C. Q. B. 06. •■> R. S. C. c. 8, 8. 103. See also R. S. C. c. 106, s. 82. * R. S. C 0. 8, s. 90. See also R. S. C. c. 106, s. 83. » R. S. C. 0. 7, 8. 65. K 130 A DIGEST OF voted once at any such election, tenders a vote at the same election, is guilty of personation, and is liable to a penalty of six hundred dollars, and to six months' impri- sonment. Article lYl. FORGERY OF BALLOT PAPERS, AND OTHER OFFENCES RESPECTING THE SAME. ' Every one who, — (a.) forges, counterfeits, fraudently alters, defaces or fraudulently destroys any ballot paper or the initials of the deputy returning officer signed thereon ; or (b.) w^ithout authority supplies any ballot paper to any person ; or (c.) fraudulently puts into any ballot box any paper other than the ballot paper, which he is authorized by law to put in ; or (d.) fraudulently takes out of the polling place any ballot paper ; or (e.) without due authority destroys, takes, opens or otherwise interferes with any ballot box or packet of ballot papers then in use for the purposes of the elec- tion ; or (/.) attempts to commit any offence specified in this Article — Is guilty of a misdemeanor ; and, if he is a return- ing officer, deputy returning officer or other officer en- gaged at the election, is liable to a fine of one thousand dollars and in default of payment to imprisonment for any term less than two years, and if he is not any such officer to a fine of five hundred dollars, and in default of payment to six months' imprisonment.^ » R. S. C. c. 8, 9. 100 ; 35 & 36 Viot. c. 33, 8. 3. Seo also R. S. C. 106, s. 85. * With or without hard labor. THE CRIMINAL LAW. 1311 ^ Article 1*72. definition of office. [The word " office " in articles 1*73 and 1*74 includes " Every office in the gift of the crown or of any officer appointed by the crown, and all commissions, civil, naval and military, and all places or employments in any public department or office whatever in any part of Her Majesty's dominions whatever, and all deputations to any such office and every participation in the profits of any such office or deputation. • ^ Article 1*73. SELLING offices. * Every one commits a misdemeanor who does any of the following things in respect of any office, or any ap- pointment to or resignation of any office, or any consent to any such appointment or resignation, that is to say, every one who directly or indirectly (a.) sells the same, or receives any reward or profit from the sale thereof, or agrees to do so ; {b.) purchases, or gives any reward or profit for the purchase thereof, or agrees or promises to do so. ® Whoever commits either of these misdemeanors, upon its commission forfeits to the Queen any right which he may have in the office, and is disabled to hold it for life, and it is not lawful for the Queen to dispense him from such disability.] ^ > S. D. Art. 132. ;■-'•- -;.•. .■.■.:•■:'-; .- i* [5 & 6 Edw. 6, 0. 16 ; 49 Geo. 8, o. 126, s. 1.] 3 S. D. Art. 133. ♦ [4!) Geo. 3, o. 126, s. 3, greatly condensed.] R. v. Mercer, 17 U. C. Q. B. 602 ; R. v. Moodie, 20 U. C. Q. B. 389. H5&6 Edw. 6, c. 16, s. 1 ; 49 Geo. 3, o. 126, s. 2; Ingram's Case, 3 Inst. 154. The 5 & 6 Edw. 6, c. 16, 8. 1, is repealed as to olFices in the Customs by 6 Geo. 4, c. 105, s. 10. It was, however, extended to offices in the Customs as well as to many others by 49 Geo. 3,c. 126. I do not quite understand the result of this. The present Customs Act, 39 & 40 Vict. 0.36, throws no light on the subject.] k2 132 A DIGEST OF 'Article 174. making interest for offices for reward. ^ [Every one commits a misdemeanor who does any of the following things directly or indirectly : — (a.) receives or agrees to receive any reward or profit for any interest, request, or negotiation about any office, or under pretence of using any such interest, making any such request or being concerned in any such nego- tiation ; (b.) gives or procures to be given any profit or reward, or makes or procures to be made any agreement for the giving of any profit or reward, for any such request or negotiation as aforesaid ; (c.) solicits, recommends, or negotiates in any manner as to any appointment to or resignation of any office in expectation of any reward or profit ; (d.) ^ keeps any office or place for transacting or nego- tiating any business relating to vacancies in or the sale or purchase of or appointment to or resignation of offices.] 1 S. D. Art. 134. 2 49 Geo. 3, c. 126, 8. 4. » Ibid. s. 5. THE CRIMINAL LAW. 133 CHAPTER XV. 'misleading justice— perjury— false swearing^ s uborna tion—a d ministering extra-judicial oaths— false certificate as to execution. ^Article 1^5. perjury defined. ^ [Perjury is an assertion upon an oath duly administered in a judicial proceeding, before a competent ^ court, of the truth of some matter of fact, material to the question depending in that proceeding, which assertion the assertor does not believe to be true when he makes it, or on which he knows himself to be ignorant. ^ In this definition, the word " oath " includes every affirmation which any class of persons is by law per- mitted to make in place of an oath. " The expression " duly administered " means adminis- tered in a form binding on his conscience, to a witness legally called before them by any court, judge, justice, ' The 18th section of The Chinese Immigmtion Act (R. S. C. o. 67) prohibits the organiza- tion of courts composed of Chinese persons for the determination of offences committed by them. The offence is a misdemeanor punishable by twelve months' imprisonmenti ora fine of five hundred dollars, or both. - S. D. Art. 135. [See 3 Hist. Cr. Law, pp. 240-50. =* 3rd Inst. 167 ; 1 Ilawls. P. C. 429-435 ; 3 Russ. Cr. 1, &c., and see note, 5th Report, C. L. C. 23. Draft Code, s. lift.] False evidence given upon an e.xamination in the absence of the authority competent to hold such examination is not perjury ; li. v. Lloyd, L. R. 19 Q. B. D. 213 ; IG Cox C. C. 235 ; R. v. Oibson, 7 R. L. 573. * 11. V. Dotu, 13 U. C. Q. B. 39S; ; It v. Row, 14 U. C. C. P. 307 ; R. v. Gagnon, 17 U. C C. P. 530 ; R. V. Martin, 21 L. C. J. 156 ; McAdam v. Weaver, 2 Kerr 176 ; R. v. Mcintosh, 1 Han. 371 ; R. v. Leonard,^ L. N. 138, 211. ^R. S. G. c. 1. 8.7(28.) [Many statutes to this effect have been passed. See in particular 32 & 33 Vict, c . 68, s. 4 ; 33 & 34 Vict. c. 49 ; and see statutes as to particular religious bodies collected in 3 Russ. Cr. 26-9. " See 14 k 15 Vict. c. 99, s. 16. passed to remove doubts in the question by whom an oath might be administered, 3 Russ. Cr. 3. As to using a form binding on the witness's conscience see 1 & 2 Vict. c. 105 ; Omichund v. Barker, Willes 538, 1 Sm. L. C. 455.] . 134 A DIGEST OF [officer, commissioner, arbitrator, or other person, who by the law for the time being in force, or by consent of the parties, has authority to hear, receive, and examine evidence. ' The fact that a person takes an oath in any particular form is an admission that he regards it as binding on his conscience. ^ The expression "judicial proceeding " means a pro- ceeding which takes place in or under the authority of any court of justice, or which relates in any way to the administration of justice, or which legally ascertains any right or liability. ^ A proceeding may be judicial although the person accused in it was brought before the court by which the proceeding is held by an irregular warrant. * The word " fact " includes the fact that the witness holds any opinion or belief. " The word " material " means of such a nature as to affect in any way, directly or indirectly, the probability of anything to be determined by the proceeding, or the credit of any witness, and a fact may be material although evidence of its existence was improperly admitted.] * All evidence and proof whatsoever, whether given or made orally, or by or in any affidavit, affirmation, declara- tion, examinai'on or deposition, is deemed material with respect to the liability of any person proceeded against for wilful and corrupt perjury, or for subornation of perjury. •• » ISelh V. Hoare. 3 B. &. B. 232 ; 7 Moody 36. *Illu8trati(-i8(2), (3),(4).] The administering of an oath by a returning officer to a Toter at a :mo election, is not a Judicial proceeding ; Thomas v. Piatt, 1 U. C. Q. B. 217. Wilful false swearing in an affidavit made in a judicial proceeding, and sworn before a oommiflsioner duly appointed, is perjury ; Milner v. Qilhert, 3 Kerr 617 ; and it is not necessary that the -Affidavit be used. The offence is complete on the false swearing ; Milner v. Oilbert, 1 Allen 61. » fli. V. Hughes, L. R. 4 Q. B. D. 614. * Illustration (6). » Illustrations (6), (7).] « R. S. 0. 0. ICl, B.5;R. v. Sost, 28 L. C. J. 2di : 1 M. L. R. 227 : R. v. Murphv, 9 L.N. 9S. THE CRIMINAL LAW. 135 Illustrations, [(1.) A swears that certain goods are of a certain value. 1 A is entirely ignorant upon the subject. A is guilty of perjury whether the goods are of that value or not The goods are not of that value, and A knows it. A has committed perjury. ^ Tlie goods are of that value, but A believes that they are not. A has committed perjury. The goods are not of that value, but A believes that they are. A has not committed perjury. (2.) ^ A proceeding before a local marine board sitting under the Merchant Shipping Act, 1854, and having power to suspend or cancel the certificates of the masters and mates of ships, is a judicial proceeding. (3.) * An inquiry before a sheriff as to the amount of damages is a judicial proceeding. (4.) ^ An inquiry before a justice of the peace as to making a man find sureties for the peace is a judicial proceeding. (5.) * A swears that he thinka that certain words are in his hand- writing. The jury find that he did not think so. A commits perjury. (6.) ' A, a witness under cross-examination, denies an imputation which goes to his credit only. B is improperly permitted to contradict A. B swears falsely. B commits perjury on a matarial fact (7.) * A falsely swears that he has examined a paper, alleged to be a copy, with an original will, in order to make the copy admissible. The paper is not put in evidence, and it would not have been admissible if it had been tendered. A commits perjury on a material fact. " Article 1*16. subornation of perjury. '" Subornation of perjury is procuring a person to com- mit a perjury, which he actually commits inconsequence of such procurement.] > fif. V. »fau>6ei/, 6 T. R. 637. " Oumew CVwe, 3 Inst. lt«3. .,. *R.y. Tomliruon,L.R. I C.C.R. 49. * 1 Ilavrk. P. C. 430. » Ibid.J See also «. v. Walker, 21 U. C. Q. B. 34 ; R. v. Mamn, 29 U. C. Q. B. m. * [R. V. SchUnnger, 10 Q. B. 670, ' H. y. Gibbon, L. & C. 109. In the later case of 7;, v. 7V»on, L. R. 1 C. C. R. 107, R. r. Gibbon was followed, but the facta are not so strong. See, too, R. r. MulUiny, L. & C. G93, » Philpott't Cats, 2 Den, C. C. 302, 309.] * S, D, Art. 186. '° [If the perjury is not committed, the crime is incitement ; see Article 60, See also 1 Hawk. P. 0. 435. o. 27, s. 10. Draft Code, s. 119.] 136 A DIGEST OF . ' Article lt*7. PUNISHMENT OF PERJURY AND SUBORNATION. ^ Perjury and subornation of perjury are misdemeanors, and every one who commits either is liable to a fine in the discretion of the court and to fourteen years' im- prisonment.^ ^ Article 178. FALSE swearing. •^ [Every one commits a misdemeanor who swears falsely before any person authorized to administer an oath upon a matter of piiblic concern, under such circumstances that the false swearing if committed in a judicial proceeding would have amounted to perjury. Illustrations. (1.) "A takes a false oath before a surrogate in order to obtain a marriage license. A commits a misdemeanor. (2.) ' A takes a false oath before commissioners appointed by the king to inquire into cases in which a royal grant was required to confirm title to lands. A commits a misdemeanor. (3. ) "A swears a false affidavit under the Bills of Sale Act (17 & 18 Vict. c. 36). A commits a misdemeanor.] Article 1*79. FALSE statements — WILFUL OMISSIONS IN AFFIDAVITS, &0. ® Every one is guilty of perjury who (a.) having taken any oath, affirmation, declaration or 1 S. D. Art. 137. «R. 8.0.0.154,8.1. ■** [The punishment at coininon law was whipping, imprisonment, fine, and pillory.] * &. D. Art. 138. As to forging instrumen t« admissible in evidence and tendering them in proof, Ac, see Art. 505. 6 [See Cases in Illustrations. Draft Code, s. 122. • Chapman'n Case, 1 Den. 0. C. 432. ' llobart, 62. This case is given by Hawliins, 1 P. C. 430, as an instance of perjury in » proceeding not judicial ; but thisi I think) is a misconception. s li. V. HodokUi, L. R. 1 C. C. R. 212.] « R. S. C. c. 154, 9. 2. THE CRIMINAL LAW. 137 affidavit in any case in which by any Act or law in force in Canada, or in any Province of Canada, it is required or authorized that facts, matters or things be verified, or otherwise assured or ascertained, by or upon the oath, affirmation, declaration or affidavit of any person, wil- fully and corruptly, upon such oath, affirmation, declara- tion or affidavit, deposes, swears to or makes any false statement as to any such fact, matter or thing ; or {b.) knowingly, wilfully and corruptly, upon oath or affirmation, affirms, declares, or deposes to the truth of any statement for so verifying, assuring or ascertaining any such fact, matter or thing, or purporting so to do, or knowingly, wilfully and corruptly takes, makes, signs or subscribes any such affirmation, declaration or affidavit, as to any such fact, matter or thing, — such statement, affidavit, affirmation or declaration being untrue, in the whole or any part thereof ; or, (c.) knowingly, wilfully and corruptly omits from any such affidavit, affirmation or declaration, sworn or made under the provisions of any law, any matter which, by the provisions of such law, is required to be stated in such affidavit, affirmation or declaration. Article 180. making false affidavit out of province in which it IS USED. ^ Every person who wilfully and corruptly makes any false affidavit, affirmation or declaration, out of the Pro- vince in which it is to be used, but within Canada, before any person authorized to take the same, for the purpose of being used in any Province of Canada, is guilty of per- jury in like manner as if such false affidavit, affirmation or declaration were made before a competent authority in the Province in which it is used or intended to be used. 1 R. S. C. 0. 151, 8. 3 ; 18 & 19 Viot. o. 42, 8. 4. 138 A DIGEST OF Article 181. ' administering oaths without authority. ^ Every justice of the peace or other person who admin- isters, or causes or allows to be administered, or receives or causes, or allows to be received, any oath, affidavit or solemn affirmation, touching any matter or thing whereof such justice or other person has not jurisdiction or cogni- zance by some law in force at the time being, or author- ized or required by any such law, is guilty of a misde- meanor and liable to a line not exceeding fifty dollars, or to imprisonment Tor any torm not exceeding three months. ^Article 182. ^ maintenance. ^ [Maintenance is the act of assisting the plaintiff in any legal proceeding in which the person giving the assist- ance has no valuable interest, or in which he acts from any improper motive. Champerty is maintenance in which the motive of the maintainor is an agreement that if the proceeding in which the maintenance takes place succeeds, the subject matter of the suit shall be divided between the plaintiff and the maintainor. A common barrator is one who habitually moves, ' R. S. C. c. 141, a. 1 ; 5 A 6 Wm. 4, c. 62, s. 13. » S. D. Art. 141. See Appendix, Note III. * [In the earlier editions of this work I included under this head the offence of aellinsr pretended titles. The whole matter is so indefinite, and partalies so much more of the nature of a civil penalty than of a crime, that I have left it out. The law upon the sub- ject will be found in 32 Hen. 8, c. 9. See Jenkiw v. Jones, L. K. 9 Q. B. L>. 128, on the effect of 8 .& 9 Vict. o. 106 upon 32 lien. 8, c. 9, and Kennedu v. Lyell, L. R. 15 Q. U. D. 491, on the meaning of a " pretended title." ♦ 1 RusB. Cr. (5th ed.) 351-60. As to barratry, 362-3. See also 1 Hawk. P. C. 451-468, and Note III. in Appendix. 8ee also 3 Hist. Cr. Law, 231-40. The old Statute of Conspi- rators, 33 Edw. 1. and many other ancient statutes (3 Edw. 1 c. 18; 13 Edw. 1 c. 49; 1 Edw. 3, St. 2, 0. 14 : 20 Edw. 3, o. 4 ; 1 Rio. 2, o. 4 ; 7 Rio. 2, o. 15 ; 32 Hen. 8, c. 9 ; 4 Edw. 3, c. 11) refer to these offenoef , but do not throw much light on their nature.] THE CRIMINAL LAW. 139 [excites, or maintains suits or quarrels, either at law or otherwise. Every one who commits maintenance, or champerty, or is a common barrator, is guilty of a misdemeanor. ' Every one who sues any person in the name of a ficti- tious plaintiff, or in the name of a real person but with- out his authority, commits a misdemeanor, and must, upon conviction thereof, be imprisoned for six months. 2 Article 183. conspiracy to defeat justice — dissuading witnesses from testifying. Every one commits a misdemeanor who (a.) •'' conspires with any other person to accuse any person falsely of any crime, or to do anything to obstruct, prevent, pervert, or defeat the course of justice ; or {b) * in order to obstruct the due course of justice, dis- suades, hinders, or prevents any person lawfully bound to appear and give evidence as a witness from so appear- ing and giving evidence or endeavors to do so ; or (c.) * obstructs or in any way interferes with or know- ingly prevents the execution of any legal process civil or criminal.] Article 184. signing false declaration respecting execution of judgment of death. ® Every one who knowingly and wilfully signs any ^ ri8 Eliz, c. 6, 8. 4 (redrawn and modernized).] « S. D. Art. 142. ' Every one convicted of an ofTenoe against clause (a.) is liable to seven years' imprison- ment ; R, S. C. 0. 173, 8. 26 ; [Wright on Conspiracies, 30 ; 14 & 15 Vict. c. ICO, a. 29 ; cf. Draft Code, 88. 126, 7, 8. * 1 Hawk. P. C. 64 ; R. v. Lady Lawlev, Strange, 901 ; and see 5th Rep. C. L. C. Art. 57.] See also R. S. C. c. 106, s. 121, as to tampering with witnesses in any prosecution under The Canada Temperance Act. ' [Cases collected in 1 Russ. Cr. 658-61.] • R. S. 0. c. 181, 8. 19. 140 A DIGEST OF false certificate or declaration required with respect to the execution of judgment of death on any prisoner is guilty of a misdemeanor, and liable to imprisonment for any term less than two years. THE CRIMINAL LAW. 141 CHAPTER XVI. escape— rescue— prison breach— misprisions— com- pounding offences— taking or advertising rewards for recovery of stolen property, ^Article 185. \ voluntary permission by officers of escapes by prisoners. [Every one who knowingly, and with an intent to save him from trial or execution, permits any person in his lawful custody to regain his liberty, otherwise than in due course of law, commits the offence of voluntary escape ; and is guilty of high treason if the escaped prisoner was in his custody for and was guilty of high treason ; and^ becomes an accessory after the fact to the felony of which the escaped prisoner was guilty, if he was in his custody for and w is guilty of felony ; and is guilty of a misdemeanor if the escaped prisoner was in his custody for and was guilty of a misdemeanor. ^Article 186. negligent permission by officers of escapes by prisoners. * Every one is guilty of the misdemeanor called negli- 1 S. D. Art. 143. [2 Hawk. P. C. 192, 190, 197 ; I Russ. Or. 568. It does not appear what is the effect of voluntarily permitting the escape of a man lawfully chanted, but innocent in fact. Draft Code, 8. 138.] => S. D. Art. 144. * [1 Hale, P. C. G02; 2 Hawk. P. C. 194 (speaks doubtfully as to the second paragraph). Of. Draft Code, s. 140.] 142 • A DIGEST OF [gent escape who, by the neglect of any duty, or by igno- rance of the law, permits a person in his lawful custody to regain his liberty otherwise than in due course of law. The person escaping is deemed to have regained his liberty as soon as he gets out of sight of the person from whom he escapes, and not before. * Article 18*7. rescue defined. ^ Rescue is the act of forcibly freeing a person from cus- tody against the will of those who have him in custody. If the person rescued is in the custody of a private person, the offender must have notice of the fact that the person rescued is in such custody. ^ Article 188. * quality of offence of rescue. * Every one commits high treason, felony, or misde- meanor who rescues a prisoner imprisoned on a charge of, or under sentence for, high treason, felony, or misde- meanor respectively.] :■ ..^^, ^■. ^'-ry ■.:,... ^ ' Article 189. felonious rescues — punishment. ^ Every one who feloniously rescues any prisoner is liable to seven years' imprisonment, when no special punishment is otherwise provided by statute. » 8. D. Art. 145. a [1 Russ. Cr. 582; 2 Hawk. P. 0. 201.J » S. D. Art. 146. * [1 Hale P. C. 636 ; 1 Rusb. Cr. 583-4. Draft Code, s. 186.] og.D. Art. It7. • R. S. 0. 0. 165 s. 1 ; 1 & 2 Geo. 4. o. 88 g. 1. THE GRIMIiVAL LAW. 143 ' Article 190. rescuing murderers. '" [^very one commits felony and is liable] to seven years' imprisonment, [who by force sets at liberty, res- cues, or attempts to rescue, or set at liberty, any person out of prison, committed for or found guilty of murder, or rescues or attempts to rescue any person convicted of murder, going to execution or during execution. ^Article 191. breaking prison. ■* Every one commits felony who, being lawfully de- tained on a charge of, or under sentence for, treason or felony, breaks out of the place in which he is so detained, against the will of the person by whom Le is detained. The expression " breaks out " means an actual breaking of the place in which the party is confined, whether in- tentional or not. Illmlraiiwis. (1.) ''A, lawfully confined in prison under a charge of felony, climbs over the prison wall and escapes. A has not committed an oflence within this Article. (2.) ^On the top of the prison wall loose bricks are arranged so as to fall if disturbed. In climbing over the wall A accidentally disturbs and > S. D, Art. 148. - 25 Geo. 2 c. 37 s. 9. I havo left this provision in tiie text though it is not clear that it would be held to be in force in Cimada. The punishment in England was reduced from death to penal servitude for life by 7Wm. 4 A 1 Vict. c.91. In the Provinces other than British Columbia and Manitoba, the punishment would, if the act were held to be in force, be death unless it is reduced to imprisonment for life by R. S. C. c. 181 s. 24 (Art. 17) or to seven years bv K S. C. c. 155 8. 1. See Draft Code, 8. 135. ' ■' S. D. Art. 153. < [2 Hawk. P. C. 183-189; 1 Russ. Cr.677-f81. There is a good deal of learning on the sub- ject founded on 1 Edw. 2, st. 2, " De frangentibus prisonam," but it is mostly practically obsolete. This statute is not mentioned in the Revised Statutes. Draft Code, s. 132. ^ R. V. Huswell, R. & R. 458.] But it might be an oflFence within Art. 192 or 195. 144 A DIGEST OF [throws down one of them. A has committed an offence within this Article.] * Article 192. punishment of certain escapes, rescues, &c. Every one who escapes from or rescues, or aids in res- cuing, any other person from lawful custody, or makes or causes any breach of prison, if such offence does not amount to felony, is guilty of a misdemeanor, and liable to imprisonment for any term less than two years. ''Article 193. assisting escape of prisoners of war. ^ [Every one commits felony and is liable] to imprison- ment for life (probably) who [{a.) assists any alien enemy of Her Majesty, being a prisoner of war in Her Majesty's dominions, whether such prisoner is confined as a prisoner of war in any prison or other place of confinement, or is s'lffered to be at large on his parole in Her Majesty's dominions or in any part thereof, to escape from such prison or place of confinement, or from Her Majesty's dominions, if at large on his parole ; or {b.) who (owing allegiance to Her Majesty) after any such prisoner as aforesaid has quitted the coast of any part of Her Majesty's dominions in such his escape, knowingly and wilfully upon the high seas aids or assists such prisoner in his escape towards any other dominions or place.] > S. D. Art. 152. 2K. S. C. C.155S.2. 2 Hawk. P. C. 182. Draft Code ss. 133, 134. 8 S. D. Art. 149. * 52 Geo. 3, o. 156, ss. 1, 2, 3. The punishment prescribed by the Act is transportation for life or fourteen or seven years. I have assumed that R. S. C. c. 181, s. 24 (Art. 17), would apply to such a ease. THE CRIMINAL LAW. 145 Article 194. unlawfully directing or procuring discharge of prisoner. ^ Every one is guilty of a misdemeanor, and liable to imprisonment for any term less than two years, who, knowingly and unlawfully, under color of any pretended authority, directs or procares the discharge of any prisoner not entitled to be so discharged. The person so discharged is held to have escaped. Article 195. ESCAPING, etc., from A PENITENTIARY. ^ Every one is guilty of felony and liable to two years' imprisonment in case (a.), to three in case (6.), to one in case (c), and to five in cases {d), {e.) and {f.) ; {a.) who being a prisoner ordered to be detained in any penitentiary, escapes from the person or persons having the lawful custody of him, when being conveyed thereto, or when being conveyed from one penitentiary to another ; {b.) who being a prisoner in a penitentiary, breaks prison or escapes, or attempts to escape from the custody of any officer, guard or other servant of the penitentiary while at work, or passing to or from work, either within or beyond the prison walls or penitentiary limits ; (c.) who being a prisoner in any penitentiary, at any time attempts to break prison, or who forcibly breaks out of his cell, or makes any breach therein with intent to escape therefrom, whether successful or not ; {d) who rescues or attempts to rescue any prisoner while being conveyed to any penitentiary, or while im- prisoned therein, or while being conveyed from one peni- 1 R. S. C. 0. 155, 8. 8. • R. S. C. c. 155, 8a. 3, 4, 5, 6, 7. 1 & 2 Viot, o. 82. ss. 12, 13 ; 5 -own v. D'Ai-igdor, L. R. 10 Q. B. D. 412; Amthlii v. Fniidllii, L. R. 17 Q. B. D. 93 ; Tufdor v. McCullnngh, 8 0. R. 309. In many cases the Legislature in creiiting or dctining offences has provided that any remedy which any person aggrieved by any such offence might otherwise have had should not be affcot« S. D. Art. 165. ^ [1 Eliz. 0. 2, 8. 3, applied to the present Book of Common Prajer by 14 Car. 2, o. 4, B.20.] 158 A DIGEST OF [ing common or open prayer, or ministering the sacra- ments, or any of thom, in the manner mentioned in the said book. • . For the first offence the offender must be fined one hundred marks, and in default of payment within six weeks after his conviction must be imprisoned for six months. For the second offence the offender must be fined four hundred marks, and in default of payment as aforesaid must be imprisoned for twelve months. For the third offence the offender must forfeit to the Queen all his goods and chattels and be imprisoned for life. •;■■;.; -"■,:':,' ■;:;;/■.:'.■;,,;■:;.- ^■;:;> ;--v:, v ;;: 'AUTICLE 211. CLERGYMEN REFUSING TO USE THE BOOK OF COMMON PRAYER. ■-■■■";.,"■-.■.. - [Every one commits a misdemeanor, and is liable upon conviction thereof to the punishments hereinafter men- tioned, who, being a parson, vicar, or other minister whatsoever, that ought or should sing or say common prayer according to the Book of Common Prayer, (a.) refuses to use the said common prayer, or to min- ister the sacrament, in such cathedral or parish church, or other place, as he should use or minister the same ; (b.) uses, wilfully and obstinately standing in the same, any other rite, ceremony, order, or form of mass, openly or privily, or matins, evensong, administration of the sacrament, or other ^ open prayer than is mentioned and set forth in the said book ; (c.) preaches, declares, or speaks anything in deroga- 1 S. D. Art. 166. a [2 & 3 Edw. 6, 0. 1 ; 14 Car. 2, c. 4, t. 20, and see 1 Eliz. c. 2, 8, 2, which slightly varies the penalty on one point. ' By " open prayer is meant that prayer which is for others to come unto or hear, either in common churches or private ohapels, or orutories, commonly called the Service of the Church."] THE CRIMINAL LAW. 159 [tion or depraving of the said book, or anything therein contained, or of any part thereof. For the first offence the offender must forfeit to the Queen one year's profit of such of his benefices as Her Majesty appoints, and be imprisoned for six months, whether he has any benefice or not. For the second offence the offender must be deprived ipso facto of all his spiritual promotions, and be impris- oned for a year, and if he has no promotion he must be imprisoned for life. For the third offence the offender must be imprisoned for life.] ^ Article 212. disturbing public worship. "^ Every one is guilty of a misdemeanor and liable to imprisonment for any term less than two years who, (a.) by threats or force, unlawfully obstructs or pre- vents, or endeavors to obstruct or prevent, any clergyman or other minister in or from celebrating divine service, or otherwise ofiiciating in any church, chapel, meeting-house, school-house or other place used for divine worship, or in or from the performance of his duty in the lawful burial of the dead, in any church-yard or other burial place ; or {b.) strikes or offers any violence to, or upon any civil process, or under the pretence of executing any civil pro- cess, arrests any clergyman or other minister who is en- gaged in or, to the knowledge of the offender, is about to engage in, any of the rites or duties in this article men- tioned, or who, to the knowledge of the offender, is going to perform the same, or returning from the performance thereof. ^ Every one is guilty of a misdemeanor and liable, on 1 S. D. Art. 167. ^ R. S. C. 0. 156 i 52 Geo. 3. o. ISA, s. 12 ; 9 & 10 Viof. o. 59, s. 4 ; 23 & 24 Viot. c. 32, s. 2 ; 24 & 25 Vict. 0. 100, s. 36. See Reid v. Ingli», 12 U. C, C. P. 191 as to 1 Will. & M. o. 18, s. 16, 160 A DIGEST OF summary conviction, to a penalty not exceeding twenty dollars and costs, and, in default of payment, to imprison- ment for a terra not exceeding one month, who wilfully disturbs, interrupts or disquiets any assemblage of per- sons met for religious worship, or for any moral, social or benevolent purpose, by profane discourse, by rude or in- decent behavior, or by making a noise, either within the place of such meeting or so near it as to disturb the order or solemnity of the meeting. against disturbers of religious worship being in force in O'ltnrio. Draft Code, s. 143, A person may be convicted under 23 & 21 Vict. c. 32, s. 2, of violent behavior in a churoh, although such behavior is an assertion of a bond fide claim of right ; Aaher v. Calcraft, L. R. 8 Q. B. D. c. 007. In the draft of the Revised Statutes of Canada, chapter 150, respecting offences against religion, was included a provision, founded on the statutes hereinafter referred to, against the desecration of the Lord's Day by shooting, gaming, sporting, frequenting tippling houses, or by servile labor (works of necessity and mercy excepted), but it was struck out by the Joint Committee of the two Houses of Parliament to which the draft wa [1 Rusa. Or. 427, gee cases ; R.v. Pierson, 2 Lord Raym, 1197 ; see also Chitty, and 8 Steph. Com. 353, n. Draft Code, s. 155. « R. V. Rice & Wilton, L. R. 1 C. C. R, 21.] ' S. D. Art. 181. ' [This definition appears to me to be established by the interpretation put by Jenka v. Turpin, L. R. 13 Q. B. D. 505 on, inter aliu, 17 & 18 Viet, o, 88, 8. 4. The law is discussed at length in the judgments of SirH. Hawkins and Smith, J.] R. v. Shaio, 4 Man.L. K. 404. THE CRIMINAL LAW. ITS [kept or used for the purpose of unlawful gaming therein by any considerable number of persons. Gaming means playing at games either of chance, or of mixed <;hance and skill. Unlawful gaming means gaming carried on in such a manner, or for such a length of time or for such stakes (regard being had to the circumstances of the players) that it is likely to be injurious to the morals of those who game. All gaming is unlawful in which (i.) a bank is kept by one or more of the players, exclusively of the others ; or (ii.) in which any game is played the chances of which are not alike favorable to all the players including among the players the banker or other person by whom the game is managed, or against whom the other players stake, play or bet.] ^ Article 235. evidence that a house is a common gaming house. The following circumstances are evidence (until the contrary is proved) that a house, room, or place is a common gaming house, and that the persons found therein were unlawfully playing therein : that is to say, (i.) ^ Where any cards, dice, balls, counters, tables, or other instruments of gaming used in playing any un- lawful game are found in any house, room, or place suspected to be used as a common gaming house, and entered under a warrant or order issued under The Revised Statutes, chapter 158, or about the person of any of those found therein. (ii.) ^ "Where any constable or officer, authorized as aforesaid to enter any house, room, or place, is wilfully prevented from, or obstructed, or delayed in entering the *S. D. Art. 183. " R. S. C. c. 158, 8. 4 ; 8 & 9 Viot. c. 109, s. ?, 3 11. S. C. 0. 158. 8. 8 i 17 & 18 Viet. o. 38. s. 2. 176 A DIGEST OF same or any part thereof, or where any external or in- ternal door or means of access to any such house, room, or place so authorized to be entered is found to be fitted or provided with any bolt, bar, chain, or any means or contrivance for the purpose of delaying, preventing, or obstructing the entry into the same, or any part thereof, of any constable or officer authorized as aforesaid, or for giving alarm in case of such entry ; or (iii.) If any such house, room, or place is found fitted or provided with any means or contrivance for unlawful gaming, or for concealing, removing, or destroying any instruments of gaming. Article 286. gaming in stocks and merchandise. ^ Every one is guilty of a misdemeanor and liable to five years' imprisonment and to a fine of five hundred dollars who, (a.) with the intent to make gain or profit by the rise or fall in price of any stock of any in corporated or unin- corporated company or undertaking, either in Canada or elsewhere, or of any goods, wares or merchandise, (i.) without the bond fide intention of acquiring any such shares, goods, wares or merchandise, or of selling the same, as the case may be, makes or signs, or authorizes to be made or signed, any contract or agreement, oral or written, purporting to be for the sale or purchase of any such shares of stock, goods, wares or merchandise ; or (ii.) makes or signs, or authorizes to be made or signed, any contract or agreement, oral or written, purporting to be for the sale or purchase of any such shares of stock, ' 51 Vict. (D.) e. 42, p. 1. Every office or place of buainess wherein is carried on the business of making or signing or procuring tu he made or signed, or neeotiuting or bargaining for the making or signing of such contracts of sale or purchase as are prohi- bited in this Article, is a common gaming house, and every one who as prii>cipal or agent occupies, uses, manages or maintains the same is the keeper of a common gaminghouse; (51Viot.(D) 0.42, 8.3.) THE CRIMINAL LAW. 17T goods, wares or merchandise, in respect of which no delivery of the thing" sold or purchased is made or recei \, and without the bond fide intention to make or receive such delivery ; or (6.) acts, aids, or abets in the making or signing of any such contract or agreement. But it is not an offence if the broker of the pur- chaser receives delivery, on his behalf, of the article sold, notwithstanding that such broker retains or pledges the same as security for the advance of the purchase money or any part thereof. v, ., ; - Article 237. ■ v HABITUALLY FREQUENTING PLACES WHERE GAMING IN STOCKS IS CARRIED ON. ^ Every one is guilty of a misdemeanor and liable to one year's imprisonment who habitually frequents any office or place wherein the making or signing, or procuring to be made or signed, or the negotiating or bargaining for the making or signing, of such contracts of sale or pur- chase as are mentioned in the Article next preceding is carried on. Article 238. PLAYING or looking ON IN GAMING HOUSE. ^ Every one who plays or looks on while any other person is playiug in a common gaming house is guilty of a misdemeanor, and liable, on summary conviction before two justices of the peace, to a penalty not exceeding one hundred dollars and not less than twenty dollars, and, in default of payment, to imprisonment for a term not exceeding two months. » 61 Vict. (D.) 0. 42, 8. 1 (2). * R. S. C. 0. 158 8. 6. This Article does not apply to persons who are in an ofBoe or place of business wherein themakinKof suoh oontraots as are mentioned in Artinin Mft <« <*'irried on ; R. V. Murphu, 17 0. R. 201. N ITS A DIGEST OF Article 239. obstructing peace officers entering a gaming HOUSE. • Every one who (a.) wilfully prevents any constable or other officer, authorized under The Revised Statutes, chapter 158, to enter any house, room or place, from entering the same or any part thereof ; or (b.) obstructs or delays any such constable or officer in so entering ; or (c.) by any bolt, chain or other contrivance, secures any external or internal door of, or means of access to, any house, room or place so authorized to be entered ; or (d.) uses any means or contrivance whatsoever for the purpose of preA'^enting, obstructing or delaying the entry of any constable or officer, authorized as aforesaid, into any such house, room or place, or any part thereof. Is guilty of a misdemeanor, and liable, on summary conviction before two justices of the peace, to a penalty not exceeding one hundred dollars, with costs, and to imprisonment with or without hard labor for any term not exceeding six months. Article 240. gambling in public conveyances. ^ Every one is guilty of a misdemeanor, ^ and liable to imprisonment for any term less than one year, who («.) in any railway car, or steamboat, used as a public conveyance for passengers, by means of any game of cards, dice or other instrument of gambling, or by any device of like character, obtains from any other person any money, chattel, valuable security or property ; or > K. S. C. 0. 158, s. 7 ; 17 & 18 Viot. c. 38, «. 1. 2R. S. C. 0. 1'O. SB. 1,2, .3,6. " The misdomeauor of obluiuiiig the game by false proteooeg (a. 1). THE CRIMINAL LAW. VJ%: (b.) attempts to commit such offence by actually engag- ing any person in any such game with intent to obtain money or other valuable thing from him. Every conductor, master or superior officer in charge of, and every clerk or employee when authorized by the conductor or superior officer in charge of, any railway train or steamboat, station or landing place, in or at which any sucl offence, as aforesaid, is committed or at-> tempted, must, with or without warrant, arrest any person whom he has good reason to believe to have committed or attempted to commit the same, and take him before a justice of the peace, and make complaint of such offence on oath, in writing. Every conductor, master or superior officer in charge of any such railway car or steamboat, who makes default in the discharge of any such duty, is liable on summary conviction to a penalty not exceeding one hundred dollars and not less than twenty dollars. Every company or person who owns or works any such railway car or steamboat, must keep a copy of chapter 160 of The Revised Statutes posted up in some conspicuous part of such railway car or steamboat. Eve^y company or person who makes default in the discharge of such duty, is liable to a penalty not exceed- ing one hundred dollars and not less than twenty dollars. 'Article 241. eettinq and pool selling. '^ Every one is guilty of a misdemeanor, and liable to a fine not exceeding one thousand dollars and to one year's imprisonment, who (a.) uses or knowingly allows any part of any premises under his control to be used lor the purpose of recording or registering any bet or wager, or soiling any pool ; or ' S. D. Art. 182. See Appendis, Note VI. « R. 8. C. c. 159, 8. 0; 16 Jk 17 Viot. o. 119, ss. 1, 4, 6. n2 180 A DIGEST OF {b.) keeps, exhibits, or employs, or knowingly allows to be kept, exhibited or employed, in any part of any pre- mises under his control, any device or apparatus, for the purpose of recording or registering any bet or wager or selling any pool ; or (c.) becomes the custodian or depositary of any money, property, or valuable thing staked, wagered or pledged ; or, {d.) records or registers any bet or wager, or sells any pool, — upon the result of any political or municipal election, or of any race, or of any contest or trial of skill or endur- ance of man or beast. Nothing herein applies to any person by reasc i of his becoming the custodian' or depositary of any money, pro- perty or valuable thing staked, to be paid to the winner of any lawful race, sport, game or exercise, or to the owner of any horse engaged in any lawful race, or to bets between individuals. ^Article 242. disokderly places of entertainment. ^ In Ontario, British Columbia, Manitoba and the North-West Territories [the following places are disorderly places of entertainment, that is to say — ^ Every house, room, or other place opened or used for public entertainment or amusement, or 'for public debat- ing on any subject whatsoever upon any part of the Lord's Day called Sunday, and to which persons are ' The Act does not apply to the custodian of money staked by two persons upon a bet between themselves on the result of a boat race ; li.y. Dillon, 10 Ont. P. R. 352. A trotting match for fifty pounds between two horses driren in harness in sleighs on the ioe is a legal horse race within 13 Geo. 2, o. 19, and 18 Geo. 2, c. 34 ; FStlton v. Jamen, 5 U. C. C. P. 182. " S. D. Art. 184. " [21 Geo. 3, 0. 49, s. 1.] R. ». Bamei, 45 U. C. Q. B. 276, iu which a conviction under this statute for keeping a disorderly house, known as the Royal Opera House, opened and used for public entertainment and amusemtfnt on the Lord's Day, was sustained. THE CRIMINAL LAW. 181 [admitted by the payment of money, or by tickets sold for money. The following places are deemed to be places to which persons are admitted by the payment of money, although money is not taken in the name of or for admittance, that is to say, any house, room, or place — ^ (i) at which persons are supplied with tea, coflfee, or other refreshments of eating or drinking on the Lord's Day at any greater pnce than the common and usual prices at which the ike refreshments are commonly sold upon other days thereat, or at places where the same usually are sold ; (ii.) any house, room, or place opened or used for any of the purposes aforesaid at the expense of any number of subscribers or contributors to the carrying on of any such entertainment, or amusement, or debate, on the Lord's Day, and to which persons are admitted by tickets to which the subscribers or contributors are entitled. ^ Article 243. disorderly inns. ■* A disorderly inn is an inn kept in a disorderly manner and suffered to be resorted to by persons of bad character for any improper purpose. Every person who keeps a disorderly inn, or who, being au innkeeper, refuses, without reasonable grounds, to entertain any person ready and willing to pay for enter- tainment therein, commits a misdemeanor.] ^ Article 244. lotteries. 'Every one is guilty of a misdemeanor and liable on summary conviction to a penalty of twenty dollars who, '•ilUoo. .'ic. Wsi. 2. '-S. D. Art. 185. ■' Preoedont of indiottnonti 3 Chit. Critn. Law, 672-3. As to refusing ontortaininent, see if. V. Rumcr, L. 11. 2 Q. B. D. 136. *S.D. Art. 18(). » [10 Will. 3, c. 23, g. 1 ; 42 Geo. 3, o. 119, g. 2. And see R. v. Crawshaw, Bell, C. C. 803.] 182 . A DIGEST OF ^ (a.) makes, prints, advertises or publishes, or causes or procures to be made, printed, advertised or published, any proposal, scheme or plan, for advancing, lending, giving, selling or in any way disposing of any property, by lots, cards, tickets, or any mode of chance whatso- ever. ; or (b.) sells, barters, exchanges or otherwise disposes of or causes or procures, or aids or assists in the sale, barter, exchange or other disposal of, or offers for sale, barter or exchange, any lot, card, ticket or other means or device, for advancing, lending, giving, selling or otherwise dis- posing of any property, by lots, tickets or any mode of chance whatsoever ; or ^ (c.) buys, barters, exchanges, takes or receives any such lot, card, ticket, or other device. * Every sale, loan, gift, barter or exchange of any property, by any lottery, ticket, card or other mode of chance whatsoever, depending upon or to be determined by chance or lot, is void, and all such property so sold, lent, given, bartered or exchanged,'is liable to be forfeited to any person who sues for the same by action or information in any court of competent jurisdiction. '-■ * No such forfeiture shall affect any right or title to such property acquired by any bond fide purchaser for valuable consideration, without notice. ^ This article applies to the printing or publishing, or causing to be printed or published, of any advertisement, scheme, proposal or plan of any foreign lottery, and to ip.S. C.c.159,8. 2; 8 Geo. 1, c. 2, g. .36 ; 6 & 71^111.4, c. 66. The disposition of property by a plan involving the exercise of judgment and skill) and not by lot, card, ticket or chance, is not within the prohibition ; U. v. Dodda, i 0. R. 390 ; Ji. v. Jamieson, 7 0. R. 149. 2 R. S. C. c. 159, g. 3 ; 8 Geo. 1, c. 2, g. 37 ; 12 Geo. 2, o. 28. s. 3. » R. S. C. c. 159, 8. 4 ; 12 Geo. 2 c. 28, s. 4. Po)ev v. Caniff, 18 U. C. Q. B. 403 ; Cronvn v. Widder, 16 U. C. Q. B. 356 ; Corbv v. McDaniel, 16 U. C. Q. B. 378 ; Marahall v. Piatt, 8 U. C. C. P. 189 ; Loi/d V. Clark, 11 U. C. C. P. 248 ; Clarke v. Donelly, 1 Ont. Dig. 1620 ; see alHo Iai SocUtd 325. - Being drunk is not an o£fence within clause (/'.). The offence consists in causini^a disturbance by being drunk ! Ex parte DenpaticQL.'S. 387; It. v. Mi/j/, 24 C. L. J. 157. ^ As to the neces^sity of there being evidence of place or circumstance to such impro- priety of purpose and failure to give a satisfactory account of herself, see It. v. Arscott, 9 0. R. 541. ■•See R. S. C. c. 176, ss. 3(/), 11, and as to whether or not a substantive offence is thereby created ; It. v. Clark, 2 0. R. 523 ; iZ. v. Flinl, 4 0. R. 214. A husband and wife may be jointly convicted of keeping a house of ill-fame. The keeping has to do with the management of the house, not the ownership thereof ; R. v. Warren, 16 0. R. 590. As to evidence of keeping, see R. v. Newton, 11 Ont. P. R. 101. '' The words " not giving a satisfactory account of themselves," do not apply to the keepers of disorderly houses, but to the frequenters thereof ; Arscott v. Lillty, 11 0. R. 181 ; R. V. Remon, 16 Q. R. 560, over-ruling R. v. Arscott, 9 0. R. 541. " It will not be inferred from tlio fact that the defendant has no peaceable profession or calling, and that he consorts with thieves, that ho maintains himself by crime ; R. v. On;aM,110nt. P.R. 497. THE CRIMINAL LAW. 189 maintain themselves by, for the most part support them- selves by gaming or crime, or by the avails of prostitu- tion. Every loose, idle or disorderly person or vagrant is liable, on summary conviction before two justices of the peace to a fine not exceeding fifty dollars or to imprison- ment, with or without hard labor, for any term not exceeding six months, or to both. Abticle 251. loitering near ships. * Every one who is found loitering near any ship, and who does not give a satisfactory account of his business there, is liable, on summary conviction, (a.) to a penalty not exceeding one hundred dollars and not less than fifty dollars, and to imprisonment, with hard labor, for a term not exceeding twelve months and not less than three months, if he is unarmed at the time he is so found loitering ; and {h.) if at such time he is armed ^ to imprisonment for a term not exceeding three years and not less than two years. 1 R. S. C. 0. 74, s. 87. - Armed with or carrying about his person any pistol, gun or other firearm or oGTensiTe Weapon. 190 A DIGEST OF * PART V. OFFENCES AGAINST THE PEESON, THE CONJUGAL AND PARENfTAL RIGHTS, AND THE REPUTATION OF INDIVIDUALS. CHAP. XXII. — Cases in ^vnIaI In- FLicnoN OP BoDiiA' Injcry is NOT Criminal. CHAP. XXIII.— Of Culpable Neg- ligence AND OF Duties TENDING TO THE Preservation op Life. CHAP. XXIV.— HoMiciDa CHAP. XXV. — Murder — Man- slaughter — Attempts to Com- mit Murder — Concealment op Birth. CHAP. XXVI.— Bodily Injuries and Acts and Omissions causing Danger to the Person. CHAP. XXVIL— Assaults— Kin- NAPI'ING — OuSTRUCTING OFFICERS AND Others in the Execution op their Duty. CHAP. XXVIIL— Rape— Carnal- ly KNOWING Children — Abor- tion. CHAP. XXIX— Crimes Affecting Conjugal and Parental Rights — Bigamy — Abduction . CHAP. XXX.— Offences against Children by Parents and Others. CHAP. XXXI.— Libels ON Privatb Persons. CHAPTER XXIL CASES IN WHICH INFLICTION OF BODILY INJURY IS NOT CRIMINAL. ^ Article 252. EXCEPTIONS TO REST OF PART V. [The contents of Part V. are to be taken to be subject to the provisions contained in this chapter. • [Appendix. Note VII. See also 3 Iiist. Cr. Law, ch. xxvi. and xsvii. pp. 1-120.] ' S. 1). Art. 196. THE CRIMINAL LAW. 191 - 'Article 253. execution of lawful sentences. ^ [The intentional infliction of death or bodily harm is not a crime when it is done in the execution, in the manner prescribed by law by a person whose duty it is to execute it, of a lawful sentence duly passed by a competent court. A court which, but for some formal defect in its autho- rity or in its proceedings, would have had jurisdiction to pass a sentence, is deemed for the purposes of this Article to be a competent court ; but a court which has by law no jurisdiction at all over the case in w^hich sentence is passed is not deemed to be a competent court, and a mis- taken belief on the part of the judge, or of the officer who executes the sentence, that it is competent, does not justify or excuse his act. • Illustrations. (1.) ^ A sits under a commission of paol delivery. The officer forgets to adjourn lite court at the end of the first day's sitting. This determines the commission. On the following day A sits again, and sentences a felon to death, who is duly executed hy B. Neither A nor B is guilty of murder or manslaughter, thouj!;h the i)roceeding8 are irregular. (2.) * A, a lieutenant or other having commission of martial autliorii^ in time of peace, causes B to he hanged by C by color of martial law. This is murder in both A and C. ' S. D. Art. 197. 11 Hale. P. C. 497 ; Foster, 267 ; 1 Hawk. P. C. 80 ; 1 Kast, P. C. 332-4. These author- ities contain (inter alia) discussions as to varying tbo form of punishment (as by substi- tuting beheading for hanKing) little likely to bo of praotical value. Draft Code.ss. 25, 28.] ■' l',r Lord Halo, 1 Hale, P. C. 4'.Kt. ■* Coke, .3rd Inst. 52 ; 1 Halo P. C. 499, 500. The whole subjectof martial law underwent full discussion in connection with the execution of Mr. Qurdon by a court martial in •laraiiicu in 1805. An elaborate history of the case has been published by Mr. Finlason, and the charge to tho grand jury, delivered at the Ccn'ral Criminal Court by the Lord Chief Justicu of England, has been published in a separate form. I know not whether the charge to tho grand jury of Middlesex, delivered by Lord (then Mr. Justice) Itlack- burn has been published or not. Much information on tho subject will bo found in Forsyth's Cases and opinions on Constitutional ier, (a), (6.) and (c.), and eppecially 1 Hale, P. C. 4*1. The qunlificiition at the end of this rule is founded on the doctrine that any one mny lawfully prevent orpuppress by force a breach of the penci or iifFrny (1 Hiiwk. P. C. 489 ; J{. V. Omier, 6 East, 308), fro'n which it would seem to follow that a man who is himself assaulted may arrest his assailant, and on the doctrine that son agmnit dememie is a good defence to an indictment for assault (I Hawk. P. C. lUO. If this were not the law it would follow that any ruffian who ohoo.'io to assault a (|uiot person in the street uiiRht impose upon him the leital duty of runnintf away,oven if he were the stronger man of tho two. Ttiu passage of Halo appears to mo to bo applicable only to cases where deadly weapons are produced by way of bravado or intimidation, a case which no doubt olten occurred when people habitually carried arms and used them on veryslight prov- ocation. In such a ca^e it might reasonably be rei^arded as the duty of the person ni^saulted to retreat rather than draw his own sword, l)ut I cannot think that Hale meant to say that a man who in such a c^Lse closed with his assailant and took hissword from him would be acting illegally, or that if in doing so tho assailant were thrown down and acoidently killed by the fall tho person causing his death would be guilty of felony. The minuteness of tho law contained in the authorities on which this Article is founded is a curious relio of a time when police was lax and brawls frequent, and when every gentleman wore arms and was supposed to be familiar with the use of thom. It might, I think, be simplified in the present day with advantaKO.j THE CRIMINAL LAW. 196 [without any fault of his owu, and otherwise than in the cases provided for in clauses (a.) and (6.), but with a deadly weapon, it is his duty to abstain from the intentional in- fliction of death or grievous bodily harm on the person assaulting, until he (the person assaulted) has retreated as far as he can with safety to himself. But any person unlawfully assaulted may defend him- self on the spot by any force short of the intentional infliction of death or grievous bodily harm ; and if the assault upon him is notwithstanding continued, he is in the position of a person assaulted in the employment of lawful force against the person of another. {d.) ' If two persons quarrel and fight neither is re- garded as defending himself against the other until he has in good faith fled from the fight as far as he can, but if either party does in good faith flee from the fight as far as he can, and if, when he is prevented, either by a natural obstacle or any other cause of the same nature, from flying farther, the other party to the fight follows and again assaults him, the person who has so fled may defend him- self, and may use a degree of violence for that purpose proportioned to the violence employed against him. ' ' IlluHrationf. (1.) '^ A, a madman, violently attacks B in such a manner as to cause instant danger to B's life. B may kill A, though A is not committing any crime. (2.) '■^ A, an officer, has a warrant to arrest B on civil process. B flies. A overtakes him, and B assaults A. A may use any degree of violence to B necessary to repel his assault and to arrest him. (3.) * A, a trespasser, enters B's house and refuses to leave it. B has a right to remove A by force, but not to strike liim even if he cannot other- wise got him out of the liouse. If on the application of such force A assaults B, B may use any degree of force necessary to defend himself and to remove A from the house. ' [See the niithnritie!< for clause (6). - This seems to follow dirootly from the authorities cited. So, if A were under a mil- take of fact which B h.od no time to explain, -,:,^-,t»^ " 1 East, P. C. 307. * 1 Hale, P. C. 486.] o2 196 A DIGEST OF ^ Article 25*7. lawful force. ^ [It is not a crime to inflict bodily harm by way of lawful correction, or by any lawful application of force (other than those hereinbefore mentioned) to the person of another ; but if the harm inflicted on such an occasion is excessive the act which inflicts it is unlawful, and, even if there is no excess, it is the duty of every person applying the force to take reasonable precautions against the infliction of other or greater harm than the occasion requires. Illustrations. (1.) ^ A, a schoolmaster, beats B, a scholar, for two hours with a thick stick. Such a beating is unlawful. (2.) * A kicks B, a trespasser, out of his house, in order to force him to leave it. B is killed. The kick is an unlawful act. (3.) (Submitted.) * A, the governor of a gaol, flogs B, a criminal, under the sentence of a court. It is A's duty to cause the surgeon of the gaol to be in attendance to see that no unintended injury is inflicted on B. "Article 258. superior orders to employ force. In all cases in which force is used against the person of another, both the person who orders such force to be used and the person using that force is responsible for its use, and neither of them is justified by the circumstance that 'S. D. Art. 201. -[It would be inconsistent with the plan of this worl< to try to enumerate all the cases in which force may be lawfully applied to the person of another. In 1 Russ. Cr. 767-73, oases will be found as to excessive violence in executing legal process '.R. v. HugginitStT. 882, p. 872. Pressing for the sea service {p. 768). Captains in the merchant service: II. V. Leggetts, 8 C. & P. 191 (p, 773). Correction of children and servants (773-7). See Draft Code, 8. 66.] Mitchelly. Dories, 2 U. C. Q. B. 430; Belch v. Aniott, 9 U. CO. P. 68; The Bridgetealer, 6 Q. L. R. 29(» ; J{. v. Fanetif, 5 L. C. J. 167 ; I{. v. Stotee, 2 G. & 0. 121. '■'Ui. v. Hoplcv, 1 Russ. Or. 776; 2 F. & F. 202. * WUd'a Case, 1 Russ. Cr. (5th ed.) 687; 2 Lewin, 214.] "See Art. 11; * S. 1). Art. 202. THE CRIMINAL LAW. Wl [he acts in obedience to orders given him by a civil or military superior, but the fact that he did so act, and the fact that the order was apparently lawful, are in all cases relevant to the question whether he believed, in good faith and on reasonable grounds, in the existence of a state of facts which would have justified what he did apart from such orders,' or which might justify his supe- rior oflBcer in giving such orders. Illustrations. • (1.) " A, a marine, is ordered by his superior officer on board a man-of- war to prevent boats from approaching the ship, and has ammunition given him for that purpose. Boats persisting after repeated warnings in approaching the ship, A fires at one and kills B. This is murder in A although he fired under the impression that it was his duty to do so, as tlie act wai" not necessary for the preservation of the ship (though desir* able for the maintenance of discipline). (2.) ''A, the driver of an engine, orders B, the stoker (whose duty it is to obey his orders), not to stop the engine. The train runs into another in consequence, and C is killed. B is justified by A's order. (3.) * (Submitted). A, a civil magistrate, directs B, a military officer, to order his men to fire into a mob. B gives the order, it is obeyed, and C, a common soldier, shoots I) dead. The question whether A, B, and C respectively committed any ofience depends on the question wliether each of them respectively had reasonable grounds to believe, and did in fact • [As to this see 1 Hist. Cr. Law, 205. 2 if. V. r/(om(M, 1 Russ. Or. 732 ; 4 M. it S. 441. ' R. V. Tmincr, 4 F. k F. 105; I Rusj. Or. (5t(i ed.) 837, 83S. Tho language of Willes, J., in this case seems to be a little too wide, unless it is taken in connection with the particular facts. ' Whether C would commit a military offence if he refused to obey B's order because he rightly thought it unreasonable, is a question which would have to be decided by a court martial. I should suppose that cases might be imagined in which even a court martial would hold that a military inferior might and ought to disobey orders on the ground of their illegality. An officer, t>.(7., who commanded his men to fire a volley down Fleet Street when there was no appearance of "a disturbance, or to shoot a child of four years old runnins away during a riot, or to desert to tho enemy, or to shoot a supe- rior officer, ought to be disobeyed, and I suppose that ii soldier who obeyed such an order might be punished by a court martial. That such acts as shooting peaceable people wantonly, or a child of four years old intentionally, even in a riot, would bo murder as well in tho soldier as in the officer cannot bo doubted. If so, it seems impossible to sug- gest any other principle as to tho effect of superior orders than tho one mentioned in the text. It is indeed essential to the maintenance of the supremacy of the common law over military force.] 198 A DIGEST OF [believe in good faith, either that what they did was ne-v^sary to suppress a dangerous riot, or in the case of B, that A, or in the case of C, that B, had reasonable grounds to believe, and did believe, that the order given was necessary to suppress a dangerous riot. A's direction to B, and B's order to C, would not necessarily justify B or C in what they did, but would be facts relevant to the question whether they believed upon rea- sonable grounds as aforesaid. ^Article 259. : •■ - consent to bodily injury. The consent of a person killed or maimed to the inflic- tion of death or bodily harm, affects the criminality of such infliction to the extent defined in Articles 260-265, both inclusive. In each of these Articles the word " Consent " means a consent freely given by a rational and sober person so situated as to be able to form a rational opinion upon the matter to which he consents. Consent is said to be given freely when it is not procured by force, fraud, or threats of whatever nature. ^Article 260. right to consent to bodily injury for surgical purposes. Every one has a right to consent to the infliction of any bodily injury in the nature of a surgical operation upon himself or upon any child under his care, and too young to exercise a reasonable discretion in such a matter, but such consent does not discharge the person perform- ing the operation from the duties hereinafter defined in relation thereto. > S. D. Art. 203. « S. D. Art. 204. '[I know of no authority for these propositions, but I apprehend they require none. The existonoo of surgery as a profession assumes their truth.] THE CRIMINAL LAW. 199 'Article 261. surgical operation on person incapable of assent. [(Submitted.)^ If a person is in such circumstances as to be incapable of giving consent to a surgical operation, or to the infliction of other bodily harm of a similar nature and for similar objects, it is not a crime to perform such operation or to inflict such bodily harm upon him without his consent or in spite of his resistance. Illustrations. (1.) A is rendered insensible by an accident which renders it necessary to amputate one of his limbs before he recovers his senses. The amputa- tion of his limb without his consent is not an oflFence. (2.) If the accident made him mad, the amputation in spite of his resistance would be no otfence. (3.) B is drowning and insensible. A, in order to save his life, pulls B out of the water with a hook which injures him. This is no offence. "^ ^Article 262. right to consent to bodily injury short of maim. * Every one has a right to consent to the infliction upon himself of bodily harm not amounting to a maim. A maim is bodily harm whereby a man is deprived of the use of any member of his body or of any sense which he can use in fighting, or by the loss of which he is gener- allv and permanently weakened, but a bodily injury is not a maim merely because it is a disfigurement. Illustration. (1. ) It is a maitii to strike out a front tooth. It is not a maim to cut off a man's nose. Castration is a maim. •S. D. Art. 205. MOraftCode.a. 67.] 'S. D. Art- 206. * [The positive part of this Article is proved thus :— Injuries short of maims are not criminal at common law unless they are assaults, but an assault is inconsistent with con- sent. As to the definition of a maim, see 1 Hawk. P. C. 107. He expressly mentions castration.] 200 A DIGEST OF ^ Article 263. » , no right to consent to infliction of death. ^ [No one has a right to consent to the infliction upon himself of death, or of an injury likely to cause death, in any case (other than those mentioned in Article 260), or to consent to the infliction upon himself of bodily harm amounting to a maim, for any purpose injurious to the public. • Illustrationi*. (1.) •■' A and B agree to fight a duel together with deadly weapons. If either is killed or wounded his consent is immaterial. (2.) * A gets B to cut off A's right hand, in order that A may avoid labor and be enabled to beg. Both A and B commit an offence. ^ Article 264. no right to consent to injury constituting a breach of the peace. ^ No one has a right to consent to the infliction of bodily harm upon himself in such a manner as to amount to a breach of the peace, or in a prize fight or other exhibition calculated to collect together disorderly per- sons. 1 S. D. Art. 207. ' - [Draft Code, s. 69. ^It.v.Barronei, Dear. 51. The law hns never, I believe, been dif^puted. It is also immaterial whether the duel is oris not what is called fair. Soe, too, authorities as to suicide, Article 2.'i3. * 1 Inst. 107 a, b. I think the qualification in the Article," for any purpose injurious to the public," must bo supplied. It seems absurd to say that if A gets a dentist to puUout a front tooth of A's because it is unsightly, though not diseased, A and the dentist both commit a misdemeanor. AVhen it was an essential part of a common soldier's drill to bite cartridges I believe that it was not an uncommon military offence to get the front teeth pulled out, and this would, I presume, be an oifence at common law also,] t^S. D. Art. 208. « [Foster, 260: 1 East P. C. 270 ; li. v. Billingham, 2 C. & P. 234; Ji. v. Perkim.iC & P. 537 ; Ji. V. Coney, L. R. 8 Q. B. D. 531.] THE CRIMINAL LAW. 201 ' Article 265. consent to be put in danger. ^ [It is uucertain to what extent any person has a right to consent to his being put in danger of death or bodily harm by the act of another. Illustration. . (1.) A, with B's consent, wheels B in a barrow along a tight rope at a great height from the ground. C hires A and B to do so, D, E, and Fpay money to C to see the performance. B is killed. Qiuvre, are A, C, 0, E, and F, or any and which of them, guilty of man- slaughter ? ^Article 266. accidental infliction of bodily injury by lawful act — what acts are lawful. ' * It is not a crime to cause death or bodily harm acci- dentally by an act which is not unlawful, unless such act is accompanied by an omission, amounting to culp- able negligence as defined in Article 26*7, to perform a legal duty imposed either by law or by contract on the person who does the act. An effect is said to be accidental when the act by which it is caused is not done with the intention of causing it, and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done, to take reasonable precautions against it. ' S. D. Art. 209. - [There is, so far as I know, no authority on this point, but the principle on which prize fights have been held to be illegal might include such a case. Such an exhibition might also under circumstances be a public nuisance. To collect a large number of people to see a man put his life in jeopardy is a loss coarse and boisterous proceeding than a prizefight, but is it less immoral ?] ^S.D.Art. 210. ♦ [1 Hale, 471, &o. ; Foster, 258 ; 1 Ea*t, P. C. 260; 1 Russ. Cr. (5th ed.) &14. I cannot give any precise authority as to acts Involving penalties.] 202 A DIGEST OF [The words " unlawful act " include — (i.) acts punishable as crimes [or involving penalties] ; (ii.) ' acts constituting actionable wrongs ; (iii.) ^ acts contrary to public policy or morality, or injurious to the public. Other acts are not unlawful within the meaning of this Article, though they may involve private im- morality. Jlluntrations. (1.) ' A, a Bchoolmaster, corrects a scholar in a manner not intended or likely to injure him, using due care. The scholar dies. Such a death is accidental- (2.) * A turns B, a trespasser, out of his house, using no more force than is necessary for that purpose. B resists, but without striking A. They fall in a struggle and B is killed. Such a death is accidental. (3.) * A, a workman, throws snow from a roof, giving proper warning. A passer-by is nevertheless killed. Such a death is accidental. (4.) ^ A takes up a gun, not knowing whether it is loaded or not, points it in sport at B and pulls the trigger. B is shot dead. Such a death is not accidental. If A had had reason to believe that the gun was not loaded, the deatli would have been accidental, although he had not used every possible precaution to ascertain whether the gun was loaded or not (5.) * A seduces B, who dies in her confinement. The seduction, though an immoral, is not an unlawful act, within the meaning of this Article.] • [lllusj!. Cr. 812-21, for cases ; see especially the summing up of Tindal, C. J., in 1 Lew. 179; 1 Russ. Or. 817. Halo, East, and Foster make a distinction between main in se and viala prohibita, which I think can no longer be regarded as law. '^ See authorities for Article 264. " 1 Hale, 473. The same law of course applies to all oases of lawful correction. It would also, I think, apply to Illustration (2), and to all other cases in which force is law- fully applied by one person to the person of another. It is, of course, impossible in a work like this to attempt an enumeration of those cases. * Founded on Foster, 262. ^ Founded on Foster, 263. In one of the cases referred to in Foster, the prisoner was convictedof manslaughter, although he had tried the pistol with the rammer. Poster, with reason, thinks this " an extremely hard oiso." Dixon v. Bell, 5 M. & S. 198, may be taken as illustrating the line between negliitence, for which a man is civilly, and negli- gence for which he is criminally, responsible. Aln this caae h-id caused the priming to be taken from a loaded gun, and loft it in a place where a little girl playing with it shot a little boy. The boy recovered damages against A, but if he had died I do not think A would have been guilty of felony. The case is juat on the line. " No one ever suggested that this would be manslaughter, but it exactly marks the distinction between illegality and immorality.] THE CRIMINAL LAW. 208 CHAPTER XXIII. OF CULPABLE NEGLIGENCE AND OF DUTIES TENDING TO THE PRESERVATION OF LIFE. ^Article 267. death or bodily injury caused by omission to discharge a legal duty. ^ [Every one upon whom the law imposes any duty,^ or who has by contract ^ or by any wrongful act taken upon himself any duty, tending to the preservation of life, and who neglects to perform that duty, and thereby causes the death of any person, commits the same offence as if he had caused the same effect by an act done in the state of mind, as to intent or otherwise, which accompanied the neglect of duty. Provided, that no one is deemed to have committed a crime only because he has caused the death of or bodily injury to another by negligence which is not culpable. What amount of negligence can be called culpable is a 1 S. D. Art. 211, ^ [The first part of this Article is illustrated by all the lUus'rationsof the other Arti- cles in the chapter. The whole subject is treated at great length in Wharton on Homi- cide, chapter iv. s. 72, p. 160. Dr. Wharton classifies negligent homicide under the fol- lowing heads (generalities apart) : 1. Use of dangerous things. 