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CI
WITH
Case
THE
CRIMINAL STATUTE LAW
OF THB
DOMINION OF CANAdX' "'^'^^
s
RELATINa TO INDICTABLE OFFENCES,
WITH FULL _^XT AS REVISED IN 1886, AND P0T INTO FOKCB BT
BOTAL PROCLAHATION ON THB IST DAY OF MARCH, 1887,
AND
Cases, Notes, Commentaries, Forms, etc., etc.
B7
HENRI ELZfiAE TASCHEREAU,
One q," the Judges of the Supreme Court of Canada.
SECOND EDITION,
REVISED, RE-AERANGED AND ENLARGED.
CARS WELL & CO., LAW PUBLISHERS.
1888.
f
Entered according to Act of the Parliament of Canada, in
the year one thousand eight hundred and seventy-four,
by Henri Elzear Taschereau, in the office of the
Minister of Agriculture.
%
MONTREAL :
PEINTBD BY JOHN LOVBLL & SOW.
1883.
PKEFACE.
The passing into law, by Royal Proclamation, on the
1st day of March last, of the Revised Statutes of Cu.iada.
has rendered necessary the publication of a new edition
of this work, adapting the references, notes, commen-
taries and forms contained in the previous edition to
each section they respectively apply to of the Criminal
Statutes as they now stand consolidated and revised.
The occasion could not be lost of bringing the collection
of the English Crown cases down to the latest possible
date, and thfs will be found to have been done, as
completely as the character of the book would permit,
down to the Ist day of January last.
To these have also been dded a large number of
cases from all the Provinces of the Dominion, principally
selected, for obvious reasons, from those determined
since the Criminal Statute Law was made uniform
throughout the Dominion in 1869.
The profession may judge, by the number of these
additional references to the cases, of the extent of the
enlargement of the book in this respect alone. The first
edition contained 1984 references; this one has 800
more : in all 2784.
Another most important addition to the work, and
one which, it is confidently believed, must greatly en-
hance its value, are Mr. Greaves' MSS. notes, on various
subjects, which the author, at different times, has been
IV
PBEFACB.
favored with, and which are now, for the first time,
published, with the eminent writer's kind permission.
These will be found scattered throughout the book under
the sections of the Statutes upon which they respectively
bear. Special attention is called, in this respect, to the
note on new trials and venire de novo, page 991, and to
the note on section 37 of the Offences against the person
Act, page 1081.
A number of statutes, with full text, notes and cases,
not comprised in the first edition, will also be found in
this one. It was at first intended to give it a still wider
scope, and to include, with notes, commentaries and the
cases relating thereto from England and all the Pro-
vinces of the Dominion, the penal clauses comprised in
the CustoTns Act, the Inland Revenue Act, the Indian
Act, the Government Railways Act, the Trade Marks Act,
the Postal Service Act, the Banks and Banking Act, the
Wrecks and Salvage Act, and various other federal acts,
throughout which are to be found enactments creat-
ing not only a large number of penalties recoverable
under the Summary Convictions Act, but, also, in many
instances, misdemeanors and felonies of a grave nature.
This would, however, have necessitated the publication
of the work in two volumes, and would have added so
much to its cost that, on the advice of the publishers,
this intention had to be abandoned.
Limited as must necessarily be, in Canada, the circu-
lation of any book on Criminal Law, it is obvious that,
for a volume on that class of statutory offences, it would
PREFACE. V
be still more so, and consequently, altogether inadequate
to its cost. Should the Federal Government deem it
advisable to give any assistance towards defraying the
disbursements, the volume may be published separately.
The present one as it is may, it is hoped, be of some
use to the profession, and this will be a full reward
for the no small amount of labor necessarily bestowed
upon it.
To C. H. Masters, Esq., of the New Brunswick Bar,
Assistant Eeporter to the Supreme Court, I am
indebted for much valuable assistance, and for the
Index, Tables of Cases, Statutes, etc.
Ottawa, February 16, 1888.
11 Blandford Square,
T> ,r T .• m r March*!, mi.
Dear Mr. Justwe Taschereau,
/ send you by book post my notes.
They have been throvm together at intervals, and OA-e rudis et indigesta
moles, and far from what I would have wished; indeed, so much so,
that I have doubted about sending them; but, on the whole, feeling that
you will be kind enough to look with an indulgent eye upon them, I
think it better to send them, as they may suggest some points that have
not been apparently so fully considered as they deserve
I wrote these papers in order that they nvight as far as I could clear
up these questions, and you are perfectly at liberty to make any use of
them you may think Jit ; and should you deem them worthy of a place
in your valuable work, I shall indeed deem it a very high honour in
everyway
C. S. Grbaves.
■
vi
PREFACE.
PREFACE TO THE FIRST VOLUME OF THE FIRST EDITION
(part.)
Tlie following pages are hardly any thing else but a
compilation. They may, nevertheless, perhaps prove
useful
It has not been forgotten that
Longum iter est per prseceptn,
Breye et efficaz per ezempla, — Seneca.
and the reported English Crown cases will be found
numerously cited The weight
of their authority and their practical impoitance, for the
Dominion of Canada, have been largely increased by the
enactment of the Criminal Law Consolidation Acts of
1869, based, as these 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 cor-
responding clause of the Imperial Statute, and any mate-
rial difference between both mentioned.
The annotations made by the learned Mr. Greaves,
Q.C., on " Lord Campbell's Acts," of 1851, and the Con-
solidated Acts of 1861, have been compiled and inserted
(under each section.) These annotations are rendered the
more valuable by the fact that these Statutes were framed
by Mr. Greaves who, it will be remembered, was said by a
high authority in England, in 1874, to be "the most
eminent living writer ou the subject of Criminal Law."
PREFACE.
VU
PREFACE TO THE SECOND VOLUME OF THE FIRST EDITION
(part)
"11 Blandford Square,
'* February 18, 1876.
"Mr. Greaves presents his respectful ccmplimmts to Mr. Justice
Taschereau, and begs very cordially to thank him for his very valuable
present, and still more so for the very great attention and might which
he has given to Mr. Greaves' notes and observations. It is, indeed, a
very great gratification to Mr. Greaves to think that he may have been
of some use towards the completion of the Canada Criminal Law. Mr.
C. eaves has not been able to do more than cursorily look into the book;
but he has seen quite eno^h to satisfy him that it has been prepared
with great care and ability; and he fully agrees with almost every remark
in it, and especially with the objections to the new Larceny and
Forgery clauses. On one point only, Mr. Greaves would crave to make
the enclosed reply. ^^
Mr. Greaves' reply is reprinted at page 375 of this volume Cfol-
lowing the remarks it refers to.)
A TABLE OF RFONAL YEARS.
FOR CONVKNIENCE OP KKKEIIKNCR TO THE ENOMSII STATUTES
AND LAW RKPOUTS.
Bovr.HEiaifB.
William I
William II
Henry I
Stephen
Henry II
Richard I
John
Henry III
Edward I
Edward II
Edward III
Richard II
Henry IV
Henry V
Henry VI
Edward IV
Edward V
Richard III
Henry VII
Henry VIII
Edward VI
Mary
Philip and Mary
Elizabeth
James I
Charles I
The Commonwealth.
Charles II.»
James II
Comniencomeiit of Kelgn.
December 25, 10C6..
September 26, 1087.
August B, 1100
December 26, 1136 .
December 19, 1164..
September 3, 1189...,
May 27, 1199
October 28, 1216
November 20, 1272..
July 8, 1307 ,
January 26, 1327....
June 22, 1377 ..
September 30, 1399 .
March 21, 1413
September 1, 1422...
March 4, 1461
April 9, 1483
June 26, 1483
August 22, 1486
April 22, IfiOg
January 28. 1547
July 6, 1653
July 25, 1564
November 17, 1558..
March 24, 1603
March 27, 1626
January 30, 1649
May 29, 1660
February 6, 1685
L«iigth
Reign.
21
13
36
19
36
10
18
57
3S
20
51
23
14
10
39
23
3
24
38
7
2
4
45
23
24
11
37
4
•Although Charles II. did not ascend the throne until 29th May. 1660
his regnal years were computed from the death of Charles I., January 13!
1649, so that the year of his restoration is styled the twelfth of his reign
TABLE OP EEGNAL YMB.-~^(^Continued.)
SOVEHEIGNS.
William and Wary
AoDe
Comce. uement of Reign.
George I ..„
George II ..
George III.,
George IV.,,
William IV.
Victoria
Feb-uary 13, 1689..
March 8, 1702
August], 1714
Juue II, 1727
October 25, l.dO....
January 29, 1820...
June 26, 1830
June 90, 1.837 ",.
Length
RelgB.
14
13
13
34
60
11
7
.1 & 2 Wm. IV.
(I
It
({
((
((
1831
1832 2&3
1833 3&4
1834 4&5
1835 5&6
1836 6&7
1837 7Wm.IV.andl
1838 1&2 Vic.
1839 2 & 3
1840 3&4
1841 4&5
1841 5
1842 6&6
1843 6 & 7
1844 7<fe8
1845 8<fe9 '<
1846 9(ifc io <i
1847 10 & 11 «
1848 „li & 12 H
1849 12 & 13 ti
1850 13 Jt 14 «
1851 14 & 15 (,
1852 15 & 16 "
1853 16 & 17 i<
1854 17&18 "
1855 18 & 19 u
'866 19 jj 20 "
1857 20 «
1857 20 & 21 «
1858 .21 &22 «
18d9 22 «
Vic.
(I
«
((
i(
u
u
u
u
((
18S9 .22&23 Vic.
I860 23 & 24 "
1861 24&25
1862 25-&20
1863 26 A 27
1861 27 & 28
1865 ,....28&29
1866 29&30
1667 30&31
1868 31&32
1869 ..32 & 33
1870 33 & 34
1871 , 34&3J
1872 35,^ 36
1873 36&37
1874 37&38
1875 38 & 39
1876 39&40
1877 40&41
187e 41&42
1879 42 & 43
1880 43 A 4^.
1881 44 4 45
1882 45 & 4e
1883 46&47
1884 47&48
1885 48&49
1886 49&50
1887. 5C&51
1888 51 & 62
«
((
It
((
u
It
II
It
It
It
II
Length
Reign.
14
13
13
34
60
11
7
TABLE OF STATUTES.
EXTRA- JUDICrAL OATHS.
R. S. C, c. 141.
Section 1. Penalty for unlawfully administering oath .^*"i
2. Act not to extend to certain oaths ""'.*. 1
3. Solemn declaration ma, be received '..'".'.'. 2
4. Who may take aflSdavits in insurance cases .'.*.' 2
Sch. Form of solemn declaration 2
ACCESSORIES ACT.
R. S. 0., c. 145.
Section 1. Accessories before the fact may be dealt with as principals. 23
2. May beind-'cted as such or as substantive felons 28
3. Principals in first and second degrees punished alike...... 28
4. Accessories after the fact maybe indicted as such oras subl
stantive felons og
5. Punishment of accessories after the fact .',"[ 29
6. Prosecution of, after conviction of principal ...*............' 29
7. Trial of abettors in misdemeanor. '" 29
8. And in offences on summaiy conviction ..".'* 29
TREASON ACT.
R. S. C, c. 146.
Section 1. Compassing death of Sovereign qq
2. Army officer or soldier corresponding with enemy "'. 30
3. Compassing deposition of Sovereign and other offences...... 20
4. Conspiracy to intimidate legislative body 31
5. Procedure and evidence 31
6. Foreigner levying war in Canada to be tried by court mar"
t'al 31
7. And British subject in company with foreigners, the like 31
8. Venue and punishment as to certain offenders 32
9. Statute 25 Ed. 3, c. 2, not affected by act '....."..*.... 32
^" TABLE OP STATUTES.
RrOT ACT.
R. S. C, 0. 147,
Section 1. Riotous assembly may be dispersed by proclamation 33
2. Punishment for hindering reading of, or disobeying pro-
clamation " O f
3. Apprehension of offenders in such case....."!....... 33
4. Dnlawful meetings for drill prohibited..."'.,!.........'....!!!!!! 34
6. Punishment of persons acting as instructors ....„!!!!!!!!! 34
6, And of persons receiving instruction 34
7, Meeting may be dispersed, and persons attending it ar-
rested
8, Time for prosecution under four preceding secUons'limi'ted 35
». Kioters demolishing churches, etc 35
10. Rioters injuring buildings, etc ..!!!....!...... 35
11. Punishment for unlawful assembly ....!!!„.!!.!!!!!." 35
12. Punishment for rout !,*
13. Punishment for riot *!_
14. Punishment for affray .'."!,„',',",
PERJURY ACT,
R. S, 0., c. 154,
Section 1, Punishment of perjury and subornation of perjury 4,
2, What shall constitute perjury .,
3, Making false affidavit in one Province" to'be used in"an.
other
4. Judge may direct prosecution for perjur!r"committed before
him
5. All evidence material with respect to perjury!!!..."!!!!! !!!!!!." 42
ESCAPES AND RESCUES.
R. S. 0., G. 155.
Section 1. Felonious rescue
2. Escape or rescue from lawful custody...."'.,.... 57
3. Escape while being conveyed to a penitentiary 57
4. Escape from a penitentiary while at work 57
5. Breaking out of a penitentiary '"'"" .'
6. Rescuing prisoner from a penitentiary....'..'., 57
7. Keepers allowing prisoner in penitentiary to'esc'ape !!!!!!!!! 53
8. Unlawfully procuring discharge of prisoner 58
9. Escape from reformatory prison or school " 50
10. Assisting, etc., in such escape .„
11. Punishment of escaped prisoners ..".," gg
TABLE OF STATUTES. xiii
OFFENCES AGAINST RELIGION.
R. S. C, c. 156.
Section 1. Obstructing or assaulting a clergyman in the discharge of
2. Disturbing congregation met for religious worship!!!... .!!!!! 64
OFFENCES AGAINST PUBLIC MORALS.
R. S. C, c. 157.
Section 1. Punishment for sodomy
2. Attempts..... .!.!.!.....!!..!!!!!! g?
3. Seduction and unlawful intercourse with idiot" et'c.*.'.*...! .!!!! 68
4. Seduction under promise of marriage.. .' qq
5. Inducing resort for carnal illicit knowledge..]!!!!!.!!! !!!. " 69
6. Evidence, Ac, on proceedings under the three last preced^
ing sections
7. Procuring defilement of girl and proceedings !!!..!,! 70
8. Punishment of loose, idle or disorderly persons, or vagrants 71
OFFENCES IN RELATION TO MARRIAGE.
it. S. C, 0. 161.
Section 1. Unlawfully solemnizing marriage, etc 75
2. Procuring feigned marriage, etc .....!!!!!!!!!! 75
3. Solemnizing marriage in violation of provincial law 75
4. Bigamy •••'■••• ^^
OFFENCES AGAINST THE PERSON.
R. S. C, c. 162.
Section 1. Interpretation " loaded arms "
2. Punishment of murder !....!!... it]
3. Conspiracy to murder !!!!!!!!!!!! u,
4. Accessory after the fact to murder!!.!!!!!!!! !!!!!! jj
5. Punishment of manslaughter ........!!! uq
6. Excusable homicide
7. Petit treason ^*^
8. Poisoning, wounding, etc., with intent to murder u?
9. Destroying buildings, with like intent ,52
10. Setting fire to ship with like intent ! j.f
11. Attempting to poison, shoot, drown, &c., with "like "intent! 152
12. Attempting murder by any other means irk
13. Attempts to maim, disfigure, &c ,,l
14. Inflicting grevious bodily harm ..".""!".' jg^
15. Attempts to choke, etc., in order to commit an offence! 166
16. Using chloroform for like purpose " jgj
XIV
TABLE OF STATUTES.
I I
(Ofpenoes against the Pmsor^-iConiinued.)
17. Administering poison bo as to endanger life is7
18. Administering poison with intent to injure .. ler
19. »I-usage of apprentices, servants, Ac ,««
20. Exposing children **
21. Causing bodilj harm by explosives^.'."".".'... "' Vll
22. Sending gunpowder, Ac, with intent to do bodil"y"ha'n;i"::. 174
23. Placing explosive near a building or vessel .!..... Ju
24. Setting spring-guns, Ac '*
25. Placing things on railway to end'ange'r'pais'engeM.Z'.""."." 177
27. ^oing or omit ing anything to endanger passengers..:... 178
23. Injuries by furious driving ore ' no
29. Leaving unguarded holes cu't'fo; pu;pos";rf;btein"i;'g";;; m
30. Leaving unused mine or quarry unguarded ^ Z
31. Second offence °^
32 Ifloss of life occurs offenceto'be'mans/an'ghte;."::."::::;.*:'*'" {ll
33. Negligently causing bodily injury "" ,„
34. Assault with intent to commit felony.'.'.".".'.'. \Z
35. Assault occasioning bodily harm ,0!
36. Common assault....
37. Rape.... I.. .'.'.'.'.'.'.'.'.'..'.".". ^^^
38. Assault with intent to c'o"m'm"i"t'rap'e!l'.'.' Ill
39. Abusing a girl under ten ,
40. Abusing a girl between ten and't'wei've".'.'.*.".'.' lli
41. Attempt to commit either of the last two offfe'n'c';sr:::::.":" 20?
1 cS^sc^r'r"^^^^'''"'"^^ ^^^
46. Kidnapping ' ^15
47. Attempt to procure abortion.'.'.'.*.*.' l^^
48. Procuring things to cause abortion..*.*.*.*!....! ,0^
49. Concealing the birth of a child ■" 00,
LIBEL ACT.
R. S. C, c. 163.
Section 1. Publishing, Ac, libel with intent to extort money 226
2 Pub .shing defamatory libel, knowing it to be fL Z 225
3. Publishing any defamatory libel f
4. Truth of defamatory matter a defenii^. '..'.'.'.'.'.'! i«
5. Pub ication without authority of defendant a 'd'e'l^nc'e:'.'.'.'.'.'." 225
6. Publication by order of legislative body „«
7. Proceedings in such case °
8. Evidence in such case... ^^^
226
Secti
TABLE OF STATUTES. xv
LARCENY ACT.
R. S. 0., c. 164.
on 1. ShortTitle
2. Inlerpretation '■•■-■'''''^'^^I"''Z.'Z^""^^^^ 278
3. All larcenies of the same nature .'. 281
4. Bailees guilty of larceny gel
5. Punishment of larceny ...."......." 290
6. Larceny after conviction for felony ......... . oqi
7. Stealing cattle ;";;;;;'; 291
8. Killing cattle, &c., with intent to steal..... .....'. 293
9. Stealing domestic animals .'..„ 293
10. Killing pigeons '_"" 294
11. Stealing oysters, &c !'.!........""!..."!„"! 294
12. Stealing valuable securities .........'....,'.'. 295
13. Stealing deeds, &c oa,
14. Stealing wills, &c """".".*.! 302
15. Stealing records ."*......*.'.....*.*.*.*.'.* 390
i6. Stealing railway tickets ,««
17. Stealing fixtures .^".^Z" '.'.". '.'.".'.'.*..'." 305
18. Stealing trees in parks, &c..,. ......*.."..."!"*„"* 307
19. Stealing « elsewhere .....!'!!»!...!!.".... 308
20. Receiving stolen trees q,n
21. Stealing fences .3.V.Z".*.'.'.'.'.".'.'.''**"'' 3io
22. Possession of stolen wood '........!....!!!!!!!!! 310
23. Stealing fruit in gardens, &c su
24. Stealing vegetables elsewhere """^^^Zl^^^^^l"'"^^^ 312
25. Stealing from mines o,..
26. Fraudulently removing ore in mines .'."!!!!!.."!' 313
27. Fraudulently concealing royalty ..."!!.'.'.*!...'." 314
28. Selling or purchasing quartz, &c., without authority,'.]."."!.' 314
29. Purchasing gold in quartz, &c., without giving proper
'•^ceipt .. *^ 314
30. Possession of smelted gold, etc., prima/acie evidence that
same has been stolen g, .
31. Defrauding partners, etc., in mine qi^
32. Robbery ."Z!!!"!""."*.'*' 315
33. Assault with intent to rob '.'.'.'.."'.'.*.'.."..*.','....".*" 315
o4. Robbery with violence,etc [[[[[[[ 33.
35. Sacrilege "!1."".'..'.'."".*."."!!!. 349
36. What is part of a house .*,"_ 3-,
37. Burglary .............!!.......,.. 351
38. Punishment of burglary *,, 3.,
39. Entering house by night with intent, etc ...'...'..!!!...!.. 356
40. Breaking into,eui., building within curtilage....".... ...!*!.'.. 353
XVI TABLE OF STATUTES,
Larceny Act— (Continued.)
41. Housebreaking, etc 361
42 Housebreaking with intent, etc 365
43. Being armed by nigbi with intent, etc 367
44. Being armed after previous conviction 367
45. Larceny in the house 371
46. Larceny with menaces 374
47. Stealing goods in process of manufacture 378
48. Stealing goods intrusted for manufacture 379
49. Stealing from ships, etc 379
50. Stealing property under seizure 381
51. Larceny by clerks and servants 381
52. Embozalement by clerks and servants 383
53. Larceny by persons in the Queen's service 401
54. Embezzlement by persons in the Queen's service 401
55. Refusal to deliver up public books, etc 402
56. Stealing election documents 403
57. Stealing by tenants and lodgers 404
58. Stealing by partners 405
59. EmbezzUmer.t by bank officer 407
60. Agents, banker-, etc., embezzling property 407
61. Bankers fraudulently selling properly 409
62. Fraudulently selling property under power of attorney,... 409
63. Factors fraudulently obtaining advances 410
64. Definition of terms relating to factors 410
65. Trustees fraudulently disposing of property 411
66. Directors fraudulently disposing of property 412
67. Directors keeping fraudulent accounts 412
68. Directors v.ilfully destroying books 412
69. Directors publishing fraudulent statements 412
70. EmbezzlementbyoflScers, etc., of unincorporated Bocieties, 412
71. All questions must be answered, etc 413
72. No civil remedy affected 413
73. Keepers of warehouses, etc., giving false receipts 413'
74. Owners soiling after advance by consignees 414
75. Making false statements in receipts for grain, etc 415
76. As to partners 4^5
77. False pretences 42o
78. Inducing persons by fraud to execute deeds 440
79. Pretending to have inclosed money, etc., in post letter.... 440
80. Winning money by cheating at games 442
81. Obtaining passage in steamers, etc., by false tickets 443
82. Feloniously receiving stolen property 443
83. Receiving in misdemeanors 444
84. Receivers in summary ofliences 444
TABLE OF STATUTES. xvii
Larceny Act— (Continued.)
85. Fraudulently depriving another of the use cf his property. 452
86. Punishment in such case where property is worth over
$200 45^
87. Appropriating timber, etc., found adrift 457
88. Bringing stolen property into Canada 453
89. Taking reward for recovery of stolen property 459
90. Advertising a reward for 46O
91. Concealment cf deeds, etc 4co
92. Provisions applying only to Quebec 461
93. Fraudulent sale of properly. 46I
94. Fraudulent hypothecation of property 461
95. Seizing township lands under execution against private
Person 4gl
96. Provisions applying only to British Columbia 462
97. False statements, etc., in transactions relating to land 462
98. Injaring, etc., anything on Indian grave 462
FORGERY ACT.
R. S. C, c. 165.
Section 1. Interpretation 4Pg
2. Possession, what 4f;g
3. Wliat shall be deemed forgery 453
4. Forging great seal, etc ' 439
5. Forging document with signature of Governor, etc 490
6. Forging letters patent ' ' ^qq
7. Forging public registers 490
8. Forging transfer of stock, etc .....!!'.,', 4{,i
9. Personating owner of stock l]] ^Iq
10. Forging powers of attorney _"*'" 40^
11. Making false entries in bankbooks .',..„'.... 494
12. Clerks making out tiaise dividend warrants ..'.,.. 4(5
13. Forging debentures, etc „.,..' 4c,7
14. Making plates for debentures, etc "„!„„',! 497
15. Making paper for debentures, etc *"."' 493
16. Possession of such paper, etc 493
17. Forging stamps, etc .".'.'.'.'."......„ 499
18. Forging bank notes .......[... 503
19. Receiving, etc., forged bank notes „!........!!! 505
20. Having moulds with words used for Dominion notes etc
o°*h^»^ ,'506
21. Proviso as to bills of exchange 503
22. Engraving plates for making bank notes 507
23. Engraving words, etc., on plates 607
/ file- '
Cf.'
,'. "if*
' "lift* i
1-f,
;f 5
xviu
TABLE OF STATUTES.
Forgery Act— (Continued.)
24. Having moulds with bankers names, etc 608
25. Forging or engraving plates for foreign bills 508
26. Forging deeds, etc sjq
27. Forging wills 611
28. Forging bills of exchange, etc 612
29. Forging orders, receipts, etc ,, 617
30. Drawing bills "per procuration" .. 621
31. Obliterating crossings on cheques 523
32. Forging debentures 523
33 Forging railway tickets 523
34. Forging proceedings of courts 623
35. Uttering false copies, etc., of records 624
36. Forging instrun ents of evidence 624
37. Uttering forged proclamation, etc 624
38. Forging registry of deeds ." 525
39. Forging orders, etc., of justices 626
40. Forging name of judge, etc "' 526
41. Falsely acknowledging bail ''..'....., 527
42. Forging marriage license 527
43. Forging or altering registers of births, etc 627
44 Forging, etc., certified copies of register 528
45. Demanding property on tbkged instruments 53o
46. Forging any document 53^
47. Forging documents in Iflw bills, etc 531
48. Forging instruments made out of Canada 533
49. Or payable out of Canada ,.....!..... 632
60. Forgeries punishable more severely than under this act..." 534
COIN ACT.
R. S. C, c. 167.
Section 1. Interpretation
2. Possession, what is
3. Counterfeiting current gold or silver coin „"
4. Coloring coin
P. Impairing coin ,,.
6. Unlawful possession of filings, etc ..........i......
7. Buying, etc., counterfeit coin .'...*.'.*.'.".'....*."
8. Importing counterfeiting coin '.'.."..'.'.
9. Exporting "
10. Uttering counterfeit coin ."."
11. Passing liglit coin
12. Having same in possession
13. Olfence under three last sections afte7previouy conviction.
635
536
637
639
541
541
542
543
543
544
644
544
647
TABLE OF STATUTES. xix
Coin Act— (Continued.)
14. Ottering foreign coin, etc 549
16. Counterfeiting, etc., copper coin .., 549
16. Uttering base copper coin 549
17. Defacing coin by stamping 549
18. Uttering coin 80 defaced 549
19. Counterfeiting foreign gold and silver coin 549
20. Bringing same into Canada 549
21. Penalty for uttering 55Q
22. Having in possession 550
23. Counterfeiting other foreign coin ,. 559
24. Making, etc., coining tools 551
25. Unlawfully conveying tools, etc., out of mint 555
26. Cutting, etc., counterfeit coin 555
27. When offence deemed complete 55g
2S. Unlawful manufacture, etc., of copper coin 556
29. Seizure of such coin 55g
30. Enforcing penalty. , '" 55,^
31. Recovery irom the owner in certain cases 557
32. Officers of customs may seize counterfeit coin 557
33. Uttering unlawful copper coin 557
34. Application of penalties ' 557
MALICIOUS INJURIES ACT.
R. S. C, c. 168.
Section 1. Interpretation ggo
2. Setting fire to church, etc 5^3
3. Setting fire to dwelling house, any person being therein... 561
4. Setting fire to house, etc 5g2
5. Setting fire to railway station, etc 555
6. Setting fire to Her Majesty's docks, etc se'g
7. S tting tire to any public building 5gg
8. Setting fire to other buildings " [ ggj
9. Setting fire to contents of buildings ....[ sgg
10. iUtempting to set on fire 5^0
11. Setting fire by negligence to forest, etc 571
12. The like, maliciously "" g^i
13. Destroying house with gunpowder, etc 572
14. Attempting same g,^2
15. Injuries to buildings by tenants 574
16. Destroying goods in process of manufacture 575
17. Destroying machinery g^g
18. Setting tire to crops of hay, etc 573
19. Setting fire to stacks of corn, etc 579
'4'
XX
TABLE OF STATUTES.
Malicious Injuries Act— (Continued)
20. Attempt in such case
21. Destroying hop-binds, etc !!!!Z1...'..*.!
22. Destroying frees In park, etc "'.*.....'...
23. Destroying trees elsewhere
24. Damaging trees
23. Destroying fruit, etc., in garden. ...........'..!!r'..
26. Destroying vegetables growing elsewhore...'.'..'.'
27. Destroying fences
28. Setting fire to coal-mine
29. Attempt "*"
30. Conveying water, etc., into mine ...........'
.'51. Damaging machinery in mine
32. Destroying sea-bank, etc .....'..".7
33. Removing piles in sea-bank, etc !........!!!.
34. Damaging fish-pond, etc .......*...".
35. Injuring public bridge, etc '.
36. Destroying turnpike gate, etc ...'.*....,
37. Damages to railway *'"'
38. Obstructing use of railway
39. The like by wilful omission or neglect...... ....
40. Injuries to telegraph, etc ",.".""
41. Attempt
42. Injuries to works of Art
43. Killing or maiming cattle
44. Attempting to poison, etc., cattle ....*.....!
45. Killingor maiming other animals
46. Setting fire, etc., to ship ".'."..!...
47. The like with intent to prejudice owners, etc...."
48. Attempting to commit such offences '.'.
49. Placing gunpowder near a ship with intent.'.!!.!
fiO. Damaging ships otherwise ._"
51. Exhibiting false signals, etc !..".
52. Injuring, etc., lighthouses, buoys, etc!!!.'.'..'."" .."!!!
63. Fastening vessels 'o buoys, etc !!!!!'..!!
54. Cutting booms, etc., adrift !.!!!!!!
55. Injuries to poll-books, etc .......!.','."..!.
56. Defacing, etc., land marks of Province...."!!!!!!!.."!
57. And of concession, etc
58. Damages not otherwise provided for exceed
69. The same not exceeding $20
60. Malice against owner not necessary
61. Act to apply to persons in possession of property Injured.! 611
... 678
... 579
... 680
... 680
... 882
.. 083
... 684
.. 684
.. 585
.. 585
.. 686
.. 686
.. 688
.. 688
.. 589
.. 690
. 691
.. 691
. 692
. 692
. 692
. 693
. 596
597
. 697
699
600
600
600
604
604
604
605
606
606
606
607
307
'ng|20 607
609
611
TABLE OF STATUTES.
XXI
THREATS ACT
R. 8. C, c. 173.
Section 1. Letters demanding money, etc., with menaces 013
2. Demanding money, etc., with menaces til5
8. Letters threatening to accuse of crime 617
4. Accusing, etc., of crime 619
6. Inducing person to execute deeds, etc., by violence 621
6. Immaterial by whom menaces are to be executed 622
7. Letters threatening to murder 622
8. Letters threatening to burn, etc., houses 625
9. Assault arising from combination 625
10. Assault with intent to obstruct sale of grain 627
11. Assaults on soamen, etc C27
12. Certain acts contrary to free action 627
13. Trade combination defined 628
14. Preventing bidding for public lands 629
16. Breach of contract endangering life, etc C29
16. Breach of contract by a corporation 630
17. Breach of contract by a railway company 630
18. Malice n^ed not be against a particular individual 630
19. Corporations to keep provisions posted up 630
20. Making gift, etc., for influence respecting a government
contract 631
21. Making gift, etc., to tenderer for contract 631
22. Public officers receiving gifts, etc., for assistance in such
contracts 632
23. Offenders disqualified 632
24. Time for prosecution limited 632
25. Violation of statute 632
26. Fraud or cheating 632
27. Destroying books, etc., to defraud credito"? 638
28. Transferring property to defraua creditors 638
29. Misconductof sherifits, etc 638
30. Embracery 638
31. Discontinuing ^ui <am actions 638
PROCEDURE ACT.
R. S. C, c. 174.
Section 1. Short title G40
2. Interpretation 640
3. Powers of Superior Court 641
4. Courts not to try certain oflFences 641
5. Justices, etc., not to try certain offences by explosives 646
6. Sessions not to try certain offences under Larceny Act.... 646
m
TADLE OF STATUTES.
7. OerUin magistrate, mny «c. nlono
«. Offence, within Juri.diction of the Admiral v'
B. Commitment and trial in Gasi.fi ®"
16. Venue in certain offence. . ^^^
17. Place of trial of accessories ^'^^
18. Place of trial for forgerjr offfences;:*.;.";; ^"
19. Place of trial for offences by kidmmnin., *^"
23. Uttering' counterfeit min «♦» i <'62
^». Apprehension of Dersnn /.ntnri™.*.- . 065
32. ^dictable offences on the high seas:::;:; fjf
37. W,rr»nl may b. I.,„ed on Su,ii',',Jic'Z til
i:H~:™~i -•==;;=
41. Service of summons ^80
42. Proof of service 680
43. Warrant for not ob^j"ing8u;;'^~ ''"
44. VVhat warrant shall contain. .. '^^
46. Seal of Justice "81
681
TABLE OF STATUTES. xxul
Proceki'hk Act— (Conlinued.')
46. Warrant in force until executed ^g\
47 Execution ofwHrrant esi
48. Who may execute , ^i
40. Bacl<ing warrants ,_ ^j
60. I'roceodini after arrest Qg2
fil. Search warrants in certain cases 682
62. And in certain other cases gg3
63. Search warrant for gold, silver, quartz, etc 683
64. Search for timber, etc 683
66. Search for forged notes, etc 684
66. Counterfeit coin, etc., may be soistd 684
67. Place of preliminary cTamination not an open court 685
58. No objection for defects 685
69. Adjournment in case of variance 686
60. Summoning witnesses qqq
61. Warrant for disobedience ggg
62. Warrant in first instance 686
63. Commitment of witness for contempt 686
64. Remand of accused qq-j
65. Verbal remand for three days 687
66. Hearing before expiration of demand 687
67. Admission to bail on demand 687
68. Forfeiting recognizance gg^
69. Examination to be in presence of accused 688
70. Depositions to be read to accused 688
71. Explanations to be made to the accused 688
72. Not to prevent giving confession in evidence .'..' 689
73. Proceedings on conclusion of evidence 689
74. Accused entitled to copy of depositions !.!!!..*...'.' 689
75. Recognizances to prosecute, etc .'..!.'!!!!!] 690
76. To be subscribed by Juatice ".'..".'.. 690
77. To be transmitted to Court 690
78. Commitment for refusing to give recognizance ............. 690
79. Release on discharge of accused !.........." 690
80. Preliminary proceedings in certain offences ,'..',." 691
81. Bail for felony not capital "......'.*." 691
82. Bail by judge of Superior or County Court ...."".'."..*..*. 692
83. Bail for treason or capital felony 692
84. Warrant of deliverance ..........!'...'.. 692
85 Conveyance of prisoners to gaol '......!** 692
86. Person apprehended in one division for offence committed
in another, proceedings (.go
87. Transmission of evidence in such case !'.!.!.!.*.*.'.". 693
88. Expenses of conveyance ],"][ gg.
^^^^ TABLE OF STATUTES.
Prooedube Act— (Continued.)
89. Receipf to constable for accused «„,
90. Payment of charges for conrejance ""." eH
91. Recognizances void in certain cases Zl
82. Duty of coroner in case of murder, etc '.■■■'■.■ eZ
93. Bail m such case
94. Order on admission to baii'.".*.".. lit
95. Peualtyfor contravention ZZ
96. Pro7ision3 to apply to all justices, eTc. "■■.■'."■.".' alt
97. Removal of prisoners from insecure gaol ..... lH
98. Direction to sheriff ^^^
99. Removal for trial... . ®^^
100. Removal after sentence ."'."." '.'."."."*." ^It
101. Arraignment of indicted prisoner ^H
102. Change of venue .... ^^^
103. Indictment need not be on parchmentlZ'.Z.* til
104. Venue in margin sufficient Zl
105. Abolitiou of benefit of clergy.. ':,
106. Several acts of treason may be charged .'.".■.■.".■ ..'.■.'■ 11:
107. Form of indictment for perjury Jg,
108. And for subornali)n of perj try .... »„„
109 Form of indictment for murder, etc.....Z 706
110. Form of stealing, etc., document of title to lands'.".".!!'. 727
1. Distmct act of embezzlement may be charged 7,7
lU. Form of indictment for obtaining property by false^or!-
tences '^
113. Intent to defraud need""not 'be state'd ".".!!"'"! Ill
114. Form of indictment for forgery igs
115. Form ofindictment for buying, etc., counier'fri't'coi".;. ■.'.■."* 729
16. Form of mdictmeat for malicious injury to property 730
11.. When ownership of property need not be alleged 730
18. Ownership of partnership property how laid "73.
119. Partners, etc., how described -„|
120. Property in roads, etc., how laid !.".*.,'. 73.
121. Ovvnership of property in possession of 'p'u'biic"offi'ce'rs"
how laid '
122. Property of boiy corporate.!!!!!!.. !!!!!.'.".'.'!!!!!!!.'.' [«
123. Venue in indictment for stealing oysters 736
124. In indictment for stealing minerals, property "I'n'whom'
i&ici
• ,, ,,,,, •■••• 7^ft
125 Stealing postage stamps, the like 737
126. Embezzlement by persons in the public service "t'he'iike!!! 737
127. Form of indictment for stealing by lodgers 737
128. Omission of certain averments, etc., not fatal..'.'.*. 733 .
129. Money or bank notes, how described , 747
TABLE OF STATUTES.
XXV
130.
131.
132.
133.
134.
135.
13G.
137.
138.
139.
140.
141.
142.
143.
144.
145.
146.
147.
148.
149,
150.
151.
152.
153.
154.
155.
156.
15,.
158.
159.
160.
161.
162.
163.
164.
165.
166.
167.
168.
169.
170.
171.
172.
173.
Procedure Act — (^Continued.)
Description of instruments generally 748
Description of forged instrument 749
Description of unlawful engraving ., 750
Joinder of accessories '50
Joinder of offences 11 larceny 750
Joinder of offences of stealing and receiving 751
Indictment of receiver 752
Indictment in misdemeanor 752
Indictment in joinder of offenders 753
Indictment after previous conviction 753
Preliminary requirements as to certain indictments 767
Postponing trial '"^
Effect of plea in abatement 776
Objection to indictment 778
Effect of pl»a of" not guilty" 787
Entering plea for defendant 788
Autrefois convict or acquit 791
Plea of attainder 803
Plea is case of libel 227
Special plea 227
Effect of plea of justification 227
Plea of not guilty in addition 227
Proceedings on indictmentfor libel 227
Costs in private prosecution for libel 229
Recovery of such costs 223
Appearance of corporation inaicted 804
Certiorari not required, etc 805
Notice to corporation of indictment 805
Proceedings on default 805
Ex parte trial in such case 805
Qualification of jurors 805
Juries de medietate linguae 806
Quake", etc., sworn as a juror 806
Peremptory challenge by prisoner 807
Challenges by the Crown 818
Jurors stood aside in catie of libel 818
Mixed juries in Quebec 823
Mixed juries in Manitoba 826
Talesmen 826
Jury may separate 827
Saving of powers of Court 831
View by jury 832
Duties of sheriffs on view 832
Swearing witnesses before grand jury 832
^^^^ TABLE OF STATUTES.
Prooedpbe Act~( Contitiued.)
374. Examination of such witness
175. Name of witness to be endor3edon"bm;:;Z:::: sll
176. .Vho may be examined ^
177. As to fees in such case "^^
178. Pull defence allowed .'..■'■■ ^^^
179. Address of counsel ^^^
181. Copy oimd.ctment to prisoners f,l
182. And of depositions ^^^
183. Verdict of attempt on triai"fo7c;mmi«;ng:;ff;'n;"e 'f'
treason.... tnough facts amount to
187. No inquiry concerning lands ®^*
188. oonviction ,„, c„.„.ta.„. o7bi;th-:.-;;;;;i-v„;-chiM ''*
197. The like in cases of frauds by a<rents "of ^^^
204. And of previous conviction of fraud"*Ptc""in"c.""u ^^^
535
TABLE OF STATUTES.
XXVU
206.
Procedure Act— (Continued.)
On trial for destroj-ing buildings, conviction may be of
injuring
207. Proof of previous conviction
208. Impounding documenfa
209. Destroying counterfeit coin
210. Attendance of witnesses
211. Arrest for non-attendance "
212. Witnesses in Canada but without jurisdiction of court..
213. Witnesses in penitentiary, etc
214. No incapacity from crime or interest "'"
215. Interest in question, etc., not to disqualify '.'........ 896
216. When defendant, etc., competent witness
217. In other cases not
218. Corroborative evidence necessary in forgery cases........
219. Quaker, etc., sworn as a winess "
220. Evidence of persons ill
221. Presence of prisoner at taking ...*...'.."
222. Use of depositions in such case "' ,
223. Evidence of statement of accused .'..!!..!."
224. Use of depositions taken on preliminary investigation"
225. Proof of trial at which perjury was committed
226. Evidence of carnal knowledge
227. Evidence at trial for child murder .."....,.
228. Evidence of ownership of timber
229. Evidence of coin being false, etc ."".".......
230 Proof of previous conviction
231. Proof of previous conviction of a witness I.
232. When attestation need not be proved
233. Proof of handwriting
234. Discrediting witness
235. Cross-examination as to previous statements in writing"
236. Proof of contradictory statements by witness
237. Variances how corrected
238. Amendment of indictment ....,!..... ^^^
2::9. Trial after amendment .......""'" _!!
240. Amending order to be recorded.
37
892
893
893
894
894
894
895
896
899
899
900
901
901
902
902
906
906
906
907
907
908
908
908
909
912
913
913
914
915
917
2-11. Second trial ^^^
242. Verdict, etc., valid after amendment.... l]l
243. Record in such case ^^^
244. Record of conviction or acquittal.. ^^^
245. Certain defects not fatal ..". ^^®
246. Certain defects not to stay or reverse judgmeni'afier ^^^
diet
ver-
247. Verdict not to be impeached for certain
jurors
946
fiV 4
^V
omissions as to
956
xxvm
TABLE OF STATUTES,
248.
249.
250.
251.
252.
253.
254.
255.
Sch
Procedure Act— (Continued.)
Costs on conriction for assault 953
How recovered ggi^
Restitution of stolen property „ __ 951^
Restitution of money taken from prisoner qqi
Acquittal for insanity ago
Order for safe custody in such case 9(53
Likeorder in certain other cases 952
Proceedings when prisoner found insane at trial 962
256. And in case of prisoner about to be discharged 9G3
257. Ordersforsafecustody in such cases „'„[[ 933
258. Removal, etc., of insane prisoner 933
259. Question may be reserved 9gg
2G0. Judge to state a case gg(.
261. Proceedings in Court of Crown cases reserved ." 966
262. flow judgment shall be certified []]]" qqq
263. Delivery of judgment .....,,.. 967
264. Case may be sent back qq-t
265. Writs of error
266. On what founded *.\,. ,'".'".."."
267. Proceedine;s in Court of Error /// 973
268. New trials '".'.'.."*.'....'.".'.*','.* 973
26f>. Judge, etc, in Ontario may reserve decision 1023
270. Procedure in High Court of Justice .'.'...AOU
271. Holding assizes ,^04
272. Gaol delivery ,q„.
273. Defence in criminal trial in High Court of Justice L...1024
274. Def-udant may be required to plead forthwith ".1024
275. Provision if defendant is not brought to trial within
twelvemonths ^^,,f.
276. Calendar of criminal cases for grandjury in N.S 1025
277. When sentence may be pronounced in N.S ..'.'.! 1025
278. Forms in schedule to be sufficient .,"!!!!l025
279. Army and navy laws not affected ...".'.1026
2. Forms of indictment 1031
3. Form of judgment of Court of Crown cases reserved...!.. 1036
972
972
Section 1
2.
3.
4.
6.
RECOGNIZANCES ACT.
R. S. C, c. 17&.
Surety may obtain order to render 1037
Sureties may arres^ etc .'." 1037
Application for bail ,..1037
Entry of render "..,.1037
Render in open court iq^q
TABLE OF STATUTES. xxix
Recognizances Act — (Continued.)
6. Arraigninent, etc., not to discharge recognizance 1038
7. Other rights not alFected 1038
8. Fines, etc., to be entered on a roll 1038
9. Duplicate roll to be transmitted to sheriff 1039
10. List of estreats to be prepared 1039
11. List to be submitted to a judge 1039
12. Court may forbear estreating 1040
13. Minuteon roll by judge 1040
14. Proceedings when lands are seized 1040
15. Affidavit of clerk at foot of roll 1040
16. Release of person in custody, etc 1041
17. Discharge of forfeited recognizance 1041
18. Return of writ 1041
19. Copy of roll, etc., for Minister of Finance 1041
20. Payments by sheriff. i042
21. Provisions applicable to Quebec 1042
22. Proceedings on estreat of recognizance in Quebec 1042
23. Transmission of recognizance in such case 1043
Bch. Form of writ of fieri facias 1044
FINES AND FORFEITURES ACT.
R. S. C, c. 180.
Section 1. Recovery of penalties when no other mode is pre8cribed...l046
2. To belong to the Crown in certain cases 1046
3. Or otherwise applied by Order-in-Council 1046
4. To form part of Consolidated Revenue Fund 1046
5. Limitation of actions io47
PUNISHMENTS AND PARDONS ACT.
R. S. C. c. 181.
Section 1. Punishment after conviction only io48
2. Degrees of punishment , io48
3. If offender is punishable under two or more acts, etc 1048
4. Conviction by verdict or on confession 1048
5. Sentence on conviction for treason 1043
6. Sentence on conviction for murder 1048
7. Order for execution JQ49
8. Report by ,adge IO49
9. Treatment of condemned prisoner 1049
10. Judgment of death where executed 1049
11. Sheriff,etc., to be present. io50
12. Justices, etc., maybe present 1050
XXX TABLE OF STATUTES.
PcNisHMENTS AND Pardons Aot— (Continued.)
13. Surgeon to certify death 105Q
14. Declaration to be eigned by sheritf; etc 106O
15. Deputies may act 2Q5q
*G. Coroner's inquest on body , 1050
17. Officers, etc., not to be jurors 1050
18- Burial ". ZZ[''Z^A050
19. Penalty for false certificate iqsi
20. Certificate, etc., to be sent to Secretary of State 1051
21. Saving clause as to legality of execution 1051
22. Judgment of death, other matters concerning 105I
23. Punishment for offence not capital 1052
24. Punishment for felony 1Q52
25. Second conviction for felony 1Q52
26. Term of imprisonment io52
27. Offender convicted of more offences than one 1053
28. Imprisonment in penitentiary io53
29. Reformatories 2054
30. Whipping ......1054
31. Sureties for keeping the peace, etc 1055
32. Notice to judge of want of sureties .■•. 1055
33- Fine ."."".".'.'."l055
34. Solitary confinement and pillory abolished 1068
35. Deodand 1068
36. Attainder ^Ogg
37. Heir may enter after death of person attainted 1069
38. Pardon jq^^
39. Effectof pardon jq74
40. Commutation of sentence io75
41. Undergoing sentence equivalent to pardon io75
42. Undergoing punishment, etc., a bar to further proceeding8l076
43. Royal prerogative saved io76
44. Rules as to executions , iq'jq
45. Rules to be laid before Parliament io76
46. Forms in Schedule to be used io76
47. Army and navy laws not affected 1076
Sch. Forms 1077
TABLE OP CASES CITED.
Rv.
V. R
Rv.
— 70, 244,
531,
PAGE
. 432
. 724
. 771
. 239
. 765
. 423
450,
, 796, 886
433, 434
289
389
433
424
... 499, 502
79 131
Allen V. Wright 573
■Allison Rv 10, 79,562
Allison, Re iq26
Amier, R v 363
— 563
— 519,651
— ...364, 898, 970
Andrews v. The People 834
Anon 141,187,297,562,1012
Apollon, The — ggj
Archer, R v. — ...151, 331,433,
870, 873
432, 436
Abbott
Abrahams
Abrahams
Abrabat
Ackrojd
Adam
Adams
Adarason
Aden
Adey
Ady
Airey
AH.day
Allen
Amos
Anderson
Andrews
Ardley —
Aris —
Armstrong —
Arscott
Arscott V. Lilley 73
^^ 866
Dundas 666
^"^ 276
— 637
— ....477, 499, 530
— 433
— 322, 327
Ash
Ashley v
Ashwell
Aspinall
Asplin
Asterly
Astley
579
648
73, 518
Aston
Athea
Atkin
Rr.
PAflE
482
340
939
Atty. Gen. v. Beaulieu 1044
Atty. Gen. v. Murphy 999^ jooe
Austin R V. 607, 712, 721,904
Austin & King's Case 298
Austrey R y 755
^'■ery - 250,512
■^y^^ — 121
Aylett _ 94^
-Ayley _ 77
Bad cock
Bail _
Bailey
Bain
Bainton
Baker
Baldwin
Ball _
Balls __
Bamfield —
Bank Prosecutions
Banks R y.
Bannen
Barber
Barker
Barstead's Case
Barnard R v.
Barnes
Barnes v. White
Barratt R v.
Barrett _
Barrow
8
505
305, 340, 343,
347, 370, 392,
443, 939
56, 365, 860,
971, 980, 1026
47
157,321
450
...406, 426, 914,
972,997
....388, 389, 509
519
900
142
7,553
15
349
810
427
...245, 426, 935
1026
169, 861
215, 4u3
199
xxxu
TABLE OF CASES CITED.
M
PAGE
Barry R v 722
Barllctt — 615
Barwell v. Winter8toke 687
Bass R V 239
Basjett — 187
Bate — 224
Bales — 434
Bathgate — 785
Baistone — 570
Batty — 395
Baiild — 637
Baxter — 445
Baynes r. Brewster 609
Bazely R v 240
Beacall — ....388,389,734
Beale — 191
Beard — 843
Beardmore — 776
Beuiimond — 398
Beaney — 291
Bcatty V. Gillbanks 39
Beckett V. Dutton 926
Beckwith R v 898
Beckwiih v. Philby 666, 676
Bedford Rv 394
Budiiigtield — 140
Beecliam — 435
Beeley V. Wingfield 957
Beere R v 829
Beeston — 903
Beetoa — 445
Bell — ....223, 771, 866
Belstead — 404
Beutield — ....716,721,751
Benge — 132
Bennett — 83,346,360
Bennett V. Watson 1060
Benson V. Offley 12
Bent R v. ...533, 782, 1028
B-iens — £41, 842
Beriau — 904
Bernard — 142,843
Berrimaa — 222
Berry — ....241, 791, 965
Berthe — 572, 579
PAQB
Berthiaume Rv 2!tO
Bertlea — 424
Bertrand — 829, 982, 999
Bessey v. Windham 998
Betts Rv 386,397
Bice V. Jerris 900
Bignold R v 846
Binghy — 8
Bingly — 330
Bircliall — 131
Birchenough — 20
Birch — 473, 870, 875,
877, 878
Bird — 261, 792, 794,
854, 864, 869,
870, 872, 875
Birkett — 468
Bishop — 214
Bissonnette — 171, 786
Bitton — 789
Bjornsen — 652
Blackburn — 406, 725
Blackham — 324
Blackstone — 487,497
dlain — 107
Blakemore — 969
Bleasdale — 890
Bleau — 572
Blenkinsop — 516
Bloomtield — 433
Boardnian — 476
Boden — 870
Bolland's Case 475
Bond R V 148, 800
Bonter — 900
Booth — 214
Booiyman — 389
Borthwick — 7,13
Bosser — 830
Boucher — 441, 624, 843,
868
Boulton — 435, 637, 734,
898
Bourdon — 786
Bourne — 993
TABLE OF CA.SE3 CITED.
XXXIU
Bourne
Bowden
Bo wen
Bowers
Bowinaa
Bow ray
Bowyer
Box
Bojce
Brakenridge
Bradford
Bradlaugh
paoe:
V. R 975
R V 372,380,
— 433, 529, 776,
949
— 390, 392
— 801
— 180
—• 600
— 514
— 160
-- 509
— 180,595
— 232, 724, 725,
770, 771, 898,
Bull
Bullock
Bulmer
Bunkall
Biinn
Burcb
Burge83
Burgoa
Burns, Ex parte
PAGE
240,
Bradshaw
Bramley
Brannon
945
— 585, 806
— 241,254
— 29
Brashier v. Jackson 928 930
R v^ I5c>, 770
239
394
800
343, 347, 348,
839
776
78
80, 150, 160, 847
Bray
Brazier
Bren
Brettle
Brioe
Bridgman
Brierly
Briggs
Bright V. Eynon ..„.. .i004, 1015
ijrirailow R v. 198, 873, 875,
Brookes — 927
Brooks _ 426,434
"•••oughton V. Jackson 674, 675
R v. 14, 79, 153, 223,
322, 337, 573,
778, 788
— 483
— 416
— 981
-- 312
— 969
..424, 432, 436
own
Browne
Brownlow
Bruce
Brunsby
Brummitt
Bryan
Brydges, Ex parte 138, 698
Brydges Rv 702
Buckley — 905,906
Burns
Burridge
Burrowes
Burrows
Burt
Burton
Butcher
Butteris
Butterwick
Bulterworth
Button
Cabbage
Cadtnaa
Gallan
Camfield
Campbell
Campbell
Camplin
Can well
Carbray
Carden
Carey
Carlile
Carney
Carpenter
Carr
R r. 135, 144,
439
— 361, 365, 367,
598, 710, 949
— 151, 434, 794,
955, 971
•— 249,285
— 636
— 722
— ....116, 151, 407
— 432
978
R y 847
— 624, 1020
— 341
— 429,843
— 847
— 13,29,271,393,
421, 771
— 6, 843
— 149
— 517
— 354,406
— 862,873
R y 269
— 149,153
— 344
— 735
— 101, 126, 241,
373
V. R 721, 984, 992,
995, 1022
— 199, 1051
— 164
— 904
— 221
-- lU
— 975,977
— 520
— 431
141, 389, 395, 651,
783, .869, 873,
951, 952, 9CS,
990, 1026
|%'» -
XXXIV
TAIILE OF OASES CITED.
Oarrell R y.
OarroU —
Curler
Case —
Casey —
Caspar —
Castro
Casn-ell
Catbenill —
Cattley v. Loundes
PAOB
.. 340
V. R
Rv.
313, 892
363,892
192
231
445
738
311
206, 854
960
Caudwell R v 981
Chadwick — ..17,25,434,466
Chalking — 359
Chalkley — 598
Chamaillard — 824,986
Cliambera — 621
Chandler — 171
Chanter V. Greame 610
Chapman R v. 123, 400, 609, 776,
Chnpplo — 19
Charest — 383
Charlesworth — ....793,798,829
Charlewood — 292
Charnock's Case — 811
140
117
....128,383, 858
256
145
570
269
514
420
Chasson — •
Chatbiirn —
Cheeseraan —
C herry —
Child's Case
Child R V.
Cbiser's Case
Chisholm R v.
Chouinaid —
Chowne V. Baylis 1074
Christian R v 416
Christopher — 266
Chute — 207
Clark — 765,967
Clarke — ....199,250,299
355, 368
Clay — 293
Clayburn — 359
Clayton — 15, 671
Cleave V. Jones — 924
Clegg — 287
Clements — 897
PAOB
Clifford Rv 6
Close — 478
CIoss — 634
Cliideray — 8fi8
Cockburn — 191, 206
Cockcroft — 201
Oodd V. Cabe 186,669
Coggins R V 451
Coggs V. Bernard, 284
Cohen
Cole
Coles
Coley
Colley
Oillicott
Collins
Colmer
Combe's Case
Comer
R T 254, 859
— 703
— 907
— 392
— 563
— 499
— 317,466, 857,858
— 222
466
R V 354
Commonwealth v. Magee 848
Cummou wealth v. Yerker 42 4
Coney R v 12
Conuell — ...531, 539, 793,
794,795,861,864
Connolly — ..,.181,205,208
Connor — 502,872
Connol ley's Case 546
Considine R v 831
Coogan's Case 4C3, £12
Cook R V 223
Cooke — ....398, 482, 483
484, 835, 928
Cooke's Case — 926
Cooke V. Stratford 927, 928
Cooper R v. .14, 15, 172.416,
427
Coote — 904, 906, 909, 986
Copelaud — 433
Corconm — 40,968
Cordy — 449
Corey — 440
Cornellier — 039
Cornwall v. R 218,936
Corporation of London R v 958
Corwin, Ex parte 707
TABLE OF CASES CITED.
XXXV
Cory R
Ooslett's Case -
Oosser R
Ooster V. Meraet
R V
Cotton
Coulson
Court
Oowcll
Cox
Cr.tb _
Crack nell —
Craddock —
Cramp —
Craw _
Crawford —
Crawshiiwr
Creamer
Creiiso V. Barrett
Cregan R v.
Cresswell —
Crick _
Criglitoa ~
Crishatn —
Crofts —
Cronan —
Cronia
Cronraire —
Crook —
Crooke —
Cropper v. Hortoa
Crosby R v.
Crossley —
Croteau —
Crow's Ouse —
Crowther —
Crump —
Crumptoa —
Cr '9
Cuddy —
Cullen -_
Cullum —
Cundy v.Lecocq —
Cunningbam il v.
Curran —
— 11
PAOR
269
260
289,420
1013
108
749
180
448
....160, 1«1, 449
1028
427
620
447, 448
'J20
10
175
853
78
997
880
78
134
...389, 756, 764
12, 13
766
880
568,940
417
134
476
671
435
433
1045
385
476
■ 292
872
• 151, 873, 875
12, 114
520
393
213
.162, 521, 980
668
Curgerwen
Currie
Curry
Curvan
Dade
Dadaoa
Dale
Danger
Danu
Dant
Daoust
Darmely
Dart
David
Davies
R V.
PAOB
8-i
47
615, 519
122.069
8
673
..154, 426,434
. 298, 435, 441
797
130
967, 987
443
155
402
.249, 285, 821
Davies v. Pierce
Davis,
450, 948
...993, 998, 1022
R V 8, i3ft, 180,
337, 346, 347.
352, 360, 428
449, 450, 841,
891, 1026,1028
Davis V. Russell 674
Davison R v. ..8c0, 938, 1023
— 192
— 290
— 783
— 913
— 267
— 285, 383
— 473
— 660
— 199
— 897,926
— 252,450
— 264
— ....951, 953, 968
— 774
V- R 637, 978
R y 151
— 250,282
— ... 449
590
Day
Daynes
Deacon
Dear v. Knight
Deasy
Deaves
De Banks
De Berenger
Debruiei
Dee
Deeley
Deer
Deering
Deery
D'Eon
Defoy
Delaworth
Denmour
Densley
Derbyshire
Derecourtv. Corbishley ^69
XXXVl
TABLE OF OASES CITED.
PAOR
Derrick Rt 828
De Riitzen t. Fnrr 9!»H
Despatie, fix pnrte 73
])e Witt R V .lOl
Diclten — 206
Dilmore — 003
Dilworth — 873
Dingmnn — 870
Diprose — 394,-107
Dixon — ...105,206,378,
391,635
DobbB — 34S
Dodson — 582,610
Doniilly _ 322
Donellj — 18
Donniiran's Case 662
Doody R V 116
Dougall — ...232, 775, 824,
850, 978, 981
Doiignll V. R 977
Douglas R r 839
Dovey v. flobson 948
Dmey — 427
Dewing V. Cassel 068
Downey Rv 785
Downie — 637
Downing — 13,295, 721
Dnige — 892
Draper — 151,873
Dring — 448
Drury — 794, 797, 976, 988
Dudley — 104
Dufly — 777
Duffin — 148,160
Dugal — 126, 137
Duncan — 981, 982
Dungey — 203, 861, 880
Dunlop V. R 974
Dunn R V. ...211,450, 478,
698, 891, 1056
Dunning — 726
Durocher — 439
Duval V. R 851,975, 977
Dwyer R v 84
Dyer — 8,448
Dyson — 10, 116, 965
PAni)
Eaglo R r 120
Eagleton — 421, 634
Karl of SomorjJt 14
Knrdloy — 188
Edgell — 56.3,607
Edwards — ...136,615,021.
829, 915, 1000
Egginton — 360, 721
Eggiutoa'a case — 1026
Elliott Rv 477
Ellis — 81,331,870
882, 1002, 1017
EIrington — 187
Else — 8,546
Elsemore v. St. Brinvols 662
England Rv 562
English — 437
E no, Ex parte — 487
Enoch R V 106
Epps — 616
Erisex — 611
Etherington — 374
Evans — 350,420,520
Ewer V. Ambrose 914
Ewing R V 424
Faderman R v 967.973
Falkingham — 173
Falkner — 724
Fallon — 21
Fallows — 329
Fanning — 79
Farre's Case — 262
Farrell'sCase — 257
Parrell R v 319,905
Farrington's Case 564
Farrow R v 219
Faulkner — 602,005,609,724
Fauntleroy — 511
Featherstone — 250
Feithenheimer — 422
Fenton — 125
Feore — 818,987
Ferens v. O'Brien 259
Ferguson R v. ...134, 277, 452
718, 720, 948
TABLE OP OASES CITED.
XXXVll
FldlPf
Field
Finnejr
Firth
Fisher
Fitch
Fitzgerald
Fliinagan
Flannagnn
Fliitmaii
Flattery
Fletcher
Flint
Flowera
Flyna
Folkes
Fontaine
Forbes
Ford
Foreman
Forsyth
Foster
Foiilkes
Fowler
Fox
Fox V. Gaunt
Frances
Francis
Frankland
Franklin
Franks
Fraser
Fray
Freeman
Freeth
French
Fret well
Frost
Fry
Fuidge
FuUagar
FuUarton
Fuller's Case
PAOK
Rr 677
— 499
— 137
— 257, 8H0
— ..91,92,120,670
— 261,620
— 612
— 395
— 338, 776
— 252
— 199
— ..199, 416, 662,
1051
— 42G
— 270,388
— 163, 785
— 13
— 82
— 185, 483
— Ill
— 940
— 747
— ...432, 552, 577,
— 392
— ....984,988,995
— 765, 944, 974
....667, 669, 676
R V 240
— ....199, 438, 478
— 736
— 125
— 545
— 981,990
— 125
— 736
— 427
— 521
— 161
— ...742, 809, 847
935
— 424, 749
— 770
— 416
— 934
— 336,337
I'AOB
Furnoanx R r :i88
Furnival — ;i49
Gahy R ▼ 734
(ladbiiry — ,. 707
Galo — 303
Gallagher — 12,897
Gallears — ... 200
Ganes — 809,872
Garbett — 901
Gardner — 420, 014, 019,
620
Garland — ...351, 760,970
Garner — 108
Garrett -- ...249, 285, 435,
438, 531
Gascolgne — 324
GateFulford — 070
Gautlireaux's Bail 1045
Gaylor JR v 10,118
Guzard — 51
Geach — ...468, 484, 813,
822
Geering — 108
George — 222
Gerrans — 905
Gerrish — 438,537
Gibbons — 83,338,347
Gibson — .44,853,972,980
Gilbert — 243,300
Gilchrist — 300,055
Giles — 6, 425,481,504
Gill — 397, 620
Gillis — 835
Gillow — 160
Gilmore — 179,797
Gilson — 601
Giorgetti — 809
Girdwood — 624
Gisson — 202
Glass — ....401, 850, 971
Glover — 395
Glyde — 267
Gnosil — 322,326
Goadby — gSO
^-1
XXXVUl
TABLE OF CASES CITED.
Goate
Goddard
Goff
Gogerly
Golde
Goldsmith
Goldthorpe
Gomm
Gooch
Goodhall
Rv.
Goode —
Gooden —
Goodenough —
Goodfollow —
Gooding —
Goodmaa —
Goodwin —
Gorbutt —
Gordon —
Goss —
Gough —
Gould —
Gould V. Oliver
Graham Rt,
Grainger —
Granger —
Grand Junction Rj. Co. 653
Grant — 735
Gravel — 725
Graves v. Short — 1009, 1012
Gray R v 13, 172, 781,
950
Gray v. R 984,995
Great Western R T 653
PAGE
476
140
421
7
416
...424, 447.950)
951, 959, 3027
222,866
416
306
...218, 220, 424,
857
964
521, 5U3
396
905
926
571
518, 765
272,386,423
14, 110, 135
432
599
...372, 487, 829
983
402
777
55
Gregory
Green
Greenh ugh
Greenwood
Gi'ey's Case
— 28,862
— 131,213,797,798
— 435
— 15,545,568,871
— 100
Griffin V. Coleman 609
Griffin R v 78, 128
Griffith V. Taylor 673
Grimes R v 380
Grimwade
Grove
Grover
Gruncell
Guay
Guelder
Guernsey
PAGE
, 624
Rt
— 399,885
— 553
— ....255, 269, 449
— 986
— 399
— 234
Gugy, Ex parte— 231
Gumble Rv 273,293,939
Gurford V. Bailey 928
Gurney — 839
Guthrie — 191, 206
Guttridge — '...776, 870, 882
Hadfield Rv 595
Hagan — 111,331
Haigh — 281
Hailes V. Marks — 674
P. V 344
— ....263,344,390
392, 393
— 337
— 866
— 898
— ....277,317,372
373, 614
V. R 433,949
Hampton's Case— 732, 733
Hancock Rv 360
Handley — ....106, 137, 269
Hannon — 509
Hanway v. Boultbee 668
Haines
Hall
Hallard
Halton
Hambly
Hamilton
Hamilton
Hapgood
Harding
Hardy
Hare
Hargreaves
Ha.ley
Harling
Harman
Harm wood
Harper
Harris
R V 202, 860, 861
— 258
— 595
— 726
— 771
— 6,148,893
— 997
— 326
— 863
— 479,517
— 47, 73, 141,
150, 337, ;^98,
609, 538, 570,
619, 699, 711
TABLE OF Cases cited.
XXXIX
Rv.
PAGE
..250, 252
— 478
— 841
— 389
— 51, 99, 238, 246,
292, 554
— 449
— ....249, 281, 285
^™ ••••••■ ■••■ol. o2
— 521
— 5&8
— 515
— 479
— 10,396
— 385
— 105
— 120
— 598
— 243
— 439
— 397
— 771, 785
— 297,300
— 83
542, 730
Harrison
Hart
Hartel
Hartley
Harvey
flaslam
Hassall
Haswell
Hathaway
Haughtoa
Hawkes
Hawkeswood
Hawkins
Hawtin
Haynes
Hayward
Haywood
Hazel I
Hazel ton
Headge
Heane
Heath
Heaton
Hedges
Hegarty v. Sliine ' iqq
Hemmings R v.
Hen eh —
Henderson —
Hennah —
Hennessey —
Hensler —
Henshaw —
Henwood —
Hermann —
Heseltine —
Hevey —
Hewgill —
Hewins —
Heymann
Heywood
Hibbert
Hickson
Higgins
Higgs
263, 320
— 244
— 288, 433, 796
— 168
— 661,662
— 421,429
— 425
— 889, 948
— 547
— 569,570
— 474
— 434
— 928
V. R 945,951
Rr. 717,751,889,948
— 213,637
— ....232, 917,940
- 47, 474, 487
~ 341
PAGE
R V 363, 434, 447
468, "483, 625
— 221
— ....275, 448, 754i
765, 969
Hinchcliffe's Case 145
Hill
Rillman
Hilton
Hincka
Hoare
Hobsoa
Hodges
Hodgson
Ho
gan
Hogg V. Ward
R V 971
— 249,285
— 448
— ....307, 311, 965
— ...10, 200, 201,
389, 469, 470, 475, 503
171, 172
Hoggins
^ol brook
Holchester
Holden
Holland
Hollingbury
Hollis
Holloway
Holloway
Holman
Holmes
Holroyd
Holt
Hood
Hoodlesa
Hook
Hopley
Horan
Horner
Horsay
Horseman
Horton
Howard
flowarth
Howell
Howie
Howley
Hoye V. Bush
Hubbard
.674, 675
Rv 389,397
.— 231
— ... 842
— ....476, 504, 699
— 87
— 855
— ...213, 220, 276
— 234,313,457,968
V. R 944
R V 718
— ...176, 201, 207,
439, 745
— 179
— 435
— 122
— 1045
— 51
— 128
— 961
— 321
— 103
— 453
— 82
V. R 71, 949,951
R V. ...111,430,665,
608, 673
— 8,38,573
— 515,519
— 520
124
Ry 140
jiJijtiJS^ ' gi g a*A I !--lal!-Jil,'l ' J^t^!<lj>JBJM«» '» ! l !R ' l«l.'
I
Xl
TABLE OF CASES CITED.
PAGR
Huddell Rv 788
Hudson — 443
Hughes . — .17,23,45, 129,
347j 393, 426, 445, 448, 900
HugiU — 378
Hungerford — 354
Hunt — ...151, 157, 394,
434, 665, 669, 699
Hunter — 517, 623
Huntley — 446
Hurse — 545
Hutchinson — 130, 350
lUidge R V 520
Ion — ...4S0, 481, 500,
502,545
Isaacs — 221
Israel — 789
Jackson Rv. ...199,233,286,
375, 399, 426, 615, 897, 927, 936
Jacob — 77
Jacobs — 67, 245, 261
James — ...427, 435, 476
658, 671, 782, 939
Jarrald — ....350, 353, 368
370, 710
Jarvis — 19, 339
Jeans — 598
Jenkins -— 340, 341
Jennings — ....382, 848, 894
Jennison — ....424,433,434
Jenson — 389
Jepson — 625
Jervis — 445
Jerrett — 897
Jessop — 10, 104, 116)
426
John ~ 204, 622
Johnson — 8, 214, 215, 345,
.355,365, 721,858, 1026
Johnson's Case 810
Johnston R v. ...108, 191, 206,
424
Joliffe, Ex parte 671
Jones & Palmer's Case 463
PARE
Jones R v 82, 131, 137,
238, 269, 270, 306,
339, 399,427, 434,
563, 585, 624, 636,
652, 715, 720, 721,
790, 866, 889, 891,
926, 959
Jones V. R 831,978
Jordan's Case — 336
Joyce R V 519, 542, 730
Judah — 439
Jus ices. The — 961
Kain — 621,837
Kay — 518,522
Kaylor 208
Kealey — 732
Keite — 102D
Keith — 509
Keena — 388
Kelleher — 439, 1027
Kelly — ...... 7, 8
Kelly V. The Midland Great West-
ern Railway of Ireland Co 675
Kelly V. R 517,977
Kemp V. Neville— 670
Kendall R v 275
Kenney — 252
Kenrick — 432
Kerr — ...266, 712, 318,
956, 972, 988
Kerrv. Leeman — 957
Kerrigan — 437
Kessel — 121
Kew — 130
Key — 793,809
Keyn — 651,601
Killiam — ...432, 433, 457
Kimber — 1026
Kirabiey — 502
King —8,274,400,400,636
King V. Poe — 669
Kingston R v 721, 722
Kinloch's Case —778, 788, 831,1005
Kinnear Rv 515,828
Kippa — 214
TABLE OF CASES CITED.
xli
Kirkimm
Kirkwood
Kitson
Knewland
Knight
Knnwlden
Konigs, in re
PAOB
R V 121, 338
— 8
— 564
— 323, 955
— ....268,793,945
V. R 770
605
Labadie
Laboucliere
Lackic
Lacombe
Lalanne
Laliberte
Laliement
Lambert
Lam6re
R.
V.
568
232
900
820
971
... 201,980
952
399
... 848,894
Lamirande, Ex parte 487
Langhurst
Langmead
LangtoD
Lapier's Case
Laprise
Lara
Larkin
Latimer
Laurent
Laurier
Lavey
Lawes
Lawless
Lawrence
Rv
R V.
V. R
R V.
775
275,450
439
321
68
633
935, 948, 970
164, 605, 609
976
231
540
355,368
147
344, 352, 356
Laws V. KItringham , 609
Laskie R v
Lea —
Leach —
L^ar —
Leblanc —
LeDante —
Ledbetter —
Ledbitter —
Leddington —
Ledger —
Ledwith v. Catchpole 666
i^ee R V. ...102,404, 432,
163
801,803
395
268
639
162
903
459
17
129
Leech
Lees
Leete v. Hart
Lefroy
Leigh
Lemott's Case
Lennard
Leonard
Levasseur
Leveque
Levine
Levinger
Lewis
Ley man v
Light
Lince
Lindsay v. Cundy
Ling
Lister
Lister^v
Lithgo
Little
Littlechild
Lloyd
Lock
Lockett
Loom
Loose
Lopez
Lord Mayor
Lord Sanchar
Loveil
Lovett
Lowrie
Low's Case
Loyd
Luck
Lumley
Lynch
Lyon
Lyons
PAGE
533, 903, 916
R V 652
— 432
674
Rv 671
— 380
262
Kv 552
— 375,785
— 73
— 73
— 637
V. R ... 984, 985, 995
Rv. ...149,343,482
559, 581,637
650, 661, 1029
Latiraei 1076
R V 669
— 437
960
R V 946
— 398
Ferryman 675
R V 359
202,914
. 725
44,623
.... 68,192,206
9
926
286
650
232,768
18
. 261,376,389
839
300
834
202
10
80
. 92, 120, 657,
946
479,511
336,569
9 ""
'.1 r
Mt .»smrmirr
xlii
TABLE OF CASES CITED.
. >, i
I* ^
PAGE
Macauley R. v 321
Macknlly's Case 12
Mackerell R v. 577
Macklin — 959
Maddock's Case 522
Madge R v 659
Madox — 380
Maguiro — ....231,806,823,
900
Maher — 171
Mailloiix — 40
Malonej — 116
Mankletow — 212
Manners — 8,546
Manning — 20, 567, 638
Mansel'sCase 1005
Mansell v. R 819,944
Mansfield R t 4^0
March — 565
Marcus — 472, 729
Margetts — 337
Marks — ... 273,734,937
Markuss — 135
Marriott — 137
Marriott doe d. v. Edwards ... 929
Marsden R v 162
Marsh — 430,834, 835, 944,
Marshall — ... 390,392,478
Martin — 44, 68, 87, 103
125, 126, 163,'
191, 201, 206,
309,337,426,
479, 547, 584,
764, 832, 893,
949, 952, 968, 985
Martin V. Shoppee 190
Mason R v. ... 93, 305, 321,
424, 615, 784, 786,
973, 978, 1027
Masters — 396,845
Mathews — ' 16
Matthews — ...289, 586, 588,
690
Matthews v. Biddulph 669
Mawbey R v 1004, 1014
PAOB
MaxAvell Rv 776
May — 224, 390
Mayers — ... 192, 200, 861
Mayhew V. Locke 671
Mayle Rv 390
Maynard — 91, 92, 703
Mazagora — 476
Mazeau — 510
Meade's Case 146
Meagle R v 301
Mcakin — 429
Menny — 853
Meere's Case 404
Mehegan R v 191
Mellish — 385,389
Mellor — ...809, 816, 968,
972, 985, 986, 995
Meredith — 191,206
Merriman v. Tue Hundred of
Chippenham 325
Metcalfe R v 297
Metcalfe t. Deane 1009, 1012
Michael R v 6, 107,149
Middleton — 234,265
Miller — ...214,393,867
Millhouse — 845
Mi'loy — 904
Mills — 426,429
MinterHart — 208
Mister — 156
M itchell — 333, 516, 652, 883
Moah — 399
Mockford — 270
Moffatt — 479
Moffel, Ex parte 609
Mogg R V 598
Moland — 15
Mole — 266,269
Monoghaa — 281
Mondelet — 213
Moody — 407,520
.Mooland — 437
Moore — 9, 266, 321,652
Mopspy — 515,517
Morby — 137
TABLE OF CASES CITED.
xliii
Morfit
Morgan
Morris
Rv.
Morris v. Wise —
Morrison R y.
Morton —
Moss —
Most —
Mount —
Mountford —
Mucklow —
Muiljolland —
Muller —
Munday —
Murphy —
PAGE
269
140
..187,254, 258)
302, 798
312,668
.. 300,519,787
480,511
Rv.
V. R.
Rv.
Murphy v. Eills
Murray
Murrow
Musset —
Mutters —
Mycock —
MacDaniel —
MacGrath —
M' A they —
McCarthy —
McConohy —
McCorkill _
McDonald -
McEneaney —
McFee —
McGinae- —
McGrath, Ex parte
McGrath R v. ,
McGregor —
McHolme —
Mcintosh —
Mclntyro —
McKale —
McKeever —
McKenzie —
443
142
978
158
263
881
915
306
. 11, 151, 185.
377, 512, 722,
829, 982, 984
666
338,396
975
150, 175
611
214
106
323
449
774
725
521
■•281, 389, 487,
582, 900
707
5'7
546
978
573
388
665
479, 619
87, 961
244
579
74
McKenzie V. Gibson 606
McLeod
R V. ... 134, 135, 707
— 8
— 238
— 39
— 487
— ... 365, 372, f55
McPherson V. Daniels 99
McQuarrie Rv 439
78,84
McJiIakin
McNamee
McNaugliton
McNevin
McPherson
McQuiggan —
Napper
Nash
Nasmith
Nattrass
Naylor
Neale
Negus
Nelson
Nettleton
Neville
Newboult
Newill
Newman
Newton
Nicholas
Nicholl
Nicholls
Nicholson
Nigotti \
Nisbelt
Noake
Noakes
Noon
Norris
North
Norton
Notman
Noit
Nugent
Nunn
R V. ...371, 378, 710
— 472,475
— 171
— 570
-- 433
— 862. 863
— 392
— 906
— 393
— 936
— 564
— 578, 601
— 230, 907
— 78, 185
— 355, 368
— 192
— ... 137,331,450,
863, 1016
— 247,329
Oolville 1054
Rv 516
— 387
— 1S5
— 93,99
— 306,587
— 247
— 785
— 974
— 4
— • 59
1045
Nutbrowne's Case 333
Gates
O'Brien
Rv.
432
.583, 797
■%
Ft l it
■it
w —
m
B-'
M
is! .1
(.■
Ht- '-
^*H
H; > -'
i^ ^
.'■
I Ml
xliv
O'Brien, Ex pnrte
TABLE OF CASES CITED.
PAGE
232
...722, 725, '(77
140, 443
..450, 482, 891
499
".. 778
460
". 978
369, 370
997
.".'.". 214
164, 189,935,945
197,331
" 627
,.."..777, 939, 945
637
806,972
...39, 724, 1C53
776
140
785
969
7, 373, 776, 92G
598
284
590, 1016
47
R.V 624
— 500, 502, 545,
546
_ 346
_ 461
_ 6,481,504
Pantoa v. Williams 674
R V 207,749, 786
_ 776
O'Connrll
V R.
O'Connor
R V.
Oddy
—
Odgen
■"^
Odgers
— •
O'Donneli
—
O'Kane, Ex parte
Oldham
Rv.
Oldroyd
—
Olifier
—
Oliver
—
O'Neill
—
O'Neill V. Lc
ngmfii
Orchard
R V.
Orraan
— •
O'Rourke
—
Orton
—
Osbi>rn
—
Osmand
—
Ouellette
—
Overton
—
Owen
—
Owens
—
Oxenliam
—
Oxfordsliire
—
Oxley
—
Paddle
Page
Pfiine
Palliser
Palmer
Paquet
Parish
Parker
Parke's Case —
Parkin R- '^
Parkins —
Parkinson —
Parks and Brown's Case
Parnell R ^
Parry —
Partridge —
70, SOU, 427
246
852
842
931
... -163
... 637
... 801
... 270
PAGE.
Pascoe Rv 460
PaHsey — 9
Patent Eureka and : Sanitary
Manure Co 698
Patrick R v 736
Pattcsoa — ... 231, 823, 972
Patience — 123
Paxtoa — ... 487, 810, 967
Payne — 63, 725, 897, 898
p.. : — 241, 292
. .;• — ... 241, 315,362
188
241, 320
396, 473, 636
45
330,9.55
...56, 786, 986
609
626,627
Pv.' —
Pea. —
Peck —
Pedley —
Pelfryman —
Pelletier —
Pemblitoa —
Perham, la re —
Perkins Rv H,448
Perkins V. Bradley 1074
Perrott R v 439
Perry — ....222, 301, 866
Perry v. Watts
Petrie
Peters
Phelps
Philips
Pbillipa
Philp
Phipoe
Picl
Pickford
Pickup
Pierce
Pike
Pinkney
Pitman
Pitts
Plummer
Pool
Poole
Pooley
Pope
928
R V , 372
_ 266
— ...669,870,871,
875, 882
_ 457
— ...263, 292, 482,
830, 881, 882
_ 560,601
_ 298,621
_ 224
_ 614,622
_ 442
— 84, 85, 654, 958
_ 3S0
_ 633
_ 291
_ 105
_ 10,11
_ 870
_ 313,457
_ 301
_ 269
II
SHI
K
TABLE OF CASES CITED.
xlv
Portugal
Potter
Foul ton
Powell
Fowler
Powiier
Pratt
Preston
Price
Pi-ice V. iSeeley
Prince
Pritchard
Privett
Proud
Piovost
Puddick
Puddifoot
Pulbroke
Piilham
Purchase
Pjm
PAGE
R V 409
— 363
— 106
— 302,917
— 148
— ...477, 525, 526
— 243,432
— 269
— 546,579
669
R V 214, 245,416
— ....734,789,935,
938
— 269
— 393
— ...331, 334, 806,
971
— ....204, 841, 842
— 926
— 520
— 18
— 387, 778
— 87
.915, 916,
787
Queen's Case
Qulnn R 7. ..
Radbourne R. v 903
Radcliffe — 206,437
Radford — 431
RafiFerty v. The People m
R 7.
V. R
R V.
Ragg
Ramsay
Ramsay
Ransford
Ransom —
Ratcliffe —
Rawlings —
Rawlins —
Rawlius V. Ellis
Rea R v.
Read —
Read t. Ocker
Reane R v.
Redman —
432
232
976
862
299
.790, 810
339
292
671
79
.191,205
190
322
1 621
PAOEi
Reece Rv 306
Reed — 74, 239,266, 396,
619
Reeves — 285
Regnier — 735
Reid — 871,883
Reynett — 931
Rice — 306
Richards — 29, 36,619, 620,
710
Richardson — 184, 449, 900,
972
Richmond — 288, 553
Rider — 543
Ridgely — E5j
Ridgway — 432
Riel — ; 140
R'gby — 487
Riley — ,...201, 203, 247
Rinaldi — 509
Ritson — 467, 5U
Roadley — 205, 207
Roberts — 4^, 449, 480,
553, 962
Roberts al. Chambers Case 343
Roberts V. Orchard 668
Robertson Rv 616
Robins — ...201, 213, 321
Robinson — 238, 315, 344,
362, 440, 639,
548,. 614. 620
Robson — 239, 250, 254,
282
Roche — 793
Rochon V. Leduc 1074
Roden R v 109
Rodgers — 340
Roe _ 259
Roebuck _ 421, 426, 432,
858
Rogers — 12, 384, 448,
519, 537, 554,
603, 845
Rogier _ 443
R«lfe — 1069
Rose Milne — 809
Rosenberg — 262
fr
MM
xlvi
TABLE OF CASES CITED.
PAGE
Rv 192
— .44,50,971,980
— 374,832
— 95
— 627,981
— 96,505
— 847
— 151, 162
— 633,637
— 650
— ...407, 423, 885
386
Rv 203, 204
— 179
— 10,17,344,352,
659, 707, 835
V. R 721
Rv. 148, 152, 159,
782, 952, 1029
— ...191,206,795,
860, 861
Rosiaski
R083
Roaspf
Rothwell
Rowlands
Rowley
Rowlon
Roxburg
Roy
Ruck
Rudge
Riidge's Case
Rudltind
Rugg
Russell
Ryalls
Ryaa
Ryland
Riymes — 934
Sainsbury V. Matthews ;., 929
Balmoa R v 133
Salop — 1016
S«1W — 103,799
Sample — 241
Sanchar, Lord — is
Sanders
Sansome
Satchwell
Sattler
Saunders
— 363
— 1026
— 579
— 650
— 15, 74, 136, 175,
192,873
baunders, In re 1074
Savage Rv 78, 79, 775
— 981, 999
Seaife
Scalbert
Schleter
Scott, Ex parte
Scott
Scott
Scully
Sellars
Sellis
Selton
Selway
Rv.
V. R
Rv.
829
790
667
..171, 295,734,
793
296
146
232
106
90
329
Spmple R y
Sotiecal
Senior
Serva
Sessinghurst House Case ...... 10
R V
PAGE
954
93(i, 937
107, 136
661
Seward
Shannon
Sharp
Sharpe
Sliaw
Sheen
Shepherd
Sheppard
Sherwood
Sherwood's Case
Rv.
Shickle
Shimmin
Shott
Shrimpton
Shukard
Shuriner
Shultleworth
Sill
Silvester R v.
Simmonds —
Simon's Case
Simons R y,
Simpson
Sinclair
Sinclair's Case
Skeen
Skeet
Slowly
Small _
Smith, In re
Smith R y.
636
— 197
— 651
— 529, 654
— 105
— 794,919
— 307
— 243, 476, 619,
573, (,74
432
96
259
— 845
— 206,863,938
— 767
— 481
— 902
— 60, 809
V. R 728, 782, 949
981
78
325
322
134, 316, 702
196
155
302
10
243
242
487
106, 117, 129,
136, 140, 144,
155, 171, 300,
336, 337, 339,
342, 346, 347,
364, 389, o93,
396, 405, 418,
450,515,519,
520, GOl, 614,
622, G57, 796,
853, 869, 872,
899, 903, 959,
969, 970, 972,
995
TABIE OP OASES OITED.
xlvii
PAOli!
Smith ▼. Brandram 928
Smith T. Knoweldon 929
R V.
Smythies
Hnell
Snelling
Snowley
Scares
Somerton
Soucie
Spanner
Sparrow
Spears
Speed
Spelman
Spencer
Spencer's Case
Spiller R v
Spilling —
Spriggs —
Sproule, In re
658
— 866
— 619
— 385
— 8, 604
— 388
— 665,906
— 347,348
— 189
— 239
— 431
V. R 946, 976
Rr. ...135,393,427,
579, 765
325
134
134
343
..707, 971, 977,
978
Sprungli R t. ...
Squire — ...
Stainer — ...
St. Amour — ...
Staacliffe — ....
Standley — ....
Stansfield — ...
Stanton —
Steel — ....
Steels — ....
Stephens — ....
Stephens T. Meyers 19t
652
389
395
771
.959, 962
....9, 258
420, 946
. 187, 203
.228, 790
425
847
Sterling
Sternberg
Sterne
Stevens
Steventon
Steward
Stewart
Rv.
612
— 637
— 12
— 150
— 710
— 321
— ....6, 7, 504, 521
905, 1045
Stewart's Case 799
St. George R y 163, 839, 871,
882
Stiles Rf
Stitt _
St. John Long —
St. Laurent v. R
Stock R y 241, 292, 338
Stoddard — 839
Stone — 426, 619
Stonehouge v. Elliott 674
PAQB
.. 926
.. 221
... 133
4. 353
Stonnel,
Stopford
Story
Stowe
Strahan
Strange
Stroulger
Stubbs
Studd
Sturge
Sullens
Summers
Suprani
Suter
Sutton
Swalwell
Swatkins
Swindall
Sykes
Rv 765
— 167, 160
— 427
— 139
— 302
— 151. 719
— 946
— 898, 970
— 969
— 936
— 398
— 766
— 751,891
— 432
— 293, 552
— 1045
— 579,841
— ...9, 1.1, 129, 130
— 1022
Rv.
Tacey
Taffs —
Taft _
Tancock —
Taplin —
Tasse —
Tatlock —
Tatlock V. Harris
TaylOf R v.
Taylor's Cage
Taylor v. Newman
Teague R V.
Teal —
576
394
478
....793, 795, 802
322
232
416
471, 475
12, 27, 118, 131,
164. 252, 372,
395, 478,519
671, 637, 775,
793, 845, 873
682
294
480
981
xlviii
TABLE OF CASES CITED.
PAOE
Tbayer v. R 637
Theal v R 139
The World R.t 232
Thoman — 608, 747
Thomaa — ...373, 620, 647,
893, 1066
Thompson — ...122,238,246,
261, 266, 316,
337, 3r)8, 371,
372, 426,898,
899, 905
Thomson — 348
Thorley — 385
Thorn — 618,620
Thortod — 888
Thorp — 398
Thurbom — 234, 266
Tierney — 661, 965
Timmins — 213
Timothy T. Simpson 668, 669
Tinckler's Case 997, 1016
Tlte, Rt 889
Titley — 221
Tivey — 560
Todd — 476, 483
Tolfree — 250
Tollett — 251
Tongue — 393
Tonkinson — 289
Topple — 401
Torpey — 255
Tower — 603,980
Towers — 126
Towle — 12,721
Townley — 269
Townley's Case 743,810
Townsend Rt 389,403
Townshend — 418
Tracy — 27
TrafiFord v. R 1020
Trainer Rv 132
Tranchant — 614
Trapshaw — 340
Trebilcock — ... 269, 863, 968
Treble — 997
Trehame — 744
FAOB
Tremblay Rr 703
Tremearne — 783
Trenfield — 478
TreTelli __ 847
Trevenner — 313
Trilloe _ loe
Tucker — 618,619
Tuckwell — 8
Tuffs — 729
Tulley T. Oorrie 168
Turner R r. 82, 83, 339, 391,
449, 540, 559;
578, 778, 792,
964, 1028
Turton — 964
Twist — 275
Tyers — 388
Tyler — 12,624
Tylney — 471,474,512
Tymms -- 936
Tyrie — 394, f 69
Upton Rt 181, 594
VanButchellRT 133
Vandercomb — ... 795, 864, 954
Varley — 638
Vaughan — 484
Vaux's Case 6, 802, 803
Verelet Rt 185
Vicary t. Farthing 1009
Vincent Rv 734,936
Virrier — 997
Yodden — - 852
Vonhoff — 806
Von Seberg — 652
Vyse — 299
Wade R t 264, 830
Wadge — 850
Wainwrighl — 844, 905
Waite -— 240
Wakeling — 432
Walker — ... 74, 129, 187,
268, 303, 390
632, 669, 873
TABLE OF CASES CITED.
xlix
Ttr „ PAGE
Walker v. Mayor of London ... 9J9
Walkley u^ 448
Wall _ 479
Wallace goi
Wallia _ ..!!.".......". 12
Walne _ 431
Walsby V. Auley !!!!!!""]!."! 626
WalBh R V 266, 297
Walstenholme — 399 400
Walter, Ex parte 73
Walter R v 707
Walters — 359
Walton — gi(j
Wandsworth — 931
Warburton — 637
Ward — ...164,619,625,
718, 798, 829, 866
Wardle — 831
Warner — 453
Warren — 662
Wurshaner — ..., 609, 949
Wason, Ex parte 768
Waters, Rv 62,779,954
Watkins — 866, 873
Watkinson — 951
Watson -- 426
Watson V. Bodell 670
Watts R. V 301,396
Wavell — 435, 631
Waverton — - 949
Webb — 87, 133, 313,
616, 78'i, 842, 897, 968
Webster — 70,206,407,
936
Wedge V. Berkley 674
Weeks Rv 654
Weir — 124
Welch — ...399, 480, 545,
698, 609
Welland — 73
Wellings — 904
Wells — 249, 284
Welman — 435
Welsh — 93
Weltoa — 934, 936
PA(1>
Wemyss v. Hopkins 187
Wenmouth Rv 346,362
West — ...269,300, 301,
424, 619, 577
Westbeer — 303, 855
Western — 937
Westley — 188, 792, 793,
937
Weston — 137, 845
Wostwood — 339, 360
Whalley — 832
Wheatly — ....633, 780, 782
Wheeldon — ....351, 352, 356
Wheeler — 350
Whelan — 812
Whelan v. R ...944, 974, 976
989
Whlley Rv 658
Whitaker v. Wisbey io74
White R V. ..10, 174, 239,
257, 395, 416,
450, 522, 830,
842, 847, 946
White V. Feasts 611
Whitehead Rv 135,1074
Whiteman — ...307, 53i, 608
Whitely — 121
Whittingham — ,.... 587
Wickham — 426, 434
Wickman — 427
Wiggs — 127
Wiley — .,..448, 478, 860
Wilkes — 976, 1053
Wilkins — I68
Wilkinson — 253
Wilkinson's Case 257
Wilkinson v. Dutton 187
Wilks' Case — 472
William Rv 239
Williams — 6, 153, 192,
199, 233, 248,
293, 400, 435,
488, 537, 608,
873, 905, 1053
WilliamBon — • 133,429
TABLE OF CASES CITED.
Willii
Willmott
Willot
Willuughbj
WillMhire
Wilaou
Winkworth
Winslow
Winsor
Winterbottom
Withal
Withers
WoUaston
Wood
Woodhall
Woodhead
Woodhurst
Woodward
ooler
PAGE
R r 235, 766
— 1063
— 436
— 619
— 84
— 219, 248, 338,
398, 447, 4(38,
478, 906, 950
— 323
— 108
— 798, 802, 829.
861, 807, 898
909, 977, 984,
089, 905, 1007,
1015,1016, 1022
— 616
— 364
— 122
— 68, 191, 203
— ....160,202,662
— .331,854,956
— 378
— 192,206
— 448, 658, 674,
578, 579, 680,
689, 710
— 1000
PAOB
Woolf Rv 828
Woolford — 446
Woolley — 426
Wooltner — m
Woolridge — 642
Worrald — 306
Wortley — 309
Wright doe d. v. Tatham 998
Wright R V. 106, 203, 204,
329, 381, 396,
732, 733, 873,
938
Wynn — 289
Wynne — 268
Rv 47
— 299
— 164, 189, 984,
985, 996
— 293
— 12,63,114,121
199, 426, 452,
761
Young's Case — 716
Young T. R — 721
Yarringlon
Yates
Ycadon
Yend
Young
Zulueta
Rv.
889
LIST OF ABBREVIATIONS.
A. k E. Adolphus and Ellis, Report!
And. Anderson's King's Bench Reports
B. k A. Bftrnewnll and Adolphus'
B. k Aid. Barnewall and Alderson'a
B. k 0. Barnewall and Creaswcll's
B. i P. Bosanquet and Puller's
B. k S. Best and Smith's
Bear. Beavan's Chancer/
Bing. Bingham's K. B.
Brod. k B. Broderip and Bingham's
Burr. Burrows'
(I
(I
(t
0. B. Common Bench «
0. k. P. Clark and Finelly's "
0. k K. Carrington and Kirwan's N. P. Reports
C. k M. Carrington and Marshman " "
C. k P. Carrington and Payne's " "
Ca. Temp. H. Cases tempore Hardwicke
Cald. Caldecott'a Reports
Camp. Campbell's Reports
Carr. Supp. Carrlngton's <''riminal Law
Chit. Chitty'a " "
C.L.J Canada Law Journal, Ont.
C. L. T. Canadian Law Times, Out.
C. M. k R. Crompton, Meeson k Loscoe's Reports
Co. Coke's Reports
C. P. D. Law Reports, Common Pleas Oivhioa
Cro. El. Croke's Reports, Elizabeth
Cro. Jac. Croke's Reports, James
C. S. C. Consolidated Statutes of Canada
C. S. L. 0. Consolidated Statutes of Lower Canada
C. S. U. 0. Consolidated Statutes of Upper Canada
D. & L. Dowlingaad Lowndes' Reports
D. & M. Darison and Merivale's "
D. & R. Dowlingand Ryland's "
D. 0. C. Deacon's Crown Cases
Dears. Dearsley's " "
Dears. & B. Dearsley and Bell's Crown Coses
'if
B-^
m
Den.
Doug.
Dy.
E. &B.
E. B. & E.
E. &E.
F. &F.
Fost.
G. &D.
G. &0.
Greenl. Rep.
H. &C.
fl. &N.
Han.
111.
Inst.
Ir. 0. L. R.
J. P.
L, &. 0.
L. C. J.
L. 0. L. J.
L. C. R.
Ld. Raym.
L.J.
L.N.
L. R. C. C.
L. R. C. P.
L. R. H. L.
L. R. P. 0.
L. R. Q. B.
L. T.
M. & G.
M. & .VI.
M. & Rob.
M. & S.
M. & W.
Man. L. R.
Marsh.
M. L. R. Q.
R.
LIST OF ABBREVUTIONS.
Denison's Crown Oases
Douglas Reports
Dyer's '<
Ellis and Blackburn's Reports
Ellis, Blackburn and Ellis' "
Ellis and Ellis' «
Fosiorand Finlason's "
Foster's (Jrown Cases
Gale and Davison's Reports
Geldert and Oxley's Nova Scotia Reports
Greenleafs Maine «
B.
Huristone and Coltman's "
Hurl stone and Norman's «
Hannay's New Brunswick "
Illinois State k
Coke's Institutes
Irish Common Law Reports
Justice of the Peace
Leigh and Cave-s Crown Cases
Lower Canada Jurist
Lower Canada Law Journal
Lower Canada Reports
Lord Raymond's "
Law Journal (England)
Legal News, P. Q.
Law Reports, Crown Cases Reserved
Law Reports, Common Pleas.
Law Reports, English and Irish Appeals
Law Reports, Privy Council
Law Reports, Queen's Bench
Law Times Reports
Manning and Granger's Reports
Moody and Malkin's "
Moody and Robinson's «
Maule and Selwyn's «
Meeson and Welsby's "
Manitoba Law Reports
Marshall's Reports.
Montreal Law Reports, Queen's Bench
LIST OF ABBREVIATIONS.
iiii
Mod.
Moo. 0.
0.
Modern Reports
Moody's Grown Cases
N. B. Rep. New Brunswick Reports
0. R. Ontario Reports
P. & B. Pugsley and Burbidge, New Brunswick Reports
Plow. Plowden's K. B. Report
P. R. (Ont.) Practice Reports, Ontario
Pugs. Pugaley's New Brunswick Reports
P. Wms. Peers Williams, K. B. Reports
Q. B. Queen's Bench "
Q. B. D. Law Reports, Queen's Bench division
Q. B. R. Dorion's Queen's Bench Report, Montreal
Q. L. R. Quebec Law Reports
R, & G. Russell & Gheslej's Nora Scotia Reports
R. & M. Ryan and Moody's Reports
R. «& M. G. G. R.Moody's Crown Gases
R & R. Russell and Ryan's Reports
Rep. Coke's Reports
R. L. Revue Legale, P. Q.
R. S. B. 0. Revised Statutes of British Columbia
R. S. N. B. Revised Statutes of New Brunswick
R. S. N. S. Revised Statutes of Nova Scotia
Russ. Russell on Crimea
Russ. & Gold. Russell and Gelderts Nova Scotia Reports
Salk. Salkeld's Reports
S. C. R. Supreme Court of Canada Reports
Show. Shower's Reports
St. Tr. State Trials
Str. Strange's Reports
%
Taun. Taunton's "
T. R. Term "
T. Raym. T. Raymond's "
Tyr. Tyrwhitt's «
U. 0. G. P. Upper Canada Common Pleas
U. C.Q. B. Upper Canada Queen's Bench
W. R. Weekly Reporter
Wils. Wilsoa'a K. B. Reports.
THE
CRIMINAL STATUTE LAW
OF THK
DOMINION OF CANADA.
CHAPTER 141.
AX ACT RESPECTING EXTRA-JUDICIAL OATHS.
TTER Majesty, by and with the advice and consent of th^ s .
-n and House of Con>n,ons of Canada, enacts arfo„ows:l"''
1. Every justice of the peace, or other person who administers or
causes or allows to be administered, or receives or caueeT or ! '
to be received, any oath, affidavit, or 8oIen,n rLmS T I '
any matter or thing whereof such justice ^ ott'p r^i Z ^of
and hable to a L not ^^^^fl^^^ :^:XZT2
any term not exceeding three months.-37 V., c. 37. . 1^2^12
or thing touching t^^Z:^r2ro'Z^^^^^^^ -"-
trial or punishment of any offence, or to anVoa affid' /'"'
affirmation required or authorized by'any lawTcanl, oT ! ,::
law of the Provmce wherein such oath, affidavit or affirmatL s
received or admmistered, or is to be used, or to any oatiraffidav' or
affirma .on which is required by the laws of any foreign oountrv 7
g.vevahd.ty to instruments in writing designed trbe'us^irLt
foreign countries respectively.-37 F., c. 37, ,. I, pJu ""'^
B
2
EXTRA-JUDICIAL OATHS.
3. Any judge, justice of the peace, public notary, or other
functionary authorized by law to administer an oath, may receive
theHolcmii declaration of any , -ion voluntarily making the same
before him, in the form in the schedule to this Act, in attestation of
the execution of any written deed or instrument, or allegations of fact,
or of any account rendered in writing. — 87 V,, c. 37, s. 1, part.
4. Any affidavit, affirmation or declaration required by any fire,
life or marine insurance company, authorized by law to do businf sg
in Canada, in regard to any loss of property or life ins^ured or assured
therein, may be taken before any comntissioner authorized to take
affidavits, or before any justice of tlie peace, or before any notary
public for any Province of Canada ; and any such officer is hereby
required to take such affidavit, affirmation or declaration.— 32-33 F.,
c. 23, s. 4.
SCHEDULE.
I, A. B., do solemnly declare that (state the fact or facts declared
to), and I make this solemn declaration conscientiously believing
the same to be true, and by virtue of the " Act respecting extra-
judicial oaths."
Sec. 1 is taken from sec. 13 of 5-6 W. 4, c. 62, of the
Imperial Statutes, the preamble of which 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 such proceed-
ing is illegal, for the suppression of such practice and
removing such doubts. Her Majesty, etc."
Sir William Blackstone, before this Statute, had said
(Vol. IV, p. 137) : " The law takes no notice of any per-
jury, but such as is committed in some Court of Justice,
having power to administer an oath ; or before some magis-
trate or proper officer, invested with a similar authority,
EXTRA-JUDICIAL OATHS. 3
in some proceedings 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 far any
magistrate is justifiable in taking a voluntary affidavit in
any extra-judicial matter, as is now too frequent upon every
petty occasion, since it is more than possible that by such
idle oaths, a man may frequently, in foro conscientic
incur the guilt, and, at the same time, evade the temporal
penalties of perjury."
"And Lord Kenyon, indeed, in different cases, has
expressed a doubt, whether a magistrate does not subject
himself to a criminal information for taking a voluntary
extra-judicial affidavit."— 3 Burn's Just, v Oath
Indictment.-The Jurors for Our Lady the Queen upon
their oath present, that J. S. on at being one
of the Justices of Our said Lady the Queen, assigned to
keep the peace in and for the said county (or district)
did unlawfully administer to and receive from a certain
person, to wit, one A. B., a certain oath, touching certain
matters and things, whereof the said J. S., at the time
and on the occasion aforesaid, had not any jurisdiction
or cognizance by any law in force at the time being
to wit, at the time of administering and receivincr the
said oath, or authorized, or required by any such" law
the same oath not being in any matter or thing touchinc^
the preservation of the peace, or the prosecution, trial o'r
pimishment of any offence not 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
(If to be used in another Province, add " or by any law of
the Province of wherein the said oath (or ajffidavit)
4
EXTRA-JUDICIAL OATHS.
I? '$:
I
was (or is) to be used ") ; nor 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
ajffidavit so as to show that it was not one of which the
Justice had jurisdiction or cognizance, and was not
within the exceptions) against the form of the Statute in
such case made and provided, and against the peace of
Our Lady the Queen, her crown and dismty.— A rchhold,
829.
A county magistrate complained to the bishop of the
diocese of the conduct of two of his clergy ; and to substan-
tiate his charge, he swore witnesses before himself, as
magistrate, to the truth of the facts : held, that the matter
before the bishop was not a judicial proceeding, and there-
fore that the magistrate had brought himself within the
Statute against voluntary and extra-judicial oaths, and that
he had unlawfully administered voluntary oaths, contrary
to the enactment of the Statute.— ii. v. Nott, Car. <& M.
288 ; 9 Cox, 301.
In the same case, on motion in arrest of judgment, it
was held, that an indictment under this Statute (5 and 6
Will. 4, c. 62, s. 13) is bad, if it does not so far set out
the deposition, that the Court may judge whether or not
It IS of the nature contemplated by the Statute, that the
deposition and the facts attending it should have been
distinctly stated, and the matter or writing relative to
which the defendant was said to have acted improperly
should have been stated to the Court in the indictment so
that the Court might have expressed an opinion n. aether
the defendant had jurisdiction, the question whether the
defendant had jurisdiction to administer the oath bein^one
EXTEA-JUDICIAL OATHS. 5
Of law and to be decided by the Court; but the majority
of the Court thought that it was not necessary to set out
the whole oath. Greaves nevertheless thinks it prudert
to set It out at full length, if practicable, in some counts.-
1 Russell, 193, note.
Upon the trial, to establish that the defendant is a
Justice of the Peace, or other person authorized to receive
oaths or affidavits, evidence of his acting as such will
pnmd facie, be sufficient.— ^rcA6oZtZ, 830.
And it is not necessary to show that he acted wilfully
m contravention of the Statute : the doing so, even inad-
vertently, IS punishable.— /ofer/i.
ACCESSORIES, AIDERS, ABETTORS, Etc.
The general definition of a principal in the first degree
is one who is the actor or actual perpetrator of the fact.
But it is not necessary that he should be actually present
when the offence is consummated ; for if one lay poison
purposely for another who takes it and is killed, he who
laid the poison, though absent when it was taken, is a
principal in the first degree. Vaux's case, 4 Hep. 44 b;
Fost. 349 ; M. v. Harley, 4 C. <& P. 369. So, it is not
necessary that the act should be perpetrated with his own
hands ; for if an oifence be committed through the medium
of an innocent agent, the employer, though absent when
the act is done, is answerable as a principal in the first
degree. See R. v. Giles, 1 Mood. 0. 0. 166; B. v.
Michael, 2 Mood. C. C.120; 2C.& P. 356; R. v. C^^/-
ford, 2C. & K. 202. Thus, if a child, under the age of
discretion, or any other instrument excused from the
responsibility of his actions by defect of understanding,
ignorance of the fact, or other cause, be incited to the
commission of murder or any' other crime, the inciter,
though absent when the fact was committed, is, ex neces-
sitate, liable for the act of his agent, and a principal in
the first degree, Fost. 349 j 1 Hawk. c. 31, s. 7; R. v.
Palmer, lIf.R.96', 2 Leach, 978 ; R. v. Butcher, Bell,
6; 28 Z. /. (M. C.J 14. But if the instrument be aware
of the consequences of his act, he is a principal in the first
degree, and the employer, if he be absent when the fact is
committed, is an accessory before the fact. R. v. Stewart,
R. & R. 363 ; R. v. Williams^ 1 Den. 39 ;ia& K. 589 ;'
I
ACCESSORIES, ETC. X
or, if he be present, as a principal in the second degree.
Fo8t. 349 ; unless the instrument mcur in the act merely
for the purpose of detecting and punishing the employer,
in which case he is considered as an innocent agent. —
M. V. Bannen, 2 Mood. C. 0. 309 ;ia S K. 295.
Principals in tJie second cZegrree.— Principals in the
second degree are those who are present, aiding and
abetting, at the commission of the fact.
Presence, in this sense, is either actual or constructive.
It is not necessary that the party should be actually present,
an ear or eye-witness of the transaction ; he is, in con-
struction of law, present, aiding and abetting, if, with
the intention of giving assistance, he be near enough to
afford it, should the occasion arise. Thus, if he be outside
the house, watching, to prevent surprise, or the like, whilst
his companions are in the house committing a felony, such
constructive presence is sufficient to make him a principal
in the second degree. Fast 347, 350. See R. v. Borth-
wick, 1 Dougl 207 ; I Leach, 66 ; 2 Hawk. c. 29, 88. 7, 3 ;
1 Ru88. 31 ; 1 Hale, 555 ; R. \. Gogerly, R. & R. 343 ;
R. V. Owen, 1 Mood. 0. C. 296. But he must be suffi-
ciently near to give assistance. R. v. Stewart, R. & R. 303 ;
and the mere circumstance of a party going towards a
place where a felony is to be committed, in order to assist
to carry off the property, and assisting in carrying it off, will
not make him a principal in the second degree, unless, at
the time of the felonious taking, he were within such a
distance as to be able to assist in it. R. v. Kelly, R. S R,
421; 1 Ru^s. 27. So, where two persons broke open a
warehouse, and stole thereout a quantity of butter, which
they carried along the street thirty yards, and then fetched
the prisoner, who, being apprised of the robbery, assisted
in carrying away the property, it was holden that he was
8
ACCESSORIES, ETC.
not a principal, but only an accessory. JR. v. Kirig R d- R
332. 3ee R. v. M'Makin, Id. ; R. v. Dyer, 2 Emt, P. a
707. And although an act be committed in pursuance of
a previous concerted plan between the parties, those who
are not present, or so near as to be able to afford aid and
assistance at the time when the offence is committed, are
not prmcipals, but accessories before the fact R y
t7\^- 1^- ^^ ' ^' ^- ^"^^^' ^^- 113; R. V. Else, Id.
J4J ; ii. V. Badcock, Id. 249 ; R. v. Manners, 1C JtP
oOl ; R V. Ilowel, 9 C. & P. 437 ; R. v. Tuchwell, ' C. S
Alar. 215. So, if one of them have been apprehended
before the commission of the offence by the other, he can
be considered only as an accessory before the fact R v
Johnson, a & Mar. 218. But presence during the whole
ot the transaction is not necessary; for instance, if several
combine to forge an instrument, and each executes by him-
self a distinct part of the forgery, and they are not together
M'hen the instrument is conipletad, they are, neverthless.
all guilty as principals. R. v. Bingley, R. S R. 446
See 2 Fast, P. C. 768. As, if A. counsel B. to make the
paper C. to engrave the plate, and D. to fill up the names
of a forged note, and they do so, each without knowing
tliat the others are employed for that purpose, B., C, and
D. may be indicted for the forgery, and A. as an accessory :
R V. Dade, 1 Mood. C. C. 307; for, if several make distinct
parts of a forged instrument, each is a principal, though
he do not know by whom the other parts are executed,
and though It IS finished by one alone in the absence of
the others.-ii:. v. Kirkuood, 1 Mood. C. C. 304 See R y
J^elly, 2 a & K. 379. ' '
There must also be a participation in the act; for
although a man be present whilst a felony is committed,
If he take no part in it and do not act in concert with
ACCESSORIES, ETC. 9l
those who commit it, he will not be a principal in the
^^ second degree, merely because he did not endeavour to
prevent the felony, or apprehend the felon. 1 Hale, 439;
Fast. 350. It is not necessary, however, to prove tliat tho
part} actually aided in the commission of the offence; if
he witched for his companions in order to prevent surprise,
or remained at u convenient distance in order to favour
their escape, if necessary, or was in such a situation as to
be able readily to come to their assistance, the knowledge
ot which was calculated to give additional confidence to
his companions, in contemplation of law, he was present
aidmg and abetting. So, a participation, the result of a
concerted design to commit a specific offence, is sufficient
to constitute a principal in the second degree. Thus if
several act in concert to steal a man's goods, and he' is
induced by fraud to trust one of them, in the presence of
the others, with the possession of the goods, and then
another of the party entice the owner away, that he who
has the goods may carry them off, all are guilty as prin-
cipals. R. V. Standley, R. & R, 305 ; 1 Ruas. 29 : R y
. assey 7 0. & P. 282 ; R. v. Lockett, Id. 300. So, it has'
been holden, that to aid and assist a person to the jurors
unknown, to obtain money by ring-dropping, is felony, if
tlie jury find that the prisoner was confederate with the
person unknown to obtain the money by means of the
practice. R. v. Moore, 1 Leach, 314. So, if two persons
driving carriages incite each other to drive furiously and
one of them run over and kill a man, it is manslaughter in
both R V. Swindall, 2 C. & K. 230. If one encoura-e
am.ther to commit suicide, and be present abetting him
while he does so. such person is guilty of murder as a
principal; and if two persons encoura-e each other to self-
murder, and one kills himself, but the other fails in the
10
ACOESSORIES, ETO.
1: »
I I
attempt, the latter is a principal in the murdoroftho other.
It. V. Dyson, R. d: R, 523. See R. v. HuHsell, 1 Mood. C. C.
356 ; R. V. AUhou, S C. J; P. 418. R. v. ./efl^o/>, 16 Cox,
204. So, likewiae, if several persons conibino for an
unlawful purpose to be carried into eft'oct by unlawful
means. See Fost. 361, 352; particularly, if it Ih) to be
carried into effect notwithstanding any opposition that
maybe offered against it; Foat. 353, 354; and one of
them, in tiie prosecution of it, kill a man, it is murder
in all who are present, whether they actually aid or
abet or not. (See the Sesdnghurst-home case, 1 Hale,
4G1), provided the death were caused by the act of some one
of the ptuty in the course of his endeavours to effect the
common obj.'ct of the assembly. 1 Hawk. c. 31, a. 52 ; Fost.
352 ; R. V. Hodgson, 1 Leach, 6,R.v. Plummer, Kel. 109.
But it is not sufficient that the common purpose is merely
unlawful; it must either be felonious, or, if it be to commit
a misdemeanor, then there must be evidence to show that
the parties engaged intended to carry it out at ail hazards,
R. V. Sheet, 4: F. <&; F. 931. See also R. v. Luck, 3 F. &F,
483; R. V. Craw, 8 Cox, 335, And the act must be the result
of the confederacy ; for, if several are out for the purpose
of committing a felony, and, upon alarm and pursuit, run
different ways, and one of them kill a pursuer to avoid
being taken, the others are not to be considered as princi-
pals in that offence. R. v. White, R. & R. 99. Thus, where
a gang of poachers, consisting of the prisoners and Wil-
liams, attacked a gamekeeper, beat him, and left him
senseless upon the ground, but Williams returned, and
whilst the gamekeeper was insensible upon the ground,
took from him his gun, pocket-book and money. Park, J.'
held that this was robbery in Williams only. R. y. Haiv-
kins, 3 C. d- P. 392, The purpose must also be unlawful;
ACCE880RIK8, ETC.
11
I
for, if the original object be lawful, and be prosecuted by
lawful means, should one of the party in the prosecution
of it kill a man, although the party killing, a-.d all those
who actually aid and abet him in the act, may, according
to circumstances, be guilty of murder or manslaughier,
yet the other persons who are present, and who do not
actually aid and abet, are not guilty as principals in the
second degree.— Foat. 354, 355 ; 2 Hawk. c. 29, s. 9.
A mere participation in the act, without a' felonious,
participation in the design, will not be sufficient, 1 Aa«<,
P. G. 258; R. v. Plummer, Kel. 109. Thus, if a master
assa.ilt another with malice prepense, and the servant
Ignorant of his master's felonious design, take part with
him, and kill the other, it is manslaughter in the servant
and murder in the master. 1 Hale, 446. So, on an indict!
ment under the statute 1 V. c. 85, s. 2, charging A. with
the capital offence of inflicting a bodily injury dangerous
to life, with intent to commit murder, and B. with aiding
and abetting him, it was held to be essential, to make oufe
the charge as against B., that he should have been aware
of A's intention to commit murder. -R. v. Cruse, 8 C <&
P. 541.
In the case of murder by duelling, in strictness both of
the seconds are principals in the second degree ; yet Lord
Hale considers, that, as far as relates to the second of the
party killed, the rule of law in this respect has been too
far strained; and he seems to doubt whether such second
should be deemed a principal in the second degree. 1 Hale,
422, 452. However, in a late case it was holden by Pat'-
te807i,J.,th&t all persons present at a prize-fight, having
gone thither with the purpose of seeing the prize-fighters
strike each other, were principals in the breach of the
peace.-iJ. v. PerHns, 4 C. S P, 537. See R. v. Murphy
12
ACCESSORIES, ETC.
ea £ p. 103, and S. v. Coney. 15 Cox, 46, and npon the
nl llT'f ; "■'! "^'I''' '° ^ ''■"^'' "-"=" participators
m an unlawful act, would both bo guilty of murder, if
death were to en^ue ; and so the law was laid down in
tfli. ; '"■'""'P^' """ '"™''« »' *« commission
ot the aot no per.on can be convicted as an aider and
abettor of his aot.-ij. v. Tyler, 8 C £ P 616
riefl??.""/ f "T ""■' ^"""'"y defined to be accesso-
ries at he fact, and could not have been tried until the
But th>s doctnne ,s exploded ; and it is now settled, that
aU those who arc present aiding and abetting when a
felony ,s committed are principals ia the seco.rf decree!
and may be arraigned and tried before the principal inl ,e
fet degree has been found guilty; 2 ffale,22S ; and may
the first degree is acquitted._ij. v. Taylor, 1 Leach 360 •
Ben^ . Offley, 2 SW. 610, Z uU. ^-T^
In treason and in offences below felony, and in all
felomes m which the punishment of principal in th fi,"
degree and of principals in the second degi'e is th am
the fact as prmcpals m the first degree ; 2 Ha^l. c. 26 s
i\I^ Vo, ^I'r"'^'^ ""* "^''^'^ P^™" "fa participa.
t.on, /bst 346 ; or specially as aiders and abettors R
tut^Thr ^- 1 """"• '''■ ^"' ""- "y P'-rticul r stf:
tutes he pumshment was different, then principals in the
second degree must have been indicted specially a, aMe
a.d abettors. 1 East, P. a 348, 350; It. J. ster^"
ACCESSORIES, ETC. jq
W 473 If indicted as aiders and abettors an indiet-
ment charging that A. gave the mortal blow, and that B
tamed by evidence that B. gave the b]ow;;„d tlvl n"
etdTatT"' f"' '-'' ^^'""^ ' ""'' ^^
appeared that the act was committed bv a n,.r,„„ „ ►
named .n the indictn,ent, the aiders and abeftors S nev
ertheless be convicted. Jt. v. B^hwuk. Bolg 207 ;
i'^t P. 0. 350. See H. v. Suindall. 2 C 1' 1 '^g.
And the same, though the iurv sav h»f ».. '
and as an aider and abettor in the second 7. ^"'^'''?^'
that the conviction unnn fl,. a 7 ' ""^^ ^^^^^^^
v^uuvicLion upon the first count waq annrl »
^ofe. 1 Mood, a a 354 ; H, V G^mv 7 oZ pL 'J'
. i.rwnam, u. v. Downing, supra. By -^er -7 .
145, post "whosoevpr <jlinii „,-^ u ^ ^ ' '' ^-
t.e Amission TZ'^^t:^; S. °L~
be a misdemeanor at common law, or by rir ue of
passed or to be passed, shall be liabk to he tri d jnr d
and punished as a principal oifeuder" ff 1 p ,"'
Coa:, 71. ^ oneuaer. ~M. v. iurtoK, 13
Aceessories before the fn^ J„ .
fact is He wh„,ii„g I^^^^ ^^n hlTl ""
committed, doth vet wnnnro 1 ^ ^*^^^"y
another to'commitTfr;:!:irr6ir~ °' ^"^^
If the party be actually or constructively present when
^: inTccrssoTS t^:::.r -r "^°"^
constitutetheo/enceofV:s:;'■th:rtr;::;■'r;:
In
I
I
14
ACCESSORIES, ETC.
be absent at the time the offence is committed. : Hale
615; E. V. Gordon, 1 Leach, 515 j 1 East, P. C. 352*
R. V. Brown, 14 Cox, 144.
The procurement may be personal, or through the inter-
vention of a third person; Fost. 125; JR. v. Earl of
Somerset, 19 St. Tr. 804 ; R. v. Cooper, 5 (7. i P. 535 .
it may also be direct, by hire, counsel, command, or con^
spiracy ; or indirect, by evincing an express liking, approba-
tion, or assent to another's felonious design of committing
a felony ; 2 Eawk. c. 29, s. 16 ; but the bare concealment
of a felony to be committed will not make the party con-
cealing it an accessory before the fact ; 2 Hawk. c. 29, s
23; nor will tacit acquiescence, or words which amount to
a bare permission, be sufficient to constitute this offence
1 Hale, 616. Tho procurement must be continuing- for
if the procurer of a felony repent, and before the felony is
committed, actually countermand his order, and the pvin-
cipal notwithstanding commit the felony, the original con-
triver will not be an accessory. 1 Hale, 618. So if the
accessory order or advise one crime, and the principal in-
tentionally commit another; as, for instance, to burn a
house, and instead of that he commit a larceny • or to
commit a crime against A., and instead of so doing he com-
mit the same crime against B.—the accessory will not be
answerable; 1 HaU, 617; but, if the principal commit the
same offence against B. by mistake, instead of A., it seems
It would be otherwise. Fost. 370, et seq. ; hut see 1 Hale
617 ; 3 Inst. 51. But it is clear that the accessory is lia-
ble for aU that ensues upon the execution of the unlaw
ful act commanded ; as, for instance, if A. command B to
beat C, and he beat him so that he dies, A. is accessory
to the murder. 4 Bl. Com. 37 ; 1 Hale, 617. Or if A
command B. to burn the house of C, and in doing so the
AOOESSORIES, ETC. J 5
house of D. is also burnt, A. is accessory to the burning
of D. s house. R. v. Saunders, Plowd. 475. So, if the
offence commanded be effected, although by diffei nt means
trom those commanded, as, for instance, if J. W hire J
S to poison A., and, instead of poisoning him, he shoots
t^' .'t'n J/ ^"^^^^heless, liable as accessory. Fast.
^b9, 370. Where the procurement is through an interme-
aiate agent, it is not necessary that the accessory should
name the person to be procured to do the act.-ii y
Cooper, 5G.<&P. 535.
Several persons may be convicted on a joint charge
agamst them as accessories before the fact to a particular
felony, though the only evidence against them is of sepa-
rate acts done by each at separate times and places -My
Barber, 1 C. & K. 442.
It may be necessary to observe, that it is only in felonies
that there can be accessories ; in high treason, :--'ery ins-
tance of incitement, etc., which in felony would make a
man an accessory before the fact, will make him a princi-
pal traitor^o.^. 341; and he must be indicted as such.
1 Hak 235. Also, all those who in felony would be acces-
sories before the fact, in offences under felony are princi-
pals, and indictable as such. 4.BI. Com. 36 ; R. v. Clayton^
la&K. 128; R. V. Moland, 2 Mood. C C, 276; R v
Oreenm>od2Den.m. Sec.7,o.U5post. Inmanslaugh:
tent has been said there can be no accessories before the
fact, for the offence is sudden and unpremeditated ; and
therefore, if A be indicted for murder, and B. as accessory.
If the jury find A. guilty of manslaughter, they must ac'
quit B. 1 ffals, 437, 466, 615 ; 1 ffawk. P. C, e. 30, .. 2.
Where, however, the prisoner procured and gave a woman
poison m order that she might take it and so procure abor-
tion, and she did take it in his absence, and died of its
„'i*V
p ('I
^1
III J
■1 i
I'J ■
)
- 1 1
IH^ia
1
HHHMI
!
J^^^^H^^^^* n: ^^1
,1 i
^^^^^^^^^^K?'' ' ' ^^^^^1
i 1
ft
I^^^Hp. ' ''^1
iBp^W- uH
!
16
ACCESSORIES, ETC.
If g
effects, it was held that he mightb e convicted as an acces-
sory before the fact to the crime of manslaughter. E. v.
Gaylor, Dears. & B. 288. In the course of the argument
in that case, Bramwell, B., said: "Suppose a man for
mischief gives another a strong dose of medicine, not
intending any further injury than to cause him to be sick
and uncomfortable, and death ensues, wculd not that be
manslaughter? Suppose, then, that another had coun-
selled him to do it, would not he who counselled be an
accessory before the fact ?"
Formerly an accessory could not, without his own
consent, unless tried with the principal, be brought to trial
until the guilt of his principal had been legally ascertained
by conviction (1 Anne, at 2, c. 9) or outlawry. Fast.
360; 1 Hale, 623. But now, whosoever shall counsel
procure, or command any other person to commit any
felony, whether the same be a felony at common Liw, or
by viuae of any act passed or to be passed, shall be guilty
of felony, and may be indicted and convicted either as an
accessory before the fact to the principal felony, together
with the principal felon, or after the conviction of tlie
principal feloi:., or may be indicted and convicted of a
substantive felony, whether the principal felon shall or
shaU not have been previously convicted, or shall or shall
not be amenable to justice, and may thereupon be punished
m the same manner as any accessory before the fact to the
same felony if convicted as an accessory may be punished
(Sec. 2, c. 145, post.). And " if any prindipal offender shall
be m anywise convicted of any felony, it shall be lawful to
proceed against any accessory, either before or after the
fact, in the same manner as if such principal felon had
been attainted thereof, notwithstanding such principal
felon shall die, or be pardoned, or otherwise delivered
before attainder; and every such accessory shall upon
conv,
suffei
c. Hi
wher(
indict
and, I
access
having
that a
a a 'i
1st see
accesso
be a fe
or to 1
punishe
so that I
sense a
accessor
Stajff^ord
principal
he proci]
by anoth
tered; au
v., c. 46,
s. 1, did ]
the object
the princi
charged as
now, probf
wise than
bound to a
mined. 9
the princi_j
ACCESSORIES, ETC. ty
conviction suffer tlie
suffered if the princiMr^ ''"f''""™' "« >>« "'ould have
<=• 145, post.) The 2^ r "" """''"•'^''•" (^ec. 6,
»here the accessi; ^ 27' ''" ^'"'"'^ °"'^ W&s
indicted with, or after f "*""""•" '»"' """^ been
and, therefore, where a deferdllf ™ '"''. '^' P™"'"'"'
accessory before the hotT T ""^ ""^"='«<^ «» an
having by his proouremeut ki '.'^""'? "' ^- ^- ^^e
that a like statute didTotl ^'"'''''' " "' h""^"
1st section it is enacted that'' L ' ^^^ ^'" "-^ "'e
accessory before the fact t„ .f^""" *all become an
be a felony at common law Zi ''^ "*"*"' ""e same
- to be passed, may be ; i ^^T^"' '"^ "^^ »"-"
punished in aU re^peds a, ^u ^''' '=™"'cted and
so that the conviction of the 1 ™? * P"""'?"' f*'™ !•"
sense a condition preldeLToT " """ ""^ '" ""^
accessory. R. ,, g , J^J-^^ eonvjction of the
Staiord Sum. Am law ,T ^" ^- '• (""^"^ok.
principal for murder byJlf"'7[J''' ''^'"'■"^ «^ a
he procured the arsenfc 2 "' . ■ ° J"^ ^"""'l "^at
by another person, b„ tw" airnt T '^ '"^'''''''"^'
tared ; and thereupon it I! , '"'° " *»« adminis-
»-•. »• 46, s. 1, wh'ch isT ■?•"'*''' """ *« " * 12
»• Mid not apply' o':;;:";;;"";;- ''■'' "- ^- ^
the objection, and retCed .„ """'' ■'- "'"""^'^'i
the principal' and at^llr^ ''^ T"'' '^'-''^
charged as principal and tie oTher ™ ac °" ^ ""' ''™'«
now, probably, never occur! 7,1 ""'^ <^"''''''' «""'
wise than the genemts^; ''' """""" P'^"" o*"-
bound to answer „nt,l ^ ' • ' ''°'=''''°''>' 'hall not be
">ined. 9 a: 7,?19 Lr^^f' f'^" "^ ««' "^'^
the pnncpa, was indicted for burglarjld L? t
.Wl
18
ACCESSORIES, ETC.
a dwelling-house, and the accessory was charged in the
same indictment as accessory before the fact to the said
''felony and burglary," and the jury acquitted the
principal of the burglary, but found him guilty of the
larceny; it seems the judges were of opinion that the
accessory should have been acquitted ; for the indictment
charged him as accessory to the burglary only, and the
principal being acquitted of that, the accessory should
have been acquitted also. R. v. Donnelly and Vaughan,
E. d; E. 310 ; 2 Marsh. 571. Where three persons were
charged with a larceny, and two others as accessories, in
one count, and the latter were also charged separately in
other counts with subjtantive felonies, it was held that,
althoTigh the principals were acquitted, the accessories
might be convicted on the latter counts. E. v. Pulham,
9 C.S P. 280. And now by section 133 of the Procedure
Act, it is enacted, that *' any number of accessories
at different times to any felony, may be charged with
substantive felonies in the same indictment, and may be
tried together, notwithstanding the principal felon shall
not be included in tlie same indictment, or is not in
custody or amenable to justice.''
If a man be indicted as accessory in the same felony to
several persons, and be found accessory to one, it is a good
verdict, and judgment may be passed upon him.— iJ. v.
Lord tian.har, 9 Co. 189 ; Fost. 361; 1 Hale, 624.
Accessories after the fad.]— An accessory after the fact
is one who, knowing a felony to have been committed by
another, receives, relieves, comforts, or assists the felon.
1 Hale, 618 ; 4 Bl. Com. 37; 2, Hawk. c. 29, s. 1 ; 3 p!
Wms. 475. Any assistance given to one known to be a
felon, in order to hinder his apprehension, trial, or
punishment, is sufficient to make a man an accessory
ACCESSOLIES, ETC.
19
after the fact; as, for instance, that he concealed him in
the house; Dalt 530, 531; or shut the door against his
pursuers until he should have an opportunity of escaping ;
1 Hale, 619 ; or took money %m him to allow hfm to
escape ; 9 ^. 4, pi. 1 ; or supplied him with money, a
horse, or other necessaries, in order to enable him to
escape ; Hays Sum. 218 ; 2 Hawk. c. 29, .. 26 ; or that
the principal was in prison, and J. W. bribed the gaoler
to let him escape, or conveyed instruments to him to
enable him to break prison and escape—l Hale 62^
But merely suffering the principal to escape will not
make the party an accessory after the fact, for it amounts
at most but to a mere omission. 9 ^. 4 ^Z. 1 ; i Hale,
bl9. So, If a person supply a felon in prison with
victuals or other necessaries for his sustenance ; 1 Hah
620 ; or relieve and maintain him if he be bailed out of
prison ; Id ; or it a physician or surgeon professionally
attend a felon sick or mounded, although he know him to
be a felon; 1 Hale, 3r;2; or if a person speak or write in
order to obtain a felon's pardon or deliverance ; 26 Ass
47 ; or advise his friends to write to the witnesses not to
appear against him at his trial, and they write accordinaly .
3 Inst. 139; 1 Hale, 620; or even if he himself agree'
tor money, not to give evidence against the felon; Moor
8 ; or know of the felony and do not discover it ; 1 Hah
371, 618 ; none of these acts would be sufficient to make'
the party an accessory after the fact. He must be proved
to have done some act to assist the felon personally See
B. V. Chappie, ^ C. & P. 355. But if he employ another
parson to do so, he will be equally guilty as if he
harboured or relieved him himself.-i2. y. Jarvis 2 M
(& Bob. 40. '
A wife is not punishable as accessory for receiving, etc.,
.;:if
20
ACCESSOBJCES, ETC.
her husband, although she knew him to have committed
felony ; 1 Hale, 48, 621 ; R. v. Manning, 2 G. & K.
903, n. ; for she is presumed to act under his coercion.
But no other relation of persons can excuse the wilful
receipt or assistance of felons ; a father cannot assist his
child, a child his parent, a husband his wife, a brother hia
brother, a master his servant, or a servant his master.
Id. Even one may make himself an accessory after the
fact to a larceny of his own goods, or to a robbery on
himself, by harboring the thief, or assisting in his escape.
Fost. 123 ; Gromp. 41 h, pi. 4 <£; 5. If the wife alone,
the husband being ignorant of it, receive any other person
being a felon, the wife is accessory, and not the husband.
1 Hale, 621. And if the husband and wife both receive
a felon knowingly, it shall be adjudged only the act of the
husband, and the wif6 shall be acquitted. — Id.
To constitute this offence, it is necessary that the
accessory have notice, direct or implied, at the time he
assists or comforts the felon, that he had committed a
felony. 2 Hawk e. 29, 8. 32. It is also necessary, that
the felony be completed at the time the assistance is given ;
for, if one wound another mortally, and after the wound
given, but before death ensues, a person assist or receive
the delinquent, this does not make him accessory to the
homicide; for until death ensues no murder or man-
slaughter is committed.— 2 Hawk c. 29, s. 35 ; 4 Bl,
Com. 38.
In high treason there are no accessories after the fact,
those who in felony would be accessories after the fact
being principals in high treason ; yet in their progress to
conviction they must be treated as accessories, and indicted
specially for the receipt, etc., and not as principal traitors.
1 Hale, 238. So, in offences under felony there are no
access
act of
an offi
like, 1
misdei
the fai
tried b
consen
But th
623;
and ha^
indictee
8. 10.)
shall b(
whether
virtue c
and con
principa]
the conv
and conv
cipal fel
vicced, 01
may ther
sory aftei
accessory.
On an
only, he
accessory
The rec
constitute
misdemeai
Hale, 62(
were made
ACCESSORIES, ETC. gl
accessories after the fact; 1 Hale fiiq ux. . •
act of the receiver amount tf ' ' ^^^^oug\ if the
an officer of justice fnT '"''"'' ^'^ <^° obstructing
liice, he wourXhXTtie^^^ ^ ^^^
misdemeanor. 2 ^a^^fc. / ^g ^f ^f ^^^^« ^^^ ^^ as for a
the fact could not unfil fi. ! Accessories after
Wed beta the ^nv.;^! 'o^S'' " * ^^ ^•. - «, be
consented to it. 1 bZ 623 p i""?"'' ""''^' '""^
But they „i,ht be ^ Z'lt*;^'^:^^-
o^o; or separatplv nffoT.fk • • i^^^ncipai; 1 Hale,
and ..aving^het ^nfTu 'ST' ""■ ^Z" ^™™'^<'
indicted or tried for the sam 'off' ^ "™" »»' ''" again
«• 10.) And n„„, by Xl ^ ir.- ^' ''• *■ "• "*■
shall become an accessorv .ff" J !' *""• "hosoever
whether the same tTfeW at "' '° ""^ '^'""^'
virtue of any act passed or tT ""111""™ '"" " ^y
and convicted ei ^71! ° ' ^'"'^- "^^ •« '"dieted
principalfelony.ZtC withT"^ '"'^ '"^ '-' *« ">e
the conviction onhTl-, ,1 ^"""1"' ''^'™' »' after
andconvict^Tof a subrT";'""''" """^ ■"> '"dieted
cipal felon shl 1 or h u tTh^ T "'^"'" '"^ P"""
victed, or shall or shallnoth !f ""■'""""y ''™-
".ay thereupon C pulhTd i^.r^"*"^ »" j»^««^.
sory after the tlCt ''^ ^""^"^ «» any acce^
accessory, ma; 1:,":^^' ^'''™^' '^ --ted as an
o»^^:r^rcS:.rer.rtr'^'-
accessory after the fact ^R v ;f:,/7 / ' J"^ ^"'^^ ^
-^^itufoT t^:::r^ "' ""' »' ~ ^^
misdemeanor, p~b.rbrfirTnd''t""^ ^ '""""
were made accessor.,, after the fact, and, by the Jed^
22
ACCESSORIES, ETC.
Stat. 7 & 8 G. 4, c. 29, ss, 54, 55, GO, might in certain
cases be indicted either as accessories after the fact to
felony, or for a susbtantive felony, or niiglit be prosecuted
for a misdeme; ■ . v punished upon summary conviction:
(eee now ae-^ ::iti, l.s7, 138 of the Procedure Act :) yet
the receipt of stolen goods is still a distinct and separate
offence.
H'
CHAPTER 145.
AN ACT RESPECTING ACCRSSORlKS.
(Imperial Act, 24-26 V., c. 94 )
^ of Commons of Canada, enacts as follows !-
FELONIES.
« »■ l.e were" prJ^ZTt^^y.;"' P;»'"'-J i" •!' "-pec,
3^a, r., . „. .. «, ^„, „- . ^.l, r^'^^'-^'-^;;-. -^; ".,.,,
As to venue, see sec. 17, Procedure Act. a's to ioi„,ler
of offenders, see sec. 133, Procedure Act
JlTofe 62, 0,^ T^.^ '^'-- - taken from the 11 &
■i- v., 0. 46, s. 1, upon which it was held (h.t ;»
»o oycction to an accessor, before th; faotting c „ ic:;
that h,s principal had been acquitted. Hall andZ^
were jointly indicted for steaUng ce tain tl' M
and it"?'"?' "■" ""^'^ " ^ »"-- a^iustnughe
and t clearly appeared that Hall had stolen the cot on aJ
the inst.gat,on of Hughes, and in his absen e t „
contended, that as Hall had been acquL H ^hes J, "
te so also; for the statute had only alter d th, form '
P eadmg, and not the law, as to acceLies b for. h L
but .t was held, that the statute had n.ade the o, nee ,f
the accessory before the fact a substantive felony and thl
he oH law, which made the conviction of the prinla a
cond,t,on preced.., to the conviction of the access„rl!
done away by that enactmont.-iJ. v. B«„i:'Z!aa
In every case where there may be a doubt whether a
24
ACCIS80RIE8, ETC.
person l)t> a principnl or accessory before the fact, it may
be advisable to prefer the indictment under this suction, as
such an indictment will be »utli<;iont, whetlier it turn out
on the evidence that such person was a principal oracces-
8oiy before the fact, as well as where it is clear that ho
was either the one or the other, but it is uncertain which
he was.
It may be well to observe, however, that there are cases
in which it is not clear that an indictment under this
Hection would suffice. Suppose for instance that the
offence of the principal be local ; e. g., a burglary com-
mitted in the county of Worcester, and that the accessory
is indicted in the county of Stafford on the grt>und that the
evidence shows that the acts, by which he became accessory
were done in the latter county, it may be questionable
whether the accessory could be indicted and tried under
this section in that county ; for it only authorises the
accessory to be indicted and tried "as if he were a
principal felon," and the principal could only be indicted
and tried in Worcestershire. Possibly if such an objection
were taken on the trial, it might be held that s. 7 of this
Act authorised the indictment and trial in Staffordshire on
the ground that the evidence showed the party to have
become an accessory before the fact in that county. But
supposing that to be so, the same question might be raised
in arrest of judgment or on error, and on the face of the
record all that would appear would be that the prisoner
was indicted and tried as a principal in Staffordshire for a
burglary committed in Worcestershire ; but even here it
might be held that the effect of the 11 & 12 V., c. 46,
s. 1, is to make every indictment which charges a person aS
principal contain a charge of being accessory before the
fact also, and consequently that there was nothing on the
If '^,T- i i
ACCESSORIES, ETC. Off
fj.00 ,,f the record i„„o„,i,to„t witi, tho fact, having proved
a count framed inid(!r tho next section
In A V. CW^.*, Stair„„, .. s,„„ ^^^_ jgg
t.b.O., the pnsoner was in.lietod a, „ principal for romde^
l.y arsemc and the jury found that hepr,«urLl the a" nie
wa, al^sent when it was administered ; and thereupon t
was objected that the U & 12 V c 46 s 1 ^H I
app-y to mu^er. hut Wii.ia.s, X. :;e::;,:d Ihelj:'
dec aion to „ v'Tr ^'l'" """"""'^ communicated the
c 4 ss 9 7, ■ Tn ' '?'""='' ""' """ '■" "-^ 7 Geo. 4,
ss 1 2 3 , ; , ':,:i *■ ■=•*»•»• 1 - & S Geo. 4, c. 28
BB. 1; 2, 3 5, 13 ; 4 & 6 v., c. 22, and other statutes it wal
man^ost that "felony" included murder; and the e Ired
t:t:::Z^. "'^'"""'^"" -i^-«on, refused
My Lord Hale in commenting on the jurisdiction of
Commission of the Peace mention^ not mSl , t xp^s
name, but only felonies generally yet hv thl? ,
words in these Statutes fnd this^Co^l^LlTheyr
power to hear and determine murder, and mais a Iter,
and thus It has been resolved. 5 Ed. 6 Dy 69 a pl?
Jusuce of Peace, and 9 Hen. 4, 24. Coron. 437 " Th ,
Z T^'uT'' "' ^""■™=. J- -<« correct.
thif late °Z ^ t"""!™' ^:''' ''") ^''"""■^ "'■J-'^ '0
th.s clause. After treating the rule in treason and misde-
:ri !
26
ACCESSORIES, ETC.
meanors that all are principals as absurd, he says, " But
there is no reason why felonies should be involved in the
same absurdity. Supposing a man has been guilty, and
accused as accessory before the fact to a murder, and he is
then, according to the above section, indicted for having
committed murder, how are the jury, who are bound by
their oath to give their verdict according to the evidence,
to find a man guilty of the murder, when the evidence is
that he was not present at the murder — that he did not
aid or abet those who committed it, but had merely advised
it some months before ? " Now the answer to this is very
plain; the objection rests merely on a legal distinction,
which would never have entered into the head of any one
but a lawyer, and was not finally settled till Rex v. Birch-
enough, R. & M. C. C. K. 477 ; and there are old authori-
ties the other way in Stamforde, which were recognised by
Lord Hale, 1 Hale, 626; 2 Hale 224, and Foster, 361.
The distinction is this : that if A. procures B. to murder
C, and this murder is committed by B. in A's absence, A.
is guilty of murder if B. is an innocent agent, but is oTily
an accessory before the fact if B. is a guilty agent. Now,
it is obvious that there is no more difficulty in a jury
understanding that they may convict A. of murder, where
B. is a guilty agent than where he is an innocent one. In
either case all they have to try is whether A. caused B. to
commit the murder. Juries are perfectly well able to
understand that he who causes a thing to be done by
another is just as much responsible as if he did that thing
himself— g-wi facit per alium facit per se— and there is
no more difficulty in satisfying them that a man ought to
be convicted of a murder who causes it to be done by
another in his absence, than in satisfying them that where
one man inflicts a mortal wound in the presence of another,
ACCESSORIES, ETC. 27
that wound is as much hia wouud as if he had iuiiicted it
n bofhrr T- """""■"« '" "- -' '"at caused it
In both cases the jury must be satisfied that the act of the
clause s, that it reduces the question for the jury to tlj
cases TdTnr "T^"" '"'"^ "'^ f"* l' "" -•-'
^ated ,t : r* *" "^ "'''"" ""» i' i' done, is
been the ru^"'"? *'' ""'' '"'' "-^ '""^ '>"^ »'™y^
been the rule m treason and misdemeanor, and felony was
the only exception, which the II and 12 V c 46 sT
fery properly removed. ' ' ^•
deneanor all are prmcipals, and "of course those who
advise treason or misdemeanor, and are not present when
t .s committed, must necessarily be indicted rr, Lrpal"
ml or wtt ""'^' "■"■ ■='""«"'8 it as princi-
pal, or laymg it special as it will appear by the evidence
"xrfrz"'^ ""^/"'^ '^--> »d - ^^
harb r. m r""'','"' ""^ P™""™^ '™ '» «^«ape or
wi h '"* " "'"' "' >«= ''"°"^ W»' charged
with treason, or to have committed treason, you may
.real tit" b\" 'T'' ""'"'• "-' A- -mmitte^
treason that B. knew of it and received him -It v
Trae>,, 6 Mod. 30, per Holt C. J. '
The mere fact of being stakeholder for a prize fi«ht
^vhere one of the combatants was killed does ■ ot „,t
one accessory before the ftpt f„ ti. , . ®
TayW, 13 L, 68. "" »'»"^'^"ii"te'-- -iJ. V.
Ul
28
ACCESSORIES, ETC.
fi r iW
iS. Every one who counsels, procures or commands any othet
person to commit any felony, whetlier the same is a felony at common
law, or by virtue of any Act, is guilty of felony, and may be indicted,
and convicted either as an accessory before the fact to the principal
felony, together with the principal felon, or after the conviction of
the principal felon,— or may be indicted and convicted of a substan-
tive felony, whether the principal felon has or has not been convicted,
or is or is not amenable to justice, — and may thereupon be punished
in the same manner as any accessory before the fact to the same
felony, if convicted as an accessory, may be punished.— 31 V., c. 72,
s. 2. Sec. 2, Imp.
Note hy Greaves. — " The prosecutor may at his option
prefer an indictment under this or the preceding section,
and we have shown in the last note (under sec. 1, ante.)
that there are cases in which it may be advisable to prefer
an indictment under this section."
Notwithstanding this section, the soliciting and inciting
a person to commit a felony, where no felony is in fact
comrxiitted by the person so solicited, still remains a mis-
demeanor only.— iJ. V. Gregory, L. R., 1 C. C. R. 77.
3. In every felony, every principal in the second degree shall be
punishable in the same manner as the principal in the first degree is
punishable. —31 V., c. 69, s. 9, part, and c. 72, n. 3 j 32-33 F., c. 21,
s. 107, pari.
4. Every one who becomes an accessory after the fact to any
felony, whether the same is a felony at common law or by virtue of
any Act, may be indicted and convicted, either as an accessory after
the fact to the principal felony, together with the pnncipal felon, or
after the conviction of the principal felon, or may be indicted and
convicted of a substantive felony, whether the principal felon has or
has not been convicted, or is or is not amenable to justice, and may
thereupon be punished in like manner as any accessory after the fact
to the same felony, if convicted as an accessory, may be punished.
—31 v., c. n, s. 4 ; 32-33 V., c 20, s. 8, part. Sec 3, Imp.
See sees. 136 and 138 of the Procedure Act.
As to venue, sec. 17 of Procedure Act.
ACCrssOEIES, ETC. 29
Four prisoners were indicted for murder jointly with
two others indicted as accessories after the fact. The
prisoners indicted for murder were found guilty of
manslaughter, and the other two guilty of having been
accessories after the fact to manslaughter. Hdd, on
motion in arrest of judgment, that the conviction against
the accessories was right.-ii;. v. Richards, 13 Cox, 611.
bee U. V. Brannon, 14 Cox, 394
mon law, or by virtue of any Act shiU h» '; ki * ■
„ i 1 .1 •' ' ^"'^'1 "e 'lableto imnrieontnent for
any term leas than two years 31 F ^ fio „ o . P"«y""ieni ror
vart- 32-3'iF r IQ « r7 / c.'' ^' *' ^'P^^t> and c. 72, *.6,
part, 61-66 v., c. 19, s. 57, part. Sec. 4, Imp
at.a,„.ed thereof. „otw,.l„ia„<li„g «„cl, principal felon Ji,, „'1°
pardoned or „.her»,e. delivered before such attainder ; and e e y
v., c. 11, s. b , 32-3.3 v., c. 20, s. 8, part. Sec. 5, Imp.
MISDEMEANORS.
7. Every one who aids, abets, counsels or procures the commission
of any m.sdemeanor, whether the same is a misdemeanor at cZmon
^w. or by v.r „e of any Act, isguilty of a misden^eanor and iabrto
, 9 t' tv 7^ ^\7''' " ^ P""^'P^' ofre„der.-31 v7 72,
S.U; 40 v., c. 32, .. 1, part. Sec. 8, Lnp. R. y. Burton, 13 cL, 71.
OFFENCES PUNISHABLE ON SUMMARY CONVICTION.
8. Every one who aids, abets, counsels or procures the commission
Of any otlence punishable on sumn.ary convltion, either ToT:^^^
meof>tscomm>ss.o„ orforthefirstand second time onlv. or fo^
thefi.jt fme only, shall, on conviction, be liable for ev'ey first
second or subsequent offence, of aiding, abetting, counselling or nro:
curmg, to the san.e forfeiture and punishment to wl i h ! peZ
varftr^ J" ' "• ^"^' ''"^ '• 22. *• 70, and c 31, s. 16
pari; 33 F., c. 31, s. d, part. j »• *«,
'^ L
CHAPTER 146.
(11-12 v., 0. 12, Imp.)
AN ACT RESPECTING TREASON AND OTHER OF-
FENCES AGAINST THE QUEEN'S AUTHORITY.
TTER Majesty, by and with the advice and consent of the Senate
-•-*- and House of Commons of Canada, enacts as follows :—
1. Every one who compasses, imagines, invents, devises, or in-
tends death or destruction, or any bodily harm, tending to death or
destruction, maiming or wounding, imprisonment or restraint of our
Sovereign Lady the Queen, Her Heirs or Successors, and expresses,
utters or declares such compassing8,.imaginations, inventions, devices
or intentions, or any of them, by publishing any printing or writing,
or by any overt act or deed, is guilty of treason and shall sufTer death'
31 v., c. 69, s. 2; 32-33 V., c. 17. s. 1.
2. Every officer or soldier in Her Majesty's army, who holds cor-
respondence with any rebel, or enemy of Her Majesty, or gives him
advice or intelligence, either by letters, messages, signs or tokens, or
in any manner or way whatsoever, or treats with sucli rebel or enemy,
or enters into any condition with him without Her Majesty's license'
or the license of the general, lieutenant general or chief commander^
is guilty of treason and shall suffer death.— 31 K, c 69, s. 3.
3. Every one who compasses, imagines, invents, devises or intends
to deprive or depose Our Sovereign Lady the Queen, Her Heirs or
Successors, from the style, honor or royal name of the imperial crown
of the United Kingdom, or of any other of Her Majesty's dominions
or countries, — or to lovy war against Her Majesty, Her Heirs or
Successors, within any part of the United Kingdom or of Canada, in
order, by force or constraint, to coinp^' her or them to change her
or their measures or counsels, or in order to put any force or con-
straint upon, or in order to intimidate or overawe both Houses or
either House of Parliament, of the United Kingdom or of Canada,
or to move or stir any foreigner or stranger with force to invade the
United Kingdom or Canada, or any other of Her Majesty's domi-
nions or countries under the obeisance of Her Majesty, Her Heirs or
Successors, and expresses, utters or declares such compassinge, im-
aginations, inventions, devices or intentions, or any of them, by pub-
IREASON, ETC.
31
1.8l.mg any pnnt.ng or wnt.ng, or by open and alviced speaking, or
by any overt act or deed, is guilty of felony, and hable to imprison-
ment for life.-31 F.,c.69,..5; 32-33 y.,c.li,s. 1.
4. Everyone who confederates, combines or conspires with any
person to do any act of violence, in order to intimidate, or to put any
force or constramt upon any Legislative Council. Legislative Assem-
blyor House of Assembly in any Province of Canada, is guilty of
felony, and liable to fourteen years' imprisonment.-Sl F'., c. 71, / 5.
A^f-.nirT f '\^' prosecuted for any felony by virtue of this
tLl Tr ""^ compaesings, imaginations, inventions, de-
te ed or declared by open and advised speaking only, unless infor.
mauon of such compassmgs, imaginations, inventions, devices and
1 or d"l '". ''" "'''' ^' "'^'^'^ ^'" ''""' --« -P-«-d, utter.
e,i or declared, is given upon oath to one or more justices of the peace,
withm SIX days after snch words are spoken, and unless a warran
fur the apprehension of the person by whom such words were sooken
IS issued within ten days next after such information is giveTasTfore-
said ; and no person shall be convicted of any such compassings,
1 naginations, inventions, devices or intentions as aforesaid, in so
f.r as the same are expressed, uttered or declared by open or
alvised speaking as aforesaid, except upon his own confession
.n open court, or unless the words so spoken are proved by ^wo
credible witnesses.— 31 F., c. 69, «. 6. F u oy .wo
6. If any person, being a citizen or subj -ct of any foreign ate
or country at peace with Her Majesty, is or conti.fues iifarms
ammst Her Majesty, within Canada, or commits any act of hosUl-
uy therein, or enters Canada with design or intent to levy war
against Her Majesty, or Uy commit any felony therein, for which Iny
person would m Canada, be liable to suffer death, the Governor Gen-
Tetr^Tor '"; ^'^—"bl-g Of- -ilitia general cour^marL i
the tnal of such person, under « 7he Militia Act; " and upon beine
found guilty by such court m.rtial of offending against theprvisbnf
of this section, such person shall be sentenced by such court martia
:. itsl 2."'^'' "' '"°^^ "'•'^'- P»»i«hment as the court awards.-31 F,
7. Every subject of iTer Majesty, within Canada, who levies war
against Hey Majesty, hi c npany with any of t!.e subjects or cTtizens
Of any foreign state ... c.ntry then at peace w.th Her Majesty o'
enters Canada m ccnr.ny with any such subject, or citiins with
S2
TREASON, ETC.
* *l
intent to levy war on Her Majesty, or to commit any flncli act of fel-
ony as aforesaid, or wiio, with the design or intent to aid and assist,
joins himself to any person or persons whomsoever, whether subjects
or aliens, who have entered Canada with design or intent to levy war
on Her Majesty, or to commit any such felony within the same, may
be tried and punished by a militia court martial, in the same man-
ner as any citizen or subject of a foreign state or country, at peace
with Her Majesty, may be tried and punished under the next pre-
ceding section. — 31 V., c. 14, s. 3.
8. Every subject of Her Majesty, and every citizen or subject of
any foreign state or country, who offends against the provisions of tl»e
two sections next preceding, is guilty of felony, and may, notwith-
standing the provisions hereinbefore contained, be prosecuted and
tried in any county or district of the Province in which such ofTence
was committed, before any court of competent jurisdiction, in the
Bame manner ac if the offence had been committed in such county
or district, and, upon conviction, shall suffer death as a felon. — 31 V.,
c. 14, s. 4. I
9. Nothing her'„i>, contained shall lessen the force of or in any
manner affect anything enacted hy the statute passed in the twenty-
fifth year of the reign of His Majesty King Edward the Third, inti-
tuled "A declaration which offences nhall be adjudged treason."— 31
v., c. 69, s. 1.
See Avchbold, 779; Stephens Orim. L., 32; Sir John
Kelyng's Grown cases, p. 7 — and a treatise on treason,
printed therein : Foster's Cr. Law, discourse on high
Treason, 183.
Also, R. V. Gallagher, 16 Gox, 291 ; R. v. Deasy, 15
Gox, 334, for prosecutions under the Imperial Act. Sees.
106, 186 and 187 of the Procedure Act, are appiiouble to
trials for offences under this Act ; ulso, sees. 3 and 4 as to
jurisdiction.
CHAPTER 147.
AN ACT EESPKCTING KIOTS, UMAWFUL AS.in.
BLIES AND BREACHES OF ThTpLce
TTER Majesty, by and with the arlviro „ a
there are w.thi. his jurisdLrX^sTo Z' ". '" "^'''^^ ^"^^
more unlawfully riotously and fumnh ,o '"^'' ^^ '^^^^« o^"
the disturbance Of the pnLTllTluT ' '''""^^^'^ '«^«''-'- 1<>
such unlawful, riotous'^aud tumu Lt i'^^M '' ''^ ^'^"^^ «'^-^«
rioters, or a. near to then, as h IreafeTr "^ "' '"' """"^ the
connnand. or cause to be commarrd sit^. "'^ ^"'^^ * '^"'^ ^^i'^^.
and With loud voice, .„alce or cate ;« b" uadf '/'^' f ^^' ^^^"'^
these words, or to the like effect — proclamation in
" to their habitations or to their lawful h ^*"'"^^'^ '^ ^^P^'**
" bein, guilty of an offence, o: convcion'or"! T". *'" ^^'^ «^
" sentenced to imprisonmen; for life "' ''^ ^^'^ »'*^ ^e
31 F.,c. 70, *.l.^a,<,«„^,,, 2 an<;3. " ^""^ ^^^* "''" Q^^^^"
a. All persons who,—
(a.) With force and arms willfully opnose h.V^.
person who begins or is about to .nake the sS^^n> I '' ^"'"^ ^^^
such proclamation is not made orl ^^' '*'^^ ^''^^"''""^ation, whereby
su!^ p:::::::iSr;r:^^ - -e hour a^er
was hindered as aforesa.d, Tnt: V^'Z T T r'''''
themselves w.thin one hour after such him ale '^''^''''
Are gudty of felony and liable to imprisonment'Tor life
2. No person shall be proaecutpd fnr a T ^"*-
unless such prosecution fs rmmtnced Z^!?'^ ""'^'- *^'« -«*-"
offence is committed.-3I K, :;;:^, ^^^VrW^'^^"^^^'^
aslL^Vth:i\ira!:t'tti'"^"'^ ^"^ ^"-'^--'^
a a.or^said. or twelve or more of them, continue
* *
34
RIOTS, ETC.
together, and do not disperse themselves, for the space of one hour
after the proclamation is made, or after such hindrance as aforesaid,
every such sheriff, mayor, justice and other officer as aforesaid, and
every constable or other peace officer, and all persons required by them
to assist, shall cause such persons to be apprehended and carried before
a justice of the peace ; and if any of the persona so assembled is killed
or iiurt, in the apprehension of such persons or in the endeavor to
apprehend or disperse them, by reason of their resistance, every
person ordering them to tie apprehended or dispersed, and every
person executing such orders, shall be indemnified against all pro-
ceedings of every kind in respect thereof.— 31 V., c. 70, ss. 4 and 5.
4. All meetings and assemblies of persons for the purpose of
training or drilling themselves, or of being trained or drilled to the
use of arms or for the purpose of practising military exercises, move-
ments or evolutions, without lawful authority for so doing, are
unlawful and prohibited.— 31 F., c. 15, s. I, part.
6. Every one who is present at or attends any such meeting or
assembly, for the purpose of training any other person or persons to
the use of arms or to the practice of military exercises, movements or
evolutions, or who, without lawful authority for so doing, trains or
drills any other person or persons to the use of arms, or to the prac-
tice of military exercises, movements or evolutions, or who aids or
assists therein, is guilty of a misdemeanor, and liable to two years'
imprisonment. — 31 F., c. 15, a. I,pa7't.
6. Every one who attends or is present at any such meeting or
assembly, for the purpose of being, or who, at any such meeting or
assembly, is trained or drilled to the use of arms, or to the practice
of military exercises, movements or evolutions, is guilty of a mis-
demeanor and liable to two years' imprisonment. — 31 F., c. 15, *. 1,
part.
7. Any justice of the peace, constable or peace officer, or any person
acting in his aid or assistance, may disperse any such unlawful meet-
ing or assembly as in the three sections next preceding mentioned,
and may arrest and detain any j^terson present at or aiding, assisting
or abettmg any such assembly or meeting as aforesaid ; and the
justice of the peace who arrests any such person or before whom any
person so arrested is brought, may commit such person for trial for
such offence, unless such person gives bail for his appearance at the
next court of competent jurisdiction, to answer to any indictment
which is preferred against him for any such offence. — 31 F., c. 15,
s. 2.
RIOTS, ETC.
35
six months after the offeno.T P''»"ecution is commenced witliin
ottence is committed.-31 V., c. 15, «. 9.
together to^trdLrurbancrff Ihl'^'^'li *"'^ '"'""I'uously assembled
force demolish, pull down or ^ ! ''" ^^^''^' ""'**v''«Jly a"d with
or destroy, any church chan^T .*"" '^'^'" to demolish, pull down
worship, or any house,' abTe ' 7'??-^""^^ ^'^ «*''^^ P>-« of divine
office, shop, mill, malt-house hoZtK*"'' °"'"'""''' warehouse,
fold, or any building or erection ^'."' ^™""^' '''^'^' ''o^«' or
any trade or manul" e ^Vn; j'":;!"^'^"'^'^^'"^^^^^^^
other than such as are in this se"/ Z7^ thereof.-or any building
Her Majesty, or to a y c"u ' m. " r""'""*^' •'^'^"^'^S ^
village, parish or placef orTln' '"""'^'P^''^^^' aiding, city, town,
any university, ortoa^yJ^ZLT'Z^''' " ''"'^' °^ ''^" ''
or society or persons asldaZtraZ l" Tj ""^"'^''''^'^"'^^ ^^dy
or dedicated to public use or 7 ^ '"^^"' pwrpoae, or devoted
public subscription or oontrZ^Z''''' ""' '"'"''"'^ ''' "'^'''^'''''''^ ^y
fixed or movable, prepared for of 'T ^."^ '"^''^''"^••y. whether
in any branch thereof; Inv steT'^ ^"'^ '" '"^ manufacture or
Binkmg, working, ventilatinror ^ • '"^'"' ^^ ''^^''' ""^ine for
building or erection us^ n^ondtr^r'^"'"^' " "'^ ^^^'''^'
or any bridge, wagon-way or track fo,n """''' 1 '"^ '"'"''
mine, are guilty of felony, and hab,e to n '^'"^ """""'"' '''''" "^"^
F., c. 22. *. 15 ; 24-25 V c 97 . , , rP'''^^"'"*'"^ ^or life.-32-33
force injure or da„,..eZ,i'r; f"',' ""'""fH^ '"'I "iUi
Of divine worship, l^C «.b » "f i"''''"'' '"f "'8-l'°™e,pl.ce
office, ,l,op, mill „r. L!. , '=»»"l'-''»"»«. oul-home, wareliouse,
force and violence, or in Jr.?. ? ^ common purpose with
..ar,„, are .Jr.ZllZZX'l^, l^eT ."'"" "1
86
BI0T8, ETC.
ti
12. Three or more rcrpons who, having afisembled, continue toge-
ther with intent unlu.vtully to execute any common purpoBe witu
force and violence, or in any manner calculated to create terror and
alarm, and who endeavor to execute such ^jurpose.are although such
purpose is not executed, guilty of a rout, and liable to three years'
imprisonment.— 1 Ji. S. N. B., c. 147, *. 7.
13. Three or more persons who, having assembled, continue
together with intent unlawfully to execute any common purpune with
force and violence, and who, wholly or in piii f, execute such purpose
in a manner calculated to create terror and alarm, are guilty of a
riot, and liable to four yearn' imprisonment. — 1 li. S. N. B., c 147,
S.8.
14. Two or more persons who fight together i a public place, in
a manner calculated to create terror and alarii,, are guilty of an
affray, and liable, on summary conviction, to throe montliw' imprison-
ment, li. S. N. S. (3j-d S.), c. 162, s. 1 ; I R. S. N. B., c. 147, s. 9.
Sees. 1, 2, 3 are from the I Geo. 1, st. 2, c. 5. See
Archbold, 902.
Sees. 4, 5, 6, 7, 8 are from GO Geo. 3,-1 Geo. 4, c. 1.
Sees. 11, 12, 13, 14 are enactments from Nova Scotia
and New Brunswick, extended to all the Dominion on
unlawful assemblies, routs, riots and affrays.
The words in italics in sec. 9 are not in the Imperial
Act.
Indictment under Sect. 9. — That on at
J. S., J. W. and E. W., together with divers other evil-dis-
posed persons, to the jurors aforesaid unknown, unlaw-
fully, riotously and tumultuously did assemble together, to
the disturbance of the public peace; and being then and
there so unlawfully, riotously and tumultuously assembled
together as aforesaid, did then and there feloniously, un-
lawfully and with force begin to demolish and pull down
the dwelling-house of one J. N., there situate, against the
form
Local description necessary in the body of the indict-
ment.— A V. Richards, 1 M. & Rob. 177.
RIOTS, ETC. 37
Bv sec. 206 of the Procedure Acf, it i« enacted that if
"pon the trial of any person, for any felony mentioned in the
-nth section of " Act resj.cting riots, unlawful assem-
bUes, and breaches of the peace," the jury is not satisfied
hut such person is guilf^- ther.of. but is satisfied that he
18 ^"% of any off.ncu u.ontioned in the tenth section of
Z Act they n.uy find him guilty thereof, and he may
be pumshed n.cordingly_32-;^-^ V.. c. 22, s. 16, paJ;
24-25 F.,c. 9 .01andl2,/m/,.
Indictment under Sect. lO.-Thaton at
S.. J. W. and E. W., together with divers oth<'r"eviU
disposed person., to the said jurors unknown, unlawfully,
notously, and tumultuous- did assemble together u> th^
d sturbancc of the public peaco. and being thtn and there
o unlawfully, riotously and tumultuously as«o,ubled toge-
ther as aforesaid, did then and there unlawfully and ^^th
force injure a certain dwelling-house of one J N., there
1" i VTf .''•' '"'" ^^^ ^^ ««"-^ «^-^i»g ^«^-
age instead of injure.
Local descriptions necessary as under sec. 9.
Ihe riotous character of the assembly must be proved.
It must be proved that these three or. more, but not less
than three, persons assembled together, and that their
assembling was accompanied with some such circum-
stances, either of actual force or violence, or at least of an
apparent tendency thereto, as were calculated to inspire
people with terror, such as being armed, using threatening
peeches, turbulent gestures, or the like. It is a sufficient
terror and alarm, if any one of the Queen's subjects be in
fact terrified. Archbold, 842. Then prove that the assem-
bly began with force to demolish the house in question. It
must appear that they began to demolish some part of the
freehold; for instance, the demolition of moveable shutters
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KIOTS, ETC.
is not sufficient. — E. v. Howell, 9 C. & P. 437. A demo-
lition by fire is within the Statute. Prove that the defen-
dants were either active in demolishing the house, or
present, aiding and abetting. To convict under sect. 9,
the jury must be satisfied that the ultimate object of the
rioters was to demolish the house, and that if they had
carried their intention into effect, they would in point of
fact have demolished it ; for if the rioters merely do an
injury to the house, and then of their own accord go
away as having completed their purpose it is not a
beginning to demolish within this section. But a total
demolition is not necessary, though the parties were not
interrupted, and the fact that the rioters left a chimney
remaining will not prevent the Statute from applying. —
Archhold. But if the demolishing or intent to demolish be
not proved, and evidence of riot and injury or damage to
the building is produced, the jury may find the defendant
guilty of the misdemeanor created by sect. 10, by the
proviso contained in the aforesaid sect. 206 of the Proce-
dure Act.
Divers persons assembled in a room, entrance money
being paid, to witness a fight between two. persons. The
combatants fought in a ring with gloves, each being attended
by a second, who acted in the same way as the second at
prize fights. The combatants fought for about 40 minute
with gieat ferocity, and severely punished each other. The
police interfered and arrested the defendants, who were
among the spectators.
Upon the trial of an indictment against them for
unlawfully assembling together for the purpose of a prize
fight, the Chairman directed the jury that, if it was a mere
exhibition of skill in sparring, it was not illegal ; but, if
the parties met intending to fight till one gave in from
RIOTS, ETC.
exhaustion or inmrv *„ • , ^^
«■• not, and left it to the ,urvr '*,'"' ^<"'*' '" S^ovea
■ fight or not J"^ •* "^y whether it «,»» aprize
Belli, that the iurv „.,
Orton. U Co^, 226 1 1? T,?'"^ di,«oted._iJ. v
^'-s, forming a body called" «,. "'"''"' "^ "'he' Per-
>ther in the atrae'ta t' towtf f""'' " "^--'^
«* no intention of car^'i„X " I"" r'"' "''« "»«
" by the use „f phvsi!!?*'^ u' '"'•"'" ""'awfally.
:'»«embly would be opSanT' .'"'?»»"'''8 «>at thej
- »«" « way as S "1u"^b^'^""' P^^"^.
commmingof a breach ofpelce oi. t /'^ '*""' '" *>■«
»ng persons. A diatnrbanTof .f ' ^'' °' ^"* «PPo-
crcated by the forcible oppos^i "' f "^^ ^-'"S been
to the assembly and proces !„ ,. u"""^' "^ t^'^om
appellants and ihe JvZnT «'' *"•' '"-^^t^ "f 'he
-o force or violence, it Jatl ""'' *"'' "'^"^^''^^ -^ed
-ffeH by Field and Cave T T ,
'he justices), that the applliatf "f '/"'""^ *^ *«'»"» "f
eould not therefore be convS ^f ''"^'" ^'°' »d
bound over to keep the peZ'" '""^' ''«'»'=o, nor be
cibly opposed by other nerfri"'''"""^*"' be for.
to lead to a breLh omoTe 'e"t -"'--stances likely
persons. ,ioes not render „! !"" P"'' "^ ^""h other
fi-da~;:ice"r''^*^-^ "^ "°'^« -Po-on in it
"Obody was injured. ^'""'"^ '° "« ""t^-g alone and
ii-i!
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40
RIOTS, ETC.
Held, that he could not be indicted for riot, and, on a
case reserved, a conviction on such an indictement was
quashed.— il. v. Corcoran, 26 U. C. G. P. 134.
On the trial of an indictment for riot and unlawful
assembly on the 15th Jan., evidence was given on the part
of the prosecution of the conduct of the prisoners on the
day previous, for the purpose of showing (as was alleged)
that B., in whose office one act of riot was committed, had
reason to be alarmed when the prisoners came to his office.
The prisoner's counsel thereupon claimed the right to show
that they had met on the 14th to attend a school meeting,
and to give evidence of what took place at the school meet-
ing, but the evidence was rejected.
Held, per Allen, C. J., and Fisher and Duff, J, J., Weldon
and Wetmore, J. J., dis., that the evidence was properly
rejected because the conduct of the prisoners on the 14th
could not qualify or explain their conduct on the follow-
ing day.
It is no ground for quashing a conviction for unlawful
assembly on one day that evidence of an unlawful assem-
bly on another day has been improperly received, if the
latter charge was abandoned by the prosecuting counsel at
the close of the case, and there was ample evidence to
sustain the conviction.
If a man knowingly does acts which are unlawful, the
presumption of law is that the mens rea exists ; ignorance
of the law will not excuse him. — The Queen v. Mailloux,
3 Fugs. (N. B.) 493.
CHAPTER 154.
AN ACT EESPECTING PEEJURY.
TTER Majesty, by and with the advice and consent of the Senate
•*-*- and House of Commons of Canada, enacts as follows : —
1. Every one who commits perjury or subornation of perjury is
guilty of a misdemeanor, and liable to a fine in the discretion of the
court and to fourteen years' imprisonment.— 32-33 V., c. 23, s. 1.
2, h ey one who, —
(a.) Having taken any oath, affirmation, declaration or affidavit in
any case in which by any Act or law m force in Canada, or in any
Province of Canada, it is required or authorized that facta, matters or
things be verified, or otherwise assured or ascertained, by or upon the
oath, affirmation, declaration or affidavit of any person, wilfully and
corruptly, upon such oath, affirmation, declaration or affidavit,
deposes, swears to or makes any false statement as to any such fact,
matter or thing, —
(6.) Knowingly, wilfull, ^nd corruptly, upon oath or affirmation,
affirms, declares, or deposes to the truth of any statement for so veri-
fying, assuring or ascertaining any such fact, matter or thing, or pur-
porting 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 t">ing,— such statement, affidavit, affirmation
or declaration being untrue, in the whole or any part thereof, or —
(c.) Knowingly, wilfully and corruptly omits from any such affida-
vit, affirmation or declaration, sworn or made under the provisions of
any law, any matter which, by the provisions of such law, is required
to be stated in such affidavit, affirmation or declaration, —
Is guilty of wilful and corrupt perjury, and liable to be punished
accordingly :
2. Provided, that nothing herein contained shall affect any ca'^e
amounting to perjury at common law, or the case of any offence in
respect of which other or special pro^'ision is made by any Act.— 32-33
F., c. 23, s. 2.
3. Every person who wilfully and corruptly makes any false affi-
davit, affirmation or declaration, out of the Province in which it is
to be used, but within Canada, before any functionary authorized to
1
M
1 J
42
PERJURY.
take the same for the purpose of being used in any Province of Can-
ada, Bhall be deemed guilty of perjury, in like manner as if such false
affidavit, affirmation or declaration iiad been made in the Province in
which it IS used, or intended to be used, before a competent authority.
—33 V.,c. 26, t. I, part.
4. Any judge of any court of record, or any commissioner, before
whom any 'nquiry or trial is held, and which he is by law required or
authorized to hold, may, if 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 proceeding made or taken before him, direct such person to be
prosecuted for such perjury, if there appears to such judge or commis-
sioner a reasonable cause for such prosecution, — and may 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 juris-
diction within which such perjury was committed, or permit such
person to enter into a recognizance, with one or more sufficient sure-
ties, conditioned for the appearance of such person at such next term,
sittings or session, and that he will then surrender and take his trial
and not depart the court without leave, — and may require any persou
such judge or commissioner thinks fit, to enter into a recognizance
conditioned to prosecr.te or give evidence against such person so
directed to be prosecuted as aforesaid. — 32-33 V., c. 23, a. 6.
£». Ail evidence and proof whatsoever, whether given or made orally
or by or in any affidavit, affirmation, declaration, examin&t.'on or
deposition, shall be deemed and taken to be material with reaper* to
the liability of any person to be proceeded against and punislied for
wilful and corrupt perjury or for subornation of perjury.— 32-33 F.,
C' 23, s% 1,
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 " co' '. " of justice, swears
absolutely in a matter of some consequence to the point in
question, whether he be believed or not. 3 Russell, 1.
Hawkins, Vol. 1, p. 429, has the word " course " of
justice, instead of " court" of justice.
Bishop, Cr, Law, Vol. 2, 1015, says a "course" of
justice, and thinks that the word " court " in Russell is a
I-EKJURT.
43
misprint for
verb: perjury ^
" course."
Though Bacon's abridgement,
also has " court." Roscoe, 747, has also
^1
" court" of justice, but says the proceedings are not con-
fined to courts of justice ; and a note by the editor of the
American sixth edition says a " course " of justice is a more
accurate expression than a " court " of justice.
There is no doubt, however, that, according to all the
definitions of this offence, by the common law, the party
must be lawfully sworn, the proceeding in which the oath
is taken must relate to the administration of justice, the
assertion sworn to must be false, the intention to swear
falsely must be wilful, and the falsehood material to the
matter in question. Promissory oaths, such as those taken
by officers for the faithful performance of duties, cannot be
the subject of perjury. — Cr. L. Comra., 5th Report, 51.
False swearing, under a variety of circumstances, has
been declared by numerous Statutes to amount to perjury,
and to be punishable as such. But at common law, false
swearing was very different from perjury. The offence of
perjury, at the comm : law, is of a very peculiar descrip-
tion, say the Cr. L. Oomrs., 5th Rep. 23, and differs in
some of its essential qualities from the crime of false testi-
mony, or false swearing, as defined in all the modern Codes
of Europe. The definition of the word, too, in its popular
acceptation, by no means denotes its legal signification.
Perjury, by the common law, is the assertion of a falsel ood
upon oath in a judicial proceeding, respecting some fact
material to the point to be decided in such proceeding ;
and the characteristic of the offence is not the violation of
the religious obligation of an oath, hut the injury done
to the administration of public justice by false testimony.
Here, in Canada, the above Statute declares to be per-
jury all oaths, &c., taken or subscribed in virtue of any law,
I
■•rfwii
44
PERJURY.
or required or authorized by any such law ; and voluntary
and extra-judicial oaths being prohibited by c. 141,
Eev. Stat., it may perhaps be said that, with us, every false
oath, knowingly, wilfuUy and corruptly taken amounts
to perjury, and is punishable as such. The interpretation
Act, c. 1, Rev. Stat., enacts moreover that the woi-d
" oath " includes a solemn affirmation whenever the context
applies to any person and case by whom and in which a
solemn affirmation may be made instead of an oath, and in
like cases the word sworn shall include the word ajffirmed
or declared.
Sect. 5 supra is an important alteration of the law on
perjury as it stands in England. As stated before, by the
Common Law, to constitute perjury, the false swearing
must be, besides the other requisites, in a matter mate-
rial to the point in question. The above section may be
said to have abolished this necessary ingredient of per-
jury.
See E. V. Eoss, I. M. L. E. Q. B., 227.
See Stephen's Digest of Criminal Law, XXXIIL
This clause 5 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.
1st. There must he a lawful oath. R. v. Gibson, 7 R. L,
574; R. V. Martin, 21 L. C. J., 156, 7 R. L. 772; R. v.
Lloyd, 16 Cox, 235, 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 primd facie to show the osten-
sible capacity in which the judge or officer acted when the
PERJURY.
46
oath was taken, the presumption may be rebutted by
other evidence, and the defendant, if he succeed, will be
entitled to an acquittal— 2 Chitty, 304; Archbold, 815.
— i2. V. RoheH8, 14 Cox, 101 ; R. v. Hughes, 14 Cox, 284.
2nd.— r/ie oath must he 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.— 2 Chitty, 303. Bishop's first book of the
law, 117. 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.— ii. v. Pedley, 1 Leach, 327.
3rd. The false oath rnvst he knowingly, wilfully, 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, wilfid
and corrupt.— 2 Bishop, Cr. L. 1043, et 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
prejudice it was intended were, in the event, any way
ag«?rieved by it or not ; insomuch as this is not a prosecu-
tion grounded on the damage of the party but on the abuse
of public justice.- 3 Burn's Justice, 1227.
Indictment for Perjury.— The Jurors for Our Lady the
ill M%
46
PERJURY.
Queen, upon their oath present, that heretofore, to wit, at
the (aedzes) holden for the county (or distHct) of
on the day of in the year of Our Lord, one
thousand before (one of the judges of Our
Lady the Queen), a certain issue between one E. F. and
one J. H. in a certain action of covenant was tried, upon
which trial A. B. appeared as a witness for and on behalf
. of the said E. F., and was then and there duly sworn before
the said and did then and there, upon his oath
aforesaid, falsely, wilfully and corruptly depcse and swear
in substance and to the effect following, " that he saw the
said 0. n. duly execute the deed on which the said action
was brought" whereas, in truth, the said A. B. did not see
the said G. H. execute the said deed, and the said deed
was not executed by the said G. H., and the said A. B.
did thereby commit wilful and corrupt perjury.
Sect. 107 of the Procedure Act enacts as follows, con-
, ceming the form of indictment in perjury : " In any indict-
ment for perjury, or for unlawfully, illegally, falsely,
fraudulently, deceitfully, maliciously or corruptly takina,
making, signing or subscribing any oath, affirmation,
declaration, affidavit, deposition, bill, answer, notice, certi-
ficate 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, affirmation,
declaration, affidavit, deposition, bill, answer, notice, certi-
ficate, or other writing was taken, made, signed or sub-
scribed, without setting forth the bill, answer, information,
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 offence was committed."
No indictment for perjury or subornation of perjury can
PEBJUBY.
i^
be preferred, unless one or other of the preliminary stepa
required by sec. 140 of the Procedure Act has been taken
Perjury is not triable at Quarter Session8.-2 HawHna
c. 8, 8 38 ; R. v. Sainton, 2 Str. 1088; M, v. YarHvgton
IJ^alk. 406 ; Dickinson's, Quarter Sessions, 156 • i? v
Iliggms, 2 East. 18; E. v. Currie, 31 U. C. Q B 582
The indictment must allege that the defendant swore
falsely, wilfully and corruptly ; where the word felon,
lomly was inserted instead of falsely, the indictment,
though It alleged that the defendant swore wilfully
corruptly and maliciously, was held bad in substance, and
not^ amendable.-i2. v. Oxley, 3 C. d: K. 317; Archbold,
If the same person swears contrary at different times.
It should be averred on wh-ch occasion he swore wilfully
falsely and corruptly.-ii. v. Harris, b B. & Aid 926
As to assignments of perjury, the indictment must
assign positively the manner in which the matter sworn
to is false. A general averment that the defendant falsely
swore, etc.. etc.. upon the whole matter is not sufficient ;
the indictment must proceed by special averment to
negative that which 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 neces-
sary ; 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 be nothing more than the oath
of one man against another, and the scale of evidence being
4S
PKKJURY.
thus in one sense balanced, it is considered that tlic jury
cannot safely convict. So far the rulo is founded on sub-
stantial justice. But it is not precisely accurate to say that
the corroborative circumstances must bo tantamount to
another witness ; for they need not bo. such as that proof of
them, standing alone, would justify a conviction, in a case
where the testimony of a single witness would guffico for
that purpose. Thus, a letter written by the defendant,
contradicting his statement on oath, will render it unneces-
sary to call a second witness. Stilf, evidence confirma-
tory of the sini;;le accusing witness, in some slight particu-
lars only, will not be sufficient to warrant a conviction,
but it must Po least be strongly corroborative of hia
testimony, or to use the quaint but energetic lang-age of
Chief Justice Parker, " a strong and clear evidence, and
more numerous than the evidence given for the defen-
dant," 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 neces-
sary ; and that too, although all the perjuries assigned
were committed at one time and place. For instance, if a
person, on putting in his schedule in the Bankruptcy
Court, or on other 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 not been paid, a single witness with respect to
each debt will not, it seems, suffice, though it may be very
difficult to obtain any fuller evidence. The principle that
one witness, with corroborating circumstances, is sufficient
to establish the charge of perjury, leads to the conclusion,
that without any witness directly to disprove what is
PERJURT,
49
sworn rcumstftnces alone, when they exist in a documen-
tary 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 busines,
01 lite. In accordance with these views, it has been held
in America, that a man may be convicted of perjury on
documentary and circumstantial evidence alone,Jirst, 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; secondiy, where
the ma ter sworn to is contradicted by a public record,
proved to have been well known to the prisoner when he
took the oath ; and thirdly, where the party is charged
with aking an oath contrary to what he must necessarily
have known to be true, the falsehood being shown by his
own letter 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 m them.
If the evidence adduced in proof of the crime of per-
jury consists of two opposing statements by the prig,
oner, and nothing more, he cannot be convicted. For
If one only was delivered under oath, it must be pre-'
sumed, from the solemnity of the sanction, that the decla-
ration was the truth, and the other an e.ror or a false-
hood; though, the latter, being inconsistent with what
he has sworn may form important evidence with other
circumstances against him. And if both the contradictory
statements were delivered under oath, there is still nothing
to show which of them is false, when no other evidence
of the falsity is given. If, indeed, it can be shown that
before making the statement on which perjury is assigned
■inn
60
PERJUKY.
the accused had been tampered with, or if any other
circumstances icud to prove that the statement offered
as evidence against the prisoner was true, a legal con-
viction may be obtained, and provided the nature of the
statement was such, that oue of them must have been false
to the prisoner'a knowledge, slight corroborative evidence
would probably be deemed sufiBicient. But it does not
necessarily follow that because a man has given contra-
dictory accounts of a transaction on two occasions he has
therefore committed perjury. For cases may well be con-
ceived in which a person might very honestly swear to a
particular fact, fiom the best of his recollection and belief,
and might afterwards from other circumstances be con-
vinced that he was wrong, and swear to the reverse, with-
out meaning to swear falsely either time. Moreover, when
a man merely swears to the best of his memory nnrl belief,
it 01 course retiuires very strong proof to show thut he
is wilfully nerjured. The rule requiring something more
than the tep*anony 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 proceedings in it, the administer-
ing the oath, the evidence given by the prisoner, and, in
short, all the facts, exclusive of the falsehood of the state-
ment, which must be proved at the trial, may be established
by any evidence that would be sufl&cient, were the pris-
oner charged with any other offence. For instance, if the
false swearing be that two persons were together at a
certain time, and the assignment of j^arjury be that they
were not together at that time, evidence by one witness
that at the time named the one person waa at London,
and by another witness that at the same time the other
person waa in York, will be sufficient proof of the as-
PERJURY.
51
signment of perjury.-2 Taylor on Evidence, par. 876,
et 8€Q,
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 giva
evidence as to what the defendant swore at the Quarter
Sessions.— i?. v. Gazard, 8 C. <fc P. 595
But this ruling is criticized by Gr;aves, note n, 3
Euss 86. and Byles, J., i„ R. v. Harvey, 8 Cox 99
said that though the judges of Superior Courts ought noi
to be caUed 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.-
3 Burns Justice, 1243.
In R. V. Hook, Dears & B. 606, will be found an inter-
estmg discussion on the evidence necessary upon an indict
ment for perjury.
By sect. 16 of the Procedure Act, every person accused
of perjury may be dealt with, indicted, tried and punished
m the district, county or place in which the offence is
commit^d, or m which he is apprehended or is in custody.
The Impenal Statute, corresponding to sect. 4 of our
revised Perjury Act, authorizes the judge to commit,
unlesssnoh^rson shall enter into a recognizance and give
sureties. Our statute gives power to commit or to permit
such person to enter into a recognizance and give sureties
Greaves remarks on this clause : - The crime of perjury
has become so prevalent of bte years, and so many c^ses
of impunity have arisen, either for want of prosecution.
Ox for defective prosecution, that this and the following
sections were introduced to check a crime which so vitally
affects the interests of the community.
"It was considered that by giving to every Court and
62
PERJURE.
person administering oaths a power to order a prosecution
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 tho 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 large quantity of business is transacted
before a single justice or one metropolitan or stipendiary
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,
etc., were made before one person, and used before another
judge or Court, etc., and it there appear^id that perjury
had been committed, such judge or Court might commit.
The clause has been so altered, that the evidence must be
given, or the affidavit, etc., made before the judge, etc.,
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 bo ordered to be prosecuted 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 perjury committed, yet there is no authority to order
a prosecution under this clause. So, again, a man is com-
mitted for trial on the evidence of a witness which is
proved on the trial to be fake beyond all doubt, yet
PERJuay.
53
if such witness be not examined, and do not repeat the
same evidence on the trial, the Court cannot order him
to be prosecuted.
" 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 ' rea-
sonable cause for such prosecution.' Now it must ever be
remembered that two witnesses, or one witness and some-
thing that will supply the place of a second witness, are
absolutely essential to & conviction for perjury. The Court,
therefore, should not order a prosecution, unless it sees
that such proof is capable of being adduced at the trial;
and as the Court has the 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 indictment, who possibly may be
wholly ignorant otherwise of the precise ground on which
the prosecution is ordered. It is very advisable also that
where the perjury is committed 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 satisfac-
tory 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
writing of the evidence taken down at the time.
"Again, it ought to be clear, beyond all reasonable
doubt, that perjury has been willfully committed before
54
PERJURT.
a prosecution is ordered." — Lord Campbell's Acts, by
Greaves, 22.
See sect. 225 of the Procedure Act as to proof of trial for
felony or misdemeanor in which perjury was committed.
It is to be observed that this section is merely remedial,
and will not prevent a regular record from being still
admissible in evidence, and care must be taken to have
such record drawn up in any case where the particular
averments in the former indictment may be essential. —
Lord Campbell's Acts, by Greaves, 27.
SUBORNATION OF PERJURY.
Sec. 108 and second schedule of Procedure Act, as to
form of indictment. — 14-15 V., c. 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. 5, ante, declaring all evidence whatever material
with respect to perjury, also applies to subornation of
perjury.
Sect. 225 of the Procedure Act, ante, as to certificate of
indictment and trial, applies also to subornation of per-
jury.
Sect. 16 of the Procedure Act, allowing perjury to be
tried where the offender is appi'ehended 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 incited 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,
PERJUBY.
55
yet it is certain that he is liable to hi punished, not only
by fine, but also by infamous corporal punishment. 1
Hawkins, loc, dt.
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 Riiaa. 85.
And, upon an indictment for subornation of perjury, if
it appears, at the trial, that perjury was not actually com-
mitted, 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.— Sec. 183, Procedure
Act.
In support of an indictment for subornation the record
of the witness's conviction for perjury is no evidence against
the suborners^ but the offence of the perjured witness must
be again regularly proved. Although several persons can-
not be joined in an indictment for perjury, yet for subor-
nation of perjury they may.— 3 Burn's Justice^ 1246.
Indictment, same as indictment for perjury to the end,
and then proceed : — And the Jurors aforesaid upon their
oath aforesaid further present, that before the committing
of the said offence, by the said A. B., to wit, on the
day of at C. D. unlawfully, wilfully and
corruptly did cause and procure the said A. B. to do and
commit the said offence in the manner and form aforesaid.
No indictment can be preferred for subornation of per-
jury unless one or other of the preliminary steps required
by sect. 140 of the Procedure Act has been taken.
As perjury, see ante, subornation of perjury is not tria-
ble at Quarter Sessions.
Indictment quashed (for perjury) none of the formalities
required by sec. 140 of the Procedure Act having been
complied with.— i2. v. Granger, 7 L. N. 247.
66
PERJURY.
A person accused of perjury cannot have accomplices,
find is alone responsible for the crime of which he is
accused.— ii. v. Pelletier, 1 R. L. 565.
Including two charges of perjury in one indictment
Would not be ground for quashing it. An indictment that
follows the form given by the Statute is sufficient.— iJ. v.
Bain, Hamsay's App. Cos. 191.
The non-production by the prosecution, on a trial for
perjury, of the plea which was filed in the civil suit
wherein the defendant is alleged to have given false testi-
mony, is not material when the assignment of perjury has
no reference to the pleading, but the defendant may, if
he wishes, in case the plea is not produced, prove its
contents by secondary evidence. It is not essential to
prove that the facts sworn to by the defendant, as alleged
in the indictment, were material to the issue in the cause
in which the defendant was examined.— i2. v Boss 1 M
I. M. Q. B. 227 ; 28 L. a J. 261.
I
CHAPTER 155.
AN ACT EESPECTING ESCAPKS AND RESCUES
prison, if such offenM Z,. „!,, """'"" »' '»"«" «nj breacli of
from one penitentiarv tn J ^r'^'^P^ thereto, or when being conveyed
or 0.hers;r™r7.rp^^rir.lr 'tV"^'°''?''"^°«°''''«""'^
<V«» work, either , hi„ or t '' ^ .T '° " "'"■''■ "' P"""* '<> °r
onment.-46 V., i Zlfs^f^^pl^^' *"'' *^ °°' ^^"'« "»P"«-
therein, or Ihile being conveyedTron n ""' "' "'"^ ''"P"^^"^*
or while passing to !r f'^work a or' P^"'^^"*'*^^ '« -«»her,
and every one who hv '. ,'^°'^'* *^ O' "ear any penitentiary,-
disguiee/o^ohertise^ 'f''"^ "'"'' ^"^'« °^ instruments of
any escape or aSn't Z ^ """"'' *"^" *"y «"«J^ ?"««"«' in
to'fiveyeLiS'L::z^:rr:;:/r:'::^5^^ ^''^"^' ^-^ "^^^«
^it
jii
58
ESCAPES AND RESCUES.
7. Every one who, having the custody of any such prisoner as
aforesaid, or being employed by the person having such custody, aa
a keeper, turnkey, guard or assistant, careles^xty allows any such
prisoner to escape, is guilty of a misdenneanor, and liable to fine or
imprisonment, or to both, in the discretion of the court ; and every
such person as aforesaid, who knowingly and wilfully allows any
such convict to e>^cape, is guilty of felony, and liable to five years'
imprisonment. — 46 F., c. 37, a- 58.
8> Every one who, knowingly and unlawfully, under color of any
pretended authority, directs or procures the discharge of any prisoner
not entitled to be so disch&rged, is guilty of mii^demeanor, and liable
to imprisonment for any term less than two years, and the person so
discharged shall be held to have escaped. — 32-33 V., c 29, s 85.
9. Every one who, being sentenced to be detained in any reforma-
tory prison or reformatory or industrial school, escapes therefrom, may
at any time before the expiration of his term of detention, be appre-
hended without warrant, and brcught before any justice of the peace or
magistrate, who, on proof of his identity, shall remand him to such
prison or school there to serve the remainder of his original .sentence,
with such additional term, not exceeding one year, as to such justice
or magistrate seems proper. — 32-33 F., c. 34| «. 7 ; 33 V., c, 32, «. 5 j
43 v., c. 41, *. 4 ; 47 V., c. 45, *. 6.
10. Every one who, —
(a.) Knowingly assists, directly, or indirectly, any offender detained
in a reformatory prison or reformatory or industrial school, to escape
from such prison or school, —
(6.) Directly or indirectly induces such an offender to escape from
such prison or school, —
(c.) Knowingly harbors, conceals or prevents from returning to the
prison or M^hool, or assists in harboring, concealing or preventing
from returning to the prison or school, any offender who has escaped
from such prison or school, —
Shall be liable, on summary conviction before two justices of the
peace, to a penalty not exceeding eighty dollars, or to imprisonment
with or without hard labor for any term not exceeding two months.
—32-33 v., c. 34, *. 8.
11. Every one who escapes from imprisonment shall, on being
retaken, undergo, in the prison he escaped from, the remainder of his
term unexpired at the time of his escape, in addition to the punish-
ment which is awarded for such escape ; and any imprisonment
ESCAPES AND HE8CUE3. 59
;.hen a m,sdemean„r; what is a prison-breaking, and when
s ! M "^ " ^■""edemeanor ; what is a rescue, and when
M It a felony or a misdemeanor ?
What u o« escape.— An escape is where one who is
"tested gams his liberty without force before he is ddte -
on Si ,"r°"r °['""- '^' «"""^ ^"""'P"' of 'he law
on Ihe subject w that as all persons are bound to submit
be justified by it, those who, declining to undergo a lesal
■mprisonment when a^sted on criminal p^lss, f^
themselves from it by any artifice, and elude L v g W
misdemeanor. It ,8 also criminal in a prisoner to esca™
f^m lawful confinement, though no force'orartific^^b^ uZ
oi"t o r ^- '""".l"* ^'"^- T""'. if « Pri-ner go
opened bv T" ""* ""^ *'™""°°' ">« -l""'' "^'^
opened by the consent or negligence of the gaoler, or if he
eaoape in any other manner, without using any kind of
force or violence, he will be guilty of a miiemeanor?^
v.2f^)ent. 11 Cox, 64. The officer by whose default a
pnsoner gains his liberty before he is legally d wl^d is
a^so guilty of the o«en«, of escape, diviL'in lat The
in two offences, a voluntary escape or a negligent mape
aixest m a criminal matter.
tody of a pnsoner. knowingly and intentionaUy gives him
his liberty, or by connivance sufe,^ him to go f^ tithe"
to save him from his trial or punishment, or^ aUow him
a tempomiy litey, on hispromising to return, and, in fa ^
60
E80APES AND RESCUES.
80 returning. R. v. Shuttlework, 22 U. C. Q. B. 372.
Though, some of the books go to say that, in this last case,
the offence would amount to a negligent escape only.
A negligent escape is where the party arrested or im-
prisoned escapes against the will of him that arrests or
has him in charge, and is not freshly pursued and taken
again before he has been lost sight of. And in this case,
the law presumes negligence in the officer, till evident proof
on his part to the contrary. The sheriff is as much liable
to answer for an escape suffered by his officers, as if he had
actually suffered it himself. A justice of the peace who
bails a person not bailable by law is guilty of a negligent
escape, and the person so discharged is held to have
escaped.
When is an escape a felony, and when a misdemeanor,
— An escape by a prisoner himself is no more than a mis-
demeanor, whatever be the crime for which he is impris-
oned. Of course, this does not apply to prison-breaking, but
simply to the case of a prisoner running away from the
officer or the prison without force or violence. This offence
falls under s. 2, c. 155, ante, and is punishable by impris-
onment for any period less than two years. An officer
guilty of a voluntary escape is involved in the guilt of the
same crime of which the prisoner is guilty, and subject to
the same punishment, whether the person escaping were
actually committed to some gaol, or under an arrest only,
and not committed, and whether the offence be treason,
felony or misdemeanor, so that for instance, if a gaoler
voluntarily allows a prisoner committed for larceny to
escape he is guilty of a felonious escape, and punishable as
for larceny; whilst if such prisoner so voluntarily by him
allowed to escape was committed for obtaining money by
false pretences, the gaoler is then guilty of a misdemeanor,
ESCAPES AND RESCUES.
61
punishable under the cumtnou law by fine or imprisonment,
or both as c. 155, ante (except s. 7, for certain specified
escapes), does not apply to escape as an offence by an
officer or gaoler, either when a felony or a misdemeanor.
Greaves note r, 1 Buss. 587, says that the gaoler might
also, in felonies, be tried as an accessory after the fact for
voluntary escape. A negligent escape is always a mis-
demeanor, and is punishable, at common law. by fine or
imprisonment or both.
What is a prison-breaking, and when is it a felony
or a misdemeanor. The offence of prison-breach is a break-
ing and gomg out of prison by force by one lawfully con-
fined therem. Any prisoner who frees himself from lawful
imprisonment by what the law calls a breaking, commits
thereby a felony or a misdemeanor, according as the
^use of his imprisonment was of one grade or the other
M.v.Hamell, M. <k R 458. But a mere breaking is not
sufficient to constitute this offence : the prisoner must
have escaped. The breaking of the prison must be an
actual breaking, and not such force and violence only as
may be implied by construction of law. Any place where
a prisoner is lawfully detained is a prison quoad this
offence, so a private house is a prison if the prisoner is in
custody therein. If the pri.on-breaking is by a person
kwfully committed for a misdemeanor, it is, as remarked
before, a misdemeanor, but if the breaking is by a person
committed for felony, then his offence amounts to felony
A prisoner was indicted for breaking out from the lock-
up being then in lawful custody for felony. It appeared
that the pnsoner and another man had been given into the
custody of a police officer, without warrant, on a charge of
stealing a watch from the person. They were taken before
a magistrate. No evidence was taken upon oath, but the
62
ESCAPES AND RESOURS.
prisoner was romandod for three days. The prisoner broke
out of the lock-up and returned to hia homo. He appeared
before the magistrate on the day to which the hearing of
the charge had been adjourned, and on the investigation
of the charge it wad dismissed by the magistrate, who
stated that in his opinion it was a lark, and no jury would
convict. The prisoner contended that the charge having
been dismissed by the magistrate, he could not be con-
victed of prison-breaking, citing 1 Hale, 610, 611, that if
a man be subsequently indicted for the original offence
and a( quitted, such acquittal would be a sufficient defence
to an indictment for breach of prison. But Martin, B.,
held that a dismissal by the magistrate was not tanti-
mount to an acquittal upon an indictment, and that it
simply amounted to this, that the justices did not think
it advisable to proceed with the charge, but it was still
open to them to hear a fresh charge against him. The
prisoner was found guilty. — R. v. Waters, 12 Cox, 390.
What is a rescue, and when is it a felony or a misde-
meanor. — Kescue is the forcibly and knowingly freeing
another from an arrest or imprisonment. A rescue in the
case of one charged with felony is felony in the rescuer,
and a misdemeanor, if the jjrisoner is charged with a mis-
demeanor. B. V. Harwell, R. <fc R., 458. But though upon
the principle that wherever the arrest of a felon is lawful
the rescue of him is a felony, it will not be material whe-
ther the party arrested for felony, or suspicion of felony, be
in the custody of a private person or of an officer; yet, if he
be in the custody of a private person, it seems that the
rescuer should be shown to have kn^ : ieJge of the party
being under aiTest Tor felony. The 16 ' '*.» 11, .31, ma •:;.&
it a felony to aid or assist a prisoner to attempt to make
his escape from any gaol, although no escape is actually
B80APE8 AND RESCUES. g^
«iado, if such prisoner is corn.r ;tted for a fl
i» tho warrant of co.nmifr^ "^'' *f » ^^W, expressed
«um amounting to one h„,l ^ """l""""'"'''-. <>■• for a
to convoy any diseuiso nr .„ . misdomoonor,
*« facilitate the Z™ "''"«""»="'» into any prison
'hen a felony oH^W ''"'"""'• ^ ''»«>'^' «'"'«;
onder the above let. """''""^'""' « ■><>* puniahable
«7'r/iri>'c Ble"*,^ ^^P^'n-s Comm. 227, rf
'• P- °1 , ■i Bishop, Cr. I. loee.
^^U"<ie.3ec.6oftheAc,,eoie.v.i.«,^l^.^^^
By sec. m'oflll^ZVt """"• ''''
for any of these offencr t^ d f 7'° '" ^^^'^'"^^"*
guilt, of the atten^pUolLt the o"^^^ T "^ '""^
evidence warrants it. ^'""^ '^^''g^'^' ^^ the
|i*
S' II
CHAPTER 156.
AN ACT RESPECTINtr OFFENCES AGAINST
RELIGION.
TTER Majesty, hy and with the advice and consent of the Senate
-«--'- and House of Commons of Canada, enacts as follows :
1. Every one who, by threats or force, unlawfully obstructs or
prevent?, or endeavors to obstruct or prevent, any clergyman or other
minister in or from celebrating divine service, or otherwiee officiating
in any church, chapel, meeting-house, school-house or other place
used for divine worship, or in or from the performance of his duty in
the lawful burial of the dead, in any church-yard or other burial
place, or strikes or offers any violence to, or upon any civil process, or
under the pretence of executing any civil process, arrests any clergy-
man or other minister who is engaged in or, to the knowledge of the
offender, is about to engage in any of the rites or duties in this section
mentioned, 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 liable to imprisonment for any term less ihan
two years.— 32-33 F., c 20, s. 36. 24-25 V., c. 100, s. 36, Imp.
2. Every one who wilfully disturbs, interrupts or disquiets any
assemblage of persons met for religious worship, or for any moral,
social or benevolent purpose, by profane discourse, by rude or indecent
behavior, or by making a noise, either within the place of such
meeting or so near it as to disturb the order or solemnity of the meet-
ing, is guilty of a misdemeanor and liable, on summary conviction, to
a penalty not exceeding twenty dollars and costs, and, in default of
payment, to imprisonment for a term not exceeding one month,— and
may be arrested on view by any peace officer present at such meeting,
or by any other person present, verbally authorized thereto by any
justice oC the peace present thereat, and detained until he can be
brought before a justice of the peace.— 32-33 V., c. 20, .•. 37.
The word school-house in the first section is not in the
English Act, and the words itsecZ /or divine worship are
substituted for of divine worship.
Indictment for obstructing a clergyman in the dis-
"^''o.sAa^,,,,^^^^^^^
"^mo/hisdnty.... „„, , ®^
then be,.g the vicar of the 211, -L- ^- " "'«Wman
ofthe said parish (or in the ^rf! '"'' P™'' •''"Wch
of B":tt:/-\^^ " "^~~t::r
"■' f stated m the indictment • tl,., .1 ""« I«™'«
foroe obstructed and preventeTwl; f ""' ''''''«»^'" by
wasgoiog toperfo™ divi;;e Lwl h T""'" "' »'''"«'»«
then weU knowing that t L J^d j „ ^'^"^^Z-^ian.
""-J. was so going ^ perfo^"^"; ^^ ''!« " Aigyman,
against the form ... T . . " ''"'"=« «» aforesaid
"« imperial Stnti.*™
c^-e are S^e : ^t^^ ^7^^, '^ *" ^<""^
lS-16 K c. 36; 23.24 V o's!' ^^ ^' "' ^««- »• 12;
^ «^- ^- ". C. a Canad?:;r2V:7c%'^.'r^^ »
' »• «>, '^. b. L. Canada.
mm.
H
CHAPTER 157.
AN ACT EESPECTING OFFENCES AGAINST PUBLIC
MORALS AND PUBLIC CONVENIENCE.
ER Majesty, by and with the advice and coD'tent of the Senate
and House of Commons of Canada, enacts as follows : —
1. Every one who commits the crime of buggery, either with a
human being or with any other living creature, isguiity of felony, and
liable to imprisonment for life. 32-33 V., c. 20, s. 63. 24-25 F., c. 100,
«. 61, Imp.
Indictment. — in and upon one J. N. feloniously
did make an assault, and then feloniously, wickedly, and
against the order of nature had a venereal affair with the
said J. N., and then feloniously carnally knew him, the
said J. N., and then feloniously, wickedly, and against the
order of nature, with the said J. N., did commit and per-
petrate that detestable and abominable crime of buggery
(not to be named among Christians); against the form
— Archhold, 716.
Sodomy or Buggery is a detestable and abominable sin,
amongst Christians not to be named, 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 agentonly. — 1 Hale, 670.
If by a boy under fourteen on a man over fourteen, it ia
felony in the patient only. — Archbold, 752.
The evidence is the same as in rape.with two exceptions :
first, that it is not necessary to prove the offence to have
been committed against the consent of the person upon
whom it was perpetrated; and secondly, both agent and
PUBLIC MORALS, ETC. g^
In R. V. Jacobs, R. and R qqi a
the prisoner had prevailed upon f Li d Th'"'''?' "'^'
ye-3 of age, u, go with him fna Lt "W th^ °/ T
and there, forced the bnv', „„ .^ '^ ' """ ''^' ">«"
and put his private part^il^n T" "'* ""^ S-ge™,
in hia mouth tto i,fl ^ 1 ! """^^ ""'"*''■ """len-itod
i"<«otab.e; also by a man witl™: J^ %"r\r
oontir;:r -• ~ -e^^ut-it
»a?:ir^rr:ttp:trr;:^:---
Sect. 183 of the Procedure Act '^"''•-
evidence war.nt, it.C iTSelTrr"' ''""«
Indutment for bestiality.- . „;.,, „ , .
(any animal) feloniously 4l>ediv 'nL ''"'^'" ""'"
of nature had a venerp»l l'J'.""'^y '"'^ against the order
commit and nemptr.t/.w 7 ' '"'"'^ "'«'<"">' did
crime of bj.! X7 Jt **'?"' *■"* "'«'"""'""«
against the ftrm .; '^""'^ """"^ ''"''™"'"'») ^
cently assaults any other male .«, S I ' ^""S ^ male, i„de
68
PUBLIC MORALS, ETC.
mi: iyj
Indictment — in and upon one J. N. did make an
assault, and him, the aaid J, N. did then beat, wound and
ill-treat, with intent that detestable and abominable crime
called buggery with the said J. N. feloniously, wickedly,
diabolically, and against the order of nature to commit and
perpetrate against the form, &c., &c., &c. — Archhold, 718.
If the indictment be for an indecent assault, one or
other of the preliminary steps required by sect. 140 of the
Procedure Act must be taken.
Where there is a consent there cannot be an assault in
point of law.— R. v. Martin, 2 Moo. C. C. 123. A man
induced two boys above the age of fourteen years to go
with him in the evening to an out of the way place, where
they mutually indulged in indecent practices on each
others' persons : Held, on a case reserved, that under these
circumstances, a conviction for an indecent assault could
not be upheld. — B. v. Wollaston, 12 Cox, 180.
But the definition of an assault that the act must be
against the will of the patient implies the possession of
an active will on his part, and, therefore, mere submission
by a boy eight years old to an indecent assault and immo-
ral practices upon his person, 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. — M. v.
Lock, 12 Cox, 244.
The prisoner was indicted for an indecent assault upon
a boy of about fourteen years of age. The boy had
consented. Held, on the authority of R. v. Wollaston,
12 Vox, 180, that the charge was not maintainable,
R. V. Laprise, 3 L. N. 139.
3. Every one who^
(a.) Seduces and has illicit connection with any girl of previously
PUBLIC MORALS, ETC.
69
chaste character, or whoattempte to have illicit connection with any
girl of previously chaste character, being in either case of or above
the age of twelve years and under the age of sixteen years, or-
(6.) Dnlawfuliy and carnally knows, or attempts to have unlawful
carna knowledge of any female idiot or imbecile or insane woman
or girl, under circumstances which do not amount to rape, but which
prove that the oflR ..der knew at the time of the oflfence, that the
woman or girl was an idiot or imbecile or insane,—
?o^^"*^ f." misdemeanor, and liable to two years' imprisonment.
— 4y K., c. 62, s. 1 and s. 8, peat, 60-51 F., c. 48.
4. Every one above the age of twenty-one years who, under pro-
mise of marriage, seduces and has illicit connection with any
unmarried female of previously chasl* character and under twentv-
one years of age, is guilty of a misdemeanor, and liable to imprison,
ment for a term not exceeding two years.— 50-51 'F., c. 48, *. 2,
5. Every one who, being the owner and occupier of any premises.
or having, or acting, or assisting in the management or control thereof,
induces, or knowingly suffers, any girl of such age as in this sectioil
mentioned, to resort to or be in or upon such premises for the pur-
pose of being unlawfully and carnally known by any man, whether
geuera^r- "" '' '"^"'''^ ^ ^' ""'^^ ^""^ particular man or
(a.) If Buchgirl'is under theageoftwelveyears,isguiltyoffelony.
and liable to ten years' imprisonment,- ' ' ^ ' '^''^^J^'
(6.) If such girl is of or above the age of twelve and under the age
of sixteen years, u guilty of a misdemeanor, and liable to two years'
imprisonment: / »»o
Provided, that it shall be a sufficient defence to any charge under
this section it it is made to appear to ih, court or jury before whom
the charge ,s brought, that the person so charged had reasonable
cause to bel^ve that the girl was of or above the age of sixteen years.
— 4y v., c. 62, s. 4 and a. 8, part. 48^49 F., c. 69, Imp.
6. No person shall be convicted of any offence under the three
see ons of this Act next preceding upoa the evidence of one witness,
unless such witness is corroborated in some material particular b^
evidence implicating the accused :
2, In every case arising under the said sections, the defendant shall
nW?' Tl""'"''' '" ^'' "^° ^^'*^' "P«» any charge or com.
plaint against him ; j ^ ^lu
3. No prosecution under the said sections shall be commenced after
70
PUBLIC MORALS, ETC.
oV
the expiration of one year from the time when the offence was com-
niitted.-49 T., c. 62, as. 6, 6 and 7, parU.
A mother may be convicted under sec. 6, of knowingly
suffering her daughter aged 14 to be in or upon premises
for the purpose of prostitution, even if the premises are
their home,~i2. v. Webster, 15 Cox, 775.
Under sec. 5, the reasonable belief that the eirl was over
sixteen is a question for the jury.— jR. v. Pafcer, 16 Cox,
The jury may find the defendant guilty of the attempt
to commit the offence charged: s. 183, Proc. Act M y
Adams 50 J. P. 136. > ■ -
(«.) Procures any woman or girl, under the age of twenty-one
years, to have .Ihc.t carnal connection with any man other thanlhl
procurer, or — " "^
(6.) Inveigles or entices any such woman or girl to a house of ill-
fame or a8S.g„ation, for ihe purpose of illicit intercourse or prostitu-
tion, or who knowingly conceals in such house any such woman or
girl so inveigled or enticed,—
^^Is guilty of a misdemeanor, and is liable to two years' imprison-
JiZ^^"""^^"^l" "^'^^ ^ ^"*^" '^''^ any such woman or
girl has been inveigled or enticed to a house of ill-fame or assigna-
Tut't : ''"'' ""P^" *^°™P'*'"* '^'"^^ being made under
oath by the parent, master or guardian of such woman or girl, or in
guardian in the province in which the offence is alleged to have been
committed, by any othev person, to any justice of the peace, or tH
judge of any court autbonzed to issue warrants in cases of alleged
offences agamst the criminal law. such justice of the peace or judge
o the court may issue a warrant to enter, by day or night, such Loufe
of ll-fame or assignation, and to search for such woman or girl, and
«lie ,s, before such justice or the peace or judge of the crurt. who
may, on examination, order her to be deliveretl to her parent, master
org.ardian or to t. discharged, as law and justice require.-48-49
v., c. 82, «. 1. 24-25 F., c. 100, s. 49, Imp.
PUBLIC MORALS, ETC.
71
Indictment Thnf re L^. ^ , '
in the year of our I„W ^^ t ff'; *"' ^^ "' J""",
representiug unto one A "B^h f-^'y P^'ending and
r:^MTBratr&^---^)^
then a woman /JliH unlrtL f P^"""™'' "^"^
to wit, of the age7 'w ^' «f 'wenty^neyear,.
.an?r rpr::^rwr:r;r ?^ t r ^■
that by means of thesL fairprell '^'"''
the defendant induced the woC Tgi" f r "'*"""'
connection witi the man named in ,f.'- !^^" ™"*'
that ehe was then under t^e^Jore O^t^l' T'
indictment under th;„ ^f L '™ '"*' °f »"
victedofanattemn?? ' */ ^"""^' ^^^ ^ o"--
183 of the pS^ 1~ ''' °''^''"^' "■"'" '"» -=•
hal"everat\l" '^J /'' """'• f*' '"^'«'-»'
the false pretenL' '^""' ""* ""'^S^ ^1^' ''^«'
»• All persons who,^
o»Un,Xme«f ™""' ""•"' "'"••i-'.ini.g «.e,„...,e., live with.
highway, any i^S^^.^ ^^^^^ '» *ny street, road, public place or
their persons,- ^^J^'bition, or openly or indecently expose
«'~'orl,!„S^^^^^^^^ by a pries,
residing i„ the municipality whfreu/e a . '?"'' ""^ '^' ^^^''
or she is a deserving oLct of chL / ?■"" ^""° '''^^^' *''«»* he
g ogect of chanty, wander about and beg, or go
72
PUBLIC MOEALS, ETC.
about from door to door, or place themselves in anjr street, highway,
passage or public pla- e to beg or r eive aims,—
(e.) Loiter on any street or highway, and obstrnct passengers by
standing across the footpaths or by using insulting language, or in
any other way, —
(/.) Cause a disturbance in any street or highway by screaming,
swearing or singing, or by being drunk, or by impeding or incommo-
ding peaceable passengers, —
(g.) By discharging firearnis, or by riotous or disorderly conduct
in a.ny street or highway, wantonly or maliciously disturb the peace
and quiet of the inmates of any dwelling house near euch street or
highway,—
(A.) Tear down or deface signs, break windows, doors or door
plates, or tlie walls of houses, roads or gardens, or destroy fences,—
(t.) Are common prostitutes or night walkers, wandering in the
fields, public streets or highways, lanta or places of public meeting or
gathering of people, and not giving a satisfactory account of them-
selves, —
(j.) Are keepers or inraates of disorderly houses, bawdy-houses or
houses of ill-lame, or houses for the resort of prostitutes, or persons
in the habit of frequenting such houses, not giving a satisfactory
account of themselves, —
(*.) Have no peaceable profession or calling to maintain them-
selves by, but who do, for the most part, support themselves by gam-
ing or crime, or by the avails of prostitution, —
Are loose, idle or disorderly persons or vagrants, within the mean-
ing of this section :
2. Every loose, idle or disorderly person or vagrant shall, upon
summary conviction before two justices of the peace, be deemed guilty
of a misdemeanor, and shall be liable to a fine not exceeding fifty
dollars or to imprisonment, with or without hard labor, for any >— -,
not exceeding six months^ or to both.
3. Any stipendiary or police magistrate, mayor or warden, or any
two justices of the peace, upon information before them n.ade, that
any person hereinbefore described as a loose, idle or disorderly person,
or vagrant, is or is reasonably suspected to be harbored or concealed
in any disorderly house, bawdy-house, llouse 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 justices of the peace, every per-
son found therein so suspected as aforesaid :
ALS, ETC.
7a
\ ■
4. If provipion is made therefor by the laws of the "Province in
which the conviction takes place, any such loose, idle or disorderly
person may. instead of being committed to the common gaol or other
public prison, be committed to any house of industry or correction,
alms house, work house or reformatory prison.— 32-33 V c 28 • 37
r., c. 43 ; 44 v., c. 31 ; R S. K S. (3rd S.), c. 162, *. 9. "
No indictment can be preferred for keeping a disorderly
house without one of the preliminaries required by sec. 140
of the Procedure Act.
On an indictment for indecent exposure of the person,
Held, that the exposure must be in an open and public
place, but not necessarily generally public and open ; if a
person mdecently exposed his person in a private yard, so
that he might be seen from a public road where there
were persons passing, an indictment would lie iJ v
levasseur, 9 L. If. 386. See B. v. Wellard, 15 Cox,
659, Ex. parte Walter, Ramsay's App. cas. 183, R. v.'
Harris, 11 Cox, 659.
A conviction under 32-33 V., c. 28, D. for that V. L.
°° '*^»s a common prostitute, wandering in the
public streets of the city of Ottawa, and not giving a
satisfactory account of herself contrary to this Statute:—
Held, bad, for not shewing sufficiently that she was asked,
before or at the time of being taken, to give an account
of herself and did not do so satisfactorily.~i2. v. Leveque
30 U. C. Q. B. 509. See B. v. ArscoU, 9 0. R. 541, and
AracoU S Lilly, 11 0. B. 153.
Held, that under the Vagrant Act, it is not sufficient to
allege that the accused was drunk on a public street,
without aUeging further that he caused a disturbance in
such street by being drunk.— ^a;. parte, Despatie, 9 X. F,
387.
It is unlawful for men to bathe, without any screen or
covering, so near to a public footway frequented by
74
PUBLIC MORALS, ETC.
females that exposure of their persons must necessarily
occur and they who so bathe are liable to an indictn.ent
for mdecency.— i2. v. Reed, 12 Cox, 1.
To keep a booth on a race course for the purpose of an
indecent exhibition is a crime—ii. v. Saunders, 13 Cox
116. '
Conviction under 32-33 V., c. 28, for keepinga house of
ill-fame unposed payment of a fine and costs to be
collected by distress, and in default of distress ordered
imprisonment. Held, good. The Queen v. Walker, 7 0. R.
The charge against a prisoner, who was brought up on
a writ of habeas corpus, was " for keeping a bawdy house
for the resort of prostitutes in the City of Winnipeg"
•Keeping a bawdy house" is. in itseff, a substSl
ptTtlle:- ^ '''''^' ' ''-' '- ^'^ -- of
Held, nevertheless, that there was but one offence
charged and that the commitment was good.-The Queen
y. McKenzis, 2 Man. L. R, m ^'^^^ueen
CHAPTER 161.
A-V ACT RESPKoriN,, „fkbncKS RELATING TO
Till! l-AWOKMAERUaE.
ui ^/Onim.MM of (3»„adft, enacts as follows : —
1. Erery one who,
J:LT^'"„;'p'r;;,',::'S> '"" '"^'^'-^'^^ "■•" "- »" •..•»..
rA ^ P«^. '^ *""" ^' «<»lt'iiinize any marriage, or—
«i;mo„r._ " "'" " *•"" "•"'' P«"»° i" performing ,„ch
w®, - .61.. 3 , , jisJ^n'i'^Z": ' *■ *■ "^^ *
"J ««i.«i.p,^SZ ""'."" «'«')' one who knowingly .id,
-. ;--»»JoT3iir :r;:3tpSnr IT- '■ -'"^
in «n„ m«,rr.r,IrZir . ' ■", '" "'°'' "■''"'" " ""rroboratol
^iS. ,'J';'°««'»'".own b.h.lf«po„ .ny oh«g. o, complaint
-^» n, . 5, ;; iZaTe:"Z"i tT' *"""■ °°°->'"«'-
'^, «fitHpi tvitliin two years affpr «l,o r^o*
-^- 5- ^ C, c. 102. „. 3 anVlVurtl- ff tT«" T^''*''^-
I'or/; A ^'. B. C, c 89. ,. 14. '^ ' ^ ^^ ^- '^' ^•> ^'^ l^^' '• 3,
'Iff
76
MARRIAOE, BIGAMV, ETO.
See form of indictment in 2d Schedule. Procedure Act
See sees 167 and 158 of the Civil Code as to Province
Of Quebec for offences covered b^ Sees. 1 and 3 of this
Act.
BIO A MY.
♦K*;r^''!T ''"'' '^^"' ^'"« ""*"'«''' '"•"'68 any Other ,H>r8on .lurin..
the l.feofthe former huaband or wi,e. whether the Hec ^1; "f
"ve7;e::;;7„:;:::i-'^-- '- -'^^ - ^— ^ -'^"
2- Nothing in Ibis aection contained alisll extend to —
(a) Anyeeoond "i«ma|{e oontr«cl,d el»e»l,ere tli«,', in c.nad. br
Imv ng the ,a„,e ■.„lb intent to con.mit tj.e olTence ,
W Any person marrying a second time, whose husband nr „lf.
has been e„„.i„„ally absent Trom such person for .1. s^e „ e" J
fng :s t'r. sr ""° "•' -' ^"°"" ^^ '-" ^-» - ^« ''-•
di:itd"LTtre:':i^'tr;'„::L°^:g:''r" -""- -
the1i,t7 ^7" ""^^^ ^°"""" """■""«« ^^'^ been declared void by
the sentence of any court of competent juri8diction.-32-33 K, c 20
»• 68,^ar/. 24-26 V., e. 100, *. 67, Imp. ' '
See sect. 16 of the Procedure Act as to venue
Indictment-Th^ Jurors for Our Lauy the Queen upon
their oath present, that J. S. on in the year of Our
^'t V'n^^' P'"'^ ^^ ^" the did
marry one A. C, spinster, and her the said A. C. then and
there had for his wife ; and that the said J. S. afterwards
and whilst he was so married to the said A. C., as aforesaid
^/^^; °^, ,f^• <iay at feloniously
and unlawfully did marry and take to wife one M Y and
to her the said M. Y. was then and there married, the said
A. C, .'3 former wife, being then alive ; against the
!l^ V";"**r'^^^!^'"'''''^^°''''^^^' "P°^ that the
said J. S. afterwards, to wit, on at .. in the
^'^"'"t of within the jurisdiction of the said Court
MARRIAGE, BIGAMY, ETC.
77
was appro'-eiulod (or is now in custody in the common
gaol of tho said district of ......... at within the
jurisdiction of the said Court) for the said felony.
Archhold.
Bigiuny is the felonious offence of a husband or wife
marrying again during the life of the first wife or husband,
It is not strictly correct to call this offence bigamy ; it is
more properly denominated polygamy, i. e., having a
plurality of wives or husbands at once, while bigamy
according to the canonists consists in marrying two virgins
successively, one after the death of the other, or iu
once marrying a widow.— Wharton's Law Lexicon verbo
Bigaviy.
Upon an indictment for bigamy, the prosecutor must
prove: 1st, the two man-iages ; 2nd, the identity of the
parties. — Roscoe, 294.
The law will not, in cases of bigamy, presume a mar-
riage valid to the same extent as in civil cases.— i2. v.
Jacob, 1 Moo. a C. 140.
The first wife or husband is not a competent witness to
prove any part of the case, but the second wife or husband
is, after the first marriage is established, for she or he is not
legally a wife or husband.— i2. v. Ayley, 15 Cox, 328.
The first marriage must be a valid one. The time at
which it was celebrated is immaterial, and whether cele-
brated in this country or in a foreign country is also imma-
terial. — Archbold, 883.
If celebrated abroad, it may be proved by any person
who was present at it ; and circumstances should also be
proved, from which the jury may presume that it was a
valid marriage according to the laws of the country in
which it was celebrated. Proof that a ceremony was per-
formed by a person appearing and officiating as a priest,
78
m
Wl
(II
MARRIAGE, BIGAMY, ETC.
and that it was understood by the parties to be the mar-
riage ceremony, according to the rites and customs of the
foreign country, would be sufficient presumptive evidence
of it, so as to throw upon the defendant the onus of
impugning its \aMity. -Archbold. E. v. Cresawell, 13
Cox, 126. See R. v. Savage 13 Cox 178 and R. v. GHjffin,
14 Cox, 308 ; followed in R. v. Brierly 14 0. R. 535.
In the case of R. v. McQuiggan, 2 L. C. R., Note, 346,
the proof of the first marriage was attempted to be made
by the voluntary examination of the accused, taken before
Thomas Clancy, the committing magistrate ; but this being
irregular and defective, its reception was successfully
objected to by the counsel for the prisoner. The Crown
then tendered the evidence of Mr. Clancy as to the
story the prisoner told him when taken before him after
his arrest. This the Court held to be good evidence, and
allowed ]t to go to the jury; this was the only evidence
of the first marriage, the prisoner having on that occasion,
as Mr. Clancy deposed, confessed to him that he was guilty
of the offence, as charged, and at the same time expressed
his readiness to return and live with his first wife. The
second marriage was proved by the evidence of the clergy,
man who solemnized it.
In R. v. Creamer, 10 L. C. R. 404, upon a case reserved
the Court of Queen's Bench ruled, that upon the trial of an
indictment for bigamy, the admission of the first marriage
by the prisoner, unsupported by other testimony, is suffi*
cient to support a conviction.
In R. V. Newton, 2 Moo. C. C. 503, and R. v. Sim-
monds, 1 C. & K, 164. Wightman, J., held that the pris-
oner's admissions, deliberately made, of a prior maniaae
m a foreign country, are sufficient evidence of such mar-
riage, without proving it to have been celebrated accord-
Marriage, bigamy, etc.
79
ing to the law of the country where it is stated to have
taken iplace.— Contra, in R. v. Savage, 13 Cox, 178.
A firt:t marriage, though voidable, if not absolutely void,
will support an indictment for Uoomy.—Archhold, 886.
As to the second marriage, it is immaterial whether it
took place in Canada, or elsewhere, provided, if it took
place out of Canada, the defendant be a subject of Her
Majesty resident in Canada, whence he had left to com-
mit the offence.
It seems that the offence will be complete, though the
defendant assume a fictitious name at the second mar-
riage.— 2J. V. Allison, R. dh R., 109.
Same ruling on a case reserved, in R. v. Rea, 12 Cox
190.
Though the second marriage would have been void,
in any case, as for consanguinity or the like, the defendant
is guilty of bigamy.— i2. v. Brown, \ C. & K. 144.
In R. V. Fanning, 10 Cox, 411, a majority of the
judges of the Irish Court of Criminal Appeal held, con-
trary to R. v. Brown, that to constitute the offence of
bigamy, the second marriage must have been one which,
but for the existence of the previous marriage, would
have been a valid marriage, but the English Court of
Criminal Appeal, by sixteen judges, in R. v. Allen, 12
Cox, 193, since decided, as in R. v. Brown, that the inva-
lidity of the second marriage, on account of relationship,
does not prevent its constituting the crime of bigamy.
It must be proved that the first wife was living at the
time the second marriage was solemnized; which may
be done by some person acquainted with her and who
saw her at the time or afterwards.— Archbold, 887. On
a prosecution for bigamy, it is incumbent on the prosecu-
tor to prove that the husband or wife, as the case may
80
MARRIAGE, BIGAMY, ETC.
be, was alive at the date of the second marriage. There
is no presumption of law of the continuance of the life
of the party for seven years after the date at which he
or she was proved to have been alive. The existence of
the party at an antecedent period may or may not afford
a reasonable inference that he or she was alive at the
date of the second marriage ; but it is purely a question
of fact for the jury. — R. v. Lumley, 11 Cox, 274.
On the trial of a woman for bigamy, whose first hus-
band had been absent from her for more than seven years,
the jury found that they had no evidence that at the time
of her second marriage she knew that he was alive ; but
that she had the means of acquiring knowledge of that
fact, had she chosen to make use of them. It was held
that upon this finding, the conviction could not be sup-
ported. — R v. Briggs, Dea y. and B., 98.
On this last case, Greaves, 1 Eussell, 270, note 1,
remarks : " The case was argued only on the part of the
prisoner, and the Court studiously avoided determining
on which side the onus of proof as to the knowledge of
the first husband 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, c. 31, s. 22, and in the new Act is in
the nature of proviso. Now no rule is better settled than
that if an exception comes by way of proviso, whether it
occurs in a subsequent 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 ever
negatives the exceptions as contained in the proviso, and
hence it follows that the proof of those exceptions lies on
the prisoner; if it was otherwise, the prosecutor would
have to prove more than he has alleged. Then the proviso
MARRIAGE, BIGAMY, ETC.
81
in terms requires proof both of the absence of the party
for seven years, and that the party shall not have been
known by the prisoner to have been living within that
time, and consequently it lies on the prisoner to aive
evidence of both; 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
When, however, the prisoner has given evidence to nega-
tive his knowledge that the party is alive, the onus nmy
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 R. v. Ellis, 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
was 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
during the whole of those seven years he was ignorant
that his first wife was alive, and that unless he has proved
both those facts to their satisfaction they ought to con-
vict him. It is perfectly clear that the question is not
whether he knew that his first wife was alive at the time
of the second murriage, 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,"
6
■!•'
82
MARRIAGE, BIGAMY, ETO.
On E. V. 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 beJi'-* of the death of the first
husband or wife was a defence, and the case is probably
misreported. Tbe provis ) that requires absence for seven
years and ignorance of the first husband 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 shov that the accused
was aware of this fact. — R. v. Curgertven, 10 Cox, 152;
B. V. Fontaine, 15 L. C. J. 141, See R. v. Jones, 15
Cox, 284.
Tn 1863, the prisoner married Mary Anne Eichards,
lived with her about a week and then left her. It was not
proved that he had since seen her. In 1867, he mairied
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 v;as alive at the time
of the second marriage, and ruled that positive proof on
that point was not absolutely necessary. The prisoner
was found guilty, and, on a case reserved the conviction
was affirmed. — B. v. Jones, 11 Cox, 358.
In E, V. Horton, 11 Cox, 670, Cleasby, B., summed
up as follows : " It is submitted that, although seven years
had not passed since the first marriage, yet if the prisoner
reasonably believed (which pre-supposes proper grounds of
belief) that his first wife was dead, he is entitled to an
acquittal. It would press very hard upon a prisoner if
unri.er such circumstances he could be convicted, when it
St >t
MARRIAGE, BIGAMY, ETC. , §3
appeared to him as a positive fact that his first wife was
dead The ease of E. v. Turner, 9 Cox, 145. shows
that th,s was the view of Baron Martin, a judge of as
great experience as any on the bench now, and I am not
disposed to act contrary to bis opinion. You must find
the prisoner gudty, unless you think that he had fair and
reasonable grounds for believing, and did honestly believe
that 1»3 hrst w>fo was dead." The jury returned a verdict
of gu,lty and the judge sentenced the prisoner to impris-
onmont for three days, remarking that he was quite sat -
fled w,th the verdict, and that he should inflict a light
sentence, as he thought the prisoner really believed !is
f •„ t r: ,^'f' "'*""«'' ""^ *-' -ot warmnted in
t win • ""*' ^™"^"' '•'™«* - ^•
But in a later case, E. v. Gibbons, 12 Cox, 237, it was
th fet'h T^^"'-/-J- '"»' »"»<«^ belief Z
the first husband was dead was no defence by a woman
accused of bigamy, unless he has been continuously absent
for seven years Same ruling, R v. Bennett. 14 Oox. 45
Contra, R. v. Moore, 13 Cox, 644
On an indictment f,r bigamy, a witness proved the first
mairiage to have taken place eleven years ago, and that
the parties hved together some years, but could not say
How ,s .t possible for any man to prove a negative ?
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
ofleuce proved.-iJ. v. HeoOm, 3 F. & F. 819
^ Sec 16 of the Procedure Act provides that fte offender
apprehended or is in custody. But this provision is only
84
MARRIAGE, BIGAMY, ETC.
cumulative, and the party may be indicted where the second
marriage took place, though he be not apprehended ; fo.
in general where a statute directs that the offender may be
tried in the county, district or place in which he is appre-
bended, but contains no negative words, he may be tried
where the offence was committed.— 1 Rues. 274.
The avc 't' the prisoner's apprehension, as in the
form given, v, is only necessary where the second mar-
riage took place in another district than where the defen-
dant is indicted.— ^Irc/ifeoW, 883.
In K. V. McQuiggan, 2 L. C. R., 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
rrovince, and that he left the same with intent to commit
the offence. - See also R. v. Pierce, post.
On a trial for bigamy, the Crown having proved the pris-
oner's two marriages, it is for him then to prove the absence
of his first wife during seven years preceding the second
marriage; and when such absence is not proved, it is not
incumbent on the Crown to establish the prisoner's know-
ledge that o first wife was living at the time of the
second marriage-E. v. Dwyer, 27 L. C. J. 201. See R. v.
Wiltshire, 14 Cox, 541. , qo oo ir
The prisoner was convicted of bigamy under 32-3d V.,
c 20 8 58 The first marriage was contracted in Toronto
and the second in Detroit. The judge at the trial directed
the jury that if prisoner was married to his first wife m
Toronto and to his second in Detroit, they should find him
^mid, a misdirection, and that the jury should have been
MARRIAGE, BIGAMY, ETC. ' qk
told in addition that before they found him guilty they
ought to be satisfied of hi, being, at the time of his Leond
n.arr,age, a subject of Her Majesty resident in C»rda
and^that he had left Canada with in« to el^t t
theS'°' "^' '' """ '■"'""»'«■"<'■' ^rCrowntoprove
Quaere, per Wilson, C. J., whether the trial should not
hav^ be» declared a nuUity.-r/. Que..i;ZlX
OFFENCES AGAINST THE PERSON.
MUEDEll AND MANSLAUGHTER.
The law takes no cognizance of homicide unless death
result from bodily injury, occasioned by some act or
unlawful omission, or contra-distinguished from death
occasioned by any influence on the mind, or by any disease
arising from such influence. The terms " unlawful
omission" comprehend every case where any one, being
under any legal obligation to supply food, clothing or
other aid or support, or to do any other act, or make any
other provision for the sustentation of life, or prevention
of injury to life, is guilty of any breach of duty. It is
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 computation of the year and the
day from the time of the injury, the whole of the day on
which the act was done, or of any day on which the cause
of injury was continuing, is to be reckoned the first. A
child in the womb is not a subject of homicide in respect
of any injury inflicted in the womb, unless it afterwards be
born alive ; it is otherwise if a child die within a year and
a day after birth of any bodily injury inflicted upon such
child, whilst it was yet m the womb. — 4 Cr. L. Com.
Report, p. XXXII, 8th of March, 1839.
If a man have a disease which in all likelihood would
terminate his life in a short time, and another give him a
wound or hurt which hastens his death, it is murder or
other species of homicide as the case may be. And it has
been ruled that though the stroke given is not in itself so
mortal, but that with good care it might be cured, yet if
OFFENCES AGAINST THE PERSON. 87
applications „:; '■ ZZT T""' '" '™"' "'"'"P"
and that gan»rene ™7 ' 'I'™ '" '' «""°'''*"" °'' " f"'"'.
deatli of fhl ? " " "'" '"""""iiato cause of the
wou d t tert r:;"'^"; ""^ "-'^ "^ '''>°- «»
according to he . ^ ^ "^ "="''" "' ■»a»3la..ghter.
gangrt::. a^ not"! Totrhe S' '"'"t''' '''" "
d^h .et the wound ^^Z ITlCZ^Z ^
of throfirdisoXt'ir'ir' »": -^-'^ *« «-
a person woundld h 'X"„' '"^.^^^/^P^
manslaughter, aooordiuc 1 thf ' " '""'""■ "
the wounds hid IT k . "■■'''""stances : because if
fo.. nX :'d"it:'ii''r'''"'""'f^^-''''"'--
wounds shaU not xc„,e 1 1^°"/ " ''''""^ ">"
iJj«». 700. P'™" "'"' 8^™ them._l
to thetaj„;!l4l 27"''/'/"*" "^"" ^""^'l"-"
oy wnicH muider is to be distinguished from any
t, ;
f -^ ! t
i: 1
88
OFFENCES AGAINST THE PERSON.
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, 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 principle of malevo-
lence to particulars, but as meaning that the act has been
attended with such circumstances as are the ordinary
symptoms of a wicked, depraved, and malignant spirit; a
heart regardless of social duty, and deliberately bent upon
mischief. And in general any formed design of doing mis-
chief may be called malice. And, therefore, not such killing
only as proceeds from premeditated 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 malice prepense and consequently murder. — 1 Muss.
667.
Malice may be either express or implied hy 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 party some bodily harm. And malice is implied
by law from any deliberate 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 ii
a man wilfully poisons another; in such a deliberate act
the law presumes malice, though no particular enmity be
OFFENCES AGAINST THE PERSON. 89
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 will infer a gene-
ral malice from such depraved inclination to mischief. And
It should be 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 incum-
bent 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
provocaixon. it will not avail, however grievous such pro-
vocation 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 a provocation received, ono party deliber-
ately and advisedly denounce vengeance against the other
as by declaring that he mill hive his blood, or the like, and
afterwards carry his design into execution, he will be
guilty of murder ; althot>gh the death happened so recent-
ly after the provocation . that the law might, apart from
such evidence of express malice, have imputed the act to
unadvised passion. But where fresh provocation inter-
venes 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 a new and
sudden falling out, A. kills B. this is not murder. It isnot
to be presumed that the parties fought upon the old grudge
unless It appear from the whole circumstances of the fact '
but If upon the circumstances it should appear that the
90
OFFENCES AGAINST THE PERSON.
reconciliation was but pretendud or counterfeit, and that
the hurt done was upon the score of the old malice, then
such killing will bo murder. — 1 Uusa. G67.
If a man, after receiving a blow, feigns a reconciliation,
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, the aggressor
renews the contest, or atteuipts to do so, and the other
having a deadly weapon about him, on such sudden
renewal of the provocation, uses it without previous intent
to do so, there is evidence which may reduce the crime
to manslaughter. — R. v. Self on, 11 Cox, 674. Mr. Justice
Hannen in his charge to the jury in that case said : <' Now,
murder is killing with malice aforethought; but though
the malice may be harbored for a long time for the grati-
fication 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, and 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, admits evidence of such
provocation as is calculated to throw a man's mind off its
balance, so as to show that he committed 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 inflicted promptly upon such provocation, a
OFFENCES AGAINST THE PERSON. 91
jury would be justified in regarding the crime as reduced
to manslaughter. But if such a period of time has elapsed
as would bo sulHcient to enable the mind to recover its
balance, and it appears that the faUil blow has been struck
in the pursuit of revenge, then the crime will be murder."
Verdict of manslaughter.
In a case of death by stabbing, if the jury is of opinion
that the wound was inflicted by the prisoner, while smart-
ing under a provocation so oecent and so strong that he
miiy be considered as not being at the moment the master
of his own understanding, the offence will be manslaughter ;
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 iu the mode of possessing himself 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.— jR. v. Maynard, 6 C. & P-
J-OY.
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 Miiss. 786.
So it seems that 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
—B. v. Fisher, 8 C. cfe P. 182.
But in the case of the most grievous provocation to
f'i
i
I
OFFENCES AGAINST THE PERSON.
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 the first
transport of passion, yet if he kill him deliberately, 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 homicide upon a prin-
ciple 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 bear his lot with
patience, and remember that vengeance belongeth only to
the Most mgh.^Foster, 296.
So, in the case of a father seeing a person in the act of
committing an. unnatural ottence with his son, and killing
him instantly, this would be manslaughter, but if he only
hears of it, and goes in search of the person, and meeting
him strikes him with a stick, and afterwards stabs him
with a knife, and kills him, in point of law, it will be
murder — R. v. Fisher, 8 C. S 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 Muss. 725. But Greaves, note d, loc. dt., ques-
tions this dictum, and refers to M. v. Lynch, 5 G. S P.
324, and R. v. Maynard, supra, where Tenterden 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
OFFENCES AGAINST THE PERSON. 93
whe,. it is t, be collected from the circu JI^lTCt "^
provocation was sought for the purws; of IT ?
indicted for that hp Hii.^ .u / ' ^^ pnsoner is
»ith »a,ice ttSf ttt tT' ''^'"""""'^ ""^
without.chprovoca.iof itii \i^r„r':::^H
cause as might have justified the act. Malice afihn,.^
point of U^'the intti: Ti tiflr X t^'t-^ f'"
xns"o:;;™irthr"^-"--^^^^^^^^
because it tends J ne™ ^ tt "T '" ^ "^'-ghter.
provocation does not alar thr "' "''^'' """
implied in the intent nr^Ss BvTh ?' '"n"'"""^'"
therefore, al, intentional homlMe ^iZalJ^T'
— t^t't^Xret^ "'F-^^ ""-
P«^oseor„;;tvr:';-;;^;^^^
cide took Dlapp im,l^^ » u • ^^i^*^"^' ^^^t tha homi-
theorize i^r^::^ tTt.:::,T::''-;,z '^ ^r^
such circumstances of provocation »7 ,'^'""',"'*'^ "»<'«'•
slaughter, and show m.fV *" ""''« '* "an-
afore'thonght ne!«e'tn T ^ ""'"'"'^'' "'*■»''«<»
is eviden,; of a«v sul ' "' ""'' *'«'"'" ^^re
crime i«.m mSr t^ mCr t" *" "'""' "^^-o^ ">e
murdet to manslaughter; and if there be any
a w nni i ti i
94
OFFENCES AGAINST THE PERSON.
such evidence, then it is for the jury, whether it was such
that they can attribute the act to the violence of passion
naturally arising therefrom and likely to be aroused
thereby in the breast of a reasonable man. The law, there-
for?, is not, as was represented by the prisoner's counsel,
that if a man commits the crime under the influence of
passion it is mere manslaughter. The law is, that there
must exist such an amount of provocation as would be
excited by the circumstances in the mind of a reasonable
man, and so as to lead the jury to ascribe 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 provocation gives way
to angry passion, and does not use his reason to control
it,— the law does not say that an act of homicide inten-
tionally committed under the influence of that passion is
excused, or reduced to manslaughter. The law coi.tem-
plates the case of a reasonable man, and requires 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 ofifence, 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 do so unless satisfied that it was serious..
What I am 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,
OFFENCES AGAINST THE PERSON.
95
his nose or other LTt STX ^"""'^'^- "' ''y P»"'ng
'he aggressor. tho„rhe Tsf:;'' *"<" ■«'-*'«ely kiU^
-■noo there is „„ aw'^ 1 1^ Ifi' " ''^-*»*'.
serve himself, ,et neither is Ser for th'' " '" "■"■
V.OUS malice : but it is mansWhtr B^^ V° P^"
every other case of homicide ..„ "" ""' »'">
he a sufficient cooling me fT ^'"""^'^'•. « ""ere
reason to interpose ;ndTh/ ^"'"^ '^ '"''''<'« ^'l
wards Icill the other' tWs L d^'lT"" '° """"'^'^ "fe-
heat of blood, and a d ,?: •* ''™"»°^ ""'' »'"
iiaAtone, 191. "'"'"'''"'g'y amounts to murder.-l
the horse took frjh aL L 1?"''^'"' "'"' »«»' hin,;
onthegroundsoth t hetd^^br "'T" '''^ ^^
murder, for it was a deliL^t 5 "^ '"'"™ t" he
-Foster. 292 ^'' ""' »°^ savored of cruelty.
At page 632 of Arohbold is cited R „ ,
after lighting with another Z home W '; ''^ ' " ''"^
the father immediately took a staff r 1"^ *" "^'^ '«">«''
« mile, and beat the other ITl l^'"'-'"'''''"' "^
And this was holden to t. ^ , *'•" °' ">" Wow.
J»seice Foster, trsanlrrr"" ''"'^- ^"' ^r-
-- a very exlraordina'; o„e '"' 'bought Kowley's
Though the general rule of law is th.f
•by words will not reduce the crime „f 1 T P^^o^'ion
■i "^11
i
1
r
i
, 1
j-
:#
if
■^ i
1
!
^^ ■ -
^,13
1
f
1
96
OFFENCES AGAINST THE PERSON.
m summing up, said: "A person who inflicts a danger-
ous wound, that is to say a wound of s-^ch a nature as^he
must know to be dangerous, and death ensues, is guilty
of muiuer ; 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 provocation of
words 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 thina before
were thereupon to kill his wife, it might be mansraughter'
Now, m 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 wiU have
no more children of thee : I have done it once, and I'll do
It again,' meaning 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 wiU reduce the crime of murder to that of
manslaughter; but it is equaUy true that every prove-
OmNOlB AOAINST THB msOH. ' jy
ed th blo^ by „,t: f' P™''"«,''PP^''" to Lave resenU
stiu. weve:vrrb:x:it„Tr'^ r *■•
would not of itself rend™- 17 <^ ^ '''°""'' *'"''=''
i' be ac„„„pa„: d "^01 p'o™!"''™^'''^'' "•"
words and gertures JJlw ^ , "" ^^ ™«»»' »'
degree of e^a^^:L:"rJtl°»'«'3'.''« '» P-J»- .
duced by a viLt Wo^ I am no ^^ ?"'" "^ P""
the law will not reeaM tW ^ '"'"^ '" '^^ '*««
the c.™e to that of^ sS^o""'' " ''''""""«
andit^asbolde„TrilXTrr»:S'''''«''>i.,
that he beat the trespasser not wfth 1^ ,, '"'''"'°"<*
tion, but rnerely to Lti^etJZZT'l"'^ }'''"■
future commission of such a trelss Z f/ J"? • "^ *
ed bis brais out with a bin Tf ''^•A had knoek-
him by an o^Cus b^ dn^wS/'"^"''"'' "'"«•
beyond the bounds of a snd^l n ""•"■"^ '""'8«'.
been mn^er; thes? •:urj:oX„rs':;;: T^'"^
rhrs::ri„:tr" '^^ "-^ ^- ••-
legal sen'se of the woU"^!^ b IT" "'"f " '" '"^
by pe..„ns trespassing npon h^ 2 tn T. '^ ''""''^^''
tice that he would shLLy o„e Xc^dT i'' f,™ ""
discharged a pistol at a pe«r who J ' ■"" *' ''"«*
wounded bim in the thxVh wh°h fed r T"^' ■""■
.^di..^Moirwas.-ctrLlTr^^^^^^^
.^:rtL-p:~-t--^^^
additional quotations are /ven here ''"^
-'if J
'If >lf
98
OFFENCES AGAINST THE PERSON.
Malitia in its proper or legal sense, is different from
that sense which it bears in common speech. In common
acceptation, it signifies a desire of revenge, or a settled
arfger against the particular person ; but this is 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 be-
fore the commission of the fact, which is a mistake, arising
from the not well distinguishing between hatred and malice.
Envy, hatred and malice are three distinct passions of the
mind. 1. Envy properly is a repining or being grieved at
the happiness and prosperity of another, Invidus alte-
rius rebus macrescit opirnis. 2. Hatred which is odium,
is as Tully said, irainveterata, a rancour fixed and settled
in the mind of one towards another which admits of seve-
ral degrees. 3. Malice is a design formed of doing mischief
to another; cum quis data opera male agit, Le that
designs and useth the means to do ill is malicious ; he that
doth a cruel act voluntarily doth it of malice prepensed."
— Kelyng's C. C. Stevens & Hayne^ reprint, 174.
But the meaning of the words " malice aforethought " is
not to be determined in the same way as if they were found
in a statute just enacted, and had never been construed.
Gn the other hand, they were employed in a Statute on
this subject as far back as 1389, were found also in several
other early Statutes, and were first construed at a time
when the Courts took more liberties with Statutes than
they do now. Thus, it is said in an old book, "He that
doth a cruel act voluntarily doth it of malice prepensed."
The doctrine was long ago and is now established
that to constitute the malice prepensed or aforethought,
which distinguishes murder from manslaughter, the slayer
OFFENCES AGAINST THE PERSON. 99
need not have contemplated the i„j„,y beforehand, and
need at no fme have intented to take Ufe. If he specifi-
cally meant not death, but bodily harm of a certain la-
da«i m magmtude or kind, or if he pu^-oaely employed a
certam weapon, or did certain act, from which the kw
.mphes malice, the offence ia murder when death follow!
w,thm a year and a day. the aame a, though he intendrd
to kiU. The actual intent is i„ many circametances an
.mpor«nt element; but there may be murder a weU
w.tho«t as with a murderous mind, and especially the fita
result need not be predetermined. Thus thfwords " mXi
aforetJ^U--^,, a technical legal meani^r differi"
Mali<x in its legal sense denotes a wrongful act done
,nent.onaUy without just cause or excuse. "^Per LtZ
dale, J., in MePherson v. Daniels, 10 B. & C 272 and
approved of by Cresswell, J., i„ R. v. Noon, 6 Oox'l37
We must settle what is meant by the term rmdic^. The
legal import of this term differa from it« acceptation Z
common conversation. It is uot, as in ordinal speech
on y an expression of hatred and ill-will to an individual'
but^ means any wicked or mischievous inteution of the
Thus, in the crime of murder which is always stated in
the indictment to be committed with malice aforethought
It IS neither necessary in support of such indictment tc!
fori. ,H r^T^'^ '-y """"y 'o 'k" d^-'eased,
nor would pr«,f of absence of ill-will furnish the accused
with any defence, when it is proved that the act of kUling
was intentional and done without any justifiable canse.i
ret JSest, J., in E. v. Harvey. 2 B. & C 268
The nature of implied malice is iUustmted by the maxim
Luipa lata dolo cequiparatur"
100
OFFENCES AGAINST THE PERSON.
. ! ll
Malice aforethought, which makes a felonious killing
murder, may be practically defined to be not actual malice
or actual aforethought, or any other particular actual state
of the mind, but any such combination of wrongful deed
and mental culpability 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 ingredient in
murder, any more than it is in manslaughter. Where the
prisoner fired a loaded pistol at a person on horseback, and
the ball took effect on another, whose death it caused, the
offence was held to be murder; though the motive for fir-
ing It was not to kill the man, but only to frighten his
horse, and cause the horse to throw him.— 2 Bishop Cr L
«75, 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 hill, and this was held to be murder; for,
says the report, if a father, master, or school-n?aster will
correct his child, servant or scholar, he must do it with
such things as are fit for correction, and not with such
instruments as may probably kill them.-^Kelyng, C. C.
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 deliberately done. If he might have seen
the danger, but did not look before him, it will be man-
daughter for want of due circumspection. But if the
accident happened in such a manner that no want of due
care could be imputed to the driver, it will be accidental
death, and the driver will be excused.— Foster, 263.
Further, if there be an evil intent, though that intent
OFFENCES AGAIN8T THE PERSON.
101
extendetb not to death, it is murder. Thus if a man,
knowing that uany people are in the street, throw a stone
over a wal', intending only to frighten them or to give
thern a little hurt, and thereupon one is killed, this is mur-
der : 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 whicFi it is necessary it should have existed, or the
prisoner should have contemplated the homicide. If, for
example, the intent to kill or to do other gi-eat bodily harm
is excuted 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 ;
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.— i2. v. Campbell, 11 Cox, 323.
If an action, unlawful in itself, be done deliberately, and
with intention of mischief or great bodily harm to parti-
cular individuals, or of mischief indiscriminately, fall
where it may, and death ensue against or beside the ori-
ginal intention of the party, it will be murder. 1 Ruaa.
739. If a man deliberately shoot at A and miss him, but
kill B, this is murder. 1 HaU, 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, though he,
being present at the time, endeavored to dissuade his wife
from giving the apple to the child.— iTaie, loc. dt.
ktf
102
K-ll.^
OFFENCES AGAINST THE PERSON.
So if a person give medicine to a woman to procure an
abortion, by which the woman is killed, the act was held
clearly to be murder, for, t'luugh the death of the woman
was not intended, the act is of a nature deliberate and ma-
]icious, and necessarily attended with great danger to the
person on whom it was practised. 1 East, P. C. 230 254
Whenever one does an act with the design of commit*
ting any felony, though not a felony dangerous to human
life, yet, if the life of another is accidentally taken his
offence is murder. So if a man set fire to a house, where-
by a person in it is burned to death, he is guilty of murder
even if he bad no idea that any one was or was likelv to'
be there. 1 Rusa. 741.
