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A8 AUSNDXD AND IN FOBOB On THE 18T DAY OF NOVEMBER, 1874, IN THE PboVINOES OF O.XARIO, Quebec, Nova Scotia, New bZsZI Manitoba, and, on the Ist -— - - -""i^nswiok, British Columbia, DAY of January, 1875, in WITH |»M*, 4(niiiittm«i«,. ftfuHut* .( )yid„„u,, |f„ j,__ j^_ i:j -:d BT HENRI ELZEAR TASCHEREAU 0». O, ™ ...OBS OF XH. S.PHHXOH COCK, ,OB XH. PHOVXN:. 0, ...3.C Vol. I. ittontreai » *H«TBD BT THB tOVB.. PBINTXNO AND PUBtlSHINO COKPANT 1874, KB ss^i- Entered according to Act of the parliament of Canada, in the year of ou. Lor , one thousand eight hundred and sevent,-four b/l^E ll TAS0H»HK.n, in the office of the Minister of Agriculture PEEFACE. The following pages are hardly anything else but a compilation. They may, nevertheless, perhaps prote use- ful. They will be found to contain the full text of the Crimi- nal Statutes Consolidation Acts of 1869, with a synopsis, under each clause, of the law and the rules of pleading,' practice and evidence applicable to it. It will be found that no reference is made, except in very few instances, to the Criminal Statutory Law in force, in each of the Provinces, before Confederation. This has been thought the best mode to ensure, for the work, an equal use- fulness throughout the whole of the Dominion. For the same object, no citations of cases decided and reported in each of the Provinces will generally be met with. With Mr. Clarke's valuable book, this would, moreover, have been superfluous. However, it has not been forgotten that, Longum iter est per praecepta, Breve et eflScax per exempla,— ;&n«ca, and the reported English Crown caseq down to July last will be found numerously cited and largely made use of: it cannot be denied that the weight of their authority and their practical importance, for the Dominion of Canada, have been largely increased by the enactment of the Crimi- $▼ PREFACE. nal Law Consolidation Acts of 1869, based as those are on the Imperial Criminal Law Consolidation Acts of 1861, and taken almost textually from them. At the end of each clause will be found cited the corres- ponding clause of the Imperial Statute, and any material difference between both mentioned. The annotations made by the learned Mr. Greaves, Q C on the -Lord Campbell's Acts," of 1861, and the Consoli- dated Acts of 1861, have been compiled and inserted, when thought of practical utility to the Canadian practitioner • these annotations are rendered the more valuable by the fact that these Statutes were drawn and framed by Mr. Oreaves. Not a few errors, some of a very grave nature, have crept into our said Statutes,of 1869 : they will be found noticed, under each clause, as they have been observed. By a glance' at the following sections, where tome of such errors are met with, the necessity of a complete revision of these Acts will be amply demonstrated: sections 12, 20, 29, 32 and 45, of the Forgery Act: sections 19, 31 and 41 of the offences against the Person Act : sections 12, 15, 43, 54, 56, 57, 60 and 61 of the Malicious Injuries to property Act : sections' 72 and 73 of 31 Vict. ch. 68, and sections 67 and 68 of 31 Vict. ch. 12, in conjunction with sections 31, 32 and 33 of the Offences against the Person Act: section 74 of 31 Vict ch. &%,page 213, &c., &c., &c. In other parts, are found provisions which seem to cover matters left entirely; by the British North America Act, under the control and legislative powers of the provincial legislatures, and therefore, ultra vires of the Parliament and unconstitutional: attention has been called to the sections PREFACE. . containing these enactments, as well as to others, which seem to contain a legislation entirely new, based on doctrines at all times repudiated by the Criminal Law of England, unknown, before Confederation, in each and every one of the Provinces now constituting this Dominion of Canada, and rejected by perhaps all the modern Codes of the world! An enactment of this kind may be seen in section 110 of the Larceny Act. To this Volume, so as to make it complete by itself, have been joined a list of the cases cited, a table of contents, a table of Statutes, and a copious index : in fact, no pains have been spared to enhance its usefulness to the practitio- ner. The second Volume will consist of the Procedure Act of 1869, with annotations, the general Repeal Act of 1869, and the Acts extending the Criminal Consolidation Statutes to Manitoba, (34 Vict. ch. 14) British Columbia, (37 Vict, ch- 42) and Prince Edward Island, if this last one is then enact- ed. But a condition, which must be admitted to be a fair one, is attached to the publication of the second Volume : it is, that the expenses incurred in the publication of the first be reimbursed. The experience of others teaches that, in this Country, one would be greatly mistaken if he expected a pecuniary reward for a law publication, but it would not be just to ask the addition of a pecuniary sacrifice to the no small amount of labour necessarily bestowed on these pages. Fraserville, River du Loup, en bas, P.Q. 2nd November, 1874. TABLE OP CONTENTS. An Act reflpecting offences relating" to the Coin., 32-33 Vict ^*" ch. 18 ■' . Forg«ry.— General Remarks 39 An Act respecting Forgery.— 32-33 Vict., cli 19 65 The Trade Marks Offences Act.--35 Vict., ch. 32 113 An Act respecting offences against the person.— 32-33 Vict., cli. , ^^ 161 Larceny.— General Remarks 355 An Act respecting Larceny and other similar offences.- 32-33 Vict., ch. 21 ^gg An Act for the avoidance of doubts respecting Larceny of Stamps. —35 Vict., ch.33 ^^ g^^ An Act respecting Malicious Injuries to Property .-32-33 Vict, ch. 22. ... * ^ " 641 An Act respecting Perjury .-32-33 Vict., ch. 23 726 An Act for tlie suppression of voluntary and extra-judicial oaths. — 37Vict., ch.37 Y4^ An Act for the better preservation of the peace in the vicinity of public works.-32-33 Vict., ch. 24 {mentioned only) 753 An Act respecting certain offences relative to Her Majesty's Army and Navy.-32-33 Vict., ch. 25 754 An Act for the better protection of Her Majesty's Military and Naval stores.— 32-33 Vict., ch. 26 753 An Act respecting cruelty to animals.- 32-33 Vict., ch. 27 765 An Act respecting Vagrants.— 32-33 Vict., ch. 28 '. 76J Jndex ' "■ ^^, 771 1 ! TABLE OF STATUTES. THB COIN ACT. Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Sect'on Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section 1, 2. 3, 4. 6. 6. 7. 8. 9. 10. 11. 12. 13. 14. 16. 16. 17. 18.. 19., 32-33 Vict.,ch. 18. 1 3 6 8 9 10 12 13 13 14 14 18 19 20 21 21 "2 23 23 Section 20 23 Section 21 '.','." 24 Section 22 .'!!!!'* 24 Section 23 25 Section 24 '.*...'.. 26 Section 25 .'.'.',',',' 3 J Section 26 ..*..!'..'.* .' 82 Section 27 '.'.'..'.'," 8H Section 28 .....'...' 84 Section 29 .*..!*.!!' 8ft Section 30 !!.'!!!!" S5 Section 31 !.!.*!! 8G Section 3'/i 37 Section 33 , '.'...'.'..,', 37 Section ?A .'.'..'.. 38 Section 35 '....'. 88 Section 36 .'.".'.*.".'.".■.'.".*. 38 Section 37 33 THE FORGERY ACT. 32-33 Vict., ch. 19. 1 . . . . 65 2 fi/ 3 67 4 68 6 69 6 72 7 73 8 76 9.!.....:: .... 77 10 78 11 79 12 13 80 81 14 82 16 87 16.......... gq 17 18.......... 90 91 19 92 20 93 21 94lSection 42 Section 22 94 Section 23 '..'..,', 97 Section 24 !!!.!!!.' 99 Section 25 '.'.'.'.', 100 Section 26 '..'.'.'. 106 Section 27 ,'.'** 109 Section 28 [[ m Section 29 112 Section 30..... [[[[ 113 Section 31 '..'.'.'.'. 113 Section 32 ,..!!! 130 Section .33...,. [[ 130 Section 34 [[\ 231 Section 35 ,, 133 Section 36 ][ 133 Section 37 .V. 134 Section 38 ..........V 136 Section 39 137 Section 40 133 Section 41 139 rl 139 TABLE OF STATUTES. §!l!?" 1? UOISction Section 44 143 Section 45 .'.' 144 Section 46 , i4g Section 47 ] 45 Section 48 .'.'*,' 143 Section 49 .'.''.'. 149 Section 60 ' '. .'.'.".'.*.' 159 Section 61 159 62, 151 Scetion 63 ....'.'.'" 151 Section 64 '. .... 154 Section 65 .".",'".,*!!* I55 Section 66 '......". 166 Section 67 .*.'". 15 t Section 68 .'.'".'.. ." .' .* 1 57 Section 69 !!!.'.'.'.'." 168 THE TRADE MARKS OFFENCES ACT. 36 Vict. oh. 32,, OFFENCES AGAINST THE PERSON ACT. 113 32-33 Vict., eh. 20. Section 1 igj Section 2 [[, jgi ^ection 3 .'.■.'.'.■.■ ; ; ; ; ; 220 Section 4 2i\ Section 6 .'.!.!!.!.'.,' 192 Section 6 , , . ' 162 <^ection 7 '.!',.'.'!. 222 Section 8 225 Section 9 ........*. 236 Section 10 .'....,, \. 227 Section 11 .*!....... , ,* 231 Section 12 ..'....'.'..' 232 Section 13 '.....'.'...' 233 Section 14 .* ..,,,,/_ 231* Section 15 240 Section 16 ........... 243 Section 17 244 Section 18 '....'....., 233 Section 19 ....,..., 249 Section 20 " 253 Section 21 254 Section 22... ".'.' *' ' 255 Section 23 .' .' ." .' '..''." 255 Section 24 , 256 Section 25 ". ..'" 257 Section 26 260 Section 27 * 262 Section 28 , , 263 Section 29 ....*.'*'.. ' ^63 Section 30 265 Section 31 .'....'.'. 268 Section Section Section Soction Section 32 33.. 34.. 35.. .36. 268 269 279 280 281 c„ .. ■■ ^ni sect -^^c^'«» •'57 282|sect Section 38 283 Section 39 ...',... 285 Section 40 .......'. ', 287 Section 41 .' 288 Section 42 .* .' ' 289 Section 43 .... . . . . . . * 293 Section 44 ....'. .....'. '. '. 293 Section 45...... .. .|., "*.'.'.' 294 Section 46 ,.!..'!!! 294 Section 47 ],', 298 Section 48.... .'.*.'.'.'.' 307 Section 49 "" 397 f^^'jjo'i 50 ;.;;; 313 Section 61 314 Section 52 315 Section 63 ...,.'.'.' 317 Section 64 ..*.'.* 318 Section 65 322 Section 66 .".'..'.'.* 323 Section 57 " . . 32,5 Section 68 '.'■.','. ?,2(i Section 59 ... , * .' .' '^Si> Section 60 ......'!. 3.38 Section 61 ,', 339 Section 62 340 Section 63 .' 344 Section 64 '._ 345 Section 65 [[[ 34^ Section 66 347 Section 67 .] 347 Section 68 , ,' 343 Section fi9 .......' 349 Section 70 '...',' 350 Section 71 '.' 350 Section 72 ' 35[ Section 73 .] 351 ion 74. 352 TABLE OP STATUTES. XI Section 75 362 Section 76 362 Section 77 363 Section 78 364 Section 79 355 Section 80 355 Section 81 365 THE LARCENY ACT. 32-33 Vict., ch. 21. Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section 1. 2. 3. 4. 6. 6. 7. 8. 9. 10, 11. 12. 13. 14. 15. 16. 17. IS. 19. 20. 21., 22., 23.. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43.. 44. 45.. ,. 400 ,. 404 . 404 . 413 . 414 . 415 . 4:8 , 418 . 419 . 420 . 421 . 422 . 423 . 424 . 426 . 431 . 432 . 433 . 436 , 437 . 438 , 440 442 443 444 444 446 447 447 448 449 449 450 451 451 451 452 452 467 457 458 474 477 479 482 Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section 46. 47. 48. 49. 50. 61. 62. 53. 64, 55. 66. 57. 68. 59. 60. 61., 62., 63., 64., 66.. 66.. 67.. 68.. 69.. 70.. 71., 72., 73.. 74.. 75., 76.. 77.. 78.. 79.. 80.. 81.. 82.. 83,, 84,. 85.. 86.., 87.., 88.., 89,., 90... ,. 484 ,. 486 ,. 487 .. 504 ,. 606 . 608 . 612 . 612 . 614 . 618 . 622 , 624 . 624 . 625 . 629 . 629 . 532 , 635 . 536 , 637 , 610 , 610 641 642 644 663 664 645 545 566 667 670 670 570 572 673 674 574 674 675 575 676 576 577 678 ¥' '^ zii TABLE OP STATUTES. Section 91 ,, 579 Section 92 , [][' 579 Section 93 534 Section 94 602 Section 95 " " 503 Section 96 604 Section 97 j.'*' 604 Section 98 "'" 606 Section 99 ........[. C06 Section 100 ;.....," 607 Section 101 ,.,,..,..'] ' 608 Section 102. ......;.,..,' 609 Section 103 ..........'.'.' ,' " [ " 609 Section 104 ..........' j .','" ' 609 Section 105 .,,......,'.'.".'.',' ' 610 Section 106 !!!...... 610 Section Sectioii Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section S ition Section Section Section Section Section Section 1, 2. 3. 4. 5. 6. 7. 8. Sf'tion 108.. -,«. Section 109 ' ^\Z Section no...... ^^ Section 111 ^i^ Section 112.... £.,; Section 113.....'.* lH Section 114 It^ Section ]15 ^H Section 116.... '" ^H Section 117 ' ^3* Section 118.... * ^i^ Section 119 "' ^H Section 120..., -U Section 121 5^° Section 122..... Hi Section 123.. '■ ^-,1 040 THE LARCENY OP STAMPS ACT. 35 Vict., ch. 33. ^'<"^°" 1 640 (Section 2. THE MAIilOIOCS INJURIES ACT. 641 32-33 Vict., ch. 22. 641 645 646 649 650 651 661 Section Section Section Section Section Section Section Q 653 Section irt' • 655 Section jV 655 Section \L 666 Section ii 666 Section {^ • 668 Section ij 668 Section j^ • 66l|Section Id 17.. ;*" 18......... ■" 19....... ■■■ 20 ; "■ 21 "•■ 22......,, 23 24. ■ ..' 662 Section 664 I Section Section Section Section Section Section Section Section 666 667 669 669 669 671 672 2f 672 Section 26 674 I Section 27. 28. 29. 30. 31. 32. 33. 34. 35., 36.. 37.. 38.. 39.. 40.. 41.. 42.. 43.. 44.. 45.. 46.. 47.., 48.. 49... 50... 51... 62... .. 67<5 .. 677 ,. 678 . 679 . 679 . 680 . 680 . 682 . 683 . 684 . 685 . 686 . 687 . 688 , 688 , 688 691 692 692 692 693 695 695 696 697 698 TABLB OF STATUfBS. XIU Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section 63. 54. 56. 66. 67. 58. 59. 60. 61. 62. 63. 64 709 J Section 76 THE PERJURY ACT. 32-33 Vict., ch. 23. 698 : Section 66 -taq 699 i Section 66.... ^aq 701 (Section 67... iin 701 i Section 68... 71 a 702iSection 69.. in 703 i Section 70.. ' i,\\ 704iSection 71.. n\\ 705 i Section 72.. '""" ' -rli 706 I Section 73... ' ' i\i 707 iSection 74... i,\i 708 ISection 75.. i^t 725 1. 2. 3. 4. 6. 6., 726 726 737 738 738 739 Section 7 Section 8 '.'..'..*.'.'.'* 743 727 Section 9 732 Section 10 7]: Section 11 .*.'.'.'.'.'." 743 Section 1 . Section Section Section Section Section Section Section Section Section Section Section Section Section Section 1. 2. 3. 4. 5. THE VOLUNTARY OATHS ACT. 37 Vict., ch. 37. '47 I Section 2 743 THE PEACE ON PUBLIC WORKS ACT. 32-33 Vict., ch. 24 753 THE ARMY AND NAVY OFFENCES ACT. 32-33 Vict., ch. 25. ♦ Section 6 Section 7 .'.".'.!.'.'.* 766 Section 8 ....'.'..'.'..'. 756 Section 9 754 764 755 765 755 756 766 756 766 THE MILITARY AND NAVAL STORES ACT. 32-33 Vict., ch. 26. 1. 2. 3. 4. 6. 6. 7. 8. 9. 758 758 758 758 769 759 769 769 760 Section 10 7gQ Section 11 ' ] ] * 7gj Section 12 '.'.'..'. 761 Section 13 , . 761 Section 14 [] 7g [ Section 16 [[[\ 751 Section 16 762 Section 17 ...'.'. 762 m ■51 X17 TABLE OF STATUTES. Section 1 THE ORCELTY TO ANIMALS ACT. 32-33 Vict., cli. 27. S'^jion 1 765 Section 7,... >je^ §««.t!0'» 2 766 Section 8... IVr f«°t?on 3 766 Section fecjion 4 766 Section S^*'*!^" 5 766 Section Section 6 757 8. 9. 10. 11. Section 1 . THE VAOBANTa ACT. 32-33 Vict., ch. 28. 769 Section 2. 767 767 767 768 770 Reports 1 i^ *!,„ -0--^ — -v,.v.w,.c ui uie U0QK8 most irequently cited in these pages, besides the Reports of cases, and the Criraina: La^r tomniissioners' ^ '- Archbold Burn's Justice J}}}' St«phen's Commentaries '.'.'.'.[ ,f, Ruseel] Crimes and MisdemeunorsVby Greaves'. 4th Broom's Commentaries..., ?,V^- Taylor, on Evidence r,"- Hale, Pleas of the Crown. ,':/ V ' " ' • "'• Hawkins, Pleas of the Crow^ ^'* American. East, Pleas of the Crown "V. Ui RosLf fe.VvSrce'"' ^"^"^^ and flaynes'Veprini; is?.^: Wharton's Law Lexicon....! Si Greaves' Consol. Crim. Acts ...'.■.■.' n^J' Blackstone's Commentaries iS, ' Starkie, Crim. Pleading VS" Bishop, Crim. Law... |"f Bishop, Crim . Procedure'. ..."..*,■; oIa Bishop, Statutory Crimes It TABLE OF CASES CITED. (See the second Volume for this Hat in alphabetical order.) 'i '■ _ PAGE Bennet V. Wafaon... 717 Coetar V. Hetherington ....',' 296 Eleniore v. St. Briavels 646 Hoye V. Bush 200 Hancock V. Somes .' 296 Hamilton V. Rex 697 Hopkin V. Crowe * 768 Martin v. Shoppee. 300 Morris v. Wise .' 447 Merriman v. Hundred 01 Chippenham 468 McPherson v. Daniels '. 176 O'Neil V. Longman 290 Read v. Coker 300 R V, Rogers \ 3 R V. Gerrish 3 R V. Williams ,,., 3 R V. Varley ..',',' 5 Morris 5 Robinson g Connell , g ^T^yne .....'.*,' 6 Case 7 Lavey s R V. Turner \\ g R V. Turner \\\\ g R V. Woolridge \\ 1 1 R V. Joyce 11 R V. Hedges .* 11 R V. Franks .* k R V. Page * 15 R V. Ion , . '" * 15 R V.Welch WW 15 R V. Greenwood * ig R V. Hurse ' ig R V. Else .,' ig R V. Manners ' ig 5^?*ge '■'. 16 it V. Jones ^. ig R V. Price ,' ig R V. McGinnes..... . 17 Martin 19 Goodwin.. 19 Robinson 20 Lennard ...,,...,..,., gg R Rv. Rv. Rv. Rv. Rv. R R R R V. V. V. PaOB: R V, Sutton 28 R V. Foster .* 28 R V. Ridgeley *. 28 R V. Bannon 28 R V. Roberts 29 R V. Grover 29 R V. Richmond W. 29 R V. Rogers 29 R V. Weeks 30 R V. Harvey 3Q R V. Collins ' 42 R V. Chadwick 42 R V. Ritson 43 Rv. Hill '44 R V. Geach 44 R V. Birkett 44 R V. Wilson 44 R V. Hodgson 45. R V. Hodgson 4g Rv. Tylney 48 R V. Marcus 48 R V. Nash 48 R V. de Berenger 49 R V. R V Rv Rv Rv R V Rv, Rv. Rv. Rv. Rv. Rv. R V. Rv. Rv. Rv. Rv. Rv. Rv. Rv. Rv. R V. 50 50 50 60 50 Peck . King . , Bircn . , Tylney Hevey Higgms 51 Hotigson 52 Nash 62. Mazagora 62 Crooke. 53 Goate 53 HolJen 63 Shcphard 63 Trenfield 63 Crowtlier 63 James 53 Boardman 63 Todd 63 Powner 63 Asplin.... 63 Elliott 64 Post 64 P xn TABLC OP OASES CITED. P XJ 1 ^^°^ n V. Hodgaon 54 R V. Lewia 54 R V. Bolland 64 R V. Lockett 65 R V. Parkes 66 R V. Proud 65 R V. Sheppard 65 Rv, Wiley 65 R R R R R R R R V. Francis 55 '^ Webb. ;. 65 Watts 65 Mitchell ' * 65 Bontien 65 Rogers 65 Tafl 65 R V. 1'ayior 55 R V. Marshall 55 R V. Wiley 65 R V. Francis 55 R V. Hart 65 R V. Wilson 65 R v.. Close 55 R V. Dunn 56 Rv. Wall. R R R R R R R R R R 66 V. MofFatt 66 V. Mcintosh * 66 V. Lyon 56 V. Lee 66 V. Hawkeswood 66 V. Morton 57 T. Roberts 57 V. Da vies 57 V . Teague 57 V. Welch ' 67 R V. Ion 57 R V. Shukard 68 R V. Radford 53 R V. Ion .' 68 R V. Giles [ 69 Palmer & Hudson 69 Foster 59 Harris 59 V. Millard * 59 V.Sunderland .' 59 V.Hodgson 59 V. Kirkwood 59 V. Martin 59 v-Hough ;;;;; 59 V. Weeks 59 V. Aston .....'. 59 ' ■ v.*.'.".' 60 ••• 60 R V. R V. R V. R V. f: R R R R R R R V. Lewis R V. Oddy V. Whiley and Baines "^60 K V. Bail an Rv.Salt JX Rv. Nesbitt ,.'.'.'.'. 60 R V. Harrison .'.*.*.".'!.* 60 R V. Green en Kv.Millard ZW::] ll Phi ipps 60 tooke 6Q Browne. '.'.'., 61 Cooke ..*.*....' . ! .' 61 Forbes fii Hill..........::::;:;: ef Todd Rv. Rv. Rv. R V. Rv. Rv. R V. Rv. Rv. Rv. R R. R R R R R V. V. V. V. V. V. V. 83 84 84 84 86 86 86 Vauglran :.'.';'.'.'.'.'.'.'. '.'.'.' 62 Cooke 62 Geach \''' ' ' 62 Higgins. ......;. .■;;:;; 64 «#y- 64 toihcott 83 f «!;!.• ■■.'.■.'.; 83 ^spl'n. 83 A&y;;;;;;;;;;;:;.- «' R V. Page R V. Ion ::::::: R V. Page. Rv. Alfday.. .*;;■.■ .'.'," R V. Page '/,, R V. Ion . ; .;;;;. R V.Hodgson.... ■.'.■.■.'.■;;.■.■; sr K V. Holden 88 R V. Palmer ; ; ; ; ; 89 Scares.. ;;;; 89 Stewart ; ; ; ; 89 Giles ; ; ; ; 39 Rowley *_ 90 Brackenridge ' 96 Keith. ...:;:; 9^ Warshaner. 96' g""« ".*.'.'. 96 Ball ... 96 Hannoa 97 Rinaldi 97 R V. Mazeau 97 R V. Lyons.. 93 R V. Pauntleroy... ::.: 93 R V. Ritson 99 R V. Morton 99 Rv. Tylnev :::;:: lOo Rv.Murphy 100 R V. Sterfmg . . . , ] qO v. R V. R V. R V. R V. R V. Rv. R R R R R TABLE OP 0A8E8 CITED. ^ii R^ Page V. Coogan ]00 Kv. Avery loo « V. Fitzgerald 100 « V. Chieholni 103 §v- Box 103 w V. Kinnear 103 R V. Hawkee 103 g^- Curry 103 K V. Mopsey 103 K V. Bartlett 104 R V. Smith ] 04 R V. Howie 104 R V. Blenkinsop 104 R V. Mitchell ' " 104 J^'&Ps-- '..'. 104 K V. vVinterbottom 106 R V Neebiit 105 gv.Webb m « V. Arscott 106 R V. Thorn io6 R V. Kay 107 R V. Taylor io7 R V. Willoughby .".■;;■. 107 Kv. feheppard 107 R V. Smith 107 R V. Mcintosh 107 Rv. Curry 107 Howie 107 Bamfield ,[', 107 Anderson 107 ?eed ;; 107 p ^fyce 107 •K V. Stone 107 R V. West 107 R V.Rogers ■.■.■;.■.■.'. 108 ^^•^nelJing 108 n V, Morrison log S'^-Mge ■.".■.■.■.■.■ 108 Kv.Carney log ^^•£»"^'\- 108 K V. Pulbroke log R V. Thomas 108 S^-JlioJ-n ■■.■.■'.■ log " ^- |yaV« 108 R V. Fitch.. R V. Howley R V. Moody . R " ■ - R R V. Gooden ." , . 109 R V, Chambers inq R V.White ..==....■.;;: ul R V. Rv. R R R R R Kay. Smith. Rv. Rv. R R Rv. Paoc , 111 . ^ , 129 ^- gooden i3Q V. Evans 132 V. Richmond .,,.'..'.', 132 Powner 134 V. Powner 137 R V. Sharpe 142 R V. Bowen ," 1^2 R V. Asplin ,' 74'> Rv.waveii ::::;•• m R V. Garrett 144 R V. Adams I44 R V. Connell .'."."/' 144 R V. Lee '"[ 143 R V. James ....'. 149 R V. Smythies 149 R V. Whiley i^a V. VVilhams isq 'R V. Smith ]/'[ 154 R V. Avery '//_[ 154 R V. Hayward ' 154 R V. Farley "Til 5 --Tuffs •.;:::::: HI V.Hughes 165 ^aguire 155 Holland jgi Pfv- .■.'.■;.' 164 Mclntyre i(t4 Martin -ica Webb :::::;; [ii Selton iQij v.Mavnard...... ;;;;;;;; igg ~ risher. R R V. Rv. R R V R R R R R V. V. V. V. 108 108 109 V, Smith \\'[ iQ^ V. French ," ,'."." .' _' |o9 V. nsner igg R V, Fisher ...!..'. 169 R V. Lynch ..."!.. 169 R V. Maynard .........'....'. 169 R V. Noon \ ig J R V. Maeon ...[ 17ft ''V.Welch :::;; nJ V. Rowley [ 172 V. Roth well ] ][[ 172 V. Noon * i7g V. Harvev .";;;; i7g V. Campbell i7g V. Lee [[ 179, V.Martin \[[ igQ, V. Haynes igo Kv.Dixon i8(v Rv. Pitts igi^ R V. Shaw. igi^ R V. Siiiith i^g J R R R R R R R R R I, ' • •• XVUl TABLE OP CASES CITED. Rv, Rv Rv, Rv Rv Rv, R R R R R R R R R V. it v. Rv. Rv. Rv. R V. R V. R V. R V. R V. R V. Rv. Rv. Rv. Rv. Rv. R v. R V. Rv. Rv. Rv. Rv. R V. Rv. Rv. R V. R V. R V. Rv. R V. il V. R V. Rv. Rv. R V. Rv. Rv. Rv. Paoe Macdaniel 181 Poulton 182 Enoch 182 .Trilloe 182 Snellia 182 Wright 182 Blain 182 Senior 182 Michael .'18.'} Johnston 18.3 Winslow 18.3 Geering 184 Garner 184 Cotton 184 Gordon 185 Ford 186 Wooemer 186 Howarth 187 Hagan 187 Young 189 Cuddy 190 Dyson 192 Alison .. 192 Burgess 1 92 Doody 192 Maloney 192 Chatburn 193 Smith 193 Gaylor 194 Taylor 194 Fisher 196 Lynch 196 Hayward 196 Eagle ]96 Kirkham 197 KcHsel 197 Whiteley 197 Ayes 197 Young 198 Thompson 198 Curvan 198 Withers 1 98 Hood 199 Patience 199 Chapman 1 99 Weir 200 Fray 201 Martin 202 Campbell 202 Towers 202 Wiggs 203 Hopley 204 Page R V. Cheesenian 204 R V. Griffin 204 R V. Hughes 205 R V. Smith 205 R V. Ledger 206 R V. Walker 205 R V. Swindall 20ti R V. Dant 206 R V. Hutchinson 206 R V. Kew 207 R V. Jones 207 R V. Birchall 207 R V. Allen 207 R V. Green 207 R V. Taylor 207 R V. Trainer 208 R V. Benge 209 R V. Van Butchell 209 R V. Williamson 209 R V. St John Long 209 R V. St John Long (2nd case) 209 R V. Webb 210 R V. Spilling 210 R V. Spiller 210 R V. Smipson 210 R V. Ferguson 210 R V. Crick 210 R V. Crook 210 R V. McLeod 210 R V. Whitehead 211 R V. Noakes 211 R V. Spencer 211 Rv. Bull 211 R V. Markuss 211 R V. McLeod 211 R V. Senior 212 R V. Edwards 212 R V. Saunders 212 R V. Smith , . 212 R V. Marriott 213 R V. Horsay •. . 214 R V. Bernard 221 R V. Banks 221 R V Smith 223 R V. Bull 22.3 R V. Scully 225 R V. Powler 228 R V. Harley 228 B. V. Cadman 228 R V. Michael 229 R V. Lewis 229 Rv. Briggs 229 Si I TABLE OF CASES CITED. :dac Page R V. Wood 230 R V. Harris 230 R V. StovenH 230 R V. Murrow 230 R V. Hunt 230 R V. Strange 230 R V. Murphy 230 R V. Roxburg 231 R V. Archer 231 R V. Burgees 231 R V. Rvan 232 R V. Willianis 234 R V. Carr 234 R V. Harris 234 R V. Cadman 234, R V. Dale 236 R V. Smith 236 R V. Mister 237 Rv. Stopford 238 R V. Smith 238 R V. Mountford 239 R V. Hunter 241 R V. Llovd 241 Rv. Paddle 242 R V. Burridge 242 R V. Jones 242 R V. Grunwade 242 R V. Tyler 242 R V. Girdwood 242 R V. Boucher 242 R V. Ward 243 R V. Ryan 245 R V. Briggs 245 R V. Duffin 246 R V. Boyce 246 R V. Gillow 246 R V. Cox 246 R V. Stoplbrd 247 R V. Fretwell 247 Rv. Cox 247 R V. Marsden 248 R V. Roxbury 248 R V. Cunningham 24:8 R V. Oliver 250 R V. Yeadon 250 R V. Taylor 260 R V. Canwell 260 Paqb R V. Philiwtt 260 R V. Palkingham 282 R V. White 262 R V. Crawford 264 R V. Murrow 265 R V. Holroyd 270 R V. Court 271 R V. Bradford 271 R V. Bowray 271 R V. Upton 272 R V. Monaghan 272 R V. Verelet 286 R V. Gordon 286 R V. Murphy 286 R V. Newton 286 R V. Forbes 286 Rv. Ward 251 R V. Wilkins 257 Rv. Rugg 259 R v. Chandler 260 R V. Hogan 260 R V. Davis 287 R v. Bunn 292 R v. Shaw. 295 R V. Walker 29T R V. EIrington 297 R V. Stanton 297 R V. Morris 297 R v. Basset 297 R V. Westley 298 R V. Pearson. 298 R V. Oliver...... 299 R V. Yeadon 299 R V. Sparrow ; 299 R V. Martin 301 R V. Meredith. . , 301 R V. Cockburn 301 R V. Mehegan 301 R V. Read 301 R V. Johnston.... 301 Rv. Ryland 301 R V. Guthrie 301 R V. Beaie 301 R V. Wollaston..... 301 R V. Williams 302 R V. Saunders 302 R V. Mayers 302 R V. Lock 302 R V. Woodhurst , 302 R V. Day 30^ R V. NichoU 303 R V. Rosinski 303 R V. Williams 309 R V. Clarke 309 R V. Barrow 309 R V.Jackson 310 R V.Barrett 31« I XX TABLE 0» CASES CITED. pi m m it V. Fletcher 310 B V . Camplin 310 R V.Mayers 310 Kv. Hodgson 311 •K V. Cockcroft 311 R V. Holmes and Furneas. .! 312 R V. Hodgson 312 R V. Cockcroft ' .' [ 312 R V. Robins ' 312 R V. Hapeood 312 ''oyp .' 313 ^^ead 316 (hithrie 316 VVoodhurst .[[ 316 R V. Lock [[ 316 R V. Ryland ' ' " 315 Rv. Johnston 31(5 V. V. Rv Rv Rv Rv TT „. Paob HoHis 3.^8 Isaacs ggg Hillman .'." 339 Berrinian ' " 341 V. Cohjier ' ' " jj^j V. Goldthorpe 341 ^•Perry ;.;;: 341 ^•george 341 ''•^'■own 342 V. took 342 Williams | '' 342 R V. Bates ,'.'/_" ' 343 R V. Cole ...,.,,. 343 R V. Maynard . . .'.' 343 R V. Jacobs ' ' 344 R V. Martin oAa «v..onnflion 316 I R v. Wollastou. ... gS Rv.Cockburn 316 R v. Lock ,}? K V. Martm 315 R V. Wollaston 316 R V. Lock R R R R V R V R R R R V R V R V o Q. " 316 Rv. Shott 316 R V. Holmes & Furness . . . . . 317 R V. Wakefield 320 R V. Dunn '..,.. 322 R v.Mankletow ] . 323 R V. Timmins * , . 323 R V. Hibbert. . ., ." ' 324 R V. Booth '.',*■, 324 R V. Mycock ..'.'.' 324 R V. Jacob ,' .' 32f^ R v.McQuiggan .■*.■ 329 « V. Creamer 329 K V. Newton 33Q R V. Allison .' .' 330 R V. Rea 33Q R V. Brown 330 ^ ^- fanning 330 f ^len 330 ^".""ley .330 Sf'ggs 331 tiUis 332 '^"rner .".'.'.".."■; 333 R V. Rv. R V. Rv. R V. R V. Curgerwen 333 R V.Fontaine ;.'.' 333 S^- Jones 334 V. Horton 334 Turner 334 Gibbons 334 Heaton " 335 ^cQu'ggan .'.'."." 335 Wilson 337 R Rv R Rv R V, Rv, V. R V. Thurborn 355 R V.Guernsey .;.:; 355 g^S?]ioway 356 K V. Middleton qfif! R V.Willis ;.*.■;; 35? R V. McNamee ' 350 R V. Harvey 350 R V. Jackson ' 350 R V. Robinson 350 R V. Jones 360 R V. Thompson 36I g^gf.«« '.y. 361 R V. Williams 36I R V. Robson " ' 361 ' R V. Brazier 35] R V. White 361 R V. Spears ' ' 351 R V. Abrahat ," 361 R V. Reid \* 361 R V. Frances ..'.'.*" 362 R V. Bull ]"' " 362 Rv. Bazeley .'.■.■.';■..'.■ 362 K V. Waite 352 R V. Pear ' ' " 363 R V Semple .'.'.'!.'.'." 363 K V. Fearce 353 R V. Stock 363 R V. Bramley .',, 353 R V. Campbell .' .' ,364 R V. Small .' " 364 R V. Hazell ' ' 365 Rv.Slowby ;*.■.'.;; 366 R V. Gilbert 355 R V. Pratt 366 TABLE OP CA8E8 CITED. XXI ta,i Paok K v; Sheppard 366 R V. Hench 366 R V. McKale 367 R V. Adams 367 R V. Wilson 367 R V. Thompson 367 R V. Barnes 368 R V. Jacobs 368 R V, Prince 368 R V. Harvey 368 R V. North 369 R V . Nicholson 369 R V. Rilev 370 R V. Williams 371 Rv. Wells 371 R V. Hoare 371 R V. Garrett ' 371 R V. Hassall 371 R V. Bunkall 372 R V. Davies 372 R V. Robaon 372 R V. Denmour 372 R v'. Harrison 372 R V. Avery 372 R V. Tolfree 372 R V. Clarke 372 R V. Featherstone 372 R V. Berry 373 R V. Tollett 373 R V. Thompson 373 R V. Motters 373 R V. Pitch 374 R V. Deer 374 R V. Rosenberg 374 R V. Harrison 375 Wilkinson 375 Bramley 376 Morris 376 Robson 376 Cohen 376 Torpey 377 Oruncell 378 . Walsh 378 Thompson 378 R V . Cherry 379 R V. White 380 R V. Firth 380 R V. Standley 380 R V. Harding ' 380 R V. Morris 331 R V. Walker 381 .fi V. Corry 391 V. V. V. R R R R R R R R R V. V. v. Shlckle 381 "««••• '. 381 Townley 392 Gnllears 382 K V. Bird 383 R V. Jacobs ■ 384 K V.Hall ;.; 386 Mucklow 385 Phillips 386 Hennmgs 386 Peering 386 Wade 386 Middleton 388 Kerr 388 Reed 383 Peters ?ss R V. Mole 388 R V. Thurborn .' 388 R V. Dixon 388 R V. Christopher 388 R V. Moore 333 R V. Glyde 389 R V. Deaves 389 R V. Glyde 390 R v; Knight 390 Matthews 391 Wynne 391 Lear 391 West 391 Pope 392 Mole 392 Preston 392 Trebilcock.. 392 Mirfit 392 Gruncell 392 Handley 392 Privett 392 Jones.. 392 R V. Cabbage 392 R T. Jones 392 R V. Partridge 393 Mockford ; 393 Burton ; 393 Gorbutt 395 Gumble 396 Marks 396 King 397 Twist 397 Kendall •. 393 Hilton 398 Langmead 398 Haigh 404 v; v; v; V. R Rv. Rv. Rv. R R R R R R R R R V. Rv. Rv. Rv. R R R R R R R R V. V. V. V. i vAi TABIC or CASIg CITSD. V. V. V. R R R R R R R R R R R R V. R V. Rv. Rv. Rv. R R R R R R R 1 ipr a Page V. HaMftll 406 V. Robflon 406 V. Denmour 406 V. WelU 408 V. Reeves 408 V. HaHBall 408 Oarratt 408 Hoare 408 Bunkall 408 Daviee 408 Loose 409 Jackoon 410 f^'Hg 411 HenderBon 4I 1 Kichmotid 41 1 MatthewB 412 Aden 413 DayncB 413 V, Heywood 414 V. Young 414 V. Heywood.. . . 4I6 V. Jones 416 V. Heywood 416 R V. Firth 4I6 R V. Hcnwoolf«'i 560 xtv. Oooke 66Ji R V. Beaumont ' 551 R V. Thorp [ 561 R V. Harris [ ^qi H V. Sullens 561 Lister .■.';;;;; 5^ rueJder 552 Walstenholme 562 Jackson 562 }l^^^ .".'.'.' 562 WortJey....^ 562 l^rove 662 Lambert 562 Moab Rv. Rv. Rv. R R R R R R v. V. V. V. 557 .557 , 562 ^- Jones 562 V. Chapman 552 ^•,^'"S 563 V. Wilfiams 563 V. lownsend 566 Borrett .■;;; 566 V. Belstead 567 ^•cooDer ;;;;; 530 „ ^- ^ojde 580 li V. Prince i-iQn R V.White :.,■;;.■ 580 R V. Gomm [ 530 R V. Fletcher 530 R . Roebuck ',* ] 535 R R R R R Rv. Rv. Rv. R 1.x n 4 XXVI TABLE OP CASES CITED. Paoe R V. Eagleton 685 R V. Hensler 585 Rv. Gorbutt 687 R V. Adams 587 R V. Bryan 687 R V. Mason 688 R V. Airey 688 R V. Goodhall 688 R V. Johnston 588 R V.Lee 588 R V, Fry 688 R V. West 588 R V. Jennison 588 R V. Giles 688 R V. Henshaw 589 R V. Steels 689 R V. Wickham 589 R '-. WooUey 689 R V. Ball 589 R V. Roebuck 689 R V. Young 689 R V. Jessop 589 R V. Hughes 539 R V. Mills 590 R V. Roebuck 590 R V. Brooks : . . . . 690 R V. Dale 690 R V. Gardner 590 R V. Martin 690 R V. Watson 590 R V. Evans 590 Rv. Stone 690 R T. Barnes 690 R V. Thompson 590 Rv. Flint 590 R V. Jackson 690 R V. Parker 690 R V. Spencer 590 R V. Wickham 590 R V. Philpott 590 R V. Freeth 690 R V. Story 690 R V. Jones 590 R V. Barnard 591 R V. Crab 591 R V. Dowey 691 R V. Davis. '. 692 R V. Burrows 592 R y. Meakin 693 R V. Williamson 693 R V, Mills 693 R V. Hensler 594 Page R V. Howarth . . , 694 R V. Carpenter 695 R V. Walne 696 R V. Kilham 595' R V. Kinrick 59fr R V. Abbott 59& R V. Burgon 59& R V. Roebuck 69ft R V. Sherwood 596 R V. Bryan 696 R V. Ragg 696 R V. Goes 596 R V. Lees 596 R V. Ridgway 696 R V. Pratt 69ft R V. Lee 59ft R V. Suter 59ft R V. Ardley 69ft R V. Gates 596 R V. Wakeling 596 R V. Copeland. 697 R V. Jennison 597 R V. Archer 697 R V. Bloomfleld 597 R V. Asterley 597 R V. Crosflley 597 R V. Kilham 697 R V. Naylor 697 R V. Henderson 597 R V. Philpotts 697 R V. Bowen 597 R V. Adamson 597 R V. Ady 697 R V. Hewgill 697 R V. Hill 598 R V. Wickham 598 R V, Bates 698 R V. Dale 698 R V. Hunt 698 R V. Bulmer 598 R V. Jennison 598 R V. Brooks 598 R V. Adamson 698 R V. Chadwick 598 R V.Holt 598 R V. Welman 599 R V. Danger 699 R V. Boulton 699 R V. Beecham 599 R V. Greenhaigh 699 R V. Wavill 599 R V. Garrett 699 TABLE OF CASES CITED. XXVIl Page R V. Crosby 599 R V. Williams 599 R V. James 599 R V. Willot 600 R V. Ardley 600 R V. Brjan 600 R V. English 601 R V. Lince 601 R V. Radclift'e 601 R V. Morland 601 R V. Kerrigan 602 R V. Garret 602 Rv. Danger " 603 R V. Moss 605 R V. Hudson * 605 R V. Darmley 605 R R R R R R V. V. V. V. V. V. Rv Rv. R Rogier 606 Bailey 606 Adams 607 Beeton 611 Jervis 611 Baxter 611 R V. Woolford 612 R V. Caspar 612 R V.Hughes 612 R V. Huntley 612 R V Craddock 612 R V. Wilson 613 R V Golismith , . 614 Hill 614 Wiley 614 Smith 614 R V. Hobson 614 R V. Dyer 614 Craddock 614 Hilton 614 Hughes 615 Perkins 615 „ D"ng 615 K V. Woodward 615 R V. Walkley 615 R V. Cowell * 616 R V. Butteris 616 R V. Gunnell 616 R V. Roberts 616 R V. Richardson 616 R V. Davis 616 R V. Densley ' 616 R V. Cordy '. 616 Rv.M'Athcy .■;;.■ 616 it V. HasJam 616 R V. Turner .,' 616 V. Rv. Rv. Rv. Rv. R V. V. Rv. Rv. R V. Cox 616 R V. Baldwin 616 R V. Dunn [ Qia R V. Davis 616 R V. Nicholls 616 R V. Mansfield .'.,', 616 R V. Oddy ['[[ 617 R V. Adams 617 R V. White ',,[[[ 617 R V. Langmead ' 617 R V. Deer ' 617 R V. Smith .'.".',' 617 R V. Cogeins '.'.'.'.'.'.'. 618 R V. Phillips 626 R V. Holloway 626 Poole .■.'.■;; 626 KUham 626 R V. Pierce 630 R V. Stancliffe 630 R V. Goldsmith 630 R V. Smith " 631 R V. Atkin ,[,[] 631 R V. Macklin ',.',' 631 R V. Macklin ] .' ,' 632 R V. Stancliffe 6.33 R V. Ledbitter , ,, 634 R u. Pascoe . , .' . 634 Ru. O'Donnell " 634 g^King ,. 634 R V. J urner 642 R V. Lewis ' 642 R V. Warren 645 V. Fletcher * .' 645 V. Connor * 646 ^- Allison ; ; ; ; 646 v.Kimbrev 646 R V. England 646 R V. Jones 647 XL R R R R R R R R R V R V R V Rv Rv Rv Rv R R V. Amos 648 ^•Colley .■;; 648 ^'•Edgell 648 V. Newboult 648 ^•5. 648 V . Kitson 649 ^'•^fch ;; 649 ^•E'lgell 652 V. Manning 652 ^'•kvoiif. 653 Heseltine 654 Batstone 654 Cliilcl.. 654 ilesolfme 655 V. XXV 111 TABLE OP CASES CITED. R R R R R R R R R R R R Rv. Rv. Rv. Rv. Rv. Rv. Rv. Rv. R V. Rv. Rv. Rv. Rv. R V. Rv. R V. Rv. Rv. R V. Rv. Rv. R v. R V. R V. R V. R V. Rv. R V. R v. Rv. R V. Rv. Rv. Rv. Rv R V R v Page .Taylor 668 . Olavton 658 .Howell 659 . Brown 659 . Sheppard 660 .Howell 661 . Tacey 667 . Fisher 667 . Mackerel 668 . Fidler 668 , Bartlett 6G8 Weat 668 Foster 668 Turner 670 Newill 670 Woodward 670 Swatkins 670 Spencer 670 Aris 671 Price 671 McKeever 671 Satchwell .. 671 Whiteman 674 Lewis 674 Dotlson 675 Martin 677 Jones 679 Oxfordshire 686 Derbyshire 686 Bradford 690 Hadtield 690 Hardy 690 Chalkley 693 Mogg 693 Haywood 693 Jeans 693 Bullock 693 Owens 693 Haughton 693 Bowver 696 Smith 696 Wallace 696 Philp 697 Newill 697 Gilson 697 Hill 703 Jepson 703 Williams 704 Whiteman 704 _ Page R V. Thomas 704 R V. Pembliton 705 R V. Essex 707 R V. Munsett 707 R V. Thomas 713; R V. Dunn 713: R V. Tate 730 R V. Holden 730 R V. Lewis 730 R V. Willmott 720 R V. Bampton 733 R V. Yarrington 733 R V. Higgins 733 R V. Harris 733 R V. Ganard 737 R V. Harvey 737 R V. Tyson 73T R V. Smith 737 R V. Naylorf 73T R V. Western 737 R V. Alsop ■ 737 R V. Hodgkins 737 R V. Bawn 737 Rv. Chugg 737 Buttle 737 Timins 737 Dunning " 737 London 737 Fletcher 737 Crawley 737 Willis 737 R V. Hook 73T R V. Nott 751 R V. Dixon 763 R V. Farrington 763 R V. Cohen 764 Sleep 764 Sunley 764 Skuse V. Davis 296. Stephen v. Meyer 300' Tatlock V. Harris 46 Taylor v. Newman 424 The Common Wealth v. Yer- ker 584 Walsby v. Harvey 290 Wilkinson v. Dutton 297 Walker v. Corporation of London 630 White V. Feast 707 V. V. V. V. V. V. R R R R R Rv. R V. V Rv Rv THE CRIMINAL LAW lojwolidBfion and |«^ttjline«f |da o( 1869, FOB TBB DOMINION OF CANADA. AN ACT RESPECTING OFFENCES RELAT- ING TO THE COIN. 32-33 VICT. CHAP. 18. IMPERIAL ACT, 24-25 VrCT. CHAP. 99. TI/-HEREAS it is expedient to assimilate, amend and ; n T '^^^^ *^^ «*^*"*« law of the several provinces of Quebec, Ontario, Nova Scotia and New Brunswick, respectmg offences relating to the coin, and to extend the same, as so consolidated, to all Canada : Therefore Her Majesty by and with the advice and consent of the Senate and House of Commons of Canada, enacts as fol- .fl^^W .? ^^^ interpretation of and for the purpose of this Act, the expression « current gold or silver cTin " i, }.,9 ^4 u THE CRIMINAL STATUTE LAW. shall include any gold or silver coined in any of Her Majesty's mints, or gold or silver coin of any foreign prince, or state or country or other coin lawfully current, by virtue of any proclamation or otherwise, in Canada, or any other part of Her Majesty's dominions, and the expression " current copper coin " shall include any cop- per coin, and any coin of bronze or mixed metal coined in any of Her Majesty's mints, or lawfully current, by virtue of any proclamation or otherwise, in Canada, or any other part of Her Majesty's dominions ; and the ex- pression " false or counterfeit coin resembling or appa- rently intended to resemble or pass for current gold or silver coin " or other similar expression, shall include any of the current coin, which has been gilt, silvered, washed, coloured or cased over, or in any manner altered, So as to resemble or be apparently intended to resemble or pass for any of the current coin of a higher denomination ; and the expression " current coin " shall include any coin coined in any of Her Majesty's mints, or lav/fully current, by virtue of any proclamation or otherwise, in Canada, or any other part of Her Majesty's dominions, and whe- ther made of gold, silver, copper, bronze or mixed metal;— and where the having any matter in the custody or possession of any person is mentioned in this Act, it shall include not only the having of it by himself in his personal custody or possession, but also the knowingly and wilfully having it in the actual custody or possession of any other person, and also the knowingly and wilfully having it, in any dwelling house or other building, lodging, apartment, field or other place, open or inclosed, whether belonging to or occupied by himself or not, and whether such matter is so had for his own use or benefit, or for that of any other person. Sect. 1, Imperial Act. OrFESCES BELATffla TO THB COIH. 3 gold and jlver com" coined in any of Her Maiestvl mmt^ oi^^wfnlly cnrrent in any part of Her Mlstrt dominions in or ont of the United Kingdom The cll. d.a. Actinclude. g„,d or silver coin of fnyT^reJ princ" state or ^untry current in Canada, or in any oTher part of Her Majest./s dominions. But the olluse L'^t though he words " of any foreign prince, state "; country" are not inserted. The part of tLe clause decknng what shall be the having in possessL Z: toned m the Act, is to cover questions which came up in Rob, 319 and Reg. vs. Williams,! U & M. a59.-Greaves Consol. Acts, 318. "-eives, COUOTEKFEITING CUKRENT GOLD OB SILVER COIH. Sect. 8._Whosoever falsely makes or counterfeits any cmn resembhng or apparently intended to resemble or pas, for any current gold or silver coin is guilty of felonv and shall be liable to be hnprisoned in the PeniLn Lry for hfe, or for any term not less than two years, or to be unpnsoned m any other gaol or place of confinement for any term less than two years, with or without hard la- 5 rl "'' '^"'''"' '""""^ confinement.- Sect. 2, inntf Kf*' .T""""™' ^y PO'™" " "onvicted of any indictable misdemeanor punishable under this Act the Court may. If it thinks fit in addition to or in lieu f'an; of the punishments by this Act authorized, fine the offender and require him to enter into his own recogni. ances, and to find sureties, both or either, for keerf fte peace and being of good behaviour , ai^d in cas^ f a^y il / ft 4 THE CRIMINAL STATUTE LAW. felony punishable under this Act, the Court may, if it thinks fit, require the offender to enter into his own recog- nizances and to find sureties, both or either, 'for keep- ing the peace, in addition to any punishments by this Act authorized : Provided that no person shall be impri- soned under this section for not finding sureties, for any period exceeding one year. Sect. 38, Imp. Act. Indictment. The Jurors for Our Lady the Queen upon their oath present, that J. S., on the first day of June, in the year of ten pieces of false and counterfeit coin, each piece thereof resembling and apparently intended to resemble and pass for a piece of current gold coin, called a sovereign, falsely and feloniously did make and counterfeit, against the form Archbold, 744. It is rarely the case that the counterfeiting can be proved directly by positive evidence : it is usually made out by circumstantial evidence, such as finding the ne- cessary coining tools in the defendant's house, together with some pieces of the counterfeit money in a finish- ed, some in an unfinished state, or such other circumstances as may fairly warrant the jury in presuming that the defen- dant either counterfeited or caused to be counterfeited, or was present aiding and abetting in counterfeiting the coin in question. Before the modern statutes which reduced the offence of coining from treason to felony, if several conspired to counterfeit the Queen's coin, and one of them actually did so in pursuance of the conspiracy, it was treason in all, and they might all have been indict- ed for counterfeiting the Queen's coin generally, 1 Hale, 214 ; but now, only the party who actually counterfeits would be the principal felon, and the others, accessories before the fact, although triable as principals.-— 31 Vict ch. 72. OFFENCES MtLATINa TO THE COIK. fi A yariance between the indictment and the evidence in the number of the pieces of coin aUeged to be coun- terfeited, 18 immaterial ; but a variance as to the dcno- Zh^" "f .T*" T'"' "' «"'"'^'' '<"""•««"»' 'hillings, would be fatal, unless amended. By the old law the counterfeit coin produced in evidence must have appear- fb„Hf ™ u K iTr "^ resemblance to the real coin that It would be likely to be received as the coin for which 1 was intended to pass by persons using the eau- faon customary m (»ki„g money. In R. vs. Varley, 1 East. L;/ f ' ^l ""**"' '""' ™™terf«ted the resem- blance of ahalf-gmnea upon a piece of gold previously hammered but t was not round, nor wouU it pass in the he offence was incomplete. So, in R. vs. Morris, 1 LeacJ. 166 where the defendants were taken in the very act of coming shillmgs, but the shillings coined by theL were t^k n m an imperfect state, it being requisL that they should undergo another process, namely inmersion in d luted „j« /^&, before they could pL as shiuLs by sect. 32 of the Coin Act of 1869, the offence of coun- terfeiting shall be deemed complete although the co"n made or counterfeited shall not be in a fit stfte to be T or pe'Xeted. ""'''"'""''" ""'""' """" ""' ""^ ''^^^^ terleit, and it ,s not necessary for this purpose to produce nymoneyer or other officer from the minrSect. 30, J" ounterfr: " """""" """"'- *"« -"> whi^h th" Z'e t wt T**^.*" ^"^""^ '^^ P^elamation to prove Its legitimation : it is a mere question of fact to be a J't i; 6 IHE CRIMINAL STATUTE LAW. left to the jury upon evidence of usage, reputation, &c. — Hale, 196, 212, 213. It is not necessary to prove that the counterfeit coin was uttered or attempted to be utter- ed. 1 East, P. C. 165 } Archbold, 744; Reg. vs. Robinson, 10 Cox, 107; Reg. vs. ConneU, 1 C. and K. 190 ; Reg. vs. Byrne, 6 Cox, 475. By sect. 49, 32-33 Vic .., ch. 29, if, upon the trial for any felony, it appears that the defendant did not com- plete the offence charged, but was only guilty of an attempt to commit the same, a verdict may be given of guilty of the attempt. As to solitary confinement, see sect. 94, 32-33 Vict ch. 29. •; COLOURING, &C., COIN. Sect. 3. Whosoever gilds or silvers, or with any wash or materials capable of producing the colour or appear- ance of gold or of silver, or by any means whatsoever washes, cases over, or colours any coin whatsoever resembling or apparently intended to resemble or pass for any current gold or silver coin, or gilds or silvers or with any wash or materials capable of producing the colour or appearance of gold or of silver, or by any means whatsoever, washes, cases over or colours 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 false and counterfeit coin resembling or apparently intended to resemble or pass for any current gold or silver coin, or gilds or with any wash or materials capable of producing the colour and appearance of gold, or by any means whatsoever, washes, ill 0FFBMCE8 RELATING TO THE COIN. ^ cases over or colours any current silver coin, or files or in any manner alters such coin, with mtent to mase the same resemble or pass for any current gold coin or gilds or silvers, or with any wash or materials capable of producing the colour or appearance of gold or silver or by any means whatsoever, washes, cases over or colours any current copper coin, or files, or in any manner alters, such coin with intent to make th^ame resemble or pass for any current gold or silver coin, is guilty of felony, and shall be liable to be imprisoned in the penitentiary for life or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement— Sect. 3, Imp. Act. Indictment for colouring coin falsely, deceitfully and feloniously did gild a certain false und counterfeit coin resembling a certain piece of current gold coin, called a sovereign, against the form Archbold, 746. Prove the gilding, &c. or colouring as stated in the indict^ ment. Where the defendant was apprehended in the act of making counterfeit shillings, by steeping round blanks, composed of brass and silver in aquafortis, none of which were finished, but exhibited the appearance of lead, though by rubbing they readily acquired the appear- ance of silver, and would pass current, it was doubted whether this was within the late Act, but the judges held the conviction to be right.-R. vs. Case, 1 Leach,°145. In another (?aae a doubt was expressed whether an immersion of a mixture, composed of silver and base metal, into aqua fortts, which draws the silver to the surface, was a colour- mg within the repealed statutes, and whether they were not mtendedto apply only to a colouring produced by a !i| 8 THE CRIMINAL STATUTE LAW, superficial application. R. vs. Lavey, 1 Leach, 153. But the words " capable of producing '' seem to have been introduced into the recent Statute for the purpose of obviating the doubt. Moreover, the present Statute adds the general words " or by any means whatsoever." Where a wash or material is alleged to have been used by the defendant, it must be shown either from the application by the defendant, or from an examination of their proper- ties, that they are capable of producing the colour of gold or silver. But an indictment charging the use of such ma- terial will be supported by proof of a colouring with gold itself. R. vs. Turner, 2 Mood. 41. Archbold, 74G. Where direct evidence of the act of colouring cannot bo obtain- ed, circumstances may be shown from which the act may be presumed, as that the prisoner was in possession of false coin, and that blanks coloured and materials for colouring were found in his house.— 1 Burn's Justice, 806. Indictment for colouring metal, (S;c falsely deceitfully and feloniously did gild ten pieces of silver, each piece thereof being respectively of a fit size and figure to be coined, and with intent that each of the said pieces of silver respectively should be coined into false and counterfeit coin resembling a piece of current gold coin, called a sovereign, against the form Archbold, 747. An indictment charging the gilding of sixpences " vnth materials capable of producing the colour of gold " is good, and is supported by proof of colouring six- pences with gold — R. vs. Turner, 2 Mood., 41. IMPAIRING, &C., GOLD AND SILVER COIN. Sect. 4. — Whosoever impairs, diminishes, or lightens any current gold or silver coin, with intent that tile OFFENCES RELATING TO THH COIN. ,9 coin 80 impaired, diminished or lightened may pass for current gold or silver coin, i^ guilty of felony an«e of uttering counter pose, J. uttered the coin in question : held, that the pri- 16 THE CRIMINAL STATUTE LAW. Ir ■' ill soner was rightly convicted as a principal, there being no accessories in a misdemeanor. — Keg. vs. Greenwood, 2 Den. 453 ; 5 Cox, 521. If two jointly prepare counter-^ feit coin, and utter it in different shops apart from each other bjt in concert, intending to share the proceeds, the utterings of each are the joint utterings of both, and they may be convictrf' y»iatly.— Rdg. vs. Hurse, 2 M. and Rob. 360. R. vs. Else, R. & .; . 142; E-g. vs. Manners, 7 C. &P. 801 ; R. vs. Page, 9 C. & P. 756 ; 2 Mood, 219; R. vs. Jones, 2 Mood, 85, are not law. — Archbold, 754. Hus- band and wife were jointly indicted for uttering counter- feit coin : held, that the wife was entitled to an acquit- tal, as it appeared that she uttered the money in the pre- sence of her husband, — R. vs. Price, 8 C. & P. 19. A wife went from house to house uttering base coin : her hus- band accompanied her but remained outside : held, that the wife acted under her husband 's compulsion.— Conol- ley's case, 2 Lewin, 229. Sarah McGinnes was indicted for uttering counterfeit coin. It appeared that at the time of the commission of the offence, she was in company with a man who went by the same name, and who was convicted of the offence at the last assizes. When the prisoners were taken into custody the police constable addressed the female pi isoner as the male prisoner's wife. The male prisoner denied the fact, (of her being his wife) in the hearing and presence of the woman. Sarah Mc- Ginnes since her committal had been confined of a child : held, per Byles, J., that, under the circumstances, although the woman had not pleaded her coverture, and even although she had not asserted she was married to the male prisoner, when he stated she was not his wife, it was a question for the jury whether, taking the birth of the OFPENOES RELATING TO THE COIN. jd denceof the mamage, and the jury thought there wZ and acquitted her, as being under the influence of her Zl C?3l?" *"' ""* "<"°-«»8- '■ M-=Gin„es; U be gifen. This of course must be done by circumstan d^^^tr-the''' ""T"""" " ""P^vedLt heTi^l ed, either on the same day or at other times, whether be- fore or after the uttering ch^ged, base moCdther rf he same or of a different denomination, to tt^^l to a different person, or had other pieces of base monev about him when he uttered the Interfeit !„«; ^ question; this will be evidence from which XTurt ma„me a guiity .knowledge.- Archboid, ^/.^^ mictmentM having in possession counterfeit gold or ^hermn wMmtent, Ac., &c., &c unla^^ully fl^ ly and deceitfuUy liad in his custo,1v ,r.A ' , n;B^«= „f <•„! J custody and possession fmr pieces of false and counterfeit coin, resembling the cur rent ^ver com called with intent to uttef he ^i^ pieces of false and counterfeit coin, he the Jd J. S I ' weU taowmg the said pieces of false and counterfeit cl to be false and counterfeit ; against ArchboU 757.-See remarks und;; Ve;^;" g'aiii io" As to what constitutes the having in possession, see sect I'utZt" '""•"•• ^ '" «""S the offender fd unTr tv . ^™ '"'""'' '° '"y O"*' of misdemeanor under this act, see ante, sect. 34, under secc. 2. As to sohtary conhnement, 33-33 Vict., ch. 29, s 94 i'4 B 18 THE OWMINAL 8TATUTB LAW- • ) ■ 111? M If UTTEMNG, &C., A^TER A PREVIOUS CONVICTION SHALL , BE FELONY. Sect. 12. — Whosoever having been convicted, either before or after the passing of this Act, of any such mis- demeanor as in any of the last three preceding sections mentioned, or of any misdemeanor or felony against this or any former Act heretofore in force in Canada, or in any of the Provinces thereof, relating to the coin, after- v^^ards commits any of the misdemeanors in any of the said sections mentioned, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life, or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any tenn less than two years, with or without hard labour, and with or without solitary confinement.— Sect. 12, Imp. Act. In the English Statute, the mode of proceeding on a subsequent offence, after a previous conviction, under the Coin Act, is given by sect. 37 of this Act. In Cana- da, we have the same clause, applying to all trials, gene- rally, of a subsequent offence, alter a previous conviction, and for which a greater punishment may be inflicted on that account, viz. :. sect. 26, 32-33 Vict., ch. 29, (Pro- cedure Act, 1869.) It is exactly in the same terms as the •corresponding clause of the English Statute, on offences relating to the coin. The English Larceny Act, sect. 116, re-enacts it. See Greaves' observations on this last clause ; also Archbold, 364, 755. More observations on the question will be found in the Annotations on sect. 26 of the Procedure Act of 1869. Upon the trial of an indictment for the felony of having committed a misdemeanor, within either of sections 9, 10, or 11 of 24-25 Vict., ch. 99, relating to the unlaw- UTTEBING FOREIGN COIN, ETC. ]d ful poBsession and uttering of counterfeit coin after a previous conviction for .a misdemeanor within those sec- tions, the prisoner must be arraigned upon, and evi- dence respecting the subsequent offence must first be submitted to the jury, and the previous conviction must not be mquired mto until after the verdict on the charge of the subsequent offence. -Regina vs. Mari;in, 11 Cox 843 ; R. vs. Goodwin, 10 Cox, 534, overruled. In Reir' vs. Mari:in, Lush, J., admitted that he was in error, in the case mentioned at p. 757 of Arohbold, Cr. PI. UrrERING FOREIGN COIN, MEDALS, &C., WITH INTENT TO DEFRAUD. Sect. 13.-Whusoever, with intent to defraud, tenders utters, orput8off,a8or for any current gold or silver coin' any coin not being such current gold or silver coin, oi- any medal or piece of metal or mixed metals, resemblb^ m size figure and colour the current coin, as or for which the same is so tendered, uttered, or put off, such coin, medal or piece of metal or mixed metals so tendered uttered or put off, being of less value than the cuiTen com as or for which the same is so tendered, uttered o put off, IS guilty of a misdemeanor, and shall be liable to be impnsoned in any gaol or place of confinement, her than a penitentiary, for any term not exceeding one year, with or without hard labour, and with of without solitary confinement.-Sect. 13 Imp Act An mdictment for the offences against this section maybe readily framed from the preceding forms !lsee observations under sppI 9 fnr- fi«^ ^- . confinement. ' ™' """*''' "'"^ «''"'"y putting off, as and for a half sovereign, a medal of ihe i< 20 THE CRIMINAL STATUTB LAW. same size and colour, which had on the obverse side a head similar to that of the Queen, but surrounded by the inscription " Victoria, Queen of Great Britain," instead of "Victoria Dei Gratia" and a round guerling, and not square. And no evidence was given as to the ap- pearance of the reverse side, nor was the coin produced to the jury ; and it was held that there was sufficient evidence that the medal resembled, in figure, as well as size and colour, a half sovereign. — Reg. vs. Robinson^ L. & C, 604 : the medal was produced, but, in the course of his evidence, one of the witnesses accidentally dropped it, and it rolled on the floor ; strict search was made for it for more than half an hour, but it could not be found. COUNTERFEITING COPPER COIN. Sect. 14. — Whosoever falsely makes or counterfeits any coin resembling or apparently intended to resemble or pass for any current copper coin ; and whosoever without lawful authority or excuse (the proof of which shall lie on the party accused) knowingly makes or mends, or begins, or proceeds to make or mend, or buy or sell, or have in his custody or possession any instru- ment, tool or engine adapted and intended for the coun- terfeiting any current copper coin, or buys, sells, re- ceives, pays or puts off, or offers to buy, sell, receive, pay or put off any false or counterfeit coin, resembling or apparently intended to resemble or pass for any cur- rent copper coin, at or for a lower rate of value than the same imports, or was apparently intended to import, is guilty of felony, and shall be liable to be imprisoned ia the Penitentiary for any term not exceeding seven years; and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less thaa UTTEBINO BASE COPPER COIN, ETC. g|, two years with or without hard labour, and with or without solitary confinement.— Sect. 14, Imp. Act. UTTBRINO BASB COPPER COIN. Sect. 15.-Who8oever tenders, utters or puts off any alse or counterfeit coin, resembling or apparently in- tended to resemble or pass for any current copper coin knowmg the same to be false or counterfeit, or has in his custody or possession three or more pieces of false or counterfeit coin, resembling or apparently intended to resemble or pass for any current copper coin, knowing the same to be false or counterfeit, with an intent to utter or put off the same or any. of them, is guiltv of a misdemeanor, and shall be liable to be imprisoned in any gaol or place of confinement, other than a Penitentiary, for any term not exceeding one year, with or without hard labour "0." with or without solitary confinement. —Sect. 15, Imp. Act. The evidence on the prosecution relating to the copper com will m general be the same as on prosecutions relating to the counterfeiting of the gold or silver coin. See remarks as to proof o.f intent, &c., under the preceding sections, and sect. 1, Interpretation Clause, as to what IS having in custody or possession, under this Clause. DEFACING COIN, TENDER OF DEFACED COIN. Sect, 16.-Whosoever defaces any current gold, silver or copper coin, by stamping thereon any names or words, wheth h com is or is not thereby diminished oJ lightened, and afterwards tenders the same, is guilt^^ of a misdemeanor, and shall be liable to be imprisoned in » ^ THE CRIMINAL STATUTK LAW. ii any gaol or place of confinement other than the Peniten- tiary, for any term not exceeding one year, with or with- out hard labour.— Sect. 16, Imp. Act. Sec. 17 — No tender of payment in money made in any gold, silver or copper coin so defaced by stamping, as in the last preceding section mentioned, shall be allowed to be a legal tender ; and whosoever tenders, utters or puts off any coin so defaced shall on conviction before two justices of the peace be liable to forfnt and pay any sum not exceeding ten dollars, provided that it shall not be lawful for any person to proceed for any such last mentioned penalty without the consent of the Attorney General for the province in which such offence is alleged to have been committed. — Sect. 17, Imp. Act. Indkff'mt for defacing Coin. one piece of the current silver coin, called a half crown, unlawfully and wilfully did deface, by then stamping thereon certain names and words against the form Arch- bold 748. ^, Prove that the defendant defaced the coin in question, by stamping on it any names or words, or both. It is not necessary to prove that the coin was thereby diminished or lightened. There must be defacing and tendering, to bring the offence within section 16. Legal tender is within the attributions of the Parliament of Canada, and clause 17 is not, therefore, unconstitutional. British N. A. Act, sect. 91, par. ao. By sect. 35, of ch. 18, 32-33 Vict., every offence under this Act made punishable on summary conviction may be prosecuted as directed by ch. 31, 32 33 Vict. As to fining the offender, and requiring him to give sureties for the peace, see sect. 34, ante, under sect. 2. COUNTURPBITINO— UTTBRINO, ETC. ^3 COUNTERFEmNQ FOfiElON GOLD AND SILVER COIN, NOT CURRENT IN CANADA, Sect. 18.— Whosoever mukes or counterfeits uny kind of coin not being current gold or sUver coin, but re- sembling or apparently intended to resemble or pass for any gold or sUver coin of any foreign prince, state or country, is guilty of felony, and shall be liable to be impnsoned in the Penitentiary for any term not exceed- ing sevpn years, and not less than two years, or to be impnsoned in any other gaol or place of confinement, for any term less than two years, with or without hard labour, and with or without solitary confinement .-Sect. 18, Imp. Act. BRINGING SUCH COUNTERFEIT COIN IN CANADA. Sect. 19.— Whosoever, without lawful authority or excuse, the proof whereof shall lie on the party accused, bnngs or receives into Canada any such false or counter- feit com, resembling or apparently intended to resemble or pass for ny gold or silver coin of any foreign prince, state or country, not being current coin, knowing the same to be false or counterfeit, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary, for any term not exceeding seven years, and not less than two years, or to be imprisoned in any other gaol or place of confinement;, for any term less than two years, with or without hard labour, and with or without sohtary confinement.-Sect. 19, Imp. Act. UTTERING FOREIGN COUNTERFEIT COIN. Sect. 20— vVhosoever tenders, utters or puts off any such false or counterfeit coin, resembling or apparently 24 THE CRIMINAL STATUTE LAW. intended to resemble or pass for any gold or silver coin of any foreign prince, state or country, not being current coin, knowing the same to be false or counter- feit, is guilty of a misdemeanor, and shall be liable to be imprisoned in any gaol or place of confinement, other than a Penitentiary, for any term not exceeding six months, with or without hard labour-Sect. 20, Imp. Act. ' ^ SUBSEQUENT OFFENCES. Sect. 21.— Whosoever, having been so convicted as in the last preceding section mentioned, afterwards com- mits the like offence of tendering, uttering or putting oft any such false or counterfeit coin as aforesaid, knowing the same to be false or counterfeit, is guilty of a mis'^ demeanor, and shall be liable to be imprisoned in any gaol or place of confinement, other than a Penitentiary, for any term less than two years ; and whosoever, having been so convicted of a second offence, afterwards commits the hke offence of tendering, uttering or putting off" any such false or counterfeit coin as aforesaid, knowing the same to be false or counterfeit, is guilty of felony, and shaU be liable to be imprisoned in the Penitentiary, for any term not exceeding seven years, and not less than two years, or to be imprisoned in any other gaol or place of confinement, for any term less than two years, with or without hard labour, and with or without solitary confinement.— Sect. 21, Imp. Act. HAVING foreign GOLD OR SILVER COIN, FALSE OR COUNTERFEIT, IN POSSESSION, Sect. 22.— Whosoever without lawful authority or excuse (the proof whereof shall lie on the party accused) FOREIGN COIN, FALSE IN POSSESSION. ^ has in his possession or custody any fm-ged, false or counterfeited piece or coin, counterfeited to resemble any foreign gold or silver coin described in the four next preceding sections of this Act mentioned, knowing the same to be false or counterfeit, with intent to put off any such false or counterfeit coin, is guilty of a misdemeanor, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding three years, nor less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years with or without hard labour, and with or without solitary confinement. Sect. 23, Imp. Act, applies to the having in possession five pieces or more of foreign counterfeit coin, gold, silver or any other metal The Canadian corresponding enact- ment, It will be perceived, applies only to gold or silver com and to any number ot them ; the ^vor^. forged is not in the English clause. Sect 23 -Whosoever falsely makes, or counterfeits aiy kind of com, not being current coin but resembling or apparently intended to resemble or pass for any copper com, or any other coin made of any metal or mixed metals, of less value than the silver coin, of any foreign prince, state or country, is guilty of a mis- demeanor, and shall be liable, for the first offence, to be imprisoned in any gaol or place of confinement other than the Penitentiary, for any term not exceedin^J one year ; and for the second offence, to be imprisoned in the Penitentiary for any term not exceeding seven years and not less than two years, or to be imprisoned n any other gaol or place of confinement for any term iess than two years, with or without hard labour, and with or without solitary confinement. I 26 THE CRIMINAL STATUTE LAW. Sect. 22, Imp. Act, is the corresponding clause. So that sect.22 oi the Canadian Act is sect. 23 of the English Act, and vice versa : in consequence, having in possession counterfeit foreign coin other than gold or silver, which in England, is an offence, is not provided for by our said Statute. (See 31 Vict., ch. 47:) the enactment upon subsequent offences contained in sect. 23 of the Canadian Statute, is not to be found in sect. 22 of the English Statute. The remarks under the first part of the Act are all applicable here, the enactments in those sections being the same, and repeated, to apply to foreign coin not current here. MAKING, &C., COINING TOOLS. Sect, 24.— Whosoever, without lawful authority or excuae, the proof whereof shall lie on the party accused, knowingly makes or mends, or begins or proceeds to make or mend, or buy or sell, or have in his custody or posses- sion any puncheon, counter puncheon, matrix, stamp, die, pattern, or mould, in or upon which there shall be made or impressed, or which will make or impress, or which shall be intended and adapted 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 ; or makes, or mends, or begins or proceeds to make or mend, .)i' buys or sells or has in his custody or possession 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 any such MAKING, ETC., COINING TOOLS. m coin as in this section aforesaid, knowing the same to be 80 intended and adapted as aforesaid,— or makes or mends, or begins or proceeds to make or mend, or buys orseUs, or has in his custody or possession any press for coinage or any cutting engine for cutting by force of a screw 0. of .any otiier contrivance, round blanks out of gold, silver, or other metal or mixture of metals, or any other machine, knowing such press to be a press for coin- age, or knowing such engine or machine 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 as in this section aforesaid, is guilty of felony, and shall be liablo to be imprisoned in the Penitentiary for life or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour and with or without solitary confinement.- Sect 24 Imp. Act. ' ^ Indictment for making apunchem for coining. — ■•••• °"® puncheon, in and upon which there was then made and impressed the figure of one of the sides, that is to say, the head side of a piece of the current silver coin, commonly called a shilling, knowingly, false- ly, deceitfully and feloniously and without lawful autho- rity or excuse, did make ; against the form. Arch bold 759. Prove that iho defendant made a puncheon, as stated in he indictment ; and prove that the instrument in oues- tion IS a puncheon included in the Statute. The words in the Statute "upon which there shall be made or impressed" apply to the puncheon which being convex bears upon it the figure of the coin,- and the word which will make or impress '' ^p^\y to the counterpun 5!! 28 THE CRIMINAL STATUTE LAW. cheon, which being concave will make and impress. However, although it is more accurate to describe the instruments accordii,^ to their actual use, they may be described either way.— R. vs. Lennard, 1 Leach, 85. It is not necessary that the instrument should be capable of making an impression of the whole of one side of the coin, for the words " or any part or parts" aic intro- duced into this Statute, and consequently the difficulty in R. vs. Sutton, 2 Str. 1074, where the instrument was capable of making the sceptre only cannot now occur. And on an indictment for making a mould " intended to make and impress the figure and apparent resemblance of the obverse side" of a shilling, it is sufficient to prove that the prisoner made the mould and a part of the im- pression, though he bad not completed the entire impres- sion.— R. vs. Foster, 7 C. and P. 495. It is not necessary to prove under this branch of the Statute the intent of the defendant: the mere simUitude is treated by the Legislature as evidence of the intent; neither is it essential to show that money was actually made with the instrument in question.— R. vs. Ridgely, 1 East P. C. 171. The proof of lawful authority or excuse, if any, lies on the defendant. Where the defendant employed a die- sinker to make, for a pretended innocent purpose, a die calculated to make shiUings : and the die-sinker, suspect- ing fraud, informed the authorities at the mint, and under their directions made the die for the purpose of detecting prisoner; it was held that the die-sinker was an innocent agent and the defendant was rightly convicted as a prin- cipal.— R. vs. Bannon, 2 Mood. 309. The making and procuring dies and other materials, with intent to use them in coining Peruvian half-dollars in England, not in order to utter them here, but by way of MAKING, ETC., COINING TOOLS. Oft trying whether the apparatus would answer, before sending It out to Peru, to be there used in making the counter feit com for circulation in that country, was held to be an mdictable misdemeanor at common law.— .R vs Roberts Dear8l.539j Archbold, 760; 1 Burn, 814 j 1 Russell' 100. A galvanic battery is a machine within this section' —Reg. vs. Grover, 9 Cox, 282. Indktntent for having a puncheon in possession.-^ :: : one puncheon in and upon which there "was then made and impressed the figure of one of thesides that 18 to say the head side of a piece of the current silver coin commonly caUed a shilling, knowingly, falsely,' deceitfully and feloniously, and without lawful authority or excuse, had in his custody and possession, against thp form Archbold 760. An indictment which charged that the defendant felo- mously had m his possession a mould " upon which said mould was made and impressed the figure and apparent resemblance" of the obverse side of a sixpence, was held bad on demurrer, as not sufficiently showing that the impression was on the mould at the time when he had it in his possession.— R. vs. Richmond, 1 C. & K. 240. As to evidence of possession, see sect. 1, Interpretation. Clause, ante.-^R. vs. Rogers, 2 Mood., 758..-The prisoner had occupied a house for about a month before the police entered it, and found two men and two women there one of whom was the wife of the prisoner. The men attacked the pohce, and the women threw something into the fire. The police succeeded, however, in pre- serving part of what the women threw away, which proved to be fragments of a plaster-of-Paris mould of a half crown. The prisoner came in shortly afterwards. 30 THE OaiMlNAL STATUTE LAW. li ■ i i i 1, ! and, on searching the house, a quantity of plaster-of- Paris was found up-stairs. An iron ladle and some fragments of plaster-of-Paris moulds were also found. It was proved that the prisoner, thirteen days before the day in ijuestion, had passed a bad half-crown, but there was no evidence that it had been made in the mould found by the police. He was afterwards tried and convicted for uttering the base half-crown. It was held that there was sufficient evidence to justify the conviction, and that, on a trial for felony, other substantive felonies which have a tendency to establish the scienter of the de- fendant may be proved for that purpose. Reg. vs. Weeks, L. & C, 18. In Reg. vs. Harvey, 11 Cox., 662, it was held : 1. That an indictment under this section is sufficient if it charges possession without lawful excuse, as excuse would include authority; 2. That the woids " the proof whereof shall lie on the accused " only shift the burden of proof, and do not alter the character of the offence; 3. That the fact that the Mint authorities, upon information forwarded to them, gave authority to the die maker to make the die, and that the police gave permission to him to give the die to the prisoner, who ordered him to make it, did not constitute lawful authority or excuse for prison- er's possession of the die ; 4. That, to complete the offence, a felonious intent is not necessary ; and, upon a case reserved) the conviction was affirmed. Indictment for making a collar. — one col- lar adapted and intended for the marking of coin round the edges with grainings apparently re nbling those on the edges of a piece of the current gold coin called a sovereign, falsely, deceitfully and feloniously, and with- out lawful authority or excuse, did make,— he the said OONVEYINO COINING TOOLS, BTO. 31 J. S. then weU knowing the same to be so adapted and intended as aforesaid, against the form aZ bold, 761 ^'^'^- It must be proved, upon this indictment that the de- fendant knew the instrument to be adapted and intended for the making of coin round the edges It must be remarked that the present Statute expressly As to sureties for keeping the peace, and solitary con- finement, see the preceding sections. CONVEYINO COINING TOOLS OR COIN OUT OF THE MINT WTO CANADA. Sect 25.-Whosoever, without lawful aathority or excuse, the proof whereof shall lie on the party a cLd knowjugly conveys out of any of Her Majesty's mS mto Cnada, any puncheon, counter-puncheon, matrix or about the com,ng of coin, or any useful part of any of the several matters aforesaid, or any cofn bl„7 retbL^hl"" "' ™'f ' ^"^ "^ felonTandl"^ be hable to be imprisoned in the Penitentiary for life or 1 tin t ^"^ "' ^^"^ "^ confinement for an, tenn Witt, or without sohtaiy confinement.-Sect. 25, imp. The words Mo Canada make the offence very and one not often likely to be brought before our courts. 38 THE CRIMINAL STATUTE LAW. COIN SUSPECTED MAY BE CUT. Sect. 26. — Where any coin is tendered as current gold or silver coin to any person who suspects the same to be diminished otherwise than by reasonable wearing, or to be counterfeit, it shall be la\/ful for such person to cut, break, bend or deface such coin, and if any coin so cut broken, bent or defaced, appears to be diminished other- wise than by reasonable wearing, or to be counterfeit, the person tendering the same shall bear the loss thereof ; but if the same is of due weight and appears to be lawful coin, the person cutting, breaking, bending or defacing the same shall be bound to receive the same at the rate it was coined for, and if any dispute arises whether the coin so cut, broken, bent or defaced is diminished in manner aforesaid, or counterfeit, it shall be heard and finally determined in a summary manner by any Justice of the Peace, who is hereby empowered to examine upon oath, as well the parties as any other person, in order to the decision of such dispute, and if he enter- tains any doubt in that behalf, he maysmnmoti three persons the decision of a majority of tvhom shall be final ; and the receivers of every branch of Her Majesty's revenue in Canada are hereby required to cut, break or deface, or cause to be cut, broken or defaced, every piece of coun- terfeit or unlawfully diminished gold or silver coin which shall be tendered to them in payment of any part of Her Majesty's revenue in Canada.— Sect. 26, Imp. Act. The words in italics are not to be found in the English Act. The clause, taken altogether, is the most crude, ill-digested, impracticable piece of legislation to be found in our Statute book. The words introduced in it by our Parliament, are no improvement on the English clause. It has moreover, with us, also, a tinge of unconstitution- ality. SEIZURE, ETC. •EIZUEE AND DISPOSAL OF CCUJITESmT COIH AMD COINIHO TOOLS. Sect. 27._If any person finds or discovers in any place whatever, or in the custody or possession of anv person having the same without lawful authoritv or excuse, any false or counterfeit coin resembling or an parently intended to resemble, or pass for any current gold, Sliver or copper coin, or any coin of any foreign pnnce, state or country, or any instrument, tool or engine whatsoever, adapted and intended for the counterfejLg of any such com, or any filings or clippings, or any gold or SI ver bullion, or any gold or silver' in dust, soMon or otherwise, which has been produced or ob^ined by diminishing or lightening any current gold or silver coin the person so finding or discovering may, and he is herel by required to seize the same and to carry the sle forthwith before some Justice of the Peace /andnc^ It IS proved on the oath of a credible witne^, before Z -usticeof the Peace, that there is reasonable cause to suspect that any person has been concerned in counter! eitmg current gold, silver or copper coin, or arrch foreign or other coin as is in this Act before mentioned or has in his custody orpossession any such false or coulr fot coin, or any instrument, tool or engine whatsoever at'sthf • ""'"'^ '"' '"^ """""« o-ounter^i ^™ f K for"'™; ""' ""'" "'""""'^ "^^ "' -'»Oed to oe used fo. making or counterfeiting any such coin Z any such fiUngs, clippings or buUionf or V„y Ir^old arcnea, either in the day or in the night, and if any 34 THE OHIMINAL STATUTE LAW. § Buch false or counterfeit coin, or any such instrument^ tool or engine, or any such machine, or any such filings, clippings or bullion, or any such gold or silver, in dust, solution or otherwise as aforesaid, is found in any place so searched, to cause the same to be seized and carried forthwith before some Justice of the Pence ; and when- ever any such false or counterfeit coin, or any such in- strument, tool or engine, or any such machine or any such filings, clippings or bullion, or any such gold or silver, in dust, solution or otherwise as afore- said, is in any case whatsoever seized and carried be- fore a Justice of the Peace, he shall, if necessary, cause the same to be secured, for the purpose of being produced in evidence against any person who may be prosecuted for an offence against this Act, and all such false and coun- terfeit coin, and all instruments, tools and engines, adapt- ed and intended for the making or counterfeiting of coin,, and all such machines, and all Si/'.h filings, clippings and bullion and all such gold and silver in dust, solution, or otherwise as aforesaid, after they have been produced in evidence, or when they have been seized and are not re- quired to be produced in evidence, shall forthwith by the order of the Court be defaced or otherwise disposed of as the Court may direct. — Sect. 27, Imp. Act. The words in Italics are in lieu of " the officers of Her Majesty's mint, &c,. i&c, Ac," in the English Act. Disposal of such coin pro.oi^oed in Court. Sect. 28. — ir any false or counterfieit coin be produced in any Court of law, the Court shall order the same to be cut in pieces in open Court, or in the presence of a Jus- tice of the Peace, and then delivered to or for the lawful' owner thereof, if such owner claims the same. This clause is not to be found in the English Act. VENUE— OOUNTERFIT COIN, ETC. 35 VENUE. Sect. 29.-Where any person tenders, uttsrs or puts of any false or counterfeit coin in any one province of' Canada or ,„.,y one district, county or jurisdiction therein and also tenders, utters or pu^ off any other false or counterfeit coin, in any other province d-stnct county or jurisdiction, either ou the day ot such first mentioned tendering, uttering or put mg off, or within the space „f ten days ncxtensmng orv-heretwo or more persons, acting L concert m different provinces, or in differeni distS counties or junsd.ctions therein, commit any offence against this Act, every such offender may be dealt Jth indicte tried and punished, and the offence Taidtnd charge, to have been committed, in any one of the said provmces, or districts, counties or jurisdictions, in Z same manner m all respects, as if the offence had been actually and wholly committed within one province district, county or jurisdiction.-Sect. 28, Imp Act Greaves says on this clause : " The first part is intro duced to remove a doubt which had arisen, whether a person tendering Ac, Ac, coin in one jori dictir a„d afterwards tendermg, Ac, A, coin in another jurisdiction within ^ct 10, could be tried in either. A the o^nce created by ehat section is only „ misdemeanor, pr^bab „ there was no substantial ground for that doubt but i^ was thought better to set the matter at rest " Now ^ct.l« of the English Act is not reprodZd in t^e Canadian Act: Sect. 29 was, then, not necessaiy. WHAT SHALL BE SUFFICIENT PROOF OP COIN BEING COUNTEKFEIT. Sect. 30. — Where, nnnn +ha +«a' «' -.^- with on,, „«• '■ "' ^ • =.ai Oi any person ciiarged with any offence against this Act, it becomes neces^ry i 'i I 4 I': 36 THE CRIMINAL STATUTE LAW. to prove that ahy coin produced in evidence against such person is false or counterfeit, it shall not be necessary to prove the same to be false and counterfeit, by the evidence of any nioneyer or other officer of Her Majesty's mint, or other person employed^ in produoing the lawful coin in Her Majesty's dominions, or elsewhere, whether the coin counterfeited bo current coin, or the coin of any foreign prince, state or country not current in Canada, but it shall be sufficient to prove the same to be false or counterfeit by the evidence of any other cre- dible witness.— Sect. 29, Imp. Act. The words in Italics are not in the English Act. The usual practice is to call as a witness, a silversmith of the town where the trial takes place, who examines the coin in Court, in the presence of the Jury— Davis's Cr. L., 236. PROOF IN CERTAIN CASES. Sect. 31.— Upon the trial of any person accused of any offence alleged to have been committed against the form of any Statute of Canada, or of any of the Provinces, passed or to be passed, respecting the currency or coin, or against the provisions of this Act, no difference in the date or year, or in any legend marked upon the lawful coin described in the indictment, and the date or year or legend 'marked upon the false coin counterfeited to resemble or pass for such lawful coin, or upon any die, plate, press, tool or instrument used, constructed, devised, adapted or designed, for the purpose of counterfeiting or imitating any such lawful coin, shall be considered a just or lawful cause or reason for acquitting any such person of such offence ; and it shall in any case be sufficient to prove such general resemblance to the lawful coin as will PROOF IN OBRTAIN CA818. it show an intention that tho counterfeit should pass for it. Not in the English Act. Sect. 32-Every offence of falsely making or counter- feiting any coin, or of buying, seUing, receiving, paying, tendering, uttering or putting off, or of offering to buy, seU, receive, pay, utter or put off any false or counterfeit coin, against the provisions of this Act, shall be deemed to be complete, although the coin so made or counterfeited, or bought, sold, received, -paid, tendered, uttered or put off, or offered to be bought, sold, received, paid, tendered, uttered or put off, was not in a fit state to be uttered, or the counterfeiting thereof was not finished or perfected.— Sect. 30, Imp. Act.— - The word in Italics is not in the English Act. Sect. 33.— It shall be lawful for any person whatsoever to apprehend any person who is found committing any mdictable offence against this Act, and to convey or de- liver him to some peace officer, constable or officer ot police, m order to his being conveyed, as soon as reason- ably may be, before a Justice of the Peace or some other proper officer, to be dealt with according to law - Sect. 31, Imp. Act. On this clause, Greaves remarks : " this clause is new, and clearly, unnecessary, as far as it relates to any felony or mdictable misdemeanor, for there is no doubt what- ever that any person in the act of committing any such offence is liable by the common law to be apprehended by any person, but it was introduced at the instigation of the solicitors of the Treasury, as it has been found that there was great unwillingness to apprehend in such cases, m consequence of doubts that prevailed among the public as to the right to do so.'' 38 THE CRIMINAL gTATUTE LAW. ifii-^^ Sect. 34. — Vide ante, under sect. 2. Sect. 35. — Enacts that every offence by this Act made punishable on summary conviction may be prosecuted in the manner directed by 32-33 Vict., ch. 31. Sect. 36. — Repeals Imperial Act, 16-17 Vict. ch. 48, as regards Canada, and the Act of Parliament therein cited and amended. The Imperial Act 16-17 Vict., ch. 48, extended the Coin Act, 2 Will. 4, ch. 34, to the colo- nies. The 2 Will. 4, ch. 34, had been repealed, only as to the United Kingdom by 24-25 Vict., ch. 95, sects. 1 and 2, Imperial Repeal Act ; it stands now repealed for Canada by the above clause. The Imperial Act, 16-17 Vict., ch. 102, repealed as to the United Kingdom by 24-25 Vict., ch. 95, appears to be in force as regards Canada. Judge Day, in Warner vs. Fyson, 2 Low. Can. Jurist, 106, ruled it to be law here, but its provisions are re-enacted in our Coin Act so that its non-repeal is of no consequence. A special Statute concerning the copper coin has been passed since Confederation. It is the 31 Vict., ch. 47, an Act respecting the manu- facture or importation of copper coins or tokens. The offences against it are all punishable on summary convic- tion. Sect. 37. — This Act shall commence and take effect on the first day of January, one thousand eight hundred and seventy. ii^ii FORGERY. GENERAL REMARKS. " To forge is metaphoricaUy taken from the smith who beateth upon his anvil, and forgeth what fashion and shape he will : the offence is called crimen falsL and the o^en^er falsarius, and the Latin word, to forge is falsare orfabricare."^Coke, 3rd. Inst. 169. ' " Forgery is the fraudulent making or alteration of a wntmg, to the prejudice of another's right. "-4. Blackst. 247. In Coogan's case (1. Leach, 448), BuUer, J., said "it IS the makmg of a false in rument with intent to de- ceive," and Eyre, B., in Taylor's case,defined it to be " a false signature made with intent to deceive." In the word " deceive " must doubtless be intended to be included anintent to " defraud, "[?]_and so it was defined by Grose, J., m delivering the opinion of the judges in the caseof Parkes and Brown, viz.: "the false making a note or other instrument with intent to defraud." Again Eyre, B., in the case of Jones and Palmer, defined it to be "the false making an instrument, which purports on the face of it to be good and valid for the purposes for which It was created, with a design to defraud any person or per8ons."-(l Leach, 367.) 2 East, P. C. 853- And East himself, 2 P. C. 852, says " forgery at common law denotes a false making, which includes every alter- ation of or addition to a true instrument, a making malo ammo, of any written instrument for the purpose of fraud and deceit." "Forgery is the false making of an instrument with intent to prejudice any public or private right." 3rd Rep ^ trim.. Law Comm., 10th June, 1847, p. 34. h 40 THE CRIMINAL STATUTE LAW. " Forgery is the fraudulent making of a false writing,, which, if genuine, would be apparently of some legal efficacy."— Bishop, 2. Cr. L. 623. " The characteristic of the crime of forgery is the false ' making of some written or other instrument for the pur- pose of obtaining credit by deception. The relation this offence bears to the general system may bfe thus briefly established. In most affairs of importance, the intentions, assurances, or directions, of men are notified and authenticated by means of written instruments. Upon the authenticity of such instruments the security of many civil rights, especially the right of property, frequently depends ; it is, therefore, of the highest impor- tance to sceiety to exclude the numerous frauds and in- juries whicli may bbviously be perpetrated by procuring a false and counterfeited written instrument, to be taken and acted on as genuine. In reference to frauds of thi» description , it is by no means essential that punishment should be confined to cases of actually accomplished fraud ; the /ery act of falsely making and constructing such an instrument with the intention to defraud is suf- ficient, acct rding to the acknowledged principles of cri- minal jurisprudence, to constitute a crime, — being in itself part of the endeavour to defraud, and the existence of the crimii'al intent is clearly manifested by an act done in furtherance and in part execution of that intention. The limits of the offence are immediately deducible from the general principle already adverted ..o. As regards the subject matter, the offence extends to every writing used for the purpose of authentication The crime is not confined to the falsification of mere writings ; it plainly extends to seals, stamps, and all other visible marks of distinction by which the truth FORQERT. 4l of any fact is authenticated, or the quality or genuine- ness of any article is warranted ; and, consequently where a party may be deceived and defrauded, from hav- ing been by false signs induced to give credit where none was due. With respect to the false making of any such mstrument, the offence extends to every mstance where the instrument is, under the circum- stances, so constructed as to induce a party to give credit to it as genuine and authentic in a point where it is false and deceptive. And in this respect, a forged instrument differs from one which is merely false and untrue in stat mg facts which are false. Where the instrument is forged, as where a certificate purporting to be signed by an authorized officer was not, in truth, signed by him a part> to whom it is shown is deceived in bein.r induc- ed to suppose that the fact certified is accredited" by the officer whose certificate it purports to be, and he is de- ceived m that respect, whether the fact certified be true or false. If, on the other hand, such a certificate be in truth signed by the officer whose name it bears, the ins- trument 18 not forged, although the fact certified be false- ly certified, for here the party receiving the certificate is deceived, not by being falsely induced to believe that the officer had accredited the instrument by his signature but from the officer having falsely certified the fact! The instrument may, therefore, be forged, although the fact authenticated be true. The instrument may be genuine, although the fact stated be false. Where mo- • ney or other property is obtained by an instrument of the latter description, that is, where it is false merely, as contaimng a false statement or representation, the offence belongs to the class of obtaining money or other property by false pretences."-5th Rep. Crim. L. Comm. 22nd of FORGERY. 4l of any fact is authenticated, or the quaJity or genuine- ness of any article is warranted ; and, consequently where a party may be deceived and defrauded, from hav- ing been by false signs induced to give credit where none was due. With respect to the false making of any such mstrument, the offence extends to every mstance where the instrument is, under the circum- stances, so constructed as to induce a party to give credit to it as genuine and authentic in a point where it is false and deceptive. And in this respect, a forged instrument differs from one which is merely false and untrue in stat mg facts which are false. Where the instrument is forged, as where a certificate purporting to be signed by an authorized officer was not, in truth, signed by him a part> to whom it is shown is deceived in bein.r induc- ed to suppose that the fact certified is accredited* by the officer whose certificate it purports to be, and he is de- ceived m that respect, whether the fact certified be true or false. If, on the other hand, such a certificate be in truth signed by the officer whose name it bears, the ins- trument 18 not forged, although the fact certified be false- ly certified, for here the party receiving the certificate is deceived, not by being falsely induced to believe that the officer had accredited the instrument by his signature but from the officer hnvintr fnio^i,, ^^.w.;c„j ^l n .* Hi tm 42 THE CRIMINAL STATUTE LAW. 1^ " Consistently with the principles which govern the offence of forgery, an instrument may be falsely made, although it be signed or executed by the party by whom it purports to be signed or executed. This happens where a party is fraudulently induced to execute a will, «, material alteration having been made, without his knowledge, in the writing ; for, in such a case, although the signature be genuine, the instrument is false, because it does not truly indicate the testator's intentions, and it is the forgery of him who so fraudulently caused such will to be signed, for he made It to be the false instru- ment which it really is." — Cr. L. Comm. Rep. loc. cit. This passage of the Criminal Law Commissioners seems tobe based on a very old case,cited in Noy's Eeport8,101, Combe's case ; but in a more recent case, R. vs. Collins, 2 M. and Rob. 461, it was held that, fraudulently to in- duce a person to execute an instrument, on a misrepre- sentation of its contents, is not a forgery ; and, in a case of R. vs. Chadwick, 2 M. and Rob. 545, that to procure the signature of a person to a document, the contents of which have been altered without his knowledge,] s not a forgery. The report (loc. cit.) of the criminal law Commission- ers continues as follows: " Upon similar grounds, an of- fender may be guilty of a false making of an instrument, although he sign or execute it in his own name, in case it be false in any material part, and calculated to induce another to give credit to it as genuine and authentic, where it is false and deceptive. This happens where one, having conveyed land, afterwards, for the purpose of fraud, executes an instrument, purporting to be a prior conveyance of the same land ; here again, the instru- ment is designed to obtain credit by deception, as pur- FORGERY. 43 porting to have been made at a time earlier than the true time of its execution."— 5th Report, loc. cit. This doctrine was approved of in a modern case, in England: Reg. vs. Ritson, 11 Cox, 352, and it was there held, upon a case reserved, that a man may be guilty of forgery by making a false deed in his own name. (See this case, under Sect. 23,posL) Kelly, C. B. delivering the judgment of the Court, said : " I certainly entertained some doubt at one time upon this case, because most of the authorities are of an an- cient date, and long before the passing of the Statutes of 11 Geo. 4& 1 Will. 4, and. 24-25 Vict. However, looking at the ancient authorities and the text-books of the highest repute, such as Com. Dig., Bacon's Abr., 3 Co. Inst., and Foster's C. L. 117, they are all uniformly to the effect, not that every instrument containing a false statement is a forgery, but that every instrument which is false in a material part, and which purports to be that which it is not, or to be executed by a person who is not the real person, or which purports to be dated on a day which is not the real day, whereby a false operation is given to it, is forgery." " Forgery, at common law, is an offence in falsely and fraudulently making and altering any matter of record, or any other authentic matter of a public nature, as a parish register or any deed or will, and punishable by fine and miprisonment. But the mischiefs of this kind mcreasing, it was found necessary to guard against them by more sanguinary laws. Hence we have several Acts of Parhament declaring what offences amount to forgery, and which inflict r-verer punishment than there were ai; the common law."— Bacon's Abridg. 3 Vol. 277. Cur- wood, note, 1 Hawkins, P. C. 263, is of opinion that ■■■■A m i! i!p:i •ihii- 44 THE CRIMINAL STATUTE LAW. if-'- this last definition is wholly inapplicable to the crime of forgery at common law, as, even at common law, it was fdrgery to make false ^^ private " writings. " The notion of forgery does not seem so much to' consist in the counterfeiting a man's hand and seal, which may often be done innocently, but in the endeavouring to give an appearance of truth to a mere deceit and falsi- ty, and either to impose that upon the world as the solemn act of another, which he is, no way privy to or at least to make a man's Own act appear to have been done at a time when it was not done, and by force of such a falsity to give it an operation, which in truth and justice it ought not to have."— 1 Hawk. P. C. 264. The definitions containing only the words " with in- tent to defraud " without the words " with intent to deceive" seem defective. In fact, there are many acts held to be forgery, where no intent to defraud, as this expression is commonly understood, exists in the mind of the person committing the act ; as, for instance, if the man, forging a note, means to take it up, and even has taken it up, so as not to defraud any one, this is clearly forgery, if he issued it, and got money or credit, or anything upon it : Reg. vs. Hill, 2 Mood 30 ; Reg. vs. Geach 9, C. and P. 499 ; or forging a bill payable to the pri- soner's own order, and uttering it without indorsement. Rex. vs. Birkett, Russ. and Ry. 86, or if one, while knowingly passing a forged bank note, agrees to receive it again should it prove not to be genuine, or if a credi- tor executes a forgery of the debtor's name, to get from the proceeds payment of a sum of money due him, Reg. vs. Wilson, 1 Den. 284, or if a party forges a deposition to be used in Court, stating merely what is true, to en- force a just claim : Bishop, 2 Ci. L. 598. All these FORGERY. 45 acts^are forgery j yet where is the intent to defraud m these cases? It may be said that the law infera it' But why make the law infer the existence of what does not exist? Why not say that " forgery is the / false making of an instrument with intent to defraud or dece^ve:^ The word " deceive " would cover aU the cases above cited : in each of these cases, the intent of the forger, is that the instrument forged should be used as good, should be taken and received as signed and made, by the person whose name is forced in ^onsequence, to deceive quoad hoc, and for this, though Wv h /? '"l"f. *t^'^''"^' *^'"^^ "^ ^"« '^^^ possi- bly be defrauded by his act, he is in law, .uilty of forVery. See 2 Russell, 774. deepest, under sect. 14 of the Forgery It is true that the Court of Crown cases reserved, in England, held m a modern case, Reg. vs. Hodgson 3, Dears. & B. 1S56, thar, upon an indicnnent for forger^ at common law, it is necessary to prove, not only an intent to defraud, but also an intent to . .fraud a particu- lar person, though w- . this case v .s decided, the. Statute, m England, . . 15 Vict., ch. luO, s. 8.) enacted that It was not necessary in indictmen for forc^ery to a lege an intent to defraud any particular person. "^ rThis clause as in England, has been inserted into our Conso- lidated otatute on Forgery, sect. 51, with the additional words "where it shall be necessary to a] ge an intent to defraud.--See,,.^ sect. 51.) In this, .iodgson's case, the pnsoner had forged and uttered a diplr.ma of the Col- ege of Surgeons : the jury found that the prisoner forged the document with the general intent .o induce the behef that it was genuine, and that he w. a member of the College, and that he show-sd it to c itain persons 46 THE CRIMINAL STATUTE LAW. M with intent to induce such belief in them ; but that he- had no mtent, in forging or uttering it, to commit any- particular fraud or specific wrong to any individual Though the offence charged in this case was under the common law, it must be remembered that S. 8, of 14- 15 Vict., ch. 100, applied to indictments under the com- mon law as well as to indictments under the Statutes, as now also do sect. 44 of the English Forgery Act and sect. 51 of the Canadian Forgery Act.— Greaves remarks on the decision in this case :— " As the clause of which this is a re-enactment (44 of the English Act, 51 of the Canadian Act) was considered in Keg. vs. Hodgson, and as that case appears to me to have been erroneously decided, it may be right to notice it here. The prisoner was indicted at common law for forging and uttering a diploma of the College of Surgeons, and the indictment was in the common form. The Col- lege of Surgeons has no power of conferring any degree or qualification, but before admitting persons to its mem- bership, it examines them as to their surgical knowledge, and, if satisfied therewith, admits them, and issues a document called a diploma, which states the member- ship. The prisoner had forged one of these diplomas. He procured one actually issued by the College of Sur- geons, erased the name of the person mentioned in it, and substituted his own. He hung it up in his sitting room, and, on being asked by two medical practitioners, whether he was qualified, he said he was, and produced this document to prove his assertion. When a candidate for an appointment as vaccinating officer, he stated he had his qualification, and would show it, if the clerk of the guardians, who were to appoint to the office, would FOROERT aJ! go to his gig; he did not, however, then produce or show The praoner was found guilty : the facts to be taken to be that he forged the document with the general mte.it to induce « belief that it was genuine, and that he ZZTT^r' *'"' ^*«^°' S-geons/and that h showed ,t to two persons with the particular intent to .ndace such belief in these two persons ; but th held no intent in forging or in altering, to commit any parti- cular fraud, or any specific wrong to any individual And upon a case reserved, it was held that the M & 15 Vict ' ch. 100, s 8, altered the form of pleading only, and d d not alter the character of the offe'nce chfrgedfand thlt he law as to that is the same as if the Stftu t'eld „« been passed, and that, in order to make out the offence of forgery at common law, there must have been at the time the instrumeut was forged, an intention to defraud some particular person. Now, this judgment is cleariv erroneous. The 14 & 15 Vict., ch. 100, s. 8, does n nent, for, it expressly enacts, that " mthe trialotanyot the oifences m this section mentioned (forging, utterW disposing of orputting oifany instrument "wh^Lever ft shJl not be necessary to prove that the defendant did the act charged with an intent to defraud." The judgment therefore, and the clause in the Act are directly U^t radic ion to each other, and, consequently, the former XorX' • ''''' "'""' **"•' ™^ intJ^duced alt sedly for the very purpos. of altering the law. See mv ZllT. ?rP"'"'' ^'"^' P^Se 13. It is a fallacy"o uppose th t there must have been an intent to defrlud any particular person at the time of forging the document In Tatlock vs. Harris, 3 T. E. no, that great lawver- THE CRIMINAL STATUTE LAWi it Shepherd, said in argument, " it is no answer to a charge of forgery to say that there was no special intent to de- frauf? i^ny par*imlar person, because a general intent to deft"«iid i& fiUilioient to constitute the crime ; " and this position was not denied by that great lawyer, Wood who argued on the other side, and was apparently adopt- ed by the Court. It is cited in 1 Leach, 206, note a ; 3 Chitty, Cr. L. 1036, and as far as we are aware, was never doubted le/bre this case. Indeed, in Reg. vs. Tylney, 1 Den. 319, it seems to have been assumed on all hands to be the law. There the prisoners forged a will, but there was no evidence to show that any one existed who could have been defrauded by it, and the judges were equally divided whether a count for forgery with intent to defraud some person unknown, could, under such circumstances, be supported. It is obvious that this assumed that, if there had been evidence that there was any one who might have been defrauded, though there was no evidence that the prisoners even knew of the existence of any such person, the offence would have been forgery. Indeed it would be very start- ling to suppose that a man who forged a will, intending to defraud the next of kin, whoever they might happen to be, was not guilty of forgery because he had only that general intent. The point is too obvious to have escaped that able criminal lawyer, Mr. Prendergast, and, as he did not take it, he clearly thought it wholly untenable, and so, also, must ^Ue judges who heard the case. See also the obser- vations of Cresswell, J., in Reg. vs. Marcus, 2 C. & K. 356. In Reg. vs. Nash, 2 Den. 493, Maule, J., expressed a very strong opinion that it was not necessary in order to prove an intent to defraud that there should be any FORdERY. U person who could be defraudfid an,! ^Ui • • 0-57, all the judges were of opinion that ,i h II f u drawn in fictitious names wL a ^d bu ' ^ /"'' one knows that, at the time whei sn)'^ ^^^' ^^^ry merly the particular person who wa, htendTd fol 7" to the exception that, wherever he Itin'h ' '""'t »ny person in an indictment is hi^h t „c®„' """"' "^ .mpracticahle, the name noe,l not be rtaW T"r" " "ot be stated. So, where thorP ' *'^^«ames need «- funds, it is not^Icerary to s'e T^'^^^^^--- persons who shall iffprur i V *^'^ "^"'^^ «f the P'ophecy divine who would 1^7 ^ * 'P'"' "' 50 Till! CHIMINAL STATUTE LAW. instrument, there is no intent to defraud any particular person. Indeed, it is now clearly settled that, where a conspiracy is to defraud indefinite indiriduals, it is un- necessary to name any individuals. — R. vs. Peck. 9 A. & E. 686 ; Reg. vs. King, 7. Q. B. 782. This may be taken to be a general rule of Criminal pleading, and it has long been applied to forgery. In 1771, in R. vs. Birch, 1 Leach 79, the prisoners were convicted of forging a will, and one count alleged the intent to be " to defraud the person or persons who would by law be entitled to themessuages" whereof the testator died seized. — Chitty, Cr. L. 1066. And it has been the regular course in in dictments for forging wills, at least ever since that case, to insert counts with intent to defraud the heir-at-law and the next of kin, generally.— Jcrv. Archb. 8th Edit. 370 ; a Chitty Cr. L. 1069. It is true that in general there have also been counts specifying the heir-at-law or the next of kin by name. But in Reg. vs. Tylney, there was no such count. No objection seems ever to have been taken to any such general count. So, also, in any forgery with intent to defraud the inhabitants of a county, hundred or parish, the inhabitants may be generally des- cribed. These instances clearly show that it is not ne- cessary in forgery any more than in other cases, to name individuals where there is either great inconve- nience or impractibility in doing so. A conviction for conspiracy to negotiate a bill of exchange, the drawers of which were a fictitious firm, and thereby fraudulently to obtain goods from the King^s suhjects, although it did not appear that any particular person to be defrauded was contemplated at the time of the conspiracy, has been held good, R. vs. Hevey, 2 East, P. C. 858, note a, and this case bears considerably on the present question. If FOROEBT. ai a peraon forged a b,ll of exchange with intent to defraud any one whom he might afterward, induce to ZhU and he uttered it to A. B., it cannot be doubted that ht would be gudty of uttering with intent to defraud AB and .t would ...deed be strange to hold that he wa,guiu; of uttenng but not of forging, the bill. No doubl thi o.Te„ce of orgery con^irt, in the intent to deceive o de! fraud , but a general intent to defraud is just ,« criminal as to defraud any particular individual. I„ omhj^ there ,s a wrongful act done with a criminTinLn7 wh,ch according to R. vs. Higgins, 2 East R. «, is tffl- cent to constitute an indictable offence. In the'courl^of the argument, Erie, J., said: « Woul.l it not have Teen enough to allege an intent to deceive divers persons t" master! This approaches very nearly to the correct view, v,z that it would have been enough before teu fnt ^tl^d" "' "• '' *" '"'™ """««'' ■""» Proved an mtent to deceive any persons who should afterwards be- sT" The ;• '^'*'''*"'""' '■' •'""'■« the argument said, The question is, whom did he intend to deceive when the forgery was committed »" And Jervis r I ».d: "The intent must not be a roving inteS but a specific intent." Now, if these remarks'' r confined to a count for forging, they are correct; thou"h „ Boland's case I Leach, 83, the prisoner 'was executed for forging an indorsement in the name of a non-exS person, with intent to defraud a person whom he do"! iioUven seem to have known when he forged the indors" But it cannot be doubted that a man may be guiltv of intending to defraud divers persons at diffLntCs by the same mstrumeiapas where he tries to utter a 52 THE CRIMINAL STATUTE LAW. forged note to several persons one after another, in which case he may be convicted of uttering with intent to de- fraud each of them. Thus much has been said, because it is very important that the law on the subjects discuss- ed in this note should noc be left in uncertaintv, and it is much to be regretted that Reg. vs. Hodgson was ever de- cided as it was, as it may encourage ignorant pretenders to fabricate diplomas, and thereby not only to defraud the poor of their money, but to injure their health." Greaves, Consol. Acts, 303. The case of Tatlock vs. Harris, hereinbefore cited by Greaves, is cited by almost all who have treated this question; 2 Russell, 774; 2 East., P. C, 854, &c. In Reg. vs. Nash, 2 Den. 493, Maule, J., said : " The Recorder seems to have thought, that, in order to prove an intent to defraud there should have been some person defrauded or who might possibly have been defrauded. But I do not think that at all necessary. A man may have an intent to defraud, and yet there may not be any person who could be defrauded by his act. Suppose a person with a good account at his bankers, and a friend, with his knowledge, forges his name to a cheque, either to try his credit, or to imitate his handwnting, there would be no intent to defraud, though there would be parties who might be defrauded. But where another person has no account at his bankers, but a man sup- poses that he has, and on that supposition forges his name, there would be an intent to defraud in that case, although no person could be defrauded." And in R. vs. Mazagora, R. & R. 291, it has been holden that the jury ought to infer an intent to defraud the person who would have to pay the instrument if it were genuine, although rom the manner of executing POBQERr. S3 the forgery, or from that person's ordinarv caution if would not be likely to i„.pL upou him, a'„d Xu'gh tho object was general to defraud whoever mi' *"^ p^^'^"' ''^'^' Sol : ect. 51, has the words " where it shall be necessary to allege an mtent to defraud " showingevidently that the e has been held, ma recent case, by Mr. Justice Qudn tent r f7"7' '' ''" '''• *>""' ■" ^' cases, anlr: tent to defraud must be alleged. This doctrine seems to have been smce repudiated by Martin, B., in Rer" Asphn, 12 Cox 391 ; see,«,,^, under secL 43 It should be observed that the offence of for.^erv mar be complete though there be no publication or „LZ of tne forged mstrument, for the very making witl"! fraudulent mtention, and without lawful authoritv of anv J o^iy, 18 01 Itself a sufficient comiiletion of $4 THE CRIMINAL STATUTE LAW. the offence before publication, and though, the publica- tion of the instrument be the medium by which the in- tent is usually made manifest, yet it may be proved as plainly by other evidence. 2 East, P. C. 855. Thus in a case where the note, which the prisoner was charged with having forged was never published, but was found in his possession at the time he was apprehended, the prisoner was found guilty, and no one even thought of raising the objection that the note had never been pu- blished. Rex. vs. Elliot, 1 Leach, 175. At the pre- sent time, most of the Statutes which relate to forgery make the publication of the forged instrument, with knowledge of the fact, a substantive felony.— 2 Russell, 709. Not only the fabrication and false making of the whole of a written instrument, but a fraudulent insertion, al- teration, or erasure, even of a letter, in amj material part of a true instrument, and even if it be afterwards executed by another person, he not knowing of the deceit, or the fraudulent application of a true signature to a false instrument, tor which it was not intended or vice versa, are as much forgeries, as if the whole instrument had been fabricated. As by altering the date of a bill of exchange after acceptance, whereby the payment was accelerated.— 2 East, P. C, 855 ; 2 Russell, 710 ; Crim. law Comm. reports, cited sujjra ; R. vs. Post. R. & R. 101 I Reg. vs. Hodgson, Dears, and B. 3. In addition to Wilks's case, 2 East, 957, cited siqyra by Greaves, as to the principle that the making of any instrument wliich is the subject of forgery, in the name of a non-existing and fictitious person, is forgery, the following are given in Archbold, ->02 : R. vs. Lewis, Foster, 11 G; R. vs. Bolland, 2 East, P. C. 958; R. FORGERY. 55 Ts. Lockett, 1 Leach. 9t; R. vs. Parkes, 2 Leach 773 • E. vs.Froud, R. & R. 389; R. vs. Sheppard, 1 Leach' 22Q ; R. vs. Wiley, 2 Leach, 983 ; R. vs. Francis, r' & R. 209 ; R. vs. Webb, R. & R. 405 ; R. vs Watts" R. &R.436; R. vs. Mitchell, 1 Den. 282 ; R. vs. Bon- tien, R. & R. 260; R. vs. Rogers, 8 C. «fe P. 629. Even where a man, upon obtaining discount of a bill indorsed it in a fictitious name, when he might have obtained the money as readily by indorsing it in his own name, it was holden to be a forgery. R. vs. Taft 1 Leach, 172 ; R. vs. Taylor, J Leach, 2U ;* R. 'vs. Mar- shall. R. & R. 75 ; R. vs. Wiley, R. & R. 90 ; R vs Francis, R. & R. 209. It is a forgery for a person having authority to fill up a blank acceptance or a cheque for a certain sum, to fill up the bill or cheque for a larger sum. R. vs. Hart 1 Mood. 486 ; and the circumstance of the prisoner, al- leging a claim on his master for the greater sum, as sa- lary then due, is immaterial, even if true ; Reg. vs. Wil- son, 1 Den. 284. In respect of the persons who miglit formerly be wit- nesses in cases of forgery, it was an established point that a party by whom the instrument purported to be made was not admitted to prove it forged, if in case of its bei-g genuine, he would have been liable to be sued upon it, 2 Russell, 817. But now, ^ee imt, sect 54 of the Forgery Act, and sect. 63 of the Procedure Act of 1869.— Also, sect. 67 of the Procedure Act of 1869. A forgery must be of soin^ocument or writing : there- fore the putting an artist's name in the corner of a picture in order falsely to pass it off as an original picture by that artist, IS not a forgery. R. vs. Close, Dears & B. 460 • though It may be a cheat at common law. ' m 56 THE CRIMINAL STATUTE LAW. The false signature by a marTc is forgery. R. vs. Dunn^. 1 Leach, 57. When the writing is invalid on its face, it cannot be the subject of forgery, because it has no legal tendency to effect a fraud..- It is not indictable, for example, to forge a will attested by a less number of witnesses than the law requires. R. V3. Wall, 2 East. 953 ; R. vs. Mof- fatt, 1 Leach, 954 j 2 Bishop, Cr. L. 588. But a man may be indicted for forging an instrument, which, if genuine, could not be made available by reason of some circumstance not appearing upon the face of the instrument, but to be made out by extrinsic evidence. R. vs. Mcintosh, 2 Leach, 833.— So, a man may be in- dicted for forging a deed, though not made in pursuance of the provisions of particular Statutes, requiring it to be in a particular foi-m, R. vs. Lyon, R. & R. 25^. And a man may be convicted of forging an unstamp- ed instrument, though such instrument can have no operation in law — R. vs. Hawkeswood, 1 Leach, 257 ; R. vs. Lee, 1 Leach, 258. This question, a few years afterwards, again underwent considerable discussion, and was decided the same way, though, in the meantime, the law, with regard to the procuring of bills and notes to be subsequently stamped, upon which in R. vs. Haw- keswood, the judges appear in some degree to have re- lied, had been repealed. The prisoner was indicted for knowingly uttering a forged promissory note. Being convicted the case was argued before the judges, and for the prisoner it was urged that the 31 Geo. 3., ch. 25, S. 19, which prohibits the stamps from being after- wards affixed, distinguished the case from R. vs. Haw- keswood. Though two or three of the judges doubted at first the propriety of the latter case if the matter FOROERY. 6V were res Integra, yet they all agreed that, being an au- -thority m point, they must be governed by it : and thev held that the Statute 31 Geo. 3. made no difference in the question. Most of them maintained the principle m R. vs. Hawkeswood to be well founded, for the Acts of Parhament refeired to were mere revenue laws, meant to make no alteration in the crime of forgery, but only to provide th It the instrument should not be available .orrecovermg upon it in a court of justice, though it might be evidence for a collateral purpose ; that it was not necessary, to constitute forgery, that the instrument should be available; that the stamp itself might be forged, and it would be a strange defence to admit, in a court of justice, that because the man had forged the stamp he ought to be excused for having forged the note Itself, which would be setting up one fraud in or- der to protect him from the punishment due to another. R. vs. Morton, 2 East, P. C- 955. The same principle was again recognized in R. vs. Roberts, and R. vs Da- vies 2 East, P. C. 955, and in R. vs. Teague, 2 Ea'st, P. C. 979^, where 1^ was holden that supposing the instru- ment iorged to be such on the face of it as would/be va- lid, provided it had a proper stamp, the offence w^s com- plete. Roscoe, 497, 6th Edit. As TO THE UTTERiNG.