6. The care of children, a, D. & U. 248. " I{ in mi 14 It'll' n Caw, 1 Low. 180. Probably in suoh a case there would be a civil liability; 8oe Bui-n,- V. Bondle, 2 II. k C. 722. < Foster, 2(f5. " It. V. Allen, 7 0. A P. 153 ; /;. v. (ireen, 7 C. & P. 156. _ _^_ « n. V. Van Bulvhell, .' C. & P. U2J ; fl. v. St. John Long (Igt case), 4 C. & P. 308 ; (2d ewe) 4 C. A P. 423 ; R. V. Vt'lllumuon, 3 C. ifc P. 036. ^ Benntit'i Case, Bell, 0. C. 1.] -—7- " ~~ T~ " THE CRIMINAL LAW. 205 [(7.) ^ A being under a legal duty to supply medical aid for his son B, who has confluent small-pox, refuses to do so from religious motives, and B dies. It must bo shewn that B's life would probably have been pro- longed if medical aid had been provided, before A can be convicted of manslaughter. ''Article 268. causing death by omissions other th4n those mentioned in article 26t. ^ It is not a crime to cause death or bodily injury, even intentionally, by any omission other than those referred to in the last Article. Illmiralion, (1.) A sees B drow^ning and is able to save him by holding out his hand. A abstains from doing so in order that B may be drowned, and B is drowned. A has committed no offence. * Article 269. duty to provide necessaries of life. ® Every person under a legal duty, whether by contract or by lavv^, or by the act of taking charge, wrongfully or otherwise, of another person, to provide the necessaries of life for such other person, is criminally responsible if death is caused by the neglect of that duty, lud if the person to whom the duty is owing, is, from age, health, insanity, or any other cause, unable to withdraw himself from the control of the person from whom it is due, but not otherwise. Some of the duties of parents towards children and of masters towards apprentices are defined in Articles 307, 338, 339.- ' Ui. V. Morbv, L. R. 8 Q. B. D. 571.1 " S. D, Art. 212. ^ [li. V. Smith, 2 C. k P. 440. This Bubjoct is discussed in a striliinR manner by Lord Sdacaulny in hii) notes on the Indian Ponal Code ; see, too, Wharton on Homicide, § 72.] -t ^Article 271. • • - WHEN DIRECT PERFORMANCE OF DUTY IMPOSSIBLE. " [It is the legal duty of a person who is unable to pro- vide for any person necessaries which he is legally bound to provide for him to make application to the proper authorities for parochial relief in cases in which such authorities are legally bound to furnish such relief. ^ Article 272. duty of care in doing dangerous acts. ' * It is the legal duty of every one who does any act which without ordinary precautions is, or may be, dangerous to human life, to employ those precautions in doing it. • JlluMrations. (1.) •'' It is the duty of persons liavinj? charge of dangerous things, animals ur machinery, to take .:aro of tliem. (2.) ■■ Workmen are employed to throw snow oft' the roof of a house. It is th'jir duty to see whether people are passing, and to give warning before they throw it down. (3.) * It is the duty of people riding, driving, or sailing, to be careful. (4.) " A turns out a vicious hor.se to graze on a common on which people are likely to pass. It is his duty to take proper precautions against its injuring passers-by. (5.) ' A, B, and C went to practice with a rifle which carried a mile. A ' S. D. Art. 215. - [ l{. V. MahhHl, 5 Cox. C. C 330 ; 1 Rugg. Or. t558.] •' S. D. Art. 216. Hllowfiir Clin it bo siiid to be a loeal duty to abstain from doing such acts wantonly even with prcoautions? Suppo.- S. D. Art. 218. » [Draft Code, 88. 165,166, « R. V. Poulton, 5 C. X- P. 329. *J{.v. Bmin,6C. & P. 349. » i?. V. Trilloe, Car. & Mar. 650. ' Authorities collected, 1 Rui». Cr. (5th od). 646. ' H. V. Enoch, 5 C. & P. 539, and see note to the case ; li. v. Wright, 9 C. & P. 764 ; B. v. &«.•», 7 C. A P. 850.] «S. D. Art.219. ' [See Draft Code, as. 167-173. Dr. Wharton's work on Ilomicido contains an interestinsr and elaborate ohapter(ch. xii. §§ 358-389), entitled " Casual Connection," into which some] 1» 210 A DIGEST OF [omission, but for which the person killed would not have died when he did, and which is directly and immediately connected with his death. The question whether a given act or omission is directly and immediately connected with the death of any person is a question of degree de- pendent upon the circumstances of each particular case. (Submitted.) But the conduct of one person is not deemed for the purposes of this Article to be the cause of the conduct of another, if it affects such conduct only by way of supplying a motive for it, and not so as to make the first person an accessory before the fact to the act of the other. This Article is subject to the provisions contained in the next two Articles. [discussion is introduced on the distinction between causes and conditions: a distinction of which Dr. Wharton maintains, and of which Mr. Mill (sec his Logic, vol. i. p. 398,&c.> denies, the solidity. For practical purposes, I think the Article in the text is sufficient) and if this were the proper place, I should be disposed to discuss some of Dr. Wharton's positions. The latter part of the Article and the Illustration (6) intended to explain it, must, I think, be law ; but I know of no direct authority on the subject. The maxim " In Jure non remota cawm serl proxima fpcctatur" has nodoubt a bearing on the subject (see Bacon's Maxims, 35-9, and Broom's Maxin^s, 216-30), but it is very vague. Lord Bacon says itdoes not apply to " criminal acts except they have a full interruption." His illustration is, — A fires a piscolat B, and mi,«ses him, and runs away. B pursues A. A stabs B with a dagger. " If the law should consider the last impulsive cause, it should say it was in his own defence, but the law is otherwise, for it is but a pursuance and execution of the first murderous intent." Surely in this case the stab is the immediate cause of B's death ; A's state of mind is another matter, and is to be inferred from facts. The law as to accessories and incitement appears to show the limit to which participation in a crime can be carried. Unless the line is drawn there it is impossible to say how far it would extend. Illustration (0) is a prosaic version of Othello. lago, however, in Act iv. sc. 1, say.s when asked to give poi(-on, "Do it not with poison, strangle her in her bed." This would cleirly make him an accessory. To take a humbler instance, the catastrophe of Oliver Twist might, perhaps, fall within Illustration (6). In ch. xlvii. of that work, Fagin, after getting Sikcs to say he would murder any one who should betray him, wakes up Noah Ciaypole and makes him tell Sikes that the girl Nancy hud betrayed him, and, as Sikes rushes out in a passion, says, " You won't be too violent. Bill ; I mean not too violent for safety." I think that the whole conversation taken together would be evidence to go toa jury, that Fagin did " counsel " or " procure " the murder committed by Sikes, which would make him an accessory before the fact, but if he had ccnfincd himself to merely telling Sikes what Ciaypole said he had heard , it would not have been enough. After all there was only the uncorroborated testimony of an accomplice to prove what he said, and Ciaypole doer not seem to have been by when the most damaging words were spoken.] THE CRIMINAL LAW. 211 Illmlrations. [(1.) ' A substitutes poison for medicine, which is to be administered to C by B. B innocently administers the poison to C, who dies of it. A has killed C (2.) '-' A gives a poisoned apple to his wife B, intending to poison her. B, in A's presence, and Avith his knowledge, gives the apple to C, their child, whom B did not intend to poison. A not interfering, C eats the apple and dies. A has killed C. (3.) •' A, an ironfounder, ordered to melt down a saluting cannon which had burst, repairs it with lead in a dangerous manner. Being fired with an ordinary charge, it bursts and kills B. A has killed B. (4.) * A, B, and C, road trustees under an Act of Parliament, and as such under an obligation to make contracts for the repairs of the road, neglect to make any c,ach contract, whereby the road gets out of repair, p' -^ D passing along it is killed. A, B, and C have not killed D. {b.) ^ A by his servants makes fireworks in a house in London contrary to the provisions of ajx Act of Parliament (9 & 10 Will. 3 c. 77). Through the negligence of his servants, and without any act of his, a rocket ex- plodes and sets fire to another house whereby B is killed. A has not killed B. (6.) A tells B facts about C in the hope that the knowledge of those facts will induce B to murder C, and in order that C may be murdered ; but A does not advise B to murder C ; B murders C accordingly. A has not caused C's death within the meaning of this Article. " Article 216. when an act is the remote cause of death or one of several causes. A person is deemed to have committed homicide, although his act is not the immediate or not the sole cause of death in the following cases — (a.) " If he inflicts a bodily injury on another which causes surgical or medical treatment, which causes death. In this case it is immaterial whether the treatment was 1 [Donellan't Case. Seo my Gen- View, Or. L. 338. - Saunden' Caxe, 1 Hale, P. C- 436. » J?. V. fare, 8 C. & P. 163. *R. V. Pocock, 17 Q. B. 34. ___ ^ _„1^-.- '-'■ " fl. V. £enne«, Bell, C. C. 1.] " ' »S.D.Art.220. ' [Hale, 418 ; Illustrations (1), (2). Draft Code, s. 173.] p2 212 . A DIGEST OF Iproper or mistaken, if it was employed in good faith, and with common knowledge and skill, but the person inflicting the injury is not deemed to have caused the death if the treatment which was its immediate cause was not employed in good faith, or was so employed with- out common knowledge or skill. {b.) ^ If he inflicts a bodily injury on another, which would not have caused death if the injured person had submitted to proper surgical or medical treatment, or had observed proper precautions as to his mode of living. (c.) ^ If by actual violence or threats of violence he causes a person to do some act which causes his own death; such act being a mode of avoiding such violence or threats, which under the circumstances would appear natural to the person injured. {d.) ^ If by any act he hastens the death of a person fiufiering under any disease or injury which apart from such act would have caused death. (e.) ' If his act or omission would not have caused death unless it had been accompanied by the acts or omissions of the person killed or of other persons. Illustrations. (1) ^ A wounds B in a duel. Competent surgeons perform an operation whicli they in good faith regard as necessary. B dies of the operation, and it appears tliat the eurgeons were mistalien as to the necessity for the operation. A has killed B. ' [Illustration (3). Draft Code, s. 172. -Illustration (4). Draft Code. s. 167. *1 Hale, 428; Illustration (5). Draft Code, s. 171.] Ai a practising physician, who kept a hospital for the sick, on three successive days forced the person of B, a patient then under his control in such hospital, she being in a condition of health that rendered sexual intercourse dangerous even with her consent. B died on the sixth day after the last occasion on which she had been ravished, and her death if not caused was hastened thereby. Held suflSeiont cv'deuce of murder to justify A's surrender under the Ashbur- ton Treaty ; In re Weir, 14 0. R. 389. * [See Illustrations (0) and (7). See also E. v. Lonohottom, 1 Russ. Cr. (5th ed.) 830 ;3 Cox, 439. J{. V. Ledger, 1 Russ. Cr. (5th ed.) 835, 6 ; and Mr. Greaves' note. This case is a very peculiar one. ' Ji. V. Pum, 1 Cox C. C. 339 ; 1 Russ. Cr. 702.] THE CRIMINAL LAW. 213 [(2.) * A gives B a v/ound. C, a surgeon, applies poison to the wound, either from bad faith or by negligence. B dies of the poison. C and not A has killed B. (3.) ''■ A injures B's :3nger. B is advised by a surgeon to allow it to be amputated, refuses to do so, and dies of lockjaw. A has killed B. (4.) ■' A violently beats and kicks B, his wife, on the edge of a pond. She, to avoid his violence, throws herself into the pond and is drowned. A has killed B. (5.) * A strikes B, who is at the time so ill that she could not possibly have lived more than six weeks if she had not been struck. B dies earlier than she would otherwise have died in consequence. A has killed B. (6.) * A and B, the drivers of two carts, race along a high road. C is lying drunk in tlie middle of the road. One or other or both of the carts run over C and kill him. In either case both A and B have killed C. (7.) " It is the duty of A to put up air-headings in a colliery where they are required. It is the duty of B to give A notice where an air- heading is required. But A has means, apart from B's report, of knowing whe- ther such air headings are required or not. A omits to put up an air- heading, B omits to give A notice that one is wanted. An explosion fol- lows, and C is killed. Both A and B have killed C. ^Article 27*7. when causing death does not amount to homicide. A person is not deemed to have committed homicide, although his conduct may have caused death, in the fol- lowing cases : («.) ** When the death takes place more than a year and a day after the injury causing it. In computing the period, the day on which the injury is inflicted is to be counted as the first day ; (6.) (It is said) '' "When the death is caused without any » [Founded on 1 Hale, 428. '-7^ V. //o^/aiuZ, 2 Moo. and Rob. 351. ' ■ * 11. V. Eeanii, 1 Russ, Cr. (oth ed.) 651 ; R. v. Wager, tried at Derby Summer Assizes, 1864, was precisely similar- See, ui/on this subject, Wharton on Homicide, §§ 374-5. If the intention was to escape further ill usage by suicide, the case would be altered. < 7f. V. Jf/efcAcr, 1 Russ. Cr. 703. ^ K.y. Sieindull,2C. kVL.%iQ- ' __ ^.^.^^^.---■■-^-^f--—----' <^li.v. Hainea,2C. Si. K- 368.] -■■--^ ■"'""'"'"'"':'" ' ' - ' ' S. D. Art. 221. 8 [1 East, P. C. 343, 4 ; 1 Russ. Or. (5th ed.) 673, 4 ; Draft Code, s. 169. *1 Hale, 429. Lord Hale's reason is that " secret things belong to God; and hence it was that before IJa. l,o. 12, witchcraft or fascination was not feloay, because it wanted] 214 A DIGEST OF [definite bodily injury to the person killed, but this does not extend to the case of a person whose death is caused not by any one bodily injury, but by repeated acts affect- ing the body, which collectively cause death, though no one of them by itself would have caused death ; (c.) (It seems) ' When death is caused by false testi- mony given in a court of justice. Illuslrations. (1.) ■' A by a long series of acts of ill-treatment, no one of which by itself would cause death, causes the death of B. A has killed B. [a trial" (i.e. I suppose because of the flifliculty of proof). I suspect that the fear of encouraging prosecutions for witchcraft was the real reason of this rule. Dr. Wharton rationalizes the rule thus : " Death from nervous causes docs not involve penal conse- quences." This appears to me to substitute an arbitrary quasi scientific rule for a bad rule founded on ignorance now dispelled. Suppose a man were intentionally killed by being kept awake till the nervous irritation of sleeplessness killed liim, might not this be murder? Suppose a man kills a sick person intentionally, by making a loud noise which wakes him when sleep gives him a chance of life; or suppose knowing that a man has aneurism of the heart, his heir rushes into his room, and roars in his ear, " Your wife is dead!" intending to kill and killing him, why are not these acts murder? They are no more "secret things belonging to God" than the operation of arsenic. As to the fear that by admitting that such acts are murder, people lu.jht be rendered liable to prose- cution for breaking the he:irts of their fathers or wives by bad conduct, the answer is that such an event could never be proved. A long course of conduct, gradually " breaking a man's heart," could never be the " director immediate " cause of death. If it was, and it was intended to have that effect, why should it not be murder ? In U.y.Tuwers, 12 Cox C. C. 530, a man was convicted before Denman, J., of manslaughter, for frightening a child to death (see Wharton on Homicide, § .■>72, on this case).] In R. v. Diigal, 4 Q. L. R. 350, evidence of deo,th from syncope caused by menaces of personal violence and assault though without battery was held sufficient to support a conviction for manslaughter. [Lord Hale doubts whether voluntarily and maliciously infecting a person of the plague, and so causing his death, would bo murder (1. 432). It is hard to see why. He says that "infection is God's arrow." A different view was taken in the analogous case of It. v. Greenwood, 1 Russ. Cr. 07.3 ; 7 Cox, C. C. 404. As to the proviso, see Illustration (1). » Illustration (1.) Draft Code, s. 168. - B. V. Self, 1 East, P. C. 228, 227, and 1 Russ. Cr. 652 ; li.v. Squire, 1 Russ. Cr. 653.] The immediate cause of the woman's death was acute inflammation of the liver that might have been occasioned by a blow or a fall against a hard substance. There was evidence that about three weeks before her death, the prisoner, her husband, knocked her down with a bottle, that she fell against a door and remained insensible for some time ; and that she was confined to her bed soon after and never recovered- There was also evidence of frequent acts of violence within a year on his part by knocking her down and kicking her in the side. Held sufficient to sustain a conviction for manslaughter ; R. v. Theal, 21 N. B. R. 449; Theal v. R. 7 Can. S. C 397. THE CRIMINAL LAW. 215 [(2.) • A and B, in order to jret a reward, ottered for the conviction of highway robbers, conspire to>retlierto brin;: a false accusation of higliway robbery against C, whereby C is convicted and executed. A and B do not kill C/ - Article 2*78. when homicide is unlawful. ' •'' Homicide is unlawful, (a.) When death is caused by an act done with the in- tention to cause death or bodily harm, or which is com- monly known to be likely to cause death or bodily harm, and when such act is neither justified nor excused by the provisions contained in Chapter IV. or Chapter XXII. ; {b.) When death is caused by an omission, amounting to culpable negligence, to discharge a duty tending to the preservation of life, whether such omission is or is not accompanied by an intention to cause death or bodily harm ; (c.) When death is caused accidentally by an unlawful act.] 1 [It. V. Mac Daniel and Others, 19 St. Tr. 7-46, and see partioularly the note 810-14, and Foster, 131, 132.] 2 S. D. Art. 222. ■' [This Article suras up the result of the preceding chapter. See Appendix Note VIL Draft Code, s. IG".] 216 A DIGEST OF CHAPTER XXV. 1 murder— mansla ughter— attempts to commit murder —concealment of birth. ^Article 279. manslaughter and murder defined. ^ [Manslaughter is unlawful homicide without malice aforethought. Murder is unlawful homicide wdth malice aforethought. Malice aforethought means any one or more of the fol- lowing states of mind preceding or co-existing with the act or omission by which death is caused, and ^ it may exist where that act is unpremeditated. («.) An intention to cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not ; (6.) Knowledge that the act w^hich causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indilFerence whether death or grievous bodily harm ' [See 3 Ilist. Cr. Law, ch. xxvi. pp. 1-107. « 8. D. Art. 2215. See Appendix Note VIIL ■' For the autliorifii'S for this Article see Appcniiix Note VIII. Draft Code, s. 174-1T7. * Coke's first case of implied malice ic malice implied from the want of provocation. A man who wantonly or on a sliglit cause intentionally and violently kills another, shews by that act, not indeed the existence of hatred of long standing, but the existence of deadly hatred instantly conceived and executed, which is at least as bad if not worie. This in the strict sense of the words is malice aforethought. *" Ilobbes well observes : •' it is malice forethought, though not long forethought." (Diah/fe. .' of the Common Lawo. " Works," vi. 85.) And it is not by law neco.-siiry that it should be long. If a slight pro- vocation does not reduce murder to manslaughter, a fortiori, the total absence of all pro- ▼ooation, and the mere rapidity with which the execution of a cruel v ,■ • .ficked design follows on its Conception cannot have that eflfeot. For oasea of slight provooation, see 1 Bust. Or. OSO-2, and cases there oullected.] THE CRIMINAL LAW. 217 [is caused or not, or by a wish that it may not be caused ; (c.) An intent to commit any felony whatever ; {d.) An intent to oppose by force any officer of justice on his way to, in, or returning from the execution of the duty of arresting, keeping in custody, or imprisoning any person whom he is lawfully entitled to arrest, keep in custody, or imprison, or the duty of keeping the peace or dispersing an unlawful assembly, provided that the offender has notice that the person killed is such an officer so employed. The expression " officer of justice " in this clause in- cludes every person who has a legal right to do any of the acts mentioned, whether he is an officer or a private person. Notice may be given, either by words, by the produc- tion of a warrant, or other legal authority, by the known official character of the person killed, or by the circum- stances of the case. This Article is subject to the provisions contained in Articles 280-282, both inclusive, as to the effect of provo- cation. Illustrationn. (1.) ' A knowing that B is suffering from disease of the lieart, and in- tending to kill B, gives B a slight push, and thereby kills B. A commits murder. (2.) ' A in the last illustration pushes B unlawfully, but Avithout know- ledge of the state of health ur intention to kill him, or do him grievous bodily harm. A commits manslaughter. If A laid his hand gently on B to attract his attention, and by doing so startled and killed him, A'a act •would bo no offence at. all. (3.) ^ A finding B asleep on straw, lights the straw, meaning to do B serious injury, but not to kill him. B is burnt to death. A commits murder. ' [I know of no direct authority for tlieso illustrations, but they follow directly from the principles stated in the note.] A, profiting by \Vi weakness, encouriities him to drink intoxioatini? liquors in such quuntitie!< hm to cause death. A commits murder if ho intend- ed to cause death, and manslaughter if the liquor was given not out of good fellowship but with the intention of raakinR B ill or drunk ; 1{. t. Lortie, 9 Q. L. R. ii52. - lEirington'ti Cane, 2 Lewin, 217.] 218 A DIGEST OF [(4.) ^ A waylays B, intending to beat, but not intending to kill him or do him grievous bodily harm. A beats B and does kill him. This is manslaughter at least, and may be murder if the beating were so violent as to be likely, according to common knowledge, to cause death. (5.) - A strikes at B with a small stick, not intending either to kill or to do him grievous bodily harm. Tlie blow kills B. A commits man- slaughter. {().) ^ A, recently delivered of a child, lays it naked by the side of the road and wholly conceals its birth. It dies of cold. This is murder or manslaughter, according as A had or had not reasonable ground for be- lieving that the child would be preserved. (7.) ' It is A's duty to put a stage at the mouth of the shaft of a col- liery. He onuts to do so. A truck falls down the shaft in consequence and kills B. If by omitting to erect the stage A intended that B's death should be caused, A is guilty of murder. If the omission was caused only by the culpable negligence of A, and without any intention to kill or injure B, or a reckless disregard to the chance of his being killed, A is guilty of manslaughter. (8.) " A, for the purpose of rescuing a prisoner, explodes a barrel of gunpowder in a crowded street and kills a number of persons, intending to explode the barrel of powder in a crowded street. A commits murder, although he may have no intention at all about the people in the street, or may hope that they will escuiio injury. 1 [Post. 250. - Jiowki/'ji Cane, Fost. 294, remarking on earlier reporters ; and see 1 Russ. Cr. 685, whore gome oll.er cases are Kiven. ^ U. V. Walterx, C. k M. 1()4, and 1 Ru??. Cr. <)7o. Tliis case appears to me to illustrate tlie true doctrine on tiie subject better than the old and often quoted case of tlio woman who left hor cliiid in a place wlicro it was struck by a kite and killed. The point of that case I take to be that the striking by a kite was an occurrence sufficiently likely to impose upon the mother the duty of guarding against it. Kites having been almost exterminated in England their habits are forgotten. Uutto lay a child on the ground in Calcutta would be to expose it to almost certain and speedy death from kites and other birds of prey. I have myself been struck by a kite which had just struck at one of my children.] It. v. Fenwly 3 All. 132. See also Art. ;«!>. <[/i?. V. y/i(ff//e«,D. iB. 248. ^ It. V. Denmond, Barrett o,nd Others. In this case Lord Chief Justice Cockburn said, " If a man did an act, more especially if that were an illegal act, although its immediate purpose might not be to take life, yet if it were such that life was necessarily endangered by it— if a man did sucli an net, not with the purpose of taking life, but with the know- ledge or belief that life was liKely to be sacrificed by it," that was murder ; Times Report, Apr. 28, ]8()8. It is singular that this case is noticed in Cox's Reports only for the sake of a point about evidence not the least worth reporting : see 11 Cox.C. C. 140. The case oi It. V. Allen and Othem, the Fenians executed after the Manchester Special Commis- Hon in 1807, is not. so far as I know, reported, except in 17L. T. (N.S.) 223, which reprints the letters printed in Appendix Note IX> THE CRIMINAL LAW. 219 [(9.) ^ A shoots at a domestic fowl, intending to steal it, and accident- ally kills B. A commits murder. (10.) '^ A, from wanton mischief, throws stones down a coal pit and knocks awaj' a scaffoldinj; The absence of the scaffolding causes an accident by which B is killed. A commits manslaughter. (11.) * A, a thief, pursued by B, a policeman, who wishes to arrest A, trips up B, who is accidentally killed. A commits murder. (12.) * A, having words with his wife, B, strikes her on the head with a pestle, and kills her. A commits murder, though the act was not pre- meditated. (13.) '"' A, being called names by B, a woman, throws a broomstick at her, which happens to kill her. A commits manslaughter. (14,) "A shoois at B, intending to kill him, and kills C. A commits murder. ^ Aeticle 280. EFFECT AND DEFINITION OF PROVOCATION. ^ Homicide, which would otherwise be murder, is not murder, but manslaughter, if the act by which death is caused is done in the heat of passion, caused by provoca- tion, as hereinafter defined, unless the provocation was sought or voluntarily provoked by the offender as an excuse for killing or doing bodily harm. 1 [Fo9t. 258-9, and see note. Tliis dictum (which is supported by many other autlioritics) ■was followed by Lord Chief Justice Cockburn m Barrel t's Citne. Ho »\i\i3l, "If a person scekinK to commit a felony should in the prosecution of that purpose cause, nlthough it might be unintentionally, the death of another.thnl, by the law of England, was murder. There were persons who thought and maintained that where death thus occurred, not being the immediate puipose of the person causing the death, it vfas a harsh law which made the act murder. But the Court and jury wore sitting there to administer law, not to make or mould it, and the law was wiiat he. told them." Times, April 28, 18(18.) In if. V. Sernd 16 Cox C. C. ;$1!5, Stephen, J., suggests that instead of saying that any net done with intent to commit a felony and which causes death amounts to murder, it wcuild be reasonable to say that any act known to bo dangerous to life and likely in itself to cause death, done for the purpose of committing a felony and which causes death, is ulurdcr. - [R. V. Fcnton, 1 Lewin, 179 ; 1 Russ. Cr. 817. ■' 1 Russ. Cr. 707-12 for a largo collection of cases and authorities See, too, 1 Hale, 456- 460; no distinction is taken in any of these cases as to the manner in which death is caused- * 1 Russ. Cr. 681. •'' Founded on 1 Hale, 455-6. The judges doubted whether the case wa^s murder or man- slaughter, and no judgment was delivered, but the prisoner was pardoned. This would no doubt be held to be manslaughter at the present day. Tost. 2(51; 1 Russ. Cr. 706.] ' S. D. Art. 224. nOraftCode, 8. 170.] 220 A DIGEST OF [The following acts may, subject to the provisions con- tained in Article 281, I o unt to provocation : — (a.) ' An assault and battery of such a nature as to in- flict actual bodily harm, or great insult, is a provocation to the person assaulted. (b.) - If two persons quarrel and fight upon equal terms, and upon the spot, whether with deadly weapons or otherwise, each gives provocation to the other, whichever is right in the quarrel, and whichever strikes the first blow. (c.) * An unlawful imprisonment is a provocation to the person imprisoned, but not to the bystanders, though an unlawful imprisonment may amount to such a breach of the peace as to entitle a bystander to prevent it by the use of force sufficient for that purpose. An arrest by officers of justice, whose character as such is known, but who are acting under a warrant so irregular as to make the arrest illegal, is provocation to the person illegally arrested, but not to bystanders. {(I.) ^ The sight of the act of adultery committed with his wife is provocation to the husband of the adulteress on the part both of the adulterer and of the adulteress. (e.) ^ The sight of the act of sodomy committed upon a man's son is provocation to the father on the part of the person committing the offence. (/.) " Neither words, nor gestures, nor injuries to pro- perty, nor breaches of contract, amount to provocation » [1 Rus?. Cr. 078. -' Lord Byron' » Case, 11 St. Tr. 1177 ; It v. Wullern, 12 St. Tr. 114; and I Rus?. Cr. &%- 707 where otlier oases are cited •' For the tirst part of the clause see Bwkner's Cane, 1 Russ. Cr. 680 ; K. v. U't7Acr», Ibid. For the latter part compiire HugpeVs Cane, Sir II, Ferrer's Coac, T-joliii'i Case, and Akev'a Cane, with Foster's remarks on Timlvii's Case ; 1 Russ. Cr. 753-7. See also 1 Hawk. P. C. 489 ; J{. V. Oxnx^r, 5 East 3(j8. Also Illustration (8), and Appendix Note IX.] A runaway slave who stubs and kills a person attempting to arrest and detain him, such arrest being by the law of the place lawful, oommits murder ; In re Andemon, 20 U, C. Q. B. 124. * [Cases cited, 1 R'lss. Cr. 687. I am not aware that it has ever been decided that adultery by the husband is provocation to the wife. '' n. V Fixher. 8 0. & \\ 182. » 1 East P. U. 232 ; 1 Russ. Cr. 677-9.] THE CRIMINAL LAW. 221 [within this Article, except (perhaps) words expressing an intention to inflict actual bodily injury, accompanied by some act which shews that such injury is intended ; ^ but words used at the time of an assault — slight in itself — may be taken into account in estimating the degree of provocation given by a blow. (g*.) •^ The employment of la\7ful force against the per- son of another is not a provocation to the person against whom it is employed. Illustrations- (1.) '•' A, a woman, gives B, a soldier, a slap in the face- A has not given B provocation within this Article. (2.) * A, a woman, strikes B, a soldier, with a heavy clog iolently in the face and wounds him. A has given B provocation within this Article. (3.) ^ A pulls B by the nose. A has given B provocation within the meaning of this Article. (4.) * A attempts to arrest B on an irregular warrant and in an irregular way. B shoots A dead. This is manslaughter by reason of the provoca- tion given by B to A. (5.) ' A arrests B under an irregular warrant and conveys him to gaol. C, D, and others attempt to rescue B. A resists, and one of the party shoots A dead. This is murder in C, D and all their party. (6.) * A and B, armed with swords, quarrel, draw tlieir swords, and fight. Each gives the other provocation. (7.) '■' A and B quarrel, and agree together to fight, and do fight, a duel next day. Neither gives the other such provocation as would reduce the offence to manslaughter if either is killed. ' [1 RusB. Cr. 677, note a. ; Lord Morley's Caw, 1 Hale, P. C. 455 ; li. v. Sherwood, 1 C. & K. 558, and see li. v. W. Smith, 4 F. & F. 1066. -Illustration (12). '■> Stedman'g Case, Fost. 292. ' < Ibid. f'lEast. P.C. 233. " It. V. Sterennon, 19 St. Tr. 846. This case must be understood to be subject to the provisions of the next Article. ' This is the case of the Fenians executed at Manchester in 1807, for ihooting Brett, a police constable in charge of a police van containing a Fenian prisoner. See Appendix, Note IX. * n. V. Walters, 12 St. Tr. 113 ; and f^ce 1{. v. Lord Byron, 11 St. Tr. 1177. " li. V. Ciiddy, 1 C. & K. 210 ; It. v. Barronet, and It. v, Barthelemy, Dears. 51 and 60, arc recent cases of duelling.] 222 A DIGEST OF [(8.) * A and B quarrel, and upon the spot agree to fight with their fists. A, from the beginning of the figlit, uses a knife and kills B. A has not received such provocation from B as reduces his oflenco to man- slaughter. (9.) - A and B quarrel and agree to fight with their fists. In the course of the light A snatches up a knife, wliich happens to be near, and which he has not previously provided, and kills B. A has not received such prov- ocation from B as reduces his offence to manslaughter. (10.) ' A, at a tavern, throws a bottle at B's head and draws his svord. B throws a bottle at A's head. A kills B. A has not received such prov- ocation from B as reduces his ofience to manslaughter. (11.) * A and B quarrel and fight in a public-house. A leaves the public-house, . ays he will kill B, conceals a sword under his coat, returns to the public-house, tempts B to strike him with a stick, saying "Stand off, or I'll stab you," and without giving B time to retreat, does stab him mortally. A does not receive from B such provocation as reduces his offence to manslaughter. (12.) ^ A attacks B in such a manner as to endanger B's life. B drives off and pursues A. A in self-defence kills B. This is murder in A. " Article 281. when provocation does not extenuate homicide. '^ Provocation does not extenuate the guilt of homicide unless the person provoked is at the time vv^hen he does the act deprived of the power of self-control by the pro- vocation which he has received, and in deciding the question whether this was or was not the casf, regard must be had to the nature of the act by which the cfFender causes death, to the time which elapsed between the provocation and the act which caused death, to the offender's conduct during that interval, and to all other circumstances tending to shew the state of his mind. ' [K. V. ^nc/erson, 1 Russ. Cr. 701. '. «Ibid. » i?. V. ^/aioffrifif/r, Kel. 128-9 ; Foster, 295-8. * Mawn'* CVc, Foster, 132. i .. ■ 'Bacon's Maxim", 37, 38. I suppose B is trying to arrest A.] • S. D. Art. 225. See Appendix Note IX. ' [See the cases quoted in the Illustrations, and H. v. Lynch, 5 C. & P. 324. Draft Code, 8. 176,] li. V. McDowell. 25 U. C. Q. B. 108, THE CRIMINAL LAW. 223 Illustrations. [(1.) ' A and B violently quarrel, and throw bottles at each other at a tavern, A throwing the first bottle. The company interfering, they re- main quiet for an hour, B wishing to be reconciled. A refuses, and says he will have B's blood. When B and the rest of the company leave, A calls B back in terms of insult, and fights with him with swords; B ia killed. A commits murder, though the fight is on equal terms. (2.) ^ B strikes A with his fist. A, being the stronger man of the two, throws B down on the ground, and beats out his brains with a poker. A comm ts murder. (3.) '' A and B (juarrel and fight. B, getting the best of the fight, leaves A. A throws a coal-pick at B and injures hii", and then wounds him with a knife. B leaves the house, saying to A, " You have killed me." A says to a third person, " I will have my revenge." B returns to the house soon afterwards and A stabs him again and kills him. A has committed murder. (4.) * A is turned out of a house and kicked by B. A runs to his own home, between 200 and 300 yards off, returns with a knife, and meeting B, stabs him after walking quietly with him some yards. A then runs back and puts his knife in its usual place. The deliberation shown in fetching and replacing the knife are facts to be considered by the jury in deciding whether or not A committed the offence whilst deprived of self- control by passion. (5.) ^ Police-officers in charge of a police-van have in custody D, a person charged with felony under 11 Vict. c. 12. A, B, and C, and others assault the van in concert, rescue the prisoner, and shoot one of the policemen dead with a pistol. The warrant under which D was in custody was in- formal, but not to the knowledge of A, B, and C. A, B, and C, and the others are guilty of murder, and it would have made no difference if they had known of the irregularity of the warrant. " Article 282. . ' provocation to third person. ^ Provocation to a person by an actual assault or by a ' [R. V. Onchy, 2 Str. 766 ; 1 Russ. Cr. 699-700. = Per Parko, B. in ii. V. r/(oma«, 7 C. ife P. 817. " if. V. A'lrMaw, 8 G. & P. 115. ' ; * R. V. Hay ward, 6 C. & P. 157. '' This is the case of R. v. Allen and Others, the Fonians, who murdered Brett, the policeman. See Appendix Note IX.] « S. D. Art. 226. ' [1 Kuss. Cr. (5th ed.), T04-5. The passage referred ;to is taken from Hawkins. See Cari/'« Cane (p. 705), wliioh is this : ",A and B were fighting in a field in a quarrel. C, A's] 224 A DIGEST OF [mutual combat, or by a false imprisonment, is in some cases provocation to those who are with that person at the time, and to his friends who, in the case of a mutual combat, take part in the fight for his defence. But it is uncertain how far this principle extends. * Article 283. suicide — abetting suicide. ^ A person who kills himself in a manner which in the case of another person would amount to murder is guilty of murder, and every person who aids and abets any per- son in so killing himself is an accessory before the fact, or a principal in the second degree in such murder. ^ Article 284. manslaughter on oneself. * A person cannot commit manslaughter on himself. ■' Article 285. accessories before the fact in manslaughter. It seems that there may be accessories before the fact in manslaughter if the act or omission by which death is [kinsman, casually riding by and seeing them in fight and his kinsman one of them, rode in, drew his sword, thrust B through and killed him. Coke, C.J., and the rest of the Court agreed that this is clearly but manslaughter in him (i. e. C) and murder in the other for the one may have malice and the other not." I should have said C's offence was infinitely worse than A's, and I do not think this case would be followed in the present day.] » S. D. Art. 227. 2 [1 Hale, P. C. 411-419. See R. v. Fretwell, L. & C. 161; R. v. Riiuell, 1 Moody 356. Draft Code, s. 183.] If two persons enter into an agreement to commit suicide together, and the means employed to produce death prove fatal to one only, the survivor is guilty of murder ; R. v. Jesaop, 16 Cox, C. 0. 204. » S. D. Art. 228. * [Per Pollock, C.B., and Williams, J., in R. v. Burgesg, L. & C. 258, referring to Jervis on Coroners, App. p. 322, note 4.] S. D. Art. 229. THE CRIMINAL LAW. 225 [caused is not such an act or omission as, but for provoca- tion received by the offender, would have been murder. Illustration. ^ A advises B to give C a strong dose of medicine to malce him feel sick and uncomfortable. B does so and C dies. B is guilty of manslaughter^ and A is accessory before the fact to manslaughter. 2 Article 286. presumption that killing is murder. •'' Every person who kills another is presumed to have wilfully murdered him unless the circumstances are such as to raise a contrary presumption. The burden of proving circumstances of excuse, justi- fication, or extenuation is upon the person who is shewn to have killed another.] " Article 287. . punishment of murder. * Every one who commits murder is guilty of felony, and must on conviction thereof be sentenced to death. " Article 288. punishment of manslaughter. ^ Every one who commits manslaughter is guilty of * [PtrBramwell.B., in Ji. v. Gaylor,!). & B. 201. The text is stated doubtfully because the question has never been positively decided : Coke (3rd Inst. 55), Hale (2 P. C. 437) and East (1 P. C. 218) say that there can be no accessories before the fact in manslaughter ; but the doctrine on the subject is very differently understood in these days. See R. v. Taylor, L. R. 2 C. C. R. 148. That unlawful killing with a deliberate attempt to do slight bodily harmi which happens to cause death, is manslaughter, is a comparatively modern doctrine. By Coke's definition it would bo murder. Whatever it is called there may obviously be an accessory before the fact to such an act.] » S. D. Art. 230. 3 [1 Russ. Cr. 642; R. v. Greennere, 8 C. & P. 35.] * S. D. Art. 231. 6 R. S. C. c. 162, 8. 2 ; 0. l8i. s. ? ; 24 & 25 Vict. o. 100. s. 1. Draft Code, s. 178. * S. D. Art. 232. [3 Hist. Cr. Law, 78-9. Draft Code, s. 182.] ' R. S. C. 0. 162, 8. 5: 24 A 25 Vict. o. 100, 8. 6. Q 226 A DIGEST OF felony and liable to imprisonment for life or to a fine or to both. ' Article 289. ^ attempts to commit murder. ^ Every one is guilty of felony, and is liable to im- prisonment for life who does any of the following things with intent to commit murder ; that is to say — (a.) ' administers any poison or other destructive thing to any person, or causes any such poisonous thing to be so administered or taken, or attempts to administer it, or attempts to cause it to be so administered or taken ; (6.) ''by any means whatever wounds or causes any grievous bodily harm to any person ; (c.) " shoots at any person, or, by drawing a trigger or in any other manner, attempts to discharge at any person any kind of loaded arms ; ^ 1 S. D.Art.233. * [For the history of the provisions see 3 Hist. Cr. Law, ch. xxvii. pp. 108-120. Draft Code, s. 179.] » R. S. C. c. 162, 88. 8-12 ; 24 & 25 Viet. c. 100, ss. 11-15. * R. S. C. 0. 162, 8S. 8, 11 ; 24 & 25 Vict. c. 100, ss. 11, 14. » R. S. C. c. 162, s. 8 ; [24 & 25 Vict. c. 100, s. 11. In J{. v. Gray, D. & B. 303, it was held that to cause congestion of the lungs by exposing a child in a field was not causing " a bodily injury dangerous to life " within 7 Will. 4 & 1 Vict. c. 85, s. 2, but such a case would now fall under clause (A.), g. 15. See remarks of Cookburn, C.J., p. 306.] » R. S. C. c. 162, 8. 11 ; 24 & 25 Vict. c. 100, s. 14. [The words " any other manner " mean any other manner like drawing a trigger, e.g. applying a lighted match to a matchlooki or striking a percussion cap with a hammer ; see B. v. St. George, 9 C. & P. 483, and R, v. Leioia, 9 C. & P. 523. These coses have been doubted by the Court for Crown Cases Reserved ; see B. v. Brown, L. R. 10 Q, B. D. 381. In this case a man was tried for attempting to commit murder by drawing a pistol from his pocket for the purpose of committing murder with it, but his hand was seized- I held this to be an attempt to commit murder by means other than those specified in clauses {a.)-{g-) ; but, on the autho- rity of B. V. St. George, that it did not constitute an offence under clause (/t,), the Court held that clause ih.), s. 15, applied only to cases other than those specified in clauses (a.)- (ff'), 8, 14, but ejusdem generis as for instance trying to push a man off a cliff or under a railway train ; but that it did not apply to extend s. 14. I agreed in this view. The Court thought that B. v. St. George ought to be reconsidered, and inclined to the view that if I had held otherwise in B. v. Brown my ruling would have been upheld.] ' " Loaded arms " means arms loaded in the barrel with gunpowder or any other explo- sive substance, and ball, shot, slug, or other destructive material, or charged with com- pressed air and having ball, shot, slug or other destructive material in the barrel, although the attempt to discharge the same may fail ; R. S. 0. c. 162, s. 1 ; 24 S.D. Art.236(a). «R.S.C. 0.162, §.13; 24 & 25 Vict, c 100, s. 18. ' The intent may be inferred from the act ; E. v. Le Dante, 2 G. & 0. 401, * [To wound means to divide the surface of the body whether it be an internal or external surfaoe, e.g. the inside of the mouth ; R. v. Leonard Smith, 8 C. R. S. C. 0. 162, 8. 22 ; 24 & 25 Viot. o. 100, g. 29. » R. S. C. 0. 162, 8. 23 ; 21 & 26 Viot. o. 100, s. 30. » S. D. Art. 239 W. * R. S. C. 0. 162, ?. 24 ; 24 A 25 Vict. o. 100, s. 31. THE CRIMINAL LAW. 235 in, or afterwards comes into, his possession or occupation, to continue so set or placed, shall be deemed to have set or placed such gun, trap or engine, with sach intent as aforesaid. This Article does not extend to any gin or trap usually set or placed with the intent of destroying vermin. 'Article 302. intentionally endanoerino the safety of persons on railways. Every one is guilty of felony and liable to imprison- ment for life who unlawfully and maliciously, ^ (a.) with intent to injure or to endanger the safety of any person travelling or being upon any railway, (i.) puts or throws upon or across su<;h railway, any wood, stone, or other matter or thing ; or (ii.) takes up, removes or displaces any rail, railway switch, sleeper, or other matter or thing belonging to such railway, or injures or destroys any track, bridge or fence of such railway, or any portion thereof ; or (iii.) turns, moves or diverts any point or other ma- chinery belonging to such railway ; or (iv.) makes or shows, hides or removes any signal or light upon or near to such railway ; or (v.) does or causes to be done any other matter or thing with such intent ; or ^ {h ) throws, or causes to fall or strike at, against, into or upon any engine, tender, carriage or truck used upon any railway, any wood, stone or other matter or thing, with intent to injure or endanger the safety of any person being in or upon such engine, tender, carriage or truck, or in or upon any other engine, tender, carriage or truck > S. D. Art. 236 (g) (A). » R. S. C. c. 162, 8. 25 ; 24 & 25 Viot. c. 100, a, 32. « R. S. C. c. 162, B. 26 ; 2* & 25 Viot. c. 100, s. 33. 236 A DIGEST OF of any traiu, of which such first mentioned engine, tender, carriage or truck forms part. 'i-".^ICLE 303. NEGLIGENTLY ENDANGERING THE SAFETY OF PERSONS ON RAILWAYS. ^ Every one is guilty of a misdemeanor, and liable to imprisonment for any term less than two years, who, by any unlawful act, or by any wilful omission or neglect of duty, endangers or causes to be endangered the safety of any person conveyed or being in or upon a railway, or aids or assists therein. •■'Article 304. injuring persons by furious driving. * Every one is guilty of a misdemeanor, and liable to imprisonment for any term less than two years, who, having the charge of any carriage or vehicle, by wanton or furious driving, or racing or other wilful misconduct, or by wilful neglect, does or causes to be done any bodily harm to any person whomsoever. ■"'Article 305. preventing the saving of the life of any person shipwrecked. ^ Every one is guilty of felony, and liable to seven years' 1 S. D. Art. 240 (a). « R. S. C. c. 102. 8. 27; 2t & 25 Vict. c. 100, 8. 34. There must be a duty to do the thing omitted to be done. A promise given to do ii without anything more is not sufficient i Ex parte Brydgea, 18 L. C. J. 141. Every olBcer or servant of a railway commits a mis- demeanor who directs or knowingly permits any baggage, freight, merchandise or lumber car to be placed in rear of the passenger cars (R. S. C. o. ?8, s. 57 ; 51 Vict. (D.) c. 29, s. 291) ; or who is intoxicated while in charge of a locomotive engine, or acting as conductor of a car or train of cars (R. S. C. c. 38, s. 58 ; 51 Vict. (D.) o. 29. s. 292). As to the violation by railway officers of railway regulations, see Art. 153, note (2). 3 S. D. Art. 240 (b). * R. S. C. c. 162, 8. 28 ; 2t & 25 Vict. c. 100, s. 35. "S.D. Art. 236(1.) * B. S. C. c. 81, 8. 36 ; 24 & 26 Viet. c. 100, s. 17. THE CRIMINAL LAW. 237 imprisonment, who prevents or impedes, or endeavors to prevent or impede, [a.) any shipwrecked person ^ in his endeavor to save his life; or (6.) any person in his endeavor to save the life of any shipwrecked person. ^ Article 306. leaving holes in the ice and excavations unguarded. Every one is guilty of a misdemeanor, and liable on summary conviction to a fine or imprisonment (or both) ^ who ^ (a.) cuts or makes, or causes to be cut or made for the purpose of harvesting or obtaining ice for sale or use, any hole, opening, aperture or place, of sufficient size or area to endanger human life, through the ice on any navigable or other water open to or frequented by the public, and leaves such hole, opening, aperture or place, while it is in a state dangerous to human life, whether the same is frozen over or not, unguarded and uninclosed by a guard or fence of sufficient height and strength to prevent any person from accidentally riding, driving, walking, skating or falling therein ; or ^ {h.) being the owner, manager or superintendent of any abandoned or unused mine or quarry or property upon or in which any excavation in search of mines or quarries has been or is hereafter made of a sufficient area and depth to endanger human life, leaves the same un- guarded and uninclosed by a guard or fence of sufficient ' By B. 2 (h) " shipwrecked person " is defined to include any person belongring to or on board of any Britisli or t'oreign vessel wrecked, stranded, or in distress at any place in Canada. Thd words of the Act of the United Kingdom are : " Any person being on board *' of or having quitted any ship or vessel," etc. * I'ho words " or both " are not in s. ?9( olause(a). = R. S. 0. c. 1^2, 8. 29. * R. S. C. 0. 162, s. 80. 238 A DIGEST OF height and strength to prevent any person from accident- ally riding, driving, walking or falling therein ; or ^ (c.) omits within five days after conviction of any such offence to construct around or over such exposed opening or excavation a guard or fence of such height and strength. ^ Every one whose duty it is so to guard such hole, opening, aperture or place is guilty of manslaughter if any person loses his life by accidentally falling'' therein while the same is unguarded. ■* Article 30*7. neglecting when liable to provide food— causing bodily harm to apprentices and servants. ° Every one is guilty of a misdemeanor, and liable to three years' imprisonment, who, (a.) being legally liable, either as a (husband, parent, guardian, or committee,) master or mistress (nurse or otherwisr), to provide for any person as (wife, child, ward, lunatic or idiot), apprentice or serv'^ant (infant or other- wise), necessary food, clothing, or lodging, wilfully and without lawful excuse refuses or neglects to provide the same ; or (b.) unlawfully or maliciously does, or causes to be done, any bodily harm to any such apprentice or servant, so that the life of such apprentice or servant is endan- gered, or the health of such apprentice or servant has been, or is likely to be, permanently injured. > R. S. C. c. 162, g, 31. s R. S. C. c. 162, s. 32. 3 " Riding, driving, walking, skating or fa,lling." *S.D. Art. 239(d). f" R. S. C. 0. 162, s. 19 : 21 <& 25 Viot. o. 100, a. 26. The words in parentheses are not in the statute of the United Kingdom. On an indictment against a husband for wilfully neglecting to provide necessary food, etc., for his wife, it must be shewn that the wife was in want and that the husband had the ability to provide for her ; R. v. Narmith, 42 U. C. Q. B. 242. It is not necessary to show that the life of the wife is endangered or that her health has been or is likely to be permanently injured ; R. v. Scott, 4 Dor. Q. B. 50 ; 28 L. C. J. 264. See also R. r. Smith, 23 L. 0. J. 247 ; R. r. Maker, 7 L. N. 82. THE CRIMINAL LAW. 239 Article 308. negligently causing bodily injury to any person. ^ Every one is guilty of a misdemeanor, and liable to imprisonment for any term less than two years, who, by any unlawful act, or by doing negligently or omitting to do any act which it is his duty to do, causes grievous bodily injury to any other person. 3R.S. 0.0.162,8.33. 240 A DIGEST OF CHAPTER XXVII. ' ASSAULTS— KIDNAPPING— OBSTRUCTING OFFICERS AND OTHERS IN THE EXECUTION OF THEIR DUTY. Article 309. assault and battery and assault defined. [An ASSAULT is (a.) ^au attempt unlawfully to apply any, the least, actual ' force to the person of another directly or indi- rectly ; (b.) the act of using a gesture towards another giving him reasonable grounds to believe that the person using that gesture meant to apply such actual force to his person as aforesaid ; (c.) the act of depriving another of his liberty, in either case without the consent of the person as- saulted, or with such consent if it is obtained by fraud. A battery is an assault whereby any, the least, actual force is actually applied to the person of another, or to the dress worn by him, directly or indirectly. Provided that such acts as are reasonably necessary for the common intercourse of life, are not assaults or batter- ' 1 Draft Code, ss. 203-2C6. «S. D. Art. 241. ' [See Article 52 for a definition of an attempt. * 1 Russ. Or. (5th ed.) 956 ; 1 Hawk. P. C. 100. A most elaborate definition of " force " is given in the Indian Penal Code, s. 350, as the foundation for a definition of assault, 8. 361. The definition is almost more mathematical than legal. It begins thus : " A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other," &o., «fec. It is impossible not to ask why, if force is to be defined, motion should be left undefined. It is, I think, hardly too great a demand on the candour of a reader to suppose that he will see that a man who withdraws a chair on which a person is about to sit down, causing hira thereby to fall to the ground ; or who whips a horse on which he is sitting, and so makes him run away with his rider; or who breaks a hole in ice in front of a skater, and so causes him to fall into the water — " applies actual force to hi9 person indirectly."] B. v. Hanner, 17 U. C. Q. B. 555 ; Ex parte Dubuc, 2 L. N. 334. THE CRIMINAL LA W. 241 [ries if they aro done for the purpose of such intercourse only and with no greater Force than the occasion requires. No mere words can in any case amount to an assault. Illustrations. The following are cases of assault and battery : — (1.) ' A cut B's dress whilst B is wearing it, but without touching or intending to touch any part of B's person. (2.) ■•' A sets a dog atB, which bites B. (3.) ^ A man professing to act as a medical adviser fraudulently induces a girl to allow him to undress her, by falsely alleging tliat it is necessary for medical reasons to do so. (4.) * A touches B, a boy of eight, in a grossly indecent manner, B ac- quiescing in ignorance of the nature of the act. (5.) * A induces B to permit him to have connection with her, by pre- tending to be her husband. The following are cases of assault without battery :^ (6.) * A strikes at B with a stick without hitting him. (7.) ' A aims a pistol at B which A knows is not loaded, but which B believes to be loaded. In the following cases no assault or battery is committed :— (8.) A lays his hand on B, to attract his attention. (9.) A, falling down, catches hold of B to save himself. (10.) A crowd of people, going into a theatre, push and are pushed against each other.] (11.) * A and B in a hostile manner stand in front of C's horses and carriage and detain him. (12.) ' A, with intent to cause such collision, opens a railway switch whereby two trains comes into collision, occasioning severe injury to a person on one of the trains. ' [ff. V. 2?a!/, 1 Cox. 0. 0. 207. . ' 1 Rusa. Cr. 958, gives several oases of this sort. ' R. V. Eosinski, 1 Rubs. Or. 959 ; and see R. v. Caie, 1 Den. 580. * R. V. Lock, L. R. 2 C. C. R. 10, and see R. v. Barnett, L. R. 2 C. C. R. 81. R. V. WUliams, 8 C. . (Mail carriers.) R. S. C. 0. 38, s. (13. (Officers of government railways.) R. S. C. c. 54, 8. )37. (Dominion hind surveyors ) ' R. S. C. c. 67. », 19. (Officers enforcing The ChineHe Immioratim Act.) R. S. C. c. ()9, 88 36, 37, 38. (Officers enforcing T/ie Animal Coiitagiowi Discaaen Act.) R. S. C. 0. 81, 88. 6, 22. Persons acting under The Wrevkx and Salvage Act.) R. S. C. 0. 04, s. 4. (Persons making seizure under The fUhing by Fureien Veinela Act.) R. S. C. 0. 103, s. 39. (Cullers.) R. S. C. c. 104, 8. 46. (Inspectors of weights and measures.) It. v. Dunning, 14 0. R. 60. 51 Vict. (D.) 0. 29,8. 80. (Inspecting engineer of any railway.) 51 Viot. (D.) c. 31, 8. 6 (2). (Officers charged with duty of cariying the Submarine Tele- Krapb Cable Convention into effect.) 246 . A DIGEST OF , Aeticle 319. kidnapping. ' ^ Every one is guilty of felony, and liable to seven years' imprisonment, who, without lawful authority, forcibly seizes and confines or imprisons any other person within Canada, or kidnaps any other person with in- tent, :i'--'- "■'■■"'■■ (a.) to cause such other person to be secretly confined or imprisoned in Canada against his will ; or (6.) to cause such other person to be unlawfully sent or transported out of Canada against his will ; or (c.) to cause such other person to be sold or captured as a slave, or in any way held to service against his will. Upon the trial of any offence under this section, the non-resistance, of the person so kidnapped or unlawfully confined, thereto, shall not be a defence, unless it appears that it was not caused by threats, duress or force or exhi- bition of force. i Article 320. assaults committed within two miles of the place where any public meeting or poll is held. " Every one who is convicted of a battery, committed within the distance of two miles of the place appointed for the holding of any public meeting and during any part of the day whereon any such meeting has been appointed to be held, is liable to a penalty not exceeding one hun- dred dollars, or to imprisonment for a term not exceeding three months, or to both. 1 R. S. C. c. 162, 8. 48. The intent applies to the seizure and confinement as well as to the kidnapping ; Cornwall v. R., 33 U. C. Q. B. 106. " R. S. C. c. 152, s. 4. It will bo observed that the punishment is less than that to which the offender is liable on conviction on indictment for a common assault, and that the pro- vision is superfluous. THE CRIMINAL LAW, 247 ^ Every one wlio is convicted of a battery, committed during any day whereon any election, or any poll for any election, of a member to serve in the House of Com- mons of Canada, or under The Canada Temperance Act, is begun, holden or proceeded with, within the distance of two miles of the place where such election or such poll is begun, holden or proceeded with, is guilty of an ag- gravated assault. ^Article 321. common assaults. ^ Every one who commits a common assault is guilty of a misdemeanor, and liable, if convicted upon an indict- ment, to one year's imprisonment, and on summary con- viction, to a fine not exceeding tweuty dollars and costs, or to two months' imprisonment with or without hard labor. 1 R. S. C. c. 8, 8. 77, c. 106 s. 69. "S.D. Arts. 246, 248, 252. » K. S. C. c. 162, (.. 36 ; 24 & 25 Vict. c. 100, ss. 47, 42. 248 , A DIGEST OF CHAPTER XXVIIL 'RAPE-CARNALLY KNOWING CHILDREN— ABORTION. ' ' Article 322. definition of carnal knowledge. ^ Carnal knowledge means the penetration to any the slightest degree of the organ alleged to have been carnally known by the male organ of generation. " Article 323. definition of rape. . ' ^ Rape is the act of having carnal knowledge of a '[Draft Code, Part XX, 88. 207-n.] ' -S. D. Art. 253A. ^ [R. S. C. c. 174, s. 226. 24 & 25 Vict. o. 100, s. 63, and see li. v. Cox, 1 Moody 337, and J{. V. Allen, 9 C. ife P. 31, decided on the earlier enactment, 9 Geo. 4, c. 31, s. 111.] * S. D. Art. 254. '' [See the cases in the Illustrations, and see 1 Russ. Cr. 858, &o. A late decision R. v. F/attery (46 L. J. (M.C-) 130), has thrown much uncertainty over the law. The prisoner was convicted of rape for having procured connection with a girl by falsely pretending that the act was necessary for a surgical or medical purpose, " the prosecutrix making but feeble resistance, believing that the prisoner was treating her medically.'' Two of the judges laid stress upon the resistance aa negativing consent to sexual connection, though not to the act done or supposed to be done. The Court, however, almost, though not altoeether, overruled the principle said in Ji. v. Barrow (L. R. 1 C. C. R- 158) to be " estiiblished by a class of ciises" ( /;. v. Jacknon, li. &!{. i$7 ; It. v. Clarke, B ear. S9T ; R. V. Saunderg, 8 C. & P. 265 It. v. WillianiH, 8 C. & P. 280) " that where consent is obtained by fraud the act done does not amount to rape." Hardly any of these cases seem to have been cited in the argument, though K. v. Barrow was. In 7?. v. Flattery, as in R. v. R. /'/crc/ier, the Statute of Westminster 2nd, 13 Edw. 1, c. 34, was referred to as giving a " definition of rape." I do not see how the statute can be treated as defining rape at all The words are "purvou est quo si homme, ravise femme, espouse, damoiselle, ou autre femme desoremes, par la ou ele ne se est assentue, ne avaunt ne apres eit jugcment, ko., e ensement par la ou home ravist femme, &o.. a force tut scit ke cle se assente apres." In the Latin version the words " rapiat ubi neo ante neo post consenserit." This cannot be a definition of rape because it contains the word '* rape." If however it is taken as being a definition, it implies that there may be oases of rape in which the woman consents, forthe] THE CRIMINAL LAW. \ 249 [woman without her conscious permission, such per- mission not being extorted by force or fear of immediate bodily harm ; but if such permission is given the act ' does not ^ amount to rape, although such permission may have been obtained by fraud, and although the woman may not have been aware of the nature of the act. •^ A husband (it is said) cannot commit rape upon his wife by carnally knowing her himself, but he may do so if he aids another person to have carnal knowledge of her. ■'::■.'■■ ^ ■■'-'' "''.•' ' '/ '- * A boy under fourteen years of age is conclusively presumed to be incapable of committing rape. [punishment is confined to cases of rape where there is no consent befot,^ or after. The latter part of the enactment which spealts of consent after the fact appears inapplicable to rape in the modern sense of the word. When the crime is over how can a person con- sent to it ? Had it not been for Coke's comments (2nd Inst. 180, 433, 3rd Inst. 60), I should have thought that the words applied rather to abduction than to what wo mean by rape, especially as the statute contains provisions as to the ravishment ctwards, in which the word " rapuit " is used, but I cannot think that the legislature intended to lay down any definition at all. Their language implies that the crime was then well known, and so does Coke's comment. The Act was repealed by 9(teo. 4, c. 31,s. 1.] As to the necessity of resistance on the woman's part see Ji. v. Fich; lo U. C. C. P. 379. ^ [See Ji. V. Bee, Irish 0. C. R., reported in Law Times Jan. 24, 1884. - The effect of the Criminal Law Amendment Act (48 & 49 Vict, c 69, s- 4) appears to be that It. V. Flatteru is no longer law, though it whs recognized as having created doubts as to E. V. Barrow, &o., which doubts are declared to have been well foundedi but I think the point doubtful.] By 48 art of the clause for which Lord Caitlehaven's Case (3 St. Tr. 402) is an authority. *1 Hale, P. 0.630. See /i. v. Groombridne,7C. & P. 583. The presumption extends to cases of assault with intent to ravish. See H. v. Philips, 8 C. & P. 733. The occasional incorrectness of this presumption is shown by H. v. Rend,! Den. 377. The presump- tion is founded, I believe, on the notion that a boy under fourteen cannot be a father, and could not thus inflict what was regarded as the principal injury involved in 250 A DIGEST OF Illustrations. ■ [(1.) ' A has connection with B, a woman who at the time of the connec- tion is in a state of insensibility. A has ravished 13. (2.) - A has connection with B, an idiot, wlio by reason of her idiocy submits, but does not permit tlie act. A lias ravished B. (3.) ■^ A has connection with B, an idiot, who permits the act from mere sexual instinct, but without understanding its nature. A has not ravished B.] ^ ^ Aeticle 324. , '^ punishment for rape. ' Every one who commits rape is guilty of felony, and liable to suffer death as a felon, or to imprisonment for life, or for any term not less than seven years. " Article 325. \ carnally knowing children under ten. ^ Every one who unlawfully and carnally knows and abuses any girl under the age of ten years, is guilty of 1 Ui- V. Canipliii, 1 Den. C. C. 89. ^B. V. E. Fletcher, Bell.C. C. 63 ; referring to the definition given in Westm. 2, c. 34. ••• n. V. C. Fletcher, L. R. 1 C. C. R. 39. In Ji. v. B^irraitd. R. 2 C. C. R. 81), in which the facts are similar to those in the ciise of Jl. Fletcher, the judges said that there was no in- consistency between tlie cases of li. Fletcher and C. Fletcher.] K. v. Connolly, 20 U. C. Q. B. 317. < S. D. Art. 255. f' R. S. C. c. 102, g. 37 ; 24 & 25 Vict. c. 100, s. 48. As to assaults with intent to commit rape and indecent assaults on women, see Arts. 310, 311. « S. D. Art. 255. " R. S. C. c. 102, s. 39 ; 24 & 25 Vict. c. ICO, s. 50. See also 48 & 49 Vict. c. 69, s. 3. On an indictment for committing the offences defined in Articles 325 and 320, or of attempting to commit such offences, the fiict that the girl consented is immaterial; (1 Russ. Cr. 875, 876 ; li. V. ConntJli/, 26 U. C. Q. B. 317 : If. v. raquet,9Q,. L. R. 351 ; though it is different where the indictment charges an assault; for while the child cannot by law consent to have connection so as to make that connection no offence yet where the essence of the offence charged is an assault (and there can be no assault unless it be against consent) this attempt though a criminal offence is not an assault, and the indictment must be for an attempt to commit a felony if the child is under ten, and for an attempt to commit a misdemeanor if the cliild is between the ages of ten and twelve ; J{. v. Martin, 9 C. »fe P. 217. THE CRIMINAL LAW. 251 felony, and liable to imprisonment for life, or for any term not less than five years, ^ Article 326. carnally knowing children between ten and TWELVE. ^ Every one who unlawfully and carnally knows and abuses any girl above the age of ten years and under the age of twelve years is guilty of a misdemeanor, and liable to^seven years' imprisonment. ^Article 327. attempting to have carnal knowledge of a girl under twelve. * Every one who attempts to have carnal knowledge of any girl under twelve years of age is guilty of a misde- meanor, and liable to imprisonment for any term less than two years and to be whipped. •■^Article 328. abortion. ■ " Every one is guilty of felony, and liable to imprison- ment for life, {a.) who, being a woman with child, with intent to procure her own miscarriage, unlawfully administers, or permits to be administered, to herself any poison or other noxious thing, or unlawfully uses, or permits to be used on herself, any instrument or other means whatsoever with the like intent ; or 1 S. D. Art. 256. « K. S. C. c. 162, 8. 40 ; 24 & 25 Vlot. c. 100, s. 51. » S. D. Art. 245 (c.) * E. S. C. 0. 162, g. 41 ; 24 & 25 Viot. o. 100, 8. 52. "S.D. Art.286(j),W. « It. S. C. c. 162, 8. 47 ; 24 & 25 Vict. c. 100, s. 5S. 252 A DIGEST OF (b.) who, with intent to procure the miscarriage of any woman, whether she is or is not with child, unlawfully administers to her or causes ' to be taken by her any poison or other noxious '^ thing, or unlawfully uses any instru- ment or other means whatsoever with the like intent. •■'Aeticle 329. supplying instruments to procure abortion. * Every one is guilty of a misdemeanor, and liable to two years' imprisonment, who unlawfully supplies or procures any poison or other noxious thing, or any instru- ment or thing whatsoever, knowing that the same is in- tended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she is or is not with child, ['even if the intention so to use the same exists only in his own mind, and is not entertained by the woman whose miscarriage he intends to procure).] ' [A person who gives another a drug to be taken in the absence of the giver " causes it to be taken," and, it would seem, " administers " it, though absent when it is taken ; Ji, V. Wilson, D. & B. 127, and oases referred to in the argument; also Ji. v. Farroxo, D. & B. 164. - A thing not otherwise noxious may be noxious if administered in excess, but some things are so commonly noxious (arsenic, e.g.) that perhaps the administration even of a quantity too small to do harm might be held to constitute the oflfence punished by this section if there were an intent to procure a miscarriage. See R. v. Crump, L. R. 5 Q. B. D. 307; also R. v. Isaacs, L. & C. 220, and R. v. Hennah, 13 Cox, C. C. 547.] ^ S. D. Art. 239 (c). * R. S. C. c. 162, a. 48 ; 2* & 25 Vict. c. 100, s. 59. To supply a thing which is not noxious with the intent mentioned is not within the section ; R. v. Isaacs, L. k C. 220. A, with intent to procure abortion, supplied B, a pregnant woman, with two bottlesful of Sir James Clarke's Female Pills, with direction to take twenty-five at a dose, and that it would have that efiect. la that number of pills there was sufficient oil of savin, an article used to procure abortion, to be greatly irritating to a pregnant woman and per- haps to cause an ahnrtion. Held, that A supplied anoxious thing within the statute ; R. V. Stitt, 30 U. C. C. P. 30. « R. V. Hillman, L. & C. 343. THE CRIMINAL LAW. 253 CHAPTER XXIX. crimes affecting coniuoal and parental rights- bigamy— abduction. . ^ Article 330. ^ definition and punishment of bigamy. ^ Every one is guilty of the felony called bigamy and liable to seven years' imprisonment who, being married, marries any other person during the life of the former husband or wife, whether the second marriage takes place in Canada, or elsewhere. * [The expression " being married " means being legally married. The word "marries" means goes through a form of marriage which the '^ law of the place where such form is used recognizes as " binding, whether the parties are by that law competent to contract marriage or not, and although by their fraud the form employed may, apart from the ^ bigamy, have been insufficient to consti- tute a binding marriage.] Nothing in this Article extends to — (a.) ** any second marriage contracted elsewhere than in Canada by any other than a subject of Her Majesty > S. D. Art. 257. ^ [2 Hist. Or. Law, 430.] ^ R. S. C. 0. 161, 8. 4 ; [24 & 25 Vict. o. 100, s. 57, as explained by the authorities referred to in the Illustrations. See note to Article 34. * See Illustration (2). ^ Bun V. BuH, 29 L. J. (Probate) 133. ° See Illustration (3). ^ See Illustration (4). ^ The Act does extend to a subject of Her Majesty who has contracted a second marriage in Scotland during the lifetime of a wife previously married in Scotland ; R. v. Topping, Dear. 617. The same rale would, of course, apply to a bigamous marriage in any foreign country.] 264 A DIGEST OF rosidont in Canada and leaving the same with intent to commit the od'ence ; (b.) ' any person marrying a second time whose hus- band or wife has been continually absent from such per- son for the space of seven years thon last past, and who was not known by such person to be living within that time ; (c.) any person who, at the time of such second marriage, was divorced from the bond of the first marriage ; or (d.) any person whose former marriage has been declared void by the sentence of any court of competent jurisdic- tion. ^ A person who marries again during his wife's or her husband's lifetime, but in the honest belief on reasonable grounds that she or he is dead, is not guilty of bigamy. 1 [The burden of proving ciich knowledge is upon the prossecutor when (but not until, R. V. Jones, L. R. 11 Q. B. D. 118) the fact that the parties have been continually absent for seven years has been proved. {R. v. Ciirneneen, L. R. 1 C. C. K. 1).] See also 7i. v. Pierce, 13 0. 11. 226 ; /{. y. M'-Qiimnn, 2 L. C. R. 340 ; R. v. Fontaine. 15 L. C. J. 141 ; R. V. Z>(wr;r, 27 L. C. J. 201 ; R.v. Debny, 3 G. k 0. 540; R. v. ,S'mi7/(, 14 U. C. Q. B. 505. Clause (f») is within the legislative authority of the Parliament of Canada ; R. v. Brierly, 14 0. R. 525. - [A divorce h vinculo matrimonii pronounced by a foreign court between persons who have contracted marriage in England, and who continued to be domiciled in England, on grounds which would not justify such a divorce in England, is not a divorce within the meaning of this clause ; R. v. Lolley, R. & II. 237. The decision does not refer to domicil, but this qualification appears from later cases to be required. See /Tawj/ v. Fnrnie, L. R. 5 P. D. 153, and 6 P. D. 35 ; also in 8 App. Cas. 43, where R. v. Lolley is explained as above by Lord Selborne at p. 54, and Lord Blackburn at p. 59. Harvey v. Famie was the converse of R. v. Lolley. It recognized a Scotch divorce as dissolving a marriage between people domiciled in Scotland at the time of the divorce, though the marriage took place in England, the wife being domiciled at the time of the marriage in England. The oases on the effect of foreign judgments on marriage are collected in 2 Sm. L. C. 805-71, 8th Edition.] A decree of divorce obtained in a foreign court may be impeached by extrinsic evidence showing that such court had no such jurisdiction or that such decree was ob- tained by fraud ; R. v. Wright, 1 P. & B . 