In R V. Lee, 4 F. & F. 63, Pollock, C. B., told the
jury that If two or more persons go out to commit a
felony with intent that personal violence shall be used in
Its committal, and such violence is used and causes death
then they are all guilty of murder, even although death
was not intended."
Also where the intent is to do some great bodily harm
to another and death ensues, it will -be murder • as if A
intend only to heat B in anger, or fi^m pre'conceived
malice, and happen to kiU him, it will be no excuse that
he did not intend all the mischief that followed ; for what
he did was malum in se, and he must be answerable for
all its consequences ; he beat B with an intention of doing
him some bodily harm, and is therefore answerable for all
the harm he did. So, if a large stone be thrown at one
with a dehberate intention to hurt, though not to kill him
and, hy accident, it kill him. or any other, this is murder'
— 1 Russ. 742.
Where two persons go out with the common object of
robbing a third person, and one of them, in pursuit of that
J
OFFENCES AGAINST THB PERSON.
103
common object, does an act which causes the death of that
third person, under such ciroumatancea as to be murder in
him who does the act, it is murder in the other also. — H.
V. Martin, 7 Cox, 357.
CASES ILLUSTRATIVE OF GENERAL PRINCIPLES.
If a man intends to maim and causes death, and it can
be made out most distinctly that he did not mean to kill,
yet if he does acts and uses means for the purpose of
accomplishing that limited object, and they are calcuhited
to produce death, and death ensues, by th law of Eng-
land, that is murder, although the man did not mean to
kill. It is not necessary to prove anintention to kill j it
is only necessary to prove an ii.tention to inflict an
injury that might be dangerous to life, and that it resulted
iu death. A party may be convicted upon an indictment
for murder by evidence that would have no tendency to
prove that there was any intent to kill, nay, by evidence
that might clearly show that he meant to stop short of
death, and even take some means to prevent death ; but
if that illegal net of his produces death, that is murder. —
M. V. Salvi, 10 Cox, note 6, 481.
" A common and plain rule on this subject," says
Bishop, 2 Cr. L. 694, " is, that, whenever one does an
act with the design of committing any felony, though not
a felony dangerous to human life, yet, if the life of an-
other is accidentally taken, his offence is murder." Or in
the language of Baron Bramwell, in E. v. Horsay, 3 F.
& F. 287 : " the law laid down was that where a prisoner
in the course of committing a felony, caused the death of
a human being, that was murder, even though he did not
intend it."
And if the act committed or attempted is only a mis-
demeanor, yet the " accidental " causing of death, in
|i "^t
J
I
104
OFFENCES AOAINaT THE PERSON.
conso(iuonce of this act, is murder, if the misdemennor is
one endangering human liio.—Bishap, 2 Or. L. Gyi.
If a large stone be thrown at one with a delitwrute in-
tention to hurt, though not to kill him, and, by accident,
it kill him, or any other, this is murdur.— 1 //afe, 440, 1
Jiutis. 742. Also, where the intent is to do some great
bodily harm to another, and death ensues, it will be mur-
der : 03 if A intend urdy to beat B in anger, or from pre-
conceived malice, and happen to kill him, it will be no
excuse that ho did not intend all the mischief that fol-
lowed : for what he did was malum in se, and he must be
answerable for all its consequences : he beat B with au
intention of doing him some bodily harm, and is therefore
answerable for all the harm he did. In Foster, 261, it is
said : " If an action unlawful in itself be done delibe-
rately and with intention of mischief or great bodily harm
to particulars, or of mischief indiscriminately, fall it
where it may, and death ensue against or beside the orig.
inal intention of the party, it will' be murder. But if
such mischievous intention doth not appear, which ia
matter of fiict and to be collected from circumstances, and
the act was done heedlessly and incautiously, it will be
manslaughter, not accidental death, because the act upon •
which death ensued was unlawful."
Extreme necessity of hunger does not justify an homicide.
—R. V. Dudley y 15 Cox, 642.
If two persons enter into an agreement to commit suicide
together, and the means employed kill one of them only,
the survivor is guilty of murder.— 22. v. Jessop, 16 Cox,
204.
The circumstance of a person, having acted under an
irresistible influence to the commission of homicide, -is no
defence, if at the time he committed the act, he knew he
OFFENCES AGAmST THE PERfloy.
was doing what was wmn<.-» y rr
On an indicfmont for miiMr.r u u •
prisoner, . soldier ahot M „m ^'"« '"'"™'' """ "■«
only evidence oVthe defe ""L"''^''*'' "'"'"•■«<'. the
sudden, without ap'^ntt ° f "■"' "'" """ ««
ad.lioW to drinic aSd hlr '' ''^'' "'"' '"' '""" ''««°
of insanity, that th^'r r"'**" *" ""'«' "'« '^"f-'nee
oner «»d v^Ltt::;^^;:^" ^/.^^^ «■« V^^
«"ns soon after the act we're evidence o hi ' Z^T
ailpged inadequacy of motive ™^."""' "' ""»■ ""d tliat
fon being, no't n.o. ve h rintoV^r""'' "" ""''■
C7oa;, 341. intent.— ij. y. i)ea;on, U
Killing a man who was out at nmi^f a , .
as a ghost, for the purpose !>ffK. -''''^ '° ^^^*«
<^ if. 284. • ^^^ ' ^- V. Pi««, Car.
stmng.e3hin,,this';ilCderT''1,'''' '■"'^' ■"«•
372. muraer.— i2. y. ^/i^^^^ 6 C. S P,
enters intri^i^:^ rrxfTnt'^d^r '^ ^-'»-
avail himself of it and n the 7 '"'^f"'ht the time to
ally uses i, and ««: hi ..ter 7;,°?'^ ""f " ""'""
he did not intend to nse it when I I """^'"' *"" *'
used it in the heZZ^Z"^ " '''^*° ""^ ''™'^^'' hut
passion, m consequence of an attack
11
^1
1 ff^
1 R
If
til 1
' P'
1'^ ;
' &
.^. ,
r
i »
106
OFFENCES AGAINST THE PERSON.
I
made upon him, it will be manslaughter. If he 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, having no other
means of defence, and no means of escape, and retreating
as far as he can, it will be justifiable homicide. — B. v.
Smith, 8 G.dhF. 160.
A person cannot be indicted for murder in procuring
another to be executed, by falsely charging him with a
crime of which he was innocent.— jR. v. Macdaniel, 1 Leach,
44. Sed qvAMve ? 4 Blackstone, 196 j 2d Report, 1846, Cr.
Law GorriTn. 45.
Child murder. —To justify a conviction on an indict-
ment charging a woman with the wilful murder of a child
of which she was delivered, and which was born alive, the
jury must be satisfied affirmatively that the whole body was
brought alive into the world ; and it is not sufiQcient that
the child has breathed in the progress of the birth. — R. v.
Poulton, 5 C„ & P. 329; E. v. Enoch, 5 C & P. 539.—
If a child has been wholly produced from the body of its
mother, and she wilfully and of malice aforethought
strangles it while it is alive, and has an independent circu-
lation, this is murder, although the child is still attached
to its mother by the umbilical cord. — R. v. Trilloe, 2
Moo. C. C. 260. — A prisoner was charged with the murder of
her new-born child, by cutting off its head : Held, that, in
order to justify a conviction for murder, the jury must be
satisfied that the entire child was actually born into the
world in a living state; and that the fact of its having
breathed is not a decisive proof that it was born alive, as
it may have breathed and yet died before birth. — R. v.
Sellis, 7 C. & P. 850.— -iJ. v. Handley, 18 Cox, 79.
An infant in its mother's womb is not considered as a
person who can be killed within the description of murder
OFFENCES AGAINST THE PERSON.
107
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 will constitute a felonious homicide.— i2. v.
Wright, 9 C.dtF. 754 ; E. v. Blain, 6 C. o& Z'. 349 ; 1
Rus8. 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 born alive and
dies thereof, and there is malice, be murder ; but if there is
not malice, manslaughter.— ii. v. Senior, 1 Moo. C. C. 346 •
1 Lewin, C. C. 183. ' '
Murder hy poisoning.^ 0£ all the forms of death, by
which human nature may be overcome, the most detes-
table is that of poison : because it can, of all others, be the
least prevented eitl r by manhood or forethought.— 3 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 act of deliberation odious in
law, and presumes malice.— 1 Hale, 455. 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 teaspoonful every
night. That person did not do so, but put the bottle on
the mantel-piece, where another little child found it, and
gave part of the contents to the prisoner's 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.— .R. v. Minhael, 2 Moo. C. C. 120. On
a trial for murder by poisoning, 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.— ij.
108
OFFENCES AGAINST THE PERSON.
m
V. 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 poison, and that the
prisoner was at all the deaths, and administered something
to two of his patients.— i2. v. Winslow, 8 Cox, 397. On
an indictment against a woman for the murder of her
husband by arsenic, in September, evidence was tendered,
on behalf of the prosecution, of arsenic having been taken
by her two sons, one of whom died in December and the
other in March subsequently, 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 tendered that she lived in the same
house with her husband and sons, and that she prepared
their tea, cooked their victuals, and distributed them to
the four parties : held, that this evidence was admissible
for the purpose of proving, first, that the deceased husband
actually died of arsenic ; secondly, that his death was not
accidental ; and that it was not inadmissible by reason of
its tendency to prove or create a suspicion of a subsequent
felony.—i^. v. GeeH7ig, 18 Z. J, M. C. 215. Upon the
trial of a husband and wife for the muixier of the mother
of the former by administering arsenic to her, for the pur-
pose of rebutting the inference that the arsenic had been
taken by accident, evidence was admitted that the male
prisoner's first wife had been poisoned nine months previ-
ously; that the woman who waited upon her, and
occasionally tasted her food, shewed symptoms of having
taken poison ; that the food was always prepared by the
female prisoner ; and that the two prisoners, the only other
persons in the house, were not affected with any symptoms
of poison.— iJ. v. Garner, 4 F. & F. 346. And Archbold,
J., after consulting Pollock, C. B., in R. v. Cotton, 12
OFFENCES AGAINST THE PERSON.
109
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 charae
after having been attended by her was admissible —See
R. V. Roden, 12 Cox, 630.
MURDER BY KILLING OFFICERS OF JUSTICE.
Ministers of justice, as bailiffs, constables, watchmen
etc. (either civil or criminal justice), while in the execution
of their offices, are under the peculiar protection of the
law; a protection founded in wisdom and equity and in
every principle of political justice ; for without it the pub-
he tranquillity cannot possibly be maintained, or private
property secured. For these reasons, the killing of officers
so employed has been deemed murder of malice prepense
as being an outrage wilfully committed in defiance of the
justice of the kingdom. ^^^ . kw extends the same protec-
tion to any person acting in aid of an officer of justice
whether specially called thereunto or not. And a public
officer IS to be considered as acting strictly in discharge of
his duty, not only while executing the process intrusted
to him, but Ukewise while he is coming to perform, and
returning from the performance of his duty.
He is under the protection of the law eundo, 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 prin-
ciples, if he meets with opposition by the way and is
killed before he conies to the place (such opposition being
intended to prevent his performing his duty), this will also
be murder.-i2osco6, 697; 1 Ruas, 732. But the defeu-
4' tl
110
OFFENCES AGAINST THE PERSON.
dant 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 manslaughter only.
In order to render the killing of an officer of justice,
whether he is authorized in right of his office or by
warrant, amount to murder, upon his interference with
an affray, it is necessary that he should have given
some notification of his being an officer, and of the intent
with which he interfered.— iJ. v. Gordon, 1 East P r
315, 352. ' '
Where a constable interferes in an affray to keep the
peace, an.i is killed, such of the persons concerned in kill-
ing him as knew him to be a constable are guilty of murder
and such as did not know it of manslaughter only.—l Hale
446. But it hath been adjuged that if a justice of the
peace, constable or watchman, or even a private person be
killed in endeavoring 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 in the king's name to
keep the peace, or otherwise manifestly shewing his inteu-
tion to be not to take part in the quarrel but to appease it"
he who kills him is guilty of manslaughter only, for fa-
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 genernlly
acknowledged to bear the office he assumeth, the law will
presume that the party killing had due notice of his intent
especially if it be in the day time.— 1 Hawkins, 101. '
Killing an officer will amount to murder,' though he had
no warrant, and was not present when any felony was
OFFENCES AGAINST THE PERSON. m
^. <fc Jt.. 329 &/Lr, i felony— A v, Ford
S- V. Carey' uttiT' " '^ '^'°^'^' '^ ^"-^ "^<
if the officer hat '"^ ' ""' '"""^ '^ >* ''"■'^^'^''•
officer does not r,.,ZTT . '"' "*'*'■• """'g'' a«
the party we e k L ??""'' " '' "' """'' "»^''^' «» ''
dant in fhe act fori " '' ""'"P""'" '° ''""> '^e defen-
not, has power to ar:?"''""' "'''"'^' * P'""^ ""i"" «'
aotiany ToZtoi n ?Xn7" rT'^" '° r""' "'
C. C. 207. iUony.-_i2. v. Howarth, 1 i/oo.
and" rer^rcl.tctrth"""' '" " """'^ """-^W^-.
»an is justifi t d:j Lfhi "T' "' "^''l' " P"""-
his hand on hin, and Xhtlv n V" 7- *'"' '" '"^'-^
done to give effect m\-^ ^ "^ '"'"• 'f"'« ""'y
ouso .^J a^;„v:ad::°r"rr' and if the person!
dangerous weaZ andTi" -^ ''""''" *'* "
otherwise if trnoll"^ ""' " «""* ""dcr. but
hi. down j^ rir, r a?™ ;r ^ """ ''-"^''^
MUHDER._K,uma BV OFFERS 0. ,WT,CE.
hi. d5 ;m:?U?":^.r-''-™™«'o e,ecnte
manslanghte or mnrd ' '' f '""'"^ '■°™<'''J«. »'
I I
iiLi' ^'^
112
OFFENCES AGAINST THE PERSON.
tion of his duty, he may repel force by force ; and if in
doing so, he kills the party resisting him, it is justifiable
homicide ; and this in civil as well as in criminal cases. —
1 Hale, 494; 2 Hale, 118. And the same as to persons
acting in aid of such officer. Thus if a peace officer have
a legal warrant against B. for felony,or if B. stand indicted
■ for felony, in these cases, if B-resist, and in the struggle
be killed by the officer, or any person acting in aid of him,
the killing is justifiable. — Foat. 318. So, if a private
person attempt to arrest one who commits a felony inhia
presence or interferes to suppress an affray, and be resisted,
and kill the person resisting, this is also justifiable homi-
cide. — 1 Hale, 481, 484. Still there must be an apparent
necessity 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 upon 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 such that it would have
been manslaughter only to kill the officer or private person,
it will be manslaughter, at least, in the officer or private
person to kill the party resisting. — Fost 3 18 ; 1 Hale, 490.
If the prisoners in a gaol, or going to a gaol, assault the
gaoler 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
OFFENCES AOAIHST THE PEKSOK. U3
killed by the officer op private pereon in the purauit if the
a felouy, or a dangerous wound given, and he could not
othrwse be apprehended, the homicide i, justifiable ; b„
rf charged w.th a breach of the peace or other misden, anop
merely, or rf the arrest were intended in a civil suit or ij
a press-gang kiU a seaman or other person flyin» fr^„
them the kilUng in these ««es would I m^rZr unbsT
indeed, the homicide were «»=a,ioned by means n^t likely
or intended to kill, such as trippi„g „p Ws heels, g vin^
hm. a blow of an oniinary cudgel, or other weapon not
bkely to k,l or the like; in which case the homlide
at most, would be manslaughter only. In case of a rio tT;
rebellious assembly, the officers endeavoring to dis^rse
he mob are jusUfiable in killing them, both at common
aw. and by the Riot Act, if the riot cannot otherwise ba
suppressed.— ^rcAioW. 646.
DUELLING.
Where words of reproach or other suc'den provocations
have led ,» blows and mutual combat, anJdlatTh^
ensued, the important enquiry will be. whether th^
occasion was altogether sudden and not the result of
preconceived anger or malice; for in no case will the
kilmg though in mutual comtet. admit of alleviation
tf the fighting were upon a maUce. Thus a party killinJ
another in a deliberate duel is guilty of mnrier.-l S^.
Where, upon a previous agreement, and after there has
been time for the blood to cool, two persons meet wit"
deadly weapons, and one of them is killed, the party who
occasions the death i, guilty of murder, and the secold^
also are equally guilty; and with respect to othe« rewn
T
114
OFFENCES AGAINST THE PERSON.
to be present, the question is, did they give their aid and
assistance by their countenance and encouragement 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 anything, yet, if they are
present assisting and encouraging by their presence at the
moment when the fatal shot is fired, they are, in law,
guilty of the crime of murder. — R. v. Young, 8 C. S 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
person in such a duel may be 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. — R. v. Cuddy, 1 G. i; K. 210.
Verdict. — General Remarks. — By sect. 183 of the Pro-
cedure Act 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 shall not by reason
thereof be entitled to be acuiiitted, but the jury shall be
at liberty to return as their 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 mis-
demeanor charged in the indictment.
OFFENCES AGAINST THE PERSON. 115
And by sect. 191 of the Procod„re Act, „„ the trial of
any per.,o„ lor any felony whatever, where the or ,„e
charged uMes an aasault against the person, alth Z
an aasaul be not charged in terms, the jnry n ay ac 3
of the felony, and And a verdict of gniUy of asl
against the person indicted, if the evidence ZZJ u
«ndin. In EngUn,a si,ni,ar clan'tr V" T^ r^
c. 85, sect. 11, has been repealed. '
SELF-MURDER.
A /do de se or felon of himself, is a person who beina
of sound mmd and of the age of discretion, volunta v
killeth himself.~3 Inst. 54. vomntauly
se, and dieth not within a year and a day after th/ 7
he is not /do de se.-Ihid. ^ ^^ '^^"^•^'
The following passages from Hale and Hawkins mav
be usefully inserted here • ^»vvKins may
ders hem to be madmen, or frantic, or destitute of Le"
use of reason : a lunatic kil ■ himself in th. «/ n
is not felo de se; otherwise u as iHf 1 . I """'^
-1 Hale, 412. ' '^ ^' ^^ ^"^^^^^ time."
" But here, I cannot but take notice nf « afro
which has nnacconntably prevailed oTlaL thlt f ™ "
who kilU himself must be «<,« «o»;L of „ ^L 'f i?"
sar to be impossible that a man intis IseT „„u !
a .adman can be guilty „, J:^^^'^:^^
u\
4:
)"¥(
11
116
OITENCES AGAINST THE PERSON.
t*"!
the repugnancy to nature and reason, which is the highest
aggravation of this ofl'ence, 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 bub
a madman can be guilty of it. May it not, with as much
jvt 'M. ')e argued that the murder of a chUd or of a parent
ia a;.):>aist nature and reason, and consequently that no
man in his senses can commit it." — 1 Hawkins, c 9, s. 2.
If one encourages another to commit a suicide, and is
present abetting him while he does so, such person is
guilty of murder af a principal ; and if two encourage each
other to juiurder 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. — B. v,
Dyson, R. d: R. 523 ; R. v. Allison, S C. dt P. 418 ; R.
V. Jessop, 16 Cox, 204.
An attempt to commit suicide is not an attempt to
commit murder, within 32-33 V., c. 20, but still remains
a common law misdemeanor. — R. v. Burgess, L. & C. 258.
The finding of felo de se by the coroner's jury carries a
forfeiture of goods and chattels. —2 Bums' Just. 1340.
An attempt to commit suicide is a misdemeanor at com-
mon law. — R. V. Doody, 6 Cox, 463. See R. v. Malony,
9 Cox, 6.
MANSLAUGHTER.
(8I0. 5, POST).
Mi^rr^nt.- ..The j„„„ that A. B.
on....... at m the county d,„ felomoualy
kiU and slay one againat the peace ^
It need not conclude contra formarn. Muti. R. v.
CUtburnl Moo. O. C. 402. Nor i, itnecessaiy where tlT^
manslaughter anaes from an act of omission, tl^t s.ich act
of om,ss.on should be stated i„ the indictmenl-fl v
Smtk, n Cox, 210. ■"• ^•
der^rv"t"M' P'r'P»"y -J^'i-g^i^able from mur-
de in th.s that hough the act which occasions the death
yet the malice, eiAer express or implied, which is the ver;
essence of murder, is presumed to be wanting in man-
slaughter, the act being rather imputed to the infirmity of
human nature.— Jeoscoe, 638 ; Fo»ter, 290
ini.!^""! 'Tt' "''"'""'='<'«' ■»»«<«. "tieh is the main
.ngred.ent and characteristic of murder, is considered to be
wanting; and though manslaughter is in its degree felo-
mens, yet It ,s imputed by the benignity of the law to
human infirmity; to infirmity which, though in the eye
of the law criminal, is considered as incident to the frailty
of the -mman constitution. In orfer to make n abettor
to a manslaughter a p) .ncipal in the felony, he must be
presen aiding and abe, ing the fact comnJtted. It was
fonuer y considered that there could not be any accesso-
ries before the fact m any case of manslaughter, because it
was presumed to be altogether sudden, and without preme-
ditation. Aud It was laid down that if the indictment be
^1
■ 11
'^mi
118
OFFENCES AGAINST THE PERSON.
for murder against A. and that B. and C. were counselling
and abetting as accessories before only (and not as jn-ment
aiding and abetting, for such are princi))als), if A. bo 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 kill-
ing is sudden and unpremeditated ; for there are cases of
manslaughter where there may be accessories. Thus a
man may be such an accessory by purchasing poison for a
pregnant woman to take in order to procure abortion, and
which she takes and thereby causes her death, li. v.
Oaylor, Dears. Jh B. 288. If therefore upon an indict-
ment against the principal and an accessory after the fact
for murder, the offence of the principal be reduced to man-
slaughter, the accessory may be convicted as accessory to
the manslaughter.— 1 Rush. 783.
Manslaughter is homicide not under the influence of
malice. — R. v. Taylor, 2 Lewin, 215.
The several instances of manslaughter may be considered
in the following 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 prevent
a breach of the peace. 4. Cases where the killing takes
place in the prosecution of some criminal, unlawful or
wanton act. 6. Cases where the killing takes place in
consequence of some lawful act being criminally or
improperly performed, or of some act performed without
lawful authority.— 1 Russ. loc. cit.
CASES OP PROVOCATION.
Whenever death ensues from the sudden transport of
passion, or heat of blood upon a reasonable provocation,
I
OFFENCES AGAINST THE PERSON.
119
and without malice, it is considered as solely imputable to
liumun iufimiity: and tlie offence will be munsluughter.
It sliould bo remembered that the j)er8on sheltering him-
self under this plea of provocation must make out the cir-
cumstances of alleviation to the satisfaction of the court
and jury, unless they arise out of the evidence produced
against him ; as the presumption of law deems all homicide
to be malicious, until the contrary is proved. The most
grievous words of reproach, contemptuous and insulting
actions or gestures, or trespasses against lands or goods,
wiU not free the party killing from the guilt of murder, if
upon such provocation a deadly weapon was made use of,
or an intention to kill, or to do some great bodily harm,
was otherwise manifested. But if no such weapon be
used, or intention manifested, and the party so provoked
give the other a box on the ear or strike with a stick or
other weapon not likely to kill, and kill him unluckily
and against his intention, it will be only manslaughter.
Where an assault is made with violence or circumstances
of indignity upon a man's person, as by pulling him by
the nose, and the party so assaulted kills the aggressor, the
crime will be reduced to manslaughter, in case it appears
that the assault was resented immediately, and the aggres-
sor killed in the heat of blood, the furor brevis occasioned
by the provocation. So if A. be passing along the street,
and B. meeting him (there being convenient distance be-
tween A. and the wall take the wall) of him and justle him,
and thereupon A. kill B. it is said that suchjustling 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 man-
120
OFFENCES AGAINST THE PERSON.
Slaughter. But m the two last cases, it should seem that
the first aggression must have been accompanied with cir-
cumstances of gi-eat 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 wiU not be consi-
dered as sufficient provocation to extenuate in cases where
the re.enge i. disproportioned to the injury, and outrageous
and barbarous m its nature ; but where the blow which gave
the provocation has been so violent as reasonably to have
caused a sudden transport of passion and heat of blood, the
bllmg which ensued has been n,garded as the consequ;nce
of human infiririty, and entitled to lenient considemiou -
.. Hues 784. For cases on this defence of provocation,
see under the head Murder.
J^i,^\l' ^^^": ^(^'<^P- 182, it was ruled that
wh ther the blood has had time to cool or not is a question
for the court and not for the juiy, but it is for the jury to
find what length of time elapsed between the provocation
received, and the act done. But in R. v. Lyneh, 5 C. &
F It '«f; ^-^^^Z^'^*-^' 6 (7. <^ />. 127 ; B. v. Eagle, 2
; / u I ' ® 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 commissionei.,
4th Eeport. p. XXV, are also of opinion that "the W
may pronounce whether any extenuating occasion of pro-
vocation existed, but it is for the jury to decide wheL
tne offender acted solely on that provocation, or was gJn'y
of a mahcious excess in respect of the instrument used or
the manner of using it."
Cases of mutual comJa^.-Where. upon words of re.
proach. or any other sudden provocation, the parties come
i
/^
OFFENCES AOAINST THE PERSON. 121
to Wo«rs, aud a combat enaue,, no undue advantage being
sought or taken on either side, if death happen under sueh
c.rc„m.ta„ce,, the offence of the party killing will amount
on^- to manslaughter. If A. has formed a deliberate design
to k,U B. and after this they meet and have a qua.-«l aS
»a„y blows p^s, and A. kills B. this will be murder I
the jury ,s of opinion that the death was in consequence of
pre™us mahce, and not of the sudden p^vocatiou^A
V. m*a„, 8 (7. * P. 115. If after an exchange of blow
withou? \ "^ "' '"^ ^^'^ "» « -""eo and
Iff^r T.""" ' '"*'''"°" "' *' commencement of the
affray, snatches up a deadly weapon and kills the other
party w,th,t, such kilUng will only amount tl man
slaughter; but it will amount to murder if he placed the
weapon before they began to flght, so that he mfghTus it
dunng the aff^y. 1 R^, ygj ^ ^ ^ « «-;
437 ; A V. Wh'Odey, 1 iewi», 173
Where there had been mutual blows, and then, upon one
siaugnter.— j<. v. Ayes, R. <fe ij. 166
If two persons be fighting, and another interfere with
tt kiiirb"'""' "T^" ""' ^^^ -"■ »"»». -S
alaugtor. ' °™ "' *^ ^■"'»'"""»- *"» i» but man-
A sparring match with gloves fairly conducted in a pri
vato room is not unlawful, and therefor* death ca^sedTv
an mjury received during such a match does norioun^
to manslaughter.-JJ. v. Young. 10 Cox, 371.
. '^T',fr''^'""t<-<'JS^r>ofju,tm; to persons „^
^-9^the^r aid and to pHvoie person: ^I^^it
3
122
OFFENCES AGAINST THE PERSON.
..?
peace. See under the head murder ; sub-title murder by
killing officers of justice. Attempting illegally to arrest
a man is sufficient to reduce killing the person making the
attempt to manslaughter, though the arrest was not actu-
ally 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.~i2. v. Thompso7i, 1 Moo. C. C. 80.
If a constable takes a man without warrant upon a
charge which gives him no authority to do so, and the pris-
oner 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 like-
wise.— i2. v. Curvan, 1 Moo. G. G. 132.
Where a common soldier stabbed a sergeant in the same
regiment who had arrested him for some alleged misde-
meanor, held, that as the articles of war were not produced,
by whicli the arrest might have been justified, it was only
manslaugliter as no authority appeared for the arrest.— i2.
v. 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 omitting
it but describing him only as the son of J. S. (it appears
that J. S. had four sons, all living in his house), and stating
the charge to be for assaulting A. without particularizing
the time, place or any other circumstances of the assault,
is too general and unspecific. A. resistance to an arrest
thereon, and killing the person attempting to execute it,
will not be murder.— i?. v. Hood, 1 Moo. G, C. 381.
M'!
OFFENCES AGAINST THE PERSON.
123
A constable having a warrant to apprehend A. gave it to
his son, who in attempting to arrest A. was stabbed by him
with a knife which A. happened to have in his hand at the
time, the constable then being in sight, but a quarter of
a mile off: Held, that this arrest was illegal, and that if
death had ensued, this would have been manslaughter
only, unless it was shewn that A. had prepared the knife
beforehand to resist the illegal violence— i2. v. Patience
1 C.&P. 795.
In order to justify an arrest even by an officer, under a
warrant, for a mere misdemeanor, it is necessary that he
should have the warrant with him at the time. Theiefore,
in a case where the officer, although he had seen the
warrant, had it not with him at the time, and it did not
appear that the party knew of it; held, that the arrest
was not lawful, and the person against whom the warrant
was i3sued resisting apprehension and killing the officer;
held, that it was manslaughter only.— iJ. v. Chapman,
12 Cox, 4.
If a prisoner, having been lawfully apprehended by a
police constable on a criminal charge, uses violence to the
constable, or to any one lawfully aiding or assisting him,
which causes death, and does so with intent to inflict
grievous bodily harm, he is guilty of murder; and so, if
he does so, only with intent to escape. But if, in the
course of the struggle, he accidentally causes an injury, it
would be manslaughter. Suppose a constable, having a
good and bad warrant, arrest a man on the bad warrant
only, which he allows the man to read, who sees it is void,
and resists his arrest on that ground, and the result is the
death of the officer; if this had been the only authority the
officer had, the offence would have been only manslaugh-
ter; 13 the man guilty of murder by reason of the good
5
X
fr
\
Ill
124
OFFENCES AGAINST THE PERSON.
warrant of which he knew nothing? It would seem that
there are strong reasons for saying that he wowld not be
guilty of murder. The ground on which the killing an
officer IS murder is that the killer is wilfuUy Setting the
law at defiance, and killing an officer in the execution of
his duty. The ground on which the killing of an officer
whilst executing an unlawful warrant is manslaughter is
that every man has a right to resist an unlawful arrest,
and that such an arrest is a sufficient provocation to reduce
the killing to manslaughter. In the supposed case the
killer would not be setting the law at defiance, but would
be resisting to what appeared to him to be an unlawful
arrest; and the actual provocation would be just as great
as if the bad warrant alone existed. It is of the
essence of a warrant that "the party upon whom it is
executed should know whether he is bound to submit to
the arre.c. " (Per Coltman. J., in Hoye v. Bush, citing R
V. WeiT, lB,d;a 288.) And where an arrest is inade
without a warrant, it is of the essence of the lawfulness of
the arrest that the party arrested should have either
erp: 983 or implied notice of the cause of the aiTest. Now
where a constable in the supposed case arrests on the void
warrant, the party arrested has no express notice of the
good warrant, for it is not shown, and no implied notice of
It, for everything done by the constable is referable to the
vcid warrant; and, besides, the conduct of the constable is
calculated to mislead, and it may well be that the party is
innocent, and knows nothing of the offence Ppecified in the
vaha warrant. Lastly, it must be remembered that in such
a case the criminality of the act depends upon the inten-
tion of the party arrested, and that intention cannot in
any way be affected by facts of which he is i-norant
On the other hand, it would seem to be clear that,
OFFENCES AGAINST THE PERSON. 125
where an officer has two or more warrants, one of
which IS bad, and he shows all to the party to be arrested,
who kills the officer in resisting the arrest, it would be
muraer, for he was bound to yield obedience to the lawful
authority. By (heaves, in notes on « arrest vdthout
warrant. " (Cox d; Saunder'a CHm. Law. Gonsol Acta.
Cases where the hilling takes pUce in the prosemtion
ofsomeci^mmal, unlawfalcr wanton ac<.— Where from
an action unlawful in itself, done deliberately and with
mischievous intention, death ensues, though against or
beside the original intention of the party, it will be mur-
der; and if such deliberation and mischievous intention
do not appear, which is matter of fact and to be attested
from circumstances, and the act was done heedlessly and
mcautiously, it will be manslaughter.-ij. v. Fenton I
Lewin, a a 179 ; i2. v. Franklin, 15 Cox, 164.
As if a person breaking an unruly h^rse ride him
amongst a crowd of people, and death ensue from the
viciousness of the animal, and it appear clearly to have
been done heedlessly and incautiously only, and not with
the intent to do mischief, the crime will be manslaughter
—1 Rusa. 849. ^ *
Where one having had his pocket picked, seized the
offender, and being encouraged by a concourse of people
threw him into an adjoining pond by way of avenging
the theft by ducking him ; but without any intention of
taking away his life, this was held to be manslaughter
only.— i2. V. Fray, 1 East, P. C. 236.
Causing the death of a child, by giving it spirituoua
liquois ma quantity quite unfit for its tender age. amounte
to manslaughter.— -ij. v. Martin, 3 C. & P. 211,
If a man take a gun, not knowing whether it is loaded
I .i;
126
OFFENCES AGAINST THE PERSON.
or unloaded and using no means to ascertain, fires it in
the direction of any other person, and death ensues, this is
manslaughter.— i2. v. Campbell, 11 Cox, 323.
The prisoner was charged with manslaughter. The evi-
dence showed that the prisoner had struck the deceased
twice with a heavy stick, that he had afterwards left him
asleep by the side of a small fire in a country by-lane,
during the whole of a frosty night in January, and the
next morning finding him just alive, put him under some
straw in a barn, where his body was found some months
after. The jury were directed that if the death of the
deceased had resulted from the beating or from the
exposure during the night in question, such exposure
being the result of the prisoner's criminal negligence,
or from the prisoner leaving the body under the straw ill
but not dead, the prisoner was guilty of manslaughter.
Verdict, manslaughter. — B. v. Martin, 11 Cox, 137. See
jR. V. Towers, 12 Cox, 530, as to causing death through
frightening the deceased) j and R. v. Dugal, post.
Cases where the killing takes place in consequence of
some lawful act being criminally or improperly per-
formed, or of some act performed without lawful author-
ity. — Where a felony has been committed, or a dangerous
wound given, and the party flies from justice, he may be
killed in the pursuit, if he cannot otherwise be taken.
And the same rule holds if a felon, after arrest, break
away as he is carried to gaol, and his pursuers cannot
retake without killing him. But if he may be tal en in
any case without such severity, it is at least manslaughter
in him who kills him, and the jury ought to enquire
whether it were done of necessity or not.
In making arrests in cases of misdemeanor and breach
of the peace (with the exception, however, of some cases
OFFENCES AGAIN8T THE PERSON.
127
of flagrant misdemeanors), it is not lawful to kill tlie party
accused if he fly from the arrest, though he cannot other-
wise be overtaken, and though there be a warrant to
apprehend him, and generally speaking it will be murder ;
but under circumstances it may amount only to man-
slaughter, if it appear that death was not intended. — 1
Buss. 858.
If an officer, whose duty it is to execute a sentence of
whipping upon a criminal, should be so barbarous as to
cause the party's death by excessive execution of the
sentence, he will at least be guilty of manslaughter. — I
Hawkins, P. C, c. 29, s. 5.
Killhig by correction. — Moderate and reasonable cor-
rection may properly be given by parents, masters and
other persons, having authority in foro domestico, to those
who are under their care; but if the correction be immo-
derate or unreasonable, either in the measure of it or in
the instrument made use of for that purpose, it wOl be either
murder or manslaughter, according to the circumstances of
the case. If it be done with a dangerous weapon, likely
to kill or maim, due regard being always had to the age
and strength of the party, it will be murder ; but, if with
a cudgel or other thing not likely to kill, thougn improper
for the purpose of correction, it will be manslaughter. 1
Muss. 861.
Where a master struck his servant with one of his clogs,
because he had not cleaned them, and death unfortunately
ensued, it wa.^. holden to be manslaughter only because
the clog was very unlikely to cause death, and the
master could not have the intention of taking away the
servant's life by hitting him with it, — R. v. Wiggs, 1
Leach, .378.
A schoolmaster who, on the second day of a boy's return
to school, wrote to his parent, proposing to beat him
I
^sy^jy-
128
OFFENCES AGAINST THE PERSON.
severely in order to subdue his aUeged obstinacy, and on
receiving the father's reply assenting thereto, beat the boy
for two hours and a half, secretly in the night, and with a
thick stick, until he died, is guilty of manslaughter.— A
V. HopUy, 2 F.Jk F. 202.
Where a person in loco parentis inflicts corporal punish-
ment on a child, and compels it to work for an unreason-
able number of hours, and beyond its strength, and the
child dies, the death being of consumption, but hastened
by the ill-treatment, it will not be murder but only man-
slaughter in the person inflicting the punishment, although
it was cruel and excessive, and accompanied by violent
and threatening language, if such person believed that
the child was shamming illness, and was really able to do
the quantity of work required.— ijj. v. Cheeseman, 7 C <&
P. 454.
An infant, two years and a half old, is not capable of
appreciating correction ; a father therefore is not justified
in correcting it, and if the infant dies owing to such
correction, the father is guilty of manslaughter.— i2 v
Oriffi^n, 11 Cox, 402.
Death caused by negligence.— Where persons employ-
ed about such of their lawful occupations, from whence
danger may probably arise to others, neglect the ordinary
cautions, it will be manslaughter at least, if death is caused
by such negligence.— 1 Buss. 864.
That which constitutes murder when by design and of
malice prepense, constitutes manslaughter when arising
from culpable negligence. The deceased was with othera
employed in walling the inside of a shaft. It was the
duty of the prisoner to place a stage over the mouth of
the shaft, and the death of deceased was occasioned by
the negligent omission on his part to perform such duty.
OFFENCES AGAINST THE PERSON.
129
He was convicted of manslaughter, and upon a case
reserved the conviction was affirmed.— i2. v. Huahea 7
Cox, 301. ^ '
The prisoner, as the private servant of B., the owner
of a tramway crossing a public road, was entrusted to
watch It. While he was absent from his duty, an accident
happened and C. was killed. The Private Act of Parlia-
ment, authorizing the road, did not require B. to watch the
tramway: Held, that there was no duty between B and
the public, and therefore that the prisoner was not guilty
of negligence— iJ. v. Smith, 11 Cox, 210.
Although it is manslaughter, where the death was the
result of the joint negligence of the prisoner and others
yet It must have been the direct result whoUy or in part
of the prisoner's negligence, and his neglect must have
been wholly or in part the proximu.e and efficient cause
of the death, and it is not so where the negligence of
some other person has intervened between his act or
omission and the fatal result.— i2. v. Ledger, 2F.&F. 857.
If a person is driving a cart at an unusually rapid rate,'
and drives over another and kills him, he is guilty of
manslaughter though he caUed to the deceased to ^et
out of the way, and he might have done so, if he had not
been in a state of intoxication.— iJ. v. Walker \C & P
320. *
And it is no defence to an indictment for manslaughter
where the death of the deceased is shown to have been
caused in part by the negligence of the prisoner, that the
deceased was al^ guilty of Legligence, and so contributed
to his own death. Contributory negligence is not an
answer to a criminal charge.— iJ. v. Swindall, 2 Cox, 141.
In summing up in that case, Pollock, 0. B., said : '
*'The prisoners are charged with contributing to the
■;!!!
!l
%
180
OFFENCES AuAlNST THE PERSON.
death of the deceased by their nogligence and improper
conduct ; and, if tfiey did so, it matters not wlietho the
deceased was deaf, or drunk, or negligent, or in part con-
tributed to his own death ; for in this consists a great
distinction between civil and crimiual proceedings. If
two coaches run against each other, and the drivers of
both are to blame, neither of them has any remedy for
damages against the other. But in the case of loss jf life,
the law takes a totally different view ; for there eac' party
is responsible for any blame that may ensue, however
large the share may be ; and so highly does the law value
human life, that it admits of no justification wherever
life has been lost, and the carelessness and negligence oi
any one person hi i contributed to the death of another
person."
In R. V. Dant, 10 Cox, 102; L. S 0. 570, Black-
burn, J., said : " I have never heard that upon an indict-
ment for manslaughter, the accused is entitled to be
acquitted because the person who lost his life was in some
way to blame," And Erie, Channell, Mellorand Montague
Smith, J. J., concurred, following M. v. Swindall.
And in JR. v. Hutchinson, 9 Cox, 555, Byles, J., in
his charge to the Grand Jury, said : " If the man had not
been killed, and had brought an action for damages, or if
his wife and family hid brought an action, if he had in
any degree contributed to the result, an action could not
be maintained. But in a criminal case, it was different
The Queen was the prosecutor and could be guilty of no
negligence; and if both the parties were negligent the
survivor was guilty."
And the same learned Judge, in R. v. Kew, 12 Cox,
355, said : " It has been contended if there was contri-
butory negligence on tlie part of the deceased, then the
i l!i !
OFFENCES AGAINST THE PERSON.
181
defend nts are not liable. No doubt contributory negligence
would be an answer to an action. But who is the plaintiff
here ? The Queen, as representing the nation • and if they
were all negligent together I think their negligence would
be no (l(;fence."
And Lush, J., in R. v. Jonea, 11 Cox, Hi, tagtinctly
sai-I f-hat contributory negligence on the part of the deceased
wa I excu8(3 in a criminal case.
In R. V. Birchall, i F. dk F. 1087 Willea, J., how-
ever, held that where the deceased has contributed to his
death by hi.s own negligp ice, although there may have
been negligence on the part of the prisoner, the latter
cannot be convicted of manslaughter, observing that, until
he saw a decision to the contrary, he should hold that a
man was not criminally responsible for negligence for which
he would not be responsible in an action. But that case
has not been followed.
If a man undertakes to drive another in a vehicle, he is
bound to take proper care in regard to the safety of the
man under his c'large , and if by culpable negligent driving
he causes the death of the other, he will be guilty of man-
slaughter. — R. v. Jonea, 11 Cox, 54-4.
In order to convict the captain of a steamer of man-
slaughter in causing a death by running down another
vessel, there must be some act of personal misconduct or
personal negligence shown on his part.— i2. v. Allen,
1 C. & P. 153; R. V. Green, 1 C. is P. 156; R. v.
Taylor, ^ G. & P. 672.
On an indictment against an engine driver and a fireman
of a railway train, for the manslaughter of persons killed,
while travelling in a preceding train, by the prisoner's train
running into it, it appeared that on the day in question
special instructions had been issued to them, which in
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A
132
OFFENCES AGAINST THE PERSON.
some respects differed from the general rules and regula-
tions, and altered the signal for danger so as to make it
mean not « stop " but proceed with caution ; that the trains
were started by the superior officers of the company irre-
gularly, at intervals of about five minutes; that the pre-
ceding train had stopped for three minutes, without any
notice to the prisoners except the signal for caution; and
that their train was being driven at an excessive rate of
speed; and that then they did not slacken immediately on
perceiving the signal, but almost immediately, and that as
soon as they saw the preceding train they did their best
to stop but without effect: Held, first, that the special
ru es, so far as they were not consistent with the general
rules, superseded them; secondly, that if the prisoner
honestly believed they were observing them, and they
were not obviously illegal they were not criminally res-
ponsible; thirdly, that the fireman being bound to obey
the directions of the engine driver, and so far as appeared
having done so, there was no case against him.-ii; v'
Where a fatal railway accident had been caused by the
tram running off the line, at a spot where rails had been
taken up, without allowing sufficient time to replace them
and also without giving sufficient, or at all events effective
warning to the engine-driver; and it was the dutyo f the
foreman of plate layers to direct when the work should be
done : HeU, that, though he was under the general control
hlr^h T^r'"/ '^' ^'''"''' '^' ^°'P«°^°^ ^^« °«t liable,
but that the foreman was, assuming his negligence to have
been a material and a substantial cause of the accident,
even although there had also been negligence on the part of
the engine driver in not keeping a sufficient lookout.-i2
V. Benge, 4 F. <S; F. 504.
OFFENCES AGAINST THE PERSON. 133
By mdical practUionera and quacks Tf a
^the h.^ of .eeing a, a' ..„ ^ii:;;^^^^;
part of the prolapsed uterus of one of his mhwJ
supposjug it to be a part „f the plaoenl, Z m"}
wluoh the patent dies, ia not indictable for mLwh J
un.es, he . guilty of criminal miscondut Tri ether
aom the grossest ignorance or frm„ .!.« . ■
gross inattention to his patient's safety-S v ^ r ^
cure of a If ^ r,^ ' ^ P'''^"' undertaking the
cure of a disease (whether he has received r m?^ i
manslaughter-B vV %'« ,"" '" ^ """"""'^d »'
P. 423. " -^"^ (2«d M.6), 4 c. &
Where a person grossly ignorant of medicine adminii
pCteSr "r^*".""^ ^^™« under atr:
!ld tb.r/ '"""*°™ ""^S at the time proourabk
»d that dangerous remedy causes death, the person ^
T*-
134
OFFENCES AGAINST THE PERSON.
In this case, Lord Lyndhurst laid down the following
rule : " In these cases there is no difference between a
licensed physician or surgeon, and a person acting ao
physician or surgeon without licence. In either case, if
a party having a competent degree of skill and know-
ledge makes an accidental mistake in his treatment of a
patient, through which mistake death ensues, he is not
thereby guilty of manslaughter; but if, where proper
medical assistance can be had, a person totally ignorant
of the science of medicine takes on himself to administer
a violent and dangerous remedy to one laboring under
disease, and death ensues in consequence of that danger-
ous remedy having been so administered, then he is
guilty of manslaughter."
If a medical man, though lawfully qualified to practice
as such, causes the death of a person by the grossly un-
skilful, or grossly incautious use of a dangerous instrument,
he is guilty of manslaughter.— i2. v. Spilling, 2 M. ds
Rob, 107. Any person, whether a licenced medical prac-
titioner or not, who deals with the life or health of any of
His Majesty's subjects, is bound to have competent skill,
and is bound to treat his or her patients with care,
attention and assiduity ; and if a patient dies for want of
either, the person is guilty of manslaughter.— JB. v. %iZZer,
h C. & P. 333; B. v. Simpson, 1 Lewin, 172; M. v.
Ferguson, 1 Lewin, 181. In cases of this nature, the
question for the jury is always, whether the prisoner
caused the death by his criminal inattention and care-
lessness.— i2. V. Crick, and H. v. Crook, 4: F. & F.
619, 521; R. v. McLeod, 12 Cox 534. On an indict-
ment for manslaughter, by reason of gross ignorance and
negligence in surgical treatment, neither on one side nor
on the other can evidence be gone into of former cases
OFFENCES AGAINST THE PERSON.
135
treated by the prisoner. — R. v. Whitehead, Z C. & K.
202.
A mistake on the part of a chemist in putting a poison-
ous liniment into a medicine bottle, instead of a liniment
bottle, in consequence of which the liniment vas taken
by his customer internally with fatal results, the mistake
being made under circumstances which rather threw the
prisoner off his guard, does not amount to such criminal
negligence as will warrant a conviction for manslaugh-
ter. — R. V. NoaJe^s, 4: F. & F. 920. On an indictment
for manslaughter against a medical man by administering
poison by mistake for some other drug, it is not sufi&cient
for the prosecution merely to show that the prisoner who
dispensed his own drugs supplied a mixture which con-
tained a large quantity of poison, they are bound also to
show that this happened through the gross negligence of
the !|..nsoner. — R. v. Spencer, 10 Cox, 525. A medical
man who administered to his mother for some disease
prussic acid, of which she almost immediately died, is not
guilty of manslaughter, it not appearing distinctly what
the quantity was which he had administered, or what
quantity would be too great to be administered with
safety to life.— J?, v. Bull, 2 F. iSs F. 201. An
unskilled practitioner who ventures to prescribe danger-
ous medicines of the use of which he is ignorant, that is
culpable rashness, for which he will be held responsible.
—R. V. Marku88, 4: F. <& F. 356 ; R. v. McLeod, 12
Cox, 534
The prisoner was indicted for the manslaughter of an
infant child : the prisoner, who practiced midwifery, was
called in to attend a woman who was taken in labor,
and when the head of the child became visible, the pris-
oner being grossly ignorant of the art which he pro-
136
OFFENCES AQAINST THE PERSON.
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 bom; the prisoner was found guilty; it was
submitted that the child being en ventre de so fJre 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 waa
right.— ii. V. Senior, 1 Moo. C. C. 346.
NEGLECT OF NATURAL DUTIES.
Lastly, there are certain natural and moral duties
towards others, which if a person neglect without mali-
Clous 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 respon-
sible, if the death arose from her not suckling it, when she
was capable of doing so.— ij. v. Edwards, S C. d; 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.— iJ. v. Saunders, 7 SP
A master is nc bound by the common law to find
medical advice for Iiis servant; but the case is different
with respect to an apprentice, for a master is bound dur-
mg the illness of his apprentice to find him with proper
medicines, and if he die for want of them, it is manslaugh-
ter m the master.-iJ. v. Sndth, 8 G. <S; P. 153 Where
a person undertakes to provide necessaries for a person
who 18 so aged and infirm that he is incapable of doina it
for himself, and through his neglect to perform his undw-
OFFENCES AGAINST THE PERSON.
t
137
taking death ensues, he is criminally responsible. On an
indictment for the murder of an aged and infirm woman
by confining her against her will, and not providing her
with meat, drink, clothing, firing, medicines and other
necessaries, and not allowing her the enjoyment of the
open air, in breach of an alleged duty, if the jury think
that the prisoner was guilty of wilful neglect, so gross and
wilful that they are satisfied he must have contemplated
her death, he will be guilty of murder; but if they only
think that he was so careless that her death was occa-
sioned by his negligence, though he did not contemplate
it, he will be guilty of manslaughter.— iJ. v. Marriott, 8
a <fc p. 425.
To render a person liable to conviction for manslaughter
through neglect of duty, there must be such a degree of
culpability in his conduct as to amount to gross negligence.
—R. V. Finney, 12 Cox, 625 ; E. v. Nickolls, U Cox, 75;
M. v. Handley, 13 Cox, 79; M. v. Morby, 15 Cox, 35.
OTHER CASES OF MANSLAUGHTER.
Death resulting from fear, caused by menaces of per-
sonal violence and assault, though without battery, is
sufficient in law to support an indictment for manslaugh-
ter.— iJ. v. Dugal, 4 Q. L. R. 350.
One who points a gun at another person, without pre-
viously examining whether it be loaded or not, will, if the
•yeapon should accidentally go oflf and kUl him towards
whom it is pointed, be guilty of manslaughter.— i2. v.
Jonea, 12 Cox, 628. See R. v. Weston, 14 Cox, 346.
Three persons went out together for rifle practice. They
selected a field near to a house, and put up a target in a
i^tilihiiigBi
138
OFFENCES AGAINST THE PERSON.
I
tree at a distance of about a hundred yards. Four or five
shots were fired, and by one of them a boy who was in a
tree in a garden, at a distance of three hundred and ninety-
three yards, was killed. It was not clear which of the three
persons fired the shot, that killed the boy. Held, that all
three were guilty of manslaughter.— i2. v. Salmon, 14 Cox,
494.
If an injury is inflicted by one man upon another, which
compelled the injured man, under medical advice, to sub-
mit to an operation during which he dies, for that death
the assailant is guilty of manslaughter.—iJ. v. Davis, 15
Cox, 174.
An indictment for manslaughter will not lie against the
managing director of a Railway Company by reason of the
omission to do something which the Company, by its char-
ter, was not bound to do, although he had personally pro-
mised to do it— Ex parte, Brydgea, 18 L. G. J. 141.
An indictment contained two counts, one clarging the
prisoner with murdering M. J. T., on the 10th of November,
1881 ; the other with manslaughter of the said M. J. T.,
on the same day. The Grand Jury found a "true bill."
A motion to quash the indictment for misjoinder was
refused, the counsel for the prosecution electing to proceed
on the first count only.
Held, affirming the judgment of the Supreme Court of
New Brunswick, that the indictment was sufficient.
The prisoner was convicted of manslaughter in killing
his wife, who died on the 10th Nov., 1881. The immediate
cause of her death was acute inflammation of the liver,
which the medical testimony proved might be occasioned
by a bl or fall against a hard substance. About three
weeks before her death (17th October preceding), the pris-
oner ,1 d knocked his wife down with a bottle ; she fell
OFFENCES AaAINST THE PERSON.
139
against a door, and remained on the floor insensible for
some time ; she was confined to her bed soon afterwards and
never recovered. Evidence was given of frequent acts of
violence committed by the prisoner upon his wife, within
a year of her death, by knocking her down and kicking her
in the side.
The following questions were reserved, viz., whether
the evidence of assaults and violence committed by the
prisoner upon the deceased, prior to the 10th Nov. or the
17th Oct., 1881, was properly received, and whether there
was any evidence to leave to the jury to sustain the charge
in the first count of the indictment.
Held, affirming the judgment of tl e Supreme Court of
New Brunswick, that the evidence was properly received,
and that there was evidence to submit to the jury that the
disease which caused her death was produced by the inju-
ries inflicted by the prisoner.— -TAeaZ v. Ji., 7 8. C H
397.
A corporal was tried for murder and convicted of man-
slaughter. The evidence showed that W. (the deceased),
having been confined for intoxication, defendant with two
men was ordered by a sergeant to tie him so that he
could not make a noise. The order was not executed so
as to stop the noise, and a second order was given to tie
W. so that he could not shout. To effect this defendant
caused W. to be tied in a certaiu manner, and he died in
that position.
Held, that whether the illegality consisted in the order
of the sergeant, or in the manner in which it was carried
out, the defendant might be properly convicted.
Held, also, that the jury were justified in finding that
the death of W. was caused or accelerated by the way in
which he was tied by defendant, or by his directions-
—The Queen y. Stowe, 2Q.<kO. (N. S.) 121.
i .'i i
r&
140
OFFENCES AOAINST THE PERSON.
In the North West Territories it is not necessary that a
trial for murder should be based upon an indictment by a
grand jury or a coroner's inquest.— T^ Queen v. O'Connor,
2 Man. L. R. 235.
As to insanity as a defence in criminal cases, see The
Queen v. Riel, 2 Man. L. R. 321.
Evidence of one crime may be given to show a motive for
committing another ; and where several felonies are part
of the same transaction evidence of all is admissible upon
the trial of an indictment for any of them ; but where a
prisoner indicted for murder, committed while resisting
constables about to arrest him, had, with others, been
guilty of riotous acts several days before, it is doubtful if
evidence of such riotous conduct is admissible, even for
the purpose of showing the prisoner's knowledge that he was
liable to be arrested, and, therefore, had a motive to resist
the officers.— r^ Queen v. Chaation, 3 Pugs. (N. B.)
646.
As to the admissibility of dying declarations, the most
recent oases are : R. v. Morgan, 14 Cox, 337 ; R. v.
Bedingfield, 14 Oox, 341 ; R. v. Hubbard, 14 Cox, 565 ;
R. V. Oamand, 15 Cox,!-, R. v. Qoddard, 15 Cox, 7;
R. V. Smith, 16 Cox, 170.
CHAPTER 162.
AN ACT RESPECTING OFFENCES AGAINST THE
PERSON.
TTER Majesty, bj and with the advice and consent- of the Senate
■*-*- and House of Commons of Canada, enacts as follows i—
1. In this Act, unless tlie context otherwise requires, the expression
" loaded arms " includes any gun, pistol or other arm loaded in the
barrel with gunpowder or other explosive substance, and ball, shot,
Blug or other dentructive material, or charged with compresfled air,
and having ball, shot, slug or other destructive material in the barrel*
although the attempt to discharge the same fails 32-33 V c 20*
«. 18. Imp. Act, 24.26 K, c 100, *. 19. ' • »
"This clause is new, and is introduced to meet every
case where a prisoner attempts to discharge a gun, etc.,
loaded in the barrel, but which misses fire for want of
priming, or of a copper cap, or from any like cause. R.
V. Carr, R. & R, 377 ; Anon, 1 Rusa. 979 ; and R v!
Harris, C. & P. 169, cannot therefoie be considered as
authorities under this Act."— Greaves' Note.
2. Every one who ia convicted of murder shall suffer death as a
felon.^32-33 V., e. 20, *. 1. 24-26 f ., c. 100, *. 1, Imp.
Form of indictment in second schedule of Procedure
Act.
Upon this indictment, the defendant may be acquitted
of the murder end found guilty of manslaughter.
Sec. 109 of Procedure Act as to form of indictment, and
sec. 9 as to the venue in certain cases— Not triable at
Quarter Sess. Sec. 4 Procedure Act.
8. Every one who,—
(a.) Conspiree, confederates or agrees with any pereoo to murder
■ %f*>f» *
^1
■■'*■.;{
■4
m
142
OFFENCES A0AIN8T THE FEBSON.
any other porson, whether the person intenle.! to bo murlered t> a
fiubject of Her Miyesty or aot, or i» within the Queen's dominions or
not, or —
(6.) SolioitB, encourages, peraua<lefl, endeavors to perflua«le, or pro-
poses to any person to murder any other person, whether the person
whose murder is solicited, enoouraj?ed or attempted to Jk, pronured is
a subject of Her M^esty or not, or within the Queen's dominions or
not, —
Jo^.o'lV' °'!l '"'«^«•"«•"o^ »nJ 'i^We to ten years' imprisonment
-32-^3 v., c. 20, *. 3. 24-26 V., c. 100, *. 4, Imp.
Indictment That J. S., J. T., and E. T., on
unlawfully and wickedly did conspire, confederate
and agree together one J. N. feloniously, wilfully, and of
their malice aforethought to kiU and murder, against the
^°"" {yo^ wiay add counts cliarging the defen-
dants or any of them with "solidting, encouraging, etc.,
or endeavoHng to persuade, etc., if the facts warrart such
a charge."— Archbold.
See 1 Muss. 967 ; 3 Russ. 664.--i2. v. Bernard. IF.&F
240.
In R. V. Banks, 12 Cox, 393, upon an indictment
under this clause, the defendants were convicted of an
attempt to commit the misdemeanor charged; In R. v.
Most, 14 Gox, 583, the defendant having written a news-'
paper article, encouraging the murder of foreign potentates,
was found guilty of an offence under this clause. '
4. Every accessory after the fact to murder is liable to imprison-
ment for life.-32-33 V., c. 26, *. 4. 24-26 V., c. 100, *, 67, Imp.
6. Every one who is convicted of manslaughter is liable to impris-
onment for hfe, or to pay such fine as the Court awards, in addition
to or without any such impri8onment.~32-33 V., c. 20, a. 6. 24-25 V
c. 100, *. 6, 7mp. *
Form of indictment in second schedule of Procedure
Act. Also sec. 109, and sec. 9 of Procedure Act.
e. No punishment or forfeiture shall be incurred by anyp ereoa
OFFENCFS AGAINST THE PERSON.
143
who killii another by n.l^fortune, or in hii own defence, or in any
other manner witlioul felony .—32 3.1 F., c. 20, #. 7. 24-25 V. c. 100
/. 7, Imp. * ' '
Homicide in self-defence, i.e., committed ae et sua cfe-
fendendo in defence of a man's person or property, upon
some sudden affray, has been usually classed with homi-
cide per infortunium, under the title of exmaable, as
distinct from justijmhle, because it was formerly considered
by the law as in some measure blameable, and the person
convicted either of that or of homicide by misadventure
forfeited his goods. The above clause has put an end to
these distinctions, which Foster says " had thrown some
darkness and confusion upon this part of the law."— ibs^
273.
Homicide se defendendx) seems to be where one, who
has no other possible means of p. jserving his life from one
who combats with him on a sudden quarrel, or of defending
his person from one who attempts to beat him (especially
if such attenjpt be made upon him in his own house), kills
the person by whom he is reduced to such inevitable
necessity. And not only he, who on assault retreats to a
wall or some such straight, beyond which he can go no
farther, before he kills the other, is judged by the law to
act upon unavoidable necessity; but also he who being
assaulted in such a manner and such a place, that he
cannot go back without manifestly endangering his life,
kills the other without retreating at all.— 1 Hawkins c
11, 8. 13-14.
In the case of justifiable self-defence, the injured party
may repel force by force in defence of his person, habita-
tion or property against one who manifestly intendeth
and endeavoreth by violence or surprise to commit a
known felony upon either. In these cases he is not
"hi
iii
A'
.1
I J.'. ^
144
OFFENCES AGAINST THE PERSON,
obliged to retreat, but may pursue his adversary till he
findevh himself out of danger, and if in a conflict between
thorn he happeneth to kill, such killing is justifiable.—
Fo8t. 273.
Before a person can avail himself of the defence that
he used a weapon in defence of his life, he must satisfy
the jury that the defence was necessary, that he did all
he could to avoid it, and that it was necessary to protect
himself from such bodily harm as would fn've him a
reasonable apprehension that his life was in immediate
danger. If he used the weapon having no other means of
resistance and no means of escape, in such cases, if he
retreated as far as he could, he would be justified. — R.
V. amith, sad; P. 160 ; R. v. Bull, 9 C. S P. 22.
Under the excuse of self-defence, the principal civil
and natural relations are comprehended ; therefore master
and servant, parent and child, husband and wife, killing
an assailant in the necessary defence of each other res-
pectively, are justified ; the act of the relation being con-
strued as the act of the party himself.— 1 Hale, 484.
Chance m&dley, or as it was sometimes written, chaud
medley, has been often indiscriminately applied to any
manner of homicide by irisadventure ; its correct inter-
pretation seems to be a killing happening in a sudden
encounter ; it will be manslaughter or self-djfence accord-
ing to whether the slayer was actually striving and
combating at the time the mortal stroke wa3 given, or
had bond fide endeavored to .vithdraw from the contest,
and afterwards, being closely pressed, killed his antagon-
ist to avoid his own destruction ; in the latter case, it
will be justifiable or excusable homicide, in the former,
manslaughter. — 1 Ruaa. 888.
A man is not justified in killing a mere trespasser ] but
:/";-|iil!
OFFENCES AGAIN^IT THE PERSON. Ug
if, in attempting to turn him out of his hon^n h •
-aulted by the trespasser he may m h^n rit'tm
be * defendendo, supposmg that he was not able by Tnv
other means to avoid the aasault or .^tain Us lawW Z^
he can as m other cases of ,« <fe/W,rf,„A,, forhehas ari..ht
to the protection of his own house.- 1 Hale, 485
But It would seem that in no case is a man iustified i„
mtenfonally taking away the hfe of a mer^ CJlr
irom the consequences of such force as is reaaonablv
necessary to turn the wrong-doer out. A ki k has Tin
Aemn,, 214: throwmg a stone has been held a r„v>
mode.-ffi«Arf,y,., Co,., 2 Z.m», 161 '^ ^"^
Homicide committed in prevention of a forcible and
atrocious crime, amounting to felony, is justifiaWe is if »
man come to bum my house, and I shoot out of my house
or issue out of my house and kill him. So if A ZaT
n<)<jflii]«- iir^r^ -D ' " ■^' makes an
assault upon B a woman or maid, with intent to mvish her
and she k. Is him in the attempt, it is justifiable because
be intended to commit a felony. And not only the p In
torce, but also his servant or any other person present
may interpose to prevent the mischief • and if Z h
ensued, the party so interposing will be ju^tffied h fT
attempt to commit a fcjny should bt C' a'm^ tl
east and? "";'".*' ''°'"''="'' "'" be manslaugtoe
at least, and the rule does not extend to felonies without
:7.nT-2^.:^"- ,r-' - - --meanr:^
It should be observed that, as the killing in these ca..,
.3 only justifiable on the ground of necessSy, it ^0":
146
OFFENCES AGAINST THE PERSON.
justified unless all other convenient means of preventing
the violence are absent or exhausted ; thus a person set
to watch a yard or garden is not justified in shooting one
who comes into it in the night, even if he should see him
go into his master's hen roost, for he ought first to see if
he could not take measures for his apprehension ; but if,
from the conduct of the party, he has fair ground for
believing his own life in actual and immediate danger,
he is justified in shooting him. — R. v. Scully, 1 G. & P,
319. Nor is a person justified in firing a pistol on
every forcible intrusion into his house at night ; he ought,
if he have reasonable opportunity, to endeavour to remove
him without having recourse to the last extremity. —
Meade's Case, 1 Lewin, 184.
As to justifiable homicide by officers of justice or other
persons in arresting felons, see under the heads Murder
and Manslaughter. Also, Foster, 258. As to homicide
by misadventure, 2 Bum, 316.
7. Every offence which, before the abolition of the crime of petit
treason, would have amounted to petit treason, shall be deemed to be
murder only, and no greater offence. — 32-33 V., c. 20, s. 8, part.
24-25 v., c. 100, 8. 8, Imp.
Petit treason was a breach of the lower allegiance of
private and domestic faith, and considered as proceeding
from the same principle of treachery in private life as
would have led the person harboring it to have conspired
in public against his liege lord and sovereign. At common
law, the instances of this kind of crime were somewhat
numerous and involved in some uncertainty ; but by the
25 Edw, 3, ch. 2, they were reduced to the following cases :
1. Where a servant killed his master. 2. Where a wife
killed her husband. 3. Where an ecclesiastical person,
secular or regular, killed his superior, to whom he owed
' OFFENCES AGAINST THE PEBSON. 147
faith and obedience. It was murder aggravated by the
circumstance of the allegiance which the murderer owed
to the deceased; and in consequence of that circumstance
of aggravation, the judgment upon a conviction was more
grievous than in murder. Petit treason is now nothing
more than mnrdev.—Oreavea' note, 1 Eu^a. 710.
ATTEMPTS TO MUKDER.
cauees anygnevoue bodily ham to any person, ,e guilty of felonv
and habU U, .mpr.sonment for life.-40 V.. c. 28. 's. 1. ' 4-26 r'aZ]
J\^ T ^'*'^^^*' Arthabaska, Nov., 1872, Taschereau
K^. Ji.). J- an indictment under this sect, that "
m and upon one Rose Ann Mace unlawfully did m'ake an
assau t. and the said Rose Ann Mace did beat, wound
and lU treat with intent then and there, the said
Rose Ann Mace wilfully, feloniously and of his malice
aforethought to kill and murder" was quashed upon
demurrer for want of the word "feloniously" before
"unlawfully," and before "did beat wound and ill treat "
Amendment refused. But the indictment was good as
lora misdemeanor under sec. 34, poat.
Indictment for admmiatering poison wUh intent to
T'^"''- ^^« J"^^''^ fo' Our Lady the Queen upon
their oath present, that J. S., on feloniously and
unlawfully did administer to one A. B. {adminilr or
cav^e to be adrmnistered to or to he taken by any person)
a large quantity, to wit, two drachms of a certain deadly
poison caUed white arsenic, (any poison or othsr destrj.
tive thmg), with inteni thereby then feloniously, wilfully
and of his malice aforethought the said A. B. to kiU and
If
ft- 111
~ 111-
48
OFFENCES AGAINST THE PERSON.
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 feloniously and unlawfully, " did cause to
he administered to " and feloniously and unlawfully,
" did cause to he taken by" a large quantity, etc., and
if the description of poison he doubtful, add counts
describing it in different ways and one count stating it
to he'' a certain destructive thing to the jurors aforesaid
unknown,")
The indictment must allege the thing administered to
be poisonous or destructive ; and therefore an indictment
for administering sponge mixed with milk, not alleging
the sponge to be destructive, was holden bad.— i2. v. Pow-
Ur, 4:0. & P. 571.
If there be any doubt whether the poison was intended
for A. B. add a count, stating the intent to be to " commit
murder" generally. - B. v. Myan, 2 M.iSa Rob, 213; R. v.
Du^n, R. & R. 365.
If a person mix poison with coffee, and tell another
that the coffee is for her, and she takes it in consequence,
it seems that this is an administering ; and, at all events,
it is causing the poison to be taken. InJK. v. Harley,
4:0. & P. 369, It appeared that a coffee pot, which was
proved to contain arsenic, mixed with coffee, had been
placed by the prisoner by the side of the grate : the prose-
cutrix was going to put out some tea, but on the prisoner
telling her that the coffee was for her, she poured out
some for herself, and drank it, and it about five minutes
became very ill. It was objected that the mere mixing of
poison, and leaving it in some place for the person to take
it was not sufficient to constitute an administering. — Park,
J., said : " There has been much argument whether, in this
OFFENCES AGAINST THE PERSON.
149
case, there has been an adminiatering of this poison. It
has been contended that there must be a manual delivery
of the poison, and the law, as stated in Eyan & Moody's
Reports, goes that way (M. v. Cadman, 1 Moo. G. G. 114) •
but as my note differs from that report, and also from my'
own feelings, I am inclined to tb.nk that some mistake
has crept into that report. It is there stated that the
judges thought the swallowing of the poison not essential,
but my recollection is, that the judges held just the con-
trary. I am inclined to hold that there was an administer-
ing here ; and I am of opinion that, to constitute an
admmistering it is not necessary that there should be a
delivery by the hand."— 1 Russ, 988, and Qreavea, note
91. to it
An indictment stating that the prisoner gave and admin-
istered poison is supported by proof that the prisoner
gave the poison to A. to administer as a medicine to B.
with intent to murder B. and that A. neglecting to do so]
it was accidentally given to B.by a child, the prisoner's
intention to murder continuing.— £. v. Michael 2 Moo*
C. C. 120.
Where the prisoner, having mixed corrosive sublimate
with sugar, put it into a parcel, directing it to "Mrs.
Laws, Townhope," and left it on the counter of a tradesl
man, who sent it to Mrs. Daws who used some of the
sugar, Gurney held it to be an administering —i2 v
Leivis, 6 G.SP. 161.
And if the indictment contains a count " vdth intent to
commit murderr generally, the proceeding case, R. v.
Lewis, is clear law.— .^rcAtoZc/, 653.
Evidence of administeriug at different times may be
given to show the intQnt.^Archhold, 650; I Russ. 1004
et seq The intent to murder must be proved by circum-
stances from which that intent may be implied.
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OFFENCES AGAINST THE PERSON.
Indictment for wounding tuith intent to murder. —
one J. N. feloniously and unlawfully did wound
(wound or cause any grievous bodily Iiarm) with intent
etc. (as in the last precedent). Add a count " with the
intent to commit murder" generally. — Archhold, 650.
The instrument or means by which the wound was
inflicted need not be stated, and, if stated, would not con-
fino the prosecutor to prove a wound by such means.—
M. V. Briggs, 1 Moo. C. C. 318.
As the general term " wound " includes every " stab ''
and " cut " as well as other wound, that general term hai
alone been used in these Acts. All therefore that it is
now necessary to allege in the indictmant is, that the pris-
oner did wound the prosecutor ; and that allegation will be
proved by any wound, whether it be a stab put, or other
wound. Graves, Cons. Acta. 45. The word " wound "
includes incised wounds, punctured wounds, lacerated
wounds, contused wounds, and gunshot wounds. — Arch-
bold, 664.
• But to constitute a wound, within the meaning of this
statute, the continuity of the skin must be broken. — jR. v.
Wood, 1 Moo. C. C. 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 statute.
—Archbold, 665.
The statute says " by any means whatsoeviir", so that it
is immaterial by what means the wound is inflicted, pro-
vided it be inflicted with the intent alleged. — M. v.
Harris, R. v. Stevens, M. v. Murrow and Jennings Case,
and other similar cases cannot therefore be considered as
authorities under the present \a,w"-Greaves, Cons. Acta, 45,
OFFENCES AGAINST THE PERSON.
151
It it 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 intanded.— JR. v. Hunt 1
Moo. C, C. 93.
There does not seem any objection to insert counts on the
8th and 13th sees. (Uanada) ; and it is in all cases advisable
where it is doubtful whether the prisoner intended to
murder or merely to maim.— 3 Burn, 1 52.— Archhold»
form of indictment, 650 ; R. v. Strange, 8 C. <& P.
172 ; Ji. V. 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
of unlawfully wounding. — Archbold.
This verdict would fall under sec. 189 of the Procedure
Act; see post.
Archbold, 650, says that a defendant cannot, on an in-
dictment for the felony, plead guilty to the misdemeanor.
In R. V. Roxburg, 12 Cox, 8, the defendant was allowed
to plead guilty of a common assault.
The defendant may also be found guilty of an attempt
to commit the felony charged : Sec. 183, Procedure Act.
The jury also find a verdict of common assault, if the
evidence warrants it. Sec. 191, Procedure Act ; R. v. Cruse,
2 Moo. C. C. 53 ; R. v. Archer, 2 Moo. C C. 283 ; though
not on an indictment for poisoning.— i?. v. Delaworth, 2 M.
& Rob. 561 ; R. v. Draper, IG.&K. 176.
An attempt to commit suicide remains a misdemeanor
at common law, and is not an attempt to commit murder
within this statute.— ii. v. Burgess, L. & G. 258.
In an indictment for wounding with intent to murder,
the words " feloniously and of his malice aforethought " are
necessary — R. v. Bulmer, 5 L. K. 287; Ramsay's A pp.
Cas. 189.
15-2
OFFENCES AGAIN8T THE PERSON.
9. Every one who, by the explosion of gunpowder, or other expio*
eive substance, dewtroys or damages any building, with intent to
commit murder, is guilty of felony, and liable to imprisonment for
life.-32-33 F., c. 20, s. 11. 24-26 V., c. 100, a. I2,lmp.
Indictment feloniously, unlawfully and mali-
ciously did, by the explosion of a certain explosive sub-
stance, that is to say, gunpowder, destroy {destroy 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
murder")
In B. V. Ryan, 2 M. S Rob. 213, Parke and Alderson
held that a count alleging with intent to commit murdery
generally, is sufficient.
The jury may return a verdict of guilty of an attempt
to commit the felony. Sec. 183, Procedure Act.
10. Every one who, with intent to commit murder, sets Are 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
cants away or destroys any ship or vessel, is guilty of felony, and lia-
ble to imprisonment for life.— 32-33 F., c. 20, j. 12. 24-25 F., c. 100
*. 13, Imp.
Indictment. — feloniously and unlawfully did
•set fire to (cast away or destroy) a certain ship called
with intent thereby then feloniously, wilfully and
of his malice aforethought to kill and murder one
(Add a count stating the intent to " commit murder "
■generally).
11. Every one who, with intent to commit murder, attempts to
administer to, or attempts fo cause ^o 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 at-
. tempts to drown, suffocate or strangle any person, whether any bodily
OFFENCES AGAINST THE PERSON.
153
injury is effected or not, is guilty of felony, and is liable to imprison-
ment for life.-32-33 V., c 20, *. 13. 24-26 V., c 100, a. 14, Imp.
If one draws, during a quarrel, a pistol from his pocket,
but is prevented from using it by another person, there is
no offence against this nor the following section.—iJ. v.
St-Qeorge, 9 C. d; P, 483 ; R. v. Brown, 15 Cox, 199.
Greaves (Cons. Acts, 48) on this clause 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 •:vas not guilty of an attempt to administer poisoq,
within the repealed acta. E. v, Williams, 1 Den. 39;
and the words 'attempt to cause to be administered to, or
to be taken by ' were introduced in this section to meet
such cases."
Indictment for attempting to poison with intent.
• feloniously and unlawfully did attempt to admin-
ister (attempt to administer to, or attempt to cause to be
administered to, or to he taken by) to one J. N. a large
quantity, to wit, two drachms of a certain deadly poison
called white arsenic {any poison or other destructive thing),
with intent thereby then feloniously, wilfully, and of his
malice aforethought, the said J. N. to kiU and murder,
^ga^ost (Add a count stating the intent "to com-
mit murder," generally. Add counts charging that the
defendant " attempted to cause to be administered to" and
that he "attempted to cause to be taken by J. JV. the
poison")^Archbold, 651.
In M. v. Cad7nan, IMoo. C. C. 114, th edefendant gave
the prosecutrix a cake containing poison, which the prose-
cutrix merely put into her mouth, and spit out again, and
did not swallow any part of it. It is said in Archbold, 651,
that these circumstances would now support an indicia
ment under the above clause.
iiiii
ij i>
'- «
154
OFFENCES AGAINST THE PERSON.
Where the priaonor put salts of sorrel in a sugar Imsin,
in order that the prosecutor might take it with his tea, it
was hold an attempt to administer.— i2. v. Dale, 6 Cox,
647.
Indictment for attempting to drown 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 intent thereby then feloniously, wilfully and of his
malice aforethought, the said J. N. to kill and murder,
against {Adda count charging generally that the
defendant did attempt to drown J. N. and counts charg-
ing the intent to he to commit murder). — Archhold, 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 pris-
oner 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 tho 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 con-
fined his attack to the boat itself, as if to prevent the land-
ing, but apparently regardless of the consequences. Coltman,
J., stopi:«d the case, being of opinion that the evidence
against the prisoner showed his intention to have been
0PPENCE8 AGAINST THE PERSON.
165
rather to prevent the landing of the boys than to do them
AtiyinjuTy. Sinclair's Case, 2 Lew. 49; M. v. Dart, 14-
Cox, 143.
Indictment for shooting with intent to murder
a certain gun, then loaded with gunpowder and divers
leaden shot, at and against one J. N. feloniously and un-
lawfully did shoot, with intent thereby then feloniously
••••<,«« in the last precedent.) {Add also counts
stating '* wUh intent to commit murder" generally.
Also a count for shooting with intent to maim, etc., under
sect. 13, post). —Archhold, 652.
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 conduct and expressions used by the prisoner.—
Jtoscoe, 720.
Upon an indictment for wounding Taylor with intent
to murder him, it appeared that the prisoner intended to
murder one Maloney, and, supposing Taylor to be Maloney,
shot at and wounded Taylor; and the jury found that the
prisoner intended to murder Maloney, not knowing that
the party he shot at was Taylor, but supposing 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 murder the man at
whom he shot.— iJ. v. Smith, Dears. 559 ; 1 Russ. 1001.
It seems doubtful whether it must not appear, in order
to make out the intent to murder, that that intent 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.— ^rc^ftoZc^, 652.
¥i I
r,
166
OFFENCES A0\IN8T TUB rKBSOM.
On this question, Graves, note g, 1 Rush, 1003,
remarks : " It soems probable that the intention of the
Legislature, in providing for attempts to commit mun'yr,
Wat. to punish every attempt where, in case death hud
ensued, the crime would have amounted to murder
The tendency of the cases, however, seems to be that an
actual intent to murder the particular individual injured
must have been showed Where a mistake of one
person for another occurs, the cases of shooting, etc.,
may, perhaps, admit of a different consideration fiom the
cases of poisoning. In the case of shooLang at one person
under the supposition that he is another, altliough there be
a mistake, the prisoner must inteni !o murder that indivi-
dual at whom he shoots : it is true he may be mistaken ia
fact as to the person, and that it may be owing to such
mistake that he shoots at such person, but still he shoots
with intent to kill that person. So in the case of cutting;
a man may cut one person under a mistake that he is
another person, but still he must intend to murder the
man whose throat he cuts. In jR. v. Mister, the only
count charging an intent to murder was the first, and
that alleged the intent to be to murder Mackreth; and
although on the evidence it was perfectly clear that Mister
mistook Mackreth for Ludlow, whom he had followed for
several days before, yet he was convicted and executed,
and I believe the point never noticed at all. The case of
poisoning one person by mistake for another seems diffe-
rent, if the poison be taken in the absence oft he prisoner ;
for in such case, he can have no actual intent to injure
that person. Thodc ditliculties, however, seem to be obvia-
ted by the pre'i'. »*, oln^hite, whitl;, instead of using the
words " with intent to murder such person, " has the words
*'with intent to commit murder" In all cases of
OFFENCES AOAINST THE PERSON.
157
doubt, aa to the intention, it would bo prudent to insert
one count for shooting at A., with intent to murder him;
another "with intent to commit murder , " and a third for
shooting at A. with intent to murder the person really
intended to be killed, and if the party intended to be killed
were unknown, a count for shooting at A. with intent to
murder a person to the jurors unknown.
In R. V. Stopford, 11 Cox, 643, Brett, J., after con-
sulting Mellor, J., held, following M. v. Smith, avpra,
that an indictment charging the prisoner with wounding
Haley, with intent to do him, Haley, grievous bodily
barm, was good, although it was proved that the priso-
ner intended to wound somebody else, and that he mistook
Haley for another man,— /Sfce R. v. Hunt, 1 Moo. C. 0. 93.
A bodily injury is, in cases under this section, not
material, "whether any bodily injury be effected or not."
Indictment for attempting to ahoot with intent, etc.-^
<lid. by dmwing the trigger (drawing a tHgger
or in any other manner-) of a certain pistol then loaded
in the barrel with gunpowder and one leaden bullet, felon-
iously and unlawfully attempt to discharge tlie said pistol
at and against one J. N. with intent (as in the last
precedent.) {Add a count cmrging an intent to commit
murder, and counts for attempting to shoot with intent
to maim, under sect. 13. The indictment need not in the
latter clause describe it as " the said pistol so loaded cs
aforesaid.")— Archbold ; R. v. Baker, 1 C. S K. 254.
A verdict of common assault may, in certain cases, be^
given, upon an indictment under this section.— Sect. 191
Procedure Act.
12. Every one who, by any means other than those specified in
any of the preceding sections of this Act, atten)pt« to commit murder,
is guilty of felony, and liable to imprisonment for life.— 32-33 V. c
20, s. 14. 24-26 K., <?. 100, *. 15, Ivip. '*
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158
OFFENCES AGAINST THE PERSON.
See remarks under preceding section.
Indictment— feloniously, unlawfully and mali-
ciously did, by then (state the act) attempt feloniously,
wilfully t»nd of his malice aforethought, one J. N. to kill
feloniously, wilfully and of his malice aforethought and
murder against .........(Add a count charging the intent
to be to commit murder.J-^Archbold, 655.
Greaves, on this clause, says (Cons. Acts, 48) :
"This section is entirely new, and contains one of the
mo&t important amendments in these Acts. It includes
every attempt to murder not specified in any preceding
section. It will therefore embrace all those atrocious
cases where the ropes, chains, or machinery used in
lowering miners into mines have been injured with
intent that they may break, and precipitate the miners
to the bottom of the pit. So, also, all cases where steam
engines are injured, set on work, stopped, or anythin,'^
put into them, in order to kill any person, will fall iuco
it. So, also, cases of sending or placing infernal machines
with intent to murder. See Jt. v. Mountford, M. & M.
C. G. 441. Indeed, the malicious may now rest satisfied
that every attempt to murder, which their perverted
ingenuity may devise, or their fiendish malignity suggest,
wiU fall within some clause of this Act, and may be
visited with penal servitude for life. In any case where
there may be a doubt whether the attempt falls within
the terms of any of the preceding sections, a count framed
on this clause should be added."
13. Every one who, with intent to naaira, disfigure or disable any
person, or to do some other grievous bodily harm to any person, or
with intent to resist or prevent, the lawful apprehension or detainer of
any person, unlawfully and maliciously, by any means whatsoever,
wounds or causes any grievous bodily harm to any person, or shoota
at any person, or by drawing a trigger, or in any other manner,
OFFENCES AGAINST THE PERSON.
159
attempts to discharge any kind of loaded arms at any person, is
guilty of felony, and liable to imprisonment for life.— 32-33 F., c
20, *. 17. 24-26 v., c. 100, *. 18, Imp.
An indictment charging that the prisoner did " inflict "
grievous bodily harm instead of " cause " is sufficient
B. V. Bray, 15 Cox, 197.
See section 1, mpra, as to what constitutes a loaded
arm within the meaning of this Act.
Indictment for wounding with intent to maim —
T^at J. S,, on ,., one J. N. feloniously, un-
lawfully and maliciously did wound, with intent in so
doing, him the said J. N. thereby then to maim ; against
{^dd count stating ''with intent to disfigure,'*
and one ''with intent to disable." Also one stating
with " intent to do some grievous bodily harm." And
if necessary one "with intent to prevent (or resist) the
lawful apprehension of:') —Archbold.
An indictment charging the act to have been done
•♦ feloniously, wilfully and maliciously " is bad, the words
of the statute being *' unlawfully and maliciously."
B. V. Byan, 2 Moo. C. C. 15. In practice the first count of
the indictm. nt is generally for wounding with intent to
murder. These counts are allowed to be joined in the
same indictment, though the punishments of the several
offences specified in them are different. — Archbold.
The word " maliciously " in this section does not mean
with malice aforethought ; for if it did the offence would
be included under the 11th section. This clause includes
every wounding done without lawful excuse, with any
of the intents mentioned in it, for from the act itself
malice will be inferred.
The instrument or means by which the injury was
inflicted need not be stated in the indictment, and, if
^'f
111
ICO
OFFENCES AGAINST THE PERSON.
Stated, need not be proved as laid.— i2. v. Briggs, 1
Moo. C. 0. 318. And in the same case, it was held that
upon an indictment which charged a wound to have been
inflicted 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.
In order to convict of the felony, the intent must be
proved as laid ; hence the necessity of several counts char-
ging the offence to have been committ^jd with different
intents. If an indictment alleged that the defendant cut
the prosecutor with intent to murder, to disable, and to do
some grievous bodily harm, it will not be supported by
proof of an intention to prevent a lawful apprehension ; M.
V. Duffi,n, R. <& R. 365 ; R. v. Boyce, 1 Moo. C. C. 29 ; unless
for the purpose of effecting his escape the defendant also
harbored one of the intents stated in the indictment; R. v.
Oillow, 1 Moo. 0. C. 85 ; for where both intents exist, it is
immaterial which is the principal and which the subor-
dinate. 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, notwithstanding his princiiial object was to commit
the rape.— i2. v. Cox, R. S R. 362. So also, if a person
wound another in order to rob him, and thereby inflict
grievous bodily harm, he may be convicted on a count
charging him with an intent to do grievous bodily harm.—
Archbold.
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 somebody
else, and that he intended to wound another person.
R. V. Stopford, 11 Cox, 643.
OFFENCES AGAINST THE PERSON. 161
The prisoner was indicted for shooting at A. v/ith 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 g, nerally to do grievous bodily
harm, and wounded A. Held, on a case reserved, that he
was rightly convicted._i2. v. Fretwell, L. & C. 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 fightina
less able to defend himself, or annoy his enemy. To dist
figure IS to do some external injury which may detract
trom his personal appearance; and to disable, is to do
something which creates a permanent disability, and not
merely temporary injury.-^ rc^fto^ 666. It is not neces-
sary that a grievous bodily harm should be either perma-
nent 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 dangerous, and was small, but bled a
good deal, and the jury found that it was a grievous bodily
harm, it was holden that the conviction was riaht —R v
Cox, R. & R. 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.— Archhold, 667.
While the defendant was using threatening language lo a
third person, a constable in plain clothes came up and in-
terfered. The defendant struck the constable with his fist,
and there was a struggle between them. The constable went
M
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III
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162
OFFENCES AGAINST THE PERSON.
!
away for assistance, and was absent for an hour ; he changed
his plain clothes for his uniform and returned to defen-
dant's house with three other constables. 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 constables ran upstairs to take hiin, and he
wounded one of them in the struggle that took place. Held,
upon a case reserved, that the apprehension of the prisoner
at the time was unlawful, and that he could not be convicted
of wounding the constable with intent to prevent his lawful
apprehension. — R. v. 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. — R.
V, Roxhurg, 12 Cox, 8.
^ Upon an indictment for the felony under this clause,
the jury may find a verdict of guilty of an attempt to com-
mit it. — Sec. 183, Procedure Act.
■ A verdict of common assault may also be found. — Sec.
191, Procedure Act.
And, if the prosecutor fail in proving the intent, the
defendant, in virtue of sec. 189 of the Procedure Act, may
be convicted of the misdemeanor of unlawfully wounding,
and sentenced under said sect. — Archhold.
And where three are indicted for malicious wounding
with intent to do grievous bodily harm, the jury may con-
vict two of the felony and the third of unlawfully wound-
ing. — R, \, CunninghaTn, Bell, C. C. 72.
Where a prisoner was indicted for feloniously wounding
with intent to do grevious bodily harm.
Held, that the intention might be inferred from the act.
—The Queen v. LeDante, 2 0. <(: 0. (N. 8.) 401.
, L. was tried on an indictment under 32-33 V., c. 20,
'ti -
.JH.
OFFENCES AGAINST THE PERSON. 163
containing four counts. The first charged that he did
unlawfully, etc, kick, strike, wound and do grevious bodily
harm to W., with intent. &c, to maim ; the second charged
assault as in first with intent to disfigure ; the third
charged intent to disable ; the fourth charged the intent
to do some grevious bodily harm. The prisoner was
lound guilty of a common assault. Held, that L. was
rightly convicted, sec. 51 of the act. 32-33 V c 20
authorising such conviction.-^ Queen v. Laakey, IP.
& B. (N. B.) 194. ^
An indictment for doing grevious bodily harm, which
alleged that the prisoner did " feloniously " stab, cut and
wound, etc., instead of alleging, in the terms of the 17th
section of 32-33 V., c. 20, that he did -unlawfully" and
" maliciously " stab, etc, is good.
A defective indictment is amendable under 32-33 V c
29, s. 32, and any objection to it for any defect apparent
on the face thereof must be taken by demurrer or motion
to quash the indictment before the defendant has pleaded •
and not afterwards.— TAe Queen v. Flynn, 2 P. S B,
14. Every one who unlawfully and maliciously wounds or inflic ts
any gnevous bodily harm upon any other per'on, either with or
r r o'u ""^'" r .'"^^'•"'"^"'' '« g'"'^-- -' - nn'sdemeanor and
Indictment for unlawfully wounding one J N
unlawfully and maliciously did wound {wound or injlicf
any gmevoua bodily harm upon) against the form
{Add a count chaiging that the defendant " did inflict
grievous bodily harm upon J. N:')—Archbold, 668.
The act must have been done maliciously. Malice
would m most cases be presumed.)— 3 Burn 754 • ft v
Martin, 14 Cox, 633. ' '
4
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164
OFFENCES AGAINST THE PERSON.
But general malice alone constitutes the offence.
Malice against the person wounded is not a necessary
ingredient of the offence. So, if any one, intending to
wound A., accidentally wounds B., he is guilty of au
offence under this clause. — M. v. Latimer, 16 Cox, 70.
See remarks under sees. 11 and 13, ante.
Upon an indictment for assaulting, beating, wounding
and inflicting grievous bodily harm, the prisoner may be
convicted of a common assault. — jR. v. Oliver, Bell, C.
a 287.
Upon an indictment charging that the prisoner "unlaw-
fully and maliciously did assault one H. K., and did
then and there unlawfully and maliciously kick and
wound him, the said H. E., and thereby then and there
did unlawfully and maliciously inflict upon the said H. R.
grievous bodily harm, against" the jury may return
a verdict of guilty of a common assault merely. — M. v.
Yeadon, L. & C. 81.
In a. V. Taylor, 11 Cox, 261, the indictment was as
follows: — "That Taylor on unlawfully and
maliciously 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 ver-
dict of common assault, and upon a case reserved, the
conviction was affirmed.
In B. V. Canwell, 11 Cox, 263, a verdict of common
assault was also given upon an indictment containing
only one count for maliciously and unlawfully inflicting
grievous bodily harm, and the conviction was affirmed,
upon a case reserved.
In E. V. Ward, 12 Cox, 123, the indictment charged
a felonious wounding with intent to do grevious bodily
OFFEMCES AGAINST THE PEKSUN. 165
harm. The jury returned a verdict of unlawful wounding
under 14-15 V, c. 19. s. 5 (sec. 189 of the Procedure
Act) Upon a case reserved, it was held that the worda
tmhciomly 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 Magazine,
.^79, censures severely this ruling. According to him a
new offence, that of unlawful wounding, was created by
that clause, and the word maliciously had been purposely
omitted from it. In a preceding number of the same
magazme, p. 269, an anonymous writer attacks the
decision in Ward's case from another point of view.
The shooting was certainly proved not to have been
intended to strike the prosecutor, but the Court, by
twelve judges against three, found that there was proof
of malice sufficient to suppoft the conviction. On this
appreciation of the facts of the case, this anonymous
writer censures the judgment, at the same time admit-
ting Its correctness, so far as the Court held the mali-
(yiously as necessary as the unlawfully under this clause,
though the word maliciously had been dropped in the
statute.
The defendant may be found guilty of the attempt to
commit the misdemeanor charged under sec. 183 of the
Procedure Act.
And if, upon the trial of any person for any misdemea-
nor, It appears that the facts given in evidence, while
they include such misdemeanor, amount inlaw to a felony,
such person shall not, by reason thereof, be entitled to
be acquitted of such misdemeanor (and the person tried
for such misdemeanor, if convicted, shall not be liable to
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166
OFFENCES AGAINST THE PERSON.
II' ■■!
be afterwards prosecuted for felony, on the same facts),
unless the Court before which such trial is had thinks fit,
in its discretion, to discharge the jury from giving any
verdict upon such trial, and to direct such person to be
indicted for felony, in which case such person may be
dealt with in all respects as if he had not been put
upon his trial for such misdemeanor. (Procedure Act, sec.
184.)
16. Every one who, with intent thereby to enable himself or any
Other person to commit, or with intent thereby to aeeist any other
person in committing any indictable offence, or by any means what-
soever attempts to choke, suffocate or strangle any other person, or
by any means calculated to choke, suffocate or strangle, attempts to
render any other person insensible, unconscious or incapable of resis-
tance, is guilty of felony, and liable to imprisonment for life, and to
be whipped.— 32-33 V., c. 20, s. 20. 24-25 F"., c. 100, ». 21, and 26-27
v., c. 44, Imp.
IndictTmnt, — feloniously and unlawfully did
attempt by then {state the rmans or by any means what-
soever) to choke, suffocate and strangle one J. N. (sufo-
cate or strangle any person, or ), with intent thereby
then to enable him, the said A. B., the monies, goods, and
chattels of the said J. N., from the person of the said J. N.,
feloniously and unlawfully to steal, take and carry away,
against the form (Add counts varying fJie statement
of the overt acts and of the intent.)— A'^-^hbold, 669.
: This clause is new, and is directed ur,u attempts
at robbery which have been accompanies ,.. Vnce to
the throat. — Oreaves, Cons. Acts, 54.
The clause gives the intent " to commit any indictable
offence ;" that is to say, either a misdemeanor or a felony.
In certain cases, a verdict of common assault may be
given upon an indictment for this felony. — Procedure
Act, sec. 191.
OFFENCES AGAINST THE PERSON,
16Y
16. Every one who, with intent thereby to enable himself or any
other person to commit, or with intent thereby to aHsist any other
person in committing any indictable offence, unlawfully applies or
administers to, or causes to be taken by, or attempts to apply or ad-
minister to, or attempts or causes to be administered to or taken by
any person, any chloroform, laudanum or other stupefying or ovei^
powering druj?, matter or thing, it guilty of felony, and liable to impris-
onment for life, and to be whipped— 32-33 V., c. 20, j. 21 .
Indictment— feloniously and unlawfully did
apply and administer to one J. N. (or cause ) certain
chloroform with intent thereby (intent as in the laet
precedent).
If it be not certain that it was chloroform, or laudanum,
that was administered, add a count or counts stating it to
be *' a certain stupefying and overpowering drug and matter
to the jurors aforesaid unknown." Add also counts vrrying
the intent if necessary.
As to what constitutes an " administering, or attempting
to administer." see remarks under sects, 8 and 11, ante.
17. Every one who unlawfully an.l maliciously administers to, or
causes to be administered to or taken by any other person, any poison
or other destructive or noxious thing, so as thereby to endanger the
life of such person, or so as thereby to inflict upon such person any
grievous bodily harm, is guilty of felony, and liable to ten years' im-
prisonment.— 32-33 v., c. 20, s. 22. 24-25 F., c. 100, *. 2H, Imp.
See under next section.
18. Every one who unlawfully and maliciously administers to, or
causes to be administered to or taken by any otiier person, any poison
or other destructive or noxious thing, with intent to injure, aggrieve
or annoy such person, is guilty of a misdemeanor, and liable tolhree
years' impri8onment.-32-33 V., c. 20, s. 23. 24-26 V., c. 100, *. 24,
Imp.
Under an indictment under sec. 17, the jury may find
prisoner guilty of offence provided for in sec. 18.— Sec. 190,
Procedure Act.
Indictment for admitiisteririg poison so as to endan-
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168
OFFENCES AGAINST THE PERSON.
ger 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 by J. 2f. 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 des-
tructive thing, (or a ceHain 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.
Administering cantharides to a womaft 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. — E. v.
Wilkins, L. & C. 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. 18, yet if it does in fact inflict
grievous bodily harm, this amounts to a felony under
section ll.—Tulley v. C(yn^, 10 Cox, 640,
But to constitute this offence, the thing administered
must be noxious in itself, and not only when taken in
excess.— -i?. v. Hennah, 13 Cox, 547.
1». Every one who, being legally liable, either as a husband,
pareii t, guardian, or committee, master or m istresa, nurse or otherwise,
to provide for any person aa wife, child, ward, lunatic or idiot,
apprentice or servant, infant or otherwise, necessary (ood, olothing
ro lodging, wilfully and without lawful excuse, refuses or neglects to
provide the same, or unlawfully or maliciously does, or causes to be
done, any lx)dily harm to any such apprentice or servant, so that the
life of such apprentice or servant is endangered, or the health of such
apprentice or servant has been, or is likely to be, permanently injured,
is guilty of a misdemeanor, and liable to three years' imprisonment :
OFFENCES AGAINST THE PERSOW.
169
or neJwMn P'""*'"''"" ^^''^y P«"«» »n<i«r tM- section, for refu«ing
irrr'^ir;:: ';;r 2^^^^^^ '"• ''' •• ^^- ^^ ^- ^-
The words in italics are not in the Imperial Statute.
Ihey were in the bill as introduced in the House of
Lords, but were struck out by the Commoua.-Greaves,
Cons. Acts, 56.
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, necessary food (clothing or lodging), unlawfully,
wilfully and without 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 w hkely to he permanently hijured) against the
. "" (^^"^ ^^"^^^ varying the statement of the
injury sustained.)
Prove the apprenticeship; if it was by deed, by pro-
duction and proof of the execution of the deed, or in case
It be m 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
legaUiability of the defendant to provide the prosecutor
with necessary food, clothing or lodging will be inferred
even if it be not expressly stipulated for, from the appren^
ticeship itself. Prove the wilful refusal or neglect of the
defendant to provide the prosecutor with necessary
food, etc.. as stated in the indictment. Whether it be
necessary to prove that by such neglect the prosecutor's
life was endangered, or his health was or was likely to be
!K
II
170
OFFENCES AGAINST THE PERSON.
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 endangered, or, etc.,"
apply to all the preceding mutter, such proof will 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 casa
may be, and to be pr.-pared with evidence to sustain it.
It would seem indeed to be the better opinion, that the
words " so that, etc.," override all the preceding matter,
otherwise a mere single wilful refusal to provide a dinner
would be within the clause. Upon an indictment for
unlawfully and maliciously assaulting an apprentice or
servant, it is clear that such allegation and proof are
necessary. — Archbold.
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 infant 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 :
Held, that neither count was proved, as it was not enough
that the prisoner could have obtained the food on applica-
tion to the guardians, and that it is doubtful whether the
second count is good in law. — R. v. Mugg, 12 Cox, 16.
It is to be remarked that the indictment in that case
was under the common law, as, in England, the statute
OFFENCES AGAINST THE PERSON.
171
applies only to masters and servants or apprentices. By
tl.3 common law, au indictment lies for all misdemeanors
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, for whom
the defendant is obliged by duty to provide, so as thereby
to injure its health.
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 injury. 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.— iJ. v. Chandler^ Dears. 453 ; M. v. Hogan, 2
Den. 277; R. v. Philpott, Dears. 145. But these and
similar cases, are no authorities under our present statute,
in Canada.
In an indictment under this section, it is not necessary
to allege that the defendant had the means and was able
to provide the food or clothing, nor that his neglect to
do so endangers the life or affects the health of hi.s wife.
—E. V. Smith, 2 L. N. 247.
A verdict of assault is legal on an indictment under this
section charging bodily harm.-— i2. v. Bissonnett. Ram-
say's App. Cos. 190.
In an indictment under sec. 19, it is not necessary to
allege that by the refusal and neglect of the defendant
to supply the food necessary, etc, to his wife, her life
had been endangered, or her health permanently injured.—
R. V. Scott, 28 i. G. J. 264. Contrd.— R. v. Maker,
7 L. N. 82. See R. v. Namiith, 42 U. C. Q. B. 242.
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172
OFFENCES AGAINST THE FERSON.
Held, Armour, J. dissenting, that the evidence of a wife
is inadmissible on the prosecution of her husband for
refusal to support her under 32-83 V., c. 20, s. 25. (See
now, sub. sect. 2, ante.) The Queen v. Bissell, 1 0. R. 514.
20. Every one who unlawfully abandons or exposes any child,
bein^ 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 i'ljured, is guilty of a misdemeanor, and liable to three
years' imprisonment.— .S2-33 V., c. 20, «. 26. 24-25 F., e. 100, s. 27,
Imp,
Oreavea' Note. — This clause is new. It is intended
to provide for cases where children are abandoned or ex-
posed under such circumstances that their lives or health
may be, or be likely to be, endangered. See R. v.
Eogan, 2 Den. 277 ; R. v. Cooper, 1 Den. 459 ; 2 C <fc
K. 876 ; R. V. Philpot, 1 Dears, 179 ; R. v. Gray, 1
Dears. & B. 303, which show the necessity for this
enactment.
Indictment. — unlawfully did abandon and
expose a certain child called J. N., then being under the
age of two years, whereby the life of the said child was
endangered (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 indict-
ment under it, it is only necessary to prove that the defen-
dant wilfully abandoned or exposed the child mentioned in
the indictment ; that the child was then under two years
of age, and that its life was thereby endangered, 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 child 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 child Into
0FFENCE8 AGAINST THE PERSON.
173
a hamper, wrapped up in a shawl, and packed with shav-
ings and cotton wool, and A., with the connivance of B.,
took the hamper to M., about four or live 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 send it to G. by the next train,
which would leave M. in ten minutes from that time. She
said nothing us to the contents of the hamper, which was
addressed "Mr. Ca.r'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 delivered at
ic« address the same evening. The child died three weeks
afterwards, from causes not attributable to the conduct of
the prisoners. On proof of these facts, it was objected for
the prisoners that there was no evidence that the life of
the child was endangered, and that there was no abandon-
ment and no exposure of the child within the meaning of
the statute. The objections were overruled and the pris-
oners found guilty. Held, that the conviction should be
affirmed.— iJ. v. Falkingfiam, 11 Cox, 475.
A mother of a child under two years of age brouaht it
and left it outside the father's house (she not living^with
her husband, the father of it). He was inside the house
and she called out "Bill, here's your child; I can't keep
it. I am gone." 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 road, cold and stiff;
but, by care, it was restored to animation. Held, on a
174
OFFENCES AGAINST THE PERSON.
ease 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
8tatute.~i2. V. White, 12 Cox, 83.
21. Every one who, unlawfully and maliciouBly, by the explosion
of gunpowder or other explosive substance, burns, maimR, disfigures,
disables or does any grievous bodily harm to any person, is guilty of
felony, and liable to imprisonment for life. — ^32-33 F., c. 20, s. 27.
24-25 r.,c. 100, s. 28, Imp.
22. Every one who, with intent to burn, maim, disfigure, or disable
any person, or to do some grievous bodily harm to any person, un-
lawfully and maliciously causes any gunpowder or otlier 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 dan-
gerous or noxious thing, or puts or lays at any place, or casts or
throws at or upon, r otherwise applies to any person^ any corrosive
fluid, or any destructive or explosive substance, and whether any
bodily harm is eflfected or not, is guilty of felony, and liable to im-
prisonment for life.— 32-33 r., c. 20. *. 28. 24-25 F., c. 100, s. 29, Imp.
23. Every one who unlawfully and maliciously places or throws
in, into, upon, against or near any building, ship or vessel, any gun-
powder or other explosive substance, with intent to do any bodily
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
liable to fourteen years' imprisonment. — 32-33 F, c. 20, *. 29. 24-25
F. c. 1,00, s. 30, Imp.
The words in italics are not in the Imperial Act.
By Sec. 5 of the Procedure Act, no judge of the sessions
nor recorder can try any offence against the above three
sections.
Indictment for burning by gunpowder — felo-
niously, unlawfully and maliciously, by the explosion of a
certain explosive substance, that is to say, gunpowder, one
J. N. did burn; against the form (Add counts,
varying the atatement of the injury, aocording to circum-
stances. ) — Archbold.
OFFENCES AGAINST THE PERSON.
175
^ Indictment for sending an explosive substance with
intent, etc feloniously, unlawfully and maliciously
did send (or deliver to. or cause to he taken or received
hy) to one J. N". a certain explosive substance and dan-
gerous and noxious thing, to wit, two drachms of fulmi-
nating silver, and two pounds weight of gunpowder, with
intent in so doing him the said J. N. thereby then to burn
(maim, disfigure or disable, or do some grievous bodily
harm) against (Add counts varying the injury
and intent.) — Archbold.
Indictment for throwing corrosive fiuid, with intent,
^*^ feloniously, unlawfully and maliciously did
cast and throw upon one J. N. a certain corrosive fluid
to wit, one pint of 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.
In R V. Crawford, 1 Z>en, 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 face and into one of
his ears, and ran off 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 convictioil
was right.
In R. V. Murrow, 1 Moo. C. C. 456, it was held, where
the defendant threw vitriol in the prosecutor's face, and so
wounded him, that this wounding was not the " wounding"
meant by the 9 Geo. 4, c. 31, s. 12.— ArchhoU, 665; but
It would now fall under this statute—The question of
intent is for the jury.— iJ. y. Saunders, 14 Cox, 180.
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OFFENCES AGAINST THE PEKSON.
Indictment charged defendants with having unlawfully,
knowingly and willingly deposited in a room in a lodging
or boarding house (described) in the city of Halifax, near
to certain streetfe «ji thoroughfares and in close proximity
to divers dwelling houses, excessive quantities of a danger-
ous and explosive substance called dynamite, in excessive
and dangerous quantities, by reason whereof the inhabi-
tants, etc., were in great danger.
Held, good, without alleging carelessness, or that the
quantities deposited were so great that care would not pro-
duce safety.— T/ie Queen v. Holmes, et al, 5 It. S G.
(N. S.)4t98. See c. 150, Rev. Stat.
24. Every one who sets or places, or causes to be set or placed,
any spring-gun, man-trap, or c ler engine calculated to destroy
human life or inflict grievous bo iily harm, with the intent that the
same or whtreby the same may destroy or inflict grievous bodily
harm, upon any trespasser or other person coming in contact there-
with, is guilty of a misdemeanor, and liable to three years' imprison-
naent;
2. Every one who knowingly and wilfully permits any such spring-
gun, man-trap or other engine which has been set or placed by some
other person, in any place which is, or afterwards comes into his pos-
session or occupatior to continue so set or placed shall be deemed to
have set or placed «uch gun, trap or engine, with such intent ad
aforesaid ;
3. Nothing in this section contained shall extend to make it illegal
to set or place any gin or trap such as is usually set or placed with
the intent of destroying vermin.— 32-33 F., c. 20, *. 30. 24-25 V., c.
100, *. 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 engine
which shall be set or placed, or caused or continued to be
set or placed, in a dwelling-house for the protection
thereof."
OFFENCES AGAINST THE PERSON.
177
Indutment-. unlawfully did set and place, and
caused to be set and placed, in a certain garden situate
•;• * °^^*^^ spring-gun which was then loaded and
charged with gunpowder and divers leaden shot, with
intent that the said spring-gun, so loaded and charged as
aforesaid, should inflict grievous bodily harm upon any
trespasser who might come in contact therewith, against.
Prove that the defendant placed or continued the
spring-gun loaded in a place where persons might come in
contact with it ; and if any injury was in reality occasioned
state It m the indictment, and prove it as laid. The intent
can only be inferred from circumstances, as the position of
the gun, the declarations of the defendant, and so forth •
any injury actually done will, of course, be some evidenc^
of the intent. — Amibold.
A dog-spear set for the purpose of preserving the game
is not within the statute, if not set with the intention to
do grievous bodily harm to human beings.— 1 Rum. 1052.
The instrument must be calculated to destroy life or
cause grievous bodily harm, and proved to be such; and
if the prosecutor, while searching for a fowl among some
bushes in tlie defendant's garden, came in contact with a
wire which caused a loud explosion, 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 engineer substance
which caused the explosion, and it was not enough that
the instrument was one calculated to create alarm —
1 Ruaa. 1053.
25. Every one who, with intent to injure or to endanger the safety
of any person travelling or being upon any railway, unlawfully and
maliciously puts or throws upon or across such railway, any wood.
I
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178
OFFENCES AGAINST THE PERSON.
stone, or other matter or thing, or unlawfully and maliciouely takes
up, reinovea or displaces any rail, railway switch, sleepers, or other
matter or thing belonging to such railway, or injures or destroys any
tracks bridge or fence of such railway, or any portion thereof, or
unlawfully and maliciously turns, moves or diverts any point or other
machinery belonging to such railway, or unlawfully and maliciously
makes or shows, hides or removes any signal or light upon or near to
such railway, or unlawfully and maliciously does or causes to be
done any other matter or thing, with such intent, is guilty of felony,
I v". " '•''■ to imprisonment for life.— 32-33 V., c. 20, s. 31. 42 V., c.
^ , art, and 8. 89. 44 V., c. 25, ««. 116, part, and 117. 24-25
v., c .00, *. 32, >p.
26. Every one who 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 truck forms part, is guilty
of felony, and liable to imprisonment for life. — 32-33 V., c. 20, s. 32.
24-25 v., c. 100, *. 33, Imp.
27. Every one who, by any unlawful act, or by any wilful omission
or neglect of duty, endangers or causes to be endangered the safety of
any person conveyed or being in or upon a railway, or aids or assists
therein, is guilty of a misdemeanor, and liable to imprisunmcnt for
any term less than two years.— 32-33 V., c 20, i. 33. 24-25 V., c. 100,
8. 34, Imp.
The words " of duty " iu this last section are not in
the English Act.
Indictment for endangering by wilful neglect the
safety of railway 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, against the form
OFFENCES AGAINST THE PERSON.
170
(Add counts varying the statement of defendant's duty,
etc.) — Archbold.
An acquittal of the felony under sec. 25 is no bar to au
indictment for the misdemeanor of sec. 27.— iJ. v.Oilmore
15 Cox, 85.
See post, remarks under sec. 37, c. 168. The forms of
indictments there given may form a guide for indictments
under the present section.
Prove that it was the duty of the defendant to turn the
points ; that 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 com-
pany). — Archbold.
In R. V. Holroyd, 2 M, and Rob. 339, it appeared
that large quantities 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 rubbish had been
accidentally dropped on the railway : Maule, J., told the
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 rub-
bish on the rails expressly with the view to upset the 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 " wilfully " used
in the statute, the learned judge added "he should con-
t", '
180
OFFENCES AGAINST THE PERSON.
aider the act to have been wilfully done, if the defenr^nt
intentionally placed the rubbish on the line, knowing .hat
it was a substance likely to produce an obstruction ; if, for
instance, he had done so in order to throw upon the com-
pany's officers the necessary trouble of removing the rub-
bish." This decision may afford a safe guide to the meaning
of the term wilful in this clause. Oreaves, Cons. Acts, 62,
on 8. 34. (27 of our statute). — In the other clauses, the
word wilfully is now replaced by unlawfully,
On s. 33 (2t) of our statute.) — Greaves says ; ('Cons,
Acts, 61J " The introduction of the word at extends this
clause to cases where the missile fails to strike any engine
or carriage. Other words were introduced to meet cases
where a person throws into or upon one carriage of a train,
when he intended to injure a person being in another car-
riage of the same train, and similar cases. In M. v. Cou7i,
6 Cox, 202, the prisoner was indicted for throwing a stone
against a tender with intent to endanger the safety of per-
sons on the tender, and it appeared that the stone fell on
the tender, but there was no person on it at the time, and
it was held that the section was limited to something
thrown upon an engine or carriage having some person
therein, and consequently that no offence within the
statute was proved ; but now, this case would clearly come
within this clause."
In 72. V. Bradford, Bell, C. C, 268, it was held that a
railwuy not yet opened for passengers, but used only for
the carriage of materials and workmen, is a railway within
the statute.
In B. V. Bowray, 10 Jur. 211, 1 Ru^s. 1058, on an
indictment for throwing a stone on a railway, so as to
endanger the safety of passengers, it was held that the
intention to injure is not necessary, if the act was done
OFFBNOKS AGAINST THE PERSON. 181
Wilfully, and its effect be to endanger the safety of the
persons on the railway. ^
Jli'- "f """''^'y «"" the defendant should have
entertained any feeling of n,aUce against the railway com!
pany or agamst any person on the train ; it is quit*
enough to support an indictment under the statute, if tL^
act was done mischievously, and with a view to cai an
obstruction of a train._ie. v. Upton. 5 Cox. 298.
»Jr ^',""."' "'*'" '^'^'^^ "f » ™»™y company
and began playing with a heavy cart, which w'ls nea'r U^
tne Having started the cart, it ran down an embankmen
tif. . -T'"'- ^"^ ^^ '*<> t" -divert its course ■
the other cried to him "Let it go." The cart ran on wTtl
of posts and rails, and over a ditch on to the railway • it
tested so close to the railway lines as to obstruct any d -
mges passing upon them. The boys did not attempt to
remove It: Mdd. that as the first act of moving the cart
was a ti.s,«ss. and therefore an unlawful act, and asle
Juiy found that the natural consequence of it ;as tha the
cart ran ttough the hedge and so on to the railway the
cl! Zt ^"'^'^' °""™'"*- * ^- ^'"^'-^^. 11
Miam^nt «»*r sec. 26 BerkUre (to witi
The Juroj. for onr Udy the Queen upon their oati present
tha on the>s« day of May. in the year of our Lord 1852
at the parish of OoHng. in the eovnty ot B,rks. A. B
feloniously, unlawfully, and maliciously did cast (cos/
throw, or ca^ to fall o. strike a^air^, into or «U)
truck), then and there used upon a certain railway there
^ ed "Tke Great Western Rail^y;' a certain l^
piece of wood (any wood. Oone. or other ,^tter or
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OFFENCES AGAINST THE PERSON.
thing) with intent thereby then and there to endanger
the safety of one C. 1)., then and there being in (in or
upon) the said carriage (engine, tender^ carriage or truck)
again t the form of the statute in such case made and pro-
vided.
28. Every one who, having the charge of any carnage or vehicle,
l>y wanton or furious driving, or racing or other wilful misconduct, or
by wilful neglect, does or causes to be done any bodily harm to any
person whomsoever, is guilty of a misdemeanor, and liable to impris-
onment for any term less than two years.— 32-33 V., c. 20, *. 34. 24-
25 r,c. 100, 8. 35, Imp.
Indictment. — being then a coachman, and then
having charge of a certain carriage and vehicle called an
omnibus, unlawfully did, by the wanton and furious driv-
ing 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 — Archhold, 677.
This section includes all carriages and vehicles of every
description, both public and private. Wilful means voluvr-
tary, — Greaves, Cons. Acts, 63.
29. Every one who cuts or makes, or causes to be cut or made for
the purpose of harvesting or obtaining ice for sale or use, any hole,
opening, aperture or place, of sufficient size or area to endanger
human life, through the ice on any navigable or other water open to
or frequented by the public, and leaves such hole, opening, aperture
or place, while it is in a state dangerous to human life, whether the
same is frozen over or not, unguarded and uninclosed by a guard or
fence of sufficient height and strength to prevent any person fi-om
accidentally riding, driving, walking, skating or falling therein, is
guilty of a misdemeanor, and liable to be punished by fine or impris-
onment, on summary conviction, before any justice of the peace or
district magistrate, having jurisdiction in any city, judicial district or
county within which, or on the borders of which, such navigable or
other water is wholly or partly situate.— 49 V., c. 63, s. 1.
30. Every one who is the owner, manager or superintendent of
any abandoned or unused mine or quarry or property upon or in
OFFENCBS AGAINST TUE PERSON,
188
which any excftvation in search of mines or quarries has been or is
hereafter made of a sufBcient area and depth to endanger human life,
and who leaves the same unguarded and un inclosed by a guard or
fence of sufficient height and strength to prevent any person from
accidentally riding, driving, walking or falling therein, is guilty of •
misdemeanor, and liable to be punished by fine or imprisonment or
both, on summary conviction before any justice of the peace having
jurisdiction in the locality in which the said mine or quarry is situate.
-49 v., c. 63, *. 2.
31. If within five days after conviction for any offence referred to
in either of the two sections next preceding, a suitable guard or fence
is not constructed around or over the said exposed opening, to con-
form to the provisions of the said sections, the person liable for such
omission may be again complained of and convicted for the said
offence, and the plea of a former conviction therefor shall not avail to
him as a relief from the said complaint and conviction.— 49 V., c 53
». 3. '
32. If any person loses his hfe by accidentally riding, driving,
walking, skating or falling into any such hole, opening, aperture or
place unguarded as is mentioned in either of the three sections next
preceding, the person or persons whose duty it was to guard such
hole, opening, aperture or place, in manner aforesaid, is guilty of
manslaughter. — 49 V., c. 63, s, 4.
33. Every one who, by any unlawful act, or by doing negligently
or omitting to do any act which it is hia duty to do, causes grievous
bodily injury to any other person, is guilty of a misdemeanor, and
liable to imprisonment for any term less than two years.— 32-33 V., c.
ao, a. 35.
This clause is not in the English Act. It is in the same
terms as s. 27, 'ute, except that this last one applies only
to passengers l>y railway endangered by the unlawful act
or neglect, or omission of duty.
An injury resulting from an omission does not subject
the person causing it to punishment, unless such omission
be unlawful. An omission is deemed unlawful whenso-
ever it is a breach of some duty imposed by law, or gives
cause to a civil action.— 27id Report Cr. L. Com. 14 May,
1846.
^
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184
OFFENCES AOAINST THE PERSON.
Mr. Starkie, ono of the English Commissionora, in a
separate report, objected Htrongly to such an enactment,
and the framers of the Imperial Statutes have thought
proper to leave it out.
ASSAULTS.
84. Every one who asfiaults any person with intent to commit any
mdictal.Ieoffence.-orasflauIu^.resistHor wilfully obetructfl any revenue
or peace officer, or any officer seizing trees, logs, timber or other pro-
ducts thereof, in the due execution of his duty, or any person acting
in aid of such officer,-or assaults any person with intent to resist or
prevent the lawful apprehension or detainer of himself, or of any
other person for any offence,— or assaults, resists or wilfully obstructs
any person in the lawful execution of any process against any lands
or goods, or m making any lawful distress or seizure, or with inUnt
to rescue any goods taken under such process, distress or seizure, is
guilty of a misdemeanor, and liable to imprisonment for any term less
than two year8.-32-33 V., e. 20, s. 39. 43 V., c. 28, *. %b,part. 46
v., c. 16, a. 6, part, and c. 17, s. 66, part. 24-26 V., c. 100, s. 38, Imp
35. Every one who commits any assault which occasions actual
bodily harm, is guilty of a misdemeanor, and liable to three year's
imprisonment.— 32-33 F., c. 20, s. 47, part. 24-26 V., c. 100, * 47
Imp. ' '
36. Every one who commits a common assault is guilty of a
misdemeanor, and liable, if convicted upon an indictment, to one years'
imprisonment, and, on summary conviction, to a fine not exceeding
twenty dollars and costn, or to two months' imprisonment, with or
without hanJ labor.-32-33 F., c. 20, ,s. 43, pari, and 47, pari. 24-
25 v., c. 100, s. 42-47, Imp. ^
As to costs as an additional punishment. See 248 of
the Procedure Act.
On an indictment for assault and battery occasioning
actual bodily harm, the defendant is not a competent
witness on his own behalf under s. 216 of the Procedure
Act. — R. V. Richardson, 46 U. C. Q. B. 375.
Indictment for assaulting a peace officer in the exem.
tion of his duty, in and upon one J. N., then being
OFFENCES AGAINST THE PERSON.
186
a peace officer, to wit, a constable (any peace oficcr in
the execution ofhia duty, or any revenue officer in the
execution of 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 hira, the said J. N., so
being in the execution of his duty as aforesaid, did then
beat, wound and illtreat, and other wrongs to the said J.
N., then did, to the great damage of the said J. N., against
^^^ ^o'"™ (^(id a count for a common assault.)
•^Archbold.
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 persuraed, even in a case of
murder, that a man who has acted in a public capacity or
situation was duly appointed.— i?. v. Verelet, 3 Camp.
432 ; R. v. Gordon, 1 Leach, 615 ; Ry. Murphy, 8 a i
P. 297 ; R. v. Newton, 1 C. <i; K. 469 ; Taylor, on Evi-
dence, per. 139, 431. Prove that J. N. was in the due
execution of his duty, and the assault. If you fail in pro-
ving 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. v. Forbes 10
Cox, 362.
Revenue officers are not included in the corresponding
clause of the English Act, assaults on them being, there,
otherwise provided for.—Oreaves, Cons. Acts, 65.
Indictment— in and upon one J. N. unlaw-
fully did make an assault, and him the said J. N. did beat
• Pj
ii
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1
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1
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5
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fi
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186
OFFENCES AGAINST THE PERSON.
wound and ill-treat with intent him the said J. N. feloni-
ously, 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 comnwa (mault:)—Archhold.
Every attempt to commit a felony against the person 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 convic-
ted of the felony. If you fail proving the intent, but
prove the assault, the defendant may be convicted of the
common assault.— ^rcAftoid
IndictmerU for an cmauU to prevent ^j^reat in
and upon one J. N. did make an assault, and him,"th6
said J. N., did then beat, wound and iU-treat with intent
in so doing to resist and prevent {redst 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(ymtfor common
assault).— Archbo/d, 685,
It must be stated and proved that the apprehension
was lawful. See M. v. 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 ju8tifiable,_and if, in a case,
where a warrant is necessary, the officer making an arrest
has not the warrant with him, the party whom he tries to'
arrest, resists and assaults him, he cannot be convicted of
an assault on an officer in the due execution of his office.
—Codd V. Cabe, 13 Cox, 202.
A common assault may be prosecuted either by indict-
ment or under the Summary Convictioiis Act: 1 Burn
319.— 1 Muss, 1035. '
OFFENCES AGAIKST THE PERSON.
187
1 ', tJi-il
If the charge is before the magistrate on a legal
complaint, and the evidence goes to prove an offence
committed which he has no jurisdiction to hear and
determine, as if, on a complaint of an assault, the evidence
go to show that a rape or assault with intent to commit a
felony has been committed, he may, if he disbelieves the
evidence as to the rape or intent, convict as to the residue
of it of an Assault.— WiMnaon v. Button, Z B, <& 8
821 ; AtKm, IB.S Ad. 382.
In this last case Lord Tenterden held that the magis-
trate had/ouTM? that the assault was not accompanied by
any attempt to commit felony, and that, quoad, hoc, his
decision was final.
In R. v. Walker, 2 M. dh Bob. 446, Coltman, J., gave
the same interpretation to the clause.
In B. v. ElHngton, 1 B. & 8. 688, it was held that
the magistrate's certificate of dismissal is a bar to an
indictment for an unlawful assault occasioning actual
bodily harm, arising out of the same circumstances
8ee Wemysa v. Hopkins, L. B. 10 Q. B. 378.
In B. V. 8tanton, 5 Cox, 324, Erie, J., said that in his
opinion, a summary conviction before justices of the
peace (in England, the law requires two) is a bar to an
indictment for a felonious assault, arising out of the same
facts.
But a summary conviction for assault is no bar to a
8ubse(^uent indictment for manslaughter, upon the death
of the man assaulted, consequent upon the same assault.
~~B. V. Morris, 10 Cox, 480; B. v. Basset, Gh^eaves,
Coils. Acts, 72.
Where an assault charged in an indictment and that
referred to in a certificate of dismissal by a magistrate
appear to have been on the same day, it is prvmd facie
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188
OFFENCES AGAINST THE PERSON.
evidence that they are one and the same assault; and it is
incumbent on the prosecutor to show that there was a
second assault on the same day if he alleges that such is
the case. The defendant having appeared before the
magistrate, the recital in the certificate of the fact of a
complaint having been made and of a summons having
been issued is sufficient evidence of those facts — iJ v
Weatley, 11 Cox, 139.
When a question of title to lands arises before him,
the magistrate's jurisdiction is at an end, and 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.— i2. v. Pearson, 11 Cox, 493.
A person making a bond fide claim of right to be present
as one of the public in a law court at the hearing of a suit
IS not justified in committing an assault upon a police
constable and an official who endeavor to remove him,
Such a claim of right does not oust the jurisdiction of the
magistrate who has to try the charge of assault, and he
may refuse to allow cross-examination and to admit
evidence in respect of such a claim.— i?. v. Eardley, 49
«/ • Jr. o 1 ,'
Indictment for an assault occasioning actual bodily
^;f — 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 occasioning to
the said J. K actual bodily harm, and other wrongs to the
said J. N. then did, to the great damage of the said J. N.
against the form —Archhold.
Indictment for a common assault.-^ that C.
■^•' ^° t^® a<^ in and upon one A. B. an
assault did make, and him the said A. B. then and there
did beat, wound and ill-treat, and then and there to him
other wrongs and injuries did, against the form
OFFENCES AGAINST THE PERSON.
189
The defendant may be convicted of a common assault
upon an indictment for occasioning actual bodily hann.—
M. V. Olivr-r, Bell, C. C. 287 ; M. v. Yeadon, L. & G. 281.
The intent to do bodily harm, or premeditation, is not
necessary t convict upon an indictment under this
section ; thus a man who commits an assault the result
of which is to produce bodily hann 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.— -iJ. v. Sparrow, Bell, C. C. 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, with 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 present
ability, ot using actual violence against his person, will
amount to an assault. — 1 Burn, 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
have held that if it be not loaded it would be no assault
to present it and pull the trigger. -1 Burn, 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 indict-
ment for assault and battery, in which the assault is ill-
i!i^
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OFFENCES AGAINST THE PERSON.
laid, if the defendant be found guilty of the battery it is
sufficient. — 1 Hawkins, 110.
^ Mere words will not amount to an assault, though per-
haps they may in some cases serve to explain a doubtful
action. — 1 Burn, 309.
Tf a man strike at another, but at such a distance that
he cannot by possibQity touch him, it is no assault. But if
A. advances m a threatening attitude with his fists clench-
ed 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 particular moment
when A. was stopped, he was not near enough for his blow
to take QSec,t.—8tephen v. Meyers, 4 G. S 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.— iJeacZ v. 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.— Jfar^ir^
v. Shoppee, Z G. & P. 373.
Any man wantonly doing an act of which the direct
consequence is that another person is injured commits an
assault at common law, though a thii-d body is interposed
tvetween the person doing the act -.nd the person injured
Ihus to drive 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 a8sault.-l Burn 309- 1
RU88, 1021. * ' ^
OFFENCES AGAINST THE PERSON.
in
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 be-'
tween the ages of ten and twelve, or under ten years of age
If done with the girl's con sent, is not an assault.— 12 v'
Connolly, 26 U. C. Q. B. 317. If the girl is between 'ten
and twelve, the indictment 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 R^a. 933, 1023; R. v. MaH%n, 9 C <& P
213 ; R. V. Meredith, 8 G. <& P. 589 ; R. v. Cockburn
3 Cox, 643 ; R. v. Mehegan, 7 Cox, 145 ; R. v. Read, 1
JJen. 377; R. v. Johnston, 10 Cox, lU ; L. <& G 132 -R
V. Ryland, 11 Cox, 101 ; R. v. Guthrie, 11 Cox, 523*
By sec. 183 of the Procedure Act, the defendant may be*
convicted of the attempt to commit the offence charged upon
any indictment for any felony or misdemeanor, if the
evidence warrants it, and the fact that the girl consented
w immaterial, upon an indictment for an attempt to commit
the felony or the misdemeanor.— 72. v. Beale, 10 Cox 157
In R. v. Wollaston, 12 Cox, 182, Kelly, C. B., said]
" 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 18 done. Mere submission is not consent, for there
may be submission without consent, and while thefeelinog
are repugnant to the act being done. Mere submission's
totally different from consent. But m the present case
there was actual participation by both parties in the act
done, and complete mutuality : " and the defendant waa
acquitted as the boys, aged above fourteen, upon whom he
If
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OFFENCES AGAINST THE PERSON.
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
woman, under pretence of being her husband, he is guilty
of an assault.— jK. v. WUliama, 8 G. <& P. 286 ; E. v.
Saunders, 8 G. <£; P. 265.
In B. V. Mayers, 12 Gox, 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 R. v. Lock, 12 Gox, 244, upon a case reserved, it
was held, that the definition of an assault that the act must
be against the will of the patient, implies the possession of
an active will on his part, and, therefore, the mere submis-
sion by a child of tender years (eight years old) to an in-
decent assault, without any active sign of dissent, the
child being ignorant of t lie nature of the assault, does not
amount to consent so as to take the offence out of the
operation of criminal law.
In E. V. Woodhurst, 12 Gox, 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 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. v. Day,
2G.&P. 722 ; E. V. Nicholl, E.&R.l^Q; E. v. Eosinski,
1 Moo. G. G. 19 ; E. v. Gase, 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 ^ ablic vengeance, as it is a breach
OFFENCES AGAINST THE PERSON. 193
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 Blackdone, 518. It has
been supposed that every 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 Musb. 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 small 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 jostling
him out of the way.— 1 Hawkins, c. 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 of it, every man's person being sacred, and no other
having a right to meddle with it in any the slightest man-
ner.— 1 MiLss. 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 batterv
—1 Burn, 312. ^'
Whether the act shall amount to an assault must in
every case be coUected from the intention ; and if the injury
committed were accidental and undesigned, it will not
amount to a battery.— 1 Russ. 1025.
Striking a horse, whereon a person is riding and whereby
he is thrown, is a battery on him. and the rider is justified
m striking a person who wrongfully seizes the reins of his
horse, and in using all the violence necessary to make
him loose his hold. A wounding is where the violence
IS such that the flesh is opened; a mere scratch may con-
stitute a wounding.— 1 Bum, he. cit.
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OFFENCES AGAINST THE PERSON.
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 gt'ievoua bodily harm. —
Archboldj 660. ^
Even a mayhem is justifiable if committed in a party's
own defence. But a person struck has merely a right to
defend himself, and strike a blow in his defence, but he
has no right to revenge himself; and if, when all the
danger is past, he strikes a blow not necessary, he commits
an assault and battery. And in no case should the battery
be more than necessary for self defence. — 1 Burriy 312.
The mere offer of a person to strike another is sufficient
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 his wife,
a wife in defence of her husband, a parent in defence 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 or his 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 him from
fighting, or committing a breach of the peace, using no
unnecessary violence. If a man A^ithout authority attempt
to arrest another illegally, it is a breach of the peace, and
any other person 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
performance of any part of divine service, and turning
them out of church. — 1 Bum, 314.
OFFENCES AQAIN8T THE PEBSON.
196
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
wV have mutinously or violently misconducted them-
selves. — 1 Burn he. cit.
So might a military officer order a moderate correction
for disobedience of orders.—l Bum, loo. dt.
A party may justify a battery by showing that he com-
mitted it in defence of his possession, as, for instance, to
remove the prosecutor out of his close or hou8e,--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 from entering
the defendant's close or house,— to restrain him from
taking or destroying his goods,— from taking or rescuing
cattle, etc., 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
force, the owner of the close, or house, etc., must first
request the trespasser to depart, before he can justify
laying his hands on him for the purpose of removing him j
and even if he refuse, he can only justify so much force aa
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-defence, 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
h
196
OFFENCES AGAINST THE PERSON.
the subject, 1 Euss. 1028, has the following remarks : " It
should be obse -ved with respect to an assault by a man on
a party endeavoring to dispossess him of his land, that
where the injury is a mere breach of a close, in contempla-
tion of law, the defendant cannot justify a battery without
a request to depart ; but it is otherwise where any actual
violence is committed, as it is lawful in such a ase to
oppose force by force ; therefore, if a person break dr ^n the
gate, or come into a close vi et armia, the owner need not
request him to be gone, but may lay hands on him imme-
diately ; for it is but returning violence with violence. 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 offence ; but
a subsequent decision has established the contrary. 1
Ru88. 1030.
If a man, who suffers from gonorrhoea, has connection
with a woman, ignorant of his disease, and communicates
it to her, this is an assault occasioning actual bodily harm.
—K v, Sinclair, 13 Cox, 28 ; Contrd, Hegarty v. Shine
14 Cox, 124, 145.
There is a manifest distinction between endeavoring to
turn a person out of a house, into which he has previously
entered quietly, and resisting a forcible attempt to enter ; in
the first case a request to depart is necessary but not in
the latter.
In a criminal prosecution by the wife of 0., for assault
made upon her in entering her husband's house, the defence
ill'
onmcm against the persos. 197
was that ahe had no right to enter, and that her intention was
to take away property which she had no legal right to take,
but heUl^u a ease reserved, that this would not justify the
assaul there being no previous request n,ade of iL to
leave the house, uor any statement of her intention, or of
P. H7I B ^49 "''^"''"*' '^'^ '^"™" "■ °'^""- 3
An indictraent declaring that the prisoner did ■• beat
wound and m-treat" A. was he.', io be substantially an
.ndictment for a common assault.-ne Qu^n v. Shannon,
^o Jy. B. Mep. 1. '
RAPE.
or for a„,te„„ :itiTiZJ^'-Z^^T:Z"' T ''"'
24-25 r., c. 100, .. 48, Imp. y""-^ <"■. c. 60, .. 1, part.
38. Ev«7 one who a.M,ilt, «„y woman or girl with inlenl ,,.
comm,lrapei9guiltyofan,isden,eanor and li.hlnlTl
for any term not exceeding seven yearai^nd Int. , '"'P™™"'""'
36 v., c. 60, «. X.part. '"" '"■" y"'—
This last section is not in the Imperial Act
a sufficient proof of carnal knowledge.
Rape is not triable at quarter s°essions._Sec. 4 Proce
dure Act See Appendix ; „„te „„ Eape by Gmtves.
^"'^''''^'^- That A. B., on ia the year
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
carnally know; against the form of the statute in such
case made and provided, and against the peace of Out
Lady the Queen, her crown and dignity.-^«A6oW.
198
OFFENCES AGAINST THE PERSON.
Averment of woman's age unneceaaary. — 2 Bishop, Or.
Proc. 954.
Rape has been defined to be the having unlawful and
carnal knowledge of a woman, by force, and against her
will.— 1 Rma. 904.
To constitute the offence there must be a penetration,
or rea in re, in order to constitute the " carnal know-
ledge" which is a necessary part of this offence. But a
very slight penetration is sufficient, though not attended
with the deprivation of the marks of virginity. — 1 Ruaa.
912.
A boy under fourteen years of age is presumed by law
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. But on an
indictment for rape he may be found guilty of a common
assault.— -22. v. Brimilow, 2 Moo. C. C. 122. A husband
cannot be guilty of a rape upon his wife. The offence
of rape may be committed, though the woman at last
yielded U) the violence, if such her consent was forced by
fear of death or by duress.
It will not be any excuse that the woman was first
taken with 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 a common 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 favor 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, appears to be quite
exploded.—! Eiisa, 905.
OFFENCES AGAINST THE PEKSON.
199
Having carnal knowledge of a woman by a fraud which
induces her to suppose it is her husband does not amount
to a rape.— i2. v. Williams, 8 C. A P. 28C ; Ji. v.
Clarke, Dear. 397 ; 1 Rwta. 908; R. v. Barrow, 11 Cox,
191 ; R. V. Franda, IS U. C. Q. B. lU \ Coritrd, 11. v.
Dee, 15 Cox, 579. But it is an assault. See cases, ante,
under sec. 36. In England, now, by 48-49 V., c. 69, it
is rape.
A woman, with her baby in her arms, was lying in
bed between sleeping and waking, and her husband was
asleep beside her. She was completely 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 Criminal Appeal held that
a conviction for a rape upon this evidence could not
be sustained. — R. v. Barrow, 11 Cox, 19 1.
See, aho,R, v.J ackaon, R. & R. 487 ; and contrd R.
V. Young f 14 Cox, 114.
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 was in such a state of idiocy 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 him guilty. — R. v.
Barratt, 12 Cox, 498. In R. v. Fletcher, 10 Cox, '^48,
the law was so given, but the evidence of non-consent
was declared insufficient.
If a woman 'is incapable of resisting, it is no defence
that she did not resist.— i2. v. Fletcher, 8 Cox, 131 ; Bell^
C. G. 63 ; R. v. Gamplin, 1 Den, 89 j R. v. Flattery, 13
Cox, 388. If a man has or attempts to have connection
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200
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OFFENCES AGAINST THE PERSON.
with a woman while she ia asleep, it is no defence that
she did not resist, as she is then incapable of resisting.
The man can therefore be found guilty of a rape, or of
an attempt to commit a rape. — R. v. Mayers, 12 Cox, 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 concur
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 tl at women
only are proper examiners ; if the place where the act
was done were remote from inhabitants or passengers ; 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 others ; if without
being under the control or the influence of fear, she
concealed the injur;- for any considerable time after she
had the opportunity of complaining ; if the place where
the fact is alleged to have been committed 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 like circumstances,
affoid a strong though not conclusive presumption that
her testimony is feigned.— 1 Muss. 692.
The character of the prosecutrix, as to general chastity,
may be impeached by general evidence, as by showing
her general light character, etc., but evidence of connec-
tion with other persons than the prisoner cannot be
received.
In R. v. Hodgson, R. & R. 211, the w^oman in the
witness box was asked: Whether she had not before
OFFENCES AGAINST THE PERSON.
201
had connection with other persons, and whether she had
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 rulings were subsequently main-
tained 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 likes), you can-
not, if she deny it, call witnesses to contradict her.— i2.
V. Cockcroft, 11 Cox, 410; R. v. LaliherU, 1 S. C. R. 117.
But sb may be cross-examined as to particular acts
of connection with the prisoner, and if she denies them,
witnesses may be called to contradict her. — R. v. Martin,
6 C.(S;P. 562 ; R, v. Riley, 16 Cox, 191.
On the trial of an indictment for an indecent assault,
the defence being consent on the part of the prosecutrix,
she denied on cross-examination having had intercourse
with a third person, S. Held, that S. could not be
examined to contradict her upon this answer. This rule
applies to cases of rape, attempt to commit a rape, and
indecent assault in the nature of attempts to commit a
rape. — R. v. Holmes, 12 Cox, 137.
This decision is by the Court of Criminal Appeal,
composed of five judges, confirming R. v. Hodgson, and
R. V. Cockcroft. The case of R. v. RoUns, 2 M. and
Rob. 512 is now overruled. — Tayhr, 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 accusation
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OFFENCES AGAINST THE PERSON.
easily to be made and hard to be proved, and harder
to be defended by the party accused, though never so
innocent. — 1 Hale, 634.
Upon an indictment under section 37, the jury may
find the prisoner guilty of an attempt to commit a rape.
— i2. V. Hapgood, 11 Cox, 471 ; or may find a verdict of
common assault.
Under section 38, for an assault with intent to commit
rape (misdemeanor), the indictment may be as follows ;
in and upon one A. B., a woman (or girl), unlaw-
fully 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). — Archbold.
If upon trial for this misdemeanor, the felony under
section 37 be proved, the defendant is not therefore
entitled to an acquittal.— /Sfec. 184 Procedure Act,
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
intent; also, that in order to convict of assault with
intent to commit rape, the 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
so at all events, and notwithstanding any resistance on
her part.— i2. v. Loyd, 7 0. dt P. 318.
When a man is charged with rape, all that the woman
said to other persons in his absence shortly after the
alleged offence is admissible in evidence. — B. v. Wood,
14 Cox, 47. See E. v. little, 15 Cox, 319.
In E. V. Giason, 2 C. d: K. 781, it was held that an
OFFENCES AGAINST THE PERSON.
203
acquittal on an indictment for a rape could not be success-
fully pleaded to a subsequent indictment for an assault
with intent to commit a rape, because a verdict for the
attempt to commit the offence could not be received on an
indictment changing the offence itself. But that case
was before 14-15 V., c. 156, s. 9, Imp. (Sec. 183 Proced.
Act), which gives the right to convict of an attempt upon
an indictment charging the offence. And the case of B
v. Dungey, 4 jF*. <fc i^. 99, is a clear authority, that upor .
trial for rape the defendant may be found guilty of an
attempt to commit it. In fact there can now be no doubt
upon this ; sect, 183 of the Procedure Act is clear. See
cases cited under that section.
An assault with intent to commit a raps, is very different
from an assault with intent to have an improper con-
nection. The former is with intent to have a connection by
force and against the will of the woman. — R. v. Stanton,
1 a & K. 415 ; It. V. Wright, 4 F. d; F. 967 ; R. v.
Rudland, 4 F- <&; F. 495 ; R. v. Dungey, 4 F. <So F. 99.
An indictment for an attempt to commit rape is always
in the form of an assault with intent to commit rape, as in
R, V. Riley, 16 Cox, 191, for instance, and in R. v. Dungey,
uhi supra, the judge charged the jury that they could,
on an indictment for rape, find the prisoner guilty of an
assault with intent to commit rape.
Sec. 38, ante, does not create the offence of attempt to
commit a rape ; that is and has always been a misde-
meanor at common law- But this section merely provides
for the punishment of the offence, and makes it greater
than it would be cither at common law or by sec. 34 of
the same Act. The same as to sec. 37. It does not create
the crime of rape, but merely provides for its punishment,
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'f 'i\
and as in cases of murder, larceny, sodomy, etc., the offence
remains what it is at common law.
In a case oiR. v. John, in British Columbia, November,
1887, upon a writ of error, the Supreme Court were divided
on the question whether, upon an indictment for rape, the
prisoner in that case had been lawfully convicted of an
assault with intent to commit rape. An appeal has since
been taken to the federal Supreme Court and is now
pending.
In E, V. Wright, 4 F. S R, 967, the prisoner was
indicted for rape and for assault with intent to commit
rape. It is now allowed, to join a felony with a misde-
meanor iu all cases where by statute, a verdict for the
misdemeanor may be received on an indictment for the
felony, though altogether unnecessary.
In a case of rape, the counsel for the prosecution should
not tell the jury that to acquit the prisoner is to find the
woman guilty of perjury._i2. v. Eudland, and E. y.
Puddick, 4:F. <S; F. 495, 497.
39. Every one who unlawfully and carnally knows and abuses
any g,rl under the age of ten years is guilty of felonv, and liable to
inipneonnient for life or for any term not less than fiveyear8.-40 V
c. 28, s. 2. 48-49 V., c. 69, *. 4, Imp.
Indictment— in and upon one A. N., a girl
under the age often 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
carnaUy know and abuse, against the form... _
Archhold, 708.
The evidence is the same as in rape, with the exception
that the consent or non-consent of the girl is immaterial
—Archhold, 709.
OFFENCES AGAINST THE PERSON.
205
Upon the trial of an indictment under this clause, the
jury may, under sect. 191 of the Procedure Act, find the
defendant guilty of a common assault, in certain cases.
But no such verdict can be returned, if the girl assented.
—R. V, Read, 1 Den. 377 ; R. v. Connolly, 2G U. G. Q
B. 317 ; R. V. Roadley, 14 Cox, 463.
Under sect. 183 of the Procedure Act, the defendant
may be convicted of an attempt to commit the offence
charged, if the evidence warrants it. A boy under four-
teen years of age cannot be convicted of this offence, nor
of the attempt to commit it.— 1 Russ. 931.
40. Every one who unlawfully and carnally knows and abuses
any girl above the age often years and under the age of twelve vears
18 guilty of a misdemeanor, and liable to seven years' imprisonment.
—32-33 v., c. 20, s. 52. This oflenceis now in England a felony 48-49
v., c. 69, s. 4, 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
—Archhold, 709.
Same evidence as in rape ; but it will be no defence thaf,
the girl consented.
Eemarks under preceding section are applicable here.
An indictment charged that G. in and upon D., a girl
above the age of ten, and under the age of twelve, unlawfully
did make an assault, and her, the said D., did then unlaw-,
fully and carnally know and abuse. Held, by the Court
of Criminal Appeal, that the indictment contained two
charges, one of common assault, and the other of the statu-
table misdemeanor (under this section), and that the pris-
oner might be convicted of a common assault upon it, aa
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no consent on the part of the girl had been proved. — R.
V. Guthrie, 11 Cox, 522 , R. v. Catherall, 13 Cox, 109.
On an indictment for carnal knowledge of a girl above
ten years of age and under twelve, and also for an assault :
Held, Lush, J., on the count for assault, that although
consent would be a defence, consent extorted by terror, or
induced by the influence of a person in whose power she
feels herself, is not really such consent as will have that
effect. — R. V. Woodhurat, 12 Cox, 443 ; R. v. Lock, 12 Cox,
244.
Upon an indictment for unlawfully assaulting and hav-
ing carnal knowledge of a girl between ten and twelve
years of age, the prisoner may be convicted of the attempt
to commit that offence. — R. v. Ryland, 11 Cox, 101;
R.\. Catherall, 13 Cox, 109.
The punishment would then be under next section. — R.
v. Meredith, 8 C <& P. 589 ; R. v. Webster, 9 L. C. R., 196.
If the girl has consented, there can be no verdict of
assault.— i2, V. Johnston, L. & C. 632 ; 1 Russ. 934 ; R. v.
Cockhurn, 3 Cox, 543; R. v. Martin, 2 Moo. G. G. 123;
R. V. Wollaston, 12 Cox, 180.
But there is a difference between consent and submis-
sion. — IRiLss. 934; R. v. Lockj 12 Cox, 244.
If upon an indictment for having a carnal knowledge of
a girl between ten and twelve years of age, it appear that
in fact the girl was under ten, the indictment cannot be
amended to make it agree quoad hoc with the proof, and
the prisoner must be acquitted. — R. v. Shott, Z G. & K.
206.
An indictment for the felony of rape still lies against
one who ravishes a female between the age of ten and
twelve.— iJ. v. Dicken, 14 Cox, 8; R. \. Radcliffe, 15
Cox, 127.
OFFENCES AGAINST THE PERSON. 207
41. Every one who commitf-any indecent assault uDon anv ft.m«u
ot aj,e, 18 guilty of a misdemeanor and liable to imprisonment for .n,!
term less than two years, and to be whipped -slTv TJ «/
24-26 v., c. 100. ,. 62 ; and 48-49 V., cM^Il iLp ' * " '''
IMment- one A. D. unlawfully and inde-
cently did assault, and her. the said A. D., did then beat,
wound and ill treat, and other wrongs to the said A. D did
JZ '^'. '^ '^\ ^'"''^"'' ^'' ^^^^'' *« indictments
for indecent assaults.
Consent is immaterial upon an indictments for the
attempt to have carnal knowledge of a girl under twelve
bu upon an indictment for irdecent assault, if the
girl, although under twelve, consented, the prisoner
must be acquitted, as there can be no assault on a person
9 Q. L. R 361. See M. v. Moadley, 14 Cox, 463. See
now as to England, 43-44 v., c. 45, Imp
Upon the trial of the prisoner, a school teacher, for an
indecent assault upon one of his scholars, itappea ed that
he forbade the prosecutrix telling her parents what had
happened, and they did not hear of it for two months
After the prosecutrix had given evidence of the assault
evidence was tendered of the conduct of the prisoner to
wards her subsequent to the assault,
^.i^. that the evidence was admissible as tending to
show the indecent quality of the assault, and as being in
effect, a part or continuation of the same tmnsaction as
TuTq^t 555^ ''''"" "" charged.^ie. v. Chutl
JuV l^'^'T'^"''' ^"' attempting to have connection
with a girl under ten, consent is immaterial; but in such a
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OFFENCES AGAINST THE PERSON.
case there can be no conviction for assault if there was
consent. — R. v. Connolly, 26 U. C. Q. B. 317.
42. Every one who, —
(a.) Prom motives of lucre, takes away or detains against her will,
with intent to marry or carnally know her, or to cause her to be
married or carnally known by any other person, any woman of any
age, who has any interest, whether legal or equitable, present or future,
absolute, conditional or contingent in any real or personal estate, or
who is a presumptive heiress or co-heiress or presumptive next of
kin, or one of the presumptive next of kin to any one having such
interest, or —
(6.) Fraudulently allures, takes away or detains such woman, being
under the age of twenty-one years, out of the possession and against
the will of her father or mother, or of any other person having the
lawful care or charge of her, with intent to marry or carnally know
her, or to cause her to be married or carnally known by any other
person, —
Is guilty of felony, and liable to fourteen years' imprisonment.
2. Every one convicted of any offence under this section shall be
incapable of taking any estate or interest, legal or equitable, in any
real or personal property of such woman, or in which she has any
interest, or which comes to her as such heiress, co-heiress or next of
kin ; and if any such marriage takes place, such property shall, upon
such conviction, be settled in such manner as any court of competent
jurisdiction, upon any information, at the instance of the Attorney
General for the Province in which the property is situate, appoints. —
32-33 v., c. 20, s. 54. 24-25 F., c. 100, s. 53, Imp.
On the trial of an indictment for an offence under sub-
sec, h. of this section, it is not necessary to prove that the
accused knew that the girl he abducted had an interest in
any property. — B. v. Kay lor, 1 Q. B. R. 364.
It is not necessary that an actual marriage or defilement
should take place. Under the first part of this section, the
taking or detaining must be from motives of lucre and
against the will of the woman, coupled with an intent to
marry or carnally know her or cause her to be married or
carnally known by another person.
Indictment under first part of this section, —
OFFENCES AGAINST THE PEBSON. 209
feloniously and from motives of lucre did take away and
detain (" take away or detain") one A. N. against her wiU,
she, the said A. N., then having a certain present and abso*
lute interest in certain real estate (any interest, whether
legal or equitable, present or future, absolute, conditional
or contingent in any real or personal estate) with intent
her, the said A. N., to marry (or carnally know her, or
cause her to be married or carnally known by ;
against the form (Add a count stating generally
the nature of some part of the propeHy, and if the intent
be doubtful, add counts varying the intent.) Archbold,
699. The value of the property should be stated. See
another form, in Chitty, C. L. 3rd V., 818.
Indictment under second part of this section —
•• feloniously and fraudulently allured (took away or
detained) one A. B. out of the possession and against the
wiU of C. D., her father, she, the said A. B., then being
under the age of twenty-one years, and having a certain
present interest in with intent, her, the said A. B
to marry (or carnally know, or cause to be married or
etc., etc., etc.,) contrary to the statute, etc. (Add counts if
necessary, varying the statement as to the property, pos-
session, or intents. '
Under the second part of the section, the offence consists
m the fraudulent allurement of a woman under twenty-
one out of the possession of or against the will of het
parent or guardian, coupled with an intent to marry or
carnally know her, or cause her to be married or carnally
known by another person, but, for this offence, no motives
of lucre are mentioned, nor should it have been committed
against the will of the woman, though she must be an
heiress, or such a woman as described in the first lines of
this section.
r
'• •»*
' i :|
./
210
OFFENCES AGAINST THE PERSON.
[i ti
The taking under the Hrst part of this section must be
against the will of the woman ; but it would seem that,
although it be with her will, yet, if that be obtained by
fraud practised upon her, the case will be within the Act ;
for she cannot whilst under the influence of fraud be con-
sidered to be a free agent.
If the woman be taken away in the first instance with
her own consent, but afterwards refuse to continue with
the offender, the offence is complete, because if she so
refuse, she may from that time as properly be said to be
taken against her will as if she had never given her consent
at all, for, till the force was put upon her, she was in her
own power. — 1 Burn, 8.
Moreover the detaining against her will is by itself
an offence.
It seems, also, it is not material whether a woman so
taken contrary to her will at last consents thereto or not,
for if she were in force at the time, the offence is complete
at the tiipe of tho taking, and the offender is not to escape
from the provisions of the statute by having prevailed
over the weakness of the woman by such means.
The second part of this section expressly contemplates
the case of a girl, under twtnity-one, whose co-operation
has been obtained by influence over her mind, and who
has been taken out of the possession of her parent or guar-
dian by means of a fraud practised upon them and against
their will, or by force, against their will, but with her
consent. If a girl, under twenty-one, is taken away or
detained against her own will, or her consent is obtained
through fear, that case would be within the first part of
this section. The woman, though married, may be a ., it-
ness against the offender. — Ardtbold, 700.
*'If, therefore," says Taylor, on Evidence, No. 1236, "a
■I \
OFFENCES AGAINST THE PERSON.
2U
" man be indicted for the forcible abduction of a woman
"with intent to marry her, she is clearly a competent
" witness against him, if the force were continuing against
" her till tho marriage. Of this last fact also she is a com-
"petent witness, and the better op-niun seems to be that
"she is still competent, notwithstanding her subsequent
"assent to the marriuge and her voluntary co-habitation :
" for otherwise, the offender would take advantage of his
"own wrong."
Under sec. 183 of the Procedure Act, the prisoner
charged with the felony aforesaid may be found guilty of an
attempt to commit the same, which is a misdemeanor at
common law, Boscoe, 283, and punishable by fine, or im-
prisonment, or both. The Court may also, in misdemeanors
require the defendant to find sureties to keep the peace and
be of good behaviour, at common law, and may order him
to be imprisoned until such security is found R. v.
Dunn, 12 Q.B. 1026.— Greaves' Cona. Acts, 7. See.secta.
24 and 31, c. 181, post.
Under sec. 191 of the Procedure Act, the prisoner may
be acquitted of the felony, and found guilty of an assault,
if the evidence warrants such finding.
43. Every one who, by force, takes away or detains against her
will any woman, of any age, with intent to marry or carnally know
her, or to cause her to be married or carnallv known by any other
person, is guilty • f felony, and liable to lourle. years' imprisonment.
—32-33 V.,c. 20 s. 65. 24-25 F., c. 100, s. 54, Imp.
The observations upon the last section will apply for the
most part to this, which provides a very proper protection
to women who happen to have neither any present nor
future interest in any property. — Greaves' Cons. Acts, 80.
It may be that manual force may not in all cases be
necessary, and, that though no actual force was used, yet,
I
I if.,
ii
iii.j
it-
212 OFFENCES AGAINST THE PERSON.
if the taking awuy was accomplished under the fear and
apprehension of a present immediate threatened injury,
depriving the woman of freedom of action, the statute
would be satisfied. — 1 Burn, 9.
Indictment. — feloniously and by force did take
away (or detain) one A. B. against her will, with intent
her, the said A. B., to marry (or ; against
the form of the statute (Jfthe intent is doubtful,
add a count stating it to he to " carnally know," or to
cause her to be married to one N. 8., or to some jyersona
to the jurors unknown, or to cause Jier to be carnally
known by, etc.) — 1 Burn, 12.
A veixlict for assault or for an attempt to commit the
ofl'ence charged, may be given, as under the next pre-
ceding section.
ABDUCTION OF GIRLS UNDER SIXTEEN.
44. Every one who unlawfully takes or causes to be taken any
unmarried girl, being under the age of sixteen years, out of the pos
session and against the will of her father or mother, or of any other
person having tiie lawful care or cliarge of her, is guilty of a mis-
demeanor, and liable to imprisonment for any term less than two
years.— 32-33 F., e. 20, s. 66. 24-25 V., c 100, s. 55, and 48-49 F., c.
69, s. 7, Imp.
The intent to marry, or carnally know is not an ingre-
dient of this offence. The only intent which is material is
the intent to deprive the parent or legal guardian of the
possession of the child. — Eoscoe, 24S. ^'o motives of
lucre are necessary. A woman may be guilty of this
offence.
It is immaterial vi'hether the girl consents or not, and
the taking need not be by force, actual or constructive.
E. V. Mankletow, 1 Russ. 954; Dears, 159. Where
a parent countenances the loose conduct of the girl,
OFFENCES AOAINHT THE PEB80N.
^13
the jury may infer that the taking is not against the
parent's will. Ignorance of the girl's age is no defence.—
1 Mu88. 952 ; R. v. Jtobi7ia, 1 C. ib K. 456. It is
not necessary that the taking away should be for a per-
manency ; it is sufficient if for the temporary keeping of
the girl.— R. v. Timmina, Bell, C C. 276.
On an indictment for' abducting a girl under sixteen
years of age, it appeared that the girl, when abducted, had
left her guardian's house for a particular purpose with his
sanction : Held, that she had not ceased to be in his pos-
session under the statute.- iJ. v. MondeleL 21 L. C. J.
154.
On a trial for taking an unmarried girl under the age of
sixteen out of the possession of her guardian :
Held, 1st. That evidence of her being badly treated by her
guardian is inadmissible. 2nd. That secondary evidence
of the age of the child is admissible. 3rd. That in this
case the defendant is not guilty of taking the child out of
the possession of the guardian. — R. v. Hollia, S L, N
299.
To pick up a girl in the streets and take her away is not
to take her out of the possession of any one. The prisoner
met a girl under sixteen years of age in a street, and
induced her to go with him to a place at some distance,
where he seduced her and detained her for some hours. He
then took her back to where he met her, and she returned
home to her father. In the absence of any evidence that
the prisoner knew, or had reason for knowing, or that he be-
lieved that the girl was under the care of her father at the
time, held by the Court of Criminal Appeal that a convic-
tion under this section could not be sustained. — R. v.
Oreen, Z F. <& F. 274; R. v. Hihlert, 11 Cox 246.
One who takes an unmarried girl under the age of sixteen
I 1
214
OFFENCES AGAINST THE PEESON.
I
years out of the possession and against the will of her
father or mother is guilty of this offence, although he may
not have had any bad motive in taking her away, nor
means of ascertaining her age, and although she was
willing to go.—R. v. Booth, 12 Cox, 231 ; B.y. Kippa,
4 Cox, 167 ; i2. v. Prince, 13 Cox, 138.
The defence in Booth's case was that the prisoner,
actuated by religious and philanthropic motives, had taken
the girl from her parents in order to save her from seclu-
sion in a convent. He was found guilty and sentenced.
A girl who is away from her home is still in the custody
or possession of her father, if she intends to return ; it is
not necessary to prove that the prisoner knew the girl to be
under sixteen ; the fact of the girl being a consenting party
cannot absolve the prisoner from the charge of abduction ;
this section is for the protection of parents. — jR. v. Mycock,
12 Cox, 28 ; R. v. Olifier, 10 Cox, 402 ; E. v. Miller, 13
Cox, 179.
Indictment — unlawfully did take (or cause to
he taken) one A. B. out of the possession and against the
will of E. F., her father, she, the said A. B., being then an
unmarried girl, and under the age of sixteen years, to wit,
of the age of .against the form, etc, (if necessary
add a count stating E. F. to he a person having the law-
ful care and charge of the said A. B,. or that the defen^
dant unlawfully did cause to he taken one ) —
Archbold. See R. v. Johnson, 15 Cox, 481.
It is no defence to an indictment under this section that
the prisoner believed the girl to be eighteen. — See R. v.
Prince, 13 Cox, 138.
It was held in R. v. Bishop, 5 Q. B. D. 259, that under
a statute which prohibits the receiving of lunatics for
treatment in a house not duly licensed, the owner of a house
OFFENCES AGAINST THE PERSON.
215
who had received lunatics was guilty of the offence created
by the statute, though the jury found that he believed
honestly and on reasonable grounds that the persona re-
ceived were not lunatics.
*' I do not think that the maxim as to the mens rea has
so wide an application as it is sometimes considered to have.
In old times, and as applicable to the common law or to
earlier statutes, the maxim may have been of general
application ; but a difference has arisen owing to the greater
precision of modern statutes. It is impossible now toapp!^
the maxim generally to all statutes, and it is necessary to
look at the object of each act to see whether and how far
knowledge is of the essence of the offence created." — Per
Stephen, J. Cundy v. Lecocq, 13 Q. B. D. 207.
CHILD STEALING.
46. Every one who, —
(a) Unlawfully, either by force or fraud, leads or tak' iway or
decoys or entices away, or detains any child under the age o ourteen
years, with intent to deprive any parent, guardian or other person
having the lawful care or charge of such child of the possession of
such child, or with intent to steal any article upon or about the person
of such child, to whomsoever such article belongs, or —
(6) With any such intent receives or harbors any such child,
knowing the same to have been, by force or fraud, led, taken, decoyed,
enticed away or detained, as in this section before mentioned, —
Is guilty of felony, and liable to seven years' imprisonment;
2. No person who has claimed any right to the possession of such
child, or is the mother, or has claimed to be the father of an ille-
gitimrte child, shall be liable to be prosecuted by virtue hereof on
account of the getting possession of such child, or taking such child
outof tlie possession of any pers( having the Jawful charge thereof.
—32-33 v., c. 20, s. 57. 24-2& t'., c. 100, s. 56, Imp.
See R. V. Johnson, 15 Cox, 481 ; and R. v. Barrett, 15
Cox, 658.
216
OFFENCES AGAINST THE PERSON.
Indictment— feloniously and imlawfully did
by force (m^ fraud) lead and take away (lead or take away,
or decoy, or entice away, or detain) one A. N., a child
then under the age of fourteen years, to wit, of the age of
seven years, with intent thereby then to deprive one A. S.,
the father of the said A. N., of the possession of the said
A. N., his said child, against And the jurors
that the said afterwards, to wit, on the day and
year aforesaid, feloniously and unlawfully did by force
(or fraud) lead and take away (or etc..) the said A. N.,
a child then under the age of fourteen years, to wit, of the
age of seven years, with intent thereby then feloniously to
steal, take and carry away divers articles, that is to say
then being upon and about the person of the said
child, against (Add counts stating that the defen^
dant did hy fraud entice away, or did hy fraud detain,
or did hy force detain^ if necessary^. — Archbold.
Upon the trial of any offence contained in this section,
the defendant may, under sec. 183 of the Procedure Act,
be convicted of an attempt to commit the same. — 1 Jiv^s,
966.
All those claiming a right to the possession of the child
are specially exempt-ed from the operation of this section,
by the proviso.
KTONAPPING.
, 46, Every one who, without lawful author! ty.'forcibly seizes and
confines or imprisons any other person within Canada, or kidnaps
any other person with intent, —
(a.) To cause such other person to be secretly confined or impris-
oned in Canada against his will,—
(6.) To cause such other person to be unlawfully sent or transported
out of Canada against his will, or —
(c) To cause such other person to be sold or captured as a slave,
or in any way held to service against his will, —
Is guilty of felony, and liable to seven years' imprisonment}
OFFENCES AGAINST THE PERSON.
217
2. Upon the trial of any oflfence under this section, the non-resistance
of the person eo kidnapped or unlawfulij confined thereto shall not
be a defence, unless it appears that it was not caused by threats,
duress or force or exhibition of force. — 32-33 V., c. 20, ss- 69 and 70.
At common law, kidnapping is a misdemeanor punish-
able by fine and imprisonment. — 1 JRwas. 962.
The above sections are taken from the 29 V., c. 14.
(1865).
The forcible stealing away of a man, woman or child
from their own country, and sending them into another,
was capital by the Jewish and also by the civil law. This
is unquestionably a very heinous crime, as it robs the
sovereign of his subjects, banishes a man from his country,
and may, in its consequences, be productive of the most
cruel and disagreeable hardships. — 4 Blackatone, 219.
By our statute, transportation to a foreign country is
not necessarily an ingredient in this offence. — See sec. 19
of Procedure Act, post, as to venue in such cases.
Under sec. 183 of the Procedure Act, the defendant
may be found guilty of an attempt to kidnap, upon an
indictment for kidnapping.
A verdict of assault may also be given, if the evidence
warrants it.— -iSfec. 191 Procedure Act.
Indictment — with force and arms unlawfully
and feloniously an assault did make on one A. B., and did
then and there, without lawful authority, feloniously and
forcibly seize and imprison the said A. B. within the
Dominion of Canada (or conjlne or kidnap) with intent
the said A. B. unlawfully, forcibly and feloniously to
cause to be unlawfully transported out of Canada, against
his will against the form — 2 Bishop, Gr,
L. 750 ; 2 Biahop, Cr. Proo. 690.
Held, on the trial of an indictment for kidnapping
1 1 i
h *.
218 OFFENCES AGAINST THE PERSON.
under 32-33 V, c. 20, s. 69, that the intent required
applies to the seizure and confinement as well as to the
kidnapping, and the indictment .should state such intent.
Held, also, that an amendment changing the name Eufus
Bratton to James Eufus Bratton was properly made.
Cornwall v. The Queen, 33 U. G. Q. B. 106.
ABORTION.
47. Every woman, being with child, who, with the intent to pro-
cure her own miscarriage, unlai ♦'•illy administers, or permits to be
administered, to herself any poison or other noxious thing, or unlaw-
fully uses, or permits to be used on herself, any instrument or other
means whatsoever with the like intent, and—
Every one who, with intent to procure the miscarriage of any
woman, whether she is or is not with child, unlawfully administers
to her or causes to be taken by her any poison or other noxious thing,
or unlawfully uses any instrument or other means whatsoever with
the like intent, —
Is guilty of felony, and liable to imprisonment for life.— 32-33 F., c.
20, *. 59. 24-25 V., c 100, s. 68, Imp.
Oreaves' Note.—Th.\& clause is framed on the 1 V., c.
85, s. 6.
The first part of it is new, and extends the former enact-
ment to any woman, who, being with child, attempts to
procure her own miscarriage.
The second part in terms makes it immaterial whether
the woman were or were not with child, in accordance with
the decision in R. v .Goodhall, 1 Den. 187
Indictment for woman administering poison to her-
self, ivith intent or, etc that CD. late of
0^ at and beiug then with child, with intent
to procure her own miscarriage, did unlawfully and felon-
iously administer to herself one drachm of a certain poison
(or noxious thing) called (or did unlawfully and
feloniously use a certain in trument or means) to wit,
contrary to the statute — I Bum, 16.
OFFENCES AGAINST THE PERSON.
219
Indictment for administering poison to a woman,
with intent to 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 cer-
tain poison, called (or noxious thing called )
with intent then and thereby to cause the miscarriage of
the said S. P. contrary to the statute 1 Burn, 16.
Indictment for using instrument with the like intent,
— unlawfully and feloniously did use a certain ins-
trument called a upon the person of one S. P., with
intent then and thereby to cause the miscarriage of the
saidS. P —\Burn, 16.
In order to constitute an offence under the first part of
section 47, the woman must be with child, though not
necessarily quick with child. The poison or other noxious
thing must have been administered, or the instrument used,
with the intent to procure the miscarriage. It must be
proved, according to the fact stated in the indictment, that
the woman administered to herself etc., or that the defen-
dant 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 meanSj
mentioned in the manner described in the indictment. — 1
Burn, 14.
Where the prisoner gave the prosecutrix the drug for the
purpose of procuring abortion, and the prosec'itrix 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. — jR. v.
Wilson, Dears & B. 121 ; R. v. Farrow, Bears & B. 164.
A man and woman were jointly indicted for feloniously
administering to C. a noxious thing to the jurors unknown
with intent to procure miscarriage. C. being in the family
way, went to the male prisoner, who said he would give
220
OFFENCES AGAINST THE PERSON.
miM
p it
i
I
her some stuff to put her right, and gave her a light color-
ed medicine, and told her to take two spoonfuls till she
became in pain. She did so and it made her ill. 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 her 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 be-
fore to meet them. C. then began to feel pain and told the
female prisoner. Then the male prisoner told what he had
given C. They 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 evi-
dence that the stuff administered was a noxious thing within
the 24-25 V., c. 100, s. 58, Imp. Also that there was
evidence of the female being an accessory before the fact»
and a party, therefore, to the administration of the noxious
thing. — M. V. Hollis, 12 Cox, 463.
Under the second part of this section, the fact of the
woman being pregnant is immaterial. M. v. Ooodall, 1 Den,
187. But the prisoner must have believed her to be preg-
nant, 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. Sec. 183 Procedure
Act.- See M. v. Cramp, 14 Cox, 390 and 401,
48. Every one who 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 is or is
not with «hild, is guilty of a misdemeanor, and liable to two years'
imprisonment— 32-33 F., c 20, a. 60. 24-25 V., c 100, *. 69, Imp.
OFFENCES AGAINST THE PERSON.
221
Indictment unlawfully did procure (sujyply or
procure) a large quantity, to wit, two ounces of a cjrtaiu
noxious thing called savin, he the said (defendant) thea
well knowing that the same was then intended to be
unlawfully used and employed with intent to procure
the miscan-iage of one A.N. against the form —
Archhold, .
The 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. — R. v. Isaacs, L. & C. 220.
In order to constitute the offence within the meaning of
this section, it is not necessary that the intention of employ-
ing the noxious drug should exist in the mind of the
woman : it is sufficient, if the intention to procure abortion
exists in the mind of the defendant. — M. v. Hillman,
L. <Sc a 343.
The prisoner may be convicted of an attempt to commit
this offence, upon an indictment under this section. Sect.
183 of the Procedure Act.
Supplying a noxious thing with the intent to procure
abortion is an offence under this section, whether the
woman is pregnant or not. — R v. Titley, 14 Cox, 502.
Giving oil of savin to procure abortion is indictable
under 32-33 V., c. 20, s. 60.— R. v. Stitt, 30 U, C. C. P. 30.
CONCEALING THE BIRTH OF A CHILD.
49. Every one who, by any secret disposition of the dead body of
any child of which any woman is delivered, whether euch child died
before, at or atter its birth, endeavon; to conceal the birtli thereof, is
guilty of a misdeameanor, and liable to ini prison nnent for any term
less than two years.— 32-33 V., c. 20, a. 61, part. 24-26 V., c. 100
s. 60, Imp.
See Greaves' note under sec. 188 of the Procedure Act.
m
222
OFFENCES AGAINST THE PERSON.
i' •
Indictment. — that A. S. on was deli-
vered of a child ; and that the A. S., being so delivered of
the said child as aforesaid, did then unlawfully endeavor
to conceal the birth of the said child by secretly burying
(by any 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.
In R. V. Berriman, 6 Cox, 388, Erie, J., told the
jury that this offence cannot be committed unless the
child 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, R. v. Colmer, 9 Cox, 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 place from which a further removal was contem-
plated, would support the indictment. — R. v. Qoldthorpe,
2 Moo. G. G. 244 ; R. v. Perry, Dears. 471.
Leaving 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 such a position as to attract
the attention of those who daily resorted to the room, is
not a secret disposition of the body, within the meaning
of the statute.— iJ. v. George, 11 Gox, 41.
What is a secret disposition of the dead body of a
child within the statute is a question for the jury, de-
pending on the circumstances of the particular case :
where the dead body of a child was thrown into a field,
over a wall 4 J feet high, separating the yard of a public
house from the field, and a person looking over the wall
from the yard might have seen the body, but persona
going through the yard or using it in the ordinary way
OFFENCES AGAINST THE PERSON.
228
would no', it was hold, on a case reserved, that this was
an offence within the statute.— ii. v. Brown, 11 Cox
517.
Athough the fact of the prisoner having placed the
aead 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-
mine whether or not aa offence has been committed —
R. V. Cook, 11 Cox, 542.
In order to convict a woman of attempting to conceal
the birth of her child, see sec. 188 of the Procedure Act,
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 inii, at
Stafford, received by post, on the 28th of August, 1870,
a Rugby newspaper with the Rugby postmark upon it.
On the same day her appearance and the state of her
room seemed to indicate that she had been delivered of
a child. She left for Shrewsbury next morning, carrying a
parcel. That afternoon a parcel was found in a waiti'ng
room at Sta;ford station. It contained the dead body of
a newly-born child, wrapped in a Rugby Gazette, of
August 27th, bearing the Rugby postmark. There is a
railway from Stafford to Shrewsbury, but no proof was
given of the woman having been at Stafford Station-
Held, Montague Smith, J., that this evidence was insuffi-
cient to identify the body found as the child of which the
woman was said to have been delivered, and would not
therefore justify her conviction for concealment of birth.—
R. v. Williams, 11 Cox, 684.
Where death not proved conviction is illegal —72 v
Bell, 8 Ir. R. a L, 5U. ^ *
A. being questioned by a police-constable about the
224
OFFENCES AGAINST THE PERSON.
connealuiont of a birth, gavo an flnswer which caused
the officer to say to her, ♦' It rnighl be better ' r you to
tell the truth and not a lie." Held, that a further state-
ment made by A. to the policeman after the ubove induce-
ment was inadmissible in evidence against her, is iiot being
free and voluntary. A. was taken into custody the same
day, placed with two accomplices, B. as I C. and charged
with concealment of birth. All three then made state-
ments. Held, that those made by B. and C. could not be
deemed to be affectod by the previous inducement to A.
and were, therefore, admissible against B, and C. respec-
tively, although that made by A. was not so. Ihe prisoners
were sent for trial, but before heir 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: Held, 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 birch. — R. v. Bate, 11 Cox, 686.
A woman delivered of a child bom alive, endeavored
to conceal the birth thereof by depositing the child while
alive in a corner of a iield, when it died from exposure.
Held, that she could not be indicted under the above
section. — i2. v. May, 16 L. T. Rep. 362.
The prisoner who lived alone had placed the dead body
of her new born child behind a trunk in the room she
occupied, between the trunk and the wall On being
charged with having had a child, she at first denied it.
Held, sufficient to support a conviction for concealment
of birth.— iJ. v. Pichd, 30 U. C. C. P, 409.
CHAPTER 163.
AN ACT RESPECTING LIBEL.
TTER Mujeaty, by and with tl.^ advice and conaent of the Senate
■^ and lionae of Commons of Canada, enacts as follows :—
1. Every one who publishes or threatens to publish nny libel upon
any other person, or directly or indirectly threatens to print or publish,
or proposes to abstain from printing or publishing of, or offers to
prevent the printing or publishingof any matter or thing touching any
other person, /ith intent to extort any money or security for money
or any valuaule thing, from such person or from any other person,
or with intent to induce any person to confer upon or procure for any
person any appointment or office of profit or trust, is guilty of a mis-
demeanor, and liable to a fine not exceeding six hundred .lullars, or
to imprisonment for uny term less than two years, or to both —37
v., c. 38, a. I, part, (i-7 V., c. 96, s. 3, Imp.
2. Every one who maliciously publishes any defamatory libel,
knowing the Hame to be false, is guilty of a misdemeanor, and liable
to a fine not exceeding four hundred dollars, or to imprisonment for
any term less than two years, or to both.— 37 F., c. 36, s. 2. 6-7 F.,
c. 96, «. 4, Imp,
3. Every one who maliciously publishes any defamatory libel is
guilty of a misdemeanor, and liable to a fine not exceeding two hundreti
dollars, or to imprisonment for any term not exceeding one year, or
to both.— 37 v., c. 38, ». 3. 6-7 V., e. 96, a. 6, Imp.
4. It shall, if pleaded, be a defence to an indictment or information
for a defamatory libel, that the defamatory matter was true, and that
it was for the public benefit that such matter should be published.—
37 v., e. 38, aa. 5 and 6,parta. 6-7 V., c 96, *. 6, Imp.
6. Whenever, upon the trial of any indictment or information for
the publication of a defamatory libel, to which a plea of not guilty
has been pleaded, evidence is given which establishes against the
defendant a presumptive case of publication by his authority, by the
act of any other person, the defendant may prove, and, if proved, it
shall be a good defence, that such publication was made without his
authority, consent or knowledge, and that such publication did not
arise from want of due care or caution on his part 37 F., c. 38, a.
10. 6-7 v., c. 96, a. 7, Imp.
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226
LIBEL,
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6. Every person against whom any criminal proceedings are com-
menced or prosecuted in any manner for or on account of or in respect
of the publication of any report, paper, votes or proceedings, by such
person or by his servant, by or under the authority of any Legislative
Council, Legislative Assembly or House of Assembly, may bring
before the court in which such proceedings are so commenced or
prosecuted, or before any judge of the same, first giving twentyrfour
hours' notice of his intention so to do, to the prosecutor in such pro-
ceedings, or to his attorney or solicitor, a certificate under the hand of
the speaker or clerk of any Legislative Council, Legislative Assembly
or House of Assembly, as the case may be, stating that the report,
paper, votes or proceedings, as the case may be, in respect whereof
such criminal proceedings have been commenced or prosecuted, was
or were published by such person, or by his servant, by order or under
the authority of any Legislative Council, Legislative Assembly or
House of Assembly, as the case may be, together with an affidavit
verifying such certificate ; and such court or judge shall thereupon
immediately stay such criminal proceedings, and the same shall be
and shall be deemed and taken to be finally put an end to, deter-
mined ana superseded by virtue hereof. — 24 V. {P. E. I.), c- 31, s. 1.
3-4 v., c. 9, s. 1, Imp.
7. In case of any criminal proceedings liereafter commenced or
prosecuted for or on account or in respect of the publication of any
copy of such report, paper, votes or proceedings, the defendant, at any
stage of the proceedings, may lay before the court or judge such report,
paper, votes or proceedings, and «<uch copy, with an affidavit verifying
such report, paper, votes or proceedings, and the correctness of such
copy; and the court or judge shall immediately stay such criminal
proceedings, and the same shall be and shall be deemed to be finally
put an end to, determined and superseded by virtue hereof. — 24 V.
(P. E. 1. , c. 31, *. 2. 3-4 v., c. 9, s. 2, Imp.
8. In any criminal proceeding commenced or prosecuted, for print*
ing any extract from or abstract of any such report, paper, votes or
proceedings, such report, paper, votes or proceedings may be given in
evidtnce, and it may be shown that such extract or abstract was
publiBhed bond fide and without malice, and if such is the opinion
of the jury, a verdict of not guiltj shall be entered for the defendant.
—24 V. {P. E. L), c. 31, s. 3. 3-4 F., c. 9, a. 3, Imp.
PROCEDURE ACT.
SECTIONS ON LIBEL.
148. Every one accused of publishing a defamatory libel may
plead that the defamatory matter was true, and that it was for the
public benefit that such matter should be published, to which plea the
prosecutor may reply generally, denying the whole thereof— 37 V., c.
38, s. 6, part, and s. 6, part. 6-7 V., c 96, s. 6, Imp.
149. Without such plea, the truth of the matters charged as libel-
lous in any such indictment or information, or that it was for the
public benefit that such matters should have been publishel, shall in
no case be inquired into.-37 V., c 38, s. 7. 6-7 V., c. 96, *. 6, Imp.
160. If, after such plea, the defendant is convicted on such indict-
ment or information, the court, in pronouncing sentence, may consider
whether the guilt of the defendant is aggravated or mitigated by such
plea, and by the evidence given to prove or disprove the same —37 F
c. 38, s. 8. 6-7 v., c. 96, s. 6, Imp. ' ' ''
161. In addition to such plea of justification, the defendant may
plead not guilty; and no defence otherwise open to the defenlant
under the plea of not guilty shall be taken away or prejudiced by
reason of such special plea— 37 V., c. 38, s. 9. 6-7 V., c. 9G, a. 6, Imp.
162. On the trial of any indictment or information for the makinc'
or publishing of any defamatory libel, on the plea of not guiltv pleaded"
the jury sworn to try the issue may give a general verdict of guilty or
not guilty, upon the whole matter put in issue upon such indictment
or information, and shall not be required or directed, by the court or
udge before whom such indictment or information is tried, to find
the defendant guilty, merely on the proof of publication by such
defendant of the paper charged to be adef.matory libel, and of the
sense ascribed to the same in such indictment or information; but
the court or judge before whom such trial is had shall, accordiiU to
the discretion of such court or judge, give the opinion and direction
of such court or judge to the jury, on the matter in issue, as in other
criminal cases ; and the jury may, on such issue, find a special verdict
if they think fit so to do; and the defendant, if found guilty, may
move in arrest of judgment on such ground and in such manner as
he might have done before the passing of this Act.— 37 F.. c 38 a 4
32 Q. 3, c. 60, as. 1, 2, 3, 4, Imp. * * '
HHSSHH
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228
LIBEL.
153. In the case of an indictment or information by a private
prosecutor for the publication of a defamatory libel, if judgment is
given against the defendant be ehall be liable for the costs sustained
by the prosecutor, by reason of such indictment or information ; and
if judgment is given for the defendant he shall be entitled to recover
from such prosecutor the costs iiicurred by him, by reason of such
indictment or information ; and such costs, so to be recovered by the
prosecutor or defendant respectively, shall be taxed by the court,
judg'j or the proper officer of the court before which such indictment
or information is tried.— 37 V., c. 38, *. 12. 6-7 T., c 96, s. 8, Imp.
154 • The costs mentioned in the next preceding nection shall be
recoverable, either by warrant of distress issued out of the said court,
or by action or suit as for an ordinary debt. — 37 F., c 38, a. 13.
The costs of showing cause against a rule for the filing
of an information are covered by sec. 153. — B,, v. ^ted^
13 Cox, 169.
Indictment for a false defamatory Libel. — The
Jurors for Our Lady the Queen upon their oath present,
that J. S., contriving, and unlawfully, wickedly, and
maliciously intending to injure, vilify, and prejudice one J.
N., and to deprive him of his good name, fame, credit and
reputation, and to bring him into public contempt, scandal,
infamy and disgrace, on the first day of June, in the year
of our Lord , unlawfully, wickedly, and maliciously
did write and publish, and cause and procure to be written
and published, a false, scandalous, malicious and defama-
tory libel, in the form of a letter directed to the said J.
N. (or, if the publication were in any other manner,
omit the words "in the form," etc.), containing divers
false, scandalous, malicious and defamatory matters and
things of and concerning the said J. N., and of and con-
cerning, etc. (here insert such of the subjects of the libel as
it may be necessary to refer to by 'he innuendoes, in
setting out the libel), according to the tenor and effect
following, that is to say (here, set out the libel, together
I
LIBEL.
229
with 8uch innuendoes aa may be necessary to render it
intelligible), he the said J. S. then well knowing the said
defamatory libel to be false ; to the great damage, scandal
and disgrace of the said J. N.. to the evil example of all
others in the like case offending, and against the peace of
our lady the Queen, her crown and dignity.
Imprisonment not exceeding two years, and fine, c.
163, 8. 2. If tfie prosecvior fail to prove the scienter, the
defendant may nevertheless be convicted of publishing a
defamatory libel, and punished by fine, or imprisonment
not exceeding on^ year, or both.— Id. s. 3. The defendant
may plead, in addition to the plea of not guilty, that the
matters charged were true, and that it was for the public
benefit that they should be published, setting forth the
particular foAits, by reason of which the publication was
for the public benefit
The fence of libel is not triable at ijurter sessions.
Sec. 4, Procedure Ad.
The defendant may allege and prove the truth of the
libel, in the manner and subject to the conditions men-
tioned. — S. 4, c. 163, and s. 148 of the Procedure Act.
Thft following may be the form of the special plea . —
And for a further plea in this behalf, the said J. S. saith
that Our Lady the Queen ought not further to prosecute
the said indictment against him, because he saith that it
is true that (e*-c., alleging the truth of every libellous
part of the publication) : and the said J. S. further saith,
tlmt before and at the time of the publication in tfie said
indictment mentioned (state here the facts which rendered
the publication of benefit to the public); by reason whereof
it was fov the public benefit that the said matters so
charged in the said indictment slwuld be published.
And this, etc. This plea may be pleaded with the general
f^-m
230
LIBEL.
issue. Evidence that the identical charges contained in
a libel had, before the *;ime of composing and publishing
the libel which is the subject of the indictment, appeared
in another publication which was brought to the prose-
cutor's knowledge, and against the publisher of which
he took no legal proceedings, is not admissible under
this section. R. v. Newman, Dears. 85 ; 1 E, & B. 268.
Where the plea contains several charges, and the defen-
dant fails in proof of any of the matters alleged in it,
the jury must of necessity find a verdict for the crown;
and the court, in giving judgment, is bound to consider
whether the guilt of the defendant is aggravated or miti-
gated by the plea, and by the evidence given to prove
or disprove it, and form its own conclusion on the whole
case.— /c^. 1 E. & B. 558.
The replication may be as follows • — And as to the plea
of the said J. S., by him secondly above pleaded, the said
A. B. (the clerk of assize or clerk of the peace) saith that
by reason of anything in the said second plea alleged,
Our said, Lady the Queen ought not to be precluded from
fi. iher prosecuting the said indictment against the said
J. S., because he saith, that he denies the taid several
.natters in the said second plea alleged, and saith that
the same are not, nor are nor is any or either of them,
true. And this he the said A. B. prays may be inquired
of by the country, etc. And the said J. S. doth the like.
Therefore, etc.
Indictment for treatening to publish a ubel, etc., with
intent to extort money, etc unlawfully did threaten
one J. N. to publish a certain libel of and concerning him
the said J. N. (^' if any person shall publish, or threaten
to publish, any libel upon any other person, or shall
directly or indirectly threaten to print or publish, or
LIBEL.
231
shall directly or indirectly propose to abstain from print-
ing or publishing, or shall directly or indirectly ofer to
prevent the printing or publishing of any matter or thing
touching any other person "), with intent thereby then
to extort money from the said J. N. ("with intent to
extort any money or security for money , or any valuable
thing, from such or any other person, or with intent to
induce any person to confer or procure for any person
any appointment or ojfflce of profit or trust "J. If it be
doubtful whether the matter threatened to be published
be libellous, add a count cliarging that the defendant
" did propose to the said J. N. to abstain from printing
and publishing a certain matter and thing touching the said
J. N. (or one J. F.) with intent, etc."
What is a libel? Duties of grand jurors on an indict-
ment for libeL — Chief Justice Dorion, 10 L. N. 361.
Information for a libel. — Ex parte Gugy, 8 L. C. R.
353.
Under sec. 4, ante, and sec. 148 of the Procedure Act,
the magistrate has no jurisdiction to -ooeive evidence of
the truth of the libel, upon an information. — R. v. Car-
den, 5 Q. B. D. 1, 14 Cox, 359.
In a case of libel, it is no ground to change the venue
that a fair trial cannot be had in a particular venue, that
many of the defendant's witnesses reside at a distance, and
the defendant has no funds to bring them to that venue. —
R. V. Casey, 13 Cox, 614.
On sec. 4 of the Act, see R. v. Laurier, 11 R. L. 1 84. —
On sec. 5, see R. v. Holbrook, 3 Q. B. D. 60 ; 4 Q. B, D.
42 ; 13 Cox, 650 ; 14 Cox, 185. Ay to right of the Crown
to set aside jurors in cases of libel, see R. v. Pateson, 36,
U. C. Q. B, 127, and R. v. Maguire, 13 Q. L. R. 99, under
sec. 165 of the Procedure Act, post.
\\
I
\'A\
232
LIBEL.
It must be proved that the defendant was proprietor or
pubb'sher of the journal at the time of the publication of
the libel. That he is at the time of the trial is not suf-
ficient.— i2. V. Sellara, 6 L. iV. 197.
Under sec. 152 of the Procedure Act, ante, see E. v.
Dougall, 18 L. C. J. 85.
The defendant was indicted for a malicious libel, and
specially pleaded the truth of the libel as well as the plea
of not guilty. Under this plea he endeavoured to prove
justification. Held, that evidence not admissible, as, under
the statute, to be allowed to justify, the defendant has to
plead not only that the publication was true, but also that
it was made for the public good. — M. v. Eickaon, 3 L,
N. 139.
See M. V. Lahouchire, 14 Cox, 419, as to the suffi-
ciency of a plea of justification.
As to what constitutes a guilty knowledge under sec-
tion 2 of the Libel Act, and that it is forthe jury to decide
under a plea of justification if the statement complained
of is true, and if it was published for the public benefit.
See E. V. Tasad, 8 Z. K 98.
No action for libel by a wife against her husband.— iJ.
V. Lord Mayor, 16 Q. B. D. 772 ; 16 Cox, 81.
On an accusation for libel, it is no defence that the libel
was published with " no personal malice."— jR. v. " The
W(yrU," 13 Cox, 305.
On an indictment for publishing an obscene book, the
passages of the book upon which the charge is brought
must be set out.— iJ. v. Bradlaugh, 14 Cox, 68.
The truth of a seditious or blasphemous libel cannot be
pleaded to an indictment for such libel. Sec. 4, ante, of
the Act does not apply to such libels, but sec. 5 applies.
R. V. Bradlaugh, 15 Cox, 217 ; B. v. Ramsay, 15 Cox,
231. Ex parte O'Brien, 15 Cox, 180.
LIBEL.
233
Held, 1. A criminal infoiination (for libel) will not be
granted except in case of a libel on a person in authority,
and in respect of duties pertaining to his office.
2. Where a libel was directed against M., who was at
the time attorney general, but alleged improper conduct
upon his part when he was a judge, an information was
refused.
3. The applicant for a criminal information must rely
wholly upon the court for redress, and must come there
entirely free from blame.
4. Where there is foundation for a libel, though it falls
far short of justification, an information will not be granted.
— The Queen v. Bigga, 2 Man. L. R. 18.
LARCENY.
GENERAL REMARKS.
Larceny is the wrongful taking and carrying away of
the personal goods of any one from his possession, with
a felonious intent to convert them to the use of the
offender, without the consent of the owner ; 2 East, P. C.
553; the word "felonious" showing that there is no
color of right to excuse the act, and the " intent " being
to deprive the owner permanently of his property. — R.
V. Thurhorn, 1 Den. 388 ; R v. Ouevmey, 1 F. d; F.
394; R. V. Holloway, 1 Den. 370; 3 Burn, 198; 2
Iiu88. 14G, note by Oreavea; R. v. Middleton, 12 Cox,
417.
It is not, however, an essential ingredient of the offence
that the taking should be for a cause of gain, lucH causd ;
a fraudulent taking, with intent wholly to deprive the
owner of his property, or with intent to destroy it, is
sufficient. But see post, on this question of intent in
larceny.
Larceny is either simple, that is, unaccompanied by any
other aggravating circumstance, or compound, that is,
when it is accompanied by the aggravating circumstances
of taking from the house or person, or both.
Larceny was formerly divided into grand larceny and
petit larceny ; but this distinction is now abolished. See
post, sect. 3 of the Larceny Act.
By sect. 86 of the said Act, a more severe punish-
ment may be inflicted when the value of the article
stolen is over two hundred dollars, but then this value
must be alleged in the indictment and duly proved on
LARCENY.
235
the trial, otherwise the larceny is punishable under sec-
tion 5 of the said Act.
The requisites of the offence are :
1. The taking.
2. The carrying away.
3 The goods taken.
4. The owner of the goods.
6. The owner's dissent from the taking.
6. The felonious intent in taking,
1. — THE TAKING.
To constitute the crime of larceny, there must be a
taking or severance of the thing from the actual or con-
structive possession of the owner ; for all felony includes
trespass, and every indictment must have the words
feloniously took as well as carried away ; from whence it
follows that, if the party be guilty of no trespass in tak-
ing the goods, he cannot be guilty of felony in carrying
them away. — 1 Hawkins, p. 142. As in the case of a wife
carrying away and converting to her own use the goods
of her husband, for husband and wife are one person in
law, and, consequently, there can be no taking so as to
constitute larceny ; 1 Hale, 514, and the same if the hus-
band be jointly interested with others in the property so
taken, -ii. v. Willis, 1 Moo. C. C. 375.
The taking, however, may be by the hand of another;
2 East, P. C. 555 ; as if the thief procure a child within
the age of discretion to steal goods for him, it will be
the same as if he had taken them himself, and the taking
in such case should be charged to him.— 1 Hale, 507.
The possession of the owner may be actual or con-
structive ; that is, he may have the goods in his manual
possession, or they may be in the actual possession o
i
:?
236
LARCENY.
another, and at the same time; bo constructively in the
owner's possession; and they may bo his property by
virtue of some contract, and yet not have been reduced
by him into actual possesaion ; in which case, his pos-
session is constructive, as by placing them under hia
servant's care to be by him managed for him.
But besides the actual and constructive possession in
the owner, who at the same time has the property in
him, there is a possession distinct from the actual pro-
perty, although arising out of an interest in the goods,
acquired by contract, as in the case of one who has
possession of goods in pledge, or of goods lent, or let.
Such an one has a property, as well as possession, con-
current with the absolute proper' y of the real owner,
and either defeasible or reducible into an absolute pro-
perty, according to the terms agreed upon between him
and the actual owner.
Either of the above kinds of possession will bo sufificiont
to sustain an indictment of larceny from the absolute
owner. — 3 Burn, 201.
This part of the law on larceny is laid down as follows
in the draft of a Criminal Code for Canada, introduced
in the Legislative Assembly, in 1850, by Mr. Justice
Badgley, then Attorney General; "To constitute lar-
ceny, a thing must be owned by, or be the general or
special property of some one, or belong to him, either
by a proprietory or possessory right thereto. A pro-
prietory right is that of one having a general or special
property in a thing. A possessory right is that of one
having and being entitled to the possession of a thing.
One having the authorized custody of or being entrusted
with a thing, so as to be answerable therefor, or for the
value thereof, has a possessory right thereto. The
LABCENY.
237
actual possession of a thing by any one is the constnic-
tive possession of all v"*.. have propriotory or {wssossory
rights therein, general or special, absolute or quiilifiod.
A propriotory or a possessory right to a thing by one
constitutes him the owner thereof as to larceny thereof
by another."
As very nice questions frequently arise, as to what will
amount to a sufficient taking, where the owner of the
chattels has delivered them to the party accused, or to a
third person, the subject will be inquired into in the follow-
ing order :
1. The taking where the ovmer h/is delivered the
chcUtele, under a hare charge.
2. The taking where the po8aes»ion of the goods has
been obtained aninw furandi.
3. The taking where the poaaeaaion of the goods haa
been obtained bondjide, witho\i,t any fraudulent interim
lion in the first instance.
4. The taking where the offender haa more than a
special property in the gooda. — 3 Burn, 201.
1. The taking where the offender has a hare charge.
The books notice cases in which, although the manual
custody be out of the owner, and delivered by him to
another, yet the possession, absolute as well as construc-
tive, is deemed to remain in him, and the possession of the
other to be no more than a bare charge.
Upon this ditference between a possession and a charge,
Lord Coke says : " There is a diversity between a pos-
session and a charge : for, when I deliver goods to a man,
he hath the possession of the goods, and may have an
action of trespass if they be taken or stolen out of his pos-
session. But my butler, or cook, that in my house hath
charge of my vessels or plate, hath no possession of them,
238
LARCENY.
nor shall have an action of trespass as the bailee shall ;
aud, therefore, if they steal the plate, etc., it is larceny,
and so it is of a shepherd, for these thing-i be in onere et
Tbon in possessione promi, coci, paatoria, etc."
So he says : " If a ta verner set a piece of plate before a
man to drink in it, and he carry it away, it is larceny ; for
it 13 no bailment, but a specifd use to a special purpose."
The servant who keeps a key to my chamber may be
guilty of felony in fraudulently taking away the goods
therein, for he hath only a bare charge given him. And
where a person employed to drive cattle sells them, it is lar-
ceny, for he has the custody merely, and not the right to the
poasession.— 22. v. McNamee, 1 Moo. C. C. 368 ; although
the intention to c<>nvert them were not conceived un'al
after they were delivered to him.— i2. v. Harvey, 9 C. S
P, 353 ; B. V. Jackson, 2 Moo. C. C. 32. So a carter going
away with his master's cart was holden to have been guilty
of fe]-ny — E. v. Robinson, 2 East, P. C. 565. If A. ask
B., who is not his servant, to put a letter into the post,
telling him that it contains money, and B. break the seal
and abstract the money before \ puts the letter in the
post, ho is guilty of larceny.— it. \. Jones, 7 G. <& P. 151.
So if a master deliver property into the hands of a ser-
vant for a special purpose, as to leave it at the house of a
friend, or to get change, or to deposit it with a banker, the
servant will be guilty of felony in applying it to his own
use ', for it still rbmains in the constructive possession
of its owner. — I Leach, 302 ; 2 Leach, 87u.
So where a lad v asked the prisoner to get a railway
ticket for her, and handed him a sovereign to pay for it,
which he took, intending to steal, and instead of getting
the ticket, ran away ; it was held to be larceny. — R. v,
Thompson, L <& C. 225,
"^ s-r
LARCENY.
239
If a banker's clerk is sent to the money room to bring
cash for a particular purpose, and he takes the opportunity
of secreting some for his own use, 1 Leach, 344 ; or if a
tradesman intrust goods to his servant to deliver to a cus-
tomer, and he appropriate them to himself, the parties are
respectively guilty of larceny.— il. v. Bass, 2 East, P. O.
666 ; 1 Leach, 251 ; 1 Gowp. 294.
And if several people play together a', cards, and deposit
money for that purpose, not parting with their property
therein, and one sweep ic all away and take it to himself,
he ./ill be guilty of larceny, if the jury find that he acted
with a felonious design.— 1 Leach, 270; R. v. William, 6
C. <k P. 390 ; R. v. Robson, R, <£; R, 413.
And if a bag of wheat be delivered to a warehouseman
merely for safe custody, and he takes all the wheat out of
the bag, and dispose of it, it is larceny.— ij. v Brazier
R. & R. 337.
An unauthorized gift by the servant of his master's
goods is as much a felony as if he sold or pawned them —
R. V. White, 9 C <fc P. 344.
Where goods have not been actually reduced into the
owner's possession, yet, if he has intrusted another to
deliver them to his servant, and they are delivered
accordingly, and the servant embezzle them, he may be
guilty of larceny.— iJ. v. Spears, 2 East, P. C 568 • i2
v. Ahrahit, 2 East, P. C. 569 ; R. v. Reed, Dears. 257. *
On tha trial of an indictment for larceny as a servant it
appeared that the prisoner lived in the house of the prose-
cutor, and acted as the nurse to her sick daughter, the pris-
oner having board and lodging and occasional presents for
her services, but no wages ; while the prisoner was so
residing, the prosecutor's wife gave the prisoner money to
pay a coal biU, which money the prisoner kept, and brought
{...s
,illii
240
LABCENY.
back a forged receipt to the coal bill : Held, that the pris-
oner wa8 not the servant of the prosecutor, but th.t this
was a larceny of the money— iJ. v. Frances, 1 C. & K,
423
These several cases were all founded upon the master
having an actual or legal possession, prior to the delivery
to the servant. But there are others in which the master
has neither property nor posaeaaion in the goods, pre-
viously to the receipt of them by his servant from a third
person, for the purpose of deUvering them to him. And
it has been held, that a servant so receiving goods, and
then embezzling them, is not guilty of larceny at common
law.— 2 East, P. G. 568.
Therefore if a shopman receive money from a customer
of his master, and, instead of putting it into the till, secrete
it E V. BuU, 2 Leach, 841 ; or if a banker's clerk receive
money at the counter, and, instead of putting it into the
proper drawer, purloin it, R. v. Bazely, 2 Uach, 835 ; or
receive a bond for the purpose of being deposited m the
bank and. instead of depositing it. convert it to his own
use R V Waite, 1 Leach, 28 : in these -sases it has been
hoiden that the clerk or shopman is not guilty of larceny,
at common law. eo * 4.u
But now, this offence is punishable under sec. 52 ot the
Larceny Act. ^ee poat. j, .. ^ v
2 The taking uhere the poaaeaaion of the goods has
heen obtained animo furandi. Where the offender
unlawfully acquired the possession of goods, as by traud
or force with an intent to steal them, the owner stUl
retaining his property in them, such offender will be guilty
of larceny in embezzling them. Therefore, hiring a horse
on pretence of taking a journey, and immediately selling
it is larceny ; because the jury found the defendant acted
lABOEmr.
241
ammo /„™™<Z» ,„ ,„aking the contmot, «„d the parting
with the pomes^on merely had not changed the nature of
tb. property.-^ v. P^r. 1 leack. 212. And ,o. where
a person h.«s a p„at-chai,e for an indefinite period, and
«.nve,ts ,t to his own use. he may be convicted'^f Wy
Lzzr """"-' "" '^'"■"""'-^- ^- "^-^^-^
So where the prisoner, intending to steal the mail bags
from tue post office, procured them to be let down to Wm
by a etnng from the window of the post office, under pre
^nce that he was the mail guard, hVwas held gu Ity of
Iarceny._iJ. v. Pearce. 2 East, P. c 603
Where the prisoner was hired for the special purpose of
doing so, drove them, the following morning after he
received them, a different road, and'sold them' th jury
having found that, at the time he n^ceivW the sheepZ
intended to convert them to his own use, and no drive
th m to the specified fair, the judges were unanimously If
in T '.' "^ "^"""^ '^"''"'^ of larceny.-/ V
Stock, 1 Moo. 0. C. 87.
Where the prisoner covered some coals iu a cart with
slack, and wa. allowed to take the coals away, the wuer
be heving the load to be slack, and not intend ng to Z
with his property in the coab, it wa, held a larce .y ofC
coals.— A v. BramUy. L. <t C. 21.
Prevailing upon a tradesman to' bring goods, proposed
to be brought to a given place, under pine Zme
price shall then be paid for them, and Lther prevtw
upon him te leave them there in the care of a thirf peCf
ad then getting them from that person without paytg
as to get the^goods from the tradesman and not pay for
them.-iJ. V. Campbell. 1 Moo. C. C. 179.
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LARCENY.
In another case, a person by false pretences induced a
tradesman to send by his servant to a particular house,
goods of the value of two shillings and ten pence, with
change for a crown piece. On the way, he met the ser-
vant, and induced him to part with the goods and the
change for a crown piece, which afterwards was found to
be bad. Both the tradesman and servant swore that the
latter had no authority to part with the goods or change
without receiving the crown piece in payment, though the
former admitted that he intended to sell the goods, and
never expected them back again : it was held that the
offence amounted to larceny. — It. v. Small, S C. <S; P. 46.
The prosecutor met a man and walked with him.
During the walk, the man picked up a purse, which he
said he had found, and that it was dropped by the prisoner.
He then gave it to the prisoner who opened it, and there
appeared to be about forty pounds in gold in it. The pris-
oner appeared grateful, and said he would reward the man
and the prosecutor for restoring it. The three then went
to a public house and had some drink. Prisoner then
showed some money, and said if the man would let him
have ten pounds, and let him go out of his sight, he would
not say what he would give him. The man handed what
seemed to be ten pounds in money, and the prisoner
and prosecutor then went out together. They returned,
and prisoner appeared to give the ten. pounds back
and five pounds more. Prisoner then said he would do
the same for the prosecutor, and by that means obtained
three pounds in gold, and the prosecutor's watch and chain
from him. The prisoner and the man then left the public
house, and made off with the three pounds and the watch
and chain. At the trial, the prosecutor said he handed the
three pounds and the watch and chain to the men in terror,
LABOENY.
243
being afraid they would do somethiug to him, and not
expecting they would give hini five pounds. Held, that
the prisoner was properly convicted of larcenv.— iJ v
Hazell, 11 Cox, 597.
Prosecutor sold onions to the prisoners, who agreed to
pay ready money for them. The onions were unloaded at
a place indicated by the prisoners, and the prosecutor was
then induced to make out and sign a receipt which the
prisoners got from him, and then refused to restore the
onions or pay the price. The jury convicted the prisoners
of larceny, and said that they never intended to pay for
the onions, and that the fraud was meditated by them from
the beginning. Held, that the conviction was right —R
V. Slowly, et al., 12 Cox, 269.
So, taking goods the prisoner has bargained to buy is
felonious, if, by the usage, the price ought to be paid before
they are taken, and the owner did not consent to their being
taken, and the prisoner, when he bargained for them, did
not intend to pay for them, but mraut to get them into his
possession and dispose of them ^'or his own benefit, without
paying for them.— i2. v. Gilbert, 1 Moo. C. C. 185.
So, getting goods delivered into a hired cart, on the ex-
press condition that the price shall be paid for them before
they are taken from the cart, and then, getting them from
the cart, without paying the price, will be larcenv, if the
prisoner never had the intention to pay, but had, ab initio,
the intention to defraud.--/?, v. Pratt, 1 Moo. C. C. 250.'
So, where the prosecutor, intending to sell his horsej
sent his servant with it to a fair, but the servant had no'
authority to sell or deal with it in any way, and the
defendants, by fraud, induced the servant to part with the
possession of the horse, under color of an exchange for
another, intending all the while to steal it; this washoldon
to be larceny.— /J. v. Sheppard, 9 a <fe P. 121.
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244
LARCENY.
So, where the prisoner, pretending to be the servant of
a person who had bought a chest of tea deposited at the
East India Company's wai-ehouse, got a request paper and
pennit for the chest, and took it away with the assent of a
person in the company's service who liad the charge of it ;
it was held that this was larceny. — jR. v. Bench, B, i; R.
163.
Prisoner aad a confederate went to prosecutor's shop to
buy something, and put down a florin in payment. Prose-
cutor put the florin into the till and placed the change on the
counter, which the prisoner took up. The confederate said,
" You need not havo changed," and threw down a penny
on the counter, which the prisoner took up, and put a six-
pence in silver and sixpence in copper down, and asked
prosecutor to give him a shilling for it. Prosecutor took
a shilling from the till, and put it on the counter when
prisoner said, " You may as well give me the florin ba:,k
and take it all." Prosecutor took the florin from the till,
and put it on the counter, expecting to receive two shil-
lings of the prisoner's money in lieu of it. Prisoner took
up the florin, and prosecutor took up the silver sixpence
and the sixpence in copper, and the shilling put down by
herself, and was putting them in the drawer, when she saw
that che had only got one shilling of the prisoner's money
and her own shilling : but, at that moment, her attention
was diverted by the confederate, and both confederate and
prisoner quitted the shop. Held, upon a case reserved,
that this was a case of larceny, for the transaction of
exchange was not complete : prosecutor had not parted with
the property in the florin.^-i2. v. McKale, 11 Cox, 32.
On the other hand, if the owner give his property volun-
tarily, whatever false pretence be used to obtain it, no felony
can be committed.— 1 Haley 506 ; B. V. Adams, B. & B.
225.
LARCENY.
245
Thus, where, in a case of ring-dropping, the prisoners pre-
vailed on the prosecutor to buy the share of the other party,
and the prosecutor was prevailed on to part with his moneyl
intending to part with it for ever, and not with the posses-
sion of it only, it was held by Coleridge, J., that this was
not a larceny.— i2. v. Wilson, SC.<S;P.1U.
It was the duty of the prisoner to ascertain the amount
of certain dock dues payable by the prosecutors, and hav-
ing received the money from their cash keeper, to pay the
dues to those who were entitled to them. He falsely
represented a larger sum to be due than was due, and, paying
over the real amount, converted the difference to his own
use. This was held not to be a larceny.— fl. v. Thompson
L. d: G. 233. '
So, where the prisoner was sent by his fellow workmen
to get their wages, and received the money from the
employer done up in separate pieces of paper, and con-
verted the money to his own use, it was held upon an
indictment laying the property in the employer that the
prisoner could not be convicted, he being the agent of the
workmen.— ij. v. Barnes, 12 Jur. N. 8. 549. And see
R. v. Jacobs, 12 Cox, 151, post.
A cashier of a bank has a general authority to part
with his employer's money in payment of such cheques
as he may think genuine ; where, therefore, money has
been obtained from a cashier at a bank on a forged cheque
knowingly, it does not amount to the crime of larceny.
R, V. Prince, 11 Cox, 193. In this case, Bovill,C. J., said :
" The distinction between larceny and false pretences is very
material. The one is a felony and the other a misdemeanor ;
and, although, by reason of modern legislation, it has
become not of so much importance as formerly, it is still
desirable to keep up the distinction. To constitute a
)■ < n'
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246
LARCENY.
larceny, there must be a taking of the property 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 offence does not amount
to larceny, The cases cited for the prosecution were
cases where the servant who parted with the property
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. a 677.
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. — It. v, Harvey, 1 Leach,
467.
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
sent accordingly, gave the servant who brought it bills
which were mere Tabrications, and of no value ; it was
holden not to be larceny on the ground that the servant
parted 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.
The 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
LARCENY.
247
cheque was presented, there were no assets. HeU, 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— i2. v. 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.— i2. v. Nich-
olaon, 2 Leach, 610.
To constitute larceny, there must an original felon-
ious dtsign. Lord Coke draws a distinction between
such as gain possession animo furandi, 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 neighbor
took some of the goods to save them, but afterwards
converted them to his own use, it was held no felony.—
1 Leach, 411.
But if the original intent be wrongful, though not a
felonious trespass, a subsequent felonious appropriation
is larceny. So, where a man drove away a flock of lamb3
from a field, and in doing so inadvertently drove away
along with them a lamb, the property of another person,
and, as soon as he discovered that he had done so, sold
the lamb for his own use, and then denied all knowledge
of it. Held, that as the act of driving the lamb from the
field in the first instance was a trespass, as soon as
lie resolved to appropriate the lamb to his own use, the
trespass became a felony.— iJ. v. Riley, Dears. 149;
6 Cox, 88.
It is peculiarly the province of the jury to determine
■ -ill
248
LARCK9T.
with what intent any act is done ; and, therefore, though,
in general, he who has a possession of anything on deli-
very by the owner cannot commit larceny thereof; yet,
that must be understood, first, where the possession is
absolutely changed by the delivery, and next, where such
possession is not obtained by fraud, and with a felonious
intent. For, if, under all the circumstances of the case^
it be found that a party has taken goods from the owner,
although by his delivery, with an intent to steal them,
such taking amounts to felony. — 2 East, P. C, 685.
Overtures were made by a person to the servant of a
publican to induce him to join in robbing his master's
till. The servant communicated the matter to the master,
and, some weeks after, the servant, by the direction of the
master, opened a communication with the person who
had made the overtures, in consequence of which he came
to the master's premises. The master, having previously
marked some money, it was, by his direction, placed upon
the counter by the servant, in order that it might be
taken up by the party who had come for the purpose.
It was so taken up by him. Held^ larceny in such party.
^R, V. WilliaTYW, 1 C. <fc iT. 195.
3. — The taking, where the poaaession of the goods has
been obtained bond fide without any fraudulent intention
in the first instance. — If the party obtained possession of
the goods lawfully, as upon a trust for, or on account of,
the owner, by which he acquires a special property therein,
he cannot ai common law be afterwards guilty of felony
in converting them to his own use, unless by some new
and distinct act of taking, as by severing part of the goods
from the rest, with intent to convert them to his own use,
he thereby determines the privity of the bailment and the
special property thereby conferred upon him. — 1 Hale,
504 ; 2 East, P. C. 554.
LARCENT.
MO
But now, by sect. 4 of the Larceny Act., it is provided
that : " Every one who being a bailee of any chattel,
money or val.mble security, fraudulently takes orconverti
the same to his own use, or to the use of any person other
than the owner thereof, although he does not break bulk
or otherwise determine the bailment, is guilty of larceny
and may be convicted thereof upon an indictment for
larceny ; but this section shall not extend to any offence
punishable on summary conviction."
See R. V. Wells, I F. & F. 109. where it was held that
ft 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.— ii. v. Hoare, 1 F. d: F. 647- R v
Oarrett, 2F&F.U; R. v. Hassall, L. cfe (7. 58. ' ' *
The prisoner was intrusted by the prosecutor with
money to buy a load of coals, which were to be brought to
the prosecutor's by the prisoner in his own cart, the pris-
oner 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 tbe way to the prosecutor's abstracted a portion of the
coal P.nd converted it to his own use, delivering tho rest of
the coal to the prosecutor as and for the whole load. Held
that he was rightly convicted of larceny as a bailee.— i2 v
Bunkall, L. <S; C. 371 ; 9 Cox, 419.
A carrier employed by the prosecutor to deliver in his,
the prisoner's, cart, a boat's cargo of coals to persons named
m a list, to whom only he was authorized to deliver them
and having fraudulently sold some of the coals and appro^
priated the proceeds, is properly convicted of larceny as a
bailee.— iJ. v. Davies, 10 Cox, 239.
250
LARCENY.
ij
It seems that a married woman may Ikj a bailee within
the meaning of sect. 4 of the Ljirceny Act ; R. v. liobson,
L. (Cr C. 93, notwithstanding a previous ruling to the con-
trary by Martin, B., in R. v. Denmour, 8 Cox, 440.
See, pod, remarks under section 4 of the Larceny Act.
4. The taking where the offender has more than a
special property in the goods. If the goods of a husband
be taken with the consent or privity of the wife, it is
not larceny.— i2. v. Harrlaon, 1 Leach, 47 ; R. v. Avery,
Bell, a C. 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.
0. 104. And where a stranger took the goods of the hus-
band joinfi^/ with the wife, this was holden to be larceny
in him, he being her adulterer.— 12. v. Tolfree, 1 Moo. C. 0.
243, overruling R. v Clarke, 1 Moo. C. C. 376, note a.
Also, in R. V. Featherstone, Dears. 369, the prisoner
was charged with stealing twenty-two sovereigns and some
wearing apparel. The prosecutor's wife took from the pro-
secutor'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 pris-
oner arid the prosecutor's wife were afterwards seen toge-
ther, 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 pris-
oner 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, i' was
held that the conviction was right. Lord Campbell, C J., in
delivering the judgment, said : " We are of opinion tual U:is
conviction is right. The general rule of law is, that a wife
LARCENY.
251
cannot bo found guilty of larceny for stealing the goods of
her husband, and that is upon the principle that the hus-
band and wife are. in the eye of the law. one person ; but
this rule 18 properly and reasonably qualified when she
becomes an adulteress. She ^hereby determines her quality
of wife and her property in her husband's goods ceases."
-SeeR. V. Berry, Bell, C. C. 96. where the same principle
was maintained. *
And so it is. even though no adultery has been com-
mittee^ but the goods are taken with the intent that the
w.f. slmL elope and live in adultery with the stranger.-
M. V. ToUett, a^M.n2; M. v. 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 property with the intention of
committing adultery, the servant may be indicted for
stealing the property.— i?. v. Mutter8,L. d: C. 511
It seems, however, that if a wife elopes with m adul-
terer. it is no larceny in the adulterer to assist in carrying
away her necessary wearing apparel-iJ. v. Fitch, Dears.
<^B. 187. overruling on this point the direction of Cole-
ridge. J., in M. V. Tollett, cited ^^ra.
The prisoner who had lodged at the prosecutor's house
e t It, and the next day the prosecutor's wife also left
taking a bundle with 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 aft^r
all the things were found in the prisoner's cabin, o^
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
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252
LARCENY.
knowing it to have been stolen. — R. V. Deer, L. <S?. 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 possessi'ii. — iv. v. Eosenherg, \ C & K. 233.
When a wife absconds from the house of her husband with
her avowterer, the latter cannot be convicted of stealing
the husband's money missing on their departure, unless
he be proved to have taken some active part, either in
carrying away or in spending the money stolen.- — R. v.
Taylor, 12 Cox, 627.
Nor can an avowterer be found guilty of felonious
feceiving of the husband's property taken by the wife, as
a wife cannot steal her husband's property. — R. v. Kenny ^
13 Cox, 397.
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.
ffetd, 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
pony, cart and harness were not the property of the
woman ; and that if the j ury were of opinion he had
that knowledge, they were bound to convict him. R.
V. Harrison, 12 Cox, 19. — R. v. Flatman, 14 Cox, 396.
Under certain circumstances, indeed, a man may com-
mit felony of his own goods ; as if A. bail goods to B. and
LARCENY,
253
afterwards, anlmofurandi, steal the goods from B with
design to charge him for the value of them, this is felony
—1 Hale, 513; 2 East, P. a 558.
So where A. having delivered money to his servant to
carry to a certain place, disguised himself, and robbed thQ
servant on the road, with intent to charge the hundred
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 hi^
intent is to defraud the Xing, yet, if the bailee had an
interest in the possession and could have withheld it
from the owner, the taking is a larceny.^iJ. v. Wilkin,
son, a. & 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
transferred to another a special property in goods, retain-
ing m 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 sieal his goods in custodid legis But « if
the goods stolen were the general property of the defen-
dant, who took them from the possession of one to whose
c^-e they had been committed, as. for instance, 'rom ao
otfacer seizing them on an execution against the defendant
It must be shown that the latter knew of the execution
and seizure; otherwise the required intent does not
appear. The presumption, in the absence of such know-
ledge, would be, that he took the goods, supposing he had
the right so to do."— 2 Biskhp, Cr. proc. 749.
If a part owner of property steal it from the person
in whose custody it is, and who is responsible for its
ti
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254
LARCENY.
M
, Jl
m
ti<> a « .A
safety, he is guilty of larceny. — R. v. Bramley, R. & R.
478. See jpost, sect. 58 of the Larceny Act, and remarks
under it.
A wife may steal the goods of her husband which have
been bailed or delivered to another person, or are in the
possession of a person who has a temporary special pro-
perty in them. — 1 Hale, 513.
The wife cannot commit larceny in the company of
her husband ; for it is deen ed his coercion, and not her
own voluntary act. Yet, if she do in his absence, and,
by his mere command, she is then punishable as if she
were sole. — R. v. Morris, R. <Ss R. 270 ; R. v. Robaon,
L. & C. 93.
Husband and wife were jointly indicted for stealing.
The husband was in the employ of the prosecutors, and
was seen near the spot when the property stolen arrived
at the prosecutor's. The next day, the wife was seen
near the spot where her husband was engaged on his
work. She was at a place where there was no road,
with a bundle concealed, and was followed home. On
the following day, she pledged the stolen property at
two different places. At one of the places, where she
was not known, she pledged it in a false name. Held,
that, upon this evidence, the wife might be convicted of
stealing the property. — R. v. Cohen, 11 Cox, 99.
The doctrine of coercion, as applicable to a crime com-
mitted by a married woman in the presence of her hus-
band, only raises a disputable presumption of law in her
favor, which is, in all cases, capable of being rebutted
by the evidence : this disputable presumption of law ex-
ists in misdemeanors as well as in felonies, and the ques-
tion for the jury is the same in both cases ; the doctrine
in question applies to the crime of robbery with violence
LARCENY.
255
Semhle: where a man and woman are indicted together
for a joint crime, and it appears from the evidence for the
prosecution that they had lived together for some months
as husband and wife, having with them an infant who
passed as their child, it is not necessary for the woman to
give evidence of her marriage in order to entitle her to
the benefit of the doctrine of coercion, although the indict-
ment does not describe her as a married woman.— iJ. v.
Torpey, 12 Cox, 45.
2. — THE CARRYING AWAY.
To constitute larceny, there must be a carrying away,
asportation, as well as a taking. The least removing of
the thing taken from the place where it was before is Suf-
ficient for this purpose, though it be not quite carried off.
And, upon this ground, the guest, who, having taken
off the sheets from his bed, with an intent to steal them,
carried them into the hall, and was apprehended before he
could get out of the house, was adjudged guilty of larceny.
So, also, was he, who, having taken a horse in a close, with
an intent to steal him, was apprehended before he could
get him out of the close. And such was the case of him
who, intending to steal plate, took it out of the trunk
wherein it was, and laid it on the floor, but was surprised
before he could remove it any further.— 2 East, P. C. 555 ;
3 Burn, 214. Or if a servant, animo furandi, take his
master's hay from his stable, and put it into his master's
waggon.— iJ. v. Gruncell, 9 C. Jt P. 365.
H. was indicted for stealing a quantity of currants,
which were packed in the forepart of a waggon. The pris-
oner had laid hold of this parcel of currants, and had got
near the tail of the waggon with them, when he was appre-
hended ; the parcel was afterwards found near the middle
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LARCENY.
of the waggon. On this case being referred to the twelve
judges, they were unanimously of opinion that, as the pris-
oner had removed the property from the spot where it was
originally pltved, with intent to steal, it was a taking and
candying away.—Coalett'a Case, 2 East, P. C. 556.
Prisoner had lifted up a bag from the bottom of a boot
of a coach, but was detected before he had got it out ; it did
not appear that it was entirely removed from the space it
at first occupied in the boot, but the raising it from the
bottom had completely removed each part of it from the
space that specified part occupied : Held, that this was a
complete asportation. — R. v. Walsh, 1 Moo. C. C. 14.
The offence of simple larceny is complete, if the defen-»
dant drew a book from the inside pocket of the prosecu^p
tor's coat about an inch above the top of the pocket, though
the prosecutor then suddenly putting up his hand, the
defendant let the book drop, and it fell back into the prose-
cutor's pocket. — R. V. Thompson, 1 Moo. C. 0. 78.
On the other hand, a mere change of position of the
goods will not suffice to make out a carrying away. So,
where W. was indicted for stealing a wrapper and some
pieces of linen cloth, and it appeared that the linen was
packed up in the wrapper in the common form of a long
square, which was laid length-way in a waggon, and that
the prisoner set up the wrapper on one end in the waggon
for the greater convenience of taking the linen out, and
cut the wrapper all the way down for that purpose, bat
was apprehended before he had taken anything ; all the
judges agreed that this was no larceny, altlioughhis inten-
tion to steal was manifest. For a carrying away, in order
to constitute felony, must be a removal of the goods from
the place where they were ; and the felon, must, for the
instant at least, have the entire and absolute possession of
them.— iJ. v. Cherry, 2 East, P. C. 556.
LARCENY.
257
So, where one had his keys tied to the strings of his
purse in his pocket, which W. attenipted to take from
hun, and was detected with the purse in her hand; but
the strings of the purse still hung to the owner's pocket
by means of the keys ; this was ruled to be no asportation.
— Wilkinson's case, 1 Leach, 321.
So in another case, where A. had his purse tied to his
girdle, and B. attempted to rob him : in the struggle, the
girdle broke, and the purse fell to the ground, B. not hav-
ing previously taken hold of it, or picked it up afterwards.
It was ruled to be no taking.— -1 Hale, 533.
Upon an indictment for robbery, the prisoner was found
to have stopped the prosecutor as he was carrying a fea-
ther bed on his shoulders, and told him to lay it down, or
he would shoot him ; on which the prosecutor laid the bed
on the ground, but the prisoner was apprehended before he
could take it up so as to remove it from the spot where it
lay, the judges were of opinion that the offence was not
complete.— ^arreW's case, 2 East, P. C. 557.
Where the prisoner, by means of a pipe and stopcock
turned off the gas belonging to a company before it came
into the meter, and so consumed the gas, it was held that
there was a sufficient severance of the gas in the entrance
pipe to constitute an asportavit.~R. v. White, 1 Dears
& B. 203.
The same principle was upheld in R. v. Firth, 11 Cox,
234 ; see 'post, under section 202 of the Procedure Act.
In the cases cited before the two last preceding, a
verdict of guilty of an attempt to commit the offence
charged could now be givra, under section 183 of the
Procedure Act.
If the thief once take possession of the thing, the offence
is complete, though he afterwards return it.— 3 Burn, 215.
•WIW*
258
M.BCBNY.
Where it is one eontinning transaction, though there be
several distinct asportations in law by f»everal persons, yet
all may be indicted as principals, who concur in the felony
before the final carrying away of the goods from the virtual
custody of the owner ; 2 East, P. G. 657 ; and if several
persons act in concert to steal a man's goods, and he is
induced by fraud to trust one of them, in the presence of
the others, with the possession of the goods, and another
of them entice him away, that the man who has his goods
may carry them off, aU are guilty of felony ; the receipt by
one is a felonious taking by olL — It. v. Standley, R. & B,
305.
And where property which the prosecutors had bought;
was weighed out in the presence of their clerk, and deli-
vered to their carter's servant to cart, who let other persona
take away the cart, and dispose of the property for his
benefit jointly with that of the other persons, it was held,
that the carter's servant, as well as the other persons, was
guilty of larceny at common law. — R. v. Harding, R. S
R. 125.
3. THE GOODS TAKEN.
The property taken must, to constitute larceny at com-
mon law, be personal property, and of some intrinsic
value, though it need not be of the value of some coin
known to the law. — R. v. Morris, 9 (7. <fe P. 349; 3
Bum, 216 ; R. v. Walker, 1 Moo. C. C. 155.
Things real, or which savour of the realty, choses in
action, as deeds, bonds, notes, etc., cannot be the subject
of larceny, at common law.
But now, for these, see the Larceny Act, post ; as to
larceny of stamps, see sec. 2. Larceny Act.
No larceny, at common law, can be committed of such
LABOENY*
259
animals m which there is no property, either absolute or
quahfied ; as of beasts that are fera, naturce and unre.
claimed. But if they are reclaimed or confined, or are
practically under the care and dominion of the prosecutor
and may serve for food, it is otherwise.
So young pheasants, hatched by a hen, and under the
care of the hen in a coop, although the coop is in a field at
a distance from the dwelling-house, and although the
pheasants are designed ultimately to be turned out and to
become wild, are the subject of larceny._i2. v. Oory, 10
Partridges were reared from eggs by a common hen ;
they could fly a little, but still remained with the hen as
her brood and slept under her wings at night, and from
their inability to escape were practically in the power and
dommion of the prosecutor : Held, that the/ wore the
subject of larceny at common law— i2. v. 8hiokU, 11 Cox,
The prisoner was indicted for stealing one dead par-
tridge, and the proof was that the partridge was wounded
but was picked up or caught bj the prisoner while it was'
ahve but in a dying state : Held, that the indictment was
not proved.— i2. v. iJoe, 11 Cox, 554.
iSabbits were netted, kiUed, and put in a place of de-
posit, VIZ : a ditch, on the land of the owner of the soil on
which the rabbits were caught, and some three hours after-
wards the poachers came to take them away, one of whom
was captured by gamekeepers who had previously found
the rabbits, and lay in wait for the poachars : Held, that
this did not amount to larceny,— iJ. v. Townley 12
Cox, 59. Water in the pipes of a company may be' the
subject of larceny.— /Vens v. O'Brien, 15 Cox, 332.
The flesh of such animals as are ferce naturce may be
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liARCENY.
the subject of larceny. In R. v. Gallears, 1 Den. 501,
the prisoner was indicted for stealing a ham. The prisoner
objected that it did not appear by the indictement that the
article stolen was the subject of larceny ; that it might
have been the ham of an animal /erce naturcB, a wild
boar, for instance, which had been stolen. Upon a case
reserved the objection was overruled. " I don't under-
stand the objection," said Patteson, J. ** Supposing it
turned out on proof to be the ham of a wild boar, why
should the prisoner be at liberty to take it from the prose-
cutor without becoming criminally liable ? The doctrine
respecting the description of animals in an indictment
applies only to live animals, not to parts of the carcasses
of animals when dead, such as a boar's head. Do you find
in works on natural history that there is any living
animal called a ham ?"
See the Larceny Act, post, as to larceny of pigeons,
oysters, animals of different species, etc.
4. THE OWNER.
The goods taken, to constitute larceny, must be the pro-
perty of another person, and not of the party taking them.
But it has been seen, ante, that the owner, in certain cases,
may commit larceny of his own goods.
See post, under head " Indictment."
5.— AGAINST owner's CONSENT.
The taking must be against the will of the owner. The
primary inquiry to be made is, whether the taking were
invito domino, that is to say, without the will or appro-
bation of the owner; for this is of the very essence of
larceny and its kindred offence, robbery. — 3 Burn, 218.
But where a servant, being solicited to become an
LARCENY.
261
accomplice in robbing his master's house, informed his
master of it, and the master thereupon told him to carry
on the affair, consented to his opening the door leading to
the premises, and to his being with the robbers during the
robbery, and also marked his property, and laid it in a
place where the robbers were expected to come : it was
holden, that this conduct of the master was no defence to
an indictment against the robbers.—^Sfee Bishop, 1 Cr L
262, arwi 2 CnZ. 811.
An indictment charged the stealing of "nineteen shil-
hngs m money " of the moneys of A. B. It appeared that
A. 13. got into a merry-go-round at a fair, and handed the
pnsoner a sovereign in payment for the ride, asking her
to give change. The prisoner gave A. B. eleven pence
and said she would give the rest when the ride was
finished. After the ride was over the prisoner said A B
only gave her one shilling, and refused to give her the
nineteen ahiUings change : Held, that the prisoner could
not be convicted upon this indictment of stealing nineteen
shimngs.~iJ. V. Bird, 12 Cox, 257.
B. making a purchase from the prisoner, gave him half
a sovereign in mistake for a six pence. Prisoner looked
at It and said nothing but put it into his pocket. Soon
aftei wards B. discovered the mistake, and returned and
'"^anded the restoration of the half sovereign. Prisoner
.: right, my boy; I'll give it to you," but he did
m '. • ^t, and was taken into custody : Held, not to be
a la. j—R. V. Jacobs, 12 Cox, 151. Obtaining money
from any one by frightening him, is larceny.— ij. v. Lovell
8 Q. B. D. 185.
6. — THE FELONIOUS INTENT.
The taking and carrying away must, to constitute lar-
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262
LARCSNY.
ceny, be with a felonious intent entertained at the time
of the taking. '
Felony ia always accompanied with an evil intention,
and, therefore, shall not be imputed to a mere mistake or
tnisanimadversion : 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 HawkiTia, 142.
For it is the mind that make the ta' ing of another*^
goods to be felony, or a bare tresspass only ; but, because
the variety of circumstances is so great, and the complica-
tion thereof so mingled, that it is impossible to prescribe
all the circumstances evidencing a felonious intent or the
contrary, the same must be left to the due and attentive
consideration of the judge and jury : 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 felonious 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, hondjlde, 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 felony. — 1
Hale, 507. L&motVs case and Farre'a case, Kelyng'a^
C. C, 64, 65, reprint by Stevens and Haynes.
The prisoner had set wires, in which game was
caught. The prosecutor, a game - keeper, took them
away for the use of the lord of the manor, while the
LARCERT.
263
prisoner was absent. The prisoner demanded his wires
and game, with menaces, and under the influence of fear
the prosecutor gave them up. The jury found that the
prisoner acted under a bond fide impression that the
game and wires were his property, and that he merely,
by soma degree of violence, gained possession of what
he considered his own. It was held no robbery,
there being no animua furandi.—R, v. Hall 3 <£; P
409. ' '
And where a letter, directed to J. O. at St. Martin's
Lane, Birmingham, inclosing a bill of exchange drawn
m favor of J. 0., was delivered to the defendant, whose
name was J. 0. and who resided near St. Martin's Lane,
Birmingham ; but, in truth, the letter was intended for
a person of the name of J. O. who resided in New HaU
Street; and the prisoner, who, from the contents of the
letter, must have known that it was not intended for him,
applied the bill of exchange to his own use; the judged
held that it was no larceny, because at the time when The
letter was delivered to him. the defendant had not the
animus Jurandi.^B. & MimMow, 1 Moo. C. C. 160 ;
And to constitute larceny, the intent must be to deprive
the owner, not temporarily, but permanently, of his
property. R, v. PUllipa, 2 East, P. C. 662; Archhold,
326 ; 3 Bx.rn, 220. But see post, sect. 85 of the Larceny
Act, and remarks thereon.— ^ee iJ. v. Hemmings, 4 F.
& F. 50.
Money was given to the prisoner for the purpose of
paying turnpike tolls at two gates on his journey
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 £o no toll was payable there, and
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264
LARCENY.
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, and that the ques-
tion of felonious intention had been distinctly left to the
jury, the Court quashed the conviction. — R. v. DeeHng, 11
Cox, 298.
In all cases of larceny, the questions whether the defen-
dant took the goods knowingly or by mistake ; whether
he took them hondjuie under a claim of right or other-
wise, and whether he took them with an intent to return
them to the owner, or to deprive the owner of them alto-
gether, 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, 224.
Upon an indictment for larceny, it appeared that the
prisoner had been instructed by the wife of the prosecutor
to repair an umbrella. After the rei)airs were finished,
and it had been returned to the prosecutor's wife, a dis-
pute arose as to the bargain made. The prisoner there-
upon carried away the umbrella as a security for the
amount alleged by him to be due for repairing it. Black-
burn, J., left it to the jury to say whether the taking by
the prisoner was an honest assertion of his right, or only a
colorable pretence to obtain possession of the umbrella:
verdict, not guilty. — R. v. W(ide,\l Cox, 549.
A depositor in a post office savings bank obtained a war-
rant for the withdrawal of ten shillings, and presented 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
lARCENT.
265
that sum upon the counter. The clerk entered eight pounds
wxteen shillings and ten pence in the dopobitor'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'
havmg intended that the property in the money should
belong to the prisoner through mistake, the prisoner know-
ing of the mistake, and having the anirmta furandi at the
time, was guilty of larceny. Per Bovill, C. J., Kelly, C B
and Keating, J., that the clerk, having only a Umited Autho-
rity under the letter of advice, had no power to part with
the property in the money to the prisoner, and that there-
fore, the conviction was right. Per Pigott, B., that, before
possession of the money was parted with, and while it was
on the counter, the prisoner had the animus ficmndi,
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 larceny. Per Bramwell, B., and Brett,
J., that the authority of the clerk authorized the parting
with the possession and property in the entire sum laid
down on the counter — R v.Middleton, 12 Cox, 260, 417.
Larceny hy finding.— lU mB.n 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 the doctrine must be taken with great limitation, and
' n
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266
LARCENY.
can only apply where the finder bond fide supposes the
goods to have been lost or abandoned by the owner, and
not to a case in which he colors a felonious taking under
that pretence. — Archbold, 330 ; R. v. Kerr, 8 C. <f? P.
176 ; R. V. Meed, G. & M. 306 ; R. v. Peters, 10. S K,
245 ; R. V. MoU, lC.<tK. 417.
The true rule of law resulting from the authorities
on the subject has been pronounced to be that " if a man
find goods that have been actually lost, or are reason-
ably supposed by him to have been lost, and appropriates
them, with intent to take the entire dominion over them,
really believing, when he takes them, that the owner can-
not be found, it is not larceny ; but, if he takes them with
the Uke intent, though lost, or reasonably supposed to be
lost, but reasonably believing that the owner can be found,
it is larceny." — R. v. Thurbom, 1 Den. 388; R. v. Dixon,
Dears. 580; R. v, Christopher, Bell, 0. C. 27.
In R. V. Moore, L. <fc G. 1, on an indictment for steal-
ing 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 ; that at the time
he picked it up he did not know, nor had he reason-
able means of knowing, who the owner was ; that he after-
wards acquired knowledge who the owner was, and after
that converted the note to his own use ; 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 cor.victed 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
liAHOBKY,
267
believe at the time of the finding that the owner could b©
tonnd.-^Archhold, 330.
The case of M, v. Olyde, 11 Cox, 103» shows that the
belief by the prisoner at the time of the finding of the
qhattel that he could find the owner is a necessary ingre-
dient in the offence, and that it is not sufficient that he
intended to appropriate the chattel at the time of finding
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 refused to give up the
sovereign. There was, however, no evidence that he be-
lieved, at the time of finding the sovereign, that he could
ascertain who the owner was, and the prisoner was, there-
fore, held not guilty of larceny.
In JR. V. Leaves, 11 Gox, 227, the facta 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-sovereign and a bag. On the same evening, about two
hours after the finding, the prisoner was told that a womaa
had lost money, upon which the prisoner told her informant
to mind her own business, and gave her ha}f «» sovereign.
It was held by the majority of the Irish Court of Criminal
Appeal, that this case could not be distinguished from M,
V. Olyde, mpra; that there was nothing to show that at
the time the child brought her the money, the prisoner
J'S'P'J
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268
LARCENY.
knew the property had an owner, or, at all events, to show
that she was under the impression that the owner could be
found, and that, therefore, 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 prisoner,
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 satisfied that 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 pris-
oner, at the time he received the note, believed the owner
could be found.— i2. v. Knight, 12 Cox, 102.
It is clearly larceny if the defendant, at the time he
appropriates the property, knows the owner; and, therefore,
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 par-
cel left by a passenger in his coach by mistake, it is felony
if he knows the owner, or if he took him or set him down
at any particular place, where he might have inquired for
him.— 22. v. Wynne, 2 East, P. C. 664; R. v. Lear, 1
Leach, 415 ; Archbold, 331.
So, in every case, where the property is not, properly
speaking, lost, but only mislaid, under circumstances which
LARCENY.
269
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 person who fraudu-
lently appropriates property so mislaid is guilty of larceny.
—B. V. West, Dears. 402.
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.— i2. v. Pope 6
a & p. 346; R. v. Mols, I C. & K. 417; R. v. Preston,
2 Den. 353 ; Archhold, 331.
Doing an act openly doth not make it the less a felony
in certain cases. Z Burn, 22Z. So, where a person came
into a seamstress's shop, and cheapened goods, and ran
away with the goods out of the shop, openly, in her sight,
this was adjudged to be a Mony. —Chiser's Case, T.
Baym. 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 B. v. Trehilcock, 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
recommendation 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 lucri causd.—Z Burn, 224;
B. V. Morfit, B. S B. 307; B. v. Oruncell, 9 C. <S; P. 365 ;
B. V. Handley, 1 C. <k M. 547; B, v. Privett, 1 Den.
193; B. V. Jones, 1 Den, 188; B. v. Cabbage, B. S B
292.
11
I
i
r
(4
•fXM
270
LARCENY.
** The English courts seem to have overthrown the old
notion of lucri cauad'* "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 A
larceny?"— iJ. v. Jones, 1 Den, 188; 2 Bishoj., Dr. L,
486.
, 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, ahd whethet
it be or not likely to pass readily from hand to hand. — R. V*
Fartridge, 7 C. dh P. 551 ; 3 Bum, 225 ; Arohbold, 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 fea-
thers of one found on the prisoner, from the neck of which
feathers had been remove \ 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 h' had lost
toy : Held, that there was evidence to support a, conviction
for larceny. — R. v. 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 v/arehouse, where he had no
business to be, having on him a quantity of pepper of the
game 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 t' e large quantity in the ware-
house, it could not be proved that any pepper had been takeft
from the bulk. It was objected that, as there was no direct
LARCENY,
271
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 warrant a conviction^l
•tl. V. Burton, 6 Cox, 293.
Indictment-^ThB form of indictment for simple larceny
as given in Archbold, 31 3, is as follows :
The Jurors for Our 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, against the peace of Our Lady
tUe 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 foUowing
from, may be added, under sect. 134 of the Procedure Act
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 steted, to wit, on ......... six silver
teaspoons, of the goods and chattela of the said J N
feloniously did steal, teke and carry away: against 'the'
lorm of the statute in such case made and provided
tV\^}^ Punis; ^nent for simple larceny, see 'sects. 5
ana «b of the Larceny Act^ poet.
It is not necessary to allege the value of the property
stolen, except whore the value is of the essence of the
offence, or has any bearing on the punishment, as by sees,
86 of tne Larceny Act, where an additional punishment i,
decreed, m cases where the value of the property stolen
exceeds two hundred dollars. But some value must be
proved at the trial.— 2 Ruaa. 344.
'BWr^fflER*
272
LARCENY.
By sect. 195 of the Procedure Act, 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 thereof be
entitled to be acquitted, but the jury may return as their
verdict that the defendant is not guilty of larceny but is
guilty of embezzlement. See this section and remarks
under it, post.
And by section 198 of the Pre v * • > Act, see post, if
upon the trial of any person for lart- ^c 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 201 of the Procedure Act, 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 sec. 85 of the
Larceny Act, they may find him so guilty.
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 85 of the Larceny
Act, the conviction is illegal. — R. v. Oorbutt, Dears. &
5. 166 ; the offence found by the jury must be the offence
proved.
By section 183 of the Procedure " t, if, on 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, 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.
LARCINY.
273
As to the venue, in indictments for larceny, etc see
C:- ' '/; f •■ "• '"• ''• ''' "' "■" f--dut Act
laid i/r t ■;; "■' ''""°""'"" '"'^■' ■«" ''^ p'-^^ ««
The goods stolen must be proved to be the absolute or
speml property of the person named in the indictment
But any variance between the indictment and the evidence
n h,s respect, as well as in the description of the propert^
stolen, may now be amended. ^ ^ ^
f^.t^'u^y'''^'''^ '^''^'^ ^^^ P"^"^^'- ^^^h stealing nine-
teen shiUrngs and six pence in money of the prosecutor. At
he 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. Thereupon the
-Tnlrl'iV'' '°f '"^"' '^ ^^^'^-^^^ '-' ^^^' -ords
mneteen shillings and six pence " and inserting in lieu
thereo "one sovereign." The jury found the prisoner guilty
hlld fw ;^/°^«^^g°- Upon a case reserved, the judge;
held that the court had power so to amend under 14 15
v., c. 100. 8. 1, (sect. 238 of the Procedure Act).-iJ v
Giimble, 12 Cox, 248; R v. Marks, 10 Cox 167 *
See section 117 of the Procedure Act. as to cases where
property need not be laid in any person
See sections 118 and 119 of the said Procedure Act
as to stating the ownership, in cases of partnerships, joint '
enanci^. or joint stock companies ; also sections 120 121
122 of the said Act as to the statement of the owne'rship
in certain other cases, and sections 129 and 130 as to the
description of instruments and money in indictments
Where goods are stolen out of the possession of the
T
274
LARCENY.
bailee, they may be described in the indictment as the pro-
perty of the bailor or of the bailee; but where a bailor
steals his own goods from the bailee, they must be described
as the goods of the h&ilee.—Archhold, 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 K—R. v. King, 12 Cox, 134.
Prosecutor bought a horse, and was entitled to the
return of ten shillings chap money out of the purchase
money. Prosecutor afterwards, on the same day, 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 prosecutor 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 prosecutor, and produced two half-sovereigns.
The prosecutor 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-sovereign 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
LARCENY,
275
sovereign— iJ. v. Tmst, 12 C'oa;, 509.
W. let a horae oa hire for a week to C, who fetched
It after th, day s work was done. The prisoner went to
C. one day j,.3t a, the day's work wa, done, and rr«da
:2fo: wth" 'T J'"' "^ ""^'-^ &>3elT 'fhave"
:n^: rut: ^^r rr ^ ^- "-' -
oonWctedof.arceny„n^::t^t:Ltl;™r^^^^^^^
of the horse to be in W.~R v. ^«,<fai,, I2 (7o^ 598
By section 135 of the Procedure Act ^sfuis Lf„,
to add a count or several counts for fejiouly recdwt
the stolen pn,^rty to any indictment for larceny and
s7 Th .^'"' '' " '^'"'^'' '^'^ P™"-' al»ayT'to do
so. And where a prisoner i, cha.^d with stealfnVand
receivma the jury may «,nvict of receiving, though the
evmence m.ght have warranted a verdict* f gX as
pnnc.pal m the second degree.-ij. v. Bilton, BMc
!„ ■"• V"«^"^. i- "fe C. 427; and Onavea' remark,
upon %t, 3 Rim. 668. "'nMria
See sees. 21 and 22 of the Procedure Act as to venue
m certam cases ; sec. 25 as to aTest without warrant rf
any person found committing any offence against the
Larceny Act; sec. 52 as to search warrants- sec 125 a!
to .ndrctments for steaUng (K,stal cards, stamps el ; el
a,!i f!,*" »"■'='■»»"'' f°f stealing by lodgers; sees 134
and 130 as to jomder of offences; sees. 195 196 iq«
99, 201, 202 as ,„ verdict in certain cas.;!!',, 250 J^
251 as to restitution of stolen property.
'IS:
276
LABCENY.
To obtain money by the trick known as " ringing thO;
changes" is larceny.— iJ. v. Hollis, 15 Cox, 345.
A. was indicted for larceny under the following
circumstances : — R., intending to lend A. a shilling, hand-
ed him a sovereign, believing it to be a shilling. A., wheu,
he received the sovereign, believed it to be a shilling, and did
not know until subsequently that it was not a shilling..
Immediately A. became aware that it was a sovereign,
and although he knew that R. had not intended to part
with the possession of a sovereign, but only with the
possession of a shilling, and although he could easily have
returned the sovereign to R., fraudulently appropriated it
to his own use. Prisoner convicted of larceny. Upon a
case reserved, seven judges held the conviction right, and
seven were of opinion that these facts did not constitute
larceny.— JR. v. AahweU, 16 Cox, 1.
In R. v. Flowers, 16 Cox, 33, held, that where money
or goods have been innocently received, a subsequent
fraudulent appropriation will not render the receiver guilty
of larceny, the above lastly cited case not being an au-
thority to the contrary.
A declaration made by a prisoner tried on an indictment
for larceny, before he was charged with the crime in
answer to a question asked him where he got the property,
is evidence on his behalf.
. On the trial of an indictment for larceny of a watch, the
prisoner's counsel called a witness, W., who stated that
the prisoner was drinking at a public house on the evening
when the alleged offence was committed, and had the
watch with him ; that W. went home with the prisoner,
and they sat down in the house j that while they where
sitting there the prisoner fell upon the floor and the watch
fell out of his pocket, and W. picked it up and asked him
11
LAROENT,
277
'tW-
Where he got it. His answer to this question was rejected.
Ihe prisoner being convicted, it was held by the coiiit on
a case reserved, that the evidence should have been
received, and the conviction was quashed— ne Queen v
Ferguson, 3 Pugs. (N. B.) 612.
H and W. were jointly indicted for stealing. H. was
found guilty, but the jury could not agree as to W. and
were discharged from giving a verdict as to him. Held,
that the verdict warranted the conviction of IL.^The
Queen v. Hamilton and Walsh, 23 N. B. Eep. 540.
ill
H
CHAPTER 164.
AN ACT EESPECTING LARCENY AND SIMILAR
OFFENCES.
ER Majesty, by and with the advice and con«ent of the Senate
and House of CommonB of Canada, enacts as follows :—
SHORT TITLE.
1. This Act may be cited as " The Larceny Act"
INTERPRETATION.
2. In this Act, unless the context otherwise requires,—
(a.) The expression «' document of title to goods " includes any bill
of lading, India warrant, dock warrant, warehousekeeper'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 buHint-BS as proof of the possession or control 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 represented or therein mentioned or referred to;
(6.)' The expression "document of title to lands" includes 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, to any real property, or to any interest in any real
property, or any notarial or registrar's copy thereof, or any duplicate
instrument, memorial, certificate or document authorized or required
by any law in force in any part of Canada, respecting registration of
titles, and relating to such title ;
((?.) The expression " trustee " means a trustee on some express
trust created by some deed, will or instrument in writing, or a trustee
of personal property created by parol, and includes the heir or per-
sonal representative of any such trustee, and every other person upon
or to whom the duty of such trust has devolved or come, and also an
executor and administrator, and an official manager, assignee, liqui-
dator or other like officer acting under any 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
expression « trust," includes whatever is by that law an « adminia-
tration;**
LARCENY.
279
(d.) TheexprcHBion" valuable security" inclu.le« any order exche
quer acquittance or other security whatHtM^ver.entitlinK orevi.lencinu
ti.e title of any perHon or body corporate to any share or interest in
Bny public Btoclc or fund, whether of Canada or of any Province
thereof or of the United Kingdom, or of Great Britain or Ireland, or
of any Britmh colony or possession, or of any foreig.i state, or in any
M.nd of any body corporate company or society, whether within
Canada or the United Kmgdom, or any British colony or j^ssession,
or in any foreign state or country, or to any deposit in any savings
bank or other bank, and also includes any debenture, deed, bond,
bill, note, warrant, order or other security whatsoever, for money or
for payment of money, whether of Canada or of any Province thereof.
or of the United Kingdom, or of any British colony or possession, or
of any foreign state, and any document of title to lands or goods as
hereinbefore defined, and any ntamp or writing which secures or
evidences titk o or interest in any chattel personal, or any release,
receipt, discharge, or other instrument evidencing payment of money,
or the delivery of any chattel personal , and every such valuable
security shall, where value is material, be deemed to be of value
equal to that of such unsatisfied money, chattel personal, share,
interest or deposit, for the securing or payment of which, or delivery
or transfer or sale of which, or for the entitling or evidencing title to
which, such valuable security is applicable, or to that of such money
or chattel personal, the payment or delivery of which is evidenced by
such valuable security ;
(c.) The expression «• property " includes every description of real
and personal property, money, debts and legacies, and all deeds and
instruments relating to or evidencing the title or right to any property,
or giving a right to recover o! receive any money or goods, and also
not only such property as was originally in the possess! or under
the control of any person, but also any property into or for which the
same ban been converteil or exchanged, and anything acquired by
such conversion or exchange, whether immediately or otherwise,
and also any postal card, postage stamp or other stamp issued or
prepared for issue by the authority of the Parliament of Canada, or
of the Legislature of any Province of Canada, for the payment of any
fee, rate or duty whatsoever, and whether still in the possession of
the Crown, or of any person or corporation, or of any officer or agent
of the Government of Canada, or of the Province by the authoritv of
the Legislature whereof it was issued or prepared for issue ; and such
postal card or stamp shall be held to be a chattel, and to be equal in
value to the amount of the postage, rate or duty which can h-. paid
by It, and is expressed on its face in words or figures, or both j
! ! l|
lABCEKT.
(f.) The expreeeion " cattle " includes any horse, mule, ass, swine,
sheep or goat, as well as any neat cattle or animal of the bovine
species, and whatever is the age or sex of the animal, and whether
castrated or not, and by whatever technical or trivial name it is
known, and shall apply to one animal as well as to many ;
{g.) The expression •* banker" includes any director of any incor-
orated bank or banking company ;
(A.) The expression " writing " includes any mode in which and
any material on which words or figures at length or abridged are
written, printed or otberw'ne expressed, or any map or plan is
inscribed ;
(i.) The expression "testamentary instrument" includes any will
codicil or any other testamentary writing or appointment, as well
during the lif6 of the testator whose testamentary disposition it pur-
ports to be, as after his death, whether the same relates to real or
personal property, or both ;
O".) The expression " municipality " includes the corporation of
any city, town, village, township, parish or other territorial or local
division of any Province of Canada, the inhabitants whereof ar»
incorporated or have the right of holding property for any purpose ;
(k.) The night shall, for the purpose of this Act, 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;
(I.) Whenever the having anything in the possession of any person
is in this Act expressed to be an offence, then if any person has any
such thing in his personal custody or possession, or knowingly or
wilfully has any such thing 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
or thing is so had for his own use or benefit or for that of another,
such person shall be deemed to have such matter or thing in his cus-
tody or possession within the meaning of this Act, and if there are
two or more persons, any one or more of whom, with the knowledge
and consent of the rest, has any such thing in his or their custody or
posses-'ion, it shall be deemed and taken to be in the custody and
possession of all of them — 32-33 V.,c. 2I,«.l. 36 F., c. 33, *. 1 , ^arf.
40 v., c. 29, a. 1. 24-25 F., c. 96, a. 1, Imp.
LARCENY.
SIMPLE LARCENY.