-These words, utter, uttering, occur frequently in the law of forgery, counterfeiting and the like ; meaning, substantially, to ofter. If one offers another a thing, as for instance a forged instru- ment or a piece of counterfeit coin, intending it shall be received as good, he utters it, whether the thing offered be ..e ;>(ed or not. It is said that the offer need not go so \M- a, a tender.-Reg. vs. Welch, 2 Den. 78 ; Re^ vs. Ion., 2 Den. 475 ; (See Greaves' remarks on this ,.k 58 THE CRIMINAL STATUTE LAW. case, 2 Russell, 838.) But, to constitute an uttering, there must be a complete attempt to do the particular act the law forbids, though there may be a complete conditional uttering, as well as any other, which will be crimind. The words " pay " or " put off" in a statute are not satisfied by a mere uttering or by a tender ; there must be an acceptance also.— Bishop, Stat. Crimes, 306. The Forgery Act now describes the offence of uttering by the words " offer, utter, dispose of or put off," which include attempts to make use of a forged instrument, as well us the cases where the defendant has actually suc- ceeded in making use of it. — Archbold, 568. Showing a man an instrument, the uttering of which would be criminal, though with an intent of raising a take idea in him of the party's substance, is not an utter- ing. Nor will the leaving it, afterwards, sealed up, with the person to whom it was shown, under cover, that he may take charge of it, as being too valuable to be carried about, be an uttering.— R. vs. Shukard, R. & R. 200. But the showing of a forged receipt, to a person with whom the defendant is claiming credit for it, was held to be an offering or uttering, though the defendant re- fused to part with the possession of it— R. vs. Radford, 1 Den. 59. In R. vs. Ion., 2 Den. 475, siqmi, cited by Bishop, the rule laid down by the Court is, that a using of the forged instrument in some way, in order to get money or credit upon it, or hy means of it, is sufficient to consti- tute the oftence described in the Statute.— Archbold, 569. Oiving a forged note to an innocent agent or an ac- >complice that he may pass it is a disposing of and put- FORGERY. 59i ting it away.— R. vs. Giles, 1 Mood. 16G. So, if a per- son knowingly deliver a forged hmk note to another, who knowingly utters it accordingly, the prisoner who delivered such note to be put off may be convicted of having disposed of and put away the same.-— R. vs. Pal- mer & Hudson, R. & R, 72; 2 Leach, 978. On the charge of uttering, the guilty knowledge is a material part of the evidence. Actus nonfacit reim, nisi mens sit rea. If there is no guilty knowledge, if the per- son who utters a forged instrument, really thinks it gen- uine, there is no mens rea with him : he commits no offence. Therefore, the prosecutor must prove this guilty knowledge by the defendant, to obtain a convic- tion.— 2 Russell, 836. This is not capable of direct proof. It is nearly in all cases proved by evidence of facts, from which the jury may presume it.— Archbold, 570. And by a laxity of the general rules of evidence, which has long prevailed in the English Courts, the proof of collateral facts is ad- mitted to prove the guilty knowledge of the defendant. Thus, on an indictment for knowingly uttering a forged instrument, or a counterfeit bank note, or counterfeit coin, proof of the possession, or of the prior or subsequent utterance, either to the prosecutor himself nr to other persons, of other false documents or notes, or bad money, though of a difercnt description, and though themselves the subjects of separate indictments, is aJmissible as mate- rial to the question oi guilty knowledge or intent. Taylor, Evid., I vol., par. 322.— R. vs. Foster, Pearce & d! 456 ; R. vs. Harris, 7 C. & P. 429 ; R. vs. Millard, R. & R. 245 ; R. vs. Sunderland, R. vs. Hodgson, R. vs. Kirk- wood and R.vs. Martin,! Lew. C. C. 1 02-1 04 ; R.vs. Hough, R. & R. 122 ; R. vs. Weeks, 8 Cox 455 ; R. vs. Aston, B 60 THE CRIMINAL STATUTE LAW. 2 Russell 841 ; R. vs. Lewis, 2 Russell 841 ; R. vs. Oddy, 2 Den. 264. But in these cases, it is essential to prove distinctly that the instruments offered in evi- dence of guilty knowledge were themselves forged.— Taylor, loc. cit. ; R. vs. Whiley and Baines, 2 Leach, 983; R. vs. Bull, R. & R. ]32 ; R. vs. Salt, 3 Fost. & Fin. 834 ; R. vs. Nisbett, 6 Cox 320 ; R. vs. Harrison, 2 Lew. C. C. lis ; R. vs. Green, 3 C. & K. 209 ; R. vs. Millard, R. & R. 245. It seems also, that though the prosecutor may prove the uttering of other forged notes by the prisoner, and his conduct at the time of uttering them, he cannot pro- ceed to show what the prisoner said or did at another time, with respect to sucii uttering ; for these are colla- teral facts, too remote for any reasonable presumption of guilt to be founded upon them, and such as the prisoner cannot by any possibility be prepared to contradict.— Taylor, loc. cit. ; R. vs. Philipp., 1 Lewin C. C. 105 ; R. vs. Cooke, 8 C. & P. 5SG. In Philipps' case, the judge said : " That the prosecutor could not give in evi- dence anything that was said by the prisoner at a time collateral to a former uttering in order to show that what he said at the time of such former uttering wa^ false, because the prisoner could not be prepared to answer or explain evidence of that description: that the prisoner is caUed upon to answer all the circumstances of a case under consideration, but not the circumstances of a case which is not under consideration : that the prosecutor is at liberty to show other cases of the pri- soner having uttered forged notes, and likewise his con- duct at the time of uttering them ; but that what he said or did at another time collateral to such other iitter'mgSy could not be given in evidence, as it was impossible that FOROERY. 61 the prisoner could be prepared to combat it."— See Res vs. Browne, 2 F. & F. 25!), and Paterson's, J., remarks therem on Reg. vs. Cooke, cited ante, and R. vs. Forbes, 7 C. & P. 224. The rule, in such cases, seems to be that you caimot bring collateral evidence of a collateral fact, or that you cannot bring evidence of the collateral circumstances of a collateral fact. The prosecutor must also prove that the uttering was accompanied by an intent to defraud. As to which, see remarks, ante, on the necessity of this intent in forgery generally. Baron Alderson told the jury, in Reg vs. Hill,' 2 Mood, '60, that, if they were satisfied that the prisoner uttered the bill as true, knowing at the time that it was forged, and meaning that the person to whom he offered It should believe it to be genuine, they were bound to mfer that he intended to defraud this person, and this ruhng was held right by all the judges. And in Reg. vs Todd, 1 Cox, 57, Coleridge, J., after consulting Cress- well, J., said : " If a person forge another person's name and utter any bill, note, or other instrument with such signature, knowing it not to be the signature of the per- son whose signature he represents it to be, but intending It to be taken to be such by the partv to whom it is given, the inference, as well in point of fact as of law, is strong enough to establish the intent to defraud, and the party so acting becomes responsible for the legal conse- quences of his act, whatever may have been his motives. Ihe natural, as well as the legal consequence, is that this money is obtained, for which the party obtaining it profess to give but cannot give a discharge to the party giving up the money on the faith of it. Supposing a person in temporary distress puts another's name to a bill, intending 05^, sect. 52. ' See R. vs. Collicott, R. & R. 212, and R. vs. Field, 1 Leach 283.--See general remarks on forgery, and form of indictment under sect. l.-As under sect. 1, the words with intent to defraud " are not necessary in the indict- ment, since the Statute does not contain them. See Reff vs Aspin, 12 Cox 391, and remarks under sects. 42 and 36. It was held, in R. vs. Ogden, 6 C. & P. 631, under a similar Statute, that a fraudulent intent was not necessary but in a case of Reg. vs. AUday, 8 C. & P. 136, Lord Abmger, ruled the contrary : " The Act of Parliament he said, does not say that an intent to deceive or defraud IS essential to constitute this offence, but it is a serious question whether a person doing this thing innocently, and intending to pay the stamp duty is liable to be transported. I am of opinion, and I hope I shaU not be J' 't 84 TIIR CRIMINAL STATUTB LAW, found to be wrong, that to constitute this offence, tliem must be a guilty mind. It is a maxim older than the law of England, that a man is not guilty unless his mind be guilty." This opinion is not everywhere followed. Though Lord Abinger seems to hold to it, as, in another case, Reg. vs. Page, S C. & P. ^2^2, -{see remarks under seeL 11 of the Coin -4c<),— this learn .^d Judge held, upon thesaim) prii;- ciple, that giving counterfeit coin in charity, knowing it to be such, is not criminal, though m the Statute there- are no words with reject to defrauding. But this is over- ruled, as stated by Baron Alderson, in Rag. vs. Ion, 2 Den. 484; and Greaves well remarks (on Reg. vs. Page): ^' As every person is taken to intend the probable consequence of his act, and as the probable consequence of giving a piece of bad money to a beggar is that that beggar will pass it to some one else, and thereby defraud that person, qu(ere, whether this case rests upon satisfac- tory grounds ? In any case a party may not be defrauded by taking base coin, as he mcuj pass it again, but still the probability is that he will be defrauded, and that is suffi- cient."—! Russell, 126, note Z. And are there not cases, where a party, receiving a counterfeited coin or a false note, not only ma^ not be defrauded, but will certainly not be defrauded As for example, suppose that during an election, a«y one buys an elector's vote, and pays it with a forged bill,— is the uttering of this bill, with guilty knowledge, not criminal? Yet, the whole bargain is a nuUity : the seller has no right to sell ; the buyer has no right to buy ; if he buys, and does not pay, the seller has no legal or equitable claim against him, though he may have fulfilled his part of the bargain. AS TO FOROINO STAMPS. 85 If tlie buyer does not pay, htf does not defraud the seller : he cannot defraud him, since he does not owe him anything ; it, then, cannot be said that he defrauds him in giving him, in payment, a forged note. Why see hi this a fraud, and no fraud in giving a counterfeit note, in charity, to a beggar? Nothing is due to this beggar, and he is not defrauded of anything by receiving this forged bill, nor is this elector, who has sold his vote, defrauded of anything, since nothing was due to him: they are botli deceived but not defrauded. In the genel ral remarks, on forgery, ante, an opinion was expressed that forgery would be better described as " a false making with the intent to defraud or deceive,'' and such cases as the above seem to demonstrate the necessity of a codifi- cation of our criminal laws. And, when the Statute makes no mention of the intention, does it not make the Act prohibited a crime in itself, apart of the intention t Of course, it is a maxim of our hvr that " actus nonfacit reum nisi mens sit rea" or, as said in other words, by Starkie, 1 Cr., pi. 177, that, ^'to render a party criminjJly responsible, a vicious will must concur with a wi'on'^ful act." " But," continues Starkie, "though it be universally true, that a man cannot become a criminal unless his mind be in fault, it is not so general a rule that the guilty intention must be averred upon the face of the indictment." And then, for example, does not the man who forges a stamp, or, scienter^ utters it, do wilfully an ^unlawful act ? Does not the law say that this act, by itself, is criminal ? Has Parliament not got the right to fiay : "The forging, false-making a stamp, or knowingly uttering it, is a felony, by itself, whether the person who •does it means wrong, or whether he means right, or whe- ther lie means nothing at all?" And this is exactly 89 nil! CRIMINAL BTATnTE LAW. ''='r what it has said with regard to stamps, the Great Seal, records ol* the Courts of Justice, &c. It has said of these: "they shall bo sacred, inviolable: you shall not deface them, imitate them, falsify, or alter them in any way or maimer whatsoever, and if you do, yoa will bo a felon." And to show that, as regards these documents, the intent to defraud wasrK>t to be a material element of the offence, it has expressly, in all the other clauses of the Statute, where it did require this intent to make the act criminal, inserted the words " with intent to defraud," and left them out in the clause concerning the said stamps. Great Seal, Court records, &c.— And no one, would be prepared to say, that the maxim " la Jin justifie les moi/ens" has found its introduction intO' the English Criminal Law ; and that,, for instance, a clerk of a Court of justice is not guilty of a criminal act„ if he alters a record, provided that the alteration is done with a good intent, and to put the record, as Jie thinks, it ought to be, and should, in fact, be.— Is it not better to. say that in such cases, the guilty mind, the evil intent^ the mens rea consist in the wilful disobedience to a positive law, iathe rebellious infraction of the enactmenta of the legislative authority ? Against the preceding remarks, it mufst be saidthatBishop^ 1 Cr. L. 345, and 2 Cr. L. 6a7, cites these two cases, Reg. vs. Allday, and Reg. vs. Page, and apparently approves of the judgments given in them; but Baron Alderson'a remarks on Reg. vs. Page, in Reg. vs. Ion, do not appear to have been noticed in Bishop's learned books.. At the same tin>e, it may be mentioned that in his \ Cr. Procedure, after remarking, par. 521, that the ad- judged law, on this question, seems to be not quite con- wstent with the general doctrine^ and not quite clear and I A8 TO FOROINO BANK NOTES, ETO. tl uniform in itself, thiH distinguished author says, in a foot noto, to par. 622: " Now, in this complication of things, where also practice has run on without decision, and then decision has proceeded witiiout much reference to the principles adhering in the law, it is not surprising that, on this question of alleging the intent, legal results have been reached, not altogether harmonious with one another, and not uniformly correct in principle. Still, as this is a practical cpiestion, the practical good senne of the judges has prevented any great inconvenience attend- ing this condition of things." See remnrks by Greaves, on Reg. vs. Hodgson, under general remarks on forgery, ante, page 45. AS TO FORQINO BANK NOTES, ETC., ETC., ETC. Sect. 15 - Whosoever forges or alters, or offers, utters, disposes of, or puts off, knowing tlie same to l)e forged or altered, any note or bill of exchange of any body n,r- porate, company, or person, carrying on the business of bank.irs, commonly calhid a bank note, a bank bill of exchange, or a bank post bill, or any endorsement on or assignment of any bank note, bank bill of exchan-e, or bank post bill, with intent to defraud, is guilty of Mony, and shall be liable to be imprisoned in the Penit.intiury for life, or for any term not hm than two years, or to be impnson(!d in any other gaol or place of confinemrnr lor any term le.s than two years, with or without hard la- bour, and with or without solitary confinement.— -24-25 Vict., ch. 98, s. 12, Imp. As to sureties for the peace in felonies under this Act see jmt, sect. 58. ' As to solitary confinement, see sect. 94 of the Proce- dure Act of 18G9. 88 THB CRIMINAL 8TATUTB LAW. im Indictment.'— feloniously did forge a certain note of the Bank of commonly called a bank- note, for the payment of ten dollars, with intent tliereby then to defraud, against the fonn (2nd Count.) And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. S. afterwards, to wit, onthoday and year aforesaid, feloniously did otter, utter, dispose of and put oft" a certain other forged note of the Bank of commonly called a bank-note, for the payment often dollars with intent thereby then to defraud, — he the said J. S. at the time he so ottered, uttered, dis- posed of and put oft" the said last mentioned forged note as aforesaid, then and there well knowing the same to be forged, against the form Archbold, 573. It is unnecop-iry to set out the forged instrument : it is sufHcient to , .ribe it by any name or designation by which it is usually known, or by its purport.— Section 49, 2)ost, and sect. 24 of the Procedure Act of 1809. An indictment need not state, in the counts for utter- ing, to whom the note was disposed of. — Rex. vs. Holden, R. & R. 154 ; 2 Leach, 1019. The intent to defraud any particular person need not be alleged or proved.— Sect. 51, post. Under the counts for uttering, evidence may be given that the defendant offered or tendered the note in payment, or that he actually passed it, or otherwise disposed of it to another person. Where it appeared that fclio d.;feu- dant sold a forged note to an agent emplov* o the Bank to procure it from him, the judges neki this to be within the Act, although it was objected that the pri- soner had been solicited to commit the act proved against liira, by the Bank themselves, by means of their agents. — It va, Holden, ubi suprdb. So where A. gave B. a forged PURCHASINO OR llAVINO FORGSD RANK N0TE8, KTO. 89 note to jNisS for him, mu\ upon P.'» tendering it in pay- ment ofsonio goods, • wa8 Htoppod : tlio majority of the judges held, tliut A., by giving the note to U. wm guilty of disposing of and putting Hvvay the note, within therneauing of the Act.— R. vs. Palmer, U.& U. 72-, U. vs. fSoares, K. & R. 25 ; R. vs. 8tewart, R. & R. iui3 ; and R. vs. Giles, 1 J[ood. 166, vjrhere it was held, that giving a fbrg('d note to an innocent agent, or an accotnplice, that he may pass it, is a disposing of, and putting it away, within the meaning of the Statute. See general reuuirks on forgery. Upon the trial of uny'indictment for any offence against this suction, the jury may, if the evidence warrants it, under sect. 49 of the Procedure Act of 1809, convict the prisoner of an attempt to commit the 8ame.~2 Rus- sell, 874. PUaCHASING OR HAVII^O FORGED EANK NOTES, ETC. Sect. 16.— Whosoever, without lawful authority or excuse, (the proof whereof shall lie on the party accused) purchases or receives from any other person, or has in his custody or possession any forged bank note, bank bill of exchange, or bank post bill, or blank bank note, blank bank bill of exchange, or blank bank post bill, knowin<' the same to be forged, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding fourteen years and not less than two years, or to be imprisoned iu any other gaol or place of con- finement for any term less than two years, with or without hard labor— 24-25 Vict., ch. 98, s. 13, Imp. As to sureties for the peace in felonies under this Act, see post, sect. 58. As to what constitutes a criminal possession under this Act, see jjos^, sect. 52. 90 THE CRIMINAL STATUTE LAW. Indictment — Tlio jiirura for Our Lady the Qiieon, upon thoir oath present, that iV. B. on fijlon- * i(»usly and without lawful authority or excuse, had in his custody and possession five forged bJMik notes for the payment of ten dollars each, the said A. B. then well knowing the said several bank notes and each and eviuy of them respectively to be forg«;d ; against the form of the Statute in such case made and provided, and against the peace of Our Lady the Queerj, her Crown and dignity. —Archbold, 59(5 ; 2 Burn's Just. 082. In R. vs. Rowley, R. & R. no, it was lield, that every uttering included having in custody and possession, iind, by some of the judges, that, without actual possession, if the notes had been put in any place under the prison- er's control, and by his direction, it was a sufficient pos- session within the Statute.— See now, sect. 5'2, post. Upon the trial of any indictment for any oflence under this section, the jury may, if the evidence warrants it, under sect. 49 of the Procedure Act of 1809, convict the prisoner of an attempt to commit the same.— 2 Rus- sell, 874. AS TO MAKING PAPER AND ENGRAVING PLATES, ETC., ETC. FOR BANK NOTES, ETC. Sect. 17.— Whosoever, without lawful authority or excuse, the proof whereof shall lie on the pjirLy Hccuscd, makes or uses or knowingly has in his custody or pos- session, any frame, mould or instrument, for the uudving of paper used for Dominion or Trovincial notes, or for bank notes with any words used in such notes, or any part of such words intended to resemble or pass for the Siime, visible in the substaiice of the paper, or for the making of paper with curved or waving bar lines, or AS TO MAKINO PAPER AND ENGRAVINQ PLATES, ETC. 91 witli the laying wire lines thereof in a waving or curved shape, or with any number, sum or amount expressed ih 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 the paper used for such notes, respectively, or makes, uses, sells, exposes to sale, utters or disposes of, or knowingly has in his custody or possession any paper whatsoever with any words used in such notes, or any part of such words, intended to resemble and pass for the same, visible in the substance of the paper, or any paper with curved or waving bar lines, or with the laying wire lines thereof in a waving or curved shape or with any number, sum, or amount expressed in a word or words in letters, appearing visible ill the substanc then, &r» addition 1 n^To' . ''"^''" ™'«™"' »• hold of the pronortyt iTrtL r'T.'"' *° »• *'"> '^""^ After thi», the pnW K it "■"/fV^P'"'*"'' ■•«'''W- to the other Vr!:ZZl\r;Tl'^Z f T'^""'^"* veyed to G. for a lon^ ^..rr. > ^ ^ ^^"^ «« «»"- G., and upon this deed, thp r^ri. • ^ *^ ^- ^^^ po«.io„^f thisprrt^f;f rrr^tL^^^^^ so antedated for the n„r««. ^ j\ ^^ *^*^ '^^ed to forge.,, .jtZ rr;:;t";ttf '"fV"™-™*^^ .naking a false deed in hi. ow7„ame -pL "Tf ""^ U Cox, 852. name.— Reg. vs. Ritson, Letters of orders issued bv a biahn^ „ ^r ■ and so has been admitted into «,„ T'> ^/^"«^ *''"* '» deed within this se^on If I '^ '"■*™' '' "o* » "ot within this TtatZ' b . '^f^ "^ '»'='' '-^t*"^' « iaw.-Reg. V. ^ot:^'. c-. ^f""^""' "* """'-■' tio^'^eiL;"'::!":?^^ 7 "'™"^ •"'^- *-•« - -ner of an attempt to comtlt ttlam;.""™* '"^ P""' AS TO FORGING WILLS. the sam . to be forged or altered .m mi ! ' knowing any te™ ZV^ZoTj^r^Z "' T"'""""' '"' hour, and with or Jtt?',? ' "'"•""* '""■'' '»- Vict.; eh. 98, s. 21, I*;:* "'""^ <'<'nfi»eme„t.-24-2S -.'flif. »!■ ll if u 100 TOT CRIMINAL BTATUTE LAW. Ab to sureties for the peace in felonies under this Act, aeepostf sect. 5S. As to solitary confinement, see sect. 94 of the Proce- dure Act of 1869. Indictment. — feloniously did forge a cer- tain will and testament purport! i ^ to be the last will and testament of one with intent thereby then to de- fraud, against the form (2nd Count.) did offer utter (as in the last precedent.) — Archbold, 575. The judges were equally divided upon the question whether in the absence of the existence of some person who could have been defrauded by the forged will, a count for forging it with intent to defraud a person or persons unknown could be supported. — R. vs. Tyhiey, 1 Den. 319. ^ee postf sect. 66. Forgery may be committed by the false making of the will of a living person ; or of a non-existing person. — R. vs. Murphy, 2 East P. C. 949 ; R. vs. Sterling, 1 Leach, 117 ; R. vs. Coogan, 1 Leach, 449 ; R. vs. Avery, 8 C. & P. 596. So, though it be signed by the wrong chris- tian name of the person whose \ LAW. change is as follows, that in to say : (»ct it out vcrbatitn^y he, th(^ Naid J. S. on the lie8, or causes or procures to be applied any trade mark, or any forged or couuterfeited trade mark, to any chaiiel or article, not being tlie particular or peculiar description of manufacture, workmanship, production or merchandise, denoted or intended to be denoted by 3uch trade mark, or by such forged or counterfeited trade mark, is guiJty of a misdemeanor; and every persou so committing a misdemeanor shall also forfeit to Her Ma- jesty every chattel and article belonging to such person to which ho has so unlawfully applied, or caused or pro- cured to be applied, any such trade mark, or forge 1 or counterfeited trade mark as aforesaid ; and every instru- ment in the possession or power of such person, and by means of which any such trade mark, or forged or coun- terfeited trade mark as aforesaid, has been so applied, and every instrument or mark in the possession or power of such person for applying any such trade mark, or counterfeited trade mark as aforesaid, shall be forfeits to Her Majesty ; and the court before which any sue? misdemeanour is tried may order such forfeited chattels or articles as aforesaid to be destroyed or otherwise dis- posed of as such court thinks fit. 3. Every person who, with intent to defraud, or to enable another to defraud any person, applies or causes or procures to be applied any trade mark or any forged or counterfeited trade mark, to any cask, bottle, stopper, cork, capsule, vessel, case, cover, wrapper, band, reel' ticket, label or other thing in, on, or with which any chattel or article is intended to be sold or is sold, or utter- ed or exposed for sale, or intended for any purpose of trade or manufacture ; or encloses or places any chattel or article, or causes or procures any chattel or article to be enclosed or placed in, upon, under, or with any cask, ^•■I III m ■ It 116 Tint oRnrtNAT, statittb law. •I bottle, stopper, cork, capsule, vessel, case, cover, wrap- per, band, reel, ticket, label or other thing to vvhicii any trade mark has been falsely applied, or to which any forged or counterfeited trade mark has been a{)plied ; or applies, or attaches, or causes or procures to bo applied or uttarhed to any chattel ■ ;• article, any case, cover, reel, ticket or label or other thiiig to which any trade mark has been falsely applied, or to which any forged or coun terfeited trade mark has been applied; or encloses, places or attaches any chattel or article, or causes or procures any chattel or article to bo enclose*!, i)laced, or attached in, upon, under, with or to any cask, bottle, stopper, ves- sel, case, cover, wrapper, band, reel, ticket, label or other thing having thereon any trade mark of any other person, is guilty of a misdemeanor ; and every person so committing a misdemeanor, shall aim forfeit to Her Ma- jesty every such chattel and article, and also every such cask, bottle, stopper, vessel, case, cover, wrnp[>er, band, reel, ticket, label or other thing as aforesaid, in the pos- session or power of such person ; and every other simi- lar cask, bottle, stopper, vessel, case, cover, wrapper band, reel, ticket, label or other thing made to be used in like manner as aforesaid, and every instrument in the possession or power of such person, and by means of which any such trade mark, or forged or counterfeited trade mark, as aforeeaid, has been applied, and also every instrument or mark in the possession or power of such person for applying any such trade mark, or forged or counterfeited trade mark as aforesaid, shall be forfeited to Her Majesty ; and the Court before which any such misdemeanor is tried, may order such forfeited articles, as aforesaid, to be destroyed or otherwise disposed of as such Court thinks fit. 4. Every person who sells, utters or exposes, either for TfrE TRADE MABKH OPrENOES ACT. 117 sal« ot- for any purpoHo of trade ormanufacturo, or causes or procures to bo sold, uttered, or exposed for sale or other purpose as aforesaid, any chattel or artich?, toge- ther with any forged or counterfeited trade mark, which he knows to b*i forged or counterfeited, or together with the trade mark of any other person applied or used falsely or wrongfully or without lawful authority or excuse, knowing such trG«le mark of another person to have been so applied or used as aforesaid, and that, whether any auch trade mark, or forged or counterfeited trade mark, as aforesaid, together with which any such chattel or arti- cle is sold, uttered or exposed for sale or other purpose as aforesaid, be in, upon, about, or with such chattel or article, or in, upon, about, or with any cask, bottle, stop- per, cork, capsule, vessel, case, cover, wrapper, band, reel, ticket, label or other thing in, upon, about or with which such chattel or article is so sold or uttered or ex- posed for sale or other purpose as aforesaid — shall for every such offence forfeit and pay to Her Majesty a sum of money ecjual to the value of the chattel or article so sold, uttered, olFerud or exposed for sale or other purpose as aforesaid, and a further sum not exceeding twenty dollars and not less than two dollars. 5 Every addition to and every alteration of, and also, every imitation of any trade mark which is made, applied or used with intent to defraud, or to enable any other per- son to defraud, or which causes a trade mark with such alteration or addition, or causes such imitation of a trade mark, to resemble any genuine trade mark so or in such manner as to be calculated or likely to deceive, shall be and be deemed to be a false, forged and counterfeited trade mark within the meaning of this Act ; and every act of making, applyinjr or otherwise using, procuring vending, or dehvering to another, any such addition to. 118 THE CRIMINAL STATUTE LAW. or alteration of, a trade mark or any such imitation of a trade mark, as aforesaid, done by any person with intent to defraud, or to enable any other person to de- fraud, shall be and be deemed to be forging and counter- feiting a trade mark within the meaning of this Act ; and every act of making, applying, using, procuring, vend- ing or delivering to another, or having in possession any forged or counterfeited trade mark, or any trade mark without the authority of the owner of such trade mark or of some person by him authorized to use or apply the same, or other lawful and sufficient excuse, shall be pri- md facie evidence of an intent to defraud, or to enable another person to defraud, and shall be deemed to be forging and counterfeiting such trade mark, within the meaning of this Act. 6. Where any person has, before or after the coming into force of this Act, sold, uttered or exposed for sale or other purpose as aforesaid, or has caused or procured to be sold, uttered or exposed for sale or other purpose as aforesaid, any chattel or article, together with any forged or counterfeited trade mark, or together with the trade mark of any other person used without lawful au- thority or excuse as aforesaid, and that, whether such trade mark, or such forged or counterfeited trade mark as aforesaid, be in, upon, about or with such chattel or article, or in, upon, about or with any cask, bottle, stop- per, cork, capsule, vessel, case, cover, wrapper, band, reel, ticket, label or other thing in, upon, about or with which such chattel or article has been sold or exposed for sale, such person shall be bound, upon demand in writing delivered to him, or left for him at his last known dwell- ing house, or at the place of sale or exposure for sale, by or on the behalf of any person whose trade mark has been so forged or counterfeited, or used without lawful THE TRADE MARKS OFFENCES ACT. 119 authority or excuse, as aforesaid, to give to the person requiring the same, or his Attorney or Agent, within forty-eight hours after such demand, full information, in writing, of the name and address of the person from whom he purcliased or obtained such chattel or article, and of tlie time when he obtained the same : and it shall be lawful for any Justice of the Peace, on information on oath of such demand and refusal, to summon before him the party refusing, and on bemg satisfied that such de- mand ought to be con^plied with, to order such informa- tion to be given within a certain time to be appointed by him I and any such party who refuses or neglects to com- ply with such order shall for every such offence, forfeit and pay to Her Majesty, the sum of twenty dollars, and such refusal or neglect shall be prima facie evidence that the person so refusing or neglecting had full knowledge that the trade mark, together with which such chattel or article was sold, uttered or exposed for sale or other purpose, as aforesaid, at the time of such selling, uttering or exposing', was a forged, counterfeited and false trade mark, or was the trade mark of a person, which had been used without lawful authority or excuse, as the case may be. 7. Every person who, with intent to defraud, or to enable another to defraud, puts or causes or procures to be put upon any chattel or article, or upon any cask, bottle, stopper, cork, capsule, vessel, case, cover, wrapper, band, reel, ticket, label or other thing, together with which any chattel or article is intended to be, or is sold or uttered, or exposed for sale, or for any j)urpose of trade or manufacture, or upon any case, frame or other thing, in or by means of which any cliattel or article is intended to be, or is exposed for sale, any false descrip- 120 THE CRIMINAL STATUTE LAW. tion, statement ci other indication of or requesting the the quality, number, quantity, measure or weight of such chattel or article, or any part thereof, or of the place or country in which such chattel or article has been made, manufactured, bottled, put up, or produced, or puts or causes, or procures to be put upon any such chattel or article, cask, bottle, stopper, cork, capsule, vessel, case, cover, wrapper, band, reel, ticket, label or thing as aforesaid; any word, letter, figure, signature or mark, for the purpose of falsely indicating such chattel or arti- cle, or the mode of manufacturing, bottling or putting up, or producing the same, or the ornamentation, shape or configuration thereof, to be the subject of any exist- ing patent, privilege or copyright, shall, for every such offence, forfeit ahd pay to Her Majesty a sum of money equal to the value of the chattel or article so sold or uttered or exposed for sale, and a further sum not ex- ceeding twenty dollars, and not less than two dollars. S. Every person who sells, utters or exposes for sale, or for any purpose of trade or manufacture, or causes or pro- cures to be sold, uttered or exposed for sale, or other purpose as aforesaid, any chattel or article, upon which has been, to his knowledge, put, or upon any cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label or other thing, together with which such chattel or article is sold or uttered, or exposed for sale or other purpose as aforesaid, has been so put, or upon any case, frame or other thing used or employed to expose or exhibit such chattel or article for sale, has been so put, any false description, statement or other indication of, or respecting the number, quantity, measure or weight of such chattel or article, or any part thereof, or the place or country in which such chattel or article has been made, m-anufactured or produced, shall, for every such H THE TRADE MARKS OFFENCES ACT. lb offence, forfeit and pay to Her Majesty a sura not exceed- ing twenty dollars, and not less than two dollars. 9. Provided always that the provisions of this Act shall not be construed so as to make it any offence for any person to apply to any chattel or article, or to any cask, bottle, stopper, cork, capsule, vessel, case, cover, wrapper, band, reel, ticket, label or other thing, with which such chattel or article is sold, or intended to be sold, any name, word or expression generally used for indicating such chattel or article to be of some particular class or description of manufacture only; or so as to make it any offence for any person to sell, utter, or offer, or expose for sale any chattel or article to which, or to any cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing sold therewith, any such generally used name, word or expression, as aforesaid, has been applied. 10. In every indictment, pleading, proceeding, and document whatsoever, in which any trade mark is intend- ed to be mentioned, it shall be sufficient to mention or state the same to be a trade mark without further or otherwise describing such trade mark, or setting forth any copy or/ac simile thereof; and in every indictment, pleading, proceeding and document whatsoever, in which it is intended to mention any forged or counterfeited trade mark, it shall be sufficient to mention or state the same to be a forged or counterfeited trade mark, without further or otherwise describing such forged or counter- feited trade mark, or setting forth any copy or/ac simile thereof. 11. The provisions in this Act contained, of or con- cerning any act or any proceeding, judgment or convic- tion for any act hereby declared to be a misdemeanor or offence, shall not, nor shall any of them, take away, 122 THE CRIMINAL STATUTE LAW. diminish or prejudicially affect any suit, process, proceed- ing, right, or remedy, whiuix any person aggrieved by such act may be entitled to at law, in equity or otherwise, and shall not, nor shall any of them, exempt or excuse any person from answering or making discovery upon examination as a vdtness, or upon interrogatories, cr otherwise, in any suit or other civil proceeding : provided always, that no evidence, statement or discovery, which any person is so compelled to give or make shall be ad- missible in evidence against such person in support of any indictment for a misdemeanor at common law or otherwise, or of any proceeding under the provisions of this Act. 12. In every indictment, information, conviction, pleading and proceeding against any person for any mis- demeanor or other ofience against the provisions of this Act, in which it may be necessary to allege or mention an intent to defraud, or to enable another to defraud, it shall be sufficient to allege or mention that the person accused of having done any act which is hereby made a misdemeanor or other offence, did such act with intent to defraud, or with intent to enable some other person to defraud, without alleging or mentioning any intent to defraud any particular person ; and on the trial of any such indictment or information for any such misde- meanor, and on the hearing of any information or cliarge of or for any such other offence, as aforesaid, and on the trial of any action against any person to recover any penalty for any such other offence, as aforesaid, it shall not be necessary to prove an intent to defraud any parti- cular person, or an intent to enable any particular person to defraud any particular person, but it shall be sufficient to prove with respect to every such misdemeanor or offence that the person accused did the act charged with THE TRADE MARKS OFFENCES ACT. 123 intent to defraud, or with intent to enable some other person to dafraud, or with the intent that any other per- son might be enabled to defraud. 13. Every person who aids, abets, counsels or pro- cures the commission of any offence which is by this Act made a misdemeanor, is also guilty of a misde- meanor. 14. Every person convicted or found guilty of any offence which is by this Act made a misdemeanor, shall be hable, at the discretion of the Court, and as the Court shall award, to suffer such punishment by imprisonment for not more than two years, with or without hard la- bour, or by fine, or both by imprisonment with or without hard labour and fine, and also by imprison- ment until the fine (if any) shall have been paid and satisfied. 15. In every case in which any person has committed or done any offence or act, whereby he has forfeited or become liable to pay to Her Majesty any of the penalties or sums of money mentioned in the provisions of this Act, every such penalty or sum of money maybe recov- ered in an action of debt, which any person may, as plamtiffforand on behalf of Her Majesty, commence and prosecute to judgment in any court of record, and the amount of every such penalty or sum of money to be recovered in any such action, shall or may be deter- mmed by the jury (if any) sworn to try the issue in such action, and if there be no such jury, then by the court or some other jury as the court thinks fit ; or instead of any such action being commenced, such penalty or sum of money may be recovered by a summary proceed- mg before two Justices of the Peace having jurisdiction in the county or place where the party offending resides lU THE CRIMINAL STATUTE LAW. or has any place of business, or in the county or place in which the offence has been committed. 16. In every case in which any such penalty or sum of money forfeited to Her Majesty, as hereinbefore men- tioned, is sought to be recovered by a summary proceed- ing before two Justices of the Peace, the offence or actj by the committing or doing of which such penalty or sum of money has been so forfeited, shall be and be deemed to be an offence and act within the meaning of the Act passed in the session held in the thirty-second and thirty-third years of the reign of Her present Ma- jesty, intituled : " An Act respecting the duties of Jus- " tices of the Peace out of Sessions, in relation to sum- " mary convictions and orders ; " and the information, conviction of the oftender, and other proceedings tor the recovery of the penalty, or sum so forfeited, shall be had according to the provisions of the said Act. 17. In every case in which judgment is obtained in any such action as aforesaid, for the amount of any such penalty or sum of money forfeited to Her Majesty, the amount thereof shall be paid by the defendant to the Sheriff or the officer of the court, who shall account for the same in like manner as other moneys payable to Her Majesty, and, if it be not paid, may be recovered, or the amount thereof levied, or the payment thereof enforced by execution or other proper proceeding as money due to Her Majesty ; and the plaintiff suing on behalf of Her Majesty, upon obtaining judgment, shall be entitled to recover and have execution for all his costs of su'^. which shall include a full indemnity for all costs and charges which he shall or may have expended or incurred in, about or for the purposes of the action, unless the court or a judge thereof, directs that costs of the ordinary amount only shall be allowed. I THE TRADE MARKS OFFENCES ACT. 1^5 18. No person shall commence any action or proceed- mg for the recovery of any penalty, or for procuring the conviction of any offender in manner hereinbefore pro- vided after the expiration of three years next after the committrng of the offence, or one year next after the ' first discovery thereof by the person proceeding 19. lu every case in which, after this Act is in force ' any person sells or contracts to sell (whether by writing or not) to any other person, any chattel or article, with any trade mark thereon, or upon any cask, bottle, stop- per cork, capsule, vessel, case, cover, wrapper band reel ticket label or other thing, together S wMch such chattel or article is sold, or contracted to be sold the sale or contract to sell shall in every such case be deemed to have been made with a warranty or contract by the vendor to, or with the vendee, that every trade mark upon such chattel or article, or upon any such cask, bottle, stopper, vessel, case, cover, wrapper, band reel, ticket, label or other thing, as aforesuid,^was gen- mne and true, and not forged or counterfeit, and not wrongfully used, unless the contrary be expressed in some writing signed by or on behalf of the vendor, and deli- vered to and accepted by the vendee. 20. In every case in which, after this Act is in force any person sells or contracts to sell (whether by writing or not) to any other person any chattel or article upon which, or upon any cask, bottle, stopper, cork, capsule, vessel, case, cover, wrapper, band, reel, ticket, label or other thing, together with which such chattel is sold or coni^vacted to be sold, there is any description, statement or other indication of or respecting the number, quality quantity measure or weight of such chattel or article or the place or country in which such chattel or article has been made, manufactured, bottled or put up, or pro- 126 TUB CRIMINAL STATUTE LAW. duced, tlie sale or contract to sell shall in every such case, be deemed to have been made with a warranty or contract by the vendor to or with the vendee, that no such description, statement or other indication was in any material respect false or untrue, unless the contrary be expressed in some writing signed by or on behalf of the vendor, and delivered to and accepted by the vendee. 21. In every case in any suit at law or in equity against any person for forging or counterfeiting any trade mark, or for fraudulently applying any trade mark to any chat- tel or article, or for selling, exposing for sale, or utter- ing any chattel or article with any trade mark falsely or wrongfully applied thereto, or with any forged or coun- terfeit trade mark applied thereto, or for preventing the repetition or continuance of any such wrongful act, or the commission of any similar act, in which the plaintiff obtains a judgment or decree against the defendant, the Court shall have power to direct every such chattel or article to be destroyed or otherwise disposed of: and in every such suit in a Court of law, the Court may, upon giv- ing judgment for the plaintiff, award a writ of injunction or injunctions to the defendant, commanding him to forbear from committing, and not by himself or otherwise, to repeat or commit any offence or wrongful act of the like nature as that of which he has been convicted by such judgment ; and any disobedience of any such writ of in- junction or injunctions shall be punished as a contempt of Court I and in every such suit at law or in equity, it shall be lawful for the Court, or a judge thereof, to make such order as such Court or judge thinks fit, for the inspection of every or any manufacture or process carried on by the defendant, in which any such forged or coun- terfeit trade mark, or any such trade mark as aforesaid, is alleged to be used or applied as aforesaid ; and of every or TfTE TRADE MARIC8 OPFENOKS ACT. 127 any Chattel, article and thing in the possession or power of the defendant, aUeged to have thereon, or in any way ati;ached thereto, any forged or counterfeit trade mark or any trade mark falsely or wrongfully applied, and every or any mstrument or mark in the possession or power of the defendant, used, or intended to be, or capable of being used for producing or making any forged or counterfeit trade mark, or trade mark alleged to be forged or coun- terfeit, or for falsely or wrongfully applying any trade mark ; and any person who refuses or neglects to obey anyjuch order, shall be held guilty of a contempt of 22. In every case in which any person does, or causes to be done, any of the wrongful acts foUowing, that is to say :-forges or counterfeits any trade mark: or, for the pmj)ose of sale, or for the puqjose of any manufacture or trade, applies any forged or counterfeit trade mark to any chattel or article, or to any cask, bottle, stopper, cork, capsule, vessel, case, cover, wrapper, band, reel, ticket label or tung m or with which any chattel or article i in ended to be sold, or is sold, or uttered, or exposed for sale, or for any purpose of trade or manufacture ; or en- closes or places any chattel or article in, upon, under or vvith any cask, bottle, stopper, cork, capsule, vessel, case, cover, wrapper, band, reel, ticket, label or other thing, to which any trade mark has been fldsely applied ; or to which any forged or counterfeit trade mark has been applied or apphes or attaches to any chattel or article, any case cover, reel, wrapper, band, ticket, label or other thin<. to which any trade mark has been falsely applied or to which any forged or counterfeit trade marl ha's been applied ; or encloses, places or attaches any chattel or aiticle m, upon under, with or to any cask, bottle, stop- per, cork, capsule, vessel, ca.e, cover, reel, wrapper, band, 128 THE CRIMINAL STATUTE LAW. ticket, label or other thing having thereon any trade mark of any other person, every person aggrieved by any such wroiigful act, shall be entitled to maintain an action or suit, for damages in respect thereof, against the person guilty of having done such act, or causing or procuring the same to be done, and for preventing the repetition or continuance of the wrongful act, and the commission of any similar act. 23. In every action which any person under the provi- sions of this Act, commences as plaintift'for or on behalf of Her Majesty for recovering any penalty or sum of mo- ney, if the defendant obtains judgment, he shall be en- titled to recover his costs of suit, which shall include a full indemnity for all the costs, charges and expenses by him expended, or inourred, in, about or for the purposes of the action, unless the court or a judge thereof directs that costs of the ordinary amount only shall be allowed. 24. In any action which any person, under the provi- sions of this Act, commences as plaintiff for or on behalf of Her Majesty, for recovering any penalty or sum of money, if it be shown to the satistuction of the court, or a judge thereof, that the person suing as plaintiff for or on behalf of Her Majcjsty has no ground for alleging that he has been aggrieved by the committing of the alleged offence, in respect of which the penalty or sum of money is alleged to have become payable, and iC^o that the per- son so suing as plaintiff is not resident within the juris- diction of the court, or is not a person of sufficient pro- perty to be able to pay any costs which the defendant may recover in the action, the court or judge may order that the plahitiff shall give security, by the bond or recog- nizance of himself and a surety, or by the deposit of a THE TRADE MARKS OFFENCES ACT. sum of money, or otherwise, as the court or judqe thinks. fit, for the payment to the defendant of any costs which he may be entitled to recover in the action. 25. This Act shall commence and take effect on the first day of September, in the present year, one thousand eight hun(h-ed and seventy-two; and the thirtieth and thirty-first sections of the Act passed in the session held in the thirty-second and thirty-third years of Her Maies- ty s reign, intituled :-" An Act respacUng Forgery- and the ninth section of " The Trade Mark and Design Act of 1868 are hereby repealed, as regards any offence coin- mitted after this Act comes into force. 26 The expression, " The Trade Marks Offences Act 1S72, shall be a sufficient description and citation of this Act. The prisoner was convicted of forgery: it appeared hat one Borwick, the prosecutor, sold powders called 'Borwick's Baking Powders" and " Borwick's E^^ Powders," which powders he invariably sold in packers! wrapped up in printed papers. The prisoner procured 10,000 wrappers to be printed similar, with some exceptions, to Borwick's wrappers. In these wrappers, the prisoner enclosed powders of his own which he sold for Borwick's powders, and it was for the forgery and uttering of these wrappers that the prisoner was indicted. The jury found that the wrappers so far resembled Borwick's as to deceive persons of ordinary observation, and to make them believe them to be Bor- wick s, and that they were procured and used by the pri- soner with intent to defraud: held ih^t the conviction was wrong.-Reg. vs. Smith, Dears & B. 566. The judges were of opinion that the prisoner was guilty of obtaining money under false pretences, but not 130 THE CRIMINAL STATUTE LAW. of forgery. A similar case would now fall under the above Statute, provided the trade mark was registered. FORGEUY OF RAILWAY TICKETS, ETC. Sect. 32.— Whosoever knowingly forges or utters, know- ing the same to be forged, any ticket or order for a free or paid passage on any railway or on any steam or other vessel, with intent to defraud, is guilty of felonv, and shall be liable to be imprisoned in the Penitentiary for a term not exceeding three years nor less than two years, or to be imprisoned in any common gaol or place of con- finement other than a Penitentiary for any term less than two years. This clause is the 14th of ch. 94, C. S. C, and is not in the English Act ; it will meet such cases, as Reg. vs. Gooden, 11 Cox, 672. The word " knowingly " before " forges " , is useless, and not employed in the other sections, taken from the English Act; the absence of the words '' ofters, disposes of or puts off" a)so renders the clause defective and not ill conformity with the other parts of the Act. See general remarks on forgery, and remarks and form of indictment under Sect. 26. FORGERY OF RECORDS, PROCESS OF COURTS OF JUSTICE; DOCUAIENTS PRODUCED IN COURT, ETC. Sect. 33. — Whosoever forges or fraudulently alters, or ofters, utters, disposes of, or puts oft^, knowing the same to be forged or fraudulently altered, any record, writ, return, panel, process, rule, order, warrant, interrogatory, deposition, affidavit, affirmation, recognizance, cognovit actionem, or warrant of attorney, or any original docu- ment whatsoever, of or belonging to any ^^ourt of record. FOROERY OF RECORDS, ETC. igj or any bill, petition, process, notice, rule, answer plead ing, interrogatory, deposition, affidavit, affi-rnutro ;Vepor^^^ order or decree, or any original document whatsoever of or belonging to any Court of Equity or (Cr Ir a u,tende,i to be u,ej as evi,le„co in any courtl'n M '"' t-«n mentioned, is guilty of fe,o„y,:L Ta b Lrto' The worda in Italics are not in the EnMi.h A, f .i constitute an important extension of the c use ' k'' or fraudule'nt ; ^ t IT' a, v '"' '""".'" "" ^"»''''' -ord, or otre^ ^^ Z<^IZ Z:fZf '"' or certificate of any record'having Ife" lZ7' any court of rto Jo orJe "oXj^r:, ''l ""' <"" nrocoq^-f-^-r- -> • , »*^''' ^'^"'^uJulently alters anv ^ij,.i.f,^ ^i ^^2ff cuun Whatsoever ►•; or serves or enforces any 132 THE CRIMINAL STATUTE LAW. forged process of any court whatsoever, knowing the same to be forged, or delivers or causes to be delivered to any person, any paper, falsely purporting to be any such process, or a copy thereof, or to be any judgment, decree or order of any court of law or equity, or a copy thereof, knowing the same to be false, or acts, or pro- fesses to act under any such false process, knowing the same to be false, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding seven years and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement. — 24- 25 Vict., ch. 98, s. 28, Imp. The words in italics are not in the English Act. Greaves says : " In Reg. vs. Evans, 1 Dears and B. 236, and Reg. vs. Richmond, Bell 142, Bramwell, B., differ- ing from the other judges, thought that the words in the 9 and 10 Vict., ch. 95, s. 57, " who shall act or profess to act under any false colour or pretence of the process .f the Court " implied an acting under genuine process by false colour or pretence ; and in order to prevent any such doubt, the words " any such false process " are sub- stituted in this clause. The provisions of this clause are, — 1. Against any clerk, officer or deputy, uttering any false copy, or certificate of any record knowing it to be false ; — 2. Against any person other than such clerk, etc , etc., signing or certifying any such copy or certificate as such clerk | — 3. Against forging or uttering, knowing it to be forged, any such copy or certificate, or any such copy or certificate with a forged signature, knowing it to be forged ; — 4. Against forging the seal of any Court of record, or forging the process of any Court ivhatsoever ; — 5. Against serving or enforcing any forged process of any FORQERV OF RECORDS, ETC. '133 Court whatsoever, knowing it to be forged;- 6. Against delivering any pape: falsely purporting to be any such process or a copy thereof, or any judgment, decree or order ofany Court of law or equity, or a copy thereof knowing It to be false;--7. Against acting, or professing to act under any such false process, knowing it to be Sect 35.-Whosoever forges or fraudulently alters, or offers, utters, disposes of or puts off, knowing the same to be forged or fraudulently altered, any instrument, whe- ther wntten or printed, or partly written and partly pnnted which is or shaU be mar^ ^ evidence by any Act passed by the Legislature of any one of the late Pro- vinces of Upper Canada, Lower Canada or Canada, or passed or to be passed by the Parliament of Canada, or by the Legislature of any one of the Provinces of Ontano, Quebec, Nova Scotia, or New Brunswick, and for which offence no other punishment is herein pro- vided IS guilty of felony and shaU be liable to be impri- soned in the Penitentiary for any term not exceeding seven years, nor less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement. 24-25 Vict. ch. 98, s. 29, Imp. "' Sect. 36.— Whenever any such instrument has been admi ted in evidence, the Court or the judge or person who has admitted the same, may, at the request of any party against whom the same has been admitted in evi- ^ence, direct that the same shall be impounded and be kept in custody of some officer of the Court or other pro- tions as the Court, judge or person admitting the same, may seem meet. 134 THE CllIMlNAL STATUTE LAW. This cluuso is not in the English Act. It is taken from the Consolidated Statutes for Upper Cunada, ch. 101, sect. 2. QhoM Courts of civil jurisdiction, is it constitutional f As to sureties for the peace, in felonies under this Act, %Qfi post, sect. 58. As to solitary confinement, see sect. 94 of the Proce-, dure Act of 1SG9. See general remarks on forgery, and remarks, and form of indictment under sections 1 and ,14, ante. In Reg. vs. Powner, 12 Cox 235, it was held by Quain, J., that an indictment for forgery under sect. 28 of the English Act (sect. 34 of our Act, suprd) must allege an intent to defraud, ; but that this averment was unne- cessary in a count for fraudulently altering under the same section.— The "process'^ alleged to have been altered in this case, was an order by two Justices of the Peace, under the Poor Laws, and was held to fall under the aforesaid section. Upon the trial of any indictment for any offence under this section, the jury may, if the evidence warrants it, under sect. 49 of the Procedure Act of 1869, convict the prisoner of an attempt to commit the same. — 2 Russell, 857. FORGERY OF NOTARIAL ACTS, REGISTERS OF DEEDS, ETC. Sect. 37.— Whosoever forges, or fraudulently alters, or offers, utters, disposes of or puts off, knowing the same to be forged or fraudulently altered, any notarial act or instrument, or copy ptiriwrting to he an authenticated copy thereof, or any proces verbal of a surveyor, or like copy thereof, or forges, or fraudulently alters, or offers, or utters, disposes of or puts off, knowing the same to be forged or fraudulently altei ^. any duplicate of any in- strument, or any memorial, affidavit, affiimation, enti-y, certificate, indorsement, document, or writing made or FORGERY OP NOT.iRIAL ACTS, ETC. 135 iHsued under, the provisions of any Act heretofore passed by the Legislature of any one of the lutePn.vinces of Upper Canada, Lower Canada, or Canada, or passed or here- after to be passed by the Parliament of Canada, or by the Legislature of any one of the Provinces of Ontario, Que- bec, Nova Scotia or New Brunswick, for or relating to the registry of deeds, or other instruments or doeumatls respcctmg or concerning the title to or claims iqmi am, real or personal pr^perig whatever, or forges, or counter- leits the seal of or belonging to any office for the re-is- try of deeds, or other instruments as aforesaid, or any stamp or impression of any such seal ; or forges any name handwriting or signature, purporting to be the name) handwnting or signature of any person to any such me- morial, affiaavit, affirmeiion, entry, certificate, indorse^ ment, document, or writing, required or directed to be signed by or by virtue of any i^ct passed or to be passed, or offers, utters, disposes of or puts off, any such memorial or other writing as in this section before mentioned, having thereon any such forged stamp, or impression of any such seal, or any such forged name, handwritin- or signature, knowing the same to be forged, is guilty of felony, and shall be liable to be imprisoned in the Peni- tentiary for any term not exceeding fourteen years and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour and with or without solitary confinement.-04-05 Vict., ch. 98, s. 31, Imp The words m Italics are not in tlie En-lish Act : they seem prmcipally adaptable to the Proviiic. of Quebec. As to sureties for the pea.e, i.i fe'on:es un ler this Act, aeejiost, sect. 58. As to solitary canmement; s-o sec . 9: o"the 1 roce- dure Act of 1869. 136 THE CRIMINAL STATUTE LAW. See general remarks on forgery, and remarks and form of indictment, under sections 1 and 14, ante f also, under the last preceding section, as to the intent to defraud. Upon the trial of any indictment for any offence under this section, the jury may, if the evidence warrants it, under sect. 49 of the Procedure Act of 1869, convict the prisoner of an attempt to commit the same.— 2 Russell, 939. FORGERY OF ORDERS, SUMMONS, ETC., ETC., ETC., OF JUSTICES OF THE PEACE. Sect. 38. — Whosoever, with intent to defraud, forges or alters, or offers, utters, disposes of or puts off, know- ing the same to be forged or altered, any summons, conviction, order or warrant, of any Justice of the ±*eace, 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 declaration, taken or made before any Justice of the Peace, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for any tenn not exceeding three years, nor less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with oi- without solitary confinement— 24-25 Vict., ch. 98, s. 32, Imp. As to sureties for the peace, in felonies under this Act, see 2)ost, sect. 58. As to solitary confinement, see sect. 94 of the Proce- dure Act of 1869. See general remarks on forgery and form of indi(;tment for forgery therewith. FORGERY OF THE NAMES OF JUDGES, ETC. m Reg. vs. Powner, 12 Cox 235, ante, under sect. 36, is not very clear as to what is the difference between a '' process" of a Court under sections 33 and 34 ante, and an order, under the present section. The forgery of an affidavit taken before a Commis- sioner to receive affidavits Would not faU under this section. FORGERY OF THE NAMES OF JUDGES, CLERKS, ETC., ETC., ETC. Sect. 39.— Whosoever, with intent to defraud, forges, or alters any certificate, report, entry, indorsement, decla- ration of trust, note, direction, authority, instrument or writing, made or purporting or appearing to be made by any judge, officer or clerk, of any Court in Canada, or the name, handwriting or signature of any such judge, officer or clerk, as aforesaid, or offers, utters, disposes of, or puts off any such certificate, report, entry, indorse- ment, declaration of trust, note, direction, authority, instrument or writing, knowing the same to be forged ■or altered, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for any term not exceed, ing fourteen years and not less than two years, or to be imprisoned in any other gaol or place of confinement, for any term less than two years, witli or without hard labour and with or without solitary confinement.— 24-25 Vict., ch. 98, 8. 33, Imp. As to sureties for the peace, in felonies under this Act, see 2^ost, sect. 58. As to solitary confinement, see sect. 94 of the Proce- dure Act of 18G9. See general remarks on forgery, and form of indictment for forgery there will. Mr 138 THE CRIMINAL STATUTE LAW. FALSE LYACKNOWLEDGING RECOGNIZANCES, ETC., ETC., ETC. Sect. 40. — Whosoever, without lawful authority or excuse, the proof whereof shall lie on the party accused, in the name of any other person, acknowledges any recog- nizance of bail, or any cognovit actionem or judgment, or any deed or other instrument, before any Court, Judge^ Notari/, or other person lawfully authorized in that behalf, is guilty of felony, and shall be hable to be imprisoned in the Penitentiary for any term not exceeding seven years and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement.— 24-25 Vict., ch. 98, s. 34, Imp. The word "Notary/ " is not in the English Act. As to sureties for the peace^ in felonies under this Act, see post, sect. 58. As to solitary confinement, see sect. 94 of the Proce- dure Act of 1869. Indictment.— on feloniously did, without lawful authority or excuse, before (the said then being lawfully authorized in that behalf) acknow- ledge a certain recognizance of bail in the name of J. N. in a certain cause then depending in the said Court (or in the court of. .... .) wherein A. B. was plaintiff, and C. D. defendant, against the form — Archbold,Glo • 2 Russell, 1016. ' ' Upon the trial of any indictment, for any offence under this section, the jury may, if the evidence warrants it, under sect. 49 of the Procedure Act of iSG9, convict the prisoner of an attempt to commit the same. FORGERY OF REGISTERS OF BIRTHS, ETC. FORGERY OF MARRIAGE LICExXCES. 13^ Sect. 41.— Whosoever forges or fraudulently alters any licence or certificate for marriage, or offers, utters disposes of or puts off any such licence or certificate' knowing the same to be forged or fraudulently altered is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding seven years and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement.-~24-25 Vict., ch. 98 s 35, Imp. ' ' See remarks under next section. FORGERY OF REGISTERS OF BIRTHS, MARRIAGES AND DEATHS. Sect 42.— Whosoever unlawfully destroys, defaces or injures, or causes or permits to be destroyed, defaced or injured, any register of birth, baptisms, marriages, deaths or burials, which now is or hereafter shall be by law authorized or required to be kept in Canada, or in any one of the Provinces of Ontario, Quebec, Nova Scotia or New Brunswick, or any part of any such register, or any certified copy of any such register, or of any part thereof, or forges, or fraudulently alters in any such re- gister any entry relating to any birth, baptism, marria-e, death or burial, or any part of any such register, or any certified copy of such register, or of any part thereof, or knowingly and unlawfully inserts, or causes or permits to be inserted in any such register, or in any certified copy thereof, any flilse entry of any matter 1 elating to any birth, baptism, marriage, death, or burial, 140 THE CRIMINAL STATUTE LAW. or knowingly and unlawfully gives any false certificate relating to any birth, baptism, marriage, death or burial, or certifies any writing to be a copy or extract trom any auch register, I^nowing such writing or the part of such register whereof such copy or extract is so given, to be false in any material part;icular, or forges, or counterfeits the seal of or belonging to any register, office, or burial board, or offers, utters, disposes of or puts off any such register, entry, certified copy, certificate or seal, knowing the same to be false, forged or altered, or offers, utters, disposes of or puts off any copy or any entry in any such register, knowing such entry to be false, forged or altered, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life, or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary con- finement.— 24-25 Vict., ch. 98, s. 36, Imp. Sect. 43 — Whosoever knowingly and wilfully inserts or causes or permits to be inserted, in any copy of an) register directed or required by law to be transmitted to any registrar or other officer, any false entry of any matter relating to any baptism, marriage, or burial, or forges, or alters, or offers, utters, disposes of or puts off knowing the same to be forged or altered, any copy of any register so directed or required to be transmitted as aforesaid, or knowingly or wilfully signs or verifies any copy of any register so directed or required to be transmitted as aforesaid, which copy is false in any part thereof, knowing the same to be false, or unlawfully de- stroys, defaces or injures, or for any fraudulent purpose takes from its place of deposit, or conceals any such copy of any register, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life, or for / FORGERY OP REGISTERS OF BIRTHS, ETC. I4I any terrn not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement.— 24-25 Vict. ch. 9S s. 37, Imp. ' ' ^ As to sureties for the peace, in felonies under this Act 866^905^, sect. 58. ' As to solitary confinement, see sect. 94 of the Proce dure Act of 186 9. Indictment under sect. 4:2 for making a false entry in a marriage register.--. feloniously, knowingly and unlawfully did insert in a certain register of marriages which was then by law authorized to be kept, a certain false entry of a matter relating to a supposed marriage and which said false entry is as follows : that is to say {set tt out verbatim with inuendoes if necessary to explain it) I whereas in truth and in fact the said A. B. was not married to the saidC. D., at the said church, on the said ^day of as in the said entry is falsely alleged and stated ; and whereas, in truth and in fact, the said A B was not married to the said 0. D. at the said church or elsewhere, at the time in the said entry mentioned, or at any other time whatsoever, against the form (2nd Count.) feloniously did, knowingly and wil- luUy, offer, utter, dispose of and put off a copy of a certain other false entry relating to a certain supposed marriage, which said last mentioned false entry was before then mserted in a certain register of marriages, by law author- ized to be kept, and which said last mentioned false entry is as foUows : that is to say (set it out) whereas in truth and m fact {as above). And the jurors afore- said, upon their oath aforesaid do say that the said J S. at the time he so offered, uttered, disposed of and pufe 143 THE Cj|iirMINAL STATUTE LAW. ofr the said copy of the suid lust mentioned false entry well knew fhe said lust mentioned false entry to he false against the fl>rri — Archbold, 598. See R. vs. Sharne 8 C. & P. d[iO. ' In ileg. vs. Bovven, I Den. 22, the indictment was under what is now the first pjirt of sect. 42, and charged that " John Bowen feloniously and tviIfllJy {icilfulhj must now he uulaivjulhj) did destroy, deface and injure a certain register of to wit, the register of which said register was then and there kept {and by law authorized to he kept) as the register of the P^i*'sh of and was then and there in the custody o^ rector of the said parish of against the ^0™ " It was objected that the indictment was bad for charging three offences, destroying, defacing " and' injuring, the statute saying, destroying, defacing " or " injuring. A second objection was taken that no scienter was charged, and tliat the word '' knowingly " was not in the indictment. The indictment was held good. In Reg. vs. Asplin, 12 Cox 291, it was held by Martin,B., that upon an indictment under sect. 36, (sect. 42 of our Act) for making a false entry into a marriage register, it is not necessary that the entry should be made with intent to defraud, and that it is no defence that the marriage solemnized was null and void, J>..ing bigamous ; also tlmt, if a person knowing his name to be A, signs another name without authority, he is guilty, and it is imma- terial that he is a third witness, the Marriage Act only requiring two. Upon the trial of any indictment for any offence under these secrions, the jury may, if the evidence warrants it, under sect. 49 of the Procedure Act of 1869, convict the prisoner of an attempt to commit the same.— 2 Rus- sel, 939. DEMANDING I'ROPEllTV, ETC, I40 DEMANDING PUOl'EUTY UPON FORGED INSTRUMENTS. Sect. 44.-Who8oever, With intent to defraud, demands receives or obtains, or causes or procures to be delivered or paid to any person, or en As to solitary confinement, see sect. 94 of the Proro dure Act of 1869. Grern-es says : "This clause is new. It is intended to em- brace every case of demanding, etc., any property whatso- ever u, )n forged instruments j an,] it is intended to include bnng.ug an action on any forged bill of exchange, note orother security for mo ..y. The words ^proci^etobe dehvered or paid to any person ' were inserted to include cases where one personj^y means of a forged instrument causes money to be paid to another person, and to avoid 144 THE CRIMINAL STATUTE LAW. the difficulty which had arisen in the cases as to obtain- ing money by false pretences.— K. vs. Wavell, 1 Mood. 224 ; Keg. vs. Garrett, 1 Dears. 232." In Reg. vs. Adams, 1 Den. 38, the prisoner had obtained goods at a store with a forged order : this was held not to be larceny ; it would now fall under this clause. The clause seems to cover the attempt to commit the offence, as well as the ortenco itself, and if, as provided for by sect. 49 of the Procedure Act of 1SG9, a verdict of guilty of the attempt to commit the offence is given by the jury, the prisoner would stand convicted of a felony, and punishable under this clause though see Reg. vs. Connell, Cox, 178. FORGERY OF ANY D0CU3IENT OR WRITING WHATSOEVER. Sect. 45. — Whosoever maliciously and for any pur- pose of fraud or deceit, forges any document or thing written, printed or otherwise made capable ot being read, or utters any such forged document or thing, knowing the same to be forged, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement j and the wilful alteration for any purpose of fraud or deceit of any such document or thing, or of any document or thing the forging of which is made penal by this Act, shall be held to be a forging thereof. This clause is not in the English Act. It is very defective. It seems to be intended to cover all documents, etc., etc., etc., not before provided for hy the Act, and these words are omitted. And then, the word " maliciously " is here very improperly used : the FOBQIBT OF ANY DOOUMBNT, MO. I45 abBonco Of tho words offers, diyyoses of, and puts off also renders the clause very disaimilar to the other parts of the Ac . The last part is useless, as to documents not mentioned in h.s clause, and as to those mentioned in he clause, the words -or fraudulently alters" aA^r " forges »m the second line would have been more in conformity with the other parts of the Act. As to sureties for the peace in felonies under this Act Bee pout, sect. 58. ' As to solitary confinement, see sect. 94 of the Proce- dure Act of 1869. See general remarks on forgery, and form of indict- ment therewith ; each count under this clause should have feloniously, maliciously and for a purpose of fraud" and should be repeated with the variance and for a pJr- poseofdeceU. The count for uttering should not have offer, di^ose of or put off." If an alteration of.the docu- mentis charged, it must be stated to have been done Wilful y and for a purpose of fraud," and in another count wilfully and for a purpose of deceit." But it must be remembered that, in consideration of law, every altera. tionoUn instrument amounts to a forge.y of the whole and that an indictment for forgery will be supported by WOoUU fraudulent alteration, though, in cases where a genuine instrument has been altered, it is perhaps better to allege the alteration in one co-nt of the indictment.- 1 Starkie's Crim. pi. 99. The words "fraud or deceit" Me certainly very pro- perly employed in this clause, and, if they were not accompanied by the word "mahciously" would cover aU possible cases of forgery, (see general remarks, ante,) as the clause is not limited to any document or writing, wo^ otherwise provided for. 146 THE ORIMINiiL STATUTE LAW. Sect. 49 of the Procedure Act of 1869 would apply to the trial of any indictment for any offence against this clause. FORGERY OF ANY INSTRUMENT, HOWEVER DESIGNATED, IN LAW A WILL, BILL OF EXCHANGE, ETC., ETC., ETC., FORGERY OF BILLS MADE OUT OF CANADA, ETC., ETC., ETC., VENUE, '} ETC., ETC., ETC. Sect. 46.— Where by this or any other Act any person is or shall hereafter be made liable to punishment for forging or altering, or for offering, uttering, disposing of or putting off, knowing the same to be forged or altered, any instrument or writing designated in such Act by any special name or description, and such instrument or writing, however designated, is in law a will, testament, •odicil or testamentary writing, or a deed, bond or writing obligatory, or a bill of exchange or a promissory note for the payment of money, or an indorsement on, or assign- ment of a bill of exchange, or promissory note for the pay- ment of money, or an acceptance of a bilJ of exchange, or an undertaking, warrant, order, authority, or request for the payment of money, or an indorsement on or assign- ment of an undertaking, warr.ant, order, authority or request for the payment of money, within the true intent and meaning of this Act, in every such case, the person forging or altering such instrument or writing, or offer- ing, uttering, disposing of, or putting off such instrument or V7riting, knowing the same to be forged or altered, may be indicted as an offender against this Act, and punished accordingly. — 24-25 Vict., ch. 98, s. 39, Imp. Sect. 47. — Where the forging or altering any writing or matter whatsoever, or the offering, uttering, disposing PORQERT OF ANY INSTRTJMENl', ETC. I47 of or putting off any writing or matter whatsoever, know- ing the same to be forged or altered, is in this Act expressed to be an offence, if any person in Canada forges, or alters, or offers, utters, disposes of or puts off" knowmg the same to be forged or altered, any such writ- mg or matter, in whatever country or place out of Canada, whether under the Dominion of Her i^raiesty or not, such writing or matter may purport to be made or may have been made, and in whatever language the same or any part thereof, may be expressed, everv such T)erson and every person, aiding, abetting, or co "' celling such person, sliall be deemed to be an offender within the mean- mg of this Act, and shall be punishable there),y in the same manner as if the writing or matter had pumorted to be made, or had been made in Canada, and if any person m Canada forges, or alters, or offers, utters dis- poses of or puts off; knowing the same to be for^d or altered, any bill of exchange, or any promissory note for the payment of money, or any indorsement on or assign- ment of any biU of exchange or promissory note for the payment of money, or any acceptance of any bill of excliange, or any undertaking, warrant, order, authority, or request for the payment of money, or for the delivery or transfer of any goods or security, or any deed, bond, or writnig obligatory for the payment of money, whether such dee bank or body corporate, company or person >^. w. IMAGE EVALUATiON TEST TARGET (MT-3) 1.0 I.I 1.25 big jjjj^ 2.5 '■mi 2.2 2.0 U ill 1.6 Scioices Coiporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) C72-4503 WJ.. 168 THB OEIKINAL STATUTE LAW. this Act authorized, fine the offender, and require him to enter into his own recognizances, and to find sureties, both or either, for keeping the peace and being of good behaviour, and in all cases of felonies in this act mention- ed, the Court may, if it thinks fit, require the offender to enter into his own recognizances, and to find sureties, both or either, for keeping the peace, in addition to '^1:7 of the punishments by this Act authorized, provided that no person shall be imprisoned under this section for not finding sureties, for any period exceeding one year. — 24-25 Vict., ch. 98, s. 61, Imp. See remarks under sect. 74 of the Act respecting malicious injuries to property. Sect. 59. — This Act shall commence and take effect on the first day of January, one thousand, eight hundred and ieventy. FORGERY UNDER THE " ACT RESPECTING THE CUSTOMS." 31 VICT., CH. 6. Sect. 87. — ^If any person at any time forges or coun- terfeits any mark or brand to resemble any mark or brand provided or used for the purposes of this Act, or forges or counterfeits the impression of any such mark or brand, or sells or exposes to sale, or has in his custody or possession, any goods with a counterfeit mark or brand, knowing the same to be counterfeit, or uses or afiixes any such mark or brand to any other goods required to be stamped as aforesaid, other than those to which the same was originally affixed, such goods so falsely marked or branded shall be forfeited, and every such offender, and his aiders, abettors or assistants, shall, for every such offence, forfeit and pay the sum of two> hundred dollars • which penalty shall be recoverable in a summary way, FORGERY UNDER THE POSTAL SERyiCE ACT. 159 before any two Justices of the Peace in Canada, and in default of payment the party so offending shall be com- mitted to any of Her Majesty's Gaols in Canada, for a period not exceeding twelve months. Sect. 88.— If any person counterfeits or falsifies, or uses when so counterfeited or falsified, any paper or docu- ment required under this Act or for any purpose therein mentioned, whether written, printed, or otherwise, or by any false statement procures such document, or forges or counterfeits any certificate relating to any oath, affirma- mation, or declaration, hereby required or authorized, knowing the same to be so forged or counterfeited, such person shaU be guilty of a misdemeanor and being thereof convicted, shaU be liable to be punished accord! iKgly. FORGERY UNDER THE " ACT FOR THE REGULATION OF THE POSTAL SERVICE." 31 VICT., CH. 10. Sect. 17, par. 9.— To forge, counterfeit or imitate any Post Office Money Order, or advice of such Money Order or Post Office Savings Bank Depositor's Book, or author- ity of the Post Master General for repayment of a Post Office Savings Bank deposit or of any part thereof,- or any signature or writing in or upon any Post Office Mo- ney Order, Money Order advice,' Post Office Savings Bank Depositor's Book, or authority of Post Master Gen- eral for repayment of a Post Office Savings Bank depo- sit or of any part thereof with intent to defraud, shaU be a felony punishable by imprisonment in the Penitentiary for any term not less than two years and not exceeding seven years, and the accessories to any such offence shall be punishable accordingly. 160 THE CRIMINAL STATUTE LAW. FOEGERT UNDER THip *' ACT RESPECTING THE SHIPPING OP SEAME^." 36 VICT., CH. 129. Sect. 34. — Every plerson who fraudulently alters, assists in fraudulently altering, or procures to be fraudulently altered, or makes, or assists in making, or procures to be made, any false entry in, or delivers, assists in delivering, or procures to be delivered, a false copy of any agree- ment under this Act, shall for each such offence be guilty of a misdemeanor. Si Al fits |dimil |iw |o»jglidlitiaK |(it$. AN ACT RESPECTING OFFENCES AGAINST THE PERSON. 32-33 Vict., ch. 20. Whereas it is expedient to assimilate, amend and con- solidate the Statute Law of tlie several Provinces of Quebec, Ontario, Nova Scotia and New Brunswick, relat- ing to offences against the person, and to extend the same as so consolidated to all Canada : Therefore, Her Majesty, by and with the advice Mid consentof the Senate and House of Commons of Canada, enacts as follows: MURDER Sect. 1 — Whosoever is convicted of murder shall suffer death as a felon.— 24-25 Vict., ch. 100, s. 1, Imp. Sect. 2.— Upon every conviction for murder the Court shall pronounce sentence ot death, and the same may be carried into- execution, and all other proceedings upon such sentence and in respect thereof may be had and taken in the same manner, and the Court' before which the conviction takes place shaU have the same powers in all respects, as after a conviction for any other felony for which a prisoner may be sentenced to suffer death as a felon.— 24-25 Vict., ch. J.00, s. 2, Imp. 1G2 THE CRI..1INAL STATUTE LAW. Sect O.-Tu any indietuient for murder or manslaugh- ter, or for being an accessory to any murder or man- slftugliter, it shall not be necessary to set forth the manner in wliicli, or the means by which the death ot the deceased was caused, but it shall be sufficient in any indictment for murder to cluirge that the defendant did feloniouslv, wilfully, of iiis malice aforethought, kill and murder the deceased ; and it shall be sufficient in any indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased ; and it shall be sufficient in any indictment against any accessory to any murder or manslaughter to charge the principal with the murder or manslaughter, as the case may be, in the nan- ner hereinbefore specified, and then to charge the de- fendant as an accessory in the manner heretofore used and accustomed or hy Imv provided.— 2^-25 Vict., ch. 100, 8. 6, Imp. The words " or % Imv provided " are not in the Englisk Act. By sect. 12 of the Procedure Act of 18G9, it is enacted that no court of General or Quarter Sessions or Record- er's Court, nor any Court, but a Superior Court having criminal jurisdiction shall have power to try any treason, or any felony punishable with death, or any libel. Indictment The Jurors for Our Lady the Qr a, upon their oath present, that A. B., on at .in the County (or District) of . . . . did feloniously, wilfully, and of his malice aforethought, kill and murder one C. D., against the peace of Our Lady the Queen, lier crown and dignity. Upon this indictment the defendant may be acquitted of the murder, and found guilty of manslaughter.-Arch- bold, 620. OPPENOES AGAINST THE PERSON ACT. 163 The following rules of law apply to murder and man- jslaughter. 1. The law takes no cognizance of homicide unless death result from bodily injury, occasioned by some act or unlawful omission, or contradistinguished from death occasioned by any influence on the mind or by any disease arising from such influence. 2. The teims unlawful Ofmsmn" comprehend every case where any one being under any legal obligation to supply food, clothing or other aid or support, or to do any oLer let or make any other provision for the sustentation of life' or prevention of injuiy to life, is guilty of any breach of ^uty. 3. It 18 essential to homicide of which the law takes cognizance that the party die of the injury done within one year and a day thereafter : In the computa! ion of the year and the day from the time of the inju^ the whole of the day on which the act was done or if to be reckoned the first. 4. A child in the womb is not a subject of homicide in respect of any injury inflicted in wLT\!l"^r '' !^'^^™'« ^^ ^^™ ^^- = i" i he" - Iv iJ-l -^'^ ''^ ' ^''' '^^ ' ^^y -ft^r birth of ^ny bodily mjury inflicted upon such child, whilst it wound or hurt which hastens his death, it is murdro' *ther speces of homicide as the case may be And k has been ruled that though the stroke gL„ is not in "tself 80 mortal but that with good car* it mlhV fie cure , yet if the party die of thif wound wLTnfyear ^^e may be. And when a wound, not in itscif mortal, rl ''k 164 THE CRIMINAL STATUTI LAW. for want of proper applications or from neglect, turns to a gangrene or a fever, and that gangrene or fever is the immediate cause of the death of the party wounded, the party by whom the wound is given is guilty of murder or manslaughter, according to the circumstances. For though the fever or gangrene, and not the wound, be the immediate cause of death, yet the wound being the cause of the gangrene or fever is the immediate cause of the death, causa coMsati. So if one gives wounds to another, who neglects the cure of them or is disorderly, and doth not keep that rule which a person wounded should do» yet if he die, it is murder or manslaughter, according to the circumstances: because if the wounds had not been, the man had not died ; and therefore neglect or disorder in the person who received the wounds shall not excuse the person who gave them. — 1. Russell, 700. So if a man be wounded, and the wound become fatal from the refusal of the party to submit to a surgical ope- ration. — Reg. vs. Holland, 2 M. & Rob. 351 ; Reg. vs. Pym, 1 Cox 339 ; Reg. vs. Mclniyre, 2 Cox 379 ; Rex. vs. Martin, 5, C. & P. 128 ; R. vs. Webb, 1 M. &Rob. 405. But it is otherwise if death results not from the injury done, but from unskilful treatment, or other cause subsequent to the injury. — 4th Rep. Cr. L. Comrs., p. XXXII, 8th of march, 1839. Murder is the killing any person under the king's peace, with malice prepense or aforethought, either ex- press or implied by law. Of this description the malice prepense, malitia precogitata, is the chief characteristic, th^ grand criterion by which murder is to be distinguished from any other species of homicide, and it will therefore be necessary to inquire concerning the cases in which such malice has been held to exist. It should, however^ OPPENCfiS AGAINST THE PERSON ACT. 1^: be observed that when the law makes use of the term malice aforethought, as descriptive of the crime of murder, It IS not to be understood merely in the sense of a prin- ciple of malevolence to particulars, but as meaning that the fact has been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, and mabgnant spirit; a heari; regardless of social duty, and deliberately bent upon mischief. And in general any formed design of doing mischief may bo called malice. And therefore, not such killing only as proceeds from preme- ditated hatred or revenge against the person killed, but also, in many other cases, such killing as is accompanied with circumstances that show the heart to be perversely wicked is adjudged to be of vmlke prepense and conse- quently murder.— 1 Russell, 667. Malice may be either express or implied by law. Ex- press malice is, when one person kills another with a sedate deliberate mind and formed design ; such formed design being evidenced by external circumstances, dis- covering the inward intention ; as lying in wait, antece- dent menaces, former grudges, and concerted schemes to do the pari;y some bodily harm. And malice is implied by law from any dehberate cruel act committed by one person against another, however sudden ; thus, where a man kills another suddenly without any, or without a considerable provocation, the law implies malice ; for no person, unless of an abandoned heart, would be guilty of such an act upon a-slight or no apparent cause. So if a man wilfully poisons another : in such a deliberate act the law presumes malice, though no particular enmity be proved. And where one is killed in consequence of such a wilful act as shows the person by whom it is committed to be an enemy to all mankind, the law wiU infer a general malice from such depraved inclination to ;;i. 1C6 THE CRIMINAL STATUTE LA^V. m mischief. And it should bo observed as a general rule, that all homicide is presumed to be malicious, and of course amounting to murder, until the contrary appears, from circumstances of alleviation, excuse or justification : and that it is incumbent upon the prisoner to make out such circumstances to the satisfaction of the court and jury, unless they arise out of the evidence produced against him. It should also be remarked that, where the defence rests upon some violent provocation, it will not avail, however grievous such provocation may have been, if it appears that there was an interval of reflection, or a reasonable time for the blood to have cooled before the deadly purpose was effected. And provocation will be no answer to proof of express malice : so that, if, upon ,i provocation received, one party deliberately and advisedly denounce vengeance against the other, as by declaring that he will have his hlood, or the like, and afterwards carry his design into execution, he will be guilty of murder ; although the death happened so recently after the provocation as that the law might, apart from such evidence of express malice, have imputed the act to un- advised passion. But where fresh provocation intervenes between preconceived malice and the death, it ought clearly to appear that the killing was upon the antecedent malice ; for if there be an old quarrel between A and B, and they are reconciled again, and then upon & new and sudden falling out, A kills B, this is not murder. It is not to be presumed that the parties fought upon the old grudge, unless it appear from the whole circumstances of the fact; but if u 5on the circumstances it should appear that the reconciliation was but pretended or coun- terfeit, and that the hurt done was upon the score of the old malice, then such kiUir.g will be murder.—l Russell, 667. OFFENCES AOAINST THE PERSON ACT. On If a man, after receiving a blow, feigns a reconcilia- tion, and, after the lapse of a few minutes, invites a renewal of the aggression, with intent to use a deadly weapon and, on such renewal, uses such weapon with deadly effect, there is evidence of implied malice to sustain the charge of murder. But if, after such reconciliation, t^e aggressor renews the contest, or attempts to do so, and the other, having a deadly weapon about him, on such sudden renewal of the provocation, uses it without pre- vious intent to do so, there is evidence which may reduce the crime to manslaughter.— Reg. vs. Selton, 11 Cox 674. Mr. Justice Hannen in his charge to the jury in that cas^ said : " Now, murder is killing with malice aforethought ; but though the malice may be harboured for a long time for the gratification of a cherished revenge, it may, on the other hand, be generated in a man's mind according to the character of that mind, in a short space of time, an»r therefore it becomes the duty of the jury in each case to distinguish whether such motive had arisen in the mind of the prisoner, and whether it was for the gratification of such malice he committed the fatal act. But the law having regard to the infirmity of man's nature, admit* evidence of such provocation as is calculated to throw a man's mind off its balance, so as to show that he com- mitted the act while under the influence of temporary excitement, and thus to negative the malice which is of the essence of the crime, of murder. It must not be a light provocation, it must be a grave provocation ; and undoubtedly a blow is regarded by the law as such a grave provocation ; and supposing a deadly stroke inflict- ed promptly upon sach provocation, a jury would be ju,s- tified in regarding tb3 crime as reduced to manslaughter. But if such a period of time has elapsed as would be sufli- cient to enable the mind to recover its balance, and it 168 Tni CRIMINAL STATUTE LAW. appears tliat the fatal blow has been struck in the pur- suit of revenge, then the crime will be ntiurder." Verdict of manslaughter. >• In a case of death by stabbing, if thejury is of opinion that the wound was inflicted by the prisoner while smart- ing under a provocation so recent and so strong that he may be considered as not being at the moment the m.aster of his own understanding, the offence will be manslaugh- ter ; but if there has been, after provocation, sufficient time for the blood to cool, for reason to resume its seat, before the mortal wound was given, the offence will amount to murder ; and if the prisoner displays thought, contrivance and design in the mode of possessing him- self of the weapon, and in again replacing it immediately after the blow was struck, such exercise of contrivance and design denotes rather the presence of judgment and reason than of violent and ungovernable passion. — Rex vs. Maynard, 6 C. & P. 157. Where a man finds another in the act of adultery with his wife, and kills him or her in the first transport of passion, he is only guilty of manslaughter and that in the lowest degree ; for the provocation is grievous, such as the law reasonably concludes cannot be borne in the first transport of passion : and the Court in such cases will not inflict a severe punishment. — 1 Russell, 786. So it seems th»t if a father were to see a person in the act of committing an unnatural offence with his son and were instantly to kill him, it would only be manslaughter. —Reg. vs. Fisher, 8 C. & P- 182. But in the case of the most grievous provocation to which a man can be exposed, that of finding another in the act of adultery with his wife, though it would be but manslaughter if he should kill the adulterer in OFPBNOIB AOAINST THl PlDRIOM ACT. 1*9 the first transport of passion, yet if he kill him delibe- rately, and upon revenge, after the fact, and sufficient cooling time, it would undoubtedly be murder. For let it be observed that in all possible cases, deliberate homi- cide upon a principle of revenge is murder. No man under the protection of the law is to be the avenger of his own wrongs. If they are of a nature for which the laws of Society will give him an adequate remedy, thither he ought to resort, but be they of what nature soever, he ought to boar his lot with patience and remem- ber that vengeance belongeth only to the Most High. — Foster, 296. n So, in the case of a father seeing a person in the act of committing an unnatural offence with his son, and killing him instantly, this would be manslatighter, but if he only hears of it, and goes in search of the person, and meeting him strikes him with a stick, and after- wards stabs him with a knifd, and kills him, in point of law, it will be murder — Reg. vs. Fisher, 8 C. & P. 182. In this last case, the Court said : " Whether the blood has had time to cool or not is a question for the Court and not for the jury, but it is for the jury to find what length of time elapsed between the provocation received and the act done — 1 Russell, 725, but Greaves, note d, loc. cit., questions this dictum, and refers to Rex vs. Lynch, 5 C. & P. 324, and Rex vs. Majmard, supr^, where Ten- terden and Tindal left it to the Jury to say if the blood had had time to cool or not. ^If a blow without provocation is wilfully inflicted, the law infers that it was done with malice aforethought, and if death ensues the offender is guilty of murder, although the blow may have been given in a moment of passion. — Reg. vs. Noon, 6 Cox 137. 170 THE CRIMINAL STATUTE LAW. T. f| Even blows previously received will not extenuate- homicide upon deliberate malicfc and revenge, especially where it is to be collected from the circumstances that the provocation was sought for the purpose of colouring the revenge. — Rex vs. Mason, 1 East P. C. 239. In Reg. vs. Welsh, 11 Cox 336, Keating, J., in sum- ming up the case to the jury, said: "The prisoner is indicted for that he killed the deceased feloniously and with malice aforethought, that is to say, intentionally, without such provocation as would have excused, or such cause as might have justified the act. Malice afore- thought means mtention to kill. Whenever one person kills another intentionally, he does it with malice afore- thought ; in point of law, the intention signifies the malice It is for him to show that it was not so by showing sufficient provocation, which only reduces the crime to manslaughter, because it tends to negative the malice. But v/hen that provocate ; i do£3 not appear, the malice rf:,:*othought imphed in the intention remains. By the law of England therefore, all intentional homi- cide is prima facie murder. It rests with the party charged with and proved to have committed it to show, either by evidence adduced for the purpose, or upon the facts as they appear, that the homicide took place under such circi-mstances as to reduce the crime from murder to manslaughter. Homicide which would be pnma facie murder may be con^mitted under such circumstances of provocation afc> to make it manslaughter and show that it was not committed with malice aforethought. The question therefore is, first, whather there is evidence of any such pro* ocation as could reduce the crime from murder to manslaughter j and if there be any such evi- dence, then it is for the jury, whether it was such that they can attribute the act to the violence of passion OFFENCES AGAINST THE PERSON ACT. in naturally arising therefrom and likely to be aroused thereby in the breast of a reasonable man. The law therefore, is not, as was represented by the prisoner's counsel, that if a man commits the crime under the in- fluence of passion, it is mere manslaughter. The law is that there must exist such an amount of provocation aa passion would be excited by the circumstances in the mind of a reasonable man, ana so as to lead the jury to as- cribe the act to the influence of that passion. When the law says that it allows for the infirmity of human nature, it does not say that if a man without sufficient provoca- tion gives way to angry passion, and does not use his reason to control it,— the law does not say that an act of homicide intentionally committed under the influence of that passion is excused, or reduced to manslaughter. The law contemplates the case of p, reasonable man, and re- quires that the provocation shall be such as that such a man might naturally be induced, in the anger of the moment, to commit the act. Now, I am bound to say that I am unable to discover in the evidence in this case any provocation which would suffice, or approach to such as would suffice, to reduce the crime to manslaughter. It has been laid down that mere words or gestures will not be sufficient to reduce the offence, and at all events the law is clear that the provocation must be serious. I have already said that I can discover no proof of such provocation in the evidence. If you can discover it, you can give effect to it, but you are bound not to dj so unless satisfied that it was serious. What lam bound to tell you is that, in law it is necessary that there should have been serious provocation in order to reduce the crime to manslaughter, as for instance a blow, and a severe blow, something which might naturally cause an ordinary and 172 THE CRIMINAL STATUTE LAW. reasonably minded man to lose his self-control and com- mit such an act." Verdict : Guilty of murder. So also if a man be greatly provoked, as by pulling his nose or other great indignity, and immediately kills ihe aggressor, though he is not excusable se defendendo, since there is no absolute necessity for doing it to pre- serve himself; yet neither is it murder for there is no pre- vious malice : but it is manslaughter. But in this and €very other case of homicide upon provocation, if there be a sufficient cooling time for passion to subside and reason to interpose, and the person so provoked after- w^ards kill the other, this is deliberate revenge and not heat of blood, and accordingly amounts to murder. — 4 Blackstone, 191. A packer found a boy stealing vc^ood in his master's ground : he bound him to his horse's tail and beat him : the horse took fright and ran away, and dragged the boy on the ground so that he died. This was holden to be murder, for it was a deliberate act and savoured of cruelty. — Foster, 292. At page 632 ofArchbold, is cited R. vs. Rowley; a boy after fighting with another, ran home bleeding to his father, the father immediately took a staiF, ran three quarters of a mile, and beat the other boy who died of this blow. And this was holden to be manslaughter only. But Mr. Justice Foster, 294, says that he always thought Rowley's case a very extraordinary one. Though th^ general rule of law is that provocation by words will not reduce the crime of murder to that of manslaughter, special circumstances attending such a pro- vocation might be held to take the case out of the general rule. In Reg. vs. Rothwell, 12 Cox 147, Blackburn, J., in summing up, said : " A person who inflicted a danger- OFFENCES AGAINST THE PERSON ACT. 173 ous wound, that is to say a wound of such a nature as he must know to be dangerous, and death ensues, is guilty of murder ; but there may be such heat of blood and pro^ vocation as to reduce the crime to manslaughter. A blow is such a provocation as will reduce the crime of murder to that of manslaughter. Where, however, there are no blows, there must be a provocation equal to blows ; it must be at least as great as blows. For instance a man who discovers his wife in adultery, and thereupon kills the adulterer, is only guilty of manslaughter. As a general rule of law, no provocation of words will reduce the crime of murder to that of manslaughter, but under special circumstances there may be such a provocation of vords as will have that effect, for instance, if a husband, suddenly hearing from his wife that she had committed adultery, and he having no idea of such a thing before, were thereupon to kill his wife, it might be manslaughter. Now, in this case, words spoken by the deceased just previous to the blows inflicted by the prisoner were these : ^ Aye ; but I'll take no more for thee, for I will have no more children of thee : I have done it once, and I'll do it again,' meanmg adultery. Now, what you will have to consider is, would these words, which were spoken just previous to the blows, amount to such a provocation as would in an ordinary man, not in a man of violent or passionate disposition, provoke him in such a way as to justify him in striking her as the prisoner did." Verdict of manslaughter. In Sherwood's case, 1 C. & K. 556, Pollock, C. B., in summing up said : "It is true that no provocation by words only will reduce the crime of murder to that of manslaughter ; but it is equally true that every provo- cation by blows will not have this effect, particularly when, as in this case, the prisoner appears to have resent- ed the blow by using a weapon calculated to cause death. 174 THE CRIVIINAL STATUTE LAW. Still, however, if there be a provocation by blows, which would not of itself render the killing manslaughter, but it be accompanied by such provocation by means of words and gestures as would be calculated to produce a degree of exasperation equal to that which would be pro- duced by a violent blow, I am not prepared to say that the law will not regard these circumstances as reducing the crime to that of manslaughter only." When A, finding a trespasser upon his land, in the first transport of his passion, beat him and unluckily killed him, and it was holden to be manslaughter, it must be understood that he beat the trespasser, not with a mischievous intention, but merely to chastise him, and to deter him from a future commission of such a trespa^. For if A had knocked his brains out with a bill . hedge stake, or had killed him by an outrageous beating with an ordinary cudgel^ beyond the bounds of a sudden resentment, it would have been murder : these circum- stances being some of the genuine symptoms of the mala mens, the heart bent upon mischief, which enter into the true notion of maUce in the legal sense of the word. Moir having been greatly annoyed by persons trespassing upon his farm, repeatedly gave notice that he would shoot any one who did so, and at length discharged a pistol at a person who was trespassing, and wounded him in tlie thigh, which led to erysipelas, and the man died. Moir was convicted of murder and executed. — 1 Russell, 718. As there are very many nice distinctions upon this subject of malice prepense, express and implied, the fol- lowing additional quotations are given here. Malitia in its proper or legal sense, is different from that sense which it bears in common speech. In com- mon acceptation, it signifies a desire of revenge, or a settled anger against the particular person ; but this is OPFKNCKS AGAINST THE PERSON ACT. 115 not the legal sense, and Lord Holt, C. J., says : " Some have been led into mistakes by not well considering what the passion of malice is ; they have construed it to be a rancour of mind lodged in the person killing for some considerable time before the commission of the fact, which is a mistake, arising from the rot well distinguishing between hatred and malice. Envy, hatred and malice are three distinct passions of the mind. 1. Envy pro- perly is a repining or being grieved at the happiness and prosperity of another, Invidus alterius rebus macrescit opimis. 2. Hatred which is odium, is as Tully said, ■ira inveterata, a rancour fixed and settled in the mind of one towards another which admits of several '^«-"' — ~i.:_j --. icu -ita.„ 3 S...,JU riS Illugiixiyuuc \Jl A.H1U, Uf II hC pUrpOSC- ite THE CRIMINAL STATUTE LAW. ly employed a certain weapon or did certain acts from which the law implies malice, the oifence is murder when death follows within a year and a day, the same as though he intended to kill The actual intent is in many cir- cumstances an important element ; but there may be murder as well without as with a murderous mind, and especially the fatal result need not be predetermined. Thus the words ^'malice aforethought^^ have a technical legal meaning, differirig considerably from the popular idea of them.— Bishop, Stat. Cr. 467. Malice in its legal sense denotes a wrongful act done- intentionally without just cause or excuse. Per Little - dale, J., in McPherson vs. Daniels, 10 B. & C. 272, and approved of by Cresswell, J., in Reg. vs. Noon, 6 Cox 137. We must settle what is meant by the term malice. The legal import of this term differs from its acceptation in common conversation. It is not, as in ordinary speech, only an expression of hatred and ill-will to an individual, but means any wicked or mischievous intention of the mind. Thus, in the crime of murder which is always stated in the indictment to be committed with malice afore- thought, it is neither necessary in support of such indict- ment to show that the prisoner had any enmity to the de- ceased, nor would proof of absence of ill-will furnish the accused with any defence, when it is proved that the act of killing was intentional anddone without any justifiable cause. — Per Best, J., in Rex vs. Harvey, 2 B. & C. 268. The nature of implied malice is illustrated by the maxim " Culpa lata dolo cequipa/ratur.^^ When negligence reaches a certain point, it is the same as intentional wrong. "Every one must be taken io intend that which is the natural consequence of hi» OFFENCES A0AIN8T THE PERSON ACT. 177 action." If aay one acts in exactly the same way m he would do if he bore express malice to another, he cannot be allowed to say he does not. Wharton's Law lexicon . V. malice. ^ Malice aforethmgU, which makes a felonious killinir murder, may be practically defined to be not adml malice or actual aforethought, or any other particular actual state of the mmd, but any such combination of wrongful deed and mental culpabUity as judicial usage has determined to be sufficient to render that murder which else would be only manslaughter One proposition is plain - that an actual intent to take life is not a necessary ingre- dient in murder, any more than it is in manslaughter Where the prisoner fired a loaded pistol at a person on horseback, and the baU took effect on another, whose death it caused, the offence was held to be murder- though the motive for firing it was not to kill the man' but only to frighten his horse, and cause the horse to throw him.— 2 Bishop, Cr. L. 675. 676, 682. In Grey's case, the defendant, a blacksmith, had broken with a rod of iron, the skull of his servant, whom he did not mean to JciU, and this was held to be murder ; for, says the report, if a father, master, or school-master will cor- rect his child, servant or scholar, he must do it with such things as are fit for correction, and not with such instru- ments fis may probably kiU them.—Kelyng, SCO Stevens & Haynes, reprint, 99. A person driving a cart or other carriage happeneth to Kill. If he saw or had timely notice of the mischief likely to ensue, and yet drove on, it will be murder • for It was wilfully and dehberately done. If he might have seen the danger, but did not look before him, it wiU be manslaughter for want of due circumspection. But if the accident happened in such a manner that no w«nt of due care could be imputed to the driver, it wiK be acci- 178 THE ORIMINAL STATUTE LAW. 4Y' dental death, and the driver will be excused. — Foster, 263. Further, if there be an evil intent, though that intent extendeth not to death, it is murder. Thus if a man knowing that many people are in the street, throw a stone over a wall, intending only to frighten them or to give them a httle hurt, and thereupon one is killed, this is murder : for he had an ill intent though that intent extendeth not to death, and though he knew not the party slain.— 3 Instit. 57. Although the malice in murder is what is called " malice aforethought,^^ yet there is no particular period of time during which it is necessary it should have existed, or the prisoner should haveconteraplated the homicide. If, for ex- ample, the intent to kill or to do other great bodily harm is executed the instant it springs into the mind, the offence is as truly murder, as if it had dwelt there for a longer period. — 2 Bishop, Cr. L. 677. Where a person fires at another a fire-arm, knowing it to be loaded, and therefore intending either to kill or to do grievous bodily harm, if death ensues the crime is murder j and if in such case, the person who fires the weapon though he does not know that it is loaded has taken no care to ascertain, it is manslaughter.— Reg. vs. Campbell, 11 Cox 323. If an action, unlawful in itself, be done deliberately, and with intention of mischief or great bodily harm to particular individuals, or of mischief indiscriminately, fall where it may, and death ensue against or beside the original intention of the party, it will be murder. — I Russell, 739. If a man deliberately shoot at A and miss him', but kill B, this is murder. — 1 Hale, 438. So where A gave a poisoned apple to his wife, intending to poison her, and the wife, ignorant of the matter, gave it to a child who took it and died, this was held murder in A, OFriNOlS AOAWeT TH» MESOM ACT. IJJ auSh*"^' *"•?"? ^"'''"' '* *''' «'»«.»de«TOured to di,. loc cit ^™* "■* *PP'' '" "■' ohiW-Hale, So if a person give medicine to a woman to procure an abort,on by which the woman is killed, the Lt was Wd clearly to be marder, for, though the'death of th^ woman was not intended, the act is of a nature delibeiute and mucous, and necessarily attended with great dan- c'ss^Im!^" "" "''°°' " """ P^eti^d-l East P. Whenever one does an act with the design of commit- life, yet. If the life of another is accidentaUy taken, his offence is murder. So if a man set fire to a house, whereby a person in it is burned to death, he is guilt; of murder, even if he had no idea that any one was or was likely to be there.-l Euesell, 741. i„^" river to avoid the violence of the prisoner.- 1 Russell, 676 ; Res vs Pitts, Car. & M. 284. ; -"tg. ;s. If two persons fight and one overpowers the other and knocks him down, and puts a rope round his neck, and s^trangles him, this will bo murder.- Rex vs. Shaw, 6 C If a person being in possession of a deadly weapon ' enters mto a contest with another intending at the time to avail himself of it, and in the course of the con- test actuaUy uses it, and kills the other, it will be murder, but If he did not intend to use it when he began the contest but used it in the heat of passion, in consequence of an attack made upon him, it will be manslaughter. If ho uses It to protect his own life or to protect himself from such serious bodily harm as^, would give him a reasonable apprehension that his life was in immediate danger, hav- ing no other means of defence, and no means of escape, and retreating as far as he can, it will be justifiable homicide. — Reg. vs. Smith, S C. & P. 160. A person cannot be indicted for murder in procurini? another to be executed by falsely charging him with! rime ofwhichhe was innocent.