363. [A question as to the exact time at which a person can be said to be divorced may arise. In 1 Hale, P. C. 694, a cose is mentioned in which a person marrying after sentence of divorce, but pending an appeal, was held to be within a similar proviso in IJa. 1) o. 11. In i?t v. Hale, tried at the Leeds summer ossizes, 1875, a woman pleaded guilty to a oharge of bigamy before Lindley, J., she having married after the degree nisi was pro- nounced) but before it became absolute, which it afterwards did. The judge's attention, however, was not directed to the passage in Hale.] » R. V. ToUon, L. R. 23 Q. B. D. 168. See Article 34, note, p. 40. THE GRIMfNAL LAW. 255 Illvntrntions. [(1.) ' A marries B, a person within the proliibitod de^roes of affinity, and during IVs lifetirno marries C A lias not committed bipimy. (2.) '^ A marries 15, and durinjr IVa lifiitime, \sovh througli a form of niarriaj?o witli C, a iKjrson within tlio proliibitod degrees of aflinity. A has committed bi^ramy. (3.) 'A marries H in Ireland, and during Ws lifetime goes through a form of raarria,'o with C in Ireland which is invalid, because both A and C are Protestants, and the marriage* is performed by a lioman Catholic priest. A commits bigamy. (4.) 'A, married to C, marries B in (''s lifetime by banns, B, the (woman) being married, for purposes of concealment, under a false name. A has committed bigamy. (5.) * A, married to B, marries C in B's lifetime, in the colony of Victoria. In order to show^ that A committed bigauiy it must be proved that the form by which he was married was one recognized as a regular form of marriage by the law in force in Victoria. ^ Article 331. , i PRINCIPALS IN SECOND DEGREE IN BIGAMY. ^ Every one is a principal in the second degree in the crime of bigamy who, being unmarried, knowingly enters into a marriage which renders the other party thereto guilty of bigamy. ^ Article 332. solemnization of marriage without lawful authority. ^ Every one is guilty of a misdemeanor and liable to a iine or to two years' imprisonment or to both who, ' [R. V. Chadwick, 11 Q. B. 205. " R. V. Brawn, 1 C. & K. 144 ; R. v. Allen, L. R. 1 C. C. R. 367. ^ R. V. Allen, vbi. sup. pp. 373-5, dieapproving of R. v. Fanning,!! Jr. C. L. 289. *R. V. Penaony 5 C. &P 412. In R, v. Rea, the prisoner at the bigamous marriage (be- fore the registrar) gave a false Christian name, and was held to be rightly convicted. ^ BiiH V. Burt, 29 L. J. (Probate) 133.] »S.D. Art.25S. ' [R. V. Brawn & Wehh, 1 C. & K. 144.] 8 S.D. Arts. 259, 260. « R. S. C. 0. 161, B. 1. 256 A DIGEST OF (a.) without lawful authority, the proof of which shall lie on him, solemnizes or pretends to solemnize any marriage ; or (6) procures any person to solemnize any marriage, knowing that such person is not lawfully authorized to solemnize such marriage, or knowingly aids or abets such person in performing such ceremony. Article 333. Feigned Mareiages. ' Every one who procures a feigned or pretended mar- riage between himself and any woman, and every one who knowingly aids and assists in procuring such feigned or pretended marriage, is guilty of a misdemeanor and liable to two years' imprisonment. Article 334. solemnization of marriage contrary to law. ^ Every one is guilty of a misdemeanor and liable to a fine or to one year 's imprisonment who, being lawfully authorized, knowingly and wilfully solemnizes any marriage in violation of the laws of the Province in which the marriage is solemnized. ^Article 335. ABDUCTION with INTENT TO MARRY. * Every one is guilty of felony, and liable to fourteen years' imprisonment, who, with intent to marry or 1 R. S. C. 0. 161, 8. 2. The prosecution must be oommenoed within one year after the offenc i . oommitted. * R. b. C. c. 161, f. :). The prosecution must be oommenoed within two years after the offence is oommitted. •S.D. Art.261. < R. S. C. 0. 162, s. 42; 24 & 25 Vict. c. 100, s. 53. THE CRIMINAL LAW. 267 carnally know any woman, or with intent to cause any woman to be married or carnally known by any person, (a.) from motives of lucre takes away or detains against her will any such woman of any age who has any interest, whether legal or equitable, present or future, absolute, conditional or contingent, in any real or personal estate, or who is a presumptive heiress or co-heiress or presumptive next of kin, or one of the presumptive next of kin to any one having such interest ; or {b.) ^ fraudulently allures, takes away or detains any such woman, being under the age of twenty-one years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, with intent to marry or carnally know her ; or (c.) ^ by force takes away or detains against her will any woman of any age. ^ Every one convicted of any offence defined in clauses (fl.) or (6 ) is incapable of taking any estate or interest, legal or equitable, in any real or personal property of such woman, or in which she has any interest, or which comes to her as such heiress, co-heiress or next of kin ; and if any such marriage takes place, such property shall, upon such conviction, be settled in such man- ner as any court of competent jurisdiction, upon any information, at the instance of the Attorney G-eneral for the Province in which the property is situate, appoints. ' [The meaning of the words " possession " ajid " fraudulently '' was considerably dis- euised in K. v. Burrell, L. & C. 354 ; but as the court differed on the facts of the oasct no definite conclusion was arrived at.] It need net be shewn that the accused knew that the woman was an heiress or had such an interest ; li, v. Kaylor, 1 Dor. Q. B. 36 1. » R. S. C. 0. 162, s. 43 ; 24 & 25 Vict. c. 100, s. fil • Ji. V. Wak S. D. Art. 264. " [Friend's Ctue, R. & R. 20 ; R.\. Ryland, L. R. 1 C. C R. 99. It is necessary to vrove actual injury to the child's health ; R.y. Phillpot, Dear. 179, and R. t. Hogan, 2 Den. 277 ; and that the defendant actually has, not merely that he might get from the relieving officer, the means of providing for the child ; R. v. Chandler, Dear. 453.] See Art. 307. ' [It is doubtful whether this includes medical attendance as regards any one but a parent who is under a statutory obligation to provide it ; R.y. Dotonet, L. R. 1 Q. B. D. 25.] * S. D. Art. 266. R. S. C. 0. 162, B. 20 : 21 A question suggesting tliat illegitimate children were born and murdered in a nunnery. ^ " A adds to his other vices ingratitude " ; ^ " A 'vill not play the fool or the hypocrite" (meaning that he would ) ; * " A has the itch, and smells of brimstone " ; *An imputation that A fa clergyman) poisoned foxes in a hunting country and hung them by the neck, and was himself hung in effigy for so doing. ; * Article 343. publication defined. 'To publish a libel is to deliver it, read it, or comiim- nicate its purport in any other manner, or to exhibit it to the person libelled, or any other person, ^ provided that if the person making the publication shews that he did not know, and had no opportunity of knowing, the con- tents of the libel, or that the newspaper or other publica- tion of which it forms part is likely to contain libellous matter, his act is not deemed to amount to a publication. ' A libel published in the ordinary course of the busi- ness of any person whose trade it is to deal in articles of the kind to which the libel belongs, is deemed to be pub- lished, not only by the person who actually sells or exhi- > [if. V. Gathercole, 2 Lew. C. C. 255. - Cox V. Lee, L. K. 4 Ex. 284. 3 1 Hawk. P. C. 5J3. ♦ ViUarg V. Momlev ; Holt on libel. 216, 2 Wils, 403. ^ B. y. Cooper, 8 Q. B. 533. I think it might, unde eoial oircumstanceS) be a libel to 8ay of a person a thing apparently quite inoflfensive. Suppose, for instanoe, a man wrote of another ''his name is A," meaning that his real name was A, and that the name of B , by whioh he passed, was falsely assumed) would not this be a libel?] »S.D. Art. 270. ' [R. r. Burden, 4 B. & Aid. 95. A libel published to the person libelled is a misdemean- or, because it tends to a breach of the peace, but it is not actionable, as it cannot injure the reputation of the person libelled.] See also B. v. Adams, L. R. 22 Q. B. D. 66, where the conviction of the defendant for having published to a young woman of virtuous char- acter a defamatory libel by sending to her address a letter in which he proposed that she should for a sum of money surrender her chastity to him, was sustained. » lEmmens v. Poitle, L. R, 16 Q. B. D. 354.] B. v. Judd, 37 W. R. 143. ' [Cases in Folkard's Starkie, 427-8 ; and especially R. v. Almon, 5 Burr. 2686.] 266 A DIGEST OF [bits it, but also by his master if his master has given him general authority to sell or exhibit for his master's profit articles of that kind. , '■ ■:. : ; ^Provided that whenever, upon the trial of any person for the publication of a libel, evidence has been given which establishes a presumptive case of publication against the defendant by the act of any other person by his authority, the defendant may prove,] and if proved it shall be a good defence, [that such publication was made without his authority, consent, or knowledge, and that the said publication did not arise from want of due care or caution on his part. . ^ If the proprietor of a newspaper or other periodical work gives general authority to an editor to manage the paper, it is a question of fact whether the proprietor au- thorized the editor to publish the libel which is the sub- ject of the indictment or information. Authorization is not to be presumed from the mere fact that the general control of the paper was left to the editor, but may be inferred from circumstances shewing that the proprietor permitted the editor to publish libels, or was indifferent as to whether libels were published by him or not. Illustrations. (1.) ^ A delivers to B an open letter, of which A is the author, contain- ing matter defamatory of C. A has published a libel. (2.) ^ A posts to B a sealed letter, of which A is the author, and which contains a libel on C. It seems that the posting of the letter is in itself a publication {quaere). (3) ^ The postman delivers to B the letter mentioned in the last illus- tration. The postman has not published the letter, but A has. (4.) A bookseller's shopman sells a libellous book over the counter in 1 R. S. C. 0. 163, s. 5. [6 k 7 Viot. c. 96, s. 7. Probably the efifeot of such proof would be to excuse the master, though the Act does not say so. See R. v. Almon as to the rule before the statute.] The words ' ' and if proved it shall be a good defence " are not in the Act of the United Kingdom. « [R. V. Holbrook, L. R. 4 Q. B. D. 42, 3 All these Illustrations are founded on R. r. Bardett, 4 B. & Aid. 93. (1.) is assumed by all the judges ; (2.) is doubted by Bayley, J., p. 153 ; (3.) is given by Best, J., p. 126.] THE CRIMINAL LAW. 267 [the ordinary course of business ; both the shopman and the bookseller have published the libel. ^Article 344. , when a libel is malicious. ^ The publication of a libel is malicious in every case which does not fall within the provisions of some one or more of the six Articles next following. ^Article 345. , publication of the truth. * The publication of a libel is not a misdemeanor if the defamatory matter is true, and if the publisher can shew that it was for the public benefit that such matter should be published. Illustration. ^ A writes of B, " Many years ago B committed immoral acts-" The imputation is true. This is not a libel if the publisher can shew that it was for the public benefit that it should be published. > S. D. Art. 271. - [In Brnmage v. Prosser, 4 B. ife C. 2i7, which is a leading case on the subjeoti Bailey, J., says: "Malice . . . . in its legal sense means a wrongful act done intentionally and without just cause or excuse." From the nature of the case the publication of a libel must be an intentional act. The next six Articles sum up the different states of fact which have been held to constitute "just cause or excuse" for publishing libels. In Bromage v. Prosaer and many other cases, much is said of m&lice in law and malice in fact, ot privileged publications, etc-, etc. ; but a sufficiently simple and intelligible result has at last been reached by very circuitous roads. See Appendix. Note X.] 8 8. D. Art. 272. * [Effect of 6 & 7 Vict. c. 96, 8. 6.] R. S. C. o. 163, s. 4 ; but it must be pleaded that the defamatory matter is true and that it was for the public benefit that such matter should be published; B. v. Movlan, 19 U. C. Q. B. 521 ; R. y. Laurier, 11 K L. 184 ; i?. v. Hickaon, 3L.N.:39. ' IB. V. Neieman, 1 E. & B. 558 ; and see Dear. 85.] 268 A DIGEST OF ^Article 346. publication of matter honestly believed to be true. ^ [The publication of a libel is not a misdemeanor if the defamatory matter published is honestly believed to be true by the person publishing it, and if the relation be- tween the parties by and to whom the publication is made is such that the person publishing is under any legal, moral, or social duty to publish such matter to the person to whom the publication is made, or has a legiti- mate personal interest in so publishing it, provided that the publication does not exceed either in extent or in manner what is reasonably sufficient for the occasion,^ and provided that the person who publishes is not in fact actuated in so doing by any indirect motive. When the existence of the relation establishing the duty has been proved, the burden of proving that the statement was not honestly believed to be true, and that the defendant was in fact actuated by some indirect motive, (both or either), is upon the prosecutor. Illustrations. (1.) * A being asked the character of B, who had been in his service, by C, who is about to engage 6 as a servant, writes of B in a letter to C, the words " B is a drunkard and a thief." If A honestly and on reasonable grounds believes that B is a drunkard and a thief, though in fact he is neither, this is not a libel- If A published this letter in a newspaper it would be a libel. As soon as the circumstances under which the letter was written are 1 S. D. Art. 273. '^ [See Folkard's Starkie, ch. xii. 249-291. I have gone carefully through these forty-two pagea twice or more, and I cannot see that they contain anything beyond this principle and rather obvious illustrations of it expressed in a very oomplioated way. The loading case on the subject is Hnrrimn v. Biuh, 5 E. & U. 844-348. 8 Clark V. Molvneux, L. R. 8 Q. B. D. 87. * Many oases as to giving characters to servants are collected and abstracted in Folkard's edition of Starkie, pp. 250-7.] THE CRIMINAL LAW. 269 [proved or appear the burden of proving that A did not honestly and on reasonable grounds believe B to be a drunkard and a thief is upon B in a prosecution or action by B. (2.) ' A, tlie private secretary of a general, being directed by the general to give an inspecting oflicer information as to the discipline of a body of troops, writes a letter to the inspector, in which he says that B, who had formerly commanded the troops, attempted to excite a mutiny when he was removed from his command. This is not a libel, though false, if A honestly believed it to be true, and if it was relevant to the subject on which A was directed to report- (3.) * A writes a letter containing master defamatory of B to C, A's mother-in-law, who is about to marry B. If A in good faith believes the imputations to be true, this is not a libel although the imputations are false. (4.) * The mate of a ship writes a letter to A accusing the captain, B, of drunkenness and misconduct. A (who has nothing to do with the matter) forwards the letter to the owner of the«hip believing the accusation to be true and thinking himself morally bound to report it. The accusation was in fact false. It is uncertain whether A has or has not libelled B. (5.) A complains to the Privy Council of the conduct of a public officer whom the Privy Council has power to remove. If the statement is made with express malice it is libellous. * * Article 34*7. fair criticism. * The publication of a libel is not a misdemeanor if the defamatory matter consist of comments upon persons who submit themselves, or upon things submitted by their authors or owners, to public criticism, provided that such comments are fair. ^ A fair comment is a comment which is either true, or * [Beaiton v. Skene, 5 U. •& N. 838. This was an action for verbal slander, but the principle is the fame. = Todd V. HaiekiiM, 8 C. & P. 88. ^ Coxhead v. Riehardt, 2 C. B. B69. The judges in this case were equally divided, Tindal. C.J,, and Erie, J., thought the letter was not a libel ; Coltman, J., and Cresswell, J., thought it was. < Proctor V. Webster, L. R. 16 Q. B. D. 112.] ^ S. D. Art. 274. » [Folkard's Starkio, oh. xi. pp. 223-248. ' Hunter v. Sharpe, 4 F. S. D. Art. 275 A. * Davixon v. Duncan, 7 E. & B. 231. By 44 & 45 Viot. c. 60, s. 2, the law in England is changed so fnr as it relates to the publication in a newspaper of any such report which is now privileged, if the meeting is lawfully convened for a lawful purpose and open to the public, and if such report was fair and accurate and published without malice, and if the publication of the matter complained of is for the public benefit, and if the de- fendant does not refuse to insert in the newspaper in which the report appeared a reason- able letter or document of explanation or contradiction by or on behalf of the prosecutor. See also 45 Viot. (Ontario) o. 9 ; 50 Vict. (Man.) o. 22. »8. D. Art. 276. * Cutler V. DUon, 4 Co. 14 b. P This is stated most strongly and explicitly in Mnnnter v. Lamh, L. R. 11 Q. B. D. 588 ; Henderton v. Broomheadt 4 II. & N. 509, 676 ; see, too, Dawkinn v. Lonl Kokehy. L. R« 8 Q. B. 265, and authorities cited there. Compare Seaman v. Netherclift, L. K. 1 C. P. Div. 510, for an illustration of the same principle as regards slander] THE CRIMINAL LAW. 273 [(3.) ' A, a military witness before a military court of inquiry as to the conduct of B, mal,, L. R. 3 C. P.D. m>. ' Stevens v. Samjmm, L. R. 5 Ex. Div. 53. limllx V. Leader, L. R. 1 Ex. 296, 300. ] T 2*74 A DIGEST OF [debtor before the registrar of a Bankruptcy Court, The examination contains irrelevant statements defaming B, who is a stranger to the proceedings. This is not a libel on B. (2.) 'A having been convicted of publishing a blasphemous libel, B publishes the trial, the blasphemous matter being given in full. B publishes a blasphemous libel. (3.) ^ A publishes a report of proceedings for i>erjury against B, and omits certain parts of the cross-examination of the witnesses. This raises a question for the jury whether the effect of the omission is to make the report partial and inaccurate. (4.) 'A, in the last illustration, begins his report with an account of the proceedings out of which the charge of perjury against B arose, and observes, " Evidence was given by C and D which entirely negatived B's story." This statement is not witliin the Article. (5.) * A publishes in a newspaper an account of proceedings before a magistrate against B. The report contains a statement by the magis- trate's clerk that B's alleged conduct was excedingly improper under any circumstances. This observation is not within this Article. (6.) * A publishes a fair report in a newspaper of a proceeding against B for perjury at a police court, whicli proceeding ended in the dismissal of the charge against B. This publication is not a libel. (7.) " A publishes in a newspaper a fair report of statements of a defa- matory kind, made before a magistrate extra-judicially, with a view to asking his advice. This publication may be a libel, as there is no judicial proceeding.] ^Article 352. punishment for libel. ** Every one is liable to a fine not exceeding six hundred dollars or to imprisonment for any term less than two years, or to both, who (a.) publishes, or threatens to publish, any libel upon any other person ; or (b.) directly or indirectly threatens to print or publish, or proposes to abstain from, or offers to prevent the 1 [R. V. Carlile, 8 B. & Aid. 167. « Lewis 7. Levy, E. R. & E. 551. » Lewtt V. Levy, E. B. & E. 539. < DeUgal V. Bighh/, 3 Bing. N. 0. 960, 961, " Leioi» V. Lecvt E. B. k E. 5.37 ; see, on the other hand, Duncan v, ThwaUei, 3 B. & C. 556 . • McGregor v. Thicalten, 8 B. & C. 24.] ' S. D, Art, V!?:. « R, 8. C. 0. 163, B. 1 i 6 & 7 Viot. o, 96, s, 3. TEE CRIMINAL LAW. 2*75 printing or publishing of any matter or thing touching any other person, with intent (i.) to extort any money, or security for money, or any yaluable thing from such or any other person ; or (ii.) to induce any person to confer upon or procure for any person any appointment or office of profit or trust. ^ Every one is liable to a fine not exceeding four hun- dred dollars or to imprisonment for any term less than two years, or to both, who maliciously publishes any defamatory libel knowing it to be false, ^ or [if he does not know it to be false], to a fine not exceeding two hundred dollars or to one year's imprison- ment, or to both. 1 R. S. C. c. 163, 8. 2; 6 & 7 Vict. c. 96, s. 4. - R. S. C. c. 163, 8. 3 ; 6 & 7 Vict. o. 96, s. 5. [The words bracketed are not in the Act, but are required to complete the sense.] t2 2*76 A DIGEST OF *PART VI. OFFENCES AGAINST EIGHTS OP PEOPERTY AND EIGHTS AEISING OUT OF CONTEACTS AND OFFENCES CONNECTED WITH TEADE. CHAP. XXXIL-Peopbrty-Posses- sioN — Asportation — Bailment. CHAP. XXXIII.— Things capable OR NOT OP BEING STOLEN. CHAP. XXXIV.— Theft in Gene- RAL. CHAP. XXXV. — Embezzlement by Clerks and Servants. CHAP. XXXVI.— Robbery and Extortion by Threats. CHAP. XXXVII. — Burglary, House-breaking, etc. CHAP. XXXVIII.— Punishment op Thepts and Ofpbncbs resembl- ing Theft committed in respect OP Particular Things, in Par- T1V.JLAR Places, by Particular Persons — Receiving Goods un- lawfully obtained. CHAP. XXXIX.— Obtaining Pro- perty BY False Pretences and other Criminal Frauds, and Dbalings with Property. CHAP. XL.— Frauds by Agents, Trustees, and Officers of Public Companies — False Ac- counting. CHAP. XLL— Receiving. CHAP. XLI I. -Forgery in General. CHAP. XLI 1 1. — Punishment op Particular Forgeries — Offen- ces resembling forgery and acts preparatory to the com- mission OP forgery. CHAP. XLI v.— Forgery op Trade Marks — Fraudulent marking of Merchandize — Offences eespecting Patented Articles, Industrial Designs and the marking of Timber. CHAP. XLV.— Personation. CHAP. XLVI. — Offences relating to tub Coin. CHAP. XLVII. — Advertising Counterfeit Money. CHAP. XLVIIL-Maucious In- juries TO Property. CHAP. XLIX.— Cruelty to Ani- mals. CHAP. L. — Offences connected with Trade and Breaches of Contract. CHAP. LI. — Adulteration op Food. •8 HiBt. Cr. Law, oh. xxviii. 121-176.] THE CRIMINAL LAW. m ^CHAPTER XXXII. PROPERTY— POSSESSION— ASPORTATION— BAILMENT. ^ Article 353. offences against bights of property and rights arising out of contracts. [The violation of rights of property and rights arising from contracts is a crime in the cases specified in this part. Such violation may be : (i.) By taking away property from the owner without his consent {a.) by violence to his person or habitation ; {&.) without such violence, (ii.) By persuading the owner by fraud to transfer his rights of property. >' (iii.) By the misappropriation of property entrusted by the owner to the offender. (iv.) By acts calculated to defraud, whether they actually defraud or not ; that is to say — (a.) Forgery. (6.) Personation. (c.) Coining and uttering bad money, (v.) By wilful and malicious mischief done to property, (vi.) By breaches of certain kinds of contract and inter- ference in certain cases with freedom of trade. > [This and the following chapter have I fear a somewhat abstract appearance, but it is impossible to understand the provisions of the Larceny Act without a knowledge of the doctrines which it presupposes— that is to say, the doctrine as to the definition of theft, and as to things capable of being stolen . The definition of theft turns on the doctrine of possession (see Appendix Note XI.), and this is unintelligible except in relation to the doctrine of property.] "S.D.Art. 279. 2*78 A DIGEST OF ^ Article 354. property in movable things. - [A person who has a right as against the world at large to do with or to any movable thing anything which the law does not specifically forbid him to do with or to it, and the right to prevent all other persons from doing therewith or thereto anything whatever which they are not specifically authorized to do, either by law or by his consent, is said to be the general owner of that thing, aud that thing is said to be his property, although he may have limited the above-mentioned rights respect- ing it as regards particular persons by contract. •' Article 355. . possession. A movable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need. A movable thing is in the possession of .the husband of any woman, or the master of any servant, who has the custody of it for him, and from whom he can take it at pleasure. The word " servant " here includes any person acting as a servant for any particular purpose or occasion. The word " custody " means such a relation towards the thing as would constitute possession if the person having custody had it on his own account. If a servant receives anything for his master from a third person, not being a fellow-servant, he has the 'S.D. Art. 280. * [2 Austin, Jurisprudence, 876, 965.] « S. D. Art. 281. [See Appendix Note XL] THE CRIMINAL LAW. 279 [possession as distinguished from the custody of it, until he has put it into his master's possession by putting it into a place or thing belonging to his master, or by some other act of the same sort, whether the servant himself has or has not the custody of that place or thing. If a servant receives anything belonging to his master from a fellow-servant who has received it from their common master, such thing continues to be in the posses- sion of the master, unless the servant who delivered it delivered it with the intention to pass the property therein to the servant to whom it is delivered, having authority to do so from the master. If a servant receives anything belonging to his master from a fellow-servant who has received it on the master's account, and has done no act to put it into the master's possession, it is in the possession of the servant who so receives it, and not in his custody merely. ♦ Illustrations. (1.) ' A, the master of a house, gives a dinner party, the plate and other things on the tahle are in liis possassion, though from time to time they are in the custody of his guests or servants. (2.) '^ A assigns the goods in his house to trustees for the henefit of his creditors. Tlie trustees leave him undisturbed and do not in any way interfere with the goods. A and not the trustees is in the possession of the goods. (3.) ' A produces a receipt stamp, and gets B to write a receipt on it in A's presence as for money paid by A to B. The stamp is in A's not B's possession. (4.) * A buys a bureau from B at a sale with money in a secret drawer of the existence of which neither A nor B is aware. The money is not in B's possession (though the bureau which contains it is) because B cannot be presumed to intend to act as the owner of it when he discovers it (5.) ^ A is clerk to B, a banker, money is paid to A on B's account, A ' [Founded on 1 Halo. P. C 500. 2 JR. V. Pratt, Bear. 360. 3 J{. V. John. Smith, 2 Don. 449. * Cartwright v. Green, 8 Ves. 405 ; Merry v. Oreen, 7 M. & W. fiZ^. ' Bazeley'a Case, 2 Leach 835. This case led to the first Act ugainst embezzlement by clerks and servants. No opinion was publicly delivered in it, but the judges seem to have considered that the act was not felony. Several similar oases are quoted in the argu- ment.] 280 A DIGEST OF [keeps it for a short time, and then puts it into the till. The money is in A's possession till it is put into the till, when it passes into B's possession, though A may have the custody of it. (6.) ' B leaves a watch with its maker to he regulated- A writes to the maker to send the watch to B at a certain post-oHice. A then goes to the post-office, and pretending to be B, gets the watch. As soon as the watch reaches the post-ofhce addressed to B, it is in B's possession, aa the post- master, as regards the letter and watch, is the servant of the owner. (7.) ^ B being prevented by a crowd from getting near the pay-place at a railway station, hands a sovereign to A, who is close to it, to pay for her ticket, and give her the change. The sovereign is in B's possession, but in A's custody. (8.) '^ B sends his servant A with a cart of B's to fetch coals for B from C. A receives the coals from C, carries them in sacks on his back to the cart, puts them into the cart, and drives it back to B. The cart is throughout in B's possession, but in A's custody. The coals are in A's possession whilst he is carrying them on ins back to the cart, but as soon as they are deposited in the cart they are in the possession of B, though both coals and cart continue to be in the custody of A. (9.) * A, B's servant, obtains by false pretences B's money from C, another of B's servants. The money after such obtaining is still in B's possession. (10.) '" A, B's servant, obtains by false pretences from C, B's cashier, the property in coins which belonged to B till C gave them to A. The possession of the coins is in A. (11.) " A, B, and C are all servants to D. D's customers pay money to C, who pays it to A, who pays it to B. B, A, and C, each keep separate accounts of their receipts and payments, so as to be checks on each other. Money of D's paid by C to A is in A's possession, and not merely in his custody , Article 356. special owner. * Every person to whom the general owner of a mov- ^ [R. V. Kau, D. & B. 235. See Bramwell, B's, remarks on this case in li. v. Middleton, L. R. 2 C. C. R. 58. 2 Ji. V. G. Thompson, L. & C. 225. s R. V. Reed, Dear. 108, 257. * R. V. Cooke, L. R. 1 C. C. R. 295 ; and see R. v. Rohini, Dear. 418. 6 R. V. H. Thompson, L. & C. 233. * R. V. Masters, 1 Den. C. C. 332. Mr. Greaves disapproves of this decision, and thinks that in such a case the money would be in the master's possession as soon as the first ser- vant received it on his account. R. v. Murray 1 Moody 276, perhaps favors this view, but the whole doctrine of possession is so arbitrary and unreal that it is hard to say that one view is better or worse than another.] 'S. D. Art.282. * [R. V. Vincent, 2 Den. 461.] THE CRIMINAL LAW. 281 [able thing has given a right to the possession as against the general owner is said to be the special owner thereof, or to have a special property therein, and such special property is not divested if the special owner parts with the possession under a mistake. • ■ ^Article 35*7. , possessor special owner as against stranger. Every person who has obtained by any means the pos- session of any movable thing is deemed to be the special owner thereof, as against any person who cannot show a better title thereto. / ■ Illustrations. ; (1.) "^ A finds a bezoar-stone in the street and shows it to B, a jeweller, to ascertain its value. B keeps it. A has a right to the stone as against B. (2.) ''A steals B's watch. C picks A's [ocket of the watch. C steals from A. ''Article 358. taking and carrying away. A thing is said to be taken and carried away when every part of it is moved from that specific portion of space which it occupied before it was moved (although the whole of it may not be moved from the whole of the space which it occupied), and when it is severed from any person or thing to which it was attached in such a manner that the taker has, for however short a time, complete control of it. An animal is said to be taken and driven or led away when it is caused to move from the place where it was before. 1 S. D. Art. 283. ' lArmory v. Dtlamtrie, 1 Sm. L. C. 385. 3 ]^ounded on 1 Hale, P. C. 697.] *b D. Art. 281. 282 A DIGEST OF IlluMrations. [(1.) ' A removes a parcel from one end of a watrgon to another. This is a taking and carrying away. (2.) ^ A lifts a sword partly out of its scabbard. A has taken and carried away the sword. (3.) ■' A causes a horse to be led out of a stable for him to mount. A has led away the horse. (4.) * A, a postman, instead of delivering a letter fn due course, or bring- ing it back in his i)0uch, which would bo liis duty if he could not deliver it, puts it in his pocket intending to steal it. This is a taking and carrying away. (5.) * A snatches a diamond earring from a lady's ear, tearing it out of the ear; it drops from his hand into her hair, and is found there by her afterwards. A has taken and carried away the earring. (6.) * Goods are tied to a string, one end of which is fastened to the bottom of a counter. A takes and carries them as far as the string will permit. A has not carried away the goods. (7.) ' A has gas-pipes in his house running through a meter, such pipes being his property. In order to prevent the gas from passing through the meter he puts a connecting pipe between the pipe leading to, and the pipe leading from, the meter, and so diverts the giis from its proper course. This is a taking and carrying away of the gas. ^Article 359. ^ ' bailment defined. When one person delivers, or causes to be delivered, to another any movable thing in order that it may be kept for the person making the delivery, or that it may be used, gratuitously or otherwise, by the person to whom the delivery is made, or that it may be kept as pledge by the person to whom the delivery is made, or that it may be 1 [Coalct's Case, 1 Lea. 236. ' 2 II. V. Walsh, 2 Hubs. Cr. 126 (from MS. of Bayley, J.). An odd point would arise if the sword and scabbard wore merely twisted round in the place which they occupied before they were touched. I suppose this would not bo an asportation. 3 R. V. Pitman, 2 C. & P. 423. * It. V. PoyntoH, L. & C. 247. "* Lapier'a Caiie,! Lea. 320; R. v. Simpton, Dears. 421. In this case a watch and chain snatched out of one button-hole caught in another. « 2 East. P. C. 556. J R. V. White, Dear. 203.] » S. D. Art. 286. THE CRIMINAL LAW. 283 [carried, or that work may be done upon it by the person to whom delivery is made gratuitously or not, and when it is the intention of the parties that the specific thing so delivered, or the article into which it is to be made, shall be delivered either to the person making the delivery or to some other person appointed by him to receive it, the person making the delivery is said to bail the thing de- livered ; the act of delivery is called a bailment ; the per- son making the delivery is called the bailor; and the person to whom it is made is called the bailee. '] ^ [CopoHY. Bei-nnrd, 1 Sm. L. C. 201, for bailment in general. For tlic application of the doctrine to criminal law, R, v. Hdisall, L & C. 58. It sceina tliat a married woman may be a bailee ; Jl. v. Robson, L. & C. 93. Since the Married Women's Property Act (33 & 31 Vict. 0. 93) it would seem clear that in many oases she can.] See also 45 it 4(5 Vict. c. 75, B8. 12. 10. 284 A DIGEST OF CHAPTER XXXIII. , ^ THINGS CAPABLE OR NOT OF BEIN3 STOLEN. " Article 360. things capable of being stolen. [Things are or are not capable of being stolen accord- ing to the provisions contained in this chapter. ^ Article 361. MOVABLE THINGS— land— THINGS FIXED TO LAND. * All movable things are capable of being stolen whether they are naturally movable or vrhether they vrere, before being severed therefrom, a part of, or built upon, or growing out of, or fixed in a permanent manner to, the soil of the earth. The soil of the earth itself cannot be stolen by re- moving landmarks, building so as to make permanent encroachments, or other means of the same kind. Things growing out of, built upon, permanently attached to, or forming part of, the soil, cannot be stolen whilst they continue to be so attached to it or to form part of it, or by the act of severance, '' except in the cases pro- vided for in Articles 410, 411, 412, 413, 416, 418, 419 and 433. '^ Article 362. title-deeds and choses in action. ^ Documents which in any way relate to the title of ' [3 Hist. Cr. Law, ch. xxviii. pp. 121-176,] = S. D. Art. 280. a S. D. Art. 287. < [2 Uuss. Cr. 2()9-17. - — ^- — f' iSoe also Article 370, para. (3).] " .'^. D. Art. 2S8. .____ I [2 Ru88. Cr. 217^.] "' ' . • THE CRIMINAL LAW. 285 [real property, and documents which constitute evidence of any right of action against any person, are not capable of being stolen, unless they fall within the terms of Article 398 or 400 ; but documents of title to chattels and tokens which represent them are capable of being stolen. Illustrations. (1.) ^ An unstamped written agreement for building cottages under whioh work has been and is being carried on is not capable of being stolen. (2.) ^ A pawnbroker's ticket is capable of being stolen. , ^ Article 363. water — gas — electricity. * Running or standing water is not capable of being stolen '' unless (it seems) it If stored in pipes or reservoirs for the purpose of sale or use, in which case it is capable of being stolen, although money penalties are provided for an improper use of it. •^ Gas is capable of being stolen. '^ Electricity is capable of being stolen. ' [K. V. WattH, Dciir. 326. - R. V. Mon-ixoii, Bell, C. C. 1S8. It has been held that a railway ticket is capable of being stolen: li. v. Boultou. 1 Don. 50«. In H. v. KUIiam (L. R. 1 C C. U. 264) it is said that " the reoso. for this decision do not viry clearly appear." It is, indeed, very bard to reconcile the decision wilh the established principle as to "choses in action" for what is a railway ticket except evidence of a contract by the railway to carry the holder?] See Art. 406. •■•S. D. Art. 289. * * [" Water is a movable wandering th'ng, .and must of necessity continue common by the law of nature, so that I can only have a temporary transient usufruotuavy property therein ; " (Blaokstone, 1 Steph. Com. 173, 5th ed.). As to water in standpipes, see /Vreiw V. O'Brien, L. II. 11 Q. B. D. 21. '' Would a man who drew a pail of water out of a reservoir covering many acres be guilty of theft? Hardly, I should think. ~ " J{. V. Firth, L. R. 1 0. C. R. 172 ; li. v. White, Dear. 2 3. ' 45 & 46 Vict. c. 56, s. 23 and see S. D. Art. 327 (/).] It will be observed that this proposition rests upon a statute not in force in Canada, and it may be questioned if it would be maintained in the absence of a statute. 286 A DIGEST OF ^ Article 364. tame animals and wild animals in captivity. [(«.) - The following animals are capable of being stolen at common law : ' Tame animals, whether originally wild or not, birds, bees, and silkworms kept respectively for food, labor, or profit, their young and their produce ; Hawks kept for sport ; Wild animals in a state of captivity kept for food or profit, ' but not wild animals kept in a state of captivity for curiosity. (b.) The following animals are the subject of larceny by statute : * Dogs, birds, beasts, and other animals ordinarily kept in a state of confinement, or for any domestic purpose (or for any lawful purpose of profit or advantage). (c.) ' Animals of a base nature are not capable of being stolen either at common law or by statute unless they are ordinarily kept in a state of confinement, or for any domestic purpose, (or for any lawful purpose of profit or advantage) in which case they are the subjects of lar- ceny by statute. ''' An animal capable of being stolen, whatever may be its nature, does not cease to be capable of being stolen because it is permitted at certain times to wander abroad. ' S. D. Art. 290. 2 [2 Hubs. Cr. Zn-i (5th ed.). 3 2Rus8.Cr. 238(5thed.).] ■•R. S. C. c. 1G4, s. 9. 'M & 25 Vict. c. 06, 88. 18 and 21. The words in parentheaes are not in the English Act. See Artiolea 408, 409 and Article 381. "[Coke, 3rd Inst. 108-1) ; 2 Russ. Cr. 233-9. Ferrets, so fur as Iknowi are the only animals to which (r) has been applied in modern times. In li. v. Searing, R. &'R.SX, "It appeared in evidence that ferrets are valuable animiilS) and those in question were Bold by the prisoner for Os. The judges were of opinion (in 1818) that ferrets though tame and saleable could not be the subject of larceny." I know not whether a ferret would fall within (/;) or not. It is neoessnr}' to mark the distinction between animals which are the subject of larceny at common law and those which are the subject of larceny by statute, because it is recognized in Bovoral statutes. See Articles 408, 409.] THE CRIMINAL LAW. 287 'lUuHrations. [(1.) ^ The milk of a cow, tlie wool on a sheep's back, honey in a hive, are the subjects of larceny at common law. (2.) '■' Young partridges or pheasants reared under a domestic fowl are regarded as tame, and as such are the subjects of larceny at common law till they become wild. (3.) ' Deer in a paddock, rabbits in a hutch, are the subjects of larceny at common law. Bears or monkeys kept in dens are the subjects of larceny by statute. (4.) * Young partridges reared under a common hen do not cease, so long as they are practically under the dominion of their owner, to be the subjects of larceny at common law because they are allowed to wander abroad. (5.) ^ Pigeons in a dovecot are the subjects of larceny at common law although they are allowed to fly about. ''Article 365. wild animals living and dead. ^ Living wild animals in the enjoyment of their natural liberty, whether they have escaped from confinement or not, are not capable of being stolen although they may be game, and although it may be an offence to pursue or kill them ; '^ but the dead body of such an animal is capable of being stolen, and it becomes the property of the person on whose ground the animal dies.^ 1 [2 Russ. Cr. 233-4 (5lh od.). - R. V. iihickh; L. R. 1 C. C. R. 158 ; U, v. Corn, 10 Cox. C. C. 23. -' 2 Russ. Cr. 233-1, 2;« (5th cd.). * E. V. Shicldc, L. R. 1 C. C, R. IM. ' Ji. V. CheafoTt 2 Den. 361. It has not, however, been decided that pigeons can be stolen whilst actuaUy flying about apparently at liberty. I suppose the question would turn on the knowledge of the offender that the pigoous wore tame.] " S. D. Art. 21)1. ■ f2 Russ. Cr. 236 (5th ed.). " Oysters iire the subject of larceny by statute ; see Art. 410 ; but they can hardly b© called "living wild animals." » Bladtt V. Higgt, 11 II. L. C. 621 ; 34 L. J. (C.P.) 286. But see R. v. Touml«v, L. R. 1 C. C. R. 316, and Art. 370, third paragraph.] 288 A DIGEST OF Article 366. dead! bodies. ^ [The dead body of a human being is not capable of being stolen. ^Article 36*7. THINGS abandoned. ^ Things of which the ownership has been abandoned are not capable of being stolen. Illustrations. (1.) '' To convert treasure trove before office found is not theft. (2.) * To convert wreck of the sea is not theft (if the owner is unknown). (3.) ' To convert goods absohitely lost to the owner, and as to which there is no reasonable ground for believing that the owner can be found, is not theft. "^Article 368. things of no value, "Things of no value to any one are not capable of being stolen, but things valuable to no one but the owner are capable of being stolen. Illustration. " The paper and stamps of the notes of a firm of country bankers which have been paid by tlie London correspondent and which are capable of being re-issued by the country bankers may be stolen, because they are valuable to the country bankers (as saving the expense of printing new notes), though to no one else. » S. D. Art. 292. ^ [li. V. Raynes, 2 East, P. C. 652. Can skeletons and anatomical preparations of parts of dead bodies, or whicli formerly formed parts of bodies whea living, be stolen? — teeth, for instance, intended to be used as false teeth.] • 3 8. D. Art. 293. • ^ • ■ n2 East, P. C. 606-7. ■ ^ 3 Inst, 1()8. It is however a misdemeanor. See Art. 476. * 1 Hawk. P. C. 149, s. 38. This must be understood of wreck of the sea unclaimed, and not of wreck forming part of or belonging to a vessel in distress, as to stealing which see Article 427. Penalties for various oifenoos as to wreck are contained in 17 Sc 18 Vict. c. 104, s. 477-9 (the Merchant Shipping Act, 1851)]. See Articles 444, 446, and &"S. But see R, V. Martin, 3 G. ife 0. 124, as to larceny of wrecked goods under R. S. C. o. 164, e. 85, Article 396. ' The law aa to finding property is more fully stated in Article 370.] « 8. D. Art. 294. » Wlarke'i (7a»e,2 Lea. iaS6.] THE CRIMINAL LAW. 289 CHAPTER XXXIY. • theft in general. ' Article 369. definition of theft. ^ [Theft is the act of dealing, from, any motive what- ever, unlawfully and without claim of right with any- thing capable of being stolen, in any of the ways in which theft can be committed, with the intention of permanently converting that thing to the use of any per- son other than the general or special owner thereof. Pro- vided that the offences defined in Article 44*7 do not amount to theft. The ways in which theft can be committed are specified in Articles 370 to 374, both inclusive. In those Articles the word " convert " means such a conversion as is here- inbefore specified. A claim of right may be founded on a mistake of law. IlhiHrations. (1.) * A takes B's horse from his stable and backs him down a coal-pit a mile oft", in order to prevent the horse from being identified in the trial of C for stealing it. A steals B's horse. (2.) * A, a post-ollice clerk, drops two letters down a water-closet in order that a mistake which he had made in sorting them might, not be discovered. A steals the letters. (3.) ^ A, a servant, gets B's letters from the post-office, and destroys one of them written to B by C, A's mistress, making inquiries of B as to A's character, delivering the rest. A steals the letter. • [3 Hist. Cr. Law, oh. xxviii, p. 121-17tj.] ' S. D. Art. 295. .__ ■Ui.v.Hnllowav, mm. 3,70, 8 R. V. Cabbage, R. & R. 292 ; 2 Russ. Cr. 205. * Wvnn'n Cane, 1 Den. 'm. « R. V. Jonc*, 1 Don. 188.] 290 A DIGEST OF [(4.) ^ A. puddler, throws an iron axle into his furnace in order to in- crease the ap{)arent amount of iron puddled therein, on which A's wages depend. The axlo, worth 5s , is destroyed, though the iron of which it is composed, and which is mr jh less valuable, remains for the owner. A has stolen the axle. (5.) ^ A, witliout his master's leave, takes his master's corn to feed his master's horses.] This is theft. [(6.) ■' A gleans corn, not having, but believing himself to have, a legal right to do so. This is not theft. (7.) ' B, a game-keeper, takes snares set by A, a poacher, and a dead pheasant caught therein. A, honestly believing that the snares and pheasant were his property, and that he had a legal riirht to them, forces B by threats to return them. This is not robbery, and if no violence was used would not be theft. (8.) ■' A, believing that B owes him £11, and seeing B receive £7, knocks down B and tries to get the £7 out of his pocket, say ng " Pay me the eleven sovereigns you owe me." This is not robbery, and. if no violence were used would not be theft. (9.) " The ore in a mine belongs to adventurers, and is to be excavated by tributers. *" e set of tribnters are to be paid a larger sum in the pound than the other set for the ore excavated by them. The ore ex- cavated by each set is placed in a heap by itself A, one of the tributers, moves a quantity of ore from the heap to be paid for at the lower to the heap to be paid for at the higher rate. A has not stolen the ore. (10.) ' Workmen in the glove trade are paid according to the number of gloves finished by them. A (a workman) takes gloves from his master's warehouse and puts them in the place where the newly-finished gloves are put to be counted, so as to increase the apparent number of newly-finished gloves, and with intent fraudulently to obtain payment for the gloves so removed from the warehouse. This is not theft. (11.) ** B uses many bags in his trade, and is supplied with them by C. A, B's servant, takes old bags supplied by C to B from B's house, and puts them in a place outside B's house, where new bags were habitually put by C. C, by concert with A, claims payment for the bags from B as for bags newly supplied. A is guilty of theft, and C is an accessory before the fact. : ' [R. V. Ri'chardu, 2 Russ. Cr. 250-7. This case is not altogether easy to reconcile with li. V. WM ; see Illustration (9). ■ It. r. Morfit, R. & R. .to;.] This is not theft in Ensrland since the passing of 26 (13.) '^ A rips lead off a church, to the roof of which it is fixed, and car-' ries it away. This is not theft at common law though it is by statute. 1 14.) - A cuts down timber or growing crops and carries them away immediately. This is not theft at common law, though it is by statute. (15.) ^ A, a poacher, kills a number of rabbits, hides them in a ditch on the ground of the owner of the soil on which they were killed, and returns several hours afterwards and carries them away, having all along intended to do so at hi ■ convenionce. Tliis is not theft.] (10.) * Against the wall of a passage leading from the street to certain assembly rooms, the lessor of the rooms places an " automatic box " so constructed that upon a penny piece being dropped into a slit of the box and a knob being pushed according to directions inscribed on the box, a cigarette is ejected. A drops into the slit a brass disc instead of a penny, and pushing the knob thereby obtains a cigarette. This is theft. •"'Article Bll. THEFT BY A SERVANT. — EMBEZZLEMENT. [Theft may be committed by converting, w^ithout th.e consent of the owner, anything of w^hich the offender has received the custody as the servant of the owner, or in order that the thing may be used by ihe offender for some special temporary purpose in the presence or under the immediate control of the owner or his servant. " "When a clerk, or servant, or person employed in the capacity of a clerk or servant, converts anything received by him from another person for his master or employer, he is deemed to have stolen it, but his offence is com- monly called embezzlement, and is distinguished from • See cases collected in 2 Hubs. Cr. 99-104. Some distinctions arise upon this which I do not notice, because this most odious crime is now dealt with specially by statute. See Article 388. - See authorities collected 2 Russ. Cr. (5th ed.) 209-10.] » B. V. Townkv, L. R. 1 C. C. R. 315.] * R. V. HaiuU, 16 Cox C. C. 188. ^ S. D. Art. 297. " [See Chapter xxxv.] 294 A DIGEST OF [theft for the purposes and in the manner mentioned in Chapter XXXV. Illustrations. (1.) ' A carter converts to his own use a cart which he is driving for his master. He commits theft. (2.) '^ A is employed by B to take pigs to C to be looked at, and to bring them back to B, whether C wishes to buy them or not. A sells the pigs to some one else, and keeps the money. This is theft. (3.) '' A sheriff's officer, in possession of goods under a writ of fi. fa., sells part of them. This is theft, as such a person is in the position of a servant. (4.) * A guest at a tavern carries off a piece of plate set before him to drink from. This is theft, because A had only a permission to use the plate for a special limited purpose. ^Article 3*72. theft by a false pretence. Theft may be committed by fraudulently obtaining from the owner a transfer of the possession of a thing, the owner intending to reserve to himself his property therein, and the offender intending, at the time when the possession is obtained, to convert the thing without the owner's consent to such conversion." Illustrations. (1.) ' A fraudulently pers:-''des B to allow A to take two silver ewers to shew to A's master, to choose one if he pleased. A sells the ewers and keeps the money. This in theft. (2.) ** A, by pretending to be B, fraudulently obtains B's goods from C, a carrier, to whom they were entrusted by B. This is theft, as the carrier transferred the possession only. 1 [Robinson's Case, 2 East, P. C. 565. "- Ji.y.Harvev, 9 C.& P. S53. ■ ' 3 Ea»te», Dear. 640. 6 Mcrrv V. Green, 7 M. & W. 623. There was a question in this case whether the bureau] THE dtlMINAL LAW. 29Y ^ Article 3*74. theft by bailees. ^ [Theft may be committed by the conversion by a bailee of the thing bailed, but this does not extend to any offence punishable on summary conviction. •'' This Article applies to bailments to infants incapable of entering' into a contract of bailment by reason of in- fancy (and it is submitted to bailments upon a void, and perhaps upon an illegal, consideration.) * Article 375. by and from whom theft :\iay be committed. Theft may be committed by a general owner to the pre- judice of a special owner upon a chattel in which both general and special ownership exist. '' Theft may be committcdby amember ofa *' co-partner- [was nof "iold with its contciitc. Ciirtwvioht v. Green, S Ve?. 405, is almost precisely similar. I am unablo to distinguish these cases from those on which Illustration (3) is founded. It is remarkable that in the judgments, and apparently in the argument (which is not reported), in li. v. Middleton, no notice is taken of any of these cases, nor are the cases about the bureaus referred to in R. v. Dmiei, which was decided, without argument, solely on the authority of li. v. Mucklow, Carttenght v. Green is not referred to in E. V. Mucklow, which was decided before Merry v. Green. Merry v. Green does not refer to R. V. Mucklow. The result is that the cases appear to contradict each other. This is also the view of Mr. Justice Cave in his judgment in if. V. AsAioeZi.] IS. D. Art 300. - R. S. C. c. 164, s. 4 ; [24 & 25 Viot. o. 96, s. 3. For a recent instance of this offence, see R V. O.venham, 40 L. J. (M. C.) 12-5. For a case in which it was doubtful whether or not there was evidence of a bailment, sec R. v. Ve Bankn, L. R. 13 Q. B. D. 29. See also R. V. Aahwell ;] R. v. Wynn, 16 Cox C. C. 231 ; R. v. Tweedy, 23 U. C. Q. B. 120 ; R. v. ^Stewart, 43 U. C. Q. B. 574 ; R. v. Lebceuf, 9 L. C. J. 215 ; Gould v. Cownn, 17 L. C. R. 46. A depos- ited money with Bi "en attendant le paiemont qu'il pourrait fairo d'uno mdme sommo &, " C." B did not pay C, but appropriated the money to his own use. Held, that ho did not oo"'"iit theft, not being bound to pay the same pieces of money) but a similar sum to C ; R.Y. Berthinume, 3 M. L. R. 143. 3 [R. V. MncDcnald, L. R. 15 Q. B. 1). 31.'?.] *S. D. Art.301. 5 R. S. C. c. 164, s. 58. 31 & 32 Viot. c. 118. g. 1, " [A co-partnership means an association for profit. A Christian Young Men's Society is not a co-partnership, though its members may be joint beneficial owners ; R, v. Robson, 298 A DIGEST OF [ship, or by one of two or more beneficial owners of any money, goods, effects, bills, notes, securities, or other pro- perty, to the prejudice of the other co-partners or bene- ficial owners. ' Theft may be committed by a member of a corporation to the prejudice of that corporation upon a thing which is the property of the corporation. ^ A married woman cannot commit theft upon things belonging to her husband. If any other person assists a married woman in dealing with things belonging to her husband in a manner which would amount to theft in the case of other persons, •'such dealing is not theft ' unless the person so assisting commits or intends to commit adultery with the woman ^ in which case he, but not she, commits theft.'* But this exception does not apply to the case of an adulterer or person intending to commit adultery, who assists a married woman to carry away her own wearing apparel only from her husband. ' It is doubtful whether the mere presence and consent of a married woman on an occasion when some person deals with her husband's goods in a way which would L. li. 10 Q. B. D. HO.] In li. v. Liiv;nhnich\ IS L. C. J. 212, Ramsay, J., expressed tlie opinion that ;iii indictuieiit for larceny or cmbez/.lemeat would not lie against a partner under 32 & 33 Vict. (D.) c. 21, s. 38 (R. S. C. c. KM, s. 58). The opinion however does not appear to be well founded. See Tasch. Can. Oiin. Acts 405, and cases there cited. li. v. Smith, 11 Cox, C. (\ 511 ; R. v. Ii,ilU, 12 Cox, C. (\ 9(5 ; R. v. Rmirworth, 12 Cox. C. C. 132 ; R. V. Rmlnr, 13 Cox, C. C. 17. ' [Roscoe's Criui. Ev. 8ih ed. 052. This is Mr. Roscoe's inference from 1 Hale, P. C. 513, and appears to be correct. - 1 Hale, P. C. 514.] See 45 k 46 Vict. c. 75, s. 12. ' U/ariwm'H Cam; 2 East. P. C. 55?. * R. V. Avmi, BM. m. '' R. V. 'Jol/rre, 1 Mood. 243 ; R. v. Tht.mvi'M, 1 Don. 549 ; R. v. Tolhn, Car. k Mar. 112 ; 7?. V. Frnilirrstone.Dcnv. 3(i9 ; R. v. J. Mxtlcru, L. A-C. 611. A note to this case, 516-19, collects and reviews all the authorities on the subject. These cases wore ail decided be- fore the iMarried Women's Property Act, 45 & 40 Viet. c. 75, ss. 12. 10. •^ R. V. Fitrh, 1). ct IJ. 187. ' R. V. Avery, Bell, C. C. 153. I submit that the wife's presence and consent in such a case would be no excuse. See the history of the growth of the doctrine in note to R. v. Mutturg,] THE CRIMINA.L LAW. 299 [otherwise amount to theft excuses such person if he acts as a principal in the matter, and not as her assistant. Illusiralions. (1.) ' A bails goods to B for exportation, upon which A would become entitled to an exeiaption from a duty on the goods of 2s. 6d. a pound. B gives a bond to the Crown for exportation, and sends the goods in his barge to a ohip to be exported. A, to get the goods duty free, takes them from B's barge. A has stolen the goods from B, and it seems it would have been larceny if no bond had been given by B. (2.) '^ A gives his servant goods to carry to a certain place. A then dis- guises himself and robs his servant in order to charge the hundred with the robbery. This is robbery. ■' Article 3*76. ^FINDINa GOODS. A finder of lost goods who converts them commits theft if at the time when he takes possession of them he intends o convert them, knowing who the owner is, or having reasonable grounds to believe that he can be found ; Such a conversion is not theft, (a.) if at the time when the finder takes possession of the goods he has not such knowledge or grounds of be- lief as aforesaid, although he acquires them after taking possession of the goods, and before resolving to convert them ; or (6.) if he does not intend to convert the goods at the time when he takes possession of them, whether he has ' [R. V. WilkinHon, 2 Russ. Cr. 243. ■ Foster, VSi-i. i have not met with any caso in which a man has boon convicted of thoft for stealing a pled(?o (his own property) from a pawnbroker; but no doubt such an act would be tiicft. Hot'oro 31 k 32 Vict. o. IKi, s. -', a case occurred in whioli a part owner WIS convicted of stealing money from anotlier part ownori in whoso special custody it was, and who was solely responsible for its safety, the money being the property of a co-operative store ; It. v. Wilittir, L. ifc C. 77. The same point was decided, as to the property of a friendly society in R. v. Buroeu, L. & C. 299.J ■'S. I). Art. 302. --•-' * [3 Hist. Cr. Law, 170.] 300 A DIGEST OF [snch knowledge or grounds of belief or not at any time. If the circumstances are such as to lead the finder reasonably to believe that the owner intended to abandon his property in the goods, the dnder is not guilty of theft in converting them Ilhistrations. (1.) ' A finds a bank note, accidently dropped on the floor of his shop. He picks it up, intending to keep it for himself, whoever the owner might be, behoving at the time that the owner could bo found. This is theft. (2.) - A, a carpenter, to whom a bureau was entrusted to mend, finds money in it, the existence of which was obviously unknown to the owner of the bureau. A appropriates the money. This is theft, as A knew to whom the bureau belonged. (3.) ■' A finds iron in the bottom of a canal, from which the water had been let otT, and appropriates it. This is theft, as the fact that the iron was in the canal raised a presumption that it had fallen from a canal boa>, and that therefore the canal company had a special property in it- (4.) ^ A finds a sovereign in the road, and picks it up, intending io keep it, whoever the owner might be, but not knowing who he was, and having no reason to believe he could be found. This is not theft. (5.) ■' A finds a bank note in the road, with no mark upon it, and no circumstance to indicate who was the owner, or that ho might be found. Next day he hears who tho ow!ior is, and after that changes the note and keeps the money. This is not theft. (6.) " A finds a bank note in the road with the owner's name upon it, and takes it, intending at the time to return it to the owner, but after- wards changes his mind and keeps it for himself. This is not theft. (7.) ' A finds an apple, which appet^rs to have been thrown away in ' [R. V. ^foore, L. S' C. 1. « Cartwrinht v. (Jrem, 8 Ves. 405 ; .sec, too, Mn-rv v Gri-fn, 7 M. & W. 023. ' H. V. Roiri', Bell, 0. C. 93. This case wiis dooided on the (luostion of the possession of the omul compnny, hut it illitstriitcs the principle us to finding also. * 11. V. (Hiiih:, L. K. 1 C. C. K. 139. * R. V. Thurlxjin, 1 Don. 387. " PntU'ii'ii Cane, '2 Uen. 35;!. The illustration does not represent the actual fnots in I'rcslon'n Cdv^, but a stjito of facts which the Court said might have exL^ted and upon which tho jury might have convicted him under tho terms in which the very able judgo who tried the case (tho late M. D. Hill, Hecordor of Birmingham) dirootcd them. ' Per Rolfu, B., in A', v. I'vturn, 1 C. k K. 245; and see tho summinR up of Cookhurni C. J., in R. V. Glude, L. H. 1 C. 0. R. UO-l. In some of the oases on this subject a distinc- tion is taken between property absolutely lost, and property only mislaid ; sec R. v. Witt, Dear. 402. It would appeun however, that the only roul dilTcrence is that in tho latter] THE CRIMINAL LAW. 301 [a road, and eats it. If a reasonably believed that the apple had been abandoned by its owner, this is not theft. ^ Article 3*7*7. conversion after a taking amounting to trespass. If a person takes into his custody any chattel belong- ing to any other person in a way which constitutes an actionable wrong to that person and afterwards converts it, he commits theft, although he may not have intended to convert it when he took it into his custody. Illustrations. (1.) - A, having a flock of lambs in a fieM, drives them out, and negli- gently drives away with them a lamb belonging to B which happened to be there. At the time of driving away the lamb A does not intend to convert it, but afterwards, on discovering what had happened, he sells the laiob and keeps the money. This is theft. (2 ) •' A takes home B's umbrella from a club by mistake, and having afterwards found out that it is B's, converts it. A commits theft. * Article 378. conversion after innocent taking. If a person innocently in any way not referred to in any of the preceding Articles, has the possession of any chattel, and converts such chattel, he does not commit theft, although such chattel may have been entrusted to him by the owner, or may be the proceeds of something which was entrusted to him by the owner for the owner's [cose tho (indnr must know that the owner may be found. The distinction w.v8 ujoful as II step towards modifying tho generality of tlio rule laid down by the old text writers : see e.g. 1 Hawkins, P. C 142. " One who finds such goods as I have lost and converts them to his own use, aninw furandi, is no felon."] ' S. I). Art. :103. _ =" [II. V. Uilc, Dear. 149. '' Per Pollock, C.B., and Parke, B.. in Riley's Ciue, p. 150 ; see the question of Martin, B., in I'rcHtun'g Cose. 2 Den. 360.] ose of collecting or re- ceiving money, cannot bo convicted of embezzlement as a clerk or servant of tlie inha- bitants within 24 k 25 Vict. c. 96, s. 68 ; ]{. v. Coley, 16 Cox, C. C. 226. This decision is liowever (]ue.«tioned in a note at p. 2^0 of the report, .is being difiicult to reconcile with R. V. Hall, 1 Moo. C. C. 474. A school trustee whose duty docs not require or au- thorize him to receive the money of tlie Board of Trustees cannot embezzle such moneys ; Ferris v. Inein, 10 U. C. C. P. 116. * [For an instance in which money was received in the name of one person and on the account of another, see R. v. Thorpe, D. k B. 562. ^ Bramwell, B., doubted as to this in Walker'n Case, D. & B. 602; but see R. v. Negtu, L. R. 2 C. C. R, 34 ; i?. v. Ttte, L.&C.3S- R. v. May, L. k C. 13. »i;. V. Nem>, L. R. 2 C. C. B. 37 (judgment of Blaokbum, J.) ; R. v. TUe, L. &. C. 33.1 30G A DIGEST OF [press contract of service or by couduct ' implying such a contract to obey the orders and submit to the control of his master in the transaction of the business which it is his duty as such chn-k or servant to transact. A man may be a clerk or servant " although he was appointed or elected to the employ- ment in respect of which he is a clerk or servant by some other person than the master whose orders he is bound to obey ; ■' although he is paid for his services by a commission or share in the profits of a business ; * although he is a member of any co-partnership, or is one of two or more beneficial owners of the ' property embezzled ; '' although he is the clerk or servant of more masters than one ; " although he acts as clerk or servant only occasionally, or only on the particular occasion on which his offence is committed. "^ But an agent or other person who undertakes to transact business for another, without undertaking to obey his orders, is not necessarily a servant because he receives a salary ; or because he has undertaken not to accept employment of a similar kind from any one else ; or because he is under a duty (statutory or otherwise) to account for money or other property received by him. It seems that in order that a clerk or servant may be within the meaning of this Article it is necessary that the objects of his bcrvice should not be criminal, but a man » [/?. V. Fo«Ke». L. R. 2 C. C, R. 152.] - Illustration (1). ■■' Illustrations (2) and (3). * 31 A 32 Vict. c. 116, s. 1.] R. S. C. c. 164, s. .58. '• [" Money (goods, or effects, bills, notes, securities) or other property."] The words in parentheses are not in the Canadian Act. '■' [Illustration (.3). ' , * ' Illustration (4). ^ . __ _ ■ . . . .i V 8 Illustrations (6)-(9).] " ' ~^"T~~J "'' " THE CRIMINAL LAW. SOT [may bo such a clerk or servant although the objects of his service are in part illegal as being contrary to public policy. Illustrationg. (1.) ' A, elected collector of rates by the vestry of a parish, and having to obey a committee of management, is the servant of the committee of management. (2.) - A was cashier and collector to B at a salary of £150 a year, besides 12A per cent on the profits of the business. A was not to be responsible for losses and had no control over the management of the business- A was a servant to B. (3.) ' A took orders for B and collected money for him according to a journey book given to liim by B, showing the sums to be received and the persons from whom they were due. A was paid by a commission. A was clerk to B, though he was principally employed by C, D, and otliers. (4.> * A was employed by B to go on messages when A had nothing else to do, and B was to give A whatever B chose. A was B's servant. (5.) ' A, a drover, was employed by B, a farmer, on one single occasion to drive a cow and calf to a person to whom they were sold, and to bring back the money. A was B's servant. (6.) " A, the master of a charity school, on one particular occasion con- sents to get a subscription to the funds of the school, at the request of B the treasurer of the committee of management by which A was appointed, and which managed the school. It was no part of A's duty as master to collect any subscriptions. In getting the subscription A was not the servant of B. (7.) ' A, a drover, is employed by B, a grazier, to drive oxen to London, to sell them on the road, if possible, and to take those remaining unsold to a salesman in Smithfield. X is not B's servant. (8.) ** B engaged A, who kept a refreshment house at Birkenhead, to get orders for manure manufactured by B. A was not bound to give any definite amount of time or labor to the purpose. The manure was sent > [R. V. Callahnn, 8 C. & P. 154. See now 12 & 13 Vict. c. 103, s. 15, which applies also to assistant overseers ; It. v. Oullum, L. R. 2 C. C. R. 29 ; and see B. v. Jenaon, 1 Moo. C. C. 434. - McDonald's Case, L. & C. 85. ' R. V. Carr, R. & R. 198. A doubt was expressed as to this last point leferred to in this illustration in R. v. Ooodbody, 8 C. k P. 665; but R. v. liattih 2 Moo. C. C. 257, and R. V. Tite, L. & C. 29, uphold R. v. Garr and recognize the principle that a man may be servant to several persons at onoe. * R. V. Spencer, R. & R. 299. ' ''R.v. Hughee,! Moo. C.C.S70. _1 ^^ _,_ .= -a-- r- - - — « R. V. NeUleton, 1 Moo. C. C. 259. ' R. V. Goodbody, 8 C. & P. 665. The difference between this case and R. v. Hughes in Illustration (5) lies in the power of sale. » /f. V. Wai/ter, D. & B. 600.] ^. ...... .-; I--:. X2 308 A DIGEST [to stores under A's control, and of which he was tenant, though B paid the rent, and was forwarded by A to the customers. A was paid £1 a year salary and a commission. A was B's agent, not his servant. (9.) ' A was engaged by B to solicit orders. He was to be paid by com- mission. He was at liberty to apply for orders whenever he thought most convenient, but was not to employ himself for any other person than B. A was not B's servant. (10.) - The treasurer of a friendly society under 18 & 18 Vict. c. 63, is not the servant of the trustees of the society, though by sec. 22 he is bound before seven days after being required by the trustees (in whom the money is vesteil by sec. 18) to account to the trustees. (11.) ■' A parish clerk is not a servant, because he is not under the orders of any particular person. (12.) ' The chamberlain of the commons of a corporation chosen and sworn in at a court, but whose duty it is to superintend the commons and to receive certain duties which he kept till the end of the year, when his accounts were audited and the balance paid over to his successor, is not a servant, becuuse he holds a distinct office, and is not bound to pay at any time. (13.) •* Tlie servant of a trade union may be convicted of the embezzle- ment of its funds, although some of its rules are void as being in restraint of trade. (14.) " The servant of a society, the members of which took an unlawful oath under 37 Geo. 3, c. 123, and 52 Geo. 3, c. 104, cannot be convicted of embezzlement for misappropriating the funds of the society. 