281
3. Every larceny, whatever, is tlie value of the property stoleD,
Bliall be deemed to b« of the same nature, and shall be subject to the
same incidents in all respects as grand larceny was before the dietinc-
t>on between grand and pdit larceny was abolished.— 32-33 F.. c 21
4.2. 24-25 r.,c.%,s.2,Imp.
Grand larceny was when the value of the thing stolen
was above twelve pence; petit larceny, when the thing
stolen was of the value of twelve pence or under. This
distinction was abolished in England, on the 21st day of
June, 1827.
LARCENY BY BAILEES.
4. Every one who, 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 than the owner thereof, although he does
not break bulk or otherwise determine the bailment, is guilty of
larceny, and may be convicted thereof upon an indictment for larceny ;
but this section shall not extend to any offence punishable on sum-
mary conviction.-32-33 F., c. 21, s. 3. 24-25 F., c. 96, *. 3, Imp.
See a. y. Macdonald, 15 Cox, 757, 15 Q. B. D. 323.
Greaves, on this clause, remarks : " Although there is
no doubt that a person might have been convicted of any
offence within this clause on a common indictment
for larceny, M. v. Haigh, 7 Cox, 403, as it expressly
enacts that the offender ' shall be guilty of larceny,' yet
to prevent all doubt, it is provided (by the Consolidated
Act) that the offender may be convicted on an indictment
for larceny. It was held, that the bailment intended by
the 20-21 v., 0. 64, s. 4, was a deposit of something
which was itself to be returned; and therefore a person
with whom money had been deposited, who was under
an obligation to return the amount, but not the identical
coin deposited, was held not to be a bailee of the money
within that section.-.iJ. v. ffasaall, L. <& G. 58. The
%H
■i Mi
I
282
LARCENr.
object of this clau.de was simply to make those cases
larceny, where the general property in the thing deliv-
ered was never intended to be parted with at all, but
only the posaeaaion ; where in fact the owner delivered
the property to another under such circumstances as
to deprive himself of the poaaeadon for some time,
whether certain or uncertain, and whether longer or
shorter, at the expiration or determination of which time
the owner was to have restored to him the very same
thing that had been so delivered. In order, therefore,
to bring a case within this clause, in addition to the
fraudulent disposal of the property, it must be proved,
1st. That there was such a delivery of the property as
to divest the owner of the poaaeadon, and vest it in the
prisoner for some time. 2nd. That at the expiration or
determination of that time, the identical same pro])erty
was to be restored to the owner. Proof of these facts
will be all that is necessary under this clause. The
decision in R. v. Haaaall was clearly right, and will apply
to the present clause."
The prisoner was a married woman living with her
husband. They took in lodgers, but she exclusively had
to deal with them. The prosecutor, who lodged with
them, delivered to the prisoner, the woman, a box con-
taining money to be taken care of. The prisoner stole
the money, her husband being entirely innocent in the
transaction. HeU, that she was either guilty of simple
larceny, or that she was a bailee, and guilty of larceny
as a bailee, and by PoUock, C.B., and Martin, B., that a
married woman may possibly be convicted of larceny as
a bailee.— i2. v. Rohson, L. & G. 93. The authority of R.
V. Denmour, 8 Cox, 440, in which it was held that a
married woman could not be a bailee, must be regarded
as shaken.— -Reporter's Twte, L. <k C. 97.
Iff'
III
LARCENY.
283
The proviso, says Greaves, was introduced to prevent
the clause applying to the cases of persons employed in
the silk, woollen, and other manufactures, who dispose
of goods entrusted to them, and are liable to be sum-
manly convicted under sundry statutes.
Who is a bailee What constitutes a bailment .
'• Bailment " (French. baUler), a compendious expression
to signify a contract resulting from deliveiy. Sir William
Jones has defined bailment to be " a delivery of goods on
a condition, express or impHed, that they shall be restored
by the bailee to the bailor, or according to his directions
as soon as the purpose for which they are bailed shaU be
answered." He has again in the closing summary of his
essay defined it in language somewhat different, as "a
delivery of goods in trust, on a contract express or implied,
that the trust shall be duly exercised and the goods
redelivered, as soon as the time or use for which they were
bailed shall have elapsed or be performed." Each of
these definitions seems redundant and inaccurate, if it be
the proper office of a definition to include these things
only which belong to the genus or class. Both of these
definitions suppose that the goods are to be restored or
re-dehvered. But in a bailment for sale, as in the case
of a consignment to a factor, no re-delivery is contem-
plated between the parties. In some cases, no use is con-
templated by the bailee, in others it is of the essence of
the contract; in some cases time is material to terminate
the contract; in others, time is necessary to give a new
accessorial right. Mr. Justice Blackstone has defined a
bailment to be "a delivery of goods in trust upon a con-
tract expressed or implied, that the trust shall be faith-
fully executed on the part of the bailee." And in another
pace as a "delivery of goods to another person for a
i,h;
I i<
I I >
284
LAROBKT.
^particular use." It may perhaps be doubted, whether,
although generally true, a faithful execution, if by faith-
ful be meant a conscientious diligence or faithfulness,
adequate to a due execution, or a ^ .ticular use, if by use
be meant an actual right of user by the bailee, constituteis
an essential or proper ingredient in all cases of bailment.
Mr. Chancellor Kent, in his commentaries, has blended,
in some measure, the definitions of Jones and Blackstone.
Without professing to enter into a minute criticism, it
toay be said that a bailment is a delivery of a thing in
trust for some special object or purpose, and upon a con-
ti'act express or implied to conform to the object or pur-
pose of the trust. In the celebrated case of Gogga v.
Bernard, Lord Raym. 909, 1 Smith's L. C. 177, Ix)rd
Holt divided bailments thus :
1. Depoaitum, or a naked bailment of goods, to be kept
for the use of the bailor.
2. Cormnodaiwtn, where goods or chattels that are use-
ful are lent to the bailee graiia, to be used by him.
3. Locato rei, where goods are lent to the bailee to be
used by him for hire.
4. Vadiumi, pawn or pledge.
6. Locatio operia faciendi, where goods are delivered
to be carried, or something is to be done about them, for a
reward to be paid to the bailee,
6. Mandatum, a delivery of goods to somebody, who
is to carry them, or do something about them gratia.
— Wharton, law lexicon. See also R. v. Oxenham, 13
Cox, 349.
A carrier who receives money to procure goods obtains
and duly delivers the goods, but fraudulently retains
the money, is within this section. — R. v. Wella, 1 F.
& F. 109.
LARCENY,
28S:
So one who takes a watch from the pocket of a tipsy man.
with his consent is a baUee of the watch._iJ. v. Reeves, 5!
The bailment intended is a deposit of something to he-
specifically returned, and therefore one who receives money
with no obligation to return the identical coins received is
not a bailee within the section.-i2. v. HassaU, L. & C.
58; R.y. Qarratt, 2F.dF.U; M, y.Hoare, I F. & F
047. See R. v. de Banh, 15 Coo}, 450.
The prosecutor gave the prisoner money to buy half a
ton of coab for him. He bought the coals and took a
receipt in his own name, and used his own horse and cart
to fetch them, but on the way home he appropriated a
portion of the coals to his own use, and afterwards pre-,
tended to the prosecutor that he had delivered to him the
full quantity : Held, that even if it was necessary to show
a specific appropriation of the coals to the prosecutor, there
was sufficient evidence of such appropriation, and that the
prisoner was rightly convicted of larceny as a bailee—iJ.
v. Bunkall, L.S 0.371-, 9 Cox, 419.
A carrier employed by the prosecutor to deliver in his
the prisoner's, 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 appro-
priated the proceeds, is properly convicted of larceny as a
bailee.— i2. v. Baviea, 10 Cox, 239.
A, who was a trustee of a friendly society, was appointed
by a resolution of the society to receive money from the
treasurer and carry it to the bank. He received the money
from the treasurer'., clerk, but instead of taking it to the
bank he applied it to hi? own purposes. He was indicted
for stealing, as bailee of the money of the treasurer, and
also for a common law larceny. The 18-19 V., c. 63, s.
i;
286
LARCENY.
18, vests the property of friendly societies in the trustees,
and directs that in all indictments the property shall be
laid in their names: Held, that A. could not be convicted
either as a bailee or of a common law larceny.— iJ. v.
Loose, Bell, G. C. 259 ; 8 Cox, 302.
On an indictment for larceny as a bailee, it appeared
that the prisoner borrowed a coat from the prosecutor,
with whom he lodged, for a day, and returned it. Three
days afterwards he took it without the prosecutor's per-
mission, and was seen wearing it by him, and he again
gave him permission to wear it for the day. Some few
days afterwards, he left the town, and was found wearing
the coat on board a ship bound for Australia. Martin, B.,
stopped the case, stating that in his opinion there was no
evidence of a conversion. There are many instances of
conversion sufficient to maintain an action of trover, which
would not be sufficient to support a conviction under this
statute ; the determination of the bailment must be some-
thing analogous to larceny, and some act must be done
inconsistent with the purposes of the bailment. As for
instance, in the case of a baQment of an article of silver for
use, melting it would be evidence of conversion. So when
money or a negotiable security is bailed to a person for safe
keeping, if he spend the money or convert the security, he
is guilty of a conversion within the statute. The prose-
cution ought to find some definite time at which the offence
was committed. The taking the coat on board ship was
subsequent to the prisoner's going on board himself.— i2.
V. Jackson, 9 Cox, 505.
Greaves, on this case, says : If the case is correctly
reported it deserves reconsideration. The words are, " take
(yr convert the same to his own use." The clause therefore
does not require a conversion, but was studiously framed
LARCENY.
287
to avoid the necessity of proving one. The evidence was
sufficient to go to the jury that the prisoner took the coat
on board for his own use with intent permanently to deprive
the owner of it; and such a case seems clearly within the
statute. Besides the case ought to have been left to the
jury to say whether he did not return the coat to the pros-
ecutor s house after the end of the last bailment for a day
If so the case was simply one of larceny.— 3 Ru88 666
M. was the owner of a wrecked ship. A. contracted with
M to save and recover the wrecked property. A. made a
sub-contmct with R. C. to act as diver and carry on the
works of salvage ; all goods saved to be forwarded to A
and the remuneration to be a percentage on the goods
saved, but R. C always to i^tain £150 as a guamntee
In his absence, R. C. put the defendant, his son. in charge*
of the wreck. The defendant corresponded with A. as to
the sale of the salvage, and he was addressed by A as a
responsible party under the contract. A. deposed, however
that he had always considered R. C. as the partv liable on
the contract. The defendant sold and appropriated part of
the salvage. The jury found that he did so animo furandi
but no question was asked them as to whether he was a
bailee of A. Held, dissentientibus, Fitzgerald and George
J. J., that there was sufficient evidence to show tJiat the
defendant was a bailee so as to make him liable for larceny
under the 4th section of the Larceny Act; also that the
property was rightly laid in M.-i2. v. Clegg, 11 Cox, 212
A. delivered two brooches to the prisoner to seU for him
at ^200 for one. and £115 for the other, and the prisoner
was to have them for a week for that purpose ; but two or
three days grace might be allowed. After ten days had
elapsed, the prisoner sold them with other jeweUery for
£250, but arranged with the vendee that he might redeem
§
288
LARC5ENY.
the brooches for jeUO before September. Hdd, that this
amounted to a fraudulent conversion of the brooches to his
own use by a bailee, within sec. 4 of the Larceny Act.-
JB. V. Henderson, 11 Cox, 593.
A traveller was entrusted with pieces of silk, about 95
yards each, to carry about with him for sale to such cus-
tomers as he might procure. It was his duty to send by
the next post after sale the names and adresses of the cus-
tomers to whom any might have been sold, and the nam-
bers. quaUties and prices of the silk sold. All goods not
80 accounted for remained in his hands, and were counted
by his employers as stock. At the end of each half year
it was his duty to send in an account for the enUre six
months, and to return the unsold silk. He was paid by a
commission. Within six months after four pieces of silk
had been delivered to him, the prisoner rendered an account
of the same, and entered them as sold to two persons,
with instructions to his employers to send invoices to the
alleged customers. It turned out that this was false, and
that he had appropriated the silk to his own use : held
on a case reserved, by the Court of Criminal Appeal
unanimously, that the prisoner was rightly convicted of
larceny as a bailee.-i2. v. Richmond, 12 Cox. 495.
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 they
belonged to H. Piisoner left them on his marshes for a
day or two, and then sent them a long distance away on
his own property to be kept for him. He then told S. that
he had lost them, and denied aU knowledge of them. The
jury found: 1. That at the time the prisoner found the
heifers, he had reasonable expectation that the owner could
LARCENY.
289
be found and that he did not believe that they had bePn
abandoned by the owner 9 TKaf . "^ ^"
then, he did Lt inZd o steal theiT J th^ tf '"'"'^
tion to steal came on him subsequently 31^^^^^^^
oner, when he sent them awav did In f I ' ^"'■
ti7i-fk *u • . ^-way, aia so for the purnose and
with the intention of depriving the owner of tlfpT ^
appropriating them to his own use • ffTdZf
oflarcenv nr «f i "*y" "se . -Oc^cf, tliat a convict bu
under the'ah ' "' ''^^''' ^^"^^ °«^ ^^ ^"stained
under the above circumstances.-/^, v. Matthews, 12 Cox
489 ; M. V. Cosser, 13 Cox, 187. '
The prisoner was frequently emnlovprl h^r t\.^
to fetch coals from C BofZ ^T"^ ^^ ^^^ prosecutor
tor made un tnT each journey, the prosecu-
navTr.. ^ ! . P"''°'' ^^■*' ^"^ «f ^hich he was to
pay fur the coals, keep 23 shillings for himself andlffh
W obtamed it, with the money reoei^Jtrl^XlZ'T
tor; and the proaecutor did not know but that ITdT-
but p,.v,ded he was supplied with the eoal, and not
required U, pay more than the proper price for if >
~ria. to the prosecutor in wl^ .na": Tr t e ^ ilo^
ance of £3 m hand, and the prosecutor gave him £n t.
make up £24 for next journey. The prisL did nft t Ln
HmZ^^ "" '-""""^tly. appropriated the monj
Mi that the conv.ct.oaof the prisonerfor larceny of th^
m as a bailee was right._A v. Aden. 12 cL si
S« A v. To,Mn.u, 14 6W, 603; M. .'. Wynni, ct.
Boot and shoe manufacturers gave out to their workmen
eather and materials to be worked up, which were ent™ d
m the men's books and charged to their debit. The men
xm
i
290
LARCENY.
might either take them to their own homes to ^ork up, or
work them up upon the prosecutor's premises; but m the
latter case they paid for the seats provided for them. When
the work was done they received a receipt for the dehvery
of the leather and materials and payment of the work. If
the leather and materials were not re-delivered, they were
required to be paid for. The prisoner Daynes was in the
prcecutor's employ, and received materials for twelve
pairs of boots; he did some work upon them, but mstead
of veturning them sold them to the prisoner Warner. These
m Aterials were entered in the prosecutor's books to Daynes'
d(ibit, but omitted by mistake to be entered in Daynes'
book : Held, that Daynes could not be convicted of larceny
as a bailee, under the 3rd section of the Larceny Act, as
the offence of which he had been guilty was punishable
summarily under 13 Geo. 2, c. S.-R. v. Daynes, 12 Cox,
514.
An indictment for larceny by a bailee may be in the gen-
eral form of indictment for larceny at common law ; and it
is not necessary to allege that the defendant is a bailee.—
3Btiw,305. ^ .-, r
The prisoner was indicted for larceny as a bailee of a
sum of money. The complainant produced a receipt taken
at the time of the deposit in the hands of the prisoner by
which it appeared that the deposit was " en attendant le
paiement qu'il pourrait faire d'une m6me somme a K. A.
Benoit." Held, that this receipt implied that the prisoner
was to pay a similar sum, and not actually the same pieces
of money. That parol testimony could not be admitted to
vary the nature of the transaction.— E. v. BeHhwume,
10 L. i^. 365.
5 Every one who commits simple larceny or any felony hereby
made punishat.'e in the same manner as simple larceny is guilty of a
Ii4RCIINr.
291
«• 21, .. 7 24.25 v., .. 96. , 7 /™ ^"" »"l'"'»»'»e»t~32-a3 r..
As tr form of indictment and propfldure in such cases
see Procedure Act, sees 139 and 2P7 ., '
H6 of the I..peri;i La„,^y I^^ '"'' ^^'P^Omg to s.
STEALING CATTLE.
clt: """' '°'"- ^' '■"' ""^ ■'■"'T^tatioa of the word
/« &(m«„«._Tbe Jurors for Our Lady the Queen upon
their oath present, that J. S., on ... ,t T
ho«e of the good, and chattels of J. N.' felo'ni;™!; did
steal, talce and lead away j againat the form AfZ
tndu^trnent be for eUalinya bull or sheep, etc.. my ■■ drive
a^r ^n.teaaof •< Uad a^ay." Tke'^Mi^Jnt ZZ
^^; other^^e tke defendant ean be punished <«>Z
Arditold, 349. '
If a person go to an inn, and direct the ostler to bring
out h,s horse, and point out the prosecutor's horse as his
and the ostler leads out the horse for the prisoner S
mount, but. before the prisoner gets on the horse's back
the owner of the horse comes up and seizes him. th^
cTp °l^°''°-''^'''S i» oomplete-B. v. FUn^n. 2
8M
LARCENY.
!
h - '
The prisoners enter another's stable at night, and take
out hia 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 that the prisoners took
the horses merely with intent to ride and afterwards leave
them, and not to return or make any further use of them,
held, trespass and not larceny.—i2. V, PhilippSy 2 East,
P. a 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. — R. v. Harvey, 1
Leach, 467.
If a person stealing other property take a hrirse, not
with intent to steal it, but only to get off more conveniently
with the other property, such taking of the horse is not a
felony.— i2. v. Crump, 1 G. & 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. — R. v. Pear, 1 Leach,
212 ; R. V. Cliarlewood, 1 Leach, 409. It is larceny (at
common law) for a 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. — R. v. Stock, 1
Moo. C. C. 87. Where the defendant removed sheep from
the fold, into the open field, killed them, and took away the
skins merely, the judges held that removing the sheep from
the fold was a sufficient driving away to constitute larceny.
^R. v. Rawlins, 2 East, P. C. 617.
But it has been questioned, whether the merely re-
moving a live sheep for the purpose of killing it, with
intent to steal part of the carcase, was an asportation of
the live sheep, so as to constitute larceny of it. — R. v.
LAROEUT.
293
Any variance between the indictment and the proof ia
Sect. J38 Iroceduro Act.-A y. ff„^(,fe_ jg c„^ g^g
"»"o.':i::.7i:''„r:;:''i:«''':!!".r -r "''" """■' ^ "^"
of J. N felon,on3ly and wilfully did kill, with intent
elomously to steal, take and ca-ry away part f the ca.^
tlT.7: '"*"" '"' "' "° "" '"^"P- "^^'-'^^
Catting off part of a sheep, in thia instance the W,
wh le u .a al.ve, with intent to steal it, will support an
.nd,ctn,ent for kiUiug with intent to steal, if theTuttin"
off must occasion the sheep's death.-JJ. v. Clay, s_ j, ^_
So on the trial of an indictment for kiUing a ewe with
.ntent to steal the caroaso, it appeared that" the pr slnlr
wounded the ewe by cutting her throat, and wL thea
.nterrupted by the p^secutor, and the ewe died of tha
wounds two days after. It was found by the jury who
conv.cted the pnsoner that he intended to steal the irca.e
of the ewe. The fifteen judges held the conviction right
-R. V. Sutton, a a & P. 291. It is immaterial whef^r
the mtent was to steal the whole or part only of the carcasl
-iJ. V. WMmme, 1 Moo. 0. C. 187. '*'"»e.
J epi in a state of confiaement or for aoy domestio
294
LABCENT.
purpose, orfw any lawful purpose of profit or advantage not being
the subject of larceny at common law, or wilfully kills any such dog,
bird, beast or animal, with intent to steal the same, or any part
thereof, shall, on summary conviction, be liable to a penalty not
exceeding twenty dollar over and above the value of the dog, bird,
beast or other animal, or to one month's imprisonment with hard
labor ;
2. Every one who, having been convicted of any such oflFence either
against this or any other Act or Law, afterwards commits any offence
in this section mentioned, is liable to three months' imprisonment
with hard labor.-32-33 r.,c. 21, «. 12. 24-25 F., c 96, ss. 18-21,
Imp.
The words in Italics are not in the English Act.
10. Every one who 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 summary conviction, be liable to
a penalty not exceeding ten dollars over and above the value of the
bird.— 32-33 v., c. 21, s. 13. 24-25 F, c. 9ri, «. 23, Imp.
This clause does not extend to kiUing pigeons under a
claim of right.— Taylor v. Newman, 9 Cox, 314.
11. Every one who steals any oysters or oyster brood from any
oyster bed, laying or fishery, being the property of any other person,
and sufficiently marked out or known as such, is guilty of felony,
and liable to be punished as in the case of simple larceny ;
2. Every one who unlawfully and wilfully uses any dredge or net
instrument or engine whatsoever, within the limits of any oyster bed,
laying or fishery, being the property of any other person, and suffi-
ciently marked out or known as such, for the purpose of takmg oysters
or oyster brood, although none are actually taken, or unlawfully and
wilfully with any net, instrument or engine,drag8 upon the ground of
any such fishery, is guilty of a misdemeanor, and liable to three
months' imprisonment;
3. Nothing in this section contained shall prevent any person from
fishing for or catching any floating fish within the limits of any oyster
fishery wi»h any net, instrument or engine adapted for taking floatmg
fish only .-32-33 F., c. 21, a. U,part. 24-26 F, c. 96, s. 26, Imp.
Indictment for stealing oysters or oyster brood.—
from a certain oyster-bed called the pro-
LARCENY.
295
Perty of J. N., and sufficiently marked out and known
as the property of the said J. N.. o.ie thousand oysters
feloniously did steal, take and carry away against the
form
Indictment for using a dredge in the oyster fiaUry of
another.— within the limits of a certain oyster-bed
*^"^^ ^^epropertyof J. N., and sufficiently marked
out and known as the property of the said J. N., unlaw-
fully and wilfuUy did use a certain dredge for the purpose
of then and there taking oysters, against the form ...
— Arckhold, 393.
In support of an indictment for stealing oysters in a
tidal river, it is sufficient to prove ownership by oral
evidence as, for instance, that the prosecutor and his
father for 45 years had exercised the exclusive right of
oyster fishing in the lociia in quo, and that in 1846 an
action had been brought to try the right, and the verdict
given in favor of the prosecutor.-i2. v. Downing, 11
Cox, 580. ^
See sec. 123 of the Procedure Act for form of indict-
ment.
STEALING WRITTEN INSTRUMENTS.
12. Every one who steals or. for any fraudulent purpose, destroys,
cance s, obliterates or conceals the whole or any part of any valuable
secur.ty, other than a docun.ent of title to lands, is guilty of felony!
of the same nature, and in the same degree, and punishable in the
eame manner as .f he had stolen any chattel, of like value as the
share, mterest or deposit to which the security so stolen relate., or
as the money due on the security so stolen or secured thereby and
remainrng unsatisfied, or as the value of the goods or other valuable
th.ng represented mentioned or referred to in or by the security.-
32-3.J v., c. 21, ,. 15. 24-25 V., c. 96, s. 27, Imp.
See R. V. Scott. 21 L. C. J. 225, reversed by Supreme
Court, as follows :
,'■;•!
■fit
I
m iin
296
LARCENY.
y, was indicted, tried and convicted for stealing a note
for the payment and value of $258.33, the property of
A., McC. and another. The evidence showed that the
promissory note in question was drawn by A., McC. and
C. E., and made payable to £.'s order. The said note
was given by mistake to S., it being supposed that the
sum of $258.33 was due to him by the drawers, instead
of a less sum of $145.00. The mistake being imme-
diately discovered, S. gave back the note to the di-awers,
unstamped and unindorsed, in exchange for another note
of $175.00. An opportunity occurring, S. afterwards, on
the same day, stole the note ; he caused it to be stamped,
indorsed it, and tried to collect it.
Held, that S. was not guilty of larceny of " a note "
or of a " valuable security," within the meaning of the
statute, and that the offence for which he was guilty was
not correctly described in the indictment. — Scott v. The
Queen, 2 S. C. R. 349.
As to the interpretation of the words " valuable secu-
rity," see, ante, sect. 2.
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 sura of ten pounds secured
and payable by and upon the said bill of exchange
being then due and unsatisfied to the said J. N., felo-
niously did steal, take and carry away, against the form
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
LABCENY.
297
an indictment for stealing the cheque and the proceeds
of It It was holden to be no larceny, although the jury
found that before he received the cheque, the defendant
had formed the mtentiou 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 prosecutor's own
cheque and of no value in his hands, it could not be called
his goods and chattels, nor of the proceeds of the cheque
because the prosecutor never had possession of them'
except by the hands of the defendant.~iJ. v Walsh
7f 7' ?^^i ^""^ ""^"'^ ^^^ prosecutors gave to the'
defendant, who was occasionally employed 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 of the cheque.
ac, 33"^'''^^^'' ^ ^""- ^- ^- ^33 J M. V. Heath, 2 Moo.
With respect to what instrument or security is within
tne Act, the following decisions are cited :
At a conference of the judges in Easter term, 1781
Nares, J., mentioned that a person was convicted before
!r/rhT /.'.'''^"^'^'^"^ '^' P^'«^" «^ --othera
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 oider 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, c. 25, which made the stealing promis-
scry notes felony, with the same consequence as goods of
the like purported value ; that this was a promissory note
rl:rP:V::3!^^"^ ^^^^^^^^ ™ i-aterial.-L..;
■lii
m
m
1 1
I
298
LARCENY.
So an indictment for stealing a bill of exchange in Lon-
don was sustained by proof that, when found in the pris-
oner's possession 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. — Avstin 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 pris-
oner, who was present daring 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 to others, this was never in his
possession, his signature having been procured by duress
to a paper which during the whole continuing transac-
tion was in possession of the prisoner. — Phipoe's Case, 2
Leach, 673. See now sec. 5, c. 173, post.
And where, in consequence of an advertisement, A.
applied to B. to raise money for him, who promised to
procure jESOOO, 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, Holland and Bosanquet
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. v. Minter Hart,
6 a <ftP. 106.
This offence would now be punishable under sect. 78,
post. R. V. Danger, Dears. & B. 307, would also now
fall under the said section.
LARCENY.
299
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— i2. v. Yates, 1 Moo. C.
C. 170. '
The case of R. v. Clarke, R. & R. 182, where the
prisoner was indicted for stealing re-issuable notes after
payment and before re-issuing, does not decide whether
such notes were considered as valuable within the statute,
for the judges held the conviction right on the counts tor
the value of the stamps and paper, not referring to the
objections as to the value of the note. But in R. v
Ransom, 2 ZeocA, 1090, which was against a clerk in the
post-office for secreting a letter containing country bank-
notes paid in London and not re-issued, it was contended
that they were not available within the Act, but the
majority of the judges 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 case of R. v. Vyse, 1
Moo. C. a 218, it was decided that re-issuable notes, if they
cannot properly be called valuable securities whilst in the
hands of the maker, may be called goods and chattels.
Wherever, therefore, the instrument would, 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 instru-
ment 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 repre-
sent. The property consists in the power of disposing ; if
therefore the power of disposal is taken away, the posses-
f "ifii
M?
■wm
800
LARCENY,
sion and property are gone. The disposal of such property
ia effected by means of those instruments ; every such act
of disposal, therefore, it is apprehended, must be consi-
dered as an exercise of property, and the making of such a
note, under any circumstances, an act of possession. If,
therefore, such a promissory note so obtained would be
accounted of value, and to have been in the possession
of the prosecutor, the offence would now, beyond doubt,
come within the section.— 3 Burn, 237.
In R. V. West, Dears. <& B. 109, the case of R. v.
Rarmon 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 one
branch of the bank, and were in course of transmission to
another branch, in order to be re-issued ; but it was held
that, upon these facts, A. was rightly convicted.
The following instruments also have been held valuable
securities : a post office money order, R, v. Oilchriat, 2
Moo. C. C. 233 ; a cheque on a banker, R. v. Hea^h, 2
Moo. C. C. 33 ; a pawnbroker's certificate, R. v. Morrison,
Bell, C. C. 158 ; and a scrip certificate, of a foreign railway
company, R. v. Smith, Dears. 56.
It is to be observed that valuable security includes also
document of title to goods and document of title to lands,
see, ante, sect. 2, but that documents of title to lands are
especially exeu pted in this section. It is, therefore, mate-
rial, in drawing an indictment under this section, to show
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. — R. v. Lowrie,
I. R, 1 a a R. 61.
Bank notes are properly described as " money," although,
at the time of the larceny, they were not in circulation, but
LARCENY.
301
of a choae in action / and '& ^^ "''''^ '"''»'=»
convicted on acount'cCgiglL'Xr.""" ""' "^
JJ<y. 17. ^ ^ ^""^^ "• ■O*^'*, 2i i\'. s.
^A..,o™onnai.„en.. S« .e. HO 'orCl.
Indictment « n f • j
1^., being evidenc;-;rt>;; ^"thttid*/ T^ "' '^
real estate called ,««»,• u f ' ''^- ^"^ ^ ^^^'tain
a ea.. take and carry a.ay. against th^fol'''"'"™^ f
:
I
,1 li
I
302
LARCENY.
an indictment under this section, and the two following, for
destroying, etc., for a fraudulent purpose the purpose should
be staled.— R. v. Morris, 9 C. <S; P. 89.
A mortgage deed cannot be described as goods and chat-
tels.— i2. V. Powell, 2 Den. 403. See sub-sec. 3 of next
section.
14. Every one who, either during the life of the testator or after
his death, steals or, for any fraudulent purpose, destroys, cancels,
obliterates or conceals the whole or any part of any will, codicil or
other testamentary instrument, whether the same relates to real or
personal p'-operly, or to both, is guilty of felony, and liable to impris-
onment for life;
2. Nothing in this or the next preceding section mentioned, and no
proceeding, conviction or judgment had or taken thereupon, shall
prevent, lessen or impeach any remedy at law or in equity, which
any person aggrieved by any such offence might or would have had if
this Act had not been passed ;
3. No conviction of any such offender shall be received in evidence
in any action or suit against him ; and no person shall be liable to be
convicted of any of the felonies in this and the next preceding section
mentioned by any evidence whatever, in respect of any act done by
him, if he ha«, at any time previously to his being charged with such
offence, first disclosed such act, on oath, in consequence of any com-
pulsory process of any court, in any action, suit or proceeding bond
fide instituted by any person aggrieved, or if he has first disclosed the
same in any compulsory examination or deposition before any court
upon the hearing of any matter in bankruptcy or insolvency.— 32-33
v., c. 21, s. n,purt. 24-25 V., c 96, «. 29, Imp.
Indictment. — a certain will and testamentary
instrument of one J. N. feloniously did steal, tak': and
carry away, against the form Archbold. — (Add
counts varying description of the will, etc.)
The cases of iJ. v. Skeen, Bell, C. G. 97, and R. v. Stra-
han, 7 Cox, 85, are not now \&\f.~ Jreaves, Cons. Acts, 126.
16. Every one who steals or, for any fraudulent purpose, takes
from its place of deposit, for the time being, or from any person
having the custody thereof, or unlawfully and maliciously cancels.
lAECENT.
303
obliterates, injtiree or destroys the whole or anv naw «<• .
oTu^lfr Z f"^ ^ *"-V court of juHtice, or relating to any cause
or matter, begun, depending or terminated in any such con rr!!
any original document in anywise relatinrtn th-K • ' ' °^
office oren.pioyment under HeTL7stv " nd J """ °^ *"^
any office ap^ftaining to Tny courtTf ustl. '^ "" '"""'"'"^ ''^
^The word, ••c<mrt of justice" are not in the Englfah
Indictment fir stealing a record.- a certain
Judg^ent-roU of the Co«rt of Our Lady the Queen, bete
the Queen herself, feloniously did steal, take and earr^
away, against '
Indictment for taUng a record fr,ym. it, place ofdepodl
mr'^'' "'''»'» J>"lKn>ent-roU of the court of our said
My the Queen, before the Queen herself, from ite pW
deposit for the time being, to wit, from the treasury of the
said court, feloniously and for a fraudulent purpose did
take, against (If for obliterating, etc., my, felo.
monely. unlan,fuUy and malicionely did obliterl.cic }
— ^rciioW, 354, 355. ■'
Stealing roIU of parchment will be larceny at com, .n
law. though they be the recorfs of a court of justice, nnlesa
they concern the realty.-ij. y. Walker. 1 Jlfoo. a a 165
but It IS not so if they concern the realty.-ij. v. Westbeer
X iieacn, 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.-i2. v. Westheer, loc. cit
Upon an indictment for taking a reconi from its place
of deposit, with a fraudulent purpose, the mere toking is
804
LARCENY.
evidence from which fraud may fairly be presumed, unless
it be satisfactorily explained. — Archbold, 355.
The priaoner was indicted under this section of thn Lar-
ceny Act. The first count charged the prisoner with steal-
ing a certain pvocesa - ,v court of record, to wit, a certain
warrant of execitiou '=-"ihhi out of the county court of
Berkshire, in an action wherein one Arthur was plaintiff
and the prisoner defendant. The second count stated that
at the time of committing the offence hereinafter mentioned,
one Brooker had the lawful custody of a certain process of
a court of record, to wit, a wai taut oi execution out of the
county court that defendant 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 Brooker the said warrant, he,
Brooker, having then the lawful custody of it. Brooker was
the bailiff who had seized the defendant's goods, under the
said writ of execution. The prisoner, a day or two after-
wards, forcibly took the warrant out of the bailiff's hand,
and kept it. He then ordered him away, as having no
more authority, and, on his refusal to go, forcibly turned
him out. The prisoner was found guilty, and the convic-
tion affirmed upon a case reserved. Cockburn, C. J., said :
" I think that the first count of the indictment which charges
larceny will not hold. There was no taking lv4iri causd,
but for the purpose of pieventing the bailiff" from having
lawful possession. Neither was the taking animo furandi.
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 felouious
taking of the stick. There is, however, a second count in
the indictment which charges in effect that the prisoner
LARCENY.
305
^arraut forcibly ft' I the WM "T'^- "" '"'"'"•o
execution creditor and w«« oi ^"^ ^^amst the
within th« enactment and tU^^.,''*'" ?•"!>»»«
affl^ed..,, . ^4-''3^- ';-nv:otio„ .„,t he
V. Maeon. 22 K a C / 246 ' "■ '' '" "*-'«•
An indfct j^^^^.y;^^_^-
^1, s. lo, as feloniously stpalm^ • i. i>^-dd V q^
police court, is suffidL at ^ ^^mformation taken in a
t^. ^. a P. 246 ' ^' verd,ct.-i2. y. 3fa.on. 22
of oS;:;^:r^r ::^-.- --^^ «--. . an.
other vessel. i« g.,iu/of fl„y"a„7liabeT '' '" *"^ ^*^«"-'- «'
tern, less than two yeare.-32-33 K,c. 2?, i 19 '™P"'°"'"^"* <■<>' »».
This clause is not in the laaperill' Statute
or any lead, iron, copper, urass or n7 "^^"''•^'"«^'»'»'«'>ever.
fixture, whether made of neteT or o ../"''*'' "'' *"^ "^»«'' or
fvely flxe,l i„ or to any TuhI^' .tLL" "*'' °'" '^^ '^o^'^' -«P«°-
"'etal fixed i„ any land, beinTDHil'^^ or anything made of
dvvelli„g.hou.e. gardener area oTn^n?'"^'"^ '"^^^^ 'o any
Plaoe .iodicated to public use oi omaVent ''"*'"' °' ^'"*^'' «' - -ny
gu.lty Of felony, and liable t^ CuSl'^ '" ""{ ^"'■'*' ^--^-^^.i-
-ceny._32.33 ., . ,, ,. ,,^ ^^^a^;-^ ^^.^^
At common law 'ircAnv «^.,ij , '
things attached to tLSfoId °°' "" '""""'"«'^ »^
A. topnnishment foreimpie larceny, see, ante. sect. 5
V
30G
LARCENY.
Thin enactment extends the ofTence much further than
the prior acts did, as it includes all utensils and fixtures of
whatever materials made, either fixed to building or in
land, or in a square or street. A church, and indeed all
buildings are within the Act, and an indictment for
stealing lead fixed to a certain building without further
description wiU suffice.— i2. v. Parker, 1 East, P. C. 592 ;
JR. V. Norris, R. <S; R., 69. 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— i2. v.
Worrald, 7 C. <& P. 516. So also where the lead stolen
formed the gutters of two sheds built of brick, timber and
tiles upon a wharf fixed to the soil, it was held that this
was a building within the Act.— 12. v. Rice, Veil, C. C. 87.
But a plank used as a seat, and fixed on a wall with pillars,
but with no roof, was held not to be a building,— i2. v.
Reece, 2 Ruse. 254. Where a man, having given a
false representation of himself, got into possession of a
house, under a treaty for a lease of it, and then stripped it
of the lead, the jury being of opinion that he obtained
possession of the house with intent to steal the lead,
found him guilty, and he afterwards had judgment.— i2,
V. Munday, 2 LeacHi, 850.
A prisoner, however, cannot, upon an indictment for
this statutable felony, be convicted of simple larceny.—
R. V. Qooch, 8 C. <fc P. 293.
The prisoners were found guilty of having stolen a
copper sun-dial fixed upon a wooden post in a churchyard.
Conviction held right.— i2. v. Jones, Bears. & B. 655.
The ownership of the building from which the fixture is
stolen must be correctly laid in the indictment — 2 Rma.
255.
Indictment for stealing metal fixed in land being pri-
land whioh w^, L„ .tiv ;• "« ""^ '" " ""'»■"
of the said J N ' ul "Tr'^' ", "''' '" " «»"'^'»
ground adjoining or Jonl „1r ^'"^ ^^?'>*;:^ "■• »^*""e. or in any
value Of the arlide o aS« «tn,7 ^«'^''"'«-hou«e (in ca.e the
done, exceeds the «u,no flveJo ,ar^ "' . ""'""' "' ^''« '■"j"^^'
b« puniHhed as i„ the caL ^f a.^.^tX^ '^ '^'°"^' *"^ "*^'« ^
2. Every one who stealB. or cnta h«>„i
destroys or damage, with intent t^t^l'lTh:,"'' " ^"'"'^'^^
any tree, aaphng orehrub. or any utderw^ re^'tr T ''''' "'
elsewhere than in any of the BitulZ i' "^^"^^^^'^^ly growing
tioned (if the value ofC art co'^^^^ ?'f «^''«" be^^- ".en-
tl.e injury done, exceeds the u „ ;f TwenTvT ".' u ''" *""""' "'"
felony, and liable to be punishJaa JnTh.^ ' ^.""*"^' '' 8'"'^^ ^^
See sect 5 ante, as to punishment for simple larceny
F>rk or garden.-^ v. ffodge., M. ^117 Call:
be the actual ,„jury to the tree or shrub itself, and not tl!
consequential injury resulting from the aei TZ 1
aaded . ma.e up thX^; ttet^ tro'ut-r
w
' ja
308
LAKCENY.
Indictment for stealing trees, etc., in parJcs, etc., of the
value above Jive dollars.— one oak tree of the value
of eight dollars, the property of J. N., then growing in a
certain park of the said J. N., situate in the said
park, feloniously did steal, t'-ke and carry away, against
— Archhold.
Indictment under second part of the section. —
one ash-tree of the value of thirty dollars, the property of
J. N., then growing in a certain close of the said J. N.,
situate in the said close, feloniously did steal, take
and carry away, against the form
It is not necessary to prove that the close was not a
park or garden, etc.— Archhold^ 362.
19. Every one who steals, or cuts, breaks, roots up or otherwise
destroys or damages, with intent to steal, the whole or any part of
any tree, sapling or shrub, or any underwood, wheresoever the same
is respectively growing (the stealing of such article, or the injwry
done, being to the amount of twenty-five cents at the least), shall, on
summary conviction, be liable to a penalty not exceetling twenty-five
dollars over and above the value of the article stolen or the amount
of the injury done ;
2. Every one who, having been convicted of any such offence,
either against this or any other act or law, afterwards commits any
of the said offences in this section before mentioned, shall, on sum-
mary conviction, be liable to three months' imprisonment with hard
labor;
3. Every ono who, having been convicted of any such offence
(whether both or either of such convictions have taken place before
or after the passing of thio Act), afterwards commits any of the
offences in this section before mentioned, is guilty of felony, and liable
to be punished as in the case of simple larceny — 32-33 V., c 21, a. 22.
24-25 v., c. 96, s. 33, Imp.
Indictment. —The Jurors for Our Lady the Queen
upon their oath present, that J. S., on one oak
sapling of the value of forty cents, the property of J. N.,
then growing in certain land situate unlawfully did
LABCENY.
309
st^, tete and «irry away, against the form of the statute
.n such case made and provided; and the jurors afotsa^
upon the,r oath aforesaid, do say, that heretofore, and befot'
^e comm.tt.„g „f the offence herein before m;ntionet:
wit, on at the said J. S. was duly convicted
Wore J P., one of Her said Majesty's justices of her
peace for the sa.ddi.trict of for that he. the said J
of the ■;;:;■■;■ ^"^ '"f '•^™' ^o^^^^; against the form
said 1 S r, ■; "* "'? """^ °°'' ?«'"<'««'; »<• 'he
sa d J S. was thereupon then and there adjudged for his
sa,d offence to forfeit and pay the sum of twenty dol a.
over and above the value of the said tree so stole" as
V W 'th "; '"^"^ ^'"» "' f-'y -"'. being th
value of the sa,d tree, and also to pay the further sum of
" :■/'" «•'" ; »""» *» default of immediate payment of
the sa,d sums, to be imprisoned in the common g»l of he
^.dd.str,ct„f fo, the space of Lless h
, no?r ,f ^ "^'"''^^- ^"<' «« >••"« "foresaid.
Indhefr "''"'"' •'"'"'"^"^^y- "-at heretofore
and before the comrartting of the offence first hereinbefore
menfoned to wit, on at the said J. S wL
dub; convicted before 0. P.. one of Her said Majes^^
justices of the peace for the said district of for
""'"'^ !'''*»(' «'«< the eeco,id conviction, in the
^rne manner as the firet, and proceed thiui. J And so the
said J. S on the day and year first aforesaid, the said oalc
^aphiig of the value of forty cents, the pro,«rty of the said
J. N , then growing in the said land situate felo-
niousiy did steal. f«ke and carry away, against the form of
tl« statute m such case made and provided.-^rcMoM
363; Greaves o„ sect. 116 o/ihe Larceny Act, and .7 of
theCovnAct! Archbold. 959; R. y. Martin. 11 Cox 343
•Ml
'""(
' ■ I I.
i i :
; ' i
; f
310
LARCENY.
il
See sees. 139 and 207 of the Procedure Act as to form
of indictment and proceedings on trials when previous
offences are charged.
20. Every one who receives or purchases any tree or sapling, or
any timber made therefrom, exceeding in value the eum of ten dollars,
knowing the same to have been stolen or unlawfully cut or carried
away, is guilty of a misdemeanor, and liable to the same punishment
as the principal offender, and may be indicted and convicted thereof,
whether the principal offender has or has not been convicted, or is or
is not amenable to justice ;
2. Nothing in this or in either of the two sections next preceding
contained, and no proceeding, conviction or judgment had or taken
thereupon, ehall prevent, lessen or impeach any remedy which any
person aggrieved by any of the said offences would have had if this
Act had not been passed ; nevertheless, the conviction of the offender
shall not be received in evidence in any action or suit against him ;
and no person shall be convicted of either of the offences aforesaid,
by any evidence disclosed by him on oath, in consequence of the
conipuUory process of a court, in any action, suit or proceeding
instituted by any person aggrieved. — 32-33 V., c 21, s. 23.
This clause is not in the English Act.
21. Every one who steals, cuts or breaks or throws down, with
intent to steal, any part of any live or dead fence, or any wooden post,
pale, wire or rail set up or used as a fence, or any stile or gate, or any
part thereof re^^pectively, shall, on summary conviction, be liable to
a penalty not exceeding twenty dollars, over and above the value of
the article or articles so stolen, or the amount of the injury done ;
2. Every one who, having been convicted of any such offence,
either against this or any other Act or law, afterwards commits any
of the said offences in this section mentioned, shall, on summary
conviction, be liable to three months' imprisonment with hard labor.
—32-33 v., c. 21, a. 24. 24-25 V., c. 96, *. 34, Imp.
22. Every one who, having in hia possession, or on his premises
with his knowledge, the whole or any part of any tree, sapling or
shrub, or any underwood, or any part of eny live or dead fence, or
any post, pale, wire, rail, stile or gale, or any part thereof, of the
value of twenty-five cents at the least, is taken or summoned before
a justice of the peace, and does not satisfy such justice that he came
LARCENY.
311
lawfully by the aame, shall, on summary conviction, be liable to
a penalty not exceeding ten dollars, over and above value of the
article so in his possession or on his premises.— 32-33 F /• 21 » 9r
24-25 r„ c. 96, *. 35, Imp. r.,c.ii, a. id.
This sect, does not apply to cordwood.— iJ. v. Caswell
S3 U. a Q. B. 303.
23. Every one who steals or destroys, or damages with intent to
steal, any plant, root, fruit or vegetable production growing in any
garden, orchard, pleasure ground, nursery ground, hot-house, green-
house or conservatory, shall, on summary conviction, be liable to' a
penalty not exceeding twenty dollars, over and above the value of the
article so stolen or the amount of the injury done, or to one month's
imprisonment, with or without hard labor ;
2. Every one who, having been convicted of any such offence,
e.theragamst this or any other Act or law, afterwards commits any
of the offences m this section mentioned, is guilty of felony and liable
to be punished as m the case of simple larcenv — 32-3^ F /. 9i o
26. 24-25 v., c. 96, s. 36, Imp. ' '
The words plant and vegetable production do not apply
to young fruit trees.— i2. v. Hodges, M. S M. 341. Steal-
ing trees would fall under sections 18 and 19.
Indictment-^The Jurors for Our Lady the Queen upon
their oath 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 form 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 hereinbefore
mentioned, to wit, on at the said J. S. was
duly convicted before J. P., one of Her Majesty's justices
of the said district of for that he, the said J. S.,
^^ (<^ in the previous conviction) 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
ii
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812
LARCENY.
said offence to forfeit and pay the sura of twenty dollars,
over and above the amount of the article so stolen as
aforesaid, and the further sum of six shillings, Ixiing 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 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 the said
J. N., situate feloniously did steal, take and carry
away, against the form of the statute in such case made
and provided. — Archbold,
24. Every one who steals t destroys, or damages, with intent to
steal, any cultivated root, or plant used for the food of man or beast,
or for medicine, or for distilling, or for dyeing, or for or in the course
of any manufacture, and growing in any land, open or inclosed, not
being a garden, orchard, pleasure ground, or nursery ground, shall,
on summary conviction, be liable to a penalty not exceeding five
dollars, over and abo' :? » le value of the article so stolen or the amount
of the injury done, or to one month's imprisonment with hard labor;
2. Every one who, having beer, convicted of any such offence, either
against this or any other act or law, afterwards commits any of the
offences in this section mentioned, is liable to three month's impris-
onment with hard labor.— 32-33 V., c. 21, ». 27. 24-25 V., c 96, s. 37,
Imp.
Clover has been held to be a cultivated plant, JR. v.
Brunsby, Z C. & K. 315 ; but it was doubted whether
grass were so. — Mortis v. Wise 2 F. & F, 51.
STEALING ORES OR MINERALS.
SS5. Every one who steals, or severs with intent to steal, ore of
any metal, or any quartz, lapia calaminaris, manganese, or mundic,
or any piece of gold, silver or other metal, or any wad, black cawlk,
or black lead, or any coal, or caanel coal, or any marble, stone or
LARCENY.
313
two ,ear« ; ' '° "°P"«<»i'nent for any term le„ ,h»„
.he- Zp-yizt^rt si„ *"^ «*"" - '■-^".. -r
un,„clo.ed and not ocoapied or 3^ LI Z ' """ °'*'°"»''
ad.entnrer if ihfsZe Ir^". 1 "'' '"'^ P™P'i«orof, or any
" gunty of Wony.ld liSl*""" °'- "■'»" '"'P'"''"' """i".
two ye«r,._33ir., o. 2r"'S.'"'SV?riS%°r7; ''"' '■■'■'
sect 26 V\ ",?• "^ ^- '*'• ™"" »»'^ M "^de
sect 26. It must be alleged and proved that the ore wL
stolen from the mi„e.-A v. Trevenn..r. 2 M ^JtoTJe
Indutmenturuler.ect.25 twenty poll tt!ht
copper ore, the property of J. N., f«> ,/a certa n t
ot copper ore of the said J. N., situate feloniou !v
-.:sr "" -"" -'■ ^-- '"^ '-•■•'
Indictment under sect. 26 nf u • ,
»d th,re employed in a cer^iu-^per mi^e^e'^'Slt
, •■•• "'«' P''<>l«rty of feloniously did take
0,- r.™o,. or coneeal) fifty pounds' weight of Jl^^^
ment for oflence un..or » .cs. 25 to 29 of this Act.
,■1 'l
i\ t'
.~*^ fl
A\
1*^
%
314
LARCENY.
27. Every one who, being the holJer of any lease or license issued
under the provisions of any Act relating to gold or silver mining, or
by any person owning land supposed to contain any gold or silver, by
any fraudulent device or contrivance, defrauds or attempts to defraud
Her Majesty, or any person, of any gold, silver or money payable or
reserved by such lease, or with such intent as aforesaid, conceals or
makes a false statement as to the amount of gold or silver procured
by him, is guilty of a misdemeanor, and liable to imprisonment for
any term less than two years.— 32-33 V., c. 21, s. 30.
28. Every one who, not being the owner or agent of mining claims
then being worked, and not being thereunto authorized in writing by
the proper officer in that behalf, named in any Act relating to mines
in force m any Province 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 or mining district, or gold mining division, is guilty of a
misdemeanor, and liable 5o imprisonment for any term less than two
years.— .'^'> 13 r.,c. 21, «. 31.
29. Every one who purchases any gold in quartz, or any unsmelted
or smelted g id or silver, or otherwise unmanufactured gold or silver,
of the value of oi > dollar or upwards (except from such owner or
authorized person as in the next preceding section mentioned), and
does not, at the same time, execute in triplicate an instrument in
writing, stating the place and time of purchase, and the quantity,
quality and value of gold or silver so purchased, ami the name or
uames of the person or persons from whonj the same was pur.hased,
and file the same with the officer in the next preceding section men-
tioned, within twenty days next after the date of such purchase, is
guilty of a misdemeanor, and liable to a penalty not excusing in
amount double the value of the gold or silver purchase.!, and to
imprisonment for any term less than two years.— 32-33 F., c.<21, s. 32.
30. The possession, contrary to the provisions of any law in that
behalf of any smelted gold or silver, or any gold-bearing quartz, or
any unsmelted or otherwise unmanufactured gold or silver, by any
operative, workman or laborer actively en<;aged in or on any mine, is
primd facie evidence that the same had been stolen by him.— 32-33
v., c. 21, 8. 35.
See sec. 53 Procedure Act as to search warrants.
31. Every one who, with intent to defraud his co-partner, co-
adventurer, joint tenant or tenant in common, iu any claim, or iu any
LARCENY.
315
'X^TJwTel '". *"-^ «'*■'»• «««-*'^ keeps back or concealH any
gol.i or silver found m or upon or taken from such claim ia g„i1tv of
felony, and liable to be punished as in the case of s mn « l ^
32-33 v., c. 21 a. 37. " »" 'a me case ot simple larceny.—
The above five sections are not in the English Act!
STEALING FROM THE PERSON. AND OTHER LIKE OFFENCES.
or^f!;..^r'^ ''"'7''** '"^ *"^ P^''"^"' °^ «'«»!« *"y chattel, money
L "hf VT"*''^ '™'" '^"^ P«'«*^" Of another, is guiltv o felony
t^lT^iaZi^r' •■™^'^-"'---^^-^^ y-' ^' 21-39:
On trial for robbery, conviction may be under next
clause. Sec. 192 Procedure Act. naer next
of Sonv^'^^f ''"' ''•'^ '*''*"^''* ''"y P^'*^*^" ^'"» '"t^nt to rob is guilty
/nc^^o<men< /or stealvng from the person under sect
t M '";'*••; T '^^^''^' ''"^ pocket-book and one pocket
handkerchief of the goods and chattels of J N of
from the person of the said J. K feloniousi; did *;;;;*{
take, and carry away, against the form -Archbold,
The words "from the person of the said J. N." consti-
tute the chamcteristic of this offence, as distinguished from
.imple larceny; the absence of force, violence or fear dis-
tinguishes it from robbery.
Tne indictment need not negative the force or fear neces-
sary to constitute robbery; and though it should appear
upon the evidence that there was such force or fear^he
punishment for steahng from the person may be infli;ted
-M. V. Mohnson, R. S M. 321 ; B. v. Pearce, M. & R
! ! '
in'\
^m
r]m
316
LARCENY.
To constitute a stealing from the person, the thing 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 prosecutor 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 of 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 per-
son of the prosecutor, but the judges all agreed that the
simple larceny was complete. Of ten judges, four were of
opinion that the stealing from the person was complete. —
M. v. Thompson, 1 Moo. C. C. 78.
Where the prosecutor carried his watch in his waistcoat
pocket, fastened to a chain, which was passed through a
button-hole of the waiscoat, 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 suffi-
cient severance. The watch was no doubt temporarily,
though but for a m'^ ut at, in the possession of the prisoner.
— R. V. Simpson, Dears. 621. In this case, Jervis, C. J.
said he thought the minority of the judges in Thompson's
case, supra, were right.
Where a man went to bed with a prostitute, leaving his
watch in his hat, on the table, and the woman stole it whilst
he was asleep, it was held not to be stealing from the per-
y>
f '•'■*Jlil
LARCENY.
317
Ta T;!^:" *" '"» O-W-house.-A V. Hamilton,
J^Vt '"" "' ""^ '"'"'=""™' f- -"'•"i-S from the
person, it no asportation be nmvfiH fk„ • s '"'" we
the prisoner of Tn .tte„,,t ^Zl^tZlT' ""?'
sect. 183 of the Procedure Act ™- """**'
In i2. V. Collins, L. Jk C 471 ,> «, i. i ■. ,
can only be an attemot f. • ^'^^ ^^^* *^«^«
is such a beginnin?!^ T'"'' '" "''' ^^^^^ ^^^^^e.
« oeginnmg as if uninterrupted would end in fk
completion of the act anrl fKof ^ ^" ^^^
into a pocket withTnlnT^ ^ , / ^'''"" ^"^"^ ^'« ^*«d
of an aLniptT st^:rif IT^ '^ "T ^ '^ ^^"^^ g"%
iigutiy 80, it IS the criminal inf^^nf tu
sTfor :r :^"'' """"»' ?•"■"'>-■"• But why Z
so for the other case ? What is thn rfim. T^
putting the hand into the po k t and f T'!- ^'"''■'
to steal whatever may be in the licet in thf '"^.
Indktrn^ntM robbery under eect. 33.-. ;„ „„.
feloniously did put, and the moneys ofthesid J N ,
the amount of ten pounds from ti,/ , •' ^
will of the said J N then fel ^ ".'""' ''^'''^' ">^
steal t^l,„ .„A feloniously and violently did
Tj^ib^U ' ""^ ''™^' ''«^-' «■' f»™ •■-
The indictment may charge the defendant with having
n
-^
mmmummmmm
MM
3ia
LARCENY.
assaulted several persons, and stolen different sums from
such, if the whole was one transaction— yl rc/i6oW.
The crime of robbery is a species of theft, aggravated by
the circumstances of a taking of the property from, tite
person or whilst it ia under the protection of the person
hy means either of vioUnce "or" putting in fear.— 4i/i
Mep. Cr. L. Cmnmrs. LXVIL
Kobbfirj is larceny committed by violence from the
person of one put in fear.— 2 Bishcyp, Cr. Law. 1156.
This definition differs in the form of expression, though
not in substance, from wliat has been given by prececiing
authors.
To constitute this offence, there must be : 1. A larceny
embracing the same elements as a simple larceny ; 2. vio-
lence, but it need only be slight, for anything which culls
out resistance is sufficient, or what will answer in place of
actual violence, there must be such demonstrations as put
the person robbed in fear. The demonstrations of fear must
be of a physical nature; and 3. the taking must be from
what is technically called the "person," 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.— Bwt^p, Stat.
Crimes, 517.
1. Larceny.— ViohhQYy is a compound larceny, that is, it
is larceny aggravated by particular circumstances. Thus,
the indictment for robbery must contain the description of
the property stolen as in an indictment for larceny; the
ownership must be in the same way 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 simple larceny.
If a statute makes it a larceny to steal a thing of which
there could be no larceny at common law, then it becomes,
LARCENY.
319
- Jiuth ri, Cr. Law, 1158 llltl iifin « loar.—
either by fee or „n„„ h ' ' ^" »'=""'' '"'<ing
good. iWefore if a robb^ cu . l„t S"""" f ""^
colorable pretencc-^MM. tl7 ^ ""'
A carrying away must also be proved a, m „,.,
of larceny. And therefore where tl? IV f ,"'''"
^eeting a .nan car:,i„g . ^Z t totytt" 'owr
he would shoot him and fho ^ , -^ ° ^"^
the bed, bnt the r„;:r^te": 1^:^1:1:'"™
to remove it from thp r.lo«« k • , " "P ^^ as
But a momentary possession, though lost »«.;„ ; .i
same mstant, is snfficient. James wir ^ ""^
of robbing a lady and t»t,„„ r u '^ ™' convicted
earrin,. ^The feli:^ fh':;;/;;: "T. >«-»» » -J«»o„d
of the Ope™ house she fel the ^wLrhTh'-'''" ■""
ring and tear it from her ear whilh k, f ^ """
much hurt, but the ear ng M " t„ h v* "" ""^
was found after she return d home Thli T' ""'" ''
of opinion that the earrinc bein^^n J ^^"' '""^ *"
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LARCENY.
was sufficient to constitute robbery, although he could
not retain it, but probably lost it again the same instant.
—2 East, P. G. 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 fall in
struggling, and never take it up again, having once had
possession of it. — 2 East, loc. cit. ; 1 Hale, 533 ; R, v.
Peat, 1 Leach, 228 ; Archbold, 417.
The taking must have been feloniously done, that is to
say animo furandi, as in larceny, and against the will of
the party robbed, that is, that they were either taken
from hira 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 the prisoner violently
assaulted tha 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. — R. v. Hemminga,
4:F.&F. 50.
2. ViolcTice. —ThQ 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
latter case, if the circumstances thus proved be such as
are calculated to create such a fear, the court will not
pursue the inquiry further, and examine whether the
LARCENY.
321
fear actually existed. Thereforp if o «, , t
down, and steal fa,m Um^^^olL^^^''.'':''''"
«bk on the ground, that ia X^ o ' ll": '"""-
make, a manfnl reaiatance, but i, o^^ZHndT"
property taken Irom him by the ^Z^nt^t !,!
strength, this is a robberyl/barm ff T-""
2 £a««, P. a 709. ' * "• ■°«'^'-
One Mrs. Jeffries, coming out of a ball, at St Ja-..a.
Palace whe™ she had been as one of the maids „f honor
the prisoner snatched a diamond pin from her L» A
with such force as to remove it wfth «rof 1^ f''
Held, to be a robbery._iJ. v. Jfow-e i Leaeh\T ^ '
mpra. Lapkr; Ca>e, 1 leach, 320 ' ' *°
Where the defendant laid hold of the seals and chain of
theprosecutorWatch, andpniled the watch out of hisfob
but the watch, being secn^d by a steel chain which wen^'
round the prosecutor's neck, the defendant could notlke
It unt,l, by pulling and two or three jerks, he broke te
ha.^ and then «n off with the watch; tliis was hold!
to be robbery._ie. v. Mason. H. ^ R 419 T"
merely snatching property from a pe«on unawares and
runnmg away with it, will not be robbery -rT^L j
2 East, P r "rno . j> tt '""iKTy.—M. v. bteward,
Md of the prosecn^s ^atch-c^: a^Sistlh
from h,s pocket with considemble force upon whT^ha
M L?H "' ""y™""'' "^ aecu^df Ga^w B.
Md that the force used to obtain the wat«=h did not make
fte offence amount t» „bhery, nor did the force used
afterwards ,n the scuffle, for the force necesrary to
w
1 91
t
I
322
LARCENY.
constitute robbery must be either immediately before or at
the time of the larceny, and: not after it. — R. v. Gnosil, 1
G, & P. 304. The rule, therefore, appears to be well
established, that no sudden taking or snatching of property
unawares from a person is sufficient to constitute robbery,
unless some injury be done to the person, or there bo a
previous struggle for the possession of the property, or
some force used to obtain it.^Archhold, loc. dt,; 2
RU88. 104.
If a man take another's child, and threaten to destroy
him, unless the other give him money, this is robbery. — R.
V. Reane, 2 East, P. C. 735 ; R. v. Donally, Id. 713. So
where the defendant, at the head of a mob, came to the
prosecutor's house and demanded money, threatening to
destory tU house unless the money were given, the prose-
cutor therefore gave him five shillings, but he insisted on
more, and the prosecutor, being terrified, gave him five
shillings more ; the defendant and the mob then took bread,
cheese and cider from the prosecutor's house, without his
permission, and departed, this was holden to be a robbery
as well of the money as of the bread, cheese and cider.— iJ.
V. Simons, 2 East, P. G. 731 ; R, v. Brown, Id. So where
during some riots at Birmingham, the defendant threatened
the prosecutor that unless he would give a certain sum of
money, he should return with the mob and destroy his
house, and the prosecutor, under the impression of this
threat, gave him the money, this was holden by the judges
to be robbery.— iJ; v. Astley, 2 East, P. G. 729. So where
during the riots of 1780, a mob headed by the defendant
came to the prosecutor's house, and demanded half a crown,
which the prosecutor, from terror of the mob, gave, this was
holden to be robbery, although no threats were uttered.—
R. V. Tallin J 2 East, P. G. 712. Upon an indictment for
lAKCENT.
323
robbery, it appeared that a mob came tn tl,. i,
prosecutor and with tl,. „ JT " * '""'*« "' ^be
prosecutor to ri™ th 1 Z H- """"^ "■"• '"»™-' '^^^
prevent mi chTef bt wh T "* '"«'=' "'" "^ "•«»- ""<•
from the proseruLf at ParlT S^ "^'^T-'^ ""-^
ghan and Anderaon.J J admit^H ' f ' "^"'"'""^ ^'"'■
f* mob at other pllce/^rafd a^^ fte'"^ "1' ""^
to show that the advice of the nril ^ '"■"'* ''"y-
but in reali;7 a mere 1h. f ^.^"^ "'*' °<" '«"'« ^*.
r rrrr p~ f -?~ » " -"
tbe. p.ete„::d:rxj:: x": rLf „r rr
never bid for it • and f},n,, J^- , ' "^<^ho"gh she
ed constable who t-^d 'her'tt""' T ""^'' '" " P'*-""
shUling she'mus go w' h t^ "td" f ««^» "■- "^
shilling accordindv L frl ' '"'' «*'" '»''" «
dangerTbut fC a fearof h "7 W'^''™«'»» °f Personal
beM that the e"c::i:2Xtse'°r:;tt^^^
now provided for by sect 2 o 17^ \ . "^^^^ ^^
Orath. 11 Co., 347f nomL^'wen t fnt a "t " ''''"
room, where the prisoner pressed Tj '""'"""■''''■'"
Somo cloth was Dut nn . /™*''"* fo »"' «8 auctioneer.
the room bid TsC^^luL"^ T'™' '"' "''*'''' » P-^"- ^
woman and U^fdoo Sto tr" '''"""« ''^'"^^" *«
2e.iningsrorit,n,r^h-hizrrrc":,':t:'^
must pay for it. before she Zld i^ a^n' T"" '"" ^"^
she was prevented from gdront 8^1 ^". ""' ""'*
gomg out. She then paid 26 shiU
LARCENY.
lings to ^he prisoner, because she was afraid, and left with
the"cloth ; the prisoner was indicted for larceny, und hav-
ing been found guilty, the" conviction was affirmed ; but
I^Iartin, B., was of opinion that the facts proved also a
robbery. Where the defendant with an intent to take money
from a prisoner who was under his charge for an assault,
handcuffed her to another prisoner, kicked and beat her
whilst thus handcuffed, put her into a hackney coach for
the purpose of carrying her to prison, and then took four
shillings from her pocket for the purpose of paying the
coach hire : the jury finding that the defendant had previ-
ously the intent of getting from the prosecutrix whatever
money she had, and that he used all this violence for the
purpose of carrying his intent into execution, the judges
held clearly that this was robbery.— iJ. v. Gascoigne, 2
East, P. C. 709. Even in a case where it appeared that the
defendant attempted co commit a rape upon the prosecutrix,
and she, without any demand from him, gave him some
money to desist, which he put into his pocket, and then
continued his attempt until he was interrupted ; this was
holden by the judges to be robbery, for the woman from
violence and terror occasioned by the prisoner's behaviour
and to redeem her chastity, offered the money which it is
clear she would not have given voluntarily, and the pris-
oner, by taking it, derived that advantage to himself from
his felonious conduct, though his Iginal intent was to
commit a rape. — R.v. Blajkham, 2 East, P. C. 711.
And it is of no importance under what pretence the
robber obtains the money, if the prosecutor be forced to
deliver it from actual fear, or under circumstances from
which the court can presume it. As, for instance, if a
man with a sword drawn ask alms of me, and I give
it him through mistrust and apprehension of violence,
LARCENY.
325
this IS a felonious robbery. Thieves come to rob A and
finding little about him enforce him by menace of death
to swear to bring them a greater sum. which he does accord-
ingly, this IS robbery ; not for the reason assigned by Haw-
kins, because the money was delivered while the party
thought himself bound in conscience to give it by virtue of
the oath, which in his fear he was compelled to take •
which manner of stating the case affords an inference that
the fear had ceased at the time of the delivery, and that
the owner then acted solely under the mistaken compulsion
of his oath. But the true reason is given by Lord Hale and
others ; because the fear of that menace still continued
upon him at the time he delivered the money.--2 East P
a 714. Where the defendant, at the head of a riotous mob
stopped a cart laden with cheeses, insisting upon seizina
them for want of a permit; after some altercation, he went
with the driver, under pretence of going before a magistrate
and during their absence ^': mob pillaged the cart; this
was holden to be a vohhevy.—MerHmam v. Hundred of
Chippenham, 2 East, P. C. 709. On this case, it is well
observed that the opinion that it amounted to a robbery
must have been grounded upon the consideration that the
first seizure of the cart and goods by the defendant, beina
by violence and while the owner was present, constituted
the offence of a robbery.--2 Russ. 111.
So where the defendant took goods from the prosecutrix
of the value of eight shillings, and by force and threats com-
pelled her to take one shilling under pretence of payment
for them, this was holden to be a robbery.^^mo'^'s Case
and Spencer's Case, 2 East, P. C. 712. The fear must pre-
cede the taking. For if a man privately steal money from
the person of another, and afterwards keep it by puttincr
him in fear, this is no robbery, for the fear is subsequent
p
26
LARCENY.
to the taking.— 12. v. Harman, 1 Hale, 534 ; and R. v.
Gnodl, ante ; Archhold, 416.
"■ It remains further to be considered of what nature this
fear may be. This is an inquiry the more difficult, because
it is nowhere defined in any of the acknowledged treatises
upon the subject. Lord Hale proposes to consider what
shall be said a putting in fear, but he leaves this part of
the question untouched. Lord Coke and Hawkins do the
same. Mr. Justice Foster seems to lay the greatest stress
upon the necessity of the property's being taken against
ike will of the party, and he leaves the circumstance of fear
out of the question ; or that at any rate, when the fact is
attended with circumstances of evidence or terror, the law,
in odium »poliatori8, will presume fear if it be necessary,
where there appear to be so just a ground for it, Mr. Justice
Blackstone leans to the same opinion. But neither of them
afford any precise idea of the nature of the fear or appre-
hension supposed to exist. Staundford defines robbery to
be a felonious taking of anything from the person or in the
presence of another, openly and against his will ; and
Bracton also rests it upon the latter circumstance. I have
the authority of the judges, as mentioned by Willes, J., in
delivering their opinion in Donally's Case, in 1779, to
justify me in not attempting to draw the exact line in this
case • but thus much, I may venture to state, that on the one
hand the feai is not confined to an apprehension of bodily
injury, and, on the other hand, it must be of such a nature
as in reason and common experience is likely to induce a
person to part with his property against his will, and to put
him, as it were, under a temporary suspension of the
power of exercising it through the influence of the terror
impressed ; in which case fear supplies, as well in sound
reason as in legal constructioin, the place of force, or an
LARCENY.
827
actual taking by violence, or assault upon the person "—
2 East, P. 0. 713.
It has been seen, ante, R. v. Aatley, 2 East, P.
C. 729, that a threat to destroy the prosecutor's housA
is deemed sufficient by law to constitute robbery, if
money is obtained by the prisoner in consequence of ib.
This is no exception to the law, which requires violence
or fear of bodily injury, because one without a house
is exposed to the inclement elements ; so that to deprive
a man of his house is equivalent to inflicting personal
injury upon him. In general terms, the person robbed
must be, in legal phrase, put in fear. But if force is used
there need be no other fear than the law will imply from
it ; there need be no fear in fact. The proposition is some-
times stated to be that there iriust be either force or fear,
while there need not be both. Tlie true distinction is
doubtless that, where there is no actual force, there must
be actual fear, but where there is actual force, the fear is
conclusively inferred by the law. And within this dis^
tinction, assaults, where there is no actual battery, are pro-
bably to be deemed actual force. Where tieither this force
is employed, not any fear is excited, there is no robbery,
though there be reasonable grounds for fear. —2 Bishop, O.
LaWf 1174. Thus to constitute a robbery from the person^
if there is no violence, actual or constructive, the part^
beset must give up his money through fear ; and when his
fears are not excited, but his secret motive for yielding is
to prosecute the ofifender, this crime is not committed.
When, however, there is an assault, such as would furnish
a reasonable ground for fear, the offence of robbery is held
to be complete, though the person assaulted parts with his
money for the purpose of apprehending and bringing td
punishment the wrong doer.-^l Bishop, Or. Law, 438.
lI'iliH..-
Ill
328
LARCENY.
From the persoti.— The goods must be proved to have
baen taken from the person of the prosecutor. The legal
meaning of the word person, however, is not here, that the
taking must necessarily be from the actual contact of the
body, but if it is from under the personal protection, that
vrill suffice. Within this doctrine, the person may be
deemed to protect all things belonging to the individual,
within a distance not easily defined, over which the
influence of the personal presence extends. If a thief,
says Lord Hale, come into the presence of A. and, with
violence and putting A. in fear, drive away his horse,
cattle or sheep, he commits robbery. But if the taking be
not either directly from his person, or in his presence, it is
not robbery.— 2 Bishop, Cr. Law, 1178 ; Blackstone Com.
4 vol. 242. In robbery, sdys Edst, 2 P. C. 707, it is suffi-
cient if the property be taken in the presence of the owner,
it need not be taken immediately from his person, so that
there be violence to his person, or putting him in fear. As
where one, having first assaulted another, takes away his
horse standing by him ; or having put him in fear, drives
his cattle out of his pasture in hi -i presence, or takes up his
purse which the other in his fright had thrown it into a
bush. Or, adds Hawkins, rob my servant of my money before
my face, after having first assaulted me. — 1 Hawkins, 214.
Where, on an indictment for robbery, it appeared that the
prosecutor gave his bundle to his brother to carry for him,
and while they were going along the road the prisoner
assaulted the prosecutor, upon which his brother laid down
his bundle in the road, and ran to his assistance, and one
of the prisoners then ran away with the bundle ; Vaughan,
B., intimated an opinion that under these circumstances
the indictment was not sustainable, as the bundle was in
the possession of another person at the time when the
LARCENY.
329
assault was committed. Highway robbery was a felonious
taking of the property of another by violence against his
will either from his person or in his presence : the bundle
m this case was not in the prosecutor's possession. If these
prisoners mtended to take the bundle, why did they assault
he prosecutor, and not the person who had it ~~R y FaU
hyws, 2 R^s. 107. The prisoners we; e convicted oU simple
larceny Qu^re, whether if the indictment had been for
robbing the brother, who was carrying the bundle, it might
not have been sustained, as it was the violence of the pris-
oners that made him put it down and it was taken in his
presence. In R. v. WHght, Styles, 156, it was holden that
If a mans servant be robbed of his master's goods in the
sight of his master, this is robbery of the master.-iV^oie
by Oreavea.
Where on an indictment for robbery and stealing from
the person, it was proved that the prosecutor who was para-
lyzed, received, whilst sitting on a sofa in a room, a violent
blow on the head from one prisoner, whilst the other pris-
oner went and stole a cash-box from a cupboard in the
same room ; it was held that the <Jash-box being in the
room m which the prosecutor was sitting, and he being
aware of that fact, it was virtually under his protection
and It was left to the jury to say whether the cash-box was
under the protection of the prosecutor at the time it was
stolen.—ii. v. Seluay, 8 Cox, 235.
Indictment.-HhB offence of robbery being felony it is
necessary for the indictment to charge the act to have been
committed '.feloniously." There is some reason to sup.
pose that, if this word "feloniously" is prefixed to the first
material allegation, its force will extend through and qual-
I y the rest-i^. v. NichoUon, X East, 346. But, however
this may be. if the violence which enters into the offence
^'i; 1.
LABCENY.
as one of its ingredients, is the first thing stated in the
indictnioMt, and the word " feloniously " is not employed
to iimilify it, but is inserted in a subsequent part of the
indictment, the whole will be insufficient. Thus, if the
allegation is that the defendant " in the king's highway,
therein and upon one did make an assault, and him
the said in corporal fear and danger of his life,
then and there feloniously did put, and one metal watch of
the property of the said then and there feloniously
did steal, take and carry away " it will be inade-
quate, because it does not charge the assault to have been
feloniously mple.— i2. v. Pelfryman, 2 Leach, 563;
2 Bishop, Cr. Proc. 1003. The taking must be charged
to be with violence from the person, and against t e will of
the party ; but it does not appear certain that the indict-
ment should also charge that he was put in fear, though
this is usual, and, therefore, safest to be done.
But in the conference on Donally's case, where the sub-
ject was much considered, it was observed by Eyre, B., that
the more ancient precedents did not state the putting in
fear, and that though others stated the putting in corporeal
fear, yet the putting in fear of life was of modern introduc-
tion. Other judges considered that the gist of the offence
was the taking by violence, and that the putting in fear
was only a constructive violence, supplying the place of
actual force. In general, however, as was before observed,
no technical description of the fact is necessary, if upon the
whole it plainly appears to have been committed with
violence against the will of the party. — 2 East, P. C. 783.
The ownership of the property must be alleged the same
as in an indictment for larceny. The value of the articles
stolen need not be stated. In R. v. Singly, 5 0. S P. 602,
the prisoner robbed the prosecutor of a piece of paper, con-
LARCENY.
831
Hi
taining a momorandiim of money tlmt a person owed him,
and It was hold sufficient to constitute robbery.
If the robbery be not proved, the jury may return aver*
diet of an assault with intent to rob, if the evidence war-
rants it. and then the defendant is punishable as undersea
33. By sec. 191 of the Procedure Act, if the intent be not
proved, a verdict of common assault may be given.— i2. v.
Jreher, 2 Moo. C. C. 283 ; K v. Hagan, 8 C. d: i\ 174 ,-i2.
v. Elks, 8 a d- P. 654 ; M. v. Nicholls, 8 C. (fc P. 269 M v
Wood/iall, 12 Cox, 240, is not to be followed h(,re, as the
enactment to the same effect is now. in England, repealed.
The word "together" is not essential in an indictment
for robbery against two persons to show that the ottence
was a joint one.— /J. v. Provoat, 1 M. L. R. Q. B. 477.
A prisoner accused of assault with intent to rob may bo
found guilty of simple assault.— iJ. v. Oncil, 11 JR. L. 334.
34. Every one wl.o, being armed witli an offensive weapon or
i..«trm»ent, robs, or assaults with intent to rob, any person, or
together with one or more other person or persons, robs or assaults
with intent to rob any person, or robs at.y person, and at the time of.
or nn.ned.ately before, or immediately alter such robbery, wounds,
beats, strikes or uses any other personal violence to any person, is
guilty of felony, and liable to imprisonmont for life.— 32-:J3 F.c 21
«.42. 24-26r.,c. 96,,.43, /«p. ' '
This clause provides for five offences : 1. Being armed
with any offensive weapon or instrument, robbing any
person.
2. Being so armed, assaulting any person with intent to
rob this person.
3. Together with one or more person or persons, robbing
any other person.
4. Together with one or more person or persons, assault-
ing any person with intent to rob this person.
6. Robbing any person, and at the time of or imme-
!il *
m
k
m
332
LARCENY.
,-."••-•. '•
''^iB-,1 ^1
\ ■ " ^-
diately before, or immediately after such robbery, wound-
ing, beating, striking, or ising any other personal violencG
to any person.
1. Indictment/or a robbery by a person armed that
J. S., on ......... at being then armed with a cer-
tain offensive weapon and instrument, to wit, a bludgeon,
in and upon one D. feloniously did make an assault, and
him the said D. in bodily fear and danger of his life then
feloniously did put, and a sum of money, to wit, the sum
of ten pounds, of the moneys of the said D., then felo-
niously and violently did steal, take and carry away against
2. Indictment for an assault by a person armed with
intent to commit robbery that J. S. on ...at
being then armed with a certain offensive weapon and in-
strument, called a bludgeon, in and upon one D. feloniously
did make an assault, with intent the moneys, goods and
chattels of the said D. from the person rind against the
will of him the lud D., then feloniously and violently to
steal, take and carry away, against the form
3. Indictment for robbery by two or more persons in
company that A. B. andD. H. together, 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 and
there together feloniously did put, and the moneys of the
said J. N". to the amount of from the person and
r-rainst the will of the said J. N., then feloniously and
violently together did steal, take and carry away, against
the form {If one only of them be ap/rehended, it
•will charge him by name together with a certain other
person, or certain other persons, to the jurors aforesaid
unknown). — Archbold, 418 ; 2 Rms. 142.
4. Indictmmt for, together with one or more person,
LARCENY-
333
or persons, assaulting with intent to ro&.— Can be drawn
on forms 2 and 3.
5. Mohhery ace6mpanied by wounding, ets.—Th&t J.
5* ** '• ^^ in and upon one A. M. feloniously
die make an assault, and him the said A. M. in bodily fear
and danger of his life the-i feloniously did put, and the
moneys of the said A. M. to the amount of ten pounds and
one gold waich, of the goods and chattels of the said A M
from the person and against the will of the said A M then
feloniously and violently did steal, take and carry away •
and that the said J. N. immediately before he so robbed
the said A. M. as aforesaid, the said A. M. feloniously did
wound, against (It will be immaterial, in any of
these indictments, if the place where the robbery was
committed be stated incorrectly.) ^Archbold 412
The observation, ante, apr.licable to robbery generally
will apply to these offences.
Under indictment number 1, the defendant may be
convicted of the robbery only, o"; of an assault with intent
to rob. The same, under indictments numbers 3 and 5
And wherever a robbery with aggravating circumstances'
that 13 to say, either by a person armed, or by several
persons together, or accompanied with wounding, is charged
in the indictment, the jury may convict of an assault with
intend to rob, attended with the like aggravation the
• assault following the nature of the robbery.—ie. v. Mitchell
2 Den. 468, and remarks upon it, in Dears. 19.
By sect. 191 of the Procedure Act, a verdict of common
assault may be returned, if the evidence warrants it And
by sect. 183, if the offence has not been completed a
verdict of guilty of the attempt to commit the offence
charged may be given, if the evidence warrants it.
Upon an indictment for robbery charging a wounding
,*,j*
334
LARCENY.
the jury may, under sec. 189 of the Procedure Act;
convict of unlawfully wounding. — 2 Ruas, 144.
See R. V. Provost, under preceding section..
BURGLARY.
GENERAL REMARKS.
Burglary, or nocturnal housebreaking, hurgi latrocu
nium, which by our ancient law, was called hamesecken,
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
house, 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 TuUy (Pro Domo, 4\) " quid enim sanctius, quid
omni religione munitius, quam diymus uniuscujusqm
dviwni?" For this reason no outward doors can, in gene-
ral, be broken open to execute any civil process, though, iu
criminal cases, the 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
unlawful assembly, in order to protect and defend his
house, which he is not permitted to do in any other case.
— Stephens' Blackatone, Vol. 4, 104,
Burglary is a breaking and entering the mansion-house
of another in the night, with intent to commit some
LARCENY.
335
ffelony within the same, whether such felonious intent be
executed or not. -2 Rues. 1. In which definition there
are four things to be considered, the time, the place, the
nmnner, and the intent.
The time.—The time must be by night and not by day,
for m the day time there is no burglary. As to what ii
reckoned night and what day for this purpose, anciently
the day was accounted to begin only at sunrising. and to
end immediately upon sunset ; but the better opinion
afterwards was that if there were daylight or creptisculum
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 offence
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 sect. 2 of
the Larceny Act, that for the purposes of that Act, and in
reference to the crime now under consicJeration, "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."
The breaking and entering must both be committed in the
night-time; if the breaking be in the day, and the
entering in the night, or vice versd, it is no burglary.—
1 Hale, 551. But the breaking 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, seems to be burglary, for the breaking
and entering were both nodanter, though not the same
ill
s
j^i
336
LARCENY.
night. — 2 Ru88. 39. The breaking on Friday night with
int«ut to enter at a future time, and the entering on the
Sunday night constitute burglary. — R. v. Smith, M,
& R. 417. And then, the burglary is supposad 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.<kP. 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.
The place. — The breaking and entering must take place
in a mansion or dwelling-house to constitute burglary.
At common law. Lord Hale says that a church may
be the subject of burglary, 1 HaU, 559, on the grouad,
according to Lord Coke, that a church is the mansion
house of God, though Hawkins, 1 vol. 133, does not
approve of that nicety, as he calls it, and thinks 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 35 and 42 of the Larceny Act.
What is a dwelling-house ? — 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. v. Lyons, 1 Leach, 185 ; in
this case, neither 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
slept in it for the purpose of protecting it ; but none of
Holland's family had yet taken possession of the house,
and the Court held that it was not the dwelling-house of
lakcent;
337
any of h« family, slept in the house, it is not his dwemJ.
honso, so as to make the breaking thereof buiglary, thou.h
he ha, used it for his meals, and all the purpj; ,f hf
bu8mess._See S. v. MaHm, M. 4i R. 108
If a porter lie in a warehouse for the purpose of proteet-
mg goods A V. maUh. 2 £a.«. 497, or a servant L i„ »
tern m order to wateh thieves, R. v, i5r»«,„, 2 i'o^ 501
this does not make the warehouse or barn a dwelli„g4„„se
m whjoh burglary can be eommitted. But if the agent o?
a pubhe company reside at a warehouse belonging to hi
employers, th.s crime may be committed by breaking il
and he may be stated to be the owner.-ij. v. Mara<l I
W, 931. Whe:. the landlord of a dwelling-hou fate
the tenant, whose furniture he had bought, had quitled it
put a servant into it to sleep there at night, until he shouli
re-let It to another tenant, but had no intention to reside
n ith=mself ; the judges held that it could not be deemed
the dweUmg-house of the Iandlord._je. v. DavU. %L^
876. So where the tenant had put aU his goods and fur-
niture mto the house, preparatory to his removing to it
w h h.s famdy, but neither he nor any of his family had ai
yetriept,n,t,,twashold6n not to be a dwelling-house in
wh,ch burglajy can be committed._iJ. v. BaUard, 2 EaM,
m ; R V. 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
hoase for the protection of the goods and furniture in it
nntd It should be ready for his residence.-ij. v HarriJ
2 Leach, 701 ; R. v. F^,, i z^^, ^gj ^ ^^^^^^ J
not cease to be the house of it8 owner, on account of his
occasional or temporary absence, even if no one sleep in it
provided the owi :r has an animus reverteudi.—S v
iu
338
LARCENY,
!M
Murray, 2 East, 496; and in B. v. KirUuim, 2 StarUe, Ev.
279, Wood, B., held that the offence of stealing in a dwel-
ling-house had been committed, although the owner and his
family had left six months before, having left the furniture
and intending to return.— Idem, Nutbrown'a Case, 2 East,
496. And though 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 his 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 him, and the shop may still be con-
sidered as part of his dwelling-house.— J2. v. Oibhons, R.
& R. 442. But where the prosecutor and upholsterer,
left the house in which he had resided •^rith his family,
without any intent of returning to live in it, and took a
dwelling-house elsewhere, but still retained the former
house as a warehouse and workshop ; two women employed
by him as workwomen 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.— iJ. v. Flannagan, R. &
B. 187. The occupation of 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.— i2. v. Stock, R. & R. 185 ; R. v.
Wilson, R.<S;R. 115. Where the prisoner was indicted for
burglary in the dwelling-house of J. B., J. B. worked for
one W. who did carpenter's work for a public company, and
put 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
lAHOEBT.
339
hve m the house. It was held not rightly l«id_P ..
^whngs. ra^P. 150. If a servant «ve'^^„Tho«f; of
hs master s at a yearly rent, the house eannot be descri ll
as the master's house—A v. Jarvis. 1 Moo 7 F„
pernjanent building, in which the rente7:„wnl',f7j:^
family dwell and lie, is deemed a dwelling-hous" and bu
glary may be commit..d in it. Even a set of hamt^t
an mn or court or college is deemed a distinct dwdu.g!
house for this purpose.-4™/,6„w. 490. And it^l I
sufflcent .f any part of his family reside in tL^^
Thus where a servant boy of the pi^ecutor always sS
over h.s brew-house, which was separated from hifdwd?
mg-house by a public passage, but occupied therewTh it
was holden.np„n an indictment for bu^lary, thatThl b'ew
house was the dwelUng-house of the prosltor, ZonT
bemg separated by the i«asage, it could not be deemedt
^ part of the house in which he himself actually dwelt
mitted m a t«nt or booth in a market or fair, even al hough
the owner lodge m it, because it is a temporary not a 2
manent edifice. 1 Bale, 557 ■ but if it V. ^
building, though used on^^'^^T^T^
a dwellmg.house.-iJ. v. SM, 1 M. <fc Li. 256. So even
aloft over a stable, used for the abode of a coalman
wh.ch he rents for his own use and that of his Z^yl
a place wh,ch may be burglariously broken.-iJ. v. Turner
IL^h. 05. If a house be divided, so as to form two »
more dwelhng-houses within the meaning of the word "n
^ c! It °' ''"'^''"■^' '"' "" '■"^"'J communication
be ut o«C the parufons become distinct houses and each
art „, be j^garded as a mansion.-ie. v. Jone,. 1 w'
th kI. ' «>« J""" property of partners in tradein
which their business is carried on may be described Tthe
;?
(.4?
::*:!
II,
340
LARCENT.
dwelling-house of all the partners, though only one of the
partners reside in it. — R. v. Athea, 1 Moo. G. G. 329. If the
owner, who lets out apartments in his house to other per-
sons, 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 apartments 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 differ-
ent outer-dooi's, the apartments 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 dwell-
ing-house of the party who dwells in it, whether it commu-
nicates 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. v.Rodgers, R. v. Garrell,
R. V. 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
and dwells in is deemed in law to be the dwelling-house
of such tenant, whether the parts holden by the respective
tenants communicate with each other internally or not.
R. V. Bailey^ 1 Moo. G. G. 23 ; R. v. Jenkim, R. & R. 244 ;
R, V. Garrell, 1 Leach, 23'7.
The term dwelling-house includes in its legal significa-
tion all out-houses occupied with and immediately commu-
nicating with the dwelling-house. But by sec. 36 of the
Larceny Act, post, no building, although within the same
curtilage with any dwelling-house, and occupied therewith,
shall be deemed to be part of such dwelling-house for any of
LARCENY.
341
the purposes of this Act. unless there shall be a communica-
tion between such building and dwelling-house, either
immediate 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 a wash-house on the ground floor, and of
three bedrooms upstairs, 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 com-
munication between the wash-house 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 breakina
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.-i2 v Bur
roweslMoo. C. C. 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 kUn 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.-iJ. v. Eiggs, 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. adjoined and communicated
with a building let to and occupied by A. and B., it was
holden that the building could not be considered a' part of
the dwelling-house of A.—R. v. Jenkins, R, & R. 224 If
there be any doubt as to the nature of the building broken
and entered, a count may be inserted for breakincr and
entering a building within the curtUage, under sect 40
post. '
'il
■s (,
342
LARCENY.
Tt is necessary to state with accuracy in the indictment,
to whom the dwelling-house belongs. — 1 Bum, 554.
But in all cases of doubt, the pleader f^hould 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 tTi&\.^Archhold, 496 ; 2 Buss. 47,
49. As to the local description of the house, it must be
proved as laid ; if there be a variance between the indict-
ment and evidence in the parish, etc., where the house is
alleged to be situate, the defendant must be acquitted of
the burglary, unless an amendment be made. To avoid
difficulty, different counts should be inserted, varying the
local description. If the house be not proved to be a
dwelling-house, the defendant must be acquitted of the
burglary but found guilty of the simple larceny, if larceny
is proved.— Archbold, 489, 496.
The manner. — There must be both a hreahing and an
entei-ing of the house. The breaking is either actual or
constructive. Every entrance into the house by a tres-
passer 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 the owner, this is no burglary, because there is no
actual breaking of the house. But :f 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 breaking of the house. —
1 Hale, 551. Where a window 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 sufficient
breaking.— iJ. v. Smith, 1 Moo. C. C. 178.
If there be an aperture in a cellar window to admit
LARCENY.
343
light throu^i which a thief enter in the night, this is not
M, ^ Rob. 357. There is no need of any demolition of
the walls or any manual violence to constitute a breaking.
Lord Hale says: "and these acts amount to an actual
breaking, mz., opening the casement, or breaking the glass
window, picking open a lock of a door with a false key. or
the door that is only latched, to put back the leaf of a
window with a dagger." In MobeH's alias Chamber.' com,
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 Tracy, justices; but they thought
this the extremity of the law ; and. on a subsequent
conference. Holt. C. J., and Powell. C. J., doubting
and inchnmg to another opinion, no judgment was given
In BaUeys Case, M. S 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 permit. And it is burglarious breaking,
though none of the rooms of the house are entered Thus
m E. V. BHce, R. S R, 450. the prisoner got in at a
chimney and lowered himself a considerable way down
just above the mantel piece of a room on the ground floor.'
Iwo of the judges thought he 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 breaking of the dwelling-house, and that the lowering
nimself was an entry therein.
i *:. u -M.W:
■
4
344
LARCENY.
Whore the prisoner effected an entry, by pulling down
the upper saah of a window, which had not been fastened
but merely kept in its place by the pulley 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. v. HairieSj R. & R.
451. Where an entry was effected, first into an outer
cellar, by lifting up a heavy iron grating that led into it,
and then into the house by a window, and it appeared that
the window, which opened by hinges, had been fastened by
means of two nails as wedges, but could, notwithstanding,
easily be opened by pushing, the judges held that opening
the window, so secured, was a breaking sufficient to con-
stitute burglary. — R. v. Hall, R. <Ss R. 355. So 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. v. Robin-
eon, 1 Moo. a a 327.
But, if a window thus opening on hinges, or a door, be
not fastened at all, opening them would not be a breaking
within the definition of burglary. Even where the heavy
fiat door of a cellar, which would keep closed by its own
weight, and would require some degree of force to raise it,
was opened ; it had bolts by which it might have been fas-
tened 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 such a breaking of
the house as constituted burglary; ij['' liquid ,g that it was,
and six that it was not. — R. v. CaF \ r. /•.. R. 157. it
was holden in Brown's Case that it was. — 2 East, 487.
In R. V. Lawrence^ ^ C. & P. 231, it was holden that it
was not. In R. v. Russell, 1 Moo. C. C. 377, it was holden
that it was.
LARCENY,
846
^ hero tlio offender, with intent to commit a felony
obtams admission by some artifioo or trick for the purpoae
of eifectrng it. ho wiU be guilty of burglary, for this is a
constructive ..reaking. Thus, whore thieves, having aa
mtent to rob. raised the hue-and-cry. and brought the con-
stable, to whom the owner opened the door ; and when they
came in. they l)ound 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 color of title, and then rifle the house, such entrance
being gained by fraud, it will be burglarious. In HawUna*
Case, she was indicted for burglary; upon evidence it appear-
ed that she was acquainted 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-
mgly went with her, opened the door and let her in where
upon 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. a 485. If a servant conspire with a robber*
and let him into the house by night, this is burglary 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 the guilt. But if a ser-
vant, 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 —
M. V. Johnson, C. & M. 218.
And the breaking necessary to constitute burglary is
not restricted to the breaking of the outer waU or doors, or
346
LARCENY.
windows of a house ; if the thief got admission into the
house by the outer door or windows being open, and after-
wards breaks or unlocks an inner door, for the purpose of
entering one of the rooms in the house, this is burglary.—
1 Hak, 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. 0. 491 ; 1 Hale, 653 ; R.
V. 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 hours of sleep.. — R. v. Davis, R. fc R,
322 ; R. V. Bennett, R. & R. 289 ; R. v. Paine, 1 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 ; jR. v. Davis, 6 Cox, 369 ; R. v.
Smith, R. & R. 417. 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 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
LARCENY.
347
over the threshold: this was adjudged bui^lary by great
advice.— 2 East, P. C. 490.
In Qihhon'a Case, evidence that the prisoner in the night
time cut a hole in the window-shutters of a shop, part of
a dwelling-house, and putting his liand through the hole
took out watches, etc. was holden to be burglary, although
no other entry was proved.~2 East, P, C. 490. Introduc-
ing the hand through a pane of glass, broken by the pris-
oner, between the outer window and an inner shutter, for
the purpose of undoing the window latch, is a sufficient
entry.-.i2. v. Bailey, M. & R. 341. So would the mere
introduction of the offender's finger.-iJ. v. Dam 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
v. Brwe, R. & R. 450.
It is even said that discharging a loaded gun into a house
iz a sufficient entry._l Hawkins, 132. Lord Hale. 1 vol.
155, is of a contrary opinion, but adds quaere ? 2 East, P.'
C. 490, seems to incline towards Hawkins' opinion. Where
thieves bored a hole through the door with a centre-bit, and
parts jf the chips were found in the inside of the house
this was holden not a sufficient entry to constitute burglary
-R. V. Hughes, 2 East, P. G. 491. If divers come in the
night to do a burglary, and one of them break and enter,
the rest of ohem standing to watch at a distance, this is
burglary in all.— 1 Bum 550.
The entry need not be at the same time as the breaking
—R. V. Smith, R. & R. 417.
In R. V. Spanner, 12 Cox, 155, Bramwell, B., held, that
an attempt to commit a burglary may ije 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.
348
LARCENY.
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. — M. v.
Dobbs, 2 East, P. G. 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 conclusive that the
intent with which he broke and entered the house was to
commit that felony. Indeed, the very 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 merely. — R. v. Brice, R. & R.
450; R. V. Spanner, 12 Cox, 155. If the intent be at all
doubtful, it may be laid in different ways in different
counts. — R. V. Thomson, 2 East, P. C, 515 ; 2 Rvss. 45,
It seems sufficient in all cases where a felony has actually
LARCEKT.
349
been committed, to allege the commiadon of it, as that u
sufflcent evidence of the intention. But the intent to
commit a felony, and the actual commission of itmay
both be alleg^ ; and in geneml this is the better mode of
statement._i2. v. Fwmival, R. £ S. 445.
As to punishment, see post, on sect. 38
It wiU be observed that the entry may be before the
oreakmg as well .is after: fpr, though the., we™ once
different opimons upon the question as to whether Z
bi^aking oy, of a house to escape, by a man who had
pieviously entered by an op,n door with intent to comm^
BUKGLAEY AND HOUSE-BREAKING.
36. Every one who breaks and enters any clmrpl. nV. t
meeting-house or other place of divine wor«hin. J ' ^^^'
out ot the same, is cui ty of felonv a^A 1,0 ki * • . "™aK8
iife.-32.33r..c:2.,',.4rmrf:,r%,'*5o,ir'"°°'™'^'
Greaves says : « This clause clearly includes every place
of public worship; the former enactments were confin^
not only to steaUng, but to stealing any chattol.-(Sect. 17
not withm them._iJ. v. Barker. 3 Cox, 581 The preset
clause includes any felony, 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 are 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 actuaUy committed, the offence falls undo
«ct. 42, post A tower of a parish church is parcel of a
i! I
ir I J
t^-- |.vS*
360 LARCENY.
church ; R. v. Wheeler, S G. <S: P. 585 ; so is the vestry.—
M. V. Evam, C. & M. 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. v. Hutchin-
son, R. & R. 412. Where the goods belonging to a church
are stolen, they may be laid in the indictment to be the
goods of the parishioners. — 2 Ruas. 73.
Indictment for breaking and entering a church and
stealing 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 — Archhold.
Local description is necessary in the body of the indict-
ment. — R. V. Jarrald, L. & G. 320.
Indibtment for stealing in and breaking out of a
church. one silver cup, of the goods and chattels
of the parishioners of the parish of in the county
of ....•.#. in the church of the said parish there situate,
feloniously did steal, take and carry away ; and that the
said (defendant) so being in the said church as aforesaid,
afterwards, and after he had so committed the said felony
in the said church, as aforesaid, on the day and year afore-
said, feloniously did break out of the said church, against
the form — Archbold, 397.
If a chapel which is private property be broken and
entered, lay the property as in other cases of larceny. If
the evidence fails to prove the breaking and entering a
church, etc., the defendant may be convicted of simple
larceny.— Archbold, 396. Upon the trial of any offence
under this section, the jury may, under sect. 183 of the
lABCENY.
351
Procedure Act, convict of an attempt to commit such
offence. — 2 Ruse. 74.
36. No building, although within the eanie curtilage with any
dwelling-houoe, and occupied therewith, shall be deemed to be part
of such dweUing-house for any of the purpoaee of this Act, unieea
there is a communication betwi ;a such building and dwelling-house,
either immediate or by means of a covered and inclosed passage
leading from the one to the other.— 32-33 V., c. 21, a. 52. 24-26 V., c.
96, «. 63, Imp.
See remarks on burglary, and under sect. 40 post.
Where the burglary is in an outhouse, falling within
this clause, it must still be laid to have been done in the
dwelling-house.~2 East, P. G. 512; R. v. Garland, 2
East, P. G. 493.
"Curtilage" is a court-yard, enclosure or piece of
land near and belonging to a dwelling-house.— rom?.
Law Did.
37. Every one who enters the dwelling-house of another with
intent to commit any felony therein, or being in such dwelling-house,
commits any felony therein, and, in either case, breaks out of such
dwellmg-house in the night, is guilty of burglary.— 32-33 F., c. 21 a
60. 24-25 F., c. 96, «. 61, /nip. ' » •
Sect. 2, ante, declares what is night in the interpreta-
tion of this Act.
There was some doubt, at common law, on this point
Lord Bacon thought it was burglary, and Sir Matthew
Hale that it was not.— 4 Steph. Gomm. 109.
If a person commits a felony in a house, and afterwards
breaks out of it in the night-time, this is burglary, although
he might have been lawfuUy in the house ; if, therefore,*'a
lodger has committed a larceny in the house and in the
night-time even lifts a latch to get out of the house with
the stolen property, this is a burglariously breaking out of
the house.— i2. v. Wheeldon, 8 C. d; P. 747.
i
352
LARCENY.
It has been held that getting out of a house by pushing up
a new trap door, which was merely kept down by irs own
weight, and on which fastenings had not yet been put, but
the old trap-door, for which this new one was substituted,
had been secured by fastenings, was not a sufficient
breaking out of the house. — R. v. Lawrence, 4: G. <& P.
231. On this case Greaves says: "unless a breaking
out of a house can be distinguished from the breaking
into a house, this case seems oveiTuled by E. v. Russell,
1 Moo. a a 377."
If the felon, to get out of the dwelling-house, should
break an inside door, the case would plainly enough be
within the statute. But the facts of the cases seem not to
have raised the question, absolutely to settle it, whether
where the intent is not to get out, the breach of an inner
door by a person already within, having made what is
tantamount to a felonious entry, but not by breaking, is
sufficient to constitute burglary, if there is no entry
through the inner door thus broken. There are indications
that the breaking alone in such circumstances may be
deemed enough. — {R. v. Wheeldon, supra). On the other
hand, in an English case, it was held that burglary is not
committed by an entry, with felonious intent, into a
dwelling-house, without breaking, followed by a mere
breaking, without entry, of an inside door. — R. v. Davis,
6 Cox, 369 ; 2 Bishop Cr. L. 100. But in Kelyng's
Cr. C. 104, Stevens & Hayn^s* re-print, it is said that
if a servant in the house, lodging in a room remote from
his master in the night-time, draweth the latch of a door
to come into his master's chamber, with an intent to kill
him, this is burglary.
See next section for punishment and form of indict-
ment.
lAKCENT.
353
88. Every one who ooramit. the crime of bn™!,™ is li.H. .„
«npne„n,„e„. for lire.-32.33 K, o. 2,, .. 51. 24.S r^rsH 5^
On any indictment for bni^lary the prisoner may be
convic ed of the oifenc* of b.«aking the dwelling-L^
with intent to commit a felony therein under L 42
post ; gee, 193 Procedure Act. '
On an indictment for burglary, the prisoner cannot be
found gudty felonious ^.ceiving.-/, Z„«.«, " A 7
«. A it. 47. (But see sec. 135 Procedure Act )
Indwtmmt for burglary and hrceny to tU vah„ nf
t^^^^y-M doUars-Ti,. Ju«,. „ r Our Udy ;e t jf
upon the.r «>th present, that J. S., on . atout the
hour of eleven of the dock, of the night of the same dly
the dwellmg-house of J. N.. situate feloniouslv .Ia
burglariously did break and enter, with intenU g ^'s and
chattels of one KO.in the said dwelling-house thenbefng
felomously and burglariously to steal, take and carry away
and then, in the said dwelling-house, onesilversuglrbasfn'
of the value of ten dolhrs. six silver table-spoons of the'
vaue of tendoUars. and twelve silver tea-spoons of the
value ten dollar, of the goods and ehattelsTthf s M
K. in the said dwellmg-honse then being found felo
mously and burglariously did steal, take and carry 'away"
a„^mst the form of the statute in such case made and pri'
vided, and agamst the peace of Our Lady the Queen her
crowu and dignity. (Locaidesmption necessary )-My
Jan-ald, L. <t 0. 320.
JZ" *n '"t""""- ^' ^"'^"^"^^ 'f "^1 *e facts are
proved as alleged, may be convicted of burglary ; if thev
are all proved, with the exception that the breaiing w^
354
LARCENY.
by night, the defendant may be convicted of house-break-
ing, under se3t. 41, post; if no breaking he 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 dwelling-house to that amount, under sect. 45, post ; if
no satisfactory evidence be offered to show, either that the
house was a dwelling-house or some building communi-
cating 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 twenty-five dollars still the defendant may
be convicted of a simple larceny. — 1 Taylor, Evid, £16;
Archhold, 489 ; R. v. Withal, 1 Leach, 88 ; M. v. Comer,
1 Leach, 36 ; R. v. Hungerford, 2 East, P. (7. 518. Where
several persons are indicted together for burglary and
larceny, the offence of some may be burglary and of the
others only larceny. — R. v. Butterworth R. S R. 520.
See post remarks under sec, 39.
If no felony was committed 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 dwelling-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 f
there being found, then and there feloniously and bur
glariously to steal, take and carry away, against
3 Chitty, 1118.
The terms of art usually expressed by the averment
" feloniously and burglariously did break and enter " are
essentially necessary to the indictment. The word 6«.r-
glariously cannot be expressed by any other word or cir-
cumlocution; and the averment that the prisoner broke
LARCENT.
5^56
and entered is necessary, because a breaking without au
entering, or an entering without a breaking, will not
ma e burglary.-2 M^s. 50. The offence must be laid
to have been committed in a mansion-house or dwelling-
house, the term dwelling.fu>use being that more usualfy
adopted in modern practice. It will not be sufficient to
say a house 2 Muss. 46 ; 1 ffale, 560. It has been sai^
that the indictment need not state whose goods were
[TIkV: t'^^\^^--- «^«^--^. V. Clarke,
1 C. & K 62 ; nor specify which goods, if an attempt
1 Tarn' '' ''''^ """^^ '" charged.-i2. v. Johnson,
It is better to state at what hour of the night the acta
complained of took place, though it is not necessary that
the evidence should correspond with the allegation as to
the exact hour ; it will be sufficient if it shows the acta
to l;ave been committed in the night, as this word is inter-
preted by the stetute. However, in R, v. Thompson,
2 Cox, 377, It was held that the hour need not be speci-
fied and that it wiU be sufficient if the indictment alleges
m the mght. ^
The particular felony intended must be specified in the
indictment.— 2 Bishop, Cr. Proe, 142
Indutmsnt under sect 37. for burglary by breaking
o.^.-TIie Jurors for Our Lady the Queen upon their oath
present that J. S.. on ......... about the hour of eleven in
tne night of the same day. being in the dwelling-house
1 : \''^!'^^ one silver sugar-basin of the value
of ten dollars, six silver table-spoons of the value of
ten dollars, and twelve silver tea-spoons of the value
of ten dollars, of the goods and chattels of the said
ii. U., in the said dwelling-house of the said K. 0., thea
f i
If
i
,,!
;!■
'^^^^^^^^^B^^l
B ''f
i
i '^^^^Huj^l
b1
t
i|
'■fV/Cft-,.
356
LARCENY.
being in tho 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 burgla ' msly did break out of the said
dwelling-house of the said K. 0. 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.
An indictment alleging "did break to get out" or
"did break and get out" is bad; the words of tlie
statute are " break out." — R. v. Compton, 7 G. d: P.
139. See, ante, R. v. Lawrence, 4 (7. <fc P. 231 ; R. v.
Wheeldon, S 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, 501.
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. 183 of the
Procedure Act.
39. Every one who enters any dwelling-house in the night, witli
intent to commit any felony therein, is guilty of felony, and liable to
seven years' imprisonment.— 32-33 V., c. 21, *. 53. 24-25 V., c. 96, s.
64, Imp.
Greaves says : " This clause is new, and contains a very
great improvement of the law. It frequently happened
on the trial of an indictment for burglary where no pro-
LiRCENV.
887
for w«„ of sufflcont proof of the house havin/beeu
broken „,to, though them was no n.„ml douirtha
had been so. This clause will „eet all such case
wllalso meet all eases where any door or window has
been left open and the prisoner has entered by it „ Th
«.ght. t ,s clear that if, „n the trial of an ind c'm n
for burglary with intent to co„,n,it a felony, the Zf
a breakmg should fail, the prisoner might nevertheless
be convcted of the offence created by this clause for s.ch
an .nd,ctment contains everything that is required o
const, tute an offence under this clause, in additl " o tl e
allegat.on of the breaking, and the prisoner may be
acquxlted of the breaking and eonvicted of the enterin.
with .ntent to commit felony, in the same way as oTan
md.etment for burglary and stealing, he may be'^aequTtt d
of the bmk.ng, and convicted of the stealing. And t s
affords an additional r^r. why in an indictment f
butgkry and committing a felony, there should always be
mtroduced an averment of an intent to commit a felony
so that .f the proof of the commission of the felony and
of the breaking fail, the prisoner may nevertheless be
convctod of entering by night with intent to commit it "
Indutment.- that J. S.. on about the
hour of eleven m the night of that same day. the dwelUn.
of K. situate feloniously did enter, with intent
he goods and chattels of the said K. 0. in the said
dwelhng-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, in
the mterpretation of this clause, the same rules as for
burglary must be followed. Under sect. 183 of the Pro
cedure Act, the jury may, if the evidence warrants it,
If :
358
LAUCENT.
convict of an attempt to conunit the offence charged, upon
an indictment under this section.
Local description is necessary in the indictment. See
next section.
40, Every one who breaka and enters any building and commits
any iHony therein, fluch building being williin the curtilage of a
dwelling-houHe and occupied therewitli, but, not being part thereof,
according to the provision hereinbefore mentioned, or being in any
such building, commitu any felony tlierein and breaks out of the same,
is guilty of felony, and liable to fourteen years' imprisonment.— 32-33
v., c. 21, 8. 64. 24-25 V., c 96, s. 65, Imp.
The breaking and entering must be proved in the same
manner as in burglary, except that it is immaterial whe-
ther it was done in the day or night. If this proof fail, the
defendant may be convicted of simple larceny.
The building described in the statute is " any building
■within the curtilage of a dwelling-house, and occupied
therewith, not being part of the dwelling-house, according
to the provision hereinbefore mentioned '' that is, not com-
municating with the dwelling-house, either immediately or
by means of a covered and enclosed passage leading from
the one to the other." To break and enter such a building
was, before the present statute, burglary, or house-];reaking,
and although this enactment, which expressly defines the
building meant thereby to be a building within the curti-
lage, 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 sub-
jects may afford some guide to the construction of the pre-
sent 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
LARCENY.
859
yard wa, surrounded, partly by other building, of the
hotiiostoad, and partly by a wall in which there was a gate
leading to the road, and some of the buildings had doora
opennig into the lane, as well as into the yard, the goose,
house was holden to be part of the dwelling-house —R y
Clayhum, R. d; Ji. 3^0. Where the prosecutor's house was
at the corner of the street, and adjoining thereto was a work-
shop, beyond which a coach-house and stable adjoined aU
of which were used with the house, and had doors opening
into a yard belonging to the house, which yard was sur-
rounded by adjoining buildings, and was altogether enclo-
sed, but the shop had no internal communication with the
house, had a door opening into the street, and its roof was
higher than that of the house, the workshop was holden to
be a parcel of the dwelling-house. -A v. Chalking, M. S
M. 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 house also opened and which enclosed
b )th, was holden to be part of the dwelling-house.~i2 v
Lithgo, R. cfc R. 357. So, where in one range of buildings
the prosecutor had a warehouse and two dwelling-houses,
formerly one house, aU of which had entrances into the
street, out 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 dwelling-house of the prose-
cutor ; It was so before the division of the house, and remain-
ed so afterwards.— i2. v. WaUers, 1 Moo. C. C. 13. And
where th > dwelling-house of the prosecutor was in the centre
of a space of about an acre of land, surrounded by a garden
.'ii
^, I'l
360
LARCENY.
wall, the front wall of a factory, and the wall of the stable-
yard, the whole being the property of the prosecutor, who
used the factory, partly for his own business and \ irtly in
a business in which he had a partner, and the factory open-
ed into an open passage, into which the outer door of the
dwelling-house also opened, it was holden that the factory
was properly described as the dwelling-house of the prose-
cutor.— i2. V. Hancock, JR. & R. 170. But a building sepa-
rated from the dwelling-house by a public thoroughfare
cannot be deemed to be part of the dwelling-house. R. v.
Westwood, R. d R. 495. So neither is a wall, gate or
other fence, being part of the outward fence of the curti-
lage, and opening into no building but into the yard only
part of the dwelling-house.— i2. v. Bennett, R. S R, 289.
Nor is the gate of an area, which opens into the area only,
if there be a door or fastening to prevent persons from pass-
ing from the area into the house, although that door or
other fastening may not be secured at that time. — R. v.
Davis, R. <& R. 322.
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.— i2. v. OilbeH, I C. & K. 84. See R.
V. Egginton, 2 Leach, 913 ; Archbold, 405.
Indictment — a certain building of one J. K,
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.
LAECENY.
361
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. m the said building then being, feloniously to steal
take and carry away, and that the said J. S. then and
there, m the said building, one silver watch, of the goods
and chattels of the said J. N. feloniously did steal, take
and carry away, against the form
^ This count may be added to an indictment for burglary
hcusebreaking or stealing in a dwelling-house to the amount
of twenty.tive dollars, and should be added, whenever it
IS doubtful whether the building is in strictness 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. 42, po8t, as this indictment alleges
the intent as weU as the ^Qt.—Archhold, 404
Under sect. 183 of the Procedure Act. a verdict of guilty
of an attempt to commit the offence charged may be given
upon an indictment on this section, if the evidence war-
rants it.
Local description is necessary in the indictment.—i? v
Bullock, 1 Moo. a a 324, note a. ' '
41. Every one who breaks and enters any dwelling-house, school.
hou«e, shop warehouse or counting-house, and comnuts any felony
herein, or being m any dwelling-house, school-house, shop, ware-
house or counting-house, commits any felony therein, and breaks out
of the same, is guilty of felony, and liable to fourteen year«' impris
onment.-32.33 F., c. 21. .. 65. 24-25 V., c. 96, s. 56, Imp. ^
The breaking and entering must be proved in the same
manner as m burglary, except that it need not be proved
i!
:;•
_&
362
LARCENY.
to have been done in the night time. But if it be proved
to have been done in the night-time, so as to amount to
burglary, the defendant may, notwithstanding, be convicted
upon this indictment. — R. v. Fearce, R. d; M. 174; R. v.
Robinson, R. & R. 321 ; Archhold, 399. And so, also, any
breaking and 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, in order to steal money
from the till, it was held that this was a sufficient breaking
to support an indictment for housebreaking. — JR. v. Wen-
mouth, 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 pris-
oner may be convicted of the felony described in sect. 45,
post ; 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. — Arch-
bold, 399. The same accuracy in the statement of the
ownership and situation of the dwelling-house is necessary
in an indictment for this offence as in burglary. But it
mast be remembered that any error in these matters may
now be amended under the Procedure Act. — 2 Russ. 76.
Sec. 36, ante, applies to this clause, as well as the rules
which govern the interpretation of the words dwelling-
house in burglary. — 2 Russ. 76.
As in simple larceny, the least removal of the goods from
the place where the thief found them, though they are nob
carried out of the house, is sufficient upon an indictment
for house-breaking. It appeared that the prisoner, after
having broken into the house, took two half-sovereigns out
of a bureau in one of the rooms, but being detected, he
i^hrew them under the grate in that room ; it was held that
LARCENY.
^63
if they were taken with a felonious intent, this was a suf-
ficient removal of them to constitute the offence.— JB v
Ainier, 6 0. d; P. 344.
As 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 was not within the clause— i2. v. Sanders,
9 C. C& P. 79 ; but in R. v. Carter, ia<kK, 173, Lord Den-
man, C. J., declined to be governed by the preceding case,
and held that a blacksmith's shop, used as a workshop only'
was within the statute. A warehouse means a place
where a man stores or keeps his goods, which are not im-
mediately wanted for sale.— iJ. v. HUl, 2 Muss. 95. Upon
an indictment for breaking and entering a counting-house
owned by Gamble, and stealing therein, it appeared that
Gamble was the proprietor of extensive chemical works,
and that the prisoner broke and entered a building, part of
the premises, which was commonly called the machine-
house, and stole therein a large quantity of money. In
this building, there was a weighing machine, at which aU
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 build-
ing 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 paying the wages.
At other times, they were kept in another building caUed
the office, where the general books and accounts of the con-
cern were kept. It was objected that this was not a count-
ing-house ; but, upon a case reserved, the judges held that
it was a counting house within the statute.— i2 v PoUer
2 Den. 235.
An indictment for house-breaking is good, if it aUeges
1
364
LARCENY.
that the prisoner broke and entered the dwelling-house
and the goods of in the said dwelling-house thU
and there being found, then and there (omitting "in the
said dwelling-house ") feloniously did steal, take and carry
away.— ii. v. Andrews, C. & M. 121, overruling R. v
Smith, 2M.& Mob, 115, which Coleridge, J., said Patte-*
son, J., was himself since satisfied had been wrongly
^Qcided.^2Itu88.76, note by Greaves.
Indictment— the dwelling-house of J. N., situ-
^*® feloniously did break and enter, with intent
the goods and chattels of the said J. N., in the said dwel-
ling-house then being, feloniously to steal, take and carry
away, and one dressing-case of the value of twenty-five
doUars, of the goods and chattels of the sain J. N., then
in the said dwelling-house, then feloniously did steal] take
and carry away, against the form —Archbold, 398.
Upon th trial of an indictment for an otfence undfer
this section, the jury may, under sect. 183 of the Procedure
Act, convict the defendant of an attempt to commit the
same, if the evidence warrants it. But they can only
convict of the attempt to commi 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 pro-
perty of the prosecutor. It was 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 uouse. The jury acquitted the prisoner of
the felony charged, but found him guilty of breaking and
entering the dwelling-house of the prosecutor, and
attempting to steal his goods therein. Held, that the con-
LARCENY.
365
r W T7r^' ^"d *h-t a« attempt must be to
do that which, If successful, would amount to the felony
charged.-i?. v. McPherson, Dears. & B 197 Z
said in Archbold, 399. the prisoner, under such clrcum-
stances may be convicted of breaking and entering uitk
intent tocommit a felony, under sect. 42. ^ost. But only
If, as m the form above given, the intent is alleged, which
was not the case in R. v. McPherson, uU supra
Local description necessary in the indictmeut.-i? v
Bullock. 1 Moo. a C. 324, note a.
42. Every one who breaks and enters any dwelline-house chnrM,
chape meet.ng.house or other place of divfne worship raifbuS:
,ng w.th.n the curtUage, or school-house, ahop. warehou eorcountlnl
house, wUh mtent to commit any felony therein, is guilty 7^
See sec. 193 of Procedure Act.
Indictment- on .*... the dwelling-house of
^' ^•' ^'^''^^ » 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 dweUing-house there
being, then feloniously to steal, take and carry away
against the form of the statute is such case made and
provided. — Archbold, 403.
Where there is only an attempt, it is not always possible
to say what goods the would-be thief meant to steal and
an indictment for an attempt to commit larceny need no^
rf a489^'"^' '""'^''^^^ ^' ^' stolen.-i2. v. Johnson,
Upon an indictment under this section the prisoner
may be convicted, undor sec. 183 of the Procedure Act of
the misdemeanor of attempting to commit the felony
charged.— i2. v. Bain, X. <fc a 129.
Greaves says : « This clause is new, and contains a very
^in
866
LARCENY.
important improvement in the law. Formerly the offence
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 anything be much more
unreasonable than i . ' \e same acts done just after nine
o'clock at night sho! :^o liable to penal servitude for life,
but if done just before nine they should only be punishable
as a misdemeanor. It is clear that if, on the trial of an
indictment for burglary, with intent to commit a felony, 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
commit a felony (as in McPherson's case, ante, under last
preceding section). It will be well, however, to alter the
form of these 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 felony, and then to allege the felony that is sup-
posed to have been committed in the house. If this be
done, then, if the ev' lence 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.
Under any indictment under this section, it is no defence
that the prosecution haa proved a burglary.— /S>eci. 194
Procedure Act.
LARCENY.
867
Local description necessary in the indictment.-i^ v
Bulloch, 1 Moo. C. C. 324. Note a.
43. Every one who is found by niel.t armp<l with o. j
or Offensive weapon or i„«trun.y4fVha L rlu^^^
or enter into any dwelling-house ■.<HB«ther Tu irg w 1 1 "d
to commit any felony therein, or is found by night Imvir'n .
possession, without lawful excuse,-the proof of which .I^ . .
lie on hin.-any pickloc'. key, cr'ow, jack bit or ^^^e i re^nr
hou.e-break.ng. or any match or combustible or exploLve Si?
or .s found by night having his /ace blackened or S::;:':::!^^^
with .ntent to commit any felony, or is found by night in Tv dwe, '*
house or other building what.oev.^, with inte.ft to comn.Tt 'I.t^ lof
therein, ,8 gu.lty of a misdemeanor, and liable to threTyls in!l ^
onment.-32-33 V.,c. 21. s. 69. 24-25 V., c. 96, s6,, Mp. "^"'■
44. Every one who, having been convicted of any .„ch mi,
demeanor as m the next preceding section n.entioned, or ofaTv fel
commits any such misden.eanor, is liable to ten years wL ^*
-82-33 r., c. 21, s. 60. 24-2.5 F.. c. 96, s. 59 ^ ""P-««»'"ent.
The distinction between this clause and sect. 39, as far
as relates to being in a dwelling-house with intent to
commit a felony, is this, that under the previous section
the entry must be proved to have been in the night, but
under this clause, proof that the prisoner was in the
dwelhng-house by night with the intent to commit felony
18 enough, and it is unnecessary to prove whether he
entered by day or by night.
IndMtment for being found by night armed, with
mtent, etc -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 aimed with a certain dangerouTand
offensive instrument, that is to say, a crow-bar, with intent
then to break and enter into a certain dwelling-house of
A. B there situate, and the goods and chattels in the said
dwelhng-house then being, feloniously to steal take and
I!'
' I
■tji
868
LARCENY.
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, 501.
It is not necessary to aver that the goods and chattels
were the property of any particular person. — R. v. Lawes,
10. (S; K.Q2; R. v. Nicholas, 1 Cox, 218 j R. v. Clarke,
IC.iSo K. 421.
See, ante, sect. 2, as to the interpretation of the word
" night."
In R. V. Jarrald, 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 offensive
weapon and instrument, with intent to break and enter
into a building, and commit a felony therein, must specify,
as in burglary, the building to be broken into. Crompton,
J., was of opinion that the particular felony intended must
also be specified.
On this case, Greaves, 2 Rusa. 70, note gr., says :
" With all deference it is submitted that this decision is
clearly erroneous. The ground on which Cockburn, 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-breaking in the
night, constitutes the offence without any intent 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 intent 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 misconceived. It is quite
a mistake to suppose that these rules require the specifi-
cation of particulars where it is impracticable to specify
LAECENr.
369
that this Vision, i„.,ead oi^l^Z^'tCZtt:':'
Act ,n th.8 respect, is subatantially a veZl 'T/
hardly conceivable that, in the ^L^Zfi c Lt Tt Cin
be possible to prove an intent f. • ' ^ ^^'^
felony ^ ^^'"^ ^' «^°^niit any particular
To this Cave answers. (3 5..^, 252, note aj •
•••• ^^^ a close consideration of the sta l,^« . '
to confirm it (the decision in JarmJ/rl?. ^^''^
be that in au\he other cases IZth^^^ "^ T^ "'"
of house-breakina " an intlnf TTu ^'"^ ^"^Plements
the ^. being ar.eS :^uTZZ::iZ:^, ^7' ' ^^
the face blacked " or « bein^ bv n . i . ^^ ^^'''"S
are clearly no offences u 1 s /on t^ ""^-^-^ "
and the very essence of the offenTis s„l f Z"' ^"'"'•
But. with regard to '« having Tn/ '"^^ ^^'^^^^ous purpose
,• ".1. ^y"";^ ^*^"^S ^^struments of house-bre.'il'
ng, the statute implies the intent from the mZ f 1
iustrument, and throws the proof ofTn ^^'
nrisnnpr Ti,« , • ^ * mnocence upon the
he mtended to use as aiipK k^ , J"^/ «>"aiitnink
not any house-breaking implements, b^T:! ■ a^edl 1'
a dangerous weapon" not n<,aM„ e u , "^
has .. his face blacked " or ""a d ^1':? "" '"^' "
instruments of house-bre^inl M. [ ^"'""'^ ""'»'«
n.ust be laid and pr" ed :^Tdd'' "' ^"'""'^ '■"«■"
hour of eleven in the night of iirsTe d";;";;" °"' ""'
found, he the said (Uefen^antJ then andX^b^^ilb":
M;
;«
■ it fl
..^\
370
LARCENY.
as aforesaid, unlawfully having in his possession, without
lawful excuse, certain implements of house-breaking, that
is to say,, two crows, three jacks and one bit against the
form — Archhold, 502.
It seems that local description is necessary.— iJ. v. Jar-
raid, L & C. 301.
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.— 22. v. Oldham, 2 Den. 472.
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 commit a felony, and the indictment 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.
R. V. Bailey, Dears. 244.
Indictment for being found by night with a dis-
guised face ivUh intent to commit felony Somerset-
shire (to wit.)— The Jurors for Our Lady the Queen upon
their oath present that on the first day of May, in the year
of our Lord 1852, about the hour of eleven in the night of
the same day, at the parish of Swindon, in the county of
Somerset, A. B. was found by night as aforesaid then and
there having his face blackened (blackened or otherwise
d i8guised),''yf ith intent then and there by night as afore-
said feloniously, wilfully, and of his malice aforethought,
to kill and murder one C. T). (to commit any felony).
Indictment for being found by night in a house with
LARCENY.
371
intent to commit a felony therein Yorkshire n
Lord 1852. abou. t.,fho„.'7, l™/- "t '/^S ^^ T
.1, . K u ' ^^"^^ ^''^"**«' ^'i<^h intent then and
there by naght as aforesaid in the said ^^in^.^^fdc^
niously to steal, take, and carrv aw«v fi -^ '"''^^ ^^^O"
chattelsofthesaidC i) then amf .h \ ?''^' ""^
1 11 • , " « '^. ^. men and there being in the qaiH
In A V. Tkompaon. 11 (7<», 362, /««, t^^j ^,
several persons are found out together by n ght Jthe
common purpose of house-br^aking. and ^e'e^wl ia
possess,„n of house-breaking implements, all may beflund
guilty of the m,sdemeanor created by this section for the
possession of one is in such case the possession of ka
STEAUNO IN THE HOUSE.
dollar. „. „„„. ■„ gu*^f f];::;";j^„'^',;'*° 'r"''-"'!
As to the meaning of the words valuable security '•
See, ante, sect. 2. ' "cv.untj.
Local description necessary in the indictment -R y
Fapper, 1 Moo. C. C. 44. " ^*
Indictment one silver su^ar ba«ii nf fT,n i
of t.e„ty.five dolh.rs.„fthe goodsanrctlut'^; r":
the dwelhng-house of the said A. B., situate ... " fell
B=ously d-d steal t,, ^„, ^^ against fte" f^™
—Archhold, 401.
If no larceny is proved the defendant must of course be
rij
%
,-\ -. ... .'-ir-r
Hi
I
872
LARCENY.
acqiiittod altogether, except if the jury should find hira
guilty of the attempt to commit the offence charged, under
sec. 183 of the Procedure Act, but the jury could not find
him guilty of an attempt to commit simple larceny.— ii.
V. McPher8on, Dears. & B. 197. See eujira, under sect. 41.
The word " dwelling-fiouae" has the same meaning as
in burglary and sec. 36, 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
off'ence, and may be found guilty of the simple larceny
only. — Archbold, 402.
The goods must be stolen to the amount of twenty-five
dollars or more at one and the same time. — R. v. Petrie,
1 Leach, 294 ; R. v. Hamilton, 1 Leach, 348 ; 2 Ruas. 85.
It had been held in several cases that, if a man steal the
goods of another in his own house, R. v. Thompson, R. v.
Gould, 1 Leach, 338, it is not within the statute, but these
cases appear to be overruled by K. v. Bowden, 2 Moo. CO.
285. Bowden was charged with, having stolen Seagall's
goods, in his, Bowden's, house, and having been found
guilty, the conviction was affirmed. Where a lodger
invited an acquaintance to sleep at his lodgings, without
the knowledge of his landlord, and, during the night,
stole his watch from his bed's head, it was doubted
at the trial whether the lodger was not to be considered
as the owner of the house with respect to the prosecutor ;
but the judges held that the defendant was properly con-
victed of stealing in the dwelling-house of the landlord ;
the goods were under the protection of the dwelling-
house.— iJ. V. Taylor, R. & R. 418. If the goods be
under the protection of the person of the prosecutor, at
LARCENY.
dra
P0»e «n<l thon r„„ away tiU, i » " """""'"^ '""-
■tW., 5(i4, and so, where th„ ' *'' ''""*'*"' 2
'h'' table, a,^ the ^eZL^ ^,t"J' 7'''' ''^'^
aw„y._ii. V. o«e», 2 Leach mi ^^ "'' """'"'' ''
within the statute, the ^ood, n!, V t » <aso to bfl
"on of the ho„s;. LTpX: ; left rtV'^ T^""
"^raon s„p,,osed to reside thSewf. . ' ^"^ *
'-«o„ of the house, within ^1:'"'";^ ">° P-
beo„g,„g to A., who resided at S8 B \ " '"'""
Oebvered by a ^rter. whet rty laltl/r'' T
not appear, at No 3S in fK »^J8take or design d d
tbe house i^agt;' It I '"'"' ""■"'■ ""^ "'^"^ "'
who lodged thel, ddi e^V ,LT..'" ""^ ""f^""""'
converted the cou'tentsTthe "es to hT ^ '"o defendant
absconded ; it was douhto,i ! .u ^ ""'n use, and
were suffi iently wUht the . "''^""'' *o good,
house to brino t[e ' , ' w .. ^''u^°"'"' "' ""■ dwelling.
he.d that the/. ^^^^ 'cl' ^ f '"'^. ^J-t «>.e Judgfa
on going to bed put his oLh 5 ' ^'^^ ^"^ "one
theae are under the 1'. ^ """''y "-y 'he bedside,
and not of the" -tdT °' *^ <'-»'ng-house'
a- under the plotb; of the dwell '°"/'''"" ^"^^
personal care of the owner 7 ''*'"'n«-'«»<ae, or i„ the
-d not for the u y I^'v rr"''""" '" '"^ -"«•
So where a n.„n went to bed ^r*"' '"'''': ^"^^^ ^^'■
P«t his watch in his h,t . prostitute, having
.tele the watch while he was ." "'' ""<' ""^ "oman
a3tc.a.inginadwemn .hoTse ITnlt' ':^ ""''' '» •-
■^' ^y- -out if money
•
1
LARCENY.
be Stolen from under the pillow of a person sleeping
in a dwelling-house, this is not stealing in the dwelling-
house within the meaning of the Act.— 2 Muss. 84. In
ascertaining the value of the articles stolen, the jury may
use that general knowledge which any man can bring to
the subject, but if it depends on any particular knowledge
of the tra<?.e by one of the jurymen, this juryman must be
sworn and examined as a witness.— i2. v. Bosser, 7 C. &
P. 648.
46. Every one who steals any chattel, money or valuable security
in any dwelling-house, and by any menace or threat puts any one
therein in bodily fear, is guilty of felony, and liable to fourteen years'
imprisonment— 32-33 F., c. 21, s. 62. 24-25 V., c 96, s. 61, Imp.
The indictment must expressly allege that some person
in the house was put in fear by the defendant.— i2. v.
Etherington, 2 Leach, 671.
Sect. 36, ante, and the observations under the head
« Burglary " upon questions which may arise as to what
shall be deemed a dwelling-house, will apply to the
offence under this clause.- 2 Buss. 78.
Xhe value, if amounting to twenty-five dollars, had
better always be inserted, as then, if no menace or threat,
or no person in the house being put in fear, are proved,
the defendant may be convicted of stealing in the dwell-
ing-house to the value of twenty-five dollars, under sect.
45. If there is no proof of a larceny in a dwelling house,
or the dwelling-house alleged, or if the goods stolen are
not laid and proved to be of the value of twenty-five
dollars, the defendant may still be convicted of simple
larceny, if the other aggravating circumstances are not
proved.
The value is immaterial, if some person was in the
house at the time, and was put in bodily fear by a menace
LARCENY.
375
or threat of the defendant, which may be either by words
01^ m^y^re—Ry. Jackson,! Leach, 2m
It is clear that no breaking of the house is necessary to
constitute this offence; and it should seem that property
might be considered as stolen in the dwelling-house
wi hm the meaning of the statute, if a delivery of it out
of the house should be obtained by threats, or an assault
upon the house by which some persons therein should be
put in fear. But questions of difficulty may perhaps
trr/' t/^T ^' '^^' "^^^^ muft be e'x Id by
f thp'.h Tr ''"'""' '^' ^'""'''^''^ '- consequence
of the threat of an armed mob, fetched provisions out of
his house and gave them to the mob, who stood outside
the door, this was holden not to be a stealing in the dwell-
ing-house -i2. ., Leonard, 2 Russ 78. But Greaves adds •
It IS submitted with all deference that this decision is
erroneous ; the law looks on an act done under the compul-
s.on of terror as tlie act of the person causing that terror just
as much as if he had done it actually with his own hands
Any asportation, therefore, of a chattel under the effects
of terror is in contemplation of law the asportation of the
party causing the terror."- iVo^^ g, 2 Rviss., he. dt If
so, in Leonard's case, suppose the prisoner had been taken
up by the police just before the prosecutor gave him the
provisions, and as he, the prosecutor, was coming with
them towards the prisoner, under the influence of terror
the offence would have been larceny, according to'
Greaves, as the asportation by the prosecutor was in Ipw
the asportation of the prisoner ; this would be going far '
To this remark, in the first edition of this work. Greaves
replied : " When an off.nce is committed through the agency
of an innocent person, the employer, though absent when
the act 18 done, is answerable as principal.-l Muss 53 •
•■i !
H:j
)
1
376
LARCENY.
Kel. 52, If a madman, or a child not at years of discretion,
commits murder or other felony on the incitement of
another, the latter, though absent, is guilty as principal ;
otherwise he would be wholly unpunishable. — Fost. 349.
Every act done by an innocent agent is in point of law exactly
the same as if it were done at the same time and place by
the employer. In burglary, if a man in the night breaks a
window and inserts an instrument through the hole, and
draws out any chattel, he is not only guilty of burglary
with intent to steal, but of burglary and stealing m the
house. The amotion by the instrument is the same as if
it were by the prisoner's hand. Now, an innocent agent
is merely the living instrument {E(ii\)vxov bpyavov. Arist.
Eth. 8, c. 13) of the employer. Then it is clear that any
terror, which is sufficient to overpower a reasonably firm
mind, will make an innocent agent ; and the threats of an
armed moh to a single individual are certainly sufficieut
to constitute such terror. In Leonard's case, therefore,
the prosecutor was an innocent agent ; and the moment
he asported any of the provisions in the house a single
inch, a larceny was committed in the house ; and that was
a larceny by the prisoner, for the prosecutor was his
innocent agent. In the case put, therefore, the prisoner
was guilty of larceny, though he never had the provisions ;
just as the inciter of an innocent agent is guilty of murder,
though he may be miles off when the murder is committed.
The rule as to innocent agency is exactly the same,
whether the offence consists of an asportation, as in
larceny, or of a single act, as in murder, by stabbing or
shooting. The act is the act of the inciter in every case
alike."
Obtaining money from any one by frightening him is
larceny.— iJ. v. Lovell, 8 Q. B. D. 185.
LARCENY.
377
It does not appear to have b.en expressly decided by the
epealed statute whether or not it was necessary to prove
the actual sensation of fear feb by some person in the
house, or whether fear was to be implied, if some personin
the house 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 the practice, that proof should be
given of an actual fear excited by the fact, when committed
out of the presence of the party, so as not to amount to a
robbery at common law. And it was observed that where tha
fact was committed in the presence of the party, possibly
It would depend upon the particular circumstances of the
transaction whether fear would 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 tne fact at the time, the case was not withia that
statute. But now, by the express words of the statute, the
putting m fear must have been by an actual menace or
threat.~.2 Rusa. 79 ; Archhold, 401.
A person outside a house may be a principal in the
second degree to menaces used in the house ; menaces used
out of the house may be taken into considemtion with
menaces used in the ho«se.-R. v. Murphy, 6 Cox, 340
Upon the trial of any offence mentioned in this section
the jury may, under sec.183 of the Procedure Act, convict
ot an attempt to commit such ofIence.--2 Buss 81
Indictment,^ one silver basin rq/ the value of
twenty-five dollars) of the goods and chattels of J N in
the dwelling-house of the said J. N., situate .'.. fdo.
nious ly did steal, take and carry away; one A. B. then, to
wit at the time of th. committing of the felony afore-
said being m the said dwelling-house, and therein by the
'"'^ (^^f^'^dant) by a certain menace and threat
■nm
■
'• 11
t ■ i
378
LARCENY.
then used by the said (defendant) then being put
in bodily fear, against the form —Archhold. (As
to value, see ante.)
Local description necessary in the indictment. — M. v.
Napper, 1 Moo. C. C. 44.
woollen,
woollen,
of such
material,
progress
guilty of
v., c 21,
STEALING IN MANUFACTORIES.
47. Every one who steals to the value of two dollars, any
linen, hempen or cotton yarn, or any goods or articles of silk,
linen, cotton, alpaca or mohair, or of any one or more
materials mixed with each other or mixed with any other
whilst laid, placed or exposed, during any stage, process or
of manufacture, in any building, field or other place, is
felony, and liable to fourteen years' imprisonment. — 32-33
8. 63. 24-25 v., c. 96, a. 62, Imp.
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 Lhe simple larceny
only. — Archhold, 407.
Goods remain in " a stage, process or progress of manu-
facture," though the texture be complete, if they be not
yet brought into a condition fit for sale. — R. v. Woodhead,
1 M. ikRoh. 549. See R. v. Hugill, 2 Russ. 517; R,
v. Bixon, R. & R. 53.
Upon the trial of any offence mentioned in this section,
the jury may, under sect. 183 of the Procedure Act, con-
vict the prisoner of an attempt to commit the same.— 2
Ru88. 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. K, 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,
LARCENY.
379
against the form of the statute in such case made and pro-
vided. (Other counts may he added, stating thv partieular
process and progress of manufacture in which the goods
were when stolen.)— ArchhoJd.
48. Every one who. having been intrusted for the 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, hnen, fustian, cotton, iron, leather, fur, hemp, flax or silk,
or any such materials mixed with one another, or having been so
mtruated, as aforesaid, with any other article, materials, fabric or
thmg, or with any tools or apparatus for manufacturing the same,
sells, pawns, purloins, secretes, embezzles, exchanges or otherwise
fraudulently disposes of the same, or any part thereof, when the
offence is not within the next preceding section, is guilty of a mis-
demeanor, and liable to imprisonment for anv term less than two
years.— 32-33 V., c. 21, s. 64. 6-7 V., c. 40, s. 2, Imp.
STEALING FKOM SHIPS, WHARVES, ETC.
49. Every one who steals any goods or merchandise in any vessel
barge or boat of any description whatsoever, in any haven or in any
port of entry or discharge, or upon any navigable river or canal, or
in any creek or basin belonging to or communicating with any such
haven, port, river or canal, or steals any goods or merchandise from
any dock, wharf or quay, adjacent to any such haven, port, river,
canal, creek or basin, is guilty of felony, and liable to fourteen years'
impri8onnient.-32-33 V., c. 21, s, 65. 24-25 F., c. 96, s. 63, Imp,
Indictment for stealing from a vessel on a navigable
'^^^^^ o» twenty pounds weight of indigo
of the goods and merchandise of J. N., then being in a
certain ship called the Rattler upon the navigable river
Thames, in the said ship, feloniously did steal, take and
carry away, against the form —Archhold.
Indictment for stealing from a dock— on
twenty pounds weight of indigo of the goods and
merchandise 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 —Archhold,
"11
V I
li.
I;: '
I! f
111
II I" in
i-
380
LARCENY,
The value is immatenal, 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. — Archhold.
The construction of the repealed statute was generally
confined to such goods and merchandise as are usually
lodged in ships, or on wharves or quays ; and therefore
where Grimes 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 made
current by proclamation, but commonly current; it was
ruled not to be within the statute. — R. v. Orimes, Fost.
79 ; R. V. Leigh, 1 Leach, 52. The same may be said of
the present statute, by reason of the substitution of the
. words " goods and merchandise " for the ^\ ords " chattel,
money or valuable security " which are used in other
parts of the Act." — Archbold.
It would not be sufficient, in an indictment for stealincr
goods from any vessel on a certain navigable river to
prove in evidence that the vessel was aground in a dock
in a creek of the river, unless the indictment were
amended. — R. v. Pike, 1 Leach, 317. The words of the
statute are " in any vessel," and it is therefore immaterial
whether the defendant succeeded in taking the goods
from the ship or not, if there was a sufficient asportation
in the ship to constitute larceny. — 3 Burn, 254.
The word? of the statute are " from the dock," so that,
upon an indictment for stealing from a dock, wharf, etc.,
a mere removal will not suffice ; there must be an
actual removal from the dock, etc. — Arckuold, 409.
A man cannot be guilty of this offence in his own
ship. — R. v. Madox, R. S R, 92 ; but see It. v. Bowden,
LARCENY.
381
2 Moo, a a 285. And now, sect. 4. ante, would apply
to such a case, being larceny by a bailee.
The luggage of a passenger going by steamer is within
the statute. The prisoners were indicted for stealing
a portmanteau, two coats and various other articles, in a
vessel, upon the navigable Kiver Thames, The property
in question was the luggage of a passenger going on board
the Columbian steamer from London to Hamburg ; and it
was held that the object of the statute was to 'protect
things on board a ship, and that the luggage of a passen-
ger came within the general description of goods ~R v
Wright, 7 as P. 159, g • ^. v.
Upon an indictment for any offence mentioned in this
section, the jury may convict of an attempt to commit the
same, under sec. 183 of the Procedure Act if the evidence
warrants it.-— 2 Muss. 381.
STEALING THINGS UNDER SEIZURE.
60. Every one who, whether pretending to be the owner or not
secretly or openly, and whether with or without force or violence*
takes or carries away, or causes to be taken or carried away, without
lawful authority, any property under lawful seizure and detention
steals such property, and is guilty of felony and liable to be punished
accordingly .-43 V., c. 28, s. 66, part. 46 V., c.n,s 67 C S r
c. 23, «. 10. ■ ^ ^' ^••
This is a new enactment. It is an extension of statutes
relating to Indians and to timber seized by Crown officers
-At common law, a man may be guilty of larceny by
takmg his own goods in custodid legis.—2 Bishop Cr
Proc. 749. ^' '
STEALING OR EMBEZZLEMENT BY CLERKS OR SERVANTS OR
PERSONS IN THE PUBLIC SEHVIOE.
61. Every one who, being a clerk or servant, or being employed
for the purpose or in the capacity of a clerk or servant, steals Ly
mi-
>
m
382
LARCENY.
Ij
w
y
'Ifll
i
^n
h
chattel, money or valuable security belonging to or in the possession
or power of his master or employer, is guilty of felony, and liable to
fourteen years' imprisonment. — 32-33 F., c. 21, «. 69. 24-25 F., c. 96,
«. 67, Imp.
As to what is a " valuable security," see, ante, sect. 2,
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 forty dollars, ten yards of
linen cloth, and one hat, of and belonging to the said J.
K., his master, 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 Lady the Queen,
her crown and dignity. — Archhold.
If the defendant is not shown to be the clerk or ser-
vant of J. N. but a larceny is proved, he may be con-
victed of the larceny merely. — Archhold, 348 ; R. y.
Jennings, Dears. & B, 447. It is not necessary by the
statute that the goods stolen should be the property of
the master ; the words of the statute are, belonging to, or
in the possession or power of the master. A second
count stating the goods "then being in the possession
and power " of the master may be added. If it appear
that the money, etc., was received by the clerk for
and on account of his master, and was not received
into the possession of the master otherwise than by the
actual possession of the clerk so as not to amount to larceny
but to embezzlement, the defendant is nevertheless not
entitled to be acquitted, but the jury may return as their
verdict that the defendant was not guilty of larceny, but
was guilty of embezzlement and thereupon he shall be
liable to be punished in the same manner as if he had
been convicted on an indictment for embezzlement ; but
LARCENY.
383
he cannot be afterward' prosecuted for embezzlement on
the same facts. Sec. 195 Procedure Act.
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 sec. 183 of the Pro-
cedure Act.
As to what is sufficient evidence of an attempt to steal
see E. V. Gheeaeman, L. S C. 140. '
On an indictment for larceny as servants, the evidence
showed that the complainant advanced money to the pria-
oners to buy rags, which they were to sell to the complain-
ant at a certain price, their profit to consist in the differ-
ence between the rate they could buy the rags, and this
fixed price. The prisoners consumed the money in drinks
and bought no rags : Held, no larceny.— iJ. y. Charest, 9
X. i^. 114.
62. Every one who, being a clerk or servant, or being employed
for the purpose or in the capacity of a clerk or servant, fraudulently
embezzles any chattel, money or valuable security, or any part thereof
delivered to or received or taken into possession by him, for or in the
name or on the account of his «,aster or employer, feloniously steals
the same from his master or employer, although such chattel, money
or security was not received into the possession of such master or
employer, otherwise than by the actual possession of his clerk
servant or other person so employed, and is liable to fourteen years'
imprison ment.-32-33 V., c. 21, s. 70. 24-25 V., c. 96, *. 68, Imp.
See sec. 195 of Procedure Act, and R. v. De Banks 15
Cox, 450.
It was the prisoner's duty as a country traveller to
collect moneys and remit them at once to his employers.
On the 18th of April, he received money in county. On the
19th and 20th, he wrote to his employers not mentioning
that he had received the money ; on the 21st, by another
letter, he gave them to understand that he had not received
\m
'
^ fri
p.
E T
384
LARCENT.
the money. The letters were posted in county Y. and
received in county M. Held, that the prisoner might he
tried in county M. for the offence of embezzling the money.
—-E. V. Rogers, 14 Cox, 22.
Embezzlement is the appropriation to his own use by a
servant or clerk of money or chattels received by him for
or on account of his master or employer. Embezzlement
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 is. The dis-
tinctions between larceny and embezzlement are often
extremely nice and subtle ; and it is sometimes difficult to
say under which head the offence ranges.
Greaves says : " The words of the for^ner enactments
were "shall hy virtue of such employment receive or
take into his possession any chattel, etc., for, or in the
name, or on the account of his master." In the present
clause, the words " by virtue of such employment " are
advisedly omitted in order to enlarge the enactment, aud
get rid of the decisions on the former enactments. The
clause is so framed as to include every case where any
chattel, etc., 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 within the statute,
though it was neither his duty to receive it, nor had he
authority to do so; and it is perfectly 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 in my house or in my
cart. And the effect of this clause is to make the posses-
sion of the servant the possession of the master wherever
any property comes into his possession within the terms of
tAnCENY,
385
thi, clauae, m «, to make him Ruilty „f embezzleraont if
ho convens « to hie own ..e. The cases of H. v. Sno,.i^,
Ji- * iJ. 80, mi similar cases are consequently no authorl
.t,es on this clause. It is clear that the omiLon „f Z
words in questmu, and the change in the terms in ■ L
clause .^nder it no longer necessary to pmve that the
property was received by the defendant by virtue of hi!
employment; in other woi* that it is no lon<.er necessarv
to prove that the defendant had authority to ro^efveT ^
Greaves adds : Mi. Davis says » still it must be the"'™';,
ters money which ,s received by the servant, and not
money wrongfully received by the servant by means of
false pretences or otherwise:" this is plainly incorrect
As servant goes to B.. who owes A. rflo, Ld falsely
states that A. has sent him for the money, whereupon B
pays him the money This case is clearly within the cVause '■
for tlie money IS dehvered 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 oategor es of the clause, and if it came within anv one
It would suffice ; m fact, no case can be put where property
IS dehvered to a servant for his master that does not come
within the clause, and it is perfectly immaterial what th!
moving cause of the delivery was._Crea.«, Com. A J
J. Do, '
In larceny a wrongful taking is essential, whilst in em-
bezzlement the offence consi.sts in some actual fraudulent
appropriation of that which is not unlawfully in the
TxTnil '^' ''^'''^'''-(^r. Law Com, UhRep. LV,
By sect. 195 of the Procedure Act, it would seem that
ill
ball
Y>
m
hi
'£1
.1 'Mi
I
386
LARCENY.
the distinction, often so ditncult to establish, between lar-
ceny and embezzlement, 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 versa. But praptically. this dis-
tinction has still to be made, as the jury must specify by
their verdict, of which special offence they find the defen-
dant guilty; and, if, for instance, upon an indictment fur
larceny, the jury return a general verdict of guilty, whuu
the evidence proves an embezzlement and not a larceny,
the conviction will be illegal.— i2. v. Oorbutt, Dears. <i'
B. 166 ; R. V. Belts, Bell, 0. C. 90 ; Broom's Comment.
973 ; Stephens Cr. L XL. See Rndg(h Case, 13 Cox, 17.
Indictment— ThQ Jurors for Our Lady the Queen upun
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 possession 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 felo-
niously did embezzle ; and so the jurors aforesaid upon
*heir 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 embez-
zlement within the period of six months against the same
master, the same, not exceeding three in number, may 1)0
charged in the same indictment in separate counts, (s. Ill
of Procedure Act,) 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
LARCENY.
387
time of the committing of the «aid offence in the fJrst counf
of tins uulictment charged ar.d stated, to wit ''„ '^' '^""^
said A. J., did then, and whilst he was so employed as la«f
aforesaid, receive and take into his possession
oth- -oy to a h^rge an.un, to witf rt^lZttf
.........for and in the name and on the account of the said
A. li.. Ins said master, and the said last mention./
tl-yu.d within tl. said six calendar :1:C^',::2
and feloniously did embezzle ; and so the jurors afo^^^^^^^^^^^^
upon their oath aforesaid, do say. that the 'said J fZn
in manner and form aforesaid, the said monev th '
of the said A n h;. -i ' ^'^ '"°"6y> the property
01 tne sa a A B., his said master, from the said A B hi*;
said master feloniously did steal. U.ke and cart a'^
a^'ainst the form . /A^r/ c^ ^ , . ^ away.
The iudictmeut must .how by express ^ords that the
different sums were eratezzled within the six ,„„„?,
61 .-It waa the duty of the defeudanTani-fit „fd
colle tor of a coal dub, to receive payment, by Jan
week y .nata ments, and to send in weekly a c Ir "
Tuesdays, and on each Tuesday tn r.a.r t-u ^''"""'^s on
»ceivod into the ban,, to tl^t o' (h^m:?;"'
dant was a shareholder and oo-p.rtner in t e s'ocfe 1 1"^'
-udictcdassuch; U>e indictment charged iL wTv h
different acts of embezzlement durinfsix men's t"h
amount as charged was proved by the'di,r:reTt* m ^u
ofamu ersums, making altogether each amount dfald
m t at the indictment might properly ohar^^tt:
embezzlement of a gross sun. and be pLed by evil
of 3.aaller sums received at different time, bv the Z
^i that it was not necessary to chargnie ^eltSS
n
I
H
388
LARCENY.
of each particular aura composing the gross sum, and that,
although the evidence might show a large number of small
8u:.iS embezzled, the prosecution was not to be confined to
the proof of three of such small sums only, — R. v. Balls,
12 Cox, 96 ; R. v. Fumeaiix, R.SR.S25;R. v. Flower,
8 B. <& R. 512 ; R. y. Tyers, R. & R. 402, holding it
necessary in all cases of embezzlement to state specifically
in the indictment some article embezzled, are not now law,
as now by sec. Ill of the Procedure Act it is sufficient to
allege the embezzlement to be of money, without specifying
any particular 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 the property, is sustained by
proof that the offender embezzled any amount, although
the particular 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 delivering the same, or to some
other person, and such part shall have been returned accord-
ingly; but an indictment for embezzling money is not
proved by showing merely that the prisoner embezzled a
cheque without evidence that tlie cheque had been con-
verted into money. — R. v. Keena, 11 Cox, 123. The
indictment must allege the goods embezzled to be the pro-
perty of the master, R. v. McGregor, 3 B. <$; P. 106,
M.i&'R. 23 J R. v. Beacall, 1 Moo. C.C. 15 ; and it has been
said that it must show that the defendant was servant at
the time. — R. v. Somerton, 7 B. d; C. 463. See, however,
LARCENY,
as9
trlfT ■::l
R. V. Lovell, 2 M. <k Rob. 236. It is usual and prudent to
state that the defendant /eWi^maii/ did embezzle, but it
IS not absolutely necessary, if the conclusion state that ha
feloniously stole.-i2. v. CHghton, R. & JR. 62. It is not
necessary to state from whom the money was received.—
R. V. Beacall, 1 0. d; P. 454 ; and note in R. v. Crighton,
R. & n. 62. But the judge may order a particular of the
charge to be furnished to the prisoner.-i2. v. Bootyman.
bC.&P. 300; i2. V. Hodgson, ZG.&P. ^22— Archbold.
A female servant is within the meaning of the Act —H
V. SmUh, R & ^. 267 ; so is an apprentice though under
age. R. V. MelliMh, R. dh R. 80 ; and any clerk or servant,
wnether to person in trade or otherwise.— i?. v. Squire, R
& R. 349; a. V. Townsend, . Den. 167 ; R. v. Adey, 1
Den. 571. A clerk of a savings bank, though elected by
the managers, was held to be properly described as c^erk
to the trustees.— i2. v. Jenson, 1 Moo. G. C. 434. The mode
by which the defendant is remunerated for his services is
iramateridl. and now, if he has a share or is a co-partner
m the society whose monies or chattels he embezzled, he
may be indicted as if he was not such shareholder or 'co-
partner ; sect. 58, po8t.~R. v. Hartley, i2. <fc iJ. 139 • Jt
v. Macdonald, L. cfc a 85 ; R. v. Balls, 12 Cox, 96. ' So*
where the defendant was employed as a traveUer 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
withm the meaning of the Act.— i2. v. Garr, R.<fhR 198 ;
K V. Hoggins, R. & R, 145; M. v. Tite, L. <£; C. 29 ; 8
Cox, 458. Where the prisoner was employed bv the pros-
ecutors as their agent for the sale of coals on commission,
and to collect monies in connection with his orders, but he
B
;,.;^
1 1
i I
390
LARCENY.
•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
statute. — B. v. Boivers, 10 Cox, 254. In delivering judg-
ment 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. v. Walker, Dears, <k R. 600 ;
R. V. May, L.&C. 13 ; R. v. Hall, 13 Cox, 49. 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
from 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. — R. v. Mayle, 11 Cox,
150. The prisoner was employed by a coal merchant imder
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 embezzlement. — R, v. Marshall, 11 Cox, 490.
LARCENY.
391
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 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 the 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 embezzle-
ment.-ii:. v. Dvcon, il Cox, 178. The prisoner agreed
With the prosecutor, a manufacturer of earthenware, to act
as his tmveUer, and "diligently employ himself in going
from tuvvn to town, in England, Ireland and Scotland, and
soliciting orders for the printed and decorated earthenware
manufactured hy the prosecutor, 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 himself
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
prisoner written permission to take orders for two other
manufacturers. The prisoner b( ing indicted for embezzle-
ment: Held, that he was a cl. k or servant of the pros-
ecutor within the meaning of the statute.— ii!. v. 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 commission,' 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
Cfc
u;
\\
i,
j
392
LARCENY.
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 person employing has
no control over the person employed ; in the second case,
the person employed is subject to the control of the
eni]>loyer. And on this, this case was distinguished from
B. V. Bowers, and B. v. Marshall, swpra. So, in B. v.
Bailey, 12 Cox, 56, the prisoner was employed as traveller
to solic't orders, and collect the moneys due on the execu-
tion of the orders, and to pay over moneys on the evening
of the day when collected, or the day following. The pris-
soner had no salary but was paid by commission. The
prisoner 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." See B> v.
Foulkes, 13 Cox, 63.
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 person : 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. — B. v. Negus, 12 Cox, 492; B. v. Hall, 13
Cox, 49 ; B. v. Coley, 16 Cox, 227.
I'risoner was employed by 0. 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
LARCENY.
893
manure for P. Notwithstanding this, prisoner took the
manure, and received £4 for the freight, which he ap-
propriated to his own use. It was not proved that he
carried the manure, or received the freight for his master,
and the person who paid the £4 did not know for whom
It was paid : Held, that the prisoner could not be convicted
of embezzlement, as the money was not received by him
m the name, or for, or on account of his master._i2 v
Cullum, 12 Cox, 469. See M. v. Oale, 13 Cox, 340.
It is not necessary that the employment should be per-
manent; 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 received and
embezzled, he was holdeu to be a servant within the
meaning of the Act.— i2. v. Spencer, R. <fe M. 299 ; B. v.
Smith, R. & R. 516. And in R. v. Hughes, 1 Moo. C. G. 370,'
where a drover, who was employed to drive two 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 contrary opinion, and R. v. Ifettleton 1
Moo. C a 259 ; R. v. Burton, IMoo. C.C 237, appear t«'be
adverse to R.y. Hughes. See R. v. Tongue, Bell 289 ; iJ v
Hall, 1 Moo. C.C. 374 ; R. v. Miller, 2 Moo. C.C. 249 • R y
Proud, L.<S;C, 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 my
over the balance on such accounting when required, but
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394
LARCENY.
was not paid for his services, is not a clerk or servant, and
cannot be indicted for embezzlement of such balance. — R.
V. Tyrie, 1 1 Gox, 24 1. And before the statute makins: it
larceny or embezzlement for a partner to steal or embezzle
any of the co-partnership property, the secretary of a
friendly society, and himself a member of it, could not be
convicted on an indictment for embezzling the society's
monies, laying the property in, and describing him as the
servant of A. B. (another member of the society) and
others, because the " others " would have comprised himself,
and so the indictment would in fact have charged him with
embezzling his own money, as his own servant — R. v.
Diprose, 11 Cox, 185 ; R. v. Taffs, 4 Cox, 169 ; R. v. Bren.
L. & C. 346. But a stealing or embezzlement by a partner
is now provided for by sec. 58, fost.
The trustees of a benefit building society borrowed
money for the purpose of their society on their 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 embez-
zlement of the property of W". and others, W. being one of
the trustees, and a member of the society. — R. v. Bedford,
11 Cox, 367. A person cannot be convicted of embezzle-
ment as clerk or servant to a society, which, in consequence
of administering an unlawful oath to its members, is unlaw-
ful, and prohibited by law. — R. v. Hunt, 8 C. <& F. 642.
But an unregistered 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. Eules in a trades
union or society imposing fines upon members for working
beyond certain hours, or for applying for work at a firm
where there is no vacancy, or for taking a person into a
LARCENY.
395
shop to learn weaving where no vacant loom exists, though
void as being iu restraint of trade, do not render the society
criminally responsible.— i2. v. /Sftoiner, 11 Cox, 483. If
the clerk of several partners embezzle the private money
of one of them, it is an embezzlement within the Act, for
he is a servant of each. So where a traveller is employed
by several persons and paid wages, to receive money, he
is the individual servant of each R. v. Carr, R. & R. 198 ;
R. V. Batty, 2 Moo. C. G. 237 ; R. v. Leach, Archbold, 450.
So a coachman, employed by one proprietor of a coach to
drive a certain part of the journey, and to receive money
and hand it over to him, may be charged with embezzling
the money of that proprietor, though the money, when
received, would belong to him and his partners.— iJ. v.
White, 2 Moo. 91.
In R. v. Glover, L. & C. 466, it was held that a county
court bailiff, who has fraudulently misappropriated the
proceed?, of levies, made under county court process, can-
not be indicted for embezzling the monies of the high-bailiff,
his master ; these monies are not the property of the high
bailiff. A distraining broker employed exclusively by the
prosecutor, and paid by a weekly salary and by a commis-
sion, is a servant within the statute.— i2. v. 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 man-
aging clerk, who knew them through repute alone, having
been informed of them by his employer, it was held that
there was no evidence to go to the jury that the prisoner
was servant to the prosecutor.— iJ. v. Taylor, 10 Cox 544,
Money received by '^e defendant from his master him-
self, for the purpose of paying it to a third person, is not
'-\ \\
396
LABCZNT,
within the embezzlement section ; it is larceny. — R. v.
Peck, 2 Ru88. 449 ; M. v. Smith, R. & R. 267 ; R. v. Haw.,
kins, 1 Den. 584; R. v. Ooodenmigh, Dears. 210. The
principle in these and the following caset*, is that in law,
the possession by the servant is possession by the master,
and that the master who places money in his servant's
hands for paying bills, etc., does not loose the possession
of his money ; so, that the servant, in fraudulently mis-
appropriating this money, takes it wrongful!} , in law,
in his master's possession, inde, commits larceny, not em-
bezzlement. And the principle is the same, when money
is constructively in the possession of the master by the
hands of any other clerk or servant. — R. v. Murray, 1
Moo. a a 276; R. v. Watts, 2 Den. 15; R. y. Re^.
Dears. 168-257.
So, where the defendant's duty was to place every night
in an iron safe, provided by his employer for that purpose, in
an office where he conducted the business of his employer,
though in his own house, the monies received by him on
his employer's account and not used during the day, it was
held that by placing it there, he determined his own ex-
clusive possession of the money, and that, by after^vards
taking some of it out of the safe, animo furandi, he was
guilty of larceny.— i2. v. Wright, Dears. <fe 5. 431. The
fraudulent appropriation of money, which has never been
in the master's own possession, and wiiich the defendant
has received from a fellow-servant to give to his master, is
embezzlement.— i2. v. Masters, 1 Den. 332. Oreaves, note
d, 2 Russ. 450, thinks this is a wrong decision. Where
the master gave a stranger some marked money, for the
purpose of purchasing goods from the master's shopman,
in order to try the shopman's fidelity ; the stranger bought
the goods, and the shopman embezzled the money, the
LARCENY.
397
judges held this to be a case within the Act.— i2. v. Headge,
R. <k R. 160 ; iJ. V. QUI, Dears. 289. Where the defendant's
duty was to sell his master's goods, entering the sales in
a book, and settling account with his master weekly, and
upon such a sale the defendant fraudulenty 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 .—i2. v. Betts, Bell, G. C. 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 transaction, 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. V. Hoggins, R. db R, 145.
But where it appeared that the defendant was employed
as a town traveller and collector, to receive orders from
customers, and enter them in the )ks and receive the
money for the goods supplied thereon, but had no autho-
rity 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 was 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 received the price of both,
and accounted to the prosecutor only for the former; this
was held not to be embezzlement but larceny.— iJ. v. Wil.
Ill
I -'ill
i V\
398
LARCENY.
son, 9 C. & P. 27. The prisoner, as foreman, by fraudu-
lently misrepresenting that twenty-one poun Is, eighluon
shillings was due for wages to the men under him, obtain-
ed thn*: 5?nm from his master's cashier. On the pay-sheet
made u"^ by the prisoner, one pound ten shillings ond
four pence was set down as due to W., whereas only one
pound, eight shillings was due, and that amount only was
paid by prisoner to W. out of the twenty-one pounds,
eighteen sliillings ; the excess, two shillings and four pence,
■was appropriate!', oaL of Uie 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. — R. v. Cooke, 12 Cox, 10. See R. v. Beaumont,
Dears. 270 ; R. v. Thorp, Dears. &B. 262 ; R. v. Harris
Dears. 344; R. v. Sullens, 1 Moo. G. G. 129. A correct
entry of money received in one book out of several is not
answer to a charge of embezzlement, where the prisoner
has actually appropriated the money. — R. v. Lister, Dears.
& B. 118.
The usual presumptive evidence of embezzlement is that
the defendant never accounted with his master for the
money, etc., 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. — jR. v. Z hter,
supra. Greaves says, note n, 2 Rusa. 455 : " A fallacy
is perpetually put forward in cases of embezzlement ; the
offence consists in the conversion 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 would only, at
LARCENY
399
most, amount to evidence tliat he did not, when he nmde
thorn, intend to convert the money; and yet he might have
converted it before, or might do so afterwards. If he were
proved to have converted it bc.fore he made the entries,
the offence would be oompiete, and no entry afterwords
made could alter it. So, on the other hand, if he made uo
entries or false entries but actually paid the money to his
master, he would be innocent." See M. v. Guelder Bell
284, and Brett's, J., remarks in M. v. Walstenholme, 11 Cox
313 ; E. V. Jackson, 1 C. & K. 384. The fact of not pay-
ing over monies received by a servant is proof of embez-
zlement, 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 to have been done fraudulently.— ii v
Welch, 1 Den. 199 ; R. v. Worthy, 2 Den. 333.
In R. V. Grove, 1 Moo. O. C. 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. v. Lambert,
2 Cox, 309 ; R. v. Moah, Dears. 626. But in R y'
Jone., B C. &P. 288. where, upon an indictment* for
embezzlement, it was opened that proof of a general
deficiency in the nrisoner's accounts would be given but
none of the appropriation of a s] cific sum, Anderson', B
said: "Whatever difference of ninion there might be in
R. v. Grove, (uU 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
iu 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
I. ■
ILII
400
LARCENY.
R. V. Chapman, \ C. ii K. 119, 2 iiuw. 460. and i2. v.
Wolatenholme, 11 Coa, 313.
A conductor of a tramway car was charged with
embezzling three shillings. It was proved that on a
certain journey there were fifteen threepenny fares, and
twenty-five twopenny fares, and the conductor was 8(ion
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 fares 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 prisontn's
money should have been £3 Is. 9d., according to his way
bills for the day, but he paid in only £3 Os. 8d. 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 embezzlement of three
shillings, part thereof.— ii. v. 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 be put
to his election, and must confine himself to one sum and
one day. — R, v. Williama, % G. <k P. 626.
The prisoner, not having been in the employment of the
prosecutor, was sent by him to one Milner with a horse aa
to which Milner and the prosecutor, who owned the horse,
had had some negotiations, with an order to Milner to give
the bearer a cheque if the horse suited. On account of a
difference as to the price the horse was not taken and the
prisoner brought him back. Afterwards the prisoner,
without any authority from the owner, took the horse to
LARCENY.
401
giving a ™iipe in'r:::!;!""" """"■" """ -°■"'^'
did not receive it a, . ,„„«Dt or dSZtlulT'^'
« his own and «<»ived the monfyt hU „t ut rf
«««» V. Topple. iR.Jio. (AT, /) 566 ~ '"
-z:;::SX:rf:r;„TtS:''J"'^^^^
On a trial for embezzlement. Md, that evidence of
a general deficiency having been given th« n .•
was right, though it was notVovedS'; ^ ticTrt:
:::i::^erb;ir'".^^^" ^^ ^ paniruia::ta:i :
was embezzled by the pnsoner.-ij. y. (?^«, 1 X iVr 41
But a general deficiency alone i« not suffident rI'
Glass, Man^ay's App, Cos. 186-195. '''^''^''^'-^' ^•
of Canada, or of any munS r«T*? '°'"'^^*"^ P«'^'»««
valuable security belongTn.to^'f'f^'^ any ch^^tel, „,oney or
Majesty, or of «ucl. Lieuf na„t Gove^no T'''""° "' '^'''' '' «"
or intrusted to or received or Lke„"^' govern.nentor municipality,
Of his employment, i« guill^ offl'^^TS^^^^ '^ ^'^^"^
imprisonment.^,2-33 '.. /2I, ^71/2: 25 F c 96 ^69? '""'
M-e^^T^^rje'l^intf^^^^^^^^^^^^
in Canada, or of any municiD^hlv ..'r^. T*'"^*'^*"^ ^'•*^^'»««
en^ploy-nent, with LZZTcmX "mal ' '\""'^"^ ^' ^^^'^
any chattel, money or valu'aLle Sty? eS^ T ''T ''
n>oney or valuable security, intrusted to or tSfnt^"'' "^"'''''
by him by virtue of his employment or Ll * u P^«^««'«"
any manner fraudulently apXTril^n.^/^ ^'^"^o'- or in
P-thereof,tohiso.nueeSr^.efit.t;r:ny"p;t^^^^^^^
BB
,.4.;
402
LARCENY.
except for the pnblic aerrice, or for the aervioe of Buch Lieutenant
Governor, government or municipality, feloniously steals the same
from Her Majesty, or from such municipality, and is liable to fourteen
years' impri8onment.-32-33 V., c 21, *• 72, pari. 24-25 V.,c. 96, ,.
70, Imp.
55. Every one who, being employed in the public service of Her
Maiesty,orof the LieutenantGovemor, or government of any Province
of Canada, or of any municipality, and intrusted by virtue of such
employment with the keeping, receipt, custody, management or
control of any chattel, money, valuable security, book, paper, account
or document, refuses or fails to deliver up the same to any one
fcathorized to demand it, is guilty of a fraudulent embezzlement
thereof, and liable to fourteen years' imprisonment ;
2. Nothing herein shall affect any remedy of Her Majesty, of the
municipality, or of any person against the offender or his sureties, or
any other person, nor shall the conviction of such offender be receivable
in evidence in any suitor action against him.— 41 V.,c. 7. *. n,part.
C. &. C. c. 18, s. 40, part. 29-30 V. (Can.)» c. 61, «. 157, part.
See sec. 16 of Procedure Act, post, for venue in cases
under the three preceding sections.
Where the registrar and treasurer of the late Trinity
House was charged with embezzling a portion of the fund
known as " The Decayed Pilots Fund." Held, that this
was an embezzlement of moneys the property of *' Our
Lady the Queen." — K v. David, 17 L. C. J. 310.
(under sec. 54 of the Larceny Act.) See M. v. Graham,
13 Cox, 57.
These clauses have the effect of extending sections 51
and 52, as to larceny and embezzlement by clerks or
servants, to public and municipal officers, and the remarks
under the said sections, ante, may be applied here.
Indictment under sect. 53. — 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 Bum, 319.
LABCBXY.
403
Indictment under see. 54 _
.........being employed in fK« •••••....on ^t
Majesty, and bejg elated V^^«7"» "^ Her
meat, with the receipt^ eustodv^. * ""P'o^-
of a certain vd^Ue Monnty .^'^T"*^"^"' ^'"' ^-W
there, whilst he was so emnkvad I V V.*'' *» a»d
take into hia P<«sessi„rKd v^^Tm "' '^"^'» »■»
the said valuable seeuritv 11 f ^ ? ' °*™"'y' ««<'
ously did embezzle. Id^^i!" '"""""'^''y »d feloni.
oath afo,.said do say. ^1 ^^^/r^aid, np„„ thei,
and form aforesaid, the said'vaiuahl, "'^ '" ■"»»""
of Her Majesty, f^om Her M j^^" ^ "'^' f" ^'"^^^
the appointment need not h„ '^'^, ? "><iictment; and
Proof of a gene»I defil' J' 'j *'"^'*' « « <* ^. 12i.
»ot be suiheient; the SemeTof """" ""•"""'
would have to be proved ZT * 'P'"'*" ™m
See. 126 of the I-Zdu^ 1?'" ''"'^" ''"• «2.
-0 the form of indi.m„.. ^Z7^l^ ^Z"^^
counsels or aasiste in so «teftling or teE / "^' *""^ ^^•'"^' *>«• aids.
return to a writ of election, oTanvTn J V ^ """^ of election, or any
cerfiicate, affidavit or report ora„t^"' ^"-^^' ^«*««' Ust^
pared or drawn out accord;;' Z iVrre'"" " ^^^ ^-'^^' P-
'"--^pro.neia,.„Lpr;i:^x;;rs:^^^
r
1
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' ?
fR'flw
.1
H
: 1
i
; i
I
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jj;
m^
^B
■
■^^m
^^^^H
^
I
u m
404
LARCENY.
felony, and liabl: to a fine, in the discretion of the court or to seven
yeara' imprisonment, or to both fine and ,mpn8onment.-29-30 F.
TcZ), c. 61. s. 188. part B. S. B. C, c. 157. ss. 99 and 100, parts.
This clause does not apply to writs of election or
documents relating to elections for the Dominion Parha-
ment.
STEALING BY TENANTS OR LODGERS.
57. Every one who steals any chattel or fixture let to be used by
him, or her, in or with any house or lodging, whether the contract
has been entered into by him or her, or by her husband or by any
person on behalf of him or her or her husband, is guilty of felony
fnd liable to imprison.nent for any term less than two years, and ,f
the value of such chattel or fixture exceeds the «um of twenty-five
dollars, is liable to seven years' iniprieoQment-32-<J.S y., c. Zl, s. id,
part. 24-25 F., c 96, s. 74, Imp.
If the indictment be for stealing a chattel, it may be,
by sec 127 of the Procedure Act, 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 m
the owner or person letting to hire. If the indictment be
for stealing a fixture, use form under sec. 17, ante, and
describe the dwelling-house as that of the landlord, as in
burglary.— 3 Bum. 319.
There may be a conviction of an attempt to commit
any offence mentioned in this section, upon a trial for
that offence. Sec. 183 of the Procedure Act.
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 ; therefore the
landlord could not maintain trespass for taking the goods;
in consequence, the taking by the lodger was not felonious.
^Meere's Case, 2 Russ. 519 ; R. v. Belstead, R. & R. 411.
Hence, the statutory enactments on the subject.
tABCKNT.
STBAUNO BY ?ABTN>IBS.
406
owner, of any moner oTolL ™ £ . ° °' '"°" '»»efloial
fully -nver JrZr ty^TriL^^* .7^-'" " "■"»-
any person other ,l,an the ownVi, S.1 k Tr'°"^""'
con.ieted and pnniehed a, i°heh;inot t,n„ ""' ''"'' '"«>'
of each co-partnerehio oron.!.f „,„l,V. ;°',""° ""^ " """""x*
c. 21, ,. 38.'"3..32T;°nt. . Z •■ °'"™-'^-'3 I^-.
_ The Imperial clause reads as follows : •• If any persorr
being a member of any co-partnership, or beina one of ^^
or more beneficial owners of any money, gods or Icl
b.Ils, notes, securities, or other property shall stea oi
embezde any such money, goods or eifec s, biUs notes
seoun .es or other p«>perty, of or belonging to any such
co-partne^kp or to such joint beneficW Lne,^"'^^™^
such person sha^l be liable to be dealt with, triei I!Z
™ted and punished for the same as if such pe son had^ot
A partner stole goods belonging to the firm, and ren
e.d h.msel hable ^ be dealt with as a felon 'und rt
31-32 Vc. 16, sect. 1 (th^ present clame), and sold the
ff.i^, hat the prisoner could not be convicted on an indl^
ment for feloniously receiving, but might have beerclt
voted as an accessory after the fact on an inlltm^n
properly framed._ij. y. 8mith, 11 Cox, 511 ""'"'""^'''
An indictment framed upon the 31-32 V - lifi .
1, alleged that B. was a member of a c^-paCrtl I 2
s.t,„g of B and L.. and that B„ then bein'^Tmemin;
the same, eleven tegs of cot(»n waste, the p«,peTof thi
said co-partnership, feloniously did steal tltf ^
.way. ^eHthattheindictme^twastt ^LttrSS
1i!
406
LABCEHT.
ing the word " feloniously. "~R. v. Butkrworth, 12 Cox,
132. In this case, Oottingham, for the prisoner, said : " The
indictment is bad because it does not follow the words of
the statute. That enactment creates a new offence, one
which did not exist at common law ; it does not say that
the offence shall be a felony, and the indictment is bad for
using the word "feloniously." There are offences of steal-
ing, which are not felonious, 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 objection 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 busi-
ness 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, trading as
aforesaid ; and, thereupon, the said Thomas Butterworth,
at „.. aforesaid, during the continuance of the said
Go-paitnership, 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-partner-
ship feloniously did steal, take and carry away, against the
form of the statute in such case made and provided, and
against the per'w* c»f Our said Lady the Queen, her crown
and dignity.— jB. \, Buttenvorth, supra.
See M. v» Ball, 12 Cox, 96, for an indictment against a
partner for embeazlement of partnership property; also, R,
\, Blackburn, 11 Cooa, 157,
A partner, at common law, may be guilty of larceny of
the partnership'! property ; so may a man be guilty of lar-
UBoimr.
407
ceny of hi» own goods; B. v. Webster, L.&CIT. R ,
Burgees, L. <6 a 299 ; R v. Moody. L. * C. 173; of'oou;^'
that ^ when the property i, stolen from anothe; peraonT;
BovJU. J., opinion in «. v. Diproee, U Oox, 185
Upon an indictment for larceny, under this section the
prisoner may be found guilty of embezzlement. -i v.
Rvdge, 13 Cox, 17.
FRAUDS BY AGENTS. BANKERS OR FACTORS.
59. Every one who. being a cashier, assistant cashier, manaaer
:l";i:^orabsc:nr'rH' ^"\'*^> ^^ «*^-^^^« ^^zt:z:
embezzles or absconds with any bond, obligation, bill obligatory or
of credit, or other bill or note, or any security for money, or any
r.oney or effects intrusted to him as such cashier. assista„? cashier
manager officer, clerk or servant, whether the same belongs rthe
ban. or belongs to any person, bo^ corporate, society or institu'
t.on, and .a lodged wUh such bank, is guilty of fe'ony.'lnd liabt to
.mpnsonment for hfe or for any term not less than two years -34
v., c. 6. s. 60. andc. 7, s. 32. 24-25 V., c. 96. ,. 73, Tm/
60. Every one who, —
(a.) Having been intrusted, either solely or jointly with any other
person, as a banker merchant, br >ker. attorney or other agent wHh
any money or security for the payment of money, with any d L" ou
.nwrifng u> apply p«y or deliver such money or sec urify. or any
,«rt .hereof respectively, or tt»e proceeds or an v part of the ;roceed8
Of such security, for any purpose, or to any pe^soC specified 'nsul
direction, m violation of good faith and contrary to the terms oJ u h
direction .n anyw.se convert, to his own use or benefit, or the use
or benefit of any person other than the person by whom Le has beeu
Z':^y\ :rl "^"^'' '^"'^^ '' '''^'''" - -^ P- ^'-o?
(6.) Havin^^ been intrusted, either solely or jointly with any other
person, as a banker, merchant, broker, attorney or other arn^wth
any chattel or valuable security, or any power of attornerfor'ht
w r r !^rf *"f '^'^ "•• '"^'^^ '« »»J^ P'^Wic stock or fund
whetHer of he Un.tad Kingdom or any part thereof, or of Canada 1'
:"^r;, : ^sS;!''""?* " "' *"^^"^'^'^ «^'-^ - poases;:^^ ; z
any ..re.,, eu^te. or ,n any stock or fund of any body corfiorate
1?l
' "n
1
I'^il
f.
li
f '■
m
(^
W m,
408
LARCENY.
company or society, for safe custody or for any special purpose,
wilhout any authority to sell, negotiate, transfer or plcige, m viola-
tion 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 inanner 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 chattel or security,
or the proceeds of the same, or any part thereof, or the share or interest
in the stock or fund to which such power of attorney relates, or any
part thereof,—
Is guilty of a misdemeanor, and liable to seven years' imprison-
ment.
2. Nothing in this section contained relating to ageniB shall affect
any trustee in or under any instrument whatsoever, or any mortgagee
of any property, real or personal, in respect to any act done by auch
trustee Ar 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
cluable 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.-
32-33 v., c. 21, 8. 76. 24-25 F., e. 96, ». 76, Imp.
Greaves says : " The former enactments did not extend
to a direction to apply any security for the payment 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 if to pay or deliver a bill
of exchange or oth^r security to a particular person. The
words " or the use or benefit of any person other than the
person" are introduced to include cases where the banker,
etc., converts the property not to his own use, but to that
of some person other than the person employing him. If it
should be suggested that these words are too large, as thoy
mu^Lm^B'
'I'
LARCENY.
409
of the party intrusting the money to the banker, the an-
swer IS, that to bring a case within this clause, three thil
must concur; the property must be disposed of, first. Tn
violation of good faith; secondly, contmry to the term of
the direction ; thirdly, to the use of the banker or of ^me
one other than the party intrusting the banker, and conse-
quently no case where the banker obeys the direction of
the party intrusting him can come within the clause
By sec. 6 of the Procedure Act, no court of general or
quaiter sessions has power to try any offence under sects. '
oO to 76 of the Larceny Act. And by sec. 197, the defen-
is'provrd '''^'''''' '' """^^ ^ ^ ^''^''^^^' ^^^^^°«°y
Sub sec. 6 of sec. 60 applies only to persons whose
occupation IS similar to those specially enumerated in the
section, and does not include any oniinary agent who may
from time to time be entrusted with valuable securities.
E. V. Portugal, 16 Q. B. D. 487.
61. Eveijone who, being a banker, merchant, broker, attorney
or agent, and being intrusted, either solely or joint y J^^ranVothtr
person wUh the property of any other person for afe uet2 ^th
.ntent to de.raud. eelle. negotiates, transfers, pledges orTn ^y 07}^ r
manner converts or appropriates the same, or part ther^f I or for
.n?!;. ^'"*^ """ "'^^^ ^'"« '"*''»''**^' «''ther solely or jointly with
any other person, with any power of attornev for »>,/ . .
Of any property, fraudulentirsells or tran^^;^^^^
the same or any part thereof to his own u f «; Z^TTX '""'"'*'
benefit of any person other than tL Zon ^itt T "'* ""'
iotru^ted. is guilty of a misdemea o , Tnd iabrto Len "" ''
>.pn«onment-32-33 F.., c. 21. . 78. 4-25 F. ^Tt /.^
e
f
410
LABOSNT.
63. Every one wbo, being a factor, or agent intrusted, either solely
or jointly with any other person, for the purpose of sale or otherwise,
with the possession of any goods, or of any document or title to goods,
contrary to or without the authority of his princi|«l 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 borrowed or received by such factor or
agent at or before the time of making such consignment, deposit,
transfer or delivery, or intended to be thereaaer borrowed or received,
or contrary to or without such authority, 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, accepts any advance
of any money or valuable security on the faith of any contract or
agreement to consign, deposit, transfer or deliver any such goods or
document of title, is guilty of a misdemeanor, and liable to seven
years' imprisonment;
2 Every one 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 liable to the same punishment ;
3 No such factor or agent shall be liable to any prosecution for
consigning, depositing, transferring or delivering any such goods or
documents of title, if the same are not made a 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, was
justly due and owing to such agent from his principal, together with
the amount of anv bill of exchange drawn by or on acocunt of such
principal and accepted by such factor or agent.-32-33 V., c. 21, s. 79.
24-25 r., 0. 96, 8. 78, Imp.
64. Any factor or a<?ent intrusted, a« aforesaid, and possessed of
any such document of title, whether derived immediately from the
owner of such goods or obtained by reason of such factor or agent
having been intrusted with the posaessioo of the goods, or of any other
document of title thereto, shall be 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
LABCBNT.
4U
control, or for him. or "^n hisltaJf f a^S'T""" ""'J^'^* ^ ^i.
advance is 6o«4^rfe made to anw.^ '" '"^ '^*" «'
in possession or 4 -rg::j:^r:.^::--,;^^^^^^^^^^^^
of title is or are actually "eTeived bv t 1 '""^ «f"^' ^^'^ •^««»'"«"t
advance, without notice that lulf^ ^*"*'" '"*'''"« «««»» J«*» or
to n,aWe such pledged sit rit;'v,^^^^^^^^^^^^ -^^-i.ed
deemed to be a loan or advance on f I '^''*"''* '^*" ^
document Of title, within tt mtn^VoMretLT '' Z"" «^^'^ ^'
though such goods or document of tule are not * r.?"^'"^ ''""'"'
the person making such loan or advancrtUl a ^"j '"T"^ ^'
thereto; and any contract or agreeme^r whl ^"f «"^«^q«"*
.uch factor or agent or with aTZT Tk ^" '"**'* *^''*^«* ^^^h
shall bedeemed'a conZt or'a^lrwith ''Tr ^" ''^ ^^*''''
and any payment made, whethTT^ni; orWn'/r'^T "«"* '
other negotiable security, shall be deem^UoL \ «*«hange, or
n.eaning of the next p;ceding ^c "^, 1^ t" ^J^' -*'- the
possession, as aforesaid, ofsucLoodrnl ? *"' **' ^^ent in
for the purpose of the ^e^t r^^edCaec ionTr^' t*" '■' **'*^'''
therewith by the owner thereor u^C t; 1^ ^*" '"''"^^
eviaenoe.-32.«r.,c.21„.80. '2:1^^^! C'^^^C^^" ^'^
puUic or charitable purpos^ ^th' fn:'^:^^?!: V'''
appropriates the same, or any part thereof to ol^^t '*' °'
benefit or the use or benefit of .V^perlTotherTr T" ""* °'
.f<.resaid, or for any purpose oth'erTn s ch^^fcJieTr ^a^.r
purpose ae aforesaid, or otherwise dispose- of ortsLll « ' '
Frty or any part thereof, is auiltv of a ,JliZ ^ "''^' P*^
.even years' impri«onmen^ * ^ * '"'^^leweanor, and liable to
2. No proceeding or prosecution foranyofffence m«nW« ^ : ^,
section shall be commence without the ^ctTon 'f ? . ° *^''
general or solicitor general for the proviuce To w^kh the t '""'""^
be instituted ) ***^ ***^ ^*'"e is to
a
f
r
1,
1 '■
i-4
; ■'■■■J
LARCENT.
tl.t# flection without the sanction of the court or judge l)efore ^^ horn
Buoh civil proceeding has been had or is pendi. -32-33 V., c. i\, ».
81. 24-25 v., e. 96, ». 80, Imp.
66. Every one wliu, being a director, member, manager or officer
of any bodv corporate or company, fraudulently takes or applies, for
his own use or henefit, or for any use or purpose other than the use
or purpose of flucli body corporate or company, any of tiie proper y
of such body corporate or company is guilty of a misdemeanor, and
liable to seven years' imprisonment.— 32-33 V., c. 21, *. 82. 24-26
V.,c. 96, «. 81, Imp.
67. Every ore who, being a director, member, manager or officer
of any body corporate or company, as such receives or poseeases
himself of any of the property of such body corporate or company,
otherwise than in payment fa just debt or demand, and, with intent
to defraud, omits to make or to cause or direct to be mad( full and
true entry thereof in the books and accounts of such body )rporate
or company, is guilty of a misdemeanor, and liable to seven years'
imprisonment-32-33 V., c. 21, *. 83. 24-25 F., c 96, s. 82, Imp.
68. Every one who, being a director, manager, officer or member
of any body corporate or company, with intent to defraud, deetroys,
alters, mutilates or falsifies any book, paper, writing or valuable
security belonging to the body corporate or company, or makes or
concurs in the making of any false entry, or omits or concurs in
omitting any material particular in any book of account or docu-
ment, is guilty of a misdemeanor, and liable to seven years' impria-
pnment.-32-33 V., c. 21, 8. 84. 24-25 F., c. 96, s. 83, Imp.
69. Kvery one who, being a director, manager, officer or member
of any body corporate or company, makes, circulates or publishes, or
concurs in making, circulating or publishing any written statement
or account which he knows to be false in any material particular,
with intent to deceive or defraud any member, shareholder, or creditor
of such body corporate or company, or with intent to induce any
person to become a shareholder or partner therein, or to intrust or
advance any property to such body corporate or company, or to enter
into any security for the benefit thereof, is guilty of a misdemeanor,
bind liable to seven years' imprisonment.— 32-33 F., c. 21, a. 85. 24-25
F., c 96, 8. 84, Imp.
. 70. Every one who, being an officer or member of any uninoor-
toorated body or society, associated together for any lawful purpose,
fraudulently takes or applies to his own use or benefit, or for any use
LARCBUY.
413
or purpose other than the u«e or purpose of «uch body or .oci. tv th.
who e or any ,K>rtion of the funds, money, or oth.r p^Z^ o/ h!
society, and continues to withhold such ir .rjiy afCr V !
haa been n.ude f. r the rentorafon and p^yf.LroT the 1 ' ulT^
one or more of the memh*.r« «, ««? '^•^'" ,"'"' me ean., bye*, le
behalf of th. Jr-Tod^7ie.utrn? ''"'^ ?P°'"'^«* »'> -d on
t^ »K-« ^ sot-iety, 18 guilty of a misdemeanor, and iiuhU
Kot in the English Act.
/I. Nothing in any of the twdve sections next preceding shall
enat^e or entitle any person to refuse to make a fuuTnd coml t
discovery l.y answer to any bill in equity, or to answer any ouestion
or interrogatory in any civil proceeding in any court, ourn be
hearing of any matter in bankruptcy or insolvencv 1,7
e^beii^.e.>>..„.ia^ ,.^,^,,::::;:^^^
Ton bv 1 im ' .; ' r'^ ''"^'"'^ whatsoever, in respect of any act
done by h.m, ,f, at any time previously to his beingcharged with such
offence, he has first disclosed such act on oath.^ co'sequ nee of
any conipulsory process of any court of law or equity, .„ aT action
suit or proceeding Wytde instituted by any ^rty UgHeved oHf
he has first disclosed the ..me ... any cLpTor/ LI . . l„"or
depo.,.,on before any court, upon the hearing of any matter „ bank'
ru^^tcy or insolvency. -32-33 V., c. 21. ,. sl 24-26 V., c. %, ,85.
72. Nothing in the thirteen sections next preceding, nor any
proceed-ng, convictu>n or judgment 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 person aggrieved by any
offence against an, of the said sections wouTd have had irthfs Ac^
hadnot been pass«i , but no conviction of any such oier s a,^
r... ived in evidence m any action or suit against him ; and nothing
in he said sections contained shall aflfect or prejudice any agreement
en ered into, or security given by any trustee, having for fts o'b jecUhe
rpra 10,1 or payment Of any trust property m^^^^^^^^
y., c. zi, s. H7. 24-25 v., c. 96, s. 86, Imp.
73. Every one who,—
(a.) Being the keeper of any warehouse, or a forwarder, miller,
master of a vessel wharfinger, keeper of a cove, ya«l, harbor 0^
place for storing timber, deals, staves, boards or lumber, curer or
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LABGINT.
pftoker of pork, or dealer in wool, carrier, fkctor, agent or other person,
or a clerk or other person in bis employ, knowingly and wilfully
gives to any person a writing purporting to be a reoeipt for or an
Boknowledgment of any goods or other property as having been
received into his warehouse, vessel, cove, wharf or otiier place, or in
any such place about which he is employed^ wr in any other manner
received by him, or by the person in or about whose business he is
employed, before the goods or other property named in such receipt,
acknowledgment or writing have been actually delivered to or received
by him as aforeoaid, with intent to mislead, deceive, injure or defraud
any perscin whomsoever, although such persoB is then unknown to
him, or —
(b.) Knowingly and wilfully accepts, transmits or uses any such
false receipt or acknowledgment or writing, —
Is guilty of a misdemeanor, and liable to three years' in^prisonment.
—32-33 v., c. 21, a. 83. 34 F., c. 6, 8. 64,
Not ip. the English Act.
74. Every one who, —
(a.) Having, in his name, shipped or delivered to the keeper of any
warehouse, or to any other factor, agent or carrier, to be shipped or
carried, any merchandise, upon which the consignee has advanced
any money or given any valuable security, afterwards with intent to
deceive, ^ef^aud or injure such consignee, in violation of good faith,
and witliout the consent of such consignee, makes any disposition of
such merchandise different from and inconsistent with the agreement
made in that behalf between him and such consignee at the time of
or before such money was so advanced, or such negotiable security
so given, or —
(6.) Knowingly and wilfully acts and assists in making such
disposition for the purpose of deceiving, defrauding or injuring such
(Bonsignee, —
Is guilty of a misdemeanor, and liable to three years' imprison-
ment;
2. No person shall be subject to prosecution under this section who,
before making such disposition of the merchandise aforesaid, pays or
tenders to the consignee the full amount of any advance made thereon.
—32-33 v., c. 21, *. 89.
Not in the English Act.
LARCENY.
415
7S. Eveiy one who,~
wri.i„g. or.h. p^iuotion .nd 72° °„ 1 ^1°' '"„'•?"' '''
Not in the English Act
76. If any miedemeanor mentioned in any of th» ♦K,-. .•
next prec^Jing is committed by the doing of anything in Z °"''
Not in the English Act
By sec 197 of the Procedure Act. if upon the trial of
m person for any misdemeanor under secto. 60 to 76
toh ■nclns.ve. of the Urceny Act, it appears that the
offence proved Mnounts to lareeny. he shdl not by reason
xt-Lo v., c. 100, 8. 12, Imp.
W. deposited title deeds with D. as secnHhr for. ]„-
obtamed for W. a smn of money from T. and deliv;^ ^
her a mortgage deed as security. There were nolt^
t.onsm wnfngto the defendant to apply the money to
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ULECENY.
any purpose, and he was entrusted with the mortgage deed,
with authority to hand it over to T. on receipt of the
mortgage money, which was to be paid to D. and W., less
costs of preparing the deed. The defendant fraudulently
conveited a substantial part of the money to his own use ;
Eeld, that as there was no direction in writing, the defen-
dant was not guilty of a misdemeanor under sec. 75 of the
Larceny Act, sec. 60 of our statute; Held, also, that he was
not guilty under sect. 76, sec. 61 of our statute.— iJ. v.
Cooper, 12 Cox, 600. See R. v. OoWe, 2 Ruaa. 481 ; R.
V. Prince, 2 G. & P. 517 ; R. v. WhUe, 4 0. <fc P. 46 ; R,
V. Qomm, 3 Cox, 64; R. v. Fletcher, L. & C. 180.-12. v.
Tatloch, 13 Cox, 328 ; R. v. Brownlow, 14 Cox, 216 ;
R. V. FuUagar, 14 Cox, 370.
A stock and share dealer was in the habit of buying for
S. gratuitously and receiving cheques on account. On the
27th of November, he wrote informing S. that £300
Japanese bonds had been offered to him in one lot, and
that he had secured them for her, and that he had no doubt
of her ratifying what he had done, and enclosing her a sold
note for £336, signed in his own name. S. wrote in reply
" that she had received the 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 stockjobber, 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 V., c, 96, sect. 75
(sect. 60, ante, of Canadian Statute) to apply the cheque
to a particular purpose, viz., in payment for the bonds.— iJ,
V. Christian, 12 Cox, 502.
Xndictraent, under sect, 60, against a hanker for a>
lAROENY.
417
fraudulent conver^n of money i^rvMed to him^
tJiat A. B nn A-A • . • —
banker, with a J^i^lZ ^f """"' ^- »■• <^ «
of one Lu„d«d poTlXaT r^"' '"''''• '''-™
« pwuiius, with a direction to thn i«iiH r- r»
m wmmg to pay the ^id sum of money to Tllf-
pe«„a apeo^Ki in^the »id direction. a„7th^t the 1 ;
C. ft. as such banker as aforesaid, afterwarfs. ,„Tit ™
"" "olation of Bood f«iH. .„^ . ""'"'*«. ou
of.u- Wion. unlawi*"^d .ir rh^" ''™'
and heneat the said sum of moneyTto ht ?, l^
aforesaid against ^h7 ? intrusted as
,u^v. ^QQ Ji. ^^. Cronimre, 16 Cox 4.9
Mutrnent, under ^i. 60, againa „ 6«™fe; /^«„i„„
..as a hanker 7;; safe ^^^^Zl^^::^
the property ofthesaid A. B., drawn by '';^^<='«"'««
, '■'"■ 'he payment of the sum of one hnnLn
pounds, without any authority u> sell neLtn f
Ple-tee the same . and that the ,aid aTtt^^r s^h
;»nke, a, afo«said. and being so intrusted, as rfoS
m violation of good faith and contrary to the oW^ J
purpose for which the sajd bill of e "hange ^ intustdt
him ,. aforesaid, and whilst so intrus^d antsaiS^
unlawfully did negotiate, transfer and convert Lht'
use and l.nefi, the said bill of exchanl~ t"" "
(AMoth^ counts, ustheca>emay mgg^t^s ^^m s'o
Ind.ctmen^ under sections 61 Z' 62. maytaffly t
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LARCENY.
framed from the above, omitting the special allegations as
to safe custody, etc. — 3 Bum, 320.
Indictment under sect. 63 c gainst a factor for pledg-
ing goods. — that A. B., on did intrust to
C. D., lie, 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 autho-
rity 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, lien 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, 320.
Indictment under sect. 65, 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 offences hereinafter mentioned, to wit,
on C. D. was a trustee for certain property, to wit,
five thousand pounds, three per centum Consolidated 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 r' defendant disposed of,
showing the mode cf disposition, or destroyed the pro-
perty, if necessary.)— Z Bum, 321. See R. v. Town-
shend, 15 Cox, 466.
Indictment under sect. 66 against a director for frau-
dulent 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 heroin-
after mentioned, C. D. waa a director of a certain public
company caled a„d that ne. the «id C. IT^
being such director a, aforesaid, on the did „„ ' '
fdy and fraudulently take and apply f„. his o^"::-
and benefit certain monev tn wi> ««« 4.u ,
J k 1 • i. , "*°°^y' «* wit, one thousand pounds of
and belonging to the said company, against the I
Burn, 321. ^
/«!ic«m«^,«, „,«te. ^ 67 ayai^rt director, fo,- keep.
mg fraudulent aceounta.— that C D on
then being a director of a certain "body corporate, ".iaUed
••'-"7/""y ^- <« ««ch director, receive and
possess himself of certain of the property of the said
body corporate, otherwise than in payment of a > t
debt or demand to w.t, the sum of one hundred pounds
aad lawfully, with mtent to defraud, did omit to make'
a full and orue entry of the said sum, in the books and
accounts of the said body corporate, against . _«
Bum, 321.
Indictment under ..... 68 against a director for
destroying or falsifying books, etc.— that C D
'°-- ^^^"^ ^'"^e a director of a certain body corporate'
f'^, V ""lawfully, with intent to defraud, did des-'
troy (alter, or mutilate, or faldfy) a certain book (or
paper, or wrUmg, or valuable security) to wit
belonging to the said body corporate, against the"fo,^
—3 Bum, 321.
Indktment under sect. 69 agaimt a director for pub-
Ming fraudvlent M^nts.- tU^ before and
at the time of the committing of the offences herein.
after mentioned, C. D. was a director of a certain public
»mpany, c^led and that he, the said C. D so
being such director as aforesaid, on did ualawfilly
circulate and publish a certain written statement and
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420
LARCENY.
account, which said written statement was false in certain
material particulars, that is to say, in this, to wit, that it
was therein falsely stated that (state the particulara), he
the said C. D. then well knowing the said written state-
ment 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 vdth intent ) against the form (Add counts
•stating the intent to be to deceive and difraud " certain
persona to the jurors aforesaid unknown, being share-
holders of the said 'public company," and also varying
the allegation of the intent as in the section.) — 3 Bum,
321 ; Archbold, 467.
Offences against sects. 60 to 76 of Larceny Act, not
triable at qtiarter sessions. Sec. 6 Procedure Act.
As to who is an agent under sec. 60. See R. v. Cosser,
13 Cox, 187.
The power of attorney mentioned in sec. 62 of the
Larceny Act, must be a written power of attorney. —ii. v.
Chouinard, 4Q. L,R. 220.
In an indictment of a trustee for fraudulently convert-
ing property, under sec. 65 of Larceny Act, it is sufficient
to set out that A. " being a trustee " did, etc., instead of
that A. " was a trustee and being such trustee "did
'It is not necessary to set out the trust in the indictment.
—12. V. Stamjield, 8 L. N. 123.
OBTAINING MONEY BY FALSE PRETENCES.
' 77, Every one who, by any false pretence, obtains from any other
; person any chattel, money or valuable security, with intent to defraud,
is guilty of a misdemeanor, and liable to three years' imprisonment ;
2. Every one who, by any false pretence, causes or procures any
money to be paid, or any chattel or valuable security to be delivered
to any other person; for the use or benefit or on account of the person
LABOENY..
421,
making such false pretence or of .«» «»u
defraud, shall be dee,„rto ha'eXtj^' "^T' "'"' '"♦«"* ^
valuableHecuritywithinthemeanT.ror r f "*''> '"°»«^. chattel or
of g«.Uy of aa attempt to oommit the offence eharltf the
evidence warrants it._A v.ijoete,, /)«.„. 7f 24 It
y.Eagkton, Dean. 376 51S- B ^ n- ', •°- ''*>■«•
85 .ay a..o be given. sJc^ pLLI^'I^"' I'T^
.ent can be preferred for obtaining X'lV'jw
property by false pretences, unless ofe or X „f te
rt'zrentren:^'^'^^ "^ -* ''" "'^^ ^-^-
By sec. 112 of the Procedure Anf i« • r ^
obtaining or attempting to otta"^ tl^^^^^Ztl
nH c'rttt"' '^ " »'«-->"'negati:n:r:; ui
not necessary to allege any ownership of the chattel
»ney or valuable security; and on the tria^^itt „^^
pr:T„titr:nV" rr " *^"""' -^yvizz
person bnt it is sufficient to prove that the defendant d!,1
the act charged with an intent to defraud. """'*°' ^^
To constitute the offence of obtaining goods bv fal,.
pretences, three elements are neoessarv u, T^ . ^ ^°
unon whinh fi.. """e necessary. 1st, the statement
«p«tt which the goods are obtained mast be untrue •
2nd, the prisoner must have known at the time he ml*
ttrrir^ron-rir"'--'-'
that false stateme„t.irv:"z,:t: f^cTer'"" "'
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422
LARCENY.
The following ia quoted from an American case, reported
in 12 Cox, 208, the Commonwealth v. Yerker: "The
distinction between larceny and false pretences is a very
nice one in many instances. In some of the old English
cases the difference is more artificial than real, and rest
purely upon technical grounds. Much of this nicety is
doubtless owing to the fact that at the time these cases
were decided larceny was a capital felony in England, and
the judges naturally leaned to a merciful interpretation of
the law out of a tender regard for human life. But what-
ever may have been the cause, the law I^as come down to
us with such distinctions. The distinction between larceny
and false pretences is well stated in Ruaaell on Crinaea,
2nd Vol., 4th Edit. " The correct description in cases of
this kind seems to be that, if by means of any trick or
artifice the owner of property is induced to part with the
possession only, still meaning to retain the right of pro-
perty, the taking by such means will amount to larceny ;
but if the owner part with not only the possession of the
goods, but the right of property in them also, the offence
of the party obtaining them will not be larceny, but the
offence of obtaining goods by false pretences." See R. v.
Feithenheimer, 26 U. C. G. P. 139.
Indictment. — that J. S. on unlawfully,
knowingly and designedly did falsely pretend to one A. B.
that the said J. S. then was the servant of one 0. K., of
tailor, (the said 0. K. then and long before being
well known to the said A. B, and a custoraer 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
0. 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 unlawfully obtain from the said A. B. five yards
UBOIKT.
423
of superflne woollea cloth, with intent to defraud ; whereas
m ruth and m feet, the «.id J. S. wa, not then t e ZZt
J. S. wa, not then sent by the said O. K. to the said A
8a.d J S. well Itnew .t the time when he did o falsely
pretend as afo.-esaid, against the form -ArMM
By see. 196 of the Procedure Aet. if, upon the S^
the n..sdemeanor provided for by this seetion. a larceny is
proved on the facts as alleged, the prisoner is not. by reason
the^f. enftled to an acquittal. So far. this is inT^
m.ty wuh the English Act but our statute goes f^h
and, by section 198, p«,vides that, if upon an indictme tXr'
larceny, the facts proved establish an obtaining by false
pretences, the jury may iind the defendant V% o}
,uch obta^n^y by faUe pretences. This constitute! an
importo, t d,irerenee between the English statute and our
own statute on the subject But it .a probable that the rule
M down m It. V. Oorbua. J)ears. i B. 166. would apply
here, and that, upon an indictment for larceny, if the Zl
proved consutute an obtaining by faUe prel^ncLs, agene^
verd,ct gudty would be wrong. It would be LlTZ
defendant gu.lty of a felony, where a misdemeanor ol
has been proved against him._ie. v. Adam, 1 Den. 38
S. V. Jiudge, 13 Cox, 17. ° '
Moreover in such a case, the only verdict authorized by
the statute. .s« guilty of obtaining such property by false
pietences with .ntent to defmud." and such must I the
wo ds of a verdict, under such circumstances. Under
section 196 of the Procedure Act, the words of the statl
or obtaining by false pretences, the verdict must be for
the latter. " Shall not by reason thereof be entiUed to Z
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424
LABCENT.
acquitted of such misdemeanor" nro the words of tho
statute. See Greaves' note to R. v. Bi'yan, 2 Buss. 664.
It would have been impossible and against the spirit of the
law lu allow a verdict for u felony upon an indictment for
a misdemeanor. — See sec. 184 of the Procedure Act.
A defendant indicted for misdemeanor in obtaining
money under false pretences, cannot under C. S. C. c. 99,
8. 62, be found guilty of larceny, that clause only autho-
rizes a conviction for the misdemeanor, though the facts
proved amount to larceny. — R. v. Ewing, 21 U, C. Q. B.
523 ; R. V. BeHlea, 13 U. 0. C. P. 607.
The pretence must be set out in the indictment. — R. v.
Mason, 2 T. R. 581 ; R. v. Ooldsmith, 12 Cox, 479. See
notes to form in 2d schedule of Procedure Act. And it
must be stated to be false. — R. v. Airey, 2 E st, P. C. 30.
And it must be some existing fact ; a pretence that the
defendant will do some act, or tiiat he has got to do some
act is not sufficient. — R. v. Ooodall, R. &. i2. 461; R. v.
Johnston, 2 Moo. C. G. 254 ; R. v. Lee, L. & G. 309. Where
the 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 conse
quence of the misrepresentation of fact, although the pro-
mise also acted upon the prosecutor's mind. — R. v. Fry,
Dears. & B. 449 ; R. v. West, Dears, is B. 575 ; R v.
Jennison, L. <fc 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
- ^ -■ - r- -I
II
lABOlNY.
425
An indictment for obtaining monev hv fel^ .
n.a,t atau. the fal«, p,eteno^ wiree^^i^^.,Pt«n
may clearly appear that there wa, a faCInLr ^
existing fi.ct; whe™ the indictmeTa klT.^/ ""
oner pretended to A.", repreaentative hTahl 1! , •■ '
I'ira twenty ahillinga for B Tnd tW V ° «'™
»U^ B ten shilC a .^i ^iL'ZuZ^rjr,^
sung lact.— if. V. Hmahaw, L. & a 444
XO 148. 6d. of which £0 4« fiH Ti^K ^^' ''**''®
and £0 10« J ,*"*«• ^d. had been paidona-count
irc^t^fl-JfLTt^--^^
ence was that the prisoner's wife'^ad select ^oir
6d. coat for h™, subject to its fitting hi„, ,„,, J ^ "^
4s. 6d. on account, for which she received a hTr.t ■
giving credit for that amount oTt^il """"^ !»««'»
™ found to be too smaU «!h ti. ^ * ° "'° *""'• "
™.d for one to ^^^^t^l^^' ^.TZr
-e, it was tried OP by the presecutorTho^LtS
to the former part of the transaction Ti.. ^?^
-pHso™rtoo.thetweXtw„^Lir.:X'^-
«:toretr'rrt:::ryrwotrr^
fknf i f wcutjr-t WO smiiings coat, he parted with
. ».ic.on on tie1^l^:^^.r ztrcr
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426
LARCENY.
So the defendant may be convicted, although the pre-
tence is of some existing faot, the falsehood of which might
have been ascertained by inquiry by the party defrauded. —
B. V, Wiekham, 10 ^. ««? ^. 34; iJ. v. Woolley, 1 Den.
559 ; R. V. Ball, C. d; M. 249 ; R. v Roeov^k, Dears. & B.
24 ; or against which common prudence might have guard-
ed; R. v. Young, 3 T. R. 98 ; R. v. Jesaop, Dears. <fc B. 442 ;
JR. v. Hughes, 1 F. & F. 355. If, however, the prosecutor
knows the pretence to be false, JR. v. Mills, Dears. & B.
205 ; or does not part with the goods in consequence of
dofendant's representation, jB. v. Roebuck, Dears, (fc 5. 24 ;
or parts with them before the representation is made, R.
V. Brooks, 1 F.& F. 502 ; or in oomequence of a represen-
tation as to some future fact, R. v. Dale, 7 G. <& P. 352 ; or
if the obtaining of the goods is too remotely connected with
the false pretence, which is a question for the jury, R. v.
Gardner, Dears. <fc 5. 40 ; R. v. Martin, 10 Gox, 383 ; or
if the prosecutor continues to be interested in the monv^y
alleged to have been obtained, as partner with the defendant,
R. v. Watso , Dears. <& B. 348 ; R. v. EvaTis, L, & C. 252 ,
or the object oi the false pretence is something else than
the obtaining of the money, R. v. Stcn^, 1 J''. <& 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. v.
Barnes, 2 Den. 59; or overstating a sum due for dock
dues or custom duties, R. v. Thompson^ L. & C. 233, will
render the prisoner liable to be convicted under the statute.
(See reporter's note to this last case.)
The pretence need not be in words, b't may consist of
the acts and conduct of the defendant. Thus the giving a
cheque on a banker, with whom the defendant has no
account, R, v. Fliifit, R. & R. 460 ; R. v. Jackson, 3 Cam]).
lAKCINT.
427
370 ; R. V. Parker, 2 Moo O n i ■ J> „ a „ ~
^ p Avn D >i-. , ' ^- ''• fencer, 3 (7.
* P. 420 ; i2. T. Wwkman, 10 A. £ E. Si: M y PhU-
pott a^ K.n2;a. v. Preetk. M. ^ s! 127, of 'he
fraudulently aaauming the name of another to whom money
651; or the fraudulently assuming the dress of a member
of one of the umversities, M. v. Barnard, 2 0. * P 784
IS a false pretence within the statute
The i>risoner obtained a sum of money from the prose-
cutor by pretending that he carried on an extensive Zt
uessas an auctioneer and house agent, and that he wanted
a clerk, and that the money was to be deposited as secur^
for the prosecutor's honesty as such clerk. The jury found
He.d that th.s was an indictable false pretence.-ii. v
Cra6, 11 Cte. 85; JJ. V. Cooper. 13 Cte 617
The defendant knowing that some old county bank
that the bank had stopped payment, gave them to a mkn to
pass, telhng him to say, if ,^ked about them, that he M
taken them bom a man he did not know. ThemanpaCd
thenotes and the defendant obtained value for therT
appears thatthe bankers were made bankrupt: a-.M"that
he defendant was guilty of obtaining money by false' ™!
tehees, and «.at the l«nkr„ptcy pr^^din^ n'eed X
proved.— iJ. v. Kojtej^, n Cox, 115.
The indictment alleged that the prisoner was livin. apart
fcm her husband under a deed of sepamtion. a.^ C
n recejpt of an ncome from her husband, and that he Z
«ot to be l«ble for her debts, yet that she falsely prete^
ed to the prosecutor that she was living with her husblnd
nd was authomed to apply for and revive from thet"!'
ecutor goods on the account and credit of her husUnd^'d
I !
■IK J
1
\l
\
428
LAROENT.
that her husband was then reac'v and willing to pay for
the goods. The evidenc( at the trial was that the prisoner
Went to the prosecutor's shop and selected the goods, and
said that her husband would give a cheque for them as
soon as they were delivered, and that she would send the
person bringing the goods to her husband's office, and that he
would give a cheque. When all the goods were delivered,
the prisoner told the man who delivered them to go to her
husband's office, and that he would pay for them. The
man went, but could not see her husband, and ascertained
that there was a deed of separation between the prisoner
and her husband, which was shown to him. He commu-
nicated what he had learned to the prisoner, who denied the
deed of separation. The goods were shortly after removed
and pawned by the prisoner. The deed of separation be-
tween the prisoner and her husband was put in evidence,
by which it was stipulated that the husband was not to pay
her debts ; and it was proved that she was living apart from
her husband, and receiving an annuity from him, and that
she was also cohabiting with another man : Held, that the
false pretences charged were sufficiently proved by this
evidence. — R, v. Davis, 11 Cox, 181.
On an indictment for fraudulently obtaining goods in
a market by falsely pretending that a room had been
taken at which to pay the market people for their goods,
the jury found that the well known practice was for
buyers to engage a room at a public house, and that the
prisoner, pretending to be a buyer, conveyed to the minds
of the market people that she had engaged such a room,
and that they parted with their goods on such belief:
Held, there being no evidence than the prisoner knew of
such a practice, and the case being consistent with a
promise only on her part to engage such a room and pay
LABOENY.
429
thereby eight pounTt, "Th""""""''"*''- ■""» "btaimng
def«.»i it%^:dihX:oLrt:r,:„r "■^"' '»
prisoner at interest on .!.« ^ ."""»' '">' "-oney to the
and a de^ JZ2 CpSriatt "r f '^''™
unencumbered. The deX^t"!?; .^eT "''
was handed to the moaeont^r *u ""^^"^^^^^e time it
hour, befo» given Tm^X ^X f '"f ^ '"^
another per«,n, but notto ite ful": ^.^fC" '"
was evidence to go to the jun- in suooort f ' I '"
obtaining n.„„ey by false pretenl ^T^^ ^ t"^ "'
Cm, 270. '«nces.— i<. v. J|f«,ij», u
A false representation as to the vain. «f i, •
not sustain an indictment for obil^ ^/L^ ^^ ^»'
pretences. On an indi>fmn„«- e u . . . ™oney by false
P^teuces. it appea^dtr^fp^trrr''^^^'^^
assistant fiom .whom h- received , 7°*''. »" engaging an
him that he was doin^ ^7Z^h^ ^'^"' '^f^'^M to
sold a good business for a '™r'' *"'' """ "« "ad
business was worthless and he wZ rr"'"**^ "•"
that the indictment could not belusl- ^ "^^ ' '^'^'
the .presentations.-^, v. "p^^J^.X" ^^^^ "'
It has been seen. ante, that in ij v MiLn .
205, it was held, that the defendaw can^,^ " "^ ^^
the prosecutor knows the p.tencttt ^ '^^^f' '^
dant, however, in such cases m«v „ a ^ ^^^®^-
Procedure Act, be found g" iTy TfT; ".^l?* ^«^ "^ ^e
offence chaiged. Or be in .L « ■ * *" """""'" the
'heattemp.^ U. L''-^:Z'n cT^,' ^'^'^^ ^^
f XA i/Mc, 0/^u, the prisoner
t4
tffH
■aah.
-'I
'ill
51
430
LABCENT.
was indicted for attempting to obtain money by false
pretences in a begging letter. In reply to the letter the
prosecutor sent the prisoner five shillings ; but he stated m
his evidence at the trial that he knew that the statements
contained in the letter were untrue ; it was held, upon a
case reserved that the prisoner might be convicted, on this
evidence, of attempting to obtain money by false pretences.
But an indictment for an attempt to obtain property by
false pretences must specify the attempt.— JS. v. Marsh, 1
Den. 505. The proper course is to allege the false pretences,
and to deny their truth in the same manner as in an indict-
ment for obtaining property by false pretences, and then to
allege that by means of the false pretences, the prisoner
attempted to obtain the property. Note hy Oreavea, 2 Russ.
698. But it must be remembered that by sect. 185 of the
Procedure Act, " no person shall be tried or prosecuted for
an attempt to commit any felony or misdemeanor, who has
been previously tried for committing the same offence."
An indictment charged that the prisoner falsely pretended
that he had got a carriage and pair, and expected it down
to T. that day or the next, and that he had a large property
abroad. The evidence was that the prisoner was at E.,
assuming to be a man of position and wealth, but was in a
destitute condition, and could not pay his hotel and other
bills. That three days after he came to T. and induced
prosecutor to part with goods on the representation that he
had just come from abroad end had shipped a large quan-
tity of wine to E. from England, and expected his carriage
and pair to come down, and that he had taken a large
house at T., and was going to furnish it: Held, that the
false pretences charged were sufficient in point of law, and
also that the evidence was sufficient to sustain a convic-
tion.— -B. V. Howarth, 11 Cox, 588.
LARCENY.
431
Prisoner was indicted for obtaining from Geo^^e Hi«7.
the master of the warehouse of fhp <4f J! i tt ^ ^^^°P'
i«ilk and one egg, hTf27ur^lT.^ '''''''' '''' ^^' '^
then brought bfhim';!^'dte~^^^ ^™
Square, whereas these facts wereLt'e m".^^^^^^^^
that the prisoner' was waiter at an hoteUn Geor 1"'''
Hanover Square A fpm«i , ^^^^^ ^^^^^t,
had been -0,^^ tf S^^ ^^^^7' '^'"'-
to nurse. The chi'd f Jlina in L ' ™ P"<^ °"<=
nurse, took the woman with him tn w / '^^ another
took It to the workhouse of St Martin ■„ ti. 1^7^^' °
is in the Strand Union, and deU^ ^ " ^ ih ' "'""'
»«ing that he had found it iu Lei^e^'souaL TTj
by the master delivered to the nurse to wT'
and the nurse fed it with the /ut":; ^i.^ a^Thi:^
was the su^ect of the chaige of the indiotmenf al ht
the f«. given to the cmZtC^^Zt;:^^-
V. Carpenter, 11 Cox, 600. ""jecc— i^.
IniJ. V. Walne, 11 C7oa; 64.7 f»,^ „
quashed, on the d;«,e^;' TiflZZ'": ZrT
^Tjt ^^""^ '^"' ^- p-«-^^'rv"^^:
Prisoner by falsely pretending to a livervman th.» i,
was sent by another person to hire a ho«eIrhiI f
nve to E. obtained the horse. The prZerre";:
he same evening but did not pay for the hire : S Thl^
t ., w^ not an obtaining of a chattel with intent f de^t
withm the meaning of the statute. To consfit..^ T
ofTenoe. there mu,t be an intention to i;:TltZZ
i: laJ
JT^T-'mT
• \ i
i r i.J
1)1
■ ti
'W
1 i
432
LARCENY.
the property.—iJ. v. KiUiam, 11 Gox, 561. But see now,
for Canada, sec. 85, post.
There may be a false pretence made in the course of a
contract, by which money is obtained under the contract ;
E. V. Kenrick, D. & M. 208 ; R v. Ahhott, 2 Cox, 430;
R. V. Bwrgon, Dears. <k B.U; i2. v. Roebuck, Dears. &
B. 24 ; as to weight or quantity of goods sold when sold
by weight or quantity, R. v. Sherwood^ Dears, <fc B. 251 ;
R. V. Bryan, Dears, dh B. 265 ; R. v. Ragg, Bell, C.
C. 214 ; jR. V. Qoss, Bell, G. C. 208 ; R. v. Lees, L. <& 0.
418 ; R. V. Ridgway,S F. & F. 838 ; but, in all such cases,
there must be a misrepresentation of a definite fact.
But. a mere false representation as to quaUty is not
indictable ; B, v. Bryan, Dears. <fc B. 265, and the com-
ments upon it by the judges, in Ragg's case. Bell, C. C.
214; R. V. Pratt, 8 Gox, 334. See R. v. Foster, 13
Cox, 393. Thus representing a chain to be gold, which
turns out to be made of brass, silver and gold, the latter
very minute in quantity, is not within the statute.— i2,
V. Lee, 8 Cox, 233 ; sed quoere ? And see Greaves' obser-
vations, 2 Russ. 664, and R. v. Suter, 10 Cox^ 577 ;
also, R. V. Ardley, 12 Gox, 23 post.
It is not a false pretence, within the statute, that more
money is due for executing certain work than is actually
due ; for that is a mere wrongful overcharge. — R. v.
Oates, Dears 459. So, where the defendant pretended
to a parish officer, as an excuse for not working, that he
had no clothes, and thereby obtained some from the
officer, it was held that he was not indictable, the state-
ment being rather a false excuse for not working than a
false pretence to obtain goods. — R. v. Wakding, R. &. R,
504.
Where the prisoner pretended, first, that he was a
il
LARCENY.
433
Single man, and next, that he had a nVht f. k •
-ion, but s.TzzT,:rz^\:': tr f "«'
the defendant to be a marHrr - ^^ '^^ ^^"^^^
Of the. two raJ^Arr r;i- jt r "r
»»e «thi„ the sjatute.-i, v. Cw cV^'si °
ii. V. Jenmson, L. d- 0. 167 •*. ^. <*? ^. 516;
witrrs!\Ttrarrr ""^ '"" -^ -- --^^^
obtained g«.,s b, that 'faUe "prtsrZion''\" ""'v"""
witLiu the statute _fi v j /"P^entation, it was held
by faiael, prettding'^Ji^ttdif r' "'^ •^"'^^"'"^
^wUhju the statutel^. ^^^^^71"^^'
R. V. Aaterley, 7 C. <^ P 191 ; ^- <t? itf. o37;
It must be alleged and proved that fhp H.f ^ ,
defence that the prosecutor laid a tL t» 2 w L • " "^
ato the commission of the offend -fiv!',''™"""''
Upon a charge of obtaining monev hv f.l.. .
" " *-' 'f '"» -'-1 substant^it; Sn
DD
iii
! ill : i
434
LARCENY.
the main inducement to part with the money, is alleged
in the indictment, and proved, although it may be shewn
by evidence that other matters not laid in the indictment
in some measure operated upon the mind of the prose-
cutor as an inducement for him to part with his money.—
B. V. Hewgillf Dears. 316. The indictment must nega-
tive the pretences by special averment, and the false
pretence must be proved as laid. Any variance will be
fatal, unless amended. '6 Burn, 277. But proof of part
of the pretence, and that the money was obtained by such
proof is sufficient.— 12. v. Hill, B. & B. 190 ; B. v. Wick-
ham, 10 A. & E. 34 ; B. v. Bates, 3 Cox, 201.
But the goods must be obtained by means of some of
the pretences laid.- -iJ. v. DaU, 7 C. <fc P. 352; B. y.
Eunt,S Cox, 495; B. v. Jones, 15 Cox, 476. And
vrhere the indictment alleged a pretence which in fact the
prisoner did at first pretend, but the prosecutor parted
with his property in consequence of a subsequent pretence,
which was not alleged, it was held that the evidence did
not support the indictment.— i2. v. Bulmer, L & C. 476.
Where money is obtained by the joint effect of several
misstatements, some of which are not and some are false
pretences within the statute, the defendant may be con-
victed, B. V. Jennison, L. & C. 157 ; but the property
must be obtained by means of one of the false pretences
charged, and a subsequent pretence will not support the
indictment.— iJ. v. ^roohi, \F.&F. 502.
Parol evidence of the false pretence may be given,
although a deed between the parties, stating a different
consideration for parting with the money is produced,
such deed having been made for the purpose of the fraud.—
B. V. Adan\A(m, 2 Moo. G. C. 286. So also parol evidence
of a lost written pretence may be given.— i2. v. Chadwick
LARCENY.
435
obtained money f„„ othe/peC b^UVfT ""
tenees ,a not admissible.-^ y BoU Rn /^l ^'^
0. C. 280. But othe, false p^LZ^SC ^ ' "'"•
provin.ortheTArttrr; ;r n- *«
188 ; 6 Cox, 163 "**«e.— /f. y. ITe^wan, Dears,
A raUway ticket obtained by fal«« „w
the statute. R. v. i,^<,„. i IJ^^T n"^ ^ """"^
5 Co., 181; and so is an orier bnh!„!' f "■ ^^^
.ciety on ,^„,, ,„, tb^^m Xf tly ' '^"'^
Omnhatgh, Dears. 267. "loney — ^e. t_
Where the defendant only obtain. „,».);. ^
.peciSo sum by the false p^Wnl jt ?, T ■ T' ""^
statute.-^ V. Warn, i j^^Tc 1' !' "o' '"'"n the
There must be an intent to defrand wi, ,>
servant obtained goods f«,mA/swrrvfaI,T'! "^ ^-'^
order to enable B., his master c!? u- ?'*'*''<*«. in
from A., on which he ITn^L? '^^ '"'"''" » '*«'" ^-^
.as held that c .^d^ctr^rr r^.^-"
tap. 554. But it i, „^^ "'*"•■''• ''■ IWimnw,
to prove the intent J defLd 1^7""^ ^^ "^^g^ »»
F« «« *o <fe/W attt rXoTthe'lr f'^"-
B«t these words ■■ with intent ^oZlt^T''^-
aad neoessa^rpartof the indictment ^^ ."^ a material
fetaUnd cam,ot be remedi db '"r *f """'^n »
«"- By Lush, J., rv*:^in;XS' "'''""«
436
LARCENY.
'ipiiHii
An indictment for 'Ise pretences charged that the
defendant falsely pretemled 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 defendant saw
prosecutor and gave him his card, " J. W. and Co., timber
and coal merchants," and said that he was largely in the
coal and timber way, and inspected some coal bags, but
objected to the price. The next day, he called again,
showed prosecutor a lot of correspondence, and said that he
had a lot of trucks of coal at the railway station under
demurrage, and that he wanted some coal bags imme-
diately. 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 the bags in
consequence of hia having the trucks of coal under demur-
rage, at the station ; there was evidence as to the defen-
dant having taken premises, and doing a small business in
coal, but he had no trucks of coals on demurrage at the
station. The jury convicted the prisoner, 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. — R. v. Willot, 12
Cox, 68.
The prisoner induced the prosecutor to buy a chain by
knov'ingly and falsely asserting, inter alia, "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 : Held,
upon a case reserved, that the above assertion was suffi-
cient evidence of the false representation of a definite
matter of fact to support a conviction for false pretences.—
JR. V. Ardley, 12 Cox, 23 ; R. v. Bryan, Dears. & B. 265,
was said by the judges not to be a different decision,
I<ABCENT.
437
but that there w„ „o definite „atte. .f fe^e f.Ue„ ,ep„.
field for the purpose ofbrioti, "Sfeement to take a
.oil of the field?alfift! *;."!• '" '''* "^"^f""" "-e
field and examined the soT: ffX th' " "T"'*'' '""
had been induced to take L^^.'^ytZT^f''^'^ 'f ""
representations by the defendant Ji fraudulent
«.ct relating to the alaW^^fu ^ 'P"""" ""'"«'» »f
instance, thit he LT^ZuilT^'': f "«' ">■'• -• '»'
the indictment would rl^^.td^^r'r''"^'™"'-
would be sufficient, if he wrm«K f"^' *''''' "^' ''
not entirely, inSu^need I^ t^efei^ T'""^' """'«''
£«^i.W, 12 C7<,!r, 171. ^ "'^ pretences—A y.
The prisoner had obtained eooda fmm n.
upon the false pretences, as chalTd 1^; ^" r^'""'"''
he then Hved at and .^ thenTe ^ d L^': r/- :''^'
beer house. At the trial a- ""^ioia ot a certain
had never stated tt leta^ r^'nT H T.'"" ""-»«
but only that he lived thj" ^L tt"b "' '""'""'"•
the offence charged; that the fj ' ^ ''*' 8"ilty of
a~d that it is suUn\t ;xrn;r:r,r^^'
tences charffed. Also th«f ,> ; • ^ ^® ^^^^^ P^e-
^ , Also, tuat It IS immaterial thft^ f k«
ecutor was influenced hv nfKo, • "^ *^"^ P^OS"
..ep^ten.cha.^el-lfi:----^^
paied^rTrrS^fotn^-r'^V-"
W«. pretenees._A v. iia<lcliff!!7rcZ 4 T' "' "•"
AH persons who concur and assist in .i ,
principals, though not present" thrtl „f 1 ?"' ""
pretence or obtaining the property T 7^""^ "'«
Jfw. C. a 376 • fl V B- P?P««y;— ■«• T. if^[)oia„<i 2
• ^- a/0 , .«. T. Kemgm, L. i, 0. 383.
'1 "i.l
;^
i i
sVi
438
LARCENY.
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 see
fit to discharge the jury, and direct the prisoner to be
indicted for the felony : sec. 184 of the Procedure Act.
And it is prudent, in consequence of this section, to
indict for obtaining money by false pretences, wherever
it is doubtful whether an instrument be a forgery or net.
—3 Ru88. 677.
On the second part of this section 77, Greaves spys :
" This clause is new. It is intended to meet all cases
where any person by means of any false preteao •, mduces
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 R v. Oarrett, 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 the pretence, or of
any other person. It, therefore, is a very wide extension
of the law as laid down in R. v. Oarrett, 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 person whatsoever."
Prisoner was indicted for an attempt to obtain money
from a pawnbroker by false y>Tt ■• ^e (inter r,lin) that a
ring was a diamond ring. 'v ^acv: guilty knowledge,
evidence that he had shortly before offered other false
articles of jewellery to other pawnbrokers was held to be
properly admissible.— jB. v. Franckf 12 Cox, 612.
LAaOEKY.
ilfiO^i*
439
Goods fraudulently obtained by prisoner nn h- v.
on a bank where he U^d no r/nrZdVjt\ ''''
not be found ainhv «f u • .,' ' '"*' ^^ can-
ie had m„4t: ' I "^„':''^"'« '^^^ '"P-^nted that
cheque, and that they were good and v!^ .^ ^ ''"'"' ""^
feoe -«. V. Holmes, 15 Cba. q^o ^ ',
junsdietion „he„ o.eLoe i.Z:^^''^^: " "^
Prisoner convicted nf ^k* • • , y ^etrer.
pretences in 4Cntiug f^t't'l h\"r '^ '"-
condition precedent to hie ril ,^ L f '*'^''™»''' »
13 Cox. 608. *"" '" ^ !»'<'■ --B- »• £««,
Jf the .atter so retd:^^^::!?^': ^VT'"
Obtaining by false pretences wi...
p^en..-..^x^--,-trr:r5
-i2. V. Durocher, 12 i2. Z. 697 admissible.
An indictment for obcaininj? bcmrd und^r f.i
is too gene^l^^ v. ^cqJ^I; ^ at l^r
A dause of a deed by which the borrowIrV" .
»ney faUely decUres a p.peny :elra7d «y r.:::!
^ liiin^^ay constitute a fah«, pretenc«.-A '.J^l
On a trial for obtaining under fak« r.. f
su/cien^t e'vMerof i: in^S^!^! TT' '
13 Coa;, 345. ^^poration.— iJ. v. Langton,
••f
440
LARCENT.
\
The prisoner who had boen discharged from the service
of A. went to the store of D. and S. and represented
herself as still in the employ of A,, who was in the habit
of dealing there, and asked for goods in A.'s name, which
were put up accordingly, but sent to A.'s house instead of
being delivered to the prisoner. The prisoner, however,
went diiectly from the store to A.'s house, and remaining
in the kitchen with the servant until the clerk delivered
the parcel, snatched it from the servant, saying " that is
for me, I was going to see A." but, instead of going in to
see A., went out of the house with the parcel. — Conviction
for having obtained goods from D. & S. by false pretences,
held good. — JR. v. Robinson, 9 L. G. R. 278.
Where the prosecutor had laid a trap for the prisoner
who had writien to induce him to buy counterfeit notes,
and prisoner gave him a box which he pretended contained
the notes, but which, in fact, contained waste paper and
received the prosecutor's watch and $50.
Held, that the prisoner was rightly convicted of obtain-
ing the prosecutor's property under false pretences. — The
Queen v, Corey, 22 JN. B. Rep. 543.
78. Every one who, with intent to defraud or injure any other
person, by any false pretence fraudulently causes or induces any
other person to execute, make, accept, indorse or ds:troy the whole
or any part of any valuable security, or to write, impress or affix his
name, or the name of any other person, or of any company, firm or
co-partnership, or the seal of any body corporate, company or society,
upon any paper or parchment, so that the same may be afterwards
made or converted into or used or dealt with as a valuable security, is
guilty of a misdemeanor, and liable to three years' imprisonment.—
32-33 v., c. 21, s. 95. 24-25 F., c. 96, s. 90, Imp.
Til. Every one who, for any purpose or with any intent, wrongfully
and with wilful falsehood, pretends or alleges that he inclosed and
sent or caused to be inclosed and sent in any post letter, any money,
valuable security or chattel, which, in fact, he did not so inclose and
I^RCENT.
441
valuable ^^onrity\rc1:i7:ot^^^^^^ '"^•^«^>
false pretence8.-32-33 F., c. 21, s.tCart "'°^<'««<i «' e«nt by
Not in the Enfeiish Act.
See sec 113 Procedure Act as to this clause 79
Dears, dh B, 307." * ''• ^^^S-^n
Indictment. — ..... fT,pf a "d
W.„gl, and designedly did false., pret^ni^^f^:
m ruth and m feet (h^e negati,^ tU Jal^i^'^"'
Prisoner was iudioled at the Court of Queen^eri;';"
having mduoed, by false and fraudulent pZn^son'B™
a farmer, to endorse a p„„i,,ory note for ,lTo 45 and
sttT h^t rtr "■" ^""■" '•"' "«' -dictLn 1 d 1
late that the endorsement in question had been decW
fatem any manner by competent authority etc noT^h j
the said endorsement had been obt, in.rt t \T" '
converting the said note „ pip!. "it r"^' "'
^tion rejected. And a motio^t; qTa^on te S
false p,.tence3 charged, although d.mand'd. w^ Xld
—a. V. Bov^her, 10 M. L. 183. ^lusea.
Proof that the defendant had obtained from th^ .^
tor a promissory note ona promise to/a^IrpllTw^^^
!|Uf''|J
mi
mi
442
LARCENY.
he owed him out of the proceeds of the note when discount-
ed is not sufficient to sustain a conviction of obtaining a
signature with intent to defraud under section. 78. — R. v.
Pichip, 10 L. C. J. 310.
80. Every one who, by any fraud or unlawful device or ill practice
in playing any game of cards or dice, or of any other kind, or at any
race, or in betting on any event, wins or obtains any money or property
ftom any other person, shall be held to have unlawfully obtained the
same hy false pretences, and shall be punishable accordingly.— 32-33
v., c. 21, 8. 97. 8-9 v., c. 109, «. 17, Imp.
Indictment. — The Jurors for Our Lady the Queen, upon
their oath present, that W. M., on by fraud, unlaw-
ful 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 of 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 sura 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, unlaw-
fully 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 o£fending, against the form of the statute in such
lAKOENT.
443
««e made and p«,vided, and against the peace of Our
that it should hfve aUe^d t^t .^ "^ " "^ "^^""^
this section, a count should be added as in ITff T
Ihe fraud or unlawtal device or ill «. *•
proved.-^ V. i,„™^,. 1 S.I trl"" T-""
2 D. ^M.m. It does not seem necesLAo",tf^7;'
name of the game.-^.o*6o« SeeM... ^^4(7^!
81. Every one who, by means of any false t.Vlr*.^
any other ticket or order, fraudulenflv .a , °'' ^''^^e''. or of
attempts to obtain any paJsalro; l^v'^-an ""^**^""^ obtains or
other vessel, is «uilty'of\ Se^a^a 7^1'^"^ ^ °'
impri8onment.-32-33 r.,c. 21,, gg '' *""* ''"We to six months*
cnargea, if the evidence warrants it.
REOEIVINO STOLEN GOODS.
"L3
'i
444
LARCENY.
been feloniously stolen, taken, extorted, obtained, embezzled or
disposed of, is guilty of felony, and liable to fourteen years' impris-
onment.— 32-33 v., c. 21, s. 100, part. 24-25 V., c. 96, ». 91, Imp.
83. Every one who receives any chattel, money, valuable security
or other property whatsoever, the stealing, taking, obtaining, convert-
ing or disposing whereof is made a misdemeanor by this Act, knowing
the s&vr.e to have been unlawfully stolen, taken, obtained, converted
or disposed of, is guilty of a misdemeanor, and liable to seven years'
imprisonment.— 32-33 r., c. 21, «. lOi, part. 24-25 7., c. 96, a. 95,
Imp.
84. Every one who receives any property whatsoever, knowing the
same to be unlawfully come by, the stealing or taking of which
property is by this Act punishable on summary conviction, either for
every offence, or for the first and second offence only, shall, on sum-
mary conviction, be liable, for every first, second or subsequent offence
of receiving, to the same forfeiture and punishment to which a person
guilty of a first, second or subsequent offence of stealing or taking
such property is by this Act liable.— 32-33 F., c. 21, a. 106. 24-25 V.,
c. 96, s. 97, Imp.
See sec. 20 of Procedure Act. as to venue.
Clause 82 applies to all cases where property has been
feloniously extorted, obtained, embezzled, or otherwise
disposed of, within the meaning of any section of this act.
— Qr eaves. Cons. Acts, 179.
See sees. 135, 136, 137, 138, 199,200, 203, and 204 of
the Procedure Act.
As to the meaning of the words " valuable security,"
" property " and *' having in possession," see, ante, sect. 2.
IndictTmnt against a receiver of stolen goods, under
sect. 82, as for a substantive felony. — that A. B.,
on at one silver tankard, of the goods and chattels
of J. N. before then feloniously stolen, taken and carried
away, feloniously did receive and have, he the said A. B.
at the time when he so received the said silver tankard
as aforesaid, then well knowing the same to have been
feloniously stolen, taken and carried away, against the
form Archholdf 434.
lABCENT.
445
Any number of receivers at different times of stolen
property may now be charged with substantive feloni si^
the same md.ctment. Sec 138 Procedure Act
And where the indictment contains seveml counts for
arceny, descnbing the g«>ds ctolen as the property „f dtf!
ferent persons, .t may contain the like number of eoul
w.th the same variation, fo, ^^y,„^ ,,, same goX-
B.V. Bceton. I D.n. 414. It not necessary to Lte by
whom the prmc^I fdony was committed, R. v. Je„i>, 6
iP. 1.6 ; and ,f stated, it is not necessary to aver
that the principal has not been convicted. R v Baxt^
\ \ *^' ,7'""* "" '"^'".'"e"* okaWd Woolford with
stealing a gelding, and Lewis with receiving it, knowing it
^ have been "so feloniously stolen as l^said.-'Td
Woolford was acquitted, Patteson. J., feW that Lewis
»„ld not be convicted upon this indictment, and that he
might be tried on another indictment, charging him with
havmg received the gelding, knowing it to have been stolen
aLTTX^ryr"""-^- '■ '"^^-'' '^- ' **•
An indictment charging that a certain eva-disposed
persou feloniously stole certain goods, and that C. D and
L. F. lelomously received the said goods, knowing them
to be stolen was holden good against tie receivers, as
for a substantive felony.-ij. v. Cougar, 2 Moo. C. C. loi.
The defendant may be convicted both on a count chamna
him as acce^ory before the fact and on a count for receiv!
.ng.-ft V. Bugh^, Bell. C. C. 242._The first count of
the indictment charged the prisoner «ith stealing certain
goods ana chattels ; and the second count chafed hi,^
wihi^ceiving" the goods and chattels aforesaid of th^
value aforesaid, so as aforesaid feloniously stolen " He
was acquitted on the first count but found guilty on the
'I !►
M
I
446 LABCENY.
second: Held, that the conviction was good. — R. v.
Huntley, Bell, C. 0. 238 ; R. v. Graddock, 2 Den.^l.
Indictment against the principal and receiver jointly.
The Jurors for Our Lady the Queen, upon their oath
present that C. D. on at one silver spoon
and one table-cloth, of the goods and chattels of A. B.,
feloniously did steal, take and carry away, against the
peace of Our Lady the Queen, her crown and dignity ;
and the jurors aforesaid, upon their oath aforesaid, do
further present, that J. S. afterwards, on the goods and
chattels aforesaid, so as aforesaid feloniously stolen, taken
and carried away, feloniously did receive and have, he the
said J. S. then well knowing the said goods and chattels to
have been feloniously stolen, taken and carried away,
against the form Archhold, 440 ; 3 Burn, 323.
IndictmeTit against the receiver as accessory, the 'prin-
cipal having been convicted. — The Jurors for Our Lady
the Queen upon their oath present, that heretofore, to wit,
at the general sessions of the holden at on
it was presented, that one J. T. (continuing the for-
mer indictment to the end ; reciting it, however, in the
past and not in the present tense : ) upon which said
indictment the said J. T., at aforesaid, was duly
convicted of the felony and larceny aforesaid. And the
jurors aforesaid, upon their oath aforesaid, do further pre-
sent, that A. B. after the committing of the said larceny
and felony as aforesaid, to wit, on the goods and
chattels aforesaid, so as aforesaid feloniously stolen, taken
and carried away, feloniously did receive and have, he
the said A. B. then well knowing the said goods and
chattels to have been feloniously stolen, taken and carried
away, against the from Archhold, 440.
Indictment against a receiver, under sect, 83, when
lAHOENT.
447
^^P^^^P'd offers i, a ^i^l^^^
obtained from the said J N bv'falT f ^' '"^ ^'^S'^r
did receive and have, he tfe ii t r^t'S T'""?^
he 80 received the said ailv,, t i , ° ''™ """^n
well knowing the samrt«h»v '?''''"*»« »f<>'»«"<i. then
pre^nce, a^i„st the form ""^1^^ %f "^ ^^
The indictment must alleo. ti.. j
obtained by felse preteno,, ^. , ° «°°^' '" J-'^* been
it is not enough to Xrth.f ■."""" "^ ^^^ >«» ^ •
obtained. i»We'n «dtX^X " 7 vT; ""'''"'""^
mentdidnotsetoVra^tCrtXlT """ '"^ '"*<=''
as in the form above given H L ,5^° '"**"°<*' "«»
not having been takenlZ pell r*"*"' °*''«°°'
ofgailty. bnt the jud^r.^ ' T 7?'' ''^ ""' '*^''='
merit of the ohj J„nte.t B^mw^'T "^ "i^
that, for the future it m'^kf u ™^®^'» ^-^ intimated,
tHs natnre. to ^^ V:Zt '^^ TJT''^'"''^ "
were, as in indictments for obtltg nn t^re '"^'
tences; see X. v. ffUl, note r 2 »„..«?. ^^ ?•*•
held that an indictment f„^ • ' ^*' "^'"'^ '' "«
byfa.se pr.u.:lZZ/Vi:r^"' 'T """^'"^
motion to quash) if it diH w ii °° demurrer (or
pretences. ^ ^ "'" *"'«» '"'«' ''ere the false
At common law. recfiivpra «* i. i
guilty of a -dem^nTevIthlt^^^^^^^^ ^ ^^^
convicted of felony.-ib«^ 37.7 o ' *^'f ^^^ ^^'^
r 1
ml" .
! ■ , 11
I ! !
448
LARCENY.
The goods must be so received as to divest the possession
out of the thief.— i2. v. Wiley, 2 Den. 37. But a person
having a joint possession with the thief may be convicted
as a receiver. — R. v. Smith, Dears. 494. Manual posses-
sion is unnecessary, it is sufficient if the receiver has a
control over the goods.— iJ. v. Hobaon, Dears. 400 ; R. v.
Smith, Dears. 494 ; see, ante, sect. 2, as to the words
« having in possession." The defendant may be convicted
of receiving, although he assisted in the theft. — R. v. Dyer,
2 East, 767 ; R. v. Craddock, 2 Den. 31 ; R. v. Hilton,
Bell, a C. 20 ; R. v. Eughes, Bell, C. G. 242. But not if
he actually stole the goods.— i2. v. Perkins, 2 Den. 459.
Where the jury found that a wife received the goods without
the knowledge or control of her husband, and apart from
him, and that he afterwards adopted his wife's receipt, no
active receipt on his part being shown, it was held that the
conviction of the husband could not be sustained.— 22. v.
Dring, Dears. & B. 329 ; but see R. v. Woodward, L. <&
a 122.
There must be a receiving of the thing stolen, or of part
of it; and where A. stole six notes of £100 each, and having
changed them into notes of £20 each, gave some of them
to B, : it was held that B. could not be convicted of receiv-
ing the said notes, for he did not receive the notes th^t
were stolen.— i2. v. Walkley, 4 C. d: P. 132. But ' ->
the principal was charged with sheep-stealing, ana
accessory with receiving "■ twenty pounds of mutton, pare
of the goods," it was held good.— i2. v. Cowell, 2 East, P.
(7. 617, 781. In the last case, the thing received is the
same, for part, as the thing stolen, though passed under a
new denomination, whilst in the first case nothing of the
article or articles stolen have been received, but only the
proceeds thereof. And says Greaves' note, 2 Russ. 561, it
lAHCENT.
ii9
8 conceived that no indictment conid be ltem«i f™ ■
mg the proceeds of atolen proZv '^r,"'^ [»"«'=«"'-
»ppliee to receiving the chatter^™ t ''f '"" ™'^
.0 have h.en ato.el if 2^:/ X/ "^ IH!
were melted after the aWing, an indictoent (^IZ'C
It might be supported, because it would still h« '^^"'"^
chattel, though altered by the melting rb'utl^erf a 7Z
7 " ""'"'•'' 'T''' ■">■*'• "•« MeVtica cLttS U gone
and a person might as well be indicted for re^Wnftht'
money, for which a stolen horse was sold, as tlTZVt
the proceeds of a stolen note. «"■ receiving
The receiving must be subsequent to the theft rf
servant commit a larceny at the time the g^ds atre^ v'
ed both servant and receiver are principals but i?^!
.» received subsequently to the act of h™„v it *
The receiving need net be luori cau,a ; if it is to conceal
the thief. It ,s suiBcient.-ie. v. Mchardson. 6 C Ip3^
S. V. Davw, 6 C.£P. 177. '. " <'■ « /-. JbS ;
There must be some evidence that the goods were stokn
by another person.-iJ. y.Demley, 6 C IkP Mg B
Cordy. 2 RusB. 556. *- f'. * P. 399 ; A v.
A husband may be convicted of receiving property which
his wife has voluntarily stolen. B. y 3rAlh^,^r T^
250 if he receive it. knowing^t ,„ havell't^'ien' "" "■
— .theconvicti„n.auigh"::c::^^::dt:
££
t :'!■
iii
m
-5 Bit;
450
LARCENY.
against the receiver until reversed. — R. v. Baldwin^ R. <fc
R. 241.
To prove guilty knowledge, other instances of receiving
similar goods stolen from the same person may be given in
evidence, although they form the subject of other indict-
ments, or are antecedent to the receiving in question. —if.
V. Dunn. 1 Moo. C. C 146 ; R. v. Davis, 6 C. <fc P. 177;
R. V. Nicholls, 1 ^. <fc i*. 51 ; R. v. Mansfield, C. (£• M.
140. But evidence cannot be given of the possession of
goods stolen from a different person. — R. v. Oddy, 2 Den.
264. Where the stolen goods are goods that have been
found, the jury must be satisfied that the prisoner knew
that the circumstances of the finding were such as to con-
stitute larceny.— i2. v. Adams, IF.dkF. 86. Belief that
the, goods are stolen, without actual knowledge that they
are 80, is sufficient to sustain a conviction. — R. v. White.
\ F.ib F. 665. See sees. 203 and 204 of Procedure Ad.
Recent possession of stolen property is not generally
alone sufficient to support an indictment under this section,
—2 Russ. 555. However, in R. v. Langmead, L. & C.
427, the judges would not admit this as law, and maintain-
ed the conviction for receiving stolen goods, grounded on
the recent possession by the defendant of stolen property.
See also R. v. Deer, L. & C. 240.
A partner stole goods belonging to the firm, and render-
ed himself liable to be dealt with as a felon, under sec. 58
of our Larceny Act, and sold the same to the prisoner, who
knew of their having been stolen. Seld, that the prisoner
could not be convicted on an indictment for feloniously
receiving, but might have been convicted as an accessory
after the fact on an indictment properly framed.— JR. v.
Smitli, 11 Gox, 511. It is observed, in Archhold, 436,
that in this last case, if the only thing that could have been
1-AROENY.
451
proved againat the prisoner was tl,« r...' •
knowledge, he oughUo ZZnYnZZj T * '""^'^
hw misdemeanor of rafiAiu.n . , *"****'^'^ ^^r the commo»
lings and sixpence, and'I^' liZj^^:^^^^^^^ ^'^
facts were : S. wm . h»rm.„ . "'^"'nK 'he same. The
went up to the C. oatd f""' f" ' ■^'""™' •»'- «-<' «•
a <lori„: S. served Gt«,k ZTT""'"" "■"* ?»' "o*"
e.nployer's til. acme r„'eT 'ad 7' "-' '°°'' *'""' ""'
eighteen ahiUing, and si, p»ee wvS:g !" ," '" """"S'
and went away with it n^ ,•"','' "^^ P"' '» his pocliet
silver f«,n, his Zcet and l™""^ ""* P""™ "" '^^ »■»«
arrested. On en'^rtg tie ^ strT " "''^" "'' -»
place between S. and G and O T '^"Soi^on took
the money from the tiu" tLIZ"" """"" "'""' «• '""k
and G. of reeeiviog ffJl'TIJ"'''""^ ^- "f »'e»Ii>.g
.be jud«e ought to'havfS Tth t "" """"" '"'■«'
e^ee .,.»n which G. n-ighlt t rv^er: ^^'''■
c.pal m the second degree, and that therS IhTc ^"^'
..rjiSpi;~:r-tdr^^^
lea, etc, the crime charged was JIh" I '» <»"<>»»'y ato-
defence was given to the 0^':! m'^':*-"* ^-""^
cha,ge of stealing the same „v "at. ""''^ "" »
oounsel for the crown then «n^T f "■'flo-'ted- The
«nt by striking ont^^e^V^n tta^T W "f Z"^'"'-
property, and inserting the wor^s „ ^^ "• ''"V'"'™ ""«
t«rson" which was allowed! '"'' ^''^^^
Held, 1. That the record of tha r>» •
fonned no defence on tCt^Lotmi^r'''**'' "'«•
improperly received in evidence. ■"""■ "'"' "■"■
Hi
II
il
452
LARCENY.
2. That tlie amendment was improperly allowed. The
Queen v. Ferguson, ^ P. A B. (N. B.) 259.
Defendant sold to C, among other things, a horse power
and belt, part of his stock in the trade of a butcher in which
he also sold a half interest to C. The horse power had been
hired from one M. and at the time of the sale the term of
hiring had not expired. At its expiry M. demanded it and
C. claimed that he had purchased it from the defendant.
Defendant then employed a man to take it out of the pre-
mises where it was kept and deliver it to M., which he
did. Defendant was summarily tried before a police
magistrate and convicted of an offence against 32-33 V.,
c. 21, s. 100.
Held, that the conviction was bad, there being no offence
against that section.
Remarks upon the improper use of criminal law in aid
of civil rights.— r/te Qmen v. Young, 5 0. R, 400.
OFFENCES NOT OTHERWISE PROVIDED FOR.
85. Every one who, unlawfully and with intent to defraud, ly
taking, by embezzling, by obtaining by .'alse pretences, or in any
other manner wbatsoever, appropriates to his own use or to the use
of any other person any property whatsoever, eo as to deprive any
other person temporarily or absolutely of the advantage, use or enjoy-
ment of any beneficial interest in such property in law or in equity,
which such other person has therein, is guilty of a misdemeanor, and
liable to be punished as in the case of simple larceny ; and if the
value of such property exceeds two hundred dollars, the offender shall
be liable to fourteen years' imprisonment. — 32-33 F., c. 21, s. 110,
part.
