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Mops, plates, charts, etc., may be filmed at different reduction ratioa. Thoae too large to be entirely included in one expoaura ara filmed beginning in the upper left hand corner, left to right and top to bottom, aa many framea aa required. The following diagrams iiluatrata the method: Lee cartee. pianchea, tableaux, etc., peuvent Atre filmte A dea taux de rMuction diff Arents. Lorsqua le document est trop grand pour Atre reproduit en un seul ciichA, il est film* h partir de Tangle aupAriaur gauche, de gauche h droite. et de haut en baa. en prenant la nombre d'imegea nAcassaire. Las diagrammas suivants illustrant la mAthode. 1 2 3 1 2 3 4 5 6 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. 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^!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 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„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 ■i! '% MMp^ ■ l^nP' ■ ^^Hl? fl |H^ J j^H^I B %.. ,% ^^>, o^, %%^^% IMAGE EVALUATION TEST TARGET (MT-3) /. ■^ ^^^ <^^ $< ^ ^/ ./1V*V^ ^ <.^^ 4^ # % M^. .mU. & ^ 1.0 I.I 1.25 us Mi 2.8 ■AO 1.4 2.5 1.6 V] <^ /a ^P: '/ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, ;^.Y. 14580 (716) 872-4503 '^^ -C<'' Wo Vj \ m ^ 38 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! li I ^ M u I 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. °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. ■• 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", '^. 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^• 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" MaliffK. -''''^ '° ^^^*« <^ 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 ^. * ''"■'^^'^''• 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. 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 ^R IMAGE EVALUATION TEST TARGET (MT-3) % »y A ^ ,<^% ^ />1^^ <■ ^ \%' 'm 4 ^ 1.0 I.I 1.25 If 1^ i&k lAo 111112.0 1.4 1.6 ^ /i o ^1 (T:. Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. M580 (716) 872-4503 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. 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 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<) '- « 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.-^ 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. jifi: Ml U: 176 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 S H i r ■■V 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 I I i i :li 182 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. ^ !'• s 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. O^ •s> M ■•^>> dm IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ■ 50 '""^^ la" m I.I 1.25 M 22 i4_ III 1.6 1^ 1- u 6" Photographic Sciences Corporation >/ ^\ / o /- 1 fV r/. fA •s^ \\ < 't'"' ^ ^■i* 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) (S72-4503 ^''^^' ^ 226 LIBEL, i . Ii 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 «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. 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. 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. ^«,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. 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 ;; ^"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. "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. *;:^ "■• »^*""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 i] 1 1 1 H |:^H ,1 Kj '^H ; 1 ^ E ^ 1 R ^M \. V 1 ■ -1 I ■ i r , 'l J H ■ ^ i^ ^^l' ^^H - i : r : i : ' ■ i' ' ! 1 1 i : ! t ! t|D| '^ifl^fi; 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 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 ' ' ^" »'=""'' '"'«-»» » -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 ^^"' '""^ *" Priaonerfora moment. s'eSe'frotrSX;.:^: m^ i\ &. IMAGE EVALUATION TEST TARGET (MT-3) {O 4s^ ,^^ V^' . w r^ v S? ,,,^ fe^ fA '*z^ fA 1.0 I.I 1^ M IIIII2.5 2.0 1.8 1.25 1.4 1.6 ■a 6" ► ^ /; * Photographic Sciences Corporation > ^ a^ <'* '^ 23 WiST MAIN STREET WEBSTER, N.Y 14580 (716) 872-4503 A^ fA 320 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 « 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. 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. 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. 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, iaeci. 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"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° 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«-'«» 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. 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. 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. 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„ '^'^, ? ">«• 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 H ' ? fR'flw .1 H : 1 i ; i I ! 1 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-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 artion 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 !^'<| tf !^:, ^aj %. ..>^. m VI / ^^^/ •^ >- °w IMAGE EVALUATION TEST TARGET (MT-3) I.C I.I ma !!! 11^ ^ S lis illliM 2.5 2.2 1.25 1.4 1.6 Photographic Sciences Corporation // J m \ m^ ,v \ LV ?ij« 5V <^;. '^oN 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^ ^'^ 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 I "I' ' ai ml ' 1 1 : -I'lWf 1 ^^^^^Kl. ^ 4 < i 5 BHI 1 416 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. 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 CO ( '■: . il-#' • : -A 418 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 M' i 4 Hi ^B 1 1 H^H Jl ^^B^l^^l ■raH ■» ^ t ^^HI^^H ^^^^I^^^^^B ■^H K^''M.i HP m 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'"" "' \.4»r ■Vi| r'i. ,.-V 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 ! » ■ ' 'I f ' 1 , i 1 1 ■ig ■iaHHiM ^■mmb .mM F i 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. „ 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. 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 ■'• -• '»' 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. iiaTt ■• ^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 "'°^<'««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<>'»«"«» ^ • 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. .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."_5ot 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 I:. I ^^, t# :il ;L Hi 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 ,i i. I :.\f-i in M 'A 'i9 . ; i^ ''O 1 ■ f 1 '.'f i| F 1 f '^1 1 t ■ i i : i 1 .^^1^ .-■^-^1 ;it*a8a|| glMMMMMMH| i • i HI 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 • «■; .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. ' 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 i 1 *, ill 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 T^!ffl iip if^^K , ,1 ■i I ; M 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 ', 1 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"' '""«««* °^ 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. ",,«, 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' «»«'» 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, I J IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 1^ 1^ m IIIIM Ui m IIIM m us 1^ 1 2-0 UUI- m !.4 1.6 =s 1 ^ V] ^ •7] S&.. If '* 7 /^ ■^ m Photographic Sciences Corporation \ •^ ^ ^v \ V V V^ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^ & ^ i^ 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« 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. ■ 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 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. ■■ 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, deei 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 perPPer 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 ' "''»■" '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;'''''''' ^"^^ ^-^-"' " 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. -, 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 : .