1 [li. V. Nraiw, L. R. 2 C. C. R. 34. - R. V. Ttiree, L. R. 1 C. C. R. 177. A treasurer would appear, as a rule, to be rather a banker than a servant, but every case depends on its special circumstancef!. In ^. v. Murphy, 4 Cox, C. C. 101, the prisoner was both clerk and treasurer (see (he explanation of this case given in R. v. Tyree). In R. v. Welch (1 Den. 199), the circumstances were very similar to those of R. v. Turee, and Coleridge, J., appears to have been satisfied that the prisoner was a servant, and did not reserve the point. It is singular that this o- e is not referred to in 7?. v. Tyree. ■' R. V. Burton, 1 Moody 237, explained in Williams v. Stott, 3 Tyrw. 688 ; 1 Cr. & M. 675. * Williaim v. Stott, 3 Tyrw. 688 ; 1 Cr. & M. 676. ■'• R. v. Stdiner, L. R. 1 C. C. R. 230. In the argument on this case both sides assumed that if the society was criminal the conviction could not bo sustained. Cockburn, C.J., said, " It is unnecessary to consider how far the criminal purposes of a society might affect its title to property." As stolen property may be stolen from the thief who stole it (1 Hale, P. C. 507), the question might deserve consideration if it ever arose. R. v. Hunt, in the next illustration, is in point, but it is only a niti pritw Jeoisicn.] See Art. 483 note. « [^ . V. Hunt, 8 C. & P. 642, by Mirehouse (Com. Serj.), after consulting Bosanquet and Coleridge, JJ.] THE CRIMINAL LAW. 309 ^Article 384. the property embezzled must be the master's. [The offence of embezzlement cannot be committed by the appropriation of property which does not belong to the master of the alleged offender, although such pro- perty may have been obtained by such alleged offender by the improper use of the property entrvisted to him by his master, but property which does belong to the master of the offender may be embezzled, although the offender received it in an irregular way. Illustrations. (1.) -B, the high bailiff of a county court, appointed A a bailiff. By rules of practice it was A's duty to pay over moneys levied by him to the registrar. A received certain money and appropriated it, the money being the money of the registrar and not B's, whose servant (if any one's) A was. This was not embezzlement. (2.) ^ A railway company contracted with B to deliver the railway's coals in the railway's carts, B finding horses and carmen, but the terms of the contract were such as to make the carmen, after receiving the money, answerable to the railway. A, a carman, received money for coals and appropriated it. This was not embezzlement, as the money was not the money of B, but of the railway company. (3.) ^ A, a bargeman, was forbidden by B, his master, to take a cargo on his barge on part of a particular voyage. A took the cargo, appro- priated the freight to himself, and denied the receipt of it when ques- tioned by his master. The person from whom he took the cargo and freight knew of no one in the transaction except A. This was not embez- zlement, as the freight did not belong to B. (4.) " A, entrusted with a cheque for B, gets it cashed by a friend, and not, as was the regular course, at a bank, and appropriates the proceeds. This is embezzlement. " • ' S. D. Art. 310. - [li. V. Glovir, L. & C. 466. ■' li. V. Jiiavtiiciit, Dcnr. 270. Tlic circuiiutaDccs of this case ore at first sight identical withthofcof J{.\. 'J'lioiije.D. & B. £62, in whitli llic conviction wasoflBrnicd; but the special teinis oi' Uie contiact, I sujipete, moke the difference. It is singular that Ji. v. lieavmont is not referred to in J!, v. Thui2>et otherwise than in a note by the reporter at the end of the case. _ .- — — -_^- — ^ ye V. C«;/tt;H, L. R. 2 C. C. R. 28. '' 7^ V. (7fl;e 46 L. J. (M. C.) 134.] 310 A DIGEST OF ^ Article 385. DISTINCTION BETWEEN EM:'EZZLEMENT AND OTHER KINDS OF \HEFT. [The distinction between the embezzlement by a clerk or ser\ ant and other kinds of theft is, that in other kinds of theft the property stolen is taken out of the possession of the owner, whereas ^n embezzlement by a clerk or ser- vant the property embezzled is converted by the offender whilst it is in the offender's possession on account of his master and before that possession has been changed into a mere custody. Illwtrations. (1.) - A, B's servant, has authority to take orders, but none to send out goods from B's shop. A takes an order for pickles and treacle, enters in his master's book an order for pickles only, takes from the shop and delivers to the customer both pickles and treacle, and keeps the price of the treacle. This is a theft of the treacle, as A had no authority to deli- ver it, but it is not an embezzlement of the price, as it was not received on B's account, but in fraud. (2.) •' A, a clerk to a navy tailor, goes on board a man-of-war with clothes delivered to him by his master to sell to the marine artillerymen on board. He afterwards enters as a seaman on another ship, carrying off the clothes. A commits theft, and not embezzlement. (3.) * A, the manager of a branch bank, has in his office a safe, the pro- perty of the bank, and of which the bank manager keeps the key at the head office. A's duty is to put money received during the day into this safe. He takes part of it out of the safe and applies it to his own pur- poses. This is theft, and not embezzlement. (4.) •'' A's duty is to ^et bills accepted and discounted for his master. A having got a bill accepted for his master, lays it with other bills on his master's desk. He then takes it from his master's desk, gets it cashed, and appropriates the money. This is theft. 1 S. D. Art. 311. * [7?. V. Wihon,9 C. 4!k P. 27. The prisoner having been indicted for embezzlement escaped. 3 Ji.v. Hawkins, 1 Don. C. C. 584. ♦ R. V. Wright, D. k B. 431.] R. v. Hmnemi, 35 U. C. Q. B. 603. 6 [Chipchaae't Case, 2 Lea. 699.] THE CRIMINAL LAW. 311 [(5.) ' A receives from his master B.doeli warrants enabling him to get property from the docks, and is induced by B to carry the property to London. A on the road appropriates part of the property. This is theft. (6.) - A, B's servant, is sent by B to f^tcli 240 quarters of oats, which B has purchased, and which are lying on a vessel in the Thames. Whilst the oats are being measured into B's barge, A causes five quarters to be put up in sacks and set aside, the rest being loose. A then sells the sacks of oats for his own benefit froui tiie vessel, and before they were put into the barge.' This is theft. (7.) ' A, B's servant, gets plate for his master from a silversmith, puts it in B's plate-chest, and then takes it out and appropriates it. This is theft. '(If he appropriates it before he puts it into the plate-chest, he commits embezzlement.) (8.) " A, B's servant, receives from C, a fellow-servant, £3 of B's money, and appropriates 10s. to his own use. This is not embezzlement (but is theft). (9.) ' A, a banker's clerk, whose business it is to receive loles o^er the counter and put them in a drawer, receives a note for £100 from the ser- vant of a customer, and appropriates it to himself without putting it into the drawer. This is not theft at common law, but is embezzlement. ^Article 386. evidence as to embezzlement. " The inference that a prisoner has embezzled property by fraudulently converting it to his own use, may be drawn from the fact that he has not paid the money or delivered the property in due course to the owner ; or 1 [/?. V. iVonjai, 1 Cox, C. C. 95; 2 Russ. Cr. 313. 2^Am»am'»(7n8e,2East,P. C. 569. ; ' 3 2 Russ. Or. 314. ■• Per Coleridge, J., in U. v. Wntin, 2 Den. 14. ^ A dictum of Wilde, C.J.,in U. v. Watts seems to say the opposite, but if this were so, the whole distinction between embezzlement and theft would be taken away (as no doubt it ought to bo as a matter of common sense). Soo Mr. Greaves' remarks on Wilde, C. J.'s dictum and on the whole case of R. v. Wntts, 2 Russ. Cr. (4 ed.) 399, notes (b) and (o). « 7?. V. Murray, 2 Buss. Cr. (5th ed.) 314 ; 5 C. & P. 145; 1 Moody, 276. ' Bazeleii's Oaw, 2 Lea. 835 ; 2 East, P. C. 571. Tliis caao occasioned the passing of the 39 Geo. 3, c. 85, now ro-enacted in substance by 24 & 25 Vict. c. 96, 8. 68.] R. 3. C. c. 164, S.52. 8S. D. Art. 312. " [These facts are the common evidence of embezzlement given in every instance, and require no illustration. That the non-payment is only by way of delay, the false account- ing a mistake, &c., arc common topics of defence.] i{. v. Gamminga, 10 U. C. Q. B. 15. 312 A DIGEST OF [from the fact that he has not accounted for the money or other property •which he has received ; or from the fact that he has falsely accounted for it ; or from the fact that he has absconded ; or ' from the fact that upon the examination of his accounts there appeared a general deficiency unaccounted for ; ^ but none of these facts constitutes in itself the offence of embezzlement, nor is the fact that the alleged offender rendered a correct account of the money or other property entrusted to him inconsistent with his having '* embez- zled it.] ^ [li.v. Orove, 1 Moody, 447; 2 Iluas, Cr. 377. Tho authority of this ease, decided by eight judges to seven, has been doubted. Sooili. v.Monh.'Dcar. 626,039; sue, too, B. v. Lambert, 2 Cox, C. C. 309 ; H. v. Llovd Jones, 8 C. & P. 288 ; J{. v. Chapman, 1 C. & K. 119 11. y. Kino, 12 Cox, C. C. 73 ;] Jl. v. Glaxt, 1 L. N. 41. - IE. V. Hodgson, 3 C. & P. 422 ; II. v. Winnall, 5 Cox, C. C. 320. Mr. Greaves' note on this case disapproves of tho summing-up of Erie, J., on what appears to mo to bo a mis- conception of its purport. Mr. Greaves' view tliat tiio fraudulent conversion constitutes tho offence, and that everything else is only evidence of it is obviously correct; but I think that Erie, J., did not mean to say anything inconsistent with this. Wilful false accounting is now a substantive offence. See 33 & 39 Vict. c. 21, g. 2, and S. D. Article 352. a Ji. V. Guelder, Bell, C. C. 284 ; J{. v. Lister, D. & B. 118.] THE ClUMINAL LAW. 313 CHAPTER XXXVI. ' ROBBERY AND EXTORTION BY THREATS. ^ Article 387. ROBBERY. ■* Every one is guilty of felony and liable to imprison- ment for life who, (a.) being armed with an offensive weapon or instru- ment, robs, or assaults with intent to rob, any person ; (&.) together with one or more other person or persons robs, or assaults with intent to rob any person ; or (c.) robs any person, and at the time of, or immediately before, or immediately after, such robbery, wounds, beats, strikes or uses any other personal violence to any person. * Every one is guilty of felony and liable to fourteen years' imprisonment who robs any person. ' Every one is guilty of felony and liable to three years' imprisonment who assaults any person with in- tent to rob. " Article 388. extortion by threats. Every one is guilty of felony and liable to imprison- ment for life, in cases (a.), {b.) and (c.) and for two years' in case who 1 [3 Hist. Cr. Law, 149-150. Draft Code, Part XXVII., s.«. 288-296. " S. D. Art. 313. For definition of robbery, and illustrations as to the nature of the fear and violence involved, gee Article 370.] •' R. S. C. 0. 164, s. 34 ; 24 A: 25 Vict. c. 96, s. 43. ♦ R. S. C. c. 164, s. 32 ; 24 & 25 Vict. c. 96, s. 40. '' R. S. C. 0. 164, s. 33 ; 24 & 25 Vict, o- 96, s. 42. « S. D. Art. 314. • 314 .1 DIGEST OF («.) ' sends, ddivors or utters, or directly or indirectly causes to be received, knowing the contents thereof, any letter or writing, (i.) demanding of any person with menaces, and with- out any reasonable or pro1)able cause, any property, chattel, money, valuable security or other valuable thing; (.ii) " accusing or threatening to accuse or cause to be accused any other person of any crimo punishable by law with death, or imprisonment for not less than seven years, or of any assault with intent to commit any rape, or of any attempt or endeavor to commit any rape, or of any infamous crime as herein defined, with a view or intent, in any of such cases, to extort or gain, by means of such letter or writing, any property, chattel, money, valuable security or other valuable thing from any person ; {b.) ' accuses, or threatens to accuse, either the person to whom such accusation or threat is made or any other person, of any of the infamous or other crimes herein mentioned, with the view or intent, in any of the cases last aforesaid, to extort or gain from such person so accused or threatened to be accused, or from any other person, any property, chattel, money, valuable seciirity, or other valuable thing ; (c.) ' with intent to defraud or injure any other person, by any unlawful violence to or restraint of, or threat of violence to or restraint of, the person of another, or by accusing or threatening to accuse any person of any treason, felony or infamous crime, as herein defined, compels or induces any person to execute, make, accept, indorse, alter or destroy the whole or any part of any valuable security, or to write, impress or afiix his name, ' R. S. J. c. 173, s. 1 ; 24 A 25 Vict. c. 96. p. 41. The words " without any reasonable or probable cause " apply to the demand not to the menaces ; 1{. v. Mmon, 21 U. C. C.P 5S. - R. S. C. c. 173, s. S; 24 & 25 Vict, e 06, s. 56. " R. S. C. c. 173, s. 4 ; 24 & 25 Vict. c. 96, g. 47. An attempt to compel a person by threats to buy a mare is within this section ; R. v. Redman, L. R. 1 C. C. R. 12. * R. S. C. c. 173, 8. 5; 24 & 25 Vict. c. 96, s. 48. 77/A' CIUMINAL LAW. 315 or the name of any othor person or of any company, firm or co-partnership, or the seal of any body corporate, com- pany or society, upon or to any paper or parchment, in order that the same iriay be afterwards made or converted into or used or dealt with as a valuable security ; {d.) ' with menaces or by force, demands any property, chattel, money, valuable security or other valuable thing of any person, with intent to steal the same, whether the thing demanded is received or not. - The crime of buggery, committed either with man- kind or with beast, and every assault with intent to com- mit the said crime, and every attempt or endeavor to commit the said crime, and every solicitation, persuasion, promise or threat offered or made to any person whereby to move or induce such person to commit or permit the said crime, is deemed to be an infamous crime within the meaningof this Article. ^ Every species of parting with any letter herein mentioned to the end that it may come, or whereby it comes, into the hands of the person for whom it is in- tended is deemed a sending of such letter. ' It is immaterial whether the menaces or threats here- inbefore mentioned are of violence, injury or accusation, to be caused or made by the offender or by any other person. 1 R. S. C. c. 173. s. 2; 24 k 25 Vict. c. 96, 8. 45. [R. v. Otiden (L. k C. 288) shows what sort of menaces fall within this section. A obtained five shillings from 13 by pretending to be a bailiff, and threateiiinK to distrain. It was held that his guilt depended on the question wiiether or not he made the threat in such a way as to " unsettle B's mind, and take away from his acts that element of free voluntary action which alone constitutes consent."] A demand with menaces of money actually due id not a demand with intent to steal : ]{. v. Julmxon, 14 U. C. Q. B. 509. [R. v. Rob' chon, L. k C. 483. In that case it was held that a policeman who said he would lock a man up for speaking to a prostitute unless he received five shillings used a " menace," notwithstanding his having no power to do so.] - R. .S. C. 0. 173, 8. 3 (2) ; 24 & 25 Vict. c. 96. s. 40. r - - ^ R. fc'. C. c. 173, s. 3 (3). Tliis provision is not in the English Act. i;;, * R. S. C. c. 173, 8. 6; 24 & 25 Vict, c. 96, s. 49. 816 A DIGEST OF CHAPTER XXXVII. ^BURGLARY, HOUSEBREAKING, ETC. ^ Article 389. DEi^'INITIONS. [In this chapter the followiug words are used in the followiug senses : — ^ Night means the interval between nine of the clo>^kat night and six of the morning. House means a permanent building in which the owner, or the tenant, or any member of the family habitually sleeps at night. ' If a building is so constructed as to consist of several parts having no internal communication between each other, and if these parts are occupied and habitually slept in by different tenants, they may constitute separate dwelling-houses. ' A building occupied with and within the same curtil- age with any dwelling-house, is deemed to be part of the said dwelling-house if there is between such building and dwelling-house a communication either immediate or by means of a covered and inclosed passage leading from the one to the other, but not otherwise. ' [3 Hist. Or. Law, 150. Draft Code, Part XXVIIE, s?. 297-308.] : ; 2 S. D. Art. 315. I B. S. C. c. 161, 8. 2 (/,). [21 & 25 Vict. c. 96, s. 1. It may be worth while to observe that the expressions " nine of the clock," " six of the clock," indicate mean as opposed to solar time, but a question might arise as to whether they mean local mean time or the mean time commonly observed at any given place. London time, or, as it is called, rail- way time, is now very generally observed, and there is a difference of more than twenty minuteb between London and Cornwall. Local mean time is the natural meaning. ■■ The cases and authorities on this subject are collected in Archbold, 518-520, but there is so little principle in the matter, and each case depends so much on its peculiar circum- stances, that I have not thought it advisable to give illustrations.] '' R. S. C. c. 164. s. 36 : 24 & 25 Vict. c. 96, s. 53. THE CUIMINAIj LA IV. 'Ail [Tho word " break " moiiiis {a.) tho breaking of any part, internal or external, of tho building itself, or tho oi)oning by any means what- ever (including lifting, in the casi^ of things kept in tht'ir places by their own weight) of any door, window, shuttor, cellar flap, or other thing intended to cover openings to tho house, or to give passage from one part of it to another, and getting down the chimney ; {b.) obtaining an entrance into the house by any threat or artifice used for that purpose, or by collusion wit." any person in the house. Tho word " outer " means the entrance into tho house of any part of tho ollender's body, or of any instrument held in his hand for the purpose of intimidating any per- son in tho house, or of removing any goods, but does not include the entrauce of part of an instrument used to break tho house open. Jllustration. ' A opens a sash wiinlow, puts a crowbar under a shutter three inches inside the window, and tries to break open tlie shutter, but was not witliin the sasli window. Here tliere is a breaking, but no entry.] - Article 390. robbina places of worship— burglary. Every one is guilty of felony and liable to imprison- ment for life who [(«.) ^ breaks and enters any church, chapel, meeting- house or other place of divine worship, and commits any felony therein ; or (b.) ^ breaks and enters any dwelling-house by night with intent to commit a felony therein. The offence in this case is called burglary.] ' [/?. V, Tiust, 1 Moo. 183 ; and see li. v. Bobo-ts, 2 East, P. C. 487.] = S. D. Art. 316. ^ R. S. C. c. 164, 8. 86 ; 24 & 25 Vict. c. 96, s. 50. ^R. S. C. 0.164, ss. 37,38; [24 & 25 Vict. o. 96, s. 62 for punishment; 2 Ruse. Cr. 2 (5th ed.) for definition.] 318 A DIGEST OF ' Article 301. IlOUSKiniKAKINd AND (COMMISSION OK FELONY. ■ Evory one ia yiiilty of felony and lia])l(^ to lourt(>(>n yt'iirs' imprisoiinn'iil [who luniks jiiul ('iiii'r8 and commits any IMony in any dwi'llin^'-liouso or any buildinj^ being within the curtihigc of any dwelling-house and occupied therewith (but not being part thereof within Article 889), or any schoolhouse, shop, warehouse, or counting- house.] 'Article 3!)2. enteiiino dwellino-iiouse with intent. ' Every one is guilty of felony and liable to seven years' imprisonment [who breaks and enters any of the buildings mentioned in Articles 390 or 391, or who by night enters any dwelling-house with intent in either case to commit felony therein.] ''Article 393. breaking out after committina felony. " [Every one who, being in any of the buildings men- tioned in Articles 390 or 391, commits a felony therein, and breaks out of the same, is guilty of felony, and is liable to the same punishment as if he had broken in and committed felony therein. If such building is a dwelling- house, and the offence is committed at night, the offender commits burglary. Every one who enters any dwelling-house with intent to commit a felony therein, and breaks out of the same by night, is guilty of burglary.] » S. D. Art. 317. - R. S. C. c. 164, 88. 40, 41 ; 24 & 25 Vict. o. 96, ss. 55, 56. 3 S. D. Art. 318. •• 11. S. C. 0. 164. 88. 39, 42; 24 & 25 Vict. c. 96, 8S. 54, 57. * 8. D. Art. 319. « R. S. C. c. 164, 88. 35, 37, 40, 41 ; 24 & 25 Vict. c. 96, 88. 50, 51, 55. 56. THE C/t/M/NAL LAW. 310 ' AUTICLE 3'J4. HEINO l'Y)TTNn IN P()>iSKMSI()N oK nOTTHKnilKAKIN(f INHTUUMKNTS. ^ Every Olio in yuilly ol" a misdt'uieaiior and lia])lo for tho first oflbiiti' to llivt'c yearH* imprisoniiKMit, or il' he has pnn'iously bocii roiivictt'd ol" I'olouy or of such iiiisdo- incanor to t(Mi years' iuii)risoiuaent, who is louiid l)y iiiuht, {(I.) ' aruu'd with any daiincroiiis or olFonsivo weapon or iiifstruiiK'ul whatever with intent to break or enter into any dwellinu-house or other buikling' whatsoever, and to eoinniit any I'elony therein ; (b.) having in his possession, without hiwi'ul exeuse (the proof of which exeuse lies upon him), any pi«k- loek key, ' crow, jack, bit, or other implement of house- breaking- ; (or any mutch or combustible or explosive substance ;) ' (r.) having his face ])hickene(l or otherwise disguised with intent to I'ommit any felony ; (d.) in any dwelling-house or other building whatsoever, with intent to commit any felony therein. 1 S. D. Art. 32(). = R. S. C. 0. 101, S8. 43, 44 i 24 & £5 Vict. o. 90, ea. 58. 59. ■' lA common key may be suoli an instriunont ; ]{. v. OhUnim, 2 Den. 472. Maule and Crcsswell, JJ., were botli of upiiiion that there ^houlrt lie a comma between '' picklock " and '' kpy." H. v. Oldham, however, makes this unimportant.] ^ Tlie words in parentheses are not in the English Act. 320 ^l Did EST OF cnkVTVAi xxxviir. PUNISllMhWT OF THEFTS AND OFFENCES liESEMlilJNG TIIKFT COM M in El) IN llESl'ECT OF I'AJiTlClJLAlt TlllXaS, IX I'AUTlCl'LAli PLACES, II Y I'Alt- TJCCLA n I'EliSONS—ItKCElVINa OOODS UNLA WFCLL Y OUT A IS ED. • AUTICI.E 89 ■). PUNISHMENT FOR STEALTNC} TIIINOS FOR WHICH NO SPF.CIAL PUNISHMENT IS lM!OVn)ED. •'' Every ouo who coimnitH Kimplc liircciiy, or auy felony made pimisliablc l)y The Larceny Ail in the sumo manner as simple larceny, is guilty of a felony, and liable to sev«'U years' imprisonment, if no punishment is other- wise specially provided.' ' The offender is liabh^ to ten years' imprisonment if he has been previously convicted of a felony, either sum- marily or upon indictment. Article 39 G. punishment for appropriating property with intent to defraud, for which no special punish- ment is provided. •^ Every one who, unlawfully and with intent to de- ' [3 Hist. Cr. Law. 14G-60, Draft Code, Part XXV.l = 8. D. Art. 321. 8 R. S. C. c. 104, 8. 5; 24 k 21 Vict. o. 00, s. 4. Sir Jiimos Fitz.-Jiunes Strphen in Note (2) to Article 321, states tiiat the thefts fallini; iindor this provision '' appear to bo the simple larceny referred to in 24 k 25 Vict. c. 96, ss. 33 and 36 ; " but refers to Hale's definition (1 Hale, 503) of simple larceny as being larceny without violence or putting in fear. Sec also Bish. Cr. Law. Vol. 1, s. 560, Vol. 2, s. 757, where tho term is used to ex- clude compound larcenies which are defined to be larcenies committed under circum- stances of aggravation such as larcenies from the person, the dwelling-house, the shop, robbery and the like. ■• " Except in the cases hereinafter otherwise provided for," that is by The Larceny Act ; but the effect would be the same if the special provision wa« contained in any other Act. '' R. S. C. 0. 164, s. 6 ; 24 & 25 Vict. o. 96, s. 7. » R. S. C. c. 164, 8. 85. See J{. v. McDonald, decided under C. S- C. c. 92, 8.72, which THE CUiMiyAL LAW. 321 rraud, by liikini;', by cmbo/zliiig-, by obtiiinii'jL? by lulHe pr('toii«H^H, or ill any olluT iiuiimtT vvliiitKOfvcr, appro- priab'H to his own use or to tho uso of any othor per- son, any proixTty whatsoi'vor, so as to deprive any other person temporarily or absolutely of the advaniage, use or onjoyiin'nt of any btMidieial interewt in 8U(3h property in law or in equity, which such other pernon has tht'rein, is s^^'lty of a miKdcnieanor, and liablo to soveu years' imprisoniTK'nt. If the value of such property exeeeds two hundred dollars, tho oUeuder is liabh- to fourteen years' imprisou- ment. AiiTiChK 39*7. ADDITIONAL PUNIHllMENT WHEN VATiUE OF PROPERTY EXCEEDS TWO HUNDRED DOLLARS. ' Every one who is convicted of an offence aj^ainst The L'Tceny ilc^by stealinn*, emb(^zzling, or obtaining by false pretences any propi^ty whatsoever, the value of which is over two hundred dollar.s, is liable to seven years' imprisonment, in addition to any punishment to which he is otherwise liable for such offence. -Article 898. valuable securities. ' Every one who steals, or for any fraudulent purpose destroys, cancels, obliterates or conceals the whole or any part of any ' valuable security, other than a do(;ument of however, was not in tho same terms as s. 85 ; R. v. Vfurner. 7 R. L. U6 ; R.y. Horneman, 4 P. & B. 529 ; H. v. Mnrtin, 3 G. &. 0. 124. For the definition of " property " see s. 2 («). Aiite p. 6. It includes stamps issued by authority of Parliament or a Legislature. See also as to stealing stamps intended to be ulFixed to certificates issued under The Oat //i«p(ct»on ^c<. R. S. C. 0. 101, s. 45. ' R. S. C. 0. 164, 8. 86. _^_::_—.-^-^-H^--''~ '-"-■'"■'" -' S. D. Art. 323. » K. S. C. c. 164. 8. 12 : 24 & 26 Vict. o. 96, s. 27, The word " conceals " is not in the English Act. For definition of the expression valuable security, see R. B. C. o. 164, s. 2 (rf.) ante p. 7. T '622 A Dfa/'JST OF title to land, commits foloiiy of the same nature and in the same de^'reo, and punishable in the same manner as if he had stolen any chattel of the like value with the share, interest, or deposit to which the security so stolen relates, or with the money due on the security so stolen or secured thereby and remainino; unsatisfied, or with the value of thi^ goods or other valuable thinf? represented, mentioned, or referred to in or by the security. 'Article 399. testamentary instruments. ^ Every one is guilty of felony and liable to imprison- ment for life who, either during the life of the testator or after his death, steals or, for any fraudulent purpose, destroys, cancels, obliterates or conceals the whole or any part of any will, codicil or other testamentary instrument, whether the same relates to real or personal property, or to both. ^Article 400. document of title to lands. * Every one is guilty of felony and liable to three years' imprisonment who steals or, for any fraudulent purpose, destroys, cancels, obliterates or conceals the w^hole or any part of any documiMit of title to lands. ^Article 401. offenders against provisions of articles 399, 400, not liable to conviction in certain cases. •^ No person is liable to be convicted of any felony 1 S. D. Art. 324 (a.) 2 R. S. C. c. 164, g. 14 ; 24 & 25 Vict. c. 96, s. 29. For definition of " testamentary instrument " sec B. S. C. c. 164, 9. 2 (t.) ante p. 6. 3 S. D. Art. 327 (a.) < K S. C. c. 164, B. 13 ; 24 & 25 Vict. c. 96, s. 28. For definition of " document of title to lands," see R. S. C. o. 164, s. 2 (6.) ante p. 5. 6 S. D. Art. 323 ; bi it the provision does not apply to that Article which represents 24 & 25 Vict. 0. 96, s. 27. It applies to the felonies mentioned in ss. 28, 29. « R S. C. c. 164, 3. 14 (3) ; 24 & 25 Vict. c. 96, s. 29. THE CRIMINAL LAW. . 323 m(?ntionod in Articles 399, 400, by any evidence what- ever, in respect of any act done by him, if he has, at .^ny time previously to his being charged with such offence, first disclosed such act, on oath, in consequence of any compulsory prucecs of any court, in any action, suit or proceeding bond fide instituted by any person aggrieved, or if he has first disclosed the same in any compulsory examination or deposition before any court upon the hear- ing of any matter in bankruptcy or insolvency. ' Article 402. judicial or official documents. - Every one is guilty of felony and liable to three years' imprisonment who steals or, for any fraudulent purpose, takes from its place of deposit, for the time beiuo", or from any person having the custody thereof, or unlawfully and maliciously cancels, obliterates, injures or destroys the whole or any part of any record, writ, return, affirmation, recognizance, cognovit actionem, bill, petition, answer, decree, panel, process, interrogatory, deposition, affidavit, rule, order or warrant of attorney, or of any original document whatsoever, of or belonging to any court of justice,' or relating to any cause or matter, begun, depending or terminated in any such court, or of any original document in anywise relating to the busi- ness of any office or employment under Her Majesty, and being or remaining in any office appertaining to any court of justice, or in any government or public office. ' S. D. Art. 327 (6.) = R. S. C. 0. 164, 8. 15 ; 24 & 25 Viot. c. 96, s. 30. The 26th section of the statute C. S. C 0. 92 contained the words " any notarial minute or the original of any other authentio Act." This was held not to include an authentic copy of an Acte or deed passed before a notary ; R. v. McGinnia, 7 L. C. J. 311. ^ The Police Court of the City of Toronto is a Court of Justice within R. S. C. c. 164, 8. 15, and it is a felony to maliciously destroy a record thereof;7f. v. Mason ; 22 U. C. C. P. 246. t2 324 A DIGEST OF Akticle 403. stealing post letters, etc.— stopring mails with intent to rob or search — issuing money orders fraudulently. ' Evo^y oue is guilty of felony and liable as a maxi- mum puuishmout to imprisoumeut for life in cases (a), (b), {c), (d) (e), (h), (i) and (j) ; for seven years in case (k), and for five years in cases (/) and (§•), who does any of the following acts, that is to say : — ■ {(i) steals, embezzles, secretes or destroys any post letter ' containing any chattel, money or valuable security ; ' '' (b) sieals from or out of a post letter' any chattel, money or valuable security ; * " (c) steals a post letter bag ; '' 1 R. S. C. 0. 35, SB. 79-85, 88. The minimum punishment only is given in ss. 83, 84t 85 Ui.), (i.) and (/.) - R S. C. c. 35, 8. 79. ■' The expression " post letter" means any letter transmitted or deposited in any post office to be transmitted by tho post or delivered through the post, or deposited in any letter box put up anywhere under the authority of tho Postmaster-General to be trans- mitted or delivered through the post :— and a letter shall be deemed a post letter from the time of its being so deposited or delivered at a post office, to the time of its being delivered to the person to whom it is addressed ; and a delivery to any person authorized to receive letters for the post shall be deemed a delivery at the post ofiioe ; and a delivery of any letter or other mailable matter at tho house or office of the person to whom the letter is addressed, or to him, or to his servant or agent, or other person considered to be authorized to receive the letter or other mailable matter, according to the usual manner of delivering timt person's letters, shall be a delivery to the person addressed. R. S. C. 0. 35, s. 2 (t.) '' The expression " valuable security " includes the whole or any part of any tally, order or other security or document whatsover entitling or evidencing the title of any person to any share or interest in any public stock or fund, whether of Canada, or of the United Kingdom, or of any British colony or possession, or of any foreign country, or in any fund or stock of any body corporate, company or society in Canada or elsewhere, or to any deposit in any savingrs' bank, or the whole or any part of any debenture, deed, bond, post office money order, bank note, bill, note, cheque, warrant or order or other security for the payment of money, or for t,be delivery or transfer of any goods, chattels or valuable thing, whether in Canada or el :awhere. Id. s. 2 (m.) 5 Id. s. 80. « Id. 8. 81. ' The expression " post letter bag " includes a mail bag or box, or packet or parcel, or other envelope or covering in which mailable matter is conveyed, whether it does or does not actually contain mailable matter- Id. s. 2 (k.) THE CRIMINAL LAW. 325 ' {d) steals a post letter from a post letter bag, or from any post olRce/ or from any officer or person employed in any business of the Post Office of Canada, or from a mail ;' ' (e) stops a mail with intent to rob or search the same ; ■' (/) steals, embezzles, secretes or destroys any post letter; . •' {g) unlawfully opens any post letter bag, or unlaw- fully takes any letter out of such bag ; " (/<) receives any post letter or post letter bag, or any chattel, money or valuable security, parcel or other thing, the stealing, taking, secreting or embezzling whereof is hereby declared to be felony, knowing the same to have been feloniously stolen, taken, secreted or embezzled ; ^ («') steals, embezzles or secretes any parcel sent by parcel post, or any article contained in any such parcel ; "(/) unlawfully issues any money order with a fraudu- lent intent ; or — '^' [k) steals, purloins, embezzles or obtains by any false pretence any key suited to any lock adopted for us 3 by the Post Office Department, and in use on any Canada mail or mail bag, or aids or assists therein. The minimum term of imprisonment is limited in cases (a), {b), (c), {d), {e) and (/t) to five years; in cases (/), (t), (.;■) to three years, and in case {k) to two years. 'K. S. C. c. 35,8S.81,2(A.) - The oxpression "post office" means any building, room, street letter box, receiving box or other receptacle or place where post letters or other mailable matter are received or delivered, sorted, made up or despatched. Id. s. 2(?.) "The expression "mail " includes every conveyance by which post letters are carried, whether it is by land or by water. Id. s. 2(/.) *id. S.81. • ■"' -■'-;":-:,■. "Id. S.79. « Id. s. 82. ■ Id. s. 81. « Id. s. 83. ^ Id. s. 85. As to a postmaster or other person authorized to issue money orders issuing any such order before he receives the money payable therefor, see Art. 441 (e.) '"Id. 8. -88. 326 A DIGEST OF Article 404. stealing mailable matter other than post letters. ^ Every one is guilty of a misdemeanor, and liable to five years' imprisonment - who steals or for any purpose embezzles or secretes any printed vote or proceeding, newspaper, printed paper or book, packet or package of patterns or samples of merchandise or goods, or of seeds, cuttings, bulbs, roots, scions or grafts, or any post card or other mailable matter,' not being a post letter sent by mail. Article 405. election documents. * Every one is guilty of a felony, and liable to a fine, in the discretion of the court, or to seven years' imprison- ment, or to both fine and imprisonment, who steals, or unlawfully (or maliciously), either by violence or stealth, takes from any person having the lawful custody thereof, or from its lawful place of deposit for the time being, or aids, counsels or assists in so stealing or taking, any writ of election, or any return to a writ of election, or any (indenture) poll-book, voters' list, certificate, affidavit or report, or any document or paper made, prepared or drawn out according to or for the requirements of any law in regard to dominion, provincial, municipal or civic elections. ; : Article 406. RAILWAY tickets. ^ Every one is guilty of felony, and liable to imprison- 1 K. S. C. 0, 35, 8. 90. « Art. 17. ^ The expression "mailable matter" includes any letter, packet, parcel, newspaper book or other thing which by The Pout Office Act, or by any regulation made in pursuance f it, may be sent by post ; R. S. C. o. 35, s. 2 (;.) * R. S. C. c. 8, s. 102 ; c. 164, s. 56. The words in parentheses are not in R. S. C. c. 8, s. 102. 6R.SC. 0.164, s. 16. THE CKIMTNAL LA W. 327 ment for any term less thiiu two years, who steals any railway or steamboat ticket, or any order or receipt for a passage on any railway or in any steamer or other vessel. 'Article 407. CATTLE. - Every one is guilty of felony, and liable to fourteen years' imprisonment, who (a.) steals any cattle ; or (6.) wilfully kills any animal with intent to steal the carcase, skin or any part of the animal so killed, pro- vided the offence of stealing such animal is felony. ^Article 408. dogs, birds, beasts and other animals. * Every one who (a.) steals any dog, or any bird, beast or other animal ordinarily kept in a state of confinement or for any dom- estic purpose, or for any lawful purpose of profit or advantage, not being the subject of larceny at common law ; or (6.) wilfully kills any such dog, bird, beast or animal, with intent to steal the same, or any part thereof, Is liable, on summary conviction, to a penalty not > exceeding twenty dollars over and above the value of the dog, bird, beast or other animal, or to one month's imprisonment with hard labor. Every one who, having been convicted of any such offence, afterwards commits any such offence, is liable to three months' imprisonment with hard labor. 1 S. D. Arts. 322, 323 (a.) 2 R. S. C. c 164, 83. 7, 8 ; 21 & 2^5 Viot, o. 96, ss. 10, 11. For definition of cattle, see R. S.C. 0. 131,8. 2C/)aH*ej>.3. ^S.D. Art. 328(a), W.) * R. S. C. c. 164, 8. 9 ; 24 & 25 Viot. c. 96, 88- 18, 21. 328 A DIGEST OF ' Article 409. PIGEONS. " Every one who unlawfully and wilfully kills, wounds or takes any house-dove or pigeon under such circum- stances as do not amount to larceny at common law, is liable, on summary conviction, to a penalty not exceed- ing ten dollars over and above the value of the bird. 'Article 410. OYSTERS. ' Every one is guilty of felony, and liable to seven years' imprisonment, who steals any oysters or oyster brood from any oyster bed, laying or fishery, being the property of any other person, and sufficiently marked out or known as such. Every one is guilty of a misdemeanor, and liable to three months' imprisonment, who unlawfully and wil- fully uses any dredge or net, instrument or engine what- soever, within the limits of any oyster bed, laying or j&shery, being the property of any other person, and suf- ficiently marked out or known as such, for the purpose of taking oysters or oyster brood, although none are actually taken, or unlawfully and wilfully with any net, instrument or engine, drags upon the ground of any such fishery. Nothing herein applies to any person fishing for or catching any floating fish within the limits of any oyster fishery with any net, instrument or engine adapted for taking floating fish only. ' 1 S. D. Art. 328 (/.) 2 R. S. C. c. 16J, 8. 10 ; 24 & 25 Vict. o. 98, s. 23. « S. D. Arts. 327 (c), 328 {(r.) * R. S. C. c. 164, 88. 11, 5 ; 24 & 25 Vict. c. 96, 8. 26. As to injuring or disturbing oys- ter beds contrary to Ihe Fisheries Acty see R. S. C. c. 95, 8. 21 (6.) THE CltlMlNAL LAW. 329 'AllTICLE 411. THINGS FIXED TO HUILDINGS OR IN LAND. - Every one is g'uilty of felony and liable to seven years' imprisonment who steals, or rips, cuts, severs or breaks, with intent to steal, any glass or woodwork belonging to any building whatsoever, or any lead, iron, copper, brass or other metal, or any utensil or fixture, whether made of metal or other material, or of both, respectively fixed in or to any building whatsoever, or anything made of metal fixed in any land, being private property, or for a fence to any dwelling house, garden or area, or in any square or street, or in any place dedicated to public use or ornament, or in any burial ground. '. ^ Article 412. trees in pleasure grounds, etc., of five dollars' value — trees elsewhere of twenty- FIVE dollars' value. ''Every one is guilty of felony and liable to seven years' imprisonment who steals, or cuts, breaks, roots up or otherwise destroys or damages, with intent to steal, the whole or any part of any tree, sapling or shrub, or 'S.D. Art. 327(c). 2 R. s, c. c. 164, 83. 17, 5 ; 24 >fe 25 Vict. c. 00, s. 31. " [The words " burial ground " were added to do away with a doubt expressed by Baron Bramwell {R. v. Jonea, D. A' B. 55.S) as to whether a churchyard was a "public place" within 7 Jk 8 Geo. 4, c. 29, s. 44. The other judRCS did not ishare this doubt. The present enactment does not absolutely remove it, as there are many churchyards which are not burial grounds. However, the case of It. v. Jomn, distinctly decided the point.] An offender against this and the next two Articles cannot be convicted on any evidence disclosed by him on oath in consequence of the compulsory processs of any court in any action instituted by any person aggrieved ; R. S. C. o. 164, s. 20 (2). * S. D. Art. 327 {d). ^ R. S. C. c. 164. ss. 18, 5; 24 & 25 Vict. c. 96, s. 32. [The section is re-arranged for the sake of brevity. The change also represents tlie sense, for it has been held that in estimating the damage done the value of several trees injured at the same time may be put together ; R. v. Shepherd, L. R. 1 C. C. R. 118.] 330 A DIG EST OF any uncLTWood, if the viiluo of tho artiolo or articles stolon, or the amount of the injury done, exceeds thesrm of twenty-five dollars; or cxeoeds the sum of live dollars if the article or articles stolen or damai^ed grows in any park, i^leasure ground, garden, orchard or avenue, or in any ground adjoining or belonging to any dwelling- house. 'Article 413. trees of the value of twenty-five cents. -Every one who stt^als, or cuts, breaks, roots up, or otherwise destroys or damages, with intent to steal, the whole or any part of any tree, sapling or shrub, or any underwood, the value of the article stolen, or the amount of the damage done, being twenty-five cents at the least, is liable, on summary conviction, to a penalty not exceed- ing twenty-five dollars over and above the value of the article stolen or the amount of the injury done. Every one who, having been convicted of any such offence, afterwards commits any such offence, is liable, on summary conviction, to three months' imprisonment with hard labor. Every one who, having been twice convicted of any such ofitmce, afterwards commits any such offence, is guilty of felony, and liable to seven years' imprisonment. Article 414. ; receiving stolen trees exceeding in value ten DOLLARS. ' Every one is guilty of a misdemeanor and liable to the same punishment as the principal offender, who receives or purchases any tree or sapling, or any timber » S. D. Art. 32i (A.) = R. S. C. 0. 164, S3. 19, 5 ; 24 & 25 Vict. o. 96, s. 33. •' R. S. C. c.,164, 8. 20. See Chapter XLI, p. 380. rilK VlilMlNAL LAW. 331 mado thi'r«'IVoiii, cxcccdiii*^- in value the sum of ten dolliirH, knowing" the same to liuvis boon stolon or unlaw- fully cut or curriod away. AllTICLE 415. TIMHEK FOUND ADRIFT. ' Every one is guilty of a misdt'meanor and liable to seven years' imprisonment [a.) who, without the consent of the owner thereof, (i.) takes, holds, keeps in his possession, colltM'ts, con- ceals, receives, appropriates, purchases, sells or causes or procures or assists to be taken possession of, collected, concealed, received, appropriated, purchased or sold, any timber, mast, spar, saw-log or other description of lumber which is found adrift in, or <;ast ashore on the bank or beach of, any river, stream or lake ; or (ii.) wholly or partially defaces or adds, or causes or procures to be defaced or added, any mark or number on any such timber, mast, spar, saw-log or other description of lumber, or makes or causes or procures to be made any false or counterfeit mark on any such timber, mast, spar, saw-log or other description of lumber ; or (6.) refuses to deliver up to the proper owner thereof, or to the person in charge thereof, on behalf of such owner, or authorized by such owner to receive the same, any such timber, mast, spar, saw-log or other description of lumber. - Article 416. fences— stiles — gates. : ^ Every one who steals, cuts or breaks or throws down, with intent to steal, any part of any live or dead fence, or any wooden post, pale, wire or rail set up or used as a > 11. S. C. c. 164, ss. 87, 5. See Art. 537. ■ S. D. Art. 328 (»). » R. S. C. 0. 164. s. 21 ; 24 & 25 Vict. e. 96, s. 34. 332 A DIOKST OF fence, or any stilo or gate, or any part thereof roHpeo tivoly, is liable, on summary conviction, to a penalty not exceeding twenty dollars, over and above the value of the article or articles so stolen or the amount of the injury done. Every on«^ who, having been <;onvicted of any such offence, afterwards commits any such oll'encc is liable, on summary conviction, to thrive months' imprisonment with hard labor. ' Articli. '11. FAILING TO SATIHFY .JUSTICE THAT POHSESSION OF TREE, ETC., IS LAWFUL. ^ Every one who, having in his possession, or on his premises with his knowledge, the whole or any part of any tree, sapling or shrub, or any underwood, or any part of any live or dead fence, or any post, pale, wire, rail, stile or gate, or any part thereof, of the value of twenty-five cents at the icast, is taken or summoned be- fore a justice of the peace, and does not satisfy such justice that ho came lawfully by the same, is liable, on summary couA'^iction, to a penalty not exceeding ten dollars, over and above the value of the article so in his possession or on his premises. • •'' Article 418. roots, plants, etc., growing in gardens, etc. ' Every one who steals or destroys, or damages with intent to steal, any plant, root, fruit or vegetable produc- tion growing in any garden, orchard, pleasure ground, ' S. D. Art. 328 (j). ■ R. S. C c. 104, ?. 22 ; 24 & 25 Vict. c. 96, s, 36. " Cordwood" is not the whole or any part of a tree within the statute ; li. v. Gancell, 33 U. C. Q. B. 303. ''S. D. Art. 328 (A). < R. S. C c. 164, 88. 23, 5 ; 24 & 25 Vict. c. 90, s. 36. McDonald v. Cameron, 4 U. C. Q. B. 1. THE CJilMINAL LA W. 333 uurHcry jiroiind, hot-liouNc, ^ri'di-liouHc or coiiHorvatory, JH liiililc, oil snrnuiiiry conviction, to a penalty not exceed- ing twenty dolliiTH, over and above the value of the article ho stolen or the lunount ol' the injury done, or to out) month'K imprisonnient with or without hard labor. Every one who, having- been convicted of any such olPencc, afterwards commits any such offence, is j^uilty of felony, and liable to seven yt-ars' imprisonment. ' AlJTICLE 410. ROOTS, PLANTS, ETC., GROWING ELSEWHERE THAN IN GARDENS, ETC. ^ Every one who steals, or d(^stroys or damages with intent to steal, any cultivated root or plant used for the food of man or beast, or for medicine, or for distilling, or for dyeing, or for or in the coursi? of any manufacture, and growing in any land, open or enclosed, not being a garden, orchard, pleasure ground, or nursery ground, is liable, on summary conviction, to a penalty not exceed- ing five dollars, over and above the value of the article so stolen or the amount of th(^ injury done, or to one month's imprisonment with hard labor. Every one who, having been convicted of any such offence, afterwards commits any sueh offence, is liable to three months' imprisonment with hard labor. '■'Article 420. ores of metals. • . * Every one is guilty of felony and liable to imprison- ment for any term less than two years who steals, ' or ' S. D. Art. 328 (1). ■ R. S, C. 0. 164, s. 24 ; 24 & 25 Viot. c. 96, s. 37. " 8. D. Art. 327^. ^ R. S. C. c. 164, 8. 25 ; 24 & 25 Vict. c. 96, 8. 3S. For other offences respecting metals, see Arts. 446, 447 and 448. ° The possession, contrary to the provisions of any law in that behalf, of any smelted 884 A Diaicsr OF Hovers with intent to stoul tho oro of luiy uintal, or any quiirl/. la[)iM (•aiiiniiniiris, niiinifiiiKvst', or uiundii-, or any piooe of ufold, silvor or other nictnl, or any wa- houHe, and by any menace or threat puts anyone tlien-in in bodily fear. •■' AUTICLE 424. 8TEALINO IN MANUFACTORIES, ETC. * Every one is guilty of felony and liabb; to fourteen years' imprisonuuMit who steals, to the value of two dollars, any woollen, linen, hempen or (!otton yarn, or any goods or artieles of silk, woollen, linen, cotton, alpaca or mohair, or of any one or more of such materials mixed with each other or mixed with any other material, whilst laid, placed or exposed, duriu S. D. Art. 325 (c.) "11.8.0. c. 164, s. 45, 46 ; 24 & 25 Viot. c. 96, ss. 60, 01. 'S.D. Art.325W.) * R. S. C. c. 164, 8. 47 ; 24 & 25 Viot. o. 90, s. 62. ■ ' R. S. C. 0. 164, 8. 48 : 6 & 7 Viot. o. 40, a. 2. 33G A DIGEST OF imprisonment for any term loss than two years, when the offence is not within the next preceding Article, who, having been entrusted with for the purpose of manufac- ture or for a special purpose connected with manufac- ture, or employed to make, any felt or hat, or to prepare or work up any woollen, linen, fustian, cotton, iron, leather, fur, hemp, flax or silk, or any such materials mixed with one another, or having been so entrusted, as aforesaid, with any other article, materials, fabric or thing, or with any tools or apparatus for manufacturing the same, sells, pawns, purloins, secretes, embezzles, ex- changes or otherwise fraudulently disposes of the same, or any part thereof. Article 426. t STEALING FROM SHIPS, WHARVES, ETC. " Every one is guilty of felony and liable to fourteen years' imprisonment who (a.) steals any goods or merchandize in any vessel, barge or boat of any description whatsoever, in any haven or in any port of entry or discharge, or upon any navigable river or canal, or in any creek or basin be- longing to or communicating with any such haven, port, river or canal ; or {b.) steals any goods or merchandize from any dock, wharf or quay, adjacent to any such haven, port, river, canal, creek or basin. ■^ Article 421 stealing wreck. * Every one is guilty of felony and liable to seven years' imprisonment who steals any wreck. ^ 'S.D. Art.326(e.),(/.) "- R. S. C. 0. 164, 8. 49 ; 24 & 25 Vict. o. 96, 8. 6.3. ^S. D. Art.325(ff.) < R. S. C. c. 81, s. 36 (c.) ; 24 & 25 Viot. o. 96, s. 64. ^ The expression "wreck " includes cargo, stores and tackle jf any such vessel and of all parts of the vessel separated therefrom, and also the property of shipwrecked persons ; R. S. 0. o. 81, s. 2 («.) THE GRUHNAL LAW. 33'2 Article 428. stealing things deposited in indian graves in british columbia. ' Every qno who, in British Columbia, steals, or with- out the sanction of the Lieutenant Grovernor of the Province, cuts, breaks, destroys, damages or removes any image, bones, article or thing deposited in or near any Indian grave, or induces or incites any other person so to do, or purchases any such article or thing after the same has been so stolen, or cut or broken, destroyed or damaged, knowing the same to have been so acquired or dealt with, is liable, on summary conviction, for a first offence, to a penalty not exceeding one hundred dollars, or to three months' imprisonment, and for a subsequent offence, to the same penalty and to six months imprison- ment with hard labor. ^ Article 429. ' clerks and servants. ' Every one is guilty of felony and liable to fourteen years' imprisonment who, being a clerk or servant, or being employed for the purpose or in the capacity of a clerk or servant, (a.) steals any chattel, money or valuable security be- longing to or in the possession or power of his master or employer ; or (6.) fraudulently embezzles any chattel, money or valuable security, or any part thereof, delivered to or received or taken into possession by him, for or in the name or on the account of his master or employer, although such chattel, money or security was not received » R. S. C. c. 164, s. 98. s S. D. Art. 326 (A). ' R. S. C. 0. 164, S8. 51, 52 i 24 & 25 Viot. c. 96, ss. 67, 68. 338 A DIGEST OF into the possession of such master or employer, jtherwise than by the actual possession of his clerk, servant or other person so employed. ' Article 430. public servants. ^ Every one is guilty of felony and liable to fourteen years' imprisonment who, being employed in the public 8ervice of Her Majesty, or of the Lieutenant G-overnor or government of any province of Canada, or of any munici- pality, (a.) steals any chattel, money or valuable security be- longing to or in the possession or power of Her Majesty, or of such Lieutenant Governor, government or munici- pality, or entrusted to or received or taken into jjossession by him by virtue of his employment ; or {b.) being entrusted, by virtue of such employment, with the receipt, custody, management or control of any chattel, money or valuable security,'* embezzles any chattel, money or valuable security entrusted to or taken into possession by him by virtue of his employme'^t, or any part thereof, or in any manner fraudulently applies or disposes of the same, or any i)art thereof, to his own use or benefit, or for any purpose whatsoever except for the public service, or for the service of such Lieutenant G-overnor, government or municipality. 1 S. D. Art. 325 (t). 2 R. S. C. c. 164, S8. 53, 54 ; 24 & 25 Vict. c. 96, ss. 69, 70. '' For any such offence any ofiBcer, clerk, or servant of any Government Savings' Bank (R. S. C. 0. 121, s. 19) or of certain savings' banks in Ontario and Quebec (R. S. C. c. 122, f . 32) are liable to imprisonment for life. Every officer of the post office embezzles public money if he converts it to his own use, or invests or lends it. His neglect or re- fusal to pay over or transfer or disburse such moneys when required so to do by the Post- master General is primd facie evidence of embezzlement. Every one who advises or participates in such embezzlement commits a misdemeanor and is liable to a fine equal to the amount of money embezzled and to imprisonment for a term not exceeding seven years and not less than three months ; R. S. C. c. 35, s. 106. Any militiaman who leaves Canada with any article of public clothing or other public or corps property in his pos- session is guilty of embezzlement ; R. S. C. c. 41, s. 56. THE CRIMINAL LAW. 339 Article 431. public servants refusing to deliver up chattels, moneys, or books, etc., lawfully demanded OF THEM. ' Every one who, being employed in the public service of Her Majesty or of the lieutenant governor or govern- ment of any province of Canada, or of any municipality, and entrusted by virtue of such employment with the keeping, receipt, custody, management or control of any chattel, money, valuable security, book, paper, account or document, refuses or fails to deliver up the same to any one authorized to demand it, is guilty of a fraudu- lent embezzlement thereof, and liable to fourteen years' imprisonment. ' Article 432. bank officers and servants. - Every one is gailty of felony, and liable to imprison- ment for life or for any term not less than two years, who, being a cashier, assistant cashier, manager, officer, clerk or servant of any bank, or savings bank, secretes, embezzles or absconds with, any bond, obligation, bill obligatory or of credit, or other bill or note, or any secu- rity for money, or any money or effects entrusted to him as such cashier, assistant cashier, manager, officer, clerk, or servant, whether the same belongs to the bank or be- longs to any person, body corporate, society or institution, and is lodged with such bank. 1 R. S. C. c. 184, 8. 55. As to auoh oflFencea committed by postmaaters, see 11. S. C. o. 35, B. 101 : and by members of the North West Mounted Police Force in respect of clothing, arms, etc,, when dismissed or discharged, R. S. C. o. 45, s, 22. 2 R. S. C. 0. 104. s. 59 ; R. v. Cumminaa, 16 U. C. Q. B. 15, and R. v. Glass, 1 L. N. 41, are distances of embezzlement by clerks of banks. Section 59 is, in The Revised Statutes, included with thu provisions relating to frauds by agents, bankers or factors, and is one of the twelve sections mentioned in s. 71 and of the thirteen sections mentioned in s. 72 of that chapter. It will be observed« however* that the offence is a felony and not a mis- ''"meanor. See Art. 477. z2 840 A DIGEST OF ' Article 433. tenants and lodgers. ^ Every one ■who steals any chattel or fixture let to be used by him, or her, in or with any house or lodging, whether the contract has been entered into by him or her, or by her husband, or by any person on behalf of him or her or her husband, is guilty of felony, and liable to imprisonment for any term loss than two years ; and if the value of such chattel or fixture exceeds the sum of twenty-five dollars, is liable to seven years' imprison- ment. Article 434. bringing stolen property into canada. ^ Every one who brings into Canada, or has in his pos- session therein, any property stolon, embezzled, con- verted or obtained by fraud or false pretences in any other country, in such manner that the stealing, embez- zling, converting or obtaining it in like manner in Canada would, by the laws of Canada, be a felony or misdemeanor, knowing it to have been so stolen, embez- zled or converted, or unlawfully obtained, is guilty of an offence of the same nature and punishable in like manner as if the stealing, embezzling, converting or unlawfully obtaining such property had taken place in Canada. » S. D. Art. 326. = R. S. C. 0. 164 s. 67 ; 24 & 25 Vio. c. 06, s. 74, As to the fraudulent removal of goods by tenants, contrary to H Geo. 2, o. 10, s. 4, to prevent distress "ee Ji. v. Lackie, 7 0. R. 431. ^ R. S. C. 0. 164, s. 88 ; 24 & 25 Vict. o. 96, s. 114. M. v. Btu, 5 All. 630, in which it was held that there must be evidence that the goods were stolen according to the law of the place where the act was committed, was decided under R. S. N. B. c. 158, s. 8, which dif- fered materially from the provision on which this Article is founded. See note, p. 632, in which R. v. Hennestey, 35 U. C. Q. B. 603 is cited. THE CRIMINAL LAW. 841 CHAPTER XXXIX. ' OBTAINING PROPERTY BY FALSE PRETENCES AND OTHER CRIMINAL ERA UDS AND DEALINGS WITH PROPERTY. ' ^ Aeticle 435. obtaining goods, etc., by false pretences. Every one is guilty of a misdemeanor and liable to three years' imprisonment who (a.) ' by any false pretence obtains from any other per- son any chattel, money, or valuable security with intent to defraud ; or [b.) ' with intent to defraud or injure any other person by any false pretence, fraudulently causes or induces any other person to execute, make, accept, endorse, or destroy the whole or any part of any valuable security, or to write, impress, or affix his name, or the name of any other person, or of any company, firm or co-partnership, or the seal of any body corporate, company or society, upon any paper or parchment, so that the same may afterwards be made or converted into, or used or dealt with as, a valuable security. [It is not offence to obtain by false pretences any chattel which is not the subject of larceny at common law, but it is immaterial whether such a chattel so ob- tained is or is not in existence at the time when the false '[3 Hist. C. Law 160-2.] a S. D. Art. 329. " R. S. C. c. 164, s. 77 ; 24 Sc 2.5 Viot. c. 96, s. 88. A member of an unincorporated oompany cannot bo convicted of obtaining by false pretences the money of the company ; li. v St. Lovix, 10 L. C. 1\. 34. * R. S. C. c. 164, s. 78 ; [24 & 25 Vict. c. 96, s. 90. This section was meant to cover such oases as li. v. Bavger, D. & B. 307, and greatly extends the old law on the subject. See Mr. Greaves's note to the section in his edition of the Acts.] 342 A DIGEST OF [prctonco is made if the thing when made is obtained by the false pretence. It is not an offence to obtain credit in a partnership acconnt by false pretences as to the amount which a partner is entitled to (charge against the partnership funds. Illustrations. (1.) ' A obtains two pointers worth £5 each by a false pretence. Tiiis is not an offence within this Article. (2.) - A orders a van from B, and gets it made and delivered !/ falsely pretending to be agent to a company. Tliis is an offence, altliough the van was not in existence when the pretence was made. (3.) ' A travels as agent for his partners, and obtains commission from them by falsely pretending he has received orders. His commission would form a charge on the partnership funds. This is not an offence within this Article.] Illustrations founded on Canadian Cases. (4.) * A obtains a loan upon the security of a lot of land by falsely representing that there is a brick house on the lot. This is a false pretence. (5.) ■' A takes B's note in part payment for a horse. After maturity A threatens to sue B, who gets C to pay the money, A promising to get the note from a solicitor's office where he said it was and give it up the next morning. A has in fact sold the note to another person. A obtains the money by a false pretence. (6.) " A, on a precipe that his clerk by his direction forges, obtains from the Accountant in Chancery a check payable to B, who is entitled to the money. There is no intent to defraud B. A obtains the check by a false pretence. (7.) ' A, who has been discharged from B's service, falsely representing herself to be in B's employ, purchases from C a parcel of goods, which C sends to B's residence, where they are handed -to B's servant. A having preceded the clerk who delivers the parcel, snatches it from the servant, saying " This is for me, I am going in to see B," and makes off. A obtains the goods by a false pretence. ' [R. V. Robimon, Bell, 34. s K. V. MaHin, L. R. 1 C. C. R. 56. 8 R. V. Evans, L. & C. 256. I am unable to follow the reasoning of this judgment.] * R. V. Huppel, 21 U. C. Q. B. 281. B R. V. Lee, 23 U. 0. Q. B. 340. • R. V. Parkinson, 41 U. C. Q. B. 5«. ^ R. V. Robinton, 9 L. C. R. 278. THE CRIMINAL LAW. 343 (8.) ' A falsely represontiiig that it ia valid sells to B a railway j)a8S good only to carry a particular pcrHoii, and which 1$ cannot uso without committing a fnuid on the railway. li iloes not at tho time know that the pass is not transferable. A ol)tains by a false pretence the money paid for the pass. (fl.) -' A to whom an order for 15 bushels of crain, that tho municipal authorities are distributing to the poor, has been given, obtains a second order by falsely pretending to have lost the first, and striking out part of the first order presents botii and has thorn filled. A obtains the second order, and the grain which lie receives thereon, by a false pretence. (10.) ' A gives B C's note for $100.00 in exchange for a horse, knowing at the time that tiie note lias been paid except as to a few dollars. This is a false pretence by conduct. (11.) 'A presents post ollico orders, knowing that they have been issued by a post-master fraudulently, and without any money having been paid therefor, and receives the amount thereof. This is a false pre- tence by conduct. (12.) ■' A is being supplied by B with gooils under an arrangement with C to pay therefor on the amount thereof l)eing endorsed on his (C's) note which A holds. A obtains goods from B on the promise in a tlay or two to bring the note to B to have the amount so endorsed thereon. A does not keep his promine. This is not a false pretence. (13.) " A obtains B's note on the promise, which he fails to keep, to give B $6,000.00 on what he then owed him, out of the proceeds of the note. This not a false pretence. (14.) ' B intending to pay A 75 cents takes out of his purse a $2.00 bill saying that he will get it changed. A says " I'll change it." Whereupon B hands the bill to A who makes oflf with it. A does not obtain it by a false pretence. (15.) •* A by a false pretence obtains from B a promissory note for $1,200.00, which B pays in four or five days and before maturity. A does not obtain the money by a false pretence. (16.) " A solicits B to purchase a package of counterfeit bank notes. B intending to bring A to justice, pretends to buy and gives A $50.00 and a watch as security for the balance that he agrees to pay for the package. ' R. V. Abrahams, 24 L. C. J. 325. - li. V. Campbdl, 18 U. C. Q. B. 413. With respect to the grain it is a false pretence by conduct. » R. V. Davis, 18 U. C. Q. B. 180. * R. V. Dcsaauer. 21 U. C. Q. B. 231. <> R. V. Bertleg, 13 U. C. C. P. 607. « R. V. Pickup, 10 L. C. J. 310. ' li. V. Gemmdl, 26 U. C. Q. B. 312. 8 E. V. Bradv, 26 U. C. Q. B. 13. " R. V. Corey, 22 N. B. R. 513. The false pretence mu?t be that by which the com- plainant is induced to part with his property ; R, v. Brien, 12 E. L. 697. 344 A DrOKHT OF A does not >?ive B tlio pncka>?o of countorfcit notes that iS in parting witli hifl property expects to receive, but a pucka^jeof waste pai)or. A obtains the money and watch by a false pretence. (17.) ' A represontinjj; himself to bo the atient of B by false representa- tions induces V, to 8ij.'n a contract to pay $240.00 for seed wheat. B after- wards calls n{)on V and procures him to siyn and deliver to him a promis- 8ory note in his (B's) favor for fLMO.OO. The contract does not provide for the p'vinj.? of a note, and when the false representations are made a note is not mentioned, but C gives the note bocauHo he has entered into the contract. A by a false pretence has induced C to write his name upon a paper so that the same may afterwards be dealt with as a valuable security, -Article 436. definition of "false pretence." [The expression, " false pretence," in Article 435, means a false representation made either by words, by writing, or by conduct, that some fact exists or existed, and such a representation may amount to a false pretence, although a person of common prudence might easily have detected its falsehood by enquiry, and although the existence of the alleged fact was in itself impossible. But the expression "false pretence" does not include (a.) a promise as to future conduct not intended to be kept, unless such promise is based upon or implies an existing fact falsely alleged to exist ; or (b.) such untrue commendation or untrue depreciation of an article which is to be sold as is usual between sellers and buyers, unless such untrue commendation or untrue depreciation is made by means of a definite false asser- tion as to some matter of fact capable of being positively determined. ' Illustrations. (1.) * A, not being a member of the University of Oxford, represents » R. V. liumal, 17 0. R. 227, 2 S. D. Art. 330. " See also iilustrationg founded on Canadian cases Art. 435, * \R- V. Barnard, 7 C. & P. 784. The defendant said ho was a member of Magdalen College, but Bolland, B., said he would have left the case to the jury on the mere wear- ing of the dress if nothing had been si^id,] THE cm Ml XAL LAW. 345 [liiiiiself to be suoli by wearing a stiulont'H cap and ^rown, and tboreby ob- taining n pair of straps froju a tradesman in Oxford. This is afalHO pretence l)y conduct. (2.) ' A presents a note for Co as a>;ood note for tbat amount, knowing; that tbo bank l)y vhich it was issued had stopped. This is a false pre- tence by coiuhict. (3.) - A Kive.s a ehocpie in disciiarne of a debt. Tiiis is a representation tliat A has authority to draw unon tlie bank for the amount of tlie ciieque, and timt the chetpU) is a i?ood and valid order for tiio payment of money. If those representations are untrue to tlio knowlediro of A, and if he in- tends to defraud and obtain tioods by makiufi them, lie commits the olfence of obtaining; jioods by false pretences, but the more givinj^ of a cheque is not necessarily a representation tliat the dra^v^^r has funds at the bank to meet it. (4.1 ■' The secretary of an Odd Follows' lodge tells a member that he owes the lodge 13s. (id., and thereby obtains that sum from him, wliereas in fact he owed only L's. I'd. This is a false pretence, though an enquiry might easily have been made. (5.) * A represents to B that A has power to bring back B's husband (who had run away) over hedges and ditc^hes, untl tluit a certain stuff which A has is suiliciont and ellectual for that purposo, and thereby obtains from B a dress and two six pences. This is a false pr tence, although the alleged fact is impossible. (6.) ^ A tells B that A is going to pay his rent on the 1st of March, and wants £10 to make up his rent, whereby he obtains £10 from B. This statement, though false, is not a false pretence, as it relates to something intended to be done at a future time. (7.) " A falsely tells B that A has bought skins, and wants fA 10s. to fetch them by the xailway, and that he will sell them to B if B will let A have the £4 10s. on account, which B does, partly because B believes that A has bought the skins, and partly because B believes tbat A will sell the skins to B. This is a false pretence, as part of it alleges falsely an exist- ing fact. ' [Per Crompton, J., in Enans't Case, Bell, C. C. 192. The rost of the Court seemed to be of the same opinion. -It V. Hitzelton, L. R. 2 C. C R. 134. See, too, 1{. v. Jackson, 3 Camp. 870; R. v. Parker, 2 Moo. 1. There was some slight ditFercnce of opinion (or rather of expression) amongst the judges in tliis cnso. The judges wore anxious to point out that to give a cheque on a bank where the drawer has no balance is not necessarily an ofTence, as he may have a right to overdraw, or a reasonable expectation that if he does, his drafts will be honored. These considerations would seem to affoct not the falseness of the pre- tence, but the defendant's knowledge of its falsehood and his intent to defraud. '•' Woollev's Case, 1 Den. 559. See, too, R. v. Jessop, D. & B. 442. * R. V. Giles, L. k C. 502. » Lee's Case, L. k C. 309. « R. V. West, D. & B. 575.] 84G .1 Dfr/KST OF [(8.) ' A olttiiins iiionoy frdin B by promiHinn to nmrry lior, and to funiisli a Ikxi.sh witli tli(\ iiKHicy, rrpn'Montiii^liiiiiMolf to l>o an uiiiiiiirrifld iiiaii. A in fact is luaniod. Tin- r«prt«H(Uitutioii tluit A was utimarriod is a false protonco, though tlie proin'iHUH bamul upon it would not have boon I'alwi protctict^H without it. (0.) - A iiiducoH li to l('iiil iiiiii nioiioy by siiyiuji that cortuiuHpooiiH are of tho best (piality, that tiioy are eipiul to Eli^i^^^ton's A (a (h'Siriptiou known in the trade), tliat tht< foundation is of the best material, and tiiat tlioy liave as niiicli Hilver in them as Klkin^?lon's A. Tliese words beiiif? construed as inure exa;z)<(tration of tlie (luality of tite H[)oons, and not us contuiniuK a statement of ndelinite fact us to the quality of silver in the spoons, are not a false pretence. (10.) ' A induces 11 to buy a chain by sayinji, " It is ir)-carnt iio\{\, and you will see it stamped fina on every link. It was made fur me, and I paid nine jruiiieas tor it. The maker told nic it was worth £') to sell as old Hold." Tl >< 'ain bad on every link the mark ir)-ct, Tiie chain in fact was (i-caral ^'oid, worth in all t'l5 Oa. ;5d. This is a false pretence.] (11.) ' A obtains from B a promissory note by the false representation that he is at the time prepared to advance him £100 thereon. This is a false pretence. ''Article 437. " of " obtaining." . ''[The word " obtains," in Article 485, means an obtain- ing by the offender from the owner, with an intent on the part of the offender to deprive the owner permanently and entirely ol' the thing" obtained, and it includes cases in which things are obtained by a contract which is ' l/i*. V. ./fioiwon.L. .fc C.157. = J{. V. lin/'iii, D. it B. 2livenid to any other person I'or the use or benefit, or on account, of the person niakinj^ such false pretenee, or of any other person, with int»*nt to defraud, is deemed to havt^ obtained suth money, chattel, or valu- able security within the meaning- of Article 4;}5. - If the person from whom auythinjj is obtained by a person making a false pretence; is not deceived by such false pretence, but delivers the thing intended to be obtained by it, knowing the pretence to be false, such thing is not deemed to have been obtained by such pre- tence. ' If a thing is obtained by the joint effect o'' several false pretences, any one of which is a false pretence within the meaning of the last Arti(!le, and if the thing would not have been obtained without that false pre- tence, it is deemed to have been obtained by such false pretence. * Illustrations. (1.) * A draws a bill upon B in London and gets it disconntod by C in Russia l»y falsely pretend inji, by means of a forged authority, that he is authorized to draw upon B for the amount of the bill. A does not attempt to obtain money by false pretences from B, though he meant that C should forward the draft to B, and sliould obtain payment of the amount and though tiis act if done in England would have been an obtaining by false pretences from C. (2.) " A by a false pretence obtains from B, a livery stable keeper, the use of a horse for the day, for which he would have been charged Ts. This is not obtaining goods by false pretences, as the horse was returned. ' R. S. C. 0. 16), B. 77 ; 21 & 25 Viot. c. 96, s. 86. = [niu8trntion(7). ' Illustration (8).] * Seo illustrations founded in Canadian oases, Art. 435. " [«. V. O'arntt, Deor. 232. •if. V. Kilham, L. R. I C. C. R. 261.] 