The words " real or personal, in possession or in action,"
after the words " any property whatsoever, " have been
expunged from the 32-33 V., c. 21, s. 110.
This clause is not in the English Act.
The court would not inflict the additional punishment
tARORNT.
453
provided for in tl.e last narf «p fk- i
W pnvauoa of the property.-A v. Warner. 7 ij.
An indictment under 32-33 V. c 21 , 7in <• i
fu..y ^king and «ppr„pH«,.,-;„^Vy wi ktrnt"":
defraud need not state the value of f ha « .
..thoug... perhaps, a ,.,.J:^Z It Stirti:'
second clause of the section if fi,« i "®
On the trial of a„cr«: totnTu'isT """ 'T'
tion . t.n the j.y that they atnt ^^ Z^^
hey thought he bona fide Moved he hid a claim of Xh[
m the property taken Thj. n,. „ ^"*
By seo. 201 of the Procedure Act, it 13 enacted that
but » or opinion th.. hf U ^,° , o^^*"!" '.T'^ '"'''' '"•"°""™''
five of " r<, larcm!, Act," it m.vfiW t* ^'1"" '~"°" "«'")'-
liable to .« pnnishJ' ., .h.; i^;;" a^S 'LTf fe'^^' '" """ ^
on an injiotment under .nob .eolion." '*™ """""ted
Be offence created by thie section 85 of the Larceny
At „ unlcnown m the English criminal law, and T ta
believed, was unknown throughout the whok „f ,h!
Bcmmon of Canada before the act of 1869
In answer to our enquiries about it Mr R T w t
.teed, of the Law Department of the H^use of Co, J
the author of the valuable "Table of the I./? ,T
Dominion of Canada" had th.M "' "'""^
. ' "^»"»"». Had the kindness to give us tbo
Mowmg mformation. inserted here with his UCion!
.'-41 . , I
i
,H
454
LARCENY..
u
a 21 of 32-33 V. (1869) or the act respecting
larceny, was prepared, as well as the other i^riminal acts,
by the law clerk. In the preparation, old materials were
used as much as possible, the provisions found in the laws
of the various Provinces of the Dominion, and the English
Acts being freely used ; but, in some instances, new sec-
tions were written to meet cases at that time unprovided
for. Section 110 of chap. 21, as to which you enquire,
whence taken, etc., was new, written by my father to
supply a deficiency. He informs me that it was suggested
to him by some work on English Criminal Law, and thinks
it was the book entitled ' Greneral View of the Criminal
Law of England,' by J. Fitz Stephen. This book, having
been removed from the Parliamentary library, I cannot
give you the writer's exact arguments, but the sense you
have in section 110 of chap. 21. The English Commis-
sioners on criminal law, in their fourth report to Her
Majesty, of 8th of March, 1839 (Vol. 1), remarking on the
law of England as to theft or larceny, observe, page 52 :
• It is further observable, that the intent essential to the
offence must extend to the fraudulent appropriation of the
whole property, and that the mere intent to deprive the
owner of the temporary possession only is not sufficient to
constitute the offence. For, although, under particular
circumstances, a fraudulent privation of possession may
justly be made penal, such an offence cannot, without
great inconvenience, be included with so general a predica-
ment as that of theft. A law designed for the protection
of the right of property would be far too general in its
operation, were it to be extended to mere temporary pri-
vations 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.' And again, on
■i:l ■• -ii
LARCENY.
455
page 56 : And although the intent be not to commit a
collateral fmud. but to enjoy the temporary possession in
fraud of anoth.r'3 right of p,ssession, the offence cannot
.roperly constitute a theft; for this is an offence, as we
have already observed, against the right of propertv a!
.tmguished from the mere right of ^ssi^ranT'th
law of England does not, as the Eomanlaw did, notice the
furumpossess^on^s as constituting a branch of the law of
thef . The offence properly consists in the unlawful appro-
priation of that which belongs to another, which cannot be
where another has not the property, but only the right of
temporaiy possession. A law might no doubt be made to
comprehend mere wrongs to the temporary right of posses-
sion; but the same principles of policy and convenience
which occasion the distribution of offences into defined
c asses, must also regulate the limits of each separate class
of offences and we have already observed that to extend
the class of thefts to mere injuries to the possession, would
be to extend its boundaries too widely, and render the
limits between theft and a mere trespass indistinct.' But
see Bishop, onOrimi'ml Law. 2nd Edition, vol. 1, section
429 (section 579 of the fifth edition). ' Then we have a
very extensive influence 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 regarded
Therefore, although it is criminal to steal personal property
which IS of some value, however small the value may be
yet It 13 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 conse-
quence, for the criminal law, not for tho civil, to notice.
Ill rj ?
456
LABCENT.
But this rule of small things can be accurately understood
only as we see it applied in the cases, for the decisions are
not harmonious 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 ; foj
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 mu, . 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." — Grim. L. Gomm. Report,
loc. cit. And is it very clear, as 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 Ux." And
the English Commissioners, in a footnote to page 56 of
their report, cited, ante, say : " It is worthy of remark,
that the necessity of abandoning this principle of the
Eoman law has been felt in nations whose systems depend
more immediately upon that law than our own, inasmuch
as the doctrine of the furtum possessionis, as well as the
furtum usus, has no place in any of the modern German
codes."
Is the full extent of the Eoman law, on the subject, to
be now considered as forming part of our law ? "Furtum
LARCEHY.
457
invUo domino oontmctat Z, ™ * «''<»»m r«m
662^T "'^'!f«'«'*»'^ i" R- y'PhUip., 2 Mast PC
662; iJ. V. Bollmmv, 1 1)™ 970 . » r, , „ ''•
.* a 345 ; Ji. V. ^aiamfn c!I set L t' '^'"'■'■
victed ,mder suoh a clause? ' *™ '*'" "»"■
he »o„ld olherwrJ^ t^TblCtt off '"""""""-' '<• "hich
Jiarf. ° "" """' »»noe.-32-33 T.. c. 21, ,. Uo,
in t^rilr '^" '""'^•' '^°'^" """' «« -ted
purchased or sold, any timber mp^TT' ? ^"'**^* appropriated,
of lun,ber which is Z^d^d^TlnT""^^^^^
cast ashore on the banrortl of ^ "'''"' '''''"" "'' ^^'^^^ «'
without the consent of the owtr tht LrwhoT' ''"*"• °' ^*'^^' ''
or acids, or causes or procures Z heTe^J^fZ T"''' '''''''
nun.ber on any such timber, mast snarT. . 1* ^"^ "'"^ °'
Of lumber, or makes, or cau's . ^ p':^'urrto i" ""T '""'P*'^'^
counterfeit marie on any such timhlr . b« '"ade any false or
description of l^n.^.r,i:;:^Z:t\Zl\^^^^ ^ ''^ ^'"^^^
t W, or to the person in charge the^I^ ^^Zr'oU^lZZZ
45^
LARCENY.
I
authorized by euch owner to receive the same, any such timber, mast,
Bpar, saw-log or other description of lumber, is guilty of a misdemeanor
and liable to be punished as in the case of simple larceny.— 38 F., c.
40, *. Ifpart.
See sec. 228 of Procedure Act, post, as to evidence on
trials for offences against the above clause, and sec. 54 as
to search warrants.
88. Every one who brings into Canada, or has in his possession
therein, any property stolen, embezzled, converted or obtained by
fraud or false pretences in any other country, in such manner that
the stealing, embezzling, converting or obtaining it in like manner in
Canada would, by the laws of Canada, be a felony or misdemeanor,
knowing it to have been so stolen, embezzled or converted, or unlaw-
fully obtained, is guilty of an offence of the same nature and punish-
able in like manner as if the stealing, embe 7,ling, converting or
unlawfully obtaining such property had taken place in Canada.— 32-
33r., fl. 21, ». 112, part.
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 into New Brunswick, it was
necessary to prove that the iking was larceny, according
to the law of Maine. — Clark's Grim. 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 per-
son 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 accessory
before or after the fact, may be dealt with in the county in
tehich such death may happen, or such property shall be
brought. The words " in such manner that the stealing,
etc, would by the laws of Canada be a felony or misde-
meanor,'' in the present Act, sect 88, ante, constitute a
wide difference from this New Brunswick Act, and the
WW'
LAHOENT.
469^
to noticed by Mr. Clark would probably not now be
followed.
See special remarks under sec. 21 of Procedure Act
as to the power of parliament to pass the above clause.
89. Every one who corruptly takes any money or reward, directly
or .nd,recty under pretence or upon account of helping any pereoa
to any chattel nr^oney, valuable security or other pK,pertywhat8^evr.
wh,chbyany felony or misdemeanor, has been stolen, taken, obtained
exto ted embezzled, converted or disposed of, as in this Act befor^
mentioned (unless he has used all due diligence to cause the offender
to be brought to tnal for the same), is guilty of felony, and liable to
mTlm^ •™P"'*'°"'^"*--^2-33 v., c. 21, s. 116. 24-26 F., c. 96, ,.
As to the meaning of the words « valuable security " and
"property," see, ante, sect. 2.
Indlctment-Jriie Jurors for Our lady the Queen upon
their oath present that A. B. on feloniously, unlaw-
fuUy and corruptly did take and receive from one J N
certain money and reward, to wit, the sum of five pounds
of the monies of the said J. N. under pretence of helping
the said J. N. to certain goods and chattels of him the said
J. N. before then feloniously stolen, taken and carried
away, the said A. B. not having used aU due diligence to
cause the person by whom the said goods and chattels
weio so stolen, taken and carried away as aforesaid, to be
brought to trial for the same; against the form. .'
—Archbold, 837.
It was held to be an offence within the repealed statute
to take money under pretence of helping a man to goods
stolen from him. though the prisoner had no acquaintance^
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.-i2. v. Ledbitter, 1 Moo, C. a 76. The section
'1
'f!
'
i I
M
460
LARCENY.
of the repealed statute^ under which this case was
decided, was similar to the present section. — 2 Ruas. 575.
If a person know the persons who have stolen any pro-
perty, and receive a sum of money to purchase such pro-
perty 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 d'':] '-/ wba-u to assist the thieves in getting rid
of the propei* V . rocuring the prosecutrix to buy it. — R,
V. Pciacoe, 1 L\.n,. 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. R. v. O'Donnell, 7 Cox,
337. As to the meaning of the words "corruptly takes,"
see R. V. King, 1 Cox, 36.
90. Every one who 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 pur-
porting 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 advertisement to return to any pawnbroker or other person
who advanced money by way of loan on, or has bought any property
stolen or lost, the money so advanced or paid, or any other sum of
money for the return of such property, or prints or publishes any
such advertisement, shall incur a penalty of two hundred and fifty
dollars for every .ach offence, recoverable with costs by any person
who sues for the same in any court of competent jurisdiction ;
2. No action to recover any forfeiture under this section shall be
brought against the printer or publisher of a newspaper, defined as a
newspaper for the purposes of the acts, for the time being in force,
relating to the carriage of newspapers by post, except within six
months after the forfeiture is incurred. — 32-33 F., c. 21, ». 116. 35
v., c. 35, S8. 2 and 3. 24-25 V., c, 96, a. 102, Imp.
Ol. Every oue who, being a seller or mortgagor of land, or of any
chattel, real or personal or chose in action, or the solicitor or agent
LARCENY.
461
of any auch aeller or mortgagor, and having been served with a
written demand of an abstract of title by or on Cehalf of the purchaser
or mortgagee before the completion of the purchase or '"0^^^
conceals any settlement, deed, will or other instrument, material to
het.t!e,orany.„c«mbrance. from such purchaser or LZale o^
falsifies any ped.gree upon which the title depends, wi.h fntent' Z
defraud and ,„ order to induce him to accepV the title offered or
produced to h.m. >« guilty of a misdemeanor and liable to a fine or to
two years' imprisonment or to both ; «« » nne or to
2. No prosecution for any such oflfence shall be commenced without
he consent of the Attorney General of the Provincrwit 1 whS
the offence is committed, given after previous notice to th person
intended U> be prosecuted of the application to the Attorney Genem"
for leave to prosecute; ^ vjenerai
3 Nothing in this section, and no proceeding, conviction orjudg-
ment had or taken thereon, shall prevent, lessen or impeach any
remedy which any person aggrieved by any such offence wo^ld other^
wise have had.-29 V. ( Can.), c. 28, ,. 20, pari.
of gtblc^' '^'■" '''*''"' "'*' '""""'"« '^PP'^ °"^y '° *^« P^vince
93. Every one who, knowing the existence of any unregistered
prior sale, grant, mortgage, hypothec, privilege or incumbrance, ofTr
upon any real property, fraudulently makes any subsequent sa'e of
he same, or of any part thereof, is guilty of a misdemeanor, and 1 Ibk
to a fine not exc^d.ngtwo thousand dollars, and to one year's impH^
onment.-C. S. L. C, c, 37, *. 1 13. ^
Conviction under this sect^iJ. v. Palliaer, 4 L. C. J,
94. Every one who pretends to hypothecate any real property to
which he has no legal title, is guilty of a misdemeanor, and ZZ t
a fine not exceeding one hundred dollars and to one yLr's imprison!
rnent, and the proof of the ownership of the real estate shall Test with
tlie person so pretending to hypothecate the same.-C. SL.a!^.
95. Every person who, knowingly, wilfto.iy, and maliciouslv
causes or procures to be seized and taken in execution an^lanTs and
tenements, or other real property, situate within any t^wnlht in the
Province of Quebec, not being, at the time of such seizure the 6«„^
fide property of the person or persons against whom, o wTJ esta^
the execution .8 issued, knowing the same not to b; the p^^^rty t;
1
|i ".Mi
1 i ; h
f *
.1
469
LAROEMY.
the person or pereons against whom the execution is issued, is guilty
pf a misdemeanor, and liable to one year's imprisonment;
2. Nothing in this section, and no proceeding?, conviction or judg-
ment had or taken thereunder, shall prevent, lessen or impeach any
remedy which any person aggrieved by any such offence would
otherwise have had.— C *Si. L. C, c. 46, sa. 1 and 2.
96. The following sections apply only to the Province of British
Columbia.
97. Every one who, in any proceeding to obtain the registration of
any title to land or otherwise, or in any transaction relating to land,
which is or is proposed to be put on the register, acting either as
principal or agent, knowingly an«l with intent to deceive, makes or
assists or joins in, or is privy to the making of any material false
statement or representation, or suppresses, conceals, assists or joins
in, or is privy to the suppression, withholding or concealing from any
judge or registrar, or any person employed by or assisting the regis-
trar, any material document, fact or matter of information, is guilty
of a misdemeanor, and liable to three years' imprisonment;
2. Nothing in this section, and no proceeding, conviction or judg-
ment had or taken thereon, shall prevent, lessen or impeach any
remedy which any person aggrieved by any such offence would
otherwise have had ;
3. Nothing in this section shall entitle any person to refuse to make
|i complete discovery by answer to any bill in equity, or to answer
any question or interrogatory in any civil proceeding in any court;
but no answer to any such bill, quei-tion or interrogatory shall be
admissible against any such person in evidence in any criminal
proceeding.—^. S. B. C, c. 143, ««. 81, 82, 83 and 86.
98. Every one who steals, or withoit the sanction of the Lieutenant
■Governor of the Province, cuts, breaks, destroys, damages or removes
any image, bones, article or thing deposited in or near any Indian
grave, or induces or incites any other person so to do, or purchases
any such article or thing after the same has been so stolen, or cut or
broken, destroyed or damaged, knowing the same to have been so
acquired or dealt with, shall, on summary conviction, be liable, for a
first offence, to a penalty not exceeding one hundred dollars, or to
three months' imprisonment, and for a subsequent offence, to the same
penalty and to six months' imprisonment with hard labor;
2. In any proceeding under this section it shall be sufficient to
state that such grave, image, bones, article or thing, is the property
Sft the crown.— jB. S. B. C, e. 69, ««. %, 3 and 4^.
IM
FORGERY.
GENERAL REMARKS.
J^tV''^' i« "^etephorically taken from the smith who
;■ Forgery ia the fraudulent making or alteration of a
In Coos,a„^ (^ (1 leach, ^g^, b„„ ^ „
the making of a false instrument with intent L, deceile"
and Eyre, B ir. Taylor's case, defined it to be -TflL
signature made with intent to deceive." In the ^
decern mu,t doubtless be intended to be included an
.-tent to defraud -ra-^nd so it was defined by G^
J., m deWmg the opinion of the judges in the o^^f
Parkes and Brown, viz. : "the false maktag a note o^th«
instrument with intent to defmud." Again Eyre Bi^H,^
cose of Jones and Palmer, defined it to'be .^ri^':^
mg an .nstrument. which purports on the face of it TL
good and valid for the purposes for which it was cjted
with a design to deftaud any person or nerson, • w.T .
367.) 2^«4 P. a 853. ifd East ""27%^
says •' forgery at common law denotes a false making which
moludes every aWion of or addition to a true instale *
a making mate «„»„«,, of any written instrument for t^e
purpose of fraud and deceit."
"Forgery is the false making of an instrument with
intent to prejudice any pubUc orprivate right"-3°d 2t
Onm. law Oomm. 10th Jwm, 1847 p 34 *^"
llfl
"O
m
464
FORGERY.
" Forgery is the fraudulent making of a false writing,
■which, if genuine, would be apparently of some legal Q&i~
ceicy"— Bishop, 2 Cr. L. 523.
" The characteristic of the crime ot 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 be thus briefly
established. In most affairs of importance, the intentions,
assurances, or directions, of men are notified and authenti-
cated by means of written instruments. Upon the authen-
ticity of such instruments the security of many civil rights,
especially the right of property, frequently depends ; it is,
therefore, of the highest importance to society to exclude
the numerous frauds and injuries which may obviously be
perpetrated by procuring a false and counterfeited written
instrument, to be taken and acted on as genuine. In refe-
rence to frauds of this description, it is by no means essen-
tial that punishment should be confined to cases of actually
accomplished fraud ; the very act of falsely making and
constructing such an instrument with the intention to
defraud is sufficient, according to the acknowledged prin-
ciples of criminal jurisprudence, to constitute a crime, —
being in itself part of the endeavour to defraud, and the
existence of the criminal intent is clearly manifested by an
act done in furtherance and in part execution of that inten-
tion. The limits of the offence are immediately deducible
from the general principle already adverted to. 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 of any
fact is authenticated, or the quality or genuineness of my
FOROERY.
461
induced to ijive credit wh». ^ ^ ^^^^^ ^^g"»
ijivtj creait whore none was duo w.»u .
to the false making nf ., "was aue. w^ith respect
extends U> evetll r^h^tth'-'r""'' '"" °'^«-
eive credit to it a wnu^nT!!) !t '".'"'''"» » P«rty to
Tt is falsa and de"p^™ A.id :1 '" '" " "•""' ""=™
»trun.e„t differs frl o^e .t^h; t eT/S iStt '^
1.1 stating facts which are false wLlLT ' "'
forged, a, where a certifi J^ p" Jy^™ ''!V"''7r' ''
a»«.ed „m«r was „„t, i„ ? Jh 'l; ^"^ -«;^^^ ^^ -
to whom It IS shown is deceivpH in k.; • i ' ^ ^^
pose that the fact ceXZZ"ii^Z2 "^ '" '"P"
certificate it purports to be^nT 1 lt*:itl ^"'^
Fct, whether the fact certified be true or fZ I Tk "
other hand, such a certificate he in truths Jd' b"" ':
officer whose name it bearq fhp ,-r,of "^oue" oy the
-,K «. ,„„,.:i i;s- Its
^here money or other property is obtained by an inlt™
meat of the latter description, that is where iti f 7'
merely, as conWning a false statement Tr ;r^ Lnta ^^
Ike offence belongs U, the class of obtaining mL^T T'
ProFrty by false pretences."_5<A sTcJZ r I
nnd of April, 1840. ^' " ^- ^'^"'•
; Consistently with the principles which govern the
offence of fo^ry, an instrument may be falSy"
FF '
taagsKnaa 1 1
466
FORGERY.
although it be signed or executed by the pnrty by wliom it
purports to be signed or executed. This happens wheiu a
piirty is fraudulently induced to execute a will, a luatoriul
alteration having been made, without his knowledge, in tlie
writing; for, in such a case, although the signature bo
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
fur he made it to be the false instrument which it really
is." Cr. L. Comm. Bep. loc. cit.
This passage of the Criminal Law Commissioners seems
to be based on a very old case, cited in Noy'a Reports, 101,
Comhe'8 Case ; but in a more recent case, E. v. Collins, 2
M. and Rah. 461, it was held that, fraudulently toinduco
a person to execute an instrument, on a misj-epresentatiou
of its contents, is not a forgery ; and, in a case of R. v.
Chadvnck, 2 M. and Boh. 545, that to procure the signa-
ture of a person to a document, the contents of which have
been altered without his knowledge, is not a forgery.
The report (loc. cit.) of the criminal law Commissioners
continues as follows : " Upon similar grounds, an offender
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 in-
strument, purporting to be a prior conveyance of the same
land ; here again, the instrument is designed to obtain cre-
dit by deception, as purporting to have been made at a
time earlier than the true time of its execution."— 5^/4
Report, loc. sit.
This doctrine was approved of in a case, in England, ofi?.
FORGERY.
467
V. Ritsnn, 11 Cox, 352. and it was there hold nnon „
a laiso aeoa in his own name. Kelly C R Lv. •
passing of the statutes of H Goo. 4 «nd 1 Will 4 ' !
rf I'h "r-rV--'-^ «' fo ancie„t 11*; d
the text-lwoka of the highest repute, such as ComZ
Bacon'. Abr., 3 Co. Inst., and Posted, O Lur Z^'
a« all uuifonnly to the effect, not that every inst^rem
con.„u„ng a alae statement is a forgery, but that every
mstriiment which ,s false in a material part and tZl
purports to bo that which it is not, or to be elecuted by a
person who .s not the real peraon, or which purports to be
dated on a day which is not the real day, wh'erehy a Mse
operation is given to it, is forgery."
•■ Forgery, at cmnmon taw, is an offence in falsely and
fm,ul„lently making and altering any matter of recori
of my other authentic matter of a public nature as a
pansh register or any deed or will, and punishable by
line and Mnprisonmont. But the mischiefs of this kinj
increasing, it was found necessary to guard against them
by laore sanguinary laws. Hence we have several 2
of Pai lament declaring what offences amount to for^
and which inflict severer punishment than there were at
the common law."— Bacon's Abr Vol 3 277 P
woed 1 ff„««»s, 263, is of opinion that this Zj
d imition IS whoUy inapplicable to the crime of foroerv
a( o»«o« taw. as, even at c<»nmon law. it „-as forgery
to make false "prft«rf«" writings. » lorgery
"The notion of forgery does not seem so much to con
..3t m the counterfeiting a man's hand and seal, whth
;-1'.i
]i-l ^
.f
i
FOBGERT.
may often be done innocently, but in the endeavouring
to give an appearance of truth to a mere deceit and fal-
sity, 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 Haivkina, 264.
The definitions containing only the words " with intent
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. — R. v. Hill, 2 Moo. C. G. 30 ; M. v.
Oeach, 9 C. and P. 499 ; or forging a bill payable to the
prisoner's own order, and uttering it without indorsement,
Jt. V. Birkett, R. and R. 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 creditor
executes a forgery of the debtor's name, to get from the
proceeds payment of a sum of money due him, R. v.
Wilson, 1 Den. 284 ; or if a party forges a deposition
to be used in court, stating merely what is true, to enforce
a just claim. All these acts are forgery ; yet where is the
intent to defraud, in these cases ? It may be said that the
law infers it. But why make the law infer the existence
of what doe's not exist ? Why i>ot say that " forgery is the
false making of an instrument with intent to defraud or
deceive." The word " deceive " would cover all the cases
rORGERT.
469
aboveci ed; m each of these cases, the intent of the forger
Vu^l J^sfc'ument forged should be used as good
should be taken and received as signed and made, by the
person whose name is forged, in consequence, to deceive
quoad hoa^ and for this, though he did not intend to
defraud, though no one could possibly be defrauded by
h,s act, he IS m law guilty of forgery. See 2 Buss. 774
I IS true that the Court of Crown cases reserved, in
England held in A. v. ffodgson. Dears, ^B. 3, that, upon
an mdictment for forgery at common law. it is nec;ssary
to prove, not only an intent to defmud. but also an intent
to defmud a particular person, though, when this case was
decided, the statute, in England (14-15 V c 100 s 8^
enacted that it was not necessary in indictments for forgery
to allege an intent to defraud any particular person S
114 of our Procedure Act. In this. Hodgson's Case, the
prisoner had forged and uttered a diploma of the college of
surgeons; the jury found that the prisoner forged" the
document with the general intent to induce the belief that
It was genuine, and that he was a member of the college
and that he showed it to certain persons with intent to
induce such belief in them ; but that he had no intent in
forging or uttering it. to commit any particular fraud or
specihc wrong to any individual
Though the oifence charged in 'this case was under
the common law. it must be remembered that s. 8, of 14
15 v.. c. 100. appl-ed to indictments under the common
law as well as to indictments under the statutes, as now
a so do sect. 44 of the English Forgery Act and sect. 114
of our Procedure Act.
Greaves remarks on the decision in this case •—
"As the clause of which this is a re-enactment (44
:] i •%
-1
If \<
\ \
470
FORGERY.
of the English Act, was considered in R. v. 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 college of surgeons has no power of conferring
any degree or qualification, but before admitting persons to
its membership, it examines them as to their surgical know-
ledge, and, if satisfied therewith, admits them, and issues a
document called a diploma, which states the membership.
The prisoner had forged one of these diplomas. He
procured one actually issued by the college of surgeons,
erased the name of the person mentioned in it, and
substituted his own. He hung it up in his sitting room,
aifd, 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 ofl&cer, he stated he had
his qualification, and would show it, if the clerk of the
guardians, who were to appoint to the office, would go to
his gig; he did not, however, then produce or show it.
The prisoner was found guilty : the fact to be taken to
be, that he forged the document with the general intent to
induce a belief that it was genuine, and that he was a
member of the college of surgeons, and that he showed it
to two persons with the particular intent to induce such
belief in these two persons ; but that he had no intent in
forging or in altering, to commit any particular fraud, or
any specific wrong to any individual. And, upon a case
reserved, it was held that the 14-15 V., c. 100, s. 8, altered
the form of pleading only, and did not alter the character
of the offence charged, and that the law as to that is the
FORGERY.
471
name as if the statute had not been passed; and that in
order to make out the ollence of forgery at common law
there must have been at the time the instrument was
forged, an intention to dt,fraud some particular person
Now, this judgment is clearly erroneous. The 14-15 V
c. 100, s. 8, does, in express terms, alter the law as well as
the form of indictment, for it expressly enacts, that "on
the trial of any of the offences in this section mentioned
(forgtng, uttering, deposing of or putting off any instru-
ment whatsoever) it shall 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 in contradiction to each other, and conse-
quently, the former cannot be right. The clause was
introduced advisedly for the very purpose of alterina the
law. See my note to Lord Campbell's Acts, page 13^ It
is a fallacy to suppose that there must have been an intent
to defraud any particular person at the time of forgin^ the
document. In Tatlock v. Harris, 3 T. B. 176, that great
lawyer, Shepherd, said in argument, « it is no answer to a
charge of forgery to say that there was no spedal intent to
defraud any paHimlar person, because general intent
to defraud is sufficient to constitute the crime ;" and this
position was not denied by that great lawyer. Wood who
argued on the other side, and was apparently adopted by
the court. It is cited in 1 Leach, 216, note a ; 3 Chitty,
Cr. L. 1036, and, as far as we are aware, was never
doubted before this case. Indeed, in R. v. Tylney, 1 Den.
319, it seems to have been assumed on all hands to be the
law. There the prisoners forged a will, bijt 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
472
FORGERY.
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 defru ed, 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 startling 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 crim-
inal lawyer, Mr. Prendergast, and, as he did not take it,
he clearly thought it wholly untenable, and so, also, must
the judges who heard the case. See also the observations
of Cresswell, J., in H. v. Marcus, 2 C.&K. 356. In R. v.
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 person who
could be defrauded, and this opinion was not dissented
from by any of the other judges.
It has long been settled that making any instrument,
which is the subject ef forgery, in the name of a non-exist-
ing person, is forgery, and in Wilka' Case, 2 East, P. C.
957, all the judges were of opinion that a bill of exchange
drawn in fictitious names was a forged bill. Now, every
one knows that, at the time when such documents are
forged, the forger has no intent to defraud any particu-
lar person, but only an intent to defraud any person
whom it may afterwards meet with, and induce to cash
the bill; and no suggestion has ever been made in any of
these cases that that oflFence was not forgery. The ground
of the present judgment seems to have been that
formerly the particular person who was intended to be
FORGERY.
473
'i I
defrauded must have been named in the indictment; no
doubt, It IS a general rule of criminal pleading that the
names of persons should be stated, but this rule is subject
to the exception that, wherever the stating the name of
any person in an indictment is highly inconvenient or
impracticable, the name need not be stated, for lex ne-
minem cogit ad vana sen impossibilia. Therefore the
names of inhabitants of counties, hundreds and parishes
need never be stated; so, too, where there is a conspi-
racy to defraud tradesmen in general the names need
not be stated. So. where there is a conspiracy to raise
the tunds. It IS not necessary to state the names of the
persons who shaU afterwards become purchasers of stock
"for the defendants could not, except by a spirit of
prophecy, divine who would be the purchasers on a
subsequent day," per Lord EUenborough, C J R y
de Berenger, 3 M. and S. 68 ; which reason is equally
apphcable to the case, where, at the time of forging an
instrument, there is no intent to defraud any particular
person. Indeed, it is now clearly setUed that, where a
conspiracy is to defraud indefinite individuals, it is un-
necessary to name any individuals.— jB. v. Peek 9AS
E.,m; M. V. 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 B. y. Birch, 1 Leach
79, the prisoners were convicted of forging a wiU and
one count alleged the intent to be " to defraud the person
or persons who would by law be entitled to the messuages"
whereof the testator died seized. And it has been the
regular course in indictments for forging wills, at least
ever sin^ that case, to insert counts with intent to
defraud the Uir-aUlaw and the next of kin, generaUv —
3 ChUty Cr, L. 1069. It is true that in general there have
'■m' 11
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474
FORGERY.
also been counts specifying the heir-at-law or the next of
kin by name. But in R. v. 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 neces-
sary in forgery any more than in other cases to
name individuals where there is either great inconve-
nience or inpractibility 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 subjects, 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. v. ffevey, 2 East, P. G. 858, note a ; and
this case bears considerably on the present question. If
a person forged a bill of exchange with intent tr defraud
any one whom ho might afterwards induce to cash it,
and he uttered it to A. B., it cannot be doubted that he
would be guilty of uttering with intent to defraud A. B.,
and it would indeed be strange to hold that he was guilty
of uttering, but not of forging, the bill. No doubt the
offence of forgery consists in the intent to deceive or de-
fraud ; but a general intent to defraud is just as criminal
as to defraud any particular individual. In each case,
there is a wrongful act done with a criminal intent,
which, according to R. v. Higgins, 2 East, 5, is suffi-
cient to constitute an indictable offence. In the course of
the argument, Erie, J., said : " Would it not have been
enough to allege an intent to deceive divers persons to
the jurors unknown, to wit, all tuc patients of his late
master?" This approaches very nearly to the correct
FORGERY.
475
view, viz., that it would have been enough before the
14-15 v., c. 100, 8. 8, to have alleged and proved an
intent to deceive any peraQns who should afterwards
become his patients. Wightman, J., during the argument
said : " The question is, whom did he intend to deceive
when the forgery was committed ? " And Jervis, C. J.,
said : " The intent must not be a roving intent, but a
specific intent." Now, if these remarks are confined
to a count for forging, they are correct; though, in
Bolland'a Case, 1 Leach, 83, the prisoner was executed
for forging an indorsement in the name of a non-existing
person, with intent to defraud a person whom he does
not even seem to have known when he forged the indorse-
ment.
But it cannot be doubted that a man may be guilty
of intending to defraud divers persons at different times
by the same instrument, as where he tries to utter a
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 dis-
cussed in this note should not be left in uncertainty, and it
is much to be regretted that R. v. Hodgson was ever
decided 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."
—Oreaves, Cons. Acts, 303.
The case of Tatlock v. Harris, hereinbefore cited by
Greaves, is cited by almost all who have treated this ques-
tion; 2 Russ. 774; 2 East, P. C. 854, etc. In R, v.
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
476
FORGERY.
Ill
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 hand-
writing, 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
supposes 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. v. Mazagora, R. & R. 291, it has beenholden
that the jury ought to infer an intent to defraud the person
who would have to pay the instrument if it were genuine,
although, from the manner of executing the forgery, or
from that person's ordinary caution, it would not be likely
to impose upon him ; and although the object was general
to defraud whoever might take the instrument, and the
intention of defrauding, in particular, the person who would
have to pay the instrument, if genuine, did not enter into
the prisoner's contemplation. See jR. v. Croohe, 2 Str. 901 ;
JR. V. Ooate, 1 Ld. Raym. 1Z*J ; R. v. Holden, R. & R.
154. And even, if the party to whom the forged instru-
ment is uttered believes that the defendant did not intend
to defraud him, and swears it, this will not repel the pre-
sumption of an intention to defraud. — R. v. Sheppard, R.
& R. 169. R. V. Trmfield, 1 F. <& F. 43, is wretchedly
reported, and cannot be relied upon. — 2 Russ. 790, 7iote by
Greaves. See also R. v. Crowther, 5 G. Jc P. 316, and R.
V. James, 7 C. & P. 853, on the question of the neces-
sary intent to defraud, in forgery ; and R. v. Boardman,
2 M.i&i Rob, 147 ; R. v. Todd, 1 Cox, 57. Though the
POBGRRY.
477
present statute, see s. U4ofthe Procedure Act has the
defmud, showing evidently that there are cases where
«uch an averment is not necessary, it has been held Tn T
V Po«mer, 12 te. 235. that, in all cases, an Ltent to
defraud must be aUeged. This doctrine seem to have b^en
smce ^pudiated by Martin. B.. in JJ. v. ^^K„, 12^
It should be observed that the offence of forgery may be
complete though there be no publication or^utteriog „f
th forged instrument, for the very making with a flu
d« ent .ntentioi, and without lawful authority, of any
instrument which, at common law or by statute, is he su^
ject of forgery, « „f Mf a sufficient completion of the
offence before publication, and though the publication of
the instrument be the medium by which the in Jt is
usuaUy made mamfest, yet it may be proved as plainly by
other evidence.-2 EaH, P. c. 855. Thus in a «.,e where
the note, which the prisoner was charged with haviW
iTh! r T" ^'"'""''''' "'" ""' '■""■'I '» his Possessiof
at the time he was apprehended, the prisoner was found
tWt (he t"rr ''™" """■«'■' °f «•■•«■>« the objection
11^\T^,r"' '*'" P«blished._ie. y.im,i
Leadi 17o. At the present time, most of the statutes
which relate to forgery make the pubUcationof tlw forged
instrument, withknowledge of the fact, asubstontive felot
Not only the fabrication and false making of the whok
of a written instrument, but a fraudulent insertion, altera!
tion, or ensure, even of a letter, in any -Serial paH of
a true instrument, and even if it be afterwards executed by
another person, he not knowing of the deceit, or the fmu-
duleut application of a true signature to a false instrument
for which It was not intended or vice vend, a« as much
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478
FORGERY.
II
forgeries as if the whole instrument had been fabricated.
As by altering the date of a bill of exchange after accept-
ance, whereby the payment was accelerated. — 2 East, P. C.
855.
Even where a man, upon obtaining discount of a bill,
indorsed it in a fictitious name, when he might have obtain-
ed the money as readily by indorsing it in ^is own name,
it was holden to bo a forgery. — R. v. Taft, 1 Leach, 172 ;
R. V. Taylor, 1 Leach, 214; R. v. Marshall. R. S R.'J5;
R. V. Wiley, R. d;R.90; R. v. FraTwis, R. tk 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- v. Hart, 1 Moo.
C. G. 486 : and the circumstance of the prisoner, alleging a
claim on his master for the greater sum, as salary then due,
is immaterial, even if true. — R. v. Wilson, 1 Den. 284.
In respect of the persons who might formerly be witnesses
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 being genuine,
he would have been liable to be sued upon it. — 2 Russ. 817.
But now, see sects. 214 and 218 of the Procedure Act.
A forgery must be of some document 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. v. Close, Dears & B. 460 ;
though it may bo a cheat at common law.
The false signature hy a mark is forgery. — R. v. 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.
POROERT.
479
—R. V. Wall, 2 Host 953 ; R. v. MaHin, 14 Cox, 375 ; R.
V. iTttrper, 14 Cox, 574 ; i.!. v. Moffat, 1 XeacA, 431.
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. V. Mclntoah, 2 Leach, 883. So, a man may be indicted
for forging a deed, though not made in pursurjoe of the
provisions of particular statutes, requiring it to be in a
particular form.— i2. v. Lyon, R. & R, 255.
And a man may be convicted of foraing an unstamped
iustrument, though such instrument am have no operation
in law.— i2. v. Hawkeawood, 1 Leach, 257. 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. v. ffawkeswood, the judges appear in some
degree to have relied, 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., c. 25, s. 19, which prohibits the stamps from
being afterwards affixed, distinguished the case from
R. V. Eawkeawood. Though two or three of the judges
doubted at first the propriety of the latter case if the matter
were rea Integra, yet they all agreed that, being an autho
rity in point, they must be governed by it ; and they held
that the statute 31 Geo. 3 made no difference in the
question. Most of them maintained the principle in R. v.
Haivkeawood to be well founded, for the acts of Parlia-
ment referred to were mere revenue laws, meant to make
no alteration in thd crime of forgery, but only to provide
■ J
480
FORGERY.
that the instrument should not he available for recovering
upou it in a court of justice, though it might be evidence
for a collateral purpose ; that it was not necessary to con-
stitute forgery, that the instrument should be available*
that the stamp itself might be forged, and it would be a
strange dyfence 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 bo setting up
one fraud in order to protect him from the punishment due
to another. — M. v. Morton, 2 East, P, C. 955. The same
principle was again recognized in R. v. Roberts, and R, v.
Davies, 2 East, P. G. 955, and in R. v. Teague, 2 East,
P. C. 979, where it was htlden that supposing the instru-
ment forged to be such on the face of it as would be valid
provided it had a proper stamp, the offence was complete.
As TO THE UTTERING.— These words, utter, uttering,
occur frequently in the law of forgery, counterfeiting and
the like ; meaning, substantially, to offer. If one offers
another a thing, as, for instance, a forged instrument or a
piece of counterfeit coin, intending it shall be received as
good, he utters it, whether the thing offered be accepted or
not. It is said that the offer need not go so far as a
tender.— 22. v. Wekh, 2 Den. 78 ; R. v. Ion., 2 Den. 475.
(See Greaves' remarks on this case, 2 Russ. 830.) 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 criminal. The words " pay," '" 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
yOROBRY.
m
4M
Include attempts to make ««« nf ^ r ^ .
won aa the oaL whZ J^etllTK '"^'T"'' "
oeeded in making „,e of it ""'"""^ '»»•
Showing a man an instrument the ,,»-_•
would be criminal, though wil» nirr"?"^ "'"■*
idea in him of the nartv'. TJ!, ™""8 * *•'«•
Nor With the I'^Zi'^'TZTr^.' ""', ? ""«"»«•
the person to whom it w«, ','"""''• »«»'«<1 "P, with
»a, take ch.^ ^CtiZ'ZtuZT'' "l
about, be an uttering ^R v <?A.T j „ ! ^'^ ^ *»^'"ed
the showing of a forced mnoi^^ * . '•'• » ^. juo. But
defendant f, ^^X ::^rC :^'^Z :^ I'T'^
oltenngoT uttering, though the defendTnt »r ^ ' *"
..e .aid down h^ ^^ool^^c;i•'^,^n•>• «■;
.La descrfherThr^u'tite "'™'" *" "■""""* «»
co»Sh:[';fl;^rit'r:r"' ^ - » -
i-wa,._A V. <«^ rCa c'^r &r -"'"■'»
knowingly deliver . fotg^d bank note *„ i" '"~°
-z:vL^^:rmt^--.^^^s^^^^
™ Who utter, at;." zj:!^::^^^ "-
--.urdruSrrobrr::.t:r^
GQ
482
FORGERY.
r
ml* i
?Jij
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 admitted to
prove the guilty knowledge of the defendefnt. 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 oxiWihsequent utterance,
either to the prosecutor himself or to other persons, of
other false documents or notes, or bad money, though of
a different d^escHption, and though themselves the
subjects of separate indictments, is admissible as material
to the question of guiliy knowledge or intent.— Ta^/^or,
Evid., 1 vol., par. 322; R. v. Aston, 2 Russ. 841;
R. v. Lewis, 2 Russ. 841 ; R. v. Oddy, 2 Den. 264. But
in these cases, it is essential to prove distinctly that the
instruments offered in evidence of guilty knowledge were
themselves forged. — Taylor, loc. dt.
It seems also, that though the prosecutor may prove the
uttering of other forged notes by the prisoner, and his con-
duct at the time of uttering them, he cannot proceed to
show what the prisoner said or did at another time, with
respect to such uttering ; for these are collateral 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. V. Philipps, 1 Lewin, 105 ; R. v. Cooke, 8C.<&F.
686. In Philipps' cose, the judge said. "That the pro-
secutor could not give in evidence 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
roEGBKr.
483
uttermg was false, because the prisoner eould „ f k
prepared to answer or explain evideLrofthrS^ "ot be
that the prisoners called „p„„ to an ti^f tt'"'" ""'
p™,ecutor is aXX ;: ro:trr::;r '^.^''^^
having nttered forged notes, and lik X M ^ TT'
the .,ne of uttering the. ; bnt that XTh L": t al
»Ar fe™. colluter,l to such other vUenZ^Ml
be g,ven lu eviflenoe, as it was impossible tl.„\t
codd be prepared to eombat it." See » ! T ^"'™''
<£- ^. 559, and Paterson's J ' r^^.v 1 ™""''' ^ '^•
■ , * •' '^'"*'K3 therein on ff w /%, 7
Cited, ante, and R. v. i^orfia,.^ C&P 224 T^' ? '
::.tr:rr:,iat;^ Srtrar "»«-'^-
ev,de„.ofaeonatera.„irerir:/r.rC:itf
The prosecutor must also nrovp fhof fu .7 *
accompanied b, an in,.nt to' del ^ A to^hTf ""
retries, a„fe, on the necessity of thfa intnf^ ^ ' '''
ge..e„.lly. Baron Alderson toM th ^ 't »" t^^'
Moo. 0. a 30, that if they were 1*^ 7" w ^ " '^*''' ^
»tte,«l the bill as true, kno^Z TT '^ ''™™^'
forged, and meaning tiat thT »rl t T *." '' "^'
it should believe it to be L^ ne ^ "^ '"' "«'"''<'
infer that he intended to defraTd tht'' """ '""'"' *"
ruling was held right bv aU h, -^ '""""• "'"' "■'»
Todd. 1 to, 57, Cde idae J »,> ' °°''-, '^■"' '» * -•
J., said. ..I^a per:„:1::ge';X7Sr^-"-
utter any bill, note, or oth^r instrumenrwUh , .: ""*
ture, knowing it not to be the slnatLr „f T '"°°""-
whose signature he represents it ^1!^. ' P"^""
be taken to be such by h X t lorn T"""" '' '^
*ence,asweUi„;ointVCrori;-X»
I.
1
1?'l
484
FORGEllT.
enough to establish the intent to defraud, and the party so
acting becomes responsible for the legal consequences of
his act, whatever may have been his motives. The 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 given up the
money on the faitli of it. Supposing a person in temporary
distress pats another's name to a bill, intending to take it
up when it becomes due, but cannot perform it, the con-
sequence is that he has put another under the legal liability
of his own act, supposing the signature to pass for genuine."
See R. V. Vaughan, 8 C. <S; P. 276 ; B. v. Cooke, 8 C. c&
P. 582; B. v. Oeach, 9 C. S P. 499.
A consequence of the judgment for forgery was an inca-
pacity to be a witness until restored to competency by
the king's pardon.— 2 Euss. 844. But now by sect.
214 of the Procedure Act, it is enacted that " no per-
son offered as a witness shall, by reason of any alleged
incapacity from crime or interest, be excluded from giv-
ing evidence on the trial of any criminal case, or in any
proceeding relating or incidental to each case." And
sect. 215 of the same act enacts that every person shall
be admitted and be compellable to give evidence, in cri-
minal cases, notwithstanding that such person has been
previously convicted of a crime or offence.
IndictmenL-^iGeneT&l form, under statute.) The
Jurors for Out Lady the Queen, upon their oath present,
and J. S. on feloniously did forge a certain (here
name the instrument) which said forged is as follows:
that is to say (here set out the instrument verbatim)
(see post sections 114, 131, 132 of the Procedure Act)
with intent thereby then to defra'id ; against the form
of the statute in such case made and provided, and
iSMU'
FORGERY.
485
against the peace of Our Lady the Queen, her crown and
dignity.
And the jurors aforesaid, upon their oath aforesaid, do
further present, that the .aid J. S., afterwards, to wit
on the day and year aforesaid, feloniously did forge a cerl
t^m other (state the instrument forged by any name or
designation by which it is usually known) with intent
thereby then to defraud ; against the form of the Statute
m such case made and provided, and against the peace
of Our Lady the Queen, her crown and dignity.
And the jurors aforesaid, upon their olth aforesaid do
further present, that the said J. S.. afterwards, to wit
on the day and year aforesaid, feloniously did offer utter'
dispose of and put off" a certain other forged.... which said
last mentioned forged is as follows : that is to say
(here set out the instrument verbatim) with intent thereby
then to defraud, he, the said J. S., at the time he so
uttered, offered, disposed - and put off the said last
mentioned forged as aforesaid, well knowing the
same to be forged; 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.
And the jurors aforesaid, upon their oath aforesaid
do further present, that the said J. S., afterwards, to wit'
on the day and year aforesaid, feloniously did offer'
utter, dispose of and put off a certain other forged (as in
the second count) with intent thereby then to defraud
he, the said J. S., at the time he so uttered, offered dis'
posed of and put off the said last mentioned forged '
a. aforesaid, well knowing the same to be forged; agains't
the form of the statute in such case made and provided
and against the peace of Our Lady the Queen, her crown
and dignity.
1i' ' i[
486
FORGERY.
This indictment is not intended as a general precedent
to serve in all cases of forgery ; because the form in each
particular case must depend upon the statute on which
the indictment is framed. But, with the assistance of
it, and upon an attentive consideration of the operative
words in the statute creating the offence, the pleader
can find no difficulty in framing an indictment in any
case. — Archholdj 559.
Indictment for forgery at common law. — The Jurors
for Our Lady the Queen upon their oath present, that
J. S., on unlawfully, knowingly and falsely did
forge and counterfeit a certain writing purporting to be
(describe the instrument) with intent thereby then to de-
fraud: to the evil example of all others in like case
offending, and against the peace of Our Lady the Queen,
her crown and dignity.
And the jurors aforesaid, upon their oath aforesaid,
do further present, that the said J. S., afterwards, to wit,
on the day and year aforesaid, unlawfully, falsely and
deceitfully did utter and publish as true a certain other
false, forged and counterfeited writing, purporting to be
(describe the instrument) with intent thereby then to
defraud, he the said J. S., at the same time he so uttered
and published the said last mentioned false, forged and
counterfeited writing as aforesaid, well knowing the
same to be false, forged and counterfeited, to the evil
example of all others in the like case offending and against
the peace of Our Lady the Queen, her crown and dignity.
— Archbold.
At common law, forgery is a misdemeanor, punishable
by fine or imprisonment, or both, at the discretion of the
court.
The court of quarter sessions has no jurisdiction in
FORGERY.
487
cases of forgepy, 2 Euss 814, and never had: "why?"
said Lord Kenyon, " I know not. but having been
expressly so adjudged, I wiU not break through the rules
of law.—R. V. ffiggins, 2 East 18.— See also R v
Bigby, 8 G. Sc P. 770, and R. v. McDonald, 31 U. G.
Q. B. 337. See sees. 114, 130, 131 and 132 of Pro-
cedure Act as to indictments for forgery, and sec. 18
thereof as to venue.
A prisoner extradicted from the United States on a
charge of forgery can, upon an indictment for forgery, be
found guilty of a felonious uttering.— i2. v. Paxton 3 L
a L.J. 117.
Making false entries in a book does not constitute the
crime of forgery. Ex parte Lamirande, 10 L. G. J. 280.
See R. V. Blackatone, post, under sec. 12, and ex parte
Eno, 10 q. L. K 194. ^
Definition of the term forgery considered. In re Smith
4 P. R. (Ont.) 215. R. v. GcmM, 20 U. G. G. P. 154. '
Where the prisoner was indicted for forging a note* for
8500, having changed a note of which he was the maker
from $500 to $2,500. Held, a forgery of a note for
$500, though the only fraud committed was on the
endorser.— i2. v. McNevin, 2 R. L. 711.
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CHAPTER 165.
AN ACT EESPECTING FOEGERT.
ER Majesty, bj and with the advice and coneent of the Senate
and House of CominonH of Canada, enacts as follows : —
INTERPRETATIOK.
1. In this Act, unless the context otherwise requires, the expression
*' Province of Canada" includes the late Province of Canada and the
late Provinces of Upper Canada and Lower Canada, also the Pro-
vinces of Nova Scotia, New Brunswick, Prince Edward Island and
British Columbia, aa they respectively existed before they became
part of Canada, and also the several Provinces, Territories and Districts
now or hereafter forming part of Canada,
2. When the having any matter or thing in the custody or pospession
of any person is, in this Act, expressed to bean offence, if any person
has any such matter or thing in his personal custody and possession,
or knowingly and wilfully has any such matter or thing in the actual
custody and possession of any other person, or knowingly and wilfully
has any such matter or thing 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
or thing is so had for his own use, or for the use or benefit of another,
every such person shall be deemed and taken to have such matter or
thing in his custody or possession within the meaning of this Act.—
32-33 v., c. 19, 8. 62. 24-25 V., c 98, *. 46, Imp.
The words " or knowingly and wilfully has any such
matter or thing in the actual custody of any other person "
remove the 4oubts mentioned in R. v. Rogers, 2 Moo.
C. C. 85. R. V. Gei-riah, 2 M. & Rob. 219, and R. v.
Williarm, C. & M. 259
3. The wilful alteration, for any purpose of fraud or deceit, of any
document or thing written, printed or otherwise made capable of
being read, or of any document or thing the forging of which is niade
punishable by this Act, shall be held to be a forging thereof— 32-33
v., c. 19, a. 45, part.
Not in the English Act.
FOBasar,
489
An indictment under thi, clause should charge the
atte»t,ontoh.ve been done " wilfully .„d for a pfrZ
s:::fi:°t:'' """"- "-■" " -"^-"^ -" '» '^« p-
In consideration of law, every aftera«o» of an instru-
ment amount, to a foigery of the whole, and an indictoent
lS7th:l'"- '""^'^ "^ P-f »' • /™'^^»
aitera(*o«, though, m cases where a genuine instrument
has been altered, it is perhaps better to allege the aZ!
«J«m .n one count of the indictment.-! sJws oZ.
THE GREAT SEAL, ETC.
Kingdom, or the Great Sealtf^^a^^^^ p' ^*' °' "'^ ^"'^^^
of any one of Her Majeaty's^ <^^^^^^^ ^'^^"^ ^'°^"'*'« «f Canada, or
Priv/seal, an, Prfvrslgnet'ofTr L^^^^
Hgn manual, or any of Her Ma.Wv'! ^^J^"^^' f^"^ Majesty's Royal
/oith article' of theVnionlfrnVnS :nTs:o1?a'i I^HT''
used and continued in Scotland the Grea All .?.' '^'.^ ''"P^^
Privy Seal of Ireland, or the PHv^eTor sL ^""^ ' ^' '^'
Governor General of Canada or of^l! l • I J^^ ^'"*^ °^ »^«
Province of Canada, or of a^ Ll^ 'rS^'"'-^^^^^^^ ''"'^
Ume, administered tleGovernL^tTanvPr'i^? ""'' ** ""^
the Governor or LieutenantXe^o ^^^n'r^rof'H^t- T^'
coioD.e8 or possessions, or forges or coun erfeL Z ^f ^*-'''*^ '
8ion of any of the seals aforesaid, or utrsanvl!^' J"^""' ""P"*'"*
whatsoever, having thereon or ^SthrT^th'trnrr •'"'"""'
Of any such forged or counterfeited Heal.knowfn^^^^^
stamp or impress on of such rnr»<.^ « . . "* °* *°®
fo J or c««Lrf.iM vc o *^^pi:r';';sr ""• °""^
intended to rewmM. i|„ ,i.L J"lf ^ ""^"' ^ •PP«™tl7
aro^said. knowing thVir:r;oSTrrui;2[t<^^rf ''-''
oralters. or utters, knowing the same'to beTorgS^ o^u!lf «'''
document or instrument having any of the said stfmJ ' ^^
thereon, or affixed thereto, is |uilty of few2TK!'''"P™'''°"'
onmentforlif.-^2.33r.,;. l|,, T J^^^rVtl! C'"
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490
FORGERY.
5. Every one who forges or fraudulently alters any document
bearing or purporting lo bear tlie signature of the Governor General
of Canada, or of any deputy of the Governor General, or of the
Lieutenant Governor of any Province of Canada, or of any ptrHon
who adminiflterH or, at any time, administered the Government of
any Province of Canada, or ofters, utters, disposes of or puts oft" any
such forged or fraudulently altered document as aforesaid, knowing
the same to be so forged or altered, is guilty of felony, and liable to
imprisonment for life — 32-33 V., c. 19, *. 2.
LETTERS PATENT AND PUBUC REGISTERS.
6. Every one who forges or alters, or in any way publishes, puts
off, or utters as true, knowing the same to be forged or altered, any
copy of letters patent, or of the enrolment or enregistration of letters
patent, or of any certificate thereof, made or given or purporting to be
made or given by virtue of any Act of Canada or of any Province of
Canada, is guilty of felony, and liable to seven yeard' imprisonment.
--32-33r., c. 19, a. 3.
7. Every one who forges or counterfeits or alters any public
register or book appointed by law to be made or kept or any entry
therein, or wilfully certifies or utters any writing as and for a true
copy of such pubHc register or book or of any entry therein, knowing
such writing to be counterfeit or fali^e, is guilty of felony, and liable
to fourteen years' imprisonment. — 32-33 F., c- 19, s. 4.
Upon the trial of an indictment for any ofifence under
these Sections, the jury may, if the evidence warrants it,
under s. 1 83 of the Procedure Act, convict the prisoner of
an attempt to commit the same.
Indictment. — untior sec. 4 that A. B.,
on the Great Seal of the United Kingdon, falsely,
deceitfully and feloniously did forge and counterfeit,
against the form And the jurors aforesaid, upon
their oati^ aforesaid, do further present that the said A. B.
afterwards, to wit, on the day and year aforesaid, falsely,
deceitfully and feloniously did utter a certain other false,
forged and counterfeited Great Seal as aforesaid, then well
knowing the same to be false, forged and counterfeited
FORGERY.
491
TRANSFER OF STOCK, ETC.
books Of the Dominion of Canada or of? ^T"'''"'''^' '" «">' o^*''e
any bank at which the «ame?8tl' 11?"^ Province of Canada or of
Of any body corporate, coZlrot^t;' "" K T '" "'^ '^^P'^^' «^k
may be establish^ by chan^ or Kv ' ^' '"'"^^ "^^ '« or hereafter
Of Parliament Of the Un?r^i:;,^S o^of^Ca" 'l "^^"^ ^^ ^"^ ^«'
the Legislature of any Provincf rCa H '^** or by any Act of
offers, utters, disposes o* or puroffkr-''"'^'' "" *^*''^' ""
or altered, any jTwer of attleyl 'Z'^'ut 0'^?' "^ '^ '^'^^
share or interest of or in any such st^l "*^ ^ *''*"«f«^ ^^^
capital stock, or any claim forlarl^r TTl' P"^''« ''""^ or
any *mcA gran^ o/Za«rf, or to receiv^ri^ a ''?««'«»<'« »« ««« 0/
in respect of any such ahar Xe^or '^ '7 ""'"^^ P*^«^'«
bave any such share or interest trans t?'"^' "'' '"^^^^^--^ "^
or n.oney payable in respect thereof , *''^'«'^«'"^e any dividend
script or payment or allowance inT' ^: '"'^ «"<''' «»•»'•* of land, or
Of any such forged or a^ f^w rVf^Xr " ''""'T'^ '' ^''^-
knowing the same to be forced^ or I J, ^^ °''°'''" authority,
liable to imprisonment t "'-32^3'^'':'',;' 'f'''' '^'«"^' -^
«.2,/»jp. ^-S J3 r., c. 19, ,. 6. 24-25 r., c. 98,
fo.ge a transfer of a certain "Zl ■■■■;•••• ^^'^^^^'y M
aWand annuitieXu. "ir? " ""*'"
' " Which said stock and
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i
492
VOBOBRT.
annuities were then transferable at the bank of
and which said transfer then purported to be made by one
J. N. with intent thereby then to dt^fraud, against the form
of the ^.tatute in such case made and provided, and against
tbt) peace of Our Lady the Queen, her crown and dignity.
(2nd Count. J-^ ...» did offer, utter, dispose of, and
put off, a certain other forged transfer of a certain share
and interest of, and in certain other stock and annuities, to
wit . . ' . ' 'c' naid last mentioimed stock and annuities
were then transferable at the bank of and which
said last mentionned transfer purported to be made by one
J. N., with intent thereby then to defraud, he the said
A. B., at the time he so uttered the said last mentioned
forged transfer of the said share and annuity, well knowing
the some to be forged, against the form — Archbolil,
590.
Indictment for forging and uttering a power of
attorney to sell out stock. — that A. B., on
feloniously did forge a certain power of attorney to
transfer a certain share and interest in certain stock and
annuities which were then transferable at the bank of
which said forged power of attorney is as follows,
that is to say (here set it out) with intent thereby then to
defraud, against the form (2nd Count.)
feloniously did offer, utter, dispose of and put off a certain
other forged power of attorney, purporting to be a i)ower
of attorney to transfer a certain share and interest of the
said J. N. in certain stock and annuities which were then
transferable at the bank of... to wit, with in-
tent thereby then to defraud, he the said A. B. then well
knowing the said last mentioned power of attorney to be
forged, against the form (3rd Count.) felo-
niously did demand and endeavour to have a certain share
My ,1
FORGraiT.
493
and interest or the said J. N. i„ certain stock and an
nu,t,e., wh.eh wero then transfemble at the tankof
to mt. .. transfered, in the books of the saidbank'of
•;: ^y ^"^"« "f » owtain other fowed power of
a torney, purporting to be a power of attomfy, t, tZff
to sa.d share and interest of the said J. N „ tl'T^Jd
stock andannuitiesso tran,fe«ble as aforesaid, with inZt
thereby then to deft,ud, h. the said A. B., at tC time he
so demanded and endeavonr^d to have the said sha"»nd
.nterest transferred aa aforesaid, well knowing the saM St
, fuo jury may, if the evidence warranfjj if
un er sect. 183 of the Procedure Act, convict the^r lone;
of an attempt to commit the same.-^2 Muss. 865.
9. Every one who, Mealy and deceitfullv nersonAt^a o
any i.are, or interest of or in any stock annnri "^ °''"''' ^^
wliich now i. or hereafter may t^ tr!n«k ki ^'"' ^ ^"" P"^'''' ^""*^'
the Dominion of Cana2,oroTa^yP "!?:/." "7 "' '^' ^"'^ ^'
at wh.h the same is ttrLlTe^^a^^r^^^^^^^^^
est of or in the capital stock of anvK^ ^ ^^'^ *"'" "'*«'-
«.pec.„f .„,.„oh .„.«„, in,.«t.'.t*;tr.rd;s?J:'i
fere or endeavors to transfer Anv nk— « . mereDy trans-
™cu „.„ar, .. .he.b7r:[r„r'tXo::r:e'^iTt*:: -^
the true ..d ..wful «,„„.irr;^^t^Z*r„d™;f "'"''"
The words in itaUca are not in the Koglieh Act.
H
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494
FORGERY.
'I If
iTidictment — feloniously did, falsely and deceit-
fully, personate one J. N., the said J. N. then being the
owner of a certain share and interest in certain stock and
aunuitief), which were then transferable at the bunk of
, to wit (state the amount and nature of the stock ;)
and that the the said A. B. thereby did then transfer the
said share and interest of the said J. N. in the said stock
annuities, as if he, the said A. B., were then the true and
lawful owner thereof, against the form — Archbokl,
614.
Upon the trial of any indictment for any offence under
this section, the jury may, if the evidence warrants it, under
sect. 183 of the Procedure Act convict the prisoner of an
attempt to commit the same. — 2 Rv^a. 865.
10. Every one who forges any name, handwrititig or Bignature, piir-
jKJrting to be the name, handwritingor signature of a witneHS attesting
the execution of any power of attorney or other authority to transfer
any share or interest of or in any such stock, annuity, public fund or
capital ^tock,or grant of land or scrip or allowance in lieu thereof.as
in either of the two sections next preceding mentioned, or to receive
any dividend or ntoney payable in respectof any such share or interest,
or offers, utters, disposes of or puts off any such power of attorney or
other authority, with any such forged name, handwriting or signature
thereon, knowing the same to be forged, is guilty of felony, and liable
to seven years' imprisonment.— 32-33 V., c. 19, s. 7. 24-25 V., c. 98, s.
4, Imp.
11. Every one who, with intent to defraud, wilfully makes any
false entry in, or wilfully altera any word or figure in any of the books
of account kept by the Government of Canada, or of any Province of
Canada, or of any bank at which any of the looks of account of the
Government of Canada or of any Province of Canada are kept, in
which books the accounts of the owners of any stock, annuities or
other public funds, which now are or hereafter may be transferable in
Buch books, are entered and kept, or in any manner wilfully falsifies
any of the accounts of any of such owners in any of the sajd books, or
wilfully makes any transfer of any share or interest of or in any stock,
annuity or other public fund which now is or hereafter may be trans-
FOROERY.
495
I (
Proline, ofCan»l,, „r |„i„„ . ol„k „r ,m "'Canada or of any
p.r,o„ employ,, „ Lr„Z ^/ll'XZkTl'Z "' '"",' "'' "' ""'"
.n,l acoo„„., a, .„ me„tio„«n ',L „!., "l""?'' '"' "' """'' ''«''"
knowingly a„,| »li|, Inlent k, Z ! , P'!°"''"« "•"""" "<■ k'pl,
money payable a^ afo": ™ ,',^ r":";' 7 """""'' '"'"'" "'
.. 19, .. 9. 24-26 K. c. 98, ,. T'Zp ""P"«'"™«"'-a2 M V.,
Indutm^nl under eec. lo.- f„l„„i„usly did f„r„
.certain name handwriting and signature, as and ZT.
portnig to be the name, handwriting and signature of o"e
•;• "' f""* P-r'"'* '» •« « witness attesting the
exeou ion of a certain power of attorney to transfer f ^"
tan, share and interest of one J. N. in certain stock Tnd
anniuties which were then transferable at the banic of
.......... to wit (hre Me the amount and nature of the
»(oc/-,; against the form ■'
(ind Count.) did ntte;; dispose of and put „ff a
certain other forged power of attorney t« transfer a certl
share and rnterest of the said J. N. in certain stocTa"d
annuities which were then transferable at the bank „f
:f •th-e-sa^d":'::!' tgir i-r""*!"? ""^ ^'^"^"-
. ,, ^otnaa, on the said last mentioned
power of attorney, a, an attesting witness to the executiT
t ereot he the said (defendant.) at the time he so Cd
.ttered disposed of and put off the same, well knowTng
the said name and handwriting, purporting to be the namf
""" "-"-"-« of the said therL, as attes^
!: -i
i: 'I
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496 FORGERY.
witness thereof as aforesaid, to be forged, against the form
, — Archhold.
Indwtment for making false entries of stock, under
see. 11 — feloniously did v/ilfully alter certain
words and figures, that is to say (here set out tlie words
and figures, cw tliey were before the alteration) in a certain
book of account kept by in which said book the
accounts of the owners of certain stock, annuities and other
public funds, to wit, the (state the stock) which were
then transferable at were then kept and entered,
by (set out the alteration and the state of the account or
item when so altered) with intent thereby then to defraud •
against the form — A rchhold.
Indictmnent for making a transfer of stock in the name
of a person not the owner, under sec. 11. — feloniously
did wilfully make a transfer of a certain share and interest
of and in certain stock and annuities, which were then
transferable at the bank of.......... to wit, the share and
interest of , in the (state the amount and
nature of the stock), in the name of one C. D., he the said
C. D. not being then the true and lawful owner of the said
share and interest of and in the said stock and annuities,
or any part thereof, with intent thereby then to defraud,
against the form — Archhold.
Indictment, under sec. 12 then being a clerk
of and employed and entrusted by the said
feloniously did knowingly make out and deliver to one J,
N. a certain dividend warrant for a greater amount than
the said J. N. was then entitled to, to wit, for the sum of
five hundred pounds ; whereas, in truth and in fact, the
said J. N. was then entitled to the sum of one hundred
pounds only ; with intent thereby then to defraud, against
the form — Archhold.
FORGEBY.
497
these sechoDs, the jury may, if the evidence warrant, ,>
of a^^ attempt to eommit the san.e.-2 ie,«,. 865
Where a bank clerk made certain feUe entries in the
bank books under hia control, for the purpose oferbhL
inn to obtain the money of the bank improperly ^
Jieta, that he was not guilty of tomt-rx, Wl n.
BUwkBtone, 4 Man. L. JJ 29(f ""^'"^-^ «««» v.
DEBENTMES, STOCK, EXCHEQUER BILLS. ETC
any debenture or otl,er,eo ' ilv ,.* S "".""° '^'''"S"' '""«««<l.
orc.„^»,or .„ye,c.,e,„er mT:;:x 'boTo:?„7n;°™."°^
or Provincial note, or any mdor8emPr,t « • ' ^ Dominion
debenture, exchequer bUI or exchZ- ^ '' "'"T""""' °' '^''^ «"«h
under the authority of an^ATo^treP ,'''''" '^'="'-''^' '^^^^^
the Legislature of any Province of Can J '"'"* "' ^""''^*' ^"^ ^^
certificate for intereat'accrui g u^eon ot^^ '°T"' "^^'>* °^
letters, figures, mark«, lines or devicrlulllrl^ *"^ ''°'^'»
substance of any paper provided or !n P''"''*'^J«or appearing in the
suciidebentures,TcLqurLii:'ore:h^^ "«.^^ ^^ -^
or Provincial notes or other secuH ies a Tl-H ' '"""'" ""'*«
for working any threads into the Ita ce oTa^^^^^ "^^'"'"^^^
«uch thread, and intended to in^itate sucrwo'rdsXr^^^^
markH, lines, threads or devices -nr »„„ * ' ^»"'*^«'
for P,.i„.i„, .„eh debenu.r::^^-:^:,:"^^': ~f^ -PJo^^a
such notes or other securities nr nn.r r '^ '^-"^quer bonds, or
b.ll. or excl,equer bonds, note, or olbef cities or ."'.,. 'T"
.r.e.,, ,„.e„dea to imitate .„, .„„„ .W.^T^^ ^Z:^^;^'^
HH
■I
498
FORGERY.
guilty of felony, and liable to seven years' imprisonment.— 32-33 V.,
c. 19, s. 11. 24-25 v., c. 98, ». 9, Imp.
16. Every one who, without lawful authority or excuse, the proof
whereof shall lie on him, makes, or causes, or procures to be made,
or aids or assists in making any paper in the substance of which
appear any words, letters, figures, marks, lines, threado or other
devices peculiar to and appearing in the substance of any paper
provided or to be provided or used for such debentures, exchequer
bills or exchequer bonds, notes or other securities aforesaid, or any
part of such words, letters, figures, marks, lines, threads or other
devices, and intended to imitate the same, or knowingly has in his
custody or possession any paper whatsoever, in the substance wlieieof
appear any such words, letters, figures, marks, lines, threads or
devices as aforesaid, or any parts of such words, letters, figures,
marks, lines, threads or other devices, and intended to imitate the
same, or causes or assists in causing any such words, letters, figures,
marks, lines, threads or devices as aforesaid, or any part of such
words, letters, figures, marks, lines, threads and other devices, and
intended to imitate the same, to appear in the substance of any paper
whatsoever, or takes, or assists in taking an impression of any such
plate, die or seal, as in the next preceding section mentioned, la guilty
of felony, and liable to seven years' imprisonment.— 32-33 V., c. 19,
9. 12. 24-25 v., c. 98, s. 10, Imp.
16. Every one who, without lawful authority or excuse, the proof
whereof shall lie on him, purchases or receives, or knowingly Ims in
his custody or possession, any paper manufactured and provided by
or under the direction of the Government of Canada or of any Pro-
vince of Canada, for the purpose of being used as such debentures,
exchequer bills or exchequer bonds, notes or other securities as afore-
said, before such paper has been duly stamped, signed and issued
for public use, or any such plate, die or seal, as in the two sections
next preceding mentioned, is guilty of a misdemeanor, and liable to
imprisonment for any term less than two years. — 32-33 V.yC. 19, s .13.
24-25 V.,c.9S,s. II, Imp.
See, ante, sec. 2, as to what constitutes a criminal pos-
session under this act.
Sec. 183 of the Procedure Act applies to trials under
these sections. — 2 Muss, 939.
FORGERY.
STAM.»S.
499
17. Every one who forges, counterfeits or imitates or nrn
be forged, counterfeited or imitated any etaZ nr «'» P'^^^"'-^^ ^o
issued or authorized to be used by any Ac Tf theTf^ ''^''''
Canada, or of the Legislature of «n7 ® Parhament of
"'7' »h.reor.„, ^^^ylZ: ZST^ ^ "T- "'
part or portion of anv such stamn -_^, i • , P*'"' ^^ any
expo,., ro. „,e .". ."ch^„^:xr„:.t3ivssr'''°'
or engraves, cuts, s.nks or makes any plate di^r ..»,.. ^^mp,-
to make or inutate such stamp or any Par't or ' , '"m""' ''^''''^y
by permission of an officer or person who h^rTt ''''''"'' ^^°«P'
thatbehalfbytheGovernmentof cTn J J^'"g^"'y authorized in
may lawfully grant snT^lt^.^^'^orT '"' '^'"'"'"^^ °' ^^"^^-'
plate, die or thing, withoufsucr^;;"- ' ^"''""^'' "'^"-^ «"«!»
sion. uses or •-« ^ossessir^aryrcri^' ''^tT'\'''^''"
engraved, cut or made, -or tears off or remoltV '"^ ^""^""^
ou which a duty is payable, any stamn h^r , '" *"^ '"^^'•"'"ent,
wholly or in part pa^^ or ieZv H olty 'su h"r' '''' '^^ '"'^
or mark indicating that it has been used Jor or L ' T^.'"^ "''^'^^ '
of a.>y such duty, ,s guilty of felo-^v IV^ Z "^' *^^ P^y'^^"'
ir„prisonment.-:32-/3 v'c19,:'h 32 '.f' ^ ^"^^""^ >'^^-'
41, » , ' "*^' ''tetutes, provides fnr
the forgery of postage stamps, etc
See i{ V. (7oJ«wo«, ij. <£. jj. 212, and B. y rield 1
Leach, 383.-And see general remarks on foJery Th
woris " with intent to defraud" are not neccsTrv in 1
.nd,ctment, since the statnt« does not cont^irtS Is
■K. V. Aspin, 12 Cox, 391.
It was held, in ij. v. Ogden, 6 C. £ P. m under a
™,lar statute, that a fraudulent intent was not necessl l
but m a case of R. v, Allday, 8 C * P itTT a
Abinger ruled the contrary. "iLe act of P^iml^llo
-d, does not say that an intent to deceive or detud
- --¥
1
500
FORGERY.
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 shall not be
found to be wrong, that to constitute this offence, there
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."
Lord Abinger, in R. v. Page, 8 C. <fc P. 122, held,
upon the same principle, that giving counterfeit coin in
charity, knowing it to be such, is not criminal, though in
the statute there are no words with respect to defrauding.
But this is overruled, as stated by Baron Aldersoa in
R. V. Ion, 2 Den. 484 ; and Greaves well remarks (on R.
V. Page) : "As every person is taken to intend the
probable consequence of his act, and as the probable con-
sequence 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, qucere, whether this case rests upon
satisfactory grounds ? In any case a party may not be
defrauded by taking base coin, as he Tnay pass it again,
but still tho probability is that he will be defrauded, and
that is sufficient." — 1 Russ, 126, note Z.
And are there not cases, where u party, receiving a
counterfeit coin or a false note, not only may not be
defrauded, but will certaimly not be defrauded. As for
examp^fi- suppose that during an election any 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 nullity ; 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
FORGERY.
601
J f J I.- . ■y™"'^' 't. then, Tannot be said that I10
defrauds him m oivino him ;„
Why see in thi. „ f ! .' Wment, a forged note.
Why see in this a fraud, and no fmud in giving a m,mt„
eit note, in charity, to a beggar* Nothi^gTs°d„o~
beggar, and he is not defrauded of anything by ^^Z^
his forged bill, nor is this elector, who has sofd h s '"e
defrauded of anything, since nothing was due to him
they are both deceived, but not de/randed. In the g^e'
ml remarks on orgcry. arUe, an opinion was expr! "ed
that forgery would be bette,. described as "a false mak . !
with the mt.nt to defraud 0. de«H" and sue .^es a!
the above seem to demonstmte the necessity of a codifl
cation of our criminal laws. And, when the statute
makes no mention of the intention, does it not make '
act prohibited a crime in itsel,; apart from the intention
Of course U is a maxim of our law that " actv. nonZu
™™»»me«s«.,«.. or. as said in other wordlTy
Starkie, 1 Cr. PI 177, that, "to rendera partv criininLl w
e^ponsible a vicious will must concur with a wroiS
ae But, cntmues Starkie, "though it be universU
true that a man cannot become a criminal unle.s 1,^
muid be m fault, it is „„t so general a rule that to
guilty intention must be averred upon the face of t !
...uictment," And then, for example,' does notfte ma,
who forges a stamp, or, sou,nter, utters it, do wilfully „
«,dawful act! Does not the law say tiat this a f bl
Itself, ^^ cnmmal ? Has Parliament not the ri»ht to
utteriig It, ,s a felony, by itself, whether the person ^ho
oes 1 means wrong, or whether he means right, or J!
ther he means nothing at alH" And this i exac ly
.ii * ! !
A
1
502
rORGERY.
what it has said with regard to stamps, the Great Seal,
records of the courts of justice, etc. It has said of these :
" they shall be sacred, inviolable : you shall not deface
them, imitate them, falsify, or alter them in any way or
manner whatsoever, and if you do, you will be a felon."
And to show that, as regards these document", the intent
to defraud was not 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,
i'OUTt records, etc. And no one would be prepared to say,
that the maxim, " la fin justijie lea Tnoyens,'^ 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 he thinks, it ought to be, and should, in fact, he.
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, in the rebellious infraction
of the enactments of the legislative authority ?
Against the preceding remarks, it must be noticed that
Bishop, 1 Cr. L. 345, and 2 Cr, L. 607, cite.'' these two
cases, R. v. Allday, and M. v. Pa^e, anr* apparently
approves of them ; but Baron Alderson's remarks on R. v.
Page, in R. v. Ion, do not appear to have been noticed
in Bishop's learned books. At the same time, it may
be mentioned that in his 1 Cr. Procedure, after remarking,
par. 621, that the adjudged law, on this question, seems
to be not quite consistent with the general doctrine,
and not quite clear and uniform in itself, this distin<3;uished
author says, in a foot note to par. 522 : " Now, in this
POROERY. 503
complication Of things, where also practice has run on
without decision, and then decision has proceeded without
much reference to the principles adhering in the law it
IS no suprising that, on this question of alleging he
intent, legal results have been reached, not ai:og:ther
harmonious with one another, and not uniformly correct
inFinciple Stilus this is a practical question, th
practical good sense of the judges has prevented any
great inconvenience attending this condition of things "
See remarks by Greaves, on R v. ffodgson, under
genei-al remarks on forgery, ante, and s. 114 Procedure Act.
BANK NOTES.
18. Every one who, with intent to defraud, forges or alters or
offers, utters, deposes of or puts off. knowing the same to be forged or
altered, any note or b.Il of exchange of any body corporate, cZanJ
or person carrying on the business of bankers, co.mnon y ca K
bank note, a bank b.ll of exchange or bank post bill, or anyt^dorse"
n.ent on or ass.gnn.ent of any bank note, bank hi! of excha^e or
'llLTv c 1^5 if 27:'T' ^"o' "^^'^ '^ i-prisonmrt'^o^hf:
-6^-66 y.,c. ii),o. 15. 24-25 v., c. 98, s. 12, Imp.
Indictment.-- feloniously did forge a certein
note of the bank of commonly called a bank note,
or the payment often dollars, with intent thereby then to
defraud, against the form
(2ndCaurrt.)-.And the juroi^' aforesaid, upon their oath
aforesaid, do fuitbe. present, that the said J. S. afterwards
to wit on the duy and year .foresaid, feloniously did
oifer, utter, dispose of and put off a certain other forced
note of the bank of commonly called a bank-n^te.
or ihe payment of ten dollars with intent thereby then to
defraud^he said J. S. at the time he so offered, uttered
disposed of and put off the said last mentioned forged
note as aforesaid, then and there well knowing the same to
be forged, against the form -^Archbold.
v, i<
504
FORGERY.
It is unnecessary to set out the forged instrument : it is
sufficient to describe it by any name or designation by
which it is usually known, or by its purport. — Sections
130 and 131 of the Procedure Act.
An indictment need not state, in the counts for utterinw
to whom the note was disposed of. — JR. v. Holden, R. <&
Jt. 154. The intent to defraud any particular person
need not be alleged or proved. Sect. 114 Procedure Act.
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 chat the defendant
sold a forged note to an agent employed by the bank to
procure it from him, the judges held this to be within the
act, although it was objected that the prisoner had been
solicited to commit the act proved against him, by the
bank themselves, by means of their agents. — R. v.
Holden, uhi supra. So where A. gave B. a forged note
to pass for hira, aid upon B.'s tendering it in payment of
some goods, it was stopped; the majority of the judges
held, that A., by giving the note to B., was guilty of
disposing of and putting away the note, within the
meaning of the act. — M. v. Palmer, M. d; R. 72; R. v.
Soares, R. & R. 25 ; R. v. F'.lewart, R. & R. 363 ; and R.
V. Oiles, 1 Moo. C. C. 16 G, where it was held, that giving
a forged note to an innocent agent, or an accomplice, that
he may pass it, is a disposing of, and putting it away,
within the meaning of the statute.
See general remarks on forgery.
Upon the trial of aiiy indictment for any offence against
this section, the jury may, if the evidence warrants
it, under sect. 183 of the Procedure Act, convict the
prisoner of an attempt to commit the same. — 2 Rvss. 874.
FORGERY.
606
exOmnf. or blank E^,k ^i bin T'' '"'"' T'" '''•"'' '""'' ''"1 »'
c. 19, .. 16. 24.26 r.. «. 98, . itir ""''"'"""""'-^"a K.,
/«&(«««* The Jnvora for 0„r Udy the Queen
»po„ theT oath present, that A. B. on fc,o„L,sly
and without lawful authority or excuse, had in his custc^y
aad possesion five forged bank notes for the payment o^
ten do lars each, the said A. U. then well knowing the said
aevm bank notes and each and every „f them res^^
hvely to be forged ; agamst the form of the statute in such
ose made and provided, and against the peace of Our Lady
the Queen her crown and dignity.-^r,MoH 596 • 2
Burn, 682. >",,«,
In & v. MowUy R. & R, uo, it was hold, that every
attermg molnded hav.ng in custody and possession, and
by some of the judges, that, without actual possessi;n if
the note, had been put in any place under the prisoner's
coo rol, and by his direction, it was a sufficient possession
withm the .(atute. See now sect. 2 ar.ie I»*^«=s™'>
Upon the trial of any indictment for any offence under
this .,ecfon the jury may, if the evidence warrants it
anderscct. IP" o. the Proc^dun. Act, convict the .visoner
01 an attempt to commit the same.— 2 Rum STi '
Eeld that the alteration of a $2 Dominio'n note to
oae of the denomination of «20, such altemtion consisting
m he addition of a cypher after the figure 2, wherever thai
figure occurred in the margin of the note, was forgery, and
TaiTlTRl/s' ' "''™'^' «herefor.-rA.U» v.
See sec. 129, Procedure Act.
Iff
FORGERY.
MAKING PAPER AND ENGRAVING PLATES FOU BANK
NOIES, ETl.
20. Every one who, without lawliil authority or excuse, tiit , oot
whereof nhall lie on him, uiakea or usee, or knowingly has in Uig
custody or posHession any frame, mould or instrument for the mak iig
of paper used for Dominion or Provincial note", or for bank notes,
witli any v/ords used in euch noteH, or any part < f bui li word-,
intended to resemble or pass for the same, visible in the nbstance
of the paper, or tor the mak inf:j of paper with curved or waving bar
lines, or with laying wire linen thereof, in a waving or curved shape,
or with any number, num or amount, expressed in a word or wonlH in
letters, visible in the substance of tlic paper, or with any device or
distinction peculiar to and appearing in the substance of the ]> per
used (or euch noten, reppectively,— -or makes, uses, sells, exposes for
sale, utters or dispot'f of, or knowingly has in hi custody or pos-
Pession any paper whatsoever with any words used i 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 curvod 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 in the substance of the
paper, or with any device or distinction peculiar to and appearing in
the substance of the paper used for any such notes, respectively,— or
by any art or contrivance, causes any such words or any part of such
words, intended to resemble and pass for the same, or any device or
distinction peculiar to and appearing in the substance of the paper
used for any such notes, respectively, to appear visible in the sub-
stance of any paper, o? causes the numerical sum or amount of any
such note, in a word or words in letters to appear visible in the 8ul»-
stance of the paper, whereon the same is written or printed, is guilty
oi' felony, and liable to fourteen years' imprisonment. — 32 33 F., c,
19, s. 17. 24-25 v., c 98, s. 14, Imp.
21. Nothing in the next preceding section contained shall prevent
any person from issuing any bill of exchange or promissory note,
having the amount thereof expressed in a numerical figure or figures
denoting the amount thereof in pounds or dollars, appearing visible
in the substance of the paper upon which the same is written or
printed, or shall prevent any person from making, using or selling
any paper having waving or curved lines, or any other devices in the
nature of water marks visible in the substance of the paper, not being
bar lines or laying wire lines, provided the same are not so contrived
'OROEHY.
507
M to form the groundwork or tettiire of »},« ,.a
waving or curved, lavin.. wir« iTn i! \ '^ P^*"' "' '" ••^'««''ible the
the paper u«ed Tor Dol^SjoT ''p" ''""'. '"' '^^ -«'— ksof
DominioDorProvincialnote orUnr 7 "«'*' Purporting to be a
r. ... ^» o*^ i>**nk note, or to fipn M<i..i, rk • .
or Provincial note, or bank note, or to be a ^rt nf n ^^^'l^'^'^"
Provincial note, or bank note ^' ^.^ ^ .P^'^ of ^uy Dominion or
character resembling or appa;ntv'r;; T ""^ '"'"''' "<^"^ «'
«cription to any sucS'DomE "^ :t^ 1" "T\"'^ ^"'•
8foresaid,-or uses any surh n1«.I '^""'^ "<='*' "ote, or bank note, as
anyothe/instrumenro'rdevL' t tlTeT^^"''"^ °""'' ""'^'•"'' "''
note,or - ^t ofsuch note^rknoX rt^'-T'"'"^^'''"^^''"^
-ion an,.uch plate, iood. 'r^f ottr 1 tiaT^ ^a " ^
instrument or device.-K,rkn.vir,gly offers utteT2 ?^ '""''
off, or has in his custody or possession l;.v * ^''' ""^ ""^ P"^
blank Dominion or ProvfncTaUo L ' h / ^"'^' "P^" ^'"«^ *»y
note, or any name, word T *''''' ^^ P"' "'^ ""•>' «»«'»
intended to Lemb , a, , such sX", """''"«' ^'^ '^PP*-""^
guilty of felony and haTie t^ IrL^ ^ "' ■" ""'^' "'" P-*'"^"^' '«
c i6 s 14 32-33 F ^ o ,„ ^^*'"* "nprisonment.-Sl F..
4b, .. 14. 32-33 v., c. 19, *. 19. 24-25 V., c. 98. ,. 16, /«^. '
23. Every one who, without lawful authorifv n. »
whereof 8hall lie on him, en-^raveror i""'°"*^ ""' '^f ««' »he proof
plate whatsoever, or up^n aC wLi ? '^"^^"'«.'»*'^^« «P0» any
word, number, figure, device cLZ!' ^^ '"'"" '""'^"'''' ^»3^
taken fron, which re em be!' tlT "" "i"^""'"*' "^' ''"P^^^^'*^^
any part or a Dominion o^;VoW:iarro^^ ^^ ^«^^-^'«
knowingly has in his custody o ","«;„ an^s "^'^ "^'^ "'^
stone or other material, or any otW in ? *"^'"«^ P^*'^' ^ood,
impressing or making uL a„v 1 '"'''^"'"«»* <"' ^eyice for the
word,„u.L, %ureyara te;L^orm::t'i:;'" "^k:'*^'^'^^
apparently intended to resemble any nTnr 1' "^^"\'"^««'" ^'««' ^^ i«
-i^.-r k„owingly offers, ut r^d^^s X^pt r^^ Tr hf"^
his custody or possession any paner or mu.l ! F \ ' ^^ "'
there is an impression of any suc^ matter !« T'^"-"^.'/'*^" ^'^'^'^
felony, and liable to fourteen years' Tmnri T'o^' '«g"''^3^«f
».20. 24-25 r., c. 98. ,. 17?/^;'' '™pnsonment.-32-33 T., c. 19,
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23 WEST MAIN STREET
WEBSTER, N.Y. 14580
(716) 872-4503
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50d
FORGERY.
24. Every one who, without lawful autliority or excuse, tlie proof
whereof ehali lie on him, makes or uses any frame, mould or instru-
ment for the manufacture of paper, with the name or firm of any
bank or bo<ly corporate, company or person carrying on the business
of bankers, appearing visible in the substance of the paper, or know-
ingly has in his custody or possession any such frame, mould or
instrument, — or makes, uses, sells, or exposes for sale, utters or
disposes of, or knowingly has in his custody or possession any paper,
in the substance of which the name or firm of any such bank, body
corporate, company or person ap|.)ears visible, — or, by any art or
contrivance cauees the name or firm of any such bank, body corporate
company or other person to appear visible in the substance of the paper
upon which the same is written or printed, is guilty of felony, and
liable to fourteen years' imprisonment. — 32-33 F., c. 19, *. 21. 24-25
V.) c 98, s. 18, Imp.
25. Every one who forges or alters, or offers, utters, disposes of
or puts off, knowing the same to be forged or altered, any bill of
exchange, promissory note, undertaking or order for payment of
money, in whatsoever language or languages the same is expressed, and
whether the same is or is not under seal, purporting to be the bill,
note, undertaking or order of any foreign prince or stale, or of any
minister or officer in the service of any foreign prince or state, or of
any body corporate or body of the like nature, constituted or recog-
nized by any foreign prince or state, or of any person or company of
persons resident in any country not under the dominion of Her
Majesty, and every one who, without lawful authority or excuse, the
proof whereof shall lie on him, engraves, or in anywise makes upon
any plate whatsoever, or upon any wood, stone or other material, any
bill of exchange, promissory note, undertaking or order for payment
of money, or any part of any bill of exchange, promissory note, under-
taking or order for payment of money, in whatsoever language the
Bame is expressed, and whether the same is or is not, or is or is not
intended to be under seal, purporting to be the bill, note, undertaking
or order, or part of the bill, note, undertaking or order of any foreign
prince or state, or of any minister or officer in the service of any
foreign prince or state, or of any body corporate or body of the like
nature, constituted or recognized by any foreign prince or state, or of
any person or company of persons resident in any country not under
the Dominion of Her Majesty, or uses or knowingly has in his
custody or possession any plate, stone, wood or other material, upon
which any such foreign bill, notCn undertakin-; or order, or any part
FORGERY.
609
thereof .8 engraved or made,-or knowingly offers, utters, disposes of
or put. oflf; or has ,n h.s custody or possession any paper upon which
any part of any such foreign bill, note, undertaking or order is made
"' ^T t ':.^^'^'' "' '■''""^' *"*^ "^'^'^ ^ ^o»'teen years' iZ^^l
,nent.-32.33 F., c. 19. s. 22. 24-25 V., c. 98, .. 19, Imp. ^
The first part of this section is not in the English Act
As to what is a criminal possession— see, ante, sec 2
Upon the trial of any indictment for any offence under
these sections, the jury may, if the evidence warrants it
under sect. 183 of the Procedure Act, convict the prisoneJ
of an attempt to commit the same.— 2 Ruas. 874
It was held in R. y. Brackenridge, 11 Cox 96,'that it is
an offence, under sect. 16 of the Imperial Act (sect. 22 of
our act), feloniously, and without lawful excuse, to engrave
upon a plate in England a note of a bank in Scotland or
mthe colonies; but see 37 L. J, M. C. 88. '
In R. V. Keith, Dears 486, a decision was given on
what is a part of a bank note, but Greaves, note a, 2 Russ
874, questions the legality of the decision
R. y-Jl^rshaner, 1 Moo. C. C. 466 ; R. v. Harris, and
R. V. Balls, I Moo. a a 470, are cases under a clause
similar to sect. 26. ante, as to foreign bills and notes
In R V. ffannon, 2 Moo. C. C. 77, the having, inEng-
land, m possession, a plate upon which was engraved a
note of the Bank of Upper Canada, was declared to be
within the then existing statute.
In R,v. Rinaldi, L. and C. 330, it was held, that the
taking of a '' positive" impression of a note on glass by
means of the photographic process is a " making " of a note
:f ^ 'itf I" °- ''•' '• '' («-^- ^^' -^«' o7oTr
statu te although the impression so taken is evanescent
and although it cannot be printed or engraved from until it
has been converted into a " negative. » The report of this
case gives at fuU length a copy of the indictment therein
; !
H: liii
510
FORGERY.
If several concur in employing another to make a for-
ged instrument, knowing its nature, they are all guilty of
the forgery. — R. v. Mazeau, 9 0. and P, 676. •
See sees. 114, 131 and 132 of Procedure Act, as to
indictment, and sec. 55 as to search warrants.
DEEDS, WILLS, BILLS OF EXCHANGE, ETC.
26. Every one who, with intent to defraud, forges or altera or
offers, utters, disposes of or puts off, knowing the same to be forged or
altered, any deed or any bond or writing obligatory, or any assignment
at law or in equity of any such bound or writing obligatory, or forges
any name, handwriting or signature purporting to be the name,
handwriting or signature of a witness attesting the execution of any
deed, bond or writing obligatory, or offers, utters, disposes of or puts
off any deed, bond or writing obligatory, having thereon any such
forged name, handwriting or signature, knowing the same to be
forged, is guilty of felony, and liable to imprisonment for life,— 32-.33
v., e. 19, s. 23. 24-25 F., c. 98, s. 20, Imp.
Indictment ..a ceitain bond and writing obligatory
feloniously did forge, with intent thereby then to defraud
against the form
(2nd Count) that the said J. S. afterwards, to wit,
on the day and year aforesaid, feloniously did offer, utter
dispose of and put off, a certain other forged bond and
writing obligatory, with intent thereby then to defraud,
he the said J. S. at the time he so offered, uttered, dispos-
ed of and put off the said last-mentioned forged bond and
writing obligatory as aforesaid, well knowing the same to
be forged, against the form — Archhold.
A power of attorney is a deed within the meaning of 2
Geo. 2, c. 25, and forging a deed is within the statute,
though there may have been subsequent directory provi-
sions by statute, that instruments for the purpose of such
forged deed shall be in a particular foi-m, or shall comply
with certain requisites, and the forged deed is not in that
I
POROHiy.
511
form, or doea not comply with those req„isife« n .
the : ,„efit of his creditor "r Z u ''"?'"^ *" ^- ^"^
for.„ additional advant' co^vr^d t TT:' \ f/"'
the property to whieh the'deeds Cwrd t^^^'f/'
tins, the prisoner E. execuM « w. V^r ^ ■*"<*
other prisoner of a C^ontr an" Z" ^^
for a long term of vearo • ^-,f fu- j , conveyed to G.
dated before the JvTa'nee yt atd bT f ^''. "■""
this deed, the prisoners resisted G'stiu; t^ ^ ""' '"^■'
this part of the land. . .■-« that ,h\ , ! P»»»«^""i of
.hepu^seofdef.ndi„sro:'::Lrfrrrt^^^
a man m^y be guilty of fomery by makin, » f ?' , ^ '
his own „ame.-A v. £iuL^7c7sll "
deed within this -tion^^.^ f^';':/; ^ j,""' *
ofthe Procedure Act. conviW fk^ • """«r sect. 183
to commit the same ' P"'""^' °^ ^^ ^^^"^Pt
'I: ':;i d?:;.:^;r:;t;rr r„o'^'r • ^^^^^^ ^^ ^'^-^ or
or altered, any wui, te.t^rneTc^l^l 27, ''" """ ^^ ^'« ^-^^^
« guilty of felony, and liable oTn ' ^' ^'^^n'^'-tary instrument.
512 FORGERY.
Indictment— feloniously did forge a certain
will and testament purporting to be the last will and testa-
ment of one ......... with intent thereby then to defraud,
against the form
(2nd Count) did offer, utter (oHnthelast
precedent) — Archhold, 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.—- B. v. Tylney, 1 Den. 319.
Forgery may be committed by the false making of the
will of a living person ; or of a non-existing peison. — R, v.
Murphy, 2 East, P. C. 949 ; B. v. Sterling, 1 Leach, 99;
il. v. Coogan, 1 Leach, 449 ; E. v. Avery, 8 C. d; P. 596.
So, though it be signed by the wrorg christian name of the
person whose will it purports to be. — B. v. Fitzgerald, 1
Leach, 20.
Upon the trial of any indictment for any offence under
this section, the jury may, if the evidence waiTants it,
under sec. 183 of the Procedure Act, convict the prisoner
of an attempt to commit the same.
28. Every one who, with intent to defraud, forges or alters, or
offers, utters, disposes of or puts off, knowing the same to be forged
or altered, any bill of exchange, or any acceptance, indorsement or
assignment of any bill of exchan or any promissory note for the
payment of money, or any indorseuiv nt on or assignment of any such
promissory note, is guilty of felony, and liable to imprisonment for
ife.— 32-33 v., c. 19 «• 25. 24-26 F., c. 98, s. 22, Imp.
Indictment— a certain bill of exchange felo-
niously did forge, with intent thereby then to defraud;
agaii^st the form
(2nd Count) did offer, utter as form
under see. 23.
FORGEKY.
613
w.t on the day and year last aforesaid, having i„ hi,
custody and poaseaaion a certain other bii of efcl«
felon.o„aly d,d fo-ge on the aaid last mentionedrU rf
exchange an acceptance of the aaid laat mentioned b °f
exchange, wh.ch aaid fo,«ed acceptance i, aa followa thTt
B aay : (set U ^ ^^baiim) with intent thereby then
to defraud, agamat the form ... . ^
(Uh Count.) that thTsaid J. S afterward,
.. w.^ on the year and day h«t aforesaid, hi v^T^^
custody and poasesaion a certain other bill of exchan«,
oowh,ch aa,d last mentioned bill of exchange w^thfn
wntten a certam forged acceptance of the aafd last men"
ejoned b.U of exchange, which aaid forged a^eptanW
he aa.d laat mentioned bill of exchange ia aa foUowa^hai
. to say : (setU ^ .^i^^ ^e, the said J S , oVfte
ay and year last aforesaid, feloniously did offe, utte'
«pose ofand put off the said forged acceptance of tkelaid
tot me„t«,ned Wl of exchange, with intent thereby trju
to detaud. he the aaid J. S. at the time he so offered
ottered, diaposed of and put off the said u.„^a , •
or*e said last mention^ bill ofLt/X r^g'
the said acceptance to be forged, against the form *
fiZ "* ** '^^'"'''^' '^ -»*/- iVoi
{Uk Omnt.) that the aaid J. S afterward,
.ow,t,on the day and year last aforesaid, havtrrS
«todya„d paaseaaion a certain other hill of exchange
etaous^ did forge on the back of the said to men!
oned bUl of exchange, a certain indoraement of the al,d
b.U of exchange, which said forged indorsement ia^
II
\A I
r;!f:fl
;8i
•iir
FOBOSRT.
follows, that is to say i (set it <wi verbatim) with intent
thereby then to defraud, against the form
(Qth Count) that the said J. S. afterwards, to wit,
on the day and year last aforesaid, having in his custody and
possession a certain other bill of exchange, on the back of
which said last mentioned bill of exchange was then writ-
ten a certain forged indorsement of the said last mentioned
bill of exchange, which said last mentioned forged indorse-
ment is as follows, that is to say : (set U out verbatim)
he, the said J. S. on the day and year last aforesaid, felo.
niously did offer, utter, dispose of, and put off the said last
mentioned forged indorsement of the said last mentioned
bill of exchange, with intent thereby then to defraud,— he,
the said J. S. at the time he so oft'ered, uttered, disposed of
and put off" the said last mentioned forged indorsement
of the said last mentioned bill of exchange, well knowing
the said indorsement to be forged, against the form
From the above precedent, an indictmeiit may readily be
framed for forging and uttering a promissory note, merely
substituting for the words *' bill of exchange " the words
" promissory note for the payment of money " and omit-
ting, of course, tho counts as to the acceptance.—
Archbold.
A bill payable ten days after sight, purporting to have
been drawn upon the Commissioners of the Navj , by a lieu-
tenant, for the amount of certain pay due to him, has been
holden to be a bill of exchange. — R. v. Ckisholm, R. & R.
297. So a note promising to pay A. & B., " stewardesses "
of a certain benefit society, or tiieir " successors," a certain
sum of money on demand, has been holden to be a promis-
sory note V ithin the meaning of the Act. It is not neces-
sary that the note should be negotiable. — R. v. Box, R.&R,
300. An instrument drawn by A. on B., requiring him to
J'OROERT.
ith intent
ds, to wit,
istody and
le back of
;hen writ-
nentioned
i indorse-
verbatim)
isaid, felo-
e said last
mentioned
raud,— he,
lisposed of
dorsement
1 knowing
rm
readily be
te, merely
the words
and omit-
jptance. —
ig to have
, by a lieu.
1, has been
n, E. & R.
t'ardesses "
' a certain
! a prorais-
not neces-
)«, R.&R,
ring him to
615
pay to the administrators of C a ppi4^,«
time .. without ^^.^rl\ XZZ:Z: T'"
Kmnmr, 2 M. ^ Hob 117 <j„ ft '""'wge— A v.
son named as drawr'tho d.f / .""^^ """^ ^ "° P*'"
Hawkes. 2 Moo. O. C Z Fot ,h "' '''"^'"'S'-A v.
acceptance is a sort of ,1„ i . "^ "' P"'""* «>«
not a biU of exohange.-ijT'C. 2 ifr™"!*'
In R. V. Mopsey, 11 Cox 14^ fk ^^^-
purported to beaVufe^t^tta-^^^^^
t was so forged the document^. „„S It. by th!
0., ro™ of a bir:ferhangt burr;r: 'r: "-"■
to pay to his own order, and purportZT if a 7'*
the drawer, and «,cepted hy^ZiZ^, . T^ '^
indictment for forger/or utLilg, b^ r^I^ rlT, "^
e.cha„ge._ie. v. BartUU. 2 il^' ^ S^'te" But
instrument payable to the older of A^.H H . ^ "
Messrs. P. & Co banker, •' „. v ,7 ^"'™"^ "-1*
cribed as a biU ^f e«^l "" '"''\'° ."^ P'»P«'ly "es.
OQi; Ff • excnange — A y. s^^j 2 J/oo C ^
95 It IS necessary that the promissory U s^'nid t
forOuipaymmt of mowy only to be within ft !. ^
a seaman's advaioe no^' H„ P^"" "^ '"""g^*'
o-ttering . ^T:;o^;-ZTo^: f^^
payment of money JJ^W fhof „ , ^' ^^®
was not a p™.isLy t^' roMeTfrl"'™"" ■""'
«ney, and that the Lctment Z L^^.^^^T.^
advance note was conditional and thlT Vv ~ "^
Li
.: ■ i*
•t , 'I
! ■ i I ■
.m^
1
^M
1- '"
^m
516
FORGERY.
of a bill, while the bill is in the course of completion, in
order to make the acceptance appear to be that of a differ-
ent existing person, is a forgery. — R, v. BlenMnaop, 1
Den. 276. See M. v. Mitchell, 1 Den. 282 A nursery-
man and seedsman got his foreman to accept two bills,
the acceptance having no addition, description or address,
and afterwards, without the acceptor's knowledge, he added
to the direction a false address, but no description, and
represented in one case that the acceptance was that of a
customer, and in the other case that it was that of a seeds-
man, there being in fact no such person at the supposed
false address : Held, that in the one case, the former, he
was not guilty of forgery of the acceptance, but that, in
the other case, he was. — R v. Epps, 4 F. <S; F. 81. A bill
of exchange was made payable to A, B, C, D, or other
executrixes. The indictment charged that the prisoner for-
ged on the back of the bill a certain forged indorsement,
which indorsement was as follows (naming one of the
executrixes); Held, a forged indorsement, and indictment
sufficient. — R. v. Winterhottom, 1 Den. 41. Putting off
a bill of exchange of A, an existing person, as the bill of
exchange of A, a fictitious person, is a felonious uttering of
the bill of a fictitious drawer. — R. v. Niahett, 6 Cox, 320.
If there are two persons of the same name, but of different
discriptions or additions, and one signs his name with the
description or addition of the other for the purpose of
fraud, it is forgery. — R. v. Webb, died i/n Bayley on Bills,
432.
Upon the trial of any indictment for any offence under
this section, the jury may, if the evidence warrants it, under
sect. 183 of the Procedure Act, convict the prisoner of an
attempt to commit the same.
There can be no conviction for forgery of an indorse-
FOROEKY.
517
as
,uch._A V. Harper, 14 Cox ^^^""P''''' ™trument
by A. M. a„d indred byT 3,T /" f" * ""'' '"»''»
payable to the order of A D M .„/ ""^ *""» "P
and brought it back with'the "me iTr'^^'r"^
wa, then signed by A. M. and ^ I l^^'^I^
indorsement whs a foraerv anrl r..,- ' ^^®
fo^ng an indorsement fn a prolCrTlT;'"'"''' '"
Mo^. n Co. U3; and M. .:jrZ.t.fQ siVs
that the conviction conlH n^f k« ^ • ' ' v. -o. x/. 78,
»e..t ae r„n.ed aa CL't"!! r:! ,"0" th^ t"^
name at the time of the forger; wL". '
note ; nor could it stand nn ,1. f^ * promissory
it wa^ signed it was tetr 1 """ '"' "'"*"''8'« -ft^r
Jfoi-e^ 13 0. Jit. *'"""' P»33ession._JJ. v.
An indictment for foraerv nf o «« •
allege that the promissoTnote l^TZ' "^ ""^^
mney.-^Kelly y R ^ <?/L . n ^ Payment of
^ e^ty V. if., 3 Stephens' Ihg. f Quebec,) 222
or altered, any undertaking wa rafl o^T'"^ u '''"'' ^ '^ ''^'-g^d
the payment of money or fo T^deHr '' ""'"^""'^ ^-^ •■^^"e^t for
orchatteis,or of any^ot^rbiSl 1'!^^::^;;;^-^ -^ «-^«
money, or for procuring or giving eZu ^ ""* P*^'"^"^ ^^
oraasignmentofanyauch undertaking *"^ 'ndorsement on
request, or any accountable rece 1 /' "'T"'' °'^'''' ""^'^^^^'^^ or
or for goods, or for any not mior'oP '"''' ""' ""^'^^ '^' '"on^y
money, or any indor J„, ^t in o Z'^Ze^T '" '''' P*^™«»' «'
receipt, or any account, bookJtkZ'H,T ""^•'"'^^ accountable
node capable of being read,ZliZ^'r^^^^^^ or printed, or othermse
Ml
'?«r
i . .1 I-! -.- it.!
vl
rl
■I!
518
fOROBRY.
Tho words in italics are not in the English Act ; they
constitute aa important extension of the clause.
Greaves says : " This clause is new as far as it relates to
any authority or request for the payment of money, or to
any authority for the delivery or transfer of any goods, etc.,
or to any indorsement on or assignment of any such under-
taking, warrant, order, authority, request or accountable
receipt, as is mentioned in the clause. — M. v. Aracott, 6
C. & P. 408, is therefore no authority on this clause. The
words ' authority, or request for the payment of money' are
introducpd to get rid of the question 30 commonly arising
in cases of this kind, whether the forged instrument were
either a warrant or order for the payr-ent of money.
Requests for the payment of money were not within these
words."— i2. V. Thorn, C. & M. 206 ; 2 Moo. C. C. 210.
It would be a waste of space, and of no practical use to
refer to the cases that have occurred on these points ; for,
whenever there is any doubt as to the legal character of
the instrument, different counts should be inserted describ-
ing it in each by one only of the terms warrant, order,
authority or request A forged indorsement on a warrant
or order for the payment of money was not within the
former enactments. — R. v. Aracott, Q C. & P. 408. But
this clause includes that and other forged indorsements.
Indictment. — feloniously did forge a certain
warrant for the payment of money, with intent thereby
then to defraud, against the form
(2nd Count.) feloniously did offer, utter
(as, ante, form under sect. 23.) Add separate counts, as
suggested by Qr eaves, supra. See R. v. Kay, 11 Cox,
529, under next section. In R. v. Ooodvnn, March,
1876, Q. B , Montreal, the above form was held good,
on motion in arrest of judgment.
"^H^'
FOROEBT.
A draft upon a banker, although it be post-dated ,'« .
leack. 226 ; A y. SmUk. 1 Den 79 f.^ "■ ^'^PP<'f- 1
V. y„to»A 2 East. P. a 942. A .M^XI^Z^t
a b,ll „f exol«„ge, but without any drawee's name Znot
of money. It would seem, howevef t„ h. '^^"f"'
/nKnn fni- th« .,. ^ . noweYef, to be an nndkr.
T. nil^i rr™' °' """^y *'"■'" "•« statute-
576. The statute applies as '^.f '.^l' wnl^uTltf ,^
posed party to the instrument.- A v. atone, 1 Den 181
An mstrument. professing to be a scrip certifime of a
^U^ in the present a::irwourrrr t^
As to what is a warrant or order for fho av
ofgood, thef„,Wi„, cases may be eit "/ Jl^wX^
kers ticket .s a warrant for the delivery of goods^ff !"
Horruon BeU, C. 0. 158. At the London d^f^ .
F"on br.ng,ng a "tasting order" from a me'tj
h.vmg wme there, i. not allowed to teste until ^e orSe
'i/
r i i-vri '.
lib
520
FOBGERY.
has across it the signature of a clerk of the company ; the
defendant uttered a tasting order with the merchant's
lidme forged to it, by presenting it to the company's clerk
for his signature across it, which the clerk refused ; it was
held to be, in this state, a forged order for the delivery
of goods within the statute. — B. v. Illidge, 1 Den. 404.
A request for the delivery of goods need not bs addressed
to any one. — K v. Carney, 1 Moo. C. C. 351 ; R, v.
Cullen, 1 Moo. G. C. 300 ; JR. v. Fulbroke, 9 C. <& P. 37]
Nor need it be signed by a person who can compel a per-
formance of it, or who has any authority over or interest
in the goods. — R. v. Thoma», 2 ilfoo, C. C. IQ; R. v.
Thorn, 2 Moo. C. C. 210. Formerly, if upon an indict-
ment for the misdemeanor of obtaining goods under false
ptetences, a felonious forgery were proved, the judge had
to direct an acquittal. — R. v. Evans, 6 C. <fc P. 6.^8 ; but
noW; see sect. 184 of the Procedure Act.
As to what is a receipt, urder this section. — As
remarked L,y Greaves, supra, tha additions iu the present
clause render many of the cases on the subject of no
practical importance. A turnpike toll-gate ticket is a
receipt for money within this aection. — R. v. Fitch, R. v.
Ecwley, L. & C. 159. If a person, with intent to defraud,
and to cause it to be supposed contrary to the fact, that
he has paid a certain sum into a bank, make in a book,
purporting to be a pasa-book of the bank, a false entry,
which de-iotes that the bank has received the sum, he is
guilty of forging an accountable receipt for money. —
E. V. Moody, L, <fc C. 173; R. v. r.-nith, L. & C. 168.
A document called a " clearance " issued to members of
the Ancient Order of Foresters' Friendly Society, certified
that the member had paid all his dues and demands, and
authoriisd any Court of the Order to accept the bearer as
FORGERY.
621
a clearance member : Hdd, that this was not a receipt
for money under this section.— i2. v. French, 11 Cox,
472. An ordinary railway ticket is not an acquittance',
or receipt, within this section, It. v. Oooden, 11 Cox,
672 ; but now, by sect. 33, post, forging a railway ticket
is a felony. The prsoner being pressed by a creditor
for the payment of £35 obtained further time by giving
an I. O. U. for £35 signed by himself, and also pur-
porting to be signed by W. Ws name was a forgery ;
held, that the instrument was a security for the payment
of money by W., and that the forgery of his name was
a felony within this section.— jR. v. Chambers, 12 Cox,
109.
Upon the trial of any indictment for any offence under
this section, the jury may, if the evidence warrants it,
under sect. 183 of the Procedure Act, convict the prisoner
of an attempt to commit the same.
An indictment for forging a receipt under this section
must allege a receipt either for money or for goods.
R. V. McCorkillj 8 L. C, J. 283. But the intent to
defraud any particular person need not be alleged. — R. v.
Hathaway, 8 L. C. J. 235.
The evidence of the uttering of a forged indorsement
of a negotiable check or order is insufficient to sustain a
conviction for uttering a forged order or check, under
sec. 29 of the Forgery Act.— ii. v. Cunningham, CasseVs
Big. 107.
The prisoner was indicted for forging a request for the
payment of money, the said request consisting in a forged
telegram upon which he obtained $85. Held, a forgery
as charged.— iJ. v. Stewart, 25 U. C. C. P. 440.
30. Every one who with intent to defraud draws, makes, signs,
accepts or indorses any UU of excliange or promissory note, or any
' ' I,
•j-4
I • >■
522
POHrEHY.
undertaking, warrant, order, authority or request for the payment of
money, or for the delivery or transfer of goods or chattels, or of any
bill, note or other security for money, by procuration or otherwise
for, in the name, or on the account of any other person, without
lawful authority;or excuse, or oft'ers, utters, disposes of or puts off any
Huch bill, note, undertaking, warrant, order, authority or request, so
drawn, made, signed, accepted or indorsed, by procuration or other-
wise, without lawful authority or excuse, knowing the same to have
been so drawn, made, signed, accepted or indorsed, as aforesaid, is
guilty of felony, and liable to fourteen years' imprisonment.— 32-33 V.
c. 1 9, ». 27. 23-24 V., c. 98, *. 24, Imp. ''
Greaves says : •* This clause is new, and was framed in
order to make persons punishable, who, without authority,
make, accept, or indorse bills or notes " per procuration,"
which was not forgery under the former enactments.
Haddock's case, 2 Ruas. 947 ; R. v. White, 1 Den. 208."
Indictment, as under sect. 28. See general remarks
on forgery.
A deposited with a building socitty £460, for two
years, at interest, through the prisoner, who was an agent
of the society. Having obtained the deposit note from
A,, who gave it up on receiving an accountable receipt for
£500, being made up by the £460, and interest, the pris-
oner wrote, without authority, the following document:
" Eeceived of the S. L. Building Society the sum of £417
13s. Od., on account of my share. No. 8071, pp., Susey
Ambler, — William Kay," and obtained £417 13s. Od., by
means thereof and giving up the deposit note. The jury
having found that, by the custom of the society, such
documents were treated as an " authority to pay,'' and as
" a warrant to pay," and as " request to pay " money, the
prisoner was convicted under 24-25 V., c. 98, s. 24 (sect.
30, ante, of our statute) : held, that the conviction was
right.— i2. v. Kay, 11 Cox, 529.
Upon the trial of any indictment for any offence under
FORGERY.
523
J! X
h • if!
this section the jury may, if the evidence warrants it
under sect. 183 of the Procedure Act. convict the prisoned
ot an attempt to commit the same.
31. Whenever any cheque or draft on any banker is crossed wifl,
the name of a banker or wWK *«,^ ♦, "»"«.er ih crossed with
" and company » tl^:X.:Z^ZZ vTy ot' tt^ ^t
intent to defraud, obliterates, adds to or sltTrLnTLcrcr: ^^'n; o'
offers, utters, disposes of or puts off any cheque or draft whe^TnlnJ
such obhteralion, addition or alteration has been made know, "th«
n,ent Jife.-32.33 F., c 19, ,. 28. 24-26 V., c 98. •. 26. Imp.
32. Every one who forges or ft-audulently alters, or offers utters
deposes of or puts off, knowing the same to be forgei or fS„"S
a tered. any debenture issued under any lawful authority whatsover
« her w>U„n Her Majesty's dominions or elsewhere, is Sty of
::29:^'r2j'vte:ur2rc'^"^
On Sec. 31 Greave's says : « This clause is so framed
as to meet the case of a draft in either issue with a
crossmg on it, or crossed after it was issued »
indyc'Jmenf '' ^^' ""^ '°^°* ^ '^'^'^"^ '' ""^''^^ ^^ ^^
PASSENGER TICKETS.
This clause is the 14th of c. 94. C. S. C. It will meet
such cases as M. v. Oooden, 11 Cox, 672.
RECORDS, PROCESS, INSTRUMENTS OF EVIDENCE, ETC.
34. Every one who forges or fraudulent^ alters or offers utters
disposes Of or puts off. knowing the same to be forged, or f7audule^ W
kered. any record, writ, return, panel, process, rule, order warran
mterrogatory.depos.tion,affidavit,affirmation,recog;izaai::;2;
524
FORGERY.
actionem, warrant of attorney, bill, petition, process, notice, rule
answer, pleading, interrogatory, report, order or decree, or any original
document wkateoever of or belonging to any court of justice, or any
document or writing, or any copy of any document or writing, used or
intended to be used as evidence in any such court, is guilty of felony
and liable to seven years' imprisonment.— 32-33 V., c. 19 *. 33 24-25
v., c. 98, *. 27, Imp.
35. Every one who, being the clerk of any court or other officer
having the custody of the records of any court, or being the deputy of
any such clerk or officer, utters any false copy or certificate of any
record, knowing the same to be false ; and every one, other than such
clerk, officer or deputy, who signs or certifies any copy or certificate
of any record as such clerk, officer or deputy, and every one who
forges or fraudulently alters or offers, utters, disposes of or puts off
knowing the same to be forged or fraudulently altered, any copy or
certificate of any record, or offers, utters, disposes of or puts off any
copy or certificate of any record having thereon any false or forged
n^me, handwriting or signature, knowing the same to be false or forged
and every one who forges the seal of any court of record, or forges or
fraudulently alters any process of any court whatsoever, or serves or
enforces any forged process of any court whafcseover, 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 whatsoever, or a copy
thereof, knowing the same to be false, or acts or prefesses to act under
any such false process, knowing the same to be false, is guilty of
felony, and liable to seven years' imprisonment 32-33 F., c. 19 s
34. a S. U. C, c. 16, a. 16, part. 24-25 F., c. 98, a. 28, Imp.
36. Every one who forges or fraudulently alters, or offers, utters,
disposes of, puts off, tenders in evidence, knowing the same to be
forged or fraudulently altered, any instrument, whether written or
printed, or partly written and partly printed, which is made evidence
by any Act of the Parliament of Canada or of the Legislature of any
Province of Canada, and for which offence no other punishment is in
this Act provided, is guilty of felony, and liable to seven years'
imprisonment.— 32-33 F., c 1 9, s. 35. 39 V., c. 26, s. 14. C. S. C, c. 80,
8. 7, part. 24-25 V., c. 98, s. 29, Imp.
37. Every one who, —
(a) Prints any proclamation, order, regulation or appointment, or
notice thereof, and causes the same falsely to purport to have been
printed by the Queen's Printer for Canada, or the Government Printer
FORGERY.
525
for any Province of Canada, as the case may be, or tenders \. . -a
any copy of any proclamation, order, reLlatl. '*'"'*
which falsely purrwrts to hav^ hlon » "T^uJation or appointment,
the «ame wi^^ted ! ,r " '""''' " ''''''"''' ^"^-^ '^^^
(5.) Forges, or tenders in evidence, knowing the same M h. r ^
any certificate authorized to be made or given tHnV Ac M^
ParJian.ent of Canada nr nf ♦!,» t« • i x ^ ^ ^^^ ' *"e
C.„ad., r„, u,e p»"t; Of e: . f X'- f * l'^;:;"' ''"'""- °«
In ^. y. Po«mer, 12 (?(-»: 236, it was held by Q„ain
J., hat an .„d.otment for fo^cy .nder sect. 28 of IS
Engl,sh Act (sect. 35 of our Act. mprdj muet aUeJe an
.ntent to defraud; but that this averment was L Xa "
m a eount for fravdnUntly altering under the ^Z
sec>on.-The "process" aUeged to have been aIterS"n
that case was an order by two justices of the peace
under the n«,r laws, and was held to fall under the afo^'
said section. ".luxe-
Upon the trial of any indictment for any offence under
these sections, the jury may, if the evidence wamnts it
under sect. 183 of the Procedure Act, convict the prisoner
of an attempt to commit the same.— 2 Rusa. 857.
NOTARIAL ACTS, REGISTERS OP DEEDS, ETC.
38. Every one who forges or fraudulently alters, or offers „ft.r«
disposes of or puts off, knowing the same to be forg^l or 3^ t.
altered, any notarial act or instrument or copy^Z^Lnn^^^^^
autkentioatea co,y t.ereof or any ,roces verS'JlZZor or\Z
copy thereof, or forges or fraudulently alters, ofoffrro^uIlerT dt
poses of or puts off. knowing the same to b^ forged or fraS
aUered, any duplicate of any instrument, or any n emorW affidT f
affirmation, entry, certificate, indorsement dooZT / ^^^a^'^,
made or issue<l u.der the provisions ofTv Act ',1 p 'r ^"''"«'
Canada, or of t.. Legislatu^. of ^^:Z^ ^aL^ ^7^^
\'*'M
i-M
I I
\ i
£26
FOBQEBT.
ing to the registry of deeds or other instruments or documents respect-
ing or concerning the title to or claims upon any real or personal pro-
perty whattoeoer, or forges, or (iouiiterfeits the seal of or belonging to
any office for tlie registry 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, handwriting or
fiignatiire of any person to any such memorial, affidavit, affirmation,
entry, certificate, indorsement, documentor writing required or direct,
ed to be signed by or by virtue of any such Act, or offers, utters, dis-
poses of or puts off any such memorial or other writing as in this
section mentioned, having thereon any such forged stamp or impres-
sion of any such seal, or any such forged name, handwriting or signa>
ture, knowing the same to be forged, is guilty of felony, and liable to
fourteen years' imprisonment. — 32-33 V., c. 19, s. 37. 24-26 V., c. 98,
*. 31, Imp.
The words in italics are not in the Imperial Act. Sec.
183 of the Procedure Act applies. — 2 BtLsa. 939.
ORDEBS OF JUSTICES OF THE PEACE.
39. Every one who, with intent to defraud, forges or alters, or
oflTers, utters, disposes of or puts off, knowing the same to be forged
or altered, any summons, conviction, order or warrant, of any justice
of the peace, or any recognizance purporting to have been entered
into before any justice of the peace, or other officer authorized to take
the same, or any examination, deposition, affidavit, affirmation or
solemn declaration, taken or made before any justice of the peace, is
guilty of felony, and liable to turee years' imprisonment. — 32-33 V., c.
19, s. 38. 24-26 F., c. 98, s. 32, Imp.
R. V. Powner, 12 Cox, 235, is not very clear as to what
is the difference between a " process " of a court under
sections 34 and 35, and an "order" under the present
section. The forgery of an affidavit taken before a Com-
missioner would not fall under this section.
40. Every one who, with intent to defraud, forges or alters any
certificate, report, entry, indornement, declaration of trust, note, direc-
tion, authority, instrument or writing made or purporting or appear-
ing to be made by any judge, commissioner, clerk or other officer of
any court in Canada) or the name, handwriting or signature of any
J'ORGERY.
627
such judge, commisesoner. clerlr «.. «»k «,
Offers. ""-Mi^^se^oroT^utToff: ;'^^^ ^ *'^^^^^^^' -
indorsement, declaration of trust. nZr? ''*'"' '"^'P*^"' entry,
nient or writing, knowing tl.e slL^o U r ?' ""''^"'•">'' '"«^'-"-
of felony, and l.able to fourteen 7^^' hnti^"'**^ '' "'^^^'^' '« «"•"/
- 39. as. u. a, c. 16... i6.p::rzTr:Ts'~r^T ""■' '■ ''>
See general remarks on forgeiy.
ledges any recognizance of bail or anv L ^ . ^'■'^"' ^^'^"ow-
ment. or any deed or other in't u'.n nt befl" If "''""^'"' ^'^ J»<^«-
ry.or other person lawfully authoWz'ed in t.?!?'"'' J"'^«^' "«'«"
felony and liable to seven years' imnr;!. ^'^'"^'f. is «uilty of
24-25 v., c. 98. ,. 34, /mp ^ '•"P'.sonment.-.^-a.J T.. c. 19,/4^
Indictment. — . „„
out lawful authorii;-;; exc;;;-;;,:^""™^'^;;;'- '-'*:
......... then being lawfuUy a«;ho„C"i."-;-h;f "T ™
ack„o«'ledge a certain recognizance of bail in Tk ^
J. N. in a certain ca„,e then peX "n 1 T" ""
(or in the couH of , „u "."«"" ""e said court
...d CD. <iefendant;;^;;;Tthefrrm ""/'Tfi!'
615; 2JeM«s. 1016 — ^MioW,
»»der sect. 183 o/the'Sd ^aV:*:;^ t?"^"" "^
of an attempt to commit the same f™""*'
MARRIAGE LICENSES.
42. Every one who forges or frudulentiv «u
tificate for marriage, or offers, utters dt^etoT ""' '""'"'' ""' '^
license or certificate, knowing the samrCh! . "P"^' ^^"^"3' «»ch
altered, is guilty of felony, and liable TbI '*'''g«d ^••- <ra.,dulently
32-33 r., c. 19, ,. 41. 2/26 V.TIIX 35, ff^''"'' ''"P'-'««"ment.i
REGISTERS OF BIRTHS maddt*^™
"'^^®' MARRIAGES AND DEATHS
43. Every one who unlawfully destroys A.,
causes or permits to be destroyed, iSriJu^^ a^v T^ °'
•"jureu, any register of
528
FORGERY.
births, baptisms, marriages, deaths or burials, authorized or required
to oe kept in Canada, or in any Province of Canada, or any part of
any such reginter, or any certified copy of any such register, or of any
part thereof, or forges or fraudulently alters in any such register any
entry relating to any birth, baptism, marriage, death or burial, or any
part of any such register, or any certified copy of such register, or of
any part thereof, or knowingly and unlawfully inserts, or causes or
permits to be inserted in any such register, or in any certified copy
thereof, any false entry of any matter relating to any birth, baptism,
marriage, death or burial, 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 from any such register,
knowing such writing, or the part of such register whereof such copy
or extract is so given, to be false in any material particular, or forges
or counterfeits the seal of or belonging to any registry office or burial
board, or ofters, 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 liable to imprisonment for life.— 32-33
v., c. 19, s. 42. 24-25 V., c. 98, s. 36, Imp,
44, Every one who, knowingly and wilfully, inserts or causes, or
permits to be inserted, in any copy of any 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 directetJ or
required to be transmitted m aforesaid, or knowingly or wilfully signs
or verifies any copy of any register so directed or required to be trans-
mitted as aforesaid, which copy is false in any part thereof, knowing
the same to be false, or unlawfully destroys, 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 liable to impris-
onment for life.— 32.33 F., c. 19, a. 43. 24-25 F., c. 98, a. 37, Imp.
Indictment under sect. 43 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
FORGERY.
629
day of ,. ■ ,u '*"* "''""='"' »" fte aaid
was not marted to 'the Id on '"'-'" "^ ""'' ^^ ^•
elsewhere, at the time in ^h„ .'f . "" *^'* *»""• «
a-yothertime wharo:;:'':;^:! CLr" ""^^' °-'
^«S;diy^;;e"r:rr^^^^^^
other false entry relating V„» ^ ""^^ of a certain
which said lasf mtSeS^;r::t,r^,^'»''-«^
inserted in a certain register of ™7 .°''"y,""" '"'&'« then
to be kept, and whiSilr I?"' ''^ '^'"'"ttorized
joiw., :^that is to":: ^ J:::;:^::!^;:^ ■; -
fact ^a« oiooe J And fkl . *"* '" *™th and in
their oath afLsaid, ^Lyl^rZ fT':'\ ■"•""
he so offered, uttered, disused „f7nd"?„ffV *! ""'o
ofthe said last mentioned false e^try wlltnelTh "^I
last mentioned false enfri. f « k * i ^^ *^^« said
-..o«„^, ..r.tct'^ ~'r°™
what is now the fi;st part of L^ 43 1 .r^' "^ "°^^^
"John Bowen fpL * ' ^^^^^^^^g^d that
». now he ,^;^Z:S dSn/"^^""^
.; was then and there in t^ t t^.t^"' t;'"
of the said parish of a™;... ,^V '«"'<>■■
was objected that the indi trnrl^trf;;":" • ''
t^- Offences. <^.o^,, ../eci^.T^'^''^-^^^-^
M
f
if
7,'
530
FORGERY.
Statute saying, destroying, defacing " or " injuring. A
second objection was taken that no scienter was charged,
and that the word " knowingly " was not in the indictment.
The indictment was held good.
In B. V. Asplin, 12 Cox 391, it was held by Martin,
B., that upon an indictment under sect. 36 (sect. 43 of
our Act,) for making a false entry into a mai-riage register,
it is not necessary that the entry should be made with
intent to defraud, and that it is no defence that the mar-
riage solemnized was null and void, being bigamous ; also
that, if a person knowing his name to be A., signs another
name without authority, he is guilty, and it is immaterial
that he is a third witness, the Marriage Act only requiring
two.
' Upon the trial of any indictment for any offence under
these sections, the jury may, if the evidence warrants it,
under sect. 183 of the Procedure Act, convict the prisoner
of an attempt to commit the same. — 2 Muss. 939.
DEMANDING PROPERTY UPON FORGED INSTRUMENTS.
45. Every one who, intent to defraud, demands, receives or obtains,
or causes or procures to be delivered or pay to any person, or endea-
vors to receive or obtain, or to cause or procure to be delivered or
paid to any person, any chattel, money, security for money or other
property whatsoever, under, upon or by virtue of any forged or alter-
ed instrument whatsoever, knowing the same to be forged or altered,
or under, upon or by virtue of any probate or letters of adniinisiration,
knowing the will, testament, codicil, or testamentary writing on which
such probate or letters of administration were obtained, to have been
forged or altered, or knowing such probate or letters of administration
to have been obtained by any false oath, aifirmation or affidavit, is
guilty of felony, and liable to fourteen years' imprisonment — 32-33 V.,
c. 19, s. 44. 24-25 V., c. 98, s. 38, Imp.
Greaves says : " This clause is new. It is intended to
embrace every case of demanding, etc., any property
whatsoever upon forged instruments ; and it is intended to
FORGERY.
SSI
include bringing an action on any forced hill nf u
note, or other security for money Th! V ''''^''«^'
be delivered or paid to anv^r« ''''"^' 'P'°'"^« '^
cases wbere one^son by ZZZlTV- '^^"^^"^«
causes money to be paid to Z^^ ^'^'^ instrument
the difficult/which hXrlnt I^ '''' "^ ^^^'^
money by false p.^nce^irS ^1^ ITTo'
224; M. V. G^arreft, i)ear« 232 " '
of the Procod„« Act, a verdic „ 'l ,tv of I r'"- "'
commit the offence could be given by tie ,tv th ' "'' *"
would stand convicted of a foln„, j •" ^' P"^"*'
thi, clause, tbougb Jel Vt^tf^ Z! trt •"''^'
CASES NOT OTHERWISE PROVIDED FOR
wise .ade capable of Llg "Id o off "f :Cd''"^^ '' ''''''-
off any such forged or altered documentor th ^.1, '^''' °'^'' P"'«
to be forged or altered, is guilty of fXla„5r^'.^°^'"S '^e same
for life.-32.33 V., c. 19, s 45,^1 ' *"'^ ''*^'« *« imprisonment
See remarks under sec. 3, ante.
47. If by this or any other Act anv oeraon :« i:»ki .
forforging or altering, or for offering im.n V ^ P««<«hment
off, knowing the JL t^ZZZT^^^^^^^
writing designated in such Act b^^nv a^l if ' *"' '"'*;""""' °'
andsuch instrument or writing, ho^ve Enrr'' T^P^O"'
testament, codicil or testamentary wrilL or IT / k '". '*^ * "^"''
obligatory, or a bill of exchange or 7' J ^' * '**^''' ^^nd or writing
632
rORGERT.
request for the payment of money, or an indorsement on or apaign-
mentof an undertaking, warrant, onier, authority or requewt for the
payment of money, within the true intent and meaning of tliin Act,
every one who forges or alters such instrument or writing, or otterfl,
utters, dispoHesof or puts otFsuoh instrument or writing, knowing tiio
same to be forged or altered, may l>e indicted as an otFcncJer a^nitiMt
this Act, and punifhed accordingly — 32-33 V., o- 19, «. 46. 24-25 f .,
e. 98, s 39, Imp.
4:8. Every one who, in Canada, forges or alters, or offers, uttern,
disposes of or puts oft, knowing the same to be forged or altered, any
writing or matter of which the forging or altering, or the oiriring,
uttering, disposing of or putting ofT, knowing the same to be foij^ed or
altered, is, in this Act, expressed to be an offence, in whatHovfr
country or place out of Canada, whether under the !<.niinion of
Her Majesty or not, such writing or matter purports tu oe made or
has been made, and in whatsoever language the same or any part
thereof is expressed, and every one who aids, abets or counHels the
-commission of any such offence, shull be deemed to be an oH'ender
within the meaning of this Act, and shall be punishable in the name
manner as if the writing or matter purported to be made or wus made
in Canada,— 3?-33 V., c. 19, a. 47, part. 24 26 F., c. 98, s. 40, Imp.
49. Everyone who, in Canada, forges or alters or offers, utters,
disposes of or puts off", knowing the same to be forged or altered, any
bill of exchange, or any promissory note for the payment of money,
or any indorsement on or assignment of any bill of excliunge
or promissory note for the payment of money, or any accep-
tance of any bill of exchange, or any undertaking, warrant, order,
authority or request for the payment of nioney, or for the delivery or
transfer of any goods or security, or any deed, bond or writinfi; obli-
gatory for the payment of nioney (whether such deed, bond or writing
obligatory ia made only for the payment of money, or for tiie payment
of money together with some other purpose), or any iiidorKeniont on
or assignment of any such undertaking, warrant order, aiitliority,
request, dee<l, bond or writing obligatory, in whatsoever place or
country out of Canada, whether under the dominion of Her Majesty
or not, the money payable or 8ecuf»>i bv t.ijh bill, note, undertaking,
warrant, order, authority, requ'-'tii . tkyd, >v»nd or wi.L ng obligatory
is or purports to be payable, cinu m whatsoever lauguage liie Banie
respectively or any part thereof is expressed, and whether hucIi bill,
note, un(iertaking, warrant, order, authority or request is or is not
under seal, and every one who aids, abets or counsels thecoiuniiasion
''^*M,!i»y
»C.-:OKRT.
633
ofany »iioh offonce. shall fi« ^.„ j . .
n„.„i„g OHM. Ao.;J . .^ li'';;,^^ .,^, ,•», «" »«t"d.r „i„,i„ .t.
.^. money pn,fo,M to b. w.bKt;^ ' " """"' """"" •" ■'
foreign bill „r „1 he Ml „ ? '" """""^ " f-Ked
in England a, U ojtl'd ^wmT 's "t Tf
2 Cr. i...«. 446. «, to thia aecttn ' "'^''-
Prisoner was indicted along with W Th. « .
charged W. with foroin, . • , "" ''™' ""•""
Bank of Scotland aS the! !, ".""'' "' ""^ N"""™'
it to have been fo-^d pZ "'* T""' "' ''"'""-K
sory before the fT EvH ^''"'""■8«0 "» an acce,-
Montreal foi uttering ,i™la^' ." '"""^ '""' """^''^ '«
f- the ™n.e pirasthrnS ^w" Tht "''-"^
^h^riCehtxt-^^^^^^^^^^^^^^^
adjoining rooms; th't aC H a„d y had h ""' "™'"'"'
on one charge they admitt«d fi, , °*'' '""'"«
.ad that a nlm Jof rse c ^^fJtteT "■'""; """'" =
F. and H., which were produced Tth! * . T? *^°""<" ™
Before the evidence waTtendid > "'"'' P"'"™'-
prisoner was in compr; v^th w wh ""' "'""'' """ *»
»tte,.d similar notes' EWdenr;! !," T'"^ *^ ""^
ing that a large number of th! n T f """*'*• *'"'-
at a place near whe^theXnetrdT" '"'"'' "'""'"^'*
concealed, as alleged, by S after wr^T"' """ ""^
fl-eW, that the evFdence ^1" . ^'" ""^^^^
the guilt, knowledge of thTpS;^ ^o"' '" "^ "'
10 0. R. 559 , Pnsoaer.— 7%e Q«tee^ v. Bent,
,.•4 i !
I i m
M
ti
534
FOBOEST,
60. Whenever, by apy Act, any person falsely making, forging,
counterfeiting, erasing or altering any matter whatsoever, or utter
ing, publishing, offering, disposing of, putting off or making use of
any matter whatsoever, knowing the Hame to have been falsely made,
forged, counterfeited, erased or altered, -or any person demanding or
endeavoring to receive or have anything, or to do or to cause to be
done any act, upon or by virtue of any matter whatsoever, knowing
■uch matter to have been falsely made, forge«l, counterfeited, erased,
or altered, — or whenever, by any such Act, any person falsely person-
ating another, or falsely acknov/ledging anything in the name of
another, or falsely representing any other person than the real person
to be such real per<ion, or wilfully making a false entry in any book
account or document, or in any manner wilfully falsifying any part
of any book, account or document, or wilfully making a transfer of
any stock, annuity or fund in the name of any person not being the
owner thereof, or knowingly taking any false oath, or knowingly
making any false affidavit or false affirmation, or demanding or
'"eceiviug any money or other thing by virtue of any probate or
letters of administration, knowing the will oii which such probate was
obtained to have been false or forged, or knowing such probate or
letters of administration to have been obtained by means of any false
oath or false affirmation, — or whenever, by any such Act, any person
making or using, or knowingly having in his custody or possession
any frame, mould or instrument for the making of paper, with certain
words visible in the substance thereof, or any person making such
paper, or causing certain words to appear visible in the substance
of any paper, would, according to the provisions contained in any
such Act, be guilty of felony, and be liable to any greater punishment
than is provided by this Act, — if any person is convicted of any such
felony as is in this section mentioned, or of aidiog, abetting, coun-
selling or procuring the commission thereof, and the same is not
punishable under any of the other provisions of this Act, every such
person shall be liable to imprisonment for life.— 32-33 F., c. 19, s.
66. 24-25F.,c. 98, a. 48, /mp.
CHAPTER 167.
Atf ACT EESPECTING OFFENCES EELATING TO
THE COIN.
1. In thi. Act, unless the context otherwise requires,-
of any foreign prince or statf or n ' T""' "' ^^^'^ «' «''-^'- «oin
current, b, virtLof an;Vrl"L:U^::S..::vi:e1n 0^^""^
any other part of Her Majesty's dominions? ' '°''^"' ^'' '"
(6.) The expression "current coDoer coin" ,•««) ^
(fl.) The expression " copper or brass coin " in^l. -^
or other similar expression, inclu 'es anv nftl^ "'"'' '°'°'"
dominion., a„d »ha Jrnf.:; "^^J '!,T1°' ''"k"'^"'^''
aeo'L'pStrA:: "' °''-^- " ^^-' *•"» Act, see
By sec. 205 of the Procedure Act, it is enacted that •
■■ Ipon the Wl Of «,,,.„„„ ^„^ „, .„^ ^^^^ ^^.^.^^
I I
■I •)
536
THE COIN ACT.
the currency or coin, or against the provisions of the " Act respecting
offences relating to the Coin, " 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 counter-
feited 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 ofconterfeiting or imitating any such lawful
coin, shall be considered a just or lawful cause or reason for acquit-
ting any such person of such oflfence ; and it shall, in any case, be
sufficient to prove such general resemblance to the lawful coin as
will show an intention that the counterfeit sliould pass for it.
See also sees. 55, 56,115,209 and 229 of Procedure
Act.
OFFENCES RELATING TO THE COIN.
The Imperial Act applies only to the ^' Queen's current
gold and silver coin," coined in any of Her Majesty's mints
or lawfully current in any part or Her Majesty's domi-
nions in or out of the United Kingdom. The Canadian
Act includes gold or silver coin of any foreign prince, state
or country current in Canada, or in any other part of Her
Majesty's dominions. But the clause is so framed, in the
English Act, as to include all such coin, though the words
" of any foreign prince, state or country " are not inserted.
As to venue in certain cases, see sec. 23 of the Proce-
dure Act.
2. Whenever 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
t!ie knowingly and wilfully having it in the actual custody or posses-
sion of any other person, and also thfc 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.— 32-33 V., c. 18, s. 1, part.
24-25 v., c. 99, «. 1, Imp.
This clause is to cover questions which came up in R,
THE com ACT.
637
V. Rogers, 2 Moo. C. G. 45 ; R. v. Gerrich, 2 M. <k Rob
219, and R. v. WUliams, 1 C. <& M. 259.^Greave8
Con. Acts, 318.
3. Every one who falsely makes or counterfeits any coin resem-
bling or apparently intended to resemble or pass for any current gold
or mlver com is guilty of felony, and liable to imprisonment for life—
32-33 v., c. 18, ,. 2. 24-26 V., c. 99, ,. 2, Imp.
Indictment-^The Jurors for Our Lady the Queen
upon their oath present, that J. S., on often pieces
of false and counterfeit coin, each piece thereof resem-
bling 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, ^uch as finding the necessary
coining tools in the defendant's house, together with some
pieces of the counterfeit money in a finished, some in an
unfinished state, or such other circumstances as may fairly
warrant the jury in presuming that the defendant 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 coun-
terfeit the Queen's coin, and one of them actually did so in
pursuance of the conspirary, it was treason in all, and they
might all have been indicted 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.
A variance between the indictment and the evidence in
*'!|™
''f
ni
I
¥ M
■ ("il
_^i!l
538
THE COIN ACT.
the number of the pieces of coin, alleged to be counter-
feited, is immaterial ; but a variance as to the denomination
of such coin, as guineas, sovereigns, shillings, would be
fatal, unless amended. By the old law the counterfeit
coin produced, in evidence must have appeared to have
that degree of resemblance to the real coin that it would be
likely to be received as the coin for which it was intended
to pass by persons using the caution customary in taking
money. In R. v. Varley, 1 East, P. 0. 164, the defen-
dant had counterfeited the semblance of a half-guinea
upon a piece of gold previously hammered, but it was not
round, nor would it pass in the condition in which it then
was, and the judges held that the offence was incomplete.
So, in R. V. Harris, 1 Leach, 135, where the defendants
were taken in the very act of coining shillings, but the
shillings coined by them were taken in an imperfect state,
it being requisite that they should undergo another process,
namely immersion in diluted aquafortis, before they could
pass as shillings, the judges held that the ofience was
incomplete ; but now by sect. 27, post, of the Coin Act,
the offence of counterfeiting shall be deemed complete
although the coin made or counterfeited shall not be in a
fit state to be uttered, or the counterfeiting thereof shall
not be finished or perfected.
Any credible witness may prove the coin to be counter-
feit, audit is not necessary for this purpose to produce any
moneyer or other officer from the mint, sect. 229 Pro-
cedure Act. If it become a question whether the coin,
which the counterfeit money was intended to imitate, be
current coin, it is not necessary to produce the proclam-
ation to prove its legitimation ; it is a mere question of
fact to be left to the jury upon evidence of usage, reputa-
tion, eta.— Hale, 196, 212, 213. It is not necessary to
I: Hi
THE COIN ACT.
539
il'i Ml
BoHnson, 10 Cox 107- E I V ff' ^^^' ^' ^•
anf felot it!/ ^^^^--^-e Act, if, upon the trial for
anv telony, it appears tb^t the defendant did not comnletG
Zr ""^' ^ "^'^^^ ^^^ ^^ g-- of guilty o'f the
by any means ^h!iZTZ^r:::T ""' ^''^ '' '' ^''-••' ^
whatsoever, re«embling or aZre„UvTn!! 7^'.''' ""'^'^ ""^^ ^^'"^
for any current gold or' ilver'co !^^^r 1 iS o^ «^ """''^ ""' ^^^^
wash or materials caoable of r..^ °':g"'if or silvers, or with any
gold or silver, or byZt^^LlZt^'''^ *»»« '^'^^ or appearance of
colors any piece of Silver o™Zlr'T'""' ^*'''''' ^'^«^« 'ver or
or of any metal or m Ilure oTnSl "°'"' ^"''^ °'* ^'^^'^^ ^^^^er,
and figure to be coired,td with inentTafir'^' '''''''' ''' «* «'-
into false and counterfeit coin r.«l I, *''' '^"^ «^«" ^e coined
resemble or pass fo 2 c^en^^^^^^^ •'PP^^ently intended to
any wash or materials caprbe of '^d Z '''"'-"' ^"'^^ ^^' ^'^J*
of gold, or by any mear:t IC "11^^^^^
any current silver coin, or files o- T . ' ' '''''' ^' ««^«"
coin, with intent to make the samP L^ v.T^ ™*"''^'" *''*'" «"ch
gold coin,-or gilds or sUvers or witi- ^' ^*'' '"" '"^ '""^°*
Of producing the color or a^p^arlY;^^^^^ '"f'^'^ ^^''^'^'^
means whatsoever washes, case^ overor colos T '"■' "' ^^ *"^
coin, or files or in any manner JIJ. u ■ *"^ ''""^"* «<>PPer
the same resemble or Zs L anv '?'" ''''^ '"^^"^ *« '"^e
guilty Of felony, and HaWrto imnZ T ^?'^ ^' ^'^^«' ««i». i«
Indictimv* for colouHnq coin fcio.T ^ •.,
and feloniously did gild a certZ*;*; } ^' deceitfully
resembling a certain 1 t ' ^^^ counterfeit coin
"^iug a certain piece of current gold coin o^^^^A
"«.gn against the f„™ -^.SwJ ^ """^ ""
ftove the gUding, etc., or colouring as stated in the
' i
11 iiiim
''■j-f**
:"A
540
THE COIN ACT.
indictment. Where the defendant was apprehended in the
act of making counterfeit shillings, by steeping round
blanks, composed of brass and silver in dqua fortis, 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. v. Case, 1 Leach, 145, In
another case a doubt was expressed whether an immersion
of a mixture, composed of silver and base metal, into aqua
fortis, which draw the silver to the surface, was colouring
within the repealed statutes, and whether they were not
intended to apply only to a colouring produced by a super-
ficial application. jR. v. Lavey, 1 Leach, 153. But the
words " capable of producing " seem to have been intro-
duced 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 defen-
dant, or from an examination of their properties, that they
are capable of producing the color of gold or silver. But
an indictment charging the use of such material will be
supported by proof of a colouring with gold itself.—^, v.
Turner, 2 Moo. C. G. 41. — Archbold, 746. Where direct
evidence of the act of colouring cannot be obtained, cir-
cumstances 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, 806.
Indictment for colouring metal, etc falsely, deceit-
and feloniously did gild ten pieces of silver, each piece
thereof being respectively of a fit size and figure to be
THE COIN ACT.
541
coined, and with intent that enoh nfth^ -a •
.espectively should be cot d in^t, 'r^' '''"■''^'
coio re3embH„g apiece ^S^ZliZn'^Tr ''''''
..gn, apinet the fo™ -JrlZ ''""■
An indictment charging the aihUncr «<• * ■
-eria.. capable of pM„°oi„; CX SZ^il' "'?
and IS supported by nroof of n.i ^ ^ ^'^^'
or lightened may pass for 11':^^^^^^^^^^
f^lony.and Jiable to fourteen vZJ " °'''" '« g»"ty of
..4. 24-26 F.,c. 99, riX ••"P"aonment.-32 33 V., flS,
6. Every one who unlawfuUv haa in !,;» . ,
filings or clipping., or any gold o^ , "ert iol^' " ^"r'^" *"^
in dust, solution or otherwise whir l ' *"^«°'^ ^''^'Jver
by impairing, di^.ini.hi„g':;Ti;ri;\';T^^^^^^^
com, knowing the same to have been bo ,1^? ^ *^ *"* '''"^'
guilty of felony, and hable to seven yearl' in nr " "' '^'"'■"^' '«
C.18...6. 24-25 v.. c. 99, s. 5 Jmp '"'P"«onment.-32.33 T.,
Indictment — . for, ^,v ^
i^ipair, with intent that eachof the L '^'™'™«'y did
.ight pass for a piece otZllTji ^Lllr"''
re,gn, against the fo™ -il^' ^' ' '"^'-
The act of impairing must be shown eitl,„ k ^•
.vdence of pe«ons who saw the pris n™' » "d Lt
ly pvesumpfve evidence, such as the possesS nf fl '
and of ,mp.ired coin, or of instruments'for M 7 etc tT
.nten topass off the impaired coin must then ala;' T^'
may be done by showins th«t th= • ^^^ ' "'^
pa.» the coin so impl^^d or tharhe"""" ;"""'"'<' '»
pe.on, which wou.d'^.iselLXttrttr";?;'
m U. And if the coin were not I defa' ^ ty f^fj:
i I *'
HS
a;
542
THE COIN ACT.
by impairing, as apparently to affect its currency, it would,
under the circumstances, without further evidence, be a
question for the jury, whether the diminished coin was
intended to be passed. — Roscoe on Coining, 19. As to
sect. 5, Greaves remarks: "This clause is new. It
has frequently happened that filings and clippings, and
gold dust have been found under such circumstances as to
leave no doubt that they were produced by impairing coin,
but there has been no evidence to prove that any particular
coin had been impaired. This clause is intended to meet
such cases."
7. Every one who, without K wful authority or excuse, the proof
whereof shall lie on him, buys, sells, receives, pays or puts off, any
false or counterfeit coin, resembling or apparently intended to resemble
or pass for any current gold or silver coin, at or for a lower rate or
value than the same imports, or was apparently intended to import,
18 guilty of felony, and liable to imprisonment for life.— 32-33 F., c.
18, 8. 6, part. 24-26 F., c. 99. s. 6, Imp.
Indictment— ten pieces of false and counterfeit
coin, each piece thereof resembling a piece of the current
gold coin, called a sovereign, falsely, deceitfully and felon-
iously and without lawful authority or excuse did put off
to one J. N. at and for a lower rate and value than the
same did then import ; against the Archhold, 750,
Prove that the defendant put off the counterfeit coin as
mentioned in the indictment. In B. v. Woolridrjo
307, it was holden that the putting off must be cc. . ■:.
and accepted. But the words offer to bay, sell, &c., in
above clause would now make the acceptation immaterial.
The last part of the clause refers to the indictment ; by
it, the cases of R. v. Joyce, and R. v. Hedges, 3 C. <& P. 410,
would not now a.^i^\y. —Archbold, 751. If the names of
the persons to whom the money was put off can be ascer-
tained, they ought to be mentioned and laid severally in
**"*tlBtl:.
raiS COIN ACT.
643
or counterfeit coin, reseubZ^or Z^rlT" T !^^'''^- *«y faiee
pass for any current gold or sflver co^l "^ •"*'"^''*^ "^ ''''^^^^ or
or counterfeit, ia guilty of felon! Zd l" 'm "^ ''"' ^'"^ *« ^e fal«e
l'fe--^2-33 r., c. 18. s'l. 24 25 r c 99 " ' J' ""Pri^onment for
Indictment— t„. n, ,
counterfeit coin, each pier. Z.° ^'"*' "fMseand
the current silver coin S a 2^^ '^ " P'^^ <>'
.ndfel„ni„„3ly. and without latitat' ^'^''^'^'^
did import into Canada,_he thelid jTlt " °^'=""''
when he eo Sported the ^ardpfel^-j,:"'''' -''' «™
terfert coin, well knowing the LelTLf f ""'' '=°'"'-
feit; against the form '^ '^"'' '°Jf f^^^^-d counter-
108; 1 5„ro, 867 -^'•<*4<'W, 751; 1 s^
counterfeit coin, resembling or an'Cf T ?""^"'*»^ f^J««or
pa«8 for any current coin,^JX'Z "• f '•"^'"'^^'^ *^ ^^^^'"We or
country or state, knowing the ea meto be^Zr '""• "'^'^"^ ^^""^^
of a misdemeanor, and liable t^ imnl ^ '^""'"'^«'^''«g"ilty
than twoyeare.>32.33F.,c 18,^ 8 ' a^.T"' t' ^"^ ^^-^ ^^^
The worfa m Ualica are not in the Imperial Act
The clause covers the aH^mr^f t- ""^"^"^^ ^ct.
Sec. 183 of the ProX^Tl TT '° ^'^^^^ ^«««-
of attempts. ' "^"^ ^""^^ «°^er other cases
Indictment .... . Ono i,, j j .
^^' ^""^«d pieces of false and
544
THE COIN ACT.
counterfeit coin, each piece thereof resembling a piece of
the current coin called a sovereign, falsely, deceitfully and
knowingly, and without lawful authority did export flora
Canada, he the said C. D. at the time when he so exported
the said pieces of false and counterfeit coin, then well
knowing the same to be false and counterfeit ; against
1 Burn. 825. See observations on last preceding
clause.
10. Every one wlio tenders, utters or puts off, any false or coun-
terfeit coin, resembling or apparently intended to resemble or pans for
any current gold or silver coin, knowing the same to be falfle or
counterfeit, is guilty* of a misdemeanor, and liable to fourteen years'
imprisonment.— 32-33 V., c. 18, «. 9. 24-25 V., c 99, a. 9, Imp.
11. Every one who tenders, utters or puts off as being current, any
gold or silver coin of less than its lawful weight, knowing Huch coin
to have been impaired, diminished or lightened, otherwise than by
lawful wear, is guilty of a misdemeanor, and liable to one year's
imprisonment. — 32-33 V,, c. 18, *. 10.
12. Every one who has in his custody or possession any false or
counterfeit coin, resembling or apparently intended to resemble or
pass for any cuarent gold or silver coin, knowing the same to be false
or counterfeit coin, and with intent to utter or put off any such false
or counterfeit coin, is guilty of a misdemeanor, and liable to three
years' imprisonment.— 32-33 V., c. 18, *. 11. 24-25 V., c. 99, a. H,
Imp.
Indictment for utteHng counterfeit coin.
One piece of false and counterfeit coin resembling a piece
of the current gold coin, called a sovereign, unlawfully,
falsely and deceitfully did utter to one J. N., he the said
(defendant) at the time he so uttered the said piece of false
and counterfeit coin, well knowing the same to be false
and counterfeit; against the form — Archbold.
Prove the tendering, uttering or putting off the sovereign
in question, and prove it to be a base and counterfeit
sovereign. Where a good shilling was given to a Jew boy
TBI com ACT.
S45
for fruit, and he put it into hh mn„n. j
trying whether it were «oo^ LTT, J r"^"" °'
out „fhi, ,„„,.th instead'^;.: urned""'!,''"'' ^'"'""^
.aying that it waa not good ■ th.Wwhl t n T''""*^''
»uch,-E V. Franks. 2 I.^.^ B^r^X'tsf^r
giving of a piece of counterfei rn^neyT^ I ' ^""^
uttering, although .he peraon may Joi i ^ ^ " ""' ""
feit ; as in cases of this kind thL . u '""'"'*''-
tion to defraud.-^ ^ p^ tr 7t "" """" '"'»"■
«e has been oveTuled.-if. v. Ion, 2 i„„. 475 ;lZl
A prisoner went into a shop, asked for some coffe. .„^
sugar, and m payment put down on thp . T ^
feit shilling: the prose'utor laid ,1 "wir "'■'"'"'■
W one; whereupon the prisoner qui ted the '"' T "
iug the shilling and also the coffee"* tu ^
this was an uttering and Duttin» nff f^?^ 1 """
dieted for a misde^^an t in tSrrt '; ^'"^ ""
The uttering was efiected h^T '"'"'S counterfeit coin.
oner, but the i«r;'TJlZXtl2T' r
the evening on which the utteringCklee i„ T ""
~u purpose of ottering connte4il£l Id ^m"
pursuance of that common purpose J «t, ,T °
question: BeUl. that t^^e^lt^^Tjll^T^V:
^ a principal, the,^ being no a Jasor f t V
meanor.-A v. Greenwood: 2 CZs rt, ' ^'''r
pi^pare counterfeit coin, and utter' ft t " '"VT"^
mrt from each other but in concert L T '^°^'
the proceeds, the utterings "f each !« '? "° '" *"°
7 of hot, and they ma^ be T,iZ ^StT:
Surse, 2 M. and Mob. 360. .)^'^t^y.—M. v.
LL
.ill
•iff
1, •■ -s,.
Jl
546
THE COIN ACT.
B. V. Else, R. cfr R. 142 ; R. v. Manners, 7 C <fc P.
801 ; R. V. Page, 9 C. dt P. T6(j ; 2 Moo. G. C. 219 ; are
not law. — Archbold, 754. Husbnnd and wife were jointly
indicted for uttering counterfeit coin : held, that the wife
was entitled to an acquittal, as it appeared that she utter-
ed the money in the presence of her htisband. — R, v.
Price, 8 C. ik P. 19. A wife went from house to liouse
uttering base coin; her husband accompanied her hut
remained outside : Held, that the wife acted under
her husband's comptilsion. — Conolley'8 case, 2 Lewin,
229. Sarah McGinnes was indicted for uttering coun-
terfeit coin. It appeared that at the time of the com-
mission 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 prisoner 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 McGinnes
since her committal had been ccfined of a child : Ihkl,
per Byles, J., that, under the circumstances, although the
woman had not pleaded her coveiture, and even although
she had not asserted she was married to the male prisoner,
when he seated she was not his wife, it was a question for
the jury whether, taking the birth of the child and the
whole circumstances, there was not evidence of the mar-
riage, and the jury thought there was, and acquitted her,
as being under the influence of her husband, when she
uttered the co'm.—R. v. AlcOinnes, 11 Cox, 391.
Proof of the guilty knowledge by the defendant must
be given. This of course must be done by circumstantial
evidence. If, for instance, it be proved that he uttered,
either on the same day or at other times, whether before
THE COIN ACT.
547
or ttffor the uttering chnrrrarl k ^'^
Jillerent person, or l.ad other vie.I^'Jel "'° <"■ '» "
him when 1,„ „tte,„j ,^,^ co'teTl ° """'°>' "''»■"
'W' will bo evidoneefr™. wh ;^;' r-y '» -l"-.io..,
guilty kaowlodgo._^„,.j„y 754 V^^ ""Vprcumo a
fuLely and docoitfullv had in i,-"' unlawfuHv
Z^- pieces of false aL lotertircr' "' ^^^^-^-
current diver coin called '''^^,*'^.'"' resembling the
said pieces of false and count*:;; T ''''"^ *^ "'^^^ ^he
t^-^ well knowing th: said p ^ ,fT/ '^ '^ ^'^^^ ^^ «'
com to be false and counterfeft Z I """^ counterfeit
757. As to what constitutes the havh :*in'*""~^'"'^^'^^'
sect. "^ '^^^"'g in possession, see
See .ft. V. Hermann, 14 Cox, 279.
r'"'"^r^"^»rofte\l;;e?eitt?s'oxrn^ any s,.ch mfsde-
ny nu«,ie,„ea„or or felony again.t Is o T '."^ "'^ntioned, or of
the co,„ afterwards com,nit/a„; o , ' „ J °"'''* ^^^ '•^'^""g to
said sections mentioned, is guiltvof L' '"'^f '"^»"0" in any of the
forl,re.>32-33 r.,c. I's, f it^^ZS 7'r9V"^"^ ''"^'-'^
The prisoner was indicted under fh;= .•
first instance, he was arraimed imo!, I ' '™- ^" ">«
™»t relating to the siibsfonentrff """P''^"^ "'eindict-
- ^en npon the previonrnvict^^^^^^^^
M, that the conviction for " m!^?^ '^"""'^ "•'' g"«'y-
»:ered npon that verdict ~R l "f ^"'=''"0' could be
See sec. 139 and 207 of the Pr ^^' " ^'"'' ^^■
cedure when a previous offence faTh V"'' "^ '" P'""
'» «. U6 of the ImperM L ' T^ "-Tesponding
Herial Coin ^.^uTm^^I ^ '^^l^*^ °^ ""^
-t h
'g
'% I
f Be •
548
THE COIN ACT.
14. Every one who, with intent to defraud, tenders, utters or puts
off, as or for any current gold or silver coin, any coin not being such
current gold or silver coin, or any medal, or piece >f metal or mixed
metals, resembling, in size, figure and color, 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 current coin as or for which the same is so ten-
dered, uttered or put off, is guilty of a misdemeanor, and liable to one
year's imprisonment.— 32-33 V., c. 18, s. 13. 24-25 V., c. 99, s. 13,
Imp.
A person was convicted, under the above section, of
putting off, as and for a half sovereign, a medal of the same
size and colour, which had on the obverse side a head
similar to that of the Queen, but surrounded by the inscrip-
tion "Victoria, Queen of Great Britain," instead of "Vic-
toria Dei Gratia," and a round guerling and not square.
And no evidence was given as to the appearance 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. — R. v. 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.
16. Every one who falsely makes or counterfeits any coin resem-
blingor apparently intented to resemble or pass for any current copper
coin, or without lawful authority or excuse, the proof of which shall
lie on. him, knowingly makes or mends, or begins or proceeds to make
or mend, or bays or sells, or has in his custody or possession, any
instrument, tool or engine adapted and intended for the counterfeiting
any current copper coin, or buys, sells, receives, pays or puts off, or
offers to buy, sell, receive, pay or put off, any false or counteifeit
coin, resembling or apparently intended to resemble or pass for any
current 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
liable to seven years' imprisonment— 32-33 F., c. 18, s. 14. 24-25 ¥.,
c. 99,3. 14, Imp,
lA^^yy^
THE COIN ACT.
649
16. Every one who tenders utt^r. ^'
fe.t com. rese„,bli„g or appZ'.T?!' ?? '^^^y ^^Ise or counter-
any current copper coin, know!l t, '"''"^"'^ '« ••«««'»We or pass for
or 1ms „ h. custody ;r p^ssefsion ^1,"" "" ^^ '^'«« «^ «ouSet
cou„terfe,t coin, resernbling"^ a!'" ^ T ";T P'^''- «'' ^-'- o r
or any current copper coin! knowCh^J "^1 *" '•^^^"'ble or pas
feit with an intent to utter or nut f ff f. "' '^ ^' ^*'«« or counted
g..Uy Of a Misdemeanor, an^ lif,;;: : --; o^ any of theri;
33 r., c. 18, ,. 15. 24-25 V., c. 99, ,. jg;}/^"^'^ « ''»P-'-i«on.nent.-32.
17. Every one defaces any curr^nf '.^
stamping thereon any ..J^orZl '"Jtt"''' '^ ^^^PP^"- ««-, 1^7
thereby dim.nished or lightened, TnTlZ I '"'^ ^'^'^ '« ^r is nol
gu.Hy of a misdemeanorT and itblpl ''^'■'^' '''"^''' the same is
33 v., c. 18, ,. 16. 24.25 f" c 9^1 ifi^'X^r''' ''"^"^^"'"^"t "^^
.Jt'onZrrjtr^^^^ Seir r^"^ -■•" -^--d.
l-able to a penalty „ot exceedinft^/lV" T "' ^^« P^^ce. t^
proceed for any such last mentioned "tl^ "'"""" ^''^''
h Attorney General for the Province L J? T'^'""' *''« «""««»* of
to have been committed.-32-33 V. " 18 7 ,". '"^'^ ««"-««« i« alleged
*-i7,/»»p. '^•'''•iS,*. 17, par^. 24-25 r.,c. 99,
the current silver coin callpH o i, li. ^^^ P'^ce of
wilfully did deface, L;1;en''f^'!^^"'-^-fully and
names and words... 'ZJlTf''^ ^^'^'"^^ certain
JoH 748. ^^^'°'*^ ^^^ f«rni _^^^^_
Prove that the defendant defaced thp . • •
stampmg on it any names or rrds LTm"'"'^'^"^"'^^
necessary to prove that the coin tZ\ . ' ^^ '' °«<=
lightened. There must be Tf ''"^^ diminished or
tl^e offence within s" '^'^""^ ^^^ ^-^-'-g. to bring
19, Every one who mnL-
being current gold or silver coi.^ Z;'''''''' ^"^^ ^-^-<i of coin not
tende.ltoresen,ble or pass for" ''^^^T'"""-" °^ apparently l^^
If
F^'-irRT-'^" '^1
~^.w
550
• THE COIN ACT.
e I
whereof shall lie on him, brings or receives into Canada any such
false or counterfeit coin, resembling or apparently intended to resem-
hie or pass for any gold of 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 liable to seven years' imprison-
ment.— 32-33 v., c. 18, s. 19. 24-25 V., c. 99, *. 19, Imp.
21. Every one who tenders, utters or puts off any such false or
counterfeit coin, resembling or apparently 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 counterfeit,
is guilty of a misdemeanor, and liable to fix months' imprisonment:
2. Every one who, having been convicted of any such oflPence, after-
wards commits the like 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 a misdemeanor, and liable to im-
prisonment for any term less than two years ;
3. Every one who, having been twice convicted of any such offence,
afterwards commits the lik' 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 liable to seven years'
imprisonment.— 32-33 V., c. 18, ss. 20 and 21. 24-25 F., c 99, ss. 20-
21, Imp.
See sec, 207 of Procedure Act.
23. Every one who, without lawful authority or excuse, the proof
whereon shall lie on him, has in his possession or custody any forged,
false or counterfeit piece or coin, counterfeited to resembleany foreign
gold or silver coin described in the three sections next preceding,
knowing the same to be false or counterfeit coin, is guilty of a misde-
meanor, and liable to three years' imprisonment. — 32-33 V., c. 18,
a. 22. 24-26 V., c 99, *. 23, Imp.
23. Every one who falsely makes or counterfeits any kind of coin,
not being current coin, but resembling or apparently intended to
resemble or pass for any copper coin, 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 misdemeanor, and liable, for
the first offence, to one year's imprisonment ; and for any sub-
sequent offence, to seven years' imprisonment.— 32-33 F., c. 18, s. 23.
24-25 F.,c.99, s. 22,i?«;).
The remarks uuder the first part of the Act are all
ff
THE COIN ACT.
551
applicable here, the enactments in th. •
{«) Knowingly makes or mends or K •
mend, or buys or sells, or hast h,/ ^'"f ^^ P'^''^''^' '« make or
cheon, counter puach;o„, inltrix stf '^/ '^ P^^^^^^^'^" ^-Ymn
or upon which there is narl?' '^^'"P''^'^' P«"ern or „,ouM "n"
■mpre«s, or which is adapted anV^^''"'"'^' °^ ^'"'^h wilj mlS'o
%«re,sta.por apparent^! ^I'^of^f^ '"^^-^ '--P- « the
of any current gold or silver co^n o.L "^ ""' '''^" ^^ "»e sides
Pnnce, state or country, or any ^^^^ij^ ^^o^ - any .ore£
0.) Makes or mends or K • '^' ''^'«'-
biiys or sells, or has in h';= . '."^ °'" PJ'oceeds to njake or «, ^
o.i,e. too,, ooujxii:; :ri-s^''io^ -, t° .s:
"oures, apparently rPflor.,kf , ' s'^^'niigs, or otlmi.
■Apled and ,„te„dej „ afores.,;i° ^ • ''"'""°« "■" ««me .„ be aj
(c.y/ Makes or mend<» nr k„ •
buys or sell, or has n his ust^r:' '""^^^'^ *« -^^e or mend or
0^ -7 cubing engine for cX^; ZlT' ^"^ ''''' ^^ ^^4
ontnvance round blanks out of ^oU sill' ''''^^ ''' ^^^'^^^ o'l^er
ure of metals or any other machine k '''' ^'''^'' "'^'^l or mix-
f..r comage, or knowing such enti"!' o "''''?. '"°'' P''^^^ ^^ ^^ a pri^
to e -ended to be use^l for or ^ der ^ t "^ T ''^« ^«- "-"^
-^-n.or any such coin as i„ thilttlt,::^::,;!^^"^" o^ coun-
Bgnillyoffelonv, and 11.1,1. ,„ ■ .
'■ '8. .. 24. 24.M r.,1 ';* ;° ™;-onme„t ta Uf,,,,^.,, ^_
">"' " to say, the head side „f^ "^ '""' "^ *<' ^des,
*-°'.-.„.,eaueda,Hmr.rro:LS;r.;:
i'':^%'^t^„
I, ;
II
552
THE COIN ACT.
deceitfully and feloniously, and without lawful autho-
rity or excuse, did make, against the form — Arch-
hold.
Prove that the defendant made a puncheon, as stated in
the indictment ; and ;.rove that the instrument in ques-
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 words
" which will make or impress " apply to the counter pun-
cheon, which being concave will make and impress.
However, although it is more accurate to describe the
instruments according to their actral use, they may be
described either way. — R. v. Lennard, 1 Leach, 90. It
is not necessary tluit the instrument should be capable of
making an impression of the whole of one side of the
com, for the words "or any part or parts" are intro-
duced into this statute, and, consequently the difficulty in
B. V. Sutton, 2 Str. 1074, where the instrument was
capable of making the sceptre only cannot now occur.
And on an indictment ;or making a mould "intended to
make and impress the figure and apparent resemblance of
the obverse side " of a shilling, it is suffic'.ent to prove
that the prisoner made the mould and a part of the im-
pression, though he had not completed the entire impres-
sion. — R. V. Foster, 7 (7. <fc P. 495. It is not necessary
to prove under this branch of statute the intent of the
defendant : the mere similitude is treated by the Legis-
lature as evidence of the intent ; neither is it essential
to show that money was actually made with the instru-
ment in question. — R. v. 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-
THE COIN ACT.
653
sinker to make, for a nrofo«^ j •
ing fmud, infomed theZfL v ' <''«-«"l<e>-, suspect-
their directions I^e tL dttrT ""' """^ »"" ""-^^
prisoner ; it was held that th .lYert" "' "''^"'■"^
agent and the defendant was rioh!" *" """^'"
The mafe„g, and ^««ri„^ dies 'and ot^
with intent to nse them in coini^ P """™'»'''
in England, not in order to nZ^h t"""" half-dollars
trying whether the appar^" t, ,. ''°' ■"" ''^ ""^-'f
it out to Pern, to boZTl7 T"' ''^^■■^ sending
coin for circulation „ThaT/''','"''''''^'''^'=™'''«rf«t
indictable misdemeanor orml''; "" ^^" *» ''^ »
A galvanic battery is a machine ,^S' 1 ' ■^'"*- ^'"''
e»-of«r, 9 Cox, 282. ^° ""' ^^ot'on—ij. v.
Indictment Jbr 'having a punch.^ ■
one puncheon in and f . *" P<««sio„._
n.ade and .mpressed t ^ fi/j^ "'""V'''^" ^^ "'en
is.to say, the head side of "a "iel 7^^^, '"^ ^■^-' *>«"
com commonly called a si,il|i„„ k„ ^^\'"'"<"^* silver
ceitfuUy and feloniously and w^„ frf ^' '''"^'''^- <'"-
e-use, had in his cnfwy aid r^""" """""•"^ »'
fen- -^^dlJoW possession, .gainst the
An indictment which charged th»t n, j ,
".ouslyhad in his possessiof a mo ,d ! '""T/^'"-
mould was made and impressedth!. « ^ """* ^"^
«blance" of the observe sTdenf ^"'^ ""' "P^"™'
on demurrer, as not sufficientV 1 '"''*'"*■ ^*' '"'" '»d
™n was on the moul7a the ,i™ "? "'*' ""^ ™P'^«-
^-oevidence Of possess!;, s;e"el?L,_^.^.
. *^W<
* > i
M
554
THE COIN ACT.
Rogers, 2 Moo. C. C. 85. — 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 police
and the women threw something into the fire. The police
succeeded, however, in preserving part of what the women
threw away, which proved to be fragments of a plaster-of-
Paris niu ' ■ •** a half crown. The prisoner came in
shortl}'^ aft*. ^s, and, on searching the house, a quantity
of plaster-ol-l'aris 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 question, 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
defendant may be proved for that purpose. — R. v. Weeks,
L. & C. 18. In M. V. Harvey, 11 Cox, 662, it was held:
1. That an indictment under this section is sufficient if it
charges possession without lawful excuse, as excuae would
include authority ; 2. That the words " the proof whereof
shall lie on t] accused " only shifi", the burden of proof,
and do not alter the character of the oftence ; 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 cons-
titute lawful authority or excuse for prisoner'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.
THE COIN ACT.
55&
Indictment for making a collar
adapted and intended for the niarJc^7 ';""•"* """^ '°"^'
e^.es .ith graining Jt2;^:^Z\^rLZ
authority or e.cus; did'S; t' l' s^f s'T/"^
wellknoM'ina the samP tn K. i ^"e said J. S. then
It must be proved unnn +!.;« ,• j- ^
, ' P^ *^^^ indictment that thp Aa
fendant knew the instrumpn^ fr. k„ i . , "®"
for the markina nf 1 ^ , ^ ^^^^^^ »"^ ^^^ended
lor uie marKing ot coin round the edcres
25. Every one who, without lawful authnrlt^^
whereof «halJ he on hi,„, k„owT„l "'n ^*''" '^""^^' "^« P^««f
Majesty's mints into Canada a„v nV 7'"^' '"' '^^ ^"^ ^^ ^^^
n.atnx,sta„.p.aie, pattern, mould edrr!"'"' '"""'^^ ?""«'-«"'
instrument, press orengine TeS or .^f ' !'"^ """ '''^''' ^°'' ««"»•■'
of coin, or any useful part o^at of 7 "^'^ "! "^ *^""* ''^^ ^^'^i^S
any coin, bullL, metaUr ^ iZe o 177™' "'"'^^ ^'^^«^*''^' «'
liable to imprisonment for ^^-32 33 7 V' ^"'^^^ "^ ^^'«"^" «nd
m,s.25,Imp. ^2 33F.,c.I8, *. 25. 24-25 F., c.
26. If any coin is tendered as current ooU or o-i
Frson wlio suspects the samP tr. Zv ■. «''v«r coin to any
reasonable wearing, or o be cou.Uert;"'?''^ '^''^"-"'^ *han by
bend or deface Puch coL and "f In ' '""^' P""*'"" '""^ «"^' b-"^^.
^eraced appears to ^^:^1:''X:Z ulT^"' ^"^ ^
wearing, or to be counterfeit the r^^JZT a ^^ reasonable
tear the loss thereof; but f U tre Tof ? ^''" '^'"^ ^'^*"
to be lawful coin, the person cuttin. b ' I ".1 T'^'^'' ""'^ ^^PP^^^^
-ne, shall be boundVreee ve L' :i"'\''"'^
was coined: '^ '^""^ ** '-'^ ^-ate for which it
b. he.r,l and fl„al|y dceerm Lj in .7 ' °' ~""""*i'. H rt.H
n
: <u
656
THE COIN ACT.
Other person, for the purpose of deciding such dispute, and if he enin-
tains any doubt in that behalf, he may summon three persons, the
decision of a majority of whom shall be final :
3. Every officer employed in the collection of the revenue in Canada
Bhall cut, break or deface, or cause to be cut, broken or defaced
every piece of counterfeit or unlawfully diminished gold or silver
coin which is tendered to him in payment of anv part of such revenue
in Canada.— 32-33 V„ c. 18, s. 26. 24-26 V., c. 99 s. 26, Imp.
The words in italics are not in the Imperial Act.
27. Every ofFence of falsely making or counterfeiting any coin, or
of buying, selling, receiving, tendering, uttering or putting off, or of
oflPeringto buy, sell, receive, pay, utter or put oft*, any false or coun-
terfeit coin, against the provisions of this Act, shall be deemed to
be complete, although the coin so made or counterfeited, or boiK'iit
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. 32-33 V., c. 18, ». 32. 24-25 V., e. 99, s. 30, Imp.
The word in italics is not in the Imperial Act.
MANUFACTURE AND IMPORTATION OF UNCURRENT
COPPER COIN.
28. Every one who manufactures in Canada any copper or brass
coin, or imports into Canada any copper or brass coin, other than
current copper coin, with the intention of putting the same into ciicu-
lation as current copper coin, shall, on summary conviction, be liable
to a penalty not exceeding twenty dollars for every pound Troy of the
weight thereof; and all such copper or brass coin so manufactnreJ or
imported shall be forfeited to Her Majesty, for the public uses of
Canada — 31 V., c. 47, as. 1 and 2.
29. Any two or more justices of the peace, on the oath of a cre-
dible person, that any copper or brass coin has been unlawfully man-
ufactured or imported, shall cause the same to be seized and detained,
and shall summon the person in whose possession the same is
found, to appear before them ; and if it appears to their satisfaction,
on the oath of a credible w'tness, other than the informer, that such
copper or brass coin has been manufactured or imported in violation
ofthis Act, such justices shall declare the same forfeited, and shall
place the same in safe keeping to await the disposal of the Governor
General, for the public uses of Canada.— 31 V., c. 47, s. 3.
THE COIN ACT.
657
mme to l.ave been bo unlawfully nL'f!! . '"'' ^"""•^' ^"^^ »he
con.len,n l.im to ,«y the penalt^ "re^Sd IT " T"'^^' ^'^^ -»/
Inn. to be i.nprisoned for a term no ex 1T "^''«' '"'^ "'"^y cause
Veu.Uy and costs are not forthwith paidH;"^. '^°^;"«»«hs, if such
aware of ,t having been so unlawfully ranu^!!" ^ '"""^ ^"^^ "«»
penalty may, on the oath of any one credS . "'"^ ""' ""P^''*^'^* '^e
plai..tiff; be recovered, fron. theVwner t ' rtfT"'''' '"^" ^^'*» ^he
tor the san,e in any court of competent jZ^tiTSl'T "''"'"''
32. Any officer of Her Maiestv's n ♦ ''' *^' '* ^'
brass coin imported or atte„,pted to be"hnr,T '"'"" *"^ ^^PP^'" or
tion of this Act, and may detain thp"^"^ '"^^ ^''"^^a in viola-
disposal of the Governor Ge :" fortreTuhP '"'''^''' "^ '^'^^^ *"«
v., c. 47, «,6. ' ''''^ "'« P»biic uses of Canada. ~31
33. Every one who utters, tenders or off •
or brass coin, other than current Conner !! [" W^entany copper
Dcninal value thereof: ^^' ^'""' «^*'^ forfeit double the
2. Such penalty may be recovered with one* •
ner, on the oath of one credible wi'tneJ nT' '" * ""'"'"ary man^
before any justice of the peace who if «!' . ''''" '*»« '"former,
forthwith paid, may cause the offender tnh ^'"^'^^ ««d costs are not
exce.lin« eight days.-3I F-! c f^l W S!^''"'"'*^ '"' " '^'"^ '^°'
34. A moiety of any of thp rw.noU-
-Jions next preceding, bul^^t ulrcopT or b' "^ ^^ ^^« «-
under the provisions thereof, shall belon^T^u • ?'^ °°'» ^^^'"e'ted
who sues for the same, and tl^e ottr^ ' '"'^''''^'- «•• Person
Majesty, for the public uses of Ca„atl3TK,'c.'47 ", t'"^ ^^''
fi
I ! : !
CHAPTER 168.
AN ACT RESPECTING MALICIOUS INJURIES TO
PROPERTY.
TTER Majesty, by and with the advice and conBent of the Senate
•*--'- and House of Cotntnons of Canada, enacts as follows : —
1. In this Act, unless the context otherwise requires, the expression
" cattle" includes any horse, mule, ass, swine, sheep, or goat, as wi-ll
as any neat cattle or animal of the bovine species, and whatever in the
age or sex of the animal, and whether castrated or not, and by what-
ever technical or trivial name it is known, and shall apply to one ani-
mal as well as to many.— 32-H3 V., c. 22, s. 44. 40 V., c. 29, s. 2.
This is the same definition of these words as is a'lven
in the Larceny Act, sec. 2.
INJURIES BY FIRE TO BUIDLINGS AND GOODS THEREIN.
2. Every one who unlawfully and maliciously sets fire to any
church, chapel, meeting-house or other place of divine worship, is
guilty of felony and liable to imprisonment for life — 32-33 V,, c, 22
*. 1. 24-25 v., c. 91, 8.1, Imp.
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 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.
Local description necessary. R. v. Woodward, 1 Moo.
C. a 323.
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
MALICIOUS mmm to monm. 559
makes it criminal to do an act unlawfullv „„^ , ,■ ■ .
au indictment mn,t state it to have tee wl '""'""""''y.
timt it was done felonionaly voZta^n T' '" ' ''"""«
is not enon,.h._^. , r^t'™ T^^""^ '"" --b".
Lewis, 2 ii^^ss. 1067 " ^^^' ^' v.
anot>.e. and .0 -etitnte 'j^^iL"'' ^e t r^ "'
actual burning of some mr*- nf fi i , '^ "^ ^°
_. t J cnint :;z-3t;:r
:::;r.-i:e::tt::tteet:;i::'^/7 -^^^^^^^^^^^^^
r tl.e i,onse .as .nrnt.r ^ CT^'t^tT
house was actually consumpH n ^ T ^™^^" ^"«*t the
well as at common wTi^l,,!"' """"^ "^ »'^'"'e, aa
»me part of the house .ab^r°, ''! "" """■"" """"'"« "f
not sufficient. Bnt Th^ burlri °"'"™'^' '" '^°" '»
of the honae, however trHlTnTfaLT"?"^ "'""^ P"''
«.l.e afterwaMa e.tiS;:Lr Thir '■„:"::" ^^" ,'"«
meat it was proved that the floor of a rn '"*'*■
tha it waa eha„.d in a trifling :;! * tritTdT"^''
.d heat hut not inab.a.e,thifwas'ie!d?^l'^^^^^^^^^^
iDg to support the indictment ' ,t »!,«„,■ ™"
laviag been set on fire on the bearded flo V"'"" '"8^°'
«s were thereby scorched bek but t tlT"^; *«
part of the wood waa conaumed, thia waa heM 1" «"
The time atatod in the indictment need nnf i,
laid, if the offence be proved to hav^^^ "'""'^ ^
anytime before or aft!r, provWed It b^ ""T"^ "'
the finding of the indictment by he '?? ' "''"'^
."ffloient. Where the indietm „t autL' he i7' " '^
have been committed in the night tim Cd' ^ «: ^ed
^r '
J t
f3
yi
6G0
MALICIOUS INJURIES TO PROPERTY.
to Imve been committed in the day time, the judj^os held
tlio ditferencoto bo ininmterial. The parish is material, for
it is stated as part of the description of the house hiirnt,
Wlieiefore, if the hou8« be proved to be situate in anothor
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 .seeni,
would l)e arson. If intending to set fire to the house of
A. he accidentally set fire to that of B., it is felony. Even
if a man by wilfully setting fire to his own house, burns
also the house of one of his neighbors 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 conse-
quence of its taking fire was that the fire would coninui-
nicate to the houses in its neighborhood. And generally
if the act be proved to have been done wilfully, it may
be inferred to have been done maliciously, unless the
contrary bo proved. — Archhold ; R. v. Tivey, 1 C. d- K.
704 ; M. V. Philp, 1 Moo. C. C. 263.
It is seldom that the wilful burning 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 being found
in possession of some of the goods which were in the house
at the time it was burnt, was admitted as evidence
tending to prove him guilty of the arson. So where the
question is whether 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
MALICIOUS INJURIES TO PROPERTY. ggl
question, another building nf fi.„
fl™ „,Kl that tho pi e" ° P^r'"' ""■' ™
f^iocM-Arcklll """"^ " BTutification, wa,
h».l been eonWctecf ranln^io ll?r "T"" " '^ "»
2 yi,«». 1054. """otment for auch atterairf.-
8Er,™a nn, to . dwe.uno-uoube, ..v ,.„son be.ko
THEREIN.
This offence wa, formerly punishable with death
As to verdict for aa attempt to eomm^ T «■
^^^.,.p™aMndietmentfort^„r:':e:r:Z
cnndtting of the fefoja^e "aid 'b ''"''■ ""r' '''^
dwelling-house; against the form. :.!!:."' '" '"^ ^'^
Local description necessary as under se& 2
In this section, no mention is mndo „f '»i, • .
which the act is done • and it LZ^. ' '"'""' ^'*
show that the prison; knew thra " ""' "'"^^'^''^ '°
house. It must be shown tl '^ '""™ ""' '" "■»
at the time the ^t^Z^ulTZZr " '"^ """'^
auguc nre , and where a person was
•>,, ^-^-^
!:H If
MALICIOUS INJUKIES TO PROPERTY.
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. — R. v.
Warren, 1 Cox, 68 ; i2. v. Fletcher, 2 C. d; K. 215.
Under the repealed statute, a common gaol was held to
be a dwelling-house ; Bonnavan'a Case, 1 Leach, 69 ;
but a mere lock-up where persons are never detained more
than a night or two was held not to be a house. — R. v.
Connor, 2 Gox, 65.
A building intended for a dwelling-house, but used as a
place to deposit straw, etc., is neither a house, out-liouse
nor barn. — Elaemore v. St. BriavelSj 8 B. S C. AQl. A
dwelling-house must be one in which a person dwells; R
V. Allison, 1 Gox, 24 ; but temporary absence is not suffi-
cient to take the building out of the protection of the
statute.— E. V. Kimhreyy 6 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 occupi3d,were held not to be houses. — R.
V. England, 1 G. & K. 533 ; ATion. 1 Lewin 8.
What is understood by the house. This extends at
common law not only to the very dwelling-house, but to
all out-houses which are parcel thereof, though not adjoin-
ing thereto, nor under the same roof. — 2 East, P. C. 1020.
SETTING FIRE TO A HOUSE, OUT-HOUSE, MANUFACTORY,
FARM BUILDING.
4. Every one who unlawfully and maliciously sets fire to any
house, stable, coach-house, out-house, warehouse, office, shop, mill,
malt-house, hop-oast, barn, storehouse, granary, hovel, shed or fold,
or to any farm building, or to any I -ilding or erection u>ed in farming
land, or in carrying on any trade or manufacture or any branch
thereof, whether the same is then in the possession of the offender, or
in the possession of any other person, with the intent thereby to
injnre or defraud any person, is guilty of felony, and liable to impris-
onment for life.— 32-33 F., c. 22.- 8. 3. 35 V., c. 34, s. 1 . 24-25 V., c,
97, s. 3, Imp.
STUFACTORY,
MALICIOUS imrmm to property.
See sect. 183, Procedure A /■
to commit the offence charged Vl7^'"' ^"' ''' ^'''^^'
indictment for the offence. ' °*^^^' "P«" an
Indictment. — .. f"i . ,
»t"ate With i^ Jt ;it "^■''»»^ «f J. N.,
»M^ against the Lm '"''""'^ """»/«»»
Lo<^l description necessary as'u^rr'aeo 2
.A was indicted for aetHn„ b ^ '
hailding set on fire was a tt^!? ^'^^ " '""-'■»»^«- The
in the possession otZ r^Zt'^K'' "'""** '» " ^-^
bacit door of his house opened a„H ^"^ """* ^^0 *e
e^^ fences and h, Z^X^^'j^ ""'"""''-
and by a cottage and bam which wet Ie„t f r'"""'"'*
tena„^ but which did not op n intlth- . '"" ""^ »
this pigsty was an ont-honL wi M ?. ^""^ ' "'^- ""at
A. was indicted for havinir o«* « .
""" feet e,nar, the si I oTj Lhl 1" """"'-^ '-nty.
with glass windows; it was wJ ."'"'""'*
gentleman, who built honsronh, ""^ "'^^ ''>'«
purpose of disposing of them a,\ ! °? ''~'*'*y> ''<" *»
timber, as a place of deporf™. i""™'" '»'■ '^'"''"ed
timber was prepaied f f^ '""^tJ^;"'' "^ ■> Pl-™ whei.
:i:^r/r--'""Siro:^::r^^^^^
4:^v:te:\ui7:'anru:f/--^-".a
na%. but has htterly bee , u edl a 'k ' ''"'"' ""S*"
* V. Colky, 2 ^. ^ Vj i^T" "" » '"""«^ «hed only.-
An unfinished structure intended t„ t„ ,
« not a house within the m„! i ^ """^ "» « """Me
%««, 11 Cox 132 "« °^ '^ actions, v.
!-l
i
564
MALICIOUS INJURIES TO PROPERTY.
An indictment under this section, for setting fire to a
house, shop, etc., need not allege the ownership of the
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 intent to defraud, the evidence was that in 186V he
called on an agent about effecting an assurance, and that
in 1871, he called on him again, and said he had come
to reneiv his policy for £500, and paid ten shillings : Held,
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 by
the defendant's implied admission of its existence by say-
ing he wished to renew his policy. — R. v. Xewboult, 12
Cox, 148.
Malice against owner is unnecessary ; see sect. 60, 2)ost;
and intent to injure or defraud any particular person need
not be stated in the indictment, nor proved on the trial.
In Farrington'a Case, R. v. R. 207, no rhotive of ill-
feeling whatsoever against the owner of the property burnt
could be proved against the prisoner ; he was proved to 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 to it, the intent to
injure might be inferred, for a man is supposed to intend
the necessary consequence of his own act.
Under the statute, it is immaterial whether the build-
hw, house, etc., 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 R. v. Kitson, Dears. 187,
the prisoner was indicted for arson, in setting fire to his
MALICIOUS INJUHIES TO PBoPERTr. 565
own house, with intent to defraud « •
Notice to produce the n.i-Vv Z ^««urance office,
defendant, and it was held fL. '''''"^ ^''^ ^^^« o" the
policy was not admissible ''tr'. "^ '"^'^^^^^ «^ ^^^
be understood, said Jerv'is J fh"""'^ "°*^' ^^"^"^^^
necessary in all cases to pro'luc« tL f '^ '' absolutely
V. March. 1 Moo. O. 0. 182 ■'"'■' him._A
See remarks under se'cto. 2 and 3, „„fe
An indictment charring „ „ •
moaslyandmaliciousCffl"/rT '''* "■"""« fe'»-
etc, according to the form conta ned i^ll """""'""'S hay.
act 32-33 V., c. 29, fa good a^t * '*"'"''* '» ""^
aUege an intent to injure or defraud 2 ""' ""^'""'^ '»
Sec. 32 of 32-33 V ,. ,„ ™ " P™^'"""'"'-
«de by a prisoner a;'p;ovidrd rT''' r" " '""^'»'^""
used io evidence aoainst hi-n .ui , ""' '"V be
complied witli the;rvi i„n::f tf "t" ^'"^""^ >- -t
that the prisoner ,vas not7nd^„ St^^'T' '' " ^Pf*"^"
by any promise or threat ThTr, ° "■' «'«teraent
B. (N. B.) 611. ""'"'-^^^ e«*» V. SoK<«, 1 p. ^
5. Emy one who unlawrf.iiu „ ^ . *
atation. engine-house, warehouse or ot'he 't^.t '^^^ ''"^ '^ «"3^
appertaining to any railway, por^ dock nt ^ °' ''''^^"'"° ^'
SeeremarksunderUaaldtlT"'^"'-
566
MALICIOUS INJURIES TO PROPERTY.
Indictment — Berkshire (to wit). The Jurors for our
Lady the Queen upon their oath present, that on the first
day oi Jk^.j, in the year of our Lord 1852, at the parish of
Goring, in the county of Berks, A. B. feloniously, unlaw-
fully, and maliciously did set fire to a certain station
(any station, engine-housej warehouse, or other building)
the property of the Great Western Railway Company, there
situate, then and there, belonging (belonging or apper-
taining) to a certain railway there, called " The Great
Western Railway."
SETTING FIRE TO THE QUEEN's DOCK- YARDS, SHIPS, ETC.
6. Every one who unlawfully and maiiciousiy sets on fire or
burns, or otherwise destroys or causes to be set on fire or burnt, or
otherwise destroyed, 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-yard?, or building or repairing by contract in any
private yard, for the use of Her Majesty's or any of Her Majesty's
arsenals, magazines, dock-yards, rope-yards, victualling oflSces, 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 victnulling
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 liable to impris-
onment for life.— 32-33 F., c. 22, *. 6.
This clause is taken from 12 Geo. 3, c. 24. s. 1, Imp. See
ante, remarks and form of indictment under sees. 2 and 3.
SETTING FIRE TO ANY PUBLIC BUILDING.
7. Every one who unlawfully and maliciously sets fire to any
building, other than such as are in this Act before mentioned, belong-
ing to Her Majesty or to any county, riding, division, city, town,
village, parish or place, or belonging to any university or college, or
hall of any university, or to any corporation, or to any unincorporated
body or society of persons, associated together for any lawful purpose,
or devoted or dedicated to public use or ornament, or erected or main-
tained by public subscription or contribution, is guilty of felony, and
liable to imprisonment for life.— 32-33 V., c. 22, s. 6. 24-25 V., c.97,
s. 5, Imp.
MALICIOUS INJXmiES TO PKOPERTT. 667
Greaves says : " This clause is new, and an extremely great
amendment of the law. Before this act passed, there was
no statute applicable to the burning of any public build-
ing, however important, unless it could be held to fall
within the term «' 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 aU such buildings, as weU
as all the others specified in it."
See remarks under sees. 2 and 3, ante.
SETTrNG FIRE TO ANY OTHER BUILDING.
8. Every one who unlawfully and maliciously sets fire to any
buidrng her than such as are in this Act before mentioned, is
gu.ly of felony, and hable to fourteen years' imprisonment.-32.33
v., c. ii, 8. 7. 24-25 v., c. 97, *. 6, Imp.
Greaves says: "This clause is new. It wiU include
every building not falling within any of the previous sec-
tions of the act. It will include ornamental buildings in
parks and pleasure grounds, hot houses, pineries, and all
those buildings which not being within the curtilage of a
dwellmg-house, and not faUing within any term previously
mentioned, were unprotected before this act passed. The
term « building ' is no doubt very indefinite but it
was thought much better to adopt this term, and leave it
to be interpreted as each case might arise, than to attempt
to define it, as any such attempt would probably have
failed in producing any expression more certain than the
term ' building ' itself."
In ^ V. Edgell, 11 Cox, 132. it was doubted whether an
unfinished structure intended to be used as a house was a
hwilding within this section. The point was not deter-
mined.
ButiniJ. V. Manning, 12 Cox, 106, upon a case reserved,
%'i.^
f ?y
i i'
668
MALICIOUS INJURIES TO PKOPERTT.
it was held that an unfinished dwelling-house of which the
external and internal walls were built, and the roof covered
in, and a considerable part of the flooring laid, and the walla
and ceilings prepared for plastering, is a building, within
this section. In this case, Lush, J., 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. See remarks
under sees. 2 and 3, ante. See R. v. Labadie, 32 U. Q,
Q. B. 429 ; R. v. Greenwood, 23 U. G. Q. B. 250.
Defendant was charged with having set fire to a buildiua
the property of one J. H., " with intent to defraud." The case
opened by the crown was that the prisoner intended to
defraud several insurance companies, but the legal proof of
the polices was wanting, and an amendment was allowed by
striking out the words "'with intent to defraud." The
evidence showed that several persons were interested as
mortgagees of the building, a large hotel, and J. H. as
owner of the equity of redemption. It was left to the
jury to say whether the prisoner intended to injure any
of those interested. They found a verdict of guilty.
Held, that the amendment was authorised and proper,
and the conviction was warranted by the evidence.
The indictment in such a case is sufficient without jillec^.
ing any intent, there being no such averment in th°e
statutory form ; but an intent to injure or defraud must be
shown on the trial—iS. v. Cronin, 36 U. C. Q. B. 342.
SETTING FIRE TO GOODS IN ANY BUILDING.
9. Every one who unlawfully and maliciously sets fire to any
matter or thing, being in, againet or ui r any building, under such
circumstances that, if the building were thereby set fire to, the offence
would amount to felony, is guilty of felony, and liable to fuiirteen
years' imprisonment.— 32-33 V., c. 22, a. 8. 24-25 F., c. 97, s. 7, Imp.
"AUOIOUS D.TOIB TO PHOPEETT.
that.irZ\™SLr;e«t ''r'" ^''°'' --""Stances
would amount to feJv^ 1 "*^, '."' «'« '<> «■« offence
.tead of the terms used (uZellT^^' ™''-'"""*^ '-
case of iJ. V. Lyo^_ i ^^ f ™^ "" "^-^equence of the
ments as to setting fire to hnnn' v- "'^ *° ™'«*-
intent to injure or deTra^d t ^^' ""I"' '"=- """'« «»
and the ..r^s in qnta^n teTadlT'.'''' ""''" "» ■""•
both categories ; so that ff ^XTset fl" "f ' '° '""'"'''
i"g where an intent to injurror If f * *" » « b»iW-
constitnte the ofTence of the settinoT . " ''""^^'y to
(as in the cases included in LtSWh' "'"'' ''"'"'°8
this clause, as well as Chet' ni' ^^ T ""' '■'^' "'"•'°
constitute the offence of setting Are to t^i 'f,J^"^'^'y '»
the goods are set fire to fas ilT "^^'"^ "» "^^^
4. 5, 6, 7). In an indictoen" ndeTtl ^r'"'^' '" ^"*
intent is necessair to constitnJT t ''''""^' *'«'>•« "<>
to the huilding i/whilt^ "iLtr; t ""'"^ «"
sufficient to allege the setUn^^ e^^f ^ '"^ "' .-» >«
bmldmg; bat where an intentX.1 'he goods m that
m to constitute the Tff n^o^^ jT "'J''''"^ '' '"^^
i«git would seera necesslrv t„ «I1 ? ^'' *" '^^ '"■"■1-
to injure or defmud Zr . ^^' '" "'^•^'"''■' «» i»tont
ia the former cafe wiU sufflcTtfr "^ ^ ^ "-^ ''^'''--
the goods in the building but in ,?T' *' '''""8'''« ^
aUo be sufficient to satisfy the iurvtVf!!'' '^- " """''
the intent aUeged in the indictment ^™°°°'' ^
Indictment a.t •
oi««sly did set iire to T^.t^'^Z '' T'""'""^ ""'' ""^i-
b"ildingof J. N.. situate! ?! T" '" " "'^'^
against the form ^ •"-•"' ""e district of.
G«ves, if the heaporstraw'Z' IT' , ^"^'^'"S to
«* 3), the intent to injure or If '"»*««'' (as under
^«'»e.J.v.^..,,^,~ ^*"^*ould be added.
*
is m
't : il
r; }
570
MA.UCIOUS mjattiEs to property.
Where the prisoners were indicted for setting fire to
letters in a post-office, divers persons being in the house,
it was held that there was no evidence of any intent, but it
was what is vulgarly called a lark, and even if the house
had been burned, they would not have been guilty. — ij,
V. Batatone, 10 Cox, 20.
A person maliciously sets fire to goods in a house with
intent to injure the owner of the goods, but he had no mali-
cious intention to burn the house, or to injure the owner
of it. The house did not take fire, but would have done so
if the fire had not been extinguished : Held, that if the
house had thereby caught fire, the setting fire to it would
not have been within this section, as, under the circum-
stances, it would not have amounted to felony. — JR. v. Child
12 Cox, 64 ; M, v. Nattraaa, 15 Cox, 73 ; R. v. Harris, 15
Cox, 75.
It is not necessary in a count in an indictment laid
under this section to allege an intent to defraud, and it is
sufficient to follow the words of the section without sub-
stantively setting out the particular circumstances relied on
as constituting the offence. Evidence of experiments made
subsequently to the fire is admissible in order to show the
way in which the building was set fire to. — R. v. Heseltine,
12 Cox, 404.
As to verdict for an attempt to commit the offence
charged in certain cases, same as under sect. 2, ante.
See remarks under sects. 2 and 3, ante.
ATTEMPTING TO SET FIRE TO BUILDINGS.
10. Every one who, unlawfully and maliciously, by any overt act,
attempts to set fire lo any buildmg, or any matter or thing in the next
preceding section mentioned, under such circumstances that if the
same were thereby set fire to the offender would beguilty of felony,
is guilty of felony, and liable to fourteen years' imprisonment.— 32-33
v., c. 22, 8. 12. 24-26 V., c. 97, s. 8, Imp.
Indictment- f„i • ,
dwelling-house (buildinq) of J v •. ^ '^ ^ "^^^''^^
in the .1 ^i^'IJ' f • f "«t« at the parish of
ti^e said J. I^. against tS fo^ '"'^. ^'^'^ ^^ -J"«'
The words " any building » Z"Z7t^^ ^''^'^'
nected with the words " in tL . ^ ""^^^ »« con-
tioned."~-^rcA5o^ 5jg^ '^^ °«^t preceding section meu-
I^'ghting a match' by the fliH« ^r
act immediately a„d dire'ctly te^dlr^ t ^h "" '' " "»
the cr,m^_JJ. y. Baylor, l fTP.Ii "'r^''™"'"' »f
ment against two prisoiiera f„r .» • ° "" "■*■*-
pmoner had not lS"/The ttr" ? !" "' *'^' »«
eelledand eocou^ged the ^her Ua"* ' ""' ""^ "°"'-
S. V. e%«<„j, 1 c^^. 128 '""' '^^'^ convicted.-
SeeJJ.v.e„od^„„;22j/.(7.ap.338
Smmo FI»E BY NiGUGEKCE TO ANY .„..
11. Ever^ one who b, ., , ,- ^'^' ™^ ^™-
l».nler, square «imber,I„g.„,a<„;'° "^ f**'' "f ' "'•■"•ftoturM
f.°7'"' " '•"'' l«««ed or lawful vhT";,'; "'''"'*' ""''■« C">»°
tober.or OQ pr,>.,e p,„ '"".,! °',""' P"'P«« of cutting
b«i. or wbarf, «, that ,h,t^'e°,"i„'"ir'^ " ''ver, or ro)l„.;f
— ...eauor.ao, ,iaUe ^ .wo.eri^Titl?^'''^-"'^'''':
^' Jf» in the opinion nf ♦!,„
under this «ect.on%heco„s"„eSt'*' '»^«^'«g«"-ng any chaise
;n h.a discretion, dispone ofX"!, *'' "'* '^^'^ «e"ou/i.e Z
eoffender fortrialXyin,;^^^^^^ withou't aend.Tg
n d fault of pay.„ent, by thVcommittaJ nf .. '2^'"^ '^"^ '^^I'^^.of
7 tern, nor exceeding «ix monthrwUh or tir";'." ^'^ P"«°'» ^o^
33 r., c. 22, M. 9 a„^ jj, ""• «'"'» or without J,ard labor.-32.
12. Every one who, unlawfiillu o 1
uniawfuiJy and maliciously, seta fire to any
.4illi
^'
572
MALICIOUS INJURIES TO PROPERTT.
forest, tree, manufactured lumber, square timber, logs or floats, loom,
dam or slide, on the Crown domain, or on land leaned or lawfully
held for the purpose of cutting timber, or on private property, or on
any creek, river, rollway, beach or wharf, so that the same is injured
or destroyed, is guilty of felony, and liable to fourteen years' itnpris*
onment — 32-33 T., e. 22, t. II.
See sect. 183 of the Procedure Act, as to a verdict for
an attempt iu certain coses.
These two clauses are not in the English statute. Both
apply to forest, tree, lumber, etc. ; but under the first, the
act must have been done carelessly, or iu contravention to
a municipal law, whilst under the second, it must have
been done unlawfully and maliciously.
Indictment under sect. 12 quashed, for want of the
words " so as to injure or to destroy." R. v. Berthe, 16 0.
L. J. 251. Such an indictment bad, even after verdict.—
Jt.y.Bleau, 7 R.L. 571.
INJURIES BY EXPLOSIVE SUBSTANCES.
13. Every one who, unlawfully and maliciously, by the explosion
of gunpowder or other explosive substance, destroys, throws down or
damages the whole or any part of any dwelling-house, any person
being therein, or of any building, whereby the life of any person ia
endangered, is guilty of felony, and liable to imprisonment for life.—
32-33 v., c. 22, s. IS. 24-25 F., c. 97, s. 9, Imp.
14. Every one who unlawfully and maliciously places or throws
in, into, upon, under, against or near any building, any gunpowder or
other explosive substance, with intent to destroy or damage any
building, or any engine, machinery, working tools, fixtures, goods or
chattels, whether or not any explosion takes place, and whetiier or
not any damage is caused, is ^'uilty of felony, and liable to fourteen
years' imprisonment.— 32'33 F., c. 22, a. 14. 24-25 V., c 97, s. 10, Imp.
Indictment for destroying by explosion part of a
dwelling-house, some person being therein. — felo-
niously, unlawfully, and maliciously did, by the explosion
of a certain explosive substance, that is to say, gunpowder,
""""°™ m™,.s TO rsoP^HTT.
destroy a certain part nf fi " ^^
liouse. against the form ''?, ^'^ '''^ ««id dwollini:
the e=c,>I„8,o„ of g„np„»d„, r'"/"*'''"-*'' ■■> queation, by
«„t,o„ed in the indict,,, nt ^1 '''^''""' -^^'»«ce
desn,et,onof3on,ep„„of^hj;- W-ehended *«t «
■''■ '■• Lowell, 9C.d:P 437 :;7>! must be «bown -_
77 lo«ded With powder th;oul ."h 'T",'"''' "«" «"'ng
«fal,o«ae in „,,ich were a vem, l.' ''^''"''= "^""^ ''«<''
«.e Jock of the door waa blown to »ir°"'' '"^ ''y -Woh
«»ct,on. -A V. £,„^_ 3 /I ^ P-ecea, ,3 not within thia
opinion that thia case wo„H l ' ^"^ Greaves ia of
•Of -fe. Prove tlrfwa^tLTw-Tr ^""""-^ *"
a"<i situate aa deaoribed i^tb r"'"8-'>°''^«of J.N
'ke »ct waa done n,alioL„ ,1 'tlT'^T' ^™™ '^It
accident. Prove also that N 1 : "'J'^^''^ ""d not by
"■»«• No intent need be laM '" *<* *«»>«« at the
«»Pl.ort an indictment n'nder tl?\ " "''"■ '" °^^r to
to «tow aimply that gunprwde T '' " »»' ^-""gh '
«t««ce waa thrown ««ainTtI T ""''' ^^P'o^'ve a.,b
at the time it waa thrown „hh u "°"*"°" '» «^Plode
&i reault. ""»' ^'""-"gh no actual expka°o„
In,hctn^nt for blowing un „ 1.
--■'■».„i..;i:s-rt:c
/fi
674
MALICIOUS INJUIUES TO PROPERTY.
house of J. N., situate whereby the life of one A.
N. was then endangered, against the form (Adil
a count for da rniging the house with a like consequence.)
Archhold.
Same proof as under last preceding indictment, and that
the life of A. N. was endangered by the defendant's act.
Indictment for throwing gunpowder into a house with
intent, etc. — feloniously, unlawfully and mali-
ciously did throw into the dwelling-house of J. N., situate
a large quantity, to wit, two pounds of a certiiiu
explosive substance, that is to say, gunpowder, with intent
thereby then to destroy the said dwelling-house, against
the form (Add counts varying the statement of the
act, and also stating the intent to be to damage the house.)
— Archhold. See R. v. Sheppard, 11 Cox^ 302, ante.
Prove as under sect. 13, and prove circumstances from
which the jury may infer the intent as laid.
Local description necessary in the indictment. — R. v.
Woodward, 1 Moo. C. C. 323.
INJURIES TO BUILDINGS BY TENANTS.
15. Every one who, being poaeessedofany dwelling-house or other
building, or part of any dwelling-house or other building, held for
any term of years or other less term, or at will, or held over after the
termination of any tenancy, unlawfully and maliciously pulls down
or demolishes, or unlawfully and maliciously begins to pull down or
demolish the same or any part there(>f, or unlawfully and maliciously
pulls down or severs from the freehold any fixture fixed in or to auch
dwelling-house or building, or part of such dwelling-house or build-
ing, is guilty of a misdemeanor.— 32-33 F.,c. 22, a. 17. 24-25 V.,e,
97, «. 13, Imp.
Indictment. — that on J. S. was possessed
of a certain dwelling-house, situate then held by
him the said J. S. for a term of years then unexpired;
and that the said J. S. being so possessed as aforesaid, on
MALICIOUS INJURIES TO PROPERTY", 675
thp day and year aforeHaid did unlawfully and maliciously
pull down and demolish the said dwelling-house (or begin
to pull down or demolish the said dwelllng-home or any
part thereof) agai nst the form ^A rchhold
Greaves says : " This clause is a very iniportaut im-
proveraent in the law of England, as tenants have very
frequently, especially when under notice to quit, wilfully
injured houses and buildings to a great extent. "' Mr Cox
says : " Malice is of the essence of this offence. It is not
enough that it be unlawfully done, there must be a design
to injure the owner. " This is clearly wrong by the
express terms of sect. 58, post, (60 of our statute). Mr
Welsby perfectly correctly says " prove that the act was
done maliciously, that is wilfully and without any claim
or pretence of right to do it." No punishment for the
offence created by this section was inserted, because it
was thought that the common law punishment of fine or
imprisonment, or both, was the proper punishment » By
the common law, when a fine is imposed, the offender may
be imprisoned till the fine is paid.
This section only applies to any dwelling-house or build-
ing,but sect. 4, ante, provides for cases of setting fire to
any of the things therein mentioned, whether in the
offender's possession or not, and sect. Q\,po8t, extends the
provisions of the act generally to all offenders, whether
m the possession of the property or not, if there be an
latent to injure or defraud.— 3 Burn. 775.
INJURIES TO MANUFACTURES, MACHINERY, ETC.
16. Every one who unlawfully and maliciousty cuts, breaks or
de. roys, or danmges. with intent to destroy or to render uselesrany
good, or arfcle of silk, woollen, linen, cotton, hair, mohair or" paca
orof any one or more Of thone materials mixed with each otheTo;
m.xed w.h any other material, or any framework-ka t ed p ^ce
576
MALICIOUS INJURIES TO PROPERTY.
Blocking, liose or lace, being in the loom or frame, or on any machine
or engine, or on the rack or tenters, or in any Btage, process or pro.
gress of manufacture, or unlawfully and maliciously cuts, breaks, or
destroys or damages with intent to destroy or render useless, any
warp or shuteof silk, woollen, linen, cotton, hair, mohair or alpaca, or
of any one or more of those materials mixed with each other, or mixed
with any other material, or unlawfully and maliciously cuts, breaks or
destroys or damages with intent to destroy or render useless, any loom,
frame, machine, engine, rack, tackle, tool or implement, whether fixed
or movable, prepared for or employed in carding, spinning, throwing,
weaving, fulling, 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 otFences in this
section mentioned, is guilty of felony, and liable to imprisonment for
life.— 32-83 V., c 22, a. 18. 24-25 F., c. 97, a. 14, Imp.
17. Every one who unlawfully and maliciously cuts, breaks or
destroys, or damages with intent to destroy or render useless, any
machine or engine, whether fixed or movable, used or intended to be
used for sowing, reaping, mowing, thrashing, ploughing or draining, or
for performing any other agricultural operation, or any machine or
engine, or any tool or implement whether fixed or movable, prepared
for or employed in any manufacture whatsoever except the manu-
facture of silk, woollen, linen, cotton, hair, mohair or alpaca goods, or
goods of any one or more of those materials mixed with each other,
or mixed with any other material, or any framework-knitted piece,
stocking, hose or lace, is guilty of felony, and liable to seven years'
imprisonment.— 32-33 F., c. 22, a. 11). 24-25 F., c. 97, a. 15, Imp.
As to verdict for an attempt to commit the offence
charged upon an indictment for the offence itself, in cer-
tain cases, see sect. 183 Procedure Act. It is not necessary
to prove malice against owner; post, sect. 60. To prove
that the act was done m-aliciously, it is sufficient to prove
that it was done wilfully.
Taking away part of a frame and thereby rendering it
useless, R. v. Tacey, B. <k R. 452, and screwing up parts of
an engine, and reversing the plug of the pump, thereby
rendering it useless and liable to burst, jR. v. Fisher, 10 Cox,
146, are damaging within the act, although no actual per-
to pieces and separated by 1^1. « "'*"'"°» •>« ^tea
.»y part of it i, ,i,fci„ the a^t " 'I- '"^ "^'^uoWou rf
*hae. H ,„,,^-^^^^^^^
within the atatn,^. Bw f T. '' ■"" "'" Perfectly ft ;!
a"<l in Partdeat^yed by wr^f "^ "^ '«''» topC
V. T..^, 2 iJ^. ,o«r ^T^-f "^ »"*m the statute!!!^"
of the n^achine ahonM d CZn'ZT^ *"' ™^ P^
BDgement « sufflcient._» ° f', *''"<»tion or di^r-
with a hole in it for .atj I.e^'t;.' ^''^' ^^^ ^ ^atle
bncb, waa held not to be a mil " '"»«&otu-.e of
m in any mannfloW- t^J^^^P-^-J '<" or
«t«t>.te ; bnt it would no rf„,.h. '*'" ">e repealed
*e.™rda tool o. ill""' "7 ■^'"'■'' '" "« S>
.ec ,o„._3 Bum, ni ^ '""""'™<' i» the preae„"
indictment for t^,t*A
twenty.fiveyariVof^2n7^ '^ "^ '<"»--••..
•elsofj ^. i„ , eeT:?:^*°f">e goods and ohX
«»la>vfully and malioionaly L ?'" '"''"a fe'onionaly
*« '°™ ^ *' ""' ^"-^ destroy, agains"!'
Indictment for hrPnU^
7 of ail., of-;heS:Str ?r » -"«-
-«.,dy and unUwfulIy di^'*'' ""• ^■' fe^o-iously.
"V"™ ^ ^"^ ""' »■"' d^'troy, against
Indictment for ent&i^'^ i^
»Wfo cut or destroy Z^f^'V'^ " '^ «**
ta house of J. N. aitnate T T* '""^ » ««'-
*J™ter, with intent certain wlult""""";'^ ■""■ "^^ ^'o*
"■- certain ,00. then an'^1^ret:^/;Ji''^»aid^.
I m
!r !'
I
578 MALICIOUS INJURIES TO PROPERTY.
unlawfully and maliciously to cut and destroy, against the
form
Indictment for destroying a thrashing machine
a certain thrashing machine, the property of J. N"., feloni-
ously, unlawfully and maliciously did cut, break and des-
troy, against the form — Archbold.
INJURY TO CORN, TREES AND VEGETABLE PRODUCTIONS.
18. Every one who unlawfully and maliciously sets fire to any
crop of hay, grass, corn, grain or pulse, or of any cultivated vegetable
produce, whether standing or cut down, or to any part of any wood,
coppice or plantation of trees, or to any heath, gorse furze or fern
wheresoever the same is growing, is guilty of felony, and liable to
fourteen years' imprisonment. — 32-33 V., c. 22, s. 20. 24-25 V.,c.
97, s. 16, Imp.
19. Every one who 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 stere or pile of wood or
bark, is guilty of felony, and liable to imprisonment for life.— 32-33
v., c. 22, a. 21. 24-25 F., c 97, s. 17, Imp.
20. Every one who unlawfully and maliciously, by any overt act,
attempts to set fire to any matter or thing mentioned in either ot the
two pections next preceding, under such circumstances that if the
same were thereby set fire to, the offender would be, under either of
such sections, guilty of felony, is guilty of felony, and liable to seven
years' imprieonment.— ;^2-33 V., c 22, *. 22. 24-25 V., c 97, a. 18,
Imp.
Indictment for setting fire to a stack of wheat
feloniously, unlawfully and maliciously did sat fire to a
certain stack of wheat, of J. N., aginst the form
Where the word unlawfully was omitted, the judges
held the indictment to be bad. — R. v. Turner, 1 Moo, G.
C. 239. No intent need be stated. R. v. Newlll, 1 Moo,
C. a 458 ; R. v. Woodward 1 Moo. C. C. 323.
Prove that the defendant wilfully set fire to the stack of
MALICIOUS INJOEIES TO PKOPEUTT. 579
Wheat, as stated in the indictment, and prove th. „
sh>p of the property. An indictm nt JTettin, firr"
stack of bea.s, M. v. Woodward. 1 mZo l %\ "
barley, R. v. Swalkms, 4 C Ji P 54s I, \ f ' ""
court will take notice that bean!' arf p sf t i [: .'"^
com. A stack composed of the flax-plant withlb ^^'
or grain in it. the jury finding thatte fl^ ,"1
^mr$. ■tB.161 The prisoner was indicted for setting
fire to a stack of wood, and it appeared that the w,^d T,^
fe h, consisted of a sco,^ of faggot, heaped on eacrother
m a temporary loft over the gateway. Bdd this ^11
r: tr';-"*- ^ ^™' ^ ^- <^ ^- 3^«- wit : dU;!
dant set fire to a summer-house in a wood andth/fi,
'hence communicated to the wood, he C held ? T
properly convicted on an indictment chaXtm ^^
setting fire to the wood.-ij. v. Pri^, TcTp m A
mdictmeut for setting fire to a roi-t ^f u
3— under a s Jute maklg' irat I'Z .:r fi^
to a stack of hay._A v. McKeever. 5 Ir R c L RR 1
quantity of straw, packed on a lorv in co„r,« tf V'
mission,, market, and left for the i^ht in thTyaM ofTn'
ma. .s not a stack of straw within 24-25 Vict 097 ,17
Imp. (19 of our statute) and the setting firtti^to wilfu , v
and maliciously is not felony.-^. v'towtlTJ
**.«tr;!2if'"™™'^"'"^^'-''--^-v
DESTEOTIHG HOP-BIHDS, ETC.
' i
■ i !
680
MALICIOUS DfJURIES TO PROPERTY.
The words in italics are not in the English Act.
As to verdict for an attempt to commit the felony charged
upon an indictment under this section, see sect. 183 of the
Procedure Act.
Indietment. — one thousand hop-binds^ the pro-
perty of J. N., then growing on poles in a certain plantation
of hops of the said J. N., situate feloniously, unlaw-
fully and maliciously did cut and destroy ; against the
form — Archbold. See JR. v. Woodward, 1 Moo
C. a 323.
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 also that the act was
done maliciously, that is to say, wilfully, and without the
belief of a supposed right. — A rchbold.
DESTROYING TREES, ETC.
22. Every one who unlawfully and maliciously outs, breaks
barks, roots up or otherwise destroys or dam i^es the whole or any
part of any tree, sapli shrub, or any underwood growing in any
park, pleasure ground, garden, orchard or avenue, or in any ground
adjoining or belonging to any dwelling-house, if the amount of the
injury done exceeds the sum of five dollars, is guilty of felony, and
liable to three years' imprisonment.— 32-33 r.,c. 22, s. 24. 24-25 V.
c. 97, s. 20, Imp*
23. Every one who unlawfully and maliciously outs, breaks, krka,
roots up or otherwise destroys or damages the whole or any part of
any tree, sapling or shrub, or any underwood growing in any public
street or place or elsewhere than in any park, pleasure ground, garden,
orchard or a. -nue, or in any ground adjoining or belonging to any
dwelling-house, if the amount of injury done exceeds the sum of
twenty dollars, is guilty of felony, and liable to three years' imprison-
me n— 32-33 F., c. 22, s. 25. 24-25 F., c. 97, *. 21, Imp.
Indictment wnder sect. 22 two elm trees, the
property of J. N". ; then growing in a certain park, of the
««'0'0™ IWnM« TO PB„p,„^
»a.d J. N., situate ia ,, . "^^
maliciously did out and"d»r.'' fu'"'"'^'^' """lawfully »„d
to 'he -id J. N. to an ^LTuf^' ^'"'''^ "^^ ^"-g 4ury
dolla., to ^, ,^, arur/rd'.l'''^ '"-''' «-
'7;-V (^ ^nt ^y t^T^''' "S^'-^t the
««te«< to sfeai <A« treea IT "^ ■'^ ^^^S vAth
/«<«»<*««« «»der ,,,t 23
property of j. jf.. ^.^ g,o^ "';••••• *» «'«> t.^es; the
said J. N., situate .. y™S "» a certaia dose of th.
eiously did out a„d dr^at'T^t "■"«-'»% andl*^
the aaid J. N. to an a^^S ^^^H^ '"'"B inju^t
dollars, to wit, the sum of twenty fivf wV""" "' ^^^nty
SoO Ofl/, loo -.^ '5'
See sec. 183, Procedure Act « ,
attempt to commit the offence char^^ a verdict for an
for the offence, in certain cas^ '^^ "I"" "» i-dictment
A viinanee in the number of t™ •
™st be proved, under sect. 22 tiaH;' T "'»'^"^'- "
".a part, and that the damage dl '* ""^ ^^^i-g
Under sect. 23, the dar^rmt?;''*!''' "^ «'<'«»«.
•ad the trees g,^wi„g eWher ^hr' '"^"'^ ''o"-^.
amount of injury d„ J means' "" * I«* The
«.« trees, by the defendanral T" "-"'"^^ ^""^ to
bnagthecase within thestatute^L,ul°°' '"^^'^'^^ to
»f sach actual injury ;, C' '7' f''"''^'' 'he amount
a»»unt of consejuenLl dama'!^ Tf'^ •'°"-^' 'he
*r». iJ. y, ^^^ »^aS would exceed twenty
»*r these sections is def 0^7^ f'f ^^ ■"diotment
«t to have been done u^lJf'n ^"^^ »°t alle« the
l» not sufficient to ^^^K!^""/ -"^-^4 and
i
582
MALICIOUS INJUKIES TO PROPERTY.
Two indictments were preferred against defendants for
feloniously destroying the fruit trees respectively of M. and
C. The offences charged were proved to have been com-
mitted on the same night, and the injury complained of
was done in the same manner in both cases. Defendants
were put on trial on the charge of destroying the trees of
M. and evidence relative to the offence charged in the
other indictment was admitted as showing that the offences
had been committed by the same persons.
Held, that such evidence was properly received. The
Queen v. McDonald, 10 0. jB. 553.
DAMAGING TREES TO THE AMOUNT OF TWENTY-FIVE CENTS.
24. Every one who unlawfully and nialiciouely cuts, breaks
barks, rot^>t8 up or otherwise destroys or damages tlie whole or any
part of any tree, sapling or shrub, or any underwood, wheresoever the
same is growing, the injury done being to the amount of twenty-five
cents at the least, shall, on summary conviction, be liable to a penalty
not exceeding five dollars over and above the amount of the injury
done, or to one month's imprisonment, with or without hard labor •
2. Every one who having been convicted of any such offence, either
against this or any other Act or law, afterwards commits any of the
offences in this section mentioned, shall, on summary conviction be
liable to a penalty not exceeding twenty dolla'-s over and above the
amount of the injury done, or to three months' imprisonment with hard
labor :
3. Every one who, having been twice convicted of any such offence,
afterwards commits any of the offences in this section mentioned is
guilty, of a misdemeanor, and liable to imprisonment for any term
less than two years.— 32-33 V., c. 22. s. 26. 24-25 V., c. 97, s, 22,
Imp.
If the injury done does not amount to twenty-five cents,
the defendant may be punished under sect. 59, post.—B.
V. Dodson, 9 A. <& E. 704.
If a tree is cut or damaged, that is sufficient ; it need
not be totally destroyed.— »ri^Zor's Case, R. &R. 373.
MUIOIOTO IHJORIES TO PKOPBilT.
tree, the property of J n" fi,L „' ''•°'' °™ *'">
of the Jd J. N i„ a,; ^ ?« "■' " '=^''*'" '»»<»
cioualy did cut and dan,,- "Z'l """"'"'''"y ""d mali-
the safd J. N., to theTmo ;ar„f ^"^ f'" """^ ■■"J"^^ *»
^™ of the ..at„te i» rriirij^^ir?^
Wore mentioned t«^7"7'"»S "' .'"« "«•»- ierein-
Secseca. 139 and 2w7.t P T'^"'" '-'nvioti^.)
p.vio„sf,j;-tr^^en...^^^^^^^^^
may be inflicted on that account. Punishment
If in answer to a champ nnAa.1 ^u-
da. t set. up a bond ml^^'^^ T'^^^' ""'"■
pe-ce have no j„H3diotion.-/v.Ti;4t TqT^'i^
DESTKOHNG PLANTS, ETC., ,N A GAHDZN
23. Everjr one who unlawfullv anH «,oi- • , ,
ages wuh intent to destroy, any pL^t^root V''^"* ' '"' "' '*'"■
tion. .^rowing in any gaMen orchaS n ^ *"" "^"^'^''^^^ P'-«*i"«-
gree„-hou,se or con;ervator;7hIir^;'"^^''"""^' '»«"««' '^^^-house
to a penalty not exceeding f^enty dolLT n '"*'^ "/?'"*'""' ^« ^'^^le
Of tl.e injury done, or to Lretont^f LT/ '"' ^'^^^ "'^ '^"-""t
Lard labor : ^''^ imprisonment, with or without
offcnee, i„ thi, section mention.^ "'",'""<'= """--.ite any of ,h.
t»o year,' in,p„-,o„„e .." 32.M r' T 2? ';r t'""^' *"" "'">'' «<>
/«ii. ^"■"'•.i!. 22,».27. 24.25K,e.97, ,. 23_
i^I
If 'j -vj
M 'I
) ■
584
MALICIOUS INJUBIBS TO PROPERTY.
that account, a greater punishment may be inflicted.— il.
V. Martin, 11 Cox, 343.
Indictment for destroying plant? after a previous
conviction. — ....,. that J. S., on one dozen heads
of celery, the property of J. N., in a certain gai-den 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 lue jurors aforesaid
upon their oath aforesaid, do say that heretofore and before
the committing of the offence hereinbefore mentioned
(state the previous conviction.) And so, the jurors afore-
said, 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
t J.K, situate then growing, feloniously, unlawfully
and maliciously did destroy, lagainst the form
DESTROYING PLANTS, ETC., NOT IN A GARDEN.
26. Everyone who unlawfully and maliciously destroy?, or dam-
ages 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 grow ing in any land
open or inclosed, not being a garden, orchard or nursery ground, shall*
on summary conviction, be liable to a penalty not exceeding five dol-
lars over and above the amount of the injury done, or to one month's
impneonment, with or without hard 'abor, and in default of payment
of such penalty and costs, if any, to imprisonment for any term not
exceeding one month :
2. Everyone who, having been convictedof any such offence, either
against this or any other Act or law, afterwards commits any of the
oflfences in this section mentioned, shall, on summary conviction, be
liable to thr.tf months' imprisonment with hard labor.— 32-23 V c
22, s. 28. 24-25 V., c. 97, *. 24, Imp.
See remarks under the last two preceding sections.
INJURIES TO FENCES.
27. Every one who, unlawfully and maliciously cuts, breaks,
I
throws down, or in an ''
whatsoever, or anv w«ii T,® destroys any fe„ce of «n, ^ .
The act must havp ha j
able under this clauae "^v'TIr ^'^ *^ ^« P^-^'sh-
564. ^- ^- ^^<^d6haw, 38 IT. C. Q, b
INJURIES TO MINES.
28. Every one who unlawfnii
c. yi, s. Z6, Imp. ^^ <id r., c. 22, s. 30. 24-26 T.
"0"W b. guiltj. of feio i, lmr„f r*'' "" "" '»' »l'e off.„d°r
;;" ■"■p'--.ent-3^i ^::!:',5 . -- •»««•«. .» four;
The words in i<a;i<» .
It « equally an offence ImT^-" ""'*"'" ^'=*-
« »"oe in the poaseaaion of t itt r""? "^ '^' «■* <»
"proved to be done with inten. 7^. ''""'''"'' ^o^'-M it
other person. The mine Tv /"i""' "' ''^''""«" »y
t'e person in possess^ f orCo'rfc"' " ""^ P~P-ty of
Indictment . f i . '
^'yaidsetii.;;:;;:;— ^.-^^^^^^^^
"^ against the form ^ °^ -^^ ^-^ situate
^H^^Bt i
'fpP^ I'- I
I
I) ' !
111
II i
'f f
586
MALICIOUS INJURIES TO PROPERTY.
DROWNING MINES, ETC.
310. Every one who unlawfully and inaliciouely causcR any water,
Pvi. . . vtibbish or other substance to \>e conveyed or l.> runor fall into
' iv tiufie, or into any oil well, or into any Hubterraneous passage coin-
iiiunicating therewith, with intent thereby to destroy or damage such
mine or well, or to hinder or delay the working tliereof, or who, with
the like intent, unlawfully and maliciously pulls down, fills up or
obstructs or damaijcs with intent to destroy, obstruct or render useless
any airway, waterway, drain, pit, level, ir shaftofor belonging to any
mine or >. . ti, is ^auiy of felony, and liable to seven years' imprison-
ment:
2. This section shall not extend to any damage committed under-
ground by any owner of any adjoining mine or well in working the
same, or by any p^^rson duly employed in such working.— 32-33 F,, c.
22, 8. 32. 24-26 V., c. 97, s. 28, Imp.
The words in italics are additions to the English statute,
and intended, no doubt, as in the last two preceding sec-
tions, to protect petroleum wells.
See the remarks under these two sections.
Indictment for drownin g a mine. — feloniously,
unlawfully 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
Acts causing the damages mentioned in this section
done in the bonS, fide exercise of a supposed right and
without a wicked mind are not indictable. — R. v. Matthews,
14 Cox, 5.
DESTROYING OR DAMAGING ENGINES, ETC., USED IN MINES.
31. Every one who unlawfully, and maliciously pulls down or
destroys or damages with intent to destroy or render useless any steam
engine or other engine for sinking, draining, ventilating or worki;ig,
or for in anywise assisting in sinking, draining, ventilating or work-
ing any mine or oil well or any appliance or apparatus in connection
with any such steam or other engine, or any staith, building or erec-
tion used io conducting the business of any mine or oil well, or any
HAtrciors IN..R,,, ,, ^^^^^^^^
bridge, waggon-way or track fnn • "''^^'' ^87
m.neorweJI, ^vhether h.L f '^' '*'" "''^"'K n>'-reral« or oil fro
;v%'gon-.a,or trae^^^n p rort"'' '"''^'^^' ^^^ ^^^^
M]y and n.alicious/y «ton« n 7 . *" "nflninhed state or nnT
«"cl. «team or other . ol?' or or"' ""* '''"'''' '''' ^'^^ of a?"
l«a any rope, oi.ain or tackle o^w 1^ "" ^'^"-"^ «>• '«"Jer usi'
ma.le, u«ed in any „,ioe or oi we,, ^J''^/^"*'^^'' '"aterial the «a,„r^
railway or Cher way or other Jo ,c whl^ "" "'"'^ ^"^ '""^''-d Z^
apperu,n,„g to or connected I' u.o'"';"' '" '*"^^'«« ^'^'ongin;
we I. or the working or bu«i„e«3 ^^ "^.'"P^^;^^ '" '^"^ mine or o"l
-^3;eare.i.p..n.ent.i;?^;-^
See sect. 183 of the P
an attempt to commit th/offenTi'* ".' '" " ™""'" f"'
ftove that the detenC^XiP"' '" ""'»''' «-»•
enpne, as alleged. A acaffoH . ? "' <'««'>-oyed the
«bove the tottom of a r^ZZ h "' ""^ *^"'»™
vera of coal on a level wimVi! ^"''P"* "'' wrtine a
an e^o^ion used in ll^; tM't" ^^ ""'O- '"i:
witliin tlie meaning of th. ,, '"■smess of the mine
SO., P. 234.-vf:lS,;te uir'^- '^ '"^^'^^'^Z
"(.on, without its proper Ll ^ ' s'eam-engine in
•k-ebydamag.ngitXXtrrT''^'' '° ■•'• «'"»
"■"""i by a steam-engine but "ft .''^^^g'^g a drum
" "ot damaging a sl^am-on gine »' " '"""^ "» P"'-
"i"-"*- A trunk of woo^uZ t!""^' "• '^*^'-»J'W
"e earth from the ore Z.^tliJT'"'' ""''' '» -^
""■iJuctiug the busip..33 of » *" "*'="™ "sed in
r 2
f •
ri ^
': .
,"^'
••
'5-
t ,
a
4 ti
f
«
«•!%,-
^
•4
.■;^
■f
688
MALICIOUS INJURIES TO PROPERTY.
mine of tho said J. N., situate feloniously, tinlaw-
fully and maliciously did pull down and destroy, agujnst
the form
Acts causing the damages covered by this section must
be done maliciously, and not in the bon^ fide exercise of a
supposed right, to be punishable under its terms, R, v.
Matthews, 14 Cox, 6.
INJURIES TO SEA AND RIVER BANKS, AND TO WORKS ON
RIVERS, CANALS, ETC.
82. Every one who unlawfully and maliciously breaks down or
cute down, or otherwiHe damages or d»'8troy8 any oea bnr k, sea wall,
dyke or aboiteau, or the bank, dam or wall of or belonging to any
^iver, canal, drain, reservoir, pool or marsh, whereby any Unil or
building is, or is in danger of being overtlowed or damaged, -oniniaw-
fully and maliciously throws, breaks or cuts down, levels, undermines
orotherwine destroys any quay, wharf, jetty, lock, sluice, floo-lgate,
weir, tunnel, towing-path, drain, water-course or other work belonging
to any port, harbor, <lock or reservoir, or on or belonging to any navi-
gable water or canal, or any dan) or structure erected to create
or utilize any hydraulic power, or any embankment (or the support
thereof, is guilty of felony, and liable to imprisonmeut for life-
32-33 v., c. 22, *. 34. 24-25 V., c. 97, *. 30, Imp.
33. Every one who unlawfully and maliciously cuts off, draws up
or removes any piles, stone or other materials, 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,
harbor, dock, quay, wharf, jetty or lock,— or unlawfully and malici-
ously opens or draws up any tloodgate or sluice, or does any other in.
jury or mischief to any navigable river or canal, with intent and so as
thereby to obstruct or prevent the carrying on, completing or main-
taining the navigation thereof, is guilty of felony, and liable to seven
years' iraprisonment.— 32-33 V., c. 22, *. 36. 24-25 V., c. 97, s. 31,
Jmp.
Indictment under sect. 32 — a certain part of the
bank of a certain river called the river situate
feloniously, unlawfully and maliciously did cut down and
WALIOIOUS INJURIES TO PROPEHTY. figg
br..Hk down, by moan, whereof certain lands were th^n
overHowed and damaged (or u^re in CgZ ",
against *'*" )
Indictment under sect 33
fixed in the ground, and then n::iZ^^^J'^'^Z
of a ceiiaiu river called the river "°"""8 "«' '""'k
See Ji. V. Woodward 1 Moo. C. C. 323
INJURIES TO PISII PONDS.
34. Every one who unlawrnllir a^A i- .
b,e.k, down or o.herwi.. I'^^,"",t Z^S T "•"^'"^■
any IU.-|»nJ. or of .„, „.u.r „S . J ' «"'"' ""■ ''"i« »'
.her. i, .„y private rigL offl ^ J urir„f TT " '» "'"°''
tl,. lo,, or Je..r„cUo„ of InvT, .tXr.^':"' 7 " 'hf''^ '"oauw
ou.ly puU .„y ,i„.e „, „,„ J n'^u. IX .r/r'^J''' """ "••'-■
..ter, »itl, i„ui„t ll,erebv to deWrov anT J.l J , { '"* '»"'' °'
.l,a.n,.y.„ere.fter ta pj. ...e^^f-: 'ul'l";" '^r "V";™ "
CM tlirough, b™.k, down or otl,er»i,e de,tml .k , """''"'""•'y
or .„y .„il|.p„„d. r«rvoir or poor *n r„f ' '!?" •"• ''°°^«""
li.Wc to seven year,' impri,o„m«,t-32.33rI * "•""ieme.nor, and
c. 97, ». S2, Imp. ' " '^' "• •'2, ». 36. 2425 r.,
Mktimntfor breaHng down the dam ofafiA-pond-
'\ "^T °f " oo'tein fiah-pond of one J N ,^
■■■■ •'^"'""y and maliciously did break ICa^d
estroy „,th .ntent thereby then to take and destlv th»
fi.h .„ t e said pond then being, against tbeLT "' '
ndtdment/or putting lime into a M^pondZ
unlawfully and maliciously did nnf » i„„ ^"''—
.Hn^esaid^urtnt:^^^^^^
Imd^ntfor breaHng down a miU dc^ZZZ
690
MALICIOUS INJURIES TO PROPERTY.
the dam of a certain mill-pond of J. N., situate
unlawfully and maliciously did break down and destroy,
against the
Malwiously in all cases under this act means a wrong-
ful act done intentionally without just cause or excuse. R.
V. Matthews 14 Cox, 5 ; 2 Russ. 1073, note hy Greaves.
— See Procedure Act sec. 183, as to a verdict for an attempt
to commit the misdemeanor charged in certain cases, upon
an indictment for the misdemeanor itself.
INJURIES TO BRIDGES, VIADUCTS AND TOLL-BARS.
35. Every one who unlawfully and malicioudly pulls or throws down
or in anywise destroys any bridge, whether over any stream of water or
not, or any viaduct or aqueduct, over or under which bridge, viaduct
or aqueduct any highway, railway or canal passes, or does any injury
with intent and so as thereby to render such bridge, viaduct or aque-
duct, or the highway, railway or canal passing over or under the same,
or any part thereof, dangerous or impassable, is guilty of felony, and
liable to imprisonment for life. — 32-33 V., c. 22, s. 37. 24-25 V. c.
97, s. 33, Imp.
This clause by the words over any stream of water or
not does away with the difficulties raised in R. v. Oxford-
shire, 1 B. & A. 289-297, and R. v. Derbyshire, 2 Q. B.
745.
The .clause 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. 58, post, and if
less than that sum within sect. 59, post.
Indictment for pulling 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 maliciously did (state the injury) a cer-
tain bridge, situate with intent thereby to render
MALICIOUS INJURIES TO PROPERTY gg^
de«d dangerous orimp^aatLy ra„t 7;;?^'™-
..pon a. indictment for tie offle iS " " "^'
l^ESTKOYING TUKSPIKK G.r.„, TOU-BAR., ETC
toll-bar, or any wall, chain, rail r^„ ,.' ""'': '"" ""»Pit« g""- or
any turnpike gate or' Wl-bC^,,'^'''';;^',:^''- '•«»- W-.ing .0
paxing by without paying any toll diLl^rT k *"!"'" P"™™g<'«
to relating thereto, or any house bu M „1 f "^ ""^ *<" »'
for the better collection, .,LZL„'f!'^'''"«™e'"<' «'«'«'!
tuilly of a misdemeanor, and Uablc to fin. " ^ °' ""' ""=" ">"• ^^
in the discretion of the «>„,l ^2 33 "°V'„'""";"<'°"'^"'' " •»«>.
». 34, Imp. "^"^ '^^ "• 22. 0. 38. 21-25 K, ,,. 97,
Indictment. — .... » „„,.„; ,
^aee c. 181, post, sees. 24, 26 and qi o. +
*, ^o ana dl, as to punishment
INJURIES TO RAILWAYS AND TELEGRAPHS
any portion thereof; be.:^;:;^^^^^^^^^^^^ -"^ - ^'^'"^-J
-IIP
m
Pi
I'
1; I
592
MALICIOUS INJURIES TO PROPERTY.
^1 »^ ■ -3
Cp^ ^-..g^-^i^--,^j^^ag-|Hg
1
W - '* s^ JIS l^^'T^^K^i
1
(,d.) Makes or shows, hides or removes any signal or light upon oj
near any railway, or
(e.) Does or causes to be done, any other matter or thing,
Is guilty of a felony, and liable to imprisonment for life. — "2-33 F,,
c. 22, s. 39. 42 F., c. 9, s. 88, part. 44 F., c. 25, a. 116, jjar<. 24-25
F., c 97, s. 35, /»ip.
38« Every one who unlawfully and maliciously —
(a) Breaks, throws down, injures or destroys, or does any other
hurt or mischief to,
(6.) Obstructs or interrupts the free use of, or
(c.) Obstructs, hinders or prevents the carrying on, completing,
supporting or maintaining of
Any railway or any part thereof, or any building, structure, station,
depot, wharf, vessel, fixture, bridge, fence, engine, tender, carriage,
truck, vehicle, machinery or other work, device, matter or thing of
such railway, or appertaining thereto or connected therewith,
Is guilty of a misdemeanor, and liable to five years' imprisonment.
—42 v., c. 9, ss. 87 and 90. 44 F., c. 25, ss. 116 and 1 18.
39. Every one who, by any means, or in any manner or way
whatsoever, or by any wilful omission or neglect, obstructs or
interrupts, or causes to be obstructed or interrupted, or aids or assists
in obstructing or interrupting, the free use of any railway or any part
thereof, or any building, structure, station, depot, wharf, vessel,
fixture, bridge, fence, engine, tender, carriage, truck, vehicle,
machinery or other work, device or thing cf such railway, or apper-
taining thereto, or connected therewith, is guilty of a misdemeanor,
and liable to two years* imprisonment. — 32-33 F., c 22, *. 40. 42 V.
c. 9, s. 86. 44 F., c. 25, s. 114. 24-25 V., c 97, a. 36, Imp.
40. Every onei who 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, electric light, telephone or fire alarm, or in the working
thereof, or for the transmission of electricity for other lawful pur-
poses, or unlawfully and maliciously prevents or obstructs, in any
manner whatsoever, the sending, conveyance or delivery of any com-
munication by any such tel -graph, telephone or fire alarm, or the
transmission of electricity for any such electric light or for any such
MALICIOUS imK^Es TC PBOPERIV. 593
purpose a8afore.«aid, ia guiltv nf o • j
41. Every one who unlawfuHv an.l m„i- • ,
attempts to commit any of the oL„cL ;' 1^"^ ^' ^^ ""^ «^^^^ ««*,
mentioned, shall, on nummary con.icln t'." ?■ '"■''^^•^'"" «^«''0"
exceechng fifty dollar., or to three montL^-^*^'' ^^ * P«"-'ty not
wuhout hard labor.-32.33 F., c 22 7^ JTr""'''''' ^'^^ or
See sec. 25 of c. 162, page irr U "r* ''r'''"^''
sec. 40 to ifg^e^Ao/ies electrir 1 'hJ^ 7 extension of
to the transmission of dectrilT fT '^'"' '*^"^^' «^
See sec. 183 of the Procedure J , *^'*'^' ^« "^w law.
attempt to comn.it the offence charged in Ul^nT'"' ''
The words "endanger" and « ^"^ °^''^^«-
over and along any Railway "in 'ec'^V'"'^ ^""^"«"
Imperial Act. ^either are the words " h ''t "°' ^" '^^
destroys," nor "railway switch brTd'f'f. f^'' ^"J"'^« °^
The prisoners were indicted in ^ T^ ^^'^^- ^^«- b-
and maliciously niacin, a so '''^ '"""'^ ^^^ ^^^^""7
. , -^ F'-x^'iig a stone upon the NnrH, w . ■ r
Bailway, with intent to damaw inl T Woolwich
carriages travelling npou it ° ' "J"'' '*"'' <"'^'™ct the
It appeared that the prisoners wl,„ ,
aged thirteen and fourteen hid J .'' '•''^P'"=«^'='y
"""way in such a way a, to i.tf'^ * ''""" '•» *«
oftho point,, and prLnt ?h 1"' "'"' ""e machinery
'katifatraii'i had ^te „1 at"e t'"" T'^ P™""''^' »
.« placed by the prisone^^ w„„ Id hl''^^'"''"""--^
'«e line, and a sedoua aeeidenH" t ^ve ,T T^' "^
«i=q"ence. Gutteridge held un Z ? "'" ''°"-
topped in the stone? '^ P°""' «'''"^' Upton
VVightman, J., told the jury that in „n,i .
P'waers it wa, neeessarv in ,7 V '"' '° ''°''"'=' ««
% had wilfully r dTC "' '''''°^' 'o P"^^ "'=''
y placed the stone m the position stated
00
= -•«
' "223
1
594
MALICIOUS INJURIES TO PROPERTY.
upon the railway ; and secondly, that it was done mali-
ciously, and with ^he purpose of causing mischief. It was
his duty to inform them that it was not necessary that the
prisoners should have entertained any feeling of malice
ac^ainst the railway company, or against any person travel-
ling upon it ; it was quite enough to support the charge if
the act was done with a view to some mischievous conse-
quence or other, and if that fact was made out the jury
would be justified in finding the prisoners guilty, notwith-
standing their youth. They were undoubtedly very young ;
but persons of their age were just as well competent to
form an opinion of the consequences of an act of this
fescriptiou as an adult person. Verdict, guilty upon the
counts charging an intent to obstruct the engine. — R. v.
Upton (Greaves Lord Campbell's Acts, Appendix).
Indictment under sect. 37. — 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,
e cainst the form — Archhold. (The intent may he
laid in different tuays, in different counts, if necessary.)
Prove that the defendant placed tho piece of wood upon
or across the railroad as described in the indictment, or was
present aiding and assisting in doing so. The intent may
be infe^^^d from circumstances from which the jury may
presume it. In general, the act being done wilfully, and
its being likely to obstruct or upset the railway train,
would be sufficient prlmd facie evidence of an intent to
do so. Where the engine or carriage is iu fact 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 mentioned iu sect. 37, the defendant
should be indicted for a m,%.^
structed under an Act of Pariiin. . f° "'' "'""V con-
fo.' public tafflo. and uaedonfXth' ""' ^"^ "''^"'^<'
an>. workmen, is within the LZl f,"""^ °''"''"'™1«
man got „poa the mi!«ay and'Tlf "^ "" ''™"'^«»
and thereby caused a uZot , ""'"^ *« «8™ls
proved at a ..,y s.o^ pa« :Xi „'" '" """ "^ -<•
Marfn, B. dissentient." that thfawa, '""'"'"'''^•'■
engine and carriage usin^ a Jn ' """'"S »' an
within the meaning „f se^t Se^lT^ *" ''^ "^structed
.0. in question.-^, v. ffadJuMn toTlT'^'f "* ">«
"nproperly went nnon a line „f V-, "^- ^!*'-s<"'
attempted to slop a train a„„ro,Pi;i ■! "^ "'"^ Purposely
the space between two UuT^^ 1 ^'^ ^'""'"^ ^'^o^K ol
arms in the mode adapted by iT^'l ""'' ''"'*''« "P 1»3
«r„„s of stopping » Lin ^Sl°? .f- '"^ ^'"^ -"»
the offence of unlawfully obstru,^' ' "raounted to
>.™g a railway under s^ct S'"" '"«'"'' °'«'«»8o
statute in question.-ie. v.' jyJZ ?', °;" '"^""'') <>f the
Mi^ment und., sec. srT- " ""''' ''»•'•
TheJurorsforOurLadvtheo',, ^e^'hUre (to wit)
that on the/™, day S'l^nh' """"' *"^''^"> P^-4
at the parish of ffoL. in «''/'"' "^"'"^'^ 1852
fek«iously, nnlawfull/'a„7l7''."'^°f *«*', ^- ^- ^d
^«™», 0. <^i.^Z«.; a certain ti'r;' '^'^ "P ('* «P
olkr^^atteror thing) then a„d there C'' ""*'■ ^'^^^'•. <>-
»"way there, called "The Qr^'^°T^'°'''^^^
«th intent, etc, (Cond^ asTlI '"'■^'^'^'^y."
minis and intent.) '^' l»-^o^mt. Vary
''"''^'"lent under mc. 37 e —
tt lumrs for Our Lady the n„„ "<"-*sfo« (to wit).
•^•t on the/.. ,., of^it^er. oftT ~'
H—
596
MALICIOUS INJURIES TO PROPERTY.
i.
at the parish of Ooring, in the county of Berks, A. B. did
feloniously, unlawfully, and maliciously turn [hirn, Dwve,
or divert] certain points [any points or other Tnachinery]
then and there belonging to a certain railway there called
" The Oreat Western Railway" with intent, etc. (Coti-
elude as in last precedent. Vary counts and intent.)
Indictment under sec. 37 d. — Berkshire (to wit).
The Jurors for Our Lady the Queen upon their oath present,
that on i\\Q first day of May, in the year of our Lord 1852
at the parish of Ooring, in the county of Berks, A. B. did
feloniously, unlawfully, and maliciously make (make or
show, hide or remove) a certain signal (any signal or light)
upon (upon or near to) a certain railway there, called
** The Qreat Western Railway,'* with intent, etc. (Con-
clude as in the lust precedent. Vary counts and intent.)
Indictment under sec. 37 e. — Berkshire (to wit).
The Jurors for Our Lady the Queen, upon their oath present,
that on the first day of May in the year of our Lord 1852,
at the parish of Ooring, in the county of Berks, A. B. did
feloniously, unlawfully, and maliciously set fire to (do or
cause to he doTie any other matter or thing) a certain car-
riage, then and there using a certain railway there, called
" The Oreat Western Railway," with intent ♦hei-e'^y then
and there to destroy [obstruct, upset, overfhroiv, injure
or destroy] the said carriage [any engine, carriage, or
truck, usinq such railway], so then and there using the
said railway as aforesaid. ( Vary counts and intent.)
INJURIES TO WORKS OF ART.
4:2. Everyone who unlawfully and maliciously destroys or dam-
ageh any book, manuscript, picture, print, statue, bust or vase, or any
other article or thing kept for the puriwses of art, science or literature,
or as an object of curiosity in auy museum, gallery, cabinet, library
or other depository, which museum, gallery, cabinet, library, or other
"^"""'^ ™^»'^S TO PHOP^^
(Jeposifory is, either at all f ' ^^
place ofd,v,„e Xr,!;'" ""''.'"■"rol., cha^l.t^f '•^"■■""-•■■"Onu-
moninnenl e]cnoMdl,,.'^''''°S"'<'«" or ground /■*•"""■•
or o.„„ .i.ig o?ru ;i,rr T '' -" -^ 2a?„ ',r; ^-r
■quare or other public jff"' "ood or olhermaterial i„ r'^' '^'■
r«»-er d„„rageXr. ""^ ''"" ««« "■• rigluofa
2^-2^ r.. . ,f.: s; '^:;-""'' «— 'w-sS r.:r ^^--^^
INJURIES TO CATTTT. .
" ^^AiTLE AND nTwi?n .
z:^':^^ '■"•'"- '"^ -till .'°gu,',":':' n'^ """• ■"«■""».
44. Every one who unlawful?
n;ain, wound, poison or injure anv clr''"'"""^^ ""«'"Pt« to kiJJ
ciously places poiaon in surl. u *"^.^*"'^' or ""JawfulJv an,!.
AS to the punishment undnr ,»„ a,
««• Si 26, 31. " ''"'• H see, post, c. 181,
""good, and chattels of J ^fT'^ "^ horse of
01 cattle Uled, maimed, wounded,
* I'l
I"
M
i
698
MALICIOUS INJURIES TO PROPERTY.
poisoned or injured, must be specified ; an allegation that
the prisoner maimed certain cattle is not sufficient. — R. v.
Chalkley, R. & R. 258.
No malice against the owner is necessary; post, sect.
60. Other acts of administering poison to cattle are
admissible in evidence to show the intent with which the
drug is administered. — R. v. Mogg, 4 C. <& P. 364. The
word wound is contradistinguished from a permanent
injury, such as maiming, and a wounding need not be of
a permanent nature. — R. v. Haywood, 2 East, P. C. 1076;
R. & R. 16.
In R. V. Jeans^ 1 C. & K. 539, it was held that where
part of the tongue of a horse was torn off, there was no
offence against the statute, because no instrument was used.
But, under the present statute, the same act was held to be
a wounding within this section. — R. v. Bulloch, 11 Cox,
125. Upon a case reserved, in R. v. Owens, 1 Moo. C. C.
205, it was held that pouring acid into the eye of a mare,
and thereby blinding her, is a maiming. — Setting fire to
a building with a cow in it, and thereby burning the cow
to death, is a killing within the statute. — R. v. Haughton,
bCiSh P. 555.
The prisoner by a reckless and cruel act caused the
death of a mare. The jury found that he did not intend to
kill, maim or wound the mare, but that he knew that what
he did would or might kill, maim or wound the mare,
and that he nevertheless did the act recklessly, and not
caring whether the mare was injured or not.
Held, that there was sufficient malice to support the
conviction. — R. v. Welch, 13 Cox, 121.