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"°''^«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. « ^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".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 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. ^^ 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, "• ^^ 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 <=' 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 ^ ' ™™ ™ 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. : 4'' '!■>' i IMAGE EVALUATION TEST TARGET (MT-3) V /, O «?> !#■-. ^? //I. ^ Ux iv ^4^ ^ 1.0 I.I 2.5 112.2 20 1.8 1-25 1.4 ||||ii.6 ^ 6" ► J lie Scmces Corporation ^ s \ ^v^ ■^ o '^ ^i o^ 23 WEST MAIN STREET webste;;, N.Y. msso (716) 872-4503 i/j 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. ---' 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, ^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'-~ 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-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^ao» 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 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 flander 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, lFos«, 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, «. . % 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 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. " 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 I I 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«^««"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 '>""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.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 ar ^ 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 man 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^.« 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 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" ^\„ *""»•"«»' 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' ^*"- » -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. •*«- 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 worde 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. 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 "'""='"""' '' "-/«»« ^™'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 /; 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 »' "'" «%, 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^- " 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"° ''"■''^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^^' , ''''"' *''• '^"" 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^' ™ 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"' »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'-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„ ,^' ™" 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 « 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. ' "" «"^ ''^-'h ?""." '™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 >« - 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 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; '""'""'"'■». «"=»^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 thon 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 ^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 - --^-" 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«""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 ™ «"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 " ''"""™ ■°« -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 ^«. 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) ^/ '^..^^ 4ij V4 1.0 I.I 11.25 [f IM IIM ■^ 1^ 1 2.2 t V^ 12.0 6" 1.8 U 11.6 V] <^ /2 7. '^a ^ w Oy^-" 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 « 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«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.ifarf 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»« «»". 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^ ™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 '} \ 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. ' 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 2qn„«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« 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, ee 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 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« 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., ; '"' "^ """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»' «- 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•« 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 ">° 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. " 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. 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^ 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. 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 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 .}»■ i'l ^, IMAGE EVALUATION TEST TARGET (MT-3) 1.0 !f i^ III LI 1.25 2.5 U IIIIII.6 6" '/ Hiotographic Sciences Corporation 23 WKST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 \ iV # '^ o *• *> ^ & >4 \ ^ 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. 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««.. 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. ' 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"^ ^"'""^ "'« 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. 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 '""'' 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. « 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« "^'"^^ 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._steaImmpnson 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. '' "' "" '^'" ""' ^'^ '''' '^'/ 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' '?' «'"'«' »"'-**? "■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 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. 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 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 ■^ 12.8 2.5 1.4 6" LP 1.6 P>i <^ /2 ^1 CW Photographic Sciences CoriToration 23 WEST MAIN STREET WEBSTER, N.Y. H580 (71t) 872-4503 ^^ <> 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.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«'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. , ! 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' ^ ' ""^ ™"^^ -' 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 .. 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" 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 killef™"«-(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-«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