-R. vs. Macdaniel, 1 Leach, 44 Sed quaere. ? 4 Blackstone, 196 ; 2d Report, 1046, Lr. Law Comm. 45. ^ ' Child murder.- To justify a conviction on an indict- ment charging a woman witli the wilful murder of a cliiid ofwh,chshewas delivered and which was born alive, the juiy must be satisfied affirmatively that the whole 182 Tni OBIMINAL STATUTl LAW. It body waa brought alive into the world ; and it is not suffi- cient that the child has breathed in the progress of the birth.— R. vs. Poulton, 6 C. & P. 329 ; R. vs. Enoch, 5 C. & P. 639. — If a child has been wholly produced from the body of its mother, and she wilfully and of malice aforethought, strangles it whili it is alive, and has an independent circulation, this is murder, although the child is still attached to its mother by the umbilical cord, Reg. vs. Trilloe, 2 Mood. 260. — A prisoner was charged with the murder of her new-born child, by cut- ting off its head : held that, in order to justify a convic- tion for murder, the jury must be satisfied that the entire child was actually bom into the world in a living state ; and that the fact of its having breathed is not a decisive proof that it was born ali' , as it may hjive breathed and yet died before birth.—: /S. Sellis, 7 C. &. P. 850. An infant in its mother's womb is not considered as a person who can be killed within the description of mur- der or manslaughter. The rule is thus : it must be born, every part of it must have come from the mother, before the killing of it vsrill constitute a felonious homicide. — Rex vs, Wright, 9 C. & P. 754 ; R. vs. Blain, 6 C. & P. 349 ; 1 Russell, 670; 2 Bishop, Cr. L. 632.— Giving a child, whilst in the act of being born, a mortal wound in the head, as soon as the head appears, and before the child has breathed, will, if the child is afterwards bom alive and dies thereof, and there is malice, be murder, but there is not malice, manslaughter.- R. vs. Senior, 1 Mori C. 346 ; 1 Lewin, C. C. 183. Murder by poisoning. — Of all the forms of death, by which Lumun nature may be overcome, the most detes- table is tha^ c/ inoison: because it can, of all others, be the least pr, vct^ted eiilier by manhood or forethought. — 3 OFFINOBB AQAINST THB PKESON ACT. 183 Inst. 48.— He that wilfully gives poison to another, that hath provoked him or not, is guilty of wilful murder ; the reason is because it is an u t of deliberation odious in law, and presumes malice. — 1 Hale. 466. — A prisoner was indicted for the murder of her infant child by poison. She purchased a bottle of laudanum, and directed the person who had the care of the child to give it a teaspotn- ful every night. That person did not do so, but put the buLi^e on the mantel-piece, where another little child found 10, and gave part of the contents to the prisoner'* child who soon after died : held, that the administering of the laudanum by the child was as much, in point of law, an administering by the prisoner, as if she herself had actually administered it with her own hand.— Reg. vs. Michael, 2 Mood. 120.— On a trial for murder by poi- soning, statements made by the deceased in a conversation shortly before the time at which the poison is supposed to have been administered, are evidence to prove the state of his health at that time. Reg. vs. Johnston, 2 C. & K. 354. — On an indictment for the murder of A, evidence is not admissible that three others in the same family died of similar poieon, and that the prisoner was at all the deaths, and administered something to two of his patients. —Reg. v8.Win8low,8 Cox 397.— Onan indictment against a woman for the murder of her husband by arsenic, in September, evidence was tendered, on behalf of the prose- cution, of arsenic having been taken by her two sons, one of whom died in December and the other in March subse- quently, and also, by a third son, who took arsenic in April following but did not die. Proof was given of a similarity of symptoms in the four cases. Evidence was also ten- dered that she lived in the same house with her husband and sons, and that slie prepared their tea, cooked their victuals, and distributed them to the four parties : held 184 TH' CRIMINAL STATUTE LAW. that this evidence was adr>.i8sible for the purpose of prov- ing, first, that the deceased husband actually died of ar- senic I secondly, that his death was n»t accidental ; and that it was not inadmissible by reason of its tendency to prove or create a suspicion of a subsequent felony. — lieg, vs. Geering, 18 L. J. M. C. 215.— Upon the trial of a husband and wife for the murder of the mother of the former by administering arsenic to her, for the purpose of rebutting the inference that the arsenic had been taken by accident, evidence was admitted that the male priso- ner's first wife had been poisoned nine months previously ; that the woman who waited upon her, and occasionally tasted her food, shewed S3rmptoms of having taken poi- son ; that the food was always prepared by the female prisoner ; and that the two prisoners, the only other per- sons in the house, were not affected with any symptoms of poison.— Reg. vs. Garner, 4 F, & F. 346. And Archi- bald, J., after consulting Pollock, C. B., in Reg. vs. Cotton, March, 1873, 12 Cox 400, held, that where a prisoner was charged with the murder of her child by poison, and the defence was that its death resulted from an accidental taking of such poison, evidence to prove that two other children of hers and a lodger in her house had died previous to the present charge, after having been attended by her, was admissible. MURDER BY KILLING OFFICERS OF JUSTICE. Ministers of justice, as bailiffs, constables, watchmen, etc., (either civil or criminal justice) while in the execu- tion of their offices, are under the pecuhar protection of the law; a protection founded in wisdom and equity, and in every principle of political justice ; for without it the pubhc tranquiUity cannot possibly be maintained, or pri- "#5 MURDEa BY KILLINa OFFICBttS OP JUSTICE. 185 vate property secured. For these reasons, the killing of officers so employed has been deemed murder of malice prepense is being an outrage wilfully committed in de- fiance of the justice of the kingdom. The law extends the same protection to any person acting in aid of an officer of justice, whether specially caUed thereunto or not. And a pubhc officer is to be considered as acting strictly in discharge of hk duty, not only while executing the process intrusted to him, but likewise while he is coming to perform, and returning from the perfonnance of his duty. He is under the protection of the law eundc, morando et redeundo. And therefore, if coming to perform his office he meets with great opposition and retires, and in the retreat is killed, this will be murder. Upon the same principles, if he meets with opposition by the way, and is killed before he comes to the place (such opposition being intended to prevent his performing his duty) this will also be murder. — Roscoe, 697; 1 Russell, 732. But the defendant must be proved to have known that the deceased was a public officer, and in the legal discharge, of his duty as such ; for if he had no knowledge of the officer's authority or business, the killing will be man- slaughter only. In order to render the killing of an officer of justice, whether he is authorized in right of his office or by war- rant, amount to murder, upon his interference with an affi-ay, it is necessary that he should have given some notification of his being an officcn-, and of the intent with which he interfered. — Rex vs. Gordon, 1 East, P. C. 315, 262. Where a constable interferes in an affi'ay to keep the peace, and is killed, such of the persons concerned in kill- ing him as knew him to be a constable are guilty of 186 THE CKIMINAL STATUTE LAW. murder, and such as did not know it of manslaughter only.— 1 Hale, 446. But it hath been adjudged that if a justice of the peace, constable or watchman, or even a private person, be killed in endeavouring to part those whom he sees fighting, the person by whom he is killed is guilty of murder; yet it hath been resolved, that if the third person slain in such a sudden affray do not give notice for what purpose he comes, by commanding the parties m the king's name to keep the peace, or otherwise manifestly shewing his intention to be not to take part in the quarrel but to appease it, he who kills him is guilty of manslaughter only, for he might suspect that he came to side with his adversary ; but if the person interposing in such case be an officer within his proper district, and known, or but generally acknowledged to bear the office heassumeth, the law wiU presume that the party kilhng had due notice of his intent, especially if it be in the day- tune.— 1 Hawkins, 101. Killing an officer wiU amount to murder, though he had no warrant, and was not present when any felony was committed, and takes the party upon a charge only, and though such charge does not in terms specify aU the par- ticulars necessary to constitute the felony.— R. vs Ford Russ & Ry. 329. ' Killing an officer who attempts to arrest a man will be murder, though the officer had no warrant, and though the man has done nothing for which he was liable to be arrested, if the officer has a charge against him for felony, and the man knows the individual to be an officer, though the officer does not notify to him that he has such a charge —Rex vs. Woolmer, 1 Mood. 334. So, where a man seen attempting to commit a felony, on fresh pursuit kills his pursuer, it is as much murder as MURDER.--KILLINO BY OFFICERS OF JUSTICE. 187 if the party were kiUed while attempting to take the de- fendaiit in the act, for any person, whether a peace officer or not, has power to arrest a person attempting to com- TMood^m committing a felony.-R. vs. Howarth, If a person is playing music in a pubHc thoroughfare, and thereby coUects together a crowd of people, a poUce ' man 18 justified in desiring him to go on, and inlaying his hand on hmi and slightly pushing him, if it is only done to Tive effect to his remonstrance ; and if the person, on so small a provocation, strikes the policeman with a dangerous weapon and kills him, it wiDbe murder, but otherwise If the policeman gives him a blow and knocks liim down.— Rex vs. Hagan, 8 C. & P. 167. MTJEDER.~.KILLING BY OFFICERS OF JUSTICE. Where an officer of justice in endeavouring to execute his duty kills a man, this is justifiable homicide, or manslaughter, or murder, according to circumstances. Where an officer of justice is resisted in the legal execu- tionofhisduty he may repel force by force; and if in domg so, he kills the party resisting him, it is justifiable homicide ; and this in civil as weU as in criminal cases.- 1 Hale, 494 ; 2 Hale, 118. And the same as to persons acting m aid of such officer. Thus if a peace officer iiave a legal warrant against B for felony, or if B stand indicted for felony, in these cases, if B resist and m the struggle be killed by the officer, .r any person acting in aid of him, the killing is justi- fiable. Foster, 318. So, if a private person attempt to arrest one who commits a felony in his presence or nterferes to suppress an affray, and be resisted, and kill the person resisting, this is also justifiable homicide.-l Hale, 481, 484. Still there must be an apparent neces- 188 THE CRIMINAL STATUTE LAW. sity for the killing : for if the officer were to kill after the resisting had ceased, or if there were no reasonable necessity for the violence used upon the part of the officer, the killing would be manslaughter at the least. Also, in order to justify an officer or private person in these cases, it is necessary that they should, at the time, be in the act of legally executing a duty imposed upom them by law, and under such circumstances that, if the officer or private person were killed, it would have been murder ; for if the circumstances of the case were euch that it would have been manslaughter only to kiU the officer or private person, it will be manslaughter, at least, in the officer or private person to kill the party resisting. — Fost. 318 ; I Hale, 490. If the prisoners in a gaol, or going to a gaol, assault the gaolev or officer, and he, in his defence, kill any of them, it is justifiable, for the sake of preventing an escape. — 1 Hale, 496. Where an officer or private person, having legal author- ity to apprehend a man, attempts to do, so and the man, instead of resisting, flies, or resists and then flies, and is killed by the officer or private person in the pursuit, if the offence with which the man was charged were a treason or a felony, or a dangerous wound given, and he could not otherwise be apprehended, the homicide is justifiable ; but if charged with a breach of the peace or other misdemeanor merely, or if the arrest were intended in a civil suit, or if a press-gang kill a seaman or othe person flying from them, the killing in these cases would be murder, unless, indeed, the homicide were occasioned by means not likely or intended to kill, such as tripping up his heels, giving him a blow of an ordinary cudgel, or other weapon not likely to kill, or the like : in which case, the homicide, at most, would be manslaughter only. In case of a riot or rebellious assembly, the offic ers DUELLING. 189 endeavouring to disperse the mob are justifiable in killing them, both at common law, and by the Riot Act, if the riot cannot otherwise be suppressed.— Archbold, 646. . DUELLING. Where words of reproach or other sudden provocations have led to blows and mutual combat, and death has ensued, the important enquiry will be, whether the occasion was altogether sudden and not the result of preconceived anger or malice j for in no case will tlie killing, though in mutual combat, admit of alleviation, if the fighting were upon a malice. Thus a party killing another in a deliberate duel is guilty of murder.— 1 Rus. 727. When, upon a previous agreement, and after there has been time for the blood to cool, two persons meet with deadly weapons ard one of them is killed, the party who occasions the death is guilty of murder, and the seconds also are equally guilty ; and with respect to others shewn to be present, the question is, did they give their aid and assistance by their countenance and encour- agement of the principals in the contest : mere presence will not be sufficient ; but if they sustain the principals either by advice or assistance, or go to the ground for the purpose of encouraging and forwarding the unlawful conflict, although they do not say or do anothing, yet, if they are present assisting and encouraging by their pre- sence at the moment when tl ^ fatal shot is fired, they are, in law, guilty of the crime of murder.— Reg. vs. Young, 8 C. & P. 644. Where two persons go out to fight a deliberate duel and death ensues, all persons who are present, encourag- ing and promoting that death, will be guilty of murder. And the person who acted as the second of the deceased 190 THE CRIMINAL STATUTE LAW. person in such a duel may oe convicted of murder, on an indictment charging him with being present, aiding and abetting the person by whose act the death of his principal was occasioned. — Reg. vs. Cuddy, 1 C. & K. 210. Verdict. — General Remarks. — By sect. 49 of the Pro- cedure Act of 1869, if upon the trial of any person charged with any felony or misdemeanor, it appears to the jury upon the evidence that the defendant did not complete the offence charged, but that he was guilty only of an attempt to commit the same, such person shaU not by reason thereof be entitled to be acquitted, but the jury shall be at Hberty to return as thoir verdict that the defendant is not guilty of the felony or misdemeanor charged but is guilty of an attempt to commit the same ; and thereupon, such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for attempting to commit the particular felony or misdemeanor charged in the indictment. — Same in England, 14-15 Vict., ch. 100, s. 9. 1 Russell, 773. And by sect. 51 of the Procedure Act of 1869, on the trial of any person for any felony whatever, where the crime charged includes an assault against the person, al- though an assault be not charged in terms, the jury may acquit of the felony, and find a verdict of guilty of assault against the person indicted, if the evidence war- rants such finding, and the person so convicted shall be liable to be imprisoned in the Penitentiary for any term not exceeding five years and not less than two years, or to be imprisoned in any other gaol or place of confine- ment for any term less than two years. — In England, a similar clause, 7 Will. 4 & 1 Vict., ch. 85, sect. 11, lias been repealed. SELF-MURDER. Afelo de se, or f^jlon of himself, is a person who being 8XL7-MUBDBa. 191 of sound mind and of the age of discretion, voluntarily kiUeth himself. 3 Inst. 54. If a man give himself a wound, intending to hefelo de se, and dieth not within a year and a day after the wound he is not f eh de se. — Ibid. ' The following passages from Hale and Hawkins may be usefully inserted here : " It is not every melancholy or hypochondriacal dis- temper that denominates a man non compos, for there are few, who commit this offence, but are under such infirmi- ties, but it must be such an alienation of mind that ren- ders tliem to be madmen or frantic, or destitute of the use of reason : a lunatic killing himself in the fit of 'nnacy is not felo de se ; otherwise it is, if it be at another time." —1 Hale, 412. " But here, I cannot but take notice of a strange notion which has unaccountably prevailed of late, that every one who kiUs himself must be non compos of course : for it is said to be impossible that a man in his senses should do a thing so contrary to nature and all sense and reason. If this argument be good, self-murder can be no crime, for a madman can be guilty of none : but it is wonderful that the repugnancy to nature and reason, which is the highest aggravation of this offence, should be thought to make it impossible to be any crime at all, which cannot but be the necessary consequence of this position, that none but a madman can be guilty of it. May it not, with as much reusou^ be argued that the murder of a child or of a parent is against nature and reason, and consequently that no man in his senses can commit it." — 1 Hawkins, ch. 9, s. 2. If one encourages another to commit a suicide and is present abetting him while he does so, such person is guilty 192 THE CRIMINAL STATUTE LAW. 'Hi of murder as a principal, and if two encourage each other to murder themselves, and one does so, the other being present, but failing in the attempt on himself, the latter is a principal in the murder of the first.— R. vs. Dyson, R. & R. 523 ; R. vs. Alison, 8 C. & P. 418. An attempt to commit suicide is not an attempt to commit murder, within 32-33 Vict., ch. 20, but still remains a common law misdemeanor.— Rqg. vs. Burgess, Leigh & Cave, 258. The finding offelo dese by the Coroner's jury, carries a forfeiture of goods and chattels —2 Burns' Justice, 1340. An attempt to commit suicide is a misdemeanor at common law.— Reg. vs. Doody, 6 Cox, 463. See Reg. vs. Maloney, 9 Coxj 6. m MANSLAUGHTER. Sect. 5.— Whosoever is convicted of manslaughter shall be liable to be imprisoned in the Penitentiary for life, or for any tenn not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, or to pay such fine as the court may award, in addition to or without any such other discretionary punishment as aforesaid.— 24-25 Vict., ch. 100, s. 5, Imp. ^eepost, as to section 74 of the Railway Act of 1868. Sect. 6.— In any indictment for murder or manslaughter, or for being an accessory to any murder or manslaughter, it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient in any indictment for murder to charge that the defendant did feloniously, wil- fully, of his malice aforethought, kill and murder the de- ceased ; and it shall be sufficient in any indictment for man- MANSLAUGHTER. jg^ slaughter to charge that the defendant did feloniously kill and alay thedeceased, and it shaU besufficient in any ndi^ jnen „ga,„,t any accessory to any murder or mansLg ter to charge the pnsoner with the n>urder or manslaughter as he case may be, in the manner hereinbefore spefified and then to charge the defendant as an aceessory^Tn the manner heretofore used and accustomed .. by W^J.^ —24-36 Vict., ch. 100, B. 6, Imp. Strute!"'"''"''^'"'"-''"'"^"''"''' ™* '" th" English I^.„nent The jurors that A, "'.'.":' ''"' "™ 'sainst tl^'pet f^lr"^ ^t T"'"'''' """™ •'■''""«»• ««««— K. vs Chatburn 1 Mood. 403. Nor is it necessaiy where the manskughteransesfrom an act of omission, that su h Manslaughter is principally distinguishable from mur- < r .„ t,„s that though the act which occasions the d- • - unlawful, or likely to ho attended with bodily -. .^the malice, either express or implied, which n ml H?'"!,. """''^"■' '' P''^™"""' '» be wanting .nfimnty of human nature.-Roscoe, 638, Foster, 29o! In this species of homicide, malice, which is the main .ngredient and characteristic of murd'er, is cons dered t bewantmg; and though manslaughter' is in its dl e felon,o„,, yet ,t is imputed by the benignity of theW irrf ""'''• *V"''™'*^ whichf^th'ough in th! Mtv o? th!T """""'■' ■' """''^"'^ '' '"^-J™* t» the frailty of the human constitution. I„ order to make an 194 THE CRIMINAL STATUTE LAW. abettor to a manslaughter a principal in the felony, he must be present aiding and abetting the fact committed. It was formerly considered that there could not be any accessories before the fact in any case of manslaughter, because it was presumed to be altogether sudden, and without premeditation. And it was laid down that if the indictment be for murder against A, and that B and C were counselling and abetting as accessories before only (and not as present aiding and abetting, for such are principals), if A be found guilty only of manslaughter, and acquitted of murder, the accessories before will be thereby discharged. But the position ought to be limited to these cases where the killing is sudden and unpreme- ditated ; for there are cases of manslaughter where there may be accessories. Thus a man may be such an acces- sory by purchasing poison for a pregnant woman to take in order to procure abortion, and which she takes and thereby causes her death. — Reg. vs. Gaylor, Dears. & Bell, 288. If therefore upon an indictment against the principal and an accessory after the fact for murder, the offence of the principal be reduced to manslaughter, the accessory may be convicted as accessory to the man- slaughter. — 1 Russell, 783. Manslaughter is homicide not under the influence of malice.— R. vs. Taylor, 2 Lewin, 215. The several instances of manslaughter may be considered in the follov/ing order. 1. Cases of provocation. 2. Cases of mutual combat. 3. Cases of resistance to officers of justice, to persons acting in their aid, and to private per- sons lawfully interfering to apprehend felons, or to pre- vent a breach of tne peace. 4. Cases where the killing takes place in the prosecution of some criminal unlawful or wanton act. 5. Cases where the killing takes place . in consequence of some lawful act beinsr criminallv or CASES OF PROVOCATION. 195 improperly perfonned, or of some act performed without lawful authonty.-I. Kuss. loc. cit. wimouc * CASES OP PROVOCATION. Whenever death ensues from the sadden transport of passion or heat of blood upon a reasonable pr„voc2n and without malice, it is considered as solely imputable to human mfinnity : and the offence wiU be manlugt ter. It should be remembered that the person sheltering hmiself under this plea of provocation must make ouf CourT ir ° ''"°"''*'°" *» the satisfaction of the Coi^t and jury, unless they arise out of the evidence produced against him ; as the presumption of hw deeZ ^ homicide to be malicious, until the contrary is provl The most grievous »<«•* of reproach, contemptuol and msulting actions or gestures, or trespasses against lands or goods will not free the party killing from L guilt of murder, if upon such provocation a deadly weapon wa To^ vT ' "' *" T**"""" *» ''"'' <" *» ^» 'o^e great bodily hann, was otherwise manifested. But if no such weapon be used, or intention manifested, and the party so rZk T *'" "*"" " """ "^ *^« "" - ^tri'o with a stick or other weapon not likely to kiU, and kill hua unluckily and against his intention, it wiU be only man" slaughter. Where an assault is made with vioWordr. c^istances of indignity upon a man's person, as by puU- a.Lr I ""'"' ""'' *^« P"^y ^ »««"'lt«'*«<' immediately, and the aggressor killed in the heat of blood, the W ^rtrrf "^i^Fovocation. SoifAbepal^;; dong the street, and B meeting him (there being conven- lent clistanofi hfi+w7oon \ — j xu _ iiv . , .° 196 THB CRIMINAL STATUTE LAW. him aiid justle him, and thereupon A kill B, it is said that Buch justHng would amount to provocation which would make the killing only manslaughter. And again it appears to have been considered that where A riding on the road, B whipped the horse of A out of the track, and then A alighted and killed B, it was only manslaughter. But in the two last cases, it should seem that the first aggression must have been accompan- ied with circumstancesof great violence or insolence ; for it is not every trivial provocation which, in point of law, amounts to an assault, that will of course reduce the crime of the party killing to manslaughter. Even a blow will not be considered as sufficient provocation to extenuate in cases where the revenge is disproportioned to the injury, and outrageous and barbarous in its nature ; but where the blow which gave the provocation has been so violent as reasonably to have caused a sudden transport of pas- sion and heat of blood, the killing which ensued has been regarded as the consequence of human infirmity, and entitled to lenient consideration. — 1 Russ. 784. For cases on this defence of provocation, see under the head Murder. In Reg. vs. Fisher, 8 C. & P. 182, it was ruled that whether the blood has had time to cool or not is a ques- tion for the Court and not for the jury, but it is for the jury to find what length of time elapsed between the pro- vocation received, and the act done.— But in Rex vs. Lynch, 6 C. & P. 324 ; R. vs. Hayward, 6 C. & P. 127 j Reg. vs. Eagle, 2 F. & F. 827, the question, whether or not the blow was struck before the blood had time to cool and in the heat of passion, was left to the jury : and this seems now settled to be the law on the question. The English commissioners, 4th Report, p. XXV, are also of opinion that " the law may pronounce whether OASES OF MDTDAL OOMDAT. I97 any extenuating occasion of provocation existed, but it is for the jury to decide whether the offender acted solely on that provocation, or was guilty of a malicious exce^i in jespect of the instrument used or the manner of using Cases of mutual comhat.^Vfher^, upon words of re- prouch or any other sudden provocation, the parties come to blows, and a combat ensues, no undue advantage being sought or taken on either side, if death happen under such circumstances, the offence of the party kill- 1 ng wiU amount only to manslaughter. If A has formed a deliberate design to kiU B, and after this they meet and have a quarrel and many blows pass, and A kiUs B his w,l be murder, if the jury is of opinion thatth^ death was m consequence of previous malice, and not of he sudden provocation.- Reg. vs. Kirkham 8 C. & P. 115. If after an exchange of blows on equal terms, one of the parties on a sudden and without any such iliten- tion at the commencement of the affray, snatches up a deadly weapon and kills the other party with it, such killing will only amount to manslaughter : but it will amoun to murder if he placed the weapon, before they began to fight, so that he might use it during the affray -Russell, 731 ,. R. vs. Kessel, 1 C. & P. I37 5 rT Whiteley, 1 Lewin, 173. ' * Where there had been mutual blows, and then, upon ^ne of the parties being pushed down on the ground the ether stamped upon his stomach and beUy with great force, and thereby killed him, it was considered onn be manslaughter.-Rex vs. Ayes, Russ. & Ry. I66. If two persons be fighting, and another interfere with hP rA^."^ ^^''^^ ^""^ ^" ""* «^«"^fy «"«h intent, and slaught ^ '"' "^ '''' ^omUi.nU, this is but man- 198 THE CRIMINAL STATUTE LAW. A sparring match with gloves fairly conducted in a private room is not unlawful, and therefore death caused by an injury received during such a match does not amount to manslaughter. — K. vs. Young, 10 Cox, 371. Cases of resistance to officers of justice ; to persons act- ing in their aid, and to private persons lawfully interfering to apprehend felons or to prevent a breach of the peace. — See under the head murder; sub- title murder hyUUing offi- cers of justice. Attempting illegally to arresu a man is suffi- cient to reduce killing the person making the attempt to manslaughter, though the arrest was not actually made^ and though the prisoner had armed himself with a deadly weapon to resist such attempt, if the prisoner was in such a situation that he could not have escaped from the arrest; and it is not necessary that he should have given warning to the person attempting to arrest him before he struck the blow.— R. vs. Thompson, 1 Moo. 80. If a constable takes a man without warrant upon a charge which gives him no authority to do so, and the prisoner runs away and is pursued by J. S. who was with the constable at the time, and charged by him to assist, and the man kills J. S. to prevent his retaking him, it will not be murder, but manslaughter only ; because if the original arrest was illegal, the recaption would have been so likewise. — R. vs. Curvan, 1 Moo. 132. Where a common soldier stabbed a sergeant in the same regiment who had arrested him for some alleged misdemeanor, held, that as the articles of war were not produced, by which the arrest might have been justified, it was only manslaughter as no authority appeared for the arrest.— R. vs. Withers, 1 East. P. C. 295. A warrant leaving a blank for the christian name of the person to be apprehended, and giving no reason for CASES OP KILLING OFFICERS OF JUSTICE. 199 omitting it but describing him only as the son of J. S., tained a large ouan itv ^f ''^ .? °"'^"" ^"'='> «»"- of the priso„er.-,i4. vs. sS 0^.^'!:" *cal man who administer, i to his mot,!! 7 disease nrussie acid of whi.h 1 , ''"' "•""« died, isjotgniit;:^/ :i:,X\^;^fri — ^^^^^^ With .^^To^rn' g'*;r,r;;'^^^ ^trr a:rrk:::it^^^^ McLeod, 12 Cox, 234 ' * "^^ * *^- ^56 ; Reg. vs. 212 THE CRIMINAL STATUTE LAW. soner being grossly ignorant of the art which he pro- fessed, and unable to deliver the woman with safety to herself and the child, as might have been done by a per- son of ordinary skill, broke and compressed the skull of the infant, and thereby occasioned its death immediately after it was born ; the prisoner was found guilty ; it was submitted that the child being en ventre de sa mkre when the wound was given, the prisoner could not be guilty of manslaughter ; but, upon a case reserved, the judges were unanimously of opinion that the conviction was right.— R. vs. Senior, 1 Mood. 846. NEQLECt OP NATURAL DUTIES. Lastly, there are certain natural and moral duties towards others, which if a person neglect without mali- cious intention, and death ensue, he will be guilty of manslaughter. Of this nature is the duty of a parent to supply a child with proper food. When a child is very young, and not weaned, the mother is criminally responsible, if the death arose from her not suckling it, when she was capable of doing so.— R. vs. Edwards, 8 C. & P. 611.— But if the child be older, the omission to provide food is the omission of the husband, and the crime of the wife can only be the omitting to deliver the food to the child, after the husband has provided it.— R. vs. Saunders, 7 C. & P. 277. A master is not bound by the common law to find medical advice for his servant ; but the case is different with respect to an apprentice, for a master is bound dur- ing the illness of his apprentice to find him with proper medicines, and if he die for want of them, it is man- slaughter in the master.— R. vs. Smith, 8 C. & P. 153. Where a persoii undertakes to proride necessanes lOr a NEOIIOT OP NATOTAL DOTIES. Jig person Who U so aged and infirm that he is incanabl. nf at force that the law of ho- micide roquir«8 codllication more than any other, because it is not to bo foun Indictment for administering poison with intent to mur- ^^•— The jurors for Our Lady the Queen upon their oath present, that J. S., on feloniously and unlawfully did administer to one A. B., {administer or cause to be administered to or to be taken by any person) a large quantity, to wit, two drachms of a certain deadly poison called white arsenic, {any poison w other destructive thing) with intent thereby then feloniously, wilfully, and of his malice aforethought the said A. B.' to kill and murder, against the form of the Statute in such case made and provided, and against the peace of Our Lady the Queen, her crown and dignity. {Add counts stating that the defendant « did cause to be admi- nistered to" and " did coMse to be taken by" a large quanti- ty, etc., etc., and if the description of poison be doubtful, add counts describing it in different ways; and one count siaivng it to be "a certain destructive thing to the jurors aforesaid unknown.'") — Archbold, C49. The indictment must allege the thing administered to be poisonous or destructive j and therefore an indictment 228 T»« tllUMlNAIi HTATIITM liico, it Kooms tlmt tluN ix an adminlMtoring ; and, at all ovcntN, it i« iMUising tho poison to bo takotu In Itox vs. Ilnrloy, 4 0. A P. a05>, it appt>aiH»«l tliat a otiVoo pot, which wjis pi\>vod to contain arsenic, mivcd with collcc, had boon placed by (lie prisoner by llu» sidt^ of (ho grate: tlio pn>secn(rix was going to pnt ont some tea, bnt «)n the prisoner tolling her that the cotlei* was Ibr her, she poinod out some for hers«»lf, jind drank it, and in about five minutes becanu» very ill. It was objectt»d that the more mixing of poison, and leaving it in some place for the pei^sou to take it was not snlVjcient to constitute an ad- ministeni\g. — Park, J., said: "There has been much arg\nne»»t whe(lu»r, in this cas«\ tln»re has been in\ ad- mi«\istering of this poison. It has been contended that thew tu\jst be a numiud delivery of the poistm, and the law, as stated in Kyan v^ Moody's Reports goes that way (U. \'«. Oadnmn, I Moody lit); but as my note difti»rs tWu) that r^^port, autl also from my own feelings, I am inclined to think that some mistake has crept into that JV|H)rt. It is theiv stated that the judgt»s thought the swallowiiig of the poison not essential, but my recol- lection is, that the judgi^s held just the contrary. I am it\cliuiHl to hold that tluMv was an administering lunv ; and I aiu of opinion that, to constit'^ ati administering it is not noce«sj»ry that theiv shou •. be a delivery by the hand." — 1 Russ<>U 9!>S, and reaves, note ^' to it. ATttm-n Ti) MUllUKU. 220 win, ,„t.„,U„ .„„r,l„r I), „,„l that A neglecting to Z ,„ n,t™t,,. to ,„„nl,. ,>o„ti.„,i„«. U.,g. 'v„ jfir^U VVI„„„ tl,., |,rU„„„r, l,„vi„g ,nixo.l'corro»ive sublimate wah m,Kar. put it into a parcel, directing it to "C Mm, ' W«/.„;,y- a„d left it on ti.e counter of a tral^: "«", w o„„„t„,to Mr., naw. wl,« ,„ed «,„„, ,7 h„ ""gar, Gum,y, 1,.,W it to l,e an a.I„,i„i,teri„g._ R 'j Audiftlie i.i,lict,.ieiit contain* a count, " «» «fe«. lo commit mimkr," uum-rMv tl... ..„., i- """''"'cm r ■ ■ . , ' >v-"'""'yt tl,o preceding case. U vh LewiH, iH clear law.— Arehbold, (iM ' KvlAwice of ,nl,„ini«tering at ditlcrent time, may bo given to »l,ow the intent.- Archbohl, r.«o. Theilnt to n,n,.,I„r ,„„,t be proved by circnm.tanee, from wh "h tliat intent may !,„ implied. Jnitidmnt/or woumUmj with intent to murder - ...... one J. N. fclonionsly and unlawfully did wo,inJ t'' h,^ f ;■ ^'" '" '": ''"'^'■''«*'"-) A.1,1 acount " with M- i"U,nt to commit munler " generally. Archbol"; Tl,e inrtrnment or n.ean, by which the wound wa, "I W nee,l not be ntated, and, if stated, would not ZZ le l,e prosect,. to p,.ove a wound by'such mean 1 K. VS. JJniigs, 1 Mooil. a 18. and' '4l';"'':""'"'"n""'"' " ^™'""'" ""'''"J^' «™^y ""tab" "ow„eee»ry to «i.e,e i7u,e iillZt^ trt 280 THE CRIMINAL STATUTE LAW. prisoner did wound the prosecutor ; and that allegation will be proved by any wound, whether it be a stab, cut, or other wound." Greaves, Cons. Acts, 45. The word <' wound "includes incised wounds, punctured wounds, lacerated wounds, contused wounds, and gunshot wounds. — Archbold, 664. But to constitute a wound, within the meaning of this Statute, the continuity of the skin must be broken.— R. vs. Wood, 1 Mood. 278. The whole skin, not the mere cuticle or upper skin, must be divided. — Archbold, 665. But a division of the internal skin, within the cheek or lip, is sufficient to constitute a wound within the Sta- tute. — Archbold, 665. The StLiute says " by any means whatsoever, so that it is unmaterial by what means the wound is inflicted, pro- vided it be inflicted with the', intent alleged.-- Rex vs^ Harris, Rex vs. Stevens, Rex vs. Murrow and Jenning^s case, and other similar cases cannot therefore be consi- dered as authorities under the present law." Greaves, Cons. Acts, 45. It is not necessary that the prosecutor should be in fact wounded in a vital part ; for the question is not what the wound is, but what wound was intended.— R. vs. Hunt, 1 Mood. 93. There does not seem any objection to insert counts on the 10th and I7th sections (Canada) ; and it is in all cases advisable, where it is doubtful whether the prisoner intended to murder or merely to maim.— 3 Bum 752.— Archbold, form of indictment, 650 ; R. vs. Strange, 8 Car. & P. 172 ; R. vs. Murphy, 1 Cox, 108. On the trial of any indictment for wounding with intent to murder, if the intent be not proved,^ the jury may convict oi unlawfully wounding.— Archbold, 650, ATTEMPTS TO MURDER. 231 This verdict would fall under the last part of sect. 19, of the 32-33 Vict., ch. 20, see post. Archbold, 650, says that a defendant cannot, on an in- dictment for the felony, plead guilty to the misdemean- or. But it appears to have been done recently, in Reg. vs. Roxburg, 12 Cox, 8, and allowed by Ch. Justice Cock- bum. The defendant may also be found guilty of an attempt to commit the felony charged : s. 49, Procedure Act, 1869. The jury may also find a verdict of common assault, if the evidence warrants it— Sect. 51, Procedure Act, 1869. Reg. vs. Archer, 2 Mood. 283. If the defendant is convicted of a misdemeanor only, sect. 77 post as to fine and sureties applies. An attempt to commit suicide remains a misdemeanor at common law, and is not an attempt to commit mur- der within this Statute.— R. vs. Burgess, ^L. & C. 258. ATTEMPTING TO MURDER BY DESTROYING OR DAMAGING BUILDING WITH GUNPOWDER. Sect. 11. — Whosoever,by the explosion of gunpowder or other explosive substance, destroys or damages any build- ing, with intent to commit murder is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life, or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement. — 24- 25 Vict., ch. 100, s. 12, Imp. Indictment— feloniously, unlawfully and maliciously did, by the explosion of a certain explo- 232 THE CRIMINAL STATUTE LAW. sive substance, that is to say, gunpowder, destroy {destrotf^ or damage) a certain building situate with intent thereby then feloniously, wilfully and of his malice afore- thought, one J. N. to kill and murder, against {Add a count, stating the intent to be generally " to commit murderJ^) In R. vs. Ryan, 2 M. & Rob. 213, Parke and Alderson held that a count alleging to commit murder, generally, is sufficient. See sect. 77 of this Act post, as to recognizance and sureties. The jury mav return a verdict of an attempt to com- mit the felony.— S. 49, Procedure Act, 1869 As to solitary confinement, see sect. 94 of the Pro- cedure Act of 1869. SETTING FIRE TO OR DESTROYING SHIPS WITH INTENT TO MURDER. Sect. 12. — Whosoever sets fire to any ship or vessel, or any part thereof, or any part of the tackle, apparel or furniture thereof, or any goods or any chattels being therein or casts away or destroys any ship or vessel, with the intent in any of such cases to commit murder, is guilty of felony, and shall be liable to be imprisoned in the Peni- tentiary for life or for any term not less than two years, or to be imprisoned in any other gaol or place of confine- ment for any term less than two years, with or without hard labour, and with or without solitary confinement, — 24-25 Vict., ch. 100, s. 13, Imp. Indictment, — feloniously and unlawfully did set fire to C^^ast away or destroy) a certain ship called with intent thereby then feloniously, wilfully and of his malice aforethought, to kill one {Add a count stating the intent to " commit murder" generaUy.). ATTEMPTS TO MURDER. 233 Sect. 49 of the Procedure Act of 1869 allows a verdict for an attempt to commit the felony charged in certain cases. See section 77 post as to sureties to keep the peace, and sect. 94 of the Procedure Act of 1869, as to solitary confinement. ATTEMPTING TO POISON, SHOOT, DROWN, ETC., WITH IN- TENT TO MURDER. Sect. 13. — Whosoever attempts to administer to, or attempts to cause to be administered to, or to be taken by any person, any poison or other destructive thing, or shoots at any person, or by drawing a trigger or in any other manner, attempts to discharge any kind of loaded arms at any person, or attempts to drown, suffocate or strangle any person, with intent in any of the cases aforesaid to commit murder, whether any bodily injury be effected or not, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for hfe, or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement.— 24-25 Vict., ch. 100, sect. 14, Imp. Sect. 18.— Any gun, pistol or other arm, loaded in the barrel with gunpowder or other explosive substance and ball, shot, slug or other destructive material, or charged with compressed air and having ball, shot, slug or other destructive material in the barrel, shall be deemed to be loaded arms, within the meaning of this Act, although the attempt to discharge the same may fail for want of proper priming or other cause.— 24-25 Vict., ch. 100, s. 19, Imp. I 234 THE CRIMINAL STATUTE LAW. ;fRf1 If I' Greaves (Consol. Acts, 48) on clause 14, Imp. remarks: " Where the prisoner delivered poison to a guilty agent, with directions to him to cause it to be administered to another in the absence of the prisoner, it was held that the prisoner was not guilty of an attempt to administer poison, within the repealed acts. — Reg. vs. Williams, 1 Den, 39 ; and the words * attempt to cause to be ad- ministered to, or to be taken by ' were introduced in this section to meet such cases." And on sect. 19 Imp., he says : '^ This clause is new, and is introduced to meet every case where a prisoner attempts to discharge a gun, etc., etc., loaded in the barrel, but which misses fire for want of priming, or of a copper cap, or from any like cause. Rex vs. Carr, Rus. & Ry. 377 ; Anon, 1 Russell, 979 ; and Rex vs. Harris, 5 C. & P. 159, cannot therefore be considered as authorities under this Act." Indictment for attempting to poison with intent. — . feloniously and unlawfully did attempt to ad- minister {attempt to administer to, or attempt to cause to be administered to, or to he taJcen hy) to one J. N. a large quantity, to wit, two drachms of a certain deadly poison called white arsenic {any poison &r other destruc- tive thing) with intent thereby then feloniously, wil- fully, and of his malice aforethought, the said J. N. to kill and murder, against (Add a count stating the intent " to commit murder^'' genrrally. Add counts charging that the defendant " attempted to cause to he admi- nistered to" and that he " attempted to cause to he taJcen hy " J. N. the poison.) Archbold, 651. In R. vs. Cadman, 1 Mood. 114, the defendant gave the prosecutrix a cake containing poison, which the pro- secutrix merely put into her mouth, and spit out again, and did not swallow any part of it. It is said inArchbold, ATTEMPTS TO MURDER. jjft5 651, that these circumstances would support an indict- ment under the above clause. Where the prisoner put salts of sorrel in a sugar basin, in order that the prosecutor might take it with his tea, it was held an attempt to administer. — Reg. vs. Dale, 6 Cox, 547. See remarks under clause 10 SH2)ra. Indictment for attempting to drotvn with intent to murder. — feloniously and unlawfully did take one J. N. into both the hands of him the said J. S. and feloniously and unlawfully did cast, throw, and push the said J. N. into a certain pond wherein there was a great quantity of water, and did thereby then feloniously and unlawfully attempt the said J. N. to drown and suffocate, with in- tent thereby then feloniously, wilfully and of his malice aforethought, the said J. N. to kill and murder, against (^dd a count charging generally that the defen- dant did attempt to drown J. N. and counts charging the intent to he to commit murder.^ — Archbold, 652. It has been held upon an indictment for attempting to drown, it must be shown clearly that the acts were done with intent to drown. An indictment alleged that the prisoner assaulted two boys, and with a boat-hook made holes in a boat in which they were, with intent to drown them. The boys were attempting to land out of a boat they had punted across a river, across which there was a disputed right of ferry : the prisoner attacked the boat with his boat-hook in order to prevent them, and by means of the holes which he made in it caused it to fill with water, and then pushed it away from the shore, whereby the boys were put in peril of being drowned. He might have got into the boat and thrown them into the water ; but he confined his attack to the boat itself, as if to prevent the landing, but apparently re"-ardless of 236 THE CRIMINAL STATUTE LAW. the consequences. Coltman, J., stopped the case, being of opinion that the evidence against the prisoner showed his intention to have b.i<;.i iMtli^ir to prevent the landing of the boys than to <1o tliem - , injury. — Sinclair's case, 2 Lew. 49. Indictment for shooting with intent to murder, — a certain gun, then loaded with gunpowder and divars leaden shot, at and against one J. N. folcn'o sly and un- lawfully did shoot, with intent thereby then feloniously {as in the last precedent.) Add also counts stating " with intent to co^nmit mimler " generally. Also a count for shooting ivith intent to maim, etc., etc , under sect. 17 i^os^— Archbold, G-'iS. In order to bring the case, within the above section, it must be proved that the prisoner intended by the act charged to cause the death of the suffering party. This will appear either from the nature of the act itself, or from the expressions and conduct used by the prisoner. Roscoe, 720. Upon an indictment for wounding Taylor with intent to murder him, it appeared that the prisoner intended to murder one Maluney, and, supposing Taylor to be Malo- ney, shot at and wounded Taylor ; and the jury found that the prisoner intended to murder Maloiiey, not know- ing that the party he shot at w^as Taylor, but suppos- ing him to be Maloney, and that he intended to murder the individual he shot at, supposing him to be Maloney, and convicted the prisoner ; and upon a case reserved, it was held that the conviction was right, for though he did not intend to kill the particular person, he meant to mur- der the man at whom he shot. — Reg. vs. Smith, Dears. 559 ; 1 Russell, 1001. It seems doubtful w^hether it must not appear, in order to make out the intent to murder, that that in- ATTEMPTS TO MURDER. 2m tent existed in the mind of the defendant at the time of the offence, or whether it would be sufficient if it • would have been murder had death ensued.—Archbold 652. ' Onthis question, Greaves, note , an act respecting wreck and salvage' other provisions for the offences here above men- tioned are made ; but by sect. 33 of the said Act, it is enacted that — " Any person committing au offence against this Act, which is also an offence against some other Act, may be prosecuted, tried, and, if convicted, punished under either Act." SHOOTING OR ATTEMPTING TO SHOOT, WOUNDING, ETC., ETC., ETC., WITH INTENT TO DO GRIEVOUS BODILY HARM. Sect. 17. — Whosoever unlawfully and maliciously, by any means whatsoever, wounds or causes any griev- ous bodily harm to any person, or shoots at any per- son, or by drawing a trigger or in any other manner attempts to discharge any kind of loaded arms at any person, with intent in any of the cases aforesaid to maim, disfigure or disable any person, or to do some other grievous bodily harm to any person, or with the intent to resist or prevent the lawful apprehension or detainer of any person, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life or for any term SHOOTING OB ATTEMPTING TO SHOOT, ETC. 245 not less than two years, or to be imprisoned in any other gaol or place of confinement for ai:/ term less than two years with or without hard labour, and with or without solitary confinement— 24-25 Vict., ch. 100 s. 18 — Imp. ' ' See section 18, supra, as to what constitutes a loaded arm within the meaning of this Act. Indictment for wounding with intent to maim— "^^^^ J. S. on one J. N. feloniously, un- lawfully and maliciously did wound, with intent in so domg, him the said J. N. thereby then to maim ; against .... Add count stating ''with intent to disfigure/' and me " with intent to disahW' Also one statina with " in- tent to do some grievous bodily harm."~And if necessary ■one '^with intent toprevent (or resist) the Imful apprehen- sion o/." — Archbold, 663. An indictment charging the act to have been done ''feloniously, wilfuUy and maliciously" is bad the words of the Statute being '' unlawfully and malicious- ly. '— R. vs. Ryan, 2 Mood. 1-5. In practice the first count of the indictment is generally for wounding with intent to murder, under sect. 10. These counts are al- lowed to be joined in the same indictment, though the punishments of the several offences specified in them are different.— Archbold, 664. The word "maliciously" in thissection does not mean with malice aforethought ; for if it did the offence would be included under the 13th section. This clause includes every wounding done without lawful excuse, with any of the mtents mentioned in it, for from the act itself malice will be inter; v .Archbold 669. The instrument o)- neans by which the injury was inflicted need not be stated in the indictment, and, if stated, need not be proved as laid.-R. vs. Briggs ] 246 THB CRIMINAL STATUTE LAW. Mood. 318. And in the same case, it was held that upon an indictment which charged a wound to have been in- flicted by striking with a stick and kicking with the feet,, proof that the wound was caused either by striking with a stick or kicking was sufficient, though it was uncertain by which of the two the injury was inflicted. As to what is "a wound " within the Statute, see ante remarks under section 10. In order to convict of the felony, the intent must be proved as laid ; hence the necessity of several counts charging the offence to have been committed with dif- ferent intents. If an indictment alleged that the defen- dant cut the prosecutor with intent to murder, to dis- able, and to 00 some grievous bodily harm, it will not be supported by pr(> >f of an intention to prevent a lawful apprehension., K. vs. Duffin, R. & R. 365 ; R. vs. Boyce, 1 Mood. 29 ; unless for the purpose of effecting his escape the defendant also harboured one of the in- tents stated in the indictment, R. vs. Gillow, 1 Mood. 85 ; for where both intents exist, it is immaterial which is the principal and which the subordinate. Therefore, where, in order to commit a rape, the defendant cut the private parts of an infant, and thereby did her grievous bodily harm, it was holden that he was guilty of cutting with intent to do her grievous bodily harm notwithstand- ing his principal object was to commit the rape. — R. va. Cox, Russ. & Ry. 362. So also, if a person wound an- other in order to rob him, and thereby inflict grievous bodUy harm, he may be convicted on a count charging him with an intent to do grievous bodily harm. — Arch- bold, 666. An indictment charging the prisoner with wounding A, with intent to do him grievous bodily harm, is good, although it is proved that he mistook A for some body RHOOTINQ OR ATTEMPTINQ TO SHOOT, ETC. 247 '«lse, and that he intended to wound another person. —11 Cox, 643, Reg. vs. Stopford. The prisoner was indicted for shooting at A with intent to do him grievous bodily harm. He fired a pistol into a group of persons, who had assaulted and annoyed him, among whom was A, without aiming at A, or any one in particular, but intending generally to do grievous bodily harm, and wounded A. Held, on a case reserved that he was rightly convicted.— 1864, Reg. vs. Fretwell| Leigh & Cave, 443. With respect to the intents mentioned in the Statute it may be useful to observe that to maim is to injure any part of a man's body, which may render him, in fighting, less able to defend himself, or annoy his enemy. To disfigure, is to do some external injury which may detract from his personal appearance ; and to disable is to do something which creates a permanent disability, and not merely temporary injury.— Archbold, 666. It is not necessary that a grievous bodily harm should be either pennanent or dangerous ; if it be such as seriously to interfere with health or comfort, that is sufficient • and, therefore, where the defendant cut the private parts of an infant, and the wound was not dano-erous and was small, but bled a good deal, and the jury found that it was a grievous bodily harm, it \vas holden that the conviction was right.— R. vs. Cox, Rus. & Ry. 362. Where the intent laid is to prevent a lawful apprehen- sion, it must be shown that the arrest would have been lawful ; and where the circumstances are not such that the party must know why he is about to be apprehended it must be proved that he was apprised of the intention to apprehend him.— Archbold, 667. While the defendant was using threatening language to a third person, a constable in plain clothes came up I 248 THE CRIMINAL STATUTE LAW. and interfered. The defendant struck, the constable with his fist, and there was a struggle between them. The constable went away for assistance, and was absent for an hour ; he changed his plain clothes for his uniform and returned to defendant's house with three other con- stables. They forced the door and entered the house. The defendant refused to come down, and threatened to kill the first man who came up to take him. The con- stables ran up stairs to take him, and he wounded one of them in the struggle that took place. Heldy upon a case reserved, that the apprehension of the prisoner at the time was unlawful, and that he could not be con- victed of wounding the constable with intent to prevent his lawful apprehension. — Eeg. vs. Marsden, 11 Cox, 90. Under an indictment for a felonious assault with intent to do grievous bodily harm, a plea of guilty to a common assault may be received, if the prosecution consents. — Eeg. vs. Roxbury, 12 Cox, 8. Upon an indictment, for the felony under this clause,, the jury may find a verdict of guilty of an attempt to commit it.— 'Sect. 49, Procedure Act, 1869. A verdict of common assault may also be found. — Sect. 51, Procedure Act, 1869. And, if the prosecutor fail in proving the intent, the defendant, in virtue of the last part of sect. 19 of chap. 20, 32-33 Vict., {next section) may be convicted of the misdemeanor of unlawfully wounding, and sentenced un- der said sect. — Arcbbold, 667. And where three are indicted for malicious wounding with intent to do grievous bodily harm, the jury may convict two of the felony and the third of unlawfully wounding. — Reg. vs. Cunningham, Bell C.C. 72. As to solitary confinement, see Procedure Act, 1869,. sect. 94. UNLAWFULLY WOUNDING. 249 And sect. 77, postj for additional punishment in certain cases. WHAT CONSTITUTES LOADED ARMS. Sect. 18. — See, ante, under sect. 13. UNLAWFULLY WOUNDING OR INFLICTING GRIEVOUS BODILY HARM. Sect. 19. — Whosoever unlawfully and maliciously wounds or inflicts any grievous bodily harm upon any other person, either with or without any weapon or in- strument, is guilty of a misdemeanor, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding three years and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard la- bour. — 24-25 Vict., ch. 100, 8. 18, Imp. Sect. 19 continued. — And if upon the trial of any indict- ment for any felony (except in cases of murder and man- slaughter) the ijidictment alleges that the defendant did cut, stab, wound or inflict grievous bodily harm on, any person, and the jury be satisfied that the defendant is guilty of the cutting, stabbing or wounding, or inflicting grievous lodily harm charged in the indictment, but be not satisfied that the defendant is guilty of the felony charged in such indictment, the jury may acquit of the felony, and find the defendant guilty of unlawfully cut- ting, stabbing or wounding, or inflicting grievous bodily harm, and such defendant shall be liable to be imprisoned in the Penitentiary for any term not exceeding three years and not less than two years, or to be imprisoned in any gaol or place of confinement, other than the Peni- tentiary, for any term less than two years. — 14-15 Vict., ch. 19, s. 5, Imp. 250 THE OniMINAL STATUTE LAW. Indictment for unlawfully wounding. — one J. N. unlawfully and maliciously did wound [wound or inflict any grievous bodily harm upon) against the form. Add a count charging that the defendant " did inflict grievous bodily harm upon J. N.^' — Archbold, 668. As to what is a wounding, see ante, remarks undor sect. 10. Tho act must have been done maliciously. Malico would in most cases bo presumed. — 3 Burn, 754. See, antCf remarks under sects. 13 and 17 Upon an indictment for assaulting, beating, wounding and inflicting grievous bodily harm, the prisoner may be convicted of a common assault. — Reg. vs. Oliver, Bell C. C. 287. Upon an indictment charging that the prisoner " un- lawfully and mahciously did assault one H. K., and did then and there unlawfully and maliciously kick and wound him, the said H. R., and thereby then and there did unlawfully and maliciously itiflict upon the said H. R., grievous bodily harm, against " the jury may re- turn a verdict of guilty of a common assault merely. — Reg. vs. Yeadon, Leigh & Cave, 81. In Reg. vs. Taylor, 11 Cox,261, the indictment was as follows *'That Taylor on unlawfully and ma- liciously did wound one Thomas And the jurors that the said Taylor did unlawfully and mali- ciously inflict grievous bodily harm upon the said Thomas" Upon this indictment the jury returned a verdict of common assault, and upon a case reserved, the convic- tion was affirmed. In Reg. vs. Can well, 11 Cox, 2G3, a verdict of com- mon assault was also given upon an indictment contain- UNLAWFLLLY WOUNDINO. Ml ing oiiiy one count for maliciously and unlawfully in- flicting grievous bodily harm, and the conviction was aflinmul, upon u case rcsorvcii. Tl»e last part of the fi»»ove section, the 19th, forms, in Ent^land, a separate cluu,-*e of quite a different Statute, 14-15 Vict., ch. 19, sect. 6. It would apnlv to an iridictni.nt for robbery with wounding. See remarks on sect. 42 of the Larceny Act. ^ Tiie words in italtcs are not in the English Act. The words cutting or stabbing ought to have been left out. There is no such offbh^. in the whole Statute. Of course these words are in the Imperial Statute, but at the tinieofthis enactment, in Eriirland, 14-16 Vict., ch. 19, s. 6^ there was then then-, as there was for us, the offence of cutting or stabbing. But tin o is )iO such thing now, neither in England nor in Canada. Wounding is now the general term covering all these cases, by our Act concerning offences against the person of 18G9, ch. 20, as it is in England by the 24-26 Vict., ch. 100. In Reg. vs. Ward, 12 Cox, 123, the indictment charged a felonious wounding with intmt to do grievous bodily harm. The jury returned a verdict of unlawful wound- ing, under 14-15 Vict., ch. 19, s. 6,(8econd part of our s. 19 ch. 20, supra.) Upon a case reserved, it was held that the words ''maliciously and'' must be understood to precede the word unlawfully in this section, and that to support the verdict, the act must have been done maliciously as well as unlawfully. Greaves, in an article on this case, 1 Law Magadnc 379, censures severely this ruling. According to him, a new offence, that of unlawful wounding, was created by that clause, and the word maliciously has been purposely 'iV> IMAGE EVALUATION TEST TARGET (MT-3) /^^^^. 4, years, or to be imprisoned in any other gaol or place of confinement for any term less than two years with or without hard labour. — 24-25 Vict., ch. 100 s. 23 Imp. Sect. 23.— Whosoever unlawfully and maliciously ad- ministers to or causes to be administered to or taken by Ml 256 THE CRIMINAL STATUTE LAW. ' any other person, any poison or other destructive or noxious thing, with intent to injure, aggrieve, or annoy such person, is guilty of a misdemeanor, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding three years, and not less than two years, or to be imprisoned in any other gaol or place of con- finement for any term less than two years, with or without hard labour.— 24-25 Vict., ch. 100, s. 24, Imp. Sect. 24. — If, upon the trial of any person for any felony in the last but one preceding section mentioned, the jury are not satisfied that such person is guilty thereof, but are satisfied that he is guilty of any mis - demeanor in the last preceding section mentioned, then, and in every such case, the jury may acquit the accused of such felony, and find him guilty of such misdemeanor, and thereupon he shall be punished in the same manner as if convicted upon an indictment for such misdemeanor. — 24-25 Vict., chap. 100, s. 25, Imp. Indictment for administering poison so as to endanger life. — feloniously, unlawfully and maliciously did administer to one J. N., {or cause ) a large quantity, to wit, two drachms of, a certain deadly poison called white arsenic, and thereby then did endanger the life of the said J. N. against Add a count stating that the defendant " did cause to be taken b> T. N. a large quantity " and if the kind of poison be doubtful, add counts describing it in different ways, and also stating it to be "a certain destructive thing, {or a certain noxious thing) to the jurors aforesaid unknown." There should be also a set -of counts stating that the defendant thereby " inflicted upon J. N. grievous bodily harm." — Archbold, 671. NEGLECT TO PROVIDE WITH FOOD, EOT, 267 Administering cantharides to a woman with intent to excite her sexual passion, in order to obtain connexion with her, IS an administering with intent to injure aggrieve or annoy, within the meaning of the Statute — Reg. vs. Wilkins, Leigh & Cave, 89. If the poison is administered merely with intent to injure, aggrieve or annoy, which in itself would merely amount to a misdemeanor under sect. 23, yet if it does in fact inflict grievous bodily harm, this amounts to a felony under section 22.— TuKev vs. Corrie 10 Cox 640. ' ' ' See, post, sect. 77, as to fine and sureties to keep the peace in certain cases. Under sect. 49 of the Procedure Act of 1869 the defendant, in certain cases, may be found guUty of the attempt to commit the offence charged. NEGLECT TO PROVIDE WITH FOOD, ETC., ETC., WIFE, CHILD, APPRENTICE, ETC. Sect 25— Whosoever being legally liable, either as a husband, parent, guardian or commUtee, master or mistress, nurse or otherwise, to provide for any person as wife, child, ward, lunatic or idiot, apprentice or servant mfant or otherwise, necessary food, clothing or lodging' Wilfully and without lawful excuse, refuses or neglects to provide the same, 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 en- dangered, or the health of such apprentice or servant has been or is likely to be, permanently injured, is guilty of a misdemeanor, and shall be liable to be imprisoned m the Penitentiary for any term not exceeding three years and not less than two years, or to be imprisoned 258 THE CRIMINAL STATUTE LAW. i in any other gaol or place of confinement for any term less than two years, with or without hard labour.— 24- 26 Vict., ch. 100, s. 26, Imp. The words in Italics are not in the Imperial Statute. They were in the Bill as introduced in the House ot Lords, but were struck out by the Commons. — Greaves^ Cons. Acts. 66. Indictment for not providing an apprentice with, necessary food. . -That J. S., on . . . .then being the master of J. N. his apprentice, and then being legally liable to provide for the said J. N., as his apprentice as aforesaid, neces- sary food (clothing or lodging) ^ unlawfully, wilfully and w;ithout lawful excuse did refuse and neglect to provide the same, so that the life of the said J. N. was thereby endangered (or the health of the said J. N. has been or is likely to he permanently injured) against the form .... . .Add counts varying the statement of the injury sus- tained. — Archbold, 692. Prove the apprenticeship j if it was by deed, by pro- duction and proof of the execution of the deed, or in case it be in the possession of the defendant, and there be no counterpart, by secondary evidence of its contents, after due notice given to the defendant to produce it. The legal liabilily of the defendant to provide the pro- secutor with necessary food, clothing or lodging will be Inferred, even if it be not expressly stipulated for, from the apprenticeship itself. Prove the wilful refusal or neglect of the defendant to provide the prosecutor with necessary food, &c., as stated in the indictment. Whe- ther it be necessary to prove that by such neglect, the prosecutor's life was endangered, or his health was or was likely to be permanently injured, depends upon the construction which is to be put upon the Statute. If the words "so that the life of such person shall be NEaLEOT TO PROVIDE WITH POOD, ETC. endangered, or, &c.," apply to aU the preceding matter, such proof wiU be necessary; if only to the branch of the section which relates to the actual doing of bodily harm to the apprentice or servant, such proof will be unnecessary. Until there has been some decision on the subject, it will be safer to allege " so that the life or health " as the case may be, and to be pre- pared with evidence to sustain it. It would seem indeed to be the better opinion, that the words " so that, &c." override all the preceding matter, otherwise a mere sin- gle wilful refusal to provide a dinner would be within the clause. Upon an indictment for unlawfully and malici- ously assaulting an apprentice or servant, it is clear that such allegation and proof are necessary. — Archbold, 692. An indictment alleged in the first count that the prisoner unlawfully and wilfully neglected and refused to provide sufficient food for her infant child five years old, she being able and having the means to do so. The second count charged that the prisoner unlawfully and wilfully neglected and refused to provide her infent child with necessary food, but there was no allegation that she had the ability or means to do so. The jury returned a verdict of guilty, on the ground that if the prisoner had applied to the guardians for relief she would have had it : HeUy that neither count was proved, as it was not enough that the prisoner could have ob- tained the food on application to the guardians, and that it is doubtful whether the second count is good in law. —Reg. vs. Rugg, 12 Cox, 16. It is to be remarked that the indictment in that case was under the Common law, since, in England, the Sta- tute corresponding to our s. 25, ch. 20, 32-33 Vict., as ante, applies only to masters and servants or apprentices. By the common law, an indictment lies for all misde- R 'W 260 THE OEIMINAL STATUTE LAW. m'i meanors of a public nature. Thus it lies, for a breach of duty? which is not a mere private injury, but an outrage upon the moral duties of society ; as for the neglect to provide sufficient food or other necessaries for an infant of tender years, unable to provide for and take care of itself, whom the defendant is obliged by duty to provide, so as thereby to injure its health. — Archbold, 1. But the parent must have a present means or ability to support the child ; the possibility of obtaining such relief is not sufficient : and by the neglect of such duty, the child must have suffered a. serious inj ury . An oppor- tunity of applying to a relieving officer of the union, from which the mother would have received adequate relief on application, is not a sufficient proof of her having present means. — R. vs. Chandler, Dears. 453 ; R. vs. Hogan, 2 Den. 277; R. vs. Philpott, * Dears. 145. But these and similar cases,are no authorities under our present Statute, in Canada. As to fining the offender and requiring him to enter into recognizances and give sureties for keeping the peace e^e posty sect. 77. EXPOSING CHILDREN UNDER TWO YEARS OF AGE. Sect. 26. — Whosoever unlawfully abandons or exposes any child being under the age of two years, whereby the life of such child is endangered, or the health of such child has been or is likely to be permanently injured, is guilty ef a misdemeanor, and shall be liable to be impri- soned in the Penitentiary for any term not exceeding three years and not less than two years, or to be impri- soned in any other gaol or place of confinement for any term less than two years, with or without hard labour —24-25 Vict., cb. 100, s. 27, Imp. '■'^^: EXPOSING CHILDREN UNDER TWO YEARS OF AOE. 261 Indictment.—. . . .unlawfuUy did abandon and expose 41 certain child caUed J. N., then being under the age of two years, whereby the life of the said child was endan- gered {or whereby the health of such child was likely to be permanently injured) against the form This provision is new. In order to sustain an indictment under it, it is only necessary to prove that the defendant wilfully abandoned or exposed the child mentioned in the indictment : that the child was then under two years of age, and that its hfe was thereby en- dangered, and its health had been or then was likely to be permanently injured.—Archbold, 693. A and B were indicted for that they "did abandon and expose a chUd then being under the age of two years whereby the life of the child was endangered." A the mother of a child five weeks old, and B put the chUd into a hamper, wrapped up in a shawl, and packed with shavings and cotton wool, and A, with the connivance of B, took the hamper to M, about four or five miles off to the booking office of the railway station there. She there paid for the carriage of the hamper, and told the clerk to be very careful of it, and to sand it to G by the next iialn, which would leave M in ten minutes from that time. She said nothing as to the contents of the hamper which was addressed " Mr. Carr's, Northoutgate, Gisbro' with care, to be delivered immediately, " at which address the father of the child (a bastard) was then living The hamper was carried by the ordinary passenger train, and dehvered at its address the same evening. The child died three weeks afterwards, from causes not attributa- ble to the conduct of the prisoners. On proof of these iacts, It was objected for the prisoners that there was no evidence that the life of the child was endangered and m 262 THE CRIMINAL 8TATITTB LAW. that there was no abandonment and no exposure of the child within the meaning of the Statute. The objections were overruled and the prisoners found guilty : IMd^ that the conviction should be affirmed.— Reg. vs Falkiiig- ham, 11 Cox, 475. A mother of a child under two years of age brought it and left it outside the father's house (she not living with her husband, the father of it.) Ho was inside the house, and she caUed out " Bill, here's your child ; I can't keep it. I am g(me." The father some time afterwards came out, stepped over the child and went away. About an hour and a half afterwards, his attention was again called to the child still lying in the road. His answer was, " it must bide there for what he knew, and then the mother ought to be taken up for the murder of it^' Later on, the child was found by the police in the roadj cold and stiff; but, by care, it was restored to animation. Held, on a case reserved, that, though the father had not had the actual custody and possession of the child, yet, as he was by law bound to provide for it, his allowing it to remain where he did was an abandonment and exposure of the child by him, whereby its life was endangered, within the Statute.—Reg. vs. White, 12 Cox, 83. See sect. 77, post, as to fine and sureties to keep the peace, in certain cases. CAUSING BODILY INJURY BY GUNPOWDER, ETC., EXPLOSION, ETC., THROWING CORROSIVE FLUID ON A PERSON, ETC., PLACING GUNPOWDER NEAR A BUILDING WITH INTENT, ETC. Sect. 27 — Whosoever unlawfully and maliciously, by the explosion of gunpowder or other explosive substance, bums, mahns, disfigures, disables or does grievous bodily OAtlOINO BODILY INJURY BY GUNPOWDER, BTO. 263 hann to any person is guilty of felony and 8hall be liable to be iraprisoued in the Penitentiary for life, or for any tenn not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement. — 24-25 Vict., eh. 100, s. 28, Imp. Sect. 28. — Wliosoever unlawfully and maliciously causes any gunpowder or other explosive substance to explode, or sends or delivers to, or causes to be taken or received by any person, any explosive substance, or any other dangerous or noxious thing, or puts or lays at any place, or casts or throws at or upon, or otherwise applies to any person, any corrosive fluid, or any destructive or explosive substance, with intent, in any of the cases aforesaid, to burn, maim, disfigure or disable any person, or to do some grievous bodily harm to any person, whe- ther any bodily harm be effected or not, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life, or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement. — 24- 25 Vict., ch. 100, s. 29, Imp. Sect. 29. — Whosoever unlawfully and maliciously places or throws in, into, upon, against or near any building, ship or vessel any gunpowder, or other explo- sive substance, with intent to do any bodUy injury to any person, whether or not any explosion takes place, and whether or not any bodily injury is effected, is guilty of felony and shall be liable to be imprisoned in the Pe- nitentiary for any term not exceeding fourteen years, and not less than two years, or to be imprisoned in any other 1:1 264 THE OBIMINAL STATUTE LAW. II I II gaol or place of confinement for any term less than two years, with or without hard labour, and with or without bolitary confinement. — 24-25 Vict., ch. 100, s. 30^ Imp. Indictment for huming by gunpowder — feloniously,. unlawfully and maliciously, by the explosion of a certain explosive substance, that is to say, gunpowder, one J. N. did bum ; against the form Add counts, vaying the statemenr of the injury, according to circumstances. — Archbold, 673. Indictment for sending an explosive substance with in- tent, etc feloniously, unlawfully and maliciously did send {or deliver to, or cause to be taken or received by) to one J. N, a ceitain explosive substance and dan- gerous and noxious thing, to wit, two drachms of fuLni- nating silver, and two pounds weight of gunpowder,, with intent in so doing him the sair" J. N. thereby then to burn (ma.i'»^. disfigure or disable, or do some grievous bodily harm) against Add counts varying the injury and intent. — Archbold, 673. Indictment for throwing corrosive fluid, with intent, etc. - feloniously, unlawfully and maliciously did cast and throw upon one J. N. a certain corrosive fluid, to wit, one pint cf oil of vitriol, with intent in so doing him the said J. N. thereby then to burn Add counts varying the injury and the intent. Archbold, 674. In Reg. vs. Crawford, 1 Den. C. C 100, the prisoner was indicted for maliciously throwing upon P. C. certain destructive matter, to wit, one quart of boiling water, with intent, etc. The prisoner was the wife of P. C, and when he was asleep, she, under the influence of jealousy, boiled a quart of water, and poured it over his lace and ^^■' V SETTING 8PRIN0-GUN8, ETC. 2m into one of his ears, and ran oiF boasting she had boiled him in his sleep. The injury was very grievous. The man was for a time deprived of sight, and had frequently lost for a time the hearing of one ear. The jury having^ convicted, upon a case reserved, the Judges held that the conviction was right. In R. vs. Murrow, 1 Mood., 456, it was held, where tlie defendant threw vitriol in the prosecutor's face, and so wounded him, that this wounding was not th& " wounding" meant by the 9 Geo. 4, ch. 31, s. 12. Archbold, 665 : but it would now fall under this Sta- tute. By section 48, post, " neither the justice of the Peace acting in and for any district, county, division, city or place, nor any judge of the sessions of the Peace, nor the recorder of any city, shall, at any session of the Peace, or at any adjournment thereof try any person for any offence under the twenty-seventh, twenty-eighth or twenty-ninth section of this Act." And see section 77, post, as to requiring sureties to keep the peace, in certain cases. Upon an indictment for any felony, the prisoner may be convicted of an attempt to commit the same in certain cases. — Procedure Act of 1869, sect. 49, and see sect. 94 of the same Act, as to solitary confinement. SETTING SPKING-QUNS, ETC., ETC., WITH INTENT, ETC., ETC.. Sect. 30.— Whosoever sets or places, or causes to be- set or placed, any spring-gun, man-trap or other engine calculated to destroy human life or inflict grievous bodily harm, with the intent that the same or whereby the same may des-troy or inflict grievous bodily harm, upon any trespasser or other np.rsnn rnminor in nf}ni-tK>i +1ip»««r;+l. SI I 266 THE CRIMINAL STATUTE LAW. is guilty of a misdemeanor, and shall be liable to be im- prisoned in the Penitentiary for any term not exceeding three years and not less than two years, or to be impri- soned in any other gaol or place of confinement for any term less than two years, with or without hard labour ; and whosoever knowingly and wilfully permits any such spring-gun, man-trap or other engine which may have been set or placed in any place then being in or after- wards coming into his possession or occupation by some other person, to continue so set or placed shall be deem- ed to haye set or placed such gun, trap or engine with such intent, as aforesaid ; provided that nothing in this section contained shall extend to make it illegal to set or place any gin or trap such as may have been or may be usually set or placed with the intent of destroying ver- min. — 24-25 Vict., ch. 100, s. 31, Imp. The English Act has the following additional proviso : *' Provided also that nothing in this section shall be deemed to make it unlawful to set or place or cause to be set or placed, or to be continued set or placed from sunset to sunrise, any spring-gun, man-trap or other en- gine, which shall be set or placed, or caused or conti- nued to be set or placed, in a dwelling-house for the pro- tection thereof." The omission of this proviso in our Statute, whether intentional or not, is very important- Indictment. — unlawfully did set and place,, and caused to be set and placed, in a certain garden situate a certain spring-gun which was then loaded and charged with gunpowder and divers leaden shot, with intent that the said spring-gun, so loaded and qparged as aforesaid, sbonld inflict grievous bodilv harm SETTING SPRING-GUNS, ETC. 267 upon any trespasser who might come in contact there- with, against Prove that the defendant placed or continued the spring- gun loaded in a place where persons might come in con- tact with it ; and if any injury was in reality occasioned, state it in the indictment, and prove it as laid. The in- tent can only be inferred from circumstances, as the posi- tion of the gun. the declarations of the defendant, and so forth ; any injury actually done will, of course, be some evidence of the intent. — Archbold, 675. A dog-spear set for the purpose of preserving the game is not within the Statute, if not set with the inten- tion to do grievous bodily harm to human beings. — 1 Russell, 1052. The instrument must be calculated to destroy life of cause grievous bodily harm, and proved to be such ; and, if the prosecutor, while searching for a fowl among some bushes in the defendant's garden, came in contact with a wire which caused a loud exploaion, whereby he was knocked down, and slightly injured about the face, it was held that the case was not within the Statute, as it was not proved what was the nature of the engine or substance which caused the explosion, and it was not enough that the instrument was one calculated to create alarm. — 1 Russell, 1053. See sect. 77, post, as to fining the offender, and re- quiring him to enter into recognizances and find sure- ties for keeping the peace and being of good beha- viour. 268 THE CRIMINAL STATUTE LAW. N i / PLACma WOOD, etc., casting stones on A RAILWAY OB" RAILWAY CARRIAGE WITH INTENT, ETC., ENDANGERING SABETY OP PASSENGERS BY UNLAWFUL ACT OR WILFUL NEGLECT. — Sect. 31. — Whosoever unlawfully and maliciously puts or throws upon or across any railway any wood, stone or other matter or thing, or unlawfully and maliciously takes up, removes or displaces any rail, sleeper or other matter or thing belonging to any railway, or unlawfully and maliciously turns, moves, or diverts any point or other machinery belonging to any railway, or unlawfully and maliciously makes or shows, hides or removes any signal or light upon or near to any railway, or unlaw- fully " or " maliciously does or causes to be done . other matter or thing, with intent in any of the caseet aforesaid, to endanger the safety of any person travelling or being upon such railway, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life, or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour.— 24-25 Vict., ch. 100, s. 32, Imp. Bee^post, under section 39 of the Act concerning mali- cious injuries to property for form of indictment, with the necessary change in the statement of the intent. Sect. 32.-Whosoever unlawfully and maliciously 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 of any train, of which such first mentioned engine, tender, carriage or PLACING WOOD, ETC., ON A RAILWAY. 269' truck forms part, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life, or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement, for any term less than two years, with or without hard labour.— 24-25 Vict., ch. 100, 8. 33 Imp. Sect. 33. — Whosoever, 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, is guilty of a misdemeanor, and shall be liable to be im^ prisoned in any gaol or place of confinement, other than a Penitentiary, for any term less than two years, with or without hard labour.— 24-25 Vict., ch. 100, s. 34, Imp. In the eighth line of the 31st section the word or is erroneously inserted instead of and, making it unlaw- fully or maliciously, instead of unlawfully and maliciously. An error of this kind may lead to grave consequences. The words of duty in the 33rd section are not in the English Act. But they are superfluous. In such a case, a neglect means a neglect of duty. See, j^ost, sect. 67, 31 Vic. ch. 12, and sect. 78, 31 Vict. ch. 68, which seem to relate to the same offence. Indictment for endangering hy wilful neglect the safety of Mailway ^passengers That J. S. on unlawfully did, by a certain wilful omission and neglect of his duty, that is to say by then wilfully omitting and neglecting to turn certain points in and upon a certain railway called in the parish which points it was then the duty of him, the said J. S., to turn, endanger the safety of certain persons then conveyed and being in and upon the said railway, again3t the form Add counts, varying the state.' V ;.: of defendant's duty,, etc. — Archbold, 676. 270 THE CRIMINAL STATUTE LAW, Prove that it was the duty of the defendant to turn the points; tliat he wilfully omitted and neglected to do so ; and that, by reason of such omission and neglect, the safety of the passengers or other persons conveyed or being on the railway was endangered, (which words will include not only passengers but officers and servants of the railway company). — Archbold, loc. cit. In Reg. vs. Holroyd, 2 M. and Rob. 339, it appeared that large (piantities of earth and rubbish were found placed across the railway, and the prosecutor's case was that this had been done by the defendant wilfully and in order to obstruct the use of the railway ; and the defen- dant's case was that the earth and ruboish had been ac- cidentally dropped on the railway: Maule, J., told th jury, that if the rubbish had been dropped on the rails by mere accident, the defendant was not guilty ; but " it was by no means necessary, in order to bring the case within this Act, that the defendant should have thrown the rubbish on the rails expressly with the view to upset tiie train of carriages. If the defendant designedly placed these substances, having a tendency to produce an obstruction, not caring whether they actually impeded the carriages or not, that was a case within the Act." And on one of the jury asking what was the meaning of the term *' wilfullv " used in the Statute, the learned Judge added " he should consider the act to have been tvilfidhj done, if the defendant intentionally placed the rubbisii on the line, knowing that it was a substance hkely to produce an obstruction ; if for instance, he had done so in order to throw upon the Company's officers the ne- cessarv trouble of removins; the rubbish." This deci- sion may afford a safe guide to the meaning of the term wilful in this clause. Greaves, Cons. Acts, 62, on s. 34. ^^f^S^Wsi^ T PLACING WOOD, ETC., ON A EAILWAT. 271 33 of our Statute). — In the other clauses, the word wil- fully is now replaced by unlawfully. On 8. 33 (32 ofp, injures or destroys any Railway track or Railway bridge or fence of any Railway or any portion thereof, or places any obstruction what- soever on any such rail, or Railway track, or bridge with intent thereby to injure any person or property passing over or along such Railway, or to endanger human life, such person shall be guilty of a misdemeanor and shall be punished by imprisonment, with hard labour in the common gaol of the Territorial Division in which 274 THE CRIMINAL STATUTE LAW. such offence is committed or tried, for any period not exceeding one year from conviction thereof ; and if in consequence of such act, done with the intent aforesaid, any person so passing over and along such Railway actually suffers any bodily harm, or if any property passing over and along such Railway be injured, such suffering or injury shall be an aggravation of the offence, and shall render the offence a felony, and shall subject the offender to punishment by imprisonment in the Penitentiary for two years, or in any other prison or place of confinement for any period exceeding one year and less than two years. Sect. 74 enacts that if, in consequence of any act punishable under sections 73 and 75, any person be killed, or his life be lost, the offence is manslaughter, punishable by imprisonment in the Penitentiary for any period not more than ten nor less than four years. As to this clause, see, ante, under head " manslaughter.''* Sect. 75. — If any person wilfmlly and maliciously does or causes to be done, any act whatever, whereby any building, fence, construction or work of any Railway, or any engine, machine or structure of any Railway, or any matter or thing appertaining to the same is stopped, obstructed, impaired, weakened, injured or destroyed, the person so offending shall be guilty of a misdemeanor, and be punished by imprisonment v^dth hard labour not exceeding one year, in the Common Gaol of the Territorial Division in which the offence was committed or h&s been tried. In England, sect. 15 of the General Railway Act, 3 & 4 Vict., ch. 97, contained enactments of the same nature as the above, but was repealed by the General Repeal Act, 24-25 Vict., ch. 95, passed vnth the Consolidation of the Criminal Statutes. Our General Repeal Act, 32-33 PLAOINO WOOD, ITC., ON A RAILWAY. 2^5 Vict., ch. 36, makes no mention of the above clauses of our Railway Act. They then stand unrepealed, and in lull force, according to the third paragraph of section 1 of the said Repeal Act; and in virtue thereof offences against Railway, &c., are to be tried and punished either under the said Railway Act, or under chapters 20 or 22 of the 32-3.3 Vict. Now, there is a wide difference be- tween these Acts : for instance, if a man removes a rail, with intent to endanger human life, by the Railway Act, he 18 guilty of misdemeanor, and punishable by impri- sonment for any period not exceeding one year (sect. 73) • by ch. 20, sect. 31, he is guilty of felony, and liable to Penitentiary for life! And this difference between these Acts 18 remarkable throughout all the penal clauses of the: Railway Act, when compared with the clauseson the same subject of chapters 20 and 22 of the 32-33 Vict. Par- liament should, it is submitted, remedy these anomalies in the law. Then why not repeal, as to railways, sect. 67 and sect 68 of 31 Vict., ch. 12— "an Act respecting the pubUc works of Canada?" They are as foUows : Sect. 67.— And whereas, for the better protection c hfe and property, as well on the Public Works and Rail- ways of the Dominion, as on Railways managed by com- panies in Nova Scotia and New-Brunswick, it is expe- dient to extend to them the provisions made for that purpose as regards Railways managed by companies in Quebec and Ontario, therefore if any officer or servant of, or any person employed by the Department on any Railway or Public Work being under the control of the Department, or by any Railway company in Nova Scotia or New Brunswick, wUfuDy or negligently contravenes: any by-law, order or regulation of the Depari;ment, or of the Company, or any order in Council, lawfnUv madft 276 THE CRIMINAL STATUTE LAW. V it or in force respecting the Railway or the Puhlic Woih on which he is employe*!, and of which a copy has been delivered to him, or has been posted up or open to his inspection in some place where his work or his duties or any of them are to bo performed, then if such contravention causes injury to any property or to any person, or exposes any property or any person to the risk of injury, or renders such risk greater than it would have been without such contravention, although no actual injury occurs, such contravention shall be a misdemeanor, and the pel son convicted thereof shall, in the discretion of the court before whom the conviction is had, and according as such court considers the offence proved to be more or less grave, or the injury or risk of injury to person or property to be more or less great, be punished by fine or im" ' inment or botn, so as no such fine exceeds four hundrcv. dollars, nor any such imprison- ment the term of five years ; and such imprisonment, if for two years or upwards, shall be in the Penitentiary for the Province in which the conviction takes place. Sect. 68. — If such contravention does not cause injury to any property or person, nor expose any property or person to the risk of injury, nor make such risk greater than it would have been without such contravention, then the officer, servant, or other person guilty thereof shall thereby incur a penalty not exceeding the amount of thirty days pay, nor less than fifteen days pay of the offender from the Department or Company, in the dis- cretion of the Justice of the Peace before whom tho conviction is had, and such penalty shall be recovers 'i with costs before any one Justice of the Peace having jurisdiction where the offence has been committed or where the offender is found, on the oath of one credible witness, ot':oi ti^an the informer. PLACINO WOOD, ETC., ON A BAILWAY. 277 Sections 78 and 79 of the Railway Act of 1868, 31 Vict. ch. 68, should also be repealed. Section 78 is as follows :— If any officer or servn H of, or person employed by any Railway Company, wilfully or negligently con- travenes any By-Law or regulation of the Company lawfully made and in force, or any order or notice of the Railway Committee, or of the inspecting engineer or engineers, cf which a copy has been delivered to him, or h..,- beon po.ted up or open to his inspection in some placo wl'.re his work or his duties, or any of them are to be performed, then if such contravention causes injury to any property or to any person, or exposes any pro- perty or any person to the risk of injury, or renders such risk greater than it would have been without such con- travention, although no actual injury occurs, such contravention shall be a misdemeanor, and the person convicted thereof shall in the discretion of the Court 'before whom the conviction is had, and according as such Court considers the offence proved to be more or less grave, or the injury or^risk of injury to person or property to be more or less great, be punished by fine or miprisonment, or both, so as no such fine exceeds four hundred dollars, nor any such imprisonment the term of five years ; and such imprisonment, if for over two years shall be in the Penitentiary. ' It is evident that these clauses clash with sect. 33 of ch. 20, cited ante. In England before the Consolidation Acts of 1861, the Statute law was, for sometime, in the same state as it is just now for us in Canada, (two different Statutes on these offences) and it may be useful to insert herethe remarks then made by Greaves on 14-15 Vict., chaplig sect. 6. CLord CampheWs Acts, by Greaves, 42. ' " It may be well to observe that the 3 & 4 Vict., 278 THE CRIMINAL STATUTE LAW. c. 97, sects. 13 & 14, provided for the punishment of servants, of railway companies, who (^inter alia) wil- fully or malicioLJsly did any acts, whereby the life or limb of any person passing along or being upon the rail- way should or might bo injured, or endangered, or tne passage of any engine, carriage or train impeded or ob- structed. Such persons might *»ither be summarily con- victed before one justice, or tried at the sessions, but the greatest punishment was two years imprisonment with hard labour. By secto 15 of the same act, persons who wilfully did, or caused to be done any thing in such manner as to obstruct any engine or carriage using any railway, or to endanger the safety of persons con- veyed upon the same, were made guilty of a misdemean- or, but the greatest punishment was two years impri- sonment with hard labour. Every one was perfectly satisfied that these provisions were quite inadequate to meet many malicious acts, that might be committed in respect of railway passengers, and therefore this and the next clause were introduced (31 and 32 ante, of chap. 20, 32-33 Vict, of our Statutes) to provide a fitting punish- ment for oifences of such a serious character. Although such parts of the clauses of the 3 & 4 Vict. c. 97,a8 relate to the oifences specified in this Act are not in terms repealed, yet they ought never to be acted upon ; for the offences being made felony and subjected to so much more severe punishment, all cases falling within this Act ought to be prosecuted under it, and if any indictment were preferred under the former Act when the case fell within this, no doubt the Court would order the jury to be discharged, and an indictment for the felony to be preferred,under the 14 and 15 Vict.,c. 100, 8. 12 ante p. 16 ; this being just the sort of case to which that clause is proiierlv applicable. Whether the misde- DRIVERS CP CARRIAGES INJURING PERSONS. 279 meaner would at common law have merged in the felony need not now be considered." The clause of the Imperial Statute hereinbefore cited by Greaves, 14-15 Vict., chap. 100, sect. 12, is repea- ted m our Procedure Act of 1869, sect. 50, so that, what this learned man said for England in 1851, may now be applied in Canada, and if any one were to prefer anindictment for a misdemeanor for any offences respect- ing a railway under the Railway Act of 1868, instead of under the Act on offences against the person, or on mali- cious injuries to property, it would be proper-generaUy speaking— to discharge the jury and order an indictment for felony to be preferred.— Lord CampbeU's Acts, by Greaves, p. 16. DRIVERS OF CARRIAGES INJURING PERSONS. Sect. 34.~Whosoever, having the charge of any car- riage or vehicle, by wanton or furious driving, or racin«^, or other wilful misconduct, or by wilful neglect, does or causes to be done any bodily harm to any person what- soever, is guilty of a misdemeanor, and shaU be liable to be imprisoned in any gaol or place of confinement other than a Penitentiary, for any term less than two years with or without hard labour.— 24-25 Vict-, ch. 100 s. 35, Imp. ' Indictment— being then a coachman, and then having charge of a certain carriage and vehicle caUed an omnibus, unlawfully did, by the wanton and furious driving of the said carriage and vehicle by him the said. {defendant) cause certain bodily harm to be done "to one J. N. against the form —Archbold, 677. This section includes all carriages and vehicles of every description, both public and private. Wilful mJm mluntary. Greaves, Consol. Acts, 63. 280 THE CRIMINAL STATUTE LAW. By sect. 77 ^ post, the Court may in addition to or in lieu of any punishment authorized by this Act fine the offender, and require him to enter into his own recog- uizances and to find sureties, both or either, for keeping the peace, and being of good behaviour. CAUSING BODILY INJURY BY UNLAWFUL ACT, OR NEGLECT OF DUTY. Sect. 35. — Whosoever, 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, is guilty of a misdemeanor, and shall be liable to be imprisoned in any gaol or place of confinement other than a Penitentiary for any term less than two years. This clause is not in the English Act. It is in the same terms as s. 33, ante, except that this last one applies only to passengers by railway endangered by the unlaw- ful act or neglect, or omission of duty. See s. 77, 2)0st, as to fining the offender and requiring him to give sureties for the peace, or both, or either. An injury resulting from an omission does not subject the person causing it to punishment, unless such omis- sion be unlawful. An omission is deemed unlawful whensoever it is a breach of some duty imposed by law, or gives cause to a civil action. 2nd Report Cr L. Com. 14 May, 1846. Mr. Starkie, one of fne English Commissioners, in a separate report, objected strongly to such an enactment, and the framers of the Imperial Statutes have thought proper to leave it out. What reasons can be given for introducing it in Canada ? The fact that it forms part of the Criminal laws of t)\e Colony of Victoria, Australia, (section 24) is not a con- ASSAULTING A CLERGTMAAN. 281 elusive proof of the soundness of this enactment when we have the weight of Imperial legislation against it. ASSAULTING A CLERGYMAN IN THE DISCHARGE OP HIS DUTY. Sect, 36. — Whosoever by threats or force unlawfully obstructs or prevents, or endeavours to obstruct or pre- vent any clergyman or other minister in or from cele- brating Divine Service, or otherwise officiating in any church, chapel, meeting-house, school-house^ or other place used for divine worship, or in or from the perform- ance of his duty in the lawful burial of the dead in any churchyard or other burial place, or strikes, or offers any violence to, or upon any civil process, or under the pretence of executing any civil process, arrests any clergyman or other minister who is engaged in or, to the knowledge of the offender, is about to engage in any of the rites orMuties in this section aforesaid, or who, to the knowledge of the offender, is going to perform the same, or returning from the performance thereof, is guilty of a misdemeanor, and shall be liable to be imprisoned in any gaol or place of confinement, other than a Peniten- tiary, for any term less than two years, with or without hard labour.— 24-25 Vict., ch. 100, s. 36, Imp. The words school-house are not in the English Act, and the words used for divine worship are substituted for of divine worship. Indictment for obstructing a clergyman in the dis- charge of his duty. — unlawfully did by force (threats or force) obstruct and prevent one J. N., a cler- gyman, then being the vicar of the parish of B., in the county of M., from celebrating divine service in the pa- rish church of the said parish (or in the performance of his 282 THE OBIMINAL STATUTE LAW. •duty in the laixful lunal of the dead in the church-yard of the parish church of the said parish) against the form Prove that J. N. is a clergyman and vicar of the parish of B., as stated in the indictment ; that the defendant by force obstructed and prevented him from celebrating divine service in the parish church, etc., etc., or assisted in doing so.— Archbold, 678. Indictment for arresting a clergyman about to engage in the performance of divine service unlaw- fully did arrest one J. N., a clerg3rman, upon certain civil process, whilst he, the said J. N., as such clergyman as aforesaid, was going to perform divine service, he the said (defendant) then well knowing that the said J. N. was a clergyman, ' and was so going to perform divine service as aforesaid 5 against the form Archbold, 678. As to fining the offender and requiring him to enter into recognizances and find sureties for keeping the peace and being of good behaviour, see s. 77, post. 'v! DISTURBING CONGREGATIONS MET FOR RELIGIOUS WORSHIP, &C. Sect. 37. — Whosoever wilfully disturbs, interrupts or disquiets any assemblage of persons met for religious wor- ship, or for any moral, social or benevolent purpose, by profane discourse, by rude or indecent behaviour, 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, may be arrested on view by any peace officer present at such meeting or by any other person present thereto verbally authorized by any Justice of the Peace present tliereat, and detained until he can be brought ASSAULTS ON OFFICERS, ETC., SAVING WRECK. 283 before a Justice of the Peace ; and such offender shall, upon conviction thereof before a Justice of the Peace, on the oath of one or more credible witnesses, forfeit and pay such sum of money, not exceeding twenty dollars, as the said Justice may think fit, and costs, within the period specified for the payment thereof by the convicting Jus- tice, at the time of the conviction, and in default of pay- ment, such Justice shall issue his warrant to a constable, to levy such fine and costs within a time to be specified in the warrant, and, if no sufficient distress can be found, such Justice shall commit the offender to the common gaol of the district, county or place wherein the offence was committed, for any term not exceeding one month, unless the fine and costs be sooner paid. The Imperial Statutes on the subject are the 1 Will. & M., ch. 18 : 52 G. 3, ch. 155, s. 12 ; 15-16 Vict., ch- 36 ; 23-24 Vict., ch. 32. The offences against this clause are punishable by sum- mary conviction. The clause seems to be based on ch. 92, s. 18, C. S. Canada, and ch. 22, s. 3, C. S. L. Cana- da. The procedure, in cases under this clause, would be under the Summary Conviction Act, ch. 31, 32, 33 Vict- ASSAULTS ON OFFICERS, ETC., SAVING WRECK. Sect. 38. — Whosoever assaults and strikes or wounds any magistrate, officer or other person whatsoever, law- fully authorized in or on acco nt of the exercise of his duty, in or concermng the preservation of any vessel in distress, or of any vessel, goods or effects wrecked, stranded, or cast on shore, or lying under water, is guilty of a misdemeanor, and shall be liable to be imprisoned in the Penitentiary for any temi not exceeding seven years, and not less than two years, or to be imprisoned 284 THE CRIMINAL STATUTE LAW. in any other gaol or place of confinement for any term less than two years, with or without hard labour. — 24 25 Vict., ch. 100, 8."37, Imp. Indictment for assaulting a Magistrate, etc., on account of the exercise of his duty in preserving wrecks That, before and at the time of the committing of the offence hereinafter mentioned, to wit, on . - „ , - ^ one J. N., then being a magistrate, was engaged in the exercise of his duty as such magistrate, in and concerning the pre- s3rvation of a certain vessel then wrecked, stranded, and cast on shore, the said J. N. being then lawfully author- ized thereunto ; and that J. S. well knowing the pre- mises, on the day and year aforesaid, in and upon the said J. N. unlawfully did make an assault, and him the said J. N. then unlawfully did strike and wound in and on account of the exercise of the said duty of him the said J. N. in and concerning the preservation of the said vessel so wrecked, stranded, and cast on shore as aforesaid, asrainst the form Prove that J. N. wAs a magistrate as stated in the indictment : that a vessel was wrecked, etc. ; that J. N. was engaged endeavouring to preserve the vessel : that J. S. struck and wounded him as stated, and that he did so on account of his doing his duty in the preservation of the vessel. This may be proved by the declarations or acts of the defendant, or by circumstances from which his motive may be inferred. — Archbold, 679. See sect. 77, post, as to fine and sureties for the peace in misdemeanors under this Act. See sects. 19, 20 and 33 of the 30 Vict., ch. o5, an act respecting wrecJc and salvage. ASSAULT WITH INTENT TO COMMIT FELONY. 285- ASSAULT WITH INTENT TO COMMIT FELONY, OR ON PEACE OFFICERS, ETC. Sect. 39 — Whosoever assaults any person with intent to commit felony, or assaults, resists, or wilfully obstructs any revenue or peace officer in the due execution of his duty or any person acting in aid of such officer, or as- saults any person with intent to resist or prevent the lawful apprehension or detainer of himself, or of any other person for any offence, is guilty of a misdemeanor, and shall be liable to be imprisoned in any gaol or place of confinement other than a Penitentiary for any term less than two years with or without hard labour. — 24- 25 Vict., ch. 100, s. 38, Imp. Revenue officers are not included in the corresponding clause of the English Act, assaults on them being, there, otherwise provided for. — Greaves, Cons. Acts, 65. And see 31 Vict., ch. 6, sect. 97 of our Statutes. Indictment. — in and upon one J. N. unlaw- fully did make an assault, and him the said J. N. did beat, wound and ill-treat with intent him the said J. N. felo- niously, wilfully and of his malice aforethought to kill and murder, and other wrongs to the said J. N. then did, to the great damage of the said J. N., against the form Add a count for a common assault. — Archbold,, 684. Every attempt to commit a felony against the persont of an individual without his consent involves an assault. Prove an attempt to commit such a felony, and prove it to have been done under such circumstances, that had the attempt succeeded, the defendant might have been con- victed of the felony. If you fail proving the intent, but prove the assault, the defendant may be convicted of the common assault. — Archbold, loc. cit. 286 Till! CRIMINAL STATUTE LAW. JNDICTMKNT FOR ASSAULTIxa A PEACE OFFICER IN THE EXECUTION OF HIS DUTY. ... .in ttud upon ono J. N., then being a peace officer, to wit, a constable (any peace officer in the execution of his duty, or any remnm officer in the execution qf his ■ duty, or any person acting in aid of) and then being in the due execution of his duty as such constable, did make an assault, and him, the said J. N., so being in the execution of his duty as aforesaid, did then beat, wound and ill-treat, and otiier wrongs to the said J. N. then did, to the great damage of the said J. N., against the form (Add a count for a common assault.) Arch- bold, loc. cit. Prove that J. N. was a peace or revenue officer, as stated in the indictment, by showing that he had acted aS such. It is a maxim of law, that " omnia prcesumuntur rite et solenniter esse acta donee probetur in contrarium,'' upon which ground it will be presumed, even in a case of murder, that a man who has acted in a public capacity or situation was duly appointed.— R. vs. Verelet, 3 Camp. 432 ; R. vs. Gordon, 1 Leach, 515 ; R. vs. Mur- phy, 8 C. & P. 297 ; R. ys. Newton, 1 0. & K. 469 j Taylor, on evidence, par. 130, 431. Prove that J. N. was in the due execucion of his duty, and the assault. If you fail in proving that J. N. was a peace officer, or that he was acting lawfully as such, the defendant may be convicted of a common assault. The fact that the defendant did not know that the person assaulted was a peace officer, or that he was acting in the execution of his duty, is no defence.~R. vs. Forbes, 10 Cox, 362. ASSAULT TO OBSTRUCT THE SALE OF GRAIN. 287 INDICTMENT FOR AN ASSAULT TO PREVENT ARREST. in and upon one J. K. did make an assault, and him, the said J. N., did then beat, wound and ill-treat with intent in so doing to resist and prevent (resist or prevent) the lawful apprehension of (himself or of any other person) for a certain offence, that is to say (state the offence generally ) against the (c&unt for common assatilt.J — Archbold, 685. It must be stated and proved that the apprehension was lawful. See R. vs . Davis, L. & C, 64. If this and the intent be not proved, a verdict of common assault may be given. But it must be remembered that resist- ance to an illegal arrest is justifiable. As to fining the offender and requiring him to giv& sureties for the peace and good behaviour. See sect. 77 post. ASSAULT WITH INTENT TO OBSTRUCT THE SALE OF GRAIN, ETC. Sect. 40. — Whosoever beats or uses any violence or threat of violence to any person with intent to deter or hinder him from buying, selling or otherwise disposing of *• or other grain, flour, meal, malt or potatoes,' or >.. ^oduce or goods, in any market or other place or b£i a. 38 any such violence or threat to any per- son having the ch*^ rge or care of any wheat or other grain flour, meaJ, 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 shall, on conviction thereof, before two Justices of the Peace, be liable to be imprisoned and kept to hard labour in any gaol or place of confinement, other than a Penitentiary, for any term not exceeding three months | provided that no person 288 TUB CRIMINAL gTATtrTB T,AW. il' •i'. i punished for any such offenco by virtue of this section shall be punished for the same offence by virtue of any other law vv^hatsoever. — 24-25 Vict., ch. 100, s. 39, Imp. The English Act has the words, or to compel him to buy, sell or otherwise dispose of, after the words, or otherwise disposing of. Section 80 enacts that all summary proceedings under this clause should bo taken uiidor ch. 31, 32-33 Vict. See 1 Burn'i Justice, 331, for a form of conviction. ASSAULT ON SEAMEN, STEVEDORES, SHIP-CARPEN- TERS, ETC. Sect. 41. — Wl'iosoever unlawfully and with force hin- ders or prevents any seaman, stevedore, ship-carpenter, or other person usually working at or on hoard any ship or vessel, from working at or exercising his lawful trade, business or occupation, or beats or uses any violence to any such person with intent to hinder or prevent him from working at or exercising the same, shall, on convic- tion thereof before two Justices of the Peace, be liable to be imprisoned and kept to hard labour, in any gaol or place of confinement other than a Penitentiary for any tenii not exceeding three months ; provided that no per- son for any such offence by reason of this section shall be punished for the same offence by any other law whatso- ever. — 24-25 Vict., ch. 100, s. 40, Imp. The words in Italics are not in the English Act, which, in lieu thereof, has the words " heelman or caster.'^ Tlie word " punished " is omitted after the words ^' provided that no person." Summary proceedings under this clause are to be taken as under the last clause. See 1 Burn's Justice, 333, for form of conviction. ASSAULTS ARISING FROM CONSPIRAOT. 289 ASSAULTS ARISINQ PROM COMBINATION OR 00N8PIHA0Y. Sect. 42. — Whosoever, in pursuance of any unlawful combination or conspiracy to raise the rate of wages, or of any unlawful combination or conspiracy respect- ing any trade, business or manufacture, or respect- ing any person concerned or employed therein, un- lawfully assaults any person, or in pursuance of any such combination or conspiracy, uses any violence or threat of violence to any person, with a view to hinder him from ivorking or being employed at such trade, business or manufacture, is guilty of a misdemeanor, and shall be liable to be imprisoned in any gaol or place of confinement, other than a Penitentiary, for any terra less than two years, with or without hard labour. — 24-25 Vict., ch. 100, 8. 41, Imp., repealed by 34-35 Vict., ch. 32, Imp. Tlie words in Italics are not in the English Act. They cover any violence or threat of violence with a view to hinder any person from working or being employed at a trade, business or manufacture, in pursuance of a com- bination or conspiracy respecting such trade, business or manufacture. Indictment for an assault in pursuance of a conspiracy to raise wages. — The jurors for Our Lady the Queen upon their oath present, that J. S., J. W., and E. W. on. . . .did amongst themselves conspire, combine, confederate, and agree together to raise the rate of wages then usually paid to workmen and labourers in the art, mystery and business of cotton spinners ; and that the said. . ..{defendants) in pursuance of the said conspiracy, on the day and year aforesaid, in and upon one J. N. unlawfully did make an assault, and him the said J. N. did then beat, wound and ill-treat, and other wrongs to the said J. N. did, to the 290 THE CRIMINAL STATUTI LAW. great damage of the said J. N., against the form .... (Add a count stating that the defendants assaulted J. N. " in pursuance of a certain conspiracy before then entered into by the said (defendants) to raiso the rate of wages of workmen and labourers in the art, mystery and business of cotton-spinners j" also a count for a common assault.) — Archbold, 686. For a number of workmen to combine to go in a body to a master and say that they will leave the works, if ho does not discharge two fellow workmen in his employ is an unlawful combination by threats to force the prose- cutor to limit the description of his workmen. Walsby vs. Auley, 3 E. & E. 616. And a combination to endea- vour to force workmen to depart from their work by such a threat as that they would be considered as blacks, and that other workmen would strike against them all over London, is unlawful—Ex parte Perham, 5 H. &N. 30. So also is a combination with a similar object to threaten a workman by saying to him that he must either leave his master's employ, or lose the benefit of be- longing to a particular club and have his name sent round all over the country — O'Neil vs. Longman, 4 B. & S. 476. An indictment or commitment alleging the oiTence to be a conspiracy to force workmen to depart from their work by threats need not set out the threats. — ^Ex parte Perham, supra. As to fining the offender, and requiring sureties, in certain cases, for the peace and good behaviour, see sect. 77, post. We have now additional enactments (the above clause is not repealed) on these offences, by the 35 Vict., ch. 31 (Ottawa, 1872,) being an Act to amend the Criminal law relating to violence, threats and molestation, copied on the English Act, 34-35 Vict., ch. 32. A88AULT8 ARISING FBOM OONBPIRAOY. 