In an indictment purporting to be under 32-33 V,, c. 22,
s. 45, for malicious injury to property the word " feloni-
ously " was omitted.
^ -ff^W, bad, and ordered t„ ,, ''^
O^^yA, 3 0. A 402. " "" 1'"'"'e<l-r/« Q„,„ ^
J«ll«r., over a„d .IV^' ''"* "" • Penally notT«edr""' """'• »"
^"^P- ''^•^ ^■> <=' 22, ,. 47. 24-25 ^ ' '" '^'®
■ine words in UnJ^^c.
, ^» ^ '"e Kooetdts™ r ' '■" '"^ I'«l»™l Act
38 and 207 of the pX ^ ^^7 ' '"^^''-' - -o,
*- v:::,.f; 7 r ^^2:and^^'':^r■^'■™-
-.alicions injur^;' '' -r'" protect domestic^antlrT^-
"mcludes any bird hT ^ ' ™™ ™<i pigeon., « '
MALICIOUS INJURIES TO PEOPEETY,
kept, and do not render it necess. y to prove that the bird
or animal was eonfiued at the time when it was jj, md
Las'tly the clause includes any bird or animal kept fop uuy
domestic purpose, which clearly enibraces cats.''
The words or purpose of lawful profit includ. d iu our
statute cover all animals kept in a circus, mena^ rie. etc.
INJUUIE8 TO SHIPS.
46. Every one who unlawfully and maliciously sets fire to, casts
away or in anywise de-troys any ship or vessel, whether the same is
•omplete or in an unfinished state, isguilty of felony, and liable tcim-
prisonment for life. -32-3.3 V., c. 22, s. 48. 24-25 V., c. 97, *. 42, Imp.
47. Every one who unlawfully and nialiciouH sets fire to or
casta away or in anywise destroys any ship or vessel, with
intent thereby to prejudice any owner or part owner of such siiip or
vessel, or of any goods on board the same, or any person who has
underwritten or who underwrites any policy of insurance upon such
pliip or vessel, or on the freight thereof, or upon any goods on board
tlie ■same, is guilty of felony, and liable to imprisonment for life.— 32-
33 v., c. 22, s. 49. 24-25 V., c. 97, s. 43, Imp.
48. Every one who unlawfully and maliciously, by any overt act
attempts to set fire to, cast away, or destroy any ship or vessel, under
such circumstances that, if the ship or vessel were thereby set fire
to, cast away or destroyed, the oflfender would be guilty of felony, is
guilty of felony, and liable to fourteen years' imprisonment.— 32-33
v., c. 22, s. 50. 24-25 V., e. 97, *. 44, Imp.
Indictment undfir sec. 4:Q — that J, S., on
feloniously, unlawfully and maliciously did set fire to a
certain ship called " the Eattler," the property of J. N.,
against the form
As to setting fire, etc., see notes under sections 2 and 3,
ante. — A pleasure boat, eighteen feet long was set fire to,
and Patteson, J., inclined to think that it was a vessel
within the meaning of the act, but the prisoner was
acquitted on the merits, and no decided opinion was given.
—R. V. Bowyer, 4 C, <fc P. 559. Upon an indictment for
it the bird
,3 II
'j'
pt for any
3t;d in our
ignrie. etc.
Ire to, casts
he same is
liable (, im-
, 8. 42, Imp.
I fire to or
essel, with
ch 8lii|i or
)n who has
upon 8Hch
la on board
or life .-32-
y overt act
Basel, under
eliy set fire
f felony, is
ent.— 32-33
m
fire to a
of J. K,
1 2 and 3,
et fire to,
a vessel
jner was
as given,
tment for
MALICIOUS INJURIES TO PROPERTY. 601
firinf^a barge, Alderson, J., seemed to doubt ifabarge was
withM. the meaning ofthe statu o.~/2. y.S.dth, 4 ^ '>
661). The burning of a ship of which the i.fendant was
a p;ut owno,- IS within the statutc-i?. v. Wallace, 2 Moo
(.' ^>0. bee, 2>o8t, sect. 61.
Indwtment under sect 47 tha' J S on
on board a certain ship called " the Battler," the property
of J. N., on a certain voyage upon the high seas, then
being upon the high seas, feloniously, unlawfully and mali-
ciously did set fire to the said ship, with intent thereby to
prejudice the said J. N., the owner of the said ship, against
the torra ^The intent may be stated in different
ways, ,,/6 different counts.)
In R. y.Philp, 1 Moo. C. C. 263, there was no proof of
mahce against the owners, and the ship was insured for
inore than its value, but the court thought that the defeu.
dantmust be tn' en lo contemplate the consequences
of his act, and held that, as to this point, the conviction
was right.~See M. v. ^^ewill, 1 Moo. C. 0. 458 The
destruction of a vessel by a part-owner shows an in-
tent to prejudice the other part-owners, though he has
insured the whole ship, and promised that the other part-
owners should have the benefit theveof.^Idem The
underwritors on a policy of goods fraudulently made are
withm the statute, though no goods be put on board-
Idem. If the intont be laid to prejudice the under-
writers, then prove the policy, and that the ship sailed on
her voyage^iil. v. Gilson, M. & R, m. It would seem
however, that the general provision ofthe 46th section of
this statute renders unnecessary in any case the allegation
Proof that It was done wilfully is of itself evidence that
It was done with intent to prejudice.
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(716) 872-4503
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602
MALICIOUS INJURIES TO PROPERTY.
A sailor goes on a ship to steal rum. While tapping
the casks, a lighted match held by him set the rum on fire,
and a conflagration ensued which destroyed the vessel. —
Held, that a conviction for arson of the ship could not be
upheld. — R. V. Faulkner, 13 Cox, 550.
Held, on the trial of the master of a vessel indicted for
scuttling her (by Allen, C. J., and Fisher and Duff, J. J.),
that s. 64 of the statut<> of Canada, 32-33 V., c. 29, allow-
ing a" witness to be cross-examined as to previous state-
ments made by him in writing or reduced into writing,
would not apply to protests made by the prisoner, or to
policies of insurance issued to the witness, or to receipts
which it did not appear the witness had either written,
signed or even seen until they were shown to him in the
witness box ; but held, by Weldon, J., that it was com-
petent, on the cross-examination of the witness, to put into
his hands a policy of insurance not in evidence, and ask
him if he did not see certain words in it ; also, to read
from a paper purporting to be a protest made by the pris-
oner and ask the witness if he did. not write the protest
and if certain words were not in it. Held, also, (by Allen,
C. J., and Fisher and Duff, J. J.), that where the indict-
ment in certain counts charged the destruction of the
vessel with intent thereby to prejudice the underwri-
ters, and in others simply charged the crime without
alleging the intent, and the prisoner was found guilty
on all the counts, that even if it was necessary to show
that the prisoner had knowledge, as to which they
expressed no opinion, the court could, if necessary, alter
the verdict to a finding on the counts which did not allege
the intent.
Per Weldon, J., that it was not necessary to show the
prisoner's knowledge of the insurance, as he must be pre-
MALICIOUS INJUEIES TO PROPERTY. 603
sumed to have intended the necessary consequence of his
act, which was to prejudice the underwriters
It appeared on the trial that the prisoner, with the
greater portion of his crew including the mate, had gone
be ore a naval court and given a false account of the loss
of he vessel, also, that the prisoner had persuaded the
mate to suppress the log book and swear that it was lost.
HeU, Fishei^ J., duhitante, that the log book was pro-
perly received m evidence.
Held also, that proof of the receipt by the prisoner of
drafts for large sums of money, drawn by parties in C
from which the vessel which the prisoner was charged
with scuttling sailed, was properly received, and being
unexplained by the prisoner they were properly left to the
jury as evidence against him.
There is no positive rule of law that the testimony of
an accomphce must receive direct corroboration, and the
nature and extent of the corroboration required depend
a great deal upon the character of the crime charged.
Therefore, where the judg3 directed the jury « that it was
not necessary that T. (the accomplice) should be coiTobor-
ated as to the very act of boring the holes in the vessel •
If the other evidence, and the circumstances of the case'
satisfied them that he was telling the truth in the account
which he gave of the destruction of the vessel that would
be sufficient.
Held, a proper direction.
Held, also, that the words in a bill of lading " «reiahfc
and contents unknown" would not prevent a jury f^om
having the right to draw whatever inference of guil[ they
pleased against the prisoner, from his knowledge that the
cargo was not what the bill of lading represented it te be
-Lie Queen v. Tower, 4: P, S B. (N. B.J 168.
'■':)
604
MALICIOUS INJURIES TO PROPERTY.
PLACING GUNPOWDER NEAR A VESSEL WITH INTENT ETC
49. Every one who 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 cliattels, whether
or not any explosion takes place, and whether or not any injury la
effected, is guilty of felony, and liable to fourteen years' imprison
meat — 32-33 V., c. 22, s. 51. 24-25 V., c. 97, «. 45, Imp.
60. Every one who unlawfully and maliciously damages, other-
wise 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
liable to seven years' imprisonment — 32-33 V., c. 22, *. 52. 24-25
v., c. 97, 8. 46, Imp.
See remarks under sects. 13, 14, 46, 47, 48, ante.
> FALSE SIGNALS, ETC.
51, Everyone who unlawfully masks, alters, removes or extin-
guishes any light or signal, or unkwfully 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 the immediate
loss or destruction of any ship, vessel or boat, and for wliich no
punishment is hereinbefore provided, is guilty of felony, and liable to
imprisonment for life— 32-33 V., c. 22, s. 63. 33 F., c. 18, s. 4 part
24-26 r., c. 97, «. 47,/mp.
See sec. 183 of the Procedure Act for a verdict of
attempt in certain cases.
It is to be remarked that the first part of the section
says " unlawfully " only.
Indictment for exhibiting false signals. — The Jurors
for Out Lady the Queen upon their oath present, that
before and at the time of committing the felony hereinafter
mentioned, a certain sh-p, the property of some person
or persons to the jurors aforesaid unknown, was sailing on
a certain river called near unto and that J.
S. on well knowing the premises, whilst the said
MALICIOUS INJURIES TO PROPERTY. 605
ship was SO sailing 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 Archhold. " '
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, whiki
the said shir as so sailing near the said parish as afore-
said, feloniously, unlawfully and maliciously did
(state the ad 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 -—Archbold.
CUTTING AWAY, ETC., BUOYS.
62. Every one who. unla^vfully and maliciously, cut8 away, casts
adnft. removes, altera, defaces, sinks o, destroys, or unlawf^lW a„d
maliciously does any act with intent tc, out away cast adrift /
alter, def.ce, sink or destroy, or i„ any othfr' ^ ner ^^ l^S
and maliciously injures or conceals any ligh^houHe I,„hf ,. ^""J"
ingorother light, lantern or signal, o'r a ^ b^^u^oy t^^^^^^^
beacon, anchor pe..h or mark used or intended for the gu danced?
seamen or for the purpose of navigation, is guilty of felony a-^d
liable to seven years' im prison m en t.-a2-3a V c 22 s S q/^
c. 18, .. 4, part. 24-26 V., c. 97. s. 48, Imp. ' ^^ ^'^
Maliciously means wilfully. See R. y. Faulkner 13
Cox, ante, under sec. 48, and cases there cited ; also R v
Latimer, 16 Cox, 70. ' *
>fo intent, need be charged in the indictment. This
section includes the offence and the attempt to commit
the offence.
IndictTnent- that J. g., on ...... upon
the river called feloniously, unlawfully and mali-
ciously did cut away a certain buoy then used for the
guidance of seamen- and for the purpose of navigation
against the form «*vigciaon,
MM
l'(
I?
606 MALICIOUS INJURIES TO PROPERTY.
MAKING FAST TO BUOYS, ETC.
53. Every one who makes fast any vessel or boat to any such
buoy, beacon or sea mark, shall, on summary conviction, be liable to
a penalty not exceeding ten dollars, and in default of payment, to one
month's imprisonment. —32-33 V.,c. 22, s. 55.
64. Every one wrho unlawfully and maliciously breaks, injures,
cuts, loosens, removes or destroys, in whole or in part, any dam, pier'
slide, boom or other such works, or any chain or other faste-'
ning attached thereto, or &ny raft, crib of timber or eawlogs
or unlawfully and maliciously impedes or blocks up any chan-
nel or passage intended for the transmission of timber, is guilty of a
misdemeanor, and liable to a fine or to two years' imprisonment or to
both— 32-33 V., c. 22, s. 56; C. S. C, c. 68, *. 67.
These clauses are not in the Imperial Act.
Malice against owner is unnecessary, and the clause
applies to every person in possession of the property in-
jured, if act done with intent to injure or defraud. But in
such a case, it is not necessary to allege that the intent was
to injure or defraud any particular person. — Sections 60,
61, 'post.
Indictinent. — that A. B. on in
unlawfully and maliciously did cut a certain boom then
and there lying on the river called the said boom
being then and there the property of J. S., of agaiugt
the form
INJURIES TO POLL B00K3 ETC.
55, Every one who unlawful? . or maliciouciy destroys, injures or
obliterates, or causes to be wilfully or maliciously destroyed, injured
or obliterated, or makes or catises to be made any erasure, addition
of names or interlineation of names in or upon, or aids, consents or
assists in so destroying, injuring or obliterating, or in making any
erasure, addition of names or interlineation of names in or upon any
writ of election, o" any return to a writ of election, o: any indenture,
poll book, voters' list, certificate, affidavit or report, or any docu-
ment or paper made, prepared or drawn out according to any law
in regard to provincial, municipal or civic elections, is guilty of
MALICIOUS INJURIES TO PROPERTY. 607
B. S. B. a, c. 157. ;,. 99 «^ lio, p;t" ' ^''""•' ^^ ''' '' ''''^<^''
This clause applies only to writs or documents for nro
vincial. municipal, or civic elections. ^
INJURIES TO LAND MARKS.
hyany land surveyor to marflnv Hm t T""?' "' ^^^'^^^^ P'^^^^d
concession, raage, lot or parcel oAZ- •l'^"'*^ ""' *"S'^ ^^ *"3^
and liable toa l/e .ot exc^r^ o- i^-S do^ '"'«^— '
months' imprisonment, or to both ; dollars, or to three
2. Nothing herein shall prevent p .r,^
from taking up posts or otherrundarvt t""'?'"" ^''^ °P«^«««"
carefully replaces them as I^we e Lfo I^^ '^ ^e
i>ar<. a S. D. C, c 93. a. 4,part. ^■' ''' ^^' *• ^OT.
sea 57. Soarethewords««cfedor-yia„fed."
i„ I^' r; ^ "' '"'"' "'""'"*<"' " '" -"• «7 <« not
The misdemeanor mentioned in sec ^57 Pa„ ^ v.
fitted io .eUtion to boundari. ^U Trlot
n.™.ES NOT BEFOBE PHOVIBED FOE EXCEEWKG TWENTY
DOLLARS.
da'age'iZyTr st^H i:," o^'^"^ ^'^^ '"''"^'^^^^^ ^ "'*« -,
whatsoever efthero^ a n«bL"'r ""'■'''' "' ^^^^^^^ P^^P^'t^
, uner ot a public or a private nature, for which no
608
MALICIOUS INJURIES TO PROPERTY.
punishment is hereinbefore provided, the damage, injury or spoil
being to an amount exceeding twenty dollars, is guilty of a misrle-
meanor, and liable to five years' imprisonment. — 32-33 V., c. 22, a. 69.
24-25 v., c. 97, *. 61, Imp. \
If an attempt to commit the offence only is proved, see
sect. 183 of the Procedure Act. The English act has an
additional enactment giving a greater punishment for
oflfences committed in the night. Under this section
evidence of damage committed at several times, in tlie
aggregate, but not at any one time, exceeding twenty dollars
will not sustain an indictment. — R. v. WiUiams, 9 Cox
338. '
The injury must directly amount to twenty dollars ; con-
sequential damage cannot be taken into consideration, to
make up that amount. — R. v. Whiteman, 6 Cox, 370 •
Dears, 353. In R. v. Thoman, 12 Cox, 54, the indict-
ment was as follows That Margaret Thoman, on
the 30th of January, 1871, 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 maliciously did
commit certain damage, injury and spoil to an amount
exceeding five pounds, by unlawfully cutting and des-
troying the same against the form of the statute in such
case made and provided. At the trial, the prisoner's
counsel objected that the indictment was bad, because
the value of the articles damaged was ascribed to them
collectively and not individually. But upon a case re-
served, the indictment was held good, and Bovill, C. J.,
said : " We are all of opinion that it was not material to
allege the value of the several articles in the indictment,
but only that the amount of the damage exceeded fiv9
pounds."
MALICIOUS INJURIES TO PROPLTtTY. 609
Defendant was indicted for imia, t n
oo..„i.i„g damage upon a l^t; ^tCe .'"''"Tf
prosecutor, against this section Cf , ^'"' "' ""«
l«.en fighting with other pe^o ^ the .".t „/'; "'"'
turned „„t of a public honse, went a^o' the ^^'eta':!
pcKed up a stone, which he threw at till ™ \
missed them, passed over their hepH. ! a1 , " ''°"»
in the house. The j„r,v ftd thttltteld e'd : if""
or ,„ore of the persons he had been fl»htW w.th . T,
not intend to break ,he window ■ ff.W ^,7 •*'"* '''<'
finding the prisoner wa, not "dhv „f 1 I "'"" ""'
tWs section ; ,o support a JL^^ „" Ms tX t""
must be a wilful and intention.) ,i„- T ' '""■*
in relation to thepropert^d ma^ed ^'"p "t"'"' ^"'
C^o. 607. See, on'thif ^'^.71' ^ PZ^'lT
121 ; M. V. ibw^^•ner, 13 Cox 550 nnH o . • ^''^'
ham, 15 Coa;, 22. ^' ^^^'^^^g.
Upon an information laid beforp a mo«; ^ .
'58 nf r. 1AQ fv, • ^ magi.strate under sec
00 ot c. 168, the magistrate cannnf fi»^ •
^e offence „e„ti„„e3 in neZee „ " s cT;!:"' f
Vet, 9 Z. i\^. 403. ^ ^•'^ ^^P^rte
MALICIOUS INJURIES NOT BEPORE PROVIDED FOR
liable .0 a penalty no^xeeedl;,. utitv doir'"""/'""^"""' '^
sum, not exceeding t^venty dol IrH 1 „' '' *""* '"''' '""'•''>«'•
reasonable cornpen' atioTforl^e dan a^r'"" '" ''" ^'"^^'^^ ''^ ^^ ^
""ttted, whicl. last mentio, ei Bul J ' '"""■^, ",'' 'P*^'' "'^ '^•^">•
P--P^Per.,.epa.to:Lp.^--^-:^'^
H ^^^^^^^^^^^^^^^^^^^H
■Pil
. 'I^^^^^^^H
' 1
5-^
1 ,
■'1
610
MALICIOUS INJURIES TO PROPERTY.
of money, together with the ooet», if oniered, are not paid, either
itiinicdiatoljf after the conviction, or within such period as the justice
ahull, at the time of tlie conviction, appoint, the justice may caiiNe the
oileiMler to be impriHoned for any term not exceeding two months
"irith or without hard labor:
2. Nothing heroin contained shall extend to any cane whore the
perpon acted under a fair and reasonable cuppcpition that he had a
right to do the act complained of, or to any treapaRf), not beinj; wilful
and maliciout), conuiiitted in hunting or fishing, or in the pursuit of
game ; but every Buch trespaHs shall be punishable in the eume
iDanner as if this Act had not been passed :
3. The provisions of this section shall extend to any porson who
unlawfully and maliciously commits any injury to any tree, saplinir,
phrub or underwood, for which no punishment is hereinbefore pro-
vided.— 32-33 v., c 22, 38. 60 and 61. 24-25 V., c. 97, s. 52-63, Imp,
In the Imperial Act, the words " wilfully or maliciously "
stand in lieu of " unlawfully and maliciously"
The application of the penalty, in case the property
injured is of a public nature, has been expunged from this
clause as it stood in the act of 1869. — Sub sect. 3 was
introduced in the Imperial Act in consequence of B. v.
Dodson, 9 A. (S; E. 704, and Chanter v. Oreame, 13 Q,
B. 216.
W. was summoned before the justices under this
clause. He was in the employment of D., and by his
order, he forcibly entered a garden belonging to and in
the occupation of F., accompanied by thirteen other men,
and cut a small ditch, from forty to fifty yards in length,
through the soil. F. and his predecessors in title had
occupied the garden for thirty-six years, and during the
whole time, there had been no ditch upon the site of part
of that cut by D. For the defence D. was called, who
stated that, fifteen years before, there had been an open
ditch in the land, which received the drainage from the
highway, and that he gave directions for the ditch to
MAUCIOOS mjUHiKs TO PKOPlaiT. 611
bo cut by W. in the e«roi«, of M-hat he considered to be a
p..bhc r,ght. The jnsticea found that W. had no fa" Id
reasonable supposition tliat ho had a ri,.hf f^ . .,
»„;,lai„ed of, and aeco^i„„y erntiLT L^ tJ^C
by l,e express words of the section and proviso,^ 1„;
belief of W. that his act was legal, and that there was
evKlonce on which they might properly flnd that he
d,d no act under the fair and reasonable supporftion
miuned by the statute.- ITAi., v. F^t. I. aT« A
A conviction by justices under sect. 52, c 97 24 9,
V. (sect. 59 of our statute.) cannot be b'ro'glt' ,p by
cer.,ora„. on the ground that they had no jurisZion
.Msmuch as .he defendant had set up a bona «de elat of
nght, but the exemption is impliedly restricted l"
where the justices are reasonably satisfied of the flir ^d
rcMonable character of the claim._ie v EasJ If
Mumt, 26 I. T. 429. ■ ^ "•
OTHER MATTEBS.
60. Every punishment and penaltv bv thi. A„t ;
p»ni,Ul,lo npon indictment or nln! ''"' "" ""«' '»
equallvapplyl be e„r„rd whe hT.1 e "r''°°°''°'"°' "'""
malice eoneeived .gains, the «ner 'f ,,.f ' " ""'""'"«' f™-
•^':z ^trr::;;; t^z \:-^- --"ed. sh.„
doe. any of the acts hereinbefore " "J"" ?' '''/'•'"d «ny person.
.ftn.lc.r i. in Possession ofZp™;^^';^::,'','''''' ""'°"«" "'°
.ud, aet is don..-32.3., r.. o. 22.^1^. '^5^5^;' ."C Tl^p
teavessays: "This clause is new and a very imp!' -
taut amendment. It extends every clause of the ac7n"
612
MALICIOUS INJURIES TO PROPERTY.
already so extended (see sect. 3) to persons in possession
of the property injured, provided they intend to injure or
defraud any other person. It there ''jro brings tenunts
within the provisions of the act, whenever they injure the
demised premises, or anything growing on or annexed to
them, with intent to injure their landloixis."
By sec. 116, of the Procedure Act, in any indictment
under this act, where it ia necessary to allege an intent to
iiyure or defraud, it is sufficient to allege that the person
accused did the act with intent to injure or defraud, as
the case may be, without alleging an intent to injure or
defraud any particular person.
CHAPTER 173,
A-. ACT «'^^;S<^™ T T p,,^,^^j^^
H
AND OTHER OFFKNCES.
EH Majesty, by an,} with the adviiv a^d con«nnf nf u « .
and House of Commons of P.nl i **' "'® '^*'"»^<*
commons of Lanada, enacts as follows :—
THREATS.
1. Everyone who Honds, deli vers or uttflpfl nrJJ««.i • ,.
writing, demanding; of anv riersnn «,i,u . ^"'> »"/ iticer or
«ec.„..ty or othor valnaMe thing, is^u C felo y d 37; '*'"'*"*'
onn.entforlife.-32-33 r.c.'ai.l 4j:itr';:l'»t'n;"n"
An indictment on thia clause should always contaiu'u
count for uttenng without stating the person to whom the
letter or writing ,.s uttered.- Grrmi;e«. Cons. Acts 135
Indictment for sending a letter, demanding r.v^ney
mth menaces.-The Jurors for Our Lady the Queen
upon therr oath present, that J. S., on feloniousi;
did send to one J. N. a certain letter, directed to the said
J. JN. by the name and description of Mr J N of
demanding money from the said J. N. with menaces*.' and
without reasonable or probable cause, he the said J. S then
we 1 knowing the contents of the said letter; and which
saad letter isas follows, that is to say. (here set out the
letter verbatim) against the form And the jurors
aforesaid, upon their oath aforesaid, do further present, that
the said J. S. on the day and in the year aforesaid, feloni-
ously d,d utter a certain writing demanding money from
the said J. N. with menaces and without any reasonable
or prooable cause, he the said J. S. then well knowina the
contents of the said writing and which said writin. is as
II
(.■ f
rp,il
T 1
614
THREATS, ETC.
follows, that is to say (here set out the writing verbatim )
against the form —Archhold, 422.
Where the letter confained a request only, but inti-
mated, that, if it were not complied with, the writer would'
publish a certain libel then in his possession, accusina the
prosecutor of murder, this was holden to amount "to a
demand.— ii. v. RoUnson, 2 Leach, 749. The demand
must be with menaces, and without any reasonable or pro-
bable cause, and it will be for the jury to consider whether
the letter does expressly or impliedly contain a demand of
this description. The words " without any reasonable or
probable cause" apply to the demand of money, and not to
the accusation threatened by the defendant io be made against
the prosecutor; and it is, therefore, immaterial in point of
law, whether the accusation be true or uot.—R. v. Eanil
ton, la ik K. 212; R. v. Gardner, 1 G. S P. 479 ^
letter written to a banker, stating that it was intended b -
some one to burn his books and cause his bank to s^op
and that if 250 pounds were put in a ceicain place, the'
writer of the lette. vvould prevent the mischief, but if the
money were not put there, it would happen, was held to be
a letter demanding money with menaces.— ie. v. Smith 1 •
Den. 510. The judges seemed to thinK thai thi? decision
did not interfere with R. v. Fickford, 4: C. & P. 227
Nevertheless, it is said, in Archbold, 424, that it is difficult
to admit that. In R. v. Ri<:kford, the injury threatened
was to be done by a third person. Sect. 6 would now
covor that case; oea post. It is immaterial whetho the'
menaces or threats hereinbefore mentioned be of violence,
injury or accusation to be caused or made by tht offender'
or hy any other perscn. See R. v. Trenchant, 9 L V
333.
32-33 v., c. 21, 8. 43, makes it a felony to send " any
verbatim,)
, but inti-
iter would
cusing the
ount to a
e demand
>le or pro-
!r whether
lemand of
5onable or
and not to
t^e against
n point of
^. ffamil
.479. A
ended hj
to s<-op,
)lace, the
)ut if the
lield to be
Smith, 1
decision
P. 227.
i difficult
reateiied
Id now,
ithe)' the
*'iolence,
)ffender,
9 L. F.
THREATS, ETC.
615
letter demanding of any person with menaces, and without
any reasonable or probable cause, any money, etc."
Held, that the words "without reasonable or probable
cause " apply to the money demanded, and not to the accu-
sation threatened to be made.—iJ. v. Mason, 24 U. C. G.
P. 58.
2. Every one who, with menaces or by force, deman Is any pro-
perty, cliHttel, , loney, valuable security or other valuable thin^ of
any person, w.th mtent to steal the same, is guilty of felony, andlia-
ble to two years' jraprisonment. 32-33 F., c. 21,,. 44. 24-25 V c 9G
s. 45, Imp. ■' ■ '
Indictments ......... feloniously with menaces did
demand of J. N. the money of him the said J. N. with
intent the said money from the said J. N. feloniously to
steal, take and carry away, against Archbold 421
The prosecutor must prove a demand by the defen.iaut
of the money or other thing stated in the indictment - by
menaces or force " with intent to steal it. It is not neces-
sary to prove an express demand in words ; the statute
says "whosoever with menaces op by force demands," and
menaces are of two kinds, by words or by gestures ; so that
if tne words or gestures of the defendanc at the time w^re
plainly indicative of what he required, and tantamount in
fact to a demand, it should seem to be sufficient proof of
the allegation of demand in the indictment.— i2 y Jach
son, 1 Leach, 269.-If a person, with menaces, demand
mon3y of another, who does not give it him, because he
has It not with him, this is a felony within the statute ; but
If the party demanding the money knows that it is not
then in the prosecutor's possession, and only intends to
obtain an order for the payment of it, it is otherwise— ij
V. Edwards, 6 C. <fc P. 515.
The intent to steal must of course be presumed from
is
616
THREATS, ETC.
circumstances ; it is a question e. tirely for the iurv t
determine, and which they ^^ ill, in general, have to presume
from the circumstances attending the demand, the expres
sion or gestures of the prisoner, when he made it andtb«
In order to bring a case within this section, the demand
If successful, must amount to stealing; and to constitute a
menace within this section, it must be of such a nature
as to unsettle the mind of the person upon whom it ope-
rates, and to take away from his acts that element of volun
tary action which alone constitutes consent ; it must there"
fore, be left to the ji-ry to say whether the conduct of t?e
prisoner is such as to have had that effect on the prosecu
tor; and in this case, the judge having directed the iurv
as a matter of law, that the conduct of the prisoner con
stituted a menace withing the statute, the conviction must
be quashed.~i2. v. Walton, L. S C. 288.
In n. v. RobeHson, L. cfc a 483; 10 Cox, 9, it was
holden that a threat by a policeman to imprison a man
upon a fictitious charge is a menace within this section and
though the money had in fact been obtained and the pris
oner could, in consequence, also have been indicted for
stealing the money, yet the conviction, under the present
section, was right. On the ruling in R. v. Walton suprd
Greaves remarks : "This decision requires reconsideration'
as It obviously proceeds upon the fallacy of supposina it
necessary that the menaces should be sucb thatif prope^rty
were obtained by them, the offence would be larceny
Now the words of the clause warrant no such construe^
tion."
The words are" Whosoever shall with menaces or by force
demand any property with intent to steal the same." (With
menaces not b^/ menaces;) any menaces or any force there-
THKEATS, ETC,
617
fore clearly ^t,sfy the terms of the clause, provided there
be an mtent to steal. It migH j,,, ^ ^ ^ ^ ^J'^^
on nn mdictment for an assault with intent to rob or t
wounding w,th intent to murfer, it was necessary to prove
5 ch an assault mthe one oase, or such wounig in the
ot e, as would be sufficient to effectuate the intent^and
yet, has never been doubted that any assault. hoCvTr
shght or any wound however trivial, was sufflci nt, ZZ
ded the .ntent were proved. In truth, the criminlL i„
these cases depends on the intent. The effect of this ded!
sjon .s to render the clause almost inoperative, for whe4
the menaces have not obtained the money, it i plain the
to obtam It The whole ofTence consists in the acts and
intent he pnsoner ; and it is quite beside that toconsi
writinar, accus tuor thrpAtPninT t^ mcreoi, any letter or
other ^p;r.on of°a„yir;;irrr^ -y
onment for not hss than eeven year/ or nT . ' .""P"""
intent to commit any rape or of I f ^^ *''*"'' ^'^^
commit any rape, or of any^ifalu ^ T "' ''"^^"^^^ "^
witha viewor ^^tent, in anyo tiThlp 'T '! ''''''''''''' ^^«"«'^'
Of sucl. letteror writing" anr/rl ty d^tfer "'"';' '^ "^"^"^
rity or other valuable th^ing frSm^^y ' -" ' -^' ' ''''"
liable loi.npri6onment for liftr ^ ^ ' " ^"'''^ ^' '^^'^"y* ^^^
bett'a:;:::;^a:s:T:rrric^''^^T^ --^--'- -^^^
every attempt or endea or to commit the /Ji' • '" '"' "''"^' ^"^
citation persuaHion. prom ne or tT.r at oPe'^ "''""V"^ '"''^ «''"■
whereby to move or hduceMh f ^' "*^^^ ^° ""^ ?«"««
crime, shall be deem 3 to L - ^ '''"'"""' '''' ^""'' *''' '^'^
of this Act: '"'"'"'""^'^ ^^^^ infamous cnme witl.in the meaning
3. Every species of parting with any such letter to the end that io
£**<
618
THREATS, ETC.
may come, or whereby it comes into the hands of the person for whom
it is intended, shall be deemed a sending of such letter. 32-33 V
c. 21, 8. 45. 24-25 F., c. 96, ». 46, Imp. "*
Sub. sect. 3 is not in the Imperial Act.
Indictment. — The Jurors for Our Lady the Queen
upon their oath present, that J. S., on feloniously
did send to one J. N., a certain letter, directed to the said
J. N., by the name and description of Mr. J. N., throaten-
ing to accuse him the said J. K, of having attempted and
endeavored to commit the abominable crime of buggery
with him the said J. S., with a view and intent thereby
then to extort and gain money from the said J. N., he the
said J. S., then well knowing the contents of said letter,
and which said letter is as follows, to wit (here set out the
letter verbatim) against the form A nd the j urors
^foresaw, upon their oath aforesaid, do further present, that
the said J. S., on the day and in the year aforesaid felo-
niously did utter a certain writing threatening to accuse
him the said J. N., of having attempted and endeavored
to commit the abominable crime of buggery with him the
said J. S., with a view and intent thereby then to extort
and gain money from the said J- N., he the said J. S., then
well knowing the contents of the said letter, and which
said letter is as follows, to wit (here set ovi the letter ver-
batim) against the form — Archbold.
An indictment for sending a letter threatening to accuse
a man of an infamous crime, need not specify such crime,
for the specific crime the defendant threatened to charge
might intentionally by him be left in doubt.— 7?. v.
Tiuiker, 1 Moo. C. C. 134. The threat may be to accuse
another person than the one to whom the letter was sent.
— Archbold, loc. cit. It is imiriaterial whether the prose-
cutor be innocent or guilty of the offence threatened to he
THSEATS, ETC.
619
imputed to him.-iJ. v. Oardn^, lOiP ATa. i,
Mkliards, U Cox, 43. ' i-. « .f, 479 ; R. y.
Where it was doubtful from the letter wh,f .
intended, parol evidenee was a<I„,i teX^' ff H
heproaeoutor proved that having asked theT-i^oUwrat
liberties with his etl ^ h^ "^d t " '"^.'-'"
The court wil], after the hill ,'« ^ j
cation of the prisoner, orfet th 1 tfr".:; ;T """ '"P""
an officer, in order thatth. ^ ^ ^ *P™""' "**
inapect it-ie. v. B^ to fTm '"''"^' """^
the sending „f one on./was ITX^^r''""- "'
4. Every one who accuses, or threatens m «
Frson to whom euch accusation <^ threat il J^T"' '''^'' '^'
person, of any of the infamous or n*i ^^ **'" *"y other
mentioned, with the view oHntenrin^'??'' '^''^^ hereinbefore .
to extort or gain from such p^ ^'r/ccle; T.^ ''''' ^^^^^«'*'^'
accusecJ, or from any other ^rsom *"' threatened to be
valuable security or other 1«»Cb7e' Tr^ ^'^^"''^' «»'*«e], money,
liable to imprisonment for l^e I3 33'r ^' '1^'^'^ ^^ '^'^-y' and
96, s. 47, /mp. , '*^"^'^ ^•' «' 21, *• 46. 24-26 V., e.
By sect. 6, post, it is enacted that "if .h.n k •
sr lilt—; - --. ---rr
».evtheo.xr^-~r>---'
The words "crimes lastly before menHr,n»^ >■ •
mean alUhose mentioned ij; sec 3.-";/" ""'• *'
K/r'iri-- th:;;f;Tt - ^"- - -
-avored to commit t^ab^iltr'^ri:;
620
THREATS, ETC,
With the sai'i J. S., with a view and intent thereby then
to extort and gain money from the said J. N., against the
form —Archhold.
See the remarks under sections 1, 2, 3, ante. It must
be a threat to accuse, or an accusation ; if J. N, ^^
indicted or in custody of an offence, and the defendant
threatened to procure witnesses to prove the charge, this
will not be a threat to accuse within the meaning "of the
statute.— i2. v. Oill, Archhold, 425. But it need not be
a threa*; to accuse before a judicial tribunal ; a threat to
chargo before any third person is suflacient.— ij. v. RoUti,
son, 2M,<S; Boh. 14. It is immaterial whether the pro-
secutor be innocent or guilty of the offence charged, and
therefore, although the prosecutor may be cross-examined
as to his guilt of the offence imputed to him, with a view
to shalce his credit, yet no evidence will be allowed to be
given, even in cross-examination by another witness to
prove that the-prosecutor was guilty of such offence.~iJ
v. Gardner, I C. & P. 479 ; R. v. Cracknell, 10 Cox,
408. Whether the crime of which the prosecutor was
accused by the prisoner was actually committed is not
material in this, that the prisoner is equally guiltv if he
intended by such accusation to extort money ; but it is
material in considering the question, whether, under the
circumstances of the case, the intention of the prisoner
was to extort money or merely to compound a felony.—
R. V. Richards, 11 Cox, 43. In Archhold, 425, this last
decision see^s not to be approved of. —A person threaten-
ing A's father that he would accuse A., of having com-
mitted 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
TDKEATS, WO. gjl
thi, section -ie. V, Redraan, 10 Cox, 159. On the trial
an ■nd.ctn.ent for threatening to aoc„.,e a person o/^
abominable crime with infn«f <■ '^ ** peison oi an
intimidating tirpartl bv h ^^ "^ "'""^y' »d by
the money.tte Ju^ Id Jt 1 ^ ,.-'° '""' """"""'^
^> ^jui^ neea not confine themselvPQ fn ♦!,«
consideration of the expressions used beZ tl
™^ when he was taken into cnstody.-ij. v. Vl. ^c.
make, accept, indorse, alter or dentrnv *l,o u i '^ ^ execute,
valuable security, or ti ^^^iZZ^^t" " '"-^ P*""^ °' «"y
of any other persou or of any confr„v fi^f "''"'' "'' ^'^^ "«"'«
eeal of any body corporate, corpanTo^r^'r '""'"'"^''^'"^ '' ^^«
On this clause. Greaves says : "This clause is new It
wU meet all snch cases as M.y.PUpoe, 2 UaZ J^
and B. V. Edmrds, 6 O. d P 521 „^ ' '^*'
violence t^ the P»-norhy threlSL'n Ir^le^f
The defendants, husband and wife werp inrU.f ^ ^
tMs clause, for having b, threats 0/^^^.^^:;^
n uced the prosecutor to write and affix his name 2
ollowing document : " London, July I9th, 1875 1 hteby
agree to pay you £100 on the 27th in.t f. ^
action against me." '*' ^° ^'"^^^^ ^^7
'Si^
.1
622
THREATS, ETC.
Held, that this document was not a promissory note but
was an agi-eement to pay money for a valid consideration
which could be sued upon and was therefore a valuable
security. To constitute a valuable security within the
meaning of the statute an instrument need not be hqoq.
tiable. A wife who takes an independent part in The
commission of a crime when her husband is not present
is not protected by her coverture.— i?. v. John, 13 Cox
aoo. .
See that case as to form of indictment.
This clause, by the consolidation of the statutes, does net
now form part of the Larceny Ad, under which the words
*^ valuable security" are defined.
6. It shall be immaterial whether the menaces or threats herein-
before, mentioned are of violence, injury or accusation, to t.e caused,
or made by the offender or by any other person 32-33 V. c 21*
*.48. 24-26 v., c. 96, *. 49, Imp. ' " '
This clause is new, says Greaves; it is intended to
meet cases where a letter may be sent by one persoa
a)id may contain menaces of injury by another, and to
remove the doubts occasioned by M. v. Pickford, 4 C. <&
P. 227. In E. v. Smith, 1 Den. 510, the threat by a
person writing a letter of an injury to be made by a third
person w„3 held within the statute, before this clause. Of
course, now, this is clear law, whatever doubts may have
existed heretofore.
7. Every one who maliciously sends, delivers or utters, or directly
or indirectely causes to be received, knowing the contents thereof,
any letter or writing threatening to kill or murder any rerson, is
guilty of felony, and liable to ten years' imprisonment.— 32-33 V. e
20, 3. 15. 24-25 v., c. 100, s. 16, Imp.
Indictment. — feloniously and maliciously did
send (send, deliver, utter, or directly or indirectly cause
THREATS, ETC. . ^^^
to be received) to one J TSr o * • ,
»*.,; directed to ^he's^d jTI^' ^'^"^ ^
description of Mr J N fhr... • /'.^ " ''™<' "nd
«.id J N., he the aM 'X"' ^ "," ""'^ ■""*' "«'
ing the contents ithrV'wSr'^T^ '''™.«'"''»o-
foUows. that is to say '''"''■••. ^^'oh said letter is a,
. , ., . ""J^ -Against the form
And the jurors aforesaid I,, ,^^ "J^ •••
In R. V. Hunter, 2 Leo oh R'i^ +1,
indictment for send/ng f it.^ i.t r^tr ^^ «"
be set out in order thR^ fho n . ' ^ ^^*^*" °^"st
of the indictment ;t^^^^^^^^ "^'^ ^^'^^ ^-^ the face
letter within the mean ng of ;e3tTtn: "' \^^-^*-ng
dictment is founded. " ^^^ statute on which the in-
The same ruling had been held in i? v TJn. v o r.
are talcen from the 9 Geo. 4 c 65 ?T / ™^^'^'
here in order to prevent an/diffifn,,; whit; mTr""'
«s to a case falling within the wordJJ j!« *'" ''™°
s. 1, were advisedly omitted, in order thltnf ' "• ®*>
delivering, uttering, or ca, sinrt! t ^'""«' """^'"a
".eluded. If, theref;;o, ^Z^! T.JlTT T' ^
writing without any address bv» ^ * '"""' «
drop it in the gardfn oflT ^ '^'''"" *'"' ''"*'=«™ to
^ved,or..,crret^:;:,:,":^ir ^'^^^^
t^rc^rx^orrH""^^^^^^^^^^
'■•SS^'
3«5
n
:r3
624
THREATS, ETC.
any person whatsoever, and it is wholly immaterial whe-
ther it be sent, etc., to the person threatened or to any other
person. The cases, therefore, of R v. Paddle, M. S H, 4^4 •
B, V. Burridge, 2 M. d; Mob. 296 ; R. v. Jones, 2 C. dbK.
398 ; 1 Den. 218 ; and B. v. Orimwade, 1 Den. 30, are
not to be considered as authorities on this clausje, so far as
they decide that the letter must be sent, etc., to the party
threatened. In every indictment on this and the similar
clauses in the other acts, a count should be inserted alle.rinjr
that the defendant uttered the writing without statina°my
person to whom it was uttered. "
Where the threat charged is to kill or murder, it is for
the jury to say whether the letter amounts to a threat
to kill or murder.— iJ. v. Oirdwood, 1 Leach, 142- M v
Tyler, 1 Moo. C. C 428. '
The bare delivery of the letter, though sealed, is evidence
of a knowledge of its contents by the prisoner, in certain
cases. — E. v. Oirdwood, 1 Leach, 142.
And in the same case, it was held that the offender may
be tried in the county where the prosecutor received the
letter, though he may also be tried in the county where
the sending took place.
In R. V. Boucher, 4 G. & P. 562, the following letter
was held to contain a threat to murder : " You are a
rogue, thief and vagabond, and if you hs.d your deserts,
you should nut live the week out ; I shall be with yoj
shortly, and then you shall nap it, my banker. Have a care
old chap, or you shall disgorge some of your illgotten
gains, watches and cash, that you have robbed the widows
and fatherless of. Don't make light of this, or I'll make
light of you and yours. Signed, Cutthroat."
Where an indictment contained three counts, each chara.
ing the sending of a different threatening letter, Byles,
THREATS, EXa
626
ing the letter on which th't: f^"^ "^ *" ""'■P'""-
.d„nssiUa.-A , ^:li;l': ^^'.^^J would ha
8. Everyone who sends, deHvera or ,.m-
causes to be received, knowinr L c2r; 'V^'"'''''^«'-''"'''>ectl3r
wnt.ng Uireatening to burn or destrr Z'*"'"*^^' ""^ ^-"er or
building, or any rick or stack o'Tlf/"'' ''""''' ^-^^^ «•• other
t«r.lproduce,oranygrainj.a;l? ;;7,,';:,;'--^
.n or under any building, or any shin or T'""""'"''' P'-oJ"ce.
wound, ^o..«„ or i^ur^y c«ttle,t'g: ^7;; ," ''^ ''"' "-'"'
^^^yeara unpnaonmeut. -32-33 ^-.^ 22?;l°'24trC:;'9t''6o'
^ The words .^poisonon:,^.'. are not ia the C2
A threat to burn stanf?in« „«, •
-A V. mi. 5 cofast « ™"' " ""' "'""» *« Statute.
It was held that a Iflffpr fT,«
which .as not a thjt ^TZ^TlrT^''"' "'
conspiracy to raise th^ ratrofTage! "oVoT^""'*''/"' «oni6ination or
or conspiracy respecting any trad^ buin"^ ""'*""""' *''^'"»''»«'ion
respecting any person concerned tenXvT, T '"'*»"^«^^'"'-e. or
assaults any person, or in pursuance ofl 'T"' ""'"^fuljy
'"'T'^^'^^'^^'^'^ny violence or thrZ of Cn7 "T^ '"'"'^'^'^tion I
a ne. to hinder kimfrom ^orUngZ(Za7"" " ^^y P^^on, ^m
*"**«^** or manufacture, is guilty of a Zt"^ '^''^ "' ^"^'^ ^-«^^,
whici. is repealed Z'L^^VTs^C:' '^ '^^' ^^ «• ^2, /!:;;:
The words in Ualica are not in thp Fn„T u
cover any violence or threat o vioLnee wlh"' • ^'^^
hinder any person from workinl or h ^ ""''"^ ^«
QQ ouia-
i
a
lift'
G26
THREATS, ETO.
1
bination or conspiracy respecting euch trade, business or
manufacture.
Indictment for an amxultin pursuance of a conspiracy
to raise ivages.—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, confe-
derate, and agree together to raise the rate of wages then
usually paid to worl<men and laborers 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 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 raise the rate of wages of workmen and laborers in
the art, mystery and business of cotton-spinners;" also a
count for a common assault.) — Archbold.
For a number of workmen to combine to go in a body
to a master and say that they will leave the works, if be
does not discharge two fellow workmen in his employ, is
an unlawful combination by threats to force the prosecutor
to limit the description of his workmen.— If aisfey v. Aiiley,
Z E, & E. 516. And a combination to endeavor to force
workmen to depart from their work by such a threat as
that they would be considered as blR"k^ and that other
workmen would strike against them nil over London, i-'
unlawful.—/'^ re Perham, 5 E. <& :''. '5 '. ^V 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 belonging to a particular
THREATS, ETC,
627
i8ino88 or
cluh and have his name «ont round all over the countrv
O'Neil V. Longman, 4 B d; S M7f{ a • ,.^"""^'>'-~
commitment allying M,eolfcncr\o be a '"'""' ''
^ J " ** uiitnce to be a conspiracv to fnrPA
workmen to depart from their work bv threats n!^ !
set out the threats.- In re Perham. Ira "''
See B. V. Mowlands, 2 Ben. SGi.-AUo, Itoscoe, 390
10. Every one who beats or uses any violen^P «. ♦!
to any pernon. with intent to deter or hLjer hin f ?"' "' "■"'""°''
or o,.erwi.e .li«po.i„g of any wheat ooul;: "'S '""'' '^'"'"«
or potatoes or other pro<l«ce or goo<h i„ 11 l "' '"'*'' '"""
or heat, or uaeH any such violence or til reat'' 7 "' " °'"^ "'"^•'
clmr^e or care of any wheat or ot r ' ain 7 '""'"" '""""^ "'«
FtutoeH,whii8tonthe way toorfromlnv^ ' "■"' '"'•''' '"«" ^'
place, with intent to stopL^i::y::f:;^;"::::;v:,y" -•-'-
murv conv,ct.on before two justices of the peace bol; 1 ? ' '"' """•
n.e..t. with hard labor, for any term nnt Z r . ^'' '" ""P>-i«f>n-
r.,c.2o...4o. 24-2W. c^oo;;?;;:;^''"«^'''•«^"-''- ''-'^
"11. Every person who unlawftiHy „„d u„ ^^
™l.»ce, l,i„aer. o, p,..ve„., o, .U.,,^,"' 'JZZ'T "
^iimii, stevedore, ship caruenter .l^i„ T.i P"""" ""?
,»,„l„.ve,l .„ work ., or'^on d ; " Sui t" ", °"'" ""->"
.... connect „i.„ .,,» ,«d|„g o/uTj Z/uZ^'Vl,':,''";"-'
at or Pxercismg any lawful trade, buHne^s onluZZ "-orking
for which he is so employed ; 'or heZ\rt:!:::Zr^ '" "
make, any threat of violence against anJ sLhn "7 '"' '"'"'*
hin,.er or prevent him from working at^ x eS^'^^^ '"^^^ '«
account of his having worked at or exercised tl'sTme.::;"'' " ""
z:;^::::; ^:;^ r i:rir r r v^ ^ia^"";:^.- ::
a« a...e..ded by .0-51 V., . 4;!^ ^25";; riotr4? z:;^"'^^-"--
12. Every one who, wrongfully and withonf lo. <• 1
with a view to compel any other person LaMatfron/ '"'^°^''^'
which he has a lawful ri..ht to do or tn 1 u ^O'^g anything
has a lawful right to abstl^n. "^'^'"^ ''"•" "'"'^h he
(a.) Uses violence to such other person, or hie wife or ohii i
injures his property, ' **'^ children, or
(b.) Intimidates such other nprann ^, w •/.
.hr..U or „.i„, ,i„,e„ee tL^Z^Z'y'lftj :^'^'""- ''
his property, »"/ 01 mem, or of lujurmg
i9ii{f
I?
-"I
"i I
m
1
1
i
nn
QH
HI
III
m
■
i
^1
!p
1
628
^ THREATS, ETC.
(«.) Persistently follows such other person about from place to
place,
{d.) Hides any tools, clpthes or other property owned or used by
such other person, or deprives him or hinders him in tlie use thereof
( '.) Follows such other person, with one or more other persons, in
a djsoiiierly manner, in or through any street or road, or,
(_/.) Besets or watches the house or other place where such other
person resides or works, or carries on business or happens to be.
Shall, on summary conviction before two justices of the peace, or
on indictment, be liflible to a fine not exceeding one hundred dollars
OiT to imprisonment for a term not exceeding three months.
2. Attending at or near or approaching to such house or other
place as aforesaid, in order merely to obtain or communicate informa-
tion shall not be deemed a watching or besetting within the meaning
of this section ;
3. Any person accused of any such offence may, on appearing
before the justices, declare tiiat he objects to being tried for such
offence by such justices ; and thereupon such justices shall not proceed
witli such trial, but may deal with the case in all respects as if the
accused was charged with an indictable offence and not with an
oflPence punishable on summary conviction, and the accused may be
prosecuted on indictment accordingly ;
4. It shall be sufficient to describe any such offence in the words
of this section ; and any exception, proviso, excuse or qualification,
whether it does or does not accompany the description of the offence,
may be proved by the defendant, but need not be specified i;i tlie
information or complaint, and if so specified and negatived, no proof
in relation to the matter so specified and negatived shall be required
on the part of the informant or prosecutor ;
6, No person who is a master, or the father, son or brother of a
master in the particular manufacture, trade or business, in or in
connection with which any otfence under this section is charged to
have been committed, shall act as a magistrate or justice, in any case
of complaint or information under this section, or as a member of any
court for hearing any appeal in any such case. — 35 F., c.31, s. 2, part,
ands.A. 39 F., c 37, «s. 2 ancZ 3. 38-39 F., c. 86, a. 9, j:)ar<, /m;;.
13. In this section the expression " trade combination " means any
combination between masters or workmen or other ptrsons, for regu-
^*#^ii^^iij
THREATS, ETC.
629
latmg or altering the relafona between any persons being masters or
workmen, or the conduct of any master or workman, in or in respect
of h.s bu8,nesB or employment, or contract of employment or servfce
and the expression " act" includes a default, breach or omission ;
2. No prosecution shall be maintainable against any person'for
conspiracy to do any act, or to cause any act to be done for the
purposes of a trade combination, unless such act is an offence
punishable by statute.— 39 F., c. 37, s. 4.
14. Every person who before or at the time of the public sale of
any Indian lands, or public lands of Canada, or of any Province of
Canada, by intimidation,, combination or unfair management, hinders
or prevents, or attempts to hinder or prevent, any person f.-om bidding
upon or purchasing any lands so offered for sale, is guiltv of f
misdemeanor, and liable to a fine not exceeding four hundred dollars
4^ F., 128^765.""^"'''"™'"'' "' *° ^'^~^^ ^- ^^^"•^' '' 2' *• 33.
CRIMINAL BREACHES OF CONTRACT.
15. Every one who, —
(a.) Wilfully and maliciously breaks any contract made by him
knowing or having reasonable cause to believe that the probabTe
ZTt7lf. r '"? """' ^''^"^ '' '"^ combinadon with
others, will be to endanger human life, or to cause serious bodily
injury, or to expose valuable property, whether real or personal to
destruction or berious injury, ^ '
(6.) Being under any contract made by him with any municipal
corporafon or authority, or with any company bound, agreein^o
aB.ummg to supply any city or any other place, or any part thereof
with gas or water, wilfully and malicionsly breaks ^uch cont ac '
knowing or having reasonable cause to believe that the probable'
consequences of his so doing, either alone or in combinatL with
oners, wil be to deprive the inhabitants of that city or plac, o
part thereof, wholly or to a great extent, of their supply o? gas or
(c.) Being under any contract made by him with a ailway com-
pan:-, bound, agreeing or assuming to carry Her Majesty's mails or
IrofHrr't "•'"'■''*' ""'"' «^'-^^>^^^' or'anyone'on
whi h RpfM T '' '".r""'"'"" "^'^'^ " Government railway on
which Her Majesty's mails, or passengers or freight are carried
wiltully and maliciously breaks such contract, knowing or Ivhig
i
ik:
in
5 l!
630
THREATS, ETC.
reason to believe that the probableconsequencesof hissodoing^e.ther
alone or in combination with others, will be to delay or prevent the
running of any locomotive engine, or tender, or freight or passeuffer
train or car, on the railway, ^
Shall, on summary conviction before two justices of the peace or
on indictment, be liable to a penalty not exceeding one liundred
dollars*, or to imprisonment for a term not exceeding tiiree months
with or without hard labor.— 40 F., c. 35, *. 2. 38-39 F o «fi ,o 'a
and b, Imp. '' ' ""'' ^*- *
16. Every municipal corporation or authority or company which
being bound, agreeing or assuming to supply any citv or any other
place, or any part thereof, witli gas or water, will ully and maiiciouslv
breaks any contract made by such municipal corporation, authoritv
or company, knowing or having reason to believe that the probable
consequences of its so doing will be to deprive the inhabitants of that
city or place or part thereof, wholly, or to a great extent, of their
supply of gas or water, is liable to a penalty not exceedin-^ one
hundred .Jollars.— 40 F., c. 35, s. 3, part,
17. t>ery railway company which, being bound, agreein<^ or
assuming to carry Her Majesty's mails, or to carry passenger! or
freight, wilfully and maliciously breaks any contract made by such
railway company, knowing or having reason to believe, that the
probable consequences of its so doing will be to delay or prevent the
running of any locomotive engine or tender, or freight or passenger
train or oar, on the railway, is liable to a penalty not exceeding one
hundred dollars.— 40]'., c. 35, s. 3 part.
18. Every punishment under the three sections next preceding
imposed on any person maliciously committing any offence, shall
equally apply and be enforced, whether the offence is committed from
malice conceived against the person, corporation, authority or
fiompuny with which the contract is made or otherwise.— 40 F. c 35
s. 4.
19. Every such municipal corporation, authority or company,
ehall cause to be posted up at the gas works, or water works, or
railway stations, as the ca.se may be, belonging to such corporation,
authority or company, a printed copy of tliis section and the four
sections next preceding, in some conspicuous place, where the same
may be conveniently read by the public ; and as often as such copy
becomes d^-faced, obliterated or destroyed, shall cause it to be renewed
with all reasonable despatch ;
^^^ifi^^,|,j,
THREATS, ETC.
631
2 Eveiy such municipal corporation, authority or company which
makes default in complymg with the provisions of this section in
relation to such copy as aforesaid, shall be liable to a penalty not
exceed.ng twenty dollars for every day during which such default
continues ; and every person unlawfully injuring, defacing or covering
up any such copy so posted up, shall be liable, on summary convic-
tion, to a penalty not exceeding ten dollars.— 40 V., c. 35 *. 7 S8-39
V; c. 86, s. 4, Imp. » • . . »
FEAUDS WITH RESPECT TO CONTRACTS AND BUSINESS WITH
THE GOVERNMENT.
20. Every one who makes any offer, proposal, gift. loan, promise.
agreement, compensation or consideration, directly or indirectly ti
any officer or person in the" employment of the Government' of
Canada, or of any Province of Canada, with intent to secure the
influence of such officer or person to promote either the obtaining or
the execution of any contract with such government, or the payment
of the consideration moneys therefor, and
Every officer or person in the employment of such government,
who accepts, or agrees to accept, any sue)- oflfer, proposal, gift, loan
promise, agreement, compensation or consideration, '
Is guilty of a misdemeanor and liable to a fine not exceeding one
thousand dollars and not less than one hundred dollars, and to impris-
onment for a term not exceeding one year and not lees than one
month, and in default of payment of such fine, to imprisonment for a
further term not exceeding six months. — 46 V., c. 32 s. I.
f ; l'7.^ """^ ''^°' '° "" '^'' ^^ *'"'^"''« *^^'"g «*"Jed for by or
on behalf of the Government of Canada, or of any Province of Canada.
for any contract, directly or indirectly, by himself or by the a-encv
of any other person on his behalf, with intent to obtain such con'^tract,
either for himself or for any other person, proposes or makes any gift
loan, offer, promise or agreement, or offers or gives any consideration
or compensation whatsoever, to any person tendering for such contract
or to any officer or person in the employment of such government'
And '
Every person so tendering and every officer or person in the employ-
ment of the said government who accepts or agrees to accept any such
g. t, oan, offer, promise, agreement, consideration or compensation
>1
632
THREATS, ETC.
I8 gailty of a misdemeanor, and liable to a fine not exceodinr, «
thousand dollars and not less than one hundred dollars^ ami ?
imprisonment for a term not exceeding one year and not less 'than .„
month, and, in default of payment of such fine, to imprisonment for !
further term not exceeding six months.— 46 F., c. 32, «. 2.
22. Every one who, being a public officer or paid employee of ih.
Government of Canada, or of any Province of Canada. receLes
d.rectly or md.rectly, any promise, offer, gift, loan, compensation or'
cons.derat.on whatsoever, either in money or otherwise, fron. anv
person whomsoever, for fraudulently assisting or favoring 21
ind.v.dual .n the transaction of any business whatsoever connects
w.th such government, or for doing so contrary to the duties of 7
specal position as an officer or employee of the government, is .uihv
of a m.8demeanor. and liable to a fine not exceeding two thouZH
dollars, and shall be incapable, for the term of five yearlo hoU
any public office ; and every one who makes such offer shill be liablf
to the same penalty . —46 T., c. 32, s. 3. ^'®
23. Every person convicted of any offence under the provisions of
the three sect.cns next preceding shall be incapable of contract „ J
w.th or hoW.ng any contract under any of the said governmenL -46
24. No prosecution under the provisions of the four sections npvf
preceding shall be commenced except within two years from Z
comm.ssion of the offence.-46 F., c. 32, s. 6.
WILFUL VIOLATION OF STATUTES.
25 Every wilful violation of any Act of the Parliament of Canada
or of the Legislature of any Province of Canada, which is not mai'
L^coShgly?"" """"' ''"" ""' ™'«demeanor, and punishabt
2. Whenever any wilful violation of any Act is made an offence of
any particular kind or name, the person guilty of such violation shall
on conviction thereof, be punishable in the manner :n which such'
Tz K, inTsi r''^""''''-'' """ " '' " '' ^«^«^-^^^ 20 r.i
See R. V. Walher, 13 Cox, 94.
CONSPIRACIES— FRAUDS.
26. Every one who is convicted of fraud, or of cheating, or of
conspiracy, shall, in any case in which no special punishment is
m.
THREATS, ETC.
633
ay M , Act.) also pmvidee for the punishment of cheats
f»uds and oonspTa^jes not otherwise specially provided for
, ^%™'y ",'"=«'« o'frau* punishable at common
hw arc the ftauddent obtaining of the property of another
by auy dcoe.tfu and illegal practice, or 4en. IkJ7^Z
or may affect the public, ^ ^ch/^^e a. are leiZ
against the publw justice of th) realm "
It is not every species of fraud or dishonesty in transac-
tions between .ndmdaals which is the subject matter of a
cnmmal charge at common law 2 East P 0. 816
JZtl, ''V'T''^'!" °f """"^^ P^ecition. must be
of that tar,d which m xta nature is calculated to defraud
numbers as false weights or measures, false tokens, or
where there IS a conspiracy; per Lord Mansfield.-i v
Wlieatly. 2 Burr. 1125.
So cheats, by means of a bare lie, or false affirmation in
a pnvate tn.nsact.on as if a man selling a sack of corn
falsely affira.s .t to be a bushel, where it is greatly defi!
cent, has been holden not to be indictable.-ie v Pink-
my,2East,P.C.S18. a. y. f%nK-
So, in R V. CUnnM. 2 Bast. P. C. 818, it was held
that a mUler charged with illegally taking and keeping
com could not be criminally prosecuted ^ ^
hilT *,r' ^"' ""*"* '" ^ ^'•"' ^- ^- 819. it was
held that selhng s-xteen gallons of liquor for and as
cghteen gallons, anu getting paid for the eighteen gallons
Z Xnt ' "' "■" " '""'°^'"°'"' ^"' -' -■■"•'"'
The result of the cases appears to be, that if a man sell
i?
634
THREATS, ETC.
hy false weights, though only to one person, it is an indict-
able offence, but if, without false weights, he sell, even to
many persons, a leas quantity than he pretends to do it
is not indictable.— 2 Buss. 610; R. v. Eagleton, Dears
376, 515. i^ > s.
If a man, in the course of his trade, openly and publicly
carried on, were to put a false mark or token upon an
article, so as to pass it off as a genuine one, when in fact it
was only a spurious one, and the article was sold and
money obtained by means of that false token or mark, that
would be a cheat at common law, but the indictment, in
such a case, must show clearly that it was by means' of
such false token that the defendant obtained the money;
by Chief Justice Cockburn, in M. v. Gloss, Dears & B
460.
Offences of this kind would now generally fall under the
'' Trade Marks Offences Act."
Frauds and cheats by forgeries or false pretences are
also regulated by statute.
All frauds affecting the crown or the public at large are
indictable, though arising out of a particular transaction or
contract with a private party. So the giving to any person
unwholesome victuals, not fit for man to eat, lucri camd,
or from malice and deceit is an indictable misdemeanor —
2 East, P. a 821, 822. And if a baker sell bread con-
taining alum in a shape which renders it noxious, although
he gave directions to his servants to mix it up in a manner
which would have rendered it harmless, he commits an
indictable offence ; he who deals in a perilous article must
be wary how he deals ; otherwise, if he observe not proper
caution, he will be responsible. The intent to injure in such
cases is presumed, upon the universal principle that when
a man does an act of which the probable consequence may
'*itifcew«a4 it;
THREATS, ETO.
635
be highly injunoua, the inteDtion is an inference of law
resulting from doing the act.-A v. Dixcm, 3 M.S S U
If a person maim himself in order to have a more ape-'
cious pretence for asking charity, or to prevent his being
enlisted as a soldier, he may be indicted, and on convic:
tion punished under sect. 26, ante.-l Hawkins, 108
by sect. 80 of the Larceny Act, p. 442, ante
In indictments for a cheat or fraud at common law, it is
not siifficient to allege generally that the cheat or fmud
was affected by means of certain false tokens or false pre-
tences but it is necessary to set forth what the false tokens
or pretences were, so that the Court may see if the false
tokens or pretences are such within the law. 2 East, P. O.
837 But the indictment wiU be , ufficient if upon the
whole It appears that the money has been obtained by
means of the pretence set forth, and that such pretence
was false.— 2 East, P. C, 838.
It would seem that sec. 250 of the Procedure Act does
not apply to cheats and frauds at common law, and that,
therefore, the court has no power of awarding restitution
of the property fraudulently obtained, upon convictions on
mdictments other than those brought under the Larceny
Act.-2^a<P. a839. ^
Upon an indictment for any misdemeanor, if it appears
to the jury upon the evidence that the defendant did not
complete the offence charged, but that he was guilty only
an attempt to commit the same, the jury may convict
of the attempt ; sec. 183, Procedure Act
By sect. 184 of the Procedure Act, if upon the trial of
any person for any misdemeanor, it appears that the facts
given m evidence, while they include sv^h misdemeanor
amount m law to a felony, such person shall not, by reason
* t <
1/
i u
636
THRBATS, ifOi
thereof, be entitled to be acquitted of such misdemeanor
unless the court thinks fit to discharge the jury, and to
direct such Iperson to be indicted for felony.
The act now under consideration also provides for the
punishment of conspiracy, when not otherwise specially
provided for by any statute.
Conspiracies to murder are provided for by sec. 3 of c.
162, p. 141, ante^ concerning offences against the person.
Assaults arising from conspiracies are regulated by sec 9
c. 173. ■ '
Conspiracy is a combination of two or more persons to
accomplish some unlawful purpose, or a lawful purpose by
unlawful means. This is the definition of conspiracy as
given by Lord Denman in R. v. Seward, lA.&E.lQ^-, and
though questioned by the learned judge himself in R. v.
Peck, ^ A.'i& E. Q%Q, as an antithetical definition, and in
R. V. King, 7 Q. B. 782, as not sufficiently comprehensive,
it seems to be so far adopted as the most correct definition
of this offence.— 12. v. Jones, 4:3. S A. 345 ; 3 Russ. 116.
Bishop, 2, Cr. L. 171, has in a clear and concise manner
said " Conspiracy is the corrupt agi'eeing together of two
or more persons to do, by concerted action, something un-
lawful, either as a means or an end." See also R. v. Bunn,
12 Cox, 316.
But the word " unlawful " used in these definitions of
conspiracy, does not mean *• indictable " or "criminal."
The combining to injure another by fraud, or to do a civil
wrong or injury to another is an indictable conspiracy. So
in a case where the prisoner and L. were in partnership, and
there being notice of dissolution, prisoner conspired with
W. & P. in order to cheat L. on a division of assets at the
dissolution, by making it appear by entries in the books
that P. was a creditor of the firm, and by reason thereof,
THREATS, ETC.
637
partnership property was to be abstracted for the alleged
object of aatiafying P., it was held by the Court of Crown
Cases Reserved that this was an indictable conspiracy —M
V. Warburton, 11 Cox, 584. See R, v. Aspinall, 13 Cox
231 and 563 ; R. v. Orman, 14 Cox, 381, '
Mr. Justice Drummond, in E. v. Boy' 11 L C J. 89
has given the following definition of conspiracy : <' A con'
spiracy IS an agreement by two persons (not being husband
and wife), or more, to do or cause to be done, an act, pro-
hibited by penal law, or to prevent the doing of an act
ordered under legal sanction by any means whatsoever or
to do or cause to be done an act whether lawful or not' by
means prohibited by penal law.''_i2. v. Boulton 12 Cox
87 ; E. V. Parnell. 14 Cox, 508 ; E. v. Taylor, 15 Cox
625, 268. ^ *'
No indictment for conspiracy can be preferred unle<*8
one or other of the preliminary steps required by sec 140
of the Procedure Act has been taken. See 3 Euea. 116 •
Archbold, 936; E. v. Levine, 10 Cox, 374; E y Levds'
n Cox, 404 ; E. v. Boulton, 12 Cox, 87 ; 2 Bishop, Cr[
On an indictment for conspiracy to defraud by obtaining
goods on false pretences, the false pretences need not to set
\x^.— Thayer v. E., 5 L. N. 162.
An indictment for conspiracy with intent to defraud —
declared insufficient.— i2. v. Sternberg, 8 Z. iV. 122 '
What are the necessary allegation in an 'indictment for
conspiracy.-ij!. v. Downie, 13 E. L. 429.— See also
Defoy V E., Eamsay's App. Cas. 193.
Acts done to coerce others to quit their employment in ■
pursuance of a conspiracy are indictable.— i2 v HibbeH
13 Cox, 82; E. v. Bauld, 13 Cox, 282.
688
THREATS, ETC.
Where two persons aro indicted for conspiring together
and they are tried together, both must be acquitted or both'
convicted. — E. v. Manning, 12 Q. B. D. 241.
27. Every one wl)o destroyH, alters, mutilatefl or falsifloa any of hia
books, papers, writings or securities, or makes, or is privy to the
making of any false or fraudulent entry in any book of account or
other document, with intent to delraud his creditors, or any one or
more of them, is guilty of a misdemeanor, and liable to six months'
imprisonment.— C./S. V. C.,c. 26, o. 19.
28. Every one who makes, or causes to be made, any gift, con-
veyance, assignment, sale, transfer or delivery of his lands, heredi:a-
ments, goods or chattels, or who removes, conceals or disposes ot an y
of his goods, chattels, property or effects of any description, with intent
to defraud his creditors or any of them, and every one who receives
any such property, real or personal, with such intent, is guilty of a
misdemeanor, and liable to a fine not exceeding eight hundred dollars
and to one year's imprisonment.— C S. IT. C, c. 26, s. 20.
MISCONDUCT OF OFFICERS INTRUSTED WITH EXECUTION
OF WRITS.
29. Every one who, being a sheriff, deputy sheriff, coroner, elisor
bailiff, constable or other oHicer intrusted with the execution of any
writ, warrant or process, wilfully misconducts himself in the execution
of the same, or wilfully and without the consent of the person in
whose favor the writ, warrant or process was issued, makes any false
return thereto, is guilty of a misdemeanor, and liable to a tine and
imprisonment, in the discretion of the court. — 27-28 V., {Can.) c. 28
s. 31, part.
EMBRACERY.
SO. Every one who is guilty of the offence of embracery, and every
juror who wilfully and corruptly consents thereto, is liable, on indict-
ment, to tine and imprisonment. — O. *S. U- C, c. 31, s. 166.
QUI TAM ACTIONS — QUEBEC.
31. Every private prosecutor in the Province of Quebec who, being
a plaintiff in a qui tarn action, discontinues or suspends such action
without the permission or direction of the Crown, is guilty of ami!;ie-
meanor. — 27-28 V. {Can.), c. 43, *. 2, part.
THREATS, ETC.
639
It 18 essential to the existence of this offence of embra
eery that there should be a judicial proceeding pending at
the time the offence is aUeged to have been committed • and
the existence of such proceeding must be alleged in the
indictment.— i2. v. Lehlanc, 8 L. N. 114.
What is embracery.-_i2. y. Cornellier, 29 L C. J. 69
i '
m
I :
1,
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1
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1
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• .■ '•: M
CHAPTER 174.
AN ACT RESPECTING PllOCEDURK IN CBIMINAL
CASES.
HER Majeflty, by and with tl.e advice and confient of the Sormtn
and House of Commons of Canada, enacts as foliow« :—
SHORT TITLE.
1. Tills Act may be cited as " The Criminal Procedure Act."
INTEKPKETATION.
2. In this and in any other Act of Parliament containing anv
provision relating to criminal law, unless the context otherwise
requires,— '""
(a.) The expression " any Act," or, " any other Act," includes anv
Act passed or to be passed by the Parliament of Canada, or any Act
passed by the legislature of the late Province of Canada, or pasid or
to be pasned by the legislature of any Province of Canada, or passed
by the legislature of any Province included in Canada, before it waa
included therein j
(6.) The expression "justice" means a justice of the peace and
mcludes two or more justices, if two or more justices act or have
jurisdiction, and also any person having the power or authority of
two or more justices of the peace, and one justice may act, miles,
otherwise specially provided ;
(c.) The expression •• indictment" includes information, inquisition
and presentment as well as indictment, and also any plea, replication
or other pleading, and any record ;
(d.) The expression " finding of the indictment" includes also the
taking of an inquisition, the exhibiting an information and the making
of a presentment ; °
{e.) The expression "property "includes goods, chattels, money
valuable securities, and every other matter or thing, whether real or
personal, upon or with respect to which any offence may be com-
mitted ;
if.) The expression " district, county or place " includes any divi.
PROCEDURE ACT.
641
»io„ of any Province of Canaua. for purpoaea relative to th. *,. • •
tration of juntice in criminal cases , * adminia.
0/ ) The expression " territorial diviainn " .«^-
co.,n,ie. township, city, town, Irt' rotherTuJir," d'i' "''"" °^
place to which the context applies , "^ ' *^"""°» «5
(A.) The expression '• the court for crown cases reserved " mp.n,
and iiiciuaes, — 'onorvea means
(1.) In the Province of Ontario, any division ftf »K. a- u ^
Justice for Ontario , ^ °" ^' ^*** ^'«h Court of
(2.) In the Province of Quebec, the Court of Queen'« K«nM
appeal side thereof 5 ^ **" ^ ^«"ch, on the
(Hj In the Provinces of Nova Scotia N>o» n. •■
respectively j " •^ro\ince8,
(4.) Ill the Province of Prince Edwarrl ruio.,,! .1 o
Judicature for that Province " '^' '^' ^"P''^'"^ ^ourt of
(5,) In the Province of Manitoba, Her MaiVs^v'.. rr. i ^ r^
Bench for Manitoba ; and- "^ ^ ' ^^^'^ °^ ^"^^"'s
(6 ) In the Northwest Territories, the Supreme Court of the
Northwest Territories.— 32-33 V.. c '29 ^ i ««,* j L
for*. H.S. l^.S. i,ra *•., o,' 17,,'. MtVJf f'^-/ "■•"'
169, «. 22, pari. * '^ ^ ^- "^^ -"• -"' «•
JURISDICTION.
3. Every superior court of criminal jurisdiction shall have power
to try any treason, felony or other indictable offence -34 V ^71
S.2. 31 v., c. 42, s. 5. ^0 v., c. 4,,. 4, part ^^^'''^^'
4. No court of general or quarter sessions or recorder's court nor
any court but a superior court having criminal jurisdictbu shall
o::;?:rs3;T,rr:'i2: - — ^^^^^-^c^"
. In Canada, the courts of general or quarter sessions
have jurisdiction in all cases except treason, murder
rape, libel, offences under sects. 21, 22 and 23 of c 162
(sec. 5 Procedure Act,) offences under sects. 60 to 76*
RR '
t:
t
3
5
•<"^
642
PROCEDUEE ACT.
both inclusive, of c. 164 (sec. 6 Procedure Act,) perjury
subornation of perjury, and forgery, by common law •
counterfeiting coin (probably) which was treasou by
different statutes (1 East, P. C. 158 ; 2 Hale, 44 45 • 25
Edw. Ill, c. 7, 8. 7.), bribery, under influence, persona-
tion or other corrupt practices in elections for Parliament
(sect. 116, c. 8,Kev. Stat.) offences against sects. 6, 7 and
8 of c. 146.
The following passage from Archbold's Quarter Sessions
p. 5, on the jurisdiction of the courts of quarter sessions'
explains fully what our law is on the subject, indepen-
dently of statutory enactments.
" Some doubts were formerly entertained as to the con-
struction that ought to be give to the words ' Felonies ' and
* Trespasses ' in the above commission ; some held that
they included only such felonies and misdemeanors aoainst
the peace, of which cognizance was given to justices of the
peace by the express words of a statute or statutes • others
held that as the commission was created by statute
namely, in pursuance of stat. 34 Ed. IIT., c. 1, these words
must be deemed to include only such offences as were felo-
nies and trespasses at the time of the passing of the act
and that if justices have jurisdiction of any offence created
since, it must be give to them by the express words of the
statute creating the offence. But these constructions seem
very unsatisfactory ; if, according to the first of them, we are
to hold that the courts of quarter sessions are to exercise juris-
diction only in those o^ses where cognizance of an offence
is specially given them by some statute, the court will
'have cognizance of very few offences indeed, and no juris-
diction in most of the cases in which we see them contin-
ually exercise it; and if, according to the second con-
struction, we confine their authority under the commission
PJiOOEDUBK ACT. g^j
to offen,»s which were felonies and trespaase. at the time of
I«s8mg the statute 34 Ed. III.. ., I, then we ahaU have
he .b,a«i,ty of a commission heing g„.nted in the ni^
teenth century to justices giving them authority to hear
and detemme such offences only as were felonies and treT
passes m the year 1360. There is nothingin the actitself
or the comm.ss.on, which at all obliges us to give tC
.0 narrow a construction ; and in modern times thegenera"
opmon of the profession, sanctioned by cases which shaU
p..sently be ment.oned. is, that with the exception of
perjury at common law and forgery, the court of quarter
s^sions has jurisdiction by virtue of the commission of all
felonies whatsoever, murier included, though not specially
named, and of all indictable misdemeanors, whetherleated
Wore or after the date of the commission. In fact, the on^
restriction upon their jurisdiction up to the time of thi
passing of the 5-6 V., c. 38 (30th June, 1842). hereafter
nieatioued. appears to have been the proviso contained in
the commission of the peace ; but if they thought fit even
m capital cases, to proceed to judgment, such judgment
would nave been valid until reversed for real error °n the
judgment or for substantial defect appearing on the face of
Uie recorf. As to the woM ■ trespasses.' the word used
when the commissions were in Latin, was ■ tra-nsgressione, ■
which was a word of very general meaning, including all
he inferior offences under felony, and also those injuries
for which the modern action of trespass now lies; it was
nauaUy rendered into Uw French, by the word ■t;spass-
and that is the word used in the original French of the abov'e
tatute of Ed. Hi., and it is there .^ndei«l into English
by the word .trespasses.' In perjury at common kw i is
indeed settled, that an indictment will not lie for it m a court
of quarter sessions; but perjury under the statute 5 EUz
*. ,
644
PROCEDURE ACT.:
c. 9, is within the jurisdiction of the sessions, by the
express words of the act. Forgery at common law also is
not cognizable by the sessions ; nor is forgery by statute
"as we shall see presently, when we come to consider the
jurisdiction of the sessions by statute. Where an indict-
ment for soliciting a servant to steal the goods of his master
was removed into the Court of King's Bench by wiit of
error, it was argued that the facts charged in the indict-
ment did not amount to an offence at common law, or if
they did, still it was not an offence indictable at sessions
as it was no breach of the peace. As to the first point
the court held clearly that the facts stated did amount to
an indictable offence ; as to the second point, Lord Kenyon
C. J., said: " I am also clearly of opinion that it is indicta-
1)16 at the quarter sessions, as falling in with that class of
offences, which being violations of uie law of the land, have
a tendency, as it is said, to a breach of the peace, and are
therefore, cognizable by that jurisdiction; to this rule there
are, indeed, two exceptions, namely, forgery and perjury,
why exceptions, I know not, but having been expressly
so adjudged, I will not break through the rules of law ; no
other exceptions, however, have been allowed, and there-
fore this falls within the general rule." The other ju(]ges
being of the same opinion, the judgment was accordingly
affirmed. So where an indictment for a conspiracy to
charge a man with taking hair out of a bag belonging to
one A. R. was preferred and found at sessions, and the
parties convicted upon it ; and it was afterwards removed
into the Court of King's Bench by certiorari, and a motion
was then made in arrest of judgment, on the ground that the
sessions had no jurisdiction of conspiracy, any more than
of perjury and forgery, it not being specified in their com-
mission, nor jurisdiction of it given to them by any special
PROCEDURE ACT.-
645
Statute; the court, however, held that the sessions had
jurisdiction.
Lord Mansfield, C. J., said that as no case had been cited
to show whether the sessions had or had not jurisdiction
the question must be decided upon general principles •
that as to the cases of perjury and forgery, mentioned in
argument, they stood upon their own special grounds, and
It had been determinad that justices had no jurisdiction of
them ; but as to conspiracy, " it is a trespass, and tres-
passes are indictable at sessions ; though not committed vi
et armu, they tend to a breach of the peace, as much as
cheats, which are established to be within the jurisdiction
of sessions." Where, however, a statute creates a new
offence, and directs it to be prosecuted before a court of oyer
and terminer, or gaol delivery, without mentioning the
general or quarter sessions, that is deemed to be an im^'plied
exclusion of the jurisdiction of the sessions with respect to
that particular offence. But where an indictment for lioht-
mg iires on the coast, contrary to 47 Geo. Ill sec 2 c
66, was preferred at the sessions, removed by 'cerLiorlri'
and tried at the assizes ; and it was objected for the defen-
dant that the sessions had no jurisdiction, as the statute
required that the offenders should be carried before a jus-
tice of the peace, and by him committed to the county
gaol, - there to remain until the next court of oyer and
termmer, great session or gaol delivery," which amounted
to an implied enactment that indictment should be pre-
fered in those courts only ; the court held that, as the
offence was a misdemeanor only, and the defendant miaht
be prosecuted for it without his being apprehended or^'in
custody, the clause in the act referred to did not prevent
the indictment from being preferred at the sessions ; they
held the indictment, therefore, to have been properly origin
nated, and passed se tence on the defendant.
\
i
■fifj i
646
PROCEDURE ACT.
In England, now, there is a statute which takes away
from the jurisdiction of tbe courts of sessions of the peace
a large number of offences, which these courts could before
try and determine. It is the 5-6 V., ^. 58.
5. Neither the justices 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
oc at any adjournment thereof, try any person for any oftence Vnder
sections twenty-one, twenty- two and twenty-three of the "Actrespect-
IMS' fences against the person.— 32-^3 V., c- 20, *. 48.
6. No court of general or quarter sessions of the peace sliall have
power to try any offence under any of the provisions of sections sixty
to seventy-six, both inclusive, of" The Larceny ^c?<. "—32.33 v., 9. 21
7. The judge of the sessions of the peace for the city of ebec the
judge of the sessions of the peace for the city of Montreal, and every
police magistrate, district magistrate or stipendiary magistrate an-
pointed for any territorial division, and every magistrate authorized
by the law of the Province in which he acts, to perform acts usually
required to be dune by two or more justices of the peace, may do
alone whatever is authorized by this Act to be done by any two or
mors justices of the peace, and the several forms in this Act con-
tained may be varied so far as necessary to render theiu applicable to
such case.— 32-33 V., c. 30, s. 59, and c. 36, s 8.
PLACE OF COMMISSION AND TRIAL OF OFFENCES.
8. When any offence punishable under the laws of Canada has
been committed within the jurisdiction of the Admiralty of En<Tland
the same may be dealt with, inquired of and tried and determined in
the same manner as any offence committai within the jurisdiction of
any court before which the offender is brought for trial —32-33 V r
29,«. 136.
9. When any person, being feloniously stricken, poisoned, orother-
wise hurt, upon the sea, or at any place out of Canada, dies of such
stroke, poisoning or 'mrt, in Canada, or, being feloniously stricken,
poisoned or otherwise hurt at any place in Canada, dies of such stroke,'
poisoning or hurt, upon the sea, or at any place out of Canada, every
offence committed in respect of any such case, whether the same
•mounts to murder or manslaughter, or of being accessory to murder
mr%,
' '■'^■^mM&i^ym-^-
f 'M
PROCEDimB ACT,
647
death stroke ^ieoning or hurt ^^^LT::'^'^^^^^^^^^
respects, ayfeuch offence had been wholly committed in tha dt
tnct, county or pIace.-32.33 V., c. 20, ,. 9^^ 24-25 T. c 100, 1 10^,
^\! V^ ^-'I' ^'' '• ^' ^"^P" ^°^^^ '^^' «« Offences
committed upon the sea, or within the jurisdiction of the
Admiralty shall, in any colony where the prisoner is charged
^ith the offence or brought there for trial, be dealt with
as if the offence had been committed upon any water
situate within the limits of the colony and within the
hmits of the local jurisdiction of the courts of criminal
jurisdiction of such colony.
And s. 2 of the same act enacts that: where any person;
shall die m any colony of any stroke, poisoning or hurt
such person having been feloniously striken, poisoned or
hurt upon the sea or within the limits of the admiralty, or •
at any place out of the colony, every offence committed in
respect of any such case may be dealt with, inquired of
tried, determined and punished in such colony in the same
manner in all respects as if such offence had been wholly
committed in that colony, and if any person in any colony
snail be charged with any such offence as aforesaid in
respect oi the death of any person who having been felo-
mously stncken, poisoned or hurt, shall have died of such
stroke, poisoning or hurt upon the sea. or any where within
the limits of the Admiralty, such offence shall be held for
the purposes of the act to have been wholly committed
upon the sea.
The 17-18 v., c. 104. s. 267. Imp., enacte that aU
offences against property or person committed in. or at any
place, either ashore or afloat, out of Her Majesty's domi-
nions by any master, seaman, or apprentice who at the time
1 f
I 'I'i
648
I'ROCEDURE ACT.
When the offence is committed is or within three months
rreviously has been employed in any British ship are
deemed to be offences of the same nature rejfpectively and
are liable to the sama punishments respectively, and mav
be inquired of, heard, tried, and determined and adjudaed
m the same manner, and by the same courts in the same
places, as if such offences had been committed within thfi
jurisdiction of the Admiralty of EnKand
The 18.19 V., c. 11..,.. I, Im^, enacts that if any
person, being a British ject, changed with havinc com
mitted any crime or offence on board any British shin
on the high seas, or in any foreign port or harbor or
If any person, not being a British subject, charged with
having committed any crime or offence on board any British
ship on the high seas, is found within the jurisdiction of
any court of justice in Her Majesty's dominions which
• would have had cognizance of such crime or offence if
committed within the limits of its ordinary jurisdiction
such court shall have jurisdiction to hear and try the case
as if such crime or offence had been committed within such
limits. Then it is enacted that nothing contained in tliat
section shall affect the 12-13 V., c. 96. (ubi mpra)
By the Imperial Merchant Shipping Amendment Act
30-31 v., c. 124, sect. 11, it is enacted that ;
" If any British subject commits any crime or offence
on board any British shi^ , or on board any foreign ship
to which he does not belong, any court of j.istice In Her
Majesty's Dominions, which would have had c(muzauce
of such crime or offence if committed on board a" British
ship within the limits of the ordinary jurisdiction of such
court shall have jurisdiction to hear and determine the
case as if the said crime or offence had been committed
as last aforesaid."
See It. v. Armstrong, 13 Cox, 184.
' i
PROCEDmiE ACT.
640
By 23-24 V., c 122, Imp., legislatures in Her Majesty's
possessions abroad are empowered to pass an enactment
as the one contamed in sect. 9 of the Procedure Act
ante. '
By 28-29 V 0. 63, Imp., any colonial law repugnant to
an Act of the Imperial Parliament is. to the extent of
such repugnancy, void.
And by the (W, (Colonml) JuHsdi^ion Act, 1874
—61 v., c. J7, Imp.—it is enacted that :
"Whereas hy certain Acts of Parliament jurisdiction
,3 conferred on courts in Her Majesty's colonies to try
persons charged w,th certain crimes or offences, and doubte
have ansen as to the proper sentence to be imposed upon
conv,ctaonof such persons When, by virtue of Ly
ac of Parhament now or hereafter to be passed, a person
. tned ma court of any colony for any orime ^r IsZ
committed upon the high seas, or elsewhere out of the
terntonal hm.ts of such colony and of the local juris-
diction of such court, or. if committed within such local
jurisdiction, made punishable by that act. such person
Sim 1 upon conviction, be liable to such punishment as
might have been inflicted upon him if the crime or offence
had been committed within the limits of such colony and
of the local jurisdiction of the court, and to no other, any-
thing in any act to the contrary notwithstanding : Provi-
ded always that if the crime or offence is a crime or offence
not pimishab e by the laws of the colony in which the trial
tak s place the person shall, on conviction, be liable to
such punishment (other than capital punishment) as shall
«r. to the court most nearly to correspond to the
punishment to which such person would have been liabl!
in case such crime or offence had been tried in England "
Ihc words "dealt with" apply to justices of ihe
I'!.:
650
PROCEDURE AOr,
peace; " inquired of " to the grand jury; "tried" to the
petit jury and "determined and punished" to the court;
by Lord Wensleydale in B. v. Muck, note Y, 1 Ii,,J
757. ' •
In R. V. Lewia, Dears, is S, 182, a wound was in-
flicted by an alien on an alien in a foreign vessel, bound
to England, of which wound the alien died in England
immedialety after landing. The offender was tried and
convicted of manslaughter, but upon a case reserved, the
court of criminal appeal held that the clause similar to the
above section 9 of our statute did not apply to such a case
and quashed the conviction. The judges said that this'
section was not to be construed as making a homicide
cognizable in England by reason only of the death occurring
there, unless it would have been so cognizable in case the
death hhd ensued at the place where the blow was given.
In this case, the injury which caused the death was inflict-
ed by one foreigner upon another on board a foreign
vessel upon the high seas, and, consequently, if death had
then and there followed, no offence cognizable by the law
of this country had taken place ; see 1 Bishop's Cr L
112 ; 1 Cr. Proc. 61, 53. / • •
A prisoner is "found," within the meaning of g. 21,
of 18-19 v., c. 91, uhi supra, wherever he is actually
present, and the court, where he is present, under that
act, has jurisdiction to try him, even if he has been
brought there by force as a prisoner.—iJ. v. Lopez; R y
Sattler, Dears. <k B. 525.
On jurisdiction as to offences committed within the
limits of the Admiralty, see Archbold: 29 ; 1 Ruas 762 •
1 Burn, 42. ' • >
A German vessel carrying the German flag, on a
voyage from Hamburg to the West Indies, commanded
a^i4.,rj
MOCEDUIi!. ACT.
6SI
by the pnsoner a German, and having a crew nearly all
German,, and a French pilot, whilat on her voyage in the ^
Br,t,sh Channel, at a point within 2i miles tv^m Dover
Beach, ran into and «,nk an English ship, and thereby
occasioned the death of an English subject on boarf of her
lie facts were snch as to render the prisoner (if he had
"—EnX''™'^'"'^"*'"''"''-'^"^'"-^^''"'
ffrfrf (per Coekbnrn, C. J., Kelly, C. B., BramweU, J.
A Lush, J., Pollock B., Field, J., and Sir B. Phillimoi^,
hat there was no jurisdiction in the courts of this country
to try the prisoner, a foreigner passing the English coast
on the high seas ma foreign vessel, though the occurence'
took place w.th.n three miles of the coact. Held (per
Cockburn, C. J., BramweU, J. A., Brett, J. A Lush I
Pollock, B., Field, J and Sir R. Phmimore,) t^It'th^
offence was not committed on board a British ship, though
the person whose death was caused was in a British sWp
at the time of the collision and sinking of her
Held, (per Lord Coleridge, C. J., Brett, J.' A., Amph-
ett J. A Grove J., Denman, J., and Lindley, J.,)
ohat the courts of this country had jurisdiction, the offend
being committed within three miles of the English coasV
,/f (per Lord Coleridge. C. J., and Denman, J ,)t"at
the offence was committed on board the British vessel
A V. KeynlZ Co.. 403. See M. v. Carr, 15 Zm
—R. V. Andemon, 11 Ow, 198
Now, by 41-42 V., c. 73, (Imp.), this decision in B v
f t^dt. """"' " """ '" *" '°"'"'^''- ^"'^ ^«' WB*»
The large inland lakes of Ontario are within the iuri.,
taon of the Admiralty.-^ v. Skarp. 5 P. //J™"
&
^
F
f
1
!| .
t/
I j
652
PROCEDURE ACT;
III
i
Where a person dies in this Province from ill-treatment
received on board a British ship at sea, the trial for man-
slaughter against the person who ill-treated him must take
place in the district where the man died, not where he
was apprehended.— i2. v. Moore, 2 Q. B, R. 52.
On an indictment for an offence committed on board a
British ship upon the high seas, it is not necessary in
order to prove the nationality of the ship to produce its
register, but the fact that she sailed under the British fla<T
is sufficient.— i2. v. Moore, 2 Q. B. R. 52. See R. v. Vol,
Seberg, 11 Cox, 520, and R. v. Bjornaen, 10 Cox, 74.
In an indictment for a larceny committed on board a
British vessel, it is sufficient to say upon the sea, without
saying, upon the high seas.— jR. v. Sprungli, 4: Q L R
110.
10. When any felony or itiisdenjeanor is committed on the boun-
dary of two or more (iietricts, counties or places, or within the dititance
of one mile of any such boundary, or in any place with respect to
which it is uncertain within whicii of two or more districtw, counties
or places it is situate, or when any felony or misdemeanor is bei^iui
in one district, county or place, and completed in another, every Huch
felony or misdemeanor may be dealt with, inquired of, tried, deter-
mined and punished, in any one of the said districts, counties or
places, in the same manner as if it had been actually and wiiolly
committed therein.— 32-33 V., c 29, s. 8.
This clause is taken from the 7 Geo. 4, c. 64, sec. 12 of
the Imperial Acts.
The distance of one mile mentioned in the above clause
is to be measured in a direct line from the border, and not
by the nearest road : R. v. Wood, 5 Jur. 225.
This clause does not enable the prosecutor to lay the
offence in one county and try it in the other, but only to
lay and try it in either ; R. v. Mitchell, 2 Q. B. 636. See
also on this clause ; R. v. Jones, 1 Den. 551 ; R. v. Leech,
Dears. 642.
PROCEDURE ACT. (553
Murder, like all other offences, must regularly, accordlnc
to the common law, be inquired of in the county in which
it was committed. It appears, however, to have been a
mutter of doubt at the common law. whether when a man
died m one county of a stroke received in another the
offence could be considered as having been completely
committed m either county; but by the 2-3 Edw 6 c
24, sec. 2. it was enacted that the trial should be in the
county where the death happened.
Under the said section 10 of the Procedure Act where
the blow is given in one county, and the death takes place
in another, the trial may be in either of these counties -1
Mvs8, 763. This clause applies to coroners, when a felony
has been committed, but not when the death is the result
of an accident.-i2. v. Greai Western Railway Companv
3 Q. B. 333 and note by Greaves, 1 Huss. 754 ; M. v. Orav4
Junction E. Co. II A. & E. 128.
11. When any felony or misdemenaor \b committed on Eny person
or on or n. respect of any property, in or upon any coach, wagon
cart or other carnage whatsoever, employed in any journey, or 1'
connnitted on any person, or on or in respect of any property on
board any vessel, boat or raft whatsoever, employed in any voyage or
journey upon any navigable river, canal or inland navigation, fuch
felonj or m.sden.eanor may be dealt «ith, inquired of. tried, dlter
nnned and pun.shed, u. any district, county c plac. through any
pan whereof such coach, wagon, cart, carria.o or ves.el. boat or raff
passed ,„ the course of the journey or voyage during which such
felony or m..de,neanor was committed, in the same nfanner as ifU
33 r."%t" 9!'"'"''"'"''^ '" «»ch district, county or place. J32!
12. Whenever the side, centre, bank or other part of any higlmav
or of any nver, canal or navigation, constitutes the boundary of Z
wo d.tncts, co.,nt.es or places, any felony or .nisdemeanor n ent oned
n the two secfons next preceding may be dealt with, inquired oT
tr.ed determmed and punished in either of such disticts? counties
or places, through or adjoining to. or by the boundary of any ^
:3'
*:c
HP*
\ ,
654
PROCEDURE ACT.
i
I!
whereof such coaoli, wagon, cart, carriage or ve««el, boat or rad,
pasfled in the course of tlie journey or voyage during which hucU
felony or misdemeanor waa committed, in the eame manner as if jt
had been actually committed in fluch district, county or place ~32-H1
v., c. 29, 8. 10. •a
These two clauses are taken from the 7 Geo. 4, c. 64
sec. 13, of the Imperial Statutes.
This enactment is not confined in its operation to the
carriages of common carriers or to public conveyances but
if property is stolen from any carriage employed on any
journey, the off*>nder may, by virtue of the above section
be tried in any county through any part whereof such
carriage shall have passed in the course of the journey
during which such offence shall have been committed.—
M. V. Sharpe^ Dears, 415.
As to the effect of the words "in or upon'' in this
section, see R. v. Sharpe, 2 Lewin, 233.
Where the evidence is consistent with the fact of an
article having been abstracted from a railway carriage,
either in the course of the journey through the county of
A., or after its arrival at its ultimate destination in the
county of B., and the prisoner is indicted under the above
flection, the case must go to the jury, who are to say
whether they are satisfied that the larceny was committed
in the course of the journey or afterwards. — R. v. Pierce,
6 Cox, 117.
13. If, upon the dissolution of a union of counties, any information,
indictment or other criminal proceeding, in which the venue is laid
in a county of the union is pending, the court in which such informa-
tion, indictment or proceeding is pending, or any judge who has
authority to make orders therein, may, by consent of parties, or on
hearing the parties upon affidavit, order the venue to be changed to
the new county, and all records and papers to be transmitted to the
proper officers of such county, and in the case of any such indictment
found at any court of criminal jurisdiction, any judge of a superior
court may make the order ;
^^•k^sii
PROCIDURE ACT.
655
county ; "" *"" 'r't'u in tiie eenior
nuance to appear for trial at any courf in I « ^'' "^ "'''^■
.gainnt wl.on. no indictn.ent ha« be"^, fouL befo LT'T """"'^' ^"''
place, «l.all I. i„,ieted. tried and ^^^^^r^t:Zr '"'"
unlcHH a judge of a superior court orders tie Z "''""'^'
conduced in tl.e junior county. i„ JS etent tl "*'" '" "^
recognizance, au the case may be shall Jw. r«. 7 , Pi-'soner or
««., the o»„ce I. charged to 1,.,. „!? ^ ''"• '" •°'' '"°h
in llie proper county de«„il,i„„ it .,^„,„" , """• '"V l* M
Md other wJr. ther..^ re,!^^"!';,""'" "^"""" "™"-
or6.ni.ed count,, or wuhi^ any ptwl; "'''.' '!,.'""''' "f 'V
M and charge,, to have b^n'Z:ZZ[itZltT' '"", ""
ined and punished «itliin any county of eucl, pl ^"'"^ °'
e,i,„. o. Offence slul, he »ithin^..e ;^ri:^£ franZur'tl ""^
jurisdiction over crimes or offences of tha il. *"^ ^<>>''"t having
witliin the limits of nuch countv Jfnrl i u ""^"•"^ committed
Offence may I. p.o.outedrand'^.'udr^^^^^ -f f-- or
trial, judgment and execution or otl'rZ Lit 17"'"^. ""''"■" ^°
oftl'Nce, in the same manner as if ZT" '"' '"''' """'"'^ «'
committed within the count; :i::erc;tr:sL?''^^ '^ ^^"
2. When any provisional judicial Hiaf-mf
.nae...h,i.„^ in .„, ., Th"': L'.^' ,,°'°- --'X « formed
oSencee committed within the iimii. „f T u ' """^ '"i»
di.lria or new county, shall be inouiLof ."L, •'°"™»»' '"■'"■■M
the »me, in lilce manner ae such crimt oi off " ""'i'"'"'' "■'""»
in,«ir», 0, .ri«, and punished iftMrtrSTotrn' 'Z^"
Province of Ontario 5 and the constahl. nt T ^ "^^ ^''^ '" "»«
"'-person and intrusted wrhr^^ra:;lMrZ
^•^
pi
■ f
i.
■
1
r
IIP
I
f ^i,
Ji:
;-:-^^^
PROCEDURK ACT.
gaol, may pass through any county in such Province with such person
in his custody ; and the keeper of tlio common gaol of any county in
Buch Province in which it is found necessary to lodge for safe
keeping any such person so being conveyed through such county in
custody, shall receive such person and safely keep and detain him in
such common gaol for such period as is reasonable or necessary ; and
the keeper of any common gaol in such Province, to which any such
person is committed as aforesaid, shall receive such person and safely
keep and detain him in such common gaol under his custody until
discharged in due course of law, or bailed in cases in which bail may
by law be taken.— C S. U. C, c. 128, ss. 100, 101 and 105.
16. Whenever any offence is committed in the district of Gaspe,
the offender, if committed to gaol before trial, may be committed to
the common gaol of the county in which the offence was committed,
or may in law be deemed to have been committed, and if tried before
the Court of Queen's Bench, he shall be so tried at the sitting of such
court held in the county to the gaol of which he has been committed,
and if imprisoned in the common gaol after trial he shall be so
imprisojied in the common gaol of the county in which he ha?
been tried.— C. S. L. C, c. 80, «. 6.
16. Every person accused of perjury, bigamy or any offence under
the provisions of sections fifty-three, fifty-four and fifty-five of " T/ut
Larceny Act," may be dealt with, indicted, tried and punished in the
district, county or place in which the offence is committed, or in which
he is apprehended or is in custody. — 32-33 V., c 20, *. 58, part, and
c. 21, s. 72, part, and c 23, s. 8. 33 V., c. 26, s. 1, part. 24-25 V.,
c. 96, s. 70 ; c. 100, s. 57, Imp.
Lynch was indicted in the district of Beauharnois for
perjury committed in the district of Montreal ; there wag
no averment in the indictment that the defendant had been
apprehended, or in custody, or that he was in custody at
the time of the finding of the indictment. The defendant
neither demurred nor moved to quash, but after verdict
moved in arrest of judgment on the ground that there was
no averment in the indictment of his having been appre-
hended or in custody. The sitting judge dismissed the
motion in arrest of judgment, but reserved the point so
raised.
PIIOCKDUBE ACT.
661
Eeld^ That the indictment was defective, that the defect
was one which could not be amended and, conseauendy
arrested and the defendant discha,^ed.^ie. v. Lynch, 20
L.t.J. 187, 7 i2. Z. 553.~See note under sec 1« L !
andi2. V. Smith, lF<e;F 3fi ai„. « »naer sec. 18, 2>os«,
17. The Offence fa„; pel 1 '' '^ ' ''^*- '^^•
aaer the fact, to any feZr^:;:X:Zu:T'''''f^^^^ ^^«- «'
mined and puni8hed by any court wf?L.K' •^'"''"''^ °^' ^"^' ^^^f"
principal felony, or an/ febnies ol' u'e 1 ' •'""!^''^"'" *° '^ *^«
place in which the actfby Ta on Xreof eacV""^ "'"u*' ''^""^^ «'
accessory, has been commuted Proved rhatTo^" became such
tried, either as an accessory before or after', K^r " ^''^'' ^"^'^ '^«^J'
tive felony, shall be liable to hTl / '^°^' ^^ ^*''' » ^'^bstan-
Cence Jl V., e. rV/f 8.^3 !33 ^Ttr ^^^^2^ ^^'^ ^^^^^
J, /m^. • "' '• 2- 24-25 r., c. 94, ..
There h a material difference between th« cJause
and the corresponding da„«, „f the Imperial Act Sc^
Greaves, note, to sec. 7 of the Imperial Act, «<te 25 „/
Armies, CoTw. Ads. ^^ ^J
18. Every one who commits any offence fttrnmo* *u » >. .
% Z'or^er^." or commits any offence of flif n ^'' '''^''^'
whatsoever, or of offerin.. utteHnT J ^^^'''*^''""° "^"^ '"»*»«'
matter whatsoever, knowii.^e Z. .'T'l"^ "[ "•■ P""'"^ ^^^ *"7
the offence in any uch laL^s Tndtlhf ^ "'^"'^ '"' '*^^^^^' ^^^'^'^
Of any act. ma^ be deaH h ^^^td Jri^^^^^^^
district, county or place in whi.h ittt^^^^t.^:! ^^^"^ '\T
in the same manner in all respects as if ,f» nfl^ , \ ! " °"'^^«
committed in that district. cCty^ ^tcf^de """ "^"*"^
Wore or after the fact to any su.hoffLeifVh ^""^ *''''«°'y
every F-on aiding. abettinVo/ofSn^fhe'or " ''''"^' *"^
such offence, ifthe same i«fl.J=i^ ^ commission of any
ed, tried and punLred in Lv hTT""' "'"^ ^^ ^'^^' ^'*h. indict
ia apprehendJo fat 'c"st2 " he s'a""'" " ^'^" '" ^^'■■«" ^«
if 1- offence, and the oZce or'hi« pr Uiral Tadt' " *"' "^^^^^^ «»'
mitted in such district.county or nIaoT~?2 ^1 F ^^"/''"'"^ *'°'"-
F., c. 98, s. 41, /;„^. ^ P'aoe.-32.33 F., c 19, *. 48. 24-25
It was held, under the corresponding section of the
88
1 Wia>'
I !
\\
658
PROCEDURE ACT.
i 1
English act, that where the prisoner is tried in the county
where he is in custody, the forgery may be alleged to have
been committed in that county, and there need not be any
averment that the piisoner is in custody there.— JB. v.
James, 7 G. & P. 553. And in the case of R. v. Smythiea,
1 Den. 498, it was held that, although the defendant is not
shewn to have been in custody in the county where the
bill is found, until the moment before his trial, when he
surrenders in discharge of his bail, that is sufficient to make
him triable there, and the judges said that the same ruling
had been given in R. v. Whileyy 2 Moo. C. C. 186, though
the report is to the contrary.
This last case is rightly reported in 1 C. «& K. 150.
See remarks under sec. 16, ante.
19. .Every one accuped of any offence against the provisions of
section foriy-six of the "Act respecting Offences against the Person"
may be tried either in the district, county or place in which the eanie
was committc?d, or in any district, county or place into or through
which the person kidnapped or confined was carried or taken wliila
under such confinement; but no person who has been once duly tried
for any such offence shall be liable to be again indicted or tried for
the same offence.— 32-33 F., c 20, s. 71.
See note under preceding section,
20. Every one who receives any chattel, money, valuable &ecurity
or other property whatsoever, knowing the same to have been felo-
niously or unlawfully stolen, taken, obtained, converted or disposed
of, whether charged as an accessory after tlie fact to the felony, or
with a substantive felony, or with a misdemeanor only, may be dealt
with, indicted, tried and punished in any county, district or place in
which he has or Ims had any such property in his pojeession, or in
any county, district or place in which the person guilty of the prin-
cipal felony or misdemeanor may, by law, be tried, in the same manner
as such receiver may be dealt with, indicted, tried and punished in
the county, dintrict or place where he actually received such properly.
32-33 v., c, 21, 3. 105.— 24-25 F., c. 96, *. 96, Imp.
See remarks under sees. 82, 83 and 84 of the Larceny
Act
•■^--^44
PBOCEDURE ACT.
A • "^9
A prisoner was tried af Ar«T
staining two ^'>nts'"oltrZ:^:,l:':^'^r
receiving stolen goods BoH. nff ^ ® °^^^' ^^r
been committed at liuroanf^^^^^^^ ^'''' ^'^^^^ ^^ ^^^^
verdict of guilt, ot ^^^^^f^ ^^« ^^^ fonnd a general
agat!f4lt^^^^^^^^^^ .^ave been proceeded
.e.ighthavebeen;:n:;:7:r^^^^^^^^^
was committed in another county traHw u°^^''^
was tried, he must be discharged n^ n "" ""^''^ ^'
3 B. <£> C. (iV. 8.) 254. ^'^'^'""^^^ «^«^ v. Russell,
31. B/erjone who brings into Oanai
therein, any property stolen, em bezzC !'.*"" V'" •"' P<>s«e9sion
fraud or false pretences in any other '' T""""^"^ ""' °b^»'"«d by
the stealing, embezzling, convert n^o^r "^^ '"•'""'^ '"^""^^ '^^^^
Canada, would, by the lawH of Canfda be '".T ' '" '^^ '"^""^'- '-^
may be tried and convicted in any d^strl.f ^^ *"" »"*^«nieanor.
1^3 Clause is nil' e\„\ir„ ::/'r "^*
And ia England, thefts oonZtToHotT": t^'^'
»d even in the Channel Islands are not i„ltbleT'".'
the stolen property is brought into EnZd u "*
are.clear on tha question. ^"giana. Ihe cases
If a larceny be committed ont of ti,. i • j
within the crown's dominion, b"L; „«\h':tr' "'""^*'
mto this kingdom will not make! L!„ I """"'^
i'^ws. 1 Moo. 0. a 349 r„d i „ I "^ ^''■~^- ^•
« in r.„ce, the party Lot^ ImuZIuJZI:
ie bnngs Uae goods thereto.-il v. Ma^ialpT
660
PROCEDURE ACT.
The prisoner had stolen goods in Guernsey and brought
them to England, where he was taken and eommitte<i for
trial : Held, that G nsey not being a part of the United
Kingdom, the prisoner could not be convicted of larceny
for having them in possession here, nor of receiving in
England the goods so stolen in Guernsey. — R. v. Dehruiel,
11 Cox, 207,
This sec. 88 of our Larceny Act is open to grave objec-
tions. Had Parliament the power to pass it ? Is it not
extra-territorial legislation ? Of course, a conviction or an
acquittal in the foreign country whence the goods have
been brought would be no bar here to another prosecution.
The rule that no man shall be put twice in jeopardy for
the same offence " cannot span country and country in such
a way as to cause a jeopardy in one country to free the
party from trial in another.'' — 1 Bishop, Cr. L. 983. See
^Y}leaton, International Lav), 184.
And vice versd, a conviction or an acquittal in Canada
would be no bar to a trial in the country where the ofi'ence
was committed, upon the return thereto of the offender. So
that a party from France, for instance, who has been tried
and acquitted there may, on his anival here with the pro-
perty, be arrested, tried and convicted of larceny upon the
same facts because, by the law of Canada, his act constitutes
larceny, though, in France, it did not. So that, according
to this interpretation of the clause, though this party com-
mitted no crime at the time, yet, tlie mere fact of his com-
ing to Canada with the property will retroact on his act
80 a3 to make it a crime ! And conversely, a French man
may be arrested, tried and convicted here for an act which,
in France, was not a criminal offence ; and, upon his
return to Fmnce, put upon his trial and found never to
have been guilty. The clause has no restriction. It
PEOCEDURB ACT. ^^^
extends to foreigners aq w^ii ^ r. . .
crime in Canada * ^°'^'^ """■"■■y « a
Now in J{. V. £«^ ^ iQo , . ,
of the Imperial Act eorrespondt 'to f; 9 1' "■" p"""
dure Act, it was held that thi. .1 "" ^'""e-
to the English conrL ove Iff' ' ^'™' "" jurisdiction
era on for^ ^^iZr^.^TLT'^f'^ "^ '"^^'«'-
said Coleridge J « wh.f? ? ^"""^ ^»» ^^^ say,"
ther on the VseJtttiratrr r f « »»-
^erm, 1 i)e,i. ]04 ^ ' ^®e, also, M. v.
eort:;i:::„'::s.°™^^^^^^^^^
beyond its territory excent a, t » "" ""'""' "'"' "'»''
imveno force to tnlrol th. t""" '"''J'^*- ''"'^ ™>
within its own JurirdS„ ^ nf ^J /"^^ ""f "^""-^
"Now, no preposition of law ™„ .^^ • ^ '^^'^- ^^O-
More unive Juy admitted trn^h7V""r"'"« "'
general law of nations » f,>.lf ' ^^'^'"g to the
naUy responsible t'hrff" """"'" "^ ''^"' -"''-
act, done beyond the li'l" If """"■' ""'his own, f„r
This clause of our statute, it is trn^ ^
express terms profess fo Haoi •./ ' ^^^^ °"*^ in
'«!■<- -'4 :.titir:ri:rr ^^
brmg mto Canada property acquired bvT' "'''' '»
country, ij. v. ffenJsseJpZ'^ttl '" """"'^'
*e trial by onr conrts „ralt3 din 7""? "'"""^'^
foreigner., and. as previou ,y ItlV^'f ' "'° ""
-mts to Stomp as a crime or Zh^t ,!" "T ""
crime an act dons in « f„„ • ' '" **"« ''««» a
timeitwa done "Tf T'"^ *"" "'"* »' *«
of that country The .^ t I' ^"' ' ^'"^ l'^' "'^ '""^
nf}. The contention that the bringing i^^
'"•If I
(B
r
662
PROOKDURE ACT.
Canada of the property stolen is the offence to be tried
here does not meet the objection. The first inquiry has to
be whether the property was stolen or not, whether there
was a crime or not in the foreign country.
The prisoner being the agent of the American Express
Co. in the State of Illinois, received a sum of money which
had been collected by them for a customer, and put it into
their safe, but made no entry in their books of its receipt,
as it was his duty to do, and afterwards absconded with it
to this Province, where he was arrested . Eeld^ that,
according to Canadian and English law, he was guilty of
larceny and was properly convicted here under the above
section. — E. v. Hennessey, 35 U. C. Q. B. 603.
In this case, it must be noticed, the prisoner was not
fou'nd guilty of bringing into Canada stolen property in
the words of the act, but he was found guilty of larceny.
The act does say that the bringing such a property ijto
Canada is an offence of the same nature as if the stealing
had taken place in Canada, But does that mean that he is
guilty of the same offence ? Does it not merely mean that
the nature of the offence of bringing such property into
Canada will be either felony or misdemeanor, according to
what the act done in the foreign country would itself have
been if done in Canada ?
No objection appears to have been made to the judge's
charge in that case, and this objection to the verdict was
not taken or noticed.
The whole case itself does not seem to have been fully
argued, and perhaps would bear reconsideration. It cer-
tainly does appear by the case as report^'-d that Hennessey
was, in Canada, found guilty of a larceny committed in the
United States
22, If any person has in his possession in any one part of Canada,
e part of Canada,
PROCEDUBB ACT.
663
part of Canada, lie mav h« H«aU •*; r^?'"*^ ^«'' '" any other
L larceny or I t r'that tart ^f P "'^1: '''"' '"^ P-'«'^«»
property, in the sa,ne Ll r^a i? he 1'. T'T '" ^^ '" «-^
or obtained it in that part and if » '*"*"^ '^'''''' ^'^ **•*«»
Canada receives or haslny chattel ' '""''" '? "^"^ ^"« P''''* o^
other property whatsoever whc: as TnTtolI "'"\"°""^^ °'
niously or unlawfully taken «r7/.y 7 ^^° ^'' ^^^^^^ise felc
such person knoWsuch Zoertt lof '" \"^'''^'' ^"^ ^^^«"^».
feloniously or nn/ar^^^y rkr^oZ' ^'" «^« '«"««• otherwise
indicted, tried and punished fo^nTl i '^'. '"*^ ^^ '^^^'^ ^'"'h.
where he so receivesTt^su h pr enyTtl" T ^^' '' "^"^'^^
it had been originally stolen c^r^Xl \. ^*™^ "'*'""" *« >f
F., c. 21, ,. I2f. 2^ tr^r^mT;^^'^ '" ''''' ^^''-''■'^
The words in ^to^^os are not in the Eaalish act
A watch was stolen in Liverpool ancT sent wi'th other
things by railway to a receiver in Middlesex ffeM tW
the thief was triable in Middlesex, although Jft^^^^^^^^
ev^^nce that he had left Liverpool.-ie.\. ^^^^
countvorjurifidiofion therein a„ 1 iff ' *"" '" *"^ ^"« ^''^'''^'
other-false or co^n.er'fdt co n ' in anv nt '"p"' """^ ^'^ P"*« ^^^'^"J^
orjurisdiction.eithero tl^lX^fi^^^^^^^
uttering or putting off. or within X "pt J 1:2^ T"'"'"^'
or if two or more cersons AnHn„ ^ ? ^^^^ "^*' ensuing,
in different X ic'rcou'nt e o ^!h;:;";.'" 'T'^' P-^inces. or
offence against the " Jcrrlll^r^J''""' *^^^'"' ^^'"""^ *»y
every such offender .ntbrratitlfl^r? it'^ ''^ '''' ^''^■"'"
and the offence laid and charld L k! ^ *"^ P""'^'»^'^'
of the said provinces or diTrt, ^'" committed, in any one
Ban,e manner in XV^c^aVeT^^^^^ or jurisdictions, in the
wholly committed w S C; pro i„ee dtt^^ "' ''"' ^'^^''^ ^"'^
^32.33r..e. 18. . 2. 24"2XrS^.t';;^r8rS^^
Greaves says on this clau.o: "The first part is intro-
■i >^'
664
PROCEDURE ALT.
' I
I
duced to remove a doubt which had arisen, whether a
perspn tendering, etc., coin in one jurisdiction and after-
M'ards tendering, etc., coin in another jurisdiction, within
sect. 10 (of the Imperial Coin Act,) could be tried in
either. As the offence created by that section is only
a misdemeanor, probably there was no substantial ground
for that doubt, but it was thought better to set the matter
at rest."
APPREHENSION OF OFFENDERS.
24. Any person found committing an offence punisliable either
upon indictment or upon summar}' conviction, may be immediately
apprehended without a warrant by any constable or peace officer or
by the owner of the property on or with respect to which tlie offence
is being committed, or by his servant or any other person authorized
by such owner, and t-hall be forthwith taken before some neighboring
justice of the peace, to be dealt with according to law.— 32-33 V. c-
22, a. 69, antZ c. 29, *. 2. 24-25 F., c. 97, *. 61, Imp.
25. Any person found committing any offence punishable either
upon indictment or upon summary conviction, by virtue of " 2hc
Larceny Act " or the " Act respecting the protection oj the Property
of Seamen in the ^lavy," may be immediately apprehended witlionta
warrant by any person, and forthwith taken, together with the
property, if any, on or with respect to which the offence is committed,
before some neighboring justice of the peace to be dealt with according
to law.— 32-33 F., c. 21, s. 117, part. 33 F., c. 31, jj. 6, part. 24-25
v., c. 96, 8. 103, Imp.
26. If any person to whom any property is offered to be sold,
pawned or delivered, has reasonable cause to suspect thot any such
offence has been committed on or with respect to such property, he
may, and, if in his power, he shall apprehend and forthwith carry
before a justice of the peace, the person offering the same, together
with such property, to be dealt with according to law.— 32-33 F.,
c. 21, *. m,pari, and c. 29, s. 3. 33 F, c. 31, s. 5, part. 24-25 v!,
c. 96, s. 103, Imp.
27. Any person may apprehend any other person found commit-
ting any indictable offence in the night, and shall convey or deliver
him to some constable or other person, so that he may be taken, an
Boon as conveniently may be, before a justice of the peace, to be dealt
PEOCEDUKB ACT.
665
wiU. according to law.^2.33 V., . 29. ,. 4. 14-15 V., e. 19, . „.
28. A117 constable or neace nffiM- ... • •
in.oc.tod,an,p..onXrh:?„I^^:;t^^^^^^^^
way, yard or other place, during the nLhf I T u ^ ^"^' '"«''*
cause to «n.pect of having conmUtLd or t ' ""t"'''^'" ''« ''"" «ood
felony, and .nay detain sL> ^I^Jn U ^V^^'l!: Tf)^ *"^
juHt.ce Of the peace, to be deakwlth according 7 it ' ^"''" *
2. No person who has been .«o apprehende.1 aI,..!! k» 1 . • ,
noou of the following day without E. rol . "L '"'^. ''''''
Ofences relating to the Coinr a J^oZyl^^^^^ f^' "^^^^^«"^
officer, constable or officer police so Ihatl.?"" '"^ " ^'^'^
80on as reasonably nmy be bSore aT. .'"''^ ^ conveyed. a8
.ithaccot^ing to^awl32ir.?i^" 'TtSr '^0'^ ^^'^'^
7»i^, ' ^''' *• ^^- 24-25 r., c. 96, *. 31 .
Pr«™r arrested and detained „p„n a telegram from
^13. See n. V. McBolme. 8 P. JJ. (On<.) 452
At common law, if a conatable or peace officer sees any
person comm,tt.„g a felony, he not only r^y, but h J^
nd .s bound .0 apprehend the offender. And not ola
constable or peace officer, but "all persons who are p es
ent when a felony is committed, or a dangerous 10^3
^ven, are 6W to app^hend the offender, onpl n of
be.ng fined and .mprisoned for their neglect, unless thev
were under age at the time; (2 HawuLu^] l
it is tU ,uty of a« persons to Irrest w^f 7;"^;^; ^"^
moo. a a 93; R. V. ITowartk. IMoo. C. 0. 207) So
r.ny person may arrest another for the purpose of nuttin"
t itaivuns, P. a 115; 1 Burn. 295, 299.) A peace
'lit
t ,.
i
666
PBOCEDURB ACT.
officer may arrest any person without warrant, on a reason-
able auspicion of felony, though that doctrine does not
extend to misdemeanors. And even a private person lias
that right. But there is a distinction between a private
person and a constable as to the power to arrest any one
upon suspicion of having committed a felony, which is
thus stated by Lord Tenterden, C. J., in Beckwith v. PhiU
by, 6 B. d' a 35 :
" In order to justify a private person in causing the
imprisonment of a person, he must not only make out a
reasonable ground of suspicion, but he must prove that a
felony has been actually committed; See Ashley v. Dundas,
5 0. S. (Ont). 749 ; whereas a constable, having reasonable
ground to suspect that a felony has been committed, is
authorized to detain the party suspected until inquiry can be
made by the proper authorities. See McKemie v. Oibson, 8
U. C. Q. B. 100. This distinction is perfectly settled. The
rule as to private persons was so stated by Genney, in the
Year Book, 9 Edw. 4, already mentioned, and has been
fully settled ever since the case of Ledwith v. Oatchpole
(Cald. 291, A. D. 1783) ; Greaves, on arrest without war-
rant." See Murphy v. Eills, 2 Han. (J)!. B.) 347.
Any private person may also arrest a person found com-
mitting a misdemeanor. This doctrine having been denied,
in England, by a correspondent of the Times, Mr. Greaves,
Q. C, the learned framer of the English Criminal Law
Consolidation Acts, published, on the question, an article,
(Appendix to Ch^eaves' Grim. Acts ) too long for insertion
here, but from which the following extracts give fully the
author's views on the question : —
" On these authorities it seems to be perfectly clear that
any private person may lawfully apprehend any person
whom he may catch in the attempt to commit any felony,
^^4fif
PROCEDUEB ACT.
667
J.nd take hin, before « justice to be dealt with accorfing to
ing withouta wa™„ta person foZ^C^^t^Tl
n,eanor ca„„ot be supported. On the con ary thl
authonties very strongly tend to show .i,.7
individual „ay arrest t^y persorwlt rcaTcL'T
mitting any misdemeanor It is nn,>o f. !u .
heen unable to «nd any exp^sl^^itrtS goes";:
that extent ; butit must be remembered\hat thrthe
,ue,t.on turn, on some common law rule, there Tver 1
have been any authority to lay down any genemrr,.k
eac ca,e must necessarily be a single insL" t '
definition of the o.ete h^: ve'^^Jet't:' i^nT'''^'^
binding authority, so in the P^sent L^te"^;; "^^^
surp™od,f wefind no general rule established " '
But when we find that all misdemeanors are of the
»n,e class, t,,„t j^ j, ,^^.^^^ ^^ distingnitr in an '
sa .sfactory way between one and another and tL 7
only case (Fox y. Gaunt) where such a dT, » *°
attempted, the court at oni re rdill i -ZIZ Z
the question whether a party indicted for 1 T '
was entitled to be dischar Jd n„ 7^ "^'^^emeonor
erdPn C T ^^^ Tr^ '*^''^ '^^^' Lord Tent-
h" ; u ' . ' '"^ "^'^'"'""^ ^^^ J^^g-^ent of the court
1 do not know how for this purpose, to distinguish betwen
one class of crimes and another. It has been urald tT,T
same principle will warrant an arrest inThe oZ f
moa assault. That certainly wiSow 1 IT'
dB d; a Add A ^ 1. ^"^it)Uow: Aa; parte Scott,
y ^. <£ a 44b. And Mhen,aboveall, the same broadprin^
I
^
I
668
PROCEDURB ACT.
oiple that it is for the common good that all offonders should
bo arrested, applies to every misdemeanor, and that prin-
ciple has boon the foundation of the decisions from the ear-
liest times, and was the ground on which Timothij v.
Simpson was decided ; the only reasonable conclusion
seems to be that the power to arrest applies to all misde-
meanors alike, wherever the defendant is caught in the
act." ,,• •.,•'.• vi.
It has been held that v/here a statute gives a power to
arrest a person found committing an offence, he must be
taken in the act, or in such continuous pursuit tliat from
the finding until the apprehension, the circumstances con-
stitute one transaction. — Ilanway v. Boultbee, 4 C. d- P.
350 ; li. V. Curran, 3 C. d; P. 397 ; R. v. Howart, 1
Moo.G. 0. 207 ; Roberts v. Orchard, 2 H. A' C. 769 ; and
therefore, if he was found in the next field with property
in his possession suspected to be stolen out of the adjoining
one, it is not sufficient ; R. v. Curran, 3 C. <£; P. 397 ;
but if seen committing the offence it is enough, if the
apprehension is on quick pursuit. Hanway v. Boultbee,
Ai C. & P. 350. The person must be immediately appre-
hended ; therefore, probably, the next day would not be
soon enough, though the lapse of time necessary to send
for assistance would be allowable ; Morris v. Wise, 2 F.
<fe i'. 51 ; but an interval of three hours between the com-
mission of the offence and the discovery and commence-
ment of pursuit is too long to justify an arrest without
warrant under these statutes. — Doiving v. Cassel, 36 L. J.
M. G. 97.
The person must be forthwith taken before a neigh-
boring justice, and, therefore, it is not complying with the
statute to take him to the prosecutor's house first, though
only half a mile out of the way ; Morris v. Wise, 2 F. &
.«4flv:j|!
PROCEDUHE ACT.
i..g.-& V. Ilunl 1 Z a a 93 """ ""'" "" — -
But no person can, in gonemi hL
warn.,,, for « ,„ero' ^^ 1^ ^^-IP-^f ^^l "'""'"'
breach of the i«aco, „s perjury „r I be, *"""'' "'"' "
^. P-nS; «„,1 „ private indfvid , ' "'' "■ ^'"' 30
without wanant, oftle "utd „ "*""°' ""■•"' "-""'or.
slablea and ,»ace olHcers -M.fT Z ' °"'^' <'™-
i^. i«4 ; .-0.. V, OaZ, 3 bTTHs o'T- ' *""■
~.«, 4 a; ^ JV. 265. Ndiher can 1 ' •'^" "' '^"^'^
-stab,, a™, a perJ'ltL ".747^ 'T "
of misdemeanor • /? v r..^. , "/*"*"'^ on a charge
ft* 13 Cox, 202 : tlf T""' '' "'^^ ^- C"^ V
committing th IIL^T.^^'' """'' '"'^'^ "/-«<«
in the case; a, an^wh ^te 3^:" """""^ '"^ "-«'•
him to do so. And thou«r !t ^ ''""'"^ "'"■'"ri^es
to prevent a breach f t I Zfe'""™ "" "'^'"' »» '"™»'
afrra,, yet, after the :;;:r i^ Z" 'etl" " ™' "' ""
mn„„t apprehend any person guilty If it „n> " T*^^^'
danger of its renewal _pw™ '« 7 ' T^'' *"'« "
fi«y«.» V. S,.^sle,; 2 OB \^ t " ^- *^- 28;
«% 5K JiE m T^ f ' ■°^*'«"^ V. Cor.
I «■ 757 ; It. V. -i. ^r^3;3 «7^-. 1 O. M.
Dean, i B. 332, it appeal ft,f,t '° ^J- %H
standing outside the defenlantt h °°"'"'"''' *'"'«
"P a shovel and hold itt" 2 .'"'."'''■ '"* ^im take
-•fe'3 head, and heaM 1, at ,1? ^'"« «'"'••* -er hi.
670
PROCEDURB ACT.
I'>
his wife altogether, and was taken into custody by the
constable, who had no warrant, when he had proceeded a
short distance in the direction of his father's residence •
the prisoner resisted and assaulted the constable, for which
he was tried and found guilty, and, upon a case reserved
the judges held that the conviction was right, and tliat the
constable had the right to apprehend the defendant. " A.
constable, as conservator of the peace," said Williams J.
" has authority, equally with all the rest of Her Majesty's
subjects, to apprehend a man where there is reasonable
ground to believe that a breach of the peace will be com-
mitted ; and it is quite settled that where he has witnessed
an assault he may apprehend as soon after as he conve-
niently can. He had a right to apprehend the prisoner
and detain him until he was taken before justices, to be
dealt with according to law. He had a right to take him,
not only to prevent a further breach of the peace, but also
that he might be dealt with according lo law in respect of
the assault which he had so recently seen him commit."
Arrest, without warrant, for contempt of court.
Judges of courts of record have power to commit to the
custody of their officer, sedente curid, by oral command
without any warrant made at the time. — Kemp v. Neville,
10 C. B. N. S. 523. This proceeds upon the ground
that there is in contemplation of law a record of such
commitment, which record may be drawn up when
necessary ; Watson v. Bodell, 14 M.. <& TT. 37 ; 1 B%rn,
293; for the like reason no warrant is required for
the execution of sentence of death. — 2 Eale, 408. If a
contempt be committed in the face of a court, as by rude
and contumelious bohavior, by obstinacy, perverseness,
or prevaric5\tion, by breach of the peace or any wilful
disturbance whatever, the judge may order the offender to
PROCEDUEE ACT. g.,
be instontly, without any warrant, apprehended and im-
pnsoned, at h«, the judge',, discretfon, without any
further proof or examination; 2 a-„«,K^ 221; ctoZ
559; 5B &A.894; but the eommitment must be ff;
a t,me certam, and if by a justice of the peace for a
contempt of himself in his oifice, it must be b/w^ln in
wntmg; Mayhew v. locke. 2 Marsh. 377; 7 TaunlT-
and the jurisdiction with regard i coLtlJ^Jk
belongs to ^nfer^or ccuris. and in particular to the ^Zt
court, .sconiined to contempts committed in the co"rt
.tself.-& parte Jolife. 42 i. J^, Q. B. 121. This te
case rests pnnoipally on the 9-10 v., „ 96 rin,,, ^ Iv^u
gives to county courts power to commit fo^cXtt:'
m,tted m face of the court, but is silent as to conteZf
comm.tted out of court; see 4 SUpkens' clluTZ
Lefroy, L. R. 8 Q. B. 134 ^'
Kw, ^fa« and rmn-^ of arrest—A person chareed
ouacnmmal account may be apprehended at anytime
arrests on Sundays, except in cases of treasons felonie,
and breaches of the peace, but now. an arrest n an'
mdictable oifence may be executed on a Sunday. CI
10 Ar 1039 No place affords protection to offenders
r5:„s "'" they may be.-B„c„«W6,.. Ferj;
As to the manner of arresting withont warrant bv a
pnvate person, he is bound, prevbusly to theTe t t!
notfy to the party the cause for which he arr sts Ind ^
2"™ h.m to submit; but such notiiication is n i nece^
-y where the party is in the actual commission ofThe"
ill
A- ^.
672
PROCEDDKE ACT.
offence, or where fresh pui-suit is made after any such
offender, who, being disturbed, makes his escape; so a
constable arresting, without warrant, is bound to notify his
authority for such arrest, unless the offender be otherwise
acquainted with it, except, as iu the case of private
individuals, where the offender is arrested in the actual
commission of the offence, or on fresh pursuit—i? v
Howarth, 1 Moo. C. C. 207,
If a felony be committed, or a felon fly from justice, or
a dangerous wound be given, it is the duty of every man
to use his best endeavors for preventing an escape, and
if, in the pursuit, the felon be killed where he cannot be
otherwise overtaken, the homicide is justifiable. This rule
is not confined to those who are present so as to have
ocular proof of the fact, or to those who first come to the
knowledge of it, for if in these cases fresh pursuit be made,
the persons who join in aid of those who began the pursuit
are under the same protection of the law. But if he may
be taken in any case without such severity, it is, at least,
manslaughter in him who kills, and the jury ought to
enquire whether it were done of necessity or not ; 1 East,
P. C. 298 ; but this is not extended to cases of misde-
meanor or arrests in civil proceedings, though in a case of
riot or affray, if a person interposing to part the comba-
tants, giving notice to them of his friendly intention, should
be assaulted by them or either of them and in the struggle
should happen to kill, this will be justifiable homicide.
^Fost 272. However, supposing a felony to have been
actually committed, but not by the person suspected and
pursued, the law does not afford the same indemnity to
such as of their own accord, or upon mistaken information
that a felony had been committed, engage in the pursuit,
how probable soever the suspicion may be ; but constables
PKOCEDUKE ACT.
67^
acting on reasonable suspicion nf f.i
proceeding to such extreS;!^^^^^^^ ^"^^'^^ -
not be; but the constable mult W ! T'^^ °^"^
reasonable ground for sus^etl/ Ij' f .T '"'^
been committed: for a oL.llf ^ ^^^^^^ ^^8
shooting at a man w"h nteT :t T "^^^^^^^ ^^'
bodily harm, whom he saw 1' 1' tV"' ^"^^^"^
which he had been employed" ^^ "l' ^^^ "^ ^ -P««
ning away, would have escaDedTft' Tt ''^'' ^^^"«-
unless the man had b en prTvfoult " T '"'' ^«^
for the same offence he hl7 f ^"^'^'^"ly convicted
and, though he had b^n co^imitted a felony.
constable ^asLt^awarof^ T^dTh^ '^^^}^^^^' ^h'e
affirmed by the court of crown n. ^o^viction was
thin, the conviction ^Vsa^d^^^^J^-^- ^^^^
prisoner was uot justified in firing Tt' . ^" ^^^
the fact that Waters was com^i'lTC" '^""^
known to the prisoner at the time °? J? ^ ^n ""'^^ "^*
Den. 35. ^ ^''"^- — ^- v. 2)ac^so?i, 2
What is an " immediate arrest » under sen, 9^ .
13 a question for the iurv ^w/rvj. I ^* ^^ ^"^ 25
On the clause corresponding to sec 2& n^t. n
says: ° ^^- ^^> «^<«, Greaves
«hout passion or prejudice. wlSy Jr"' """«
tie party arrested of being the peraonTlf„ "''""**
offence, thougli the words of.h ?? committed the
the apprehomion of Xnel V'".""' ''™ "^ """'orize
AUen V. Ifre^Ai, 8 C. J:P. 522. A haie
I ir
M
674
PROCEDURE ACT.
surmise or suspicion is plainly insufficient. Leete v. Hart
37 L. J. C. P. 157 ; Davis v. Ruaaell, 5 Bing. 354."
If the conduct of the person arresting is impugned in an
action of false imprisonment, a question arises as to whom
does it belong to decide whether the defendant had reason-
able cause of suspecting the plaintiff. The authorities
conflict upon the point. In Davis v. Ruaaell, 5 Bing. 354
and in Stonehouae v. Elliott, 6 T. R. 315, the Court of Com-
mon Pleas held it to be the judge's province to decide
whether the facts alleged constituted such reasonable cause
and for the jury to say whether the facts stated really
existed, and the defendant acted upon their existence. But
in Wedge v. Berkley, 6 A.<(;E. 663, the court of Queen's
Bench considered the question of reasonable and probable
cause, a question purely for the jury. In the later case,
however, of Broughton v. Jackson, 18 Q. B. 378, it was
treated as a question of law ; and in the case of Hailes v.
Marka, 7 H. d- N. 56 ; see also Hogg v. Ward, 3 H. <& F.
417 ; the court of exchequer held the question of reasonable
cause to be purely one of law for the judge. It is to be
observed, however, that Bramwell, B., grounds his desci-
sion upon the case oi Panton v. WilliaTna, 2 Q. B. 169
■without adverting to the fact that that was an action for
malicious prosecution. It is submitted, however, that there
is a clear distinction between the two cases, for whilst only
judges or lawyers are competent to form an opinion upon
what facts an action or an indictment would lie, and are
thus the only persons competent to decide whether there
was reasonable cause for instituting a prosecution, yet lay-
men are quite as competent as lawyers to say what affords
a reasonable ground of suspicion against a particular person
of having committed a crime. And thus it may well seem
that in the one form of action the judge may direct the
PROCEDURE ACT. />^.
67.1
jury as to the reasonableness of tha ««„ *
leaving the jury to .soeZXZZ^Z ^T^""--
and in the other the jury mJhZlt\^^°'^ '^"^^ '
able canae of su.piin »"r^,y 1' tir^h """-
7 -cumstauces of each case^^ake t fm!^, J^' ilT
down any standarf or 6xed rule as to wW^ "^
ground of suspieiun _»■„„„ "w^ T ' « reasonable
In Lister v. Perryman, i » 4 tr r bo, •.
that it is a rule of law 7h»T .t' ^' " ™' •■<="
facts on which the oLstL f ''"'^ ""'' ""-^ *«
cause depends. Z ZZ d~ 'V V'*"'^
whether the facts found do'co^tr.! I m ™"'*'
probable cause, and that no defiZ ut JT^T^^ ""-»
for the exercise of the judge's jXent I^ "•""
for a malicious prosecutl„:althCrthe „„.«• " f'""
r :td rLteXtrer™ ^^^^^^
^^^:^:;^:^-^' - ^^
...spectedto have been obt^nedTyfny 'ffe " r™'"^
person, such person not only"ay Lt ' *"*''
apprehend the person oiferingV Ip: I OT^ "^
aon has any quantity of pmper^y^wrf^ but ,f a per-
kave been stolen etc in X ^ ^^ " ^'P^^ted to
i' to any one heca'not h ^"T"™' *"" ^"^ »»'<>*'
-^atL:ira;ttrnd::i:^^^^^
0-ot the Offender off^.s the pi; t:C;:;^-^|;
=«.-. I
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III* >••*!
676
PROCEDURE ACT.
is true that, by the common law, any peace officer may
lawfully apprehend a person in such a case, if there be
reasonable suspicion of a felony having been committed,
but a private person must not only have reasonable suspi-
cion of a felony having been committed, but must also be
able to prove that one has actually been committed, in
order to justify him in apprehending any person in such a
case ; BecJcwith v. Philby, 6 B. S C, 35 ; and if the case
were only a misdemeanor, no person is authorized by the
common law to apprehend after the misdemeanor has
been committed unless with a warrant. Fox v. Oaunt 3
B. & A. 798. The consequence is that, for instance, any
one who has obtained a drove of oxen by false pretences
may go quietly on his way, and no one not even a peace
officer, can apprehend him without a warrant ; but if a
man offer a partridge, supposed to have been killed in the
close season, he not only may but is required to be appre-
hended by that person, and, if the words of the clause are
strictly interpreted, whether the person so offering the
article is himself even suspected of guilt. See Greaves'
Cons. Acts, 188.
On clause 27 Greaves says :
" As the law existed before this statute passed, there were
sundry cases, in which persons committing indictable offen-
ces by night could only lawfully be apprehended by certain
specified individuals, amongst whom peace officer.s and
constables were sometimes omitted. The consequence was,
as might naturally be expected, that resistance was fre-
quently made by offenders, and grievous, if not mortal
injuries inflicted upon persons endeavoring to ap])rehend
such offenders ; indeed many melancholy instances have
occuiTed where death has been occasioned in nightly fray,
and the party causing such death, though found commit-
mi
i I
PBOCEDDME ACT. g^^
ting an offence, for which he might have been lawful y
Srtd t ]^ "'''• •"" ^-J-0 *» Puniahmei hi
aeservM Jor kilhng a peraon, who honestly believed h»
had not only a right, but waa in duty bouni,Z;™he„d
h,m teuae ,t turned out. upon investigation „n the
trial, that such person was not lawfully LitL 1 ,
appvehend th:.„gh some cause o, other Lh h' h, ^ rty
kdbng had no knowledge at the time. Thia clats wUh I
v,ew to remedymg all such eases, authorizes any peCn be
he who he may, to apprehend any pe..on found Zm.t
tmg any felony or indictable misdemeanor in the nT."-
«ud .t .s eonce.ved that it will prove highly benefill L'
not mg can mc at«,„g.y tend to the re'prL^n ff TL
ce, than the certain knowledge that, if the party is found"
coraiji^ttins: them bv anv ««« i. ^ louna
apprehend him." "" ^ ""'■ '"* P™"" -"^^ =" «"™
What is «s,A« under this clause J The Larceny Act
e(i„es.t, b„ only for the purposes of that act iigt
therefore :nth.s section, is not defined at all andThe
t.me m which >t begins and ends, in each case Cith refer
enoe to th,s section, is regulated by the common law
At common law, night is the time between sunset and
Under sec. 2S of our statute. Greaves remarks • "this
a >se IS new, a.d clearly „unecea.ary, as far aa i .^ila
to any felony or indictable misdemeanor, for tL e t no
doubt whatever that any person in th» Lt ,
any such offence is liable by the .1 """""ttmg
K.„j J 1, ^ '"^ common law to be annre
bended by any peraon, but it was introduced at the S^^^
« the aolici,»rs of the T^aauiy, aa it has b^^^I Cd
that there waa great unwillingness to apprehend in such
5e::r:;^rtoit^r-p--dam::;::
'\ w
it! '■
,1
678
PROCEDURE ACT.
ENFORCING APPEARANCE OF ACCUSED.
30. Whenever a charge or complaint (A) i^ made before any
justice of the peace for any territorial division in Canada, that
any person has committed, or is suspected to hate committed any
tri-ason or felony, or any indictable misdenjeanor or offence within the
Imiits of the jurisdiction of such justice, or that any person guilty or
suspected to be guilty of having committed any such crime or offence
elsewhere out of the jiirisdictiori of such justice, is or resides or is
suspected to be or reside within the limits of the jurisdiction of such
justice, then, and in every such case, if the person so charged or
complained agaihst is not in custody, such justice may issue his
warrant (B) to apprehend such person, and to cause him to be
brought before him or any other justice for the same territorial
divi8ion.--32-33 V., e. 30, s. 1.
31. The justice to whom the charge or complaint is preferred
instead of issuing, in the first instance, his warrant to apprehend the
person charged or complained against, may, if he thinks fit, issue his
sumhions (C) directed to such person, requiring him to appear before
him at the time and place therein mentioned, or before such other
justice of the same territorial division as shall then be there, and if
after being served with the summons in mannerhereinaOer mentioned
he fails to appear at such time and place, in obedience to such sum-
mons, (he justice or any other justice for the same territorial divisioa
way issue his warrant (D) to apprehend the person so charge.! or
oomplamed against, and cause such person to be brout'ht before him
or before some other justice for the same territorial divFsion, to answer
to the charge or complaint, and to be further dealt with according to
law ; but any justice may, if he sees fit, issue the warrant herein-
before first mentioned, at any time before or afr.r the time mentional
in the summons for the appearance of the accused person —32-33 V
c. 30, s. 2. ■'
32. Whenever any indictable offence is committed on the high
seap, or in any creek, harbor, haven or other place, in which the
Admiralty of England ■ ave or claim to have jurisdiction, and when-
ever any offence is committed on land beyond the seas for which an
indictment may be preferred or the offi^nder may be arrested in
Canada, any justice for any territorial division in which any person
charged with having committed, or suspected of having ccniimtted
any such offence, is or is suspected to be, may issue his warrant (D2)
to apprehend such person, to be dealt with as therein and hereby
directed.— 32-33 F., c 30, «. 3. .
PROCEDUBB ACT,
679
lade before any
[) Canada, that
committed any
IFence within the
person guilty or
srime or offence
or reHi(Ies or is
nliction of such
fio charged or
may issue his
use him to be
same territorial
lit is preferred
apprehend the
ks fit, issue his
appear before
)re such other
•e there, and if
ler mentioned,
e to such sum-
■itorJal divisioa
80 chargeti or
;lit before him,
sion, to answer
ii according to
arrant herein-
ime mentional
on —32-33 v.,
such persin has been ^Zij ^*"°" '" ^' '"•«'' "'"' ^''^t''"
to any'such charge ornoani i7s "^"""1' "^ "'^"^ '« ^^^^
pleaded to the indictment the tl,^'''"" ^"^ '"'' *PP^"«<^ «"d
or chief clerk of a "0"'; V L'i Tar »' ""^ " ^'""'^ '' *''^ «-''"
or sittings of the court at IhiCth^ , / ""'' 'u '^' '"'^ °' ^'>« '^'"^
application of the prosecuto o 1' \'"'^"^''"^"* ^as been found, upoa
payment of a fee of twe ty eel '."1; T'^'r" ^'« '^'^"'f' -"^on
a certificate (E) of eucl fn^ f' 7J^ '"'*' Prosecutor or person
production oLu'chcirttrr'nT^^^^^^^^^^
in wl>ich the oftence is alleged in Tli ! ? f territorial division
n^itted, or in which the p^S ind 1\J r'"' '" '"^^^ ^«" «^"-
Fcted to reside or tol.'^ucr uf r?>*^''' **" '' '"PP^««^ '' «»«■
apprehend the perso^, so in ic 7 Tnd lo '"" ."^ ""^"^"^ <^^ ^
beforehimoranyotherju ice for'th^ T'' '""' "^ ^ ^••«"g'>*
dealt with according to ifw.-L 33 K, c^rrr"'' '"'■^'^"' *« ^
anf th^ju::;::^::;;:^::::::^- jp;^^^^ and brought be^.
affirn.ation befor^ him hi the nJr "^ P'^""*^ "P«" ««^'» «'
charged and named i't^ ndi tme "shair'^f/''^' " ^'^ P^"°°
or examination, commit fQ) h^ n Jl. ' '"*?^"' further inquiry
hereinafter mention,r32 33 Kr.^^^^^^^^^^^^^ '"'" '« ^^^'^ -«
36. If the person so indicted is confined in anv <,«.! « •
any other offence than that charged in7h« I v7 ^ °'" P"'*'" ''°'"
B.'.ch application and producUrjfth cer itT'^ ! ' ''^ ''"^ °'
justice, upon its beine proved h^rnr^ . "'''^'*'^ «" JU^'tice, such
that the ,!erson so inc^cted and^hpl ' "^" "•^' "'^ affirmation.
one and the same perttth^fiersrrUrCHfd^" fr ''''
gaoler or keeper of the eaol nr n.:=^ • warrant (H) directed to the
i« then confined, commS LJC " i"."^'' *'" ^''''^ «^ '"dieted
until he is removed trretmLy wrfttf'^ ".'' ^'•"" " '"^ ^"^^^^
of the proper court, for thrp^" of b.i . T"' '^ '^ ^"^«'
indictment, or until he is otherwu! "^ ^"'^ "P^" ^'^^ «aid
custody by due courseriat-r33773;?'r'"^^' °"^^^''«
exe^clf o;;i;rwa^^^^^^^^ «"'^" P--* ^'^^ --ingor
jurisdiction thinrpro^eTS^ -^, --t of comperent
32-33 r., c. 30, *. 7. ' "'""'S "^^ "^"J^ s*^"'' warrant.-
M on any other day -32-33 v., c 30,78. *^' *' ""'*"
(«!«ij
'''•i
if
"tw
;^^
^80
PROCEIDURE ACT.
. 38. Whenever a charge or complaint for any indictable oflonce is
mado before any justice, if it ia intended to isflue a warrant in the flpst
instance against the person charged, an information and complftiat
thPf^oi (A) in writing, on the oatii or affirmation of the inforii,;int or
h> ..ii..> wit,.^H , or witnesses in that behalf, shall be laid before sLh
jusficp. - bk-33 v., c. 30, s. 9.
( 39. When it ia intended to issue a summons instead of a warrant
^ in the first insUnce, the information and complaint shall also be in
I writing, and be sworn to or affirmed in manner afbrepaid, except
i whenever, by some «<•* - L ' it is specially provided that the infor-
^mation and coihi^iaint may be by parol merely, and without any
oath or affirmation to support or substantiate the same— 32-J'i V ^
ao, *. 10. '"'
4.-0. The justice receiving any information and complaint as afore-
said, if he thinks fit, may issue his summons or warrant as herein-
before directed, to cause the person charged to be and appear as"
thereby directed ; and every summons (C) shall be directed to the
p.'i^on so charged by the information and shall state shortly the
Tiiatter of such information, and shall require the person to whom it
ifl directed to be and appear at a certain time and place therein men-
f-ioneiJ, before the justice who issues the summons, or before such
otherjuf^ticefor the same territorial division as nhall then he there
to answer to the charge and to be further dealt with according/ to law'
— 32-33 F.,c. 30 «. 13. o i« law.
41. Every such summons shall he served by a constable or other
peace officer, upon the person to whom it is directed, hy delivering
the same to such person, or if he cannot conveniently be so served
then by leaving the same for him with some person at his la^t or
usual place of abode.— 32-33 V.,c. 30, *. 14.
42. The constable or other peace officer who serves the saim-, shall
attend at the time and place, and before the justice in the .summons
mentioned, to depose, if necessary, to the service of the euminons -
32-32 v., c. 30, *. 15.
^ 43. If the person served does not appear before the justice at the
time and place mentioned in tlie summons, in obedience to t!ie same,
the justice may issue his warrant (D) for apprehending the person so
summoned, and bringing him before such justice, or before some
Other justice for the same territorial division, to answer the charge in
the information and complaint mentioned, and to be further dealt with
according to law.— 32-33 F., c 30, *. 16.
I'ROCEDURE ACT.
681
44. Every warrant (B) issued by any jiiHtice to apprehend any
person charged with any indictable offence shall be under the hand
and flea! of the justice issuing the same, and may be directe.1 to all or
any of the constables or other peace offl< .rs of the territorial division
within which the same is to be executed, or to any such constable an.1
ail other constables or peace officers in the territorial division within
which the justice issuing the sane has juriH<liction, or generally to
all the constablesor peace officers within such last mentioned territo-
rial division ; and it shall state shortly the offence on which it is
founded, and shall name or otherwise describe the offender; and it
sliall order the person or persons to whom it \h directed to apprehend
the offender, and bring him before the justice issuing the warrant,
or before some other justice for the same territorial division, to
answer the charge contained in the information and tobefuatherdealt
with according to law,— 32-33 V., c. 30, s. 17.
45. If, in any warrant or other instrument or document issued in
any Province of Canada, at any time, by any justice, it is stated that
the same is given under the hand and seal of any justice signing it,
such seal shall be presumed to have been affixed by him, and its
absence shall not invalidate the instrument, or such justitp may,
any time thereafter, affix such seal, with the same effect as if it had
been affixed when such instrument was signed.— 32-33 T., c 36, s. 4,
part.
46. It shall not be necessary to make the warrant returnable at
any particular time, but the same shall remain in force until
executed.— 32-33 V., c. 30, s. 18.
47. Such warrant may be executed by apprehending the offender
at any place in the territorial division within which the justice issuing
the same has jurisdiction, or in case of fresh pursuit, at any place in
the next adjoining territorial division, and within seven miles of the
border of the first mentioned territorial di ision without having the
warrant backed as hereinafter mentioned. - .i2-33 V., c. 30, a. 19.
48. If any warrant is directed to all constables or other peace
officers in the territorial division within which the justice has juris-
die- J, any constable or other peace officer fo. any place within such
terriiorial division may execute the warrant at any place within the
jurisdiction for which the justice acted when he granted such warrant,
in hlie manner as if the warrant had been directed specially to such
constable by name, and notwithstanding the place within which such
warrant is executed is not within the place for which he is constable
or peace officer.— 32-33 F., c. 30, «. 20.
f
M
■
' 1
Hi
'' 'i'
T^f]
1 ' t'M!
I
m
r
l^l
682
rROCEDURB ACT.
40. ICthe person agaii.at whom any warrant lias been issued can
not be found within the jurisdiction of the justice by who.n the.!!. I
wa« iflHued, or if he e.ca,.e8 into, or in suppoNed or i^ «UHpectod to be
n any p,,ee within Cana-la. outof the juriH^liction of the justice i^Hu.'
.^ he warrant, any justice within thejuri«,iiction of whom thepernon
•o eHcapeH. or ,n which he in or in Hu«pected to be. upon proof'a Ue
be ng ,„a.,e on oath or affirmation of the handwriting of the ins,
who .HHued the name, without any security being givenTHhall nii^e '
.dor.e.„ent (r on the warrant, signed with bin nan.e. anthori h.gtj
execufon of he warrant within the juri8,Jiclion of the juhI
nmk.ngthe.ndorsen,ent, and «uch indorsement Hhail be hu H
^.thorny to the person bringing such warrant, and to all other 2
rif ^ :; »''«"«">«^««"riginally directed, and uIho to all con,
-tables and o her peace officers of the territorial division where ti.e
warrant has been so indorsed, to execute the san.e in suchoth " e N
toral d.v,s,on, an.Mo carry .he per.on against whom the warrant
8««ed, when apprehended, before the justice who first issne<l the war-
rant, or before so.ne other justice for the same territorial division or
beforj8omeju.t.ceofthe territorial division in which theortenco„;en'
r. i'i "^T"""^ W«*" t''er^i" to have been con.mitted.--32.33
SO. If the prosecutor or any of the witnesses for the prosecution
are then m the territorial division where such person has been apnre.
bended, the constable or other person or persons who have apprdl -
ed him may, ,( so directed \y tiie justice backing the warrant take
lu'sTice^"":,'" ^"'" "'° "^''' ^"^ ^^"-*' - ^^^^--^ -"- o^
justice for the same territorial division or place ; and the said justice
may thereupon take the examination of euch prosecutor or witnes J
and proceed in every respect in the manner hereinafter directed, wiih
respect to persons charged before a justice with an offence allowed to
have been committed in another tarritorial division than that in u i.ich
sucli persons have beeil apprehended.— 32-33 V., c. 30, *. 24.
SEARCH WARRANTS AND SEARCHES.
See an article on search warrants in the Appendix to
Greaves' Cons. Acts.
61. If a credible witness proves, upon oath (K) before a justice.
that there is reasonable cause to suspect that any property wliatso-
ever, on or with respect to which any larceny or felony has been com-
mitted, 18 in any dwelling-house, out-house, garden, yard, croft or other
PROCEDURB ACT. gg3
the .ai..6 .,,,1 the ™.r.„ , ™M "^ ""'' '" """ '•"""'■ «> '>""g
viction, by virtue of «• rAlrl"^ 'nd c r„e„t or upon «u,„,„„ry con-
protectLofaei^[J^\i"'^^^^ " Act respecting the
nnnd-goldl,odi;rl,r^^^^^^^^^ any n.ining claim, thai
or silver ore, t IwullTdet^U T'"'"'" """'«""f— -i«ilver
Fr«on contrarv to lavT a Ln!r.T '." ""^ ^'''«'' ^'^ ''«'^' ^y «»y
Lh justice, . ilria'e'f It '''■■" ' "'T^ '"'^^ ^ '^^-^ l*^
be allowed, the ap^ :nX :7:t: '"' '^'"^ ^"^'' ''^^'^ «''*»
provided by law .Teases oann-^ ' ''ecog'u^ance in the n.anner
value of the gold or otlrLor^^'"'''" summary convictions, to the
1- appeal at'tt ^ 2^^fX\rtt^''^- '' T"- ^^^^^^^'^
behalf, and will pay the costsonhp * "**" *.'>*^'"g J^r'^liction in that
l.in,. and, if the n 4nda "11 Sm '" ',7 ''* '"'^'"' ^^^'"«'
court .ay im^se. with .:r^^'^:: ^;j^^::^t' '' '''
peftLt TnVrW ^IsfT '"^"^ 'r '^"^""^^'^ -- ^ «-
l".nl.r, belonging to anvTumb^?' ''"''^ °^ ''''^'' ^^^^'P''^" o^
the regLteredial mark Of strr T"^"" "''""^'^'•' ^"^ bearing
kept or detained in a^y tl ''i!:"'? " °""^^ ^^ '"•»^^' '«
Wedge or eonse.o^ftUr^,-'rn;t^a^^^^^^^
6
QM
BROCSDURB ACT.
enter into or upon the same, and search or examine, for the purpose of
ascertaining whether such timber, mast, spar, saw-log or other descrip
tion oflumber is detained therein without such knowledge and con-
Bent-38 v., c. 40, ».\, part. 8 «na con
55. If it is made to appear, by information on oath or affirmation
fcefore a justice, that there is reasonable cause to believe that any per
son has in his custody or possession, without lawful authority or
excuse, any Dominion or Provincial note, or any note or hill of any
bank or body corporaie, company or person carrying on the business
Of bankers, or any frame, mould, or implement for making paper in
imitation of the paper used for such notes or bills, or any sucli paper
or any plate, wood, stone or other material, having thereon any words
forms, devices or characters capable of producing or intended to pro-
duce the impression of any such note or bill or any part thereof, or
any tool, implement or material used or employed, or intended to' be
used or employed, in or about any of the operations aforesaid, or any
forged security, document or instrument whatsoever, or any machin-
ery, frame, mould, plate, die, seal, paper or other matter or thin-ruced
dr employed, or intended to be used or employed, in the forgery of any
security, document or instrument whatsoever, such justice may, if he
thinks fit, grant a warrant to search for the same ; and if the same is
found upon such search, it shall be lawful to seize and carry the same
before some justice of the district, county or place, to be by liini
disposed of according to law; and all such matters and things so
seized as aforesaid shill, by order of the court by which any such
offender is tried, or if there is no such trial, then by order of some
justice of the peace, be defaced and destroyed, or otherwise disposed of
»8 such court or justice directs.— 32-33 V., e. 19, ». 53.
^ 56. If any person finds or discovers, in any place whatsoever, or
in the custody or possession of any person having the same without
lawful authority or excuse, any false or counterfeit coin resembling
or apparently intended to resemble or pass for any current gold, silver
or copper coin, or any coin of any foreign prince, state or country, or
any instrument, tool or engine whatsoever, adapted and intended for
the counterfeiting of any such coin, or any filings or clippin<rs, or
any gold or silver bullion, or any gold or silver, in dust, solution or
otherwise, which has been produced or obtained by diminishing or
lightening any current gold or silver coin, the person so finding or
discovering shall seize and carry the same forthwith before a justice :
2. If it is proved, on the oath of a credible witness, before any jus-
tice, that there is leasonable cause to suspect that any person haa
PROCEDURE ACT.
685
been concerned in counterfeiiire currpnt „«u »-i
any foreign or other coin mZZTL^l: uT^ ""' '''^^' '''''^' ^'
relating to the Coin » or hi ; 1 . ^"^ "'P^'^'^ff Ofence,
or coun terfei c2 or t v in^ 1' «^P^««-ion uny such falae
adapted and inSed^o:rrrn;^runTe^^^^^^
or any such gold or "il er ,„' IT^ ? ^"^'' '^'PP'"^' ^^ ^""•°°'
any justice may. W In-ant unt' ?^'"*'«"/^«'^'^«r-i«e. as aforesaid,
ever belonging orln he o.?" "'^' '""^' ""^ ^^^'^ ^^^'^o-
suspected ;er!on^:Ve . 2^2: i^ the^f ''''■ T^' ^^ «"^^
iUny such false or counterfl^^c^t ^n^s r;::;'^^^^^^^^^^^
engine, or any such machine or anv Loh fii ^"""^ "^^"^ ^^"^' tool or
or any such gold or silver n dust Ll? ^''"S«' «''PP'"g« ^v bullion,
is found in any place o search eT' to ! Z "'''"''''''' ^' "^'^'^*''^'
carried forth Jth beLre I" ste: '' ""' ''^ "^ ^"'^^'^ ^"^^
clippings o; buiCo'^x'urinr^^r^^"'^^^'^
otherwise, as aforesaid i« U „ ^ '' "" '^"''' '°'"tion or
coin, .„d .11 i,>.tf„re„rtoJ ' d" ™':." '■"'" ""'' """'"''i'
.i,e ..king or counTeSintof " „ "f,!:,," *! ""t'"""*" ""
.acl, filing., olippin., „„d 1,11;°' ' J n "'' ""»'*"»<". "nd all
o;_«;e .„^ or o.He.l. ^Ij^^ Stl^ o^JS^r^.:
PROCEEDINGS ON APPEARANCE.
LweM b, .0 drg!:!,,r.33' K.,"'"3o r 3^ °' ^'""^ "■'" '^ **"
PEOCEDUUE ACT.
or in form, or for any variance between it and the evidence adduced
on the part of the prosecution, before the justice who takes the
examination of the witnesses in that behalf.— 32 33 V., c. 30, ss. 11
69. If it appears to the justice that the person charged has been
deemed or nualed by any such variance in any summons or warmnT
euch just.ce at ti,e request of the person charged, may adjourn tie
heanngof the case to some future day, and in the meantin.e n 1
~Zlt Zc.TT22. """'' '™ '" '"'' '' '"""*^'" -^""«-^!
60. If it is made to appear to any justice, by the oath or affirnm-
t,on Of any credible person, that any person within Canada is Ik 1,
to give matenal evidence for the prosecution, and will not voiuntar v
appear for the purpose of being examined as a witness at tli 2
and place appomted for the examination of the witnesses agains tl
accused, such justice shall issue his summons (L) to such pel
requiring him to be and appear before him at a time and place Ur b
mentioned, or before such other justice for the same territoria d^
8 on as shall then be there, to testify what he knows concerni ,g tl
charge made against the accused person.-32-33 V., c. 30, s. 25.
61. If any person so summoned neglects or refuses to appear at
the time and place appointed bythe summons, and no just eSel
offered or such neglect or refusal (after proof.'upon oath or Xn,!
tion of the summons having been served upon such person, person-
a ly or by being left with som. person for him at his last orusu 1
place Of abode), the justice before whom such person shoui Z
appeared may issue a warrant (L 2) to bring sucV person, at a Je
and place therein mentioned, before the justice who issued tkeZ
inons or before such other justice for the same territorial division as
Hhall then be there, to testify as aforesaid, and, if necessary X ad
warrant may be backed as hereinbefore mentioned, so that tla te
62. If the justice is satisfied, by evidence upon oath or affirina-
t.on, that It IS probable the person will not attL to give evidence
letsr"' ' " 1'"" """' '"'''''' «'■ '■^«"'"s -'' -"'--^
varan iV"*"^ "'"' " '"T"''' ^^ '^ '" "'« «^"^ '"«'«»««' -'^ the
warrant. If necessary, may be backed as aforesaid. -32-33 F, c. 30,
6S. If, on the appearance of the person so summoned, either in
PROCEDURE ACT. gg^
obedience to the summons or by virtue of th^ «,« * .
be examined upon oath or ^ZJZ warrant, he refuses to
refuses to take^uch oath or Ir 1'" ''"?"'"« '^'^ P^^'»-es, or
or affirmation, refuslttnreft:':;:^:^ '^'^" T ^ «^^^
cerning the premises, without giving a'; ju 111".'"' 'V"" ^^"'
any justice then present and fl,».. i ^ ^^T ^*°"«e '^.r such re/usai,
rant (L 4) comn^^t^r ;:^:vz::^^tT''" -^y ^y --'
other place of confinement fJV.-^ ^^ common gaol or
Fr^^o'^ 80 refusin. thenTs ft . "■'"^"*' ^'^*«'*^» ^here the
L not exceed^^t" ;f ;:, rh?;^ :h' '' ^'"^"^^"^^ ^- -^
be examined and S answer CcernincTM '"^^"^i-'e consents to
s. 28. concernmg the premise8.-32-33 F., c. 30,
64. If, from the absence of witne-^fles or f.^.
cause, it becomes necessary orljvTsXe tl 'r.7'"''"''^'°""^'«
further examination of the witneLl f "'' examination or
whom the accused appears oTlThl I '"^""''' '^'' J"«^'^^ ^'-^^
(M,) from time to time, remand' k^ '"^'^' '""^'' ^^ ^^'« ^'^r^^"*
gaol in the territorial iWironfofvlfT'" T"''' '' ^''^ ^— «
for such time as he deems reasotn?"'*' -''^'"^ ^« ^'^^" ««'*"?,
at any one time.-32.33r' c 30, 7 It. " ''''''^'"-^ '''^^'' ^^^^'' ^^^ «
iu''\wnra^
custody ti.e accused person the'n roll ",'"'" P"^''" '" ^^ose
-med by the justice^n tLt ^el alf to L .?' ''"'^''^ ^^ P^^«°"
hi« custody, and to bring him befl: H ^ '' ^'""'^'^ P^^««« ^^
as shall be there actin" a L? '■'"' ^'^ ^"''J' "^''er justice
exa„,i„ation.-32-33 K,°;. 30, i 42. "'''^''''"^ ''' '''"''""'"^ "^«
be'^l^;;::^;^:^:;:;::.-^^^ ---d person to be brought
at any time before the eWiorrf "r '''"' '^^^^
has been ren^anded, anXgao r o/offi ''7'"'' ^""'^ P^^"
is shall duly obey such ordef.-32-33 K.TsO J^J" '"'''^' '" ^*'^"
reS ^::ir hfr i:t^r: ^ ^r '- ^-^^^^^^ ^---^ ^'-
when, such person has appeared or Ik ' ^ ""' J"^^''^^' before
upon his entermg intoTr^oVn ^l^^^^^^^^
8uretie8,in the discretion of ti.^^r * ' ^'' ^'^'' O"* without
eS. If .b. aocusad pe„„„ ,„,, „„. ,„,„„,^ ^^^^ ^^ ^^^ ^.^^
i; '
V-l i '■
688
PROCEDURE ACT.
and place mentioned in the recognizance, vhe said jufitice, or any other
justice who ia tiien and there present, having certified (M 4) upon tlie
back of the recognizance the non-appearance of such accused person,
may transmit the recognizance to the clerk of the court where the
accused person is to be tried, or other proper officer appointed by law,
to be proceeded upon in like manner as other recognizances ; and
Buch certificate shall he prima facie evidence of the non-appearance
of the accused person. — 32-33 V., c. 30, s. 45.
69. Whenever any person appears oris brought before any justice
charged with any indictable offence, whether committed in Canada,
or upon the high seas, or on land beyond the sea, and whether such
person appears voluntarily upon summons or has leen apprehended,
with or without warrant, or is in custody for the same or any other
offence, such justice, before he commits such accused person to prison
for trial or before he admits him to bail, shall, in the presence of the
accused per*^ on (who shall be at liberty to put questions to any wiines's
produced against him), take the statements (N) on oath or affirmation
of those who kriow the facts and circumstances of the case, and shall
reduce the sama to writing ; and such depositions shall be read over
to and signed respectively by the witnessef so examined, and shall be
signed also by the justice taking the same; and the justice shall,
befi.-'" uny witness is examined, administer to such witness the usual
oath or affirmation. — 32-33 V., c. 30, ss, 29 and 30, part.
70. After the examinations of all the witnesses for the prosecnt-on
have been completed, the justice or one of the justices, by or before
whom the examinations have been completed, shall, without requir-
ing the attendance of the witnesses, read or cause to be read to the
accuseil, the depositions taken against hiiu, and shall say to hini the.se
words, or words to the like effect : " Having heard the evidence, do
" you wish to say anyti\ing in answer to the charge ? You are not
" obliged to say anything unless you desire to do so, bat whatever you
" say will be taken 'own in writing, and may be given in evidence
'• againfi; you at your trial ; " and whatever the prisoner then says in
answer thereto shall be taken down in writing (O) and read over to
him, and shall bo signed by the justice, and kept with the depositions
of the witnesses, and shall be transmitted with them, as hereinafter
mentioned.— 32-311 F., c, 30, a. 31.
71. The justice shall, before the accused makes any statement,
state 10 him and give him clearly to understand that he has notin'ng
to hope from any promise of favor, and nothing to fear from any
PROCEDURE ACT. ggg
Bays may he given in evidence a^Iis'- ''"' ^'''"'^^" ^e then
standing .„ch promise or threat.-32-33'r "^^n '" *''*' "^'"''^b"
7^. Nothing herein contained shall n.
giving in evidence any ad mis "on or J T "* *"^ prosecutor from
n.ade at any tin,e by t^.e p raon "con ll "?' "' ^'^'^^ «'«^--nt,
would be a<lmi..iblLseSceaSt,"'^^^^^^^ "^'«'' ^^^ ^-^
73. When al, the evident oZ ' '' ''•' ^^ ''' ^^ '''
against the accused has beenheaH --"T P"'' «^tlie prosecution
it is not sufficient to put tl,e accused UDonV"f '^ I' '"' °P''"'°" ^'^^^
offence, such justice shall fortiwiU oTr th '^Z '"^ '''^''''^^'^
to be discharged as to the inforTrtion^l^^^ T"-'"' '' '" '^''^^y'
the opinion of such justice the eviden- - ""^"'''"^ ' ^"^ '^'"
upon his trial for an indictable oflVnce ahf f"* '" P"' ''^^ ^°°"«ed
a strong presun.ption of guiit afCld hT° 'f'"'^ "'' ""''"'^^'^
accused fur trial withoutbail or fT ' J" '' '"" '" ^'^"'"'^ "^«
is accused is a misdemeanor ret.Wi?' 7''! 'f^'^ '»- Pe-on
to bail, as hereinafter provided L In 'r''' "^'"'^ '^'' ^"'^»«ed
evidence given is such'as toraiLTjo^^^^ "-^ '^'^"^' -^'' "-
ti-jn.^tice shall, by his warran P) c::^.?' "" ?'^'""' ^''-
.- gaol for the territorial di is L ^ :Lch blT' J'^ '" ^'^'"■
committed, or ,n the case of an indictable ni' ^ "' '"' '"^^ ^
high seas or on land beyond the sea to H '^^'"^^ ^^'"""■"^d on the
torial duision within which .' 'h^l^ce 11^"'"'; ^'"' '' "'^ ^-^'-
safelv kept until delivered in due c rsV r Z"'"'^*'''""' '° ^« ^h^^^
c.se.ofmisden,eanorU.eju til vll' :r^ P^^^^-ed, that iu
tnaln.,v,atanytimebetCetl ; :;:;;;;rr ^"^ ^-"-^ ^or
which the accused is to be tried a^lmktw ^^ '^! ^'.f "S «f 'he court at
said, or may certify on the back of fl '" "'^""^^ »^o^«-
amount of bail to be required, in wh .1 1 ''''''^''■^ ""^ con.mittal the
tomtorial division „,ay\dmi uch nel T T^ '^''''' '''' ^''^ ««"^e
any time before such Lt day o t .e tt n: ^r^ '" ""^^ ""°^^"^' ^^
32-33 F., c. 30, *. 66. "° ""^ "'« ^'^^''t aforesaid—
-"ed to prison or adnuf.^d to bTi t le Hed'"' T "' ^^ ^^-■
require and .;.,U' be entitled to have from tie offil' ^'''''" "^"^
the custody <,>r ^ c .ame, cooies of thT "''.''.^<'''' ">' P^^-^o" having
hee„conuni^'.d^..•bail^ rZL,'^^^ ^^^hich he ha^
-ne. not exe.ed.ng the ra^e o^r It LTw^'^ "" ^^^ '""^
dred words.-32-3? F., c. 30, s. 58 °^ °"® ^"»"
UU
690
PROCEDURE ACT.
1 1
''M§'l,
RECOGNIZANCES TO PROSECUTE OR GIVE EVIDENCE.
75. Any justice before whom any witness is examined, may bind
by recognizance (Q), the prosecutor and every such witnet-s (oxcent
married women and infants, who shall find security for their appear-
ance, if the justice sees fit) to appear at the next court of competent
criminal jurisdiction at which the accused is to be tried, then and there
to prosecute, or prosecute and give evidence, or to give evidence as
theort.'emay be, against the person accused, which recognizance
ehiiU particularly specify the place of residence and the addition or
occupation of each person entering into the same— 32-33 K.,c 30
*. 36. '
76. The recognizance, being duly acknowledged by the person
entering into the same, shall be subscribed by the justice before whom
the same is acknowledged, and a notice (Q 2) thereof, signed by the
Baid justice, shall, at the same time, be given to the person bound
thereby.— 32-33 V., c. 30, s. 37.
77. The several recognizances so taken, together with the written
information, if any, the deposition, the statement of the accused and
the recognizance of bail, if any, shall be delivered by the justice, or
he shall cause the same to be delivered to the proper otiicerof the
court in vrhich the trial is to be had, before or at the opening of tlie
court on the first day of the sitting thereof, or at such other time as
the judge, justice or person who is to preside at such court, or at the
trial, orders ana appoints. — 32-33 V., c 30, s. 38.
78. If any witness refuses to enter into iwognizance, the justice
by lus warrant (R), may commit him to the common gaol for the
territorial division in which the person accused is to be tried, tliere to
be imprisoned and safely kept until after the trial of such' accused
person, unless in the meantime such witness duly enters Into a
recognizance before a justice for the territorial division in which such
gaol is situate.— 32-33 V., c. 30, s. 39.
79. If afterwards, lor want of sufficient evidence in that belialf, or
other cauHe, the justice before whom the aocuned person has been
brought does not commit him or hold him to bail for the offence
charged, buch justice, or any other justice for the same territorial
division, by his order (R 2) in that behalf, may order and direct the
keeper of tin ^aol where the witness is in custody to disciiarge him
from the same and such keeper shall thereupon forthwith discharge
him accordingly.— 32-33 V., c. 30 s. 40.
PROCEDURE ACT. ggj
auyof .heolftnoe, foS/ hat i. !„'°''*''°'''?" "^ """'■ J"»««'.
keeping a die6rder 7ho«se or T ""'^'"''' ^P'"^' " ^""''""« ''«"^^'
co,np\i„t,andt,Jir;er ;^^^^^ -d charge or
if any, to the proper officer i„°r*"f' '"*^"'^'"**'«»*»J depositions,
would have done ircaae he 1-d .o ^^"/VT"" "' ^""'^ J"«''««
tried for such offen " . f/T ^^ P^^" "•^-"^eJ to be
See post, remarka under sec. 140.
BAIL.
81. When any person appears before any justice charged with a
felony, or suspicion of felonv othpp tlmn t-„„ ^ ^"^rgeu wun a
with deatl,, or felony underTe 'y^'XTr^: ' """i*",""
OJF,n.e, a,ain>UHe Queen'. .u^Jit'TJllll^ZZ: Zl^"::
n the opinion of .uch jnstice, .ufiScient to put the a^uS o„ I u
trial, outdce, no, fur„,,h ,uoh . .,„,„g pre.„„,pUo„^rg'i|. aa o
jus,ic..,h.n..,r.thr,.^o;"/„ ,:'fs rs'-ro/n"'''""'';.''™
t'LTdrrf'^r '" '■'" '^~ 'ullir a'nTpUo^or
..pc,ea .0 have been coilit'teri^ a^Lt S^^irr jr,^:
Wore whom the accu.ed appears may admit to hj\. T ^Z^r
romaid, and auch j«tice may, in hia diacretion, requi^ „„" m
toj«*ly upon oath a, to their .umciency, which ;.th the .1^1.1^0
may admi,„«er , and m default of ,ueh person procuring uSt
.1, .uchjuatice may commit him to prison, theL to be\ ?„„«
delivered according to la«..-32-33 V., c. 30, a. 62. ^
ill ' !
692
PROCEDURE ACT.
1
9
82. In all cases of felony or suspicion of felony, other than treason
or felony punishable with death, or felony under tlie " Ad respecting
Treason and other Offences against the Queen's authoritj/," and in
all cases of miademeanor, where the accused has been finally com-
mitted as lierein providetl, any judge of any superior or county court
having juiisdiction in the district or county within the limits of
which tlie accused is confined, may, in his discretion, on application
made to him for that purpose, order the accused to be admitted to
bail on entering into recognizance with sufficient sureties before two
justices, in such amount as the judge directs, and thereupon the
justices shall issue a warrant of deliverance (S 3) aa hereinafter
provided, and shall attach thereto tlie order of the judge directing the
admitting of the accused to bail.— 32-33 V., c. 30, s. 63.
83. No judge of a county court or justices shall admit any person
to bail accused of treason or felony punishable with death, or felony
under the ''Act respecting Treason and other Offences against the
Queen's authority," nor shall any such person be admitted to bail
except by order of a superior court of criminal jurisdiction for the
Province in which the accused stands committed, or of one of the
judges thereof, or in the Province of Quebec, by order of ajud^^eof
the Court of Queen's Bench or Superior Court; and nothing herein
contained shall prevent such courts or judges admitting any person
accused of felony or misdemeanor to bail when they think it rmU s^
to do.-32-33 v., c. 30, s. 54. ^
84. Whenever any justice or justices admit to bail any person
who 18 then in any prison charged with the off-ence for which he is so
admitted to bail, such justice or justices shall send to or cause to be
lodged with the keeper of such prison, a warrant of deliverance (S 3)
under his or their hands and seals, requiring the said keeper to dis
charge the person so admitted to bail if he is detained for no other
offence, and upon such warrant of deliverance being delivered to or
lodged with such keeper, he shall forthwith obey the same.-32-33
v., c. 30, s. 56.
DELIVERY OF ACCUSED TO PRISON,
86. The constable or any of the constables, or other person to
whom any warrant of commitment authorized by this or any other
act or law is directed, shall convey the accused person therein named
or described to the goal or other prison mentioned in such warrant
and there deliver him, together with the warrant, to the keeper of
such gaol or prison, who shall thereupon give the constable or other
PKOCEDUEE ACT.
693
person delivering? tlie prieo
prisoner netting forth the a'ate "and^'lTr^^' f ^ ''^' <'^> '"^^ ^^e
ael.vered into hie cu«tody.--32-33 F. c 3o! ^7 ^"'''"" ^'''"
PROCEEDINGS WHERE OFFENDER t« L
-ICT IN WHICH JZT.ll'Z'lT""''' '' ' ''''
8«. Whenever a person ann ''''''''''^•
the territorial division, wherein suol. T r ^""""^^'^ l>^fore a j„«tice in
with an offence alleged to 1 a ^ £ oi '. 'T J"""^^''^^-". charged
division in Canada wherein such -"sti^r^^^^^"''^"*" ""^ '«>•-• torial
justice shall examine such Cunesl rind "' ""' J"'-''^diction. such
proof of the charge as may be nroZeTt 7""T '"^'' ''''^'^'^ ia
diction; and if, iu ,;, opinion"^ t^.^.e^''^^^ him within his juria-
sufficient proof of the charge mad „ 'T"^ ^"'^ '''^^^'^^^ are
.hall thereupon com.nit 2 to t In "" ''°^"^">' ''-J-tice
division where the offence is a '^ ^0!"^ ""'' ''' "'^ ^^'^'^--'-'^I
admit h,m to bail as herein beforfmenHl,/''"""'"^''' «•• ^'^^U
prosecutor (if he has appeare^re S T, T^' ''"^ ^^^ ^'-
recognizance as hereinbefore n.entioned -.32-33 F '^r'""'''''' ^^
87. If the testimony and eviden. " '' ' *" ^^■
justice, sufficient to put the accuseTuooT),"'!'-'';;'^" °P'"''«'> ^''f'^e
wh,ch he is charged, the justice Slbv 1 "•' '" ^^" ^'^^"«^^ -^^
witness or witnesses whom he has e^a' in ''?^:^«"«« ^'ind over the
inbefore mentioned ; and such Ctice sTa '. "" '"'""^ ^« ^--
accuse.! to be taken before any ju ice i ! i. ^' T"'''' ^^^' ^^''^'- ^^-^
where the offence is alleged to have bV" • '' *'"''"'"'^' '^''^'^''^n
same time, deliver up L in,'"att^ 7:^"'"'^^"' ^'^^
depositions and recognizances so taken h . '^"^P^*'"^' «"^J also the
has the execution of U.e last mentt'/i: " '' t'- constable who
ered .0 the justice before whom J e X, T"""'' '' ^' ^^ '>''" -^eliv-
tl.ewa,rant, and the deposS and re ' "''"^''^' '" ^^'^^'■«"'^« ^o
to be taken in the case, and sl^be treSt"" Tr" ^'"" ^'^ ^-"^^
as .f they had been taken by or beLrtl ' ,17 '"''"''""' P"^P«^'^«
f'all, together with the depositionfa„d J "-"^'«"'^d justice, and
a«t„,entioned justice in the mat^of tJeT^""'"''' *"^^" ^'^ ^he
•f transmitted to the clerk of the court nrT^' ^°^''"'' '^^ "^«»^«^d
the accused ought to be tried in thpl ^'''^' ^^'=^'- ^^''^^e
.n;nt,oned, if the accused L ommi ej Sr'tr"'; '"' '' '''' *''"« '--"
admitted to bail.-32-33 V., c^O I 47 "' "^'^ '^« ^^'^'^''g^. or is
88. If the accused is takpn i.„p x, .
iii'i
PROCEDURE ACT.
Bon or persons to whom the said warrant is directed, and who liaa
convoyed the accused before such last mentiotu,. justice, shall, upou
producini? the accused beforo such justice and delivciing him into the
custody of such person as the said justice directs or names in tliat
bfhalf, be entitled to lye paid his coats, and expennos of conveyin" the
accused bett)re such justice.— 32-33 V., c. 30, ». 48. "
89. Upon the constable delivering to the justice the warrant
information.if any, depositions and recognizances, and provmg on oath
or affirmation, tlie handwriting of the justice who has subscriM the
same, such justice, before whom the accused is produced, shall there-
upon furnish such constable with a receipt ur certificate (U 2) of In's
having received from him the body of the accused, together with tJie
warrant, information, if any, depositions and recognizances, and of his
having proved to him, upon atli or affirmation, the handwriting of
the justice who issued the wat rant— 32-33 F., c. 30, a. 49.
90. The said constable, on producing such receipt or certilicate to
the proper officer for paying such charges, shall be entitled to be paid
all l-.is reasonable charges, costs and expenses of conveying the aociiPed
into such other territorial division, and returning from the same— 32-
33 v., c. 30, ». 60.
91. If such justice does not commit the accused for trial, or hold
him to bail, tlie recognizances taken before the first mentioned mstice
shal! be void.-32-33 V., c. 30, *. 51. '
DUTIES OF CORONERS AND JUSTFCES.
92. Every coroner, upon any inquisition taken before him, where-
by any person is indicted for manslaughter or murder, or as an acces-
eory to murder before the fact, shall, in presence of the accuced, if he
can be apprehended, reduce to writing the evidence given to the jury
before him, or as much thereof as is material, giving the accused full
opportunity of cross-examination j and the coroner shall have author-
ity to bind by recognizance all such persons as know or declare any-
thing material touching the manslaughter or murder, or the offence of
being accessory to murder, to appear at the next court of oyer and
terminer, or gaol delivery, or other court or term or sitting of a court
at which the trial is to be, then and there to prosecute or give evidence
against the person charged ; and every such coroner shall certify and
subscribe the evidence and all the recognizances, and also the inqui-
sition taken before him, and shall deliver the same to the proper
officer of the court at the time and in the manner specified in the
seventy-seventh section of this Act.— 32-33 V., c. 30, a. 60.
-SJijy^J
PROCEDURE ACT.
»3. WI.en any person has beer, co.nmitted for trial by any in. ice
coroner, the pn«oner, hi« counsel, attorney or agent Jay no the
comnufng juet,ce or coroner, that he will. L .Jn as coun«e ^nU
heanl, move bHur. a superior court of the Province in whicn such
person .tauds comnutte,!, or one of the judges thereof, or the judgeo
the ounty courr ,f a .. intended to apply to ...ch judge, under tU
^frZ;l , '^:^^.'"'^ .•^'^'^''-"-'"tothejLtice orco er
for l.e temtona dms.on whore such prisoner is confined to admit
sue priHoaer to ba.l.-whereupon such comn.itting justice urcoro^e
shall as aoo„ aH may be, transmit .to the office of the clerk ofthe
cro ,. or the ch.ef clerk of chc court, or the clerk of the county court
or other proper officer, an the case n.ay be, close under his hand and
seal, a cert.flod copy of all informations, examinations and other evt
, ence., touc ung the oifen^ wherewith the prisoner has been cha ged
together with a copy of ..he warrant of commitment and inqueT if
any such here ,s and the packet containing the same Tall 'iL
hande the pe, ,>p,yi„g therefor, for transmission, and t haU
be certified on the out.,de thereof to contain the informa ion concern
mg the case m queHtion.-32-33 V., e. 30, s. 61. ^oncern-
94. Upon such r^pplicatio;, to any such court or judge, as in the
next preceding section mentioned, the .an>e order con erning the p fs!
oner bemg baded or continue in custody shall be ma<le as 7Z
prisoner was brought up upon a habeas corpus .-32-3?, V., c. 30 . 62
95. If any justice or coroner neglects or offends in anything con-
rary to the true mtent and meaning of ar.y of the provisions of the
three sections next preceding, the court to whose officer any such
exan..natioD, mformat.on, evidence, bailment, recognizance or inau
s,t.on ought to have been delivered, shall, upo'n examinat on and p ^^f
of the offence, m a summary manner, impose such fine upon eve^y
such justice or coron,. as the court thinks fit.-32-33 V c 30 .63
ai:::n;Tr?::. zt °"'" "'"°"" ^^-^ ^^^
REMOVAL OF PRISONERS.
97. Tlie Governor in Council or the Lieutenant Governor in
Council of any Province may. if. fron, the; insecurity or unfitness of
any gaol of any county or district for the safe custody of prison" or
for any other cause, he deen.s it expedientso to do. order any^'son
Charged w.th treason or felony confined in such gaol or fo'r whose
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Sciences
Corpomtion
23 WEST MAIN STREET
WEBSTER, NY. 14580
'716) 872-4503
696
PROCEDURE ACT.
arreet a warrant has been issued, to be ren,oved to any otl.er gaol of
any other county or district in the same Province to J„I /
auch order, there to be detained until dischar^d in d» cole n' "
or removed for the purpose of trial to the gaofof the county Tr d L S
.nwhzch the trial is to take place; and a copy of such orl
clerk nAvf f'^ "' ^ n "^"^'"'^ ^^'^^ ^"^""^'l ^^ Canada, ;rth
clerk Of the Execut.ve Council, or by any person acting as su h cl rk
of the Pnvy Council or Executive Council, shall be sufficierau '
r.ty to the sheriffs and gaolers of the counties or distr^ctrrTsnecti ^
named >n such order to deliver over and to receive th Z7TZ
98. The Governor in Council or a Lieutenant Governor in Council
may m any such order, d.rect the sheriff in whose custody the pT,
to be removed then is, to convey the said person to the gao of he
county or district in which he is to be confined, and t L el erfff o
gaoler of such county or district to receive the aid p son a J to
det^m Inm until he is discharged in due course of law '^ Ts ;e oved
for the purpose Of trial to any other county or districti-Sl F T74
s. z. 47 r., c. 44, 3s. 1 and 2, parts. '
99. If a true bill for treason or felony, is afterwards returned by
any grand jury of the county or district from which any such pel„
I removed, aga.nst any such person, the court into whic]> suc^t u
b.ll IS returned may make an order for the removal of such per^^
from he gaol m which he is (hen confined, to the gaol of the co nty'
or district in which such court is sitting, for the purpose of hi b '
tried m such county or district.-Sl V., c. 74, .. 3. 47 F., c 44 72°
part. > ' r - , (-. tt, 6. i,
rr^^^^'J^^ Gojernor in Council or a Lieutenant Governor in Council
may make an order as hereinbefore provided in respect of any person
under sentence of imprisonment or under sentence or deathf a' d n
the latter case, the sheriff to whose gaol the prisoner is removed shall
obey any direction given by the said order or by any subsequi t e
in council for the return of such prisoner to the custody of' tlsherS
by whom the sentence is to be executed._47 V., e. 44, s. 3.
per^son isTonl^" indictment is found against any person and such
Of slh .r f .'" *"^ P^"'^^"*!*'-/ or gaol within the jurisdiction
.lrZtr% r"""' °' ^'""'"'^"^ent or under sentence for
eome other offence, the court may, by order in writing, direct the
warden of the penitentiary or the keeper o; such gaol,t bring up
other gaol of
be named in
ourse of law,
Jty or district
order, certi-
fy ada, or the
18 8uch clerk
icient autho-
respectively
body of any
> c. 44, ss. 1
Tin Council
y the person
gaol of the
e sheriff or
son, and to
' is removed
tl v., c. 74,
returned by
uch person
i such true
ich person,
the county
'f his being
c. 44, s. 2,
PROCEDURE ACT. cnn
, o97
such person to be arraiVno/i « t. •
habeas corpus, and the wal„"orl '"'^'■°*"'«nt. without a writ of
32-33 v., c. 29, ,. 14. ^'" "' ^'^P"' «hali obey such order.-
CHANGE QF VENUE.
he tnal of any person charged Jh M ""^^ '^^ justice that
be held in son.e district,coufL oVlce "h '',,'"'«^^'"^«"or should
offence is supposed to Lve bee„ coZi^lr '"" ""' ^'^ "'"^^ '^^^
triable, the court before which suohT' ""■ ''""''^ °^^^™'«« be
»-y. at any term or sitting ttreo, and '""''J' ^'^^^' "^ ^' -'^'«ted
«it in such court may, at any othl H "^^f ^' ^^" ™'S'^' ^^'^'^ or
presentation of a bilf of >nd^cte„t H' ' L" ^'^^^ "^ "''^^^ ^^^
proceeded with in some he dSt on" ^"^ "" '"'' «^'^" ^e
^ame Province, named by the court "r ^^^ ^^ ^ ""' ^'"'' ''''^"■" "^«
order shall be made upon such condor ^' '" '"'^ "'•^^'- ' t>"t such
additional expense .her?brcaused "1 Z *' '' ^''^ P"^'"^"* ^^ «»^
ju%e thinks proper to prescribe '°'"''^' "^ ^^« ««»rt or
or^r thiiri^t i?i7hasr:^ ^t -^^^ ^^ ^^^ --
and all inquisitions, inforn^aUons dTlv '^ '''" ''''''''''''
other documents whatsoever, rZLtT"'' ''^^^gni-ances and
«l.all be transmitted by the officer hav^ntr'''"""" '^'^^'' 1'™.
proper officr of the court at the 1'? ^^^^^^^^^ thereof to the
and all proceedings in the case shil 7 r!'^' '"*' ^' '^ be had,
.nenced, shall be continuL n sucl JLtrlf ' "l '' P"^'^"«'^ -»>
case had arisen or the offence hacfhpt' '°""*^ ""' P'^«^' «« ''f tbe
3. The order of the court or rfM ?'"'"'««'' "'erein :
«1-11 be a sufficient Ta;riu::ii!t'""'r "'"•'"■--«->
ehenffs. gaolers and peace Officers ft/r '"' '"^^'^••'*^' *° ^J'
reception of the prisoner in clTr' . '''"^'^^' '^'^Po^'^J and
order; and the shyrj^/app'oi fa"/ "'' *'^ *"'"^ «^ -^^
convey the prisoner to the Srin ,?'* f-'^Pr^'" any constable to
-hich the trial is ordered to bf hid '^"'"'*' '^""'^ ^ P^^^^ ^
any person for any offence sha i !„ 7 *^ ^'^' ""'^^"^^^ «« of
y thi. section, is'^ade, b; oSa o'Tn "''' Tf f'^'' '' P^-'^^l
by such recognizance as to all Sl« M • '^ ^^ "'' P''''^^' bound
$98
PROCEDURE ACT,
in like manner as if such recognizance had been originally entered
into for the doing of such things at such last mentioned place; pro-
vided that notice in writing shall be given either personally or by
leaving the same at the place of residence of the persons bound by
such recognizance, as therein described, to appear before the court
at the place where such trial is ordered to be had.— 32-3'i V c n
8. 11. ' ' '
By this section the court or judge has a discretionary
power of a wide extent : " Whenever it appears to the
satisfaction of the couH or judge," says the statute, and
when the court or judge declares that it so appears, the
matter quoad hoc is at an end, the venue is changed and
the trial must take place in the district, county or place
desiejnated in the order.
The words of the statute require that the court or judge
be satisfied that the change of venue is expedient to the
ends of justice. Mr. Justice Sanborn, In ex parte Brydges,
18 L. C. J. 141, said that " the common law discourages
change of venue, and it is only to be granted with caution
and upon strong grounds."
The following cases decided in England may be usefully
noticed here ;
Where there was a prospect of a fair trial the court refused
to change the venue, though the witnesses resided in ano-
ther county.— ij. V. Dunn, 11 Jur. 287.
The court will not permit the venue in an indictment to
be changed for any other cause than the inability to obtain
a fair trial in the original jurisdiction. — R. v. Patent Eureka
and Sanitary Manure Company, IS L. T., N. S. 365.
The court has no power to change the venue in a crimi-
nal case, nor wiU they order a suggestion to be entered
on the roll lo change the place of trial in an information
for libel, on the ground of inconvenience and difficulty in
securing the attendance of the defendant's witnessses.—
B. V. Cavendish, 2 Cox^ 176.
PROCEDURE ACT.
699
The court wiU remove an indictment for a misdemeanor
from one county to another, if there is reasonable cause to
apprehend or suspect that justice will not be impartiaUy
administered in the former county.— i2. v. Hunt 3B <&A
444 ; 2 Chit. 130. " '
The court has a discretionary power of ordering a sug.
gestion to be entered on the record of an indictment for
jlony, removed thither by certiorari, for the purpose of
awarding the jury process into a foreign county ; but this
power will not be exercised unless it is absolutely neces-
sary for the purpose of securing an impartial trial —M v
Eolden, b B.<&; A. 347.
In the case of R. v. Harris et al, 3 Burr., 1330, the
private prosecutors, in their affidavit on an application
made by them for a change of the venue, went no further
than to swear ge.. .ally '< that they verily believed that
there could not be a fair and impartial trial had by a jury
of the City of Gloucester, » without giving any particular
reasons or grounds for entertaining such a belief. The case
to be tried was an information against the defendants, as
aldermen of Gloucester, for a misdemeanor in refusing to
admit several persons to their freedom of the city, who
demanded their admission, and were entitled to it and
m consequence, to vote at the then approaching election of
members of Parliament for that city, and whom the defen-
dants did admit after the election was over ; but would
not admit them tiU after the election, and thereby deprived
them of their right of voting at it. The prosecutors had
moved for this rule, on a supposition " that the citizens of
the city could not but be under an influence or prejudice
m this matter." The application was refused.
"There must be a clear and solid foundation for it"
said Lord Mansfield ; '« now, in the present case, this gene-
700
PROCEDURE ACT.
ral swearing to apprehension and belief only is not a suiii.
cient ground for entering such a suggestion, especially as
it is sworn on the other side that there is a list returned
up, consisting of above six hundred persons duly qualiHed
to serve. Surely a person may espouse the interest of one or
another candidate at an election, without thinking himself
obliged to justify, or being even inclined to defend, the
improper behavior of the friends or agents of such candi-
date."
" The place of trial, " said Mr. Justice iJenison, " ought
not to be altered from that which is settled and established
by the common law, unless there shall^ appear a clear and
plain reason for it, which cannot be sa'id to be the present
case."
" Here is no fact suggested," said Mr. Justice Foster,
" to warrant the conclusion that there cannot be a fair and
impartial trial had by a jury of the City of Gloucester. It
is a conclusion without premises. The reason given, or
rather the supposition, would hold as well, in all cases
of riots at elections. This is no question relating to the
interest of the voLers 5 it is only whether the defendants.
the persons particularly charged with this misdemeanor,'
have personally acted corruptly or not."
" There was no rule better established," said Mr. Jus-
tice Wilmot, " than tha*" all causes shall be tried in the
county, and by the neig..(iorbood of the place where the
fact is committed ; and, therefore, that rule ought never to
be infringed, unless it plainly appears that a fair and im-
partial trial cannot be had in that county; It does
not follow that because a man voted on one side or on the
ether he would therefore perjure himself to favor that
party when sworn upon a jury. God forbid ! The freemen
of this corporation are not at all interested in the personal
PROCEDURE ACT. "^qi
conduct of these men upon tWs occaaion ; the same rea-
.ornng wonld just a, well include all cases of election
It may be remarked on this case : (1.) That the appU-
««on for a change of the venue was made by the pros!cu^
ton; there ,s no doubt that much stronger reasons must
t2 f,7 r '"•'^PP'-"™ - -Oe by the defen.
dant . (2.) That the case dates from 1762, aad that in some
of the more recent cases on this point, the court seems t^
have granted such an application, on the part of the AefZ
to, wth less reluctance. This is easily explainedHt
must have been an unhearf of thing, at first, to change the
venue, at common law, at the time where the jurors fhem-
l^lvcs were the witnesses, and the only witnesses; where
they vere selected for each case because they we e sup-
posed to know the facts. Where no other witnesses no
evidence whatev-^ was offered to them, it may weli Z
presumed that . „nange in the venue was aot allowabk
under any circumstances. The rule must then invariably
inflexibly, have been that the venue should always be laM
m the county where the offence was committed. 6ie strict.
ue.3 of the rule can have been relaxed only by degrees
upport of It had ceased to exist, by the changes w ich
have given us the present system of jury trial it is not
;sr Buf ' '"^ 'ir '"" ^^■^^^'"^ '» " ^ -' "-
possible. But, insensibly, a change is perceptible in the
ecisions, and now, under our statute, there's no doub
a every time, for any reason whatever, « is „pj^^
totheeruhofjmti^ that a change in the venue, upon Tnv
nott here ' '" ^"''""^ °" '"^ ^■'-«- -^ ^
■ III
703
PROCEDURE ACT.
The court removed an indictment from the Central
Criminal Court, and changed the venue from London to
Westminster, where it was a prosecution instituted by the
Corporation of London for a conspiracy in procuring false
votes to be given at an election to the office of bridge-
master. — R. v. Simpson, 5 Jur. 462.
A case in the Province of Quebec, gave rise to a full
discussion on this section of the Procedure Act. R, v.
Brydges, 18 L. G.J. 141.
In this case, a coroner's jury in the district of Quebec
returned a verdict of manslaughter against the defendant,
a resident of Montreal The coroner issued his warrant
upon which the defendant was arrested ; he gave bail, and
then, in Montreal, before Mr. Justice Badgley, a judge of
the Court of Queen's Bench, made application in chambers
for a change in the venue ; the only affidavit, in support
of the application, was the defendant's, who swore that he
could not have a fair trial in the district of Quebec. The
crown was served with a notice of the application, and
resisted it ; Mr. Justice Badgley, however, granted it, and
ordered that the trial should take place in Montreal,
deciding (1) that, under the statute, a judge of the Court
of Queen's Bench, in chambers in Montreal, may order the
change of the venue from Quebec to Montreal, of the trial
of a person charged with the commission of an offence in
the Quebec district, and (2) that this order may be given
immediately after the arrest of the prisoner.
On this last "point, there is no room for doubt. By the
statute, as soon as a person is charged with an offence,
the application can be made, and there is no doubt, that in
Brydges' case, such an application could even have been
made before the issuing of the warrant of arrest against
him. The finding by the coroner's inquisition of man-
HIOOEDURE ACT.
703
slaughter against him was the cMrae Fr„«. .1
this finding was delivered by t^' iufv « . '"°™'"
dmrged with manslaughter. In fl tS, H ^"'' '"^
vaient to a true biU by'a gn.nd uj l^' ^f Sif
remauung .ntact, to stand his trial, whether or n t « tn
was later submitted to the grand iurv „,i,.,i, .f
j.,ry found « a true bill," orT"„ j bm ' fn .'' ^™''
..dthe authorities oi J ^i. f : ^^ I^^ITV "^ ;
Upon the other point decided, in this case, by Mr J„s
t,« Badgley, as to the jurisdiction he had to (^nt I"
order ..,ui,.d. the,, seemed at first to bemore do^t „'
the question was set at rest hv ihc ,-, a ^^^
given in the case by R,I; ^'^ 'SZTrrt
entirely concurred with Mr. Justice BadglTy'in his^nW
on the question, as follows • 6 ^J' i" nis ruling
Eamsay, J.-.. Before entering on the merits of fi,
the court, sitting i„ this district ht *' ^'"'^
dangerous a character thatt^XXr^- t
mconvemence of the law we have nothing to do f^I.
ought we to express any opinion as to whetWfh.' f
on which the learned judge' who gavl tit Xt^ha
the venue were slight or not, pr^^ded h ul]^^^
The whole question rests on the interpi^tatio,^ T^Zk
704
PROCEDURE ACT.
or sit in the Court of Quoeu'a Bench. If so, he had
jurisdiction.
" But we are told that the statute evidently intended
that the judge giving the order should be actually sittin<»
in the district in which the offence is alleged to have taken
place. There is no trace of any such intention in the
statute and there is no rule of interpretation of statutes so
well established as this, that where the words of a statute
are clear and sufficient they must be taken as they stand.
If courts take upon themselves, under the pretext of inter-'
preting the law, to diminish or extend the clearly expressed
scope of a statute, they are usurping the powers of the
legislature, and assuming a responsibility which in no way
devolves on them. In the particular case before us it
does not appear clear to my mind that it was the intention
of the legislature to limit the power to change the venue
to a judge sitting in the district where the offence was
said to ba committed. In the first place, our statute goes
far beyond the old law, which, I believe, is still unchanged
in England. Not only is the power given here to a judge
in chambers to change the venue, but he may do so before
the bill of indictment is either laid or found. The object
was to protect a man from being even put to trial by
a prejudiced grand jury, and this could only be effectually
done by giving the power to any judge who could hold or
sit in the court to change the venue, for it will be observed
that in 1869, when the act was passed, there were
many districts in this Province in which there was no
resident judge, and in Ontario the judges of the supeiior
courts all live in Toronto, and, so far as I know, in
each of the other Provinces, they live in the capital
town. Unless, then, there was to be a particular provi-
sion for the Province of Quebec the law had to be drawn
Hi
PROCEDURE ACT. ,-^-
object of dividing the Province nto di,t' i TT ""
nience in bringing suf^ but the juriSon fl """"^
i^noral. Thi, haa never been 'd bt^'":;; r™/' ''
tlie practice both in Endanrl „nH ,1. "' ''"«■'
the place where the pit Vat^l TZ '° ''"' '"
«»»»«, where the takinsr of un ""^ ''"'° "f
t..c crown, this coutS .^'^XtZ' r"'^' '^
who was in jail here Tht ,•= ' ^ ""* P"'™'"'
hutthepowet oftr-oo." :' ,rr c" ":'/:""''■
could not be questioned. We I e Wd Th\ ' ' """'''
venicnce might arise if thie statute he ,^''"" "'""'•
This is .ally „o valid objectilto t kw" V"'""-
facultative acts which may not be 1,ZT ' "" °°
«*er. A d,scretionary ^Z i'tZICl:!^;-
*rred to are n tpS, ,t; '^rr "^ inconvenience,
iu Montreal was bailT I! '^ T '"'' P"'™'''' ""'^ted
have the venue'chtS toThettl? wh^ 'K"'""' '"
and where he actnally was ^ , *" '''''^'^
Justice Badgley could U; ^tld Zt "' /"•
for an abusive use of the statu J r! Precedent
i« saying this I do not t «; to the uT' "" ""'^"'"'^
Mency of the affidavit on which the h""^ "' "'^"''-
wl-ich is not inany wa;Ur:L tt^irthf"'
i"Mction are:Hv;rd:.i:;: rCu dtiirf 7 °^
"served it for the decision of aU he > ger b:f !. !
"ow.ug us to reserve cases is unfortnnaSy as It ,
nan-ow as the stiifnfa k^f """i-ei/ as much too
the statute before us appears to Mr. Ritchie to
vv
706
PROCEDURE ACT.
I
I Ml"
be too wide in ita phraseology. Wo can only reserve after
conviction, and irregular reservations for the oi)ini()n of
the judges have no practically good results. We must,
therefore, give the judgment to the best of our ability, and
I must say for my own part that I cannot see any dilli.
cuUy in the matter. The words of the statute are per-
fectly unambiguous, and there is no reason to say that
they lead to any absurd conclusion."
Sanborn, J.—" First, as to the jurisdiction. It is
objected that the venue was improperly changed, and that
th's inquisitson ought to be before the court at Quebec.
If we are not 'legally' possessed of the inquisition, of
course we cannot entertain these motions to quash. This
has been fully and exhaustively treated by the President
of the court. It is merely for us to enquire: Had Mr.
Justice Badgley the power to order the trial to take place
here instead of in the district of Quebec; where the ncci-
dent occurred ? The 11 section of the Criminal Procedure
Act undoubtedly gives that power. He was a judae,
entitled to sit at the court where the party was sent for
trial. The jurisdiction of any of the judges of the Queen's
Bench is not local for any district, but extends to all parts
of the Province."
The words " he was a judge, entitled to sit at the court
uhere the party was sent for trial,'^ in Mr. Justice San-
bom's remarks appear not supported by the statute. It is
the court at which the party charged with a crime was at
first liable to be indicted, or any judge who might hold or
sit in that court, who have jurisdiction in the matter, not
the court where the party is sent for trial nor a judge
who can hold and sit in such last mentioned court. Of
course, in Brydges' case this distinction could not be made,
9& Mr. Justice Badgley, who gave the order to change the
ition. It is
fed, and that
/ at Quebec,
iquisition, of
[uash. This
^le President
•e : Had Mr.
take i)hicG
jre the acci-
il Procedure
as a judge,
vas sent for
E" the Queen's
1 to all parts
at the court
ustice San-
Ltute. It is
Time was at
ight hold or
matter, not
nor a judge
court Of
lOt be made,
• change the
PROCEDUltE ACT.
venue, could sit in the court nf n / ''^^
-1. and in Montreal as w ut.'^ir'j^ ? "^" " ^ ^^^-^
t'-t such an application is „aU to ^ ^^ ""''' "'^'^^^^
or s.t „. a court of quarter 2^<J" ^"^'^° ^^° «^" hold
cl-god '..oris lM.Tl.:TnD;' "''"'^ ^''^ I-'^r
'--youses vvhoroapartyaccl dt /;'"? ""''^ -'^ -^
ed before the court of q.^l' Lr' ? '^ '' '" "'^^'•«^-
J»"f 'c 'on only to the court o q ^ ' "'"''''' ^'^««
the locality where the trial should Tl T""' '^^""^ ^^^
nary course of law. or to a t ^^''''' '" "'« ordi-
--•t or judge of another La '^ 'iTl "'' "^' ^« «
q«iart..r sessions for Montreal for ; ' . '^' ^''^^'^ «^ ^^e
ca^e from the district of ol'r^'^'^^^' ^ouid not, in a
Pl- in Montreal, tho.^httuldT^ ''^ ''''' '^ '^^^
3it at the court v^here the pj^l " Yf'' '''''^'^ '^ .
See in .. Sproule, 12 S CrZ ^'' ^'^'''^^
of vt.nue. ''• ^' ^- ^^0, questions as to change
Change of venue allowprl .,>.«
he "^ convinced of »stro„?;!"lv. 'I- """J^'^'^.
W Cox, 579. ''' ''°'^' S^.-See Ji. y. WaUer,
fffW, that 32-33 V c •'q , 11 j
o*r for the change 0? the" to If °7r'/"'''°™««»y
«ny case where .uch change would ! ?t " P™™-^' ^^
™l«- the former practice 1,11/, T '*''" 8™'"cd
■Ihe power so aMnfarJ ; , ' ^^ ^^^*
.pp-i«tl„ in:/jr:'h?;:^;;r«->y. but, Where
««'illicie„t ground that person, L.'t "'"""^'^ '' «" be
^-pinions n.ight be~ Zttr!'' "" '""^•"'^
ae pnsoner could not challen»7 ff "^ r*"'' """^ "l"""
708
.FROCEDUKE ACT.
IKDICTMENTS.
103. It shall not be he necessary that any indictment or any record
or document nlative to any criminal case be written on parchment.
—32-33 K, c. 29, s. 13.
By the interpretaLion clause, sec. 2, ante, the yvovdind'ui-
Tnent includes infotination, presentment, and inquisition
as well as pleas, etc.
By the 4 Geo. 2, c. 26, and 6 Geo. 2, c. 14, " al^ indict,
xnents, informations, inquisitions and presentments shall
be in English, and be written in a common legible hand,
and not court hand, on pain of £50 to him that shall sue
in three months."
They should be engrossed on plain parchment without
^ stamp. No part of the indictment must contain any
abbreviation, or express any number or date by fiaures
but those as well as every other term used, must be express-
ed in words at length, except where a fac-sitr.ile of an in-
8t\ .ment is set out. — 3 riurn 35 ; 1 Chitty, 175,
r.rmerly, like all other proceedings, they were in Latin
and though Lord Hale, Vol. I. p. 1<58, thinks this language
more appropriate, as not exposed to so many changes and
alterations, in modern times, "it was thought to be of very
greater use and importance," says his annotator Emlyn,
" that thty should be in a language capable of being known
and understood by the parties concerned, whose lives and
liberties were to be affected thereby."
Before confederation in Ontario &nd Quebec, the indict-
ment in cases of high treason only had to be written on
parchment. — C. S. C, c. 99, s. 20.
By section 133 of the Bdiish Forth America Act,
the French language may be used in any of the courts
of Quebec, and in any court established under thtit act.
i04. It shall -iot be necesaary to state any venue in tiie body of
any indictment ; and the district, county or place named in the
HlOOBDniffl ACT.
"■•fgin tliereoC shali h. .k * ^O*
<" 'he mdi«,„e,„, b« ffVT/"" •"""'»«'. "toted in a .
Th,s 3«otion is totea from sL oT'T^ f'' ''■' "■ ^'^ '• '«
the Imperial stotutea 7„„ ?' ""■'^ V- <=• 100 of
;;™-e„tio„ .^ ,;:,/P » Which Graves s.^',
tie statement of vea„e uponlh «* '?^°"™ "' P'^-^'ng
«e3 upon which it wae p°a 'd T .'^'""^^'^ c^im.!
%■ Gen.. H. T., 4 Wm. IV Bv,^ •"""' P'°"'eedinga by
e«ept where some local descriDtfol f '""''"'• '" '^ ^«.
need be stated in the body 7 th° r^'*"'^' "'' P'^o^
lar^ny, robbery, fo^g^r ^ "' «>« '"dictraent; thus i„
-d be stated i„ the" My^^lT ^'"- ■"• -""^
cases, befo,. ffie passing of ttfa alf „ "'''"'«'^'"- In such
toed necessary to stote somen *'."«'' '' *^ c^si-
--terial whether the ZjZ " "'5*"' '' "^ ^^t^
-y other parish in the Tunty rM'"'' """^ ^ »'
burglary, sacrilege, stealing in a ,;„ ?," "" "'^'^ '"»<'. in
place whc.^ the oifence Z^'^^^J ''™^«. etc., the
tl.e indictment. It was nrcesrv 'f """'' "« '"^'"d ia
-'; and to prove the atatem 7^",, T " '*f'»^*«
*H subject ever to the poZr !f , F* '^<' ^^ '' ^3
tot section... (Sec. Hs'Zt?' '""^'"''»-' 8-- by the
■ine venue, that i=i f^I
-t«prefe„ed,iss:t^'din7hrL" *"? ">^ '■"»■•«'-
«." or ..J/«c;fe„. to-wit.. b„r2'V'"' "^«*-
'te most usual. I„ the bodv'of tl. J'"'' ""'^"^ "
venue used to be laid, that U Th f ?"""""' " '^^''^
''^'ed to have arisen in the ^'u'tvi '■ T" '" ^^^-^
ws preferred." ., fi„„_ 21 ^ "'"* ""' i-dietment
-a'!;: s'lr^i^ttir:-:" ' r -'-"^ '--<»
«"■« should come from '^ '™ J^^ wl-> are to try the
"-'-a. should have "ome <^rTe T' '"^ ^"^- ™
"■om the town, hamlet, or
■
710
PROCEDURE ACT.
parish, or from the manor, castle, or forest, or other known
place out of a town, where the offence was committed, and
for this reason, besides the county, or the city, borough
or other part of the county to which the jurisdiction of the
court is limited, it was formerly necessary to allege tliat
every material act mentioned in the indictment was com-
mitted in such a place But now by stat. 14-15
v., c. 100 s. 23," it shall not be necessary to state any
venue in the body of any indictment, but the county, city
or other jurisdiction named in the margin thereof, shall be
taken to be venue for all the facts stated in the body of
such indictment. Provided that in cases where local
description is or hereafter shall be required, such local
description shall be given in the body of the indictment."
— Archbold, 49.
The cases in which a local description is still necessary
in the body of the indictment, are :
Burglary ; 2 Rus8, 47.— House-breaking ; R v. Bullock,
1 Moo. C. C. 324, note a. Stealing in a dwellinw.house>
under sections 45 and 46 of the Larceny Act; M. v.
Kapper, 1 Moo. C. G. 44. Being found by night armed,
with intent to break into a dwelling-house, under sec. 43
of the Larceny Act, and all the offences under sec. 35 to
43 of the Larceny Act ; R. v. Jarrald, L. & C. 301.
Kiotously demolishing churches, houses, machinery, etc.
or injuring them, under sections 9-10 of c. 147 ; R. v.
Richards, 1 M. & Rob. 177. Maliciously firing a dwellinff-
house, perhaps an out-house, and probably all offences
under sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 13 and 14 of the
act as to malicious injuries to property, but not the offences
under sees. 18, 19, 20, 21, of the same act; R. y. Wood-
ward, 1 Moo. C. C. 323. Forcible entry ; Archbold, 50.
Nuisances to highways ; R. v. Steventon, 1 G. & K. 55.
tier known
litted, and
borough,
iion of the
liege tliat
was com-
.at. 14-15,
state any
^nty, city,
f, shall be
»e body of
bere local
such local
lictment."
711
PKOCEDtJfiE ACT.
Malicious injuries to sea-banks milM ' ^^^
Pe^y; Taylor Ev., l V^',Tt^'' T^^^^^^^^
highway; in which even a It' ^^' ^'^^ repairing a
necessary, as the situation of tt "'.'"'"'' description is
etc Indecent exposure La ptjr'/''^^" ^he parish,
11 Oox, 659. * P'***^° place ; R, y. ^^^^.^^'
B«t in most cases of want of i , .
necessary or of variance between tt ^r"^««^ ^^^^e
ationsinthe indictment CecL^f '"' '^^ «%-
-Pt-, etc.. the courts woXno^^UoV'^^^' ''''' ^-
m. "^- -" ^e said, With T:;^::.:7Tt;:;
T^Zr^f^T^^ advance an,
the law recognizes between Iop.I . ^«'''««tion. which
On an indictment, .ndee^ L . '^''"^ ^^^«-«-
repairing a highway, it ^^ bf" ' ?"'^^ ^^ «ot
- ^t will be necessL, to ;rove hTtr^^ '^ ^"^»^^'
epair ,s within the parish charged '^'' '"' °^
burglar should be entitled to morf « ^"* ^^^ ^
respecting the house he is charTw T^^^ information
thanthehighwayrobbe an 2 '""° ^"^^^«^'
his offence is s Jed to hive be „ " '' ^'^ ^^^^ ^^-e
ble to say ; either full inTorml L'T^J,^^' '' '' ^^P--'-
cases or in none." '"^^^"^^tion should be given in all
In offences not of local nature it i, 7 ,
necessary to allege in the bodv If 1 • '^'^^' "«^ "^w
the offence was committed and t 'n ^"'^^^^"^^^ -here
England, not to do it A^ i /. ^'' ^'"^^'«« "«-. in
instance, runs thus: " ^"^^^^^nent for larceny, for
Suffolk, to wit • The T
"Pon their oath preaent "hTj s^" ^^ *' «"««»
June, in the year of our lorf on: f.' °" ^ ""' ''^^ »'
^ one thousaud eight hundred
1 lif/
I
!i' 'x-.
I , I '
Mi
712
PBOCBDUBE ACT,
and sixty, three pairs of shoes of the goods aud chattels of
J. N"., feloniously did steal, take and carry away, against
the peace of Our Lady the Queen, her crown and dignity •
Archhold, 313. In 11 Cox, 101, 526, 593, and 12 Cox,
23, 393 and 456, may be seen indictments, so without a
special venue.
The laying of the information and subsequent proceedinoa
are the commencement of the prosecution. So, if a statute
enacts that an offence must be prosecuted wthin a certain
time, the information must be within that time, but not
necessarily, the indictment. ~i2. v. Austin, 1 C. S K
621; R. V. Kerr, 26 U. 0. C. P. 214. and cases' there
cited.
105. The abolition of the benefit of clergy shall not prevent the
joinder in any icdicttnent of any counts which might have been
joined but for such abolition.— .32-33 F., c. 29, s. 16.
This is the 7 & 8 Geo. IV., c. 28, s. 6, of the Imperial
Statutes.
Lord Hale calls the benefit of clergy, " a kind of relaxa-
tion of the severity of the judgment of the law," and adds that
" by the ancient privilege of the clergy and by the confirm-
ation and special concession of the statute of 25 Edw. III.
c. 4 (A. D. 1351), the benefit of clergy was to be allowed
in all treasons and felonies touching other persons than
the King himself and his royal Majesty" 1 Eale, 517.
The two following extracts will give, succinctly, what
was the law of " benefit of clergy ; "
" Benejit of clergy (privilegium clericale), an ar-est
of judgment in criminal cases. The origin of it was this :
Princes and States, anciently converted to Christianity,
granted to the clergy very bountiful privileges audexerap-'
tions, and particularly an immunity of their persons in
criminal proceedings before secular judges. The clergy after-
I
PROCEDURE ACT.
713^
wards inCTeasing their wealth, number and power, claimed
this benefit as an indefeasible right, which had been merely
matter of royal favor, founding their principal argument
upon this text of scripture, ' Touch not mine anointed, and
do my prophets no harm. ' They obtained great enlarge-
ments of this privilege, extending it not only to persons
in holy orders, but also to all who had any kind of sub-
ordinate ministration in the church, and even to laymen if
they could read, applying it to civil as weU as criminal
causes. In criminal proceedings the prisoner was first
arraigned, and then he might have claimed his benefit of
clergy by way of declinatory plea, or after conviction, by
way of arrest of judgment. He was then, if a layman, burnt
with a hot iron in the brawn of his left thumb, in order to
show that he had been admitted to this privilege, which
wao not allowed twice to a layman. If a clerk he was handed
over to the ecclesiastical court, and after the solemn farce
of a mock trial, he was usually acquitted, and was made a
new and an innocent man. These exemptions at length
grew so burthensome and scandalous, that the legislature
from time to time, interfered, until the 7-8 Geo IV '
c. 58, s. 6, abolished benefit of clergy : » Wharton' Law
Lexicon, verb. " benefit of clergy. "
" ^^' h^//«^ become a title of curiosity only, the stat.
7-8 Geo IV.. c. 28. having enacted by sec. 6, that
benefit of clergy with respect to persons convicted of felony
s al be abohshed ; and by sec. 7, that no person convicted
of felony shaU suffer death, unless for some felony which
was excluded from the benefit of clergy before or on the
nrst day of the then session of Parliament fFeb 8 1827)
or which should be made punishable with death by some
statute passed after that day.''
Thi^' '|enefit of clergy constituted in former times so
remarkaLe a feature in criminal law, and a general ao-
!:■ f
714
PBOCEDURE ACT.
quamtance with its nature is still so important for the
Illustration of the books, that it may be desirable to sub-
join further notice on the subject. It originaUy consisted
in the privilege allowed to a clerk in orders, when prose
cuted in the temporal court, of being discharged from
thence and handed over to the court christian, in order to
make a canonical purgation, that is to clear himself on his
own oath, and that of other persons as his compurgator^
Vide Reeves's Hist. Eng. L. vol. 2, 'pp. 114, 134 : 25 Edw'
III. St. 3, 4; a privilege founded, as it is said, upon the
text of scripture, " Touch not mine anointed, and do my
prophets no harm. " In England this was extended by
degrees to all who could read, and so were capable of becom
mg clerks : Reeves ubi supra et vol. 4, p. 156. But by 4
Hen. yil, c. 13, it was provided, that laymen allowed
their clergy should be burned in the hand, and should claim
It only once ; and as to the clergy, it became the practice
m cases of heinous and notorious guilt, to hand them over
to the ordinary, absque purgatione fadenda, the effect of
which was, that they were imprisoned for life : 4 Black
stone, 369. Afterwards, by ISEliz. c. 7. the delivering over
to the ordinaiy was abolished altogether, but imprisonment
was authorized in addition to burning in the hand. By 5
Anne, c. 6, the benefit of clergy was allowed to those enti-
tied to ask it, without reference to their ability to read By
4 Geo. I, c. 11 ; 6 Geo. I., c. 23, and 19 Geo. II.. c. 74
the punishment of transportation was authorized in certain
cases, m lieu of burning in the hand ; and by the act last
mentioned the court might impose, instead of burning in
the hand, a pecuniary fine, or (except in manslaughter)order
the offender to be whipped. As to the nature of the of!eaces
to which the benefit of clergy applied, it had no application
except m capital felonies, and from the more atrocious of
ant for the
ible to sub-
y consisted
^hen prose-
arged from
, in order to
jself on his
wpurgators.
4 : 25 Edw.
•> upon the
md do my
^tended by
e of becom-
. But by 4
en allowed
lould claim
le practice
them over
te effect of
: 4 Black-
leering over
Drisonment
and. By 5
those enti-
) read. By
TI., c. 74
I in certain
e act last
•urning in
hter)order
le offences
pplication
ocious of
PHOCEDURE ACT. y--
hw stood atthatin^ If th^'lr;-" ^?' '• «' ^« ""e
gyable felonies without Rn^/f^'^S^"* '" "^r-
and as often as i^ oClrTri^'"' f "''''' ^'^'-'-'>
aforfeiture of tdrt^^''':^^:'"^'^ P^-''^ being
with 1.0. and peereVast IZZT^fr'
fo.thefi.toffen„^.t^r"wordtfal"dr«^ "'"'
the capital punishment only ZL w^ ''^ '''""»
hand, -toulytoforfeitu^'ilstft:/" "'^°"'^'
hand, whipping, fl„e, imprisonment „. T ""!""' *"
tn.nsportati„ninlieuofcapitaUo?w , T,"'" °^'
By the genemi repeal act of SfiQ .~ f"^'P- ^"-
:r.t,='- -"""i: -i'-rc
thirteenth day of February 1S« T *"'"^'' "" ">«
from and aftef the aXMI:^ ■°3^-- «-«»
convicted of felony shall suffer death T^I . l"°, P"^"
felony which was e^icInH.i 7 , ' "'^^ " '"' *"'sorae
the ,Jw in foj „Tht ttt "" *« "-^fi' of e'ew by
trial is had when the Tneflt „f T"""' '" "''■* *«
therein, or which has l^e„ „ ^ "^ ^"^ "bo'^hed
.on,e act passed": fh^ rnt"""™"^"^ ^"^ "-* "^
It is now repealed by 49 V., c. 4 D.
JOINDER OF OFFENCES.
^^Ji.y. Jones, 2 Camp. 131 Lord Pn.^K
•■Inpointoflaw,the/is„o'oSl?t:rmt:::^;
i
m
III
716
PROCEDURE ACT.
tried on one indictment for several offences of the same
sort. It is usual, in felonies, for the judge, in his diacre-
twn, to call upon the counsel for the prosecution to select
one felony, and to confine themselves to that ; but thi^
practice has never been extended to misdemeanors "
In R. V. Benfield, 2 Butt. 980, an information ' aaainsfc
five for riot and libel had been filed, on which th°ee of
t)iem were acquitted of the whole charge, and Benfield and
Saunders found guilty of the libel. It was objected that
several distinct defendants charged with several and dis-
tinct offences cannot be joined together in the same indict-
ment or information, because the offence of one is not the
offence of the other. But it was determined that several
offenpes may be joined in one and the same indictment or
information, if the offence wholly arise from sucli a joint
act as is criminal in itself, without any regard to any par-
ticular default of the defendant which is peculiar to him-
self ; U6, for instance, it may be joint for keeping a gamin<T
house, or for singing together a libellous song, but not for
exercising a trade without having served an apprentice-
ship, because each trader's guilt must arise from a defect
peculiar to himself, and 2 Hawkins, 140, was said to be
clear and express in this distinction.
In Young's case, 1 Leach, 511, BuUer, J., said : " In mis-
demeanors the case in Burrowes, R, v. Benfield, 2 Butt.
980, shews that it is no objection to an indictment that it
contains several charges. The case of felonies admits of
a different consideration; but even in .^uch cases, it is no
objection in this stage of the prosecution (writ of error.)
On the face of an indictment every count imports to be for
a different offence, and is charged as at different times;
and it does not appear on the record whether the offences'
are or are not distinct. But, if it appear before the defen-
fiTI
PROCEDURE ACT.
rit
Judge. .0 Uh the tdlclrt t" T^rfr 1 '"'
to do 80 in the other R„f h ^ , ^'^^ ""^ ^^^^^n
tho length of a yerdiTki, n . t . "'"' '"'' «™» "^
meat. If it Cr^t w„l ''T " '''■™'' »'j»''8-
which contain, a::,;! cou:".."""'"™ '"'^ '"*'--'
In the case of R. v. Heywood, X <fe O 4^. ,i.- j . .
in Young's case waa folWed byiil^^nf"' ''"°°
reserved, and it was held that LhlTv " "^
ia point of la. to an indi ^^ n Th^ t : ^r f^
oner w.th several different telonies in difftrelf l^n 'T
as matter of practice, a prisoner n„„hf . "ooote, yet,
be charged with d.ffe ent"r„m ff" '' T ''"''"'• *"
indictment; as, for instanota 11 frr T""'; "'f"
burglary in another, or a birgirvt h . ^''^' ""' '
one count, and a " distinct "btriCintir' ''^^- '"
another, or a larceny „f the gZZi A n o'"" "'''• '"
a ■• distinct •• larceny of the gli of B » ^'-*""'°'' """*
in another, becanse such a c^a If " , *"'™' """«
lated to embarrass the prisoneTrn I dT "^^ " ""™-
it has been done, and a'n ^I^^ tt7u> tt' t?
mcnt on that ground before the prisone^tL MIVo" th
m are charged, the jndge in L dwjj ^J ^^
718
PROCEDURE ACT.
the indictment, or put the prosecutor to elect. But it 13
no objection in aiTest of judgment, or on a writ of eiTur.
Thus, where an indictment ciiarged the prisoner in three
several counts with three several felonies in sending three
separate threatening letters, Bylos, J., compelled the pro-
secutor to elect upon which count he would proceed ij.
y. Ward, 10 Cox, 42. And since different judgments are
required, it seems that the joinder of a count for a felony
with another for a misdemeanor, would be holden to be
bad upon demurrer, or after a general verdict, upon motion
in arrest of judgment.— 1 StarUe, Or. PL 43. But now,
see sec. 143 of the Procedure Act, post.
So in E, V. Ferguson, Dears. 427, where the prisoner,
haying been indicted for a felony and a misdemeanor in
two different counts of one indictment, and found guilty,
not generally, but of the felony only, the prisoner moved
in arrest of judgment, against the misjoinder of counts, the
judge reserved the decision, and Lord Campbell, C. J,
delivering the judgment of the court of crown cases
reserved, said : •' There is really no difficulty in the world
in this case, and I must say that I regret that the learned
recorder, for whom I have a great respect, should have
thought it necessary to reserve it. The question is, whe-
ther the indictment was bad on account of an alleged mis-
joinder of counts. The prisoner was convicted on the count
for felony only, and it is the same thing as if he had been
convicted upon an indictment containing that single count;
and it is allowed that there was abundant evidence to war-
rant that conviction. There is not the smallest pretence
for the objection, that the indictment also contained a count
for misdemeanor, and it does not admit of any argument."
So in R, V, Holman, L. & G. 177, where the prisoner
was charged in an indictment by one count for embezzle-
SJf
.^lLI
PBOCEDURE ACT.
nient and the othpr f«^ i '^^^
'*« -« for :tl^:^Z^ I " '«"-• ^* ^A. close of
"■*<=tmeot wa, bad toT^^{J T '"'J»«W 'h"' the
ojoctio,. „a3 ft J, aUho^T ttj"*"^:,'""' """"•»
pleaded and the jup. had h . "" "" "''"<■• plea
elect on which count he wouH . ^ '"'"'"'=''"™ *<>
counsel further contended Thath.' ""' P™™*"-''
absolutely bad that the election If „ '""'""»'"" *aa 30
Tho court di^ctod the couL! T'"" ^ "' '""''""^"'le.
elect on which count h ZXtt' T ''"''''°""» '»
'eq.»st of the prisoner's eouns ZT "^'''"«- "' ">«
as above stated for the considem'tion ofT ™'"'" '^ '"■'"
cases reserved. The counsel for t """"■' ''°'' e™wn
proceed on the second counrald P'"''™"™ <'k<=ted to
pmoner was convicted, and the T T" """ '="''»' ""e
Where the aefenda;t was tSirr ""™f "
for stabbmg with intent to mZT u ''™"'' «">»''.
and disable, and with intent t^d' "^^ """" '<• "-"im
harm, it was holden that th. ^°"" grievous bodUv
elect upon which coun'h tXr"""';" "»' ■«"■«■ 'o
.he judgment is by the atafrt "CnTb °"'"'«'^"»''-«
count capital, and on the nthJ? ' ^'"« ™ ">" firat
«™^.,-8 a ..P. X72; i:'S ^r^«--n.-iJ. V.
cerrtt^wrrn'-rr-^^^-'-r-
Vic, 0. 80, s. n, a pnW w? ;;''■ "' ^ ^'"- ^^ and 1
«■«' feloniously' staTbrgwUhitT' 1" ""-"^-"-t
.econd,t«n.ain,; third, t'o d fi«" f. T"'!'' "> ■"»*';
grievous bodily harm : to which I ' i^"'"'' *" ^^ ^"'^
common assault. The case was 1? !? " ~""' ''<"• »
'earned judge was awa«, of tWs an ". «'"'°"' '^'''''^ ^e
"Wing it; but as it wa, ratheV » '' ''"' ""^ """"ght of
"""'' " '™°>'s one, he left the
I'^l
720
PHOCEDURE ACT,
case, without noticing the last count, to the jury, who
(properly aa the learned judge thought upon tlio facts)
convicted the prisoner; and the counsel for the prosecution
then, being aware of the objection of misjoinder, requested
that the verdict might be taken on the last count for felony,
which was done accordingly ; and this was held right by
all the judges.— ii v. Jo7ie8, 2 Moo. C. C. 94.
Here in Canada, now, there is no objection to a count
for a common assault, in an indictment fo any of the
felonies, where, under sec. 191 of our Prucedire Act
the jury may find a verdict for the assaull. But, of course,'
such a count is not necessary, as the jury may, in that
case, convict of the misdemeanor, without its being alleged
in the indictment. See 1 Bishop's Cr. Proc. 446.
If in any case not falling under sec. 191 of the Proce-
dure Act, a count for a felony is joined with a count for a
misdemeanor, on motion to quash, or demurrer, it seems
that the indictment should be quashed or the prosecutor
ordered to proceed on one of the counts only. If the defen-
dant does not take the objection and allows the trial to
proceed, the conviction will be legal, if a verdict is taken
distinctly on one of the counts. If a verdict is given of
guilty generally, without specifying on which of the
counts, the conviction will be held bad on motion in arrest
of judgment, or in error, notwithstanding sec. 143 of the
Procedure Act, though this clause is much more extensive
than the corresponding English clause, 14-15 V., c. 100
8. 25. For how couk^ :ho court know what sentence to
give if it is not clear wbut nf'e.;ce the j.Ty have found the
prisoner guilty of. L.c 1 J^awae, Cr. PI. 43 ; R. v. Jones,
2 Moo. G. 0. 94 ; M. v. Ferguson, Dears. 427.
Though in law, the right to charge different felonies in
one indictment cannot be denied, yet, in practice, the
;;l-jr
PROCKDDRR ACT.
court, ill sucha cftse, will always ohli^ f»,
eloot and p..ceed o„ one of ilZ:^J; ~''' '^
assume m evidonoe, „r in which it ZT '"">'
law, and it ia sai„ i„ ^Xt' rT^AUr' ", ""'■" "'
o.». the .„e feC;i:,?Cerw:;:r'r™^ -^^
m order to meet the facts of the case fj V ? °°''"''
there be « doubt whether the gtT stc! J' „r,."'r"'^'' "
which a burglary „r larceny wl colm .Id ' .k""" '°
or house of A. or B thnv L?i ''°'"""'*^. ^ «>e goods
the goods or house of A^^inartt '" °" "'"'■" "'
house of B. See M. v C "» nT/;!"^ "'
^nerally on the 'll itdttmeVlt^T ''^'"'"'
X).».52. But, inasmuch as the woMfelf;;.- if "T""' '
ooteiTOm (as .misdemeanor- is JtZ, '""''«'"»«
5. 781, 795), i:' the verdict and jud™™ -^^ \'' *
be against the defendant for • th« f^I > '" ""''' '*''^'
be bad unlessthevenltrndud^enlb ""'■'""
each count of the indictment" ^\„ *""»•"«<! by
'^0. 814; see 1 ^^^t Jr^C '^ *' " * ^•
eo«:tstT.e::nti^7nTas?' " --'
i^g™.ts upon each be ^^^.X:^ ff^ ^^
V. Benjield, 2 ^itrr 980- A v ^^"^' *^' ^^^ see ijl.
WW
! 1^
i
il
722
PROCEDUBB ACT.
f I
several different persons were charged in different counts
with offences of the same nature, the court held that it
was no ground for a demurrer, though it might be for an
application to the discretion of the court to quash the in-
dictment. — R. V. Kingston, 8 East, 41. Where two
defendants were indicted for a conspiracy and a libel, and
at the close of the case for the prosecution, there was evi-
dence against both as to the conspiracy, but against one
only as to the libel, the judge then put the prosecutor to
elect which charge he would proceed upon. — M. v. Mur-
phy, 8 C. ^ P. 297. On an indictment for conspiracy to
defraud by making false lists of goods destroyed by fire
one set of counts related to a fire in June, 1864, and
another to a fire in November, 1864. The prosecution
was compelled to elect which charge of conspiracy should
be first tried, and to confine the evidence wholly to that
in the first instance. — R. v. Barry, 4 F.S F. 389. And
on an indictment against the manager and secretary of a
joint-stock bank, containing many counts, some charging
that the defendants concurred in publishing false state-
ments of the affairs of the bank, and others that they con-
spired together to do so, the prosecutors were put to elect
on which set of counts they would rely. — R. v. Burch, 4
F. & F. 407. If, where there are several counts charaina
different offences in law, the judgment be entered up
generally upon all, that the defendant 'for his said
offences ' be adjudged, etc., and it appears that any count
was bad in law, the judgment will be reversed in error.—
O'Gonnell y. R, 11 0. <S; F. 155. To prevent this it is
now usual, in cases of misdemeanor, to pronounce and enter
up the same judgment separately on each count of the
indictment." — Archbold, 72.
PBOOBDDIIE ACT. »„.
mere a prisoner i, indicted for a felonv if •
necessary to prefer a seoarate hill f' '' " "■"
attempt to „^mmit it; and wW h".*?T' "" '"' "■'
demeanor, it is not nece^arvt.. ""^""^^ ^"^ « »"»-
attempt to comn,it i~ «s un„ """'T "'°"°' ^°' «"
felony or misdemeanor, if „Ton the T ?' °""^'" '°' «■«
the defendant merely attemntj, '' " ^^^^' ">»'
but did not complete it tW*^ '" °""""'' ">« oifence,
offence chargeCtd Mm^^i^f t?";: '"^ "' *«
cedure Act, sec. 183. "^ ^ ^ "" »««»P'— Pro-
So, upon an indictment for robberv th. •
now be found euiltv nf .„ . ""'^'Y- the prisoner may
192 Procedu^Tcf So uZ'""-""' '"'»'" '" '""-S
».ent, if the offence nlTLt"'"''"''''''^'""'-^'-
larceny, the Jury maj a^it te ';:^, '^^^^ *» ^ "
-y, if upon the~;crt rocrf "^■'''"'^^-
embezdement, the jury may acquit of t.? I^''""' '° ^
the party guilty of emLzlleT-S ml'^'T'' """
So, if upon an indictment for ob aint ^''""' *"'•
false pretences, the offenc^ u^nt " 1"°"? " ^"""^ ''^
teeny, the defendant, notwffllr *""' """o "«
oi the false pretences Z-lgept^-'-^y "^ """""'^'l
«!»oanindicLentfo Jcen, Jr ™ ^"'^ ^<'' «
donee turn out to be an obSng byl Xe' Tt" ""' "'"
jary may acquit of the larceny and and the H ??""*'' *^
of obtaining by false pi^ten J^Zl 'I'^g' tf ''T ^""'^
So, upon an indictmenr for anv m/,! P^oedure Act.
Siven in evidence amounf^rLr ThrS 'T" '"'^
not on that account bo acquitted 'f,. ?"' "■*"
*-^e court thin, at ^Sargl^L^nTtTX
"'^*''''n:';
724
PROCEDURE ACT.
the defendant to be indicted for the felony. — S. 184 Pro-
cedure Act. But this provision applies only where the
facts given in evidence prove the act charged in the in-
dictment ; " while they include such misdemeciuor,'' says
the statute. And if a felony is proved, but no misde-
meanor, the provision does not apply.
The commencement of a second or subsequent count
is in form thus: "And the jurors aforesaid, upon their
eath aforesaid, do further present that," etc., proceed-
ing to state the offence. The absence of the words
" upon their oath aforesaid " would be a fatal and not
amendable defect, but as to the particular count only.—
See Archbold, 73.
Counts for different misdemeanors on which the judg-
ment is of the same nature may be joined in the same
indictment, and, on such counts judgment may, and indeed
ought to be, separately entered. — R. v. Orton, 14 Cox, 436
and 546 ; M. v. Bradlatigh. 15 Cox, 217.
Counts for different misdemeanors of the same class may
be joined in the same indictment. — R. v. Abrahams, 24
Jj, C/« i/. oJiOi,
Although, in general, it is not pennitted to include two
different felonies under different counts of an indictment,
yet the same offence may be charged in different ways in
different counts of the same indictment. Thus, in the firat
count, the accused may be charged with having stolen
wood belonging to A., and in another with having stolen
wood belonging to B. — R. v. Falkner, 7 R. L. 544.
JOINDER OF DEFENDANTS — SEPARATE TRIALS.
Two parties accused of the same offence on the same
indictment are not entitled as of right to a separate defence
PROCEDURE ACT. ' hor
not. ^'^ ^ S'^*"^^ * separate trial or
In i2. V. G^mveZ (Montreal n n njr .
subornation of perjury ,IZIT,' 5 i ^''*''^' l^^^') ^r
^ J -y^ ^^P^^afce trials refnqpH * »«^ r
trial granted. Where ivpr.l ^^^' ^^^ ^^b«^«' separate
the judge Will not al loH"^^^^^^^^^^
that the depositions ^^^Zl^ Z 'It^'
made by one prisonpr imr^i; *• confessions
lega. evident di,o.„3ad agaios't ^ Xp ^ ^T » T
Blackburn, 6 Coa;, 333. prisoner — Ji. v.
The prosecution has always a HaT^f f^
See on the question 1 a^«,, c. Z. 535 1 S.'^;,
n 36; 1 Bishop, Cr.Proc. 463 1018 • 1 tta . ' '
-R.y, Payne, 12 Cox 118 n- A » ^ ^^^^«^, 433.
11 fc J «'. 1^ t-oaj, 118 ; Connelly, n U n - p
115. a7i(^ remarks under sec. 214 »oa« " ^•
For conspiracy and riot, there 'can L n.
tria..-! ^A«*„, 434; k*:.":. P,";r~ "'
The Act respecting Treason is c. 146. p. 30, ante.
n
726
PROCEDURE ACT,
affidavit, deposition, bill, answer, notice, certificate or other writing, it
ehall be sufficient to set fortlj the substance of the offence charged
against the accused, and by what court or before whom the oatli
affirmation, declaration., affidavit, deposition, bill, answer, notice, cer-'
tificate or other writing was taken, made, signed or subscribed, with-
out setting forth the bill, answer, information, 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 offence was committed.— 32-33 V., c. 23, a. 9. 14.15 V
e. 100, 8. 20, Imp. ' *'
See E. V. Dunning, 11 Cox, 651, and R. v. Hare 13
Cox, 174.
108. In every indictment for subornation of perjury, or for corrupt
bargainingor contracting with any person to commit wilful and corrupt
perjury, or for inciting, causing or procuring any person unlawfully,
\yillully, falsely, fraudulently, deceitfully, maliciously or corruptly, to'
take, make, sign or subscribe any oath, affirmation, declaration, affi-
davit, deposition, bill, answer, notice, certificate or other writing', it
Shall be sufficient, whenever such perjury or other offence aforesaid
has been actually committed, to allege the offence of the person wlio
actually committed such perjury or other offence, in the manner
hereinbefore mentioned, and then to allege that the defendant unlaw-
fully, wilfully and corruptly did cause and procure the said person to
do and commit the said offence in manner and form aforesaid; 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 averrin<r
any of the matters or things hereinbefore rendered unnecessary to be
set forth or averred in the case of wilful and corrupt perjury.— 32-33
v., e. 23, s. 10. 14-15 V., c. 100, 1. 21, Imp.
109. In any indictment for murder or manslaughter, or for bein<^
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 indict-
ment for murder to charge that the accused did feloniously, wilfully,
of his malice aforethought, kill and murder the deceased,— and it shall
be sufficient in any indictment for manslaughter to charge that the
accused did feloniously kill and slay the deceased ; and it shall be
Bufficient in any indictment against any accessory to any murder or
PROCEDUKE ACT. h,^
to charge .he ^cJi^ZnlZoV: L*^'"'*'"" "^'"^- '"■' 'f™
«I00, ..6,/mp. ' P^'"""'— '2-33r.,c.20,..6. 24-25 n
such document to be or contain eSoTh 1 1, ""^""^ '' ^''^-'
title, or Of some matter affecting the title of H ' *"" ^^ ^"'"^ ^^^ "^«
of the persons having an interesrwV :^ !et P""''^""^
or equitable, i„ the real prooertv /ot i !t '*'' ''°"*'"g^"t' l^^al
mention such real propert/orCne IT ff ^'l ''"" '''•'^'' ^"^ 'o
l--/. 24-25 r., c. 96,^. 2^,17" ^^^''-'«'^f-32-33r., .21,,.16,
le^^ir r^^S:tr ^ -^-lement, ^ ^ ^-^u-
offender, against Her'lfa Sr^^^^^^^
master or employer, within the space S«,v .1*'"' '""""^iP'^'itv,
the last of such acts, may be chaSin ^ '"°"'''' ^'•°'" ^^^^ fi'"'^* o
offence relatestoany'mon^ofanfvJ^;^^^^^^^^ '^ ^J-
cient to allege the embezzlement Jfr.- TT'^''' "''"'' ^' '^^'
sition to be of money, withT^ si ^ " P^^'^-^^'^" -^ dispo-
valuable security; and\unlX C rL7 '""T'^^ «^'» -
fonofthe property, shall be su's t n^d if ^he "S '• '" '^^^
have embezzled or fraudulently apnlied or 5 . ' '' P''*^''^ ^"^
although the particular species of c^'l^atX "' "'^ ""^""*'
such amount was con.posed is not p;oved or fie T""''.'' "'""^'^
embezzled or fraudulently aoDlied or Z V ^ P"''^^*^ ^^ ^'^ve
any valuable security, o/a.TZrZtT 1 '"^ ^'^^^ «^ <^-» o^
Buch piece Of coin or valuablLCitvLlr/. ' '^''"'' ^''^^^^^^^^
that some part of the value tie eo fouTd h .""^ '' ^"" "' -^^^
delivering the same, or to some other n^ "T''''^ '" '^'' i'^^'^on
returned accordinglV.-.32rK,t2;,r73"2.!25 K,t JT! 'f 'r
See, aw^e, p. 383, under sec 59 nf ^h. t ' ' "'^'
which this clause applies. ^''''"^ ^^^' ^«
Pe- accused did the act ^^ ^^Z^Jt^,^'::^^
728
PROCEDUrȣ ACT.
alleging an intent to defraud any particular person, and without
a'leging 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
sufficient to prove that the person accused did the act charged with
an intent to defraud.— 32-33 T., c. 21, s. 93, part. 24-25 F., c. 96, s. 88
Imp.
Sill V. i2., Dears. 132, is not now law since this enact-
ment.
See sec. 77, of c. 164, p. 420, ante, as to the offence of
obtaining under false pretences. See Greaves' note under
sec. 114, post.
113. It shall not be necessary to allege, in any indictment against
any person for wrongfully and wilfully pretending or alleging that he
inclosed and sent, or caused to be inclosed and sent, in any post
letter, any money, valuable security or chattel, or to prove on the
triali that the act was done with intent to defraud.— 32-33 V., c. 21 s.
96, part.
This clause is not in the Imperial Acts. It has refer-
ence to sec. 79, p. 440, ante, of the Larceny Act.
114. In any indictment for forging, altering, uttering, offering,
disposing of or putting off any instrument whatsoever, where it is
necessary to allege an intent to defraud, it shall be sufficient to allege
that the person accused did the act with intent to defraud, without
alleging an intent to defraud any particular person ; and ou the trial
of any such offence it shall not be necessary to prove an intent to
defraud any particular person, but it shall be sufficient to prove that
the person accused d^d the act charged with au intent to defraud —
32-33 v., e. 19, *. 61. 24-25 V., e. 98, s. 44, Imp.
See, ante, c. 165, general remarks on forgery.
The words " where it is necessary to allege an intent
to defraud " were inserted to prevent its being supposed
that this clause made it necessary to allege an intent to
defraud in cases where the clause creating the offence did
not make such an intent an ingredient in the offence.—
Greaves' note.
raoCEDUBB ACT,
729
oLra"d fit \ '"""' '° '•''"'"'• '" ■■'*'='"'^"'' for
sXLnt ""'""'■ ^■"' ">' ^*"- » -PPort of
Before thU act pas.wd, it was neoesaary in these caae, t«
allege hat the defendant did the act charged wi hintn L
defmud some particular individual mentioned in the fnd c^
w> h intent to defraud the person so specified. This in most
.■.stances led to the multiplication of counts, alleiran
It" hi" .'"'f«'"!'fff^^»' persons, so as to m et S^^view
that the jury m.ght take of the evidence, and sometimel
upon the cv.dence, a difficulty ocou^d in scerta nTg X
l:z::r Serr'^r ■" '^ '''' '« *« '-' "»
oe aeirauded. (See M. v. Marcm, 2 Odt K ^Hf\. P
MsAD^Ca 319). This claus; is intf d L';btia^
Usuchd.fflc„lt,es, andit,.ndersitsufflcientto alllin tt
md.ctmeni, that the forge.7 or uttering was 00^^ or
the goods obtained, with intent to defraud, withou" Sfv-
..g any part.cular pe«on intended to be defrauded 'and ft
1, ew.se renders it unnecessary to p.ove that the defend!
ntended to defraud any particukr person. ,nd makes tsuffl-
116. In any indictment against any nerson fi.r k., •
receiving, paying or putting off. oroffeirrh ,7'"^' '""'"«'
or put off, without lawful aiftho i^y or excL I' ^ ' '''''''' P*^
coin, resembling or apparentlv^ln/lr ' ^^"''' ^^ counterfeit
current gold of silver coni^ or or . ''''""^'^ "' ^''' ''' ^"^
eame imports or was ap^a eiSy inttde T "'' ""I" '''" '^'
cient to allege that thf perso^a^c^^ e^^^^^^ 'tet" ^ -«"
put off; or did offer to buy, sell rerpjl ^' ' ''^'''^' ^^ O"*
counterfeit coin, at or for a Iwer rate' 7 ", '"\f "" ''^«« ^'
i^port, or was apparently intend!^ ^l^^^Soi^rC^r
i;
u \i
1
I
M^' >t\
1(1
< :.
730
PROCEDURE ACT.
for what rate, price or value the same was bought, sold, received,
paid or put off, or offered to be bougiit, sold, received, paid or put
off.— 32-33 v., e. 18, «. 6,part. 24-25 V., c. 99, a. 6, Imp.
See 1 Ru88. 135.
" Uuder the former enactment it was necessary to allege
in the indictment, and prove by evidence, the sum for
which the coin was bought, etc. ; R. v. Joyce, Carr. Supp,
184; B. V. Hedges, 3 C.d; P. 410; the last part of this
clause renders it unnecessary to allege the sura for which
the coin was bought, etc., and consequently whatever tlie
evidence on that point may be, there can be no variance
between it and the allegation in the indictment, and all
that need be proved is that the coin was bought, etc.,
at some lower rate or value than it imports. — Oreavea'
note.
116. It shall be sufficient in any indictment for any offence against
the "Act respecting Malicious Injuries to Property," where it is neces-
sary to allege an intent to injure or defraud, to allege that the person
accused did the act with intent to injure or defraud, as the case may
be, without alleging an intent to injure or defraud any particular per-
son, and on the trial of any such offence it shall not be necessary to
prove an intent to injure or defraud any particular person, but it sliail
be sufKcient to prove that the person accused did the act charged
with an intent to injure or defraud as the case may be. — 32-3;^ V., c.
22, s. 68. 24-26 F., c. 97, *• 60, Imp.
This clause places the law on these point. ' 'ne
position as in cases of forgery and false preten. \
112 and 114, ante.
117. In any indictment for any offence committed in or upon or
with respect to, —
(a.) Any church, chapel, or place of religious worshi^i, or anything
made of metal fixed in any square or street, or in any place dedi-
cated to public use or ornament, or in any burial-ground, —
(6.) Any highway, bridge, court-house, gaol, house of correction,
penitentiary, infirmary, asylum, or other public building,—
i*^*,..|;^
Q or upon or
PROCEDURE ACT.