84H A DIGEST OF [(!).) ' A, by falao proUtncoH, iiuluccH I) to ontor into pnrtiiorNhlp with hiiUi mill to mlviincu UM) m purt uf tlic cnpttiii of tlio concorii. It trtmts tlin purtiiordliip hh iin oxlHtin^ ono, ainl <>ii(|(vt) tliat tiio wliolo iIiccho wnH of tlio muxw <|uality aH tbo taHter. Tliin \h ol)tuiniiiK inonoy by a fulso protontio. (5.) ' A inducoH 11 to lond liini XllKl on a doiioait of litlo duudn to land l)y falHiily protondinjr tliat a liouso liad l)oon built ujwn it wortli XJIOO. TliiH ia ol)taininK i^KK) by a false protiUKHt. (0.) ' A, by falHoly prt»tondin« to l)o a naval oll'u'er, induces H to enter into a contract to board and lod^^e liim at a guinea a weol{, and under tliiH contract \n HUpplind willi food for a \veel<. TliiH in not ()l)taininK' food by falHo j)r«tcnceH, as tlm Hupply of food in coii80(iuonco of tlu* contract is too remotely tbo result of tbo falso pretonco to booomo tlie subjoct of an indictment. (7.) ' A makes a falne pretonco to B to obtain money, wldob pretence is false to B's knowlod^,'e. 1> pays A tbo money and i)ro8ocutu8 liim for obtaining it by a false pretence. This is not obtaining money by a falso pretence. (8.) A falsoly pretends to B, (1), that he iw an tinmarried man; (2), that he will marry 13; (3), that if 13 will givo him US bo will furnish a house for bimsolf and I'er to live in after marriage- By these false i)retences he obtains tlie £8. Ka is deemeil to have obtained the XS by the falso pre- tence that he is an unmarried man, which is a false representation as to an existing fact.] (0 ) " A publishes an advertisement intended and fitted to convey the impression that there is a {lorsou named A. Brient living at Holt Trow- bridge, in the County of Wilts, who is a minister of religion, and that he has instituted a bond fide competition, and made arrangeme its to present prizes to the successful conpetitors and to givo the proceeds ('.erived from ' [R. V. \7ataon, D. & B. 348. The judges (juarded in their judgment against the notion that fraudulently inducing a man to enter into a partnership could in no case be within the statute, as, lor instance, of the al'egcd existence of any trade which was a false pretonco. = U. T. Ahhntt, 1 Den. 273. •' H. V. Burgon, D. & B. 11. * 11. V. Gardner, D. & B. 40,] Sec also 11. v. McQiuin-ie 22 U. C. Q. B. COO. '' [11. V. Milk, D. & B. 205. It was, however, an attempt to obtain money by a false pretence.] « R. V. Handell, 16 Cox, C. C. 336, THE ClilMl^AL LAW. Nt [ till) (uitratwo fccH of ciiiiiinUitorH, nflur (UMlui'tiiiK tliH prinm, to a cliftritublo inHtittitioii. Tlioro In no miicIi iiemon uh tlitt Itov. A. Iirii R. S. C. 0. 41, s. 95. 2 52 Vict, c 26 8. 11. 3 R. S. C. 0. 81, 8. 36 (d,) For definition of " wreck " see ante Art. 427 note. THE CRIMINAL LAW. 353 Aeticle 445. other offences respectina wrecks and marine stores. ' Every one is guilty of a misdemeanor, and liable, on conviction on indictment, to two years' imprisonment, and on summary conviction before two justices of the peace to a penalty of four hundred dollars or six months' imprisonment, who (a.) secretes any wreck, or defaces or obliterates the marks thereon, or uses means to disguise the fact that it is wreck, or in any manner conceals the character thereof, or the fact that the same is such wreck, from any person entitled to inquire into the same ; (b.) receives any wreck, knowing the same to be wreck, from any person other than the owner thereof or the receiver of wrecks, and does not within forty-eight hours inform the receiver thereof ; {c.) oflfers for sale or otherwise deals with any wreck knowing it to be wreck, not having a lawful title to sell or deal with the same ; {d.) keeps in his possession any wreck, knowing it to be wreck, without a lawful title so to keep the same, for any time longer than the time reasonably necessary for the delivery of the same to the receiver ; or (c.) boards any vessel which is wrecked, stranded or in distress, against the will of the master, unless the person so boarding is, or acts by command of, the receiver. ■^ Every one taking possession of wreck within the limits of Canada, who (a.) fails to deliver the same to the receiver of wrecks ; or (b.) whenever the Minister of Marine and Fisheries has dispensed with such delivery upon any conditions, does ' R. S. C c. 81, s. 37 (a.), (rf.), (e.). (/.), (flr.) "■ R. S. C. 0. 81, 8. 27. 2a 3fi4 ^1 DIGEST OF not either comply with such conditions or deliver the wreck to such receiver as soon as possible, forfeits any claim to salvage, and is liable to pay as a penalty double the value of suS.D. Art..335. *R. S. C.,0. 164, 3. 91 ; 22 and 23 Vict., c. 85, 8. 21. The words in parentheses are not in the English Aot- 8 R. 8. C, 0. 164, 88. 96 and 97. 77//V (CRIMINAL LAW. 361 which is or is ])TopoH('d to bo put on the rcyiHtor, intiinr either as priiKripal or affcnt, knowinffly and with intent to de(u>ive, makes or assists or joins in, or is privy to the makinr^ of, any material false statement or representa- tion, or suppresses, conceals, assists or joins in, or is privy to the suppression, withholding^ or concealinp^ from any judge or reijistrar, or any person employed by or assisting the registrar, any material document, fact or matter of information. Article 45*7. frauds in respect to the registration of titles to land in the teuuitories. ' Every one is guilty of a misdemeanor, and liabl to a penalty not excjceding five hundred dollars, or to impris- onment, with or without hard labor, for any term less than two years, who (a.) wilfully makes any false statement or declaration in any dealing in land under T7te Territories Real Property Act ; or {b.) suppresses or conceals, or assists or joins in, or is privy to the suppressing, withholding or concealing, from the registrar, court or judge, or either of them, any material document, fact or matter of information ; or (c.) wilfully makes any false statement in any c eclara- tion required under the authority of or made in pursu- ance of the said Act ; or (d.) fraudulently procures or is privy to the fraudulent procurement of any certificate of title or instrument, or of any entry in the register ; or (e.) knowingly misleads or deceives the court, the judge, the registrar, or any person by the said Act authorized to require explanation or information in ' R. S. C. 0. 51, 8. 139. The offence is triable before a judge of the Supreme Court of the Korth-West Territories, or a stipendiary magistrate, without a jury. A DIQEUT OF TONpfict to any land or the titlo to any land under tho said Act, or in n^Hpt'ct to which any dealing- or trans- miuision iu proposed to he ro^iistered ; or (/.) in a party to or privy to any i'raudulent act what- evt^r in any matter connected with the working ol' the said Act. AuTKiliK 458. FRAUDULENT SALKS OF PROPKHTY IN QUEHEC. ' Every one is guilty of a misdemoanor, and liable to a fine not excetuling two thousand dollars, and to on** year's iinprisonment, who, in the Province of Quebec, knowing the existence of any unregistered prior sale, grant, mortgages hypothec, privilege* or incumbrancre, of or upon any real property, fraudulently makes any sub- sequent sale of the same, or of any part thereof. . Article 459. fraudulent hypothecation of real property in QUEBEC. ■ Every one who, in the Province of Quebec, pretends to hypothecate any real property to which he has no legal title, is guilty of a misdemeanor, and liable to a fine not exceeding one hundred dollars and to one year's imprisonment. The proof of the ownership of the real estate rests with the person so pretending to hypothecate the same. Article 460. fraudulent seizures of lands in quebec. ' Every one is guilty of a misdemeanor, and liable to one year's imprisonment, who, in the Province of Quebec, knowingly, wilfully and maliciously causes or procures •K. S. C. 0. 164,88.92,93. - K. S. C. 0. 164, H8. 92, 04. ^R. S. C. c 104, 88. 92,95. THE CJilMLSAL LA iV. 368 to 1)0 Ht»iz»'(l and takt'ii in i'xcciition, any lands iind tono- njcntH, or otlu'i- real propiTly, nitiiato within any town- Nliip in tho Provinti' ol' (^ucIm'*-, not ))»'inj^, at the time of 8uch Hcizuro, tho homi fide property of tho porson or por- Bons au,ainHt whom, or whoso oNtate, the execution is iHsued, knowinjr i\u) namo not to be the proptTty of tho person or persons aji^ainst whom th»' execution is issued. Akticlk 4(n. UNLAWFULLY API'LVIN(f MAIIKM TO PUHLIC STORES. ' Ev»;ry om* is guilty of a misdemeanor, and liable to imprisonment for any term h'ss than two years, who, without lawful authority, the proof of w^hieh shall lie on him, applies any of thes" marks mentioned in the note hereto in or on any public stores.' '."JOnndSl Vict. (D.)o. «,«. 4; .18 mid 3!l Vict. o. 25, b. 4. '''The murks deecriliod hy (lio followiiiKHchodulo iniiy bo iipplied hy iiny publlo depurU mvnt, iind tliu uunlruutors, oIllucrM iiiid uurknioii of xucli dcpurtmuiit in ur on uny publio itorei to denote Her MnJoKty'8 projierty in Huali xtorcs. SCIIEUULE. Murks ap/tropviiitml /)»• Her Mnjenti/'n mi- in or on JVJdvi/, Milititrii, Onlnnnce, Barrack, llonpilnl iiiitl Virluallinn Sturi'H. STORES. IIcmi)cn cordage iind wire ropo. Ciinvai, foamought hummocks and sea- men's buKS. Bunting. Candles. Timber, metal and other stores not before enumerated. MARKS. White, black or colored worsted tlircads laid up with tho yarns and the wire, respectively. A blue line in a serpentine form. A double tnpu in the warp. Blue or red cotton threads in oooh wiok, or wioka of rod cotton. The broad arrow, with or without the let- ters W.U. M(irkn (ippropriated for «*<• on gtorrx, the prnihrlti of Iter Miijettii in the right qf Her Gov- ernment of Cumula. STORES. Publio Stores. MARKS. The name of any publiu department, or the word "Canada," either ulono or in combination with a Crown or the Royal Arms. "In this and the five Articles next following, the expression "stores" includes all goods and chattels and any single store or article; and tho expression " publio stores " includes all stores under the care, superintendence or control of the Admiralty, of the 364 A DIGEST OF * Article 462. taking marks from public stores. " Every one is g^uilty of felony, and liable to imprison- ment for any term less than two years, who, with intent to conceal Her Majesty's property in any public stores, takes out, destroys or obliterates, wholly or in part, any of the marks mentioned » in note (^) to the Article next preceding. Article 4bd. UNLAWFUL POSSESSION, SALE, ETC., OF PUBLIC STORES. ^ Every one who, without lawfnl authority, the proof of which lies on him, receives, posses 3s, keeps, sells or delivers any public stores bearing any such mark as aforesaid, knowing them to bear such mark, is guilty of a misdemeanor and liable, on conviction on indictment, to one year's imprisonment, and if the value thereof does not exceed twenty-five dollars, on summary conviction before two justices of the peace to a fine of one hundred dollars or to six months' imprisonment with or without hard labor. Article 464. presumption where offender is in her majesty's service, or a dealer in marine stores, OR OLD METALS. ; k- * If the person charged with such a misdemeanor as last aforesaid was, at the time at which the offence is War Department, or of any public department or office of the Government of Canada, or of the public or civil service thereof, or of any branch of such department or office ; 50 and 51 Vict. (U.). c i5, s- 2 (c), (d). 'S. D. Art.. 341. = 50 and 51 Vict. (D.)e. 4o,.s. 5; 38 and 39 Vict. c. 25, s. 5. 3 50 & 51 Vict. (D.)c.45,8s. 6,8; 30 & 31 Vict, c 119, ss. 7,9. < 50 & 51 Vict. (D.) c. 45, s. 7 ; 30 & 31 Vict. c. 119, s. 8. THE CRIMINAL LA W. 1565 charged to have been committed, in Her Majesty's service or employment, or a dealer in marine stores, or a dealer in old metals, knowledge on his part that the stores to which the charge relates bore such mark as aforesaid, shall be presumed until the contrary is shown. Article 465. not satisfying justices that possession of public stores is lawful. ' Every one, not being in Her Majesty's service, or a dealer in marine stores or a dealer in old metals, in whose possession any public stores bearing any such mark are found, who, when taken or summoned before two justices of the peace, does not satisfy such justices that he came lawfully by such stores so found, is liable, on summary conviction, to a fine of twenty-five dollars ; and If any such person satisfies such justices that he came lawfully by the stores so found, the justices, in their dis- cretion, as the evidence given or the circumstances of the case require, may summon before them every person through whose hands such stores appear to have passed ; and Every one w^ho has had possession thereof, who does not satisfy such justices that he came lawfully by the same, is liable, on summary conviction of having had possession thereof, to a fine of twenty-five dollars, and in default of payment to imprisonment for any term not exceeding three months, with or without hard labor. Article 466. searching for stores near her majesty's vessels. ^ Every one who, without permission in writing from '50&51Viot. (D.)o. 45,8. 9;30&31Viot. c 128,s. 12. = 60&51 Viet (D.)c.45,8s. 11, 12;38&39Viot- c. 25, s. 8. 3«6 A DIGEST OF the Admiralty, or from some person authorized by the Admiralty in that bohali', creeps, sweeps, dredges, or other- wise searches for stores in the sea, or any tidal or inland water, within one hundred yards from any vessel belong- ing to Her Ma-jesty, or in Her Majesty's service, or from any mooring place or anchoring place, appropriated to such vessels, or from any mooring belonging to Her Majesty, or from any of Her Majesty's wharves or docks, victualling or steam factory yards, is liable, on summary conviction before two justices of the peace, to a fine of twenty-five dollars, or to three months' imprisonment, with or without hard labor. :■-.', AjimcL:E 461. : f RECEIVING REGIMENTAL NECESSARIES, ETC., FROM SOLDIERS OR DESERTERS. ' Every one is guilty of a misdemeanor, and liable, on conviction on indictment, to five years' imprisonment^, and on summary conviction before two justices of the peace to a penalty not exceeding forty dollars, and not less than twenty dollars and costs, and, in default of payment, to imprisonment for any term not exceeding six months, who, (a.) buys, exchanges or detains, or otherwise receives from any soldier or deserter any arms, clothing or furni- niture belonging to Her Majesty, or any such articles belonging to any soldier or deserter as are generally deemed regimental necessaries, according to the custom of the army ; or (b.) causes the color of such clothing or articles to be changed ; or (c.) exchanges, buys or receives from any soldier any provisions, without leave in writing from the officer iR.S.C. 0.169,88.2,4; 44and45 Viot. o. 58,8. 156. a Art. 17. THE CRIMINAL LAW. 367 commanding the rogiment or detachment to which such soldier belongs. Article 468. receiving, etc., necessaries from marines or deserters. ' Every one i.s guilty of a misdemeanor, and liable, on conviction on indictment, to five years' imprisonment," and, on summary conviction before two justices of the peace to a penalty not exceeding one hundred and twenty dollars, and not less than sixty dollars and costs, and, in default of payment, to imprisonment for a term not exceeding six months, who buys, exchanges or de- tains, or otherwise receives from any seaman v>r marine, upon any account whatsoever, or has in his possession, any arms or clothing, or any such articles, belonging to any seaman, marine or deserter, as are generally deemed necessaries, according to the custom of the navy. Article 469. : .; RECEIVING, etc., A SEAMAN's PROPERTY. ^ Every one is guilty of a misdemeanor who detains, buys, exchanges, takes on pawn or receives, from any seaman,' or any person acting for a seaman, any seaman's property,'* or solicits or entices any seaman, or is employed by any seaman to sell, exchange or pawn any seaman's iR.SC. c. 169,88.3,4. 2 Art. 17. ^R.S.C. 0.171,8.2; 32 and 33 Vict. o. 57, s. 4. ■* Tho expression " seaman " means every person, not being a commissioned, warrant or subordinate officer, who is in or belonps to Her Majesty's Navy, and is borne on tho books of any one of Her Majesty's ships in commission ; and every person, not being an officer as aforesaid, who, being borne on the books of any hired vessel in Her Majesty's ser- vice, is, by virtue of any Act of the Parliament of the United Kingdom for the time being in force for the discipline of the Navy, subject to the provisions of such Act ; R. S. C. 0. 171, s. 1 (6.) ^The expression ''seaman's property " means any clothes, slops, medals, necessariea or articles usually deemed to be nesessaries for sailors on board ship, which belong to any seaman ; R. 8. C. o. 171, s. 1 (c.) 368 A DIGEST OF property, unless he acts in ignorance of the same being seaman's property, or of the person with whom he deals being or acting for a seaman, or unless the same was sold by the order of the Admiralty ' or Commander-in-Chief. The offender is liable, on conviction on indictment to five years imprisonment, " and on summary conviction to a penalty not exceeding one hundred dollars ; and for a second offence, to the same penalty, or, in the discre- tion of the justice, to six months' imprisonment, with or without hard labor. Article 4t0. * NOT SATISFYING JUSTICE THAT POSSESSION OF SEAMAN'S PROPERTY IS LAWFUL. "Every one in whose possession any seaman's property is found, who does not satisfy the justice of the peace before whom he is taken or summoned that he came by such property lawfully, is liable on summary conviction, to a fine of twenty-five dollars. ■ ■;->;,•':;:" Article 4*71. '':■?'■■■ unlawful disposition of arms, etc., of the militia FORCE. 'Every one who unlawfully disposes of or removes any arms, -accoutrements or other articles belonging to the crown or a militia corps, or who refuses to deliver up the same when lawfully required, or has the same in his possession, except for lawful cause, the proof of which shall lie upon him, is liable on summary conviction to a fine of twenty dollars. ^ The expression " Admiralty " means the Lord High Admiral of the United KinKdom, or the Commissioners for executing the office of Lord High Admiral ; K.S.C o. 171, s. 1 (a.) ; 32 and 33 Vict. c. 57, s. 3. 2 Art. 17. 3R. S. C. 0.171,8.3; 32 & 33 Vict, c 57 s. 5. < R. S. C c. 41 8. 106. THE CRIMINAL LAW. 369 Article 472. unlawful disposition of arms, etc., of the north- west mounted police force. ' Every one who unlawfully disposes of, receives, buys c sells, or has in his possession without lawful cause, or refuses to deliver up when thereunto lawfully required, any horse, vehicle, harness, arms, accoutrements, clothing or other thing used for the purposes of the North-West Mounted Police Force, is liable to a penalty of double the value thereof and to a further penalty not exceeding twenty-five dollars, and, in default of payment forth- with, to imprisonment for any term not exceeding three months. - Article 4*73. conspiracy to defraud or extort. [Every one commits the misdemeanor of conspiracy] and is liable to seven years' imprisonment ■* [who agrees with any other person or persons to do any act with intent to defraud the public, or any particular person, or class of persons, or to extort from any person any money or goods. Such a conspiracy may be criminal, although the act agreed upon is not in itself a crime. lUmtrutions. ' The following are instances of conspiracies with intent to defraud : — * A conspiracy to defraud the public by a mock auction. "^ A conspiracy to raise the price of the funds by false rumors. " A conspiracy to defraud the public by issuing bills in the name of a fictitious bank. 'R. S. C. 0.46 s. 23. ' 8. D. Art. 33o. The ofifenoe is completed by the combination and agreement, although no step is taken in execution of the conspiracy ; Thayer v. R.5L. N. 162. 'Art. 17. * [R. V. Leieit, 11 Cox. C. C. 404. ' if. V. DeBercnger. 3 M. & S. 67. » R. y. ffeven, 2 East P. C. 868.] 2b 370 A DIGEST OF ' [A conspiracy to indiu'o a person to buy horses by falsely alleging that tiiey were the projMsrty of a private person and not of a liorse dealer. - A conspiracy to indncio a man to tiilie a lower price than that for which he had sold a horse, by representing tiiat it had been discovered to bo unsound and re-sold for loss than had been given for it. '' A conspiracy to defraud a partner by false accounts, tho fraud not being in itself criminal when it was committed. * A conspiracy to defraud generally by getting a settling day for shares of a new company. ■' Article 474. pretendina to exercise witchcraft. " Every one commits a misdemoanor who pretends to exercise or use any kind of witchcraft, sorcery, enchant- ment, or conjuration, or undertakes to tell fortunes, or pretends from his skill or knowledge in any occult or crafty science to discover where or in what manner any goods or chattels supposed to have been stolen or lost may be found. ^ Article 475. cheating. " Every one commits the misdemeanor called cheating, who fraudulently obtains the property of another by any deceitful practice not amounting to felony, with practice is of such a nature that it directly affects, or may directly affect, the public at large. But it is not cheating within HR'V.Kenrivk,5Q.B. 49. ^ Cnrlisle'n Cate, Dear. 337. . ; 3i?.v. Warburton, L. R. IC. C. R. 274. < 7?. V. Atpinall, L- R. 1 Q. B. D. 730.] "^S.D. Art. 337. ° [9 Geo. 2, c. 5, s. 4. Would it be a good defence to an indiotment for this offence to prove that the defendant not only " protended," but actually practised witchcraft ? As to witchcraft, see 2 Hist- Cr. Law, 430-6.] I have left this Article in the text although it is doubtful whether or not the Act on which it is founded would be held to apply to Canada. 'S.D. Art. 338. 8ByR. S. C. c. 173,8. 26 ( Art- 17) every one who is convicted of fraud, cheating or eooepiraoy is liable, if no special punishment is provided by statute, to seven years' imprisonment. See Tasch. Or. Stat. Law, (2nd ed.) 632-638. THE CRIMINAL LAW. 371 [the meaning of this Article to deceive any person in any contract or private dealiuj^ by lies unaccompanied by such practices as aforesaid. Tlhi-<>lraHonit. (1.) The following are instances of clieating : — ' Selling by a false weight or measure even to a single {)er8on. ■^ Selling clothing with the alnager's seal forged uj)on it. •'.Soiling a picture by means of an imitation of the name of a well- known artist inscribed upon it. ' Maiming oneself in order to have a pretext for begging. ■' Selling unwholesome bread ns if it were wholesome. (2.) The following cases are instances of frauds not amounting to cheating :— " Delivering short weight of bread, no false weights or tokens being used. " Receiving barley to grind and delivering a mixture of oat and barley meal. " Selling as a Winchester bushel a sack of corn which is not a Win- chester bushel, but greatly deficient. " Article 4*76. concealing treasure trove. '" Every one commits a misdemeanor who conceals from the knowledge of our Lady the Queen the finding of any treasure, that is to say, of any gold or silver in coin, plate or bullion, hidden in ancient times, and in which no person can shew any property. It is im- material whether the offender found such treasure him- self or received it from a person who found it, but was ignorant of its nature.] '[W- V. yb«nff,3T. R. 104. 2 2Rug3. Cr. 516. ^R.Y. Clost, D. &B. 460. M Hawk. P. C. c. 15 ; 2 Russ. Or- 515. '2East.P. C.822; ^. v. Dixon,3M. &S.11. " if . V. Eaghton, Dear. 376. 'if. V. HayneaATA- & S. 214. ' Pincknev's Case, 2 Ea^t, P. C. 818.] »S. D. Art. 342. '" [3rd Inst. 132, and see R. v. Thomat, L. & C- 313 ] 2b2 312 A DIGEST OF CHAPTER XL. ' hrauds by agents, trustees, and officers of co. vp a niks— false accounting. -Article 477. misappropriation by bankers, merchants, etc. Every banker, merchant, broker, attorney or other agent ' is guilty of a misdemeanor and liable to seven years' imprisonment, who (a.) ' having been entrusted, either solely or jointly with any other person, with any money or security for the payment of money, with any direction in writing '' to apply, pay or deliver such money or security, or any part thereof respectively, or the proceeds or any part of the proceeds of such security, for any purpose, or to any person specified in such direction, in violation of good faith and contrary to the terms of such direction, in any- wise converts to his own use or benefit, or the use or benefit of any person other than the person by whom he has been so entrusted, such money, security or proceeds, or any part thereof respectively ; or * (b.) having been entrusted, either solely or jointly with ' 3 Hist. C. Law 150-16a "- S. D. Art. 3«. " [i.e., other agent like a banker, merchant, broker, or attorney. Tlie section is aimed at those classes who carry on the occupations or similar oooupations to those mentioned in the section, and not at those who carry on no such occupation, but who may happen from time to time to undertake some fiduciary position whether for money or otherwise ; Jl. V. Portugal, L. II. 16 Q. B- D, 487, 491.] li. v. Hynes, 13 U. C. Q. B., 194 ; E. v. Ami- « C. o. 120, s. 81. ^ [As to what amounts to a direction in writing, see R. v- Christian, L.R- 2 C. C R. 94.] See, also, li. v. Cronmire, 16 Cox C. C. 42. THE CRIMINAL LAW. 373 any othor person, with any chattel or valuable security, or any power of attorney for the sale or transfer of any share or interest in any public stock or fund, whether of the United Kingdom or any part thereof, or of Canada, or of any Province thereof, or of any British colony or possession, or of any foreign state, or in any stock or fund of any body corporate, company or society, for safe custody or for any special purpose, without any authority to sell, negotiate, transfer or pledge, in violation of good faith, and contrary to the object or purpose for which such chattel, security or power of attorney has been entrusted to him, sells, negotiates, transfers, pledges, or in any manner converts to his own use or benefit, or the use or benefit of any person other than the person by whom he has been so entrusted, such chattel or security, or the proceeds of the same, or any part thereof, or the share or interest in the stock or fund to which such power of attorney relates, or any part thereof ; or (c.) ' having been entrusted, either solely or jointly with any other person, with the property of any other person for safe custody,— with intent to defraud, sells, negotiates, transfers, pledges or in any other method converts or appropriates the same, or part thereof, to or for his own use or benefit, or the use or benefit of any person other than the person by whom he was so entrusted. - Nothing in this Article afiects any trustee in or under any instrument whatsoever, or any mortgagee of any pro- perty, real or personal, in respect to any act done by such trustee or mortgagee in relation to the property comprised in or affected by any such trust or mortgage ; nor restrains any banker, merchant, broker, attorney or other agent from receiving any money due or to become actually due and payable upon or by virtue of any valuable security, according to the tenor and effect thereof ; nor from selling, transferring, or otherwise disposing of any securities or 'R. S. C. c. 164, s. 61 : 24 k 25 Vict. o. 96, s. 76. • R. S. C. c. 161, 8. 60 (2) ; 24 & 25 Vict. c. 96, s. 75. 8T4 A DIOJ'JST OF effects in his possession, upon whi(^h he has any lien, chiim or demand, entitling him by hiw so to do, unless such pale, transfer or other disposal exteiuls to a j^reater number or part of su(^h seeuriti«'s or effects than are requisite for satisfying such lien, claim or demand. ' [Clause (6.) does not extend to an agent who disposes of a chattel, valuable security, or power of attorney according to unwritten instructions given to him, and subsequently misappropriates the pro- ceeds thereof, unless (possibly) he is proved to have had an intention to misappropriate the proci^eds at the time when he disposed of the chattel, valuable security, or power of attorney ; nor ' to an attorney who bi'ing entrusted with money to lay out on mortgage for his client misappropriates it, unless it appears specifically that he was to keep it with hira for safe custody until it could be so invested.] •'Article 4^8. misappropriatic.n under tower of attorney. ^ Every one is guilty of a misdemeanor, and liable to seven years' imprisonment, who, being entrusted, either solely or jointly with any other person, with any power of attorney '' for the sale or transfer of any property, fraudulently sells or transfers, or otherwise converts the same or any part thereof to his own use or benefit, or the use or benefit of any person other than the person by whom he was so intrusted. ' [This sceins to be the effect of /;. v. Tatlork, L. R. 2 Q. B. D. 157, and R. v. Cooper- L. R. 2. C. C. R. 123. In R. v. Tatloek the judges were not altogether unanimous. 2 R. V. Newnidn, L. R. 8 Q. B D. 706 ; R. v. Cooper, L. R. 2 C. C R. 12.S.] 3S.D. Art. 3«. *K.S.C. 0.161,8. 62; 24&25Vio';. o. 93,8.77. * Power of attorney means a written power of attorney ; R. v. Ckouinard, 4 Q. L. R. 220. THE cm MI SAL LAW. 376 ' Aktiole 471). misappuopuiation by kacitous oil aoents. - Every liu^tor, or afj^out oiitnistrd, cither solely or jointly with any other perKoii, for tht-s purpose oi' Kale or other- wise, with the poHsessiou ' ol' any floods, or oi" any document of title to goods, is guilty of a misdemeanor and liable to seven years' imprisonment who, contrary to or without the authority ol" his principal in that behalf, for his own use or benefit, or the use or benefit of any person other than the i)erson by whom he was so entrust- ed, and in violation of good faith, (a.) makes any consignment, deposit, transfer or delivery of any goods or document of title so entrusted to him as in this Article before mentioned, as and by way of a pledge,' lieu or security for any money or valuable security borrowed or received by such factor or agent at or befoul the time of making such consignment, deposit, transfer or delivery, or intended to be thereafter borrowed or received; (6.) accepts any advance ^ of any money or valuable 'S. D. Art. 347. - R. S. C. c. 161. a. fi3 ; 24 k 25 Vict, c i»P, s. 78. •' Any factor or ii.Kont intrusted, na mentioned in the text, and posseaaedoi any such do- cument of title, whether derived iuimcdiiitoly from tlie owner of auch goods or obtained by ronson of such factor or agent having been entrusted with the posaesaion of the goods, or of any other document of title thereto, is deemed to have been entruated with the pos- session of the goods represented by such document of title. A factor or agent is deemed to bo posscased of aueh goods or document, whether the same are in his actual custody or held by any other person subject to his control, or for him, or on his behalf. A factor or agent in possession of auoh goods or document is taken to have been entruated therewith by the owner thereof unless the contrary is shown in evidence ; R. 8. C. c. 164, 8. 64 ; 24 it 25 Vict- o. 96. s. 79. For definition of agent and what is deemed possession under the Bank Act, see R S- C. O.120,s 53. ■* Every contract pledging or giving a lien upon such document of title is deemed to be a pledge of and lien upon the goods to whiuh the same relates. '''Any piiyniunt made, whether by money or bill of exchange, or other negotiable security, is deemed to be an advance ; R, S. C. c. 164,8. 64 ; 2\ & 25 Vict, o- P6, s. 79. [ Where any loan or advance is bond. fide made to any such fa iter or agent on the faith of any contract or agreement in writing, to consign, deposit, ransfer, or deliver such gooda or documents of title, and such goods or documents of title arc actually received 376 A D /(,'/•: ST OF 8e(!urity oil t ho faith of uiiy contrui^t or agr»»om««nt' to conHign, deposit, truusfur or deliver uuy such goodu or document of title. No Huch fiu'tor or aj^cnit shall be liable to any prosecu- tion for con8if?nin«?, depoHiting, traUHferring or delivering any such goods or documentN of title, if the same are not made a security for or subject to th(5 payment of any great(ir sum of mon»^y i an th«^ amount which, at the time of such consignment, dc^posit, transfer or delivery, was justly due and owing to such agent from his prin- cipal, together with the amount of any bill of exchange drawn by or on account of such principal and accepted by such factor or agent. '^ ARTICIiE 480. ASfilSTINQ IN HUCH MISAPPKOmiATION. ' Every one is guilty of a misdemeanor, and liable to seven years' imprisonment, who, knowingly and wilfully, acts and assists in making any such consignment, deposit, transfer or delivery, or in accepting or procuring such advance as aforesaid. ' Article 481. fraudulent trustees. " Every trustee " of any property for the use or benefit, [by the purson maki vhic)i is taken from part of s. 79] R. S. 0- 0. 164, B. 64 [is not very obvious, nor do I understnnd what particular period is referred to by tho concluding words.] ^ Any contract or tigreeracnt, whether made direct with such factor or agent, or with any clerk or otlier person on his buhulf , is deemed to be a contract or agreement with such factor or agent ; s^ 79 (R. S. 0- c 164, s. 64). Of course it is.] " S. D. Art. 318. «R. S. C. 0. 164, s. 63 (2); 24 & 25 Vict. c. 96, s. 78. «S.-D. Art. 349. OR.S.O. c. 164,8. 65 : 24 & 25 Vict. 0. 96, s. 80; li. v. Bnmett, 25 C.L. J. m. For definition of " trustee " see ante page 6. THE OlilMlNAb LAW. 877 either in whole or in part, of sonio other person, or for any pul)li«* or chiiritubli' purpose, is guilty of a misde- meanor, and lia))le to seven years' imprisonim^ut, who, with intent to defraud, «onvertH or appropriates the same, or any part thereol", to or for his own use or benefit, or the use or benelit of any p-rson other than such other person, or for any purpose other than such publit; or charitabUi purpose, or otherwise disposes of or destroys 8U«'h property, or any part tliereof. [A public puri)ose is such a purpose as w^ould ])e recog- nized as public! in a court of law, and not a purpose the exe; or prosecution for any offence men- tioned in this Article shall be comii,enced without the sanction of the Attorney-General or {Solicitor-General for the Province in which the same is to be instituted. When any civil proceedinj^ has been taken against any person to whom the provisions of this Article apply, no person who has taken such civil proceeding shall com- mence any prosecution under this Article without the sanction of the court or judge before whom such civil proceeding has been had or is pending. lUuttralioyif. [(I.) ' Tlio trustecH of a savings bank, which has printed rules one of which directs the manner in which the funds are to be invested, are trustees on an express trust created by an instrument in writing, but not for a pubhc purpose. (2.) ' Tlie purposes of an institution exemx^ted from liability to the poor-rate would be public. -Article 482. frauds by directors, members and officers of incor- porated companies. ^ Every director, member, manager or officer of any » []{. V. FlHcher, L. k 0. 180.] » S. D. Art. 330. ■'Ill tho Act of tho Uniti'd Kingdom the word "puWic" occurs before the words " officer " and " cuinpany ;" the word " manager" docs not occur in section 81 (a.) ; nor the word " member " in sections 82 and 84 (6.) and W) 378 A DIGEST OF body corporate or company is guilty of a misdemeanor, and liable to seven years' imprisonment, who, (a.) ' fraudulently takes or applies, for his own use or benefit, or for any use or purpose other than the use or purpose of such body corporate or company, any of the property of such body corporate or company ; (b.) ' receives or possesses himself of any of the pro- perty of such body corporate or company, otherwise than in payment of a just debt or demand, and, with intent to delraud, omits to make or to cause or direct to be made a full and true entry thereof in the books and accounts of such body corporate or company ; (c.) ^ with intent to defraud, destroys, alters, mutilates or falsifies any book, paper, writing or valuable security belonging to the body corporate or company, or makes or concurs in the making of any false entry, or omits or concurs in omitting any material particular in any book of account or document ; or {d.) ' makes, circulates or publishes, or concurs in making, circulating or publishing any written statement or account which he knows to be false in any material particular, with intent to deceive or defraud any mem- ber, shareholder or creditor of such body corporate or company, or with intent to induce any person to become a shareholder or partner therein, or to entrust or advance any property to such body corporate or company, or to enter into any security for the benefit thereof. Article 483. frauds by officers and members of unincorporated BODIES. '' Every officer or member of any unincorporated body or 'R.S C 0. 164, s 66; 2tcfe25Vict. c. 96,8. 81. -R.S.C. c. 164,8. 67; 24 .t 2^ Vict. o.96,s. 82 ; " as such director, etc." ■■'R.S.C.c 164,8.68; 24 it 25 Vict. o. 96, 8. 83. 4RS.C. c. 164,8.69; 24 At 25 Vict. c. 96, s. 84. * R.S.C c. 164,8. 70. As to officers or members fraudulently obtaining possession of property or bonks of a trade union see R.S.C c. 131, s. 12. THE CRIMINAL LAW. 379 society, associated togethor for any lawful purpose, is guilty of a misdemeanor and liable to three years' im- prisonment, who fraudulently takes or applies to his own use or benefit, or for any use or purpose other than the use or purpose of such body or society, the whole or any portion of the funds, moneys or other property of the society, and continues to withhold such property after due demand has been made for the restoration and pay- ment of the same by some one or more of the members or officers duly appointed by and on behalf of the body or society. 'Article 484. defence in certain cases. ^ No one is liable to be convicted of any of the mis- demeanors mentioned in Articles 477-483 (both inclusive) by any evidence whatsoever, in respect of any act done by him, if, at any time previously to his being charged with such offence, he has first ' disclosed such act on oath, in consequence of any compulsory process of any court of law or equity, in any action, suit or proceeding bond fide instituted by any party aggrieved, or if he has first dis- closed the same in any compulsory examination or deposi- tion before any court, upon the hearing of any matter in bankruptcy or insolvency. is.D. Art.?5i. ■'--', ^■- -V: y-,.^- ;' 2R. S. C. c. Ifi4, 9. 71 ; 24 k 25 Vict- e. 96, s. 85. •'lOn this word, which wiis not in tlie curlier Act, 5 & 6 Vict. c. 89, s. f.sce R. \.l Illustration (12). '" '^ « Illustration (13). ' Illustration (14). 8 Illustrations (15)-(17).] And see notes to Art. 498 (c) and (/.) 2c2 388 -1 I > Id EST OF ' [Tho tact that a document is mado to rcsoml)!*! that which it purports to be aud is not, is ovidoncc lor tho oonsidcratioii ot'tho Jury ol" an intent to del'raud, but is notessential to the makini*" oi'a false document. ^ Provided that in cases in which the Ibrgcry of any particular instrument is made a specific olFence by any statute, the false document must have such a resemblance to the document which it is intended to ri'semble as to be likely to deceive a common person. Illuslrations, (1.) ■' A ronvevH land to B in foo. Aftorwurds A and C draw up and exeonto u deed purporting; to he oi' earlier date than tho fonvoyance to H, by whidi the same land i)urport8 to bo let to C for a term of 99!) years. The second doed is a faho document, tliouj,')! executed by A and ( '. (2.) ' A ohtaiuH a blanli acceptance from \i, vvitli authority to till it up for any amount not exceeding; C2(H). A fills it up for £500. This is a false document. {;{.) 'A persuades his servant, William Wilkinson, to write his name acros.s a stamped paper, so as to appear to bo the name of tlio accejrtor of a bill of exchanj^e. A then Alls up the bill and addresses it to Mr. AVilliam Wilkinson, Halifax, so as to make the bill appear as if it had been drawn upon and accepted by a diilerent William Wilkinson. Tliis is a false document. (4.) " A gets B to sign a receipt, and afterwards makes additions to it, so as to make it appear that a larger sum was paid to B than had actually been paid. The altered receipt is a false dotniment. (5.) ' A, employed to draw up B'a will, inserts 'n it legacies out of his own head. The will is a false document. (6. ) ** Sheppard signs a draft in the name of H. Turner, Junior, of Noah'rf Row, Hampton Court, tliere being no such place or person. The note is a false document. • [Illustration (18). - Illustration (19). 3 Ji. V. Jtiiaon, L. R. 1 C. C K 2C'0. and in 1 Hawk. P. C. 264. * R- V. Hart, 1 Moody 486 ; 7 C. & P. 652. In this case the words " £2U0 " were written in tho oorner of the blank acceptance, and erased. Littledale, J., however, told tho jury that the filling up the acceptance for a greater amount than that which was authorized was forgery ; R. v. Bateman, 2 Russ. Or- 715. 1 Cox, C-C. 188, ia to the same effect. ^'R. V. Blenkinsop.l Den. CO. 277; 2Rus9. Cr. 724. *> R. V. Oriffltha, D. & B . 518. It is not easy to see why this case was reserved. n Hawk. P.O. 264. ^Sheppard'» Case, 1 Lea. 226.] Ex parte Cadbu 26 N.B.R. 462. THE CHIMIN AL LAW. ;]89 [(7.) ' ThotmisUrowii uutliori/oH Ht()8i(j;n h prom Ihhc try note in tlionumo of Tlioiniw Ilrown, in order tliat il Ujij^lit \w iiHod rh t!io note of u ditluront anil oDlireJy (IctltjouH Tlionms Mrown. 'i'liis is a fivlso docnmpnt, whetlior J5 knmv or not of tiio umm for wliicli llio noto wiiH intondoil. (8.) -'B H)JtreoH to^ive A time for tlio payuiontof a dobt, if A will ^t^t hiu motlierin-law, ('. Waters (wIkwo Christian nanio i.s niiknown to H), to execute n promissory note. A j^ets his wifo to si^n the noto in her maiden name, "A. Waters," and produiies the note to \\ as the note of his mother- in-law. This is a false document (!).) ' A, personating the Hon. A. A. Hope, the brother of the Karl of HojKUown, draws a bill of exchanm* in tiu» mime of A. A. IIojh) on a jK^r- 8on to whom he was known by that name, and who would have paid it if A had really been A. A. Ho|)e, the brother of X\w Earl of Hojx-town. The bill is n false document, though the person on whom it watt drawn knew and jJtave (credit to the iHjrson who drew it. (10) 'A t^ols B to make his mark to a deed by reprosentinn it to be a recitiisition to a person to stand for a seat in Parliament. A does not make a false document. (11.) 'A reads B a document by which an action isnj^rood to be settled fori;!). B agrees to sign it, and pays the t\). A, before B signs it, allora the y to 1-'. A does not niake a false document. (12.) "In drawing up B's will, A omits a legacy to C. A does not make a false document. (1:5.) " In drawing up B's will, A omits a devise of an estate for life to C, whereby the will o|)erates to give D an estate in possession, and not in remainder, on B's death. A makes a false document. (14.) " A, per.sonating B, draws a cheiiuo in his assumed name of B, on '[/!■• V. />(((•/,•<-(, 2 Lea. 775. "]{. V. Malwnvy, 6 Cox, C.C. 487; 2 Russ- Cr. 631-5. '/^ V. Ifd'H'iild, 2 Iluss. Cr 040. Tliis ia tlio well known case of the man who mar- ried the girl known as the Ueiiuty of Ikittorniere. < 11- V. Collina, 2 M. & R. 4(il. But see Mr. Greaves' remarks (2 Russ. Cr. (4 od.) 718, note ) .Mr. Greaves suggests, I think rightly, tiiat this was a case of forgery by an innocent agent, U. 'i^ V. VhtiiiUy of for^'nry. (Ifl.) -' A, with iiit(M)t to (ixfraiiii, couiitnrfcntH a l)ill or«x(>huii).'o on nn- HtuMiiMMl paper, a Htaiiip h(un^ uoreHHary totho valif a hill of oxchango, it must ho shown that tho dociiiiiout for)^'(>d Ih a hill of ox<-han^'e. (18.) ♦ A Ih (;har^r(■d with f«tr^;inK a Hank of Knuland note If thi< rohoni- blanco of tho for^fcd and th(» real ii'>tt( is Hiilliciont to Knn, 1 Leach, CC. 59. 1 Mwv/ii/'a rrs tlic unto Crnni two to tiirre nioiitlis and liiiH itdiHcoiiiitiul lit n luiiik. A fnru^H tlio noto. ('j;t.) ' A, with int(M)t til (lofmiiil, writnH out a tolo^rapli iiiohha^o piir- pu Hont by H, at Ilainiltoii, to (', at \Voy a bank IVir A. A coinniitH fornory. (24) ■' Tlio altoratido, with intent to defraud, of a $2.00 Doniitdon not^i, by atidini,' a eiplmr al't«r Iho ll>{uro l', whoraver tliat occurs iu tho nuir^;in of the note, is lor;;ory. (25.) ' A beiuK oniployed to write the will of 15, an iHit((rato|»er8on, with intent to >;et H'h pro|H»rty, \vrit(»M a will cdiitrary tn inHtructions and read8 it to U inact'urattily, thuruliy inducing li to uxucute it. A coinniitfl forjrtiry. The caxct on which the JhlUmimj Illmtrationit utr foundtil arow under the ExtnulHmn Trenlij of 184U with the Unittd States. (20.) ' A, who lian i» |)owor of attorney from II, with intent to defiaud, roncoals that fact, and, representiu'.' hiniHidf to lie B, oxecutoH a deed in JVs name. A commits Inr^jery within tho'l'reaty. (27.) ' A, falwdy reprcHentin^; that he Iiuh authority to receive a war- rant for money in favor of li, sinns IVs name to tho receipt tlierefor. Tin's iH foruery, acoordintr to the law of Ptumsylvania, wlioro the oiTenct* ic comtnitted. A commits forgery within the Trejity. (28.) " A, a clerk in the otlico of the Comptroller of tlie city of Newark, U.S.A., whose duty it is to make in the olliciul books of such Comptroller proi)er entries of moneys received for taxes, havin^^ received a sum of money for taxes, enters in such boolvs tiie correct amount, and then erasint; thotnie lij^ures inserts a loss sun , with intent to benefit liimself by the abstraction of the difference between the two amounts, and to deceive the Comptroller and the municipality. A commitH fori-'cry within the Treaty. (25).) ' A, the collector of a county, after the same has been audited and with intent to cover up a defalcation, makes false entries in a liook of account, the property of the county, kept by him as such collector, of ' /;. V. Stewart, £5 U. C. C. P. 440. ■^J{.v.B(iil,7 0. R. 228. "^a/iv. Cn»(j/, James 879. * In re Gould, 20 U. C. C. P. 15J. •' Inrt' l'h{pj)M,l 0. 11.580. By Ilagnrty, C. J., and Armour, J. (Ciimoron, J., dis- aenting ; and on appeal (8 Ont. A. R 77), by Spragge, C. J. 0., and Patterson, J. A , (Burton, J. A., and Ferguson, J, dissenting). '' In re Hn/l, 30. R. 331. (By Boyd, 0. Proudfoot and Ferguson, JJ., and on appeal (8 Ont. A. R. 31) by Spraggo, C. J. 0., and Gait, J. (Burton and Patterson, JJ. A., dis- senting). ' In re Jitrranl, i 0. R. 265. 392 A DIGL r OF moneys received and paid out by him, and changes the additions to correspond. A commits forgery within tlie Treaty. (30.) ' The niakint; of faUe (!oin is not forgery. (31.) '^ To fill up without authority and for a fraudulent purpose, drafts signed in blank is forgery within the Treaty. (32.) •' A, with intent to conceal a fraud previously committed, alters a statement of account such as is received by a bank from other banks having business connections with it, and which contains an acknowledg- ment of the receipt of money to be accounted for. A commits forgery within the Treaty. (33.) ' A, a clerk in a bank, makes false entries in the bank books under his control to enable him to obtain the money of the bank improperly. A does not commit forgery within the Treaty. •''Article 491. " DOCUMENT." [The word document in Articles 489 and 490 does not include trade-marks or other signs, though they may be written or printed. Illustrations. (1.) '' A paints a picture, and intending to represent that it was painted by an eminent artist, writes that artist's name in the corner. This may be a cheat, but is not forgery, (2.) ' A prints a number of wrappers imitating advertisements in which egg powders were wrapped for sale by B their maker. He incloses spurious egg powders in the wrappers, and sells them. This is not forgery, though it is obtaining money by false pretences.] 1 In re Smith, 4 Ont. P. R. 215. 2 In re Hul-c, 15 R. L. 92, 99. 8 E.r parte Dihatin, 4 M. L. R. 145 ; 32 L. C. J. 281 ; 16 R. L. 612. * R. V. Blacl-Htone, 4 Man. L. K. 296 ; In re John C. Eno, 10 Q. L. R. 194. See also Ex parte Lamiiande , 10 L. C. J. 280, which came up under the treaty with France. 6 S. D. Art. 357. « [R. V. Closi, D. & B. 460. ' R. V. Smith, D. & B. 566. It would seom as if in this case the clement wanting to complete the otrence was the intent to defraud by means of the document, rather than the absence of a document capable of being forged ; the offence lay in selling spuiious as real powders. The wrappers without the powders could have no effect whatever. The essence of a forgery is, that the document itself should be made the instrument of fraud.] THE CRIMINAL LAW. 393 ' OHArTER XLIII. PUNISHMENT OF PARTICULAR FORGERIES, OFFENCES RESEMBLING FORGERY, AND ACTS PREPARATORY TO THE COMMISSION OF FORGERY. ■^ AllTICLE 492. COUNTERFEITINLI PUBLIC SEALS, AND FORGING STATE DOCUMENTS. •'' Every one is guilty of felony and liable to imprison- ment for life, who (ft.) forges or counterfeits, or utters, knowing the same to be forged or counterfeited, the Grreat Seal of the United Kingdom, or the Great Seal of Canada, or of any Province of Canada,' or of any one of Her Majesty's colonies or possessions, Her Ma-jesty's Privy Seal, any Privy Signet of Her Majesty, Her Majesty's Royal Sign Manual, or any of Her M jesty's seals, appointed by the twenty-fourth article of ihe union between England and Scotland to be kept, used and continued in Scotland, the Grreat Seal of Ireland, '^r the Privy Seal of Ireland, or the Privy Seal or Seal at Arms of the Governor-General of Canada, ' or of the Lieutenant-Governor of any Province ' The provisions constituting this chnpter could be further condensed, as maybe seen by reference to the corresponding chapter in Stephens' Digest. I thought it well, how- over, on the whole, to adhere closely to the language of the statute, although that in- volved considerable superfluous matter, and the definition of similar oflences in a somewhat bewildering variety of terms. The whole statute could, with advantage, bo re-drafted . -S.D. Art. 359 (a.) •'R. S. C. c. 165,8. 4;24&25Viot.o.98,s. 1. ■* The expression " Province of Can.vda " includes the Into Province of Canada and the late Provinces of Upper Canada and i.ower Canada, aluo the Provinces of Nova Scotia, New Brunswick, Prince Edward Islaiii and Briti-^h Columbiii, as they respectively existed before they became part of Canada and also the several Provinces, Territories and Districts now or hereafter forming part 0.'^ Canada ; R. S- C- c. 105, s.l See, also, R.S.C.c 1,8.7(13). ' By the 44th Section of TAe Militia Act, tho Giovernor-General is authorized to r.ffix his signature to any commission issued under that Act u> means of a stamp. The forging or counterfeiting of any such stamped signature is a felony, punishable in like manner as the forgery of his Privy Seal or Seal at Arras. 394 .4 DIGEST OF of Canada, or of any person who administers, or, at any time, administered the Government of any Province of Canada, or of the Grovernor or Lieutenant-Crovernor of any one of Her Majesty's colonies or possessions ; or {b.) forges or counterfeits the stamp or impression of any of such seals ; or (c.) utters any document or instrument whatsoever, having thereon or affixed thereto the stamp or impression of any such forged or conterfeited seal, knowing the same to be the stamp or impression of such forged or counterfeited seal, or any forged or counterfeited stamp or impression made or apparently intended to resemble the stamp or impression of any of such seals, knowing the same to be forged or counterfeited ; or {d.) forges, or alters, or utters, knowing the same to be forged or altered, any document or instrument having any of the said stamps or impressions thereon, or affixed thereto ; or (e.) ' forges or fraudulently alters any document bear- ing or purporting to bear the signature of the Governor- General of Canada, or ot any deputy of the Governor- General, or of the Lieutenant-Governor of any Province of Canada, or of any person who administers, or, at any time, administered the Government of any Province of Canada ; or (/.) oiFers, utters, disposes of or puts off any forged or fraudulently altered document mentioned in clause (e.), knowing the same to be so forged or altered. -Article 493. forgery and other offences respecting transfers of shares in public funds — claims to crown ^ grants, scrip, etc. Every one is guilty of felony and liable to imprison- 'R.s.c 0.165,8.5. """""^nrrr - = S. D. Arts. 35ii (i ),(/.), 361 (ff.). 367. THE CRIMINAL LAW. :i95 mout for life in cases {a ), (b.) and (c), and for seven years in cases (d.) and (e.), who, (a.) ' with intent to defraud, forges or alters, or offers, utters, dispose of or puts off, knowing the same to be forged or altered, (i.) any transfer of any share or interest of or in any stock, annuity or other public fund which now is or hereafter may be transferable in any of the books ol the Dominion of Canada, or of any Province of Canada, or of any bank at which the same is transferable, or of or in the capital stock of any body corporate, company or society, which now is or hereafter may be established by charter, or by, under or by virtue of any Act of Parlia- ment of the United Kingdom or of Canada, or by any Act of the Legislature of any Province of Canada , or (ii.) any power of attorney or other authority to transfer any share or interest of or in any such stock, annuity, public fund or capital stock, or any claim for a grant of land from the crow^n in Canada, or for any scrip or other payment or allowance in lieu of any such grant of land, or to receive any dividend or money payable in respect of any such share or interest ; or (6.) ^ with intent to defraud, demands or endeavors to have any such share or interest transferred, or to receive any dividend or money payable in respect thereof, or any such grant of land, or scrip or payment or allowance in lieu thereof, by virtue of any such forged or altered power of attorney or other authority, knowing the same to be forged or altered ; or (c.) •* falsely and deceitfully personates any owner of any such share or interest or any such claim, scrip, pay- ment or allowance, and thereby transfers or endeavors to transfer any share or interest belonging to any such owner, or thereby receives or endeavors to receive any ' R. S. C. 0. 165, s. 8 ; 24 A 25 Vict, c 98, s. 2. ■ --f-^": - As to demanding other property on forgod instruments, see Art. 512. 3 R. S. C. c. 165, s. 9 ; 24 & 25 Vict. c. 98, s. 3. 39G A DIGEST OF money due to any such owner, or to obtain any such grant of land, or such scrip or allowance in lieu thereof as aforesaid, as if such oifender wt're the true and lawful owner ; or (d.) ' forges any name, handwriting or signature pur- porting to be the name, handwriting or signature of a witness attesting the execution of any power of attorney or other authority to transfer any share or interest of or in any such stock, annuity, public fund or capital stock, or grant of land or scrip or allowance in lieu thereof, or to receive any dividend or money payable in respect of any such share or interest ; or (e.) offers, utters, disposes of or puts off any such power of attorney or other authority, with any such forged name, handwriting or signature thereon, knowing the same to be forged. Article 494. making false entries in books of public funds. - Every one is guilty of felony and liable to imprison- , ment for life, who, with intent to defraud does any of the following things in respect of any of the books of account kept by the Government of Canada, or of any Province of Canada, or of any bank at which any of the books of account of the Go\rernment of Canada or of any Province of Canada are kept, wherein are entered or kept the accounts of the owners of any stock, annuities or other public funds, which now are or hereafter may be trans- ferable in such books, that is to say : — (a.) wilfully makes any false entry therein ; , . (b.) wilfully alters any word or figure therein ; (c.) in any manner wilfully falsifies any of the accounts of any of such owners in any of such books ; or {d.) wilfully makes any transfer of any share or interest of or in any such stock, annuity or other public fund in ' R. S. C c. 165, s. 10 ; 24 & 25 Vict. c. 98, ?. 4. - —- 2 R. S. C. c. 165, 9. 11 ; 24 & 25 Vict. c. 98, s. 5. THE CRIMINAL LAW. 3'J7 the name of auy person who is not the true and lawl'ul owner thereof. ' Article 495. making false dividend warrants. -Every clerk, officer or servant of, or person employed or entrusted by, the Government of Canada, or of any Province of Canada, or by ony bank in which any of siich books and accounts as are mentioned in the Arti- cle next preceding is kept, is guilty of felony and liable to seveD years' imprisonment, who, knowingly and with intent to defraud, makes out or delivers any dividend warrant, or warrant for payment of any annuity, inter- est or money payable as aforesaid, for a greater or less amount than the person on whose behalf such warrant is made out is entitled to. •'Article 496. forgery of entries in registers of birth, baptisms, marriages, deaths, burials and other offences respecting such registers. ' Every one is guilty of felony and liable to imprison- ment for life who does any of the following things in respect of any register of births, ■' baptisms, marriages, deaths or burials, authorized or required to be kept in Canada, or in any Province of Canada, that is to say : (a.) forges or fraudulently alters in any such register any entry relating to any birth, baptism, marriage, death or burial, or any part of any such register, or any certified copy of such register, or of any part thereof ; or 1 S. D. Art. 361 W.) _ :. ..- - -- - «R.S. C.c. 165, 8. 12; 24 & 25 Vict. 0.98,8.6. 8S. D. Art.359W.) _. _ _ _^ _, « B, S. C. 0. 165, g. 43 ; 24 & 25 Vict. c. 98, 8. 36. ""': "' " ' I" As to other registers, see Art. 503. 3!)8 A DIGEST OF (b.) knowingly and unlawl'ully inserts, or causes or permits to be inserted, in any such register, or in any certified copy thereof, any false entr / of any matter re- lating to any birth, baptism, marriage, death or burial ; or (c.) knowingly and unlawfully gives any false certifi- cate relating to any birth, baptism, marriage, death or burial, or certifies any writing to be a copy or extract from any such legister, knowing such writing, or the part of such register whereof such copy or extrac .3 so given, to be false in any material particular; or (d.) forges or counterfeits the seal of or belonging to any registry office or burial board ; or (e.) offers, utters, disposes of or puts off any such regis- ter, entry, certified copy, certificate or seal, knowing the same to be false, forged or altered, or any copy of any entry in any such register, knowing such entry to be false, forged or altered ; or (/.) unlawfully destroys, defaces or injures, or causes or permits to be destroyed, defaced or injured, any such register, or any part of any such register, or any certified copy of any such register, or of any part thereof "Article 49*7. forgery and other offences respecting copies of registers. ' Every one is guilty of felony and liable to imprison- ment for life who does any of the following things in respect of any copy of any register directed or required by law to be transmitted to any registrar or other officer, that is to say : (a.) knowingly and wilfully inserts, or causes or per- - In the statute, instead of " of," the word "or" occurs. There is the same clerical error in 32 and 33 Vict. (D), c. 19 s. 42. from which R. S.C. o. 165, s. 43 is taken. The word " of " is used in the English Act. -. - , .-• S. D. Art. 359 (e.) ' j __ : - ' • R. S. C. c. 166, 8. 44 ; 24 & 25 Viot. c. 98, s. 37. """' — — — — - THE CRIMTNAL LAW. 309 mils to bo iiisorti'd thoreiii, nny I'also entry ol' any matter relating to any ' baptism, marriao-e or burial ; or (b.) ibrires or alters, or oilers, utters, disposes of or puts oir, knowing' the same to be fors^ed or altered, any copy of any such reiiister ; or {().) knowingly or wilfully signs or verifies any copy of any such register, such copy ])('ing false in any part thereof, knowing the same to be false ; or {(l.) unlawfully destroys, defaces or injures, or for any fraudulent purpose, takes from its place of deposit, or conceals, any such copy of any register. - Article 498. follgery of debentures. — government and bank bills and notes, etc. — deeds, bonds, etc. — wills — bills of exchange — orders, receipts. Every one is guilty of felony and liable to imprison- ment for life who, with intent to defraud, forges or alters, or offers, utters, disposes of or puts off, knowing the same to be forged or altered, (a.) ^ any debenture or other security, issued under the authority of any Act of the Parliament of Canada, or of the Legislature of any Province of Canada, or any ex- chequer bill or exchequer bond, or any Dominion or Provincial note, or any endorsement on or assignment of any such debenture, exchequer bill or exchequer bond ' The word birth seems to be wanted here. -S.D. Art. 359(6). =* R. S. C. c. 165, s. 13 ; 24 & 25 Vict. o. 98, s. 8. Every oflSeer charged with the receipt or disbursement of public moneys, every officer of any bank doing business in Canada, and every person acting as or employed by any banker, shall stamp or write in plain letters the word " Counterfeit," " Altered " or " Worthless " upon every counterfeit or fraudulent note issued in the form of a Do- minion or bank note, and intended to circulate as money, which is presented to him at his place of business ; and if such officer or person wrongfully stamps any genuine note- ■ he shall, upon presentation, redeem it at the face value thereof ; 50-51 Vict. o. 47 s. 1. 400 A DICIEST OF or othor .st'curity is.sucd luulcr such authority, or any coupon, ro(ioipt or certificate I'or interest accruinj^ there- on, or any scrip in limi of land ; or (6.) ' any note or bill of exchange of any body cor- porate, company or person carrying on the business of bankers, commonly called a bank note, a bank bill of exchange or bank post bill, or any endorsement on or assignment of any bank note, bank bill o<' exi'hange or bank post bill ; or (c.) " any deed or any bond or writing obligatory, or any assignment at law or in equity of any such bond or writing obligatory, or any name, haiul writing o\ signa- ture purporting to be th(! name, handwriting or signa- ture of a witness attesting the execution of any deed, bond or writing obligatory ; or , {(l.) ' any will, testament, codicil, or testamentary instrument ; or (e.) ' any bill of exchange, or any acceptance, endorse- ment or assignment of any bill of exchange, or any pro- missory note f r the payment of money, or any endorse- ment on or assignment of any such promissory note : or (/.) ' any undertaking, warrant, order, authority or ' R. S. C. c. 165, s. 18 ; 24 k 25 Viet. c. 08, s. 12. - R. S. C. c. Ifio, 8. 26 ; 2 J .t 25 Vict. c. US, s. 20. It is not material thftt any dooument described in clauses (c), (r/), ('■) and (/) is in any Act designiited by some other special name or description (R. S. C. c. 165, p. 47) ; nor in what place the money thereby payable, or scoured is or purports to bo payable, nor in what language the same or any part thereof is expressed, nor whether the same is or is not under seal ; (.«. -19) ; nor in what place any writing or matter the forgintr, .tc, of which is an ofiFonce under R. S. C. c. 165 purports to be made, or has been made, nor in what language the same or any part thereof is ex- pressed ; (s. 48). ' R. S. C. 0. 165, s. 27 ; 21 k. 25 Vict. o. 98, s. 21, < R. S. C. c. 165, 8. 28 ; 24 & 25 Vict. c. 98, s. 22. [A agrees to pay B for goods by his, A's, acceptance, and that he. A, will accept it, and procure its end )rsement by C. B sends a form for aoocptance accordingly, but with no drawer's name. A accepts it and forges C's endorsement to it. He cannot be indicted under this section, but probably might be convicted of a common law forgery : R. v. Hatter, L. R. 7 Q. B. D. 78.] See R. v. McFee, 13 0. R. 8. A forged paper purporting to be a bank note may be a promissory note ; R. v. McDonald, 12 U. C. Q. B. 5i3. 6 R S. C. 0. 165. 8. 29 ; 24 & 25 Viot. o. 98, s. 23. [As to what is not a receipt, see R. v. French, L. R. 1 C. C. R. 217. An I. 0. D may be an undertaking for payment of money ; R. v. Chambers, L. R. 1 C. C. R. 311. A turn- THE ClilMlNAL LAW, 401 request lor the payment of luoin^y or for the delivery or transfer of any jroods or chattels, or of any note, bill or oth(a' security for the paynnuit of money, or for procuring or giving credit, or any endorsement on or assignnuiiit of any such undertaking-, warrant, order, authority or re- ([uest, or any acr<:;ed or aitt^red, any hill of oxchaiiii'e, promissory note, undertakin- or order of any foreij^n prince or state, or of any minister or oIHeer in the service of any for.eian prince or state, or of any body corporate or body of the like nature, constituted or recognized by any fonui»-n prince or state, or of any per- son or company of persons resident in any country not under the dominion of Tier Majesty ; or {b.) ' without lawful authority or excuse, the proof whereof shall lie on him, engraves, or in anywise makes upon any phite whatsoever, or upon any wood, stone or other material, any such doiiumeut or any part thereof ; or (c.) uses or knowingly has in his custody or possession any plate, stone, wood or other material, upon which any such foreign bill, note, undertaking or order, or any pa: . thereof is engraved or made ; or {(l.) knowingly offers, utters, disposes of or puts ofT, or has in his custody or possession any paper upon w^hich any part of any such foreign bill, note, undertaking or order is made or printed. ' ?. D. Art. 362 (/.) ■' R. S. C. c. 165, s. 25 ; 24 & 25 Viot. e. 98. s. 19. ''Ill the clause of the Act that is represented by (6.) the words are " whether the same is or is not, or is or is not intended to bo, under seal." * [Taking a positive impression of an Austrian note on glass by photography is a " malting " within this section ; K. v. lltnaldi, L. & C. 330.] 2 D 2 404 A DIGEST OF ' AllTICLE 502. FORGERY OF NOTARIAL INSTRUMENTS AND DOCUME.TTS RELATING TO THE REGISTRATION OF TITLE, ETC. -Every one is c^uilty of felony and liable to fourteen years' iinprisoument, who (a.) forges or fraudulently alters, or offers, .uters, dis- poses of or puts off, knowing the same to be forged or fraudulently altered, (i.) any notarial act or instrument or copy, purporting to be an authenticated copy thereof or anj proces verbal of a surveyor, or like copy thereof ; or (ii.) any duplicate of any instrument, or any memorial, affidavit, affirmation, entry, certificate, endorsement, docu- ment or writing, made or issued under the provisions of any Act of the Parliament of Canada, or of the Legisla- ture of any Province of Canada, for or relating to the registry of deeds or other instruments or doc^^ments re- specting or concerning the title to or claims upon any real or personal property whatsoever, or forges or coun- terfeits the seal of or belonging to any office for the registry of deeds or other instruments as aforesaid, or any Stamp or impression of any such seal ; or (6.) forges any name, handwriting or signature, pur- porting to be the name, handwriting or signature of any person to any such memorial, affidavit, affirmation, entry, certificate, endorsement, document or writing required or directed to be signed by or by virtue of any such Act ; or (c.) offers, utterb, disposes of or puts off any such mem- orial or other writing, having thereon any such forged stamp or impression of any such seal, or any such forged name, handwriting or signature, knowing the same to be forged. 1 S. D. Art. 3(50 (6.) — ^.-:.-^:,.__.._:^ ---:—:_..__ J 8 R. S. C. c. 166, 8. 38 ; 24 & 25 Viot. c. 98, 8. 31. \^ ' ; ^i! THE CRIMINAL LAW. 405 Article 503. FORGERY OF PUBLIC RIGISTERS OR BOOKS — FALSE COPIES THEREOF. - Every one is guilty of felony, and liable to fourteen years' imprisonment, who forges or lounterfeits or alters any public register or book appointed by law to be made or kept or any entry therein, or wilfully certifies or utters any writing as and for a true copy of such public register or book or of any entry therein, knowing such writing to be counterfeited. ^Article 604. forgery of certain .judicial documents. Every one is guilty of felony, and liable to fourteen years' imprisonment in case («.) and to three years' im- prisonment in case (6.), who, with intent to defraud, forges or alters, or offers, utters, disposes of or puts off, knowing the same to be forged or altered, (a.) ' any certificate, report, entry, endorsement, declar- ation of trust, note, direction, authority, instrument or writing made or purporting or appearing to be made by any judge, commissioner, clerk or other officer of any court in Canada, or the name, handwriting or signature of any such judge, commissioner, clerk or other officer; or (6.) ' any summons, conviction, order or warrant, of any justice of the peace, or any recognizance purporting to have been entered into before any justice of the peace or other officer authorized to take the same, or any examination, deposition, affidavit, affirmation or solemn dec. ration, taken or made before any justice of the peace. ' S. 1). Arts. 360 (c), 361(r/.) - K. S. C. e. 8.7. As to register of births, ifec, see Art. 496. _ ■' R. S. C. c. io5, s. 40 ; 24 & 2.5 Vict. c. 98, s. 33. -— - • -^ < R. S. U. c. 165, ». 39 ; 24 & 25 Vict. 98, a. 32. 406 A DIGEST OF ' Article 505. foraery of other judicial documents and instru- ments admissible in evidence in courts of justice. Every one is guilty of felony and liable to seven years' imprisonment who (a.) - forges the seal of any court of record ; or {b.) forges or fraudulently alters or offers, utters, dis- poses of or puts off, knowing the same to be forged or fraudulently altered, (i.) '* any record, writ, return, panel, process, rule, order, warrant, interrogatory, deposition, affidavit, affirm- ation, recognizance, cognovit actionem, warrant of attorney, bill, petition, process, notice, rule, answer, pleading, interrogatory, report, order or decree, or any original document whatsoever of or belonging to any court of justice, or any document or writing, or any copy of any document or writing, used or intended to be used as evi- dence in any such court ; or (ii.) ' any copy or certificate of any such record ; or (iii.) ' any instrument, whether written or printed, or partly writcen and partly printed, which is made evi- dence by any Act of the Parliament of Canada or of the Legislature of any Province of Canada, and not otherwise specially mentioned in this chapter ; or (f.) " offers, utters, disposes of or puts off any copy or certificate of any record having thereon any false or > S. D. Art. 301. = R. S. C. 0. 165, s, 35 ; 24 k 25 Vict. c. 98 s. 28. The statute is silent as to forging tlio impression of sucli seals. 8 R. S. C. c. 165, s. 34 ; 24 Jk 25 Vict. c. 98, s. 27. [These sections are singularly cunibrous and ill-arranged, besides being intolerably wordy. A somewhat s- mi lar provision as to County Courts occurs in 9 . '> * S. D. Art. 361 ((7.) « R. S. C. e. 165, s. 42 ; 24 & 25 Vict. o. 98, ?. 35. THE CRIMINAL LAW. 409 disposes of or puts ofi' any such a license or certificate, knowing- the same to be forged or franduk^ntly altered. Article 509. forgery of passenger tickets. ' Every one is guilty of felony, and liable to three years' imprisonment, who, with intent to defraud, forges, offers or utters, disi)0ses of or puts off, knowing the same to be forged, any ticket or order for a free or paid passage on any railway or any steam or other vessel. ^ Article 510. OFFENCES respecting CROSSED CHEQUES. •' Every one is guilty of felony, and liable to imprison- ment for life, who (a.) obliterates, adds to, or alters the crossing on any cheque or draft crossed with the liame of a banker or with two tranverse lines with the words " and companv," or any abbreviation thereof ; or [b.) otters, utters, disposes of or puts off any cheque or draft whereon any such obliteration, addition or altera- tion has been made, knowing the same to have been made. ^Article 511. drawing bills, ETC., WITHOUT AUTHORITY. •' Every is guilty of felony, and liable to fourteen years' imprisonment, who, with intent to defraud, (a.) without lawful authority or excuse, draws, makes, signs, accepts or endorses any bill of exchange or promis- ' R. s. c. c. 165, s. S3. ■• ;; .; v.; ■■■;__,v_._..,^_:^:a_,,-l.';„:,:w ::-..;.- -i--- -■ 2S. D. Art.359(c.) ■' R. S. C. c. 165, s. 31 ; 2t & 25 Vict. 0. 98, 8. 25. ' . _L * S. D. Art. 300 (rf.) "~~'~f^''"~, T^ =* R. S. C. c. 165, s. 30 ; 24 & 25 Vict. c. 98, s. 24. 