801 Sect. 1— provides that every person who uses violence to any person or property, or threatens or intimidateg any person in such manner as would justify a Justice of the Peace, on complaint made to him, to bind over the person so threatening or intimidating to keep the peace, or molests or obstructs any person in the manner defined by this section, shall be guilty of an offence against this statute, and shall be liable to imprisonment, with or without hard labour, for a term not exceeding three months, if these acts are done with a view to coerce such person— 1st. Being a master, to dismiss or cease to employ any workman, or being a workman, to quit any employment, or to return work before it is finished.— 2nd. Being a master, not to offer, or being a workman, not to accept any employment or work.— 3rd. Being a master or workman to belong to, or not to belong to, any temporary or permanent association «r combination. 4th. Being a master or workman, to pay any fine or penalty imposed by any temporary or permanent associa- tion or combination.— 5th. Being a master, to alter the mode of carrying on his business or the number or description of any persons employed by him. Par. 4 — of the same section enacts that, for the purposes of this Act, a person shall be deemed to molest or obstruct another person in any of the following cases, that is to say: — if he persistently follows such other person about from place to place :— if he hides away tools, clothes or other property owned or used by such other person, or deprives him of, or hinders him in the use thereof :— if he watches or besets the house or place where such other person resides or works or carries on business, or hap pens to be, or the approach to such house or place, or if with two or more other persons he follows such other 292 TBB CRIMINAL BTATUTB LAW. person in a disorderly manner in or through any street or road. Par. 6 — declares that nothing in this section shall pre- vent any person from being liable imder any other Act, to any other punisViment than is provided for any offence by this section ; provided that no person shall be liable to any punishment for doing or conspiring to do any act, on the ground that such act restrains or tends to restrain the free course of trade, unless such act is one of the acts hereinbefore specified in this section, and is done with the object of coercing as hereinbefore mentioned. The above proviso appears to amend and idter, if not repeid, sect. 42, of ch. 20, 32-33 Vict., though it is not given as so doing ; but sect. 6 repeals so much of any act or law as may be inconsistent with this Act. Sects. 2, 3, 4, enact that all offences under this Act shall be prosecuted under the provisions of ch. 31, 32-38 Vict., and provide for the procedure under the Statute. Ab above remarked the English Act repoulod expresaly sect. 41 of the Act concerning offences against the person, 24-26 Vict., ch. 100. In Reg. vs. Bunn et al, 12 Cox, 316, it was held that, notwithstanding 34-35 Vict., ch. 32, Imp. (above mentioned) and the Trades Union Act, 34-36 Vict., ch. 81, Imp., an indictment would lie, at common law, for conspiracy against servants of a Gas company under contract of service, who, being offended by the dismissal of a fellow servant, agreed together to quit the service of their employers, without notice and in breach of their contract of service, by reason of which the Company were seriously impeded in the conduct of their business. These two Statutes being now incorpo- rated in our own law, this decision applies fully to this country. — Our Trade Union Act, is the 35 Vict., ch. on SUMMARY CONVICTION FOE COMMON ASSAULTS, 293 SUMMARY CONVICTION FOB COMMON ASSAUWS. Sect. 43.-— Where any person unlawfully assaults or boats any other person, any Justice of the Peace upon complaint by or on behalf of the party figgneyed, praying him to proceed summarily on the complaint, may hear and determine such offence, and the oflfeuder shaU, upon conviction thereof before him, at the discretion of the Justice either be committed to any gaol or place of con- finement other than the Penitentiary, there to be impri- soned, with or without hard labour, for any term not exceeding two months, or else shall forfeit and pay such fine as shall appear to such Justice to be meet, not ex- ceeding the sum of twenty dollars, together with costs (if ordered) ; and if such fine so awarded, together with the costs (if ordered) are not paid either unmediately after the conviction or within such period as the said Justice shall, at the time of the conviction, appoint, he may com- mit the oflfender to any gaol or place of confinement other than a Penitentiary, there to be imprisoned for any term not exceeding two months^ unless such fine and costs be sooner paid.— 24-25 Vict., ch. 100,8. 42, Imp. Sect. 44. — If the Justice upon the hearing of any case of assault or battery upon the merits, where the complaint was preferred by or en behalf of the party aggrieved, under the last preceding section, deems the offence not to be proved, or finds the assault or battery to have been justified or so trifling as not to merit any punishment^ and accordingly dismisses the complaint, he shall forth- with make out a certificate under his hand, stating the fact of such dismissal, and shall deliver such certificate to the party against whom the complaint was preferred. —24-26 Vict., ch. 100. s. 44. Tmn. — / r • J 5'',; ' 294 THE CRIMINAL STATUTE LAW. Sect. 45. — If any person against whom any such com- plaint, as in either of the last two preceding sections mentioned, has been preferred, by or on behalf of the party aggrieved, has obtained such certificate, or having been convicted, has paid the whole amount adjudged to >e paid, or has suffered the imprisonment, or imprison- ment with hard labour awarded, in every such case he shall be released from aU further or other proceedings, civil or criminal, for the same cause. — 24-25 Vict., ch. IOC, s. 45, Imp. Sect. 46. — Provided that in case the Justice finds the assault or battery complained of to have been accompanied by an attempt to commit felony, or is of opinion that the same is, from any other circumstance, a fit subject for prosecution by indictment, he shall abstain froLx any adjudiaation thereupon, and shall deal with the case in aU respects in the same manner as if he had no authority finally to hear and determine the same. Provided also that nothing herein contained shaU authorize any Justice to hear and determine any case of assault or battery, in which any question shall arise as to the title to any lands, tenements, hereditaments or any interest therein or accruing therefrom, or as to any bankruptcy or insolvency or any execution under the process of any Court of Justice. — 24-25 Vict., ch. 100, s. 46, Imp. The words praying him to proceed summarily on the complaint in section 43, are not in the English Statute. There does not seem to exist any other way of interpre- ting them than to say that the complainant, by his com- plaint, must have prayed the Justice to proceed summa- rily upon it to authorize him to do so. If there is no such prayer, the Justice has no jurisdiction to proceed summarily, and hear and determine the case. He must then treat the case, as one on an indictable offence, and SUMMABT CONVICTION fOE COMMON ASSAULTS. 295 proceed under chap. 30, instead of under chap. 31, 32 33 Vict. For, it must not be forgotten that a common assault remains an indictable offence. Sect. 1 of chap. 31, 32- 33 Vict, it is true, authorizes the Justice of the Peace who receives an information concerning an offence for which the offender is liable by law to be summarily tried and punished, to issue his summons and proceed to trial. But, the defendant, accused of an assault, is not liable by law to be so tried and punished, where by his complaint or information, his accuser has not prayed the Justice of the Peace to proceed summarily, and the Justice in such a case must proceed under chap. 30. He has no power,, no authority to do otherwise. If he could proceed summarily, without the complain- ant's consent and demand, there would be no means for a party aggrieved, then, to bring a case of assault before a Jury, if the Justice of the Peace had only to say : " I will decide this case, and whether you like it or not, it will not go before a j ury." He could force the complain- ant to give his evidence, he could summon the witnesses,, hear the evidence, and give his judgment ; and, perhaps all this to protect the defendant ; because, it must be^ remembered that by sect. 45, this judgment would be a, bar to any other proceeding. A decision contrary to these views is cited dy Mr.. Clarke, in his treatise of the Criminal Law of Canada. It, is the case of Reg. vs. Shaw, 23 Upper Canada, Q. B. 616. It is hard to conceive how a want of jurisdiction' appearing on the face of the proceedings must be shewn! on affidavit, as is reported to have been held in that case. See Paley, on Convictions, 55, 56. The words by or on behalf, in ^ct. 4 enable parents; and others to complain on the p t of an injured child. ^206 THE OEIMINAL STATUTE LAW. Sect. 80, post, regulates the procedure in prosecutions ,nd he cannot inquire into or adjudicate upon an excess of force or vio- lence which may be used in the assertion of a title to lands. — Reg. vs. Pearson, 11 Cox, 493. See 32-33 Vict., ch. 32, for the trial, under certain cir- cumstances, of assaults upon females, or upon males not. exceeding fourteen years of age. COMMON ASSAULT. — ^ASSAULT OCCASIONING BODILY HARM. Sect. 47. — Whosoever is convicted upon an indictment of any assault occawioning actual bodily harm, shall be liable to be imprisoned in the Penitentiary for any term not exceeding three years and not less than two years, or to be imprisoned in any other gaol or place of confine- ment for any term less than two years, with or without hard labour ; and whosoever is convict 1 upon an in- dictment for a common assault, shall be liable to be im- prisoned in any gaol or place of confinement other than a Penitentiary, for any term not exceeding one year, with or without hard labour. — 24-25 Vict., ch. 100, 8. 47, Imp. Indictment for an assault occasioning actual bodily harm. — That J. S. on in and upon one J. N. did make an assault, and him the said J. N. did then beat, wound and ill-treat, thereby then occasion- ing to the said J. N. actual bodily harm, and other wrongs COMMON ASSAULT OOOASIONINO BODILY HARM. 29» to the said J. N. then did, to the great damage of the said J. N. against the form — Archbold, 657. Indictment for a common assault. — That C. D. on the at in and upon one A. B. an assault did make, and him the said A. B. then and there did beat, wound and illtreat, and then and there to him other wrongs and injuries did, against the form The defendant may be convicted of a common assault upon an indictment for occasioning actual bodily harm. R. vs. Oliver, Bell, 287 5 R. vs. Yeadon, L. & C. 281. The intent to do bodily harm, or premeditation, is not necessary to convict upon an indictment, under this section : thus a man who commits an assault the result of which is to produce bodily harm is liable to be con- victed under this section, though the jury find that the bodily harm formed no part of the prisoner's intention, and was done without premeditation, under the influence of passion. — R. vs. Sparrow, Bell 298. An assault is an attempt or offer, with force and vio- lence, to do a corporal hurt to another, whether from ma- lice or wantonness ; as by striking at him with or without a weapon, though the party striking misses his aim ; so drawing a sword, throwing a bottle or glass, vsdth intent to wound or strike, presenting a loaded gun or pistol at a person within the distance to which the gun or pistol will carry, or pointing a pitchfork at a person standing within reach ; holding up one's fist at him, in a threaten- ing or insulting manner, or with such other circumstances as denote at the time an intention, coupled with a pre- sent ability, of using actual violence against his person, will amount to an assault.— 1 Burn's Justice 308. It had been said that the presenting a gun or pistol at a person within the distance to which it will carry, though in fact not loaded, was an assault- but later authorities soo THB CRIMINAL STATUTX LAW. T; f » 5 htive held that if it be not loaded it would be no assault to present it and pull the trigger. — 1 Bum's Justice, loc. cit. One charged with an assault and battery may be found guilty of the assault, and yet acquitted of the battery ; but every battery includes an assault ; therefore on an indictment for assault and battery, in which the assault is ill-laid, if the defendant be found guilty of the battery it is sufficient. — 1 Hawk. 110. Mere words will not amount to an assault, though perhaps they may in some cases serve to explain a doubt- ful action. — 1 Burn's Justice 309. If a man strike at another, but at such a distance that he cannot by possibility touch him, it is no assault. But if A advances it a threatening attitude with his fists clenched towards B, with an intention of striking him, so that his blow would have almost immediately reached B, if he had not been stopped by a third person ; this would be an assault in point of law, though at the par- ticular moment when A was stopped, he was not near enough for his blow to take effect. — Stephen vs. Meyers, 4 C. & P. 349. To collect a number of workmen round a person who tuck up their sleeves and aprons and threaten to break his neck, if he did not go out of the place, through fear of whom he did go out, amounts to an assault. There is the intention and present ability and a threat of violence causing fear. — Read vs. Coker, 13 C. B. 850. So riding after a person and obliging him to run away into a garden to avoid being beaten is an assault.— Martin vs. Shoppee, 3 C. & P. 373. Any man wantonly doing an act of which the direct ■consequence is that another person is injured commits an OOMM N ASSAULT OC0A8IONINO BODILY HARM. 301 assault at common law, though a third body is interposed between the person doing the act and the person injured. Thus to drve a carriage against another carriage in which a person is sitting, or to throw over a chair on which a person is sitting, whereby the person in the carriage or on the chair, as the case may be, is injured, is an assault' So by encouraging a dog to bite, or by wantonly riding over a person with a horse, is an assault. — 1 Bum's Justice 309; 1 Russ. 1021. Where an act is done with the consent of the party it is not an assault ; for in order to support a charge of assault, such an assault must be proved as could not be justified if an action were brought for it, and leave and licence pleaded ; attempting therefore to have connection with a girl between the ages of ten and twelve, or under ten years of age, if done with the girl's consent, is not an assault. If the girl is between ten and twelve, the indict- ment in such a case should be for an attempt to commit a misdemeanor : if the girl is under ten, the indictment should be for an attempt to commit a felony.— 1 Russell, 933. 1023 ; Reg. vs. Martin, 9 C. & P. 213 ; Reg. vs. Meredith, 8 C. & P. 589 ; Reg. vs. Cockbum, 3 Cox 543 ; Reg. vs Mehegan, 7 Cox 145 ; Reg. vs. Read, 1 Ben. C. C. 377 j Reg. vs. Johnston, 10 Cox 114, L. & Cave 632 ; Reg. vs. Ryland, 11 Cox 101 ; Reg. vs. Guth- rie, 11 Cox 523. By s. 49 of the Procedure Act of 1869, the defendant may be convicted of the attempt to com- mit the offence charged upon any indictment for any fe- lony or misdemeanor, if the evidence waiTants it, and the fact that the girl consented is immaterial, upon an indictment for an attempt to commit the felony or the misdemeanor.^Reg. vs. Beale, 10 Cox, 157. In Reg. vs. Wollaston, 12 Cox 182, KeUy, C. B. said : 302 THE OEiaONAL STATUTE LAW. " If anything is done by one being upon the person of another, to make the act an assault it must be done with- out the consent and against the will of the person upon whom it is done. Mere submission is not consent, for there may be submission without consent, and while the feelings are repugnant to the act being done. Mere submission is to- tally different from consent. But in the present case, there was actual participation by both parties in the act done, and complete mutuality :" and the defendant was acquitted as the boys, aged above fourteen, u pon whom he was accused of having indulged in indecent practices, had been willing and assenting parties to what was done. But if resistance be prevented by fraud, it is an assault. If a man, therefore, have connection with a married wo- man,under pretence of being her husband, he is guilty of an assault.— Eeg. vs. Williams, 8 C. & P. 286 ; Reg. vs. Saunders, 8 C. «fc P. 265. In Reg. vs. Mayers, 12 Cox, 311, it was held that if a man has or attempts to have connection with a woman while she is asleep, it is no defence that she did not resist, as she is then incapable of resisting. In Reg. vs. Lock, 32 Cox 244, upon a case reserved, it was held, that the definition of an assault that the act must be against (he will of the patient implies the possession of an active will on his part, and therefore, the mere submis- son by a child of tender years (eight years old) to an indecent assault, without any active sign of dissent, the child being ignorant of the nature of the assault, does not amount to consent so as to take the offence out of the operation of criminal law. In Reg. vs. Woodhurst, 12 Cox, 443, on an indictment for carnal knowledge of a girl above ten years of age and under twelve, and also for an assault, it was held on COMMON ASSAULT OCCASIONING BODILY HARM. 303 the latter count that although consent would be a defence, consent extorted by terror or induced by the influence of a person in whose power the girl feels herself, is not really such consent as will have that effect ; following R. vs. Day, 9 C. & P. 722 ; R. vs. Nicholl, Russ. & Ry. 130; R. vs. Rosinski, 1 Mood 19 j R. vs. Case, 1 Den 580. An unlawful imprisonment is also an assault ; for it is a wrong done to the person of a man, for which, besides the private satisfaction given to the individual by action, the law also demands pubhc vengeance, as it is a breach of the King's Peace, a loss which the State sustains by the confinement of one of its members, and an infringement of the good order of society.— 4 Blackstone, 518.— It has been supposed that everj^ imprisonment includes a battery, but this doctrine was denied in a recent case, where it was said by the Court that it was absurd to contend that every imprisonment included a battery .—1 Russell, 1025. A battery in the legal acceptation of the word includes beating and wounding— Archbold, 659.— Battery seemeth to be, when any injury whatsoever, be it ever so smaU, is actually done to the person of a man in an angry or revengeful, or rude, or insolent manner, as by spitting in his face, or throwing water on him, or violently jost- ling him outof the way.— 1 Hawkin ch. 15, sec. 2.— For the law cannot draw the line between different degrees of vio- lence, and therefore totally prohibits the first and lowest stages o; it, every man's person being sacred and no other having a right to meddle with it in any the slightest manner.— 1 Russell, 1021. The touch or hurt must be with a hostile intention, and therefore, a touch given by a constable's staff for the pur- pose of engaging a person's attention only is not a bat- tery.— 1 Burn, 312. fl 304 TUJB caiMlNAL HTAXUTX LAW, 1 ^ Whether the act shall amount to an assault must in every ctyse be collected from the intention, and if the in- jury committed were accidental and undesigned it will not amount to a battery. — 1 KusseU, 1026. Striking a horse whereon a person is riding and where- by he is thrown, is a battery on him, and ^he rider is jus- tified in striking a person who wfongfully .seizes the reins of his horse, and in using all the violence necessary to make him loose his hold. A wounding is where the vio- lence is such that the flesh is opened : a mere scratch may constitute a wounding. — 1 Bum, loc. cit. The actual bodily harm mentioned in this section would include any hurt or injury calculated to interfere with the health or comfort of the prosecutors ; it need not be an injury of a permanent character, nor need it amount to what would be considered to be grievous bodi- ly harm. — Archbold, 660. Even a mayhem is justifiable if committed in a party's own defence. But a person struck has merely a right to d^end himself, and strike a blow in his defence, but he has no right to revenge himself j and, if, when all the danger is past, he strikes a blow not necessary, he com- mits an assai It and battery. Aid in no case should the battery be more than necessary for self defence. — 1 Bum's Justice, 312. The mere offer of a person to strike another is suffi- cient to justify the latter's striking him: he need not stay till the other has actually struck him. A husband may justify a battery in defence of hi» wife, a wife in defence of her husband, a parent in de- fence of his child, a child in defence of his parent, a master in defence of his servant and a servant in defence of his master, but in all these cases the battery must be such only as was necessary to the defence of the party COMMON ASSAULT OOOASIONINO BODILY HABM. 30ft or luB relation, for it were excessive, if it were greater than was necessary for mere defence, the prior offence will be no justification. So a person may lay hands upon another to prevent hini from fighting, or commit* ting a breach of the peace, using no unnecessary violence. If a man without authority attempt to arrest another illegally, it is a breach of the peace, and any other per- son may lawfully interfere to prevent it, doing no more than is necessary for that purpose. Churchwardens and private persons are justified in gently laying their hands on those who disturb the per- formance of any part of divine service and turning them out of church.— 1 Burn's Justice, 314. A parent may in a reasonable manner chastise his child, or a master his servant, or a schoolmaster his scholar, or a gaoler his prisoner, and a captain of a ship, any of the crew who have mutinously or violently mis- conducted themselves. — 1 Burn's Justice, loc. cit. So might a military officer order a moderate correc- tion for disobedience of orders.— 1 Burn's Justice, loc; cit. A party may justify a battery by showing that he committed it in defence 6f his possession, as for instance, to remove the prosecutor out of his close or house, or to remove a servant, who, at night, is so misconducting himself as to disturb the peace of the household,— or to remove a person out of' a public house, if the party be misconducting himself, or to prevent him firom entering the defendant's close or house,-Tto restrain him from tak- ing or destroying his goods,— ^Crom taking or rescuing cattle, &c., &c., &c., in his custody upon a distress, — or to retake personal property improperly detained or taken away,— or the like. In the case of a trespass in law merely without actual 306 THE CRIMINAL STATUTU LAW. force, the owner of the close, or house, &c., &c., &c., must first request the trespasser to depart, before he can justify laying his hands on him for the purpose of remov- ing him ; and even if he refuse, he can only justify so much force as is necessary to remove him. But if the trespasser use force, then the owner may oppose force to force ; and in such a case, if he be assaulted or beaten, he may justify even a wounding or mayhem in self-de- fence, as above mentioned. In answer to a justification in defence of his possession, it may be shown that the battery was excessive, or that the party assaulted, or some one by whose authority he acted, had a right of way or other easement over the close, or the like. — 1 Burn, 313 ; Archbold, 661. On this part of the subject, 1 Eussell, 1028 has the following remarks : " It should be observed with respect to an assault by a man on a party endeavouring to dispossess him of his land, that where the injury is a mere breach of a close, in contemplation of law, the defendant cannot justify a battery without a request to depart j but it is otherwise where any actual violence is committed, as it is lawful in such a case to oppose force by force ; therefore if a person break down the gate, or come into a close vi et armiSy the owner need not request him to be gone, but may lay hands on him immediately ; for it is but returning violence with vio- lence. If a person enters another's house with force and violence, the owner of the house may justify turning him out, using no more force than is necessary, without a previous request to depart; but if the person enters quietly, the other party cannot justify turning him out "without previous request." It appears to have been formerly holden that a person could not be prosecuted upon one indictment for assault- ing two persons, each assault being a distinct ofifence : RAPE. 307 but a subsequent decision has established the contrary.— 1 Russell, 1030. See ante remarks on sects. 43, 44, 46, 46. By sect. 77, post, when any person is convicted of any misdemeanor punishable under this Act, the Court may in addition to or in lieu of any punishment authorized by this Act fine the offender, and require liim to enter into his own recognizances, and to find sureties, both or either for keeping the peace, and being of good behaviour, and sects. 78 and 79,2)ost, provide that, when any personis con- victed onany indictmentof anyassault,the Court may order payment by the defendant of the prosecutor's costs, and enact how such costs shall be levied. See 32-33 Vict., ch. 32, for assaults upon any male child aged not more than fourteen, or upon any female, not amounting to an assault with intent to commit rape, and the trial of persons charged thereof in certain cases. —24-25 Vict., ch. 100, s. 43 Imp. COURT OF QUARTER SESSIONS NOT TO TRY CERTAIN OFFENCES. Sect. 48.— This section has been noticed, ante, under sections 27, 28 and 29. RAPE. Sect. 49 as amended by .JG Vict., ch. 50.— Who- soever commits the crime of nipe is guilty of felony, and shall be liable to suffer death as a felon, or to be impri- soned in the Penitentiary for life, or for any term not less than seven years ; and whosoever assaults any woman or girl with intent to commit rape is guilty of a misde- meanor, and shall be liable to be imprisoned in the Peni- tentiary for any terra not exceeding seven years, and not u 308 THE CRIMINAL STATUTE LAW. less than two years, or to be im{)risoned in any other gaol or ])lace of confinement tor any term less than two ye.irs, with or without hard labour. — 21-25 Vict., ch. 100, sect. 48, Imp. Sect. Co. — Carnal knowledge defined. — Whenever, upon the trial of any offence, punishable under this Act, it is necessary to prove carnal knowledge, it sliall not be necessary to prove tht. actual emission of seed in order to constitute a carnal knowledge, but the carnal knowledge sh.dl be deemed complete on proof of any degree of pene- triition only. — 24-25 Vict., ch. 100, sect. G3, Imp. Indictnient. — That A. B., on in the year in and u[)on one C. D. in the peace of God and Our Lady the Queen then and there being, violently and feloniously did make an assault, and her, the said C. D., violently and against her will feloniously did ravish and caruidly know ; against the form of the Statute in such case made and provided, and against the peace of Our Liidy the Queen, her crown and dignity. — Archbold, 704. Not triable at Quarter Sessions ; sect. 12, Procedure Act of 1809. Rape has been defined to be the having unlawful and carnal knowledge of a woman, by force, and against her will. 1 Russell, 904. Against her will means ivithouther consent. — \ Russell 906, 908 ; Roscoe, 805. To constitute the offence there must be a penetration, or res In re, in order to constitute the "carnal know- lodge" which is a necessary part of this offence. But a very slight penetration is sufficient, tliough not attended WMth the deprivation of the marks of virginity. — 1 Russell, 912. ^\ i)oy under fourteen years of age is presumed by law RAPE, 309 incapable to commit a rape, and therefore he cannot be guilty of it, nor of an assault with intent to commit it; and no evidence is admissible to show that, in point of fact, he could commit the offence of rape. A husband cannot be guHty of a rape upon his wife. The offence of rape may be committed, though the woman at last yielded f-^ the violence, if sucli her consent was forced by fear of death or by duress. It will not be any excuse that the woman was first taken witli her own consent if she were "afterwards forced against her will ; nor will it be an excuse that she consented after the fact, or that she was acommon strum- pet, or the concubine of the ravisher. Circumstances of this kind, however, though they do not necessarily pre- vent the offence from amounting to a rape, yet are mate- rial to be left to the jury, in favour of the party accused especially in doubtful cases. The notion that if the woman conceived^it could not be a rape, because she must, in such case, have consented, appars to be quite exploded. — 1 Russell, 905. Having carnal knowledge of a woman by a fraud which induces her to suppose it is her husband does not amount to a rape. Keg. vs. Williams, 8 C. & P. 280 • Reg. vs. Clarke, Dcarsly 397; 1 Russell, 908; Reg! vs. Barrow, 11 Cox, 191. In this last case, the woman, with her baby in her arms, was lying in bed between sleeping and waking, and her husband was asleep beside her. She was com- pletely awakened by a man having connection with her, and pushing the baby aside. Almost directly she was completely awakened, she found the man was not her husband, and awoke her husband. The Court of Crimi- nal Appeal, composed of Bovill, C. J., and ChaniieH, 310 THE CRIMINAL STATUTE LAW^ Byles, Blackburn and Lush, J.J., held that a convictiow for a rape upon this evidence couL" ot be sustained, 8ee also Rex vs. Jackson, Russ. & Ry. 487. Upon the trial of an indictment for rape upon an idiot girl, the proper direction to the jury is that if they are satisfied that the girl w^as in such a state of idiotcy as to be incapable of expressing either consent or dissent, and that the prisoner had connection with her without her consent, it is their duty to find hira guilty. — ^Reg, vs, Barratt, 29 L. T. N. 8. 409 : 12 Cox, 498. Tn Reg. vs. Fletcher, 10 Cox, 248, the law was so given, but the evidence of non-consent was declared insuflicient. If a woman is incapable of resisting, it is no defence that she did not resist. Reg. vs. Fletcher, 8 Cox, 131 : Bell C. C. 63 ; R. vs. Oamplin, 1 Den. 99. If a man has or attempts to have connection with a woman while she is asleep, it is no defence that she did not resist, as she is then incapable of resisting. The man can there- fore be found guilty of a rape, or of an attempt to com- mit a rape— Reg. vs. Mayers, 12 Cox C. C. 311. It is clear that the party ravished is a competent wit- ness. But the credibility of her testimony must be left to the jury, upon the circumstances of fact which con- cur with that testimony. Thus if she be of good fame : if she presently discovered the offence, and made search for the offender : if she showed circumstances and signs of the injury, whereof many are of that nature that women only are proper examiners : if the place where the fact was done were remote from inhabitants or pas- sengers: if the party accused fled for it: these, and the like, are concurring circumstances, which give greater probability to her evidence. But if, on the other hand, the witness be of evil fame, and stand unsupported by »APB. 311 others: if without being under the control or the influ- ence of fear, she concealed the injury for any consider- 4ible time after she had the opportunity of complaining: if the place where the fact is alleged to have been com- mitted was near to persons by whom she might probably have been heard, and yet she made no outcry : if she has given wrong descriptions of the place : these, and the lilie circumstances, afford a strong, though not con- clusive presumption that her testimony is feigned.— 1 Russell, 692. The character of the prosecutrix, as to general chastity, may be impeached by general evidence, as by showing her general light character, etc., etc., but evidence of -connection with other persons than the prisoner cannot be received. In Reg, vs. Hodgson, Russ. & Ry. 211, the woman in the witness box was asked : Whether she had not be- fore had connection with other persons, and whether she bud not before had connection with a particular person (named.) The Court ruled that she was not obliged to answer the question. In the same case, the prisoner's counsel offered a witness to prove that the woman had been caught in bed about a year before this charge with a young man. The Court ruled that this -evidence could not be received. These ruhngs were subsequently maintained by all the judges. Although you may cross-examine the prosecutrix as to particular acts of connection with other men ; (and she need not answer the question, unless she lilies,) you can- not, if she deny it, call witnesses to contradict her.— Reg. vs. Cockcroft, 11 Cox, 410. -Mn the trial of an indictment for an indecent assault, the defence being consent on the part of the prosecutrix. 312 THE CRIMINAL STATUTE LAW. she denied on cross-excamination having^ had intercourse with a third person, S. Held that S. could not be ex- amined to contradict her upon this answer. This rule- apph'es to cases of rape, attempt to commit a rape, andf indecent assaults in the nature of attempts to commit » rape. — Reg. vs. Holmes and Furness, 12 Cbx C. C^ 137. This decision is by the Court of Criminal Appeal^ composed of five judges, confirming Rex. vs. Hodgson, and Reg. vs. Cockcroft. The case of Reg. vs. Robins, 2- Moo.^ and Rob. '!>12-, isnovr averruled. Taylor, Evidence, par. 336. It is true, rape is a most detestable crime, and there- fore ought severely and impartially to be punished with death, but it must be remembered that it is an accusa- tion easily to be made and hard to be proved, and harder to be defended by the party acciKsed, though never sO' innocent. — 1 Hale 634. Upon an indictment under the first part of this section- the jury may find the prisoner guilty of an attempt to commit a rape. — Reg, V8» Hapgood, 11 Cox, 471; Proce- dure Act of 18G9, sect. 49 — or may find a verdict of common assault, sect. 51 of the same Act. Under the second part of the section, for an assault with intent to commit rape (misdemeanor)- the indict- ment can be as follows : in and upon one A- B., a woman, (or girl) unlawfully did make an assault, with intent her, the said A. B., violently and against her will,, feloniously, to ravish and carnally know, against the form. -Add a count for a common assault. — Arch- bold, 684. See sect. 77, posty for fine and sureties.. If upon trial- for tliis misdemeanor, the felony under the first part of the section be proved, the defendant m ih PROCCRINQ THE DEFlIiEMENT OB A WOMAN OR GIRL. 313 not therefore entitled to an acquittal. — Procedure Act of 18G9, sect. 50. On an indictment for an assault with intent to commit a rape, Pateson J., held that the evidence of the prisoner, having, on a prior occasion, taken liberties with the prosecutrix, was not receivable to show the prisoner's inteni ; also, that in order to convict of assault with intent to commit rape, tlie jury must be satisfied not only that the prisoner intended to gratify his passion on the person of the prosecutrix, but that he intended to do 80 at all events, and notwithstanditig any resistance on her part. — R. vs. Loyd, 7 Car. & P. 318. PROCURING THE DEFILEMENT OF A WOMAN OR OIRI^ UNDER TWENTY-ONE YEARS OF AGE. Sect. 50. Whosoever by false pretences, false repre- sentations, or other fraudulent means, procures any woman or girl under the age of twenty-one years, to have illicit carnal connection with any man other than the procurer, is guilty of a misdemeanor, and shall be liable to be imprisoned in any gaol or place of confine- ment, other than the penitentiary, for any term less than two years, with or wit lOut hard labour. 24-25 Vic, ch. 100, sect. 49, Imp. Indictment That J. S. on the first day of June, in the year of our Lord. . . .by falsely pretending and representing unto one A. B., that. . . .(here set out the false pretences or representations) did procure the said A. B. to have illicit carnal connection with a certain man named. .. .('or to the jurors aforesaid imhioivn) she, the said A. B., at the time of such procurement, being then a woman {or girl) under the age of twenty- one years, to wit, of the age of. whereas in truth 314 THE CRIMINAL STATUTE LAW. and in fact (negative the pretences or representations) against Archbold, 707. The pretences and representations made by the defen- dant must be proved, as well as their falsehood. Also, that by means of these false pretences or representations, the defendant induced the woman, or girl, to have carnal connection with the man named in the indictment, and that she was then under twenty-one. A boy must not be under fourteen years of age to be indictable under this clause. — See section 77, post, as to fine and sureties.— On the trial of an indictment under this section, the prisoner may be convicted of an attempt to commit the offence, under sect. 49 of the Procedure Act of 1869. CARNALLY ABUSING CHILDREN UNDER TEN YEARS OF AGE. Sect. 51. Whosoever unlawfully and carnally knows and abuses any girl under the age of ten years, is guilty of felony, and shall suffer death as a felon.— 24-25 Vic, ch. 100, sect. 50, Imp. Indictment in and upon one A. K., a girl under the age of ten years, to wit, of the age of nine years, feloniously did make an assault, and her, the said A. N., then and there feloniously did unlawfully and carnally know and abuse, against the form Archbold, 708. Not triable at Quarter Sessions ; sect. 12, Procedure Act of 1869. Sect. 77, x>ost, does not apply to this clause, as the crime provided for is a capital felony. The evidence is the same as in rape, with the excep- tion that the consent or non-consent of the girl is immaterial. — Archbold, t 9. Upon the trial of an indictment under this clause, the jury may, under sect. 51 of the Procedure Act of 1869 find the defendant guilty of a common assault, in certain CARNALLY i^I! SINO A GIRL ABOVE TEN. 316 cases. But no such verdu t can be returned, if the girl assented. Reg. vs. Read, 1 Den. 377. Under sect. 49 of the Procedure Act of 18G9, the defendant may be convicted of an attempt to commit the offence ciiarged, if the evidence warrants it A boy under fourteen years of age cannot be convicted of this offence, nor of the attempt to commit it. — 1 Russell 931. CARNALLY ABUSING A GIRL ABOVE TEN AND UNDER TWELVE YEARS OF AGE. « Sect. 52. — Whosoever unlawfully and carnally knows and abuses any girl being above the age of ten years and under the age of twelve years is guilty of a misdemeanor, and shall be li.ible to be imprisoned in the Penitentiary for any term not exceeding seven years and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour. — 24-25 Vict., ch. 100, s. 51, Imp. Indictment. — in and upon one A. N., a girl above the age of ten years and under the age of twelve years, to wit, of the age of eleven years, unlawfully did make an assault, and her the said A. N. did then unlaw- fully and carnally know and abuse, against the form — Archbold, 709. Same evidence as in rape ; but it will be no defence that the girl consented. Remarks under preceding section are applicable here ; but section 77. post, of this same Act applies. An indictment charged that G in and upon D, a girl above the age of ten, and under the age of twelve, unlaw- fully did make an assault, and her, the said D, did then unlawfully and carnally know and abuse. Held by the Court of Criminal Appeal, that the indictment contained :m 316 THE CRIMINAL STATUTE LAW. two charges, one of coinirion nssnult, and the othor of the stiitiitubh) rnisdemenuor (nndor this section), and tliat the prisoner might he convict(!d of aconiinon assault upon it, as no consent on the [)art of the girl hasen to make use of them. It was held that upon this finding, the conviction could not be sup- ported. — R. vs. Briggs, Dears, and Bell 98. On this last case. Greaves, 1 Russell 370, note 1, remarks : — " The case wus argued only on th > part of the prisoner, and the Court studiously avoided determining on which side the onus of proof as to the knowledge of the first husV md being alive lay, and yet the point seems very clear. It is plain that the latter part of the section in the 9 Geo. 4, ch. 31, s. 22 and in the new Act is in the nature of proviso. (32-3;3 Vict., ch. 20, s. 58, Can- ada.) Now no rule is better settled than that if an (excep- tion comes by way of proviso, whether it occurs in a 382 THE CRIMINAL 8TATUT11 LAW. flubsequent part of the Act, or in a subsequent part of the same section containing the enactment of the offence, it must be proved in evidence by the party relying upon it. Hence it is that no indictment for bigamy over nega- tives tlie excei)tions as retained in the proyiso, and hence it follows tliat the proof of those exceptions lies on the prisoner ; if it was otherwiNo, the prosecutor would have to prove more than he has alleged. Then the proviso in terms requires proof both of the absence of the party for seven years, and that Ihe party shall not have been known by the prisoner to have been living within that time, and consequently it lies on the prisoner to give evidence of huth 5 and as the Legislature has required proof of both, it never could have been intended that proof of the one should be sufficient evidence of the other. Wlien, however, the prisoner has given evidence to nega- tive his knowledge that the party is alive, the onus may be thrown on the prosecutor to show that he had that knowledge; and in accordance with this view is the dictum of Willes, J, in Reg. vs. EUis, 1 F. and F. 309 that 'if the husband has been living apart from his wife for seven years, under such circumstances as to raise a probability that he supposed that she was dead when he vvas re-married, evidence may be necessary that he knew his first wife was alive.' As to the manner in which the case should be left to the jury, it should seem that the proper course is to ask them whether they are satisfied that the prisoner was married twice, and that the person whom he first married was alive at the time of the second marriage ; and, if they are satisfied of these facts, to tell them that it then lies upon the prisoner to satisfy them that there was an absence for seven years, and also that <3uring the whole of those seven years he was ignorant that his first wife was alive, and that unless he has proved BIOAUT. 333 both those facts to their satisfaction they ought to con- vict hira. It is perfectly clear that the question is not whether he knew that his first wife was alive at the time of the second marriage, for he may have known that she was alive within the seven years, and yet not know that she was alive at the time of the second marriage, and, if he knew that she was alive at any time within the seven years, he ought to be convicted." On Reg. vs. Turner, 9 Cox 145, Greaves, 1 Russell, 273, note w, says : " This is the first case in which it has ever been suggested that the belief of the death of the first husband or wife was a defence, and the case is pro- bably misreported. The proviso that requires absence for seven years and ignorance of the first husbniul or wife being alive during the whole of that time, clearly shows that this case cannot be supported." If it appears that the prisoner and his first wife had lived apart for seven years before he married again, mere proof that the first wife was alive at the time of the second marriage will not warrant a conviction, but some affir- mative evidence must be given to show that the ac- cused was aware of this fact. — R. vs. Curgerwen, 10 Cox, C. C. 152 ; Reg. vs. Fontaine, 15 Low\ Can. Jur. 141, Drummond, J. In 1863, the prisoner married Mary Anne Richards, lived with her about a week and then left her. It was not proved that he had since seen her. In 18G7, he married Elizabeth Evans, his first wife being then alive. The Court left it to the jury to declare if they were satisfied that the prisoner knew his first wife was alive at the time of the second marriage, and ruled that positive proof on that point wfis not absolutely neces- sary. The prisoner was found guilty, and, on a case re- 334 THE CRIMINAL STATUTE LAW. In Reg. V8. Horton, 11 Cox, 670, Cleaaby, B, summed up a^foUows: "It is submitted tliat, although seven years had not passed since the first marriage, yet the pnsoner reasonably believed (which pre-supp^ses 1 oner grounds of belief) that his first wife L dZZ Zt titled to an acquittal. It would press very hLrd upo^a pnsoner If under such circumstarfces he eould be con! victed, when .t appeared to him as a positive fa^t h fc h . first wrfe was dea^ belief that the fir^ husband w^tll wt Zent7- '^Tr" '«='="■*'' "'-big-ny, unless he has been continuously absent for .seven years On an indictment for bigamy, a witness proved the 1^ r"T 1 T "'" P'"*"* ^'«™"y«->-^ago,and hat the parties hved together some years, but couU not say how long, ,t might bo four years, Wightman, J., ^d: How 18 It possible for any man to prove a negal PJi ATTEMPTS TO PROCURE ABORTION. 335 live ? How can I ask the prisoner to prove that he did not know that his wife was living ? There is no evidence that the prisoner knew that his wife was alive, and there is no offence proved.— Reg. vs. Heaton, 3 F. & F. 819. The 32-33 Vict., ch. 20, s. 58, provides that the offender may bo tried in the district, county or place, where he is apprehended or is in custody. But this provision is only cumulative, and the party may be in- dicted where the second marriage took place, though h. be not apprehended; for in general where a statute directs that the offender may be tried in the county, district or place in which he is apprehended, but contains no negative words, he may be tried where the offence was committed. — 1 Russell, 274. The averment of the prisoner's apprehension as in the form given ante, is only necessary where the second mar- riage took place in another district than where the defen- dant is indicted. — Archbold, 883. In Reg. vs. McQuiggan, 2 Low. Can. Rep., p. 340, the Court ruled that in an indictment for bigamy, under the Canadian Statute, it is absolutely necessary, when the second marriage has taken place in a foreign country, that the indictment should contain the allegations that the accused is a British subject, that he is or was resident in this Province, and that he left the same with intent to commit the offence. See sect. 77, post, as to requiring sureties from the offender in addition to any other punishment. ATTEMPTS TO PROCURE ABORTION. .Sect. 59.— Every woman, being with child, who, with the intent to procure her own miscarriage, unlawfully 886 THE CRIMINAL STATUTE LAW. administers to herself any poison or other noxious thing, or unlawfully uses any instrument or other means what- soever with the like intent, and whosoever with intent to procure the miscarriage of any woman, whether she be or be not with child, unlawfully administers to her or cauees to be taken by her any poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life or forany term not less than two years, or to be impri- soned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and vdth or without solitary confinement 24-25 Vic, ch. 100, sect. 58, Imp. Indictment for woman administering poison to herself with intent or, c&c That C. D. late of. .on. . . at and being then with child, w.th intent to procure her own miscarriage, did unlawfully and feloniously adminis- ter to herself one drachm of a certain poison (or noxious thing) called. . . -. (or did unlawfully and feloniously use a certain irt&trument {or means) to wit contrary to the Statute 1 Burn's Justice, 16. Indictment for administering poison to a woman, with intent lo procure abortion. — That C. D. on unlawfully and feloniously did administer to (or cause to he taken by) one S. P. one ounce weight of a certain poison, called (or noxious thing called ) with ii.tent then and thereby to cause the miscarriage of the said S. P. contrary to theStatute... 1 Burn's Justice, 16. Indictment for using instrument with the like intent unlawfully and feloniously did use a certain instrument called a upon the person of one S. P., with intent then and thereby to cause the miscar- riage of the said S. P 1 Bum's Justice, 16. ATTEMPTS TO i^ROCUEE ABOBTION. 33T In order to constitute an offence under the first part of section 59, the woman must be with child, though not necessarily quick with child. Tho poison or other nox- ious thing must have been administered, or the instru- ment used with the intent to procure the miscarriage. It must be proved, according to the fact stated in the indict- ment, that the woman administered to herself, etc., or that the defendant administered, etc., or caused to be taken, etc., the drug, as therein stated, and that the drug was noxious, or that the defendant used the instrument, or other means, mentioned in the manner described in the indictment.— 1 Burn's Justice 14. Where the prisoner gave the prosecutrix the drug for the purpose of procuring abortion and the prosecutrix takes it for that purpose in the prisoner's absence, this was held to be a causing of it to be taken within the Statute.— R. vs. Wilson, R. vs. Farrow, 127, 164, Dears. &Bell. A man and woman were jointly indicted for feloniously administering to C a noxious thing to the jurors un- known with intent to procure miscarriage. C, being in the family way, went to the male prisoner, who said he would give her some stuff to put her right, and gave her a light coloured medicine and told her to take two spoonsful tiU she became in pain. She did so and it made her iU. She then went to him again, and he said the safest course would be to get her a place to go to. He told her that he had found a place for lier at L and gave her some more of the stuff, which he said would take effect when she got there. They went together to L, and met the female prisoner, who said she had been down to the station several times the day before to meet them. C then began to feel pain and told the female prisoner. 338 THE CRIMINAL STATUTE LAW. Ill Then the male prisoner told what he had given C. The}'^ all went home to the female prisoner's, and the male prisoner then gave C another bottle of similar stuff, in the female prisoner's presence, and told her to take it like the other. She did so and became very ill, and the next day had a miscarriage, the female prisoner attend- ing her and providing all things : held, that there was evidence that the stuff administered was a noxious thing within the 24-25 Vict., ch. 100, s. 5S, Imp. Also that there was evidence of the female being an accessory before the fact, and a party, therefore, to the adminis- tration of che noxious thing. — Reg. vs. Hollis, 12 Cox 463. Under the second part of this section, the fact of the woman being pregnant is immaterial. But, the pri- soner must have believed her to be pregnant ; otherwise there could be no intent under the Statute. Under an indictment for this offence, the prisoner may be convicted of an attempt to commit it, under sect. 49 of the Proce- dure Act of 1869. See sect. 77, pest, as to sureties. As to solitary confinement, see s. 94 of the Procedure Act of 1869. PROCURING DRUGS TO CAUSE ABORTION. Sect. 60. — Whosoever unlawfully supplies or procures any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she he or he 7iot with child, is guilty of a misdemeanor, and shall be liable to be imprisoned in the Penitentiary /or the term of two CONOBALINO THE BIUTH OP A CHILD. 339 years, or to be imprisoned in any other gaol c» place of confinement for any term less than two years, with or without hard labour.— 24-25 Vict. ch. iOO, s,. 59, Imp. Indictment— unlawfully did procure {supply or procure) a large quantity, to wit, two ounces of a certain noxious thing called savin, he the said (defend- ant) then well knowing that the same was then intended to be unlawfully used and employed with intent to pro- cure the miscarriage of one A. N. against the form Archbold, 713. Tlie drug supplied must be a poison or noxious thing, and the supplying an innoxious drug, whatever may be the intent of the person supplying it, is not an offence against this enactment. — Eeg. vs. Isaacs, Leigh & Cave 220. In order to constitute the offence within the meanin"- of this section, it is not necessarj that the intention of employing the noxious drug sliould exist in the mind of the woman: it is sufficient, if the intention to procure abortion exists in the mind of the defendant.— Reg. vs. Hillman, L. & C. 343. Under sect, 77, post^ the prisoner may be fined and required to give sureties. Tlie prisoner may be convicted of an attempt to com mit this offence, upon an indictment under this section, sect. 49 of the Procedure Act of 18G9. CONCEALIJfG THE BIRTH OF A CHILD. Sect. 61. — If any woman is dehvered of a child, every person who by any r , .-^ot disposition of the dead body of the said child, whot^.. , such child died before, at or after its birth, endeavours to conceal the birth thereof, is guilty w 34U THE CRIMINAL STATUTE LAW of a misdemeanor, and shall be liable to bo imprisoned in any gaol or place of contincment other than the Peni- tentiary, for any term less than two years, with or with- ont hard labour ; Provided that if any person tried for the murder of any child be acquitted thereof, it shall be lawful for the jury, by whose verdict such person is acquitted, to find, in case it so appears in evidence, that the child had recently been born, and that such person did, by some secret disposition of such child or of the dead body oi'such child, endeavour to conceal the birth thereof, and thereupon the flourt may pass such sentence as if such person had been convicted upon an indictment for the concealment of birth.— 24-25 Vict., ch. 100, s. (jO, Imp. Sect. 62. — llo part of the Act passed in the twenty- first year of the reign of King James the First, intituled: An Act to prevent the destroying and murdering of bastard children, shall extend to or be in force in Canada, and the trial of any woman charged with the murder of any issue of her body, male or female, which being born alive would by law be bastard, shall proceed and be go\enied by such and like rules of evidence and presumption, as are by law used and allowed to take place in respect to other trials for munler, and as if the said Act passed in the reign of King James the First had never been made. Indictment. — That A. S. on was delivered of a child ; and th^t the A. S. being so delivered of the said child as aforesaid, did then unlawfully endeav- our to conceal the birth of the said child by secretly buryin'; {by amj secret disposition of) the dead body of the said child, against the form, etc., State the means of concealment specially, when it is otherwise than by secret burying. — Archbold, 714. CONCEALING THE BIRTH OP A CHILD. 341 The words in Italics ^^ of such child -^ in the proviso of section 6 1 are not to be found in the Imperial Statute. Section G2 repeals 21 Jac. 1, cli. 27, repealed in Eng- land by 43 Geo. 3, ch. 58. By tlie repealed Act, if the mother of an illegitimate child endeavoured privately to conceal his birth and death, she was presumed to have murdered it, unless she could prove that the child was born dead. Taylor, on Evidence, Note 7, p. 128, justly says that this rule was barbarous and unreasonable. In Reg. vs. Berriman, G Cox C. C. 388, Erie, J., told the jury that this offence cannot be committed unless the chiid had arrived at that stage of maturity at the time of birth that it might have been a living child. But in a later case, Reg. vs. Colmer, 9 Cox C. C. 506, Martin, J., ruled that the offence is complete on a foetus delivered in the fourth or fifth month of pregnancy, not longer than a man's finger, but having the shape of a child. Final disposing of the body is not material, and hiding it in a [)lace from which a furtlier removal was contem- plated, would support the indictment. — R. vs. Goldthorpe, 2 Moo. C. C. 244 ; R. vs. Perry, Dejirs. 47 1 . L<>aving the dead body of a child in two boxes, closed but not locked or fastened, one being placed inside the other in a bedroom, but in sucii a position as to attract the attention of tliose who daily resorted to t!ie room, is not a secret disposition of the body, within the meaning of the Statute. — Bovill, C. J.— Reg. vs. George, 11 Cox C. C. 41. What is a secret disposition of the dead body of a child within the Statute is a question for the jurv, de- pending on the circumstances of the particular easii : where the dead body of a child was tin-owu into a lield over a wall 4.^ feet high, separating the yard of a public house from the field, and a person looking over Um wall 342 niE OttlMlNAL STATUTK LAW. from the yard miglit liavn seen the body, but persons; goiiiiT through tlie yard or using it in the ordinary way would not, it was held, on a case reserved, by five judges, that this was an oflence within the Statute. Reg. vs. Brown, 11 Cox C. C. 517. Although the fact of the prisoner having placed the dead body of her newly- born child in an unlocked box is not of itself sufficient evidence of a criminal conceal- ment of birth, yet all the attendant circumstances of the case must be taken into consideration, in order to deter- mhui whether or not an offence has been committed. — Heg. vs. Cook, 11 Cox C. C. 542. In order to convict a woman of attempting to conceal the birth of her child, a dead body must be found, and identified as that of the child of which she is alleged to have been delivered : a woman, apparently pregnant^ while staying at an inn, at Stafford, received by post, on the 2Sth of Aufjnst, 1S70, a Bnghy neivspaper tvith the Bufjhy postmark upon it. On the same day her appear- anci; and the state of her room seemed to indicate that she liad been delivered of a child. She left for Shrews- bury next morning, carrying a parcel. That afternoon a parcel was found in a waiting room at Stafford station. It contained the dead body of a newly-born child 'wrapped in a limjly Gazette, of August 21th, hearing the Bughy postmark. Tiiere is a railway from Stafford to Shrewsbury, but no proof was given of the woman liav- ing been at Staflbrd Station : Held, Montague Smitii, J., that this evidence was insufficient to identify the body found as the child of which the woman was said to have been delivered, and would not therefore justify her con- viction for concealment of birth.— Reg. vs. Williams, 11 Cox C. C. 684. A., being questioned by a police-constable about the OOWOBALINO TIIK VIRTII OF A CHILD. 843 "Concealment of a birth, gave an answer which caused the ofticer to say to her, " It might be better for you to tell the truth and not a lie." Held, that a further statement made by A to the policeman after the above inducement was inadmissible in evidence against her, as not being free and voluntary. A was taken into custody the same day, placed with two accomplices, B and C, and charged with concealment of birth. All tiu'ee then made statements. Held, that those made by B and C could not be deemed to be allected by the previous inducemeut to A, and were therefore, admissible against B and C respectively^ although that made by A was not so. The prisoners were sent for trial, but before their committal they received the formal caution from the magistrate as to anything they might wish to say. Whereupon A made a statement which was taken down in writing, as usual, and attached to the deposition : Heldy that this latter statement of A might be read at the trial as evidence against herself. Mere proof that a woman was delivered of a child and allowed two others to take away its body is insufficient to sustain an indictment against her for concealment of birth. — Montague Smith, J., in Reg. v. Bates, 11 Cox C. C. 686. By sect. 1, par. I, of the Procedure Act of 1865, the word indictment includes inquisition, and a coroner's inquisition is a charge, so that tlie proviso of section 61 of clb 20, and section 62 of the same chapter, extend to a trial on a coroner's inquisition as well as to a trial on a bill of indictment by the grand-jury. — Rex vs. Cole, 2 Leach C. C. 1095. Rex vs. Maynard, Russ. & Ryan 240. 1 Russell 780, note G, by Grreaves. As to fining the offender and requiring sureties for good behiiviour, see section 77, post. 344 THE CRIMI-VAL STATTTITB LAW. SODOMY. Sect. C3. — Whosoever is convicted of the aboininahlc? crime of buggery, coiniiiiited either with iiwinkiiid or with any animal, shall be liubhi to be imprisoned in the Peni- tentiary for life, or for any term not less than two years, —24-25 Vict,, ch. 100, s. Gl, Imp. Indictment, — in and upon one J. N. feloniously did make an assault, and then feloniously, wickedly, iiud against the order of nature had a venereal affair with the said J. N., and then feloniously carnalJ} knew him, the said J. N., and then feloniously, wickedly, and against the order of natiu'c, with the wiid J. N., did commit and perpetrate that detestable and al)omina,ble crime of buggery (not to be named among Christiana) ; against the form — Archbold 716. Sodomy or Buggery is a detestable and abominable sin, amongst Christians not to be nanmd, committed by carnal knowledge against the ordinance of the Creator and order of nature by mankind with mankind, or with brute and beast, or by womankind with brute beast. — 3 Inst. 58. If the offence be committed on a boy under fourteen years of age, it is felony in the agent only. — 1 Hale 670. If by a boy under fom-teen on a man over fourteen, it is^ felony in the patient only. The evidence is the stime as in rape, \vith two excep- tions : first, that it is not necessary to prove the offence to have been committed against the (;or)s<'nt of the person upon whom it was penetrated, and secondly, both agent and patient (if consenting) are equally guilty. — 5 Burn's. Justice 644. In Rex. vs. Jacobs, Russ. and Ry. 331, it was proved that the prisoner had prevailed upon a child, a boy o£ A88AT7LT WITH INTENT TO COMMIT SODOMY. :{45 seven years oi age, to go with him in a bjick-yanl ; that he, then and there, forced the boy's mouth open wiMi his ting»'fH, and puf his private jtarts into the boy's mouth, an t of this chapter 20. The defendant may be c )nvicted of the assault, if the evidence warrants it. sect. -51, Procedure Act of 1809. See sect. 77, post, as to sureties for the peace. Imlldmcnt for hestiality. — with a certain cow (any animal) feloniously, wickedly and against the order of nature had a veneTeal filfair, and tlien felouioiisly, wickedly and against the order of nature, with the s.iid cow did commit and perpetrate that detestable and abominable crime of buggtuy (not to be namtul among Christians) ; against the form — Arehbold, 7 17. ASSAULT WITH INTENT TO COMMIT SODOMY. INDKCENT ASSAULT ON MALES. Sect. Gi. — Whosoever attempts to commit the said abominable crime, or is guilty of any assault with inti'ut to commit the same, or of any indecent assault upon imy male person, is guilty of a misdemeanor, and shall be IMAGE EVALUATION TEST TARGET {MT-3) y= 1.25 ~ u ■umu U 11.6 V^ v) >? # ^^^'^'<> ">.^1^ /^ riiuiOgiypiuC Sciences Corporation m I any Justice of the Pimce, to tho lik«3 pains and penalties as in ti»e next preceding section ; provided, however that nothing lierein contained siiall ap[)ly to seamen or riggers wlien occupied or engaged in their lawful tr^do or calling. Sect. 74.— AVhosoever is charged with having com- mitted any ottence against tlie provisions of the two last preceding sections of this Act, may ho tried and d(>alt with in pursuance of the Act of the present session (J.SG9) respcicting the prompt and sunnnary administra- tion of criminal justice in certain cases. • Sect. 75.— It sliall be the duty of the Court or Justice before whom any person is convicted under the three last preceding sections of this Act to impound the weapon for carrying which such person is convicted, and to cause the same to be destroyed. Sect. 7G. All prosecutions under the four next preced- ing sections of this Act siiall be commenced witliin one montii from (he connnission of the offence charged. Offences against these sections are to be tried sum- marily, under 3'2-'3'i Vict., ch. 31. Carrying any bovvie-knifii, dagger or dirk, or any weapon called or known as iron knuckles, skull-crackers or sliiiig-shot, or other offensive weapons of a like char- acter, is an offence under sect. 72, whether the bowie- knife be concealed about the person or carried openly. Carrying any instrument loaded at the end is not an offence against this section, if not carried secretly, and concealed about the person.— Bishop, Statutory Crimes, 790. It is not clear what weapons cannot be sold or exposed for sale publicly or privately, under this clause. Ite it only instruments loaded at the end ? The word iveapon is mentioned in the first part of the section only, so that GKNBRATi CLAUSE8. 353 the proliibition sooimh to cxtond tobowi(!-kniv('fi, (Inggcrs, iron kmickh's, (!tc., ftc. Undrr soction 73, the cnrrying of ii Bhonth-kiiife is an ofl!«'ii(',«>, whether doiuf openly or secretly, but }ij){»liesotily to the seiiport towtiH and ■ larceny, there nnist be a taking of the properi;y against the will of the owner, which is the essence of the crime of larceny. The authorities cited by the counsel for the prisoner show that where the property has been obtained voluntarily from the owner, or a servant acting within the scope of his authority, the oUence does not amount to larceny. The cases cited for the prosecution were cases where the servant who pari;ed with the properi;y had a limited authority only. In the present case, the cashier of the bank was acting within his authority in parting with the possession and property in the money. Under these circumstances the conviction must be quashed." And, if credit be given for the property, for ever so short a time, no felony can be committed in converting it.— 2 East P. C. 077. Thus, obtaining the delivery of a horse sold, on pro- mise to return immediately and pay for it, and riding off, and not returning is no felony.— R. vs. Harvey, 1 Leach, 467. "^ ' LAROBNY. — QENKUAL RKUAilKS. 369 So, where the prisoner, with a fraudulent intent to obtain goods, ordered a tradesman to send him a piece of silk, to be paid for on delivery, and upon the silk being Bent accordingly, gave the servant who brouglit it bills which were mere fabrications, and of no value; it was holden not to be larceny on the ground thai the servant jparted with the property by accepting such payment as was offered, though his master did not intend to give the prisoner credit. — Parke's case, 2 Leach, 614. Tiie prisoner, having entered into a contract with the prosecutors for the purchase of some tallow, obtained the delivery orders from the prosecutors, by paying over to them a cheque for the price of the tallow, and, when the cheque was presented, there were no assets. Held not to be a larceny of the delivery orders by a trick, but a lawful possession of them by reason of the credit given to the prisoner in respect of the cheque. — Reg. vs. North, 8 Cox, 433. So, fraudulently winning money at gaming, where the injured party really intended to pay, is no larceny, though a conspiracy to defraud appear in evidence. — li. vs. Ni- cholson, 2 Leach, 610. To constitute larceny, there must be an original felon- ious design. Lord Coke draws a distinction between such as gain possession animo fiirandi, and such as do not. He says : " The intent to steal must be when it comes to his hands or possession : for if he hath the pos- session of it once lawfully, though he hath the animus furandi afterwards, and carrieth it away, it is no larceny." Therefore, where a house was burning, and a neighbour took some of the goods to save them, but afterwards converted them to his own use, it was held no felony. 1 Leach,411. 370 nm CRIMINAL HTATUTK LAW. I ■ hut if Mui ori^lniil intntit ho wrongful, though not a fVldiiiiiiiN trcHpuMH, a HuhHi>(|ii«ttit htloiiidiiH (i|i|iro{)i-ijitJ<)ii JM liiivciiy. Ho, wIh'I'o ji itiaii ,lrov»' away a llot-k of luitilts from a fiolil, and in (l«)iiii( no iiiadvortoii^ly drovo away aloii^ with thoii) a lutiih, tho property of auofh(>r |MirN<)ii, and, as noon m ho diMtMivt^rrd that hn had dont^ ho, Hold thu hind> for hin own uho, and th/r/, that aH tho act ut driving thu Itinih from th(^ field in the first inntaitre waN a treHpaHH, an hood aH hu ruHolved to a}>i)ro[>riate the land) to Imh own iiHe, tho trewpaHH hecame a felony. — Keg. vs. liiley, Dearm. Ml) • Cox, 88. It \h |>e(Mdiarly tho province of the jnry to def(«niiino with wimt intent any act i» done ; and, therefore, though, ill general, ho v''o Urn a posse».sion of anything on deli- very hy the o r cannot coinniit larceny thereof; yet, that tnnst be unih'rntood, first, where tho poHHesHion ig absolutely changed by tlu^ delivery, and next, where such po8S(>ssion is not obtained by fraud, and with a teloniouH intent. For, if, under all the circuinstanceH of tho "r.'Jon who had made the overtures, in consequei .f which he came to the master's promises. Tho master, having previously marked some money, it was, by his direction, placed upon the counter by the servant, in order that it might b * taken up by the party who had come for the LARCENY. — ORNERAL RKMARRig. 371 purposo. It wjiH BO tiikt'n up by him : held, larceny in such party. — Rojjf. vs. VVillinms, 1 C. & K. 195. 3. — The takiwj, whctc the possession of the goods has hrat ohtainvd hand fide without any fraudulent intention in the first instance. — If thr party obtairu'd poHHussion of tlie gooHs lawfully, m up«)n ft trust for, or on account of, the owner, l)y which he uccpiires a special property therein, he cannot at common law be aftt^rwanls guilty of fehjny in converting them to Iuh own use, unhiHs by some new and distinct act of taking, as, by severing part of the goods from the rest, with intcuit to convert them to hit) own use, he thereby dettfrmines the privity of the bail- ment and the H[»ecial property thereby conferred upon him.— 1 nale,504 ; 2 East P. C. 554. But now, by sect. 3 of 32-33 Vict., ch. 21, it is pro vided that : " WiioHoev«^r being a bailee of any chattel, money or valuable security, fraudulently takes or converts the same to his own use or to the use of any person other tlian the owner thereof, although he do not break bulk or otiujrwise determine the bailment, is guilty of larceny, and may be convicted thereof upon an indict- ment for larceny ; but this section shall not extend to any olfence punishable on summary conviction." See R. vs. Wells, 1 F. & F. 109, where it was held that a carrier who receiving money to procure goods, obtained and duly delivered the goods, but fraudulently retained the money, may be convicted of larceny as a bailee. A man cannot, however, be convicted of larceny as a bailee, unless the bailment was to re-deliver the very same chattel or money. — R. vs. Hoare, 1 F. «fe F. G47 ; R vs. Garrett, 2 F. & F. 14 ; R. vs. Hassall, L. & C. 58. The prisoner was intrusted by the prosecutor with u:j.y a. luau OI uuaia, vviiiun Wuru to UU urougUC money w — S72 THE CRIMINAL 8IATUTE LAT\' to the prosecutor's by the prisoner in his own cart, the prisoner being paid for his services including the use of his horse and cart. He bought a load of coals in his own name, and on the way to the prosecutor's abstracted a portion of the coal and converted it to his own use, deli- vering the rest of the coal to the prosecutor as and for the whole load. HeH^ that he was rightly convicted of larceny as a bailee. — R. vs. Buckall, L. & C. 371 ; 9 Cox 419. A carrier employed by the prosecutor to deliver in his, the prisoner''8, cart, a boat's cargo of coals to persons named in a list, to whom only he was authorized to deliver them, and, having fraudulently sold some of the coals and appropriated the proceeds, is properly convicted of larceny as a bailee. — Reg. vs. Davies, 10 Cox, 239. It seems that a married woman may be a bailee within the meaning of sect. 3 of the Larceny Act, R. vs. Robson, L. & C. 93, notvnthstanding a previous ruling to the contrary by Martin, B., in R. vs. Denmour, 8 Cox, 440. See, post J remarks under section 3 of the Larceny Act. 4. — The taking where tJie offender has more than a special property in the gt ads. If the goods of a husband be taken with the consent or privity of the wife, it is not larceny. — R. vs. Harrison, 1 Leach, 47 j R. vs. Avery, Bell, 150. However, it is said that if a woman steal the goods of her husband, and give them to her avowterer, who, knowing it, carries them away, the avowterer is guilty of felony ; Dalt. c. 104. And where a stranger took the goods of the husband jointly with the wife, this was holdei. to be larceny in him, he being her adulterer. — R. vs. Tolfree, 1 Mood. 243, overruling R. vs. Clarke, 1 Mood. 376, note a Also, ill Reg. vs. Foatherstone, Dears. 3G9 ; the prisoiit^r was charged with stealing twenty-two LARCUNY. — GENERAL REMARKS. 373 sovereigns and some wearing apparel. The prosecutor's wife took from the prosecutor's bedroom thirty-five sovereigns and some articles of clothing, and left the house, saying to the prisoner, who was in a lower room, " It's all right, come on." The prisoner and the prose- cutor's wife were afterwards seen together, and were traced to a public house, where they slept together. When taken into custody, the prisoner had twenty-two sovereigns on him. The jury found the prisoner guilty on the ground that he received the sovereigns from the wife, knowing that she took them without the authority of her husband. Upon a case reserved, it was held that the conviction was right. Lord Campbell, C. J., in delivering the judgment said : " We are of opinion that this conviction is right. The general rule of law is, that a wife cannot be found guilty of larceny for stealing the goods of her husband, and that is upon the principle that the husband and wife are, in the eye of the law, one person ; but this rule is properly and reasonably quali- fied when she becomes an adulteress. She thereby determines her quality of wife, and her property in her husband's goods ceases." — See Eeg. vs. Berry, BeU, 95, where the same principle was maintained. And so it is, even though no adultery has been com- mitted, but the goods are taken with the intent that the wife shall elope and live in adultery with the stranger. — R. vs. Tollett, C & Mar. 112 ; R. vs. Thompson, 1 Den. 649. And if a servant, by direction of his master's wife, carries off his master's property, and the servant and wife go off together with the proper^^y with the intention of committing adultery, the servant may be indicted for stealing the property. — R. vs. Mutters, L. & C. 53 1. It seems, however, that if a wife elopes with an adul- 374 THE CRIMINAL STATUTE LAW 'I- terer, it is no larceny in the adulterer to assist in carry- ing away her necessary wearing apparel. — R. vs Fitch, Dears. & B. 187, overruling on this point the direction of Coleridge, J., in R. vs. Tollett, cited supra. The prisoner who had lodged at the prosecutor's house left it, and the next day, the prosecutor's wife also left, taking a bundle vvith her, which, however, was not large enough to contain the things which, the evening she left, it was found had been taken from the house. Two days after, all the things were found in the prison- er's cabin, or on his person, in a ship in which the prosecutor's wife was, the prisoner and the prosecutor's wife having taken their passage in the ship as man and wife. It was held that from these facts the jury were justified in drawing the inference that the prisoner had received the property, knowing it to have been stolen. — R. vs. Deer, L. & C. 240. But an adulterer cannot be convicted of stealing the goods of the husband brought by the wife to his house, in which the adultery is afterwards committed, merely upon evidence of their being there, unless they be traced to his personal possession. — R. vs. Rosenberg, 1 C. & K. 233 ; Archbold, 342. The prisoner eloped with the prosecutor's wife, travel- ling in a cart which the wife took from her husband's yard. The prisoner sold the pony, cart and harness in the presence of the wife, who did not object to the sale and received the proceeds which she retained after pay- ing the prisoner a sovereign he had expended in obtain- ing lodging while they were living in a state of adultery. Held, that the presence of the woman did not alter the offence ; that the fact that he negotiated the sale and received part of the proceeds, was sufficient ; from the circumstances, the prisoner must have known that the LARCENY. — GENERAL REMARKS. S15 pony, cart and harness were not the property of the woman ; and that if the jury were of opinion he had that knowledge, they were bound to convict him. By Lush, J., in Reg. vs. Harrison, 12 Cox, 19. Under certain circumstances, indeed, a man may com- mit felony of his own goods ; as if A bail goods to B and afterwards, animo furandi, steal the goods from B with design to charge him for the value of them, this is felony.— 1 Hale, 513 ; 2 East P. C. 558. So where A having delivered money to his servant to carry to a certain place, disguised himself and robbed the servant on the road, with intent to charge the hun- dred, this was held robbery in A. — 2 East P. C. 558. If a man steal his own goods from his own bailee, though he has no intent to charge the bailee, but his intent is to defraud the king, yet, if the bailee had an interest in the possession and could have withheld it from the owner, the taking is a larceny. — R. vs. Wilkin- son, R. & R. 470. But it is said in Roscoe, Cr. evid. 597 : "It may be doubted whether the law has not been somewhat distorted in this case in order to punish a flagrant fraud." Bishop, 2 Cr. L. 790, says : " If one, therefore, has transfen-ed to another a special property in goods, retain- ing in himself the general ownership, or, if the law has made such transfer, he commits larceny by taking them with felonious intent." So if a man steal his goods in mstodid hgis. But " if the goods stolen were the general property of the defen- dant, who took them from the possession of one to whose care they had been committed, as, for instance from an officer seizing them on an execution against the defendant, it must be shown that the latter knew of 37(1 THK OHTMINAL STATUTB T.AW. Mu^ nxoo.uiion uiid Hri/uro ; oiliorwiso tliorcKnjircMl intent (l(M'M not iipiHMir. 'V\m i)r('Hiiiii|)ti(Ui, in ilio ubHoiUMi of HtM'li UiiowicMlgo, would \u\f lluit ho look tlus gOCKJs Hup- jioNing lio hud tho riglit ho to do." — 2 Bishop, Or. pioc. 71!). Tfji part owiuT of proprriy Htoal it ar the spot when tlu> propiM'ty stolon arrived at the pnisecutor's. The next diiy, the wife was seen near the vspot where her husbaiul was engaged on his work. 81u» was at a place where tlu»re was no road, with a bundle concealed, and was followed Ik .ne. On the following day, she phMlged the 8tt)len prop(>rty at two dilliMViit places. At one of the places, where she wa.s not known, she pledged it in a false name. Ilchl that, upon this «nidence, the wife might be convicted of stealing the property. — Reg. vs. Cohen, 11 Cox, 99. The doctrine of coercion, as applicable to a crime com- mitted by a married woman in tho presence of lior hus- LAROBNT. — niiNBRAT, RRMARK8, zrt band, only riiiHOH a diHpntabk' prcHumption of law in her f'uvonr, wliic-h Ih, In all caH«!H, capable of being rebutted by the evidence : thiH disputable prOHumption of law ex- istH in njiHdemeanorH as well as in felonlop, and tlie queH- tion for tliejnry is the Ham(5 in both canes; the doctrine in qucKtion applies to the crimeof robbery with violence. Sembk : Where a man and woman are inrefort), shall not bo imputed to a mere mistuke or misaniinadversion : as where, persons break open a door in order to execute a warrant which will not justify such a proceeding : for in such case there is no felonious inten- tion. — 1 Hawk. 142. For it is the mind that make the taking of another's goods to be felony, or a bare trespass only ; but, be- cause the variety of circumstances is so great, and the complication thereof so mingled, that it is impossible to prescribe all the circumstances evidencing a felonious intent or the contrary, tho same nuist be left to the due and attentive consideration of the Judge and j^iry: wherein, the best rule is, in doubtful matters, rather to incline to acquittal than conviction. Only, in general, it may be observed, that the ordinary discovery of a felo- nious intent is, the party doing it secretly, or, being charged with the goods, denying it.— 1 Hale, 509. And if goods be taken on claim of right or property in them, it will be no felony ; at the same time, it will be matter of evidence whether they were, bond fide, so taken, or whether they were not taken from, the person actually possessing them, with a thievish and felonious intent, and therefore, obtaining possession of goods by a fraudulent claim of right, or by a fraudulent pretence of law, and then running away with them, would be a felo- LARCINY.— GBNEBAL RKMARKg. 385 ca8o. ny.— 1 Hale, 507. Ltiinott's case and Furre'g Kelyng'H C.C., 04,05, reprint Ity Stevens and llaynes. In a recent case, the prisoner had set wires, in which game was caught. The prosecutor, a game-keeper, tooit tlieni away tor the use of the lord of the manor, while the prisoner was absent. The prisoner demanded iiis wires and game, with menaces, and under the inlluence of fear the prosecutor gave them up. Tlie jury found that the prisoner acted under a bona fide impression tliat the game and wirtis were his property, and that he merely, by some degree of violence, gained possession of wliat he considered iiis own. It was held no robbery, there being no animus furandi. — R. vs. Hidl, 3 C. «fe P. 409. And wliere a letter, directed to J. O. at St. Martin's Lane, Birmingham, inclosing a bill of exchange drawn in favor of J. O. was delivered to the defendant, whose name was J. O. and who resided near St. Martin's Lane Birmingham ; but, in truth, the letter was intended for a person of the name of J. 0. who resided in New Hall Street ; and the prisoner, who, from the contents of the letter, irmsthave known that it was not intended for him applied the bill of exchange to his own usej the judo-es held that it was no larceny, because at the time when the letter was delivered to him, the defendant had not the animus furandi. — R. & Mucklow, 1 Mood. 100 • Bishop, 2 Cr. L. 801. ' And to constitute larceny, the intent must be to de- prive the owner not temporarily, but permanently, of his property. — R. vs. Phillips, 2 East P. C. 002 ; Arch- bold, 320 ; 3 Burn's Just. 220. But see post, sect. 110 of the Larceny Act, and remarks thereon. — See Reg. vs. Hemmings, 4 F. & F. 60. Money was given to the prisoner for the purpose of pavinc turnpike tolls at two cates on his innmoTr 3S6 THE CRIMINAL STATUTE LAW, Twelve days afterwards, on being asked if he had paid the toll at one of the gates, the prisoner said he had not that he had gone by a parish road which only crossed the road at that gate, and so no toll was payable there and that he had spent the money on beer for himself and his mates. The prisoner having been convicted of larceny of the money, but it not appearing on a case reserved, as to whether the facts proved a larceny, that the question of felonious intention had been distinctly left to the jury, the Court quashed the conviction.— Reg. vs. Deering, 11 Cox, 298. In all cases of larceny, the questions whether the defendant took the goods knowingly or by mistake* whether he took them bona fide under a claim of right or otherwise, and whether he took them with an intent to return them to the owner, or to deprive the owner of them altogether and to appropriate and convert them to his own use, are questions entirely for the consideration of the jury, to be determined by them upon a view of the particular facts of the case. — 1 Leach, 422 • 3 Burn's Just. 224. Upon an indictment for larceny, it appeared that the prisoner had been instructed by the wife of the prose- cutor to repair an umbrella. After the repairs were finished, and it had been returned to the prosecutor's wife, a dispute arose as to the bargain made. The prisoner thereupon carried away the umbrella as a secu- rity for the amount alleged by him to be due for repairing it. Blackburn, J., left it to the jury to say whether the taking by the prisoner was an honest assertion of his right, or only a colourable pretence to obtain possession of the umbrella : verdict, not guilty.— Reg. vs. Wade, 11 Cox, 649. A depositor in a post office savings bank obtained a LAECKNT. — GENERAL REMARKS. 387 warrant for the withdrawal of ten shillings, and pre- sented it with his depositor's book to a clerk at the post office, who instead of referring to the proper letter of advice for ten shillings, referred by mistake to another letter of advice for • eight pounds, sixteen shillings and ten pence, and placed that sum upon the counter. The clerk entered eight pounds, sixteen shillings and ten pence in the depositor's book as paid and stamped it. The depositor took up that sum and went away. The jury found that he had the animus furandi at the moment of taking the money from the counter, and that he knew the money to be the money of the Postmaster General when he took it up, and found him guilty of larceny. Held, by a majority of the judges, that he was properly convicted of larceny. Per Cockburn, C. J., Blackburn, Mellor, Lush, Grove, Denman and Archibald, J. J., that the clerk and therefore, the Postmaster General, having intended that the property in the money should belong to the prisoner through mistake, the prisoner knowing of the mistake, and having the animus furandi at the time, was guilty of larceny. Per Bovill, C. J., Kelly, C. B., and Keating, J., that the clerk having only a lim- ited authority under the letter of advice, had no power to part with the property in the money to the prisoner^ and that therefore, the conviction was right. Per Pigott, B., that, before possession of the money was parted with, and while it was on the counter, the pri- soner had the animus furandi, and took it up, and was therefore guilty of larceny. Per Martin, B., Bramwell, B., Brett, J. and Cleasby, B., that the money was not taken invito domino, and therefore that there was no lar- ceny. Per Bramwell, B,, and Brett, J., that the author- ity Qf the clerk authorized the parting with the posses- z 388 THB CRIMINAL STATUTE LAW. sion and property in the entire sum laid down on the counter. — Reg. vs. Middleton, 12 Cox, 260, 417. Larceny hy finding. — If a man lose goods, and another find them, and, not knowing the owner, convert them to his own use, this has been said to be no larceny, even although he deny the finding of them, or secrete them. But this doctrine must be taken with great limita- tion, and can only apply where the finder bona fide supposes the goods to have been losi .oiLjiba ndonQ J by / the owner, and not to a case in which he colours a felonious taking under that pretence. Archbold, 330 ; R. vs. Kerr, 8 C.& P, 176 ; R. vs. Reed, C. & Mar. 306 ; R. vs. Peters, 1 C. & K., 245 ; R. vs. Mole, 1 C. & K. 417. The true rule of law resulting from tue authorities on tha subject has been recently pronounced to be that " if a man find goods that have been actually lost, or are reasonably supposed by him to have been lost, and appro- priates them, with intent to take the entire dominion over them, really believing, wlien he takes them, that the owner cannot be found, it is not larceny ; but, if he takes _^themj with the like intent, though lost, or reasonably / supposed to be lost, but reasonably believing that the owner can be found, it is larceny." — R. vs. Thurborn, 1 Den. 388 ; R. vs. Dixon, Dears. 580 j R. vs Christopher, Bell, 27. In a still more recent ca8e,R. vs. Moore, Leigh & Cave, 1, on an indictment for stealing a bank-note, the jury ' found that the prosecutor had dropped the note in the ^.defendant's shop : that the defendant had found it there j that at the time he picked it up he did not know, nor had he reasonable meftns of knowing, who the owner was : that he afterwards acquired knowledge who the owner was, and after that, converted the note to his own use ; LARCENY. — GENERAL REMARKS. 389 that he intended, when he found the note to take it to his own use and deprive the owner of it, whoever, he was : and that he believed, when he found it, that the owner could be found. It was held that upon these findings, the defendant was rightly convicted of larceny. It is to be observed that in the last mentioned case although the prisoner at the time he found the bank-note did not know, nor had reasonable means of knowing who the owner was, yet that he did believe at the time of the find- ing that the owner could be found.— Archbold, 330. The recent case of R. vs. Glyde, 11 Cox, 103, shows that the belief by the prisoner at the time of the finding of the chattel that he could find the owner is a necessary ingredient in the oifence, and that it is not sufficien*^^ that he intended to appropriate the chattel at the time of find- ing it, and that he acquired the knowledge of who the owner was before he converted it to his own use. In that case, the prisoner found a sovereign on the highway believing it had been accidentally lost ; but nevertheless with a knowledge that he was doing wrong, he at once determined to appropriate it, notwithstanding it should become known to him who the owner was. The owner was speedily made known to him, and the prisoner refus- ed to give up the sovereign. There was, however, no evidence that he believed, at the time of finding the sove- reign, that he could ascertain who the owner was, and the prisoner was, therefore, held not guilty of larceny. In R. vs. Deaves, 11 Cox, 227, the facts, were, that the prisoner's child, having found six sovereigns in the street brought them to the prisoner, who counted them and told some bystanders that the child had found a sovereign. The prisoner and the child then went down the street to the place where the child had found the money, and found a half-ti^overeiffn luda bair. On tho Ham« p^opi^^ 'O) 390 ¥HS CRIMINAL SlTAarCJTB LAW. about two hours after the finding, the prisoner was told that a woman had lost money, upon which the prisoner told her informant to mind her own business, and gave her half a sovereign. It was held by 'he majority of the Irish Court of Criminal Appeal, that this case could not be distinguished from Reg. vs. Q-lyde, supra / that there was nothing to show that at the time the child brought her the money, the prisoner knew the property had an owner, or, at all events, to show that she was under the impression that the owner could be foimd, and that there- fore, the conviction of the prisoner for larceny must be quashed. Prisoner received from his wife a ten pound Bank of England note, which she had found, and passed it away. The note was endorsed " E. May" only, and the prison- er when asked to put his name and address on it by the person to whom he passed it, wrote on it a false name and address. When charged at the police station, the prisoner said he knew nothing about the note. The jury were directed that, if they were sr isfied thiit the prisoner could, within a reasonable time, have found the owner, and if instead of waiting, the prisoner immediately converted the note to his own use, intending to deprive the owner of it, it would be larceny. The prisoner was convicted, but, upon a case reserved, it was held that the conviction was wrong, and that the jury ought to have been asked whether the prisoner, at the rime he received the note, believed the owner could be found. Reg. vs. Knight, 12 Cox, 102. The prisoner found two heifers which had strayed, and put them on his own marshes to graze. Soon afterwards, he was informed by S. that they had been put on his, S.'s marshes and had strayed, and a few days after that that thev belonsed to H. Prisoner left them on his IiABiOSNT OXNSBAL RXMABKB. 391 marshes for a day or two, and then sent thenj a long distance away, as his own property to be kept for him. He then told S. that he had lost them, and denied all knowledge of them. The jury found ; 1. That at the time the prisoner found the heifers he had reasonable ex- pectation that the owner could be found, and that he did not believe that they had been abandoned by the owner. 2. That, at the time of finding them, he did not intend to steal them, but that the intention to steal came on him subsequently. 3. That the prisoner, when he sent them away, did so for the purpose and with the intention of depriving the owner of them and appropriating them to his own use : held, that a conviction of larceny by finding, or as bailee, could not be sustained under the above circumstances.— 'Reg. vs. Matthews, 12 Cox, 489. It is clearly larceny if the defendant, at the time he appropriates the property, knows the owner j and there- fore, where a bureau was given to a carpenter to repair, and he found money secreted in it which he kept and converted to his own use, it was holden to be larceny. — 2 Leach, 952. ►So if a hackney coachman convert to his own use a parcel left uy a passenger in 1 Is coach by mistake, it is felony, if he know the owner, or if he took him or set him down at any particular place, where he might have inquired for him.— R. vs. Wynne, 2 East P. C. 664 ; R. vs. Lamb, he cit ; R. vs. Lear, 1 Leach,415 ; Archbold, 331. So, in every case, where the property is not, properly speaking, lost, but only mislaid, under circumstances which would enable the owner to know where to look for and find it, as where a purchaser at a stall of the defendant in a market left his purse on the stall, the per- son who fraudulently appropriates property so mislaid is oriiilf.v nf]avnon\T P. VH. Wftst. Dftars. 402- 392 THB CRIMINAL BTATUTB LAW. And in every case, in which there is any mark upon the property by which the owner may be traced, and the finder, instead of restoring the property, converts it to his own use, such conversion will amount to larceny.— R. va. Pope, 6 C. & P. 346 ; R. vs. Mole, 1 C. «& K. 417 • R. vs. Preston, 2 Den. 363 ; Archbold, 331. ' Doing an act openly dof.t - rri^ke u the less a felony, in certain cases.— 3 Burn's. .23.— So, where a per- son came into a seamstress's suop, and cneapened goods and ran away with the goods out of the shop, openly, in her sight, this was adjudged to be a felony.— Chiser's case T. Raym. 276. ' Returning the goods will not purge the offence, if the prisoner took them originally with the intent of depriving the owner of them, and of appropriating them to his own use. In Reg. vs. Trebilcock, Dears. & B. 453, the jury found the prisoner guilty, but recommended him to mercy, " believing that he intended immediately to return the property" : Held, that the conviction was right : the re- commendation of the jury is no part of the verdict. The felonious quality consists in the intention of the prisoner to defraud the owner, and to apply the thing stolen to his own benefit or use.— 2 Starkie, on Evid 606. The intent need not be lucn causd. 3 Burn's Just. 224 ; R. vs. Morfit, R. & R. 307 ; Reg. vs. Gruncell, 9 c' & P. 365 ; Reg. vs. Handley, 1 C. & Mar. 547 ; Reg. vs. Privett, 1 Den. 193 ; Reg, vs. Jones, 1 Den. 188 j R. vs Cabbage, R. & R. 292. " The English Courts, however, seem at last, to have overthrown the old notion o^lucri causd.'^ " Will it be contended, asked Pollock, C. B., that picking a man's pocket, not to make yourself rich, but to make him poor, would not be alarcency ? "—Reg. vs. Jones, 1 Den. 188 ; a JDiBuop, ur. L. bid. LAROBNT. — QSNERAL REMARKS. 898 Possession of stolen property recently after its loss, if unexplained is presumptive evidence that the party in possession stole it.— Such presumption will, however, vary, according to the nature of the property stolen, and whether it be or not likely to pass readily from hand to hand.— R. vs. Partridge, 7 C. & P. 551 ; 3 Burn's Just. 225 } Archbold, 235. Prisoner was found with dead fowls in his possession, of which he could give no account, and was tracked to a fowl house where a number of fowls were kept,and on the floor of which were some feathers corresponding with the feathers of one found on the prisoner, from the neck of which feathers had been removed. The fowl-house, which was closed over night, was found open in the morning. The spot where the prisoner was found was twelve hundred yards from the fowl-house, and the prosecutor, not knowing the number of fowls kept, could not swear that he had lost any : held, that there was evidence to support a conviction for larceny.— Reg. vs. Mockford, 11 Cox, 16. On the first floor of a warehouse, a large quantity of pepper was kept in bulk. The prisoner was met, coming out of the lower room of the warehouse, where he had no business to be, having on him a quantity of pepper of the same kind as that in the room above. On being stopped, he threw down the pepper, and said, " I hope you will not be hard with me." From the large quantity in the warehouse, it could not be proved that any pepper had been taken from the bulk. It was objected that, as there was no direct proof that any pepper had been stolen, the judge was bound to direct an acquittal, but the Court of Criminal Appeal held that there was evidence to war- rant a conviction. — Reg. vs. Burton, 6 Cox, 293. Indictment. — The form of indictment for simple larceny, as given in Archbold, 310, is as follows : 394 THl OMMINAL 8TATUTB LAW if i :. ThejuroraforOur Lady the Queen upon their oath present, that J. S. on three pairs of shoes, and one waistcoat, of the goods and chattels of J.N. feloniously did steal, take and carry away, againstthe peace of Our Lady the Queen, her crown and dignity. If the defendant has been guilty of other distinct acts of stealing, not exceeding three, committed by him against the same person within the space of six calendar months one or two other counts, as the case may be, in the following form, may be added, under sect. 6, of the Larceny Act of 1869. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. S. afterwards, and within the space of six calendar months from the time of the committing of the said offence in the first count of this indictment charged and stated, to wit, on six sil- ver teaspoons, of the goods and chattels of the said J. N- feloniously did steal, take and carry away ; against the form of the statute in such case made and provided. As to the punishment for simple larceny, see sects. 4 and 110 of the Larceny Act of 1869, post; also 32-33 Vict. ch. 34 ; but this last Act applies to the Province of Quebec only. It is not necessary to allege the value of the property stolen, except where the value is of the essence of the offence, or has any bearing on the punishment, as by the last part of sect. 110 of the Larceny Act of 1869, where an additional punishment is decreed, in cases where the value ofthe property stolen exceeds two hundred dol- lars. By sect. 74 of the Larceny Act of 1869, if upon the trial of any person indicted for larceny, it be proved that the defendant took the property in such manner as to amount in law to embezzlement, he shall not by reason LAROKNT.— OKlfSKAL BSUAKICS. 395 thereof be entitled to be acquitted, but the jury may return as their verdict that the defendant is not guilty of laroeny but is guilty of embez25lement. See this section and remarks under it, post. And by section 99 of the said Larceny Act of 1869, see post, if upon the trial of any person for larceny, it appears that the offence proved amounts to an obtaining by false pretences, the jury may return as their verdict that the defendant is not guilty of larceny, but is guilty of obtaining by false pretences. Also by section 110 of the said Larceny Act of 1869, if upon the trial of any person for larceny, the jury are of opinion that such person is not guilty of larceny, but are of opinion that he is guilty of an offence against the said section, they may find him so guilty. See this sec- tion and remarks under it, post. But if the jury find a verdict of larceny, where the facts prove an embezzlement, or an obtaining by false pretences, or an offence against Section 110 of the Larceny Act, the conviction is illegal. R. vs. Gorbutt, Dears. & B. 166 ; the offence found by the jury must be the offence proved. By section 49 of the Procedure Act of 1869, if, on the trial of any person charged with any felony or misdemean- or it appears to the jury, upon the evidence, that the de- fendant did not complete the offence charged, but that he was guilty only of an attempt to commit the same, the jury may return as their verdict that the defendant is not guilty of the offence charged, but is guilty of an attempt to commit the same. As to the venue, in indictments for larceny, &c., see sections 105, 106, 112 and 121 of the Larceny Act of 1869, post ; and sections 8, 9, and 10 of the Procedure Act of 1869. 396 THK CRIMINAL 8TATUTS LAW. The time stated in the indictment need not be proved as laid ; if the offence be proved to have been committed at any time before or after, provided it be some day be- fore the finding of the indictment, it will be sufficient. — See section 23 of the Procedure Act of 1869. The goods stolen must be proved to be the absolute or special property of the person named in the indict- ment. But any variance between the indictment and the evidence, in this respect, as well as in the description of the property stolen, may now be amended. An indictment charged the prisoner with stealing nine- teen shillings and six pence in money, of the prosecutor. At the trial, it was objected that there was no case, for the evidence showed that if the prisoner was guilty of stealing anything, it was of stealing a sovereign. There- upon the Court amended the indictment by strii«.ing out the words " nineteen shillings and six pence " and insert- ing in lieu thereof " one sovereign." The jury found the prisoner guilty of stealing a sovereign. Upon a case reserved, the judges held that the Court had power so to amend under 14-15 Vict. ch. 100, s. 1, ( sect. 71, of the Procedure Act of 1869.) — Reg. vs. Gumble, 12 Cox 248 ; R. vs. Marks, 10 Cox, 167. See section 19 of the Procedure Act of 1869, as to cases where property need not be laid in any person. See sections 17 and 18 of the said Procedure Act of 1869, as to stating the ownership, in cases of partner- ships, joint-tenancies, or joint stock companies; also sections 20, 21 and 22 of the said Act as to the statement of the ownership in certain other cases, and sections 24 and 25 as to the description of instruments and money in indictments. Where goods are stolen out of the possession of the bailee, they may be described in the indictment as the LABOXNT. — OXNXBAL REMARKS. 397 property of the bailor or of the bailee ; but where a bailor steals his own goods from the bailee, they must be de- scribed as the goods of the bailee. — Archbold 321, 322. Prisoner was charged with stealing a mare, the property of E. The evidence was that prosecutor, in presence of the prisoner, agreed to buy of W. a mare for five pounds, and that W. assented to take a cheque for the five pounds. The prosecutor afterwards sent prisoner to W. with the cheque, and direction to take the mare to Bramshot farm. On the next day, prisoner sold a mare to S., which he said he had bought for five pounds. When charged before the magistrate with stealing E.'s mare, he said he sold the mare to S., with the intention of giving the money to E., but that he got drunk : held, that that was sufficient evi- dence on which a jury might find that the mare sold to S. was the property of E. — Reg. vs. King, 12 Cox, 134. Prosecutor bought a horse, and was entitled to the return of ten shiUings, chap money out of the purcaase money. Prosecutor afterwards, on the same I'ay, met the seller, the prisoner, and others together in company and asked the seller for the ten shillings, but said he had no change, and offered a sovereign to the prosecutor, who could not change it. The pro- secutor asked whether any one present could give change : the prisoner said he could, but would not give it to the seller of the horse, but would give it to the pro- secutor, and produced two half-sovereigns. The prose- cutor then offered a sovereign of his own with one hand to the prisoner, and held out the other hand for change. The prisoner took the sovereign and put one half-sove- reign only into the prosecutor's hand, and slipped the other into the hand of the seller, who refused to give it to the prosecutor and ran off with it : held, that the in- dictment rightly charged the prisoner with stealing a so- vereign. — Reg. vs. Twist, 12 Cox, 509. 398 TBI OBIMIITAL STATVTl LAW. "W. let a hoi'se on hire for a week to C, who fetched the horse every morning from W.'s stable, and returned it after the day's work was done. The prisoner went to C. one day, just m the day's work was done, and fraudu- lently obtained it from him, by saying falsely " I have come for W.'s horse ; he has . >t a job on, and wants it as quickly as possible." The warae evening, the prisoner was found three miles off with the horse by a constable, to whom he stated that it was his father's horse, and that he was sent to sell it : held, that the prisoner was right- ly convicted of larceny on an indictment alleging the property of the horse to be in W.— Reg. vs. Kendall, 12 Oox, 598. By section 10 1 of the Larceny Act of 1869, post, it is lawful to add a count or several counts for feloniously re- ceiving the stolen property to any indictment for larceny, and vice versft. And it is deemed more prudent always to do so. And where a prisoner is charged with stealing and receiving, the jury may convict of receiving, though the evidence might have warranted a verdict of guilty as principal in the second degree. — Reg. vs. Hilton, Bell, 20 ; Reg. vs. Langmead, L. & C. 427 ; and Greaves' remarks upon it, 3 Russell, 668. A summary trial, in certain cases of larceny, may be had, by consent, under 32-33 Vict., ch. 32, an Act re- specting the prompt and summary administration of Crimi- nal Justice in certain cases, and, 32-33 Vict., ch. 33, an Act respecting the trial and punishment of juvenile offen- ders. These Acts, by 37 Vict., ch. 42, are, with certain changes and restrictions, extended to British Columbia. By 84 Vict., ch. 13, they did not at first apply to Mani- toba, but now, they are, by 37 Vict. ch. 39, extended to it. The Act 32-33 Vict., ch. 35, also provides for the ifl:^^'! ^ LABOCNT. — aiNlRAL BEMARKS. 399 more ipeedy trial, in certain cases, including larceny, of persons charged with felonies and misdemeanors, but applies only to the Provinces of Ontario and Quebec. By 37 Vict., ch. 41, this Act was declared to be in force in the District of Algoma. As to the larceny, embezzlement, &c., &c., of post letters, mail bags, and other offences against the postal service, 8Qe_3Xy-ict*f-ch. 10, an Act for the regulation of ' the postal service^ extended to Manitoba and British Columbia, by 34 Vict., ch. 13, and to Prince Edward Island, by 36 Vict., ch. 40. Y AN ACT RESPECTING LARCENY AND OTHER SIMILAR OFFENCES. 32-33 Vict., Chap. 21. Whereas it is expedient to assimilate, amend and con- solidate the Statute Law of the several Provinces of Quebec, Ontario, Nova Scotia and New Brunswick, relat- ing to larceny and other similar offences, and to extend the same as so consolidated, to all Canada : Therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows. Sect. 1. — In the interpretation of this Act : Istly. The term " document of title to goods " shall in- clude any bill of lading, India warrant, dock warrant, warehouse keeper's certificate, warrant or order for the delivery or transfer of any goods or valuable thing, bought and sold, note, or any other document used in the ordi- nary course of business as proof of the possession or con- trol of goods, authorizing or purporting to authorize, either by endorsement or by delivery, the possessor of such document to transfer or receive any goods thereby repre- sented or therein mentioned or referred to. 2ndly. The term " document of title to lands " shall include any deed, map, paper or parchment written or printed, or partly written and partly printed, being or containing evidence of the title, or any part of the title LAROENT ACT. 401 to any real estate, or to interest in or out of any real e8tate,or any notarial or registrar's copy thereof, or any dupli- cate instrument, memorial, certificate, or document author- ised or required by any law in force in any part of Canada respecting registration of titles, and relating to such title. 3rdly. The term " trustee " shall mean a trustee on some express trust created by some deed, will or instrument in writing, or a trustee of personal estate created by parol, and shall include the heii or personal representative of any such trustee, and any other person upon or to whom the duty of such trust may have devolved or come, and also an executor and administrator, and an official mana- ger, assignee, hquidator, or other like officer acting under any present or future Act relating to joint stock companies bankruptcy or insolvency, and any person who is by the law of the Province of Quebec, an " administrateur ;" and the word " trust" shall include whatever is by that law an " administration." 4thly. The term " valuable security " shallinclude any order, exchequer acquittance or other security whatsover entitling or evidencing the title of any person or body corporate to any share or interest in any public stock or fund, whether of Canada, or of any Province therein, or of the United Kingdom or of Great Britain or Ireland, or of any British Colony or Possession, or of any foreign state, or in any fund of any body corporate, company or society whether vrithin Canada or the United Kingdom, or any British Colony or Possession, or in any foreign state or country, or to any deposit in any savings bank or other bank, and shall also include any debenture, deed, bond bill, note, warrant, order or other security whatsoever for money or for pajmaent of money, whether of Canada, or of any Province therein, or of the United Kingdom, or of any 402 THE OftlMINAL BTATCTS LAW. any document of titlo to lands or goods as hereinbefore de- fined, and (my stamp or writing which secures or evidences title to or interest in any chattel personal, or any release, i^eceipt, discharge, or other instrument evidencing payment , Imp. Tho word " months " in this and tho preceding clause means a (vihsndar month.— 31 Vict., ch. 1, sect. 7, Inter- pretation Act. The ettect of tho above and the i)roceding section, is to restrain the power of the Court with respect to the doctrine of election. Tho Court cannot now put the prosecutor to his election wluire the indictment charges three acts of larceny within six months, or where the evidence shows tiiat tlie propiu-ty was not stolen at nu)ro than three (hUerent times, and tliat not more than six months had elapsed between the first and last of such times. IJut, on the other hand, the Court is not bound by tlie above w«ction to put tlie prosecutor to his eUiction in other cases, but is left to its discretion, acconiing to the ohl practice at cununon law. — K. vs. Jones 2 Campb. l;n ; Reg. vs. Heywood, L. & C. 451. By means of a secret junction pipe with the main of a gas company, a mill was su])plied with gas, whicii did not pass through the gas meter, ami which was con- suuumI without being paid for. This continued to be dorui for some years: held, on an indictment for stealing 1000 cubic feet of gas on a particuhir day, the entire evidence might be given, as there was one continuous act of stealing all the time, and that section of tlu; Lar- ceny Act, as to tlie prosecutor's electing on three sepa- rate takings within six months, did not apply. — Ke<' vs Firth, 11 Cox 234. °' An indictment charged an assistant to a photographer with stealing on a certain day divers articles belonging to his employer. It did n . ppt-ar when iho articles were taken, wliether at one or more times, but only that they were found in the prisoner's possession on the ill '4 LARCENY ACT. 417 17th of January, 1870, and that one particular article could not have been taken before March, 1868; but the prosecution abandoned the case as to this article : held, that this was not a case in which the prosecutor should be put to elect upon which articles to proceed, under section 6 of the Larc<;ny Act. — Reg. vs. Kenwood, 11 Cox, 62(). On this clause. Greaves remarks : " Formerly it very often happened on the trial of an indictment alleging the stealing of a number of articles at the same time, that it turned out that they had been tak(;n at different times, in which case the prosecutor was usually compelled to elect some single taking; such election being required to be made on the spur of the moment, sohie times led to improper acquittals. The pre- sent section is intended to afford a remedy for such cases and to place such cases in the same position as the cases provided for by the previous section. When, therefore, it appears on the trial of an indictment for stealing a number of goods at the same time, that the goods were taken at different times, the prosecutor is not to be put to elect to proceed on any particular taking, unless it ap- pear that there were more than three takings, or that more tlian six calendar months intervened between the first and last of such takings, in which case he is to elect such takings, not exceeding three, within the period of six calendar months from the first to the last of such tak- ings. A suggestion has been made, that in some extra- ordinary cases this may unduly limit the evidence on the part of the prosecution, as it is said that evidence of only three takings will be admissible. This is a fallacy ; the clause confines the prosecutor to proceeding to ohtain a f. dvktioniovihxee takings, .but it does not at all interfere with the admisHibility of any evidence that may in 418 THK CRIMINAL STATUTE LAW. ill the opinion of the Court tend to exphiin the nature and character of any of the takings. If, therefore, a case should occur where a doubt arose whether the evidence as to one or more takings shewed that it was felonious, there can be no doubt that evidence of other takings would be admissible for the purpose of removing such doubt precisely in the same way as heretofore, but not otherwise. {See Beg. vs. Bkasdale, 2 C.