731
or^^^^z::^':;.r::'::t^:^ - °^^- p-^^^ -^. -ted
Of the Provinces of Ca„ Ja or of ^^P*""' ^^ ^^"*^«' «•• «'' *"y
township, or other subSion 17.^^-"""*"" """'^' ''''''' '^^
municipality Tother «nS ' "^ '"'^ ^'•*'^'"°^' ^^ «f ^^^
aiterini'orip::rrn«l;ti r:ro:t^^ ^"'^ "^^^ ^^^ '"^'^■■"^'
0ther8uchbuildin2%aiLav r , , ,^f' ""' ""^^ court houHe or
as aforesaid, or to £ us^ "n ' ? ' '^' ^"" ""' "*^" ?"''"« ^^'k
purpose whatsoever!! "°' "'"' ""^ «"«** ^«'-''' or for any other
^' wi »"/ original document, w}iiifur>a.,<.. ^r i^ i
any court of justice or mU*; . wnatsoever, of or belong ne to
Le, preyed or dLn *„ .I'^J:;- T"' "'«'""«""" I»P»r,
188,ya.<. 24.25 V.,c. 96, «. 29, 30, 31. Lj, ' "■^"'- "' '•
i.mF,»e»,io„ofm„rLlL. °' ■""■'?"'■ "W^'' telong,to„r
.h.11 bo,„ffioie„ £ lore-onrr'"- °'' "°t ■" """""'"■ ■'
l»r.y ,„ belong to A, Mr™ ao „ '1 , "'T"'' f '' *" "°" "" P'^
™e m.y be.I.S2.33 K!r29% R ' " "' °"'""' "^ ""
110. If, i„ any indictment for anj- offence, it i, necessary for a ny
'H
^ V \
I
■siiilili
liniHiitM.^
%.. ■
732
PROCEDURE ACT.
purpose to mention any partners, joint tenants, parceners or tenants
in common, it »!iall be sufficient to describe tlieiii in the manner
aforesaid ; and this provision and that of the next preceding section
shall extend to all joint stock con>panies and trustees. — 32-3.'{ V c
29, a. 18.
These two clauses are taken from the Imperial Act,
7 Geo. IV., c. 64, 8. 14. Formerly, where goods stolen
were the [ 'perty of partners, or joint-owners, all the
partners or joint-owners must have been correctly named
in the indictment, otherwise the defendant would have
been acquitted.
The word "Parceners" refers to a tenancy which
arises when an inheritable estate descends from the
ancestor to several persons possessing an equal title to it.
— Wharton, Law Lexicon.
It must be remembered that the words of the statute,
in sec. 118, are, "another or others;" and if an indict-
ment allege property to belong to A. B. and others,
and it appears that A. B. has only one partner, it is a
variance.
The prisoner was indicted for stealing the property of
G. Eyre " and others," and it was proved that G. Eyre
had only one partner; it was held, per Denman, Cora.
Serj., that the prisoner must be acquitted. — Hampton's
Case, 2 Buss. 303. So where a count for forgery laid the
intent to be to defraud S. Jones " and others," and it
appeared that Jones had only one partner, it was held
that the count was not supported. — R. v. Wright, 1
Lei inn, 268.
In E. V. Kealey, 2 Den. 68, the d(?fendant was in-
dicted for the common law misdemeanor of having
attempted, by false pretences made to J. Baggally and
others, to obtain from the said J. Baggally and others
PBOOEDURl! ACT.
733
one thonsnnd yard, of silk, the property of tl,o said J
Bagg«Uy and othor,, witl> intent to cheat the said j'
Baggally and others of the same. J. Baggally and
others were partners in trade, and the pretences we«
made to J liaggally; but none of the partners we™
present when the pretences were made, nor did the
pretences ever reach the ear of any of them. It was
objected that there was a variance, as the evidence did
no show that the pretences where made to J, Jiag,^i|„
and others ; but the objection wa, ovcTuIed by uTsseU
Guerney, E,q., Q. c. and, upon a case reserved/the con-
viction was held right.
Oreaves. in not, a. 2 Ry^. 304, says on this case:
"It IS clear that the 7 Geo. IV c 64 s U ^
the' r' ?;r'" f '"^ ''""''""' ^'='> "'"-■"thorS
the use of the words 'and others;- for, except for that
clause, the persons must have been named. There the
question really was. whether that clause authorized the
use of ,t in this allegation. The worfs are. ■ whenever i
shall be necessary to mention, for any purpose whatsoever
any partners, etc." (• if it be necessary for any purpose to
mention, etc., sec. 119. ante.) Now it is pfai!, tlfat the
prisoner had applied to Baggally to purchase the goods of
the firm, and the inference from the statement in the
indictment IS that he had actually made a contract for
their purchase, and, if that contract had been aUeged.it
must have been alleged as a contract with the firm, and it
wa, clearly correct to allege an attempt to make a »utract
«s made to the firm also." <-outract
and Wrights cases, nU supra, would not be fatal if
«nended.-3 Bum. 25; see sec. 238 post; Jb v
734
PROCEDURE ACT.
Prltchard, L. <fc C. 34 ; R. v. Vincent, 2 Den. 464 ; R. y,
Marks, 10 Cox, 367.
It is not necessary that a strict legal partnership
should exist. Where C. and J), carried on business in
partnership, and the widow of C., upon his death,
without ttiking out administration, acted as partner, and
the stock was afterwards divided between her and the
surviving paitner, but, before the division, part of the
stock was stolen; it was holden that the goods were
properly described as the goods of D. and the widow -^
R. V. Gaby, R. d- R. 178.
And where a father and son carried on business as
farmers; the son died intestate, after which the father
continued the business for the joint benefit of himself
and the sons next of kin ; some sheep were stolen, and
were laid to be the property of the father and the sons
next of kin, and all the judges held it right.— i2. v. ^cutt
R. & R. 13.
In an indictment for stealing a Bible, a hymn-book
etc., from a Methodist chapel, the goods were laid as the
property of John Bennett and others, and it appeared
that Bennett was one of the Society, and a trustee of the
chapel : Parke, J., held that the property was correctly
laid in Bennett.— iJ. v. Boulton, 5 C. dt P. 537.
In R. V. Pritchard, L. & C. 34, it was held that the
property of a banking co-partnership may be described as
the property of one of the partners specially named and
others, under the clause in question; but see now sec. 122
of the Procedure Act, 'posty as to bodies corporate, and the
property under their control.— iJ. v. Beacall, 1 Moo G G
15.
laO. In any indictment for any offence committed on or with res-
PROCEDURE ACT.
785
iwct to any house, hiii!,lii,L. »«»„ „,^ i • ,
fence or other thiig J^l ^^r^S^:!^ ^^JT'' '""''' ^*'
o,.er«, m pursuance of any act i. torcllb^Z °'' ««"""i««i-
thereof, for -aking a„/tur„pi.^. ^^ To .^^^^
appurter.anceH thereunto re8i,ectivelv h«l J • ^ ««"venien(M.H or
tools or i„.ple,uent« pruvirelT fak^r al^-" '' '"' ""''*^'«'«'
121. In any indictment for any offenc« r^m^-.. s
JH'ct to any buildin^js. or any goods or.l.l ?"^ ''" °' ^'''' >•*«-
real or personal, fn the olo'^i: T^^^^^^^^^
charge or n.anagement of any public ofHcer^r J .''T'-""^'"Je"ce
county, pariHh, township or nn.icipalofH'r '''''""''•"'* *"^»
shall he flufHcient to state an v su . L ? [ °' ««'""'i««'oner, it
co.nn,iHsioner in who e occlltb PT' ' '^^'^"« '« '''-^"'^er or
charge or management ^^pTo e ty ^'j^'rVTr
to specify the nan.os of any such oSor nr "''^ ^ "''^«'^«''y
c. 29, .. 21. 7 Geo. 4, c. 64,Tl6.t;;;': *^'^'"""-'--'--^2-33 K..
It has been held that if a person employed by a trustee of
turnpike tolls to collect them, lives in the tol^h u e "n
free, the property tn the house, in an indictment for bur
glary. may be laid m the person so employed by thelessr
he havtng the exclusive possession, and the toll hte not
being parcel of any premises occupied by his emlv!
R. V. Camjleld, 1 Moo. C. G. 42. ^ employer.-
J,t.at!r;:c;gtenTr^^^^
perty of such body corporate.T2l3F.rc 29 ,.22!" '" "'' ^''"
This clause is not in the English statutes. It is onlv
.eolen, the, .u. ,. .M to bT r/C^r ^1;:!
if
I
736
PROCEDURE ACT.
ration in their corporate name and not in the names of the
individuals who comprise it.— JR. ^ Patrick and Pepper
1 Leach. 253. So in R. v. Freeifnan, 2 Rusa. 301, the pris '
oner was indicted for stealing a parcel, the property of the'
London and North Western Eailway Company. The
parcel was stolen from the Lichfield Station, which had
been in the possession of the company for three or four
years, by means of their servants ; but no statute was pro
duced which authorized the company to purchase the Trent
Valley Line; an Act incorporating the company was
however, produced. It was held that, as a corporation k
liable in trover, trespass and ejectment, they might have
an actual possession, though it might be wrongful, which
would support the indictment.
' In R. V. FranklaTid, L. S 0. 276, it was held- 1st
That the incorporation of a private company must be
proved by legal and documentary evidence : 2nd. That
partners in a company not incorporated, might be proved
to be such by parol evidence ; 3rd. That Thomas Boliand
and others, who were described in the indictment as the
owners of the property embezzled, being partners in a
company not incorporated, the indictment was supported
by proof that the money was the property of the company.
123. In any indictment against any person for stealing any oysters
or oyster brood from any oyster bed, laying or fishery, it shall be suf!
ficientto describe, either by name or otherwise, the bed, lavin.or
fishery ,n respect of which any of the said offences has been commit--
ted without statmg the same to be in any particular county, district
or local division.-32-33 V., c. 21, s. 14. part. 24-25 V., Jkst
Imp. ' ' >
See sec. 11 of ^e Larceny Act, p. 294, anU,
124. In any indictment for any offence mentioned in sections
twenty-five to twenty-nine, both inclusive, of « The Larceny Act."
imes of the
nd Pepper,
31, the pris-
)erty of the
iny. The
which had
■ee or four
ie was pro-
3 the Trent
pany was,
poration is
light have
M, which
held: 1st.
'' must be
2nd That
be proved
s Boliand
snt as the
ners in a
supported
company.
any oysters
lall be suf.
, laying or
in comniit-
ity, district
;. 96, s. 26,
n sections
}eny Act."
PROCEDUEE ACT.
737
shall be sufficient to 1a«. n
eon or corporation, in Ze^lZTi !" ^^^^J^^^' ^^ - any per-
variance in the latter case, between ZV". '"'^ '"^ictment ; and any
the evidence adduced. n.iytZV^^^^^^^^ '^« -^-^n^ent anj
^proved the indictment may be Inlli f ''' ' *"'^'' "« ^^^^r
Her Majesty .-32-33 F., e. 21. , 36. ^^ ^"^'"^ the property in
These sections of the larceny Act p 310 ,,
apply to the stealing of ores and t^'! ^i' ^'^•' *^^^.
125. In any indictment for anv nfp
postal card, postage stamp or2iluT''''^f'^'^ '» respect of any
by the authority of the pi^^l^met ,f "anT'' '' ^''^''''' '^^ '■««"«
any Province of Canada, for Zj^yr^Z'f/:' t "^^"'^'^^^^ ^^
whatsoever, the property therein Ti be ,aid f"f/''' '^'' «^ ^"ty
possession as the owner thereof, it was w .. . \" P'^'^"" '" ^^^^^e
was committed, or in Her Majesty, if U wa tK ^""'""^ °^ ^^^"ce
possession of any officer or agent of I.! n ° ""'ssued. or in the
the Province, by authority of' h Le^is a^r'T""* '' ^^"^^a or of
prepared for issue.-35 r^ o. 33m^;«^;;' ^'^"^^^^^ ^as issued or
Sec. 2 of the Larceny Act n 9-70 u ,
cation or diiro^'oro'^f'^i^n^cbltle^J^r''^^ appli-
under sections fifty-three. fifty-four'and'fiT 7 '*'""^'^ ^^^^^Uy.
ie/," the property in any such chattel If ''^ "' " ^^^ ^«'-4
n^ay, in the warrant of commitm nt b'' tr 'r'' '"'"^^'^ «^«»rity
whom the offender is charged, a^n^he ini"'"' "' '^' ^^'^ before
auch offender, be laid in Her M^e ty "r n tf r'"* ""''''''"^ ^g^'"^*
case may be.~32-33 r.. .. 21, ,. 72. JarT 24- "f"" 0^''?' '' "^
■n or wkl, a„j l,o„,eor lo IgC I!!;;"^""'^' '<^' "o '" ""ed by L
«"«« »o H .0 be „eed, ./iad^cCl ta^^^r! f *"""« ""^
^^ iu me same form as if the
las.
738
PROCEDUBE ACT.
offender was not a tenant or lodger may be preferred,— and in either
case the property may be laid in the owner or person letting to hire
32 33 v., c. 21, s. 76, part. 24-26 F., c. 96, s- H,Jmp.
See, ante, p. 404 under sec. 57 of the Larceny Act.
128. No indictment shall be held insufficient for want of the ave^
ment of any matter unnecessary to be proved, nor for the omission of
the words '^ as appears upon the record" or "as appears by the
record," or of the words "with force and arnis,"or ofthe words "against
the peace,"— or for the insertion of the words " against the form ofthe
statute" instead of the words "against the form of the statutes," or
vice versd, or for the ovrission of such words,— or Jor the want of an
addition or for an impafect addition of any person mentioned in the
indictment, or because any person mentioned in the indictment is desig-
nated by a name of office or other descriptive appellation instead of
his proper name,— or for omitting to state the time at which the offence
was committed in any case in which time is not ofthe essence of the
offence, or for stating the time imperfectly, or for stating the offence
to have been con uitted on a day subsequent to the finding of the
indictment, or on an impossible day, or on a day that never happened
—or for want of a proper or perfect venue, or for want of a proper or
formal conclusion, or for want of or imperfection in the addition of
any defendant,— or lor want of the statement of the value or price of
any juatter or thing, or the andount of damage, injury or spoil, in any
case in which the value or price or amount ot damage, injury or spoil
is not of the essence of the offence.— 32-33 V., c. 29, s. 23.
The words * against the form of the statute " are not
necessary in any indictment.— Castro v. E., 14 Cox, 546.
This clause is taken from the Imperial Act, 14-15 V.
c. 100, s. 24. The words in italics are not in the Imperial
Act.
By this enactment no objection can be taken against an
indictment in the following cases :
1. The want of the averment of any matter unnecessary
to be proved.
2, The omission of the words "as appears upon the
record,"
nt of the avep-
le omission of
>pears by the
voids "against
be form of tiie
statutes," or
le want of an
miioned in the
Iment is desig-
on instead of
ich the offence
essence of the
ng the offence
finding of the
ver happened,
of a proper or
e addition of
le or price of
■ spoil, in any
"jury or spoil
te " are not
i Cox, 546.
1 4-15 v.,
le Imperial
PfiOCBDUBE ACT
739
3. The omission of the wnr(U » «„
4. The oo>«.i„„ of ZZl "ST '^ ?^ '''°''^"
and vice versa. ' '^® statutes,"
7. The omission of such words.
8. Want of, or imperfection in the addih' .
person mentioned in the indictment '^ "^^
9. That any person is desienatpd L o
other descriptive appellation TsS ^f hi™""' "' '""''^' "'
10. Omitting to state the time afwtvh ^ '^l "'""'■
eommitted in any case where Ume i;„^' f I "*""^ ""'
the offence. ^ """ °' "»e essonce of
11. Stating the time imperfectly.
12. Stating the offpnpo +« t, i
»»b.equeut t'o thefiXg oftl T"'"'"'^''''"*''^^
impoaaible day, or on a dav tL ""^/""''■"' «' on an
It \ir » j ^ ™' "«TOr hapDenpd
13. Want of a proper or perfect venue.^"^ '
defendal ' " '"'^"'^•'''°" » ">» """ition of any
16. Want of the statement of the val„«
My matter or thing, or the amount f J "'■ P""' "^
apoil, in any ca^r where T vL o?"^'' "J"^ »
amount of damage iniurv r,r =„ ■. P"*' "' ">e
the offence. ^ ^ " 'P"" '^ "o' "^ ""^ essence of
On the first, second and third ca.,e, „„
called for. '^*'' ""> remarlis are
-""^,^^ri:s:--<»«ctme.
-ds.hefo.thisoh.nse:..xr.r^rfra:d
740
PROCEDUEE ACT.
arms,' anciently vi et armis, were, by the common law,
necessary in indictment for offences which amount to an
actual disturbance of +he peace, or consist, in any way, of
acts of violence ; but it seems to be the better opinion that
they were never necessary where the offence consisted of
a cheat or non-feasance, or a mere consequential injury
But the statute 37 Hen. VIII, c. 8, reciting that
several indictments had been deemed void for want of
these words, when in fact no such weapon had been
employed, enacted that, 'that the words vi et armis
videlicit, cum haculis, cuUellis, arcubus et sagittis,' shall
not of necessity be put in any indictment or inquisition.
Upon the construction of this s* tute, there seems to have
been entertained very grave doubts whether the whole of
the terms were intended to be abolished in all indictments,
or whether the words following the videlicet were alone
excluded. Many indictments for trespass, and other
wrongs, accompanied with violence, have been deemed
insufficient for want of the words * with force and arms • '
and, on the other hand, the court has frequently refused to
quash the proceedings where they have been omitied, and
the last seems the better opinion, for otherwise the terms
of the statute appear to be destitute of m^^^aning. It seems
to be generally agreed, that, where there are any other
words imploying force, as, in an indictment for a rescue,
the word * rescued,' the omission of vi et armis is suffi-'
ciently supplied. But it is at all times safe and proper to
insert them, v^henever the offence is attended with an
actual or constructive force, or affects the interest of the
public."
The words " with force and arms," though not absolutely
an essential allegation of the indictment, would, in certain
^m^^^-
imon law,
unt to an
y way, of
inion that
nsisted of
ial injury
siting that
want of
had been
et armis,
'tis,' shall
quisition.
s to have
whole of
lictments,
ere aloue
nd other
I deemed
d arms ; '
efused to
tied, and
;he terms
tt seems,
ny other
a rescue,
is suffi-
)roper to
with an
it of the
PROCEDURE ACT.
741
cases, not be oasily renlaop.! o. • • ^.
entry or forcible det^er Vh ' '" T'^^'^^^'^ ^^ ^--ble
if a statute created an 'ofTenc; in th" Tf ^^^ W^^,
"Whosoever, with force andT,T ^ . ^"'^^°^ ^^^^'^^
words vi et arr.is "^^'0?^ ^'^- '^^- ^he
offence, and should be found in T"^ ^^g^edient of the
clause. """"^ '"^ ^" indictment under such a
As to the words " against the peace " n^
they were necessary, where thp off . '"'"'"'^^ ^^^'
one created by statute and J«/ '' "^^'^'^ ™ "'^^
were the words required X,' ^^^'^ ^^^-^ ^egis
each of the counts ^o^.;; ;1^^^^^^^^^^^^ ^-^-on of
^^--^^contracoronametdlnZe^ '""' insufficient,
sary._2 Bale, 188 So form ] ^"^ ""^^ "'^ '"''^''
in ascertaining whether the exprel;^ ' 'r' 7?'''"^"''^
the statute " or " a-^ainst thl7 T ^^^'°'^ ^^^ ^^'"^ of
be used; but one ^r the 'ir ''^ ^'^^"^^^ " ^^^^^^
indictment charged a statutory cime' TnT7 l'^" ^'^^
a contrary opinion is given L aZ,oL X'lt ''°''''
accordmg to Broom's Comm v QQl ft' f ' '^^"'''
conclusi of the ^ndictmen; must be ^C^ ^'^
ste^^^*, where the offence charged i.VT. ^ '*''''''
statute law, as the 14-15 V f iln "P"'' '^''
dispense with the conclusion • but JhJ, '' ^l' ^""^^ ""^^
anse there are in Canada rll^elt^L^^^^^ -^
ante, declaring immateri:? tl^^^^f : .^^'f ^^^ ^^"^^^th,
ect addition of an, person menti Ld n t"n r r^""
T^'s covers all persons who are namedr'; ^ f t
i
i
"^ r
742
PROCEDURE ACT.
property, regarding which the offence has been committed,
and appears to be the rule even without this clause.— 3
Burn, 23.
What is meant by the word " addition? " Addition is
the title, or mystery (art, trade or occupation), and place of
abode of a person besides his nmiQB.— Wharton, Law
Lexir-^T'. verhr- n/idition.
I ,v ■ ; ■ «dnth enactment of the clause in question, it is
decki ^hat no -ndictment shall be insufficient " for that
any person mentioned in it is designated by a name of
office or other descriptive appellation instead of his proper
name."
This part of the clause applies only to the names of the
I^rosecutor or of the party injured, or of any third parties
mentioned in the indictment ; it does not extend to the
names of the defendant. Under it, an indictment alleging
the goods stolen to be the property of the *' Duke of Cam-
bridge " without giving him any other names, would be
held sufficient. R. v. Frost, Dears. 474. But it must be
remembered that, if at the trial, it appear in evidence that
the party injured is misnamed, or that the owner of the
goods or house, etc., is another and different person from
him named as such in the indictment, the variance, unless
amended, is fatal, and the defendant must be acquitted.— 2
East, A', a 651, 781; Archbold, 46. But, now, under
sec. 238 of the Procedure Act, see, post, such an amend-
ment, asked for before verdict, would hardly ever be
refused.
The enactments tenthly, eleventhly, and twelfthly, con-
tained in the above sec. 128, refer to omitting in any
indictment to state the time at which the offence was com-
mitted, in any case where time is not of the essence of the
PROCEDURJS ACT. y .,
to the finding of the indi.nT "" * ^^ "■''sequent
or on a day Lt tT^TC^Z T '""-""""^ <^y-
the same terms as the KnZh "ct'tlat T '"""""^ '"
indictment ou these ground tSfll''*' "7,''J^°«™ 'oany
dant. ^ ' "'" ^ available to the defen-
«ent and evideL^n^r C^^ToT ""'"'^
committed, was never considered T.? • i °^ "^^
ffenry VaneS Case, for hTXCal r ' '"'' '° ^*'-
structionsof thecou; found fh7' J"'^' ""''''' *»-
offence was praved to w„ t ' ^"'"^' "-""gh the
anterior to the time Mi^rr. '""""'"'^'' '^'' ^^'^
19; *.« ^ i^" »^/Ct'"trtt75^'^^^^^ ^- ''•
time laid in the indW„ 7 • ■*■"""« ''''otone that the
e«ntial to the o4nt wa" "T r"*"'' "■>» ""'
in lord Balme2TcZ-7^"'^l''V'"''"'^'''
Fost. 9. »« t-w, note in Townley's Case.
offenee be committed in the !11 ^ '"™' y^' '^ «"«
the offender oughtlTfor/ ruU^"!!;"!? '/.T'
But It was, nevertheless, necessarfZu.r nlf f ; "l
averment, except in particular case to IteTn^h T*'
ment the time at which the nff! ! ""' ""'"""
committed, that is .» 4 the tj sldT ''".'"^"
I'll
744
PROCEDURE ACT.
Justices, vol. 3, calls this a mystery of the English Pro-
cedure.
But, now, by the above enactment , time need not even
be averred, and, if averred, it is no objection that the date
stated is an impossible or an incongruous one. The aver-
ment is a surplusage, except when time is of the essence
of the offence, as, for instance, in an indictment for a sub-
sequent offence. ^
"Averments of time in criminal proceedings, says Tay.
lor, Ev., 229, are now even of less importance than those
of place; for excepting in the very few cases where time
is of the essence of the offence, the indictment need not
contain any allegation respecting it. Indeed, independent
of the new law, the date specified in the indictment has
been so far disregarded that, where a court had no juris-
diction to try a criminal, except for an offence committed"
after a certain day, the judges held that no objection could
be taken to the indictment in arrest of judgment, for alleg-
ing that the act was done before that day, the jury havincr
expressly found that this was not correct.— ij. v. Trt
harne, 1 Moo. C. C. 298."
It is said in Archbold, page 50 : « There are, however
some exceptions to this rule : 1. The dates of bills of ex-'
change, and other instruments must be truly stated, when
necessarily set out ; 2. Deeds must be pleaded either accord-
ing to the date they bear, or to the day on which they were
delivered ; 3. If any time stated in the indictment is to be
proved by matter of record, it must be truly stated; 4. If
the precise date of a fact be a necessary ingredient in the
offence, it must be truly stated."
See, post, sec. 237, as to amendment of variances between
the proof and the indictment, in documents in writing.
'«4fef?f -7
English Pro-
3ed not even
hat the date
. The aver-
the essence
t for a sub-
, says Tay~
B than those
where time
it need not
ndependent
ctment has
i no juris-
committed
'ction could
t, for alleg-
ury having
-R. V. Tre-
I, however,
>ills of ex-
ited, when
tier accord-
they were
Qt is to be
ted; 4. If
mt in the
MOCEDUEE ACT.
ing the validity of the 'Sem ™ "'"""■ " »■" "^^t-
It aeema that an entire omSl „f
vided for by this clause andTsT ? ™"™ "' ■>»' Pro-
still be taken adva„::^tf Cr "" »■»--■' "'ght
stated m the b«iy of the indictn 1^? ™'""' "^^"^ »"' be
descnptiou is required but thl ' """f"' ''''"'' local
ty. or place in L n>a;^n sMruV'""^ ""'""'■ -»■'-
-. 104 «„,, But an entir 1 tL'!" '" "^ '^^ ^enue;
where .t is yet necessary, thorh t T"" '" ""^ '='"«»
tege of under sec. 143 of the P^^^^ ^ '"''™ ^^van-
demurrer or motion to a„,,j, .?f ^"f" ^<='. bj way of
bably be rectified by ame^dmt '"*'"»»'. could pro.
if not .aken advan^eTby de ' T "*' '^'="«» ^ »«•
the omission could not be taken L T "'°"™ '« '!"«"■
."arrest of j„dgn,ent. See 3 1™ o?"' °' ^"^ """on
The above clause declares a, if. r I'
that uo indictment shall be heTd t 7^°"' ^™'"™»'
»p™;«.„^/<,^„2^^^^«<"nsufficient/or ««„, „^
These words " were intr ri
^rfectly unnecessary and imrla""': ^ T'"^'"""
W. hy Greaves. ^^' —^ ^uaa. 326, no^e
So that the word<q « f« +k
""totheevi exan.l„n 'T^" "' ^^ -"
displeasure of Almighty God » f """""•" " ''' ">e great
•a^y.arenow not tlV^^ '^^^MXyn..,, „f,,,.
P«bhe nuisance need not now con.l 7 '°*'''"'^'" ^r «
Aii^ i,„f 1, ^oimes, Dears. 207
And before these statutes, if was hJu .u .
p "against the form of the stalte " • '*' ""'"''"-
for a common law offence in., 7l '" "" in^iotment
^ not invalidate t^Z^' l''^'"^"'^ P--."
ciment, the conclusion may
1 i, . 5 ■
1
1
I
; ! . i i
li
i; Mi'
■i i ;
ti'i
746
PROCEDURE ACT.
f I
then be treated as a surplusage. — R. v. MathewR^ 2
Leach, 585.
The want of or imperfection in the addition of any
defendant is the next defect declared immaterial by the
above clause, or rather declared to be no defect at all.
See, ante, what has been said under the enactment in
this same clause, concerning the want of addition or imper-
fect addition of any person mentioned in the indictment.
Sec. 142, post, enacts, inter alia, that no indictment
shall be abated by reason of any want of addition of any
party offering such plea.
Before these enactments, the 1 Hen. V., c. 5, required
in indictments, to be given to defendants the additions of
'* their estate, or degree, or mystery," and also the " towns,
or hamlets, or places, and counties of which they were or
be, or in which they be or were conversant."
Lastly, this clause enacts that no indictment shall be
held insufficient for want of the statement of the value or
price of any matter or thing, or the amount of damage
injury or spoil in any case where the value or price, or the
amount of damage, injury or spoil, is not of the essence of
the offence.
The rule is, that if a statute makes, for instance, the
stealing of a particular thing a felony, without reference to
its value, then the value need not be alleged in the indict-
ment. But wherever the value is an element to be con-
sidered by the court in determining the punishment, it
must be alleged in the indictment and duly proved on the
trial.— 1 Bishop, Cr. Proc. 541. So suppose an indictment
charges the defendant with the larceny of a diamond ring,
without alleging the value of the ring, the defendant can-
not be sentenced to more than seven years in the peniten-
tiary, under sec. 5 of the Larceny Act, though, at the trial,
MathewRf 2
!nt shall be
he value or
of damage
price, or the
3 essence of
mdant can-
tie peniten-
it the trial,
PnOCEDURE ACT.
allowed by ,ec. 86 of the ^J^ ^^^' P-^^h-ent
..at„te, ; relH^fr^rr °?;\r-- -"-. -y the
dwelling-house «„y ehattelTt.' , .J™™^*' '''"I^ in any
of *»«*^.^,, cio^LTl^tt'^ *' :°'"° '" "^^ *•■■"«
Act. To bring an indict J^* ' j *" °' "■« I^'oeny
of 'wenty-five'd „ W tot mu^ ""' """•'"' ""^ ^"^^
in the indictment and p"vTd 'b ^""'^"'^ *" ''"''«^<'
to be of fifty dollars, and protd fo h '°T' " ''' "^^'^"^
will be sufficient, because Se ^l! ! ™'j "' ""•^'y' ^is
offence created by statute ^ '' ™''»"""«s the
-"retri^rr;^^^^^^^^^^^
a^ to form, in the whole tZ 1 . '"^"'' "'«'«'''. «>
the case under the statu te %'™"'»'" »e«««3a.y to bring
1 Taylor, Ev. par. 230 »„„. ''?,'*' ^- "* ^- 274;
^0^, 54, it has been hdd bvtr ' '" ^^ "• ^*»»"'». "2
that iu an indictment "dt 24 25^ "' T ™' '^^^
(«. 58, c. 168 of Canadian Ac^^/fJ;™',^' '' "' '"P-
■og personal property th, ,W? " ^''•""•'s'y damag.
i'i» not necei:^ to'^ffege I^Xe^f "\*™ P""""'
jured, or the value of the Lm!! T *'"''' *'*''='« in-
only that the amount of damt^H ? " """'' ''"''=>^. >«>'
exceeded five pounds in the a^resate "'™"^«'-«'=fe»
or Pro.i„ci.l „„te, it rt,^„ UVuS,!'"-' !?"''• •" I^""°io°
»ote „„,p|, ., -itCt anTln '"'■'""nl- »■>* money or
»'-»-"-ote, . uho.hr ";::^4r;::z;—^^^^^^
748
PROCEDURE ACT.
such amonnt wa« coinposcl or the particular nature of the note i.
not prove,l.-.32-33 T., c. 29, ,. 25. ' "
130. Whenever it is necesflary to make an averment in an indict.
ment, as to any in«trument, whether the Han.e corwists wholly or in
part of writing, print or figures, it 8hall l« HufHcient to describe 8„cl,
instrument by any name or deHignation by wiiich the flame in UHuallv
known, or by tije purport thereof, without settitig out any copv or
fac simile of the whole or of any part thereof— 32-33 V., c. 29, a. U
The 130th sec. is taken from the 14-15 V., c. 100 a
7, of the Imperial Statutes upon which Greaves remarks:
*' Thi^ section renders it sufficient to describe any instrii-'
ment to which it applies by any name or designation
by which it is usually known, or by its purport. It
is to be observed also that this section applies not moroly
to instruments in respect of which any offence is alleged
to have been committed, but to every instrument as°to
which any averment may be made in any indictment.
— Lord Camphell'8 Acta, by Greaves, 12.
The 129th sec. is taken from the 14-15 V., c. 100 s
18, of the Imperial Statutes, upon which Gre^wes says
" This section was framed upon the 7-8 Geo. IV., c. 29, s.
48, and was intended to meet the case of R v.' Bond, 1
Den. 517. It originally applied to money and valuable
securities, the same as the section from which it was taken ;
but it was thought better that it should only extend to
coin and the notes of the Band of England and other banks.
In these cases it is sufficient in any indictment whatever,
where it is necessary to make any averment as to any coin
or bank note, to describe such coin or note simply as
money, without specifying any particular coin or note ;
and such an aUegation will be supported by proof of any
amount, although the species of coin or the nature of the
note be not proved."
As to sec. 130 it is only necessary to remark that, at
PROOEDUM ACT.
749
common law, written instruments, wherever ,h. t .
. part of the giat of the „fl-„„e„ e ha^ed mlt ,7 T^
r™uu.ent,, „,?„:• ;r3:^^^^^^^^^^
goods by the false pr„te„«, u„.t jj is a '^Jd bl°'""""".8
. not necessary to set out the hank note',tea.« i.T '!
in this case material for the mnrf f "7^"se it is not
..„t falls within a partic^^r Z^^-mTc T"'
1 Den. 592. 'i'"°°'— ■«• V. C(wfeo«,
As to sec. 129, it is said in ArchboM Ku .i . ,
this enaetraent, money was deaXd it ' '? ^'""^
as so many "piece, of th„ I, ? , "" ""iictment
] pieota 01 the current gold " or "oil, »
" copper coin of the realm, called "1 f .u " "'
species of coin must have been swdfild . ^ m' '»'"'="'"
Bale. 1 P. C. 534, and StaZTc fl 'ui f""« ' t"^''
a contrary opinion, an i'ldietm „t chari'^CT^-^ °'
ten pounds in moneys numbered was S Ld t I "'
li. <t- A, 482. And in Bo^.d'. ease, cited "^Z"^ "■ ^'^•
■t was held that an indietmen eha Z I ^! ^i"^"'"''
.eventy pieces of the current coin otZ'Zm ^,7 "'
reigns, uf the value of seventy pounds WO ^""'' '<""'-
called half-sovereigns, etc., SOO^'ie™ ^c 117'' ""•'
etc., IS net supported by proof of a ste^i';""; Z")
money consisting of some or other of thT ■ °'
iuthe indictment, without pr^lf of J "™ °"'""™''<'
the speciilc coins 'there char;:d to brvrbeT: L """n"'
«.se these decisions could Lt now be fou'ed ' ""'
Ou sec. 129, see ii. V. P44«rf, 2 £. JV. 140. "
131. In «nj indiclment for forsii,,, alterin. „«■ ■
:x:f ir fr S!. ™^^^^^^^^^ ^^ --" sn
.. - ----.up
!
i
i
760
PROCZDURK ACT.
Betting out any copy or /«c simile thereof, or otherwise describing the
Barnej>r the value thereof.-32-33 T., c 19. ,. 49. 24-26 V., c 98,^
132. In any indictment for engraving or making the whole or
any part of any instrument, matter or thing whatsoever, or for usin'
or havng the unlawful custody or possession of any ^late o otTef
ZT T: "'^''V'' "^^'^ '' ""^ ^'' ^^-'^ instrument, matt
or thmg whatsoever has been engraved or made, or for havi^t 1
unlawful custody or possession of any paper upon which thTwhi
or any part of any mstrument, matter or thing whatsoever has Ti
made or prmted it shall be sufficient to describe such instru,nen
matter or thing by any name or designation by which tlJe a e
usually known, witnout setting out any copy or fac simile oTtil
whole or any part of such instrument, matter or thine.-32-33 r
19, s. 60. 24-25 V., c. 98, s. 43, Imp. ^'^'"g—^^ 33 F, c.
133. Any number of accessories at different times to any felonv
may be charged with substantive felonies, in the same indictment
an4 may be ined together, notwithstanding the principal felon in":
included m the same indictment, or is not in custody or amenablet
just,ce.-31 v., c. 72, ,. 1,part. 24-26 F., c 96, s. CimT
See, ante, under c. 145.
Qreaves' note.—Thm clause is framed from the 14-1 5 V.
c. 100, s. 15, and the words in italics inserted. The com-
luittee of the Commons who sat on the 14-15 V., c. lOo'
struck out those words, not perceiving that they were the'
only important words in the clause : for there never was
any doubt that separate accessories and receivers miaht be
included in the same indictment under the circumstances
referred to in the clause ; the doubt was, whether they
could be compelled to be tried together in the absence of
the prmcipal where they separately became accessories or
separately received. '
ai,W rl ^'''*'*^ "'""'*!^ "''^ ^' '""^^'^^ ^" ^^^ «*™« indictment
agamet the same person for any number of distinct acts of stealing, not
exceedmg three, committed by him againflt the same person, within
ejx months from the first to the last of such acts, and all or 2of
them may be proceeded upon.-32.33 V., c. 21, s. 5. 24-25 F., c.d6
the whole or
or for iisitjff
late or other
ment, matter
r having the
;h the whole
i^er has been
instrument
the same is
imile of the
■32-33 r.,c.
> any felony
indictment,
felon is not
imenable to
tp.
14-15 v.,
The com-
., c. 100,
were the
ever was
might be
instances
tier they
PROCEDURE ACT. »,--
bee Ji. V. Suprani, 13 J? r k*?*? ^ .
Before the p^assing otlJtlT' V'"' '"'•
point of law that an L Jment 11^,. ""' •"'°'"" '"
charging distinct felonies "f ^L ° ^ ''P*™'* «"">'»
fitted by ae san^e 0«Z:'J^'ZTltT7rT^ r""
B- V. Sey^ood. L. & 0. 461. It w^ ^ "' ' '"'*'• ^'^ '
tlie discretion of the conrt ■ J^ Zl *■ * ""'"^■■for
prisoners would heTn::;^^;:,^''^ ''"
would either ouaoih fi,o ;«^- ^ ''^ counts, the court
for the p^seoS ^^k f Tv "v ""'^' "^^ ''™»-'
charged in separate cunts there may at, 1 1'"""^ ""^
for recoiving.-& v. ir«y»<,o,i,X.Te 461 *"^' """"^
Greaves, on this clause, savs •'. It f„„ ., i
before this statute passed Tat' « ! ^?°"^ ""PP*"'^
sundry articles of smTvain^f .""" "^ "^"'^ '""^
times, and in suchalse it " °'"''^' "' '^'«'^'™'
ate indictments or eaTdriTr^ '" ^""" ^'-
trialitnot seldon, h^petd tlf " '"'"r "'' ™ '''«
attention confined to the theft nf f"^' *"""« *"'
value, improperly :c,*:e.^^'*,^';-f!/;fe "' ^-U
mdictments. The present sect^onTmSies thl" '""'"
vemences, and places sevemi krcenies W,.* """■
.on in the same position as severaleth ^ ^^ ^'-
propcrtyof thesame person loltth"" "' "■«
now include three larcenLs' nf t P™ecutor may
Within the space of Jrc^^rdafm^th'sTth' """"r
See Jt. V. £e«/S«M, 2 B,«t qso T^ ' ]
«ot charge that ti sibsequ nt W^T """" "^
within six months »ft.Ti '""*"'«« ""re committed
V. ffey.oo4Tsam """"'""'' "'"'^ «^^'-^-
»3S. In an, ia«ot.e...co„..i„i„g . „i„ge of feloniou.,, .^.
s i
762
PROCEDURE ACT,
ing any property, a count, or several counts, for feloniously receiving
the same or any part or parts thereof, knowing the same to have been
stolen may be added, and in any indictment for feloniously receiving
any property, knowing it to have been stolen, a count for feloniouslv
stealmg the same may be added.-32-33 V., c. 21, 1. 101, part. 24-25
v., c. 96, s. 92, Imp.
• See remarks under preceding section.
The words "containing a charge of" are substituted for
the word "for" in the former act, in order that a count
for receiving may be added in any indictment containing
a charge of stealing any property. It will therefore apply
to burglary with stealing, housebreaking, robbery, etc. It
is also provided, by this clause, for cases which frequently
occur, and were not within the former clause ; where dif.
ferent prisoners may be proved to have had possession of
different parts of the stolen property.— Greaves' Gor^l
Acta, 180.
136. Every one who receives any chattel, money, valuable eecu
rity or other property whatsoever, the stealing, taking, extorting ol>
tammg, embezzhng and otherwise disposing whereof, amounts to a
felony either at common law or by statute, knowing the same to liave
been feloniously stolen, taken, extorted, obtained, embezzled or dis
posed of, may be indicted and convicted, either as an accessory after
the fact, or for a substantive felony, and in the latter case, wliether
the principal felon has or has not been previously convicted, or is or
18 not amenable to justice: Provided, that no person, howsoever tried
for receiving as aforesaid, shall be liable to be prosecuted a second
time for the same offence.-32-33 F., c. 21, *. 100, part. 24-25 V c
96,*. 91, Imp. ■'
This clause applies to all cases where property has been
feloniously extorted, obtained, embezzled, or otherwise dis-
posed of, within the meaning of any section of this act.-
Oreaves, Cons. Acts, 179.
See remarks under sees. 82 and 83 of The Larceny Act,
p. 443, ante.
137. Every such receiver may, if the offence is a miedenieanor
isly receiving
! to have been
sly receiving
)r feloniously
part. 24-25
itituted for
^at a count
containing
fore apply
)^. etc. It
frequently
where dif.
isession of
ves' Com.
PBOCBDUfiB ACT.
be indicted and tried for the m:-^ ' ^^^
Any part or narte tuJ^^ ^'vers at different tiiiiaa «r
substantive felonies in T^®^ o'^** one time, may \1 .{.7 *"*■
notwithstandi:r;rt\t;r:i;:fsr"''*"^^
indictment, or i« „ot i„ cnut^Zfl^ m ""' ^'^^'^^^^ in thelll
artera;re:io7cr;:r::ci;Li:f '^^^ °^--' -..itted
or offence or offences punisharnl '"' *"^''«^«"J^''»i«dem^anor
wh,ch a greater punishment may ^^^^oT'"'' ^°"^'«^'0" (and foj
be sufficient, after char^in^ thl 'f "^^'ctedon thataccount) ,>1 ii
Offender was at a certa^V dpl^a:?? \^^^"^^' '^ ^^i^'^:^:^!
convcted of felony or of a misdemeaTo'r T^'" ^''"^^ «»d places
punishable on summary convict on as/h ""' *" ^«'^"«« ^r offences
the substance and effJt only, JSCo . T' ^"^^ *>«' ««<^ ^« X .
0..eeoroLcr-lS3T:X^^1r,^^^^^^
M Coin Act, 24-25 V c 99 ^r''''' '^ ^^ ^^e Lg.
not in section 116 of the EudL T ''''''^' '° ^^^^^ are
section 37 of the Coin Act. T^^^^^^^ ^''' ^"^ are in
necessity, before existing, of settlL ? /,^^' ^^'^>^th«
^us indictment, etc., and f j^^^^^^^^ ^^. ^^^ the pre-
that indictment. ^ '^ '"* evidence a copy of
The following remartfl ««
«h the exception of the passa^r^ ^'=«dure Act,
-'----«.- act aS:-rsX'S
f<''
,»•..
'^^\i
754
PROCEDURE ACT.
or to any indictment for any offence. With us, sect. 139
of the Procedure Act clearly applies to all indictments for
an} absequent offence whatever, ^
Greaves says : " The words ' after charging a subsequent
offence' were inserted in order to render it absolutely
necessary always to charge the subsequent offence or
offences first in the indictment, rnd after so doing to allege
the previous conviction or convictions. This was the
invariable practice on the Oxford circuit, and the select
committee of the Commons were clear that it ought to be
universally followed, so that the previous conviction
should not be mentioned, even by accident, before a ver-
dict of guilty of the subsequent offence had been delivered.
, Mr. Davis, Cr. L. 113, however, says : * It seems to be
immaterial whether the prior conviction be alleged before
or after the substantive charge,' for which he cites R, v.
Hilton, Bell, G. G. 20. Now, that case was decided on
the 7-8 Geo. IV, c. 28, s. 1 1 , which had not in it the
words 'after charging the subsequent offence,' and is
therefore, no authority on the present clause in which
those words are inserted to render the course held suffi-
cient in R. v. Hilton unlawful. Whenever a statute
increases the punishment of an offender on a subsequent
Conviction, and gives no mode of stating the former con-
viction, the former indictment, etc., must be set out at
length, as was the case in mint prosecutions before the
present Coin Act; but when a statute gives a new form
of stating the former conviction, that form must be strictly
pursued ; for no rule is more thoroughly settled than that
in the execution of any power created by any act of
Parliament, any circumstance required by the act, however
unessential and unimportant otherwise, must be observed,
and can only bo satisfied by a strictly liberal and precise
ubsequent
ibsolutely
)ffence or
g to allege
was the
the select
ight to be
conviction
re a ver-
delivered.
ems to be
^ed before
ites M. V.
icided on
in it the
and is
in which
leld suffi.
I statute
bsequent
nier con-
let out at
efore the
ew form
3 strictly
lan that
' act of
however
bserved,
precise
PKOCEDtjRE ACT. "
offence can be satisfied by all J„ ? F .""* ^''''sequent
- ''■e Coin Ac, ^f^Zt'^;^ ,f' - clause
»cc loa ,„ charging the snbseqlt t """^ ""'J'''' "-is
without previously showin„ thtf f- ^ ""* ^^ * /<^^°«y
-ely. the previous Zl^ rl^'^J'^^''^ '' - 'e'on^
over, arraigning the prisoner Z 1 ""f ™«'""«'- More-
no, a felony, is e^ZCl^Z ItT"' ^'"^ ^
been before convicted. The Wi i 7 P"8oner has
Bpon the ignoi-anee of the iurv as'tnT^"!;. ^"^^'^ '^^^^
" It^hould seem that th i dMcuUv !! "'°"™-'
mounted. In the beginning of 2 ' T^ "^'"^ ^ ^"-
q«ent offence may bo allied i^eil;!?r' '"" ™'"^-
as If It were a first offend „L!?^ ** '^"^ '''™s
"iously;- then the previ„rc'o:^S:^ '"« T"^ '^'^'°-
the ordinary way; and then the m2 T ^ "*'^<' '"
■aad so the jurors aforesaid npl^t "*^ '^'"''''de.
.ay that the defendant on etc °" '"' °""' ''''""''^W, do
said, fehniomly did ' rltxtt ° "'""'«'■ «»<1 fcm afore-
a^ta). There not onl/ap'frsf T"^^'"™' <"f--
such an indictment, b«f itTould m^ "^ "''•'"'"'» ^
mom accurate form of pleading Z^l^T '" '"' *"
make a subsequent offence nft„ ' "^"^'^ which
meaoor. or of an offenrp„„ 11"°"""°" "' " ""'^'J-
tioD, a felony, are in this fo, , • wt ^ '""""■"■^ «-""«-
convicted of any such misdeme'an rhX;-'"""* '"^"
-;,^:"w;r:r:a:;;tr^-^^^^^^
756
PROCEDURE ACT.
any of the offences in this section mentioned, shall be
guilty of felony.' An indictment, therefore, in the form
suggested would be strictly in accordance with these
clauses ; and in principle it is supported by the forms of
indictment for perjury, and for murder where several are
charged as principals in the first and second degree, and
R. V. Crighton, R. <£; E. 62, appears fully to warrant such
an indictment; for there the indictment alleged that the
prisoner received a sum of money on account of his
masters, and ' did fraudulently embezzle' part of it, 'and
so the juroriB aforesaid, upon their oath aforesaid, do say
'that the prisoner on,' etc., 'in manner and form aforesaid
the said sum' from his said masters 'feloniously did
steal,' etc. It was objected that the indictment did not
cfharge that the prisoner 'feloniously embezzled ; ' it was
answered that this was unm cessary ; as the indictment
in charging the embezzlement pursued the words of the
statute, and that it was sufficient in having drawn the
conclusion that so the prisoner feloniously stole the money;
and, on a case reserved, the conviction was held right.
It is obvious that the clauses in these acts are precisely
similar to the clause on which that case was decided.
" It must not be supposed that in what I have said I
mean to raise a doubt as to the validity of an indictment
which follows the ordinary form ; all I suggest is, that an
indictment in the form I have pointed out would be good.
" Mr. Saunders, Cr. L. 94, complains that this clLuse
does not provide against the clerk of assize or the clerk of
the peace announcing ' a true bill for felony after a pre-
vious conviction.' This practice was cleariy iiTegular even
before this act passed, and .he reason why no provision
was made against it was that no one on the select com-
mittee of the Commons had ever heard of such practice.
•ned, shall be
3, in the form
e with these
r the forms of
re several are
id degree, and
) warrant such
leged that the
ccount of his
irt of it, ' and
'esaid, do say
brm aforesaid
oniously did
ment did not
zled ; ' it was
le indictment
words of the
ig drawn the
e the money ;
IS held right,
are precisely
decided.
I have said I
n indictment
it is, that an
auld be good,
t this clause
' the clerk of
' after a pre-
iTeguIar even
no provision
3 select com-
uch practice.
PBOCEDUHE ACT.
After the trouble the La ' i
previous conviction beinf ml"r^ ^^! ^^^"^ ^ P'«^ent the
has l^en convicted of tl 3!^' '''' ^^^ ^he prisone
hoped that any court wheriT"' '.^''^^' '' '^ '^ ^^
vailed will forbid it in future ^"'"''"' °^"^ ^^^« P^^.
toP.lSr'"'' ''' ^^"^^^--^ -d trial are now
"The defendant is first f^ k
only of the indictment wh^h 1'"^'^"'^ '° '^^^ P^rt
offence; that is to say he i 1 1''^'^ '^' subsequent
guilty or not guilty of that offend Tfl"'^^'^^ ^^ ^«
or ,f the court order a plea of not guiU?? t!' °^* ^"'^^>^'
him under the 7-8 Geo IV n J I ^ ^ ^""^'^^ ^01
5M. 8 (section 145 Procei:;e ^l'':;; ' ^^ '^•' '■
mute or will not answer direcTlvt 1 u"' ^' ^'^»^«
jury are to be charged in the fi^ '^'''^'' '^^'^ ^^e
subsequent offence only if ,L '"'^"«« ^ try the
the case is at an end ; but if th TT^ ""^ ^^^^ °«'«^«e.
subsequent offence, or if he r.1 Z . ^'"^ ^""^^^ ^f the
ment, then the defendant is Ct ^"f ^. *' '^ °" ^^^^8"-
been previously convicted as all«L^ !7^''^'' ^« ^as
he has, he may be sentenced tS 'f ^'^ ^^""' ^^at
^t. or stand mute of malice or tm n^ ^ ' '"' '' ^^ ^^^^
such question, then the jury Tre t T?' ^'^^'^^ '^
whether he has been so previLr '^'^'^^ ^"^ ^^y
be done without swearing S °'^'^'' ^^^ ^^'« ^ay
vious conviction is to be'ptTdTth "' """ ^'^^ P^
before this act passed *^^ '*°^« "tanner as
«».ams unaltered * '""""^ ">' l"' g""*! ohamcte,
".XTerorirt-r:.;;";--"'-""--
laentity of the prisoner failed,
h
1 #
765
PROCEDUKE ACT.
and "VVillea, J., directed the jury to be discharged as to tlie
previous conviction, entertaining a doubt whether, if the
jury gave a verdict, it might not be pleaded to a future
indictment which alleged that previous conviction, and
therefore it may be well to say a few words on this point.
There is no authority bearing directly on the question, and
the pleas of autrefois acquit and convict afford no support
to such a plea; for the former rests on the ground that no
one ought to be put in peril a second time for the same
offence, and the latter on the ground that no one ought to
be punished twice for the same offence ; now the clauses
giving a higher punishment for having been previously
convicted, clearly take away the grounds on which both
these pleas rest ; and all that a finding in favor of a pris-
oner on the allegation of a previous conviction necessarily
amounts to is that the jury are not satisfied that he was
previously convicted. It by no means amounts to a
determination that he had not been previously convicted.
It may, therefore, well be doubted whether any such plea
would be good ; but. supposing that this difficulty were
surmounted, another obstacle presents itself. In order to
plead such a plea, the prisoner must set out the indictment
in the case where his identity was not proved and his
conviction for the felony charged in it, and aver that he
was the same person that was so convicted ; for until he
had been so convicted the jury could have no jurisdiction
to inquire as to his previous conviction, and then it would
appear, by his own showing, that he had been convicted of
felony before the commission of the offence charged in the
indictment to which that plea was pleaded, and thus the
question would arise whether the court might not sentence
him accordingly. The clauses which apply to subsequent
offences merely state that if a person be convicted of any
;,i--it
irged as to the
■hether, if the
sd to a future
mviction, and
on this point,
question, and
rd no support
round that no
for the same
one ought to
w the clauses
en previously
which both
-vor of a pris-
on necessarily
that he was
mounts to a
ly convicted,
ny such plea
fficulty were
In order to
ie indictment
ved and his
aver that he
for until he
jurisdiction
len it would
convicted of
arged in the
md thus the
lot sentence
subsequent
icted of any
II
PROCEDURE ACT.
such offenco uler a r.r- • ^^
-verol, P.....h d Cersav""^" "* ^'"'"•'« -ore
conviction Mustbi shown ^f" *' """"^^ ""= '-">»
indictment or proof ia given ir^ """*".""' '"' '""^ »f
form of indictment and Xt". °, "^ "« stated what
l^-'it i3 plain that l^lw:t''""*""'^"^*»'•
Purpo,eoffacili,ati„gth^st^L"^t T '^"'^y'"' "■«
ae evidence in support of tandlr f ' '"'"""^"' »"
« to the efficiency of any oth^rV^^ """^ ""^ 1»«^«oa
unafected; and. th'ereS;^::':^;"^ """'"'^""^
plea alleged that he haa bel' '^':''""^'"'<^ h"^ by lUs
seems open to contend that iud«mr/'°"','^ convicted, it
for a anbaeqnent offence on Ich a "t' "^" "<' «-»-
"■ent ought to be accordingV h^ T^ ' '"' "'« ^""8-
the whole record. ^ *° "'"'^ '^ Wearing on
"But even if this were not hel.I . i,
«uM disclose the previous .„! . ^ '"■ '""* « P'««
would, no doubt, consideHt as f"""' "'"' ^^ ■=»"«
the punishment' for the s„h Ltr ':;'"'" ^ --*„g
cou't could not award any Ztr nu ^ ' '™° '^ *«
which was assigned to the^ubsetle'toff'""' f "" """
may, therefore, well be dn,.i,f .7"®"' ""fence alone. It
think itprude^^'iLtral:''"''"^''"''-'-''^
"It js obvious, also tbnt ;„
may allege the previou; conti^r "T T '''' P^<'»'=™'<»
where the p:«,f of the pre^J'^T "'■''^'"Jy '" '''^ «>»«
the prisoner can have nrarr;:!'?."™ ^''"^^- ^^ "-en
'o™ofts\:zr^rfr?~^
Act sec. 19 of our La^e ; 1 t 1: t'"'\^^-y
«ct,on IM of our Procedure Act 1,1^ "^ ^''^'"^^
section 116 of the Enoli^h I.rT / '■^Production of
^-o^ofindict^-i^^dTLtrtS-
760
PROCEDURE ACT,
f
I*
iiiii
given so that thesa remarks may be usefully inserted here,
as entirely applicable to our own law on the subject.
INDICTMENT.
' *o ^i*: The Jurors for our Lady the Quien
upon their oath present, that J. S., on the daj of
^- ^- 1866, one onk sapling, of the valuo of two
shillings, the property of J. N., then growing in certain
land situate in the parish of in the county of
unlawfully did steal, take and carry away, thereby then
doing injury to the said J. N., to an amount exceeding
the sum of one shilling, to wit, to the amount of two
shillings, against the foi-m of the statute in such case
taade and provided; and the jurors aforesaid, upon th^ir
oath aforesaid, do say, that heretofore and before the
committing of the offence hereinbefore mentioned, to wit
^^ *^« day of , A.D. 1865, at'.... '
in tho county of , the said J. S. was duly con.'
victed before J. P., one of her said Majesty's jus-
tices of the peace for the said county of for that
he the said J. S., on {etc., aa in the first conviction
to the words,) against the form of the statute in such case
made and provided ; and the said J. S. was thereupon then
and there adjudged for his said offence to forfeit and pay,
the sum of five pounds, over and above the value of the
said tree so stolen as aforesaid, and the further sum of two
shillings, being the value of the said tree, and also to pay
^^^ ^"°* °^ shiUings for costs : and, in default of
immediate payment of the said sums, to be imprisoned in
^^^ '»nd tJ»ere kept to hard labor for the space
^^ calendar months, unless the said sums should
be sooner paid ; and the jurors aforesaid, upon their oath
aforesaid, do further say, that heretofore and before the
' inserted here,
I subject.
iy the Quien,
daj of
3 value of two
ing in certain
antyof
thereby then
unt exceeding
mount of two
in such case
id, upon their
d before the
ioned, to wit,
5, at
aa duly con-
fajesty's jus-
for that
8t conviction
e in such case
lereupon then
rfeit and pay,
' value of the
5r sum of two
d also to pay
in default of
mprisoned in
or the space
sums should
on their oath
d before the
PBOCEDum ACT
iE the county of ., "" ^- °- "66, at
the said county „f ^^1 "T""' "' "'« I^^ to,
lecond oonvu>tUn inO^'JL. ^^- '*"*"» ««< <*«
V^ooeedik^s :) a„d ,"„ Z ZZ, T""*" "' '*^-^™« «»<«
"foresaid, do „y ,h.t thlZ^jT^' "P"" ""^^-^th
first aforeaaid. the said <^k 11; ' "^ *>«■ day and year
»™-g3. the p.„pe«, „f ZX,\ 1 '"^ '"''-' °f '-
8a.d land, situate in the parish „f"''^"'"«'"«'«
r"'^°' fi^oniou^y dVl;,-;;- '" r ""*
away, etc., against the form of f h. . , ' """^ "'"X
made and provided. '™"'® '" s>"=li a case
" 2nd Count And tho •
oath aforesaid, do further preseT.w.'!''"' "P™ 'heir
™rds, to wit. on the 7^ 't *° ""^ ''• «• "ft^'-
one oalc sapling of the v»I,Vr'f. ■*■ !•• 1866.
«f the said J. I th'n ;:':;/ :i»^'"'»f ">^ p^p^w
the said parish of """"am certam land, situate in
feloniously did steal,' tekrard '^'^ """"^^ "''
doing «j..ry to the said J N T"" ''^*^' "'^^''y then
the sum of one shUling, to wit "to th!" ™'""" ""'''"■«
hags, against the fom, of Zl , *"'°""' °' ''^o *"-
P»vided. And theLLaC'"'^ '"'"''' ««'»»deand
fd. do say. that he^td 'V^™ ""'" ""'"' «'"«-
tto offence in this count Zl^ ""* '«'°">i«i-g of
»a;d, upon their oath ahres^TZlTu. ''T'^'''^
Wore, and before the oom,„i.f' , , ' "*' *" here-
»"nt first hereinbeto e meS f "" °''"'™ '" '"«
day of A J) J86"'°"™<"^> *« *it. on the
ton as directed in thefirltZ,T) '^ '** '"*'"' "^"^
762
PROCEDURE ACT.
" A first and second offence against the 24 & 25 V., c.
96, 8. 33 (soc. 19 of our Larceny Act), are both punii^hablo
on siimniiiry conviction, hut a subsequent offunce against
that section is a felony. The 24-25 Vic, oh. 96, soc. 116
(sec. 139 of Procedure Act), enacts, that ' in any indictment
for any olTencn punishable under this act, and committed
after a previous conviction or convictions for any felony,
misdemeanor, or offence, or offences punishable under
aumiwiry conviction, it shall bo sufticient, after charging
the subsequent offence, to state that the ofl'ender was ut a
certain time and place, or at certain times and places con-
victed of felony, or of an indictable misdemeanor, or of an
offence or offences punishable upon summary conviction
(as the case may be) without otherwise describing the pre-
vious felony, misdemeanor, offence, or offences/ etc. It
appears clear from this enactment that it was intended that
the subsequent offence should first bo charged, and in both
counts of the above form of indictment that course lias
accordingly been adopted.
" It will be seen that the first count consists of three
parts : 1. The charge of the subsequent oflTence which is
charged as an offence, not as a felony ; 2. The charge of
the two previous summary convictions ; 3. An averment,
commencing, ' and so the jurors aforesaid,' etc. The reason
for charging the subsequent offence first has been already
given. The reason for charging it in the first instance as
an offence only is as follows : sec. 116, above referred
to, goes on to enact that 'the proceedings upon any indict-
ment for committing any offence after a previous convic-
tion or convictions shall be as follows (that is to say) the
offender shall, in the first instance, be arraigned upon so
much only of the indictment as charges the subsequent
offence, and if he plead not guilty, or if the court order a
24 & 2.-1 v., 0.
tth punishable
tfl'enco against
1.96, 80C. 116
ny indictment
nd coinmittod
or any felony,
nhahle under
i/ler chanjing
nder was at a
id places con-
anor, or of an
ry conviction
•ibing the pre-
ices/ etc. It
intended tliafc
1, and in both
it course Ims
sists of three
nee whicli is
'he charge of
In averment,
The reason
been already
t instance as
)Ove referred
1 any indict-
ious convic-
3 to say) the
[lied upon so
) subsequent
lourt order a
WiOOEDURE ACT
pJea of not guiJtv fn i * ^^^
"'"" "" »''«^8ed, i tlXnlZ" "" '"' """"'f' "•« jury
'''■fore, be „,ked who.h: 'h tadt^' ''" ""'" ""-■ ^
" ^° '^viouaJy convictc'd the' ?""" """ ''o h^d
»» l^viou,,^ -'onvictod.'^;'' ' 'f *■' "^r^ "">' 1.0 hud been
not answer directly to anch ''""t""'" "' "'""™, or win
^« «>-«ed to inquL CO ;„, r'*™' '"« J"y sh,!,! then
;; convctiona, a„d ;„ :,TZV:t T'""'' ""--"^
to swear the j„ry again bT„ f "'" •>" ''"^ssary
»not«nd «.epri.„„'|„ ;';»?-«••-' offence. The^
"%'« of the proceedinga, 1 hey {^/^''^'"'"S'" *al
prenou, conviction, and, the^' / r. '^"°""" "^ '"«
o.y find h,m g„i,ty <,f ^^e off n^of '^' '^^ ">«^ «">
If thoyfindhin, guilty „f the "'^, »f" "awfully stealing,
hen to inqni« „f ^^ p^™, "•''»*'•" stealing theya^
1.™ guilty of the preWou'I "'""='"""' '' "-/«»<!
?»'lty to them, the in»redie„r "'' "' '^ ''« pleads
t'e «ony, Which, however ?: "^'^ ^'"■'""»*
W expressly found. But /h. r ,, "' """= 'hey have
f : ■•■■"'o'-nt, -and s! th ^rot ? '"^ ""''^ ?-"
i-' part of the indictment, perharn T"" ' "'"■ ^W'
J»'y» so many words, as tLe veS oT r' "^ "'" '» ">«
^™'off-e, t<^ether with ^v ^t"'"/"'.?^^""-
veraict of guilty of the
ll
!•
^,
'B
{
764
PROCEDUKE ACT.
previous convictions, amount to a verdict of guilty of the
felony and would, as it should seem, authori^ the entry
ot such a verdict on the record. ^
"That the omission of the word ' feloniously ' in the first
part of the indictment does not vitiate it, see R. v Criah
t^n. R& R. 62, in which case an indictment for" embt
dement was held good, in which the word 'feloniously'
was omitted before the word ' embezzled/ in the first part
of the indictment, which, however, concluded, and so the
jurors say that the prisoner did ' feloniously embezzle, steal
take and carry away,' etc.
ol^tX^^^ "^ ^^-^' ^•' '' ^^' '' ^"^l^g«»« ^ Bee. 37 of
^mUned ^n sec. 139 of our Procedure Act,) and the
mode of proceeding at the trial above suggested was an
fi Cot itrv' ^.^^"^^"^^ ^'^^' ^' ^ - ^rZ,
counterfeit com, after having been convicted of unlawfully
uttenng counterfeit coin. The court held that, as sec. 37 of
itf J^'i' r. !.^'''- ''' '°^ '"'• '^^ «^«- I^^-«d-e
Act) regulated the mode of proceeding at the trial the
pnsoner must be first arraigned upon the subsequent
offence and evidence respecting the subsequent offence
must first be submitted to the jury, and the charge of the
previous conviction must not be inquired into until after
the verdict on the charge of the subsequent offence
"The second count varies from the first in charging the
subsequent offence in the first instance as a felony"^
Arckhold. ''^'
In the case hereinbefore cited of E. v. Mwrtin, 11 Cox,
-43, Lush. J., said that when he decided the unreported
case mentioned in Archhold as a different ruling on the
PBOCEDURE ACT. y-.
0-red with the ItTn r V""*"''""' """^ "» «»-'-
10 C^o.. 534. thenatan v L^^H' " ""■ I" '""""^'
&«, C 0. 20 be foil J 7 ^ ^ ^'" "»" -'*• ^- -ff^o",
oHhe .i. «ee«::^;;zt::^^::::t;- ^-e .act..;
indictment, and, if necesmrv ^,„ j /^ "" ""^ ^"n'e
V the afore.aid^ecXr^Tinnlo»r,r' '^ P™»^''
orown to increase the ^f "fl "^"7.™' "terror by the
appeal pei^ved tha U^Zfl^^i'"""' "' ""'"""^
provisions of seo 116 „f .T i " ''°°''<' "«" ">«
the indictment had been t,i d attT/"'' •"""" ^'"'*
prisoner, etc., had been neglld ITV""'^^' °'*«
the conviction. 'K'^ted, and, thereupon, quashed
In S. V. Spencer, 1 C /• »■ icn •.
indictment need not sta^' it / ' "^ ■■"" *»' ">«
tion of the wo«Is lenfn t^ '"™'' •"" ""^ '"""'J"-
the Procedure Act sTemr, " ~'^''- '" "'""'^ 1^9 of
-.w. i::r;rners,it;:-t
. JXr :i:irottri;trthr ^^^^
abated and the stl^te sfv" ?.""'''" ""«'" "^^^ I^^-
the substance and Z 71 ';""*«''« '^ »» »»»'-■»
for the previous osfZ r^n T°'""'''' "'"' ""-"""o"
perfect conviction *° '™''"™' ""ere is no
i
766
PROCEDURE ACT.
At common law, a subsequent offence is not punishable
more severely than a first offence ; it is only when a statute
declares that a punishment may be greater after a previous
conviction that this clause 139 of the Procedure Act
applies. So in an indictment for a misdemeanor, as for
obtaining money by false pretences, a previous conviction
for felony cannot be charged. — R. v. Garland, 11 Cox
224. And then this clause does not prevent the prose-
cution from disregarding, if it chooses, the fiact of a pre-
vious conviction and from proceeding as for a first offence.
But the court cannot take any notice of a previous con-
viction, unless it were alleged in the indictment and duly
proved on the trial, for giving a greater punishment than
allov/ed by law for the first offence. —iJ. v. Summers, U
€ox, 248 ; R. v. Willis, 12 Cox, 192.
. To complete the proof required on a previous conviction
charged in the indictment, when the prisoner does not
admit it, it must be proved that he is the same person that
is mentioned in the certificate produced, but it is not
necessary for this to call any witness that was present at
the former trial ; it is sufficient to prove that the defen-
dant is the person who underwent the sentence mentioned
in the certificate.— R. v. Crofts, 9 C. & P. 219; 2
Buss. 352.
By section 207 of the Procedure Act, it is enacted that,
if upon such a trial for a subsequent offence, the defendant
gives evidence of his good character, it shall be lawful for
the prosecutor to give in reply evidence of the previous
conviction, before the verdict on the subsequent offence is
returned, and then the previous conviction forms part of
the case for the jury on the subsequent offence.
It has been held on this proviso, that if the prisoner
cross-examines the prosecution's witnesses, to show that
PROCEDURE ACT.
SI 9, where Lord Campbell C T 7v' ^^"^P''^' ^ J)en.
of the court, said : .. It slf ,„'; * H™^*^ f^g-ent
necessary interpretation to be pnt tr, ,u ""''''' """'
proviso in the statute hat if 1 T u" *'"'*' <" «">
his counsel, the prison.; „« i '"'"' ''•'' ''™^«lf or by
either diree'tly, b^Xf^C S ^"f f"--'
examining the witnes Jfor th Sv J i. , ',' '^ "^^
prosecutor to give the nr„v,„ ' *" '""*' ''o'' 'he
the considerati'on ofte' ;." T:!'''''"' '" ^"'^'"^ f"
»ent Lord Campbell said tha^. J„ J* .7^ u "" "°°"-
evidence of a previous convic ;!n 7 ""''' ""' ^<'°'"
ecution, bein/asked brrSnlr:'"^"/" *epros-
tion which has no reference t" ter I'm T' '"""
aay something favomble to . • ZT^^l 't " ''"f »*" '°
n i» aaid in 2 ij„ss. 35^^ "Tt . '^""''•
the prisoner gives evidence of his Jo tCl *' "'^"
course ,s for the prosecutor to require 2 '^^^I^P'^'
court to charge the iurv with ,il ' ^ ""''*'■ "^ *e
then to put i^ the cScI a„d p^eT T"""™' '"'
prisoner in the usual way If T '""""^ "^ *«
evidence during the course'^f the 'aseTtr ''™^ "'*
then this should be done befor^ he tse f rtr""'"™'
tion closes ; but if the evidence nf i, proseou-
perjury, conspiracy, obtaininc.
O
I f !
768
PROCEDURE ACT.
money or other property by false pretences, forcible entry or detainer,
nuisance, keeping a gambling house, keeping a disorderly house, or
any indecent assault, shall be presented to or found by any grand
jury, unless the prosecutor or other person presenting such indict-
ment has been bound by recognizance to prosecute or give evidence
against the person accused of such offence, or unless the person
accused has been committed to or detained in custody, or has been
bound by recognizance to appear to answer to an indictment to be
preferred against him for such offence, or unless the indictment for
such offence is preferred by the direction of the attorney general or
solicitor general for the province, or by the direction or with the
consent of a court or judge having jurisdiction to give such direction
or to try the offence )
2. Nothing herein shall prevent the presentment to or finding by a
grand jury of any bill of indictment, containing a count or counts for
any of such offences, if such count or counts are such as may now
be lawfully joined with the rest of such bill of indictment, and if the
same count or counts are founded, in the opinion of the court in or
before which the said bill of indictment is preferred, upon the facts or
evidence disclosed in any examination or deposition taken before a
justice in the presence of the person accused or proposed to be accused
by such bill of indictment, and transmitted or delivered to such court
in due course of law.— 32-33 V., c. 29, s. 28. 40 F., c. 26, sa. 1 and 2.
Sec. 80, ante, applies to this sec. 140; and, held, that
if the magistrate dismisses the charge and refuses to
commit or bail the person accused, he is bound, if required
to do so, to take the prosecutor's recognizance to prosecute
the charge. — R. v. Lord Mayor, 16 Cox, 77. See ex
paHe Wason, 38 L. J. Q. B. 302.
This clause 140 forms in England the acts known as the
« Vexatious Indictments Act."— 22-23 V., c. 17 and 30-31
v., c. 35.
The following offences fall under this enactment :
Perjury,
Subornation of Perjury,
Conspiracy,
Obtaining money or other property by false pre-
tences,
I'fidCUDtjfiE ACT.
769
peeping a gambling house.
peeping a disorderly housJ. '
•Any indecent assault
«. page 5: . fI™ rtr/'^ '"-g-eo.-.^,^
J"y for a„y crime, wi.ho^C;';^:..:'''" '"'"^ " ^™'«'
J..st.oe mto the truth of .ocn^ZolT '"^^ "^'"'o «
»»■* abuaed, because, as th7 - / "^^' ""^ "'*»
ovdence for the p«>sec'u,^ „ ^Xh '"' ""'^ ''«'' «>»
unrepresented before them i't fl *"™""^ « 'otaUy
r^rson wholly i„„„ce„t"f tL 2"'°^ ^ '"P^^"^'' ""'»
and who had no notice that aav °™''^' ."""''' «»"»« him,
be instituted, found that a IZf^f T "'"' '"'™t '»
«"<• a true biU against L^": f ."---Ouced to
acter and put him to great evl _. "'■''"■* '''« »har-
defending himself agah,st a ^ ''r"* '""""^-ience in
above provisions hafe ten tZd " "™"«°»- ^he
degree to remedy this state" tt at"^' "" ""'^^ '" ^""^
The Imperial statute requires th»t ,^ • ^■
authorized by a judge, or by Z T "'*'^""»t. when
tor general, should be pXtd TT'/'"'''^ "' ^*i-
the consent in writing, of such ;J '^'«*'™. o-- Wtt
or solicitor general. Though th« » ;.°'' """'"^8™*'^'.
omitted in our statute, thf^ t J"? Z' '» »"«"8" are
P^ofofsuoh a direction w;,\^"f-^' 't"' ^ ^^'^
jnry, and that this direction "st hi '"" '"' '^' g""""
terms of the clause itself any iXf f "" """'"«■ ^y 'he
toi» to try the o,renc;iS e ST^''.^"''""^''""-
"any judge authorized to d^rfcl tht '""""' "' "<=«
perjury before him be presecutd I " ^'*"' 5^"'"^ "f
P 42, TOfe. prosecuted, under see. 4. of c. 154,
770
PROCEDURE ACT.
10
If;
It is not necessary that the performance of any of the
conditions mentioned in this statute should be averred in
the indictment or proved before the petit iury.—Knowlden
V. a. (in error), 5 B. S 8. 532; 9 Cox, 483.
When the indictment is preferred by the direction in
writmgofajudgeofone of the superior courts, it ig for
the judge to whom the application is made for such
direction to decide what materials ought to be before
him, and it is not necessary to summon the party accused
or to bring him before the judge ; the court will not inter-
fere with the exercice of the discretion of the judge under
this clause.— ij. v. Bray, Z B. & 8. 255 ; 9 Cox, 215
The provisions of the above statute must be' complied
with in respect to every count of an indictment to which
tljiey are applicable, and any count in which they have
wot been complied with must be quashed—ii v Fuidqe
1 b. bo It an indictment contains one count for obtaining
money by false pretences on the 26th of September"
1873, and another count for obtaining money by false'
pretences on the 29th of September, 1873, though the'
false pretences charged be the same in both cases the
second count must be quashed, if the defendant appears to
have been committed only for the offence of the 26th Sep-
tember. ^
Where three persons were committed for conspiracy, and
afterwards the solicitor general, acting under this clause
directed a bill to be preferred against a fourth person, who
had not been committed, and all four were indicted tooether
for the same conspiracy, such a course was held unobjec
tiona.h\€.^Knowlden v. R (in error), 5 B. dt S 532' 9
CoXf 483. '
Where it is made clear, either on the face of an indict-
iireciion in
ts, it is for
le for such
' be before
trty accused
I not inter-
udge under
>», 215.
)e complied
it to which
they have
V. Fuidge,
iK 15 Cox,
)r obtaining
O
September,
T by false,
hough the
cases, the
' appears to
! 26th Sep-
piracy, and
;his clause,
ersou, who
ed together
d unobjec-
8. 532 J 9
an indict-
i:
PB0CEDT7BE ACT
even after he has pleXd W T °' "■' ■^^''^^-'^
wm leave hi™ ^.^l^^^^i^^Z'^ '"f'"' -e, the;
M7 ; 9 Cox, 433. «"«■•— A v. Beam, iS.ss
Act, when the maitXl'""*''r- 80 of the Procedure
«I for t.a. the ^0:^^ ""JT^ =-»'' ^ ">
the prosecution or have his%»L ^^ 8° »» ^i*
would defeat the object of the ^7^ '°*''^'' "^ "
™ve to have hia reco<,ai™„ce w \ ' ""*' """"ed *»
5-.wm, 2 /; <fc jt; yg"'"™""'' d"oharged..-iJ. v. ffa,-.
BM, that where one nf fi,
mentioned in thie section i,,! ^'""'"'''"3' formalities
Q-n's ooun3eUhen:i;;rrow;l'; ''"""'"' "^ "
» the name of the ^■.U>lTj^^ZlxT''T' "" '""'
The attorney-general or soliciLf , ""' snfficient.
thedi,ection.-^6«W*t ';f-~^«'ono ■=»» S've
A person proseeutingTnder^t ^n"' ,' f ''• ^^^ "•
Act, has no right to ^ replent A °' ""■ ^'■°°«''»'-«
than the ..presentative SThe If '' ""^ ""''' """"^el
« 4«o«r, 5, M. L. 469 ^""^ g»eml.--7J. v.
Attempting to obtain monev bv f„i
come within this section -B^nf '^"''^'"^' ''<'<'' "ot
As to the interpretatLotsub-frn^!,' '^: ''■
PLEAS.
^ ' '""' '' "« court, before whio),
772
PROCEDURE ACT.
any person is ro indicted, upon the application of such person, or
otherwise, is of opinion that he ought to be allowed a further lime to
plead or demur or to prepare for his defence, or otherwise, such court
may ^^rant such further time to plead or demur, or may a<ijourn the
receivingor taking of the plea or demurrer and the trial, or, as the
case may be, the trial of such person, to a future time of the sittings
of the court or to the next or any subsequent session or sittings of
the court, and upon such terms, as to bail or otherwise, as the court
seem meet, and may, in the case of adjournment to another session or
sitting, respite the recognizances of the prosecutor and witnesses
accordingly, in which case the prosecutor and witnesses shall be
bound to attend to prosecute and give evidence at such subsequent
session or sittings, without entering into any fresh recognizances for
that purpose.— 32-33 V., c. 29, s. 30.
See sees. 273 and 274, post, as to special provisions for
Ontario, in cases of misdemeanor.
^ Formerly, it was always the practice in felonies to try
tlie defendant at the same assizes; 1 Ghitty, C. Z. 483 ; but
it was not customary nor agreeable to the general course
of proceedings, unless by consent of the parties, or where
the defendant was in gaol, to try persons indicted for mis-
demeanors during the same term in which they had
pleaded not guilty or traversed the indictment.— -4 Black,
stone, 351.
Traverse took its name from the French de travers
wliich is no other than de transverso in Latin, signifying
on the other side ; because- as the indictment on the one side
chargeth the party, so he, on the other side, cometh in to
discharge himself. Lambard, 540.
The word traverse is only applied to an issue taken
upon pn indictment for a misdemeanor; and it should
rather seem applicable to the fact of putting otf the trial
till a following sessions or assizes, then to the joining of
the issue ; and, therefore, perhaps, the derivation is from
the meaning of the word transverto, which, in barbarous
Latin, is to go over, i.e., to go from one sessions, etc.,
inch person, or
further lime to
vise, such court
ay aiijourn the
rial, or, as the
! of the sittings
I or sittings of
je, as the court
»ther session or
and witnesses
esses shall be
3h subsequent
lognizances for
I'ovisions for
lonies to try
L. 483 ; but
leral course
53, or where
ted for mis-
1 they had
. — 4 Black.
de travers
, signifying
the one side
)meth in to
ssne taken
it should
tf the trial
! joining of
)u is from
barbarous
sions; etc.,
PROCEDURE ACT.
to another and th • ^'^^
f^ tie ,Uy whetirJV'tld?/?"' "' '"^ ^"^
raverse over to the next se^^ "^ "'^''> »' "'"
«%, to obtain deCtraXl"? ^««8«'-» ami-
lexieon, verba -imparl" "'■'"'""'"t.- Wharto',.; Uw
The above section of onp P.„ j
tie «0 Geo. HI. and 1 Geo Ty " V" '' "» f™'"
te 1W5 v., „. 100, ,. 27 anJVv L^- ' """ 2. and
lanct,ona between felonies and! f""'' "^l ""e^e dis-
On the 14-13 V „ Iftn ""^'^e^'eanors.
'• Tl.is section i; •„,,„;;, VJ',,f--- aaya ..-
vows, which were found (» II • """^ *''th tra-
«licious p^ecutor could f^rT """='" *"J"^«ee. A
frivolous assault found by thr^^.^"' * •"» ^^ any
Wendanttobe apprehended d„/"i;l j";7. and cause thi
«nd then he was obliged to tmve mT"^ "' ""^ "'""''
'"™'' as he could not compel th„ ""' *'^*'™ »>•
«"e at the sessions or assize, »f ,. f '^'""»'' to try the
Jhis led to the expense of thell^" ^ ""' "as found.
fee., which opemted as a'^.; hlr^T"'"'* '"" «"»*/
notunfrequently an innocent prl^" "" ^ "^f^dant,
'» "any instances, has beenabL; f^""' "'e defendant.
«» into a means of implerit f™ ""■' "S^tto tra-
.•"^Pense and inoonveniencrTh'/?"'"" ""= P«»eo„tor
;to abolish tmversea ^iZZ^ITTT''"'^"''"-
«ely on the same footinr^Thl " "''^'^^"'^anors
" felomes, the prisoner has no ^* . '*'" ^ ''^'''■"es.
---.o".op.,„;:;-^l-^.3t„^^^
774
PROCEDITBE ACT.
if
trial. Under this section, therefore, no defendant in a case
of misdemeanor can insist on postponing his trial ; but the
court in any case, upon proper grounds being adduced, not
only may, but ought to, order the trial to be postponed. If
therefore, a witness be absent, or ill, or there has not been
reasonably sufficient time for the defendant to preparo for
his defence, or there exist any other ground for believing
that the ends of justice wiH be better answered by the trial
talviijj place, at a future period, the court would exercise a
very sound discretion in postponing the trial accordingly."
There are several cases in which, upon a proper uppli.
cation, the court will put off the trial. And it has been
laid down that no crime is so great, and no proceedings so
mstantaneous, but that the trial may be put off, if sufficient
reasons are adduced to support the application ; but to
grant a postponement of a trial on the ground of the absence
of witnesses, three conditions are necessary : 1st, the court
must be satisfied that the absent witnesses are material
witnesses in the case ; 2hd, it must be shown that the party
applying has been guilty of no laches or neglect in omit-
ting to endeavor to procure the attendance of these
witnesses; and, 3rd, the court must be satisfied that there
is a reasonable expectation that the attendance of the
witnesses can be procured at the future time to which
it is prayed to put off the trial.— i2. v. D'Eon, 3 Burr
1514.
But if an affidavit is given that, on cross-examination, one
of the absent witnessses for the prosecution who has been
bound over to appear, can give material evidence for the
prisoner, this is sufficient ground for postponing the trial,
without showing that the defence has made any endeavour
to procure this witness, attendance as the prisoner was
justified in believing that, being bound over, the witness
would be present.— i?. y. McCarthy, C. & M, ^1^.
lant in a case
trial ; but the
adduced, not
postponed. If
has not been
> prepare for
For believing
d by the trial
lid exercise a
iccordingly."
)roper uppli.
it has been
•oceedings so
r, if sufficient
ion ; but to
'the absence
Lst, the court
are material
liat the party
set in omit-
ce of these
d that there
ance of the
ne to which
m, 3 Burr.
PROOEDDRE ACT.
In Ji. V. Savage 1 C. ^ jr ^n u
affidavit stating what points the IL.' °°"'' ''^"''"^^ ««
ed to prove, so as to form 'n „• ^°' ^^^"««« ^as expect.
being mater.,1 or not. '° '^'"^°" '' '^ the witness
affidavit to disclose all that tL I ' '' "°' '^"^"^^ ^^ his
to. but he must show tW tht ah f ^^'°^^« ^^" *««tify
prove some fact whichXte .ul 7;'"" '' ^'^^^-^ '^
he mustalso show the probabi i "orh^ '' ^^ '' ^^« J-y;
alaterterm.^/^. , i^oV^' sY^'^r^"^'"^^-^
The court will postpone until tt '
of a prisoner charged with murder n ''"''^ "'"*''' ^^^ *"»!
mother that she would be enabled V ^" '^'^^"^"^ ^^ his
nesses that he was of un.nnnH . ^''°''^ ^^ ««^eral wit-
family were in extreme pTv:!^ «he and her
procure the means to produL fu'ch "^ '''° ""^^^^ '<^
had reason to believe that if Hn '^'^"^^''«««' and that she
requisite funds would be prov d^d ""? ^'7° '" ^^^' ^he
Coaj, 353. i^'-oviaed.—ij. y. Langhurat, 10
But the affidavit of tho nr;
the infom-ation he had reo ivrdtrr^^L'^'"'"^" '"^"^
aent.— /rf«n. """ ""= ""'her, is insuflj.
Upon an indictment fop « ™. j
the eourt wiU postpone he IT T°"^ " """•'W.
prisoner's attorne/that 1 hlf ;otTi '""''''"' "' ">«
prepare for the defence the aLT > ""^'"^'■' «">» t»
^ of a g„«, gronnd^tf n^r^'r;"T '"^ P"-"
340. '^- ^. V. Taylor, H Cox,
If the application is made by th« ,^nC a
776
PROCEDURE ACT,
IlL i
ration of the circumstances of each particular case, to detain
the defendant .n custody, or admit him to bail ;r to di
charge him on his own recognizance ^R v n /
7ctp 700' V' T^' ^ ^- '^ ^. 782 ; i?. V. Osborn
7C.SP. 799; M. V. Bridgrmn. C. d: M 271 li„f
as a general rule, after a bill has been found, if the offen '
be of aenous nature, the court will not admitthepiiso^
9^17128 • i"'"r ' n ^ ''• ''' ' ^- ^- ^"W
9 C. <£• P. 509; 5 £«r», 1032 ' * ^- ^^ ' -"• "• ^S"""*.
trial, on the request of the defennp if ,> o ''"P^"^"^' "^e
to iustice ff \ wi '*®^^°''^' " ifc appears necessary
10 ju&tice.— i,;. V. Flannagan, 15 Cox, 403
On the finding of an indictment for perjury aoDHpnf,-.
neM.—Th&t he should submit to the jurisdiction of ti,
«.urt. and appear himself, bef.re he eln be ow/;
toke^any proceedings therein._ij. ,, Ua^,u, 10 I. 0.
o "to™i:t"r ™:;' „"? 'jrr "^ "°"°° °^-^ ■'"«^-. p^™
-d sball 0..1 upon uch " rll °.^ n.ri't T""'"" '» "'= """■.
orX^^Iittr™'"'''^^'''^--^^---'-^
4icrd:d''^''^'^"''^'''^^*----™es
The name of the prisoner is not a matter of essential
1'
. '•BOOEDURi: ACT.
"f "- Snu^'^lnr''™ "'""^ """'"-on to .ho „.
^" -fi. V. Orchard R n j n
, ■"• ^M tliQ record ,., ** "'^^crjbed as "A ♦!,
word " widr^,„ .» . ^^'^o^a was amenrfnw k • '' ^^o
»f misnomer L ^ i° '""■•• " C * ^15,'^ '""'"'"'•
»iay be amended in fh ' "" ^^""^ a pJea in «u Z^'^'-
-n;ea.„e„:r^--..c«r,:i-^
J/ cne 4 Anne, c 7ft
dilatory plea shall L 'J '' ^^' '^ « enacted ti. .
-^^ p^- <io by affid^virr"''' '"^^- "^e pt, y ."^
"' abatement fo an ildf ?'' '^' ''^'^ ^he^^eoZf ^
rrntooraecompan:^"!''"' "^^ ^« set :^-de" r'^'f
3 5?MT 1617. »!r^^*» affidavit--/? ^' " "^^
If «'e name of tlm /, . ^' ^' ^^3. ^'^'
I Pi
j«uJ**y\
778
PROCEDURE ACT.
per3on whose name is to the jurors unknown, but who was
personally brought before the said jurors by the
keeper of prison," will be sufficient. — R. v. .,
R. <fcr.. 489.
Whatever mistake may exist in the indictment, in res-
pect of the name of the defendant, if he appears and pleads
not guilty, he cannot afterwards take advantage of the
error.-- i Chit. 202 ; 1 Bisho'p, Gr. Proc. 677.
As a rule, the plea in abatement must be pleaded before
any plea in bar when the prisoner is arraigned ; 2 Eale,
175. But the court may, in its discretion, allow the with-
drawal of the plea of not guilty, so as to allow the prisoner
to plead in abatement or to the jurisdiction or to demur:
Kinhck's case, Fast. 16 ; R.y. Purchase, C.<£;M.6l7.
And; this is entirely in the discretion of the judge, who
should allow it for the purpose of substantial justice, but
not to enable the prisoner to take advantage of a mere
technicality. — R. v. Turner, 2 M. <& Rob, 214; R. v.
Brown, 1 Den. 291, R. v. Odgera, 2M.&Rob. 479.
Buhop, 1 Cr. Proc. 884, says, that by a plea in abate-
ment, the defendant can avail himself of the objection that
the grand jury finding the indictment consisted of more
than twenty-three members.
143. Every objection to any indictment for any defect apparent on
the face thereof shall be taken by demurrer or motion to quash the
indictment, before the defendanthas pleaded, and not afterwards; and
every court before which any such objection is taken may, if it is
thought necessary, cause the indictment to be forthwith amended in
such particular, by some officer of the court or other person, and
thereupon the trial shall proceed as if no such defect had appeared ;
and no motion in arrest of judgment shall be allowel for any defect iu
the indictment which might have been taken advantage of by
demurrer, or amended under the authority of this Act.— 32-33 V., c, 29,
3. 32.
The Imperial statute, from which this clause is taken,
reads as follows :
'"' I
PnOCEDURE ACT.
779
Every objection to any indictment for any formal
defect apparent on the face thereof shall be taken by
demurrer or motion to quash such indictment before the
jury shall be sworn, and not afterwards ; and every court
before which any such objection shall be taken for any
formal defect may, if it be thought necessary, cause the
mdictment to be forthwith amended in such particular by
some officer of the court or other person, and thereupon
the trial shall proceed as if no such defect had appeared."
—14-15 v., c. 100, s. 25.
Greaves says on this clause: " Under this section all
formal objections must be taken before the jury are sworn
They are no longer open upon a motion in arrest of judg-
ment or on error. By the common law, many formal
defects were amendable; see 1 Chit. 297, and the case3
there cited ; and it has been the common practice for the
grand jury to consent, at the time they were sworn that
the court should amend matters of form._2 BawJcins,
c. 25, 8. 98. The power of amendment, therefore, given in
express terms by this section, seems to be no additional
power, but rather the revival of a power that had rarely, if
ever, been exercised of late years."
A motion for arrest of judgment will always avail to
the defendant for defects apparent on the face of the indict-
ment, when these defects are such that thereby no offence
m law appears charged against the defendant. Such an
indictment cannot be aided by verdict, and such defects
are not cured by verdict. As said in M. v Waters, 1 Den
356 : " There is a difference between e..v indictment which
IS bad for charging an act which, as laid, is no crime, and
an indictment which is bad for charging a crime defec-
tively; the latter may be aided by verdict, the former
cannot."
I ! t
780
PROCEDUEE ACT.
!*<:
Defects m matters of substance are not amendable so
If a material averment is omitted the court cannot allow the
amendment of the indictment by inserting it, for the very
good reason that if there is an omission of a material aver
ment, of an averment without which there is no offence
known to the law charged against the defendant, then
strictly speaking there is no indictment ; there is nothina
to amend by. ''
In a criminal charge there is no latitude of intention
to include anything more than is charged; the charge
must be exphcit enough to support itself. Per Lord Manl
held, R. V. Wheathj, 2 Burr. 1127.
The court cannot look to what the prosecutor intended
to charge the defendant with ; it can only look to what he
ha^ charged him with. And this charge, fully and clearly
defined, of a crime or offence known to the law, the indict
ment as returned by the grand jury must contain. If the
indictment as found by the grand jury does not contain
such a charge, the defect is fatal ; if the grand jury has
not charged the defendant with a crime, it will not be
allowed, at a later period of the case, to amend the indict-
ment so as to make it charge one.
' It must not be forgotten that when the clerk of the
court, on the gi-and jury returning the bill, asked them to
a^ee that the court should amend matters of form in the
indictment, the grand jury gave their assent, but on the
egress condition that no matter of substance should be
altered. Who are the accusers on an indictment ? The
grand jury, and to their accusation only has the prisoner to
answer. This accusation cannot be changed into another
Ch^. 298, 324. And if they have brought against the
prisoner an accusation of an offence not known in law, the
PKOCEDURE ACT
court cannot turn it into an off / ^^^
-^to the indictment. °^^"" ^^^^ ^- lav., by add.
defeota apparent on the fa J„f I'^'T J"""^ '"^"e, for
l^'^not the power to amTnd .^ l'^"" "^"^ «■« court
"■ofon for arrest of j„d^';', '^., '^'^^ or omfesion, the
"' heretofore. And thfe^tal ^ ,7"' '" "-^ -^^^ndan
tte court luis not the power! '"'^ '"PPo^^s cases where
•Jonaof^on i„ arrest 'fX,r::t, l'""'' ^^'^'^ ">"
defect m the indictment wiioEL? ^ '^'"^"^ '<>' ™y
tegeof by demurrer, or amid f '"^ '*^'"»'ken advan
"««<*,•' given certan^ to u°d ^l" ""^ authorit/o/
-■^est of Judgment shaU be aSf . / "■"' "=» """o" fof
"Actment which could „ot h, ! '" ""^ ^'^ ect in the
by demurrer or amended uld^h"' "™ ^''-"ntage o
feavmg the question reduced to w* T""""'^ "ftkis^Jl
eems, very easily answered -^wl ' r"'"" ""^ K it
'eference to the amendments II ^ '' """ '^'""^e has no
22' »« 238. see ^o7 ^ rd"""'^^'""^- "y-c^fons
"PP^rent on tke face of 2llr' ^^'"'^ '» defects
consequence, be the subject of „ '^'f !^"'- ""d cannot, i„
'»'='"• Then the only o tt ri T °" '" ''™»' "^ mI
--dments is this section IsTd *' """ '^'"4^
f™»dn,ents in matter of si, "'""^^"'"''""■ofi.e
''"'"•/-"Stance, if the word^;:"" r*'"™' '" «>e
»™t for felony has been omtoed t ""^ "" "" '"*<"-
782
PBOCEDURE ACT.
And in an indictment intended to be for burglary, the
word " burglariously," if omitted, cannot be inserted by
amendment. It would be charging the defendant with
burglary when the grand jury have not charged him with
that offence. And in an indictment intended to be for mur-
der, if it is barely alleged that the mortal stroke was given
feloniously, or that the defends i murdered, etc., without
adding of malice aforethought, or if it only charge that he
hilled or slew without averring that he murdered the deceas-
ed, the defendant can only be convicted of manslaughter.
—1 East, P. a 345 ; 1 Chit. 243 ; 3 Chit. 737, 751. And
why ? Because the offence charged is manslaughter, not
murder. And the court has not the power by any amend-
ment to try for murder a defendant whom the grand jury
has charged with manslaughter.
And even, in the case of a misdemeanor, on an indict-
ment for obtaining money by false pretences, if the words
" with intent to defraud " are omitted in the indictment,
there is no offence charged, and the court cannot allow
their insertion by amendment ; R. v. James, 12 Cox, 127,
per I,ush, J. ; see Archbold, 60. So if a statute makes it
an offence to do an act " wilfully " or " maliciously " the
indictment is bad if it does not contain these words ; R. v,
Bent, 1 Den. 157 ; R. v. Ryan, 2 Moo. C. C. 15; R. v.
Turner, 1 Moo. C. C. 239 ; it does not charge the defen-
dant with a crime.
And whether the defendant takes advantage of an
objection of this nature, or not, makes no difference. Nay,
even after verdict, even without a motion in arrest of
judgment, the court is obliged to arrest the j udgment, if
the indictment is insufficient.— i2. v. Wheatly, 2 Burr.
1127; 1 Chit, 303; R. v. Turner, 1 Moo. C. C. 239; B.
V. Webb, 1 Den. 338 ; see also Silk' Case, Dears. 132.
PKOCEDURB ACT.
783
no indictment at aU or TLT'"' *^ '"<'"='»™'
the defendant wi.h "; r^e jroff™': "'*'""^'" "''-«-
Qfc:teidTt':\---r;rr''"
under sec. 246 * "■^* ^ee, ^^os^,
A.veMiot of goiuy'jafgLfcrr^' rK"""'^--
opinion tl>at the indictment was' deL """' ^^« "'
that words material to .t T""""^ ""''»*«<«, and
charged were omit ed he ei^ ~r° °' *''^ "*-'-
the judgment and onaTh tto'ind w ! """"^ '° ™«'
ecutor invoiced 3ec;?on1;2 now riTs' IZ'V'' ^"^
Act, and contended that tl,„ °'^""' I^™edure
the objection. Undo "hldt Ttl" i 7, ""' '* '» '^'^^
at first demurred to the Col f <."'™' '^'^ ^"'^
have quashed it and wo^^d f ^"'""^ ^^"""^ *ould
amended. Sections 128 aniaih" """^'^'^ '"° ^
after verfic: an indictment 1,, ^ ?'*"« """' ''™''
for want of t,e ..t:':^^:',^^:^^ ''f'-'^^m^.t
''e proved, cannot be made toXTr! "' "''^■'""■2' ^
averring a matter ^^ZlTo I fl '^ '"*''""^"' ™'
that a verdict on such mdicLen wm „Tt ^" ^^r"^ °'
Section 143 leaves the law of 1 " '^"''''"^''■
at common law. It Kve!Tn fh . """'' "'"" ^' '»
allowing or refusing ft menlV"^^ f .*--«- "f
»»bsta„ce, no such Lendrnt can b' 7 ". "^"^ "'
gularity may be amendable b« a null , *"^- '"' ^'^-
'■• has been held, that the court iteef'' " ""'"'''"''■ ""^
"ill refuse to Iry an indictmpr 5 ^"^'^ '""''^
J"<l«™e„t can e rende^d r^"""?,"'' ^'^'"'^ »" ^ood
784
PROCEDUKE ACT.
The
ruling in the case of M. v. Mason, 22 U COP
246 is not a contrary decision. The concluding remarks
of Gwynne,. J., show that the court in that case never
went so far as to hold that no arrest of judgment or rever-
sal on error should, in any case, be granted for any defect
whatever in the indictment, apparent on the face thereof
What can be gathered from these remarks, taken toaether
with those of Hagarty. C. J., is, that it was there'' held
that the objections taken would even not have been good
grounds of demurrer, or that if they had been raised bv
demurrer, the court would have had the power to amend
the indictment in such particulars, and that, therefore
the defendant was too late to raise these objections after
verdict. And this ruling is perfectly right.
As remarked, ante, if the defect is one which the court
could amend, the objection must be taken in limine litis •
a plea of not guilty may then be a waiver of the rjaht to'
take advantage of such a defect. But if the indictment ig
defective in a matter of substance, a plea of not guilty is
no v/aiver. Nay, more, a plea of guilty is no waiver and
does not prevent the defendant from taking exceptions in
arrest of judgment to faults apparent on the record -1
Chit 431; 2 Hawkins, 466. The court, as said before
cannot allow an amendment adding, for instance, to the
offence charged, or having the effect to make the' indict-
ment charge an offence wlvre none, in law, was charged
or to cha:^/e the nature of the offence charged bylhe'
grand jury, and the statute obliges to demur or move to
quash before plea, only for objections based on amendable
defects.
It is true, as remarked by the learned judge in R. v.
Mason, that the last part of this clause of our statute.*
taking away, in express words, the motion in arrest of
PROCEDrJHE ACT.
jiic^gment, is not in fi. t ^^^
'^ ^"O", «nte. that Mr /"'""''' """"'' '"" ■'' ''i"
''•* clause, is of „,inTo„ an^' "'>° ''"■''^d "- E„.'
it h"' the same effec" L T" '""""" ""o^e words
".^ E,.«,sh Act, e!::; ■::*;;/ r '^--''"^
Another differpnop hof ""^fP'^^ted otherwise.
™.* 6./0.. ./«:;':^~; r r'^ ™-'^" - '-
Ac=ynstead of ^i * ' t:!^! '" ""^ ^»«''-
English ono. This is not ■,„! ''" "™™ i" tho
I" »" eases, a demur e^L^ Tf",' °'^"'^' ""-"'-e
° "notguiUy," though th sa ' J"^*" "^^ «'- pl.a
of fte motion to q„ash._ ^ ''"1 ^^ ""' ^'"""^ »« »aid
f Judge may alio, a p,ea of f^^' , ''''"' *''• '^""
<l»vn m orfer to give the drfenda, t V ^^- " '" ''' «"'■
»■■ '"ove to q.ashfor any substt ,^' "«'" '" ''«'""•
""'fe-- lext section. ^ '-""tait^I defect. See cases
«,fa on the omission rf < f„r„lif fr °°'"'"'' '° '"'« ■■-
1^-15 v., c. 100, s. 25. If con trid ; *^*°' ' '" «'«
''«'er ae new clause, a man mthTh T'^^ '" «'» "=™3
«nyno crime, because he wmo i' "''" ''"-'""«'«
«eet in the ^aUment oftleoZ ^"°'!"' '° P^™'™ "'«
If the indictment does n'f I '" " ''""■"
»-t cannot amend k so as to m,4e -f „r °*"°^' ""=
«/» ^pp. Cos. 188 ■ • ' ■'^- ''■ R'-gnur, Mam.
■•J.trtr-ss «-.-;-
786
PROCEDUKE ACT.
I!f^
M'
•'Hi
Everything that is necessary to constitute the offence
must be alleged in the indictment. — M. v. Bourdon, 2 M.
L. 713.
On an indictment for defrauding a bank, the indict-
ment was amended by adding the words "a body cor-
porate." — R, V. Paquet, 2 L. K. 140.
Defendant was indicted as mistress of a certain wirl
called Marie. At the trial, the indictment was amended
by striking out that she was such mistress, and insertino-
the girl's right name.— i2. v. Bissonette, 23 L. C. J. 249.
See also B. v. Leonard, 3 L. iV. 138.
An indictment for perjury, based on an oath alleged to
have been made befpre the "judge of the general sessions
of the peace in and for the said district" instead of
" before the judge of the sessions of the peace in and for
the city of Montreal," may be amended after plea.— ^. v.
Pelletier, 15 X. C. J. 146.
It is not a misjoinder of counts to add allegations of a
previous conviction for misdemeanor, as counts, to a count
for larceny ; and the question, at all events, can only be
raised by demurrer or motion to quash the indictment
under 32-33 V., c. 29, s. 32. And where there has been
a demurrer to such allegations as insutficient in law, and
judgment in favor of the prisoner, but he is convicted on
the felony count, a court of error will not re-open the
matter on the suggestion that there is a misjoinder of
counts.
Where a prisoner aiTaigned on such an indictment pleads
" not guilty " and is tried at a subsequent assize when the
count for larceny only is read to the jury :
Held, no error, as the prisoner was given in charge on
the larceny count ordy.—B. v. Mason, 22 U. C. C. P.
246.
I in charge on
PfiOCEDURE ACT.
I)efendant was convJ f ^ ^^^
•1". ««,..,, ^,-S," " " ;-»■•»« .i.«^„„
2=J' •'•"''»"---".- Sis;
■Sfrf<^, that the defendant h. •
"'ent could not. in an"* of "^T' ^'"^"^ '^ "» indict
bad as charging hin> w L' tf "'' ""^'^"^ """ i' was
have been feloniously st„jl "« S"""^ not alleged t„
f'o verdict under t.fe T:^ ^, " "^^ot was aid^ed by
fact of three different offence' bef„ " t ''' '• 3^' ™<i the
men , ,f objectionable at ^ „u,d f f k"^'" '" ^^ ■»«='
of after verdict. '' """M »»» be talten advantage'
An order for an evf™ • °
S--. e. 92. 3. 3, is IZ 'ZIZ T"" ^- «• ^^- «•> 3d
of the udeeq Th ^ ^" "^^ sianed hv a r« • •
139. '" '^'^«"-«v.e«,,_°jj;'^yj-^omy
An indictment charged that fh» •
a^d carry away. etc.. withoutct ^"'°"" "'''' ^'^^'^ ^^^
fe'o-ousiy. Before pleac^n^Va ^S"' ''"' '' "^ -^o-
to quash the indictment Afte/ ™'"=°""»«'n'oved
J«Ige alWed the indictment teh '"^'"°"" ""^ P'esidin.
^- "■ 20, .. S2, by addiZ tl ** *"""'''='^> "»''«■• 32-31
F.3o,.r was found ^ tl^ " '^'"■"'"■^'^•" ^1!
/''W, on a case reserved Tth "'"?''''' '"*'="»'=»'•
' e word fdonimdy was bad t /^u '"'^■'="nent withou
abe under tbo o.-j " ^"^ 'hat it was n„f .
p ,. „ f„™ '""' section.--ne a„. . ' ""^nd.
144 If '
"Po» the count,, for UT^Z fr'"' ^' '^^'"^^ '« We ^A' * '^^
orderajurvfor !.»/ /^^'' and the court rnav in ti P"^ himself
,33 '''"'''»'™'of.uchpe.„„.„^J5,";>- -".l..,a„„er,
^^"3 Clause is taken from th. t
'•> c. 2^, 3. 1. ''°^ ^^« imperial Act, 7S Geo.
PI
i
IV.
788
PROCEDURE ACT.
Formerly, after the prison - had i-Ieaded <' not gui. y,"
he was asked by the clerk : " How wilt thou h hied ? "
To havo his trial, he had to answer, if a commoiu By
Ood and the country ; " if a peiT, "By God and my ee>w."
If he refused to answer, the indictment wr s taken ^)?'o
confesso, and he stood convicted.— 4 Blackatone, 341.
Plea of guilty allowed to be withdraw n.—iil. v. Ilud-
dell, 20 L. C. J. 301. See R. v. Brown, 1 Den. 291
and cases there cited ; also, Kinloch's case, Fost. IG.
145. If any person, being arraigned upon any indictmeiu for any
indictable offeni , stands nnite of irmlice, or will not answer diiLotly
to the indictment, the court may order the pi .er officer to enter a
plea of" not guilty," on behalf of such person, u: the plea so entered
shall have the same force and effect as if such person had actual! v
pleaded the same— 32-33 V., c. 29, s. 34.
This clause is taken from the 7-8 Geo. IV, c. 28, sec. 2
of the Imperial statutes.
Formerly, to stand mute was to confess, and, if the
defendant stood mute of malice, he was immediately sen-
tenced.— 4 Blackstone, 324, 329. In the case of li. v.
Mercier, 1 Leach, 183, the prisoner being arraigned, stood
mute. The court ordered the sheriff to retitrn a jury
instanter, to try whether the prisoner stood mute obstin-
ately, or by the visitation of God. A jury being accordingly
returned, the following oath was administered to them:
" You shall diligently enquire and true presentment make
for and on behalf of Our Sovereign Lord the King, whether
Francis Mercier, the now prisoner at the bar, being now
here indicted for the wilful murder of David Samuel
Mondrey, stands mute fraudulently, wilfully and ubstiu-
ately, or by the providence and act or" God, according to
your evidence and knowledge." The jury examined °the
witness in open court, and returned as their verdict that
nut gui y,"
hi 'ricrir'
nonui, ' By
! iny ee/w."
s taken j^ro
>e, 341.
i. V. IIucU
■ Den. 291,
t. 16.
and, if the
liately sen-
le of B. V.
?iiO(l, stood
irn a jury
ute obstin-
iccordiiigly
I to tliern:
tneiit make
Jg, whether
being now
id Samuel
nd obstiu-
jcording to
mined the
ii'dict that
PROCEDURE ACT,
<^he prisoner stood mufonf ,• * ^®^
f "o"- Who .up! 7 r ;.r;r" r "^ "■" -•»"»'-
tence of dpnth ^^ ^^^i- diatc? no i
«--:d on the AL,4Xwr:' *"" "^ ''-'■^- -7
^ prisoner Who hml K ''^^^g-
."-; *>... ..ia> wJl^:;r;-'y'*U„d convicted,
-"formality in ,„earin„ the witn ^ "" '"=™""' "^ «ome
"P°» an indict,,,,,,, for Lt"r" *''" '""'«-<'
plead, alleging tl,at he had tenlT T""""' "'"^ "'^'''"'i to
J....n<l Va„„han,B, ordered 1 r''^/^''^'^- f"'««We.
-'-I r„rhi,n «"UeVt,J:t „ 'r/ ;-|"iit, - ^
''e waa .„; they were the,, lorn , '.^'J'"'^ ^™"'' ">"'
»We to plead, ,vhiel, they fonZ ^f "'^ "'>»"'^' he was
defendant by a sign p,ead:d"n„r "'r'''™''"''^' -'^ 'he
or ored the jury to be et,pa„nllfff ' "" J""=- '"^n
efeudant was now sane T^t 'tw '^^ "'"">- ^^
*'«ted them to say whether H^ T' °" "'« q"osUon
'•■"fl Oct to undersfan fo*^^^^^^^ "ad s,,meient'
■"ake a proper defence to eh,n ,"'" P'«eedings to
P«'>e„d tl,e details o^ L e dT " ^'"°" """ »»-
'l>»"gl.t he had not, they shn f T'/"'' """' ^'^ "'ey
""-".-iJ. V. PWfcA;^^ *»;■; «"'J^ him of non-sane
It seems that where a nri.,^-
->«■■- mute, the :;"::'" '"*''"" '"p'-<i
that he does so through mate' r.! '"'"'''''* '" P'ov^
«ot guilty under this I..Z CJ """ " P''" "'
"e ed to try the question rf ma .vV"'''.'"'"'' '"' ^■"P'"-
fi»-i".g that the court is al"- A""' '' " "?»" 'heir
^' V. Am.?, 2 Cox, 263 ""^ '° '^''"^' the plea.-
I ;i
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L-P
790
PROCEDURE ACT.
A prisoner, when called upon to plead to an indictment,
stood mute. A jury was empannelled and sworn to try
whether he was mute of malice or by the visitation of
God. A verdict of mute of malice having been returned,
the court ordered a plea of not guilty to be entered on the
record.— iJ. v. Schleter, 10 Cox, 409.
A collateral issue of this kind is always tried instanter
by a jury empannelled for that purpose. In fact, there is
properly speaking no issue upon it ; it is an inquest of
ofiBce. No peremptory challenges are allowed.— i2 v
Hadcliff'e, Fo8t. 36, 40. The jury may be chosen amongst
the jurors in attendance for the term of court, but must
be returned by the sheriff, on the spot, as a special panel.
—Didlcenaon's Quarter Sessions, 481. If the jury return
a verdict of "mute by the visitation of God," as where
the prisoner is deaf or dumb, or both, a plea of not guilty
is to be entered, and the trial is to proceed in the usual
way, but in so critical a case, great diligence and circum-
spection ought to be exercised by the court; all the pro-
ceediugs against the prisoner must be examined with a
critical eye, and every possible assistance consistent with
the rules of law, given to him by the court.— i2. v. Steel, 1
Leach, 461. In the case of M. v. Jones, note, 1 Leach,
452, the jury returned that the prisoner was " mute by
the visitation of God." It appearing that the prisoner,
who was deaf and dumb, could receive and communicate
information by certain signs, a person skilled in those
signs was sworn to act as interpreter and the trial then
proceeded.
It would seem that now, as whether the prisoner stands
mute of malice or by visitation of God, a plea of not
guilty is to be entered, the only reason why a jury must
be sworn to enquire whether the prisoner stands mute of
PEOCEDUBE AOr. yg^
^.-. ana » Jz.^r„rrr;^::;rr "^
may order such person to be kent W / '"'"'P^''
the pleasure of tl Lieutenttt::^^ ^'^''
or acquitted, as'the case n^^! be o the off'" 'T ^'"/'^"^ ^^"^'^'^^
ment.-32-33 F, c. 29, ,.35 "^^^""^ ^'^^'•g**^ '» the indict-
£-■•"- «'.=£■ r,,r;-, «
«. requisite before the passing of thl ^l ;''■ ""*
These pleas are of the class oaUed special plea, in bar
IP'
792
PROCEDmiB ACT.
And the said J. S., in his own proper person cometh
hito court here, and having heard the said indictment
read, said, that our said Lady the Queen ought not
further to prosecute the said indictment against the said
J. S., because he saith that heretofore, to wit, at (describe
the court correctly) he, the said J. 8., was lawfidly ac
quitted of the said offence charged in the said indictment
and this, he, the said J. S., is ready to verify. Where-
fore he prays judgment, and that by the court here he
may be dismissed and discharged from the said premises
in the present indictment specified.— Archbold, 132.
It is not necessary that the plea should be written on
parchment; sec. 103 of the Procedure Act, ante.
If there is more than one count in the indictment it is
better to plead to each.— iJ. v. Westley, 11 Cox, 139.
The defendant may, at the same time, plead over to the
indictment, in felonies, hy adding ^' and as to the felony
and larceny (as the case may be) of which the said J. S.
noiv stands indicted, he, the said J. S., saith that he is
not guilty thereof; and of this, he, the said J. S., puts
himself upon the country." If, however, the defendant
pleads autrefois acquit, without, at the same time, plead-
ing over to the felony, after his special plea is found
against him, he may still plead over to the (elony.—Arch.
bold, 133. But it seems that in misdemeanors, if the
defendant pleads autrefois acquit or autrefois convict, and
the jury find against him on this issue, the verdict oper-
ates as a conviction of the offence, and nothing remains to
be done but to sentence the prisoner.— ^rc^io^ 134;
1 Chit. 461, 463 ; 1 Bishop, Cr, Proc. 755, 809, 811,'
812 , R.\. Bird, 2 Ben. 94. As a consequence of this,
it has been held, in England, that, in misdemeanors, the
defendant cannot, even by separate pleas, at the same
PBOCEDUBM ACT.
*i'me plead autr,>fn.: . ''''^* ^93
^^%.^i?T% ,'''^''^^ or autrefois ronvJrf .
case of 7" "^2^^^'' SB. SO 509 n^u '^ '^- ^^0.
' ^ ^^sdemeanor a p]pa nf I ^^^^^^ ^'n a later
^n felonies, the i„rv
«-;i* both ias^irit t fr' ^' '-^ -e
fT,o ; -^^^ prisoner hac fj, • , ^- -^^^^e. 1
'■""^ ae plea ^'oveT? " '" '"^^ "^ « e pri ol" '?
plea "not proved" h ° """"""■y- ">« jury find 1
»« the trial proceed T',--' °" I'"' P'^» "^ "ot Zw
"'len such nioo. 2'. 2 Z)eM. 347 i-. /
«,„ • J ^"^"^ contained tl,o « . . ' ^oTOeriy
"'ej"dgment,etc.,detail.dl i„ ,^' ™<iictmei,t, with
-.Id den^ar to it and he„ If '™^"'' «■« p,o eo«
>" t the general form allowed h!.v ''^'"^- '^•« now
™ or meets the plea with? ^ ^ ''"""«• «« prose
«"'r When the relrd rmad?::^":^, "^"■""»' ~
"c«ardy actually pleaded aZh'*' trial, though not
n medby aj„r^._See, hoCfr t '""!"■ "^' ^^ ^^ter-
"'^^^""---■^^--i^^Seese:
I iJil
P--
;il''i ;: . 1 ■,!
I-
■M
w
11:
794
PROCEDURE ACT.
246, post,) when so entered upon the record, may be as
follows :
And Jiereupon A. B,, who prosecutes for our said Lady
the Queen in this behalf, says that hy reason of any
thing in the said plea of the said J. 8. above pleaded in
bar to the present indictment, our said Lady the Queen
ought not to be precluded from prosecuting the said
indictment against the said J. S., because he says that
the said J. 8. was not lawfully acquitted of the said
offence charged in the said indictment, in manner and
form as the said J. 8. hath above in his said plea
alleged ; and this he the said A. B. prays, may he
inquired of by the country. And the said J. 8. doth
th^e like.
For a form of plea of autrefois acquit or autrefois con-
vict to one count only of the indictment, see Lord
Campbell's Acts, by Greaves, 88, and R. v. Connell, 6
Cox, 178.
When a man is indicted for an offence and acquitted
he cannot afterwards be indicted for the same offence,
provided the nrst indictment were such that he could
have been lawfully convicted on it ; and if he be thus
indicted a second time, he may plead autrefois acquit,
and it will be a good bar to the indictment. The true test
by which the questioL^ whether such a plea is a sufficient
bar in aiiy particular case may be tried, is whether the
evidence necessary to support the second indictment would
have been sufficient to procure a legal conviction upon the
first. — See R. v. Bulmer, post, under sec. 264; R. v.
Sheen, 2 a <S: P. 634 ; R. v. Bird, 2 Den. 94 ; R. v.
Drury, SC. <S; K. 193. Thus an acquittal upon an indict-
ment for burglary and larceny may be pleaded to an
indictment for a larceny of the same goods, because upon
PROCEDURE ACT. kq-
for a burglary, .ith 4nt to olti/fr^'""' "^"
not charge an actual larcenv 1 ^^^^^^ny, and did
be a bar to a subseqlt IdL. """"iT °" '' "«"^^ ^^^
Hale, 245 • i? V TlT '''^^'"^«<^ ^^^ the Iarceny.-2
' ' •^- V- ^^ctndercomb, 2 Leach 77fi. i. ,
defendant could no^ h^,^^ u ^"^^' ^^o; because the
on the first inditr„t'T:::,rrr^ °' *" '--^
for murder may be nlwrltV T "P°° *" indictment
of the maa,Iaughter on the t. f . " ''" °™^''='<'d
aquittal upon a„° indictment Lt 'fT""' «"• »
a bar to an indiotmenttmuXT .?''!.' '■'' " ^^^»''
degree.-2 ffa?«, 246 ■ loiri^ . ""^ '^"^'' ""'y '»
«i, 13 fc, 217. ■ *®^- ^'" »«« -«• V. Tan.
it' "°„:":S/'"''^':°"-^"'-"edo„ an indict,
to commit it. fo: hT m^rrCeMf'"'^ '"' "" ""^P'
attempt on the provio„nldt L^ /"mt V' ^'^
this applieji only to th« «. ,' "^^^ post. But
attemp^^g ,„ commit a c" ri "h"!.*"""''''' "^
allows a veniict, and not when the „/f ''''"™ ^»^
offence charged is bv a J ? 7 ""P' '° """""'t 'he
a felony. |o lo^ .T }• f "'""^ ™''<"«"'''' ""ade
felony of adminS„rj'"'"'"".''" ^°' «"» »'atuto:y
J aumiaiscenng poison with intpnf f« j
a previous acquittal on an indictment fo^ ^ T'^^''
on the same facts, cannor^e T / . ""' ^'^°^^^
of the same child, because by e, mZTlV""^ '^^^^
upon the first indictment milhth u ^ ' *^' ^^^^^^ant
concealing the birthT^7l'r^'^^° ^^""^ ^nilty of
iJm 55. • ^^^^''^' °°^ by Greaves, 2
1
X:-
796
PROCEDURE ACT.
So, a person acquitted of a felony including an assault,
and for wliich assault the defendant might have been con-
victed upon the trial for the felony, under sec, 191 of the
Procedure Act, cannot be subsequently indicted for this
assault.— i2. v. Smith, 34 U. C. Q. B. 552.
So, also, a person, indicted and acquitted on an indict-
ment for a robbery, cannot afterwards be indicted for an
assault with intent to commit it ; s. 192, post, A person
indicted and tried for a misdemeanor, which upon the trial
appears to amount in law to a felony, cannot afterwards
be indicted for the felony ; the statute has the words " if
convicted" but, by the common law, this rule would
extend to a prisoner acquitted on trial, s. 184, post. A
person indicted and acquitted for embezzlement cannot
afterwards be indicted as for a larceny, or if tried and
acquitted for a larceny cannot afterwards be indicted as
for embezzlement upon evidence of the same facts, s. 195,
^8t. A person indicted for larceny and duly acquitted
cannot afterwards be indicted on the same facts for obtain-
ing by false pretences, and a person indicted for obtaining
by false pretences and acquitted cannot afterwards be
prosecuted for larceny on the same facts. Sees. 196- 98,
'post.
And the ruling in i2. v. Henderson, 2 Moo. C. G. 192, as
cited in Archbold, p. 182, is not law here ; but a reference
to the report shows that there was no such ruling in that
case, as given in Archbold, and even admitting there had
been, it would not have been free from doubt, even in
England, where they have not the enactment contained in
sec. 198, post. — 2 Taylor, Ev. par. 1516 ; though see R.
V. AdamSf 1 Den. 38.
If a man be indicted in any manner for receiving stolen
goods, he cannot afterwards be prosecuted again on the
PROCEDirKE ACT. »„»
same facts; sees. 199 20O vosf Ti ■ i •
applicable, though th^ first tdU , ? " "'"'""y
defendant jointi; with otll, '"t'^T"' '"' "»'"'"'" ">«
alone, and upon the fi,.? 7," ""' ''™"'' ""'.""rt him
acuitte, anrthf tth^^'^r^al^r' '"^ ';°^"
have been eo„vieted on the first ft ' n ''" ""'«'"
either in the indictme^ rpll^T, W '"" ''"'"''
the like, the defendant was Tt I r ', " '^""""'' "'
judgment for the ofienee „l"l l'""^ ''""'^ '^ ->f-
indictment, as it s.»od a thoTmeTth ","■" *^ ""'
.ot been in jeopardy, in the s n" wh H Jnt,'!!' v "f
plead the former ae^nittal or eonvictin ,•„ T f ° '°
quent indiet»ent.-if. , Bn^^TclKil'' T"'
"I" general," says Slavic, Or PI 320 !' . .
original indictment is insufficient no aeonitta C d H
>,«n t at insufficiency can be avaiiLble. bZ "L, Tf f
uants Lite was nevpr rpillw ■^^^ j • . unen-
as never really placed in jeopardv and fli«vn
I ™i r' t!i? "■" ^'^'' -«'eiy fti "
And C/ii^. 1 Cr. L. 454, savs • «An,l iT
oh«,.vo that the great genCra/ruie upon tS s^irofT
s«bjoct rs. that the previous indictment mn tCe 1 '
o»e upon which the defendant could leX hav K
co.>v,cted. upon winch his life orlibertv wis nV , "
imaginary but in actual dano-er I„d I ""'"'^ '"
there was no material error?' CnT ' '" ""'°''
where ti,e defendantwasacquit'^dmerelv .n?''"""^'''
indictnrent. or variance in the recitl t! "'""'"'''"" "^
again upon the same oharg fo tt flit ""'' ." """""''
merely nu»atorv Thn, t j pweeedrngs were
y .ato.y. Thus, if an mdictment for larceny lay
a
tl
■■M
I
798
PBOCEDUBE ACT.
IMS '
the property in the goods in the wrong person, the party
may be acquitted, and afterwards tried on another, stating
it to be the property of the legal owner."
And even now, that an amendment is allowed in such a
case, and that the court, on the first indictment, might
have substituted the name of the legal owner for the
wrong one first alleged, if the indictment was i.ot, in fact
so amended, the plea of autrcfoia acquit cannot be'
sustained ; the indictment must be considered as it was,
not as it might have been made ; the court was not bound
to amend, and the indictment to be considered is the
indictment upon which the jury in the first case gave their
verdict.— i2. v. Green, Dears. <S; B.113,
An abortive trial without verdict cannot be pleaded as
&^ acquittal; the acquittal, in order to be a bar, must be
by verdict on a trial. Thus, if after the jury are sworn
and the prisoner given in charge to them, the jud.re in
order to prevent a failure of justice by a refusal of a witness
to give his evidence, or by reason of the non-agreement of
the jury to a verdict, or by reason of the death or such
illness of a juryman as to necessitate the discharge of the
jury before verdict, does so discharge them without coming
to a verdict, in all these and analogous cases the prisoner
must be tried again.— iJ. v. Winsor, 10 Cox, 276; 7B <&
S. 490; M. V. Charlesworth 1 B. S S., 460; 1 Burn,
348; 2 Buss. 62, note hy Greaves; R. v. Ward, 10 Cox,
o73.
A previous summary conviction for an assault is not
a bar to an indictment for manslaughter of the party
assaulted, dead since, founded upon the same facts.— ii; v
Morris, 10 Cox, 480.
A person was acquitted of an assault with intent to
murder, but was convicted of an assault with intent to do
i:
PBOOEDOIIE ACT.
gn'«vou8 bodily h„r„ . ' ^'9
l-^fy died, I,e was'ind"led fofr"';'"''- '"'"'"8 «"''»«-
e onrne haa „„ existence, in fee '??'' "'""'""' ""'^
»f *e party assaufed. Tbejforl > ' "" «"^ ''^-'h
?""." '™<i f- 'he same c iLe i^ '*'"'"' '"^ «'■<' ««"
d"nng tl,e life, and tried f„ "„urde" ft " J™' ''^ »''«""
...jurcd party. lUt new elera!^ ^ ^^ "'* "'""'■■ of the
<i««h is not merely a ,ZT "" "'^"'^'i Pe«on's
creates a new crime "T'Tl"^ "KS-^vation. but i
t'- (Scotland), cited 'in7BmLr'"'f'"'- '" *'-«^'«
A n,an steals twenty pL „ut ' -'^ "'^•
charged with twenty teemW „„ ™"" ''■"^' «"■ ^e he
rent ,„d.ctments ? After ve^ic Z T i" '"""'^ "»"-
can he maintain a pfea of «!" /° "" '''■^' ■"dictmenti
co««c*in answer to the snCetlTi 7""'' "' «'"-/-'«
I' n>ay be said that j„ ''?''™' '"''•etnients !
'-"'y pigs, at the same imTt'tit^r"" "'"' ^«'
but one criminal act. Sunno^e.l *"" ""o 'arcenv
'tree bushels of potatLTr^ldrb"": " '"« -"'--"g
larcenies of one bushel eaihTVb ^- "'""^'^ *''h 'hree
er -'h two larcenies T„V"*rHf"'^"''"'''*"»'a!
H, and one of the potatoe ? of" ■"'"''' ""^ "^ 'he
poinds m ten one pound notes ' can 1, I """' *'^'''» 'en
;-«;..otmentswithtl^'ittttro7::
'"0 murders ? If ie"^^ tried ,^7"''" ""' ■"-'''er or
i ■ !
i il
i
di
800
PROCEDURE ACT.
(( '
chargin;,' him with tlio minder of C. ? Of courso not. Ho
is guilty of two murdors.
In nil these cases there has been only one criminal act,
only one actual execution of a criminal design, only one
guilty impulse of the mind ; yet it appears to be settled that
where several chattels are stolen at the same time, an
acquittal on an indictment for stealing one of them i's no
bar to an indictment for stealing another of them, although
it appear that both were taken by the same act. —S^/i Jiep
Cr. L. Comm., 5th July, 1845.
" And thus it hath happened," says Hale, V. 2, p. 245
LUftt a man acquitted for stealing the horse hath yet been
arraigned and convict for stealing the saddle, though both
were done at the same time." And n R. v. Brettel C di
M. 609; 2 Rus8. 60, it was held that where the pAsoner
had been convicted of stealing one pig, he might bo tried
for stealing another pig at the same time and place ; but
as the prisoner was undergoing his sentence upon the'con-
viction already given against him, the Judge (Cresswell, J.)
thouglit that the second indictment should be abandoned
and this was done. '
Erie, J., in R. v. Bond, 1 Den. 517, seemed to be of opi-
mon that one act of taking could not be two distinct crimes.
He said : " I do not think it necessary in a plea olautre.
fois convict, to allege the identity of the specific chattel
charged to be taken (under the old form of such pleas).
Suppose the first charge to be taking a coat ; the second', to
be taking a pocket-book; autrefois convict pleaded; parol
evidence showing that the pocket-book was in the pocket
of the coat. I think that I would support the plea because
it would show a previous conviction for the same act of
talcing.'^
Butf
orroneoi
case, sa>
C07ivict V
taking J
five belor
OT^c chnrg
a theft frc
same act
plead auti
B. It see
or acquit,
thing from
If, accojc
are stolen a
five belong!
mitted by o;
Q^ a bag con
tlie potatoes
the iiag and
T'lo proof,
and lie is to
Greaves.
Ill onler t(
took place at
prisoner must
-»• V. Boivmai
at the same asi
of the clerk of
^' V. Lea, 2 ,
But see sees
viction or acqui
ir
1 1
mocmvnz act
"'" " ""'0 by Oreave, 2H . ®°*
''™"e"..»,«,„Uho..eport?;f„1r' '"• ""■"■" ""•' dictum
»«".( would be sup;or J t : '"" "' "«'«/"" «?«i« or
""^"^9 ! Suppose « puZ';^ r T"' "'"'" »«»-«»/
one charsiug pri,„„^^ ° "-Two ,ud,-oto„„t,, prof.fr 5
»«"'e act of takiug „ero b» *''" '''•"'" A. If y "
i;'o"''-^../„i,,„t,j; «;» or t„e o,™„, he ::;:
«• I' »oo„,3 that, to sunnort 1 ^'™'"" ""^ ^''■"'"'g fm,a
'';;'««7».X there „u,t b^ "f" "' ««'«/-« fo„r«
If, acceding to thi, „n 1 , " """' «««-' '•
"«-;«.. ..t „^„, att"h?r':r """""'— ■•«n.
five holoujjing to A., five to B , '• '" ""> *">"= ?",»
mitted by one act it f ,, ' '"" """"os ha™ b,.„„ '
»' "» - to begioL:, .2 ;r;3r '■-"■""» -^^f^'-^t,
^^^^:^z:T'"'r "''""•^"»». ■■' it
P^onormuat produce the e .d ,1" "."f"""' ^-^t. «>«
;'' : f ^'^ f "- court u^„ i 'tZT: """ ^-^ "<"- ■
^*;.^z.. . ^00. a a 9 cca,C;7!~tT7
But see sees. 230 and 9 1^
"*■»■> or acquittal. "' ^'"^' «' '« proof of a con-
BBB
802
PROCEDURE ACT.
When the verdict is quashed for informalities, or any
other grounds than the real merits of the case, the entry
on the record should state it in these words, " and becausG
it appears that the said indictment is not sufficient (or as
the case may bfl), therefore it is considered and adjudged
that the defendant go thereof without day," so as to pre-
vent a plea of "autrsfois acquit." — 1 Chit. 719.
Semble. — That a prisoner convicted for manslaughter
might be tried again for murder upon the same Aucts. It.
y, Tancock, IS Cox, 217.
Greaves' JUSS. note.— "Ths next question is, •supposing the ju-Jges
of C. C. R. were to hold that evidence had been improperly received
or rejected, and bimply determined to arrest or reverse the judgment
could the prisoner be indicted de novo, and tried and convicted for
|the same offence ? And it is perfectly clear that he could. Nothing
except a verdict of guilty or not guilty on a valid indictment, and
a lawful and still existing judgment on such '"..uiotcan atford a bar
to another prosecution for the very sameoffenct. See my note,
2 Buss. C. & M. 69 et scq. B. v. Winsor, 6 B. <& S., 143-7-490. 2
Taic, 246. Vaux's Case, 4 Bep. 44.
1 have said on a valid indictment. Now m indictment may be
either actually valid or valid ad against the crown in sone cases; for
a very material distinction exists between an acquittal and conviction
upon a bad indictment If autrefois acquit be pleaded end the former
indictment is b^d upon the face of it, the plea fails, liecause the
judgment may and is to be supposed to have been upon that defect,
us it is simply quod eat tine dii (3 Inst. 214, 2 Hale, 248, 394). But
if a prisoner be convicted and sentenced on an insufficient indictment
a plea of autrefois convict will be good unless the judgment Ims been
r^^versed (2 Hale, 247), for the judgment could only be given on the
verdict So if a special verdict be found, and the court erroneou,-ly,
adjudges it to be no felony, autr^ois acquit is a good plea as long as'
that judgment is unreversed on error (2 Hale, 246). And in the case
of an acquittal, if the judgment has been quod eat inde quietus; ag
the ancient form is in case of acquittal upon not guilty pleaded, that
could neyer refer to the defect of the indictment, but to tiie very
matter of the verdict, and the prisoner could not be indicted again
until the judgraeat had been reversed on error (2 Bale, 394).
•J
PROCEDURE ACT.
A strange misapprehension K. ^^^
writ of error in a criJnT ^ Pi-^^ailed in Ireland I«.«l ,
tlie crown. There rl'n'^' '^"''^ »«' *>e brou 'ht ol K^' "'*' *
a«snmed that it mav h f ' r"f * ^^"''^ «bout i" « •,"•"*' P*--^ «f
the reason why error n.ust be brouttf h! f/ '^''"* ^^''^ Coke .ives
e"oneo«s,«.,.„ent oroonden.nS t'n '^^,7 ''^^^ '''^ ^^ "
I entertain very consirf.roK. . ' ^'"''» * ^ep. 45.
not the writs Of tLTo^ff'Lf"'*'^^^^^^^^^^ writs of /
A^G'« consent i« :e::r;ro ^^ " f ^ *'"« «-»d";^ Te
whenever a nlea nf «.w ^ • ^"'"n.
arises whether the rpnlino*- , ^ **" "^'i® face of it ♦!,<.
conclude with a LuTr ^ j^ ^^ <>"t thV^orr"!;
the plea, it woald see^Mo bl tl fc ^^^ ^'^^ -^"~
8uch a case err. as they certainly did t I '"; ^ J"^ '^'Sht n
where, against the direction of the i./di ^^ '• ^*«> 2 Moo. Cq 9
evidence, they found fo tf,* "'.^""^ J"«ge, and without anv r^«. \ i '
could not beset as^e 1 . ?''"''"'' *"^ '^ '^'^ held thaUh!"".'^'"
the crown ; and^if t vefd efStt^ '^^-'^-^^^^^^^
greatdoubt whether any rernedre^^t^'*'; prisoner, there would .^
undertheact, for there would^ot blvi^'*'''""'^ »°t be reserved
not be available, for the formerrel^^ r'"°"' ^""^ *'«-or would
sequent record, and there is grlve doubt' ^ ^P*"*'' «» ^''^ «"!
uch a case. But if judgment^were .tel*" '" ' ^'^*^'''' ^«rdict i„
arephcat-onaslhave -go-ated'rf r ^^^^^ sue,
147. No plea setting forth any atU' T ' '^' ""■^«^"«'-"
any indictment, unless 'the atS ttrVh'"" *" '^'^^^^ '" ^ar of
harged .n the indict„,ent.--324 r. / 29'! ,r V^^^^^ ^ th^I
Attainder is tho /af^iJn
Criminal capitaUy Itle" 77^. "' '"^ ■"-« -^ «
of death, or of outlawry for a .TiL I' ^ *' «*'"«°'»
«ntenee of death or the ,uZ ^ r**' ^^'^ ">e
4a ; if'l
r!
1
il
ii
^04
PROCEDURE ACT.
pronounced, the prisoner is attaint, attinctua, stained or
blackened. He is no longer of any credit or reputation ;
he cannot be a witness in any court (but see now sec.
214 of the Procedure Act, post), neither is he capable of
performing the functions of any other man, for, by anti-
cipation of his punishment, he is already dead in law,
civiliter mortuus. The consequences of attainder are for-
feiture and corruption of blood, 4 Blackstone, 380. And
at common law, if a man is attainted, he may plead such
attainder in bar to any subsequent indictment for the
same or any other felony. And this because such pro-
ceeding on a second indictment cannot be to any purpose,
for the prisoner is dead in law by the first attainder, his
^lood is already corrupted, and he has forfeited what he
had ; so that it is absurd and superfluous to endeavour to
attaint him a second time. — 4 Blackstone, 336. But now,
by tlie above clause, attainder is no bar, unless for the
same offence as that charged in the indictment, and in
effect the plea of autrefois attaint is at an end.
See, jpoat, sees. 36, 37, c. 181, limiting the effects of
attainder.
- In England, now, by the 33-34 V., c. 23, all attain-
ders, corruption of blood, or forfeiture of property are
abolished.
LIBEL.
For sees. 148, 149. 150, 151, 152, 153, 154, see ante,
under c. 163. " An act concerning Libel," p. 227.
CORPORATIONS.
155. Every corporation ftgainst which a bill of indictment for a
misdemeanor is found, at any court having criminal jurisdiction, shall
appear by attorney in the court in which such indictment m found,
and plead or demur thereto. — 46 F., c. 34, a. 1.
PROCEDUBE ACT. g^^
156. No writ of certiorari shall \^
defendant to plead thereto; norsiall it L ^'^ "^^ compelling the
of distringas, or other procer to 1. ^« "«°e^«ary to issue anywrit
plead to such indict.nent -!:6 k' "TJ f '^'^"'^^"* ^« «PP-' a^d
"■ KPT m ' *
any co;po;::iorrtr;,e?;^^^^^^^^^ ••« found against
fpunded on a presentment of the ' nJ •"' " '""^^ '"^'«^"-"' '«
tLereofto be served on the mayo or^ej^or' 7^ '^^'"^ "^ ^^'^^
or upon the clerk or secretary U.ereoftatinWK ""'^ corporation,
sucl. ,nd.ctme„t. and thaf, unless suef " """^ ""'^ P"''^^^^
pleads thereto in two days after thn! ««'-porat,on appears and
not guilty will be entered' t'eott"^^^^^^^ "^"■^^' ^ P'- of
that the trial thereof will be p Iceeded with I"* '^' ^'" ^^"'•^' ^''d'-
Aoo. If such cornoratinn /^
the indictment has been foundTlnd^K"' I" '^' ^^"••^ '" -hich'
the tune specified in the said no i^e the L "" '''""'' '^^^^'« ^'^^i"
>nay. on proof to him by affidavit if hi H^' Prc8.dingat such court.
onW the clerk or proper officer o U e cour^to "7" '' ^"^'^ '^^'''^^
gmlty" on behalfofsuch corpora ion rr .'"''"* P'^^ ^^ " "<>*
same force and eflfect as if sucTln ' '"''* P'"* «''«'" have tl^e-
attorney and pleaded such plea -!^rr:ir ^ ^^^^^^^ ^'^^ ^^
pleads to th^inTclrf ^r wSfer Tf ^^'^''P^''^^''^" appears and'
hy order of the court, pr'oLed h u^t" f '' T^'"'''' " '« -^'-'ed
absence of the defendant, in thT am ,n ' " "^'. '^''^'^'"^"* - ^'-'
had appeared at the trial and del^Sed thr"" '' " "" ^^''P^-'-"
conv,ctmn, may award such jud^menrandL'.""^' in caee of
«equentproceedingsioenforcethe° ameLf r"'"' ""'"'' "^"^ «"b-
again.st corporations.--46 r « 34 , 5 ^'^^^^'*^^'*°'^"^''<=^'on8
JURIES AND CHALLENGES.
100. Every person qualified ani
- '' petit juror, according; the law "nT"' " ^ ^'^^' j'"-^ or
any province of Canada;shall^ a J«,"n'u'''^ time being in
to aerve as such grand or petit juror • ti i ^^ *' ^ ^"'^ ^"^^'fi^^
whether such laws were in force or were o ''''"" ^''^^ P>-ovince,
latnre of the Province before or af 17! 1 "'■^^"^«'«d ^y the LegisI
Canada, but subject always to Infnrov P-'""°' ^'''^'*'»« "^ Par^of
""^"t of Canada, and in so fir as'su h laT '" '"^ "^^ «^ ^^^ ^-lia.
any such act.-32-33 F, e. 29, .44 467 'To"'' '""""^'^^^"^ ^^^^^
806
PBOCEDUBE ACT.
The Jurors and Juries acts of Ontario and Quebec, and
sec. 160 of the Dominion Criminal Law Procedure act,
are constitutional — M. v. Provost, M. h JR., 1 Q. B. 477 •
K V. BradahAiw, 38 U. C. Q. B. 564: R. v. O'Mourke 1
0. R. 464.
The defendant in a criminal case has no right to a com-
munication of the petit jury list.— JB. v. Maguire, 13 Q
L.R. 99.
161. No alien shall be entitled to be tried by a jury de medietate
linguce, but shall be tried as if he was a natural born subject.— 32-31
r, c. 29, *. 39. 44F.,c.l3,«. 8.
Ever since the 28 Ed. Ill, c. 13, aliens, under our
criminal law, have been entitled to be tried by a jury
cpmposed of one half of citizens and one-half of aliens or
foreigners, if so many of these could be had. It seems to
have been thought necessary, in R. v. Vonhoff, 10 L. C.
J. 292, that these six aliens should be natives of the coun-
try to which the defendant alleged himself to belong, but
the better opinion seemed to be that six aliens were
required, without regard to what nationality they were of.
Sec. 2 of 28 Ed. Ill, c. 13, says "the other half of aliens."
However, this is now of historical interest only, and by
the above clause aliens, all through the Dominion when
indicted before a criminal court are on the same footing
as British subjects, as to the composition of the jury.
In England also now, an alien is not entitled to a jury
de medietate linguce.^ZZV.y c. 14, Imp.
162. Any quaker or other person allowed by law to affirm instead
of swearing in civil cases, or solemnly declaring that the taking of any
oath is, according to his religious belief, unlawful, who is summoned
as a grand or petit juror in any criminal case, shall, instead of being
sworn in the usual form, be permitted to make a solemn affirmation
beginning with the words following: « I, A. B.,do solemnly, sincerely
and truly affirm," and then may eerve as a juror as if he had been
I'BOCBDUBE ACT.
sworn, and hia (Jp<»I«..««- ®^^
a- an oaU, to ^ill^^^^^^^l^^fon .,.., We the «a.e etfect
to the caee, it .na^. be stated that th« "^ """'''^ or proceeding relS
and m any indictment, the wo,i! , ' ^"T ^«^« «'vorn or affirS
understood to include .he .ffltl^r ^'"'^ ^**'' '-««nt » shaTlt'
«weanng.-^2-33 r.. e. 29, Tir " ^^'""^ •'"^^''^^'-mingi.^tead of
(8ee post), allowing J wkCl? *^^ P^visions of sec. 219
an affirmation instld oTa„ ^h " T^" "^^^' ^ -'^e
enactment is confined in 30 31 V ^\t^^^'^J' « similar
iO««. If any person arraigned fn« ♦
I77^"'^a greater numbef or ':'^„77 or felony challenges
be md.and the trial of such pelnl, ^i t"*ji*'*'^^ ^^^P^^^Wv shai
had been made, but nothinVherVn t"^r'^*«'^"«««ch chilWe
c. ly, s. 61. "I jurors for cause 32-33 V
The Imperial Act, 7-8 Geo. IV c 28 , q .
'" "'"'lemeauora. Sec 163 of 11 P ?"* ""•* "»»«
apphea ouly to treason felony lr,l TT ""* ^'"' <»"«.
By the common law if Zl ^^ "*»«"'•
torily more of the jJry thlnT"" """""'S'd peremp.
deemed a ,^f„eal to L tried a„dl"1 """*''''■ «"' ''^
ie would not .^tract hi, ail, 1^"^ "'■ «■« P"»<>»er. if
«* in cases where he refused f„ , '™8^' »'<»<1 oonvioted,
the 22 Hen. VIII.. «. ~ P'^ft'. i^""' "'"'' "^
»™g.«d for felony ,.„ ^ '^^^~ 'hat " no pe«„„
"^^ ^ -^ l^-P-. ohalC^rtZhZ
ffl
d08
PROCEDURE ACT.
whether, if the prisoner challenged twenty-one, he was to
stand convicted without trial, or if the trial was to pio-
ceed the illegal challenge being disregarded and overruled.
—4 Blackstone, 354. This explains the phraseology of
the above clause, which, to remove all doubts, had to, and
does provide for the consequences of a peremptory chal-
lenge over the number allowed, at the same time as it
enacts what is tiie number allowed in all cases.
There are two kinds of challenges, the one to the array
and the other to the polls.
A challenge to the array is an exception to the whole
panel of jurors returned, and must be made before the
swearing of any of the jury is commenced ; a challenge to
t,he array must be made in writing.
The ground of the challenge may be either that some
fact exists inconsistent with the impartiality of the sheriff,
or other officer returning the panel, or that some fact
exists which makes it improbable that he should be
impartial, or that some fact exists which does, in fiict,
interfere with his impartiality.
The challenge must be in writing, and must set forth
the fact on which it is grounded. The court must decide
whether the alleged fact is in itself a good cause of chal-
lenge, in which case it is called a principal challenge, or
whether it is merely a fact from which partiality may or
may not be inferred, in which case it is called a challenge
to the favor, or that the sheriff has been guilty of somo
default in returning the panel.
. If the court holds that the alleged fact is a good cause
for a principal challenge, and the alleged fact is denied, or
if the court holds that the alleged fact is good as a
challenge to the favor, and either the fact or the partiality
sought to be inferred from it, or both, are denied, two'
PROCEDUHE ACT. • ' g^g
coroners or other officers If they fil'd '''""^' '' ^'^
lenge the panel is affirmed *^7 ,^" V^^'°'^ ^''^ «^»^1-
^g^ F ^ttirmed.-^Stepken8' Cr. Proc. Art.
Held, in an indictment against T? u fi, . •.
of principal challenj^e to f h ^^^^ ^t was ground
ln^sband had an a t"on ,1 r '"''^ '^^' "^« P"^^^'^^^'^
assault commi^rorth'e'ptfnr ^^^^^^^ '''^' '^ -
A challenge to the polls is an excention ,.
more individual juror or jurors j7l t """"' '"' ''
After W joined betweef^h ' cr^w^n 1?'^^""^'
when the jury is called and before tL P"'""'^'
only time when the right of ohT ^ ^'' '^°'°' ^^^ ^^e
^. V. Key, 2 Den zT n IT^" '"'' ^' exercised.-
challenge .„,„t be made Wo^'thetl"'^-'"'" """ *^
hand, of the juror, and befZ he offl "'f''" '""' *'
oath, and it comes oo lat/»r '^^ "^'^' ^^^ incited the
'he juror haa iisid he L^ T^ '""r -"'^ "^f"-
136, it wa, held that the challenge of '^ ""' "''■ * ^P'
the crown or bv tho ™L ° * •'"'''"'• «''"'er by
commenced. ThImomTn "h? T! "^ '^'"" ""' ™"> ^
The oath i, be»„„bvth,""'^'»"" '"»'»» 'ate.
heen directed ^T^^lZTlTtZ IT'' '""''
thejuror takes the book withn,r.T '"■ ^'"' «
-i«hing to challenge TstrbetT' "''■""' ^^'^
i""^ ma, be cha len^d e n' f " K ' ''"^''^- ^•" «
P^eentor consents.^A^;." If t'"! '""" '' "^''
man, J. ' ^^'*^*- ^ ^. 494, per Wight-
n !■
810
PROCEDURE ACT,
It is obvious that each juror must be sworn separately,
in misdemeanors as well as in felonies, when peremptory
challenges are allowed in misdemeanors.
The ar^cused is to be informed before the swearing of
the jurors, that if he will challenge them or any of them
he must challenge them as they come to the book to be
sworn and before they are sworn ; the following is the
usual form: "Prisoner, these good men, whose names
you shall now hear called, are the jurors who are to pass
between our Sovereign Lady the Queen and you upon
your trial (in a capital case, upon your life and death) ;
if, therefore, you would challenge them or any of themi
you must challenge them as they come to the book to be
sworn, and before they are sworn, and you shall be heard "
—1 Chit. 631.
The accused must make all his challenges in person,
even in cases where he has counsel.— 1 Chit. 546; 2
Hawkins, 570.
To enable the accused to make his challenges, he is
entitled to have the whole panel read over, in order that
he may see who they are that appear.— 2 Hawkins, 570;
Townly's case, Fost. 7.
A challenge to the polls is either peremptory or for
cause ; a peremptory challenge is such as is allowed to be
made to a juror without assigning any cause; the number
of these challenges -aiowed in each particular case is settled
by sees. 163 and 164 of the Procedure Act.
Peremptory challenges are not allowed upon any colla-
teral issue.— i2. v. Matclife, FoH. 40; Barkstead's case,
Kelyng'a C.G., Stevens ik Haynes reprint, 16 ; Johnsons*
case, Fost. 46 ; R. v. Paxton, 10 X. C. J. 213.
Hale, 2 P. C, 2Q7d, says that no peremptory challenges
are allowed to the defendant " if he had pleaded any foreign
II
PROGEDUBE AOT.
added, in Bacon's a7 F "jI^T ''■"^•" ^nd it i,
allowable when the prii„„ ^"" °P'»*»» to be only
Thia would ^„ t„ ~1/ h ^ «^-"'«" '«»•'»•"
«Me„g,ng „„ ^^ ^^^ « *^ the nght of pe,e,„pto,i,y
"autre/oU conmct." But it r f ""''V''^' «?«i*." or
^ "«» -cind is u„t a ofCl^^.^ r ' *;-eo„ a p,e.
fff, loo. oit.. that if a man ^eT^'; '^,"'* " " ^^d in 2
other matUr of fact <Wa6fe L?l *"'"^- "'P'^'my
over to the fel„„y, j^ hThi,^, ?"" '""T- ""d plead
cnm,„al «o„«„ plead, any rtr^'.f '"^■"=«. ''here a
of e»cutiou, aa preguanov ^H """' ''^ ''"' '» >>«
- i^««i#«', 0.^. above ^£tK '" ■"" "' «'»»• »-. -«
the bar to «eeive hi, 1^1:'^ TT ''""*' '^
same person that wa, convieteT ^ •" " ""' the
he»g Mways tried by a iur;.'::^:';^ "' ^" '^^^ --
tory challengea in all cafes ^^ If '"T'^' of pe«mp-
ohallenge e^at, ; and T^LltZ "^'" "' P»e'»Ptoor
same offence by one ind Ulenf "? ''"" "<"<"*<' '«' the
l« allowed hisf„H„„^2^^r"^^^'"/^«'-{ prisoner should
"ayjoin in their chalClfT''?"*''"^"^^- They
and then they can n?lut J *" "^ '™'' '"««*« '
-umber allowed to one. Bu -fT """T '^"^ *« the
crown has the right of tryirel !f """'' *" '" «>. *«
less than the whole, sepamXwT.^^'u""""*"" ""''«■>'
P-event the delay ^^bi^lfl ^ »«'^". in order to
'-^.e.haustedi^y '^.Zl^Jrat,:^"'' ^'^
IK I I
r:ii
M
PKOCEDURE AOT.
erroneously called C%armcA;J throe being indicted togothcr,
Holt, C. J., told them " that each of them had liberty tj
challenge thirty-five of those who were returned upon the
panel to try them, without showing any cause ; but that if
they intended to take this liberty, then they must be tried
separately and singly, as not joining in the challenges ; but,
if they intended to join in the challenges, then they could
challenge but thirty-five in the whole, and might be tried
jointly upon the same indictment; " accordingly, they all
three joined in their challenges and were tried together and
found guilty.
A challenge to the polls for cause is either principal or
for favor: it is allowed to both the prosecutor and the
detendaut—Archbold, 152.
It is'said in Archhold, 156 : "The defendant in treason
or felony may, for cause shown, object to all or any of the
jurors called, after exhausting his peremptory challencres
of thirty-five or twenty." If this means that the prisoner
must first exhaust all his peremptory challenges, before
being allowed to challenge for cause, it is an erro"?, and was
so held by the Court of Queen's Bench, in Ontario, iu
M. V. Whelan, 28 U. C. Q. B. 2, confirmed by the Couit of
Appeal, 28 U. C. Q. B. 108; in which case, it was unani-
mously held that the prisoner is entitled to challenge
for cause before exhausting his peremptory challenge^
Richards, C. J., concurring, though he had at first at \he
trial, on Archhold'a passage above cited, ruled that the
prisoner, before being allowed to challenge for cause, must
fii-st have exhausted his peremptory challenges.
If the prosecutor or the defendant have several causes of
challenge against a juror, he must take them all at the
eame time ; Bacon's Abr, Verb, juries, 11; 1 Chit. 545.
If a juror be challenged for cause and found to be indif-
PROCEDURE ACT.
porsunal objection, aa LnaJ^ZiW ",?""" "' '""^
present state of drunkonna^' de fc^' f "«"' "-»■"'/.
property qnaliJioatious reqnired h„,' " *""' °'' ""
'-. on the ground of sol pl^^:;' '• ^™^- <#-
■n the juror, „ho i, objeeted ^ a^ f h"! Tf '"^"""'y
e«her party, „r in his omployl:,,! '! ' ■''" °' "">""/ '<-
7-.t, or if he has eaten or r, k a't the' """'"'^' '" ">«
tl'o parUes, if the juror has exp ' ssed . ;'T' °' ""' "^
result of the trial, or his opinion 'fl 7^'' "' "> "'«
of the defendant, alsoif he wl on.o ' " '"""'""^
found the indictment upon Ih 1 , "' ^'""' ^""^^ *'•»
"migned, or any other indictoent •'"'"°"'' '' ""^»
aarae facts. 3. />ro«fe^ ifo,' """ T""^ ''™ ™ te
- where the ju.r ^ttr^d 7 t"' °^ ''^'"^
perjury, conspiracy, or anv „fl, , "''"''•»'> ^'ouy,
A challenge to the Z r f^"""" »*"'=»■
allegation of facts not suffidelr.-T '' f"'"'^'' "" '"^
tl.e court in inferring undue Lin '' *" ""'■"""
«..fficienttomisesua;icionthe d\" '"''J'"""^' b-'
wLother such influenc'e or pr^L^t "^.^r^^ "'^"^
cases of such a challpn^n ^^°*^ ®^'sts. The
<le,>eudent on a v^T c ^urf ""V •"-»°-- -'^
to be tried is whether the jurvZtT "" ''•'"'"™
a.' lie stands unsworn iVa C , "'"S^^^^^liftereut
'l>e party's house, or if they are L^' " ''*'*""^<' '»
« ".stances of facts upo7wh ch a rn™'"'' "'^ ""^O
may be taken._l Cldt oU ^"8" *■"■■ ''"vor
'"'^""'''^^""^^^'"■'^"-getothepoi.the
814
rROCBDUKE AOT.
court, without triers, oxaniinos either the juror challenged,
or any witness or evidence then offered, to ascertain the
truth of the fact alleged as a ground of challenge, if this
fact is not admitted by the adverse party; and if the
ground is made out to the satisfaction, of the court, tlio
challenge is at once allowed, and the juror set aside ; 5th
Cr. Law. Comm. Report, 1849, p. 122. In these cases,
the necessary conclusion in law of the fact alleged againsf,
the juror is that he is not indifferent, and this, as a matter
of law, must be decided by the court.
But in the case of a challenge for favor, the matter of
challenge is left to the discretion of triers. la this case
the grounds of such challenge are not such that the law
necessarily infers partiality therefrom, as, for instance
relationship ; but are reasonable grounds to suspect that
the juror will act under some undue influence or prejudice.
The oath taken by the triers is as follows : "You shall
well and truly try whether A. B., one of the jurors, atanda
ina\fferent to try the prisoner at the bar, and a true ver-
dict giv3 according to the evidence. So help you Ood.'*
No challenge of triers is admissible. — 1 Chit. 549.
The oath to be administered to the witnesses brought
before the triers is as follows :
'* The evidence which you shall give to the court and
triors upon this inquest shall he the truth, the whole truth,
aUd nx>thing hut the truth. So help you God."
If this challenge is made to the first juror, and, before any
one has been sworn, then the court will direct two indifferent
persons, not returned of the j ijy, t') act as triors ; If tliey
find against the challenge 'aft yiroi will be sworn, and be
joined with the triors in determining the next challenges.
But as soon as two jurors have been found indifferent
and have been sworn, then the office of the first two triera
'BOUEDURE ACT.
oeasas nri'' nv«». i '^^
">«™a,«»w„„,j^^ -» «fer «,„„ ,h.„ ,„^ ^
jurors .worn t„ try tl,„ chl ^ °*'«" ""^ '»'" of the
«nade when there « ye „! "'"^°- ^' "«' """fenxe i,
o,en b, e.ch partr:„:":,:: J-; -"., one trL ^
and the three, together, try the „,?„„' J"''^'""" "orn.
juror «,wor„._i ^Ai,. 5 J .^j j'""«"f »• "" « aecoud
£ 12; 2 //„fe, 274 ' ■fi'»«'». ^in Verb, Juri^
. ^'"' ''■■«' 'hon proceeds by w,>„. ,
'" open court; thejurorobjected „ ' ^'°~ "^^ '*«.
The challenging party iZT'. 1 ^ ^"^ ^'^i"
k« witnesses; thlThfop^^^trt '""''' ""^ «"'»
«.lla witnesses if he seesT^rhi; '""'""'"'■». «"<!
^^ « «ply. But in p JLle tT °°*' "•» "''^"^nger
»«ol. cases. The judge X/untr "° '«'<'->=»^es ^in
««y if .l.e juror challenged s7a„d?i„H^ '""'^- "'•° «>»»
ve«i,ct is final :7io,4l»7 198 tr"' "' "»'• 'his
on one side and found to be Inrt.ff ^"''' J"""' oliallenged
knged b,theother.-i cTi, 545""" ""^ »"" ''-W-
Hwhop says 1 Cr P '
line which seUtes' thIVanll'J " "''"•'' "■«* the
a- the challenge to the fay„r „us?l 1^"=''"" «""»«
«1, or very uncertain." ^ *'"""■ very artifi.
And TAarton, 3CnZ 3T!>i;
however, between challenge f'T"' " ^""^ distinction.
^rr' - "--0 «„,^haf;tut■^lsL"'
;:
616
PROCEDUEE ACT.
Criminal Appeal, in England, in 1858.— i2. v. Mellor,
Dears. & B. 468.--On a trial for murder, the panel of
petit jurors returned by the sheriif contained the names of
two persons,— Jose^^/t Henry Thome and William Thor-
niley. The name of Joseph Henry Thome was called
from the panel as one of the jury to try the case of Aaron
Mellor; and Joseph Henry Thome, as was supposed,
went into the box and was duly sworn as Joseph Henry
Thoryie without challenge or objection. It was, however
discovered the next day, and after the prisoner had been
convicted, that William Thorniley had, by mistake
answered to the name of Joseph Henry Thome, when
this one was called, and had gone into the box and been
sworn as Joseph Henry Thome, the prisoner having been
offered his challenge when the person called Joseph Henry
Thome, but who was really William Thorniley, came to
the book to be sworn. Upon being infoimed of these
facts, the judge who had presided at the trial respited the
execution of the sentence, and reserved the case for the
consideration of the Court of Criminal Appeal. It was
held in this court, by Lord Campbell, 0. J., Cockburn, C
J., Coleiidge, J., Wightmau, J., Martin, B., and Watson,"
13. (six), that there had been a mis-trial ; by Erie, Cromp^
ton, Crowder, Willes and Bylos, J. J, and Channell, B,
(six), that this was not a mis-trial, but only ground of
challenge ; and by Pollock, C. B., and Williams, J., that
this was not a question of law arising at the tiiai, which
could have been reserved for the Court of Criminal
Appeal The conviction was therefore affirmed by qwH
against six. But the report shows clearly that upou a
writ of error the conviction would have been quashed.
And it was undoubtedly Hlegal ; the challenge is to the
person called, not to the person who appears. When
addre
be cs
that 1
pass
upon
or an^
them i
they a]
address
is the I
trates g
of abso]
called, t.
Joseph
jurors w.
Jenged ?
Thome.
cause, it
Joseph R
ward, not
suppose a,
Thome wj
been that
Who .v^oulc
etc., being
lenged?" t
name, Will
^''' William .
not tlie pris,
to h'ln ? w
to get rid of(
f'eprived of
entitled to ?
rnOCEDffEE ACT
addressed by the clerk „f H, ' *^^
^ -"H the pnLtrCZ"": ^ "'" J"-' -ere to
P»»s bet«en „„r Sovoret„ r»T '^^ J"»« ''ho are to
"Pon your trial; i,; the eZ ^ *' '^"e™ and you
or any on;«« (, ; tha!:'^™ ;-« "■>""-«« .^
them as they come to the book tit' ^°" ""''' ^^''^g^
'hey are sworn, and yo„ shall bh» T"'' '""' ^^ote
addross supposes that'the per „„ tf" °'"'""-^'^' '"«
« the person called. But thTf """"es to be sworn
'jates clearly that if th! ooX^^ "PP- "- demor
of absolute nuUity. When Zll ^'^'"''^ " '' « »»»
called the prisoner shut his eye^tfZ' ^^"™^ ''"^
/«j.A B-e„^3, yj^^^^ would L " '=°"«''e'" that
jnrors who were to try him wi '"''"'" •" °™ of the
Jj'-ged. He did not 'de^:, J^,^.f-" he have cha !
?-*«•«.. And supposing h desi ed ^^l •''"'^'' ^'^^-V
--. -t is clear that It is le ? *;'-'8e him for
JoscpJ. Henry Thome that he TuW ."'''"="8^ »«-"«'
""'• ™' 'hose against tP* „ J™ T ''""8'>' '»-
»"Pl»se again, he had chal eL™/;^;™*/- ^..d then,
n«™ was called, would not 2 . '^'""'i'''- ^''^^H
heen that Joseph ^«,/™ '^ 7/» "-•eeord have
Who ™„Mthinkofanen!rytt7. ^Z ?"" """"^Sed?
^engeu.^ Upon this challenap m t , "^^ was dial-
""'the P'isonor have had" ™n" '"'" """^d, would
"« '■■■>" ? Would he not th „ T T '"■""■ « ''« <"«octed
'» =-' Hd of o„. ma„r W :«? '""' '° ^'«"™ge 1^'
V-Ved of one of the „ "°'' "■™' have been
entitled to? ""' Peremptory challenges he 7^
000
■"7-"
i'ffi
818
PROCEDUKE ACT.
On a trial for forgery, the panel of i)etit jurors contained
the names of Eobert Grant and Robert Crane. Eobert
Grant as was supposed was called and went into the box
After conviction, and before the jury left the box "f was
discovered that Robert Crane had by mistake answered to
the name of Robert Grant, and that Robert Crane was
really the person who had served on the jury. Held a
mistrial.— i?. v. Feore, 3 Q. L, JR. 219.
The prisoner should challenge before the juror takes the
•book in his hand, but the judge, in his discretion, may
aUow the challenge afterwards before the oath is fully ad
ministered.-i?. v. Kerr, 3 X. iV^. 299. (This decision is
unsupported by authority.)
164. In all criminal trial., four jurors may he peremptorilv clml-
affect the nght of the crown to cause any juror to stand asid u
the panel has been gone through, or tO challenge any number o , rn
for cause— 32-33 V., c. 29, s. 38. "umucr ol jurors
165. The right of the crown to cause any juror to stand ««M
.nt, the panel has been gone through, shall noVbe ex ci Si ,; t
tr:a ofany md.ctment or information by a private prosecutor ■
publication of a defamatory libel.-37F:, c. 38, s. ^^ ''''^"^ '"' "'^
At common law, the crown might, it seems, have dial
lenged peremptorily any number of jurors, without allooin".
any other reason than ''quod non honi sunt pro re J'
But this power was taken away, in the year 1305, bv 33
Ed. I. (re-enacted for Enjland, by 6 Geo. IV c 'so )
An abuse had arisen in the administration of justice bv
the crown assuming an unlimited right of challei,.in.
jurors wit lout assigning cause, whereby « inquests rcn.ained
untaken. In this way, the crown could in an arbitrary
manner, on every criminal trial, challenge so many of the
jurors returned on the panel by the sheriff that twelve did
noi
fini
tria
lenj;
chal
renir
show
aside
that 1
if the
thep£
this p
but ei
sion ol
accordi
reason?
are no :
pi'ocure
cause
— Mand
In th
eighteen
prisoner ;
crown, th
cause of c
aud nine
twelve oti
th<at time j
case. The
^^''lo, upon
I^een ordere
counsel for
■^^ to stauc
PROCEDURE ACT.
v^ivxi ACT.
not remain to form . - 819
^'"tely postponed ^,'i7'/^^ '^^ t"al mia^ b. • .
show anr oanco \ ,'"= ™wn, however ; '!'"=»'
the panel is nnf f^ '^ ^^® allowed /-n ,.,. ., "^ant,
f ^ pu^pose,":: :r tr " - ^e4 :sr ;,,.r
s>on of the Procedure Acf T "^ "*<"''" 'he Frenli, , '
reasonably be expected u*? "^ ""= "»"'•'. "nd «-ha !°
a« no more ju,.o4 i„t *' *"' « ascertained .nf.^^^
f-e^. -^-thi: K'^"- -ente a^::
«a«se of challenge ..th '"■°"'" ^o put to ,1
-J/a««« V n°n„ '"1"""^ """ili remain ? ?' "'
e«>.tee„ when called rrelr"""'"'^ ''f'^-f»'»- name,
P"«oner; fifeen wore on i'"''"'"'^ «h»llen„edt ,,
«"-. ao prisonerWo",!; T" °' '"« »- -J &r th! '
««so of challenge .ho„d hi ''■''''""" ^"^ P«yin» ha
»-'"".« were elected andtHj';' °'*'^'"° " » -"'l bv"
;-f;o other pe,,„„3„™^"f 'o be ,wor„. Thi iek
» "»; ab,ent <ie.ibera«,^ P^,-^'' «<' ".ey we; '^^
««• The name of Will,-, t^ ""'""■ wdict in anon,
;•■'«. "P™ the praye.! ' :" '""T 8"- «■« B' M« !
oeen ordpro^ <. "^ cue counsel fi-nm +i i"^^son
^or tlie iJrisoner
820
PROCEDURE ACT.
prayed that cause of challenge should be shown forthwith
At that moment, and before any judgment was given on
this application, the twelve persons who sat as a jury in
the other case came into court and gave their verdict • and
the counsel for the crown then prayed that William Iron
monger should be ordered to stand by until such twelve
persons should be called, but the counsel for the prisoner
demanded that William Ironmonger should be sworn unless
cause of challenge to him were shown. The court ordered
that WiUiam Ironmonger should stand by, and three
persons, the number required to complete the jury were
taken from the said twelve jurors, and elected and tried to
be sworn, although the prisoner's counsel objected that
such persons ought to be called in their proper order with
other persons on the panel, and that Jacob Jacobs the
person whose name stood in the panel immediately after
that of William Ironmonger, ought to be next called Upon
a writ of error, it was held that, under the circumstances
the panel was not gone through, so as to put the crown to
assign cause of challenge, until the twelve persons who
came into court before the complete formation of the iurv
had been called, and that William Ironmonger was properly
ordered to "stand by" the second time ; also that the three
persons required to complete the jury were properly called
and taken from the said twelve, without again callina the
whole panel through in its order; also, that "stand by"
merely means that the juror being chaUenged by the
crown, the consideration of the challenge shall be post-
poned till It be seen whether a full jury can be made with-
out him.
The case of R. v. Lacomhe, 13 L. C. J. 259, was deci-
ded on the same principles, in Montreal, in 1869, by the
full Court of Queen's Bench upon a case reserved by Mr
Justice Mackay, as follows :
PKOCEDURE ACT
iRco^^ P^^'^o'ier wag tried h.f ' ^^^
resort had then to be had „ I '™' ^""^ ">^o„gh „Ce
been made 'stand aside' r f"'" *''"' J«st before t.'
orfer. On the first of 1- ^ '"^""'J them to be 7 i'^ ''
^-H he ans^e^d!?:^---.. Ado,phe i:* ,:
w en h w„ "leered to -stanVatae m°" 1" *^ ^"^ ''"t
»»tor, the prisoner's conn-el , ''^ ""= «'°"n prose-
Masson shonld be sworn, „""]:' ,t'''''^- '"^''^tin/ that
chal,eng,„g Um. and did th n sl^ T" """^ -"- 1
ae crown refnsed to do l!, ,?'"*'='»' ^^se. This
-<! M™o„ was ordered'to'shnd ""J"™' "' ""^ oro^^
■ wte there cannot be a M ^ " " S™« '■"■'""gh „ w
''"'fenged. And then «/;" "^ *'"'o«t the perso'ns
™;'^'-v l„-s cause, otirefjd""' ""'''"«•' ™" -
-i Blachtone, 353. '" J"'™ ''«^» be sworn "
^''<i'tssaidia2ff„«,H»s569.
"'P<'™-,ed,itis„„,.e3. fh.^r '''"J""'- before a n.„ ,
Wear that there will nntl f ' «'""' ''"'ouyh a J ?.
^t/o. "Juries^'
f .'
822
PROCEDURE ACT.
In 1 Cfhit, 547, it is said : " The King need not show
the C£,use imtil the whole panel in exhausted, and if one of
the jurors was not present, but appear before his default
is recorded, the King's counsel, if he has previously
challenged another juror, need not assign his cause of
challenge till after such defaulter has been sworn."
In the case of E. v. Geach, 9 G. &. P. 499, Parke, B.,
is reported to have held that: " if on the trial of a case of
felony, the prisoner peremptorily challenges some of the
jurors, and the counsel for the prosecution also challenges
so many that a full jury cannot be had, the proper course
is to call over the whole of the panel in the same order as
before, only omitting those who have been peremptorily
challenged by the prisoner, and, as each juror then appears,
for the counsel for the prosecution to state their cause of
challenge ; and if they have not sufficient cause, and the
prisoner does not challenge, for such juror to challenge."
Upon this case, Lord Campbell, C. J., in 3Iansell's case,
supra, remarks : " There can be no doubt that the course
pointed out by the learned judge was, under the circum-
stances, the proper course ; but is there any reason to
suppose that if, after the panel had been once called over,
and before any further step had been taken for the form-
ation of the jury, jurors on the panel who had been called
and did not at first answer had come into court in suffi-
cient number to make a full jury, they would have been
rejected, and the crown would have been put to assign
cause for its challenges? No doubt it may be
assumed, primd facie, that all the jurors on the panel are
in court when the panel is called over, and if, when it has
been once called over, there is not a full jury made, the
usual course would be immediately to call the names over
again, and to put the crown upon assigning cause of
I
PROCEDURE ACT. 323
the eHect that the panel may not be called over a-min
jurors .n the panel who may have come into court and
who may make np a Ml j„ry. without puttin! T o'owa
to assign cause of challenge." tiown.
On a public prosecution for libel by order of tT,o
attorney gen™,, .c lea does notapply.-V* ;^J^
13Q.L. M. 99. But m all trials for libels upon pnvati
.nd,„duas,th,s section applies, even when the prosec" ion
conducted by a counsel appointed by and representing
the attorney general.-ij. v. Paiteeonje If. OqTi29
one hair o, '^JXZulT\'S:^ ?' ^''' J"™?> --^-"
E«ase, a„,l those whom ho return, 1 ,111^?^"^ f "f '""' ''"•
-, V ai:;rp„:ZeTarf :rr.Li:T, ^T" '» ^^
1 11 , , "'viucQ, 80 that he sha on v have tliP r^,fT^,^ f^.
challenc'e one ha f of such niimKo^ p.^ V''^ »"' *°
i«.™a;,l„„eha,r.f tro;^L're„:7;^e ;L £'1:'''"'°^
The right to a mrfirfafe linguw jury exists ia misde-
meanors as m felonies._JJ. v. Maguire, 13 Q. L. R. gg.
hub-soc. 2 of sec. 7, 27-28 V., c. 41 (1864) clearlv
g>ves that right to any prosecuted party. And though
he Quebec egtslature, by the 46th V., c. 16, s. 62 (1883 )
has repealed the said act, this particular clause, givin,
tit n 1'"',"'* '"''■ ""■'* •« °™'-'^^»'l ^ 'till ia
foioe, the Quebec legislature not having had the ric-ht to
1:1!
m
824
PROCEDURE ACT.
repeal it. Otherwise, there is no statute in the Province
giving the right to a mixed jury, in any case whatever,
sec. 166 of the Procedure Act, merely taking it for granted
that the right exists. If the Quebec legislature had the
power to repeal that clause, the Dominion Parliament had
not the right to enact for Manitoba section 167 of the
Procedure Act.
By sub-sec. 2 of the aforesaid section 166 of the Pro-
cedure Act, the number of peremptory challenges to which
the prisoner is entitled is divided equally between the
jurors of the two languages ; but, in misdemeanors, the
defendant has the right to exercise all or any part of his
peremptory challenges indifferently, and without regard to
the language of the jurors.
Where in a case of felony, in which one half of the jury
on the application of the prisoner, were sworn as beina
skilled in the French language, it was discovered after
verdict, that one of such French half was not so skilled in
the French language. Helcl, that the trial and verdict were
null and void.— i2. v. Chamaillard, 18 L. C. J. 149.
The right to have a jury, composed of at least one half
of persons skilled in the language of the defence, must,
undoubtedly, both in Manitoba and Quebec, be exercised
upon arraignment. Immediately after arraignment, tho
venire is presumed to have issued, and if it issues - •^■— if,
this order, the jurors must be summoned in the ucaai
ner, that it to say, without regard to language.
In R v. Dougall, 18 Z. G. J. 85, it was held by Mi.
Justice Eamsay : 1st. That where the defendant has asked
for a jury composed one half of the language of the defence,
six jurors speaking that language ma^/ first be put into the
box, before calling any juror of the other language; 2nd.
That the right of the crown to tell jurors " to stand aside,"
raoCEDDEE ACT.
exists for misdeniBanors as ««ii r , ■
when to obtain six Z« T .° "'/''""'"^ ■• ^"^^ "»"
defence, all apeakinVthriar ? """ ^"«""'' »' ">«
crown is stilllt libfr tyt "haliT ';™ """ '=""^''' '"e
Mr. Justice Ra„,a, slid: ' i' e^^tn::" " '^^T^'^"-
alternately from the English andl? I ^^"'■°" """"»»
'■' -ction 40,„owsection 166of Ipr" . *' "^""""^'^
directory, a„d app.fe, only to the calW of .7 •^"'' '^ ™'^
nary cases, where no order ha, 7 ^ ^''•''"•^ '» ""^i-
posed of one half En.M. and o„ \" f^T '" " J'"'^ «™-
™ reserved, by the trn d -.d: t fh"""- . ^""^ «-
the full court, but only on thel . '^ """•'^deratioa bf
tioned, given in the s uJm v „? the" ""'^'^ '"'"^^ ■"»-
of the court, at page 242 18 T n t '''^'' °' "•" '''*'^«»»
to obtain si. jurors speali" ^, V'' "' '°"°"^ ^ " ^hei^,
(English,) the list of';u^rs"'""'T "' ""^ "^'^^o
»ned, and several wero:ieT:,t/the'' ""'''"'" ™^
aside; and the sixEnc^lish ..JIw ■ ""'""'" '» ^'-^d
clerk re.commenced o ,11 tht ""fT "^'"^ '™™. «>«
'i't; of j-ors speaking :he EnZTl^C '^'f ^™'» ">«=
and one of those (En°lish-> ST , f °°'' '""Stages,
aside" was again Llkd ^^7 ^a! ^b"*"" '" "'""'O
aside" stood good until th„ n i Previous "stand
names on bot°h listltiJS. ™' ^^""'^^ ^^ »" ""e
This was the only point reserved and tb„ >
ded, ami that could be decided bv tl« r m ^ """ '^"''-
V Mr. Justice Ramsay "Be the n , ! " °"""- ^^ »»M
0^ -t, the court b. noalX'^ZlZl' 'T"""
cTOursion into other matters i, tjl ^ '' """^ ™y
«tbout jurisdiction." 1 refer nee f'' T"""'^'' *■<" «"<»
fa -fo'W.^'^ case wouU lead to tb '"<■ " ''^'="^=''"" "
«i«Jority of the judges 1 e„f ' """' '*»' *«
J ages «eie of opinion that, in all such
826
PHOCEDURE ACT.
cases, the jurors should be called alternately from the tWo
lists, and tliat, if by consent of the parties, six jurors of
one language have first been called and sworn from one
of the lists, as in this case, then the calling from tliat list
should go on from the sixth juror sworn, and not begin the
said list over again. It does not appear by any of the
remarks of the learned judges in this case why, when a
jury composed ui six English and six French has beea
ordered (the defence, say, being English,) the list of the
English jurors is not first called till six English jurors are
sworn, and why the list of the French jurors is not then
called over till six French jurors are also sworn.
167. Whenever any person, who is arraigne(l before the Court of
Qiieen'd Bench for Manitoba, demands a jury composed for tiie one
lialf i*t least of persons skilled in the lanj^uage of the deleuce, if such
language is either English orFrencli, he shall be tried by a jury com-
posed for the one half at least of the persons whose names stand first
in succession upon the general panel, and who, on appearing, and not
being lawfully challenged, are found in the judgment of the court to
be skilled in the language of the defence:
2. Whenever, from the number of challenges, or any other cause,
there is, in any such case, a deficiency of persons skilled in the lan-
guage of the defence, the court shall fix another day for the trial of
such case, and the sheriff shall supply the deficiency by summonini^,
for the day so fixed, such additional number of jurors skilled in the
'anguage of the defence as the court orders, and as are found inscribed
next in succession on the list of petit jurors :
3. Whenever a person accused of treason or felony elects to be
tried by a jury composed one half of persons skilled in the language of
the defence, the number of peremptory challenges to which he is enti-
tled shall be divided, so that he shall have the right to challenge one
half of such number from among the English speaking jurors, and on'-
half from among the French speaking jurors:
4. This section applies only to the Proviuce of Manitoba.— 3i V.,
c. 14, ss. 3, 4 and 5.
See remarks under preceding section.
168. Whenever, in any criminal case, the panel has been exhausted
by challenge, or by default of jurors by non-attendance or not answer-
PROCEDUIIE ACT.
>ng vvl.en cullcl. or from nnv n
*-•«' Of Huch ca.e oan„: , 'L Z ZT' T' ' -'"^'^'^ i-^ for the
'''-'-'riiroro.lK.rproporoffl;r;r: /^'^^ ''" ''^'^^'■'''^'•' ^'''Jer
«ood ,„on of the dintriot. cZtro " '''''''""^'^" ^"'^'' "'''•''•er of
J"ror« or otherwise V^aiMZZl' ''''^'"'- °" '-^^ ^^^^ of
2- Such wheri/r nr nffl ' ""^^ "P « full jury:
;;;o;.H.orin .wti;;iet:j : /r::r' -^ '-^^ ^^ -^ ^^
"o«, ,u,d „u,j t,,^i,. -^01 persons he ,« .« .eqnire.l to Bum-
«erve '^tthat court, an^ « I 'Jt T^e T."' °^-'"^^^« -^-""d
he accused respectively, a to ZLt '"•' "' ^''^ ^'•°^^" ''"J of
' ;e persons whose names are so a I?' ■"■'"''■"" ^^ «t«"<Uside.
otl.erwi.se cpmlified or not, be ,eem d d. T "",'"'"' '""^''' ^^'-'^e
ase, and so until a compi to Jn r oLl ^'^"'^'f'^ '^^ J--« i" the
I"-oceed as if such jurors were oriilll ?'' ""' "'^ t'"''^' «''ail then
-' the panel , and if, before s cl X '''nr "'"' '"'^ ""'' -^^"'-Jy
-;ora oradn.itted u"cha]lengedot,;i '??""''" Pereonshuve been
c-J on tlie jury, or fhe jury ,„av U f ' ' '" '''' '^'"-^ '"'^y t'e retain-
•^- Every person solu.Lredlr-'"''^^''^^ ^'- ^--^ ^i'-ects :
act .n obedience to the sumZ' and 71 ''"" '''''''^'''^ '^"^"^ and
P.w..shable in ,ike n.anner aTaZ^oTiL: T '" '^'""'^ ^'^^ ^e
M.ch jurors so newly eununonei shal h ' n"^ '" the usual way; and
ca.e only.-32-33 V., c. 29. ,. 4I GO 1 ^ '° '"'^ P""^' ^^^ «uch
apociall, enacts that 3,.eh „ Z /umT™?' ^"'' °"'"-
vidod for shall be added to th^ '""T""^ "" ""^'■^'■' ?■■»- '
-'-I. such order hasten given'""' ""'^ ^^ "^ «- i"
J !
I . :
Wi'
m
' I
'■ ii.
828
PROCEDUIIE ACT.
1*1 r
that the party convicted bo tried again, ns if no trial had
been had in such case.— ft v. Derrick, 23 L. C. J. 239.
It is a general rule that upon a criniin.d trial there can
be no se,.aration of the jury after the prisoner is given
in their charge, and before a verdict is given. The above
enactment restricts the rule to felonies ; in fact, it seems
to have always been admitted that in misdemeanors the
jury might be allowed to separate during the trial — ij! v
Woolf, 1 aatty's Rep. 401 ; R. v. Khmear, 2 B <£• Al
462. '
But, even under the above clause, there is no doubt
that, generally speaking, the judge ought not to allr.w iho
jury to separate after they have been addressed by the
court and their deliberations have begun. In fact, some
judges never allow the jury to separate, and if it can bo
done without too much inconvenience, this is, perhaps
the best practice. When, however, such separatiou is
permitted, the judge ought to caution the jury against
holding conversation with any person respecting the case
or suffering it in their presence, or reading newspaper
reports or comments regarding it, o. the like.~-l Bishon,
Cr.Proc. 996. . ■'
The doctrine that "a jury sv/orn and charged in case of
life or member cannot be discharged by the court but
they ought to give a verdict," is exploded, and it may now
be considered as established law that a jury sworn and
charged with a prisoner, even in a capital case, may be
discharged by the judge at the trial without giving a vor-
diet, if a necessity— that is a high degree of ne'ed-for
such discharge is made evident to his mind. If after
deliberating together the jury say that they have not
agreed, and that they are not likely to agree, the judcre
may discharge them. It lies absolutely in his discretion
829
PROCEDURE ACT '
j;"-y box and „bo t|,„ ° """="'' ''/ "ny ouo, left the
J>"y W.S em,,„„,li„j, T, «'""« » venhct, and „ freah
«"-' convicted b„f„,„ „,„ ^^'^^ --then tned «n«w.
A V. fKarc;, 10 Cox, 573. * ■"'°'' '"'^ right.-
Jf a juryman i,, tiikon ni .
«"c"Ji«g tl„.„„j,u the t,M,'Z ZJ° "" '""'P'"''^ "f
»'"' *e trial and e.an.inat „n „ 2'/"°'' '" "'^'"'"'■S"''.
sa>n, another juror being adlf^'^^^^^ beg,.„ ove
tbat case the pionerahouwtff , '° '''^™"; ''«»
«gau>,a, to the eleven, and tlL 7 'I "'"'"«'8«3 over
^^"''"'rt, 2 icao/., 620 ■ ni „ ' ^^^ '' »«« »lso 7J. v
A V. tfouw, 3 £„„^_ gg' ^- ^- -B^-^, a M. <£■ ifcj, 472;'
In R. V. Murnhij 2 n r n
l-> been given in^l^eLtfurfi""" ">^ P"»»er
ed or one day. on account of hi „?^^; ""„""'," »asadjourn-
IJut when auch a trial has to b^K ' '"'"""■
"ot regular, whether the , rLoner °"''° °''' ''°"'""' « ^^
■natead of having the witno'seretl, "'"T" '" '' "' "»'.
to «.»ply call and swear tl erover"' """ ^''^ ^
-or the notes of their evMenTta?""; '"" "'^" '^"d
tbe first trial, even if. then, each 'vitt" "" ""^ J'"'-"'^ ^
'>•- 'ead was trne, and is nbn t d ?!, "' "*"" '^ *'>»'
counsel on either side to fre h 2l ■' P''^"^''« ■>' 'he
exa,ninatio„.-i(j, tf« p,, c,;"^' ^f "f ™ «"<! cross-
W Vox. 018. ■^ ''""'"«'' 'a -S. V. &rtm«d,
li
830
PROCEDURE ACT.
Although each juryman may apply to the subject before
him that general knowledge which any man may be sup-
posed to have, yet if he be personally ucquainted with
any material particular fact, he is not permitted to mention
the circumstance privately to his fellows, but he must
submit to be publicly sworn and examined, though there
is no necessity for his leaving the box, or declining to in-
terfere in the verdict. — i?. v. Eosser, 7 C. <So P, 648 ; 2
Tatjlor, Ev. 'par. 1244; 3 Burn, 96.
A juror was summoned in error, but not returned in the
■ panel, and in mistake was sworn to try a case, during the
progress of which these facts were discovered. The jury
were discharged, and a fresh jury constituted. — R. v. Phil.
lips, 11 Cox, 142. It is not necessary when a jury are
discharged without giving a verdict to state on the record
the reason why they were so discharged. — R. v. Davison,
2F.&F. 250 ; 8 Cox, 360.
The rule is that the right to discharge the jury without
giving a verdict ought not to be exercised, except in some
case of physical necessity, or where it is hopeless that the
jury will agree, or where there have been some practices
to defeat the ends of justice. If, after the prisoner is given
in charge, though before any evidence is given, it is discov-
ered that a material witness for the prosecution is not ac-
quainted with the nature of an oath, it is not a sufficient
ground for discharging the jury, so that the witness might
be instructed before the next assizes upon that point, and
a verdict of acquittal must be entered if the prosecution
has no other sufficient evidence. — R. v. Wade, 1 Moo. G.
G. 86. — R. V. White, 1 Leach, 430, seems a contrary deci-
sion, but is nov/ overruled by the above last cited case.
Where, during the trial of a felony, it was discovered that
the prisoner had a relation on the jury, Ersldne, J.,, after
•PROCEDURE ACT. '
consulting Tiiidal C T i i^ ' ^^^
■<li«^>a,.ge tl,o j..; but Th af If ^' '^ "-' "" Power to
4te;tS:ii:tf-r-
ttejmy of l,i,„, that he L« t ^ ^.^ ^^ '""J' *'^'='""-ge
ct^->!. of the Pmcedure Aet and , ' ''f ^''■"' '"="°"' 232
. In JCinhch-s case. ;■<,.« ie 1 ?'*' "'^'™""--
« J"'y can be lawfully disoLL ''^•' '' "■"' ''<^W 'hat
defendant to withdn./h "if j '^ ""^ '» ■'"ow the
plead in bar. ^ *•" °' not guilty, " and to
On a writ of error fl.«
t»ejudgedi.ha:™d tTuTatr*"' ™ "'^ «^>
conseqnenee of the disappear'! f'^ '""' ''"'"'■ in
frown, a„d the prisoner wa™ d / "'"'^^^ '°' ^^
J-'go had a discretion to d^chZ , '^: ""''"' """ ">e
of error could not review tlat th! r f'^ "'"'='' " <=°nrt
without a verdict was not 1. ""^"'^^ "^ "'e jury
that the prisoner n.i4t tTt™ "' '° ™ ''»^"'"'". " d
A jury had been sworn on ,\,
Fi-nor on an indictment fortufdfT "'^' *" "^ "«
the trial, one of the jurors was rfT /" ""^ """'^^ of
from a honse where ther wrstt'""'^ "r™" "^ ™« "
«sumed before a new jury thet *"• '''"' ™»« being
having been once mLt^.T'lT'rT'''-^^'^ 'ha'
could be had. The conrf ^ I ^ '"' ''f'*' no new trial
Conndine, 8 Z." 307 "'"'"^'' «'^ °hjoction.-J C'
W'li/;
il'i
/
832
PROCEDURE ACT.
I i'
f«*rv
A juror may be a witness. He is then sworn without
leaving the jury box. — 2 Taylor, Ev., par. 1244. Seei2.
V. Mosser, under preceding section. Under this clause,
it is probable that the whole of sect. 7 of the 27-28 V.,
0. 41 (1864), is still in forco in the Province of Quebec
(see remarks under sect. 166, ante,) except sub-sees. 8 and
9 thereof, which are repealed by 49 V., c. 4 (D.)
VIEW.
171. Whenever it appears to any court liaving criminal juris-
diction or to any judge thereof, that it will be proper and necessary
that the jurors, or eonie of them, who are to try the issues in such
case, should have a view of the place in question, in order to their
better understanding the evidence tliat may be given upon the trial of
such issues, whether such place is situate within the county or united
counties in which the venue in any such case is laid, or without such
county or united counties, in any other county, such court or jud<»e
may order a rule to be dra\ ii up, containing the usual terms, — and,
if such court or judge thinks fit, also requiring the person applying
for the view to deposit in the liands of the sheriff of the county or
united counties in which the venue in any such case is laid, a sum of
money to be named in the rule, for payment of the expenses of the
view.— 29-30 F. (,Ca7i.), c. 46, «. 1.
172. All the duties and obligations now imposed by law on the
several sheriffs and other persons when the place to be viewed is situ-
ate in the county or united counties in which the venue in anv such
case is laid, shall be imposed upon and attach to sucli sherirts and
other persons when the place to be viewed is situate out of tiie county
or united counties in which the venue in any such case is laid. — 29-
30 F. iCan.), c. 46, s. 2. 6 Geo. 4, c 50, s. 23, Imp.
The original statute, 1866, extended only to Upper
Canada. It was passed to give the power of ordering a
yiew out of the county in which the venue is laid. See
R. V. Whalley, 2 C. S K. 376; R. v. Martin, 14 Cox,
633 ; and R. v. Martin, 12 Cox, 204.
SWEARING WITNESSES BEFORE GRAND JURY.
173. It shall not be necessary for any person to take an oath ia
PBOCEDURE ACT. V.
open court i„ orJer to qualify him t. ■ -. ^^^
-i<4:, Tlie foreman of H
g>-«»J jury, who ,„ f tlirtimTh ■''"'■' '"'' '">■ """'ber of li,.
i" 'l.e """"nation ;f ^ j"° ''='"&«'»" beh.lfof ihe J„„a,t
■nclictmen,, .„j every »uchn.r° '" '"PP"" "f "nv E
C 5- R C, c. 109, „. 3 „ J 6, part , C S / ;!' "" ''" ■)"«'ion.-
178. The „ame of every JiL, ' f ^ ' "^ '"'' " '•
™.nined, Bhall be e„d„r,i^r,re\,r„r''^.°'' '»'•»■''•''» l» s»
»>■'" Of the gra,dj„y, „, a„;Ve,,te,''°[ '"<''«";»', and the fore"
111.., shall write hie initial, L^ZtL'^''""'' '"'^ "> '^"<'S for
^.i;™.^u,a„i„ed.onehi,,:,:iti"<:^'::i.:,::V:^:T'ia:
bi "f;„di^;:er:,::,;re:i::i".rr ^ !r -">^- „„ a.^
pr«eou.i„g on behalf of the cCn l^d '' om'"' ^^^ ''^ "" "«-'
4oL!:;ryi:fLt.~tren-t'^i---'« '»
^a.,,e a, ,f .,e „,„eeees b^ bee^ .tT ^^ t';-/- ^.a^' ^
to the prisoner the ri^ht, b fo~ nit T"'"" ''°"''' ^"^«
indictment be sent back'to the "Lt - """ ""^
to«.ofurema„toaoi„itialthe„aCro ^e^f " ''"""™
■°«<l- In a case ia Illinoia ,,„T """<'''«"''am-
i' -- Mi that the stTuTrj^^rrf ^"-'-«.
grand jnry to note on the indictrn^f^ '"■"""'" "f "">
-upon.ho3ee.Mene:rretr:;Lt.t-
834
PROCEDURE ACT.
i
^m•■^
tory, and that a disregard of this requirement would, no
doubt, be sufficient ground to authorize the court, upon a
proper motion, to quash :... indictment.— Andrews x. The
People, 117 III. 195.
See Thompson on Juries, 724.
Under sec. 143 of the Procedure Act, amotion to quash
the indictment upon such a ground must be made before
plea, and upon such a motion the court would send the
indictment back to the grand jury to remedy the defect.
If the grand jury has been discharged, the indictment
it seems, must be quashed. It is the practice, on many
circuits in England, ami a very proper one it is, not to
formally discharge the grand jury i 'I the end of the assi-
zes, so that, if necessary, they may be called back, at any
time, during the term.
With the grand j ury's consent, the witnesses before them
are examined by the crown prosecutor or clerk of the
crown, or by the private prosecutor or his solicitor. But
the grind jury must be alone during their del iberations.-
1 Chit. 315; 3 Burn, ?') ; charge to grand jury, Drum-
mond, J., 4 R. L. 364. Stephen's Cr. Proc. AH. 190.
Not more than twenty -three grand jurors should be sworn
in. But any number from twelve to twenry-three consti-
tutes a legal grand jury. At least twelve of them must
agree to tind a true bill. If twelve do not so agree, they
must return " not found," or " not a true bill," or " ignora.
mus" ; this last form, however, is not now often used.-
4 Stephe7i'8 Bl. 375 (mh Edit.); 1 Chit. 322; 2
B.Ar. 1U89 ; 3 Burn, 37; R. v. Marsh, 6 A. & E. 2-6Q;
Dickenson's Quarter Sess. 183; Stephen's Or. Proc. AH.
186; Low's case, 4 Greenl. Rep. (Maine) 439 ; 3 Whaii.
Cr. L. p>avs. 463, 497.
The court will not inquire whether the witnesses were
PBOCEDURE ACT. * 835
properly sworn before ,l,e grand jury. The grand jury ara
athbertytofind a bill .,p„„ their own IcLledgHnTv
-fl. V. Il,,^ll, a i M. 247 : Stephens Cr. Prle. Z.
The conn will not receive an affidavit of a ^rand juror
a, to what pa,eed in the grand j„ry room upon Jhe sab eo
the .ud,etn,ent.-A v. Marek. 6 A. I E. 236 ^
allow one of the.a to be called a, a witness to explai^ tl e
finding.— ft V. Cooke, K C. S fi 582
Oa the trial of Alexander GiUis fo; murd.-r, his counsel
called the foreman of the grand jury which found the biU
agamst hu„ to pmve that a witness's evidence before ,he
the trial The counsel for the crown objected that a »,and
juror could not be allowed to give evidence of wh!t took
place m the grand jury room :
Held, that a grand jnror's obligation to keep secret what
transpired before the grand jury only applied to what took
place among the grand jurors themselves, and did not pre-
vent his being called to prove what a witness had said -
B. V. GtUw, 6 C. i. T. 203.
E« "!'' n'f T ^''2!'"-'-^"- P*^- 863. Also, St^pken.
EvaH. 114 where it is said: "It is also doubtfu
w ether a grand juror may give evidence as to what any
witness said when examined before the grand jury."
TRIAL,
178. Every person tried for any indictable offence «l,.ll k. .j ■.
.!» prosecution, .,i. intention to .dducetvid™t, IrirL''. Z^t
■n \
836
PROCEDDRE ACT.
»
adJress the jury a second time at the close of such case, for the pur-
pose of Bumming up the evidence; and the accused, or his counsel,
shuil theu be allowed to open hie case and also to sum up the evi-
dence, if any ie adduced for the defence; and the right of reply Biiail
he according to the practice of the courts in England : Provided always,
that the right of reply ahall be always allowetl to the attorney gen-
eral or solicitor gtneral, or to any Queen's counsel acting on belialfof
the crown. — 32-33 V., c. 29, s. 45, pari.
The 1.' ' i*" stoou formerly, did not allow a prisouerto
be defenc . counsel in any felony except high-treason.
On this, Bouc/csione says (Vol. IV. 355) :
"But it is a settled rule at common law that no counsel
shall be allowed a prisoner upon his trial upon the general
issue, in any capital crime, unless some point of law shall
arise proper to be debated. A rule, which (however it may
be palliated under cover of that noble declaration of the
law, when rightly understood, that the judge shall be coun-
sel for the prisoner, that is, shall see that the proceedinas
against him are legal and strictly regular,) seems to be not
at all of a piece with the rest of the humane treatment of
prisoners by the English law. For upon what face of reason
can that assistance be denied to save the life of a man,
which yet is allowed him in prosecution for every petty
trespass ? "
In England, the 6-7 William IV., c. 114, was the first
statute pasf I to " enable persons indicted for felony to
make their defence by counsel or attorney," and the ad-
dresses of counsel to the jury in felonies and misdemean-
ors are now regulated by the 28 V., c. 18, s. 2, as follows:
" If any prisoner or prisoners, defendant or defendants,
shall be defended by counsel, but not otherwise, it shall be
the duty of the presiding judge, at the close of the case for
the prosecution, to ask the counsel for each prisoner or
.defendant so defended by counsel whether he or they
PROCEDURE ACT.
837
intend to adduce evidence, and in ti.e event of none of them
thereupon announcing his intention to adduce evidence the
counsel for the prosecution shall be allowed to address
the jury a second time in support of his case, fur the purpose
of summing up the evidence against such prison-u- or
prisoners, or defendant or defendants, and upon every trial
for felony or misdemeanor, whether the prisoners, or defen-
dauts, or any of them, shall be defended by counsel or not
each and every such prisoner or defendant, or his or their
counsel respectively, shall be allowed, if he or they shall
think fit, to open his or their case or cases respectively;
and after the conclusion of such opening or of all such
openings, if more than one. such prisoner or prisoners or
defendant or defendants, or their counsel, shall be entitled'
to examine such witnesses as he or they may think fit and
when all the evidence is concluded, to sum up the evidenca
respectively; and the right of reply and practice and oourse
of proceedmgs, save as hereby altered, shall be as at pre-
sent." See II v. Kain, 15 Cox, 388.
It will be seen that the only difference between the
English and the Canadian clause is, that in the former it
is only when the prisoner is defended hy counsel that the
counsel for the prosecution is allowed to address the jury a
second time, after his evidence is over, when the conn-3el
for the defence does not declare that he intends to adduce
any evidence, which it is the duty of the presiding judge
to ask him at the close of the case for the prosecution;
whilst m the Canadian clause this right is given, whether
the defendant be assisted by counsel or not, and he or his
counsel are required to announce at the close of the case for
the prosecution their intention to adduce evidence or not
without the clause making it obligatory on the presidium
judge to ask the question, though in practice it is obvious
838
PROCEDURfc; ACT.
that the judge will always ascertain the intention of the
defence on that point, before allowing the prosecutor to
sum up when he desires to do so.
The addresses of counsel, as regulated by this clause
179 of the Procedure Act, are therefore to take place as
follows : —
First case : When no evidence for the defence.
Address of counsel for the crown, opening the case •
crown's evidence ; defendant or his counsel declares tluit
they have no evidence to adduce; counsel for the crown
sums up ; defendant or his co.insel addresses jury ; reply of
coim-sel for the crown, but only if attorney or solicitor-
general, or Queen's counsel, atitiug on behalf of the croua.
Second case : Where the defence adduces evidence.
Crown pros cutor opens the cuse ; evidence of the crown;
defendant or his counsel addi esses the jury; defenduiit's
evidence ; defendant or his counsel sums up ; reply of prose-
cution in all cases.
[n the first case supposed, the counsel for the {.rosecu-
tion never in practice exercises both the rights of summing
Up and replying ; if the counsel is not the attorney-gencnii
or solicitor-general, or a Queen's counsel acting on helialf
Of the crown, he has to sum up the evidence, after it is
6ver, as he is not allowed to reply ; if he is the attonuy-
general or solicitor-general, or a Queen's counsel acting oq
behalf of the crown, he, in piactice, does not sum uj), as he
is entitled to reply, whether the defendant adduces evidence
or not, though in England this right is very seldom exer-
cised, where no evidence, or evidence as to character only
is offered ; see post.
In the second case supposed, in practice the defence
adresses the jury only after its evideisce is over ; two
addres-ses would genemlly have no other result but to
lengthen the trial, and fatigue court, counsel, and jury.
PflOCEDURE ACT.
839
Opernng of the counsel for the prosecutwn.^A pris.
oner charged with felony, whether he has been on ba'l or
no . must be at the bar. viz.. in the dock durin,. his trial
and cannot take his trial at any other part of the court
ITrX^' r"": "^ ^'^ P--cntor.^i^. V. St. Gear,:,
9 C. C& P 48D A merchant was indicted for an offence agaias
the act of parliament prohibiting slave-trading (felony; H '
counsel applied to the court to allow hini to^it by him
not on the ground of his position in society, but because 2
was a foreigner, and several of the documents in the case
were :n a fore.gn language, and it would, therefore, be
convenient for h.s counsel to have him by his side, tha he
might consult h,m during his trial: Held, that the appli!
cation was one which ought nci to be grante.l -i^ v
Zaluetal C.^ K. 215; 1 Co., 20. A similar applicaiioa
/ 1 M^oT p V^ "*i ''''' "^"-^ "^ ^- V- Douglas,
G. ^ M. 193. But m misdemeanors, a defendant who is
on bailand surrenders to take his trial need not stand at
the bar to be tried—/?, v. Lovett, 9 C. d; P. 4t52 A pro
secutor conducting his case in person, and who ' is to be
examined as a witness in support of the indictme.it. has no
right to address the jury as counsel; B. v. Brice, 2 B &
t. J \T* '^^^^^**'^' I>icHnso7i's Quarter Session.
152; iJ. V. Ourney, 11 Coa,, 414. where a note bv the
reporter, supported by authorities, says that such is th^ law
whether the prosecutor is to be a witness or not
Sergeant Talfourd, in Dkkinson's Quarter Sessions
49a, on the duties of the counsel for the prosecution s. vs '
-" When the counsel for the prosecution addresses the
jury in a case of felony, he ought to confine himself to a
simple statement of the facts which he expects to prove-
but in cues where the prisoner has no counsel he should
particularly refrain from stating any part of the facts, the
(li-
st
h
f
'3:
840
PfiOCEDURE ACT.
proof of which from his own brief appears doubtful, except
with proper qualification ; for he will either produce on the
minds of the jurors an impression which the mere failure
of the evidence may not remove in instances where the
prisoner is unable to comment on it with effect ; or may
awaken a feeling against the case for the prosecution,
which in other respects it may not deserve. The court, too[
if watchful, cannot fail, in the summing up, to notice the
discrepancy between the statement and the proof. But in
all cases, as well of felony as misdemeanor, where a prisoner
has counsel, not only may the facts on which the prose-
cution rests be stated, but they may be reasoned on, so as
to anticipate any line of defence which may probably be
adopted. For as counsel for parties charged with felony
may now address the jnry in their defence, as might always
have been done in misdemeanor, the position of partit-s
charged with either degree of offence is thus assimilated in
cases where they have counsel, and it is no longer desirable
for the prosecutor's counsel to abstain from observing
generally on the case he opens, in such manner as to
connect its parts in any way he may think advisable to
demonstrate the probability of guilt and the difficulty of au
opposite conclusion. But even here he should refrain from
indulging in invective, and from appealing to the prejii-
dices or passions of the jury; for it is neither in good taste
nor right feeling to struggle for a conviction as an advocate
in a civil cause contends for a verdict."
On the duties of counsel, in opening the case for the
prosecution, it is said in Archbold, 159 :— "In doing so lie
ought to state all that it is proposed to prove, as well
declarations of the prisoners as facts, so that the jury may
see if there be a discrepancy between the opening state-
ments of counsel and the evidence aftsrwards adduced in
PROCEDUKE ACT.
841
upport of them : per Parke, B., R. v. ffaHd, ^ C. 4c P
t.o„M anumnt to a confemon, when, it would be iltpe
tins rule ,3 that the circuraatances under which the con-
The general effect only of any confession said to have
been made by a prisoner onght, therefore, to be men ol!
Mr. Justice Blackburn, in Ji. v. B«w,,4 i? ^ ;!■ 840
853, sa.d that the position of prosecutfng Ml fj
« cr,m,„al ««e is not that of an ordinarf co, "sel "
a c,v, case but that be is acting i„ a gnan d tiL
capac. y and ought to regard himself as part of th c^Z
■a wh,Ie he was there to conduct his cL, he was^o do
.t a h,s d,scret.on but with a feeling of res^onsibili y „ot
as .f trymg to obtain a verdict, but to assist the L °
m ^i^,r,y puttmg the case befo« the jury, and noSg
In M V. Pudduk, iF.iF. 497, per Crompton, J the
counsel for the p«,secution '■^,, to regard thems Iv'^s aa
m.,,,., er, of j„sti<., and not ■. strugje for a con In
a n a case at nuv pn-us ; nor be betrayed by feelings of
pro^.ss,onal rivalry to regard the question at issue as ,n,
of profess.ona superiority, and a contest for skiU and
pre-cmmence." *''"
Summmg up by conned for th prosecution, where the
^fence Irnngc no eMencc.-lt has already bee . rema ked
tha m pmcfce, if the counsel for the prosecution Cthe
r.gh of reply and intends to avail himself of it, it would be
was c of t,me for him to sum up , but if the conn el h^
not the nght of reply („ to which see poet, under headfn^
842
PROCEDURE ACT.
u
reply,") ho wil! peiluips (iu.l it usoful to
review tlio evid-
ence US it has been juhlucvMl, mid give somoexpiuimtions to
th(! jury. Ihit it hu8 been liold in R. v. Piiddick, 4 F. d- F.
497, that the counsel for the prosecution ought not, iu
summing up the evidence, to make observations on the
prisoner's not calling witnesses, iinless at all events it has
appeared that he might be fairly expected to bo in a position
to do so, and that neither ought counsel to press it upou
the jury, that if they acquit the prisoner they may be con-
sidered to convict the prosecutor or prosecutrix of perjury.
Nor is it the duty of counsel for the prosecution to sum up
in every case in which the prisoner's counsel does not call
witnesses. The statute gives him the right to do so, but
that right ought oidy to be exercised in exceptional cases,
such as where erroneous statements have been made and
ought to be corrected, or when the evidence ditters from
the instructions. The counsel for the prosecution is to state
his case before he calls the witnesses, then, when the evi-
dence has been given, either to say simply, " I say nothing."
or "I have already told you what would be the substance
of the evidence, and you see the statement which I made
IS correct; " or in exceptional cases, as if something differ-
ent is proved from what he expected, to address to the jury
any suitat)le explanation which may be required.—ii. v.
Berens, 4. F. & F. 842, reporter's note. R. v. Holchester
10 Cox, 226 ; R. v. Webb, 4 F. <(; F. 862.
The defence.-^The defendant cannot have the assistance
of counsel in examining and cross-examining witnesses, and
reserve to himself the right of addressing the jury.— i;. v.
White, 3 Camp. 98 ; R. v. Parkins, 1 G. S P. 548. But
see post as to statements by him to the jury. But if the
defendant conducts his own case, counsel will be allowed lo
address the court for him on points of law arising in the
PllOOKDUHK Airr.
848
adlM.«s t,e couHfora prison.. dnrinK the trial ,.po„ a
IB that If the prisoner's counsel has a.l.lressed the jury the
pnsoner lumself will not be allowed to addn-ss' luf'j y
3A .6 iioft. 124; B. v. iiirfer, 8 C. Jh P. 531. The coun
sol for the defendant nuty comrneut on the case for the
FoBocution. He may adduce evidence to any ext, .t
ami even introduce new facts, provided he can establish
the u by witnesses. He cannot, however, assume as pn.ved
ha winch IS not proved. Nor will he l,e allowed to state
ny thing which he is not in a situation to prove, or to state
the prisoners story as the prisoner himself mij-ht have
Bishop says 1 Cr. Proc. 311 : "No lawyer ought to
.nlertnke to be a witness for his client, except when
he testifies under uuth. and subjects himself to cross -examin-
a .on, and speaks of what he personally knows. Therefore
the practice which seems to be tolerated in many curt, of
counsel for defendants protesting in their addresses to ^he
jury that they believe their clients to be innocent, should
bo frowned down and put down, and never be peru.itted to
show Itself more. If a prisoner is guilty and he comma-
".catos the acts fully to counsel in order to enable the
la ter properly to conduct the defence, then, if the coun-
sol IS an honest man. he cannot say he believes th. prig-
oner innocent; but, if he is a dishonest man. he will ,,3
soon say this as anything. Thus a premium is paid for
professional lying. Again, if the counsel is a man of
h.gli reputation, a rogue will impose upon him by a false
story, to make him an " innocent agent" in communicat-
844
PROCEDURE ACT.
ing a falsehood to the jury. Lastly, a decent regard for
the orderly administration of justice requires that only
legal evidence be produced to the jury, and the unsworn
statement of the prisoner's counsel, that he believes the
prisoner innocent, is not legal evidence. It is the author's
cherished hope, that he may live to see the day when no
judge, sitting where the common law prevails, will ever,
in any circumstances, permit such a violation of funda-
mental law, of true decorum, and of high policy to take
place in his presence, as is involved in the practice of which
we are now speaking."
On the same subject, it is said in 3 Wharton's Cr. L.,
3010: "Nor is it proper for counsel in any stage of
the case to state their personal conviction of their client's
innocence. To do so is a breach of professional privilege,
well deserving the rebuke of the court. The defendant is
to be tried simply by the legal evidence adduced in the
case; and to intrude on the jury statements not legal
evidence is an interference with public justice of such a
character that, if persisted in; it becomes the duty of the
court, in all cases where this can be done constitutionally,
to discharge the jury and continue the case. That which
would be considered a high misdemeanor in third parties
cannot be permitted to counsel. And where the extreme
remedy of discharging the jury is not resorted to, any
undue or irregular comment by counsel may be either
stopped at the time by the court, or the mischief corrected
by the judge when charging the jury."
Summing up by the defence. — The counsel for the pris-
oner or the prisoner himself is now entitled by sec. 179
of the Procedure Act ^t the close of the examination of his
witnesses, to sum up the evidence. — R. v. Wainwright.
13 Cox, 171. In practice, it is the only time when the
II
PROCEDURE ACT. g^g
counsel for the prisoner addresses the jury, and what has
just been said on the defence generlllj'applierto the
address to the jury. whether nxade before or after the exim
mation of witnesses. ^
A person on his trial defended by counsel is not entitled
the mouth his counsel, but may, at the conclusion of his
counsels address, himself address the iurv and IL k
statements subject to this, that what he ^yVCm b^^^^^^^^^^^^
as additional facts laid before the court, a'd entMinTthe
prosecution to the reply.^iJ. v. ^A^^^,, 15 CoxU2
Sse reporter's note. ' ''•
In E. V. Weston, 14 Cox 'id.R tUr.
11 , ' ^*"' *"6 prisoner's couii«!p1
va, allowed to „jake a statement «„ behalf of his Zt
Per Stephen J -A prisoner n,ay make a statement to
t IheXr^ '^ 'r " "''"■^ '"' — ''^ ^j-
totnejury.— ij. V. i/-asfers, 50 / P 104
A prisoner on his trial defended 'by «,unsel may at
the eonclnsjon of his connsel's address, make a stattmen
reply.— Ifte (;«eere y. Rogers, 2 B. O L It 119
J^^f' ^' I"*'"'"- ^^ '^'^' ^''^' *^ prisoners were aUowed
address the jury after their connsel. See S v 2//.
allowed only where the prisoner called no witnesses.
mMep,,..-U the defendant brings no evidence the
counsel for the prosecution is not allowed to ^T^Z
.f 1.0 be. accordmg to sec. 179 of the Procedure Act LatT
Clause these words ^ti^tltl" SltrC:
be read as applying to the attorney-general or soliS
genera,, as weU as to a Queen's counsel, so that, if not act-
846
PKOUKbUKK AOT.
ing on behalf of the crown in a case, the attorney gmieial
or solicitor general would not be entitled to a reply, if no
evidence is adduced by the defence. -3 Ru>is. 354, note.
On this privilege to reply, in cases instituted bv the
crown, it is said in 1 Taylor, Ev., pav, 3 .2 : " But ms
this is a privilege, or rath3r a prerogative which stands
opposed to the ordinary practice of the courcs, the true
friend of justice will do well to watch with jealousy the
parties who are entitled to exercise it. Mr. Home, so Ion r
back as the year 1777, very properly observed that the
attorney-general would be grievously embarrassed to pro
duce a single argument of reason or justice on behalf of his
claim, and. as the rule which precludes the counsel for the
prosecution from addressing the jury in reply, when the
defendant has called no witnesses, has been very lone
thought to afford the best security against unfa-rness in
ordinary trials, this fact rai.es a natural suspicion that a
contrary rule may ht.ve been adopted, and may still be
followed m State prosecutions, for a different and less leai
timate purpose. It is to be hoped that ere long this ques
tion will receive the consideration which its importance
demands, and that the Legislature, by an enlightened inter-
ference, will intr.»duce one uniform practice in the trial of
political and ordinary offenders."
If the defendant gives any evidence, whether written or
parol, the counsel for the prosecution has a right to reply
If witnesses are called merely to give evidence to char-
acter, the counsel for the prosecution is strictly entitled to
reply, though in England, in such cases, the practice is not
to reply.
In R. V. BignoU, 4. D. A: R. 70. Lord Tenderden re-
vived an important rule, originally promulgated b- Lord
Kenyon, and by which a reply is aUowed to the counsel
PROCEDURE ACT.
847
for the prosecution, if the counsel for the defond .,.. • . •
address to the jury, stotes any fact or anvd f ' '" '"'
See M. V. Trevelli. 15 Cox 2sg ■ b c , ' '''''^•
Evidence in rephj.-Whenever the defend».„, ■
dence to prove new matter by way of del„. ^ ? "'•
crown could not foresee the /n, 1 i f t ' "'"'='' "'«
entitled to give evidence in r!? ""* ^"'^'""''■•<"' i^
hedoe.not\dd::s fi; '^Itr''^'''''^
evidence. The geneml rZ .'^.^'^"'^'^ S'-'S ""o thut
n,u.t bear direetl" 'e,: nt t "*"" '» ■""'^
the defence, and ongh ntoJonrofL: '".'"'""''" °'
nect.d with the defence and T f ""'"'='■"■'»■>-
di.pnte it. This is the ge 1 tule ll'? "".f""'' "'
of ,,reventi„g oonfn3io„,lnbar::^:erad 41^.7
but .treats entirely in the discretion of the jlZ 2Zl
It ought to be strictly enforced or remitf»H . i, ""'-"'"
best for the discovery of truhaZM^ ^"""^ "''""'
of j«stice.-2 PUUi^- L fos "^ "» adn,n„.,t«tio„
Bob. 199 ; ie. V. Frosl 9 a ^ P 59 wf "T ' ""■ t
for the crown has, per incuriar., omit J "'","''"
of evidence before commencing 1 is SyliT^^"'"'.
justice m,ght be interfered wifh if The ewl'™ ''"'■"' °^
/iM ow«. _ When evidence is adduced for tl,. „, ■
in .p,y to the defendant, proo, tht irLrr:!
1 1
Ml
if;
848
PROCEDURE ACT.
Ill
ha8 a right to address tho jury on it, conlning himself to
its bearings and relations, before the general replying
address u. the prosecution. — DickiTison's Quart. Seaa. 565.
Witnesses may be recalled R. v. Lamere, 8 L. C. J.
380; R. y. Jennings, 20 L. G. J. 291. 2 Taylor, Ev
1331.
Charge hy the judge to the jury.— It is the duty of the
president of the court, the case on both sides being closed
to sum up the evidence. His address ought to be free from
all technical phraseology, the substance of the charge
plainly stated, the attention of the jury directed to tho
precise issue to be tried, and the evidence applied to that
issue. It may be necessary, in some cases, to read over
the whole evidence, and, when requested by the jury, this
will, 6f course, be done ; but in general, it is better merely
to state its substance.— 5 Burn, 357 ; 1 Chit. 632.
In 12 Cox, 549, the editors reported a case from the
United States, preceding it with the following remarks :
" Although an American case, the principles of the crim-
inal law being the same as in England, and the like duties
and powers of the judge being recognized, a carefully pre-
pared judgment on an important question that may arise
here at some time has been deemed worthy of a place for
any future reference."
The case is. Commonwealth v. Magee, Philadelphia,
December, 1873, decided by Pierce, J., who held that a
judge may, where the evidence is clear and uncontradicbed,
and the character of the witnesses unimpeached and un-
shaken, tell the jury in a criminal case that it is their duty
to convict.
For the same reason which induced the editors of Cox's
Eeports to insert this case in their columns, the full report
thereof is given here.
I'ROCEDUllE ACT.
umi. 849
inis was a motion fm. r
judgment on the grou^S of' T '""' "■«■ '" »"«^t of
the jury. ° '"'"'' "^ m.sdirect.0,, in the charge to
thritdanr t':&e1 T" k""'^ ^"^^^ »=-»,t
testified to having bo .4t 'j rt . r*" "''''''«»° -ho
danfs place witMn Z 'e^r T ^'^ "' *» "''f-
testimony. ''^ ' "'''e defendant olfered no
" There was nothino in n,^
nesses to call in question th7i '"^''"''.'" "■• """to of the wit-
degree to inapngnrelideZT''"' " " ">^ '"«"'-'
did not in any ^nner ontti;„'th 7°".^ '"' ''" ^^'•«»=»
b..t confined his addres, to the- °^""''''''"'*™o«.
law and the motives of the nrn!"'^ . "" ""** "P™ 'he
-der these oiroun,sfc.„c s:aMlTto ^'^ '"'^''''^
oaths and a^juit the defendant/ Thth d r^"" """'
sworn to try the case according to fh' '!!™ '"'■'■""'^
regard to their oaths wonid lead fhe!, I . '"™' »"<' *
»ion, the guilt „f a, ^^f^^^'^ ^'^ ""t to one conclu-
monwealth states the chart! f •* ^-^^'fonhe Con.-
declaredthathe had no Sta L? "^'^ '^''^J"'''"^
the evidence, it was the dutt^ m ''^"'°" ">="• ""der
diet of guilty under the billTf ,nd .' '"'^."^ """^'" " ™'-
whieh form of expression If^f ""'"'• ^"' "o ™^t'or
wUcb I had just XTheTrattr^ " T ""^ ^"''™«' '»
d»ty, and in view oU-^ZT" V'"' '''*^"^<' "■«'
ceive no error in this It Jl :TV' ™-'^- ^ Pe-
te convict the defendant T *.''''^*0" to the Jury
to their duty Jurrf'^- Jj- ^P'/ Pointing tU
office, whether it will ZaT •'''"" '""^'^ <»ths of
defendant, and they are not at liuTT.^- '"'«''"'«' »' "
todioted and unqLt.o °!, ! ' '"^ '" '"'■'og^'d nncon-
»^ Plaasure. ^W Tote':: Th7t V''' """' *^»
wever, the testimony is contra-
J££i£J
850
PROCEDURE ACT.
dieted by testimony on the other side, or a witness is
impeached in his general character, or by the improbability
of his story, or his demeanor, it would be an unques-
tionable error in a judge to assume that the facts testified
to by him had been proved.
In 3 Wharton's Cr. L., 'par. 3280, it is said : " Can a
judge direct a jury peremptorily to acquit or convict if, in
his opinion, this is required by the evidence ? Unless
there is a statutory provision to the contrary, this is within
the province of the court, supposing that there is no dis-
puted fact on which it is essential for the jury to pass."
See, also, 1 Wharton Cr. L., par. 82a.
See Mr. Justice Eamsay's charge to the jury in JR. v.
Dougall, 18 L. C. J. 90.
In R. v. Wadge (July 2'rth, 1878;, for murder,
Denman, J., remarked that " he had to take exception to
the request made to the jury by the counsel for the
defence, that, ' if they had any doubt about the case, they
should give the prisoner the benefit of it.' That was an
expression frequently employed by counsel in defending
prisoners, but it was a fallacious and an artful one, and
intended to deceive juries. The jury had no right to
grant any benefit or boon to any one, but only to be just
and do their duty."
In B. V. Glass (Montreal, Q. B., March, 1877;, the
counsel for the defence after the judge's charge asked him
to instruct the jury with regard to any doubt they
might have in the case. Eamsay, J., answered, " No, I
shall not, when there is no doubt."
When the judge has sumn 1 up the evidence he leaves
it to the jury to consider of tlieir verdict. If they cannot
agreo by consulting in their box they withdraw to a con-
venient place, appointed for the purpose, an officer being
PROOEDDKE ACT
. , 851
sworn to keep them, as follows • " V„,. in „
keep this jury without m at drink o/f "'" ™'' ""'^
excepted; yon shall not suffer" ' "^^ "'""'^ "e'"
them, neither shall you eperttM^ '""™ *" 'P^»'' '»
be to ask them if they 'f. Z"" '"'™''"'' ""'e^^ it
help you G^,_j ^^e;' ^Tj ,;" ^^ verdict. So
But this formality need not IZ
-or... The preeauUlarnrt: It '"-"^ "l '"«
jufy are noftd by the clerk !? ^'"8 "f "'e
they form no part of what is tedmUv k''^'""'' '"'
record. Consequently the recnll! ''^ ""'" "^ "'e
part of the prodding ^nnTh^feS"""^ "' '"'
In M. V. Winsor, 10 Cox 2Vf; pi' <■ t ''•■''•^2.
said that there was no authoritv f n "^ Cockbum
to the jury after they btve : fedl" ,":''"° "''=^'"»»''
verdict, and that he donbW t?. i ,"'''"' "P"" "'«••
would be justiHed in pit fug trruTe' ' 1'?" ^ J"''^-
act of his discretionary author yintd J " ^'"'P'«
ments during their deliberaZ ""^ "='■" "'''^'''■
In England a statute has been passed .U ■
common law rule on the subject 33 ?* v ^^^ "''
.n Canada, the law is yet as' abo elttir 'p '"'
V^mor, except in New Brunswi.l- I " ^ "■
by sec. 3 of 21 V c 22 that J 1 " " '" ^""''^'"^
necessary that the jury s'hali be c"or„ed to'th'f ''"'"' ''
the courthouse during the oroar^.r '° ""* P^o'ncts of
of any long trial for a rh nil^ tff "'' """ "' ^"P'""™
Fovide them necessary™ l*"™' '"« ^^<-'« ^hall
sl«.Il he paid by the 'coutytnylr'^r "/ "'"''"'
Ihe jury coming back t., the box f h^t ■ •
'°"'^'«'. :ri>e Clerk then c:i:r;:i:r:;\;™^^
i ';
!
U
852
PEOOEDURE ACT.
names, and asks them whether they agree on their verdict ;
if they reply in the affirmative, he then demands who
shall say for them, to which they answer, their foreman.
He then addresses them as follows : " Gentlemen, are you
agreed on your verdict ; how say you, is the prisoner at
the bar (or naming him, if the trial is for a misde-
meanor, and the defendant bailed) guilty of the felony
(or as the case may he) whereof he stands indicted, or not
guilty ?" If the foreman says guilty, the clerk of the court
addresses them as follows : " Hearken to your verdict as
the court recordeth it : yon say that the prisoner at the
bar (or as the case may he) is guilty (or " not guilty" if
such is the verdict received) of the felony (or as the case
may he) whereof he stands indicted ; that is your verdict,
and so you say all." The verdict is then recorded. The
assent of all the jury to the verdict pronounced by their
foreman in their presence is to be conclufjively inferred.
But the court may, before recording the verdict, either
proprio motu, or, on demand of either party, poll the
jury, that is to say, demand of each of them successively
if they concur in the verdict given by their foreman. — 2
Hale, 299 ; Bacon's Abr. Verb, juries, p. 768 ; 1 Bishop,
Cr. Proc. 1003.
The mere entry, by the clerk, of the verdict, does not
necessarily constitute a final recording of it. If it appear
promptly, say after three or four minutes, that it is not
recorded according to the intention of the jury, it may be
vacated and set right.— 72. v. Parkin, 1 Moo. C. C. 45 ;
even if the prisoner has been discharged from the dock,
he will be immediately brought back, on the jury which
had not left the box saying that " not guilty '' has bjen
entered by mistake, and that " guilty " is their verdict.—
B. V. Vodden, Dears. 229.
PROCEDURE ACT. o-,
Jock. c. R, ™a, i„ ^.; ;X "i';7»;f vt- . r
has a nght, aud in some cases it if ^ v ^ '""^g^
whethe, i,. a civil „. „ orimiX se to L Hh"' " """'
reconsider their verdict. He is no h' ^ ' •""■^ »"
verdict nnless they insist^ 'Ip .'"' '" ''''"" """•'
they reconsider thefr v^i ,[„ Xr 7 th " ' """7"^™
not the first, is rcal.y the v^di t X j '^"^ V"''
verdict, 5 Burn, 358; 1 CA^ij 647
A recommendation to mercv hv thl •
their ve:.ict.-fl. . r..S:X^^™ fj ^ ""'"r "'
Crawshaw, Bell, C. C. 303. ' ^' ^•
The saying that "a iudae h hon^ri * u
prisoner "is erroneous -CwdsjV^T' '" '"^
(7o:t, 181. "'- ■'•' "> -'*• V- ffifeon, 16
This is the 6-7 Will IV n ni
Statutes. •' °' ^^^' ^^«- ^ °f the Imperial
See the two next sections, and sec. 74, an^,.
181. Every person indicted for any crime r r .ff
being arraigned on the indictment be ent^L?"' ^^all, before
paying the clerk ten cents pTr b io fo" 1 1 \««P^ th^'-eof, on
copyoftheil^iell /reT'ori""' ™';?'^ "^ "
CAi^. 403. *^°'^^*^° oi" felony.— 1
182. Every person indicted shall be entitled fn
ue entitled to a copy of the
' 'I
864
'ROOEDURE ACT.
(lepoMtions returned into court on payment of ten cents per folio for
tlie name, pruvitled, if the sttrne are not demanded before the opening
of the assizen, term, sittingH or seHsioni^, tiie court iH of opinion that
the same can be made without delay to the trial, but not otiierwise ,
but the court may, if it sees fit, postfK>ne the trial on account of suci
copy of the depositions not l)aviiig been previously had by the persoi
charged.— 32-33 V\, c 29, «. 48; 11-12 T., c. 42, s, 27, Imp.
See sec. 74, ante.
VERDICT oP ATTEMPT, ETC.
183. If, on the trial of any person clmrged with any felony or
misdemeanor, it appears to the jury, upon the evidence, tiiat the
defendant did not complete the offence charged, but that he was
guilty only of an attempt to commit the same, such person 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 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 tlie same mi-.iiiier as if he iiad been convicted upon an indictment
for attempcing to commit the particular felony or misdemeanor
charged in the indictment; and no person tried as lastly mentioned
shall be liable to be afterwards prosecuted for committing or attempt-
ing to commit the felony or misdemeanor for which he was so tried.
—32-33 v., c. 29, s. 49.
This clause is taken from sec. 9 of 14-15 V., c. 100,
of the English statutes, upon which Oreaves has the
following remarks :
"As the law existed before the passing of this act
(except in the case of the trial for murder of a child, and
the offences falling within the 1 V., c 85, s. 11,) (sec. 191
post), there was no power upon the trial of an indictment
for any felony to find a verdict against a prisoner for
anything less than a felony, or upon the trial of an indict-
ment for a misdemeanor to find a verdict for an attempt to
commit such misdemeanor. — (See R. v. Catherall, 13 Cox,
109; R. V. Woodhall, 12 Cox, 240; R. v. Bird, 2 Den.
94; 1 Chit. 251, 639). At the same time the general
principle of the common law was, that upon a charge of
PROCEDURE ACT.
« J ooo
jury couia :T:j^^t7T:T'""""" '-- ''"""^' "«'
adviintams ; for if hn »,. ; i- T „ •* *"■ »' "»'ny
prisoner is ,.„w entitled, i^ o.,e, of m' f ' ^^^ '^''"'
10 a copy of the deposit o„s and 1 T' '° «»""-'.«■«'
coi^y of the indictment ve; " ' f ""' '""""' '^ »
cou,>,e. is .hvays por^itt'ed rinir:" tT''"^ ,'"'
" »l«oial jury, i„ the great Jaritvf . * ''"''""■' '"
would notdosire it and i/ """'""'y °f <'»''es a prisoner
ti.eindictnK.:th:;t :rrr''^".'''"'■'!^''"■-
f "« ^■■° '. t-e-fore, renrrj^,;: ^ir; J"^
ben,g empowo.«d to find a verdict of gni ty "Ian It '"Z
to commit a felony unon »,. ; .■ . ^ ' attempt
and the pri.onerTbvTnsly ":t'?""/°'' ""=" '"'""^■
where he i, charged wltT, f ™""'»'' ''^ *'• "'
i^iiimiui justice being anticinajp.l l>,r fU
tl-tpaiticulari„isdeinernor" ' '"^' '' ^^"^°^^^
In i2. V. McPherson, Dears c^ 5 107 h . •
indicted for broakina L^ ^' ^^'^ P^^onerwas
stealin. therein cerl ^'""^ ' ^-^Hing. house, and
o therein certain goods specified in the indictment,
1/ "
Jiif
856
PROCEDURE ACT.
lit
the property of tho prosecutor. At the time of the break-
ing and entering the goods specified wore not in the
house, but there were other goods there the properly of the
prosecutor. The jury acquitted the prisoner of the felony
charged, but found him guilty of breaking and entering tho
dwelling-house of the prosecutor, and atterajMng to steal
his goods therein : Held, by the court of criminal appeal,
that tho conviction was wrong, as there was no attempt to
commit the ''felony charged " within the moaning of the
aforesaid section.
Cockburn, C. J., said ; " The effect of tho statute is, that
if you charge a man with stealing certain specified goods,
he may be convicted of an attempt to commit ' the felony
or misdemeanor charged,' but can you convict him of steal-
ing other goods than those specified ? If you indict a man
for stealing your watch, you cannot convict him of attemp-
ting to steal your umbrella. I am of opinion that this
conviction cannot be sustained. The prisoner was indicted
for breaking and entering the dwelling-house of the prose-
cutor, and stealing therein certain specified chattels. The
jury found specially that, although ho broke and entered
the house with the intention of stealing the goods of the
prosecutor, before he did so, somebody else had taken away
the chattels specified in the indictment ; now, by the recent
statute it is provided, that where the proof falls short of
the principal offence charged, the party may be convicted
of an attempt to commit the same. The word attempt
clearly conveys with it the idea, that if the attempt had
succeeded, the offence charged would have been committed,
and therefore the prisoner might have been convicted if the
things mentioned in the indictment or any of them had
been there ; but attempting to commit a felony is clearly
distinguishable from intending to commit it. An attempt
1 1
I'HOCEDURE ACT. g.,-
rriaoner with atealing 1,J i"'° '""f "'""' "'"'Ws the
by somebody else. Th Iv f "^ "'"°'"'' "'»'""
tbe goods specified in the'i„dLtl„; /™"*^' """ »»'
could have been committed Ti "'""^ "™lf
for attempting to commit a 'f„I "° P"™<"- «» imiicted
A'» pocket, with in™„t to 7t,^""""^'"'''™'^">'<'
pocket then being. The evi leo ' ^'T'^ '" "■" ""0
put bis hand int! a ZZ^^ZT Z 'l *"' ''"" ">
proof that there was an«l,i„ ., ' """■" ''"^ no
ontheassumptionthatT "dr-"!^ ^*'' "■"'
prisoner could not be convicted of ^ ',?'"''"*'' "■«
■R. V. Collins, L JiC 471 r , "'■"'™P' ''''"'•sod;
assault with intent to iommi't 1 f T ""' ^"'"^ "' "''
do'bur:tZa:::[r^prdt:r^^"""-^-
the grounds that the indfctment TT ""■' "«'""P°»
goods to be in the house wh^f '" *?. '"™'^' ""^K"" te
'att..r to be in th ^klt th b ^'''"'^''' ""^ ■" «■«
Cons. Acts, cm. " """'■ ^"^ <«• ««»Wm'
But the case of A v. Goodhall, 1 Den im »i, ■.
hold that on an indictment for u inVl" V^"'" " ^"^
■ntont to procure the misearrial „f ! "■^"••""^'" ^'A
'^
B ^"i '« '■'
858
PROCEDURE ACT.
P '
Idem, cxi. And if a person administers any quantity of
poison, however small, however impossible that it could
have caused death, yet if it were done with the intent to
murder, the offence of administering poison with inteut to
murder is complete: R. v. Cluderay 1 Den. 514; 1
Muss. 901, note hy Greaves. And this rests on a dis-
tinction between an intent smd an attempt to commit a
crime ; it seems that a man may be convicted of doing an
act with intent to commit a crime, although it be impos-
sible to commit such crime, but that a man cannot be
convicted of an attempt to commit a crime unless the
attempt might have succeeded.— (Greaves, "Attempts,"
Cox & Saunders' Cons. Acts, cxii.
-Tt was held in M. v. Johnson, L. & C. 489, that an
indictment for an attempt to commit larceny, which charges
the prisoner with attem])f ing to steal the goods and chattels
of A., without further specifying the goods intended to be
stolen is sufficiently certain. And in R. v. Collins, L. &
C. 471, above referred to, the indictment charged the defen-
dant with attempting to steal " the property of the said
woman in the said gown pocket then being," without further
specifying the goods attempted to be stolen.
In R. V. Gheeseman, L. <& C. 140, Blackburn, J., said :
" If the actual transaction has commenced, which would
have ended in the crime if not interrupted, there is clearly
an attempt to commit the crime."
In R. v. Roebuck, Dears, & B. 24, the prisoner was
indicted for obtaining money by false pretences. It
appeared that the prisoner offered a chain in pledge to a
jmwnbroker, falsely and fraudulently stating that it was
a silver chain, whereas in fact it was not silver, but was
made of a composition worth about a farthing an ounce.
The pawnbroker tested the chain, and finding that it with-
rnOCEDURE ACT. osn
, o59
pmoner'. statTe'nt Lt th'"'""""'^ -liance upon the
found the prisoner g:l'of t o Ttr " f °''°" ' ""^ ^"'^
misdemeanor charged agli t hL'"^rf.^ ITT" *^
vjction was right. ' ^*^ ^^^^ con-
It is said in 2 Ilv'<;> p;qo \li •
Vict the defendanfo Ve aVltt """ •^"" '° ™-
charged .• ■• There are Jm! ff **"""" *" "ff™™
ed to be oommLd Ztt t """"''■°' "^^ "^ ^''^P'"
be so attempted It' "„.! Z""' "*"' "'"* «'""»'
sisto in an act that i^ done T' "^'^^ '" °*'«=^ »»"
that act which ;, be rLttr.T '^ "" ""^"P' "> "»
But where an offence consirfn' """" *^' *"™-
or in such a state o h "ras IT °T'"l '" "" ' *'-="■
being done, it should el^irir' ""'°'" ™^*'"g
to commit such offelr Jh ' if ^ ol *" "° ^'"="""
omitting or neglecting to , \l ^"^ '^"''* '■>
may well bedotbtdt "r! ^^ "^^-'^X. '»
commit that offence And '' ''" "" ='"''»'?"<>
r-p;-f;-ra„fni-LZ7r;;^,,"t
ti :;:deit'.ir ;::x ttr-^ ^'"- *'^'
into the prisoner's possLbn tho T """""'^ ™^»'
juto his possessi„r::~:"^xr'7rTr''^"
knowledge of their bpina rr. i I ' ^''^' '*^' ^^^
onler to%o„sttte ho " „: ' o7'f '^ ^™'^'' ^ f"-
auytWng, it is not n cessarv to °° '°'"''''™ "^
and, therefore, it wouM be „„ T'' ""^ ""' ''™^'
could not be an attrZtt '^ ^ """^'"^ ^^^ "'ere
T, ;= . r ^ *"•""?' '0 commit such an offence »
It « to be observed, however, that the 50-ai V c 45
.6, of our statutes corresponding to the 9-10 W III c 4^
»• 2, (Imp.), has the words "receives, possesses' ";:do'
m
If:^
860
PROCEDURE ACT.
a count charging the receiving of stores, there seems no
reason to doubt that there might be a conviction of an
attempt to receive ; for receiving clearly includes an act
done. Thus in R. v. Wiley, 2 Den. 37, where a pris-
oner went into a coach office and endeavoured to get
possession of stolen fowls which had come by a coach,
there seems no reason why she might not have been
convicted of an attempt to receive the fowls.
Can there be an attempt to commit an assault ? Greaves
says : " In principle there seems no satisfiictory ground
for doubting that there may be such an attempt. Althoiigli
an assault may be an attempt to inflict a battery on
another, as where A. strikes at B. but misses him, yet it
may not amount to such an attempt, as where A. holds np
his hand in a threatening attitude at B., within reach of
him, or points a gun at him without more. Is not the
true view this— that every offence must have its begin-
ning and completion, and is not whatever is done which
falls short of the completion an attempt, provided it be
sufficiently proximate to the intended offence ? Pointing a
loaded gun is an assault. Is not raising the gun in order
to point it an attempt to assault ?
In R. V. Ryland, ll Cox, 101, it was held that under
an indictment for unlawfully assaulting and having carnal
knowledge of a girl between ten and twelve year^of age,
the prisoner may be convicted of the attempt to conunit
that offence, though the child was not unwilling that the
attempt should be made.
In R. V. Hapgood, 11 Cox, 471, H. was indicted for
rape, and W. for aiding and abetting. Both were acquit-
ed of felony, but H. was found guilty of attempting to
commit the rape, and W. of aiding H. in the attempt,
The conviction was affirmed both as to W. and H. See
B. V. Bain, L. <& C. 129, and note a thereto.
PBOCEDUKE ACT.
It was held in H V n^ u ^^^
only convict of an attempt li!, ^'^^'' "'"'■»<' can
-' of an attempt wmT ^'^Z ^7'^~. and
Thua, on au indictment for mnrtoti °"^ ^^ ^'^'"'e-
oner cannot be convicted rf fe "'* P°'«». the pris-
poison to the deceased with ilnVr'™ / '"'°>"'«tering
's doubtful if, in Canada, this „tl° ""'*''"'"• ""'' i"
v.ew of the enactment contained ^^ *".''" ^ ^"""^^'^ «
^ The attempt to comm~l T™ '''' ^''»'-
at common law, a misdemeanor »„' ,""*'»'*a"or is.
imprisonment, or both. See Tof: P"""'"''''« h^ flue or
/■■' -any oases of ale^ to 'c" '''•
offences must fall ,mder s 34 I ,." '=°'"""' ''"'lictaWe
provides for the punishment' of the'e"' ''^' "»«"■ *hicl>
meanor of any one who a.,- i,„ ™'°™™ 'aw misde-
conunit any indictable oiTeuVe ""^ '""■'"" *'"" ''"'='" to
An assault with intent to c'
to commit that crime • though " ""'"" '' "n attempt
^««W, 4 #. .* /; 99: * '"' '■'J'°*'-« «ote in M. V.
An attempt to commit a crime f. •
S..CI1 crime by some overt act and •''° ""™' '° '=°"'»>it
necessarily includes an assault t 7 ""*' <"■ ""J"^. etc.,
Upon an indictment f" 2 "oTS''''"': ^^ ^- "rt, 49
carnal knowledge of a girl te " e" T'' ""=" "'l ''""■'g
"f "ge, the prisoner mav he . '" ""'' twelve year,
li- V, i)«„ye2,, 4 /-. .i J?, 99 ' ^- '^^ '^''"■««. 12 fc, 498 ;
Tlie prisoner wrote a lette'i- 1„ . u
''"« '0 commit an nnnatnra off ^^ l''""*^"' *"«''«.
an attempt to incite to comm t a ™" '^ "'''' """ "'« «!
An attempt to commit a" 1^°°' ''°''' ""'^''^^anor.
--.*it or do anTlTr i-ntti:-
862
PROCEDURE ACT.
another person to commit a felony is a misdemeanor. — R.
V. Hansford, 13 Cox, 9. See M. v. Gregory, 10 Cox, 459,
and 1 Burn, 342.
184. If, upon the trial of any person for any misdenieanor, it
appears that the facts given in evidence, while they include such
misdeme'inor, amount in law to a felony, such person sliall not, by
rea-on iliereof, 1)6 entitled to be acquitted of such misdemeanor, unless
the court before which such trial is had thinks fit, in its discretion,
to diioharge tbe jury from giving any verdict upon such trial, and to
direct sucli person to be indicted for felony, — in which case such
person may be dealt with in all respects as if he had not been put
upon his trial for such misdeini^auor ; and the person tried for such
misdemeanor, ij" convicted, aliall not be liable t > be afterwards prose-
cuted for felony on the same facts. — 32-33 V., c. 29, s. 60.
The above clause is taken from the 14-15 V., c. 100,
8. 12 of the Imperial Acts. The words in italics are not in
the English Act, but the clause has always been inter-
preted, in England, as if these words were actually in it.
Greaves says on this clause : " This section was intro-
duced to put an end to all questions as to whether ou an
indictment for a misdemeanor, in case upon the evidence it
appeared that a felony had been committed, the defendant
was entitled to be acquitted, on the ground that the misde-
meanor merged in the felony. — R. v. Neale, IC. & K. 591;
1 Den. 36 ; R. v. Button, liQ. B. 929. The discretionary
power to discharge the jury is given in order to pi event
indictments being coUusively or improperly preferred for
misdeiuiianors where they ouglii to be preferred for
felonies, and also to meet those cases where the felony is
liable to so much more severe a punishment than the
misdemeanor, that it is fitting that the prisoner should be
tried and punished for the felony. For instance, if on an
indictment for attempting to commit a rape, it clearly
appeared that the crime of rape was committed, it would
be right to discharge the jury."
Formerly, where upon a indictment for an assault with
I I
PBOCEDURE ACT.
intent to commit a rape i ,., " ^'^^
acquittal would have La iZlTlT'''' ^"''^'' »
m.«demea„or wa, merged Ht 'f ^^'""""^ """ «"'
^telO beta thi; ent^L't tt 'wr^' '^ ''"''^'=^' ■' "»
d-ted fo.. carnally knowing ali*':' '""""' ^'"^ '■>-
5--- of age, and it was "p,;: d h IT 1™/"" '"'^'^
-«pe upon he, he was not'hereby et utd t h """"'"^'*
The above section removes all ,)„;.? ''" "cq^i^d.
»'"»tnot he lostsightof lt7'".°"*^»''«c--.butit
fects proved, though „mon„ti° >"' ''^"''^ '™"» "«
'f upon an indictment for havin '^ ^^ "'»"">ce,
I g;.I above the ago of t.n C/J:' /""r'^''^- of
twelve years, it appears that i^f ct^h f ""■ "" "S" "^
aSC of ten years, this section It " ! "f ""-^ "»''-' ">«
oner must be acquitted; the offel . "'' ^' ""'' ""^ '""-
!->otp-ved; quite an;the aldTotlr*;" "°"'"^' "'»
>3 P'wed, and this offence as nr ^ . ^ ''"^'''"" ""^"co
■ni^clemeanor charged !!1 , ".^7,'' f ^' »»' "'elude the
™l".g to this effect i;En;ia„d rf ' u' *'" ""■ ">'' '^ -
"-lule they include sucE mLe '»°'' ^'''^ ">^ "-*
corresponding clause. ""^^cmeanor " are not in the
^'Jt the clause fullv o r
for false pretences, the 2"!""'?' ''''°'' ^» ""«»'■»«»*
have been affected by tS^:'"*^ ^ '""" "■"-™-
forgery be proved the r.r\f ' "^ " "^ase, though a
•^ "/stem ot jurisprudence,
I ,! I
V
864
PHOCEDURE ACT,
that " no man is to be brought into jeopardy of his life
more than once for the same offence : '' 4 Blackstone, 335 ;
or as expressed by Lord Campbell, in R. v. Bh'd, 2 Den.
216, in other terms : "No one ought to be twice tried for
the same cause," a rule, in the civil law, contained in
the words, " nemo his vexari debet pro eadem causd."
It was laid down by Mr. Justice BuUer, in R. v. Van-
dercomb, 2 Leach, 708, and has never been since doubted,
that the true criterion to ascertain whether an indictment
" puts any one twice in jeopardy for the same offence," is
whether the facts charged in the second indictment would
have been sufficient to support a conviction upon the first
indictment; and by the words a conviction upon the first
indictment^ is not meant only a conviction of the crime
expressly charged in the first indictment but any convic-
tion allowed by law upon the first indictment.
The above clause is not in the Imperial Acts. The last
part of sec. 183, ante, seems to cover it, and if R. v.
Connell, 6 Cox, 178, ubi supra, under sec, 184, is to be
followed, this clause 185 should be repealed.
186. If the facts or matters alleged in an indictment for any felony
under tiie " Act respecting Treason and other Offences against the
Queen's authority," amount in law to treason, such indictment shall
not, by reason thereof, be deemed void, erroneous or defective; and
if the facts or matters proved on the trial of any person indicted for
felony under the said Act amount, in law to treason, such person Khali
not, by reason thereof, be entitled to be acquitted of ijuch felony; but
no person tried for such felony shall be liable to be afterwards prose-
cuted for treason upon the fcame facts. — 31 V., c. 69, s. 8. 11-12 7.,
c. 12, s. T,Imp.
See c. 146, p. 30, ante.
187. The jurj' empanelled to try any person for treason or felony
shall not be charged to inquire concerning his lands, tenements or
goods, nor whether he .^ed for such treason or felony. — 32-33 V., c.
29, s. 53.
l!' i '
PBOOEDUEE ACT
n,. . , '• 865
This 18 the 7-3 Geo. IV c 28 . s , .,
Statutes. ' °- ^^- «• 5 of the Imperial
By the old English law. flight by anv
crime was an offence and m tf ^ "^ *'=™'^<' °f »
found that the p.W .VrflV"/'''""^''^"'^^-^
earned the forfeit'^re of his 1., 7 f ' ""'^ «""■"«
found guilty or acoaild „/?u "'"' "'"'"'''». ^-l^other
before being'speci: /^Il^f f "'T ='-=-<>. Ung
tion "did he fly for it '■Tdt^ Po-'l-ament, the ques-
■»nseque„ce,as the iuLllav.!™""; " ""^ ^»™ "' ™
i£ta.V«to«; 387; 1 «. "Tl. ™ ^^ "" 'he flight. _
.» case it ,0 appear, i„ evidence ST"", '.'.""""''W "'V find,
born, and II,., ,ach person didLf °'"''' '"«' ''■"n"/ be,,^
c "IJ or of „,e dead body of s„ h cWd T ,'"""' '"■'"'"'"» »' »"eh
•l'"eof, and therenpon the court m^v'^'^r "" °°"°'"' ""> ^'"1'
psr.on had 6een convictei Zn an L*^^' ""''' "="'="«« as if .„ch
ofb„.h.-32.33 r...,2o„.eT.;:;"'Srr M^r Tr?'-™*
See p. 221, a«., ,„,,,,, ,„^^^j^;-'»»—M».,.
ba'bi^rdeTo^rntTtretrSd"^^^
that others did lo and 'Ir tW "^^ -ffl™"' evidence
suol, oircumstances all mtV .' T '^°'"'"»«"'«. «nder
P-e„t elause i ^f^LTa toTn:, 7 "^'""^''- ^l^"
™es any such endeavT ! ^ .';. '""'"'^e every person who
i' wheth'^^r there be anvevH " '^ """^ ™"""^™' -"ler
Under the forlr ena't !'^""''"'' '"°*^'- »"»'•
-ther ia eo„ ^ n/ feh ' ^T"" "''^'"=" *<>
indictable as au aide °„r abettor buT ' "'^ ^'^^■'
«uld come within the tem of tht 1'""" " "^'^""^
The terms of tb. <■ °'"'^ "' " P"ncipal.
"f ae former enactments were ■• by secret
FFF
■■!" i ■ !
J; n
866
PROCEDURE ACT.
L' 1 1.-
burying or otherwise disposing of the dead body," and on
these terms many questions had arisen. See R- v. Snell,
2 M. dtRoh. 44 ; M. v. Watkins, 1 Rus8. 777 ; R. v. Ash,
2 31. & Rob. 294 ; R. v. Bell, ib. ; R. v. Halton. ib. ; R.
V. /or?es, lb. ; R. v. Goldthorpe, 2 J»ioo. C. C. 240 ; R.
V. Perry, Dears. 471. Under this clause "any secret
disposition " is sufficient.
Under the former enactments the mother alone could be
convicted of this offence where she was tried for the murder
of her child. Under this clause any person tried for the
murder of a child may be convicted of this offence, whether
the mother be convicted or not. — Greaves' note to this
section and to s. 49 of c. 162, p. 221, ante.
189. If, upon the trial of any indictment for any felony, except in
cnst'S of murder or manslaughter, the indictment alleges that the
accused did wound or inflict grievous bodily harm on any ptrson with
intent to maim, disfigure or disable any person, or to do some otiicr
grievous bodily harm to any person, or with the intent to resist or pre-
vent the lawful apprehension or detainer of any person, and thc.jury
is satisfied that the accused is guilty of the wounding, or inflicting
grievous bodily harm, charged in the indictment, but is not satisfied
that the accused is guilty of the felony charged in such indictment, the
jiuy may acquit of the felony, and find the accused guilty of unlawfully
and maliciously wounding, or injiiciing grievous bodily harm; and
euch accused shall be liable ' ) three years' imprisonment.— 32-33 F.
c. 20, s. U,part. 14-15 F., c. 19, s. 5, Imp.
. The words in italics are not in the Imperial Act.
In R. V. Ward, 12 Cox, 123, the indictment charged
a fei .nious wounding with intent to do grievous bodily
harm. The jury returned a verdict of unlawful wounding,
under 14-15 V., c. 19, s. 5 (s. 189, 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.
PKOCEDUBE ACT.
new offonoe, that of ^„Wf, 1 * /'=''<"^"'g '« hira, a
that clause, Ld the w d ma L""""'' "=' «' --ted Ly
o.nitted from it. i„ .^e^^ \'"^ '"'^" P"«
g-ine, p. 2C9. an anlnyLZZZ'^L''^ 'he sa.ne ma-
in Wanfs Caee from anot" poTnt '"""'^*» ''°*™
was certainly proved not t„ i, . ""• ^''« shooting
three, found that there C Irotff T'^V''^^' ''=™''^t
support the conviction On IT '™ ="ffl<=ient to
of the case, this anouymons wr L"''''''"'*""" "' ">e facts
"ttho same time admTttintl '^"''"'^J'"'8"'™t.
court held the m«&Zll*,r™°'""'' ^° ''" "» th^
under this clause, though tl» > "^ asthe«„fa»/„;;
dropped in the stltut^ ''i,' " ^'^ ^'^^'-k had heea
i3 - very well settled in ^nroT ''' '" ""^^"^
This enactment applies to « . j k
«-'- 3. 34 of thetreeny aV 'Tar'*/"""''"'""
iltUer, U Cox, 336. has n, „r F- ' '"^«— S. v.
The defendant may also be IT"':' °^""'^-
«ault or of attemptlg to commi tf 'I-^ "' ' """""^
See re„,arks under a. 14, c mTt """T "'"'S''^-
On motion to discljae' » ^' ' ""''•
Police Magistrate. o;tZl~C;tr "^^"^^ *
:srd"o=^fi;-T^^^^^
t« -io her grevi„„r b^ii;; t™ ' ""' """" "^» -<» *ere
^«</, that the addition of the words "w.-tl • .
gfevious bodily harm " did „„f -J . '' '"t^nt to do
that the prisoner St be lain ' "^ ■""""«<"•■ »"
tory mj-sdemoanor of^naltilZtld" " ''' ''«'-
Held, also, that imprisonment at ha^- labor for a year
11
;i ' 1
868
phocedure act.
was properly awarded under 38 V., c. 47.-^6 Queen v
Boucher, 8 i>. It. (Ont.) 20. Affi^rmed on appeal, 4 Ont
App. B. 191.