410 .1 Did EST OF sory note, or any undertaking, warrant, order, authority or request for the payment of money, or for the delivery or transfer of goods or chattels, or of any bill, note or other security for money, by procuration or otherwise, for, in the name, or on the account of any other person ; or (6.) offers, utters, disposes of or puts off" any such bill, note, undertaking, warrant, order, authority or request, so drawn, made, signed, accepted or endorsed, by procuration or otherwise, without lawful authority or excuse, know- ing the same to have been so drawn, made, signed, accepted or endorsed. ' Article 512. demanding property upon forged in.strument8. - Every one is guilty of felony, and liable to fourteen years' imprisonment, who, with intent to defraud, de- mands, receives or obtains, or causes or procures to be delivered or paid to any person, or endeavors to receive or obtain, or to cause or procure to be delivered or paid to any person, any chattel, money, security for money, or other property whatsoever, under, upon or by virtue of any forged or altered instrument whatsoever, knowing the same to be forged or altered, or Uiider, upon or by virtue of any probate or letters of administration, know- ing the will, testament, codicil, or testamentary writing on which such probate or letters of administration were obtained to have been forged or altered, or knowing such probate or letters of administration to have been obtained by any false oath, affirmation or affidavit. , IS. D. Art. 360 (e.) ■ . • . - R. S. C. c. 165, s. 45 ; 24 & 25 Vict. c. 98. s. 38. As to demanding transfer of shares in public funds on forged power of attorney, see Art. 493 (6.) THE CJUMIAAL LAW. 411 ' AllTICLE 618. UNLAWFUL POSSESSION OF FORGED BANK NOTES— DC'tM- INION, PROVINCLVL OR BANK NOTE PAPER— INSTRU.MENTS FOR MAKING SUCH PAPER. Every one is guilty of felony, and liable to Iburteen years' imprisonmont, who, without lawful authority or excuse, th(? proof whereof shall lie on him, {a.) ' purchases or receives from any other person, or has in his ciiistody or possession any forged bank notes, bank bill of exchange or bank post bill, or blank bank note, blank bank bill of exchange or blank bank post bill, knowing the same to be forged ; or {b.) ■' makes, uses, sells, exposes for sale, utters or dis- poses of, or knowingly has in his custody or possession any Dominion, provincial or bank note paper as defined in the note hereto ; or {r.) makes or uses, or knowingly has in his custody or possession, any frame, mould or instrument for making any such paper ; or {(l.) by any contrivance causes (i.) any words used in any dominion, provincial or bank note, or any part of such words intended to resemble and pass for the same, or any device or dis- tinction peculiar to and appearing in the substance of iS.D.Art.2()2. - H. S. C. c. 165. s. 19 ; 24 A 25 Vict, c 98, s. 13. » K. S. C. c. 165, ss. 20, 24 ; 2-t & 25 Vict. c. 98, S8. 14, 18. Dominion, provincial or bank note paper moans any paper used for dominion or pro- vincial notes, or for bank notes, with any words used in such notes, or luiy part of such words intended to resemble or pass for the same, visible in the substance of the i)aper,or with curved or waving bar lines, or with the layinn wire lines thereof in a waving or curved shape, or with any number, sum or amount, expressed in a word or words in letters, visible in the substance of the paper, or with any device or distinction peculiar to and appearing in the substance of 'he paper u?eil for such notes, respectively ; (s. 20) ; and the expression "bank note paper" also includes paper, with the name or firm of any bank or body corporate, company or person carrying on the business of bankers, appear- ing visible in the substance of the paper ; (s. 24). 412 A DfGEST OF th(> paper used for any such notofs, rcspoctivtily, to appear visible iu the substance oi'any paper ; or (ii.) the numeritsal sum or amount of any such note, in a word or words in letters, to appear visible in the sub- stance of the paper whereon the same is written or printed ; or (iii.) the name or firm of any such bank, body corporate, company or person to appear visible in the substance of the paper upon which the same is written or printed ; or (e.) ' engraves or in anywise makes upon any plate what- soever, or upon any wood, stone or other material, any promissory note or part of a promissory note, purporting to be a dominion or provincial note or bank note, or to be a blank dominion or provincial note, or bank note, or to be a part of any dominion or provincial note, or bank note, or any name, word or character resembling*, or apparently intended to resemble, any subcription to any such dominion or provincial note, or bank note ; or uses any such plate, wood, stone or other material, or any other instrument or device for the making or print- ing of any such note, or part of such note ; or knowingly has in his custody or possession any such plate, wood, stone or other material; or any such instru- ment or device ; or knowingly offers, utters, disposes of or puts off, or has in his custody or possession any paper upon which any blank dominion or provincial note, or bank note, or part of any such note, or any name, word or character re- sembling, or apparently intended to resemble, any such subscription is made or printed ; or (/.) - engraves or in anywise makes upon any plate whatsoever, or upon any wood, stone or other material, any word, number, figure, device, character or ornament, ■;he impression taken from which resembles, or is 1 R . S. C. c. 165, s. 22 ; 24 A- 25 Vict. c. 98. s. 16. - K. S. C. c. 105, 8. 23 ; 24 & 25 Vict. c. 98, s. 17. THE ClilMINAL LAW. 413 appiULMitly intondod to rosomhlo any part ol' a domiuiou or provincial note, or bank not(« ; or uses or knowini^ly has in his (custody or possession any such plate, wood, stone or other material, or any othfr instrument or dovi«H' for the impressing or makinjj; upon any paper or any other mat»>rial, any word, number, iiuure, (character or ornament, which resembles or is apparently intended to resemble any part of any such note ; or knowingly otters, utters, disposes of or puts off, or has in his custody or possession any paper or other material upon which there is an impression of any such matter as aforesaid. ' It is not an offence to issue any bill of exchange or l)romissory note, having the amount thereof expressed in a numerical figure or figures denoting the amount thereof in pounds or dollars, appearing visible in the substance of the paper upon which the same is written or printed, or to make, use, or sell any paper having waving or curved lines, or any other devices in the nature of water marks visible in the substance of the paper, not being bar lines or laying wire lines, provided the same are not so contrived as to form the groundwork or texture of the paper, or to resemble the waving or curved, laying wire lines or bar lines, or the water-marks of the paper used for dominion, provincial or bank notes. ^ Article 514. unlawful possession, etc., of paper prepared for debentures and other securities — plates, DIES, ETC. Every one is guilty of felony and liable to seven years' imprisonment in cases {a.), {b) and (c), and to imprison- ' R. S. C. c. 165, 8. 21 ; 24 & 25 Vict. c. 98, s. 15. .;; = S. D Art. 363. '- " 414 A n in EST OF iiu'iit for any term Icsh than two yoarH in case (ri.), who, without hiwiul authority or cxcuh*', tho prooi' whi^rcof nIuiII lit^ on hiiii, in.) maki's or cauHos or procun'H to be nuidc, or iiidH or assiHtH in nuikinj"-, or knowin«:;ly haw in his custody or poNsoHsion (i ) ' any papor in thu BubHtance of which appear any words, h'ttcrs, li^uri's, nuirks, lines, throads or other devices peculiar to and appearing" in the substance ot' any paper provided or to be provided or used lor dt^bentures, exchequer bills or exchequer bonds, dominion or pro- vinidal " notes or other securities issued under the authority ol' any Act of the Parliament of Canada, or of the Legislature of any Province of Canada, or any part of sucih words, letters, ligures, marks, lines, threads or other devices, and intended to imitate the same ; or (ii.) 'any Ir.ime, mould or instrument, having therein any words, letters, figures, marks, lines or devices, peculiar to or appearing in the substance of any paper provided or to be provided and used for any such debentures, exchequer bills or exchequer bonds, notes or other securities ; or (iii.) any machinery for working any threads into the substance of any such paper, or any such thread, and in- tend(^d to imitate such words, letters, figures, marks, lines, threads or devices , or (iv.) any plate peculiarly employed for printing such debentures, exchequer bills or exchequer bonds or such notes or other securities ; or (v.) any die or seal peculiarly used for preparing any such plate, or for sealing such debentures, exchequer bills or exchequer bonds, notes or other securities ; or ' ]l. S. C. c. 165, fi. 15 ; 24 & 25 Vict. c. 98, e. 10. - But see the Article next preceding and the sections of the Act on which the same is founded, by the provisions of which the sumo and like olTences as defined in the text in respect of Dominion and Provincial note paper are punishable by imprisonment for fourteen years. . •' R. S. C. 0. 165, 8. 14 ; 24 & 25 Vict. o. 98, i?. 9. THE rniMrxM law. ns (vi.) aiiy plato, die or Hfiil, intoiulcd to iinitatc any Hiuh plat ', die orm'al ; or (b.) ' c-iniNcs or lussifstH in eiivisiui; any such words, l«'tlt'rN, lif,'iires, marks, lines, threads or devi<'«'s, or any ))art of HUcli woi'ds, l»'tti*rs, n«jurcN, marks, lines, thn'ads and other U* a a o a a , , V ■ y. A • o '. c : : .2 •« ■ -*-< i* a» > • .2 " H S! > w Indic OR RY Co 5-t s bS s 5 i 3 «*- a u s 5 32 t) :^ ; S 3 3 B.o 3- ■3 a M O B ' W en u E-i 02 a o o B ^ -*-» o ■ , o • d o » 3 -J3 "^ • M " h Mu O a o ~ ■<-' cj O. J, Ed o ?! M b. Ex o a; c. o A a -§ . » : •«^ in a ,CL| §^ bo's E o tn DTj >-« ^Is a rt h =5 o : (sn NlV B crs -S ^=^ s P4 5 » 5 to'*' ® h'b5 Sis® CO S . a) - . SE O • B.J3 . IK • TSTS ■ B O • 2-2 : -^1 : (-< B • O a^ : tM : '.2 : fl CO , i-g : IS I om : U|C • eS ■ 4, O u "b 60" S tZJl o— ** , n ■w B a g 3 K S3 ra V 3 to B O a B 3 O O a« o 2 B~'' e* ~ B^ '■^ e -2S •^ (-1 to a a a. «2e h bi M l^ -5 if o o ^a B E3 .SSI'S •*' s o >■ THE CRIMINAL LAW. 419 o, a o e s a o a 03 a 02 H"' a « o a o .a o O CO 2 o 3"- OS S t/j w ■" o " ; ; ^ 1 ; ; I ; ; M • • • • • • • • O t^ * * • * u ■ t^ * > 5 o o a s 1 ^oaa S 4) 1^ S i >. 0) a CQ »§ 3 * ; 3 § 'd If n3 3 ii CQ « CO • <-< 1 i s CO to ^ CO s S ■>J< • • CO m a' VJ Vj V* tfv tfj tf' Cfi »! g ■< 'S « ■^ »o o oT o i s 3 rH i—t I-H f-H ig U « u c5 o ^ O u O c3 d d d U d d d d d d GEJ aj OQ CO 02 M c« 02 02 02 as PS «• a: o: ^ 03 C.3 d « u be O hi tS ■ o_B : -•'^"f : .-§& c s : ga . §"•;». : » : «4_, m ■ o'a : .2 :S • tac ; a§! .- o • Si's a > 2 o.S >« « « o S^ ^a '. d ei , ■s.s •• « 3 : M§ : .5 '^ • '•" u '. -2© : "S be ' .5 o ^ ..a ^as • CO (-0 g JO a §a«2 o o . *-" • gt : ^§ : -^■^ g Ot u* u ■** o a ■gas « t- S in 3 O • '^^ '■ la: 53 w • .&a : .Sog cn ^ 4J Q) CS_fl saw .s.sg 2§ja £«5 : T3« : » ^, • en tC ' 3 a jH xl— I o -SIS r^ ai ,y a. .a m 0) e3 H '-' cj m o *^ CO § .9|i ■St? »" 2 f? •u a J; a <- SI J;ja o 0*3 _w 3 "a-2 g w a ° c . m ce •^3 .* • i« '• ra*! S =3 to .s»s '^ - " ID C 3 ■t; o m S o D o 3.-S d a £! J- o o ;aao ? oj • fc^ : ^sjf : ^ s • J^ ■ f»;B ■■ >..a : ■^u : •o^ : ■§5 2 3 ° a es m S •Ma 00 >- r aa = CO as ■■3 3 C ^ i^4 .Son 3-^.tJ S.s • \.^ ■ §f. : •S 5f ; 'a"53 ; as: : 3>> •■ 00 c • *." : £-• : o . "B-w • a ^ • 2 » ; !" • ag • •-C e". a 2e2 420 A DIGEST OF % g-'i- ceo-'"'-' nU ."-3 a csj^.s l^^'-lt 2 M-S 5 c o £ .• ■£S^>> a««^.^.- a «■>■>■- ^ En \ : ' '■ s m > S9 ^ «' 00 er. n'. CO ■«1 CO o CQ CO o Se u b b © .a .2 5 s ® ''a -t-» ^ o s> gs .5 u .EJ3 bco .5 o P ® a .2 »« " S °'^ "t- S'C « e3 k w ® ^ lis 03 CA <^ CJ .2S:-i«f : CJ3 S : « o o . oS" : ^^ Ml . alii °2 a fto c o c. a S o 02 CQ d PS o.S 2S d; r2 »« o £ >- 3 tfi rt S_ " g=a fc-gt5.S , a: Jo o O a e3 ' °S o c2 « O »-C o .w c "^ 2 m o & o .t.S^ ft a a c. o a o E -"I :^ ^-^ H «*§ =■« • C? O - i'- ■ "'Ir' I* a.a raw Uo a 3 m « fc. • tn r^ n u, S o a to WJij £.5 " * sS I (^ rt C ; rt tc-i, ■ j__ c c . c=2§ : p^§ : S— ° . oiJo • -sis 2 " g ei a »:==(«■£ ^•^ a tr CO 2 a ... 5 « aS«& a.ss§ 3 — c o 20 SJ ^HE CRIMrNAL LAW. 421 23 4J a a a S a o C3 a a o a o & p SB O ■X. > M gtf b a u a 13 a M O *" 2 OS!* MM 23 03 as :: c i boa S.2 3.S S = C 3 O g E § ■"■a "^ t, s u •" 5 >—'••-' b rs ^ tn d ^ od C ^'^^ -fcSj3 3 o ^ .St* •■" L' 1 c . a ^ c H o t? a? w 3 — oft a o es.o « S 2 ■=■^0 3 O cj 1—1 b d OS PS . u ■o-g : 'o%-t n ►. ly .4? a a) ^ Q, .S.-.Sg'b. -"" a 4! "^ 422 A DIGEST OF ' CHAPTER XLIV. forgery of trade marks, fraudulent marking of merchandise— offences respecting patented articles, industrial designs and the marking of timber. Article 520. definitions. ^ In this chapter : — (a.) The expression " trade mark " means a trade mark or industrial design registered in accordance with " Tlie Trade Mark and Design Act " and the registration whereof is in force under the j>rovisions of the said Act, and includes any trade mark which, either with or without registration, is protected by law in any British possession or foreign State to which the provisions of section one hundred and three of the Act of the United Kingdom, known as "27te Patents, Designs, and Trade Marks Act, 1883," are, in accordance with the provisions of the said Act, for the time being applicable ; (b.) The expression " trade description " means any description, statement, or other indication, direct or indi- rect, (i.) as to the number, quantity, measure, gauge or weight of any goods ; or (ii.) as to the place or country in which any goods were made or produced ; or 1S.D. Arts. 364, 366. ^ - ' %v^ ^ ; The Merchandise Marks Act, 1862, on which Articles 364 and 365 of Stephen's Digest are founded was repealed by the Merchandise Marks Act, 1887. The latter Act was followed in Canada in The Merchandise Marks OlTences Act, 1888 (51 Vict. (D.) c. 41) by which The Trades Marks OfiFences Act (R. S. C. c. 166) was repeale^L - 51 Vict. (D.) c. 41, s. 2 ; 50 & 51 Vict. c. 28, ss. 3, 5, THE CRIMfXAL LAW. 423 (iii.) as to the mode of manui'aci uriug' or producing any goods ; or (iv.) as specting the applica- tion of a false trade description to goods, or respecting goods to which a false trade description is applied, extend to the application to goods of any false name or initials of a person, and to goods with the false name or initials of a por^^n applied, in like manner as if such name or initials were a trade description, and for the purpose of this chapter the expression "false name or initials" means as applied to any goods, any name or initials of a person which (i.) are not a trade mark, or part of a trade mark ; and (ii.) are identical with, or a colorable imitation of, the name or initials of a person carrying on business in con- nection with goods of the same description, anji not having authorifzed the use of such name or initials ; or (iii.) are either those of a fictitious person or of some person not bond fide carrying on business in connection with such goods. Article 521. words or marks on watch cases. ' ^ "Where a watch case has thereon any words or marks which constitute, or are by common repute considered as constituting, a description of the country in which the watch was made, and the watch bears no description of the country where it was made, those words or marks shall prima fade be deemed to be a description of that country within the meaning of this Chapter, and the provi- sions of this Chapter with respect to goods to which a false description has been applied, and with respect to selling » 51 Vict. (D.) 0. 41, s. 11 ; 50 & 51 Vict. c. 2i, s. 7. THE CRIMINAL LiXW. 425 ov exposing? for, or havin) and (4). ■"andmay bo seized by any officer of tho Customs and dealt with in like manner as " any goods or things forfeited under this Act; " 51 Viot. (D) c. 41, s. 22. '' 51 Vict. (D) c. 41, s. 5 i 50 k 51 Vict. c. 28, s. 6. 430 . A DIGEST OF die, block, machine or other instrument for the purpose of forging, or being used for forging a trade mark, or with falsely applying to goods any trade mark, or any mark so nearly resembling a trade mark as to be calculated to deceive, or with applying to goods any false trade description, or causing any of the things in this Article mentioned to be done, and proves {a.) that in the ordinary course of his business he is employed, on behalf of other persons, to make dies, blocks, machines or other instruments for making or being used in making, trade marks, or, as the case may be, to apply marks or descriptions to goods, and that in the case which is the subject of the charge he was so employed by some person resident in Canada, and was not interested in the goods by way of profit or commission dei)eudent on the sale of such goods ; and (b.) that he took reasonable precautions against com- mitting the offence charged ; and (c.) that he had, at the time of the commission of the alleged offence, no reason to suspect the genuineness of the trade mark, mark or trade description ; and (d.) that he g£.ve to the prosecutor all the information in his power with respect to the person by or on whose behalf the trade mark, mark or description was applied ; He shall be discharged from the prosecution, but shall be liable to pay the costs incurred by the prosecutor, unless he has given due notice to him that he will rely on the above defence. r Article 531. DEFENCE WHERE OFFENDER IS A SERVANT. * No servant of a master, resident in Canada, who bond fide acts in obedience to the instructions of such master, and, on demand made by or on behalf of the prosecutor, >51 Vict. (D.) c. 41, s. 20 (3) ; 50 & 51 Viot. c. 28, s. 19 (3). THE CRIMINAL LAW. 431 gives full information as to his master, is liable to any prosecution or punishment for any offence defined .in this chapter. AllTICLE 532. EXCEPTION RESPECTIXO T'UDE DESCRIPTION LAWFULLY APPLIED TO GOODS ON 22ND MAY, 1888, ETC. ' The provisions of this chapter with respect to false trade descriptions do not apply to any trade description which, on the 22nd May, 1888, was lawfully and gener- ally applied to goods of a particular class, or manufac- tured by a particular method, to indicate the particular class or method of manufacture of such goods. Provided, that where such trade description includes the name of a place or country, and is calculated to mislead as to the place or country where the goods to which it is applied were actually made or produced, and the goods are not actually made or produced in that place or country, such provisions shall apply, unless there is added to the trade description, immediately before or after the name of that place or country, in an equally conspicuous manner with that name, the name of the place or country in which the goods were actually made or produced, with a statement that they were made or produced there. Article 533. patentee selling patented article not v marked, etc. ^ Every one is liable to a penalty not exceeding one hundred dollars, and in default of payment thereof to imprisonment for a term not exceeding two months, who ' 51 Vict. (D.) c. 41. s. 19 ; 50 & 51 Vict. c. 23, s. 18. -' R. S. C. c. 61, s. 54. The j e;ir of the date of the patent is to be marked thus, " Patented 1880," or as the case may be. The penalty is recoverable by civil aotion ; R. S. C. c. 180, s. 1 4S2 A DJdEST :.-f sells or offers for sale any article patented by him under The Patent Act, if the year of the date of the patent is not stamped or engraved on such article, or on a label affixed thereto, or to the package in which the same is contained. Article 534. falsely marking aiiticle as tatented. ' Every one is guilty of a misdemeanor, and liable to a fine not exceeding two hundred dollars, or to imprison- ment for a term not exceeding throe months, or to both, who (a.) writes, paints, prints, moulds, casts, carves, en- graves, stamps or otherwise marks upon anything made or sold by him, and for the sole making or selling of which he is not the patentee, the name or any imitation of the name of any patentee for the sole making or selling of such thing, without the consent of such patentee; or (b.) without the consent of the patentee, writes, paints, prints, moulds, casts, carves, engraves, stamps or other- wise marks upon anything not purchased from, the patentee, the words "patent," "letters patent," "Queen's pateuu," " patented," or any word or words of like import, with the intent of counterfeiting or imitating the stamp, mark, or device of the patentee, or of deceiving the public and inducing them to believe that the thing in question was made or sold by or with the consent of the patentee or his legal representative ; or (c.) offers for sale as patented any article not patented in Canada, for the purpose of deceiving the public. Article 535. unlawfully applying industrial design to any article, etc. Every one is liable, on summary conviction, to forfeit 2 » R. S. C. 0. 61, s. 55. ^K. S.C.c.63,8.31. THE CRIMINAL LA W. • 433 to the proprietor of any industrial design, registered under TJte Trade Mark and Design Act, or to his assignee, a sum not exceeding one hundred and twenty dollars, and not less than twenty dollars, with costs, who, during the existence oi' the exclusive right (either of the entire or partial use of such design) without the license in writing of the registered proprietor, or of his assignee, as the case may be, (rt.) applies such design, or a fraudulent imitation thereof^ to the ornamenting of any article of manufacture, or other article to which an industrial design may be ap- plied or attached, for the purposes of sale ; or {b.) publishes, sells or exposes for sale or uses any such article to which such design or fraudulent imitation thereof has been applied. Apticle 536. FALSELY PLACING ON ANY ARTICLE WORDS DENOTING THE REGISTRATION OF AN INDUSTRIAL DESIGN, ETC. ' Every one is liable, on summary conviction, to a penalty not exceeding thirty dollars, and not less than foT dollars and costs, who places the word "registered " or the letters " Rd.," upon any article for which no design has been registered, or upon any article for the design of which the copyright has expired, or who advertises the same for sale as a registered article, or unlawfully sells, publishes or exposes for sale such article, knowing the same to have be^n fradulently marked, or that the copy- right therefor ha 5 expired. . Article 537. using timber marks unlawfully. '^ Every one is liable, on summary conviction before ' R. S. C. c. 63, s. 32. - K. S. C. C.64, s. 7. TJ. • -re- as in parentheses are not in the Act, but they are, of course, implied. See Art. lU. 2p 484 • A DIGEST OF two justices of the peace, to forfeit to the proprietor of any mark registered under Tlie Act Respecting the Marking of Timber a sum not exceeding one hundred dollars, and not less than twenty dollars and costs, who (without lawful authority) marks any timber with any such mark, or any part oi such mark. THE CRIMINAL LAW. 435 CHAPTER XLY. » PERSONATION. Article 638. personation at civil service examinations. - Every one who, at any examination held under Tlie Civil Service Act, personates any candidate or employs, induces or allows any person to personate him, is guilty of a misdemeanor, and liable, on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding two hundred dollars, and, if he is employed in the Civil Service, to be dismissed therefrom Article 539. personation at militia parades. ' Every one is guilty of a misdemeanor and liable to a fine of one hundred dollars, who falsely personates another at any parade of the Militia, or on any other occasion, for any of the purposes required by The Militia Act. Article 540. , FRAUDULENTLY ACTING AS AGENT OF AUTHOR IN registration OF COPYRIGHT. * Every one is guilty of a misdemeanor, and liable to 'Seensto:— personation at elections, Art. 170 ; personation of owner of shares or interest in any public fund, or capital stock of any company, or of any claim to any crown grant) scrip, &c,, Article 493 (c.) ; and acknowledging recognizance, &c., in false name. Art. 506. = R. S. C. c. 17, s. 9 (6), as enacted in 51 Vict. (D), c. 12, s. 2. Every one who surrepti- tiously procures from, or without authority furnishes to, any person any examination paper is liable to the same punishment. ' R. S. C. c. 41, s. 99. The time within which the offender may be prosecuted is limited to sis months ; s. 112. K. S. C. c. 167, s. 1 ; 21 & 25 Vict. c. 99, s. 1. For definition of " having in possession ' see page 4. *]i. V. Herman, L. R. i Q. B. D. 284. "* These definitions are not taken from section 1 but from the Act generally 438 A DTdKST OF coloring by any means whatsoever with any wash or materials capabh^ of producing the appearance of gold or silver respectively. ' " Utter " includes " tender " and " put off." - Article 544. COUNTEllFEITING COINS, ETC. Every one is guilty of felony and liable to imprison- ment for life in cases {a), {b), (c), {d) and (e) and for seven years in case (/) who '' (rt.) * makes any counterfeit coin resembling or appa- rently intended to resemble or pass for any current gold or silver coin ; ■' (h.) gilds or silvers any coin whatsoever, resembling or apparently intended to resemble or pass for any current gold or silver coin ; (c.) gilds or silvers any piece of silver or copper, or of coarse gold or coarse silver, or of any metal or mixture of metals respectively, being of a fit size and figure to be coined, and with intent that the same shall be coined into counterfeit coin resembling or apparently intended to resemble or pass for any current gold or silver coin ; {d.) gilds any current silver coin, or files or in any manner alters such coin, with intent to make the same resemble or pass for any current gold coin ; (e.) gilds or silvers any current copper coin, or files or in any manner alters such coin with intent to make the same resemble or pass for any current gold or silver coin ; or " (/.) makes any counterfeit coin resembling or appa- rently intended to resemble or pass for any current cop- per coin. 1 This definition is not taken from section 1 but from the Act generally a S. D. Arts. 370 (a), (b), (c), (d), 372 (a). 3 R. S. C. c. 167, s. 3 ; 2t & 25 Vict. c. 99, s. 2. *" Falsely makes."' 5 R. S. C. c. 167, s. 4 ; 21 & 25 Vict. c. 99, s. 3. « R. S. C. c. 167, s. 15 ; 24 & 25 Vict. c. 99, 8. 14. THE cm Mr N A L LA W. UJO ' Article 545. dealing in and impoiltin(t counterkeit coin. Every one is guilty of felony and liable to imprison- ment for life in cases (a) (i) and [b) and for seven years in case {a) (ii) who, without lawful authority or excuse, the proof whereof shall lie on him, - (a.) buys, sells, receives, pays or puts olF, or offers to buy, sell, receive, pay or put off, at or for a lower rate or value than the same imports, or was apparently intended to import, (i.) any counterfeit coin resembling or apparently inten- ded to resemble or pass for any current gold or silver coin, (ii.) any counterfeit coin resembling or apparently in- teded to resemble or pass for any current copper coin, •'' {b.) imports or receives into Canada any counterfeit coin resembling or apparently intended to resemble or pass for any current gold or silver coin, knowing the same to be counterfeit. Article 546. manufacture of copper coin and importation of uncurrent copper coin. ^ Every one who manufactures in Canada any copper coin, or imports into Canada any copper coin, other than current copper coin, with the intention of putting the same into circulation as current copper coin, is liable, on summary conviction, to a penalty not exceeding twenty dollars for every pound Troy of the weight thereof ; and all such copper coin so manufactured or imported shall be forfeited to H^r Majesty. , '" Article 64Y. EXPORTATION OF COUNTERFEIT COIN. ^ Every one is guilty of a misdemeanor and liable to 'S. D. Arts. 370(e), (/) 372(c). "■ R. S. C. 0. 167, S8. 7, 15 ; 24 & 25 Vict. c. 99, gs. 6, 14. =• R. S. C. c. 107, s. 8 ; 24 & 25 Viot. c. 99, s. 7. * R. S. C. c. 167, ?, 2«. 6 S. D. Art. 375 (a). «R.S.C.c. 167,8.9; 24 & 25 Viot. c. 99, s. 8. 440 A DKIKST OF imprisonm«»nt for any t(»rm Ichh than two years who, without hiwt'ul authority or oxruso thci prool' whoroof •shall lio on him, exports or puts on board any ship, vessel or boat, or on any railway or carriage or vehicle of any description whatsoever, tor the purpose of being ex- ported I'rom Canada, any counterfeit coin resembling or apparently intended to resemble or pass for any current coin or for any foreign coin of any prince, country or state, knowing the same to be counterfeit. ' Article 548. making instruments ' ^ coining. Every one is guilty of felony, and liable to imprison- ment for life in cases (a), {b) and (c), and for seven years in case {d), who, • without lawful authority or excuse, the proof whereof shall lie on him, makes or mends, or begins or proceeds to make or mend, or buys or sells, or has in his custody or possession, '(«.) any puncheon, counter puncheon, matrix, stamp, die, pattern or mould, in or upon which there is made or impressed, or which will make or impress, or which is adapted and intended to make or impress the figure, stamp or apparent resemblance of both or either of the sides of any current gold or silver coin, or of any coin of any foreign prince, state or country, or any part or parts of both or either of such sides ; {b.) any edger, edging or other tool, collar, instrument or engine adapted and intended for the marking of coin round the edges with letters, grainings, or other marks or figures, apparently resembling those on the edges of »S. D. Art. 370(f/),372(W. 2 [A orders a die for coining counterfeit half-crowns from B. B communicateH with the Mint, and is permitted by them to finisih and deliver the die to A. A receives it. A has the die in his possession without lawful excuse ; U. v. Harvty, L. R. 1 C. C. R. 285.] 3 R. S. C. c. 167, s. 24 ; 21 & 25 Vict. c. f 9, s. 24. The word '* knowingly " precedes the word " makes " in the provisions from which clauses («) and (d) are taken. THE cniMINAL LAW. 441 any such coin, knowinn- the same to bo so udiiptcd and intended ; (r.) any pivs.s for coinafTf, or any cuttin<>' engine for cutting', by force of a sck^vv or of any other lonlrivaiKx', round bhmkH out of gold, silver or other metal or mix- ture of metals or any other machine, knowing such press to bo a press for coinage, or knowing such engine or ma- chintz to have been used or to be intended to be used for or in order to the false making or counterfeiting of any such coin ; {(1.) ' any instrument, tool or engine adapted and intended for the counterfeiting any current copper coin. '^ Article 549. bllinoina instruments for coinino from mints into CANADA. 'Every one is guilty of felony, and liable to imprison- ment for life, who, without law^ful authority or excuse, the proof whereof shall lie on him, knowingly conveys out of any of Her Majesty's mints into Canada, any pun- cheon, counter puncheon, matrix, stamp, die, pattern, mould, edger, edging or other tool, collar, instrument, press or engine, used or employed in or about the coin- ing of coin, or any useful part of any of the several arti- cles aforesaid, or any coin, bullion, metal or mixture of metals. ^Article 550. clippina current gold or silver coin. ' Every one is guilty of felony, and liable to fourteen • E. S. C. c. 167, s. 15 ; 24 k 25 Viot. c. 09, «. 14. •S. D. Art. 370 (A). ' K. S. C. c. 167, 8. 25 ; 24 & 25 Vict. c. 99, s. 25. . 16. : ^S. D. Art. 372(/). * R. S. C. c. lf)7, H. 6 ; 24 k 25 Vict. c. 99, s. 5. liS.D. Arts. 374(c), 375 (c). TJIK CRIMINAL L.\ \V. 448 poNNi'MHioii, knowing th(» stinm to b«» fountorlbit, and with iutoiit to utt«'r the Niimo or iiiiy ol' tlu^m. ' {a.) liny couiitt'ircit coin rcMi'mhling or iijiparontly in- U'ikUhI to rcHoinblit or puHH lor any curruui gold or silvor coin : or •' (b) three or nioro pioccH of counterfeit coin rcHcmhling or apparently intended to resemhlo or pass lor any cur- rent copper coin. ' AllTlCLK 554. UTTEUINO rOUNTEIlKElT Oil LKHIT COINS, METALS, ETC. Every one is guilty of a mlMdomoanor, and lii ble in case (a.) to fourteen years' iinprisonm(Mit, and in cases [b), (c.) and {d.) to one year's iniprisonniont, who ' {a.) utters any counterfeit coin resem])ling or appa- rently intended to resemble or pass for any current gold or silver coin, knowing th.' same to be (Counterfeit ; ' {b.) utters, as being current, any gold or silver coin of loss than its lawful weight, knowing such coin to have been impaired, diminished or lightened, otherwise than by lawful wear. " (c.) with intent to defraud, utters, as or for any current gold or silver coin, any coin not being such current gold or silver coin, or any medal, or piece of metal or mixed metals, resembling, in size, figure and color, the current coin as or for which the same is so uttered, such coin, medal or piece of metal or mixed metals so uttered being of less value than the current coin as or for which the same is so uttered ; ^ {(l.) utters any counterfeit coin resembling or appa- ' R. S. C. c. 167, s. 12 ; 24 A 2.5 Viot. c. -9, c. 11. " R. 8. C. 8. 167, 8. 16 ; 24 ct 25 Viot. c. l>9, f.. 16. "S.D. Art. 371 ((..), 375(6.), ((/). , < R. S. C c. 167, 8. 10 ; 24 k 25 Vict. c. 90, 8. 9. -1^-- •-^-— — — - 'R.S.C. 0.167,8.11. « R. S. C. c. 167, 8. 14 ; 24 & 25 Vict. c. 90, 8. 13. [As to the degree of resemblance neces • Bary to bring a modal within this section, see R. v. Robertson, L. & C. 604.] ' R. S. C. c. 167, 8. 16 ; 24 & 25 Vict. c. 99, p. 15. 444 A D TO EST OF rently intended to resemble or pass for any current cop- per coin, knowing' the same to be counterfeit. ' Article 555. punishment of subsequent offences. ^ Every one who, having been convicted of any misde- meanor defined in Art. 553 (a.), or in clause {a.) or (6.) of Art. 554, or of any misdemeanor or felony defined in this Chapter, or any Act relating to the coin, afterwards com- mits any of the misdemeanors defined in Art. 563 (a.) or in clause (a.) or {b.) of Art. 554, is guilty of felony and liable to imprisonment for life. Article 556. UTTERING defaced COIN. ^ Every one who utters any coin defaced, by having stamped thereon any names or words, is liable, on summary conviction before two justices of the peace, to a penalty not exceeding ten dollars ; but no person shall proceed for any such penalty without the consent of the Attorney- G-eneral for the Province in which such offence is alleged to have been committed. Article 55*7. % UTTERING UNCURRENT COPPER COINS. :;::'::' ■'l^^/ * Every one who utters, or offers in payment, any copper coin, other than current copper coin, is liable on summary conviction to a penalty of double the nominal value there- of, and in default of payment of such penalty to eight days' imprisonment. » S. D. Art. 374 (rf.) 2 R. S. C. 0. 167, s. 13 ; 24 & 25 Vict. c. 99, s. 12. 3 R. S. C. c. 167, s. 18 ; 24 and 25 Vict. o. 99, s. 17. * R. S. C. 0. 167, s. 33. THE CRIMINAL LAW. 445 ' Article 558. ^ uncurrent foreign coins. Every one is guilty of a felony in cases [a) and (6) (i) and of a misdemeanor in cases (6) (ii) (t) and {d) who ' (a.) makes any counterfeit coin or silver coin, resem- bling or apparently intended to resemble or pass for any gold or silver coin of any foreign prince, state or country, not being current coin, {h.) without lawful authority or excuse, the proof of which shall lie on him ; ' (i.) brings or receives into Canada any such counter- feit coin, knowing the same to be counterfeit ; •'' (ii.) has in his custody or possession any such coun- terfeit coin, knowing the same to be counterfeit and with intent to put off the same ; "' (c.) utters any such counterfeit coin ; or ' [d.) makes "* any counterfeit coin, resembling or ap- parently intended to resemble or pass for any copper coin of any foreign prince, state or country, not being current coin. , . v • And is liable to imprisonment as follows, that is to say : In cases [a.) and {h.) (i), to seven years. . In case {b.) (ii), to three years. In case (c.) for a first offence six months, for a second offence any term less than two years, and for any ' sub- sequent offence seven years. In case {d.) for a first offence one year, and for any subsequent offence seven years. IS. D. Art. 372 ((»),(<'.), 375 (/■), 373. ;: 2 As to exportation, see Art. 547. ^ R. S. C. c. 167, s. 19 ; 24 k 25 Vict. c. 99, s. 18. 51 Vict. (D) e. 40, s. 2. v ^ . ••'61Vict.(D)c.40, a.3. THE CRTMTNAL LAW. 449 CHAPTER XLVIII. , • ^ MALICIOUS INJURIES TO PROPERTY. • ; '^Article 662. arson— setting fire to buildings, etc. — offences punishable by imprisonment for life. Every one is guilty of felouy, and liable to imprison- ment for life, who unlawfully and maliciously sets fire' to : ' (a.) any church, chapel, meeting-house or other place of divine worship ; or ' (b.) any dwelling house, any person being therein ; or " (c ) any house, stable, coach-house, out-house, ware- house, office, shop, mill, malt-house, hop-oast, barn, store- house, granary, hovel, shed or fold, or any farm build- ing, or any building or erection used in farming land, or in carrying on any trade or manufacture or any branch thereof, whether the same is then in the po8se.j^lon of the ' It i.s not material whether any offence ogaiust R. S. C. c. 163 is oommitted from malice conceived agiiin.st the owner of the property in respect of which it is committed or other- wise (H. S. 0. c. KiS, s. CO ; 24 A 25 Vict. c. 97, s. 58 ; R. v. BmiUhaie, 38 U, C. Q. B. 564) ; nor whether tlie offender is or is not in possession of the property if tlie offence is com- mitted with intent to injure or defraud any person (R. S. C. c. ]68, s. 61 ; 24 & 25 Vict. o. 97, s. 69.) '■^S. D. Art. 377(a.) •'[As to what constitutes " setting firci" it is not necessary that flame should be seen ; R.v. Stnllion,! Moo. 3i)S; but it is not sufficient that wo3d should bo scorched black : B, v. Uiusell, Car. & M. 541. It is sufficient if the wood has been at a red heat ; E. v. PoA-er, 9 C. ife P. 45. I suppose the question is whether the thing burnt has or has not begun to be decomposed by the action of fire.] With respect to the case of a man settinR firo to his own Ihouse, see Jl. v. Greenwood, 23 U. C. Q. B. 250; B. v. Cronin, 1 Ont. Dig. m;n. V. B)-vttM, 12 u. c. c. p. 161. m. S. C. o. 168, s. 2 ; 24 and 25 Vict, c 97, s. 1. ^ R. S. C. c. 168, s. 3 ; 24 and 25 Vict. c. 97, s. 2. ■^R. S. C. c. 164, 8. 4 ; 24 and 25 Vict. c. 97, s. 3. A building used by a carpenter, who is putting up a house near it, as a place of deposit for his tools and window frames that he had made, but in which no work is carried on by him, is not a building used in carrying on a trade ; R. v. Smith, 14 U. C. Q. B. 546. 2 G 460 A DIGEST OF offender, or in the possession of any other person, with the intent thereby to injure or defraud any person ; or ' (d.) any station, engine-house, warehouse or other build- ing", belonging or appertaining to any railway, port, dock or harbor, or to any canal or other navigable water ; or " (e.) any building, other than such as are hereinbefore mentioned, belonging to Her Majesty or to any county, riding, division, city, town, village, parish or place, or belonging to any university or college, or hall of any university, or to any corporation, or to any unincorporated body or society of persons, associated together for any lawful purpose, or devoted or dedicated to public use or ornament, or erected or maintained by public subscription or contribution ; or ' (/.) any stack of corn, grain, pulse, tares, hay, straw, haulm or stubble, or of any cultivated vegetable produce, or of furze, gorse, heath, fern, turf, peat, coals, charcoal, wood or bark, or any stere or pile of wood or bark ; or * (g-.) any mine of coal, cannel oil, anthracite or other mineral fuel, or any mine or well of oil or other com- bustible substance. ,;• :; ^Article 563. arson— setting fire to buildings, etc. — offences puktshable by fourteen years' imprisonment. Every one is guilty of felony, and liable to fourteen years' imprisonment, w^ho unlawfully and maliciously sets fire to " (a.) ' any building other than such as are mentioned in 1 R. S. C. c. 168, s. 5 ; 24 & 25 Vict. c. 07. s. 4. - R. S. C. c. 168, B. 7 ; 24 & 25 Vict. c. 97, s. 5. 3 R. S. C. c. 168, s. 19; 24 & 25 Vict. c. 97, s. 17. * R. S. C. c. 168. s. 28 ; 24 A: 25 Vict. c. 97, s. 26. ^S. D. Art. 378(a), (W.(e). » R. S. C. c. 168, 8. 8 ; 24 and 25 Vict. o. 97, s. 6. ' [If it were not for the arbitrary and practically unimportant distinction between the punishment for this offence, and for the offeuces defined in Art, 562, clauses («)-(<;). the following: enactment would include them all :— " Whoever sets fire to any building what- ever shall be liable to pennl servitude for life as a maximum punishment." This would reduce six cumbrous sections, filling a page of Chitty's Statutes, to two lines.] THE CIITMTNAL LAW. 451 the next preceding Article (whether finished or unfin- ished) ; ' or ^ {b.) any matter or thing, being in, against or under any building, under such circumstances that, if the build- ing were thereby set fire to, the offence would amount to felony ; or ' (c.) any forest, tree, manufactured lumber, square timber, logs or floats, boom, dam or slide on the crown domain, or on land leased or lawfully held for the purpose of cutting timber, or on private property, or on any creek, river, rollway, beach or wharf, so that the same is injured or destroyed ; or ' {(l.) any crop of hay, grass, corn, grain or pulse, or of any cultivated vegetable produce, whether standing or cut down, or any part of any wood, coppice or planta- tion of trees, or any heath, gorse, furze or fern. Article 664. recklessly setting fire to forests, etc. ' Every one is guilty of a misdemeanor, and liable to two years' imprisonment, who, by such negligence as shows him to be reckless or wantonly regardless of conse- quences, or in violation of a municipal law of the locality. '[R. V. Manning ,L. R. 1 C C. R. 338. It is a question for a jury what constitutes a buildinK.] Wlioro on the trial it was assumed that a wooden building, so burned that only a few rafters remained, and the sides and floors so injured that it was untenantable, was a building, the court on a case reserved set aside the conviction ; It. v. Liihadie, 32 U.C.Q.B. 429. '-II.S.C. c.l68,s.9. [2iA25Vict. c. 97,s.7. In R. v. a.W, L. R. 1 C. C. 11. 307, it was said that the legislature probably meant to enact that, if any person sets fire to any thing in a house liltely to sot fire to tlio house itself, ho should be guilty of felony, but that they had failed to say so. In that case A sot fire to goods in a house to spite tho owner, but with no intention to burn the Iiouso, and (as the jury were considered by the Court to havo found) not thinking it probable that what ho was doing would have that t eCTcct, and not being reckless on the subject. My impression is that the legislature said what it meant, but that the judge who reserved tho case (Blackburn, J.) was not followed by tho jury in tho directions that he gave.] •■"KS. C.c.168,8.12. *E.S. C.c.l68,s. 18;24&25Viot. C.97.S. 16. ... <• R. S. C. c. 168, 8. 11. 2a2 / 452 A DTdl'JST OF sets fire to auy forest, tree, manufactured lumber, square timber, logs or floats, boom, dam or slide on the crown domain, or laud leased or lawfully held for the purpose of cutting timber, or on private property, on any creek or river, or roll way, beach or wharf, so that the same is injured or destroyed. The magistrate investigating any such charge may, in his discretion, if the consequences have not been serious, dispose of the matter summarily, without sending the offender for trial, by imposing a fine not exceeding fifty dollars, and in default of payment, by the committal of the offender to prison for any term not exceeding six months, with or without hard labor. ^ Article 565. attempting to set on fire, etc. Every one is guilty of felony and liable to fourteen years' imprisonment in cases {a.) and (b.) and to seven years' imprisonment in cases (c.) and (d.) who "unlawfully and maliciously, by any overt act, attempts to set fire to any of the following things, under such circumstances that if the same were thereby set fire to the ofiender would be guilty of felony, that is to say : — ■' (a.) any building or any matter or thing that is in, against or under any building ; or '(6.) any mine or oil well ; or " (c.) any crop of hay, grass, corn, grain or pulse, or of auy cultivated vegetable produce, w^hether standing or cut down, or any part of any wood, coppice or planta- tion of trees, or any heath, gorse, furze or fern ; or >S.D. Arts. S78W), 380 (i). . 2 B under the direction of A arranges a blanket saturated with oil bo that if it is set on fire, the flame will be communicated to a building and then lights a match, holds it until it is burning well and then puts it down to within an inch or two of the blanket, when the match goes out. A attempts to sot fire to the building; It. v. Goodman, ^V.O. C. P. 338. 3 R. S. C. c. lf)8, g. 10 ; 24 & 25 Vict. c. 97, s. 8. * R. S. C. c. 168, 8. 20 ; 21 & 25 Vict. c. 97, s. 27. B R. S. C. 0. 163, s. 20 : 24 & 25 Vict. c. 97, s. 18. THE ClUMIXAL LAW. 453 {(l.) any Htack of corn, grain, pulso, tares, hay, straw, haulm or stubblo, or of any cultivated vegetable produce, or of furze, gorse, heath, fern, turf, peat, coals, charcoal, wood or bark, or any stere or pile of wood or bark. ' Aetihle 566. threats to burn, etc. ■^ Every one is guilty of felony and liable to ten years' imprisonment who sends, delivers or utters, or directly or indirectly causes to be received, knowing the contents thereof, any letter or writing threatening to burn or de- stroy any house, barn or other building, or any rick or stack of grain, hay or straw or other agricultural produce or any grain, hay or straw or other agi'icultural produce, in or under any building, or any ship or vessel. ^ Article 56Y. SETTING fire TO AND OTHER INJURIES TO HER MAJESTY'S SHIPS, DOCK-YARDS, ETC. * Every one is guilty of felony and liable to imprison- ment for life, who unlawfully and maliciously sets on fire or burns, or otherwise destroys or causes to be set on fire or burnt, or otherwise destroyed, ,> (a.) any of Her Majesty's ships or vessels of war, whether afloat, or building or begun to be built in any of Her Majesty's dock-yards, or building or repairing by contract in any private yard, for the use of Her Majesty ; or {h.) any of Her Majesty's arsenals, magazines, dock- 's. D. Art. 379. - R. S. C. c. 173, s. 8 ; 24 & 25 Vict. o. 07, 8. 50. ■"S. D.Art. 376. < R. S. C. c. 16S, g. 6 ; 12 Geo. 3, c. 24, s. 1. The latter statute applies to the realm and to all islands, countries, ports or places thereto belonging. By it the offender is liable to suffer death. 45-i A DIGEST OF yards, rope-yards, victnnlline^ offices, or any of the build- ings erected therein or belonging thisreto, or any timber or material there placed lor building, repairing or litting out of ships or vessels, or any of Her Majesty's military naval or victualling stores or other ammunition of war; or • (c.) any place or places where any such military, naval or victualling stores, or other ammunition of war, are kept, placed or deposited. ' AllTlCLE 568. SETTING FIRE TO SHIPS, AND OTHER INJURIES THERETO, AND TO LIGHTS, BUOYS, ETC. Every one is guilty of felony and liable to imprison- ment for life in cases (a.), (e.) and (/.), to fourteen years' imprisonment in cases (b) and (c.) and to seven years' imprisonment in cases {d.) and {g.) who unlawfully and maliciously * (a.) sets Rre to, casts away or in anywise destroys (i) any ship or vessel, whether the same is complete or in an unfinished state ; or ,. •' (ii) any ship or vessel, with intent thereby to preju- dice any owner or part owner of such ship or vessel, or of any goods on board the ^me, or any person who has underwritten or who underwrites any policy of insu- rance upon such ship or vessel, or on the freight there- of, or upon any goods on board the same ; ' (6.) by any overt act, attempts to set fire to, cast away or destroy any ship or vessel, under such circum- stances that, if the ship or vessel were thereby set fire to. cast away or destroyed, the offender would be guilty of felony ; or 1 S. D. Arts. 377 («.), (,-.), (y.), (A-.), (L), 878 (d), (e), m ( j ), (/.). » R. S. C. c. 168, s. 40 ; 24 & 25 Vict. c. 07, g. 42. 3 R. S. C. c. 168, 8. 47 ; 24 & 26 Vict. c. 97, s. 43. [This section and s. 42 are like dividing theft into two offences, theft, and theft with intent to injure the owner of the stolon goods, each offence being punished in the same way.] * R S. C. c. 108. s. 48 ; 2t & 25 Vict. c. 97, s. 44. THE ClUMrXAL LA W, 4«.'V ' (c.) places or throws in, into, upou, iii>ain8t or near any ship or vohscI, any •gunpowder or other explosive substance, with intent to destroy or damage? any shij) or vessel, or any machinery, workings-tools, goods or chattels, whether or not any explosion takes place, and wht^ther or not any injury is effected ; or - (d.) damages otherwise than by fire, gunpowder or other explosive substance, any ship or vessel, whether complete or in an uniinished state, with intent to destroy the same or render the same useless ; or ' (e.) masks, alters, removes or extinguishes any light or signal, or exhibits any false light or signal, with intent to bring any ship, vessel or boat into danger ; or (/.) does anything tending to the immediate loss or destruction of any ship, vessel or boat, and for which no punishment is hereinbefore provided ; or * {g.) cuts away, casts adrift, lemoves, alters, defaces, sinks or destroys, or does any act with intent to cut away, cast adrift, remove, alter, deface, sink or destroy, or in any other manner injures or conceals any lighthouse, light-ship, lloating or other light, lantern or signal, or any boat, buoy, buoy-rope, beacon, anchor, perch or mark used or intended for the guidance of seamen, or for the purpose of navigation. ' Every one who makes fast any vessel or boat to any such buoy, beacon or sea mark, is liable, on summary conviction, to a penalty not exceeding ten dollars, and in default of payment, to one month's imprisonment. ' R. S. C. c. 168, 8. 49 ; 21 & 25 Vict. c. 07, g. 45. •i R. S. C. c. 188, 9. 50 ; 24 & 25 Vict. e. 97, s. 46. ' R. S. C. c. 108, «. 51 ; 24 & 25 Vict. o. 97, s. 47. The word " maliciously " does not qualify the paragraph of section 51 represented by clause (e) " unlawfully mnsks, &o." ^ R. S. C. c. KW, s. 5i ; 21 & 25 Vict. o. 97, s. 48. ■ R. S. C. c. 168. 8. 53. 480 .1 l> 1(1 EST OF Article 569. INJURIES TO HER MA.IESTY'H VKSHELH— GOODH LIABLE TO SEIZURE — (iUSTOM HOUSES, ETC. ' Every one is guilty of felony, uud liable to imprisou- ment tor life, - who {a.) wilfully or maliciously Hhoots at, or attempts to destroy or damage, any vessel belonging to Her Majesty, or in the servic.'e of Canada ; or (h.) before or after the actual seizuro thereof, staves. breaks or in any way destroys any goods liable to seizure or forfeiture under any law relating to customs, trade or navigation ; or {c.) scuttles, sinks or cuts adrift any vessel, or wilfully and maliciously destroys or injures by fire or otherwise any custom house or other building, in which are depos- ited or kept any goods that have been seized, ibrfeited or bonded. , "Article 5*70. injuries by explosive substances. Every one is guilty of felony, and liable to imprison- ment for life in case («), and for fourteen years in case (6), who unlawfully and maliciously * {a.) by the exjOosion of gunpowder or other explosive substance, destroys, throws down or damages the whole or any part of any dwelling-house, any person being > R. S. C. c. 32, s. 213. = Art 17. . ..^ 3 S. D. Art. 377 (b), 378 (e). A8 to injuring ships by explosive substances, see Art. 568 (<'.) See also As to causint; explosions likely to endnnger life or property, Arts. 92, 93. As to offences committed by means of explosive substances involving or with intent to do bodily injury. Arts. 299-300. As to making explosive snbftanocs, or sending or carrying them by railway or on'Hbip- board, note 4 to Art. 299. * B. S. C. 0. 168, B. 13 ; 24 A 25 Viot. c. 97, e. 9. Till: Ch'fM/XAL LAW. 467 thon'in, or of any building, when^by tho lil'o oi' any person is oncbmufored ; or (b.) 'places or throws in, into, upon, under, ajfiiinst or near any building?, uny gunpowder or other exploHive Hubsiance, with int«'nt to destroy or damage any ])uild- ing, or any engine, machinery, working tools, fixtures, goods or chattels, whether or not any explosion takes place, and whether or not any damage is caused. INJURIES TO MANUFACTURES, MACHINERY, ETC. Every one is guilty oi' I'elony, and liable to imprison- ment for life in cases {a) (i), (ii) and (iii), and {h), and to seven years' imprisonment in cases (a) (iv) and (v), v;ho ■' (a.) unlawfully and maliciously cuts, breaks or de- stroys, or damages, with intent to destroy, or to render useless, (i.) any goods or article of silk, woollen, linen, cotton, hair, mohair or alpaca, or of any one or more of those ma- terials mixed with each other, or mixed with any other material, or any framework-knitted piece, stocking, hose or lace, being in the loom or frame, or on any machine or engine, or on the rack or tenters, or in any stage, process or progress of manufacture ; or (ii.) any warp or shute of silk, woollen, linen, cotton, hair, mohair or alpaca, or of any one or more of those ma- terials mixed with each other, or mixed with any other material ; or (iii.) any loom, frame, machine, engine, rack, tackle, tool or implement, whether fixed or movable, prepared for or employed in carding, spinning, throwing, weaving, ful- ling, shearing or otherwise manufacturing or preparing any such goods or articles ; or • R. S. C. c. 168. g. 14 ; 24 & 2i Vi:t. c. 97. s. 10. = S. D. Artf. 377(c), 380 (ri). ^ R. S. C. 0. 168, 8. 16 ; 24 & 25 Vict. o. 97, 8. 14. 458 A DIGEST OF ' (iv.) any machine or engine, whether fixed or movable, used or intended to be used for sowing, reaping, mow- ing, threshing, ploughing or draining, or for performing any other agricultural operation ; or (v.) any machine or engine, or any tool or implement whether fixed or movable, prepared for or employed in any manufacture whatsoever except the manufacture of silk, woollen, linen, cotton, hair, mohair or alpaca goods, or goods of any one or more of those materials mixed with each other, or mixed with any other material, or any framework-knitted piece, stocking, hose or lace ; or ^ (b.) by force enters into any house, shop, building or place, with intent to commit any of the offences men- tioned in clauses (a) (i), (ii) and (iii). ' ■■' Article 572. injuries to mines and oil wells. ^ Every one is guilty of felony and liable to seven years' imprisonment who unlawfully and maliciously (a.) causes any water, earth, rubbish or other substance to be conveyed or to run or fall into any mine, or into any oil well, or into any subterraneous passage communicating therewith, with intent thereby to destroy or damage such mine or well, or to hinder or delay the working thereof ; or (b.) with the like intent, pulls down, fills up or obstructs or damages with intent to destroy, obstruct or render useless, any airway, waterway, drain, pit, level or shaft of or belonging to any mine or well. This provision does not extend to any damage com- mitted underground by any owner of any adjoining mine ' 11. S. C. c. 168, s. 17 ; 21 A 25 Vict. c. 97, s. 15. [Some cases on the application of tliis section to imperfect mncliincs arc collected in FisherV Digest, pp. 25!)l-2593]. An appara- tus for manufacturing potash, consisting of ovens, kettles, tubs, etc , is not a " machine or engine '' within the meaning of 4 & 5 Vict. (P.O.) c. 26, s. 5 ; Ji. v. Doghirlu, 2 L. C. U. £55. - II. S. C. c. 168 8. 16 ; 2i & 25 Vict. c. 9" s. 14. » S. D. Art. 380 (c). * R. S. C. 0. 168, s. 80 ; 24 & 25 Vict. c. 97, s. 23. THE CBTMTXAL LAW. 459 or well in working the same, or by any person duly employed in such working. ' Article 573. injuries to machinery, etc., used for workinq mines — oil wells. ' Every one is guilty of felony, and liable to seven years' imprisonment, who, unlawfully and maliciously, {a.) pulls down or destroys or damages, with intent to destroy or render useless, any steam engine or other engine for sinking, draining, ventilating or working, or for in anywise assisting in sinking, draining, ventilating or working any mine or oil well, or any appliance or apparatus in connection with any such steam or other engine, or any staith, building or erection used in con- ducting the business of any mine or oil well, or any bridge, waggon-way or track for conveying minerals or oil from any mine or well, whether such engine, staith, building, erection, bridge, waggon-way or track is com- pleted or in an unfinished state ; or {b.) stops, obstructs or hinders the working of any such steam or other engine, or of any such appliances or apparatus, with intent thereby to destroy or damage any mine or oil well, or to hinder, obstruct or delay the work- ing thereof; or {c.) M^holly or partially cuts through, severs, breaks or unfastens, or damages, with intent to destroy or render useless, any rope, chain or tackle, of whatsoever material the same is made, used in any mine or oil well, or in or upon any inclined plane, railway or other way or other work whatsoever, in anywise belonging or appertaining to or connected with or employed in any mine or oil well, or the working or business thereof. •t^.D. Art. 380(c), (rf). 8 R. S. C. c. 16S, H. 31 ; 24 & 25 Vict. e. 07, s. 29. 460 A DIGEST OF ' Article 514. injuries to sea and river banks, and to works on rivers, canals, etc. ^ Every one is guilty of felony, and liable to imprison- ment for life, who, unlawfully and maliciously, (a.) breaks down or cuts down, or otherwise damages or destroys, any sea bank, sea wall, dyke or aboiteau, or the bank, dam or wall of or belonging to any river, canal, drain, reservoir, pool or marsh, whereby any land or building is, or is in danger of being, overflowed or damaged ; or {b.) throws, breaks or cuts down, levels, undermines or otherwise destroys, any quay, wharf, jetty, lock, sluice, floodgate, weir, tunnel, towing-path, drain, water-course or other work belonging to any port, harbor, dock or reservoir, or on or belonging to any navigable water or canal, or any dam or structure erected to create or utilize any hydraulic power, or any embankment for the support thereof. 'Article 5*75. OTHER injuries TO WORKS ON RIVERS AND CANALS. ^ Every one is guilty of felony, and liable to seven years' imprisonment, who, unlawfully and maliciously, (a.) cuts off, draws up or removes any piles, stone or other materials fixed in the ground and used for secur- ing any sea bank or sea wall, or the bank, dam or wall of any river, canal, drain, aqueduct, marsh, reservoir, pool, port, harbor, dock, quay, wharf, jetty or lock ; or (b.) opens or draws up any floodgate or sluice, or does - ' S. D. Art. 377 (d), W. - R. S. C. c. Hi8, s. 32 ; 24 & Vict. c. 97, p. 30. As to malicious injuries to works belong- ing to the Commissioners of the Harbor of Quebec, see 22 Vict. (P.C.) c. 32, s. 22. 3S. D. Art.380W,(/-). * R. S. C. c. 168, s. 33 ; 24 & 25 Vict. c. 97, s. 31. THE CRIMINAL LAW. 481 any other injury or mischief to any navigable river or canal, with intent, and so as thereby, to obstruct or pre- vent the cari-ying on, completing or maintaining the navigation thereof. . ' ' 'Article 576. injuries to bridaes, viaducts and toll-bars. ^ Every one is guilty of felony, and liable to imprison- ment for life, who unlawfully and maliciously pulls or throws down, or in anywise destroys any bridge, whether over any stream of water or not, or any viaduct or aque- duct, over or under which bridge, viaduct or aqueduct any highway, railway or canal passes, or does any injury with intent and so as thereby to render such bridge, viaduct or aqueduct, or the highway, railway or canal passing over or under the same, or any part thereof, dangerous or impassable. Article 57*7. injuries to rafts of timber and works used for the transmission thereof. ■' Every one is guilty of a misdemeanor, and liable to a fine or to two years' imprisonment or to both, who unlaw- fully and maliciously, {a.) breaks, injures, cuts, loosens, removes or destroys, in whole or in part, any dam, pier, slide, boom or other such work, or any chain or other fastening attached thereto, or any raft, crib of timber or saw-logs ; or (6.) impedes or blocks up any channel or passage in- tended for the transmission of timber. 'S. D. Art. 377(/-). • -• R. S. C. c. 168, s. .% ; 24 k 25 Vict. c. 97, s. 33, ■' K. S. C. c. 168, s. 54. As to unlawfully setting timber adrift, see R. S. C. c. 103, s. 41. (The Cullers' Act). 462 A DIGEtiT OF Article o78. preventing the saving of wrecked vessels OR WRECK. ^ Every oue is guilty of folouy, and liable to seven years' imprisonment, who prevents or impedes or endeavors to preA^ent or impede (a.) the saving of any vessel that is wrecked, stranded, abandoned or in distress ; or {b.) any person in his endeavor to save such vessel. Every one who prevents or impedes, or endeavors to prevent or impede, the saving of any wreck, is guilty of a misdemeanor and liable on conviction on indictment to two years' imprisonment, and on summary conviction before two justices of the peace 1o a fine of four hundred dollars or six months' imprisonment. "Article 579. injuries to fish ponds. •' Every one is guilty of a misdemeanor, and liable to seven years' imprisonment, who unlawfully and malici- ously, (a.) cuts through, breaks down, or otherwise destroys the dam, flood-gate or sluice of any fish-pond, or of any water which is private property, or in which there is any private right of fishery, with intent thereby to take or des- troy any of the fish in such pond or water, or so as there- by to cause the loss or destruction of any of the fish ; or {b.) puts any lime or other noxious material in any such pond or water, with intent thereby to destroy any of the fish that arc then or that may thereafter be put therein ; or 1 B. S. C. 81, 8. 36 (6), s. .'rr (c). "- S. D. Art. 380 (g), (h), (t). " R. S. C. c. 168, s. 34; 24 & 23 Vict, c, 97, s. 32. As to throwing lime, chemical sub- stance or poisonous matter, &c., or mill rubbish into waters frequented oy fish, see R. S. C. c. 95, s. 15 ; and as to injuries to places set apart for the propagation of fish, see Id. s. 21. THE CRIMINAL LAW. • .463 {c.) cuts through, breaks down or otherwise destroys the dam or floodgate of any mill-pond, reservoir or pool. . ' Article 580. injuries to railwa' . and railway property with intent, etc. - Every one is guilty of a felony, and liable to imprison- ment for life, who unlawfully and maliciously, and with intent to obstruct, endanger, upset, overthrow, injure or destroy any engine, tender, carriage, truck or vehicle, on any railway, or any property passing over or along any railway, {a.) puts, places, casts or throws any wood, stone or other matter or thing upon or across any railway ; or {b.) breaks, takes up, removes, displaces, injures or destroys any rail, railway switch, sleeper, bridge, fence or other matter or thing, or any portion thereof, belonging to any railway ; or (c.) turns, moves or diverts any point or other machinery belonging to any railway ; or {(l.) makes or shows, hides or removes any signal or light upon or near any railway ; ot (e.) does or causes to be done, any other matter or thing. , ■■;■ : Article 581. injuries to railways and railway property. ' Every one is guilty of a misdemeanor, and liable to ' S. D. Art. 377 {h). ■ R. S. C. c. 168, s. 37 ; 24 & 25 Vict. c. 97, s. 35. Provisions similar to those contaiued in Arts. 589, 581, occur in The Railway Act of the Province of Canada (C. S. C. c. 66) and the amendments thereto. See ss. 84, 85, 152, 153, 15t and 23 Vict. (P. C), c. 29, s. 6. As to violation of railway regulations by ofBccrs and servants of the railway, see Art. 153 note. = R. S. C. c. 168, s. 38. 401 A DIGEST OF five years' imprisonment, who unlawfully and mali- ciously (a.) breaks,* thro w^s down, injures or destroys, or does any other hurt or mischief to ; {b.) obstructs or interrupts the free use of ; or {c.) obstructs, hinders or prevents the carrying on, com- pleting, supporting or maintaining of any railway or any part thereof, or any building, struc- ture, station, depot, wharf, vessel, fixture, bridge, fence, engine, tender, carriage, truck, vehicle, machinery or other work, device, matter or thing of such railway, or appertaining thereto or connected therewith. * Article 582. obstructing railways. - Every one is guilty of a misdemeanor, and liable to two years' imprisonment, who, by any means, or in any manner or way whatsoever, or by any wilful omission or neglect, obstructs or interrupts, or causes to be obstructed or interrupted, or aids or assists in obstructing or inter- rupting, the free use of any railway or any part thereof, or any building, structure, station, depot, wharf, vessel, fixture, bridge, fence, engine, tender, carriage, truck, vehicle, machinery or other work, device, matter or thing of such railway, or appertaining thereto, or connected therewith. 1 S. D. Art. 383 (k). 2R. S. C. c. 168, s. 39; 24 i 25 Vict. c. 97, s. 3(5. [Chansringa signal so as to cause a train to go slower than it otherwise would is an obstructing : E. v. Uadfield, L. R. 1 C. C. R. 253 ; so is stretching out the arms as a signal ; 7?. v. Hnrdy, L. R. 1 C. C. R. 278. A rail- way not opened for public traffic may be obstructed : R- v. Hradford, Bell, C. C. 269.] A, without the consent of the railway company, takes a trolley or hand-car, places it on the track and with it runs upon the railway for several miles, at a time when ordinarily no train is running thereon. A obstructs the free use of the railway; R. v. Broii)neU,26 N. B. R. 579. THE CRIMINAL LAW. 4G6 Article 583. injuries to tackages in the custody of railways. ' Every one is guilty of a misdemeanor, and liable, on summary conviction, to a penalty not exceeding twenty dollars over and above the value of the goods or liquors so taken or destroyed, or to imprisonment (with or with- out hard labor) ■ for a term not exceeding one month, or to both, who (a.) bores, pierces, cuts, opens or otherwise injures any cask, box or package, which contains wine, spirits or other liquors, or any case, box, sack, wrapper, package or roll of goods, in, on or about any car, waggon, boat, vessel, warehouse, station house, wharf, quay or premises of, or which belong to, any Grovernment railway, or any rail- way company, with intent feloniously to steal or other- wise unlawfully to obtain or to injure the contents, or any part thereof; or {b.) unlawfully drinks or wilfully spills or allows to run to waste any such liquors, or any part thereof. ■* Article 684. INJURIES TO electric TELEGRAPHS, ETC. ' Every one is guilty of a misdemeanor, and liable to imprisonment for any term less than two years, who unlawfully and maliciously {a ) cuts, breaks, throws down, destroys, injures or removes any battery, machinery, wire, cable, post or other matter or thing whatsoever, being part of or being used or employed in or about any electric or magnetic ' R. S. C. c. 38, s. 62; 51 Viot. (D.) o. 29, s. 297. - The words in brackets do not occur in R. S. C. c. 38, s. 62. ^S.D. Art.383((7.)(W ^ R. S. C. c. 168, s. 40; 24 & 25 Vict. c. 97, s. 37. As to malicious injuries to submarine cables, see 51 Vict. (D.) c. 81, s. 4. 2h 4G6 .1 J) fa EST OF telej^raph, electric lii?kt, telephone or fire alarm, or in the working thereof, or for the transmission of electricity for other lawful purposes ; or (h.) prevents or obstructs, in any manner whatsoever, the sending, conveyance or delivery of any communica- tion by any such telegraph, telephone or fire alarm, or the transmission of electricity for any such electric light or for any such purpose as aforesaid. ' Every one who unlawfully and maliciously, by any overt act, attempts to commit any such offence is liable, on summary conviction, to a penalty not exceeding fifty dollars, or to three months' imprisonment, with or with- out hard labor. Article 685. < INJURIES TO MAILABLE MATTER — POST LETTER BAGS- LETTER BOXES, ETC. — BOOKS OF ACCOUNT — OBSTRUCTING MAILS. Every one is guilty of a misdemeanor, and liable to five years' imprisonment, '^ who (a.)"' wilfully and maliciously destroys, damages, de- tains or delays any parcel sent by parcel post, any packet or package of patterns or samples of merchandise or goods, or of seeds, cuttings, bulbs, roots, scions or grafts, or any printed vote or proceeding, newspaper, printed paper or book or other mailable matter, not being a post letter, sent by mail ; or (6.) * cuts, tears, rips or wilfully damages or destroys any post letter bag ; or (c.) '' wilfully or maliciously injures or destroys any » R. S. C. c. 163, s. 41 ; 24 & 25 Viot. c. 97, s. 38. « Art. 17. ^ P. S. C. c. 3), B. 91.' See nlso b. 97 ns to drunkenness and negligence on the part of mail carriers ; s. 98 a.s to toU-kuopor refusing to allow mail tc pass ; and s. 99 as to ferry- man refusing to carry over a mail at liis ferry. The offences are misdemeanors, < Id. 8.96. ftld.B. 107. THE CIllMINAL LAW. " Aftt street letter box, pillar box or other receptacle established by authority ol' the Postmaster-Ueueral for the deposit of letters or other mailable matter ; or (d.) ' beiii^- a postmaster, wilfully destroys, mutilates or obliterates any book containing or which ought to con- tain the record or account of the money orders issued or paid, or of the registered letters or other business of his oUice ; or (e.) " abandons, or obstructs or wilfully delays the pass- ing or progress of any mail, or any car, train, locomotive engine, tender, carriage, vessel, horse or animal employed in conveying any mail on any railway, public highway, riA'er, canal or water communication. •■'Article 58G. INJUllIES TO CATTLE. ^ Every one is guilty of felony, and liable to fourteen years' imprisonment, who unlawfully and maliciously kills, maims, wounds, poisons or injures any cattle. Article 587. attempting to injure cattle. ' Every one is guilty of a misdemeanor, and liable to a fine or imprisonment, " or both, in the discretion of the court, who unlawfully and maliciously attempts to kill, 1 R. S. C. c. 35 P. 101. : : '' sid. j,.05. ' , .:': ■ .■"-::- ;■ "•■,,., ,• •'S.D. Art. 378(,7). "F. D. Art.881 (.(). * R. S. C. c. 168, s. 22 ; 24 & 25 Viot. c. 97, s. 20. As to wilful injuries to trees gro>¥inB in reserves or forest parks in the Rocky Mountains, see R. S. C. c. 54, s. 78. •■ R. S. C. c. 168, s. 23 ; 24 & 25 Vict. c. 97, s. 21. [These sums are exclusive of consequential damage. A did injury to the amount of ^ f 1 to a hedge wliich it would cost £4 14s. 6d. to rcplocc. This is injury to the amount of £1, not to the amount of £5 14s. 6d. ; R. v. Whihman, Dear. 853 (upon 7 & 8 Geo. 4, 0. 30, s. 19).] 4*70 A /)/(,' KSr OF ' AllTI(!LK 502. IN.IUUIKH TO TREES, ET(.'., VVHKUEHOEVKK (HIOWINO. *Evory one is guilty of a inisdoinoiuior, and lia])lt», on summary conviciion, to a jH-nalty not cxcoiHliny fivo dollars ovor and abovo the amount ot'tho injury done, or to one month's imprisonment, with or without hard la))or, who uulawl'ully and mulicioutsly le, ou summary conviction, to a penalty not exceedin,i»" twenty dollars over and abov«' the amount of the injury done, or to three mouths' imprisonment with hard labor : Every one who, having- been twice convicted of any such offence, afterwards commits any such offence, is guilty of a misdemeanor, and liable to impriaoument for any term less than two years. ' Article 593. IN.IURIEH to VEGETABLE PRODUCTIONS GROWING IN GARDENS, ETC. " Every one is guilty of a misdemeanor and liable, on summary conviction, to a penalty not exceeding twenty dollars over and above the amount of the injury done, or to three months' imprisonment, with or without hard labor, who unlawfully and maliciously destroys, or damages with intent to destroy, any plant, root, fruit or 'S. D. Art.383(t). __^ !; 2R. S. C. 0.168, H. 24; 24&25Viot. c. 97,ti. 22. ," . '''f^• •''" cither against thiw or any other not or law." * S. D. Art. 383 (c). —- ^ -- - - 6 R. S. C. c. 168, s. 25 ; 24 A 25 Vict. c. 97, s. 23. 77//V CIIIMIXAL I. AW. 471 v*»j|^etiil)lt< production, prowiii'if in any yiirdt'ii, orchiird, nursery ground, liouso, hot-liouH«', greon-houso or lonsor- viitory: IiiV(>ry OIK* who, hiivinR. S. C. c. 172, s. 2; 12 & 13 Vict. c. 92, ss. 2, 3. The words "wantonly" and " unnecessarily" do not ocoiir in the latter statute ; the word " wantonly" was, however, used in the earlier English Statute 5 & 6 Win. 4, c. 59, s. 2. The cutting of the conibtj of cocks to fit them for fighting or winning prizes at exhibitions is within the statute; Mwiihy V. Manning L. E. 2 Ex. D. 307. So, also, is the dishorning of cattle ; Ford v. Wiley, L. R. 23 Q. B. D. 203 ; but the spaying of sows is not ; Zetfw v. Femior, L. R. 18 Q. B. D. 532. See, howe, er, the remarks of Hawkins, J., in Ford v. Wiley. The good to be attained must be reasonably proportionate to the suifering caused. No prosecution for any offence defined in Articles 604 and 605 shall be commenced except within three months next after the commission of the offence ; R. S. C. o. 172, s. 6. 