& K. 765). In fact the clause empowers the prosecutor to proceed for three takings instead of one without in any respect otherwise altering the evidence that may be admissible." LARCENY AFTER PREVIOUS CONVICTIONS. Sect. 7.--Who8oever commits the offence of simple larceny after a previous conviction for felony, whether such conviction has taken place upon an indictment or under the provisions of the Act respecting the prompt and summary administration of Criminal justice in certain cases (32-33 Vict. ch. 32) or of any other Act for like purposes shall be liable to be imprisoned in the Penitentiary for any term not exceeding ten years, and not less than two years, or to be imprisoned in any other gaol or place of confinement for any terra less than two years, with or without hard labour, and with or without solitary con- finement.— 24-25 Vict. ch. 96, sect. 7, Imp. Sect. 8.— Whosoever coramit/i the offence of simple larceny or any offence hereby made punishable like simple larceny, after having been previously convicted of any indictable misdemeanor punishable under this Act, shall be liable to be imprisoned in the Penitentiary for any term not exceeding seven years and not less than two years, or to be imprisoned in any other gaol or place of confine- ment for any term less than two years, with or without hard labour, and with or without soHtary confinement. —24-25 Vict., ch. 96, sect. 8. Imp. LARCENY ACT. 419 Sect. 9. — Whosoever commits the offence of simple larceny, or any offence hereby made punishable like sim- ple larceny, after having been twice summarily convicted of any of the offences punishable upon summary convic- tion under the provisions contained in this Act, or in any former Act or law relating to the same subjects, or in the Act respecting the prompt and summary administration of Criminal justice in certain cases (32-33 Vict. ch. 32) or other Act for like purposes, or in the Act respecting the trial and punishment of juvenile offenders (32-33 Vict. ch. 33) or in the Act respecting malicious injuries to property^ (32-33 Vict. ch. 22), whether each of the convictions has been in respect of an offence of the same description or not, and whether such convictions or either of them has been before or^after the passing ot this Act, is guilty of felony, and shall be liable to be imprisoned in the Peni- tentiary for any term not exceeding seven years, and not less than two years, or to be imprisoned in any other gaol or place of confinement, for any term less than two years, with or without hard labour and with or without sohtary confinement.— 24-25 Vict. ch. 96, sect. 9, Imp. As to solitary confinement, see sect. 94, of the Proce- dure Act of 1869. As to requiring the offender to enter into recognizances and give sureties for keeping the peace, in cases of felony, see sect. 122, post, of this] Act (Larceny Act.) The form of indictment for a subsequent offence, under these sections, is, in England, governed by sect. 116 of the Larceny Act, but, in Canada, this last clause is omitted from the Larceny Act, and inserted in the Pro- cedure Act of 1869, sect. 26. It is exactly in the same terms, as sect. 116, of the English Larceny Act, and applies, for us, to subsequent offences, under all our Statutes. BB u '&F'' Hf 420 THE CRIMINAL STATUTE LAW. LARCENY OF CATTLE AND OTHER ANIMALS. Sect. 10 — Whosoever steals any cattle is guilty of felony, and shall be liable to be imprisoned in the Peni- tentiary for any term not exceeding fourteen years, and' not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement. — 24-25 Vict. ch. 96, sect. 16, Imp. See ante, sect. 1, for the interpretation of the word catth. Indictment. — The Jurors for Our Lady the Queen upon their oath present, that J. S. on at one horse of tho goods and chattels of J. N. feloniously did steal, take and lead away ; against the form If the indict- ment be for stealing a bull or sheep, &c., say " drive away" instead of " lead away." The indictment must give the animal one of the descriptions mentioned in the Statute ; otherwise the defendant can be punished as for simple larceny merely. — R. vs. Beaney, R. & Ry. 416 ; Archbold, 349. If a person go to an inn, and direct the ostler to bring out his horse, and point out the prosecutor's horse as his, and the ostler leads out the horse for the prisoner to mount, but, before the prisoner gets on the horse's back, the owner of the horse comes up and seizes him, the offence of horse-stealing is complete. — R. vs. Pitman, 2 C. & P. 243. The prisoners enter another's stable at night, and take out his horses, and ride them 32 miles, and leave them at an inn, and are afterwards found pursuing their journey on foot. On a finding by the jury ti)st tlie prisoners took the horses merely with intent to > ide and afterwards leave them, and not to return or i.iake any further use LARCENT ACT. 421 of them, held trespass and not larceny.— R. vs. Philipps and Strong, 2 East P.C. 662. If a horse be purchased and delivered to the buyer, it is no felony though he immediately ride away with it without paying the purchase money.— Rex. vs. Harvey 1 Leach. 467. If a person stealing other property take a horse, not with intent to steal it, but only to get off more conven- iently with the other property, such taking of the horse is not a felony.— Rex. vs. Crump, 1 C. & P. 658. Obtaining a horse under the pretence of hiring it for a day, and immediately selling it is a felony, if the jury find the hiring was animo furandi.—Rex. vs. Pear, 1 Leach, 212 ; Rex. vs. Charlewood, 1 Leach. 409. It is larceny (at common law) fora person hired for the special purpose of driving sheep to a fair, to convert them to his own use, the jury having found that he intended so to do, at the time of receiving them from the owner.— Rex. vs. Stock, 1 Moody 87.— Where the defendant removed sheep from the fold, into the open field, kiUed them, and took away the skins merely, the judges held that remov- ing the sheep from the fold was a sufficient driving away to constitute larceny.— R. vs. Rawlins, 2 East P.C. 617. But it has been questioned, whether the merely removmg a hve sheep for the purpose of killing it, with intent to steal part of the carcase, was an asportation of the lire sheep, as to constitute larceny of it.— R. vs. Wilhams, 1 Mood, 107. See 2 Russell, 361, and R. vs. Yend, o'c & P. 176 Any variance between the indictment and the proof, in the description of the animal stolen, may now be ximended— Sect. 71, Procedure Act, 1869. Reg. vs. Gumble, 12 Cox, 248. jv.....ix,„ --li'riiu.-it.o Vvlm i..\Tji;NT Tu STKAL THE CARCASE. Sect. 11. — Whosoever wilfully kills any animal, with 422 TIIK CIUMINAI, STATUTH LAW. m m intout to stcul the carcase, skin, or any part of fho animal 80 killod, is guilty of felony, and shall be liable to the same punishment as if ho had been convicted of feloni- oijsly stealing the same, provided the offence of stealing the aninud so killed would have amounted to felony — 24- lT) Vict. ch. !)(), sect. II, Fnip. Indictment one sheep of the goods and chattels of J. N. feloniously and wilfidly did kill, with intent feloniously to steal, take and carry away part of the car- case, that 18 to say, the inward fat of the said sheep, against the form Archbohl, 350. Cutting off part of a sheep, in this instance the leg, while it is alive, with intent to steal it, will support an indictment for killing with intent to steal, if the cutting otf must occasion the sheep's death — R. vs. Clay, Rus. & Ry. ;kS7. So on the trial of an indictment for kiUing a ewe with intent to steal the carcase, it appeared that the prisoner wounded the ewe by cutting her throat, and was then interrupted by the prosecutor, and the ewe died of the wounds two days after. It was foujid by the jury who convicted the prisoner that he intended to steal the car- case of the ewe. The fifteen judges held t'ic conviction right. — Reg. vs. Sutton, 8 C. & P. 291. It is immaterial whether the intent was to steal the whole or part only of the carcase. — R. vs. Williams, 1 Mood. 187. STEALING DOGS, BIRDS, ij.TC., ETC., OR OTHER ANIMALS^ ORDINARILY KEPT IN CONFINEMENT, AND NOT SUBJECT OF LARCENY AT COMMON LAW. Sect. 12. — Whosoever steals any dog, or any bird, beast or other animal ordinarily kept in a state of con- tinement or for any domestic purpose,, or for any lawful »)>/>*»in\v of nt'ofit 01' advoMtooe, not beino' the subiect of LARCENY ACT. 423 larceny at comraon law, or wilfully kills any such dog, bird, beast or animal, with intent to steal the same or any part thereof, shall on conviction thereof before a Justice of the Peace, either be committed to the common gaol or house of correction, there to be imprisoned only or to be imprisoned and kept at hard labour for any term not exceeding one month, or else, shall forfeit and pay, over and above the value of the dog, bird, beast, or other animal, such sum of money, not exceeding twenty dollars as to the justice may seem meet, and whosoever having been convicted of any such offence, either against this or any former Act or Law, afterwards commits any offence in this section before mentioned, and is convicted thereof in like maimer, sliall be committed to the common gaol or liouse of correction, there to be kept to hard labour for such term not exceeding three months, as the con- victing Justice may think fit. — 24-25 Vict. ch. 96, sect. 18 and 21, Imp. The words in italics are not in the English Act, and the subsequent offence of stealing a dog, after a previous conviction, is there made a misdemeanor. By sect. 123, it is enacted that every offence punish- able by this Act on summary conviction may be prose- cuted in the manner directed by 32-33 Vict., ch. 31. KILLING OR TAKING PIGEONS. Sect. 13. — Whosoever unlawfully and wilfully kills, wounds or takes any house-dove or pigeon under such circumstances as do not amount to larceny at common law, shall, on conviction before a Justice of ^the Peace, forfeit and pay, over and above the value of the bird, any sum not exceeding ten dollars. — 24-25 Vict. ch. 96, sect. 23, Imp. 424 THE CRIMINAL STATUTE LAW. This clause does not extend to killing pigeons under a claim of right.— Taylor vs. Newman, 9 Cox, 314. By 8 ^ , ..;,>, proceedings on summary convictions under this Act tre governed by 32-33 Vict. ch. 31. STEALING OR DREDGING FOR OYSTERS, ETC. Sect. ] 4.— Whosoever steals any oysters or oyster brood from any oyster ^eost, as to fine and sureties for the peace, in misdemeanors under this Act. In 8U})port of an indictment for stealing oysters in a tidal river, it is sufficient to prove ownership bv oral evidence as, for instance, that the prosecutor and his father for 4-") years had exercised the exclusive right of oyster fishing in the locus in quo, and that in 1S4G, an action had been brought to try the right, and the verdict given in favor of the prosecutor. — Recj. vs. Downing, 11 Cox, 6S0. LARCENY OF VALUABLE SECURITIES. Sect. 15. — Whosoever steals or or any fraudulent pur- pose destroys, cancels, obliterates, r conceals the whole or any part of any valuable security, other than a docu- ment of title to lands, is guilty of felony, of the same na+ure and in the same degree, and punishable in the same manner as if he stole any chattel of like value with the share, inte. st or deposit, to which the security 80 stolen relates, or with the money due on the security so stolen or secured thereby and remaining unsatisfied, or with the value of the goods or other valuable thing 426 THE rnrMTNAI, STATUTE LAW. i'-i represented, mentioned or referred to, in or by the secu- rity.— 24-25 Vict. ch. 90, sect. 27, Imp. As to the interpretation of the words '' valuable secu- rity" see ante, sect. 1. Indictment. — a certain valuable security, other than a document of title to lands, to wit, one bill of exchange for the payment of ten pounds, the property of J. N., the said sum often pounds secured and payable by and upon the said bill of exchange being then due and unsatisfied to the said J. N., feloniously did steal, take and carry away, against the form Archbold, 371. Seopost, sect. 122, as to requiring sureties in felonies under this Act. To constitute the offence it must be proved that the defendant stole the bill as stated. Where the defendant, a stockbroker, received from the prosecutor a cheque upon his banker, to purchase exchequer bills for him, and cashed the cheque, and absconded with the money, upon an indictment for stealing the cheque and the pro- ceeds of it, it was holden to be no larceny, although the jury found, that, before he received tiie cheque, tiie defendant had formed the intention of converting the money to his own use, not of the cheque, because the defendant had used no fraud or contrivance to induce the prosecutor to give it to him, and because being the pro- secutor's own cheque, and of no value in his hands, it could not be called his goods and chattels, nor of the pro- ceeds of the cheque, because the prosecutor never had possession of them, except by the hands of the defendant. — R. vs. Walsh, Russ.& Ry. 215.— But where the prose- cutors gave to the defendant, who was occasionally em- ployed as their clerk, a cheque payable to a creditor, to be delivered by him to the creditor, and he appropriated it to his own use, it was holden by the judges to be a lARCENY /CT. 4t7 larceny of the cheque. — R. vs. Metcalfe, 1 Mood. 433 ; K. vs. Heath, 2 Mood, 33. See 2 Hussell, 203, for a synopsis of Walsh's case. With respect to what instrument or security is within the Act, the following decisions have taken place : — At a conference of tiie Judges in P]a8ter term, 1781, Nares, J., mentioned that a person was convicted before him for privately stealing from the person of another a pocket-book containing a note of the Bristol Bank signed by some one on behalf of himself and partners, promising to pay to the prosecutor or order a sum of money, but which the prosecutor had not indorsed. All the judges were of opinion that this was a capital felony within the statute 2 Geo. 2, ch. 2-), which made the steaUng promis- sory notes felony, with the same consequence as goods of the like purported value, that this was a promissory note, and that its not being indorsed was immaterial. — Anon. 2 East P. C. 598. So an indictment for stealing a bill of exchange in Lon- don was sustained by proof that, when found in the pri- soner's posession there, it had an indorsement, made afterwards and not laid in the indictment, for the addition of a third name made no difference, it being the same bill that was originally stolen. — Austin and King's case, 2 East P. C. 602. When one was compelled by duress to make a promis- sory note on stamped paper before prepared by the pri- soner, who was present during the time, and withdrew the note as soon as it was made, this was holden not to be a felony within the Statute. For according to some of the judges, that is confined to available securities in the hands of the party robbed, which this was not, being of no value while in the hands of the maker himself, yet even if it were, according toothers, this was never in his 428 THE CRIMINAL STATUTE LAW. possession, his signature having been procured by duress to a paper which during the whole continuing transaction was in possession of the prisoner. — Phipoe's case, 2 Leach, 673. This last case would now be punishable under sect, 47, post. And v;here, in consequence of an advertisement, A. applied to B. to raise money for him, who promised to procure ^5000, and produced ten blank 6 shillings stamps, across which A. wrote an acceptance, and B. took them up without saying anything, and afterwards filled up the stamps as bills for ^500 each, and put them in circula- tion, it was holden by Littledale, Rollaiid and Bossanquet that the stamps so filled up were not bills of exchange, orders for the payment of money or securities for money within the meaning of the Statute. — R. vs., Minter Hart, 6 C. & P. lOG. This oflfence would now be punishable under sect. 95, post. Reg. vs. Danger, Dears. & B. 307, would also now fall under the said section. A cheque on a banker written on unstamped paper payable to D. F. G., and not made payable to bearer, is not a valuable security, for it would be a breach in the law for the bankers to pay it. — R. vs. Yates, 1 Mood, 170. The case of R. vs. Clarke, R. & R. 182, where the prisoner was indicted for stealing re-issuable notes after payment and before re-issuing, does not decide whether suchnotes were considered as valuable within the Statute, for the judges held the couviction right on the counts for the value of the stamps and paper, not referring to the objections as to the value of the note. But in R. vs. Ransom, 2 Leach, 1090, wliich was against a clerk in the post-office for secreting a letter containing country bank- LARCENY ACT. 429 notes paid in Lordon and not re-issued, it was contended that they were not available within the Act, but the majority of the judges, among whom was Lord EUenbo- rough, thought otherwise, and as upon the face of them they remained uncancelled, they would, in the hands of a holder for a valuable consideration, be available against the makers. And in the cases of R, vs. Vyse, 1 Mood. 218, it was decided that re-issuable notes, if they cannot properly be called valuable securities whilst in the hand* of the maker, may be called goods and chatt ^i. Wherever, therefore, the instrument \. v^ald, in the hands of an innocent holder, be available against the maker, such an instrument would, it is apprehended, be considered of value. It may be worth while to consider, further, whether the possession of the subject matter of the instrument is not sufficient to bring the offender within the Act. The object of the Statute is to put the securities mentioned therein upon the same footing as the money they represent. The property consists in the power of disposing : if therefore the power of disposal is taken away, the possession and property are gone. The disposal of such property is eifected by means of those instruments ; every such Act of disposal, therefore, it is apprehended, must be considered as an exercise of pro- perty, and the making of such a note, under any circum- stances, an act of possession. If, therefore, such a pro- missory note so tjbtained, would be accounted of value, and to have been in the possession of the prosecutor, the offence would now, beyond doubt, come within the sec- tion. — 3 Burn's Justice, 237. In Eeg. vs. West, Dears. & B. 109, the case of R. vs. Ransom was relied on in the argument, and it appeared that A. stole notes of a provincial bank which were not then in circulation for value, but which were paid in at 480 THE CRIMINAL STATUTE LAW one bmiu'h of tlie bank, and wore in course of transmis- sion to unotlier branch, in order to be re-issued : but it was held tiiat, upon these facts, A. was rightly convirted. 1'he following instruments also liave been held valua- ble securities: a post office money-order, Reg. vs. Gil- Christ, 2 Mood. 233 ; a cheque on a banker, Reg vs. Heath, 2 Mood. 33 ; a pawnbroker's certificate, Reg. vs. Morrison, liell, 158 ; and a scrip-certificate of a foreign Railway Company, Reg. vs. Smith, Dears. 5G. It is to be observed that valuable security includes also doinmcnt of title to goods and document of title to lands, see antr, sect. .1, but that documents (f title to lands are espe- cially exempted in this section. It is, therefore, mate- rial, in drawing an indictment under this section, tosiiovv the sort of valuable security in order to bring it within the section : and a variance between such description and the evidence will be fatal, unless amended Reg. vs. Lowrie, L. R., 1 0. C. R. Gl. Bank notes are properly described as "money," although, at the time of the larceny, they were not in circulation, but were in the hands of the bunkers them- selves.— Reg. vs. West, 7 Cox, 183. Halves of notes should be described as goods and chat- tels.— R. vs. Meagle, 4 C. & P. 53o. If the instrument is void as a security, as, for in- stance, by being unstamped, it should be described as a piece of paper.— R. vs. Pooley, R. & R. 12 ; Reg. vs. Perry, 1 Den. 69. But where an executory contract was unstamped, it was held not to be the subject of larceny, being merely evidence of a chose in action : and that the prisoner could not be convicted on a count charging him with •steahnga piece of paper.— Reg. vs. Watts, G Cox, 304. LARCENY ACT. 431. STEALING DOCUMENTS OF TITLE TO REAL ESTATE. Sect. 10. — Whosoever steals, or for any fraudulent pur- pose destroys, cancels, obliterates or conceals the whole or any part of any document of title to lands, is guilty of felony, and shall be liable to be imprisoned In the Penitentiary for any term not exceeding three years and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement j and in any indictment for any such offence, relating to any document of title to lands, it shall be sufiicient to allege such docu- ment to be or contain evidence of the title, or of part of the title, or of some matter affecting the title, of the person or of some one of the persons having an interest, whether vested or contingent, legal or equitable,, in the real estate to which the same relates, and to men- tion such real estate or some part thereof. — 24-2-5 Vict, ch. 9G, sect. 28, Imp. As to the interpretation of the words " documents of title to lands," see sect. 1, ante. As to requiring the offender to enter into recognizances and find sureties for keeping the peace, see post, s. 122. As to solitary confinement, see sect. 94, of the Proce- dure Act of 1S()9. Indictment. — a certain deed, the property of J. N., being evidence of the title of the said J. N. to a certain real estate called. in which said red estate the said J. N. then had, and still hath an interest, feloniously did steal, take and carry away, against the form Archboldy 367. Add a second count,, describing the nature of the instrument more partic-- u'arly. It seems that in an indictment under this- 432 THE CRIMINAL STATUTE LAW. section, and the two following, for destroying, &c., Ac., for u frtiudulent purpose, tlie purpose should be stated.— Reg. vs. Morris, 9 C. & P. 89. A mortgage deed cannot be described as goods and chattels. — R. vs. Powell, 2 Dvui. 403. See the proviso to the follow ing section. STEALING, ETC., ETC., WILLS OR CODICILS. Sect. 17.— Whosoever, either during the life of tiio 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 testament- ary instrument, whether the same relates to real or personal estate, or to both, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life, or for any term not loss than two years, or to be imprisoned in any other gaol or jilace of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement ; and it shall not, in any indictment for such offence, be necessary to allege that such will, codicil, or other instrument, is the pro- perty of any person or of any value; provided that nothing in this or in the last preceding section mention- ed, nor any proceeding, convictionor judgment to be had or taken thereupon, shall prevent, lessen "or impeach any remedy at law or in ecpiity, which any party aggrieved by any such offence might or would have had if "this Act had not been passed ; but no conviction of any such offender shall be received in evidence in any action at law or suit in equity against him, and no person shall be liable to be convicted of any of the felonies in thi^ and the last preceding section mentioned by any evidence whatever, in respect of any act done by him, if he has flt any time, previously to his being charged with such LARCENY ACT. 433 offence, first discloseJ 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 disclosed the same in any compulsory examination or deposition before any court upon the nearing of any matter in bankruptcy or insolvency — 24-2-5 Vict., ch. 96, sect. 29, Imp. The words in italics are not in the English Act. As to requiring the offender to enter irto recogni- zances and find sureties for keeping the peace, see 2J0st, sect. 122. As to solitary confinement, see sect. 94 of the Proce- •dure Act of 1809. Indictment. — a certain will and testamentary instrument of one J. N. feloniously did steal, take and *3arry away, against tli form Archbold, 356. Add counts varying description of the will, &c., &c. The caL.es of Reg. vs. Skecn, Bell, 97, and Reg. vs. Strahan, 7, Cox 85, would not now be^ held as law. — Greaves, Cons. Stat. 126. The words, or of any value, inserted into our Statute, were unnecessary. — Sect. 23, Procedure Act, 1 869 : Oreaves loc. cit. STEALING, ETC., ETC., RECORDS, ETC., ETC. Sect. IS. — Whosoever steals, or, for any fraudulent purpose, takes from its place of deposit, for the time beino-, or from any person having the custody thereof, or unlaw- fully and maliciously cancels, obliterates, injures or des- troys Ih-* ^vhole or any part of any record, writ, return, pane!, t> jcess, interrogatory, deposition, affidavit, rule, order, or warrant of attorney, or of any original docu- ment whatsoever, of or belonging to any Court of Record 434 THE CRIMINAL STATUTE LAW. or other Court of Justice, or relating to any matter, civil or criminal, begun, depending or terminated in any such Court, or of any bill, petition, answer, interrogatory, de-- position, affidavit, order or decree, or of any original do- cument whatsoever of or belonging to any court of equity or relating to any cause or matter begun, depending or terminal ed in any such Court, or of any original docu- ment in any wise relating to the business 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, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding three years, and not less than two years, or to be imprisoned in any other gaol or place of coTil'nementfor any term less than two years, with or without hard labour, and with or without solitary con- finement, and it shall not in any indictment for such offence be necessary to allege that the article in respest of which the offence is committed is the property of any person. — 24-95 Vict., ch. 9G, sect. 30, Imp. The words "or other Court of Justice'' are not in the English Act. As to recognizance and sureties, see^osi^, sect. 122, As to solitary confinement, see sect. 94 of the Proce- dure Act of 1869. Indictment for stealing a record.— a certain judg- ment-roll of the Court of Our Lady the Queen, before the Queen herself, feloniously did steal, take and carry away, against. Indictment for taking a record from its place of deposit. — a certain judgment-roll of the Court of our said lady the Queen, before the Queen herself, from its place of deposit for the time being, to wit, from the treasury of the said Court feloniously and for a fraudulent purpose LARCENY ACT. 435 did take, against If for obliterating, &c., &c., &c., say, feloniously, unlawfully and maliciously did ob- literate, &c., &c., &c., Archbold 354, 355. Stealing rolls of parchment will be larceny at common law, though they be the records of a Court of Justice, unless they concern the realty, E. vs. Walker, 1 Mood. 155; but it is not so if they concern the realty. — R. vs. Westbeer, 1 Leach, 13. A commission to settle the boundaries of a manor is an instrument concerning the realty, and not the subject of larceny at common law. — R. vs. Westbeer, loc. cit. Upon an indictment for taking a record from its place of deposit, with a fraudulent purpose, the mere taking is evidence from which fraud may fairly be presumed, unless it be satisfoctorily explained. — Archbold, 355. The prisoner was indicted under this section of the Larceny Act. The first count charged the prisoner with stealing certain process of a court of record, to wit, a certain warrant of execution issued out of the County Court of Berkshire, in an action wlierein one Arthur was plaintiff and the prisoner defendant. The second count stated that at the time of committing the offence herein- after mentioned, one Brooker had the lawful custody of a certain process of a court, j[ record, to wit, a warrant of execution out of the County Court that defen- dant intending to prevent the due course of law, and to deprive Arthur of the rights, benefits and advantages from the lawful execution of the warrant, did take from Bro*ker the said warrant, he, Brooker, having then the lawful custody of it. Brooker was the baihff who had seized the defendant's goods, under the said writ of exe- cution. The prisoner, a day or two afterwards, forcibly took the warrant out of the bailiflTs hand, and kept it. He then ordered him away, as having no more authority. cc 'f 'I- 43G THE CIIIMINAL STATUTE LAW anO, on his refnsiil to go, forcibly turnod him out. The prisoner was found guilty, and the conviction aftirnied upon a case reserved. Cockburn, C. J., said : " I thinly that the first count of the indictment which charges lar- ceny will not hold. There was no taking lucri cmisa^ but for tiie purpose of preventing the bailiff from having lawful possession. Neither was the taking aw«mo/«mw(?/. I may illustrate it by the case of a man, who, wishing to strike another person sees him coming along with a stick in his hand, takes the stick out of his hand, and strikes him with it. That would be an assault, but not a felonious taking of the stick. There is, however, a second count in the indictment which charges in effect that the prisoner took the warrant for a fraudulent pur- pose. The facts show that the taking was for a fraudu- lent purpose. He took the warrant forcibly from the bailiff, in order that he might turn him out of possession. That was a fraud against the execution creditor, and was also contrary to tiie law. I am therefore of opinion that it amounts to a fraudulent purpose within the enactment, and tiiat the conviction must be affirmed." The rest of the Court concurred. — Reg. vs. Bailey, 12 Cox, 129. STEALING RAILWAY TiCKETS, ETC, ETC. Sect. 10. — Whosoever steals any railway or steamboat ticket, or any ordor or receipt for a passage on any rail- way or in any steamer or other vessel, is guilty of felony, and shall be liable to be imprisoned in any gaol or place of confinement other than a Penitentiary, with or with- out hard labour, for any term less than two years. This clause is not in the English Statute. As to recognizances and sureties for the peace, ^qq post, sect. LARCENY ACT, 437 , ETC., LEAD, METAL, GLASS, STEALING OR BREAKING, ETC ETC., ETC., FIXED TO HOUSE OR LAND. Sect. 20.— Whosoever 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, res- pectively, fixed in or to any building whatsoever, or any thing made of metal fixed in any land, being private pro- perty, 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, is guilty of felony, and shall be liable to be punished as in the case of simple larceny : and in case of any such thing fixed in any such square, street or place as afore- said, it shall not be necessary to allege the same to be the property of any person.— 24-25 Vict., ch. 90, sect. 31, Imp. At common law, larceny could not be committed of things attached to the freehold. As to punishment for simple larceny, see ante, sect. 4, andi)05#, sects. 110 and 122. This enactment extends the offence much further than the prior acts did, as it includes all utensils and fixtures of whatever materials made, either fixed to buildings or in land, or in a square or street. A church, and indt'.>d all buildings are within the Act, and an indictment tor stealing lead fixed to a certain building, without further description will suffice.— R. vs. Parker, 1 East P. C. •592 ; R. vs. Norris, R. & R., (i9.— An unfinished building boarded on all sides, with a door and a lock, and a roof of loose gorse, was held a building within the Statute.- R. vs. Worrald, 7 C. & P. 516.— So also where the lead sto'en fomied the gutters of two sheds buCt of brick, 498 TMK t HIMINAI. MATl'TK l,A\V. tiiiibor (uui tilt'N iiixiii ii wlinif li\('[)i-(>s(>u(uli(>ii of iiiniHcIf, got into possoNHion of a liou.Mt«, Mnd»>r u trnily for u ItmMo of it, and then .><(rii»|M>d it ol" iho K«ad, tho Jnry boing ol' opinion that ho tddainod possession of (he Iiuuho with inleni to steal (he lead, tbinid him gniily, and ho atlor waids hml j»ulgnien(. — U. vm. .V tnulay, i3 Ltuich, H'tO, A prisoner, however, eaniioi, upon an indiednent lor (his statn(abh> lelony, be eonvic(ed of simple lareeny. — Kog. vs. tJooeh, s ('. it I*. 'Jl>;i. The pnst)nors were Ibnnd gniily ol' hiiving sdden n copper snn-diid fixed npon a wooden post in a clunvli- yard. t\mvie(ion lu«ld rigid. — Keg. vs. Jones, Dears. «.t n. nr.r). Tho ownership oC tho bnilding (Vom which the li.vtmv is stolen nnist be correctly laid in the indictnHiit.-- :2 Kussell, '^'i'K Indictnit'ut /or sfrnlhiif nidnl Jival i)i hml hciiuj private pivpvrtff, — two lumdred ponnds weight of iron, the property of J. X., then being (ixod in a certain land which was then private property, to wit, in a garden o( tho sjud ,1. N. sitnato felonionsly did steal, take and carry away, against .... Archbold, ;k)5). SrKAMNC, OR (n'lTIXa TKKKS. Sect. 'J I. — \Vhosoever steals or cnts, breaks, roots np, or otherwise destroys or damages with inttMit to steal, the whole or any part of any tree, saphng or shrnb, or any underwooti respectively growing in any park, plea- sure gronnil, garden, orchard or avenne, or in any groutui I.ARORNY ACT. 431) ttdjuiniitg ur bolungiiig tuuiiy (Iwclling-houHc, iu caflo the value ul' tliti article or ftriiclt'M Htoloii, or tlio airiount of Urn injury doiu', 1.0 I.I |^|28 |2.5 ■^ 1^ 12.2 ■63 Hll^S^ lit 2.0 1.8 IL25 |||||_N^ 1 1.6 ^P: m ..retion of the Justice, either be committed to tne common gaol or house of correction, there to be im- prisoned only, or to be imprisoned and kept to hard labour, for any terra .lot exceeding one month, or else shall forfeit and pay, over and above the value of the article or articles so stolen or the amount of the injury done, such sum of money, not exceeding twenty dollars, LARCENY ACT. 445' as to the Justice may seem meet. And whosoever hav- ing been convicted of any such offence, either against this or any former Act or Law, afterwards commits any of the offences in this section before mentioned, is guilty of felony, and shall be liable to be punished in the same manner as ^in the case of simple larceny. — 24-25 Vict., ch. 96, sect. 36, Imp. As to summary convictions under this Act, see post^ s. 123. As to punishment for larceny, see ante, s. 4 and 2)ost, s. 122. The words plant and veyetaUe production do not apply to young fruit trees.— R. vs. Hodges, M. & M. 341. Steal- ing trees would fall under sections 21 and 22. Indictment. — The jurors for Our Lady the Queen, upon their oar,h present, that J. S. on twenty pounds' weight of grapes, the property of J. N., then growing in a certain garden of the said J. N. situate unlawfully did steal, take and carry away, against the fomi of the Statute in such case made and provided : And the jurors aforesaid, upon their oath aforesaid, do say that, hereto- fore, and before the committing of the offence herein- before mentioned, to wit, on at the said J. S. was duly convicted before J. P., one of Her Majesty's Justices of the peace for the said district of for that he, the said J. S., on . {as in the previous con- viction) against the form of the Statute in such case made and provided, and the said J. S. was thereupon then and: there adjudged for the said offence to forfeit and pay the sum of twenty dollars, over and above the amount of the article so stolen as aforesaid, and the further sum of six shilHngs, being the amount of the said injury ; and also to pay the sum of ten shillings for costs, and in default of immediate payment of the said sums, to be imprisoned in for the space of unless the said sum should V. Md THE OaiMINAL STATUTE LAW. be sooner paid, and so the jurors aforesaid, upon their oath aforesaid, do say, that the said J. S., on the day and in the year first aforesaid, the said twenty pounds' weight of grapes, the property of the said J. N., then growing in the said garden of tlie said J. N. situate feloniously did steal, take and carry away, against the form of the Statute in such case made and provided. — Archbold, 367. As to indictments for a subsequent offence, see ante under sect. 22. STEALING VEGETABLE PRODUCTIONS NOT IN GARDENS. Sect. 27. — Whosoever steals or destroys or damages with intent to steal, any cultivated root or [)lant used for the food of man or beast, or for medicine, or for distilling, or for dyeing, or for or in the course of any manufacture, and growing in any land open or enclosed, not being a garden, orchard, pleasure ground or nursery ground, shall, on conviction thereof before a Justice of the Peace, either be committed to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour, for any term not exceeding one month, or else shall forfeit and pay, over and above the value of the article or articles so stolen, or the amount of the injury done, such sum of money not exceeding five dollars, as to the Justice seems meet, and in default of payment thereof Jtogether with the costs, if ordered, shall be committed as aforesaid for any term not exceeding cne month, unless payment be sooner made, and whosoever, having been convicted of any such offence, either against this or any former Act or Law, afterwards commits any of the said offences in this section before mentioned, and is convicted thereof in Hke manner, shall be committed to the common gaol or house of correction, there to be kept to hard labour, for such term not exceeding three months, as the LARCENY ACT. 44T' convicting Justice thinks fit. — 24-25 Vict., ch. 96, sect.. 37, Imp. As to summary convictions, under this Act, see j^osty. sect. 123. • Clover has been hehl to be a cultivated plant, Reg. vs. Brunsby, 3 C. & K. 315; but it w^as doubted w^hether grass were so. — Morris vs. Wise, 2 F. «& F. 5J . STEALING FKOM MINES, MINERS REMOVING ORE, ETC., ETC. Sect. 28. — Whosoever steals or severs with intent to steal, the ore of any metal, or any quartz, lapis calami- naris, manganese, or minidick, or any piece of gold, silver or any other metal, or any wad, black cawlke or black lead, or any coal or cannel coal, or any marhle, stone or other mineral, from any mine, bed or vein thereof respectively, is guilty of felony, and shall be liable to be imprisoned in any gaol or place of confine- ment other than a Penitentiary for any term less than two years, with or without hard labour, and with or without solitary confinement ; provided that no person shall be held guilty of any offence for having, for the purposes of explanation or scientific investigation, taken any specimen, or specimens, of any ore or mineral from any piece of ground unenclosed and not occupied or worked as a mine, quarry or digging. — 24-25 Vict., ch. 96, sect. 38, Imp. The words in italics and the proviso are not in the English Act. Sect. 29. — Whosoever being employed in or about any mine, quarry or digging, takes, removes or conceals any ore of any metal, or any quartz, lapis calaminaris, man- ganese, mundick, or any piece of gold, silver or any othsr metal, or any mineral found or being in such mine, quarry or digging with intent to defraud any proprietor 448 THE CRIMINAL STATUTE LAW. W>li I: 4 of or any nd venturer in the same, or any workman or minor employed therein, is guilty of felony, and shall be liable to bo imprisoned in any gacl or place of confine- ment other than a Penitentiary for any tefm less than two years, with or without hard labour, and with or with- out solitary confmement.— 24-25 Vict., ch. 90, sect. 39 Ini|). ' The words in italics are not in the English Act. As to solitary confinement, see sect. 94, of the Proce- dure Act of 1S()9. As to recognizances and sureties for keeping the peace in felonies under this Act, see post, sect. 122. R. vs. Webb, 1 ]\Iood. 421 ; Reg. vs. Holloway, 1 Den. -370 ; Reg. vs. Poole, Dears. & li. ;j|.5, would now fall under sect. 29. It must be alleged and proved that the ore was stolen from themuie.— Reg. vs. Trevenner, 2 M & Rob. 470. Indictment under sect. 28.— twenty pounds weight of copper ore, the property of J. N., from a certain mine of copper ore of the said J. N., situate. . . . feloni- ously did steal, take and carry away, against the form Archbold, 300. Indictment under sect. 29.— at being then md there employed in a certain copper mine there situate, called .... the property of ... . feloniously did take {or remove or conceal) fifty pounds weight of cop- per ore found in the said mine with intent thereby then to defraud the said 3 Burn's Just. 313. i^eepost, sect. 3-5, as to possession of gold or silver being i>r/ma facie evidence of larceny of it, in certain cases. PENALTY FOR CONCEALING ROYALTY, SELLING OR PURCHA?- INO GOLD, ETC., ETC., Sect. 30.— Whosoever being the holder of any lease or LARCENY ACT, 449 license ifisued under the provisions of any Act relating to u^old or silver mining, or by any private parties owning land supposed to contain any gold or silver, by any fraud- ulent device or contrivance, defrauds or attempts to de- fraud Her Majesty or any private party of any gold, sil- ver or money payable or reserved by such lease, or with such intent as aforesaid, conceals or makes a false state- ment as to the amount of gold or silver procured by him, is guilty of a misdemeanor, and shall be liable to be impri- soned in any gaol or place of confinement other than a Penitentiary for any term less than two years, with or without hard labour, and with or witiiout solitary con- finement. Sect. 31. — Whosoever, not being the owner or agent of mining claims then being worked, and not being thereunto authorized, in writing, by the conmiissioner or deputy commissioner of mines, in any district, or by the officer for the division in any gold mining division, or by any inspector or other proper officer in that behalf, named in any Act relating to mines in force in any Pro- vince of Canada, sells or purchases, except to or from such owner or authorized person, any quartz containing gold, or any smelted gold or silver, at or within three miles of any gold district, o^ mining district, or gold mining division, is guilty of a misdemeanor, and shall be liable to be imprisoned in any gaol or place of confine- ment other than a Penitentiary for any term less than two years, with or without hard labour, and with or without solitary confinement. Sect. 32. — Whosoever purchases any gold in quartz, or any unsmelted or smelted gold or silver, or otherwise unmanufactured gold or silver of the value of one dollar or upwards, except from such owner or authorized person as in the last preceding section mentioned, and does not 450 THE CRIMINAL STATUTE LAW. I i \ Ml nt the same time execute in triplicate nn instrument in writing, utating the place nml time of purchase, and tlm (piantity, quality lUul value of gold or silver so purclinsed, und the name or names of tlie person or persons from whom the same was purchased, and file the same in the ortice of tjjo nearest connnissioner or deputy conunis- sioner of mines of the district, or officer for the division in the gold mining division, or of some inspector or otiicr proper officer in that behalf named in any Act in force in the Province in whicli such purchnse is made, within twenty days next after the date of such purchase, is- guilty of a misdemeanor, and sliall be liable to any penalty not exceeding in amount double the value of the gold or silver purchased, and to be imprisoned in any gaol or place of confmement, otiier tlian the Peniten- tiary, for any tenn less than two years, with or witliout hard labour, and witli or without solitary confinement. Those three sections are not in the English Act. See post, sect. 12:2, for fine and sureties in misdemea- nors under this Act. As to solitary confinement, see sect. 94 of the Proce- dure Act of 1869. S2ct,3(j,2)0Sty applies to indictments under sections 31 and 32. SEARCH W.^RRANT FOR GOLD, ETC., ETC. APPEAL, ETC., ETC. Sect 33. — On complaint in writing made to any Justice of the Peace of the county, district or place, by any person interested in any mining claim, that rained gold or gold bearing quartz, or mined or unmanufac- tured silver (tr silver ore, is unlawfully deposited in any place, or held by any person contrary to law, a general search warrant may be issued by such Justice, as in the case of stolen goods, including any number of places or LAROINY ACT. 4fil 1^80118 named in such complaint, and if, upon scarcli, any such gold or gold-bearing quartz, or silver or silver ore be found to bo uidawfully deposited or held, the Justice shall make such order for the restoration thereof, to the lawful ovk^ner, as he considers right. Sect. 34.--Tho decision of such Justice shall be sub- ject to appeal as in ordinary cases, on summary convic- tion ; but before such appeal shall be allowed, the appellant shall enter into a recognizance in the manner by law provided in cases of appeal from summary conviction, to the value of the gold or other property in question that he will prosecute his appeal at the next sittings of any Court having jurisdiction in that behalf, and will pay the costs of the appeal in case of a decision against him, and in case of the defendant appealing that he will pay such fine as the Court may impose, with costs. These two sections are not in the English Act. In a search warrant, the particular thing or things intended to be searched for should be described as accurately as the nature of the case will allow.— Greaves, Cons. Acts 399. POSSESSION OP GOLD, ETC, ETC., IN CERTAIN CASES, EVIDENCE OB^ LARCENY,— FORM OP INDICTMENT. Sect. 35. — When any smelted gold or silver, or any gold-bearing quartz, or any unsmelted or otherwise un- manufactured gold or silver, is found in the possession of any operative, workman or labourer, actively engaged in or on any mine, contrary to the provisions of any law in that behalf, such possession shaU be primd facie evi- dence that the same has been stolen by him. Sect. 36.-— In any indictment brought under any of the five next preceding sections, it shall be sufficient to lay the property in the Queen, or in any person DD m THE CRIMINAL 8TA1UTE LAW. (iliiti or persons, or corporation, in different counts in such indictment ; and any variance in the latter case, between the statement in the indictment and the evidence adduced, may be amended at the trial, and if no owner be proved the indictment may be amended by laying the property in the Queen. These clauses are not in the Enghsh Act. Sect. 36 can only apply to indictments under sections 31 and 32 ; there are no indictments under the three next preceding sections. JRAUD ON PAIITNERS. Sect. 37. — Whosoever, with intent to defraud his co- partner, co-adventurer, joint tenant or tenant in common, in any claim or in any share or interesi; in any claim, secretly keeps back or conceals any gold or silver found in or upon or taken from such claim, is guilty of felony, and shall be liable to be > inished in the same manner as in tne case of simple larcency. {Not in the English Act. Spy ante, sect. 4, as to punishment for simple larceny, and pest, sects. 110 and 122. LARCENY BY PARTNERS. Sect. 38. — Whosoever, being a member of any co- paitnershipowring any money or other property, or be- ing one of two or more beneficial owners of any money or other property, steals, emheizles or unlawfullij converts the same or any part th£reofto his own use. or that of^nij person other than the owner, shall be liable to be dealt with, tried, convicted and punished as if he had not been or were not a member of such co-partnership, or one of such beneficial owners. — 31-32 Vict., ch. 116, sect. 1,. Imp. The English clause reads thus : " If any person, being- LARCENY ACT. 453 a member of any co-partnership, or being one of two or more beneficial owners of any money, goods or effects biUs, notes, securities, or other property, shall steal or embezzle any such money, goods or effects, biUs, notes, securities or other property, of or belonging to any such co-partnership, or to such joint beneficial owners, every such person shall be Table to be dealt with, tried, convict- ed and punished for the same as if such person had not been or was not a member of such co-partnership, or one of such beneficial owners." A partner stole goods belonging to the firm, and ren- dered himself liable to be dealt with as a felon under the 31-32 Vict.,ch. 116, sect. 1, {the present clause), and sold the same to the prisoner who knew of their having been stolen: held, that the prisoner could not be convicted on an indictment for feloniously receiving, under the 24-25 Vict., ch. 96, sect. 91, {sect. 100 of our Larceny Act), but might have been convicted as an accessory after the fact under the 24-25 Vict.,ch. 94, sect. 3, (31 Vict, ch. 12 of our Statutes) on an indictment properly framed.— Reg. vs. Smith, 11 Cox, 511. An indictment framed upon the 31-32 Vict., ch. 116 sect. 1, aUeged that B. was a member of a co-partnership consisting of B. and L., and that B., then being a member of the same, eleven bags of cotton waste, the property of the said co-partnership, feloniously did steal, take and carry away : lieU, that the indictment was not bad for introducing the word " feloniously."_Reg. vs. Butter- worth, 12 Cox, 132. In this case, Cottingham, for the prisoner, said : " The indictment is bad because it does not foUow the words of the Statute. That enactment creates a new offence, one which did not exist at com- mon law; it does not say that the offence shall be a felony, and the indictment is bad for using the word Ifcf 454 THE CRIMINAL STATUTE LAW. " feloniously/' There are offences of stealing, which are' not felonies, such as dog stealing." Lush, J., said : "If the offence created by this section is not a felony, what is it ?" And the Court, without calling upon the counsel for the prosecution, affirmed the conviction, holding the objec- tion not arguable. Indictment— The Jurors for Our Lady the Queen, upon their oath present, that on at Thomas But- terworth, of was a member of a certain co-partner- ship, to wit, a certain co-partnership carrying on the business of and trading as waste dealer, and which said co-partnership was constituted and consisted of the said Thomas Butterworth and of John Joseph Lee, tradin«y as aforesaid ; andthereupon,the said Thomas Butterworth, at aforesaid, during the continuance of the said co- partnership, and then being a member of the same as aforesaid, to wit, on the day and year aforesaid, eleven bags of cotton waste of the property of the said co-part- nership feloniously did steal, take and carry away, against the form of the Statute in such case made and provided, and against the 'peace of Our said Lady the Queen, her crown and dignity— Reg. vs. Butterworth, ftiipra. See Reg. vs. Ball, 12 Cox, 96, for an indictment against a partner for embezzlement of partnership property ; also Reg. vs. Blackburn, 11 Cox, 157; in these two cases the defendants were indicted under this section. The importance of the decision, given by Mr. Justice Ramsay, in April last, upon the interpretation of this clause (38 of the Larceny Act) is a sufficient excuse for inserting it here, though Canadian cases are not generally referred to in these notes : — Court of Queen's Bench, Croivn side. Montreal, 13tJi April, 187 i. Regina vs. JohnLowenbruck. Raro''ay,.J; LARCENY ACT. 455 "The prisoner is indicted for stealing money, the property of the partnership of which he is a partner, under sect. 38 of the Larceny Act of J 869. If it was the intention of the Legislature to overthrow the whole order of ideas as to the subject of larceny and embe2zlement, they should have proceeded with a little more care than they have done in this section. This would have a double good effect. First the reducing the thing proposed to precise words would have the effect of making the proposition clear to the mind of the proposer ; and secondly, it would warn the public what it is necessaiy to avoid. The Act really says that if the joint owner steals or embezzles any money or other property of which he is joint owner " he shall be liable to be dealt with, tried, convicted and pun- ished, as if he had not been or were not a member of such co-partnership, or one of such beneficial owners." But, he cannot steal or embezzle it : therefore, the indict- ment for stealing or embezzling must fail. This is sufficient for me to say to determine the present case ; but there is another category. If any such joint owner unlawfully converts the same, he shall be liable to be dealt with, tried, convicted and punished, as if he had not been or were not a member of such co-partnership, or one of such beneficial owners. At worst, he is only in the position of one unlaw- fully converting. How far is that indictable ? Sec- tion 99, it is said, will meet the difficulty; but, on looking closely at that section, it will be seen that its object is to meet the case of larceny being laid in the indictment, and the obtention by false pretences, only, being proved. The indictment could not have been laid, or the case for the Crown been more satisfactorily proved, but the prosecution must fixil, because the section of the Statute could not be applied. To have had the effect 456 THE CRIMINAL STATUTE LAW sought to be given to it, the Statute should have stated that the unlav^^ful conversion of the partnership property should be deemed to be larceny. But if the Act had been drawn in that form, it can hardly be supposed it would have passed. Such a law would destroy any tangible distinction between guilt and innocence, for partners are every hour of the day found unlawfully converting the partnership property, if their Acts were strictly examined. The simple unlawful conversion of the property of ano- ther is not indictable, and it should not be made indict- able." On the first category, provided for by this section, the Enghsh and Canadian Statutes are in the same terms and since 1868, that the Statute is in operation in England, it has been, there, thought nifficiently to say that a partner who steals partnership, property is guilty of larceny. Of course the taking must he felonious, and accompanied by the necessary circumstances, and have the ingredients required to constitute it a larceny. See the English cases, cited ante. And a partner, at common law, may be guilty of larceny of the partnership's pro- perty : so may a man be guilty of larceny of his own goods, Regina vs. Webster, L. & C. 77 j Regina vs. Bur- gess, L. & C. 299 ; Regina vs. Moody, L. & C. 173 : of course, that is when the property is stolen from another person in whose custody it is, and who is responsible for it. See also, Bovill's (C. J.) opinion in Reg. vs. Dip- rose, 11 Cox, 185. As to the second category provided for by this section the words of the Statute do not seem to mean that all unlawful conversions by a partner of partnership property will be indictable, but only that, when the converting would be a misdemeanor in any other case, the fact that the property is partnership property, will not alter LARCENY ACT. 467 the nature of the offence : extending in fact to misde- meanors, the English Act, which appUes only to felonies within this kind of offences. A. and B. are in partnership, under the name of A. & Co.: there are there, three per- sons in law, 1, A ; 2, B., and 3, the firm of A. & Co. If A. talies ten dollars from the firm of A. & Co., under such circumstances that the taking would be a larceny if A. were not a member of the firm, the fact that he is such a member of the firm, and consequently joint owner of these ten dollars, will not alter the criminal nature of the taking, and A. will be guilty of larceny. Is not that what the Statute means ? Is not that what it says ? ROBBERY AND STEALING FROM THE PERSON. Sect. 39. — Whosoever robs any person, or steals any chattel, money or valuable security from the person of another, is guilty of felony, and shall be liable to be im- prisoned in the Penitentiary for any term not exceeding fourteen years and not less than two years, or to be im- prisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement. — 24- 25 Vict., ch. 96, sect. 40, Imp. Sect. 40. — If upon the trial of any person upon an in- indictment for robbery it appears to the jury upon the evidence that the defendant did not commit the crime of robbery, but that he did commit an assault with intent to rob, the defendant shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that the defendant is guilty of an assault with intent to rob ; and thereupon such defendant shall bs liable to be punished in the same manner as if he hafi ^een convicted upon an indictment for feloniously assauiiu.g with intent to rob, {next clause) 458 THE CRIMINAL STATUTE LAW. and no person so tried as is herein lastly mentioned shall be hable to be afterwards prosecuted for an assault with intent to commit the robbery for which he was so tried —24-25 Vict., ch. 96, sect. 41, Imp. Sect. 41.— Whosoever assaults any person with intent to rob is guilty of felony, and shall (save and except in cases where a greater punishment is provided by this Act) be liable to be imprisoned in the Penitentiary for any term not exceeding three years and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confine- ment.-24-25 Viet., ch. 96, sect. 42, Imp. As to requiring the oflfender to enter into recognizances and give sureties for the peace, seepost, sect. 122.— As to solitary confinement, see sect. 94 of the Procedure Act of 1869. Indictment for stealing from theperson under sect. 39— • ^^^ watch, one pocket-book and one pocket handkerchief of the^ods and chattels of J. N., of from the person of the said J. N. feloniously didVteal" take, and carry away, against the form Archbold 419. , ' The words "from the person of the said J. N." con- stitute the characteristic of this offence, as distinguished from simple larceny : the absence of force, violence or fear distinguishes it/rom robbery. The indictment need not negative the force or fear necessary to constitute robbery ; and though it should appear upon the evidence that there was such force or fear, the punishment for stealing from the person may be inflicted.— R. vs. Robinson, R. & R. 321 ; R. vs. Pearce, R. & R. 174. ' To constitute a stealing from the person, the thing LARCENY ACT, 459 taken must be completely removed from the person. Where it appeared that the prosecutor's pocket book was in the inside front pocket of his coat, and the prose- cutor felt a hand between his coat and waistcoat attempting to get the book out, and the prosecutor thrust his right hand down to his book, and on doing so brushed the prisoner's hand ; the book was just lifted out ol the pocket, an inch above the top of the pocket, but returned immediately into the pocket : it was held by a majority of the judges that the prisoner was not rightly convicted of stealing from the person, because from first to last the book remained about the person of the prose- cutor, but the judges all agreed that the simple larceny was complete. On ten judges, four were of opinion that the stealing from the person was complete. — R. vs. Thompson, 1 Mood. 78. Of course the prisoner could now, under these circumstances, be found guilty of the attempt to commit the offence, under sect. 49, of the Procedure Act of 1869. Where the prosecutor carried his watch in his waist- coat pocket, fastened to a chain, which was passed through a button-hole of the waistcoat, and kept there by a watch-key at the other end of the chain ; and the defendant took the watch out of the pocket, and forcibly drew the chain and key out of the button-hole, but the point of the key caught upon another button, and the defendant's hand being seized, the watch remained there suspended, this was held a sufficient severance. The watch was no doubt temporarily, though but for a mo- ment, in the possession of the prisoner. — Reg. vs. Simp- son, Dears. 621. In this case, Jervis, C. J., said he thought the minority of the judges in Thompson's case,, suproj were right. Where a man went to bed with a prostitute, leaving 460 THE CRIMINAL STATrtE LAW. ii his watch in his hat, on the tabh;, and the woman stole it whilst he was asleep, it was held not to be stealing from the person, but stealing in the dwelling-house.— R. vs. Hamilton, 8 C. & P. 49. Upon the trial of any indictment for stealing from the person, if no asportation be proved, the jury may convict the prisoner of an attempt to commit that offence, under «ect. 49, of the Procedure Act of 1869. In Reg. vs. Collins, Leigh & Cave 471, it was held that there can only be an attempt to commit an act, where there is such a beginning as if uninterrupted would end in the completion of the act, and that if a person puts his hand into a pocket with intent to steal, he can- not be found guilty of an attempt to steal, if there was nothing in, the pocket. But, Bishop, Cr. Law, Vol. I, 741, censures this decision. By sects. 59 and 60, of 32- 33 Vict., ch. 20, attempting to procure abortion is a crime, whether the tvoman he ivith child or not. And rightly so, it is the criminal intent, the men?, rea, which deserves punishment. But why not so for the other case ? What is the difference between putting the hand into the pocket and not finding there anything to be re- moved, and penetrating to the womb, and there finding no embryo or foetus, in the first case to steal whatever may be in the pocket, in the second case to destroy whatever there may be in tiie womb.— Bishop, he. cit. Indictment for robbery under sect. 39.— in and upon one J. N. feloniously did make an assault, and him, the said J. N., in bodily fear and danger of his life then felo- niously did put, and the moneys of the said J. N., to the amount of ten pounds, from the person and against the will of the said J. N. then feloniously and violently did steal, take and carry away, against the foim Arch- bold, 419. LARCENY" ACT. 401 The indictment may charge the defendant with having assaulted several persons, and stolen different sums from 8uch, if the whole was one transaction. — Archboid, loc. cit. The crime of robbery is a species of tlieft, aggravated by the circumstances of a takhig of the property //-ow the person or whilst it is under tJie protection of the person by means either of violence " or" putting in fear. — 4th Rep. Cr. L. Conimrs. LXVII. Robbery is larceny committed by violence from the person of one put in fear. — Bishop, 2 Cr. Law. 115G. This definition differs in the form of expression, tliough not in substance, from what has been given by preceding authors. To constitute this offence, there must be, 1, a larceny embracing the same elements as a simple larceny. 2. Violence, but it need only be slight, for anything which calls out resistance is sufficient, or what will answer in place of actual violence, there must be such demonstra- tions as put the person robbed in fear. The demonstra- tions of fear must be of a physical nature, (a threatened charge of a crime falling now^ under sect. 45.) And 3, the taking must be from what is technically called the '* per- son", the meaning of which expression is, not that it must necessarily be from the actual contact of the person, but it is sufficient if it is from the personal protection and presence. — Bishop, Stat, crimes, 517. 1. Larceny, — Robbery is a compound larceny, that is it is larceny aggravated by particular circumstances. Thus, the indictment for robbery must contain the des- cription of the property stolen as in an indictment for larceny : the ownership must be in the same waAr set out, and so of the rest. Then if the aggravating matter is not proved at the trial, the defendant may be convicted of the 402 THE CRFMINAIi STATUTE LAW simplelurceuy. If a statute makes n larceny to steal a thing of which there could be no larceny at the common law, then it becomes, by construction of law, a robbery, to take this thing forcibly and feloniously from the person of one put in fear.. Bishop, 2 Cr. Law, 1158,1169, 1160. An actual tak- ing either by force or upon delivery must be proved, that is, it must appear that the robber actually gotposscssion of the goods. Therefore if a robber cut u man's girdle in order to get his purse, and the purse thereby full to the ground, and the robber run off' or be apprehended before he can take it up, this would not bo robbery, because the purse was never in the possession of the robber.~l Hale, P. C. 553. But it is immaterial whether the taking were by force or upon delivery, and if by delivery, it is also immaterial whether the robber have compelled the prosecutor to it by a direct demand in^the ordinary way, or upon any colourable pretencc—Archbold, 417. A carrying away must also be proved as in other cases of larceny. And therefore where the defendant, upon meeting a man carrying a bed, told him to lay it down or he would shoot him, and the man accordingly laid down the bed, but the robber, before he could take it up so as to remove it from the place where H lay, was apprehended, the judges held that the robbery was not complete.— R. vs. Farrell, 1 Leach, 362 ; 2 East P. C. 557. But a momentary possession though lost again in the same instant, is sufficient. James Lapier was convicted of robbing a lady and taking from her person a diamond earring. The fact was that as the lady was coming out of the opera house she felt the prisoner snatch at her ear- ring and tear it-from her ear, which bled, and she was much hurt, but the earring fell into her hair, where it tAhclENV ACT, 403 >va8 found after she l-eturned home. The judges were all of opinion that the earring being in the possession of the prisoner for a moment, separate from the lady's person, was sufficient to constitute robbery, although he coiihl not retain it, but probably lost it again tlo same instant. —2 East P. C. 557. If the thief once takes possession of the thing, the offence is complete, though he afterwards return it : as if a robber finding little in a purse which he had taken from the owner, restored it to him again, or let it full in struggling, and never take it up again, having once had possession of it. — 2 East, loc. cit.; 1 Hale, 533 ; R. vs. Peat, 1 Leach, 228; Archbold 417. The taking must have been feloniously done, that is to say animofurandi, as in larceny, and against the will of the party robbed, that is, that they were either taken from him by force and violence, or delivered up by him to the defendant, under the impression of that degree of fear and apprehension which is necessary to constitute robbery. — Archbold, 417. Where on an indictment for robbery, it appeared that the prosecutor owed the prisoner money, and had pro- mised to pay him five pounds, and tiie prisoner violently assaulted the prosecutor, and so forced him then and there to pay him his debt, Erie, C. J., said that it was no rob- bery, there being no felonious intent. — Reg. vs. Hem- mings, 4 F. & F. 50. 2. Violence. — The prosecutor must either prove that .he was actually in bodily fear from the defendant's actions, at the time of the robbery, or he must prove cir- cumstances from which the court and jury may presume such a degree of apprehension of danger as would induce the prosecutor to part with his property ; and in this lat- .ter casp,,if the circumstances thus proved be such as 4n4 TIIK nilMINAL HTATUTK I,AW. are nilculuto.l to oriMito hucIi u Inir, ilu* court will not pursue tho ii„,i,iry furtlu'r, and (.x«n.i|,e wlu«tlu)r tlio l«'ur actimlly oxist,..!. Thcroforo if u man knock another •lovvn, and Hteul from him hin property whilst ho in inson- Mhlo on the ground, that in roblu ry. Or suppose a man makes a manful resJHlnnee, but is overpowered and hi,H property tak.m liom him by the mere dint of suj.erior Ntrength, this is a robbery.— Foster, U'S ; 1{. vs. J)avies •J Kast P. C. 7()!>. ' On Mrs. Jellri-s eoming out of a ball, at St. James' Pahuv, where she had been as one (»f the nuiidsof iionor the prisoiuM- snatched a diamond pin from Iut headdresn with sueh f.uee as to n'lnove it with part of the hair from tlu> |)lace in whieh it war, fixed, and ran away with it • held, to be a mbbery.-K .vs. M.iore, I I.eaeh, im. See supra, Lapier se, I J.each, -]:>0. Where the Ueiendant h.id hold of the seals and ehain of the prosecutor's wateh and pulled the watch out of hisfob but the watch, beinir secured by a steel chain which went round the pros(.cutor's neck, the defendant could not take It untd, by p.dlin.ir and two or three jerks, he broke the Hian., and then ran olf with the watch; this was holden to be robbery.-K. vs. Mason, Kus. & Ry. 4l9.~But merely stiatching property fron: a person unawares, and runnmg away with it, will not be robbery,— K. vs Stew- ard 2 East P. 0. 70-:>; R. vs. Horner, Id. 708 ; R. vs Baker, I Leach, o{,o ; R. vs. Robins, do, do ; R. vs* Macauly, 1 Leach, 287 ; Archbold, 414,— because thi'r cannot m fact be presumed in such a case.— Whi-n the prisoner caught hold of the prosecutor's watch-chain, and jerked his watch from his pocket with considerable force upon which a scuffle ensued, and the prisoner was ' secured, Garrow, B., held that the force used to obtain the n^ai^^ did not make the offence amount to robbery LAnCENY ACT. 40^ nor (lid the force uhimI aftcrw jtnls in the scuffle ; for tlio Ibrco ncccHHury to constitutu robbery rniiHt bo eith ' such accusation to extort money : but it is mater. . considering the question, whether, under the circumstances of the case, the inten tion of the prisoner was to extort money or merely to compound a felony.— Reg. vs. Richards, 11 Cox, 43. In Archbold, 426, this last decision seems not to be approved of. A person threatening A.'s father that he would accuse A. of having committed an abominable offence upon a mare for the purpose of putting off the mare, and forcing the father, under terror of the threatened charge to buy and pay for her at the prisoner's price, is guilty of threatening to accuse within this section. — Reg. vs. Redman, 10 Cox, 169. On the trial of an indictment for threatening to accuse a person of an abominable crime, with intent to extort money, and by intimidating the party by the threat, in fact obtaining the money, the jury need not confine themselves to the consideration of the expressions used beforiB tl^ money was given, but may, if those expression are equivocal, connect with them what was afterwards said by the prisoner when he was taken into custody.— Reg. vs. Kain, 8 C. & P. 187. OBTAINING THE EXECUTION OF A DEED, ETC., ETC., BY THREATS OR VIOLENCE. Sect. 47. — Whosoever, 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 LARCINY ACT. 487 person of any treason, felony, or infamous crime as hereinbefore 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 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 or to any paper or parchment, in order that the same may be afterwards made or converted hito or used or dealt with as a valuable security, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life, or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement. — 24-25 Vict. ch. 96, sect. 48, Imp. As to requiring recognizances and sureties for keeping the peace in felonies under this Act, see post, sect. 122. As to soHtary confinement, see sect. 94, of the Proce- dure Act of 1869. On this clause, Greaves says : " This clause is new. It will meet all such cases as Reg. vs. Phipoe, 2 Leach, 073, and R. vs. Edwards, 6 C. & P. 521, where persons by violence to the person or by threats of accu- sation of crimes, induce others to execute deeds, bills of exchange or other securities. GENERAL CLAUSE ON THREATS, MENACES, ETC., ETC. Sect. 48.— It shall be immaterial whether the menaces er threats hereinbefore mentioned be of violence, injury or accusation to be caused or made by the offender or by any other person.— 24-25 Vict., ch. 96, sect. 49, Imp. This clause is new, says Greaves j it is intended to meet cases where a letter may be sent by one person 499 THE CRIMINAL STATUTE LAW, and may contain menaces of injury by another, and to- remove the doubts occasioned by Rex. vs. Pickford, 4 C. & P. 227. In Reg. vs. Smith, 1 Den. 510, the threat by a person writing a letter of an injury to be made by a third person [was held within the Statute, before this clause. Of course, now, this is clear law, whatever doubts may have existed heretofore. BURGLARY. GENERAL REMAKES. Burglary, or nocturnal housebreaking, hiirgi latroci" nium, which by our ancient law, was called Jmmesechen, has always been looked upon as a very heinous ofFence, For it always tends to occasion a frightful alarm, and often leads by natural consequence to the crime of murder itself. Its malignity also is strongly illustrated by considering how particular and tender a regard is paid by the laws of England to the immunity of a man's liouse, which it styles its castle, and will never suffer to be violated with impunity ; agreeing herein with the sentiments of Ancient Rome, as expressed in the words of Tully {Pro Domo, 41) " quid enini sanctim, quid omni religione munitius, quam domus imiuscujusqm civium f '^ For this reason no outward doors can, in general, be broken open to execute any civil process, though, in crim- inal casesjthe public safety supersedes the private. Hence, also, in part arises the animadversion of the law upon eavesdroppers, nuisancers, and incendiaries ; and to this principle, it must be assigned, that a man may assemble people together lawfully, (at least if they do not exceed eleven) without danger of raising a riot, rout or unlaw- ful assembly, in order to protect and defend his house, which he is not permitted to do in any other case. Stephen's Comment, Vol. 4, 104; Blackst. Comment, Vol. 4, 223. Burfflarvis a brefikinir and enterinjr the mansion-house jjO 490 THE CRIMINAL STATUTE LAW. of uuotlier in the night, with intent to commit some felony within the same, wiiotlier sucli felonious intent be executed or not. — 2 Russell, I ; Chitty, 1101. In which definition there are four things to be considered, the time the place, the manner, and the intent. The time. — The time must be by night and not by day, for in the day time there is no burglary. As to what is reckoned night and' what day for this puq)ose, anciently the day was accounted to begin only at sunrishig, and to end immediately upon sunset ; but the better opinion afterwards was that if there were daylight or crqmscuhtm enough, begun or left, to discern a man's face withal, it was no burglary. But this did not extend to moonlight, for then many midnight burglaries would have gone unpunished ; and besides, the malignity of the oflence does not so properly arise from its being done in the dark, as at the dead of night, when all creation is at rest. But the doctrines of the common law on this subject are no longer of practical importance, as it is enacted by 32-33 Vict., ch. 21, sect. 1, that for the purposes of that Act, and in reference to the crime now under consid- eration, " the night shall be deemed to commence at nine of the clock in the evening of each day, and to conclude at six of the clock in the morning of the next succeeding day, and the day shall include the remainder of the twenty-four hours." 4 Blackst. 224 ; 4 Steph. Com. 105 J 2 Russell, 39. The breaking and entering must both be committed in the night-time ; if the break- ing be in the day, and the entering in the night, or vice versa, it is no burglary.— 1 Hale, 551. But the break- ing and entering need not be both done in the same night : for if thieves break a hole in a house one night, with intent to enter another night and commit felony and come accordingly another night and commit a felony. LARCENY ACT. 491 seems to be burglary, for the breaking and entering were both nodanter, though not the same night. — 2 Kussell, 39. Tlic breaking on Friday night with intent to enter at a future time, and the enterhig on the Sunday night constitute burglary. — 11. vs. Smith, Uuss. & Ky. 417. And then, the burglary is supposed to have taken place on the night of the entry, and is to be charged as such. — 1 Hale, 551. In Jordan's case, 7 C. & P. 432, it was held that where the breaking is on one night and the entry on another, a party present at the breaking, but absent at the entry, is a principal. llie place. — The breaking and entering must take place in a mansion or dwelling-house to constitute burglary. At the common law, Lord Hale says that a church may be the subject of burglary, 1 Hale, 559, on the ground, according to Lord Coke, that a church is the mansion house of God, though Hawkhis, 1 vol. 133 does not approve of that nicety, as he calls it, and think, that burglary in a church seems to be taken as a distinct bur- glary from that in a house. However, this offence is now provided for by sections 49 and 5G of the Larceny Act. What is a dwelling house I — From all the cases, it appears that it must be a place of actual residence. Thus a house under repairs, in which no one lives, though the owner's property is deposited there, is not a place in which burglary can be committed, R. vs. Lyons, 1 Leach, 185 : in this case, the proprietor of the house, nor any of his family, nor any person whatever had yet occupied the house. In Fuller's case, 1 Leach, note, loc cit., the defendant was charged of a burglary in the dwelling-house of Henry Holland. The house was new built, and nearly finished : a workman who was constantly employed by Holland 492 THE CRIMINAL HTATUTK LAW. slept ill it for the piirposo of protecting it : but none of Holland's liunily iiad yet taken posseHsiou of tlio lioiise^ and the Court held that it was not the dvvolling-hoiiso of Holland, — and where the owner has never by himself or by any of his family, slept in the house, it is not his dwelling-house, so as to make the breaking thereof bur- glary, though he has used it tor his meals, and all the purposes ot his business.— R. v.*. Martin, Kuhs & Ky. 108. If a porter lie in a warehouse for the purpose of protecting goods, R. vs. Smith, 2 East, 497, or a servant lie in a barn in order to watch thieves, R. vs. Brown 2 East, 501, this does not make the warehouse or barn a dwelling-house in which burglary can be committed. But if the agent of a public company reside at a ware- house belonging to his employers, this crime may be com- mitted by breaking it, and he may be stated to bo the owner.— R. vs. Margetts, 2 Leach, 931. Where the landlord of a dwelling-house, after the ten;uit, wliose furniture he had bought, had quitted it put a servant into it, to sleep there at night, until he should re-let it U> another tenant, but had no intention to reside in it himself: the judges held that it could not be deemed the dwelling-house of the landlord.— R. vs. Davis, 2 Leach, 876. So where the tenant had put all his goods and fur- niture into the house, preparatory to his removing to it with his family, but neither he nor any of liis family had as yet slept in it, it was holden not to be a dwelling-houso in which burglary can be committed. R. vs. Hallard, 2 East, 498 ; R. vs. Thompson, 2 Leach, 771. And the same has been ruled, when under such circumstances^ the tenant had put a person, not being one of the family, into the house, for the protection of the goods and furni- ture in it, until it should be ready for his residence.- R. vs. Harris, 2 Leach, 701 ; R. vs. Fuller, 1 Leach, 187. LARCENY ACT. 49:^ A liouse will not ceaso to be the house of its owner, on ucoount of his occasional or temporary absence, even if no one sleep iti it, provided the owner has an animus rcvcrtendi.-"\i,\H. Murray, SEast, 490; and in R. vs. Kirk- ham, 3 Starkie, Yj\. 279 ; Wood, B., heldtliat the oft'enco of stealing in a dwelling-house had been committed, although the owner and his family had left six months before, having left the furniture and intending to return. — Idem, Mitbrovvn'scase, 2 East, 490. And thougii a man leaves his house and never means to live in it again, yet if he uses part of it as a shop, and lets his servant and hi* family live and sleep in another part of it, for fear the place should be robbed, and lets the rest to lodgers, the habitation by his servant and family will be a habitation by hnn, and the shop nuiy still be considered as part of his dwelling-house. — II. vs. Gibbons, R. &. Ry. 442. But where the prosecutor, an upholsterer, left the house in which he had resided with his family, without any intent of returning to live in it and took a dwelling-house else- where, but still retained the former house au a warehouse and workshop ; two women employed by him as work- women in his business, and not as domestic servants, slept there to take care of the house, but did not have their meals there, or use the house, for any other purpose than sleeping in it as a security to the house ; the judges held that this was not properly described as the dwelling-house of the prosecutor. — R. vs. Flannagan, R. &. R. 187. The occupation ol a servant in that capacity, and not as tenant^ is in many cases the occupation of a master, and will be a sufficient residence to render it the dwelling-house of the master.— R. vs. Stock, R. & R. 185 ; R. vs. Wilson, R. & R. 115. Where the prisoner was inuicted for bur- glary in the dwelling-house of J. B. J. B- worked for one W. who did carpenter's work for a public com- 494 THE CRIMINAL STATUTE LAW. pany and pit J. B. into the house in question, which belonged to the company, to take care of it, and some mills adjoining: J. B. received no more wages after than before he went to live in the house. It was held not rightly laid.— R. vs. Rawlings, 7 C. & P. 350.— If a servant live in a house of his master^s at a yearly rent, the house cannot be described as the master's house— R. vs. Jarvis, 1 Mood. 7.— Every permanent building, in which the renter or owner and his family dwell and lie, is deemed a dwelling house, and burglary may be committed in it. Even a set of chambers in an inn of court or college is deemed a distinct dwelling- house for this purpose.— Archbold, 490. And it will be sufficient if any pai-t of his family reside in the house. Thus where a servant boy of the prosecutor always slept over his brew-house, which was separated from his dweUing-house by a public passage, but occupied there- with, it was holden, upon an indictment for burglary, that the brew-house was the dwelling-house of the prose- cutor, although, being separated by the passage, it could not be deemed to be part of the house in which he him- self actually dwelt.— R. vs. Westwood, R. & R. 495. Burglaiy cannot be committed in a tent or booth in a market or fair, even although the owner lodge in it, be- cause it is a temporary, not a permanent edifice, 1 Hale, 557 ; but if it be a permanent building, though used only for the purpose of a fair it is a dwelling-house.— R. vs. Smith, 1 M. & Rob. 256. So even a loft, over a stable, used for the abode of a coachman, which he rents for his own use and that of his family, is a place which may be burglariously broken.— R. vs. Turner, 1 Leach, 305. If a house be divided, so as to form two or more dwelling-houses, within the meaning of the word in the r,i,,~,^^.j aiiyi ail iniciiiiii uumiiiuiiication oe LARCENY ACT. 49.> cut off, the partitions become distinct hoi^ses and e&ch part will be regarded as a mansion.— R. vs. Jones, 1 Leach, 537. But a house the joint property of partners in trade in which their business is carried on, may be described as the dwelling-house of all the partners, though only one of the partners resides in it.— R. vs. Athea, 1 Mood. 329. If the owner, who lets out apartments in his house to other persons, sleep under the same roof, and have but one outer door common to him and his lodgers, such lodgers are only inmates and all their apart- ments are parcel of the one dwelling-house of the owner. But if the owner do not lodge in the same house, or if he and the lodgers enter by different outer-doors, the apart- ments so let out are the mansion for the time being of each lodger respectively, even though the rooms are let by the year.— 2 East, 505. If the owner let off a part, but do not dwell in the part he reserves for himself, then the part let off is deemed in law the dwelling-house of the party who dwells in it, whether it communicates internally with the other part or not ; but the part he has reserved for himself is not the subject of burglary: it is not his dwelling-house, for he does not dwell in it, nor can it be deemed the dwelling-house of the tenant, for it forms no part of his lodging.— R. vs. Rodgers, R. vs. Carrell, R. vs. Trapshaw, 1 Leach, 89, 237, 427. If the owner let the whole of a dwelling-house, retaining no part of it for his or his family's dwelling, the part each tenant occupies arid dwells in is deemed in law to be the dwelling-house of such tenant, whether the parts holden by the respec- tive tenants communicate with each other internally or not.— R. vs. Bailey, 1 Mood. 23; R. vs. Jenkins, R. & R. 244 ; R. vs. Carroll, 1 Leach, 237. The term " dwelling-house" includes in its legal signi- fication all out-hoiises occupied with and immediately 49G THE CRIMINAL STATUTE LAW. communicating with the dwelling-house. But by 32- 33 Vict., ch 21, seot. 52, (^24-25 Vict., ch. 96, sect. 53, Imp.) no building, although within the same curtilage with any dwelling-house, and occupied therewith, shall be deemed to be part of such dwelling-house % any of the purposes of this Act, unless there shall be a com- munication between such building and dwelling-house, either imm*^diate or by means of a covered and enclosed passage leading from the one to the other. Where the prosecutor's house consisted of two living-rooms, another room used as a cellar, and ii wash-house on the ground floor, and of three bed-rooms up-stairs, one of them over the wash-house, and the bedroom over the house- place communicated with that over the wash-house, but there was no internal communcation between the wash-hous? and any of the rooms of the house, but the whole was under the same roof, and the defendant broke into the wash-house, and was breaking through the partition-wall between the wash-house and the house- place, it was holden that the defendant was properly convicted of burglary in breaking the house. — R. vs. Burrowes, 1 Mood. 274. But where adjoining to the house was a kiln, one end of which was supported by the wall of the house, and adjoining to the kiln a dairy, one end of which was supported by the wall of the kiln, the roofs of all three being of different heights, and there being no internal communication from the house to the dairy, it was held that burglary was not committed by breaking into the dairy. — R. vs, Higgs, 2 C. & K. 322. To be within the meaning of this section, the building must be occupied with the house in the same right ; and therefore where a house let to and occupied by A. ad- joined and communicated with a building let to and occupied by A, and B,, it was holden that the buildin^. LARCENY ACT. 497 pould not be considered a part of the dwelling-house of A. — E. vs. Jenkins, R. & l{. 224. If there be any doubt as to the nature of the building broken and entered, a count may be inserted for breaking and entering a build- ing within the curtilage, under sect. 54, -post. It is necessaiy to state with accuracy in the indict- ment, to whom the dwelling-house belongs. — 1 Burn's, Just., 554. But in all cases of doubt, the pleader should vary in different counts the name of the owner, although there can be little doubt that a variance in this respect would be amended at the trial. — Archbold, 496 ; 2 Rus- sel, 47, 49. — As to the local description of the house, it must be proved as laid : if there be a variance between the indictment and evidence in the parish, &c., &:., where the house is alleged to be situate, the defendant must be acquitted of the burglary, unless an amendment be made^ To avoid ditficulty, different counts should be inserted, varying the local description. If the house be not proved to be a dwelling-house, the defendant must be abquitted of the burglary but found guilty of the simple larceny, if larceny is proved. — Archbold, 489, 496. The manner.— There must be both a breaking and an entering of the house. The breaking is either actual or constructive. Every entrance into the house by a tres- asser is not a breaking in this case. As if the door of a mansion-house stand open, and the thief enter, this is not breaking ; so if the window of the house be open, and a thief with a hook or other engine draweth out some of the goods of tlie owner, this is no burglary, because there is no actual breaking of the house. But if the thief breaketh the glass of a window, and, with a hook or other engine draweth out some of the goods of the owner, this is burglary, for there was an actual breakinsr of the house. — 1 Hale, 551. Where a window J: 498 THE CRIMINAL STATUTE LAW. Il^ was a little open, and not sufficiently so to admit a person, and the prisoner pushed it wide open and got in, this was held to be no sufficient breaking. — R. vs. Smith, 1 Mood. 178. If there be an aperture in a cellar window to admit light, through which a thief enter in the night, this is not burglary. — R. vs. Lewis, 2 C. & P. 628 ; R. vs. Spriggs, 1 Mood. & R. 357. — There is no need of any demolition of the walls or any manual violence to consti- tute a breaking. Lord Hale says *' and these acts amount to an actual breaking, 'vi^., opening the case- ment, or breaking the glass window, picking open a lock of a door with a false key, or putting back the lock with a knife or dagger, unlatching the door that is only latched, to put back the leaf of a window with a dagger." In Robert's alias Chamber's case, 2 East 487, where a glass window was broken, and the window opened with the hand, but the shutters on the inside were not broken, this was ruled to be burglary by Ward, Powis and Tracey, justices, and the Recorder; but they thought this the extremity of the law ; and, on a subsequent con- ference, Holt, C.J., and Powel, C.J., doubting and inclining to another opinion, no judgment was given. In Bailey's case, R. & R. 341, it was held by nine judges that introducing the hand between the glass of an outer window and an inner shutter is a sufficient entry to constitute burglary. If a thief enter by the chimney, it is a breaking ; for that is as much closed as the nature of things will pennit. And it is a burglarious breaking, though none of the rooms of the house are entered. Thus in R. vs. Brice, R. & Ry. 450— the prisoner got in at a chimney and lowered himself a con- siderable way down, just above the mantel piece of a room on the ground floor. Two of the judges thought LARCENY ACT. 499 lie was not in the dwelling-house, till he was below the .chimney-piece. The rest of the judges, however, held -otherwise ; that the chimney was part of the dwelling, house, that the getting in at the top was a breaking of the dweUmg-house, and that the lowering himself was an entry therein. Where the prisoner effected an entry, by puUing down the upper sash of a window, which had not been fastened, but merely kept in its place by the pulky weight: the judges held this to be a sufficient breaking to constitute burglary even although it also appeared that an outside shutter, by which the window was usually secured, was not closed or fastened at the time.-R. vs. Haines, R. & n r^ ""^ ^" ^"^'^ "^^^ ^^"^^*^^' ^''^ int<> an outer cellar by lifting up a heavy iron grating that led into it, and then into the house by a windoM^, and it appeared that the wmdow, which opened by hinges, had been fastened by means of two nails as wedges, but could, not- withstanding, easily be opened by pushing, the judges held that opening the window, so secured, was a break- ing sufficient to constitute burglary.— R. vs. Hall, R. & R. 355.-S0, where a party thrust his arm through the broken pane of a window, and in so doing broke some more of the pane, and removed the fastenings of the window and opened it.— R. vs. Robinson, 1 Mood. 327. But, if a window thus opening on hinges, or a door, be nor fastened at all, opening them would not be a break- ing withm the definition of burglary. Even where the heavy flat door of a cellar, which would keep closed hy its own weight, and would require some degree of force to raise it, was opened : it had bolts by which it might have been fastened on the inside, but it did not appear that It was so fastened at the time, the judges were divided in opinion whether the opening of this door was oa 500 THE CRIMINAL STATUTE LAW. iil such a breaking of the house as constituted burglary : six thinking that it was, and six that it was not. R. vs, Callan, R. & R. 157.— It was holden in Brown's case that it was. — 2 East, 487. — In R. vs. Lawrence, 4 C. & P. 231, it was holden that it was not. — In R. vs. Rus- sell, 1 Mood. 377, it was holden that it was. Where the offender, with intent to commit a felony, obtains admission by some artifice or trick for the purpose of effecting it, hg will be guilty of burglary, for this is a constructive bre*aking. Thus, where thieves, having an intent to rob, raised the hue-and-cry, and brought the constable, to whom the owner opened the door ; and when they came in, they fcound the constable and robbed the owner, — this was held a burglary. So if admission be gained under pretence of business, or if one take lodging with a like felonious intent, and afterwards rob the landlord, or get possession of a dwelling-house, by false affidavits, without any colour of title, and then rifle the house, such entrance being gained by fraud, it will be burglarious. In Hawkin's case, she was indicted for burglary : upon evidence it appeared that she was ac- quainted with the house, and knew that the family were in the country, and, meeting with the boy who kept the key, she prevailed upon him to go with her to the house, by the promise of a pot of ale ; the boy accord- ingly went with her, opened the door and let her in, whereupon she sent the boy for the pot of ale, robbed the house and went off, and this being in the night time it was adjudged that the prisoner was clearly guilty of burglary.— 2 East P. C. 485. If a servant coK.^pire with a robber, and let him into the house by night, this is burg- lary in both, 1 Hale, 553, for the servant is doing an unlawful act ; and the opportunity afforded him of doing it with greater ease rather aggravates than extenuates LARCENY ACT, 501 rs case the guilt. But if a servant, pretending to agree with a robber, open the door and let him in for the purpose of detecting and apprehending him, this is no burglary, for the door is lawfully open.— Reg. vs. Johnson, C. & M. 218. And the breaking necessary to constitute burglary is not restricted to the breaking of the outer wall or doors, or windows of a house : if the thief get ad- mission into the house by the outer door or windows being open, and afterwards breaks or unlocks an inner door, for the purpose of entering one of the rooms in the house, this is burglary, 1 Hale, 553 ; 2 East P. C. 488. So if a servant open his master's chamber door, or the door of any other chamber not immediately within his trust, with a felonious design, or if any other person lodging in the same house, or in a public inn, open and enter another's door with such evil intent, it is burglary. —2 East P. C. 491 ; 1 Hale, 553 ;— Reg vs. Wenmouth, 8 Cox, 348. — The breaking open chests is not burglary. 1 Hale, 554. — The breaking must be of some part of the house ; and, therefore, where the defendant opened an area gate with a skeleton key, and then passed through an open door into the kitchen, it was holden not to be a breaking, there being no free passage from the area to the house in the hoursof sleep.— R. vs. Davis, R. & R. 322; R. vs. Bennett, R. & R. 289 ; R. vs. Paine 7 C. & P., 135.— It is essential that there should be an entry as well as a breaking, and the entry must be connected with the breaking.— 1 Hale, 555 • Reg. vs. Davis, 6 Cox, 3G9 ; R. vs. Smith, R. & R. 41 7^ ante. It is deemed an entry when the thief breaketh the house, and his body or any part thereof, as his foot or his arm, is within any part of the house ; or when he putteth a gun into a window which he hath broken, though the hand be not in, or into a hole of the house which he hath m THE CRIMINAL STATUTE LAW. made, with intent to murder or kill ; this is an entry and breaking of the house ; but if he doth barely break the house, without any such entry at all, this is no burglary. 3 Inst. 64 ; 2 East, P C. 490.— Thieves came by night to rob a house : the owner went out and struck one of them, another made a pass with a sword at persons he saw in the entry, and, in so doing, his hand was over the thres- hold : this was adjudged burglary by great advice. 2 East. P. C, 490. In Gibbon's case, evidence that the prisoner in the niwht time cut a hole in the window-shutters of a shop, part of a dweUing-house, and putting his hand through the hole took out watches, &c., &c., was holden to be burglary, although no other entry was proved. — 2 East, P. C. 490. Introducing the hand through a pane of glass, broken by the prisoner, between the outer window and an inner shutter, for the purpose of undoing the window latch, is a sufficient entry. — R. vs. Bailey, R. & R. 341. So would the mere introduction of the oftender's finger. — R. vs. Davis, R. & R. 499. So an entry down a chimney is a sufficient entry in the house, for a chimney is part of the house. — R. vs. Brice, R. & R. 450. It is even said that discharging a loaded gun into a house is a sufficient entry.— J Hawkins, 132. Lord Hale, 1 vol. 155, is of a contrary opinion, but adds qucere ? East 2 P. C. 490, seems to incline towards Hawkins' opinion. Where thieves bored a hole through the door with a centre-bit, and parts of the chips were found in the in- side of the house, this was holden not a sufficient entry to constitute burglary.— R. vs. Hughes, 2 East, P. C. 491. If divers come in the night to do a burglary, and one of them break and enter, the rest of them standing to watch At a distance, this is burglary in all— 1 Burn's Just. 550. LARCENY ACT. 503 The entry neetl not be at the same time as the break- ing.— R. vs. Smith, R. & R. 417, supra. In Reg. vs. Spanner, 12 Cox, 155, Bramwell B. held, that an attempt to commit a burglary may be established on proof of a breaking with intent to rob the house, although there be no proof of an actual entry. The prisoner was indicted for burglary, but no entry having been proved, a verdict for an attempt to commit a burglary was given. The intent— There can be no burglary but where the indictment both expressly alleges, and the verdict also finds an intention to commit some felony ; for if it appear that the offender meant only to commit a trespass, as to beat the party or the like, he is not guilty of burglary. — 1 Hale, 561 : whether a felony at common law or by statute is immaterial.— The intent must be proved as laid. Where the intent laid was to kill a horse, and the intent proved was merely to lame him, in order to prevent him from running a race, the variance was holden fatal.— R. vs. Dobbs, 2 East., P. C. 513. It is immaterial whether the felonious intent be executed or not : thus, they are burglars, who, with a felonious intent, break any house or church in the night, although they take nothing away. And herein this offence differs from robbery, which requires that something be taken, though it be not material of what value. The felonious intent with which the prisoner broke and entered the house cannot be proved by positive testimony : it can only be proved by the admission of the party, or by circumstances from which the jury may presume it. Where it appears that the prisoner actually committed a felony after he entered the house, this is satisfactory evidence, and almost con- clusive, that the intent with which he broke and entered the house was to commit that felony. Indeed, the very .fjiv b.n 504 THE CRIMINAL STATUTE LAW. fact of a man's breaking and entering a dwelling-house in the night time is strong presumptive evidence that he did so with intent to steal, and the jury will be warranted in finding him guilty upon this evidence mere- ly. — II. vs. Brice, R. & R. 450 j Reg. vs. Spanner, 12 Cox, 155. If the intent be at all doubtful, it may be laid in different ways in different counts. — R. vs. Thomson, 2 East, P. C. 515 ; 2 Russell, 45. It seems sufficient in all cases where a felony has actually been committed, to allege the commission of it, as that is sufficient evidence of the intention. But the intent to commit a felony, and the actual commission of it, may both be alleged ; and in general this is the better mode of statement. — R. vs. Furnival, R. & R. 445. As to punishment, indictment, &c., &c., see postf on sect. 51. It will be observed that the entry may be before the breaking as well as after : for, though there were once different opinions upon the question as to whether the breaking out of a house to escape, by a man who had previously entered by an open door with intent to commit a felony, was burglary, all doubts are now removed by sect. 50 of the Larceny Act, post. BREAKING AND ENTERING A CHURCH OR CHAPEL, AND THEREIN COMMITTING A FELONY. Sect. 49. — Whosoever breaks and enters any church, chapel, meeting-house, or other place of Divine worship, and commits any felony therein, and breaks out of the same, is guilty of felony, and shall be liable to be im- l^risoned in the Penitentiary for life or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for anv term less than two vears, LARCENY ACT. 506 with or without hard labour, and with or without soli- tary coulinement.— 24-25 Vict. ch. 96, sect. 60, Imp. CJreaves says : " This clause clearly includes every place of public worship, the former enactments were contined not only to stealing, but to stealing any chattel. — (Sect. 17, ch. 92, (Cons. Stat. Can.) Therefore stealing fix- tures was not within thern.~Reg. vs. Barker, 3 Cox, 681. The present clause includes any lelony, and this clause and the eight subsequent clauses are in this respect made uniform." The breaking and entering required to constitute an offence under this section aro of the same nature as in burglary, except that they need not be in the night time. If the breaking is with intent to commit a felony, but no felony be actually committed, the oflence falls under sect. 56, post. A tower of a parish church is parcel of a church, R. vs. Wheeler, 3 C. & P. 585 ; so is the vestry, R. vs. Evans, C & Mar. 298. The goods of a dissenting chapel, vested in trustees, cannot be described as the goods of a servant, put in charge of the chapel and the things in it — R. vs. Hut- chinson, R. & R. 412. Where the goods belonging to a church are stolen, they may be laid in the indictment lo be the goods of the parishioners— 2 Russell, 73. As to requiring sureties, in felonies under this Act, see post sect. 122. — As to solitary confinement, see sect. 94 of the Procedure Act of 1869. Indictment for breaking and entering a church and steal- ing therein. — the church of the parish of in the county of feloniously did break and enter, and then, in the said church, one silver cup of the goods and chattels, of the parishioners of the said parish feloniously did steal, take and carry away against the form Arch- bold. 395. GOd THE CRIMINAL STATUTE LAW Indictment for stealiny in aniUmahing out of a church . . . . one silver cup, of tho goods and chattels of the par. ishioners of the parish of. . . .in the county of. in tlio church of the said parish there situate, feloniously did steal, take and carry away; an«e9 «uch case made and provided, and against the peace of Our Lady the Queen, her crown and dignity.— Archbold, 489. Upon this indictment, the defendant, if all the facts are proved as alleged, may be convicted of burglary ; if they are all proved, with the exception that the breaking was by night, the defendant rnay be convicted of house-break ing, under sect. bb,post; if no breaking be proved, but the value of the property stolen proved to be as alleged, over twenty-five dollars, the verdict may be of stealing in a dweUing-house to that amount, under sect. 61, post; if no satisfactory evidence be offered to show, either that the house was a dwelling-house, r some building com- municating therewith, or that it was the dwelling-house of the party named in the indictment, or that it was locally situated as therein alleged, or that the stolen property was of the value of five pounds, still the defen- fint may be convicted of a simple larceny — 1 Taylor, evid. 216 ; Archbold, 4S9 ; R. vs. Withal, 1 Leach, 88 •, R. vs. Comer, ] Leach, 36 ; R. vs. Hungerford, 2 East P. C. 518.— Where several persons are indicted together for burglary and larceny, the offence of some may be burg- lary, and of the others only larceny.— R. vs. Butterworth ; R. & R. 520. See post remarks under, sect. 53. If no felony was coxiimitted in the house, the indict- ment should be as follows : — That A. B. on about the hour of eleven in the night of the same day, at the dwelhng-house of J. N. there situate, feloniously and burglariously did break and enter, with intent the goods and chattels of the said J. N. in the said dwelling-house then and there being found, then and there feloniously and burglariously to steal, take and carry away, against {.as in the last precedent = Chitty, 1118. 510 THE CRIMINAL STATUTE LAW. See post sections 56 and 57, which apply undoubtedly to burglary, where an intent to commit a felony only is charged in the indictment, as in this last form. Theternis of art. usually expressed by the averment feloniously and burglariously did break and enter/' are essentially necessary to the indictment. The word hur glariously cannot be expressed by any other word or cir- cumlocution ; and the averment that the prisoner broke and entered is necessary, because a breaking without an entering, or an entering without a breaking, will not make burglary. 2 Russell, 50. The offence must be laid to have been committed in a mansion-house or dis^e\[m^. house, the tem^ dtvelling-house being that more usualhr adopted m modern practice. It will not be sufficient to say ^house.^2 Russell, 46 ; 1 Hale, 550. It has been said that the indictment need not state whose goods were intended to be stolen, or were stolen—Reg. vs. Clarke, 1 C. & K. 421 ; Reg. vs. Nicholas, 1 Cox, 218 ; Reg. vs Lawes, 1 C. & K. 62 ; nor to specify which goods, if an attempt or an intent to steal only is charged.— Reg. vs Johnson, Leigh & Cave, 489. It is better to state at what hour of the night the acts complained of took place, though it is not necessary that the evmence should correspond with the allegation as to the exact hour ; it will be sufficient if it shows the acts to have been committed in the night, as this word is inter- preted by the Statute. However, in Reg. vs. Thompson, 2 Cox, 377, It was held thatthe hour need not be speci- hed, and that it will be sufficient if the indictment alleg- es m^/,, night^Bhhoii, 2 Crim. Proced. 131, is also of this opinion. The particular felony intend ^< ! must be specified in the indictment.— Bishop, 2 Crim. Proced. 142. Indictment under sect. 50. for huralaru h» h^.^h;^^ ^,.f LARCENY ACT. 511 — The Jurors for our Lidy the Queen upon their oath present, that J. S. on about the hour of eleven in the night of the same day, being in the dwelling-house of K. O. situate .... one silver sugar-basin of the value of three pounds, six silver table-spoons of the value of three pounds, and twelve silver tea-spoons of the value of two pounds, of the goods and chattels of the said K. O. in the said dwelling-house of the said K. O., then being in the said dwelling-house, feloniously did steal, take and carry away ; and that he, the said J. S. being so as aforesaid in the said dwelling-house, and having com- mitted the felony aforesaid, in manner and form aforesaid, afterwards, to wit, on the same day and year aforesaid, about the hour of eleven in the night of the same day, feloniously and burglariously did break out of the said dwelling-house of the said K. O. ; against the form of the statute in such case,made and provided, and against the peace of our lady the Queen, her crown and dignity. — Archbold, 500. An indictment alleging " did break to get out " or •^^ did break and get out " is bad : the words of the Statute are " break out " R. vs. Compton, 7. C. & P. 139. — See ante, R. vs. Lawrence, 4 C. ife P. 231 ; R. vs. Wheeldon, 8 C. & P. 747, and remarks on burglary. — If it be doubtful whether a felony can be proved, but there be sufficient evidence of an intent to commit a felony, a count may be added stating the intent. To prove this count, the prosecutor must prove the entry, the intent as in other cases, and the breaking out. — Archbold, 601. Upon the trial of any offence hereinbefore mentioned, the jury may convict of an attempt to commit such offence, if the evidence warrants it, "under sect. 49, of the Procedure Act of 1809, 512 THE CRIMINAL STATUTE LAW. WHAT BUILDING WITHIN CURTILAGE ARE DEEMED PART OF DWELLING-HOUSE. Sect 52.— No building, although within the same curtilage with any dwelling-house, and occupied there- with, shall be deemed to be part of such dwelling house for any of the purposes of this Act, unless there shall be a communication between such building and dwelling- house, either immediate or by means of a covered and enclosed passage leading from the one to the other. — 24- 25 Vict., ch. 96, sect. 53, Imp. See remarks on Burglary, and under sect. ^4: post. Where the burglary is in an outhouse, falling within this clause, it must still be laid to have been done in the dwelHng-house. — 2 East, P. C. 512 ; R. vs. Garland ; 2 East, P. C. 493. 'Curtilage" is a court-yard, enclosure or piece of land near and belonging to a dwelling-house. TomL law diet. ill ENTERING A DWELLING-HOUSE IN THE NIGHT WITH INTENT, ETC., ETC. Sect. 53. — Whosoever enters any dwelling-house in the night, with intent to commit any felony therein, is guilty of felony, and shall be liable to be imprisoned in the Peni- tentiary for any term not exceeding fieven years and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement. — 24-25 Vict. ch. 96, sect. 54, Imp. As to recognizances and sureties in felonies under this Act, see post, sect. 122. As to solitary confinement, see sect. 94, of the Procedure Act of 1869. Greaves says : " This clause is new, and containsa very great improvement of the law. It frequently happened LARCENY ACT. 515 on the trial of an indictment for burglary where no pro- perty had been stolen that the prisoner escaped altogether for want of sufficient proof of the house having been broken into, though there was no moral doubt that it had been so. This clause will meet all such cases. It will also meet all cases where any door or window has been left open, and the prisoner has entered by it in the night. It is clear that if, on the trial of an indictment for burglary with intent to commit a felony, the proof of a breaking should fail, the prisoner might neverthe- less be convicted of the offence created by this clause for such an indictment contains everything that is required to constitute an offence under this clause, in addition to the allegation of the breaking, and the prisoner may be acquitted of the breaking and convicted of the entering with intent to commit felony, in the same way as on an indictment for burglary and stealing, he may be acquitted of the breaking, and convicted of the stealing. And this affords an additional reason why in an indictment for burglary and committing a felony, there should always be introduced an averment of an intent to commit a felony, so that if the proof of the commission of the felony and of the breaking fail, the prisoner may nevertheless be convicted of entering by night with intent to commit it." Indictment.— That J. S. on about the hour of eleven in the night of that same day, the dweUing of K. O. situate feloniously did enter, with intent the goods and chattels of the said K. O. in the said dwelling-house then being, feloniously to steal, take and carry away, against the form Archbold, 489. As to what is night, and what is a dwelling-house, iu the interpretation of this clause, the same rules as for burglarv must be followed. Under sect. 49 of the Pro- 514 THE CRIMINAL STATUTE LAW, cedure Act of 1869, the jury may, if the evidence warrants it, convict of an attempt to commit the offence -charged, upon an indictment under this section. BREAKING, ETC., ETC, ETC., A BUILDING WITHIN THE CUR- TILAGE, NOT FORMING PART OF THE HOUSE, AND COMMIT- TING ANY FELONY THEREIN. Sect. 54.— Whosoever breaks and enters any building and commits any felony therein, such building being within the curtilage of a dwelling-house and occupied therewith, but not being part thereof, according to the provision hereinbefore mentioned, or being in any such building, commits any felony therein and breaks out of the same, is guilty of felony, and shall be liable to be imprisoiicl in the Penitentiary for any term not exceeding fourteen years and not less than two years, or to be imprisoned in any other gaol or place of confine- ment for any term less than two years, with or without hard labour and with or without solitary confinement —24-25 Vict., ch. 9G, sect. 55 Imp. As to recognizances and sureties, in felonies under this Act, »eepost, sect. 122— As to solitary confinement, see sect. 94 of the Procedure Act of 1869. The breaking and entering must be proved in the same manner as in burglary, except that it is immaterial whether it was done in the day or night. If this proof fiiil, the defendant may be convicted of simple lar- ceny. The building described in the Statute is " any building within the curtilage of a dwelling-house, and occupied therewith, not being part of the dwelHng-house, accord- ing to the provision hereinbefore mentioned" that is, not communicating with the dwelling-house, either immediately or by means of a covered and enclosed pas- LARCENY ACT. 615 sage leading from the one to the other." — Sect. 52, ante. To break and enter such a building was, before the pre- sent Statute, burglary, or house-breaking, and^ although this enactment, which expressly defines the building meant thereby to be a building within the curtilage, appears to exclude many of those buildings which were formerly deemed parcel of the dwelling-house, from their adjoining to the dwelling-house, and being occupied therewith, although not within any common enclosure or curtilage, yet some of the cases decided upon these subjects may afford some guide to the construction of the present section. — Where the defendant broke into a goose- house, which opened into the prosecutor's yard, into which yard the prosecutor's house also opened, and the yard was surrounded, partly by other buildings of the homestead, and partly by a wall in which there was a gate leading to the road, and some of the buildings had doors opening into the lane, as well as into the yard, the goose-house was holden to be part of the dwelling-house. — R. vs. Clayburn, R. & R. 360. — Where the prosecutor's house was at the corner of the street, afid adjoining there- to was a workshop, beyond which a coach-house and stable adjoined, all of which were used with the house, and had doors opening into a yard belonging to the house, which yard was surrounded by adjoining buildings, and was altogether enclosed, but the shop had no internal communication with the house, had a door openirg into the street, and its roof was higher than that of the house, ihe workshop was holden to be a parcel of the dwelling- house. — R. vs. Chalking, R. & R. 334. — So, a warehouse which had a separate entrance from the street, and had no internal communication with the dwelling-house, with which it was occupied, but was under the same roof, and had a back door opening into the yard, into which the HH 516 THE CRIMINAL STATUTE LAW. Hi house also opened and which enclosed both, was holden to be part of the dwelling-house .