190. If, upon the trial of any person for unlawfully and n ali-
cously ad,n,„,8tering to or causing to be aJniinistcred to or taken bv
any other person, any poison or other destructive or noxious thing, so
as thereby to endang.-r the life of such person, or so as thereby to inflict
upon such ,)erfion any grievous U-lily harm, the jury is not satisfied
thasu.n.ro,,.. .8 guilty of such felony, but is satisfied that he is
guilty of tlie misdemeanor ot unlawfully and maliciously administer
ing to, or cau.mg to be administered to or taken by such person, anv
poison or other destructive or noxious thing, with intent to injure
aggneve or annoy such person, the jury may acquit the accused of
fluch fe ony. 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.-32-33 V., c. 20, s. 24. 24-25 V., c
lUU, ss. Z6, 24, 25, imp.
See p. 167, ante, remarks under sees. 17, 18, c. 1G2.
191. If, upon the trial df any person for anj felony whatsoever, the
crime charged includes an assault against the person, althouH a,
assault IS not charged in terms, li.e jury may acquit of the felony", and
find a verdict ot guilty of assault against the person indicted, if the
evidence warrants such finding, and the person so convicted shall be
liable to five years' imprisonment.— 32-33 F., c. 21), s. 51.
See sec. 248, post.
From 1837 to 1851, the statute book in England con-
tained an enactment similar to this ono, the 7 Will IV
and 1 v., c. 85, s. 11 ; but it was found there, that such
great difficulties had arisen in its construction, that it was
repealed by the 14-15 V., c. 100, s. 10.
On this repealing clause, Greaves says :—
"This section repeals the 11th sec. of the 1 V c 85
which Lad not only led to difficulties it. determinina to
what cases it applied, })ut had been applied to cases to which
It 18 extremely questionable whether it was ever intended
to apply. The power to convict of an attempt to commit
rilOOEDDBE ACT.
« felony givoa by tho laat aectioa fse<= IS, r ^^^
dure Act), and tho now.r .„ • * ^^ "^ »'"■ Prooe.
.tabbing, or ^undrjiv'rrr' "f "■''-f-'lly euttinl
(section 189, a^fe),!;/''!". f ^ ""^^ ^' ■ "• ^S. s. !
beneacia, than J^ZlZt^n'- '^''''''''' '» P™-
in the case ,.fij, y /y/r// on. A.
E.vchequcr were divided eight to .; / ""> ™"'' of
ti» of Englan,,, Lonl clpbd, '.""' "'^ ^'"'""»-
miuority, closed hia rcmur „„ I ^° ™' ""« "^ «>»
"ope I may, wi,.,,„.,t i ™* "^ '^« ""- by saying . „ x
legislature will speedily rental ^ ''?'" ""'' """ "-^
which has caused .uch confuToi o? " ""' ""'°"°"'
to abandon the construction of it f„, TT ^ "" "'''"''.^
contending, and most ~MW !V'^^ ^ ^^'^ been
governed by the „p;„i„„ ^ZT "",^ ■""""'''ively to be
from me ; but I have not b" „ aw"1 ""'"" '''"'''^^^
auy clear and certain rule for ,„„ r . ^''"'"' '">"' '"o™
am afraid that without the i„fJ7 ' «"idance, and I
withstanding onr best eVi t^to bf™" °' '''"■"""-'■ "»*-
as well as others, 4:XZ7Z''''r''''''''''^^^-
the result of our deliberations." "'*™" '» ""'icipate
Augull ZZXllv'^n^'l '"''• '"'' "' ">o 7th
able clause. I„ OnS hth T.t" '"^ ""i-'^n-
cl«.sc a verdict of assault nn^n '". " """ "'"'cr this
-nslanghter is not Te„l, ^^ « "" '"••«='■"-' '"r murder or
■" «. V. C.„. 1872. a verdict ofastiTn'' '" '^'""*'='
slaughter has been eiven »„,i '" acase of man-
Duval. ^ '"• """^ '•'^<»»'od by Chief Justice
The following are the most important d„ • • ■
on the n.terpretation of this duLe '"""'"' ^"8"='°''
!l
"
870
PROCEDURE ACT.
In a joint indictment for fulony, one may bo found guilty
of the felony, and the other of assault under this clause. —
E. V. Archer, 2 Moo. C. C. 283. In an indictment for
felony, a conviction cannot bo given under this clause of an
assault completely independent and distinct, but only of
such an assault as was conn(M'tud with the felony charged.
— li. V. Outteridge, 9 C. & P. 471 ; and this interpreta-
tion was admitted as undoubtedly riglit in li, v. Phelps,
2 Moo. C. 0. 240 (sec post), and by the fourteen judges
in E. V. Bird. The case of E. v. Pool, 9 C. d- P.
728, where Baron Gurney held that if v„ felony was
charged and a misdemeanor of an assault proved, the
defendant might be convicted of the assault, althougji that
assault should not bo connected with the felony, stands,
therefore, overruled. In E. v. Boden, 1 C. tt" K. 395, it
was held that on an indictment for assaulting with intent
to rob, if that intent is negatived by the jury, the prisoner
may be convicted of assault under this enactment. In R,
V. Birch, 1 Den. 185, upon a case reserved, it was held
that upon an indictment for robbery, the defendant, under
this clause, may be found guilty of a common assault.
The judges thought, upon consulting all the authorities,
that this enactment was not to be confined to cases where
the prisoner committed an assault in the prosecution of au
attempt to commit a felony, nor was it to be extended to
all cases in which the indictment for a felony on the face of
it charged an assault. See also E. v. Ellis, 8 C. d- P. 054.
But they were of opinion that, in order to convict of an
assault under this section, the assault must be included in
the charge on the face of the indictment, and also be part
of the very act or transaction which the crown prosecutes
as a felony by the indictment. And it was suggested that
it would be prudent that all indictments for felony includ-
rnOCEDURE ACT, o^.
o71
I'lg an assault, sliuuld state the assault ;„ ,i ■ ,-
Our cla„«,, however, h,« the woT a.tl "'V'"''^'""""-
be not charged in term, " li "'"'ouKh an assault
^^^ ica term, „h,ol, were not in the iiughsh
mat" J ■';i,!tT""^'.^ ^- '^' ^- ^^''' " ""» '«W l.y VVi„ht
g..i.ty of (he a:::r::^;''xz :,"''' '■"''"/"''"•'
api«arod that such assault ;„s„o', 2 l,' ""'"'' ''
of son,etl,h,g which, when c u^d : Id'. ''7""'
intent to commit, a felony ''°' ""^ "'*
the':el^t otatllf ri' ™ ."^ «- Judges that
«" assault as a misdeu.c-anor and' for tfT ■""' "" '"'
aud this has never since been douhtla"""'™""'"--"'.
In i2. V. St. George, 9 C *& P aqi ^.^
charged with attempting to 'lire a uistnl ,r"°""'' "■"'
The qnestion was whether then, ^ "' ""™'' «'«•
Of «.. assault comn-rw": rZCL^T*''
i..v.v^d in »d connect 4r«::;:r;ii;:"
in a scuffle, strue. the"r IL ^:Z:X:'1':i
liim down : that aftPr thi^ pi i ''WiceanU knocked
i.ome and Lk , trt e r'pa 'tf; ZT' '" '"' ""'
" ...arter of an hour aft^l!: . 1 dtct^d ' ^f "'"'"
spot, was again assaulted by ^ther paZ » " *""'
then an injury of which he died o Cs 'ot ' jr:,'"'
facts the jury acquitted Phelns of fh7f7 . '''
l™ guilty of the'assault. ut thl „dir' "'"' '°""'
-sly of opinion that the conlllllllCarrt
^ji^piA
872
PROCEDURE ACT.
verdict of assault under the clause mentioned, the assault
must be such as forms one constituent part of the greater
charg- of felony, not a distinct and separate assault as this
was.
In R. V. Crumpton, G. d; M. 597, Patteson, J., held
that, in manslaughter, a jury should not convict a prisoner
of an assault unless it conduced to the death of the decea-
sed, even though the death itself was not manslaughter.
See also R. v. Connor, 2 C. & K. 518.
In the case of R. v. Bird, 2 Den. 94, already cited, as
the final blow to the enactment in question, in England,
the court, on the following division, decided that on an
indictment for inurder or manslaughter, the prisoner, under
the said clause, cannot be convicted of an assault :
For the conviction.
Lord Campbell, C. J.
Jervis, 0. J.
Parke, B.
Alderson, B.
Maule, J.
Martin, B.
Against the conviction.
Pollock, C. B.
Patteson, J.
Coleridge, J.
Wightman, J.
Cresswell, J.
Erie, J.
V. Williams, J.
Talfourd, J.
In the case oi R. v. Ganes, 22 U. G. C. P. 185, already
cited, the court followed the rule laid down by the majority
in R. V. Bird, and decided that, under the said section
(191) of our Procedure Act, a verdict of assault cannot be
given upon an indictment for murder or manslaughter.
It may be remarked that, in this case, Chief Justice
Hagarty distinctly said that his own individual opinion
was wholly with that of the minority in R. v. Bird, viz.
that, in such cases, a verdict of assault is legal. See also
R, V. Smith, 34 IJ. G. Q. B. 552.
PROCEDURE ACT.
I I
873
Iw . ^^'°''' "'"' "P°° indictments charging
eithe murder or manslaughter, verdicts of "guilty of
In r T^r" fr- ^■"' "'=^''»^- ™«»esti'oned'
.^It:^ i";^^ '^'■^ '^"'^'' 1875, for man-
hST' r°' °- ''; "''"Sed the jury that they were at
hbe ty to return a verdict of common assault
Upon an indictment for rape or for an assault with intent
to comm,t rape, under sees. 37, 38, of c. 162, see pTg"
a«fe a boy under the age of fourteen years m„y be eo n'Cicted
of an assault under the said section 191 of the Procedure
Act.— ii. V. Brtmilow, 2 Moo. C, 0. 122
Upon an indictment, under sec. 8, c. 162, p. 147, an^. for •
feloniously assaulting with intent to murder, a ;erd^-c of
comn.on assault may be given under the said secti'on of
the Procedure Act.-i2. v. Cruse, 2 Moo. C. 0. 53 • M y
Archer, 2 Moo. C. 283. If a man has carnal kno'wledg^*
fa woman by a fraud which induces her to suppose itl
her husband, upon an indictment for rape, he must be
acquitted of the felony, but may. under the' said se'tt o
the Procedure Act, be convicted of an assault.-i2. v Saun-
ders, 8 a S P. 265 ; R v. WilUams, 8 C. S P.Ts^
(Ihis is rape now in England by statute of of 1885 ) '
But to authorize such a verdict, the felony charged must
necessarily include an assault on the person, and, for
ins ance, on an indictment for administering poison with
iten to murder, a .erdict of assault cannot be given under
this clause. Nor can it be given on an indi tment forbur-
?W with intent to ravish.-ij. v. Wa^Hns, 2 Moo. 0. C.
t.&K. 176; but such a verdict may be given, if the
indictment charges an assault, and the wilfully adminis-
tering of deleterious drugs._ii!. v. Button, S C. <& P 660
( 11
874
PROCEDURE ACT.
The authorities on the question are sufficiently clear as
to one point, viz., that, under this section of the Procedure
Act, in all cases of felonies, which include an assault
against the person, although an assault be no^ charged in
terms, the jury may acquit of the felony, if such is not
proved, and find a verdict of assault against the defendant,
if the evidence warrants it ; that is to say, if an assault
forming part of the very act or transaction which the
crown prosecutes as a felony by the indictment has been
proved.
It is true that as to indictments for murder or man-
slaughter, R. V. Phelps and R. v. Bird, in England, and
R. V. Oanes, in Ontario, are given by the reporters asrul-
ii^, as an abstract principle, that in no case of murder or
manslaughter a verdict of assault can be given under this
section ; but a careful consideration of these cases will
show that they do not bear such an interpretation.
> In the first of these cases, R, v. Phelps, as already
stated, it was decided that, upon an indictment for murder,
the defendant cannot, under this clause, be convicted of
an assault entirely separate and distinct from the felony
charged ; it was there proved that when the deceased was
killed, when the murder was committed, the defendant
was away from the spot and had been gone for a quarter
of an hour ; the judges decided that, upon this evidence,
the defendant could not be convicted of an assault, thoii<'h
an assault had been proved to have been committed by
him on the deceased a quarter of an hour before the mur-
der took place. And this ruling has never since been
questioned ; it is not because a felony involves an assault
that the defendant can be convicted of any assault what-
ever, committed on the same person ; if in the course of
the evidence, the witnesses happen to disclose crimes
PEOCEDUKE ACT.
875
entirely distinct and disconnected from the offence charged
he jury are not tiiereby authorized to adjud^onlt
be a,^ other -nulhrnr :etc:::ar:ytc:i;r
g the cr>.e charged, and for„,i„g an inJJ';Z7il
M in £ V. Bmrntlmo; R. y, Cvme; R. v. Birch etc
ante So n,„ch for A. v. Phelps, which is olXt from
Then comes U. v ^^'^w t*- ;„
■'''• ^- ^^»a. It IS an error to n'fp tliia
ziT tT ';' r''"= '''» *- *^ 0- of v^^
^ *«(i)s. It IS based on the followino facta ■ T1,p ™i
were indicted for the murder of MarJ 1„^'^C H.:
M ™! «°'i,''»''"»« >•"• It was proved on the tluha^
Mary Ann Parsons' death, on the 4th of January «50
was caused e^lusively by one particular bit "L head
nflicted shortly before her death, but there bein. no erf
clence that tj.e fatal blow had been struck by either of the"
pr,so„ers, t ey were acquitted; duriug the'cour^ o h
tnal, ,t had been proved that tlie prisoners had committed
ifent assaults on the deceased in the two mouth "f
cedmg her death, but that none of these assaults were coT
nected with her dpafVi ti,^ • •. n
that on thol f r ? ""^J^"^^ ^^ *^^ «0"rt held,
that on these facts, a verdict of assault could not be ^iven
against the prisoners. And whv ? P5... .1 ^
commiffPfl L fi t. ^ Because the assaults
committed by them on Mary Ann Parsons durini? the two
months preceding her death were not included n tie
cnme charged in the indictment, but were totall/differen
Th t,;r f"^'""'" ''^ onlyassaulfitided
death, and as they were found not guilty of having
!K
876
PROCEDURE ACT,
given that particular blow, they were entitled to a full
acquittal, and the jury had not the right to say : " It is
true that the assault which caused Mary Ann Parsons'
death has not been proved to have been committed by the
prisoners, but other assaults previously committed by
them on the deceased have been r,roved, and we will take
this occasion to find the defendants guilty of these, though
they were only accused, in this case, of the particular
blow which caused the death."
It is obvious that this would be trying a man for one
offence, and finding him guilty of another. That is what
the court refused to do in that case of R. v. Bird, and a
reference, as infra, to the remarks of the following judges
who form part of the majority will show that they followed
Phelps' case, without going an inch further :
Talfourd, 2 Ben.
Williams, "
Cresswell, "
Wightman, "
Coleridge, "
Patteson, "
3p. 147,
148
" 157,
158
" 164,
165
" 268,
169
" 180,
181
" 183,
187
None of these learned judges said that a verdict for
assault can never be given on an indictment for murder or
manslaughter. Indeed, it will be found that they all
appfcc.r to think such a result possible.
Wightman, J., distinctly says : " If in the present case,
it had appeared that, at the time the mortal injury was
received, the prisoners were with the deceased, and had
assaulted and beaten her immediately before, but that the
evidence raised a doubt whether the mortal injury was
occasioned by blows, or by a fall which might be attributed
to accident, and on that ground the jury had acquitted the
PROCEDURE ACT. q^k
o77
assault proved would have ^e ' il/ve; n'tdT ''^
part of the act or transaction charged as a fri f
indictment, and prosecuted as snch"" '^' '" "'^
And Jervis, C. J. fone of the minority) sav , ... If ;
had been proved that the chiid had „„t ^ 1 ■ ^ ' ^ "
that the prisoner, mi.,ht T u""' " "'^ "''""'M
..pon this^diZ: t ^„:i "T;r^T"r»-""
ft-om natural causes, it is admU ed th»I M * '''"'"^''
have been convicted of assat '""»'' ""r""^ "«'"
murder." "f™ ""^ mdictment for
In the Ontario case of 7? v /^^.a,.
wereahnost similar to fhf o • . ^ TT;:!^ ^^ ^"f
ruling in the case is that where uno„ I v\ ™'^
murder, the prisoners are proved trvelr'^"'""' '"'
Ufre the death of the dlceVl In I r" """'
various assaults, yet the, ca'r e'four::, /onf"
assaults, and must be acquitted, alt.»etirer if t , I
. at these assaults ,ve. not coLnect'ed Ih 1 1 LTof
'i:r ci:h tr;;? '"' '^^ ^~"-
nected. Here," as in ^^ ' d^Xr ^ ""f"
question deeded is that upon an indi- If *^ ™'^
«.ans.aughter, the defendarjunTtt ^ d Zn"::'";'' °''
oirence not included in the crime .IZl't'ln
«sault committed «i another time than tl t
charged, of any other assault than th „, "hich til
secution dmr,,ul as a felony. "'^ P''""
And the judges, who formed the minority in Bir^: .,.
M not intend to overrule ,fl. v. i«./buf ,f 1? '
case distinguishable from the oth^ '^ ' ""^^' °™
But tt is ,«.id, and this reasoning is adopted by Mr.
I ill I
m
!>l
*'
' f ■
878
PROCEDURE ACT.
ate?
ii",'
Justice Gwynne, in R. v. Oanea, that, as in murder or
manslaughter, the only assault charged in the indictment
is the one which conduced to the death of the deceased, if
the prisoner is guilty of an assault, he is guilty of the
felony, and cannot, in respect of that assault, be convicted
of assault merely ; and that if the assault proved does not
conduce to the death, it is distinct from imd independent
thereof, and is, therefore, not included in the crime charged ■
and, therefore, that no verdict of assault can be rendered
upon an indictment for homicide, in respect of such an
assault.
When different assaults are brought out by the prosecu-
tion, in the course of the evidence, as supposed by Erie,
J., in his remarks in Bird's case, and as was the case in
B. V. Melps, R. V. Bird, and R. v. Ganes, this opinion
seems to be unassailable. But when the defendant is
accused of having, on a certain occasion, killed a person,
by, for instance, striking him in the chest, cannot the
jury say : " We. find that, on the occasion specified, the
defendant did strike the deceased, but we do not think it
proved by the prosecution that the deceased died of this
blow." How can it be said that the crime charged is the
assault connected with the death, and that of the assault
connected with the death only the prisoner can be found
guilty, or else be acquitted altogether ? This reasoning
would render the clause wholly inoperative in cases of
homicide. And when the duuse says " for ayii/ felony
whatever;' it expressly includes murder or manslaughter,
Moreover this interpretation would make the clause say
that when a felony is proved, a verdict of assault can be
returned. This would be absurd, and the law does not
say it ; quite the contrary, such a finding is allowed only,
if the evidence warrants it. The clause must be read, in
PKOCEDURE ACT.
879
cases of homicide, as if it said- "On *i, * • i ^
an assanit be not charged m terms (and no assault i, now
m snch cases, charged interns), the jury may acn i n^^'
T..e .ause. Ud, si^riiu^te^x: ,:::!:•:
case, there must be an acquittal for a pLrt i I "
acquit Of the felony," and a Lviction .Cr ^'a^T/
"n^ay find a verdict of assault," showing the opeLtbn it
ltdr„fl"r. *"""? '"^ ^=' ^SargedaX H
'J iniL upon It, It the evidence warranto if
and secondly, of finding the simp n.f f i ^"^^^ "'
the evidence warrants it! ' '' "^ ''^"^"^^' ^^
Any other interpretation gives to the clause an absurd
rr'stTtutf thf ' ''v:^' ^-''''^ ^^-^^
ot a _statute, the one which gives it a reasonable and
prachcable sense is to be preferred to any other which
would make it absurd and inoperative
In a case of M. v. Dingmaii, 22 V. C O B 2R'i ,>
was held that, under s. 66, c 99 of th' n' rfl ']
Statutes of Canach., there c, nW b ^^^^ol^dated
ici, meie could be no conv ction for an
assault unless the indictment charged an assault in te ma
or a felony necessarily implying an assault; butTho
nserfon of the words " altkough an assault benot drZ
•"(.m.,- an sec. 191 of the Procedure Act, renders £
ruling now inapplicable, if it was ever correct
In J^ew Brunswick the repealed statute, 'l Eev, Stat.,
c. IM, s. 20, enacted that: "Whoever, on a trial for
»u„ler or manslaughter, or any other febny which shiu
I f
It
' III]
880
PEOCEDURE ACT.
include an assault, shall be convicted of an assault only,
shall be imprisoned for any term not exceeding three years,
or fined at the discretion of the court."
In R. V. Cregan, 1 Hannay, 36, on an indictment for
murder, the jury found the prisoner guilty of an assault
only, but that such assault did not conduce to the death of
the deceased. The court held this conviction illegal, and
not sustained by the above statute.
In R. V. Cronan, 24 U. G. C. P., 106, the Ontario
Court of Common Pleas held that upon an indictment for
shooting with a felonious intent, the prisoner, if acquitted
of the felony, may be convicted of a common assault, and
that to discharge a pistol loaded with powder and wadding,
at a person, within such a distance that he might have
been hit, is an assault.
In R. V. Ooadby, 2 C. & iT. 782, it appears to have
been held that a verdict of assault cannot be received on
an indictment for feloniously stabbing with intent to do
grievous bodily harm, but this case seems very ques-
tionable, says Oreaves, note d, 2 Russ. 63.
The case of R. v. Dungey, 4 F. &. F. 99, where it was
held that after an acquittal upon an indictment for rape,
the prisoner may be indicted for a common assault, is uot
law in Canada, under sec. 191 of the Procedure Act.
Held, by Weldon, Wetmore and King, J. J., (Allen, C. J.,
and Duff, J., dis.), that on an indictment for murder in the
short form given in schedule A. to c. 29 of 32-33 V., a
prisoner cannot be convicted of an assault under s. 51 of
that chapter.
Held, also, by all the judges, that the fact of the pris-
oner's counsel having, at the trial, consented that he could
be convicted, and requested the judge so to direct the jury,
did not preclude him from afterwards objecting to the
PKOCEDURE ACT. '
validity of the conviction on .1 • "*
MulhoUand, 4 p. ^ b ^Mb'biT'^^'^ ^"^ ''•
Gr^W note to R. y, p^,i^ ■
of the clauae prob Wy 1 /j 'f 7!^ ^"^ f»'»-
apply to those ca'c,whe'r;"„aViti ' "'*"" ^'"'»"'
iocluding an assault, the /uryshouU !' !"' '" " '"'»"y.
that the felony, ^iti,,,^^ ™^ ^'^'t on the ground
But if such were the intentbtrelrdo"' r ''''"■
express it as they ou»ht a, fh I ""* ^" "'owly
convict .of assauftTaCi'^P; """"""^^ ""^ J>"r to
the cri„c charged shall" Z^:^^ ^h"^ ' ''^e.
are so general that they might indur ^''' *'"^»
at the time of the feW charllrf'""^ "''"'"' """^^or
judges have the.«fore bL obWdT ""'' "'"' *^ '™™«'l
»pon them, and the proper iS,*" P"' '""^ ""itation
which has been put uA th m 1/.'°" """"' *" ''' «""
i" M. V. St. Oeo^e. nlelv tL .. ™'^ '^™'''' ^^^o"
a«u.t involved i^ SZtXl,7:^, ""' "^ "»
and ,t is submitted that it must be „ef / "^"''"«'^'';
essenhal to constitute part of the crimr„ T""" "' '>
deluding an assault may be said I '^''- ^ ^"^"•'r
the intent to commit the fel™ 7«'«' "f the assault,
Thus in robbery there i sthettaTlt^th '^"^ """' """"y-
the actual robbery; and in suT LLlT™?-"*' '"^
assault, of -hich the prisoner m ^ submits the
«"ch an assault as conSteT ZI ^ T'"^"'' ""■« >-
of the robbery. Upo„ a , M ^ '""""■''' ^o PWof
a«ult, where' the C n 1 fve'r'""" """^ ^"»*- «»
a felony, is within theleetCrndfi '"'l""™ '" «"■»""•'
not, as such an assault cantt bel^ d to'L ™"1 *'"'' ''
—<• '^ith the ^elony^ohargeriil^^rr j-
882
PROCEDURE ACT.
soever. It is true that an assault is included in the felony
but it is an assault coupled uith an intent, and if the; jury
negative the intent, such an intent in no wii^ teiids to
prove the felony; and it certainly would bo a great
anomaly if the prisoner were indicted for a felony, nd the
jury found he had no intention of commit ng a felony,
that he might be sentenced to three years raprisunraent
and hard labor, while if he had been indicted for the
offence of which he was really guilty, he could only be
sentenced to three years imprisonment without hard labor
E. v. Ellis (8 C. & P, 654), therefore seems do orving of
reconsiderat :on, and the more so as it was decided before
R. V. Guttridrje (9 C. & P. 471), R. . St. George, (9 C.
& P. 483), R. V. Phelpa (Gloucester Sum. Ass. M. 8.
cited 1 Ru^s. 7Sl). The intention, no doubt, was to punish
attempts to commit felonies, including assaults, and it is
to be regretted that the provision, instead of being what it
is, was not that upon any indictment for felony, if the jury
should think that the felony was not completed, they
might find the prisoner guilty of an attempt to commit the
felony charged in the indictm nt."
In that case of R. v. Phillips, four persons were indicted
for a felony. Three were found guilty of the felony, and
one of common assault.
Under s. 36, c. 162, p. 184, ante, common assault is
punishable with one year's imprisonment. Under the above
sec. 191 of the Procedure Act, an assault found upon an
indictment for felony is punishable with five years' impri-
sonment.
192. If, upon the trial of any person upon an indictnu'nt for
robbery, it appears to tlie jury, upon the evidence, tliat the accused
did not commit the crime of robbery, but that he did coniniit an
assault with intent to rob, tl>e accused shall not, by reason thereof, he
entitled to be acquitted, but the jury may find him guilty of an assault
PROCEDURE ACT.
with intent to rob -an,! .J. ' ^^^
''- -"e manner ^s i .« raTP ^' '''*" ^'° '"^^^^ to bo pu„i«,. , •
feloniously assftnln , ^^^" convi.iej „„,„ ° !'<' PUn'shed in
See 8003 lo -lo tr ''■■"'••'" imp.
\- -"^^ "f larceny Act ,, -j,^
a verdict, the punishment iatpl' .i^/""- Under .,„„h
«>e «aid e,au«o. «™ p 'ge'^^r^lf " ""'-'-- ia under
This clause was introdnced i ,
an mdiotment properly framed thj"' "" ''°'"" """ »"
«»>■ ■" with intent to rob^d a ', " "'^' "''""'Sing an
dant mi.-ht have been convic'd of t^''^' "'" "'^ <'-*-
to rob, just in the same way a, , „ "''""" «■'"' ""»'
burglary charging a breaking with T^ V"*"'"'™' ^»'
steahng the defendant raavb^r^ to steal and
"tent to steal. But it^Ts ^0^^^ "' '""'''-« """
this case by express enactmen t !. '° '"''"'''' <"'
doubt on the matter-_fftZ. i," '' '" P^^'^"' ""y
See A V. J/i(cA.77 9 n ? "*"•
"*"' 2 iJen-leS; Dean. 19.
n.gl.Wm,e, or where i, u Ift ,1.1T!"' *" '""' l-"" ■n«l.!„ l,^
•cquitled of tlie burelorv }„.; ^ """^ "^ nielU-tiine .Lull
breaking a„J euterii^"^;";, ""' ° ™"''""' "^ "- off ' •
felony .he,ei„._,2.33V.. 1 1 1 sf :''""'' ""'' "*« >o co,„:,;u .
,' '"=• *^' ^'■'^3' M p. 365, „„fe.
194. It shall not be availahlp K,
charged with the offence of breaking \ '''^ ^' ''^''^"«^' ^o a person
^^-'.. Chapel, ^.etin/horrr/E^^^^^^^^
P'ace of divine worship, or
IMAGE EVALUATION
TEST TARGET (MT-3)
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Photographic
Sciences
Corporation
23 WEST MAIN STREET
WEBSTER, N.Y. 14580
(716) 872-4503
^ #J i
884
PROCEDURE ACT.
r
any building within the curtilage, echool-house, shop, warehouse or
counting-house, with intent to commit any felony therein, to show
that the breaking and entering were such as to amount in law to
burglary : Provided, that the oflfender shall not be afterwards prose-
cuted for burglary upon the same facts ; but it shall be opened to the
court before which the trial for such offence takes place, upon the
application of the person conducting the prosecution, to allow an
acquittal on the ground that the offence, as proved, amounts to bur-
glary; and if an acquittal takes pJace on such ground, and is go
returned by the jury in delivering its verdict, the same shall be
recorded together with the verdict, and such acquittal shall not then
avail as a bar or defence upon an indictment for such burglary
—32-33 r., c. 21, s. 68.
This clause is not in the Imperial Act.
See sec. 42 of Larceny Act, p. 365, ante.
195. If, upon the trial of any personlindicted for embezzlement or
fraudulent applicAtion or disposition of any chattel, money or valuable
security, it is proved that he took the property in qnestipn 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 may acquit the acaused of
embezzlemcut or fraudulent application or disposition, and find him
guilty of simple larceny or larceny as a clerk, servant or person em-
nloyed for tlie 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 theie-
upon the accused 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
that he took the property in question in any such manner as to
ftmount in law to embezzlement or fraudulent application or dispo-
sition as aforesaid, he shall not, by reason thereof, be entitled to be
Acquitted, but the jury may acquit the accused of larceny, and find
Mm guilty of embezzlement or fraudulent application or disposition,
as the case may be, and thereupon the accused shall be liable to be
punished in the same nmnner as if he had been convicted upon an
ind-ctment for such embezzlement, fraudulent application or dispo-
sition ; and no person so tried for embezzlement, fraudulent application
or disposition, or larceny as aforesaid, shall be liable to be afterwards
prosecuted for larceny, fraudulent applicafcion or disposition, or embez-
zlement upon the earn* facts.— 32-aS F., o. 2i, «. 74. 24-23 V., e. 96,
a. 72, Imp.
See remarks under sec. 52 of Larceny Act, p. Z8Z,ante.
Ala
Cox, ]
The
a servi
sectioE
indictn
amoun
betwee
the pre
came i
emhezz
of the J]
his own
money j
was em
deposito
H. V. G
that it si
iadictme
convicte(
c. 29, s. '
any prop
the same
convictio:
a servant
196. I
any other p
able securit
property in
ceny, he sh
such inisdei
be h'able to
-32-33 v.,
See rem
885
PROCEDUllB ACT
Also Stephens' Or. L XXyty j r.
Cox, 17. ' ^^^^^> and R. v. Mudge, 13
section to prevent an Z,Z 7^ ^^ ^"^^ ^y ""'
indictment foTh »e7itlh 7,?' "^^ "«' '""' "^ -»
-unted in VoTorZtZ'ZrtTf'"''
between the two offences is this VX' •'■^"-""on
the property and conve^d itt ^ f*" '^""■" '^««i'«<«
-me to the possession of h ° .Ir" T ^^^ ''
embezzlement Ifth*,.r. ^ ? 7 ' '^® ^^•2^09 19
•.is own use/it is tZJyXTZr''^' '' '^
money and converted it t^ I,;/ shopman received
was embez,kmer but ifl "r™"'^'''**''^' '-'
depository, and atrw "dVabstct::^lT^ ""," ""'^'
that it should never h»v. h j *, ! """«*■.«' singular
indictment L ta' 'hr.^^"""/ ***'•• "P™ '^
convicted of emblSe„? • ''™''"" "'«'" "»' be
c. 29. s, 47 enaTts (frr ' ""'™"°'' "^ ""^ ^"^ O^o. 4,
any properV" ,hall h ' H "^ T'"" «"'"y °' ^"'''^-^li-g
conviction for embe.zlemen~ ! couttlr^"""'' *
a servant-ffrOTj^ Sote. '""^''^ *«
4!S'«jiurbytif^,.'';'::f ■;•!«" ■•■"''f'^' «" °wni„g f„™
property i. q„«ti» i„ .„, ,^o™ m.l.?'°7'' ""' '" '*""'°«' ""
ke lUbl. to be after;" ri°°,„^":°J',t^ f" ^"oh ».Wem„„„r .hall
-^^^3 r.. „. „, . ,,,,riS 1?: 'X' ZV^ -■« ^«'-
See remarks under sec. 77 of Larceny Act, p. 420, „„,..
886
PROCEDURE ACT,
■Mr
197. If, upon the trial of any person for any misdemeunor, under
any of the provisions of sections sixty to seventy-six both inclusive, of
" The Larceny Act," it i'ppears that the offence proved amounts to
larceny, he shall not by reason thereof be entitled to be acquitted of
the misdemeanor.— 32-33 F., c 21, s. 92, part. 20-21 V-, c. 64, s. 14,
Imp. (repealed).
This clause is not in the Imperial Act.
See sect. 184 of this act, ante, which covers this same
enactment.
198. If, upon the trial of any person for larceny, it appears that
the property taken was obtained by such person by fraud, under cir-
cumstances which do not amount to such taking as constitutes larceny,
such person shall not by reason thereof be entitled to be acquitted, but
the jury may acquit the accused of larceny, and find him guilty of
obtaining such property by false pretences, with intont to defraud, if
the evidence proves such to have been the case, and thereupon the
acciised shall be punished in the same manner as if he had been con-
victed upon an indictment for obtaining property by false pretences,
and no person so tried for larceny as aforesaid shall be afterwards
prosecuted for obiaining property by false pretences upon the SLine
facts.— 32-33 F., c. 21, s. 99.
See remarks under sec. 77 of Larceny Act, p. 420,
ante.
Sec. 196, ante, is the converse of this Sec. 198.
This very important clause is not in the English Act.
It was in the 14-15 V., c. 100, as the bill was intro-
duced, but was struck out. In R. v. Adams, 1 Den. 38,
the judges held the conviction wrong, because the indict-
ment 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.
See Shpfiens' Cr. L., XXXIX.
199. If any indictment containing counts for feloniously stealing
any property, and for feloniously receving the same, or any part or
parts thereof, knowing the same to have been stolen, has been prefer-
PROCEDURE ACT.
887
red and found against any person, the prosecutor shall not be put to
his election, but the jury may find a verdict of guilty, either of steal-
ing the property or of receiving the same, orany part or parts thereof,
knowmg the sa.ne to have been stolen ; and if such indictment has
been preferred and found against two or more persons, the jury may
find all or any of the said persons guilty either or stealing the property
or receiving the same, or any part or parts thereof, knowing the same
to have been stolen, or may 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 stolea.-32-33 V., c. 21, s. 101, part 24-26 F., c. 96, s. 92,
Imp.
See sec. 82, et seq. of Larceny Act, p. 443, ante.
The prisoner was convicted of receiving stolen goods on
an indictment containing two counts, one for stealing the
goods and the other for receiving them knowing them to
have been stolen. He had, on a former day in the same
circuit, been indicted for stealing the same goods as those
which he was harged with stealing by the first count of
the present indictment. A jury was impannelled and
the trial of the prisoner begun, but in consequence of it
appearing by the testimony that the prisoner could not
be convicted for larceny, the clerk of the crown, who was
conducting the prosecution by direction of the attorney
general, entered a nolle pros., and then sent another bill
before the grand jury containing a count for receiving,
being the indictment on which the conviction took place,
and on the second trial he consented that the prisoner
should be acquitted of the charge of stealing alleged in the
first count, and he was acquitted accordingly,
Held, on a case reserved.
1. That the clerk of the crown had authority to enter a
nolle proa.
2. That a n^lle proa, being entered prisoner could be
again indicted for the sama offence.
ii
n
'r^l
I i i I
'iSl
t;
« Mi
das
PROCEDURE ACT.
3. Even admitting that the clerk of the crown had no
authority to enter a nolle proa., a conviction upon the count
for receiving would l?e good, each count being a separate
indictment by itself.-^The Queen v. Thornton, 2 P. & B.
200. If. upon th« triel of two or more poreow indicled for jointly
«ceiv.ng any property, it ia proved that one or more of «uch persons
separately received »ny part or part* of Buch pmperty. the fu y ntav
«onv.ct, upon such. indictment, such of the Jd p^ri aaVre pro J
See sec. 82 et seq. of Larceny Act, p. 443, ante,
201. See under eec. 86. of Larceny A«t, p. 462, anU.
202. If. upon the trial of any indictment for Jarceny, it appears
ttmt the property alleged in such indictment to have been etolen I
one fme was taken at different time., the prosec„tor or cout fj
Ihe pro«ecut.on shall not, by reason thereof, be required to eTec Ion
thP L ". TT' ^' '^^' '"^'•^ *^*" «•* '"0»*h8 elapsed between
^e fir«t and the last of such takings, and in either of such last nTe ?
Upned cases the prosecutor or counsel for the prosecution shall i re-
The word "month" in this clause means a calendar
month. Interpretation Act, c. 1, Rev. Stat
The effect of the above .-^d the preceding section is to
restrain the power of the cc .rt with respect to the doctrine
of election. The court cannot now put the prosecutor to
his election where the indictment charges three acts of
Wny withm six months, or where the evidence shows
that the property was not stolen at more than three diffe-
rent times and that no more than six months had elapsed ■
between the first and last of such times. But, on the other
WOCEDORE ACT. ' gg
hand, the court is not bound bv tb« ,i^
the prosecutor to hie ekctton i„!f.t * '""''"' '" ?"«
ite discretion, acooi^inTt! Z J ' '^'' *""' '^ '""^ *«
451. •'^" "^ • ^- ^- -Siytcood, Z. ^. p.
By means of a secret junction Dire »;,i. ,^
d-d not pass through the gas meSrlnllcr' *
smned «thont being paid Z. This ^1^?.. , Tr*
for some years J«W „„ ■ j- "^""""ea to be done
cubic feet^f'^-st'l';^;:' ti'"' "^""-^ "»«
wight be given as therVJ!! ^'. ^ *"""' «"*■>«>
all thetiA and tiati:: r^Tr ""'""' °'''«'"'°8
202, s«^„, «, to theT~l w"^"^^"'-^^""""
aiate takings within 1^?.. .f'"^ ™ ""^^ »«P-
An indictment charged an aa«i.f»nf . i
with stealing ,.aeertln ZyZT.^JJ^T^'''''''
his employer It did „„. *'*'°''* helonging to
taken, whi;;, j^'one ruriis"? f ^ r"=''^ -"»
were found in the prison^ ,.^'-*"' ""'^ "^' '^'^
January, 1870, and Zone Si? "" /"^ l^'" "^
have been taken before Ch , sbT , T^f" """" ~'
al«ndoned the case as tot t r'^rtZT""""
Bot a case in whin!, ti,« * ^ ^' *^^^ ^^ '^ wa«
upon IZhJu^ 1 "^''T'"' '^''"^^ ^ P«^ ^0 ele^
p wnicn articles to proceed, under this aeetinn »
Menwood, 11 (7<,a;, 526. section.— iiJ. y.
On this clause, Greaves remarks •
the same time.lhaVit turl^Tu thTtTe^rdr"''^' **
is:ot:t:rfnF~«^^^^^^^
lll!«l'
I !
r
i :
! f; 1 ;
['•I'f..^
890
PROCKDURE ACT.
led to improper acquittals. The present 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 pre-
vious 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 pro-
secutor is not to be put to elect to proceed on any particular
taking, unless it appear that there were more than three
takings, or that more than 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 takings. A suggestion has been made, that in some
extraordinary cases this may unduly limit the evidence on
the ipart 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 obtain
a conviction for three takings, but it does not at all inter-
fere with the admissibility of any evidence that may in
the opinion of the court tend to explain 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 admis-
sible for the purpose of removing such doubt ])recisely in
the same way as heretofore, but not otherwise. See R. v.
Bleasdale, 2 C. dh 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,"
When it appears by the evidence that the felonious
receiving was one continuous act during a certain period
of time, extending over two years, the court will not com-
PBOCEDIJRE ACT. ' ggj
pel the prosecutor to elect even if ,> k
of the articles received b^ lil, ^""""^ '^'' ''''''
divers fixed dates extendiLtermor J'"'- " '^""^' ''
on more than three occalns T ^ ''^ "''"'^'' ""^
203. When proceedings are taken a»o- *
received goods, knowing them to be sf off .'"^ P""«" '"«'• ''^'^ing
session stolen property,*; viZclJ^vt^"' ""■ ^"' '"^^'"^ '" ^'^ Po«-
proceedings. that Vher"^ was frndTtt^'""' "' *"^ **^«« ^^^ ">«
other property s.olen within he '11,1 ^'""'T "' «"°'' P"«*>"
and such evidence may be aken into . -^i ^"^ ^'''^^'^^ •"""^hfl.
proving that such persL k :w , " pr:n:;;'"f \" '''' '"^^ P-P°- of
of the proceedings taken against hm7oCLt?p'""'^ '^' ^"'^^^^
lees than three days' notice in wrUJn 7 . ' ^^^'^^d. that not
accused, that proof is intendj Jt ^- ' ^'^ ^"^" ^" ^'^ P«'-«0'»
stolen within the precedi^rpel^oft^ mo^th? h' ^^^l^-P^^*^
m h.8 possession : and such notice sI.hII -1 -^ .' *''"^ ^^" f^""**
tion of .uch other property 2d til ^ ^"J^ '^' "*'"••« O"" ^escrip-
Btolen.-40r.. e. 2I 's sZVrTllT,!:^,!^;:' "" ^^'"« **^
See remarks under sees. 82 8^ ft^ «f r
The cases of JR. v. Oddy, 2 Den 264- »„ n
^00 G. 6. 146; an(^iJ. v. i)a^;^«, 6 (7 <fe P 177 ^,, 7
now law since the above enactment ' "'" °"*
Upon an indictment for reopivin,, of^i
0- b„. it u.„st be p.„v/d that ,„!' ^r/;:;^;!:
;if!i'
l.il
9n
PROCEDURE ACT.
wa3 found m the posseasion of the prisoner at the time
When he IS found in possession of the property which is the
subject of the indictment.~ii. v. Drage, U Cox. 85 • ft
V. Carter, 16 Cow, 448. . , ^.
received goods, knowing them to be stoleo, or for bavinji in his dos-
wZ, fl • ^""1^ *" '"' PO^^e8.ion,-then if ,uch person \J,
Tovo i„:rT -mediately preceding. U,en oonvictedorS:.^ off nc
^voJvmg fraud or d.ahone«ty, «videoce of 8i»cl. previous conviction
consideration for the purpose of proving that the person accused knew
the property which wim proved to be in his pos^ssion to have C
8^h nr. '''""" ^'"'''^' ''*** P^*'^ '• '"te-^J^d to i>« given Tf
^ch previous conviction ,, and it shall not be necesswy, for the pu/
poses of this section, to charge in the indictment the pr'^^vious on' t
\;^^^^'^'''''^^^^^^'-i^^.c- 26, ,.4. 34-36r., . 112. I
See Larcmy Aci. sees. 82. 83, 84, p. 443. ank, and
remarks under preceding section.
205. See p. 635, m(e, under c. 167, •' qfenee^ relating to the coin."
a06. See p. 37, mte, c. 147. " An act respecting riots, etc.
PROCEEDINGS WHEN PREVIOUS ' OFFENCE CHARGED.
oi^J'Jll^ P'-oce«<iings upon any indictment for committing any
oflfence after a previous conviction or convictions shall be as follows
^t IS to say : the offender shall, i„ the first instance, be ar^ign^'
oflence, and if he pleads not guilty, or if the court orders a plea of
the «;« >nstance, to inquire concerning such subsequent offence only,
ZlnT' ? ^'T f "'^^"^•'' ^" «-«»'g"-«n^ he pleadsguilty
U 8ha 1 then, and not be/ore, be asked whether he was so previousW
^nv.cted,as alleged in the indictment, and if he answers that he w^
Bopreviously convicted, the court may proceed to sentence him accord-
S' . • •''' ^^'''''^^' he was so previously convicted, or stands
niuto of malice, or will not answer directly to such question, the jury
PKOCEDURK ACT.
W again, but the oath allJ^; t fetl'T '/ TT'' '^ ^^ »'••
be deemed to extend to Hucb J^t mention d '*"' ''""'^^ ^^''^Po^^-
'' "Pon tl.e trial of any person for "nj uc . '?""^ ' ^"'''^'^> "'«t
person gives evidence ofhis JZZ ""I'-'equent offence, such
•n«wer thereto, give ev'de^e o?^e '?'''•'"' "" P'""^-'^-" "'ay" n
previous offence or offencrifo 1 . , '"°" ^'^ ""''»' P^^o" for the
conv.ct,on« at the «a,„e time tl r?hev '"'•'"^"^ «onviction oi
subsequent offe„ce.-32.38r-;c2t*2«!p«r7"'''' '""'*""'"« ""^^^
-4;«o^v.ifar<in, 11 Ooa,, 343.
•"• V. Thomas, 13 Co* '59 o«^
a«fe, also. s. 230. ,«J' ' ""^ ''■"»*» ""der .. 139,
IMfODNOINO DOCUMENTS.
impounded and be kept in cLMTof t^^
other proper persoi,, for ,t,ch Ztd'nA IT °^"" "' '''« ««"rt or
to the court, judge or peraon adrn^Cf, "'^ ^ '" '"^'^ ^^"^'''«»«' a^
^., c. 19, ,. 36. "«"'*««•»«' seems meet.--32!33
^ This clause is not in the Imperial i\r>f n
BisTKoTrao coDNmnjT com.
presence of a justice of the peace and tl ? r^ *'*'"''^' ^'^ '» «'«
lawful owner thei^f, if enchrwne;cIafltK ''"^ *" °^f<>'^»^«
#. 28. ""^^^^ *"*"n8 the same.— 32-33 F., c. 18,
Not in the Imperial Act.
It applies to all courts, civil and criminal.
it
111
894
PROCEDURE ACT.
W1TNE88K8 AND EVIDENCE.
aiO. Every witness duly Hubptanaed to attend and give evidence
at any cnnnnal tr.al l.fhre any court of crinunal jurirdiction Hhall
be bound to attend and remain in attendance throughout the trial -
211. Upon proof to the satisfaction of the ju.lge, of the service of
. «^ 8ubpu,na upon any witness who fails to atten.l or remain in
att ndance and that the presence of such witness is nmterial to t
ends of ju8t.ce, he may, by his warrant, cause such witness to be
apprehended and forthwith brought before him to give evidence a,t
to answer for his disregard o.' the sub,K.na ; and 'such w esTn '
be deta.ned on such warrant before the judge or in the conunon gaof
Of th! rr '^ """ 'r "'T'''' "' ' "''"-«' -' - »'- dis rot •
of the judge, he may be released on a recognizance with or withZ
sureties, conditioned for his appearance to give evidence aZT.
answer for his delault in not attendingor not relining ', aU n. c^
and the judge nmy, in a summary manner, . amine into and dis^o e'
of the charge against such witness, who, if he is found guilty tlei^of
ehall be liable to a Hne not exceeding one hundred dolllro to
.mpnsunment, with or without hard Ipbor. for a term not exceed „«
ninety days, or to both— 3y V., c 36, a. 2. ^^t-eeumg
As to re-calling witnesses, see M. v. Lamdre, 8 L C.J.
181; B. V. Jennings, 20 L. C.J. 291; 2 Taylor Ev
par. 1331. ^ ' ^''
212. If any witness in any criminal case, cognizable by indict-
ment in any court of criminal jurisdiction at any term sessionTnl
sittings of any such court in any part of Canada res des in « '
thereof, not within the ordinary^iu'risdiction'^Si^o ^fb^;,:':,^^^^^
such crinunal case is cognizable, such court may issue a wri of t
p«na, directed to such witness, in like manner as if such w te"' wat
resident w:thi„ the jurisdiction of the court ; and if such wi n h do
not obey such wru of subpcena. the court issuing the same ZZl.
ceed against auch witness for contempt or otherwise, or bind o efsu 1
J. ness to appear at such days and time as are ne essar;^a„dupo
default being made m such appearance, may cause the reci.nlTce
Of such witness to be estreated, and the amount thereof toTZZ
and recovered by process of law, in like manner as if such ITiueZ
was resident within the jurisdiction of the court.-32-33 r! c. 2
PROCKDUUE ACT. ' gg^
gaol, i, reiuire/,,, „,„„ cour o ,"""'•;•: "!'«" H'* limits of «„y
cognisable therein b^ f,,ie '?' """""" J'"--Ji«^ti..„ i„ „„v casi
0''^r i« require*! to aUen „.av or . r'""' '"'^'^^ "''«'•' ^"'^h pH-
-perior court or coSylZn'^'^Uf'' ^V"*='' ''-'•^' - ^^'^ -./
or mHn«« at which the'atte" a^^r J.^h 7 ''"■'"■« "^"^ ""^''^ '"•»
an onler upon the warJon of the LnUe ♦„ '''"''" '" '"'■'l"'""'' '""ko
gao er or other perHon having he XC'' T "^" "" ^''*""«'.
Buch prisoner to the per«on LnlZTurl ." ' P""'^"'"""' '" ''^'i-"
-uch pernon shall, at the tin.: pi i '7:^^ '' 7"'^^ """ '' -<*
priHoner to the place at which ««ch ^!o, """'' .'''•^'"- ««''vey nuch
to receive a„,l ol^y »uch fur tr ?;«/ ^ T'^^
n.eet.-.;S2-33 F., c. 29, ,. 60. ^"^ ^''^ «"''' <^ourt seeme
but, ly the above Ze a y It :";'''f■'''^'^"^''«•
in Canada ranv surnmnn „•.,"""'' J"™''''"'on
caaaa, r„. Jcr;:^::^::^^ ■*'' -'
mon a witness in No™ s„„f . '*"*«'= ™n sum.
subpcnais notobe^ed th "■ T ^' ''^'■"*' """ '' "■«
witness in like maMe'r '! f r"^- P'°°'^'' »«"'»'' "•«
within the jurisdS /tJ eot Te Tl "'""'
Geo. III. c. 92, contains a p^vSon o the" ' ""^ *'
In criminal cases the witness is blund to It T "*""''•
Bions, or of the county i:'^ il';^ ;~ ^^^^ -
.and. to be ^.-de^XT trra^ltr fs"^;
the pnsoue. was brought undera writ of WeC^d
II
#
if
'W
896
PROCEDUUE ACT.
by the officer ni der whose custody the witness is, but by
any other person named by the judge in his order, thereby,
against all notions on the subject, releasing for a while a
prisoner from the custody of his gaoler, who, of course,
ceases, pro tempore, to be responsible for his safe keeping.
The Imperial ace on the subject is the 16-17 V., c. 30,
s. 9. Though our statute does not expressly require it,
. ian affidavit stating the place and cause of confinement of
the witness, and further that his evidence is materir:, and
that the party cannot, in his absence, safely proceed to
trial, should be given in support of the application. And if
the prisoner be confined at a gi-eat distanoo from the place
of trial, the judge will, perhaps, require that the affidavit
should point out in what manner his testimony is material
—2 Taylor, Ev., par. 1149.
214. No person offere<l as a witness shall, by Reason of any alle*
ged incapacity from crime or interest, be excluded f.-om giving evi-
dence on th3 trial of any criminal case, or in eny procet ling relating
or incidental to such case.— 32-3J F., 6. 29, a. 62, and c. 19, s. 54
pa ' '
2\t^, Every person so offered shall be admitted and be compel-
lable to give evidence on oath, or solemn affirmation, wherg an affir-
mation is receivable, notwithstanding that such jjerdon has or may
have an interest in the mattT in question, or in the event of the trial
in which he is offered as a witness, or of any proceeding relating or
incidental to such case, a.id notwithstanding that such person so
oflfered as a witness has been previously convicted of a crime or
offence. —32-33 V., c. 29, t. 63.
These two clauses are taken from the 6-7 V., c. 8.5, s
1, of the Imperial statutes.
At common law, persons convicted of treason, felony,
piracy, perjury, forgery, etc., were not admitted as witnes-'
ses. It was also a general rule of evidence not to admit
the testimony of a witness who was interested, either di.
i-ectly or indirectly, in the event of the trial. These inca-
pacicjes are now ^omoved by the above enactments.
PROCEDURE ACT
In R. T. aemenU Toronto ls''fi^ f
crown called aa a witness a Z 1 ? *" ""*'■ ^e
to death, but whose strenee , i; ""^ '^^"" ^^"''''"^l
for Penitentiary for Uft 1 t ^"' '"•"""'"^'' '» <>»«
«»". J., (arte/ oonsultg^nf Jtl 7, 'J^" '--«•
evidence, saying that he would re°se™ th'"^ k *" ■"'
but the prisoner was acquitted °'''"''"™ '° '■''
In the case of A v. ^eM, I! Cox l^<i r .. x
that, notwithstandins the I«,t .I. ' '""'''• J-- *«W,
person under aenti^ /tafh" » "*"'^^' -'^' »
witn3ss. The evidence of such !w ^^"' "^ ''^'"S a
be of much weight, since h" is no Tm T°' '" ""^ ■=^'«
P-Wsattachedtope^-u^rari:-!
fororagainst'theX _7': ; "' -»"-«> ™mpete„t
V. Gallagher. 13 (7<,a,, 61. "' ^ '^''•'' ^28; A
In i?. V. Winaor, 10 CoiB 97ft ,v , ,
two persons are jointly indfcted w ""' " "■'' ^''''^
of them may be called ZTt^ «'P«''ately tried, one
although the one so caUed as a ^^7' T'"'' ""^^ ''*^"-'
nor acquitted, nor pleaded luiirtolf T '"" '™'''
discharged on a «<,«« .roJ™ S„ ''"'"='""''". "or
.<^-. 121, Chief Justic! cSurn ,d\tt%''"'"^' '^
jouuly indicted are tried separatelv th. [ ''"™°<'"
tion to calling one orisnnT ^' "" '^" ''enoobjec
R. V. ^.n*,'22™ C e 1 :;;""''^ ^- »»">- See
InAv. i)«e%, 11 cb;s, 607,'MelIor T >i .
of the prisoners to be caUed „. -7 ' - """'''"^ '»"
".-«-% wereirti-ntXd™^^^^^^^^^
HHH ®
') »
, )
898
PROCEDURE ACT.
But thia case is over nled, aud in R. v. Payne, 12 Cox,
118, it was hold, by sixteen judges, that after several pris-
oners, jointly indicted and tried, are given in charge to
the jury, one, whilst in such charge, cannot be called as a
witness for another. And in M. v. Thompson, 12 Ccx,
202, upon the same principle, it was held that the wife of
a prisoner, jointly indicted and given in charge to the jury
with other prisoners, cannot be called as a witness by one
of the other prisoners whilst the husband is so in charge
with ihevA.—See JR. v. Boulton, 12 Cox, 87 ;B. v. Brad-
laugh, 15 Cox, 217.
Whenever, therefore, the crown or the defendant intend
to call as a witness one of the co-defendants they should
ask for a separate trial : if it is only after the defendants
have jointly been given in charge to the jury that the
evidence of one of the defendants is discovered to be
necessary, then, if for the crown, a nolle prosequi may be
entered, or a verdict of acquittal may be taken, in the dis-
cretion of the court, if no evidence has been given against
the party who is sought to be made a witness. Then the
discharged piisoner becomes competent to testify either
for the crown, or for his former co-defendants. — 2 Taylor,
Ev., par. 1223.— B. v. Hambly, 16 U. C. Q. B. 617.
If, on a first trial of two prisoners jointly indicted and
tried together, the jury are discharged without giviija a
verdict, there is nothing to prevent the prosecution from
trying only one of the prisoners on the venire de novo, and
then, on this second trial, to call as a witness, on this issue,
the other prisoner. — R. v. Winsor, 10 Cox, 276. Seel
Starkie, Ev., 143, and 2 Sfarkle, 797.
As to necessity for evidence of an accomplice to be cor-
roborated.— iJ. v. Andrews, 12 0. i^. 184 ; following i^. v.
Stuhbs, 7 Cox, 48 ; Bears. 555, and B. v. Beckwith, 8 U. C.
a p. 274.
PEOCEDUKE ACT. ggj^
On a trial for murdpr thr, ^j
principal -Hn^sM^ZZZf^ '"""' ™ *'
oner had told her he was 7 . ' "'"*'«' """prfc-
other evidence herTZr'-„l*' '''''''■ ^'-™ *-
The prisoner having bernTvirr"' "" '"^ ^'^™^'-
^eZ(^, that whether she was an «.« ^^
ve.di.shon,dnothedi.urheLT;X?;r^^^^^^^^^^^^
^~ehtir:™arr--"^ ^^
the husband not belnorhilt-Tf ''^ "^''''^' ^"' ^ad
competent witness!!;^ g^ :' .^^^.r-" »- --en a
(F. B.J 71. ^ ^' ^''^^P^on, 2 Han.
216. On the summary or other < • i
complaint, information or indictmen/T *"^ P*''"'''" "?«» any
assault and battery, the defendant Zllb?!'""'"""" ^'•^""''' «^ ^''^
prosecution or on his own behalf: ^^^O'^petent witness for the
2. On any such trial the wife or hn«l„ i .. ,
a conipetent witness on behalf of the de enlnf ^'''"^""^ ^^^^ ^e
3. If another crime is char.'ed and iuT [ ,
the same is of opinion, at the clot of tl T '''''"^ ^^"'^^ ^« ^^y
tha. the only case apparently rdfero'"? ^^^-^'-P^-ution!
Of assault and battery, the defendant sJu belf /'"" ^"^"'^' «^
the prosecution or on his own behalf a ! I ^.^"'P^tent witnes, for
the defendant is a woman, shal be ' cl f ':"' ^' ^^" ''"«^'""d. if
the defendant, in respect of the ha 'ofT * ^'"'"^^ "" ^^'-"^f
and battery : ""''^"^Se of commou assault, or assault
seciio'^z;, ::; Vp,; TLrz^!^-'^^^^ "'^-^--^^ ^^-a
than common assault, or as.aulfa d ba"! " "''"'" ^'^^ other crime'
"'ation or indictment._43 V., c. 37,52 '^ ""'^'''^ '" ^''^ '"^^*-
217. Nothing herein contained shall Pvn. ^
next preceding section, render any e 'on ^^ •'' r''''' '" ''»«
cnnunal proceeding, with the comnfiiln . " "''"'"S"^^' "' ""7
. n
J
1
■ ,
•ii \
11 !
I 1 .
1 I'
'. '*.
' 11
!
1
■ 1
'}
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ill-
-
! f
- -?*
1
W, '-u
900
PROCEDURE ACT.
lable to /?ive evidence for or against himself, or shall render any
person compellable to answer any question tending to criminate him-
self; and nothing herein contained shall render any husband compe-
tent or compellable to give evidence for or against his wife, or any
wife competent or compellable to give evidence for or against her
husband in any criminal proceeding. — C. S. U. C, c. 32, s. 18. R. S
N. S. (3rd S.), 0. 135, s. 44, part. 19 F. (N. B.), c. 41, *. 2, part
16 V. (P. E. I.), c. 12, *. U,part.
On an indictment for assault and battery occasioning
actual bodily harm, the defendant is not a competent
witness on his own behalf under sec. 216 of the Procedure
Act.— i?. V. Richardson, 46 U. C. Q. B. 375. See M. y.
Bonter, 30 U. C. C. P. 19 , R. v. McDonald, 30 U. C
C. P. 21, note.
The fraudulent removal of goods under 11 G. 2, e. 19 g.
4, is a crime, and a conviction therefor was quashed with
costs against the landlord, because the defendant had been
compelled to testify on the prosecution.— TAe Queen v.
Lackie, 7 0. jR. 431.
By the Interpretation Act, the word " herein " in sec. 217
means " in this act." So that the last part of the sectiou
seems rather a contradiction of parts of sec. 216.
318. The evidence of any person interested or supposed to be
nterested in respect of any deed, writing, instrument or other matter
given in evidence on the trial of any indictment or information against
any person for any oflence punishable under the " Act respecting
Forgery," shall not be sufficient to sustain a conviction for any of the
said oiTences unless the same is corroborated by other legal evidence
in support of such prosecution.— 32-33 V., c. 19, 3. 54, part.
See R. V. Hughes, 2 East P. C. 1002. R, v. Maguire,
Ibid. The Bank prosecutions, R. <S; R. 378.
There is no such enactment in England. The act 9
Geo. 4, c. 32, s. 2, was the first enactment enabling the
party whose name is forged to be a witness for the prose-
cution.
S19
of swea
of any
require(
an oath
tion or
say: <'J
which 8j
effect as
in the us
PROCEDURE ACT. ' ^^^
of any oath ,a, according fo 1 « '^^^,^™»'^ declares that the taking
required to give evidence fnanvTri^^?"' belief, unlawful, who"!
an oath in the usual forn^ be ^eTSd -" ^'^^^
t.on or declaration, beginning^ JuhfhV '"f' '"'^ «°^«'»» ^ffirma
7.: "I, A.B.,doaolem„l3,. 8111^^71' ''"'^^ '"«' ^''^t is to
which said affirmation or decUrSVK V?'^ declareand affirm ; -
effect as if Huch quaker or otht p ^^ n a! i "^ ''■ "" ^^'"^ ^-ce ad
m the usual form.-32-33 V., c. 29,7 ei '^ ''"^ '"^''^ ^« oath
This euactmeat corresponds with the 24 25 V ..
32-33 v., c. 68, and 33-34 V c IT 7 . ' '* ^^'
Statutes. The declaration required m!\ '' ^"^P'"^*
affirmation as follows- cj T''^"''^ ^^^^^^n with the
and truly declare and Iffirmthat thp' t'^'"'''^^' ''""'"''^y
according to my religious beltf , .'"^ '^ "°^ °^^^ ^«'
solemnly, sincerely tnd tru v T ' ' "' ' '' ''''
220. Whenever it is ma,lo f^ „
or ofthe prisoner or defend', l^CXrl^r '"^l^"- °^ ^^^ ^-wn
mr court, or a judge of a couity 001^^1 "^'*J"'^g^ "'"*««?«-
that any person who is dange l,/ n al? r"'"^^^'""«'''^''-.
some hcensed medical practilioner.^s „otTk.r^°' '" '^' "P'"'«» °f
Illness, IS able and willing to give maLn«l f^ "^ ''"''''' '"''O'" «uch
indictable offence,or relaL toaL rl '"'^^'•'"^tion relating to any
auch judge may, by order u^.d^hist^ r""' «^-^«-h offend
take ,n writing the statement on olth or ' « •* * commissioner to
2. Suchcommissionershalltakr, '"'""" "'^"^"^ P^^^O":
thesame and add theretothe names oJtiV'''""'"'""'^ «^*" «"bscnbe
taking thereof, and if the delTt Ln t T"'"'' """^' P^^^^"^ ^t the
for which any accused personTl^^'? J^'"" *° *"^ '"^'^^^ble offence
for trial, shall -ansmitTesame S'tr^'j""* °^ ^^''^^ ^-PPea
officerof the court for trial a rhichl ra?' ^^'^'-'^^^he p^'pe
committed or bailed ; and in eve y o 1 If ^f"*^" ^'' ^^^^ ««
aame to the clerk of the peace of thet, ntv T • ''"" *'"*""'"''^ ^^e
he has taken the same, and such c le,k oJ m' """ '''' "''^ '" ^^'"«1^
same and file it of record, and uUn ' J .' ^u^°' '^*" P'^'^^''^^ ^he
transmit the same to th; IroLj^m Vl '^' «"'"* ">' of a judge
shall be required to be used ate vS:''^ ^°"''' "'^^^^ "- --«
» ;
902
PROCEDURE ACT.
3. If afterwards, upon the trial of any offender or offence to which
the same relates, the person who made the statement is proved to be
dead, or if it is proved tliat there is no reasonable probability that such
person will ever be able to attend at the trial to give evidence, such
statement may, upon the production of the judge's order appointing
such commissioner, be read in evidence, either for or against the
accused, witliout further proof thereof, if the same purports to be
signed by the commissioner by or before whom it purports to have been
taken, and if it is proved to the satisfaction of the court that reasonable
notice of the intention to take such statement was served upon the
person (whether prosecutor or accused) against whom it is proposed
to be read in evidence, and thatsuch person or his counsel or attorney
had, or might have had, if he had chosen to be present, full opportu-
nity of cross-examining the person who made the same. — 43 F., c. 36
ss. 1 and 3, part. 30-31 F., c. 35, s. 6, Itnp.
The notice required by this section is a written notice.
Whether it has been a reasonable notice, and whether the
cppojtunity for cross-examination was sufficient or not, are
questions for the judge at the trial. — E. v. Shurmer, 16
Cox, 94.
221. Whenever a prisoner in actual custody is served or receives
notice of an intention to take such statement as hereinbefore mentioned
the judge who has appointed the commissioner may, by an order ia
writing, direct the gaoler having the custody of the prisoner to convey
him to the place mentioned in the said notice, for the purpose of being
present at the taking of the statement ; and such gaoler shall convey
the prisoner accordingly, and the expenses of such conveyance shall
be paid out of the funds applicable to the other expenses of the prison
from which the prisoner has been conveyed.— 43 F., c. 35, ss.2 and
3, part. 3031 v., c. 35, s. 7, Imp.
222. If, upon the trial of any accused person, it is proved upon
the oath or affirmation of any credible witness, that any person whose
deposition has been taken by a justice in the preliminary vr other
investigation of any charge, is dead, or is so ill as not to be able to
travel, or is absent from Canada, and if it is also proved thatsuch
deposition was taken in the presence of the person accused, and that
he, his counsel or attorney, had a full opportunity of cross-examining
the witness, then if the deposition purports to be signed by the justice
by or before whom the same purports to have been taken, it shall be
PROCEDUEE ACT, qqo
been identically fonrZe'Ltearh"''"^ ""' ""^
Fisone. by the ^epo^itionatrin t M^TLt'r'r
magistrate, and it has even been held^h . ^ ^ "^^
taken on a charae of assanU „ 1 1 l "' " ^<'V'">ition
on an indictn.e"„ri:Tol:f"r:^r;f '""'='"''>
^. 108. Though in the .u'^'^'f^eTnT'^' f ''
Bears. 405, it was held by the court of -^ f ''*'''"■
that a deposition taken on i har^e L "T""' ^'^^"^
robbery, of doing grievous b^irCrTrtftr" 'f
wounding with intent to do grievous h!di f """"'^'y
after the death of the witness if tlT ^ '"'™' '=^'''
deror manslaugh^, whet :':e\r ct^t ^ ttf tX
tiTifrrsrtiir: ^^*^^ r"' "—
tially different,'the de i^:: :ZuZT t" ^""f ""-
sible : see A v. lee. \ F. ^7^3 t 71 1" """■"
Co., 52. But now, in Canada, bylec 2;4 of L^^T' '
Ac, all doubts on the ,uestio.; are ^^^l^'* ul "
t,on taken on "„„,.■ charge against aTr'":' betid
as evidence in the prosecution r.f ., u ^ ^^
o'l^er offence ^.hate^ZPX^ntZl'^'^" '"' """'•'
admissible. deposition is otherwise
i'.W.-'s depodtion.-The deposition^ on „„tb „f
witness legally taken are admissible' evidence aj'bl'
It he IS subsequently tried on a criminal char™ T 7'
exception is in the case of answers to ,ut:S,:;;L:t
I ,
: i
H
ill
i
,
904
PROCEDURE ACT.
i
I
objected to, when his evidence was taken as tending to
criminate him, but which he has been improperly compelled
to answer.— i2. v. Coote, L. R. 4 P. C. 599 ; 12 Cox, 557;
R. V. Oarbett, 1 Den. 236. Where a witness claims pro-'
tection on the ground that an answer may criminate him,
and he is compelled to answer, the answer is inadmissible
whether he claim the protection in the first instance or after
having given some answers tending to criminate himself.—.
R. v. Oarbett, ubi supra. But it seems that the part of
the deposition given before such witness has so claimed the
protection of the court is admissible.— i2. v. Coote, ubi
supra. And the witness need not have been cautioned or
put upon his guard as to the tendency of the question, in
order to render his answer admissible. Sees. 70 and 71 of
the Procedure Act, are applicable to accused persons only
and not to witnesses ; and sec. 72 of the same Act enacts
specially that "nothing herein contained shall prevent any
prosecutor from giving in evidence any admission or con-
fession, or other statement made at any time by the person
accused or charged, which by law would be admissible as
evidence against him." See 3 Russ. 418, and R. v. Coote,
ubi supra.
Also, R. V. Wellinfjs, 14 Cox, 105, and R. v. Beriau,
Ramsay's App. Ca^es, 185.
The fact alone of the witness residing abroad at the time
of the trial is not sufficient to admit his deposition. R. v.
Austin, Dears. '>12.
On a trial for murder, the examination of the deceased
cannot be put in evidence, if the prisoner had not the
opportunity to cross-examine him, ho having knowledge
that it was his interest to do so. — R. v. Milloy, 6 L. K 95.
Depositions not taken in presence of the accused cannot
be submitted to the grand jury under sec. 222, Procedure
Act,— jB. v. Carbray, 13 Q. L. R. 100.
PROCEDUKE ACT. i • jqj
the reaaon that a medta trp^/d tTat tf *?""'' '"'
dd, and that he though,, undrh™ sttllf '"'"'''"''
that she would feint at the Wea of .1 "''™''''
though he wa, of opinion that he could t'"^ r/"'"''
Bee a doctor without difficulty or daCj^W.w".'"
deposition ought not to have Ln ZI^Ia » ' T t!
12 Cox fini. » „ mi ^^"^"^■S.v.Farrett.
T^ J , £. V. nompaon, 13 C«c, 181
The deposition of a witness who has tmv„ll»^ ♦ .,,
assize town, but is too ill f„ ... / 'ravelled to the
before the gmnd j ry ^« v ^'r"' !?''' ""^ *« '^
Depositions taken abroad under the Merchant %f
Act may be received in evidence if thrtTi ^^^^
had._ie. V. Stewart. 13 Cox' 296 ^""^'^ «""«" ^e
vaSLr tirth: :eiLr: i:::Tt r '^^
wbat his deposition befo. the mllZ :» s^ ^LriJ
On a charge of murder, to prove malice or motive a.^in,t
the prisoner, the deposition of the deceased agZrhim
taken befoi^ the magistrates on another chal w4 h Td'
adimssible.— ij. v. BwMey, 13 Cox 2q<!- » i,!^'?,
12 Cox, 101. ' ^^ • ^ ^- W^'ams,
Upon a prosecution for uttering forged notes th» .1 •
tion of one S., taken before the Police Ma"t I f^T
preliminary investigation, was ^X^n' t 17 ''°
proof that S. was absent fi^m Canada. R swol ha i I'T
a few months before, left his (E.'s) hoJse Xt he fS,'
had. for a time, lodged- that «.hp haA ■ ^ "^
from her in the U f b^t no f ''T '"'''' ^''^'^
"le u. C5. but not for six months. The chief
I f
t
906
PROCEDURE ACT.
m
constable of Hamilton, whore the prisoner was tried
proved ineffectual attemj^ts tu find S., by means of personal
inquiries in some places, and correspondence with the
police of other cities. S. had for some tim^ lived with the
prisoner as his wife :
Held, upon a case reserved, Cameron, J., dis., that the
admissibility of the deposition was in the discretion of the
judge at the trial, and that it could not be said that he had
wrongfully admitted it.— r/ieQweenv. Felaon, 1 0. R. 500.
223. The statement made by the accused person before the juatice
ma.y, if necessary, upon the triiil of such person, be given in evidence
against liim witliout further proof tkereof, unless it is proved that
the justice purporting to have signed the same did not in factsi"u the
same. -32-33 V., c. 30, a. 34. 11-12 V., c 42, a. 18, Imp. °
See The Queen v. Soucie, under sec. 4 of c. 168, p.
566, ante. This section must be read in connection with
sees. 70 and 71 of the Procedure Act, p. 688, ante.
224. Depositions taken in tlie preliminary or other investigation
of any charge against any person may be read as evidence hi the
prosecution of such person lor any other offence wliatsoever, upon the
like proof and in the same miiiiner, in all respects, as they may,
according to law, be rea(J in tlie prosecution of the olfence with which
such person was charged vvlien such depositions were taken — ']2-33
v., c. 29, s. 68.
The deposition on oath of a witness is evidence against
him on his trial if he is subsequently charged with a
crime.— ii. V. Cooie, 12 Cox, 557 ; L. B. 4 P. C. 599. See
M. v. Buckley, ante, under sec. 222, and remarks under
that section.
225. A certificate, containing the substance and effect only, omit
ting the formal part, of the indictment and trial for any felony or mis-
demeanor, purporting to be signed by the clerk of the court or other
officer having the custody of the records of the court whereat the
indictment was tried, or among which such indictment h as been filed,
or by the deputy of such clerk or other officer, shall, upon the trial of
VA it5
rROCEDURE ACT.
907
without proof Of the ei^^^^^^^^^^^^^ '^^ '"'""^ "■• '"i*^de,„ea„or,
~n the r:r in^aiZt ^TbrereS " n
C«mpfetf, Acts, by Oreaves, 27 "'''^"'"''-iorf
ua, c uen. 6\i[). But the record or a PRrtifi
cate under the above fiPPtmn o.-. ^^u or a certiti-
another ....-^::^l, "^,_~'^ ""^ "efo^e
emission of seed in order to .>n„«fu * "*"=*'«»a'^y '« prove the actual
en.., i.„„.w,e .h jurdt:rorp,:ro:tL7„r '''•, '-' '"^
penetration only._32^13 r., c. 20, ». 66. "'■'' ^^'" "'
Seesec. 37ofc. 162,p. 197, o«te.
.». be b«„,./,„.„ p^:Ti C;,x ™ I'sr:'''- r^
evidence .nd pre«„„,pii„„ „ .„ i,; |.„ „Ted aij ^l^ T. ^ ,"
place in respect to oti.er trial, for ,„u'rier Ja2 33 p .20"! 62 ' '
conceal h., b.rth and death, she w„a presumed to have
aead. iaylor, on Evidence, Mte 7 » 128 in.fi
that this rule waa barbarous'and .IrLu^^''' "'^
liiW' .
908
PROCEDUKE ACT.
228. In any prosflcution, procewlinj? or trial for any offence nn.Ier
the eiKi.iy-«eventl, H<?ction of " The Larceny Act," a timt«,r mark,
duly regiHtered under the proviHion« of the " Act respecting the Mark-
ing of Ti,ul,er," on any tLnk-r, mast, spar, saw-log, or other descrip-
tion of hnnber, shall he primd facie evi.lence that the samo in the pro
perty of the registered owner of such timl)er mark ; and poflfleflflion by
any offender, or by othera in hin employ, or on his behalf, of any such
timber, maHt, spar, saw-log or other description of lumber ho markt-d,
•hall, in all caws, throw upon the jK-rson charged with any h.icIi
offence the burden of proving that such timber, mast, spar, sawiog or
other description of lumber, came lawfully into his posisession. oi ti.e
possession of such others in his employ or on his behair^.^afon'salJ —
a8V.,c.40,a. I, part.
See sec. 87 of The Larceny Act, p. 467, ante.
The act respecting the marking of timber is c. 64 of
R. S. C.
229. When, upon the trial of any person, it becomes necessary to
prove that any coin produced in evidence against such perron is false
or counterfeit, it shall not he necessary to prove the same to be false
and counterfeit by the evidence of any moneyer or other officer of
Her Majesty's mint, or other person employed in producing the liuvlul
com in Her Majesty's dominions or elsewhere, whether the coin coun-
terfeited is current coin, or the coin of any foreign prince, state or
coun.iy, not current in Canada, but it shall be sufficient to prove the
same to be false or counterfeit by the evidence of any other credible
witne89.-32-33 V., c. 18, *. 30. 24-25 V., c. 99, s. 29, Imp.
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 mry. ^Davia's Cr L
235. * '
230. A certificate, containing the substance and effect only omit-
ting the formal part, of any previous indictment and conviction for
any felony or misdemeanor, m- a copy of any summary conviction,
purporting to be signed by the . V^k f the cou • r other officer hav.
iDg the custody of the rec-i.. -ruit court before which the offender
was first convicted, or to which such summary conviction wus re-
turned, or by the deputy of such clerk or officer, shall, upon proof of
the Identity of the person of the offender, be sufficient evidence of such
^ri
PROCEDURE ACT. g^g
conviction, without proof of the mV,,.*
•'^ee S0C8. 139 and 207 anf^ ^r u- . .
in« EnglUh .ootion, th ;r ;„; ,3ot' '" "«' -""P"-*
The Act 34-35 V <■ 112 « 7« r ^"•
enacuaont a, to p. Jf of a pi^Wof; "2,1^ """^"^ ""
.«»y prove ,„o|, c„„victi„„ , .„,, ,Z7mJ' "" ""P"'" 1»«X
preceding «ctioB, ,1,.||, '„ "r^f """'""*; " P"«iJed ia ,|,e „.x,
.ucl, co„vic., be ...moient'^.iJZe ^r ""'•"' °' "" """•«<. «•
or the «ig„.t„„ or tl,e offlJ.ltrjL oVr,™"™' •""«"" P™'
liove,,g„„d lhecerti/l»,ie._l2-33 r Too '"° !*""»» «Ppeari„g to
Questions teudintr to gxhoqa h -7
one can be forced to cr^inat'e hirB':,?^"'"; ™
can be invoked only by the wit^rLl ^'"'rf
jnJge bound to warn the witness ofht It^b Vt'
may deem it proper to do ao.-2 Taylo^^f' '""f ^^
tbe answer may tend o .rh!i ' . f ' '"• ^l'^*"
Wm to a penaify or forfeit:: rr 7'"""' °' ^^P°»«
will dete^ine. under^rtrcir^Coe^oflbf ""'
soon as the protection is claimed bntlTM ? '"' ^'
the witness fully to explain hoTtl effect to" A'"™«
duced; for. if this were neceasarv til ! *" P™"
"■>« is designed to ^iforlT^^ZCT :''"' ""'
annihilated. witness would at once be
It is now decided, contrary to an opinion formerly
I :
i i|
m '■■(I
910
PROCEDURE ACT.
entertained by several of the judges, that the mere
declaration of a witness on oath, that he believes that the
answer will tend to criminate him, will not suffice to
protect him from answering, when the other circumstances
of the case are such as to induce the judge to believe that
the answer would not really have that tendency. In all
cases of this kind the court must see from the surrounding
circumstances, and the nature of the evidence which the
witness is called to give, that reasonable ground exists for
apprehending danger to the witness from his being com-
pelled to answer. When, however, the fact of such
danger is once made to appear, considerable latitude
should be allowed to the witness in judging for himself of
the effect of a particular question ; for it is obvious that a
question, though at first sight apparently innocent, may
by affording a link in a chain of evidence, become the
means of bringing home an offence to the party answering.
On the whole, as Lord Hardwicke once observed, " these
objections to answering should be held to very strict rules,"
and, in some way or other, the court should have the
sanction of an oath for the facts on which the objection is
founded.— 2 Taylor ^ Ev., par. 1311.
If the prosecution to which the witness might be
exposed, or his liability to a penalty or forfeiture, is barred
by lapse of time, the privilege has ceased and the witness
must answer. — 2 Taylor, Ev., par. 1312.
Whether a witness is bound to answer any question
the direct and immediate effect of answering which might
be to degrade his character, seems doubtful, although
where the transaction as to which the witness is interro-
gated forms any material part of the issue, he will be
obliged to answer, however strongly his evidence may
reflect on his character.
PROCEDURE ACT.
cha-acte. and con AtnTl^^'ori^" "' '^^''"^ *^
much 1.0^ ,o„m for doub Iv ^ 7"°"*'' """-^ "
and authorities tend to show that, "^ ""^ *'^' <^^««
i3 not bound to answer Z tt T'' "°'^ ""^ "'"«»»
« certainl, n.„eh dCinCc/dt'tr ' ''''^"" "'''''''
em times. Even Lord yZT V V ''^ ot mod-
have held on one octtl^frX^' "" '' "''°"<^'' ">
to state whether he had not heenseulll'"' ™' '"""''
in a house of cor^ction. and on ^"tr I'^T'"™^"'
could not so much as be put to him t ''''"""<"'
to have disregarded the ruWK ' "" '" " '"'<=■■ ^ase
for. on a witness det n^ „ tyThrr''''' "^""-'^^
been eonflned for theft 1 „ ? Tf"*'""' ""t he had
observed: " If m do not answ^ the 1^"^'"? ■'"*'y
you there." ™ question, I wiU seud
No doubt cases may arise where th» ) ^ ■
exercise of his discretion would v^ ,'"'«'■ "" ^e
protect the witness troJZeZfJyZ^ :f^^''}'>
annoyance. For insta, oe «1I ,„ ■ "nbecoming
transactions of a remot le n„\Tin """ f """"^"^
suppressed; for the interests otitic ?'""? '^ "«"'^
that the errors of a man's life 10,? nc ""^ '"''"''
forgiven by the community shoud h Tf^" "''■ ^^
brauce at the pleasure of an^' ft ',i„rnrs? ""'.^"'■
respecting alleged impronrieti^, nf ' f . " I'-^^'-ons
no real ground' for as'sum^ a/a Tf ' "'.'"" '""*
guilty of them would not be f It V ""' "'"' '=™''' ^
fairfy be checked. But tl rut / """'"'''■ ""«'" ^'^■'y
be further extended ■ for if h" °'.f"'^"«™ should not
'ion^comparative-y.^^^*^,^^^^^^^^^^^^
P-pies of the witness, and hi ptL^altrf:'
fiff < '
II.-
912
PROCEDURE ACT.
veracity, it is not easy to perceive why he should be pri-
vileged from answering, notwithstanding the answer may
disgrace him. It has, indeed, been termed a harsh alterna-
tive to compel a witness either to commit periury or to
destroy his own reputation ; but, on the other aand, it is
obviously most important that the jury should have the
means of ascertaining the character of the witness, and of
thus forming something like a correct estimate of the value
of his evidence. Moreover, it seems absurd to place the
mere feelings of a profligate witness in competition with
the substantial interests of the parties in the cause. — 2
Taylor, Ev., para. 1313, 1314, 1315; 3 Rasa. 543, 547.
By the words " or refuses to answer " in the said section
(and these words are also in the Imperial statute), it
would, at first sight, seem that the witness questioned as to
a previous conviction is not bound to answer; but it
is obvious that this is not so; and the above quotation
from Taylor goes to show clearly that the question, if
insisted upon by the court, must be answered. Indeed, in
a great many cases, the party putting the question could
not be expected to be ready, on the spot, to prove the
conviction of the witness, otherwise than by himself.
232. It shall not be necessary to prove by the attesting witness
any instrument to the validity of which attestation is not requisite ; and
euch instrument may be proved by admission or otherwise, as if there
had been no attesting witness thereto. — 32-33 V., c. 29, s. 66.
This is, verbcLtim, sej. 7 of 2S V., c. 18, of the Imperial
statutes. Formerly the rule was that if an instrument,
on being produced, appeared to be signed by subscribing
witnesses, one of them, at least, should be called to prove
its execution. The above clause abrogates this rule. It
applies only to instruments to the validity of which
attestation is not requisite. In 2 Taylor, Ev., pars.
PKOOEDORE ACT.
1637, e<a.y., will be found a list „f, J • ^^^
'equmng atteatation in Eogla„d *'''"'""''"'' ''*"'»«°t«
^1 the preceding clause, «,-
from the 28 V., e. 18 ofthe Lne" T"""^"' '« bien
«m seotioa 8 thereof. Befor7,h "*'"'*'• *°<'« "«•-
es^Wiahed rul, that, in a cri I Ua reTT"'' " "'^^ "»
not be proved by com,Mri„, a pair ;. '"'^"'"""8'=™"<i
ac nowledged to be genuin^ : TlZTtT' '""'' ^'^'"^^
witness nor the jury were allowed tT!" ' ''""''*' ">e
with eaeh other, i„ order to « ! ."""P^^'^^witin^,
written by the san.e pt on T'" ^^''^"■«' "oth were
the opinion of the conrf character; but if M.b . .; P^***^"
Tins is see. 3 of the 28-29 V c 18 r ,.
Statutes, a»^o</<„.am«rfi„„ L , ' "! "«> Imperial
pi'iKim on criminal trials. "^ ovidence and
111 the Provincj of Oaeb ' '
taiued iu article 269 of the Onl'"p"!!'?' ^"^«<^'neut is con-
The word adverse in the ah ^ ^''''^"^•^•
n^^rely unfavorable, but hosuZ VT f"'' °'^ ^^^^
^-' H-ver,in^.,.^-,^f-';v^^..^^^^
Jaiitei "^
i;
S i
014
PEOCEDURB ACT.
J., appears to have regarded a witness as " adverse," sim-
ply because he made a statement contrary to what he was
called to prove.
The first part of the clause seems to have always been
the law. It was decided in Ewer v. Ambrose, '6 B. & C.
746, that if a witness called to prove a fact prove the con-
trary, his credit could not be impeached by general evid-
ence, but, in R. v. Ball, 8 C. <& P. 745, that the party is at
liberty to make out his case by other and contradictory
evidence. The portion of the clause allowing a party to
prove that his witness made at any time a different account
of the same transaction seems to be new law, by the said
case of B. v. Ball, ubi supra. See B. v. Little, 15 Cox,
\ 319.
235. Upon any trial, a witness may be cross-examined as to pre-
vious statements made by him in writing, or reduced to writing, rela-
tive to llie subject matter of the case, without such writing being
shown to him ; but if it is intended to contradict the witness by tlie
writing, his attention must, before such contradictory proof can be
given, be called to those parts of the writing which are to be used for
the purpose of so contradicting him ; and the judge at any time dur-
ing the trial may require the production of the writing for his inspec-
tion, and he may thereupon make such use of it for the purposes of
the trial as he thinks fit: Provided, that a deposition of the witness,
purporting to have be-^n taken before a justice on the investigation of
the charge, and to be signed by the witness and the justice, returned
to and produced from the custody of the proper officer, shall be pre-
sumed j^nHja/acic to have been signed by the witness.— 32 33 F.,c_
29, s. 64, 40 F„ c. 26, s. 5.
The words " upon any trial " mean " upon any trial
in any criminal case" This enactment is sec. 5 of 28
v., c. 18, of the Imperial statutes, an Act for amending
the law of evidence and practice on cHminal trials : upon
which see 2 Taylor, Ev., pars. 1301, 1302, 1303 ; 3 Russ.
550. The general rule was that, when a contradictory
statement alleged to have been made by the witness was
rBOCEDDBE ACT.
contained in a letter or oth ' ^^^
part^ shoald produce the doZ^t ""^ ""''-""mimng
have it read, iu order to base anv "•'"' °"'^-""'«. »d
«P0" i^ The above claua ab JarrK-'""' '° "'^ ""■>«'»
was excluded o„e of the best 2,T I""'' "'"^'' "'"oh
ao m^grityof a witness Z'Ct'.^ ^"^f /he n>e»or,
1301. Before the abrogation of ihl i ^''"■' ■^"- F"*-.
not be asked whether h! d id or d y f ' ''"' """^'^ o™"
fact before the magistrate w^f J "« ""^ ^ P-"-«™lar
read, or have read t"o himiisloTA ■"' """"'"^ '>™ '»
8 '^^ <* ^. 26. And it was feST'"''- '• ^''^''^'^^
as to the contents of a former dl ''"''''™ " "'"ess
or any writing „.ade or wrUtlt 1 '"'' ''"""''' '«"«
as his declamtion or deposition wlhZ'<°' ^f"" '" ™''"g
™t.ng read.-7'fe Q j,«., "^/'l";' ";«' having the saiS
prosecution cannot use or referto fb f ' ^ *• 2««- The
putting them i„._ij. ^. j^„hJ ,*° ''<'P''^i'i»'« without
. But if the former doolal^^jf^^rt
■n writing, but merely by parol L . '™'' ^"« »»'
on the subject of it, and if he 1^^'''' ''t™»^-"''°>ined
be called to prove it, if it be a „Z ' T""' ""'""^^ '"V
if -t relevant to th^ issue ^he^t:^^-' '° *^ '^-^'
s.ve.-2 r«3,;o^^ ^„,_ i»r. 12a5 '""'^*''^ """d"-
l.sd.J...ako such «ato„ent, proor "L ^ "°"'''""""j"'<i">i« tb„
ie8uppo8e.i8taleineiit,8uffioie„.,„ , * "• "" «'™''"i«tanoe8 of
Formerly there was some different nf • •
*tW in such a case, proof mi^rbe-^rrtl!:
!■'! ■
! 1 .t
IMI
916
PROCEDURE A'CT.
witness had made the statement denied by him. It must
be observed that the clause applies only to a statement
relative to the subject matter of the case. If it is not
relative to the subject matter of the case, the answer given
by the witness must be taken as conclusive. It seems
that questions respecting the motives, interest or conduct
of the witness, as connected with the cause or with either
of the parties, are relevant quoad this enactment, though
Coleridge, J., in R. v. Lee, 2 Lewin, 154, held that if a
witness denies that he has tampered with the other
witnesses, evidence to contradict him cannot be received.
This case was before the statute, and does not specially
apply to a former statement made by a witness. As
: to the last part of the clause, it is based on a principle
always received under the rules of evidence. It was held
in The Queeri's case, 2 Brod. & B. 311, that where a wit-
ness for a prosecution has been examined in chief, the
defendant cannot afterwards give evidence of any declara-
tion by such witness, or of acts done by him, to procure
persons corruptly to give evidence in support of the prose-
cution, unless he has previously cross-examined such
witness as to such declarations or acts.
VARIANCES — RECORDS.
237. Wliene\ ir, in the indictment whereon a trial is pending
before any court of criminal jurisdiction in Canada, any variance
appears between any matter in writing or in print produced in evidence,
and the recital or setting forth thereof, such court may cause the
indictment to be forthwith amended in such particular or particular^;, by
some officer of the court, and after such amendment the trial shall
proceeil in the same manner in all respects, both with regard to tlie
liability of witnesses to be indicted for perjury, and otherwise, as if uo
B ich variance had appeared. — 32-33 V,, c. 29, s- 70.
This enactment is taken from the 11-12 V., c. 4G,s.
4 of the Imperial statutes.
PROCEDURE ACT.
Foduced in evidence waaltal ff 'o'™'"^"' "-« ■''^
-fn a case of libel th^r-^ section.
»«.t, that the a*l i :::; :^f '» "> ^he indict.
the d^trictof Montreal wWe" .e "L" ""^ ""™''"^'' '-
«»t an amendment o eu^ h ^7^™' '"" ^ ^^-«'
allowcd-A V. ffiA„; n. i? 13';''°' "°-" »»' "e
238. WJienever, on the trial
miH.ierneanor, any variance appears'Ll"'^'°'T' ''^'' "^"^ ^^^o-y or
I .ctrnent and the evidence offered ^ 'Z7 "'' ''"'^"'^"' '■" ^^"ch
places or other matters or circumltanprr.'"''"^' ''" "«'"^«. date«
mi to the merits of the care anTb; h """ '"^"^'^"^'J' "'>t "' -
person on tr.al cannot 'e prejudiced in ) ;?"'"''^'''"«"' vv hereof the
court before which the trial s Sn^ n" ''r^ '" ^"'^'^ "'"it., th
be amended according to theCoofl '"^ ''''^'' ^"«h indictn.ent to
other penson-both in t1,at part of t I Z^^ '''"^ ^'' ^'^ ^-^ -
occur, and in every other pLoftindr'"?' T'"" "'« — ««
necessary to amend on such term a 'fn "' ^''"''^ '^ '"'^-V thecoma
before the same oranother jurv Ts ^u^^ '"''^''T^ *'- trial io be had
^f the trial is postponed the court ma/e^rt;''"'""''^"^^^'^ ' «"d
prosecutor and witnesses, and of the defr/''''''"="'^'^"«^«of the
any, m which case they .hall resp^ tivelv b '?' '",' "'^ "'"''-' '^
timeand ph.ce to winch the trial VsZJ ,^°""'^ '^ «*'^»J "t the
newrecogni.ances. an.J as if,such t nfel Tf ' 'T'^""' '"^^'•'"" >"^o
.n the recognizances respited as h2 „? .^^ ''"^^ ''^^'^ u.entioned
bound to appear.-32.33 V^ 11,^1 ^^ ''^'''^' ^''^3' were respectively
^''^^^n^^Zt::^::^^::^ ^-^ ^^-n proceed, whenever
consequences, both with respe 'o t " ^"1'"' ""'^ "'''"' *''« ^"'^'"e
-"-ted for perjury and in alU he/ esoe^ts ' v' "'"'^^'^^^ ^'^ ^^«
I'a-i occurred.-32-33 V., c. 29, ^. 72. ^ ' ''' '^ ""^ ^"^h variance
240. In such case the orcler fnr n
on the record; and all othe rdlfa " nT"';""* ^'^^'' '^ '"'^--J
w.th .hall be an,ended accord! Hv bvhp "'"""' ''"''''"^^^ '^^^^-e-
---nent, among the pro;^^:^:^---^;;^^
H • h
-y^
ill
918
PROCEDURE ACT.
241. When any such trial is had before a second jury, the Crown
and the defendant respectively shall be entitled to the same challenges
as they were entitled to with respect to the first jury.— 32-33 Fl, c. 29,
«. 74.
242. Every verdict and judgment given after the making of any
such amendment shall be of the same force and effect in all respects
as if the indictment had originally been in the same form in which it
id after such amendment has been made.— 32-33 V., <?. 29, s. 75.
243. If it becomes necessary to draw up a formal record in any
case in which an amendment has been made as aforesaid, such
record shall be drawn up in the form in which the indictment remained
after the amendment was made, without taking any notice of the fact
of such amendment having been made.— 32-33 F., c 29, s. 76.
These clauses are taken from the 14-15 V., c. 100, of the
Imperial statutes (Lord Campbell's act), in relation to
which Greaves remarks : —
" This is one of the most important sections in the act,
and, if the power given by it be properly exercised, will
tend very materially to the better administration of crim-
inal justice. Formerly, if any variance occurred between
any allegation in an indictment, and the evidence adduced
in support of it, the prisoner was entitled to be acquitted.
This led to much inconvenience. It caused the multipli-
cation of counts, varying the statement in as many ways aa
it was possible to conceive the evidence could support, and
thereby greatly increased the expense of the * -"•?<«cution. It
sometimes led to the entire escape of heincub ,. Tor it
happened in some cases that the grand jury wer.; -^d
before the acquittal took place ; and though sucl. aittal
in many cases would not have operated as a bar to another
indictment, yet the prosecutor chose rather to submit to
the first defeat, than to prefer another indictment at a
subsequent assizes ; and even in some cases an acquittal
took place under such circumstances that the prisoner was
enabled successfully to plead it in bar to another indict-
PKOCEDUUE ACT. gjg
ment. Thus in Sheen's case 2 G Rr v roa i.
prisoner had been indicteT'for f^ . ' ^^''' ^^^
William Beadle, and a«^ ?^ .^^-^^-
name of the dec aaed conirnof be" !v h?""^ ''"' ''^
indictment, which charge"^^^^^ ^^^^^'l^-t
William, he pleaded fh«f ""'^''^^^^^^^««
i", lie pieaaed the former acquittal nnA fi.„f n
deceased was as well known k. ,, ^""^^' ^"^ '^at the
me jury lound. This case clearly shows that thL
preferring a new bill wna ««*. • i, ^^ *^^^
.eve. f .n„e o^tz rLitryr^t^
and many l.ke oases have occurred. °° '
." ^'": Pf»™ion3 as to the amendment of variance, i„
cnm.nal «jses have been graduaUy extended ThrU,
trie a (,eo. IV., o. 15. which empowered anv ii,d» ,. • •
pnus. or any court of oyer and "erminer and « IT
dehvery to amend any variance, in cases of mrdemeaTo '
between any mat.«r in v,rUingor in^„t, and th rTcM
hereof on the record. After this statute had been in oTem
tion for the full period of twenty years, and no iniurZ
co„se,„eno.s had been found to arise ftom it th? ""2
v., c. 46, 3. 4. empowered any court of over «,d ,„/
»nd gene^l gaol delivery to a'mend anyCiate ~
pnnt and the recital thereof on the record La\T
provisions of this act were extended t„T "
far as they are applicable to.ff ^ '''"°'"" "'
, ■' , appiicaoie to offences within their inria
diction, by the 12-13 V., c. 45, s 10
™Jtl:' '!"^^<:».«'='"'^»'« only applied to variances between
this act was intended ^^,,i;z^tt::::::r ^
•I
!!
J i
II
) (!■
920
PROCEDURE ACT.
this section originally stood, immediately after the words
'persons whatsoever therein named or described,' followed
the general words * or any variance between such state-
ment and the evidence ottered in proof in any other matter
or thing whatsoever.' These words were objected to as
being too general, and struck out on that ground in the
House of Lords. The words ' or in the name or description
of any matter or thing therein named or described ' were
then inserted in the Lords. A doubt subsequently arose
whether, in case any property were described as belonging to
certain persons, and it turned out to belong to more or less
in number than the persons named, an amendment could be
made as the clause then stood ; in other words, whether
the clause warranted an amendment in the number of
owners of property ; and to avoid this difficulty, the words
' or in the ownership of any property therein named or
described ' were inserted. The striking out of the general
words is much to be regretted, as cases precisely within
the same mischief as those provided for will very probably
occur.
" As the clause now stands, it is limited to the par-
ticular variances therein enumerated, and, not only so, but
it is so cautiously framed, that whilst on the one hand it is
so worded as to prevent the escape of offenders by reason
of variances not material to the merits of the case, so on the
other it does not permit any amendment to be made
w^hereby the defendant may be prejudiced in his defence
upon such merits. In every case, therefore, wl.vj-e a
variance occurs, the court will have to consider the follow-
ing questions : 1st, whether the variance be in one of the
matters specified in the section ; 2ndly, whether it be ' not
material to the merits of the case ; ' and lastly, if it appear
not material to the merits of the case, whether the defendant
PROCEDURE ACT. ' 921
'— rro^Hter^irr/rr-^'-
have heard and considered all the evidence with rcfcvence
to the q„est.on of the guilt or innocence of the pri nerof
that the charge wa., not proved. It would be a perversion
oflanguageto apply such an expression to a do Th re
the pnsoner was acquitted on the g,.„„d of a trifltg
variance or a technical quibble. '^
"It may be well to obser™ that a matter may well
constitute some part of the merits of a case, and yet a
variance as to the name or description of such matter n ay
no be material to the merits of the case. Thus, upon the
t^ial of an indictment for stealing an animal, the proof of
the aninial stolen constitutes a part of the merits of the
case and yet the description of it, as a ewe instead of a
lamb may not be in the least degree mateiial to the
■merits of the case as above explained.
"It is to be carefully noticed, also' that an amendment
s«;2, prohibited where the defendant may be prejudiced
n his defence up<^ the merUe, not i„ his defence simply,
mleed, wherever any variance occurs which makes an
amendment necessary, it may be truly said that the
defendant may be prejudiced in his defence by making it ■
or if the amendment bo not made the defendant would b^
entitled to be acquitted. The prejudice, therefore, to the
defendant, which is to prevent an amendment, is p;operly
couflned to a prejudice in his defence upon tlj^rul
922
PliOOEDURB AOT.
which plainly means a substantial, and not a formal or
technical defence to the charge made against him.
" The clause applies in terms to six classes :
'• I. The name of any county, riding, division, city,
borough, town corporate, parish, township, or place, men-
tioned or described in the indictment.
" II. The name or description of any person or persons,
or body politic or corporate, stated to be the owner or
owners of any property which forms the subject of any
offence charged in the indictment.
"III. The name or description of any person or persons,
body politic or corporate, alleged to be injured or damaged,
or intended to be injured or damaged, by the commission of
the offence charged in the indictment.
" IV. The christian name or surname, or both christian
name and surname, or other description of any person or
persons named or described in the indictment."
" V. The name or description of any matter or thing
whatsoever, named or described in the indictment."
(By the interpretation clause of the Procedure Act, the
term ' indictment ' includes inquisition, information, pre-
sentment, plea, replication, and other pleading, as well as
a nid priiL8 recx)rd, consequently the power of ameudmeut
extends to all.)
" With regard to the cases in which an amendment
ought to be made or refused, as the questions whether the
variance be material to the merits of the case, and whether
the defendant may be prejudiced in his defence on the
merits by making an amendment, are questions which must
necessarily depend on the particular charge and particular
circumstances of each case, it is impossible to lay down
any general rule by which the court may be guided in all
PROCEDURE ACT.
929
oases; indeed it is very nossihifi fhnf n
P^eJudice the pS^ i';;..:,'; XT' ""«'" '""'^'""'
" Caaea may easily be put where uo doubt canexi.st ,I,.f
the variance ia not materlRl f„ fu ""^"^nexiat that
defendantcannott^^'^.fcS^ '":"»'"'• ,""'' """ ""■
defence on the moL Z , ^ """'■"''n™' i" Im
aheepiathoni^hrot'of a ed" r' " "■"" ^'"*'' »
time of the name of the „»!,;; ^f'TV'""""' "' "'"
caae it ia very diffienU to ZZ^ r ^f ^ ^^^^
owner can be material to the morita „r .1 TT . ,
dant can be prejudiced in hia de e„ e^ th ", t fT
owner being amended accoriing to the proof So al f
man were to shoot into a crowl and wo^rdl 'a, ::,„'*
vidual, the name of auch individual could hardly by I '
s.b,hty be material. In each caae, however. ^700"^
m ,a form .t. own judgment upon a conaideratiou of the
whole facta of the caae. and the manner in which the
variance .a brought under ita notice; and it may Tot un
frequently be material to aee whether anv ,„ h .
ha, been reiaed before the committin m^;"'. " ;
case haa proceeded before the aitting m^gistrat^ wit „
any such question being raised, that may afford lo"
ground at leaat for concluding that the defendan did „™
conaidor the point material to hia defence and M,! •.
not en,uied to be ao considered upon tl" '""' '' "
Before determining upon making an amendment ti..
court should receive all the evidence arCb „ to the
partioularpoin, otherwise it might happen tCtlatwhii
924
PROCEDURE ACT.
i
appeared to be a variance upon the evidence at one stage
of the trial, might afterwards be sb vvn to be no variance
by the evidence at a later period of the trial ; and if the
court were to amend on the evidence at the earlier period,
it would be obliged to direct an acquittal upon the evidence
at the subsequent period, for the clause gives no power to
amend the same identical particular more than once.
" Again, in order to ascertain whether the prisoner may
be prejudiced in his defence by the amendment, the court
ought to look, not only to the facts in evidence on the
part of the prosecution at the time when the amendment
is applied for, but also to the defence already set up, or
intended to be set up ; for which purpose it may, perhaps,
in some cases be necessary to examine a witness or two on
behalf of the defendant. It must be remembered that the
question is one entirely for the court, and that the court
must decide it itself; and, generally speaking, where this
is the case, the court will not determine the question
before it on the evidence on one side, but will permit the
other side immediately to introduce any evidence that may
bear upon the question, so that the whole facts relating
to the particular question may be before the court at once.
" Thus — to mention an analogous case — where the
plaintiff proposed to put in evidence an account signed by
the defendant, and the defendant proposed to exclude the
account, on the ground that it had been delivered to the
plaintiff, an attorney, in his character of attorney for the
defendant, Erie, J., held that the defendant was entitled
immediately to put in a letter, and call a witness to prove
that the account was so delivered, though the plaintiff's
case was not closed. — Cleave v. Jones, Hereford Summer
Assizes, 1851. It must be noticed, also, that the power
to amend clearly does not extend to altering the charge in
1
PROCEDURE ACT
925
"::::r :::::::: t^^^^^^^^ ^o,
'Stealing, into an iniHr^TC ■ Z-^'' 'f"""™' ^-
tences.' ' obtaining by false pre.
offence, however 'fmple it ' !' """• ^""^
particulars ; it mnaTtv tte ITlI^'^^^^ .""■"''- »'
"ent parts, aU of wliioh togefc '„« >; '"' "^ """P""
transaction. Now tlie reafmZ f? ™' ""''""ual
provide. ,o« ieep to .hrleTnti: . tL'^"; "' "'^''
;»y amend any snch error as is men.r^idtrr '""
to one or more of tlie particnlars inc Inded " f""'" ''
action. For instance, a burdarv is Ih f "'' "™-
of James Jones, in the parishrf W „km '' V *' """"^^
goods of John Jeffs. The ovidlrshowsTh f t "^ *^
^»■as committed in every respect as „,. " '""■8'"^^
goods were thepi^pertjof Srjt^^'^C'P'aa'the
ment would clearly be riaht K, * "'' """^nd-
acase, it was proposed fp'e^^r'T'' '''^'^'''' "'^^"^
- -other p Je i^ a„tl~ ^rL^rT^r'
of other g«,ds ; this clearly wonld not be T f """''"«
ment. The proper mode to consider th ! ™'"''-
tbe grand jury have had evidence of ':.""°" '' ""'^ =
which they found the bill; the re befo "7*""' "f™
o..ght to be confined to the sameTr! ? *' ^""^ J"^y
it n.ay turn out that, etherXo !,::«: "^-V-^ " '"'
gaticn or otherwise, the grand iurv favrb'"™"-
to some particular orothtr, an ^o" I Z .'h '""' "^
-epiaintiffsdecWon\:-:^»ti'5:i-
J
926
PROCEDURE ACT.
by the defendant, dated the 9th of November, 1838, pay-
able to the plaintiffs, or their order, on demand; the
defendant pleaded that he did not make the note ; the
plaintiffs proved on the trial a joint and several promissory
note for £250, made by the defendant and his wife, dated
the 6th of November, payable twelve months after date,
with interest. There was no proof of the existence of any
other note. Although it was objected that there was a mate-
rial variance in the substantial parts of the note, the date, the
parties, and the period of its duration, it was held that the
declaration was properly amended, so as to make it cor-
respond with the note produced ; for it was a mere mis-
description, and it was just the case in which the Legisla-
ture intended that the discretionary power of amendment
should be exercised. -—Beckett v. Button, 7 M. S W. 157.
The amendment was made under the 3 & 4 Wm. IV., c.
42, sec. 23.
"The following appear to be the sort of variances
which are amendable . In an indictment for bigamy, a
woman described as a ' widow ' who is proved to be
unmarried. — R, v. Deeley, 1 Moo. C. C. 303 ; or as
'Ann Gooding,* where the register described her as
' Sarah Ann Gooding : ' R. v. Oooding, C. & M. 297.
In an indictment for night poaching describing a wood
as ' The Old Walk,' its real name being ' The Long
Walk.' — R. V. Owen, 1 Moo. C. C. 118. In an indict-
ment for stealing ' a cow,' which was * a heifer ;' Cooke's
case, 1 Leach, 105; *a sheep,' which turned out to be 'a
]amb.' — R. v. Loom, 1 Moo, G. C. 160; or 'ewe.' — R. v.
Puddifoot, 1 Moo. G. G. 247; 'a filly,' which was a
* mare : ' R. v. Jones, 2 Russ. 364 ; ' a spade,' which
turned out to be the iron part, without any handle. — R. v.
Stiles, 2 Rtiss. 316. So in an indictment for a nuisance,
1
PKOCEDURE ACT. 937
part of the parish is sitLt^^ I'lr^Hh ' ™1'
ment may be amended ff „ d , ^' ""* ""'"='-
shee^ eVidence wer Ue;;;" rr"' '" ^'^^""= "
--. 0. on an indietrnZ t ti^r TJ:-
r^nd'xrr :^ r=r ^^ -"'- -^^
conceive that th"gUd try"?' t " ""^""'"^ '»
mistake, and the offroe tholh f'™ T**' '"* "
Hah. . the same ^^Z:Z^ :'::^
;:ih:er'"'^^^^""-'"-'-^"''"et«adiffr:
ciX's as't'r '? '"^" "^"•^^-O "y "-e courts in
civu oases as to the instances in which amendments ou^ht
■ stands on the record unamended, would the same enabk
— easadefenctulr'tLilt:^:-:--
. •;;
928
PROCEDURE ACT.
stood, would be equally so after the alteration was made,
and any evidence the defendant might have would be
equally applicable to the indictment in the one form as in
the other, the amendment would not be one by which the
defendant could be prejudiced in his defence, or in a
matter material to the merits. — Ourford v. Bailey, 3 M. <&
0. 781. If the transaction is not altered by the amend-
ment, but remains precisely the same, the amendment
ought to be allowed. — Gooke v. Stratford, 13 M. <& W,
379. But if the amendment would substitute a different
transaction from that alleged, it ought not to be made :
Peri^y v. Watts, 3 M. & 0. 775 ; Brashier v. Jackson, 6
M. & TT. 549 ; and the court will look at all the
circumstances of the case to asc( oain whether the trans-
action would be changed by the amendment. If the
amendment would render it necessary to plead a different
plea, the amendment ought not to be made. — Perry v.
Watts, 3 M. dh G.77o; Brashier v. Jackson, 6 M. <& W.
549.
" It was laid down in two cases of perjury, which were
tried some years ag , that ani<Midments in criminal cases
ought to be made sparingly under the 9 Geo. ,1V. c. 15;
E. V. Gooke, 1 G.&P. 559 ; R. v. Heivins, 9. G. S. P. 786.
These cases occurred at a time when amendments in cri-
minal cases were looked upon with great disfavor; but
the opinion of the Legislature, evidenced by the 11-12 V.,
c. 46, s. 4, the 12-13 V., c. 45, sec. 10, and the present
statute, clearly is in favor of amendments being made iu
all cases where the amendment is not material to the
merits, and the prisoner is not prejudiced by it. In civil
suits, the 9 Geo. IV. c. 15, and the 3 4 Wm, IV. c. 42,
sec. 23, being remedial acts, have always received a liber-
al construction; Smith \. Brandram, 2 M. d- G. 244;
I* 'f
PROCEDURE ACT.
SmUh V. Knoweldon, 2 M ^ r kc.. ^^^
Matthews, ^ M. & W M'\ ' . ^- ^^^J Sainshury v
feet of an acta being a Clt^T ''°'"'.'"'"' """' ">»'
«- the part of a landlord X w , ?'?"'''"™ P'-<"='=<'«„g
forfeiture in order to get possesZ f "' '"'■™'*^« <" »
'he defendant had laid' oufa Ce e„: T"'' "^ -'"*
a consideration which oaght to tl "' ""ney, was not
"■lowing an amendment'fl if "1"'°°^ "•""''S'' "g^'"''
prejudice the defendant in h , d.f '""'°'^'»«°' ^id not
aIlowed._i,oe<i.j|/-„J„^"v " r' " ™8'" '" ^
"I" fact the Le.,^tl\ *• ^ ^- '^ ^- 1<"55.
O»estions to be eo.^t ' , ^^/^^a"^ ^^""^^ the
meat; these are. Ist, whether 2^^^'"^.™ ""^d-
the merits of the case • and 2nd t TT "^ ""'^"''J 'o
may be p,^judiced b; the l^lV '""' *^ ■ "efendant
such merits. These are . Jain ."" '" "^ «'^f»°'^ on
form a certain gu de r t; de't! """''' ''■''"'™^- »<•
an<. if the courts^s the;:l*^^~Xr r ^
mme each case with reference I 1 ™'^ *tei^
there can be little donb ttThe wiu;'"""°" ^'""^•
in the decisions upon this clause Tt ,f '"','""f°™ity
plain intention of the legislature .n """ "'^ '" '>•«
ground of any supposed h:rl:Mp'r~is^''V™ '•■'
malce an amendment of a vitJJI °™'«'"o. refuse to
merit, and whereby the defenc" wTll no b""''™' *" """
l>is defence on the merits, uncerWntv „^/'J"*"' '"
necessarily arise, and the b;neS ffl of ItT ""'
much diminished. The court, i„ T ^ "'*'"''' "»
of making an amendmenT 2 uT ™^ ""^ P^P"^'^
great object of the stat te I * 'omember that the
«pon the menu. ^ <^nd justice of the owe
"The amendmentmuatbe^madein the course of the trial,
11'
^ 1
.t1
930
PROCEDURE ACT.
and certainly before the jury give their verdict, because
the trial is to proceed and the jury are to give their opinion
upon the amended record : per Alderson, B., Brashier v.
Jackson, 6 M. & W. 549. It would be better, indeed, in
all cases to make it immediately before any further evid-
ence is given, and where the amendment is ordered in the
course of the case for the prosecution, it certainly should
b ■ before the defence begins, for it is to the amended
reo -uat the defence is to be made.
" It may be observed, tliat as the power to amend is
vested entirely in the discretion of the courts, a case can-
not be reserved under the 11-12 V., c. 78 (establishing
the court of^ crown cases reserved), as to the propriety of
jnaking an amendment, as that statute only authorizes the
reservation of ' a question of law.' If, however, a case
should arivse in which the question was, whether the court
had jwrisdiction to make a particular amendment — in
other words, whether a particular amendment fell within
the term of the statute, there the court might reserve a case
for the opinion of the judges as to that point, as that
would clearly be a mere question of law.' — Lord Campbell's
Acts, by Greaves, p. 2.
The English statute is not exactly in the same terms as
ours ; it reads thus ;
" rom and after the coming of this act into operation,
whenever on the trial of any indictment for any felony or
misdemeanor there shall appear to be any variance between
the statement in such indictment and the evidence offered
in proof thereof, hi the name of any county, nding,
division, city, borough, town, corporate parish, township
or place mentioned or described in any such indictment,
or in the name or descripftion of any person or persons,
or body politic, or corporate, therein stated or alleged to be
1 . J. •.iiillS S
I
raOOEDORE AOT.
the owner or owners of n ''^
f"-^^^'^^ o. oorporat!,ZZZT'^ "^™<""
^^y^^ iy thslnLi^^^^ ^ injured or
fe ««m. or description of a2Tf„ "'" ''^'""K or m
™ay be lawful for the court wl? f t'^"' " »•""' ""d
W if it ahall consider such vari' „»? . *' '''*' '"aU be
ments of the case, and that the IlJa "'''"'''' '^ ^^o
jud.ced thereby on hia defence ot fuch "'"""' "^ ?'-
such indictment to be amended ,1 ? """"■ '» "■der
some offlcer of the court or ot r~'.,'° '"^ P-f by
It will be seen that all the j""^^™-
are replaced in our statute by the w T^\ '^^ '■' *«^«»
Vl^es. or other matters or Hr.Z, " '" '""^'. dutes,
ty>nuir which cover all the sutT"'*' '^'"^'' ^^
English statute, and have beli ""°"°"<'<' '» 'ho
meaning. '""^' "'^"i''- a more extensive
In the English statute, the word, ...v. .
such variance not material to the ™ I ! '''*" """sWer
clearly that there it is iltvarCZT ^'u"^'" '"">-
"terial, whilst in our statXT" r*" ""■'' "^ °<"
places, or other matters or circu V "'""^'' """tes,
n»t n,atcriul to the merits of the ralr""' *'"'<='' »"■»' be
Another difference between tl,.?
that, in the Imperial Ac r"„L, '7;'»'""«^ »onsi* in
-»t be remem'bered tlat h^ &1'^ '^--, and it
"' ^'^ ^s the awewrf-
1 1
i : H
932
PROCEDURE ACT.
ment by which tho dofendant must not be prejudiced,
whilst, in our statute, it is the raiastai^cnent which must
not prejudice the defendant in his defence on the merits.
This certainly seems an error in our statute. The misst'^te-
ment, as long as it remains, can prejudice the prosecutor,
not the defendant, whilst the amending of that misstate-
ment is what the legislator did not intend to allow, when
the defendant could suffer from such an amendment in his
defence on the merits. — See 3 Buaa. 321 ; and Chreaves'
remarks, ante, on the English Statute.
Greaves' MSS note. — " In my Preface to Lord Campbell's
Acts, I adverted to the great discussion and great difficulty
encountered in obtaining the limited power of amendment
there mentioned ; it was this that led to the specification
of the particulars in which amendments might be made,
and to the rejection of general words at the end, by which
it was intended that every other variance should be ameu-
.dable if the defendant could not be prejudiced thereby in
his defence on the merits. The alteration in the Canada
Act, from particulars to generalities, is perfectly right.
But the other alterations are much to be regretted. In
the original clause it is the variance which must be not
material ; as I read the new clauses it is the matter or
circumstance that must be not material. It seems that
the words " not material " must refer to the immediately
preceding words, and cannot refer to " variance," by correct
grammatical construction, and the subsequent words " the
misstatement of which" make this perfectly clear; for
there cannot be a misstatement (in the indictment) of a
variance. Fatal variances only occur where the matter,
which the evidence negatives or fails to prove, is material,
and therefore very serious questions may arise as to the
power to amend.
(I I
(by I
^d ■
extre
ofTa
prosec
Ani
origin!
such ^
omits
the vei
afterwj
a subs
change
PROCEDtmi! ACT.
The Words " thA A f ^
«"> very pith „f thV o^Iat " '"' """" "'^"''" »~
extremely wellp„i„ted ouut p 332 .v??'- ^«' ■« '"
of Tasehereau's Grim. Act, )VL „ f//"!' ^^ "' 1^' 'edition
prosecator, who k prejtdi jd L- ''"''""'• >"" "«
Another objection'; The trr**""™'- »''-^.
o"^oal act. theoourtmayameL ;'>'%""" ""^ «>«
such varianoe not material •■ oV. . ^ *' '^^ '»'«*'«'•
omits m altogether, and' mat' 7,^"*^ 'he new dau™
the very worfs „f the olanse Zl\? ■''"'"""" ""^ "P"-
"fterwaixia before "oKler" ia h """'"'"' °' " """y "
a substitution for the omitted'' Tol""^ ?""''"" <»
change of the word, from before to aler ' t" , "'. ""'^ »
"««r not material," etc.
Section 242 it a« ^
-tion 243 is intended To ;::»:: "^'"^ '''''''■ ""O
raised by writ of error as to »n! *"J ''"°'"°" heing
be made; W (7„«. ^V^r'""' """ "'S'^'
™7 --»« m ou; seoUor'ta "if ^^'n"" P"^
ments made nnder the ant ,n„i 1 ^'^ *" "" amend-
of the enactment repr^dntd n f '™' """"^ '" "«»«
dure Act (see a^fe.'ftldear" 7,."" ':" "^ o^ftoc
words "as afo^said'" in thl^i 'si tr2"4Tr ™ "^ '"^
the words " under thp ^r. • • "^'^ °^ ^ur act foi-
English correspond „! XT":."' '''' ""'" >» 'ht
enactment not applilietl^' " '"'"' '" ""''^^ 'he
aaid section US^ut^ZZ^AT^"'''' •-«'- 'he
of such an amendmenrSnT^:'""^ '■"".■" 'he case
appear, if a formal reconi has ^^.r '■ " ■»"'' «»
-y. perhaps, be said 0' a^ '!^7 "P' ^he s.me
tion 237. ^ amendment under sec
934
PROOEDUBE Acrr.
Greaves, in 3 Buss. 324, has the following remarks on
the English statute : —
" It has been well laid down by a very learned judge
(Byles, J., in R. v. Welton, 9 Cox, 297,) that a statute like
the 14-15 v., c. 100, should have a wide construction, and
should not be interpreted in favor of technical strictness,
and there are very stron^ reasons why a liberal construc-
tion should be made on such a statute. If a prisoner is
acquitted on the ground of a variance, he may be again
more correctly indicted, and wherever this course is
adopted, the effect of an acquittal on such a variance is to
put both the prosecutor and prisoner to additional trouble
and expense. And in case where no fresh indictment is
preferred, the result is that the costs of the prosecution are
thrown away, and an offender, possibly a very notorious
one, escapes the punishment he deserves. In every case
where an acquittal takes place in consequence of a
variance, the court may order a fresh indictment to be pre-
fened, and the prisoner to be detained in prison or
admitted to bail till it is tried, and it may be well for the
court, where a variance occurs, to consider whether the
prisoner might not fairly be presented with the option
either of having the amendment made or of being indicted
anew in a better form."
WHEN THE AMENDMENT MUST BE MADE.
It had been laid down in R. v. Rymes, Z G. & K. 326,
that an amendment should not be allowed after the counsel
for the defence has addressed the jury, but this case is now
no authority, and an amendment may be allowed after the
prisoner's counsel has addressed the jury. — R. v. Fullarton,
6 Cox, 194.
PROCEDURE ACT.
,, ■' Upon full consideration/' a'af, „ ^''""■' " ^«' ^3.
'■" 'eems that the verdict i^^ .'"• " ^'^- 329,
o«e familiar with cri„!^l . ,, " "*"''""« "»»• Any'
-0, where variances la ett h"'"'.''"^^ "»' *"h
juat before the ve„lict i, oiven a ,d h" ''"™^'"''"' "»'"
fme for amendment is inihe wor^ , " t"'^ ""'" '» "'«
tnal i, clearly continuing ZiuZl 7- ''" '""'■' """ "">
amend i, given • wkeJer^ntU^ ,"1r': "' "" P°"«^'<'
to be any variance. ''" '™' «'«^'^ «■»« appear
all 'th'^lrdrce'';!:^';^ 'h-'. -"rt .^^
question to be det^rmfned 7, b- ^°'"'' ""'' "" ""' " "
left to the jury, the evidence "bear: °'""'- ^"' '' ""' "> t*
be in the possession of the nW " "'""' " "^^'"^ '^V
-hen the point arises in thl ' """^ ^ "»'"P™»d
the prosecution, and hi is LT^ "i ''^ ""^ '-
the court is thereby enabled tTd " "^'^ "'"'''■ »'
o-e; indeed, it is L s:"^ tla tV "^ ^™°' »'
cvd or criminal, where a qnestiont f f T''' '''"^"""
court, the proper course i^f the i . "'""^ ^-^ "'^
evidence on both aide. ,t on e and b ^! '.° '""""^ *«
question." ""' *"'' ">en to determine the
MCISIONS ON THE 6TATMB
pa.ic:,:^rf ::ro„r::dte"^^^ '"^ -■- '"-«
an.endme„,-iJ. v. i?:™';"^ ^^ ^J' -" -' amendan
-of-trrrrvir-^"^^^'^-^^
originally stood, but „r7;' 7""' -""'" " - "
>^«^erth.s statute, an amendment in -thel'Ie of the
1"!
•j(|
■^
ii
El
11::?
936
PBOCEDURE ACT.
!l I
owner of stolon property, by substituting a different owner
than the one alleged, may be made at the trial. — li. v.
Vincent, 2 Den. 464 ; M. v. Senecal, 8 Z. C. J. 287. See
Cornwall v. R. 33 U, C. Q. B. lOG, arid R. v. Jackson,
19 U. a C. P. 280.
In R. \. Welton, 9 Cox, 297, the prisoner was charged
with throwing Annie Welton into the water with intent to
murder her ; there being no proof of the name of the child,
it was held, by Byles, J., that the indictment might be
amended by striking out " Annie Welton " and inserting
'a certain female child whose name is to the juri ;
unknown."
An indictment alleged that a footway led from a turn-
pike-road into the town of Gravesend, but the highway was
a carriage way from the turnpike-road to the top of
Orme House Hill, and from thence to Gravesend it was a
footway, and the nuisance alleged was between the top of
Orme House Hill and Gravesend ; it was held that the
indictment might be amended by substituting a description
of a footway running from Orme House Hill to Gravesend
as this appeared to be the very sort of case for which the
statute provides.— i2. v. Sturge, Z E. & B. 734.
Where an indictment for perjury alleged that the crime
was committed on a trial for burning a ham, and it waa
proved that the actual charge waa one of firing a stack of
barley, it was held that the words stack of barley might be
inserted instead of barn. — R. v. Neville, 6 Cox, 69.
Where the indictment stated that the prisoner had
committed perjury, at the hearing of a sunimons before
the magistrates, charging a woman with being " drunk "
whereas the summons was really for being " drunk and
disorderly," the court held that it had power, under this
statute, to amend the indictment by adding the words " and
disorderly." — R. v. Tymma, 11 Cox, 645.
937
t
PROCEDUBE ACT
Aft an indictment for nftrii,^^ ^ •
been coD>B,ittod at « «ttvl '"'^^T "" »"^8'"' '<• >«».
>» the county of Devor 5f ,T °'""' »*«"• «' '^'verton.
then -r«oUve?dl^':/:" '""''^■"-' «--
keep the peaoe in and for l! , '*"'"' »'"*?"'«' t"
«nd for tUe b„rou;h of TitttoT T'^' "^^ """"8 '»
appeared by the proof thlTh ^ ""^ """"'y- "
for the borough of Zrfon onl T""^"" ""« >■'"«•
the county. VI: J LTd t"" ""' ^''"'"^' '"
■aent by striking out the wn,j T, '""™'* "'o »*<*-
make the avern.e„tt " LI.^' ' "f '"""'J'' »« "« ^
i» and for, and acting in atd L'r-r' "" '"" ""> ^
in the said county;' ^ S>ec„ur '/ °>'8'' of Tiverton,
--^a^jpowerirrirr.-:-^^^^
-ney belonging toTsU^ ""TX td' r^^^""«
property was laid as of -A B . i .v "><l'ctment, the
ing that they were trustees of -thT^t"' ' ffZZ'^'"
indictment might be amended by Mnlfl 1 "^' ""'
tees of."_A V. Marie. 10 ^ 367 ^ "'^ ""'''' "'™-
i. a ^. 287. ' '" ^"«, <i67 ; see JJ. v. SMcM, 8
The description of An o.if «* 1.
may be amended by the „ „?„f "'"^'''•^^■'-''ietment
Wemey. Bell, C. 0^1 """""" "PP^'l-A v.
In an indictment for larot^r,^ «f
banking company, the X'ty ^TlS t'?' "* '^ *
manager of the bank- ff^.K . • T ^ *° ^^ »« the
by a ^int-stocl tVing „S:/ :fr - --d on
o-..epartners/a:d^X^?l:;^:-rir
I!
r
d38
PROCEDURE ACT.
ment was right. — B. v. Pritchard, L. & G, 34, 8 Cox,
461.
But an amendment changing the offence charged to
another offence should not be allowed. Where the pris-
oner was indicted for a statutable felonious forgery, but the
evidence only sustained a forgery at common law, the
prosecutor was not allowed to amend the indictment by
striking out the word " feloniously," and thus convert a
charge of felony into one of misdemeanor. — R. v. Wright,
2 F.ik F. 320.
So upon an indictment for having carnal knowledge of
a girl between ten and twelve years of age, it appearing by
the proof that she was under ten, Maule, J., held that the
indictment could not be amended : R. v. Shott, 3 C. d; K.
206. The offence as charged in this case was a misdemea-
nor; the offence as proved, and as desired to be substi-
tuted by amendment, was a felony, and a felony cannot,
by amendment, be substituted for a misdemeanor ; or vice
verad.-^See R, v. Wright, 2 F. & F. 320.
The words "felonious" or "feloniously," if omitted,
can never be allowed to be inserted : 1 Riiss. 935, note a
by Oreaves. An amendment altering the uature or quality
of the offence charged cannot be allowed.
"When an indictment against two bankrupts alleged that
they embezzled a part of their personal estate to the value
of £10 — to wit, certain bank-notes and certain moneys,
and it rather seemed that the money converted was foreign
money, it was held that " moneys " meant English moneys,
and the court refused to amend the indictment. — R. v.
Davison, 7 Cox, 158. Biit Greaves is of opinion that the
case seems to be one in which an amendment clearly might
have been made. — 3 Ruas. 327.
An indictment alleged that the prisoner pretended that
PSOCEDUKB ACT. 939
he had served a certain order of affiliation on J Bell- but
-:::tx-vrf:::,^taTrc.r^^
it waa not a variance in the name or des SiotT' "
a variant ^ri^he renl^Jr^^ reXr
more general terms of the statute. ^ °
A woman charged with the murder of h.r i,., i, j
described as "A., wife of J. O^ltof " "t ?'
o«lered thi. to be amended b, J^^^t ZZZ
^w^fe.;^nd .nserting the word "widow.-iA , OreZt
"wl'il'nVt: def'T '"' f'"- P-*^-^. the word,
with intent to defraud" are omitted, the indictment!,
had and cannot be amended under this statute f^sh
J., S. V. James, 12 Oox, 127. ^ '
An indictment charged the prisoner with stealing nine-
teen sh,Umgs and sixpence. At the trial, it was obiectod
by he pr,so„er-s counsel that there was no Tse fot!
ev.de„ce showed that if the prisoner was gu Ity o^sttl n^
anything, .t was of stealing a sovereign. 'The'reup I he
cour amended the indictment by striking out the"
nmeteen shUhngs and sixpence." and inserting in iS^
thereof • o.o sovereign." The jury found the prloner
8».lty of stealing a soveieign. ffeld. by the c^rt of
cn,„,na appeal, that the court had power L amend und
Th. I" ,■;■ u' ''"• ^-^- "• e«™W02 Cox. 248
The words " with intent to defraud " allowed tote
.truck out of an indictment. The " merits of The c^se^
mthe above sec. 238 means the justice of the case as C^s
' ( ) i»
940
FROCEDimE AOT.
III!
the' guilt or innocence of the prisoner, and " his defence
on the merits " means a substantial, and not a formal or
technical defect R. v. Cronin, 36 U. C. Q. B. 342.
If an indictment for libel contains merely a general
allegation that the newspaper in which it appeared circu-
lated in the district of Montreal, an amendment for the
purpose of alleging publication in that District of the spe-
cial article complained of is not allowable. — R. v. Hick-
8on, 3 L. N, 139.
244. In making up the record of any conviction or acquittal on
any indictment, it shall be sufficient to copy the indictment with the
plea pleaded thereto, without any formal caption or heading; and the
statement of the arraignment and the proceedings subsequent thereto
shall be entered of record in the same manner as before the passing
of this Act, subject to any «uch alteraitions in the forms of such entry
as are, from time to time, prescribed by any rule or rules of the sup-
erior courts of criminal jurisdiction respectively, which rules shall
also apply to such inferior courts of criminal jurisdiction as are therein
designated.— 32-33 F., c. 29, a. 77.
There is no statutory enactment, in England, corres-
ponding to this one, and there the caption has, yet, to be
entered of record immediately before the indictment, when
the record has to be made up in form.
The record of judicial proceedings in criminal cases is
always, in the first instance, taken down by the clerk of
the court in the way of short entries made upon his docket,
or of indorsements upon papers filed and the like. When
he has to make the extended record, or record proper, resort
is had to these docket entries, to the documents filed, and
to the several indorsements upon them, which serve as
fnemoranda for him. The record, formally made up, is the
history or narration of the proceedings in the case, stat-
ing :
1st. The court before which the indict.uent was found,
and where and when holden.
PSOCEDOBE ACT. j^j
miv r?, ?'"'"' J"™ ^y "horn it wa, fou„d.
Sthly. The appearance or brinoing in of ft,. ^ r .
into court. ° ^ ^ °* ^*^^ defendant
6thly. The arraignment.
7thly. The plea.
loX'J^eT^^^^^
12thly. The sentence.
to S'xsra:;^ j^2r " °^ ^."^^ '^ '-^^ <-
as sections 230 and 231 fee Lm f .? \^°"»^^""=OTd,
take away the ne J^^ rrd"' ir,,"^™?,'™ ^«'
where it could have teen wald ^ ' """' '=^'^''
for™. history of thl^p^LSrieCr 'T"' ""^
The form of the caption is as follows •
JJommion of Canada. 1 T» *u /^
province of Q^bt } "'^ °-''/ Q"een's Bench,
District of Quebec -R,. it . u , ™" ^'''''•
of the Court of Que^, R '''^'"'^'^^. 'hat at a term
gueens Bench, crown side, holdea at the
I n
■ n
942
PROCEDUKE ACT.
I!:
Pi
Ik
iii
city of Quebec, in and for the said district of Quebec, on
*^e day of (the first day of the term,) in
the vear of our Lord upon the oath of (insert the
names of the grand jurors) good and lawful men of the
said district, now here sworn and charged to inquire for
our Sovereign Lady the Queen, and for the body of the
said district, it is presented in the manner following, that
is to say : (this ends the caption.)
Then the record continues to recite the indictment, etc.,
as follows, and by sec. 244 of the Procedure Act, may
commence here :
District of Quebec— (The Jurors for our Lady the Queen,
upon their oath present,) that John Jones, on the rifth day
of June, in the year of our Lord one thousand eight hundred
and seventy, feloniously, wilfully and of his malice afore-
thought, did kill and murder one Patrick Ray, against the
peace of our Lady the Queen, her crown and dignity;
whereupon the sheriff of the aforesaid district is'' com-
manded, that he omit not for any liberty in his bailiwick,
but that he take the said John Jones, if he may 1 o found
in his bailiwick, and him safely keep to answer to the
felony and murder whereof he stands indicted. And after-
wards, to wit, at the same term of the said Court of Queen's
Bench, before the said Court of Queen's Bench, on the said
•• day of , in the said year of our Lord :
here cometh the said John Jones under the custody of
William Brown, Esquire, sheriff of the district aforesaid
(in whose custody in the gaol of the district aforesaid, for
the cause aforesaid, he had been before committed), being
brought to the bar here in his proper person by the said
sheriff, to whom he is here also committed. And he, the
said John Jones, forthwith being demanded concerning the
premises in the said indictment above specified and charged
raooEDCM! ACT.
opon him, how he will amnit v „
J-e i3 mt guilty th, ™ rXh„ 7""/ "'^'•'°^' «"'"■ ««"
general of ouraaid Ladvth.n .^' ^''™^' ^«o™ey
-id Ud, ,he Q„eet"i'; ?S ^TTr ^ "" ™'
fore let a jury thereupon immed « .1 ' '''''• ^^'^-
court of free and lawful mTofT''-7T ^'°'' '^'^ ^^
by whom the truth of the mattir J ''L 1''""' "' «"«•»''.
and who .re „ot of kin to tt Jd ^."^ *? better iu„wn,
n.ze upon their oath whether the said jl° t™"'' '° "'""S"
of the felony in the indictment „t '^°"'' ""^ 8""'^
guilty; because, as well terJdee!rr '■?'"*''* °' ""'
cntes for our said Lady the ol?' u""'' "'>° P'o^^-
said John Jones have p„t tlm, m" '" ""'' '"'"''■ "^ *e
And the jurors of the' iid r^'^^: 7" ^ "'<'j"'>-
purpose impannelled and retuZ t„ . /'* ^°' ""'»
*«fo.;-being called, come, wh™ tip akt/r:!'^ '''
concerning the premises b;i„g oho en t H . ' "^
upon theii- oath, say that the said jZ't •''°' ''"°™'
the felony aforesaid, on him abo ! it . ' " ^"'"^ »''
form aforesaid as b; the saM ;!,.«"'' "" ■°''»"«'- «»d
against him. And^u'^ it ^ ft " f "^'^ "'PP-'»
the said John Jones if he ha^h « forthwith demanded of
w-y the said court iel'l^^^^l'lZT'"''"' '"'"^
verdict aforesaid to proceed l.-T' ' ^^ P^^ses and
nothing further saith'TntlsC'r'f;^""^' '""' ■ -''«
upon, all and sin^ullr the " u'^"'' '''''■ ^here-
uude^tood by th";"tid I'^r: fS ""'T' ^""^
adjudged by the said court here thatl s a jT t"' '"'
taken to the common saol „, tt.^ j _, "'"' '<">«» be
wbonce became, and': t,?r^t:r°^^^
place of execution, on Friday, tte rf" r ""='^ '" "■«
eu^uing, and there be hanged by ^h^n'^ktr h^ be"dl^?
f
944
PROCEDURE ACT.
and the court orders and directs the said execution to be
done on the said John Jones in the manner provided by-
law.
If the defendant against whom an indictment has been
found, happen to be present in court, or in the custody of
the court, he may at once be arraigned upon the indictment
without previous process. — 1 Chit. 338 ; Archhold, 78.
Then the record, when made up, instead of the words
*' whereupon the sheriff of the aforesaid district is com-
manded," etc., as in the above form, must read " Where-
upon, to wit, on the said day of at the
same term of the said Court of Queen's Bench, before the
said Court of Queen's Bench here cometh the said John
Jones under the custody of William Brown, Esquire,
sheriff of the district aforesaid (in whose custody, in the
gaol of the district aforesaid, he stood before committed)," etc.
In the report of the case of Mansell v. R., Dears. S
B. 375, may be seen a lengthy form of a record with all the
proceedings on the challeuges of jurors ; also in M. v. Fox,
10 Cox, 502; Whelan v. R, 28 U. G. Q.B.2; Holloway
y. R., 2 Den. 287 ; and 4 Blackatone, Appendix.
Two important and essential formalities must be remem-
bered in making up a record. 1st. Every adjournment of
the court must appear ; and, 2nd, at each sitting of the court
so adjourned, a special entry must appear of the presence
of the defendant.
In the case of Whelan v. R., cited supra, it was held in
Upper Canada, that if, notwithstanding sec. 244 of the
Procedure Act (sec. 52, ch. 99, Con. Stat. Can.), a formal
caption is prefixed to the indictment, this caption may be
rejected, if it proves defecti'o.
lr\ R.Y. Aylett, & A. & E. 247, and R. v. Marsh, 6 A.
<fc E. 236, it was held that it is not necessary to name the
grand jurors in the caption.
243.
or otherv
any matt
words "a
arms," or
the wonis
"again 8 t]
words or «
the indictn
app«Jlatior
fiction in t
t'ng to 8tat(
where tir^t
time iniperfi
on a daj- eui
information,
—norjor wn
thing, or tf^
such value, p
offence,— nor
court appears
offeiice.--32-3
This clau
of the Impel
in the Iinpe
See ffeym
^ox, 31 as t(
by verdict.
Verdict wii;
and total omis
diet.— i2. V. I
No amendm
Gox, 588.
In an indicti
niitted in a cer
*ROCEDUKE ACT.
"'eanor. whether aS vT, *"^ '"dicfment for anv M
or otherwise, «han k1 / ^ "' «'• «»Uawrv or h ^ °"^ ^'^ ""'^de
r«>" or orXe ^or Js ilr"''' °^ «^ ^^e "or /.t.-'- of the
the wonla " a<.ain,f VJ /^*'"'' '"'« Peace » nnr 7 T "' '^°^'^« «nd
"*?«'•»« the for 'or i '"""^ «^ 'h« tatu te " t f''' '"'' '"«^'-"«n of
^^d'^orZ2yil'''''^''''''"orvicev^^^ ^^ the word'
;ppe'iation,t:j-tir^;. ^ -- o" o^: rx:7''-^^ ^^
faction in theaddifinl T ^^^ "^'^e, nor for,.7 v T "^^^cripfive
''■"g to state t^e t^r f ?^ '^^'^'^^«"' «r l.r «! '^^ '' «"^ ^■'^^^-
time imperfectlvnn r ' "'''"«« «^ the offelT ""^ '" ^''^^ case
information, or ol ar. ^^'"° ^^ ^''^ indictm *? committed
such value, price T! ^'^"'""Sfe, injury or snnfl T ^ "^ "*«"«• or
court appears by^L7"*. ^^ * P^oper or perrtlt^ "'''^^^ ''-^ ''^<'
This clause i^ foi-^ i.
of *e Imperial StatC ^ "'/ ''^''- ^^- - 64, s 20
See ffeymann v. i? i o ^ „
'^». 31 as to aide, by vtrdfel f I'"' ^^ '■ ''^'^kt. U
by verdict. ^ "''*'" »'' what defect, are cured
Verdict will „„i„ „,,.„,, ^.
No amendment allowed »(»?•
te, 588. "°"'^'* ^^'-^ verdict._JJ. v. Oliver 13
( *
-; f
946
PROCEDURE ACT.
I '
" of the Township of Kingsey, in the distiictof Arthabaska,
«' trader, and Thomas Ling, of the same place, farmer, was
" defendant." The omission of the words was plaintiff in
the description of the plaintiff held fatal, and conviction
quashed.— i2. v. Ling, 5 Q. L. R. 359; 2 L. N. 410.
In an indictment for obstructing an officer of excise under
27-38 v., c. 3 ; Held — that the omission in the indictment of
the averment that at the time of the obstruction the officer
was acting in the discharge of his duty under the authority
of the said statute was not a defect of substance, but a for-
mal error, which was cured by the verdict.— ^Sfpe^wan v
R., 13 L. G. J. 154.
The defendant was indicted in the District of Beaubar-
nois for perjury committed in the District of Montreal, but
there was no averment in the indictment that he had been
apprehended or that he was in custody in the District of
Beauharnois at the time of finding the indictment.— J/e/f^
bad, even after verdict.— J?, v. Lynch, 20 L. C. J. 187 • 7
R. L. 553.
A defect such as the omission of the word " company ''
in an indictment for embezzling money from the Grand
Trunk liailway Company of Canada, is cured by verdict.
— R. v. Foreman, 1 L. C. L. J. 70.
Defect in an indictment cured after verdict.— iJ. v.
Stansfield, 8 L. N. 123 ; also in R. v. Stroulger, 16
Cox, 85.
An indictment too vague and too general in its language
is not cured by verdict.— White v. R., 13 Coa; 318. "^
246. Judgment, after verdict upon an indictment for an v felony
or misdemeanor, shall not be stayed or reversed for waut ofa similiter,
—nor by reason that the jury process has been awarded to a wrong
officer, upon an insufficient suggestion,— nor for any misnoineror
niisdeecription of the officer returning such process, or of any of the
jurors,— nor because any leieoo has served upon the jury who was
not re
offenc
greate
after v
of the
althoui
one offt
PROCEDURE ACT.
notreturnnl aaajurort ' ^'^^
mmssmm
Under it. the first defea curtd Tv ^T '" *"'*«
of a similiter. The similiter i^X i ^ T'*"' '^ ""^ ^'"^
taned,intherecorf(see,„Tfe „iJ°' ''"' ™««' ""n-
of a record) in these loX .'I^t' '^""™ 244 for f„rm
for our said Lady the Queen in ,^° "iTV *•"> Prosecutes
. The second defeet oureT "y v ^t ^''''* '''^ ''■^^■'
'! .*<' ^«ngful award of the jury n™ " '^' """^o
flcient suggestion. The jurv S "P™ ''° i"'"?-
to the sheriif, but if one It fhT'' " """"^ *«^'='<"1
the sheriff is interested, or of ^L^ "'P"''"" ">at
i" any way disqualified to act in t!" ""^ °^"'' P*'*'^'' or
153,forgrounds.againstsh rff ofLr ^'^^ ^'^'"""^■
an entry of this suggestion is Cde o^^f 't *» -"y).
md.ctment first, and then „„ T ^ '""='' of the
»P Wily ; aid then the jurt ::r""': "'"'' " " '»'«'«
coroner, if „ot disqualified and^H ■"/"'"'''' '» "'"
elisors named by the couri » V ''''1'"»'«e'l, then to two
tko return is fiV^. and rtbT"' " "'''°'' '-' «««
allowed; ^.^, „„;„ J^ "54 1 c*? .'?/'"' ^™^ «
law Lexicon, Verbo "olLtB-'- \ ^.' ,1^' ^^'■'on,
above clause, these forme's canlf ' ''*■ ^^ *«
investigated after verdict and! "" l-e^^oned or
'ion of the officer ..rrnin/the ■'°"'" " '''^''«^™P-
>- can invalidate th:r4^1|~"' 7 °^ *»
^^-.ause says thlMIy that no rot^t:rl,„,
'f-;-
11 ti
948
moCEDURF, ACT.
judgment or writ of error will avail on the ground that
any person has served upon the jury who was not returned
as a jur or by the sheriff or other officer. — See Doveyy.
Hohaon, 2 Marsh. 154.
The fourth and most important part of this sec ion of
the Procedure Act consists in the words : " And where
the offence charged is an offence created by any Uatute,
or subjected to a greater degree of punishment by any
statute, the indictment shall, after verdict, be held suffi-
cient, if it describes the offence in the words of
the statute creating the offence, or prescribing the
punishment, although they be disjunctively stated or
appear to include more than one offence, or otherwise."
What is the meaning of these two last words " or other-
wise," is not clear. "Although they be disjunctively
stated " means " although the words be disjunctively
stated " "as unlawfully or maliciously " instead of " iin-
lawfully and maliciously."
The words " or appear to include more than one offence"
are not new law : see B. v. Ferguson, 1 Dears. 427 ; R. v.
Heywood, L. d; C. 4:51 ; Archbold, 69 ] and, remarks under
section 105, p. 715, ante; also R. v. Davies, 5 Cox, 328,
The M'ords " subjected to a greater degree of punish-
ment " mean greater than it was at common law, as for
instance, in s; 38 of c. 162, p. 197, ante.
The following decisions on the interpretation of the
part of this clause rendering valid, after verdict, indict-
ments describiri!]f the offence in the v^ords of the statute
creating it, or subjecting it to a greater degree of punish-
ment, may be usefully inserted here.
In R. v. Larkin, Bears. 365, it was held that if an
indictment charging a felonious receiving of stolen goods,
does not aver that the prisoner knew the goods to have
been
by v<
An
curing
repres
out or
sentati
havinf>
ground
10 Cox
Inii
for hav;
sufficiei
were, a
indiotm(
creating
After
of an int
ments in
If, bef
for obtaii
who was
been unl
verdict, a
Procedure
of error, v
653 ; Sill
481.
In R. ^
obtaining 1
" knowinor}
conviction
T^ords of th
An indiotment under 14.1 'i v
o-nng the defilement of a .irl CV ' '' *^' '''" P"-""
representations ot other fm„,i, , . ^ P-^'ences, folse
out or allege what ^e^ tt^rLT'^- "" »"' -'
--.a^.e.nXtjrt:rtr;:.-
In ie. V. Warahaner, I Wo„. o o ARR ■ .■
for having unlawfuUy in posse^.vT,; ^ 5 "" '"'•'ctment
»ufflcient after verdict, thouTZ i^™:^°"»». «""> Leld
>"ere. and their value, it feij! 'f "^ "'"" ^o""'
;odiot„ent de.riM the o.encefu the"3s 71 ZJ!:
or'ntiiZf :^ arettrr"^' '" *« -nd eount
ments in the firsteount-ft „ ft"™ *" '"'""'"'t aver-
!<: before e. 1.2 of the ^;.:d„r:r?„' ""'V'"-
for obtaming property by faUe p^tenla it dM "'"""'
who was the owner of ,!,„ '^ "'"''■ " d'd not appear
beon unlawfully obTai L hrrel " ^'^^^^ '" '"-
verdict, and notwitbstandiL ^the at T °°' "'""' "^
Prooedure Aet, in auch a "ca ato til? ''' " "-
of error, would have been quashed ""'"'"''■ "I'O" '• w.it
f 3; mi V. iJ. 7)»™.T32 1~\'- '."«'"*■ ^-'-.
481. -^^^ , -«. V. Martin, 8 ^1 ,e- ^.
Jii ^- V. Bowen, 13 O. 7? -too fi • ,.
obUiuingby faU„ pretences and dd' '"""'"" "^» f"'
■'Koowiugly. with' unlal L;'!;'!^'"""'" "■" ->'d
couviction good after verclict a, th, ™'"'' '"-'''^ "'«
worfs of the statute. JsLl» '" o'"°'" "'" "' "«
'I
P
OaO
PROCEDURE ACT.
IJut an indictment for felony must always allege that
the act vvhicii forms the subject matter of the indictment
was done feloniously ; if an indictment for fehmy does not
Contain the word " feloniously," it ia bad, thouj^h in the
words of the statute creating the offence, and is not cured
by verdict — U. v. Gray, L, & C. 365.
1 f an indictment under sec. 83 oithe Larceny Act, c. Ifi4,
p. 444, ante, alleges the goods to have been " unlawfully
obtained, taken, and carried away, and that the receiver
knew them to have been unlawfully obtained" instead of
" unlawfully obtained by false pretences^' the indictment
is bad and not cured by verdict. See R. v. WiUon, 2 Moo
V. a 52.
An indictment under the same section charged that de-
fendant " unlawfully did receive goods which had been un-
lawfully, aud knowingly, and fraudulently obtained by false
pretences with intent to defraud, as in this count before
mentioned," but omitting to set out what the particular
false pretences were. Held, that the objection, if at
any time valid, was cured by the verdict of guilty. R. v.
Oof' /smith, 12 Cox, 479.
Would an indictment for obtaining property by false
pretences, not setting out the false pretences, be good after
verdict ?
In R. V. Ooldsmith, 12 Cox, 483, Chief Justice Bovill
said: "I am not aware whether the question has
been raised after verdict since the passing of the Statute of
7-8 Geo. IV., c. 64." (sec. 246 of our Procedure Act.)
Section 278, post, enacts that the forms given vill
be sufficient, and the form given for obtaining by false pre-
tences does not state what are the false pretences. It is,
however, doubtful notwithstanding the form given with the
Procedure Act, if, before verdict, such an indictment would
be sufficient, if not alleging what are the false pretences.
Bu
at con
Act, b
Cox, 4
V. R.,
is on fi
Ini
dictme
words
though
Procedi
which t
Inii
prisonei
under si
"And t
further ]
and yea
unlavvfu
murder.'
The pi
said seco
void, and
crime th(
ted with
Deery."
held that
of the ind
There s
indictmen
said sectio
for wounc
intent to (
PROOEUUHK ACT.
But, after v,»-dUl, it wo.ild seem to bo <,,,« • . ,
at common U.v, auj „„a„r motion air f f""!"'''!!. both
Act, by ,1.0 „mark, of the /uC" f^° "[ ' ^ , f^™''"™
P"-. 482; A V. WatUnson. U Cox 2^1 ft'"'^' ^'
is on Another stat.ite. ' *^"*' ®*' "''"'' ««'«•
In ij. V. Carr, 26 L f! .T «i .u
diotm,;„t on the ground of ■./ °"'"'""''"='' """"»-
wo«ls ••fe.oniouar wl,y*::;''T™ '""""" •"' ""
thought," though L formlenin . " k"";"" "'""-
Procedure Act for the oHence' r at ^ t\h T "' ""
which the prisoner was indicU^ ,!,„'[ «!' ^'', '""''"
In A V. Deer;;. 26 Z C / 12Q ,. "'" """''''•
prisoner guilty „„ a, fo l„wi„; col !f ^7^ 'T"" *«
under sec. 10, c. 20, 32-33 Vio^rs Lo" 'I'fr""^"''
"And the jur„« „f„osaid, VtuL'tuV'-T'^''
further present that the said Corn!^^: Decry rr:* ,""
and year aforesaid, one Alfred R„,„ . / ?' "^'^
unlawfully did wound wiM. f T '^^""'""^^y and
mui-der." ' '"' ""*"' "'^'^^y then to commit
void, aud doc not lit oTe " oT""" ■"^^'' '""■'"'^
crime therein ohargedt „ t I:d rCT"" " '"'
ted with the™„fe a/o...Ao«,Aro;«,e sarr^r'-
of *e iudictment 4"!d1ot!r«t;:t^Lrter
inirerTit':u;rT-^°''''''^ "'■^•°""- ^^ '™-'
said section 10 :f:.To"'sv;ir:T6r' r- ''"
;orjo..ndiu, With intent to rnl^t, t vl^JV^S!
intent to commit muixJer " generallv with, f
Ktjuerauy without naming the
! .( t 1 . •«
952
PROCEDURE ACT.
person intended by the prisoner, or if his name is not
known, alleging "a person to the jurors unknown ?"
Chief Justice Jervis, in R. v. Lallement, 6 Cox 204, said
that, after verdiot, he had no doubt that " with intent to
commit murder " would be s iffioient, being the words of
the statute, but doubted if such an indictment could not
be successfully demurred to.
And Greaves, 1 Rilss. 1003, note g, and 1004, noteh,
says that it is questionable whether such an indictment is
sufficient, even after verdict, relying on R. v. Mar^'n, 8
A. d; E. 481, to say that in many cases it is not suffi-
cient, even after verdict, to follow the words of the sta-
tute. Against this opinion, the case of R. v. Ryan, 2
M. & Roh. 213, can be cited, where an indictment alleging
" with intent to commit murder " generally was prepared,
under the express direction of the court, and the prisoner
tried and convicted.
Then, the forms of indictment given in Archbold, under
sec. 11, 24-25 V., c. 100, and the following sections, all
contain a count, averring " with intent to commit mur-
der. " The question seems unsettled so far, and it will
be prudent, in all such indictments, to avoid such a count
as much as possible.
In R. V. Carr, 20 L. C. J. 61, the indictment was in
the following terms ;
"The jurors for our Lady the Queen, upon their oath,
present that John Carr, on the twentieth day of June, in
the year of our Lord one thousand eight hundred and
seventy-one, in the parish of St. Colomb de Sillery, in the
district of Quebec, did feloniously wound Lawrence Byrne,
with intent then and there to murder the said Lawrence
Byrne, 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."
PBOCEDURE ACT.
the .aid JoL„l,L'^?f*8'^»d "barged against
i^ the said John Oarr i/r'^V^'^ ""'"toent, that
B^,.o.he.aUeea^.X„r,-t,?d"r
The presiding judge having reserved ih.
of Queen'8 Bench held that fh. 7. ^^'^' *^^ ^lourt
on the ground taken by the prtV'^r ^'' ^^^^«^-«»
not cured by verdict ^ ' '"^ '^^^ ^^« ^^^^et was
C::ii:dtrr.^ X t 'i-^ - ^- ^-
" with intent to commit ^.ZZ^^:XTr' "'■'"''
express words ox .he statute, whilst ,nff^' ^ "^ '" ""'
ment of the intent was no " to 1 ^ C'""' the aver
woKis of the statute, but "with ""' """^'"■" '" «>e
Lawrence Byrne " To • Z!"'™"" "'"■^<'' "•« «aid
mit the crime i::own!: lawT" ^"1"" ""^^"^ "> -"-
m and munler," whilst ol 1 !■ "" aforethought to
the defendant murdered wL " . '"'°' "''"8'°g 'hat
thought," the def;„d!„;,!r^'"^"°f'»»''<='^ afore.
*4.ter.-l l:t^ Zte ^"""'"^' °f --
for burglary, if the indi^'trnt/ '" *° '■""etment
did fe Jni„u\ and b SyTak'''?''' ''^'™*'"'
with intent to commit murder^t i, 1 '^ '"'<"'
averment as to the intent r!? ""'""" ' *''"^' 'f 'he
it must state "wtMnlfff "'I '"""''' P*'"""'"'
aforethought, to M an"! teTIif '' *f ^f""-'-
Mop, Cr. Proa. 82 145 ^' "^^ '^^ N-" See 2
"h^trrt: r^zir d-L^Tr ^-^ "-^
niously and of his malice afor^Z f. .. "'""'8'' "f'^"'"-
the indictment in c"r wT^ ^''' ""■ *°'"«1 '• "hut if
^^arr s case had averred '■ feloniously did
954
PROCEDURE ACT.
wound with intent then and there feloniously and of his
malice aforethought to murder," it would certainly not have
been open to the objection taken ; and the forms given in
Archbold are " feloniously and unlawfully did wound with
intent to commit murder," whilst if the person the prisoner
intended to murder is known, the form is " feloniously and
unlawfully did wound with intent, thereby then feloniously,
wilfully and of his malice aforethought, the said J. N. to
kill and murder." ^
There is a difference between an indictment which is bad
for charging an act which as laid is no crime, and an indict-
ment which is bad for charging a crime defectively. The
latter maybe aided by verdict, the former cannot. — R. v.
Waters, 1 Den., 356. See also, ante, remarks under section
14^3 of the Procedure Act.
When an indictment is quashed or judgment upon it
arrested for insufficiency or illegality thereof, the court will
order that a new indictment be preferred against the pris-
oner, and may detain the prisoner in custody therefor. — 1
Bislwp, Cr. Proced. 739 ; 2 Hale, 237 : 2 Hawkins, 514 ;
Jt. V. Turner, 1 Moo. C. C. 239. — See Greaves' note in 3
Russ, 321 ; ante, under sec. 238-243.
In R. V. Vandercomh, 2 Leach 708, the jury, by the
direction of the court, acquitted the prisoners, as the charge
as laid against them had not been proved ; but as it result-
ed from the evidence adduced that another offence had been
committed by the prisoners, and as the grand jury were
not discharged, the prisoners were detained in custody, in
order to have another indictment preferred against them.
In R. V. Semple, 1 Leach, 420, the court quashed the
indictment, upon motion of the prisoner, upon the ground
of informality, but ordered the prisoner to be detained
till the next session. See, also, 1 Chit. 304.
>l
PROCEDURE ACT. nr^
a. little ueiay, tor the judgment is thnf fV,« • j- .
ment be q„a,hed. .„d the defendant Iml^ T ''
>n custody until another accusatio,?L k ""*
against him, except, of co^r « wW th ^ ^"''""'^
established that the defenrnrh'..! "'°™' ''»"
offence whatsoever i„ wWch "t ''°"""'"** ^"^ '•'«»1
discharged fro»r;t:;"ir « «2 """ "^ ''""«^*^'
defective, the prisoner shn,M h V . ^ feP'^gnant and
that as the obje^tirje:* ^ "^ Zt^J'T '.'^;-
ment» and not to the merits of th. .1 ' '"''"='-
be remanded to priso„T„mh ndTthf '™°"" *™"
the prosecutor an opportunit;irh„tht ir^f' w'^
»g anofter and be.t. indictment against U^' °s^"^^
M. V. Pelfryman, 2 Leach, 563. ' '
in Archbold, msQ 166 if ia c,o;;i tt
of the verdict, IfZ drnd:„t;eTherebXtd^"T
merits, he is forever free and discharJed fromZf ""
tion. and is entitled to be immediately letll N w' ^^T'
An indictment havinw bppn hoU k.j j
quashed so thatanothe M lent mthT, 7"' " ™
that defendants be discharged ff t ^"'''"'"'' "<"
B. 181. «'«o"arged._& v. Tiemei,, 29 P. 0. Q,
In A V. fi«i™,^, Montreal, A^, 1881, though the
Sif!l,-;i ■ . I
956
PBOCEDURE ACT.
indictment had been quashed on demurrer, the court refused
to liberate the prisoner, and ordered his detention till the
following term.
In M. V. Woodhall, 12 Cox, 240, the venlict was held to
be illegal, but the prisoners were bound over to appear at a
future session.
247. No omission to observe the directions contained in any Act
88 respects the qualification, selection, ballotting or distribution of
jurors, the preparation of the jurors book, the selecting of jury lists
the drafting panels from the jury lists or the striking of special juries!
shall be a ground for impeaching any verdict, or shall be allowed for
error upon any writ of error or appeal to be brought upon any jud?-
ment rendered in any criminal case C. S. U. C, c. 31, *. 139.
This is a statute of Upper Canada extended to all the
Dominion. This clause does not take away the right of
challenging the array.
A conviction, not by a special jury, in cases where the
statute enacts that an offence shall be tried by a special
jury, is a nullity.— ij. v. Kerr, 26 U. C. C. P. 214.
COSTS.
248. When any person is convicted on any indictment of any
assault, whether with or without battery and wounding, or either of
them, such person may, if the court thinks fit, in addition to any
sentence wh.ch the court deems proper for the offfence, be adjudged to
pay to the prosecutor his actual and necessary costs and expenL of
the prosecution, and such moderate allowance for loss of time as tlip
court, by affidavit or other inquiry and examination, ascertains to be
offender shall be liable to imprisonment for any term not exceed i„.
three months, in addition to the term of imprisonment, if any, to
24 25 r '" '^"'^"''^'^ '^' ^^^ offence. -32-33 V., c. 20, / 73.
Oreavea' J^ote.— This and the following clause are new
m England ; they are taken from the 10 Geo. 4, c. 34, ss.
33, 34 (I.). It had long been the practice in England in
PKOCEDUKE ACT.
such cases for the courfQ oP. ^^'^
to allow co„,pron.ises to be ^^7^'''°" '" ^° ^««^-lt,
«uch compromises were 1^ n ^^ ^'^ P^^^^««' ^^d
Bast, 46; iT.^ , Z. J:'%^^^^^^3 ^ ^-^>^^. U
Such compromises were usuallv\n ^ u^' ^ ^- ^- 371.
paying a sum of money to h!"^ "^' ^^ '^' defendant
for his expenses; but Cre 1'^"'"' '' ^'^"^"^^ ^^-^
dant, it frequently happened tW "^'^ '" ^^^^^^^^^ ^efen-
ef^cted,andthecLrtr:o:X:r^^^^^^^ ^^"^^ ^«
position. These clauses placeT^n .. ''^ "'^ ^"^^^i«"«
to do full justice, without LXTh! -T'' '' '^' ''^^
either party. ^ "^ ^° *^^ ^i«tes or consent of
See next section.
249. The court may, by warranf in v
60 awarded, to be levied by distress !n^ T*"^' "''^''' «"«^ «»'» as is
or the Offender, and paid t'o TeZZilo::''^^^ ^^ods and ohauj
an8.ng from such sale, to the owner andTf' k"'' '""'P^^'' '^ a»y.
offender shall be released from such' , '"''* '""^ '« «« 'evied. the
s. 79. 24-25 r., c. 100, ,. 75?!^' ""P"««"'nent.-^2.33 V., c. 20
3^j 36 of O.ZB, „/.■.. ~7/^-ecti„. ,,.
rally to any conviction for assault i„ iT ' "'^ S""'^-
»««. 191 0/ (;„ Procedure Z "« """'^ """^^
liESTITUTION OF STo™ P^P^KTr.
^OO. If any person who is srnWi^ ^e
in stealing, taking, obtaining, elcto ni„ ' ?;!/^'T '•* '""^'^^'^eanor.
convertmg or disposing of, «; ifk ofv'inX ''"=' appropriating
money valuable security, or other ^op^f/^r""'" "^"^ ^'-«^^
for .uch offence, by or on behalf of tK„t^^^"^^^^' '« indicted
executor or adu.inistrator, and conVic Ld t,er . \' "'"P"'^' ^ ^'^
be restored to the owner or his represeltative ' ''' "^^^"'^ «''«»
.ra„;eZ;:^:^n^^-:^^-ewhom..
-.t.e, writs Of restitution .rS^e^:::-f^
Ill
968
PJROCEDUitE ACT.
restitution thereof in a summary manner; and the court may also, if
it sees fit, award restitution of the property taken from the prosecutor,
or any witness Jot the prosecution, by such felony or misdemeanm',
although the person indicted is not convicted thereof, ij the jury
declares, as it may do, that such property belongs to such prosecutor
or witness, and that he was unlawfully deprived of it by su^h felony or
misdemeanor :
3. If it appears before any award or order is made, that any valuable
security has been bondfidepa.\d or discharged by any person liable to
the payment thereof, or being a negotiable inptrument, has been bond
fide taken or received by transfer or delivery, by any person, for a just
and valuable consideration, without any notice or without any
reasonable cause to suspect tiiat the same had, by any felony or mis-
demeanor, been stolen, taken, obtained, extorted, embezzled, con-
verted or disponed of, the court shall not award or order the restitution
of such security :
4. 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 possession of goods or documents of
title to goods, for any misdemeanor under <' The Larceny ^c<."— 32-33
F, c. 21, s. 113. 24-25 V., c. 96, s. 100, 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
within it." — 2 Muss. 355, note. 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 select com-
mittee of the Commons. — Greaves' Cons. Acts.
The prisoners were convicted of feloniously stealing cer-
tain property. The judge who presided at the trial made
an order, directing that property found in the possession 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 direct the disposal of chattels
in the possession of a convicted felon, not belonging to the
prosecutor, — R. v Pierce, Bell C. G. 235. R. v. Cor-
por. of London, E. ii. <i& E. 509.
'5i
i VI^'P'
PROCEDURE ACT. ggg
" Co.. 318, it waa held tha^ h^pj^nt JV^'""*^^'
to cases of false pretences as well as W "" "^P"'''
feet that the prisoner parted "th a 7' ^"<' *" *«
pawnee did not disentSX'tn;, ^°°'' '° " '"'"'^
tion of the goods._See 2 ^Z 355 °"' *" "'^ '«'''«"
the prosecution, in fvhtsTh XrveTit t\ 'T' "
Z "'<-- of property :«eeived by a pe sonL " ' '"^
have been stolen or obtained by fa W ° ™^ " '»
orders strictly limited to property ^ '^r^'"/''' ''"' *«
as being the subject of the har'l t f " "' *^ '""'
extend U> property in the pois^' o^""'°"^ " <>«' »ot
sons which was not produrdTn ","'='"' ">'■'<' P"-
being the subject of Te tdfct^nt "i"'^' ^""' '™' -
Cox, 594. cTO.ent.— ij. y. Goldsmith, 12
An order of restitution of Dr,mB,.t„ t ,
only to such property as is Z^Tl^ '^'"' *"' ""'tend
cou,.„ of the trfal, and Tto t l""^ "'""«'^ "' *he
the indictment, u^Ie's so "r^ '' '''' "^"«'^« ■'^'"^d in
the possession f th elrt ^'f'l'^'^-^ identified and in
It was held, on this Tw*^^' ^'"''*' .^^ f-. ^97.
23,; that the court will notle t oi^"' ^l ^^ ''■ •"■
tp of stolen go«,s, whereat,: TC^l^l T "f "
of a dispute in the civil courts T S " ^"^""'^
Cox. 216. ""^- ^ee -R- V. jlTacHm, 5
Eestitution can be ordered tn ti.
•Tones, 14 Co,,. 528. '" °'"^' ""'y— «■ v,
See 1 fl-„fe. 543. 4 i!;««fofo„,, 353,
960
PROCEDURE AC5T.
Iff'
letters were dated 37 Wood street, and signed A. Blenkam
& Co. in such a way as to look like "A. Blenkiron & Co.''
there being an old established firm of Blenkiron & Sons, at
123 Wood street. One of the plaintiffs knew something of
that firm, and the plaintiffs entered into a correspondence
■with Blenkarn, and ultimately supplied the goods ordered,
addressing them to " A. Blenkiron & Co., 37 Wood street."
The fraud having been discovered, Blenkarn was indicted
and convicted for obtaining goods by falsely pretending that
he was Blenkiron & Sons.
Before the conviction the defendant had purchased some
of the goods bond fide of Blenkarn without notice of the
fraud, and resold them to other persons. The plaintiffs
having brought an action for the conversion of the goods :
Held, that the plaintiffs intended to deal with Blenkiron &
Sons, and therefore there was no contract with Blenkarn :
that the property of the goods never passed from {\\q plain-
tiffs ; and that they were accordingly entitled to recover
in the action. — Lindsay v. Gundy, 2 Q. B. D. 976 ; 13
Cox, 583.
The plaintiff had stolen money cf tne defendant, and had
been prosecuted for it, but acquitted on a technical ground.
The plaintiff had, previously to the prosecution, converted
the money into goods, yhich were now in the possession
of the defendant as being the proceeds of the money stolen
from him by the plaintiff. The plaintiff brought an action
to claim the said goods. Held, that he had no right of
action, — Cattley v. Loundes, 34 W.R, 139.
A thief s money in the hands of the police after his con-
viction is not a debt of the police to the thief, and cannot
be attached under garnishee proceedings. — Bice v. Jarvis,
49 J. P. 264.
Under this section the court can order the restitution
of ti
fielve
of ai
tices,
claus(
not t
clause
A ]
sold s]
also in
Eestiti
been si
M. >
acquitti
person
cutor re
enacts
may, if
it clearl
When a
trousers,
$5 note, I
Prisoner
the polic
counted t
a $5 ban!
Held, i
the notes
granted.—
251. Wli
otherwise, oi
unlawfully
evidence, tin
person who h
PBOCEDURE ACT
"." j;r;re:rirH"'^; °'«-» -- -^^■
of an agent wl hoWsTh ^ t'^h^' "?^ »"-'"<-
clause of the Pr«.ed„re Act ?J ^ J'" '"'^'P^toUon
not the extensive meamj gil^Tt'^^'*"^" h-
clause of the Xoroenj, ^ct; ^ 'iterpretation
A man was convictsd nf .» v
sold since in n.ar].et o:« :„Vhtd ,"* ""''' ""* >■« "ad
also in marJcet overt th^ ™li! r''°" ''""^diately
Eestitution orde,.d to L''""^:;"! ''^'"g « goed faith"^
^™ stolen.-iJ. V. .ffo„„ fj^°» '^™"' »hom they had
M. was indicted for atedinf 895 l^t T'
acquitted. He applied to have S37i ^"^ °°'^'' «■«»
person when arrested, returned to 1,, .'■ ^""""^ <"> "^
cutor resisted. The statute of P E fi w '!'' "'" P™^'"
enacts that ■■ when a prisoner h „„," ' °- ^^' =• 38,
may, if it sees iit, order r ti ; n tT™'''' *^ ™"'
It dearly appears to have b^en ,M /"'P^'^^ ""'''^
When arrested prisoner had the 1 "" ""' °""«'-
trouper,, and among the note, wasaTs 7t T' "" '" "^
«5 note, bank of Halifax 1 a « f . ^' "'""'^ "^ ^- »••
Prisoner said he put he monevt '"'""' ^°''"^'"-
the police. ProseLtor had TZ 1" ht ."t '' ^«'-
counted the money before the robbl Al^*'' •^"^''"''•>'
a »5 bank of N. B. note and „ «.T', "'' '^t it included
BeKl, that the e^Mt^l to^"^ "^H«'^- «ote.
the notes as the prosecutor's,r„d the '',"■""" '" ''^^""'■y
fill'
Fiif-
rW
ijljj
962
PROCEDURE ACT.
J
f
and that money has been taken from the pi > -toner on hie apprehension,
tlie court may, on tlie application of such purchaser and on restitu-
tion of tlie property to its owner, order that out of the money so taken
from the priMoner, a sum not exceeding the amount of the proceeds of
the sale be delivered to Huch purchaser.— 32-33 F., c. 21, a. 114. 30-
31 F., c. 35, a. 9, Imp.
The English Act does not, expressly, provide h^ the cor-
responding clause, for cases of obtaining by false pretences.
The section provides for the sale only of the stolen pro-
perty. E. V. Stanclijfe, 11 Cox, 318, mpra, would not be
affected by it.
See II. V. Roberta, 12 Cox, 574.
INSANE PRISONERS.
262. Whenever it i'" given in evidence upon the trial of any person
charge;! with any olFence, whether the same is treason, felony or mis.
demeanor, (hat nuch person was insane at the time of the commission
of such offence, and such person is acquitted, thejury shall be required
to find, specially, wliether such person was insane at the time of tlie
commission of such offence, and to declare whether he is acquitted by
it on account of such insanity; and if it finds that such person was
insane at the time of coininitting such offence, the court before which
such trial is had shall order such person to be kept in strict custody
in such place and in such manner as to tlit> court seems fit, until the
pleasure of the Lieutenant Governor is known.— 32-33 F., c 29, s, 99.
253. The Lieutenant Governor of the Province in which the
case arises may, thereupon, make such order for the safe custody of
such person during his plea -lire, in such place and in such manner
aa to him seemt^ fit.— 32-33 F., c. 29, s. 100.
254. If any person, before the passing of this Act, wliether before
or after the first day of July, one thousand eighi hundred and sixty-
seven, was acquitted of any such offence on the ground of insanity at
the time of the commission thereof, and lias been detained in custody
as a dangerous person by order of the court before which such pereon
was tried, and still remains in custody, the Lieutenant Governor ma?
make a like order for the safe custody of such person during pleasure.
—32-33 F., c. 29, s. 101. 40 F., c. 26, s. 7.
255. If any person indicted for any offence is insane, and upon
arraignment is so found by a jury empanelled for that purpose, 80
PROCEDUIIE ACT.
that such person cannot Kp ♦ • . ^^^
the trial of any person «o in., I'h "^1. «"«'' •-'''otment. or if. „po„
charged with the i.Kiictme,/to Vi ^'""" ''P''^'"" ^ "'« J^ry
Buch person in brought to h ' ,"""' "'« "o^rt, lutWe wl.i 'h
direct such ti„,i„«t\: r^^S'": ^^ T ^^''^^ ^ "--id::'..';'
person to be kept i„ strict custl "til 7"^" ""'^ ''•'^«'- «"«h
tenant Governor is known.-32-3rK c 20 ''\^1'^'^'' -^ the Lieu-
own Ti- "' ' "• ''2.
^OO. If any person charged with «n «
court to be dlHcharged forTan tTirT" ''•^"«''' ^^^-^^
appears to be insa,,o, the court si alTonW^^^^ and such person
try the san.ty ofsuch person , and if th' ■"""'' '" ^"^ ^""P''"^"U-i to
insane the court shall order «uch lit "oV?'"P«"^'^'-' ""^^ '"'"
in .uch place and in such mannerTs to fh! '^' '" '''''' «"«'^3'.
pleasure of the Lieutenant Ooverno: s knoMnTaV'T ''• -''' ^'-
357. In all cases of ins "t ''"^'^"- ~32-33 V., c.29,s. 103.
may n.ake such order for th"e Lft c'rod '''f ^'^»*«"«"t Governor
person so found to be insane, in such n Ip^ ."• '"^ ^^'^'''''' «f the
h.m seems flt.-32.33 K, c. 29M04 ' '" '"'^ •"""•^" as to
258. The Lieutenant Governor ..nnn= u .,
of any person ....prisoned for aro2e""'^^"«««'''he insanity
tody charged with an offence, or ?f" ''fJ^'''-'--' ^r safe c us.
good behavior or to keep the ^eace L r? "" ""' ^"'^'"^ bail for
ders sufficient, may orSer tlfe rem^v* of ?'"' ^'^^'''""^^ ««"«'•■
pace Of safe keeping; and auch person ha,I- '"T P'^^«" '^ -
other place of safe keeping, as the L et te "nt 00"" ""'''' ^^ '" «"«'^
t.n,e orders, until his complete or nart r " "'''' '■™"' '""^ to
«at.Hfaction of the Lieutenant Q^Cr l]T"' ". '^'"''^^'^ ^^^ ''-
.neane person back to imprisonn.ent if thJ ? \T "''" "'•'^^'- «»«I^
wi«e to be discharged.-36>., c sT. . 1. ^*^'' '^^^^'^' "^ other-
It is said ill lRu88.,2^- "If a n^ • ^.
memory commit a capital offence andwV ''""^^
for it he becomes mad, he ou.ht Lt to h ^''-^'^^^^^^
because he is not able' to pi aft '^ 'h "T/' '" ^^'
caution that he ought And if IV u /^^ ^^^^'^ ^"^
prisoner become maVLe fh^a^llTte tt ^7^^^' '''
Jnaku his defence If .h.v \ \ , ' ^^ ^^ ^^^^ot
he loses his senses bi^'dtmi; "I"' ''""■'^ «'""y-
.—, ana.... iitT::trrsr„r:
''\i
']
1 1
II'
lit''
AM
964
PROCEDURE ACT,
n.oinory, execution shall be stayed ; for, peradventuro. says
the humanity of the P^nglish hiw, had the prisoner been of
sc.und memory, he might have alleged something in stay of
judnment or execution. And, by the common law, if it bo
doubtful, whether a criminal who at his trial is, in a[)pear-
ance a lunatic, bo such in truth or not, the fact shall l)0
investigated. And it api.ears that it may be tried by the
j„ry, who are charged to try the indictnient, or by an in-
quest of office to be returned by the sheriff of the county
wherein the court sits, or, being a collateral issue, the fact
may be pleaded and replied to ore tenus, and a venire
awarded returnable inatanter, in the noUire of an inquest
of office. And if it be found that the party only feigns
himself mad, and he refuses to answer or plead, he would
formerly have been dealt with as one who stood mute, but
now a plea of not guilty may be entered under the 7-8
Geo. IV., c. 28, sec. 2 ;" sec. 145 of the Procedure Act.
The above sections of the Procedure Act, on the proce-
dure in the case of insane prisoners, are taken from the 39-
40 Geo. III., c. 94, and the 3-4 V., c. 54.
Where, on a prisoner being brought up to plead, hia
counsel states that he is insane, and a jury is sworn to try
whether he is so or not, the proper course is for the pris-
oner's counsel to begin the evidence on this issue, and
prove the insanity, as the sanity is always presumed.— ii.
V. TurtoUy 6 Cox, 385.
' It has been seen, ante, under sec. 163, that no peremp-
tory challenges are allowed on collateral issues.
The jury may judge of the sanity or insanity of the pris-
oner from his demeanor in their presence without any
evidence.— iJ. v. Qoode, 1 A. & E., 536.
The jury are sworn as follows ;— " You shall diligently
inquire and true presentment make for and on behalf of
PROCEDURE ACT.
965
our Sovereign Lady the Q«eon. whether A B th. . •
bo nsano or nn^ «» i . "'"otner a. a., the prisoner.
the nature of the ,Z:^":Z!:Z]^ """""^'l"
305. i-usioay — u. v. ZJ^^go^, Ic.i: P.
A grand jury have no right to ignore a hill o™; »
poraon on account of his infanity/dthTrwhuT «■""''
waa comnntted or at the time of n eS^n^ h°e iT
however clearly shown.- A v. B<aITTc,- P to '
hJ Z"^^""^" "' "'' "■'■"' " '^ '<"""^ 'ha' 'he prisoner
ha^ not sufflcent intelligence to understand the „ "«
of the proceedings, the jury should be discharged and Z
pnsoner detained under the above section 255-^ *
Berry, 13 Cox, 189. '"'o.—k. y.
OKOWN OASES BESERVED
Which arLs/' iL'tiT t\tTo rr:i;rorr""'°" °^'^^
court for crown cases reserved and Z!! t'>^ Justices of the
Of the judgment 0. .ucrco^t'c ^o "^-'■■-
such question has been considered and deS^ Inj V"^™'"'' """
court before which the person is convictd nl' .n ft ' '"'' "''
mit the person convicted to prison or tZl "''"'''""•""'"■
with one or two sufficient suretie in 'suc^ s« J^r'^'r'"'' "' ^'"'
m, condUioned for his appearance' J^ ^h i n^ a suTh cTh d''"''^
to receive judgment or to render himselfin execatlnl m ''"'
« '.. V. in% \ Vs \ '% ' "r "" r:^ :t
966
PROCEDURE ACT.
260. The judge or other person presiding at the court, before which
the person is convicted, shall thereupon state in a case, to be signed by
such judge or other person, any question of law so reserved, wilh the
,pecial circumstances upon which the same arose; and such case
siiall be transmitted by such judge, or other person, to the court for
Crown cases reserved, on or before the last day of the first week of
the term of such court next after the time when such trial was had.
— C. S. U. a, c. 112, a. 2. a S. L. a, c. 77, «. 68, part. R. S. N. S.
(Sid S.), c. 171, s. 100. 1 E. S. N. B., c. 159, s. 23, part.
261. The justices of the court for Crown cases reserved, to which
the case is transmitted, shall hear and finally determine such ques^tion,
and re>rerse, affirm or amend any judgment given on the trial wherein
such question arose, or shall avoid such judgment or cder an entry
to be made on the record, that in the judgment of such justices the
person convicted ought not to have been convicted, or shall arrest the
judgment, or if no judgment has been given, shall order judgment to
be given thereon at some future session of the court before which the
person was convicted, or shall make such other order as justice
requires— C.& U, C, c. 112, s. 3. C. S. L. C, c. 17, s. 58, part.
R. S. N. S. (3rd S.y, c. 171, s. 101. 1 R. S. N. B., c. 159, 3 23, part.
262. The judgment and order of such justices shall be certified
under the hand of the chief justice, president or senior judge of the
court for Crown cases reserved, to the clerk of the court before which
the person was convicted, who shall enter the same on the original
record in proper form, and a certificate of such entry, under the hand
of such clerk, in the form as near as may be, or to the effect men-
tioned in the third schedule to this Act, with the necessary alterations
to adapt it to the circumstances of the case, shall be delivered or trans-
mitted by him to the sheriff or gaoler in whose custody the person
convicted is ; and the said certificate shall be sufficient warrant to
such sheriff or gaoler, and all other persons, for the execution of the
judgment, as so certified to have been affirmed or amended, and exe-
cution shall thereupon be carried outon such judgment, or if the judg-
ment has been reversed, avoided or arrested, the person convicted
shall be discharged from further imprisonment, and the court before
which the person was convicted shall, at its next session, vacate the
recognizance of bail, if any ; or if the court tefore which the person
was convicted is directed to give judgment, such court shall proceed to
give judgment at the next session thereof. — 46 F"., c. 10, a. 5, part.
a s. u. a, c. 112, s. 4. a s. l. c, c. 77, s. 59. r. s. n. s. (Si-d s.
c. 171, s. 102. 1 R. S. N. B., c 159, s. 23,part.
PfiOCEDURE ACT. gg^
^o3. The iudornniif nf n. •
-erved shall L ^ZL^TS^,, """V"""' ^°- '^-™ «—
P«n.e., in CMS the pPo«„K," 0^1' '"'" '""'"S """""I » 'he
«.»e BhoulJ be argued, i„ m"ZT "'""""^ ""»''" i' « "-a. Ihe
r" "'o *''ver.d, h,,; no „ i ri"" 1 °"'«- J-te-enU „f ,„„h
dure, except auoh only a, ench i , ,T °' """" <'"'"' "f Proce-
See, s. 2, interpretation clause t. cm ' , 1
of the words Court of Cro^TT ^' ' ""''■ '^''' '"'"'"'-g
Ti,. T • , -^ "-'OWH. cases reserved
The Imperial corresponding statute i, 1 lio V «
The statute gives no jurisSiction to he ' "f
cases reserved to hear a case reserved on ! T ""
demurrer. There must have been aM •'/""'"'* "
tion to give jurisdiction to this Zrt R ^"1,%»»"0-
Inii. V. Daoust, 9 L C T «f; fi. j ,. ,
been found aniitv nffJ^ ' ^' ^"^^^ndant having
beeugrautedtriuSMrX'^t-tr '"^^ '"'
of the court, the prosecutor m e Uo fit » ,' "?' '"■"
new trial before Mr. Justice Aylwi„ J" f,,'''^ '" ""^
for the court of crown cases reserved tl ''"''™'*
968
PROCEDURE ACT.
decide it.— 10 L. C. J. 221. It may be doubted whether in
this case they had jurisdiction before the second trial and
conviction, if a second conviction there had been.
A question raised in the court below by a motion in
arrest of judgment is a question arising on the trial, and
properly reserved.— i?. v. Martin, 1 Den. 398 ; 3 Cox,
447 ; R. V. Carr, 26 L. G. J. 61 ; R. v. Deery, 26 L.
J. 129 ; R. v. Corcoran, 26 U. C. C. P. 134.
The statute gives jurisdiction to the court of crown cases
reserved to take cognizance of defects apparent on the
face of the record, when questions upon them have been
reserved at the trial R. v. Webb, 1 Den. 338.
What a jury may say in recommending a prisoner to
ine-oy is not a matter upon which a case should be
reserved. When the jury say guilty, there is an end
to the matter ; that is the verdict, and a recommendation
to mercy is no part of the verdict.— i2. v. Trebilcock,
Dears. & B. 453.
On a trial for murder, the name of A. a juror on the
panel was called; B. another juror on the same panel
appeared by mistake, answered to the name of A. and
was sworn as a juror. The prisoner was convicted and
sentenced to death. The next day, this irregularity in the
jury was discovered, when the judge, being informed of it,
reserved the question as to the effect of the mistake on
the trial. Held, by eight judges, against six, that the
conviction must stand. — R. v. Mellor, Dears. & B. 468.
The judges were divided on the question whether tiie
court of crown cases reserved had jurisdiction over the
case.
The court expects cases reserved to be submitted in a
complete form, and will ordinarily refuse to send back a
case for amendment. — R. v. Holloway, 1 Den. 370.
■"3
'B
PROCEDUKE ACT
Tfn , 969
" a counsel should thint thai-
»t the trial ha. been omi ted t h'T """^"'" P°"" "^'^^
per for him to oommunicarih ,t %" ™"<' "" P«>-
tho case, and suggest aoCe^ttl it ?° T^^^^^
■nay be neoessary.-ij. v. 5™^*^;!. ,''"''''' J "''g'»ent
opinion of the counslfe .^ SlT '"" ""'• » '"«
m issue, the proper wurse ir o *"'"'' *■" ^'^re
-trppiL-:r-::r--a.end.ento.
re-8tated by order of the court Ir '"''"''' ''"» ^een
afBdavit, to have it a^ain re C ^P'lf"™. ™PPorted by
court has no jurisdilt "o „"t l^" "^ 'I"""- ^^is
ae judge's exercise of his di c e L T^*"'™'^ ^'*
Coa;, 258. aiscretion.—ij. v. Stuckl, 10
Tie court must deal witi> fj.„
upon the evidence Itm^ d b'V"'r ^' " ''''''' ^^
By the express words of the staf7,fo fi,
oo, in it. V. Overton, C S M «>;<;
reserved, it was held that ti,. i !i °" " °''°"" <^'6
prisoner's counsel to am,' „K^"^«^' "" ™' """w the
'"e face of the ind tS uuT'"',! "'' ''' "PP"^"' »
->.^.,but.iinear.eT:-!rLrx;:-^
970
PROCEDUKE ACT.
The rule that a jury should not convict on the unsup-
ported evidence of an accomplice is a rule of practice only,
and not a rule of law, and questions of law only can be
reserved.— ii. v. Stubbs, Dears. 555. Contra, R. v. Smith,
38 IT. C. Q. B. 218. But see later case of R. v. Aoidrews,
12 O.E. 184.
The court of crown c^jes reserved cannot amend the
indictment.— ii. v. Garland, 11 Cox, 224. Where an
amendment, without which the indictment was bad, had
been improperly made at the trial, after verdict, this court
ordered the record to be restored to its original state, and a
verdict of not guilty to be entered.— 22. v. Larkin, Dears.
365.
, On the argument of a case reserved, the counsel for the
defendant must begin.— i2. v. Gate Fulford, Dears. & B.
14.
Post, under the sub-title venire de novo, s. 268,
will be found the cases where the court of crown cases
reserved, ordered or refused a venire de novo.
Sec. 266, post, enacts that no writ of error shall be al-
lowed, unless it is founded on some question of law which
could not have been reserved, or which the judge presiding
at the trial refused to reserve. So that where any party
wishes to save his recourse to a writ of error on a ques-
tion that can be reserved, the proper course is to put in
writing his demand to have it reserved, so that the judge's
refusal, when it occurs, should appear on the record.
On a motion for a new trial from a conviction for per-
jury : Held, that the trial (under sec. 259 of the Procedure
Act) is not terminated until sentence is rendered, and a
"question which has arisen on the trial" (which arises on
the trial) does not necessarily mean a question tiiat was
raised at the trial, but extends to one that took its rise at
PKOCEDURE ACT. qk,
the trial, and therefore a point not raised bv th. r' ,
may be reserved by the court /? v p • o '^'"'^
327. court.— ij. v. Bam, 23 L. G. J.
J- 116. rQ««r« ?; •~'^- ^- •^*"*' 24 i C?.
See re SprouU, 12 & a\ l4o ' '' ^^ ''^ ^- 2«-
Where the prisoner has beea n„t ^„ v . ■ ■
indietment containing six count, I ^ '""' "" ""
ing with intent to muderZ If "".'"'■" "'* '''~'-
iirst count, which veX? ? """"^ ^""'y »° *"
reserved c.: t in ffll enr oltTf ^ "' "'"^ °" "
thatheconld not hi til ^- '*'''' ■=""■" ^ '^^■
they all referred to th's,r:et°°fr*" """'^' "'
disc,rar,ed on plea of j:;:^!:!^'!'"'^^ Tr'
5 Z. N. 92. "^ <^nuit.—R, V. Bulmer,
of tf f 'fuu':!.:":;: ::: ::?"' '°' '"^ '=°"'^''-''"»
the opinion of he fuul tl;" ' """"™ *''-". -
connecuon with such cat "r u '''"""'' '" '^^-'''o *»
mustbeauashed ifZT T ^"'^"*^'- <^^^ verdict
uc ijuasaea, it that evidenop minht u, /*. ,
v*t, though apart fro,„i,th:ra::«:-^^^^^
i J
l»
972
PROCEDURE ACT.
to support the verdict. The law on this in criminal cases
is what it was in civil cases before the Judicature Act.
The case of R. v. Ball, R. & R. 132, reviewed. R. v.
Gibson, 16 Cox, 181.
Challenging the array of the jury panel is not a matter
which can be reserved under C. S. U. C, c. 112. — R. v.
O'Rourke, 32 U. C. G. P. 388.
But otherwise, if the question is one relating to the
proper constitution of the petit jury. — R. v. Kerr, 26 U.
a C. p. 214.
Quaere, whether, when such a question has been re-
served by a judge at the trial, it can afterwards be made
the subject of a writ of error. — jR. v. O'Rourke, 32 U.
a a p. 388.
The decision of the judge in directing certain jurors
to stand aside is a question of law arising at the trial which
he can reserve. — R. v. Patteson, 36 U. G. Q. B. 129. But
see R. V. Sm.ith, 38 U. G. Q. 5. 218. See R. v. Mellor,
Dears. <k B. 468, died ante.
A police magistrate cannot reserve a case for the opinion
of a superior court, under C. S. U. C, c. 112, as he
is not within the terms of that act. — R. v. Richardson,
8 0. R. 651.
Now, under sec. 259 of the Procedure Act, every judge
acting under the Speedy Trials Act en reserve a case.
WRITS OF ERROR.
2Cui. Writs of error shall run in the name of the Queen, andahall
be tested and returnable according to the practice of the court grant-
ing such writ, and shall operate a stay of execution of the judgment
of the court below. — C. S. U. C, c. 113, s. l%,part. C. S. L.C., c.
77, *. 56, part.
Aa amended by c. 50, 50-51 F.
200« No writ of error shall be allowed in any criminal case, unless
PROCEDURE ACT. g^g
for the consideration of the cou't havfn 'i""' '''""''^ *« '^'^'^^
32-33 v., c. 29, ,. 80,part. '^^^'"6 .Jurisdiction in such casee.^
bro«,h;upo;;Tn;"„i;„ren:t::;^-"^^^^^^^^ «^-- ^-been
n.ent or inquisition, and the court of ern. '"f^rnrntion, present-
court Of error n-y either prono„eetrnro'"-^^ '''' j'"'^'"^»^' 'h«
record to the court below, i^o rr ttr^T'"'^^'"'"''"^ ''''"^'■t the
tl.e proper judgn.ent upon such indent; "'"' ""^ P''""'^""-
orinquisition.~C.^'. U. 0. c 13 f iTV JT''''''"' P-'^^^^'^^ent
^W^ o/ error WVior. ^^ • ^
ceedtegs ; 1 Chit. 747 Uhe Ih ^^ f "' '" *^ P'""
has not reserved a case' ,1 ^ *' ."'''"""^ "' ""* ««!
By the statute the jtd:;:;:? *"' '"' ™""^-
«nal, and no e;„r isCTtC ZZlr:: :r' ''
grounds, and by sec. 266 of the Procedure It '""'
of error shall be allowed in any crimTnaT^ "° ™'
founded onson^e question „?L:':hTcC:j;'^r f'^
been reserved, or which the ,-„H™ "'™ «<""d not have
.fused to .serve for ttlllt^Se e^ hV""'
Jur,sd.ot.on ru such cases." See M. v. ^atCttT^'
Tlw "questions of law which eouhl nnf i,
served by th« Judge presiding the tLr- \Z t'T '"
have no „ean.ng, for aU .ue^stionstf W eanber L:;:;
In M. V. Mason, 22 U C C P 'tde n ^eseived.
citing sects. 32 and 80 of the P^oc^d "' t^T"' ^- '""■
'■ Our law as to what n,ay orZylt , ?■ '" '""''
e™r essentially differs fronf that^f LglS^"'^"'^" ™
-ea,uestion^fi:tt:n::t::r;^ft^
i ' I
974
PROCEDURE ACT.
larity in awarding the jury process, for irregularity in the
verdict or judgment, for any manifest error on the face of
the record, for a challenge wrongly disallowed, or for an
error in the sentence, if the sentence is not authorized by
law ; also, in capital cases, if the allocutus, or demand on
the defendant why the court should not proceed ti) judg-
ment against him, has been omitted. — Archhold, 173 ;
Chit. 699, 747 ; Whelan v. M., 28 U. C. Q.B.2; Sth Ci\
L. Com. Rep. 170 ; 3 Bur7i, 60 ; 5 Burn, 359 ; 4 Black-
stone, 375.
The criminal law commissioners, loc. cit, say that the
matters apparent upon the face of the record, which are suffi-
cient to falsify or reverse a judgment upon a writ of error,
are the same as are sufficient to arrest or bar a judgment,
and also any material defect in the judgment itself, as a
judgment which sentences a party to suffer a punishment
not warranted by law. In this last case the writ of error
may issue at the instance of the crown. But although it
is issued at the instance of the crown, the court is not lim-
ited to the errors assigned; but the whole record is
before the court, and the prisoner has the right to the bene-
fit of all substantial defects in it, and the conviction will
be quashed, if such a defect exists. — E. v. Fox, 10 Oox,
602.
No writ of error, either in felony or misdemeanor, can
issue without the fiat of the attorney general, or solicitor
general. This fiat cannot be signed by the crown prose-
cutor acting for the attorney general. The court cannot
control the exercise of the discretion left to the attorney
general on this suhiQcL— Archhold, 188 ; Danlop v. R,
11 L. C. J. 186, 271 ; Notman v. B., 13 L. C. J. 255.
By section 103, p. 708, of the Procedure Act, ante, the
writ of error need not be on parchment. The original writ
PROCEDURE ACT
Itself is aerved and delivered to the clerk „f ,t.
has the custody of the indictmen .lu ° ™"'*' ^"''o
the recoH and makes the tt„ „ tl h ° *™ "'"'^» "P
must be signed by the jud- s! .' T'' ™» ''"«™
'ifr\%*'''-''-X-^^
it the whole reeorrl Ko « ^ .^ ^^' ^^^c.
fled, the plaintiffin:!^;::'":;,""^^' "; « ""'^ -«-
record, showing y affidavits tC^;;';;7""» °f the
heen om.tted, and a ceniorari ZuT " '"""^ ^"^
iold. 192 ; Duval v. R ZTcl "f ,""""'"''— ^™''-
On a charge of felony.' the oM-tv V,'
appear in person to assign e^s "■"g out the writ nrust
must be brought up •yUbZ ' '" ^^'ody, he
davit. The e.;cnses'of (hetrandT "'I"'"'" °" ■"«-
charges are borno by him 1 }' ^'"'^'"'' 'ravelling
-cessary that the pirintiifin IT::^""-' '' « -t
person, or be present when the Z!tl !«" """' "
given._8tt OHM. L. Com. ZpTnT,.V''''«'''''''
In Murray v. R., 3 D. *TlOO ^ °'^'' "2-
reasons, did not insist, in a case of M„ '°"'' ™ 'f"*''^
of the plaintiff in error. ^' ™ *«' P^^ence
No fact can be assigned for error wl,; 1
record._/J. V. Carf*, 2 B /7 3^2 °™"^** ^^
Formerly, if the court below La
»eous judgment, the court of eTror 17"'""'"'' *" ^"°-
">on huv to pronounce the proper iud '"' """"'' "' "='»"-
..cord to the court below, but were *^'?'' "^ '"^'^ ">«
judgment and discharge the defendanr'"'fi '"'"' "^^
A. .t £ 58, But nowrby sec '"""""'—f <«"•»« v. ij., 7
is authorized to pronounce the pler'l It "r"* °' '^'™'
the record to the court below, in order h ft ' " '" "'"""
FOMoun „ he proper judgment '""'' ''"""'""y
Ajudgmeut reversed ou a writ of error for a technical
976
PROCEDURE ACT.
error in the proceediujU' ^"s no bar to a seooml indi ment.—
M. V. Drury, 3G & K.ld,}; 1 Chit 756 i lilac/catone,
393.
In Ramsay v. R, 11 L. C. J. 158, theCont of Queen's
bench, held that no writ of error lay oi a judgment of a
criminal court on a rule for a contempt < (!Ouii
In capital felonies the prisoner is roni.uided and kept in
custody during tlie pendency of a writ of error. — Whela
V. M., 28 U. a Q. B. 2.
In Spelman v. R., 13 L. C. J. 154, and 14 L. C. J. 281,
the pri,- iner was admitted to bail on habeas corpus^ dur-
ing the i>tjndency of a writ of error.
But at common law this is noi allowed, and in R. v.
Wilkea, 4 Bwrr. 2543, Lord Mansfield said that he knew
of no case where a person convicted of misdemeanor had
been bailed without the consent of the prosecutor. Now,
in England, by statute, upon the issue of a writ of error,
a defendant, in misdemeanors, can be bailed ; 8-9 V., c. G8,
and 16-17 V., c. 32. But, without any statute law to that
effect, in no case can a prisoner in custody, in execution of
a judgment, be admitted to bail, even when a writ of error
has issued. Before the above statutes, in England, it was
said (Appendix to 8th Rep. Gr. L. Com) : " In the present
state of the law, a writ of error in a criminal case does not
suspend j udgment, and the party convicted is subject to
receive sentence, and to be consigned to punishment."
Though see art. 32, p. 173, 8th Cr. L. Com. Rep. as to the
case where the judgment has not been wholly or partially
carried into effect.
See, ante, under s. 146, Greaves' MSS. note.
On the hearing of a writ of error, the plaintiff in error
must be personally before the court, and, if he is confined,
should be brought up on habeas corpus. — Laurent v. R,, 1
g. B. R. 302.
J t
f r
PROCEDURE ACT
hat whether they w„u,d\t„:"t.r "* "'« """^ *» <I
. '■he .o„,.t cannot ;-k''-,;,'*^''-«'«W, 0«fe Js
Phce at the trial, and afflX^ ''>" '''"^"i for what took
the «cord are ina-lnX^iw™; '" P"^Porting 'o contradTet
^ Jho.it -vaaa'uejed'of a „ri::f • * -^'-
of the trial, which Z f„ a,„7 °'';'" "'at. i„ the course
w^s found guilty, a „edicaTw 1 ' "" '"""'' ""^ P*""
aualysia for the ■nformation „m„ ' *"' "'""^ '" '"ak I
»» and made a report b„ , 'tf '^' ""^ 'hat he had do, e
placed before the jury „» .' "l' "^Port « made was 2
'h-eby the pri.oL"^;: denrf /" ''"'^ ''^-'. ""d that
.".portant evidouce in her fa ^^^^^^ 'h<> advantage
ould not have been submitted o Z ' "^' "' ""^ >-^Po"t
he ov,dence, and as neither the evH '"'^ ''°°P' "' P»rt o
he judge in relation to it conld .'""k "'' "" ™K" of
eons,de«t,on of the eonrt of er^ ^ ''"''"ht under th
e"op that the plaintiif in eir h ?^ """"'' "' ^ ^"t of
'«ord amended so as to VC J^^ "" "«ht to have the
«port; nor could the plain IT "' ""^ »'"■' «.e si
»™ded so as to show reLTr ""^ '"''^ --^ 'o t
f he trial wrote the notes of !•' ^'^'^^ *ho presided
NN:f ^"^ ^^^ch may
.}»■
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978
PROCEDURE ACT.
be reserved by the judge at the trial under C. S. U. C, c.
112, s. 1; and where it does not appear by the record in
error that the judge refused to reserve such question it
cannot be considered upon a writ of error. — R. v. Mason
22 U. C. a P. 246.
The judge may discharge the jury, after they are sworn, in
consequence of the disappearance of a witness for the crown.
The prisoner may then be tried again, and a court of error
cannot review the judge's decision. — Jones v. jB. 3 L. iV.
309.
Error only lies for matter of record. The charge of the
judge is not matter of record. — Defoy v. jB., Ramsay's
App. Gas. 200.
li Quebec, the judge who presided at the trial cannot
sit in the court of error.— iJ. v. Dougall, Rarnsay's App.
Cos. 200.
The judgment of a court of record cannot be inquired of
on habeas corpus, Exp. O'Kane, Ramsay's App. Cos. 188.
And the judgment of a superior court of law cannot be
interfered with on habeas corpus, even if the sentence is
illegal. Exp. McOrath, Ramsay's App. Gas. 188. The
writ of error is the only remedy, but otherwise, if it is the
sentence of an inferior tribunal. Exp. Burns, Ramsay's
App. Ga^. 188.
See in re Sproule, 12 S.G. R. 140, and cases there cited.
—Also R. v. Mount, L. R. 6 P. G. 283.
APPEALS AND NEW TRIALS.
1. Section two hundred and sixty-eight of " The Oriminal Proce-
dure Act" is hereby repealed, and the following substituted therefor.—
50-51 v., c. 50.
268. ** Any person convicted of any indictable offence, or whose
conviction has been aflSrmed before any court of oyer and terminer
or guA delivery or before the Court of Queen's Bench in the Province
l-ROCEDUBE ACT. q^^
crimin'alli^i^d^':^^^:^^^^^^^^^^ ^J^^er superior court having
Of last resort, or, i„ tl^ P o^nc? of 0^^^^^^
Queen's Bench on its appeal ZeLJ ^^''' ^ '^' ^•^"•"^ °^
aga.nst the affirmance of such nn^ T *^^*' '^ ^^' «"?••«'"« court
Bhall make such ru e or ort the l!'" >,'"' •''" ^"^^^^^ ^-^
conviction or for granting a new trill <'> ."" '" *^^'"«"'^« ^'^ ^^e
or refusing such application, TtheTusti o^r"'-''' '"■ '^^ ^^'^"^'"g
«hall malce all other necessary rules anj/ T' '"^'''"''' ^"^
ruleororderintoeffect: ProviJi thaf n? k'^'" ^^'' ''^"J^'^g «"ch
•f the court affirming the conSit '"'^ "^^^^ «^*" b« «°'owed
ofappeal in writing has een s 'ed ^ ^Tl^r' "''' ""'«- -'' «
proper Province, within fifteen dayslft:rt,fr'^ ^'"^™' ''' "^«
" 2. Unless such appeal is brn .f ^^'•'"^"ce :
at the session of tCZtrn'Zt T "^'^^^^^^^
.takes place, or the session nex tZJZJt:"'''. ^"' *«'---
-n eession. the appeal shall be h d to lav^ t '^'^u'""* '« "'>* ^hen
otherw.se ordered by the suprel com ^'^ ""'" ^'^"^^'^^^' ""'e«a
and CO Jctd f ""* °^ ''^ ^"P-- -^t shall. i„ al, cases, be flnal
"4. Except as hereinbefore provide.} o
granted in any criminal case. uXs tfe' co "'"l- *"*' ''^^" "<>' !>«
for a cause which makes the former rLJa' I?" '' "^''^^'"^^ bad
was no awful trial in the case .-but" nli T ",'"^' ''^ *''^* *h«e
cases of misdemeanor in whici. by law n. .™? ^' ^'^^^'^ '«
granted : ' "' ^y ^a^^« new trials may now be
"5. Notwithstanding anvi.r.„»i
f"*/"'" °° appeal shall be brooItifT'"' """ '&'«%»»•
«nyjudgmenlororderofanyooart?„ o ^ ""J' ""■'-inal caae from
e...b .heJ b, .he Parli.neat "f Great Brifain T, T" <" W'^T
^P^UorpeUUoo, . He, "-i-.r Sintt't'.l^'-^'j^"
»«rvea are not unanimous are
mm
980
FEOCEDUKE ACT.
open to the appellant on a criminal case before the supreme
court. — R. V. Ci'nningJiam, Camels' Dig. 107.
Since the passing of 32-33 V., c. 29, s. 80, repealing
so much of c. 77 of Cons. Stat. L. C, as would authorize
any court of the Province of Quebec to order or grant a
new trial in any criminal case ; and of 32-33 V., c. 36,
repealing s. 63 of c. 77, Cons. Stat. L. C, the Court of
Queen's Bench of the Province of Quebec has no power
to grant a new trial. — LaliherUy. JR., 1 8. G. R. 117.
But a venire de novo could always be granted.
A new trial will not be granted to the crown in a crim-
inal case ; neither has the crown an appeal to the supreme
court of Canada from a judgment quashing a conviction.
-. The Queen v. Tower, 4: P. <S; B. (N. B.; 168.
A new trial may be ordered on a reserved case, in
misdemeanors, where it appears to the court on the
evidence that an injustice may have been done to the
defendant.— i2. v. Ross, 1 M. L. R. Q. B. 227, following
R V. Bain, 23 L. C. J. 327.
In misdemeanors there is no doubt that the superior
courts may grant a new trial, in order to fill the purpose of
substantial justice.— 1 Chit. 654. A new trial may be
allowed on the application of a defendant, after conviction
on the ground that the prosecutor has omitted to give
notice of trial in the cases where it ought to have been
given, or that the verdict is contrary to evidence or the
directions of the judge, or for the improper reception or
rejection of evidence, or other mistake or misdirection on
the part of the judge, or misconduct on the part of the
jury, or where for any other cause it shall appear to the
court that a new trial is essential to justice. — Sth Or L
Com. Report, p. 1 59. If the defendant has been acquitted,
the prosecutor is, in general, not entitled to a new trial— 22.
PROOEDURS ACT. ggj
V. Silvester, 1 Wila oqo . n „
571, thoagh it seems .Llltt / u^' ""• ^""«»' ^^ ^'or,
shaU have\ept blok ant o tt! ' ""'"^ '"^ '''^f^'J^'
Obtained .„ .UX' Cd C ~ j"--. »'
A motion for a net tS "^^""',7*»ri«es the«, cited.
expira,ion of the U't Tyf^T 7'"' ""^^ "•"
trial or afer sentence The !ff / . ™ "''" "«*'
aU the offender who havf It''" "'■"'°'"'''^" »«'•
present inconrt,whent;emZnt;rr:t ""'"','"
R. V. CndweU. Note a. 2 i,... 372 1 0«\r ™''^-
some special ground be laid for diape„si„. with tK ' f"^
f- 2o2. .V here one or more of several defeudanf. h
been convicted, and another or others acq utted 7 ^ -
niay be granted as to the former only.!!?!^ 'esT"^'
^.aZ, 11 East, 307. As a general rule n . ' ^•'^•
new trial is received after a moln in a^J oH 7 °?
though the court may, in its di.nl ^^""""^ >
Ghit fiW . 7? V o 7 T discretion, receive it.-^l
o/iic. bi)S , ij;. v. Rowlands, 2 Den SU
Mr. Justice Ayl win, in R.y. Bruc^, 10 L CM U7 I. i^
thatm Lower Canada, where the coirt is heid b.f '
judge and never before more than two the ItL f '"'
trial in cases of supposed misdirpnH T °'^*'°''^°^- ^ «ew
able. And in M, v'Zul^t^eu^^^^^^^^ IT"""
Bench. Montreal, September wThV Jut !' ^"^"^^ •
seemed to be of opiuion that hltT ! ^^""'^^
hear and determin^ ^^^r^Tj^t!:! ^^
cases are not now law. ' ^' ^^^^^
It has been said that no new trial pin h. . , •
case of felony In 7? v «? v \ ? ^ ^*"^^^ "» »
eiony. In B, v. >^cai/e, e^ al., 2 De/t. 281 how-
fiflf'fi
'If
M
If
982
PROCEDURE ACT.
ever, a new trial was granted, in such a case, but it was
since said by Sir J. T. Coleridge, in R. v. Bertrand, 10
Cox, 618, that the attention of the court, in R. v. Scaife,
had not been directed to this question, and that the deci-
sion therein, so far, has taken no root in our law and borne
no fruit in our practice. In this case of R. v. Bertrand,
the prisone., in New South Wales, having been found
guilty of murder and sentenced to death, moved for a new
trial before the supreme court, on the ground of alleged
irregularities on his trial. The supreme court granted
this application, and setting aside the verdict, granted a
new trial. The privy council reversed this judgment, and
ordered that the verdict and sentence against the prisoner,
should stand, on the express ground that a new trial cannot
be granted in a case of felony. See R. v. Duncan, 14
Cox, 571.
The same doctrine was upheld by the privy council,
upon another appeal from New South Wales ir R. v.
Murphy, 11 Cox, 372. In delivering the judgment in
this case, Sir William Erie said that the cases in which
a verdict upon a charge of felony has been held to be a
nullity and a venire facias de novo awarded, have been
cases of defect of jurisdiction in respect of time, place or
person, or cases of verdicts so insufficiently expressed or so
ambiguous that a jv jment could not be founded thereon,
but that there is no v&M authority for holding a verdict,
of conviction or acquittal in a case of felony, delivered
before a competent tribunal in due form, to be a nullity by
reason of some conduct on the part of the jury considered
unsatisfactory by the court, and if irregularity occurs in
the conduct of a trial not constituting a ground for treating
the verdict as a nullity, the remedy to prevent a failure of
justice is by application to the authority with whom rests
PROCEDURE ACT.
983
the discretion either of executing the law or commuting
the sentence. But see Greaves' remarks, post, on these
cases.
Venire facias denovo.-~.ThQ " material difference " says
Chvtty Qv. L. 654, "between a new trial and a We
fcmas d^ novo, is that the latter is only grantable where
some mistake ia apparent on the record, but the former
may be granted on the ground of improper direction, false
evidence, misconduct of jurors, and a variety of other
causes which never appear on the face of the proceedings."
Manning, Serjt., in a note to Qould v. Oliver, 2 M <&
0., 238, says: "The distinction between an award of a
venire de novo and a rule for a new trial appears to be
that the former is always founded upon some irregularity
or miscarriage apparent upon the face of the record, whilst
the latter is an interference by the court in the'discre-
tionarv exercise of a species of equitable jurisdiction, for
the purpose of relieving a party against a latent grievluce.
After a rule for a new trial and a new trial had thereoii
the record ia in the same state as if no trial, except the
last, had taken place, whereas, upon a venire de novo, the
fact of the first trial, and the circumstances under which
that trial became nugatory or abortive, and which rendered
a second trial a matter not of discretion, but of right, neces-
sarily appear on the record."
As to when a writ of venire facias de novo may issue
the Cr. Law Com. in their eighth report, p. 160, say : " A
writ of venire facias de novo may be awarded by the Court
of Queen's Bench, where the jury have been improperly cho-
sen, or irregularly returned, or a challenge has been impro-
perly disallowed, or where, by reason of misconduct on the
part of the jury, or some uncertainty or ambiguity or other
imperfection in their verdict, or of any other irregularity
*i
V
; !
:■
\:
i«
t
t
' 1
;.i
1:
984
PROCEDURE ACT.
or defect in the proceedings or trial, appearing on the
record, the proper effect of the first venire has been frus-
trated or the verdict become void in law."
The record at the quarter sessions, after stating that the
defendants were indicted for stealing oats, to which they
pleaded not guilty, and a verdict of guilty thereon was
given, added, " that because it appeared to the justices, that,
after the jury had retired, one of them had separated from
the other jurors, and conversed respecting his verdict with
a stranger, it was considered that the verdict was bad, and
it was therefore quashed, and a venire de novo awarded to
the next sessions ; " and it then proceeded to set out the
appearance of the parties at such sessions, and the trial
and conviction by the second jury, " whereupon, all and
singular the premises being seen and considered, judgment
was given.'' Held, on a writ of error, that such judgment
was right.--i2. v. Fowler, 4 B. dh Aid. 273.
In Campbell v. B., 2 Cox, 463 ; Gray v. M., 11 C. &
Fin. 427; R. v. Yeadon, L.Jb C.81; and B. v. Winsor,
10 Cox, 276, the award of a venire de novo, in felony as
well as in misdemeanor, was held legal and right, in all
cases where, from any reason, the first trial has proved
abortive.
In the case of R. v. Murphy, 11 Cox, 372, cited, ante,
the judgment reversed by the privy council was a judg-
ment granting a venire de novo in a case of felony, but their
lordships considered the application was, in substance, for
a new trial, and an attempt, by the exercise of a discre-
tion, to gmnt a new trial in a case of felony, on the ground
that the conviction was considered to be unsatisfactory by
reason of some irregularity in the trial. The privy council,
in Levinger v. M., 11 Cox, 613, quashed a conviction in
a case of felony, and awarded a venire de novo, on the
PROCEDURE ACT.
fc I "1
986
' eng^ Ota juror. See also A v. MaHm. 12 Cor 204
the former trial has been « „„^' ^^ '*" "''^™
de «o» ought toltlrrd Vthr"'""'' " """^
cases reserve, holding 'tfatl^L^r: iTrIt
answefed^'to'T'"' ""T ** "^ *'«' " J"'" "y mistake
answered to the name of another, and was sworn The
fact was discovered after the trial was over, the prisoner
havmg been found guiUy and sentenced to death. Ton
a mse reserved, Crowder, WiUes and Byles, J J were o?
Zr *n ""*" '""'^^° »» "istrL; PoU^'ck Erie
thaUs the court of crown cases reserved, they h^ not
the nght to award a w««.. <ie «<«„; clrnpteH C J
Cockburn 0. J.. Wightman and Wata;n, J X, we» of
^pmonthat there had been a mis-trial, U thk^Tthe
statute, to orfer a t,e«i™ de novo ; Coleridge and Marti,
and that he entry on the record should be that there hai
and that the pnsonetmust be again tried for the same
5:'
f
086
PROCEDURE ACT.
offence. The majority of the judges, in this case, was then
of opinion that a venire de novo may be ordered by the
court of crown cases reserved in a case of felony.
In that Mellor'a case, it seems by the remarks of Pol-
lock, C. B., Dears & B. 487, that all the judges were of
opinion that a venire de novo cannot be granted where
improper evidence has been received. See R. v. Oibaon,
16 Cox, 181.
The Court of Queen's Bench, in the Province of Quebec,
in two instances, on setting aside the convictions, has
awarded a venire de novo, for admission of illegal evidence.
The first case is M. v. Pelletier, 15 L. C. J. 146.
The second case is E. v. Coote, 12 Cox, 557 ; Z. jR. 4 P.
C. 599. This last case was brought in appeal before the
privy council, and the judgment was reversed, on the
ground that the first trial and conviction were valid, so
that the question of the power of the court to award a
venire de novo, when the verdict is vacated on the admis-
sion of illegal evidence, was not determined.
In R. V. Quay, 18 L. C. /., 306, the Court of Queen's
Bench, upon a case reserved for its consideration on the
legality of certain evidence received at the trial, held that
the evidence had been improperly admitted, and quashed
the verdict, but the report does not show whether the
court ordered either the discharge of the prisoner or a
venire de novo. In JR. v. Chamaillard, 18 Z. C. J. 149,
upon a case reserved, the Court of Queen's Bench va-
cated the judgment, on the ground that the first trial was
null and void, but gave no order, either as to the dis-
charge or the trial de novo of the prisoner. In this case,
the prosecutor subsequently moved for a venire de novo
before the original court, upon which the judge reserved a
second case for the consideration of the full court on the
PROCEDURE ACT. 93.7
question whether ho ha^ t-u • 1 x
point. „„ ti,o^onifzrzz::t^'^^ """'"^ *»
80, evidently overrulin,, ff „ n "f J-"'")'""™ tod"
though the re^rti^ZuCftZ:^'' ''f- '^ ''''
W the j„dg.eft „; ren'^tr C: 'r Z T' ?"'"""•
whore the trial was held, l^^ZT " "' ~"'''
can either reverse, affirm or amln 1°"^^ "^^ '^"""'^
Buch judgment, an4 oX „ en.v to'ti"^i ""™"'
record that the P-ty e„nvicteVo„ght „„'; "f ° "l"^'
convicted. If the <,Pi>f.„„. ? ^ """^ t^™
passed hy the onrt . Z^e f"™' "" •"" ^^-
court of orown oases retvTdtnresrr'- 1° '"^
or oKlor that s„oh judgment bo Ten 1^1 ! 'l" T"''
the case oomos at a suhsequent'sl sionw" llttt
cases, the court of orown oases reserved Z .1, *
make s«.A other crOer asjuZZ^:^^'^ "^ ^""^' '^
But, as said by Channell, ^ m n ' v ^
mpra, the court of erown oases resorv:^' '^''"- "^
affirm or amend the .erZ^ I 111™°' """"'
amend the Mgn^t, if the^ is onf ift "' ir'"'' "
it may arrest it, or onler it to be pronounced ;LnT ""
orier anything else which justice requfres n th W
trial IS a mis-trial fnr nn,r ,. 4""«8. it the first
the reco^i. tL "tt 7vXrX'"' "^ f^ °'
.» have so been, and 0*. .:^;^^::Z ul" IS, ''
order as justice requires. ' ^^ °*^^®'
ill:
!' 1,
\^ ill
I
i
988
PHOCEDURB ACT.
Tho enactment contained in the aforesaid section of the
Procedure Act certainly implies that in any case where the
former trial has been adjudj;fed to be a nullity, the offender
may bo subsequently tried for the same offence. If there
has been a mis-trial, the defendant hiis not been put in
jeopardy. If it appears by the record that no legal judg-
ment can be given on the first verdict, it is, as it has been
Been, one of the cases specially mentioned, where a venire
de novo not only may, but must, issue. This is not an
application left to the discretion of the judge, as in the
case of a motion for a new trial by the defendant. A venire
de novo cannot be refused any more than the fivst venire
could have been. In the eyes of the law there can, it is
truQ, be had only one legal trial fo» the same offence ; but
it is that legal trial which is ordered on a venire de novo.
The proceedings held in the cr.se so far are declared not to
be in law a trial ; see R. v. Fowler, 4 B. <£; Aid. 273. If
the indictment has not been quashed, the offender stands
charged of an offence for which he has not yet been punished
though not acquitted of the charge. The former convic-
tion against him does not any longer exist. He could not
plead it in bar to a second indictment, because it was not
a lawful conviction, 1 Chit. 461, and he was not lawfully
liable to suffer judgment for the offence charged against
him. — R. V. Drury, 3 C. <t K. 190. If he may be tried
again on a new indictment, why not try him on the same
indictment, if it stands, and avoid delays, costs and annoy-
ances to the prisoner as well as to the prosecutor.
In R. V. Kerr^ 26 U. G. C. P. 214, the court held tliat
the first trial being a nullity, the defendant could be tried
again without the necessity of ordering a venire de novo.
There is no doubt that on a writ of error, a venire de
novo could be awarded, if the first tria,l is a nullity. " A
PROCEDURE ACT.
989
never, in co„.„„„„„,„; f Z i^r'"" """ "™""" '^
»<>' l«w that tl,i, can be' done'l ^ ""' '•*^- '' «
«nd every time that the fi„t ZioUs Z a" •;"' "' """''
of a m,8-trial, such o venire .°''""«' «»"!«, oi, account
Mid.- ^' ^'^' •='"«f Justice Cockbum
" No man ought to bo put i„ „^,,-, .„ .
charge. I entirely agree with Z, '"' "" "'" '"rae
take that fundamentaTlaX„f\" "'"""• ^"^ *« ""«»'
in« to w,,t i, really ^erbyfT;™'""' '"r ^'^^-
n>an shall not twice be put in pi, ",7""' 'H that a
been once pronounced, that verdL L ■ " ™'^''* '>'>»
competent for the jur^ to um^ ""^ '"" """<='' '» «■«»
a .nan « second time ff he hTh '' """' """' ""' "arass
.«*W. Still less shall you h "'"" '^"'"''"'^ «»<'
if he has been P^ouot'lrL "^ -.tir ^-"^ '™
country. It does not follow becau!^^ Z^ '""'^ "^ >"=
circumstance or reason a tri.l ? ""^ P«icular
then thequestion Zlvef thr'^'f "'""■■™' ««"
submitted to the consideXn of , iuT t ""' "" ='=°^-"
right and justice may v^«y,^^ ^^'"f^''''"^^'"^ as
™d: "For the reasonsg-Venhyc;™; , '"'*'"'™' J-
concur in his conclusion thatH "»' >«(«". I quite
where, „p„„ the j y pro^L g'^^r"": " ""'^ «■«'
from er:.r in the judgerr SlnZnh"'™"' *'''"'^' "' *>«
accident, or the judge imDmilrlv^^''"^' """^^taWe
the indictment L'SLT^^tlt' T ^"''' ""'
there ought to be a venire de n^' ' '" "" ™'"^ "'''^
I I
990
PROCEDURE ACT.
I
Motion in arrest of jfjudgment — The defendant, after
conviction, may move at any time in arrest of judgment,
before the sentence is actually pronounced upon him.
This motion can be grounded only on some objection
arising on the face of the record itself, and no defect in
the evidence, or irregularity at the trial, can be urged at
this stage of the proceedings. But any want of sufficient
certainty in the indictment, as in the statement of t'me or
place (where material), of the person against whom the
offence was committed, or of the facts and circumstances
constituting the offence, or otherwise, which has not been
amended during the trial, and is not aided by the verdict,
will be a ground for arresting the judgment.
The court will ex proprio motu, arrest the judgment,
even if the defendant omits to move for it, when it is
satisfied that the defendant has not becu louud guilty of
any offence in law. If a substantiel ingredient of the
or nee does not appear on the face of the indictment, the
cou' will arrest the judgment. — R. v. Carr, 26 L. G. J".,
61. Judgment will also be arrested if the court does not
appear by the indictment to have had jurisdiction over the
offence charged. — 8th Grim. L, Gom. Report, 162; R. v.
Fraser, 1 Moo. G. G. 407.
A party convicted of felony must be present in court, in
order to move in arrest of judgment ; so a party convicted
of a misdemeanor, unless his presence be dispensed with
at the discretion of the court. — 1 Gl.it, 663 ; Gr. L. Com.
Rep. loc. cit.
If the judgment be arrested, the indictment and all the
proceedings thereupon are set aside, and judgment of
acquittal is given by the court, but suet acquittal is no
bar to a fresh indictment. — Archhold, 170; Sth Cr. L,
Com. Rep, 163; 3 Burn, 58.
l-KOCEDURE AC.-. ^^
^^^<^' M8S. note on nem trial ^ .
Oreaves'M^^ . ^"'''^'' ''''^ "^^^^ de novo,
Justice TascherVautr^'^^"««^^«-P"t to m. by Mr.
In cases where the com-f of «r.
the conviction y^Zm^Z^T^''^''^'''^^'-^
against the prisoner, or ^.^fi w r"'-';'" ^^ '"'^"^
tie prisoner l.aa been rem'd'lr""' """'^'^ "^
Bell. O. C. 280. can the cm rt oXT ""'• '"""^'aace,
" The statute authori^ t:ZTl ^ """" '
reserved: °°"^^ of crown cases
ii::^o":;r':i™„r-»'^»^^d=-ent.
be .ade „„ .,e .L";^ ^^ZZ^ ""-^ -
have been convicted. "eienoant onght not to
ivS't " T" ** J"''«"'™t."
other "sessionZ-If noM^l^Z^t ''"^'"' =" '->»«
thattin.egive-,.a,the;sh°aSb:aSa ?™ """' '^^-
re,ni;;»'''°'"^''^''-''»"'-«*^'asj„3ticcn.,y
giv!:: kI'^i? an*: rvrir? ^''^^ -^^ >«'»
been given; and V ^ ^ 21 "T"' °" J^'-^^t ha.
something to be done eitheTt t"^ ^"'""^ "'<l'"'-«^
We,»ndent of. any o' t el'r^f, ra""' " """"^
specified. °^^ '^^^^^ are previously
The act creates an entirely new oo„rf i
^n the affirmative. Ever/ 'Ist J . t ""' "''^
reserved; and, if reserved muT be fi n 7 ^'^ *^«
and when so determined the suhl f°'"^ determined ;
be in accordance with tha^^det^^^^^^^ *«
f r.' "^'" "^ ^^ '"^'^ form, and does not ^ ""''
to be in any existing form It inLr ^^"''' ^^^°^
S xorm. It introduces new forms, e. g.,
:i !
I ;
* 5'
992 PROCEDURE ACT.
Greaves' MSS. note on new trials and venire de novo.
the avoidipg judgments and ordering entries on the record
and adds general words, which clearly proves that the
forms might be varied to meet the particular case. In
some cases it is clear the judgment must be complete,
6. g., where the judgment is affirmed, and it cannot be
doubted that it was intended to be so in all cases? ; other-
wise a judgment on error would be complete, whilst a
judgment under this remedial act would not be so, e. g.,
a venire de novo on error j a mere reversal under this act.
Although the section is very badly worded, it is,
perfectly clear that the court not only may, but ought to
award any and everything that justice requires to carry
o\it to the fullest extent their decision. The clause not
only applies to judgments, but also to a judgment and
order to make an entry on the record ; and to an order to
give judgment, and to such other orders as justice may
require ; and then " such judgment and order, if any," are
to be certified in the manner pointed out.
It is quite clear, therefore, that there may be an order
in addition to a judgment ; and as the record of the indict-
ment is not before the judges, and the decision must in all
cases be certified to the ofiicer, who has the custody of the
indictment, and who is to enter it on the record, and send
a certificate to the sheriff or gaoler, it is difficult to see
how any case can arise where the judges must not give
some order in addition to their judgment.
In order to determine whether a venire de novo can be
granted, it is best to point out what that proceeding really
is, and we can have no better form than that in Campbell
V. JR., 11 Q. B. 814, the year before the act passed. It
ran thus : " It is considered by the court here that the
verdict and judgmer^t upon the said indictment be, for
PROCEDURE ACT. ggg
Greaves' MSS. note on new trinU j .
*i, ''^*"'* '^"'^ ^'ewtVe de novo
/ma» cfe novo upon the aaM 1 . r*" * ""' "^ "^^^
keeper of MiUbank do deW I ""'"'^ "'"' "^' ">«
of the City of Chester." C '"1™""" '" '"^ 8^'"-
whole of this or, at all event!' a 1 f °'"! '" ""' *'' ""^
the words "the said indictment^ wLt? ,^ """ ''"="''^»«
comprised in the judgment TH n ^^ ^ mentioned, is
wo«is of the judgment 'it r""^" ''y"'e formal
The English forHmpi; 3 ^T" r"' "' *^ "°"'-"
anew;" the last word tefn^ihr /™ ™"''' *» ""^^
aU I have pointed out is the ,-„d ^''' ""'""""S that
reverse the judgment Jd'l ''",*'"?'' '^" '^' """t »»
And I thinlc^it cS:r"e;ra:dt: 'T * ""» ^
that justice requires it, they ou^it il ^T "''""^
Pierce, 2 T M 53 i, .„ ^ The case of i)ame8 y.
proposition. ' " *" "^^'^^^ '"'"'^rity for the W
As to the objection that tha „„^ •
a verdict aside,\he answt is c ear'^rr^^"'"'''*^ '» -'
question reserved will show th.,f ,hl J, ^"'^'"^"^ »" the
this must appear on the facrof 1 f '' '""'"''^- "^^
in law is exactly the Ime as f t'^n I""''?" ' " ""'"'^
Befo« thisact, when theCour Uf One '^ t" ''"'•
e-oneous judgment -oefo:. th L In a "r "Jf '"'' "'' ""
.nd.ctment was good, they could o^ Jv Le r-'r' "^
and neither pass the proper se„t„„. ™''""'J"<'gment,
back to the court bel'^'^oXX'tle"'''' '"^ """■
n..ghtbopassed,_iJ. v. Bon^-Z^TI^ P^Pe-entence
which was passed to remedv ti,,- T' ■^"" *«• «.
a "court ofLor shallot jXtV'r ^'^"T
P-ouuce the proper judgment, o^^^^ ::^:X
000
994
PROCEDUBE ACT.
Greaves^ MSB. note on new triah and venire de novo.
court below, in order that it may pronounce the proper judg-
ment. Now a case might occur where this clause would,
enable the court of error to grant a venire de novo ; if that
be so, the act would be inconsistent in the most material
parts, unless the judges could do the same under sec. 2,
But supposing the sentence set out consists of a judgment
of reversal and an order for a venire de novo, it can
admit of no doubt that it is ejusdem generis with an
avoidance of a judgment and an order of an entry that the
prisoner ought not to have been convicted. Indeed, it is
quite clear that whether the sentence be a judgment alone,
or a judgment and order, it is ejusdem generis with the
tilings especially named. It cannot be anything other than
a judgment or a judgment and order. Again, if under this
act no venire de novo can be awarded, the anomaly will
arise that whether a venire de novo can issue will depend
on whether the question be raised under the act or upon
a writ of error ; and the act will have provided a worse
instead of " a better mode of deciding difficult questions,"
if under it a venire de novo cannot issue.
Where the judges affirm or amend any judgment, or
direct a judgment to be given, they order the conviction
to be carried out to its full extent. So, if they avoid a
judgment because the facts do not prove the alleged offence
they direct the prisoner to be discharged. In these instances
the whole case comes to its legitimate conclusion. But, if
they cannot award a venire de novo, the ends of justice
will be retarded, and may be defeated. There may occur
a case of as brutal a murder as can be, where judgment
ipust be arrested for some formal defect, and if the judge
ordered the prisoner to be discharged, he might at once be
arrested, indicted and tried again ; for the former record
PROCEDURE ACT.
Greaves' MSS! n^t^ ^
would „„t, "" "■"''' ""'' «•■••« * "»''.
de novo would be to make it nell " l^""."^ ' "«*'•«
proseoutiou, and to give th„ "^"^''"'f ^o 'wWute a new
escape. ^ "" """"»»' ""lother chance of
It is immaterial that the words of th. i
alternative. Two or more X. V *"'" ™ '» ">e
JoinedinajudgmenMfCesta;"''*'^^^ "''^ *-'.^ -^^
deutlfth:::"" '° '"^ '^^ »" «-* *» ^ose indepeu.
In Campielly. M., the Que'eu'fBlfh !' ^^"^^-^O-
der of Chester to issue a ZL7 I ^ '"^"""^ *« Keoor-
Chamber affirmed thr^Ce* "^ ^^^e ^.chequer
Aid. 273 shows that a courtT. f ' ' ^'""'*'"' * ^- -^
a new trial, and thiVcase wL^ ^ '''''™' "™ g^""'
courtisnotac urtofinfeno i-", .' ^"""'' """ *»'
Sm«, 8 5. <t ft g/^""™"' J»nsd.ction. See also £. y.
'■'^^■^' Mellor, Dears ^ n ±Ra ti.
rence of opinion wLethela tw J' ' "'' " 8Teat diiTe-
under the act The ou^r """ """^ ''« »--*d
Can-pbeU. 0. J., afe tra" Zl ''''''' "^ ^"^
as I can discover from th. ■ /""'*'"' '"^ """sr ; and, as far
Cockburn, Z mltj''TT' '^'^ ^^-^P^^". C J.
'Martin, B„ thought that ! nT^f ',' """.''"'^'"S^ J- »d
«ow was not the proper form. Pollock, C.
,_I_L ^
996
PROCEDURE ACT.
Greaves^ MSS. note on new triah and venire de novo.
B., Erie, J., Crompton, J., Willes, J. and Channell, B., held
that a venire de novo could not be granted. Crowder, J.
and Byles, J. doubted ; Williams, J., thought the case was
reserved too late. The majority, therefore, thought that a
new trial could be granted ; and it seems not to be very
material whether the new trial bo granted by the usual
form of a venire de novo, or by some other ; for in sub-
stance both would be the same ; and a simpler form could
hardly be invented than the old form. It seems to me that
the reasons in favor of a new trial are simply overwhelming,
especially those of Wightman, J. and Martin, B.
In the subsequent case of R. v. Yeadon, L, & G. 81, the
indictment charged the prisoners in different counts with
inflicting grievous bodily harm, wounding, and an assault
occasioning bodily harm. The jury found them guilty of
a common assault. The chairman held that they could
not find them guilty of that, on that indictment; and
directed them to reconsider their verdict ; and they then
found them guilty. It was held that the first verdict
was perfectly legal, and ought to have been received;
that there had been a mistrial, and there must accordingly
be a venire de novo. Now this judgment was delivered,
after time taken to consider, by Pollock, C. B., and Wight-
man, J., Williams, J., Martin, B., and Channell, B. concurred
in it. Either, therefore, they considered R. v. Mellor to
have settled the question, or they were satislied now that
a venire de tjow was right; and in this latter view Pollock,
C. B. and Channell, B. must have changed their opinions
and Williams, .T., must have held that, where a case was
properly reserved, a venire de novo might issue. The case
is a very strong authority ; as the offence was so trifling,
and so much deliberation was dsvotsd to it ; and the more
PBOCEDUBE ACT. ggy
acquitted of the aTOb^ t r'"^ '"'™ '""'f''''^'
deration whethaX " "ons JiS"" 't"^-* '=™''-
to eni«r a verdict of auiltv of . *^ ""' "^^ <'"'''■■«'
held to be tI,eWfStZT ''"::''' "'■'°'' ''-
have been the course Stlvil T "'*'"'*' ^™'''
case Of „i3de„eaut IJbtltdld ^l L^ "' f "
and the case reserved is even mnrp ^^ i .'' ^ ' ''''^^ '
by. My opinion is that the X fi'^'^^Tr
properly be made. -^ '' suggested might
However, there can be no doubt th«f fi,;
clnU. uutkori^y that the jud L^h^T XTtVlLr
venire de novo under the act ^"^ *
it irorrcL^eZnrr T'^'»^•^--
ad^>Utedo^lawfulerident xS '""fr "^ "^^
that it can. The questbnreema t^ , j "" '"'^ "'^^'
354, which seem to prove that if there be ampkTvidenf:
to support an indictment after reiprf,-„„ T «™ouce
evidence, the conviction will n" beS f^ '7""?
doubt is thrown on this doctrine, as s^tdt ^ v 1"^
Lord Denman's note in IDen r, V ™<.f . ' ^
facts of K«*feA (7a,., on which I' v 1 « "' ^. *"^''
and JJ. v. HarUn,, 1 Moo. O. C^l iTa Zl"*''
to me perfectly unconstitutional f^r jud'eTtf 1 °'™
t emselyes to decide, in a criminal ca^seXX ITof
the adm.ss,on or rejection of any evidence on the Ltd of
-m; and the later cases of Crea.. v. bI^. Txyf
I'ft
.ill
998 PROCEDURE ACT.
Greaves^ MSS. note nn nvw trials and venire de novo.
458, Wright v. Doe d. Tatham, 7 A. d; E. 313, De
Rutzen v, Farr, i A. <£: E. 53, and Bessey v. Windham,
6 Q.B. 166, show that where inadmissible evidence is
received in a civil suit a new trial is a matter of right ; as
it is impossible to say what weight it may have had on a
jury ; and no doubt they would be followed in any criminal
case, where Ihe question could arise on a record in the
Queen's Bench. And under this act, if the question be
whether any evidence has been improperly received or
rejected, the judges can only decide that question ; and if
they decide in favor of the prisoner, they must adjudge
accordingly. They cannot decide that any of the evidence
was inadmissible, and affirm the conviction. Formerly, in
civil cases, the courts exercised a discretion whether a new
trial should be granted for the erroneous admission or
rejection of evidence, and that accounts for B. v. Ball, etc.
But, under the act, a question of law only is to be decided,
and, when that has been done, the further proceedings
must follow the result.
In Daviesv. Pierce, 2 T. R. 53, the declarations of occu-
piers of lands, that they rented the lands and paid rent to
Mr. Evans, being rejected, a bill of exceptions was tendered,
and the record removed into the King's Bench, who held
that the evidence ought to have been received ; and, after
time to ccnsider what was next to be done, the court
granted a venire de novo, and BuUer, J., said " unless some
extraordinary reasons be urged to the contrary, I have not
the least doubt but that a venirj de novo m/ast be granted."
As no distinction can be drawn between the admission and
rejection of evidence, and as this case has never been ques-
tioned, it is a conclusive authority on both points, and,
equally so, in criminal as in civil cases.
PHOCBDTO.E ACT. ggg
I do not enter into the cases m to where a M»i^. rf-
«o.ooa„ or ..nnot be granted acoording to the tcU „S
mdependentof this aot; the act creates'an entirlrrw
In aU other cases, it is clear to me that, whether L
qnes .on be decided for or against a prisoier tie court
ought to carry out the decision either exactly ^s it wild
have b.en, if the question had been decided in Cl'^t
way on the tr.al,or as near thereto as may be pmotiX
I will next proceed to considers v Sca% 2T„ «,
and 17 Q. B. 238; M. v. Bertrand. 10 oZmZ An
V. mr,Hy. n Co., 372, and it 'wiU L'Z^IL^;
decided, and that the other cases are altogether erroneous
Ino«ler to a correct understanding of these cases t^e
procedure m onr courts in criminal cases should be cLrV^
known The Court of Queen's Bench has two fcl
cnmmal jur.sdict.ons; it may deal with all cases where
an .nforma .on .s filed or an indictment is found, in tha"
court, and .t may also deal with all indictments that are
removed before trial by certiorari into that court from Z
cour^ of oyer and terminer or gaol delivery (whichTwm
oal the as3..es hereafter), or quarter sessions. It seem"
aat, or,g.aa ly, the trial in all these cases wa, before all th!
judges of thjs court and that trials at bar, such as ^v
taal. It ,s obvious that such a proceeding must have
been extremely inconvenient, and by the 27 Edw 1 S* i?
c. 1, .ntitled " nisi prius shaU be ^fed hefo:;- ^totZ
11
; I
f I
1000
PROCEDURE ACT.
Greaveg' MSS. note on new tnals and venire de novo.
justices of the court where the suit is commenced," it is
enacted that inquests "shall be taken in the time of
vacation before any of the justices before whom the plea is
brought ;" but it adds " unless it be an inquest that
requires great examination;" which supports the opinion
that trials at bar were the mode of trial originally. Tijis
act only authorized nisi prius before a judge of the same
court, in which the suit began. But by the 14Edw. Ill,
St. 1, c. 16, nisi prius may be granted before a judge of
another court, and the verdict is to be returned into the
court where the record is, and there judgment is to be
given. The effect of these statutes is to make the jud^e,
whejiher he be a judge of the court where the record is or
not, a representative of the other judges of that court, and
to make the trial exactly the same as if it had taken place
before the full court, and hence it is that the report of the
judge who tried the case, whether written or verbal, is
always acted upon by the court. The following is a strik-
ing case. In E. v. Wooler, 6 M. S 8. 367, an inform-
ation was filed by the attorney general for a blasphemous
libel, and the defendant was found guilty before Abbott,
J., at the London sittings, and the next day he reported
verbally to the full cour^, that the jury retired to consider
their verdict, and on their return into court the foreman
gave a verdict of guilty and said they all agreed, and the
verdict was recorded ; Abbott, J,, then summed up the
course he had taken when the jury retired, and said that
then a barrister informed him that some of the jury had not
agreed in Wooler a case ; and it appearing to him, Abbott,
J., to be doubtful whether from the particular situation of
some of the jury, they might not exactly hear what had
passed, he made this statement to the court ; and a new
PKOCEDURE ACT.
laforra^tio,, filed by the attnm! ^'""^^- ^' »<« an
Priua in Loadon. The c^l^ a f f "''\' '""' '^'^ "' "«'
Abbot. J., e«o«y „3 :^ZyZ:n b^ '""'" '^'"« "f
tn»I. It shows that the court will " l"'''""' »' «>«
criminal case when there i T ^""" " "'** '"«' '" «
correctness of the verdict. ^ '''^"" '" <''«''« the
The jurisdiction of the Oonrf en
inal cases arises from its beinlth! T'""'' ^'""^ '" ""■»-
and terminer and gaoldelive": ™''"'^- court of oyer
firstcase«WsMp,«tooknonoti™„f*K '^*^'"'"''" " 'be
but in the second, they sav",r '"""'"''««><»»«:
banco i„ terra, could (not) take col?""""' """"^ ''"'"S '■»
appeal of 'be judgraent p on„u„X f" " ' ""' "'
session of oyer and terminer whM J^/"""^"' J- at the
before the session in banrtel:"''T:'"r '" *» »*
neous; the trial was at nisi prlus i„ Jr' " """^^'hererro-
just was exactly like ie. v. WooLV ^T' '=°"''' "-"l
prosecutions for felony in tW 7' ?' "'"y*«'«'-cnceisthat
tbe suit of the attorney "eemlT^"' "" ''''"™''«- ■"
neither a court of appeaCnorias the' T""* '" '""-^ "'"
terminer ended. It was the I "" »'»>'«■■ and
trial was in contemn aZofir' 'T""' °°''«- »"<' 'be
place befo. all tt^lf^LT''^' ''"''' ^'^^^^^n
granted by them. A Lver mU, t '""' '"'"' '""l !"*«»
■»ade, for there is no do^ h! ^""'"<' °°' "^'^ been
"otgrantanewtrial/wWetL ^"'""'^ ^^""h «'--
a3si.es or the crown sMe for it ' "'' •*"■ '*" "' ">e
•«fore it; and it i. bedus; [he °'. '""' ""^ &<="
ca^e is tried on a recoTof tb n"'' "'' '*'°"'^ '' ^h™ a
-'cang.ntane:^altt;tr xht"' T """
•^ case. This mistake com-
1 1
J
|:»l
In
J
■[
1002
PROCEDURE ACT.
Oreavei' M8S. note on new triali and venire de novo.
plotely destroya the authority of both R. v. Bertrand and
A. 0, V. Murphy ; for in neither, was the true nature of the
case seen, and all that these decisions amount to is simply
this, that the supreme court cannot grant a new trial in
felony, where the case has not been tried before it, but
under a commission of oyer and terminer or gaol delivery.
And here, I cannot help questioning the docision in R.
V. Bertrand that the Privy Council could hnar the case.
In R. V. Wooler the court acted on the verbal statement of
the judge ; how could an appellate coa *, deal with such a
case ? Althotigh there are written notes of what may have
occurred at a trial, it is difficult to see how they could be dealt
■with in an appellate court ; and in such cases, it is clear in
England that no appellate court can notice them. Yet no
notice seems to have been taken of these points. — In that
case of jR. v. Bertrand, an information for murder filed by
the attorney general in the supreme court of N. S. Wales was
tried before the Chief Justice, but the jury could not agree
and were discharged ; and the prisoner was afterwards tried
by another jury, and a verdict of guilty given, and a new
trial granted by the supreme court, on the ground that the
judge's notes of the evidence of witnesses on the previous
trial had been improperly admitted in evidence. On appeal
to the Privy Council, this decision was reversed. The
grounds of the reversal are open to much observation. The
first was that no new trial could be granted in any case of
felony. This positiou is cle:: . ly erroneous in many cases as
will be shown. Tlio. itcoud .ras that iL v. Scaife was the
only case where an application for a new trial in felony had
«ver been made. It will hereafter be shown that R. v.
Ellis, 6 B, S C. 145, completely refutes this statement.
M, v. Scaife was misunderstood. The court said that,
PROCEDURE ACT
*fo; a judge «t„Ui priurttno^ " " ''™"«' ""■»■
'h«t great judge k„,„' th XhTr*" '" '" ''°' ""'
Ho " thought that a, the l"!j ^T I**''"^ "-"U-
Bench, that was the proper WhT^ T'/'""' ""« «"«»■»
«..d he iuformed tho pZou ' °, '""'' '""' ""' «-"»."
the admissibility of tie dl„ T'"''',"'*' " ^'' "'""Kht
that court. "-2 'i) J. '2 e'^" """"1 be rai,ed'i„
ingly. ""• '^'"' " was so raised accoM.
The court relied verv m.,«i,
appUcation for . ne^trW tflti: '"""*' ''"' "»
since that decision no attemnt h»dT '^°' "'"' *hat
case as an authority. IfithndhJ '"'^''"ade to press that,
Bench or on Queen's Benth rS ZfA" "■" '^"-''•»
how extremely wealc such a^t ; ' In ^'1 ''^"' «'^"
nence on the Oxford Circuit I „„, ^ '""S «"?«-
never heard of another atdl^'Tr"''" ™»- «"■"
except the oases «por j have come .«;!."'"'"'" ""^
wrdic«. The reasons are dear iZ ''' """" "Z'^''
to remove a case into the Queen', R T™' 'P'^9rou,nd.
tal^es place, the same ^ortforaf '"'k"'""^"«'^»'
taU and convictions wiifocouTr . """^'^ "' '"^^^
arizes; and in acquittals there can br^'' ""'' "' "■«
in convictions, it fa not i„ T ^ '"' "'"' '"als, and
can 1« any g^nldV;;:;- J- >» twenty "'='' 'here
than reasonable to rely mTb. " ™' ^^^thing rather
(Since the p««,eding wi wri. T "''"<''' ""ses.
-de in th^ crown'o;:. I^d t ttttir' ""^ ^^^
" ^^® ^as<= 33 years there
t ^
1:
( ■
ICK«»
1004
PROCEDURE ACT.
il
Greaves' MSS. note on new trials and venire de novo.
have been only 55 cases of felony and only about 11 convic-
tions, which may be reduced to about six actually separate
cases ; and R. v. Scai/e seems to be one of them. Noth-
ing could mo^e strongly confirm my views ; and I have
no doubt now that the reason why other cases of applica-
tions for new trials have not been found is that there have
been no cases in which there was any ground for making
them, even if there were any cases where an application
was capable of being made.)
Again, no mention is ever made on the record of the
application for or of the grant of a new trial. And in
Bright v. Eynon, 1 Burr. 394, Lord Mansfield, C. J., said
" the reason why this matter cannot be traced further back
is that the old report books do not give any accounts
of the determinations made by the court upon motions."
Neither this case nor R. v. Mawhey, 6 T. R. 619, were
cited. In the latter, the court held, for the first time, that
a new trial in a criminal case might be granted as to the
defendants that had been found guilty only, on the ground
that justice required that should be done ; although no
precedent could be found.
The evidence of some of the witnesses on the former
trial, in this Bertrand case, was read from the judge's notes,
at the instance of the prisoner personally and on the appli-
cation of his counsel ; and this course was disapproved by
the Privy Council, who said : " It is a mistake to consider
the question only with reference to the prisoner. The
object of a trial is the administration of justice in a course
as free from doubt or chance of miscarriage as merely
human administration of it can be, not the interests of
either party." This remark very much lessens the impor-
tance of a prisoner's consent even when he is advised by
PKOCEDURE ACT. j^^g
that a p.3on. ^ ^1— :f "t '''°'^^^™
ti-ghthe court advir;hr„i:rV"""^' ■''>» '"^-■
but conseutiug to a verdt '"• '*^'"" " «""
question "are youMil °"'"'' "'"'^'f^ ^he ve>y
ie ma„o oousenr ! ^eClf'"^".--- *"'
openly stated in court thit » ^ ^ '''"*'=' '■°'' '' '» <«
adWee of H.. oouu^ ! ^I ft ^^^1^^ "^ '^^
:br;:a:,srtr " - ^"---^=
the evidencebeingl d a 'dL'tlT; """ °"' «™^^"' '»
and thereby cons'enrt be Cf 0^" ^'"^ ''■'^■
were more sensible men. la JU°m W', ^ ^'T^ '""'^'^
after stating an imperfect verd^t Xl 7 , ^"^^ "*'
was asked whether'he wished tfLT^rllr '''I-'"'
and he answered th«t he did andsohr„n! """^■■<'"='-
was freed from the verdict aU tl i ""=°"'^'*'
lun held that this courlew^ ri"b l!' ^' '' ^"J^*"''^
case there was no ver 1 tTn „ol^ „f ,' " ""' *"' '° "''^
pointed out in ^.^Ic^rC, /";' "/T'' •^••
hwalidate the ruling of all TjCd es Hat ' ^^' " ""'
consent even in a case of murder Li^-'^,?'"' "^^
FoKt. 16, after the iurv hJT , '"^™^''*» Case,
oBargcd "at the'tc^r ItthfcSnt'-^r ^^
oners, and this was held riahf r IJ""^^"" »f the pris-
•■ in capital cases I ^Sj^^T ^'"' '- '""^
the prisoner that it should not ufe him ?"""' ""
anything manifestly wron» and 1^, °°"''"' '°
^ven this great criL„allal;:^:^ttr:;eSta-:
ff; F
1006
PROCEDDKB ACT.
Greaves' MSS. note on new trials and venire de novo.
the judge cannot prevent a prisoner from stating in court
what he may think fit. All that the judge can or ought
to do, is to explain to the prisoner the position iu which he
is, and the consequences of what he is going to do, and then
the prisoner is clearly entitled to act as he likes. In R. v.
Edward, R. & R. 224, where a juror was taken ill and
another sworn in his place, the judge said the witness must
be examined over again ; but the counsel said if the judge
read his notes over that would be sufficient ; accordingly
he read his notes over to the witness, asking him at the
end of every sentence if it was right, to which he answered
in the affirmative, and was then cross-examined ; and the
conviction was affirmed. This case was not cited in R. v.
Bertrand,
In A. G. V. Murphy, 11 Cox, 373, an information for
murder filed by the attorney general in the supreme
court of N. S. Wales was tried at a " session of the
said supreme court as a court of oyer and terminer and
general gaol delivery" before one of the judges of the
same court, and the prisoner was convicted, and a rule
was granted by the said supreme court why a venire
de novo should not issue on the ground that, during adjourn-
ments of the trial, the jurors were permitted to see news-
papers containing reports of the trial as far as it had gone.
One report was headed " The South Creek Murder Case,"
and another stated that a " witness was cross-examined, but
was not shaken in his evidence." That rule was made
absolute ; but on appeal to the Privy Council that judg-
ment was reversed. The first ground stated for the reversal
was that " the law is clear that the discretional power vested
in certain courts and cases to grant new trials does not
extend to cases of felony." Now in this case the
PROCEDURE ACT. jqq^
"ew trial could be KranrcT^; ■"=;'"""' whether a
waat of impartiality of Te W '^TT''' ^^'- »■»
by reason of some LiZiuZ\^\^\ ^ °™'' ?»' ")
held that the rule so lafd o™ iu R Tt , ^'l ''" ""'^
the case. ""• ^- ^ertmK,? governed
the same charge " 1 stZt P"* '" P™'' '"<=« <>"
never made, fhe r^le^ritT '"""° "'""'-^ ^-
and here it is used to pTvent him T""''' ^'"'' '
and a chance of saving his .f 7> T"'"^ " '"' '"'^'
say that the rule onlv aL „ i^ "''"'"' "''<""«'' '<>
lawful conviction or acaS I '^ ""'^ ""^ ''^^° «
is whether it be lawf7o" 1^ ■" ""' """' *^ ^^'-n
The court then rely upon the «c««m of Blackburn T •
the matter has ^^:::SZtZZ"'Z\Zt''
canbe no further fn'fll " \\tu\i. , ^ tbat there
tied down .ot:testrr::ttir:a:'r r'^
corrector not, need not be diseased ItT ' ^"'
<- wide as a general propos bn V t rur"?"!^
:ra:::^::fSd^:::^:r\^'~"^^^^^
*™the,„esinT:lXj«':eK-l— ^•
^"^:irttr::^:;tr^^^^
this was unknown to them i: A r^^^^^^itT' "■™«''
sistent with t}iP a«no.oi ^enrand, and is lucon-
t^e general proposition at the beginning of this
il'" '^
I'
i:
'
1008
PROCEDURE ACT.