2R.8.C.C. 172,8.3. 478 A Djaj'JST OF summary conviction before two justices of the peace, to a penalty not exceeding fifty dollars, or to imprisonment for any term not exceedini*' throe months, with or without hard labor, or to both, who builds, makes, maintains or keeps a cock-pit on premises belongini^' to or occupied by him, or allows a cock-pit to be built, made, maintained or kept on premises belonging to or occupied by him. All cocks found in any such cock-pit, or on the premises wherein such cock-pit is, shall be conliscated and sold for the benefit of the municipality in which such cock-pit is situated. Article 606. the conveyance of cattle. ' No railway company within Canada, whose railway forms any part of a line of road over which cattle ci,re con- veyed from one Province to another Province, or from the United States to or through any Province, or from any part of a province to another part of the same, or owner or master of any vessel carrying or transporting cattle, from one Province to another Province, or within any Province, or from the United States through or to any Province, shall confine the same in any car, or vessel of any description, for a longer period than twenty-eight consecutive hours, without unlading " the same for rest, water and feeding for a period of at least five consecutive •R. S. Co. 172,ss.8,ll. '■^ Cattle so unloaded shall bo properly fed and watered during such rest by the owner or porson having the custody thereof, or in case of his default in so doing, then by the rail- way company, or owner or master of the vessel transporting the same, at the expense of the owner or person in custody thereof; and such company, owner or master shall, in such case, have a lieu upon such cattle for food, care and cistody furnished, and shall not be liable for any detention of such cattle ; K. S. C. e. 172, s. 9. Where cattle are unladen from cars for the purpose of receiving food, Avator and rest, the railway company then having charge of the cars in which they have been trans- ported shall, except during a period of frost, clear the floors of such cars, and litter the- same properly with clean sawdust or sand before reloading them with live stock ; R. S. C. c. 172, s. 10. The proceeding for recovery of any penalty, under Articles 606 and 607, must be com- menced within one month after the commission of the offence ; K. S. C. c. 172, s, 13. TJIK CRIMINAL LAW. 479 hours, uiili'ss preveutod IVora so unlading and rurnishin<>- water and food by storm or other unavoidable cause, or b)" necessary delay or detention in the crossing' of trains. In reckoninii' the period of confinement, the time dur- ini:^ which the cattle have been confined without such rest and without the furnishing of food and water, on any connecting railways or vessels from which thev are re- ceived, whether in the United States or in Canada, shall be included. The foregoing provisions as to cattle being unladen shall not apply when cattle are carried in any car or vessel in Avhich they have proper space and opportunity for rest and proper food and water. Every railway company, owner or master of a vessel, having cattle in transit, as aforesaid, who knowingly and wilfully fails to comply with the foregoing provisions, is liable for every such failure to a penalty not exceeding one hundred dollars. AliTIOLE 60*7. SEAKCH OF PREMISES — PENALTY FOR REFUSING ADMIS- SION TO PEACE OFFICER. ' Every peace officer and constable may, at all times, enter any premises where he has reasonable grounds for supposing that any car, truck or vehicle, in respect whereof any company or person has failed to comply with the provisions of Article 606, or of the note thereto, is to be found, or enter on board any A'essel in respect whereof he has reasonable grounds for supposing that any com- pany or person has, on any occasion, so failed ; Every one who refuses admission to such peace officer or constable, is liable, on summary conviction, to a pen- alty not exceeding twenty dollars and not less than five dollars, and costs, and in default of payment, to imprison- ment for any term not exceeding thirty days. > R. S. C. c. 172, s. 12. 480 A PTC, EST OF CHAPTER L. OFFE}i(JES CONNECTED }Viri[ TRADE AND BREACHES OF contract. ' Article 008. conspiracies in restraint of trade. [ - A CONSPIRACY iu restraint of trade is an agreement between two or more persons to do or procure to be done any unlawful act in restraint of trade. Illwtration. •' The defendants, a body of shipowners, a' or alterinj^ the relations between any per- sons being' masters or workmen, or the conduct of any master or workman, in or in respect of his business or employment, or contract of employment or service ; and the expression " act " includes a default, breach or omission. Article 610. combinations in restraint of trade. - Every person who conspires, combines, agrees or arranges with any other person, or with any railway, steamship, steamboat or transportation company, unlaw- fully, (a.) to unduly limit the facilities for transporting, pro- ducing, manufacturing, supplying, storing or dealing iu any article or commodity which may be a subject of trade or commerce ; or {b.) to restrain or injure trade or commerce in relation to any such article or commodity ; or ^6'.) to unduly prevent, limit, or lessen the manufacture or production of any such article or commodity, or to unreasonably enhance the price thereof ; or {d.) to unduly prevent or lessen competition in the pro- duction, manufactur(% purchase, barter, sale, transporta- tion or supply of any such article or commodity, or in the price of insurance upon person or property. Is guilty of a misdemeanor and liable, on conviction, • R. S. C. c. 173, s. 13. Sco 38 k 39 Vict. c. 86, s. 3. The defendants, members of a trade union, conspire to injure a non-unionist workman by depriving him of his employ- ment. This is a misdemeanor, and is not for the purpobes of their trade combination within the statute ; It. v. Gibson 16 0. R. 704. -52Vict. (D)c. 41,s. 1. 2i 482 A Did EST OF to a poniilty not oxfcetuliiin" four thoiiKand dollars and not less than two hundivd dollars, or to impriHonmeiit lor any term not excooding two years ; and if a corporation, is liable on conviction to a penalty not exceeding ten thousand dollars and not less than one thousand dollars. ' AllTICTiE 611. '^CRIMINAri iniEAOHES OK CONTIIACT. ' Every one is guilty of a misdemeanor and liable, on indictment or on summary conviction bel'ore two justices of the peace, to a penalty not exceeding one hundred dollars or to imprisonment for a term not exceeding three months, with or without hard labor, who (a.) wilfully and maliciously breaks any contract made by him, knowing or having reasonable cause to believe that the probable consequences of his so doing, either alone or in combination with others, will be to endanger human life, or to cause serious bodily injury, or to expose valuable property, whether real or personal, to destructiou or serious injury ; or (h.) being under any contract made by him with any municipal corporation or authority, or with any company bound, agreeing or assuming to supply any city or any other place, or any part thereof, with gas or water, wil- fully and maliciously breaks such contract, knowing '^t having reasonable cause to believe that the probable consequences of his so doing, either alone or in combina- tion with others, will be to deprive the inhabitants of that city or place, or part thereof, wholly or to a great extent, of their supply of gas or water ; or (c.) being under any contract made by him with a rail- way company, bound, agreeing or assuming to carry Her » S. D. Art. 393 (rt) and (W. * It is not material whether any offence defined in this Article is> committed from malice conceived against the person, corporation, outhority or company with which the contract is made or otherwise ; R. S. C. c. 173, s. 18 ; 38 it 39 Vict. o. 86. s. 16. « R. S. C. c. 173, 8. 15 ; 38 & 89 Vict. c. 86, ss. 4, 5. rilK (lilMIXAL LAW, 483 Majesty's mails, or to carry passenyvrs or froight, or with Her Miij«'Hty, or any one on bc^hali" of ILt MaJeHty, iu coniu'ction with a Govornmcnt railway on which Her Majesty's mails, or passeng'cr.s or IVei^lit are carried, wil- iiilly and maliciously breaks such contract, knowinji' or havinii' reason to believ*^ that the probabh^ consequen<'e8 of his so doiny, either alone or in com])ination with others, will be to delay or prevent the runnin<»- of any locomotive engine, or tender, or freight or passenger train or car, on the railway. ' Every municipal corporation or authority or company which, being bound, agreeing or assuming to supply any city, or any other place, or any part thereof, with gas or water, wilfully and maliciously breaks any contract made by such muni(;ipal corporation, authority, or company, knowing or having reason to believe that the probable consequences of its so doing will be to deprive the inhabitants of that city or place or part thereof, wholly, or to a great extent, of their supply of gas or water, is liable to a penalty not exiieeding one hundred dollars. ■ Every railway company which, being bound, agree- ing or assuming to carry Her Majesty's mails, or to carry passengers or freight, wilfully and maliciously breaks any contract made by such railway company, knowing or having reason to believe that the probable consequences of its so doing will be to delay or prevent the running of any locomotive engine or tender, or freight or passenger train or car on the railway, is liable to a penalty not ex- ceediuo; one hundred dollars. Article 612. posting up copies of provisions respecting criminal breaches of contract— defacing same. ' Every such municipal corporation, authority, or com- '' » R. S. C. 0. 178, 8. 16. ^ 2 R. S. C. e. 173, s. 17. ...„4- --— — 3 R. S. C. c. 173, s. 19. 2i2 484 .1 hid EST OF pany, shall cauHo to be poNtcd up at th(< ^m works, or watcr-workH, or railway Ntations, an tho cawi^ may b«», be- loii^inrity or com- pany which makcH default in complyinj^ with such duty is liable lo a penalty not exceeding twenty dollars for every day during which such default continues : Every person unlawfully injuring, defacing or covering up any such copy so posted up is liable, on summary conviction, to a penalty not excec'diug ten dollars. ' AllTK^LE 618. INTIMIDATION. "' Every one is guilty of a misdemeanor and liable, on indictment or on ' summary conviction before two jus- tices of the peai^e, to a line not exceeding one hundred dollars or to imprisonment for a term not exceeding three months, who, wrongfully and without lawful authority, with a view^ to compel any other person to abstain from doing anything which he has a lawful right to do, or to do anything from which he has a lawful right to abstain ; {a.) uses violence to such other person, or his wife or children, or injures his property ; (h.) intimidates such other person, or his wife or chil- ' S. D. Art. 303 W). = R. S. C. c. 173, H. 12 ; 38 & 39 Viot. o. 80, .«. 7. •' The offender must not bo tried aumniarily if he objects to being so tried, and in that case the justices are to deal with thoonsons though the oflbnder wore charged with an indictable offence ; (R. S. C. c. 173, s. 12 (3). No person who is a master, or the father, son or brother of a master, in tho particular business incident to which the ofFonco is com- mitted can act as such justice ; (R. S. C. 0. 173, s. 12 (5). This same provision is in Tlie Trade Union Act ; (R. S. C. o. 131, s. 21), THK cniynx.\r. l.\w, isn divn, liy thr«'utN of iisinj^ vi<>l»Muo to him, her or any of tln'iii, or ol' injuring his property ; {v.) porNistt'iiil^ lollowH such other porsoii al>out from place to phioo ; {d.) hidcM any tools, clothes or other property owned or used l)y such other person, or deprives him or hinders him in the use thensof ; {e.) follows such other i)erson, with one or more other persons, in a disord«'rly manner, in or throuirh any street or road ; or (/) besets or watches th(! house or other place where such other person resides or works, or carries or. business or happens to be. Attending- at or near or approaching to such house or other place as aforesaid, in order merely to obtain or communicate information, is not deemed a watching or bi'setting within the meaning of this Article. AUTICLE G14. INTIMIDATION OF ANY PERSON TO PREVENT HIM FROM WORKING AT ANY TRADE. ' Every one is guilty of a misdemeanor, and liable to imprisonment for any term less than two years, who, in pursuance of any unlawful combination or conspiracy to raise the rate of wages, or of any unlawful combination or conspiracy respecting any trade, business or manufac- ture, or respecting any person concerned or employed therein, vmlawfully assaults any person, or, in pursuance of any such combination or conspiracy, uses aii} violence or threat of violence to any person, with a view to hinder him from working or being employed at such trade, busi- ness or manufacture. """^ ' R. S. C. 0. 173, g. 9 ; 24 & 25 Viot. c. 100, s. 41. 48G A DIGEST OF ' Article 615. intimidation of any peeson to prevent him dealing in wheat, etc. — unlawfully preventing seamen from working. Every one is guilty of a misdemeanor and liable, on summary conviction before two justices of the pea<'o, to imprisonment, with hard labor, for any term not exceeding three months, who (a.) - beats or uses any violence or threat of violence to any person, with intent to deter or hinder him from buy- ing", selling or otherwise disposing of any wheat or other grain, flour, meal, malt or potatoes or other produce or goods, in any market or other place ; or (b.) beats or uses any such violence or threat to any person having the charge or care of any wheat or other grain, flour, meal, malt or potatoes, whilst on the way to or from any city, market, town or other place, with intent to stop the conveyance of the same ; or (c.) ^ unlawfully and by force or threats of violence, hinders or prevents or attempts to hinder or prevent any seaman, stevedore, ship carpenter, ship laborer or other person employed to work at or on board any ship or vessel, or to do any work connected with the loading or unloading thereof, from working at or exercising any lawful trade, business, calling or occupation in or for which he is so employed ; or (d.) ' beats or uses any violence to, or makes any threat of violence against any such person, with intent to hinder or prevent him from working at or exercising the same, or on account of his having worked at or exercised the same. 1 S. D. Art. 251. 2 B. S. C. e. 173, s, 10 ; 24 & 25 Vict. c. 100, s, 39. =* 60 & 51 Vict. (D) c. 49, s. 1 ; 24 & 25 Vict . c. 100, s. 40. THE CRIMINAL LA \V. 487 Article OIG. INTIMIDATION OF AJCY PERSON TO PREVENT HIM BIDDING FOR PUBLIC LANDS. ' Every person is guilty of a misdemeanor, and liable to a line not exceeding four hundred dollars or to two years' imprisonment, or to both, who, before or at the time of the public sale of any Indian lands, or public lands of Canada, or of any Province of Canada, by intimi- dation, combination or unfair management, hinders or prevents, or attempts to hinder or prevent, any person from bidding upon or purchasing any lands so offered for sale. - Article 61*7. breaches of employer's duty to seamen — leaving seamen behind. [ ' Every one commits a misdemeanor who {a.) ' being the master or other person b<^longing to any British '' ship wrongfully forces on shore and leaves behind, or otherwise wilfully and wrongfully leaves behind, in any place on shore or at sea, in or out of Her Majesty's dominions, any seaman or apprentice belonging to such ship before the completion of the voyage for which such person was engaged, or the return of the ship to the United Kingdom" ; or {b.) ^ who being the master of a British ship, (i.) discharges any seaman or apprentice in any place » R. S. C. c. 173, s. 14. s - S. D. Art. 394. » 17 & 18 Viot. c. 104 ; R. S. C. c. 74. By section 114 of the latter Act it is provided that offenders may be tried suininarily before certain judges and magistrates therein men- tioned. As to punishment see Arts. 12 and 17. * R. S. C. c. 74, s. 65 ; 17 & 18 Vict. c. 104, s. 2011. '' Any Canadian foreign sea-going ship ; K. S. C. c. 74, s. 65. •> Canada ; R. S. C. c. 74. s. 05. ' R. S. C. c. 74, 8. 60 ; 17 & 18 Viot. c. 104, s. 307. 488 A DIGEST OF situate ' in any British possession abroad " (except the possession in which he was shipped) without previously- obtaining the sanction in writing, endorsed on the agree- ment of some public shipping master, or other officer duly sanctioned by the local ' government in that behalf, or (in the absence of any such functionary) of the chief officer of customs resident at or near the place where the dis- charge takes place ; (ii.) discharges any seaman or apprentice at any place out of Her Majesty's dominions without previously obtaining the sanction so endorsed as aforesaid of the British consular officer there, or, in his absence, of two respectable merchants resident there ; (iii.) leaves behind any seaman or apprentice at any place situate^ in any British possession abroad - on any ground whatever, without previously obtaining a certifi- cate in writing so endorsed as aforesaid, from such officer or person as aforesaid, stating the fact and the cause thereof, whether such cause be unfitness or inability to proceed to sea, or desertion or disappearance ; (iv.) leaves behind any seaman or apprentice at any place out of Her Majesty's dominions, on shore or at sea, on any ground whatever without previously obtaining the certificate endorsed in manner and to the effect last aforesaid, of the British consular officer there, or in his absence, of two respectable merchants, if there are any such at or near the place where the ship then is. ' The said functionaries must, and the said merchants may, examine into the grounds of such proposed dis- charge, or into the allegation of such unfitness, inability, desertion or disappearance as aforesaid in a summary way, and may for that purpose, if they think fit so to do, administer oaths, and may either grant or refuse such sanction or certificate as appears to them to be just. ' In the United Kingdom or ; R. S. C. c. 74, s. 66. - Other than Ciinada ; R. S. C. c. 74, «. 66. " The word " local ' is omitted in the Canadian Act, R. S. C. c. 74, s. 66. < 17 & 18 Vict. 0. 104, s. 207. THE CRIMINAL LAW. 489 ' [Upon the trial of auy person for any of the offences in this Article mentioned, it lies nj^on such person to pro- duce the sanction or certificate above mentioned, or to prove that he had obtained the same »reviously to having discharged or left behind such seaman or apprentice, or that it was impracticable for him to obtain such sanction or certificate. -Article 618. breaches of shipowner's duty to seaman under act of the united kingdom — sending unsea- worthy ships to sea. ' Every perso'n commits a misdemeanor (a.) who sends or attempts to send, or is a party to sending or attempting to send a British ship to sea in such unseaworthy state that the life of any person is likely to be thereby endangered, unless he proves that he used all reasonable means to insure her being sent to sea in a seaworthy state, or that her going to sea in such unseaworthy state was, under the circumstances, reason- able and justifiable, and for the purpose of giving such proof he may give evidence in the same manner as any other witness ; {b) who being the master of a British ship knowingly takes the same to sea in such unseaworthy state that the life of any person is likely thereby to be endangered, unless he proves that her going to sea in such unsea- worthy state was, under the circumstances, reasonable and justifiable, and for the purpose of giving such proof he may give evidence like any other witness. > R. S. C. c. 74, s. 67 ; 17 & 18 Vict. c. 104, s. 208. = S. D. Art. 395. - '^ "' ^ ^ 39 & 40 Vict. c. 80, ». 4. ., 490 A DKiEST OF Article 619. breaches of shipowners' duty to seamen under canadian act — sending or taking unsea- worthy ships to sea. ' Every one is guilty of a -misdemeanor who sends or attempts to scud or is a party to sending a ship, registered in Canada, to sea or on a voyage on any of the inland waters of Canada, or on a voyage from any port or place on the inland waters of Canada to any port or place on the, inland waters of the United States, or on a voyage from any port or place on the inland waters of the United States to any port or place on the inland waters of Canada, in such unseaworthy state ^y reason of over- loading or underloading or improper loading, or by reason of being insufficiently manned or from any other cause whatsover, that the life of any person is likely to be endangered thereby, unless he proves that he used all reasonable means to insure her being sent to sea or on such voyage in a seaworthy state, or that her going to sea or on such voyage in such unseaworthy state ws s, under the circumstances, reasonable and justifiable ; aid for the purpose of giving such proof, he may give evi- dence in the same manner as any other witness. Every master of a ship registered in Canada is guilty of a - misdemeanor who knowingly takes such ship to sea, or on a voyage on any of the inland waters of Canada, or on a voyage from any port or place on the inland waters of Canada to any port or place on the inland waters of the United States, or on a voyage from any port or place in the United States to any port or place on the inland waters of Canada, in such unsea- worthy state by reason of overloading or underloading or improper loading, or by reason of being insufficiently 1 62 Vict. (D) 0. 22, g. 3, — ^ - " A misdemeanor under this section sliall not be punishable upon summary conviction. THE CRIMINAL LA W. 401 manned or from any other cause, that the life of any per- son is likely to be endangered thereby, unless he proves that her going to sea or on such voyage in such unsea- worthy state was, under the circumstances, reasonable and justifiable ; and for the purpose of giving such proof he may give evidence in the same manner as any other witness. No prosecution under this Article shall be instituted except by or with the consent of the Minister ol Marine and Fisheries. ' -Article 620. beeaoh of duty by seamen to employers. ^ [Every seaman who has been lawfully engaged, and every apprentice to the sea service, commits an offence and is liable, upon summary conviction therefor, to the consequences stated in the schedule hereto, who (rt.) deserts his ship [i.e. leaves the ship without inten- tion to return and without just cause] ; {b.) * neglects or refuses, without reasonable cause, to join his ship, ■' or is absent without leave at any time within twenty-four hours of the ship's sailing from any port, either at the commencement or during the progress of any voyage, or is absent at any time without leave and without sufficient reason from his ship or from his duty, in a manner not amounting to desertion, or not treated as such by the master ; (c.) quits the ship without leave after her arrival at her port of delivery and before she is placed in security ; > As to penalty for overcrowding steamboats see R. S. C. c. 78, ss. 51, 62. - S. D. Art. 396. ^ Any seaman lawfully engaged or bound to any ship registered in any of the Provinces of Quebec '^Tova Scotia, New Brunswick, Prince Edward Island or British Columbia, ftod who has duly signed an agreement as retiuired by this Act, or any apprentice who has ejse- (suted indentures to the sea service in any of the said Provinces ; B. S. C. c. 71, s. 91 ; 1.7 & 18 Viet. c. 104, c 243. --.- — '--^- ^[rH'oStdfers, 2W. Rob. 125; 24L. J. (Q.B.)12.] - ' ' * Or to proceed to sea or on any voyage in his ship. 492 A DIGEST OF {{(l.) wilfully disobeys any lawful command ; (e.) continues wilfully to disobey lawful commands, or continues wilfully to neglect duty ; (/.) assaults any master or mate : {g.) combines with any other or others of the crew to disobey lawful commands, or to neglect duty, or to im- pede navigation of the ship or the progress of the voyage ; {h.) wilfully damages the ship, or embezzles or wil- fully damages any of her stores or cargo ; {i.) commits any act of smuggling ' whereby loss or damaffe is occasioned to the master or owner. - ScnEPULE. Clause. Imprisonment with or without liiird labor. Other forfeitures. («.) Not exceeding twelve weeks, aud not less than eight weeks with hard labor. Forfeiture of all or any part of clothes and ellects left on board, and of wages or emoluments then earned, also if such desertion takes place abroad (at the dis- cretion of the court) to forfeit all or any part of the wages or emoluments he may earn in any other ship in which he may be employed till his next return to Canada, ' and to satisfy any excels of wages paid to any substitute engaged in his place at a higher rate. (6.) Not exceeding ten weeks, and not lens than four weeks with, or without hard labor. Two days' pay, and for every twenty-four hours absence either a sum not exceed- ing six days' pay or expense of hiring a substitute. ' Of which he is convicted. - Provision is made for the punishment of like offences in respect to Government vessels by R. S. C. c. "1, s. 8. And b." seamen on inland waters by R. S. C. c. 75, s. 18. '•^ The punishments, which are those proscribed in R. S. C. c. 74, s. 91, differ from those prescribed in 17 k 18 Vict. c. 104, s. 243 only in fixing a minimum term of imprisonment. * " The United Kingdom " in 17 & 18 Vict. c. 104, s. 243 ; " any of the said Provinces " i.e. (Quebec, Nova Scotia, New Brunswick, Prince Edward Island and British Columbia) in R. S. C. c. 74, s. 91. THE CRJMTNAL LAW. 493 Schedule. Pini.a» IiiiprisonnHMil with or Uause. witlu.iit hard h.hor. Otherfdrfoitures. (c.) None. Sum not exceeding a month's pay. (d.) Not exceed injr four wcelia, it dill'erH IVom the staiidanl of Htroiigth, (lualiiy or purity laid down tlu'roin ; (ii.) if, wlicn sold, or ollcri'd or cxposcMl for sale, under or by a nan>o not rccojvni/od m the British or United States rharmacopdUii, but which is found in some other gt'nerally recognized pharnnicopo'ia or other standard work on nuilvria mediru, it dill'ers I'roni the stanchird of Htrength, quality or purity hiid down in such work; (iii.) if its strength or purity falls below the profi'ssed standard under which it is sold or oflered or exposed for sale ; (e.) ' The foregoing definitions do not apply (i.) if any matter or ingredient not injurious to health has been added to the food or drug because the same is required for the production or jireparation thereof as an article of commerce, in a state lit for carriage or consump- ;tion, and not fraudulently to increase the bulk, weight or measure of the food or drug, or to conceal the inferior quality thereof, if such articles are distinctly labelled as a mixture, in conspicuous characters, forming an insepar- able part of the general label, which shall also bear the name and address of the manufacturer ; (ii.) if the food or drug is a proprietary medicine, or is the subject of a patent in force, and is supplied in the state required by the specification of the patent ; (iii.) if the food or drug is unavoidably mixed with some extraneous matter in the process of collection or preparation ; (iv.) if any articles of food not injurious to the health of the person consuming the same are mixed together and sold or offered for sale as a compound, and if such arti- cles are distinctly labelled as a mixture, in conspicuous characters, forming an inseparable part of the general 1 R. 8. C. 0. 107, s. 2 (,/). - 2k 498 A DIGEST OF label, which shall also bear the name and address of the manufacturer. {/.) 'Milk is deemed to be adulterated in a manner injurious to health if any valuable constituent is ab- stracted therefrom, or if water is added thereto, or if it is the product of a diseased animal or cf an animal fed upon unwholesome food. (jO*.) ■ Vinegar is deemed to be adulterator', in a manner injurious to health if any mineral acid is added thereto, either during the process of manufacture or subsequently, or if it contains any soluble salt having copper or lead as a base thereof. {h ) ■* alcoholic, fermented or other potable liquors are deemed to be adulcrrated in a manner injurious to health if they contain any of the articles mentioned in the ' note hereto, or any article hereafter designated by the Gov- ernor-in-Council. •' Article 624. adulterating food or drug. "Every one who wilfully adulterates any article of food or any drug, or orders any other person so to do, is liable, " on summary conviction before two justices of the peace, for the first oflPence to a penalty not exceeding I R. S. C. c. 107, s. 15. SR.S.C. 0.107,8. 16. 3 R. S. C. c. 107, B. 17. ^Cocculus indicus, chloride of sodium (otherwise coininon salt), copperas, opium, cayenne pepper, picric acid, Indian hemp, strychnine, tobacco, darnel seed, extract of logwood. Falls of zinc, copper or load, alum, methyl alcohol and its derivatives, aniyl alcoiiol, and any extract or compound of any of the above ingredients : R. S. C. e. 107) sch. ^' Tiie Act also eont.-iiis a definition of agricultural fertilizers and of what constitutes adulteration thereof, and a general prohibition of the manufacture, sale, or offerinp for sale any adulterated agricultural fertilizer. The subject is further dealt with by R. S- C. 0. 108, which provides for the inspection of certain fertilizers and contains regulations as to their sale and penalties for offences in respect thereof. The provisioLj arc, how- ever, so special that it is not necessary to embody them in the text. « R. S. C. c. 107, 8. 22. _,-.___ __ I R. S. C. 0. 107, 8. 30 ; c. 34, 8. 113. : THE CRIMINAL LAW. 499 fifty dollars, and not less than ten dollars and costs, and for each subsequent offence to a penalty not exceeding two hundred dollars, and not less than fifty dollars and costs, if such adulteration is injurious to health ; and for a first offence to a penalty not exceeding thirty dollars and costs, and for each subsequent offence to a penalty not exceeding one hundred dollars, and not less than fifty dollars and costs, if such adulteration is not injurious to health. Article 625. selling adulterated food or drugs. ^ Every one who, by himself or his agent, sells, offers for sale, or exposes for sale, any article of food or any drug which is adulterated, is liable, - on summary con- viction before two justices of the peace, for a first offence to a penalty not exceeding fifty dollars and costs, and for each subsequent oflfence to a penalty not exceeding two hundred dollars, and not less than fifty dollars and costs, if such adulteration is injurious to health ; and for each such offence to a penalty not exceeding fifty dollars and not less than five dollars and costs, if such adulteration is not injurious to health. If the person accused proves to the court before which the case is tried that he did not know of the article being adulterated, and shows that he could not, with reason- able diligence, have obtained that knowledge, he is not liable to such penalty, but such articles shall be forfeited under the twenty-first section of ' The Adulteration Act. Article 626. ^''HEN selling skimmed MILK NOT AN OFFENCE. ^ It is not an offence under the article next preceding »R. S.C. 0. s. 23. - R. S. C. c. 11)7, s. 30 ; 0. 34, 8. 113. ,„-,^ — -^ __- — — 3 R. s. c. c. 107. ■ " :' ■, ' * R. S. C. c. 107, g. 15. 2k2 500 A DIGEST OF to sell skimmed milk as such if it is contained in cans bearing upon their exterior, within twelve inches of the tops of such vessels, the word " skimmed " in letters of not less than two inches in length, and served in measures also similarly marked, and if such quality of milk has been asked for by the purchaser. Article 621. having adulterated liquors in possession. ' Every compounder or dealer in, and every manufac- turer of, intoxicating liquors, who has in his possession, or in any part of the i^remises occupied by him as such, any adulterated liquor, knowing it to be adulterated, or any deleterious ingredient specified in the note (') to page 498, or added by the Governor-in-Council, for the posses- sion of which he is unable to account to the satisfaction of the court before which the case is tried, is deemed knowingly to have exposed for sale adulterated food, and is liable, for the first oflfence, to a penalty not exceeding one hundred dollars, and for each subsequent offence to a penalty not exceeding four hundred dollars. Article 628. attaching false label to food or drug. ^ Every person who knowingly attaches to any article of food, or to any drug, any label which falsely describes the article sold, or offered or exposed for sale, is liable to a penalty not exceeding one hundred dollars and not less than twenty dollars and costs. , 1R.S.C.C. 107,8.24. !-„_____„ :_._, 2R.S.C.C. 107,8. 25. • THE CRIMINAL LAW. 501 Article 629. other offences respecting sale of milk. ' Every one is guilty of a misdemeanor, and liable, on summary conviction, to a penalty not exceeding fifty dollars, and not less than five dollars, together with the costs of prosecution, and, in default of payment of such penalty and costs, to imprisonment with or without hard labor for a term not exceeding six months, who {a.) ' sells, supplies or sends to any cheese or butter or condensed milk manufactory, or the owner or manager thereof, or to any maker of butter, cheese or condensed milk, to be manufactured, milk diluted with water, or in any way adulterated, or milk from which any cream has been taken, or milk commonly known as skimmed milk; or {b.) 'supplies, sends, sells or brings to any cheese or butter or condensed milk manufactory, or to the owner or manager thereof, or to the maker of cheese or butter or condensed milk, any milk to be manufactured into butter or cheese or condensed milk, and keeps back any por- tion of that part of the milk known as strippings ; or (c.) ' knowingly sells, supplies, brings or sends to a cheese or butter or condensed milk manufactory, or to the owner or manager thereof, any milk that is tainted or partly sour ; or {d.) '' sells, sends or brings to a cheese or butter or con- ' 52 Vict. (D.) c. 43. Provisiona such as are contain(!(l in tlai.« Article arc not within the '.egislativc authority of a Provincial Legislature ; R. v. Wnaon, 17 0. R. 58. The person on whose behalf any milk is sold, sc ' ipplied or brought to a chceso or butter or condensed milk manufactory for any of urposes aforesaid, is liable for any such offence. -52 Vict. (D.) c. 43, g. 1. The fact that the milk, when tested by a competent person by means of a lactometer or cream gauge or some other proper and adequate test is substan- tinlly inferior in quality to pure milk; is primd farie evidence that it is diluted, adulter- ated or skimmed, or that the strippings have been kept back ; 52 Viot. (D.) c. 43, s. 7. ■'52Vict. (D.)c. 43, s. 2. <32Vict.{D.) 0.43,8. 3. "'~?r^'~ " . ' ,' ■ .; '•52Vict. (D.)c.43, s. 4. \ , V 602 A DIGEST OF densed milk manufactory, or to the owner or manager thereof, or to the maker of such butter or cheese or con- densed milk, any milk taken or drawn from a cow that he knows to be diseased at the time the milk is so taken or drawn from her. THE CRIMI^'AL LAW. 503 APPENDIX OF NOTES. NOTE I. (to Article 30.) [Hardly any legal doctrine is less satisfactory than the one embodied in this Article. The rule has been too lon<; settled to be disputed ; but on examining the authorities in their historical order, it appears to me to have originated, like some other doctrines, in the anxiety of judges to devise means by which the excessive severity of the old criminal law might be evaded. The doctrine as it now stands is uncertain in its extent and irrational as far as it goes. It is, besides, rendered nearly unmeaning by the rule that the presumption is liable to be rebutted by circumstances. The first authority on the subject is Bracton, in whose time the more recent doctrine appears to have been unknown, He says : — ''Uxor vero furi desponsata, non tenebitur ex furto viri, quia virum accusare non debet nee detegere furtum suum nee feloniam, cum ipsi sui potestatem non habeat, sed vir. Consentire tanien non debet feloniaj viri sni nee coad- jutrix ease, sed nequitiam et feloniam viri impedire debet quantum potest. In certia vero casibus de furto tenebitur, si furtum inveniatur sub clavibus uxoris, quas quidera claves habere debet uxor sub castodiA et curd suS. Claves videlicet disf^nsse suse, archse 8U£e, et scrinii sui : et si aliquando furtum sub clavibus istis inveniatur, uxor cum viro culpa- bilis erit Sed quid si res furtiva in manu uxoris inveniatur, numqnid tenebitur vir ? Non ut videtur, nisi ei expresse consenserit, vel cum rem ei warrantizaverit cum ipsum vocaverit ad warrantum, et tunc consen- sisse prsesuraitur nisi expresse dissentiat, vel nisi de eoprsesumatur quod fidelis sit eo quod societatem talis uxoris devitavit in quantum potuit. Item quid eritsi uxor cum viro conjuncta fuerit, vel confeasa quod viro suo consilium prsestiterit et auxilium, numquid tenebuntur ambo ? Imo ut videtur, quia vir potest teneri per se cum sit malus, et uxor poterit esse bona et fidelis et liberari. Item uxor mala per se et vir fidelis . Cum ergo uterque possit esse malus per se et alter eorum bonus, ita 60-t A DIGEST OF [poterit utenjue eorum, simul et conjunctim, esse nuilus sicut bonus. Solntio. Non igitur erit in onini cnsu uxor deliberanda i)ropter amsen- snm, auxiliun> et consensum, dosiout sunt parlicii)e8 in criniine, itaerunt j)articiDe3 in pa-na. Et licet ol)edire debeat viro, in atrocioril>n8 tamen suis latrociniis ei non erit obediendum. Poterit quidem vir ligare et tenere, et uxor eponte et non ooarta occidere, et ita ut vidotur tenetur malelicio uterque- Do concubina vero, vel familia donius, non erit sicut de uxore. Ipsi vero accusare tenentur, vel a servitio recedere alioquin videntur consentire." Tiie effect of this passage is that the wife is not bound to accuse her husband, nor is sbe to be regarded as accessory after the fact to a theft committed liy him merely because she receives the stolen goods, though sbe may be so regarded if she so conducts herself as to shew actual con- sent to the theft. Tlie passage does not contain a word about her right to steal with impunity in his presence. The next authority is Assise (27 Edw. 3), which is in these words: — " Un feme fuitarraine de c. q. el aver felon, emble ii s. de pain; q. disq. 1 le list per commandem't de cehiy qui fnit son baron a eel temps. Et les justices ne voilent prendre pur pite a sa conis, mes pristeront I'enquest ; per q. fut trove quel el' le fit per cohersion de son baron maugre le soe. jier que el' ala quite, et dit fuit q. p. commaml de baron sans auter coher- sion, ne serra nul manner de felon." &c. In this case the jury seem to have found actual coercion by the hus- bauti. Tlie dictum that the husband's command, he being absent, relieves the wife from guilt is clearly wrong according to more modern authoritie.'^. In Fitzherbert's Abridgment (A.n. 1565), Corone, 199, the case in the Book of Assizes is quoted in an abridged form : and Staund- forde (A.n. 1583), c. 19, quotes Fitzberbert, but adds a quicre to the dictum appended to the case, on which Fitzberbert relies. He does not, however, quote the case itself. Coke (3rd Inst. ch. xlvii. p. 108) says :— " A feme covert committed not larceny if sbe does it by the coertion of her husband; but a feme covert may commit larceny if she doth it without the coertion of her husband." He quotes 27 Ass. 40, and Staundforde, but does not say that the bare presence of the husband is to be regarded as coercion, and does not notice the dictum as to tlie husband's command. Bacon, upon the maxim "Necessitas inducit privileglum quoad jura privata," observes, " tlie second necessity is of obedience, and therefore where baron and feme commit a felony, the feme can neither be principal nor accessory, because the law intends her to have no will in regard of the subjection and obedience she owes to her husband." For this he quotes tlie passage in Staundforde already referred to, and Fitz- berbert (Corone, 160), which states, as the eflTect of a case, in 2 Edw. 3* that eight men and a woman being convicted of felony, and the woman declaring that she was the wife of one of the men, and the jury saying they knew nothing of it, the judge inquired of the bishop. Lord Bacon's proposition thus goes infinitely beyond his authorities. THE CRIMINAL LA W. 605 [Dalton (Justice, ch. dvii.) says :— '• A feme covert doth steal goods by tlie (M)mpulsioii or constraint of lier liusband- Tliis is no felony in lior." And he quotes Fitzherbert and tlie case qnoted by Fitzlierbert. He also quotes Bracton in a very nnintellii^ible and fragmentary way, and says that in murder and treason the husband's comjjulsion does not excuse the wife. As to murder, bis authority is Marrow, ' an author of the time of Henry VII. As to treason he quotes Fitzlierbert (Cor. loO). This pasi^ago refers to the case of a woman sentenced to be burnt for coining, res])ited on the ground of pregnancy, delivered of her child, and becoming pregnant again before she was burnt. Tli ' case does not say that she was married at all, and rather implies that she was not. Halo (1 P. C 45) says : — " If she (the wife) commit larceny by the coercion of the husband, she is not guilty (27 Ass. 40), and according to some, if it be by the command of her husband, which seems to be law if the husband be present, but not if her husband be absent at the time and place of the felony committed." " But this command or coercion of the husband doth not excuse in case of treason nor of murder, or in regard of the beinousness of those crimes." He quotes for this the passage in Dalton given above and the cases of Arden and Somerville as to treason, and T-ady Somerset as to murder. He goes on : " If the husband and wife together (;ommit larceny or bur- glary, by the opinion of Bracton (lib. iii. ch xxxii. s. 10), both are guilty," (Braoton says nothing of the sort,) " and so it hath been practised by some judges. Vide Da\i., nhi mpra,Q\\. nw" (Dalton does not say so.) "And possibly, in strictness of law, unless the actual coercion of the husband appears, she may be guilty in such a case ; for it may many times fall out that the husband doth commit larceny by the instigation, though he cannot in law do it by the coercion, of hiswifo; but tlie latter practice hath obtained, tint if the husband and wife commit burglary and larceny together, the wife ihall be acquitted, and the husband only convicted ; and with this agrees the old book (2 E. 3, Corone, 160). And this being the modern practice, and in favorem vitx, is fittest to be followed : and the rather because otherwise for the same felony the husband may he saved by the benetitof his clergy, and the wife hanged, where the case is within clergy, though I confess this reason is but of small value ; for in man- slaughter committed jointly by husband and wife the husband may have his clergy, and yet the wife is not on that account to be privileged by her coverture." " And accordingly in the modern practice where the husband and wife, by the name of his wife, have been indicted for a larceny or burglary jointly, and have pleaded to the indictment, and the Avife convicted, and the husband acquitted, merciful judges have used to reprieve the wife before judgment, because they have thought, or at least doubted, that the ' Lainbard's " Preface " begins, "To write of the office and duties of a justice of the peace, after H. Marrow," is like " bringing owls to Athens." In WiUes v. Bridger, 2 B. k Aid. 282, Marrow is said to hare been a Master in Chancery. 50G A DIGEST OF [indictment was void against the wife, she appearint: by the indictment to be a wife, and yet charj^od witli felony jointly witli her husband." " But this is not airreeable to law, for the indictment stands good against the wife, inasmucli as every indictment is as well several as joint." This extract probably gives the key to the confusion of the law upon this subject. It was thought hard that a woman should bo hanged for a theft for which her husband had his clergy, and accordingly a loophole was devised for married women, similar, as far as theft was concerned, to clergy for men. Hale's remark as to manslaughter shews how incomplete and unsystematic the arrangement was. Hawkins (1—4) says: If she ... be guilty of treason, murder or rob- bery, in company with, or by the coercion of, her husband, slie is punish- able as much as if she were sole." And Blackstone excepts '' treason and mala in se, as murder and the like." The recent cases on the subject are referred to in the Illustrations to the Article and in the foot note Surely, as matters now stand, and have stood for a great length of time, married women ought, as regards the commission of crimes, to be on exactly the same footing as other people. But owing partly to the harsh- ness of the law in ancient times, and partly to its uncertain and frag- mentary condition, it is disfigured by a rule which is tolerable only because it is practically evaded on almost every occasion where it ought to be applied. NOTE II. (to Article 50.) In R. V. Welham (1 Cox, C. C. 193), Mr. Justice Patteson, after con- sulting Baron Parke, said : " We are both clearly of opinion that there can be no inciting to commit a felony unless the party incited knows that the act in which he is to engage is a felony." Upon this Mr. Greaves (1 Russ. Cr. 84, note (o) ) asks : " How can tho guilt of the inciter depend upon the state of mind of the incited ? The inciting and the intention of the inciter constitute the offence." As I understr-nd the facts of R. v. Welham, Welham incited Hood to carry off corn which Hood supposed Welham to have a right to carry off. If this were so. Welham's offence, if any, was an attempt to commit a felony by an innocent agent, and not an incitement to commit a felony, which view would justify ^he language of the two eminent judges. A tells B to put into C's tea something which B supposed to be powdered sugar, but which is really arsenic. This is an attempt by A to murder C, but it is not an inciting B to commit murder. This view is strengthened by Williams' Case (1 Den. C. C. 39), in which it was held that to instigate a person to poison another under such circumstances that the instigator would have been an accessory before the fact if the poison had been given, was not an attempt to administer poison. . ^ ',".•,'■*-..-■/. TJfE CRfMINAL LAW. 507 NOTE III. (TO Article 182 ; Maintknancr) [It IS not without hesitation tlmt T have inserted tliese vap;ne and prac- tically obsolete definitions in this hoolt. As, however, maintenance and champerty hold a place in all the text books, I have not thoujiht it proper to omit all notice of them. A full account of the crimes thom- aelves, of the vaf;ueness of the manner in which they are defined, and of the reasons wliy they have so long since become obsolete, may be seen in the I'ifth Report of the Criminal Law Commissioners, pp. 34 — 9. The Coinmihsioners observe in conclusion : '' Prosecutions lor ofrences compre- hended under the general head of maintenance are so raro that their very rarity has been a protection against the disapproval of judges, and those alterations which a frequent recurrence of doubt and vexation would probably have occasioned . . . But althougli no cases have occurred where the doctrine of maintenance has been discussed in the Courts, il is by no means truo that this law has not been used ae the means of groat vexation. Instances of this have fallen within our own professional observation in the case of prosecutions commenced, although not persevered in." The commissioners recommend that all these offences should be abolished. The definition of barratry in particular is so vague as to be quite absurd ; and the statutory provision as to attorneys prac- tising after a conviction would be utterly intolerable if it had not been long forgotten. I should suppose that there is no other enactment in the whole statute book which authorizes any judge to sentence a man to seven years' penal servitude after a summary enquiry conducted by himself in his own way. These offences, as eufliciently appears from the preambles of the various statutes relating to them, are relics of an age when courts of justice were liable to intimidation by the rich and powerful and their dependents. As long as the verdict of a jury was, more or less, in the nature of a sworn report of local opinion, made by witnesses oflicially appointed to make such reports, intimidation must have been possible, and, in many cases, easy. Many statutes on this subject ' are still in force, and the law relating to it is to be found in 1 Hawkins, 454 The exceptions to the general rule, that a man is not to assist another in a quarrel in which the maintainor has no interest, are so numerous, and, in some cases, so vague {e.g. a man may assist his neighbor from charity), that no less vague proposition than the one in the text would faithfully represent the law. NOTE IV. * (TO Articles 200, 201.) - "' ' 7 ' These oflTences have, at least in modern times, been made the subject - ' 3 Edw. 1, c. 25 ; 13 Edw. 1, c. 49; 28 Edw. 1, c. 11 ; 20 Edw.^ 4 ; Ric. 2, c. 4 ; 7 Ric. 2, c. 5 ; 32 Hen. 8, c. 9. 508 A JJiaEUT OF [of few, if of any, proaeeutions. Tlio excessive severity of the judgment for misprision of treason no doubt escaiHjd notice wlien ff)rfeiture8 for felony were aboiialunl. Tlie ;}3 & 34 Vict, c. 'J3 takes no notice of mis- l)riHi()n8. Tlie definition of misprision of felony is extremely vague. I have found no authority as to what amounts to a concealment. The obliga- tion to discover treason to a jud>re or numistrale is mentioned by Hale. In early times, wlien the olfenco was commoner and more important, the oblijjation was very clearly set forth. "Si sit aliqnis qui alium noverit imle" [i.i'. of treason) "esse oulpabilem, vel in aliquo criminosuni, statim et sine intervallo aliquo acced^re debet sid ipsnm rejrem si possit, vel imlttero si venire noii possit ad aliciuem refjjis familiarem et omnia ei manifestare per ordinem. Nee onim debet morari in uno loco per duas noctcs vel per duos dies antequam personam regis videat, nee debet ail alicpia negotia ((uamvis urgentisKima se convertero, quia vix jjermittitur ei ut retro aspiciat." Hracton, Lib. iii., fo. 118 b. NOTE V. (to Auticlb 218.) The latter part of this Article is grounded partly upon general consider- ations and partly upon the case referred to in the Illustrations. Further illustrations of the same principle might easily be given. For instance, the publication of an edition of Juvenal, Aristophanes, Swift, Defoe, Baylo's Dictionary, Rabelais, Brant6me, Boccaccio, Chaucer, etc, cannot be regarded as a crime ; yet each of these books contains more or less obscenity for which it is impossible to offer any excuse whatever. I know not how the publication of them could be justified except by the consideration that upon the whole it is for the public good that the works of remarkable men should be published as they are, so that we may be able to form as complete an estimate as possible of their characters and of the times in which they lived. On the other hand, a collection of inde- cencies might be formed from any one of ,the authors I have mentioned, the separate publication of which would deserve severe punishment. In scientific matters the line between obscenity and purity may be said to trace itself, as is also the case in reference to the administration of jus- tice. It may be more difficult to draw the line in reference to works of art, because it undoubtedly is part of the aim of art to appeal to emotions connected with sexual passion. Practically I do not think any difhculty could ever arise, or has ever arisen. The difference between naked figures which pure-minded men and women could criticize without the slightest sense of impropriety, and figures for the exhibition of which ignominious punishment would be the only appropriate consequence, makes itself felt at ouce, though it would be difficult to define it. T ICE (' H / }ri X.\ L LA^ V. 009 NOTE VI. (to Articlks 232-235, 241-2.) [Tliore is n nood deal of dillicnlty in bringing into a dear and systeniatio form the provisions of the various statutes relating; to tlie snppre.'Sion of disorderly iiouses, and csptu ially ^'aniinjr-houses. I think, however, that the text represents their ell'ert witli substantial aci'uracy. The matter stands thus. The earliest Act upon the subject now in force is 33 Men. 8, c. 1>, " An Act for Maintonance of Artillery and Dcbar- rinj; of Unlawful (lames." Tiiis Act was intended to compel people to practise an^hery by makin;.' all other amusements uuIuaIuI, and it accordingly forbids by name bowls, (jiioits, tennis, and various other trames, (uirds and dice, and all other unlawful ganies prohibited by any of the statutes whi(;h it rei)eaU'd, as well as all other unlawful games to be subse(iuently invented. The expression " unlaw fui games " is nowhere defined, unless it means every amusement except archery. By tiio 10 Will. :'., c. 23, lotteries were forhidden. By the 12 (ieo. 2, c. 28, " the games of ace of hearts, pharaoh, basset and hazard," were declared to be lotteries, and, as well as what wo now call rallies, were I'orbiden under penalties. By tlie 13 Geo. 2, c 19, the same course was taken as to a game called passage, " and all other games invented or to be invented with one or more die or dice," backgammon only excepteil. By 18 Cieo. 2, c. 34, these enactment.s were extended to "a certain pernicious game called roulet or roly poly," and tliat game and " any game at cards or dice, already prohibited by law," were prohibited afresh. The 8 & 9 Vict. c. 109, repeals so much of the Act of Henry VIII. as relates to games of mere skill, and provides that upon any information or indictment for keeping a common ganjing-house "it shall besuflicient to prove" the matter stated in Article 235- This enactment was passed in order to dispose of doubts that apart from its provisions it would have been necessary to prove that the parties played at one of the games specifically prohibited by the Acts of Geo. II. or at one of the games of chance prohibited by the Act of Henry VIII. NOTE VII. (General Note to Part V.) The arrangement of this part, and in particular the composition of Chapters XXII. and XXIII. has been the most difficult portion of the task of preparing this Digest. No one who has not made a special study of the subject, can have any adequate notion of the extreme confusion of the authorities, or of the difficulty of extracting anything systematic and definite from of a number of scattered hints and isolated decisions upon particular cases — mostly relating to the law of homicide. Upo:a a full 510 A DIGEST OF [examination of tlie authorities on this subject it appeared to me that the law contained in them ought to be divided into four parts ; namely : — 1. Cases in which it is not criminal to inflict death, or bodily harm intentionally. These are the execution of legal sentences, Iteeping the peace, prevention of crime, self-defence, the use of lawful forcej consent and accident. Tlie expression " lawful force " is unavoidably vague. To enumerate every case in which the use of personal violence may be justified would be inconsistent with the scheme of this work. It would, for instance, be going beyond tlie limits of criminal law to enquire into the extent of the right of correction vested in parents, masters, captains of merchant ships, &c-, or of the right of the owner of a personal chattel to take it away from a trespasser, or to try to enumerate all the cases in which civil and criminal process may be executed by the use of force, and the conditions necessary to make it legal. I have accordingly confined myself to tiie general principles stated in Articles 256-257. 2. Cases in which the infliction of death or bodily harm by omissions is or is not criminal. Injuries caused by the omission to do an act which the negligent person is under a legal duty to do stand on the same foot- ing as injuries caused by unlawful acts. It is, therefore, necessary to de- fine the commoner and more important of the legal duties which tend to the preservation of life. I have, therefore, deduced them in Chapter XXlII.from the different decisions in which a violation of them has been held to occur. Of course the chapter does not contain an exhaustive list of all the duties which might tend to the preservation of life under particular circumstances, though I hope it notices the most important of them. o- Cases relating to homicide generally and apart from the distinction between murder and manslaughter. Such are the point of time at which a child becomes a human being, the degree of connection between an act and the death caused by it necessary in order to enable us to saj' that the agent has killed the deceased, and the case in which the act done is not the t^ole cause of death. Thus, if an unborn child receives an injury of which it dies before it is fully born, the infliction of the injury cannot be either murder or manslaughter. If it dies after it is fully born the in- fliction of the injury may be either justifiable homicide, accidental homicide, manslaughter, or murder, according to circumstances. This makes it possible to enumerate the cases in which homicide is unlawful, and so to give a specific meaning to the expression " unlawful homicide." 4. The definition of malice aforethought. Unlawful homicide must be manslaughter at least, and may be murder if it is accompanied by malice aforethought; and, after dealing with this, the transition to the less serious bodily injuries, felonious or otherwise, is easy. When this division of the subject is carried out it looks simple ; at least I hope so; but any one who will try the experiment of referring to the authorities will believe me when I assert that it cost me weeks of thought and labor to put the matter in this shape. I balieve, however, that it is now not very incomplete. THE CRIMINAL LA W. 511 & ■ u: "a S gu o 5 « a "i ■ ■4>J QQ B a o c a "a 03 g d ^ I- O ci H O — - gfg 1 a- 5P (U •^ kr Cm «-> c fe C3 4) d C J2 C A a H -o.S'r « o *eS H U) a .5 03 A A C c s a OQ e o 4> bo C - a V » ^ A a u p n , - -"■ 512 A DIGEST OF [The table on p. 511 shews, I think, that every imaginable kind of liomi- oide has been considered, and has been classified as lawful or unlawful in some part or other of Chapters XXII. XXIII. and XXIV. and if this be so the definitions of murder and manslaughter must also be complete. This table gives seven distinct kinds of homicide, as follows : — 1. Homicide by an act accompanied by a lawful intention to kill or hurt (Chapter XXII.) 2. Homicide by an act accompanied by an unlawful intention to kill or hurt (Article 278 (a).) 3. lloniicido by an act in itself lawful, and not accompanied by an intention to kill or hurt (Article 266). 4. Homicide by an act in itself unlawful, but not accompanied by an intention to kill oi hurt (Article 278 (cl.) 5. Homicide by an omission to discharge a legal duty amounting to culpable negligence (Chapter XXIll. ; Article 278 {b).) 6. Homicide bv an omission to discharge a legal duty not amounting to culpable negligence (Article 207). 7. Homicide by an omission to do an act not amounting to a legal duty (Article 268). Of these Nos. 1, 3, 6, and 7 are not unlawful in the sense of being crimi- nal. Nos. 2, 4, and 5 are unlawful. Every act falling within these defi- nitions must be manslaughter at least, and may be murder if it is accom- panied by malice aforethought, as defined in the next chapter, and is not provoked. Unless some kind of homicide can be suggested which is not compre- hended in one or other of these classes, the subject is exhausted in tliese chapters. XOTE VIII. (Article 279.) Defixition of Murder and Manslaugiitbk. This definition represents the solution at which I have arrived after much consideration of one of the m.ost difficult problems presented by the criminal law — the problem of giving in a short compass the result of a great number of decisions and statements by authoritative writers upon the subject of murder. I do not propose in this note to examine the history of the law on this subject, or to enter into any enqtiiry as to its merits and demerits. I propose simply to show that it is stated correctl}' in the text. It will be sufficient for this purpose to show, first, that the definition which I have given coincides with the theory laid down by the authorities on the sub- ject; and secondly, that all the points decided by the various cases relating to any form of homicide are comprehended in what I have said on the subject in the different Articles contained in Chapters XXII.— XXV., both inclusive, for the various decisions in question range over all TJIE CRIMINAL LA W. 513 [the subjects treated of in those chapters indiscriminately. The first of these points I shall try to establisli by sliowing that my definition of mnrder and manslaughter respectively will be found ujwn examination to be equivalent to what is stated in Cokes 3rd Institute, Chapters VII. and VIII., 1 Hale's Pleas of the Crown, pp. 411—502 (Chapters XXXI.— XLIL, both inclusive), and Foster's Discourse on Homicide (Crown Law, 255 — 337). The existing law on the subject is founded mainly upon these works, and the almost innuraeralile decisions bearing upon the subject are all applications of the theory whicii is there laid down. The decisions have been collectey an injury not intended to cause death, hut inflicted in the commission of a felony. Art. 279 (c). 742-740. Cases in which all the persons joining in a (common enterprise are responsible for the act of any one. See Chapter V. on accessories. Sect. 6. Killing hij a lavful art cnminalbj or improperhj performed. — Pafxes 747-752. A " lawful act criminally performed" is a contradiction in terms. If a police otlicer arrests a thief who neither resists nor runs away by ^ivinp; him a violent blow on the head, it is as absurd to call the blow a *' lawful act criminally performed," because the arrest might have been lawfully made, as it would be to call picking!; a pocket a lawful act criminally per- formed, because the thief had a right to walk along the street without picking pockets. A lawful act improperly performed can mean only culpable negligence in the performance of a lawful act. The cases in this section are accord- ingly superfluous. All of them fall directly under the definitions of murder or manslaughter given in Articles 279, 280. Thus, for example, in R- V. Smith (p. 749), A shoots B dead for pretending t-» be a ghost and frightening people. This was held to be murder. It would fall under Articles 278 and 279, thus :— It was unlawful homicide, because the deed was done by an act intended to cause bodily harm not falling within any of the exceptions specified in the Article. The homicide was with malice aforethought, because the intention was (if not to kill) at least to cause grievous bodily harm. In R. V. Hopley (751) a schoolmaster was convicted of manslaughter for flogging a boy with extreme severity. Here the homicide was unlawful, be(!ause tlie act which caused death was intended to cause bodily harm, and was not within the exceptions (see particularly Art. 260). If the prisoner had been indicted for murder (as Mr. Greaves thinks he ought to have been, and I agree with him), the question for the jury would have been whether or not his acts were such as, according to common knowledge, would cause death or grievous bodily harm. Sect. 6. Jndtc. Art. 2151 (note 2). Chapter II. relates to ninn.slaunhter ; pp. 78;?-S8'_*. Pane 7.h;j, The paj-'o hejiius hy defininj? nianslaunhter (see Art. 279). The rest of the pa^ie ia ahout accesHories in nuuiHlau^ihtor (see Art. 285). The rest of tho chapter is divided into six sections : — Sect. 1 I'rovocation; pj). 784-7iH). " 2. Mutual comhat ; pp. 790.7D8. " 3. Resistance to oliicers of ju.stice, &c.; pp. 798-848. " 4. Killing? hy an unlawfid act ; pp. 849-850. " 5. Lawful u(!t improperly performed ; pp. SoO-880. " G. Indictment and judgment ; pp. 880-882. The j?reater part of the matter of these six sections repeals what is contained in the chapter on murder. Sect. 1. Prorocativn. — Pages 784-790. This adds iiotliing to what is said on the same suhject in pp. 711-727. See Articles 280-2. Some cases are referred to in this section which contributed to the establishment of the general rule that to cause death hy the iniliction of injury intended to cause slij^ht harm only is manslaughter, e.g., A drowns a pickpocket, meaning only to duck him {Frai/'x axcf, p. 787) ; A seeing his son bleed from a light with another boy runs after the other boy and gives him a slight stroke with a stick, which happens to kill him (787 ; and see Foster, 294, for a careful discussion of the case). Sect. 2. Miilval Combat— Pagei 790-798. Repeats 727-732, See Art. 256 (rf.) Some of the cases refeh-ed to in this section relate also to the case of one person being killed by a blow intended for another. See Art. 279 («.) Sect. 3. Redstance to Arrest by Officers, (frc— Pages 798-848. Nearly the whole of this section is made up of reports of ca^es on the authority of diflerent persons to arrest in particular cases, on notice, &c. This seems to me to belong rather to the law of civil and criminal proce- dure than to the criminal law. One point of imjMjrtance is, however, no- ticed in Art. 280 (c.) Sect. 4. Killing in an unlawful, criminal, or wanton act.— Pages 849-856. Page 849. One person killed by violence intended for another. See Art. 279. 849-854. Negligent acts. Chapter XXIIL, and see Articles 278-279. 855-856. See Art. 266 (iii.) 622 A VrOEST OF [Sect. T). Killing h;/ n lawful Act imprtijnrly ;>cr/"('rm<;enco, Art. 270 (<.); and at 8(i4 are casos hoaring on tho dojrroa of romotonedd consistont with an act hoing tho cause of duath. Art. 275. SEcr. 0. Indiclmmt and Judgment. — Papes 880-S82. As to tho punishinont for nianslanj.;litor, see Art. 288. Tho rest is omitted as belonging to the subject of procedure. CllAPTEU III. EXCUSAIILK AND JUSTIFIAULK HoMlCIDE. — PagOS 883-898. As tho distinction between excusable and justifiable homicide is now unimportant (.see 24 c*c 2.5 Vict. c. 100, s. 7), I have not noticed it. Page 884, Sect. 1. Excusable homicide by misadventure, pp. 884-8. See Art. 2(i(J. 885-888. Gives over again what is said in Bfil, &c., as to manslaughter by negligence. 888— 8i)2, Sect. 2. Homicide in self-defence. See Art. 250 893—898, Sect. 3. Justifiable liomicide. Cliapter XXII. All the cases referred to in Russell on Crimes are thus disposed of in the difl'erent Articles of the Digest. Nothing short of studying tho 'con- tents of these 200 pages can give any one any notion, either of the amount of patient thought and sound good sense which have been employed ia the decision of particular cases by many generations of judges, or of the immense amount of material which has been gradually accumulated by reporters, or of tho helpless bewilderment, the utter incapacity to take general views, or to see the relation to each other of diflbrent principles, or to arrange an intricate question according to the natural distribution of the subject, which characterizes English text writers. The cases above referred to, as they stand in Russell, are like the stores at Balaklava, in the winter of 1854-5. Every thing is there, nothing is in its place, and the few feeble attempts at arrangement which hav3 been made serve only to bring the mass of confusion to light. NOTE IX. (TO Articles 280 (c), 281.) - ■ The following correspondence was published in the Times oi Nov. 21, 1867. It refers to the case of R. v. Allen and Others, convicted at the Man- chester Special Commission of the murder of Brett, a police officer, whom they shot in an attempt to rescue a Fenian prisoner from a police van in THE CniMlXAL L.WV. 52:{ [Mancliester. Tliero is no lo^iil ro|)ort of tlio case so far as I know, Imt, as will li« H(H^^, tim letter of tlm priHoner'H couiiHel, aiitl tlio ri'ply of Knnl (tlien Mr. .Iu8ti('(0 IJIarkbiirn aro Hubstanlially an arRunnmt and a jud^i- nient on a matter (tf very jrroat iniporianco. I liavi«, therefore, repnl)- lished them from the Timcx with Lord Ulackburn's iHjrniission. Statement submitted to Mr. .Fi hiu-h Bi-ackiiikn and Mr. .Tuhtice Mki.i.oi!. " Recina r. AixBN ano Othehh. " Fjxin the trial of Allen and Others for the murder of Sergeant lirett, two i)oints of law arose, under the foll(twing eircumstances :— "On the morning of the 11th September last, two men. who turned out afterwards to be Kelly and Deasy, were arrested hy a Manchester poliee- man, as he alleged, under section 'JIO of the Manchester Police Act l7 t^ 8 Viet. c. 40), which enacts that it shall be lawful for any constable belong- ing to the police force of the borough to take into custody, witliout a war- rant, all loose, idle or disorderly i)ersons whom he may find diHturbing the public f)eace, or in his own view committing an ofl'enco against this Act, or whom he shall have good cause to suspect of having committed, or being about to commit, any felony, misdemeanor, or breach of the peace, or to instigate or abet any such broach. "The two men, who gave the names of White and Williams, were taken before a magistrate on the 11th, and remanded until the 18th by a warrant, which staled the charges against them to be, not for suspicion of felony, on which charge they were arrested, but for ' felony,' and omitted to specify what felony, or other offence, they were charged with. They were brought up again on the 18th, when no evidence whatever was given upon the charge on which they were alleged to have been arrested, but an inspector of detectives from London, who stated he had a warrant against Kelly for treasonable practices, alleged to have been committed in Ireland, and a constable from Ireland, who was stated to have a similar warrant against Deasy, appeared, and on their application, without the production of either of the warrants, which, in fact, were not then backed as the statute required, the prisoners were again remanded for a week. "No warrant for such second remand was produced upon the trial, but it was stated that a warrant had been signed, a copy of that signed on the 11th inst., and had been destroyed by the police after the escape of the prisoners. " Kelly and Deasy were tlien placed in the prison van, for the purpose of being taken to prison, and on the way the van was attacked, the prisoners rescued, and Brett killed. " The two questions were : 1st, whether or not Kelly and Deasy were in legal custody ; and 2nd, if they were not in legal custody, whether the crime of killing Brett, in the actof rescuhig them, amounted to murder or manslaughter. 