—R. vs. Lithgo,R. & R, 357. — So, where in one range of buildings the prosecu- tor had a warehouse and two dwelling-houses, formerly one house, all of which had entrances into the street, but had also doors opening into an enclosed yard belonging to the prosecutor; and the prosecutor let one of the houses between his house and the warehouse together with certain easements in the yard, it was holden that the warehouse was parcel of the dwelHng-house of the prosecutor ; it was so before the division of the house, and remained so afterwards.— R. vs. Walters, 1 Mood. 13. And where the dwelling-house of the prosecutor was in the centre of a space of about an acre of land, sur- rounded by a garden wall, the front wall of a factory, and the wall of the stable-yard, the whole being the pro- perty of the prosecutor, who used the factory, partly for his own business and partly in a business in which he had a partner, and the factory opened into an open passage, into which the outer door of the dwelling-house also- opened, it was hofden that the factory was properly described as the dwelling-house of the prosecutor.— R. vs. Hancock, R. & R. 170.— But a building r?eparated from the dwelling-house by a public thoroughfare cannot be deemed to be part of the dwelling-house.— R. vs. Wefttwood, R- & R. 495.— So neither is a wall, gate or other fence, being part of +he outward fence of the curti- lage, and opening into no building but into the yard only, part of the dweUing-house.- R. vs. Bennett, R. & •£1 289. — Nor is the gate of an area, which opens into the- area only, if there be a door or fastening to prevent per- sons from passing from the area into the house, although that door or other fastening may not be secured at that time. — R. vs. Davis, R. & R- 322. L ARGENT ACT 517 Where the building broken into was in the fold-yard of the prosecutor's farm, to get to which from the house it was necessary to pass through another yard called the pump-yard, into which the back door of the house opened, the pump-yard being divided from the fold-yard by a wall four feet high, in which there was a gate, and the fold-yard being bounded on all sides by the farm buildings, a wall from the house, a hedge and gates, it was held that the building was within the curtilage — R, vs. Gilbert, 1 C. & K. 84 ; See R. vs. Egginton, 2 Leach, 913 ; Archbold, 405. Indictment. — a certain building of one J. N. situate feloniously did break and enter, the said building then being within the curtilage of the dwelling- house of the said J. N. there situate, and by the said J. N. then and there occupied therewith, and there being then and there no communication between the said building and the said dwelling-house, either immediate or by means of any covered and enclosed passage leading from the one to the other, with intent the goods and chattels of the said J. N., in the said building then being, feloniously to steal, take and carry away, and that the said J. S. then and there, in the said building, one silver watch, of the goods and chattels of the said J. N. felo- niously did steal, take and carry away, against the form This count may be added to an indictment for burglary, housebreaking or stealing in a dwelling-house to the amount] of five pounds, and should be added, whenever it is doubtful whether the building is in strict- ness a dwelling-house. If the evidence fail to prove the actual stealing, but the breaking, entry and intent to, steal be proved, the prisoner may be convicted, under this indictment, of the felony described in sect. 56, post, , 518 THE CRIMINAL STATUTE LAW. as this indictment alleges the intent as well as the act. — Arclibold, 404. Under socr, 49 of the Procedure Act of 18G9, a ver- dict of guilty of an attempt to commit the offence charged may be given upon an indictment on this sec- tion, if the evidence warrants it. HOUSEBREAKING AND COMMITTING ANY FELONY INTO ANY HOUhE, EIC, ETC., ETC. Sect. 6-5. Whosoever breaks and enters any dwelling- house, school-house, shop, warehousa or counting-liouse, and commits any felony therein and breaks out of the same, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding fourteen years and not less than two years or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement. — 24-25 Vict., ch. 96, s. 66, Imp. See post, Sect. 122, as to recognizances and sureties in felonies under this act ; and sect. 94 of the Procedure Act of 1869 as to solitary confinement. The breaking and entering must be proved in the same manner as in burglary, except that it need not be proved to have been done in the night-time. But if it be proved to have been done in the night-tune, so as to amount to burglary, the defendant may, notwithstanding, be con- victed upon this indictment. — R. vs. Pearce, R. & R. 174; R. vs Robinson, R. & R. 321 ; Archbold, 399.— And so, also, any breaking ,ind entering, which would be sufficient in a case of burglary, would be sufficient under this section. Thus, where the prisoner burst open an inner door in the inside of a house, and so entered a shop, i n order to steal money from the till, it was held that I LARCENY ACT. 519 this was a sufTicient breaking to support an indictment for housebreaking — Reg. vs. Wenmouth, 8 Cox, 348. — The value of the goods is immaterial, if a breaking and entry be proved : but if proved and alleged to be of the value of twenty-five dollars, the prisoner may be con- victed of the felony described in sect. (jl,2wst: if the prosecutor succeed in proving the larceny, but fail in proving any of the other aggravating circumstances, the defendant may be convicted of simple larceny. — Archbold, 399. The same n ccuracy in the statement of the owner- ship* .and situation of the dwelling-houac is necessary in an indictment for this offence as in burglary. But it must be remembered that any error in these matters may now be amended, under the Procedure Act of 1869. — 2 Russell, 70. Sect. 52, ante, applies to this clause, as well as the rules which govern the interpretation of the words (JwelUng-housc in burglary. — 2 Russell, 7G. As in simple larceny, the least removal of the goods from the place where the thief found them, though they are not carried out of the house, is sufficient upon an indict- ment for house-breaking. It appeared that the prisoner, after having broken into the house, took two half-sover- eigns out of a bureau in one of the rooms, but being detected, he threw them under the grate in that room ; it was held that if they were tal en with a felonious intent, this was a sufficient removal of them to consti- tute the offence. — R. vs. Amier, 6 C. & P. 344. A^ to what is a shop under this section, it was once said that it must be a shop for the sale of goods, and that a mere workshop wns not within the clause. — Reg. vs. Sanders, 9 C. «& P. 79 ; but in Reg. vs. Carter, 1 C. & K. 173, Lord Denman, C. J., declined to be governed by the preceding case, and held that a blacksmith's shop, used as 620 THl CRIMINAL STATUTK LAW. a workshop only, was within the Statute. A warehouse means a place where a man stores or keeps his goods, which are not immediately wanted for sale. — Reg. vs. Hill, 2 Russell, 95. — Upon an indictment for breaking and entering a counting-house, owned by Gamble, ancl stealing therein, it appeared that Gamble was the pro prietor of extensive chemical works, and that the pris- oner broke and entered a building, part of the premises, which was commonly called the machine-house, and stole therein a largo quantity of money. In this building, there was a weighing machine, at which all goods sent out were weighed, and one of Gamble's servants kept in that building a book, in which he entered all goods weighed and sent out. The account of the time of the men employed in different departments was taken in ' that building and their wages were paid there | the books in which their time was entered were brought to that building for the purpose of making the entries and pay- ing the wages. At other times, they were kept in ano- ther building called the office, where the general books and accounts of the concern were kept. It was objected that this was not a counting-house ; but, upon a case reserved, the judges held that it was a counting-house within the Statute. — Reg. vs. Potter, 2 Den. 235. An indictment for house-breaking is good, if it alleges that the prisoner broke and entered the dwelling-house, and the goods of in the said dwelling-house then and there being found, then and there (omitting " in the said dwelling-house") feloniously did steal, take and carry away. — Reg. vs. Andrews, C. & M. 121, overrul- ing Reg. vs. Smith, 2 M. & Rob. 115, which Coleridge, J., said Patteson, J., was himself since satisfied had been wrongly decided. — 2 Russell, 76, note by Greaves Indictment. — on. . . .the dwelling-house of J. N., situ- LARCENY ACT. 521 ^te feloniously did break and enter, with intent the goods and chattels of the said J. N., in the said dwelling- house then being, feloniously to steal, take and carry away, and one dressing-case of the value of twenty-five dollars, of the goods and chattels of the said J. N., then in the soid dwelling-house, then feloniously did steal, take and carry away, against the form Archbold, 398. Upon the trial of an indictment for an offence under this section the jury may, under sect. 49 of the Proce- clure Act of 1869, convict the defendant of an attempt to commit the same, if the evidence warrants it. But they can only convict of the attempt to commit the identical offence charged in the indictment : the prisoner was indicted for breaking and entering a dwelling-house, and stealing therein certain goods specified in the indictment, the property of the prosecutor. It waa proved at the trial that, at the time of the breaking, the goods specified were not in the house but there were other goods there, the property of the prosecutor ; the prisoner had not had time to steal anything, having been caught immediately ■after his entering the house. The jury acquitted the prisoner of the felony charged, but found him guilty of breaking and entering the dwelling house of the prosecu- tor, and attempting to steal his goods therein. Held that the conviction was wrong, and that an attempt must be to do that which, if successful, would amount to the felony charged.— Reg. vs. McPherson, Dears. & B. 197. Bishop, 1 Cr. Law, 757, does not approve of this decision. As said in Archbold, 399, the prisoner, under such circumstances, may be convicted of breaking and entering with intent to commit a felony, under sect 66, ; post. But only if, as in the form above given, the intent is alleged, which was . ' the case in Reg. vs. McPher- json, nhi supra. 1 ■'Is .as 522 THE CRIMINAL STATUTE LAW. A second count to an indictment under sect. 55 may be taken on the form of indictment given, ante, under sect. 54. HOUSE-BREAKING WITH INTENT TO COMMIT A FELONY. Sect. 56. — Whosoever breaks and enters any dwelling- house, church, chapel, meeting-house, or other place of divine worship, or any building within the curtilage, school-house, shop, warehouse, or counting-house, with intent to commit any felony therein, is guilty of felony, and shall It liable to be imprisoned in the Penitentiary for any tenn not exceeding seven years nor less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary con- finement.— 24-25 Vict., ch. 96, sect. 57, Imp. As to recognizances and sureties in felonies under this Act, ^eeposty sect. 122. — As to sjlitary confinement, see sect. 94 of the Procedure Act of 1869. Indictment. — on the dwelling-house of J. N., situate feloniously did break and enter, with intent to commit a felony therein, to wit, the goods and chattels of the said J. N. in the said dwelling-house then being, then feloniously to steal, take and carry away, against the form of the Statute in such case made and provided. — Archbold, 403. Where there is only an attempt, it is not always pos- sible to say what goods the would-be thief meant to steal, and an indictment for an attempt to commit larceny need not specify the goods intended to be stolen. — Reg. vs. Johnson, L. & C. 4S9. Upon an indictment under this section the prisoner maybe convicted, under sect. 49 of the Procedure Act of 1869, of the misdemeanor of attempting to commit the LARCENY ACT. 523 felony charged. — Reg. vs. Bain, L. & C. 129, and repor- ter's note, 2 RusseU, 97. Greaves says : " This clause isnew, .nd contains a very important improvement in the ]bw. Formely the of- fence here provided was only a misdemeanor at common law. Now, it often happened that such an offence was very inadequately punished as a misdemeanor, especially since the night was made to commence at nine in the evening ; for at that time, in the winter, in rural districts, the poor were often in bed. Nor could anythir -^ be much more unreasonable than that the same acts dc just after nine o'clock at night should be Hable to penal servitude for life, but if done just before nine they should only be punish- able as a misdemeanor. It is clear that if, on the trial of an indictment for burglary, with intent to commit afelony, it should appear that the breaking and entry were before nine o'clock, the prisoner might be convicted under this clause. But upon an indictment in the ordinary form for house breaking, the prisoner could not be convicted under this clause, because it does not allege an intent to com- mit a felony ; (as in McPherson's case, ante, under last preceding section.) It will be well, however, to alter the form of ^liese indictments, and to allege a breaking and entry with intent to commit some felony, in the same manner as in an indictment for burglary with intent to commit felon}/, and then to allege the felony that is sup- posed to have been committed in the house. If this be done, then, if the evidence fail to prove the commission of that felony, but prove that the prisoner broke and entered with intent to commit it, he may be convicted under this clause."— The form of indictment given under the last preceding section is in conformity with these remarks. f iBttm fl P 2 '^B^ tgem ■ft •^ IP? 524 THE CRIMINAL STATUTE LAW. See the following sections, 57 and 58, which refer to this one. IVHEN BURGLARY JfOT CLEARLY PROVEN, CONVICTION M4Y BE UNDER SECT. 56. Sect. 57. — Whosoever is indicted for any burglary, where the breaking and entering are proved at the trial to have been made in the day-time and no breaking-out appears to have been made in the night-time, or where it is left doubtful whether such breaking and entering or breaking out took place in the day or night-time, shall be acquitted of the burglary, but raay be convicted of the offence specified in the next preceding section. This clause is not in the English Act, as remarked ante, under sect. 51. it applies to cases of burglary where an intent only to commit a felony is charged. — It will be seen by Greaves' remarks under the last section, that he is of opinion that even without this enact- ment, such a verdict could be given, upon such an indict- ment for burglary. IP, UPON INDICTMENT UNDER SECT. 56, fiURGLARY IS PROVED. Sect. 58. — It shall not be available by way of defence to a person charged with the offence specified in the next preceding section but one to show that the breaking and entering were such as to amount in law to burglary, provided that the offender shall not be afterwards prose- cuted for burglary upon the same facts, but it shall be open to the Court before whom the trial for such offence takes place, upon the application of the person conduct- ing the prosecution, to allow an acquittal on the ground that the offence, as proved, amounts to burglary, and if an acquittal takes place on such ground, and is so returned by the jury in delivering their verdict, the same shall be LARCENY /.CT. 525 recorded together with the verdict ; and such acquittal shall not then avail as a bar or defence upon an indict- ment for such burglary. This clause is not in the English Act — it seems a 8 uperfluous enactment. As the law stands, in cases of doubt, the prosecution would indict for burglary. BEING FOUND BY NIGHT ARMED WITH INTENT TO BREAK A DWELLING-HOUSE, ETC., ETC., ETC., OR HAVING IN POSSES- SION, BY NIGHT IMPLEMENTS OF HOUSE-BREAKING. Sect. 59. — Whosoever is found by night armed with any dangerous or offensive weapon or instrument what- soever, with intent to break or enter into any dwelling- house or other building whatsoever, and to commit any felony therein, or is found by night having in his posses- sion without lawful excuse (the proof of which excuse shall lie on such person) any pick-lock key, crow, jack, bit, or other implement of house-breaking, or any match, or combustible or explosive substance ; or is found by night having his face blackened or otherwise disguised, with intent to commit any felony ; or is found by night in any dwelling-house or other building whatsoever, with intent to commit any felony therein, is guilty of a mis- demeanor, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding three years and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years with or without hard labour. — 24-25 Vict., ch. 96, sect. 58, Imp. As to fining the offender, and requiring him to enter into recognizances and find sureties for keeping the peace, in misdemeanors under this Act, se3post., sect. 122. The distinction betweer^ this clause and sect. 53, as far as relates to being in a dwelling-house with intent to S26 THE CRIMINAL STATUTE LAW. commit a felony, is this, that, under sect. 53, the entry must be proved to have been in the night, but under this clause, proof that the prisoner was in the dwelling-house by night with the intent to commit felony is enough, and it is unnecessary to prove whether he entered by day or by night.— Greaves, Cons. Acts 150. Indictment for being found by night armed, tvith intent, etc., etc., dc— The jurors for Our Lady the Queen upon their oath present, that J. S. on about the hour of eleven in the night of the same day, at was found unlawfully armed with a certain dangerous and offensive instrument, that is to say, a crow-bar, with intent then to break and enter into a certain dwelhng-house of A. B there situate, and the goods and chattels in the said dwelling-house then being, feloniously to steal, take and carry away, against the form of the Statute in such case made and provided, and against the peace of Our Lady the Queen, her crown and dignity.— Archbold, 5C1. It is not necessary to aver that the goods and chattels were the property of any particular person.— R. vs. Lawes, 1 C. & K. 62 ; Reg. vs. Nicholas, 1 Cox, 21S; Reg. vs. Clarke, 1 C. & K. 42L See ante, sect. 1, as to the interpretation of the word " night." In Reg. vs. Tarrald, L. & C. 301, it was held, upon a case reserved, that an indictment under this section, for being found by night armed with a dangerous and offen- sive weapon and instrument with intent to break and enter into a building, and commit a felony therein, must specify, as in burglary, tlie building to be broken into. Crompton, J., was of opinion that the particular felony intended must also be specified. On this case, Greaves, 2 Russell, 70, note g., says : " With all deference it is submitted that this decision is LARCENY ACT. 527 clearly erroneous. The ground on whi^^h Cookburn, C. J. rests the decision of" the first point (as to a particular house to be specified) is answered by the second clause of the same section ; for, under it, the- mere possession without lawful excuse, of any instrument of house-break- ing in the night, constitutes the offence without any in- tent to commit any felony at all ; (See post, as to this part of the clause) and this offence is plainly one step further from the attempt to commit a felony than where the in- tent to commit some felony exists, though the particular felony is not yet fixed As to the rules of criminal pleading, these seem, in this case, to have been miscon- ceived. It is quite a mistake to suppose that these rules require the specification of particulars where it is imprac- ticable to specify them. Wherever this is the case the rules allow general or other statements instead It cannot be doubted that this decision, instead of promoting tht object of the Act in tnis respect, is substantially a repeal of it, for it is hardly conceivable that, in the majo- rity of cases, it will be possible to prove an inteut to commit any particular felony " To ihis. Cave answers, (3 Burn's just. S-'iS, note a) : ^' But a close consideration of the Statute appears to confirm it : (the decision in Tarrald's case) it may well be that ia all the other cases except " having implements of housebreaking " an intent must be clearly proved ; for the " being armed with a dangerous weapon " or ^' having the face blacked " or " being by night in a dwelling-house " are clearly no offences unless done for a felonious purpose, and the very essence of the oilence is such feloni^'is purpose. But, with regard to '^ having instruraencs W house-breaking " the Statute implies the intent from tiie nature of the instrument, and throws the proof of innocence upon the prisoner. The general m 628 THE CRIMINAL STATUTE LAW i'^ intention of the Statute is thus well carried out ; for if a man be found by night anywhere with house-breaking implements, or such as the jury shall think he intended to use as such, lie may be indicted for that offence. — Reg. vs. Oldham, 2 Den. 472, post, but if lie has not any house-breaking implements : but is " armed with a dan- gerous weapon " not usable for house-breaking, or has- " his face blacked " or is "in a dwelling-house " without instruments of house-breaking, then the particular intent must be laid and proved as laid." Indictment for having in possession, hy night, implements of house •hreaking .... on ... . about the hour of eleven jii i,he night of the same day, at was found, he the said {defendant) then and there, by night as aforesaid, unlawfully having in his possession, without lawful excuse, ctiiain implements of house-breaking, that is to- say, two crows, three jacks and one bit, against the form .... Archbold, 602. Any instrument, capable of being used for lawful pur- poses, is within the Statute, if the jury find that such instrument may also be used for the purposes of house- breaking, and that the prisoner intended to use it as an implement of house-breaking, when found, at night, in possession of it. — Reg. vs. Oldham, 2 Den. 472. It would have been better, in our Statute, to meet a doubt raised by Maule, and Cresswell, J.J., in this last case, to put a comma between pick-lock and key. What is a picklock-key ? — What have the translators done with the word key in the French version of the Statute ? Where, on an indictment for having in possession without lawful excuse certain implements of house- breaking the jury found the prisoners guilty of the possession without lawful excuse, but that there was no evidence of an intent to comm't a felony, and the indict- LARCENY ACT. 523^ ment omitted the words " with intent to commit a felony," it was held that the omission did not render the indictment bad, and that it was not necessary to prove an intent to commit a felony. Reg. vs. Bailey, Dears. 244. OFFENCE UNDER SECT. 59, AFTER A PREVIOUS CONVIC- TION. Sect. 60. — Whosoever is convicted of any such mis- demeanor as in the last preceding section mentioned committed after a previous conviction, either for felony or such misdemeanor shall, on such subsequent conviction be liable to be imprisoned in the Penitentiary for any term not exceeding ten years and not less than two years, or to be imprisoned in any other gaol or place of confine- ment for any term less than two years, with or without hard labour. — 24-25 Vict., ch. 96, s. 59, Imp. See Procedure Act of 1869, sect. 26, as to indictments for a subsequent offence. STEALING IN A DWELLING-HOUSE TO THE VALUE OF $25. Sect. 61. — Whosoever steals in any dwelling-house any chattel, money or valuable secunty to the value, in the whole, of twenty-five dollars or (Wore, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding fourteen years and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour and with or without solitary confinement. — 24-25 Vict., ch. 96, sect. 60, Imp. As to the meaning of the words 'Valuable security," see ante, sect. 1. As to sureties for the peace, in felonies under this Act, see post^ sect. 122. As to soli- 530 THE CRIMINAL STATUTE LAW. tary confinement, see sect. 94 of the Procedure Act of 1SG9. Indictment one silver sugar basin, of the vahie of twenty-five dollars of the goods and chattels of A. 13., in the dw^elling-house of the said A. B., situate . feloniously did steal, take and carry away, against the form .... Archbold, 401. If no larceny is proved the defendant must of course be acquitted altogether, except if the jury should find him guilty of the attem]>t to commit the oflence charged, under sect. 49 of the Procedure Act of 18G9 ; but the jury could not find him guilty of an attempt to commit simple larceny.— Reg. vs. McPherson, Dears. & B. 197, see supra, under sect. 5-5. The word " dwelling-house" has the same meaning as in burglary and sect. 52. ante. If the proof fails to prove the larceny to have been committed in a dwelling-house or in the dwelling-house described, or that the value of the things stolen at any one time amounts to twenty-five dollars, the defendant must be acquitted of the compound oflence, and may be found guilty of the simple larceny only. — Archbold ,402. The goods nmst be stolen to the amount of twenty-five ^ ^1 iV N> '<6 y . «^ o^ .^ 'V 534 THE OlttMlN^I' STATUTE LAW. stealing in the . dwelling'-house.— Reg. vs. Leonard^ Cheshire Special Gom. 1842 ; 2 Russell, 78. But Greaves adds : "It is submitted with all deference that this decision is erroneous| the law looks on an act done under the compulsion of terror as the act of the person causing that terror just as much as if he had done it actually with his own hands^- Any asportation, there- fore, of a chattel under the effects of terror is iff contem.. plation of law the asportation of the party causing the terror."— *Noteg, 2 Russell, loc.cit. If so, in Leonard's- case, suppose the prisoner had been taken up by the police just before the prosecutor gave him theprovisions, and as he, the prosecutor j \)eas coming with them towards the prisoner; under .the Influence of terror,: the offence would have been larceny, aci.'ordiiag to Greaves, as the asportation by the prosecutor was inlaw the asportation of the prisoner ; this would be going far. It does not appear to have been expressly decided by the Repealed Statute whether or not it was necessary to prove the actual sensation of fear felt by some person in the house, or whether fear was to be implied, if some person in the hoTise were conscious-of the fact at the time of the robbery. But it was suggested as the better- opinion, and was said to have been tne: practice, that .proof should be given of an actual fear excited by the fact, when committed-out of the presence of the party, 80 as not to amount to a robbery at. common Jaw. And it was observed that where the fact was committed in the presence of the party, possibly it would depend upon the particular circumstances of the transaction, whether fear WH)uld or would not be implied ; but that clearly, if it should appear that the party in whose presence the property was taKen was not conscious of the fu.t at the time, the case was not within that Statute. But, now. -^ t AftOlNY ACT. 535 l»y the express words of the Statute, the putting in fear must have been by An afctual mehaceor threat.— 2 Rus-^ sell, 79; Archbold, 401. A person outside a house may be a principal iu the second degree to menaces used in the house: menaces used out of the house inay be taken into consideration with menaces used in the house— Reg. vs. Mumhv € Cox, 340. ; ° , ^ J;^ Upon the trial of any offence mentioned ill this isection the jury may, under sect. 49 of the Procedure Act of 1869, convict of an attempt to commit such offence —2 Russell, 81. ' ■•■::■■ ^ Jn«men?j^.....: one silver basin (of the value of twenty-fkre Mlars) of the goods dnd chattels of J 'N 'In the dwellirig-house of th6 "saicl j. N., situate. . . ."feioni'- ously did steal, take and carr;^ away : one A. B. then to' wit, at the time of the committing of the felony aformid bemgm the paid' dwelling-house, alhd therein by the said' - . . . . . {defendant) by a certain menace and threat then used by the said.... {defendant) then being put in^ bodily fear, against the form. . . . Archbold^-401. (As" to value,- see ttwfe.) , LARCENY IN MANUrACTORIES. Sect. :63.—Whosofiver steals to the value of two dollars any wooUea, linen, hempen or cotton yam, or any goods or articles of silk, wooUen, linen, cotton, alpaca or mohair,orof any one or more of those materials mixed with each other^ or mixed with any other material, whilst- laid, placed-or exposed, during any stage, process or pro- gress of manufacture^ in any building, field or other place, 18 guilty of felony, and shall be liable to be imprisoned m the Penitentiary for any term not exceeding fouri;een years and not less than two years, or to be imprisoned In { ■'A ^^IK i"' '.\Vn| t i; ' Wi \i 536 THE CRIMINAL STATUTE LAW. any other gaol or place of confinement for any term less; than two years, with or without hard labour, a^id with or without solitary confinement. — 24-25 Vict, ch. 36,, sect. 62, Imp. ' As to sureties for the peace, in felonies under thiia Act,, see postf sect. 122. As to solitary confinemeni:, see seot^ 94 of the Procedure Act of 1869. If you prove the larceny, but fail to prove the other circumstances so as to bring the case within the Statute, the defendant may be found guilty of the simple larceny only. — Archbold, 407. Goods remain in " a stage, process or progress of manufacture," though the texture be complete, if they be not yet brought into a condition fit for sale. — R. vs. Woodhead, 1 M. & Rob. 549.— See R. vs. Hugill, 2 Rus- sell 517 ; R. vs. Dixon, R. & R. 53. tfpon the trial of any offence mentioned in this section, the jury may, under sect. 49 of the Procedure Act of 1869, convict the prisoner of an attempt to commit the same. — 2 Russell, 518. Indictment. — •. . . . on thirty yards of linen cloth, of the value of four dollars, of the goods and chattels of J. N., in a certain building of the said J. N., situate feloniously did steal, take and carry away, whilst the same were laid, placed and exposed in the said building, during a certain state, process and progress of manufacture, against the form of the Statute in such case made and provided. — Other counts may be added, stating the particular process and progress of manufac- ture in which the goods were when stolen. — Archbold, 407. STEALING GOODS INTRUSTED FOR MANUFACTURE. Sect 64. — Whosoever, having been intrusted for the LARc/Etjy ACT. 53'/ purpose of manufacture, or for a special purpose connected with manufacture, or employed to make any felt or hat or to prepare or work up any woollen, linen, fustian, cot- ton, iron, leather, fur, hemp, flax, cotton, silk, or any such materials mixed with one another, or having been so intrusted as aforesaid, with any other article, materials, fabric or thing, or with any tools or apparatus for manu- facturing the same, sells, pawns, purloins, secrets, -em- bezzles, exchanges, or otherwise fraudulently disposes of the same, or any part thereof, where the case does not fall within the last preceding section hereof, is guilty of a misdemeanor, and shall be liable to . be imprisoned in any gaol or place of confinement, other than a Peniten- tiary, for any term less than two years, with or without hard labour, and with or without solitary confine- ment. This clause is not in the English Act. See post, sect. 122, as to fine and sureties for the peace, in misdemeanors uhder this Act. As to solitary confinement, see sect. 94 of the Procedure Act of 1869. LARCENY IN SHIPS, WHARVES, ETC., ETQ. Sect. 65. — Whosoever steals any goods or merchandise in any vessel, barge or boat of any description whatso- ever, in any haven, or in any port of entry or discharge, or upon any navigable river or canal, or in any creek or basin belonging to or communicating with any such haven, port, river or canal, or steals any goods or mer- chandise from any dock, wharf or quay, adjacent to any such haven, port, river, canal, creek or basin, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding fourteen years and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than 63$ THE CRIMINAL STATUTE LAW. k two years, with or without hfrfd labour, and with or with- out solitary oonfinement.— 24-25 Vict., chi 96, 8ect..63, , Imp. ,.,;-•.; . :- ■ • v'.. ■;-■ ^ .: •. Ap to suretioB for the peace, ia felonies under this Act, B^epost, sect. 122. As to solitary confinement, see sect. 94 of the Procedure Act of 1869. . Indictment for, stealing from a vessel on a navigable river .> . . . *on . . . .•._. twenty pounds weight of indi^ of the goods and merchandise of J. N., then being in a certain ship called the Eattler upon the navigable river Thames, in the said ship, feloniously did steal, take and carry away, against the form. . . . Archb©ld, 408 •Indictment for stealing from a doch-r~. '... :on. . . . , . twenty pounds w^eight of indigo; of the goods and mer- chandise of J, M., then being in and upon a certain dock adjacent to a certain navigable river called the Thames, from. the said dock, feloniously did steal, take and, carry away, against the form. ^ •- Arch^old, 409. , . The value is immaterial,, and need not be laid. : If the prosecutor fails to prove any of the circumstances neces- sary to bring the case within the Statute, but proves a larceny, the defendant may be convicted of the simple larceny. — Arohbold, 409. . . , _ . • - . The construction of the Repealed Statute was generally confined to -such goods :and merchandis' as are usually lodged in ships, or on wharves or quays ; and therefore \yhere Orimes was indicted on this Statute for stealing a considerable sum of money out of a ship in port, though great part of it consisted in Portugal money, not m£^de current by proclamation^ but commonly ^jurrentj it was ruled not to be within the Statute.— B. vs. (Grrimes, Fos- ter, 79 ; R. vs. ijeigh, 1 Leach, 52, The same may be said of the present Statute, by reason of the subfd-w : ■••■ . • By the 36 Vict., ch. 55, sects. 19 and 20, an Act res- jpecting Wreck and Salvage, provisions are made concern- ing offences in respect of wreck, which, in many cases would clash with the above sections of the Larceny Act^ but by sect. 33 of the said 86 Vict., ch. 65, it is enacted that, "Any person committing an offence against this Act, which is also an offence against some other Actj may be prosecuted, tried,^ and if convicted, punished under either Act. LARCENY BY CLERKS OR SERVANTS. Sect. 69.— Whomever being a clerk or servant, or being employed for the purpose or ia. the capacity of a clerk or servant) steals any chattel, money or valuable security belonging to or in the possession or power of. LAKCXNT ACT. &4^ his master or employer, ia guilty of felony, and shall be liable to be imprisoned in the Penil 3ntiary for any term not exceeding fourteen years, and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary con- finement. — 24-26 Vict., chk 96, sect. 67, Imp. As to sureties for the peace in felonies, under this Act, see post, sect. 12^. As to solitary confinement, see sect. 94 of the Procedure Act of 1869. As to what is a .<< valuable security/' see an/e, sect. 1. See next section, and the cases there cited. ' Indictment—*- ...... on was clerk to J. N., and that the said J. S., whilst he was such clerk to the said J. N. as aforesaid, to wit on the day and year aforesaid, certain money to the amount of ten pounds, ten yards of linen cloth, and one hbt, of and belonging to the said J. N., his masterj feloniously did steal, take and carry away, against the form of the Statute in such case made and provided, and against the peace of Gur Lady the Queen, her crown and dignity:— Archbold, 346. ' • 'i If the defendant is not shown to be the clerk or ser- vant of J. N. but a larceny is proved, he may b6 con- victed of th& larceny merely. — Ardhbold, 348; Reg. vs. -Jennings, Dears. & B. 447. It is not necessary by the Statute that the goods stolen should be the property of the master: thewords of the Statute are, belonging to, or in the possession or power of the master. A second count stating the goods ^' then being iii the possession and power"' of the master may be added. If it appear that the money, &c., &c., inc., was receiviBd by the clerk for and on account of his master, and was not received into the possession ^f the master otherwise than by the actual possession of the clerk so as not to amount to larceny- 544 THE CRIMINAL bTATUTE LAW. I but to enibezifloment, the defyntliint is nevertheless not entitled to bo acquitted, but tbc jury may return as their verdict that the defeudaut was not guilty of larceny, but was guilty of erabezirlement, and thereupon ho shall be liable to be punished in the same manner as if he hod been convicted on an indictment for embezzlement ; but he cannot be afterwards prosecuted for embezzlement on the same facts ; Beepost, sect. 74. Upon the trial of any offence under this section, the jury, if the evidence warrants it, may convict of an attempt to commit the same, under sect. 49 of the Pro- cedure Act of 1SG9. As to what is sufficient evidence of an attempt to stenl, see Keg. vs. Cheeseman, L. &. C. 140. EMBEZZy.EMENT DY CLERK8 OR SERVANTS Sect. 70. —Whosoever being a clerk or servant, or being employed for the purpose or m the capacity of a clerk or servant, fraudulently embezzles any chattel, money, or valuable security, delivered to or received, or taken into possession by him, for or in the name or on the account of his master or employer, or any part thereof, shall be deemed to have feloniously stolen the same from his master or employe)', although such chat- tel, money or security was not received into the posses- sion of such master or employer, otherwise than by the actual possession of his clerk, servant or other person so employed, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding fourteen years and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement.— 24-25 Vict., ch. 96, fiect. 68, Imp. LAUOENY ACT. 545 Sect. 73. — For preventing difficulties in the prosecu- tion of offenders in any case of enibezxlumt'ut, iVuudiilent application or disposition iiereinbefore mentioned, it sliuU bo lawful to charge in the indictment and proceed against the offender for any number of distinct acts of embezzlement, or of fraudulent application or disposition not exceeding three, which may have been connnitted by him against Her Majesty, or against the same munici- pality, master or employer within the space of six months from the first to the lust of such acts, and in every such indictment, where the offence relates to any money or any valuable security, it shall be sufficient to al- lege the embezzlement or fraudulent application or dispo- sition to be of money, without specifying any particu' '• coin or valuable security ; and such allegation, so far as regards the description of the property, shall be sustained if the offender be proved to have embezzled or fraudu- lently applied or disposed of any amount, although the particular species of coin or valuable security of which such amount was composed, is not proved, or if he is proved to have embezzled or fraudulently applied or dis- posed of any piece of coin or any valuable security, or any portion of the value thereof, although such piece of coin or valuable security has been delivered to him in order that some part of the value thereof should be returned to the party delivering the same or to some other person, and such part has been returf^.ed accord- ingly.— 24-26 Vict., ch. 9G, sect. 71, Imp. Sect. 74. — If upon the trial of any person indicted for •embezzlement or fraudulent application or disposition as aforesaid, it is proved that he took the property in ques- tion in any such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted, but the jury shall be at liberty to return as their verdict &4'6 THE CRIMINAL STATtTTB LAW. that such person is not guilty of embezzlement or frau- dulent application or disposition, but is guilty of simple larceny or larceny as a clerk, servant, or person employed for the purpose or in the capacity of a clerk or servant or as a person employed in the public service, (as the case may be) and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for such larceny, and if upon the trial of any person indicted for larceny, it is. proved tiiat he took the property in question, in any such manner as to amount in law to embezzlement or fraudulent application or disposition as aforesaid, he shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict, that such person is not guilty of larceny, but is guilty of embezzle- ment or fraudulent application or disposition, as the case may be, and thereupon such person shall be liable to be punished in the saTi'>e manner as if he had been con- victed upon an indictment for such embezzlement, frau- dulent 'application or disposition ; and no person so tried tor embezzlement, fraudulent apphoation or disposition, or larceny as aforesaid shall be liable to be afterwards prosecuted for larceny, fraudulent application or disposi- tion or embezzlement upon the same facts. — 24-25 Vict.^ ch. 96, ?ect. 72, Imp. ,i , ■ A verdict may also be given under section 110, post.-^ As to sureties for keeping the peace in felonies unrJer thisAct^ see post, &3ci. 122. — As to solitary canfinement> see sect. 94 of the Procedure Act of lS69.-*-/i3 to '■/he Cleaning of the words " vahiable security," see aiite, sect. 1, and post, sect. 110, for punishment, when value of property is over $200. ; Embeiszlement is the appropriation to his own use by a servant or 6lerk of money or chattels received by him LARCENY ACT, 547 for or on account of his master or employer. Embezzle ment differs from larceny in this, that in the former the property misappropriated is not at the time in the actual or legal possession of the owner, whilst in the latter it 18. The distinctions between larceny and embezzlement are often extremely nice and subtle; and it is sometimes difficult to say under which head the offence ranges -Wharton law lexicon, verb: embe,,kment : 4 btephen's Comment.- 130. Greaves says : "The words of the former enactments were shall hjvtrtue of such employment receive or take mto his possession any chattel, &c., &c., for, or in the name, or on the account of his master." In the present clause, the words "by virtue of such emplov- ment are advisedly omitted in order to enlar J the enactment, and get rid of the decisions on the former enactments. The clause is so framed as to include every case where any chattel, &c., &c., is delivered to, received or taken possession of by the clerk or servant, for or in the name or on account of the master. If therefore a man pay a servant money for his master, the case will be withm the Statute, though it was neither his duty to receive it, nor had he authority to do so ; and it is per- fectly just that it should be so ; for, if my servant receive a thing which is delivered to him for me, his possession ought to be held to be my possession just as much as if it were m my house or in my cart. And the effect of this clause IS to make the possession of the servant the pos- session of the master wherever any property comes into hispossession within the terms of this clause, so as to make him guilty of embezzlement, if he converts it to his own use. The cases of R. vs. Snowley, 4 C. & P 390- Crow's case, 1 Lew, 88 ; R. vs. Thorley, 1 Mood. 343 ' R. vs. Hawtin, 7 C. & P. 281 j R. vs. MeUish, R. & R E5 548 THE CRIMINAL STATUTE LAW. 80, and similar cases are consequently no authorities on this clause. It is clear that the omission of the words in question, and the change in the terms in this clause render it no longer necessary to prove that the property was received by the defendant by virtue of his employ- ment ; in other words that it is no longer necessary to prove that the defendant had authority to receive it " Greaves adds : Mr. Davis says '* still it must be the master's money which is received by the servant, and not money wrongfully received by the servant by means of false pretences or otherwise : " this is plainly incorrect. A.'s servant goes to B., who owes A. ^10, and falsely states that A. has sent him for the money, whereupon B. pays him the money. This case is clearly within the clause ; for the money is delivered to and received and taken into possession by him for and in the name and on the account of his master, so that the case comes within every one of the categories of the clause, and if it came within any one it would suffice ; in fact, no case can be put where property is delivered to a servant for his master that does not come within the clause, and it is perfectly immaterial what the moving cause of the delivery was. — Greaves, Cons. Acts, 156. In larceny a wrongful taking is essential, whilst in embezzlement the offence consists in some actual frau- dulent appropriation of that which is not unlawfully in the possession of the offender. — Cr. Law Com. 4th Rep. LV, LXXVIII. By sect. 74, ante^ it would seem that the distinction, often so difficult to establish, between larceny and embez- zlement, is no more of practical importance as if upon an indictment for embezzlement, a larceny is proved, the jury shall be at liberty to return a verdict of guilty of larceny, and vice versft= But practically, this distinction LARtlENY ACT. 649 has still to be made, as the jury must specify by their verdict, of which special offence they find the defendant guilty; and, if, for instance, upon an indictment for larceny, the jury return a general verdict of guilty, when the evidence proves an embezzlement and not a larceny the conviction wiU be illegal— Reg. vs. Gorbutt, Dears! & B. 1G6; Reg. vs. Betts, Bell, 90; Broom's Comment. 973. Indictment^The Jurors for Our Lady the Queen upon their oath present, that J. S. on being then employed as clerk to A. B., did then, and whilst he was so employed as aforesaid, receive and take into his pos- • session certain money, to a large amount, to wit, to the amount of for and in the name and on the account of the said A. B. his master, and the said money then fraudulently and feloniously did embezzle ; and so the jurors aforesaid upon their oath aforesaid do say that the said J. S. then, in the manner and form aforesaid, the said money, the property of the said A. B., his said master, from the said A. B., his said master, feloniously did steal, take and carry away, against the form If the defendant has been guilty of other acts of embezzlement within the period of six months against the same master, the same, not exceeding three in number, may be charged in the same indictment in separate counts, (sect. 73, ante) as follows: And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. S. afterwards, and within six calendar months from the time of the commit- ting of the said offence in the first count of this indict- ment charged and stated, to wi*, on in the year afore- said, being then employed as clerk to the said A. B., did . ,,.«io«/ lie vvdo oo ciiipiOjcu iiB iaisi; uioresaiOj 1^ . 550 THE OEIMINAL STATUTE LAW. receive and take into his possession certain other money to a large amount, to wit, to the amount of for and in the name and on the account of the said A. B., his said master, and the said last mentioned money then, and within the said six calendar months, fraudulently and feloniously did embezzle ; and so the jurors aforesaid upon theii' oath aforesaid do say, that the said J. S. then, in manner and form aforesaid, the said money, the property of the said A. B., his said master, from the said A. B., his said master, feloniously did steal, take and carry away, against the form And so on, for a third count, if required. — Archbold, 444. The indictment must show by express words that the diiferent sums were embezzled within the six months. — R. vs. Noake, 2 C. & K. 620 ^,. vs. Purchase, C. & Mar. 617. — It was the duty of the defendant an agent and collector of a coal club, to receive payment, by small weekly instalments, and to send in weekly accounts on Tuesdays, and on each Tuesday to pay the gross amount received into the bank to the credit of the club : the defendant was a shareholder and co-partner in the society, and indicted as such; the indictment charg- ed him with three different acts of embezzlement dur- ing six months: each amount as charged was proved by the different payments of smaller sums, making alto- gether each amount charged : held, that the indictment might properly charge the embezzlement of a gross sum and be proved by evidence of smaller sums received at different times by the prisoner, and that it was not ne- cessary to charge the embezzlement of each particular sum composing the gross sum, and that, although the evidence might show a Jarge number of small sums embezzled, the prosecution was not to be confined to the proof of three of such small sums only. Reg. vs. Balls, LARCENY ACT. 551 12 Cox, 96.— R. v8.Furneaux,R. & R. 326, R. vs. Flower, 8 D. & R. 512, R. vs. Tyers, R. & R. 402, holding it neces- sary in all cases of embezzlement to state specifically in the indictment some article embezzled, are not now law as now, by sect. 73, ante, it is sufficient to allege the em- bezzlement to be of money, without specifying any par- ticular coin or valuable security, except where the offence relates to a chattel, which must be described as in an indictment for larceny. In case the indictment alleges the embezzlement of money, such allegation, so far as regards the description of th^ property, is sustained by proof that the offender embezzled any amount, although the parti- cular species of coin or valuable security of which such amount was composed shall not be proved: or by proof that he embezzled any piece of coin or any valuable security, or any portion of the value thereof, although such piece of coin or valuable security may have been delivered to him in order that some part of the value thereof should be returned to the party dehvering the same, or to some other person, and such part shall have been returned accordingly ; sect. 73, ante ; but an indict- ment for embezzling money is not proved by showing merely that the prisoner embezzled a cheque without evidence that the cheque had been converted into money. —Reg. vs. Keena, 11 Cox, 123.— The indictment must allege the goods embezzled to be the property of the master. Rex. vs. McGregor, 3 Bos. & P. 106, R. & R. 23 ; R. vs. Beacall, 1 Mood. 15, and it has been said that it must show that the defendant was servant at the time. R. vs. Somerton, 7 B. & C. 463. See, however, R. vs. Lovell, 2 M. & Rob. 236.— It is usual and prudent to state that the defendant feloniously did embezzle, but it is not absolutely nec.\ vy, if the conclusion state that he feloniously stole.— R. vs. Orighton, R. & R. 62,— It is not 552 THE CRIMINAL STATUTE LAW. necessary to state from whom the money was received. — R. vs. Beacall, 1 C. & P. 454 j and note in R. vs. Crighton, R. & R. 62. But the judge may order a particular of the charge to be furnished to the prisoner. — R. vs. Bootyman, 5 C. & P. 300 ; R. vs. Hodgson, 3 C. & P. 422 ; Arch- bold, 445. A female servant is within the meaning of the Act, R. vs. Smith, R. & R. 267 ; so is an apprentice though under age, R. vs. Mellish, R. & R. 80 ; and any clerk or servant, whether to person in trade or otherwise. — R. vs. Squire, K. & R. 349 ; R. vs. Townsend, 1 Den. 167 j R. vs. Adey, 1 Den. 571. — A clerk of a savings-bank, though elected by the managers, was held to be properly described as clerk to the trustees. — R. vs. Jenson, 1 Mood. 434. The mode by which the defendant is remu- nerated for his services is immaterial, and now, if he has a share or is a co-partner in the society whose monies or chattels he embezzled, lie may be indicted as if he was not such shareholder or co-partner j sect. 38, ante. — R. vs. Hartley, R. & R. 139; R. vs. Macdonald, L. & C. 85 ; Reg. vs. Balls, 12 Cox, 96. — So, where the defendant was employed as a traveller to take orders and collect money, was paid by a percentage upon the orders he got, paid his own expenses, did not live with the prosecutors, and was employed as a traveller by other persons also, he was holden to be a clerk of the prosecutors within the mean- ing of the Act. — R. vs. Carr, R. & R. 198 ; R. vs. Hoggins, R. & R. }45; R. vs. Tite, L. & C. 29 ; 8 Cox, 468.— Where the prisoner was employed by the prosecutors as their agent for the sale of coals on commission, and to collect monies in connection with his orders, but he was at liberty to dispose of his time as he thought best, and to get or abstain from getting orders as he might choose, he was held not to be a clerk or servant within the LARCENY ACT. 553 Statute.—Reg. vs. Bowers, 10 Cox, 264. In delivering judgment in that case, Erie, C. J., observed : " The cases have established that a clerk or servant must be under the orders of his master, or employed to receive the monies of his employer, to be within the Statute ; but if a man be intrusted to get orders and to receive money, getting the orders where and when he chooses, and getting the money where and when he chooses, he is not a clerk or servant within the Statute." — See R. vs. Walker, Dears. & B. 600 ; R. vs. May, L. & C. 13. — A person whose duty it is to obtain orders where and when he likes, and forward them to his principal for execution, and then has three months within which to collect the money for the goods sent is not a clerk or servant ; if such a person, at the request of his principal, collects a sum of money frc/n a customer, with the obtaining of whose order he has had nothing to do, he is a mere volunteer, and is not liable to be prosecuted for embezzlement, if he does not pay over or account for the money so received. Reg. vs. Mayle, 11 Cox, 150.— The prisoner was employed by a coal merchant under an agreement whereby " he was to receive one shilling per ton procuration fee, payable out of the first payment, four per cent for collecting, and three pence on the last payment ; collections to be paid on Friday evening before 5 p.m., or Saturday before 2 P.M." He received no salary, was not obliged to be at the office except on the Friday or Saturday to account for what he had received : he was at liberty to go where he pleased for orders : held, that the prisoner was not a clerk or servant within the Statute relating to embezzle- ment. — Reg. vs. Marshall, 11 Cox, 490. — Prisoner was engaged by U. at weekly wages to manage a shop ; U. then assigned all his estate and effects to R., and a notice was served on prisoner to act as the agent of R. in the 554 THE CRIMINAL STATUTE LAW. management of the shop. For fourteen days afterwards R. received from U. the shop moneys. Then the shop money was taken by U. as before. Prisoner received his weekly wages from U. during tho whole time. Some time after a composition deed was executed by R. and U. and U.'s creditors, by which R. re-conveyed the estate and effects to U. ; but this deed was not registered until after the embezzlement charged against the prisoner: held, that prisoner was the servant of U. at the time of the embezzlement.— Reg. vs. Dixon,. 11 Cox, ] 78.— The prisoner agreed with the prosecutor, a manufacturer of earthenware, to act as his traveller, and "diligently employ himself in going from town to town, in England, Ireland and Scotland, and soliciting orders for the printed and decorated earthenware manufactured by the prose- cutor, and that he would not, without the consent in writing of the prosecutor, take or execute any order for vending or disposing of any goods of the nature or kind aforesaid for or on account of hiipself or any other person." It was further agreed that the prisoner should be paid by commission, and should render weekly accounts. The prosecutor subsequently gave the pri- soner wri ten permission to take orders for two other manufacturers. The prisoner being indicted for embez- zlement, held, that he was a clerk or servant of the prosecutor within the meaning of the Statute. — Reg. vs. Turner, 11 Cox, 551. Lush, J., in this case, said : " If a person says to another carrying on an independent trade, ' if you get any orders for me I will pay you a commis- sion,' and that person receives money and applies it to his own use, he is not guilty of embezzlement, for he is not a clerk or servant, but if a man says ' I employ you and will pay you, not by salary, but by commission ' the person employed is a servant. In the first case, the LARCENY ACT. 655 person employing has no control over the person em- ployed J in the second case, the person employed is subject to the control of the employer. And on this, this case was distinguished from Reg. vs. Bowers, and Reg. vs. Marshall, sttpra.—So, in Reg. vs. Bailey, 12 Cox, 56,the prisoner was employed as traveller to solicit orders, and collect the moneys due on the execution of the orders, and to pay over moneys on the evening of the day when collected, or the day following. The prisoner had no salary but was paid by commission. The pri- soner might get orders where and when he pleased within his district. He was to be exclusively in the employ of the prosecutors, and to give the whole of his time, the whole of every day, to their service; held, that the prisoner was a clerk and servant within the Statute. A person engaged to solicit orders and paid by com- mission on the sums received, which sums he was forth- with to hand over to the prosecutors, was at liberty to apply for orders, when he thought most convenient, and was not to employ himself for any other persons : held, not a clerk or servant within the Statute : the prisoner was not under the control and bound to obey the orders of the prosecutors.— Reg. vs. Negus, 12 Cox, 492. Prisoner was employed by B. to navigate a barge, and was entitled to half the earnings after deducting the ex- penses. His whole time was to be at O.'s service, and his duty was to account to 0. on his return after every voyage. In October, prisoner was sent with a barge load of bricks to London, and was there forbidden by 0. to take back manure for P. Notwithstanding this, prisoner took the manure, and received £4: for the freight, which he appropriated to his own use. It was not proved that he carried the manure, or received the freight for his mas- ter, and the person who paid the ^4 did not know for 566 THE OBIMINAL STATUTE LAW. whom it was paid : held, that the prisoner could not be convicted of embezzlement, as the money was not re- ceived by him in the name, or for, or on account of his master. — Reg. vs. CuUum, 12 Cox, 469. It is not necessary that the employment should be permanent : if it be only occasional, it will be sufficient. Where the prosecutor having agreed to let the defendant carry out parcels when he had nothing else to do, for which the prosecutor was to pay him what he pleased, gave him an order to receive two pounds, which he re- ceived and embezzled, he was holden to be a servant within the meaning of the Act. — R. vs. Spencer, R. & R. 299 ; R. vs. Smith, R. & R. 616. And in R. vs. Hughes, 1 Mood. 370, where a drover, who was employed to drive t\yo cows to a purchaser, and receive the purchase money, embezzled it, he was holden to be a servant within the meaning of the Act, by the judges ; but the judge presiding the trial seemed to be of a con- trary opinion, and R. vs. Nettleton, 1 Mood. 259, R. vs. Burton, 1 Mood. 237, appear to be adverse to R. vs. Hughes.— See R, vs. Tongue, Bell, 289 ; R. vs. Hall, 1 Mood. 374 ; R. vs. Miller, 2 Mood. 249 ; R. vs. Proud, Leigh & Cave, 97 ; 9 Cox, 22. — The treasurer of a friendly society, into whose hands the monies received on behalf of the society were to be paid, and who was to pay no money except by an order signed by the secretary and counter-signed by the chairman or a trustee, and who by the Statute was bound to render an account to the trustees, and to pay over the balance on such account- ing when required, but was not paid for his services, is not a clerk or servant, and cannot be indicted for em- bezzlement of such balance. — Reg. vs. Tyrie, 11 Cox, 241. — And before the Statute making it larceny or em- bezzlement for a partner to steal or embezzle any of the LAROENT ACT. 56T co-pnrtnership property, tho secretury of a friendly society, and himself a member of it, could not be con- victed on an indictment for embezzling the society's monies, laying the property in, and describing him as tlie servant of A. B. (another mer'ber of tho society) and others, because the " others" would have comprised him- self, and so the indictment would in fact have charged him with embezzling his own money, as his own servant. ~R. vs. Diprose, 1 1 Cox, 185 ; R. vs. Taffs, 4 Cox, 169 j R. vs. Bren. L. & C. 346. But a stealing or embezzle- ment by a partner is now provided for by sect. 38, ante. The trustees of a benefit building society borrowed money for the purpose of their society on tlieir individual responsibility : the money, on one occasion, was received by their secretary and embezzled by him : held, that the secretary might be charged in the indictment for em- bezzlement of the property of W. and others, W. being one of the trustees,and a member of the society Reg. vs. Bed- ford, 11 Cox, 367. — A person cannot be convicted of embezzlement as clerk or servant to a society, which,in con- sequence of administering an unlawful oath to its mem- bers, is unlawful, and prohibited by law. — R. vs. Hunt, 8 C. & P. 642.— But an unregistereii friendly society or trades union may prosecute its servants for embezzlement of its property, though some of its rules may be void as being in restraint of trade, and contrary to public policy. Rules in a trades union or society imposing fines upon members for working beyond certain hours, or for apply- ing for work at a firm where there is no vacancy, or for taking a person into a shop to learn weaving where no vacant loom exists, though void as being in restraint of trade, do not render the society criminally responsible. —Reg. vs. Stainer, 11 Cox, 489. — If the clerk of several partners embezzle the private money of one of them, it 658 THE CRIMINAL STATUTE LAW. IB an embezzlctnont within tho A»i, for ho in a servant of each. kSo where a traveller is ernploycMl by several per- sons and pai*! wages, to receive money, he is the indivi- dual servant of each — R. vs. Carr, R. & R. 198 ; R. vs. Batty, 2 Mood. 257 ; R. vs. Leach, Archbold, 'ir,()._So a coachman, employed by one propric^tor of a coach to drive a certoin part of the journey, and to receive money and hand it over to him, may be charged with embezzl- ing the money of that proprit;tor, though the money, when received, would belong to him and his partners. — R. vs. White, 2 Mood. 91. In R. vs. Glover, L. & C. 406, it was held that a county court bailiff, who has fraudulently misappropriated the proceeds of levies, made under county court process, canno^ be indicted for embezzling the monies of the high- bail, .ns master ; th'!de monies are not the property of the high-bailiff. — A distraining broker employ (hI exclu- sively by the prosecutor, and paid by a weekly salary and by a commission, is a servant within the Statute. — R. vs. Flanagan, 10 Cox, 561. Where the prisoner was charged with embezzlement, but his employer who made the engagement with him was not called to prove the terms thereof, but only his managing clerk, who knew them through repute alone, having been informed of them by his emplofler, it was held that there was no evidence to go to the jury that the prisoner was servant to the prosecutor.— R. vs. Tay- lor, 10 Cox, 544. Money received by the defendant tY6m his master him- self, for the purpose of paying it to a third person, is not within the embezzlement section ; it is larceny. — R. vs. Peck, 2 Russell, 449; R. vs. Smith, R. & R. 267 ; R. vs. Hawkins, 1 Den. 584 ; R. vs. Goodenough, Dears. 21C. The principle in these and the following cases, is LABCINT ACT. 669 that in law, the posBPSsion by the servant is poBsession by tho nuiNtor, and that tiio niaHter wiio places money in hit servant's han(' ^ for paying bills, &c., &c., &c., does not loose the possession of his money ; so, that the servant, in framlnlently misappropriating this money, takes it wrongfully, in law, in his master's possession, mt/f, com- mits larceny, not embezzlement. And the principle is the same, when money is constructively in tho possession of the master by the hands of any other clerk or servant. — K. vs. Murray, I Mood. 276 ; R. vs. Watts, 2 Den. 16 ; It. vs. Head, Dears. 1G8-267. So, where the defendant's duty was to place every night in an iron safe, provided by his employer lor that pur- pose, in an office where he conducted the business of his employer, though in his own house, tho monies received by him on his employer's account and not used during the day, it was held that by placing it there, he deter- mined his own exclusive possession of the money, and that, by afterwards taking some of it out of the safe, ' animo furandi,\\Q was guilty of larceny 11. vs. Wright, Dears. & B. 431.— The fraudulent appropriation of money, which has never been in the master's own possession, and which the defendant has received from a fellow-ser- vant to give to his master, is embezzlement.— R. vs. Masters, 1 Den. 332. Greaves, note d^ 2 Russell, 450, thinks this is a wrong decision.— Where the master gave a stranger some -marked money, for the purpose of pur- chasing goods from the master's shopman, in order to try the shopman's fidelity ; tiie stranger bought the goods, and the shopman embezzled the money, the judges held this to be a case within the Act.— R. vs. Headge, R. & R. IGO } R. vs. GUI, Dears. 289.— Where the defendant's duty was to sell his master's goods, entering the sales in a book, and settling accounts with bis master weekly. 560 THE CniMINAL STATUTE LAW. and upon such a sale the defendant fraudulently omitted to make an entry of it in the book, and appropriated the money which he received from the buyer, this was held to be embezzlement and not larceny. — R. vs. Betts, Bell, 90. — A defendant, whose business it was to receive orders, to take the materials from his master's shop, work them up, deliver the goods, receive the price for them, and pay it over to his master, who at the end of the week paid the defendant a proportion of the price for his work, received an order for certain goods, took his master's materials, worked them up on his premises, delivered them and received the price, but concealed the trans- action, and embezzled the money ; upon a conviction for embezzlement, it was doubted whether this was not a larceny of the materials, rather than a case within the statute : the Judges held the conviction right. — R. vs. Hoggins, R. & R. 145. But where it appeared that the defendant was em- ployed as a towTi traveller and collector, to receive orders from customers, and enter them in the books and receive the money for the goods supplied thereon, but had no authority to take or direct the delivery of goods from his master's shop, and a customer having ordered two articles of the defendant, he entered one of them only in the order book, for which an invoice wa,3 made out by the prosecutor for the customer ; but the defendant entered the price of the other at the bottom of the invoice, and having caused both to be delivered to the customer, re- ceived the price of both, and accounted to the prosecutor only for the former ; this was held not to be embezzle- ment but larceny. — R. vs. Wilson, 9 C. & P. 27. — The prisoner, as foreman,by fraudulently misrepresenting that twenty-one pounds, eighteen shillings was due for wacres to the men under him, obtained that sum from his LARCENY ACT. 561 master's cashier. On the pay-sheet made out by the pri- soner, one pound, ten shillings and four pence was set down as due to W., whereas only one pound, eight shil- lings was due, and that amount only wasL paid by pri- soner to W. out of the twenty-one pounds, eighteen shil- lings; the excess, two shillings and four pence, was appropriated, out of the twenty-one pounds eighteen shillings, to the prisoner's own use, he intending so to appropriate it at the time he received the twenty-one pounds eighteen shillings : held, that the prisoner was guilty of larceny of his master's two shillings and four pence.—Reg. vs. Cooke, 12 Cox, 10. See R. vs. Beau- mont, Dears 270 ; E.. vs. Thorp, Dears & B. 262 ; R. vs. Harris, Dears. 344; R. vs. Sullens, 1 Mood. 129. \ correct entry of money received in one book out of seve- ral is no answer to a charge of embezzlement, where the prisoner has actually appropriated the money. — Reg. vs. Lister, Dears. & B. 118. The usual presumptive evidence of embezzlement is that the defendant never account-^d with his master for the money, &c., &c., received by him, or that he denied his having received it. But merely accounting for the money is not sufficient, if there is a misappropriation of it. — Reg. vs. Lister, supra. Greaves says, note w, 2 Russell, 455 : " A fallacy is perpetually put forward in cases of embezzlement : the offence consists in the con- version of the thing received : no entry or statement is anything more than evidence bearing on the character of the disposal of the thing ; and yet entries are constantly treated as the offence itself. If a man made every entry in due course, it.^^iuld oaly, at most, amount to evidence that he did not, when he made them, intend to convert the money ; and yet he might have converted it before, or mjlght do so afterwards. If he were proved 562 THE CRIMINAL STATUTE LAW. to have converted it before he made the entries, the offence would be complete, and no entry afterwards made could alter it. So, on the other hand, if he made no entries or false entries but actually paid the money to hie master, he would be innocent." See Reg. vs. Guelder, Bell, 284, and Brett's, J., remarks in Reg. vs. Walsten- holme, 11 Cox, 313; R. vs. Jackson, 1 C & K. 384.— The fact of not paying over monies received by a servant is proof of embezzlement, even if no precise time can be fixed at which it was his duty to pay them over, if his not accounting for them is found by the jury to have been done fraudulently. — R. vs. Welch, 1 Den. 199 ; R. vs. Wortley, 2 Den, 333. In R. vs. Grove, 1 Mood. 447, a majority of the judges (eight against seven) are reported to have held that an indictment for embezzlement might be supported by proof of a general deficiency of monies that ought to be forthcoming, without showing any particular sum received and not accounted for. See also, R. vs. Lambert, 2 Cox, 309 ; R. vs. Moah, Dears. 626. But in R. vs. Jones, 8 C. «& P. 288, where, upon an indictment for embezzlement, it was opened that proof of a general deficiency in the prisoner's accounts would be given, but none of the appropriation of a specific sum, Alderson, B., said : " Whatever difference of opinion there might be in R. vs. Grove, {ubi supra) that proceeded more upon the particular facts of that case than upon the law : it is not sufficient to prove at the trial a general deficiency in account : some specific sum must be proved to be embezzled, in like manner as in larceny some particular article must be proved to have been stolen. See also R. vs. Chapman, 1 C. & K. 119, ^?. Abseil, 460, and Reg. vs. Wolstenholme, 11 Cox, 313. A conductor of a tramway car was charged with LARCENY ACT. 663 -embezzling tliree shillings. It was proved that on a certain journey there were fifteen threepenny fares, and twenty-five twopenny fares, and the conductor was seen to give tickets to each fare and to receive money from each, but what sum did not appear. He made out a way bill for the journey debiting himself with only nine threepenny faros and sixteen twopenny fares. The mode of accounting was to deliver the way bills for each journey to a clerk, and to hand in all the money received during each day on the following morning. The prisoner's money should have been ^3 1 9, accord- ing to his way bills for the day, but he paid in only ^308: held, that there was sufficient evidence of the receipt of seven shillings and eleven pence, the total amount of fares of the particular journey, and of the embez:?lement of three shillings, part thereof —Reg. vs. King, 12 Cox, 73. Where the indictment contains only one count, charging the receipt of a gross sum on a particular day, and it appears in evidence that the money was received in different sums on different days, the prosecutor will bo put to his election, and must confine himself to one sum and one day— R. vs. Williams, G C. & P. 626. Upon the trial for any offence, mentioned in these sections, the jury may convict of an attempt to commit the same, under sect. 49 of the Procedure Act of 1869, if the evidence warrants it. LARCENY BY PUBLIC OFFICERS, ETC. EMBEZZLEMENT BY PUBLIC OFFICERS, ETC. Sect. 71.— Whosoever being employed in the public service of Her Majesty, or of the Lieutenant Governor or Government of any Province of Canada or of any munici- pality, steals any chattel, money or valuable security belonging to or in the possession or power of Her Majesty- or of such Lieutenant Governor, Government or LL 564 THE CRIMINAL STATUTE LAW. /^ <. X municipality, or intrusted to or received or taken intO' possession by him by virtue of his employment, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding fourteen years and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement. — 24-25 Vict., ch. 96, sect- 69, Imp. Sect. 72 — Whosoever being employed in the public service of Her Majesty, or of the Lieutenant Governor or Government of any Province of Canada, or of any muni- cipality, and intrusted 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 received or taken into possession by him by virtue of his employment, or any part thereof, or in any " matter^ (manner) fraudulently appUes or disposes of the same, or any part thereof to his own use or benefit, or for any purpose whatsoever,' except for the public service, or the service of such Lieutenant Governor, Government or municipality, shall be deemed to^havo feloniously stolen the same from Her Majesty, or from such municipality, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding fourteen years and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour ; and every offender against this and the last preceding section may be dealt with, indicted, tried and punished either in the district, county or place in which he is apprehended or is in custody, or in which he has committed the offence ; and in every case of Jarceny, embezzlement or fraudulent application or dis-- LARCENY ACT. 565 position of any chattel, money or valuable security, in this and the last preceding section mentioned, it shall be lawful in the warrant of commitment by the Justice of the Peace, before whom the offender is charged, and in the indictment to be preferred against such offender, to lay the property of any such chattel, money or valuable security in Her Majesty, or in the municipality, as the case may be.— 24-25 Vict., ch. 96, sect. 70, Imp. As to sureties for the peace, in felonies under this Act see post, sect. 122. As to solitary confinement, see sec/ 94 of the Procedure Act of 1869. As to the interpreta- tion of the words "valuable security," see ante, sect. 1. These clauses have the effect of extending sections* 69 and 70, as to larceny and embezzlement by clerks or servants, to public and municipal officers, and the remarks under the said sections 69 and 70, ante, may be applied here. Sections 73 and 74, ante, apply also to sec- tions 71 and 72. Indictment under sect. 71, — on . . . at being then employed in the public service of Her Majesty to wit, being then and there .... one ... . belonging to Her Majesty, feloniously did steal, take and carry away, against the form 3 Burn's Just. 319. This form has not the word " feloniously " in 3 Burn's Just., loc. cit. Indictment under sect. 72. — .... on at being employed in the public service of Her Majesty, and being entrus jd, by viri;ue of such employment with the receipt, custody, management and control of a certain valuable security, to wit ... . did then and there, whilst he was so employed as aforesaid, receive and take into his possession the said valuable security, and the said valuable security then fraudulently and feloniously did embezzle: and so the jurors aforesaid, upon their oath 566 THE CRIMFNAL STATUTE LAW. / aforesaid do say, that .... (defendant) in manner and form aforesaid, the said valuable security, the property of Her Majesty, from Her Majesty, feloniously did steal, take and carry away, against the form 3 Burn's Just. 319 : see note to last form. A second count laying what particular office the defendant held may be added. Evidence of acting in the capacity of an officer employed by the crown is suffici<=«nt to support an indict- ment: and the appointment need not be regularly proved. — Reg. vs. Townsend, C. & M. ]78; R. vs. Borrett, 6 C. & P. 124. Proof of a general deficiency in account would probably not be sufficient : the embezzle- ment of a specific sum would have to be proved. — See cases on this subject, ante, under sect. 70. LARCENY BY TENANTS OR LODQERS. Sect. 75. — Whosoever steals any chattel or fixture, let to be used by him or her, in or with any house or lodg- ing, 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 shall be liable to be imprisoned for any term less than two years, with or without hard labour, and with or without solitary confinement; and in case the value of such chattel or fixture exceeds the sum of twenty-five dollars, shall be liable to be imprisoned in the Penitentiary for any term not exceeding seven years and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary con- finement ; and in every case of stealing any chattel in this section mentioned, it shall be lawful to prefer an indictment in the common form as for larceny, and in every case of stealing any fixture, in this section men- LARCENY ACT. 667 ion men- tioned, to prefer an indictment in the same form as if the offender were not a tenant or lodger, and in either case to lay the property in the owner or person letting to hire.— 24-25 Vict., ch. 96, sect. 74, Imp. As to sureties for the peace in felonies under this Act, me post, sect. 122. As to solitary confinement, see sect. 94 of the Procedure Act of ] 869. If the indictment be for stealing a chattel, it may be, by the clause itself, in the common form for larceny, and in case of stealing a fixture, the indictment may be in the same form as if the offender were not a tenant or lodger, and the property may be laid either in the owner or person letting to hire. If tlic indictment be for steal- ing a fixture, use form under sect. 20, ante, and describe the dwelling-house as that of the landlord, as in bur- glary. — 3 Bum's Just. 319. There may be a conviction of an attempt to commit any offence mentioned in this section, upon a trial for that offence.— Sect. 49 of the Procedure Act of 1869. By common law, a lodger had a special property in the goods which were let with his lodgings : during the lease he, and not the landlord, had the possession : there- fore the landlord could not maintain trespass for taking the goods : in consequence, the taking by the lodger was not felonious.— Meere's case, 2 Russell, 519'; R. vs. Bel- stead, R. & R. 411. Hence, the statutory enactments on the subject. y FRAUDS BY AGENTS, BANKERS OR FACTORS. Sect. 76. — Whosoever, having been intrusted, either solely, or jointly with any other person, as a banker, merchant or broker, attorney or other agent, with any money, or security for the payment of money, with any direction m writing, to apply, pay or ( f ^Wf «'' ■"■^' &68 THE CRIMINAL STATUTE LAW. 11 deliver such money or security or any part thereof res- pectively, 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 intrusted, such money, security or proceeds, or any part thereof respectively, and whosoever, having been intrusted, either solely or jointly with any other person, as a banker, mer- chant, broker, attorney or other agent, 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 there- of, or of this Dominion of Canada, or any Province there- of, or of any British colony or possession, or of any foreign state, or in any stock or fund of any body cor- porate, 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 intrusted to him, sells, negotiates, transfers, pledges or in any manner con- verts to his own use or benefit, or the use or benefit of any person other than the person by whom he has been so intrusted, such chattel, or security or the proceeds of the same, or any part therebf, or the share or interest in the stock or fund to which such power of attorney relates, or any part thereof, is guilty of a misdemeanor, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding seven years and not less than two years, or to be imprisoned in any other gaol or glace of confinement for any term less than two years, with or without hard labour, and with or without I LAROKNY ACT. 669 -solitary confinement, but nothing in this section contain- ed relating to agents shall affect 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 shall restrain 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 va- luable security, according to the tenor and effect thereof in such manner as he might have done, if this Act had not been passed, nor from selling, transferring or otherwise disposing of any securities or effects in his possession, upon which he has any lien, claim or demand entitling him by law so to do, unless such sale, transfer or other disposal extends to a greater number or part of such securities or effects than are requisite for satisfying such lien, claim or demand.— 24-2-5 Vict., ch. 96, sect. 75, Imp. Greaves says:— "The former enactments did not extend to -> direction to apply any security for the pay- ment of money ; the present clause is extended to that case, and the words "pay or deliver" "to any person" are introduced to. include cases where the direction is to pay or deliver a bill of exchange or other security to a particular person. The words " or the use or benefit of f.iy person other than the person" are introduced to include cases where the banker, &c., &c., &c., converts the property not to his own use, but to that of some per- son other than the person employing him. If it should be suggested that these words are too large, as they would include a payment to the use of A. by the direc- tion of the party intrusting the money to the banker ; the answer is, that to bring a case within this clause, I to THE CRIMINAL STATUTE LAW. if three things must concur : the property must be disposed of, first, in violation of good faith ; secondly, contrary to the term of the direction; thirdly, to the use of the banker or of some one other than the party intrusting the banker, and consequently no case where the banker obeys the direction of the party intrusting him can come within the clause. See post, under section 92. Sect. 77. — Whosoever, being a banker, merchant, broker, attorney, or agent, and being intrusted 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 manner 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 intrusted, is guilty of a misdemeanor, and shall be liable to any of the punishments which the Court may award as hereinbefore last mentioned. — 24-25 Vict., ch. 96, sect. 76, Imp. See post, under section 92. Sect. 78. — Whosoever, being intrusted, either solely or jointly with any other person, with any power of attorney, for the sale or transfer of any property, fraudu- lently 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, is guilty of a misdemeanor, and shall be liable to any of the punishments which the Court may award as hereinbefore last mentioned. — 24-25 Vict., ch. 96, sect. 77, Imp. See post, under section 92. Sect. 79. — Whosoever being a factor ,or agent in- tiusted, either solely or jointly, with any other person, LAROKNY ACT. 671 for the purpose of sale or otherwise, with the possession of any goods, or of uny document of title to goods, con- trary to or without the authority of his principal in that behalf, for his own use or benefit, or the use or benefit of any person other than the person by whom he was so intrusted, and in violation of good faith, makes any consignment, deposit, transfer, or delivery of any goods or document of title so intrusted to him as in this section before mentioned, as and by way of a pledge, lien or security for any money or valuable security, bor- rowed or received by such factor or agent at or before the time of making such consignment, deposit, transfer or delivery, or intended to be thereafter borrowed or received, or contrary to, or without such authority, for his own use or benefit, or the use or benefit of any per- son other than the person by whom he was so intrusted, and in violation of good faith, accepts any advance of any money or valuable security on the faith of any con- tract or agreement to consign, deposit, transfer or delivery of any (deliver any) such goods or document of title, is guilty of a misdemeanor, and shall be liable to any of the punishments which the Court may award as hereinbefore last mentioned ; and every clerk or other person 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, is guilty of a misdemeanor, and shall be liable to any of the same punishments ; provided that no such factor or agent shall be liable to any prosecution for con- signing, depositing, transferring or delivering any such goods or documents of title, in case the same are not made as security for, or subject to the payment of any greater sum of money than the amount, which at the time of such consignment, deposit, transfer or delivery If 'mm 572 TUB CRIMINAL 8TATUTE LAW. i was justly due and owing to such agent from liis princi- pal, together with the amount of any bill of exchange drawn by or on account of such principal, and accepted by such factor or agent.— 24-25 Vict., ch. 9G, sect. 78, Imp. »See 2)ost, under section 92. Sect. 80 — Any factor or agent intrusted as aforesaid, find possessed of any such document of title, whether derived immediately from tho owner of such goods or obtained by reason of such factor or agent having been intrusted with the possession of the goods, or of any other document of title thereto, shall bo deemed to have been intrusted with the possession of the goods represented by such document of title, and every contract pledging or giving a lien upon such document of title as aforesaid, shall be deemed to be a pledge of and lien upon the goods to which the same relates, and such factor or agent shall be deemed to be possessed of such goods or document whether the same are in his actual custody or held by any other person subject to liis control, or for him, or on his behalf, and where any loan or advance is bond fide made to any factor or agent intrusted with and in pos- session of any such goods or document of title, on the faith of any contract or agreement in writing to consign, deposit, transfer or deliver such goods or document of title, and such goods or document of title is or are actually received by the person making such loan or ad- vance, without notice that such factor or agent was not <'»uthorized to make such pledge or security, every such loan or advance shall be deemed to be a loan or advance on the security of such goods or document of title, within the meaning of the last preceding section, though such goods or document of title are not actually received by the person making such loan or advance, till a period subse- LARCENY ACT. 673 qiient thereto, and nny contract or agreement whether made, direct with such factor or agent, or with any clerk or other person on his hehalf, Hlsall be deemed a contract or agreement with such factor or agent, and any payment made, whether by money or bill of exchange or other negotiable security, shall bo deemed to bo an advance within the meaning of the last preceding section, and a factor or agent, in possession, as aforesaid, of such goods or document, shall be taken for the purpose of the last preceding section to have been intrusted therewith by the owner thereof, unless the contrary be shown in evi- dence.— S-t-Si} Vict., ch. 90, sect. 79, Imp. fieejiost, under section 92. Sect. 81. — Whosoever, being a trustee of any property for tlie use or benefit, either wholly or partially, of some other person, or for any public or charitable purpose, witli intent to defraud, converts or appropriates the same or any part thereof to or for his own use or benefit, or the use or benefit of any person other than such person as afore- said, or for any purpose other than such public or chari- table purpose, as aforesaid, or otherwise disposes of or destroys such property or any part thereof, is guilty of a misdemeanor, and shall be liable to any of the punish- ments which the Court may award, as hereinbefore last mentioned. Provided that no proceeding or prosecution for any offence included in this section shall be commenced without the sanction of the Attorney General or Soli- citor General for that Province in which the same is to hd instituted, provided also that when any civil proceeding has been taken against any person to whom the provisions of this section may apply, no person who has taken such civil proceeding shall commence any prosecution under this section without the sanction of the Court or Judge 574 THE CRIMINAL STATUTE LAW. before whom such civil proceeding has been had or is pending.— 24-25 Vict., ch. 96, sect. 80, Imp. See post, under section 92, Sect. 82 — Whosoever, being a director, member, man- ager or public officer of any body corporate or public com- pany, fraudulently takes or applies for his own use or benefit, or for any use or purpose other than the use or purposes of such body corporate or public company any of the property of such body corporate or public com- pany, is guilty of a misdemeanor, and shall be liable ta any of the punishments which the Court may award as hereinbefore last mentioned. —24-25 Vict., ch. 96, sect. 81, Imp. Seepost, under section 92. Sect. 83.— Whosoever, being a director, member, man- ager, or public officer of any body corporate or public company, as such, receives or possesses himself of any of the property of such body corporate or public company, otherwise than in payment of a just debt or demand, and, with intent to defraud, 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 pubHc company, is guilty of a misdemeanor and shall be liable to any of the punishments which the Court may award as hereinbefore last mentioned.— 24-25 Vict., ch. 96, sect. 82, Imp. See post, under section 92. Sect. 84. — Whosoever, being a director, manager, pub- lic officer or member of any body corporate or public company, with intent to defraud, destroys, alters, muti- lates or falsifies any book, paper, writing or valuable security belonging to the body corporate or public com- pany, or makes or concurs in the making of any false entry, or omits, or concurs in omitting any material par- LARCENY ACT. 575 ticular in any book of account or document, is guilty of a misdemeanor, and shall be liable to any of the punish- ments which the Court may award, as hereinbefore last mentioned. — 24-25 Vict., ch. 9G, sect. 83, Imp. See post under section 92. Sect. 85. — Whosoever, being a director, manager or public officer or member of any body corporate or pubHc company, makes, circulates or publishes, or concurs in making, circulating or pubHshing any written statement or account which he knows to be false in any material particular, with intent to deceive or defraud any member, shareholder, or creditor of such corporate or public company, or with intent to induce any person to become a shareholder or partner therein, or to intrust or advance any property to such body cor- porate or public company, or to enter into any security for the benefit thereof, is guilty of a misdemeanor, and shall be liable to any of the punishments which the Court may award as hereinbefore last mentioned. — 24-25 Vict., ch. 96, sect. 84, Imp. See post., under section 92. Sect. 86. — Nothing in any of the last ten preceding sec- tions of this Act contained shall enable or entitle any per- son to refuse to make a full and complete discovery by answer to any bill in equity, or to answer any question or interrogatory in any civil proceeding in any Court, or upon the hearing of any matter in bankruptcy or insol- vency ; and no person shall be liable to be convicted of any of the misdemeanors in the said sections mentioned by any evidence whatever in respect of any act done by him, if, any time previously to his being charged with such offence, he has first disclosed such act on oath, in consequence of any compulsory pr jcess of any court of law or eauitv. in anv action, suit or nrocepdino', bona fi 4 0t6 THE CRIMINAL STATUTE LAW, Jide instituted by any party aggrieved, or if he has first disclosed the same in any compulsory examination or deposition before any Court, upon the hearing of any matter in bankruptcy or insolvency.— 24-25 Vict., ch. 96 sect. 85, Imp. See post, under section 92. Sect. 87. — Nothing in the last eleven preceding sections of this Act contained, nor any proceeding, conviction or judgment to be had or taken thereon against any person under any of the said sections shall prevent, lessen, or impeach any remedy at law or in equity, which any party aggrieved by any offence against any of the said sections might have had if this Act had not been passed -, but no conviction of any such offender shall be received in evidence in any action at law or suit in equity against him ; and nothing in the said sections contained shall affect or prejudice any agreement entered into, or security given by any trustee, having for its object the restora- tion or repayment of any trust property misappropriated. —24-25 Vict., ch. 96, sect. 86, Imp. Seepostf under section 92. Sect. 88. — If the keeper of any warehouse, or any forwarder, common carrier, agent, clerk, or other person employed in or about any warehouse, or if any other factor or agent, or any clerk or other person employed in or about the business of such factor or agent, knowingly and wilfully gives to any person a writing purporting to be a receipt for or an acknowledgment of any goods or other property as having been received in his warehouse, or in the warehouse in or about which he is employed, or in any other manner received by him or by the person in or about whose business he is employed, before the goods or other pro- perty named in such receipt or acknowledgment have LARCENY ACT. 577 8e in or been actually delivered to him as aforesaid, with intent to mislead, deceive, injure or defraud any person or persons whomsoever, although such person or persons may be then unknown, or if any person knowingly Vfld wil- fully accepts, or transmits, or uses any such false receipt or acknowledgment, the person giving and the person accepting, transmitting or using such receipt or acknow- ledgment, are severally guilty of a misdemeanor, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding three years, and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years but not less than one year. {Not in the English Act.) Sect. 89.— If any merchandise has, in the name of the owner or of any other person, been shipped or delivered to the keeper of any warehouse or to any other factor, agent or carrier, to be shipped or carried, and the consignee afterwards advances any moneys or gives any negotiable security to such owner or other person, then, if after any such advance, the said owner or other person for his own benefit, and in violation of good faith, and without the consent of such consignee first had and obtained, makes any disposition of such merchandise different from and inconsistent with the agreement made in that behalf between such owner or other person aforesaid, and such consignee at the time of or before such money being so advanced or such negotiable security being so given^ with the intent to deceive, defraud or injure such consig- nee, the owner or other person aforesaid, and each and every other person knowingly and wilfully acting and assisting in making such disposition for the purpose of deceiving, defrauding or injuring such consignee, is or are guilty of a misdemeanor, and shall be liable to be impri- soned in thf l^enitentiary for any term not exceedin*^ 578 THE CRIMINAL bfATUTE LAW. three years, and not less than two years, or to be impri- soned in any other gaol or place of confinement for any term less than two years, but not less than one year ; but no person shall be subject , signed in his own name. S. wrote in reply " that she had received tlie contract note for Japan shares and had inclosed a cheque for £336 in payment, and that she was perfectly satisfied that he had purchased the shares for her." In fact, the bonds had not been offered to the dealer in one lot, but he had applied to a stock jobber, and agreed to buy three at £112 each, but never completed the purchase. Held that S.'s letter was a sufficient written direction, within the meaning of 24-25 Vict., ch. 96, sect. 75 (sect. 76, ante, of Canadian Statute) to apply the cheque to a par- LARCENY ACT. 581 ticular purpose, viz., in payment for the bonds Reo-. "VS. Christian, 12 Cox, 502. Indictment, under sect. 76, against a hanker for a fraud. ulent conversion of money intrusted to him. — that A. B. on . . did intrust C. D. as a banker, with a certain large sum of money, to wit, the sum of one hundred pounds, with a direction to the said C. D. in writing to pay the said sum of money to a certain person specified in the said direction, and that the said C. D. as such banker as aforesaid, afterwards, to wit, on in vio- lation of good faith and contrary to the terms of such direction, unlawfully did convert to his own use and bene- fit the said sum of money so to him intrusted as aforesaid against (In case of a security for money, the in- dictment must allege a written direction as to the appli- cation of the proceeds. A count should be added statiHg particularly the purpose to which the money was to be applied, and the person to whom it was to be paid.)— 3 Burn's Just. 320. Indictment, under sect. 76, against a banJcer, for sell- ing or converting goods or valuable securities intrusted to him for safe keeping, or for a special purpose " not" in writing.— that A. B. on did intrust to C. D. as a banker, for safe custody, a certain bill of exchange the property of the said A. B. drawn by on dated for the payment of the sum of one hundred pounds, without any authority to sell, negotiate, transfer or pledge the same; and that the said C. D. then being such banker, as aforesaid, and being so intrusted, as aforesaid, in violation of good faith and contrary to the object and purpose for which the said bill of exchange so intrusted to him as aforesaid, and whilst so intrusted as aforesaid, unlawfully did negotiate, transfer and con^ vert to his own use and benefit, the said bill of oYnhnrKro 582 THE CRIMINAL STATUTE LAW. against (Add other counts, as the case may sug- gest.)— 3 Burn's Just. 320. Indictments, under sections 77 and 78, may readily be framed from the above, omitting the special allegations as to safe custody, «fcc., «&c.— 3 Burn's Just. 320. Indictment J under sect. 79, against a factor for pledging goods. — that A. B. on did intrust to C. D,, he, the said C. D. then being a factor and agent, one hundred bales of cotton, of the value of one thousand pounds, for the purpose of selling the same, and that the said C. D. afterwards, contrary to and without the authority of the said A. B., for his own benefit, and in violation of good faith, unlawfully did deposit the said cotton with E. F. of as and by way of a pledge, lieu and security, for a sum of money, to wit, one hundred pounds, by the said C. D. then borrowed and received of and from the said E. F. against the 3 Burn's Just. 320. Indictment, under sect. 81, against a trustee for fraudu- lent conversion. — The Jurors for Our Lady the Queen upon their oath present, that, before and at the time of the committing of the oflfences hereinafter mentioned, to wit, on CD. was a trustee for cejtain property, to wit, five thousand pounds three per centum con- solidated bank annuities wholly (or partially) for the benefit of J. N., and that he, the said C. D., so being such trustee as aforesaid, on the day and year aforesaid, unlawfully and wilfully did convert and appropriate the said property to ^his own use, with intent thereby then to defraud, against the form (Add counts alleging that the defendant disposed of, showing the mode of disposition, or destroyed the property, if neGessarj').-^3 Bum^s Just. 321. Indictment, under sect. 82, against a director for fraud-^ LARCENY ACT. 588 iiUnt conversion of the company's money. — The jurors for Our Lady the Queen upon their oath present, that before and at the time of the committing of the offence herein- after mentioned, C. D. was a director of a certain public •company, called and that he, the said C. D., so being such director as aforesaid, on the did unlawfully and fraudulently take and apply for his own use and benefit, certain money, to wit, one thousand pounds, of and belonging to the said Company, against the —3 Burn's Just. 321. Indictment, under sect. 83, against directors for I'eeping fraudulent accounts — ^that C. D. on then being a director of a certain body corporate, called unlawfully did,a8 such director, receive and possess himself of certain of the property of the said body corporate, other- wise than in payment of a'just debt or demand, to wit, the sum of one hundred pounds, and unlawfully, with intent to defraud, did omit to make a full and true entry of the said sura, in the books and accounts of the said body corporate, against 3 Burn's Just. 321. Indictment, under sect. 84, against a director for destroy- ing or falsifying hooJes, &c., &c.— that C. D. on then being a director of a certain body corporate called unlawfully, with intent to defraud, did destroy {alter, or mutilate, or falsify) a certain hook {or paper, or writing, or valuable security) to wit belonging to the said body corporate, against the form — 3 Burn's Just. 321. Indictment, under sect. 85, against a directorfor publish- ing fraudulent statements.—- that before and at the time of the committing of the oftences hereinafter men- tioned, C. D. was a director of a certain public company, called , and that he, the said C. D., so being such director as aforesaid, on did unlawfully cir- ;84 THE CRIMINAL STATUTE LAW. culate and publish a certain written statement and account, which said written statement was false iu certain material particulars, that is to say, in this, to wit, that it was therein falsely stated that {state the particu- lars), he the said C. . D. then well knowing the said written statement and account to be false in the several particulars aforesaid, with intent thereby then to deceive and defraud J. N., then being a shareholder of the said public company (or with intent ) against the form Add counts stating the intent to be to deceive and defraud " certain persons to the jurors aforesaid unknown, being shareholders of the said public com- pany," and also varying the allegation of the intent as in the section. — 3 Burn's Just. 321 ; Archbold, 4G7. ' FALSE PRETENCES. Sect. 93. — Whosoever by any false pretence obtains from any other person any chattel, money or valuable security, with intent to defraud, is guilty of a mis- demeanor, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding three years and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement ; provided, that if, upon the trial of any person indicted for such misdemeanor, it is proved that he obtained the property in question in any such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted of such mis- demeanor, and no person tried for such misdemeanor shaU be liable to be afterwards prosecuted for larceny upon the same facts; provided also, that it shall be sufficient in any indictment for obtaining or attempting to obtain any such property by false pretences, to allege LARCENY ACT. M5 that the party accused did the act with intent to defraud, and without alleging an intent to defraud any particular person, and without alleging any ownership of the chattel, money or valuable security ; and on the trial of any such indictment, it shall not be necessary to prove an intent to defraud any particular person, but it shall be suflicient to prove that the party accused did the act charged with an intent to defraud. — 24-25 Vict., ch. 96, sect. 88, Imp. See2wst, sect. 94. As to the meaning of the vi'ords "valuable security,'^ see ante, sect. 1. As to fining the offender and requiring him to give sureties for the peace, in misdemeanors under this Act, see post, sect. 122, and sect. 110, post, for additional punishment, where value of property is over $200. As to solitary confinement, see sect. 94 of the Proce- dure Act of 1869. By sect. 49, of the Procedure Act of 18 >9, upon an indictment under any of these sections, the jury may return a verdict of guilty of an attempt to commit the offence charged, if the evidence warrants it. — Reg. vs. Roebuck, Dears. & B. 24 ; Reg. vs. Eagleton, Dears. 376, 515; Reg. vs Hensler, 11 Cox, 570: Archbold, 484. A verdict under sect. 110, post, may also be given. No indictment can be preferred for obtaining money or other property by false pretences, unless one or other of the preliminary steps required by sect. 28 of the Pro- cedure Act of 1869 has been taken. Cheats and frauds, heretofore punishable at common law, are now punishable under sect. 86 of the Proce- dure Act of 1869. The following is quoted from an American case, report- ed in 12 Cox, 208, tlie Commonwealth vs. Yerker : fW' af"' Hi B8(5 Till CiilMINAl, HTATirTK t,A\V. ** Tlio .liBtiiictioii botwroM Ijiroeiiy atid fiilso prctonooa Is u very nioo o\m in many inHtain'OH. In soino ot tlio oM KngliHh caws tho (litlbroneo m more urtiluMnl than real, mul rontH purely unon tocliiiical grouiulH. Much of iliig nicety in douhtlcHN ovviii^ to the fact that at the time these coHCH were doci*'' fl larceny w«is a capitnl felony in Englan«l, and tho judj4«'8 naturally leam-d to a men-ifid interpretation of the law out of a tender n'pard for Iniman life. lUit whatever may have heen tho cause the law Urn come down to \\n with «uch distinctions Th(» distinction btitween larceny and false pretences is well stated in Hussell, on {^rimes, :>n(l Vol., 4th Kdit., p. iiOO: <'The correct description in cases of this kind weenis to be that, if by means of any trick or artifice the owner of property is induced to part with tho possession only, still meaning to retain tho right of property, tlu* taking by such means will amount to larceny ; but if the owner part with not oidy the possession of the goods, but tiie right of property in them also, the ollence of tho party obtaining them will not be larceny, but the oHence of obtaining goods by false pretences." Indictment.'^ that J. S. on unlawfully, knowingly and designedly did falsely pretend to one a! H. that the said J. S. then was the servant of one 0. K. ^^' t»"lor, (the said (>. K. then and long before being well known to the said A. Ji. and a customer of the said A. B. in his business and way of trade as a woollen draper), and that the said J. S. was then sent by the said O. K. to the said A. B. for five yards of superfine woollen cloth, by means of which said false pretences, the said J. S. did then uidawfully obtain from the said A. B. five yards of superfine woollen cloth, with intent to defraud; whereas, in truth and in fact, the said J. S. was not then the servant of the said O. K., and whereas in truth and I.AnciCNY /TT. 5»7 in ftirttlio Haiti .1. H, wns not flii'n nout by tho wiid O. K. to IIh^ Ntiid A. M. for . It haH iM'ph WMMi, by N'ct, i)n, milr, that if, iipon tli<> trial for t\w iniwdi'mcaiior i)rovi!), hoa) post, whoHo proviHioiiN are not in the Knglish Act, providen that, if npon ati indict nuuit for larceny, the facts j»roved eHtab- lish an ol)taining by false pnstifnces, the Jnry nuiy find tim defiMidant unUti/ of such obtaining fn/ falsi; prrtmcrs. Thin conHtitntes an important difference between the KngliHh Statnte and onr own Statnto on the subject. IJnt it is probable that the rule laid down in Keg. vs. Gorbutt, Dears & JJ. HKi, would apply here, and that, upon an indictment for larceny, if the facts proved constitute an obtaining I y false pretences, a general verdict oi' guilty woidd bo wrong. It woidd be finding the defendant guilty of a felony, where a misdemeanor only hjis been proved against him.— lleg. vs. Adams, 1 Den. 38. Moreover, in such a case, the only verdict authorized by the Statute, is ^* guilty of obtaining such property by false pretences with intent to defrutid," and such must bo the words of a verdict, under such circumstances Under section 93, the words of the Statute are different, and, if larceny is proved, npon an indictment for obtain- ing by false pretences, the verdict must be for the latter. *' Shall not by reason thereof be entitled to be acquitted oUtich misdemeanor " are the words of the Statute. See Oreaves' note to Reg. vs. liryan, 2 Russell, 604. It 588 THE CRIMINAL STATUTE LAW would have been impossible and against the spirit of the law to allow a verdict for a felony upon an indictment for a misdemeanor.— See sect. 50 of the Procedure Act of ]869. The pretence must be set out in the indictment, R. vs. Mason, 2 T. R. 581 ; and it must be stated to be false, R. vs. Airey, 2 East, P. C. 30. And it must be of some existing fact ; a pretence that the defendant will do some act, or that he has got to do some act is not sufficient. R. vs. Goodall, R. & R. 461 ; Reg. vs. Johnston, 2 Mood. 254; Reg. vs. Lee, L. & C- 309. Where thfr pretence is partly a misrepresentation of an existing fact, and partly a promise to do some act, the defendant may be convicted, if the property is parted with in consequence of the misrepresentation of fact, although the promise also acted upon the prosecutor's mind. — Reg. vs. Fry, Dears. & B. 449 ; Reg. vs. West, Dears. & B. 575 Jennison, L. & C. 157. Where the pretence,gathered from all the circumstances, was that the prisoner had power to bring back the hus- band of the prosecutrix, though the words used were merely promissory that she, the prisoner, would bring him back, it was held a sufficient pretence of an existing fact, and that it is not necessary that the false pretence should be made in express words, if it can be inferred from all the circumstances attending the obtaining of the pro perty.— Reg. vs. Giles, L. & C. 502. An indictment for obtaining money by false pretences must state the false pretences with certainty, so that it may clearly appear that there was a false pretence of an existing fact : where the indictment alleged that the prisoner pretended to A.'s representative that she was to give him twe ity shillings for B., and that A. was going to allow B. ten shillings a week, it was held that it did Reg. vs. LARCENY ACT. 589 not sufficiently appear that there was any false pretence of an existing fact— Reg. vs. Henshaw, L. & C. 444. An indictment alleged that the prisoner obtained a coat by falsely pretending that a bill of parcels of a coat^ value ^0 14 6, of which, i;o 4 6 had been paid on account, and ^0 10 only was due, was a bill of parcels of another coat of the value of twenty-two shillings. The evidence was that the prisoner's wife had selected the ^0 14 6 coat for him subject to its fitting him, and had paid ^£0 4 6 on account, for which she received a bill of parcels giving credit for that amount. On trying on the coat, it was found to be too small, and the prisoner was then measured for one to cost twenty-two shillings. When that was made, it was tried on by the prosecutor, who was not privy to the former part of the transaction. The prisoner when the coat v/as given to him handed the bill of parcels for the j£0 14 6 and also ^0 10 to the prosecutor, saying "There is ^0 10 to pay.'' The bill was receipted, and the prisoner took the twenty- two shillings coat away with him. The prosecutor stated that beheving the bill of parcels to refer to the twenty-two shillings coat, he parted with that coat on payment of ^0 10 0, otherwise he should not have done so j held, that there was evidence to support a con- viction on the indictment.— Reg. vs. Steels, 11 Cox, 5. So the defendant may be convicted, although the pre- tence is of some existing fact, the falsehood of which might have been ascertained by inquiry by the party defrauded, R. vs. Wickham, 10 Ad. & Ed. 34 ; Reg. vs. Woolley, 1 Den., 559 ; Reg. vs. Ball, Car. & M. 249 ; Reg. vs. Roebuck, Dears. & B. 24; or against which common prudence might have guarded, R. vs. Young, 3 T. R. 98 ; Reg. vs. Jessop, Dears. & B. 442 ; Reg. vs. Hughes, 1 F. & F. 355. If, however, the prosecutor 590 THE CRIMINAL STATUTE LAW. knows the prjtence to be false, Reg. vs. Mills, Dears. & B. 205, or does not part with the goods in consequence of defendant's representation, Reg. vs. Roebuck, Dears. & B. 24, or parts with them before the representation is made, Reg. vs. Brooks, 1 F. & F. 502, or in consequence of a representation as to some future fact, R. vs. Dale, 7 Oar. & P. 352, or if the obtaining of the goods is too rem-tely connected with the false pretence, which is a question for the jury, Reg. vs. Gardner, Dears. & B. 40 ; Reg. vs. Martin, 10 Cox, 383, or if the prosecutor conti- nues to be interested in the money alleged to have been obtained, as partner with the defendant, Reg. vs. Watson, Dears. & B. 348 ; Reg. vs. Evans, L. & C. 252, or the object of the false pretence is something else than the obtaining of the money, Reg. vs. Stone, 1 F. «& F. 311, the defendant cannot be convicted. Falsely pretending that he has bought goods to a ■certain amount, and presenting a check-ticket for them, R. vs. Barnes, 2 Den. 59 ; or overstating a sum due for ife by false pretence, in order to enable B. his master, to pay himself a debt due from A., of which he could not obtain payment from A., it was held that C. could not be convicted.