Greaves' MSS. note on new trials and venire de novo.
judgment. They say " the cases, in which a verdict upon
a charge of felony has been held to be a nullity and a
venire de novo awarded, have not been classified in the
digests ; there are cases of defect of jurisdiction, in respect
of time, place or person — cases of verdicts so insufficiently
expressed, or so ambiguous that a judgment could not be
founded thereon ; but we have not discovered any valid
authority for holding a verdict, of conviction or acquittal
in a case of felony delivered by a competent jury before a
competent tribunal, in due form of law, to be a nullity by
reason of some conduct on the part of the jury which the
court considers unsatisfactory." We think the search must
h^ve been very superficial, or (we much regret to add) the
cases very little understood. At all events it would have
been very much more satisfactory, if the court, instead of
looking merely for cases in point, had taken pains to
ascertain the principles upon which verdicts had been set
aside, and then considered whether this case was not
within those principles. The right under Magna Charta is
that every prisoner shall be tried per legale judicium
parium suorum ; (see the remarkable record in 1 Hale,
345) ; and, in our humble judgment it needed no case to
prove that no jury that is improperly biassed or prejudiced
can be a lawful jury, and consequently if that he shown, or
even if a real doubt be raised as to that being the case,
the verdict cannot stand.
Again the court say " none of the authorities cited for
the defendant appear to us to sanction the notion that a
verdict, even in a civil case, could be set asida upon an
imagination of some wrong without any proof of reality.
The suggestions, upon which verdicts have been so set
aside in civil cases have alleged traversable facts, malerial
and relevant, to show that the verdict had actually
PBOCEDURE ACT. ..
or more o„mpktel/p;~i!^.r,l'"^ ■"''""''"''''■'''•
what it decided, tha/tlir^e ^"'^ ""P"'''* »'
3.^'^: :t rp:a7:!:tr « r • " ^ -^-^ -
at the time when it oeeu^^ r„ "' "'■'''^^tencea
charge of misconduct, partiaiitv .► " *'' ^^^^^^7
i^ry. the practice was'Ce jX -"" "^^ '«'"''' »
as to it, and if they admitted it the^LT""™ *' '"""'
on the record. Thus where a I ^-^''^'on was entered
of a jury had sepa^d dr„nt f:d7 "t "'^' '°™
stranger, the iudL »f J™ • ''^^" '•'^'«'J hy a
who confeseed' tand th '7 '•''*"""''' *e .jurL,
parcel of the reoori, and ntverthelT."" ^"'^'^^ -
verdict, 14 ff. ril- 29 rsTrlr,"": J""'«^ '«<"^ «">*'
was examined by a jurv after 'tJ\ ., ' "'''^^ ' "^'^"'^
their verdict, a/d e^J;!^^^: f^^^^^^^^^^^^
examined the inquest, who confessed al .1 ^'^^'' ^^'
was entered on the postea.-Slt " n °'''''^' ^"^ ''
189. And see Fwar?/ v WnZf-l. ' ^''''''^ ^^^- ^l.
V. ^Aor^, Cro. ^;. 616. ' o'mves
The case in 11 H TV 1*7 ,•„ ^.u- ^
assize had delivered a .llltritif :"""""' '"" ""
the panel for evidence of 1,;= Tf ^ "^ * J»ryman on
ju«r, withothera w" :2n and T' ^'" '"^ -^o
oa their verdict^ L IZZ'Z ^ '" " ^"""^ "> "^'^
paoions; and the offli^hoteptT- ""'"'" *" ""'' "»™-
—0 the court; wherefLt'SXVS:::^-
PPP <»
wn*
■\:
jQj^Q PROCEDURE AC5T.
GreavM' MSS. note on new triah and venire de novo.
from the jurors, and took their verdict, and by the exami-
nation of the jurors, the time of the delivery of the wntmg
was inquired into, and it was found (i.e. by the judges,
and not «bv the jurors" as the Privy Council supposed)
ut supra ;\nd because the verdict had passed for the
plaintiff, he now prayed his judgment. Gascmgne and
Hulls, judges of the K. B., said that the jury after they wore
sworn ought not to see or carry with them any other
evidence except that which was delivered to them by
the court, and by the party put in court upon the evidence
shown; and because they did the contrary, this was
8usi)icious (which words are omitted hy the Privy Council.)
Wherefore he ought not to have judgment. (And alter-
wards the plaintiff said that the writing proved the same
evidence as he himself gave to them at the bar; wherefore
it was not so bad as if it had not been read in evidence,
but it was not allowed.) The Privy Council omitted this
last passage between brackets.
Now it is quite clear that the same course of examinmg
the jury, etc., was followed here as in the cases above
referred to. Yet the P. C. call this «'a special verdict ;
and say "the result of the examination, viz.. that the
verdict was not according to the evidence, but upon
evidence taken out of court, without the assent of the
other party, appeared by the fin^^ing of the jury ; and.
acrain, that the court " ascertained the fact of the miscon-
d°uct of the plaintiff by examination of the jurors, while
acting as jurors, and by their verdict."
Whereas nothing is clearer than that the only verdict
the jury gave was for the plaintiff upon the issue joined ;
and it is very difficult to understand how the Privy Coun-
cil could imagine that a jury could find any verdict as to
PfiOCEDURE ACT.
Greaves' MSiSi ««# lOll
-«ioo. note on npm t^'^i
have convicted themselves nf ' ,"*"=' "■»' "<>"W
B"' it is still more su^ri,.! Th":'?'^' '^ »"' ■>'°'e.
wWst professing u> tra'" Itf th " """'^ '^""""l
«m.tted all version of T L "=*'' »'«'»1<1 have
" the very ground of the jJZ^T^f"^' '"' *^'
hy he judges was the judi. „f If "'"" *^ ^^
(trial verdict, D. pi. 9.. p rr.?!,,, ""= "»•"•'• ^»««
ground that the delivery If. l?""" ""'' ""^^ ^ the
avoid a verdict for the party wL'^^r"^ ? *' ^"^ «"'
g.ve the same evidenced the"^ aT^ "* *'"'°"«'"'«
;o th,s nor in an, other case S'th ^'' ""•'''^"''"
;»q».ry Whether i» /„„, ,i, .„ ^ ^"-^ """'t enter into any
>3 a distinct anthority that if a ir".'""'''''- ™'^ <=»'«
which may pos.ib,y b;,, ^^^^ TnTtf'^" ^^'^'^J'^^Y,
h.m, this makes the verdictZ'T,-^^ ""'' " ^■^■^'"t f«
»tand; and this case haa1C^~ ^ '' «'■"■>'"
cases. ""^^3 been followed in later
In a trial between tha u- i.
Kent, daring a ter;esf:,^tP."^ ^^ •""" '"^ E-' "^
»dves. and some person said to 0*/^" ''T'''' "''"'-
youact; for the matter of theVJ,' ^*^*"ohow
of the Bishop," and induced fct '?'""' '^'"^ ""^ -"-tter
the jury f„„nd a verdic f„r ?k'° '"f ' "■"" "f-wa^ls
that the verdict was" tit r^' " ^"^ "^W
■nducement which was mad; fo her;"^"^'^ '° ""«
the verdict had been the otLrJ .'^''f^dant; but, if
^tood; for it would beTusXls ^^; " 7"'" "" '^'^
-e was repeatedly Sefbetelfb '''f' ^^ ^"'^
benches; and it was held th! 7/1 ^'' •""'«"' "'l^th
« verdict for the party „ wh ^'Z''""""™ hetween
Pa«y, ,n whose favor the influence
(
r j
Mil
R M
, QJ2 PBOCEDDRI ACT.
area.,.' MSS. «o<. en ne» trial, and .«.ire de «o»o.
diet tor h.m showed that 'h^™ ™» j^^,, „„, „„
but the ™rdicl^.''«""wt^d to have heen held
favor towards h.m ; and it ^o" »'" ^„ ,.„„„d »
that, it a man gave ^"^^y ^J^l l.i it wonld
verdictagainsthim, the verdct - S^^^^^^ ^^^ j^.^_
have been otherwise if the verdict
T .J Wolo infers from this case that it tne juy »»
Lord Hale inters u» ™aoner, and the vcnhct
drink "at the charge o. the Pn'™'='' ^ g^^
set aside, and a new trial awarded. -2 Hale,
'''';r;r:avtr^a:af;h"^^^^^^^^
rrerhr;ernrthow..ca^.^,-«^^^
r' ' T,:!™ ^C'c -r^e^^^^^^ '^^-e jury
SrSnel^nd^new venire was awa.. -o„.
P„.( 27 Ihis record was produced m comt.
o Metcalfe v. Dear., Cro. El. 1«9. a witnes.
deLdaut «/s called hy th^ iu^ *^ tl^ri^::
nCtar:r;Cbre"nr:;.t. and not difleren,
""utttmZ verdict tor the defendant, and the court
^mS rl^iict was not good hecau. C-^d.g^^
BoUe) " it is «o( e^ta^nly inmm. to the court^
to was the same evidence as was given at bar. -.B«m
Tbrn-0,1^1. n, who says he had s.ea this rccovd.
I!i!l!
IP
PROCBDURE ACT. JQIS
Qreavc' MSS. note on new trials and venire de novo.
Now these cases clearly show that if there be any rea-
sonable ground to suppose that the jury may have been
improperly influenced, the verdict will be set aside ; and the
influence need not be created by the party in whose favor
the verdict is given; for where handbills reflecting on the
plaintiffs character had been distributed in court and shown
to the jury on the day of the trial, a new trial was granted
against the defendant, though he denied all knowledge of
the handbills.— Cosher- v. Merest, Z B <k B 212 R v
Wooler also is a distinct authority that a reasonable doubt
of the correctness of a verdict is a sufticient ground for a
new trial in a criminal case.
Now let us see what the Murphy case is. It is distinct-
ly stated that the jurors were allowed the use of news-
papers containing the heading "The South Creek murder"
ftnd stating that a witness was cross-examined and not
Bhaken. This clearly was matter that ought not to have
been seen by the jury: as its tendency was against the
prisoner ; and the verdict was against him. It is impossi-
ble to conceive that any judge would have allowed the
jury to see these papers. The case clearly comes directly
withm the principle established by all the authorities.
J:he decision on this point, therefore, was undoubtedly
erroneous.
The supreme court had ordered a proper entry on the
record (m accordance with the authorities) that the jury
were improperly allowed the use of the newspapers Yet
the Privy Council entered into a consideration of the docu-
ments, on which the supreme court acted. This is directly
contrary to Graves v. Short, and in subversion of the rule
that nothing but the record itself can be considered The
ground on which the Privy CouncU considered these docu-
h 1 '<
!il
i J
I -
i ;
|:
!
'■''-
1
'
^!
k
H
li
-
w^
"Mm
^
F"
n
1014
PROCEDURE ACT.
Greaves' M88. note on new trials and venire de novo.
ments was that they were referred to them with the case
by the crown ; but it can hardly be maintained that that
could make that lawful to be acted upon, which would
otherwise be unlawful.
Then tht v;ourt proceeded to show that the sheriff and
his bailiffs are not like a party in a cause ; but that really
•was not the point. The true question was, had the jury
access to papers which might improperly bias their minds.
I now pass from A. 0. v. Murphy. It is well next to
consider the supposed authorities for saying that there can
be no new trial in felony. — In B. v. Mawhey, 6 T. B. 619,
four defendants were indicted for a conspiracy, and two
of them acquitted and two convicted ; and one question
was whether a new trial could be granted as to the two that
were convicted without the others ; and it was contended
for these defendants that a new trial ought to be granted
wherever there would be a palpable defect of justice if it
were not gi-anted. On the part of the crown, cases were
put to show that a new trial could not be granted in many
cases, in which there might be a palpable failure of justice.
Thus if a defendant, unquestionably guilty, were acquitted,
the court could not grant a new trial. So also if a defen-
dant be convicted of treason or felony, though against the
weight of evidence, there is no instance of a motion for a
new trial in such a case ; but the judge passses sentence
and respites execution till application can be made to the
mercy of the crown. It is clear that this passage refers to
cases of conviction on the crown side at the assizes, and not
to cases tried at nisi prius on King's Bench records ; for
until the 11 G. 4 & 1 Wm. 4, c. 70, s. 9, sentence could
not be passed on a conviction at nisi prius ; and the hard-
ship in so large a number of such cases was quite sufficient
1015
PROCEDURE ACT.
Oreave,^ MSS. note on neu, trials and venire denooo
for the argument on the part of the crown. Again the die
tum merely asserts that no case of a new trid haTb „
found where .t had been moved for on the ground of the
venl.ct be.ng against the weight of evidence ; Ihich is a fa
narrower assertion than that no new trial could be granted
m any case of felony ; and very nearly amounts to t .
miss on that m some cases of felony, a new trial mi.ht he
granted Then Lord Kenyon, C. J., plainly referrh. to
th^s d^ctum, said "in one class of offences indeed, those
greater than misdemeanors, no new trial can be granted at
all. This d^ctum must in all fairness be limited to the
poin put by the counsel for the crown; otherwise it i
clearly too wide. This dictum, entirely separated from the
context, has been cited in Corner's 0. P. 161, and elsewhere
as warranting the general proposition ; and I will apply
the dictum of Cockburn, C. J., in Winsor v. R U IT
189 10 Cox. 276. to it. " This loose d..tum has been copied
servilely by text writers into their books until it has come to
be regarded as an authority." The only other case cited l.y
Corner IS Bright v. Eynon, I Burr. 390 ; but there is not a
word as to a new trial in felony in that case. But this case
and R V Mawhey are as strong authorities as possible that
the court will not yield to the mere absence of precedent
in opposition to the claims of justice ; but will grant a new
trial where the ends of justice cannot be attained without
It In a note, 13 East, 416, it is said "in capital cases at
the assizes if a conviction take place upon insufficient evi-
dence, the common course is to apply to the crown for a
pardon ; but "I am not aware of any instance of a new
trial granted in a capital case." The context shows that this
means a case tried at the assizes.
In the same note, it is said that in Tinckler's Case, 1 East
i'i
nl
1016
PHOCEDUKE ACT.
Oreavea' MSS- note on new trials and venire de novo.
P. (7. 354, it seemed to bo the opinion of the judgea that
a new trial could not be granted in felony. Neither in East
nor in 1 Den. p. V. (preface) is anything of the sort men-
tioned ; and it is difficult to see how such a point could have
arisen. The prisoner was tried at Durham for murder ; and
a case was reserved as to the admissibility of certain dying
declarations, and the judges held the conviction right. It is
clear the judges could not grant a new trial; and, if any
thing as to a new trial was mentioned, it was wholly extra-
judicial, and all it could amount to was that where a case
was tried on the crown side at the assizes, no new trial
could be gi-anted by any other court. The truth is that
all that has been said on this subject refers to cases tried
at the assizes or quarter sessions ; and, as there are no means
of bringing the facts before the Queen's Bench on error or
by certiorari, of course that court cannot grant a new trial.
The supposed general rule doubtless, originated with these
ordinary cases at assizes and sessions; but, like other
general rules, it is subject to the exception of the very
rare cases in the Queen's Bench. The following cases of
misdemeanor well illustrate the matte.". In R. v. Oxford-
shirSj 13 East 411, the defendants were found guilty of
the non-repair of a bridge at the assizes, and a motion was
made for a certiorari to remove the indictment into the
Queen's Bench in order to move for a new trial ; but it
was held that it could not be done, as the court could
have no information as to the merits. R. v. Nichols, Ibid,
notep. 412. So where the defendants were convicted at
the quarter sessions for the non-repair of a bridge, the
court at once refused to notice a case which had been
reserved for their opinion. R. v. Salop, 13 Ea^t 95. Again,
iuR. V. Winsor, 14 Z. T. 201, 10 Cox, 276, Blackburn, J.,
PllOCEDUBE ACT. jjjy
«.«»«• MSS. no,« „, „.„ ,„.„,. „„a „^,„ ^ „„„„
This remark was made with roferonce to a 0..I I r 1
..seless to dm„ ,„„h a dWoction a, to h/feofrh ""^
not being before the ,.n„rf if . "" ""> '""'' being or
decide upon thl ' " "" '^ <=™''' «•» <=<»"*
Queen. Bench cannot g™„t a new trial either in Ltde
roVhirLr'birrttrr '"^''' "
new tnal m all cases of misdemeanor (whether on th!
ments or otherwise) where the trial is on a record oU a
court; and also, in all cases of felony ,o tried for Inv
irrn:^;^"^'"''"^'"''''-^'^-"-''--^^!
at ICIT Th^ "^ ""'"" °«"*'' «°»'"'»«">le notice
at tue time. The pnsoner was charged with stealing H,„
money of his mistress at Exeter, co„;icted andt^ Zld
to 14 years- transportation; but this judgmenrwas
revereed on error. S. v. EUU, 5 B.JiO 395 TjflT
"hiLlhe" Tr"^ "' ''' pSicf ;rs
r f .1 ""'""'n™' ™' removed into the Kind's
Bench, and he was tried at nisi prius by a jury of "ho
County of Devon, and again convicted ; and'X Z
I'
1018
PROCEDURE ACT.
Greaves^ MSS. note on new trials and venire de novo.
four first days of the next term a rule was applied for on
the ground that evidence of other stealings besides those
charged in the indictment had been improperly admitted ;
but the reports differ as to what the rule was. In 6 B.
& C. 145, it is said to have been a " rule for staying the
judgment." In 9 D. <fc R. 176, it is said to have been " a
rule for a new trial;" and this is right; for I have
ascertained, from the crown office, that that is the entry in
the master's book. Lord Tenterden was present when the
application was made, and heard the grounds of it stated,
for he remarked upon them ; but as no motion can be made
in felony, unless the prisoner be present, the application
was postponed until he was brought up for judgment on a
subsequent day, when it was renewed and fully argued
before Bay ley, J. and Holroyd, J.,on the part of the prisoner,
but the counsel for the crown was not heard. Here then
we have a case of felony, in which a rule for a new trial was
applied for, argued, and decided on the merits, and not a
doubt suggested as to a new trial being grantable in felony ;
and it is clear that all these three great judges had no doubt
on the subject, otherwise they never would have listened
to the application or heard it solemnly argued ; but would
have instantly stopped the motion, as was done at once in
jR. v. Oxfordshire and R. v. Salop. This case occurred
in 1826, when Lord Campbell and Cresswell, J., very
probably were in court; the one then being in great
business in that court, and the other, being joint reporter
•with Barn wall. This case clearly was a good precedent
for R. V. Scaife, and it proves how unfounded is the
statement in the judgment in R. v. Bertrand that no such
application had ever been made before that case ; and, as
that erroneous supposition was the foundation of that
PROCEDURE ACT. iqiq
Greaves' MSS. note on neu, trials and venire de novo
judgment, it shakes that decision to the greatest extent. It
equally negatives the doctrine that no new trial can be
granted in felony; for the more that doctrine is supled
to have prevailed, the more unaccountable is it thT he
apphcation should have been entertained, unless aU the
judges were clear that the doctrine was erroneous
th« O ^'^ ^T''^l '^' indictment had been remo'ved into
the Queen s Bench and was tried by Cresswell, J., at York
when two of the prisoners were convicted, and on. acqui''
ted Cre.sweU, J., had admitted the deposition of an absent
witness, subject to the objection that it could not be
evidence against two of the prisoners, and he pointed out
that the question ought to be raised in the Queen's Bench,
as the record came from that court.-(2 Den. 286 ) Now
It IS quite impossible to suppose that CressweU. J., would
have taken this course, unless he was of opinion that that
court could .et the matter right, and the only way in
which It could do so was by granting a new trial ; and the
only reasonable inference is that that great judge had no
doubt that a new trial might be granted in felony, and I
have little doubt that the similar course in R v. Ellis, as
to he admissibility of evidence, was in the mind of Cress-
well, J., when he reserved the question
Accordingly a rule nisi for a new trial was obtained
argued on both sides, and the rule made absolute b^
Lord Campbell C. J.. Patteson, J., Erie, J., and Coleridge
J. I^ota doubt was suggested as to a new trial being
grantable in felony. But after the judgment had beef
delivered it was suggested (acconiing to the Queen's
Bench report) that there was a difficulty as to what rule
should be drawn up, no precedent for a new trial in felony
having been found, on which Lord Campbell said "that
M f I
SM'i
! *i
i '
f
;■;• i|
1020
PROCEDURE ACT.
Greave£ MSS. note on new trials and venire de novo.
might have been an argument against our hearing the
motion." The court, after conferring with the master,
made the rule absolute. So that, having the question
directly brought to their notice, the court clearly thought
there was nothing in it. Probably the report is inac-
curate as to the difficulty about the rule. There could be
no difficulty in an ordinary rule absolute, as it would fol-
low the regular course ; but here, there was the difficulty
of making the rule absolute as to those prisoners only who
had been convicted, which was so much discussed in R. v.
Mawhey, in which it was decided that it might be done,
but no rule drawn up ; and probably this was the diffi-
pulty. See the rule in 2 Den. 287. The result of the
examination of these cases is that Lord Tenderden, C. J.,
Bayley, J., Holroyd, J., Lord Campbell, C. J., Coleridge, J.,
Patteson, J., Erie, J., and Cresswell, J., must have been
of opinion that a new trial in felony might be granted at
the time, when these cases were before them, and the fact
that neither in the one case nor in the other did the counsel
for the crown venture to raise the question, strongly tends
to show that, on all hands, it was considered perfectly clear
at that time that a new trial might be granted in felony.
It may be well also to consider the cases as to a venire
de novo after a special verdict in felony, as the only
material difference between it and a new trial seems to be
that a venire de novo is only grantable for something that
appears on the face of the record, but a new trial may be
granted for a variety of causes in addition, which never
appear on the record. — 1 Ghit 654. It is clearly
settled that a venire de novo may be granted for error in
the proceedings, which is not upon the merits. As to a
venire de novo on the merits, in Trafford v. R., 8.
PROCEDUEE ACT. jQgl
«•«,.«. MSS. nou o» n^ «»& and We * „„„„
spell v!rl: :« t * T" "" ^"'^<'- "»-- ">«
sidered the facts, and d oWe"tS' Tn^'T^'
1 i lU^yr.. 138. the questiorw^ ° wtf " "1
veniict showed that the priaooer waLmf of T""^
manslaughter. On the fi4 a^umlnt HoltV t /' °I
the veMict i, i^perfeo, no jnCn ^nl"^-/;: fn: a
venire de novo ought to issup »T o ^ i^^ I ^ ' ^' *
J., held the .ame.° At tieend'of he '"' / ""' ''°''^^^'
i«d«™nt was given on'rlr/o^fTw SdTn\h:
special verdict : but Holt P T f i ""■"^/a^sea on the
the indictment; andl ^; we^'t^rd^'tr'T '"
«•%, 3 P. Wm. 499, L^rf aSok ' n j \^r
::.rh^::rin":rr ^^^^ "^ --- "
-, r- Hoitt,"e;cXTo^rndrenl"^ ^S
seems to be a misapprehension both as to thertavin. I
any such donbt, and as to Lord Holt ha i^Tatdd
™ter, as «..„„ ..w..' had J^:^ ^^^^
omform the justices, that they do not'err/'-lXv/J
29. The rf»c<a, therefore, of LoidHolf P i j .f" ,
two justices are unshaken ; a^ Tm^l^V » " ^ "*"
ance with them; so also in bampMlyR^'.^" '" "T"*'
^--„ftheC„urtofQnee^ttnt.rr::er::
A-l
J-.
1022
PROCEDURE ACT.
Greaves^ MSS. note on new trials and venire de novo.
questioned, that a vt.dre de novo will lie upon an imperfect
verdict " in felonv : per Blackburn, J., R. v. Wi7i8or, 14 L.
T.203; 10 Cox, 276. It is clear that in every case of
a special verdict, the merits of the case are considered,
and if they are sufficiently stated, judgment on the one
side or the other is given, but if they are insufficiently
stated, a venire de novo must issue. In i2. v. Sykes, T.
Raym. 202, in an information for perjury the record of
the trial, on which the perjury was committed, varied from
the statement of it in the information, and at the assizes, it
was found specially. It was 1 id that the judges at the
trial ought to have determined it, and that a venire de
novo ought to issue. This case is a clear decision that a
venire de novo ought to issue upon the merits. It is just
like the case of admitting or rejecting evidence improperly,
which in civil cases is a ground for a venire de novo :
Davies v. Pierce, 2 T. R. 125. And in Campbell v. R., U
Q. B. 824, it was ass rted that there is no distinction on this
point between criminal and civil cases. If then a venire
de novo can be gi'anted on the merits in felony, it strongly
supports the powers of granting a new trial on the merits,
for the difference between the two really consists merely
in the form in which the question is brought before the
court.
A sort of vague notion seems to have existed that there
was some distmction between felony and misdemeanor on
•ihese questions; and the dictum ofLordKenyon, C. J., in
R. V. Mawhey, referring to "a class of offences" "greater
than misdemeanors " may have given countenance to this
supposition. But any such distinction is clearly unfounded,
for there is no doubt, whatsoever, that in every case
of felony where there is any fatal formal defect, a new
PROCEDURE ACT. jqjo
it was well obaerved by CockbL j aTr^- '■"*
w.th reference to R. v. i,„w,<,„. 2 i^ TF^i^'lT!^
i3 very true that that was a case of mi,H ' ' "
is a case of felony ■ but I ™n M "'*'"<^'«'»'-. and this
between the two'^e rf c^ 3" 't^^^ ^"'l''-
same, and the principles on Xh ft t tot ^/'^.'' **
-re.stinpoint^:;;:----^^^^^
a.?rrr '? -"-" ue::io:ir:^^
Xr,r : n?wt:ir-r :rb:r r
merits and for .atte. of for., and in f'onTd^ I'at^
tuej snouia De no such dowpt nn fVia »,,«..
questions on which the guiirrinnolnce thT""'""''
»ay t„™. although it exits in thel: rp^r^t SlIZ
wh,ch :n no way whatever bear on his guiU or innoce^"^
SPECIAL PROVISIONS.
giving or Li, a„.i d/ci«„„ o„;";r„r, i"i:;r:Lr"r^
decimoD, whenever given, shall h*. n«„o-j j ^' ' ""'^ ^'^
Of the trial.-4(i F., 1 To" ^1! ^^'^^''^^''^d ^s ,f given at the time
i
ri! I
'IN.^
r' f 31
1024
PROCEDURE ACT.
270. The practice and procedure in all criminal cases and matters
•whatsoever in the said High Court of Justice shall he the same as the
practice ami procedure in similar cases and matters, before the
establishment of the said High Court. — 46 F., e. 10, s. 2.
271. If any general commission for the holding of a court of assize
and aiei prii'.s, oyer ap.1 terminer or general gaol delivery, is issued by
the C ! ■ General for any county or district in the Province of
Onter; . commission shall contain the names of the justices of
the supit.ue court of judicature for Ontario, and may also contain
the names of the judges of any of the county courts in Ontario, and of
any of Her Majesty's counsel learned in the law, appointed for the
Province of Upper Canada, or for the Province of Ontario, and if any
any such coratnission is for a provisional judicial district such com-
mission may contain the name of the judge of the district court of the
said district :
2. The said courts shall be presided over by one of the justices of
the said supreme court, or in their absence by one of such county
court judges or by one of such counsel, or in the case of the said
district by the judge of the said district court. — 46 V., c. 10, s. 4.
272. It shall not be necessary for any court of General Sessions
in the Province of Ontario to deliver the gaol of all prisoners who are
confined upon charges of simple larceny, but the court may leave any
such cases to be tried at the next court of oyer and terminer and
general gaol delivery, if, by reason of the diflSculty or importance of
the case, or for any other cause, it appears to it proper so to do. — C. S.
U. C, c. 17, a. 8.
273. T'' any person is prosecuted in either division of the high
Court of o ustice for Ontario, for any misdemeanor, by information
there filed or by indictment there found, or removed into such court
And appears therein in term time, in person, or in case of a corporation,
by attorney, to answer to such information or indictment, such defen-
dant, upon being charge! therewith, shall not imparl to a following
term, but shall plead or demur thereto, within four days from the
time of his appearance ; and in default of his pleading or demurring
within four days as aforesaid, judgment may be entersd against such
defendant for want of a plea.— C- 8. U. C, c.108, *. 1.
274. If such defendant appears to such information or indictment
by attorney, such defendant shall not imparl to a following term ; but
a rule, requiring him to plead, may forthwith be given and served,
and a plea to such information or indictment may be enforced, or
PHOCEDUHE ACT. 1^25
judgment in default may be enf«r»«^ • ...
have been done formeriy^nca";:,'!,^'^"^ '^^^"^^ •»« might
toauch information o^ ^T::::^^^^^^^^^^^
but the court, or any judge thereof. upCuffi^'" a previous term .
that purpose, may allow further time T ^f !f"' '*"'« «'^°«'" ^or
demur to .uch information or ind^enT-Ic; Vr?".'"'' *^ P'^*^ «'
o. t/. 0., c. 108, *. 2.
twelve months ne.t after the plea oj It ul^' ^^ri.l^m^
thereto, the court in which suchCsecutl^''^''^' been pleaded
cafon made on behalf of any defendrnr 'I'^^P^^ding, upon appli-
apphcafon twenty days pSs'^^n^ir'stfi^^^^^''^"' «^-S
AtorneyGeneral,maymakeanorder a^J ^"'" *^ «»«£
brmgon the trial of such prosecutLn ^„d I"'"' '"''^ '^''^"'^^"^ ^
may bring on such trial according lyTinlss a J/^'" '"'^ '^^'^'^^^''^
to such prosecution.-G ^. U. cf/c.loiTl ^''''*'*"'''^"'^'-«^
276. In the Province of Nova Spnf.-o „ , ,
cases shall be sent by the clerk of the CroVnTn :."" '''^' «"'«''^*1
term, together with the depositions LkenTni^^'""'*-''''^ '"^"°'^
of the different witnesses, and the inSicTmentsl T *"^ ">« "^'"^^
except in Halifax, until the grand tr? .'" °^* ^' '"^'^^ out.
(3rd S.), c 123, ,. 17. ^ ^""^ ^"^ directs. -.JJ?. ^. jy £
277. A judge of the supreme rnnrt «*• xt
convicted criminals on any ^70^ the s ttin^'T^?'* '"^^ «^"^«»c«
term time.~ii?. S. iV. ^. (3rdS.I c m";.^;.** "'"*^' *« ^^'^ «« i»
GENERAL PROVISIONS.
the '^^:^^::i:n^^^^^^^^ ^o this Act, or forms to
of indictment contained i„ he strntLhr "1 ^'T' ^"'^ ^'^^ ^--«
used, and shall be sufficient as res^" he Ita ' ?" ^"^ "^^ '^^
they respectively relate; and as ZZT T ^^^""^^ *« "'hich
euch second schedule, the said or?nT2ir!r'' "'* "^^""^--^ -
the manner in which offences are To be cL/ '' ' ^"''^^ ^ «''«^
Plusage and verbiage, and the averment of m'^f/ '" " *" *^^'^ «--
be proved, and the indictment ehal be lij f . """^ "'"'''"^ *^
-. the prisoner will sustain ^^r^\:£:;^:^^
QQQ '
/r,
1026
PROCEDURE ACT.
and the ofFence or offences intended to be charged by it can be under-
stood from it.— 32-33 F., c. 29, s. 27; and c. 30, s. 66.
279. Nothing herein contained shall alter oraflfect any of the laws
relating to the government of Her Majesty's land or naval forces.— 32-
33 v., c. 29, s. 137.
The enactment in section 278, so far as it relates to the
forms contained in the first schedule, is taken from the 11-12
v., c. 42, 8. 28, Imp. The cases of Barnes v. White, 1 C. B.
192, in re Allison, 10 Ex. 561, E. v. Johnson, 8 Q. B.
102, and R. v. Sansome, 1 Den. 545, seem to support the
contention that where a statute gives a form it is suffi-
cient to follow it. In R V. Johnson, uhi supra, however,
it was said, by the judges, that a statutory form is
insufficient, if it does not give a complete description of
the offence.
In R. V. Kimher, 3 Cox, 223, the judges doubted if a
certain document under the Jervis act was sufficient
though it had been drawn exactly in the form given by
the statute. In Egginton's Case, 5 E. <& B. 100, it
was held that if a form is given by a statute, it can be
followed. — So, in R. v. Bain, Ramsay's App. Cases 191,
for perjury ; and R. v. Davis, 18 U. C. Q. B. 180, for false
pretences.
REMARKS ON FORMS IN THE SECOND SCHEDULE.
Murder and Manslaughter. — Venue in the body of the
indictment unnecessary. S. 104, Procedure Act.
Bodily harm. — Venue unnecessary. — Indictment under
sec. 8, c. 162 need not aver " and did thereby cause bodily
harm." — But if it does " grievous bodily harm " are the
words of the section. — Then " with intent to commit mur-
der," or "with intent feloniously, wilfully and of his malice
aforethought to kill and murder '' are necessary.
See R. v. Carr, 26 L. C. J. 61.
FROOEDDKE ACT.
iJape. -Vemio unnecessarv in" • "^'
iJo6fery._Thi, fa a form undefsec qf; T^^'^^'y-
bad, even after verdict. See r 1^ ^'f'"^' ^'^ f°™
Stealing mo««y._steaIm<j m
undersec5„ftheZar,.„2,4:«72To" f""*"'' ^'"^■'y
given for simple larceny in thia s'.L , ""^' """^ "'« *■»"»
trou. the person is covLdt if ot :,?:%' "" ^'^-^-S
p. 315 «^, and this form do' s ntt c v/r t' sTT" ^'*'
property or any money the valne of 1 i ^^"^ ""7
covered by sec. 86 of'the W^^^'f « "^ f is
ttas form, ,f intended to fall under ttf^,' "*' ""^
aUege that the sum of money stokn»r °"' '''°»W
«...fc»«»*._Sea ^rCt™ ; ssr'''''^ *^«"-
seo. 52 of the Larceny Act ^' ^' ""'*• ""det
bet'rtCl^r^'^' '"^ "'^ '^^ P-'ences shoul.
^^See. p. 420, <t„^, smarts under sec. 77 of the X„.«,
*"rs^ ;^it::rr/r;-— in«
581. This decision was hefZTti.f\: ""'''' ^ ^' ^•
that, after ver^, .nZ^^ZtlkT^, t"' ^°^^^«
is sufficient. ^ "" *^® ^°^^« of the statute
In ii. V. Goldsmith, 12 C/oa- 4'7Q ,v • •,
question whether such an indf.f I' '' '^'^ ^^^'" *he
the false pretencerwoud Te sufficT ^ ''''"' "''^"^
^-otheen^aised. See ^^ ::S;T; ti ^ "'
I <*.
«
I
1028
VROCEDUKE ACT.
In Ontario and Quebec, before the Consolidation Acts of
1869. sec. 35 of ch. 99. C. S. C. expresBly dispensed
with the necessity of setting, out the false pretences m aU
indictments for obtaining by false pretences ; but this clause
has been repealed by the General Kepeal Act of 1869.
Offences against the haHtation.-See proper form under
sec 2 of c. 168. p. 558, ante.-The word "unlawfully is
wanting. The statutory offence is therefore not covered by
this form. . ,. , . a
InRv Davis, 1 Leach, 493, the indictment averred
that the defendant unlawfully.rruiliciously^nd felonious,
ly did shoot, etc. The words of the statute creating the
offence charged were. " That if any person shall m^u^^j;
^ndniamously shoot he shall be guilty of felony.
As the word " wUfully " was not in the indictment, it was
held bad. ,,,.,.. .t i. _
So in R V. Cox, 1 Leaoh, 71, it was held that the term
« wilful " in a statute is a material desciifftion of the offence,
and that an indictment for such an offence must necessa-
rily aver that the act was " wilful" or done « wilfully.
« Qmd voluit dixit, said Patteson, J., in R. v. Bent, 1
j)en 157 • if the Legislature has said that the doing such
an act wilfully shall be an offence, the iridictment must
charge the defendant to have done it wilfully. That the
words of the statute must be pursued is a safe and certain
rule ; an inquiry whether other words have the same
meaning, must be precarious and uncertain. "
So in iJ. V. Turner, 1 Moo. C. G. 239. it was held that
if a statute makes it criminal to do an act unlawfully and
rmliciously, an indictment must state that it was done
unlawfully ; stating that it was done feloniously, volunta-
my and maliciously is not enough. So an mdK3tment
charging the prisoner with *< feloniously, wilfully and
PROCEDUBE ACT,
1029
maliciouBly cutting, is defective, and judgment will be
arrested upon a verdict thereon, if the stetuto creating the
offence uses the word « unlawfully."^ M. v. Ryan. 2 Moo.
U o. 15; ii. v. Levjia, 2 Ruaa. 1067
Malicious injuria to properf,,^nis form is under
sec. 4 of eh. 168 p. 562. ante.-Tke word «' unlawfully -
IB wanting. Also the words "with intent to defraud'' or
injure. "—Bad, even after verdict
Forgery -See general form, ante, p. 484, ante, for
forgery under statute, and p. 486, ante, for forgery at
common law, and under sec. 28 of Forgery Act p 512
ante, for forgery of a promissory note
Coining.-The words "intent to defraud" are a surplu-
sage m the count for counterfeiting undor sec. 3 o 167
p. 537. ante.-The last part of this form is for a misde-
meanor under sec. 12 of c. 167. p. 544, ante, and is not
m the words of the statute.
Subornation of perjury.-The woi^s "aforesaid upon
their oath aforesaid" should be inserted after the words
" and the jurors." Each count is a sepamte presentment,
and every presentment must appear to be upon oath.-l
Chit. 2^9; Arohhold,73.
Offences against t. puhlicpeace.—Thk form is en
tirely defective. It Is under sec. 9 of c. 147, p. 35, ante,
and the words unlawfully and feloniously are omitted.
See proper form with that act, p. 36, ante.
Offences against the administration of justice —This
form is presumed to cover the offence created by seo 89 of
the Larceny Act, under which, p. 459, ante, see a proper
form. ^
The present one has not the word " feloniously " Then
it does not allege that the defendant has not used aU due
diligence to cause the offender to be brought to trial
111
.H i
■ll
- 4 ;
I
J
1030
PROCEDURE ACT.
This is an exception, and a well established rule of
pleading directs that if there be an exception contained
in the same clause of an act creating an offence, the
indictment must show, negatively, that the defendant
does not come within the exception. — Archhold, 62.
^if/arn^/.-— See form, p. 76, ante, under c. 161.
The two last counts in this form of the second schedule
are for offences under sees. 1 and 3 of that act.
Offences relating to the army. — This form is to cover
the offence created by sec. 1 of c. 169.— It is entirely
defective. — It should allege that the accused was not
an enlisted soldier in Her Majesty's service or a seaman
in Her Majesty's naval service. Then procuring a soldier
to desert is too general His name must be given, if
known, or if unknown covered by the usual allegation
in such instances.
Offences against public morals. — Defective. — Under c.
157, s. 8, p. 71, ante. — See form in Archhold, 935. Sec.
140, Procedure Act, applies.
FIRST SCHEDULE.
to ToTijT'proI^utZ " r??"'"* "^^'^ '" «»■ 30
\i
SECOND SCHEDULE.
FORMS OF INDICTMENT.
Murder.
County (or district) ) The Jurors for our Lady the Quoen
of , to w.t : j upon their oath, present that A. B . 'on
the day of in the year at in fi 7
aforethought, kill and murder one C. D.
Manslaughter.
County (.r distriet) ) Same as laH form, omitting " wilfully
fv r ;. iu f '"? °*^ °^^"«« aforelhought,^ and S
«^i<M<in^ <A6 worti " slay "/or <Ae «,ord «« murder!"
5o(iiZy -ffarm.
County (or district) ) The Jurors for our Lady the Queen
of , to wit : \ upon their oath, present thJt J B. on
Zl . *'\ , '/* , did feloniously administer
to (r cause to be taken by) one A. B., poison (o other des-
tructive thing) and did thereby cause bodily harm to the said
A. B,, with intent to kill the said A. B. (or C. D.)
Rape.
County (or district) ) The Jurors for our Lady the Queen,
»;n f 1 • *V^ . , : ** ' ^y ^"^^^^ *°d against her
vnll, feloniously ravished and camaUy knew C. D., a woman
above the age of twelve years.
Simple Larceny.
County (»rdUtriot) ) The J„„„ f„, „„ i„j ^ ^
L ' dayTf ' 7.; '''" "'*•. ■•:!""' ""' *• «•■ °»
wafcA, the property of C. D.
w»vu, ^xcocub wiai A. u.j on
, did feloniously steal a gold
1032
PROCEDURE ACT.
Eohhery.
County (or district) 1 The Jurors for our Lady the Queen,
of , to wit : j upon their oath, present that A. B., on
the ' day of , at , did feloniously rob C. D
(and at the time of, or immediately before or after such robbery
(if the case is so), did cause grievous bodily harm to the said
0. D.), (or to any person, naming him.)
Burglary.
County (or district) \ The Jurors for our Lady the Queen,
of , to wit: jupon their oath, present that A. B., on
the day of , at , did feloniously break into
and enter the dwelling-house of C. D., in the night-time, with
intent to commit a felony therein (or as the case may be.)
' Stealing Money.
County (or district) 1 The Jurors for our Lady the Queen,
of , to wit : j upon their oath, present that A. B., on
the day of , at , did feloniously steal a certain
Bum of money, to wit, to the amount of dollars, the property
of one 0. D. (or as the case may be.)
Embezzlement.
County (or district) \ The Jurors for our Lady the Queen,
of , to wit : I upon their oath, present that A. B., on
the day of , at , being a servant (or clerk)
then employed in that capacity by one C. D., did then and there,
in virtue thereof, receive a certain sum of money, to wit, the
amount of , for and on account of the said C. D., and the
said money did feloniously embezzle.
False Pretences.
County (or district) ) The Jurors for our Lady the Queen,
of , to wit : j upon their oath, present that A. B., on
the day of , at , unlawfully, fraudulently and
knowingly, by false pretences, did obtain from one C D., six
yards of muslin, of the goods and chattels of the said C. D.,
with intent to defraud.
PKOCEDURE ACT.
1033
Offences against the Habitation.
County (0^ district) J The Jurors for our Lady the Queen,
ot to wit: [upon their outh, present that A. B., oa
the day of , at , did feloniously and maliciously
set fire to the dwelling-house of C. D., the said 0. D. (or some
other person by name, or if the name is unknown), some persoa
being therein. ^' r
Malicious Injuries to Property.
County ("^district) | The Jurors for our Lady the Queen,
ot to wit: J upon tiieir oath, present that A. E., on
the day of , at , did feloniously and maliciously
set fire, or attempt to set fire, to a certain buUding or erection
that IS to say (a house or bam or bridge, or as the case may be,)
the property of one C. B. (or as the case may be).
Forgery.
County (or district) | The Jurors for our Lady the Queen,
ot , to wit: {upon their oath, present that A. B., on
*^® , ' ^^y «^ .at , did feloniously forge (or
utter knowing the same to be forged) a certain promissory note,
&c. (or clandestinely and without the consent of the owner, did
make an alteration in a certain written instrument with intent to
defraud, or as the case may be).
Coining,
County (or district) | The Jurors for our Lady the Queen,
ot , to wit: /upon their oath, present that A. B., on
the day of , at , did feloniously counterfeit a,
gold corn of the United Kingdom, called a sovereign, current by
law in Canada, with intent to defraud, (or had in his
possession a counterfeit of a gold coin of the United Kingdom
caUed a sovereign, current by law in Canada, knowing the same
to be counterfeit, and with intent to defraud by uttering the
same.) °
Perjury.
County (or district) | The Jurors for our Lady the Queen,
ot , to wit: Jupon their oath, present that heretofore,.
Hjlll
1034
PROCEDURE ACT.
to wit, at the (assizes) holden for the county (or district)
of , on the day of , before (one of the judges
of our Lady the Queen), a certain issue between one E. F. and
one J. H., in a certain action of covenant, was tried, upon which
trial A. B. appeared as a witness for and on behalf of the said
E. F., and was then and there duly sworn before the said
and did then and there, upon his oath, aforesaid, falsely, wilfully
and corruptly depose and swear in substance and to the eflfect
following, " that he saw the said G. H. duly execute the deed
on which the said action was brought," whereas, in truth, the
Baid A. B. did not see the said G. H, execute the said deed, and
the said deed was not executed by the said G. H., and the said
A. B. did thereby commit wilful and corrupt perjury.
Subornation of Perjury.
County (or district) | Same as last form to the e:id, and then
of , to wit : \ proceed .—And the jurors further present,
that before the committinj? of the said offence by the said A. B.,
to wit, on the day of , at , C. D., unlawfully,
wilfully and corruptly did cause and procure the said A. B. to
do and commit the said offence in manner and form aforesaid.
Offences against the Public Peace.
County (or district) ) The Jurors for our Lady the Queen,
of , to wit: jupon their oath, present that A. B., on
the ^ day of , at , with two or more persons,
did riotously and tumultuously assemble together to the disturb-
ance of the public peace, and with force did demolish, pull down
or destroy (or attempt or begin to demolish, <fcc.), a certain
building or erection of 0. D.
Offences against the Administration of Justice.
County (or district) ) The Jurors for our Lady the Queen,
of , to wit :— J upon their oath, present that A. B., on
the , day of , at , did corruptly take or receive
money under pretence of helping C. D. to a chattel (or money,
<fcc.), that is to say, a horse (or five dollars, or a note, or a
carriage), which had been stolen (or as the case may be).
PROCEDURE ACT.
1036
^^^^yorofferu:nagaAnstmLawfortU8olemnizati^n
of Marriage.
p., «• being daly authorized to marrv dfj I^l • .
between C. D and E. P. bef„.^rZ.«l ^tZaroS
0/mces relating to the Army.
County (or district) ) Tho Tum-c e -r ,
^oMie, to deee. tbe Qnee'n. .„.e [Z ^1^7™" «
. 0#«<;«8 againd Public Morak and Secemy
bawdy 0, d ..orderly h„„k (o, ^onle) " " '"""°°° ^"""^
General Form.
M '■
Riiii
h" ft ?■
1036
PROCEDUBE ACT.
THIRD SCHEDULE.
Whereas at (stating the session of the court be/ore which the
person was convicted,) held for the county (or united counties)
of , on before A. B., late of , having
been found guilty of felony, and j'xdgment thereon given, that
(state the substance,) the court before whom he was tried re-
served a certain question of law for the consideration of the
justices of (name ojf court), and execution was thereupon respited
in the meantime (as the case may be) : This is to certify that
the justices of (name of court) having met at in
term (or as the case may be), it was considered by the said
justices there, that the judgment aforesaid should be annulled,
and an entry made on the record, that the said A. B. ought not,
in the judgment of the said justices, to have been convicted of
the felony aforesaid ; and you are therefore, hereby required
forthwith to discharge the said A. B. from your custody.
(Signed), E. P.
Clerk of (as the case may be.)
To the sheriff of , and
the gaoler of , and all
others whom ii may concern.
32-33 v., c. 29, soh. A, and o. 30, sch.;—C. S. U. C, c. 112,
«cfc.; —C. S. L. C, c. 77, sch. A.; —R. S. iV. S. (3rd S.), c,
171, soh. ;— 1 B. S. N'. B., TithXL, a:d sch., Fom (d.)
]
CHAPTER 179.
AN ACT EESPECTINQ RECOGNIZANCES.
jg-ER Majesty, by and with the advice and consent of the Senate
XX and House of Commons of Canada, enacts as follows :-
1. Any surety for any person charged with any indictable offence
may. upon affidavit showing the grounds therefor, with a certS
copy of the recognizance, obtain from a judge of a superior court 5
from ajudge Of a county court having crLiLljurisdiSbn an o^d/r
in writmg under h.s hand, to render such person to the common gaol
of the county where the offence is to be tried.-l R. S. Tie
2. The sureties, under such order, may arrest such person and
dehverh™, with the order, to the gaoler named therein^ who shall
recen^e and >mpnson h.m in the said gaol, and shall be charged wSh
rTr/r^^ r;:?:."2:" '- '- ''-'-'-' '^ '- --«-'
3. The person rendered may apply to a judge of a superior court, or
,n cases m wh.ch a judge of a county court may admU to bail, to a
judge of a county court, to be again admitted to bail, who miy on
exam.nat.on allow or refuse the same, and make such order as to the
number of the sureties and the amount of recognizance as he deem!
meet,-wh,ch order shall be dealt with in the same manner a the
Nb!c\57, S3. '' "' "" '^'" ""' ^'^ '''' '^<l"^-«-l ^^ ^'
by the affi,av.tofa subscribing witness, that such person his been
80 rendered a judge of the superior or county court, as the case mar
be, shall order an entry of such render to benmdeon the recognizance
by the officer .n charge thereof, which shall vacate the recognizance
and may be pleaded or alleged in discharge thereof.-l E. S. N. B.',
nnfl; J^r'Tt'-""? ^"."^ *^' P"""'"" ""^^'^^ *« ^f«r««aid into the
court at wh.ch he .s bound to appear, during the sitt.ng thereof, and
then, by leave of the court, render him in discharge of such recogni-
sance at any tm,e before trial, and such person shall be committed to
!>'/
I i
1038
AN AOT RESPEOTING RECOGNIZANCES.
gaol, there to remain until discharged by due course of law ; but such
court may admit such person to bail for his appearance at any time it
deems meet. — I R. S. N. B., c. 157, ». 5.
6. The arraignment or conviction of any person charged and bound
as aforesaid shall not discharge the recognizance, but the same shall
be effectual for his appearance for trial or sentence, as the case may
be ; and the court may commit such person to gaol upon his arraign-
ment or trial, or may require new or additional sureties for his
appearance for trial or sentence, as the case may be, notwithstanding
such recognizance ; and such commitment shall be a discharge of the
sureties. — 1 B. S. N. B., c. 157, «. 6.
7» Nothing in the foregoing provisions shall limit or restrict any
right which a surety now has of taking and rendering to custody any
person charged with any such offence, and for whom he is such surety,
8. Unless otherwise provided, all fines, issues, amercements and
forfeited recognizances, the disposal of which is within the legislative
authority of the Parliament of Can.ida, set, imposed, lost or forfeited
before any court of criminal jurisdiction, shall, within twenty-one days
after the adjournment of such court be fairly en..ered and extracted
of a roll by the clerk of the court, or in case of his death or absence
by any other person, under the direction of the judge who presided at
such court, which roll shall be made in duplicate and signed by the
clerk of the court, or in case of his death or absence, by such judge :
2. If Huch court is a superior court of criminal jurisdiction, one of
such rolls shall be filed with the clerk, prothonotary, registrar or
other proper ofiicer, —
(a.) In the Province of Ontario, of a division of the high court of
justice,—
(6.) In the Provinces of Nova Scotia, New Brunswick and British
Columbia, of the supreme court of the Province, —
(c.) In the Province of Prince Edward Island, of the supreme court
of judicature of that Province, —
(d!.) In the Province of Manitoba, of the Court of Queen's Bench of
that Province and, —
(e.) In the Nortli- West Territories, of the supreme court of the said
Territories, —
On or before the first day of the term next succeeding the court by
or before which such fines or forfeitures were imposed or forfeited :
3. If such court is a court of General Sessions of the Peace, or a
county court, on: of such rolls shall remain deposited in the office of
the clerk of such court.— C. S. U. C, c. 117, ss. 1 and 2, part, 3 and
A, part. 49 V., c. 26, a. 14. 3 Geo. 4, c. 46, s. 2, Imp,
AN ACT RESPECTING BECOGNIZANCES. 1039
0. The other of such rolln aKoii
fce sent by the clerk of th cou' 1" W th" *'' """^ '' ^''^'^^'
death orabsence, by such judgrael'i-.T''^'" '" «=»«« ^^ his
and ca^^W, according to the form !n th^ J"i^* ^"^ ^' ^^' ^««'«*
sheriff Of the county in and f^r w V'^^^u"'" to this Act, to the
and such v^ritehal/beauthori: Jte TV^"^* "^« ^^'^^^^ ^
he ™.edia.e levying and L^r nV'r'^ '^^ PJ^-^-g to'
recovering of such fines,
issues.
amercements and forfeitwi ,.««^ . = -- =
chattels, lands and tetmltrrrT: °", ''' ^^^^ *^^
therem, or for taking into custodvLh^-!™^ P'™«"« »amed
tively, in case sufficient gooSsanl cht. ^f" "^ '"'''* P^"«»« '"^^Pec-
be found, Whereof the sumTtiru red c ^n b Ij " ''T^'"'' «* »-*
eo taken shall be lodged in theUmon lo, ofM ' ' '"'^ '"''^ P*"^'^
faction ,a ma,le, or until the couSTnt ^\ u ' ^°""^^' ""'.! satis-
able, upon cause shown by the partv"^/'*'"'^ ^"^^ ^"t is return-
an order in the case, and"^ untHldi Lr'^^l' ™'"''°'^^^' '"^kes
wh'o^\:;rraV^rrt^^^^^^^^
cute or give evidence in any'TaL "f ?! '" ^"""^^ *«P^««e-
answer for any common Lsauh 'w ^^.'''' '"•^^^'"eanor . or to
default, the officer of the cTurfbv L1??k"'' °' *'^ P«^«^' '"-kes
ehali prepare a list in writing, spiifvin^.' "'''''''' *™ '"^'^^ «»*
so making default, and th nature X' 1 ""' °' ^^^^^ ^^^^^^
such person, or his surety, was so £un,l f 7 '" '''P^'* ^'^ ^'"^'^
trade, profession or calL of everv " '^''^''''''^''^''^^'-^^^d^"^^^
shall, in such list, distinglh the ^Hnoi ,T'° ^"'^ ^"^^'^' '^''d
shall state the cause, if knTn, w^eTc ruc.f^'" H^esn,,,,,^, and
and whether, by reason of thl ^'' person did not appear.
7 ffeo. 4, c. 64, ,. 31, Imp. aeiayed.-G >?. C, c. 99, s. 120.
-ysr^:tS:^---g^^
at the court, or if such cour wa^ not prlsided . ' f "^"^ ^'''''^''^
two justices of the peace who attende/.T u ' ^^* J^^ge, before
or justice shall examine suchl and make « 'TT'' ^"^'^ J"^g«
estreating or putting in procelanv «.?t '^ °''^''' '^"^'^'"gthe
just, subject, in the Provinc^oTQueber o thT'""'"" '' ''^^'^
contained , and no officer of any such .1 f «^'«-0"« hereinafter
if
If'
1040
AN ACT RESPECTING RECOGNIZANCES.
or justices of tha peace before whom respectively such list has been
laid— C. S. a, c. 99, s. 121. 7 Geo. 4, c. 64, s, 31, Imp.
12. Except in the cases of persons bound by recognizance for their
appearance, or for whose appearance any other person has become
bound to prosecute or give evidence in any case of felony or misdemea-
nor, or to answer for any common assault, or to articles of the peace,
in every case of default whereby a recognizance becomes forfeited, if
the cause of absence is made known to the court in which the person
was bound to appear, the court, on consideration of such cause, and
considering also, whether, by the non-appearance of such person the
ends of justice have been defeated or delayed, may forbear to order the
recognizance to be estreated; and, with respect to all recognizances
estreated, if it appears to the satisfaction of the judge who presided at
such court that the absence of any person for whose appearance any
recognizance was entered into, was owing to circumstances which
rendered such absence justifiable, such judge may make an order
directing that the sum forfeited upon such estreated recognizance
shall not be levied. — C. S. U. C, c. 117, a. 6, part.
13. The clerk of the court shall, for such purpose, before sending
to the sheriff any roll, with a writ otjierifadaa ana capias, as direc-
ted by this act, submit the same to the judge who presided at the
court, and such judge may make a minute on the said roll and writ of
any such forfeited recognizances and fines as bethinks fit to direct not
to be levied ; and the sheriff shall observe the direction in such minute
written upon such roll and writ, or indorsed thereon, and shall forbear
accordingly to levy any such forfeited recognizance or fine. — C. S. U,
C.,c. 117, s. 7.
14* If upon any writ issued under this act, the sheriff takes lands
or tenements in execution, he shall advertise the same in like man-
per as he is required to do before the sale of lands in execution in
other cases ; and no sale shall take place in less than twelve months
from the time the writ came to the hands of the sheriff. — C- S. U. C,
c. m,s. 8.
15. The clerk of the court shall, at the foot of each roll made out
as herein directed, make and take an affidavit in the following foriu,
that is to say : —
" I. A. B. (describing hia office), make oath that this roll is truly
"and carefully made up and examined, and that all fines, issues,
"amercements, recognizances and forfeitures which were set, lost,
" imposed or forfeited, at or by the court therein mentioned, and which,
d.8charge su.h person out ofculj; ' V'v '^''•'^*''- o^^er eha]
appear ,n pursuance of hi« nnterS. T ^' '"^^ P^^«°" does no
a wr.t of >;.• facias and cap 11^,^ ''"'"' "'''^ ^«^thwithLue
person so bound as aforesaid!! a | 7 J^! ^"l^^^ «»• sureties of he
17. The court intnw)i;/.k
under thi. .et, is ^:^:::!::t;^;t:^:i;^ and .,.-., issued
the case and may, i„ ita discretion oX?h v ''^ «'''«» '"Stances of
the forfeited recognizance, or sum ofl ' '^"^''.'^'^'S^ of the wholeof
or eafsfaction thereof, ani make eucrrdT ^^ ''" '' ^' ^''^ '« ^ e«
appears just; and such order shall ^'^ ^^'■'°" "' ^ «"ch colr^
«l-ff. or to the party, acco^ ng tTthfci? ' '^ * ''^^^^^^^ ""^
19. A copy of such roll and «*
9ourt into which such return i made :Lan?':' I' ''' ''^'"^ «^ "-
totheMm,sterofFinanceandRe™eive; W^^^ rorth^ith transmitted
^verGeneral, With a minute thereon
■r! i:
1042
AN ACT BESPECTINO RECOGNIZANCES.
of any of the euinfl therein mentioned, which have been remitted by
order of the court, in whole or in part, or directed to be forborne,
under the authority of this act. — C S. JJ. C-, c. 117, a. 13.
20. The Bheriff or other officer shall, without delay, pay o er all
moneys collected under thie act by him to the Minister of Fi lancT
and Receiver General, or other person entitled to receive the same.
— C. S. U. C, c. 117, *. 14.
QUEBEC. '
21. The provisions of sections eight and nine and of twelve to
nineteen, both inclusive, shall not apply to the Province of Quebec,
and the following provisions shall apply to that Province only.
22. Whenever default is made in the condition of any recogni-
zance lawfully entered into or taken in any criminal case, proceeding
or matter, in the Province of Quebec, within the legislative authority
of the Parliament of Canada, so that the penal sum therein mentioned
becomes forfeited and due to the Crown, such recognizftnce shall
thereupon be estreated or withdrawn from any record or proceeding in
which it then is or a certificate or minute of such recognizance, under
the seal of the court, shall be made from the records of such court
where the recognizance has been entered into orally in open court:
2. Such recognizance, certificate or minute, as the case may be,
shall be transmitted by the court, recorder, justice of the peace, ma-
gistrate or other functionary before whom the cognizor, or the
principal cognizor, where there is a surety or sureties, was
l)0und to appear, or to do that, by his default to do which the con-
dition of the recognizance is broken, to the superior court in the
district in which the place where such default was mude is included
for civil purposes, with the certificate of the court, recorder, justice
of the peace, magistrate or other functionary as aforesaid, of the
breach of the condition of such recognizance, of whi'-h and of the
forfeiture to the crown of the penal sum therein mentioned, such cer-
tificate shall be conclusive evidence :
3. The date of the receipt of such recognizance or minute and cer-
tificate by the prothonotary of the said court shall be indorsed there-
on by him, and he shall enter judgment in favor of the crown against
the cognizor for the penal sum mentioned in such recognizance, and
execution may issue therefor after the same delay as in other cases,
which shall be reckoned from the time when the judgment is entered
by the prothonotary of the said court:
I
«• Such execution «).n]i • *^
7 - ...0 en.?; o^L'r;.~r/r«i° ~^ - ^ s
recovered by It ^f ^'■'"^^ "'' «"y re^j'tl T"^""^ °f
per.o„ or offl«, a^hj «<^°"«1 of Canada or oj O, .' """'""'•"
action i, ah.,, te Zt " ° '"' '''"• 'I" »'o»n .M "' ^ °*«
empowered ,„ todMn?,',' ""^ '"'~'' «"ing fir tW /° ""^ '»"'■
not performed, rd'l,'.','"' "'" ™'''«ion, of tl etcoT" " ''"'^
-.w.o„„/„„,i't^Z7anitr:ret---^^
7- In this section, unless th.n , ""^''^ =
sion « cognizor » includl- » "''^* otherwise requires n
n:~e.Wa,tt:X-Sl--^^^^^^^^^^
give evidence on such tH^I an^ \T '"'^ '"''' 'here to J Sf ?;
:'l!
SCHEDULE.
FORM.
Victoria, by the Qraoe of God, etc.
To the sheriflf of , Greeting :
You are hereby commanded to levy of the goods and chattels,
lunds and tenements, of all and singular, the persons mentioned
in the roll or extract to this writ annexed, all and singular the
debts and sums of money upon them severally imposed and
charged, as therein is specified ; and if any of the said several
debts cannot be levied, by reason that no goods or chattels, lands
or tenements can be found belonging to the said persons, respec-
tively, then, and in all such cases, that you take the bodies of such
persons, and keep them safely in the gaol of your county, there
to abide the judgment of our court (a« the case may be), upon
any matter to be shnwn by them, respectively, or otherwise to
remain in your custody as aforesaid, until such debt is satisfied,
unless any of such persons respectively gives sufficient security
for his appearance at the said court, on the return day hereof, for
which you will be held answerable , and what you do in the
premises make appear before us in our court (as the case may
be), on the day of term next, and have then and
there this writ. Witness, etc., A. B., clerk (as the case may be).
— C. iS. U. a, c. 117, sch.
The mere failure of the party to answer, when called, in
the term subsequent to that in which he was arraigned
could not operate as a forfeiture of his bail. The Atty.
General v. Beaulieu, 3 i. G. J. 17.
On an information against the biil or surety of a person
charged \/ith subornation of perjury, held, that after the
accused has pleaded guilty to an indictment, no default
can be entered against him, except on a day fixed for hii
" "^ ''*''""'° X-OOOKIZAKCB. 1045
api««m„oe, „„d that it i, the duty „f ,u
the recognizances iaa,,^^^, "'7 °f *^ <«<"* to estreat
A recogniznnoo taken before » ^ i-
32-33 v., c. 30, s. 44 D oZt H*^^"" '"'«"'"•"' '""'or
IIM. fatal, and that an'aetT ^ '"'"'' "'»°»'«':"
«. ft 566. X°«'>nce._it v. HoodkHs, 45 (T. a.
Beld, that the forfeiture of » ,
a debt sufficient to ,uplrt thi .^^r""** '° "PP»»' "«»
mcnt under the AbscondT„; n ItS TT 'T "" """""■
;nt may be gm„ted at the ,u,W t/ ' ""'' "'"' '"*
defendant absconds to avoid b.i„ ""■"""■ "^''^ "'«
A V. SteunH. 8 i". A ol* 2OT "'""' ''°' " '"'»-'^-
A recognizance of bail m.t i.1 . .
recited that be had been inic'ed aTt. "' " P™'""=''
.ession, of the peace for two ^11" T' "' general
condition was, that he should appeaTat tb """f ""• ""^
snid court, and plead to such in^ . " ""'" '"""S "f
againat him by the g,^ndt '; t th"' "^ "•'*"" "^ '""'^^
the accused did not ap^rl'd ' ™' l'""'*'""''^'-
found against him :-&«' ^f Z '"<"<*«'™t was
showed the intention to brthlt h ""'"'''' '"ffl"'^"^
and answer the iniiarl^^ZT^y/^o^'^ -^Pm^
order estreating the reeoom-,. ^ ""^ "'' "«" »"
iie e™^A„ J., mi^^TToJl '""^''^ ""^»-
5-eW, that on the return 'of a writ of ,•
recognizance is unnecessary._JJ \t ?*°'*" »
fleW, that since the naasinr. „f .i. t. .
v., c. 49, s. 8, there is Tl^f *' ^''""■"■°'' '^tute, 49
on removal by certiol^ fT ""r"' "" " '''""^'"'^
enter into recognizanr, 1. f """"o""" "gainst him to
; I
' ' ' < n
i "I
■ ,
ri- ^^
I
CHAPTER 180.
AN ACT EBSPECTING FINES AND FORFEITURES.
H
ER Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows : —
1. Whenever any pecuniary penalty or any forfeiture is ii.-posed
for any violation of any act, and no other mode is prescribed for the
recovery thereof, such penalty or forfeiture shall be recoverable or
enforceable, with costs, by civil action or proceeding at the suit ofHer
Majesty only, or of any private party suing as well for Her Majesty
as for himself—in any form allowed in such case by the law of that
Province in which it is brought— before any court having jurisdiction
to the amount of the penalty in cases of simple contract— upon the
evidence of any one credible witness other than the plaintiff or party
interested j :;nd if no other provision is made for the appropriation of
any penalty or forfeiture so recovered or enforced, one moiety shall
belong to Her Majesty; and the other moiety shall belong to the
private party suing for the same, if any, and if there is none, the
whole shall belong to Her Majesty— 31 F., cl, s. 1,part.
2. Whenever no other provision is roade by any law of Canada for
the application of any fine, penalty or forfeiture imposed for the
violation of any such law, the same shall belong to the Crown for the
public uses of Canada. — 49 F., c 48, s. 1.
3. The Governor in Council may, from time to time, direct that any
fine, penalty or forfeiture, or any portion thereof, which would other-
wise belong to the crown for the public uses of Canada, be paid to
any provincial, municipal or local authority, which wholly or in part
bears the expenses of administering the law under which such fine,
penalty or forfeiture is imposed, or that the same be applied in any
other manner deemed best adapted to attain the objects of such law
and to secure its due administration. — 49 F., c 48, s. 2.
4. Any duty, penalty or sum of money, or the proceeds of any
forfeiture, which is, by any act, given to the crown, shall, if no other
provision is made respecting it, from part of the Consolidated Revenue
Fund of Canada, and shall be accounted for and otherwise dealt with
accordingly.— 31 F, c. 1, s. 1,part.
™e3 and tokphtubes. 1047
cau8e of action arises, or after S .ff ^ ""^^"""^ '^^ ^^^''^ »"«r the
t-me is otherwise li„,ited by such act .!"" S uT'^'t ""l"^ ''''
C. ^. L. C, c. 108. ,. I, part, and , •> \1^S'?'' ''' ^^' *• ^> -?«»•<.
i'"'-^. 1 M. S. N. B, 0. 140, s. 2 ^" ^^ ^' ^^' ^'> <>' 1^> *• 15,
fi
CHAPTER 181.
AN ACT EESPECTING PUNISHMENTS, PAEDONS
AND THE COMMUTATION OF SENTENCES.
H
ER Majesty, by and with the advice and consent of the Senate
and House of Commons of Canada, enacts as follows : —
PUNISHMENTS.
1. Whenever a person doing a certain act is declared to be guilty
of any offence, and to be liable to punishment therefor, it shall be
understood that such person shall only be deemed guilty of such
offence and liable to such punishment after being duly convicted of
such act.— 32-33 F., c. 29, s. l,part.
2. Whenever it is provided that the offender shall be liable to
different degrees or kinds of punishment, the punishment to be inflicted
sliall, subject to the limitation contained in the enactment, be in the
discretion of the court or tribunal before which the conviction takes
place — 32-33 F., c 29, s. 1, part.
3. Whenever any offender is punishable under two or more acts or
two or more sections of the same act, he may be tried and punished
under any of sucli acts or sections ; but no person shall be twice
punished for the same offence.— 32-.33 F., c. 20, ss. 40, part and 41,
part, and c. 21, s. 90, part, 36 F., c. 65, s. 33. 40 F., c. 35, *. 6.
CAPITAL PUNISHMENT.
4. Every one who is indicted as principal or accessory for any
offence made capital by any statute, shall be liable to the same punish-
ment, whether he is convicted by verdict or on confession.— 32-33 V.,
c. 29, s. 82.
5. In all cases of treason, the sentence or judgment to be pro-
nounced against any person convicted and adjudged guilty thereof
shall be, that he be hanged by the neck until he is dead.— 31 V., c.
69, s. 4. 54 Geo. 3., c. 46, s. 1, Imp.
6. Upon every conviction for murder, the court shall pronounce
sentence of death, and the same may be carried into execution, and all
other proceedings upon such sentence and in respect thereof may be
HJNISHMENTS, PakdonS, ETC.
h«»d and taken in the """'''' ^^^^
O'tailtSLS T""^" '^" """""W before .„, , ,
^2-33 r., „. 29, ,. 106. "'" •' *« """Wier prided by law—
death, the judge beore^h'orrh ""*""' '' *^« P"-«hment of
forthwith .ake a report of the catrth"". '" '"" «^"-*«^ " «
nformafon of the Governor Zlr^l l^^'l'^jy ^' State, for the
for carrying the sentence into ex^, • t '^' ^''^ ^« ^^^ appointed
op.n.onofthe judge, winaIir«S^^^^^ such as'5: the
the Governor's pleasure before such da! '""f vT ''^^ ^'g^'fi^ation of
pn oner ought to be recommended lor' l' ''^'^^^^^^^ ^^'"ks such
rnercy. or ,f, from the n-decision of '•''"''''' °^ ^^e Royal
the case, or from any other cause itbl"^^''"* '^'^"^ '««^rved in
execut,on he, or any otherTudg; f ^T "'''''''' *^ ^^^'^^^ ^^e
have held or sat in such court, may frl "! ''"'"'' ^^'^ ^^^ '"^iht
or in vacation, reprieve such Sder f "i *''"'' '''^''^^ t«"^
beyond the time fixed for the execu"fo„ Zu""'^' ^'"^ «' Periods
sary for the consideration of the ^s bv ^^ '""'"""" '' ''^ "^«««-
*• 107. 36 v., c. 3, ;,. 1. ^'^ ^^ *^e crowD.-32-33 V., c 29,
A judgment may be alterpri of
medical officer or ,uCeo„ o/.J' '?' «'"'«' »"<! li« .ervaota, the
;«lie»„, „,a„ have aC ,o fnl Si" "'?'°'° " " ">'-**?
"■on, ,„ writing, of tl,e court or jLZ U "t "'"">»' «« permi,-
been tr,ed, „r of .he .heriff.-32-33 r f 2^ ""l'"" •"°'' °"'«' b"
W. Judgment of death to be ejecuM '
eieculed on m, prisoner ehali be
- ■!!
' I
1050
PUNISHMENTS, PARDONS, ETC.
carried into effect within the walls of the prison in which the offender
is confined at the time of execution. — 32-33 F., c. 29, s. 109.
11. The sheriff charged with the execution, and the gaoler and
medical officer or surgeon of the prison, and such other officers of the
prison and such persons as the sheriff requires, shall be present at
the execution.— 32-33 F., c. 29, s. 110.
12. Any justice of the peace for the district, county or place to
which the prison belongs, and such relatives of the prisoner or other
persons as it seems to the sheriff proper to admit within the prison for
the purpose, and any minister of religion who desires to attend, may
also be present at the execution. — 32-33 F., c. 29, s. HI.
13* As soon as may be after judgment of death has been executed
on the offender, the medical officer or surgeon of the prison shall
examine the body of the offender, and shall ascertam the fact of
death, and shall sign a certificate thereof, and deliver the same to the
Bherift.— 32-33 F., c 29, .-j. 112.
14. The sheriff and the gaoler of the prison, and such justices and
other persons present, if any, as the sheriff requires or allows, shall
also sign a declaration to the effect that judgment of death has been
executed on the offender.— 32-33 F, c. 29, s. 113.
16. The duties imposed upon the sheriff, gaoler, medical officer or
surgeon by the four sections next preceding, may and shall, in his
absence, be performed by his lawful deputy or assistant, or other
officer or person ordinarily acting for him, or conjointly with him, in
the performance of his duties.— 32-33 F, c. 29, s. 114.
16. A coroner of the district, county or place to which the prison
belongs, wherein judgment of death is executed on any offender, shall
within twenty-four hours after the execution, hold an inquest on the
body of the offender; and the jury at the inquest shall inquire into
and ascertain the identity of the body, and whether judgment of death
was duly executed on the offender ; and the inquisition shall be in
duplicate, and one of the originals shall be delivered to the sheriff.—
32-33F.,c. 29,s. 115.
17. No officer of the prison or prisoner confined therein shall, in
any case, be a juror on the inquest. — 32-33 F., c. 29, s. 116.
18. The body of every offender executed shall be buried within tlie
walls of the prison within which judgment of death is executed on
him, unless the Lieutenant Governor in Council, being satisfied that
PUNISHMENTS, PARDONS, ETC.'
... • -- 1051
there is not, within the walls of An
convenient burial of offenders exP.nf ^'1^"' '"^°'«"* «Pace for the
place to be used for the pur^lr^t ^.'^ 29,Tn 7^ """ °""^
ficat?;fd;:Lro:r;u.>:r^ -^ ^ai. certi.
speed by the sheriff to the Secr7t2 of g'tate ? "''\^" "^•^^^--*
as IS, from time to time appointed Ltu ^•'^'^ °*''^'' officer
Council; and printed copies of „c hi T"^"'' ^^ the Governor in
a. possible, be'exhibitedHnd 3ha I? T*^"'"-^^ «'>«"> as soon
kept exhibited on or near the prinl' . T"'^"'''"'* ^^'^'•^ «' !«««*. be
which judgmentof death il exL^H^S^ f 2^ ^^ ^'^^^"
01 Til. • . *' "")*. 12],
^x. ine omission to comnlv with «
Illegal in any case in which snoh .jrj,,-? , , ■'"''«""'°' <"*«*
legal.-S2-33 F., o. 29, ,. 123 "°° """''' °"'<'™"« l>"e l«en
not been pas.ed.-32.33 ^,"29, °. 124 °'"°"'"''' ""««l<ad
The Imperial Act on capital executions is 31 V c 24
the judge whotldteLtf: ZT?""''^ '^^^'' "^
necessity, and any i«d4 TL ""* "" '''''°'»*«
these„t:;ce.-2y„t^4 'S^T^^T^r
1 Ben. 89, asoi« in ij, v. k<2nJ!»,'c a 65""^'*"'
If a case reserved is undecided, or if a wn> nf
.e,„ant, : inh:;tnrcrs~r ;?r
tence, a reprieve may be granted either by To
-any judge of the con^whe. the t -^^1 ^io
term or :n vacation-l Chit. 758; 2 ffafe, J2 '
f . " J «[«
IS!"
^ii
p
1052
PUNISHMENTS, PARDONS, ETC.
It is clear that if from any mistake or collusion, the
criminal is cut down before he is really dead, and after-
wards revives, he ought to be hanged again, for the judg-
ment being " to be hanged by the neck till he be dead," is
satisHed only by the death of the criminal.— 1 Chit. 788 ;
2 Hale, 412.
The nick-name of Jack Ketch is generally given to the
common hangman in the city of London, which name is
from John Ketch, a noted hangman in 1682, of whom his
wife said that any bungler might put a man to death, but
only her husband knew how to make a gentleman die
sweetly.
IMPHISONMEHT.
23. Every one who is convicted ot any offence not punishable
with death shall be punished in the manner, if any, prescribed by the
statute especially relating to such ofFence.-32-33 V., c. 29, a. 88, part'
24. Every person convicted of any felony for which no punish-
ment is specially provided, shall be liable to imprisonment for life:
2. Every one who is convicted on indictment of any misdemeanor
for which no punishment is specially provided, shall be liable to five
years' imprisonment:
3. Every one who is summarily convicted of any otFence for whicli
no punishment is specially provided, shall be liable to a penalty not
exceeding twenty dollars, or to imprisonment, with or without hard
labor, for a term not exceeding three months, or to both— 32-33 F.,
c. 29, s. 88, part.
25. Every one who is convicted of felony, not punishable with
death, committed afier a previous conviction for felony, is liable to
imprisonment for life, unless some other punishment is directed by
any statute for the particular olfence.-in which case the offender
shall be liable to the punishment thereby awarded, and not to any
other.-32-33 F., o. 29, s. 88.
26. Every one who is liable to imprisonment for life, or for any
term of years, or other term, may be sentenced to imprisonment for
any shorter term : Provi.led, that no one shall be sentenced to any
shorter term of imprsuuinent than the minimnin term, if any, pres
PUNISHMENTS, PARDONS, ETC.
cnbed for the offenop nf »k;„u i. .
89 and 90, part ' "'^"^^ ^^ '« convicted.-32.33 V., c. 29, .,.
^^'^^'ZZTotV^^^^^^^^^ ^^™^'« ^'^-^ *h- one,
der, under sentence or unC„ '^'"T'''"'"^'^'- ^^^^n any offen-
victed Of an V other oCce.The coun or nT'"' '" ^"^ '^«'^"'=«' '« --
on the last conviction, d-^eTZt\^^T^''''^''''''^''^^y>
offender for his severa ounces I "are ';'" ^^^^^^ "P^ *h«
32.33 F., c. 29, s. 92. " '^''^ ^*««* <»»« a^er another.
Seeii. V. Wilkes, Burr 2577. » „ wwt-
place .„ which ,l,e ,e„le„ce i, pronoZ'^i'^^n ' ~"°'^ °'
gaol there, then i„ that commm mTwltH " " "° "'"°"'™
ty, or iu «o„,e Ia.f„l pri,„„ „° or.. ./ « "''"■"" '° ™'=l' '"""W-
Fiiitentiary, i„ which the °ea,e„»^f'°'"'°"'"'' ""'" ">«" •
ejected, '"'=' »f ■mpriMnmeDt ma, be la„r„llj,
sentence or not: ^*^*''' ^^'**>«' «« directed in the
thoV,Tr„Sd^^^^^^ -: ^:Y'r'^o., other than
cretion of the cour or perrn Lj *^*'"* hard labor, in the die-
k;
1054
PUNISHMENTS, PARDONS, ETC.
—and if such imprisonment is to be with hard labor, the sentence
shall so direct s
6. The term of imprisonment, in pursuance of any sentence, shall,
unless otherwise directed in the sentence, commence on and from the
day of passing such sentence, but no time during which the convict ia
out on bail shall be reckoned as part of the term of imprisonment to
which he is sentenced :
7, Every one who is sentenced to imprisonment in any penitentiary,
gaol, or other public or reformatory prison, shall be subject to the
provisions of the statute relating to such penitentiary, gaol or prison
and to all rules and regulations lawfully made with respect thereto.
—32-33 v., c, 29, ss. I, part, 91, 93, M,part, %,part, and 97. 34 F.,
c. 30, s. 3, pari. 43 F., c. 39, s. 14, part. 43 F., c. 40, s. 9, part.
44 F., c. 32, s. 4. 46 F, c. 37 s. 4.
Imprisonment for one calendar month, how computed.
—Nigotti V. Colville, 14 Cox, 263, 305.
REFORMATORIES.
29. The court or person before whom any offender whose age at
the time of his trial does not, in the opinion of the court, exceed
sixteen years, is convicted, whether summarily or otherwise, of any
offfence punishable by imprisonment, may sentence such offender to
imprisonment in any reformatory prison in the Province m which
Buch conviction takes place, subject to the provisions of any act
respecting imprisonment in such reformatory 5 and such imprison-
ment shall be substituted, in such case, for the imprisonment in the
penitentiary or other place ol confinement by which the offender
would otherwise be punishable under any Act or law relating thereto :
P-'^vided, that in no case shall the sentence be less than two years'
or more than five years' confinement in such reformatory prison;
and in every case where the term of imprisonment is fixed by law to
be morr' than five years, then such imprisonment shall be in the
penitentiary :
2. Every person imprisoned in a reformatory shall be liable to
perform such labor as is required of such person. 38 F, c. 43 . 43
F., c. 39, ss. 1, part, and 14, part, and c 40, ss. 1, part, and 9, part.
WHIPPING.
30. Whenever whipping may be awarded for any offence, the
I
PUNISHMENTS, PARDONS, ETC.
' --• 1055
court may sentence the offenii^r f^ u
within the limits oftkllZltZ T''' ''"''' '' '^"'' ^^'PP«d,
officer of the prison, andTe' 1 "^ '"'''''''''■•'" °^ "^« ™^^a
with which they sh^rbe tVcTd ;a?h"'" r' ''^ '''^^— *
the sentence, and. whenever pra 11 t' '^'f '^ ^^ "'« «°"^^ '°
place not less than ten days Tefore . ^ " "^ ^^ '''*" '*'''
""prisonment to which the 'offendeMs IteSt ^ o7nce"" ''
./20^2^'^^'"f ''''" "°' ^ •"^'■•''^d on any female ^2 q, 7' '
ss. 20, 21, parts, and c. 29, ,. 95. 40 V.. c 26 T 6 ' "" ^^'
SURETIES FOR KEEPING THE P.ACE, AND HNES.
31. Every one who is conviofo^ r^e <• i
anJ required to enter m„\ror;„°l„r'''''"''r'^'»'' '*«"<«'.
bo* or eUher, ror.eepl». .he pZ^S'^T^r'^V^tZ"'-
32-33 v., c 18, ,. 34, ani <,. w , ss 7 „ ^- °- "' '■ 5. P'>'t.
122, a„i „. 22, ,. 74. ' '" ""^ '■ 2«. »• ", <.»i .. 21, ,.
32. Whenever any person u i, i,
recognizance with sureties to keen th^ ^'^ ''^'"'''"'^ *^ ""'«'' '"^ a
has, on account of his defL U therein rC' *!;' '' ""' ''"' ^^'^--'•
weeks, the sheriff, gaoler or warden "ha uT''^ ^'"Prisoned for two
thefactstoajudg ofasupeH^r eotfofL? '^ '" ""''"^' ''
court of the couu y or district in which suehl T ^' "' '^' «°"°*y
or. m the North- West Territoriesao a stTn^ ¥ '''^"'"" '^ «'*»*'«'
such judge or magistrate m^yo der th! ? /"'^ "^^giBtrate.-and
thereupon or at a subsequent Ume^nnn/'?'^: "' ^"«^ P^'^^n,
otherwise or may make\«:L:r; o^der tl; s^ -mplainant or
thenumberofsureties,thesuminwhroh r '' ^'' ''especting
the length of time for 4ich such personal T "'" "^ ^' ^''""^ '^^
5.1. " ''"*^" I^rson may be oound.—il F., c. 19
»■ ii
1056
PUNISHMENTS, PARDONS, BTa
limits, if any, as are preacrilwd in tliat Iwhalf, be in the discretion of
the court or pereon paflsing sentence or convicting, as the case may
he.— 32-33 V., c 29, s. 90, par<.
Several articlea censuring the legislation contained in
the Imperial Acts similar to the above three last sectij as
having been published in England, when it was enacted
there as part of the Consolidated Criminal Acts, Greaves,
Q.O., the learned framer of these acts, 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 the offender. (Sec. 31, sub-sec. 2, ante.) It may
be as well to observe that a fine ought not to be imposed
on a married woman, because in presumption of law she
has no property wherewith to pay it.— i2. v. Thomas, Rep.
T. Hard. 278." 1 Rusa. 92.
♦' In all cases of misdemeanor the court might, by the
common law, add to the sentence of imprisonment, by
ordering the defendant to find security for his good beha-
vior and for keeping the peace, and might order him to
be imprisoned until such security were found ; R. v. 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 to
pass a very short sentence of imprisonment on a youth,
and to direct him to be delivered to his friends on their
entering into the proper recognizances. And it may be well
PDNISHMENTS, PARD0N8, ETC.
Li "' "*^* 1057
atcly after thei,- di»,,l,a,.„, ^'^ ''7 "> c.„„end i,„„e,Ii.
mayteml to prevent them f>„m IT"" "''""" "''""k that
hahits; „„d t,„ k„„.d„'T'';i'""g="'oU,eir former
liable to forfeit their i„ t "' "'"''"'«' «°"W be
wouId,in some easea at eTotrT ""■''"• ""^ "^''^'-'r
oo-duot. In cases of alt.t^'X-h-kupo,. the,"
peace, ,t has been found hi..hl? h f- ''"''"^ »' 'he
parties to find sureties for tjfr fT'°"' '"^l-i™ the
ami this leads to the hone th! "■' «"°'' '«''"''o';
similar result may f„IIo^ from'rZ-," °"''!.'" ''^""y- "
'"g the peace, espeeially where tl e w I,"''""'' '°""^P-
pa..ied by any personal vioiroo^ ^ *"" ''^™ ''^™'»-
" As an attack was made by Mr q„„„ , .
nmes of the 21st of Septemhl; i ! '' '" ""^ ^«'
which might, peradveuture%a„s!,„ "" ""'" ''^""'''
have not had a professiona eiZZT to'TT*''' ^''"
awered that attack in the orfArrfrrru ''°''""' "" a"-
- a reply to that an wer wa! t '" '.''^ ""' '^*-«°'-. «nd.
the£a»ri^,,<,fU,e3o?hNov™.''',''^^'--S*"»dc«m
that reply here. In olr „ r!^, .^ '"''' ^' "^''" "->'er
flrst state the objection iie^r? "'"'■" P' ''"• "" ""
'cp'y,ifa„y,tothem;a„d al °" ""'-er.. then the
■■i.Mr.saunder;a::e;«i;rt;:xrr^
clauses were 'of so formidahle ! V ''"»««lfes of these
exceedingly dangorou for 1 """""'^^ '' '" ^^^^r it
them.' Now, th^ power Inf^ ^g'strate to eneounter
"»f«rod on courr which?" '^ ""^'^ "'""'^^ '« o^'y
a"d if there be any poTntf l7 "'""T'^ "'^ M^t^J;
»» action will lie?^ t a V ofM "'^ "'^^^' '' '^ "-'
™rt for any error k 1"! H '"""'"''^ "^ '""h a
J' for in any judgment pronounced by that
SSS "^
^tlte^i^i^'
1058
PUNISHMENTS, PARDONS, ETC.
1 1
court. The courts of quarter sessions, therefore, 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 dillicult to understand
why the infliction of a fine should be inflexibly associated
with the entering into recognizances to keep the peace,'
and vice versd. As the clause was originally framed, the
court might either impose a fine on the offender, or require
him to lind sureties ; but the select committee of the
Commons altered the clause in that respect. Nor is there
the slightest dilficulty occasioned by the alteration. The
fine may be as low ; and the recognizances for as short a
time, and in as small an amount as the court thinks fit;
and, consequently, the court may, in any case, if it think
fit, impose a nominal fine on the offender, and require him
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 that 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 the court were fettered for
no practical advantage.' It is sufficient to rejoin that,
practically, the hands of the court were not fettered at all ;
for the court may impose a nominal fine, or require recog-
gnizances for a nominal term."
"3. M. Saunders said, 'as regards the fine itself, 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 offender? Is he to be committed to gaol in deftuilt?
What authority is there for this ? And, if committed, for
how long? and, if for a time certain, is it to be with
<"• Without luirci labor f Tl,„
certainly have „„t provM J ! ' 'V,' ''""'="■ »'"' '"'"'
mnmmi .iiiii„„ui„, ha™ no e^ii.f ' ""■"'"' '■»• "" ll'^o
- o(r„„,i„r i, „„,„i„,^,, ;„Vr:^r " '""™"- ^^'■«»
l'« c„,to,ly of the shoriir, «„, ho '„;/''''""'• '■" '■' ■■»
'« « to b„ co,„„,itfcd to prison L'," " '"" *'""l.«r
^;.t how he i, to get out o' ri ; " :,r,r"""'^ '" i'H»on,
wluch he can h.wf„lly „„t i„ „/ ""'' "'« ""lymean., iJ
suffering whatever the conr ...y C:;',' " ^ '^-"« -.J
do or to suffer, » ^ lawfully adjudge him to
"It is a general rule, ako il,„f i
a now felony or n.isclen, anor „1 " „! " '''^""^ »»'«»
are impliedly attache.! t^ it w, "'''""'''"'■''='''«'>'»
creates a misdemeanor, it at on™ p f '"''"'■'•'. '> statute
hw punishments for misde 1: ": '^ '» *e eomn.ou
sureties of the pence, and iniprisoZent , '""' ''"'' ""d
tie one or finding the other'a,? L" S I""" "^ ""^'"^
creates an offence and specifies its nnni l * ° " ''''"'"«
meat is to be carried i, to e«e tion a^ ;>°"'' """ '"""'''■
of the coupon la,v. Thus^l ''"'"""'"'oou.se
capital felony the offender may be IT ' T"" ^"'"^ »
acceding to the course of tt con, f'"' "'"' ""^'=^^''1
statute authorizes the court toi,!'""" '- ^°' ~^'""-« a
»ay be imprisoned acco dt» toTheT ' '"' "" °'f«""«
law til, the fine is paid. F°or » lo To?' '"" "°"""»
s.S..ifieth a pecuniary punishment fori off "'^' "" «""
f f to it imprisonn,ent appert inetr- TrV'^'""""
And hence it is that the stutnt.. 7 '^'"'- ^^6 6.
courts to impose the fine l„d /""^'^ """'^^^ '^o
according to the course of 't\Tl ''T"" '' ''"'■"■'eed
of the 9 Geo. 4. c. 31 were ",7°" T" ^"^ ^™»"'
-.»dbys.,iuth;c::o7i:r,;,'r-^^^^^^^^^^^
ill
1060
PUNISHMENTS, PAKDONS, ETC.
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 I-ord Campbell knew the law in this respect ; and it
is well known that he drew his Libel Act, 5-6 V.,
c. 96, 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 t^o refer
to other like enactments on a point so perfectly clear. All
the preceding observations, except those founded on the 9
Geo. 4, c. 31, and 5-6 V., 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 every person uttering coins liable to six
months' imprisonment and to find sureties for good beha-
vior for six months after the end of such imprisonment,
and in case of a second conviction, sureties are required
for two years ; bat no power of commitment is given in
either case. Again, both the 1-2 Phil, and Mary, c.
13, s. 5 and the 2-3 Phil, and Mary, c. 10, s. 2, gave
justices who. examined persons 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 M.
& S. 1, it was held that under those statutes a justice
mi^ht lawfully 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
Dampier, J., said * the power of commitment is absolutely
mmuums, PARDONS, etc.
' — "" 1061
course refuse to enter into a rcTo!^; ^ P'™" """W »f
tmt« could not comj*! hi„; a^^l'T^'"^ ""* ""Sis-
avo,d being served with a subpl a ^ifHr """^ '''■"''^'
escape unpunished.' Thi, i. delinquent might
than the ease of a convict relireTf„ T;' ''""««' "-"
« already in prison, wherei th" Iv "^ '"'="■'''• f" ^e
therefore in his ca;e, tirpotLtrV^ ''"'^"^' ""<■•
commit has to be implied." apprehend and
" It is perfectly clear, tiion tliat tJ...
under these clauses to order an Iff . "'""* '"'"•' ^"''^-^
prison until he pay the fine and fl T ' '° '"' *""»<='3 '"
a provision had b^enintXedet::"';"- ^"'""''P-'-"""
c^urt to award imprisonment unZhlr^^^'S ">^
the sureties found, it wol h! ."' "' P"'** ""'J
inconsistent with s 6 07* „ff """'' "'^^'' "^'^"^^
Act, which follows s. 9 of the f'"'''"^''"' 'he Pei^on
had been alte.-ed likewise L. t"' ^^' ""''"'hat
inconsistent with L„rclb^rsrbf^™ "^^ """^^
acts containing similar cTa., ' lo,!"'' "''"" "'''"
Saunde,^ replied. Taking Mr Greav.,' ' ""'''" ^'••
con.eet that the common\w inaSj'''™'''™ "^ ''^
attaches upon non-payment of th.7 .? ™P"»onment
the imprisonment is Sfllfe ''„/"'' ""^ "'^J'^""™ 'hat
the fine is not paid is ZZT '"""""^ '" f™™- "
lasting f • «re M^il "f "™"'™' '" default to be ever,
of a fine und;:,^ lus^ i:?;"'""^"' for non-payme„t
the same as for no p^^™!"'-^^^ '»''« exactly
for any common law n'ifd" eanor t rob" 7t"""
-demeanors, thjt no co;;ii:tt"fv:::::;f;
I
1062
PUNISHMENTS, PARDONS, ETC.
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 afforded a very good ground for extending
it to all similar cases, and that any alteratiori 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 labor, 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 other, and there-
fore it is merely imprisonment until he pay the fine or find
the sureties, exactly the same as it is in cases of common
law misdemeanors. To this Mr. Saunders replied that
' it was further objected that upon imprisonment in default
of paying the fine, the court has no power to impose hard
labor. This Mr. Greaves admits.' Now, this is a misre-
presentation. Mr. Saunders originally merely asked, ' Is
it (the imprisonment) to be with or without hard labor ? '
and we, having answered that question conclusively, Mr.
Saunders puts this new objection, and adds, * surely the
power of imposing hard labor would be in many cases au
active stimulant towards accomplishing tlie 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 the fine, which would, we conceive,
have been a more active stimulant than hard labor. The
question is not, however, what is the best stimulant to
make the offender pay the line ; but what is the proper
substitute for non-payment of tbe fine. ? By the common
FraiSHMEKTS,, PABDONS, WO. 1063
justices have ^n^Z^ZlT' '''''''''' ''''''-■'
ther with or without hard ab„r th! "' """"*'"■ '^^-
powerto award imp™olt\°'Ci rhTd^T^'r ''''"
payment of a fine, /„(,.<,^,^,„, il '^^P "™-
and our reasoniua jg comnlof.i ' ^' «'a'«^^^.,
authoHt,of chieF;:r£ rrrv if;- '"■^''
5. <fc & 27. We will now annlwh *"'"""■ ^
imprisonment for non-payment of a « ''"'"""'^ '•>
a r.nsdemeanor a^instZ.?.* . °" eonviotion for
than take the e^^p of d?.!?' "^''^"""' '° ''^"-
Vict., 0. 96, s. 18; by which an- "' "° " "" ''-''
W either be - risLed':St TrCth^Iharr'h ' T'
not exceeding six months or sh„ll f f. '"'""' '°'
«.e dog not Exceeding mX::\7rTlT: 1
payment he mav bp I'm,..,- / , ^''^^ default of
harf labor. Z a sZd o'ff ""T;"* °' "'""out
defendant is to be ouUtv "f , T ^'^""^^^"S. ^e
imprisonment for no iLi ""'.'r^"""'' »"<1 "aWe to
without hard I boranrbytteirrr ""''•'' "''" "
the court may imp;::! fin'e' thrrdttlt ""'T
of these punishments Now if h "" ''' ''^ ^'^"
adj..esWisonm:;tw;ti;:?::nrttttT
mount to adjudging that the offence does 2 L
more, it would be mvincr tbp n. <- "^^^^Abor. Nay,
VA ui^ giving tne court power 'iftor cAi ^
---rfornr;:-:!i:SJ::r,i-:--
1064
PUNISHMENTS, PARDONS, ETC.
offence at all. Mr. Saunders, however, says that ' such
an anomaly ' as not giving the court power to award hard
labor for non-payment of a fine imposed for a second
offence of dog-stealing, ' clearly shows the defectiveness
of the section ; ' and he arrives at this conclusion thus :
After stating the punishment for the first offence, he
proceeds: 'then in default ot payment he may, under
Jervis's Act, 11-12 V., c. 43, s. 19, be committed to
prison with or without hard labor.' In which short
passage there are two mis-statements. That section only
applies where, by the statute in that behalf, no mode of
enforcing the payment of the 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 it did apply, u distress warrant must be issued in
the first instance, unless its issuing would be ruinous to the
defendant, or it appeared that he had no goods. It is there-
fore incorrect to state generally that the defendant may
under that section be committed at all. iln that we have
both a wrong statute cited, and that statute wrongly
stated. It is true that a similar argument might have
been founded on sec. 107 of the Larceny Act, but it would
be completely answered by that we have said here and in
the Introduction. "
" 5. Next, Mr. Saunders said that ' the court v/ill have
no authority to take the recognizance of one surety only
since the statute speaks only of sureties.' Now 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 insol-
vent, or quit the country ; but it is xnuch less likely that
two or more sureties should do so. Therefore, there was an
PTOISHMENTS, PABDONS, ETC. 1065
excellent precedent founded nn „„ a
raore than one surety The TJT^ "^^ ^"^ '*1"''™«
-ona introduced the power to 1^:'?/?^ ''"■"■
recognizances. Mr Saunrt»r. , °fl<""Jer'8 own
Queen's Bench usnaly rites ° ''" ^ "^"""^ '*"' "•«
that circumstances m^ cTur 'Z "'T " ' ''"' ""'■"«
yoang person, where one s„retv . ''^^'" ""' ™^ "f"
be req.,ired.' We renlv th!f .^ ^5' '"'''"^ '"""^ »'°ne
riably followed forfimel^^' admitted practice, inva-
Qacen-s Bench, was an ^f '"r?"*' ''^ *e Court of
than any other." ""''^ "^"^-^ S-^e to follow
" ^i«%. Mr. Saunders said H,ot *i,
introduced by the committee of the' cT""' "''""' ""'
that ifanypersoa is required to fi T """" ' '""'"^
(» year, he shall not be im,^ri aY """'"' *■■"■ >""« '!>«■»
ing to this readi 1 0^™? '""«'.' ^°»git' Aceorxi-
for a less term thin a vZ ^^A"'"'""'"' '" «">• ^"^"es
for life unlesr ^uXh r :^; rr''^ ''"'P'^-ed
find them for „.re than a year wouW notT,'''Kr'"'""
imprisoned at all. The obfecL Melf """ '" "«
that cannot be the intend noT^hH^n"' '^" ''''"''
m,ttee of the Commons thon.hnhaftr, ,"""'■
meant that no one was n. il ^ "'"""'' '''^'"•'y
year for notfindtagns ZT' I'' """ """■ ^
at least as competent „7fk ^'"^^ f-^™-! "- and they are
njeauin, In rZMrTXr:;':C^T '''
admits that the meaning nf ii. r ^ ^^' ^^^aves
person shall he impri ^ t"^: t" T '"'^' ""
exceeding one year for not find n" uretts rr 7 ''"'^
we will only add, that it is very much tl ''""^"'•
the British Legislature has no 'aM "haUurf-"' "''
of saying what it did not mean ' If I " '""**'*
The words are, ' No perso„^h!n h„ '' " """"' ^°'
person shall bo imprisoned under this
1 1!
1066
PUNISHMENTS, PARDONS, ETC.
clause for not finding sureties for any period exceeding
one year, and the objection rests on reading 'sureties' toge-
ther with ' for any period exceeding one year.' Now, ' sure-
ties to keep the peace or to be of good behavior for any
term,' is a perfectly well-known expression; but 'sureties
for any period ' is a very unusual, if not an altogether un-
known 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 pronouncing sentence nothing is
more common than to insert the cause of imprisonment
between the word ' imprisoned,' and the term of imprison-
ment awarded, e.g., ' The sentence of the court, is that you
be imprisoned for this your offence for the term 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 ; for where
a clause is capable of being read in two ways, one of which
leads to a manifest absurdity, and the other makes per-
fectly good sense, it la obvious that the latter is the right
reading,"
" We said and repeat, ' hat there was nothing whatever
in any one of the numerous objection; , and unquestionably
nothing to justify a writer in saying that the clause was
' so B^ovenly drawn ; ' '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 this section is a
most unfavorable 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 iu his
PUNISHMENTS, PARDONS, ETC.
new and very extenaive powel • S /'t™ "™'"°'
cannot but know .h,t ,i,„ *^ '"^'- ^''''e'y Mr. Saunders
conviction for misdemeanor tone of* m'"" °" "
known to the common law. rZm S '^'''" ''"""^"
may well be questioned whether t^ ''°''' '"y^' '"
f-ed his appointed puoishm J .^'if. ";""-«' "aa suf-
upon him the further ineoZ ! •''"'""°"' 'o '"Pose
for his future good i^hZt '"ir^T'^''^ ''""'"™<>°
answer that sue! has bet' he J '' ™°''^'' '^
»ea„ors from time immelrfrand r"""™ '^"""^''^■
complaint against it ■ but ,> , ""^ ^""^ '"""'d a
ther fines „°r su et fes arl e '' ' '"' '" '"^''' """ "ei.
|;a. ...fered his a^S^^r. ' *" ^ "'™^'
the court always considers them asTrt'of tb/ •"f™"'^'
and this power is alwavs u,»^ ;. '"'*°'"'<' P«nishment,
minal, and a less terlnf , """=^ '"™<'^ ^e eri.
is exercised. ulZilrrfT"''' '"™'^^<'' '"■ere it
this objection, t is a m!lT '"^ '='^"^^ ^'"S «?«» *»
founded on ^CllZ^^^-Zt '^'"'''\ ^'"-^
"Mr. Scunders aoai„ t 7 common law."
to a bestowal ^f un^n!;; ^^ X; "" ^.-f-' --unts
ment, and when we And t)^t , °f "itigation of punish-
woundi„g,eto.,arralf mis :t tsl^'^ »^ -ioiously
'0 impose a iine in lieu of TnvnTb '"'"""*"' «'™"
very lilce jesting with crimlTl P-"^'"»™t. loolcs
Saunders forgotten that ^ Tecl ^^"'^''"'-'■-Had Mr.
sou convicted of mansIau»hK°' / """' ""' "n^ Per-
in -any cases than m S: j? ""T -«»"ely g,.L
--^'^er in addition trir^Xirp:r
1068
PUNISHMENTS, PARDONS, ETC.
tnent? So under the 9 Geo. 4, c 31, s. 9, the court might
have awarded a fine on a conviction for manslaughter,
without any other punishment." — Oreavea' Cr. Acts, 6.
34. The punishment of solitary confinement or of the pillory shall
not be awarded by any court..-32-33 V., c. 29, *. 81 .
The pillory was a frame erected in a public place on a
pillar, and made with holes and moveable boards, through
which the heads and hands of criminals were put. The
punishment of the pillory, which had been abolished, in
England, in all other cases, by 56 Geo. III., c. 138, was
retained for the punishment of perjury and subornation of
perjury, but it is now altogether abolished by 7 Wm. IV.,
and 1 v., c. 23 :— 1 Chit. 797; Wharton, Law Lexicon,
Verb. Pillory.
DEODAND.
35. There shall be no forfeiture of any chattels which have moved
to or caused the death of any human being, in respect of such death.
—32 33 v., c. 29, s. 64.
By the common law, omnia quce movent ad mortem
sunt Deo danda. Hence the word '• deodand," which
signified a personal chattel which had been the immediate
occasion of the death of any reasonable creature, and which,
in consequence, was forfeited to the crown, to be applied,
to pious uses, and distributed in alms by the High Alm-
oner. Whether the death were accidental or intended,
whether the person whose chattel had caused the death
participated in the act or not, was immaterial. The cart,
the horse, the sword, or anything which had occasioned the
death of a human being, or the value thereof, was forfeited,
if the party died within a year and a day from the wound
received. And for this object, the coroner's jury had to
inquire what instrument caused the death, and to establish
TOHKHMENTS, PAKBONS, ETC.
the value of it B„f ,1, ■ "" '"^^
value only, and' co^fietVdL"'/.'" """ " "»■»■»»•
Pa« of the thing itaelf\^'hlh :';f;;*7er, '"■"Sor
waggon, to one of the wheel, > " '''"*' »»- « a
266 ; I Hawkins, 74 IB^J'T^' '■ ^Ve. Foet.
" which »een,eth to hale hf ^o :^^ °; ^"'^ f"*''-™
the snpe^tition of an age of exZ '' '°""'''' '^*^' i»
principle, of sound reason 1^, '^'"'""""' """■ » 'he
waa abolished in CZl on ,. ,' ''°''°^'' ^'»«- 266.
1846. by the 9-10 V." c el '' ''"^ °f September!
ATT4INDEK.
.e,r or to the prejudice of the riahtr^iH.^"" ""'"heriting of .„y
ts,:^','"^ the o*.e/,::;*i:xro:;:-?i
... the death or .„ch o^.^e^ttrtrrr^g^^. -.!
% the common law a mo„ <- < — ■ — —■-- "•
felony stands «««'.' By this -^r^l?^^ foa^o. or
civil rights and oapaoities and h» . '" '°'^^ ''"
the '...ng all his knds and tenemenf f '"''^"= *»
-1 estate, his blood is corX"" ^TJt ' Tv"'' ''^'■
pass by inheritance to. from or thm!, 1.1 """"^ can
380. 387; 2 Hau,Un: X^'^'JuZ^'f"''^"-^'
ments are not vested in ih. . ^^°^^ ^r tene.
a jury of a fact wlioh ZtCZ "'""''"^''^
-ofsuchlandsortenerlri'^.rrurj-r
i^i
1070
PUNISHMENTS, PARDONS, ETC.
verb. ^'Inquest of ofoe," '' cfjlce-found:*—^ m^phens'
Com.n. 661; though this formality is not nectss.iry in
cases of treason, where, by li3 Hen. VII[. ch. 2'\ actc. 2,
goods and chattels become the property of the jrowu without
office.
The aforesaid sections of the Procedure Act are taken
from the 54 Geo. III., c. 145, of the Imperial Statutes ;
they have the effect to abolish the corruption of blood in
felonies. They seem to exclude cases of treason, or rather
to assume hat corruption of blood exists in treason ; but,
in these cases, corruption of blood i ver existed in this
country, not being part of the crimimu law of England, as
introduced here, it having been abolished in England, by
7 Anne, c. 21, sec. 10, suspended by the 17 Geo. II., c.
39, sec. 3, till not only the Pretender, but also his eldest,
and all and every his son and sons, should be dead, an
event long ago accomplished.
The 39 Geo. III., c. 93 (Imperial), repealed these last
mentioned statutes, but it is not law for us.— 1 Chitty,
734, 741 ; 4 Stephens* Comm. 455.
This view, on this part of the law, seemed to bear such
incongruous consequences, that we thought it better to
have upon it the opinion of the learned Mr. Wickateed,
law clerk of the House of Commons, the framer of the
above clauses.
Mr. Wicksteed had the kindness to write as follows :
" Sections 55 and 56 of the 32-33 V., c. 29, are taken
from the statute of U. C, 3 Wm. IV., c. 4, and, I think,
should be read, and should have been printed as one sec-
tion, as they are in the U. C. statute. Why the U. C.
Legislature supposed that it was desirable to pass that
act, I do not exactly know, but suppose that, after the
passing of the Imperial Act, 54 Geo. III., c. 145, ' An Act
WmSHMENTS. v^n^,^ „„,
to take nwav fha « . ' ^071
«, '„„ attainder for felony w .iii j' ^' '""1''^ '""oto
the pa.„ng of the „ct, save i '" '"''O !''«» after
III-, and Anne wa, at any rate Z.u? , "'" ""■" "^ »'m
"nd not at all doubtfu/aa „ " ' '"*'"'-"'™»""
""d thoy, therefore, p,,.„^ , ° I« 'y-'>-e««o„ ,.„d nuu* '
^ e Imperial ParliaJnt, ^' tr,:: f <"■«»' "i* tl,a uj
the exemption to aU o her ! ° '""°''' '""extending
'^ason. And it i, "ell t' T' "' '"'"">■■ -'c^l't n'"h
acts of W^„ 1 1 ', " »"l'Posed to have re™ i ,
-"ere the overt act o trtl " '°""™' »"" '■•'"> i« a es
0" the life of or bodily So r^^' "' " "''■'' "'temp
that, after conviction in „oh I "''''«"■ »"'' VoZl
nevertheless given and executt,, d'"'' ■""'»""^« ^"»" t
Ingh-treason; nothing is sTd "'tf"' "' '" °"'" cases !?
atUunder, and the ac°t iseltuled /""''^"""^^^ "^ the
t"«l3 of high.treason and mil? ^" '"^"•"■' 'eg„latin„
7-.' I do not see that tl ' ZT" 1 "^»'°" ^ ee«d„°
«'at"tes, (William and Ann o'rr?"'"'" '■"«»-««
was repealed by them, and h Jm "rn ""'''"' '"^''^
"■ W5, seems to assume that tL 7 , ""' ^* «eo. In
standing the three foJer L" t"" '"! ^^'^'^''. ™twi":
present one go still further and
A
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TEST TARGET (MT-3)
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(71t) 872-4503
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<>
c-b-^
V C^
fi
is;
^
1072
PUNISHMENTS, PARDONS, ETC.
I
abolish it in all cases hut high treason, thus very properly
reversing the operation of the statutes William III, and
Anne. I am not aware that any statute of the Imperial
Parliament or of any of the Provinces of Canada has le-
enacted corruption of blood for high treason. It would
seem then that the acts of William and Anne, and 17 Geo.
11. c. 39 (which I could not look at as it is absent from '
the library,) were intended to abolish corruption of blood
for treason after the death of the sons of the Pretender,
the last of whom. Cardinal York, died at Borne in 1807,
and, therefore, before the passing of the Imperial Act, 54
Geo. III., c. 145, and still longer before the passing of the
U. C. aot, 3 Wm. IV., c. 4. But though the said acts
would appear to have abolished corruption of blood for
treason from 1807, yet, both the Imperial Parliament and
the U. C. Legislature seem to have thought that the said
acts, had not that effect, for neither the Imperial nor the
U. C. act re-enact the corruption of blood for treason, but
assume that it existed, and abolish it in certain other cases.
If so then, in Lower Canada, it does not seem to have
been abolished in treason or felony, until the passing of
our act of 1869. There is a little mystery about this, but
fortunately, it does not matter now, except as a curiosity
of legislative history. The Imperial Parliament passed an
act, in 1870, 33-34 V., c. 23, abolishing forfeitures in all
cases— a very sensible thing. But the act is necessarily
long and special, as it had to provide for the management
of a felon's property while undergoing sentence of impris-
onment. In cutty's Cr. L., vol. 1, p. 741, there is something
on this matter, and he calls the 7 Anne an ineffectual
attempt to remove the corruption of hlood from high
treason. But I doubt whether Ghitty had the statutes
before him, for the effect of 39-40 Geo. III., c 93, and of
54 Geo. III., c. 145, seem both to be incorrectly stated."
.im—^7.
PUNISHMENTS, pabboks, ETC. 1073
C. Act (C. S. U. c Tim 7' ' ""''■■ "^''her the U.
dure Act of 1869 LI^C^" '' "' ""■ ^~-
«o„ of blood incase, of hf^h' 1»T h^*' """"P-
hat ;t exiats, pre,.„d ,„ lIJ^Xl^^ ^' -assuming
that It does not exist. When th. ..; . , "' " "PPeara
wereintroducedeitheri„Xpe,liT ''■"'"^^'■S'™''
serein force, i„ EnoUudT 7,,^"" ^'"^'^'^^'^
abolishing suci co.;!"' '/bCd 1' Ti '"° ^'-"■'-
t«ally from 1807 (see VJLTc b '"l' ''"'"f' "'"
11., p. 649 note) : these stah.t. ^ C'WTOood, Vol.
partof our laws they"" tr"" '""™''"^'' '° "' "^
so. it wonld seem tbaril thl "^^"^ '" ^""^da ;
the. is no corruption tfM^X' '""^ "' ""^ '""•
treason or any other felony and tht "'"'" "^ '"^h
felonies, the criminal fo^t 1, .' '"' ""^'""^^ "fall
and the profits of landf^tr^e :h^^"'' "'■'"'*■
comes, in the o«iinary chann fof dll'f .„ I ".''•"'"^
13 thus also restored to « fnll ' ° ''" '"^" ^-ho
Ontario. C. S. 17. a, 82 :eeT"^ '° "''""• '^^ '«
oiwrcX'^;:;;Tjh ttv^'^-'^^'? ^^ -^ 3., of the
sion. Is there not a cont^ii^r " '""^°"' ^y succes-
and more particnlarlv .^ f "*'"''''' ^^"'^ "^^s.
the aboveir : ;™il^^^^^^ '•"=''"- ^6 and 37 of
ediy exclnsi; jnScZn 'n ..^"'"T"' ^ "°^™'*-
P«rts of the indg^ntin Z *' ,'"«'8"«-" ""d all the
atWnde, forfeitnd a p^:rof 1 °"r ^"' "'"^ '"^
» -e,,ence„fit', s.T;L:L:ti3r-;.;;:t
XII
'■' u
1074 PUNISHMENTS, PARDONS, ETC.
sequence of the judgment, do they fall within the Criminal
Law or the Civil Law ?
The attainder can be reversed by Act of Parliament only :
the royal pardon has not that e&ect.-Rochon v. Leduc. 1
L C.J. 252; 2 Hawkins, 49.
'The goods of an adjudged felon belong to the Queen,
without office found, though they are allowed to remain m
the possession of his wife, or any other party So if a
larceny is committed of such goods, they must be laid ir, the
indictment as belonging to the Queen, even if the felon is
only sentenced to a short period of imprisonment ; but a
house or land continues to be the felon's property, as long
as no office is found.-i?.. v. WhUehead, 2 Moo. C. C. 181.
As remarked by Mr. Wicksteed (see ante), forfeitures,
confiscations and attainders are now abolished in England
since 1870. v i r
It may be useful to remark that though the rebels of
1837-38 sentenced by the Courts-Martial then established,
were declared attaint, and their property confiscated, this
was in virtue of a special statute specially passed for that
purpose— the 2 V., c. 7, of the Lower Canada Statutes.
As to' the validity of assignment by felons, see Choivne
V Baylis 31 Beav. 351; Perkins v. Bradley,! Hare,
219 ; Sau7ider8, in re, 9 Cox, 279 ; WUtaker v. Wisbey,
12 a B. 44.
PARDONS.
38 The Crown may extend the Royal mercy to any person
eentrnced to imprisonment by virtue of any statute, although such
person is imprisoned for non-pay.nent of money to some person other
thantheCrown.-32-33r,c.29...l25.
39 Whenever the Crown is pleased to extend the Royal mercy to
any offender convicted of a felony punishable with death or otherw«e
Tnd grants to such offender either a free or a conditional pardon, by
PUNISHMENTS, pardons, ETC.
warrant under the Royal S- u "' ^^^. I075
principal Secretaries of Stale or'T''' """"^^''^'gned by one of the
-al-at-arms ofthe Govern r Gen ra^r?"' ""'^^'' *'- ^and a,^d
out of custody, in case of a fr.e pi don ^'^^^^ «^ «»-»' offen^r
con.ht.on m the case of a condition"? "'J *^ ^^^^^^^^ance t
a pardon of such offender, unde the G ?"-' ' ''^^^ ^''« ^^^^t of
wh,ch such pardon has been g amed ! «"'' '' '^ ^^e felony fo,
discharge ,n consequence thereof nor / "' ""'^ P^'-do", nor anv
per orn,ance of the condition thero ^"^r"^^*-"'^! pardo'n. nor t e
sail prevent or n-.itigate the pun is W^ ^'^ '"^^ «««-« aforesaid
otherwise be lawfully sentenced on TV "'^"''^ tb« offender n.i.h
-^2-33 r., c. 2!», 3. 126. ^'^'^ ^''^ Pardon was granted.
COMMUTATION OF SENTENCE.
40. The Crown may commute M,.
any person convicted'of a e^pi a ' ^f 'r .^^ ^-«> P-^d upon
F"'tentmry for life, or for any term of v. ""P"«0"ment in the
or to unprisonment •■ „y othe 'aol o^ 1'' ""' '"^^ ^^'«» ^wo yea 1
period less than two yeCjifrL^ r '' '^"''-'-"^ for a. 7
jstrument under the hand aid V:,^^^^^^^^^^ labor, and 1"
declanngsuch com:„utatio„ of sent nee 11 ".^'"^'""'^^ ^^"^'•al.
n;ent under the hanu of the Secretary of Statr / u'' ^'^ "^'>^'' '»^'ru-
of^tHte, shall be sufficient authori^to^nv L '' """'^^ '^«-^-3^
junsdicfon ,n such case, or to any shentf'li 1- ^' J"^'''=^' ^^^-ing
let er or mstrument is addressed, to gfve "ffec t \ '"^ "^'«'" ^'^^
and to do all such things and to marsVcW^" «"«'' commutation,
directions, as are requisite for the chaLe of ^Z *"^ '' ^'"' «"<^h
and for his conduct to and delivery at fuch ^^T' "' '"^'> «°"-ct.
n.ent or penitentiary, and his dete^ftion het"^' "" ^'''' "' ^°"«"-
oa wluch his sentence has been cr.:u::dT32r;'?4^ "I2T'"
JNOEl.aoiNa SENTENCE, EQUIVALENT TO i PA^ooN. '
ai'tiit tr:n?it tdt^^^^^^^^^^^^^ r ''-- -^ -"•«^^-
ofte,H!erwasadjudged,-or if suetnt^! Punishment to which such
and tl.e sentence has been coJl "ed thellTf " TT^^''^ ^'*'> '^-'h
the punishment to which hrse'tln ' '^'"'^'^^^^^^^^r has endured
^0 endured shall, as to iroi„ ! T ''T"*'^^
convicted, have the like effctatd con's '"^'"'^ ^^^« ^°
---seai,butnothinri:i.:rs::::-:--^
1076
PUNISHMENTS, PARDONS, ETC.
such punishment, shall prevent or mitigate any punishment to which
the offender might otherwise be lawfully sentenced, on a subsequent
conviction for any other offence.— 32-33 F., c. 29, s. 128. 9 Oeo. 4, c.
32, 3. 3, Imp.
See Ley man v. Latimer, 14 Cox, 51.
42. When any person convicted of any offence has paid the sum
adjudged to be paid, together with costs, under such conviction, or
has received a remission thereof from the Crown, or has suffered the
imprieonment awarded for non-payment thereof, or the imprisonment
awarded in the first instance, or has been discharged from his con-
viction by the justice of the peace in any case in which such justice
of the peace may discharge such person, he shall be released from
all further or other proceedings for the same cause.— 32-33 F., c. 21,
I. 120, bind c. 22, a. 73.
43. Nothing in this act shall, in any manner, limit or affect Her
Majesty's Royal prerogative of mercy.— 32-33 F., c 29, s. 12 •.
GENERAL PROVISIONS.
44. The Governor m Council may, from time to time, make such
rules and regulations to be observed on the execution of judgment of
death in every prison, as he, from time to time, deems expedient for
the purpose, as well of guarding against any abuse in such execution
aa also of giving greater solemnity to the same, and of making known
without the prison walls the fact that such execution is taking place.
— 32-33 F.,c. 29. s. 118.
46. All such rules and regulations shall be laid upon the tables of
both Houses of Parliament within six weeks after the making thereof,
or, if Parliament is not then sitting, within fourteen days after the
next meeting thereof- — 32-33 V., c 29, s. 119.
46. The forms set forth in the schedule of this Act, with such
variations or additions as circumstances require, shall be used for the
respective purposes indicated in the said schedule, and according to
the directions contained therein.— 32-33 F, c 29, s. 122.
47. Nothing in this act shall alter or affect any laws relating to
the government of Her Majesty's land or naval forces.— 32-33 F., c-
29, s. 137.
SCHEDULE.
cebtipjcatT^spbgeon.
said prison; and that on finnh J 7^«.**»'s day executed in tl,e
C. D. was dead. "^ ^^aminat.on I found that the said
I>ated this
(Signed,)
day of ,18
A. B.
MCLARATIO^, OF SHERIPP AND OTHERS.
our presence. " ' ^^ (^esmie thej,nson), in
Dated this day of ,13
E. P., Sheriff of
J- M., Justice of the Peace for
^- a., Gaoler of
etc., etc.
SURETIES.
COMPLAINT BY THE PARTY THREATENED POR
SURETIES FOR THE PEACE.
T, . Canada, ^
fc c«e «„ J„ ) of"'™' (;; »»"■> y, united comtie,, „^ a.
1078
PUNISHMENTS, PAKDONS, ETC.
I I
I
li
i
I I >
signed, a justice of the peace, in and for the said district (or
county, united counties, or as the case may be) of , at N.,
in the said district, (county, or as the case may be) of ,
this day of , in the year one thousand eight hundred
and , who says that A. B., of the (^township) of ,
in the district (county, or as the case may be,) of , did, on
the day of (instant or last past, as the case may be,)
threaten the said CD. in the words or to the eflfect following,
that is to say, («c< them out, with the circumstances under which
they were used:) and that from the ahove and other threats used
by the said A. B. towards the said C D., he, the said 0. D. is
afraid that the said A. B. will do him some bodily injury, and
'therefore prays that the said A. B. may be required to find
sufl&cient sureties to keep the peace and be of good behavior
towards him, the said 0. D.; and the said C. D. also says that
he does not make this complaint against nor require such sureties
from the said A, B. from any malice or ill-will, but merely for
the preservation of his person from injury.
FORM OF RECOGNIZANCE FOR THE SESSIONS.
Bo it remembered that on the day of
year , A. B. of (laborer,) L. M. of
in the
(grocer,)
and N. O. of (butcher,) personally came before (us) the
undersigned, (two) justices of the peace for the district (or
county, united counties, or as the case may be,) of , and
severally acknowledged themselves to owe to our Lady the Queen
tiie several sums following, that is to say : the said A. B. the
sum of , and the said L. M. and N. 0. the sum of ,
each of good and lawful money of Canada, to be made and levied,
of their goods and chattels, lands and tenements respectively, to
the use of our said Lady the Queen, her heirs and successors, if
he, the said A. B., fails in the condition indorsed (or hereunder
written.)
Taken and acknowledged the day and year first above men-
tioned, at before us.
J. S.
J.T.
11!
♦ .
PITNISHMENTS. PARDONS, ETC.
The condition of the within r k
such that if the within bound A ^ ;^/'''*«° recognizance is
next court of general sessions of 'th ^ ' ^*^'^ ""^^^'^ ** ^^^
charging the /unctions of the coul^ f""" ^^'* "'^'^ ^^"-'^ <^^o-
case may be), to be holden in and l.J''''-f *'"*'"**' "'* «« ^^'^
united counties. .. as the caL 1"; L^ f '"''' ^^'^ °°""^^'
receive what is then and there enio7„fi l'^ f *° ^^ ^"^
the meantin^e keeps the peace a„T?"° ^^ '^' ''''''> ^^^ ^^
Her M.jesry and her lieg peonL ! f ^'•'^ ^^^''^'^ *«-rds
(of, etc.), for the term of ^ ' '^ '^'""''^^y *o^ards C. D.
recognizance to be void, otherwlH r^"^ ^T'''^' ^^^"^ *^^ '^'^
virtue. ' ^^'^^'^^'^^ to stand in f„l] force and
FORM OF COMMITMENT IN^amtt, ^
Canada ^ '^ ^^^^^^^ «^ SURETIES.
Province of HiaLin* / 1
" . ." .I.e »aid district („ r„;" ^^ ""' ""^ ''■>
Whereas on the day of •
was made before the undersigned Cor tT'^J' '°'"^^'^°^ °° ^^^^
the peace in and for the said district /n' ' '^""'"'^ * J"^t^«« «>f
or «* the ease may he ) of ^ "n"'''^' '"''^'^ ^*'""*'««'
°f , in the said district (or countv . ' ^*'5 '''" ^^°^^'P
(^«i«r«.), that A. B., of retc T on .7' "^^ '^' '«*^ ^"i' 4
the township of ^^'^ ^° ^'^^ day of , ^1
'M : And whereat thl^Jd I B 7 t"' '" ^'^^«*' ^U
appeared before the said justice 'u'rTl yJ"' ^"°''' '^^
the peace m .nd for the said district U '^"''''^ " J"^^'*'« ^^
"'• «« ^Ae ca.. may he ) of ! («^«««nty, united counties,
p'-': a. wi„, ,.„„,„,, crrr tti:
, .U1.K .'il
1080
PUNISHMENTS, PARDONS, ETC.
recognizance in the sam of , with two suffioic^nt sureties in
the sum of each, as well for his appourance at the next
general sessions of the peace (or other court discharging the
/unctions of the court 0/ general sessions, or as the case may be,)
ix> be held in and for the said district (or county, united counties,
or as the case may he,) of , to do what shall be then and
there enjoined him by the court, as also in the meantime to keep
the peace and bo of good behavior towards Her Majesty and her
liege people, and especially towards the said C. D., has refused
and neglected, and still refuses and neglects, to find such sure-
ties : These are therefore to command you, and each of you, to
take the said A. B., and him safely to convey to the (common
gaol) at aforesaid, and there to deliver him to the keeper
thereof, together with this precept : And I do hereby command
you, the said keeper of the (common gaol,) to receive the said
A. B. into your custody in the said (common gaol,) there to
imprison him until the said next general sessions of the peace
(or the next term of sitting of the said court discharging the
functions of the court of general sessions, or as the case may he,)
unless he, in the meantime, finds sufficient sureties as well for his
appearance at the said sessions (or court) as in the meantime to
keep the peace as aforesaid.
Criven under my hand and seal, this day of , in
the year , at in the district (or county, or as the
case may be,) aforesaid.
J. S. [L.8.]
MSS. NOTE BY n s r,i>r,7Z^
BT 0.8. GREAVES, ESQ., Q.O., ON RAPE.
Among the Laws of WaSlm th« i^ ^^'*^'''
Norman Dictionaiy, p. 36. w ^J'-T'' ^^^'^^ ^""^ '^^ K«lh«m^^
f-'f'.-^-lcta ejus L<mi^o\rrZ^i'^T'' ^Q»«^- '"t,; J^^
S<ymfacM membra. "'**'*• -^^ ^^-o earn c(mpresserit,
By the 3 Edw. 1 c 13 «fi, v
ortakeawayJ,^;,„;J^Yde^^^^^^^^^^^
consent nor without,) nor an/ wi^ ' ^.^ff ^^f ^er by her own
her woman o^axW A«. t^v^ and if «n ^ '" "^^"" ''g^' «or any
within 40 days, the Ki„. shall dn ^ ^^' '^^ ^^ «»'* tha wiU sue
theKingshall,and,onco'v^ct V^^^^^^
By the 13 Edw. 1. s, 1. c. 34, S^TCr'^l'"'^ ^^^^^^^^ f«"o^.)
woman married, maid, or other, XTI^T ^'""'^"^^^ '^^ -«^ a
»«^ «M be shall nave judgment^nlf! f "*"' ''''"«'"' ««VA.. V^r.
w ere a man ravishetk [ woma„ m rfed iT^ ^"^ '^^^^^
'^y^!^^''^.^i^h she consent aM^^^^^^^^^^ damosel or other,
Bha 1 have his suit." By the C R tt 7 1 '^''' «"^ '^^'^ the King
and the daughters of noblemen and otW ' ""' ^' ^^^^^^^^ver, ladie«
after such rape do consent to such ra^ . ""T"" "^« ^«^i«bed, and
as they that be ravished anrlTonb^'^" T" *^--'^^-
sab ed ' to take any inheritance?efc Th^T. ll '''"^ ^'^^^-^-^^
benefit of clergy in all cases of rape ' ^ ^^''•' '■ ^' *««t away
• The statute of William fb« n
J. c- 13, and it and the oVer s^atuf '''' ^««^«P«*led by the 3 Edw
« G. 4, c. 31, which repealed tlem ""*""^' ^ ^^^ -tU X
■ine crime of rape wa.q fol
-«...ufferde..h (2 In,. ^ "'rdT r Ir "" "" "f-"''
& f !■
' * 4
1082
APPENDIX.
Ji/rce and against her mill ; " (Co. Lilt 123, h) and commonting upon
what this word (rajte) doth signify in the 3 Edw. 1, c. 13, and other
statutes, Lord Coke Hjiyn, " it i.s well described by the mirror ' rape
solonqiie le volunt del estatate est prise paw un proper mots done pur
chescun afforcement de fern' (forcing of ft woman, Kellmm, W. D.)
But better in another place," rape in when a man hath carnal knowledge
of a woman by farce and against her will,^^ (2 Inst. 180, 3 Inst. 60)»
and this definition lias been followed in too numerous books to
warrant a reference to them.
Then rape, like murder, has a fixed meaning, which nothing else can
exproaa. In the Year Book, 9 Ed. 4 f. 26 pi. 3ft, a man was indicted
for that \i& Aliciam felonice cepit et earn tunc et Uridem camaliter cogno-
vit contra voluntatem suam. PerLakin (Judge of K.B.); The statute (13
Ed. 1, c. 34,) says that if a man ravish a Dame or Damosel ; so the
indictment ought to state according to the statutt hat he committed
the Mony, scilicet quod ipsam rapuit, etc., for it cannot be taken by
the indictment for a case of felony. If a special act be made that if
one ravish such a woman, that this sliall be felony, and ho
be indicted quod earn felonice cepit et earn camaliter cognovit, tins
avails not ; but she ought to state according to the statute that she
•was ravished." Per Yelverton (Judge of K B.:) "If a woman bring
an appeal of rape, she ought to say rapuit, or otherwise it
availeth not." Hele (counsel) : "writs ought to follow the form,
and this is the form of an appeal, as you say ; but an indictment
holds no form, but only (states) the truth of the fact, and this matter
in itself proves that he ravished her ; wherefore it is sufficiently good,
for it is the same in effect as if it had said rapuit. Billing (G.J.K.B. :)
«* Where a man is indicted of murder, if he buy a charter of pardon,
he ought to make mention expressly of murder, or otherwise it shall
not be allowed ; therefore, if a man be indicted that he of malice i)re-
pense assaulted and killed a man, and says not murdravit, notwith-
standing tliat this matter proves that he murdered him, yet the indict-
ment is bad, because he is not indicted quod murdravit, etc. So here it
ought to have the word that makes the felony, — scilicet rapuit." Lord
Coke thus applies this case " this word rape is so appropriated by law
to this case, as without this word (rapuit) it cannot be expressed by
any periphrasis or circumlocution ; for camaliter cognovit earn, or
the like, will not serve." (Co Litt. 123b.) Accordingly every indict-
ment for rape has always used the word.
No rule is better settled than that where a word has had a definite
APPENDIX.
1083
"i««m>.g attached to it fl.comm ,
«;«tuto it Will have th« ..yj^^' *"•^^'"'* --^ '« used i„ «„„
«t common !«., and that 'Z^Z'"-7 "I "'^^ ""'^"'" <" '^ l^d
•"Port^an offence ; and con , 1 IT ^ ''" '^'^ "'"'" ^'- -oJd
'ai;o nuiHt bo given to that wo7d ^h r.,1 •?'""'"" '''^ '"-"'"« of
and HO themeanin, amxed to 1 L , H^ '' ? ""'^ '" ""^ "^"^Sto
1>e-l;y theatatute of ^^ThaTtl^^S/"" '"^'^' *« ^- "f'-m-
ea«ed tobef„lony(2/«,, ISO ) ^J ^"'7 ^'"^''"'^ '''-"'"«
«. 1, c. 34 During all the tuno ZylTT'^ ""''' ^''" ^''^ E^lw. 1,
denmnded the man for her hu!l Cr •? *'"' ""*'""« '^ the wonmn
(^Jns, 180). and Lord Cok :X;'jr' '''' ^^^ I'"--^'"":
^va. confined to the woman (2 Cm T'T'" ^"^^ ""'' «l««'ion
'"«ay« " It i« not credible what ill ;„!^^ .^.''' «» *'^^ ««•"« page
ha . ' and cites the case of u't^ Z^ ^^^ ^' "^'^ '' - ^3
Pubhcly ravished the daughteTof S t' w ^^''- '' ^^'^^ '>) ^^o
desired to have her as his wifT whifh t "'''"' ''"^ "-'"- -"d
This state of things led to tho ik v\ -,
but did not repeal, the 3 E w I'l' [f' i' ^^f "^'^^ --^^d
construed together, ^' '• ^^' Therefore they must be
The 3 Edw. I c 13
"PPHed to girls,' who Ce wul '""" '^''""^^ "^'^"«^«- The first
women. The fi.t applie" L I^^^rth ''u' """^ ^" '^^ ««^-
2 t ns shows that girls with-'a a^e we e 1' n'T"* ^^ "^^^out ;
that It was not rape where they dM K ^ .??'''^^' ^^ consenting, and
consent of ao avail. Whilst in th« l\^ ''^'^ clause rendered their
f -ill;;' as in auchcase^ rwota-""^'^"^^^--"''^^^^^^
And thusit is shown that each of thed "" "^^^^^^ °^ consenting.
;;;eet the cases at which eacl was dLLr T.'""^^*^^^ ^™'«edto
that e«cA c/a«,« only applied tZlr ^* ^' *^«" Perfectly clear
-;«< and did nof aStnytt'ThaT ''^' ^"^ '^'^'' -' -'
after that time. ^ny^Jimg that occurred either before or
to til:;::l;°:xirEd' f st^';?:i" ? ^-^ ^-ted out) ^
P--0US statute. It aho ^nain.-t'l: ?"' ^oes not repeal thi
J^hereaman'Moravishawoman * V^«"«««.- '^' «^«* «PPlie.
"il r""* ""'''''' WorTrrTft r.?'7;^' ^^ «?-^-her?she
-v.heth a woman, although she :orent after "^Th T' ' "^'^
alter. The first applies
P'
' C|
1084
APPENDIX.
•where there never ?8 any consent at all ; the second where there ia
consent after the rape. It ia clear that the wordt " did not consent
neUhw hefwe nor after " do not apply to the time of the rape itself, but
actually exclude it. Lord Coke (2 Inst. 433) says " this clause is
intended jf an appeal to be br'^^'ght by the party ravished ; for, if
she consent either before or after, she oball have no appeal; but, if she
consented neither before nor after, then she shall have an appeal, and
there is no law that givjs a woman an appeal of rape but this."
("Lord Coke refers to "13 Edw. 3, Coron. 122," which id not in the
Year Books ; as they skip from 10th to 17th Edw. 111.) Lord Coke
adds " Hereby the ancient law concerning the election given to her
that is ravished is taken away." This explains the origin of the
clause, and shows that the words do not apply to the act itse'^f, and
were not introduced in order to define the offenco in any respect.
The reasons why the clause does not in terms refer at all to consent
at the time of the rape are that the word " ravish " at common law
imported thajb the act was against the will; and the 3 Edw. 1, c. 13, con.
tained the very words " against her will," and that statute and this
must be read together. It wm absolutely necessary tovM the izonl ' con-
«n<," OS applicable to the time before and after the act ; for it was imi-os-
sible to apply the words " against the will " to either of those timeb :
they could oi y be applied to the time cf the aut itself. It is maul-
fest that the Ja.^r statute was very carefully framed upon the for-
mer. The words •' a woman married, maid or other " are plainly
substituted for " any wife or maiden of full age, nor any other
woman " in the former statute. And this leads to the inference that
the first clause in that statute, relating to " any maiden within age,''
is not affected in any way by the later statute. So too the words in
the second clause, " if he be attainted at the King's suit," plainly refer
to the previous statute, and limit a prosecution by the crown to
cases where there is no suit by any private individual ; and the 6 R.
II St. 1, c. P, plainly shows that the suit by a private person con-
tinued after the 13 Edw. 1, st. 1, c. 34 ; and that where the woman
consented after the rape, it saved the man. Cases like that of
Warren de Henwick were completely met by the first clause, which
obviously prevented the man from claiming and obtaining the
woman against her conaent.
Lord Coke in his chapter on Rape (3 Inst. 60) clearly considered
the former statutes of the 3 Edw. 1, c. 13, the 13 Edw. 1, statute 1, c
34, the 6 R. i, c. 6, and the ) S EL, c. 7, as all existing together; and,
APPENDIX.
1085
?^*^
with ber will or\,Ji\:Z^ tftC'^ ^ ^' ^' *- /-^
benefit of clergy; '^„d then I^^ Coke Jf"^'' ?^ "'^^ *«^« th«
' what offence thia was at common W "' u- ? '^' ^'^ Inst, as to
c ' ed. It is plain, therefore ZTw^^^f^^^ ^^ave already been
tion as I have done upon the 3 Edwi ' i?"*.*^" '"'"^ ^^'^^t-^"^-
c. 34, and there can be no doubt tL't^' . ' ""^ ^^ ^^^- ^- «*• h
Equally clear is it that there C'-L. '""^.'''^-^-n was right
what was the common law o«ZZ hf 7 '" "°^ ^^^^ *° «^ter
^:f:=oi-----^-s^^lt^-
clearly show that pro'of Tf botrt " °°*^'°^ "^^^^^ -^ore
inent runs « the said A violentlv «r.T ""'f ««a'y • The indict
ravish." Bobber, is exacJyetLthTeT "."^^ '^^^^^^^^^ ^ ^
the person and against theSo^til^ f^^^frctment runs "from
did steal." It seems impossS^e to drnT "^ • ^«^°^°"«Jy 'i^dviolently
forms; and the definirr'rrobre^T '^^^
these offences require the tt to be do^ !»fear,»etc. Now both
the will; and it\ quite Z thatt J^t''"" «"^ «g--^
.«)fence to the person beyond the Ze IH!^. ^' ^"*' ^'^ '<"»«
articles; for no mere taking fromThe tl ^ " '^ *" '«**"^ <^
can suffice in robbery. It is ZT T .' '"'"'' *g*'««t ^he will
article from a man asllep dru^k wo'^Vf T"^^ '^''^^ -
same reason it would seem tlmt Will '"®''- ^'^'^ ^«r the
a state of insensibility cannot c^S^r"''''"^. ^^^ * ^^'"-n i„
violence ultra the mere co^n Lbn '^il^^^'' '^"^ ^^'^^ ^« "^
pnnciple ingredient, and in 4 "eems a lelTt >' '"'"" '^ *'^
ingredient. Violence to the Parson Cl u ^' °°" ""'^'^^^7
that robber, is in truth comp^unded^f ITV"'' ^° ^^^'^^^ ^ -
assault. And it is difficult to undeLtand r ''' '«^'«««y ^nd
-pe where there is no violence":^^ t^Lr^ "" ^"^^"°* *^
witho:t:^rcernotrX%r;ft/^^^^^^^
violence the crime may be compete ' ^"*^ ^^^"^ ^'^d
;;
g if
1086
APPENDIX.
Nothing could more clearly show that violence to the person i3
«Jnaa^>thecrimeof rape than theatatuteofWiUiam the Conque-
ror atdi^^ s cCfrom it that the violence mast he such as to overcome
TrTstrcfof the woman; even ^^^^l^V' iT^SV^rl
xnust be a struggle, iwctomer. It »««d hardly be added that a mer^
Lectation that is sufficient to constitute an ^-au t xn pomt of aw
is insufficieat, unless indeed there were an overpowering terror
'tpTaSnrran appeal of rape at common law Bracton says:
u!^t^!cL,tafZit et cressa, statira cum factum recens fuerU
clTcZLe et huteJo debet accurrm ad villas vmnas, et ^ln .njurmrn,
iL 6^3 4). Nothing could more clearly prove that from the time
If Bracton tai Lord nSe wrote the act must have been done both
IS and against the wiH in order to --^ute the cnm. A^d
Lord Hale fully justifles my views as to the dangers to which
innocent men may be subjected by false charges of rape.
In B V. JacTcson, R. & B. 487, the prisoner was convicted of a
bur'la y with intent to commit a rape. The prisoner ^oV^ntofe
riUed.ifhehadbeen^^^^^^^^^^
Sotc:mX:t rlir TreTr/Ud that he entered the
house Sttent to pass for her husband, and ^oj^^^^^^^^^^^^^
with her if she did not discover the mistake ; but not with tne
. ^1 nf forcing her if she made that discovery. The question
wTre^ved X hi' tL connexion with the woman, whilst she .v.s
Tder thltmistake. would have amounted to rape. Four of t h
badges thought that'the having carnal knowledge of a -man -hik
^sirwLundLthe her husband would be a rape
but Z other eight judges thought that it would not ; and Dallas, C
but thej>ther « gn ^^ «^ ^ ^^^^^^^^ compelUng a woman
LSher^W^^^ would naturally arise
rCmSdTws called into action, and beguiling her into consen
deflnition of ^^f^^^^l^ ^^ ^.^^^^,, ^^ necessary. It is
intention of forcing a woman ; and equally so now
■APPENDIX.
g"aty of a burglary wifl, • . ' "^^^^
° ^- V. Saunders, QC.dhP 9an .i.
rape on a married woman T^' ' , "* P"'°°«'' ^as indicfp^ t
does not establlh thf / ' ^"'^^ ^^^^ the evident T^' ^-
a rape upon a married woman, and T ^"''^^'^ ^^^ ^'^dicted for
he statement of the prosecutrix IT "^^"'^^ (^'^'^o^ding to
oner had got into bed with thT ^' depositions) that the ../
and had penetrated her7etot^S:Thf ^^^"^^ ^^^e wlfllC
no* her husband, and that he p^Zj """' "^^^^ *hat it was
allowed the prisoner tn T, P^^osecutrix stated th;^ ^1, !
■i j\
1088
APPENDIX.
in the belief that the man was her ^^^f "^- j^^^a that he
ered that the man was not ^^\^f';^^.2l^yVt not by force ;
intended to have ^--^-^'^^^^f ^"^ case of B. v.
and if detected to desist Upon a case rese ^^ ^^^^ ^^^^^^^^
Jackson was cjuestioned, but Jervis. f^->'^^ ^^^^, this
^th several of the other ^-^^^'^^^^X^^^ ^; Z decLn in B.
'^-f t:^. 'Sn^rgtC'e tught tt thisLe at last had con-
V. Jackson, ^f'v!"!^;^ ^ ^^, equivalent to force in cases of rape,
dusxvely setded that f aud is n q ^ ^^^ ^^.^^^^^ ^^
In iJ. V. Cami>Jin, 1 Den, B» , i J^ ' ^ ^^^^
convicted of a rape on a g.rl of tha^een y^^^'j^^^^^^^,^ ^ook
her quite drunk, and -^-/^t^^^i'/.f;' found that he gave her
advantage of it, and violated l^^^; J^^^^^^^^ ^^.^ the intention of
the Uquor for the purpose ^^ ^^^ f .^^^^^^^^^^^^ intercourse with
rendering her insensible, and then having ^^^^^ ^^^
her. . Upon a case reserved it waa ««°^J^^^^^^^ the part of the
there must be actua force -^f^^J^l^^ ^^^ ,,a three thought
woman. But ten judges held tl^« ^^^J^f ^^ "J J j ia ....if a man
it.,ong.Inthecourseothe.gum^^^^^^^^
'"°-t:itrhTr^tTer^^^^^^^ - ^^ ^-^-^
nexion with her wniie s resist and evinced no opposmg will.
be no rape, because she did not resLJt an ^^^
This is exactly like the case where a man ^ ^i"^;!? robbery. -2 Buss.
ped of his property whie ^^-^^^^^^^^IZ to effect the object
C. & M. 109, and the violence has ^^^^^'"^^e " In ca.ses of fraud the
and toP-ent res.tanc.^^^^^^^ ^^ ^^^^, ^ ,,t in the
woman's will is exercisea unue resistance waa
-e put by „.y --'f -f2:;?erb tprUonsr. Here it w.
topos,ible,o«mgto * Wo« P'^^^^^^ ^^ ^„i„ta.ered." I.
rendered mpoMiWe '>' '"' "*"" ,^^ reasons for thU decWoa ar.
the .ddenda ^o I Den 0^ ^VI^ „^^ ,^ ,.,„, „f the eou,ic
given by Parke, B "^ 'J« '^ J^ „( j, committed by violatuig
*°' ""l™2tta»:XsenIuty,andh.no power...,
a woman when sue is in a at ^^ accused
her will, whether such state is -use^f^h -- - ^^ ^ j^ ^^,
tnowingatthattimethatsheisn^^^^^^^^^
Parke, B., remarked that m a ™; ..^hereshediduot
offence of rape is described to ^-.^^^^^^^'T^very difficult to con-
consent," and not ravishing against her will, it is ve y
APPENDIX.
ceiveamore errnnn^, ^ 1089
did not consent," but " Jhf' J '^*'^*^' «^e not merelv « !l ,^
been referred to in 2 "*'"'* ^^^ ^'i'-" If thA. . ^'*^''
nught have been offered at??''^'' *'^ -P^^^-tiont: t*;^^^^d
wh..proper,,eonerektv::::^^^^^^^^^^^
and that, an unlaw uj^t an/ T""''^ '^ '^e act ofle ^t'"'''
known that the act w^ ' '" 7^" *^« ^^e prisoner 3. ''
that she was capable ofTxeS^^ ^-J-nt ^ the'^tt": ^
procureher consent and failed, the off^L ^ "^"'' ^ ^«<^««m»^Jl
appeared upon the evidence that thf '?"''' ^'"''°°' ^'^ «*id : « Jt
so long as she had sense or power to f'"*"^ ''^""''^ ^'^ <=on^^ent
1 C. & K. 749. ^''''' '^ «^Pre«3 such want of consent ?'
And the very learned judge added • « v
f ^otH." wea^^itttL: :tfX^ ^--p^twa^:
fraud does not supply the force and WoL. "^"' ' '' ^ '^'^^ ^ha^
robbery ; and even in larceny XrlTZfT'T' '' ^'^'^^'•^^^e
from any one who has power to ?art t^tl^ '^'^''''^ ^3^ ^^ud
Sr^" -.itted,and co4renCth?oC;:^^^^^^
4ltw^^^^^ stated the decision in
these facts it must be presumed that tlw""^' thought that on
being clear that the woman had not ^ ''''^"' ^oluntatem it
minister theli,uor,andthatshene:^;^^^^^^^^^^
lus having connexion with hor wrerLtt v ^ ''"''''* "' "" ' *^^'
;-^ra voluntaur. uUimam, wL"h must bet ""' *'"^^-^' «^ W
" "^^^^^ ''-' ' --^- -*^--^' -^^^^^^^^^
uuu
ll 'I
1090
APPENDIX.
rape e c , in the case of a woman insensibly drank in the streets,
Bot made 80 by the prisoner. And in B. v. Page, where the prose-
cutrix stated that she usually slept with her father, and, on wakmg
from sleep, she found him having connexion with her, it wa.^ urged
that Camplin's Case supported the position that if the prisoner had
connexion with the girl while she was in such a state as to be inca-
pable of giving consent, it was rai)e. Alderson B., said : I do not
understand that case to have gone so far as you aftirm. It only
decided that where the state of unconsciousness was caused by any
uct of the prisoner, connexion with the woman in such a state would
constitute the offence. The wine was offered to her by the man in
that case, and there was at any rate evidence to show that he had
induced her to take it. 1 concurred in that judgment only on that
^TilB V. Byan, 2 Cox 115, the prosecutrix was in a state not to
understand right from wrong; but her general habits were those
of decency and propriety, and Piatt B, left the question to the jury
^'hether she was likely to have consented ; and added that if she
was iu a stale of unconsciousness, whether it was produced by any act
of the prisoner or by any act of her own, the prisoner having con-
nexion with her in that state would be guilty of rape. If you beheve
that she was in a state of unconsciousness, the law assumes that the
connexion took place without her consent." So on the trial for the
rape of an idiot girl, WiUes, J., directed the jury that if they were
satisfied that the girl was in such a state of idiocy as to be incapable
of expressing consent or dissent, and the j.risoner had connexion with
her without her consent, he was guilty ; but a consent produced by
mere animal instinct would prevent the act from being a rape. Anon.
stated in Bell 0. C. 70.
In B V. Fletcher,'Bell, C. C. 63, the prosecutrix was incapable of
distniguishiug right from wrong, and the prisoner met her, and was
seen to have connexion with her. She was not shown to have oflered
any resistance, though she did exclaim whilst the prisoner was in the
act that he hurt her, and on the prisoner rising li'om her and her
gettin" up she made a start as if to run away. The jury found that
Ae was incapable of giving consent from defect of understanding . Upon
a ca-e reserved it was contended that there must be either force or
fraud, and that there was neither in this case ; and the cases of i^. v.
Jackson, etcwere referred to; on which Lord Campbell, C. J., said: In
those cases it was at first held that fraud suppUed the place of force.
APPENDIX.
This IS certainly a mistake Th ^^^
and none are referred to in eT? T "° '"'^ ^e«'«ions in the h. i.
If they existed and had no^ h "''^*""' ^^^^^^^ they wouW I u ^''
a^ked "whatdoyoTsaTlr^-^-i. Lord CalZu^^ ''^^
-2s:::;-^~"Sdr^^^^
aenmtion, and ,t ,vas adopted i„ n ,■ ^' "« ''""■'tl by th.1
«»•»'. <»«,, and suteMuenu' i '° **?""' *'■ """ed upon i „
erroneous judcmen^ «-., "^'^^ <="nie of ranp o„j fe^"«'ici
ttere ,va, no evidence of It rio,!""" """"^ '""oi 'o notice that
«»>;■">« defect, and e^^^tle ™m" ."'"^ '""^ «■« oou?d
a connenon to be ",vith force "l^r'' ^ H in terms reonir^
,, " '"»««' merely in the 7 '° '"» beyond thai
'"'*«"■ ""with force, "a'^,/""'^'"".- '»■• the word, „'
;-^»de, eyerything that" incide,, 0^" " "'™'""' "»' "^ tenL'
^to comtitntethecrimrfafoeef"""''''^''''- TbeforcenecL
tt "°°"'"' ■"" "■» ■»=« W n eSt ,h r^"^ ""= -™ "o
^-"-™e.,..t.t.he court .yer noticed that^ord
fi
1092
APPENDIX.
Coke, Lord Hale, and othora all wrote upon the statutes, and all
hold that in order to constitute a rape the act must be done against
the will of the woman. On no subject is there a greater concurrence
of opinion ; and on no point is there an opinion entitled to greater
weight. It cannot be pretended that any judge of the present day
is abler than Lord Coke or Lord Hale, and both were very much
more conversant with our old statutes than anyjjudge in our time ; and
Lord Hale was an infinitely better criminal lawyer than any judge
of recent times; but stranger still is it that Lord Campbell cites the
2 Inst. 433 for the clause in the statute, and never notices Lord
Coke's note on it, which shows how erroneous his judgment was.
Lord Campbell, C. J., also added: "It would be monstrous to
say that if a drunken woman returning from market lay down and
fell asleep by the road 'side, and a man, by force, had connexion
with her whilst she was in a state of insensibility and incapable of
givuig consent, he would not be guilty of rape." I totally dissent
from this obiter dictum- Substitute for "had connexion with her"
the words '' took a purse from her," and the fallacy will at once
appear. No one ever dreamt of such a case being a robbery, and
yet it is a bad offence. The Greeks considered it so infamous to
steal from a dead body that they had a proverb to denote the dis-
graceful nature of the act, viz., " he would even plunder a dead
man." But disgraceful acts ought not to be included in we , known
crimes, however bad they may be, unless they clearly fall within
them ; and it is to be feared that these cases are but too strong
examples of the proverb that "bad cases make bad law." Some of
the dicta in them naturally enough sprang from the indignation felt
at the acts that had been done, and the attention seems to have been
too exclusively confined to the particular cases. It seems never to
have occurred to any one to consider what the consequences might
be to innocent persons, and the door that might be opened to the
fabrication of false charges. A very long experience in criminal
courts satisfies me that the majority of charges of rape are false, and
that innocent persons are put in great peril by them ; and for
the most part no one except the man and woman are alleged to be
present, and consequently it is open to the woman to fabricate any
story she likes without fear of contradiction by any one except the
prisoner ; and the stories that have turned out to be fabrications
may be said to have culminated in a case, in which the prosecutrix, a
nice looking girl of under age, told as clear a story as ever was heard
APPENDIX^
i« examination in chief, bufn ^^^^
cnm nal lawvpr «* , was on h a notP<, «« ,:. ^' ^"*ch
no doubt, oTth'nr?'^'''*^^ ^'^ *-luUtl ' ?",^.^^^*hatgreat
It may well be asked, also if f™ a •
of consent, how far ia u to if exTen , ". ^T''""' '^ ^-- -d want
-duces a woman to yield to h^^s h ^ "'^^"^^ - -ngle man
No one can doubt that this i.l .''^ * P"°™^«« to marrv W
M must have acted fraudulentiv ii.V.™' "'" '''™ Arst to l.,t
»» of her pe„„„; ,„j hereltert . '"i"" *° "'""'' «» PoC
eonnex,on m„,t J,a™ been ^k^- . . "" mwmg, and tn T
tte AMuction Statute, .IT^^, ? ^'^J'^ °' ™P»- (lonsi^Z
' "^ ^"'«^ and menaces of
ii
1094
APPENDIX.
imprisonment enforced her to mairy him, and by color thereof
3ed her, for which she prayed an appeal, and it was granted her^
(7m\ citmg m. Pari 15 H. 6, nu. 16> And also that an
Ipp^wa/g anted in the similar case of dame Joan Beamont agamBt
E LalrBt'.who had married her against her wUl and rav.hed her.
rRot Pari 31 H. 6,n«. 72.; In these cases the appeal was specially,
Lv n b^Par iamen't. and they strongly tend to show tl-t a marmge
^/ocure'd by fraud alone would not ^^ -P^;^"/^^^ f J^^.^
be force in order to constitute the crmie ; and the 31 H. 6, c. 9, wnicli
wa pa sed in consequence of the preceding case m order to gwe a
remedy to woxnen forced to enter into bonds, tends the same way.
In B. V. FleUher, 14 Law T. R. 573, the prisoner was tned for a
rape, and the quesUon reserved was whether the ca««;"f * « have
gone to the I'ry, there being no -idence. except the fact of the^^^^^^
nexion, and the imbecile state of mind of the girl Of tl^« ^^^^^^
conSou there was the fullest proof, for it was admitted by the
.roner" There was, however, no evidence that the connexion was
prisonei. , indictment charged the prisoner
Z^:l:L^ the-offence against her will and without hor
Cent. Ihe judges were all of opinion that some evidence of tha
Xat n as a fact should have been given ; and that there was not
S^.t s rt of testimony, on which a judge would be justified in leavmg
heclsetoajuiy to find a verdict. «. We are unanimously of opinion
^tThere wL here no evidence to establish -^fl^^'^^^^''^'';''
was against her wiU or without her consent." And PoUocc C. B.
Lded " I wish to add for myself that I think the act of Parhament
^i26V.,c.lOO.ss.50, 61,; which makes sexual connexion a ci-ni-
Sal offence in the case of children of tender years has a tendency
r throw light upon the case before us. Here the contention on
the part of the crown must be that an idiot is incapable of
onsenf but it may be said in answer that the same (^use, which
fequir d an act of'parliament to make the mere fact of connexion
r^riminal offence in the case of children of tender years would
rajre an act of Parliament in the case also of idiots." The same
remark arises upon the 1 Edw. 1, c 13, as to maidens wilhin age.
ThecaseoT^.- ^--l/'l^ Lav> T. 295. only decided that the pis-
Irbng charged wilh having committed a rape on the prosecutnx
ZZnst her mil hi. answer. '• Yes I did," was evidence to go to the
rr and so it clearly would have been, if the crime must be com-
Se'd "ga^st the wi- In B. v. Barro., 19 Lav, T. 293, the prose-
APPENDIX.
1093
oiitrix was in berl ftn,M i , ^^vO
awakened by a man Imvin;'^."! trV" '"' "" -'»i''"'«'y
baby out of her anas. Shc^h Z Tt w '"''.""'^ ^'-'""8 the
could count five after she conudetl ' ^ '^f J'^'^^'^H and she
wasnothorhuHhand. Kelly (< R , t"^'' ^*^^"'" «ho fou«<l it
;;ty of the J.d,n.nt o^^'Z^Cb dl 7^'^ "" "'^ -^'•-
he case wa. made out; a. it was 2./"/ " ': '''"^'^'-r, that
by force and without consent before or !f^ , '' ''^^ ^^'^'^ ^l-'«
;t«e f, coupled with the pushi.. a^L 'T'^^' ^'"^^ ^''« "^^
force, and there wa. certiinly no co ea r '"''' '^'"'^'"''^'d
immediately afterwarda. But on a Z ^ ^'^''''^ ^''^ ^he reverse
waa quashed. Bovill, C. J., '< It d ' n /'"''"'^ '^"^ conviction
cutrix was asleep or unconscious at the til '^r'' ''^"' '^' P'"'''^-
connexion was committed. What w J i "" °" *'"^ ^'''^t -^^t of
consent, though that was obtained by ftauT^'w '''"''''''"'' ^"' ^^^^
his case comes within that class of cases Lwhn' vT "^"^"""" ^'^^'
hat where, under such circumstanc^ o u " '"*^ '^'^'^ 'J^'^i^l^d
raud the offence doesnot a.n^iX ^r ""^Jr '"'^ f '^'"^'^^ ^^
another strong confirmation of the cZ r '^''' therefore, is
Jackson was the first; and it is n. AiT\ '*'^'' ""^ chichi?, v.
doctrine that in cases of rai fUd ^ f"''"''^ '^^-"^t the
Sweenie, 8 0,:^, 223, a. stated in si r"/' '' ^"■''- ^''^ ^- ^•
259. ''"^ '"^ 2 ifmrrf , ieadin^ Cnmi,mZ Cases,
In iZ. V. ^arra«, 29 iay, y 40fi f J,,
out of her mind ; if told to he down he ruT"" ^"^ '^^'"'^ «»d
been told to lie on a couch u xtlrher ^^ f ^ ^ "^^ ''' ^"'^ '^'^ bad
J^new her state, and he was s^ f I^ thT'^T'- '''^ l^"-"-
going mto the room her father found tb " "''''^' ^"^ "'^
the end of the couch buttoninrL llfr ^"''T' ''^"^"'« »P «t
quietly on the couch. The L t r '"'"' ^^*^^ «^^« ^^^ iji"'^
had connexion by force l^^^I^^ a^ifT" i'^'^^^^ ^''•^^--
;d.otic state that she did not know what If . ^ '"'' '" ''""^ '^
he prisoner was aware of her beil. il .^ T""'' ^"'^ ^"^"8- «>'d
hun guilty of rape ; but if the ll f? '"' '''''' '^^^ '"'^bt find
the prisoner wifho'ut resL a cf l 7tl""'' '^^"'^^^' ^'^^^^ ^«
Btate and condition, had raaso^ i think the 'T"'"' ^'""^ *^" ^"'■^'^
'» »"- *. „,„. .e™::rr?arr:i::;rjr^
mm
1096
APPENDIX.
conviction wa« riKht, upon lh(
incftjuible of giving Iht cou»eut,
B (fT< nml' (liat the proBccutrix wft«
and restn entirely upon the decision
of li. V. Fletcher, Ml, C. C. 63.
In R. V. Flattery, 36 Law T. 32, the prisoner profensed for money
to give medical and surgical advice, and the prosecutrix, being in
ill-health, went with her mother to consult him. The prisoner put
several questions to the mother as to the condition of the daughter,
and made some examination of her person. The prisone'- then
fraudulently, and knowing that ho was speaking falsely, told ihe
mother, in the hearing of the daughter, that "it was natuiv's string
wanted breaking," and asked if he might break it. Thu molher
replied that she did not know what he meant, but thnt she did not
mind if it would do her daughter any good. TLt i^risoner wont
into an inner room with the girl, and there had connexion with her,
she making but feeble resistance, believing tliat the prisoner waa
merely treating her medically, and performing a surgical operation
to cure her of her " illness and fits," and submitting to his treat-
ment solely because she so believed. Unless such submission in law
constitutes Jconsent, there was no consent. It was held, on a case
reserved, that the offence waa raj)e, upon the ground that there was
no consent to the prisoner having connexion with the girl. The
decision proceeded entirely on the case of B. v. CampUn, and the
erroneous opinion that the 13 Ed. 1, c. 34, defined the crime of
rape. R. v. Barrow was muah questioned ; and Kelly, C. B., said:
" I lament that it has ever been decided to be the law that, where a
man obtains possession of a woman's person by fraud, it does not
amount to rape."
There had been previous cases where indictments for assault had
been held to be supported by proof of the like false pretences of
medical or surgical treatment, by which females had been deceived
and suffered their persona to be handled. (-B. v. RosinsM, R. <fc M.
C. C. 19,) or otherwise indecently dealt with (R. v. Stanton, 1 C. efe
K- 415) or connexion to tr;' i pT'iC(^ fR. v. Case, I Den. 580.) In
this case Wilde, C. J., said, tho.cfi.xo8 r.li.wed that " where consent ia
caused by fraud, the act ia ■'• I^f * a.n . sault, and perhaps amounts
to rape." The cases referred to were R. v. Saunders, 8 C. tfc P. 265;
and R- V. Williams, H C. dbP. 286 ; and, instead of showing that the
act is rape in such cases they are clear decisions to the contrary.
Some expressions ai)pear to have been used equivocally in these
cases.
APPENDIX,
1097
Thus the expreaslon "incat.»w« „# ....
There an be no dm, ,t th.i Zr "/ ' ""'""' I""!'"'-"/...
".mcie„. ..»de.u,,di„;i'ti"^.:: ::;;;:;::««»". "-^-'^ »'
ject to very Btrong aniriml nft««inn« wl T *^ . *"'' "^'^"K' «"■« «"b.
to, if not actually'to cour IZZil 7""^^ ^"^^ ^''°"' *« ««-"t
that connexion with sue r^IIi a 4." '{ '^T' '« ^""*«"^«1
rightly left to the j,.ry thaft^e " ri th '''l ^° ^^ "^ ^'•'"«« '* ^'^
yield from anima iLtin t B«t Si 7 ^ "' '"^ '"'«'''
the jury were erroneou:.y told h " A.^Y' ^^" ^- ^- ^^^
giving consent, or of exercisin./ anT/ , ^''^ '"'' '""^V^e of
might convict ;» and they f3 J/^h' 'S""' "^ ''^ """''''' ^^^^
consent from want of uLrst Jl^ Up-^^: ^^^^^^^ "^-ing
finding the verdict of guilty was clearf, erro'eous Th/^'''^'''^'^ """^
hkethat of very young children, who ^n "lelt ,0"^" " '"■ "^
though they are incapable of judcin^ of *>, ! connexion,
the act. In li. v. Read, 1 Lenf^y^ ,, ""'"'" '^^^ ^"^^^^ «f
of nine years of age assented, but thll'«w7 f"""^ ^^'«* « K^^l
not know what she was about ;" and it Z IVlf'' ''' '''' ''^
could not be convicted of an LsauTt \ 5^ ^ *^"' ^^' P™^"^^
young to be examined; PattesT J «an^/^T '^' ^"^^'^ *««
can consent to that which, vd ho utsicT " '^"°" '^'' '' ^^"^
an assault." B. v. ^Ctl'tr"?;^' -uld constitute
said "my experience has shown mo that chill f ^""^^^ ^^«
may have very vicio.s propeus til' Sefrv 77 '"'" ^^^
r. 603. x- r "w». ^^& Ji \. Johnson, 12 Law
A woman may be quite incannMo ^t
an., ,ee be pe J„Uy :Lp.b,r„TS„t r.nSr "'-f I-"-'.
coTwequenlly He „ant of the form™ i! ''P'""' ^ """»
evidence to the contraryTworid f. 7' ?'' "'"° "■«" « "»
that ,h.t i. He case, Thi pM„ r , ""' '"' P'^^-Ptlon is
—demtion than /. ha, r„S """^^ ""» ""««'. 'l«»«"'e» more
Soveralceshave .„„ed on the distinction that has heen takeu
„
1098
APPENDIX.
between consent and submission. laU. v. Day, 9 C. <& P. 722,
Coleridge, J., said, "There is a difference between consent and sub-
mission. Every consent involves a submission ; but it by no means
follows that a mere submission involves a consent. It would be too
much to say that an adult submitting quietly to an outrage of this
description was not con«enting ; on the other hand the mere sub-
mission of a child, when in the power of a strong man, and most
probably acted upon by fear, can by no means be taken to be such a
consent as will justify the prisoner in point of law." And it was
left to the jury to say " whether the submission of the prosecutrix
was voluntary on her part, or the result of fear under the circum-
stances in which she was placed." See also R. v. Jones, 4 Law. T.
154. B. V. Case, 1 Den. 680. An important question arises occa-
sionally in these cases in addition to the question whether the
woman submitted, but did not consent. It is " did the man hoM
/(ie believe that she was consenting ? " In R. .v Flattmj, Denman,
J., said " there is one case where a woman does not consent to the
act of connexion, and yet the man may not be guilty of rape, that
is where the resistance is so slight and her behavior such that the
man may bmdfide believe that she is consenting." And, a fortion
that may be the case where the woman submits, and makes no
resistance at all. In B. v. Barratt, where the girl was blind and
out of her mind, and there was no evidence whatever of resistance,
the surgeon proved that there were no external marks of violence,
but that in his opinion there had been recent connexion, and he
thought she had been in the habit of having connexion, there would
seem to have been cogent evidence that the animal passions of the
girl had led to the con»exion, and the case ought to have ended in
an acquittal
It may admit of question whether the distinction drawn in R. v.
Flattery, between consent obtained by fraud from a married woman,
and consent obtained by fraud from a girl to what she supposes is
medical treatment, can be supported. In the one case the consent
is given to a connexion with a man, as to whom the woman is com-
pletely deceived- In the other it is given to an act, as to the nature
of which she is completely deceived, and in both the act done 's
totaUy different from the act to which the assent was given. In
each case the power to do the act is obtained by fraud ; and in each
the nature and quality of the act is totally different from what the
woman supposed it would be. The intent, the object, the fraud,
APPENDIX.
1099
and the end obtained aro «n <-t, . .
possible tod aw any sou^d^tS^^^^^^ *^^" '^^ - i*
tences are very siLlarTin tCtL T'" ^^^"^ ^ ^«^«^ P^^"
"were these false pretences ^'^^Wer';^^ T'*""^ P°^^*« «^«
"Was the chattel obtained by them?" ■? ^^^"^"^«^«y "Bed ? "
tence is sufficient, and no distinction^ L f ''^ ^"^ '^ ^^^'' P^«-
pretence and another. Th^Te IT, fr^" ^''^'''^ '^' ^^^^^
fraud is effected, audit is quite iTmatJ-t ,"^^^^« ^y which the
frar i i3 the gist of the offence ^"^^^enal what they are, for the
fro^lSfnt ;:: J::^^^^^^ decision is plain
Alderson, B. B., and Patte on r^^^^^^ ^^ ^-Ice and
since been reserved prove not onl'v that it T'^''^"! '"''' '^^' '^^^^
satisfactory, but also that it hl^^tel ^^ ^''" '''''^^'''^
which Of itself is sufficientto throw! ubtonlnvd "^-^ '"'^"^^'^^ ''
however, if the mistake on ^^r.^^lf^'^^^y^ecision. Whether,
out, would induce our Judges to coV 7'' ''"'^^^'' ^^P-^t^d
impossible to predict iufhl T' ' ^ '""^^^^^ '^^<^^«i»n, it is
ioMTid Jy one statute, the judgesriht ' . . ' \'^^ *^'' '^^^ ^'^^«
the two statutes to decide accfln.L '''T'" ^^'"^^^^^^^ ^'^^^^J'
provisions. That the law o^^S l ^" ''"' construction of their
cannot be doubted ; and Xt\f!ri' ^ ' ""^ ™"^^<i «*«*«
penal a matter, it would be well to v! ."*''' ^^P^<=ia% i^ so
s^vitus ,uaru uUJus aut vayun. aut ^I^SL ""^^"""^ -«> -'
20th /February, 1878.
Abai
(
Aba?
]N
I
Abddi
F
O
Pj
F(
01
Abettc
About
Of
Of
Abomin
Pui
Att<
Sem
Wh
Abortio
Adn
Prot
Imm
Rem
Absence.
Of w
big
ACCEPTAN
Ofbii
Accessor
Act n
INDEX
Abandoning.
Child under two ^ears of age page
Abatement. 172
No indictment to be abafprf k„
Remarks on . , . . _ !, !t !. '''*'°" ""^ ^''^ °^ 776
Abddction. 777
^^!:^::^z::^:z^^ 20s
Offender incapable of taki^f " 'op 'tv ''''''' ''''^^^' ^^c- 208
Property to be settled bj. court ^ 208
Fore, ble, of any woman with inteni U '^ 208
OfgirluuderI6ye.r8ofage "^'"^ 211
Abettor. (See Aiders and Abettors.) ^12
Abolition. 6
Abominable CRIME. ' 712
Punishment for
Attempting to committor asVauVtin.^ UM ' • ^^
Sending letter threatening to accus" ^f ' '' '"'"'"^'- "
What i8,in such case 617
Abortion. 617
PrrnnrrSgs ;:i;'er„;: '<> Procure. 218
Immaterial whether womTbeJ-thehiH ^20
Remarks on ^^^^"''th child or not 220
Absence. 219
"bi;:t;:.'.'.":'".".''..:°:.::™ f;»". ^^^""^ """^^ -.
Acceptance. 76
Of bill of exchange, forgery of . . .
Accessory. 612
Act respecting
23
1102 ^N^^^-
AcoES80RT—( Conitnued.) 13
Before the fact ••; * ' * " ig
Must be absent when offence ib committed ^^
Procurement of felony by "" ^5
Joint conviction of several .....,'...... 15
Only in felonies I5
Cannot be, in high treason 16
In manslaughter ;".'".".' '* VJ,.;li"or tried and
May be indicted although prmcipal is not u led. or triea an ^ ^^
acquitted ' " * \q
After the fact •;••• ^ 19
Suffering principal to escape not liable as .... • .^ • • • "" ^g
Other omissions • jg
Employing another to assist felon •••;•••••••• ,9
Wife receiving from husband not punishable as 19
•Rnt this auDlies to no other relation
Can be none in high treason ^i
Nor in offences under felony ; • • • *
Say be indicted though principal not convicted ...... ..--^^ ^21
Receiver of stolen goods an ^^^
To murder, punishment of ^^^
i,"arb:S'r»;-;uh;:;ouM-tVyp*;^pai;;io„y::65r
"„ offence under Forger, Aol, pto of tnal ot 657
Accomplice. 56
None in perjury 898
Rules as to evidence of
Action. 638
Qui <am, in Quebec
Address of counsel. g35
On criminal trial, how regulated
^"TSand, place of trial of offences -^^^^^^^^ ,^
jurisdiction of 647
Remarks on this section
^-T;;-" -need, prosecutor u,.y give in evidence 6»
Adulterer. 250
Larceny by '
Advertisement. 460
For recovery of stolen property
■
18
•
14
,
15
,
15
•
15
.
16
d
,
16
«
18
•
19
■
19
•
19
• ■
19
, ,
20
• •
21
• •
20
• •
21
• •
21
51,
658
f •
142
. •
117
, ,
657
^ ^
657
''t:;::i':'""---«"«.p™.>..
i;»in.™„cec«;;: ..■:: »
fe^^r:~'"-----'---:: ••••••••■••• ^
Wi-t constitutes an.. ''''^^^
Agent. "
Commission Of crime by. ^^
^,;;^^.. or employer ;h;ni;v;;;;: 6
oustod,..!.^;;:^^-;P-P-. entrusted i^^^^^ ^««
Foreign, trial by court martial for ""''^
Or other coM,petent court... a,
Aiders AND Abettors. ' 33
B"tno.duL,r::::ni:r--...'/:.::::;;;:.v J
Participation necessary.... ^^
Inciting to suicide... *• f
UnWulcombinati V.;: ...:;;:'i' j.f
Murder by duelling * .; ' n
P-ons present at prizefight II m
May be tried before principa ! u
";:;r:rr-^"--"«^^^^^^^ ^
In manelaughte '"'"^''"^'•^<-. etc.... f
^ 75
117
iMi
n
III
1104 INDEX.
Aliun. pa««!
Marriage by, out of Canada not bigamy 76
Not entitled to jury de medietate linguce 806
Allooctds.
What is 974
Omission of in capital cases, ground for writ of error. 974
Alteration.
Of any document, when forgery 488
Animals.
Killing, with intent to steal carcass 293
Domestic, stealing 293
Amendment.
Of indictment for stealing ores, etc., as to ownership of
property • 736
Fcff variance between allegations and evidence 916
Or after plea of misnomer, etc 776
Of formal defects in indictments 778
Greaves' MSS. note 785
Remarks 918
Greaves' MSS. note on 932
Appeal.
From order of justice for restoration of mined gold, etc.,
discovered by search warrant 683
And new trials, proceedings on 978
May be to supreme court 979
No appeal to any court of Great Britain 979
Remarks 980
Appearance.
Of accused, proceedings to enforce 678
Justice may issue a warrant 678
Or a summons.. 678
As to felony committed on the high seas 678
Warrant to apprehend person against whom an indictment is
found 6'^9
If warrant is to be issued in first instance information to be
on oath r 680
And so in case of summons unless otherwise provided 680
Nature and service of summons 680
Proceedings if summons not obeyed 680
p«>oeed,-„g;-„;- -;_ j»"«d,oi,„„ „f ,k.
°'""--- "-«'^:v;;;.::::;- ;•■•••■.•■••;;:;..••:;; :S
AwBramio.,. ••••• 55°
£rr-'^rr.':!°™™"'«>..".-...,.. „
Wthout warrant, by an offl"". ^^
By person to whom proner^ ""^^'^ «*««« .... ^^*
Caught in theactl r-V''^^'-^*^ ^^r saJe ^64
Lying or JoUerintir the, \^ ''■•"« ''^
^ottobedetain5:,f;„^^f-J dur^ the-JiLV.: ««5
Coinnntting coinage offe„cr'''^"'^'^^»«d-y....;;:---\l'
Kemarks.... 665
In district where' ^ffe'nV;:;; *.*::.': ^65
"nence not committed, nroP«l^* ^65
Apprentice. ' Proceedings gg.
Neglect to provide food, etc for
Mahcious/y causing bodJr^?f'
is endangered... f^'^'^'*"" to, whereby hY;;;—;- ^68
^''*'^- • 168
s:S"-— -.-r
Arrest OF JUDGMENT 671
AEsoif. 99Q
Setting fire to shin with Jnf .
To churches, etc *'"* '° '""'"der
S:S,Ss:~-Si-.»v::::;;r-:---:^
VVV 566
1106 INDEX.
ARaovi— (Continued.) page
. Any public building 5g6
Any other building , 555
Goods in any building 553
Buildings, attempt 57O
Forest, tree, etc., by negligence 571
To crops, etc 573
To mines ggg
'■I'o ships gQQ
Art.
Malicious injuries to works of 595
Assault.
With intent to commit eodumy 67
To commit indictable offence 134
To prevent apprehension or detainer 134
To commit rape jg7
^o'-ob '....V.V.V. '.'.'. .".'.'.," 315
Resisting revenue officers 184
Obstructing execution of process with intent to rescue goods
taken jg^
Occasioning actual bodily harm by 134
Common, punishment for ^84
Indecent, on any female 207
Indecent, on a male gj
By person armed, with mtent to rob 331
Verdict of, in cases of felony including ggg
Bemarks on this clause p .g
With intent to rob, verdict of on trial for robbery 882
Costs on conviction for
In pursuance of trade combination
To prevent person buying grain, etc
Or working oil ship
Assembly.
For religious worship, etc., punishment for disturbing 64
Assembly, unlawful ag
(See Unlawful Assembly.)
Assizes.
In Ontario, commission to judge of. ]024
Attainder.
Plea setting forth when allowed §03
Effect of '..'". !.'!;".'.!.'. '.1069
PAGE
... 666
• •• 666
... 668
... 670
... 671
. .. 678
, .. 685
... 600
Attempt. '™^- 1107
Conviction of, on indictment for ,o,J. p^«b
Joprrsrr. -^^'■::::-::::::- ^
To commit rape.... '*'"' ^'''^ ''^^^ 'ntent •- J^J
Verdict oj;„„,,;,J«er«.je..,,^ •■•7
Selling without autiiority vaJual.lVJ * * ' "• 407
pertrwThoutlllltof" ^^^^^^ appropriating pro-
ArTK.Po.sAc,uxT. Aaxa.™ Jv^ '''
Wiiat ,8 aufficient to state in plea of
Form Of plea Of «„../.,, ,,,r.^°^ 791 -
Form of replication 792
Greaves' MSS. note on...;;;:;;;;;: 794
Bail. 802
Forging recognizance of....
When justice may admit to..: 527
r '''^''" ""P^'-'O'- or county court'imJl' 691
In case Of treason or capital'^feCy'"'"^ 6,2
Warrant ofdeiiverance on admission to «^2
692
1108 INDEX.
Bailee. faoe
Larceny by 281
Bailment defined 283
Di v'Bioii of bailments in Coggs v. Bernard 284
Bank.
Cashier, etc., embezzling from 407
Making or having mould for making, paper with name of
any 508
Banker.
In Larceny Act, what is 280
Frauds by 407
Conversion of money, etc., entrusted to his care 407
Selling without authority valuable security, etc., so entrusted 407
Fraudulently selling, etc, property entrusted to him for safe
custody 409
Bank Note.
Forging 503
Forged, purchasing or having in possession, knowing same
to be forged 505
Making, or having moulds for making, paper for 506
Engraving, etc., plate for 607
Bank officer.
Making out false dividend warrants 495
Stealing or embezzling by 407
Bank post bill.
Forging 503
Forged, purchasing, etc-, knowing same to be forged 506
Baptism.
Register of, forging 627, 528
Making false entry in 527, 528
Barratry.
Casting away ship, with intent to murder 152
Maliciously BO*"
To prejudice underwriters 600
A ttempt, when casting away would be felony 600
Bastard.
Mother, or reputed father, getting possession of, not child
stealing 215
Evidence at trial for murder of 907
Bathing.
In pu blic, an indecent exposure 7^
INDEX.
Battery ^ ^109
(See Asflault.-k *'**'"
n ' 193
Bawdy HocsE
Beooabs. 7Q ^2
When Ioo<,e, idle or d.Wjerlyperaon-
BE^Enx OF Cleroy. ^ P"^o««. or vagrants ^j
Abolition of, not to oreveni ;«: j
„ ^'°" P-' "d,r Of oa„„e, ,•„ i,.j,„,^^
Remarks on ... .
„ 712
Bfi.VCn WARRANTS. I yj^
May be issued
BesetTINO HOUSE. g 79
Punishment for.
B.Ji',v;: •■••••■■••■■•'■•::•■::::;: «»
--• ■■::::::::::::^
Punishment or
ExoEPTroxs.-(a) WhlrV second' m^r* " " * 76
byperson'not a British subject '' '' '^"^ '' ^^"^^a
(6) Where husband or wife haTh 1 76
and not known to be lT:fng '"" '''«^"' ^^ --a ,ear; ''
Bill OF EXCHANGE. 656
Bank bill, forging .
Drawing, etc.. by procuration'witho,;;';:;; 'V 612
Jorgeryof. however designated "''"'"^ 621
Bill OF LADING... ^ 531
^Jee interpretation d;;;;^;;;;- — 278
Stealing, knn„g,,„^.^.^^
p'^ , 293,599
^concealment of. .
Verdict Of. on indi^lme'ntfo;;;;;^;; 221
Forgmg register of '^*'^ 865
627
.'Si
!'!
1110 INDEX.
BOUII.T HARM. *'^°"
OauHing with intent to murder ^^^
Attempting tlio same 1*^2
With intent to maim, etc 188
Conviction may be for, on trial for felony 866
Or to resist apprehension or detainer 168
Rfniarkfl, maim, disfigure and disable diBtinguished 161
Indicting with or without a weapon 163
By administering poison 16'
To apprentice or servant whereby life is endangered 168
Causing explosion, etc., with intent to do.. 174
Placing gunpowder, etc., near building with like intent, etc. 174
Setting spring gun, etc., with intent to cause 176
Doing or causing by furious driving 182
Or by omitting or negligently doing one's duty 183
Assault occasioning actual 184
Body corporate.
Director, etc., of fraudulently appropriating property 412
Or omitting entry in books of receipts of property with intent
to defraud 412
Destroying, etc., of books with like intent..... 412
Making false statements, or accounts, with intent to deceive
members, etc., of 412
Bond.
Stealing 278,295
Forgmg 510
Books of account.
Making false entries in, to defraud creditors 638
Boom.
Maliciously cutting adrift 606
Breaking PRISON 57,61
(See Prison Breach.)
Bribery.
Securing influence for Government contract by 631
Not triable at Quarter Sessions 642
Bridges.
Maliciously injuring S'^^O
Building.
Stealing fixtures in 305
Setting fire to public 566
To any other 567
T> INDEX. 1 , , .
BoaDivo-CCon/inMei.) IHl
I'o goods in PAOB
Attoinptirigflanie 668
Malicious injuries to/by'exni'i "i'l*; V*. ^^^O
By tenants.. ' J^^ «^P'««'ve subatancea g^j
Sending letter threatenitljr'to V.nrn '"'-.V*'- ^^^
money ' ""^ '** ''"'^" """» "itent to extort
Bpoy. ..625
Cutting away with intent to .leatroy ship
*aHtening vessel to / »«"p gQj
Bullion. 606
BuROLABir. 541
General remarks on . . .
The time of con.mitting (ii;;;;'.'.'.*.'.*.'.' ^^^
Theplace 336
What isu dwelling 'i;;;;;fo;p^;-;;-- 336
Themanner *^ rpose of g^g
The intent .' 342
Breaking and entering ihuVci,';;;; ^*^
Building within the ourtila<^e hnf 'J;li ^49
not partof dwelling house «^'"'^"^ communication,
Breaking and enterin^g dwelling*!;;;;;; ^^^
Or comrniiling felony «„J |,re.ki,ie oal '"
C.':"f .'!:':r'r'" "°- -"" ■■■"'-'■io' «;;,;;i; '"
Being found armed or di;;ui;;d "wiih ' ini' T/ "i ^^^
enter house in the night... '"' ^^^ ^'"''^'^ ^"^
Punishment for second offence ^^^
pSint;::;:;-' ■- ^^^■-'"*'-™.::::;;::;; ??„'
ve^diaro, braking „a;;-.;;;„:;;i-,-;^^^
Proof of, nodefenoe ou liwfoVhoi'eVi'r^ak;;; !^'
Burial. ""-'"o 883
Forging registry of
627
1112 INDEX.
Calendar month.
Computation of a
Canal,
Malicious injury to works on
Capital punishment.
Provisions respecting
PAGE
.1054
. 588
.1048
Convicted felon to be kept apart , 1049
Judgment of death how executed 1050
Carnally knowing.
Female idiot, or imbecile or insane woman 69
Inducing, etc, girl under sixteen to resort to premises for
purpose of ; 69
Reasonable belief that girl was over sixteen a defence 69
Ona uncorroborated witness not sufficient to convict for 69
Defendant competent witness on his own behalf 69
Prosecution to be commenced wiihin a year from commission
' ofoflfence 69
Girl under ten years of age 204
Between ten and twelve years of age 205
Under twelve, attempt at 207
Carnal Knowledge.
Remarks on 198
What is sufficient proof of 907
Cards.
Cheating at 442
Case reserved •• 965
(See crown case reserved).
Cat.
Stealing • •• •• 293
Maliciously killing, etc 599
ClTTLE.
In Larceny Act, what expression includes 280
And in Malicious Injuries Act 658
Stealing 291
Maliciously killing or maiming 597
Attempt
Sending letter threatening to kill, etc
697
625
1
« INDEX.
t£RTIPlOATB. 1113
Of Clergyman, etc., wanderin. ,!,» . . ''•>'=E
To constable of delivery w °/;V 627
Challenges. ^ aeiendaat to plead g^^
K^jp.^-::r:r:::"' Zs.
And by the crown... 807
^^^Sr£-ir^£^;^i::;:;:::::::;;;;; -
Chance MEDLEY. 818
Definition of
Character. 1^^
Cheque. 4^2
Caa!™*"°"^*"°S o'ossrngon ^^
Murder
Neglect to pr;;i*d;7;;;;v;;o\hV-— loe
Concealmg birth Of. 215
c.™„?„t' "■ °" '°*-»-fo;.-;*;::.v;;;;;;;;;;; iij
Caor"""'""-'-"'-"--"'— "..--elony ,„
C.»„r'"°''"°'^"'°-'"''f«>on, ,,,
Rioters demolishino-
365
! <
m4 INDEX.
FAOB
Churchyard.
„ , . oOo
Stealing fixtures in g^g
Injury to statues, etc., in
Clergy. .^^2
Abolition of benefit of
Clergyman. i „ h u *-.,«t
In discharge ofhis duties, punishment for unlawfully obstruct- ^^
ing
Clerk. gg^
Stealing by g^g
Embezzlement • •*: '/V,ill
In employ of Government of Canada, making out false ^^^
dividend warrant
Coal. 585
Setting fire to mine
Codicil. ^^2
Stealing .'.*!'. 611
Forging
Coin. 535
Offences relating to, act respecting ^^^
Counterfeiting current gold or silver ^^^
Coloring .!*. 541
Lightening ••• 5^3
Importing and exporting counterfeit ^^^
Uttering or having with intent to utter
Counterfeiting copper coin, or having tools therefor ...... MS
False or counterfeit, tendering, knowingsame to be false, etc.. 5«
Foreign, counterfeiting •'• .
• Making, etc., or having possession of tools for coining 551
Conveying tools or metal out of mint, w.thout authority .... 555
Suspected of being counterfeit, may be cut. »
Uncurrent copper, manufacture and importation of 550
Counterfeit, destroying in court
Place of trial for uttering in more places than one bw
Search warrant for counterfeit
Coloring coin. 5Ug
Punishment for •
Combination. g25
Trade, to raise rate of wages ^^5
Unlawful assault in pursuance of ^^^
Preventing exercise of trade by • • • • • * * * * * * * " * * " " .,9
Act done by, no ofifence unless made punishable by statute.. 62a
Committee.
INDEX.
Oflunatic, neglect to provide food.
Commitment.
By magistrate after prelimi
1115
. , PAGE
'*°-'f<''- 168
Of witness in cer;:^ ca e« ' ^nyestl,at.on ess,
689
690,894
.. 184
Common assault,
Punishment for
Commutation of sentence.
Crown may commute sentence of death
Form and effect of commutation... ^^^^
C OMPOUNDING felony ^075
Birth Of chi„. by ,eore. dta^.i.i„„ „f ae«i tod, ,,,
Wilis, codicils, etc '.'.'*.*'. 301
Confession. 302
Of treason i„ „pe„ „„„„ <,„„,,.
co2r" '"""-'"•-""'"-^ .'vri;-;;;d; -:
31
68d
•68,191,206,207
In case of assault
CONSPIBAOV.
To intimidate parliament...
iomurder 30-31
To obstruct trade..,. .'.*.*. 141
Punishment for, where none* is n.V'V *, V * 626
Remarks on.. ......'!."^"/'P'°^^^«^ by statute 632
Constable. 636
Arrest by, without warrant. ...
Contempt. 664
Of court, arrest without warrant for
t^ONTB^OT. 670
Criminal breaches of...
When breach may enda'nger' life.*. ^^9
Mahce ed not be acrainst a nart; 1 ■ , 630
Corporation, etc.. to C; 00^ " t '"^'^'d-' 630
P copy of provisions posted up 630
i ' f
PAGE
. 631
. 631
. 631
. 631
. 631
. 631
1116 INDEX.
Contract— ( Continued-)
Penalty for neglect •
With government, frauds with respect to
Making gift or offer for influence, respecting
Punishment for accepting such gift or ofter
Making gift or offer to person tendering for
Puniwhrnent for making or accepting such gift
Public officers receiving gift, etc., for assistance in transacting
business with the government * ' ^32
Offender in these cases to be incapable of holding 632
Prosecution must be commenced within two years from
commission of offence • "^^
Contributory uEGiiioENOE.
In manslaughter ^^9
Conversion.
Bv a^ent. etc., to his own use of property entrusted to his
' ° 407,414
care.
Conviction.
(See Previous Conviction.)
(Coroner.
Proceedings on findinfr of felony on inquisition by 694
Penalty for contravei ion of provisions 695
Duties of, on execution of felon..., 10.50
Inquisition of, an indictment 6*0
Corporation.
Municipal, criminal breaches of contract by o-""
Must keep provisions relating to, posted up
Penalty for neglect •«
Indictment against, for misdemeanor 80o
Proceedings in case of non-appearance
Corroboration.
On trial for perjury, remarks on
For procuring feigned marriage, of one witness necessary..
And also for seduction, etc ♦• °^
And in forgery, in certain cases ^00
Corrosive fluid.
Throwing at, or applying to, any person 174
630
681
805
47
75
Costs.
228
On criminal information for libel by private prosecutor. .
May be recovered by distress or by action 228
On conviction for assault ^^"
Address of, how regulated in criminal ♦ ■ , ' age
5""^''^« on "1 criminal trials ^
Dutieaof. at trial... «L
ri ooo
touNTERPEiT. 839,842,844
(See Coin.
Counterfeiting.
The great seal, privy seal, etc.
"OUNTS. 4gj
Co.?'^"°°'"^^°"'"«»-^"e«„,,„^ „^
Records Of, Stealing..
/^••g'»g r.'. 303
CoJ;r"'^''"^'^-'^^^""^^-^''^^-oy.- «23
^OURT MARTIAL. 626
Trial by, for levying ^^^
Creditors. 3132
Infamous
(See Abominable Crime;; 66
' FMINAL PROCEDURE act
^Z'\- 640
Setting fire to
Atiemot.
p„„ ^ 678
Crown OASES RESERVED. 678
CatsbTJ'"'"'*^^--rved...
cou t thai, : ''"''' ''' ^^« «<'"'•* oV. ;; ^^s
How 'r'*',*"'^'^^^'-'n'ne case ^^S
Jul •'!"''"* '^^" b« certified . 966
D,„ "aybesentbackforamendment.. .;;.;;;; 9^7
■ 967
J^ialicious injuries to..
^'''^- 688
Court pronouncing sentence of
Judgment Of, how executed. . 1048
1060
Ml
II If.]
! pi
- « 1 Q INDEX.
m^ PAGE
Debentures. 497
Forging ••; 497
Making mould, etc., used for ••••• 493
Or procuring paper.,...-.; 7:;" ■.'■**,LVeV 'either within
Alt-- , V or "tteriPi knowing it to be aiterea, e ^^^
t y _f.': ':, , t Her Majesty's Dominions
Deolara- 806,901
OfQuttKer,etc., in .ertam cases •••• 2
Solemn, in lieu of oath....
Defamatory LIBEL. 225
Punishment for publishing 225
For maliciously publishing ' ' ""'^\ . , 225, 227
Procedure on trial
Defilement. , ^f„„o 205
Of girl between ten and twelve years of age^.. ^^^
' Under ten years
''"^Xn prosecuted not entitled to delay for purpose of, as of ^^^
right ;;;;:::; 773
Objection to indictment by ;" "
Deodand. 1068
Abolished
Deposition. ., ,, . „* 853
. Person under trial entitled to inspect ^ _ ^^^
Person indicted entitled to copy ot '.;.... 901
By sick person, of evidence for criminal inal ^^^
May 'H' used on trial on certam conditions
Omitting entry in books, of receiptor prope y ^^^
to defraud ,",','"•"/ *! ! 412
members, etc
Disorderly houses. disorderly persons. 72
Keepers or inmates of, are icjse, »"!'=
Dividend warrants. . .„aL-;n(T ,...495
False, officer or clerk of government making
Dock yards. 566
Setting fire to
Document. 531
Forging any " "'
INDETT
Document op title. * 1119
Togoode, what 18.... PAGE
Rolands, stealing, etc.... 278
What 6ha]I be charged in inWctat'.V 301
Doofi. 727
Stealing
Killing or rnaiming.'.V.'.V.V;;;; 293
Domestic ANIMALS. 69a
Stealing
Killing or lulhibg ;.;;;;•;;;;;;; 293
Charge to Jury as to..
^^'^^^^0. ggQ
Unlawful meetings for, prohibited
Pun„hment of instructors at 34
JMay be dispersed and persons ^ft^J 34
Drown. ^'^°^ *"^nding arrested.. . ,*
34
Attempt to, with intent, etc
^«^«- ,. 162
Duelling. " 218
'^n:;:s'rs::.:"--^^--o.cri^
Remarks on niurderby.. .*;::;::; 12
Dwelling HOUSE. 113
Committing burglary in.
^ --^r;-.^^i:i :~ f ::::: -
Dhng declaration ^ of indictment 710
" 140
il t i !l
I III
1 ')
ii
il li
If-
il
1120 "■'^^
''""Crineot.w to differant charge- of larceny 888
Elections. , . 4 403
Stealing documentB relating to.. g^g
Or wilfully destroying or damaging same
Electric telegraph. 591
(See Telegraph.)
Embezzlement. 334
Remarks on '* 333
By clerk or servant ....407
Or cashier, etc , of bank. • • • • • • * ' ' ' * ' * "
Of any property so as to deprive owner of the use of ^^^
Parshm;;VwheVe';;i:i;;Vs«;h';;:FH; \^^^r mo..... 452
pEoTtrial for bringing into Canada property embezzled ^^^
'B:^::::!o.;Vau;c;H;;o;M;a;e;iV;o;^^
Sinct acts of. may be charged .n md.ctment 72T
Verdict of larceny on trial for, and vice versd
Embracery. 6.^8
Punishment for *.'..*" 639
Remarks on
Engine. . 586
Used in mine, destroying, etc ^^^^ gg^
Of railway, obstructing
Engraving. 507
Plates used for bank notes, etc ^^^
Figure or device on same ^ ^ _ g^g
Plates for foreign notes
Error. „_ . 972
Writ of (See Writ of Error)
Escapes AND rescues. 57
Act relating to ''^^ 57
Felonious rescue..... ^^ ' 57
Escape from penitentiary **.'.'.'.*.'.'.'.'. 58
From reformatory .'.'.. 59
Escape defined 59
Voluntary and negligent....... • g^
When a felony and when a misdemeanor ...... .y ." ^^
Rescue defined /• 52
WhPn a felony and when a misdemeanor .•••••
Pe^rallo* g pri.o«rtoe,cape '-'_'^_'^^^_^ZT. i,
fact
1 1
w INDEX.
Estreat. 1121
^'''^'^i^CE. ,jjy™
For periurv „
1^ rjury
Bioters destroying building. 47
Obstructing clergyman in flisc'ha;.: *oV i •* 'J .^7
En icinff irlrl intr. 1 •■ai.nurge of Jus dutv
Bigamy^ "^ ''•'"'" "f '"-'■«'»e ^«
° V ^i
Endangering life or health nV 1 : 77
Setting «pnng-gun. et 'wul ^ir:' ^ "I ''^^ -gleet.. : il
Endangering safety of ravelWo '° ^« bodily harm n?
Assault on peace officer '' '" '""'"'^^ ^y "eg'ect J;^
«ape, and aaaault with intPntM ]«/;
Abduction fro. .otiv;:^! .ereT '^ ^^^ • ' 20
Gulty knowledge in uttering for™?";:;;,; 208
De«troy,ng building by explosion^ ''"'^'"* 481
Of defendant on hiroK^I^ ""^ ^'"^^ offences ^«
convictio:t:^^CJ;t^^^;^«i^^ in th^;- ^ , -
'^«t'on .!. ' '*°-' "'^^ admmsible in civil
Nor for stealing tree. etc:;;;;;edi;*;;; n'* "'\ 302
same to be stolen... °^^'^'"g|iO m value, knowing
Nor Of fraudulent embeill'e'n;;;; V ' a' -310
On cnmrnal trial in such ca ea etii ''"' ''^''^'••- ^0 2
2^ process la civil suit noTad'i s bjT """ '' ^""P'^'"
Unlawful possession by workman .? 310. 402
gold, etc. ^.,,,y.„,;:;^^2^^^ •" -ine, or smelted' '
couS^::::".:f-o^n.nttopro;;th;;;-/^^^
On prelin.inary hearing before* ju'stice ^''^^^ ^08
Of.nterested person on trial of oS e "'n-dlr F ^89
suffic.ent without corroboration ""'^''^ ^'^^ ««*
;?:.tt:r-£::;:-::::::::::::::;::;;;::::-
Of.p„,„a„teoragai„st.„o.pV;;;;- 898
WWW 89r
f i
1122 '»I'«-
Exchequer BIIX3. 497
Forging •• ••• •*' * 497
Having pospession of mould, etc., ueeu lor ........ •
A^l procuring paper used for without -^^^;^--;;;i^ Z
Excusable homicide
Explosive substance. jgj
Dentroying building by, with intent to murder. .. .......•.• ^^^
Causing bodily harm by •••••• y * ' " * " * 174
CauBing to explode with intent to «-"«^.b°f -'j^^J" ... 174
Sending or delivering to any person with hke intent ^^^
And placing or throwing upon buildmg - ^^^
Malicious injuries to building by . . . . . . • ... •••••'• •***'.... 604
Placing or throwing on ship with intent to damage
Extorting. ...613,625
By sending threatening letters
Extra-judicial oaths. ^^ ^
Act respecting .'.' 1
Unlawfully administering '''' j
Exceptions •' 2
Solemn declaration in lieu of oath • • • • • ^
Form of.... 2-5
Remarks on this act
ff actor. 407
tody • • •■ • ■ J.' *w ' ' 'ev "for his own benefit. 409
Selling property under P«^^' ^^ ""^^'^^^..^ ^i^iout author-
Obtaining advances on properly of principal wiu ^^^
Hy
False personation. ^gg
Of owner of stock
False pretences. . . ,
• 1 i», 91 vpars of age to have illicit mier
Procuring girl under 21 years 01 ag ^^
course by " ". 42O
Ohtnining money by !!!'.. 421, 440
What constitutesotrenceof.......... •••••• •••••• ••* 440
Inducing person to execute valuable security by
I I
V INDEX.
False ^nzTf^scm^-iConimued.) ^^23
£?^^^r:sr-— '^:
Obtaining pronertvh„V^''^-'P*8«age by. ^ !!:
JMo defence on trial for. thaf #a«. 797
ve^ic. „, „„ „., fX' „7" ""»''"' '°'«-"y.... :::; S
False REOBiPTs. ^ gg"
F«,!"t;r""' "-■«™«'or«.i„ ^_^
Death caused from ....
Fences, *"" «
a, ,. 137
Stealing or destroying
Secondoffence....?;;::;:;:::; 310
P»m«l^n.ent for unlawful poasesHio;*;^ 310
Malicious injuries to... 310
Finding. "» •• ^^0
Larceny by
PiMES AND FOBFEITciEs.' 265
Act respecting
Recovery ofpenilties wh^^'no other mn^' *■ ^046
To be ong to the crown, „nle"s o L ^^ ^' '' Prescribed. . .1046
May be applied otherwis. ■ order iTn """""f''' ''''
Limitation of actions.... ^ ''"'"'^ '» ««»ncil
*'^«jr'- • 104?
Malicious injuries to.
*^«'"'^RK8. ggg
On buildings, stealing.,
^^^^uiiestol^ tenants....::;;;;;;-;;;;; 306
vr„ . . 674
Po,.?.'""""' '""'="°'"«' ■>• '"'I for .„.„„, ,^. ^^^
FcSS'""-"^ "»«'%'- J
FOKGERY. j.g
Act relating to
Of great seal, etc 488
Letters patent and public r;g;sVe'r; ^89
* 490
lil
1124 J^^*'^-
, ^ PAOB
FoBOEBY— (CVmitntied.) ^gj
Transler of stock, etc ,••;••*; 497
Debentures, stock, excliequer bills, etc
8ta.rp« V 503
Hank notes V '.""/'"/"Z"" 506
Making paper and engraving plate for bank notes, etc.... 606
Deeds, wills, bills of exchange, etc ^^^
Passenger tickets ' „„
Records, process, instruments of evidence, etc 5Z.i
Evidence, etc • -05
Notarial acta, registers of deeds, etc
Orders of Justice of the Peace • • •• ^^^
Marriage licenses *,*,'* \V fi27
Registers of births, marriages and deaths "^ •
Demanding property on forged instruments WU
Cases not otherwise provided for ^'^^
General remarks on *• ^^^
Delinitions ' ..464
Nature of crime ^g^
At common law • * ' '. .„_
May be complete without publication or uttering 47T
Uttering •• ^g^
Necensary proof on trial •'•
Not triable at quarter sessions '»°«'
Place of trial of offender or accessory -^^^ «o^
Intent to defraud in ' ^^^
Form of indictment for
F0BM8. 1Q26
In second schedule remarks on
Fbaud. 531
With respect to government contracts
Punishment for, when not specified m act 0^^
FbATJDULEKT INTENT. g^^
In forgery, remarks on
Fbuit. 311
Stealing ".'.*.*.'.'.'.'.'.*.'.*.'..'.'.. 583
Damaging
Fdbiocs driving. jg2
Causing bodily harm by
Gabden. ^^ 311
Stealing fruit in g^g
Or destroying plants
1 1
Gab. ^^^"^ 1126
Crlminftl breach of contract to «upp|y "*"«
Stealing of gaa ^^^ 629
OAHpfe. 257, 889
0„r"°°"™' '-""•—".itWin „.,
Stealing
Destroying '.'.'.".*. 310
Gaol. 684
inn liaspd, to gaol of county wIiBrA««- ^°°
Girl. ^ ^"^ °^^"°« "'as committed. 666
Under twelve years, attempt to iV;;.*. ] V.*. I't
Under sixteen years, abduction of ^^^
Glass. 212
Fixed on house, &c., stealing...
Grand JURY, ^ 305
Swearing witnesses before..
Name of witness to be indorsed on" 'bill ^^^
And initialled by foreman... ^'^^
Who may be examined before'..' ^^3
Remarks 833
Evidence of proceedings' before' ^^'^
Not to ignore bill on ground of' ]lZi;;Z H^
Special enactment for Halifax ^^^
Grain. 1026
Giving false warehouse receipt for
Conspiracy to obstruct sale of '*^^
Great SEAL. 627
Forging...,
Greenhouse. * * 489
Stealing plants in
Ordestroyin<».. . 311
Goods. " 683
Document of title to
In building, setting Are 'ti.'.'!.'.*.*[ 278
Guardian. 568
PunisUmea. for „eglec..o provide ™rd.Uh food, etc les
i' '
h' If
III'
I
1126 ^f^^^-
Gunpowder. ^ p^gg
(See Explosive Substance.)
"Trnrindioted n,.y be brought "P_ |or_ .rr.ign.e». ^^^
without. ....-•• ggg
And also witness from penitentiary
Habitatiok. ...1033
Form of indictment for offences against
Handwriting. ... 913
How proved on criminal trial
Hard labor. 1Q53
Provisions as to • ""
High seas. . .-
Place of trial for offence committed on ••••
For offence committed on, any justice may issue warrant 678
Proceedings on appearance thereon ^^
High treason "*
(See Treason.)
°TppIehen.ionofperson lying orloitenngin. in thenight ... 665
Inltmentfor n^ repairing, local description neceasarym ^^^
body of '
Holiday. , . j .679
Warrant by justice may be issued on
Homicide. gg
Remarks on .**" V 142
Excusable, no punishment or forfeiture ^""^ ''''''''''''' [{{^ ^43
Remarks on
Hop-binds. 5-^9
Maliciously destroying....
Horse. 291
Stealing ' 597
Maliciously killing
House 37I
Stealingin '* 374
With menaces or threats '..'.562
Setting fire to • • g25
Sending letter threatening to burn •• ••
(See Building.)
(See Dwelling House.)
_ INDEX. , , „^,
HOPSK BBEAKINa. 11-4/
(See Burglary.) pagb
House of ill-fame.
Ketr„f,^r:„tTro:ei;r°7---; ^o
j_^ Of „., p^p,,.^ ,.. Q„.^^^_ ^^^^^ .^ ^^^^ ^^ ^^^
Penalty for leavins hol^ .'n ^„ • i_,
pose Of obtaining. "*'^'^"^'' ^**«'* open for pur-
IwoT. 182
Punishment for carnally knowing. . .
Illicit iNTEBcouBSE. ^9
With girl under sixteen years of age
Under twenty-one years.. 69
Procuring, by false pretences ' '^\'ri !,nV ' ** ^9
with man other than procuVr " *"'"*^-°°^ *^ '--'
impabL"""' "'' '— f iii.fan,e foi pj;;;;;;;* ;;:;;:::;;;• ] II
Person prosecuted not entitled to, as of ri^hf ^.i .
pose of lo, as ot right, delay for pur-
Definition of .*.'.*'..".'.' 771
Special provisions for Ontario '^^^
Impopxdino documents 1024
Impbisonment. 893
Provisions as to
Inciting. 1052
To commit an indictable oflTence
Indian Graves. 861
In British Columbia, violating
Indecent assault. ^<*2
Upon a male
Upon females 67
Punishment .'or 207 ■
With intent to commit sodomy*.'.'.'.'.'.' ^07
Indecent EXPOSURE. 67
Punishment for
Remarkson 71
In public place, local descrintion 'n'l* •" *, 73
ment ''^^^"'P^'O'^ necessary m body of indict-
711
if!
'! I
lili l\
i
iifl ^
1 1 OQ INDEX
11^° PAGE
Indictment. 640
Interpretation of word .,',.'..'. 696
Against a prisoner. • '.*!!]/.'..'.... "^08
Provisions respecting ''^^ ^Qg
Need not be on parchment.... •...• ^^g
Venue need not be stated in body of
Cases where local description is still necessary . ...... • •
Abolition of benefit of clergy not to prevent joinder of ^^^
counts as before i"'i""'A 725
More than one act of treason may be charged ^^^
For perjury, what shall be sufficient • ^^^
And for subornation of perjury •'•••• ^^g
For murder or manslaughter • ^^7
Stealing, etc, document of title to land ...... •
.. Distinct acts of embezzlement may be charged .......
Obtaining property by false pretences, wli.t shall be ^^^
sufficient to allege V * "1 1* "/ "J^ *?ntlnt fo
For forgery where it is necessary to allege ^^^ '^^^^^^^ *^ ^^8
defraud the same ;••••. -29
And for buying or selling counterfeit coin ^^^
For ofifence against malicious injuries Act. . .......••• • • •
Cases in which ownership of property need not be alleged. 730
Ownership of partners' property how stated in '
Partners, joint tenants, etc, how described
Property in turnpike road how to be laid ^^^
And in possession of public officers ^^^
FoTsTe'alingores'and'minerals, property how laid 736
And for stealing stamps •,•••••*'. ;' * t\7
For embezzlement by persons m the public service 73T
StPaline property let to hire, or fixtures .• •
Description of bank notes in ^^^
And of instruments generally ^^^
Of instrument in indictment for forgery ^^^
And for unlawful engraving
Several accessories may be included in one ^^^
And three larcenies charged
For stealing, may have count for receiving ^^^
Receiver of stolen goods, how indicted
Separate receivers may be included in same
Index
iNDICTMENT-(Confe-„„cd) ' " ' i ^^^9
For offence after Dreviona ^/^„.,• *• , '"^o"
Form P;^;';';^««»^'«t'on,what8hall be alleged 753
As to certain offences nrll'.LV 760
Notal^ted b.reas:T<;iXT.e?:r"^"^ ^^^
Objection to, when and how taken "«
Prisoner entitled to copy of '' "8
Indorsement. ^^^
Forging
Infant. 517
Neglecttoprovide food, etc., for.
Infamous CRIME. 168
(See Abominable Crime.)
Information. ^6
Must be on oath and in writing...
Included in word'«indictmenr"...'.V.'.*.V ^^®
Insane PRISONERS. ^^^
Jury may be required to find speciallv
Lieutenant-Governor may ma£ordef;V'''V ^^2
IKTENT TO DEFRAY,. '' '*'' *'"^^'^^- - 9^2
False pretences
Forgery 72^
Malicious injuries .* 728
Intimidation. ^30
Preventing person doing anything by . . .
^^^^^...gpurchaseoflandatAi
O^^Trditrr'"^"-^-fit of clergy ,,,
And of defendants .'].*..*.!.*.* 716,948
Jeopardy. 724
Having been in
Wh at constitutep ....*.*.'.'.'.'.*. 796, 797
Joint TENANTS. 864
In mining claims, conceaHn<r „«u
co-tenant 'J'onceaJmg gold or silver found from
How described in indic'tment 315
731
i I
1 1 9rt INDEX.
lloU , P^OE
"^'° May commit for perjury committed before him .. .... ...... ^^
Forging name, etc., of. g92
Admission to bail by order of • • ' • ' "^ ' * ' ' * gg^
Change of venue by •.••• * •"' io5l
Sentence by, against prisoner tr.ed by another . ...... ...... ^^^
Charge to the Jury
JcBOB. 638
Punishment for embracery
Jdbt. 805
Wiio are qualified to serve on..... •.♦.••••• gQg
Be medietaie lmgu(B, alien not entiUed to. ... ^. ;• 'J* ' '^^ •
Quaker summoned make solemn ^ffi-^-^^^J^^" '^^^^^^ _ '. . .t gOG
sworn •'***.* 807
Peremptory challenges to, by prisoner .....•• g^g
■ And by the crown "•;••• 818
Standing aside, in case of libel • • *''•■.*.'.*.'. 82.S
Mixed, in Quebec **'** 826
And in Manitoba • * J * ' V ' " ' Igd 826
Summoning additional jurors when P-^ ^^^J^'^J^ ... 827
May be allowed to separate m cases less than felony.. ^^^
Saving of powers of court over ',".,''' 832
View by, proceedings on
(See Grand Jury.)
Jurisdiction. . . 47
Of quarter sessions, none in perjury ^ ^ ^ gg
Nor in subornation of perjury •.•••••• ' ' " * '''/^^, gu
And none in '---' ^^'f J^t^La c n^^^^^^^^^^
Not to try certain offences under Larceny jvoi ^^^
against the Person Act ^ g42
vested in two justices
'"^'ulturXtaUtering »*, p.n.% for ••• ^^^
the Person Act
i; '
I!
Kidnapping. ■^■^^■»-
^hat constitutes *'Agb
Kemarks on '.*...'.*." 216
Land. 217
Document of title to
Stealing,etc 278
What shall be set out in "indiitmeVt ^^^
Land marks. 727
Maliciously defacing, etc.
Except by surveyor in certain'caseV *.'. ^^"^
Larceny. **** 607
Act respecting
By bailee .....'....'.,', 278
Simple, punishment for. 281
Stealing cattle 290
Stealing written instruments." 291
Stealmg things attached to or crowing on i^^ '. ^^^
Steahng ores or minerals... "'^'^''^^ «" ^^^^d 306
Stealing from theperson ' 312
^"rglary , J' 315
Stealing in the house 334
In manufactories *.* 371
From ships, etc...!.".****'*,' 378
Things under seizure 379
% clerks, or persons 'hi pu'bVi; 'sV/vi;; ^^^
By tenants or lodgers... 381
By partners 404
Frauds by agents,' facVors'or* bankers ^'^
Obta.nmg money by false pretences *^^
Receivmg stolen goods 420
Offences not otherwise pro,;ided foi^.* ^^^
General remarks on 462
Requisites of offence 234
Thetaking .... 236
Taking where offend;; haV "a" ba;;'ch;;;; f/
Where possess on of eoods is nh»o • ^ • ' * * *. 237
Where obtained fion/^T^ .? ''"''"' ■^"'•«"^^' 240
in the nr7£^Zj^' *'^'""^ any fraudulent intention
Where offender has more than a *«,'."•* *i " * 248
goods ^ '^''° * 'P««'aJ property in the
By finding .'.'!.'.*.'.*.*;. 250
The carrying away....*.*. 265
255
PAGE
, 258
. 260
. 260
. 261
682
167
75
314
1132 INDEX.
Laboeny — {Continued.)
The goods taken
The owner
Against owner's consent
Felonious intent *
Place of trial of persons who have property in one part of
Canada which has been stolen in another 663
Search warrant to search in dwelling house, etc., for stolen
property
Laudanum.
Administering with intent to commit felony
Law OF MARRIAGE. (See Marriage.)
Of mine, attempt by holder of, to defraud Her Majesty, etc . .
LEGISLATURE.
Publication by authority of, bar to criminal information for
libel
Letter.
Demanding money, etc., with menaces, punishment lor
sending *.
Threatening to accuse of crime, sending with a view to
extort gain • . •
Threatening to kill, etc
Or to burn house, or kill, etc-, cattle
Letters patent.
Forging
Levying war.
Trial by court martial for
Punishment
Libel.
Act respecting
Punishment for publication of
Matters of defence
Publication by authority of Parliament • • •
Procedure on trial for
Plea of truth of alleged libellous matter
Effect of f'^oh plea •
Jury may give general or special verdict
On private prosecution costs may be awarded
And may be recovered by distress
General remarks on
226
613
617
625
625
, 490
31-32
. 31
225
225
225
226
227
227
227
, 229
. 228
. 228
. 231
INDEX.
Limitation. 1133
Of time for prosecution for treason ''^"*'
Kiotoue assembly, etc 31
Unlawful meeting for drill'. 33
For seduction and like offences' 36
Enfcmg girl into house of ilRame' «»
Procuring feigned marriage 69
Unlawfully solemnizing marriage'. 75
Ad vertisi ng reward for recovery of stolVn V 75
Frauds with respect to governn^en'^t^^^^^^^^ '''
L.m tat.on of tin.e for prosecution. Low ttn e : 5^2
Limaationastoactionsforpenalte al rr '"^"''•^•••- ^12
Lodger. penalties and forfeitures io47
Stealing property by \
LUOBI OADSA 404
Machinery. '" 269,270,449
Malicious injuries to
For agricultural purposes', 't'h'e' I'ike'.'. *.'.*. ^75
Magistrate. 676
(See Justice of the Peace)-
Malice.
A necessary element in murder
Remarkson 88
And for unlawful woundiW 98
Remarks f -. 163
In case of malicious injury to monZ'J""' ^65
necessary / ^ P^^^ty, against owner not
Against particular p^rso'n*,* 'ii" ca«*e 'nV '"•"•" ', ^^ ^
contract to supply gas, etc nnr ^"'"'"''1 breach of
Standing mute Znfrrl;!'^^^^^^^^^ 630
Whenpresumed isq'ifiV;;'."' 788
Malicious injctries to property. ''^^^'^^^' ^^^ -609
Act respecting
By fire to buildings 'a'n'd good's' t*h;rVinV. ^^«
To dwellmg house, some person being th;;;;n ''^
To house, out-house, etc . . . 561
To railway station ,][[[ 662
To Queen's dock yards, etc 565
To Public buildings 666
Any other building 666
. 567
ll
m
I! ' I 1
11 o A INDEX.
Malicious ikjuriks to PROPERTY-(Con/inu.d. ) ^^g
To goods in building 57O
To buildings, attempt ' ^^^ 571
To forests, etc., by negligence ,',......... 572
By explosive substances !*.!!'.!.. 674
By tenants, to buildings '.*..'.... 676
To manufactures, machinery, etc. ^^g
To corn, trees and vegetable products ;;**.*.'.'.'*.'. 679
Destroying hop-binds, etc .'.'.*.'.*.' ...580, 682
Destroying trees, etc '""''^ 533
Or plants, etc., in garden •*•• 534
And not in a garden '.'.*.*.'.'.**'."•'■'••••■ ^^^
To fences "'\ 585
To mines 686
Drowning mines, etc •• _^ 536
« Destroying, etc., engines >" J"'";^-;;;;' V;e;;;;i;ais, etc 588
To sea and river banks, and to works on ri\ er , ^^^
To fish ponds "'" 590
To bridges, etc I,*!*""*** 'V.*.... 691
Deslroymg turnpike gates, toll-bars, etc ^ ^^^
Injuries to railways and telegraphs . . '•;;;;;;;;;;;;;. .'.. 596
Toworksofart '"'^ 597
To cattle ..'.*."..*.'.'.'" 599
Otheranimals '** goO
Injuries to ships •• '\'.: ''.'!'' J' IL ' \','.\ .... 604
Placing gunpowder near vessel, with intent, etc..... . .^ ^^ ^^^
False signals, etc * * ' ' * * 605
Casting away, etc., buoys •*'' g^g
Injuries to poll books, etc *.'.'.'.",'. 607
To land marks ■ • • • • * * * * * J [ " Vwe'nt'y dollars . . 607
Injuries not before provided for exceeding twe y ^^^
Malicious injuries not before provided for ^^^
w;^;:"S;;;;i^;uu;^;;;;;;inb;^;'o;i^i;;m^^
Makslaughteb. 117
Eemarkson •' 117
How distinguished from murder • • • - • ^^g
Cases of provocation .'.*/.*.*.* 120
Mutual combat '."" ' ., 121
Resistance to officers of justice, etc • ^.^^
In prosecution of unlawful act..... ^^g
Or lawful act unlawfully performed
MANSLAi;oHTEK--(Con/m„crf.) ^^^^
^I'ling by correction ?*«»■
By negligence.... 127
By rnedicai practition'eV;;;';;;;k;;;;;:: J'f
Neglect of natural duties ^3.1
Other caeefl of manslaughter'. ^36
"y leaving opening in ice or iVm.'lV " •' ^37
^ person fallsTn anil is killed ^ "'"' ""' ^"'*":^> -^
Punishment for.... J82
Indictment for, what Vh'a'li be* set out in ^^^
Man-traps. 726
Setting, with intent to do bodily harm
Manufactory. 176
Rioters demolishing
M.»r:r "• "'" ^-"' - '»i- -■:.^.ud:::;;;:::;:;: .e\'
Stealing goods in process of.
Persons entrusted with eoodVfnr'V/e.' VV", ^^8
Daniaging, etc .f _' f^'^ fraudulently selling, etc. . . 379
Marriage. 676
Act respecting offences relating to ..
Solemnizing, etc., without authority* ^^
B'gamy ^ 76
Forging license 76
Forgmg register of '.'.'.*.**.*.* ^^'^
Master. 627
M.»,c.L P„.„„™»J "^ ''"". 'o»ppre„.,oe ,5,
Killing by
Mknaces. 133
Stealing in the house with
Sending letter demanding n.on'ey. 'eVc*.;;Vth ?^*
Demanding money, etc., with <^^3
Immaterial by whom made...'.'.' ^^*
Mens REA 622
Merchant. 214
Con version of money, etc., entrusted to his care
Merger 409
862
1136 INDEX.
METAL. ^■;°;
Fixed to ftny buikling, stealing <*""
Mill pond.
Destroying dam of
Minerals.
Stealing 'J J
Not wlien taken for exploring purposes d\6
Employee in mine taking witli intent to defraud 313
UnuHcd, punishment for leaving unguarded 182
The like after previous conviction 183
If person kille<l, owner of, guilty of manslaughter 183
Lessee of, attenjpting to defraud Her Majesty or other person
of money payable underlease 314
Concealing, or making false statement as to amount of gold
or silver found in 314
' Sale of gold or quartz without authority 134
Purchaser to execute and file instrument stating particulars of
his purchase ^1^
Unlawful possession by workman in, of smelted gold, etc.,
primd facie evidence that he has stolen same 314
Partner, etc., in claim concealing gold or silver found 314
Malicious injury to 586
Drowning ^^^
Damaging engines 586
Miscarriage.
Attempt to procure 218
Procuring drugs in order to procure 220
Monument.
Maliciously injuring 596
Motive. (SeeMalice) 140,160
MONICIPALITY.
Embezzlement by employee of 401
Criminal breach of contract by 630
Murder.
Remarks on 86
Definition 87
Malice prepense 8H
Of child 106
By poison 1" '
By killing officers of justice 109, HI
n
>f™"«-(C»„«„„.i., """* 1137
S5;:^."'"-°'i«ce
r;™=e'^ -••"::::::...::;::::?■ S
%Poiaon.,.. "^
By setting HreL«hn^r''«""P<'^der '^^
%«hootfn/at.etc '^•''*' :'. "^
Sending lettertS-- ':.:::::-' 57
Neglect to provide for wife or .K-u ^^^
NEOUOK.CK. ""'''^°^"^' apprentice, etc., with ,6g
Caufiing death bj.. ' ^'».. 168
• w^:'"'''''^'^^^^'''':::. m
, -;"^«r^^^;X^--"---- d
Newspaper. » etc., by lS2
fe:'°::rr'"^-^- ""
Wemarke.... ••»/»
^««e- ^« iv^ ;; »79
^ wes'Mss.";;;:;; -^.^^'Vr-S
Night. ^''3
4^ , "'^'^^'^ '" to house in
»'«■-, ..w«,:w::.'::*'::rf/°"- •••.■: s •
XXX 677
1138 ^«^'^
Notarial ACT*. 525
Forging ...•••••
Oatu. , . . X • - 1
Unlawful, penalty for adininiBtenng '••• ^
Wlicn not unlawlul '** 2
Solemn declaration in lieu of...... •• ^ ^
Remarks on what constitutea perjury m
Objection. 778
To indictment, when and how takea
Obliteration. 523
Of crossing on cheque
Obbtriiotino. ^„ twinW 891
Railway, by placing wood, etc., on trftok -^ ^^^
Useor business of railway __ g^g
By wilful omission or neglect
Offences against the person
(See Person.)
Offences aoainst the law of marriaob
(See Marriage.) .^^
Offences against public morals
(See Public Morals.)
Offences against religion
(See Religion).
""Zlme or ^. in d«cl..rge of hi- daty, punishment ta ^^
Err.lawi;hwViure-;.ntarn.i-onr^^^ «
Orchard. 311
Stealing fruit from ••••'* 533
Destroy ing fruit in
""''For payment of money, or delivery of goods forging 51T
Signing by procuration without authority ^^^
OfJustice of the Peace, forging
Ore. 312
OrOTRns. 1139
Stt'ftling from flshery ''*"■
Using clretlge in HHhery of '^^*
Dragging w.U net on fl^hin^g^ou^^^^ Ill
*''8liing for floating Mi allowed ^^^
Pardons '^''^^
Parent. 1074
Neglecting to provide for child
Pauuamejjt. 1^8
Conspiracy to intimidate.. ,
Partner. 226
In 'nining claim, concealing gold or silver found ,u
Stealing by **
Peace ] ' ' 406
Breachesof. (See RiotV)' '"^^
Penalties.
Limitation of action for
Penitentiary. " ^^"^^
Escape or felonious rescue from
Keeper, etc., of, negligently allowing' ;;;;pe'. .Z', ^!
Unlawfully procuring discharge of prisoner in .. . S
Punishment for escaping from ^^
Perjury. • 68
Act respecting
At common law defined .'.'.'.'.*. ^^
Promissory oaths not .".','.*.' *^
Nor false swearing ',*..*.'. ^^
Under act of Canada defined ..*.*.'.'. .'.'.*. '*"''
Necessary incidents of .'. **
Indictment for, what should'be alleged *inV. ^*\^f
Not triable at quarter sessions ^
Necessary proof on trial for .'*.*...'.' '*^
Two witnesses not necessary ^^
But evidence of one must be corroU'rii^ '.'..'..'. ^l
What IS sufficient corroboration * "q « ,
Evidence by judge's notes *^' ^^
Bemarkson section authorizing judg; 'on' iriki^ ';;;,•,;•; ''
61, 64
1140 INDEX.
, PAGE
Pbejcry— (Contoiwed.) ^ ^^
Subornation of ■*,*'"* 1*V ^lllirv * 64
Of same nature and subject to san.e punishment as perjury. 54
At common law g-
Attempt to suborn ,^
Record of conviction for, not evidence •
Several offenders may be joined in indictment for o"
No accomplices in • '' ,„
Two charges of, in indictment no ground for quashing 6b
Before act respecting extra-judicial oaths, remarks
Person, offences against. ^^^
Act respecting *.*.*.*.*.*.*..' 141
Homicide * j^^
Attempts 10 murder • ."i'r*"* ir,a
Acts causing grievous bodily harm or dangerous to life.. . lo8
Assaults jgiy
i Rape--- '.'.'.'.'..208,211,212
Abduction 2] 5
Child stealing 2i6
Kidnapping - ^iQ
Abortion 221
Concealing birth of child ^^
General remarks g^g
Stealing from the • • .-
Thing taken must be completely removed ^^^
Personation. ^gj
Of owner of stock
Petit larceny. 281
Abolished ....••
Petit treason. j^g
To be dealt with as murder ^^^
Remarks on
Pigeon, ^ 294
Killing, etc
Pillory. , v i oH 1068
Punishment of, abolished
Plant. 311
Stealing, etc ••• 3^1
The like after previous conviction ^^^
Used for food, etc, stealing.... ^^^
The like after previous conviction
In garden, maliciously destroying... •..• •••• ^^^
The like after previous, conviction ^^^
Not in garden, the like
INDEX. iij^^f
ThEX. ^*^
Of justification in case oflibel ^^"^
Form.... ^ 226,227
Form of replication .*. ^'^^
Toindictment,timemaybegranted"for'.V/.'. ???
D^la^ry, etc., indictnaent not to be abated for..;;:;:;;::::; 776
May be entered for prisoner * *. ^^^
Autrefois convict or acquit. . . . *'.'.' ^^^
Remarks...... 791
Greaves' MSS. note'.'.'..".".! '^^'^"^
Pleaofattaindr ."....".*.'.. ^^^
Poison. ^03
Murder by
Remarl£8 \\ 107
Attempt to murder by '^'ministering*.*.'.; f?!
Administering. witi» intent to cause bod ii;'h';;m. '.*.*. \tl
So as to endanger life ^^^
With intent to injure or an'n'oy ! .'.'.'.'."*.* Jf!
To procure abortion ^"'
Procuring abortion by use of! ! ^'^
■o 220
rOLL BOOKS.
Maliciously destroying, etc
Possession. ^^^
What is, for purposes of Larceny Act oca
Forgery Act, the like ^^"
And act relating to coin.. ^^^
Unlawful, Of bullion, etc., puii^hirle'nt' f;; ha'v'i'n'g .V.'. Sf
Of property, no excuse for malicious injury.... ni
Of stolen goods "^^
jy ....270,450,891
■rOWER OF ATTORNEY.
Agent, etc., selling property for his own benefit under 409
Previous conviction.
For leaving unguarded opening in ice, etc., not ground of
relief on second complaint ^
Stealing domestic animals after H^
Steahng trees, etc., after .
And fences, etc.... '^^^
310
1142 INDEX.
Pbeviods comiOTio^— {Continued.) ^^^
Fruit, etc gj2
Oi- cultivated plants, etc • ,*"*,''
Being found armed, etc, with intent to break and enter ^^^
dwelling house, after '
Uttering counterfeit coin, etc., after ^^^
Foreign coin, the like •• ' ' " * ' ' ' *
Destroying tree, etc., of the value of twenty-five cents, after. 582
Th: like after two convictions
Plants in garden the same
A..a plants not in garden ^^^
Injury to fences after ••••.• Vm R92
Proceedings on previous offence charged 75^, 8»Z
Proo^of *
Principal.
In firrt degree defined.... "• '•
And . 1 1 second degree ' * * * " * * * ' * 1 1 1 1 6
Second to a duel may be '
Abetto/s when indictable as •
In trea^ on and offences;under felony al 1 are ^ »
When Hil punished alike ••••'
Prison. g.^
Escape and rescue from "
(See Penitentiary.)
Prison breach. »,
Definition of, and remarks ..•• ■
Prisoner, , . . -j „«
Statement by before magistrate may be given m evidence ^^^
when . , , * g„Q
Statement by, to Jury
Privy ooL'N05t< ^^g
Appeal to, abolished '
Procedure. g^^
Act respecting g^^
Interpretation ...
Jurisdiction • ...
Place of commission and trial of offences »
Appreheuaioa v>f offenders
Enforcing s- p .;>earance of accused
Search warrants and searches
Proceedings on appearance ^
Secognizancefi to prosecute or give evidence »»"
I i
HSDEx; 1143
PKOCETiVni:— (Continued.) _ . __
B^l Jgi"
Delivery of accused to prison ggo
Proceedings where offender is apprehended in district in which
offence was not committed g93
Duties of coroners and justices » .*.*.*.*.*.'.'. 694
Removal of prisoners ggg
C h ange of V e n ue .'.'.....'.'.'. 697
Indictments , »qq
Preliminary requirements as to certain indictments! ! .... '. . 767
Pleas "■ ^^j
j:'^^-:-- !!*":;;;;.;;;;;;;; 804
Gorporations „« .
Juries and challenges , ' *** gng
View \ .'.'.'.'.'..'.'.'..'...'. 832
Swearing witnesses before Grand Jury ". ." * 832
Trial 835
Proceedings where previous offence charged '..'.... 892
Impounding docum= s '*]** qqo
Destroying counterfeit coin , .'.','.'.', 893
Witnesses and evidence * ' 894
Variances— Records ".'.','...'.'" 916
Formal defects cured after verdict 945
Josts... J.!//"".*.V.V.V.' 956
Restitution of stolen property 957
Insane prisoners .••...»...,»..,...,.» ,*. ' 962
Crown cases reserved * qck
Writs of error 9,^2
Appeals and new trials [^ 91^0
Special provisions *1023
General provisions ' JQ25
Second schedule. Forms of indictment .*.*/... 1031
Third schedule. Form of judgment, court of crown case's
^•"^^fy^d 103^
On trial for perjury, proof of plea in civil suit 66
On trial forenticing girl into house of ill-fame '.'.'.'.'.' 70
On trial for libel by publishing proceedings of Houee of As-
_ ««™bly 226
In offences against Coin Act, certain variances no ground
for acquittal gos
Proclamation.
Form of, in case of riot 33
Falsely purporting to be printed by Queen's Printer. . .*.' .... 624
1144 INDEX,
Pbomissobt note. page
Forging 612
Peopertt.
Meaning of word in Larceny Act 279
Demanding, on forged instruments 530
Damage to, exceeding $20 — punishment when none specified
in act 607
Any damage to, the like 609
Transfer of. with intent to defraud creditors 638
Proseoutiok 66
For treason, preliminaries 31
Commencement of, what is > 712
(See Limitation.)
Prostitute.
Loose, idle and disorderly person 72
Provocation.
118
66
In manslaughter r >
Public convenience.
(See Public Morals.)
Public morals 66
Act respecting... 66
Abominable crime 66
Seduction, etc . . ^ 68
Loose, idle and disorderly persons, or vagrants 71
Public service.
Stealing by persons in ........... » 401
Embezzlement... •••••• ^01
Refusal to deliver up money, etc., a fraudulent embezzle-
ment 402
Civil remedy, not affected i 402
Punishment. .
Only after conviction 1048
Different degrees of, to be in discretion of court ... 1048
Offence under two or more acts punishable under either. . . . 1048
Capital, on conviction by verdict or confession 1048
Sentence of death, what ^ 1048
' Provisions respecting 1048
Report to Secretary of State 1049
Prisoner to be kept apart.... 1049
I
INDEX. ij4g
Punishment— (Cbnftn«c<f.)
Provieiona as to execution of ',^.^1
By imprisonment '"*^
i'lace and manner of .*.*.*.'..'.'.".' ^^^^
In reformatories ^^^^
Whipping 1064
Attainder '/'' 1^68
General provisions '..','.'.. ^^^^
Punishments, pardons, bto. ^^^^
An Act respecting
Capital punishment .*..'.*.'.*.'.*.'.'.'.*.* ^^^^
Imprisonment * ^^^^
Reformatories. ... ^^^^
Whipping V.V.V. ^^^*
Su'-eties for keeping thVp;aiV/;;,d'fine8^ IJS
Sohtary confinement, pillory .... , "^*
Deodand .., 1068
Attainder .'..*. ^^^^
Pardons !..'.....!.* '^^^
Commutation of sentence'.*..'.! !?!*
Undergoing sentence, equivalent Vo'i pardon*. '.'.'.'.'. loll
General provisions
Quaker. 1076
Quarry. Sul
^' life"!: !T!'^T^ '""' ^'*''"^ ""guarded so as to endanger
The like after previous con victio'n !!.*.".! J« ?
Q.i™"™:' °"°"' ''*•' «"'"' "'■ ™->-«h;;;::;::::: m
Court of, no jurisdiction in perjury....
Norinforgery *'
Nor in treason or felony pu*ni*shabVe*wi*th*deat'h .'.'.*.* tn
Nor in certain other offences. ..... ^*
Quebec. 641
Raft. ' 638
Cutting adrift
g^g
II46
INDBX.
Railway. paoi
Placing or throwing things on, and other acts with intent
to endanger safety of passengers 177, 178
Throwing missiles at carriage of, with like intent 178
Endangering safety of passengers by neglect of duty 178
Stealing ticket for passage on 306, 435
Fraudulently obtaining passage by 443
Forging passenger tickets 523
Setting fire to station 666
Malicious injuries to 691
Breach of contract to carry mails 630^
Rape.
Punishment for 197
Assault with intent to commit.... 197, 202, 203,861
Remarks • 198
Evidence on trial 200
Greaves' MSS. note on 1081
Receipt.
False, by warehouseman of goods stored «. 414
For grain, etc., false statement in 415
Forging 617
Beociving stolen goods.
Where principal ia guilty of felony........ 443
And of misdemeanor 444
Where original offence punishable on summary conviction.. 444
Trees, etc., knowing them to have been stolen 310
Possession of stolen goods .i 450,891
Recognizaitoe.
Act respecting 1037
Render of principal by sureties 1037
Roll to be fined in court 1038
Estreat of 1039
Quebec 1042
By person guilty of perjury at trial 42
Of bail, forging 627
To prosecute or give evidence 690
Records.
Of court, stealing, etc 303
Forging 523
Clerk uttering false copy 524
Form of 940
The like after amer.dinent 918
Caanot becoQtrA<^ictjd 977
I ,
INDEX. 1147
Reformatort. l^^OV
Escape trom...o ...... r. ,. 68
Assisting at 5g
Harboring escaped prisoner 68
Imprisonment in , 1054
Reoister.
Of deed, forging , 525
Of birth, etc., forging 627
Making false entry in , 628
Relioion.
Act relating to offences against 64
Obstructing clergyman ^ 64
Disturbing Congregation , 64
Reprieve 1049,1051
Request.
For payment of money, forging , 517
Rescue.
Of prisoner from penitentia'-y flf
Definition and nature of offeace 62
(See Escapes and Rescues).
Reservoir.
Destroying dam of. , Jgg
Restitution.
Of stolen property after conviction ggf
Writ of 967
As to valuable or negotiable securities 958
Not to apply to certain oflTendei's 958
Remarks 959
Reward.
For recovery of stolen property, corruptly taking 459
Advertising, for return of , 460
RiNOma THE OHANGE.
Larceny by 244
RlNO DROPPING.
Larceny by , 246
Riots.
Act respecting 33
Riotous assembly 33
Unlawful meetings , , 34
Riotous acts , 35
Necessary proof on trial 37
114ff INDEX.
Roads. p^o.
Turnpike, indictment how laid for injury to 734
Robbery.
Punishment for 315
AflRault with intent 315
Definition of 313
What constitutes 318
Momentary possession of thintjH stolen suuicient 319
With violence 320
Prom the person 328
By person armed 331
And wounding 331
Rout.
Definition of 3g
Saorileoe.
Breaking into church, etc., and committing felony, or com-
mitting felony and breaking out 349
Salvation arht.
Meetings not illegal 39
Sea-bank.
Malicious injuries to 688
Seal
Forging 489
Search warrant.
To search for girl enticed into house of ill-fame 70
Disorderly house for vagrant 72
For stolen property 682
Mined gold or gold quartz ,, ^. 683
Timber,etc 683
Implements for forging or counterfeiting 683
Seduotio:.
Of girl under sixteen 69
Under promise of marriage..., 69
Seizure.
Larceny of things under 253,381
Assault on officer to recover goods taken under 184
Sentenob.
Of death, what 1048
How carried out 1049
By judge who did not try prisoner 1051
Special enactment for Halifax. 1025
Separate trials ,n , 724
I
■INDEX. 1149
Sbrvant.
Ste^lingby ^38^^'.
Embezzlement by person employed in capacity of.'.'.'.'. . . '333
Sessions OP THE PKAOK.
Jurisdiction \
Severance OF DEFENCE ,
Sheriff, ''^^
Proclamation by, in case of riot „«
To carry out sentence of deatli .nkn,
Ship. ' l^oO
Setting fire to, etc. , with intent to murder .... 1 53
Placing or throwing gunpowder on. with intent to do 'bijdiiv
injury. ^^vmjr
Stealing goods, etc., from '..'.'.*. '.*..".'.*. 1!!
Of Her Majesty, setting fire to ,,[[ til
Malicious injury to '
Setting fire to '.*.*.'.'.*.*.*.*..'.' ^^®
To prejudice underwriters •.''."..'.*.'..".'. fn^
Placing gunpowder near, with intent to'dee'tr'Jy J?
Exhibiting false signals in order to damage, etc.'.". fin!
Cutting away, etc., buoys *
Fastening, to buoys '.'.'....'.
Preventing work on, by violence.'.*.'.'.'.*..'.'.'.'. «?J
Shooting. *'^'
With intent to murder
Orto maim, etc.. .'.*.* ^^^
Shop. *"** ^68
Breaking and entering
Signal. ^^^
Railway, removing for purpose of obstruction roo
t alse, exhibiting, to bring ship into danger ,'[[" Hi
Similiter.
Judgment not to be stayed for want of q.^
Society. ^'^^
(See Abominable Crime.) ^^
Soliciting.
To murder
Solitary confinement.
Punishment of, abolished.
Sovereign.
Treasonabk oflPeiices against
1159 INDBX.
- PAOI
letting with intent to do bodily barm ''"
brABLB. -g2
Setting fire to
Stack. «
Of corn, etc., Betting fire to °"
In iluded iu wurd " property " in Larceny Act ^^^
^ . 4yy
Forging
Statement.
Of accused before magietrate "°^
May be given in evidence at trial ^^
By prisoner to Jury
Statute.
26 Ed. Ill, c. 2, not affected by Treason Act ^^
Wilful violation of ^^*
When not made offence ° *
And when made offence
Stealing.
See Larceny, cattle, and other objects of theft.
From the person
Steamboat.
Stealing ticket for passage on..... 305
Stock.
Forging transfer of *'J
Personating owner of *^^
Forging attestation to power of attorney for 494
Falsilying accounts of, in Government books, etc 494
Making false dividend warrants "^^^
443
Stolen goods
Beceiving. (See Receiving Stolen Goods.)
Strangle.
Attempt to, with intent to commit felony ^"^
SOBOBNATION OF PERJURY.
Punishment for
Remarks ••••• '••
Subsequent offence.
Procedure on ^^'^^^
Suffocate.
Attempt to, with intent to commit felony. IW
I
INDEX. 1151
SUIOIDB. _^„,
Aiding commission of ^ g
Two persons encouraging each other to commit 9, U6
Remarks -,,*
AttcMiiptto commit a misdeameanor.... ng
BVMMONS.
For appearnnce of defendant ^^8
SiTKDAT.
Warrant maybe issued on , gyg
Superior ooubt
Jurisdiction of, over any criminal case.. .. 641
ScpREME Court.
Appeals to g-g
Sureties.
For keeping the peace ^ ^ ^ jq.*
Surveyor.
Destroying land marks of cnj
TfiLEQRAPH.
Malicious injuries to ggi
Cutting, etc., machinery ** ggo
Obstructing working of. " * ggn
^"«">P» ..*."'.!!!.'.*.".'■'.'. 698
Telephone.
Provisions as to telegraphs apply to ggg
Tenant.
Stealing by ^^^
Malicious injuries to building by 574
TkNANT in 00> tfON.
Of niinini. claim, concealing from co-tenant gold or silver
found in < laim o,^
Tistamentary instrument.
Meaning of expression in Larceny Act 280
Stealing, etc '.'..'..'..'..'. 302
Criminal proceeding not to prevent civil remedy .*. ' 302
Forging :....... 611
However designated '" 631
Threats.
Act respecting .«._
Sending threatening letters '.'..'. 613
Trade combinations. ['" gog
Stealing in house with ..*!!!.".'.!..'."* 347
^^^2 INDEX.
Tdbesiiino maohink.
Destroymg ^^^
TlOKKTS,
Of railway, etc., forging .„
Or stealing *.*.*.".".;;;.'.*.'.'.'.*.' 305
Timber.
Making false statement in receipt, etc., for 415
: Unlawful po««eH8ion of '..'.'.V.VVfiT. 908
Defacing owner's mark .,-
Setting fire to \[['/' ^^
SuHpecteti of being stolen, search for *. '. '. '. '. * '. '. ', '. * '. '. '. ', \ * * *. ' *. *. 6^3
Time.
For prosecution, how computed 713
(See Limitation.)
Title.
To goods, document of „,„
And to lands '.'.*..*.".'.*.'..*.* 27ft
Document of, to lands stealing, etc .*!.'.*.'! .,'''.'. ',\',\\\ \\\\\\ 3qJ
Toll bars.
Destroying
Toll house.
^ ^'''^^^'"g -... fiOl
Trade.
Combination to obstruct ^„-
I'reven ting exercise of, by violence 537
Combination, act in pursuance of no offence unless'p'uniVhabl'e
by statute *^ ^^9
Treason.
Act respecting
Offences against the crown [/'^ oq
Procedure , |'*| ,,
Foreign aggression .'.'.'.'.'.!.' 31
Abettors in, indictable as principals in first degree*. V. '."..' .*.**.* 12
Jurisdiction of courts over " z.^,
. Severala acts of, may be charged in indictment.'. .'.'.'.*.".','.'.'.* 725
Proceedings on indictment and trial *.*.'.".!'.*. 864
Trees,
In park, etc., of value of $5, stealing 307
• Orgrowingelsewhereof valueof $25 .V.V.*. '.!!*. *.!!.'.' 307
INDEX. 11 Ko
TanM-^Continued.)
Of value Of 2fic at Iea«t, Btealing. etc 7oS
T.el.ke after previons conviction ?J«
After two convictions... "
PuniHhn.ent for unlawful possesaioi; of*;;!.'.* qJJ
8ettin,» fire to, by negligence "
To plantation of ^^^
Of the value of $6, maiiciou'si; deVt;;;,*,;;;; Ill
Of value of $20, the like ^ ^^®
Ami of value of 25o ^^^
Puni.hn.entfor injury to/when L*o'n7p;;;;d;d by' a'c't;;;;;;; 609
•i RIAL*
Prisoner to make full defence o,-
Address of counsel ]'[ ''
Depositions may be inspected..; "; lH
Prisoner entitle! to copy of deposition an'd'i'n'di'c^.'n'ent;'.;;;:; 853
Person imlicted for misdemeanor, and found guilty of felony,
not to be acquitted ' fifsa
For tre'alof M ""'T' ''" ^"«l'^- c-^-'i-ion'of'^ff;;';;. 863
krel^^"^* "'•''"' '""'' proved amount to treason... 864
^or treason, no mquiry concerning lands or flight 864
For murder of child, conviction may be for concealing birth. 865
Felony, conviction for bodily harm HI
Felony by poison conviction for misdemeLnVr;;;; tao
J elony including assault ^
Robbery, verdict of assault wi'th'intenr.;;;;; ttt
Burglary, conviction for house-breaking. ... 2 J
House-breaking, proof of burglary no defence .;;;; ; Tot
Embezzlement, verdict of larceny and »*« ..r.d. . 884
Falsepretences, when facts amount to larceny... tH
Frauds by agents the like ^^^
Larceny, verdict of false pretences ;;;;.'.* «??
When indictment for stealing contains coi'n'tVo'r'rVcdWn'.;'" 88fi
Larceny, verdict of fraudulent appropriation .,,;'=''^'"°- - ^86
Several acts of larceny proved, crown not required "t,;;'!;;;" 888
r:Sv^r;.r.r:::.:'."'" ^^^'^" ^^'^« - ^^^^
Evidence of previo'u's'ionviaiiVi'ri'su;;;;;;; ;;;;;; m
Verd^ict for uguring buildings by rioters on trial for d;mdi;i.:
Proceedings when pre'v'i'ou's'offfe'n'c'e ;,ha;g;i;;;;;;;;; ^^1
Place of— See Venue. °^^
Y y Y
v^Xi
!'i
1154 INDEX.
Trustee. page
laeaning of word ill Larceny Act 278
Fraudulently disposing of property 411
No prosecution of, without consent of attorney general of
province 411
Tdrnpike gate.
Destroying 591
Undekmkino.
For payment of money, forging 517
Underwriters.
Setting fire, etc., to ship with intent to prejudice 600
United kingdom.
No appeal in criminal case to any court of 979
Unlawful assembly.
Proclamation to disperse , 33
Punishment for not obeying .33
Arrest of ofFenders , 34
For purposes of drill, prohibited 34
Riot, rout and affray defined 36
To witness prize fight 38
Other cases , 39
Uttering.
Forged note 480,508
Counterfeit coin, etc » ....542, 544, 549
(See Forgery.)
(See Coin.)
Vagrant.
Who shall be deemed a..., 71-72
Punishment of 72
"Warrant to search disorderly house for 72
May be committed to house of industry, etc 73
Valuable security.
Meaning of expression in Larceny Act 279
Stealing, etc 295
From the person 316
In the house 371
With menaces or threats 374
Clerk or servant stealing ,.,., 381
Or embezzling 383
Stealing by person in the public service 401
Inducing person to execute, by fraud 440
PAGE
5, 917
matters not material, etc 917
918
311
311
578
INDEX. 1155
Variance.
Between indictment and evidence 916^17
In names, etc., and other matters not mat^^riVl * 'IL oi -r
Proceedings after amendment
Vegetable products.
Stealing, etc
The like after previous conviction
Setting fjre to
V^r"^'^' •'"•••• 9«3,991
In case of offence within jurisdiction of Admiralty of England 646
Death m Canada of stroke received abroad, and vice versd. . . 646
Uitences on confines of districts.
On person or property in transit
On highways, rivers, etc
After dissolution of counties
In provisional districts, etc......
In Gaspe
Perjury, bigamy, etc ^ „
Accessories '
652
653
653
654
355
65
657
m forgery g^^
658
658
659
Forgery and accessories
In kidnapping
Receiving stolen goods
Bringing stolen property into Canada. '."..'! !
Having property in one part of Canada stolen in another. .... 662
U ttenng counterfeit coin ""^
Changeof "\ ' ^^^
Transmission of record, etc ^'2
Verdict. " ' "^'
Formal defects cured after
(See Trial.)
Viaduct.
Destroying
War. '
Levying, against Her Majesty is treason....
mattiil ^*"^'^* ^'J' foreigners, offender to be" tViedb^'couVt
945
590
30
Warehouse.'"''' '"^J^''* '"^ ««™P^"^ with7oVeig;;;;;ti;; Hke'.
31
32
Stealing from ,,,
Setting fire to V.V .'.'.*.' .'.'.*.*.*.'.'.' * ^^^
llioters demolishing .'......'..... ^H
Injuring , '
35
00
1156 • INDEX.
Warrant. ' ^aob
In case of treason, when issued 31
Arrest without, in certain cases 664
For appearance of accused 678
May be issued on Sunday 679
For disobedience of summons 680
Requisites of 681
Execution of 681
Backing 682
For appearance of witness 686
Warrant for payment op money.
What is, in Larceny Act 278
Forging 517,521
Weapon.
Inflicting injuries with or without 163
Committing offence with 331,367
Wharf.
Stealing goods, etc., from 379
Whipping.
For attempt to choke, etc., with intent to do bodily harm ... 166
For administering chloroform with like intent 167
For indecent assault, etc 207
Punishment by, manner of 1054
Wife.
Neglect to provide food, etc., for 168
May be a witness on prosecution of husband for 169
Witness in other casee , 899
Will.
Stealing, etc 302
Forging 511
However designated 531
Witness.
Enforcing attendance of, at trial 894
In Canada, but without jurisdiction of court 894
Confined in penitentiary 895
No incapacity from crime or interest 896
In assault, defendant and wife competent 899
Ip other cases not 899
Quaker, etc., may make affirmation 901
Deposition of sick person , 901
Use of deposition at trial 902
INDEX. 1157
WiTSEas— {Continued.) „.„„
' PAGE
Proof of previous conviction of, may be given 909
Discrediting ^^_ q.„
Contradictory statements by '.*'.*.*.'.' 'dU 915
One not sufficient, in case of seduction, etc ..........' 69
Nor procuring feigned marriage '.'.V.V.V.* 75
Wife may be, on prosecution of husband for neglect'.'. '.'.'.!'.! 169
Also person charged '" ^rq
When prisoner may be, for or against his co-prisoner! '. '. .... 897
Woman.
Procuring abortion of 21«
Forcible abduction of, with intent to marry .'.'.'.' 211
Concealing birth of child ...........' 221
Wood.
Setting fire to ^ g-o
Stack of, setting fire to g-j^j
Woolen goods.
"S. 378
Destroying ^^^
Wounding.
What constitutes a... i-a
■nr-^t • -loW
With intent to murder j.k,
Or to maim, etc '.'."" 15«
With or without a weapon * ' ' ^go
And robbing '^ „„,
Writ.
Of election, stealing, etc ^no
Of execution, misconduct of officer intrusted with .'.'.* 638
Writ of error.
How tested and returnable 070
On what founded q«„
Issued on fiat of Attorney General /[ 974
Proceedings in court of error ^ j.
Remarks , '...'.*.'!]!..... 973
Writing.
Meaning of expression in Larceny Act 280
Fraudulent alteration of, to bo forgery * 488 803
Yarn.
Cotton, stealing, etc 3^0