524 A DIGEST OF [" As to the first point, it would seem (1st) that the magistrate had no jurisdiction to commit for felony, no charge of felony having been made ; and (2nd) that the magistrate had no jurisdiction to entertain the charge of treasonable practices committed in Ireland, or to remand the prisoners upon such a charge. By the 11 & 12 Vict. c. 42, s. 22, justices are empowered to take the examination cf witnesses against [persons who are brought before them charged with an ofl'ence alleged to have been com- mitted in any county or place within England and Wales wherein they have not jurisdiction. By sect- 2 of the same Act they are empowered to issue their warrant to apprehend any one within their jurisdiction charged with having committed any crime or offence on the higli seas, or in any creek, harbor, &c., or any 'crimes or offences committed on lands beyond the seas for which an indictment may legally be preferred in any place within England or Wales.' By sect. 11, where an English warrant is backed in England, the offender, when apprehended, may be taken before the justice wlio issues the warrant, or, if so directed by the justice backing the warrant, before such last mentioned justice, or any other justice of the same county or place ; but by sect. 12, where an Irish war- rant is backed in England, the offender must be taken before the justice who granted the warrant, and there is no power to take him before the magistrate who has backed it. It would seem, therefore, that in this case the proper course would have been, in the case of Deasy, at least, for the magistrate to have backed the Irish warrant, and for the prisoner to have been taken, under the authority of the warrant so backed, to Ireland, and that the magistrate had no jurisdiction to examine any witnesses against Deasy, or to remand him upon the charge of felony. "Thirdly. — It is laid down in Coke's Second Institute, p. 591, when speaking of prison breaking, that a viittimus must ' contain the cause, but not so certainly as an indictment ought, and yet with such convenient certainty as it ma)' appear judicially that the oflence (prison breaking), tale judicium requirit aa pro alid proditione, viz., in personam domini regis, dr., or pro felonid, viz., pro morte tahs, &c. ;' and he lays it down that a viittimus pro Jelonid generally is bad. So again. Hale (P. C. vol. ii. p. 122), says that a mittimus ' must contain the certainty of the cause, and there- fore if it be for felony, it ought not to be gener&Wy pro felonid, but it must contain the especial nature of the felony briefly, as for felony for the death of J. S., or for burglary in breaking the house of J. S., , the felony is specifically described. " The second point, which appears to be of the greater importance, looking at the actual direction to the jury, and to the fact that they were not asked to find the existence, content?, or form of the warrant, is THE CRIMINAL LAW. 525 [whether, assuming the detention of one or both of the prisoners to have been illegal, the killing of Brett amounted to murder. " The first case on the subject is that of Sir H. Ferrers (Cro Car. 1571) who was arrested for debt, and thereupon Nightingale, his servant, in seeking to rescue him, as was pretended, killed the bailiflf, 'but because the warrant to arrest him was by the name of Henry Ferrers, Knight, and he never was a knight, it was held by all the Court that it was at variance in an essential part of the name, and they had no authority by that warrant to arrest Sir H-.Ty Ferrers, Baronet, so it is an ill warrant, and the killing of an officer in executing that warrant cannot be murder.' This case is also reported by Sir W. Jones (p. 34G), where it is said to have been held not to be murder either in the servant or in the prisoner, because the warrant was not good. " " The next case is that of Hopkin Hugget, which was tried in 1()G6, and is best reported in Kelyng (p. 59 ;3 ed, p. 93). In that case, Hugget and three otliers pursued three constables who had impressed a man, and demanded to see their warrant. The constables showed a paper which the prisoner said was no warrant, and thereupon they drew their swords and Hug and 57), says, that 'if a man's servant, or friend, or even a stranger, coming suddenly and see- ir'r him fighting with another, side with him and kill the other — or, E eing his sword broken, s^end him another wherewith lie kills the other — he is guilty of manslaughter only. Yet in this very case, if the person killed were a bailiflP, or other otlicer of justice, resisted by the master,&c., in the execution of his duty, such friend or servant, &c., are guilty of murder, whether they knew that the person slain were an officer rr not.' " For these and other reasons, we are of opinion that the points raised in this case are of such a grave and serious character as to demand further discussion and consideration, and that they ought only to be decided after full and deliberate argument before the Court of Criminal Appeal. - ^ - " W. DiGBY Seymour, Q.C. " MiOTAKL 0'Briev,S.L. " Ernest .Tones. " James Cottingham. " Lewis W. Cave." ■ft>. ■ 528 A DIGEST OF [Reply of Mr. Justice Blackbvrx. " November 20, 18G7. " Dear Mr. Seymour, " Mr. Justice Mellor and I have received and carefully pursued the paper signed by you, my brother O'Brien, and !Mr. Cave. " It contains nothing that is new to us, but it puts {ill the authorities in the light most favourable for your clients, and I need not say that it is a great satisfaction to us to think that nothing has been overlooked which could bear on so grave a questii n. " The Legislature have by the 11th and 12th of Victoria, cap. 78, cast upon the presiding Judges the very disagreeable and invidiou^i duty of determining whether tlieir own view of tlie law at the trial is or is not so questionable as to justify an appeal. If they refu.so to reserve any point made, it is still open to the pri.soners to appeal to the equitable considera- tion of the Sovereign, but no appeal lies to any court of law. " In the present case, my brother Mellor and I considered the points raised before us on the trial, and entertained no doubt that the direction which we then gave was strictly according to law. We, therefore, re- served no question for the Court of Appeal at the time, but simply post- l)oned our final determination on the subject until we had the means of referring to the authorities and considering the case more at leisure. We have now considered the auihorities, and have consulted the other Judges, not with a view of dividing our responsibility, nor in order to oV)tain a judicial opinion from them which they could not give on a point not regularly before thoin, but because, in a case so serious, we were very anxious to have the best advice and assistance that we could obtain for our guidance. I do not say, that if the result of such consulta- tion and research had been to lead to the conclusion that there was doubt enough to justify a further appeal, it would have relieved us from a most painful responsibility. I regret to say that the result has been to satisfy us that the law is too clear to justifying us in reserving any point for tho consideration of the Court of Criminal Appeal. " Entertaining that opinion, we have officially informed the Secretary of State for the Home Department that there will be no further appeal to a court of law, and that it is now for Her Majesty's Government alone to determine what shall be done with tho convicts. This decision of ours is final ; but as a satisfaction to you and the other Counsel for the prisoners, I will briefly state the reasons which have i.i- duced us to think the law too clear for argument. When a constable, or other person properly authorized, acts in the execution of his duty, the law casts a peculiar protection around him, and consequently, if he is killed in the execution of his duty, it is in general murder, even though there be such circumstances of hot blood and want of premeditation as would in an ordinary case reduce the crime to manslaughter. But where the warrant under which the otficer is act- ing is not suflacient to justify him in arresting or detaining prisoners, or THE CRIMINAL LAW. 529 [there is no warrant at all, he is not entitled to this peculiar protection, and consequently, the crime may be reduced to manslaughter when the ofl'ence is committed on the sudden, and is attended by circumstances affording reasonable provocation. ''The cases which you have cited are authorities that where the affray is sudden, and not premeditated, when, as Lord Holt says in R. v. Tooley (2 Lord Kaymond, 1300), * it is acting without any precedent malice or apparent design of doing hurt,' the mere fact that the arrest was not war- ranted may be a sufficient provocation. "But in every one of these cases the affray was sudden and unpre- meditated. "In the present case the form of warrants adopted may be open to objection, and probably might, on application to the Court for a writ of habea!>, have entitled the prisoners to be discharged from custody ; but we entirely agree with tlie opinion of Lord Hale (2 Pleas of the Crown) that, though defective in form, the gaoler or officer is bound to obey a warrant in this general form, and consequently is protected by it. This is a point tir' which, had the affray been sudden and unpremeditated, we probably should have thought it right to reserve. " In the present case, however, it was clearly proved that there was on the part of the convicts adeliberate, pre-arranged conspiracy to attack the police with fire-arms, and shoot them, if necessary, for the purpose of rescuing the two prisoners in their custody, and that they were all well aware that the police were acting in obedience to the commands of a justice of the peace, who had full power to remand the prisoners to gaol if he made a proper warrant for the purpose. It was further manifest that they attempted the rescue in perfect ignorance of any defect in the , warrant, and that they knew well that if there was any defect in the warrant, or illegality in the custody, that the courts of law were open to an application for their release from custody. We think it would be monstrous to suppose that under such circumstances, even if the justice did make an informal warrant, it could justify the slaughter of an officer in charge of the prisoners, or reduce such slaughter to the crime of man- • slaughter. ; "To cast any doubt upon this subject would, we think, be productive of the most serious mischief, by discouraging the police in th3 performance of their duties, and by encouraging the lawless in a disregard of the authority of the law. " We feel bound, under these circumstances, to decline to take a course which might lead to the belief that we considered the matter as open to ■doubt. V^ "CouN Blackburn." 2m 530 A DIGEST OF NOTE X. (to Chaiter XXXT.) LIBEL. [The statement of the law of libel contained in this chapter is, I believej. complete, though it is very short in comparison to the standard works on the subject. Folkard's edition of Starkie on Slander and Libel consists of 775 large 8vo pages, besides an apiiendix of statutes. It contains much other matter besides a definition of the crime of libel ; but that definition and the ex- planation of the ofl'ence iteelf, fill more than 150 pages. The greater part of this mass of matter consists of illustrations, but something is also due to the singularly complicated manner in which the law has grown up. The word " malicious " in reference to the oflence of libel has been, elaborated by the judges into a whole body of doctrine on the subject in the same sort of way as the words "malice aforethought" in the definition of murder. The process was of this sort. Malice was first divided into malice in fact and malice in law — malice in fact being personal spite, and malice in law being defined to be " a wrongful act done intentionally, and with- out just cause or excuse." Inasmuch as the publication of a libel must always be intentional, and inasmuch as the Courts held that to publish defamatory matter of another was, generally speaking, a wrongful act, the result of this was that every publication of defamatory matter was a crime, unless there was some just cause or excuse for it. What amounts to a "just cause or excuse" was decided by a multitude of cases. The phraseoloej" employed in their decision has been as follows. Defamatory matter which it was considered lawful to publish has been described as a " pri- vileged communication." This " privilege " has been regarded as rebut- ting the presumption of malice arising from the fact of publication ; and it has further been divided into absolute privilege and qualified privi- lege — absolute if it justifies the publication, whatever may be the state of mind of the publisher; qualified if it justifies such publication only under particular circumstances, as, for instance, when the publisher in good faith believes the defamatory matter to be true, when the defamatory matter actually is true, and its publication is for the public good, &c. The law thus falls into the singular condition of a see-saw between two legal fictions. Implied Malice on the one hand, and privilege absolute or qualified on the other. I will give a single instance of the intricacy to which this leads. A writes of B. to C, " B. is a thief." Here the law implies malice from the words used. It appears that B was a servant, who had been employed by A, and was trying to get into C's employment, and that A's letter was- THE CRIMINAL LAW. 531 [in answer to an enquiry from C- Here tlie occasion of publication raises a qualified privilege in A, viz., the privilege of saying to C that B is a thief qualified by the condition that A really thinks that he is one, and the qualified privilege rebuts the implied malice presumed from tlie fact of publishing the defamatory matter. B, however, proves not only that he was not a thief, but that A must have known it when he said that he was. This raises a presumption of express malice, or malice in fact in A, and proof of tho existence of express malice overturns the presump- tion against implied malice raised by the proof of the qualified privilege* This machinery of express and implied malice and qualified and absolute privilege is only a roundabout and intricate way of saying that as a general rule it is a crime to publish defamatory matter ; that there are, however, certain exceptions to that rule by virtue of which it is not a crime to defame a man — (a.) If the defamatory matter is true, and its publication is for the public good. (6.) Although the defamatory matter is false, (i.) if tho libeller in good faith believes it to be true, and publishes it for certain specified reasons, (ii.) Although he knows it to be false, if he publishes it in a parti- cular character. By working out this scheme, and stating in general terms that the publication of a libel is always malicious unless it falls within one or more of the specified exceptions, the intricate fictions about malice in law and in fact, and absolute and qualified privilege, may be dispensed with. They are merely the scaffolding behind which the house was built, and now that the house is convenient and proximately complete the scaffold may be taken down. NOTE XI. (to Aktic3lb 355, ox Possession in relation to the Law of Larceny). I do not think it would be possible to assign to the expressions ''pos- session," " actual possession," " constructive possession," " legal posses- sion," senses w hich would explain and reconcile all the passages in which these phrases occur in works of authority. Some of them indeed are absohitely contradictory. Thus is it said that the taking in larceny must be a taking out of the possession of the owner. It is also said that the owner retains the legal possession notwithstanding the larceny. If both of these propositions were true, it would follow that larceny could never be committed at all. Again, we are told on the other hand that the taking in larceny must be a taking otit of the possession of the owner, the inference from which would naturally be that when a thing is out of tiie owner's possession it cannot be stolen. We are then told, in order to avoid this conclusion, that a thing is always in its ovvner'a possession ; so that a box of plate at the bottom of the 2m2 532 A DIGEST OF [Tliames, thini^s of the existence of which the owner is not aware, as money vested in him an executor, and whicli witliout his Icnowledge is in the actual custody of another person, ' or a dead rabbit in Iiis wood, are all in the owner's possession and capable of bein^ talien out of it. This way of statin}:? the matter makes the assertion that the takinjj; in larceny must be a taking out of the owner's possession insi};nificant. If, from the nature of the case, every taking must be a taking out of the possession of the owner, it is impossible to see how the takings which do, differ from those wliich do not, constitute larceny. All men beinsi mortal, it is useless to define an Englishman as a mortal man living in England. However, though it is impossible either to justify tlie manner in which tlie word " possession" is used, or to free it entirely from the li(!tiotis with which it has been connected, it is, I think, not impossible to define it in sucli a manner as to express all the distinctions which it is intended to mark in language differing very slightly, if at all, from that which has generally been used upon the subject. As I have shewn in the articles on theft, and in the notes upon them, there are five different ways in which tlieft can be committed, viz.: 1. By taking and carrying away goods which do not belong to the thief from any place where they happen to be. 2. By converting property entrusted by the owner to a servant. 3. By obtaining the possession of property (as distinguishod from the right of property) from the owner by fraud with intent to convert it 4. By converting property given by the owner to the thief under a mistake. 5. By converting property bailed to the thief. It will be found upon consideration that the distinctions between these cases all arise out of the doctrine of possession, but it is, I think, less generally perceived that the important point is not the taking out of the possession of the owner, but the taking into the possession of the thief. The five cases in question may be thus arranged : — In No. 1 (common larceny) the thief has neither the poscession nor the custody of the stolen property at the time when the theft is committed, and it id immaterial whether the owner has it or not In No. 2 (larceny by a servant) the thief at the time of his offence may have either the custody or the possession. If he has the custody his offence is theft If he has the possession hia offence is embezzlement In No. 3 (larceny by trick) the thief obtains the possession by a mis- take, caused by bis own fraud. In No. 4 (larceny by taking advantage of a mistake) the thief receives the possession by a mistake not caused by his own fraud. ' A. pat 900 guineas in a secret drawer in a bureau and died. B., her son and executor, lent the bureau to his brother C, who took it to India, kept it there for several years, and brought it back. B. then sold it to D., who gave it to £. to repair, who found the money. This was held to be such a taking by E. out uf the possession of A. as to constitute laroeoy ; Cartioright v. Green, 8 Ves. 405. THE CRIMINAL LA \V. 533 In No. 5 (larceny by a bailee) the thief receives the possession under a contract of bailment- Besidos this view of the subject the doctrine of possession is important in relation to procedure, and in lliat case the matter to be considered is not tho possession of the thief but the possession of the owner. It is necessary in indictments for tlieft that the ownership of the stolen pro- perty should be correctly stated, and as possession constitutes special ownership (at all event'J, as against a thief) it is important, with a view to this subject, to understand what possession implies. Passing from the law upon this subject, let us examine the facts to which the law applies — the different relations which, as a fact, exist between men and things— in reference to the common use of language. The most obvious case of possession is that of a person who holds some- thing in his hand. But it must appear upon the slightest consideration that neither this nor any other physical act whatever can be accepted as more than an outward symbol of the state of things which the word denotes. Unless the article possessed is very small, part of it only can be held in the hand, trodden on by the foot, or so dealt with by any other part of the possessor's body as to exclude a similar dealing with it by others. It would, however, I think, be felt by every one that neither actual bodily contact with an object, nor even exclusive bodily contact with it, was essential to what, in the common use of language, is meant by pos- session. No one would think of using different words to express the relation of a man to a coin clenched in his list, to a pocketbook in his pocket, to a portmanteau of which he carried one end and a railway porter the other, to a carriage in which he was seated whilst his servant was driving it, to a book on the shelves of his library, and to the plate in his pantry under the charge of his butler. He would, in the common use of language, be said to be in possession of all these things, and no one would feel any difficulty in perceiving the correctness of the expression even if it were added that ho was not the owner of any one of them, that some had been lent, and others let to hire to him. On the other hand, any one but a lawyer would be surprised at the assertion that a man, whether the owner or not, was in possession of a watch which he had dropped into the Thames, of sheep which had been stolen from his field and driven to a distance by the thief, of a dead grouse which, having been wounded at a distance from his moor, had managed to reach it and die there without his knowledge or that of any other person. The common feature of all the cases to which the word "posses- sion " would obviously be applicable is easily recognized. It is to be found in the fact, that the person called the possessor has in each instance the power to act as if lie were the owner of the thing possessed, whether he actually is the owner or not. Several of the illustrations given, however, shew that though this is one of the things which the word conveys, it is not the only thing conveyed by it. The butler in charge of the plate, the porter helping to carry the pormanteau, the 684 A DIGEST OF [coaolimnn who \h driving tlie coacli, have the physical power of actinp us tlio owner of timse tliinps as miicli as their master or employer. Indeed, in two of the tlirce cases their physical control over the ohject is more direct than his. The difference is that the circnmstances are such as to raise a presumption that their intention is to act under the orders of their superior, and that he (at least for the present) has no definite HUjierior whose orders he intende to oliey. Take, for instance, the case of a dinner party ; there is no visible difference between the master of the house and his guests ; each uses the article which he requires for the moment, and they are, from time to time, removed from place to place by the servants ; as, however, the master retains throughout not merely the lepal riglit to dispose of them absolutely, but the immediate means of enforcing that right if from any strange circumstance it should become necessary to do so, the assertion that the plate is in his possession, and that his guests and servants have merely a permission to use it under his control, has a plain meaning ; nor would that mear'ni he altered or obscured if the fact were added that the plate did not belong to the master of the house, but was hired by him for the occasion. Indeed, if he had stolen the plate, or received it knowing it to be stolen, the fact denoted by tlie word *' possession " would remain. These illustrations, which might be multiplied to any extent, appear to me to shew clearly that possession means, in the common use of language, a power to act as the owner of a thing, coupled with a presumable intention to do so in case of neeH ; and that the custody of a servant, or person in a similar position, does not exclude the possession by anotlier, but differs from it in the presumable intention of the custodian to act under the orders of the possessor with reference to the thing possessed, and to give it up to him if he requires it. Thus far, I think, my deSnitions correspond with the common use of language, though of course popular language upon such a subject is not, nor is there any reason why it should be, minutely exact.' I will now compare it witli the way in which the word is used by legal authorities. I know of no set dissertations on the subject of the use of the word " possession " in English law like those which are to be found in abundance upon the corresponding word in Roman law. It would be an endless and a useless labour to go through the cases in which the word has been used, endless on account of their great number, useless because it is the characteristic of English judges to care little for technical niceties of language in comparison with substantial clearness of statement in reference to the actual matter in hand. Upon such a matter as this accordingly, it is better to consider the different authorities in groups than individually. ' This view wna susrgeated by a study of Savigny's Reoht des Besitzes, which, however, deals with many topics to which nothing in English law corresponds. Mr. Oeorgc Long's article on "Posscssio" in the Dictionary of Oreek and Roman Antiquities contains the substance of Savigny in a very convenient form. Mr. Hunter's Roman Law, pp. 195-222, may also be oonsalted. THE CRfMlNAL LAW. 535 [PoBsession (in reference to tlie subjecit of theft) is usually divided into two briiaclies — actual possession and constrnctivo possession. Itseoins to have been protty generally assumed tiiut the words "actual possession" were sufliciently plain for practical purposes without further explanation; but it would bo easy to show, by a multitude of cases, that actual possession differs from possession as I have defined it only in one point- It is usual to say that a thing in the possession of a servant on account of his master is only constructively in the possession of the master. But the expression " constructive possession " has another meaning besides this. As it was considered necessary that a thing stolen should be taken out of the possession of the owner, and as in very many instances goods are stolen which are not in any natural sense in the possession of any one whatever, it has become a maxim that goods are always in the possession of the owner; if not in his actual, then in his constructive possession, or, as it is sometimes called, in his legal Ix)ssession. Thus, constructive possession means : — 1. The possession of poods in the custody of a servant on account of his master ; and 2. The purely fictitious possession which the owner of goods is sup- posed to have, although they are in reality possessed by no one at all. The phrase thus appears to me to be objectionable, not only because it is ambiguous, but because, in the first of its two senses, it conceals a truth, whilst in the second it needlessly conveys a false impression. The truth concealed is that a man may have, and may intend to use, the power implied in the word " possession," although he acts through a ser- vant. The false impression conveyed is that things cannot be out of possession, or, that if they are, they cannot be stolen. I avoid this by abstaining altogether from the use of the expression "constructive possession." In " possession" I include that which has to be exercised through a servant, and my language implies that a person may commit theft on objects which are not in the possession of any one at the time of the theft. The existing law may by these means be expressed in well recognized and established phraseology, without any resort to legal fictions. " . The point upon which the most subtle questions as to possession arise is the distinction between theft and embezzlement— a perfectly useless distinction, no doubt, and one which the legislature has, on two separate occasions, vainly tried to abolish. So long, however, as it is allowed to exist, it is necessary to understand it. I have already explained how a man may retain the possession of a thing of which he gives his servant the custody. He retains a power over the thing which is not tlie less real or effective because he has to exercise it through the will of another person, who has undertaken to be the instrument of his will. Suppose, however, that instead of the master's having given his horse to his groom or his plate to his butler, a horse- sao .1 niaKST OF [doalorliiiH delivered the liorso to the j:rooin>or iisilvcrHinitli lias delivered |)lut«j to the hiitler for hiH imi.stor; I Hhonld have thought that there was no real diHureriee between those eases; that iiiasmneh as the servant in eaeh ease was actira^ for the master in the discharKO ol" a duty towards himi and under an aj^'reeinent to execute his orders, the master would come into powsession of the horse or the plate as soon as ids servant re- ceived it from the dealer or the silversmiih, just as he remains in poswos- sion of the horse or the plate when he ^ives the custody of it to his jrroom or his hutler. I should also have thou>rht that the servant who api)ro- priated ids master's i)roperty to his own use, after receiving; it from an- otlier on his master's account, was for all purposen in precisely the same jKisition as the servant who did the same thin^i after receiving it from Ids master. The Courts, however, decided otherwise. They have held ou many occasions that, thoiit^h the master's possession continues when he gives the custody of a thinj; to his servant, it does not bej^in when the servant receives anytldnfj; on account of his master ; on the contrary, the servant has the possession, as distinguished from the custody, until he does some act which vests the possession in his master, though it may leave tlie ctistody in himself. If during that interval he appropriates the thing, he commits embezzlement. If afterwards, theft. The most pointed illustration of this singi'-.ar doctrine which can be given occurs in the case of R. v. Reed (Dear 257). B. sent A. his servant, with a cart to fetch coals. A, put the coals into the cart, and on the way home sold some of them and kept the money. A. was convicted of larceny, and the (juea- tion was wliether he ought to have been convicted of embezzlement, It was held that the conviction was right, because though A. had the cus- tody of the cart all along, yet the possession of it and its contents was in B., and though A. had the possession of the coals whilst be was carrying them to the cart, that possession was reduced to a mere custody when they were deposited in the cart, so that A.'s offence was larceny, and not embezzlement, which it would have been if he had misappropriated the coals before they were put into the cart These explanations will, I hope, render the article in the Digest intelli- gible. In order to justify it legally, it is necessary to state the manner in which I arrived at it I examined a large number of cases, of which I have put eleven in the form of illustrations to the article. In some of these cases it was decided that the offence was theft; in others that the oflfence was embezzlement I have assumed (as I was entitled to do, a& appears from the explanations given above) that whenever an oflence was held to be theft the property stolen was in the possession of the owner or master, although it might be in the custody of a guest or ser- vant; and tliat whenever the offence was held to be embezzlement the property embezzled was in the possession, as distinguished from the cus- tody, of the servant I might easily have enlerged the number of illus- trations to any conceivable extent ; but if those given are not enough to make the matter plain, I despair of making it plain or understanding it, THE CRTMTNAL LAW. 637 [and 1 do not wiah to make it darker thiin it is. It is, perhaps, just worth while to add once more, that I am in tins work meroly stutinK, and not attoniptin^^ to justify, tlio law. The tec^hnicahtios on this subject apf)oar to mo to ho altojjetlier superlluoiiH, and I tiiink they mi^l't he easily dis- pensed with by rodeflninjr the offence of theft, or even by removinj,' the distinction between theft', embezzlement, and false pretences.] INDEX. A. ABANDONED ARTICLES, larceny of, 288 ABANDONING CHILDREN, 261 ABDUCTION, 256-259 : See Person (Abduction). ABOMINABLE CRIME, threatening to accuse of, 314 what is, in such case, 315 : 5ee Sodomy. ABETTING SUICIDE, 224 ABORTION, procuring, 251 : See Person (Abortion). ABSENCE, of wife or husband for seven years, second marriage not bigamy, 254 ABUSES, of public authority : See Public Authority (OflFences by Officers). ACCEPTANCE, of bill of exchange, forgery of, 400 ACCESSORY, ;.; ■:^:-^v, none in treason, 60 incitement a misdemeanor, 51 conspiracy to commit a crime, 51 .:"';■ prindpalsin first degree, A2 crime partly in one place, partly in another, 42 innocent agent, 42 principals in second degree, 43 mere presence not sufficient, 43 ; in bigamy, 255 mder* and abettors, 43 ' ^ . common purpose, 44 crime foreign to, 44 before the fact, 45 definition, 45 in misdemeanors, 45 mere knowledge of act not sufficient, 45 in manslaughter, 224 instigation, commission of a different crime, 47 • crime committed in a different way, 46 crime probable consequence of, 46 countermand of, 47 540 INDEX. ACCESSORY— con■..;v^.4,^:■v^■. ^- ca8hier, etc., embezzling from, 359 making or having mould for making, paper with name of any, 411 false return, etc, 420 savings bank, altering, etc., books of, 420 BANKER, definition 4, frauds by, 372 : See Frauds. BANK NOTES, forgery of, 399, 411 : See Forgery. BANK OFFICER, making out false dividend warrants, 397 stealing or embezzling by, 339 BANK POST BILL, forging, 400. BAPTISM, register of, forging, 397 making false entry in, 397 INDEX. 543 BARRATRY, 454-456 : See Malicious Injubiks. • ' BATTERY, 240 : See Person (Assault). ' BAWDY HOUSES, 167, 174, 188 : &c Pcbuc Mischief. o ; detaining women in, 204. BEGGARS, 187 • ... ;/■ '-:■':. ■..,:. , BESETTING HOUSE, 486. " : ' BETTING, 179 : , BETTING HOUSES, 174 : See Pubuc Mischief. BIGAMY, r;;,/"^•■^^■:^'■ -: ^^■■-■'^/■';v :;V-^ definition and punishment, 253 " marries" and " being married" defined, 253 principals in second degree in, 255 unlawfully solemnizing marriage, 255, 253 feigned marriages, 256 BILLS OF EXCHANGE, forgery of, 400 : See Forgery. drawing without authority, 409 forgery of foreign, 403 for purchase of patent, form of, 421 BILL OF LADING, (See interpretation clause Larceny Act). BIRD, stealing, 286, 327 BIRTH, concealment of, 228 : See Person (Murder). forgingentry in registration of, 397 BLASPHEMY, 154 : See Public Mischief. BODILY HARM, 40, 215, 243 : fePsKsoN (Homicide ; Malicious Injuries).. BODILY INJURY, consent to, 198 ' by lawful acts, 200 ..,-... neglect of duty, 203 ■ ^ ' v negligence, 240 BONDS, forgery of, 400 : See. Forgery. BREACH OF CONTRACT, 482 BREACH OF PEACE, consent to injury constituting, 200 BREACH OF TRUST, 376 by public officers. 111 : See Public Aitthority. BRIBERY, 117, 125 : See Public Authority. BRIDGES, nuisance to, 186 : See Public Mischief. damaging, 461 : See Property (Malicious Injuries).. BRITISH COLUMBIA, application of Criminal law of England to, 13 stealing from Indian graves in, 337 6^4 INDEX. BRITISH COLUMBIA— corihnwcrf. fraudulent registration of title deeds, 3G0 BROKER, frauds by, 272, 375 : See Frauds. BUILDINGS, riotous damage to, 72 demolition of, 72 • stealing fixtures of, 329 . setting fire to, 449, 450 exploding, 233 : See Person (MalicioHs Injuries), exploding, 455 : See Maucious Injitries. See also House. BUOYS, damaging, 455 : See Malicious Injuries. BURGLARY, definition of "night," 316 /. "house," 316 "dwelling-house," 316 within the curtilage, 316 "break," 317 "enter," 317 sacrilege, 317 housebreaking, 318 entering with intent, 318 breaking out, 318 house-breaking instruments, 319 possessing instruments, 137, 260 BURIAL, prevention of, 170 : See Pubuc Mischief. foiling registration of, 397 BURNING WAR SHIPS, 453 , C. CANALS, damaging, 460 : See Malicious Injuries. CARDS, cheating at, 349 CARNAL KNOWLEDGE, 248: See Child. of idiot, 165 CASTRATION, a maim, 199 CATTLE, definition, 3 wounding, 467 : See Malicious Injuries. attempts to injure, 467 threats to injure, 468 stealing, 327 : See Larceny. cruelty to, 477 conveyance by railway, 478 INDEX. 648 €AUSE OF DEATH, 211. See Pekson (Homicide). €HALLENGING, to fight, 60. See Public Order (Internal by Force). CHAMPERTY, 138 : See Public Authority (Misleading Justice). CHASTISEMENT, lawful, 196 : See Person (Lawful Injury). CHEATING, 349, 370 : See False Prbtbnoks. CHEQUES, forgery of, 409: -See Forgery. ■CHILD, under seven cannot commit crime, 32 under fourteen may, if it knew act was wrong, 32 carnal knowledge of, 250, 251 : S^'e Person (Rape). stealing, 259 : Aee Person (Abduction). abandoning, 261 not providing food for, etc., 208, 261 : See Person (Children). when considered a human being, 209 : See Person (Homicide). concealing birth of, 228 : Sec Person (Murder). CHOKING, 282 : See Person (Malicious Injuries). CHOSE IN ACTION, larceny of, 284 : See Larceny. CHRISTIANITY, denying, 156 : See Pubuo Mischief. CHURCH, rioters demolishing, 72 breaking and entering, and committing a felony, 317 or committing a felony and breaking out of, 317 setting fire to, 449 CIVIL SERVICE, personation at examination, 435 CLAIM OF RIGHT. 289. See Larceny. CLERGY, neglect to perform duty by, 113 refusing to use prayer-book, 158 interference with, 159 : See Person (Assault). CLERK, stealing by, 293,337 ; embezzlement, 293, 305 in employ of Government of Canada, making out false dividend war- rant, 397 COAL, .. ■..,..,. ■:-^.:;..f::' '''''■' setting fire to mine, 458 : - / ^^ ■ k COCK-PIT, keeping, 477 CODICIL, stealing, 322 forging, 400 COERCION : See Married Woman. COIN, intepretation of terms, 437 making and possessing instruments for coining, 440 2 N 546 INDEX. CX)IN — continued. , . bringing instruments frona mints, 441 clipping gold or silver coin, 441 passing clippings, 442 coining copper coin, 438 coining foreign gold and silver coin, 445 foreign copper coin, 445 uttering gold and silver coin, 443 copper coin, 443 making and uttering foreign, 445 , counterfeiting coins, 438 dealing in and importing, 439 making and importing copper coins, 439 exporting, 439 possessing, 442 punishment after previous conviction, 444 defacing current coin, 442 ^ uttering defaced coin, 444 uttering medals, 443 uttering uncurrent copper coin, 444 when offence completed, 446 advertising counterfeit money ,447 COLLISION, duty in, 494 COLONY, application of law of England to, 9 COMBINATION, unlawful, 87: See Public Order (Internal without Force). in restraint of trade, 481 COMMON ASSAULT, 247 : See Person (Assault). COMMON NUISANCE, 172 : See Public Mischief. COMMON PURPOSE, 44 : See Accessory. COMMUTATION OF SENTENCE, Crown may commute sentence of death, 30 Form and effect of commutation, 30 COMPOUNDING, 150 : See Public Authority (Misprision). COMPULSION : See Married Woman. of one by a number of offenders, 36 in taking unlawful oath, 88 CONCEALMENT, of birth, 228 : See Person (Murder). of deeds and incumbrances, 360: See False Pretences.. ofores, 354, 3.55 of treasure trove, 371 CONSENT, to bodily injury, 198, 211 : See Person (Lawful Injury). in assault, 240 in rape, 248 INDEX. 54t CONSPIRACY, to commit a crime, 51 to intimidate provincial legislatxire, 01 seditious, 91 of revenue officer to defraud the Crown, 120 to defeat justice, 139 to commit murder, 227: /S'ee Person (Murder). in restraint of trade; 480, 481 injurious agreements amount to, 153 to defile, 167 : (See Public Mischibp. to defraud, 369 : See False Pebtbkcbs. CONTEMPTS against the Queen, 62: See I*ubuc Ordek (Treason). CONTRACTS, criminal breach of, 482: .See Trade. corruption in government, 118 breach of, provocation bj', 220 CONVERSION. 301 : «ec Larceny. CONVICT, assault on officer, 244 at large, 147 ;■ V '"-■.";-;/'■-: r. ;■'/- ;■ CONVICTION, ■;■,;■'■■,,, J ■'■..' ' ■ '"'■-;--;-,/.'.■'■;-■,", consequences of^ 21 in Man. and N. W. T., 24 for corruption in Government contract, 119 for corrupting revenue officer, 121 for blasphemy, 156 ' after previous, 26 CO-PARTNERS, larceny by, 298 -^^^ '^ COPYRIGHT, V : V false e.. cries in register of, 419 personating agent of author, 435 CORONER, neglect to perform duty by, 112 giving notice of dead body to, 170 CORPORATION, larceny by members of, 298, 377 : See Larceny. CORREC riON, lawful, 196 : See Person (Lawful Injury). CORRUPTION, 117 : See Public Authority. CORRUPTION OF BLOOD, for treason, 22, 23 COSTS, on conviction for treason or felony, 24 COUNTERFEITING COIN, 437 : See Coin. COUNTY, definition, 3 2n2 548 INDEX. COURT. punishment in discretion of, 14 fine, 19 disobedience to orders of, 116 publication of proceedings not libellous, 272 process of, forgery of, 405, 406 : See Forgbry. COURTS OF JUSTICE, fair reports no libel, 273 CREDITORS, frauds on, 359 CRIME, definition of, 21 clasHification of, 21 exceptions to definitions of crime, 32 ; See Child ; Compulsion ; Doli Incapax; Drunkenness; Ignorance; Insanity; Married Womkn ; Necessity. degrees in commission of, 57 prevention of, 192 CRIMINAL LAW, ' application of, 9 application of law of England, 9 in Ontario and Quebec, 11 in Maritime Provinces, 12 in Manitoba, North- West Territories and British Columbia, 13 CROWN GRANTS, forgery of claims to, 395 CRUELTY TO ANIMALS, 477 keeping cock pit, 477 conveyance of cattle, 478 search of railway premises, 479 . obstructing officer, 479 CUMULATIVE PUNISHMENTS, 27 CUSTODY, 278 : See Larceny. CUSTOMS, corruption of officers of, 122 wounding of officers, 231 assaulting, 244 counterfeiting marks or brands, 418 ' ,. documents of, 418 damaging custom house, 456 D. DANGEROUS ACTS, 207 : See Person (Culpable Negligence). DEAD BODIES, larceny of, 288 : See Larceny. preventing burial of, 170 : See Pubuc Mischief. disinterment, 170 INDEX. 649 DEAD PERSON, libel on character of, 203 DJ:ATH, 209 : See J'brson (Homicide). mode of inflicting punishment of, 15 ■ lawful infliction, 192 con i^ent to infliction of, 200 by omission of duty, 203 not amounting to homicide, 213 of sovereign, imagining, 54 sentence of, false certificate of execution, 139 DEBENTURES, forgery of, 399, 402 : See FoRGBaiY. of railway (P.C.), forgery of, 418 DEBTORS, fraudulent, 35'J : See Tkadb. DEEDS, forgery of, 400 : See Forgery. larceny of, 284, 322 : See Larceny. concealment of, 360 : See False Pretences. DEFAMATORY MATTER, 264 : 6'ce Libel. DEFENCE, . ; from violence, 193 DEFILEMENT OF WOMEN, 167 : See Poblic Mischikp. DEODAND, : ;• abolished, 22 DEPRAVING (Lord's Supper and Common Prayer), 156, 157 : See Public Mischief. DESERTERS, enticing soldiers or sailors to desert, 64 * ■ resisting execution of warrant for arrest of, 64 from North-West mounted police force, 65 receiving necessaries from, 366 DESERTION, of ship, 491 ■ -! ' DETAINER, forcible, 73 : See Public Order (Internal by Force). DIRECTORS, frauds by, 377, 378 : See Frauds. DISOBEDIENCE TO LAWFUL ORDERS, 116 ' DISOBEDIENCE TO STATUTE, 115 DISORDERLY HOUSES, &c., 173,174, 188, 373 : See Public Mischief. DISORDERLY INNS, 181 DISORDERLY PLACES OF ENTERTAINMENT, 180 DISORDERLY PERSONS, 187 DISTRICT, definition, 3 DISTURBING PUBLIC WORSHIP, 159 DIVIDEND WARRANTS, making false, 397 : See Forgery. 550 INDEX. DOCKS, dnnm^ing, 460 : See ^Iai-icious In,iukihh. BtealinK from, 200 DOCKYARDS, sotting iire to H.M., 453 DOCUMENT, forging nny, 416 does not include trade marks, 392 fltealinz judicial, 323 DOCUMENT OF TITLE, to goods, 4 ■ ■ to lands, 5 to lands, stealing, etc., 322 forgery of, 404 DOGS, stealing, 280, 327 : See Larceny. wounding, 407. DOLI INCAPAX (boy under fourteen cannot commit rape), 32, 240 : See Person (Rape) : See Child; Insanity. DOMESTIC ANIMALS, stealing, 286, 327 '. killing or maiming, 467 DRILLING, unlawful, 74 : See Public Order (Internal by Force). DRIVING, furious, 236 , DROWN, attempt to, with intent, etc., 227 DRUG, adulteration of, 490.498 DRUGGING, 232 . . DRUNKENNESS, . * voluntary and involuntary, 34 intention to commit crime, 34 DUEL, challenging, 66 DUTY, neglect of, causing death, 203 DWELLING-HOUSE, 316 : See Burglary. stealing from, 335 ,. setting fire to, 449 E. ELECTIONS, bribery at, 125. See Public Authority (Bribery), personation at, 129 carrying arms at, 82 assault near poll, 247 stealing election documents, 326 damaging, 474 INDEX, 651 ELECTRICITY, subject of lar nmy, 285 (lamatre to electric line, I;i5 EMBEZZLKMENT, hij clirkn iind xtrninli*, '.\Ori, HI]? who is a servant, .'505 property must be master's, IlOf) distinction between, and theft, 1510 evidence of, :511 . stealinR by, 337 by public servants, 338 by bank oHicers and servants, 339 EMBRACERY, 124 : See Puhlic Authoiutv (Bribery). ENLISTMENT, FOREIGN, 9fi : See PuhucOuder (External). ENTERING INTO RECOGNIZANCES, 19 ENTRY, forcible, 73 : See Puni.ic Okder (Internal by Force). ESCAPE, 141: *V(? PUBUO Authority. ESCHEAT, of lands of person attainted for treason, 23 EVIDENCE, as to embezzlement, 311 as totheft,304 ' . self-orirainating, 379 : .%« Frauds. ' . ' EXCEPTIONS TO CRIMES, 32 SJ compulsion, 36 - t: ' i ' , • " drunkenness, 34 ;. . ignorance of fact, 39 ,\.-, ignorance of law, 38 infancy, 32 insanity, 32 married women, 35 : / necessity, 36 presumption of sanity, 34 , EXCHEQUER BILLS, forgery of, 399 : See Forqbry. EXCUSABLE HOMICIDE, 213 EXECUTION OF LAWFUL SENTENCES, 190 EXPLANATION OF TERMS, 1 EXPLOSIVE SUBSTANCES, &c., 75, 233, 455, 456 : See Public Ordbb (External by Force) : Person (Malicious Injuries). EXTORTION, 110 : See Public AuTHOEm' (Offences by Officers). by threats, 313 conspiracy to extort, 369 EXTRA-JUDICIAL OATHS, unlawfully administering, 138 FACTOR, misappropriation by, 375 : See Frauds. FALSE BILL of hops, 418 552 INDEX. FALSE BILL of ashes, 418 FALSE DECLARATION, 133 FALSE DOCUMENT, 386 : ASfeFoRGEKY. FALSE ENTRIES, in books of joint stock companies, 418, 4C0 in register of patent, 418 FALSE NAME, 389 FALSE NEWS, spreading, 93 FALSE PERSONATION, 435 FALSE PRETENCES, definition of "false pretence," 344 of "obtaining," 346 intent to defraud, 349 cheating at play, 349 fraudulently obtaining passage on railway, 349 pretending to enclose money in post letter, etc., 350 by officers of militia, 351 North- West mounted police obtaining pensions by, 352 unlawful sale of vessel or wreck, 352 offences respecting wrecks and marine stores, 353 warehouseman giving false receipt, 356 disposing of goods after advance by consignee, 357 false statements in receipts for grain, &c., 358 innocent partners, 358 conceahng deeds, &c., 360 fraudulent registration of title deeds in British Columbia, 360 North-West Territories, 361 conspiracy to defraud, 369 pretending to be a witch, 370 cheating, 370 concealing ore from mine, 354 applying marks to public stores, 363 removing marks from public stores, 364 unlawful possession, &c., of public stores, 364 by person in H. Majesty's service, 364 ' , by dealer in marine stores, 364 search for stores, 365 receiving regimental necessaries, 366 receiving necessaries from marine, 367 receiving seaman's property 367 disposing of arms, &c. of militia, 368 , ' of North-West mounted police, 369 concealing treasure trove, 371 theft by, 303 FALSE RECEIPTS. warehouseman, «Stc., giving for grain, 356-358 INDEX. 553 FALSE SIGNALS. exhibiting, with intent to bring ship into danger, 455 FALSE STATEMENTS, in affidavits, 136 FALSE SWEAEING, 136 FELODESE,224 FELONIOUS RESCUE, 142 FELONY, 21 commission of felony evidence of malice aforethought, 2i6: See Person (Murder). accessories in, 224, 227 consequences of conviction for, 21, 24 punishment for, where not expressly provided, 26 previous conviction for, 26 : See Pbbvious Conviction. coercion of married women in, 35 misprision, 148 FENCES, damage to, 472 : See Malicious Injuries. stealing, 331 : See Larceny. FERiE NATURiE : &6 Animals. FERTILIZER, forging certificate under Act, 420 FINDING, larceny by, 299 : See L/ rcbny. FINDING OF INDICTMENT, definition, 1 FINE, nature of punishment by, 19 FIRE-ARMS :&« Arms. FIRST OFFENCE, conditional release in case of, 27 consequences of breach of condition, 28 FISH-PONDS, damaging, 462 : See Malicious Injuries. FIXTURES, stealing, 329 : See Larceny. FLIGHT, no inquiry concern ug, on trial for treason, &c., 22 , ,; ; FOOD, . n adulteration of; 496-498 • neglect to provide, 238, 261 selling unfit, 184 , ' . _ FORCE, -^^.- to prevent assault, 195 lawful application, 196 provocation by employment of, 221 684 INDEX. FORCIBLE ENTRY, 73 : See Public Order (Internal by force). FOREIGN AGGRESSIONS, 55-56 FOREIGN ENLISTMENT, 96 : See Public Order (External). FOREIGN NATIONS, offences against, 94 : &e Public Order (External). FOREST, setting fire to, 451 FORFEITURE, on attainder for treason, 21 for murder, 22 for misprision, 148 on summary conviction, 22 of ships equipped for foreign hostile service, 98 FORGERY, definition of, 384 intend to defraud, 384 ' making a false document defined, 386 "document" does not include trade-marks or other signs, 392 seals, 393 state documents, 394 transfer of stock, 395 crown grants, scrip, &c., 395 entries in books of public funds, 396 Exchequer bills, 399 bank notes, 399 deeds, bonds, &c., 400 signature of attesting witness, 400 •wills, 400 bills of exchange, 400 stamps, 401 foreign bills, 403 , requests, orders, &c., 400 cheques, 409 registers of birth, &c., 397 copies of registers, 398 ^ public registers, 405 ?. ' debentures, 399, 402 , documents relating to registry of deeds, 404 judicial documents, 405, 406 •drawing bills of exchange, &c., without authority, 409 demanding property by means of forged document, 410 process of any Court, 405, 406 certificates of record, 406 instruments made evidence by statute, 406 documents issued by justices of the peace, 405 public proclamation, &c., 407 INDEX. 555 ^ORGEBY— continued. acknowlec ging recognizance without authority, 408 letters patent, 408 ' • passenger ticket, 409 marriage licences, 408 \ clerks of banks issuing dividends, 397 acts preparatory to the making of Exchequer bills, &c., 413 acts preparatory to forging bank notes, 411 — il3 acts preparatory to forging bills of exchange. 411 — 413 circulars, &c., in likeness of bank notes, 415 any document, 416 punishment not specified, 416 at common law, 417 special statutory forgeries, All — 421 false bill of hops, 418 ashes, 419 railway debenture (P.C), 418 false entries in books of joint stock company, 418, 420 •counterfeiting customs' marks, 418 •documents, 418 inland revenue label, 418 • tobacco stamp, 418 money orders, etc., 418 P.O. keys, 418 false entries in patent register, 418 copyright register, 419 altering certificates masters or mates, 419 agreement under Seamen's Act, 419 Inland Waters' Act, 419 ■ marks denoting draught of ship, 419 stamps on gas meters, 419 inspection of petroleum, 419 . counterfeiting cullers' stamps, 419 stamps on weights, etc., 419 selling false weight, 420 certificate under Fertilizers' Act, 420 ^ • false railway statistical returns, 420 statement in bank account, etc., 420 altering books of bank, 420 of savings bank, 420 issuing illegal bill for purchase of patent, 421 pawnbrokers' note of pledge, 421 fraudulent dealing with books of insolvent company, 421 forging ballot papers, 130 : See Public Authouity. FORNICATION, 167 : See Public Mischief. FORO DOMESTICO, 196 : See Person (Lawful Injury). 556 INDEX. FRAUDS, by agents, trustees, bankers, &c., 372 by persons under power of attorney, 374 by factors or agents, 375 assisting in procuring advances, 376 by trustees, 376 by directors, &c., of.corporate bodies, 377 of unincorporated bodies, 378 defence by previous disclosure, 379 issuing money orders fraudulently', 324 removing ore from mine with intent, 355 fraudulent dealings with ore, 355 fraudulent sale of property in Quebec, 362 fraudulent hypothecation in Quebec, 362 fraudulent seizures of land in Quebec, 362 by public officers, 111 : See Public Authority. on creditors, 359 FREEMASONS, meetings of, not unlawful, 90 FUNDS, forgeries relating to public, 394 : See Forgery. false entries in books, 396 FURIOUS DRIVING, 236 : See Pkrson (Malicious Injuries ).. G. GAMBLING, in stocks, 176 frequenting place, 177 in public conveyance, 178 GAMING-HOUSES, 174, 177 : See Public Mischief. GAS, larceny of, 285 : See Larceny. forging stamp on meter, 419 breach of contract to supply, 482 GIRL, abduction of, 258 carnally knowing, 250, 251 GOODS IN PROCESS OF MANTTFACTUR'i', stealing, 335 GOVERNMENT, corruption in contract with, 118 in business with, 119 of revenue officers, 120 of customs officers, 122 savings banks, altering books of, 420 personation to obtain deposit, 436 INDEX. 657 GREAT SEAL, forging, 393 > < PREVIOUS BODILY HARM : See Person (Homicide; Malicious Injury). GUNPOWDER, 75, 233 setting fire to buildinp3 by, 455 : See Malicious Injuries. , making, 76 'Si*.^ HARD LABOR, 16 : See Imprisonment. HAVING IN POSSESSION, definition, 4 HEALTH, nuisances to, 183 : See Public Mischief. HIGH SEAS, 101 : See Piracy. HIGH TREASON, 54 : See Public Order. HIGHWAYS, nuisances to, 185 : See Public Mischief, HOMICIDE, 209 : See Person. HOUSE, breaking into, 318 : /See Burglary. possessing instruments for, 319 demolition of, 72 : See Public Order (Internal by Forced damage to, 72 HOUSEHOLDER, permitting defilement of girls, 166 HUSBAND AND WIFE : «ee Married Woman. husband committing rape, 248 HYPOTHECATION, of real property in Quebec, frauds in respect of, 362 I. ICE, ''■■''■■-- leaving holes in, 237 IDIOT, carnally knowing, 165 IGNOKANCE, : . > of law will not excuse, 38 relevant as to intention, 38 of statute making act unlawful, 38 of fact, 39 of husband being alive, marriage of wife, 40 ILLICIT INTERCOURSE, with girl under sixteen years of age, 165 under twenty-one years, 166 558 INDEX. IMMIGRANTS. seduction of female, 168 IMMOltAL BOOKS, posting. 165 IMMORALIIY : See Public Mischikf. IMPRISONMENT, mode of inflicting, 16 hard labor, 16 solitary confinement abolished, 15 place of, 16 by military or naval authority, 16 for want of recognizances, 19 discharge in such cases, 20 commencement of, 16 where no express provision, 26 provocation by, 220 INCEST, 161 INCITING, 51, 506 : See Aockssoky. to mutiny, 63 Indian to riot, 73 INDECENCY, 162, See Public Mischief. INDECENT ASSAULT, 242 : See Person (Assault). INDECENT EXPOSURE, 187 INDIA BONDS, forgery of, 304 : See Forgery. INDIAN, inciting to riotous acts, 73 woman,. prostitution of, 169 .. INDIAN GRAVES, in British Columbia, violating, 337 INDICTMENT, definition, 2 of finding of, 3 INDUSTRIAL DESIGN, unlawfully applying, 432 falsely marking as registered, 433 INDUSTRIAL SCHOOL, escaping from, 146 INFAMOUS CRIME : See Ahominaisle Crime. INFANCY, 32 INFANT : See Child. INFECTION, communicating, 214 INLAND REVENUE, wounding officers of, 231 assaulting officers, 244 forging labels, etc., 418 tobacco stamp, 418 INDEX. 669 INSANITY, act of insane person not a crime, 32 presumption of sanity, 34 defence to murder : See Person (Murder). INSTIGATION, 47 : See Accessory. INTENT TO DEFRAUD, 349. false pretences, 349. INTENTION, seditious, 92 presumption as to, 93 INTIMIDATION, 485-487: See Trade, Offences against of provinciallegislature, 61 JUDGES, bribery of, 117 : See Public Authority (Bribery). JUDICIAL CORRUPTION, 117 JUDICIAL DOCUMENTS, stealing, 323. forgery o^ 405, 406. JUROR, Punishment for embracery, 124. JUSTICE, definition, 2. unlawfully administering oath, 138. forging orders of, 405. JUVENILE OFFENDERS, punishment of, 17 conditional release of, on first offence, 27 • Alt KEEPER of penitentiary, allowing escape, 141 KIDNAPPING, 246 : See Person (Assaults.) ; ■ ; ^ KILLING, 209 : See Person (Homicide.) presumption of murder, 225. L. LAND, stealing document of title to, 284, 322. stealing things fixed to, 284, 329. LANDMARKS, injury to municipal, 471. maliciously defacing, etc., 472. except by surveyor in certain cases, 472. 560 INDEX. LARCENY, how rights of property may be violated, 277 property in movable things, 278 " possession " defined, 278 ' ' special owner, 280 '. ,. as against strangers, 281 " taking and carrying away," 281 bailment defined, 282 things capable of hdng stolen, 284 movable things, 284 title deeds, 284, 322 ' choses in action, 284 water, 285 gas, 285 electricity, 285 animals ferse naturte, 286 tame animals, 286 living and dead animals, 287 dead bodies, 288 things abandoned, 288 things of no value, 288 ihefi in general 2%Q. definition of theft, 289. of conversion, 289. &■. claim of right, 289. theft by taking and carrying away, 291. without consent, 291. ' from the possession of owner, 291. actual violence, robbery, 291. by servant, 293. ' embezzlement, 293. • - -= by fraud, 294. / by taking advantage of mistake, 295. by bailees, 297. by tenants and lodgers, 340 '^ by and from whom theft may he committed, 297. : . owner, 297. ' co-partners, 298. corporators, 298. married women, 298. avowterer, 298. by finding, 299. where taking a trespass, 301. where taking innocent, 301. acts not amounting to theft, obtaining by false pretences, 303 : See False Pbetknces. INDEX. 501 LARCENY— conttnucrf. acta not amounting to theft — continued. temporary taking, 303. tame animal '•vandering, 303. evidence of, 304. identification of property, 304. recent possession, 304. ' ;' larcenies of other things, 320. " ' >, ^ ^ wliere no punishment is provided, 320. appropriating with intent, 320. , ,• property worth over $200, 321. killing animals with intent, 327. valuable securities, 321. will8,322. • defence by previous disclosure, 322. post letters, etc., 324. other mailable matter, 326. , election documents, 326 V; ; : railway tickets, 326 ' / valuable securities by officers of bank, 339 .. cattle, etc., 327 / ■■ c ' things under seizure, 334 stealing from the j;)erson, 334 * stealing in dwelling-houses, 335 , goods in course of manufacture, 335 * ; in vessels, etc., 336 on wharves, etc., 336 ;.; V . wrecks, 336 from Indian graves in British Columbia, 337 ; ' chattels and fixtures in lodgings, 340 ; title to lands, 322 judicial documents, 323 ' lead, etc, from buildings, 329 fixed metal, 329 trees and shrubs, 329 oysters, 328 • electricity, 285 : -v v ■■ ' ore, etc., 333 offences resembling theft, 320 dog stealing, 327 bird stealing, 327 domestic animals, 327 pigeons, 328 dredging for oysters, 328 stealing of fixtures, 329 stealing shrubs value 25c., 330 2o 562 INDEX, LARCENY— cojitmucrf. , '. / ; offences restmUing theft — continued. . , . stealing timber found adrift, 331 ^ .' . stealing fences. 331 , • . ,,v unlawful possession of tree, 332 stealing vegetable produce, etc., 332 bringing stolen property into Canada, 340 ,> from the person, 234. from the dwelling-house, 235. '• . LEAD, _.' • ^;'' :'V'' , stealing, 329. LEGISLATURE, attempt to intimidate, 56, 60 publication by authority of, bar to criminal information for libel, 271. LETTER. demanding money, etc., with menaces, punishment for sending, 313. threatening to accuse of crime, sending with a view to extort gain, 313. threatening to kill, etc., 227. to burn house, 453. LETTERS PATENT, : forging, 408. LEVYING WAR, 55 : /See Public Okdbr (Treason.) LIBELS, , on private persons, 263 definition of libel, 263 ; on character of dead person, 263 ^ things capable of being libels, 264 defamatory matter, 264 by signs, 264 publication defined, 265 ' ■ , .- defence, 266 by newspaper or periodical, 266 malice, 267 truth, 267 honest belief, 268 . ■ privilege, 268 \ ' ■ . public benefit, 267 " - • ' fair criticism, 269 public persons subject to, 270 parliamentary proceedings, 271 fair comment, 271 reports of proceedings at meetings, 272 proceedings of courts, fair report of, 273 ex parte proceedings, 273 investigations by magistrates, 273 publication in a court of justice, 272 INDEX. 563 LII5ELS — continued, punishment for libel, 274 seditious, 91 : See I'unuc Orueu (Internal without Force.) on foreign powers, 95. LIMITATION, of time for prosecuting, 1 ■ LIQUOR, sale of, near public works, 85 ' taking on board H.M. vessels, 86 •, ; LODGINGS, damage by tenants to, 475 : 6'ec Malicious Injuries. larceny from, 340. , LOST PROPERTY, larceny of, 299 : See Lakceny. . ' LOTTERIES, 181 : See Public Mischief. LUNATIC : See Insanity. MACHINERY, damaging, 457, 459 : (See Malicious Injuries. MAIL, stopping with intent to rob, 325 ' stealing matter from, 327 ,, damaging, 466 j ; MAIM, , ■:'^' :-.-,.: .'-■■ ■ ■ ■ , ■■;, ^■:;, consent to injury short ofi 199. ' t V ' . wounding with intent to, 230 MAINTENANCE, 138, 507 : See Public Authority (Misleading Justice.) MALICE, 216: /See Person (Murder.) in Hbels, 267 : { from public meeting, 81 poKSOHsins weapons near pul)lic works, 84 goin^; about armed, 79 affray, 68 unlawful assembly, (59 routs, 70 . riots, 70 punishment of the above, 70 preventing reading of proclamation, 71 riotinj^ durinjr and after proclamation, 71 riotous demolition of houses, 72 riotous damage of houses, 72 inciting Indians to riot, 73 forcible entry, 73 unlawful drilling, 74 causing dangerous explosions, 85 possessing explosive substances, 76 making, 76 sale of arms in Xorth-West Territories, 83 (2) Without force, by unlawful combination, 87 by unlawful oaths, 87 to commit murder or treason, 87 other unlawful oaths, 87 to disturb peace, &c., 87 compulsion, how far a defence, 88 unlawful societies, 88 , exceptions, 90 punishment of members, 90 permitting meetings of unlawful societies, 90 , seditious words, 91 seditious libels, 91 ' . . , seditious conspiracy, 91 seditious intention, definition, 92 . % ; presumption as to intention, 93 ... ^ > : .: ,,! spreading false news, 93 sale of liquors near public works, 85 taking liquors on board Her Majesty's ships, 86 PUBLIC SERVICE, ,. stealing by persons in, 338 embezzlement, 338 refusal to deliver up money, 339 civil remedy, not alfected, 245. 580 INDEX. PUBLIC STORES, removing marks from, 3G4 : See Falsk Pretcnces. applying marks to, 363 unlawful possession, 364 searching for, 365 PUBLIC WORKS, possessing weapons near, 84 sale of liquors near, 85 PUBLICATION, obscene, 163 of libel, 265 PUBLIC WORSHIP, disturbing, 159 : Sec Public Mischief, PUNISHMENTS, after conviction only, 14 discretion of court, 14 oflfender punishable under two or more provisions, 14 mode of inflicting different kinds of, 15-20 cumulative, 27 See Death; Fine; Impbisonmest ; Recognizaxce ; Reformatory Whipping. for particular offences : See those offences. after previous conviction, 26 : See Previous Conviction. for felony, 26 : See Felony. for misdemeanors, 26 • See Misdemeanors. of juvenile offenders, 17 : See Juvenile Offenders. for felony, etc., where no express punishment provided, 26 QUEBEC, application of criminal law of England to, 11 fraudulent dealings with land in, 362 personating notary in, 436 E. RAILWAYS. gambling on, 179 fraudulently obtaining passage on, 349 stealing tickets, 326 damaging, 463,464 : See Malicious Injuries. injuring package in custody of, 465 conveyance of cattle on, 478 endangering persons travelling by, 235, 236 : See Person (Malicious Injuries) forging debentures under act of P. C, 418 signing false statistical returns of, 420 r" breach of contract to carry mails, 482 * -- -^ INDEX. 681 RAPE, 248 : See Person. assault with intent, 242 RECEIFIS. forging of, 400 : See Forgbrv. RECEIVING STOLEN GOODS, 380 stolen trees value over $10,330 timber found adrift, 331 stolen goods, 380 " receiving " defined, 380 by wife or servant, 380 property unlawfully obtained, 381 property obtained by commission of misdemeanor, 382 by offence punishable on summary conviction, 382 post-letters, 325 stolen by a partner, 381 note (6) taking rewards, 150 RECENT POSSESSION OF STOLEN PROPERTY, 304 RECOGNIZANCES, nature of punishment by, 19 acknowledging without authority, 408 RECORDS, forging of, 405 : See Forgery. REFORMATORY, juvenile offenders sent to, 17 statute relating to, 17 escape from, 146 EEFUSAL TO TAKE OFFICE, 114 REGISTERS, forgery of entries in, 309 : See Forgery. forgery of public, 405 REGISTRY, of deeds, forgery relating to, 404 : See Forgery. in British Columbia, fraudulent, 360 in N. W. T., 361 RELIGION, offences against, 134 ; See Public Mischief. REQUEST, for payment of money, forging, 400 RESCUE, 141 : See Public Authority (Escape). REVENUE, corruption by officers of, 120 of officers of, 121 REWARD, for recovery of stolen property, corruptly taking, 150 advertising, for return of, 151 RIOTS, 70 : See Public Order (Internal by Force). bodily harm done in suppression of, 192 See Person: (Lawful Injury). 682 INDEX. RIVFRS, nuisances to, 186 : See Public Mischief. injuries to, 460 putting lime in, ;540 ROBBERY, extortion by threats 313 stopping mails with intent, 324 definition of, 291 coercion of married women in, 35 ROUTS, 70 : See Pubuc Okder (Internal by Force). S. SACRAMENT, depraving. 157 SACRILEGE, 317 : See Burgj^ary. SALE OF OFFICES, 131 : See Public Authority. SANITY, presumption of 34 SAVINGS BANK, Government, altering books of, 420 in Ontario and Quebec, altering books of, 420 SEA BANKS, damages, 460 : See Malicious Injuries. SEALS, forgery of, 393 : See Forgery. SEAMEN, offences relating to, 487-494 : See Trade. enticing to desert, 64 unlawfully purchasing necessaries of, 367 forging certificate of masters and mates, 419 making false entry in agreement under Seamen's Act, -119 under Inland Waters Seamen's Act, 419 SECURITIES, stealing, 321, 337 S1':DI'J'I0N, 91 : See Public Order (Internal without Force). SEDUCTION, of girl under sixteen, 165 under promise of marriage, 166 of female passengers, 168 of female immigrants, 168 SEIZURE, larieny of things under, 334 SELF-DEFENCE, 193 : See Person (Lawful Injurv). SENTENCE, commutation of, 30 — — — — - -— -— — INDEX. 58.-] SERVANT, custody by, 279 larceny by, 293, 337 : See Larceny. embezzlement by, 293, 305 : See Embe/zlbmbxt. forging trade mark, 430 public, larceny by, 338 SHIPS. loitering near, 189 : See Public Mischief. exploding, 234 : See Person (Malicious Injuries) daraiiging, 454-456 : See Malicious Injuries. injuring H.M., 456 equijiping for foreign hostilities, 97 equi]}ping for foreign belligerents, 99 forfeiiture of, 97 : See Public Order (External). stealing from, 336: See Larceny. unlawful sale of, 352 burn ing, of war, 453 sending to sea unse" worthy, 489 duty of, in case of i^ollision, 494 preventing the loading of, 486 : See Trade. preventing saving of shipwrecked person, 236 taking liquor on board Her Majesty's, 86 shooting at Her Majesty's, 231 altering marks denoting draught, 419 SHOOTING, 230 ; See Person (Malicious Injuries). SHRUBS, stealing, 329, 330 damaging, 470, 471 SIGNAL, railway, removing for purposes of obstruction, 463 false, exhibiting, to bring ship into danger, 455 SKILL, special, in dangerous acts, 208 : See Person (Culpable Negligence). SLAVE TRADING, 105 : See Public Order (External). SMUGGLING, smueg'lers carrying offensive weapons, 83 SOCIETY, unincorporated, officer or member appropriating property of, 378 SOCIEIIES, unlawful, 88 : See Public Order (Internal without Force). SODOMY, 161 : See Public Mischief. attempt to commit, 161 assault with attempt to commit, 242 : Si'e Person (Assaults). """ provorntion by sight of, 220 SOVEREIGN, . . _- "- ——' """' treasonable offences against, 54 584 INDEX. SPECIAL OWNERSHIP, 280 SPRING-GUNS, setting, &c., 234 : See Person' (Malicious Injuries-) STAMP, including in word "property" in Larceny Act, 6 forging, 401 STATUE, damaging, 473 : See Malicious Inmuries. STATUTES, disobedience to, 115 : See Public Authority (Offences by OflScers). STOCK, forgery of transfers of, 395 : See Forgery. gambling in, 176 STOLEN GOODS, receiving, 380 : See Receiving Stolen Goods. STOLEN PROPERTY, corruptly taking reward for recovery of, 150 advertising reward for recovery of, 151 bringing into Canada, 340 STORES : See Marine Storks. 354 ; Public Stores, 363 STRANGLING, 232 : See Person (Malicious Injuries). STUPEFYING, 232 : See Person (Malicious Injuries). SUBORNATION OF PERJURY, 135 : See Public Authority (Misleading Justice). SUFFOCATING, 232 : See Person (Malicious Injuries). SUICIDE, 224 : See Person (Murder). SUMMARY CONVICTION, definition, 1 accessories in offences punishable on, 50 receiving property obtained by offence punishable on, 382 SUPERIOR ORDERS TO EMPLOY FORCE, 116 SUPPRESSION OF RIOTS, 191 SURGEON, inflicting bodily harm by consent, 211 : See Person (Lawful Injury). special skill, 208 : See Person (Culpable Negligence). T. TELEGRAPHS, damage to, 465 : See Malicious Injuriks. TENANTS, damage by, 475 : See Malicious Injuries. stealing by, 340 TERMS, explanation, 1 TERRITORIAL DIVISION : definition, 3 "^,rr--^Y'Wr ,*..»■■;■:'. INDEX. 586 TESTAMENTARY INSTRUMENT, meaning of expression in Larceny Act, 6 stealing, etc, 322 forging, 400 THEFT, 289 : See Larceny. distinction between, and embezzlement, 310 THREATS, of arson, 453 : See Malicious Injueies. to injure cattle, 468 ^ extortion by, 313 : See Robbery. to commit murder, 227 : See Person (Murder). THROWING CORROSIVE FLUID, 233 : See Pbrson (Malicious Injuries). TICKETS, of railway, etc., forging, 349, 409 stealing, 326 TIMBER, false statement in receipt, etc., for, 356 found adrift, unlawful possession of, 331 defacing owner's mark, 331 injuries to rafts, 461 unlawful use of marks on, 433 forging culler's stamps on, 419 TITLE DEEDS, larceny of, 284, 322 damaging, 322 forgery of registry of, 404 fraudulent registration in British Columbia, 360 in N. W. T., 361 TOLL-BAKS, destroying, 473 TOLL HOUSE, destroying, 473 TRADE, OFFENCES AGAINST, offensive, 185 fraudulent debtors, 359 falsifying books, 359 conspiracies in restraint of, 480, 481 lawful acts in restraint of, 480 combination in restraint of, 481 criminal breaches of contract, 482 intimidation, 484 intimidation to prevent working at, 485 intimidation to prevent dealing in wheat, etc., 486 preventing seamen from working, 486 _ ., .- - intimidation to prevent bidding for public lands, 487-491 breaches of employer's duty to seamen, 487 under Act of United Kingdom, 489 r "^ "7 under Canadian Act, 490 2 Q 586 INDEX. OFFENCES AGAINST TRADE— con/inwed. leaving seamen behind, 487 sending unseaworthy ship to sea, 489 breach of seamen's duty to employer, 491 punishments, 492, 493. breach of seamen's duty to each other, 493 to other ship in collision, 494 TRADE MARKS, trade marks defined, 422 marks on watch-cases, 424 applying trade-marks to goods, 425 selling goods falsely marked, 427 defence, 427 selling bottles without consent of owner of trade-mark, 428 punishment, 428 representing goods as for H. Majesty, 428 unlawful importation, 429 offence in ordinary course of business, 429 offence by servant, 430 trade description, 431 patented article not marked, 431 falsely marked, 432 industrial design, 432, 433 forgery of trade-marks, definition, 425 defence, 426 timber marks, 433 TRADE UNION, 480 TREATING, at elections, 127 TREASON, 21, 54 : See Public Order. consequences of conviction for, 21, 24 misprision, 148 TREASURE-TROVE, conceeling, 371 : See False Pretences, TREES, &c., stealing, 329 : See Larceny. damaging, 469, 470 : See Malicious Injuries. TRUST breach of. 111 : See Public Authority. TRUSTEE, definition, 6 frauds by, 372, 375 : See Frauds. TURNPIKES, -. . 7 — damage to, 473 : S'ee Malicious Injuries. INDEX. 58t UNDERWRITERS, setting fire, etc., to ship with intent to prejudice, 454 UNDUE INFLUENC3E, 126 ; See Public Authority (Bribery). UNLAWFUL ASSEMBLY, 60 ; See Public Order (Internal by Force). UNLAWFUL DRILLING, 74 : See Public Omym. (Internal by Force). UNLAWFUL OATHS, 87 : See Public Order (Internal witnout Force). UNLAWFUL SOCIETIES, 88 : See Public Order (Internal without Force). permitting meetings of, 90 freemasons excepted, 90 punishment of members, 90 UiiLAWFUL WOUNDING, 239 : See Person (Malicious Injuries). UTTERING : See Forgery. V. VAGRANCY, 187 : See Public Mischief. VALUABLE SECURITY, definition, 7 stealing, 321 VEGETABLE PRODUCTS, stealing, 332 injuries to, 470, 471 VESSELS: ^ee Ships. VIOLENCE, death by frequent acts of, 214 W. WAR, levying, against Her Majesty is treason, 55. levied in Canada by foreigners, 55. by a British subject in company with foreigners, 56. burning ship of, 453 WATER, stealing, 285. breach of contract to supply, 482 WEIGHTS AND MEASURES, forging stamp on weight, etc., 419 using false weight, 420 WHIPPING, punishment by, manner of, 18. WIFE : See Married Woman. WILL, stealing, etc., 322. forging, 400. ._._^_ i, j1- t, WINDING UP ACT, altering books of company being wound up, 421 688 INDEX. WITCHCRAFT, pretending to exercise, 370 WITNESS, dissuading from testifying, 139 : See Public Authority (Conspiracy to defeat justice). death by false testimony, 214 to power of attorney, forging signature, 396 WOMAN, unlawfully defiling, 167 procuring abortion of, 251 abduction of, with intent to marry, 267 concealing birth of child, 228 WORDS, treason by, 58 seditious, 91 provocation by, 220 not assault, 241 libel by, 264 WOUNDING, 230 with intent, 230 customs officers, 231 inland revenue officer. 231 and robbing, 313 WRECK, assaulting receiver of, 245 stealing, 336, unlawfully selling, 352 other ofifences, 353 preventing saving of, 462 WRITING, meaning of expression in Larceny Act, 8 fraudulent alteration of, to be forgery, 416 <:^