— R. vs. \yilliams, 7 Car. & P. 554. But it shall not be necessary to allege nor to prove the intent to defraud any person in particular. With intent to defraud are the words of the Statute, sect. 93, ante. But these words " with intent to defraud" are a material and necessary part of the indictment ; their omission is fatal, and cannot be remedied by an amendment inserting them. By Lush, J., Reg. vs. James, 12 Cox, 127. An indictment for false pretences charged tliat the defendant falsely pretended that he had a lot of trucks of coal at a railway station on demurrage, and that he required forty coal bags. The evidence was that defen- -dant saw prosecutor and gave him his card, " J. W. and GOO THE CRIMINAL 8TATUTK LAM Co., Timber nud Coal Mercliants," niul said that he wns largely in the coal and tijuber way, and in8j)ected some coal bags, but objocted to the price. The next day, lie called again, showed prosecutor a lot of correspondence, and said that he hiwl a lot of trucks of coal at the railway station under demurrage, and that he wanted some coal bags immediately. Prosecutor had only forty bags ready, and it was arranged that defendant was to have them, and pay for them in a week. They were delivered to defendant, and prosecutor said he let the defendant have tiie bags in consequence of his having the trucks of coal under demurrage, at the station ; there was evidence as to the defendant having taken premises, and doing a small business in coal, but he had no trucks of coal on demurrage at the station. The jury convicted the pri- soner, and on a case reserved, the judges held that the false pretence charged was not too remote to support the indictment, and that the evidence was sufficient to maintain it. — Keg. vs. Willot, 12 Cox, 68. The prisoner induced the prosecutor to buy a chain by knowingly and falsely asserting, inter alittj " it is a 15- carat fine gold, and you will see it stamped on every link." In point of fact, it was little more than 6-carat gold : hslclf upon a case reserved, that the above assertion was sufficient evidence of the false representation of a definite matter of fact to support a conviction for false pretences. — Reg. vs. Ardley, 12 Cox, 23. Reg. vs. Bry- an, Dears. & B. 2G5, 7 Cox, 313, ante, was said by the judges not to be a different decision, but that there, there was no definite matter of fact falsely represented. On an indictment for inducing the prosecutor, by means of false pretences, to enter into an agreement to take a field for the purpose of brick making, in the belief that the soil of the field was fit to make bricks, whereas LARcENV ACT. GOl it \vu8 not, he lu-iiig liiinsclfa brickmaker, and having in8jK!cttMl the fiold and exaniined tho soil: held tlmt, nevertheless, if he had been induced to take the field by false and fraudulent representations by the defendant of the specific matters of fact relating to the quality and character of the soil, as, for instance, that he had himself made good bricks therefrom, the indictment would be sustained ; hddj also, that it would be sulHcient, if he was partly and materially, though not entirely, influenced by the false pretences.— Keg. vs. English, 12 Cox, 171. The prisoner was convicted on an indictment charging that he did falsely pretend that he then lived at, and was the landlord of a beerhouse, and thereby obtained goods. The evidence was, that prisoner said he was the nephew of a man in prosecutor's employ which was true ; and that he lived at the beerhouse, but he did not say that he was the landlord of that house. Prosecutor, in parting with his goods, was influenced both by the fact of his being the nephew of his servant, and the statement that he lived at the beerhouse ; he believed him to be the landlord of the beerhouse ; held, that it was immaterial that the prosecutor was partly influenced by the fact that the prisoner was the nephew of his servant ; held^ also, that the allegation that the prisoner lived at and was the landlord of the beerhouse was divisible, and that the fact, "that he lived at the beerhouse," being false, he was rightly convicted.— Reg. vs. Lince, 12 Cox, 451. If the possession only and not the property has been passed by the prosecutor, the offence is larceny and not false pretences.— Reg. vs. RadclifTe, 12 Cox, 474. All persons who concur and assist in the fraud are principles, though not present at the time of making the pretence or obtaining the property. — Reg. vs. Mooland, 602 THE CRIMINAL STATUTE LAW. if .^1 8 Mood. 376 ; Reg. vs. Kerrigan, L. & C. 383 : see post, sect. 107. If, upon the trial of an indictment for obtaining by false pretences, a forgery is proved, the prisoner never- theless, if the fact proved include the misdemeanor, may be convicted of the misdemeanor, unless the Court sees fit to discharge the jury, and direct the prisoner to be in- dicted for the felony : sect. 50 of the Procedure Act of 1869. And it is prudent, in consequence of this section, to indict for obtaining money by false pretences, where- ever it is doubtful whether an instrument be a forgery or not.— 2 Russell, 677. OTHER CASES OF FALSE PRETENCES. Sect. 94. — Whosoever, by any false pretence, causes or procures any money to be paid, or any chattel or valua- ble security to be delivered to any other person, for the use or benefit, or on account of the person making such false pretence, or of any other person, with intent to de- fraud, shall be deemed to have obtained such money, chattel or valuable security, within the meaning of the last preceding section. — 24-2-5 Vict., ch. 96, sect 89, Imp. Greaves says : " This clause is new. It is intended to meet all cases where any person by means of any false pretence, induces another to part with property to any person other than the party making the pretence. It was introduced to get rid of the narrow meaning which was given to the word " obtain " in the judgments in Reg. vs. Garrett, Dears. 232, according to which it would have been necessary that the property should either have been actually obtained by the party himself, or for his benefit. This clause includes every case where a defendant by any false pretence causes property to be delivered to any other person, for the use either of the person making LARCENY ACT. 6oa the pretence, or of any other person. It, therefore is, a very wide extension of the law as laid down in Reg. vs. Garret, and plainly includes every case where any one, with intent to defraud, causes any person by means of any false pretence to part with any property to any per- son whatsoever." INDUCING PERSONS, BY FRAUDULENT MEANS, TO SIGN DEEDS, PAPERS, ETC., ETC. Sect. 95. — Whosoever, 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 wri j, 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, in order that the same may be afterwards made or convert- ed into, or' used, or dealt with as a valuable security, is guUty of a misdemeanor, and shall be liable to be impri- soned in the Penitentiary for any term not exceeding three years and not less than two years, or to be impri- soned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement. — 24-25 Vict., ch. 96, sect. 90, Imp. As to fine and sureties for the peace, see post, sect. 122. As to solitary confinement, see sect. 94, of the Procedure Act of 1869. Greaves says : " This clause is principally new it will include such cases as Reg. vs. Danger, Dears. & B. 307." Indictment. — that A. B. on unlawfully, knowingly and designedly did falsely pretend to one J.N. V4' that. = -. bv means of which false nretence the said A. B- I's', G04 THE CRIMINAL STATUTE LAW. .li^mMi did then unlawfully and fraudulently induce the said J.N. to accept a certain bill of exchange, that is to say a bill of exchauge for one hundred pounds, with intent thereby then to defriud and injure the said J. N., whereas, in tnith and in fact (here negative the false pretences, as in the form, under sect. 93, ante} against the form — Archbold, 485. FALSELY PllETENDING TO HAVE INCLOSED MONEY OR OTHER PROPERTY IN A POST LETTER. Sect. 96. — Whosoever for any purpose, or with any intent, wrongfully and with wilful falsehood, pretends or alleges that he enclosed and sent or caused to be enclosed and sent in any post letter any money, valuable securi- ty or chattel, w^iich in fact he did not so enclose and send, or cause to be enclosed and sent therein, is guilty of a misdemeanor, and shall be liable to be punished as if he had obtained the money, valuable security or chattel so pretended to be enclosed or sent, by false pretences ; and it shall not be necessary to allege in the indictment, or to prove on the trial that the act was done with intent to defraud. This clause is not in the English Act. W^INNING MONEY BY CHEATING AT A GAME. Sect. 97. — Wliosoever by any fraud or unlawful device or ill practice in playing at any game of cards or dice, or any other kind, or at any race, or in betting on any event, wins or obtiins any money, or property from any other person, shall be held to have unlawfully obtained the same by false pretences, and shall be punishable ac- cordingly.— 8-9 Vict., ch. 109, sect. 17, Imp. Misdemeanor: see post, sect. 122 ;— and ante, sect. 93. indictment. — The Jurors for Our Lady the Queen, upon their ojith present, that.W. M. on ...... by frauds LARCENY ACT. 60& unlawful device and ill-practice in playing at and with cards, unlawfully did win from one A. B., and obtain for himself, the said W.. M, a sum ol money, to wit, fifty pounds, of the monies of the said A. B., and so the jurors aforesaid, upon their oath aforesaid, do say that the said W. M. then, in manner and form aforesaid, unlawfully did obtain the said sum of money, to wit, fifty pounds, so being the monies of the said A. B. as aforesaid, from the said A. B. by a false pretence, with intent to cheat and defraud the said A. B. of the said sum of money, to wit, fifty pounds, against the form of the Statute in such case made and provided, and against the peace of Our Lady the Queen, her crown and dignity. (2nd count) : And the jurors aforesaid, upon their oath aforesaid do further present, that the said W. M. afterwards, to wit,^ on the day and year aforesaid, by fraud, unlawful device and ill-practice, in playing at and with cards, unlawfully did win from the said A. B. and obtain for himself, the said W. M., a certain sum of money with intent to cheat him, the said A. B., to the evil example of all others in the like case offending, against the form of the Statute in such case made and provided, and against the peace of Our Lady the Queen, her crown and dignity. — Archbold, 921. An indictment in the form contained m the. above second count was held good after verdict, although it was objected that it should have alleged that the money won was the property of the person defrauded. — R. vs* Moss, Dears. & B. 304. Where the offence was committed by two or more,^ and there is any doubt whether the game or fraud comes within this section, a count should be added as in — R. vs. Hudson, Bell, 2G3, charging a conspiracy to cheat. 606 THE CRIMINAL STATUTE LAW. The fraud or unlawful device, or ill-practice must be proved. — R. vs. Darmley, 1 Stark. R. 359 ; R. vs. Rogier, 2 D. «& R. 431. It does not seem necessary to state the name of the game. — Archbold, 922. See R. vs. Bailey, 4 Cox, 390. OBTAINING STEAMER Oil RAILWAY PASSAGE BY FALSE TICKET. Sect. 98 — Whosoever by means of any false ticket or order, or of any other ticket or order, fraudulently and unlawfully obtains or attempts to obtain any passage on any railway, or in any steam, or other vessel, is guilty of a misdemeanor, and shall be liable to be imprisoned in any common gaol or house of correction, with or with- out hard labour, for any period not exceeding six months. This clause is not in the English Act. See post, sect. 122, as to fine and sureties for the peace in misdemeanors under this Act. The clause provides for the offence and the attempt to commit the offence .... Under sect. 49 of the Pro- cedure Act of 1869, upon the trial of an indictment for any offence against this clause, not including the attempt provided for thereby, the jury may convict of the attempt to commit the ofience charged, if the evidence warrants it. CONVICTION OF OBTAINING BY FALSE PRETENCES, ON IN- DICTMENT FOR LARCENY. Sect. 99. — If upon the trial of any persan for larceny, it appears that the property taken was obtained by such person by fraud under circumstances which do not amount to such taking as constitutes larceny, such per- son shall not by reason thereof be entitled to be acquitted, but the jury may return as their verdict, that such per- son is not guilty of larceny, but is guilty of obtaining such property by false pretences, with intent to defraud, if the evidence prove such to have been the case, and thereupon such person shall be piiniahed in the same LARCENY ACT. 607 manner as if he had been convicted upon an indictment for obtaining property under false pretences, and no person so tried for larceny as aforesaid shall be after- wards prosecuted for obtaining property by false pretences upon the same facts. This very important clause is not in the English Act. It was in the 14-15 Vict., ch. 100, as the bill was introduced, but was struck out. See observations upon it, under sect. 93, ante. In Reg. vs. Adams, 1 Den. 38, the judges held the conviction wrong, because the indictment was for larceny, and the facts established an obtaining by false pretences ; now, under the above clause, the jury, in such a case, may find the defendant guilty of the obtaining by false pretences. RECEIVING STOLEN GOODS. Sect. 100. — Whosoever receives any chattel, money, valuable security, or other property whatsoever, the stealing, taking, extorting, obtaining, embezzling, and otherwise disposing whereof amounts to a felony, either at common law or by virtue of this Act, knowing the same to have been feloniously stolen, taken, extorted, obtained, embezzled or disposed of, is guilty of felony, and may be indicted and convicted either as an accessory after the fact or for a substantive felony, and in the latter case whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice ; and every such receiver, howsoever convicted, shall be liable to be imprisoned in the Peni- tentiary for any term not exceeding fourteen years and not less than two years, or to be imprisoned in any gaol or place of confinement for any term less than two years, with or without hard labour, and with or without soli- tary confinement ; provided that no person, howsoever triSvt tor receiving as aforesaid, shall be liable to be pro- ^i m> 608 THE CRIMINAL STATUTE LAW. «ecute(l a second time for the same offence. — 24-2-5 Vict., cli. 9G, sect. 91, Imp. This clause applies to all cases where property has been feloniously extorted, obtained, embezzled, or other- wise disposed of, within the meaning of any section of this Act. — Greaves, Consol. Acts, 179. Sect. 101. — In any indictment containing a charge of feloniously stealing any property, it shall be lawful to add a count or several counts for feloniously receiving the same, or any part or parts thereof, knowing the same to have been stolen ; and in any indictment for feloniously receiving any property, knowing it to have been stolen, it shall be lawful to add a count for felon- iously stealing the same; and where any such indictment iius been preferred and found against any person, the prosecutor shall not be put to his election, but it shall be lawful for the jury who try the same to find a verdict of guilty, either of stealing the property, or of receiving the same, or any part or parts thereof, knowing the same to have been stolen ; and if such indictment has been preferred and found against two or more persons, it shall be lawful for the jury who try the same to find all or any of the said persons guilty either of stealing the property or receiving the same, or any part or parts thereof, knowing the same to have been stolen, or to find one or more of the said persons guilty of stealing the property, and the other or others of them guilty of receiving the same, or any part or parts thereof, knowing the same to have been stolen. — 24-25 Vict., ch. 96, sect. 92, Imp. The v/ords " containing a charge of" are substituted far the word " for" in the former. Act, in order that a count for receiving may be added iu aw?/ indictment con- teirjng a chaige of stealing any propei-ty. It will there- LARCENY ACT. 609 ! 1 fore apply to burglary with stealing, housebreaking, rob- bery, &c., &c., &c. It is also provided, by this clause, for cases which frequently occur, and were not within the former clause ; where different prisoners may be proved to have had possession of different parts of the stolen property. — Greaves, Consol. Acts, 180. Sect. 102. — Whenever any property whatsoever has been stolen, taken, extorted, obtained, embezzled, or otherwise disposed of in any such a manner as to amount to a felony, either at common law, or by virtue of this Act, any number of receivers at different times of such property, or of any part or parts thereof, may be charged with substantive felonies in the same indictment, and may be tried together, notwithstanding that the principal felon shall not be included in the same indictment, or shall not be in custody or amenable to justice. — 24-25 Vict., ch. 96, sect. 93, Imp. See sect. 7, of 31 Vict., ch. 72, an Act respecting acces- sories to and abettors of indictable offences. (1868.) Sect. 103.— If, upon the trial of two or more persons indicted for jointly receiving any property, it is proved that one or more of such persons separately received any part or parts of such property, it shall be lawful for the jury to convict, upon such indictment, such of the said persons as are proved to have received any part or parts of such property.— 24-25 Vict., ch. 96, sect. 94, Imp. Sect. 104. — Whosoever receives any chattel, money, valuable security or other property whatsoever, the stealing, taking, obtaining, converting or disposing whereof is made a misdemeanor by this Act, knowing the same to have been unlawfully stolen, taken, obtained, converted or disposed of, is guilty of a misdemeanor, and may be indicted and convicted thereof, whether the per- son guilty of the principal misdemeanor has or has not ^#: 610 THE CRIMINAL STATUTE LAW. - KiS^SSffii ropriation of the whole property, and that the mere intent to deprive the owner of the teni^orary possession only is not suffi- cient to constitute the offence. For, although, under particular circumstances, a fraudulent privation of pop- session may justly be made penal, such an offence cannot, vdthout great inconvenience, be included with so general a predicament as that of theft. A law designed for the protection of the right of property would be far too gen- eral in its operation, were it to be extended to mere tem- porary privations of possession. In practice, this would be to injure, if not to destroy, the important boundary between the crime of theft and a mere civil trespass.' C24 THE CRIMINAL STATUTE LAW. And again, on page 5G : ' And although the intent b^ not to commit a collateral fraud, but to enjoy the tem- porary possession in fraud of another's right of possession, theotience cannot properly constitute a theft ; for this is an otlence, as we have already observed, against the right of property, as distinguished from the mere right of pos- session, and the Law of England does not, as the Roman law did, notice the furtum 2)osscs3ionis as constituting a branch of the law of theft. The offence properly consists in the unlawful appropriation of that which belongs to another, which cannot be where another has not the property, but only the right of temporary possession. A law might no doubt be made to comprehend mere wrongs to the temporary right of possession ; but the same principles of policy and convenience, which occa- sion the distribution of offences into defined classes, must also regulate the limits of each separate class of off*ences, and we have already observed that to extend the class of thefts to mere injuries to the possession, vi^ould be to extend its boundaries too widely, and render the limits between theft, and a mere trespass indistinct.' But, see Bishop, on Criminal Law, 2nd Edition, vol. 1, section 429: (section 579 of the fifth edition). 'Then we have ii very extensive infiuence exerted by the universal rule that the law does not regard small things. We have seen that in the application of this rule, the general, rather than the particular, consequence of the Act is to be re- garded. Therefore, although it is criminal to steal per- sonal property which is of some value, however small the value may be, yet it is not so for a trespasser to take and carry away such property, be the value great or small, with the intent of appropriating to himself, not the property itself, but its mere use, too small a thing, in respect of the general consequence, for the criminal LARCENY ACT, 625 law, not for the civil, to notice. But this rule of small ' tilings can be accurately understood only as we see it applied in the cases : for the decisions are not harmoni- ous with any general principle. There is no reason, in principle, why many things deemed too small for the law to notice, should not in fact be noticed by it j for instance, if a man converts to his own use, with a bad motive, a valuable thing, which he takes intending to return it after he has served his end, there is no reason of principle why he should not be as severely punished as he who converts the entire property in a piece of paper worth one mill.' It was upon reasoning similar to this of Mr. Bishop, that my father submitted section 110 to Sir John Macdonald, then Minister of Justice, who approved of it and the Act passed with it included " Certainly, Bishop's observations are entitled to great consideration, but it must be admitted, that, in practice the legislation contained in the clause in question, " des- troys the important boundary between the crime of theft and a mere civil trespass." — Crim. L. Comm. Report, loc. cit. And is it very clear, arj stated by Bishop, that the rule of the English criminal law, that possession or use of property is not the subject of larceny, is based on the maxim " de minimis non curat lex." Then Bishop says that, in principle^ a man unlawfully defraudino- another of the use or possession of a valuable thing, ought to be punishable, but does not go so far as to say, that, in practice, such a legislation would work well. And the English Commissioners, in a foot note to page 5G of their Report, cited ante, say : " It is worthy of remark, that the necessity of abandoning this principle of the Roman law has been felt in nations whose systems de- pend more immediately upon that law than our own, inasmncli as the doctrine of the furttm possessionis, as C26 THE CRIMINAL STATUTE LAW. well as the furttim nsus, has no place in an} of the modern German codes." Is the full extent of the Roman law, on the subject, to be now ( onsidered as forming part of our 'riminal law system ? " Furtum antcmjit, non solum quum quis inicr- cipiendi causd rem alienam amovet, srd gencraliter quwn quia alicnam rem invito domino contradat. Itaque, sive credi- tor pignore, sive is apud quern res dcposita est, cd re utatur ; sive is qui rem utcndam accepit, in aimm usum earn trans- ferat quam cujus gratid ci data est, furtum committat : veluti, si quis argenium v mdum acccperit quasi amiros ad coenam invitaturtiS) et id pcregre sectim tulcrit, aut quis cquum, gestandi causa commodatum sihi, hngiiis aliquo diixerit." Instit. lib. 4, tit. 1, par. 6. Would the defendants in R. vs. Phillips, 2 East. P. C. 662 ; Reg. vs. Holloway, 1 Den. 370 ; Reg. vs. Poole, Dears. & B. 345, Reg. vs. Kilham, 11 Cox, 561 , have been convicted under this clause ? And then, let it be noticed that the clause applies to real as well as to personal pro- perty. This enactment of doubtful merit in principle may certainly be said to be unexpected in a " larceny" Act : and the more so, when the preamble of this larceny Act reads " Whereas it is expedient to assimilate, amend and consolidate the Statute laiv relating to larceny a7id other similar offences." OFFENCES CONCERNING TIMBER FOUND ADRIFI. Sect. 111. — Whosoever wilfully and unlawfully conceals or appropriates any timber, mast, spars, saw-logs, or other description of lumber, which, having been adrift in any river or lake, is found so adrift in any such river or lake, or cast -ashore on the bank or beach of any such river or lake, or wilfully and unlawfully defaces or adds any mark or number, on any such article or thing, or LARCENY ACT, 627 makes any falae or couiiterftjir mark thereon, or refuses to deliver up to the j)roper owner thereof or to the per- son in chaise thereof on behalf ol such owner, any such article or thing, is guilty ot a misdemeanor jHinishable in likt lanner as simple larceny. Of course, this ('In use is not in the EngHsh Statute. If the facts warrant it, the defendant could be indicted for larceny, notwithstanding tiiis clause. As to the pun- ishment for tlu misdemeanor under this clause, see ante sect. 4, and^os^, sect. 122. No intent to defraud seems necessary, under this clause. It is only on timber, lo'^s &c., &c., &c., adri/t or cast on shore , that it is an offence by this aise, to deface or add any mark or number, or nuike any false or counterfeit mark. The offence of refus- ing to deliver up any such article or thing, applies also only to timber, logs, &c., &c., &c., adrift or cast on shore. The indictment, therefore, must aver these material elements of the oilence. BRINOINa INTO CANADA PKOPERTY STOLEN, EMBEZZLED OR UNLAWFULLY OBTAINED ELSEWHERE. Sect 112.— If any person brings into Canada, or hns in his possession therein, any property, stolen, embezzled, converted or obtained by frau il__A T^i- Sciences Corporation V 4^ :i7 rv a'' '^> '^'^",*. '^■^^ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (71«>) a72-4503 !^ 629 THE CRIMINAL STATUTE LAW. 1^- V' convicted in any district, county or place in Canada, into or in which he brings such property, or has it in posses- sion. This clause is not in the English Act. Under sect. 8, chap. 158, of the Revised Statutes of New Brunswick, it was held that, upon an indictment in New Brunswick, for a larceny committed in Maine, the goods stolen having been brought in New Brunswick, it was neces- sary to prove that the taking was larceny, according to the law o/iUfoine.— Clark's Crim. L. 317. This clause was as follows : When any person shall be feloniously hurt or injured at any place out of this Province, and shall die in this Province of such hurt or injury, or when any person shall steal any property out of this Province and shall bring the same within the Province, any such offence, whether committed by any person as principal or acces- sory before or after the fact, may be dealt with in the county in which such death may happen, or such pro- perty shall be brought.— Sect. 8, ch. 158, Revised Stat. New Bruns. The words "in such manner that the stealing, &c., &c., &c., would by the laws of Canada, be a felony or misdemeanor," in the present Act, sect. 112, ante, constitute a wide difference with this New Bruns- wick Act, and the case noticed by llr. Clarke would probably not now be followed. ItESTITUTION OF STOLEN PROPERTY. Sect. 113.— If any person, guilty of any such felony or misdemeanor as is mentioned in this Act, in steahng, taking, obtaining, extorting, embezzling, appropriating, converting or disposing of, or in knowingly receiving any chattel, money, valuable security, or other property whatsoever, is indicted for such offence, by or on behalf of the owner of the property, or his executor, or admin- LARCENY ACT. 629 strator, and convicted thereof, in such case the property shall be restored to the owner or his representative ; and in every case in this section aforesaid, the Court before whom any person is tried for any such felony or misde- meanor shall have power to award, from time to time, wnts of restitution for the said property or to order the restitution thereof in a summary manner, and the Court may also, if it see fit, award restitution of the property taken frcm the prosecutor, or any witness for the prosecu^ hon, by such felony or misdemeanor, although the person indicted is not convicted thereof, if the jury declare, as they may do, that such property hehngs to such prosecutor or witness, and that he was unlawfully deprived of it by such felony or misdemeanor; Provided that if it appear before any award or order made, that any valuable security has been bond fide paid or discharged by some person or body corporate liable to the payment thereof, or, being « negotiable instrument, has been bond fide taken or received by transfer or delivery, by some person or body corporate, for a just and valuable consideration, without any notice or without any reasonable cause to suspect that the same had by any felony or misdemeanor been stolen, taken, obtained, extorted, embezzled, converted or disposed of, m such case the Court shall not award or order the restitution of such security ; Provided also that nothing in this section contained shall apply to the case of any prosecution of any trustee, banker, merchant, attorney, factor broker, or other agent intrusted with the possesion of goods or documents of title to goods for any misdemeanor against this Act-2i-25 Vict ' ch. 96, sect, too, Imp. ^'' It is to be observed that the proviso as to trustees, bankers, &c., only excepts cases of misdemeanors from the operation of this section, and leaves all cases of felony m- G30 THE CRIMINAL STATUTE LAW. within it. — 2 Russell, 355. The words in italics are not in the English Act ; they were in the bill as passed in the House of Lords, but were struck out by the eolect Committee of the Commons. Greaves, Consul. Acts, 186. The prisoners were convicted of feloniously stealing certain property. The Judges who presided at the trial made an order directing that property found in the pos- session of one of the prisoners, not part of the property stolen, should be disposed of in a particular manner. Held, that the order was illegal, and that a judge has no power either by common law or by statute to diiect the disposal of chattels in the possession of a convicted felon, not belonging to the prosecutor.— Reg. vs. Pierce, Bell, 235. The case of Walkei- vs. Corporation of London, 11 Cox, 280, is of no application in Canada. In Reg. vs. StanclifFe, 11 Cox, 318, it was held that the present section applies to cases of false pretences as well as felony, and that the fact that the prisoner parted with the goods to a hond fide pawnee did not disentitle the original owner to the restitution of the goods.— See 2 Russell, 355. The Court is bound by the Statute to order restitution of property obtained by false pretences and the subject of the prosecution, in whose hands soever it is found : and so likewise of property received by a person knowing it to have been stolen or obtained by false pretences ; but the order is strictly limited to property identified at the trial as being the subject of the charge, therefore it does not extend to property in the possession of innocent third persons which was not produced and identified at the trial as being the subject of the indictment.- Reg. vs. Gold- smith, 12 Cox, 594. LARCENY ACT. 631 An order of restitution of property stolen will extend only to such property as is produced and identified in the course of the trial, and not to all the articles named in the indictment, unless so produced and identified and in the possession of the Court.— Reg. vs. Smith, 12 Cox. 697. ' It has been held, on this clause, in a recent case, in Montreal, (Reg. vs. Atkin, April, 1874,) that the court will not give an order for the restitution of stolen goods, where the owneiship is the subject of a dispute in the Civil Courts. Mr. Justice Ramsay's remarks in this case are as follows : '' In this case an application was made for the resti- tution of the goods to Cassils & Stimson, under the 32- 33 Vict., ch. 2\, sect. 113. In England, it seems, it is not usual to grant a a -it of restitution, R. vs. Macklin, 5 Cox, 216. It therefore only remains to be seen whether we should give a summary order. The difficulty in this case arises from the fact that the goods in question have been seized in the hands of the High-Constable by civil process of revendication. It is said on the part of the applicant that we have no discretion, and that we are bound to give the order. We are not of that opinion. ' Shall be restored to the owner' is only a waivin«r of the rights of the Crown. It does not decide any right between other parties. Scattergood vs. Sylvester, 19 L. J. Q. B. 447. Were it considered otherwise, should an enactment be beyond the jurisdiction of Parliament. It would be a matter of civil law. The other words, ' the Court shall have power to award,' are evidently permissive. It has been said that they are permissive in form because of the proviso of the section j but the . proviso is an absolute exception, and therefore, unless it 632 THE cniMIXAL STATUTE LAW. was intended to leave the granting of the order discre- tionary with the Court, it was not necessary to use the permissive form. Again, the Statute says, ' from time to time 5 ' this shows the intention of the Legislature to leave it discretionary when this order was to be given. I'he objection to granting the order now is not so much that it might affect the rights of third parties, but be- cause it would place our officer in an awkward position. He would be between two fires. On one hand he would have our order to make restitution : oji the other hand, he would be open to civil liabilities if he delivered up. It does not alter the question that the applicants say they won't press the delivery till the civil suit is decided. We are asked for an order, and we must see what it may lead to. Nor can we see any inconvenience in delaying to give the o der, for any Judge holding the Court might give it when the obstacle created by the seizure is removed." — IS Low. Can. Jur., p. 213. The case of Reg. vs. Macklin, cited supra, by Mr. Justice Ramsay is noticed by Greaves, in 2 Russell, 356. Sect. 114. — When any prisoner has been convicted either summarily or otherwise, of any larceny or other offence including the stealing or unla 'ully obtaining any property, and it appears to the Court, by evidence, that the prisoner sold such property or part of it to any person who had no knowledge that it was stolen or unlawfully obtained, and that money has been taken from the pri- soner on his apprehension, the Court may on the appli- cation of such purchaser and on restitution of the pro- ^ perty to its owner, order that out of the money so taken from the prisoner, a sum not exceeding the amount of LARCENY ACT, 633 the proceeds of the sale be delivered to such purchaser. — 30-31 Vict., ch. 35, sect. 9, Imp. The English Act does not, expressly, provide by the corresponding clause, for cases of obtaining by false pre- tences. The section provides for the sale only of the stolen property. Reg. vs. StanclifFe, 11 Cox, 318, supra, vsrould not be affected by it. TAKING A REWARD FOR HELPING TO THE RECOVERY OP STOLEN PROPERTY, ETC., ETC. Sect. 115. — Whosoever corruptly takes any money or reward, directly or indirectly, under pretence or upon account of helping any person to any chattel, money, valuable security or other property whatsoever, which by any f3lony or misdemeanor has been stolen, taken obtained, extorted, embezzled, converted, or disposed oO as in this Act before mentioned, unless he has used all due diligence to cause the offender to be brought to trial for the same, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for any term not exceed- ing seven years and not less than two years, or to be im- prisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour and with or without solitary confinement. — 24-25 Vict., ch. 96, sect. 101, Imp. As to the meaning of the w^ords " valuable security " and " property," see ante, sect. 1. As to sureties for the peace in felonies under this Act, see post, sect. 122. As to solitary confinement, see sect. 94 of the Procedure Act of 1869. Indictment. — The jurors for Our Lady the Queen upon their oath present that A. B. on feloniously, un- lawfully and corruptly did take and receive from one J. ^84 THE CRIMINAL STATUTE LAW. N. certain money and reward, to wit, the sum of five pounds of the monies of the said J. N. under pretence o* helping the said J. N. to certain goods and chattels of him the said J. N. before then feloniouly stolen, taken and carried away, the said A. B. not having used all due diligence to cause the person by whom the said goods and chattels were so stolen, taken and carried away as aforesaid, to be brought to trial for the same j against the form Archbold, 837. It was held to be an offence within the Repealed Sta- tute to take money under pretence of helping a man to goods stolen from him, though the prisoner had no ac- quaintance with the felon, and did not pretend that he had, and though he had no power to apprehend the felon, and though the goods were never restored, and the prisoner had no power to restore them. — R. vs. Ledbitter, 1 Mood. 76. The section of the Repealed Statute, under which this case was decided, was similar to the present section. —2 Russell, 575. If a person know the persons who have stolen any property, and receive a sum of money to purchase such property from the thieves, not meaning to bring them to justice, he is within the Statute, although the jury find that he did not mean to screen the thieves, or to share the money with them, and did not mean to assist the thieves in getting rid of the property by procuring the prosecutrix to buy it. — Reg. vs. Pascoe, 1 Den. 456. -' A person may be convicted of taking money on account of helping a person to a stolen horse, though the money be paid after the return of the horse ; Reg. vs. O'Don- nell, 7 Cox, 337. As to the meaning of the words " cor- ruptly takes," see Reg. vs. King, 1 Cox, 36. LARCENY ACT, 63!^ ADVERTISING A REWARD FOR THE RETURN OF STOLEN PROPERTY, ETC., ETC. Sect. 116. — Whosoever publicly advertises a reward for the return of any property whatsoever, which has been stolen or lost, and in such advertisement uses any words purporting that no questions will be asked, or makes use of any words, in any public advertisement purporting that a reward will be given or paid for any property which has been stolen or lost, without seizing or making any inquiry after the person producing such property, or promises or offers in any such public adver- tisement to return to any pawnbroker or other person, who may have bought or advanced money by way of any loan on any property stolen or lost, the money so paid or advanced, or any other sum of money for the re- turn of such property, or prints or publishes any such advertisement, shall forfeit the sum of two hundred and fifty dollars for any such offence to any person who will sue for the same by action of debt, to be recovered with full costs of suit.— 24-25 Vict., ch. 96, sect. 102, Imp. The Canadian Act is amended as follows by 35 Vict.,, ch. 35, sect. 3.— Every action against the printer or publisher of a news-paper to recover a forfeiture, under sect. 116 of the Larceny Act of 1869, shall be brought within six months after the forfeiture is incurred.— 33-34 Vict., ch. 65, sect. 3, Imp. {The English Act requires the authorisation of the law officers of the Crown.) 35 V. ch. 35, section 2.— In this Act the term " news- paper " means a newspaper as defined for the purposes of the Acts for the time being in force relating to the carriage of newspapers by post.— 33-34 Vict., ch. 65, sect. 2, Imp. c;}« TIIE oniMINAL HTATUTE LAW. APPREHENSION OF OFFENDERS, SEARCH WARRANT, ETC., ETC., ETC. Sect. 1 17. — Any person found conimittlng any offence punislmble cither upon indictment or upon summary con- viction by virtue of this Act, may be immediately appre- hended tvUhout tt warrant by any person, and forthwitii taken, together with the property, if any, on or with re- spect to wliich the offence is committed, before some neigh- bouring Justice of the Peace to be dealt with according to law ; and if any credible witness proves upon oath Ix'fore a .Justice of the Peace a reasonable cause to sus- pect that any person has in his possession or on his pre- mises any property whatsoever on or with respect to wiiich any offence, punishable either upon indictment or upon suuuuary conviction by virtue of this Act, has boon connnitted, tlie Justice may i^rant a warrant to search for such property as in the case of stolen goods; and any person to whom any property is offered to be sold, pawned or delivered, if he has reasonable cause to suspect that any such offence has been committed on oi with respect to such property, is hereby authorized, and, if in his power is required, to apprehend and forthwitii to take before a Justice of the Peace the party uiTering the same, together with such property to be dealt with according to law. — 24-25 Vict., ch. 96, sect. 103, Imp. See sections 2, 3, 4, 5 and G of the Procedure Act of 1869. Greaves had proposed an amendment to this clause, which, though rejected by the House of Qomraons in England, ought to have been inserted in our Statute. As it is, the following example given by Greaves shows the unsatisfactory state of the law. Any one who has obtained a drove of oxen or a flock of sheep by false pre- LABOENT ACT. C37 tencos, may go ((uietly on his way, uiul no one, not oven a peace oflicer, can apprehend him without a warrant ; but if a man ofier to sell any person a bit of u risoned only or to be imju-isoned and kctpt to hard labour, accordin*,' to the discretion of the Justice, for any term not exceeding two months, where the amount of the sum forfeited or of the penalty imposed, or of both as the case may be, together with the costs, does not exceed twenty-five dollars, and for any term not exceed- ing three months where the amount, with costs, exceeds twenty-five dollars : the cojnmitment to be determinable in each of the cases aforesaid upon payment of the amount and costs. — 24-25 Vict., ch. 90, sect. 107, Imp. 8'jct. 119. — Where any person is summarily convicted before a Justice of the Peace, of any offence against this 'Act, and it is a first conviction, the Justice may, if he so thinks fit, discharge the offender from his conviction, upon his making such satisfaction to the party aggrieved, for damages and costs, or either of them, as shall be ascertained by the Justice. — 24-25 Vict., ch. 96, sect. 108, Imp. m 638 THE CRIMINAL STATUTE LAW. Sect. 120. — Tn case any person convicted of any offence punishable upon sununary conviction, by virtue of this Act, has paid the sum adjudged to be paid, toge- ther with costs, under such conviction, or has received a remission thereof from the Crown, or has suffered tho imprisonment awarded for non-payment tliereof, or tho imprisonment adjudged in the first instance, or hau been so discharged from his first conviction by any Justice m aforesaid, in every such case, he shall be released from all further or other proceedings for the same cause. — 2i- 25 Vict., ch. 96, sect. 109, Imp. See post, sect. 123, on summary proceedings under thi* Act. VENUE IN CERTAIN CASES. — PUNISHMENT. &C., &C. Sect. 121. — If any person has in his possession in any one part of Canada, any chattel, money, valuable security or other property whatsoever, which ho has stolen or otherwise feloniously or unlatv/idhj taken or obtained, hj any offence agminst this Act, m M\y other part of Canada, he may be dealt with, indicted, tried and punished for larceny or theft in that part of Canada where he so has such property, in the same manner as if he had actually stolen, or taken or obtained \t in that part ; and if any per- son in any one part of Canada receives or has any chattel, money, valuable security or other property whatsoever which has been stolen, or otherwise feloniously ortinhm- fully taken or obtained in any other part of Canada, such person knowing such property to have been stolen or otherwise feloniously or imlawfidly taken or obtained, he may be dealt with, indicted, tried and punished for such offence in that part of Canada where he so receives or has such property, in the same manner as if it had been origin- larckny act. 639 ally stolen, or tukoii, or obtained in tlint part. — 24-25 Vict., di. yo, sfict. 1 U, Imp. The words ill italics aro not in tlie English Act. To complcto the change and udditionul cflect of these words, the words " or for so unlawfully having taken or obtain- od such chattel, «fcc., «fcc," should be inserted after the words '' and punished for larceny or theft." As the flttuse reads, it gives power to indict, try and punish for larceny or theft a person guilty of obtaining under false pretences ! Sect. 122. — Whenever any person is convicted of any indictable misdemeanor punishable under this Act, the Court may, if it thinks fit, in addition to, or in lieu of any of the punishments by this Act authorized, ^'le the oflender, and re(piire him to enter into his own recogni- zances and to find sureties, both or either, for keeping the peace and being ot good behaviour; and in case of any felony punishable under this Act, the Court may, if it thinks fit, require the offender to enter into his own recog- nizances, and to find^sureties, both or either, for keep- ing the peace, in addition to any punishment by this Act authorized ; Provided that no person shall, under this section, be imprisoned for any period exceeding one year for not finding sureties.— 24-25 Vict, ch. 9G, sect. 117, Imp. See remarks under sect. 74, of the Act concerning ma- licious injuries to property, 32-33 Vict., ch. 22. Sect. 12P.— Every offence hereby made punishable on summary conviction may be prosecuted, in the manner directed by the Act of the present session, intituled : An Act respecting the duties of Justices of the Peace out of ^Ses- sions, in relation to summary cmivictions and orders, so far as no other provision is hereby made for any matter or 640 THE CRmiNAL STATUTE LAW. thing which may be required to be done in the cause (course) of such prosecution ; and all provisions contained in the said Act shall be applicable to such prosecution in the same manner as if they were incorporated in this Act. The Act referred to is the 32-33 Vict., ch. 31. Sect. 124. — This Act shall commence and take effect on the first day of January, one thousand eight hundred and seventy. AN ACT FOR THE AVOIDANCE OF DOUBTS RESPECTING LARCENY OF STAMPS. 35 Vict., chap. 33. For the avoidance of doubts under the Act passed in the Session held in the tji:rty-second and thirty-third years of Her Majesty's reign and intituled " An Act res- pecting larceuj and other similar offences," and '' the Post-Office Act,, 18G7," Her Majesty, by and with the ad- vice and consent of the Senate and House of Commons of Canada, enacts as follows : — 1. Every postal card, postage stamp and every other stamp issued or prepared for issue by the authority of the ParUament of Canada or of the Legislature of any Pro- vince in Canada, for the payment of any rate or duty on bills of exchange, or promissory notes, or law proceed- ings, or of any rate or duty whatever, and whether still in the posssession of tlie Crown, or of any ^yerson or cor- poration of (or) any officer or agent of the Government of Canada or of the Province by the authority of the Le- gislature whereof it was issued or prepared for issue, shall be held to be a chattel and " property" within the mean- ing of tho Acts cited in the Preamble to this Act, and of LARCENY ACT* 641 the enactments and provisions thereof, and to be equal in value to the amount of the postage, rate or duty which can be paid by it, and is expressed on its face in words or figures, or both ; and in any indictment or proceeding for larceny, or any other offence against either of the said acts, in respect of anysuch stamp, the property thereof may be laid in the person in whose possession, as the owner thereof, it was, when the larceny or offence was committed, or in the Crown, if it was then unissued or in the posses- sion of any officer or agent of the Government of the Do- minion, or of the Province by the authority of the Legis- lature whereof it was issued or prepared for issue. 2. — Nothing in this Act shall be construed as intending that such stamps as aforesaid were not, without this act, chattel property and subjects of larceny at common law, and under the Acts cited in the Preamble. AN ACT RESPECTING MALICIOUS IN- JURIES TO PROPERTY. 32-33 Vict. chap. 22. Whereas it is expedient to assimilate, amend and con- solidate the Statute Law of the several Provinces of Quebec, Ontario, Nova Scotia and New Brunswick, relating to malicious injuries to property, and to extend the same as so consolidated to all Canada : Therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as fol- lows. SETTING FIRE TO A CHURCH OR CHAPEL, ETC., ETC. Sect. 1.— -Whosoever unlawfully and maliciously sets fire to any church, chapel, meeting-house, or other place €42 THE CRIMINAL STATUTE LAW. of divine worship, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any tenn less than two years, with or without hard labour, and with or without solitary confinement. — 24-25 Vict., ch. 97, s. 1, Imp. As to sureties for the peace, see sect. 74, post. As to solitary confinement, see 32-33 Vict., ch. 29, s. 94, Procedure Act of 1S09. Indictment— The jurors for Our Lady the Queen, upon their oath present that J. S. on the in the year feloniously, unlawfully and maliciously did set fire to a certain church, situate at in the parish of in the district of ogainst the form of the Statute in such case made and provided, and against the peace of Our Lady the Queen, her crown and dignity. Though it is not necessary to prove malice against the owner, yet the indictment must allege the act to have been done " unlawfully and maliciously." If a Statute makes it criminal to do an act unlawfully and malicious- ly, an indictment must state it to have been done so : stating that it was done feloniously ; voluntarily and mali- ciously is not enough. — 1 Mood. 239, Rex. vs. Turner ; 2 Russel, 1062, R. vs. Lewis. The definition of arson at common law is as follows : Arson is the malicious and wilful burning the house of another, and to constitute the offence there must be an actual burning of some part of the house, though it is LAUCBNY ACT. C43 not necessary that any flames should appear. —3 Burn's Just. 768. But now the words of the Statute are set fire to, merely ; and, therefore it is not necessary in an indictment to aver that the house was burnt, nor need it be proved that the house was actually consumed. But within the Statute, as well as at common law, there must be an actual burning of some part of the house ; a bare intent or attempt to do it is not sufficient. But the burning or consuming of any part of the house, however trifling, is sufticient, although the fire be afterwards ex- tinguished. Where on an indictment it was proved that the floor of a room was scorched : that it was charred in a trifling way : that it had been at a red heat but not in a blaze, this was held a sufficient burning to support the indictment. But where a small faggot having been set on fire on the boarded floor of a room, the boards were thereby scorched black but not burnt, and no part of the wood was consumed, this was held not sufficient. — Archbold, 509. The time stated in tlie indictment need not be proved as laid : if the ofl^ence be proved to have been committed at any time before o*- after, provided it be some day be- fore the finding of the indictment by the grand jury, it is sufficient. Where the indictment alleged the offence to have been committed in the night time and it was proved to have been committed in the day time, the judges held the difference to be immaterial. The parish is material, for it is stated as part of the description of the house burnt. Wherefore, if the house be proved to be situate in ano- ther parish, the defendant must be acquitted, unless the variance be amended. If a man intending to commit a felony, by accident set fire to another's house, this, it should seem, would be arson. If intending to set fire to the house of A. he accidentally set fire to that of B,, it k QQ 644 THE CKIMINAL STATUTE LAW w m felony. Even if a man by wilfully setting fire to his own- house, burns also the house of one of his neighbour, it will be felony : for the law in such a case implies malice, particularly if the party's house were so situate that the probable consequence of its taking fire was that the fire would communicate to the houses in its neighbourhood. And generally, if the act be proved to have been done wilfully, it may be inferred to have been done maliciously, unless the contrary be proved. — Archbold, 508. It is seldom that thp wilful buining by the defendant can be made out by direct proof: the jury, in general, have to adjudicate on circumstantial evidence. Where a house was robbed and burnt, the defendant's being found in possession of some of the goods which were in the house at the time it was burn^ was admitted as evidence tending to prove him'guilty a tne arson. So where the question is w hether the burning was accidental or wilful, evidence is admissible to show that on another occasion, the defendant was in such a situation as to render it pro- bable that he was then engaged in the commission of the like offence against the same property. But on a charge of arson, where the question was as to the identity of the prisoner, evidence that a few days previous to the fire in question, another building of the prosecutor's was on fire and that the prisoner was then standing by with a de- meanour which showed indifference or gratification, was rejected. — Archbold, 509. Upon an indictment for any offence mentioned in this chapter (except the attempts specially provided for as such) the jury may, u^der s. 49, 32-33 Vict., ch. 29, (Procedure Act, 1869) convict the prisoner of an attempt to commit the same, and thereupon he may be punished in the same manner as if he had been convicted on aa indictment for such attempt, 2 Russell, 1054. LARCENY ACT. 645 SETTING FIRE TO A DWELLING-HOUSE, ANY PERSON BEING THEREIN. Sect- 2. — Whosoever unlawfully and maliciously sets fire to any dwelling-house, any person being therein, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary con. finement. — 24-25 Vict., ch. 97, s. 2, Imp. This offence was formerly punishable with death. As to solitary confinement, see Procedure Act of 186 9, sect. 94. As to requiring the offender to enter into a recognizance and give sureties for the peace, see sect. 74, post. As to verdict for an attempt to commit the offence charged upon an indictment for the offence, see Proce- dure Act, of 1869, sect. 49. Indictment. — . . . . feloniously, unlawfully and malici- ously did set fire to a certain dwelling-house of J. N. situate in the parish of in the district of. one. J. L. and M. his wife then, to wit, at the time of the committing of the felony aforesaid, being in the said, dwelling-house ; against the form In this section, no mention is made of the intent with which the act is done : and it seems it is not necessarv to show that the prisoner knew that any person was in the house. It must be shown that some one was in the house at the time the house caught fire ; and where a person was in a house at the time the prisoner set fire to an outhouse, but left the house before the fire reached it, it was held that the offence was not proved within this section.— Ft) jr. vs. Warren, 1 Cox, 68; Reg. vs. Fletcher^ 2 C. & K. 25. C46 THE CRIMINAL STATUTE LAW. iv Under the Repealed Statute, a common gaol was held to be a dwelling-house, Donnavan's case, 1 Leach, 09 ; but a mere lock-up whore persons are never detained more than a night or two was held not to be a house. —Reg. vs. Connor, 2 Cox, 05. A building intended for a dwelling-house but used as a place to deposit straw, etc., Is neither a house, out- house nor barn. — Elsmore vs. St. Briavels, SB. & C. 461. A dwelling-house must be one in which a person dwells, Reg. vs. Allison, 1 Cox, G4 ; but temporary absence ib not sufficient to take the building out ofthe protection of the statute.— Reg vs. Kiinbrey, Cox, 464. A building not intended for a dwelling-house, but slept in by some one without the leave of the owner, and a cellar under a cottage separately occupied, were held not to be houses.— Reg. vs. England, 1 C. & K. 533 j Anon. ] Lew. 8. What is understood by the housed This extends at common law not only to the very dwelling-house, but to all out-houses which are parcel thereof, though not adjoining thereto, nor under the same roof — 2 East P. C. 1020. SETTING FIRE TO A HOUSE, OUT-HOUSE, MANUFACTORY, FARM-BUILDING, ETC., ETC. Sect. 3. — Whosoever unlawfully and maliciously sets fire to any house, stable, coach-house, out-house, ware- house, office, shop, mill, malt-house, hop-oast, barn, storehoure, granary, hovel, shed or fold, or to any farm- building, or to 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 posses- sion ofthe offender, or in the possession of any other per- son, with the intent thereby to injure or defraud any per- son, is guilty of felony, andsliallbe liable to be imprison- LARCEiNY ACT. 647 ed in the Penitentiary for life, or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term (the word not struck, off, 35 Vict., cli. 34) less than two years, with or without hard labour, and with or without solitary confinement, — 24-25 Vict., ch. 97, s. 3, Imp. See sect. 74, post, as to requiring the offender to enter into a recognizance and to give sureties for the peace. See sect. 94, Procedure Act of 1869, as to solitary confinement, and sect. 49 of the same Act, as to verdict for an attempt to commit the offence charged, in certahi cases, upon an indictment for the offence. Indictment. — feloniously, unlawfully, and malici- ously did set fire to a certain dwelling-house of J. N. situate with intent thereby then to injure the . aid J. N., (or to defraud a certain insurance company called against the form A. was indicted for setting fire to an out-house. The building set on fire was a thatched pigsty, situate in a yard in the possession of the prosecutor, into which yard the back door of his house opened, and which yard was bounded by fences and by other buildings of the prose- cutor, and by a cottage and barn which were lent to him by a tenant, but which did not open into this yard : held, that this pigsty was an out-house within the Repealed Statute. — Reg. vs. Jones, 2 Mood. 308. A. was indicted for having set fire to a building twenty- four feet square, the sides of which were composed of wood with glass windows ; it was roofed and was used by a gentleman, who built houses on his own property, for the purpose of disposing of them, as a storehouse for seasoned timber, as a place of deposit for tools, and as a place where timber was prepared for use : held, that this 648 THE CRIMINAL STATUTE LAW. was a shed, and also an erection used in carrying on trade. — Reg. vs. Amos, 5 Cox, 222. Burning a stable is not supported by proof of burning a shed, which has been built for and used as a stable originally, but has latterly been used as a lumber shed only.^Keg. vs. Colley, 2 ^I. & Rob. 475. An unfinished structure intended to be used as a house is not a house within the meaning of this section. — Reg. vs. Edgell, 11 Cox, 132. An indictment under this section, for sotting fire to a house, shop, etc., etc., need not allege the ownership of tiie house. The evidence in support of the intent to injure was that the prisoner N. was under notice to quit, and a week before the fire was asked to leave but did not. Of the intentio defraud, the evidence was that in 1867 he called on an agent about effecting an insurance, and that in 1871, he called on him again, and said he had «ome to renciv his policy for i,%500, and paid ten shillings : Md, that the evidence was sufficient to prove the intent to injure the owner of the house, and the intent to defraud the insurance company : though the policy of insurance was not produced, there was sufficient evidence of it ^»y the defendant's imphed admission of its existence by saying he wished to renew his policy. — Reg. vs. New- boult, 12 Cox, 148. Malice against owner is unnecessary, see sect. G6, ijosf, and intent to injure or defraud any particular person need not be stated in the indictment, nor proved on the trial. In Harrington's case, R. vs. R. 207, no motive of ill- feeling whatsoever against the owner of the property burnt could be proved against the prisoner: he was proved tc be a harmless, inoffensive man •, but upon a case reserved it was held that an injury to the burnt building being the necessary consequence of setting fire t o LARCENY ACT. 649 it, the intent to injure might be inferred, for a man is sup- posed to intend the necessary consequence of his own act. Under the Statute, it is inynaterial whether tiio build- ing, house, (fee, &c., be that of a third person or of the defendant himself; but in the latter case, the intent to defraud cannot be inferred from the act itself, but it must be proved by other evidence. In Reg. vs. Kitson, Dears. 187, the prisoner was indicted for arson, in set- ting fire to his own house, with intent to defraud an insurance office. Notice to produce the policy was served too late on the defendant, and it was held that secon- dary evidence of the policy was not admissible. " But it must not, however, be understood, said Jervis, C. J., that it is absolutely necessary in all cases to produce the policy, but the intent to defraud alleged in the indict- ment must be proved by proper evidence." A married woman cannot be indicted for setting fire to the house of her husband with intent to injure him. — R. vs. March, 1 Mood. 182. But this decision would now be considered doubtful. See remarks under sects. 1 and 2, ante. SETTING FIRE TO ANY RAILWAY STATION, ETC., ETC., ETC. Sect. 4. — Whosoever unlawfully and maliciously sets fire to any station, engine-house, warehouse or other building, belonging or appertaining to any railway, port, dock or harbor, or to any canal or other navigation, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life, or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without soli- tary confinement,— 24-25 Vict., ch. 97, s. 4, Imp. 6M TIIE CRIMINAL STATUTE LAW. i - As to verdict for an attempt to cominit the offence charged in certain cases, solitary confinement and requir- ing the offender to give sureties, as under sects. 1 and 2, ante. Indictment, as under sect. J , need not allege with intent to injure or defraud. As to destroying or injuring by fire or otherwise any custom-house, or any building whatsoever in which seized, forfeited or bonded goods are deposited, see 31 Vict, ell. G, sect. 97, an Act respcefinythc customs. SETTING FIRE TO THE QUEEN's DOCK YAKD8, SHIPS, ETC., ETC., ETC. Sect 5. — Whosoever unlawfully and maliciously sets on fire or burns, or otherwise destroys or causes to be set on fire or burnt, or otherwise destroyed, or aids, procures, abets, or assists, in the setting on fire or burning, or otherwise destroying, of 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 buildmg or repairing by contract in any private yard for the use of Her Majesty's arsenals, magazines, dock-yards, rope yards, victualling offices, or any of the buildings erected therein or belonging thereto, or any timber or material there placed, for building, repairing or fitting out of ships or vessels, or any of Her Majesty's military, naval, or victualling stores, or other ammunition of war, or any place or places where any such military, naval or victualling stores, or other ammunition of war are kept, placed or deposited, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life, or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement. I IRCENY ACT. 66)1 This clause is taken from 12 Geo. J, cli. 84, sect. J Imp. SETTING FIRE TO ANY PUBLIC UL'ILDINO, Sect. O.—Whosoever unlawfully and maliciously sets fire to any building, other *'ian such as are in tiiis Act before mentioned, belonging to the Queen, or tu any county, riding, division, city, town, village, parish or place, or belonging to any university or college or iiallof any university, or to any corporation, or to any luiincor- porated body or society of persons, associated together for any lawful purpose, or devoted or dedicated to pub- lic use or ornament, or erected or maintained by public subscription or contribution, is guilty of felony, and shall be liable to bo imprisoned in the Penitentiary for life, or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement.— 24-2-5 Vict., ch. 97, s. 5, Imp. Greaves says " This clause is new, and an extremely great amendment of the law. Before this Act passed, there was no Statute apphcaule to the burning of any public building, however important, unless it could be held to fall within the terra " house." It would be easy to point out such buildings, the burning of which would have been looked upon as a national calamity. This section therefore has been introduced to protect all such buildings, as well as all the others specified in it," SETTING FIRE TO OTHER BUILDINGS. Sect. 7. — Whosoever unlawfully and maliciously sets fire to any building other than such as are in this Act before mentioned, is guilty of felony, and shall be liable 682 THE ORIMtNAL STATUTE I-AW. .U to bo imprisoiHul in tlio I\M)itciitiary for any torm not exceeding fourteen years, aiui not leas than two years, or to bo imprisoned in any other gaol or place of c{ nfme- ment for atiy term less than two years, with or without hard labour, and with or withotit solitary conlinenicnt. — 2i''J-'i Vict., eh. 97, s. (>, Imp. (} reaves says, "This clause is new. It will include every buildinu; not falling within any of the previous sections of the Act It will include ornamental l)uihl- ings in parks and pleasure grounds, hot houses, pineries, and idl those buildings which not being within tie cur- tilage of a dwelling-house, aiul not falling within any term previously mentioiuMl, were unprotected before this Act passed, /riie term 'building' is no doubt very indelinite. . . . but it was thought much better to adopt; Umu, and leave it to be interpreted as each case niight arise, thnn to attempt to deline it, as aiy such attempt would probubly have failed in producing any expression more certain than the term ' building' itself." In Keg. vs. Edgell, 11 Cox, 132, it was doubted whe- ther an unlinished structure intended to be used as a house was a bitililinrj within this section. The point was not determined. But in Reg. vs. IManning, 12 Cox, lOO, upon a case resen-ed, it was held that an unfinished dwelling-house of which ths external and internal walls were built, and the roof covered in, and a con8idern1>le part of the flooring laid, and the walls and ceilings pre]>aiecl for plastering, is a building, within this section iVi thi- case, Luuh, J., presiding the trial, left it to the jury whether as a question of fact, the erection was a building, and the Court of Crown cases reserved seemed to be of opinion •that this had been correctly done. — No intent to injure ,.a LARCKNY ACT. 051 or defraud uei'd l)t> alleged in an iiidictineiit under this section. SKTTINO I'lUK TO OOOOS IN ANY lUJIMUNd, TIIK SKTTINO Fiiti-: OF wHK'ii woirr-i) hk tklonv. Sect. b. — Whosoever uiduvvfully uud maliciously sets fire t(» uiiy inattt!!- or thing, being in, against or under any building, und(!r such circunistances that if tlie build- ing were thereby set lire to, theotlence would amount to felony, is guilty of felony, and shall be liable to be im- prisoned in the Penitentiary for any term not exceeding tburteen years, and not h.'ss than two years, or to be im- prisoned in any other gaol or j)lace of confinenuint for any term less than two years, with or without hard labour and with or without solitary confinement. — 24-25 Vict., ch. 97, sect. 7, Imp. Greaves says : The terms " under such circumstances that if the building were thereby set fir*; to the olfence wouhl amoun'; to lehuiy " were advisably substituted instead of the terms used (/x/o/t). .in consequence of the case of Keg. vh. Lyons, 1 J3ell, ;JS. Some of the enact- ments as to setting lire to buildings, ships, &c., &c., &c., make an intent to injure or defraud necessary, but others do not ; and the terms in question were adopted in order to include })oth categories; so that if goods are set fire to in a building where an intent to injure or defraud is necessary to constitute tiie ottence of the setting lire to such building (as in- tiie cases included in sect. 3) the case will fall within this clause ; as well as where no intent is necessary to constitute the otlence of setting fire to the building in which the goods are set fire to (as in the cases included in sects. 4, 5, G, 7). An indictment under this clause where no intent is necessary to constitute the oflence of setting fire to the building in which the (554 "HE CRIMINAL STATUTE ACT. ■4% if goods are sot fire to, it will bo suHicient to allogo the setting fii-c t«; the goods in tliat building : but where an intent to injure or detVoud is necessary to constitute the oflenco of setting fire to the building, it would seem necessary to allege in addition an intent to injure or defraud as the case may be ; and the eviM IN I'KOCKSS OK MANIFACTIHK, OR CKKTAIN MAC'IIINKUY, ttc, &C., «&C. Sect. 18. — Whosoever unliiwrully and iniilieiously cuts» hreuks, or destroys, or danniges with intent to destroy or to render useUiss any goods or artieUs of silk, vvooHen, linen, cotton, hair, mohuir or alpaca, or 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, being in the loom or frame, or on any machine or engine, or on tluj rack or tenters, or in nny stage, process or progress of maimfacture, or un- lawfully and, maliciously cuts, breaks, or destroys, or damages with intent to destroy or render nseless any warpor shuteof silk, woollen, linen, cotton, hair, mohair, or alpaca, or of any oiic or more of those materials mixed with each other or mixed with any other material, or nnlawfully and maliciously cuts, breaks or destroys or damages with intent to destroy or render useless, any loom, frame, machine, engine, rack, tackle, tool or im- plement, whether lixed or moveabh;, prepared lor or employed in carding, spinning, throwing, weaving, full- ing, shearing, or otherwise manufacturing or preparing any such goods or articles, or by force enters into any house, shop, building or place, with intent to commit any of the ollences in this section mentioned, is guilty of felony, and shall bo liable to be imprisoned in the Peni- teiitiary for life or for any term not less than two years, or to be imprisoned in any other gaol or place of con- finement for any term less than two years, with or with- out hard labour, and with or without solitary conline nient.— 24-25 Vict., cli. 97, s. 14, Imp. MAtilr|(»IItl INJtflUKM TO I'llOI'KKTV. 007 Sturt. JO. — Wli(»H<)(!v«'r niiliivvfnlly mid inalicioUHly .m\h, hronkHordrslroyN, ordanmm'Hvvithiiitt'iit lodoMtroy or icii- dt'i' iiHi'h'MM, any iiincliiiK' or (j goods in the loom. — twenty- five yards of woollen cloth of the goods and chattels of J. N. in a certain loom tiien being, feloniously, unlaw- fully and maliciously did cut and destroy, against the fonn Indictment for hreaVmg ivarp of silk. — a certain warp of silk, of the goods and chattels of J.N., feloniously maliciously and unlawfully did cut and destroy, against the form .... Indictment for entering hg force into a house ivith intent to cut or destrog woollen goods.— into a certain house of J. N. situate feloniously and by force did enter, with intent certain woollen goods of the said J. N. in a certain loom then and there being, feloniously, unlawfully and maliciously to cut and destroy, against the form .... •>i.i MALICIOUS IN.JUUIES TO PUOPKHTY. G6D Indictment for dcstroylnn a thrashing machine.— ... - a cortuii. tlini8liing machine^ the property of J. N., lolo- iiiously, unlawfully and iiiuliciously 27, 5-21). SETTING I' IRE TO CHOI'S, STACKS, &C., &C., &C. Sect. 20.— Whosoever unlawfully and maliciously sets lire to any crop of hay, grass, cor.i, grain, or pulse;, or of any cultivated vegetable produce, whether standing or cut down, or to any part of any wood, coppice or planta- tion of trees, or to any heath, gorse, i'ur/e or fern, wheresoever the same may be growing, is guilty of felony, and shall be liable to be imprisoned in tlie Penitentiary for any term not exceeding iourteen \ „ years, and not less than two years, or to be imprisoned m any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement— ^4-25 Vict., ch. 07, s. JG, Imp. , , Sect. 21.— Whosoever unlawfully and maliciously sets fire to 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 to any steer or pile of wood or bark, is cruilty of felony, and shall be liable to be imprisoned m y the Penitentiary for life, or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour and with or without solitaiy con- finement.— 24-25 Vict., ch. 97, s. 17, Imp. Sect. 22.— Whosoever unlawfully and maliciously, by any overt act, attempts to set fire to any such matter or thing, as in either of the hist two preceding sections mentioned, under such circumstances that if the same €70 THE CUIAIINAL STATUTE LAAV. < were thereby set fire to the offender wonkl be, under either of such sections, guilty of felony, is guilty of felony, and shall be liable to be imprisoned in the Peni- tentiary for any term not exceeding seven years, and not less than two years, or to ba imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement.— 24-25 Vict., ch. 97, s. 18, Imp. As to requiring the offender to enter into recogni- zances, and find sureties for keeping the peace, see sect. 74, iwst As to sohtary confinement, see sect. 94, Proce- dure Act of 1869. Indictment for setting fire to a stacJc of ivheat.— feloniously, unlawfully and Jtialiciously did set fire to a certain stack of wheat, of J. N., against the form Where the word imlawftilhj was omitted, the judges held the indictment to be bad.— R. vs. Turner, 1 Mood. 239.— No intent need be stated. Archbold, 519; R. vs. Newill, 1 Mood 4-58 ; R. vs. Woodward, 1 Mood. 323. Prove that the defendant wilfully set fire to the stack of wheat, as stated in the indictment, and prove the ownership of the property. An indictment for setting fire to a stack of beans, R. vs. Woodward, 1 Mood! 323, or barley, R. vs. Swatkins, 4 C. & P. 548, is good ; for tlie Court will take notice that beans are pulse, and barley, corn.— A stack composed of the flax-plant with the seed or grain in it, the jury finding that the flax-seed is a grain, was held to be a stack of grain.— R. vs. Spencer, Dears. & B. 131.— The prisoner was indicted for setting fire to a stack of wood, and it appeared that the wood set fire to consisted of a score of faggots heaped on each other in a temporary loft over the gateway, held, this not to be a stack of wood.— R. vs. Aris, 6 C. & P. 348.— Where the defendant set fire to a summer- MALICIOUS INJUr-irj TO moVER'TY. 67l rtmw, packed on a lory, !„;„„;«■ 'V '"'"'*''^ "^ m any plantation of hor)s m- L,, n. ° ^^^^^ .mpnsoned in the Penitentiary for a ' te " not ev ]"> fourteen year., and not less tlan two yersor to T ' The words in /M,-,,aro not in the English Act see sect. 49, Procedure Act of isel '"'"™' Indictment. — nno fi,«„ i i ' , pertv of T M fi thousand hop-binds, the pro- t'^.«:r:fii:;r3» .* ;. » ee-in ,i„. unlawfully and maliciously did c t nd d^* """"'^' '"efor,., Archbold%48 *"^' '«'""' '•iim'i €72 THE CRIMINAL BTATtTTE LAW. Mi p / <; Prove that the defendant cut or otherwise destroyed the hop-binds, or some part of them, as alleged: that they were at the time growing in a plantation of hops situate as described, belonging to J. N. Prove ako that the act was done maliciously, that is to say, wilfully, and without the beUef of a supposed right.— Archbold, loc. cit. DESTROYING TREES, ETC, ETC., ETC. Sect. 24.— Whosoever unlawfully and maliciously cuts, breaks,' barks, roots up or otherwise destroys or damages the whole or any part of any tree, sapling or shrub, or my underwood growing in any park, pl*>asure ground, garden, orchard or avenue, or in anygiound adjoining or belonging to any dwelling-house, in case the amount of the injury done exceeds the sum of five dollars, is guilty of felony, and shall be liable to be imprisoned m the Penitentiary for any term not exceeding three years, and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement.-24-25 Vict., ch. 97, sect. 20, Imp. V • 1 Sect. 25.— Whosoever unlawfully and maliciously cuts, breaks, barks, roots up or otherwise destroys or damages the whole or any part of any tree, saphng or shrub, or any underwood growing in any pubhc street, or place, or elsewhere than in any park, pleasure-ground, garden, orchard or avenue, or in any ground adjoinmg or belonging to any •dweUing-house, in case the amount of injury done exceeds the sum of twenty dollars, is guilty of felony, and shall be liable to be imprisoned in the Peni- tentiary for any term not exceeding three years and not less than two years, or to be imprisoned in any other MALICIOUS INJURIES TO PllOPERTV, G73 gaol or place of confinement for any term less than two years, with or wirhout hard labour, and with or without solitary confinement.— 24-25 Vict., ch. 97, sect. 21, Imp. Indictment under sect. 24. — two elm trees the property of J. N.; then growing in a certain park, of the said J. N. situate in feloniously, unlawfully and maliciously did cut and damage, thereby then doing injury to the said J. N. to an amount exceeding the sum of five dollars, to wit, the amount often dollars, against the form A count may be added for cutting witii intent to steal the trees, under sect. ?! of the Larceny Act. — Archbold, 549. Indictment under sect. 25.— ten elm trees; the property of J. N., then growing in a certain close of the said J. N. situate feloniously, unlawfully and maliciously did cut and damage, thereby then doing injury to the said J. N. to an amount exceeding the sum of twenty dollars, to wit, the sum of twenty-five dollars, against the form Add a count, under sect. 21 of the Larceny Act. As to requiring the offender to enter into recognizances and find sureties for keeping the peace, see post, sect. 74. As to solitary confinement, see sect. 94, Procedure Act of 18G9 ; and sect. 49, of the same Act, as to a verdict for an attempt to commit the offence charged upon an indictment for the offence, in certain cases. A variance in the number of trees is not material. It must be proved, under secti 24, that the tree was grow- ing in a park, and tha damage done to exceed five dollars. Under sect. 25, the damage must exceed twenty dol- lars, and the trees growing elsewhere than in a park.. The amount of injury done means the actual injury done G74 THE CRIMINAL STATUTE LAW. \ to the trees, by the defendant's act : it is not sufficient to bring the case within the Statute, that, although the amount of such actual injury is less than twenty dollars, the amount of consequential damage would exceed twenty dollars. — R. vs. Whiteman, Dears. 353. An indictment under these sections is defective, if it does not allege the act to have be " " :'t: imlawfully and maliciously, and it is not sufficien, .ate that it was done feloniously. — Reg. vs. Lewis, z Russell, 1067- DAMAGING TREES TO THE AMOUNT OF TWENTY-FIVE CENTS. SECOND OFFENCE. THIRD OFFENCE. Sect. 26. — Whosoever unlawfully and maliciously cuts, breaks, barks, roots up or otherwise destroys or damages the whole or any part of any tree, sapling or shrub, or any underwood, wheresoever the same may be growing, the injury done being to the amount of twenty-five cents at the least, shall, on conviction thereof before any Jus- tice of the Peace, at the discretion of the Justice, either be committed to the common gaol or house of correction, there to be imprisoned only or to be imprisoned and kept to hard labour for any term not exceeding one month, or else shall forfeit and pay, over and above the amount of the injury done, such '^um of money not exceeding five dol- lars as to the Justice seems meet, and whosoever having been convicted of any such offence, either against this or any former Act or Law, afterwards commits any of the said offences in this section before mentioned, and is convicted thereof in like manner, shall for such second offence, be hable to be committed to the common gaol or other place of confinement, there to be kept at hard labour for such term, not exceeding three months, as the convicting Justice thinks fit, or else shall forfeit and pay, over and above the amount of the injury done, such sum MALICIOUS INJURIES TO PROPERTY. 675 of money, not exceeding twenty dollars, as to the Justice seems meet, and whosoever having been twice convicted of any such offence, whether both or either of such con- victions have taken ^place before or after the passing of this Act, afterwards commits any of the said offences in this section before mentioned, is guilty of a misdemeanor and shall be liable to be imprisoned in any gaol or place of confinement other than a Penitentiary, for any term less than two years, with or without hard labour, and with or without solitary confinement. — 24-25 Vict., ch 97, s. 22, Imp. As to summary convictions under this Act, seepost, sect. 75,— and sect. 74, as to fine and sureties in misdemeanors at the discretion of the Court. As to solitary confine- ment, see sect. 94, Procedure Act of 18G9. If the injury done does not amount to twenty-five cents the defendant may be punished under sects. GO and o/ JJ05/.— Reg. vs. Dodson, 9 Ad. & El. 704. If a tree is cut or damaged, that is sufficient : it need not be totally destroyed.— Taylor's case, R. & R. 373. Indictment after two previous convictions for cutting or damaging trees to the value of twenty-five cents, tvheresoever groiving— that J. 8., on ... . one elm tree, the property of J. N., then growing on a certain land of the said J. N., in the unlawfully and maliciously did cut and damage, thereby then doing injury to the said J. N., to the amount of forty cents, against the form of the Statute in such case made and provided. And the jurors aforesaid, upon their oath aforesaid, do say, that heretofore and before the committing of the offence hereinbefore mentioned (stating the tivo previous convictions.) See sect. 26, Procedure Act of 1869, as to indictments and procedure, in indictable offences committed after previous ss 676 THE CRIMINAL STATUTE LAW. / convictions, and lor which a greater punishment may be inflicted on that account. DESTROYINa PLANTS, VEGETABLES, ETC., IN A GARDEN, ETC. Sect. 27.— Whosoever unlawfully and maliciously des- troys, or damages with intent to destroy, any plant, root, fruit or vegetable production, growing in any garden, orchard, nursery ground, house, hot-house, green-house or conservatory, shall, on conviction thereof before a Jus- tice of the Peace, at the discretion of the Justice, either be committed to the common gaol or other place of con- finement, there to be imprisoned only, or to be imprisoned and kept to hard labour, for any term not exceeding three months, or else shall forfeit and pay, over and above the amount of the injury done, such sum of money not exceeding twenty dollars, as to the Justice seems meet, and whosoever having been convicted of any such ofl'ence either against tliis or any former Act or Law, afterwards commits any of the said otFences in this section before mentioned, is guilty of felony, and shall be hable to be imprisoned in the Penitentiary for the term of two years, or to be imprisoned in any other gaol or place of confine- ment for any term less than two years, with or without hard labour, and with or without soUtary confinement. — 24-25 Vict., ch. 97, s. 23, Imp. As to summary convictions under this Act, see 2iOst, ;8ect. 75. As to sureties for the peace, in felonies, see^^os^, sect. 74. As to solitary confinement, see sect. 94, Pro- cedure Act of 180 9, and sect. 49, as to a verdict for an attempt to commit the ofl'ence charged in certain cases. Sect. 26, of the Procedure Act of 1869, provides for the form of indictment and the procedure in cases of offences committed after a previous conviction, and for which, on that account, a greater pmiishment may be inflicted. MALICIOUS INJURIES TO PHOPEETY. 677 In England there is no such clause applying to the Act concerning malicious injuries to property, and the fomi in Arcbbold, page 552, would be defective here. The indictment, with us, must be in accordance with what is said by Greaves, Consol. Acts, 200, and Archbold, 364. The law laid down in Reg. vs. Martin, 11 Cox, 343, applies, with us, to any indictment for a subsequent offence. Indictment for destroying plants after a previous convic- tion — . . . .that J. S., on .... one dozen heads of celery, the property of J. N., in a certain garden of the said J. N. situate then growing, unlawfully and maliciously did destroy, against the form of the Statute in such case made and provided. And the jurors aforesaid, upon their oath aforesaid, do say that heretofore and before the com- mitting of the offence hereinbefore mentioned (state the previous conviction) And so, the jurors aforesaid, upon their oath aforesaid, do say that the said J. S., on the day and year first aforesaid, one dozen heads of celery, the property of J. N. in a certain garden of the said J.N. situate then growing, feloniously, unlawfully and maliciously did destroy, against the form. . . . DESTROYING PLANTS, VEGETABLES, NOT IN A GARDEN. Sect. 28. — Whosoever unlawfully and maliciously destroys, or damages with intent to destroy, 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 course of any manufacture, and growing in any Lnd, open or inclosed, not being a garden, orchard or nursery ground, shall on, conviction thereof before a Justice of the Peace at the discretion of the Justice, either be com- mitted to the common gaol or other place of confinement, there to be imprisoned only, or to be imprisoned and kept to hard labour, for any term not exceeding one 678 THE CRIMINAL STATUTE LAW. C~ month, or else shall forfeit and pay over and above the amount of the injury done, such sum of money, not exceeding five dollars, as to the Justice seems meet ; and in default of payment thereof, together v^rith the costs if ordered, shall, be committed as aforesaid, for any term not exceeding one month, unless payment be sooner made, and whosoever, having been convicted of any such offence, either against this or any former Act or Law, afterwards commits any of the said offences in this section before mentioned and is convicted thereof in like manner, shall be committed to the common gaol or other place of confinement, there to be kept to hard labour for such term, not exceeding three months, as the convicting Justice thinks fit.— 24-25 Vict., ch. 97, s. 24, Imp. All offences against this clause are punishable summa- rily. — See sect. 75, post. INJURIES TO FENCES, GATES, ETC., ETC., ETC. Sect. 29. — Whosoever unlawfully and maliciously cuts, breaks, throws down, or in anywise destroys any fence of any description whatsoever, or any wall,' stile, or gate, or any part thereof respectively, shall, on conviction thereof before a Justice of the Peace, for the first offence forfeit and pay, over and above the amount of the injury done, such sum of money, not exceeding five dollars, as to the Justice seems meet; and whosoever, having been convicted of any such offence, either against this or any former act or law, afterwards commits any of the said offences in this section before mentioned, and is convicted thereof in|like manner, shall be committed to the common gaol or other place of confinement, there to be kept to hard labour for such term, not exceeding three months, as the convicting Justice thinks fit. — 24-25yict., ch. 27, 8. 25, Imp. All offences against this clause are punishable summa- rily. — See post, sect. 75. MALICIOUS INJURIES TO PROPERTY. 67D INJURIES TO MINES. Sect, no — Whosoever unlawfully ftinl maliciously sets fire to any minn of coal, cannel coal, anthracite, or other mineral fuel, or to any mine or well of oil or other conihus- tible substance, is guilty of felony, and shall bo liable to be imprisoned in the Penitentiary for life, or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement.— 24~2-5 Vict., ch. 97, s. 2G, Imp. Sect. 31. — Whosoever unhiwfully and maliciously, by any overt act, attempts to set fire to any mine, or to any such oiUvcU, as aforesaid, under such circumstances that if the same were thereby set fire to the offender would be guilty of felony, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding fourteen years and not h « than two years, or to be imprisoned in any other gaol ir place of confine- ment for any term less than two years, with or without hard labour, and with or without solitary confinement. —24-25 Vict.-ch. 97, s. 27, Imp. The words in italics are additions to the English Act. As to solitary confinement, see sect. 94, Procedure Act of 1869. As to sureties for the peace, see sect. 74, ^os^. It is equally an offence within this section to set fire to a mine in the possession of the party himself, provided it is proved to be done with intent to injure or defraud any other person. The mine may be laid as the property of the person in possession of or working it, though only as agent. — Reg. vs. Jones, 2 Mood. 293. Indictment. — feloniously, unlawfully and mali- ciously did set fire to a certain mine of coal of J. N. situate at against the form 680 THE CRIMINAL STATUTB LAW. DKOWNINO MINUS, ETC., ETC., ETC. Sect. 32. — WlioHoover unlawfully and maliciously causes any vvator, oartli, rubbish or other substance to be conveyed or run or fall into any mine, or into any oil well, or into any subtt'rraneous passnge connnunicating therewith, with .tent thereby to destroy or damage such mine or well, or to hinder or delay the working thereof, or, with the like intent, unlawfully and mali- ciously pulls down, fdls up, or obHtructs, or damages with intent to destroy, {obstruct or render useless, any airway, waterway, drain, pit, level or shaft, of or belong- ing to any mine or ivcll, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding seven years and not less than two years, or to be imprisoned in any other gaol or place of confine- ment for any term less than two years, with or without hard labour and jwith or without solitary confinement; pr<>vided that this section shall not extend to any damage committed underground by any owner of any a'ljoining mine or well in working the same, or by any person duly employed in such working. — 24—25 Vict., ch. 97, s. 28, Imp. The words in italics are additions to the English Sta- tute, and intended, no doubt, as in the last two preceding sections, to protect petroleum wells. See the remarks under these two sections. Indictment for droivning a mine. — . feloniously, unlawfuUy and maliciously did cause a quantity of water to be conveyed into a certain mine of J. N., situate with intent thereby then feloniously to destroy the said mine, against the form of the Statute DESTROYING ENGINES, ERECTIONS, ETC., ETC., ETC, USED IN MINES. Sect. 33. — Whosoever unlawfully and maliciously MALI0IOU8 INJUUIK8 TO I'KOPBRTY. 681 pulls down, or detitroys, or damages with intent to destroy or render uBelosg, any fiUinm engine, or other engi!)e for 8ini<.ing, draining, ventilating or working, or for iti anywise assiMting in sinking, draining, ventilating, or working any mine or well, or any appliance or appara- tus in connection with any such steam or other engine, or any staith, building or erection used in conducting the business of any mino or well, or any bridge, waggon- way or trunk for conveying minerals or oil from anf mine or well, whetiier such engine, staith, building, erec- tion, bridge, waggon-way or trunk be completed or in an unfmished state, or unlawfully and maliciously stops, obstructs or hinders the working of any such steam or other engine, or of any such appliance or apparatus as aforesaid, with intent thereby to destroy or damage any mine or well, or to liinder, obstruct or delay the working thereof, or unlawfully and maliciously wholly or par- tially 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 shall be made, used in any mine or 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 well, or the working or business thereof, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding seven years and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary con- finement.— 24-25 Vict., ch. 97, s. 29, Imp. The words in italics are not in the English Act. As to solitary confinement, see sect. 94, Procedure Act of 1869, also sect. 49, of the same Act as to a verdict for an 682 THE CRIMINAL STATUTE LAW. attempt to commit the felony charged, upon an indict- ment for the felony itself, in certain cases. See post, sect. 74, as to sureties for the peace. Prove that the defendant pulled down or destroyed the engine, as alleged. A scaflbld erected at some distance above the bottom of a mine, for the purpose of working a vein of coal on a level with the scaffold was holden to be an erection used in conducting the business of the mine, within the meaning of the Statute. — E. vs. Whit- tingham, 9 C. «fc P. 234. — Wrongfully setting a steam- engine in motion, without its proper machinery attached to it, and thereby damaging it and rendering it useless, is within this section.— R. vs. Norris, 9 C. & P. 241. Damaging a drum moved by a steam-engine, but of which it forms no part, is not damaging a steam-engine- — E. vs. Whittingham, suprd. — A trunk of wood used to convey water to wash the earth from the ore was held to be an erection used in conducting the business of a mine within the meaning of the Statute. — Barwell vs. Winter- stoke, 14 Q. B. 704. Indictment. — a certain steam-engine, the pro- perty of J. N. for the draining and working of a certain mine of the said J. N., situate feloniously, unlaw- fully and maliciously did pull down and destroy, against the form INJUKIES TO SEA AND KIVER BANKS, ETC., ETC., ETC. Sect. 34. — Whosoever unlawfully and maliciously 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 unlawfully and maliciously throws, breaks, or cuts down, levels, undermines, or otherwise destroys MALICIOUS INJURIES TO PllOPEBTY. 683 any quay, wharf, jetty, lock, sluice, floodgate, weir, tun- nel, towing-path, drain, water-course or other work belonging to any port, harbour, dock or reservoir, or on €r belonging to any navigable. river or canal, or any dam or structure erected to create or utilize any hydraulic power, or any embankment for the support tliereof, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life, or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement. — 24-25 Vict., ch. 97, s. 30, Imp. Sect. 35. — Whosoever unlawfully and maliciously cuts off, draws up or removes any piles, stone, or other mate- rials fixed in the ground and used for securing any sea- bank or sea-wall, or the bank, dam, or wall of any river, canal, drain, aqueduct, marsh, reservoir, pool, port, har- bour, dock, quay, wharf, jetty or lock, or unlawfully and maliciously opens or draws up any floodgate or sluice, or does any other injury or mischief to any navigable river or canal, with intent and so as thereby to obstruct or pre- vent tlie carrying on, completing or maintaining the navigation thereof, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for any term not exceeding seven years, and not less than two years, or to be imprisoiied in any other gaol or place of confinement for any term less tlian two years, witli or without hard labour and with or witliout solitary confinement. — 24-25 Vict., ch. 97, 8. 31, Imp. As to solitary confinement, verdict for an attempt, and sureties for the peace, same as under sect. 33, ante. Indictment under sect. 34. — .... a certaiu part of the bank of a certain river called the river situate . . feloniously, unlawfully and maliciously did cut 684 THE CRIMINAL STATUTE LAW. down nrid break down, by meana whereof certain land* wei^ethen overflowed and damaged {or tvas in danger. . . .) against Indictment under sect. 35. — a certain pile, then fixed in the ground, and then used for securing the bank of a certain river called the river situate feloniously, unlawfully and maliciously did cut otf, against the form INJURIES TO PONDS. Sect. 36. — Whosoever unlawfully and maliciously cuts througli, breaks down, or otherwise destroys the dam, floodgate or sluice of any fish-pond, or of any water which is private property, or in which there is any pri- vate right of fishery, with intent thereby to take or de- stroy any of the fish in such pond or water, or so as thereby to cause the loss or destruction of any of the fish, or unlawfully and maliciously puts any lime or other noxious material in any such pond or water, with intent thereby to destroy any of the fish that may then be, or that may thereafter be put therein, or unlawfully and ma- liciously cuts through, breaks down or otherwise destroys the dam or floodgate of any millpond, reservoir or pool, is guilty of a misdemeanor, and shall be liable to be im- prisoned in the Penitentiary for any term not exceeding seven yenrs and not less than two years, or to be impri- soned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement. — 24-25 Vict., ch. 97, s. 32, Imp. Indictment for breaking down the dam of a fish-pond, — the dam of a certain fish-pond of one J. N., situate unlawfully and maliciously did break down and destroy with intent thereby then to take and destroy the MALICIOUS INJURIES TO PROPERTY. G8& fish in the said pond then being, against the form Indictment for putting lime into a Jish pond. — un- lawfully and maliciously did put a large quantity, to wit, ten bushels of hme, into a certain fish-pond of one J. N., v'tuate with intent thereby then to destroy the fish in the said pond then being, against the form . . Indictment for breaking down a mill dam. — the (lam of a certain mill-pond of J. N., situate unlaw- fully and maliciously did break down and destroy, against the Maliciously in all cases under this Act means a wrong- ful act done intentionally without just cause or excuse. —2 Russell,1073, note by Greaves. — See Procedure Act of 1869, sect. 94, as to solitary confinement, and sect. 49 of the same Act as to a verdict for an attempt to commit the mis- demeanor charged in certain cases, upon an indictment for the misdemeanor itself. Seepost, sect. 74, as to fine in lieu or in addition to any punishment authorized by thia Act, and sureties for the peace. INJURIES TO BRIDGES, VIADUCTS, ETC., ETC. Sect. 37. — Whosoever unlawfully and maliciously pulls or throws down, or in any wise destroys, any bridge; whether over any stream of water or not, or any viaduct or aqueduct, over or under which bridge, viaduct or aque- duct, any highway, railway or canal passes, or docs any injury with intent and so as thereby to rendr-r such bridge, viaduct or aqueduct, or the highway, railway or canal passing over or under the same, or any part thereof dangerous or impassable, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life or for any term not less than two years, or to be imprisoned in any other gaol or place of confinement for any term les* than two years, with or without hard labour, and with or «86 THE CRIMINAL STATUTE LAW. without solitary conntienient. — 24-2o Vict., ch. 97, s. 33, Iinp. This cluuso by tlio wonls over any stream of water or not does away with tiio dilliculties raised in Kox. vs. Ox- fordsliiro, J B. & Ad. :iS})-:i97, und Reg. vs. Derbyshire, 2 Q. B. 745. The dause does not apply to private bridges, but any injury to a private bridge exceeding the sum of twenty dollars would bring the case within sect. 59, post, and if less than that sum within sect. 60, post. Indictment for pnUing down a bridge. — a cer- tain bridge, situate feloniously, unlawfully and maliciously did pull down and destroy, against the form Indictment for injuring a bridge. — feloniously, unlawfully and nialiciously did instate the injury) a cer- tain bridge, situate with intent thereby to render the said bridge dangerous and impassable, against the form Archbold, 541. The intent, under this part of the section must be laid and proved, but if the bridge be proved to have been ren- dered dangerous or impassable, by the act of the defen- dant, it will be sulhcient proof of the intent. Archbold, loc. cit. See sect. 94, Procedure Act of 18G9, as to solitary conlinement, and sect. 49 of the same Act as to a verdict for an attempt to commit the oflence charged, in certain cases, upon an indictment for the olfence itself. See 2)ost, sect. 74, as to sureties for the peace. DESTROYINO TURNPIKE GATES, TOLL-BARS, ETC., ETC. Sect. 38. — Whosoever unlawfully and maliciously throws down, levels, or otherwise destroys, in whole or in part, any turnpike gate or toll-bar, or any wall, chain, MALfOIOUS INJURIES TO PROPERTY. 087 rail, post, bar or other fonco belonging to ntiy tunij)ike gate or toll-bar, or set up or erected to [)reverit pn«8(!n- gers passing by without paying any toll directed fo bo paid by any Act or Law relating then^to, or any house, building or weighing engine erected for the better collec- tion, ascertainment or security of any such toll, is guilty of a misdemeanor and shall be linble to bo punishe*! by fine or imprisonment or both in the discretion of the Court.— 24-aO Vict., ch. 97, s. 34, Imp. See sect. 90, Procedure Act of 18()9, as to punishment in such cases, also sect. 49 of the same Act, jisto a ver- dict in cases where an attcm[»t to commit the ofliiuce charged only is proved, and sect. 74, post, as to sureties for keeping the peace. Indictment. — a ccirtain turnpike gate sitnnte unlawfully and maliciously did throw down, level and destroy, against the form INJURIES To ItAlLWAY TKAINS AM) 1 KLEOUAl'lIS. Sect. 39. — Whosoever unlawfully and maliciously puis, places, casts or throws upon or across any rnilway, any wood, stone or other matter or thing, or unlawfully and maliciously takes up, removes or displaces any mil, sleeper or other matter or thing belonging to any rail- way, or unlawfully and maliciously turns, moves or diverts any point or other machinery belonging to any railway, or unlawfully and maliciously makes or shows,, hides or removes any signal or light upon or near to any railway, or unhiwfully and maliciously does or causes to be done any other matter or thing, with intent in any of the cases aforesaid to obstruct, upset, overthrow, injure or destroy any engine, tendtn-, carriage or truck using such railway, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life, or for any term <388 TUB CRIMINAL STATUTE LAW. n.l'h'* not less tliau two years, or to be imprisoned in any other gaQl or place of eoulinement for any term less than two years, with or without hard labour.— 24-26 Viet., eh. 97, sect. 35, Imp. Sect. 40. — Whosoever, by any unlawful act or by any wilful omission or neglect, obstructs or causes to be obstructed, any engine or carriage using any railway, or xiids or assists therein, is guilty of a misdemeanor, and shidl be liable to be imprisoned in any gaol or place of confmement for nny term less than two years, with or witiiout hard liibour.— 24-2'5 Vict,, ch. 97, sect; 3G, Imp. Sect. 41. — Whosoever unlawfully and maliciously 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 telegraph, or in the working thereof, or unlawfully and maliciously prevents or obstructs in any manner whatsoever the sending, conveyance or delivery of any communication by any such telegraph, is guilty of a misdemeanor, and shall be liable to be imprisoned in any gaol or place of con- finement, other than a Penitentiary, for any terra less than two years, with or without hard labour, unless some greater punishment is provided for the offence hy any other Act in force, in which case such offender may he indicted and punished under this Act. — 24-2-5 Vict., ch 97, s. 37, Imp. Sect. 42. — Whosoever unlawfully and maliciously, by any overt act,attempts to commit an of the offences in the last preceding section mentioned, shall, on conviction thereof before a Justice of the Peace, at the discretion of the Justice, either be committed to the common gaol or any other place of confinement, there to be imprisoned MALICIOUS INJURIES TO PUOPERTY. 689 only, or to be imprieoued and kept to hard labour, for ■any term not exceeding three months, or else shall forfeit and pay such sum of money, not exceeding fifty dollars, as to the Justice seems meet. — 24-25 Vict., cli. 97, s. 38, Imp. The words in italics in sect. 41 are substituted to a proviso to be found in the English statute, which empowers tin* Justice of the Peace summarily to convict theoft'ender, if he is of opiuion that it is not expedient to the ends of justice that the offence should be prosecuted by indictment ; and as sWne otlences against this section must be of a very trifling character, it is to be regretted that this proviso has been omitted in our Statute, though this is perhaps of no consequence, as to Ontario and Quebec, as ch. 07 of the Cons. Stat, of Canuda, seems to be in force, and by sect. 1 of the (jleneral Repeal Act of 18G9, proceedings for such oflcnces may yet be taken under sect. 21 of the said ch. 07, C. S. (J. As to a verdict for an attempt to cominit the felony charged, upon an indictment under sect. 80, in certain cases, see sect. 49 of the Procedure Act of 1869. As to sureti(!s in felonies, and fine and sureties in misde- meanors, iinder this Act, see post, sect. 74. Sec also remarks, under sections 31 and 33, of 32-33 Vict., ch. 20, Act concerning offences against the person. Indictment under sect. 39. — .... feloniously, unlaw- fully and maliciously did put and place a piece of wood upon a certain railway called in with intent thereby then to obstruct, upset, overthrow, and injure a certain engine and certain carriages using the said railway, against the form Archbold, 543. The intent may be laid in diflerent ways, in different counts, if necessary. G90 THE CRIMINAL STATUTE LAW. IS- '< I'' ■I Prove that the defendant placed the piece of wood upon ov across the raih-oad as described in the Indictment, or was present aiding and assisting in doing so. The intent may be inferred from circumstances from which the jury may presume it. In general, the act's being done wilfully, and its being likely to obstruct or upset the railway train, would be sufficient primd facie evidence of an intent to do so. Where the engine or carriage is in foct obstructed, or the safety of the'persons conveyed therein is in fact endangered by the defendant's act, but there is no evidence of any of the intents men- tioned in sect. 39, the defendant should be indicted for a misdemeanor under sect. 40. — R. vs. Bradford, Bell, 268. — A line of railway constructed under an Act of Parliament, but not yet opened for public traffic, and used only for the carriage of materials and workmen, is within the Statute. — Idem. — A drunken man got upon the railway and altered the signals and thereby caused a luggage train to pull up and proceed at a very slow pace : held, upon a case reserved, Martin, B. dissentiente, that this was a causing of an engine and carriage using a railway to be obstructed within the meaning of sect. 36 (40 of our Statute) of the Act in question. — Eeg. vs. Hadfield, 11 Cox, 574. — A person improperly went upon a line of railway and purposely attempted to stop a train approaching by placing himself on the space between two lines of rails, and holding up his arms in the mode adopted by inspectors of the line when desirous of stopping a train : held that this amounted to the offence of unlawfully obstructing an engine or carriage using a railway under sect. 30 (40 of our Statute) of the Statute in question. — Reg. vs. Hardy, Jl Cox. 650. MALICIOUS INJURIES TO PROPERTY. 691 INJUIUE8 TO WORKS OF ART, PICTURES, STATUES, BUSTS, ETC., ETC. Sect. 43— Whosoever unlawfully and maliciously des- troys or damages any book, manuscript, picture, print, statue, bust or vase, or any other article or thing kept for the purpose of art, science, or literature, or as an object of curiosity, in any museum, gallery, cabinet, hbrary, or other depository, which museum, gallery, cabinet, library, or other depository is either at all times or from time to time open for the admission of tiie public or of any considerable number of persons to view the same, either by the permission of the proprietor thereof, or by the payment of money before entering the same,' or any picture, statue, monument, or other memorial of the dead, painted glass, or other monument of tvorh of art in any church, chapel, meeting-house or other place of divine worship, or in any building belonging to Her Majesty, or to any county, riding, city, town, village, iwish or place, or to any university, or college, or hall of any university, or in any street, square, church-yard, burial ground, public garden or ground, or any statue or monument exposed to public view, or any ornament, railing or fence surrounding such statue or monument' or any fountain, lamp, post or other thing of metal, glass' wood or other material in any street, square or other public place, is guilty of a misdemeanor, and sliall be liable to be imprisoned in any gaol or place of .'onfine- ment for any term not exceeding one year, with or with- out hard labour, provided that nothing herein contained shall be deemed to affect the right of any person to recover, by action at law damages for the injury so o.sf, sect. 07. Archbold, 51G. Indictment nndcr sect. 49. — . . . , that J. S. on on MALICIOUS INJURIES TO PROrERTY. 697 Ijoarda certain ship called " the Rattler," the property of J. K , on a certain voyage upon'the liigh seas, then being upon the high seas, feloniously, unlawfully and mali- ciously did set lire to the said ship, with intent thereby to prejudice the said J. N., the owner of the said ship, against the form The intent may be stated in differ- ent ways, in difterent counts. In R. vs. Fhilp, 1 Mood. 203, there was no proof of malice against the owners, and the ship was insured for more than its value, but the judge thought that the defen- dant must be understood to contemplate the consequences of his act, and the judges held that, as to this point, the conviction was right. — See R. vs. Newill, 1 Mood. 458. The destruction of a vessel by a part-owner shows an intent to prejudice the other part-owners, though he has insured the whole ship, and promised that the other part- owners should have the benefit thereof —Idem. The under- writers on a policy of goods fraudulently made are with- in the Statute, tlioughno goods be put on board. — Idem. If the intent belaid to prejudice the underwriters, then prove the policy, and that the ship sailed on her voyage. — R. vs. Gilson, R. & R. 138. It would seem, however, that the general provision of the 4Sth section of this Sta- tute renders unnecessary in any case the allegation or the proof of the intent mentioned |^in the 49th section. — Archbold, 517. Proof that it was done wilfully is of itself evidence that it was done with intent to prejudice. PLACING GUNPOWDER NEAR A VESSEL WITH INTENT, ETC. Sect. 51. — Whosoever unlawfully and maliciously places or throws in, into, upon, against or near any ship or vessel any gunpowder or other explosive substance, with intent to destroy or damage any ship or vessel, or any machinery, working tools, goods, or chattels, whether or not any explosion takes place, and whether or not any 098 THE CRIMINAL STATUTE LAW injury is effected, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for any term not ex- ceeding fourteen years and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour, and with or without solitary confinement — 24-25 Vict., ch. 97, s. 45, Imp. Sect. 52. — Whosoever unlawfully and maliciously damages, otherwise than by fire, gunpowder or other explosive substance, any ship or vessel, whether complete or in an unfinished state, with intent to destroy the same or render the same useless, is guilty of felony^ and shall be liable to be imprisoned in the Penitentiary for any term not exceeding seven years, and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, with or without hard labour and with or without solitary con- finement. — 24-25 Vict., ch. 97, s. 46, Imp. See remarks under sects. 48, 49, 50, and under sects. 13 and 14 ; also under sect. 29 of ch. 20, an Act concerning offences against tlie person. EXIIiBITING FALSE SIGNALS, ETC. Sect. 53. — Whoyoever unlawfully masks, alters or re- moves any light or signal, or unlawfully exhibits any false light or signal, with intent to bring any ship, vessel or boat into danger, or unlawfully and maliciously does any- thing tending to tlie immediate loss or destruction of any ship, vessel or boat, and for which no punishment is here- inbefore provided, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary for life or for any term not less than l\^'0 years, or to be imprisoned in any other gaol or place of confinement for any temi less than two years, with or without hard labour and with or with- out solitary confinement. — 24-25 Vict., ch. 97, s. 47, Imp. MALICIOUS INJURIES TO PROPERTY. 69^ As to solitary confinement, see sect. 94, Procedure Act of 1869, and sect. 49, of the said Act, as to verdict when the offence is not completed. As to sureties for the peace, see post, sect. 74. It is to be remarked that the first part of the section says " tmlawfully " only. Indictment for exhibiting false signals. — The jurors for Our Lady the Queen upon their oath present, that before and at the time of committing the felony hereinafter men- tioned, a certain ship, the property of some person or persons to the jurors aforesaid unknown, was saihng on a certain river called near unto and that J. S. on well knowing the premises, whilst the said ship was so saihng on near unto the said parish as aforesaid, feloniously and unlawfully did exhibit a false light, with intent thereby to bring the said ship into danger, against the form Archbold, 535. Indictment for doing an act tending to the immediate danger of a ship.— near unto the parish of and that J. S. on well knowing the premises, whilst the said ship was so sailing near the said parish as aforesaid, feloniously, unlawfully and mahciously did {state the act done), the said act so done by the said J. S. as aforesaid then tending to the immediate loss of the said ship, against the form Arclibold, 536. CUTTING AWAY, ETC., ETC., ETC., BUOYS. Sect. 54. — Whosoever unlawfully and mahciously cuts away, casts adrift, removes, alters, defaces, sinks or destroys, or unlawfully and mahciously does any act with intent to cut away, cast adrift, remove, alter, deface, sink or destroy, or in any other manner unlawfully and maliciously injures or conceals any boat, buoy, buoy-rope, perch or mark used or intended for the guidance of seamen too TFIB CRIMINAL BTATUTE LAW, or the purpose of navigation, is guilty of felony, and shall be liable to be imprisoned in the Penitentiary tor any term not exceeding seven years, and not less than two years, or to be imprisoned in any other gaol or place of confmement for any term less than two years, with or without hard labour, and with or without solitary con- finement. — 24-25 Vict., ch. 97, s. 4S, Imp. No intent need be charged in the indictment. Mali- ciously means wilfully. This section includes the oll'ence and the attempt to commit the offence. As to solitary confinement and sureties for the peace, as under last pre- ceding section. Tnilictmcnt. — that J. S. on upon the river called feloniously, unlawfully and maliciously did cut away a certain buoy then used for the guidance of seamen and for the purpose of navigation, against the form Archbold, 537. We iiave, in our Statute Book, an enactment, which, is certainly contradictory with the above clause : it is sect. 5, 3f Vict., ch. 59, an Act rdating to Ught-houseSj buoys and beacon \ extended by sect. 4, 33 Vict., sect. 18, as follows : " \\ oever shall wilfully take away, destroy, deface^, extingr,ish or remove any light-house, hglit-ship, floating or other li'dit, lantern, or othersignal, buoy or beacon, anchor or landmark constructed, created, laid down, placed or replaced, under this Act, shall be guilty of a misdcMuea- nor, for which he may be tried, either on an indictment in the usual way, before any Court having cognizance of cases of misdemeanor in tlie county or district in which the offence is connnitted,or summarily before any Stipen- diary Tuigistrate, or Police Magistrate or Judge of the Sessions of the Peace, or two Justices, within the limit of whose jurisdiction the oftence is connnitted. MALICIOUS INJITRIKS TO PROPEUTV 701 PRNALTY FOH MAKING VKSSKLS FAST TO lU'uYS, I'.KACONS ETC. 8t»ct. ^0. — Wliosoovor iiinkcs fjist any vesst^ or boat to any 8ucli buoy, beacon or sea mark, shall, on conviction thereof before any Justice of the I'eace, forfeit a sinn not exceeding ten dollars, and in default of payment Hhall hv- liable to be imj)risoned in any g.iol or i»lac(! of conline- mcnt for anv term not exceediui^ one month. This clause is not in the English Act. As to summary convictions fur oll'ences against this Act. see ^wsif, sect. 7-'>. CUTTING JJOOMS, IlAl-TS, KTC, KTC, ETC., ADKIFr. Sect. 50. — Whosoever nidawfully and maliciously cuts or loosens any boom on any rivisr, or other water, or breaks or cuts loose any rait or crib of timb(!r or saw- logs, is guilty of a misdemeanor, and shall be liable to be punished by fine and imprisonment for not less than tiro years, or both, in the discretion of the Court. This clause; is not in the English Act. There are two errors in it: the iirst is the word " an(V^ instead of or in fine ^' nmV^ imprisonment: it ought to ho fine ^'or^^ imprisonment. The scconil to or upon any real or personal property whatsoever, either of a public or a private natiu'e, for which no punisinnent is hereinbcifore provided, the damage, injury or spoil being to an amount exceeding twenty dollars, is guilty of a misdemeanor, and shall be liable to he imprisoned in the Penitentiary for any term not exceeding five years and not less than two years, or to be imprisoned in any other gaol or place of confmement lor any term less than two years, with or without hard labour. — 2t-2-3 Vict., ch. t)7, s. 51, Imp. If au attempt to commit the ollenceonly is proved, see sect. 4i), Procedure Act of I8G9. Siio jwst, sect. 74, as to line and sureties, at the discretion of the Court. The English Act has an additional enactment giving a greater punishment for oilences connnitted in the night. — Under this section, evidence of damage connnitted at several times, in the aggregate, but not at any one time exceed- ing five pounds will not sustain an indictment. — Reg. vs. Williams, 9 Cox, ;3;}S. The injury nuist directly amount to five pounds : con- sequential damage cannot be taken in consideration, to make up that amount. — Reg. vs. Whiteman, 6 Cox, 370 ; Dears. ;i5:3. In Reg. vs. Thoman, 12 Cox, 54, the in- dictment was as follows That IVIargaret Thoman on the 30tb of January, J.S7I, in and upon three frocks, six petticoats, one flannel petticoat, one flannel vest, one pinafore, one jacket of the value of twenty pounds, of the property of unlawfully and uialicioiisly did commit certain damage, injury and spoil to an amount exceeding five pounds, by unlawfully cutting and des- troying tlie same against the form of the Statute in such case made and provided. At the trial, the prisoner's MALICIOUS INJUIUKS TO I'llOl'KIlTY. 705. counsel objected tlint the indictment was brid, becnnscy the value of tlu; articles damaged was ascribed to tliem , collectively and not individually. Hut upon a ciise re- served, the indictment was held good, and Hovill, (J. J., said : "We are all of oj)inion that it wiis not material to^ allege the value of the several articles in the indictmcoit, but only that the amount of the diiniage exc(!eded live pounds." Defendant was indicted for nnlawfidly and maliciously committing damiige upon a window, in the house of the- prosecutor, against this section. Defendant who had been fighting with other persons in the street after being turned out of a piddic- bousif, w(!nt across the street, and picked up a stone, which he threw at them. 'J'lie stone juissed them, pass(Kl over their bends, and brok(! a win1 itU'd, not oxt't'tMliiiu; tlm hmiii of JAVi'iity iollarMi wliioh liisl niciitioiKMl hiiiu <»t' iiioiiry nIuiII, ill 'J 1" privato pr«>iH'ily, bo paid l«» tii(» party *• cvt'd ; iiatiiiH I; and ill tho caHti of proporly ol' a \ or vvlion'iii any piiblif. right \h «'«>iuH!riH' lilit luoiioy sliall bo ai»pliod in llio saiiio inaiim-r a« t'voiy 1 by a Justico of ilio Vomw iiiidtir illi!^ Cosis pLMinlly impost Act; and it'sucli sum of nioiiry, togotlu'r with tlio cost if onU'iod, art) not paid, I'it.hor imnu'diatcly alb-r the 0011 vu tiou, or within siu'h period as tho JnNlicc shall tho tiuio of tho conviction appoint, tho Justice may t tho olfoiKh'r to tho conmion jj;aol or other plac comnu o f conlinomont thcro to bo iniprisono( d «>nly or to b(^ isnm aiK hortMii I tho .Justice thinks ot oxcooding two months, unless such I costs bo sooner paid; provided that nothing imi)risoned and kept to hard labour, a lit, for any term n 'ontaiiu tho I reasonable supposition that ■d shall extend to any case where party acted under u fair aiH ho had u right to do tho act complained of, nor to any trespass, not being wilful and malicious, committed in bunting, lishing or in the pursuit of game, but every sue h trtispass shall be pui»ishable in th« same manner as l—2\-'2o Vict., ch. !)7, if this Act had not boon passec 8. fyJ, Imp. gj.^.j. (il.— The provisions in the last preceding sec- tion contained sh dl extend to any person who nulaiv- ftilhf or maliciously conmiits any injury to any tree, linir, shrub, or iinderwoor thin Act, mw pust, sect. 7/), W. wiiN Hiitnitioiiud bufure tho JuBticoM inidor tliifi <'lallK(^ Jlo vvtiH ill tliu oiiipluyiiioiit of D., himI by hiii urdor, \hi forcibly entered a gimlcii boiotigmg iu nnd in the (K5CMi»ation of K. accorripimicd by Ibirtecn olbermoii, utui cut a Hinall ditcb, from forty lo fifty yardn m Icngtb, through tiio Noil. I'\ iuu\ bin prcdocesMorH in title iia. l*'or the deleticc i). wa« culled^ who stated that, fifteen yearn befort;, there had been an open ditch in the land, which received the drainage from the highway, and that ho gave diroctioiiM for the ditch to be cut by W. in the exercine of whiit Im considered to be a public right. The .luHticeH fonnd that VV. had no fair and reaHonabhi HuppoHition that h«! had a right to do the act cf, and accordifigly convicted him: held, that by the-3. A conviction by Ji tices under sect. '^2, ch. 97, Ui-H-'i Vi(;t., cannot be brought up by c6, Imp. Sect. 73. — When any person convicted of any offence j)unishable upon summary conviction by virtue of this Act, 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 so discharged from his conviction by any Justice as aforesaid, he shall be released from all further or other proceedings for the same cause. — 24-25 Vict., ch. 97, s. G7, Imp, Sect. 74. — Whenever any person is convicted of any indictable misdemeanor punishable under this Act, the Court may, if it think fit, in addition to or in lieu of any of the punishments by this Act authorized, fine the offen- der and require him to enter his own recognizances, and to find sureties, both or either, for keeping the peace and being of good l)ehaviour ; and in case of any felony punishable under this Act, the Court may, if it thinks fit, require the offender to enter into his own recognizances, and to find sureties, both or eitlier, for keeping tlie MALICIOUS INJURIES TO PROPERTY. 713 peace, in addition to any punishment by tliis Act author- ized • provided that no person shall be imprisoned under this section for not finding sureties for any period exceed- ing one year.— 24-25 Vict., cli. 97, s. 73, Imp. This enactment is repeated in chapters 18, 19, 20, 21, of 32-33 Vict., (1869) •, it is so repeated, in England, in each of the Consolidated Criminal Statutes of 1861. Several articles censuring this clause having been published in England, when it was enacted there as part of the Consolidated Criminal Acts, Mr. Greaves, Q.C., the learned framer of these Acts, and of this particular clause, answered these criticisms by the following remarks : — " This is a new enactment.— A fine is, at common law, one of the punishments for a misdemeanor, and by this clause, the Court may, in addition to, or in lieu of, any of the punishments assigned to any misdemeanor by these Acts, fine tha» offender. It may be us well to observe that a fine ought not to be imposed on a married woman, because in presumption of law she has no pro- perty wherewith to pay it. — Rex. vs. Thomas, Rep. T. Hard. 278." " In all cases of misdemeanor tlie Court might, by the common law, add to the sentence of imprisonment, by ordering the defendant to find security for his good behaviour and for keeping the peace, and might order him to be imprisoned until such security were found^ Reg. vs. Dunn, 12 Q. B. 1026 ; but as this power was not generally known, it was thought better to insert it in this clause." " As it sometimes happens in cases of felony, that it may be expedient to require sureties for keeping the peace after the expiration of any imprisonment awarded, this clause empowers the Court to require such sureties. It is easy to see that it may frequently be highly advisable 714 THE CRIMINAL STATUTE LAAV. to pass a very short sentence of imprisonment on a youth, and to direct him to be delivered to his friends on their entering in the proper recognizances. And it inay be well worth making tho experiment whether requiring adults to find such sureties may not prove beneficial. The great difficulty with which convicts have to contend immediately after th ir discharge, is the want of some check that may tend to prevent them from relapsing into their former habits ; and the knowledge that their sureties would be liable to forfeit their recog- nisances might, and probably would, iu some cases at least, operate as a check upon their conduct. In cases of assault and other breaches of the peace, it has been found highly beneficial to require the parties to find sureties for their future good behaviour ; and this leads to the hope that even in cases of felony a similar result may follow from requiring sureties for keeping the peace, especially where the felony has been accompanied by any personal violence." " As an attack was made by Mr. Saunders in the Laiv Times of'the 21st of September last on these clauses, which might, peradventure, cause some magistrates, who have not had a professional education, to doubt, we answered that attack in the addenda to the first edition, and as a reply to that answer was made by Mr. Saunders in the Laiv Times of the 30th November last, we shall answer that reply here. In order to render the matters plain, we will first state the objections raised, then our answers, then the reply, if any, to them ; and, lastly, our answers to that reply." "1. Mr. Saunders asserted that the difficulties of these clauses were ' of so formidable a chauicter as to render it exceedingly dangerous for any magistrate to encounter them.' Now, the power conferred by these clauses is MALICIOUS INJURIES TO PROPERTY. 715 only conferred on courts which try criminals by indict- ment 5 and if there bo any point of law peculiarly clear, it is that no rrtion will lie against any of the members of such a Court for any error in any judgment pronounced by that Court. The Courts of Quarter Sessions, there- fore, may act on these clauses with the most perfect safety. To this answer no reply has been given, and no doubt for the best possible reason, viz., that it admitted of none.'' " 2. Mr. Saunders said, '■ it is difficult to understand why the infliction of a fine should be inflexibly associated with the entering into recognizances t o keep the peace,' and vice versa. As the clause was originally framed, the Court might either impose a fine on the offender, or re- quire him to find sureties; but the select Committee of the Commons rJtered the clause in that respect. Nor is there the slightest difficulty occasioned by the alteration. The .ine may be as low ; and the recognizances for as short a time, ai.d in as small an amount as the Court thinks fit ; and, consequently, the Court may, in any case, if it think f t, impose a nominal fine on the offen- der, and reiiuire nim to find sureties in a large amount ; or the Court may, if it think fit, impose a heavy fine on the offender, and take his own recognizances alone in a small sum and for a short time. So tliat the alteration made by the select Committee of the Commons can cause no practical difficulty whatever. To this answer Mr. Saunders replied, that the objection taken was that < the hands of tlie Court were fettered for no practical advantage.' It is sufficient to rejoin that, practicjlhjj the hands of the Court are not fettered at a^ ; for the Court may impose a nominal fine, or require recognizances for a nominal term." ''3. Mr. Saunders said, 'as regards the fine itself,, 716 THE CRIMINAL STATUTE LAW, the section makes no provision in the event of its not being paid. Suppose the fine is not paid, what is to be done with the otlender ? Is lie to be committed to gaol in default ? What authority is there for this ? And if committed, for how long ? and if for a time certain, is it to be with, or without hard labour I These are difficulties which the framers of the section have evidently not fore- seen, and most certainly have not provided for.' The answer is, all these su2)posed difficulties have no exis- tence whatever. When an offender is convicted and re- ceives judgment, he is in the custody of the sheriff, and the (luestion is not whether he is to be committed to prison, for he is actually in )>rison, but how he is to get out of l>rison ; and the only means by which he can lawfully get out of prison, is by doing and suffering whatever the Court may lawfully adjudge him to do or to suffer." ''It is a general rule, also, that when a statute creates a new felony or misdemeanor, all the common law inci- dents are impliedly attached to it. Where therefore, a statute creates a misdemeanor, it at once is liable to the common law punishments for misdemeanor, of which fine and sureties of the peace, and imprisonment in default of paying the one or finding the other, are part. So where a statute creates anoflence and specifies its punishment, •that punishment is to be carried into execution according >to the course of the common law. Thus wherever a Statute creates a capital felony the oft'ender may be sentenced and executed according to the coursa of the common law. So, where a statute authorizes the Court to impose a fine, the offender may be imprisoned accord- ing to the course of the common law till the fine is paid. For, as Lord Coke says, a fine signifieth a pecuniary punishment for an oftence, and regularly to it imprisonment appertaineth. — 1 Inst. 126 h. And I MALICIOUS INJURIES TO PROPERTY. 717 lience it is that the Statutes simply authorize the Courts to impose the tine, and its payment is enforced according to the course of the common law. The framers of the 9 Geo. 4, c. 31, were well aware that this was the law, and by s. 9, in the case of manslaughter, by s. 20, in the case of taking away girls under sixteen years of age, and by s. 23, in the case of assault upon clergymen, the Court was empowered to adjudge the offender to pay a fine ; but no provision was made in any of these cases as to what was to be done in default of payment. No one will doubt that Lord Campbell knew the law in this respect; and it is well known that he drew his Libel Act, 5 and (J Vict., c. 90, with his own hand ; and by ss. 4 and 5 of that Act the Court may impose a fine, and there is no provision in default of payment. It would be waste of time tP Yefer to other like enactments on a point so per- fectly clear. All the preceding olxsorvations, except those founded on the 9 Geo. 4, c. 31, and 5 and 6 Vict., c. 96, apply equally to detaining an offender in prison till he finds sureties. But one precedent in point may be added. The 37 Geo. 3, c. 126, s. 4, makes everyper- son uttering coins liable to six months' imprisonment and to find sureties for good behaviour fcr six months after the end of such imprisonmoiit, and in, case of a second convictio?v sureties are i-equired for two years; but no power of commitment id given in either case. Again, both the 1 and 2 Phil, and Mary, c. 13, s. 5; and the 2 and 3 Phil, and IMary, c. TO, s. 2, gave justices who examined i>ersons charged with felony, ^ authority to bind all such by recognizances as do declare anything material to prove ' the felony, and contained no provision as to what was to be done if the witness refused to be bound. Now, in Bennett v. Watson, 3 Maule & S. 1, it was held that under those statutes a justice might law- I 718 THE CRIMINAL STATUTE LAW. 14 fully commit a person who was a material witness upon a charge of felony brought before him, and who refused to appear at the Sessions to give evidence, in order that her evidence might be secured at the trial, and Danipier, J., said ' the power of commitment is absolutely neces- sary to the existence of the Statute of Pliil. and Mary ; for unless thei-e were such a power, every person would of course refuse to enter into a recognizance, and the magistrate could not compel him ; and then, if he could further avoid being served with a subpoena, the delin- quent might escape unpunished.' This is a very much stronger case than the case of a convict required to find sureties, for he is already in prison, whereas tl>e witness is at liberty, and, therefore in his case, the power both to apprehend and commit has to be implied." ''It is perfectly clear, then, that the Courts have power under these clauses to order an offender to be de- tained in prison until ho pay a fine and find sureties. But supposing a provision had been introduced expressly empowering the Court to award imprisonment until the fine was paid and the sureties found, it woiUd have made these clauses inconsistent with s. 5 of the offences against the Person Act, which follows s. 9 of the 9 Geo. 4, c, 31 •, and if that had been altered likewise, both would have been made inconsistent with Lord Campbell's Libel Act, and the other Acts containing similar clauses. To this answer Mr. Saunders replied, ' Taking Mr. Greaves' ex- position to be correct that the common law incident of imprisonment attaches upon non-payment of the fine, the objection, that the imprisonment is indefinite still re- mains in force. If the fine is not paid, is imprisonment in default to be everlasting ? ' We rejoin that imprison- ment for non-payment of a fine under this clause, is and was intended to be exactly the same as for non-payment MALICIOUS INJURIES TO rR0P1.4TY. 719 of a fine upon a conviction for any common law misde- meanor ; that the object of this clause in this respect was to place all misdemeanors against these Acts pre- cisely on the same footing as Common law misdemeanors ; that no complaint had ever been made of the common law on this subject, and therefore, there was not only no reason for any alteration in it, but its long use without objection aftbrded a very good ground for extending it to all similar cases, and that any alteration in these Acts would have rendered the law on the subject inconsistent ; for it would have rendered the law different in misde- meanors under these Acts from what it was with like offences at common law." '' 4. But, Mr. Saunders asked, is the offender to be committed to hard labour, and for a time certain ? Un- doubtedly neither the one nor the other. The imprison- ment for non-payment of a fine or not finding sureties is not by way of punishment, but in order to compel the payment of the one and the finding of the otlier, and therefore it is merely imprisonment until he pay the fine or find the sureties, exactly the same as it is in cases of conmion law misdemeanors. To this Mr. Sau nders replied, that ^ it was further objected that upon imprisonment in default of paying the fine, the Court has no power to impose hard labour. This Mr. Greaves admits.' Now, this is a misrepresentation. Mr. Saunders originally merely asked, < Is it (the imprisonment) to be with or without hard labour!' and we, having answered that question conclusively, Mr. Saunders puts this new objec- tion, and adds, ' surely the power of imposing hard labour would be in many cases an active stimulant towards accomplishing the end desired.' It might just as well be said that the Court ought to have been empowered to order the defendant to be whipped every day until he paid 720 THE CRIMINAL STATUTE LAW. thf? fine, which would, we conceive, have been a more active stimuhint thim hurd labour. '1 iir question is not, however, what is the beststimuhiuL to make the offender pay tht' line; but what is the proper substitute for non- payment of the Hue. liy the common iuvv, simple im- prisonment has always been that substitute. We hii\e shown that in summary cases, however, wherever justices luive authority eitlier to fine, and imprison, whether with or without hard labour, they never ought to have power to award imprisonment with hard iiiijourfor non-payment of a tine, Introdudiov to \st Ed., ante, P. xxxiiL, and our reasoning is conpletely supported by the high Authority of Chief Justice Cockburn, in Reg. \ Will- mott, 1. E. B. & 8. 27. We will now apj)]y the same reasoning to imprisonment for non-payment of a line on conviction for a misdemeanor against these ActN, and we cannot do better than take the example of dog-stealing under the 24 & 25 Vict., c. 9(), s. 18 ; by which any person who steals a dog may either be impriscjed witli or without hard labour for not exceeding six months or shall forfeit over the value of the i^og not exceed- ing 201., and by sec. 107, in default of payment he may be imprisoned either with or without hard labour. For a second otii'uce of dog-stealing, the defendant is to be guilty of a misdemeanor, and liable to imprisonment for not exceeding eighteen months, with or without hard labour, and by the general clause in question the Court may impose a fine either in addition to or in lieu of these punishments. Now, if the Court under this clause adjudges imprisonment without hard labour, it is tanta- mount to adjudging that the offence does not deserve even imprisonment, and to give the Court power to imprison with hard labour for non-payment of the fine would be almost equivalent to giving it power, tino fiatu, to MALICIOUS 1NJUUIE8 TO PROPERTY. 721 adjudge the ofTender not deserving and deserving of hard labour. — Nay, mon", it would be givino- th:^ Court power, after adjudging tliat the defcndanr m<^'ely deserved to be fined for an indictable olKnce, to adjudgo hiin to bo imprisoned with hard labour for mere non- piiyment of money, no criminal otfenco at all. Mr. Saunders, however, says that ^suoh an anonmly ' as not giving the Tourt power to award li.ird labour for non- payment of a fine imposed for a second ottence of dog- stealing, " clearly shows the defectiveness of the section ;* and he arrives at this conclusion thus. After statin"- tlu> punishment for the first offence, he proceeds : ' then i?* defanit of payment he may, under Jervis's Act, 11 & J2 Vict., c. 43, s. If>, be committed to prison with or with- out hard labour.' Tii whicii short passage there are twomis-statements. That section only applies where by the Statute in that behalf, no mode of enforcing the payment of f.e penalty is provided. Now sec. 107 of the Larceny Act does provide for enforcing the payment of the penalty for dog-stealing ; and consequently Jervis's Act has nothing to do with the case. But even if ic did apply, a distress warrant nuist be issued in the first instance, unless its issuing would be ruinous to tho defendant, or it appeared that he had no goods. It is therefore incorrect to state generally that the defendant may under that section be committed at all. So that we- have both a wrong Statute cited, and that Statute wrongly stated. It is true that a siim'lar argument; might have been founded on sec. 107of the Larceny Act, but it would be completely answered by what we have said here and in the Introduction." "5. Next, Mr. Saunders said that ^the Court will have no authority to take the recognizance of one surety only since the Statute speaks only of sureties.' Now IMAGE EVALUATION TEST TARGET (MT-S) fe A :/. i/jL 1.0 I.I 1.25 |50 ""^ 12.5 2.2 2.0 JA 11116 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 M « ,^ A \ <^ \_ o^ I/. rf> 722 THE CRIMINAL STATUTE LAW. .*'J« the Court of Queen's Bench never takes less than two sureties in any case, and generally four in cases of felony, and with very good reason, for one surety may die, become insolvent, or quit the country ; but it is much less likely that two or more sureties should do so. There- fore, there was an excellent precedent founded on good reason foi requiring more than one surety. The Select Committee of the Commons introduced the power to take the offender's own recognizances. Mr. Saunders in reply admits ' that the Queen's Bench usually requires two sureties,' ' but thinks that circumstances may occur, par- ticularly in the case of a young person, where one surety (the parent) need alone be required.' We reply that the admitted practice, invariably followed from time immemorial by the Court of Queen's Bench, was an infinitely better guide to follow than any other." "Lastly, Mr. Saunders said that the proviso, which was introduced by the Committee of the Commons; ^ means that if any person is required to find sureties for more than a year, he shall not be imprisoned for not doing it. According to this reading, every person required to find sureties for a less term than a year would be liable to be imprisoned for life unless he found them : whilst a person required to find them for more than a year would not be liable to be imprisoned at all. The obiector, therefore, may well admit that that cannot be the intention of the section. The Committee of the Commons thought that the clause clearly meant that no one was to be imprisoned for more than a year for not finding sureties. They framed it, and they are at least as competent as the objector to understand its meaning. In reply Mr. Saunders says, that Mr. Greaves admits that the meaning of the Legislature was 'that no person shall be imprisoned under this clause for any period exceeding one MALICIOUS INJURIES TO PBO^BRTr. •723 year for not finding sureties. That being so, we wiU only add, that it is very much to be regretted that the British Legislature has not said what it meant, instead of saying what It did not mean.' But has it done so ? The words are, 'No person shall be imprisoned under this clause for not finding sureties for any period exceeding one year, and the objection rests on reading 'sureties' together with " for any period exceeding one year " Now 'sureties to keep the peace or to be of good behaviour lor any term,' is a perfectly well-known expression ; but 'sureties for any period' is a very unusual, if not an altogether unknown expression, and it therefore ought not to be supposed to be used in any case, especially where it makes nonsense of a sentence. Again, in pro- nouncing sentence nothing is more common than to mseri; the cause of imprisonment between the word * imprisoned,' and the term of imprisonment awarded e.g., 'The sentence of the Couri;, is that you be impnsoned for this your offence for the tern, of one year,' and if the clause be so read it is perfectly free from objection. If the clause had run ' imprisoned for not paying a fine for any period exceeding one year,' no doubt would have existed as to its meaning, and there is equally little as to the meaning of the clause as it stands j for where a clause is capable of being read in two ways, one of which leads to a manifest absui-dity, and the other makes perfectly good sense, it is obvious that the latter is the right reading." " We said and repeat, that there was nothing whatever in any one of these numerous objections, and unques- tionably nothing to justify a writer in saying that the clause was ' so slovenly d^-awn ;' ' it is astonishing that a section so loose as this one should have been permitted to have found its way into this Act ;' ' taken altogether vv 724 THE OIIIMINAL STATUTE LAW. If this section is a most unfavourable specimen of legal workmanship, and will cause very great embarrassments to those whose duty it will be to carry it into effect.' " " Not satisfied, however, with * attacking' this clause in the Law Times, Mr. Saunders returns to the charge in his and Mr. Cox's Edition of the Statutes, p. 97, where he starts the additional objection, that ' the sec- tion contains new and very extensive powers.' Surely Mr. Saunders cannot but know that the power to fine and require sureties for keeping the peace and being of good behaviour on a conviction for misdemeanor is one of the oldest powers known to the common law. Then Mr. Saunders says, ^ it may well be questioned whether when a criminal has suffered his appointed punishment, it is judicious to impose upon him the further inconven- ience of ^ "viding bondsmen for his future good behav- iour.' It would be enough to answer that such has been the case in common law misdemeanors from time immemorial, and no one ever heard a complaint against it 5 but it may be well to add, that neither fines nor sureties are ever awarded * when a criminal has suffered his appointed punishment ;' on the contrary, the Court always considers them as part of the punishment, and this power is always used in mercy towards the criminal, and a less term of imprisonment awarded, where it is exercised. In fact, instead of the clause being open to this objection, it is a most humane and merciful provi- sion founded on that ' nursing mother,' the common law." "Mr. Saunders again returns to the chaige, p. 244, with the further objection that this clause ' in effect amounts to a bestowal of unlimited powers of mitigation of punishment, and when we find that unlawfully and maliciously wounding, &c., &c.;; are all misdemeanors^ MALICIOUS INJURIES TO PROPERTY. 725 the powers thus given to impose a fine in lieu of any other punishment, looks very like jesting with criminal punishment.'— This is a note to sec. 71 of the offences against the Person Act. Had Mr. Saunders forgotten that by sec. 5 of the same Act any person convicted of manslaughter (a crime infinitely greater in many cases than any misdemeanor) may be sentenced to pay a fine either in addition to or without any other punishment ? So under the 9 Geo. 4, c. 31, s. 9, the Court might have awarded a fine on a conviction for manslaughter, with- out any other punishment." Greaves' Cr. Acts, 6. Sect. 75.— Every oflfence hereby made punishable on summary conviction may be prosecuted in the manner directed by the Act of this Session respecting the duties of Justices of the Peace out of sessions in relation to summanj convictions and order, so far as no prov.uon is hereby made for any matter or thing which may be required to be done in the course of such prosecution.— 24-25 Vict., ch. 97, s. 76, Imp. The Act referred to is the 32-33 Vict., ch. 31, (1869.) Sect. 76.— This Act shall commence and take eflfect on the first day of January, one thousand eight hundred and seventy. AN ACT RESPECTING PERJURY. 32-33 Vict., ch. 23. Whereas it is expedient to assimilate, amend and con- solidate the Statute law relating to perjury, in foice in the several Provinces of Quebec, Ontario, Nova Scotia and New Brunswick, and to extend the same as so conso- lidated to all Canada ; Therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows : Sect. 1. — Perjury or subornation of perjury is a mis- demeanor : and any person guilty thereof shall be liable to be imprisoned in the Penitentiary for any term not ■exceeding fourteen years and not less than two years, or to be imprisoned in any other gaol or place of confinement for any term less than two years, and to pay such fine as the Court may award. Sect. 2. — In every case in which, by any" Act or Le ■ now or hereafter to be in force in the Dominion of Canada, or in any Province forming part of the Dominion of Canads, 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 some or any person, if any person having in any such case taken or made any oath, affirmation or declaration so required or authorized, knowingly, wilfully and corruptly, upon such oath, affirmation, or declaration. THE PERJURY ACT. V27 deposes, swears to or makes any false statement as to any such fact, matter or thing ; or if any person know- ingly, 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 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 state '. in such affidavit, affirmation or declaration, such person shall be deemed to be guilty of wilful and corrupt perjury, and be punished accordingly ; Provided that nothing herein contained shall affect any case amounting to perjury at the common law, or the case of any offence in respect of which other or special provision is made by any Act. Sect. 7. — All evidence and proof whatsoever, whether given or made orally, or by or in any affidavit, affirma- mation, declaration, examination or deposition, shall be deemed and taken to be material with respect to the liability of any person to be proceeded against and pun- ished for wilful and corrupt perjury, or for subornation of perjury. Perjury, by the common law, appears to be a wilful false oath by one, who being lawfully required to depose the truth in any proceeding in a " cmrt " of justice, swears absolutely in a matter of some consequence to the point in question, whether he be believed or not. — 3 Russell, I. I 728 THE cm.MlNAL STATUTE LAW Hawkins, Vol. 1, p. 429, has tlie word "coe»t 'I V. i Sect. 4, ch. 71, 31 Vict., also declares that oaths taken in virtue of any Provincial Act shall be as binding as if taken under an Act of the Dominion Parliament, and if ftUsely taken will be subject to the same rules concerning i J J * Sect. 7, 32-33 Vict. ch. 23, supra, is an important alteration of the law on perjury as it stood before with us, and as it stands now in England. As stated before by the Common Law, to constitute perjury, the false swearing must be, besides the other requisites, in a mat- ter material to the point in question. The above section may be said to have virtually abolished this necessary ingredient of perjury. A reference to the following late decisions, in England, will show the wisdom of the Can- adian legislation on this matter: Reg. vs. Tate, 12 Cox 7 J Reg. vs., Lewis, 12 Cox, 163 j Reg. vs. Holden, 12 Cox, 166. In these three cases, the defendants, guilty of perjury in foro conscientice, were acquitted, because the falsehoods by them said upon oath were not material to the contestations, in which their evidence had been given. Most extraordinary system, of which we may well be satisfied to be delivered. This clause 7 of our Perjury Act has been taken from clause 272 of the Criminal Laws of Victoria, Australia. As our law now stands, perjury may be defined a false oath, knowingly, wilfully and corruptly given by one, in some judicial proceeding, or on some other occasion where an oath is imposed, required, or sanctioned by law. Ist. There must be a latvful oath. And therefore, it must be taken before a competent jurisdiction or before an officer who had legal jurisdiction to administer the particular oath in question. And though it is sufficient prim4 facie to show the ostensible capacity in which the: I THK PCRJURT ACT. 731 judge or officer acted when the oath was taken, the pre- sumption may be rebutted by other evidence, and the defendant, if he succeed, will be entitled to an acquittal. —8 Chitty, 304 ; Archbold, 815. 2nd. The oath must be false. By this, it is intended that the party must believe that what he is swearing is fictitious; for, it is said, that if, intending to deceive, he asserts of his own knowledge that which may happen to be true, without any knowledge of the fact, he is equally criminal, and the accidental truth of his evidence will not excuse him. — 3_^Chitty, 303. And a man may be indicted for perjury, in swearing that he believes a fact to be true, which he must know to be false. — R. vs. Pedley, 1 Leach, 327. 3rd. The false oath must be knowingly, ivilfully, and corruptly taken. The oath must be taken and the false- hood asserted with deliberation and a consciousness of the nature of the statement made, for if it seems rather to have been occasioned by inadvertency or surprise, or a mistake in the import of the question, the party will not be subjected to those penalties which a corrupt motive alone can deserve. — 2 Chitty, 303. If an oath is false to the knowledge of the party giving it, it is, in law, wilful and corrupt. — 2 Bishop, Cr. L. 1043 and seq. It hath been holden not to be material, upon an indict- ment of perjury at common law, whether the false oath were at all credited, or whether the party in whose pre- judice it was intended were, in the event, any way aggrieved by it or not ; insomuch as this is not a prose- cution grounded on the damage of the party but on the abuse of public justice — 3 Bum's Justice, 1227. Indictment for perjury. — The Jurors for Our Lady the Queen, upon their oath present, that heretofore, to wit^ at the (assijues) holden for the County {or District) of ii 732 THE CRIMINAL gTATUTK LAW. ^i It ' ft! i r on tlie . . . (lay of in the year of Our Lord, one thousiiiid before {one of thcjiidfjes of Our Lady the Queen) a certjiin issue between one E. F. and one J. H. in a certain action of covenant waH tried, upon wliich trial A. B. appeared ana witness for and on behalf of the said K. F. and was then and there duly sworn before the said , and (hd then and there, upon liis oath aforesaid, lalsely, wilfully and corruptly depose and sivear in substance and to the effect following, " that he saw the said G. 11. dtdy execute the deed on which the said action tvas brought,^^ whereas, in truth, tlie said A. B. did not see the said O.H. execute the said deed, and the said deed was not executed by the said G. II., and the said A. B. did therel)y conunit wilful and corrupt perjury.— 'Schedule A of the Procedure Act of 18G9. ►Section 9, of ch. 23, 32-3:3 Vict., enacts as follows, concerning the form of indictment in perjury : "In any indictment for perjury, or for unlawfully, illegally, falsely, fraudulently, deceitfully, maliciously or corruptly taking, making, signing or subscribing any oath, affirmation, declaration, affidavit, deposition, bill, answer, notice, certificate or other writing, it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what Court or before whom the oath, afhrmation, declaration, affidavit, deposition, bill, answer, notice, certificate or other writing was taken, made, signed or subscribed, without setting forth the bill, answer, informt tion, indictment, declaration, or any part of any proceeding either in law or equity, and without setting forth the commission or authority of the Court or person before whom such ofll'ence was committed." — 14-15 Vict, ch. 100, sect. 20, Imp. No indictment for perjury can be preferred, unless one or other of the preliminary steps required by 32-33 ^^^^^^M'P-'^ ^^lA ^H^B-- .r ^^^^K 7 ■ t I THE I'KIlJUllY ACT. 733 Vict., ch. 29, Beet. 28, (Procodurc Act of IfiGO) ban boon tdkon. rerjury is not tiiablt! at Quartor Sessions. — 2 Haw- kins, ch. 8, sect, as ; H. vs. liaiiiton, 2 8tr. 1088 ; Reg. vs. Yarrington, 1 8alk. 40G ; Dickinson's Quarter Ses- sions, 16(i ; R. vs. Iliggiiis, 2 East R. 18. The indictment must allege that the defendant swore falsely, wilfully and corruptly ; where the word felon- iotisly was inserted instead of fahclif, the indictment, thougli it alleged that the defendant swore wilfully, conuptly and maliciously, was held bad in substance, and not amendable. — R. Oxley, 3 (.*. & K. 317, Cresswell J. — Archbold, 812. ]f the same person swears contrary at different times, it should be averred on a* 'lich occasion he swore wil- fully, falsely and corruptly. — R. vs. llarris, 5 B. & Aid* 92G. As to assignments of perjury, the indictment nmst assign positively the manner in which the nuitter sworn to is false. A general averment that the defendant false- ly swore, etc., etc., upon the whole matter is not sulH- cieut : the indictment must proceed by special aver- ment, to negative that wliich is false. — 3 Burn's Justice, 1235. Proof. — It seems to have been formerly thought that in proof of the crime of perjury, two witnesses were necessary ; but this strictness, if it was ever the law, has long since been relaxed ; the true principle of the rule being merely this, that the evidence must be something more than sufficient to counterbalance the oath of the prisoner, and the legal presumption of his innocence. The oath of the opposing witness therefore will not avail, unless it be corroborated by material and independent circumstances ; for otherwise there would 1 1 ! t; i ■ i 1 f ll llH i '1 iji il jH '\m 1 II 1 I 734 THE CRIMINAL STATUTE LAW. be nothing more than the oath of one man against another, and the scale of evidence being thus in one sense balanced, it is considered that the jury cannot safely convict. So far the rule is founded on substantial justice. But it is not precisely accurate to say that the corroborative circumstances must be tantamount to another witness : for they need not be such as that proof of them, standing alone, would justify a conviction, in a case where the testimony of a single witness would, 3uiiice for that purpose. Thus, a letter written by the defendant, contradicting his statement on oath, will render it unnecessary to call a second vntness. Still, evidence confirmatory of the single accusing witness in some slight particulars only, will not be sufficient to war- rant a conviction, but it muft at least be strongly corro- borati>a of his testimony, or to use the quaint but energetic language of Chief Justice Parker, " a strong and clear evidence, and more numerous than the evidence given for tb : defendant." When several assignments of perjury are included in the same indictment, it does not seem to be clearly settled, whether, in addition to the testimony of a single witness, corroborative proof must be given with respect to each ; but the better opinion is that such proof is necessary ; and that too, although all the perjuries assigned were committed at one time and place, i'oi instance, if a person, on putting in his schedule in the Bankruptcy Court, or on oth^r the like occasion, has sworn that he has paid certain creditors, and is then indicted for perjury on several assignments, each specifying a particular creditor who has net been paid, a single witness with respect to efAch debt will not, it seems, suffice, though it may be very difficult to obtain any fuller evidence. The principal that one witness, with corroborating circumstances, is sufficient to estab- m THE PERJUEY ACT. 735 lish the charge of perjury, leads to the conclusion, that without any witness directly to disprove what is sworn, circumstances alone, when they exist in a documentary shape, may combine to the same effect ; as they may combine, though altogether unaided by oral proof, except the evidence of their authenticity, to prove any other fact connected with the declarations of persons or the business of life. In acccrdance with these views, it has been held in America, that a man may be convicted of penury on documentary and circumstantial evidence alone, first, where the falsehood of the matter sworn to by him is directly proved by written evidence springing from himself, with circumstances showing the corrupt intent ; secondly, where the matter sworn to is contradicted by a public record, proved to have been well knov/n to the prisoner, v/hen he took the oath ; and thirdly, where the party is charged with takmg an oath, contrary to what he must necessarily have known to be true, the falsehood being shown by his own letters, relating to the fact sworn to, or by any other writings, which are found in his possession, and which have been treated by him as containing the evidence of the fact recited in them. If the evidence adduced in proof of the crime of perju- rj consists of two opposing statements by the prisoner, and nothing more, he cannot be convicted. For, if one only was delivered under oath, it must be presumed, from the solemnity of the sanction, that the declaration was the truth, and the other an error or a falsehood ; though, the latter, being inconsistent with what he has sworn, may form important evidence, with other circum- stances, against him. And if both the contradictory statements were delivered under oath, there is still no- thing to show which of them is false, when no other evidence of the falsity is given. If, indeed, it can be .1 1] 736 THE CRIMINAL STATUTE LAW. shown that, before making the statement on which per- jury is assigned, the accused had been tampered with, or if any other circumstances tend to prove that the state- ment offered as evidence against the prisoner was true, a legal conviction may be obtained, and provided the na- ture of the statement was such, that one of them must have been false to the prisoner's knowledge f slight corrobo- rative evidence would probably be deemed sufRcient. But it does not necessarily follow that because a man has given contradictory accounts of a transaction on two oc- casions, he has therefore committed perjury. For cases may well be conceived in which a person might very honestly swear to a particular fact, from the best of his recollection and belief, and might afterwards from other circumstances be convinced that he was wrong and swear to the reverse, without meaning to swear falsely cither time. Moreover when a man merely swears to the best of his memory and belief, it of course requires very strong proof to show that he is wilfully perjured. The rule re- quiring something more than the testimony of a single witness on indictments for perjury, is confined to the proof of the falsity of the matter on which the perjury is assigned. Therefore the holding of the Court, the pro- ceedings in it, the administering the oath, the evidence given by the prisoner, and in short, all the facts, exclu- sive of the falsehood of the statement, which must be proved at the trial, may be established by any evidence that would be sufficient, were the pris*oner charged with any other offenr^^. For instance, if the false swearing be that two persons were together at a certain time, and the assignment of perjury be that they were not together at that time, evidence by one witness that at the time named the one person was at London, and by another witness that at the same time the other nerson was in York wi!! THE PERJURY ACT. •73T be sufficient proof of the assignment of perjury. — 2, Tay- lor, on Evidence, par. 870 and seq. On an indictment for perjury alleged to have been committed at the Quarter Sessions, the chairman of the Quarter Sessions ought not to be called upon to give evidence as to what the defendant swore at the Quarter Sessions. — Reg. vs. Gazard, 8 C. & P. 595. But the above ruling is criticized by Greaves, note w, 3 Rubs. 86, and Byles, J., in Reg. vs. Harvey, 8 Cox, 99, said that though the judges of Superior Courts ought not to be called upon to produce their notes, yet the same objection was not applicable to the judges of inferior Courts, especially where the judge is willing to appear. — a Burn's Justice, 1243. The following is a list of the principal cases, on perjury, lately reported, in England. The difference now existing between the English law and our own law thereon renders these decisions less interesting for us ; however, in some of these cases, as published, will be found the discussion of various questions of law, on this subject of perjury, which may be useful to the Canadian practitioner: — Reg. vs. Tyson, 11 Cox, 1; Reg. vs. Smith,. 11 Cox, 10 ; Reg. vs. Naylor, 11 Cox, 13 ; Reg. vs. Wes- tern, 11 Cox, 93 ; Reg. vs. Alsop, 11 Cox, 264 ; Reg. vs, Hodgkins, 11 Cox, 365; Reg. vs. Bawn, U Cox, 540; Reg. vs. Chugg, 11 Cox, 558; Reg. vs. Buttle, 11 Cox, 566; Reg. vs. Timms, 11 Cox, 645 ; Reg. vs. Dunning, 11 Cox, 651 ; Reg. vs. London, 12 Cox, 50 ; Reg. vs. Fletcher, 12 Cox, 77 ; Reg. vs. Crawley, 12 Cox, 162 ; Reg. vs. Willis, 12 Cox, 164. In Reg. vs. Hook, Dears, & B. 606, will also be found an interesting discussion, on the evidence necessary upon an indictment for perjury. Sect. 3 (as amended by 33 VicL. ch. 26.) — Any per- r\ 738 THE CRIMINAL STATUTE LAW. «on who wilfully and corruptly makes any false affidavit, affirmation or declaration, out of the Province in which it is to be used, but within the Dominion of Canada, before any functionary authorized to take the same for the purpose of being used in any Province of Canada, shall be deemedguiltyof perjury in like manneras if such false affidavit, affirmation or declaration had been made in the Province in which it is used, or intended to be used, before a competent authority j and such person may be dealt with, indicted, and tried, and if convicted may be sentenced, and the offence may be laid and charged to have been committed, in that district, county or place in which he has been apprehended or is in custody. Of course, the last part of this section is only permis- sive, and the defendant may also be tried and -^ con- victed, be sentenced, in the district, county va place where the offence was in fact committed. PERJURIES IN INSURANCE CASES. Sect. 4. — ^Any affirmation, affidavit or declaration required by any Fire, Life or Marine Insurance Company authorized by law to do business in Canada, in regard to any loss of property or life insured or assured therein, may be taken before any Commissioner, authorized by any of Her Majesty's Superior Courts to take affidavits, or before any Justice of the Peace, or before any Notary Public for any Province of the Dominion ; and any such officer is hereby required to take such affirmation, affida- vit or declaration. Sect. 6. — Any person knowingly, wilfully and cor- ruptly making any affirmation, affidavit or declaration required by any Fire, Life or Marine Insurance Com- pany, authorized by law to do business in Canada, claim- ing to be entitled to anv Insurance monev in rfisnflr.^ nf I THB PBRJUHT ACT. 739 any loss of property or life insured or assured therein or on behalf of any person making such claim containing any false statement of fact, matter or thing in regard to such loss of property or life, shall be guilty of wilful and corrupt perjury. PROSECUTION FOR PERJURY ORDERED BY JUDGE, &C., &C. Sect. 6. — It shall be lawful for any Judge of any Superior Court of law or of equity, or for any judge of any Court of record, or any Commissioner before whom any inquiry or trial is held, and which 'ae is by law required or authorized to hold, in case it appears to him that any person has been guilty of wilful and corrupt perjury in any evidence given, or in any affidavit, affirmation, declaration, deposition, examination, answer or other proceedings made or taken before him, to direct such persons to be prosecuted for such perjury, in case there appears to such judge or commissioner a reasonable cause for such prosecution, and to commit such person so directed to be prosecuted until the next term, sittings, or session of any Court having power to try for perjury, in the jurisdiction within which such perjury was com- mitted, or to permit such person to enter into a recogni- zance with one or more sufficient surety or sureties con- ditioned for the appearance of such person, at such next term or session, and that he will then surrender and take his trial and not depart the Court without leave, and to require any person such judge may think fit toenter into a recognizance conditioned to prosecute or give evidence against such person so directed to be prosecuted as aforesaid. — 14-15 Vict., ch. 100, s. 19, Imp. The Imperial Statute authorizes the judge to commit such person, unless such pers>- shall enter into a recog- -- a' ' ~ "' ""' Vtciiti-J.i ciii kjitttuLc ^ivca WW I i;: I ill r40 THE CRIMINAL STATUTE LAW. power to commit or to permit such person to enter into a recognizance and give sureties. Whether intentional or not, this variance constitutes an important deviation from the English Act. Greaves remarks on this clause : " The crime of per- jury has become so prevalent of late years, and so many cases of impunity have arisen, either for want of prose- cution, or for defective prosecution, that this and the following sections {sects. 9 and 10 of Canadian Statute) were introduced to check a crime, which so vitally affects the interests of the commnniiy. " It was considered that by giving to every Court and person administering oaths a power to order a prosecu- tion for perjury at the public expense, coupled with a power of commitment in default of bail, many persons would be deterred from committing so detestable a crime, and in order to effectuate this object, the present clause was framed, and as it passed the Lords, it was much better calculated to effect that object than as it now stands. " As it passed the Lords it applied to any justice of the peace. The Committee in the Commons confined it to justices in petty and special sessions,— a change much to be regretted, as a larg*e quantity of business is trans- acted before a single justice or one metropolitan or sti- pendiary magistrate who certainly ought to have power to commit under this clause for perjury committed before them. " Again, as the clause passed the Lords, if an affidavit, &c., were made before one person, and used before another Judge or Couri^, &c., and it there appeared that perjury had been committed, such Judge or Court might commit. The clause has been so altered, that the evi- dence must be given, or the affidavit, &c., made before THE PERJURY ACT. 741 the Judge, &c., who commits. The consequence is, that numerous cases are excluded ; for instance, a man swears to an assault or felony before one justice, and on the hearing before two it turns out he has clearly been guilty of perjury, yet he cannot be ordered to be prose- cuted under this clause. Again, an affidavit is made before a commissioner, the Court refer the case to the Master, and he reports that there has been gross perjury, or the Court see on the hearing of the case before them that there has been gross peijury committed, yet there is no authority to order a prosecution under this clause. So, again a man is committed for trial on the evidence of a witness which is proved on the trial to be false beyond all doubt, yet if such witness be not examined, and do not repeat the same evidence on the trial, the Court cannot order him to be prosecuted. "Lastly, the Court before whom any person istri.fd for perjury under this clause, was hound, as the clause origin- ally stood, to grant the costs. The committee of the Commons inserted the words < unless such last mentioned Court shall specially otherwise direct,' so that, in point of law, as the clause now stands, it is clearly discretion- ary with that Court whether it will grant costs or not. However, the form o^the clause indicates, and it certainly was the intention of the Committee of the Commons that costs should be granted in every case as a matter of course, unless there were some special and cogent reason to prevent it ; and it is to be hoped that the Courts will uniformly carry out such intention. It is perfectly idle to imagine that perjury will ever be sufficiently checked as long as it remains uncertain whether a party is to be effectively prosecuted for it or not. A prosecution for perjury under this clause stands on a very different footing from ordinary prosecutions. The Court may 742 THB CRIMINAL STATUTE LAW. 1 i compel any one against his will to prosecute, and such prosecution necessarily imposes expenses on the prosecu- tor that are much greater than in ordinary cases ; an attorney, if not counsel, must be employed to frame the indictment and prepare the evidence. To deprive the pro- secutor of his costs upon the ground that the prosecution ought not to have been ordered, would be extremely un- just, as it would be punishing one man lor the error of another. Tlie clause is silent as to what ground is to warrant a special order ; the only reasonable ground wimld appear to be, that the prosecutor has himselt bt^'U negligent, or misconducted himselt in the prosecution. If such were the case, no doubt he might be justly de- prived of the costs. "It is to be observed, that before ordering a prosecution under this clause, the Court ought to be satisfied not only that perjury has been committed, but that there is a < reasonable cause for such prosecution.' Now it nnist ever be remembered that two witnesses, or one witness and something that will supply the i)lace of a second witness, are ahsoluttly essential to a conviction for perjuiy. The Court, therefore, should not order a prosecution, unless it sees that such pr^of is capable of being adduced at the trial ; and as the Court has tjie power, it would be prudent, in every case, if practicable, at once to bind over such two witnesses to give evidence on the trial^ otherwise it may happen that one or both may not be then forthcoming to give evidence. It would be prudent also for the Court to give to the prosecutor a minute of the point, on which in its judgment the perjury had been committed, in order to guide the framer of the indict- ment, who possibly may be whoUy ignorant otherwise of the precise ground on which the prosecution is ordered. It is very advisable also that where the perjury is com- THE PERJURY ACT. 743 mitted in giving evidence, such evidence should be taken down in writing by some person who can prove it upon the trial, as nothing is less satisfactory or more likely to lead to an acquittal than that the evidence of what a person formerly swore should depend entirely upon mere memory. Indeed, it may well be doubted, whether it would be proper to order a prosecution in any case under this Act where there was no minute in writ- ing of the evidence taken down at the time. " Again, it ought to be clear, beyond all reasonable doubt, that perjury has been wilfully committed before a prosecution is ordered." — Lord CampbelVs Ads, hy Greaves, 22. By the Canadian Act, this power is not given to Jus- tices of the Peace, nor is there any enactment as to costs, in such prosecutions. VENUE IN CASES OF PERJURY. Sect. 8.— Any person accused of perjury may be tried, convicted and punished in any district, county or place where he is apprehended or is in custody. This is permissive only, and any person accused of perjury may be tried, convicted and punished in the dis- trict, county or place where the offence was committed. This section does not appear to extend to subornation of perjury. PROOF. Sect. 11. — A certificate, containing the substance and eiFect only, omitting the formal part of the indictment and trial for any felony or misdemeanor, purporting to be signed by the clerk of the Court or other officer having the custody of the records of the Court whereat the in- dictment was tried, or among which such indictment has been filed, or by the deputy of such clerk or other 714 THE CRIMINAL STATUTE LAW. officer, sliiill, upon trial of an indictment for perjury or subornation of penury, be sullicient evidence of the trial of such indictment for felony or misdemeanor, witliout proof of the signature or official character of the person appearing to have signed the same. — 14-15 Vict., ch. 100, s. 22, Imp. It is to be observed that tliis section is merely reme- dial, and will not prevent a regular record from being still admissible in evidence, and care must be taken to have sucli record drawn up in any case where the particular averments in the former indictment may be essential. — Lord CampbcWs Acts, hy Greaves, 21. SUBORNATION OF PERJURY. % Sect. 10. — In every indictment for subornation of perjury, or for corrupt bargaining or contracting with any person to commit wilful and corrupt perjury, or for inciting, causing or procuring any person unlawfully, vrilfully, falsely, fraudulently, deceitfully, maliciously or corruptly, to take, make, sign or subscribe any oath, affirmation, declaration, affidavit, deposition, bill, an- swer, notice, certificate, or other writing, it shall be suffi- cient, whenever such perjury or other offence aforesaid has been actually committed to allege the offence of the person who actually committed such perjury or other offence, in the manner hereinbefore mentioned, and then to allege that the defendant unlawfully, wilfully and corruptly, did cause and procure the said person^ the said offence in the manner and form aforesaid to do and commit, and whenever such perjury or other offence aforesaid has not actually been committed, it shall be sufficient to set forth the substance of the offence charged upon the defendant, without setting forth or averring any of the matters or things hereinbefore ren- THE PEnJURY ACT. 745 dored unnecessary to bo set forth or averred in the case of wilful and corrupt perjury.— 14-15 Vict., ch. 100, s. 21, Imp. Subornation of perjury is a misdemeanor, as perjury itself and subject to the same punishment.— See remarks under sect. 1, ante. Sect. 7, ante, declaring all evidence whatever material with respect to perjury, also applies to subornation of perjury. Sect. 11, ante, as to certificate of indictment and tnai, applies also to subornation of perjury. Stict. 8, ante, allowing perjury to be tried, where the offender is apprehended or is in custody does not appear to apply to subornation of perjury. Subornation of perjury, by the common law, seems to be an offence in procuring a man to take a false oath, amounting to perjury, who actually taketh such oath.— 1 Hawkins, 435. But it seemeth clear that if the person incit^ul to take such an oath do not actually take it, the person by whom he was so incited is not guilty of subornation of perjury, yet it is certain that he is liable to be punished, not only by fine, but also by infamous corporal punishment— 1 Hawkins, loc. cit. An attempt to suborn a person to commit perjury upon a reference to the judges, was unanimously holden by them to be a misdemeanor. — 1 Russell, 85. And, upon an indictment for subornation of perjury if it appears, at the trial, that perjury was not actually committed, but that the defendant was guilty of the attempt to suborn a person to commit the offence, such defendant may be found guilty of the attempt.— 32-33 Vict., ch. 29, sect. 49, (Procedure Act, 18G9.) In support of an indictment for subornation, the re- 746 TUB CBIMINAL aiATUTf LAW. ;i cord of the witness's conviction for perjury is no evidence ugainst tlio suborners, but the oHbuce of the perjured witness must bo again regularly proved. — Although several persons cannot be joined in an indictment for perjury, yet for subornation of perjury, they may.— 3 Burn's Justice, 1246. Indictment f same as indictment for perjury to the end, and then proceed: — And the Jurors aforesaid upon their oath aforesaid further present, that before the connnit- ting of the said offence, by the said A. B., to wit, on the day of at CD. unlawfully, wil- fully and corruptly did cause and procure the said A. B. to do and commit the said offence in the manner aivl form aforesaid.— 5'c/fedfMfe A, of the Procedure Act of iS&9. No indictment can be prefeired for subornation of perjury unless one ther of the preliminary steps re- quired by 32-33 Vict., ch. 29, sect. 28 (^Procedure Act, 1869) has been taken; As perjury, see ante, subornation of perjury is not triable at Quarter Sessions. / i AN ACT FOR THE SUPPRESSION OF VOLUNTARY AND EXTRA JUDICIAL OATHS. 37 Vict, oil, 37, (1874.) Whereas a practice has prevailed of administering and receiving oaths and affidavits voluntarily taken and made in matters not the subject of any judicial enquiry nor in any v^^ise required or authorized by any law ; and whereas doubts have arisen whether or not such proceed- ing is illegal ; for the suppression of such practice and re- moving such doubts, Her Majesty, by and with the advice, and consent of the Senate andlluuse of Commons of Canada, enacts as follows : — Sect. 1.— It shall not be lawful for any Justice of the Peace or other person to administer, or cause or allow to be administered, or to receive, or cause or allow to be received, any oath, affidavit or solemn affirmation, touching any matter or thing whereof such Justice or other person hath not jurisdiction or cognizance by some law in force at the time being, or authorized, or required by any such law ; provided always that nothing herem contained shall be construed to extend to any oath, affidavit or solemn affirmation before any Justice in any matter or thing touching the preservation of the peace, or the prosecution, trial or punishment of any offence, nor^ to any oath, affidavit or affirmation which may be !i^ 748 THE CRIMINAL STATUTE LAW. required or authorized by any law of tlic Dominion of Canada, or by any law of the Province wherein such oath, affidavit or affirmation is received or administered or is to be asoti, nor to any oath, affidavit or affirmation whicli may be required by the laws of any foreign country to give validity to instruments in writing de- signed to be used in such foreign countries respectively : And provided further, that ii shall be lawful for any Judge, Justice of the Peace, Public Notary or other functionary authorized by law to administer an oath, to receive the solemn declaration of any person voluntarily making the same before him in the form of the schedule to this Act annexed, in attestation of the execution of any written deed or instrument, or allegations of fact, or of any account rendered in writing, and if any sucli decla- ration be false or untrue in any material particular, the person making such false declaration shall be deemed guilty of a misdemeanor. Section 2.— Any Justice of the Peace, or other person administering or receiving, or causing or allowing to be received or administered, any oath, affidavit or solemn affirmation contrary to the provisions of this Act, shall be deemed guilty of a mi&demeanor, and shall be liable to be imprisoned for any term not exceeding three months, or to a fine not exceeding fifty dollars, at the discretion of the Court.— 5-6 Will. 4, ch. 62, Imp. SCHEDULE. I, A. B., do solemnly declare that" (s^rt^e the fact or farts declar- ed to) and I make the solemn declaratitn conscientiously bcliev- in,c; tlie same to be true, and by virtue of the Act passed in tlie thirty-seventh year of Her Majesty's reign intituled {insert the title of this Act.) THE VOLUNTARY OATHS ACT. 749 Is the last proviso of section 1 of this Act constitu- tionaH Has the Federal Government the right to legislate on such matters! This proviso is in the English Act, 6 & 6 Will. 4, ch. 62, and is sect. 18 thereof, but, of course, this does not give to our Federal Parliament a pov^er which it has not by the constitutional Act. However, if the misdemeanor mentioned in it exists, it is punishable, at common Ir.w, by fine or impri- sonment, or bothj at the discretion of the Court : the punishment ordered by sect. 2 of the Act does not apply to the misdemeanor created by sect. 1. As to the first part of section 1, it contains a very much needed enactment. It is taken from sect. 13, of the said 5 and 6 Will. 4, ch. 62, of the Imperial Statutes ; the preamble (the same in the Canadian and the English Actsj reads thus : " Whereas a practice has prevailed of administering and receiving oaths and affidavits voluntarily taken and made in matters not the subject of any judicial enquiry, nor in any wise required or authorized by any law ; and whereas doubts have arisen whether or not sucli proceed- ing is illegal ; for the suppression of such practice and removing such doubts. Her Majf^sty, &c., &g., &cJ Sir William Blackstone had said : (Vol. IV, p. 137) " The law takes no notice of any perjury, but such as is committed in some Court of Justice, having power to administer an oath ; or before some magistrate or proper officer, invested with a similar authority, in some pro- ceedings relative to a civil suit or a criminal prosecution : for it esteems all other oaths unnecessary at least, and therefore will not punish the breach of them. For which reason, it is much to be questioned, how for any magis- trate is justifiable in taking a voluntary affidavit in any extra-judicial matter, as is now too frequent upon every 760 THK CRIMINAL 8TATUTK I-AW. r » P m petty occasion, siuoo it is mor<5 tluiii posniblo that, by sueli uUv oaths, a man may iViMjiiont ly, in foro consnentice^ incur th« guilt, and, at the Kaiuo tinu!, cvado tlio temporal penaltit's orporjury." ♦* And Lord Koiiyou indwul, in dilVoivnt cases, lias c.\prc88od a doubt, vvluttluTa uingiHtratc docH not subject himself to acriminaJ information for talking a voluntary e.xtra-ju and on tlie occasion aforesaid, hail not any jurisdic- tion or cognizance by any law in force at the time being, to wit, at tiie time of aihninistering and receiving the said oath, or authorized, or ixxpured by any sucli law : the same oath not being in any matter or thing touching the preservation of the peace, or the prosecution, trial or punishnuMit of any oll'ence nor being required or author- ized by any law of the Dominion of Canada, or by any law of the said Province of wherein such oath has been so received and administered, and was to be used ({/ to be used in another Province, add " or by any law of the Province of ... . wiierein tiio said oath (or affidavit ) was {or is) to be used ") ; uor being an oath required by the laws of any foreign country to give validity to any instrument in writing, designed to be used in such foreign country ; that is to say, a certain oath touching and concerning {state the subject-matter of the oath or affidavit, so as to show that it was not one of which the Jus- tice had jurisdiction or cognizance, and was not within the THK VOLUNTARY OATHS ACT. 751 exceptions) ji^^iiiiiNt f/lii ■ ! I I tory account of themselves; all keepers of bawdy- houses and houses of ill fame, or houses for the resort of prostitutes, and persons in the habit of frequenting such houses, not giving a satisfactory account of tliemselves ; all persons who have no peaceable profession or calling to maintain themselves by, but who do ibr the most part support themselves by gaming or crime, or by the avails of prostitution,— shall be deemed vagrants, loose, idle or disorderly persons within the meaning of this Act, and shall upon conviction before any Stipendiary or Police Magistrate, Mayor or Warden, or any two Justices of the Peace, be deemed guilty of a misdemeanor, and be punished by imprisonment in any gaol or place of confine- ment other than the Penitentiary for a term not exceed- ing two months (now six months,) 37 Vict, ch. 43), and with'or without hard labour, or by a fine not exceeding fifty ^dollars, or by both, such fine and imprisonment being in the discretion of the convicting Magistrate or Justices. '■ Sect. 2.— Any Stipendiary or Police Magistrate,. Mayor or Warden, or any two Justices of the Peace upon information before them made, that any person herein- before described as vagrants, loose, idle and disorderly persons, are or are reasonably suspected to be harbored or concealed in any bawdy-house, house of ill-fame, tavern or boarding-house, may, by warrant, authorize any constable or other person to enter at any time such house or tavern, and to apprehend and bring before them or any other Justice, all persons found therein so suspect- ed as aforesaid.— 5 Geo. 4, ch. 83, and 31-32 Vict., ch. 5'2, Imperial Statutes. Procedures under this Act are regulated by the 32-33 Vict., ch. 31, An Act respecting the duties of Justices of the Peace, out of Sessions, in relation to summary convic- tions and Or'nCr'S. bawdy esort of iig such iselves ; ' calling lost part le avails , idle or Let, and : Police 58 of the and be confine- exceed- 13), and acceding sonment strate or gistrate,, ice upon ; herein- isorderly tiarbored ill-fame, luthorize me such )re them suspect- lict., ch. le 32-33 ustices of y convic- INDEX Paqb Abettors in misdemeanors and in offences punishable on sum- mary conviction, under tlie Larceny Act 618 Do. do. do. under the Forgery Act ...157 Do. do. do. under the Malicious Injuries to Property Act f,ect. 70 '1^ Abandoning child under the age of two years 260 Abortion. Attempt to procure 385 Indictment for woman administering poison to herself with intent .•, • •.• • • • • • • .?f,V Indictment for administering poison to a woman with intent.. . Adb Indictment for using instruments with like intent 33b Remarks • '' 01-060 Procuring drugs, ice, to cause abortion 338 Indictment *'^'' Abduction of a woman of any age I'rom motives of lucre, &c 318 Indictment if of age 319 Indictment if under age oio 000 Remarks '^^^'izT, i)i' any woman • Y^f Indictment ff^ Of girls under sixteen ^f^ Indictment •. ^j.* Stealing children less than fourteen years ot age 3i5 Indictment ^*" Acceptance op a bill op exchange, forging or uttering 100 Accusing of crime with intent to extort 484 Indictment '^^^ Adulterer, larceny by ^^2 Administering poison to procure miscarriage 335-3:58 Do. do. with intent to murder 227 Do. • do. attempting to administer poison with intent to murder ■. • ■ So as to endanger life or inflict grievous bodily harm, or with intent to injure or annoy 255 Administering chloroform with intent to commit offences 254 Agents, fraud by • • • 567-572 Algoma, 32-33 Vict., ch. 35, declared in force in the District of, 393 '■ ■■ ■ ■ ' ■ " " YY 772 INDEX. I 11 'r Adminiwkbino voluntary oaths Animals, cruelty to Assault on a clergyman in the discharge of his duty Indictment for obstructing a clergyman in the discharge of his Indictment for arrVating a clergynian about to engage in the Paoe 747 765 , 281 281 282. performance of divine ficrvi-. Disturbing congregations met for religious worship ^8^ On officers, &c., saving wreck. I " V li" ' " ',:; Indictment for assaulting a magistrate on account of the exer- cise of his duty in preserving wrecks i»* With intent to commit felony, or on peace ofhcers gJ Indictment • • V- ■"*'<•* i ':L Indictment for assaulting i)eace officer in execution of his 1. ^wo Indictment for an" assault to prevent arrest 287 With intent to obstruct the sale of grain ,^» ' On seamen, stevedores, sliip carpenters, &c ^»n Arising from combination or conspiracy • .• • ■*»'' Indictment for an assault in pursuance of a conspiracy to raise ^^^ Remarks • * .,qo Summarv convictions for rommon assault ^»^ Case dismissed, certificate to be granted ^»>2 Party mav be discharged in certain cases ••.••••,••• ; • • ' ia. With attenipt to commit a felony, how justice shall P"'°'=^^'* Agi-MS Remarks ^ Assault with intent to rob 457-468 Indecent, see " indecent assaults." What constitutes an • • • • • • • • ^, „ No, if there is consent '^^^ o,t tna When justifiable 304-306 Army and Navy, offences relative to Her Majesty's, 32-33 Vict., ch.25 754-757. 641 Arson 227 Attempts to murder Indictment for administering poison with intent to murder. ... 227 Indictment for wounding witli intent to murder. ^^»' To murder by destroying or damaging building with gun- ^^^ powder > 2'3i Indictment • ; „o<> To murder by setting fire to, or destroying ships g^ Indictment • • • ............. • • • • To murder bv poisoning, hhooting, drowning, &c ^^* Indictment for attempting to poison with int«nt ^^* Indictment for attempting to drown with intent to murder... Aio Indictment for shooting with intent to murder ^^^ Indictment for attempting to shoot with intent ■i«i» lis .. 281 he .. 282 .. 282 ... 283 :er- .. 284 ,.. 285 ... 285 his ... 28G . .. 287 ... 287 . .. 288 ... 289 lisc . .. 289 290-292 ... 293. . . . 293 . . . 294 294 294-298. 64t 227 227 229' 231 231 232 232 233. 234 235 236 238 INDBX. 773 Paob By any means W'-' Piiniehinent • '^^^ Indictment r ',." '\\'"A ^'i?!. To choke with intent to commit any indictable offence 253 Indictment 254 To set lire to buildings fi5J» Indictment '^-^-f To set fire to a vessel fi9(> Indictment 6% To set fire to crops, stacks, cScc fi69 To commit sodomy 345 To commit suicide 1 92 To set fire to mine 679 Arms. Carrying bowie knives about the person 351 Sheath knife, if carried about the person in any seaport towns or cities of Canada, person charged with same, how tried ... 352 Duty of tlie Court or Justice before whom convicted S52 Limit of time within which prosecutions shall be commenced . 352 Arms, what constitutes loaded 233 B Bailees. Larceny by 404 Bankers. Frauds by 567-570 Indictment again.'ft banker for selling or converting goods, &c., intrusted to him for safe keeping or for a special purpose " not " in writing 5*^' Beacons. Penalty for making vessels fast to 701 Destroying, removing, &c.. Sec, &c 700 BiOAMY. Where offender may be tried 326 Indictment • • • ^27 Remarks 327-335 Birds. Killing or maiming 693 Stealing ^22 Birth. Concealing the 339 Indictment ;;a o'!!! Remarks 340-343 BoDi: -V HARM, assault occasioning 298-.'!04 Booms. Cutting adrift '^01 Indictment 2?? Setting fire to 6ob Attempt to set fire to • • 656 Buildings. Setting fire to goods in any, the setting fire of which would be felony 653 Indictment 654 V I I 774 I.NDIX. Attempt to Hct Are to j-itij Injurii'H hy expjoMivo Niilmtanceft to !!!!!!!!!! fi.W DciiioliHlied or injurt'd Uy rioters ....!.'.'!.' 6(51 Injuries to, hy tt^iiantH '...,.'','.',,', 664 Inilictinciit .....,..' 665 Ik'oVfi. Cutting away gDD Indictment ^00 PenaJty for making veHnels fast to '"'•.'.'....'.'.'.'.... 701 Biiiui, Oaorxi), injuries to Htatues, monuments Id, ice, kc, &c.. 691 Larceny of fixturefl in 437 Hriooks. Injuries to ggg Trulictinent lor pulling down gjug Indictment for injury _ [ [ t'^i- licROi.ARV. General renuirlvH 489-604 In a churcii or chapel 5q^ Indictment for breaking and entering a cliurch and stealing tl.'f rein ° 505 Indictment for stealing in ami breaking out of a cliurch 506 By breaking out .....'. 50 titute burglary 497 The intent necessary in 503 The word " burglariously" necessary in indictment (or .. ^ .. 510 C.VTTI.K. Interpretation of the word 4Q2 ?;.<;«''»« .• ■ : 420 Killing or maiming g92 Indictment ..." 69"^ Carxai- Knowledge defixed 308 Carnally knowing and abusing a girl under ten years 314 Carnally knowing and abusing a girl between the ages of ten and twelve gjg Attempts to commit the said offences .......'..'. 317 Carriage. Doing bodily harm to any person I y furiously driving 279 Cheats, common, how now punisliab'e SR''» Paoi .... 656 .... fi.W .... 661 ... 664 ... 665 .... 699 ... 700 ... 701 kc. 691 ... 437 ... 685 ... 686 ... 686 489-604 ...504 ling ... 605 ... 606 ... sot; ... 608 . . . 60« ... 501) ... 510 525 526 r 528 490 491 497 603 510 402 420 692 693 308 314 315 317 INDIX. 775 Paob Chequk. Forgery, altortttion of. 105-111 Cheque, larceny of 425 Cim.u. Exposing cluldren under two years of ago 260 Indictment 261 Carnally abusing •il* Concealing the birth of 33^ Stealing, under the age of fourteen 32j CHItD-MUBDEB 1^1 CuLORoroRM. Using chloroform with intent to commit indictable oflences 2.54 Indictment ^^"^ Choke. Attemi)t9 to choke, etc., with intent to commit any indictable offence 25.1 Indictment 25J Church. ("See Building.") Setting fire to 641 Indictment «;.', «r?, Demolishing or injurmg «nT Injuring statues, pictures, &c., &c., in a 691 Do. do. do. do. in a churchyard 691 Larceny of fixtures in a churchyard 437 Chapel. (« See Building.") Setting fire to 641 Indictment <542 Clerk. Larceny by 542 Indictment • • • 543 Embezzlement by in Indictment • • •. ';4^ Remarks 546-56.? Codicil. (See Will) 4.32 Cognovit actionem, forgery of, meaning of the word 130 Coin. Interpretation of terms under 32-33 Vic, chap. 99 1 Imperial Act ^24-25 Vic, chap. 18) applies only to the " Queen's current gold and silver coin " '} What Canadian Act includes ;] How clause is framed in the English Act ^ Counterfeiting current gold or silver coin •> Indictment 4 Evidence as to counterfeiting .• • ^ Variance between indictment and evidence immaterial ^ Credible witness may prove -^ Colouring counterfeit coin, &c Jj Indictment ~L Proof of gilding • • ^ Indictment for colouring metal, &c ° 776 INDEX. s T • • 11 1-1 . , . PAdB Imrairms gold and silver com with mtent 8 Unlawfulpossession of filings, clippings, &c ....'... 9 Indictment ......!!!! 9 Act of impairing, how shewn '.'.!.'..*.'..'..*. 9 Buying or selling counterfeit coin at a lower value without law- ful authority ; jq Punishment lor ....*..'....,,.!.! 11 Indictment !.....!!! 11 Proof. '................,! 11 Importing counterfeit coin without lawful authority . ... '. .'.' . ,' . .' 12 Punishment for same ' ...',*'"'.' 12 Indictment .....,....'..' 12 Exporting counterfeit coin without lawful authority ...... .... 1;^ Punishment for same ." ,,..,' i;{ Indictment ..'.....!..'..* 13 Uttering counterfeit gold or silver coin .."...', 13 Punishnlent for same ..',....!.,,. 13 Knowingly tendering, uttering or putting off as being current any gold or silver coin of less than its lawful weight 14 Punishment for same ' " ' | {4 Having custody or possession of false of counterfeit coin' with intent to utter or put off 15 Punishment 15 Indictment, for uttering counterfeit coin 14 Proof ".".'.'.'.'.'.'.'.',". 15 Indictment, for having in possession counterfeit gold or silvei- coin with intent I7, Uttering, &c., &c., after a previous conviction shall be felony.. 18 Punishment for same 18 English Statute, mode of proceeding under '..'...".'..'.",.' 18 Uttering foreign coin, medals, &c., with intent to defraud. . .... 19 Punishment 19 Indictment, how framed '......*...'.*..'. 19 Proof as to 19 Counterfeit copper coin 20 Punishment for same 20 Uttering base copper coin ' ' 2I Evidence in prosecution relating to copper coin 21 Defacing coin, tender of defaced coin , . . . 21 Punishment for same 22 Tender of such, illegal. 22 Indictment 22 Prove, what is necessary to 22 Counterfeiting foreign gold and silver coin not current in Canl ada ......,.......,,;.. 23 Punishment for same 23 Bringing such counterfeit coin in Canada '. . , .* 23 Uttering foreign counterfeit coin 23 Punishment for second and third offence ...........' 24 Punishment for same 24 Having foreign gold or silver coin, false oi- counterfeit in poV- session 24 Paqb 8 . 9 . 9 . 9 * 10 . 11 . 11 . 11 . 12 , 12 12 . l;^ , i;{ 13 13 13 t , 14 , 14 1 15 15 14 15 « 17- , 18 18 IB 19 19 19 19 20 20 21 21 21 22 22 22 22 23 23 23 23 24 24 24 INDEX. ♦'^' Paok Falsely making or counterfeiting any kind of coin, not being ^^ current coin • • 26 Making, &c., coining tools 2(5 Proof where it ehall lie • .• : • • .>7 Indictment for making a puncheon for cmn ng^ ••■•••;; ; ^29 Indictment for having a puncheon in possession ^^ ing, &c .. 38 When Act to commence • ooooq; Common Assault. Summary conviction for ^ ^^"^^^ As an indictable offence •• • ■•• Companies, Public. Frauds by directors or officers of. .... 573-57o CoMPOUNBiNa Felony. Taking a reward for the restitution of ^^^ stolen property ^^_^ Concealing the Birth of a Child ^^^ Concealing Wills, &c., &c ■•' " Consent. Difference between, and submission ^"^-»^^ •Conspiracy to Murder ^39 Conspiracy . Assaults arising from 357.372 •Constructive Taking in Larceny !,«= oat Contributory Negligence, in cases of manslaughter -05-^UT Copper Coin, offences respecting the •Corporate Bodies. (See Companies, Public.) ^^^ Correction. Killing by ^^^ ■Crops. Setting fire to CouNTERFEiTiNG,see" Cow." 5is_522 . Counting-house, burglary and larceny in a • • • " C ROSSED cheque, obliterating, adding to, or altering crossing. . . 11 CROW, having in possession by night without l-f"!/-"^^ " ' ' ^ ^ • Cruelty TO ANIMALS. An ActreBpecting,32-33 Vict.,ch. 27.765-768 Punishment ,. „ Curtilage. What buildings within • Breaking into a building within, and committing a felony ... . . 514 Indictment 778 INDEX. What is the meaning of the word gi o Custom-house officers, dfTences against 285 Forgery of stamps, documents, &o., &o., &c., under the '< Act respecting Customs" jga Custom-house, destroying or injuring by fire 650 Cutting, &c 249-251 Dam, for timber, setting fire to q^q^ Dam of fish-pond, destroying gSj. Dam of mill-pond, destroying (532 Debentures, forgery of, 73, Deed, acknowledging without authority or excuse, in name of another ]33 Deed, obtaining execution of, by false pretences 603' Deed, obtaining execution of, by force 436 Defaced coin, not a legal tender 2I' Defilement of a girl under twenty-one vears of age, criminally procured ' _ 31;} Defraud. Defrauding a person of the advantage, possesssion or use of his property 620 Remarks 620-62t) Of the intent to defraud, in forgery 44, 61, 8a, 142, 150 Desertion, inducing soldiers to 75.J. Diploma, forgery of 45. Directors of Companies. Fraudulently applying property of Com- pany : 574 Keeping false accounts 574 Destroymg, altering, &c., books 574 Making fraudulent .'tatements ' 575 Indictment against, for fraudulent conversion of the conipar.y's money 583 Indictment for keeping fraudulent accounts .... . . . . . . . 583 Indictment for destroying or falsifying books .' .' 583 Indictment for publishing fraudulent statements '. 583 Disturbing religious meetings, &c 282 Documents op Title to Re/.i, Estate. Stealing 431 Indictment , 43^ Dock. Stealing from 533 Indictment 533 Dogs. Killing or maiming 693 Stealing 422 285 INDEX. 77^ Pa«b Dove. Killing or wounding ^'ia Dredging in the oyster fishery of another 424 Driving, causing bodily harm by furious 270 Drowning a mine, &c • ^^* Drown, attempting to, with intent to murder 2.3.3 Drug, administering, with i'-tent, &c 254 Duel, killing in 1^* Dwelling Hoi. e. What is a, in burglary 491 Entering by night with intent to commit felony 512 Indictment ■ V, . Breaking into, within the curtilage »J* Indictment • • • • •••••' ' '. ei a Breaking and committmg any felony therem oi^ Stealing to the value of $25 in a ^^J Indictment • • -.,«, Breaking, with intent to commit a felony '^^f^ Stealing in, any person therein being put in lear Ji- Indictment ,••;•• Vi" ' "■ RAti Setting lire to, any person being therem »ja Indictment •.••;••'•, • aot Stating ownership of, m burglary. *»' Destroying, by gunpowder, any person being therein bo» Riotously demolishing or injurmg bb i , oo.. 222 Excusable Homicide Electric Telegraph, injuries to ^^^ Embezzlement by clerks or servants 544-563 Embezzlement by public officers ^"* Three distinct acts of, may be charged in one indictment, in certain cases •:••.••;." •/•;, •,•'■■, ; Verdict of larceny allowed in indictments lor cmbezzlement_, and viceversa 545-64S Embezzlement by partners Embezzlement by bankers, merchants, brokers, attorneys, ^^^ agents, &c "^ Exchequer bills or bonds, forgery o^ '^8 Explosive substance, injuries by, to buildings and goods therein. 658 Indictment for destroying by explosion part of a dwelling house, some person being therein • • " ; ' *i-^ j i* cca Indictm^t for blowing up a house wherebv life was endangered. 660 Indictment for throwing gunpowder into a house with intent, &c. bbl Causing bodily injury by f.^f Sending, with intent to burn ' ^"^ Placing, near a building, with intent •^"iJ 1^ .t 780 INDEX. Pack exportikg countekkeit coin 13 Exposing child nmler two years of age . , 260 FxcTona, frauds by 567-584 False pretences, obtaining;; any chattel, money or valuable secu- rity by 584 Indictment 58G Remarks 585-602 Inducing persons by fraudulent means to sign deeds, papers, *c. 603 Indictment 603 Falsely pretending to have inclosed money or other property in a post letter 604 Winning money by cheating at a game , 604 Indictment 605 Obtaining steamboat or railway passage by false ticket 600 Conviction of obtaining by false i>retence8 on indict«nei\t for larceny 60G False signals, exhibition of, with intent to bring any 8hip,«rc., into danger 698 Indictment for exhibiting false signals 609 Indictnient for doing an act tending to the immediate danger of a ship 699 Fences, injuries to 678 Stealing, &c 443 Ferce Naturae, animals that are, not the subject of larceny; 381 Fine, power of court to impose, in addition to or in lieu of other punishments for misdemeanors, under Coin Act 3 Under Forgery Act 157 Under Offences against the Person Act 353 Under Larceny Act 639 Under Malicious Injuries Act, Sect. 74 712 Fish, throwing lime, &c., in pond, with intent to destroy 684 Fixtures, stealing, breaking, cutting, &c 437 Fixtures, stealing of, by tenants or lodgers 56(5 Foreign coin, offences relating to 23 Forest, setting fire to 655 Attempt to set fire to 656 Forgery. General remarks 39 Meaning of 39 Characteristic of the crime '^^ Not confined to falsifications of mere writings 40 Uttering, as to the 57 See (aefraud, intent to.) Indictment, General Form, under Statute 62 Indictment for forgery at conunon law, form of 64 INDEX. 781 Pach . 13 .... 678 .... 443 .... 381 ither ■ • • • O .... 157 . . . . 353 .... C3'J . ... 712 .... 684 .... 4.37 .... 5G() .... 23 , ... 655 .... 656 . . . . 3i> . . . . 39 . . . . 40 . . . . 40 .... 57 . . . . 62 .... 64 Paoh Common law, forgery at J|+ Act reflpecting (orgery *!;? Of great seal "•* Punishment j!'' Indictment, ,"."''" \"A 'i' *V " Of document signed by Governor, Lieutenant-Governor, letters patent, public registers, &c., &c... ;7 Of letters patent, &c., or putting ott name |j« Punishment .1' Of public register "jj Punishment ■ ^., Indictment, see general remarks. ••■•■;■■': n* Of transfers of stocks, powers ot attorney, &c., &c., &c ()■> Punishment .• • • . ■ • Indictment, for forging and uttering a transfer of stock 70 Indictment, for forging and uttering a power ot attorney to sellout stock •.•••••;••■■/"■;■: ':■) Personating owner of stock with intent, &c < - Punishment -\^ lVginT"a'^te8tation" to' power of attorney for transfer of stock, &c -^ Punishment ^^ Indictment, • -,. Making false entries of stock, &c., &c., Ace 'J Punishment , /•:",• ni- Indictment for making false entries of stock • i^ Indictment for making a transfer of stock in the name ot a person not the owner • • • • ' * Clerks making out false dividend warrants, Ulc ^(^ Punishment ^^ Indictment ; : " ' ' 'i' 1 : • •. • '.' Of forging debentures, stock, &c., making plates, paper, in mu- tation of those used for debentures, &c. Having such plate, paper, &c., in possession i^\^ InXuments'c unlawful possession ot) having tiierein any words, letters, figures, marks, lines or devices peculiar to or appear- ing in such debentures, exchequer bills or exchequer bonds. Dominion notes or Provincial notes, &c...... ••• '■' Paper (unlawful possession of) provided for debenturee, exclie- quer bills or exchequer bonds, notes, &c . . . . . . «" Paper (unlawful possession of) manufactured by the Govern- ment of Canada or Provinces ^ Indictment (See general form) ^2 Of stamps, y.^ PunishiHcnt g'.j Remarks g'j Of bank notes, cVc, iiC, ^^ Punishment gi^ Indictment, ■,•,•■■;"■; m Of purchasing or having forged bank notes ^^ Punishment 782 INDXiX. If , ,. I'aob liuiictinont , DO As to iiiiikiiiK pupt'r uiid fiigmving pluto, \o., ic, lor bank MOti'S j)0 PiiniBliinciit j)| Piiper, wliat pormittod to ho unod lor J»2 Kiigraving Dominion or Provincial noto or l»nnk note 1)2 Knj?rftvinjj any word, nnnilior, figure or device intended to rt- W'tnblo Dominion or Provincial iiotes or bank notes, &o O.'t Punishment y;; Using instrumentM Ibr manufacture of paper with the name or linn of any bank, body cornorate, company or person cur- rying on the business ot bankers visible in tliu substance, Jkc. Ot Punishment yi As to forging, uttering or putting oil, knowing to be forged, any bill of exchange, &c,, promissory note, imdertaking or ordeV for nayment of money, .' \\[ Punisiiment .' j).', Remarks y;; Of deeds, bonds, ^:c \}7 Punishment i»,s Indictment *u Of a will ..'.., <»D Punishment [ . . . j);» Indictment , TOO Itemarks lOO Bills of e.xchange or lu'omissory notes 100 Punishment. 101 Indictment 101 Uemarks 10;{ Of orders, receipts, &c., for money, goo Punishment * 1 0(> Indictn>ent io7 lienmrks 108 Making, accepting any bill,&c., Ac, &c., by procuration, with- out lawt\il authority, &c., &c 109 Punishment '. 1 1 o Tt\dictment. See general renmrks ()'l Keinarks 110 Obliterating crossing on ch«]ues Ill Punishment Ill Ofdebentures 111! Punishment 112 llemarks 112 Of trade nuirks ll;{ "Person "construction of the woril, in Trade Marks OHences Act ll.j Provisions on trade marks 1 i;{-l.'}0 Of railway tickets, &c 1 30 Punisiiment i;iO Of records, process of Courts of Jiisfice, documents, pnxluced in court, &c 1 ;iO Punishment liU Of official documents by clerks, v<:c 131 Paos . «J(> k . n . n . n '.>:► 1»7 1>S Jti't itl> •.»'■► TOO ]()() 100 101 101 io:t io.> IOC 107 lOH lOD 110 »;2 iia 111 lit 112 112 112 1K$ ii:{ -i;u) 130 lao i;io i:u 131 INDBX. 7Ha Pao« or iiiHtruinontfl, ina.lo evidence by Act oC I'urlimnent V.VA or iiutariiil aclH, rcgiHtorH ot dmlH, Jkc 131 Of ordtTH, BunuiioiiH, kc, ko., oIjuhIicoh oI tlio pcaoe U.> Of the niinicH ( '' judjjcH, ck-rkn, i'tc 37 FnlHcly ttckiiowloJgmg rcoogiiizimci'M, &c !• h Ji.dictmont j;^ Of inurriiijte Ucciihi-h •.••,••■, }: ,> Uf rcgistors of liirtliH, nmrnagi'H ftiid doatliH 13.» 01 intttterB rehUing to ImptiH nivrriage or burial 140 Indictment • •. \'\} l)enmndinj? proiKTty upon (orgoil iiiHtriinientH U.i Of any docuni(i\t or writing wliatrnd-vcr. ., ......... Ml Of any inHtrinniMit, liowover lU'wigiiated in law, a wdl, bill ot oxcfiango, \(-., ki'..,lkv, |'J6 OfbillH nnidi' ont of Canada •,'•'•,•; •' ForgcrH nmy l>o trii'w to be alleged Y-' (Iriininal poHBeHMion, what in, under thiH Act i-n .Search warrantw for forged iiiHtn'.inentH, &c Un Ueniarkn 151-lo4 •Competency of witno-tseH on trial ._■ ■ . • J-}* PuniHhmentH, kc 15;j-15b-ir)7 Accessories alter the fact • j -j^ Fines and suretie.s for keeping the peace, in what caHes luT This Act, wlien to commence and lake etiect loH Under the "Act respi^cting the Customs," 31 Vict., ch. fi. . 158-50 Under the "Act for the regulation ot the Postal Service, 31 Vict. cli. 10 ^'^^ Under the " Act resju'cting the Hhippingof Seamen," 31 Vict., ch. 120 '^'^ Frmoiis Diiivino, causing bodily harm by 271) 0. Oamino, winning money by cheating at «>04 <»AIU)KN, stealing in ^-^^ (lardcn, destroying trees, plants, &c., kc, ka <)72 C7G ,.. rtl7 ■r 784 INDEX. Page OooDs. Destroying, &c., in tlie procesa of manufacture 666 Destroying certain tiiacliinery , 667 Indictment for cutting; goods m the loom 668 For breaking warp of silk 668 For entering by rorce into a house, with intent to destroy or cut woollen goods 66B Indictment for destroying u thraslnng machine 66 1> (t00D8 FOUND, larceny of. 388 Governor-General. Forgery of seal of 66 Grain. See " Crops." Grand Larceny and Petit IjArcexy. Distinction between, abolished 404 Gbape Vines. Destroying 671 Great Seal. Counterfeiting 6& Gbevious Bodily Harm, what is 246 Wounding, or shooting, or attempting to shoot, with intent to do 244 Inflicting, with or without weapon 249 In indictment fo^ felony, charging u grevious bodily harm, a verdict for a misdemeanor may be given 24l> Upon indictment for, a verdict for comnion assault may be given 250 Gross Negligence of Medical Practitioner, death caused by 205> Guilty Knowledge, how proved, in forgery and uttering 5& Gunpowder. Causing bodily injury by gunpowder 262 Causing it to explode with intent, or sending it to persons with intent 263 Placing near a ship with intent to damage any ba^y 265 Indictment for burning by gunpowder 264 For sending an explosive substance with intent 264 Indictment for throwing corrosive fluid with intent 264 Having in possession or making, &c., with intent to commit any of the felonies in this Act 347 Justice may issue a search warrant 347 Taken possession of under this Act may be sold under direction of the Court 348 Indictment 349' Placing gunpowder near a vessel with intent to destroy or damage 697 Making to commit offences 708 Searching for same 708- H. Homicide, excusable, justifiable 222 Homicide, pei' injorttmium or se at sua defendendo 222 Paob . 666 . 667 . 668 . 668 r . 668 , 661> . 388 . 65 ... 671 ... 65. ... 2U t to vith ... 263 ... 263 ... 264 ... 264 ... 264 unit ... 34T ... 34T tion ... 348 ... 34» r or .... 697 .... 708 .... 708 222: 222 INDEX. 785 Paob . 163 Homicide, generally • • • Homicide Law Amendment Bill, report on, by Committee of British House of Commons ■^^» Hop-BiKs, destroying, kc, &c ^"^^ Hop-oAST, setting fire to ^'^^ Hop-OAST, riotously demolishing or injuring 661,662 42ft' HOBSE-STEAMNO HorsE-BREAKiNH. Breaking into a house, &c., and out of the same, and committing a felony therem o'" Indictment :',": 'y \'\ •* " Breaking into a dwelling house, &c., with mtcnt to commit a felony J^| Indictment ■","■' \" 1\' •'» ' ' Breaking into a dwelling house, &c., with mtent to commit a felony, in the night •/••;; i" * ' "i" • rot Having in possession by night implements of house-breaking. . 525 House. Setting fire to ^'^^ 647 Indictment .•:••.■ 't•'ti^ (!(;'> Riotously demolishing or injuring Yrl Injuries to by tenants ""* Husband may kii-l adulterer in certain cases 168 I. s ov house-breakino, having in jjossession by night. . 525 Implements Impeding persons endicavourino to escape from wrecks. 243 243 Punishment 243 Indictment Indecent assault, upon females ^ Indecent assault, upon males Infamous crime, accusing or threatening to accuse of an infamous ^^^ crime, with intent, &c Injuries, to houses by tenants Intent to defraud, in forgery. See " Defraud." J. Justifiabij: homicide. K. 222 349 Kidnapping. Punishment Offence, where it may be tried '^^^^ Indictment ' 350 / 786 INDBX. PAoa KiLMNO, what to constitute murder l'»3 Jiv correction 203 In defence of wife, cliildren, &c., kc ^id In defence of proi)erty f ^* InaduPl }8; IJy flighting • l**' OtHcers of justice Io'HaS J{y officers of justice 1,1 "for Upon provocation o/u i^y negligence *''* liy medical practitioners *ll IJy poisoning ; • ••• ]^j' Of the malice necessary to constitute murder. Ibd-IHO Knives, bowie, carrying, &c., kc 351 Knowlede, carnal, defined 308 Larceny Act, proceeding on sunmiary convictions, under C37 Larceny, at Common Law 356 Of the intent Lucri causa in • • • • 356-392 Of the felonious intent necessary m 6by-Mi-ii.ii The taking in...... • 35J Of constructive taking and possession ooa The taking where the otfender has a bare charge 33'J The taking where the possession of the goods has been obtained animo furandi .••••;:, / ' I ' * "i \\"'"i ^^^ The taking where the possession of the goods has been obtained bona fiok without any fradulent intention in tlie first instance 3TI The talcing where the oflender has more than a special property in the goods 372 Larceny, by avowterer or adulterer 372 Larceny of one's own goods 375 The carrying away, and asportation 377 The goods taken 380 The owner ■ ^^f Tiiking must be against owner s consent JoJ Larceny, by finding 388 Indictment, general remarks 393-399 Larceny. (See the various heads) Gen cral remars .>j7-39J Act r.'ppecting, and other similar offences 32, 33, Vic. chap. 21-400 Distinction between Grand and Petit, abolished 404 Bv Bailees , ^JJ Bailee, who is a *"« Bailment, what constitutes 407 Punishment for simple Larceny 413 When exceeds $200 ; • • • ^20 Three Larcenies within six months m one indictment 414 INDRX. 787 Paoi .. 163 .. 203 .. 223 .. 224 . . 18!» .. 197 184-198 .87-202 172-195 ,,. 204 ,.. 211 ... 182 163-180 ... 351 ... 308 ... 637 ... 356 358 359 362 372 372 375 377 380 382 383 H57-399 I. 21-400 ... 404 ... 404 ... 406 ... 407 ... 413 ... 620 ... 414 Vaok If utio tiikiii;^ i^ ('hiir;jf'il and hovituI provcil 415 PuniHhment J'or simple Larceiiy lU'ter prcvioiiH convictum for felony , .•:■•'' *^^ PiiiilHlinu'Tit, for fliniple Larceny or onyort'enconmde piinishaMe like Hiniple Luneny after previonH conviction of any Indict- able mirtdenieanor puniHhaoie under tluH Act ., 41H Puninhinent after two jjreviouH conviclionH of otlenccH jMinifh- al)Ie ujxm wuniniary conviction under this Act 41 !• Indictment ■*' •* Of cattle and other aninialn '*f' Indictment ^^J Killing cattle with intent to Hteal the carouse 421 Indictment ..... 422 Stealiii}: UofiH, hirds, .%c., Ac, or other animalH ordinarily kept in confinement and Huhject of Larceny at common Law 422 Killing or taking PigeoiiH 423 Larceny of oyBterH, &c., kc.ylac 424 Larceny of \ aluable securitieH 42.) Larceny of documents of title 431 Larceny of wills, codicils, &c., &c., &c 4.32 Larceny of records, &c., &c 4.3.3 Jjarceny of Railway tickets, Ike, &c 43b Stealing trees, &.c., &c, &c -438 Stealing trees worth at least 25 cents, first offence: second (itlence : third offence 440 PiiiHihasing or recoi>'ing stolen trees 442 Stealing lences, gates, &c., &c, &c 44.3 PoHHcsHion of stolen wood 444 Stealing, &o., ^c, &c., plants, Sec, &c.,&c., in garden 444 Stealing plants, &c., &c., vVc, not in gardens 446 Stealing from mines 447 Concealing royalty, &c., &c., &c 448 Search warrant for gold, &c., &c., &c _ 460 Possession of gold evidence of larceny in certain cases 451 Fraud on partner in mines 452 Larceny by partners. . .■ 452 Robbery and stealing from the i)er8on 4.57 Robbery, with aggravated circumstances 474 Letters demanding money with menaces 477 Demanding money with menaces or by force 479 Letters threatening to accuse, &c., &c., &c., with intent, &c., &c. 482 Accusing or threatening to accuse with intent, &c., &c., &c . . . 484 Obtaining the execution of a deed by threats, &c., &c., &c 486 Burglary, see " Burglary • • • 488 House-breaking, see " house-hi-eaking •••••,• '; .aror Stealing in a dwelling-house, see " dwelling-house bl'd-bib Larceny in Manufactories • o3j Stealing goods intrusted for manufacture o.-ib Larceny in ships, wharves, &c., &c., &c <^37 Stealing from shipwrecked vessels "40 Larceny by clerks or servants ^42 Embezzlement by clerks or servants 544 Larceny or embezzlement by public officers obi 788 INDKX. Paon linrcpny iiy ti'iiantH or Icnlf^orH 66tf FmiulH hy iigentfl, liftiikerH.riiotorB, directorn, truBtt'OH, nttornovs, kc, kc.,kc /)67-fi84 FalHe preUuicefl, flee " fahe prdences " 684-007 Keceiviiip Htolen goods . . • rt07-GI8 v/ Dllraiuiiiii; n poi-Hon of tlie use of liis property, either real or }ierHonan 020 OHences concerning? tinilicr found adriil 620 Drinpin)^ into Canada property stolen, &c,, &c., &c., elscwliere. 027 ^-^ Restitution of stolen pronorty 02H l^ Taking a rowared for ao do do 633 Advertising a reward for do do do CSf) JiUrceny of stanips 640 Venue in certain cases of larceny 638 Fine and sureties for the peace in certain cases, under Larceny Act 639 Prosecutions of ottences punishable on summary conviction, under Larceny Act 639 Larceny under Post Office Act .399 Simply larceny in some cases punisliahle summarily 398 Letters, threatening to murder 241 Punishment. 241 Lidictment 241 Demanding money with menaces 477 Indictment 478 Threatening to accuse of a crime with intent to extort 482 Indictment 483 Threat' ling to burn houses, &c., &c., or to kill, maim, kc, any cattle 703 LoADKD Arms, what constitutes, under the oflences against the I'erson Act 2.33 Lodger, larceny by 507 Lumber, setting fire to 656 Attempt to .'. 656 M. Malicious Injuries, (See various heads.) Malicious Injuries to Property Act 641 General clauses 710-712 Remarks 712 Malice against owner not necessary 710 Not before provided for, to amount exceeding twenty dollars . . 704 Not before provided lor, to amount not exceeding twenty dollars 705 Mails, larceny, robbery of, &c., &c 399 Manslaughikr, punishment .^ 192 ZZ G26 627 628 633 635 640 638 639 639 399 398 241 241 241 477 478 482 483 703 233 507 655 656 641 399 192 INDKX. '^^^ ?KOM ..... 193 Indictment m^m HeniarkH , y. Prov(Mintion, casfH of J" Mutiitil con»y)at cascH |^ Uf Hintunce to ollictTH of Juatics, cuneH ol 'I"^ Killing by correction, cascM of *"^ Death cauHed by negligence •"* Neglect of natural duties ;••,"•;; Special Report by the Belect Committee ot the HouHe ot CominonH on the ' Homicide Law Amendment Bill ^|/ Under General Railway Act ^^* Manufactuiieh. Stealing goods intrusted for manufacture 636 Manufaotories, larceny in, to the value ol $2 636 Indictment Marine STORf • Regulations for dealers 619 Medical Puac utioners, killing by '-^09 Merchandise, Deposit of same with intent to defraud consignee 577 Refusal to deliver up by warehouseman, kc, to holder or endorsee of receipt " ' ^ Metal, &o. Fixed to Houao or land, stealing of 437 Indictment *'^^ Mines, stealing from, removing ore, &c., &c ^4' Indictments jt'. Fraud on Partners in J^f Injuries to ^', Indictment ^ ' "I Drowning Mines ^3, Indictment ^°} Destroying engines, erections used iu Mines »°l^ Indictment "^■' Military and Naval Stores, offences respecting Her Majesty's 758-7bJ Indictment for unlawful possession of ordnance stores 703 Money. Demanding money with menaces or by force, with intent to steal *'•' Indictment '*80 Murder. Punishment |^| Conviction for }^f Indictment ■•• \^/ Remarks ^ ^ i k? Malice, definition of • • ,• \^'i Malice aforethought lul Cases illustrative of general principle 180 Of child }8l » By poisoning ^"^ 790 INDEX. I: PaOB By killing officers of justice }8^ Killing by officers of justice i»' Duelling \ll Self-murder tf^ Conspiring or soliciting to ^JJ" Indictment • • • • ^.t. Punishment of accessories after the lact • • • "J- Vei-dict, general remarks IbZ-iau MuNDiCK. See " Ore." N. Navy. See " Army and Navy." Neglect to provide with food, &c., &c., wife, child, or appren- , Zo i tice, &c. Indictment, form of, for not providing an apprentice with neces- sary food 258 0. Oaths, voluntary and extra-judicial '^'^7 0FFSNCE3 against' THE PERSON, an Act respecting, 32-33 Vict., ch.20 1<^^ Ore, Miners removing, with intent to defraud 447 Indictments • • • Oil Wells, drowning, &c ^^^ Destroying machinery, &c • "^^ Oysters, stealing, or dredging for 424 425 Indictn .it • • • •, • y '"A" jok Indictment for using the dredge in the oyster hshery of another 425 P. Partners, larceny by Indictment Peace ox Public Works, Act for the better preservation of, 452 454 752 726 726 32-33 Vic, ch. 24 Perjury, Act respecting, 32-33 Vict., ch 23 Punishment for '|g Indictment In insurances cases .. •• ••••••• Prosecution for, ordered by Judge, &c., «c Proof Subornation of. All evidence material with 'T* Respect to Perjury Petit Treason abolisueh 738 739 743 744 744 225 INDEX. 791 PaOb .. 184 .. 187 .. 189 .. 190 .. 220 .. 221 .. 221 62-190 Paob . 423 257 2£8 ... 747 ct., ... 161 ...447 . . . 448 ... 680 . .. 681 ... 424 . . . 425 lier 425 .. 452 .. 454 .. 726 .. 726 .. 746 .. 738 .. 739 .. 743 .. 744 ,. 744 ,. 727 Pigeons, killing or taking • • Plants, destroying, growing in any garden 676 Indictraenl after a previous convic : on 677 Destroying, growing elsewhere ^> Stealing in garden *** Stealing, not in garden ■**" Ponds, injuries to "°* Indictment for breaking down the dam of a fish-pond 684 Indictment for putting lime into a fish-pond 685 Indictment for breaking down a mill dam o«» Poison. Administering poison, &c., &o., so as to endanger life, or with intent to injure, &c., &c •^56 Indictment, for administering poison so as to endanger life. ... 267 Murder by .• J"^ Administering with intent to murder ^i" Post Offices, larceny respecting, mails, &c., &c 399 Principals, in the second degree, and acccessories, ) >w punished under the Larceny Act "19 Property, stolen elsewhere, bringing same into Canada 627 Public Bcildinq, setting fire to 651 Setting fire to other buildings. Public Officers, larceny by . • Indictment . 651 663 565 564 Embezzlement by °^t Indictment °'"' Q. Queen's ships, setting fire to Queen's dockyards, setting fire to R. 650 650 701 702 307 308 308 Kafts, cutting adrift Indictment Rape. Punishment •. • • Carnal knowledge defined Indictment *.*.'V. '.*.*. 3*08-313 Remarks : v * ' oi ^ Procuring the defilement of a woman or girl ^J -^ Indictment • • • qi ^ Carnally abusing children under ten years of age di4 Carnally abusing a girl above ten and under twelve years of age • * ' 315 792 INDEX. Paqb Indictment 315 Indecent assault on females, or attempt to abuse a girl under twelve 317 Indictment 317 Railway, unlawfully and maliciously throwing upon or across, any wood, stone, &c 268 Taking, removing or displacing any rail, sleeper, &c 268 Turning, moving or diverting any point with intent 268 Shewing, hiding or rcrnoving any signal or light upon or near to any Railway 268 Doing any act with intent 268 Throwing, &c., against any Engine, Tender or carriage, &c., with intent to injure or endanger the safety of any person thereon. 268 Doing any unlawful act or omitting or neglectmg some act to the danger of the safety of persons on a railway 269 Indictment for endangering by wilful neglect the safety of Rail- way passengers 269 Remarks 270 Penal clauses under General Railway Act of 1868 272-275 Remarks 275-279 Manslaughter, under General Railway Act 213 Railway Tickets, &c., stealing 436 Railway Station, setting fire to 649 Railway Trains, injuries to 687 Injuries to by unlawful act or wilful omission, &:c 688 Indictment 689 Receipt. The giving of same by keeper of any warehouse, &c., before delivery of goods to him 576 Religious Congregations, disturbing 282 Report by the select committee of the House of Commons on tiie " Homicide Law Amendment Bill." 217 Restitution of stolen property 628 Remarks , , 628-633 Real Estate, stealing Documents of Title to 431 Indictment 431 Records, &;c., stealing 433 Indictment for stealing a Record 434 Indictment for taking a Record from its place of deposit 434 Restitution of stolen goods 628 Royalty, (see Mines). 448 Rioters. Demolishing buildings, &c 661 Indictment 662 Injuring buildings, &c 662 436 649 687 688 68*J 576 282 ... 628 628-633 . . . 431 ... 431 . . . 433 , . . . 434 ... 434 ... 628 ... 448 ... 661 ... 662 ... 602 INDEX. 793 Paoh Inclictineiii. ^^'■^ River Basks. Damaging or destroying bank, dam, wall, &c 082 Indictment • ^83 Injuring piles, &c 683 Indictment '^'84 Robbery from the person 457 On trial of, may be convicted of assault with intent to rob 457 Indictment for stealing from the person 458 Indictment for robbery 400 Remarks 458-474 With aggravated circumstances 474 Indictment for robbery by persons armed _ 475 Indictment for assault by a person armed with intent to com- mit robbery 475 Indictment for robbery by two or more persons in company. . . 475 Indictment for, together with one or more person or persons, assaulting with intent to rob 470 Sea Banks. Damaging or destroying bank, dam, wall, Ac 683 Servants, larceny by 542 Indictment 643 H Embezzlement by 544-503 Indictment 549 Remarks 546-503 Shoot, attempting to, wounding, kc, with intent to do grievous bodily liarm 244 Indictment for wounding with attempt to maim 245 Remarks 245 Ships, stealing from 537 Indictment for stealing from a vessel on a navigable river 538 Setting fire to 695 Indictment 696 Setting fire to, with intent to prejudice owner, &c 695 Indictment • 696 Damaging, otherwise than by fire 698 Setting fire to parts of • . . 702 Indictment 702 Shipwreck, stealing from 540 Having property of, in possession 540 Offering such property for eale 541 Indictment 542 Offences respecting 243-702 Sodomy. Punishment 344 Indictment 344 Assault with intent to commit sodomy, indecent assault on males 345 Indictment 346 794 INDEX. Paoh Soldiers, inducing to desert 754 Spring Guns. As to setting, &c., with intent, &c 265 Indictment 266 Stacks, setting fire to ^^ ^ Indictment for setting fire to stack of wheat 671 Stamps, Act for the avoidance of doubts respecting larceny of. . . 640 Stealing in a dwelling-house to the value of $25 529 Stef-ling from the person *^' Stolen Goods. Eeceiving same 607 As to indictment V :VVV'\:-' yr •••■■■ IC ^^^ Receivers may be charged with substantive felonies in the same indictment ^^^ How Jury may convict V'l ; •, c, n Receiving, &c., knowing the same to have been stolen oio Indictment against the receiver of stolen goods for a substantive felony ; ••••.•••.••:•.•:•• ^]l Indictment against the receiver and principal jointly. . . ••••••• "i^ Indictment against the receiver as accessory, the principal hav- ing been convicted . : • •; ' v '^ * " ' ^ ladictment against the receiver, where the principal offence is a misdemeanour • • • ^13 Remarks ; bl4-blo Principals^ in the second degree, and accessories, how punish- able 618 Restitution of stolen property • 628 Taking a reward for helping to the recovery of stolen property, &c.,&c 6J^ Indictment Wd Advertising a reward for return of ooo Apprehension of offenders, search warrant, &c 637 Suicide • • ^^^ Attempt to commit • 192 Stores, military and naval 758 Stores, marine, dealers in 619 T. Telegraphs, injuries to 688 Tenant, larceny by '• 5*56 lujuries to buildings by 664 Threat. Obtaining the execution of a deed, &c., &c., by threats or violence ^^6 General clauses '*°' Timber. Offences concerning timber found adrift 626 Paob .. 754 .. 265 .. 266 .. 669 .. 671 .. 640 .. 529 .. 457 ,.. 607 ,.. 608 me .. 609 ,.. 609 .. 610 ive ... 611 ... 612 IV- .., 613 s a ... 613 514-618 8h- ... 618 ... 628 . .. 6.33 ... 633 . . . 635 ... 637 ... 190 .... 192 .... 758 ... 619 688 566 664 486 487 626 INDEX. 795 . Paob Cutting loose cribs of ' 701 Setting fire to 655 Toll Bars, injuries to 686 Trade Marks Offences Act, (see ForgPi-y) 113 Trades Union Act 292 Trustee fraudulently appropriating property 573 Sanction of Attorney General or Solicitor General before pro- "'' ; ceeding to prosecute 573 Indictment against Trustee for fraudulent conversion 583 -, .Stealing or cutting 438 '■^ Setting fire to 6.55 Trees, destroying, &c 672 Indictment '.".'1 ',','.'. 673 Damage to the amount of twenty-five cents v; .... .... 674 Second offence, third offence - 674 Indictment after two previous convictions 675 Turnpike Gates, destroying 686 Indictment ' 687 Vagrants, an Act respecting, 32-33 Vict., ch. 28 769 Punishment 770 Venue, in uttering or putting off false or counterfeit coin 35 Venue, in uttering a forged foreign bill or note 148 Venue, in trial of murder in certain cases 226 Venue, in certain cases under Larceny Act 638 Punishment 639 In cases of Perjury 743 Vessels, placing gunpowder near, with intent, &c 697 Shipwrecked, offences respecting 243-540-702 Viaducts, injuries to 685 Vegetables, destroying, growing in a garden 677 Destroying, growing elsewhere 677 Stealing, growing in a garden . . 444 Stealing, not growing in a garden 440 Valuable Securities, larceny of 425 Indictment 426 Violence, threats and molestation, an Act to amend the Crimi- nal Law relating to • • 290 AAA T I ml "it mi m^ i U I 796 INDEX. PaOI Voluntary ani, Extra Judicial OATHa.an Act for the ««PPre«««J.^52 of ■• W. Works of Art, injuries to. 691 537 Wharf, stealing from.... ^^^ Indictment . 432 Will, stealing, Ac, Ac ^^^ Indictment , Wounding, with intent to murder. Wounding, with intent to maim, &c. Wounding, unlawfully, with intent to do grievous bodily harm . . Punishment.... •••• • ;."' ' Indictment for unlawful woundmg . Wrecks, oftences respecting Y. 227 244 249 249 261 .243-540-702 Yarn, stealing, in process of manufacture . 535 96 i 38 4 Paoi «B8ion ...747-752 691 537 538 432 432 227 244 lann.. 249 249 261 243-540-702 535